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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"

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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 

0 

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  ; 
0  ('.  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,  0  \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,  0  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    0  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.,  0  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,  0  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/,  0  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;/, 

0  H.  (.t  (i.,  528 ;  0  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 
and  the  other  insolvent,  defendant  is  entitled  to 
security  for  costs. 

McDougall  v.  Geldert,  James,  59. 

65.  Security  for — Absence  of  plalntlff- 

Domicil— An  order  for  security  for  costs  having 
been  obtained,  in  consequence  of  plaintitt  hav- 
ing left  the  Province,  the  plaintiff,  a  seaman, 
applied  to  have  the  same  rescinded,  on  the 
ground  that  he  intended  to  make  only  short 
voyages  out  of  the  port  of  Halifax,  without  any 
intention  of  remaining  permanently  away.  He 
was  a  native  of  Newfoundland,  and  had  b^en 
sailing  in  British  ships  from  and  to  the  British 
Provmces,  United  States,  and  the  West  Indies. 


393 


COSTS. 


394 


Applicatimi  refused,  as  this  was  not  the  clomi- 

cil  of  plaintitl',  and  as  he  might  at  any  time,  in 

making  si'^^l'  voyages,  change  his  intention  anil 

not  return. 

Harri'<OH  v.  Hilton,  1  N.  S.  D.,  22. 

66.   Security  for  C08ts  — Action  on  bond 

for  security  for  costs— Should  be  summary 
where  amount  in  dispute  is  under  $80  — 
Demurrer  will  not  lie  to  "grounds  of  defence" 
—Costs  refused  to  party  who  has  contributed 
to  an  error — A  Ixmd  was  given  as  seourity  for 
costs  on  an  appeal  to  the  County  Court  from  the 
Magistrate's  Court.  An  action  was  brought  on 
the  lioiiil,  anil  pleas  were  ])lea(led  as  to  a  decla- 
ration cause.  Plaintiff  demurred  to  the  pleas, 
and  defendant  joined  in  demurrer.  The  de- 
nnnrer  liook  showing  on  its  face  that  the 
iinKJunt  actually  in  di-spute  was  under  .'<40,  the 
County  Court  .Judge  treated  tlie  suit  as  a  sum- 
mary suit,  and  the  pleas  as  grounds  of  defence, 
and  set  aside  the  demurrer  on  the  ground  that 
ileniurrer  will  not  lie  in  smnmary  suits. 

Hilil,  that  he  was  right  in  doing  so;  also, 
that  defendants  were  properly  refused  costs,  on 
tla'  judgnient  in  their  favor  on  the  demurrer,  at 
they  had  eoutributcd  to  the  error  liy  pleading, 
and  in  otiier  ways. 

Woodlock  V.  ])!rk!i  if  aL,  6  R.  &  G.,  2W) ; 
6C.  L.  T.,4r)2. 

6».   Security  for  costs  —  Defence  on  the 

merits— The  defendant,  applying  for  sectnity 
on  the  ground  of  plaintiff's  residence  out  of  tlie 
jinisdiction,  swore  that  the  action  was  on  a  pro- 
missory note  against  defendant  as  an  indorser, 
anil,  on  the  common  counts,  that  the  defendant 
was  never  indebted,  as  alleged,  and  had  a  good 
defence  on  the  merits,  and  believed  he  would  be 
able  to  substantiate  a  good  defence. 

.Vnd,  further,  that  plahitiff  hail  previously 
sued  for  tiie  samo  cause  of  action,  in  which 
ilefeiiilant  had  obtained  judgment,  plaintiff  not 
having  given  security  for  costs  as  ordered. 

//(/'/,  that  the  appeal  from  the  rule,  refusing 
the  security,  must  be  di.snnssed. 

Snnh/f,  tluit  defendant  had  not  "mack  if 
apfiHir  ■'  by  affidavit  that  he  had  a  good 
defence. 

Earrs  v.  Darling,  4  R.  &  (J.,  128. 

68.  Security  for  costs  —  Defendant  com- 
pany incorporated  in  Province,  but  registered 
m  England — Security  for  costs  oi'dered  where 
the  insolvent  plaintiff  company,  though  incor- 
porated in  the  Province,  was  registered  in 
Knglaml,  and  hail  its  directory  and  place  of 
business  there,  and  the  parties  using  the  name 


of  the  company  in  tlie  suit  were  not  in  the 
Province. 

Capii  Breton  Co.  (Limited)  v,  Dodd  tt  ah, 

R.  E.  D.,  326. 

I    69.    Security  for  — Discretion -Appeal - 

An  appeal  was  taken  from  an  order  of  a  County 
Court  Judge  discluirging  an  order  ni<  for  security 
for  costs,  where  it  was  shown  that  the  plaintiff, 
although  resident  out  of  the  Province,  was  a 
native  and  a  British  sid)ject  and  iiad  considera- 
ble real  and  personal  estate  within  the  jurisdic- 
tion, and  there  was  some  evidence  that  she 
intended  to  return. 

I  Held,  that  the  granting  or  refusal  of  the  stay 
of  nroceediiigs  by  tlie  County  Court  Judge  was 
a  matter  of  discretion  and  that  the  discretion 
had  been  rightly  exercised  by  the  Judge. 

Card  V.  H'ce/,-.s,  4  R.  &  G.,  9;i. 


70.  Security  for  Costs -Married  Women's 

Property  Act  of  1884— Liability  of  wife's  sepa- 
rate estate  for  costs  —  Order  for  security  in 
excess  of  the  Statute  set  aside—  Appeal  from 
matter  of  discretion  —  Costs  —  Tlie  Married 
Women's  Property  Act  of  1884,  chap.  12,  sec. 
l(t,  provides  tiuit  any  judgment  recovered  by  a 
husband  and  wife  in  any  suit  arising  out  of  or 
in  connection  with  the  wife's  property  shall 
enure  to  her  separate  benefit,  and  that  any  judg- 
ment obtained  against  them  (except  for  her  tort) 
shall  biiul  her  separate  estate  alone,  etc. 

In  a  suit  brought  by  a  nuirried  wonum  for 
injury  to  her  separate  property,  the  husliand, 
who  was  insolvent  and  absent  from  the  Pro\ince, 
was  joined  as  a  party  plaintiff,  and  an  order  was 
obtained  requiring  the  wife  to  give  security  for 
the  defendant's  cost,  or  to  appoint  a  next  friend 
wlio  siiould  justify. 

Held,  that  althoui^h  there  is  no  appeal  from 

a  discretionary  order  of  a  Judge,  this  shoi;'d  be 

i  confined  to  case-  liuit  are  purely  discretionary 

i  where  the  disc:  etion  has   been  exerciseil  on   a 

right  ])rinciple,  and  where  no  ciuestion  of  law  is 

i  involved,  and  the  order  in  the  present  case  having 

I  been   granted   under   a,  mistake  as  to   the  law 

respecting   the   liability   of  the  wife's  separate 

estate  for  costs,   the   discretion   was    wrongly 

I  exercised. 

{      Aho,  that  the  order  was  bad  as  creating  a 

liability  on  the  part  of  the  husband  to  pay  costs 

exceeding  that  imposed  by  section  1(5  of  the  Acts, 

Card  v.  H'enkn,  4  R.  &  (}.,  9.'},  distinguished. 

Bohaktr  tt  ul.  v.  Mor^e,  7  R.  &  G.,  165  ; 

7  C.  L.  T.,  247. 

71.  Security  for  costs— Order  liy  Protho- 

notary — The  power  granted  by  Chapter  94  of 


395 


COSTS. 


39C 


the  Revised  Statutes  (4th  series),  to  Prothono- 
tai'ius,  to  give  orders  for  security  for  costs,  for 
better  particulars,  and  for  furtlicr  time  to 
plead,  is  limited  to  the  county  where  the  writ 
is  returnable. 

CummiiiijH  V.  lirovm,  2  R.  &  C,  303. 

72.  Security  for  costs— Stay  of  proceed- 
ings operates  only  against  plaintiff  —  A  stay  ' 
of   proceedings   ))y   rule   for  security    for  costs 
operates  against  tiie  plaintiff  only. 

MclJuwjall  V.  McDomdd,  James,  91. 

73.  Security  for  costs— Practice  wliere 

plaintiff  fails  to  give — It  is  not  necessary  to 
move  tlie  Court  for  leave  to  enter  judgment 
under  4tli  U.  S.,  c.  94,  s.  Ill,  wliere  ])laintitf  has 
failed  to  give  security  for  costs  witiiin  twelve 
months  after  service  of  a  I'lde  therefoi-. 

Orny   v.  McKeeu  ;  ydson  v.  Fitllnii, 

2R,  &C.,402.  , 

74.  Setting  :>si(1c  pleas  as  false   Costs  on 

failure  to  set  aside — Whc.-'j  there  is  an  appli- 
cation to  set  aside  pleas  as  false,  and  atlidavits 
in    rojjly,   alleging    that    the    pleas    are    true, 
thougli    the  .Judge  will  discharge  the  rule,  he  ■ 
■will  in  general  direct  the  costs  to  be  costs  in  the  ! 
cause.  ' 

Donohoe  v.  lionku,  "2  Thorn.,  233.  j 

75.  Setting  Oir  costs -In  January,  1879, 
plaintiffs  obtained  a  rule  setting  aside  defend- 
ant's demurrer  witli  costs,  and  in  July  of  that 
year  the  suit  terminated  by  a  decree  in  favor  of 
defi^idant,  with  costs.  Previous  to  this  decree 
the  defendant  became  entitled,  on  the  connnon 
law  side  of  the  Court,  to  a  bill  of  costs  against 
McClelland,  who  was  the  real  party  in  this  suit, 
the  other  plaintiff  being  merely  a  nominal  party  | 
to  the  suit.  The  costs  on  the  decree  in  favor  of  ■ 
the  defendant  in  the  suit  first  mentioned  were 
paid  in  full  by  McClelland,  who  did  not  apply 
to  have  the  costs  due  him  on  the  rule  set  off  or 
deducted,  and  McClelland  having  died,  plnin- 
tifl's'  attorney  entered  a  suggestion  and  issued 
execution  for  the  bill  of  costs  on  the  rule  to  .set 
aside  tlie  demurrer. 

Held,  that  defendant  was  entitled  to  have  the 
costs  in  the  comnum  law  suit  set  off  against 
the  costs  on  the  ride,  altliougli  there  was  a 
nominal  party  in  the  suit  brought  in  tins  Court 
who  was  not  a  party  in  the  common  law  suit. 

V"i''»"',  whether  cause  of  action  survived  to 
the  nominal  plaintiff  within  the  meaning  of  R. 
S.,  cap.  94,  sec.  103. 

Barton  <:t  a/,  v.  Baldwin,  R.  E.  D.,  392. 


76.  Settlement  without  attorney's  con- 
sent—  The  Court  will  not  set  aside  a  release 
obtained,  pending  suit  by  defendant  from  plain- 
tiff, nor  compel  the  defendant  to  pay  plaintiff's 
attorney  his  costs  where  there  has  been  no 
collusion. 

Johnnlou  v.  Mathi'son,  James,  92. 
McFarkuw  v.  Smilh,  7  R.  &  (i.,  ")41. 

77.  Submission  —  Award  —  Costs  —  Tlie 

rule  of  reference  contained  the  following  clause  : 
"That  the  .said  arbitrators,  etc.,  shall  have 
power  to  order  judgment  to  be  entereil  in  this 
cause  either  for  the  plaintiff  or  the  defendant 
with  or  without  costs,  or  to  order  judgment  to 
be  entered  both  for  jjlaintiff  and  defendant,  with 
or  « itliout  costs,  as  they  shall  find  the  several 
issues  either  f<jr  or  against  either  party." 
Award,  "  that  judgment  be  entered  for  the 
l)laintitf  for  tlie  sum  of  one  dollar,  and  that 
tlie  defendant  jiay  all  the  costs  of  the  reference 
and  award." 

Hchl,  that  the  award  was  bad,  inasmucli  as 
the  arliitrators   hail   exceeded   their   powers  in 
giving  costs  of  the  reference  anil  awar<l. 
Chitrrh  Wardminf  Parrshoro'  \.  Kiinj, 

2  R.  &  C,  ;iS3. 

Oil  aj>])ial  to  till'  Siipriiiif  Court  of  Caimdn, 

Held,  that  the  directing  payment  of  costs  of 
the  reference  and  award  was  bad,  but  might  be 
abandoned. 

St.  f.'ronys  Pari-h  V.  Klmj,  2  S.  C.  R.,  143. 

78.  Submission -Provisions  as  to  costs- 
Discretion  of  arbitrators  not  exercised— The 
parties  entered  into  a  submission  by  which  they 
referred  all  the  matters  in  difference,  etc.,  and 
proviiled  that  the  costs  of  the  cause,  and  of  the 
reference,  or  in  any  matter  relative  thereto, 
slioulil  be  in  the  discretion  of  the  arbitrators: 
and,  further,  that  judgment  shouhl  be  entered 
upon  such  award  for  the  amount  thereof,  and  of 
the  costs  of  suit  and  reference  in  the  same  iiiiin- 
ncr  as  if  the  verdict  of  the  jury  had  passed. 
The  arbitrators  made  an  award  in  favor  of  de- 
fendant, but  saiil  nothing  us  to  costs. 

Jfi/il,  that  the  award  must  l)e  set  aside. 

/'()•  Rigby,  J.,  tliat  the  cause  should  l)e  re- 
submitted to  the  arbitrators. 

Pir  McDonald,  C.  .).,ifi-<s,  iitiii,/,  that,  iilthough 
the  provisions  of  the  submission  as  to  costs 
were  in  apparent  ctniflict,  the  intention  was, 
that  in  the  event  of  the  arbitrators  not  exercis- 
ing their  di.scrction  as  to  the  costs,  they  should 
follow   the   award,    as    provided    in   the   latter 

clause  of  the  submission. 

Tory  V.  The  Muiiinjialiti/  o/Giti/xhoro', 

5R.  &G.,3i. 


307 


COSTS. 


398 


79.   SiifccssfUI  party  deprived  of— Wiiere  i     83.    Trespass— Where  brought  to  try  right 

the  (.'oiirt  tt'fused  to  disturt)  a  venlict  sought  to  ;  — Tlie  grant iiig  of  ii  curtiticate  tliat  an  action  of 
lie  set  aside  on  tlic  ground  tliat  a  deposition  taken  !  trespass  was  Itrought  to  try  a  right  so  as  to  en- 
ili  linif  f*"''  had  been  removed  from  the  liles  of  I  title  the  plaintitF  to  costs,  is  a  matter  for  the 


discretion  of  tlie  presiding  Judge,  with  which 
the  Court  will  not  interfere. 

McGUlifary  v.  Mcl.ianr,  James,  15Ji. 

84.  Venue  changed,  but  without  costs— 

For.'<yth  v.  For-'i/th,  1  X.  S.  1).,  494. 

See,  a/so,  .tujira,  19. 

85.  Where  verdict  reduced  —  wiicro  a 


tlie  (Vunt  liy  tlie  plaintitt"s  attorney,  the  rule 
nisi  to  set  aside  the  verdict  was  disciiarged,  with- 
(iiit  costs,  a-  the  plaintitl's  attorney  did  wrong 
ill  taking  the  papers  out  of  the  proper  custody. 
Mt-DoiKtld  ft  nl.  V.  Merchants'  Marine  Ills.  Co., 

211.  &C.,  l.S.3. 

80.  SHCcossfiil  party  refused  costs— Where 

pliiiiilitl  iietitioned  for  partition  of  certain  land 

(lesirilKMl  in  deeds  of  adjoining  laud  made  ''y    verdict  is  found  against  the  ciiargc  of  the  Judge, 

liiin    iiiid    another    grantor    to    defendant,    as    _.^,„i   ii,g  uncontradicted   evidence   of   tlie   only 

"  |,iii|M.sed   street,"    claiming    the    land    ahso-    „-it,u,.ss   examined    at    the    trial,    for    a    larger 

liilrly,  .Mid  the  t'ourt  held  that  he  was  estopjied    ainonnt  than  tlie  evidence  warrants,  the  Court 

fn.iiKleiiyiiig  lliat  a  right  of  way  existed  over  ■  ^^-jn  either  order  a  new  trial,  or,  if  the  plaint  ills 

jl,  tlieCcMut  refused  to  allow  him  the  (-""sts  of  i  (.„„j,^,„t_  reduce  the  damages  to  tiie  sum   war- 

Ihe  aiginiient  of  a  rule  nisi  to  set  aside  the  ver-  ;  ranted  hy  the  evidence.     The  Court  have  power 

,liet  f.ir  defendant,  although  the  rule  was  made    g„  ^„   reduce   the  damag.^s  witli  the  consent  of 

absolute.  the  idaintifTs  alone,  and  against  the  will  of  tiie 

r.,hy.r.t,rs,taL,2Ji.&V.,i>.lU.,^^^;^^^^ 

The  (luestion  of  costs  in  such  cases  will  dejieiid 

81.  Suit  in  Equity -ExceptionS-Phuntiflf:^,^  ^,,^  particular  circumstances.  In  this  ca.se 
hioiijrlit  a  suit  to  ohtam  fr.,m  .lefendant  a  re-  j,,,^i„jijj.,  „.^,,^.  ^^^.^^  judgment  for  re.luced 
eoiiveyiuue  on  plaintitl' paying  him  the  amount  ,^„,„„„^^  .^.j^,,  j,,^;,  ^„,ts,  but  the  defendants 
that  slunil.l  be  found  due  upon  an  accounting,  ^.^,^^^  ^^^^^  ^^^  ^,^^  argument,  to  be  deluded 
fur  which   he   prayed.       Defendant    set    up    "■    ti,g,.yfroni 

ikfeiice  uliicii  was  not  sustained,   and   insisted  |  j^.^^^^,  ^^  ^^    ^._  jj^^,^  ^^  ^^, ^  j  y,,,^  -.,-_ 

on   ]iiiyiiieiit    of    S4()0,    of    which   the    master  I 

allimed  .S'.'lt,      Exceptions   were  taken  to   the  !  „      ..  ,         .  ,         .......    .^ 

report,  some  of  which  were  allowed  and  others         8«-      >«"•«««»   ^^t    aside   W  thOUt  -  Point 

,,    „        ,  '  taken  by  Court^\  erdict  for  phiintiti  set  aside 

(lisalldwed.  ■'  .  ,         ,         ,       ,^ 

„,,.,.,,        I  •   .ir  .-.11.     .1       without  costs,  as  the  view  taken  by  the  (.  ourt 

Hilil.  that  the  plaintilT  was  entitled  to  tlie  '  ,   r      i       ■  i 

.      ....         •..    1    ,  »i    .    ^1  i         •  ■  I    was  not  presentecl  by  defendant  s  counsel  at  tlie 

Cdsts  (it  tiie  suit,  l)ut  that   the  costs  arising  out  *  •'  . 

t .,  .         1      1  1      i  1       11         1  i.      -..1         trial,  itiid  no  cases  in  support  of  it  were  cited  at 

(if  tlie  excejitions  should  not  he  allowed  to  either  '  ^  ' 

iiaitv.  *^''°  '^''b'"'"'-'"'-- 

Knoirlan  v.  Diiiin,  R.  E.  D.,  410.  ,  Morrison  v.  nshirirh;  1  R.  &.(i.,  .".0. 


82.  Taxation  -  Reviewing  —  Fresh  affida- 
vits—I'liiiutitrs,  as  executors,  brought  action 
fur  rent,  claiming  .S8S,  there  being  less  than  .SiSO 
line,  even  supposing  tiie  chiim  to  lie  valid. 

Defendant  pleaded,  among  other  jileas,  an 
ei|iiit;iliie  jilea,  setting  out  facts  on  which  judg- 
ment was  afterwards  given  by  the  Eijuity  Court, 
anil  tlie  jiidgmeut  was  then  jileaded  /mis  darrein 
coiiliiniaiifi . 

Plaintirt'  confi.'ssed  the  plea,  and  moved  for 
costs  down  to  the  plea  /mis  darnin,  itc,  to 
wiiili  defendant  a.ssented,  and  declaration  costs 
were  taxed. 

Tlie  Court  allowed  the  taxation  to  be  reviewed, 
iind  (inlei-ed  suininary  costs  to  be  taxed,  although 
tlie  facts  showing  that  less  than  SSO  was  due, 
could  he  gathered  only  from  atHdavits  introduced 
after  the  taxation. 

Marshall  <'t  al  v.  Steele,  1  R.  &  C,  *2S4. 


81.     Verdict  set  aside  — Costs  to  abide 

!  event — Costn  of  argument  of  rule  to  set  aside 
verdict   to  abide  final  event,  owing  to  .si)ecial 
,  circumstances. 

OX'  il  V.   \V,lls,  'J  R.  &  ('.,  210. 

I 

88.  Verdict  set  aside  on  ground  of  rela- 
tionship of  two  jurors — Costs — Where  a  verdict 

j  was  set  aside  on  the  ground  that  two  of  the 
jurors  were  related  to  defendant,  a  fact  which 

,  was  not  discovered  till  after  verdict,  costs  were 

!  made  costs  in  the  cause,  and  to  aliide  the  event. 

i  Li/nds  el  al.  v.  Hour,  1  R.  ."t  C,  ."m. 

I     89.  Verdict  set  aside-rosts  not  mentioned 

in  rule — Plaintift'  then  discontinues— Costs  of 
trial  not  taxable  against  plaintill— Where  a 

verdict  for  jilaintifl'  was  set  aside  and  notiiing 
i  was  said  in  the  rule  respecting  the  costs,  and 


399 


COUNTY  COURT. 


400 


plaintiff  (liseoiitinncil,  the  uosts  of  the  trial  me  I      94.     WltnC8S  FCCS-Whilt  entitles  piirtj  (0 

not    taxiihle  against   plaintiff.      (I'nictice  Act, 
Acts  of  18.M,  sec.  •_'4H.) 

Moody  V.  AJtna  Innuraiice  Com/tctiiy, 

2Tiioni.,  •-':«>. 


suit  to — To  entitle  a  party  in  a  cause  to  liis  tuts 
as  a  witness,  lie  nnist  make  an  atiidavit  tliiit  lie 
came  to  the  Court  expressly  to  uive  eviiluiico  in 
the  cause,  aiul  for  no  other  purpose. 

X<ri//i   V.  (I'ftmti,  '2  'i'Un\n..  i. 


00.    Verdict  set  aside  for  misdirection- 

Costs -If  the  party  in  whose  favor  the  verdict  is 
given  fails  to  sui)|)ort  it,  he  must  pay  the  costs  ; 
anil  there  is  no  distinction  in  eases  where  it  is 
set  iiside  in  conseipience  of  the  misdirection  of 
the  Judge. 

Fnt"!)'  V.  h'irl,;  '_'  Thorn.,  '.MM).  ; 


05.    Witness  fees  -  Ulien  taxabic    w  itutss 

fees  cannot  he  taxed  when  the  witnesses  (Id  not 
reijuire  tlicm  to  he  ])aid. 

/V/(>y  V.  Ji'ussill,  .Janus,  ,")S. 


91.    Will  -  Testing  validity  of     Costs  - 

Where  an  at'tion  is  liniuglit  to  test  the  validity 
of  a  will  in  which  all  the  heiis  of  an  estate  are 
interested,  the  costs  of  such  action  should  not 
he  horne  solely  l»y  the  losing  parly  in  the  suit, 
but  the  costs  of  both  jiarties  should  lie  a  charge 
on  the  estate,  in  analogy  to  the  praiticc  on 
feigned  issues. 

ZiiiL-  it  al.  V.  Zliih;  •!  Ohl.,  17.'). 


9'2.    Will,  proof  in  solemn  form  witliont 

citing  parties  interested— .\  will  having  1  oen 
j)roduced  for  jtrohate  in  common  form,  probate 
was  refused  on  account  of  defects  on  the  face  f)f 
it,  au<l  tliereujion  the  counsel  present  consented 
to  proceed  with  an  investigation,  to  lest  the 
will  in  solemn  form,  without  the  usiud  citations 
and  other  preliminaries,  acconling  to  the  prac- 
tice ot  the  Court. 

The  Jiulge  of  Probate  decreed  the  will  to  1)6 
invalid.  A  pecuniary  legatee,  inider  the  will, 
who  had  not  been  a  party  to  the  consent,  «as 
one  of  the  appellants  frrnn  this  decree. 

//</'/,  that  the  a])peal  nnisl  be  allowed,  but 
without  costs,  as  there  had  been  a  consent  to 
the  proceedings  below  by  all  the  counsel  that 
had  ap])eared  at  the  bar  in  this  Court,  who 
were  the  same  proctors  ami  advocates  tliat  had 
appeared  below. 

//(  /-t  Kstati  of  Connoltij.  '2  R.  A;  C.,  l'.\ ; 

1  c.  L.  r., .-).-).-). 


93.    Witness  fees  — Where  two  suits  are 

brought  for  the  same  cause  of  action  l>y  the 
same  plaintiffs,  against  diffei'ent  defendants,  but 
the  pleas  are  the  same,  and  the  witnesses  the 
same  in  both  suits,  and  notice  of  trial  is  given 
in  both  for  the  same  time,  the  witnesses  are 
entitled  to  fees  only  in  one  of  the  suits, 

Tht  Xova  Scotia  Land  and  Hold  Crnsliini/Co, 
( Limitid)  v.  Archihald  HdIIowi  ; 

Idiin  V.  Xeai  liulkiiiij,  1  Old.,  723. 


COIMIKS,  AMEIHEMEXT  OF 

.V'<  .IMERl'EMEXT  OF  (OINTIFS. 


tOlXTY  tOlKT. 

1.  Clerii  of  County  Court    Writ  sljjned  bj 

deputy  Burden  of  proof  A  writ  ot  >iuiiiii"ii~ 
was  signed  in  the  n:ime  of  the  Clei  k  nl  the 
County  Court  by  a  ileputy  appointeil  liy  the 
clcik,  who,  it  was  contended,  could  mily  >ip- 
point  a  deputy  to  act  fur  him  when  he  hms 
"absent  from  home,  siik,  oi'  other\vi>c  uiuiMf 
to  attend  to  his  duties."' 

Ill  Id,  tliiit  the  onus  was  on  the  ])arty  seeking.' 
to  avoid  the  writ  to  show  that  when  it  Wiis 
signed  by  the  de|)Utv  the  clerk  w:is  noilhcr 
"  sick,  absent  from  home,  nor  otherwise  uiiiiliie 
to  attend  to  his  duties." 

Kawf-h  V.  A, ■'Inn;  .")  II.  >V  (;.,  iMI. 

2.  Constitution   of   Courts  -  Contested 

Municipal  elections  --  County  Court  Judge 
authorized  to  hear  ]ictition  -  One  Judge,  if 
disqualified,  may  call  in  another  -  Power  of 
Local  Legislature  to  define  jurisdiction  of 
County  Court  Judges  — Under  t!ie  Coiuity  hi- 
corpoi'ation  Act  of  ISSI,  c.  I,  s.  18,  a  County 
Court  .Judge  who  is  dis(|ualitied  from  tryinga 
j)etition  in  a  contested  municipal  electiuii.  niiy 
call  in  another  County  Court  Judge  to  do  so. 

The  jurisdiction  ot  County  Court  Judges  ilofs 
not  depend  upon  their  connnissions,  which  au' 
only  descriptive  of  the  tribunal  over  which  smli 
Judges  are  apj)ointed  to  jireside,  but  ujion  eiKUt- 
nients  of  the  Provincial  Legislature,  which  uwv 
define,  enlaige  and  extend  the  districts  witliiu 
which  the  .Judges  sit,  as  it  sees  fit. 

Cron-c  V.  McCurdy,  «  R.  &  (i.,  'M: 
GC.  L.  T.,4:.:i. 

3.  County  Courts-Irregularity  in  writ- 
Want  of  signature  of  proper  officer— Want  of 


401                                       COUNTY  COURT.                                           402 

seal— Nullity— Waiver— Deputy  Clerk— Tlio  l\v  Rituhie  iiml  MeOonald,  .1.1.— Tluvt  after 

uiit  iif  siiiiiiiKiiiM  will  iii>t  lie  Mt't  iisiile  for  iiiiy  tlio    tiling   of  ii  plea  olijectiiig   to   the  couiiter- 

,|iUrt    thfii'iii,    afti-T    appi'iiraiuc     and     plea,  flaiiii  as   l)eyoii(l  the   jiuisdiction  of  the  Coiiit, 

wiictiicr  the  defect  makes  the  writ  a  nullity,  t lie  County  Court  .Judge  liad   no  jurisdiction  to 

111-  finly   iricgidar.  amend  it  hy   reducing   it   to  an  amount   within 

A  di'fict  which  makes  a  proceeding  a  nullity  the  jurisdiction  of  the  Court,  tlie  County  Court 

will  lie  coMsidcrcil  as  waived   wiicn   the   cause  Act,  .")th  1',.  S.,  c.  1(1."),  s.  "J."),  oidy  permitting  such 

lias  j.'onc  III  iinotiicr  stage,  in  w  iiich  the  validity  amendment  to  he  maile  m  tiie  al>sence  of  a  plea 

dl  till'  |iriMi'eiling  has  ceased  to  lie  important.  to  the  jurisdiction. 

The  hcinity  of  the  Clerk  of  the  County  Couit  Hafix  v.  Cnti/thoriK  ,  7  H.  &  '•.,  'J.'iO  ; 

liilil  aiithori/cci  to  sign  writs,  atthougii  tiie  7  C.  L.  T.,  :U~. 
Clerk  lie  not    ill,  alisent    fr'oni   home,  or  otlicr- 

u  !>,■  uiiai.le  to  attend  to  his  duties.  «.    Jurisdiction   of  -  Debt   indivisible   - 

liniik  of  Xom  Scotia  v.  Mrh',  rrcn-,  Ueti'udants  entered  into  a  liond   to  the  plaintitf 

.')  it.  i\;  ('•.,  ■J7.">.  and  his  co-executor,  to  secure   a  delit  of  8'Sl'*, 

payalile    hy    instalments,    the    lii'st    of    which, 

4.    .FlirisdicJion     I'laintilf  Joined  a   elaim  amounting   to  .sl<;i.4(»,   was  overdue;    l.ut    the 

furS-J(i,  fiiruurk,  with  a  claim  for  ilamages  for  condition   of  tlie  bond   referred   to  a   mortgage 

tic>pa>s      DcfeiidaMt   i)lcaded   a   contract  as  to  given    contemporaneously    with  it,    which    ron- 

thf  Wdik.  hy  wliich  SU)  wiis  agreed  U|)on  as  tlie  taiiied  a  covenant  that  on  default   made  in   the 

in ic.  anil  that  this  was  helow    the  jurisdiction.  I)ayment   of    any    instalment,    the    whole    sum 

The  .liidge   found   for   the    dcfeii<hint   on   these  unjiai.l     should    imiiie<liately    heconie    due    and 

i>siR's  and  for  plaiiititl' on  the  trespass.  [layaMe.     Action    was    iirought    in   tlie  County 

//./»/.  sustaining  the   judgment    lielow,    that  Court  for  the  amount  of  the  instalment. 

the  plaiiitiil's  contention  that  tlie  whole  state-  //''''.  tliiit  the  judgment  of  that  C<.urt,  which 

I, iciit  of  claim  was  the  cause  of  action,  and  that,  "as    for   iilaiiitill',   couhl    not    he   sustained   for 

tic  itiiiu  it  as  a   whole,    jialgment  should  have  want  of  jurisdiction,  the  del.t  l.eing  iiidivislMe 

hirii  in  favor  of  iihiintill'.  for  .*ilO  for  the  work  for.'^fsK),  and   recoveralde  only  in  the  .Sujneme 

and  tor  diiniages,  was  ahsurd.  Court. 

/r,7/M  V.  S,r,,t,  •_'(»  N.  ,S.  R.,  (S  R.  &  (;.),  44!) :  """'^  E.onilor,  v.  Dn.nis,,,,  ,1  nl., 

!»C.  L  T.,-2:W.  •*'^'  't<^'-.303. 

4.    Minutes  of  evidence   -  .i  motion  was 

.1.    Counter-claim    for    amount   over    tlie  ,„ade  t..   set  aside   a  oniomri  taken   out  in  a 

juri.sdietion  of  the  County  Court  cannot   be  summary  cause  trie.l  in  the  County  Court,  the 

amended  after  plea  objecting  to  it   on  that  jr,.„„ml  for  the  a  rtioriirl  lieiiig  that  the  .ludge 

ground     Sr,cli  -oiinter-claim  can  only  be  used  i„i,i  lefused  to  take  down  certain  evidence.    'Ihe 

a.s  defence     In  an  action  brought  hy  plaintilf  in  C,,„rt  refused  to  amend  the  minutes  of  the  County 

the  County  Court  on  an  arbitrator's  award  to  Cmrt  .Judge,  but  as  to  the  orllonrri,  luld.  that 

ivcdver  the  amount  of  the  award  the  detmuhmt  jt   „as  safer  and  better  that  the  rule  to  set   it 

cuiiiiter-clainied,  besides  other  items,  for  the  sum  ,^^^^\^,  si,„iild  include  a  motion  to  set  aside  the 

"f  84(KI.  being  the  value  of  a  machine  which  he  (,r<ler  for  the  nr/wmri  as  Well  as  the  a  rfiorat-i 

nlleged  to  have  been  wrongfully  converted  by  the  itself.     \\  ith  the  consent  of  the  parties  the  rule 

plaiiititf.     I'laiiititr  replied  to  the  counter-claim,  t„  g^t  ^side  the  ctrtiomri  was  discharged  witli- 

iiiiinng  other   things,   that    it   wa.s   beyond   the  f^^^^  (.Qsts. 

jurisdiction   of    the  Court,  which   in   eases   of  l)oi/ti   v.  (/((//««/,  2  R.  &  (i.,  8fi  ; 

t"it.  was  limited  to  S'ltiO.  The  learned  .Judge  1  C.  L.  T.,  5(17. 
liiriiiittcd  the  ilefeiidant   to  amend  his  counter- 

diiim  .so  as  to  bring  it  within  the  jurisdiction  of  8.    Plea  to  thc  Jurisdiction— Where  plaln- 

tlie  Court,   and   gave   judgment    in    lii-s    favor,  ;  titf   was   originally    indebted    to    defendant    in 

inchidiiig  the  above  items,  for  .t-A'. '-'.'< ,  less  the  .<:W.").!)0,  and  defendant  sidd  plaintitf  a  vessel  for 

aniDinit  found  to  be  due  the  plaintiff.     Plaintitf  8<iOO,  thus  making  the  balance  in  plaiiitifl''8  favor 

iippealed.  S224. 10,    which    was    afterwards    increased    to 

//'/'/,  per  James,  J.,  that  the  County  Court  g!"2fl0.78,  and  then  reduced  by  set-otf  of  casli  and 

•bulge  was  authorized  to  give  the  defendant  the  goods,    amounting   to   .'?17y.<t.'>,  to   SI  11.73,  for 

hi'iietit  of  ills  counter-claim  to  the  extent  of  the  which   amount   plaintiff   sued,   and    defendant 

plaiiititf's  claim,  but  that  having  given  relief  to  pleaded  to  the  jurisdiction. 

ilefeiidaut  beyond  the  amount  of  his  jurisdiction  fft/il,  that  there  was  no  evidence  to  support 

tae  appeal  must  be  allowed  ,  the  plea,  the  burden  of  which  was  on  the  defen- 


403  COURT.  404 

tlant,  that  plaintiff's  claim  was  in  excess  of  tliu    amount  claimed  by   the  plaintiff's   declaration 
jurisdiction  of  the  Cminty  Court.  being  over  $'Mi,  tiie  Court  iiad  jurisdiction. 

McKay  v.  Allan,  (5  R.  &  (i.,  476;        Wallace,  v.  O'Toole,  lOth  Fihrunry,  JSSo, 

6  C.  L.  T.,  538.  I  Cas.  Digest,  4l>.'. 

9.     Prohibited  from  proceeding   with         *"''  "' "  APP^^^^S,  V. 

rirtiomri  to  remove   conviction  under  Canada  ! 
Temperance  Act.  | 

(Jiiern  v.  O'XeiU,  20  X.  S.  R., 

(8  R.  &("!.),  r)30. 


I 


COUNCIL,  TOWX- 
See  CONTR.iCT,  66. -CORPORATION. 


SVe  CANADA  TEMPERANCE  ACT,  10. 


10.  Prohibition,  writ  of,  to  County  Court— ;  COIRT. 

Jurisdiction  of  Court-  An  action  of  iiovcr  was 

broujiht  ii^Minst  defendants  in  the  County  Court,      1.    Attendance  at  -  Aftcr  thc  llrst  diiy  of 

at  Halifax,  X.  .S.,  u>  wliich  tiiey  ]>leadcd  a  term  gentlemen  of  tiie  bar  arc  not  eNi)ciU(l  lo 
numlier  of  picas,  including  one  to  tiie  jurisilic-  l,c  in  attendance  in  Court  unless  they  iiavc  \>m- 
tion  of  the  Court.     Tiiis  j)lea  was  liased  on  the    ticular  business. 

allegation  that  the  goods  for  which  the  action  Sl.-iiniir  v.  /,a)/e,  James, '.MT. 

was   lirought    were  of   tlie  value   of   .*(i(HI.    tiie 

jurisdiction  of  the  Court  in  actions  of  tort  being  2.  DIsqualifled  through  interest— PlailUUT, 
limited  to  .S'iftO.  '{'lie  plaintiff  demurred  to  the  iv  barrister  of  the  Supreme  Court,  having  coin- 
plea  of  want  of  jurisdiction,  an<l,  after  argu-  niittcd  a  contenipl  of  Court,  was,  by  the  lut 
ment,  the  dcniiiricr  was  overruled.  Xo  ap])tal  of  tlie  whole  Court,  suspended  from  practia'. 
was  taken  from  tlie  judgment  overruling  the  Plaintiff  thereupon  brought  an  action  ag;iin>t 
demurrer,  but  the  plaintiff  gave  nf)tice  of  trial,  |  the  Chief  Justice,  alleging  in  his  declariition 
and  entered  the  cause  for  trial  at  Chambers  that  the  acts  therein  complained  of  were  act.< 
before  the  County  Court  .Judge,  who  announced  alone  of  the  defemlant,  in  which  the  rest  of  the 
his  intention  of  trying  the  same  on  the  renuiin-  Court  were  not  implicated, 
ing  ideas.  The  defendants  obtained  a  rule  «/.v('  Defentlant  pleaded  that  plaintiff's  susiiension 
for  a  writ  of  prohibition  to  restrain  the  Judge  "'-'is  the  act  of  the  whole  Court,  but  ])l:iiiititf 
from  Lying  the  cause,  on  the  ground  that  the  contended  at  the  argument  on  the  rule  to  slum 
judgment  on  tiie  demurrer  dispo.sed  of  the  whole  I  cause  why  certain  of  defendant's  pleas  sliouM 
case.  I  not  be  amendeil,  that  his  complaint  was  limitt'il 

H<  /il,  that  the  pica  was  not  a  good  plea,  as  to  a  charge  against  the  defendant  for  hiiving 
the  damages  claimed  were  oiilj'  $'2()(),  and  the  maliciously,  and  without  probable  cau.«c,  iii4i- 
ineasure  of  damages  in  trover  was  not  necessa-  tuted  the  proceedings  whicli  led  to  his  suspeu- 
rily  tlie  value  of  the  goods,  and  that,  the  Court  s'on.  Defendant  having  denied  that  he  inili- 
liaving  jurisdiction,  the  writ  of  prohibition  could  i  vidually  originated  the  jjroceedings, 
not  )>e  granted.  j      IIclil,  tiiat  as  this  denial  brought  the  rest  nf 

O'Too/i  ef  al.  V.  Ila/Zacp  c<  ra/.,  4  R.  &  G.,  357.  i  the   Court   directly  into  the   contention,  lume 

of  the  Judges  then  sitting  on  the  Bench  coul'l 

On  appea/  to  the  Supreme  Court  of  Canada,        judicially  act  in  or  take  cognizance  of  thc  cause. 

Hi  III,  .Strong,  J.,  fli-oiintinii,  that  the  effect  of    even  with  the  consent  of  tlie  parties  tliercto. 
the  judgment  on  the  demurrer  was  to  (plash  the  '■  Wallace  v.  Younij,  1  N.  S.  D.,  173. 

writ,  and  the  rule  nm  for  a  writ  of  prohibition  i 

should  be  made  ab.soiute.  ;    3.    Equally  dlvldcd- 

Pir  Strong,  J.,  dUtintlu'i,  that  the  judg- '  I'rr  Jolmstone,  E.  J.  —  The  Court  bciiit; 
ment  of  the  County  Court  Judge  on  the  demur-  equally  divide<l.  the  judgment  appealed  against 
rer  did  not  dispose  of  the  case  ;  but  he  had  a    must  stand. 

riglit  to  reconsider  the  same  on  the  trial  of  the  /«  re  Estate  0/ Sophia  liralne,  1  X.  S.  D.,  'Ml 
issues  raised  by  the  other  pleas  ;  that  the  plea  j  Embree  v.  Xoilex,  3  11.  k  (J.,  Si. 

to  tlie  jurisdiction,  by  attorney,  was  null  and  ! 

void,  and  if  judgment  had  been  entered  of  4.  Equal  division  Of-On  an  equal  division 
record  on  the  demurrer,  such  judgment  would  of  the  Court,  the  modern  practice  seems  to  l)e, 
have  been  likewise  null  and  void,  and  that  the  |  that  the  party  who  has  obtained  a  verd;  ;t,  as  a 


405  CRIMINAL  LAW.  406 

general  rule,  retiiins  it  ;  that  the  Court  Ims  a  tlie  mine  for  a  share  of  the  profits  no  interest  in 

iliscrcli'iiiiu y   pnwer   to  onlor   a   new   trial  or  the  mine  was  transferred  to  plaintiff  within  the 

re  aife'iinieiit  ;  that   the   Court   may    refuse    the  i  meaning  of  section  4  of  the  Statute  of  Fraud, 

costs  of  argument  where  neither  party  prevails,  :      (i.)     That  the  Sheriff  should  have  sold  only 

iiml  tiiiit  (in  a])iM'ul  from  inferior  trihunals,  the  the   execution  del)toi''s  share,  leaving  the    pur- 

(Itcisidii  hclow  is  atiirmed.  chaser  to  settle  with  the  plaintiff. 

(,Vf(//  V.  .s'A./ Co.  q/'CViHw/re,  .3  R.  &  C,  5(J0.  (.S.)     That   though   the   verdict    for   plaintiff 

:  might  he  set  aside  and  a  new  trial  oi'dered,  it  not 

5.    Eqillfable  JurlsdICllon   of  -Joint   and  ai)pcaring  that  the  <lcfendant  hy  the  sale  put  it 

several  bond   -I'laintiil's'  cashier  gave  a  lioiid,  out  of  the  plaintiff's  power  to  tiike  the  property 

whcniii  he  was  joined  hy  five  sureties,  for  his  or  j)ursue  his  reineily  against  the  purchaser,  yet 

li.jility  a:id  good   condiut,  the  penalty  of  the  the  plaintiff  having  an  undoid)ted  right  to  a  share 

lidiiil  liciiig  S4(I,(MH),  and  the  conditioh  reciting  of,if  not  the  wholcof  thegold,  underthee(|uitalile 

llial  f.ii  li  siiicty  was  lionml  in  the  sum  of  !*S,<K)(».  powers  of  the  Court  it  ought  to  lie  referred  to  a 

The  lashicr  liecanie  a  defaidtei' in  a  very  large  Master  to  ascertain  the  agreement  between  plain- 

aiMMUiil,  ami  the  plaintiffs  entered  into  negotia-  tilf  and  (!.,  take  an  accoinit  of  the  expenses  of 

Hulls  witli  K.,  one  of  the  sureties,  which  resulted  working  the  mine,  etc.,  and  report  the  balance, 

ill  an  agreement   between    them    whereby    K.  if  any,  which  was  due  by  the  iilaiutiti' to  (i.  at 

uiiiUrtiiiik   to  pay  one-fifth  of  the  balance  due  the  time  of  the  levy.     The  (jucstion  of  costs  to 

ii|ioii  tiic  liond  after  the  deduction  of  certain  be  dt'cideil   after   the   making  of  the   Master's 

eieilits,   and    gave   his    note   for    the    amount.  re])ort. 

.Siilis.i|iieiitly  l)laintifl's  sued  upon  the  bond,  MrJk„ia/d  \.  (.'(/i/,  li,  Hy.  f^.  I).,  r,o\. 
eieditiiig  in  their  particulars   tiie  sum   K.    had 

]iiiiniise(l  to  pay   but  had   not   jjaid   up  to  the  

(l.ile  of  the   irial.     K.    ])lcaded   to    the  writ   a 

nuiiilier  of  pleas,  one  being  that  the  bond  was  C0VEN.4NT. 

a  several  and  not  a  joint  ami  several  boml,  ami 

seven  pleas  (ui  ecpiitabie  grounds.  Covcnant  fof  qiilet  cnJoymcnt  of  Water 

Tlie  jin y  found  fur  plaintitl's  in  a  less  amount,  privilege-  ]>efcndant  denii.-ed  to  the  j)laintill's, 
linwever,  than  they  claimed,  liut  they  aciiuiesceil  for  a  certain  period,  a  mill  and  mill  machinery, 
ill  the  Verdict  and  made  no  attempt  to  disturb  ^vitii  a  water  privilege,  flic  imiiv  /mircr  to  he  of 
it.  K.  alone  of  the  defendants  resisted  the  ver-  '/"'  •>"/"'  irtiiit  n-<  that  iiiJdi/uI  hi/  lln:  thm  h-isie 
<liit,  eiiiitending  that  the  bond  was  a  several  of  thi'  «(///,  the  lease  containing  a  covenant  for 
(ililigatjoii,  :uid  that  the  receipt  given  by  plain-  ipiict  enjoyment.  The  evidence  showed  that  a 
litis  to  liini  at  the  time  of  the  settlement  between  water  privilege  to  the  exttuit  ])rovided  forbad 
tliem  lieiiig  in  proof,  should  be  considered  as  "ot  been  actually  enjoyed  by  the  jilaintitfs,  and 
liayineiit  to  that  extent  on  his  own  account.  that    injury   and    loss    had    resulted    from    the 

//'/'/,  that  K.,  having  invoked  its  eijuitable  deficiency,  which  was  due  to  acts  either  of  the 
jiirisilietinn,  the  Court  had  fidl  power  to  deal  |  defendant  himself  or  of  the  S.  M.  Co.,  his 
with  the  ease:  that  the  boml  was  a   joint  and  '  tenants. 

several  (ihljguUon  ;  that  if  K.  had  actually  paid  Hchl,  to  be  the  legal  cliect  of  the  covenant 
the  aiiKiunt  mentioned  in  the  receijjt  he  might  '  f"i'  qniet  enjoyment  in  relation  to  the  facts 
liave  gioiind  for  com])laint,  but  that  not  having  l"'oved,  that  the  jilaintiffs  were  entitled  to  re- 
(liiiie  so  the  verdict  foi'  plaintiff  must  stand.  cover,  the  defendant  having  failed  to  show  that 

TIf  liniik  of  Xnra  Scotin  v.  FiiriiKdi  it  al.,        the  <lcliciency  of  water  jjower  was  occasioned 

3  X.  S.  1).,  141.    ''y  causes  that  lendered  it  inii)ossi))le  for  him  to 
i  perform  the  covenant  in  (|iiestion. 

6.   Equitable  Jurisdiction  of  -  Statute  of         ^'"'•^"' "  "''  ^ "  ''"'''"'"'''  '  ^'-  ^  ^''  -''• 

'"t^wil:!':;;'!':';  1  t- "'t "''T"" :'"■  ^  ^-> "'--  deed-mortgage. 

"•,  uie  owner  ot  a  gold  claim,  to  work  a  portnm  - 

"f  the  elaini,  plaiiititf  receiving  two-thirds  of  the  ,  

piiilits  after  paying  all  exi)enses.      Defendant, 

ii^'ting  as  Sheriff  of  the  County  of  Hants,  levied  CRIMIX.tL  L.IW. 

upon  and  sold  certain  gold  taken  out  of  the  mine 

j>.v  plaintiff  on  an  execution  against  (i.    Plaintiff      1.    Authority  Of  CouH  in  bauco  to  enquire 

"iiviiighrougiit  trover  for  thegold  so  taken,  and    into  validity  of  objections  taken  atj  trial  on 

•1  renhet  having  passed  in  his  favor,  behalf  of  prisoner  and  over-ruled  -Prisoners 

''W,  (1.)    That  under  the  agreement  to  work    jointly  indicted  —  Ordering  acquittal  of  one 


407                                          CRIMINAL  LAW.  408 

—  Separation   of  Jury  —  AVIicn    in   a  ciisiu  of  did  luit  knou-  of  his  icsiik-iu'c,  and  wiictlier  lie 

felony  olijections  were   taiiiii   l>y   tiie   prisoner's  was  alive  or  dead. 

eonnsel,  in  arrest   of  jtid^'uifiit,  Imt  over-ruled  IlvId,  an  abseneo  f)f  tiiis  kind  was  slKiwn  in 

liy  tlie   Jndj,'e  tryinj,'    the  ciuise,  tiie    Conrt    in  this    ease.       At     any    rati^    sueh   evi(h'inu  wm 

//««<■()  have  autlioiity  to  iii(|uire  into  the  validity  adduced  as  should  have   heen   left  to  the  jinv, 

of  those  oltjeetions.  and  from  which  they  certaiidy  iniglit  have  fouii.l 

The  j)resencc  of  the  jiiisoner  at  the  ar^'uniciit  siich  an  alisencc. 

is   not   necessiry.     The  diid^re   is   not   hound  to  /A///,  that    Imrden  of    proving  thiil   |irisciinr 

order   accpiittMl  of  one    of  the  jirisoners  joined  knew  of  Peliav's  lieing  alive  during  the  sivtn 

in  an  indictment  at  the  close  of  the  case  for  the  years  was  on  the  j)roseeution. 

(Vown,   where    evidence    is   to   he   adduced    on  //(7(/,  hy  all  the  Judges,  that  convictini]  iinist 

hehalf  of  the  other  ]irisonei's.  lie  niiashed. 

The  seiiaration   of  tin;   jurors,  ami  e\en  their  V"""  v.  Aiiiiii   Dilxiy,  ,S  X,  S.  1),,  ,•,411. 
conversation  M'itli  strangers  relative  to  tlie  trial 
during  its  (lendcncy,  are  not  in  themselves  sulli- 

eient  to  destioy  the  verdict.  4.    Rigiiniy    Foreign  Marriage    Proof  of 

iJiiKii  V.  A'' ///("///, 'J  Thorn.,  illt.S.  Adinisijion    of   Defendant  —  Corrohoratiii<; 

circumstances    -Proof  of  License      Presump- 
tion—  In  a  idoscriition  for  liigauiy,  u  hcic  tiniv 

2.  Ball,  admitting  to    Prisoners  ohargeil  i-*  ■'  f"i'',i-'"  marriage,  the  foreign  law  nmst  !.,• 

with  murder  cannot  lie  admitted  to  hail,  exci'pt  .-tii<tly  proved.      This,  howevei,  is  not  neiussirv 

mider   extreme  circumstances;  otherwise,   with  wlicre   ihc  m.irriagc  has   lieen  admitted  l.y  the 

accessories  aitei'  the  fact.  defendant   and   there  are  corroliorating  ciiciini- 

Vh((«  v.  Miiri'lii/  il  "/.,  James,  LIS.  stances  stri'ngilicning  the  admi.ssion. 

The  testimony  of   the  minister  who  iiiiiiiieil 
parties,  *hat    he   h.'ol   a  mariiage  liciise,  wiiicli 

3.  Bljjamj- ~  Absence  of  first  husband  -  „as  l,rought  to  him  hy  one  of  ii;c  pimics:  tliat 

Knowledge     of    prisoner    of    first     hu.^band  he  didy  returned  th.>  same :  that  all  the  Inrins 

being   alive  ^Burden   of  proof  of  knowledge  ,,,■  1;,^^  w.re  observed  as  rc(]uired  by  tiie  license, 

on  prosecution  -(,)uestion  subu.itted  foroiiinion  and  that  the  mairiage  was  performed  aeconliii- 

of    the   Court;     Whether   the   presiding  .ludge  to  the    rites   and    ceremonies   of   his  cluurli  is 

rightly  instruc    'il    the   jury   that    the  evidence  sullicient    i)roof    of     the    license   having    U™ 

a.ldn.'ed  on  the   trial  of  tiie   i.risoner,  who  was  issued  and  returned,  and  of  the  marriageliaving 

indicted    for    bigamy   in   marrying    one   (ieorge  i.^on  duly  solenmize.l. 

I'ar.    in   the   lifetime  of  her  husiiand,  William!  Wilkins,  .1.,  iloiililimi. 

J)eliiiy,   did    not   raise  any   jiresuniption  of  the  j„    ,i,js   ,.,,se    the  first  alleged  murriage  was 

death   of  Debay,  and  that  the  prisoner  was  not  contracted  in  lioston.  Mass.,  and  no  ppinf  wiwt- 

aware  wiieii  she  niarricd   farr   tiiat    Dcbay  was  ^ver   was  given  of  the  marriage  hiw  of  .\lii.<s,v 

'■^''■'y-  thiisetts.     There  was  evi<lence.  however,  liy  :v 

On    the    part   of   the   pro.secutiou    Debay  was  witness  present  thereat,  of  a  marriage  cciviiioiiy 

proved  to  have  been  seen  in   the    United  States  and  of  .subsefpient  eoliabitati<m  as  man  and  wife, 

after  the    second    marriage,  alioiit    three  weeks  Another  witness  test  ilied  as  follows:  "I  spoke 

before  the  trial  ;  and  on  the  part  of  the  defence  to    the    defendant    at   Parrsboro'.      A    wdiiiaii 

that  eight  yeais   before  trial   the   prisoner  and  fhijniing  to  ho  his  wife  was  looking  after  iiini. 

other  husband  .separate.l,  he  having  turned  her  she  is   now  present.     I  asked  him  what  iiuide 

out  of  doors,  and  never  lived  with  her  since.  him    leave    his    wife    in    the   States  and  marry 

The  Dominion  statute,  under   which   jn'i.soner  another  woman  at  I'arrsboro'.     He  said  lie  iliil 

was    indicted,   provides    that    nothing   therein  ,„)t  think  his  wife  would  foll,>w  him  from  the 

contained  shall  extend  to  any  person  marrying  States.     He  thought  she  never  would   trouble 

a  second  time,  whose  husband  or  wife   has  been  liim  ;  hut  as  long  as  she  had  followed  hini,  he 

continually   absent    from    such    person    for    the  would  take  her  and  support  her  as  long  as  they 

space   of  seven   years,  then   last  past,  and  was  lived.     We  were  old  aequaintanees,  ami  I  asked 

not  knowr.  by  such   person   to  lie   living   within  him  about  liis  wife  who  was  claiming  him." 

that  time.  JIM,  that  there  was  no  necessity  for  proof 

//(-/(/,  that  the  absence  contemplated  liy  the  of  the  marriage  law  of  Massachusetts,  us  the 

statute  is  not  necessarily  an  absence  from  the  marriage  was  sufficiently  proved  by  the  ailmis- 

country.     It   is   sufficient   for   the   prisoner    to  sion   of  the  defendant  and   the  corroborating 

prove  the  absence  of  Debay  from  her,  such  an  circumstances. 

absence  as  would  lead  to  the  inference  that  she  }  Queen  v.  Heury  P.  Allan,  2  Old.,  373. 


41)9 


CRIMINAL  LAW. 


410 


,(,   Case  reserved  -  Indictment  for  lar- 

lenv  tonviction  for  misdemeanor— Tliu  piis- 
iiiir  liiiviiiji  pickuil  up  certain  goods  that  iiud 
i|„;iti'il  a«ay  from  the  wreck  of  a  steamer, 
,i|i]irii]ii'iatcil  tiielii  to  ills  own  use.  He  was  in- 
lined  fill'  larceny,  tin;  proi)erty  in  tlie  j,'oo(ls 
Idiiglaiil  in  tlie  captain  of  the  steamer,  Imt  at 


l)roof  of  forgery  of  tlie  indorsement,  and  that 
the  conviction  on  this  count  must  )>e  set  aside, 
A  cjuestion  having  lieen  raised  at  the  trial,  liy 
demuirer,  as  to  the  jiower  of  the  t'ourt  to  try 
or  convict  the  defendant  for  another  offence 
than  tiiat  for  which  he  was  extraditiMl,  and 
having   !)ecn    deciileil    l)y    tiie    presiding  .ludge 


ibc  trial  the  . I  udge  instructed  the  jury  that  they    against  the  defendant, 

tfii:lil  nut  convict  liim  of  larceny.     The  proseiMi-         Id  hi,   that  it  was  too  late  to  raise  tlic  (|ues- 

lidiitlicn  claimed  a  conviction  fi>ra  niisdeineanor,    tion,  hy  case  reserved,  foi-  tiie  full  Court. 

aii.ltlii;  jury  found  accoidingly.     Ona  case  heiiig  (^hmii  v.  Ciiiuiiii'jhnin,  0  K.  &  *!.,  31  ; 

„.,md  for  the  fullCourt,  '  (>  C.   L  T.,  139. 

/A/'/,  Wilkins,  .).,  (/iW;;///;!/,  that,  under  sec-  ,         ,      ,  ^,  •  ^,         i 

lliii)ftlu-   Liirniii/  .1(V,  .'{•_>  and  .{,{   \  ic,  chaji.  "  ' 

■Jl,  sec.  :<,  the  conviction  must  he  sustaine<l,  -''"'"'•  /" ''  '•'•"imii^r,  Heury,  and  Ta.schereau, 
aii.l  that  although  the  offence  was  prohahly  J.J. ,  (Ritchie,  C:.  . I. ,  ind  Strong,  J.,  r/iVs. »//«;/,) 
,«iiimittcdat  sea  the  Court  hail  full  jurisdiction    that  evidence  of  the  uttering  of  a  forged  inilor.se- 

i)f  a  negotialile  chcijue  or  older  is  iusuHi- 


inlhi'  iH'ciiiiscs, 

(JiKdi  v.  Mar/ill,  '.i  X.  S.  ]).,  124. 

tl.  lonipoiiiid  felony    Trial  iiad  in  otiier 

County  than  one  in  which  offence  committed— 
Prisoner  was  tried  at  Amherst  iij)oii  an  indict- 
ment eoiitniniiig  two  counts,  one  for  roliliery 
ami  the  other  for  receiving  stolen  goods.     Hoth 


inent  of 

dent  to  sustain  a  conviction  on  a  count  of  an 
indictment  charging  the  uttering  of  a  forged 
cliei|iie  or  order. 

On  llic  second  (|Uestioii  reserved,  which  wa.s 
"  wlietiicr  the  evidence  on  the  part  of  tiie  Crown 
is  sullicieiit  to  sustain  a  conviction  on  the  first 
and  third  counts  of  the  indictment,  or  on  eithei 
of  those  counts,"  the  judgment  of  the  Court  helow 


f'tfenues  were  iiroved  to  have  lieeii  committed  at      ,       ,  ,  ,  ,  ,     ,  ,        , 

,    ,      .  e        ■,  ,         1.  .     r    slioulil  he  reversed,  ami  the  prisoner  orilereil  to 

Truro,  and  the  jury  found  a  general  verdict  of    ,      ,.    .  ,  ' 


lie  discharged. 

Pir  Hitchie,  C   J. — The  question  raised  liy 
tlie  demurrer  was  not  jirojierly  hefore  the  Court 
iiig,iiii(l  that,  altiiough  he  might  he  guilty  of    "»  "Ppeal,  the  Court  helow  liavii  g  lieeii  uiiani- 
Kitli  offences,  as  the  rohhery  was  committed  in    '""'*'«  "^^it'"  respect  to  it. 

Pi  r   .Strong,    .1. — The    Court    below   rightly 

held,  on  the  authority  of  li.  v.  Failcrman.  Uen. 

V/R'ftM  V.  Jiiix-icfi,  3  H.  &  C,  •254,    <'•    ^-    572,    that   the  (juestion   raised    hy    tlie 

demurrer  was  not  properly  liefore  the  Court, 
the  C.  •)  having  given  judgment  on  the  demur- 
rer, overruling  it  at  the  trial,     ^loreover,  there 


guilty  on  liotli  counts. 
//(/(/,   that   the   j)ris(...er   should   have    been 
ceeded  against  only  on  the  count  for  reeeiv- 


aniithcr  county  than  the  one  in  which  the  pris- 
oiiM  was  tried,  he  must  he  discharged. 


I.  Conviction  for  uttering  a  forged  order 

for  payment  of  money — Evidence  in  support 
of  conviction  for  uttering  a  forged  cheque 


was  nothing  in  the  law  under  which  the  prisoner 
was  extradited  to  prevent  theC<mrt  from  trying 


Extradition-Trial  for  other  offences  -  Defen-  '  ,,;,„  {,„.  „„y  „ff^.„,„  f,„,  ,,,,i^,,,  ,,,  „.,,,^  accor.ling 


liiiit  was  found  gnilty  on  the  lirst  and  tliird 
ciiunts  of  an  indictment,  the  hist  count  of  wliicli 
charged  him  with  uttering  a  forged  "order  for 
tlic  payment  of  money,"  The  evidence  was, 
that  the  defendant  forged  the  name  of  \V.  McF. 
I'M  the  hack  of  a  cheiiue  drawn  payable  to  W 


to  the  law  of  the  Dominion,  justiciable  before  it. 
Appeal  allowed. 

(Jueisn  V.  Cuiminiiham,  lOlh  March,  1SS5, 
Cas.  Digest,  107. 

8.    Criminal  Information  against  Magls- 


MuF,  or  order,  and  <d)tained  the  proceeds,  which  I  trate  for  violation  of  duty— A  Magistrate  is 
lie  appropriated  to  his  own  use. 
Ihlil,   that  the  cheque,  when   indorsed,   be- 


entitled  to  six  days'  notice  of  a  motion  for  a 
criminal  information  against  him  for  a  violation 
came  an  "order  for  the  payment  of  money  "  to  '  of  his  duty.  The  motion  must  be  made  in  suf- 
any  one  who  should  present  it,  and  that  the  |  ficient  time  to  enable  him  to  answer  the  same 

term. 

Queen  v.  fleuxtin,  James,  101. 

9.  Crown  case  reserved— A  question  having 

been  raised  at  the  trial  by  demurrer  as  to  tl'e 
power  of  the  Court  to  try  or  convict  the  defen- 
dant for  another  offence  than  that  for  which  he 


conviction  on  the  last  count  was  sustained  by 
the  evidence. 

McDonald,  C.  J.,  and  Weatherbe,  J.,  dissetit- 

ing. 

The  first  count  of  the   indictment  charged 
the  defendant  with  uttering  a  forged  cheque. 
ffdd,  that  the  count  was  not  sustained  by 


411 


CRIMINAL  LAW. 


412 


WttH  extratliteil,  iind  Imviiin  lit'cn  ilecided  liy  the 
Iiit'siiliiig  Jiiil),'!'  iijiiiiiiMt  tlif  (Ict'i'iiilant, 

//'/(/,  tliiil  it  WHS  t(i(i  lute  to  liii.si'  tli(;i|UL'Hti(in, 
1  y  11  <-'i"*«'  icxfivt'd,  for  tin;  full  rouit. 

(Jiitiii   V.  Cnniiiiiiihitnl,  (i  K.  it  (1.,  'M  ; 
(if.  L.  T.,  \'M. 

Si  I    SlljiI'd,,  7. 

10.    Enibczxlenicnt    Muncy  received  not 

as  rtfrvanfc  or  clerk  -'i'lie  prisoner,  not  having 
lui'ii  in  the  employ  of  the  |)ro.ieeut(if,  wiis  sent 
tiy  hini  to  one  Milner  uitii  a  hor.se,  as  to  whieh 
Milnei'  and  the  pidseeiitor,  who  owneiHlie  horse, 
had  iiud  some  nejiotiations,  with  an  order  to 
Milner  to  give  the  liearer  a  eheipie  if  the  horse 
suited.  On  account  of  a  ilitl'eienee  as  to  the 
price  tlie  horse  was  not  taken  anil  the  prisoner 
hfought  him  liaek.  Afterwards  the  prisoner, 
without  any  authority  from  the  owner,  took  the 
horse  to  Milner  and  sold  it  as  his  own  property, 
or  professing  to  have  the  right  to  dispose  of  it, 
and  received  the  money,  giving  a  receipt  in  his 
own  name. 

//lid,  that  a  conviction  for  emhezzleincnt 
coidil  not  he  sustained,  as  tlie  prisoner,  when 
he  received  the  money,  diil  not  receive  it  as 
a  servant  or  clerk,  hut  sold  the  horse  as  his  own 
and  received  the  money  to  his  own  use. 

Queen  v.  7'oj>/i/e,  li  R.  &  C,  o6t). 

11.  Indictment—Application  to  quasli— An 

application  to  the  C'oiut  on  the  part  of  a  defen- 
dant to  (juash  an  indictment  will  be  refused 
unless  the  defect  is  clear  and  obvious.  The 
defendant,  hy  pleading  to  the  indictment,  will 
exclude  himself  from  having  his  application 
entertained. 

Where  the  defendant  has  had  an  opportunity 
to  nu)ve  to  quash  tiic  indictment  when  the  cause 
was  called  for  trial,  and  before  the  jury  was 
sworn,  but  has  neglected  to  avail  himself  of  it, 
he  is  put  in  no  better  position,  as  regards  his 
application,  hy  the  jury  failing  to  agree  on  a 
verdict  and  being  discharged  in  consequence. 

Queen  v.  IVallace,  1  N.  S.  D.,  382. 

12.  Indictment  — Defects  in  —Waiver  by 

pleading — The  defendant  was  convicted  on  an 
indictment  charging  him  with  feloniously  recei- 
ving, in  the  months  of  May  and  April,  1878,  one 
pair  of  boots,  the  goods  of  W.  H. ,  three  fishing 
rods,  kc. ,  the  goods  of  A.  F.  C. ,  and  a  quantity 
of  silverware,  &c.,  the  goods  of  J.  R.  J.,  then 
lately  before  stolen  and  carried  away  by  a  certain 
evil  disposed  person,  he,  the  said  T.  J.  Quinn 
then  well  knowing  the  said  goods  and  chattels 
to  have  been  feloniously  stolen, 

Beld,  that  the  defendant  having  pleaded  to 


the  indictment,  could  not,  in  arrest  of  juijg. 
nient,  take  the  objection  that  the  indirtmint 
was  bad  in  law  as  charging  him  witii  liavlni' 
received  certain  goods  which  were  not  allcgtil 
to  have  been  filoii'tMinlii  stolen,  as  the  dcfccl 
was  aided  by  the  verdict,  inuler  cliapt'.r '.1li,f 
the  Acts  of  18()0,  section  ',V1  ;  ami  fuitiier,  tlmt 
the  fact  of  three  diU'ereiit  oH'cnces  being  rii,uj,'iil 
in  the  indictment,  if  objectionable  at  all,  coiiM 
not  be  taken  advantage  of  after  verdict. 

The  pri.soner  was  tried  by  a  jury  called  finni 
an  extra  panel,  the  order  for  which,  made  iinilur 
4th  H.  S.,  c.  (VJ,  B,  ,S7,  was  signed  by  only  tlirte 
of  the  Judges. 

//ihl,  that  the  order  was  valid,  altiiough  not 
signed  by  a  majority  of  the  Judges. 

Qui!  It  V.  Quiiiii,  1  H.  I'c  <;.,  I.to. 

13.  Indictment  for  lieeplni?  dynamite - 

Whether  carelessness  need  be  alleged  -Imlict- 
ment  charging  the  defendants  with  having  un- 
lawfully, knowingly  and  wilfully  deposited  iu  a 
room  in  a  lodging  or  boarding  house  (described) 
In  the  City  of  Halifax,  near  to  certain  stii'i'tsor 
thoroughfares,  and  in  close  proximity  to  divers 
<lwelling  houses,  excessive  quantities  of  a  dan- 
gerous and  explosive  substance  called  dynamite, 
by  reason  whereof  the  subjects,  &c.,  were  in 
danger. 

//e/il,  gootl  without  alleging  carelessness  or 
that  the  (luantitics  deposited  were  so  great  that 
care  would  not  produce  safety. 

Weatherbe,  J.  dinfitiitiiiii. 

Queen  v.  Ilolmea  and  Bmirii, 

5R.  &G.,498. 

14.  Indictment  for  perjury— In  an  indict- 
ment for  perjury,  which  charged  the  defendant 
with  having  sworn  falsely  on  certain  proceed- 
ings before  Justices,  wherein  he  was  examined 
as  a  v.'itness,  the  allegation  of  materiality 
averred  that  "  the  said  D.  R.  (the  defendant) 
being  so  sworn  as  aforesaid,  it  then  ami  there 
became  material  to  inquire  and  ascertain,''  &c. 

Jleld,  bad,  as  not  sufficiently  showing  that 
the  alleged  perjury  was  committed  at  the,  said 
proceedings. 

Queen  v.  Boss,  1  Old.,  683. 

15.  Intention  criminal,  inferred  ft-om  the 

act  — Where  a  prisoner  is  indicted  for  feloni- 
ously wounding  with  intent  to  do  grevious 
bodily  harm,  the  intention  may  be  inferred 
from  the  act. 

Queen  v.  LeDante,  2  N.  S.  D.,  401. 

16.  Insane— Care  of— It  is  tbe  duty  of 

the  Executive  Government  of  the  Province  to 


413 


CRIMINAL  LAW. 


414 


aMKiiniL'  the  custody  nntl  cure  of  jie rsons  acquit-  i  the  Court  liy  liiH  L<ii-(lHlii]>  the  C'liief  Justice, 
1,(1  (if  criiiiiiuil  chiugcs  upon  tlio  ground  of  wlio  presided  at  tiie  trial,  that  wliftlier  tlio 
iiiMiiiitv,   whicii  iluty,   l)y   the  ooninion   hiw  of    illegality  conNi«ted  in  the  order  of  the  .sergeant 


Kii(,'liUHl,  is  vested  in  the  frown 


r  in  the  manner  in  which   it  wax  carried  out, 
Qnii  n  V.  Murtiii,  James,  .SiK,    Stowc  might  properly  he  convicted. 

A/mu  that  the  jury  were  justilied  in  tinding 
that  the  death  of  White  wan  eauseil  or  aceele- 
lated  tiy  the  way  in  which  he  was  tieil  hy 
JStowe  or  hy  his  directions. 

(^hiitn  V,  Sto>r<,  i  X.  S.  J).,  I'il. 


17.  Jury  de  meilictnte  linguae  -  Aliens 

not  entitled  to— Alien  may  be  juror— Alien 

(lifiiiiliiiits  are  not  entitled,  in  this  Province,  in 
aiiv  lase,  civil  or  criminal,  to  a  jury  tk  iinille- 
idti  liiiijiiii . 
An  alien  may  he  a  juror. 

(,iH<ni  V.  Ihn-ilill  It  al.,  1  Old.,  12tj. 


18.  Jury  list  —  Omissions  In  — The  omiS' 

sjiiii  of  tlic  residences  and  ticcujjations  of  grand 

j\iriirs  in  the  list,  and  in  the  panel,  held  snlli- 

I'itnt  grnunds  for  ({uashing  an  indictment  for 

iVidiiy. 

Qnctu  V.  Jiili/ffi,  James,  2*20. 

S)(tmaH  V.  Cnmi'liill,  James,  94. 

10.   Malicious  Injury  to  animal— 3rd  R.  S. 

c.  169,  s.  22— Defendant  was  convicted  of  hav- 


21.    Motion  In  arrest  of  Judgment  —  Two 

offenceH  in  anme  indictment  Stating  unknown 
person  in  indictment  .\  motion  in  arrest  of 
judgment  may  he  made  for  any  suiistantial 
defect  which  appears  upon  the  face  of  tho 
record.  If  the  ohjection  he  valid,  tho  whole 
proceedings  will  he  set  aside,  hut  the  j)arty  may 
he  indicted  again. 

An  indictment  is  clearly  had  where  two 
oflences  are  charged  in  a  single  coimt. 

Where  the  names  of  third  persons  cannot  he 
ascertained,  it  is  sutlicient  to  state,  "a  certain 


,    ,      ,      .  „  I  person  or  persons  to  the  jurors  aforesaul  un- 

iiii,'  HI  a  secret  and  clandestnie  manner,  cut  oil    ,  ,, 

,    ,    .    ,  ,  ,      .,      ^  ,  I  known, 

V""»  V.  n/nckk,  1  N.  S.  ]).,  383. 


the  hair  from  the  manes  and  tails  of  two  horses, 
tlic  ]>roperty  f)f  one  William  Ballam. 

//■.'/,  tiiat  the  ofTence  was  covered  by  sec.  22, 
ciiiip.  1()!),  R,  S.,  3rd  series,  under  which  defen- 
ilant  was  indicted. 

.lAo,  that  the  offence  having  been  committed 
Hiongfidly  and  intentionally,  without  just  cause 
or  excuse,  and  with  full  knowledge  as  to  the 
ownership  of  the  property,  malice  might  be 
f.iirly  inferred. 


22.    Murder— Ambiguous  verdict -Venire 

ilf  iiuro — When,  on  an  indictment  for  murder, 
the  jury  returned  a  venlict  in  the  following 
words:  "Guilty  of  murder  with  a  recommen- 
dation to  mercy,  as  there  is  no  evidence  to  show 
malic'j  aforethought  and  premeditation," 


//(/(I,   that  it  was  too  aml)iguous  and  uncer- 
Qiieeu  v.  Smith,  1  N.  8.  D.,  29.  i  *'>'"  t"  iHow  the  Court  to  pronounce  any  judg- 
ment on  it. 

Qiiein  V.  Hea/ey,  2  Thom.,  331. 


20.   Manslaughter— Punishment  of  soldier 

—Death  caused  by— The  defendant,  a  corporal 
of  the  Kith  regiment,  was  tried  for  the  murder 
of  James  White,  a  private  of  the  regiment,  and 
convicted  of  manslaughter.      It  appeared  from 


Remarks  as  to  whether  a  venire  tie  novo  can 
be  granted  in  a  capital  case.  lb. 

23.    Murder— Circumstantial  evidence  — 


the  evidence  given  at  the  trial  that  White  ^  Reserved  case  — Power  of  Court  to  set  aside 
having  been  placed  in  confinement  while  in  a  '  verdict — H.  D. ,  J.  C.  I),  and  L.  were  tried  for 
state  of  intoxication,  the  defendant  with  two  |  murder.     H.  I),  and  J.  C.  D.  were  found  guilty 


men  were  ordered  by  Stevens,  a  sergeant  of  the 
regiment,  to  have  the  deceased  tied  so  that  he 
could  not  make  a  noise  by  kicking  and  shouting. 
The  order  was  not  executed  in  such  a  manner 
as  to  entirely  put  an  end  to  tlie  noise,  and  a 
second  order  was  given  to  tie  up  the  deceased 
so  that  he  could  not  shout.  In  carrying  out  the 
latter  order  Stowe  caused  the  deceased  to  be 
placed  on  the  floor  face  downward,  with  his 
hands  cuffed  behind  his  back  ;  a  rope  was  fast- 
ened to  his  feet,  which  were  drawn  up  behind 
his  back,  and  the  rope  passed  over  his  shoulders 
and  across  his  mouth  and  back  again  to  his  feet, 
■ffe/rf,  in  reply  to  two  questions  reserved  for 


and  L,  acquitted. 

The  following  case  was  reserved  as  to  J.  C.  D., 
under  Rev.  Stats.,  c.  171,  ss.  99  and  100  : — 

Admitting  the  evidence  to  have  been  legally 
before  the  Court  and  to  be  worthy  of  credit  as 
the  jury  have  considered  it,  is  there  any  legal 
evidence  in  this  case  under  which  the  conviction 
of  the  said  J.  C.  D.  is  sustainable  in  point  of 
law. 

J.  C.  D.  was  mate,  H.  D.  cook  (colored),  and 
L.  a  seaman  of  the  vessel  on  board  which  the 
murder  was  committed.  The  murder  was  com- 
mitted at  sea  and  the  murdered  man  was  captain 
of  the  vessel.  There  wt  s  no  evidence  that  J.  C.  D. 


41.') 


CRIMINAL  LAW. 


4i(j 


IivrHiiniiUy  coniiiiittutl  thu  iniinlei',  unci  no  iliriTt 
or  pcmitivi!  I'viik'iiPi!  that  liu  cfmnsclli'il  or  ml- 
vixtMl  it.  'riie  cviilc'iu'i'  i\;;iiiii«t  him  Wii.s  wholly 
«'iivuiUMtiiiitial,  and  wiih  in  ln'iuf  iis  follown:  — 
At  4  i>'i'l<ii'k  (in  the  niornin;,'  <if  the  niiinlfi' he 
WHS  inijuiring  for  H.  I>. ,  and  went  t'luwiiril 
whciv  II.  I),  was  i)l('i!piii|{,  Tho  oajitiiin,  while 
lyinK  in  lii»  lii'i'tii  in  his  rahin,  lietwi'fn  4  a.  m, 
anil  ."(  a.  ni.,  was  struck  in  the  t'aco  liy  II.  I). 
with  an  iron  liclayiiig  pin.  'I'hu  lilows  wure  re- 
pt'ati'd  «t'\<'i'al  times,  and  II.  I),  then  "  got  on 
thu  uaptaiii  and  held  him  down,"  I,.,  (who  had 
previiMisly  lieen  on  deck,  luit  had  gone  lielow, 
liuingsent  for  hy  H.  D. ),  cainu  on  deck  wringing 
his  hands  and  saying,  "  tho  eook  hast  killed  thu 
ea]itain."  .!.('.  I),  immediately  after  this  came 
ii|>  from  the  forward  cahin.  S.  (a  lioy  on  hoard 
tho  ve.Hsel,  and  tho  prinei|)al  witness  for  the 
jn'osecution),  then  asked  J,  ('.  1).  what  was  the 
matter,  to  which  he  replied  that  he  did  not 
know.  .1,  (,'.  1).  then  went  forward,  lit  his  jiipe, 
laid  down  on  H.  D.'s  chest,  smoked  a  few  min- 
utes, and  then,  with  tears  ruiniing  down  his 
face,  told  S.  to  "go  to  the  cahin  ami  help 
Harry  "  (H.  I)).  .S.  refused  to  gc»,  aim  J.  V.  1). 
then  gave  the  same  order  to  L.  and  M.  (one  of 
the  crew),  who  also  lioth  refused  to  go.  J.  C.  D. 
then  repeated  the  order  to  L.,  who  then  went. 
H.  I),  and  L  then  hrought  the  captain  up  and 
threw  him  overhoard.  The  captain  was  not 
<lead  when  hrought  up,  but  there  was  no  proof 
that  J.  C.  I),  could  see  that  he  was  still  alive. 
The  captain  groaned  loudly  after  being  thrown 
over,  •  nd  lifted  his  hands  up,  .1.  C.  D.  was  at 
this  time  eryinr^.  He  then  told  M.  to  throw 
the  captain's  bedclothes  and  mattress  overboard, 
directing  him  and  L.  to  ])ut  iron  in  the  latter  to 
make  it  sink.  H.  Vt.'a  hands  and  sleeves  and 
the  bosom  of  his  shirt  were  bloody,  and  J.  C.  D, 
advised  him  to  wash  the  blood  off.  H.  1).  then 
brought  up  the  captain's  small  trunk  containing 
the  ship's  papers  and  handed  some  of  them  to 
J.  C.  ]).,  who  then  said,  "we  cannot  do  what 
we  inttnded  to  do."  (.S.  on  cross-examination 
said,  "  1  do  not  think  he  said  'as  you  intended,' 
he  might  have  said  so.")  S.  then  asked  him 
what  he  intended  to  do,  when  he  said  "that  he 
intended  to  go  to  the  West  Indies  and  sell  the 
cargo  of  coal ;  then  he  intended  to  go  to  Mexico 
and  sell  the  vessel,  but  they  could  not  do  what 
they  intended."  J.  C.  D.  then  directed  S.  to 
burn  the  captain's  private  letters.  He  then 
said  that  the  best  thing  they  could  do  was  to 
steer  to  land  and  sink  the  vessel.  The  vessel's 
course  was  then  directed  to  the  land  by  J.  C.  D.'s 
orders,  and  when  near  the  land  he  directed  a 
hole  to  be  bored  in  the  vessel,  near  the  water 
line,  and  her  name  to  be  painted  out.  The 
whole  crew  then  left  the  vessel  and  went  ashore. 


il.  ('.  1).  stated  to  persons  whom  they  nicl,  mul 
aim)  when  examined  before  a  magistrate  uimp  tli>' 
place  where  they  laiuled,  that  they  had  left  ilic 
:  vessel  because  she  was  leaky,  ami  that  they  liinl 
lost  llie  captain  overlioard. 

He  denieil  any  knowledge  of  the  vessel  liaving 
a  hole  in  her  side,  or  her  name  being  ])aiiitvi! 
out.     He  also  told   M.  that   tliey  must  not  >;iy 
that  the  captain  lii'd  been  killed,      it  a|ip('ui'e'>i 
from  the  croMs-exainination  of  some  of  tliu  wit- 
nesses for  the   C'r')wn,   that   »ubse(|ueiitly,  and 
before  his  second  arrest,   J.  ('.   1).   ha<l  .statcil 
that  the  caj)tain  had  been    miu'dereil  liy  II,  |)., 
and  that  he  was  the  tirst  who  made  thi.s  state- 
ment.    This  statement  was  in  writing,  hm  it 
was  not  given  in  evidence  and  was  not  allow  i-.l 
to  be  referred  to  at  the  argument.     Jt  aiipiartil 
j  that  .1.   ('.   1).  and  H.    1).   had  sailed  togutlier 
I  before,   the  former  as  mate  and  the  latter  as 
'  boatswain,    of   a   cohired    crew.     The  captain's 
I  clothes   were   divided    among    tho    crew  in  tln' 
I  presence  of  J.  ('.  D.,  but  J.  C  ]).  to(-k  no  part 
of  them,     .S,    said   on   cross-examination,   tiiat 
t  J.  C.  1).  seemed  to  be  afraid  ol  H.  1).  ;  tiiat  lie 
(.S.)  was  afraid  of  him  too  ;  that  H.  1).  foiliiweil 
them  up  all  the  time  on  shore,  and  when  tliey 
were  in  bed,  and  said  that  if  either  J.  C.  1).  or 
S,   peached,  he  would    swear   them    down.     S. 
said   that  J.  C.  1).   was  kind  and  humane  ami 
seemed  to  be  religious  ;  would  not  allow  sweai - 
ing.     He  appeared  to  have  opposed  the  burniiij,' 
of   the  ship's  papers.     His  cabiji  was  oi)])osiU' 
the  captain's  and  within  a  few  feet  of  it. 

Held,  /)er  Young,  C.  J.,  Johnston,  E.  J.,  Dodd 
and  Desbarres,  JJ.,  Wilkins,  J.,  (//i.si  «^('»;/,  that 
there  was  evidence  proper  to  be  left  to  the  jury 
(it  was  left  to  them  with  confessedly  j)roin'r 
instructions),  and  the  jury  h^ivin^  passed  iiiinn 
it,  as  they  had  the  oonstitutiona'  i  ight  to  do, 
the  Court  had  not  the  power  to  set  the  verdict 
aside,  and  the  c(mviction  was  therefore  su^stain• 
able  in  point  of  law. 

Per  Johnstone,  E.  J. — That  the  verdict  of 
the  jury  was  ,  mistaken  one,  but  that  the  Court 
had  not  the  power  to  set  it  aside. 

Ptr  Wilkins,  J. — That  as  the  evideno!  did 
not  exclude  every  other  hypothesis  but  that  of 
guilt,  there  was  no  legal  evidence  to  sustain  the 
conviction,  and  that  the  Court  had  the  power 
and  the  right  to  quash  it. 

Queen  v.  Dowxey  et  al.,2  Old.,  93. 

24.    Murder  — Jury  attending  church - 

Remarks  of  clergyman  —  Medical  expert  — 
During  the  progress  of  a  trial  for  nmrder  the 
jury  attended  church  in  charge  of  a  constable, 
and  at  the  close  of  the  service  the  clergyman 
directly  addressed  them,  remarking  on  the  case 
of  one  Millniau,   who  had  been  executed  for 


417 


CRIMINAL  LAW. 


418 


iiuiidri'  ill  I'.  K.  !■<  iiixl  tiilit  tliuin  tluit  if  tliuy 
li.iijilifsiinlili'.il  iloiilil  of  till!  guilt  of  tliu  [irisim- 
lis  ilii'.v  «t'it'  tiyiii^i  tlii'y  hIiouIiI  iL'tiipfr  jiistife 
Willi  ciliiily,    ()iitM)f  the  piisoiit  n  wax  I'liiivictt'ii. 

//./-/,  iiliiiiiiiii!,' llii;  juilgiiiuiit  of  tliu  Court  of 
Cniwii  I'list'M  Kt'survt'd  for  Xova  Scotiii,  tlmt 
iiltliiiiiu'li  tilt'  ii'iiiai'ks  of  till!  I'k'igyiimii  wvw 
lii'lily  iiii|)i'i>|ii'i',  it  cdiilil  not  lie  Hiiiil  tlmt  the 
iiiiy  wtie  iiilliiuiiouil  liy  tiieiii  mo  um  to  ulluft 
lliuir  viTilit't. 

A  witiii'ss  oil  tin:  trial,  wiiicli  wiim  for  iiiuriloi' 
liy  .tlKiotiiig,  ciilk'il  ii«  a  iiit'ilical  t'.\|ii'i't,  Ntateil 
In  till'  Cidwii  jirosuuiitor  that  tlieie  "  weiu 
imlii  la  ill  iiii'ilical  Huifliuo  by  which  it  coulil  liu 
siiil  ill  wliat  iliNtaiici!  from  the  huiiian  liody  tlio 
j,'im  was  IIiimI."  'rhi«  was  olijcotfil  to,  but  the 
wiiiii'.Hs  was  not  iTosH-uxiiiniufd  as  to  tho  grounds 
(if  liis  statfiiu'iit.  Ho  tlu'ii  described  what  he 
fiiiiliil  on  exaiiiiiiiiig  the  boily  of  the  murdered 
iiiiiii,  and  stiiteil  the  inaxiiiiuin  ami  miiiiiiium 
ilistiuicus  at  which  the  shot  iiiUMt  have  been 
lireil. 

Ifilil,  alliiiiiiiif,'  jiidgiiiciit  below,  Strong  and 
rniiniiiT.  .1.1.,  ill"'"  iiiliiij,  that  the  opening 
sliituiiiciit  of  tlie  witness  established  his  right 
lii>])tiilv  as  a  medical  expert,  and  it  not  having 
lnuii  shown  by  cros.s-examiiiation,  or  by  other 
iiiwlical  evidence,  that  his  statement  was  untrue, 
hi*  eviikiice  was  |)roperly  admitted, 

V""»  V.  Prtipn;  1.")  .S.  f.  R.,  401  ; 
!)C.  L.  T.,  18. 

23.  OfTciice  committed  on  the  high  sens- 
Foreign  ship— British  subject — Jurisdiction  — 

A  liiitisli  ( 'ourt  has  no  jurisdiction  to  punish  a 
fiiieigiicr  for  an  otVence  committed  on  the  high 
sias,  ill  a  foreign  ship,  against  a  IJritish  subject.  1 
(i/iK.iii.  V.  Kliis/nnii,  James,  (52. 

'it).    Precept  to  abate  nuisance  —  Rule 

'('-/  granted  for  a  precept  to  the  .Sheritl'  of  the 
('iimity  of  Halifax,  to  abate  a  nuisance.  An 
iiiiiictiiioiil  had  been  preferred  against  the  de- 
fiiiilaut  ill  a  previous  term,  at  the  instance  of 
tliu  City  of  Halifax,  for  electing  a  buihliiig  on 
a  ;)ul)liL'  street,  and  a  judgment  obtained,  re- 
iliiiiiiig  Kim  to  abate  tlie  nuisance.  It  now  ap- 
piaiXMl  by  altid.rvits  that  the  nuisance  had  not 
Iji'cn  uliated. 
Rule  was  made  absolute. 

Quetii  V.  Hendry,  James,  105. 

21.  Kccognizance— Practice  on  entering 

judgment— In  this  case  an  affidavit  was  ob- 
tiiineil  from  the  Clerk  of  the  Crown  of  the 
fact  of  a  recognizance  having  been  entered  into 
•ly  the  defendants,  of  the  signature  of  the 
Justices  of  the  Peace  thereto,  and  its  return 
14 


into  the  .Miipieme  Court,  aiul  the  non.app^3aruneo 
of  the  party  to  jilead  to  the  indictment.  On 
this  allidavit  a  rule  ni'ti  was  obtained,  a  co])y  of 
which,  together  with  a  copy  of  tlie  allidavit, 
was  served  on  eaeli  of  the  defendants,  ity  1st 
H.  S.,  e.  100,  8.  17,  the  Justice  on  taking  bail  is 
rei|uired  to  give  notice  in  writing  to  the  party 
aci!iised,  of  the  time  anil  place  of  ti'iiil,  This 
had  not  been  ilone.  The  ipiestion  was,  whether 
that  clause  of  the  Act  was  merely  directory, 
or  wiiether  it  should  be  considered  as  a  condi- 
tion. 

/'(/•  llalibnrton,  C.  J. — As  there  appears  to  be 

no    settled  practice   relative   to    these   escheats 

here,  I  can  see  no  objection  to  the  proceedings 

taken  on  the  part  of  the  Crown.      Rule  alisolute. 

(JiiKii  V.  '/VioHiyw)/;,  'J 'I'lioni.,  9. 

28.  Recognizance    Practice  on  entering 

judgment  —  Judgment  will  lie  entered  <ui  a 
recognizance  against  both  principal  and  sureties, 
where  the  principal  has  not  appeared  in  accord- 
ance with  the  condition  of  such  recognizance  ; 
and  wliere  a  rule  »/.</  for  such  judgment  lias 
been  served  on  the  sureties,  and  the  principal 
has  left  the   Province,  and   they   have   failed  to 

.show  cause. 

V«"«  v.  Viiilihii/,  1  Old.,  701. 

29.  Recognizance    E.streating -In  order 

to  estreat  a  recognizance  taken  under  Dominion 
Act,  I8(i!),  c.  .SO,  all  that  is  required  is  a  ccrtiti- 
cate  from  the  proper  officer  (under  sec.  4.")  of  the 
Act)  that  it  is  forfeited  ;  upon  that  a  rule  iiiii  is 
taken  out  on  affidavit  of  tho  facts,  and  if  no 
cause  is  shown,  judgment  follows,  but  without 
costs. 

Practice  in  the  ijiwcii  v.  Thompson,  1  Thorn., 
9,  athrnied. 

<^hii:i  n  V.  Hirkmun,  .'1  R.  &  C,  '2Th}. 

30.  Second  trial  of  prisoners  under  in< 

dietment  —  Where,  on  the  trial  of  prisoiu-rs 
indicted  for  breaking  and  entering  a  bank,  the 
jury  disagreed,  and  there  was  no  time  left  for  a 
second  trial  during  the  then  sittings  of  tho 
Court, 

Jli'/d,  that  a  trial  could  bo  obtained  by  the 
issue  of  a  commission  by  the  tioverninent,  and 
that  the  Court  could  not  order  a  new  trial  of  the 
cause,  or  discharge  tho  prisoners  on  their  own 
recognizances. 

Queen  v.  Wa'ion  et  al.,  2  R.  &  C,  1. 

31.  Sentence  to  Dorchester  for  one  year- 
Discharge  refused — A  prisoner  was  convicted 
of  larceny,  and  sentenced  to  one  year's  imprison- 
ment in  Dorchester  penitentiary.     The  warden 


419 


CROWN. 


*20 


refused  to  receive  him  on  the  ground  that  the 
sliortest  period  for  which  prisoners  could  he  sen- 
tenced to  f)r  received  at  tlie  penitentiary  was  two 
years.  Prisoner  was  tlien  taken  to  the  County 
jail.  To  a  rule  in  the  nature  of  habeas  corpiin 
the  jailor,  in  his  return,  set  out  the  conviction 
for  larceny,  and  also  returnetl  that  the  prisoner 
was  detained  under  a  warrant  of  a  Justice,  for 
attempting  to  escape  hy  tearing  up  tlie  floor  of 
his  cell,  the  warrant  annexed  to  the  return  was 
under  the  hand  of  two  Justices.  The  C'oml 
refused  to  discharge  him,  and  decided  that  he 
should  be  sentenced  to  imprisonment  in  the 
common  jail,  for  one  year,  inclusive  of  the  period 
for  which  he  had  already  been  detained. 

Ill  rt  Hire,  2  R.  &  (i.,  77; 
1  C.  L.  T.,  .^i55. 

32.    Stolen  property  —  Restitution  of  to 

rightful  owner — Defendant  was  convicted  of 
having  received  certain  plates  covered  with 
amalgam,  stolen  from  a  crushing-mill,  knowing 
them  to  have  been  stolen.  An  application  was 
made  by  the  Napier  Gold  Mining  Company  for 
restitution  to  them  of  a  bar  of  gold  extracted 
by  defendant  from  the  amalgam.  It  being 
uncertain  whether  the  Company,  or  one  Shaffer, 
were  the  parties  properly  entitled  to  the  gold, 
it  was  ordered  that  the  gold  be  handed  over  to 
the  Company  and  Shaffer  on  their  joint  receipt, 
or  to  the  Company  with  the  sanction  of  Shaffer. 
Queen  v.  Blad;  3  N.  S.  D.,  231. 


CROW\. 
1.   Cannot  be  sued  or  enjoined— Remedy 

by  petition  of  right  —  Plaintiffs  sought  to 
enjoin  the  defendants  from  selling  the  road-bed, 
right  of  way,  rails,  sleepers,  rights,  privileges 
and  franchises  connected  m  ith  a  line  of  railway 
between  Oxford  and  New  Glasgow,  etc. ,  and  to 
set  aside  a  conveyance  in  trust  made  for  that 
purpose. 

It  appearing  that  the  Crown  was  the  princi- 
pal party  interested  in  the  conveyance  sought 
to  be  declared  void,  and  that  the  injunction  was 
virtually  against  the  Crown, 

ffeld,  that  objections  taken  to  the  jurisdiction 
of  the  Court  on  the  grounds  that  the  Crown 
was  not  liable  to  be  sued,  or  restrained  by 
injunction,  and  that  plaintiffs'  remedy  was  by 
petition  of  right,  and  not  otherwise,  must  pre- 
vail. 
The  Montreal  and  European  Short  Line 

Railway  Go.  et  al.  v.  Stewart  et  al., 

20  N.  S.  R.,  (8R.  &  G.),  115. 


2.  Crown    officers  —  Com  missions  of- 

CoiU't  ordered  commissions  of  Attoniey-dfiitiiil 
and  Solicitor-tJeneral  to  be  recorded. 

James,  ISl'. 

3.  Crown  property  -  Riglit  of  Crown  in 

respect  of  trespasses  to  Crown  property,  not 
limited  by  R.  S.,  cap.  12— Plainlilf  appliuil  h,x 
a  grant  of  Crown  laml,  and,  wliile  tlic  iipplini 
tion  was  pending,  defendant  illcgully  cut  a 
number  of  logs  on  the  lanil  and  removed  tlieni. 
The  logs  were  seized  by  a  Crown  siu'vcyor  unikr 
section  3  of  chapter  12,  R.  S.  (4tii  .scries),  ami 
were  afterwanls  driven  to  defendant's  mill  ami 
sawn  up.  Plaintiff,  having  lirat  demanded  tk- 
logs,  brought  trover  for  them  and  oljtaiiieil 
judgment  in  the  County  Court. 

Ile/d,  that  the  Crown  was  not  limitcil  to  the 
condemnation  proceedings  set  out  in  cup.  I'J,  H. 
S.  (4th  series),  as  the  chapter  di<l  not  expressly 
take  away  its  existing  remedies,  Imt  that,  as 
there  was  no  evidence  that  the  phuiititi'  hail 
ever  had  possession  of  the  logs,  the  appeal  iinist 
be  allowed. 

Monjan  v.  llice,  4  R.  &  G.,  308. 

4.  Right  to  seize  cliatteis  under  mortgage 

— The  plaintitT  E.  entered  into  a  contract  with 
Her  Majesty,  represented  by  the  Minister  of 
Public  Works  of  Canada,  for  the  constiuetioii 
of  certain  public  works  at  Mabou,  one  section 
of  the  contract  providing  in  substance  that  it 
should  be  in  the  power  of  Her  Majesty  to  make 
payments  or  advances  on  materials,  vessels, 
tools,  etc.,  used,  or  to  be  used,  on  the  works 
upon  such  terms  and  conditions  as  to  the  Minis- 
ter should  seem  proper,  such  materials,  etc.,  to 
be  thenceforward  vested  in  and  held  us  collateral 
security  by  Her  Majesty  for  the  due  fultilinent 
of  the  contract,  but  to  remain  at  the  risk  of  the 
plaintiff  E. ,  until  finally  used  and  accepted  as 
part  of  the  work  ;  the  plaintiff,  however,  to 
exercise  no  acts  of  ownership  or  control  over 
the  said  materials  without  the  permission  of  the 
Minister  in  writing.  A  mortgage  of  a  dreilge, 
etc.,  was  afterwards  make  by  the  plaintiif  E.  to 
Her  Majesty,  purporting  to  be  in  consideration 
of  §20,000  advanced,  and  conditioned  for  the 
repayment  of  the  sum  of  §20,000,  with  interest, 
in  one  year  from  date  of  execution.  May  i4. 
1872.  'J'lie  dredge,  etc.,  were  seized  by  defend- 
ant, acting  collector  of  customs,  under  orders 
from  the  Commissioner  of  Customs,  Ottawa, 
some  time  in  June,  1874,  and  an  action  of 
replevin  was  brought  by  plaintiffs  to  recover  the 
same.  It  was  proved  on  the  trial  by  the  admis- 
sion of  the  plaintiff  E.  that  a  sum  of  at  least 
$8000  had  been  advanced  under  the  mortgage, 
but  the  plaintiffs  claimed  that  a  balance  was 


421 


GUSTO xMS  HOUSE  EMPLOYEE. 


422 


due  from  the  depai'tinent  on  account  of  work  ' 
(lone  under  the  contract  and  specification,  anil  ; 
for  extras,  exceeding  all  sums  advanced  or  paid 
to  the  plaintiir  K.  by  the  department. 

HJd,  that  under  the  contract  and  the  mort- 
gage, an  advance  having  been  proved,  the  Crown 
had  a  right  to  authorize  the  defendant  to  effect 
seizure  of  tlie  property,  and  that  t!'H  evi'lence 
given  of  work  done  under  the  contract  was 
iigainst  the  policy  of  the  Public  Works  Act,  31 
Vic,  c.  1'2,  and  furnished  no  answer  to  the 
claim  of  .ho  Crown  upon  tlie  materials. 

Evim-  J  a).  V.  /I'oyv,  1  R.  &  C,  165. 


5.   G;' lints  by 


Ste  GRANT. 


CURRENCY. 

1.  Meaning  of  in  promissory  note— Notes 

were  declared  on  as  payable  in  United  States 
currency,  while  the  evidence  showed  that  tlicy 
were  payable  in  "  currency." 

ILbl,  that  as  they  were  made  payable  in  the 
United  States,  and  the  word  "  currency "  in 
that  case  would  be  held  to  mean  currency  of  the 
United  States,  the  variation  was  not  material. 

Further,  that  the  objection,  if  available, 
should  have  been  pleaded. 

Souther  et  al.  v.  iVallact  el  al., 

20  N.  S.  R.  (8R.  &G.),  509. 
Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada, 

9  C.  L.  T.,  210. 

2.  United  States  currency— What  sufficient 

tender  of— By  the  terms  of  a  lease  of  property 
situate  in  Nova  Scotia  it  was  provided  that  cer- 
tain payments  should  be  made  periodically  in 
"dollars  and  cents  of  United  States  currency." 
After  the  execution  of  the  lease  the  Congress  of 
the  United  States  passed  u  law  authorizing  an 
issue  of  treasury  notes,  not  bearing  interest,  and 
provided  that  they  "  shall  be  lawful  money  and 
a  legal  tender  in  payment  of  all  debts  public 
and  private,  within  the  United  States,  except  in 
payment  of  duties  on  import  and  interest  on 
United  States  bonds  or  notes." 

Held,  that  the  tender  of  United  States  treas- 
ury notes,  issued  under  this  Act,  was  not  a 
legal  and  sufficient  tender  of  the  payments  due 
under  the  lease. 

Nova  Scotia  Telegraph  Co.  v.  American 

Telegraph  Co.,  1  Old.,  426. 


CUSTOM. 
Usage  of  trade  —  How  proved  —  Where  a 

cargo  insured  "at  and  from  Arichat  to  Hali- 
fax," was  shipped  at  I'etit  de  (Jrat,  a  port  nearer 
to  Halifax,  and  distant  nine  miles  from  Arichat 
by  water,  and  one  and  a  lialf  miles  by  land,  and 
which  by  the  usage  of  trade  in  Riclimond,  the 
county  wherein  both  ports  are  situate,  appeared 
to  be  generally  considered  and  treated  l)y  mer- 
chants there,  and  by  the  masters  of  coasting 
vessels  in  Ifile  Madame,  the  large  island  wherein 
said  ports  are  situate,  and  also  partly  by  mer- 
chants in  Halifax,  as  one  and  the  same  jrart 
with  Aiichat ;  the  Custom  House  for  both  ports 
was  at  Ai'ichat,  and  the  vessel  and  cargo  were 
lost  shortly  after  the  vessel  left  I'etit  de  Grat, 

//i/d,  that  this  usage  did  not  bind  under- 
writers unless  known  to,  or  accjuiesced  in  by 
them  ;  and  no  evidence  of  such  knowledge  or 
acquiescence  having  been  given,  that  the  policy 
never  attached,  and  tiie  iniderwriters  therefore 
were  not  liable. 

Usage  must  be  proved  by  instances,  and  not 
by  the  ojiiuion  of  witnesses. 

Henntssy  v.  New  York  Mutual  Marine 

Iimiranct  Company,  I  Old.,  259. 


CUSTOMS  ACT,  ACTS  1885,  C.  12,  S.  228. 
Inland  Revenue  Act,  1883,  c.  11,  s.  72— 

Doubtful  whether  the  auctioneer  who  sells 
goods  seized  under  these  Acts  can  avail  himself 
of  the  protection  the  statute  gives  to  revenue 
officers. 

Not  bound  to  plead  the  general  issue  even  if 
held  to  be  an  officer  entitled  to  the  protection  of 
the  statute. 

It  is  a  privilege  which  the  officers  may  or  may 
not  make  use  of. 

McDonald  v.  Clarke,  20  N.  S.  R., 

(8  R.  &  G.),  254; 
8  C.  L.  T.,  401. 


CUSTOMS  HOUSE  EMPLOTEE. 
Who  Is  under  5th  R.  S.,  c.  4,  s.  67— In  an 

action  against  defendant  to  recover  a  penalty  for 
an  alleged  illegal  voting  at  the  election  of  a 
member  of  the  Provincial  Legislature  contrary 
to  the  provisions  of  5th  R.  S.,  c.  4,  s.  95,  it 
appeared  that  the  defendant  was  a  sub-collector 
of  customs. 
Held,  that  the  defendant  was  an  employee  of 


423 


DAMAGES. 


424 


the  Customs  House   within  the  lueiining  of  the    tlie    venlii't,    may    suggest  a    reihu'tioti   nf  the 
Act.  ilamages  ;  or,  where  tiie  suggestion   is  iicit  ac- 

Miinro  V,  K//lot>,  l2()  X.  S.  H.,  (S  R.  A'  (!.),.'?:K>  ;  itepteil,  may  or.ler  a  new  trial  on  the  ground  of 

y  C  L,  r. ,  (j."{.    excessive  ilamages  alone. 

Ctarh'  V.  FiilUr/oti,  '2  X.  S,  1).,  ;;4s. 


UAM.IGES. 

1.  Arrest,  etc.    Damages   One  hundred 

aiul  Hfty  dollars  not  excessive  damiiges  for 
arrest  ami  detention  hy  a  constable  for  half  an 
hour,  whore  tiie  i)liuntit!"  was  put  to  the  expense 
of  defending  a  suit  liefore  a  magistiate  and 
prosecuting  an  appeal. 

Cox  V.  r;,n„i,  '2Py.  k  C  r)'2s. 

Reversed  on  appeal  to  the  Su[)reme  Court  of 
Canada,  hut  on  the  ground  of  admission  of  im- 
proper evidence. 

aiiiiii  V.  Cox, ;}  s.  c.  R.,  L'oo. 

2.  Breach  or  agreement  of  sale  of  land  - 

Wlien  lands  are  bargaineil  and  sold,  the  measui'c 
of  ilamages  for  non-fulHhnent  of  the  agreement 
is  the  price  for  which  the  lands  were  so  sold. 

Li/m-h  v.  Hill!/,  '2  Tlioin.,  4 IS. 

3.  Breach    of    promise  of  marriage  - 

Evidence  in  mitigation  of  damages — //</(/,  in 
an  action  of  ))reach  of  promise  of  marriage,  that 
evidence  of  improper  con<lucl  on  the  part  of 
the  plaintiff  before  the  contract  had  been  entered 
into,  and  of  general  reputation  was  properly 
excluded 

^/"O,  tluit  if  the  evidence  was  offered  in 
mitigation  of  damages,  it  should  have  been  so 
tendered,  and  the  attention  of  the  .Judge  directed 
to  it. 

Einbret  v.  Wood,  '20  X.  S.  R.,  (8  R.  &(!.),  4(». 

4.    Collision  -Wliere  both  colliding  vessels 

are  in  fault,  neither  is  entitled  to  recover  dama- 
ges or  costs  from  the  other. 

The  Corddia  and  The  Oxiirey,  1  Old.,  772. 

5.  Excessive  —Where  the  jury  in  an  action 
of  trespass  found  for  the  plaintiff  on  the  ground 
of  adverse  possession,  the  defence  being  a  docu- 
mentary title,  the  Court  refused  to  set  aside  a 
venlict  for  one  hundred  dollars  as  excessive, 
although  defendant  had  a  good  documentary 
title  and  had  convinced  himself  before  commit- 
ting the  trespass  that  the  land  was  his. 

Desmond  v.  Fairbanks,  1  R.  &  C,  279. 

6.  Excessive  -Reduction  of  or  new  trial— 

Where  the  damages  awarded  by  the  jury  are 
excessive,  but  the  plaintiff  is  entitled  to  recover, 
the  Court,  in  the  exercise  of  theu"  control  over 


.  7.    Excessive  —  Setting  aside  verdict  on 

this  ground —Per  McDonald,  J.— This  wiin  im 
action  for  false  imprisonment,  and  the  defcndimt 
allowed  judgment  to  goliy  default.  Damages  wuie 
asses.seil  before  a  Jmlge  of  ti'«  Supreme  ('oiiit  liy 
a  jury  wiio  found  for  the  plaintitF  .S.'tT",  ami  ;i 
rule  nisi  was  obtained  to  set  aside  their  liiuliiii' 
on  the  ground  of  excessive  damages,  and  on  the 
grounds  mentioned  in  an  affidavit.  It  is  nnt 
neces.sary  to  refer  to  tiic  latter.  The  dculiua- 
lion  does  not  contain  a  comit  for  certain  speciiil 
damages  of  .•*;{()(),  which  were  ])roved  without 
any  olijection  at  the  trial,  although  tiie  defeml- 
ant  liail  counsel  engaged.  Wiiat  is  iiiorc,  evi- 
dence of  the  amounl  of  the  special  damages  was 
elicited  upon  the  cross-examination  of  the  plain- 
till'  )>y  tlie  defendant's  counsel.  It  does  not 
appear  lliat  llie  leiirned  .Iiulge  who  ])resiik'il 
instructed  the  jury  as  to  their  duty  under  the 
jjleadings  and  evidence.  I5y  the  evidence  itself, 
irrespective  of  the  pleailings,  it  is  (piite  cleur 
that  the  damages  were  not  excessive,  hut  if 
exce])tion  had  been  taken  to  the  recei)tioii  of 
evidence  of  special  damages  under  the  ileolara- 
tioii,  it  is  more  than  likely  that  such  exc:ei)tinii 
woidil  ])revail,  auil,  in  case  it  did  not  prevail, 
liien,  if  the  rule  «/</  to  set  aside  the  imiuisitioii 
had  been  taken  on  the  ground  of  the  receptimi 
of  impro])er  evidence,  and  also  on  the  giimnil 
that  tiuj  learned  .Tiidge  did  not  instruct  the  jiiiy 
as  to  the  speciid  damages,  it  woulil  be  dillicult 
to  upiiold  their  tinding.  Rut  the  ground  of 
excessive  damages  is  negatived  by  the  evidcnei', 
and  I  cannot  look  beyond  the  rule  iiiii  for  utlicr 
grounds  than  tho.se  chosen  by  the  coiuisel  who 
acted  for  the  defendant.  The  Courts  do  ii»t 
favor  the  setting  aside  of  verdicts  in  cases  of 
torts  for  excessive  damages,  tinless  such  excess, 
to  use  the  words  of  the  autiiorities,  be  out- 
rageous, or  unless  the  Court  be  .satisfied  that 
the  jury  acted  under  the  influence  of  undiio 
motives  or  gross  error,  or  misconception. 

The  case  of  Kiiii/ht  v.  Eijerton,  7  Exch.,  407. 
was  brought  before  the  Court  in  an  entirely 
different  manner  from  this.  There  the  rule  im 
for  a  new  trial  was  taken  on  the  ground  of  nus- 
direction,  here  it  is  not.  I  think  the  rule  im 
for  a  new  trial  ought  to  be  disclnirged. 
Fowle  V.  Smith,  unreported,  delivered,  Dec.  lSi3. 


8.   Liquidated— 


See  CONTRACT,  12. 


425 


DAMAGES. 


426 


9.  loss  of  vessel  by  shipwreck  after  cap.      12.    Measure  of,  in  action  on  warranty— 

ture—Cliiiiii  fill' 'liiiiiiig<'«i  iip""  loss  "f  vessel  by    When    tlic    bought-notc    Hpocities    the    article 

shipwri'ik  after  cai)tiire,    rejected,  tlierc  lieiiig    liouglit  to  be  No.  1  mackerel,  it  is  a  warranty 

111.  iiiiscoiiiliat  on  tiie  i)art  of  tlie  captors.  tiiat  they  are  of  that  (juality.     The  inspection 

Tht  Roiicio,  Stewart,  5oG.    of  a  few  barrels  before  the  purchase  does  not 

invalidate  the  wai'ranty. 

The    measure    of   damages    is    the    difference 

10.  Measure    of  damages    for   Injury    to    between  the  value  of  the  article  actually   sent 
goods  delivered  to  common  carrier- Plaintiff   to  tlie  foreign  market,  and  the  value  of  an  article 
(k'livered  to  defendants  a  roll  of  oil  cloth  to  be    „f  the  (luality  apecitied  in  the  bought-note. 
cciiiveyed  by   them  as   common   carriers.      On  !)■/,/•  v.  liis.-<( It,  2 'V\wm.,  ITS. 
iiirivid  it  was  found  to    be  damaged,    and  the 

]ilaiiitill' refusing  to  receive  it  brouglit  action  for  |3,     McasurC    Of    damages  -  Substantial 

it>  tail  value.     The  defemlants  paid  a  small  sum  performance  of    contract  —  Action   for  work 

iniu  Coui  t.     The  amount  of  damage  was  various-  done— Where  tiiere  is  a  substantial  performance 

ly  cstiinated  by  ditlerent  witnesses,  tlie  higliest  „f  work  undei'  a  special  contract,  though  not  in 

estimate  lieing  only  one-tiiird  the  alleged  value  strict  accordance  with  it,  and  there  is  no  fraudu- 

of  tiie  roll.     The  Judge  at  tlie  ti'ial  directed  the  lent  or  wilful  deviation  from  its  terms  the  c(m- 

juiy  timt  if  tliey  thought  the  tlamage  exceeded  n-ictor  is  entitled  to  recover  for  the  w  ork  done, 

till'  iiiiiouiit  paid  into  Court  they  should  liiid  for  the  measuie  of  damages  in  such  a  case  being  tlie 

tliu   pia.iititl',    ollierwise    fur    defendants.      He  agreed  price,  less  such  a  sum  as  it  would  take 

fiutlur  diiV'Lted  them   tliat  if  the  oil  cloth  was  to  complete  the  work  according  to  the  contract. 

iKil  seriously  damaged,  but  easily  reparable,  the  Mcliiloxh  tl  a/,  v.  C nihil,  2  OM.,  "itiS. 
]iliiintill' was  bound  to  leceive  it  and  claim  only 

•lainages,  but  if  too   seriously    injured  to  fulfil  ^^       KcdUCtion    Of- WhCrc   a    VCrdiCt    iS 

the  purpose  for  which  he  required  it,  he  might  f^^^^^_^,  _^^^,^.^^^^  ^,^^  ^.,^^^_.^,^,  ,,f  ^,,^,  _,,„,^,^,^  .^^j  j,,,. 

ehmii  its  whole  value.  unconira.licted    evidence   of    the   only    witness 

The  j:iiv  found  a  verdict  for  the  full  value  of 
tile  lull,  lifter  deduetiiig  tlie  sum  paid  into  Court. 

//'/'/,  Wilkiiis,  . I.,  (lisMii/iiKj,  that  there  had 
lieeu  a  niisdiieetion  ;  tliat  tlie  jilaiiititf  could 
only  leeover  damages  to  the  e.Meiit  of  the  injury 
lie  had  sutl'ered,  and  not  tlie  full  value  of  the  oil 
eliith,  and  that  the  rule  for  a  new  trial  should 
lie  made  alisolute  unless  tiie  plaintiff  would  con- 
sent to  have  the  amount  of  tlie  vei'dict  reduced. 
Payment  into  ('<iiiit  docs  not  admit  the  full 
claim  (if  ])laintiff,  but  only  tiie  liability  of  de- 
femhiiit  til  th(^  aiiioiiiiL  so  paid  in,  and  if  the 
plainlitl  would  recover  beyond  tiiat  amount  he 
must  prove  that  lie  is  entitled  to  do  so. 

Ihiiliji  v.  Wiiiil'ior  lO  AiiiKipolit  llallirnii  Co., 

•iX.  s.  IX,  r)37. 


examined  at  the  trial,  for  a  larger  amount  than 
the  evidence  warrants,  the  Court  will  either 
onler  a  new  trial,  or  if  the  jihiintiff  consents, 
reduce  the  damages  to  the  sum  warranted  by 
the  evidence. 

The  Court  have  power  so  to  ■.educe  the 
damages  with  the  consent  of  tlie  plaintiff  alone, 
and  against  the  will  of  the  defendant.  The 
(juestion  of  c<ists  in  such  cases  will  depend  on 
the  particular  circumstances. 

/»'/.«()•  <t  a/.  V.  //nr/  >/  a/.,  1  (.)lil.,  7l'7. 


15.  Remoteness  —  Where  a  vessel  is  de- 
tained by  tlie  charterers  beyond  the  aureed  time 
for  loading,  and  is  lost  in  a  storm  during  such 
detention,  the  hiss  of  the  vessel  is  too  remote  a 
coiise(|Uence  of  the  detention  to  form  the  sub- 
ject of  an  action  against  the  charterers. 

Where  part  only  of  a  declaration  is  bad,  the 
demurrer  should  be  to  that  jiart  and  not  to  tlie 
whole  declaration  ;  and  if  in  such  case  the 
(lelined  rules  for  estinvting  damages  ;  it  is  a  defendant  demur  to  the  whole  declaratiim  the 
matter  to  lie  submitted  to  the  sound  discretion  (v„„.t  will  give  judgment  on  the  demurrer  for 
mid  judgment   of  the  jury,    the   actual  loss  to    ^]^^  pUiintitf. 


11.   Measure  of,  in  action  for  injuries  to 

passenger    In  actions  against  carriers  of  jias- 
seiigers  fur   injuries,  there  seem  to  be  no  well 


tlie  plaintiff,  present  and  prospective,  being  the 
liiwcst  amount  which  they  are  justified  in  giving  ; 
and  the  Court  will  not  setasiile  an  assessment  of 


Tohin  V.  Symoiid.'<  if  a/.,  2  Ohl.,  141. 

16.  Sheriir  -Action  against—Measure  of,  - 

(liimages  by  a  jury  where  tiiere  is  no  evidence  to  Where  the  defendant,  as  si'eritf,  levied  on  eer- 

eliiiw  niisconduct  of  the  jury,  or  tliat  they  acted  tain    goods    under    executions,  and   a    writ   of 

upon  a  wrong  principle,  or  from  a  corrupt  motive,  attachment  in  bankruptcy  was  afterwards  issued 

o/'UK-hnrilv.  Wiiiilyor  li-  Aiina/iolis  Rni/iray  Co.,  against  the   execution   debtor,  but  the  sheriff, 

1  R.  &  C. ,  8.  after  the  issue  of  the  attachment,  proceeded  to 


427 


DEATH. 


428 


sell   under  the   exccutioua   and   paid   over  the  ' 
proceeds  to  the  execution   creditors,  the  Court  : 
refused  to  set  aside  a  verdict  against  the  sheriff,  j 
at  the  suit  of  tlie  assignee,  for  improperly  sell- 
ing tlie  goods,  etc.,  and  for  his  failure  to  iluly 
execute  the  writ  of  attachment  and  hand  over 
tlie  property  of  the  insolvent  to  tlie  assignee, 

Hild,  that  the  return  to  the  writ  of  attach- 
ment did  not  estop  the  plaintiff  in  the  present 
suit  from  saying  that  the  same  had  not  been  duly 
executed. 

Held,  alio,  that  a  verdict  for  the  net  proceeds 
of  the  sale,  with  12  per  cent,  ailded,  was  not 
excessive,  the  evidence  justifying  the  finding  of 
the  jury  that  the  goods  would  have  brought  that 
amount  if  properly  disposed  of. 

Kiiiuiy,  Aisii/iici',  v.  Dndmnit,  '2  R.  k  C,  19. 

17.     Wrongful    dismissal  —  Measure    of 

damages— In  an  action  for  wrongful  dismisscl 
plaintiff  ol)tained  a  verdict  for  the  whole  amount 
of  wages  from  the  date  of  dismissal.  Defendant 
contended  that  the  verdict  should  have  been 
reduced  by  whatever  s>nu  the  plaintiff  might 
have  earned. 

Hild,  that  as  the  eviilence  disclosed  that 
plaintiff  coulil  not  speak  and  ilid  not  understand 
the  language  of  the  country,  that  he  was  from 
life-long  habit  incapable  of  doing  any  other 
labor  tlian  that  of  his  trade  (to  engage  in  which 
he  had  come  to  this  country  under  contract  with 
defendant),  and  that  in  fact  he  could  not  obtain 
any  employment,  there  was  no  reason  for  dis- 
turbing the  verdict. 

Jejjkal  v.  Xnra  Si-ofin  (ilas-i  Co., 

2()  N.  ,S.  H.,  (8R.  &  (}.),  .388; 
9C.  L.  T.,  60. 


DARTMOITH. 
Liability  of  for  County  School  Rates  —  s, 

ASSESSMENT,  vi.,  4,  5,  and  (i. 


DEATH. 

1.  Death  by  same  calamity- No  presump- 
tion of  survivorship -Where  two  or  more 
persons,  and  especially  where  relatives,  perish 
in  the  same  calamity,  the  law  recognizes  lu)  pre- 
sumption of  suivivorsliip  ;  but  in  tlie  total 
absence  of  all  evidence  respecting  the  particular 
circumstances  of  the  calamity  the  matter  will 
be  treated  as  if  all  of  them  had  perished  at  the 
same  moment,  and   consetjuently  none  of  the 


parties  will  be  held  to  have  transmitted  any 
rights  to  the  other. 

A  testator,  .J.  C,  by  his  last  will,  bequeathed 
a  certain  fund  to  trustees  in  trust  after  payment 
of  an  annuity  of  t'SO  sterling  to  K.  H.,  ami  a 
disposition  of  the  remaining  income  during  the 
life  of  his  daughter,  L.  C.  (who  was  illegitiinate), 
Then  on  further  trust,  after  the  decease  of  his 
.said  daughter,  to  transfer  and  di.sposu  of  the 
said  fund  to  such  of  her  children  or  grand-chil- 
dren, as  should  then  be  living,  in  such  parts  and 
proportions  as  she  should  appoint,  or  otherwise 
in  0(iual  shares. 

By  a  subsequent  clause  he  proviilcil  that 
should  his  daughter  die  "  without  leaving  any 
lawful  issue,"  that  the  fund  should  be  paid  to 
his  nieces  in  equal  proportions,  or  to  their  law- 
ful issue  then  living. 

He  further  provided  that  the  above  bci|ncst 
to  his  nieces  should  I)e  subject  to  any  legacy  or 
legacies,  not  to  exceed  in  the  whole  t'llHHI  stcil- 
ing,  wliich  liis  daughter,  in  case  she  should  have 
no  lawful  issue,  might  by  lier  last  will  give  and 
be(jueatli,  notwithstanding  her  coverture. 

L.  C,  shortly  after  the  death  of  the  testator, 
married  H.  S.  11,  by  whom  she  had  three  child- 
ren, and  made  her  will  after  her  marriage 
(under  the  power  reserved  to  hei'  in  the  will  of 
the  testator),  whereby  she  l)equeatlied  out  of 
the  .said  fund  to  her  hu.sl)aiid,  H.  S.  15.,  fdiX) 
sterling,  and  to  her  mother,  K.  H.,  1401)  sterl- 
ing. Silt!  a)i|iointed  her  husband  executor,  and 
he  duly  jiroved  the  will  after  her  death,  as  here- 
inafter stated. 

L.  C,  then  L.  ){.,  with  all  her  children,  three 
in  number,  embarked  in  February,  l.Sd'J,  in  the 
steamer  "  Wicsbach,"  bound  for  Halifax,  but 
neitlier  the  steamer  nor  L.  15.,  nor  any  of  her 
children,  ever  arrived  at  Halifax,  nor  had  any 
information  been  since  received  of  the  steamer, 
nor  of  L.  15.,  nor  of  any  of  her  children,  nor 
what  has  become  of  tiieiii,  iior  how  or  in  what 
manner  the  said  steamer  was  lost,  noi'  how  or  in 
what  manner  the  said  L,  15.  and  her  childier. 
died,  and  which  of  said  children  died  first  or 
last,  but  it  was  assumed  that  some  time  dnriiig 
the  year  ISfi'i  the  said  L.  15.  and  all  the  ( liildien 
that  she  had  by  the  said  H.  S.  15.  (who  survived 
her),  being  the  three  mentioned  above,  perished 
on  board  the  .said  steamer  "  Wiesliacli,"  ti>at 
foundered  at  sea  under  circumstances  unknown. 

ffr/d,  Hrst,  that  the  fund  could  not  be  assigned 
to  H.  S.  B.,  as  the  heir-at-law  of  the  ihildren 
of  himself  and  of  L.  B.,  because  such  children 
were  entitled  as  should  be  living  at  the  decease 
of  L.  B.,  and  there  was  no  proof  that  any  of  the 
children  were  so  living,  i.  <'..,  that  any  of  the 
children   survived    her,    and,  she   liaving  been 


429  DEED.  430 

illiLritiiniitc,  tlie  title  of  her  children  depended  from    America   with   ii  cargo  of  provisions   to 

I'litiiL'lv  111!  tlie  will  of  the  testator.  (iihrallar,  from  thence  to  l>ourdeaux,  where  she 

Seamdly,  tliiit  tlie  fund  could  not  he  assigned  took  on    board   a   cargo  of  wine,  was  captured 

to  tlie  nieces  oi    (heir  I'epresentatives  because  in  1811  upon  her  return  voyage  to  the   United 

thiir  title  (lejicndnl  entirely  on  the  daughter  L.  States   for  violation  of   the  order-in-council  of 

I'.,  ilyiiii.'  witliout  leaving  any  lawful  issue,  anil  'J.")tli  April,  180!),  which  declareil  that  "  all  ports 

tlinc  was  no  jiroof  whether  she  did  or  dill  not  so  under    the     government    of     France    shall    be 

ilic, /. '.,  ^vlictlier  livr  children  did   or  did  not  subject    to    the    same    restrictions  in  point  of 

survive  her.  trade    and    navigation,   as    if    the    same   were 

Tiiiidly,  that  the  will  of  L.  H.  could  not  take  actually  Idockaded." 

fctlkt    liccause    she    was    only    empowered    to  //(/</,  that  the  Due  de  (.'adore "s  letter  to  (ien- 

ln.|U('ath  the  CltXXt  sterling  "  in  case  she  had  no  eral  Armstrong,  dated  August  .5th,  1810,  stating 

lawful  issue."  and  she  had  issue  born,  and  there  that  the  French  decrees  should  cease  to  operate 

w.is  no  pinof  of  survivorship  between  her  issue  on  the   1st  November,  1810,  provided  "Kiigland 

ami  linself.  should  abandon    her  orders-in-council,  and  her 

Lastly  (llicre  being  an  intestacy  in  the  events  new  jiriiicijjle  of  blockaile  "  had  never  operated 

that  lia|)|pi'ned),  tli;it  the  whole  of  the  fund  must  to  repeal  the  decrees, as  the  British  (Jovernmcnt 

1k'  (listiilmtcd  among   the    next    of    kin  of  tlie  had  not  abandoned   the  orders-iu-council ;   that 

tc.-tatiii,  subject  to  the  payment  of  the  annuity  the  order  of  April  "JOth,  I80!t,  was  still  in  force, 
ti>  K.  11.                                                                      I  and  the  vessel  and  cargo  forfeited. 

Tlui|iifsticinas  to  whether  the  intestacy  should  This  case  discusses  the  distinction  iietween  an 

lio  L'iiiii]iiiti  il  from  the  time  of  the  death  of  the  ordinary  blockade  and  the  conditions  of  things 

tistator,  or  from  the  date  of  the  events  which  under  the  Kiiglish  oider-in-council,  and  sujiports 

liiiiihkiil  llie  intestacy,  was  ordered  to  l)e  argued,  the  right  of  the  English  to  enforce  the  order. 

ami  the  decision    thereon    leserved    until   after  The  Xiir  Or/iaiii  I'luktt,  .Stewarl,  2(j0. 
siicli  ai;.'nnu'nl. 

Hwi-^hi>n(i  1 1  a/,  v.  Wi/h-lii-i  it  a/.,  '2  Old.,  270.  

I 

2.   Presumption  of,  rrbiitted  -The  adinis-  DEED. 

sioii  nil  tlic  iccoid   that    Jiaities   arc   alive,  jinv 

dmics  t!ic  i.rosumption  of  their  death,  arising      t.    Absolute  deed  -Claim  to  liave  It  de- 

fiDiii  coiitinufd  absence.  creed  a  mortgage— Defendant   took  a  convey- 

JJuniii   V.  MrKdiinj,  James,  3'28.    ance  of  land  from  A.  F.  LeHlanc  in  the  form  of 

I  an  absolute  deed,  dated  I'Oth  July,  18(i4,  and  at 

!  the  same  time  executed  a  bond  to  reconvey  iijion 

reitaynicnt    of  the   consideration    money  of  the 
DEBENTURES.  !  deed  within  two  years.     At   the  expiration  of 

that  period   det'eiidant   asked    LcHlanc   wliether 

"Issue  of"   -  Distinguished   from    "sign-    the  money  wouhl  be  lepaid,  or  he  should  keep 

ins."  ^I'l'    l'""!.   t"    wliich    Lcl'.lauc    replied    that  he 

/'' i' Hitcliie,  K.  ,J. — .Signing  is  not  issuing.  would    ])icfcr  that    defendant  should   keep  the 

/'"■  Wilkiiis,  ,r. — "Issue"  means  to  jmt  forth    land.     The  bond  was  given  u))  to  defendant  and 

•sii  as  to  liiiid  the  party  issuing.  he  took  the  land,  allow  iiig  Leillanc  to  live  on  W., 

Jdimtt  V.  Sinclair,  I  R.  &  C,  .'iit^.    but  no  rent  was  paid,  and  neither  the   ])rincipal 

I  nor   the    interest    of  the    money    advanced    by 

defendant,  who  afterwards  sold   the   land  for  a 

(  larger  sum  than    the    amount   of  his  advances. 

DECEIT.  i  LeIUanc   afterwards    became    insolvent,  but    at 

I  the  time  of  his  giving  up   the   property   he  was 
^<'   FRAID  AND  MISREPRESENTATION.       '  not  indebted  to  any   of  the  creditors  who  had 

I  claims  against  him  when  he  went  into  insolvency. 

'  His  assignee  sought  in   this  action  to  have  the 

deed    decreed    to   lie    a    mortgage.      Decree    for 
DECREES  OF  BERLIN  AND  MILAN.  defendant  with  costs. 

V  ,  JIiiiili  rMtii  V.  i'nminn,  \\.  K.  1).,  87. 

>ot  revolted  by  Due  de  Cadore's  letter  of 

August  5th,  1810  —  Diacussion  of  retaliatory      2.    Absolute   In    terms  decreed   to    be 

measures    adopted    by    England    and    their    mortgage — I'laintill',  lieing  iiuleliteil  to  several 
legality— An  .American  vessel,  which  had  sailed    persons,  conveyed  property  to  his  son,  under  an 


431                                                      DEED.  4:^2 

iij,'rci'iiiciit    tliat    the   sdii    should    li(|uiilalo  tlio  mid  tlio  i-ciil  oki  .to  sold  tlicfeuiiiU'i'.     .\t  tlic  sal,. 

dclits,  and  the  {ilaintilf  should  hiivo  six  yi'iirs  to  the  adniinistmtnr  ])uruhiised  the  land  ami  suli. 

])ay   liini   such  amounts  as  he  should  advance.  sei|ucnlly  exccutecl  a  deed  of  it  to  the  ])liiiiitjt|', 

jilaintitF  to  remain  in  possession  in  the  iiu'anliint',  I'levious   to  executinj^  this   di'od.  the  adiiiinis. 

and  if  he  failed  to  it'jiay  the  anioitnts,  the  land  tiatoi'  olitaincd  a  letter  of  license  to  sell  llic  real 

should   liecome  alisolutely    the  |Udperty  of  the  estate  under  which  tne  s.inie  lands  were  sold iind 

son,  wild,  coiitcmpoianeously  wilii  the  execution  liouj;ht  in  liy  idaintiU'to  whom  the  adniinistiiitdi- 

of  the   deed,  delivered  ii   liond   conilitioned  foi'  j^ave  a    deed.     The   consideiation   ex|)i'esseil  in 

the  fulfilment  of  the  ai,'reenient.     The  son  after-  the  deeds  was  not    actually   ]>aid    Ity    jilaiiiliir. 

wards  conveyed  the  projieity  to  Dinm.  who  was  IJoth  the  deeds  to  him  hore  date  the  same  day, 

aware  of  the  leiins  of  the  a^'reement.  and    were    recorded    (he    same   day.      I'laimitf 

Ilihl,   thai    the    transaction    was    in    eU'ect    a  lirout;ht   ejectment  aj^ainst    tiie  occU])iers  nf  the 

moiI;,';igi>.   and   that    Dunn   coidd  not    claim  to  pro))erty.  and  ihcy  defemled  on  the  trrduiid  that 

ludd  the  land  as  security   for  an   allei.'ed  claim  |dain(iir  iiad  no  title,  as  he  claimeil  thriniL'li  tlic 

ajiainst  the  plaintitl',  \\hicii    \w   had   discliarj,'ed,  administrator,  «  ho  was  delial'red,  )iy  the  rclatimi 

and  wliicli  was   not    mentioned   in   the  original  he  liore  to  tiic  real  estate,  from  ;,'iviin;  any  litlo 

aj;reemeiit,  hut    should   re-convey   the    land  on  to  it. 

liayment  of  the  amount  due  ..n   the  agreement  //'/(/,   that  although   the   deeds  could   Ipc  sit 

lietwcen  |>laiMti(r  and  his  son,  less  any   income  asi<le  in  eijuity,  on    a|)piication  ot  the  hciis  m 

derived  liy  Dunn  from  the  land.  cieditors,   yet,   until  that    right    was  cxcrciscil, 

Kiiolmi   V.   Dtiiiii  1 1  til.,  I!.  Iv  D. ,  ."il»t.  tiie  heirs  could   not    resist    a   ri'covciy    in  ejwt- 

nu'iit.   and   that    the    vci'dict    for    pliiiititl'  must 

3.  Absolute  In  Icriiis  dcrrccd  lo  be  inort-  '"  »*"-*i'''""' 

gage     Defendant,  on  Mardi  '11,  l,S(il,  conveyed  !                M'l.n„l  v.  (Ulli, .  ,i  „l.,  1  \.  .v.  |»,.  •_>,". 
to  J.    .1.    Marshall    certain    re.il    estate,  hy    an 

instrmnent  iu  the  form  of  an  ahs.dutc  dce.l,  l.ui  5.    Adiiiliilslralop's  rteert,  reoltiil  III,  pre- 

which   defenihuit    contended    was    given   as   a  sumptive  evidence  that  sale  duly  advertiswl- 

mortgageto  sccun'  a   del.t    due    Marshall.      On  The  Courl  will  not  favor  olijcctions,  taUci,  against 

.lanuaiy  I,  ISdj,  .Marshall  signed  a  meirioiandum  ^  sale  of  real  estate  hy  an  adniinislratnr  for  jiay- 

acknowlcdgiug    tlu>    receipt    of    178,    1S«.    4d.,  uient  of  del.ts,  umhr  an  order   of  thi'  ( lovinnir 

from    defendant    on    account    of    the    projierty,  and  Council,  after  the  puichasei' has  heen  lliirticii 

"  leaving  a  l.alance  of   t'171.    l-'s.    lid.,  which,  y^.■^y^  i,,  possession,  and  will  in  such  caseicccive 

when  pahl   to  me,  and   tiie   interest    thereon,  I  the  recitals  in  the  deed  as  presumptive  cvjdcii.r. 

hind    Iny^elf    to   leconvey    the  .siid   iiroi)erty,"  that  the  sale  was  duly  advertised,     lint  wli.iv 

etc.,   and   there   were  other   memoranda   show-  the  administrators  deed  conveyed  more  land  than 

ing  that  Maishall   hail   treated    the  conveyance  was  descril>ed  in  the  advertisenu'nt ,  the  variaiioe 

as   a    mortgage.      In    January,  ISti.S,  defendant,  was  hehl  fatal  to  dcfen.lanfs  title  to  sni  plus, 

having  continued  in  possession  of  the  land  ever  ll'illi.^  v.  ('ttnniliill.  .hiines.  4.s. 
since  the  execution  of  the  conveyance,  liecanie 

the  tenant  of  Marshall  under  a  lea.se  then  entered  ^^      AUeratlOll      Material  alteration  -  Bur- 

into.      .\ftc,.  the  death  ot  .1.  .1.  .Marshall,  plam-  j^„  ^^      ,^^f  _  ,,,  ^,„  ,,,.,.„,  ^^^.^^^  .|,,.^.,„,,,„„ 

tilt,  claimmg  under  his  will,  lirought  an   action  ,•                 1111    .1'      1   c  .,        i.i.aK 

c     .                                              '           f-  ,is   sui'etics  on  a  liau-liond,   the  detcncc  cluillj 

of  ejectment  against  the  defendant.  ,•    ,                      .1    ,  .1       1       1    ...      ■w;,i..ll,v 

•                     "  relied  upon  was  that  the    liond    wasMtialnl  "\ 

//(/'/,  an  colli ta Me   plea  having  lieen   pleaded,  t     ■   1     1.       .•                1    41        :      .f.  „.  ;.  .  ..v,. 

'                '                   ••si-  niaterial  alterations  made  therein  after  Us  cm- 

that     the    conveyance    from    defendant    was  a  ^.„^i„„_  ^^„,,  ^^.n,,„„j   ^,,^  j,,.^.;^^.  „f  ,,cfcnilants. 

mortgage,  and   that   the   relation   of  mortgagor  ,,y   j,,^  ^,,^^^,„.^  „f  ^1,^  ,,^^j^  ua-ntioned  for  the 

and  mortgagee  was  not  altered    liv   tlu^   fact  of  f  .1       1   f      1     ,        .   1   ,1,  .   „i,«m 

"                                             ^  aiipearance    id   the  detendants,  ami   tlic  muimi- 

tlie  lease  heiiig  made  in  l,S(iS.  .    ,-         ,         .,        ,   . 

°  tlition  01  another  date. 

J/rn-.sA„//  V.  ,S7,,/,  |{.   Iv  1).,  IHi.  jj^         ,,^^  ^^j^j^^,,^,_   ,^ni,,,„i„^,  t,,^    j,„i^,„„„t  „f 

Kitehu     .(.,  that   the    alleged    alteratiuii  luing 

4.  Administrator   purchased    real    estate  noted  in  the  attestation  clause,  the  hiudoii  was 

of  testator  and  conveyed  it  by  deed  -  Grantee  ujion  the  defendants  of  showing  that  it  was  iiiaiie 

bring.s    ejectment  -  Deed  good   against   heirs  suliseinient  to  the  execution  of  the  liond,  paiticii- 

until  set  aside— The  father  of  defendant  died  larly  in  view  of  the  fact  that  defendants  did  n»t 

intestate,  and  administration  was  taken  out  liy  call  as  a  witness  their  own  counsel  who  was  an 

Donald  .MuLeod.      Previous  to  intestate's  death  attesting  witness  to  the  bond  and  in  a  ]io»itii>H 

a  judgment    had    been   recorded    against   him,  !  to  prove  when  the  alteration,  if  any,  was  iiiade. 

which  was   revived   against   his  administrator,  |      l\r  Ritchie,  J.,    in   the  judgment  appcaW 


433                                                 DEED.  434 

ficpiii,  tlinl    llic  clause  of  tlie  Stutiiti'  ri'(|uiiiii^'  of  tlii'rin(>rt>,'i\gi',   liis  titlr  was  gdod  iiiilcss  tlio 

liail-lionilH  to  lie  tilc'tl  is  merely  dii'eetoiy,  iiml  mortgiige  wum  regiwtei-ed  pi'ior  tii  the  regisitriition 

tliat  fiiiliire  ti>  edinply  with  it  will  not  render  of  the  deed,  mid  that    in    order   to  prove  Kiieh 

liie  lioiiil  iiividi<l.  ifgistriilioii  it  was  neeessiiry  to  show  that  the 

,l/«i,  tliiil.  assuming  that  the  hond  was  altered  eertilieat(!  had  lieen  signe<l  liy  the  pi'iijier  ollieer, 

after  execnt ion  liy  making  a  eiiange  in  tlie  date  tlie  niei'e  prodLiction  of  a  (lapei-  juir/Kirfiiiii  to  lie 

ill  wliicli  thi'  defendant  was  to  appear,  sueh  an  a  t'ertilieiite  not  lieiiig  sullieient  tnider  4tli  H.  S. 

;(!tiTatiiili,   if   made  Iiefore  the  liorid  was  deliv-  c.  70s.  IS.      (Same  as  ."it  h    K.  S.,  e.  S!,  w.   IT.) 

lied  to  the  sheiilV,  and  liefore  it  eanie  into  the  Umilil  v.  .}/<•<•  riilur,  1  1!.  &  (i.,  .'t.'tit. 

iiistndy  of  tile  plaintill's.   wciidd   not  vitiati'  the  Kollowed  '\\\  Mcl.'oriiKtrk  v.  /)<  iiiii.idii,  .'{   I!.  Hi 

lidiiil  oiall'ord  a  defenee  to  the  aetion.  (i.,  71. 
Ihfti    ifttl.  V.    \\'o(,ilin,ilh  il  til.,;  I!.  \   (i.,!Hi: 

7('  L   r    144.  "■    Coloroi'tillc  to  land  under  void  deed 

.  ,          ,                    1   .      .1      w                 ..       »      f  -To  aeiniii-e  a  eolorahle  title  to  land   under  a 

.\!liiiiu(l  on  appeal  to  the  Nii]irenie  (  oiirt  ot  ' 

,  void  deed  there  must  lie  oiienaud  continued  acts 

•  aiiaila.  ,                .          ,                         <•     i      ,       i         i           i 

\Vi,ii<hr(,rlli   V.  Ilii-h-i(,  14  .S.  ('.  I!.,  7;{4.  "'  possession  oi  some  part  ot  the  I.ind   emiiraced 

within  the  deed.      Where  the  deed   relied  on  as 

7.   Itond  for    In  an  asreenient  for  llic  -'^'"-  ^■"'"''  "*'  '''•''  .-'^'*'^  ""  ""-""'liini'''. 'i^^^**- 

-ilcnf  liniils.  where  it  «  as  st  ipulated  that  when  '-lil'lion   or  designation  of  the  laud,  it  can   have 

thciaihl  w.is  surveyed,   tjic  plaintitl' shouM  give  ""   ''"'■'•'    l"'.vond    the  actual  occupation  or  im- 

tlie  defendant  a  lioud   for  a  deed,   or  a  deed  on  provcmciit.                                                          ,        ,    . 

/.'oi/i/ V.  J/;//.//, ;{  N.  .s.  I).,  •_".»•_». 

liciiig  scciii-cd  the  )iiir<'liase  money, 

//./,/.  that   the    surv..y    was    not   a  e.iudition  j^^     \Hm(!Hi\{  pipe     ffherC  a  dCt'd  Of  rOUl 

inecedent    which    would    ].ievent    the    ,,laiutltr  ,.,,;,„.  „„s  prepared  and  executed   t.i  give   title 

fniin  recovering  the  consi,[eiation  money.  ^^^  ,.     j^^^^  ,,    j,,.,,.^,    ^,,  ,.,„„,,,,,i^.   t|,^,   ,,„,,.i,.,,.,., 

.l/,„-.v,    V    //»../(,».  Cochrau.  til.  ^^,^,1    ,„,„,,,|„^.„„y    i-f,  ^^  ,;,    ,„„.,.|,a,i,,l   H,,.  r,  al 

estate,  and    liy   agreement    lietweeii   the   parties 

S.     Boundaries     Deseriptlon  Of  III  deed  ,i„,  ,ieed    to 'k.    was    recorded    simultaneously 

Sii  ItOlM)AlUKK.  „j||,„,leed   from   It.   to  11.    iV:   (;.,in  action  of 

ejectment   liv  |iurciiaser  at    slieritl's  sale  under 

!».  Ceililloale  Of atle.slalion    Where  a  eer-  iudgment  recn. id  against  R.  previously  t<>  the 

titicate  of  the  attestation  of  the  execution  of  a  ,.^,,.;„.,|i„j,  „f  (i.^,  i,),,,,,.  conveyances, 

•'"■'1^ taiued  uodate,  //,/,/     ji,.,t    |..     „,^J^  .^  |„^,,.j,    eouduit   l.ipe   to 

IhhI.  that  the  .led  was  proiierly  recorded  in  ^.,,„v,.y  title  from   the  veu.lois   to   H.  &  (J.,  and 

llie  Registry  of   Deeds  ollice,   the  words  of  the  ti,,^  ,'i„.  j,„lj..,|KMit  against    him  did  not    attach 

l:2tli  .sec.  of  c.  7!»,  R.  S.,  re.iuiring   the  date  of,  ,„  ,1^,  ,.^..ji  ^^^,,.^,,,  j,,  ,,,n,.,ti,,„. 

tlic  attestation  lieing  merely  directory.  .                 ,)„.,„   ^.    /,,/„,./,,  •_>  \\,  ji^  (•.,  400. 

Where  a  certilieil  cojiy  of  a  deed   was  oU'ered 

ill  cvi.icii.c  under  sec."  .'w  of  e.  !ni,  4th  R.  ,s.,  13.    fonslnu'tlon  of   Meaning  of  temis - 

witliiiut   ail  allidavit   showing  that   the  original  ''"'n'  terms  "  due   north"  ami   "due  south'"  in 

WHS  not  ill  the  possession,  i\;c.,  of  the  Jtarty,  liut  t'"'  description  of  a   deed,  if  not    eohtr(dled  liy 

tlicdcfciMlaiit.   wh<i  ollered   the  copy,    was  ex-  accompanying  words,  mean  north  and  .south  liy 

iiiiiiiied  as  a  witness  at   the  trial,   ami    proved  t lie  magnet,  and  not  liy  the  meridian, 

tliat  the  original  was  not  in  his  posses.sion,  »\:c..  W'iiere  a  jilan  is  attached  to  a  grant  or  deed, 

//'''/.    that    the    certitied  cojiy   was   luoperly  and  referred  t<i  in   the   usual   terms,  it   is  to  lie 

iweived.  considered  as  incorporated  with  the  instrument, 

MiKi  ir.il   V.  LdiDoiil,  2  R.  &.  ('.,  .">17.  and  nnist  he  construed  along  with  it. 

The  description  contained  in  a  grant  of  lands 

10.     ('ertitieate  of  registration -Proof  of  -  gave  one  of  the  honndaries  as  follows  :   "Theiiee 

111  an   action  for  lireiieli    of  covenant    for  title  iilong  shore   to  a  point  due   north    of  a   sniall 

contaiiieil  in  a  deed  from  defendant  to  plaintilF,  pond  v/.r  chains  from  an  old  fort."     This  j>ond 

iliejilaiutitr  put  in  evidence  a  mortgage  on  which  liy  admeasurement  shortly  Iiefore  trial  was  found 

was  iiidoised  what  purjiorted  t<i  lie  a  certilieate  to  lie  at  its  eastern  end  iiiiii-,  niid  at  its  western 

fit  registration.     The  execution  of  the  mortgage  end  ihnii  eliains  from  the  fort. 

was  proveil  hut  the  eertiticate  was  not  proved  //(/(/,  that  this  discrepancy  must  lie  rejected 

to  have  heen  signed  liy  the  proper  otfieer,  nor  as  falsa   dimoiiKlrallo,   and    the    pond    lieing  a 

Wi8  it  tendered   as   evidence    inilepcndently  of  natural   monument,   its   actual    position  should 

the  mortgage.  control  and  correct  the  description  in  the  deed. 

Htlil,  that,  as  the  plaintiff  had  had  no  notice  Airhihnhl  et  al.  v.  Morrimii,  1  N.  S.  1).,  272. 


435 


DEED. 


m 


14.    Conveyance  by  insolvent  of  all  his      17.    Dereasanre     Agreement   not   under 

proj)erty   for   henetit   of  creditors     Eti'eut  iis   seal  may  operate  as  a  defeasance  to  a  deed - 


respects    judgment    subsequently   recorded 
Injunction  to  restrain  sale  under  judgmenl- 


^  111  ejcctiiu'iit,  mIutv  the  plaintiD'  clainifil  iimlfr 
a  deed  fi'oiii  tlic  dcfciidiint  to  lii«  dccciiscd  son, 


Cloud  on  title     Hi igciM  it  Co. ,  on  the  Kitli  Miiy,  mid  it  wiiMpinved  I"  liiivi- taki'ii  the  wliolc  of  the 

ax.siKiK^d   all    tlifir    iiidi\iiliial    and    partluT.sliip  day  of   the   date  nf   tlie  ileed  to  wiilc  it,  it  w.ih 

pnipt'ily,  liiitii  leal  and   personal,  to  a  trustee,  pleaded  tliat  tlic  coiisiileiatiim  for  tlieclcrd  wasan 

for  the   general    liciielit   of  their  cnilitors,  and  agreement  entered  into  liy  the  defendant  aiiilhin 

exeuuted  at  the  same   time  a  ileed   in   trust  to  '  said    son,  ami    liearing    date   a   day    later  tliiiii 

him  of  their  lands,  whii  li  was  reeorded    I'JtIi  of  the  ileed,    liy  widi'h  his  said  son,  amoii;.'sl  otlici' 

May.      Defendants   t'liteied  a   judgment  against  things,   liound   himself  to  maintain  and  sii|i|Mii't 

Rogers  it   ( 'o.  on  the   l.'itii  of  May,  which  was  I  the  defeiulant  ami  his  wife  during  their  lifetinio, 

reeorded  the  next  clay.      On  the   ITtli   of  .May  a  otlu^rwisi'  tlu'  deed  to  lie  null  and  void,  aini  that 

writ  of  attaehinent   was   issued   against    Itogers  said  agreement  had  not  lu'eii  fulliUed. 

\'  Co.,  under  the  Iii.so'vent  Aet  of   I.ST."),  and  in  //i/d,  a  good  eijuitalile  defence, 

dune,   creditors'    a.ssignees    were    appointed,    to  Jft/il,  also,   tiiat   the  deed  and  the  agieciiiciit 

M  lioin    the    trustt'e    sulisei|!,eiitly   conveyed  the  had   a  coiitemjioraneous   ell'ei.t,    and    the  ii^rice- 

lands,  which  were  afterwards  soM  to  lertain  of  ment,    although     not     under    .st'.il,    acted    as  n 

the    plaintitl's,  who   conveyed   to  others  of  the  defca.sance  to  the  deed. 


plaiiititl's  in  trust  to  secure  the  jiurchase  money 
to  tlie  creditors'  assignees.  Defendants  |)ro- 
ceecled  to  advertise  and  sell  tlie  land  under 
execution,  and  plaintill's  sought  to  restrain  them 
liy  injunction. 


AtrUaii  V.  Afcl'ai ,  Cochiaii,  7li. 

IH.    Delivery,  presumptive  evidence  of  - 

Defendant    hoiight    of   one    l>.    iiis    ec|iiily   cif 
recleinptioii   in   a   portion   of   land   suhjeit    to  a 

//'A/,  that  as  lietwcen  the  parties  to  it  the  mortgage  to  plaint  ill' and  delivered  to  .Mr.  T.,  a 
deed  from  Rogers  ,\t  Co.  to  the  trustee  was  ;  solicitor,  a  mortgage  of  the  same  to  plaiiitill' lo 
valid,  and  that  it  was  open  to  ti:c  creditors' |  l>e  lield  as  an  escrow  until  the  lands  should  hu 
assignees,  if  they  considered  it  for  the  lieiielit  of  \  released  from  the  jilaintiir's  tirsl  mortgage.  The; 
the  estate,  to  have  tiie  jiroiicrty  conveyed  to  mortgage  made  liy  defendant  came  into  llie 
them  liy  the  trustee  ;  that  the  judgment  eredi-  possi^ssion  of  jilaint ill's  solicitor  liy  some  means, 
tor  never  ol.tained  any  lien  on  the  jiroperty  although  the  condition  as  to  tlie  release  of  ihf 
under  Ills  judgment;  Imt  that,  although  the  Imid  from  the  tirsl  mortgage  to  jiliinlil!' wa.s 
Court  would  restrain  a  judgment  creditor  from  never  fiillilled,  the  land  having  in  fait  liceii  .-iiid 
selling  property  even  under  a  judgliient  that  under  foreclosure  of  the  first  mortgage.  I'laiii- 
would  convey  no  title  to  the  purchaser,  and  tiir  lirought  action  upon  the  covenants  in  defeii- 
where  the  creditor  only  proposed  to  sell  the  daiit's  mortgage  and  U)ton  the  accompaiiyiiig 
right,  title  and  interest  of  the  judgment  ^lid.tor,    lioiid. 

yet  it  was  incumlicut  on  the  plaintill's  to  show  I'lie  Court  were  eijiially  divided  upon  the  cpies- 
that  the  cloud  on  their  title  was  cau.sed  iiy  what  i  t'""  <'f  'lo'ii^nit- 

was  apparently  a  good  title,  though  in  fact  Young,  C.  .1.,  and  Wilkins,  J.,  \vel■efor.settillJ,' 
defective,  and  that  in  the  present  eiise  defend-  a.side  the  non-suit,  hohlilig  that,  iiiider  the  almve 
ants  had  not  an  apparently  good  title,  as  the  circumstances,  there  was  such  a  iiresiinipticm  of 
Hist  deed  from  Rogers  &  Co.  appeared  to  con-  ''"'  delivery  of  the  mortgage  and  hoiid  as  to 
vey  the  title.  sustain  the  action.     McDonald  and  Sniitli.  .1.1., 

Weatlieihe,  J.,  roiirurriiitj,  limited  his  opinion    ''""'''«• 


with  reference  to  the  effect  of  the  deed  from 
Rogers  it  Co.  to  the  trustee,  to  the  ea.se  of  a 
naked  conveyance  liy  the  insolvent  for  the  liene- 
fit  of  creditors. 

Johns  il  fil.  V.  liarlitiiir  <l  til.,  ',\  R.  it  (!.,  \'.\  ; 

'JC.  L.  T.,  ()(»:i. 

1.1.  Courses,  distances,  natural  bound- 
aries aet  out  in  deed  —Order  in  which  they 
govern  — 

&«  BOIJNDAKIES,  13-15. 

10.  Deed  of  composition  —  .s'"^  ASSIGN- 
MENT-COMPOSITION-INSOLVENT ACT. 


Cniisirrll  V.  O'Coiiiinr,  •_'  R.  it  ('.,  •2Sl. 
Sii  iii/ni,  '24,  for  decision  on  re-argument. 

19.    Demand  of  possession  -Fraud   Tlie 

fact  of  the  lessor  of  |ilaiiititl'  having  failed  to 
record  his  deed  for  seventeen  years,  tugelliw' 
with  acts  and  acknowledgements  liy  him  incon- 
sistent with  his  title,  suliseipient  to  the  iiiaking 
of  the  deed  to  him,  are  evidence  for  the  jmy 
against  its  validity  as  a  linuajiili'  conveyance. 

A  defendant  in  possession,  under  an  agreement 
to  purchase  the  land  from  a  third  party,  may 
defend  his  possession  liy  showing  fr:uid  in  the 
deed  under  which  the  lessor  of  plaintitt'  cluinia. 


437  DEED.  438 

WliiTf  lln'  ilcffiulaiit  pii'M  into  poHHOHHion  of  iiinl  resiiltt'il  in  the  frontiij,'!'  on  the  Ktict-t  l^'in^j 

l.'iiiil  »H  tcMiiiit  at  will  luidrr  a  tliii'd  pai'ty,  liiit  niucii  less  than  that  icpifxcnlcil. 
u|Miii  ilic  invitation   anil   with  the   uoni.'nri'cni'i'        llilil,  that  the  nicaHiiiTnii'nts  were  men- niat- 

iif  jcssdi' of  plaintiH',  he  '\n  eiititleil  to  a  ileniaml  ter  of  description,  ami  that  tliert' was  no  lireacii  of 

of  iKwsesnioM  liefore  he  can  lie  ejected.  the  covenant  of  seisin. 

i^.^1l'l'  of  .\fi'h'iinioii  V.  Mr/)(wn/if,  .lames,  7.  AIiiidii  it  a/,  v.   Wuoilill,  ti  II.  iV  (i,,  1.1; 

()('.  I.,  r.,  I. -IT. 


I 


20.    Drsrription  In  deed    Correction  of 

error.s  in  Sherill's  deed     Partition   The  plain  22.     KltSCmcnt      I'scr  Of  U  wa}' tO  Whicll  0 

tiiriiiiiiiL.'lil  suit  for  a  jiartilion  ot  certain  lands  p.irty   has  no   ley.il    riylit,    not   Hutticient   to 

uiiilei'  the  foUowinj,'  I'irciinistani'es  :  the  dcfen-  entitle  to  diimafjes  for  an  ohHtrnction     Refor- 

(liinl  and  his  liiother  were  devisees  under  theii'  niation  of  deed     Joinder  of  parties     Damages 

fiithci's  will  :)f  a  larj^'c  liad  of  land  which  they  -  Notice    -I'laintill'  sonj,'lit  to  recover  daniaj,'es 

liilil  iis  tenants  in  conmion.     They  exccntecl  two  a),'ainsl   ilefcndant    for   olistniclin;,'   him    in  the 

ninrt;.'iiL'<'s  thereon,   which  were  outstiuiding  at  use    of   a    way    adjoininj,'    plaintiff's    jiroperty, 

till'  lime  of  action  iiroiif^dit.     A  judi,'nient  was  which  he  claiineil  to  enjoy  liy  virtue  of  user  l>y 

siii)sii|iicully  olitained  aiiaiust   the  luother,  and  himself  and  those  under  whom  he  claimed  for  a 

iin  ixiiMtion  issued,  under  wliicli  iiis  undividecl  period  of  forty  years.     Xo  user,  as  claiuu'il,  was 

liiilf   was   oll'ercd    for    sale,    and    pui'chased    hy  jrroveil  at  the  tiial,  hut  it  ajipeared  that  )ilaintifl' 

pliiiiititl',  who  riveived  a  ileed  from  the  sheiitf.  had  no  legal   riyht  to   UHe  tlie  way  as  his  own, 

After  the  execution  of  the  deed   il  was  discover-  nor  any   license!  from  the  owner  to  do  so.     It 

111  lliat  tlic  dt^scription  therein,  as  well  as  in  the  was  contended    that,   admitting,'   tliis    to   he  so, 

(iilvcrtiscuiciit  of  the  sale,   was  erroneous.     The  plaint  iff  lieiu;^   in   possession  of  the  way,  or  the 

plaintilf  .seekinj;  jiartition   tlu'  defendant   resist-  user  thereof,   could  maintain  his  action  against 

III.  iUnl  i)leaded.  1st,   that  tlie  lirothci'  was  still  defciidiint,    who   was  in    no  lietter    ])osition  for 

in  possession  adversely  to  the  plaint  ill',  and  that  interrupting  him  in  the  u.scr. 

the    latter,    therefore,    could    not    maintain    an  //«A/,   that   the  mere  user  hy  i>laintitf  of  the 

aiition  for  partition,   not  having  the  possession  ;  way  in  connnon  with  otiier  parties,  in  theah.sence 

ami '.'nil,  that  plaintiff  oiightiiot  to  have  parti-  of  any   legal    light,    would    not   enable   him    to 

tidii,  iiiasiuuih   as   ids  application,    if    granteil,  recover  damages  against  defeliilant  for  ohstriict- 

wiiiilil   1 Illy  nugatory  and  iiioj)erative,  and  iuglhcway. 

siilijeit  clcfcndaiit  to  costs.  The  learned  .ludge  who  presided  at  the  trial 

//'''/.  that  the  sheriff's  deed    gave  siillicient  was  of  o])inii>n  that  one  of  the  decils  on  wiiich 

seisin  fur  a  proceeding  of  paililion;  that  on  the  jilaintitf  relied  should  lie  reformed,  liecaiise  there 

tiiiil  llie  title  of  the  judgment  lU'litor  might  lie  w.is  evidence  that   the  grantee  had  hought  and 

iiivi'sligated  ;  tiiat  the  eirors  in  tin;  description  paid  for  the  right  of  way,   though  no  reference 

iiiiijil   lie  coriei'ted  hy  i-eference    to   the   other  to  it  was  made  in  the  deed. 

p'litiiuis  (if  the  desi.-iiption  ;  and  that   the  out-  ■  //</'/,  tliat  the  reforiuiition  could  not  he  made 

stuniliiig   mortgages  were    no    liar    to    plaintiff  without  joining  the  grantor  and  grantee  under 

olitainiiig  the  partition  sought.  tl'"  deed,  and   perha|>s  others,  and  that  evisn  if 

llie  Siii>reme  Court  of  N'ova  .Scotia  posses.seH  the  reformation  waseffected,  it  could  not  sustain 

all  tile  pnwers   with  reference  to  suits  in    par-  a  verdict  for  damages  committed  hefoie  the  deed 

titidii  with  whiciitiie  Kciuity  Court  in  Kngland  was  reformed  and  without  notice  of  any  agree- 

is  invested.  ment  as  to  the  right  of  way. 

L'<'niii  V.  Jf„sf, , -1111111,  •_'  N.  S.  ]).,  4i:i.  /;//.<  v.  Ji/n<l\  7  U.  &  (i.,  -'•J'-'; 

7C.  L.  T.,  ;«ti. 

'21.     Description  of  land  by  boundaries  -~  O"  npp'n/  lolhr  fnjn-nn,  Com-I  oi  Cunwla, 

Inaccuracy  of  measurement  ^Falsa  demons-  //,/,/,  afhrming  the  judgment  helow,   Ritchie, 

tratio      Covenant   of  seisin  -.\    h,t   of  land,  C.  .J.,  and  (Jwynne,  .1. ,.//..<,«//»;/,  that  as  plain- 

omveycl   hy  defendant   to  j)laintitr  hy  way  of  tiff  had  no  grant  or  conveyance  of  the  right  of 

""iitgage,  was  ileserihed  as  hounded  hy  lan.ls  of  way,  and  had  not   proved'an  exclusive  user,  he 

A.  aiiill',.,  whii.l,  had  heenineviously  conveyed  ,;„„l,l  not  maintain  his  action, 

t"  tlicMi,  heing  originally  parts  of  the  same  lot.  j.^,,  ,._  pj„,^.^  ,^  s.  C.  R.,  740; 

llie  iiiicH  of  the  lot  conveyed  to  plaintitt' were  -^    j^   '|'     ;j()()_ 
<lt'.scrihe(l    l,y    measurement,    hut    the    termini 

wt-'ie  stilted  irrespectively  of  the  measurement  23.     ECiUitable  defence     PlaintilT,  In  eJCCt- 

tluis,    "•_).-,()    fujjt^    „,.    „mii    jj^    oonies    to    the  ment,  claimed  title  under  a  deed  from  his  father, 

property  of  JJ."  The  measurements  were  wrong,  Defendant  claimed  under  an  unregistered  agree- 


4:{!)  DKKl).  4+0 

liu'lit  fi  r  a  Iwi'iity  yt'ai's'  lease  prinr  to  the  ileed  »ii  iinloisecl  at    tlie  lime  of  the  exeetilimi  nf  t|n. 

of  uhieh    he  alle^'il   pliiilltiH'  hail   iiotiii'.      'I'he  deeil    eaiiiiot,    even   if  ioii»i.stelil    tlieiewith,  he 

ileeil  was  I'eeoiih'd.  lead  as  if  iiieoi'ixii'ated  with  it, 

llild,  that  the  defence,  if  ^'ood,  was  an  ei|uit-  McDoinild  v.   IVo'ih,  ,'{  \.  S.  1).,  '.".IS. 

aliU'  cU'feiu'e  oidy,  and  louid  only  lie  pleaded  as 

siieh.  20.    Execution  of,  by  master  - 

/A.;/;/  V.  .s7(m/,/,  .-.  I!,  .^c  <;.,  »!tO.         //,/,/,  ,|,a,  nnder  section  •_»•.>,  of  ea|).  l(l0.4liiR, 

.,,       „  1,   1  1  <•   >   II  n  S.,  the  .ludL'e  in  Kciiiitv  was  wariaiiteil  ill  (Milcr- 

21.    Escrow     Evidence  or  delivery     De-  .  '    ,      .  ^^  '         .  i 

.      ,  ,  ,  .  ,,        ,  r  illL' that  in  ease  a  iiartv    to  a  siihiiilssioii  In  iin 

tendaiit  a'Teed  to  liliiehase  trolii  one  15.  a  lot  ot        ?•         •  ,1  i      ,  ... 

,       ,       ,.  . ,  ai'liitlalion  retiised  to  exeeuteaiU'ed  |-e(|iii>ilc  lor 

land  snii  ('el    to  a  inoitL'aL'e  of  .>(i(NH(.  executed  .         ,  ,  .  ,,.  ,  ,      ,, 

,      ,,        ',      ..  ,   .     .,'         ,  ,  canvini' the  award  mto  elli'ct,  th(^  same  sIkjuM 

liy  IS,  and  wile  to  nlaintill,  and   a   second   molt-  ,       "      '       ,,  <■    ,     ,, 

,  .  .  ,.     ,  ,  he  executed  liv  a  master  ot  the  (  ourt. 

j,'a;,'o    to   other    parties,   paying'    oil    the   .second  •  j  ii    ■   ,    o  tj     t    r'     m 

,  .  ,  III  r<   r  rn^i  r  iiiiil  I  rtiiif,  'i  K.  fi   (  .,  10; 

niortgujie  and  execiitiim  a  new  inortj;aj;e  to  the  r    i%      •■       i  -.)- 

plaintirt' in  lieu  of  the  mortjiajic  from  Ii.  and  m  ife. 

The    defen.lant-s    wife    refused    to   execute    the        .jl.      FrilUd  -    WIUTe    il    piirty    ObtilillS  ail 

proposed    mort^'a,i.'e    to    plaintili'.    and    it     was  ..Male  in  fraud  the  Couit   of  Chancery   will  not 

si;,'lie.l  and  sealed  hy  the  d.'lVmhuil   and   placeil,  ,,|,iy  ^,,,  „sj,le  the  conveyance,  l.Ut   direct  a  y.\W 

toiiether    with  a   hond    for  tlic  amount,    in  the  ,,,  "t),,.  property  to  .sitisfy   the  claim   of  parties 

hands  of  defendant's  solicitor  to  he   delivi'red  to  ,.||iii(;il,lv  interested. 

the  plaint  ill' so  soon  as   the   moit,L'ajj;e  given  l.y  i  \,/,hr, // ,  /  ,il.  v.  A'/»v,„a,(  ./'(/.,  daiia-^,  .MIS. 

I),     was    released,    and     the  new     mortguge    hy 

fen, lain  was  sigiwd  hy  his  wife.     The  .locu-      2S.    Fnuid    of   crcdllors      EvIdeiKT  of 


cIC 


nieiits  afterwards  came   into  the  possession  of  fraud     Statute   of  Elizabeth     T.    I..  ( ausid  a 

the    i)h\intilV,   hut     defemlaiit's   .solicitor   stateil  dce<l    of  certain    real   estati'    to   he    mailc  M  ii 

that    he    had   never    heen  alithori/eil  to  deliver  trustee  for  the  henelit  of  his  wife.      The  litlcdl 

them  (Pii  any  othi'i'  teiins  than  those  mintioned,  the  real  estate  was  in  his  son  \V.  I'.  L..  hy  hIhhii 

and  he  could  not  recollect    wlieii,  how  or  where  the   deed    was    made,  luit    it    was    proved    that 

plaintitl's  solicitor  had  got   them.     The  original  although  the  propiMty   was  purihased.  ami  lliu 

mortgage  niii<le  hy  r..  and   wife   was  forecloseil,  consideration    money    paiil    hy    W.    F.    L..  ulm 

ami  the  lauil  hought  in  for  less  than  the  amoiinl  was    then    a  minor,  yet   his  father  had  ciiru.l 

of  the    mortgage    hy     the    jilaintill'.    who    then  part  of  a  douhle  house  on  the  property  willi  tlif 

hrought  his  action  on  the  covenant  for  ))ayment  consent  of  his  sou,  and  that   the  ileed   fnnii  tlii' 

in   defendant's  mortgage    with   a   count   on  tin-  latter  to  the  trustee  was  maile  with  the  fatlni." 

hond.      I'laintill' on  the  trial  produced  his  docii-  concurrence.      At  the  time  of  the  eoi  vcyaiar  in 

meiits.  and  defendant  was  not  examined  to  rehul  trust.  T.  L.  was  indehted   to   the   plainlills,  an.l 

the  presumption  of  delivery.    The  learned  Judge  li'id  heen  '•  going   hehimldiaud  "  for  some  tiinr. 

direeteil  a  nonsuit.  There  was  no  fonsidcration  for  the  trust  ileeil, 

//</(/,  that  there  was  nf>  evidence  to  go  to  a  //</'/,   that    the  trust   deed   had   the  etl'ert  nf 

jury    of  a  delivery   of  the  (hicunieiits   declared  "delaying  and  hindering  "  creditors  within  tin; 

on  sufficient  to  make  them  ojicrative  as  deeds,  .Statute  of  Klizaheth  and  was  consci(Uently  void, 

they  having  heen  ilclivere<l  in  the  first   instance  />o»//  (t  al.  v.  l/mloii  .7  ri/.,  (i  I!.  i\;  <;.,  .'IS; 

as  escrows.  iW.  L.   I.,  o'.'. 

dames,  ■!.,  (//v.sv //////./.      Ifi/d,  ih-.n   the  fact  of  ,„       „         ,    ,      ^                               „   ,, 

,,,,,,..,                     ,  ,,  2J>.    Fraudulent  conveyance     Evidence 

the  documents  heiii''    in    the    iiossession  ot  the  ...           ,            .     ,  ,       , 
jilaintitf  was  presumptive  jiroof  of  their  delivery 


Defendant,   heing   indehted    to   variiais   ]iaitus, 
iiid  fearing  lest  his  creditors  should  resort  ti)  his 


as  deeds,  and  the  hurdeii  was  upon  ileteudant  to  ,  i      n  i  ■ 

,  ,  ,         ,     ,  1,1.  1  iJi'onerty   to  ohtain  i)avment,  conveyeil   all  His 

show    that    thev    had    never   heen    delivered   as    ,'       ,       "^ ,  .  ,    '    •,         ,   „      ,    "         ,   i      » 


such.  ,  .        ,  1   1  .     <.        1 

Chi.-cw.//  v.  (rCoiiiior,  I  K.  *  «;.,  MX    t'"-'  ''•'""^  t""«  ''^'  "'"'  ''""  f"""'y  ^vfie  to  c 


land  to   his  sou,  the  other  defendant,  while  at 

on- 

tinuc  to  enjoy  the  henetit  of  it.     In  their  aii.'Wtr 

25.     Estoppel  — Ambiguity  — Memorandum  the  defendants  alleged  a  deht  due  hy  the  father 

indoraed  on  deed- -In  an  aetion  to  recover  con-  to  the  son,  and  an  agreement  hy  the  latter  to 

sideration  money  expressed  in  a  deed  if  estoppel  support  hits  father,  hut  the   defendants  nave  no 

is  relied  ujion,  it  must  ho  jilcaded.  evidence. 

Where    a    ileed    is    free   from   amhigiiitj'   it  /A /rf,  that  the  answer  of  the  defendants  coiiM 

neither  ilemands  nor  will  admit  extrinsic  aid  to  not  he  used  as  evidence  at  the  hearing,  and  that 

construction,  hut  must  sjjeak  for  itself.  plaintiH',  as  creditor  of  the  father,  had  a  right 

A  memorandum    indorsed   uj)on  a  deed,  hnt  to  a  decree  to  set  aside  the  deed, 

not  distinctly  proved  or   admitted  to  have  been  Xtuxomh  y.  Simmomln  tt  at.,  R.  K.  l).)-iS4. 


441 


DEED. 


442 


;iO.   Friiiidiilent   iMMiveynnce     Evidence 

of  fraud  Findingn  of  jury  W.  .1.  ('.,  luinj,' 
iiiililiicil  111  ]iliuiititl',  WHS  Hiicil  Novi'iiilicr,  iStiT, 
mill  jiiil;,'iMi'iii  iccdviTfcl  for  .'r> "J! •.'(.. Vi  a  ilncket  of 
wiiicli  was  regiMteroil  ()utol)t'r,  Istis.  Kxeuiitioii 
uas  isMicil  on  tlu-  jiul^fincnt,  iiiiil  the  liuiil  of  tliu 
jiiiiil  W.  .1.  ( '.  «as  liouglil  in  liy  pluintitf  nniliT 
SliiTilVn  sale.  In  Miiy,  IStiti,  W.  .I.C,  1  icing  so 
inili'litcil,  I'linvcyt'il  iill  iiis  ival  I'stute  (foinnl  to 
Imvf  lii'iMi  llii'ii  wortli  8.S.")(l),  to  liiu  son,  tin; 
jiiiscnt  ilifiiiiiaiit.  tlu'  lonsiiiciiition  iiiinu'il  in 
tiic  iliTil  lii'ing  s;UM»,  anil  lliis  suit  was  liiouglif 
tii.xot  asiiji'  till'  lU't'il  as  frainlnicnt.  Tliu  jiny 
fipiiiiil  lliiit  \\'..l.  ('.  was  in  possi'ssion  of  tlielaml 
111  lliL'  liiiif  lit'  gave  the  lU-i-il  to  dcfi'iidant,  ami 
iiii.timu'd  so  foi'  foul'  years  afterwuids,  to  May, 
ISjii;  that  lie  was  in  ])ossi'ssion  at  tlif  tinii'  of  tiu^ 
Slu'i'iirssale  to)ili<.intill',  and  at  tliat  time  resiik'd 
in  tliL'  old  honii'stead;  that  defendant  was  in 
Jlll^^(■^^^illn.  exilusive  of  \V.  .1.  t'.,  from  May 
l.sT'i.  iimUr  title  of  the  conveyance  from  \\ .  .1. 
('. :  that  theie  was  no  money  paid  liy  the  defen- 
dant at  the  time  the  deed  was  given,  except  two 
Kfty  dollar  notes  of  hand  ;  that  defendant  knew 
at  the  time  he  got  the  deed,  that  \V.  J.  V.  was 
inilt'lited  to  ])Iaintill';  ami  tliat  the  deed  was 
given  liy  W.  .1.  C,  and  received  liy  the  defen- 
ilant,  til  prevent  or  ini]iede  jilaintitf  and  other 
eriilitnrs  iif  \V.  .1.  (".  in  olitaining  payment  of 
their  ilelits. 

JIil'l.  that  under  the  tindings  of  the  jury, 
wliieli  the  Court  considered  warranted  by  the 
evidence,  the  deed  from  W.  d.  (".  to  defendant 
must  he  set  aside  as  fraudulent. 

Corh>//  V.  Ci>ih,ft,  It.  K.  I).,  40. 

31.   Fraudulent  conre)  nnec     Findings 

Contemplation  of  insolveney  —  Injunction — 
One  R.  '1".  Muir,  who  died  4th  Septendier,  1 S7 1 ,  l>y 
his  will,  lieiiueathed  his  liusiness,  including  stock 
ui  trade,  iVc,  to  A.  !•'.  Muir,  on  certain  condi- 
tions, among  which  was  the  payment  or  guaran- 
tet'ing  til  defendants,  as  trustees  for  his  two 
sisters,  the  sum  of  !S4,(KM»  each,  for  which  they 
Were  to  take  security  ui)on  the  stock  in  trade  if 
tlity  saw  necessary,  within  a  eonvenient  time 
after  the  deatli  of  the  testator;  and  it  was 
nisi)  |iriiviile<l  l>y  the  will  that  a  sum  of  !«2,<H)0 
sliiinid  he  i)aid  or  .secured  to  the  defeiidant.s  per- 
sonally. A.  F.  Muir  continued  t.ading,  collect- 
uig  the  debts  of  the  concern,  and  disposing  of 
the  stock,  the  money  jiayaldc  to  the  defendants 
on  their  own  account  aiul  as  trustees  )>eing  left 
in  the  husiness  without  security  being  taken. 
On  the  5th  April,  1875,  A.  ¥.  Muir  conveyed 
his  stock,  then  worth  about  .^60,(MK»,  to  the  de- 
fendants as  security  for  the  payment  of  the  said 
sums,  together  with  a  further  sum  alleged  to  be 
due  to  one  of  the  defendants  from  the  estate  of 


K.  'I'.  Muir,  and  on  the  I5tli  of  duiu',  1.S75, 
tlefendants  took  possesidon  of  the  stock  and 
proceeded  to  stdl  it,  shortly  after  which,  on  the 
.'{((til  .lime,  A.  V,  .Muir  made  an  ;issignnient 
under  the  Insolvent  .Act.  I'laintitV,  as  assignee, 
brought  this  action  to  set  aside  thi' conveyance 
to  defendants,  alleging  in  his  wiit  that  the  con- 
veyance had  been  made  to  give  the  defendants 
a  preference  over  other  creditors,  and  that  the 
defendants  knew,  or  had  reasonable  cause  to 
know  and  believe,  that  A.  V.  .Muir  was  unable 
to  meet  his  liabilities.  Defendants,  in  their 
answer,  ilenied  that  A.  K.  .Miiir  was  insolvt'iit 
when  he  made  the  conveyance  to  them,  and 
asserted  that  when  they  received  it  they  ludieved 
him  to  be  sidveiit.  They  ilenied  all  frauil  on 
their  part  in  the  transaction,  and  asserted  that 
they  deinaiided  the  security  in  pursiianee  of  the 
directions  of  the  w  ill  of  1!.  T.  Muir. 

The  jury  found  that,  at  the  time  of  the  con- 
veyance being  inaile,  .\.  \'\  .Muir  was  embarrassed 
and  unable  to  meet  his  engagements;  that  de- 
fendants <lid  not  then  know,  and  had  not  reason- 
able cause  to  know,  that  such  inability  existed  ; 
that  the  conveyance  was  not  made  by  A.  1'".  .Muir 
with  intent  fraudulently  to  diday  or  impede  his 
cicditors,  and  that  the  original  stoidi  haii  been 
all  di.sposed  of,  except  al)out  ii^UMX)  worth  of 
machinery. 

//'/'/,  that  under  the  tindings  of  the  jury  the 
conveyance  must  .stand,  and  that  it  was  not 
competent  for  the  iilaintitl' to  contend  that,  even 
in  the  absence  of  knowledge  on  the  part  of  the 
defendants,  the  conveyance  should  be  set  aside, 
as  made  by  A.  V.  Muir  in  coiitein|)lation  of  in- 
solvency, and  in  violation  of  section  S'J  of  Insol- 
vent At:t,  that  being  a  ditferent  cause  of  action 
from  any  set  out  in  the  writ. 

I'laintitl' having  obtained  an  injunction  to  res- 
train the  defendants  from  disposing  of  the  stock, 
the  t'ourt  directed  that  the  amount  for  which 
defendants  chiimed  a  lien,  with  i^KiOfor  ])o.ssible 
costs,  should  be  deposited  with  the  Iteceiver- 
(leneral  to  respond  the  judgment,  if  favorable 
to  the  defendant.!,  in  which  case  the  injunction 
shoiihl  eontinuc,  otherwise  to  be  dissolved. 

Fom-'l  V.  Mnii-iiitl.,  R.  K.  1).,  .")7. 

32.     Fraudulent  conveyance— Want  of 

consideration — In  1844  Alexander,  the  father 
of  Hugh  and  Archibald,  c<mveyed  certain 
premises  to  Hugh  upon  the  consideration 
of  a  bond  for  his  maintenance  given  by  Hugh. 
All  three  continued  to  live  upon  and  work 
the  premises  together.  In  January  1863,  the 
plaintiff  issued  a  writ  against  Hugh,  which 
ripened  into  a  judgment  in  October,  1804. 
In'  June,  1864,  Hugh  conveyed  to  Archibald, 
the  consideration  being  stated   at  the  trial  to 


44.'} 


DEED. 


444 


be  a  voildil  iiyii'fiiiciit  that  Ai'lIijImM  kIiouIiI 
aHHUiiic  till'  l)unlt!ii  (if  inaiiilaining  lliu  fatlicr  aH 
Hugli  «i>liril  to  go  away.  In  IStUl,  itliiiiititl' 
olitaiiK'il  a  jiiil^'riiuiit  agaiiiNt  AlexaniltT  tlio 
fatliiT,  and  in  IMdltcxcciitions  woro  is.sucil  upon 
liolh  juiljiniunis.  'I'lio  landx  wt'iu  luviud  upon  liy 
tliu  Nlii'i'itI'  and  sold  tliui'i'under  and  a  deeil 
I'xci'utcd  liy  liini  to  tin-  plaintitl',  ulio  tlu'ieupon 
lii-ouglit  an  action  ot  eji'i'tiru'iit  against  tin; 
father  and  two  ;  muh,  and  verdiit  was  found  for 
the  defendants.  I'pim  I'uU:  iiini  for  a  new  tiial, 
l/i/il,  that  Ilugii's  titU',  whatever  it  niiglit 
have  been  wortli  at  its  ineeption,  liad  heeonie 
valid  in  IMIKi,  the  time  of  tiie  plainlill's  judg- 
ment against  tiie  fathei',  tint  theconveyanee  from 
Hugh  to  Arehiliald  having  lieen  executed  .sul)se- 
quent  to  the  seiviee  of  plaintill'.s  writ  ui)on  the 
former,  and  while  the  action  was  pending,  and 
not  being  supported  liy  any  valuable  consider- 
ation, must  be  deemed  to  be  a  fraud  on  Hugh's 
creditors  and  void  under  l.'J  Kli/.,  c.  5,  and  that 
tlierefore  the  nde  iiiil  shouhl  be  n\ade  absolute. 
Smith  V.  MiLiau  it  uL,  3  X.  S.  D.,  109. 


33.    Fraudulent  Conveyance  -Assignment 

under  Insolvent  Debtor's  Act-  An  action  was 
brought  against  one  of  the  defendants,  the  son 
of  tiie  other  ilcfcndant,  for  breach  of  promise  of 
marriage,  in  which  a  judgment  was  recovered 
and  reeorde<l.  Previously  to  the  commencement 
of  such  action,  the  son  had  paid  for  and  obtained  a 
deedof  certain  land  which  was  not  recorded,  and 
it  was  illcgedin  jdaintiirs  writ  or  bill  that  fearing 
an  adverse  judgment  in  the  breach  of  piomisesuit, 
the  son  haddestioyed  tlieold  deed  and  procured 
u  deed  of  the  jjroperty  to  be  made  to  his  father 
whicli  was  ante-dated  so  as  to  nuike  it  appear 
to  have  been  delivered  before  the  commencement 
of  the  action  for  breach  of  promise,  althougli, 
in  fact,  it  was  made  afterwards.  On  being 
imprisoned  under  the  jiulgment  in  the  breach  of 
promise  suit,  defendant,  the  son,  was  set  at 
liberty  on  condition  of  his  assigning  his  interest 
in  the  property  to  the  plaintili'  in  this  action  as 
trustee  for  the  plaintiff  in  the  breach  of 
proniise  suit,  which  he  did.  A  suit  in  Equity 
was  then  brought,  in  which  plaintiff  prayed 
that  the  defendant,  the  father,  should  be  decreed 
to  convey  the  land  in  (question  to  him  wul 
account  for  the  profits.  Tlie  Equity  Judge, 
considering  that  the  destruction  of  the  old  deed 
and  substitution  of  the  new  one  was  a  contriv- 
ance between  the  father  and  son,  granted  the 
relief  prayed  for,  and  the  full  Court  having 
arrived  at  the  same  conclusion  on  the  facts, 
affirmed  the  decision  of  the  Judge  in  Equity. 
Graham  v.  Chinholvi  e<  a/.,  2  R.  &  G.,  33  ; 

1  C.  L.  T.,  191. 


34.  Fraudulent  deed  - 13  Eliz.,  C.  3  - 

Replevin  -I'laintitl's  father  leased  certain  iniii' 
ing  aieas,  witli  crushing  mill  and  crusher,  td.l, 
k  T.  Watson,  in  Xovember,  lS7r>,  with  proviso 
for  re-entry  on  certain  conditions.  In  Decuiii- 
ber,  liSTd,  he  eonveyeil  all  his  estate,  inchnliiig 
all  his  interest  in  the  lease  and  the  lease  itsilf 
to  |ilainti(r  in  trust  for  certain  purposes  in  the 
deed  mentioned,  and  the  trustee  took  possussiim 
in  February,  1879,  for  non-payment  of  runt 
overdue.  In  October,  1S7S,  a  distress  warrant 
for  poor  and  county  rat  js  was  issued  against  the 
lessor,  under  which  the  property  in  quest jcm 
was  sold  aiul  came  into  possession  of  defendant, 
from  whom  it  was  replevied  by  jilaintitl'.  Oli- 
jection  was  taken  to  the  want  of  rcgistratiun 
of  the  lease,  and  that  the  trust  deed  was 
'  not  filed,  but  only  recorded.  There  was  no 
,  legal  proof  of  the  assessment,  of  .he  posting  or 
service  of  notice,  or  of  the  signature  or  oIKciui 
character  of  the  ofKcer  who  issued  tiie  warrant, 
all  of  which  were  put  in  issue  by  the  iileailiiigs, 
but  evidence  was  given  by  defendant  of  coiiver- 
sations  with  plaintitl's  fallier  after  he  had  parted 
with  his  legal  interest  in  tlie  property. 

Held,  that  the  statute  13  Elizabetli  did  not 
refer  to  the  case  at  all,  as  it  niaile  the  convey- 
ances to  which  it  referred  void  only  as  against 
certain  classes  of  persons,  none  of  which  conlil 
cover    the    case   of    the    defendant,    and  tlmt 
the    conveyance    could     be    avoided    at    com- 
mon   law    only    as    against   one    who    had  a 
former  right,  title  or  interest,  which  defeiulant 
had  not;  that  the  non -registration  of  the  lease  did 
I  not  affect  the  plaintiff's  position  at  all,  or  if  fit 
I  all,  it  only  enlarged  his  interest ;   that  the  trust 
'■  deed  did  not  require  to  be  filed,  but  only  re- 
I  corded,   and  that   the   evidence    of    defendant 
'  referred  to  was  inadmissible,  not  being  part  of 
the  rcn  (/I'stw. 

Wallace  v.  Laidlaw,  2  R.  &  G.,  420. 

35.  Infant— Deed  by,  voidable  -  Statute  of 

Limitations— R.  M.,  in  18.35,  conveyed  a  portion 
of  his  land  to  his  sons,  W.  and  K.,  and  about 
the  same  time  allowed  them  to  enter  into  pos- 
session as  tenants  at  will  of  the  balance  of  his 
property,  ini'luding  the  house  in  which  lie 
I  had  resided.  R.  M.  died  in  1844,  leaving 
I  several  children,  of  whom  the  plaintiff  was  the 
youngest.  In  1847  the  rest  of  the  heirs,  includ- 
ing plaintiff,  who  was  then  under  age,  conveyed 
to  W.  &  K.  oil  their  interest  in  the  property. 
In  1870  the  plaintiflf  brought  suit  for  a  portion 
of  the  lands  in  question,  alleging  that  the  deed 
being  executed  during  her  minority  was  abso- 
lutely void  and  of  no  effect. 

Held,  that  although  the  possession  of  W.  cfe 


445 


DEED. 


44G 


K.  imiNt  lie  (l"i'iiu'(l  to  lie  advt'iHe  from  tlic  year 
|H47  »li('ii  the  liL'ii'H  uniti'il  in  f{iviiig  thcni  n 
il.iil,  iiiid  lliul  tliorufon.'  |ilaiiititt"H  right  was 
liiuiiil  on  timt  gi'oiinil,  yet  tiiat  uiuler  nee.  it,  of 
•JO  \'ii'.,  riip.  I'J,  liaviiig  iii'oiight  her  action  in 
1H70,  ami  tlierefore  witiiin  tive  years  from  18(l((, 
slit'  wan  entitled  to  leeover. 

M'-Kliiiioii  it  al.  V.  Itroilii,  3  X.  S.  I).,  410. 

3(1.   Iiinint   Deed  to    Adverse  possession 

—  DelVnclaiit  agreed  in  IS(I'2  to  exeliuiigo  land 
with  .1.  I.,  and  \V.  L.  He  deeded  certain  lands 
to  tlieiii,  Imt  iii.stead  of  takini;  a  deed  from  them 
t(i  liiiiiself,  he  had  the  deed  made  out  in  favor  of 
lii.s  infant  son,  H.  F.  J.  This  deed  was  recorded 
on  the  day  of  its  execiitifin,  though  the  grantee, 
K.  F.  .1.,  «as  not  present  at  the  execution,  and 
there  was  no  evidence  that  it  was  ever  delivered 
t(i  liiiii  ]icrsonull)'.  Defendant  went  into  pos- 
Sfs.-iidn  at  onco,  and  continued  in  po.ssession 
initil  action  lirought.  R.  F.  J.  shortly  after 
coming  of  age,  in  187'>,  executed  a  deed  of  the 
land  to  plaintitf,  who,  after  making  demand  of 
pd.sscssiiiM.hroiight  an  action  of  ejectment  uguinst 
(k-l'ciiilaiit. 

Ill  III,  that  the  deed  to  R.  F.  J.  conveyed 
title  to  liiiii,  and  that  the  non-suit  ordered  on 
the  giiiund  that  R.  F.  J.  was  out  of  po.-isession 
wlieii  he  deeded  the  land,  defen(hint  holding 
ailvcr.sely,  could  not  lie  su.stained.  Wilkins,  J., 
di^xinliiiij. 

(•'amnion  v.  Joibry,  2  R.  k  C,  314. 

Questioned  in  MfDoumll  at  al.  v.  McManter, 
3R.  &(;.,37'2.     See  infra,  3Q.  \ 

37.  Livery  not  necessary  —  Delivery  of 

deed  gives  constructive  posseaaion  — Actual 
livery  is  not  necessary  in  this  Province.  Where 
there  is  no  adverse  possession  against  the  vendor 
at  time  of  sale,  the  delivery  of  the  deed  carries 
with  it  constructive  possession  of  the  land  to 
the  purchaser. 

SImpxou  V.  Foote,  2  Thorn.,  240. 

38.  lost,  proof  of  —  Wbere  a  deed  bas 

been  traced  into  the  actual  possession  of  a  party, 
it  is  necessary  to  call  him  to  account  for  it  before 
secondary  evidence  can  be  let  in ;  but  where 
douht  exists  as  to  whether  it  was  actually  left 
with  a  party  who  has  no  interest  in  it,  held 
sutlicient  to  prove  a  search  amongst  the  papers 
of  the  person  who  it  was  presumed  last  had  ' 
possession  of  it. 

Barto  V.  Morris,  Cochran,  90. 

39.  Missing  deed-  Secondary  evidence  of 

—The  question  on  an  action  of  ejectment  turned 
on  the  execution  of  a  deed  from  one  H.  M.  to 
R.  M.    Plaintifif  produced  no  other  evidence  to 


the  jury  than  the  certitied  copy  of  the  Registry, 
j  under  Revised  Statutes,  cap,  1)U,  sec,  33  ;  and 
the  grantee  swore  that  he  had  never  seen  the 
deed  fi'om  his  father.  The  iluilge  who  tried  the 
cause  left  it  to  the  jury  to  find,  from  the  regis- 
try na  /irlma  J'avit  evidence,  that  the  deed  had 
been  executed. 

//'/(/,   that  this  was  a  misdirection,  and  that 

there  was   no  evidence  of  the  delivery  of  the 

deed.      Oamiiioii   v.   Joilny,  '2  R.    &  C,  314, 

(juestioned. 

MrDoiuiill  tt  al.  V.  MiMastir,  3  R.  &  <!.,  372. 

10.    Missing  deed    Evidence  of  execution 

and  delivery  of  -Certiticate  of  Registrar  of 
deeds— Affidavit  ofsearch  — Estoppel  — Action 
of  ejectuieiit.  'I'he  action  was  twice  tried. 
I'laintitl's,  executors  of  original  plaintitt',  claimed 
title  under  a  deed  dated  the  IMth  June,  KSr)tJ, 
which  Hugh  McMaster,  deceased,  the  former 
owner  of  the  land  in  (|Uestion,  was  alleged  to 
have  executed,  convejing  said  land  to  his  son, 
Ronald  Mc.Master  vlio,  onthe  l!)th  April,  18(i9, 
mortgaged  to  tli.  original  plaintiff.  This  mort- 
gage having  been  foreclosed,  the  land  was  pur- 
chased by  the  mortgagee  at  Sheriff's  sale.  At 
the  trial  plaintiff's  counsel  tendered  a  copy  of 
the  deed  of  the  18th  June,  18")0,  certitied  to  be 
a  true  copy  by  the  Registrar  of  Deeds,  and  ac- 
companied by  an  aliidavit  of  one  of  the  plaintiffs 
to  the  etfeet ;  "Tiiat  tlie  original  deed,  of  which 
the  paper  writing  hereunto  annexed,  nuirkcd  A, 
is  a  cojiy,  certified  under  the  hand  of  the  late 
Registrar  of  Deeds,  in  and  for  the  said  County 
of  Inverness,  is  not  in  my  or  my  co-plaintiff 's 
possession,  or  under  our  control  ;  and  I  further 
say  that  we  have  inquired  for,  and  been  unable 
to  jirocure,  the  same." 

Donald  McMaster,  a  son  of  the  original  owner, 
and  one  of  the  witnesses  to  the  deed,  gave  the 
following  evidence : — 

"  I  went  to  the  Registry  of  Deeds  ofKce  and 
proved  the  deed  from  my  father,  Hugh  Mc- 
Master, to  Ronald  McMaster,  his  son.  It  was 
registered  17th  June,  1856.  I  took  the  deed  to 
the  Registry  Office,  and  left  it  there. 
I  am  not  aware  of  Ronald's  knowledge  of  the 
deed  from  my  father." 

Ronald  swore  that  he  never  saw  the  deed,  and 
never  heard  of  it  until  a  few  years  before  the 
first  trial,  in  October,  1880. 

It  was  agreed  that  plaintiff  should  become 
non-suited,  with  leave  to  move  to  set  the  non- 
suit aside,  and  in  case  the  Court  should  think 
the  non-suit  wrong,  the  Court  to  enter  a  verdict 
for  plaintiff. 

The  Supreme  Court  of  Nova  Scotia  (McDon- 
ald, C.  J.,  and  Rigby,  Smith  and  Weatherbe, 
JJ.)  were  divided— Rigby  and  Weatherbe,  JJ., 


4+7 


DEED. 


448 


being  of  opiiiinu  that  the  presuiui)tion  wii.s  tliiit 
Hugh  .McMiistei',  the  original  owner,  iiaviiig 
signed  tlie  ileed,  delivered  it  to  Donald  to  take 
to  the  Registry  Office  to  he  proved  and  regis- 
tered ;  that  by  this  registration  he  gave  notice 
to  all  the  world  that  he  had  eouveyed  the  land 
to  Ronald,  and  tliat  tliere  was  evidence  for  a 
jm'y  ;  that  hy  his  coiuluct  in  relation  to  the  con- 
veyance to  Ronald  he  had  induced  the  original 
plaintirt'  to  accept  the  mortgage  from  Ronald, 
believing  tlie  title  to  lie  vested  in  Ronald,  by 
virtue  of  the  deed.  Therefore  the  defendant, 
wlio  also  claimed  through  his  father,  was  estoj)- 
ped  from  denying  the  tlue  execution  of  the  deed. 

McDonald,  C.  .).,  and  JSniith,  J.,  were  of 
opinion  there  was  not  sufficient  evidence  of  the 
i;xecution  of  the  deed. 

Jli'JJoiiahl  it  al.  V.  JltJla-'iter  if  at., 

5  R.   &  (i.,  438. 

On  appeal  to  //it  Siijirime  Convl  of  Canada, 

Ihld,  tliat  there  was  sufficient  evidence  to 
establish  the  due  execution  and  delivery  of  the 
deed  to  Ronald.  The  copy  having  been  received 
in  evidence  without  objection,  it  was  too  late  to 
object  to  its  admissibility. 

Strong,  J.,  ihdnlauU.  Appeal  allowed  with 
costs,  and  serdict  directed  to  be  entered  for 
plaintiff. 

McDonM  v.  McMasler,  ..'..'ml  Junr,  7AS'.7, 

('as.  Digest,  141. 

41.  Mistake  -  KectiHcation    of   deed  — 

I'laintift'  instructed  his  broliier  to  purchase 
certain  land  for  him,  the  deed  to  be  taken  in 
the  brotlier's  name,  but  in  trust  for  the  plaintifi' 
for  life,  after  his  death  for  his  childien,  and  in 
case  of  his  death  and  tlie  death  of  his  children, 
in  trust  for  his  wife.  The  land  was  purchased 
and  plaintiff  paid  the  amount  of  the  piircliase 
money,  but  the  deed  was  made  out  to  the 
brother  in  trust  to  pay  tlie  proceeils  to  plaiiititl's 
son,  then  living,  and  in  tlie  event  of  his  death 
to  other  sons,  etc.  Plaintiff  went  into  posses- 
sion and  lived  on  the  premises  without  any 
intimation  that  he  had  not  a  right  to  do  so,  and 
di<l  not  discover  the  omission  of  the  trust  for  his 
own  life  till  after  the  death  of  his  brother,  being 
an  illiterate  man  and  not  having  ever  learned 
the  contents  of  the  deed.  His  evidence  as  to 
tile  intention  was  uncorroborated  and  uncontra- 
dicted. 

Held,  that  the  plaintiff  was  entitled  to  have 
the  deed  rectified. 

Hot/an  V.  Iloi/an,  R.  E.  U.,  334. 

42.  Mortgagee— Deed  made  by  with  con> 

sent  of  morgagor,  estops  mortgagor  from 
redeeming — Plaintiff's  father  mortgaged  a  lot 
of  land  to  defendant,  and  subsequently  defend- 


ant, with  tlie  consent  ami  l)y  the  diiectinn  df 
the  fatlier  conveyed  the  lot  in  fee  simple  tu 
X.  .M.  After  tlie  death  of  the  father,  iilaimilV 
))roiiglit  suit,  under  liis  will,  against  defeniluin 
for  the  land. 

Ifilil,  that  the  father,  by  consenting  to  tlu' 
conveyance  of  the  land  in  fee  simple  to  X.  .M. 
was  estopiied  from  ledeeming  it,  and  as  pliiiiititi' 
was  in  no  better  jiosition  than  her  fatlicr,  jmlg. 
nicnt  should  be  for  defendant. 

Ml- Li  oil  V.  Cantjihi//,  3  X.  S.  1).,  4.11). 

43.  Party  out  of  possession  conveys  no 

title — Where  the  lessor  of  the  plaintitl'was  oiu 
of  [lossession  at  the  time  the  deed  was  given  Ity 
him,  the  land  lieiug  held  adversely  by  aiiiitiim' 
person, 

//i/d,  that  the  deed  conveyed  no  title. 

Maiji^tti  If  al.  V.  Huhirf,  '2  'I'lioin.,  4'3). 

44.  Plan  annexed  to -Particulars  in,  re 

garded  as  set  out  in  deed— Effect  of  possession 
as  against  party  not  showing  title— Wlicii  a 
plan  is  referred  to  in  a  deed  as  part  of  tlie  des- 
cription, all  the  particuhirs  appearing  on  that 
j)lan  are  to  be  regarded  as  if  they  had  liciii 
fully  set  out  in  the  deed.  In  uii  action  iiw 
trespass  to  lands,  plaintiff  relied  on  a  grant  fnuii 
the  Crown  to  15.,  a  conveyance  from  l>.  to  M., 
and  a  conveyance  from  M.  to  the  jilaiiitill'.  The 
gi'ant  to  B.,  read  in  connection  with  a  pluii 
annexed  thereto,  covered  the  h)cus,  but  in  the 
subsefjuent  conveyances  no  mention  of  the  plan 
was  made,  although  the  description  was  tho 
same  as  that  in  the  grant.  I'laiutitl's  cviiUnce 
showed  that  .M.,  to  whom  the  property  was  con- 
veyed liy  the  original  grantee,  erected  a  fjiit'o 
including  the  locus,  and  ciillivatcil  the  hind, 
and  that  the  po.ssession  iiad  lieen  continued  hy 
plaintiff  and  his  tenants  down  to  the  coiiinicnee- 
nient  of  the  action. 

Jfi/d,  that  the  evidence  was  sutiicieiit  as 
against  the  defendants,  who  showed  no  title. 

McDonald,  C  J.,  dini^nnfi'mj. 
Futlirfon  v.  Jinindi'ii'  it  al  ,  '.'O  X.  S,  R., 

(S  H.  &  <;.),  182;  8('.  L.  T.,  .S7S. 

45.  Presumption  arising  from  date  of- 

Evidence  to  rebut  presumption  —  Defendant 
distrained,  on  the  "i.^th  March,  for  a  (inarter':! 
rent  due  by  plaintiff,  w'lio  brought  an  action  of 
replevin,  and  put  in  evidence  a  ileed  from  de- 
fendant to  one  Walsh,  conveying  away  the 
reversion,  dated  March  1st.  The  grantee  in 
ihf  deed,  called  by  plaintiff,  proved  that  the 
deed  was  not  delivered  for  some  days,  perhaps 
a  fortnight  or  a  month,  after  the  date  it  bore; 
and  defendant  said  she  did  not  know  on  what 
date  she  signed  the  deed  ;   that   it   was  some 


449 


DEED. 


450 


weeks  after  the  1st  of  Marcli ;  tliat  the  grantee 
hiid  mtt  on  tliu  i.'Hli  Marcli  got  posiiessiun,  anil 
the  |)lnintit!' was  still  her  tenant. 

Ill  Id,  that  the  presumption  arising  from  the 
(lute  of  tlie  ileeil  l.ad  been  rebutted,  and  ii  was 
tlie  ihity  of  the  plaintiff  to  establish  the  fact  of 
the  delivery  of  the  deed  before  the  date  of  the 
distress,  to  the  satisfaction  of  the  Judge,  who 
tried  the  cause  without  a  jury,  and  that  as  he 
had  not  done  so,  the  verdict  for  defendant  could 
not  he  disturlieil. 

Weatherbe,  .J.,  doulitiiiij. 

Miaijhhr  v.  Colt  man,  1  R.  &  G.,  271. 

4G.  Priority  of,  as  affected  by  notice  — 

One  Hazel,  on  the  19th  Au;.'ust,  1809,  executed 
ii  deed  to  plaintiff  of  a  certain  lot  of  laud,  and, 
oil  the  24tli,  i'.nother  deed  of  a  second  lot,  both 
of  which  deeds  plaintiff  had  recorded  on  the 
•i'ltii.  Oil  the  3rd  May  previous,  Hazel  had 
given  a  deed  of  the  same  two  lots  to  defendant, 
which,  however,  was  not  recorded  by  him  until 
after  jdaintifl's  deeds.  Plaintiff  had  notice  of 
this  deed  when  he  received  his  second  deed,  but 
not  when  he  received  the  first.  The  jury  found 
tliiit  the  deeds  to  plaintiff  were  bona  Jide  and 
for  good  consideration  ;  whereas  the  deed  to 
defendant  was  made  for  the  purpose  of  defraud- 
ing Hazel's  creditors. 

Held,  tliat  under  these  findings  plaintiff  must 
succeed,  his  knowledge  of  the  existence  of  defen- 
dant's deed  at  the  time  he  received  his  second 
deed  having  no  effect  upon  his  title,  as  that 
deed  was  fraudulent. 

FiMiiKj  v.  Acktrly,  2  N.  S.  D.,  526. 


4t.  Proceedings  to  set  conveyance  aside 

as  made  to  defeat,  defraud  and  delay  credi- 
tors—Consideration —  Bona  /(/(.-(—Absence  of 
fraudulent  intent— J.  S.  was  induced  to  sign 
an  acconunodation  note  in  favor  of  plaintiffs  on 
plaintilfs'  undertaking  that  he  would  never  be 
called  upon  for  payment.  Two  days  later,  in 
fultilinent  of  an  understanding  which  had  ex- 
isted long  previously,  J.  S.  executed  a  deed  of 
real  estate,  being  the  only  property  he  possessed, 
to  liis  two  daughters,  defendants,  "  in  consider- 
ation of  natural  love  and  affection,  and  as  a 
provision  for  the  maintenance  of  himself  and 
wife,  and  in  further  consideration  of  one  dollar. " 
At  the  time  of  the  execution  of  the  deed,  as  an 
additional  consideration,  defendants  agreed  to 
pay,  and  subsequently  did  pay,  a  debt  which  J. 
8.  owed  to  one  B.  Plaintiffs  having  recovered 
a  judgment  against  J.  S.  on  the  note,  sought 
to  have  the  deed  to  ♦he  daughters  set  aside,  as 
made  fraudulently  and  with  intent  to  defeat, 
defraud  and  delay  creditors,  and  to  have  defend- 
15 


ants  declared  trustees  for  plaintiffs  and  other 
creditors.  A  bill  in  Equity  tiled  for  this  pur- 
pose having  been  dismissed,  plaintiffs  ap{)ealed. 
It  appearing  that  the  deed  attacked  was  made 
for  valuable  consideration  and  liona  Jiih,  and 
without  any  fraudulent  intent, 

JIM,  that  the  appeal  must  be  dismissed. 
For-^j/lh  tt  al.  v.  Sut her/and  tt  a/., 

7  R.  &  (i.,  4r)0  J 
8C.  L.  T.,  15. 

48.  Proof  of- 18  Vie,  c.  9,  s.  20-  Tlie 

subscribing  witness  to  a  deed  need  not  be  pro- 
duced if  the  handwriting  of  the  party  making 
the  instrument  can  be  otherwise  proved. 

Woods  V.  FraM.r,  2Tliom.,  184. 

49.  Proof  of  title  where  no  grant  from 

crown— Wild  lands,  actual  possession  of  pari 
— Constructive  possession  of  whole — Consid- 
eration—Effect of  payment  or  non-payment — 
Where  a  party  claiming  land  in  ejectment  does 
not  derive  his  title  from  the  crown,  he  is  bound 
to  trace  it  to  some  one  who  has  been  in  posses- 
sion of  the  land. 

A  jiarty  claiming  wild  lands  under  a  deed,  and 
having  actual  possession  of  a  part,  has  a  sufHci- 
ent  constructive  possession  of  the  whole  land 
described  in  his  deed  to  bring  him  within  the 
Statute  of  Limitations. 

A  purchaser  Mho  has  paid  consideration  and 
occupied  for  twenty  years  without  a  deed,  ob- 
tains title  by  possession,  otherwise  if  considera- 
tion was  not  paid. 

Canard  v.  Irvine,  James,  .31. 

50.  Receipt  indorsed  on  deed  -The  body 

of  a  deed  acknowleilged  the  payment  of  the 
purchase  money  in  the  usual  form,  and  a  receipt 
therefor  signed  by  plaintiff  was  also  indorsed, 
but  subsequent  to  the  sale  a  dispute  arose  as  to 
whether  the  amount  stated  in  the  deed  included 
a  mortgage  existing  on  the  property,  or  whether 
the  purchaser  \\  as  to  pay  that  also. 

Plaintiff  having  sued  for  the  amount  of  the 
mortgage, 

Ili/d,  that  in  the  face  of  the  indorsed  receipt, 
and  of  certain  evidence  adduced  in  confirmation 
thereof,  he  could  not  recover. 

McDonald  v.  liloix,  3  N.  S.  D.,  283. 

51.  Rectification  of— The  Court  will  rec- 
tify an  error  in  a  deed  where  there  are  clear 
identification  and  proof  of  what  land  was 
intended  to  be  conveyed,  and  where  the  error 
had  been  caused  by  the  fraud  of  the  party 
seeking  to  defeat  the  deed. 

Peart  v.  Peart,  2  Old.,  73. 


451 


DEED. 


452 


Si.    Registration,  notice  of  -4th  R.  8.,  cb.  j 

79,  98.  9  and  19  -  Easement,  constructive ' 
notice  of— I'luiiititl'  purt^hasfil  in  187-  a  prop- 
erty atlji lining  ik'fen(lant'.s  j)ri)pt'rty,  and  to  tiie 
nortli  cif  it.  In  IS.Vt  t'aldvvell,  wlio  tlien  ownud 
tliL'  nnitlii.'1'n  iin)|)ei'ly,  grunted  by  doud  to 
defendant  the  privilege  of  piercing  tiie  soutii 
wall  of  his  liuilding,  carrying  his  stove  ])ipes 
into  the  tlues,  anil  erecting  a  wall  aliove  the 
Houth  wall  of  the  liuihling  to  form  at  that 
height  the  north  wall  f>f  defendant's  i>nilding, 
whicii  was  higher  than  jjlaintilFs.  This  deed 
was  not  leeorded  nntil  lS"l,ancl  t!ie  plaiiitifl's 
solicitor  ill  searching  <lid  not  sei  rch  under 
Caldwell's  name  after  tlie  registry  n'i  the  deed 
by  which  the  title  passeil  out  of  Caldwell's 
possession  in  ISti'i,  and  did  not  therefore  observe 
the  deed  creating  the  easement  in  favor  fif 
det'endaiit.  Defendant's  n(.rtheni  window  was 
so  close  to  plaintifl's  wall  that  it.  was  plain  to 
one  narrowly  observing  it  that  defendant  had 
no  separate  northern  wall,  and  the  defendant's 
northern  wall  above  plaintill's  building  re.-ting 
upon  plaintiffs  southern  wall,  was  oltvious  to 
anyone  htoking  from  the  opposite  side  of  the 
street. 

Held,  that  the  deed  creating  the  easement 
came  within  the  Registry  Act  as  "  airecting 
lands,"'  that  plaintill',  however,  was  not  bound 
by  the  registry  of  it  in  1871,  although  previous 
to  his  purchase,  the  title  having  pas.sed  out  of  | 
Caldwell  in  18tj'J,  but  that  plaintilf  must  be 
held  to  have  had  notice  of  the  easement  as  the  • 
encroachments  were  phiinly  visible. 

Ross  V.  Iliuito;  2  R.  &  G.,  44.  | 

On  appeal  to  tht  Sujirtnui  Court  of  Canada, 

Hdd,  that  the  coiitinuaiu:e  of  illegal  burdens 
on  plaintitV's  property  since  the  fee  had  been 
ac(iuireil  by  him,  were  in  law  fresh  and  distinct 
trespasses  ag.ainst  him,  for  which  he  was  entitled 
to  recover  damages,  unless  he  was  bound  by  the 
license  or  grant  of  Caldwell. 

2.  That  the  deed  creal  ing  the  easement  was 
an  instrument  requiring  registration  under  the 
provisions  of  the  Nova  .Scotia  Registry  Act  (4th 
Rev.  Stats.  N.  S.,  c.  79,  sees.  9  and  19)  and  was 
defeated  by  the  prior  registration  of  the  subse- 
(juent  purchaser's  conveyance  for  valuable  con- 
sideration, and  therefore  from  the  date  of 
the  registration  of  the  conveyance  from  Cald- 
well to  the  party  through  whom  plaintiff 
claimed  that  the  deed  of  grant  to  defendant 
became  void  at  law  against  the  grantee  in  .said 
conveyance  and  all  parties  claiming  through  him. 

3.  That  to  defeat  a  registered  deed  there 
must  be  actual  notice  or  fraud,  and  there  was 
no  actual  notice  given  to  plaintiff  in  this  case, 


such  as  to  disentitle  him  to  insist  in  ecpiity  on 
his  legal  jiriority  aciiuircil  under  the  Statute. 

/'( (•  (Iwyniie,  .!.,  ilissi  iiliiiij. — That  upon  the 
pleadings  as  they  stood  on  the  record,  tln' 
question  of  the  Registry  Act  did  not  arise,  m\A 
that  as  tlie  incuinbrance  coinplained  of  Imil  birii 
legally  created  in  1S.")9,  its  mere  continiiiiinediil 
not  constitute  a  tresjiass,  and  that  tlie  iiction  u.s 
framed  should  not  be  sustained. 

lioss  V.  IIiuili  i\  7  S.  C.  R.,  "289. 

53.    Registry  of  »  deed  is  not  e(|iiivalcnt 

to  enroliiieiit  under  the  statute  of  uses,  so  as 
to  transfer  tiie  jiossession. 

Sh'.y  et  a/,  v.  Chisholm.  Jaiurs,  .V.'. 

j     54.    Seal    Existence  of  presumed  in  rer- 

j  tain,  cases ^ A  document,   forty-tive  years  oM, 
in  terms  a  mortgage  of  real  esUite,  was  without 

[  .seal,  anil  had  no  trace,   mark  or  impression  of 

j  any  seal;  but  it  contained  the  usual  l(sliiluin 
clause  before  the  signature  of  the  parties,  uml 
the  usual  form,  "signed,  sealed  and  delivi'ieil 
in  the  preseiux-  of,"  before  that  of  the  witnesses. 
In  the  registry  of  the  alleged  mortgage,  two 
years  after  its  date,  tiie  registrar  had  phueil 
opposite  the  signatures  Iwth  of  the  alleged  moit 
gagor  and  his  wife,  who  signed  by  iiuiiks,  tlie 
usual  mark,  (L.  S.)  The  wife  of  the  allegeil 
mortgagor  had  also  acknowledged  her  release  of 
dower  before  a  .Justice  of  the  Peace,  and  the 
assignment  of  the  allegeil  mortgage  two  years 
after  its  dale,  was  under  seal. 

Held,  Young,  C.  J.,  and  Dodd,  J.,  dissintimj, 

j  that  the  existence  of  seals  to  the  alleged  iiioit- 

gage  at  the  time  of  its  signature  might  be  pre- 

\  sumed. 

Martin  el  al.  v.  Barnes  et  al.,  1  Old.,  291. 

i 

I    55.    SherlfT's  deed  —  Conveys  prlni.i  facie 

title  of  defendant— Evidence— A  Sheriii'sileeil 
'  prima  fane  conveys  the  title  of  the  defemlant ; 

and  even  if  a  portion  of  the  proceedings  in  the 
j  suit  prior  to  the  deed  be  gis-en  in  evidence,  it 

will  not  compel  the  party  to  prove  llie  wliole 

proceedings  to  have  been  regular. 

Sutherland  v.   H'hiddcn,  21i\\om.,m. 

56.  Sheriff's  sale  — A   purchaser  at  a 

Sheriff's   sale  may   appoint   a   third   person  to 
receive  the  deed. 

Scott  V.  McNatt  et  al.,  2  N.  S.  D.,  US. 

57.  Trespass  for  acts  done  by  grantor 
after  delivery  of  deed,  but  before  entry  of 
grantee— When  after  delivery  of  a  deed  tlie 
grantor  remains  in  possession,  trespass  will  not 


453 


DEED. 


454 


lie  against  liim  or  his  tcnimU  for  outting  trees 
previous  to  actual  entry  of  grantee. 

iMiiijiUe  V.  Lanijille  v.t  ai.,  1  Thoni., 

C-'n.l  K(l.),  1">9. 

38.  Trustees  convening  to  themselves 

and  others— Wiiere  two  as  trustees  eonveyeil 
tn  themselves  and  live  others  as  trustees, 

//«/)/,  that  the  title  was  sullieiently  eonveyeil 
tofUiilile  the  lessee,  under  a  leiise  made  hy  the 
seven,  to  recover  in  ejectment  ;  that  if  the  two 
trustees  could  not  convey  to  themselves,  the 
five  others  took  the  whole  title,  and  the  lease 
WIS  therefore  good  as  their  lease. 

Li  .«h-  of  Jiiijt/ow  tt  al.  V.  XorioH, 

2  Thorn., '283. 

39.  Trust  resulting  —  Consideration  - 

Pluiiititl',  in  his  bill  or  writ,  set  out  that  John 
1"  -  granted  certain  hin<ls  to  defendant  by 
deed,  which,  though  absolute  in  its  terms,  was 
given  to  secure  !i?(i(K»,  advanced  by  defendant  to 
creditors  of  said  grantor,  and  that  d'jfendant 
at  tiie  execution  of  the  deed  promised  '.o  reeon- 
vcy  to  the  grantor  on  payment  witliin  three 
years  of  tiie  amount  due  ;  tiiat  the  estate  of  tlie 
grantor  had  become  vested  in  plaintitf,  who  had 
tendered  the  six  hundred  d(dlars  and  ottered  to 
pay  any  balance  found  to  be  due  defendant,  who 
refused  to  accept  the  money  or  execute  a  deed. 

Defendant's  answer  set  up  a  parol  trust  to  pay 
in  full  a  debt  due  by  the  grantor  to  defendant, 
and  aj)ply  the  surplus  ratably  among  five  other 
creditors ;  that  the  amount  thus  due  was  more 
than  the  six  hundred  dollar.s  tendered,  and  de- 
fen<lant  offered  to  reconvey  the  land  on  payment 
of  tiu;  debts  as  security  for  which  it  was  given. 
A  memorandum,  signed  by  the  grantor,  was 
delivered  to  the  defendant  at  the  time  of  the 
conveyance,  witnessing  that  "the  sums  attached 
tn  tiie  following  names  "  (the  five  creditors  re- 
ferred tr)  in  defendant's  answer)  "  are  included 
as  the  consideration  money  of  John  Blair  to 
Robert  Chambers." 

The  ci'editors  referred  to  were  at  the  time 
pressing  lUair  for  payment,  and  gave  him  time 
in  consideration  of  this  conveyance.  The  claims 
of  several  of  them  were  bought  at  a  reduced 
rate  by  Blair's  son-in-law  in  Blair's  interest. 

Hf.Id,  that  there  was  a  consideration  moving 
from  the  several  creditors  named  in  the  memo- 
randum to  Blair,  and  a  resulting  trust  in  favor 
of  all  the  said  creditors  ;  that  parol  evidence  of 
this  trust  could  be  given  consistently  with  the 
Statute  of  Frauds  ;  and  that  defendant  held  the 
land  in  trust  for  the  payment  of  his  own  debt 
and  the  debts  of  the  other  creditors  at  their  full 
amount,  notwithstanding  the  purchase  of  the 


same  for  a  reduced  sum.  which  was  held  to  be  a 

matter  sidely  between  those  creditors  and  their 

assignee. 

y'ojye  v.  Chumb(r.-<,  1  R.  &  «.,  232. 

60.  Unrecorded  deed  avoided  by  a  Judg- 

miint  recovered  subsequently,  but  first  regis- 
tered —  Possession  of  grantee  —  Notice  to 
judgment  creditors — Construction  of  Revised 
Statutes  (4th  series)  c.  79,  s.  22— Chapter  7W, 
of  the  Revised  Statutes,  (4th  series),  s.  22,  reads  : 
"A  judgment  duly  recovered  and  docketeii  shall 
bind  the  lands  of  the  party  against  whom  the 
judgment  shall  have  passed,  from  and  after  the 
registry  thereof  in  tiic  county,  or  district,  where 
the  lands  are,  as  effectually  as  a  mortgage, 
whether  such  lands  shall  have  been  ac(|uired 
before  or  after  the  registering  of  such  judgment ; 
and  deeds,  or  mortgages  of  such  lands  duly 
executed,  but  not  registered,  shall  be  void 
against  the  judgment  creditor  who  shall  first 
register  his  judgment." 

The  Hank  of  Britisli  Xorth  America  recovered 
a  judgment  against  one  Merriam  and  others, 
January  2lMt,  187t),  and  registered  the  judgment 
on  the  following  <lay. 

On  the  23rd  April,  1873,  Merriam  conveyed 
certain  lands  to  one  Fraser,  under  whom  defend- 
ant claimed,  who  went  into  possession  and 
improved  the  lands,  and  was  in  possession  at 
the  time  of  the  recovery  and  registry  of  the 
judgment,  but  neglected  to  record  his  deed 
until  .January  28tli,  1876,  some  days  after  the 
registry  of  the  judgment. 

On  May  5th,  1879,  after  execution  had  been 
duly  issued,  the  property  was  sold  at  sheriff's 
sale  to  plaintiff,  the  general  manager  of  the 
Biink  of  British  North  America,  who  brought 
ejectment.  Neither  the  plaintiff  nor  the  bank 
of  which  he  was  manager  had  actual  notice  of 
the  conveyance  to  Fraser,  or  of  the  fact  of  pos- 
session, until  just  previously  to  the  sale. 

Hdd,  by  McDonald,  J.,  McDonald,  C.  J.,  and 
Smith,  J. ,  concurring,  that  the  prior  unrecorded 
deed  to  Fraser  was  avoided  by  the  registry  of 
the  judgment,  and  that  plaintiff  was  entitled  to 
recover. 

Weatherbe,  J.,  dissenting. 

Grindley  v.  Blakie,  7  R.  &  G.,  27  j 
7  C.  L.  T.,  50. 

61.  Unrecorded  —  Sobsequent  recorded 

mortgage  given  priority  over  —  J.  R.  McL. 
being  entitled,  by  right  of  his  wife,  to  an  inter- 
est in  certain  real  and  personal  property,  being 
an  estate  of  which  M.,  the  wife,  was  one  of  the 
heirs,  they  joined  in  a  mortgage  to  plaintiff  of 
all  their  said  interest.      On  plaintifif  seeking 


455 


DEFAMATION. 


456 


repayment  of  the  iinioiiiit  loaiu><l,  ilufentlant,  I  y/(,'(/,  tliat  .lefeiidaiil  liatl  coininitted  a  i)Uiii»li- 
one  of  the  executors  of  tlie  said  estate,  resisted  i  able  oflence,  and  that  the  proceedings  were  at 
tlie  claim,  on  llic  ground  tliat  six  years  pievi-  the  time  so  fai'  pending  in  the  Court  as  tocnaWu 
ously  .1.  U.  McL.  and  wife  had  conveyed  all  it  to  act  sumniarily  liy  attachment,  to  punish  if 
their  interest  in  said  estate  l)y  deed  poll  to  her  '  necessary,  tiie  otlence  committed, 
mother.  Tliis  deed  was  never  recorded,  an<l  !  The  lil.els  complaine.l  of  were  puhlished  on 
the  plaintitr  did  not  know  and  iiad  no  means  of  '  the  .'tOtli  December,  lSS.->.  and  the2()th  Jai\uary, 
knowingof  its  existence.  Tlie  motlier,  altliougli  '  l8H(i.  Tiie  motion  fur  the  attachment  was  not 
aware  of  plaintilV's  mortgage  at  the  time  it  was  :  made  until  March  "iTih,  I8S() 


made,  concealed  from  him  the  fact  of  tlie  deed 
to  her. 


IJM,  notwithstantling  the  lapse  of  time,  lliiit 
the   rule  shoidd  he  made   absolute    with   costs. 


Ihid,  that  having  so  concealed  from  the ,  The  main  object  i>f  the  application  was  to 
plaintiff  wiiat  it  was  her  duty  to  reveal  to  him,  I  prevent  furtiier  publications  of  a  similar  cliarac- 
the  mortgage  siiould  be  given  priority  over  the    ter,  and   not    to  punish    for   the  past   oll'euue  ; 


deed  poll,  and  plainlilF's  claim  satisfied  out  of    < 
the  estate. 

\y,:s(  V.  MafhisoH  It  nL,  3  X.  S.  1).,  4-29, 


therwise   the  Comt  wouhl  have    hesitated  to 
grant  the  rule. 

Qiuiii,  V.   W'ooilirorth,  ~  \i.  &('•.,  \S{); 

1  V.  L.  T.,-.'4ti. 


m.   Voluntary  -A  voluntary  conveyance 

by  one  not  indebted  at  the  lime,  not  in  embar- 
rassed circumstances,  and  not  made  witli  a 
fraudtilent  intent,  cannot  be  impeached  in 
equity  by  a  sui)se.iuent  creditor. 

I'oshr  V.  Foii'If.r  (t  al.,  1  Old.,  7.')3. 


DEFAMATION. 


3.    libel    Averments -Innuendoes   In  an 

action  for  liliel,  the  third  count  of  tiie  docliiiii- 
tion  allegeil  that  the  defenilant  falsely  ami 
maliciously  printed  and  jmblisiied  of  tlie  jiliiiii- 
tilT,  in  relation  to  his  calling  as  a  ministeici;  the 
gospel,  the  worils following:  "Notice.— .Ml  per- 
sons who  have  at  any  time  paid  Mr.  William 
Howers  (meaning  the  plaintiff),  formerly  of  the 
Lutheran  Church  in  Nova  Scotia  "  (meaning 
that  plaintitl'at  the  time  of  such  publication  was 
falsely  pretending  to  be  a  Lutheran  Minister  in 


1.   Costs-Judge  may  certify  for  costs  ■  j,^^.^^  ^^..^^j^^^  ..  ^„y  ,„„„^y  f„,  f„„„,,,,  ,^,,,1,,,, 

when  evidence  shows  malice -In  an  "•^'Hon  i  ^^,.j,  ^.^^^^j^.^.  ^         ^  f^^^.,,^. ,    ,,,,  ^,,    ,„,,,i,^  ^,^,„^.„j,. 

for  libel,  the    ' 

the  piaintifT 

Judge   thereupon    gave   a  eertiticate  that   the    j^^j^^^.^'  [i^^  ^j^^^^   ^^  ^1^^.  ^rst 'week  "in  October 

libel  complained  of  was  wilful  and  malicious, 

so  as  to  entitle  the  plaintiff  to  costs 


1,  the  jury  found  a  verdict  in  favor  of    j^  ,^y  i,,i,„nng  in  their  names  to  the  editor  o 
intiff  for  S5  damages,  and  the  presiding  '  ^,^j^   ^^^^^^^^,  ^,^  ^.^,.,y  ,^^  ^,,^,y  possibly  can,  an, 


next. 


H</<l,  on  demurrer,  that  the  count  as  contain- 
Hold,  on  appeal,  that  as  Uie  evidence  clearly  1  .^^^  ^^,^^^^^  averments  an.l  innuemloes,  was  go.«l. 

Boirer-y  v.  Hutchimon,  1  Old.,  679. 


showed    malice,   the    certificate   was    properly 

given. 

Bars.1  V.  Wallace,  20  N.  S.  R., 

(8R.  &G.),  504. 

2.   Libel  —  Attachment  for  contempt 


4.  Libel— Defects  In  declaration  cured  by 

pleading— Immaterial  averment  of  otfice  where 
words  actionable  yer  se — Functions  of  jury- 
Laches  in  moving  —  Jurisdiction  of  Court  —  Damages— The  declaration  set  out  that  the  de- 
Defendant  was  committed  for  trial  for  having  I  fendant  company  falsely  and  maliciously  ininteil 
published  in  his  new.spaper  certain  libellous  and  published  of  the  plaintiff  in  relation  to  a 
matter     concerning     M.       Shortly     afterward   certain  office  held  by  him  as  Deputy  Provincial 


defendant  published  three  other  libellous  articles 
concerning  M.,  which  were  calculated  to  in- 
fluence the  minds  of  the  i)eople  from  whom  the 
grand  and  petit  juries  would  have  to  be  drawn, 
and  thereby  prevent  a  fair  and  impartial  investi- 
gation of  the  charge  against  him.  When  the 
last  mentioned  libels  were  published  the  deposi- 
tions taken  on  the  former  complaint  had  lieen 
returned  to  the  Supreme  Court  and  were  on  file 
therein,  and  it  would  be  the  duty  of  the  presid- 
ing Judge  at  the  next  sittings  of  the  Court  to 
submit  the  matter  to  the  grand  jury. 


Secretary,  in  a  certain  newspaper,  &c.,  and 
vhkh  naid  artir/e  appeareil  in  the  editorial  col- 
umns of  the  Morniiui  HcmAZ,  &c.,  and  was  as 
follows,  viz.  (the  article  being  set  out  at  length.) 

ffvld,  that  although  no  "article"  had  liecn 
mentioned  in  the  count  to  which  the  words 
"  which  said  article"  could  refer,  the  defect  was 
cured  by  pleading  over  and  particularly  by 
justifying  the  publication. 

Held,  further,  that  although  the  defamatory 
matter  was  charged  as  having  been  published  ol 
the  plaintiff  in  relation  to  his  office,  it  was  no 


457  DEFAMATION.  458 

olijectiiiii  to  tlif  voi'diul  fur  |ilaiiititr  tliat  tlie  jury  wlictliiT  i>r  not  the  occasion  created  ii  privi- 

fact   i>(   iilaintirt'    holiling    nucIi    ollice    was    not  lege,  and  if  so,  .siiould  liave  left  it  to  the  jiiiy 

|ii(iv((l,  as  sonic  of  the  words  used  were  action-  tosay  wiietlicr  the  defendant  was  actuated  l)y 

iilile  in  themselves,  and  the  innuendoes  sliowed  malice  in  fact,   wiiicii,    if  it   existed,  destroyed 

that  theoliject  of  IIk^  suit  was  to  recover  damages  his  privilege. 

sustained  liy  plaintitV  out  of  otlice  hy  rea.son  of  ''«//  "■'•  (-'orlx't,  4  11.  .V  ('..,  407. 

eliarjres  made  against    iiini  of  alleged  improper 

tniid.Rt  Willie  in  odice.  8.    llbcl    Mallclous  prosccutloii    Pflvl- 

//./-/,  also,  that   tiie  evidence  of  pul.lication  lege -Declaration  in  tlie  Supreme  Court  of  Nova 

wiissiitlicieiit    to  go  to  the  jury,  and   it   was  no  ><cotia,   at    Halifax,   alleging   in    tiie  tirst    three 

iniMlire.lion  to  leave  the  iiueslion   of    pul.lica-  counts,  that  the  defendants  falsely  and  nuilieicms- 

tJHii  to  the  jury  under  such  evidence,  and  that  'y  "■'"'^'  "'"1  pul'lisiied  concerning  the  plaintiff 

tiif  damag.ts  (.d<HKJ)  were  not  excessive,  in  view  H"'  words  contained  in  a  iK-tic  served  upon  iiim 

of  the  serious  charges  contained  in  the  article  under  the  Statutes  of  Canada,  32  and  33  Vict. 

aii'l  the  suhst.,|ucnt  con.luct  of  the  defendant.  <'•    1<».    «•    14,  reijuiring  him,  being  indehted  to 

CroM-i//  V.  Till  MurniiKj  ILmId  /'nii/iii;/  them  or  f)thcrs  on  certain  promissory  notes  long 

mill  I'lihlishhnj  Co.,  4  U.  X-  (i.,  •JtKj.  overdue,   to   make   an  assignment  of  his  eatale 

'  and  etFects  for  the  benefit  of  his  creditors,  and 

.1.     Llbcl  -Forgery      Pleadings      The   dC-  alleging  in  the  tifth  ecmnt  that  liic  defendants 

fi'iiilant    ill   an   action  for   slander   accused  the  maliciously  and  without  reasonable  or  probalile 

|ilaintiil' of  writing  tlic  will  of  an  illiterate  per- ,  cause   obtained   a    writ   of   capias    against    the 

sipii  coiitiaiy  to  his  instructions,  and  rea<ling  it  I  jdaintitf  in  an  action  on  certain  promis.sory  notes 

til  him  inaccurately,  foi-  the  jmrjiose  of  getting  |  of   wiiieh  the  plaintifT  was  the  maker  and  the 

the  testator's  propi'rty  into  the  plaintiff's  hands  defendants    were    tlie    indorsees   for   value,    by 

for  his  own   lienetit,  whereby  the  testator   was  falsely  and  maliciously  representing  by  a  false 

iiHJuccd  to  execute  tlie  will.  affidavit  that  the  pliiintilf  was  about  to  leave  the 

//</'/,  that  tiiis  was  a  charge  of  forgery  against  Province,  ami  alleging  the  arrest  of  the  ])laintitt° 

llif  |)laiiititl'.  thereunder  and  his  subsec|ueiit  discharge  by  an 

'{"he  deilaration  laid  tilt!  words  used  as  accii-  ruder  of  Court  on  its  ap])earing  tiiat  he  was  not 

siiiL'  tiie  plaintitl'of  cheating.  about  to  leave  the  Province.     Plea  to  the  first 

//'/</.  to  lie  sutlicient   to  sustain  a  \eiilii;t   for  tiiree  counts,  a  denial  of  |)ul)'.ication  to  anyone 

pliiiiilitV,  although  tile  words  used  amounted  in  luit  tiie  jilaintitl,  and  that  tiie  notice  contained  a 

reality  to  a  eliarge  of  forgery.  true  statement  of  facts  ;  to  the  fifth  count,  that 

V"'"''.  wlietiier  a  charge  of  a  gross  ])rivate  having   been   informed   and   believing    tliat   the 

fraud  will  sustain  an  action  for  slander  without  plaiiititl'  was  aliout    to  leave    the    Province  the 

s|itrial  damage.  defendants  caused  proceedings   to    be  taken   to 

[[nil  V.  Citi-lii,  .lames,  ;{7!t.  ,i.u>,ver  their  debt,  which  was  <,f  long  standing. 

«.     Libel   -Innuendo       It    Is   Sllfflclent  to  The  . I udge  .litx-ctcd  the  .j,,ry  that  if  the  defend- 

specify  the  defamatory  sense  of  libellous  w..rds  '""'^  '>"'  ""»  '^^  ""'  ""'^'  "^  ""'  "'•'•'■■^^  ''"'"^^'^  ^'"^^ 

;„   ,1       f  e  '■  1  -.1       .       .1  tlii'ir  lU'lit    would  be  otherwise  lost,   and  acted 

111   tlie    toriii    of   an     innuendo    without    other  .  ' 

I  .  witli  a  \  iew  to  protect  the  interests  of  the  indor- 

M,    :  :  „      f.i     I.    •.    1  o.   ,      ,.       ,      1,1         1  sers  of  the   notes  rather  than  their  fiwn,   tiiat 
liccisiiiiis  III  tliu  united  Ntatest  ouits  altlioiigli  ' 

„,„;,i    1^    .  .  ,  1  ■     1-  ,•       .  would    be  evidence    of    want  of  reasonable  and 

cntitleil  to  respect  are  not  lundnig  on  our  I  oiirts. 

I,  I     ,  I,  ,/,      I  .,,.-  probalile   cause    for   arresting,    and    entitle  the 

/{ohnii  V.  I  (itillii,  .lames,  ,{(>,.  '  "' 

plaint  iir  to  damages  ;  and  the  Court  subsei|uent- 

«•     Libel     Innuendo     Funetions  or  Judge  ly   held    that    the    general    verdict,     including 

andJurv     Privilege  ■  Mefeiidaiit  admitted  |)ub-  damages  in  respect  to  the  lirst  three  counts,  was 

liratiuii  iif  ail  alleged  libel,  and  denii'd  tha^  the  justified  on  the  ground    that    the    pleas   of  the 

alleged  defamatory  matter  was  published  of  and  defendants    to    those  counts   did    not  ilciiy  the 

Cdiiccriiing  the  jilaiiititl' with  the  sense  si^t  out  in  material  allegations  of  pulilications,  falsity  and 

tile  imniciiihi.  malice. 

//'/'/,  that  it    was  the  duty  of  the  .ludge  to        J[ilil,    that    there    was    misdirection    which 

tell  »lu'   jury    whether   the   words    used    were  justified  a  new  trial.     There  was  reasonable  and 

oapalile    of   the   construction    put   on    them   by  probable  cause  for  the  arrest  if  the  defenilants 

Iiliiiiititf,  and  to  leave  it  to  the  jury  whether  the  believed    that  the  ))laintifl'  was   about  to  leave 

Wdids  were  in  fact  used  with  such  meaning.  the  Province,  and  that  their  remeily  against  him 

ffilil,  further,  that  under  the  jilea  in  which  would  be  lost  if  he  were  not  arrested,  notwith- 

•lefendant  justified    the  publication  as  a  legiti-  standing  they  might    have    believed    that   they 

niiUe  criticism,  the  Judge  should  have  told  the  could  recover  the  debt  from  the  indorsers,  and 


459 


DEFAMATION. 


4G0 


were  endeavoring  to  protect  the  interests  of 
intlorsers. 

The  notice  being  a  legal  proceeiling  was 
prima  faw  privileged,  anil  no  action  would  lie 
for  the  delivery  of  it  to  a  third  person  for  service 
upon  tiie  jdaintirt'  unless  upon  ]>ro()f  of  express 
malice.  The  allegation  of  f.ilsity  was  impliedly 
denied,  and  there  was  tiiereforo  no  necessity  to 
expressly  deny  malice. 
Bank  of  British  Xorth  Amcrira  v.  Stroifj, 

1  App.  Cas.,  307  ;  34  L.  T.,  (V-'7. 

Unreported  helow. 

9.  Libel  -Privileged  communiration— De 

fendant  wrote  to  the  Provincial  Secretary  a 
letter  containing  complaints  and^charges  against 
the  defendant  in  his  otfice  as  sherilF.  Defendant 
justified  on  tiie  ground  tliat,  heing  a  l)arri8ter 
of  the  Court  and  dissatistied  witii  the  official 
conduct  of  the  plaintilV  he  had  written  to  said 
Provincial  .Secretary,  l)eing  a  mcndier  of  the 
(lovernment  wiiich  had  appointed  and  could 
dismiss  tiie  plaintiff,  helieving  tiiat  the  state- 
ments set  forth  in  tiie  letter  were  true,  and  he 
alleged  that  the  letter  was  written  witliout 
malice.  Plaintifl'  new  assigned  ])iil)lii'ation  to 
other  persons,  l)ut  the  letter  so  pul)lisiied  wis 
not  clearly  iilciitified  witli  the  one  on  wliicli  tlie 
action  was  brought.  The  jury  found  for  defen- 
dant. 

IJilil,  that  the  communication  to  the  Provin- 
cial .Secretary  was  privilegeil. 

Per  Smith,  J. — Th.it  althougli  the  letter  con- 
tained 'xpressions  tiiat  inigiit  indicate  malice, 
as  the  jury  found  for  defendant,  after  the 
evidence  on  that  point  had  been  clearly  put  to 
them  by  the  .Judge,  the  verdict  could  not  be  set 
aside. 

Per  McDonald  and  Weatherlie,  d J.  —  That 
although  the  verdict  was  unsatisfactory,  there 
was  not  sullicient  reason  for  disturbing  it. 

DiiBarrts  v.  Tn maim ,  4  K.  it  G.,  215. 

10.  Libel  -  Privileged  communication  — 

Plaintiff' was  a  land  surveyor,  appointed  by  the 
(iovernment  of  tlie  Province,  and  ilefendant 
wrote  a  letter  to  the  Provin<;ial  .Secretary,  com- 
plaining of  plaintitf's  conduct  and  making  cer- 
tain charges  against  him,  whereupon  plaintilY 
proceeded  against  him  for  libel.  Defenilant 
pleadetl  tiiat  ids  letter  was  a  privileged  connnu- 
nicatiim.  Tlie  Commissioner  of  (^rown  Lands, 
and  not  the  Provincial  .Secretary,  was  the  per- 
son to  whom  the  letter  should  projierly  have 
been  addressed.  The  learned  .Judge  who  tried 
the  cause  directed  the  jury,  that  if  they  thought 
the  letter  was,  in  view  of  plaintiff's  official  rela- 
tion to  the  Government  and  the  Crown  Laml 
Department,  written  in  good  faith  and  without 


;  malice,  it  was  a  privileged  communication.   The 
'  jury  found  a  verdict  in  favor  of  defeiKiaiit.    On 
argument  of  the  rule  to  set  the  verdict  aside, 

Jli'lii,  that  although  the  letter  should  strictly 
have  been  addressed  to  the  Crown  I..and  Depart- 
ment, yet  that  the  Judge's  direction  was  rigiit. 
Mule  discharged. 

Kerr  v.  Davimn,  3  N.  S.  D.,  354. 

11.  Libel  — Proof  of  publication    The 

defendant  company  was  incorporated  by  stiitiuu 

.  for  tiie  purpose  of  iirinting  and  publishing  tlie 

Moriiiiii/  Hi  raid  newspaper,    and  was  chargeil 

'■  by  plaintiff  with  having  published  of  and  lou- 

I  cerning  liim  tliat  he  hadal)sconded,  meaningtliat 

lie  was  insolvent.     A  letter  was  put  in  evideiKe 

'  from  plaintiffs  solicitors  to  Cahill,  the  business 

'  manager  of  tlie  company,  referring  to  the  .stiite- 

ment   as    fnlse,   and    demanding  reparation,  to 

'  wiiich  tlie  following  letter  was  received,  in  the 

,  hanilwriting  of  the  business  manager,  who  had 

shown  tiie  letter  to  the  editor:  "The  editurof 

the    IJirnId,    referring   to    Messrs.    McCoy  & 

j  Longley'a  (the  solicitors  of  plaintitf)  letter,  re- 

cpiests  that  they  state  what  reference  they  wisli 

to  iiiakt;   to  the  matter  in  the   Hi rnlil.     If  the 

statement  as  puldished  is   now   <lenied   by  Mr. 

I  Wright,  the  eiiitor  is  willing  to  accord  to  liim 

the  benefit  of  such  denial." 

i      The  business  manager,  who  had  been  a  prao- 
'  tical  printer,  testified  that  he  had  knowledge  of 
the  make-up  of  the  jiaper,  and  that  tliere  were 
advertitieini  nts  in  the  paper  tenilered  that  were 
i  charged  for  l>y  tlie  defendants,  but  on  tin;  fol- 
lowing day  he  gave  evidence  somewhat  contliet- 
'  ing  with   that  of  tlie  previous  day  in  reference 
i  to  his  knowledge  of  the  make-up  of  the  paper. 
The  .Iiulge  ou  the  first  day  declined  to  receive  a 
question  as  to  Cahill's  belief  that  the  paper  ten- 
dered was  one  issued    by   defendants.     In    his 
report  tiie  .Judge  said  :    "  I  refu.sed  to  receive 
the  newspaper  as  proven,  and   jilaintilf  having 
become  non-suit,  I   otfered  to  give   him  a  rule 
nixi. " 

Held,  that  this  was  not  such  a  voluiilary  non- 
suit that  the  plaintiff  could  not  move  to  set  it 
aside,  and  that  the  evidence  of  Cahill  as  to  make- 
up of  the  paper  should  have  gone  to  the  jury. 

Per  McDonald,.!.,  that  on  the  evidence  "f  the 
letters,  the  ijuestion  of  publication  was  one  of 
fact  for  the  jury. 

Wriijht  v.  Morninij  Herald  Co., 
'2  R.  &G.,  .398;  2C.  L.  T.,  106. 

12.  Libel  -Proof  of  publicatlon-Idcntit) 

of  plaintiff  with  party  defamed  —  I'roof  of— 
This  acticni  was  brought  against  the  defendant 
Company  for  wrongfully  and  maliciously  trans- 
mitting over  their  wires  from  Halifax  to  St 


461 


DEFAMATION. 


462 


John,  ami  causing  to  be  printed  an<l  published  in  ' 
the  Ikiihj  Ti/iijiajih  of  tlie  city  last  nivnicd,  and 
ilsi'wluMC,  the  false  and  defamatory  message  of  ' 
mill  concerning  tiie  plaintiffs,  i.  c,  "John  Silver 
k  (Vi.  (meaning  the  plaintiffs)  wholesale  clothiers  ; 
(ifCraiiville  Street  iiave  failed,  lialiilities  heavy;" 
iiicaning  that  i)laintilTs,  .tc,  whereby  many  cus- 
toniors  teased  to  deal  with  plaintiffs,  &c.    Defen- 
dants   denied    having    published    the    alleged  j 
m.ittcr  of  and  concerning  tlie  plaintiffs,  and  no' 
evidence  was  offered  to  show  that  the  alleged 
liliil,  or  the  words  John  Silver  and  Co.,  referred 
to  the  plaintiffs  or  either  of  them,  but  the  plain- 
titlVdisirilied  themselves  in  the  writ  as  whole- 
sale   and    retail    merchants    in    Halifax,  doing 
Imsiiiess  under  the  name  of  John  Silver*  Co., 
and  there  was  no  evidence  of  any   tirni  doing 
business  in  Cranville  Street  of  the  name  of  John 
.Sihcr.t  Co.  other  tiian  tiiat  of  plaintitl's.     The 
(jiJL'inal  telegraphic  message  was  not  produced, 
luit  a  copy  of  the  newsjiaper  containing  it  was 
iiMiived  in  evidence,  the  publisher  of  the  paper 
having  stated  that  he  never   searched    for   the 
tvhgiani.  that  it  was  no  use  to  do  so,  that  he 
had  never  hail  the  custody  of  the  telegram,  and 
that   suili  telegrams  were  generally    destroyed  ] 
the  niiirning  after  they  were    received.     There  I 
was  nil  expre.-is  evidence  to  show  that  Snyder 
villi  fi.iinislied  the  telegram  was  ap|)ointeil  by 
(IctVnilants  as   their   agent,    but    the   jmidisher 
swore  to  an  agreement  bj-  which  lie  took  tele- 
graphic iiiforiuation   from  the  defendant  Com-  ' 
pany,  i)aying  oidy   for    such   telegrams  aa   he 
pulilished,  and  added  that  Snyder  was  the  head 
man  in  St.  .lohn  and  liad  been  so  ever  since  the 
cstalilislinient  of  tiie  ('omi)any,  that    his  trans- 
actiiins  were  entirely    witli    .Snyder,    whom    he  : 
loiil<  tn  lie  arting  as  agent  of  the  Company,  the  ! 
liills  being  rendered  in  their  name  by  .Snyder. 

//'''/,    Weatherbo    J.,    di'ottntiiKj,     that    the  j 
juiy   were  warranted   in  tinding    that  the  libel  j 
cinnplaineil   of    pointed    unmistakably    to    the  ■ 
plaintitl's,  that  the  copy   of  the  newspaper  had 
liein  properly    received  :    that   the   jury    were 
warranted  in  tinding  that  .Snyder,  in  furnishing 
tile  telegram,  was  acting  as  agent  of  the  defen- 
ilinls,  and  that  the  verdict  for  the  i)laintiffs  for 
87<J<lO.  altliough  perhaps  larger  than  the  Court,  if 
e'ii]iaiiiielled  as  a  jury,  would  have  given,  could  | 
not  he  set  aside  as  excessive.  i 

.yi/rtr  u  at.  v.  Dominion  Ttlinm/ih  Company,  : 

2R.  &(;.,  17;  i 
1  C.  L.  T.,  L'S-t.  ; 

0)1  npjK-nl  to  thn  Sitpirme  Court  of  Canada,       \ 

Hilil,  Taschereau  and   (Jwynne,  JJ.,  iliisint- 

!«;/,  that  the  appellants,  the  1).  T.   Co.,   were  j 

respniLsiljle  for  the  publication  of  the   libel  in  , 

question.  I 


/Vr  Taschereau  and O Wynne,  JJ.,  dinsentimj.  — 
Assuming  the  agreement  in  (juestion  to  be  one 
within  the  scope  of  the  purposes  for  which  the 
defendants  were  incorporated,  and  that  .Snyder 
had  sufficient  authority  to  ente'  into  it  on  behalf 
of  tlie  defendants,  the  evideni'e  established  that 
the  defendants  eoUected,  eoni|>ileil  and  trans- 
mitted the  news  for  the  proprietor  of  the  news- 
paper, as  his  conlidential  agents  and  at  his 
reiniest,  and  that  they  were  not  responsible  for 
the  publieation  iiy  the  said  jirojirietor  and  pn))- 
lisher  of  said  news,  for  which  the  damages  were 
awarded. 

2.  That  the  damages  were  excessive,  and 
thei'efore  a  new  trial  ought  to  be  granted. 
Hitcliie,  C.  J.,  donhlinij,  and  Henry,  J.,  dissint- 

'".'/• 

Hilil,  rr/xo,  //( )•  .Strong,  Tasohereau  and 
(Jwynne,  .M. — \o  special  damages  having  been 
alleged  in  the  declaration,  the  evidence  as  to 
such  damages  having  bei'U  objected  to  was 
inaiiinissible,  ami  therefore  a  new  trial  should  be 
granted. 

Dominion  'J'< lii/ra/ih  Ctnnjifini/  v.  Si/nr, 

10  S.  C.  R.,-238; 
•2C.  L.  T.,  •_>.-.•>. 

13.  Libel— Voluntary  non-suit    Evidence 

— t)n  a  motion  for  non-suit  tiie  learned  .Judge 
expressed  the  opinion  that  the  )daintiff's  evi- 
dence was  extremely  weak,  but  did  not  suggest 
that  tliere  was  nothing  for  the  jury.  The 
plaintiff's  counsel  having  thereupon  offered  to 
become  non-suit  if  with  leave  to  set  it  aside, 
which  leave  was  given, 

//(/</,  that  the  non-suit  was  vohintaiy  and 
could  not  be  disturbed. 

A  general  charge  of  foreswearing  is  sulhciiuit 
to  maintain  an  action  of  libel,  but  where  the 
charge  is  to  be  found  liy  iiii])licatii>n  from  one  or 
more  writings,  the  case  is  different. 

Where  a  writing  was  referred  to  in  an  alleged 
libel, 

Sitnfili,  that  the  writing  should  have  been 
produced,  or  its  contents  proved  where  its  non- 
production  was  accounted  for. 

Oake^  v.  Kcatimj  <t  al.,\  R.  &  (,'.,  :m\. 

14.  Slander— Innuendo— Evidence  —  De- 
fendant nsed  in  reference  to  [ilaiiitiff  the  words 
"stud"  and  "mare  rider,"  for  which  plaintiff 
brought  an  action  of  slander,  with  an  innnindo 
attributing  to  the  words  the  meaning  that  jilain- 
tiff  had  committed  the  crime  of  luiggery.  The 
Court  set  r.side  the  first  verdict  on  the  ground 
that  the  words  were  not  actionable  pir  st.  On 
the  second  trial,  the  only  eviilence  adihiced  by 
way  of  foundation  for  the  iiiiestion  as  to  the 
sense  in  which  the  words  were  understood,  was 


468 


DOMICIL. 


464 


that  of  niniors  in  tlic  npiglilxiiirliooil  tlial  tin- 
pliiintitr  liail  ('(iiniiiittoil  such  iiiini-,  Imt  it  wiih 
not  slinuu  tlml  those  rinnors  woi'e  known  to  the 
(lefvntlant. 

//'A/,  that  tiic  cviilcni't-  liail  hvvu  iniin'iipi'ily 
ailiiiittt'd,  anil  that  tiu'  vfiiliit  for  plaintilV  must 
he  set  asiiU". 

(Intnl  V.  Siin/iyon,  .'J  ]{.  &  ('.,  141. 

U.    Slander  —  Privileged  communication 

—  Malice-  I'hiinlitr  was  tlie  Lollector  of  pew 
rents  in  St.  Paul's  Chureii,  and  it  was  his  duty 
as  sueli  to  hand  them  over  to  tlie  defendant, 
who  was  the  .senior  warden.  'I'iie  ehin'eli  had 
been  l)roken  oj)en,  and  the  moneys  and  money 
boxes,  witii  eeitain  liooks  of  no  use  to  any  one 
but  tlie  plaint  ill'  and  the  ChiU'eh,  taken  away. 
The  defendant,  in  presenee  of  the  plaintitl's 
surety  (a  vestryman),  two  otlier  vestrymen,  and 
the  reetorof  tile  eliiireh,  iliarj,'ed  plaintill' w  ith 
the  erime,  adding  that  he  had  not  handed  over 
the  money  eoUected,  and  had  destroyed  the 
hooks  to  lovi'r  the  delieieney.  Tin.'  jury,  in 
answer  to  a  nuestion,  said  tliat  they  I'oidd  not 
decide  whellier  the  defen  lant  had  malice  or  not 
when  tiie  words  were  sj)oken,  hut  tiiat  they 
considered  lie  had  no  right  to  use  tliein,  and 
tlicy  found  for  the  plaintill'. 

Ifi/'/,  that  the  eominunieation  was  privileged, 
and  that  as  tlie  jury  had  not  found  express 
malice  the  verdict  must  fall. 

Shiphn-il  V.    II7(//',  •_'  H.  k  ('.,  .SI. 

10.    Siander    Special  damages  need  not 

be  alleged  or  proved  in  certain  ca.se.s  I'laintitf 
claimed  damages  for  slaiidir,  alleging  in  ill.-; 
declaration  that  defendant  had  spoken  certain 
word.s  about  him  in  relation  to  his  husiiuss  to 
the  efteet  that  he  was  guilty  of  fraudulent  con- 
duct in  said  Imsiness,  and  was  untrustworthy 
and  ii!']iriuciplcd  in  his  way  of  carrying  it  on, 
whereby  plaintill'  was  injure<l  in  hi.s  ciedit  and 
reputation,  and  his  custoniers  were  eau.sed  to 
limit  their  dealings  with  him  and  to  withhold 
business  from  him. 

//(/(/,  that  there  was  no  neeil  of  alleging  oi' 
proving  sjiecial  damage. 

I'aiiit  V.  Muckaii,  ;j  X.  .S.  1).,  .31«. 

DEMl'RRKR- 
Sf,  PLEADING. 


DEPOSlTIOJr- 

See  EVIDENCE.  i 


DEVI.4TI0N  AND  CHANGE  OF  VOYAGE 
Distinction  between— 

Ste  SHIPPING. 


DEVISE- 
S''  WILL. 

DISCOVERY- 
S.r  EVIDENCE. 


DISMISSAL,  WRONGFUL- 
SW  MASTER  AND  SERVANT. 


DISTRESS  FOR  RENT- 
SV'  LANDLORD  AND  TENANT. 


DOMICIL 
1.     How  constituted    Three  years'  res|. 

deuce  with  an  inteiiclcd  'Mic<'rtaiii  contimuimr. 
thougli  for  a  special  ))urpose,  witii  trade  in 
dependent  of  that  Jiurpose,  continued  after  the 
declaration  of  war,  constitutes  a  domicil. 

Th(   Piitriof.  Stewait.  .'i.'iH. 


2.     American    doniicii    not   divested - 

Frenchman  domiciled  in  America,  begins  voy- 
age to  France  with  a  view  of  settling  tin  re, 
hears  of  war  and  returns  to  America,  aban- 
doning his  intention  of  retorning  to  France- 
A  Freiuhnian  win-  had  settled  in  America  , mil 
become  an  American  citi/en,  sailed  finni  ISiilti- 
more  for  Dunkirk  on  a  French  ship  inteinliiig  i" 
take  up  his  residence  once  more  in  Kranw. 
The  vessel  sailed  in  ignorance  of  existing  war 
iK'tween  France  and  Kngland,  and  while  on  lui 
voyage  received  the  first  intelligence  of  this 
event.  She  at  once  altered  her  voyage  aiiii 
stood  for  Ho.'iton,  the  nearest  port  in  the  Slati'S. 
After  pursuing  her  voyage  for  Hoston  fi)i'  '<• 
whole  month,  she  was  captured  and  hnniglit 
into  Halifax.  Upon  bringing  in  an  atliilavit 
that  upon  his  receiving  information  of  war,  he 
had  totally  abandoned  his  intention  of  reiiioving 
to  France  during  the  continuance  of  the  war, 


465  DOWER.  460 

anil  (leRi^jiu'cl   to   return  to  liis   doinicil  in  the    witli  C.  S.     After  the  dcatli  of  ('.  R.,  pluintittH, 

rniti'il   State.-',  goods  of  tlie  Fronulnnan  taken    as  reversioners,  without   joining  tiie  heirs  of  ('. 

(Ill  lioaril  t lie  vessel  were  oi'dered  to  lie  restored.     R.,    brought   iin   action    of    waste   against    the 

Tlif  f.i'<  Troll  Frini,  .Stewart,  I.    tenant  in  dower,  C.  S.,  her  husliand,  and  \V.  H. 

H.,   the   piireliascr,  elainiing  damages    for  the 

i  in  jin\v  to  the  land  liy  the  removal  of  the  timlier. 

The  .ludge  who  tried  the  eause  having  nonsuited 
DONATIO  MOKTIS  C.4l'8A.  the  plaintilfs,  and  a  rule   having  lieen   taken  to 

set  the  same  aside. 

Donor  cxppcising  acts  Of  ownership  ancr      ;^,/,,   (,,  ,1,,,^  ,,„  ,,,^.  j„.,,„„,   ,,,„i„,..,  ,^, 

gift     The  delivery  of  the  key  of  a  .•hest  .ontan,-  ,.,,,.,.,,)„„,,,,,   „,,„„,,,     ,,„,.,.     ,„,^,„    j„i,„,.i   „,  ,,„. 

in,'  n,n„,.y,  with  the  expressHm,  "all  the  n.oney  ,,,,^j,„i,y,_  ,„„_  „,  „.,n-joinder  ean  only  he  taken 

h,  that   ehest  I  give  to  you,"  when   the  donor  ,„i,,,,„,,^„.  „f  l.y  ,,W  in  al.ateu.ent,  and  no  sueh 

s„lis,.,|„w>tly  exereises  acts  of   ownership  over  ,,1,,,,  was  pleade.l,  the  non-suit,  if  ordere.l  «-/./»/ 

til- chest,  will  not  eonstitute  a  ,h,m>>o  """•"-■  „„  that  grouml,  eouM  ,u.t  have  heen  sustained. 

'""*"•       ,  ,,  ,   ,      ,.  „     ,  .,,,.,  ,..,         ('2.)     That  in   such  ca.se   the  plaintitls  would 

III  f<  Lslati- 0/  Jidi-liiiaii, '2  lhom.,(i"J.    ,  .  ,    ,  ,     /,,       ,         t    , 

lie  entitled  to  recover,  not  the  full  value  ot  tho 

!  injury  done  to  the  laml,  hut  only  for  such  por- 
I  tions  of  the  damage  a.s  was  incurred  l>y  them- 
selves alone. 

(3.)     That  the  tenant  in  dower  was  entitled  to 


DOWER. 


1.   Equity  of  redemption  -  A   widow   Is  ^'"^  '>""'"  ""^  *'''''^^'*  ""  "'^'  '•'"■'  f'"'  f'"^^'-  f^'''''''^-'- 

entitled  t.i  (lower  in  her  husliands  e.piitv  of  re-  '"'P''^'^-""™*  '""1  I'ultivation,  and  luiriioses 
(lein|,tion.  in  a  case  where  she  was  a  party  to  the  ^■"">"'<^ted  with  such  improvements,  l.ut  not  to 
in.i.t.L'ai.'ef(.r  the  purpose  of  releasing  her (h.wer.  '  «<^11  the  wood  for  otiier  and  ditferent  purpo.Kcs, 
muler  the  Provincial  .Statute;  and  her  claim  will  I*"  """  l"''"""'^''''  '".i'"y  "f  ♦''<'  leversioiieis, 
lie  pictected  liy  the  Court  of  Chancery  in  distri-  '  "'"^  ^'''^^  f'"'  •''"^•''  '"'"'y  ''''^'  ''"''  responsihle  to 
Imtin-  tile  sur|.lus  left  after  foreclosure  and  .sale  i  ""'  •'evcrsioner. 

..f  the  mortgaged  premises,  and  after  pavn.ent  of  *-*-^  ihMUnit,.)  That  an  action  will  lie 
the  inciuulirances  to  which  she  was  a  party.  •  "^'"'"'*t  '^  1"''*1««ih1  jointly  with  his  wife  for  waste 

1  eonnuitted  liy  the  latter  hefore  tiieir  intermar- 


ColliiiK  V.  Slorji  il  al.,  Axmws,  1-11. 

2.   Evidence  to  support  action  for    The 


;  riage. 

(.">.)     That  \V.  H.  H.,  the  purchaser,  acting  as 

,  ,  ,      ,       ,     ,     ,  ,  he  did.  under  the  aiitiiority  of  the  tenant,  was 

(Uwascil  liusliiiiid  of  piaintitt  occiiiiied  land  un-         .     ,  ,  ,    ,  ,  "     , 

,  '         ,  '  not  chargealile  for  waste  liy  the  reversioners, 

(ler  an  au'ieemciit  to  jturcliase.    which  was  not 

slHiui,  1„  iiave  ripened  into  a  title,  and  was  not  ,  ''^""''  ''  "'■  ''■  ''''"''■■'  ''  "'-  •'  ^'-  '^^  ''•'  ■*""• 

sigiuMl  (ir  shown  to  have  lieen  ratilied,  or  acted  | 

uiKin  hv  the  parlies  having  the  leixal  title  to  the  •"»•  ^hcn  A.  purChaSCd  landS  SUbJCCt  tO 
land.  The  plaint iin.rotight  action  for  dower  '''"'"•  "^  '""^^ '•'•-'"-'  n"'rtg((gcd  in  fee  to  I!., 
against    the   defendant,     who    lield    po.ssession.  j ''"'''•  ^'"'^  "''"'f  ''""■'^''  """''•   ""^   •'''  "^'"""'^ 

wliicli  was  not  shown  to  lie  wrongful,  Imt  failed  i  *^"  ,,    ,    ,,  ,,,,-,  .,-,.,  ,.,- 

..,...,,,      ,     .      ,  .  ,    ,       ,      ,       ,  .     ,  JlrAiiliiir  v.  Mcdilrraii,  'J  llioin.,  A'l,. 

to  nlciitify  the  land  of  which  her  husliand  had  ' 

had  iiosscssioii.  as  the  lot  deserilieil  in   the  writ. 

Verdict  for  ilefeiKhmt  sustained.  ^       ,,.„„  ,ands      A  WidOW  Is   dOWabIC    In 

huh, I  V  TI,o)ii,.so,i,  :i  R    &  C.,  ,S(i.  t|,i^  pnnince  of  wild  lauds. 

The  extent  to  which  wood  may  lie  cut  hy  a 

3.     Notice    of   demand— Requisites    of—  widow,  or  any  one  claiming  under  her,  on  wild 

Adtice  of  demand  of  dower  need  not  specify  hy  landi^,  assigned  to  her  hy  way  of  dower,  before 

metes  and  hounds  the  land  out  of  which  dower  the  jiarty  is  guilty  of  waste,  must  he  left  to  the 

IS  smight.  discretion  of  the  jury,  under  the  direction  of  the 

Allans  V.  11,1,, /son,  -JOld.,  178.  Court.     Defendant,  under  the  authority  of  the 

tenant  in  dower,  cut  down  hardwood  in  a  tield 

i'    Tenant  In,  waste   by  -  The    tenant  In  of  eight  or  ten  acres,  which   he  fenced  and  cul- 

(loHci-  of  wilderness  land  having,  with  the  con-  tivated,  rendering  it  more  valuable  than  in  its 

sent  of  C.  R.,  one  of  the   reversioners,  sold  all  original  .state,  and  also  cut  a  valuable  knoll  and 

the  hardwood  timber  growing  upon  the  land  to  other  trees  outside  the  Held  for  .sale,  liavingpaid 

".  H.  H.,  and  allowed  the  same  to  be  removed  the  tenant  in    dower   .*{)(»   for    the  privilege  of 

by  the  purchaser,  contracted  a  second  marriage  doing  so.     For  the   former   the  jury  uc(iuitted 


4e7 


DYKE   LANDS. 


468 


liini ;  for  tlie  latter  tlii-y  awardctl  .4,*)<)  ilainagus. 
Vcnlict  BUHtaint-d. 

Tihis  t'/  nl.  V.  Ifaiiiri,  '2  R.  &  ('.,  .J4'2. 
Hut   Hi'o  Revised  Statiitea  (r>t|>    surios),   lap. 
94,  sec.  ««. 


DRAINAGE. 

1.  \o  right  to  use  drain -Injunction — 

Vlierc  till' duft'iidant  had  no  drain  ieadini^  from 
premises  to  the  coimiinii  sewer  on  tiie  street, 
and  the  phiintitV  prevented  al!  access  to  a  ilrain 
on  iiis  own  proi)erty  tlirough  wiiich  the  water 
might  flow  to  tile  sewer  from  defendant's 
proj)erty,  lint  defendant  proved  no  title  or 
rigiit  to  use  such  drain,  the  Court  granted  an 
injunction  to  restrain  dofemlant  not  oidy  from 
jtennitting  Ids  wa.ste  water  to  flow  on  plaintitl"s 
pro))erty,  Imt  frf>m  receiving  water  from  the 
city  water  works  until  a  suitable  drain  was  con- 
structed, the  evidence  showing  that  the  iutro- 
du<.tion  of  such  supjily,  in  the  absence  of  a 
suitable  drain,  occasioned  an  overflow  on  plain- 
titf 's  premises. 

MoU  V.  Jiurm,  R.  E.  1).,  135. 

2.  Right  of  drainage  into  public  sewer- 
'•? '^  CORPORATION,  12. 


I  made,  was  not  a  free  agent,  but  that  the  assign- 
[  ments  were   void,  as  having   been  procured  hy 
i  duress,  and  must  be  set  aside. 
'      JoiK't  ft  nl.  V.  Johns  if  nl.,  20  N.  S,  R., 

(H  R.  &(i.),  .178; 
9  C.  L  T.,  til. 

On  appeal  in  thr  Snpniw  Court  of  CiiiKuh, 
Held,  atlirming  the  jiulgnicnt  of  the  ('oiirt 
below,  that  the  nature  of  the  proceedings  luid 
the  evidence  clearly  showed  that  the  criMiiniil 
process  was  oidy  used  for  the  purpose  of  getting 
S.  to  Montreal  tr)  enable  the  creditors  to  put 
pressiu'e  on  him  in  order  to  get  their  claims 
paid  or  secured,  and  the  transfer  made  by  the 
father  under  such  circumstances  was  voiil. 
Shore ii  et  n/.  v.  Jones  e.t  nl.,  1,")  S.  C.  K.,  :)!)». 


DROITS  OF  ADMIRAITT- 
DROITS  OF  THE  CROWN 
Sec  ADMIRALTY. 


DURESS. 
Duress,  conveyances   procured  by,  set 

aside — M.  J.  S.  made  an  assignment  to  T.  M.  J. 
in  trust,  for  the  benefit  of  his  creditors,  subject 
to  a  preference  in  favor  of  J.  M.  S.,  his  father, 
for  a  large  amount.  M.  J.  S.  was  arreste<l  at 
the  instance  of  Montreal  creditors  from  whom 
he  had  purchased  goods  a  shoit  time  previously 
to  the  making  of  the  assignment,  charged  with 
having  procured  goods  under  false  pretences. 

As  a  condition  of  procuring  his  son's  release, 
the  father  was  induced  to  make  an  assignment 
of  his  preferential  claim  for  the  benefit  of  the 
creditors,  an<l  also  to  assign  for  the  same  pur- 
pose, and  for  the  purpose  of  defraying  the 
expenses  of  the  son's  arrest,  a  mortgage  which 
he  held  on  the  property  of  one  T.  M. 

Held,  that  the  father,  imder  the  circum- 
stances   under    which     the    assignments    were 


DTKE  LANDS. 
1.    Title  to,  acquisition  and  transfer  of- 

Dcfcndant  ami  three  others,  proprietors  of  dyke 
lands  in  Onslow,  agreed  to  build  a  breakwater 
in  front  of  their  lands,  for  the  purpose  of  re- 
claiming certain  land  covered  by  navigable 
water.  The  works  having  been  destroyed  liy 
freshets,  defendant,  in  consideration  of  tlie 
repayment  to  him  by  M.  of  the  money  expended 
by  him,  agreed  to  transfer  to  M.  his  interest  in 
the  undertaking.  M.  having  assented  ami  piiid 
the  amount  stij)ulated,  operations  were  renewed 
in  18.")1,  and  shortly  after,  as  the  result,  land 
began  to  form.  In  ISfi.S,  M.  conveyed  his  inter- 
est in  the  new  foi'mation  to  plaintiff',  who,  with 
the  others,  built  a  dyke  around  it,  and  received 
a  quarter  of  the  grass.  Defendant  allowed  tiie 
plaintiff  and  the  other  parties  to  expend  their 
labor  in  making  the  property  valuable,  without 
objection,  for  eleven  years  after  the  agreement 
made  with  M.,  when,  for  the  first  time,  he 
claimed  an  interest  in  the  new  lanil  allotted  tn 
M.  and  by  him  conveyed  to  the  plaiutiti',  and 
committed  the  tresspass  complained  of.  It  wns 
argued  on  behalf  of  defendant,  that  the  actimi 
of  trespass  could  not  lie,  as  the  fee  was  still  in 
him,  the  transfer  to  M.  being  invalid,  having 
been  made  by  parol,  and  there  being  no  convey- 
ance in  writing,  as  required  by  the  Statute  of 
Fraiuls. 

Held,  that  defendant,  when  he  entered  into 
the  agreement  with  his  partners  to  make  the 
breakwater,  and  commenced  the  work,  made 
himself  liable  to  an  indictment  for  a  nuisance 
for  obstructing  navigable  waters,  and,  conse- 
quently, could  neither  acquire  title  himself  to 
the  new  land  nor  transfer  any  to  M. ,  but  that 
plaintiff  having  been  in  possession  when  the  trei- 


469 


EASEMENT. 


470 


passes  W'jrc  committed,  was  entitled  to  a  verdict, 
witli  niiiiiiiial  diima^cs. 

Mahon  V.  M<C'itJ/y,  1  N.  8.  D.,  323. 

2.   Sn;  fi/vo,  ASSESSMENT,  III. 


DTXAMITE. 
Indictment  for  keeping- 

SV'  CRIMINAL  LAW,  13. 

EASEMENT. 

1.  Acquisition  of  right  of  way  by  enjoy- 
ment of-  Unity  of  possesaion — Pleading — In 

oidi'i'  to  aLi)iiire  a  riglit  of  way  by  enjoyment 
f(ir  twenty  years  it  must  lie  i)rove<l  tiiat  the 
I'liiiniant  lias  enjoyed  it  for  tiie  full  period 
wniiied,  as  of  riijhf,  anil  if  tiiere  has  been 
unity  iif  pii»ses.sion  for  all  or  any  part  of  that 
time,  the  claimant  will  not  have  enjoyed  an  of 
ri<iht  the  easement,  but  the  soil  itself.  A  de- 
fence on  tliis  ground  to  a  claim  of  right  of  waj', 
1.1  stilHciently  j)ut  in  issue  l)y  a  plea  that  the 
cliiinmnt  is  not  entitled  to  such  riglit  of  way  as 
nllegcil, 

Qmori',  whetlier  a  tenant  at  will  has  such  an 
estate  iis  will  entitle  him  to  sustain  an  action  for 
obtructing  a  riglit  of  way. 

Smith  V.  McDonald,  3  R.  &  C,  283. 

2.  Covenant  for  quiet  enjoyment  of  water 

privilege-*'^.  COVENANT. 

3.  Created  by  express  agreement— Pre- 
venting sale  of  land— Legality  -An  agreement 
liotween  tlie  vendor  and  vendee  in  a  convey- 
ance of  land,  after  setting  out  the  parcels,  pro- 
viiling  "  that  any  distance  which  may  remain 
weatwanlly  to  .1.  street  shall  never  be  heretvfter 
sold,  but  loft  for  the  common  benefit  of  Ijoth 
parties,  and  their  successors,"  does  not  create  a 
servitude  in  contravention  of  any  rule  of  law, 
l)ut  creates  an  equity  binding  on  the  successor 
in  estate  of  the  vendor,  so  that  the  person  who 
lian  tlie  estate  of  the  original  vendee  is  entitled 
to  come  into  a  Court  of  Kquity  for  its  assistance 
to  remove  a  structure  placed  on  such  land. 

McLean  v.  McKay,  L.  R.,  5  P.  C,  327  ; 

29L.  T.,352. 

I  imported  below. 

*«  Created  by  express  agreement— Con* 

struction  of  agreement  for— J.  G.  and  P.  C, 
adjoining  proprietors  in  the  Town  of  Liverpool, 
under  wliom  plaintiff  and  defendant  respectively 


claimed  for  the  purpose  of  settling  disputes  that 
had  arisen  between  them  concerning  the  line 
between  their  lands,  entered  into  a  written 
agreement  in  the  year  18()(),  settling  tiie  line  in 
dispute  and  containing  the  following  clause : 
"  And  it  is  hereby  furtiier  agreed  by  and 
between  the  said  J.  (!.  and  P.  V.  that  the  dock 
between  tlieir  wharves  on  the  eastern  aide  of 
the  aforesaid  line  of  separation  shall  forever 
remain  oj)en  as  it  now  stands,  that  is  to  say, 
that  neither  of  them  shall  t'.ll  it  up  with  wiiarvea 
or  other  incumbrances  wiiereby  the  convenience 
of  t  le  same  may  be  damaged  to  either  party. 
From  the  date  of  the  agreement  down  to  1808, 
J.  (i.  and  those  holding  under  him  had  the 
exclusive  use  and  possession  of  the  dock,  when 
•lefendant  asserted  a  right  to  use  it  under  the 
'■  agreement  and  placed  vessels  therein.  Plaintiff 
brought  trespass,  and  on  the  trial  a  verdict  was 
found  in  his  favor.  A  rule  having  been  taken 
out  to  set  the  verdict  asiile,  the  Court  were 
equally  divided. 

.Sir  \V.  Young,  C.  J.,  was  of  opinion  that  a 
u.se  in  common  of  the  dock  not  having  been  ex- 
pressly declared,  it  could  not  be  inferred. 

DesBarres,  J.,  was  of  opinion  that  tiie  exclu- 
sive use  by  J.  ({.  and  those  claiming  under  him, 
prechnled  any  inference  from  the  clause  of  the 
agreement  recited  as  to  the  existence  of  a  ten- 
ancy in  common. 

Johnstone,   E.  .T.,    and  Wilkins,  J.,  were  of 

opinion  that  tiie  rule  for  a  new  trial  should  be 

made  absolute. 

Snow  v.  Morton,  '2  N.  8.  D. ,  237. 

On  appeal  to  the  Priry  Council, 

Held,  that  the  effect  of  this  agreement  was  to 
create  an  easement  tiiat  the  dock  should  remain 
o])en,  as  it  then  stood,  for  tlie  convenience  of 
either  party  to  use  it  as  a  dock ;  and  that  if  it  was 
intended  that  one  party  should  have  a  more 
limited  right  tlierein  than  the  other,  such 
limited  easement  should  have  been  created  by 
express  words. 

Morton  v.  Snow,  29  L.  T.,  m\. 

5.  Deed  creating,  comes  within  the  Re- 
gistry Act — Plaintiff  purchased  in  1872  a  pro- 
perty adjoining  defendant's  property,  and  to  the 
north  of  it.  In  18.')9  Caldwell,  who  then  owned 
the  northern  property,  granted  by  deed  to 
defendant  the  privilege  of  piercing  the  south 
wall  of  his  building,  carrying  his  stove  -  pipes 
into  the  flues,  and  erecting  a  wall  above  the 
south  wall  of  the  building  to  form  at  that 
height  the  north  wall  of  defendant's  building, 
which  was  higher  than  plaintiff's.  This  deed 
was  not  recorded  until  1871,  and  the  plaintiff's 
solicitor  in   searching    did    not    search    under 


471 


EASEMENT. 


472 


Oh  fip/iKi/  to  the  Sii/iriiiK  Court  of  Caiiuiln, 


Calilwt'U'ti  niiiiu!  aftiT  tho  rogintry  of  tlio  dpcil  flitcli  throiij^li  ])laintifI"H  land  to  carry  otT  wntcr 
by  whirl)  tlu' title  pasxiMl  out  of  CatiUvi'irH  [xim-  from  Ww  lii){li\vay,  ami  for  tilliii{{  U])  aiiotijcr 
HcsNion  in  iHtli',  and  did  not,  tlu'rcfort',  olirn'rve  diti'ii  in  the  iiighway,  and  tliurchy  cauMing  water 
tlif  deed  civuting  the  uawi'nu'iit  in  favor  of  to  How  ovur  plaint itf'H  land, 
defendant.  Uefemlant's  northern  window  was;  Defence. — To  the  tirst  charge  :  That  the  for- 
go cloHu  to  plaintitf's  wall  that  it  was  plain  to  nier  owner  of  plaintilTV  land  helped  to  coiistnut 
one  narrowly  olineiving  it  tiiat  defendant  had  the  highway,  ami  agreed  to  the  ciit'ing  of  tiie 
no  Heparate  northei'n  wall,  and  tiic  defendant's  ilitch  for  carrying  f)tr  the  water  from  the  liigii- 
northern  wall  above  ))laintitl"M  Imilding  resting  way;  tiiat  the  ditch  had  livun  in  use  for  timt 
tijMin  plaintitr's  soutjiern  wall,  was  ohvioiis  to  purpose  for  tiiirty-scven  years;  tiiat  oociisidMul 
anyone  h.oking  from  tlie  op|)osite  side  of  the  filistriu't ions  during  that  time  iiad  lieen  renKived 
street.  I>y  the  Surveyor  fo"   tile  time  being;  tliat  the 

//(/(/,  tiiat  tlic  deed  creating  the  easement  :  ditch  follows  tlie  nututal  course  for  tlie  llnw  nf 
came  within  the  Registry  Act  as  "  afl'ecting  j  water  from  tlie  higliway  ;  and  that  the  iiittiii^' 
lands,"  tliat  jilaintitl',  however,  was  not  hound  '  eom|)laiiied  of  was  a  cleiiring  out  of  ohstnutioii* 
hy  the  registry  of  itinlSTI,  although  previous  wliidi  plaiiitiir  liad  placed  in  the  ditcli  a  slwrt 
to  his  purchase,  tlie  title  having  passed  out  of  time  hefore.  The  defence  to  tiie  Bccoud  com- 
Caldwell  in  l!S(i2,  hut  that  ]>laintilt'  must  he  plaint  was,  tliat  the  other  ditcli  was  a  ilitili 
held  to  have  liad  notice  of  the  easement  as  tlie  alongside  the  highway,  too  deep  to  he  safe,  am! 
cncroaehinents  were  jilainly  visible.  jthat  tlit^  defendant,  as  such  surveyor,  partially 

lioxH  v.  Jlniilt  r,  '2  H.  &  (!.,  44.  \  tilled  it  up,  as  he  had  a  right  to  do.    At  tlie  triiil 

'the  .ludge  excluded  the  evidence  of  defeucu  to 
the   tirst  complaint,  and    a    verdict,    iiiitlcr   his 

Jl<hl,  that  the  continuance  of  illegal  burdens  direction,  passed  for  iilaintitf. 
on  plaintiH's  projierty  since  the  fee  had  been  //p/,/,  Hrst,  that  the  long  use  of  the  drain 
acquired  by  him  «  ere,  in  law,  fresh  and  distinct  through  plaintiff's  land  was  evidence  from  wl'icii 
trespasses  against  him,  for  which  he  was  en-  ,1  j,„.y  nii{.'lit  infer  a  dedication  by  deeil,  tlumgli 
titled  to  recover  damages,  unless  he  was  bound  ,  there  was  evidence  of  an  assent  to  sucli  use  more 
by  the  license  or  grant  of  Caldwell.  1  than  twenty  years  ago.     .Second,  that  tiic  dcluii- 

2.  That  the  deed  creating  the  easement  was  |  ,iant  had  a  right,  as  such  surveyor,  to  close  .v. 
an  instrument  iv(|iiiring  registration  under  the  ,  niti.,.  the  ditches  along  the  highway,  as  a  private 
jirovisions  of  the  Nova  .Scotia  Registry  Act  (4th  projirietor  of  laml  in  the  same  situation  niiglit. 
Kev.  .Stats.  \.  S.,  c.  70,  sees.  !»  and  1!»)  and  was    Verdict  set  aside  accordingly. 

defeated  by  the  prior  registration  of  the  subse-  '  '\'\^^,  fdHowing  pi'opositioiis  were  affiniiPil  :- 
(pient  purchaser's  conveyance  for  valuable  con-  ,  That  as  to  water  not  howiiig  into  defined  oiuiii- 
siileratioii,  and  therefore  from  the  date  of  the  nds  the  flowing  does  not  warrant  the  piesunip- 
registration  of  the  conveyance  from  Caldwell  to    tion  of  a  grant. 

the  party  through  whom  plaintitF  claimed  that  \  That  as  the  owner  of  the  high  land  cannot 
the  deed  of  grant  to  defendant  became  void  at  collect  such  waters  in  drains  and  precipitate 
law  against  the  grantee  in  said  conveyance  and  tlu^m  on  the  land  of  another  proprietor  l)cl()»,  ;i 
all  parties  claiming  iliroiigh  him.  grant  may  be  iiresuined  where   this  has  Ini'ii 

3.  That  to  defeat  a  registered  deed  there  done  as  of  right  for  twenty  years,  and  tliis  nut- 
must  be  actual  notice  or  fraud,  and  there  was  no  withstanding  the  Prescription  Act,  cap.  \W,  1^- 
actual  notice  given  to  ])laintitl' in  this  case,  such    ,S. ,  4tli  scries,  sec.  '2S. 

as  to  disentitle  him  to  insist  in  e(|uity  on  his,;  That  evidence  that  use  began  prior  to  twoiity 
legal  pi'iority  acquired  under  the  Statute.  ,  years  by  consent  is  merely  evidence  against  ti;- 

I'tr  (iwyime,  ,J.,  (//.•<«•»//«;/.— That  upon  the  presumption  of  a  grant,  and  may  he  met  by 
pleadings  as  they  stood  on  the  record,  the  ,  counter-evidence  that  the  use  was  afterwards  as 
question  of  the  Registry  Act  did  not  arise,  and  ;  of  right,  kc,  for  twenty  years, 
that  as  the  incumbrance  complained  of  had  been  That  the  easement  by  parol  to  the  estalilisli- 
legally  created  in  18.")!»,  its  mere  continuance  did  ment  of  an  artificial  course,  made  more  tlw" 
not  constitute  a  tresjiasa,  and  that  the  action  as  <  twenty  yeai's  ago,  is  not  conclusive  that  tlie  su''- 
framed  should  not  be  sustained.  !  sequent  twenty  years'  use  was   not  hy  giant. 

Itoss  V.  Huiitir,  7  S.  C.  R.,  289.  i  because  such  a  right  could  not  be  conferred  I'V 

parol  alone. 

6.  Highway  —  Drainage  —  Dedication  of  That  a  dedication  to  the  public  of  an  ease- 
watercourse— Public  easement— Adverse  en- 1  ment  may  be  inferred  from  the  like  ciroHiiistaii 
joyment  —  Prescription  —  Action  of  trespass  ces  as  warrant  the  inference  of  a  grant  in  the 
against  a  Surveyor  of  Highways  for  cutting  a    case  of  a  private  person  enjoying  such  casement. 


m 


EJECTMENT. 


474 


Thiit  thf  surface  iiiitl  ditclifH  of  a  liife'liwiiy        AHiniRMl  on  appeal  to  tlie  Supreme  Court  of 

niiiv  l>f  altfie.l  without  lialuUty  to  an  action  l>y  Caiuula.  _ 

•,...,  AV/f  V.  /i/a'*',  U  S.  (  .  K.,  <40; 

tlif  iiiljaccul  i.iopnetorH.                                           i  -  /  •    i    -i'     -iiwi 

//acWvoM  V.  Ilarri'ow,  4  K.  &  (!.,  338.  i  t  .  U.  I.,  .««>. 


:.   Kleht  of  waj  -Obstruction  of-Kstop- 

pel-i'liintill'iind  one  of  tlie  defemlantH  divitled 
ii  lot  of  livud,  of  wliich  tliey  were  tenants  in 
cimunoii,  into  two  erjual  parts,  and  executed  a 
Ixmil  or  iiyreeiiuMit  in  the  penal  sum  of  .*2tM),  for 
till'  piirpiwe  of  securing  toeacii  of  tlie  parties  the 
fico  w.xe  of  idl  roads  existing  at  the  time  on  eitlier 
(if  tiiii  lots  of  land.  I'laintitr  having  brought  an 
action  for  an  alleged  obstruction  of  quo  of  the 
niiiiln  referred  to,  and  having  j)roveil  no  title 
aput  from  tlie  l)ond, 

H'ltl,  tliat  the  action  was  wrongly  brought, 
pliiintitF's  remedy  being  liy  action  on  tlie  Ixmd. 

Alio,  that  plaintitl'waa  est<ipj)ed  liy  thoagree- 
muiit  from  setting  up  prescription,  but  defen- 
(iiiin  WHS  not  estopped  from  saying  that  tiiere 
was  no  grant. 

I'll'  'I'iiompson,  .T.  — The  words  in  the  bond 
dill  lint  amimnt  to  an  easement,  but,  at  most,  to 
a  liuouKO  or  covenant  not  to  obstruct  the  way. 

Alio,  plaintiff  might  have  proved  a  title  to  tlio 
way,  independent  of  the  agreement. 

Whitman  v.  Jonen  ft  a/.,  5  R.  &  (1.,  443. 

I 

8.  Right  to  maintain  drains  leading  A'oni 

private  property  to  drains  on  public  highway 
—Obligation  of  municipality  to  preserve  pri- 
vate rights. 
Su:  CORPORATION,  12. 

9.  User  of  a  way  to  which  a  party  has 

no  legal  right  not  sufficient  to  entitle  to  dam- 
ages for  an  obstruction— Reformation  of  deed 
—  Joinder  of  parties  —  Damages  —  Plaintiff 
souglil  to  recover  damages  against  defendant  for 
obsinicting  him  in  the  use  of  a  way  adjoining 
plaintiff's  property,  which  he  claimed  to  enjoy 
by  virtue  of  user  by  himself  and  those  under 
whom  he  claimed  for  a  period  of  upwards  of 
folly  years.  No  use?  as  claimed  was  proved  at 
till'  trial,  but  it  appeared  that  plaintiff  had  nol 
legal  right  to  use  the  way  as  his  own,  nor  any  ; 
license  from  the  owner  to  do  so.  It  was  conten- 
ded that,  admitting  this  to  be  so,  plaintiff  being ! 
in  posaession  of  the  way,  or  the  user  thereof 
could  maintain  his  action  against  defendant, 
who  was  in  no  better  position,  for  interrupting 
him  in  tlie  user. 

ffelil,  that  the  mere  uiser  by  plaintiff  of  the 
way  in  common  with  other  parties,  in  the 
absence  of  any  legal  right,  would  not  enable 
him  to  recover  damages  against  defendant  for 
obstructing  the  way. 

Ells  V.  Mack,  7  R.  &  G.,  222; 
7  C.  L.  T.,  326. 


10.    Water  power  -  Interference  with  — 

Defendant  demi.sed  to  the  plaintiti's  a  water  power 
derived  from  the  Dartmouth  Lakes  from  whicii 
water  was  also  drawn  for  the  supply  of  a  caiuil. 
The  power  deiniseil  was  to  be  of  no  less  extent 
than  plaintiffs  then  enjoyed,  and  as  much  more 
as  defendant  could  spare  after  jiroviding  the 
water  necessary  for  the  working  of  tlie  canal. 
Defendant  having  opened  the  sluice  of  the  dam, 
which  retained  the  water,  not  for  any  needed  use 
of  the  canal, 

//f/d,  that  the  water  so  expended  was  not 
expended  within  the  exception  in  favor  of  the 
canal,  and  was  a  violation  of  the  plaintiffs'  right 
to  all  the  water  with  that  exception. 

Alw,  that  defendant,  on  an  application  for 
attachment  for  bread,  of  injunction,  could  not 
be  permitted  to  raise  the  (jue.itiou  whetlier  tlie 
interference  on  his  part  was  or  was  not  practi- 
!  cally  injurious  to  the  plaintiff's. 
The.  Star  Mauii/acturiinj  Comjiany  {Limilal) 
V.  Fairbanks,  3  N.  S.  D.,  40. 


EASTERN  EXTENSION  RAILWAT- 
See  CONTRACT  31. 


EDUCATION- 
See  PUBLIC  INSTRUCTION. 


EJECTMENT. 
1.    Administrator  cannot  revive  action  in 

ejectment  where  freehold  involved— In  eject- 
ment where  the  title  to  the  freehold  is  involved 
the  administrator  of  the  deceased  plaintiff  is  not 
entitled  to  revive  the  action. 

Henry  v.  McNeil,  2  Thorn.,  .•5j7. 

2.    Administrator    purchasing    estate— 

Deed  to  him  valid  in  law — The  father  of  defen- 
dants died  intestate,  and  administration  was 
taken  out  by  Donald  McLeod.  Previous  to 
intestate's  death  a  judgment  had  been  recorded 
against  him,  which  was  revived  against  his  ad- 
muiistrator,  and  the  real  estate  sold  thereunder. 
i  At  the  sale,  the  administrator  purchased  the 


475 


EJECTMENT. 


476 


land,  anil  subsequently  executed  a  deed  of  it  to 
the  plaintiff.  IVevious  to  executing  this  deed, 
the  iKlministi'iitor  ohtained  a  letter  'if  license  to 
sell  the  real  estate,  under  wiiich  the  same  lands 
were  sold  and  bought  in  hy  plaintiff,  to  wiiom 
the  ailniinistrator  gave  a  deed.  The  consider- 
ation ex))ie«seil  in  tiie deeds  was  not  actually  paid 
hy  plaintiff.  Both  the  deeds  to  him  bore  date 
same  day,  and  were  recorded  tiie  same  day. 
Plaintiff  brought  ejectment  against  the  occupiers 
of  the  property,  and  they  defended  on  the  gtound 
that  phiintiff  had  no  title,  as  ho  claimed  through 
the  administrator,  who  was  debarred  l)y  the 
relatiim  he  bore  to  the  real  estate  from  giving 
any  title  to  it. 

H(l(l,  tliat  although  botii  deeds  could  be  set 
aside  in  equity,  on  application  of  the  lieirs  or  cre- 
ditors, yet,  until  they  were  set  aside,  the  heir.s 
could  not  resist  a  recovery  in  ejectment,  and  that 
the  verdict  for  plaintiff  must  be  sustained. 

McLeodw  (links  ct  uL,  1  X.  S.  D.,  257. 

3.  Administrator  purcliasing  the  estate- 
Deed  valid  at  law — The  plaintiff,  as  adminis- 
trator to  Hugh  McLean,  sold  certain  lands  at 
public  auction  to  one  Harding,  giving  him  a 
deed  thereof,  and  on  the  same  day,  Harding  re- 
conveyed  the  same  lands  to  plaintitF.  Tliere 
was  no  evidence  to  show  that  the  plaintiff  did 
not  act  in  good  faith  and  for  the  benefit  of  the 
estate.  Plaintiff  brought  ejectment  against 
defendants,  who  wore  brothers  of  Hugli  McLean, 
and  were  in  possession  of  the  property,  and  they 
resisted,  on  the  ground  of  his  having  no  title, 
contending  that  he  could  not  acquire  title 
through  himself  as  administrator. 

Held,  on  the  principle  of  McLeod  v.  Qil/iefi, 

1  N.  S.  I).,  257,  that  pLvintiff's  title  was  valid 

at  law. 

Smyth  V.  McLean  el  al.,  1  N.  S.  D.,  310. 

4.  Conventional  line— Conflicting  evidence 

— New  trial  —  Plaintiff  contracted  in  185.3  to 
purchase  several  lots  of  land,  and,  as  being  part 
of  one  of  these  lots,  took  possession  of  the  hand  in 
dispute,  erected  fences  on  it,  and  built  a  house,  in 
which  he  resided  for  several  years.  At  an  early 
period  he  pointed  out  to  Forbes,  the  adjoining 
proprietor,  the  line  by  which  he  claimed,  and  ex- 
plained the  reasons  and  evidence  on  which  he  did 
so.  After  defendant  had  continued  in  undisturb- 
ed possession  for  six  years,  Forbes  executed  a 
deed  of  land,  embracing  that  occupied  by  defend- 
ant, to  plaintiff,  the  latter  being  cognizant  of  all 
the  facts.  Plaintiff  then  brought  ejectment.  On 
the  trial  a  question  arose  whether  the  piece  of 
land  which  Forbes  was  disseised  passed  under  his 
deed,  and  the  presiding  Judge,  on  motion,  per- 


mitted the  name  of  Forbes  to  bo  added  us  a, 
co-plaintiff.  A  verdict  having  been  found  for 
plaintiffs,  a  rule  was  taken  out  to  .  t  it  aside, 
and  for  a  new  trial,  on  the  grounds  that  the  land 
of  which  Forbes  was  disseised  eoiiid  not  pass 
under  his  deed  ;  tiuit  the  amendment  at  tlie 
trial,  by  adding  the  name  of  Forbes  as  a  plaiiititr, 
was  made  improperly,  and  on  other  grounds. 
Tiiere  having  been  conflicting  evitlence  as  to  a 
conventional  line,  and  tiiere  being  reason  to 
believe  that  the  wlude  case  might  lie  nioro 
thoroughly  brought  out  in  second  trial,  for  this 
cause,  as  well  as  other  principles  involved,  tlie 
rule  for  a  new  trial  was  nuide  absolute. 

Wheelock  v.  Jfori-iioii,  1  N.  S.  1),,  .'i;)'.'. 

5.  Deed  taken  to  Infiint  son  of  party  wlio 

goes  into  possession — Son  after  coming  of  age 
deeds  to  third  party —  Objection,  that  deed 
made  by  party  out  of  possession,  overruled— 
l)efen(hint  agreed,  in  18(>2,  to  exchange  land 
witii  J.  L.  and  W.  L.  He  deeded  certain  lands 
to  them,  but  instead  of  taking  a  deed  from  tliem 
to  himself,  he  had  the  deed  made  out  in  favor 
of  ills  infant  son,  R.  F.  J.  This  deed  was  re- 
corded on  the  day  of  its  execution,  though  the 
grantee,  R.  F.  J.,  was  not  present  at  its  execu- 
tion, and  there  was  no  evidence  that  it  was  ever 
delivered  to  him  personally.  Defendant  wunt 
into  possession  at  once  and  continued  in  posses- 
sitm  until  action  brought.  R.  F.  J.,  shortly 
after  coming  of  age,  in  1875,  executetl  a  deed  of 
the  land  to  plaintift,  who,  after  making  demand 
of  possession,  brought  an  action  of  ejectment 
against  defendant. 

Held,  that  the  deed  to  R.  F.  J.  conveyed  title 
to  him,  and  that  the  non-suit  ordered  on  the 
ground  that  R.  F.  J.  was  out  of  possession  wlien 
he  deeded  the  land,  defendant  holding  adversely, 
could  not  be  sustained. 

Wilkins,  J.,  dUsentimj. 

Gammon  v.  Jodrey,  2  R.  Si,  C,  .114. 
Questioned  in  McDonnell  et  al.  v  McMnxftr, 

3R.  &G.,37i'. 

6.  Defence  as  to  part  of  land  claimed- 

Discontinuance  by  plaintiff  as  to  residue- 
Costs— Where  a  defendant  in  ejectment  first 
pleaded  denying  the  plaintiff's  right  to  the  pos- 
session of  the  whole  of  the  land  claimed,  but 
afterwards  obtained  leave  to  amend  his  plea,  so 
as  to  limit  his  defence  to  a  jxirt  of  the  land  only, 
and  the  plaintiff  then  signed  judgment  for  the 
residue,  and  discontinued  as  to  that  part  cover- 
ed by  the  plea. 

Held,  that  the  plaintiff  was  entitled  to  costs 
on  his  judgment  for  that  portion  of  the  land 
disclaimed  by  the  amended  plea,  and  the  defen- 


477 


EJECTMENT. 


478 


(lant  to  juilyiiifiit  with  costs  for  that  portion  for  ;  contnulicteil  parol  evidence  that  I'lirdy  liad 
mIucIi  he  (Icfeiuk'd.  !  piircliasod  tliu  land  for  the  licnelit  of  defendant's 

Fui'i-lmiiks  V.  /Mil,  1  Old.,  l.'{.  fatiier,  wlio  had  paid  consideraidu  sums  on  ac- 
count of  the  i)urchase  money.      After  the  death 

I.  Defence  describing  a  different  lot  to  "f  <l'--ft'><li"«t's  father,  I'urdy  agrce.l  to  convey 
that  claimed- Where  in  ejeclnienl  tiie  defend-  »''«  '"'"I  t"  pl'imtdl ;  and  it  was  ni  ea.lenco 
ant,  hv  his  plea,  purports  to  defend  for  a  part  of  ,  ll"it  plaintiff  held  the  land  for  tiie  l.enetit  of 
tiiolanaclainiedintiieplaintifl'swrit,  luainfact  '•*'"f'^"'li"i<.  t'"'"  i"  poi-st^^^i"!'  "f  tiie  property, 
(lesciil-cs  a  ditlcrent  lot,  the  plaintiff  will  he  ;  that  he  was  to  give  him  a  dee.l  f)f  it  when  he 
Liilitled  to  judL'Mient.  ]  paid  liini  wiiat  he  owed   iiin\,  and   tliat  plaintifT 

l>,r  Bliss,  J.,  in  MrMast<rx  v.  flmhnm,  2  p*''"  t"  '"^^'e  ^lie  hay  and  lialf  tlie  pasture  for 
Tiiomson,  417.  If  such  plea  be  put  in  with  the  i"t'-'''t-'«<- ;  '"'t  ""  writings  pa.ssed  l)etween  tiic 
ilesinn  of  misleading,  I  will  endeavor  to  make    P"'''«S'     I'laintifT  receive.l   part  of  tlie  hay  ami 


tiie  attorney  ))ay  ihe  costs  out  of  his  own  jiocltet. 
Hadly  v.  Sherman  it  at.,  i  Tlioni.,  416. 

8.  Disclaimer   Where  defendants  In  eject* 

nieiit  were  not  ])iit  in  possession  hy  tlie  plaintitl's 

(e.veculors)  or  their  testator, 

//</(/,  tliat  the  doctrine  of  disclaimer  did  not 

apply. 

I'attirioii.  U  III.  V.  MvPhirxoH  it  at., 

1  R.  kC,  p.  IHt. 


id  pasturage  on  the  pro))erty,  and  before  action 
was    brought    defendant   tendered    to    him    the 
i  principal  money. 

Held,  that  the  equitable  defence,  based  upon 
the  above  facts,  must  j)revail. 

Mllner  v.  liiiKjuno'l,  K.  E.  1).,  12.3. 

13.    Injunction  to  restrain  action  at  law 

where  claim  raised  therein  had  been  adjudi- 
cated upon  on  application  for  writ  of  assist- 
ance— The  defendant,  .1.  ('.  .•<.  Miller,  mortgaged 
certain  property  to  W.  ('.  King,  whose  executors 


9.   Ejectment  and   foreclosure,  distinct  ,      ,      ,    ,  ,  r  n    u-        .1 

,.  c,       .        I.  J     1       i-  1        1      1  foreclosed  tlie   mortgage,  J.  \\  .  K.ing,  the  sur- 

proceedings— Service  of  declaration  and  order  ^    f  ,  ■        , 

,     ,        ,  -  ^  •     ^1      ..,  viving  executor  of  tlie  mortgagee,  I )econuug  the 

—In  toreclosure  of   mortgages   in  the  Supreme  °  " 


rtgages   in  the  ^up 
Court,  by   ejectment,    the   ejectment  and  fore- 
closure  are  distinct  proceedings,  and  the  latter 
may  he  set  aside  for  irregularity,  without  dis- 
turbing the  former. 

The  declaration  in  ejectment  must  be  served 
upon  tiie  tenant  in  possession,  and  the  order  of 
foretlosure  and  sale  upon  all  the  parties  having 
equitable  interests  in  the  premises. 

Maytitw  V.  l<\n,  James,  108. 

10.  Evidence  conflicting  —  Verdict  sus* 

tained— Action  of  ejectment  between  adjoining 
proprietors,  the  questions  being  entirely  matters 
ut  fact,  and  the  jury  having  found  for  the  plain- 
till,  although  there  was  sufficient  evidence  to 
justify  a  verdict  the  other  way,  if  they  had 
thought  fit, 
Hdd,  that  the  verdict  should  not  be  disturbed. 
Watkf.ret  al.  v.  Bayem,  S  N.  S.  D.,  270. 

11.  Identity  of  lot- What  sufficient  proof 

of— Proof  that  witness  knows  the  land  in  dis- 


purchaser  at  the  Slieiifl's  sale.  Defendant  re- 
maining in  pos-session  of  the  mortgaged  premises 
a  rule  ni'ii  was  granted  for  a  writ  of  assistance 
to  put  the  purcha.ser  in  pos.session.  No  cause 
being  shewn  tlie  rule  was  made  absolute  and  a 
writ  issued,  wider  which  the  property  was  de- 
livered to  ,1.  W.  King.  Defendant  then  brought 
an  action  of  trespass  against  the  iSherift'  and  J. 
\V.  King,  whereupon  a  rule  tii-ii  was  taken  for 
an  injunction  to  restrain  the  action.  Defendant 
opposed  the  rnle,  contending  that  the  property, 
of  which  he  had  been  in  possession,  was  not  in- 
cluded in  the  mortgage ;  but,  after  a  full  hearing 
of  the  cause,  the  rule  for  the  injunction  was 
made  absolute.  .J.  \V.  King  then  put  the  plain- 
titf,  Mosher.  in  possessif)n  of  the  land,  and  the 
defendant,  J.  C.  8.  Miller,  brought  an  action  of 
ejectment,  setting  up  tlie  claim  which  this  Court 
had  previously  decided  against  him,  namely, 
that  the  lands  claimed  were  not  included  in  the 
mortgage.  The  present  suit  having  been  insti- 
tuted to  restrain  the  action, 

Held,  that  the  defendant  could  not  resort  to 
pute ;  that  defendant  lives  on  it,  with  proof  of  ^^,3  action  of  ejectment  at  com.non  law,  and 
two  of  the  boundaries,  held  sufficient  proof  in  '  t^ere  claim  the  hind  to  which  this  Court  had 


ejectment  of  the  identity  of  the  lot  claimed. 

McXair  v  Munro,  James,  340. 

12.  Equitable  defence  —  Verbal  agree- 
ment as  to  payment— Tender  before  action  — 


decreed  that  he  was  not  entitled,  and  that  the 
action  must  be  restrained. 

^fo8her  V.  Mit/er,  R.  E.  D.,  279. 

14.   Judgment  recorded  against  party  to 


1  laintiff  brought  action  of  ejectment,  under  a  '<  whom  property   conveyed  merely  as  a  con- 
deed  from  one  Purdy,  but  it  appeared  from  un- 1  duit  pipe  to  convey  property  to  a  third  party 


479 


EJECTMENT. 


480 


— Property  not  bound — Where  a  deed  of  i-eal 
estiite  WUM  jnupiired  and  executed  to  give  title 
to  |{.,  l)iit  K.  failed  ti)  coiniilete  the  iiuifhiise, 
and  subse(juently  H.  and  <!.  purchased  the  real 
estate,  'Mid  by  agreement  between  the  parties, 
the  deed  to  R.  was  recoided  simultaneously  with 
a  deed  from  1{.  to  H.  and  (!.,  in  action  of  eject- 
ment by  purchaser  at  Slierilf's  sale,  untler 
judgment  recorded  against  R,  previously  to  the 
recording  of  the  al>ove  conveyances, 

Jldd,  that  R.  was  a  mere  conduit  pipe  to 
convey  title  from  tlie  vendors  to  H.  and  (J.,  and 
tliat  tlie  judgment  against  him  did  not  attach  to 
the  real  estate  in  (juestion. 

Oii;„  v.  Lynch,  '2  R.  &  C,  400. 

15.  landlord  and  tenant  —  Estoppel — 

Plaintiff's  testator  C.  C  took  a  conveyance  of 
land  from  M.  ]'.  M.,  paying  tKX)  for  the  land 
at  the  reijuest  of  defendants  .1.  L.  and  R.  L. 
who  had  ])reviously  occupied  and  continued  to 
occupy  the  land.  Plaintiffs  having  l)rought  an 
action  of  ejectment  to  recover  the  land  from  the 
defendants,  pi'oduced  two  witnesses  who  swore 
that  defendants  had  paid  money  to  and  worked 
for  C.  C.  in  payment  of  rent ;  while  one  of  thf 
defendants  J.  L.  swore  that  defendants  never 
paid  rent  but  interest,  and  that  they  wei-e  to 
repay  the  t'KK)  to  C.  C,  but  that  no  time  for 
repayment  was  fixed. 

Held,  by  the  Court— acting  under  a  rule  nisi 
to  set  aside  a  verdict  taken  by  consent  —with  the 
power  of  a  jury  to  draw  inferences  from  the 
facts,  that  the  relation  of  landlord  and  tenant 
existed  between  C.  C  and  the  defendants  J.  L. 
and  R.  L.,  and  that  conseciuently  they  were 
estopped  from  disi)uting  liis  title. 

Crow  ef  al.  v.  Loirdin  el  al.,  2  R.  &  C,  78. 

16.  Lien  for  unpaid  purchase  money- 
Notes  given  in  payment— Indorsee  of  notes 
does  not  obtain  lien — S.  P.  bought  land  from 
H.  F.,  and  paid  for  it,  but  did  not  take  a  deed 
of  it.  Subse(juently  S.  P.  agreed  to  sell  to 
M.  v.,  Sr.,  but  by  agreement  among  the  parties 
the  deed  was  made  out  to  M.  C. ,  Jr.  S.  P.  was 
never  paid  for  the  land,  but  took  notes  from 
M.  C,  Sr.,  which  he  subsequently  assigned  and 
indorsed  to  the  father  of  J.  P. 

Held,  in  an  action  of  ejecCment  brought  forty 
years  afterwards  against  J.  P.,  who  claimed  the 
land  by  virtue  of  an  assumed  lien,  that  no  lien 
ever  existed  in  S.  P.,  as  he  never  had  a  title, 
and  that  even  if  there  had  been  a  lien,  and  even 
if  it  could  have  been  transferred  by  the  indorse- 
ments of  the  notes  from  S.  P.  to  the  father  of 
J.  P.,  it  could  not  pass  to  J.  P.,  but  to  the  ex- 
ecutors of  his  father. 

Mtayher  et  al.  v.  Paidin  et  al.,  1  R.  &  C,  79. 


17.  Limitations, Statute  or-1806,  c.  12, 8.9 

-Omission  of  in  4th  R.  S.— I'laintiffs'  tcstntdi 
took  a  deed  from  tiie  father  of  dcfendaiil.s  in 
184(i,  bnt  the  grantor  continued  in  jiosM'-ssjon 
until  his  death,  and  his  children  after  him  diiwn 
to  the  time  of  action  hrougiit  in  1S(J9. 

IL/d,  that  the  .Statute  of  Limitations  was  a  liai- 
to  the  action  of  ejectment,  and  that  section  !)  di 
the  act  of  ISOti,  cap.  12,  giving  parties  five  years 
after  the  ])assing  of  that  act  to  bring  action,  not- 
witiistanding  the  expiration  of  twenty  ycais, 
<lid  not  apjily,  having  ceased  to  exist  and  heen 
omitted  in  the  R.  S.,  4th  series,  whicli  came  iiitu 
operation  in  May,  1H74. 

I  PatlersoH  et  hI.  v.  Mrl'herxnii  if  iil., 

I  I  R.  &  ('.,  llti. 

18.  Mortga&;or  cannot  maintain  ejectment 

after  failure  to  perform  conditions  in  mortgage 
without  re-conveyance — The  plaintiff  in  cjcft- 
ment  claimed  under  a  sheriff's  deed  to  liiiii  a" 

I  trustee  of  his  sister  M.  and  ''Or  children.  On 
the  same  date  on  which  the  deed  was  cxeculeil 
plaintiff  executed  a  mortgage  of  the  .same  lamls 
to  C.  H.  M.  B.,  the  condition  of  which  was  tiiat 
if  the  principal  and  interest  were  paid  in  ihh- 
year,  the  mortgage  should  be  void.  The  prin- 
cipal and  interest  were  not  paid  until  after  tliu 
expiration  of  the  year,  when  they  were  paid  liy 

I  M. ,  and  an  assignment  of  the  moi'tgage  made  to 
her  children,  J.  M.  and  F.  M. 

Letters  of  guardianship  of  the  children  were 
granted    to   the  defendant,    who   collected  the 

I  rents  of  the  property. 

Held,  that  the  conditions  of  the  mortgage  not 
having  been   fulfilled,    in    the   absence   of   any 

I  re-conveyance  to  the  plaintiff,  the  latter  coukl 
iu)t  maintain  ejectment. 

j  Mahon  v.  Gannon,  7  R.  &  (i.,  '2\S. 

19.  Motion  to  stay  proceedings  in  action 

against  Officers  of  the  Crown  refused— l>y  Re- 
vised .Statutes,  Chapter  lid,  section  1."),  "The 
financial  and  general  management  "  of  the  Nova 
Scotia  Hospital  for  the  In.sane  is  "vested  in  the 
Commissioner  of  Pnblic  Works  and  Mines,"  and, 
by  section  47  of  the  same  Chapter,  the  title  to 
the  property,  and  the  lauds  l)elongingor  attaciied 
to  the  same,  "  is  confirmed  and  vested  in  the 
Commissioner  of  Public  Works  and  Mines,  for 
the  time  being,  and  his  successors  in  office,  in  fee 
simple  for  the  purposes  and  uses  of  sucli  hospi- 
tal." An  action  of  ejectment  having  been  brought 
to  recover  possession  of  the  premises,  a  motion 
was  made  to  set  aside  the  writ  and  proceedings 
or  for  a  perpetual  stay  of  proceedings,  on  tlie 
grounds: — 1st.  Because  such  action  will  not  lie 
against  the  officers  of  the  Crown  or  (iovern- 
ment,  and  cannot  be  maintained  agaiust  them 


481  EJECTMENT.  482 

ill  luspect  of  sucii  inopurty  11.S  that  hirmI  fcjr.      23.    E(|iiitablc   defcncc   In   ojcclment- 

•Jnil.     lieciiuso  such  iictioii  ami  jiiocueiliiigs  tan-  I'laintiflF  in  ojt'utiuuiil  i:laiiiie(l  titli;  uiidor  a  deed 

iiui  lie  taken  against  tliu  Crown  ami  its  oHiceis.  from   iii.s  father.     Defendant  claimed  iimler  an 

.'tril.     Huoanse  tlie  dufendants  hold  the  property  unregistered  agreement  for  a  twenty  years'  lease 

siii'il  for  lierein  as  the  oHieer.s  of  the  Crown  and  j)rir)r  to  tlie  deed,  of  wiiich,  he  alleged,  i)laintitl' 

(icivciiinicnl  anil  not  otherwise.  had  notice.     Tlie  deed  was  recorded. 

The  motion  was  refused.  //</(/,  tiuit  tiic  defence,  if  good,  was  an  ei|uit- 

S'liih/i,  tiiat  where  the  Act  vests  the  jiioperty  ahle  defence  oidy,  and  coidd  only  l)e  pleaded  as 

ill  tlie  otlicers  of  the  Crown,  ejectment  to  test  such. 

tlic  title  will  lie.                                                                j  ^^f".l:l  V.  ''^'iiihl,  5  R.  &  ( !.,  490. 
Kiariiiy  v.  Vrci/mait  tl  a/,,  4  R.  &  (i.,  '2'28. 

I    24.    Exchange  of  lands  by  verbal  agree- 

20.  Xon-Joinder  of  parties  entitled  ^h  «^'f~^'^'^^'^^^'^^^''^^^^^^^ 

,r      1-  i        i    ■      1     'iM  Defendant  limited  his  defence  to  a  portion  only 

tenants-iii-common— Verdict  auatained  - 1  hree      ,  ,  ,  ,  i         i     i      i    i 

,.,       ,  .   ,.„.    .  ..  c    •     i        ^  of  the  land  soUL'lit  to  he  recovered,  and  i)lea(le(l 

of  the  iilaintins  m  an  action  of  ejectment  were  "  r  i         i       i     i 

,      ,      ,  ^1         i-^i    1  ,     .1  •         c    an    eiMiitalile   iilea   to   tlie   etlect   that    lie    had 

ilcarlv  siiowii  to  he  entitled  to  the  i)ossession  or  '■  '  ■.,,,.  •       • 

,,',,.,  ,  ,     .  ...     obtained  iKKSsessiou  of  the  land  in  question  in  a 

tlie   liiiicl   claimed,   us  tenants-iii-conimon   with  ,  '  ,  ,  .  ,      i   •     -ir, 

,  ,  .^    ■   •      I   •      ^1  ..•  verhal   exchange   between    him   and    plaintitl  s 

otlier.s   who  were  not   joined  lu    the   action   us  ,  "  ... 

,  .  ,.u-  father,  in  consideration  of  a  certain  otiier  piece 

iiliuntitis.  I  ,  ,     ,  .  ■     p    1  1.1   ■ 

,,,,.,.   ^,  ,.   .       ,.  ,  ,        ,   .      of  laud  transferred  by  iiiiii  to  the  father,      rlain- 

//<''(,  that  tiie  verdict,  Miiicli  was  for  plain-  ;  .     ,     ■        ,  ,  <•  r  i 

. .„  , ,       .  ,  .       .  ,  ^,  1  ii    .    lift  replied,  that  the  exchange  arose  out  ot  talse 

titts,  ciiuld  r.ot  lie  set  aside  on  the  ground  that  '         ',  °  .  ,.,<., 

.1        .         ,     .  .^    •   •      1  and  fraudulent  misrepresentations  of  defendant, 

(itlu'r    teiiants-in-coinmon    were   not   joined,  or  ,     '        ,.        ,        ,  ,,    ,  , 

.,    .  .,  1-.   11       »    i   .     .1  ••  :  and  was  afterwards  repudiated  ami  canceUed  by 

that  the  verdict  did  not  state  the  iiroportioii  in  ,  .        -  ,  .  , 

,.  ,      ,  .  ...r  .-,1    1    .1  1-        r    his  father.      It  appearing  from   tlie   evidence, 

wlikli  iilaiiitifs   were  entitled,  the  practice  of  ,  ,  ,      ,  .      .  ,. 

,,■    f      .     ,.„.    •        •      ,,  •  '  t         ,,       tiut  after  the  exchange  both  parties  ininiediate- 

tlu.t  (ouit    ditlering  in  tins   resiiect   from  the  ,  °    .         '.     ,    . 

,,,.,..  ;  \y   entered  into  iiossession   of   their   respective 

l-.iiirli.'ih  jiractice.  I   •'  '  ■      ,   ,       ■    •  i 

,.„■     ,    ,        ^,     •  ,  ,,     1  ,  ^,  I  lots,  that  defendant  exercised  dominion  over  the 

Uli^  it  a'.  \.  Colonial  Marht  Comiiauy,  '         '  ,       ,.,  , 

.,  .,     „   „     .„.     land  in  e(mlrover.sy  for  tifteen  years  up  to  the 

"  i  time  of  action  brought,  and  including  five  years 

,  subseiiuent  to  tiie   exchange   during  which  tiie 

21.  Devise  to  executors -Power  to  sell  father  live.l,  that  tl.e  father  died  without  ever 
given  tliera,  but  no  interest -They  cannot  i,,,,.;,,^,  ,„.,,,^.  ,j„^.  .uteinpt  to  reclaim  it,  that 
maintain  ejectment- A  devise  that  executors  i,,„  plaintiff  was 'in  possession  of  the  land  trans- 
.slimilil  sell  lauds,  investing  them  with  u  power  to  £^.,.,.^,1  j,,  ,,i^  f.^.g,.  .^t  the  conimeiicemenl  of  the 
sell,  hut  conveying  to  them  no  interest,  will  not    .^^tioii,  and  that  defendant  bud  not  in  fact  made 


inable  them  to  maintain  ejectment.  It  can  make    ,„,y   f.^ij,^,  ,„.  fpaudulent   niisrepresentutions  as 
111)  ilitleience  that  the  power  is  to  execute  pro-    alleged 

per  cmiveyances,  us  well  as  to  sell.  ,      //,,/,/'  tji.^t  1,;^  e(juitable  plea  was  established, 

mUkims  (I  at.  V.  My,,.,  2  N.  .S.  D.,  \",.    that  he  was  entitled  to  retain  all  the  land  trans- 
ferred to  him  by  plaintiff's  father,  and  conse- 
22.    Equitable  defence  —  Fraud  —  Plead-   quently  that  there  should  be  u  general  judgment 
ings— 111   an   action   of   ejectment,    defendant    in  his  favor. 

plwuleil  an  eijuitable   plea,   setting  out  certuin        The   finding   of  fraud   by    the  jury  held  iiii- 
(leeils  as  the  links  in  his  title.     At  the  trial,  ;  warrunted. 

pliiiiititr  sought  to  attack  one  of  these  deeds  on  \  litll  v.  Carriifhtr-.,  '2  N.  8.  1).,  1. 

tlie  ground  that  it  was  without  consideration 

ami  a  fraud  on  third  parties.  25.   identifjing  land  lu  dlspute-Vcrdlct 

If'Ifl,  that  plaintiff  should  have  replied,  al-  for  defendant  in  ejectment  upheld  where  there 
legiiig  the  fraud,  and  not  having  so  pleaded,  was  no  evidence  to  identify  the  land  in  plaintiff 's 
could  not  adduce  it  in  evidence.  |  deed  with  that  in  dispute. 

The  defendant  had  been  for  some  time  in  pos-  Wood  v.  Smith,  4  R.  &  (i..  37. 

session  of  the  property  in  suit,  ami  had  made 

large  payments  to  the  parties  through  whom  he  i    26.    Limitations,  Statute  Of- Deed  by  In. 

claimed,  beside  outlays  in  improvements.  fant— Removal  of  disability— R.  M.,  in  183."), 

liM,  that  having  by  his  plea  placed  himself  i  conveyed  a  portion  of  his  land  to  his  sons,  W. 

uniler  tlie  equitable  jurisdiction  of  the  Court,  he   and  K.,  and  about  the  same  time  allowed  them 

sliimld  be  protected  to  the  extent  of  his  actual    to  enter  into  possession  as  tenants  at  will  of  the 

payments  and  outlays.  balance  of  his  projjerty,  including  the  house  in 

Kiunear  v.  Hati-kon,  2  N.  S.  D.,  78.  |  which  he  had  resided.     R.  M.   died   in  1844, 

16 


483 


EJECTMENT. 


484 


leaving  several  cliiUlren,  of  whom  plivintiif  was 
the  youngest  In  1H47,  the  rest  of  tlie  lieirs, 
inchiiling  p'.iiintili',  wlio  was  tlien  undei'  age, 
conveyed  to  \V.  &  K.  all  tlieir  interest  in  the 
property.  In  ISTO  tlie  plaintitV  lirought  s\iit  for 
a  portion  of  the  lands  in  (juestion,  alleging  that 
the  <lee(l  heing  executed  during  her  minority, 
was  alwolutely  void  ai.d  of  no  etl'ect. 

//</»/,  that  although  the  possession  of  W.  &  K. 
must  he  deemed  to  he  adverse  from  the  year 
1847,  when  tlie  heirs  united  in  giving  them  a 
deed,  and  that  therefore  plaintitt's  right  was 
barred  on  that  ground,  yet  that  under  see.  9  of 
20  Vie.,  chap.  I'i,  having  brought  her  action  in 
ISTlt,  anil  therefore  within  five  years  from  IStiO, 
she  was  entitled  to  i-ecover. 

Jfi'Kiniton  d  al.  v.  liroilii', 
•A'S.  S.  1).,410. 


27.  Party  in  possession  agrees  to  pur- 
chase—Cannot be  ejected  except  on  proof  of 
breach  and  demand  of  possession— H.  Mc  I). 
went  on  certain  land  as  far  back  as  IS'J.'i.  In 
1848  he  entered  into  an  agreement  under  seal 
with  A.  IJ.  McU.,  attorney  ofG.  Mcl>.,  who  had 
the  legal  title  to  the  land  in  (piestion,  to  pay  for 
it. 

H.  McI).  made  payments  under  the  agreement, 
cleared  some  of  the  land,  and  built  on  it.  .Sub- 
secpiently,  in  18.').S,  A.  R  McU.  took  out  letters 
of  administration  of  the  estate  of  ({.  McD. ,  ob- 
tained license  to  sell  from  the  Court  of  Probate, 
in  March,  1859,  and  in  May,  1859,  aohl  the  land 
in  question,  under  the  license,  to  plaintitf,  who 
was  aware  of  defendant's  possession  and  of  his 
having  made  payments  under  the  agreement  and 
improved  the  land. 

Held,  that  assuming  thivt  defenihmt  could  be 
treated  otherwise  than  as  a  debtor  to  the  estate 
for  the  purchase  money,  the  plaintiff,  who  had 
brought  ejectment,  nnist  shew  clearly  that  de- 
fendant having  been  lawfully  in  possession  under 
an  agreement  to  purchase,  he  had  become  a  tres- 
passer by  repudiation  of  the  purchase  or  breach 
of  the  agreement  on  his  part  and  demand  of  pos- 
session, and  that  in  the  absence  of  such  evidence 
the  rule  to  set  aside  the  non-suit  must  be  dis- 
charged. 

A.  McDonald  v.  H,  McDonald  et  al., 
2R.  &C.,  135. 


28.  Possession,  adverse— The  adverse  pos* 

session  of  a  widow  centui  que  truat,  as  against 
the  trustees,  will  enure  for  the  benefit  of  her 
children,  being  also  ceatuu  que  trtufent,  and  can- 
not be  set  up  against  their  title. 

Archibald  v.  Bloiji,  Jamef ,  307. 


29.  Possession,  adverse    Inipcrlul  .id,  21 

Jas.  1.,  c.  14,  in  force  in  Nova  Scotia  -The 
("rowii  cannotgrant  lands,  of  which  a. subject  iiiis 
been  in  adverse  po.Hsessicm  for  twenty  yiais, 
without  lirst  re-investing  itself  with  tlie  pci>si's. 
sion  l)y  ortice  fo\ind. 

The  Imperial  Act,  21  James  I.,  c.  14,  is  in 
force  in  Xova  Scoiia. 

Wiierc  a  party  who  iias  been  put  into  pusses- 
."ion  of  frown  lanils,  by  a  Crown  .survtym 
whom  he  imid  for  the  survey,  and  who  ran  \\\v 
base  line  of  the  lot,  sighted  the  side  lines  ;iiiil 
nuirked  two  of  the  coi'neis,  afterwards  sells  with- 
out writing  to  a  third  (larty,  who  goes  into  pus- 
session  claiming  the  whole  lot,  such  possession  is 
«(/iTrs(,  to  the  Crown,  and  is  co-extensive  with 
the  limits  of  the  h)ts,  and  not  conlined  to  tliu 
actual  occupation. 

Where  a  son  of  such  third  party  went  intn 
possession  of  the  lot  two  years  after  his  fatiiei's 
death,  made  improvements,  and  died  on  it,  leav- 
ing a  widow  and  children  ^some  of  whom  were 
the  present  defendants),  who  contitnied  in  jkis- 
session,  and  extended  the  ;niprovements, 

IIilil,  that  the  [lossession  of  such  son,  iunl  dI 
his  widow  and  children,  was  adverse  to  tlie 
Crown,  and  co-extensive  with  the  limits  of  the  Int. 

/\*- Dodd,  J.,  that  such  possession  being  liy 
dixniit,  was  a  ])ossession  under  color  of  title. 

Uiiiackt;  v.  Dick-<oii,  .James,  287  ;  ■>''■""  v. 
Hcnder.'<on,  2  Thorn.,  115;  (li/>hoiii  v.  Kilihuj, 
M.  .S.  M.  T.,  18til,  reviewed. 

Smyth  V.  Mr  Donald  it  al.,  1  Old.,  -74. 

30.  Possession,  adverse -Interruption  of 

—Claim  of  title— W.,  under  whom  defendiiut 
claimed,  entered  into  possession  of  a  lot  of  lanil 
in  1834,  under  a  judgment  recovered  against  T. 
in  an  action  of  ejectment,  and  continued  in  pos- 
session for  a  period  of  thirty  years.  In  18401. 
conveyed  to  the  plaintiff,  who  in  the  followiiij; 
year  went  upon  the  lantl  and  had  it  sin-veyeil. 

Ihld,  per  .Johnstone,  K.  .J.,  Dodd,  J.,  ami 
Ritchie,  J.,  that  the  entry  and  survey  by  tlie 
plaintiff  were  not  a  sufticieut  interruption  of  the 
adverse  possession  of  W.  to  prevent  the  opera- 
tion of  the  Statute  of  Limitations. 

/'erRitchie,  J.,  Sir  W.  Young,  C.  J.,  donbliiuj, 
T.  having  been  out  of  possession  and  W.  in  pos- 
session under  his  judgment  when  the  former 
made  his  deed  to  the  plaintiff,  no  title  pMseil 
under  it.  Sir  \V.  Young,  C.  J. ,  while  concurring 
with  the  majority  of  the  Court  as  to  defemlant's 
possessory  title,  reviewed  the  conflicting  ilocu- 
mentary  titles  of  the  plaintiff  and  defeiulant  at 
length,  and  referred  fully  to  the  tov/nship  grants 
in  which  the  property  in  dispute  was  included, 
He  was  of  opinion,  under  all  the  circumstances, 
that  there  should  be  a  new  trial.     Wilkins,  J., 


485 


EJECTMENT. 


486 


Wiis  also  rif  opinion  tliiit  there  rIkiuM  l>e  iv  new 

ti'iiil. 

I)islmm-<<t  a/,  v.  Sluy,  -2  X.  S.  I).,  .TJT. 

Oh  (iji/iki/  /o  fhi  Prinj  Cuniiri/, 

Till!  pliiintifT  iind  tl.e  ilefemlant  set  up  rival 
i.lniiMs  to  lands  under  two  separate  sticsinis  of 
title,  i'aoh<k'rived  from  a  distinet  grant  fi'oni  the 
Clown.  The  plaintifTs  grant  was  in  1708,  and 
the  title  fiipin  that  jMiint  wan  perfect;  liut  the 
(inly  material  aet  of  ownership  on  whieh  he  relieil 
was  an  entry  upon  j»art  of  the  lands  in  IHS'J  hy 
T.,  against  whom  a  judgment  in  ejectment  was 
iifteiwanls  given,  and  who  thereupon  i'elin(iuish- 
eil  ])iissessioii.  The  defendant's  grant  (which 
tlie  plaintiir  questioned  as  void  for  uncertainty) 
was  in  ITtil.  The  title  was  in  some  respects  de- 
fective, hut  under  it  there  had  lieen  continuous 
p(j.sse.vsion  since  ISO,"),  uninterrujjted  except  I>y 
the  aet  of  T. 

JI'/il,  that  even  supposing  the  grant  of  1701 
hail  for  uncertainty,  the  evidence  of  possession 
under  the  defendant's  title  was  sufhcient  to  raise 
a  presumption  of  a  valid  grant. 

titid,  also,  that  the  ejectment  recovered 
against  T.  and  his  sidjseipient  giving  up  posses- 
sion were  evidence  of  adverse  possession  hy  the 
ilefenilant  sutiicient  to  bar  the  plaintitT  's  title 
under  the  Statute  of  Limitations  (Acts  ISOO, 
cap.  I'i).  Technical  desseisin  of  the  claimant  is 
not  necessary  to  create  adverse  possession  ;  for 
pos.se.ssi(in  is  adverse,  for  the  purpose  of  limita-  ' 
tion,  where  an  actual  possession  is  found  toe.xist 
under  cireuiiistances  which  evince  its  incompati- 
bility with  a  freehold  in  the  claimant. 

DtsJiart-e.'^  <t  a/,  v.  Shet/,  'iS  L.  T.,  o9'2  ; 
'  'i-i  \y.  R.,  273. 

In  a  case  in  which  the  facts  and  law  appear  to 
be  entirely  one  way,  their  Lordships  will  make 
the  presumptions  which  should  properly  be  made 
by  1  jnry,  without  sending  the  case  down  for  a  ' 
new  trial. 

lb. 

31.   Possession,  adverse,  to  defeat  Crown 

grant  must  be  twenty  years— Lien  of  judgment 
on  after  acquired  property— In  1807  the  Crown 
granted  to  one  Scott  a  lot  of  land,  of  which  defen- 
dant had  been  in  adverse  possession  for  ten  years, 
and  in  1870  Scott  conveyed  said  land  to  defen- 
dant hy  deed,  which  was  duly  recorded.  In 
May,  1857,  plaintiflFs  recovered  judgment,  which 
was  duly  recorded,  against  Scott,  under  which 
the  land  in  dispute  was  sold,  and  purchased  by 
plaintiffs  at  the  Sheriff's  sale. 

Held,  that  the  adverse  possession  of  defendant 
did  not  prevent  the  Crown  from  granting  the 
•and  to  Scott,  as  such  possession,  in  order  to 
have  such  effect,  must  be  defined,  actual  and 


'  continuous  for  tirmiij  i/iar",  and  that,  although 

Scott's  deeil   to  defenchmt   was  duly   recoriled, 

the  land,  although  aci|uired  after  the  judgment 

I  recorded  in   lS."i7,  was  hound  by  the  judgment 

the  moment  it  was  granted  to  Scott. 

Loidsliiirii  Land  t'oiii/taiii/  v.  'J'lif/i/, 
4  R.  &(;.,  401. 

32.  Possession,  adverse    Verdict— Piain- 

titl's  sought  to  recover  |M)sses'sion  of  a  lot  of  land, 
])ortion  of  an  island  that  had  been  granted  to 
sev<Mal  ])ersons,  their  grandfather  being  one  of 
the  grantees,  but  there  was  no  evidence  to  con- 
nect him  with  the  particular  lot  in  ((uestion.  He 
held  no  assignment  of  it  and  had  never  claimed 
j  it  in  his  life  time,  though  he  had  lived  forty 
I  years  after  the  i)assing  of  the  grant,  and  many 
years  after  those  under  whom  defemlants  claimed 
had  been  living  ui)ou  it.  T'he  <l-jfendants  had 
been  in  possession  of  the  lot  for  from  sixty  to 
eighty  years  j)revious  to  action  brought. 

JI(/(/,  that  the  verdict  for  plaintiti's  should  be 
set  aside  and  a  new  trial  had. 

Condon  <■(  al.  v.  Daclv.  it  a/.,  ',]  N.  S.  1).,  17'2. 

33.  Possession,  adverse -Wilderness  lands 

— Conflicting  gi-ants-In  an  action  of  ejectment, 
plaintifl's  claimed  under  a  grant  from  the  Crown, 
which  pas.sed  in  177.S.  The  description  in  the 
grant  incluiled  the  land  in  (piestion  in  the  action. 
Defendant  derived  his  title  from  a  grant,  which 
passed  in  1 784,  and  in  which  the  land  to  be  taken 
under  it  was  described  as  lying  to  the  north  of 
the  land  in  the  grant  of  1773.  The  land  taken 
possession  of  under  the  latter  grant  was  within 
the  lines  of  the  former  grant.  One  of  the  original 
grantees  under  the  grant  of  1784  conveyed  by 
metes  and  bounds  the  lot,  which  he  had  drawn 
at  the  division  of  the  grant,  to  a  purchaser  who 
conveyed  by  the  same  metes  and  bounds  to  the 
grandfather  of  the  defendant.  Defendant's  title 
was  by  descent  from  this  grandfather.  Original 
grantee  had,  in  1793,  occupied  and  cultivated  a 
portion  of  land  in  dispute.  All  the  subsequent 
possessors  had  also  occupied  and  cultivated  a 
portion.  Part  within  the  metes  and  bounds  was 
still  in  a  wilderness  state. 

Held,  such  an  adverse  possession,  even  of  the 
part  in  a  wilderness  state,  as  to  bar  claim  under 
grant  of  1773. 

Lemees  of  Lawtion  et  al.  v.  }Vhitman, 
1  Thom.,  (2nd  Ed.),  208. 

34.  Possession,  as  against  wrong-doer,  sur< 

ficient  to  sustain  ejectment — Occupation  by 
son,  permissive — Evidence  of  mere  prior  pos- 
session in  the  plaintiff  affords  a  sufficient  pre- 
sumption of  title  in  him  to  enable  him  to  recover 
in  ejectment  against  a  wrong-doer. 


487 


EJECTMENT. 


4h8 


Possession  ))y  iluleiuliuit  of  a  ))iirt  ol  llie  liiiul  tcil  the  arj,'iiimnit  to  l)o  postpoiiuil  imlil  eviiluiici' 
of  Ills  fiiflior-iii-liiw  will  li('])i-i'Humuil  to  lieiiiMT-  upon  Iho  point  could  !po  tiiken  liefore  a  foninii.s- 
missive  oii'upiuu'v  nnli'ss  tliiMi-  \)v  vi'iy  stionj;    sioni;r. 

cvidiMKc  to  siifw  ;ui  iulvcisf  iiossossion.  Mtiom y  v.  Stnijlk,  I  K.  it  ('.,  .'J71. 

1.1111,  11/  Smith  1 1  III.  V.  MfKiir.ii ,  .laini's,  'J'JS.  I 

38.    Possession,  constructive    Demand  of 

35.  Possession  by  descent  -  Wliat  proof  possession  Occupation  by  son  premim.il  per 
nucessjiry  in  ejectment     Rectification  of  deed    missive— 'I'lic  running  of  one  of  the  side  lines 

-  Where  11  plaintitl  in  ejei'tiueut  claims  the  pos-  of  u  large  tract  of  land  to  which  the  plaintitFhad 
session  of  lands  liy  descent  from  a  deceased  ten-  '  no  title,  hut  of  a  part  of  which  he  was  in  actual 
ant  for  years,  lie  nnist  jiroduce  either  letters  of  occujiation,  hehl  a  sullicient  act  of  possession  to 
proliateor  of  adndnistration.asheisnotentitled  I  enalde  a  jury,  with  other  evidence,  to  infer  a 
to  such  poasession  as  heir.  |  constructive  possession  of  the  wlude  tract. 

'J'he  Court  will  rectify  an  error  in  a  deed  where  ,  Where  the  plaint itF  and  defen<lant  in  eject- 
theie  are  clear  identitication  and  i)roof  of  what  nient  resided  together  upon  the  land,  and  defen- 
land  was  intended  to  he  conveyed,  and  where  the  ,  dant  iiad  no  occupation  separate  and  distinct 
error  has  l)cen  causeil  liy  the  fraud  of  tiie  party  from  tiiat  of  tlie  plaintitl",  proof  of  demand  of 
seeking  to  defeat  the  deed.  I  possession   previous  to  action   ln'ought   held  not 

Piitrl  V.  Piarl,  '2  Old.,  IX    necessaiy. 

I      The  occupation  hy  a  son  of  a  part  of  lus  father's 

36.  Possession  by  purchaser  under  asrce-  !  land  will  he  deemed,  in  tlie  absence  of  evidence 
ment    -  Refusal    to   accept  deed   tendered    -  !  to  the  contrary,  as  a  permissive  occupation. 


Demand — A  i)arty  who  has  entered  into  pos- 
.sessiou  of  land  under  an  agreement  to  jiurchase, 
and  has  refused  to  accept  a  deed  of  the  land 
teiidei'ed  to  him,  on  the  ground  that  he  does  not 
consider  the  deeil  a  proper  one,  has  not  by  sucli 


Plu'hin  <•/  III.   V.  I'hilaii,  .James,  184. 

30.  Possession  -Demand  of  possession- 
Verdict  for  part  of  land  claimed  -I'laintitfs 
bnmght  ejectment  to  recover  possession  of  .'fOd 


a  refusal  so  changed  the  character  of  his  position  ,i^.,,^.j,  „f  j.,,,,,^  claiming  under  two  deeds  made 
as  a  tenant  at  will,  as  to  put  himself  in  the  j  i,y  the  adnduistrator  of  one  (J.  McI).  under  a 
position  of  a  trespasser,  and  cannot  be  ejected    iiei.„se  to  sell,  granted  by  the  Probate  Court  in 


without  demand  of  possession. 

Leirer  et  a/,  v.  MrCiillorh,  1  R.  &  C,  315. 

31.  Possession— Ciaim  of  titie  by— Argu- 
ment postponed  to  obtain  evidence  on  materi- 
al point — One  1).  ,M.  occupieil  certain  lands  from 


October,  18.V).  Defendants  claimed,  as  to  'JK) 
acres,  under  a  deed  made  in  April,  18.m,  hy  tlie 
attorney  of  (!.  McD.,  then  living,  or  supposed  to 
be  living,  in  Australia,  and,  as  to  ]W  acres,  by 
pos.session,  though  they  had  gone  upon  llie  lot 
under  a  lease  from  (!.  Mel). 's  attorney,  wliicii 
18tt;{  to  183.S,  when  he  left  them  by  will  to  his  :  le^se  exi)ired  in  May,  18,-i.->.  'I'he  jury  lindiiig 
son,  A.  M.,  subject  to  certain  life  interests.  The  '  f,„.  i),u  plaiiitills  as  to  the  lot  of  IM)  acres  only, 
son,  A.  M.,  mortgaged  the  property  in  18.S8.  /f,/,/^  Wilkins,  J.,  illsimthin,  that  tiic  vei- 
The  mortgage  was  foreclosed,  and  the  property  j  jjct  could  not  be  disturbed  under  the  evidence, 
bought    by    plaintitl'  under   the   order   of   fore-  \      ff,/,i^  „/,„^  that  no  demand  of  possession  was 


closure  and  sale.  The  plaintitl'  continued,  by 
himself  and  others,  to  e.xercise  acts  of  owner- 
ship over  the  property  untd  action  (ejectment) 
brought.  The  defendant  claimed  under  a  (juit 
claim  deed  made  in  1803  by  one  R.  M.,  who  had 
gone  on  the  property  as  a  trespasser  some 
twenty-four  or  twenty-five  years  before  action 


necessary  as  to  the  1(K)  acres. 

Iltlil,  aim,  that  a  verdict  for  a  part  of  the  land 
claimed  in  the  writ,  specifying  the  part,  was 

good. 

McDonald  el  al.  v.  McDonald  <>  al., 
1  R.  &  C,  420. 


brought,  and  had  built  a  house  on  it  and  lived!      40.     PosSCSSion  —  Evidence  Of  —  VcrdlCt- 

tliere  some  nineteen  years  before  action  brought  .  PlaintiflTs  sister,  C.   J. ,  deceased  hefoie  trial, 


anil  also  under  a  grant  from  the  Crown  made  in 
1870. 

The  Court,  acting  under  a  rule  giving  it  the 
powers  of  a  jury,  gave  judgment  in  favor  of 
plaintiff. 

It  being  discovered,  when  the  rule  first  came 
on  for  argument,  that  no  evidence  had  been 
given  at  the  trial  with  regard  to  a  certain  point 
material  to  the  plaintiff's  case,  the  Court  direc- 


let  certain  premises  to  J.  1).,  one  of  the  defen- 
dants, in  1869.  Her  sister,  Mrs.  G.,  who  was 
present  at  the  agreement  to  let,  testified  that 
C.  J.  let  the  premises  "as  her  brother's  property.' 
J.  1).  testified  that  C.  J.  "did  not  let  the 
premises  as  the  property  of  any  one  but  herself. 
A  letter  was  put  in  evidence  from  plaintiff  to 
his  sister,  C.  J.,  dated  in  September,  1868, 
in  which  he  wrote,  "  I  want  you  to  take  posses- 


489 


EJECTMENT. 


490 


sioii  for  me  "  of  till!  piviiiise^  in  (|Uo.sticm,  tlieii 
ociiipiccl  anil  clainiiMl  l)y  otlicr  i>iirtifH,  and,  "  I 
lu'ii'liy  a|)])oiiit  you  my  agent  for  tlie  jmrpose 
aliiivi'  iiaiiail,"  It  wan  in  cviilcni'e  also  that  from 
l.S.'idto  l.sT- l>laintitr"ssiistt'r,  t'.  .J.,  lia«lcolk'utf(l 
rents  foi'  lliis  projierty,  (iml  acuounted  to  liim  for 
tlieiii.  The  juilge  who  tried  tiie  eause,  in  eharg- 
iiijL,'  thi!  jiny,  told  tlieni  that  "  If  in  tiii.s  ease  the 
jilainlitfliad  in  jHiint  of  fact,  by  agent  or  other- 
wist',  lit  the  |)r(ii>  \v  in  ([iiestion  to  the  defen- 
ilicnt,  Hiid  it'  his  title  to-d  ly  was  the  same  as  at 
tlif  time  of  such  letting,  lie  was  entitleil  to 
recover  in  this  action,"     ejectment. 

//'A/,  that  the  jury,  in  linding  for  the  phiin- 
titr.  liMlst  lie  consideied  to  h.ive  i)assed  u])iin  the 
(juestion  of  letting,  and  that  the  verdict  could 
net  he  disturhed. 

Wilkiiis,  .1.,  i/itii  iiliiii/. 

,/ox/  V.   I)cri.-<il  III.,  1  H.  &C.,  .SI!). 

4t.    Possession,  requisites  of,  to  maiiituin 

ejectment  -Mere  iirior  possession  is  sulHcicnt 
til  iiiiiiiilaiii  ejectment  against  a  wrong  doer'. 
.'<iicli  |iiisse>sinn  however,  must  lie  clear  and 
uiici|iiiviical. 

I'' r  Wilkins  .1.  -Such  iiossession  nnisl  he 
(i]Hii,  nutoridtis,  exclusive  and  well  delined,  and 
interfered  with  liy  defendant  hy  force  or  fraud. 

There  nut  lieiiig  evidence  of  such  possession 
(111  tlie  part  of  the  plaintill's  or  liiiii  under  whom 
they  claimed  (the  mere  running  of  two  side  lines, 
the  removal  of  a  fence  around  the  land  which 
was  wild  and  uncultivated,  the  use  of  a  way  over 
it  for  a  cow  ])ath  liy  a  third  party  with  the  per- 
iiiissjoii  of  the  plaintilfs'  devi.ser,  and  a  eontin- 
inms  claim  of  title  lieing  held  not  to  lie  sulticient) 
ainl  they  having  failed  to  prove  a  documentary 
title,  the  Court,  the  case  having  been  twice 
tried  with  the  same  result,  refused  to  set  aside 
a  seciiiid  verdict  for  the  defendant,  thodgh  he 
siiov.eil  no  title  whatever. 

Diidd  .J.,  ilis.si  iifiiii/. 

SiiiiHi  V.  MiK(  irJi ,  .Fames,  '2'2.S  atlirmed. 
Fmmriii  ,1a!.  v.  Mini,  '2  Old.,  I'O.S. 

42.  Possession  under  agreement  to  pur- 
chase -Adverse  giant  from  Crown  —  Attorn- 
ment —  Consideration  for  promise  to  give  up 
possession -Where  a  party  entered  into  posses- 
si'm  (if  land  under  agreement  to  purchase  from 
(iii'j  rc'iiresenting  himself  as  owner  under  an  allot-  j 
nieiit  (if  ancient  date,  I 

AV/i/,  that  ills  title  was  good  as  against  a  gran-  | 
t€e  liiilding  under  grant  from  the  Crown,  dated 
f'liir  years  after  his  entry,  and  setting  out  fact  of  I 
allotment  having  been  made  to  individual  of  same  \ 
name  as  tiie  person  from  whom  defendant  pur- 
chased. 


Ill  Id  y  iilin,  that  defendant's  attornment  to  the 
les.sor  of  plaint  ill'  was,  under  the  circumstances, 
inoperative,  defendant  being  under  the  iinpres- 
sion  tliat  Miller  had  a  title  which,  from  facts 
ilihors  the  grant,  and  iiiiknow  n  to  the  defendant 
at  the  time,  it  appeared  he  had  not. 

Hilil,  al<o,  that  the  returning  to  d«.'fendant  il 
promissory  note,  given  by  him  to  lessor  of  plain- 
titl',  payable  njioii  getting  a  good  title  to  the  land, 
was  not  a  suflicient  consideration  on  which  to 
found  a  promise  to  relin(|iiisli  the  possession. 

Mllld-w  Liintij,  I  Thoni.,  (1st  Kd.),  I.S'J; 
C-'nd  Kd.),  Kil. 
I 

43.  Possession    Verdict  sustained  -I'lain- 

tiir  proved  title  to  land  inider  two  grants  from 
the  Crown  but  never  resided  on  or  had  actual 
possession  of  it,  the  land  having  been  occu])ied 
and  wdikcd  for  upwards  of  tw.enty  years  liy  his 
father  who  was  ))ut  on  the  place  by  plaintiH'and 
partly  supported  by  him.  .\fter  the  death  of 
the  father  the  land  was  occupied  for  two  years 
longer  by  a  son  who  had  lived  with  the  father, 
but  was  not  (iroved  to  have  had  any  jxissessioii 
distinct  Irom  him.  The  son  having  died,  plain- 
tiff biduglit  ejectment  against  his  widow.  A 
verdict  having  been  entered  for  plaintiff  by  con- 
sent subject  to  the  opinion  of  the  Court, 

//(/(/,  that  the  verdict  could  not  be  disturbed. 
If  the  possession  of  the  father  was  not  the  ]ios- 
session  of  the  ]ilaintill'  and  the  latter  was  not 
entitled  to  succeed  on  that  grouiid,  he  was  en- 
titled to  recover  as  heir  to  his  father,  the  only 
I'iglit  of  the  defendant  being  to  dower  in  her 
husbaiurs  share  of  the  land. 

MrDomilil  v.  .1/c />«/«(/</,  .">  R.  &  (i.,  •-'ItS. 

44.  Possession  -  Verdict  wliere  conflict- 
ing evidence  — In  an  action  of  ejectment  defend- 
ants relied  for  their  title  upon  an  alleged  parol 
transfer  of  the  property  to  the  husband  of  K.  IX, 
one  of  the  defendants,  and  a  continuation  of  that 
transfer,  also  by  jiarol,  to  the  said  E.  1).,  at  the 
death  of  licr  husband,  about  thirty-tive  years 
before  action  brought.  Hut  the  evidence  on  the 
part  of  the  plaintiff  went  to  show  tliat  the  luis- 
band  of  E.  1).  entered  into  pos.session  of  the 
property  as  servant  to  ])laintiff,  that  it  was  the 
custom  of  ])laintiff  to  provide  houses  for  some 
of  his  servants,  ai.d  tliat  at  various  times  sub- 
sequently plaintiff  had  exercised  acts  of  owner- 
ship thereon. 

/Ii.ld,  that  the  jury  having  found  for  the  plain- 
tiff, their  verdict  could  not  be  disturbed. 

The  Judge,  in  his  charge,  directed  the  jury  to 
find  for  plaintiff,  and  also  re(iuested  them  to  find 
whether  plaintiff  had  verlwiUy  transferred  the 
property,  as  stated  by  defendants. 


491 


EJECTMENT. 


492 


//('/'/,  that  iif>  olijeution  could  be  taken  to  tliis 
charge. 

Collm.'i  V.  Dohirtyi't  a/.,  1  N.  S.  1).,  164. 

45.    Presumption  or  acceptance  of  trust 

— Evidence  — Tiie  (\)urt  will  not  direct  iv  jury 
to  presume  tiie  acceptance  of  a  trust  created  l»y 
devise  when  there  has  been  fifty  years  adverse 
possession  as  aj;ainst  the  trustees,  tliere  being  no 
evidence  of  such  acceptance,  an<l  all  the  facts 
being  opposed  to  such  jiresuniption. 

The  Court  will  not  send  a  special  verdict  back  [ 
to  a  jury  to  decide  ui)on  a  presumption  which 
they  would  not  be  justified  in  finding. 

The  advci'se  possession  of  a  widow  ccxliiin  que. 

frn-^f,  as  against  the  trustees,  will  enure  for  the 

benefit  of  her  children,  beinj?  also  (•p><qiii'<  que 

trwiffiit,  and  cannot  be  set  up  against  their  title. 

Arfhihald  v.  lilolt,  James,  307. 

40.    rrcHumption  of  grant  — Amendment 

of  writ  after  trial  and  argument  —  Costs  —  A 
lot  of  land    was    allotted    in    1767    to   J.    B.,' 
as  ajipeared  by  the  drawing  or  allotment  book 
filed  in   the  Registry  of  Deeds  for  the  County 
wherein  the  lot  was  situate,  and  the  accompany- ! 
ing  plan,  by  a  card  alleged  to  have  been  drawn 
l)y  the  said  J.  W.  in  1 767  (the  date  of  the  allotment 
book),  the  canl  containing  a  description  of  the 
lot  corresponding  with   that    in  the  allotment 
book  ;  and  by  the  certificate  of  the  Registrar  of 
Deeds   given   by   the   Registrar  to  J.   ]}.,  and 
proved    to    i)e    marked    with    the    Registrar's  [ 
initials.       This  card   and   the  certificate  were  j 
proved  to  have  been  continuously  and  consecu- 
tively  in   the   possession   of  J.   B.,   and   those 
claiming  under  him,  and  were  produced  by  the 
plaintifTs  at  the  trial.     The  block  of  land  allotted 
by  the  allotment  book  contained  in  the  whole 
180,000  acres,  being  the  whole  township. 

Nothing  was   known   of    this   book    but   its 
antiipiity,  and  the  fact  of  its  general  acceptance. 
A  grant,  which  appeared  to  be  a  grant  of  confir-  \ 
mation  passed  in  17S4,  conveying  71,406  acres  of 
the  alwve  1 80,0(X).     This  grant  recited  a  previous 
grant  in  176o  of  the  whole   180,000  acres,  and 
the  grantees  under  this  latter  grant  (of  whom  J. 
B.  was  not  one)  were  all  also  grantees  under  the 
previous  grant,  and  their  title  and  possession 
were  confirmed  by  this  latter  grant.     This  latter 
grant,  however,  stated  that  the  graiit  of  1765  had 
not  been  accepted,  nor  taken  out  of  the  secre- 
tary's otfice.     The  plaintiffs  were  H.  J.  B.  and 
S.  B.,  and  they  traced  their  title  from  J.  B.  as  , 
follow! :     Deed,  J.  B.  to  J.  G.  B. ;  Deed,  J.  G.  B.  ; 
to  H.  J.  B.   (one  of  the  plaintiffs) ;   Deed,  from 
H.  J.  B.  (the  last-named  plaintiff)  to  S.  B.  (the  ' 
other  plaintiff).     S.  B.,   it  appeared,  had  con-; 
veyed  the  locus  to  one  D.  R. ,  and  the  deed  to  ; 


1).  R.  had  been  executed  and  recorded  before 
action  brought.  The  ]>laintiffs'  counsel  at  tlie 
trial  alleged  in  opening  that  the  action  was 
brought  for  the  benefit  of  D.R.  M.,  a  surveyor, 
had  acted  as  agent  for  the  plaintiffs,  or  one  of 
them,  or  those  under  whom  they  claimed,  ami 
the  defendants  iiad  been  put  in  pos.ses.si()ii  )iy 
him  fifteen  years  l)cfore  action  brought.  'I'lie 
defendants  diil  not  attempt  at  tiie  trial  to  prove 
title  in  themselves,  but  relied  wholly  on  the 
alleged  weakness  of  the  j)laintitfs'  title. 

Hild,  the  Court  being  at  liberty  to  draw  the 
same  inferences  as  a  jury  might — First  thiu 
under  all  the  circumstances  a  grant  of  tlie  lot 
to  J.  B.  in  or  before  1765  might  be  presumed. 

Secondly  tliat  as  the  possession  of  the  defen- 
dants was  not  a<lverso  to  tlie  plaintiffs  it  diil  not 
prevent  the  operation  of  the  deed  from  S.  1}.  to 
D.  R. 

Tliir<lly  that  as  there  was  no  pretence  of  title 
in  the  defendants,  and  the  plaintifl's  would  have 
been  entitled  to  judgment  if  D.  R.'s,  name  Imd 
been  on  the  record,  the  record  might  now  be 
amended  by  adding  1).  R.  as  plaintiff. 

Fourthly,  that  the  plaintifl's  under  all  the 
circumstances  were  entitled  to  the  general  costs 
of  the  cause,  neither  party  to  the  costs  of  the 
trial,  and  that  the  plaintiffs  should  pay  tlie  costs 
of  argument. 

lioulilkr  ei  al.  v.  Knock  ct  at.,  '2  Old.,  "". 

47.    Regularity  of  proceedings  prior  to 

order  to  sell  real  estate  under  license  cannot 
be  attacked  in  action  of  ejectment  —  M.  D. 
died  insolvent,  having  by  will  appointed  four 
executors.  He  left  a  widow,  who  was  iioii  com- 
pos, and  five  children,  the  eldest  of  whom  was 
of  age.  In  1819  prol)ate  of  the  will  was  graiitcil 
to  two  of  the  executors.  There  <lid  not  appear 
to  have  been  any  citation  to  the  executors  or 
renunciation  by  the  two  who  were  not  named  in 
the  letters  of  probate.  The  two  executors,  to 
whom  probate  had  been  granted,  obtained  an 
order  from  the  Governor-in-Council  to  sell  the 
real  estate  for  the  payment  of  the  testator's 
debts.  The  order  was  granted  at  Halifax,  April 
28,  and  signed  May  2,  1822,  and  recjuired  thirty 
days'  notice  of  the  sale  to  be  given  in  I'ictou. 
A  bond  was  given  by  the  two  executors,  but  no 
sureties  signed  it,  although  the  law  required  two 
sureties.  At  the  sale  which  took  place  on  June 
2nd,  1822,  the  plaintiff  purchased  the  real  estate. 
He  immediately  went  into  possession,  and  laU 
off  a  portion  of  the  land  to  the  widow  for  her 
dower.  The  eldest  son  took  charge  of  tlie  widovr 
and  the  rest  of  the  family,  and  they  occupied  tiie 
portion  so  laid  off.  After  the  death  of  the 
widow,  the  plaintiff,  in  1856,  brought  this  action 
of  ejectment  against  the  children.     The  defend- 


403 


EJECTMENT. 


494 


mils  relieil  on  the  following  objections  to  pliiin- 
tid's  title  :  — 1st,  Order  niaile  to  only  two  of  the 
cM'outdrN  !\))ii(iinte(l  by  the  will.  'Jnil,  InHiitii- 
cifiit  security  given  l>y  the  exeeutorH.  .'h'tl,  No 
sutliciiiit  evidence  of  notice  by  publication  in 
Ua'.i  Hi  or  by  handbills,  since  it  was  impracticable 
t"  j;iv('  the  iei|uired  thirty  days'  notice,  when 
till'  (irder  was  signed  in  Halifax,  May  '2nd,  an<l 
sale  toiik  ])lace  in  I'ictou,  .Tune  2nd.  Tiiere  was 
a  vtrdiut  for  defendants. 

//«/(/,  that  it  ought  to  be  set  aside,  HuUibur- 
tDii,  ('.  d.,  ilifsmtlini, 

/'ir  Bliss,  d.  The  regularity  of  the  proceed- 
iiif.'s  |)ri<>r  to  the  order,  it  appears  to  nie,  we 
laiiiiiit  here  imiuire  into.  The  (iovernor-and- 
Cmiiicil  iiail  peculiar  and  exclusive  jurisdiction 
over  the  matter,  and  their  order  cannot  be  ini- 
peuiiicd  thus  incidentally  as  long  as  it  stands 
uiiivvol<i'<l  and  not  set  aside. 

Vhiskolm  v.  McDonald  it  al.,  '2  Thoni.,  307. 

48.  Right  to  soil  ad  inedliim  flliini  vie 

excluded  by  description  in  deed. — Verdict 
cannot  be  supported  on  ground  not  left 
to  the  jury — In  an  action  of  ejectment,  the 
jury,  in  answer  to  a  question  put  to  them  by  the 
.ludgc,  found  that  plaintitT,  in  selling  the  lots, 
nw  of  which  defendant  j)urchased,  announced 
tliiit  tiie  colored  places  on  the  plan,  one  of  wliich 
wii.s  the  locus,  were  streets. 

//'/'/,  that  the  presumjjtion  that  defendant 
held  ad  midiitm  Jilum  viif  was  rebuttable  by 
proof  of  the  title  being  in  plaintiff,  and  that  under 
llic  description  in  defendant's  deed  designating 
tiic  land,  as  indicated  on  the  plan,  and  specifying 
the  iliniensions,  which  were  such  as  not  to  in- 
duile  tiie  street,  the  title  to  the  street  or  any  part 
of  it,  did  not  pass  to  defendant. 

lli'fciidunt,  at  the  argument,  relied  im  a  title 
liy  possession,  but  his  pleadings  set  up  only  a 
ilDcuinentary  title,  and  the  evidence  of  title  by 
possession  was  not  submitted  to  the  jury. 

Ihid,  that  the  verdict  for  defendant  could  not 
Ijc  sustained  by  showing  that,  iinder  the  evidence 
dufcmtiuit  had  ac<piired  title  by  possession. 

Ermt  V.  Wata-matt,  4  R.  &  G.,  272. 

49.  Settlement,  acquiescence  In -Laches 

—  I'liuntiffs,  as  trustees  of  public  property  for 
Argyle,  claimed  to  be  entitled  to  land  alleged  to 
have  been  granted  for  a  Court  House  in  Tusket 
Village.  The  grant  of  the  Village  made  in  1809 
did  not  mention  the  Court  House,  but  the  lot  in 
dispute  was  set  off  for  a  Court.  House  on  the  ac- 
companying plan.  In  1858  the  same  lot  was 
granted  to  trustees  of  public  property  for  Tus- 
ket for  public  uses;  and  it  was  under  these 
grants  and  the  statute,  R.  S.  (4th  Series)  c.  .'iS, 
that  plaintiffs  claimed.     In   1822  the  adjoining 


lot  passed  to  one  Crowell,  who  conveyed  it  in 
1H.'{2  to  .TanicH  Hingay,  who  took  possession 
more  or  less  of  all  the  Court  House  lot  not  actually 
used  for  Court  House  purposes.  In  1  M.VJ  ejcct- 
'  nient  was  brought  against  him  by  trustees  of 
public  property,  Yarmouth,  which  was  uom- 
piomised,  IJingay  conveying  to  the  trustees  a 
part  of  the  land  then  in  dispute  and  plaintiffs 
paying  his  costs.  This  conveyance  was  recog- 
nized by  the  Sessions  in  18,")!) ;  and  in  18()4  after 
the  trustees  had  again  agitated  the  (piestion  the 
Sessions  resolved  to  reliniiuish  all  claims  to  the 
so-called  Court  House  lot.  Defendants  bought 
the  lands  without  knowledge  of  jdaintiffs'  claim 
at  a  public  sale  which  was  not  forbidden  by  the 
trustees,  one  of  whom  was  a  purchaser,  and  tive 
buildings  were  erected  on  it  before  the  plaintill's 
brought  their  action. 

Ill-Id,  that  the  e(iuitable  principles  pndiibiting 
the  disturbance  of  settlements  long  ac([uic.sced 
in  and  prohibiting  a  party  from  lying  by  and 
rea])ing  the  benetit  of  the  expenditure  of 
another's  money  on  his  property,  applied  to 
the  plaintitl's,  anil  that  on  these  grounds  as  well 
as  upon  others  appearing  in  the  evidence  the 
judgment  of  the  Court  must  be  for  defendants. 
Trunte.Hif  of  I'uli/ic  Pro/tertj/  v.  Gill  Is  c/  a/., 

2R.  &().,262. 

50.    Tenant  In  common  ousting  his  co- 

tenant. — Action  of  ejectment  for  an  unilivided 
moiety  of  certain  lands,  defenilant  being  legally 

I  entitled  to  the  other  half,  but  claiming  the  whole 

and  having  actually  ousted  plaintiff  therefrom. 

The  jury  found  for  the  plaintiff,  on   certain 

I  (|ueslion3  of  fact  submitted  to  them,  their  an- 
swers constituiing  a  comjdctc  ca.se  for  him,  and 

i  entitling  him  to  a  verdict;  but  seven  of  them  not 
being  able  to  concur  in  a  general  verdict  after 
four  hours' deliberation,  the  Court  f)rdered  that 

,  a  verdict  be  entered  that  the  plaintiff  was  en- 

I  titled  to  the  possession  of  one-half  of  the  said 

,  lands. 

Jle/d,  duhifavfe,  that  the  verdict  for  plaintiff 
should  be  upheld. 

I  /'osY.  »•  V.  Fosti-r,  3  N.  S.  1).,  310. 

I    51.    Tenant  in  common -Right  to  recover 

in  ejectment — A  plaintiff"  in  ejectment  proved 
to  be  entitled  as  a  tenant  in  common,  and  with 
a  defined  interest  as  such,  has  a  right  to  recov- 
er, subject  to  the  rights  of  the  other  tenants  or 
their  legal  representatives,  against  a  stranger, 
although  such  plaintiff  claims  a  right  of  jjosses- 
sion  to  an  entirety. 

Scott  V.  McXuft  e/  a/.,  2  N.  S.  I).,  118. 

52.    Title  not  derived  ft'om  Crown,  plain* 

tiff  must  trace  to  some  one  who  has  been  in 


4Do 


EJECTMENT. 


496 


poaHenaion — Where  a  party   claiming'  laml  in  ! 
I'ji'i'tnit'iit   iliK's   iKit    (It'rive   liix  titli'   from  tlic 
Crown,  liL'  is  li(»iiiitl  to  trace  it  to  sonic  one  wlio 
liiiH  liuen  in  poMsuMHion  of  tlic  land.  , 

Ciiiiartl  V.  lrn'ii( ,  .lames,  .'{|. 

.W.      TlllC   -  KfrOgnitiUII    of—  Where    the 

(li'femlant,  lu'lnj;  in  poMscsHion  of  land,  agrees, 
for  the  sake  of  peace,   to  ])urehase  any  rij,'iit  the  | 
plaintitr  may   have   therein,   and   snlixeiiuently  j 
tinds  tliat  tlie  phiintitt'  lias  no  ehiini, 

//(/(/,  not  a  sutfieient  recognition  of  jihiintiff's 
title  to  enalile  him  to  maintain  ejeetmeiit. 

MiLioil  V.   Il'-/.v/i,  I'oeliran,  S.'i. 

54.  Yerdlf  t  Tor  Iniid  not  clearly  described 

will  not  be  set  aside — Plaintifl'  left  to  enforce 
at  his  peril  —Wheie  a  plaintiff  has  recovered  in  i 
ejectment  some  poition  of  the  hinds  described  in 
liis  writ,  but  it  cloes  nut  clearly  iijipcar  by  the 
verilict  to  what  portion  of  the  ])rcmises  claimed 
he  is  entitled,  the  verdict  will  not  be  set  aside 
for  uiicertahity,  as  the  Court  will  not  assume 
that  lie  will  attcni)it  tr)  recover  jtossession  beyond 
what  he  is  entitled  to.  The  verdict  is  ample 
authority  for  tills,  and  tlie  plaintiff  must  ascer- 
tain the  line  at  his  jieril. 

H(tiiii/fn,i  V.  /'/'•/./.>■,  -A  X.  S.  I).,  ST. 

55.  Weight  of  Evidence    In  an  action  of 

ejectment  the  jury  found  for  the  dcfcnilaut,  and 
the  .Judge  refusing  a  new  trial,  a  rule  Wius  taken 
out  uni'er  the  statute.  On  argument,  the 
weight  of  evidence  being  clearly  with  the 
defendant, 

III  III,  that  the  verdict  could  not  be  disturbed. 
McPhec  V.  ('ami  roil,  3  X.  .*<.  !>. ,  4t)7. 

56.  wni-Clalm  under- Plaintiff  In  eject- 
ment claimed  under  an  alleged  last  will,  a  draft 
of  wliich  was  put  in  evidence.  Assuming  the 
will  to  have  been  properly  executed,  which  did 
not  clearly  appear,  there  was  no  evidence  that 
it  was  ever  seen  or  certainly  known  to  be  in 
existence  from  the  time  at  which  it  was  made 
down  to  the  trial.  A  verdict  having  been  found 
for  defendiint.  a  '".'.Ic  ♦.tiken  to  set  it  asitle  was 
discliarged  with  costs. 

Hunter  v.  McDonald,  3  X.  S.  D.,  527. 

57.  Will  — Mortgage  by  testator  —  Fore- 
closure of — Suit  to  sell  real  estate  for  payment 
of  debts  —Decree  under— Conveyance  by  pur- 
chaser at  sale  under  decree — Assignment  of 
mortgage  —  Statute  confirming  title  —  A.  M. 
died  in  183",  and  by  his  will  left  certain  real 
estate  to  his  wife,  M.  M.,  for  her  life,  and  after 
her  death  to  their  children.     At  the  time  of  his 


death  there  were  two  small  mortgages  on  tlu^  »ai(l 
real  estiite,  which  were  subse(|iu'nlly  forednscil, 
but  no  .sale  was  made  under  the  decree  in  such 
suit.  In  IH4I,  the  mortgages  anil  the  interext 
of  the  mortgagee  in  the  foreclosiu'e  suit  wcii; 
assigned  to  one  .1.  15.  I'.,  who,  in  IStit,  assigui'il 
and  released  the  same  to  M.  M.  In  lM4l, 
M.  M.,  the  administrator  with  the  will  of  A.  .M. 
annexed,  filed  a  bill  in  Chancery  for  the  jiiirii'ise 
of  having  this  real  estate  sold  to  piiy  tiic  dclits 
of  tlit^  estate,  she  liaving  previously  appliid  in 
the  (iovciiior-in-Comicil,  under  a  statute  of  tlu' 
I'rovince,  for  leave  to  sell  tiie  same,  wliicii  Wiis 
refused  on  the  ground  that  siicii  leave  could  iint 
be  granted  for  the  sale  of  a  jiarticidar  part  of  llii' 
estate,  and  if  the  whole  estate  was  sold  and  tlicii' 
should  be  11  surplus,  there  woidd  be  no  iiioilc  i>t 
apportioning  such  surplus  among  the  devisirs, 
A  decree  was  made  in  this  suit,  and  the  laiiil> 
sold  to  M.  M.  She  afterwards  couveyiil 
said  lands  to  the  Commi.-sioners  of  the  Luimlio 
Asylum,  aiul  the  title  tiierein  i)asseil,  by  viiriinis 
Acts  of  the  Legislature  of  Xova  Scotia,  to  tlie 
present  defendants,  a  statute  having  been  piisse.l 
in  1.S74,  lontirming  the  title  to  the  said  laiiil.i 
in  the  Commissioner  of  Public  Works  lui.l 
Mines,  M.  K.,  devisee  under  tiie  will  of 
.v.  M.,  brought  an  lution  of  ejectment  agiiiii^t 
the  Commissioner  of  I'ublic  Works  and  Mines 
and  the  resident  physician  of  the  Liiniitic  Asy- 
lum, which  was  built  on  the  lands,  and  in  the 
eoui'se  of  the  trial  contended  that  the  sale  uinler 
the  decree  in  the  Chancery  suit  was  void,  inas- 
much as  the  oidy  way  in  which  land  of  ii 
deceased  person  can  be  sold  in  Xova  Scotia  i.-s 
by  petition  to  the  (iovernor-in-Cwnicil.  Tlie 
validity  of  the  mortgages  and  of  the  proceedings 
in  the  foreclosure  suit  were  also  attackeil.  The 
action  was  tried  before  a  .hidge  without  a  jiiiy, 
and  a  verdict  found  for  the  defendants. 

JIi/il,  that  the  plaintiffs  coidd  only  recover  mi 
the  strength  of  theii  own  title,  and  were  bouiul 
to  show  a  title  suju'rior  to  that  under  wliieh 
defendants  had  ])ossession.  As  they  hail  not 
shown  such  title  the  motion  to  set  aside  the 
verdict  must  be  discharged  with  costs. 

Kearnty  tt  at.  v.  Cnilman  ('  n/., 

«R.  &(!.,  {>•-'; 
6  c.  L.  T.,  u;). 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  of  the  Court 
below,  that  even  if  the  sale  under  the  decree  in 
the  Chancery  suit  was  invalid,  the  title  to  the  law! 
would  be  outstanding  in  the  mortgagee  or  those 
claiming  under  her,  and  the  plaintiff,  therefore 
could  not  recover  in  an  action  of  ejectment. 

Semhle,  that  such  sale  was  not  invalid,  hut 
passed  a  good  title,  Henry,  J. ,  doubting. 


4!t7 


ELECTION  LAW. 


49S 


Hthh  aUo,  tlmt  the  Stattitc,  4th  R.  S.,  o.  3H, 
».  47,  vistc'l  tlie  siiiil  IiukIh  ill  tho  ik'ft'iiihtiitH  if 
tliry  iiiul  licit  11  tith^  t(i  till'  Hiiino  lu'fino,  Ht'iiry,  .1,, 

ihlllhtilltl. 

h'irtnii  1/  V.  Crn/muii,  14  S.  ('.  H.,  'A'A  ; 
(I  C.  F..  T.,  :«!•. 
i.iini'  til  iipiifiil   to   till'  Privy  ('miiii'il  was 
rc'fiifieii. 


ELECTION  LAW. 

1.  l)rlbrr},<i-r.,coniiiiittC(]  without  know- 
ledge of  candidate  or  agents  -I'lriln'iy,  wiii'iv 
I'liiniiiitti'd  witlidiit  tile  l^iiowledge  of  the  ciiiidi- 
ilatc  or  Ills  iigfiits,  alleuts  tlie  iiiiin  lirilied  alone  ; 
it  iloi'.'  not  iiH'i'ct  till'  eundiiliite  ;  it  Ims*  merely 
the  elleet  of  extingiiisliing  tlie  vote;  mid  if  there 
was  a  scrutiny  for  the  purpose  of  aneertaining 
will)  had  the  majority  of  votes,  that  man's  vote 
ou^'lit  to  lie  striielv  oil". 

Ihiil/  V.  Cafuui'hail,  it  uL,  Hns,  Elee.  Kep.,  14. 

2.  Bribery  and  other  rornipt  nets -Not 

necessary  to  allege  that  they  were  done  to  pro- 
cure respondent's  election— Acts,  1873,  c.  27  8. 
18,  Dora.  -Hrihery,  intimidation,  treating,  per- 
siiiiation,  &e.,  arc  terms  well  known  to  the  law, 
anil  carry  w  ith  them,  wliiui  used,  ii  clear  iiitima- 
tiini  iif  the  several  otVences  at  elections  intended 
1(1  lie  charged;  and  the  word  "hrihery/'used  in  an 
iloctiini  petition,  is  construed  indepeiideiitly  of 
any  statute,  to  he  the  giving  of  money,  or  some- 
tiling  else  "•///(  iiili  lit  to  comijit  or  hvilio  an  elec- 

tOI'. 

The  Statute,  LST.'i,  c.  ■_':  s.  18,  Doni.,  does  not 
materially  affect  what  is  the  law  without  it. 
That  the  acts  were  done  "to  procure  resjxin- 
ilent's  election  "  is  implied  in  the  charge  that 
such  acts  were  done. 
Ihult  V.  Cariiiirlid,/  ft  a/.,  Hns.    Elec.  Rep,,  14. 

3.  Constitution    of    Court  —  Contested 

Municipal  elections— County  Court  Judge 
authorized  to  hear  petition— One  Judge,  if  dis- 
qualified, may  call  in  another— Power  of  Local 
Legislature  to  define  jurisdiction  of  County 
Court  Judges  —Under  the  County  Incoriwration 
-■Vet  of  IH81,  c.  1  sec.  18,  a  County  Court  Judge 
who  is  ilisqualitied  from  trying  a  petition  in  a 
contested  municipal  election,  may  call  in  another 
County  Court  Judge  to  do  so. 

The  jurisdiction  of  County  Court  Judges  does 
not  depend  upon  their  commissions,  which  are 
only  descriptive  of  the  tribunal  over  which  such 
Judges  are  appointed  to  preside,  but  upon  enact- 
ments of  the  Provincial  Legislature,  which  may 


deline,  enlarge  and  extend  the  districts  within 
which  the  .ludgcM  sit,  as  it  sees  tit. 

Ci-oin  V,  MrCnnhj,  (t  H.  &  (!.,  301  j 
»iC.  L.  T.,4,-..S. 

4.   Constitution  ofEIection  Court    Right  of 

Dominion  to  constitute-  Powers  of  the  Court 
— Preliminary  objections  /A  A/,  /«»•  .lames, 
Q.  ('.,  Henry,  ().  C.,  and  .lohnston,  Q.  ('., 
.Tuilges  ad  lior,  that  the  Dominion  Parliament 
has  )iower  under  thel5ritish  North  America  Act, 
'  sec,  (12,  sub-sec.  14,  to  constitute  a  Court  for  the 
•trial  of  election  petitions  within  the  Province  of 
Xova  Scotia. 

A/so,  /«•»•. Tohnstoii,  ().  (.'.,  that  the  jurisdiction 
of  the  Court  is  not  the  siibject  of  preliminary 
olijectioii  ;  preliminary  objections  are  contined 
to  legal  i|Ucstions  to  be  urged  against  the  petition 
or  against  any  further  proceedings  thereon. 

A/so,  that  the  Common  Law  is  in  full  force  in 
Canada,  and  that  an  elcctiim  may  be  voided  at 
Common  F^aw,  although  not  voidable  under  the 
Statute,  Doni.  Acts,  \H~:i,  c.  27. 

A//isoii  V.  (loiii/tji',  Rus.  Klec.  Rep.,  8.S  ; 
Cunnron  v.  McDonm//,  Id.,  42. 


3.    Costs -Election  petition  set  aside  with- 

out  costs,  as  petitioner  had  succeeded  on  nearly 
all  of  the  eighteen  grounds  taken  against  him  in 
the  rule  nisi,  and  the  two  grounds  on  which  he 
had  failed  came  fairly  under  the  head  of  new 
points  of  practice. 

Wooilirortli  V.  Hon/ni,  .S  R.  Sc  C,  .")71. 

6.  lists— Conclusive  except  Tor  causes 

arising  after  lists  made  up— Scrutiny  confined 
to  such  causes— The  lists  Hnally  made  up  by  the 
Revisers  in  Nova  Scotia  appear  to  be  conclusive 
as  to  the  ((ualificatiiui  of  the  electors,  there  being 
no  review  of  their  decision,  ivs  there  is  in  England 
of  that  of  the  Revising  Barrister,  and  therefore 
it  would  be  only  for  cause  of  disijnalilication 
arising  after  the  lists  were  made  up,  that  a  judge 
here  could  scrutinize. 
Dotill  v.  Carmichael  et  a/.,  Hus.  E/ee,  Rep.,  14. 

7.  Municipal  elections— Corrupt  practices 

at — During  a  municipal  election  meals  and  liq- 
uors were  supplied  to  voters  at  a  private  house 
in  the  interest  of  one  of  the  parties.  An  appeal 
from  a  judgment  of  a  Judge  of  the  County 
Court  refusing  to  set  aside  the  election  was 
allowed  with  costs. 

McMi//aii  V.  McLeod,  7  R.  &  G.,  Go. 

8.  Municipal  elections  —  Candidate  not 

disqualified    by  being   Secretary   of  School 


499 


ELECTION  LAW. 


m 


Trustees,  tinder  section  7,  cap.  1,  Acts  of 
1881— ,\  jiotitinii  was  |»ii'sfiiti'il  to  tlio  County 
Court  .)  ailgc  iigiiiiiMt  ttio  I'li'i'tion  of  rexpoiuU'iit 
as  County  CouiuMllor,  on  tlic  ftronml  that  lie  was  j 
dis(|ualitit'(I  fi'imi  lii-in^  ii'faniliiliitc  liy  virtut:  of 
hist  otlii'f  iiH  .Socri'tury  to  .School  'rruMti'f.t,  and  at* 
such,  a  I'olUiotor  of  ho1h)o1  rates  in  iii.s  section. 

Hi  Id,  rcvurHinj,'  the  decJMion  of  the  I'ounty 
Court  .Tudj;e,  tliat  such  an  othce  was  not  witliin 
the  diM((ualiticationM  in  .sec.  7,  eap.  I,  Acts  of 
KSHl. 

JMliiror/h  V.  Ilii-^ir/l,  4  R.  iV:<i.,  184. 

0.    Municipal  election    Improper  conduct 

of  presiding  otficer  —  Inconsistent  clauses  of 
Municipal  Incorporation  Act~-.\t  a  municipal 
election,  at  which  the  defendant  was  caiulitlate, 
the  election  was  held  at  tlefendant's  house  ;  the 
authorized  repieaentative  of  the  other  party  was 
excluded.  'I'lie  election  was  conducted  hy  de- 
fendant's hcother  as  jn'esidiny  odicer,  and  his 
son  as  clerk  ;  and  i)arties  claiming  to  he  voters 
were  excluded  from  the  polling  l)ooth.  The 
election  was  set  aside. 

Section  18  of  chapter  1  of  the  Acts  of  IS.Sl, 
makes  the  decisions  of  the  iJudge  hulow  on  (pies- 
tions  of  fact  linal.  Section  (i'.t  gives  ap]ieals  from 
every  order  and  decision  of  the  .Judge. 

Hddy  that  the  latter  section  nrist  prevail. 
McKllchit  V.  Morri-iou  el  nl.,'  R.  &  (i.,  On. 

10.  Municipal  election  mi  aside  for  Im- 
proper conduct  presiding  officer— At  a  muid- 
cipal  election  the  presi  ling  otficer  was  the  son 
of  the  defendant.  At  the  close  of  the  poll  there 
was  a  majority  of  one  in  favor  of  the  petitioner. 
The  presiding  ofHcer  took  the  iiallotdtox  home 
and  counted  the  l)allots,  no  one  hel.ig  iM'esent  to 
represent  the  petitioner,  and  on  the  following 
day  declared  the  respondent  elected.  The  elec- 
tion was  set  aside.  The  Sheriff  nuist  he  served, 
if  it  is  intended  to  proceed  against  him. 

McNeil  V.  McNeil,  7  R.  &  G.,  67. 

11.  Objections  to  votes  should  be  stated 

specifically— Allegation  in  petition  that  "the 
votes  of  divers  persons  not  entitled  to  vote,  Ac, 
were  tendered,  and  recorded  for  the  respondents 
at  said  election,  notwithstanding  the  same  were 
objected  to  by,  and  on  behalf  of  petitioner." 

Held,  that  there  ought  to  have  been  such  a 
statement  as  would  show,  on  the  face  of  the 
charge,  cases  of  illeiially  recorded  rotes  against 
petitioner.  Possibly  some  of  the  votes  referred 
to  might  be  bad,  some  for  one  cause,  some  for 
others,  but  whatever  the  cause  is,  it  should  be 
alleged  as  a  notice  to  the  respondent. 
Douil  V.  Camiichael  et  cU    Rus.  Elec.  Rep.,  14. 


1'2.    Petition    description  and  residence  of 

petitioner  —  I'reliminai'y  olijection  lliat  tli« 
petition  dill  not  show  that  the  petitioner,  wlio 
was  a  candidate  at  the  election,  resi<led  in  the 
1)ominion  of  Canada. 

//(/(/,  that  liie  ilescription  of  the  petitioucriiH 
"of  I'ictou,  in  the  County  <if  Pietou,"  was  sutli- 
cient.  That  his  niidincr,  either  at  the  tinu'  of 
the  election,  or  as  a  jjctitioner,  was  iniiii;iii'- 
rial,  as  a  residence  in  a  foreign  country  wmM 
not  atl'ect  his  riglit  to  be  returned,  or  to  petitidii. 
Doiu'l  V.  Carmirhdel  it  nl,  Rus.  Klec.  Rep.,  14, 

13.    Petition  —  Formal  allegations  uh  to 

election  -Petition  was  headed  "  In  the  Klcitiiiii 
Court.     'I'he  Controverted   Klection  Act,    iMT.'t, 
Klection  for  the  County  of  Pietou,  holden  on  tlio 
4th  day  of  Feiiruary,  in  the  year  of  our  Lunl 
one  thousand  eight   hundred  and  seventyfniM'," 
'  and    the     tirst     clause     set     out    that     "  IVti- 
I  tioner  was  a  candidate  at  the  ab<)vc  election," 
I  and  claims  "  that  he  ought  to  have  been  rctuni- 
led,  iStc."     The  only  allegation  that  the  elcctinn 
I  in  ((ucstion  was  "for  members  for  the  lloiiso  nf 
I  Commons  "  was  contained  in  paragraphs  of  tiie 
!  petition,  com])laining  that  "  no  legal  or  piopur 
alphabetical   list    of    the    electors   of    tiic   saiil 
'  County  of  Pietou,  (jualified  to  vote  at  tiie  elec- 
tion of  members  to  serve  in  the  f/omr  of  Com- 
mons of  Canada,  <(•(•.,  was  ever  prepaied,  Ac." 
and  there  was  no  statement  in  the  petition  to 
'show   that    the   Co\nity   of  Pietou   was   in  the 
!  Province  of  Nova  .Scotia  or  in  the  Dominion  of 
\  ("anada. 

'  Held,  /ler  Hon.  W.  A.  Henry  and  Alex.  Janios, 
Q.  C,  Judges  n(/  Itoc,  overruling  preliuiiiuiry  nh- 
jections  to  the  petition  on  the  ground  of  such  de- 
fccts;  that  the  petition  sufficiently  indicated  the 
election  intended  to  be  contested. 

Per  James  \V.  Johnston,  Q.  C,  Judge  ail  hoc, 

that  the  petition  was  defective  in   not  stiUing 

facts  to  show  that  the  sid)ject  matter  was  witliin 

the  jurisdiction  of  the  Court. 

j    DouH  v.  Camiichael  et  ul.,  Rus.  Elec.  Rep.,  14, 

I 

i    14.    Petition  -  Heading —Service -Exten- 

'  sion  of  time— Validity  of  Controverted  Elec- 
.  tions  Act — A  petition  against  the  return  of  the 

respondent  headed  "in  the  Election  Court: 
j  Controverted  Elections  Act,  1874,  &c.,"  was  tiled 
I  in  the  office  of  Martin  I.    Wilkins,  as  Clerk  of 

the  Court,  and  served   upon  the  respondent  by 

the  petitioner.  The  rules  adopted  by  the  C^ourt 
I  prescribed  that  the  petition  should  be  filed  with 
I  the  Clerk  of  the  Election  Court,  and  the  Act  by 

sec.  40  reijuired  the  petition  and  notice  "  with  a 
I  copy  of  the  deposit  receipt  to  be  served  as 
i  nearly  as  may  be  in  the  manner  in  which  a  writ 


501 


ELECTION  LAW. 


502 


of  iimmona  is  servetl  in  civil  nmltorH."  Rpb-  I 
iiiHi  'lit  (li'iiit'il  timt  iiiiy  I'opy  of  tli«  ilt'poHit 
ii'icipt  liiul  lit'C'ii  HiTvi'd  u|)<iii  liiin  anil  wuh  con- 
tnidiiU'il  by  tiie  petitioiiufH  utK<'  vit.  Mr. 
Wilkiii'*'  ii))p()iiitim'iit  wan  made  liy  a  reconl 
(tiilpstiiiitially  in  tiu-se  It'inm  :  "  Hi't'onl  of  tlio 
pnitct'ilinyx  of  tlic  Su|tii'iiu'  I'onrt  of  Nova 
Soiitia  as  constitutt'd  a  Coiirt  for  tiiu  trial  of 
tuntiMviTti'd  fli'itioiiM  liy  .STtii  Viu,,  f.  10,  en- 
titlfil,  i'':i.'.  Till'  I'ouft  opened  and  organized 
prtsciit,  iti',  'riie  Court  npixjinted  tlie  I'ro- 
tliiiiiiitiiry,  Martin  I.  Williins,  to  be  the  Clerk 
(if  tiic  Court  under  tiie  provisions  of  tiie  statute 
ill  tliiit  lieiialf." 

}I<lil,  tiiat   the  Aet -tiie  Controverted  Klec-  ' 
tioiis  Aft   of   1S74— was   not    ullra   rin-t,   that  i 
iiltliiiiij;li   tlie   petition  would  have  been  more  \ 
pr  ijierly    iieaded    in    tlie   Supreme   Court    the 
lieiidiiij;  "in  tlie  Klection  Court"  followed  by! 
the  words:  "the  Controverted  Klectit-ns   Act, 
1S74,"  was  unobjectionable   (or,     per  Sir  Win. 
Vouiii,',  if  objec'tionalile,  the  objection  was  coin- 
jili'ti'ly  I'lired  by  tlie  rule  of  the  Court  discoun- 
ti'iiiiiuiiig  merely  formal  objections) ;  that  the  ■ 
pi'titidii  had  been  tiled   with  the  proper  otficer 
luiil  iiiuhl   not,    as    the    respondent  contended, 
have  liecii  properly  tiled  with  the  Clerk  of  the 
Eli'ction  Court,  organized  under  the  statute  of  ; 
IST.'l,  as  that  Court  was  defunct  ;  that  the  ser- 
vit'o  of  tlie  petition   was  bad,   as  it  should  have 
been  made  by  the  Sheriff,  and   that  the  burden  , 
of  pi'ddf  of  the  service  of  the  deposit  receipt 
rested  upon  the  petitioner,   and  had  not  been  ' 
liiiiile  out  to  the  .satisfaction  of  the  Court  ;  that 
tiii'se  defects  were  not   remedied  by  the  rule  as  I 
to  merely  formal  objections,  and  had  not  been  ' 
Wiiivod  by  the  respondent ;  anil  that  no  circum- 
stiiiucs  had  been  shown   to  justify  the  enlarge-  ' 
mint  of  the  time  for   service,   even  assuming  ; 
that  the  Couri  had  the  power  to  enlarge  it  after  ' 
tlie  expiration  of  the  time  for  service  limited 
by  the  rules. 

'1  he  petition  was  set  aside  without  costs,  as 
petitioner  had  succeeded  on  nearly  all  of  the 
eigiiteen  grounds  taken  against  liini  in  the  rule 
"Mi\  and  tlie  two  grounds  on  which  he  had  fail- 
ed came  fairly  under  the  head  of  new  points  of 
piuctice. 

Woodworth  v.  liofden,  3  R.  &  C,  571. 

IS.   Preliminary  objections  -  Disqualifica- 
tion of  petitioner  —  Recriminatory  charges — 
Ky  iireliminary  objections  it  was  alleged  that  the 
petitioner,  who  petitioned  as  candidate  and  elec- 
tor, had  been  guilty  of  corrupt  acts  in  connection  i 
with  the  election,  and  respondent  prayed  that  i 
evidence  might  lie  taken  upon  this  charge,  and  j 
that  if  sustained  the  petitioner  should   not  be 
permitted  to  proceed  any  further  with  the  peti- ' 


tion  nr  take  any  objection  to  the  evidence  of  the 
respondent. 

//(/(/,  that  preliminary  objections  arc  contined 
to  legal  objections  and  arc  in  fact  in  the  nature 
of  deni'irrer  ;  that  they  are  to  b.  objections  to 
the  form  and  siibstanciMif  the  petition,  objections 
which,  if  they  prevailed,  would  render  useless 
any  eiiijuiry  into  tiie  merits,  and  are  therefo''e  to 
be  urged  in  a  summary  manner  to  jirevent  the 
necessity,  aiul  avoid  tiie  exjiense  at  tending  a  pro- 
tracted trial  before  a  iludge  in  theCounty.  The 
only  ijuestions  to  be  witlidrawn  from  the  Judge 
at  the  trial  are  legal  i|ue.stii)ns.  He  is  the  sole 
judge  of  the  facts  and  the  merits,  an<l  with  his 
jurisdiction  this  Court  may  not  iiiterfei'e. 

'Pile  Court,  sitting  to  hear  jireliminary  objec- 
tions, Ihw  no  power  to  call  witnesses  before  it,  or 
to  send  a  dudge  into  any  County  to  try  facts  and 
report  for  its  adjudication. 

Where  the  i'es|)ondent  does  not  claim  the  seat, 
recriminatory  evidence  is  inadmissible.  His 
right  to  petition  is  not  atlected  by  any  course 
pursued  by  him  at  the  election,  and  cannot  im 
the  trial  be  ini|iiireil  into. 

A  candidate  may  also  petition  as  an  elector. 
llihtiani  V.  Titji/iir,  Kus.  Klec.  Rep.,  til  ; 
Don//  V.  Varmirhacl  il  al..  Id.,  92. 

10.    Preliminary  Objections -Illegal  votes 

—  Objection  to— Allegation  in  petition— The 
petition  stated  that  certain  illegal  votes  were 
recorded  for  and  on  behalf  of  the  petitioners. 

Objection  "  tiiat  it  is  not  stated  that  the 
alleged  illegal  votes  were  counted  for  the  respon- 
dent." 

Hi'itl,  pir  Hon.  W.  A.  Henry,  that  the  words 
in  the  petition  were  sutlicient. 

Further  objected  that  it  is  not  shown  "that 
they  were  not  struck  off." 

Hihl,  unnecessary  to  negative  thus  before 
hand,  what  may  be  alleged  and  shown  as  a 
matter  fif  defence. 

//('A/,    further,    that  the    words     "notwith- 
standing the  same  were  objected  to  by  and  on 
liehalf  of  the  petitioner"  must  bo  construed  to 
mean  oljjected  to  at  f/ie  iiroptrtimc. 
Doiill  v.  C'armkhael  et  al.,  Rus.  Elec.  Rep.,  14. 

n.  Preliminary  objection  Too  general- 
Preliminary  objection  in  the  foliiwing  form 
"As  to  the  several  paragraphs  and  ^'omplaints 
of  said  petition  there  is  not  in  any  of  Scid  para- 
graphs or  all  thereof  any  complaint  sutfic'ently 
and  legally  set  forth  to  show  any  undue  ret;'rn 
or  to  entitle  petitioner  to  the  relief  sought  by 
said  petition." 

Held,  too  general. 

Objection  "as  to  the  6th  and  7th paragraphs 
of  said  petition  they  contain  no  charge  within  the 


503 


ELECTION  LAW. 


'M 


law  oi'  Kiiit  iitcs  rt'liiting  to  flcctioiiH,  and  tlitre  \h 
IH)  ('('iliiin  legal  Huflicioiit  Htiituinuiit  of  any  <,'oiii- 
Itluint." 

//<///,  loo  gfiioral. 

I'icliiiiiii;ii-v  iilijiMtion  tliiit  "  tint  petition  ilif- 
ffrs  Miiitcrially  in  fmni  an<l  in  unlislanue  fioni  tliu 
rc(|iiii<'nients  of  cliaptcr '2S  of  tliu  Acts  of  IHT.'J, 
of  tin;  Cunaiiian  I'arlianiont  and  tin;  ndcM  niadi^ 
thcic'inidfi-and  tlicotjitir  act^and  tin;  law  in  that 
licliidf,  and  is  wholly  insullicicMt." 

Ill  III,  lo  !)(•  i(M>  general,  an  it  doi.'s  not  point 
with  siiliicicnt   ciMlainty    to    I  Ik;    natnro  of  tin; 
allrL;c(l  ilc'fc'ts. 
Dniillw  Ciirinii-hiiil  il  (il.,  Pvus.  KIcc.   |lcp.,  \\. 

IN.    l>r(>s(>nlatloii  of  petition    Special  cir- 

cuinstanct!M,  or  difliciilty  in  effecting  service 
Extendin{{  time— hi  this  ease  Mr.  .Iiisti((;  Kigliy 
granted  an  oi(|(;r  extending  the  time  of  service 
on  an  <x  parii-  application  of  the  petitioner.  Tin; 
|)etition  hail  hien  presented  on  tin;  ."ith  of 
.August,  and  handed  on  the  Sth  of  .Aiignst  lo  tin; 
,Sh(;riirio  1h;  served.  The  application  to  exteinl 
tlie  time,  whi(;h  was  niaile  on  the  Kith  .\ngiist, 
tin;  time  for-  service;  having  (;xpiied  on  the  lOtli, 
set  ont  thill  diligent  enquiries  had  lieen  madi;  for 
the  respondent  after-  thi;  .Sth,  hrit  it  did  not  ap- 
]j<;ai'  Ih.il  anythirrg  had  heeri  done  between  the 
otir  Mrid  the  Slli  of  .August.  On  this  gr'oiirrd  the 
or'dci'  for  e.vlernlirrg  the  time  was  :ittacked  mk 
havirrg  Ihcii  irir|)rovid(rrtly  giarrled,  and  the 
vali<Iity  of  the  presentation  also  ipreslioned,  the 
petil.  in  havirrg  heerr  harrded  tothe  I'rot  lionotary 
orr  tlr(;  sti'(;et,  who  orr  tlr(;  sanr(;  day  filed  il  irr  his 
olliee.     .Iirdgrrr(;rrt  was  delivered  hy 

Highy,  .(.,  "ititlr  Sept(;nrl)er',  ISS-.'.— The  orrly 
grorrirds  in  the  rrile  vlsi  which,  if  sirstaineil. 
woirld  entitle  r'csporrilerrt  to  have  the  petitiorr 
set  asiile,  are  tho.se  urnler'  which  it  was  conteri- 
di'd  l)(;for'e  nre,  that  the  words  "  jn-esented  "and 
"  pr-eserrlatiorr  "  irr  ss.  7  ^  S  of  the  "  l)orrririiorr 
Coirlrovertcd  I'Mectiorrs  Act,  1874,"  had  a  pecu- 
liar sigiriticariei;,  arrd  that  the  statnte  was  irot 
conipli(;d  with,  rrriless  the  pelitiorrer,  or  at  least 
soirre  jxtsoii  si)et;ially  (;ornmissioned  l>y  him  for 
that  pur'pnsf;,  attended  with  tlie  petition  within 
the  office  of  the  clerk,  within  the  specified  time, 
anil  tlrer-e  delivered  it  to  the  clerk;  ami  liecause 
irr  this  ease  the  latter-  had  rei-eived  it  fi-orrr  Mr-. 
Henry  on  the  street,  it  was  not  deliver-ed  at  the 
otiice  of  the  clerk,  nor  was  .Mr.  Heiri-y  empowei-ed 
to  preseirt  it,  and  it  he  was,  that  power  conlil  not 
he  ilelegati;d  hy  him  to  .Mr.  Holmes,  and,  thei-e- 
foie,  it  had  never  l<eeir  "  jrresented  to  the  Court." 

I  am  uiriilile  to  arrive  at  such  a  eonchrsion  ; 
for  it  ,s(;errrs  to  me  that  tire  re(|irii-enieirtH  of  s-s. 
3  of  s.  8  of  the  Act  have  heeir  litei-a!ly  followed, 
and  the  petitioir  delivered  at  the  office  of  the 
clerk  dirriirg  office  hours.     If  a  petition  signed 


liy  a  ipralilicil  |((;titiorier  has  with  his  eoriHint 
heen  so  deliver-ed,  I  corrsidei-  lK)lh  the  letter  iirnl 
the  spirit  of  the  Act  have  l>(;en  fullilled.  Tlii» 
I  constrirctiorr  w-ould  give  a  leasoniihle  and  ordi- 
irar-y  rrrearrirrg  to  the  lairgirage  used  hy  IJn; 
h(;gislatirr-e,  arrd  if  anything  rrror'e  forriral  miis 
intended,  I  tlrirrk  irr. ir-e  specific  larrguagi;  wuiild 
have  lieen  rrsed.  Mr-,  Merrr-y  when  he  haiidi;il 
tin;  p(;titiorr  to  thecl(;rk,  idso  harrded  to  him  llio 
rrolireof  iris  appoirrtmerrt  as  petit ioner-'s  a;.'iiil 
'  irndi-r-  tin;  !tth  Krrle,  iiird  it  has  lieerr  shown  tjiiit 
with  tin;  autlnu'ity  of  the  petitioii(;r  he  was  tinri 
on  his  way  to  ilt;liver-  tin;  [retitioir  at  Ihcolliri; 
of  tin;  clerk.  The  i-lcrk  havirrg  nrrdirlakni 
hirrrself  to  he  the  lir(;arrs  of  eorrV(;j'irig  to  jiis 
ollii-e,  arrd  .Mr.  Ilerrry  havirrg  corrsenti-d  In  IiIh 
doing  so,  arrd  it  lr;ivirrg  l)e(;ri  sliowrr  that  il  w.is 
really  delivered  tlrer-e  hy  Mr.  Iloliires  williiii 
olliee  horns  of  that  day,  it  woirld  he  as  urrri-asmi- 
I  ahle  lo  siiy  that  ther-e  was  rni  pr-eseirtatiorr,  as  if 
.Mr-.  Ilerii-y  had  'rarrdeil  it  to  the  clerk  on  llie 
orrter  side  of  tin;  lailer's  ofiii-e  door-,  iuid  llii; 
eleik  had  then  retired  withirr  tin;  olliee  iirnl  di;- 
I  livered  il  tlrer-e. 

One    of    the   gi-orrnds    rrporr    which   tire    oidiir 

j  rirade  liy  rrre  on  tin;    Kith    of    .August    last,  Im- 

lextemling  the  time  for-  s(;ivic(;  of  the  jn-tilion, 

etc.,     ami    the  service    madi;    tliei'eiiiril(;r-   wi-i-e 

attacked,    is  that  "the  said  or-il(;r-  was    iiriprn- 

viderrtly  gi-iirrt(;d   ami   withorrt   suflicieirt  i-iinse 

I  sliowrr."     This  ground,    it    seenrs    to    rrre,   must 

I  J)r-i;vail,     rridess      tin;    aflidavits     of     the    pi;li- 

I  tioin;r'  and  sherill'  U|)on  which     the    order-   wns 

gr-anted,    estalilish     tin;    exist(;irc(;,    duiirrg    the 

'  period    within    which    tlr(;    pajrei-s    could    have 

originally  heen  served  of  "special  cireuirrstarree.s 

or  diliiculty  irr   elleetiirg  .servici;  "  hy  which  .ser-- 

vice  was  prevcrili-d. 

It  a|ipear-s  fr-om  tin;  aflidavits  thai  the  petitioir 
was  pr-esented  at  the  otlicc  of  tin;  c-leik  orr  Sal  Ml'- 
day,  the  oth  of  .August,  arrd  handed  to  tin- 
I  .Sheriff' to  he  S(;r-veil  oir  the  Stir  day  of  the  same 
{  rnoirth  ;  and  that  suhseiiuently  lo  lltf  lalli  r  iliOi 
diligerrt  eiii|iriri(;s  had  lieerr  irrade  for  the  i-espnir- 
dcirt,  hut  that  he  could  rrot  he  fourrd,  nor  liis 
wherealronts  ascer-lained,  arrd  that  jier-sonal  ser- 
vice coirld  not  irr  consequeirce  bo  efl'ected.  Tiie 
aflidavits  are  silent  in  i-efererrce  to  the  ))eri"il 
wdiielr  elap.sed  hetweerr  the  day  of  pi-esenlatioir 
and  thedeliver-y  to  the  .Sheriff  for- .service.  Jf  tlie 
papei-s  had  been  delivei-ed  to  him  for  service  on 
Moirday  itoii.  ronxlal  hut  that  they  could  iiave 
been  served  within  the  five  days.  I  do  nut 
think  it  was  suflicient  to  show  "  special  ciniim- 
Mtances  or  difficulty  in  effecting  service"  on  ami 
after  the  Sth  of  August,  more  than  on  ami  after 
the  lOtli  of  August ;  nor  do  I  see  why  if  these 
affidavits  are  suHicient,  an  order  for  exteiraimi 
might  not  with  eijiuil  reason  be  upheld,  where 


50.') 


ELECTION    LAW. 


iOO 


till'  |i;i|)ir.M  liiul  Ktily  li<:oii  liiuiileil  to  tin;  Slicrill' 
on  tin;  lust  day  on  which  thi^y  <;oul(l  hi;  mci'vimI  ; 
nr  cvoii  nfU'V  lliu  tiiiK;  huil  (ilapi^uil,  iiinl  iiu 
I'l^fci'c'ijci:  Jiiuilo  ill  the  titliilavits  on  which  it  was 
ffiaiilri!  a.s  to  tlic  iiitiMvciiiii),'  tiiiic.  For  these 
iiasiJiiM  ]  am  of  opinion  liiat  tiiu  orih.'r  of  the 
Hitii  August,  anil  th(!  .sciviijc  Ihcruumhir  must 
111:  .-ill  asiilc,  anil  tin;  orilcr  iil.-<l  to  that  (sxleiit 
III, nil;  ahsoliuc  with  costs. 

Ill  ri:    KIik/'m  (Joii.ii/i/  Kliftiiiii  ('ii.-n', 
•JC.  LT.,  HH». 

11).    Presentation  of  petition    Time  Tor  - 

Election —On  the  '2~lU  March,  IH74,  an  onler 
wa.'i  olitaiiieil  hy  petitioner  from  Hon.  >lames  \V. 
.liiliMsloii,  one  of  the  Juilges  of  the  Klection 
Ciiiirl,  exteiiiling  the  tiiiK!  for  the  service  of  the 
petition  for  a  perioil  f)f  foiirteen  days  from  the 
ilateofsiieh  order.  On  the 'Jnd  April  responilent 
olil.iiiii'il  from  the  same  .Jiidj^e  an  onU^r  idt!  to 
Mlasiili;  the  (iist  order  on  the  ground,  iiifirdliii, 
that  the  petition  was  not  presented  or  tiled  within 
the  time  rei(uired  hy  the  Act.  'I'he  petitioner 
ill  tlie  allidavit  on  which  he  olitained  the  order 
exteiiding  time,  swore  positively  that  the  peti- 
tiiiii  was  tiled  on  the  '2lWi\  Marcli,  the  last  day 
fill-  presentation  of  any  petition  against  respond- 
eiil.  'I  lie  clerk  of  the  ('oiirt  promi.sed  to  return 
to  his  iillicc  after  hours,  and  leiiiain  until  lialf- 
jiast  .seven.  Ahout  half-iiast  .seven  or  twenty 
iiiimiteM  to  eight  the  petition  was  put  into  the 
ollicc  of  the  ilerk  hy  shoving  it  iiiidei-  the  door, 
the  deik  not  heiiig  in.  The  clerk  .swore  that  the 
IMlitioii  was  not  tiled  with  him,  nor,  as  he 
lii-Heveil,  wit li  any  person  in  lii.s  olfioe on  the 'J.'Jid 
March,  and  tiie  petition  itself  had  the  following 
iiiiiiiDiandum  initialed  liy  tlie  elerk  :  -"  Discov- 
ered ill  tlie  drawer  ajuiroiiriated  to  eleution  pro- 
ceedings in  the  clerk's  otiice,  about  II  a.  in. 
Marcii -.Mt.'!,  IH74." 

Ifilil,  that  the  jietition  was  not  jireseiitefl  or 
lijid  williin  the  time  re(|uireil  hy  the  Act,  and 
was  not  ])rescnted  in  the  proper  manner,  and 
that  tiiere  was  no  petition  before  the  Court  at 
tin;  lime  the  order  for  extension  of  time  was 
iihivimI  for. 

J'urwiii  V.  Joiun,  Rum.  Klec.  Rep. ,  3. 

'iO.    Recriminatory  charges    In  answer 

struck  out,  where  petitioner  did  not  claim  the 
seat  111  tliis  case  a  rule  nisi  was  obtained  to 
strike  out  the  tirst  paragraph  of  the  answer,  on 
the  ground  that  it  contained  recriminatory 
ciiargos  against  the  petitioner,  who  had  not 
elaiiiieil  the  seat. 

//':/(/,  that  the  paragraph  must  be  struck  out 
with  costs,  and  that  the  practice  adopted  to 
have  it  struck  out  was  proper. 

Hibhard  v.  Tuppe.r,  llus.  Klec.  Rep.,  94  ; 
MacKay  v.  McDoua/'' .  Id.,  96. 


'21.  Kule  rescinding  I'x  parte  order  ex- 
tending time  for  service  Res  adjudicata  — - 
Second  application  after  failure  of  the  first  — 
Costs  I'laintitf  obtained  an  ij-jinifi  order  cx- 
teinling  tlie  lime  for  service  of  an  election  peti- 
tion on  tlie  respondent,  which  after  argiiineiit  of 
a  rule  hm/  to  lescind  it,  was  rescinded  because 
the  grounds  on  which  the  original  order  (extend- 
ing the  time  had  licen  granted  weie  defeitive. 
Petitioner  then  made  a  .second  application,  and 
■  obtained  a  S(!ci)nd  ix  /nrli-  order  for  extension 
!  of  the  time  l)ased  upon  facts  which  were  fully 
known  to  the  petitioner  when  he  applied  for  the 
tirst  order.  Respondeii'  after  the  ordcir  iiiti  to 
!  set  aside  the  second  extension  and  the  service 
thereunder  had  been  obtained,  tiled  |ireliiniiiary 
obj(!clions. 

I      Ifi'lil;    that  the    second    order   for   extension 
!  could   not   bo  made  on  grounds  known   to   the 
petitioner  when  he  obtained  the  first  order,  and 
that    respondent  was   not    jircvijiited    by    tiling 
preliminary  objections  from  conlendiiig  that  the 
I  sei'vice  was  bad,   as  tln;rc  was  no  othci'  coiltse 
open  to  liiiii.     The  rule  was  made  absolute  witli- 
'  out  costs  on  the  authority  of  the  i^hin  ii.  v.  Man- 
I  rhi's/rr  anil.  Lads  Itaihrmi  (Jo.,  S  A.  it  K.,  4l.'t. 
I  Dirtie  v.   \i'oodiror/h,  4  R.  &  (».,  lOf). 

i  Jfc/d  (Koiirnier  and  Henry,  J.J.,  dixximliinj), 
\  that  the  rule  a)>pcaled  from  was  not  "  a  judg- 
ment, rule,  order  or  decision  on  a  preliminary 
oitjection  "  from  which  an  appeal  would  lie  under 
section  ID,  4'2  Vict.  c.  .'{!)  (the  Supreme  Court 
Amendment  Act  of  1S7!*). 

h'iiii/x  Co.,  X.  .S'. ,  Klcrtioii  Coup., 
{DirLi,,  V.    lVood.,rorlll),HS.  C.   11.,  I9'J. 


22.    Security    Dom.  Acts,  1K7:{,  c.  2S  s.  11 

—I'l'.r  Hon.   \V.  A.  H<!nry,  .Iiidge  ad  /tor. 

Hi'ld,  that  the  recognizance  entered  into  by 
only  one  surety  was  siitiicient  under  Dom. 
Acts,  1  H7.'{,  cap.  28  sec.  1 1 ,  sub-sec.  5. 

milliard  v.  Tniiiitr,  Rus.  Klec.  Rep.,  9. 


23.    Service  of  copy  ofpotitlon  -Extension 

of  time— -Discretion  of  Judge— R.  S.C.,  c.  9,  sec. 
10 — An  order  extending  time  for  service  of  an 
election  petition  tiled  at  Halifax  from  five  days 
to  fifteen  days,  on  the  ground  that  the  respondent 
was  at  Ottawa,  is  a  proper  order  for  the  Judge 
to  make  in  the  exercise  of  his  dincretion  under 
sec.  10  of  c.  9,  R.  H.  C. 

Samhk,  per  Ritchie,  C.  J.,  and  Henry,  J.,  that 
the  Court  below  had  power  to  make  rules  for 
the  service  of  an  election  petition  out  of  the 
jurisdiction. 

Per  .Strong,  J. — An  extremely  strong  case 
shouhl  be  shewn  to  induce  the  Court  to  allow  an 


507 


ENGLISH  BANKRUPTCY  ACT. 


508 


appeal  from  the  jinlynient  of  the  Court  below  on 
preliiiiiiriry  olijections. 

Holtir/ioii  V.  Ltiiric,  14  .S.  V.  R.,  '2'>8. 

'21.    Service  of  iietltlon    Extending  time 

for  Order  ex  parte— Setting  aside  A  rule 
nisi  t<i  set  aside  an  order  extendin),'  tlie  time  to 
serve  a  petition  was  granted  liy  the  same  elec- 
tion .Judge  (.lames  \V.  .lolmston,  Ksij.,  i).  C, 
.Judge  (III  hoc)  who  had  granted  the  order  sought 
to  l)e  set  aside. 

Ill  III,  l>i.r  Johnston,  .Judge  ml  hoc,  that  the 
,")lHt  of  the  (Jeneral  Hides  of  the  I'^leetion  Court, 
referring  all  interlocutory  (luestionsand  matters 
to  one  of  the  election  judges,  gave  tlie  .Juilge 
juristlietion  to  hear  and  dispose  of  the  rule  «/.si\ 
and  that  as  the  oi'der  extending  the  time  had 
been  made  absolute  in  the  <irst  instance,  and 
granted  ixfMrIf,  the  respondent  was  at  lil)eity  to 
move  the  .Judge  who  granted  it  to  discharge  it, 
provided  he  could  show  siillicient  reasons  why 
the  order  shoidd  not  have  been  granted  in  tlie 
first  instance. 

I'ariOHs  V.  ./oil",  Ilus.  Klee.  Flep.,  .3. 

25.    Time  for  commencement  of  trial  of 

petition — Session  of  parliament — Extension  of 
time — Section  'I"!  of  tiic  Dominion  Controverted 
Elections  Act,  Rev.  .Stats,  of  Canada,  provides 
that  "  the  trial  of  every  election  petition  shall 
be  commenced  witldii  six  months  from  the  time 
when  such  petition  has  been  presented,  and  shall 
be  proceeded  with  from  (hiy  to  day  until  such 
trial  is  over  ;  but  if  at  any  time  it  appears  to  the 
Court  or  a  .Judge  tluit  the  respondent's  presence 
at  the  trial  is  necessary,  such  trial  shall  not  be 
commenced  during  any  session  of  parliament ; 
and  in  the  computation  of  any  time  or  delay 
allowed  for  any  step  or  proceeding  in  respect  of 
any  audi  trial  or  for  the  connnencement  thereof 
as  aforesaid,  the  time  occupied  by  such  session 
of  parliament  shall  not  be  hicluded." 

Held,  ptr  Rite!  ie,  J.,  that  the  word  *'  such  " 
restricts  tiie  meaning  of  "  session  "  in  the  latter 
part  of  the  section,  and  in  tlie  computation  men- 
tioned the  only  time  to  be  deducted  is  that 
occupied  by  the  session  of  parliament,  at  which 
it  was  contemplated  to  commence  the  trial,  when 
it  was  made  to  appear  to  the  Court  or  a  Judge 
that  the  respondent's  presence  at  the  trial  was 
necessary. 

The  petitioner  cannot  deduct  from  the  six 
months  allowed  for  the  commencement  of  the 
trial  the  period  during  which  parliament  had 
been  in  session  unless  an  application  had  been 
made  to  commence  the  trial  during  the  session 
and  it  was  made  to  appear  to  the  Court  or  a 
Judge  that  the  respondent's  presence  was  neces- 
sary at  the  trial. 


Qiuierc,  whether  the  tinui  witiiin  which  to 
commence  the  trial  c<Hild  lie  eidargcd  after  the 
ex])iration  of  the  six  months, 

//(•/(/,  that  the  delay  in  commencing  the  trial 
not  having  Iteeii  accoinited  for,  the  time  liiiiiti'd 
by  the  Act  could  not  be  extended  even  if  there 
was  the  power  to  extend  after  the  expiration 
of  tiic  six  nionths. 

liuriii  et  al.  V.  Joni.s, 
Unreported,  delivered  Dec,  8th,  1S87, 


EMBEZZLEMENT - 
See  CRIMINAL  LAW. 


EMPLOYEE. 

1.  Wlio  an  employee  witiiin  meaning  of 

Government  Railway  Act,  Acts  1881,  c.  25, 
s.  109,  (Dom.) 

See  GOVERNMENT  RAILWAY  ACT. 

Kearney  v.  Oak-en  et  at.,  '20  N.  S.  R., 
(8  R.  &  G.),  .SO. 

2.  Employee  of  Customs  House  — Sub- 
collector  of  Customs  held  an  employee  within 
5th  R.  8.,  c.  4,  s.  67,  (N.  .S.) 

Munro  v.  Elliott,  20  N.  S.  R.,  (8  R.  &  G.),  330. 

See  CUSTOMS  HOUSE  EMPLOYEE. 


ENGLISH  BANKRUPTCY  ACT. 

County  Court  Judge  acting  in  aid  of  Eng- 
lish Court— Appeal— A  County  Court  Judge 
was  applied  to  to  act  in  aid  of,  and  as 
auxiliary  to  the  London  Bankruptcy  Court,  in 
relation  to  property  of  an  English  bankrupt 
situated  in  his  district,  and  made  an  order 
accordingly. 

Held,  McDonald,  C.  J.,  dissenting,  that  no 
appeal  would  lie  from  such  order,  to  the 
Supreme  Court,  either  under  the  Insolvent  Act 
of  Canada  which  had  given  certain  powers  to 
the  Judge  in  reference  to  insolvents,  or  under 
the  County  Court  Acts,  inasmuch  as  his  order 
was  not  made  by  reason  of  any  jurisdiction 
conferred  by  those  Acts,  but  by  reason  of  the 
Imperial  Bankruptcy  Act  which  did  not  give 
such  appeal. 

Rt  Carvell,  ex  parte  Qliddon,  5  R.  &  G.,  410. 


509 


ESTATE. 


510 


EQUITY  COURT. 
1.   roHcr  of,  over  InRints'  real  estate— 

The  powt'i'  <if  tliu  K((uity  ('oiirt  over  the  reiil 
cstiitu  iif  iiifiints  in  this  I'l-ovincu  is  more  exteii- 
sivi'  than  any  snoh  power  wiiieii  litis  ever  lieen 
exeirised  in  Knghind. 

If  it  he  shown  tliat  hy  the  dinposiil  of  tlie 
pnjpfity  the  interest  of  tlie  infant  will  he  snb- 
siiuiti.illy  pronK)te(l  on  aeeount  of  any  portion 
(if  tlie  property  heing  exposed  to  waste  ordilapi- 
(liitidii,  or  heing  wholly  nnprodiietive,  or  forany 
(itiiur  rea.sonahle  eause,  the  Court  has  a  disere- 
tidiiary  power  to  order  a  sale. 

Wiiere  the  whole  pro])erty  yielded  an  iiieome 
of  (inly  Sl(K»,  and  the  infants'  undivided  share 
upon  a  sale  woidd  produec  four  or  five  times  as 
miiih  as  their  share  of  the  rental, 

//'/(/,  that  the  discretionary  power  of  the 
Court  was  wisely  exercised. 

//(/(/,  also,  tliat  the  discretionary  power  of  the 
Cduit  to  order  a  sale,  was  not  determined  liy  the 
appointment  of  a  guardian,  and  that  where  the 
guardian,  who  was  the  mother  of  the  infants, 
was  opposed  to  tiie  sale  and  neglected  or  re- 
fused to  lind  security,  as  required  hy  the  RevLstid 
Statutes  (.'hd  series),  chapter  124,  section  51, 
the  Court  had  power  to  remove  such  guardian 
and  auhstitute  in  her  stead  a  suital)le  person  as 
next  friend  to  tile  the  necessary  hond  and  effect 
the  sale. 

Ill  re  Estate  o/Lawlor,  2  N.  S.  D.,  153. 


2.  Equity  Judge  disqualified  by  profes- 
sional connection  with  suit— Ritchie,  E.  J., 
when  at  the  Bar,  had  been  professionally  con- 
sulted in  reference  to  the  suit  wliieh  was  after- 
wards instituted  \>y  bill  in  equity,  and  on  that 
account  had  at  first  declined  to  act  in  the  mat- 
ter, hut  had  afterwards,  to  facilitate  matters, 
undertaken  to  sign  any  merely  pro  forma  orders 
in  the  cause,  and  had,  with  this  understanding, 
signed  an  order  to  appoint  an  examiner  to  take 
evidence.     On  appeal  from  this  order, 

Held,  that  under  4th  R.  S.,  cap.  95  s.  6,  which 

went  further  than  the  English  rule,  the  Judge 

was  discpialified,  and  the  order  must  be  set  aside. 

Harrii,  v.  Wallace,  3  R.  ,&  C,  326. 


EQUITABLE  RIGHTS. 

Held,  tliat,  after  the  passage  of  the  Judi- 
cature Act,  the  .ludgo  presiding  at  the  trial  was 
bound  to  give  eU'ect  to  the  efiuitahle  rights  of  the 
pai'ties,  though  the  cau.se  had  been  at  issue  pre- 
viously. 

MrPherxoH  V.  McDomihl,  U  R.  &  (i.,  242. 


:  ESCAPE. 

1.    Arrest  for  disobedience  of  summons  to 

appear   and  testify  —  Escape  and  pursuit  — 
Entering  house — 

!        See  CAJfADA  TEMPERANCE  ACT,  16. 

i 

!     2.  Measure  ofdamages  in  action  for -In  an 

I  assessment  of  damages  after  default  in  an  action 
against  a  sheriff  for  an  escape,  the  coroner  direc- 

■  ted  the  jury  that  if  the  debtor  had  been  allowed 

1  to  escape  through  any  negligence  in  taking  the 
proper  precautions  to  prevent  such  on  his  part, 

I  they  were  bound  to  find  the  full  amount  "  or  at 

I  least  heavier  damages. " 

I  Held,  that  this  was  a  misdirection,  the  pro- 
per measure  of  damages  lieing  the  pecuniary 
value  of  the  custody  at  the  moment  of  escape. 

Mvliae  V.  Dunlop,  3  R.  &  G.,  315. 


EQUITABLE  PLEAS- 
Set  PLEADINGS. 


ESCHEAT. 
Failure  of  inheritable  blood-  Where  there 

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

Salter  v.  Hwjhen,  1  Old.,  409. 


ESCROW- 
iS^ee    DEED,   18    &    24. 


ESTATE. 
Intestacy— Time  from  which  computed— 

For  the  purposes  of  distribution  among  the  next 
of  kin,  intestacy  will  be  computed  from  the  death 
of  the  testator,  and  not  from  the  date  of  the 
events  which  produced  the  intestacy. 

J.  C,  by  will,  bequeathed  to  his  natural 
daughter,  Mrs.  B.,  a  certain  fund,  and  in  event 
of  her  death  without  lawful  issue,  it  was  to  be 


511 


ESTOPPEL 


.')12 


divided  among  liis  iiiecoH  in  utjual  proportionH. 
Mrs.  IJ.  1.:m1  cliildien,  but  sliii  iin<l  they  peri.slu.'d 
at  sea  in  tiie  same  sliip,  tiie  ciiviinistances  of  tlie 
calamity  being  utterly  unitnown.  Tliere  lieing 
no  ])i'esunipti<)ii  of  law  that  tlie  mother  survis-ed 
the  ijjiildren,  the  nieces  could  not  take  uniler  the 
Mill,  and  tiie  fund  consequently  went  to,].  C's 
next  of  kin. 

Tlie(iuestion  wasas  to  tlie  division  of  this  fund 
among  tlie  lu^xt  of  kin.  J.  C.  had  a  l)iotlier  and 
a  sister  who  pre-deceased  him,  and  a  sister,  Mrs. 
W.,  who  survived  him,  but  died  before  the 
occurrence  of  the  catastrophe  in  which  Mrs.  B. 
and  iior  cliildren  perished,  leaving  two  daughters, 
whose  children  now  claimed  to  share  in  the  fund. 
It'  J.  C's  intestacy  was  to  be  computed  from  the 
time  of  Mrs.  IJ.'s  death,  they  would  ))e  excluded  as 
))eing  collaterals  too  remote  ;  if  from  the  time  of 
hid  own  death,  they  would  be  entitled  to  one- 
third  of  the  fund,  i.  e.,  their  mother's  share. 

Ili'/d,  that  the  intestacy  must  be  computed 
from  tlie  time  of  J,  C's  death,  and  therefore  tiiey 
were  entitled. 

Harlihorub  tt  al.  v.  IVilkim  tt  «'., 
1  X.  S.  D.,  128. 


ESTATES  TAIL. 

1.  2nd  R.  S.,  c.  112,  retrospective -Cf. 

5th  R.  S,,  c.  88— Tlie  Provincial   Act,   ch.  112, 
Rev.  .S;.ats.,  (Second  series)  is  retrospective,  and 
abolishes  absolutely    all    estates    tail,  even   al- 
though a  valid  remainder  be  limited  thereon. 
In  re  Estate  o/Simpxon,  1  Old.,  317  it  7iii. 

2.  Estates  Tail  where  valid  remainder 

limited —  Estates  tail  abolished  even  where  a 
valid  remainder  was  limited  thereon. 

In  re  Estate  of  Simpson,  1  Old.,  317,  affirmed. 
JMcKcHziti  V.  McKenzie,  2  Old,,  178. 


ESTOPPEL. 
1.    Action  on  bond  for  faitbrul  discbarge 

of  duty  by  public  official — Fraud— Negligence 
— Liability  of  surety  —  Proximate  cause — 
Estoppel — 111  an  action  against  defendant  as  one 
of  the  sureties  on  a  bond  purporting  to  have 
been  given  for  the  faithful  discharge  of  the 
duties  of  the  agent  of  the  Government  Savings 
Bank,  at  Annapolis,  it  appeared  that  the  bond 
and  the  affidavit  of  justification  reipiired  to 
accompany  it  were  signed  by  the  defendant  in 
blank  ;  that  the  bond  at  the  time  was  without 
seals,  date  or  amount,  and  that  the  affidavit  was 


never  sworn.  Tiie  bond  was  subseipiently  tilleil 
in  for  (loul)le  the  amount  authorized  by  defcnii- 
ant,  and  the  affidavit,  after  having  been  lilluil 
in,  was  certified  as  sworn  by  u  Justice  of  tlio 
Peace. 

//t:/(l,  McDonahl,  C  J.,  ilixieiitlni/,  tiiat  tiie 
bond  having  been  accepted  on  the  faith  of  the 
certiticate  of  the  Justice,  and  tlie  certificate  imt 
iiaving  lieen  jirocured  or  made  by  defendant,  tlie 
latter  could  not  be  made  liable  for  the  default  of 
the  officer. 

Queen  v.  Chesley,  6  R.  &  <;.,  .113  ; 
G  C  L.  T.,  4.-)4, 

Ok  appeal  to  the  Suprxme  Co\rt  of  Canada, 

Held,  reversing  the  judgment  of  the  Court 
below,  that  the  making  of  the  bond  was  the 
real  cause  of  its  acceptance,  and  the  defeiidiint 
being  estopped,  the  Crown  was  entitled  to  judg- 
ment. 

li.  V.  CheMey,  9  C.  L.  T.,  21-2. 

2.  Agreement  not  to  distrain  —  Mrs.  M. 

received  from  plaintiffs  certain  articles  of  fiinii- 
ture,  under  the  following  written  memoraMdum 
signed  by  her :  "  Received  from  Messrs  F.  & 
Son  the  following  articles  of  furniture  for  wiiicli 
I  am  to  pay,  &c.  The  said  furniture  to  leinaiii 
the  property  of  W.  F.  &  Son  till  paid  for  in  full, 
and  in  the  event  of  non-payment  the  said  \V.  1'. 
it  Son  can  take  the  furniture  back."  The  de- 
fendant who  was  Mrs.  M's.  landlord  before  the 
furniture  was  delivered,  signed  the  following 
written  memorandum :  "  The  bearer  Mrs.  M. 
being  about  to  purchase  some  furniture  from 
W.  F.  &  Son,  and  my  rent  being  guaranteed,  I 
hereby  agree  not  to  take  the  furniture  so  to  he 
provided  by  \\ .  V.  &  Son,  for  any  rent  that  may 
become  due." 

Held,  that  defendant  was  estopped  from  dis- 
training on  the  furniture  so  supplied. 

Fra.-<er  et  al.  v.  Wallace,  2  R.  &  C,  337. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  affirming  the  judgment  below,  that  the 
memorandum  signed  by  defendant  constituted 
a  binding  contract  or  arrangement  with  F.  & 
Son  not  to  distrain. 

Wallace  v.  Fraser,  2  S.  C.  R.,  522. 

3.  Bank  shares-Transfer  of-Estoppd- 

Action  was  brought  against  defendant,  as  trans- 
feree of  shares  in  the  plaintiff  Bank,  for  calls. 
There  was  no  valid  transfer  of  the  shares  under 
the  Act,  but  defendant  had  paid  calls,  given  a 
receipt  for  a  dividend,  combined  with  others  in 
appointing  a  proxy,  and  being  present  at  the 
trial  and  hearing  all  this  evidence,  had  not  pro- 


513 


ESTOPPEL. 


514 


duced  any  evidence  or  offered  his  own  testimony  i 

in  reply.  i 

//(/(/,  tiiat  lie  must  be  treated  as  a  shareholder.  1 

Bank  of  Live.rpool  v.  Bigeloic,  3  R.  &  C,  23«.  ! 

4.  Bond  given  to  Municipality  as  security ; 

for  officer  —  No  seals  aflixed  by  sureties  — 
Affixed  by  principal  before  delivery — Sureties  ; 
estopped  from  setting  up  want  of  seals  after  ■■ 
acceptance  of  bond — Defendants  signed  tiieir  , 
iiajnc's  lis  sureties  to  an  unexecuted  bond  for  j 
tlie  faithful  discharge  by  M.  of  his  duties  as  ' 
clerk  and  treasurer  of  the  plaintiff  Municipality,  I 
but  affixed  no  seals.  M.  8ul)se([uently  attached  j 
seals  and  his  own  signature  to  the  bond  and  i 
forwarded  it  by  mail  to  the  Warden  of  the 
Municipality. 

//(/(/,  /xr  Weatherbe,  J.,  and  McDonald,  J., 
tiiat  tiie  bylaw  under  which  the  bond  was 
taken  was  ijiira  rb-cs,  and  that  the  defendants 
were  estopped  from  denying  their  seals  after 
tiie  plaiiitifl'  had  accepted  the  instrument  from 
M,  us  .security. 

Per  McDonald,  C.  J.,  and  Ritchie,  J.,   that 
defendants  were   liable  as  guarantors  on   the 
instnmient,  having  signed  it  with  the  knowledge 
that  it  was  to  be  used  as  security. 
Mmki/iaUty  of  Shtllmrne  v.  Marshall  el  al.,      i 

7  R.  &  G.,  171  ; 
7  C.  L.  T.,  248. 

On  appeal  to  the  Supreme  Court  of  Canada, 
III  Id,  Henry,  J.,  heiitanlc,  that  as  the  res- 
pondents had  proved  a  jn-ima  facie  case  of  a 
l)ond  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 
consistcrit  with  his  evidence  that  it  was  duly 
executed,  the  onus  of  proving  want  of  execu- 
tion was  not  thrown  off  the  appellant,  and  the 
respondents  were  entitled  to  recover. 

Marshall  v.  Municipality  of  Shelbume, 

14S.  C.  R.,737; 
7  C.  L.  T.,  130. 

5.  By  conduct  —  One  Mosher  conveyed  a 

nundjer  of  horses  and  colts  to  the  plaintitf  by  bill 
of  sale  as  security  for  an  alleged  debt.  Plaintiflf 
exchanged  one  of  the  colts  for  a  horse.  This  was 
afterwards,  at  plaintiflfs  request,  exchanged  for 
anoti'er  horse  which  was  delivered  to  plaintiflf, 
but  plaintiff  requeoted  Mosher  to  keep  him.  He 
did  so,  and  fed  the  horse  with  the  hay  transferred 
to  plaintiff  by  the  bill  of  sale.  The  J  udge  of  the 
County  Court  considered  the  evidence  of  the 
debt  which  formed  the  consideration  of  the  bill 
of  sale  unsatisfactory,  but  he  negatived  fraud  in 

17 


the  transaction.  He  also  considered  that  the 
estoppel,  which  could  otherwise  be  relied  on 
against  plaintitf,  ceased  to  operate  after  notifi- 
cation by  plaintiff  to  the  defendant  of  his  claim 
of  property  in  the  horse. 

Held,  that  the  decision  of  the  Judge  of  the 
County  Court  for  plaintiflf  must  be  affirmed. 

Per  DesBarres,  J. — That  the  evidence  of  the 
dealings  l)etween  defendant  and  plaintiflf  did  not 
show  any  fraud. 

Per  Jume.3,  J. — That  there  was  no  estoppel  at 
any  stage  of  the  transactions. 

Per  McDonald,  J. — That  even  assuming  that 
the  bill  of  sale  was  void,  the  horse  could  not  be 
levied  (m,  as  it  had  never  been  the  property  of 
Mosher,  but  was  the  property  of  plaintiflf,  how- 
ever obtained. 

Weatherbe,  J.,  dubitante. 

AndrewH  v.  Bonnett,  2  R.  &  G.,  313. 

6.  By  conduct— John  Brown  died  In  1817, 

having  devised  land  to  his  son,  John  Brown,  and 
his  heirs  ;  but  if  he  had  no  children,  and  should 
die  before  his  wife,  Susannah,  then  to  her  for  life, 
and  at  her  death  to  Janet  West  and  her  heirs. 
Janet  Wrist,  a' id  Isaac  West,  her  husband,  con- 
veyed the  land  in  1848  to  the  John  Brown  who 
in  1874  conveyed  to  plaintiflf,  but  Isaac  West 
having  afterwardf  obtained  possession  of  the 
land  through  his  son,  to  whom  it  had  been  leased, 
refused  to  deliver  it  to  plaintiflf,  who  brought 
ejectment. 

Held,  that  the  conveyance  of  Janet  West's 
interest,  though  it  would  not  have  been  good  if 
made  to  a  stranger,  ft-as  valid  as  having  been 
made  to  the  plaintiflf,  who  had  the  fee,  and  even 
if  not  so,  the  defendants  W'ere  estopped  by  their 
conduct  from  claiming  the  land. 

Fleming  v.  Weit  et  al.,  2  R.  &  G.,  294  ; 
1  C.  L.  T.,  709. 

7.  Consideration  expressed  in  agreement 

for  loan  of  money — Borrower  estopped  from 
setting  up  other  considerations  —  Where  a 
plaintiflf  under  a  written  agreement,  loaned 
money  to  the  defendant  for  certain  considera- 
tions expressed  in  said  agreement. 

Held,  per  Dodd  and  Wilkins,  JJ.,  that  plain- 
tiflf was    estopped    from  going  outside  of  the 
agreement,  and  showing   that  the   money  was 
lent  on  other  considerations  than  those  expressed. 
Barss  v.  Stro7ig,  1  N.  S.  D.,  450. 

8.  Conventionalllne  and  estoppel  thereby— 
Sec  BOUNDARIES. 

0.   Conveyance  of  land  In  fee  simple,  by 

the  mortgagee  with  consent  of  mortgagor. 


515 


ESTOPPEL. 


516 


estops  the  latter — I'luintifTs  father  inortgiigeil  a 
lot  of  liiiid  to  defendant,  and  sul)3e(iuently 
defendant,  witli  tlie  consent  and  by  the  diiection 
of  Ilia  father,  conveyetl  the  U)t  in  fee  tiiniplu  to 
N.  M.  After  the  (U;atli  of  tlie  father  i)laintiir 
broiigiit  suit  under  his  will  against  defendant  for 
the  land. 

JIdd,  that  the  father  by  consenting  to  the 
conveyance  of  the  land  in  fee  simple  to  N.  M. 
was  estopped  from  redeeming  it,  and  as  plaintiff 
was  in  no  better  position  tiian  her  father,  judg- 
ment fliiould  be  for  defendant. 

JfcLcod  V.  CmiijMl,  ,3  N.  S.  D.,  456. 

10.  Deed  —  Estoppel  by  inference  ft-om 

words  in  deed— An  estoppel  may  be  sustained 
upon  a  direct  and  irresistible  inference  from  the 
words  of  a  deed. 

Archibald  v.  Blols,  James,  ,307. 

11.  Deed  made  to  party  who  mortgages, 

recorded  but  not  delivered — Grantor  and  par- 
ties claiming  through  him  estopped  from  deny- 
ing, as  against  mortgagee,  execution  of  deed — 

Sec  DEED,  40. 

12.  Deed— firantor  estopped  ft'om  denying 

right  of  way  over  street  shown  on  plan  referred 
to  in  deed — I'laintifl'  and  the  two  defendants 
purchased  a  tield,  divided  the  front  portion  into 
lots  according  to  a  certain  plan,  laying  off  two 
lots  as  proposed  streets,  connecting  an  existing 
street  with  the  undivided  rear  portion  of  the 
land  and  furnishing  the  only  access  to  that  rear 
portion  from  any  existing  street.  The  defen- 
dant. P.,  purchased  the  undivided  reapportion 
and  two  of  the  front  lots  one  on  each  side  of  one 
of  the  proposed  streets,  the  said  lots  being  des- 
cribed in  the  deed  as  bounded  on  the  north  and 
south  respectively  by  the  street  in  question. 

Held,  that  the  plaintiff  was  estopped  as  a 
grantor  in  the  deed  to  defendant,  P.,  from  de- 
nying that  a,  right  of  way  was  granted  over  the 
land  designated  in  the  deed  and  on  the  plan 
under  which  the  sales  were  made  aa  proposed 
streets. 

Pugh  V.  Peters  et  al.,  2  R.  &  C,  139. 

13.  Estopped  by  Statute  —  County  of 

Pictou  held  to  be  estopped  by  Chapters  66  and 
70  of  the  Acts  of  1879,  passed  after  hearing  the 
Gustos  of  the  County  by  counsel  before  a  Com- 
mittee of  the  Legislature  from  disputing  the 
appraisement  of  lands  taken  for  Eastern  Exten- 
sion. 

In  Re  Pictou  Railway  Damages,  1  R,  &  G. ,  448. 

For  full  statement  of  this  case  and  decision  on 
appeal  to  Supreme  Court  of  Canada, 

.^ee  ASSESSMENT,  V.  4. 


14.  Evidence-Defendant  reading  note  In 

evidence. — The  note  sued  upon  having  been 
read  in  evidence  at  the  instance  and  on  the 
motion  of  defendant's  counsel, 

//(/(/,   that    he    was   thereby    estopped   from 
denying  its  validity. 

The  Bank  o/A'bi'a  Scotia  v.  Chi/»nan, 

'2N.  S.  D.,4;i8. 

15.  Forged  signature  —  Ratification  of- 

The  defendant,  Farnsworth,  was  sued  as  maker 

of  two  i)romissory  notes   which   purported  to 

have  been  made  by  Farnsworth  and  indorseil  l)y 

one  (iraves,  who  was   joined   as    cci-defundaiit. 

At  the  trial  defendant  swore  tliat  he  had  ni'itlitr 

signed  the  notes  in  ([uestion  nor  authorized  any- 

j  one  to  sign  them  for  him.    This  fact  was  aihiiit- 

1  ted  and  was  found  in  his  favor,  but  it  appcart'il 

I  that  previous  to  the  trial,  when  payment  of  the 

!  notes  was  demanded,  Farnsworth  state<l  tiiat  lie 

had  signed  the  notes  for  the  accomnuxlation  of 

I  his  co-defendant  (Jraves,  and  made  an  oiler  of 

I  payment  provided  time  was  given,  and  that  in 

consetjuence  of  this  admission  plaintiff  refniineil 

froiii    taking    proceedings    against    (iraves  for 

forgery. 

Held,  that  defendant's  (Farnsworth's)  conduct 
amounted  to  an  adoption  and  ratification  of  the 
signatures  to  the  notes,  and  that  he  was  liiible 
tliereon. 

Per  Weatherbe,  J.,  that  the  case  on  the  point 
of  detriment  or  alteration  of  position  came  witii- 
in  the  cases  of  Fitzrandolph  v.  Shanly  el  al.,  2 
R.  &  G.,  199,  and  Knights  v.  li'hiffcu,  L.  R., 
5  Q.  B. ,  660,  and  that  on  this  point  the  plaintiff 
was  entitled  to  judgment. 

The  Union  Bank  v.  Fammvorth  el  al. , 

7  R.  &(i.,8'2; 
7  C.  L.T.,141. 

16.  Judge  of  Probate  lield  not  estopped 

from  opening  accounts— The  acting  executor 
of  R.  H.  B.  and  the  acting  executor  of  E.  A.  B., 
his  wife  (R.  H.  B.  having  been  executor  of  C), 
made  a  memo,  as  follows  : — "  It  is  mutually 
"  agreed  between  J.  W.,  the  acting  executor  of 
"R.  H.  B.,  and  myself,  the  acting  executor  of 
"  Mrs.  R.  H.  B. ,  that  the  settlement  made  by  him 
"on  the  eighteenth  day  of  December  last,  at  the 
"Probate  Court  at  Annapolis,  to  abide  the  de- 
"cree  then  made,  by  his  paying  over  to  iiii;  one 
"hundred  dollars,  part  of  the  percentage  or 
"commission  allowed  in  said  settlement,  which 
"  sum  I  have  this  day  received."  Sgd.  "J.  C.T.' 

J.  C.  T.,  acting  executor  of  E.  A.  i^.,  had 
always  objected  to  the  settlement  referred  to  in 
the  memo. 

J/eld,  that  the  memo,  did  not  estop  the  Judge 
of  Probate  from  opening  the  accounts. 

In  re  Estate  of  Bath,  2  R.  &  C,  403. 


517 


ESTOPPEL. 


518 


t1.   MortgaKe  given  by  one  party   for 

money  advanced  to  another  —  Mortgagor  es- 
topped from  setting  up  fraud  on  part  of  such 

other  —  I'liiintitf  liroviglit  .suit  ti)  foi'uelose  a 
mnitgiigt'  liiiiilf  l>y  iletfinliiiit,  wlm  allcj^i'd  in 
hiT  iuiswur  tliiit  slit!  luul  lici'ii  indiufil  to  sign  it 
by  tlio  fraud  iif  Thos.  .S.  Fouler.  Her  tt'sti- 
inmiy  as  to  the  iiii|io.sitioii  ullcp'd  to  liavu  lieen 
practised  upon  her  was  contnidieled  liy  Fowler, 
and  it  was  in  prooi  that  she  ha  I  re-exeeuted  the 
iiiatninient  in  the  presence  of  the  clerk  of  plain- 
titf's  solicitor,  who  had  deferred  paying  over 
the  money  in  order  to  assure  himself  thai  defen- 
dant understood  the  tran.saction.  There  was 
also  evidence  that  defendant  was  aware  of  the 
nature  of  the  instrument  shortly  after  signing  it, 
ami  did  not  repudiate  it,  hut  entered  into  nego- 
tiiitions  toohtain  security  from  Fowler,  who  had 
retained  the  money  advanced  on  the  security  of 
the  mortgage.  The  t'ourt,  in  view  of  the  evidence, 
concluded  that  defendant  when  she  signed  the 
instrument  must  have  understood  its  nature, 
.md  held  that,  whether  she  did  or  did  not  under-  ! 
stand  it,  she  was  estopped,  as  against  plaintiff,  [ 
from  saying  that  she  was  not  aware  of  its  con-  i 
tents.  ! 

Kuniear  v.  Siln.r,  R.  E.  D.,  101.  i 

18.  Must  be  pleaded— In  an  action  against 

the  City  for  removing   plaintiff's  steps,  it  ap  j 
peared  in  evidence  that  when  the   City  Engi-  i 
neercalled  on  plaintiff  in  reference  to  the  alleged 
encroachment  on  the  street,  plaintiff  asked  the  , 
Engineer  to  give  him  the  line   of   the  street, 
whereupon  the  F'ngineer  niarkeil  it  on  the  corner 
of  the  steps  with  a  pencil.     Defendant's  counsel : 
contended  that  plaintiS'  was  bound  by  this  pro- 
ceeding under  section  270  of  the  Act  of  Incor-  i 
poration,  and  that  not   having  appealed  under 
section  271,  he  was  estopped. 

ffcM,  that  the  defendant  could  not  take  advan- 
tage of  the  estoppel,  not  having  pleaded  it. 

Evann  v.  The  City  of  Halifax,  3  R.  &  G.,  321. 

19.  Must  be  pleaded  — In  an  action  to 

recover  consideration  money  expressed  in  a  deed, 
if  estoppel  is  relied  upon  it  must  be  pleaded. 

McDonald  v.  Bloin,  3  N.  S.  D.,  298. 

20.  Principal  and  agent  —  Undisclosed 

principal— Representations  by— Plaintiflfs,  who 
held  a  bill  of  sale  on  a  quantity  of  lumber, 
authorized  its  sale  by  M.  &  L.,  and  assented  to 
a  sale  to  the  defendants,  to  whom  they  repre- 
sented M.  &  L.  as  owners.  After  the  sale  and 
part  payment  of  the  purchase  money,  plaintiflfs 
disclosed  themselves  as  owners,  and  demanded 
the  balance  due,  which  defendants,  notwith- 
standing, paid  to  M.  &  I . 


Hi/(l,  reversing  the  judgtnent  of  the  County 
Court  Judge,  that  plaintiffs  were  entitled  tore- 
cover  as  the  real  principals  in  tlie  transaction, 
and  were  not  estopped  by  the  representation. 

Weatherbe,  .1.,  illsioilltiii,  on  the  ground  that 
M.  iS:  L.  were  not  shown  to  have  acted  as  agents 
of  plaintiffs. 

Laylon  it  al.  v.  Smith  <7  at.,  5  R.  &  «.,  331. 

21.  Receipt  in  deed    Effect  of-\o  plea 

necessary  to  take  advantage  of  receipt  as 
estoppel  —  The  recei[it  of  the  con.°ideration 
money  in  a  deed  is  conclusive  at  Common  Law, 
but  a  Court  of  Kipiity  looks  to  tiie  real  character 
of  the  dealing,  and  gives  the  vendor  a  lien  on 
the  estate. 

/'i  r  Young,  C.  J., — It  is  not  necessary  for 
defendant  to  have  a  plea  in  estoppel  in  order  to 
take  advantage  of  the  receipt  in  a  deed. 

Xelnon  V.  Connorn,  I  Old.,  406. 

22.  Representations  as  to  lands  Included 

in  mortgage  — Defendants,  desiring  to  borrow 
money  on  mortgage,  took  the  plaintiff,  wlio  was 
the  solicitor  of  the  mortgagee,  ujwn  the  land 
offered  as  security,  and  pointed  out  the  boun- 
daries of  the  land.  Plaintiff  drew  up  a  mortgage 
in  which  the  land  was  described  as  that  on  which 
defendants  resided,  but  the  bouiularics  given 
were  shown  by  pai'ol  evidence  not  to  inchiile  the 
portion  on  whicli  they  r<!sided,  although  it  was 
clearly  the  intention  of  all  parties  that  this 
portion  should  be  included  in  the  mortgage. 
Phiintiff  having  taken  an  assignment  of  the 
mortgage,  foreclosed  it,  and  bought  in  the  pro- 
perty at  the  sheriff's  sale,  the  description  in  the 
sheriff's  deed  following  that  in  the  mortgage. 
Plaintiff  then  brought  action  of  ejectment,  and 
defendants,  as  to  this  portion,  pleaded  that 
plaintiff  had  no  title. 

Held,  per  James  J.,  that  defendants  were  not 
estopped  from  saying  that  the  land  in  question 
v,-a3  not  included  in  the  mortgage,  but  that 
the  verdict  for  plaintiff  must  be  sustained,  as  it 
was  the  clear  intention  to  include  the  portion  on 
which  defendants  resided,  and  the  ambiguity 
had  been  cleared  up  by  parol  evidence. 

Per  Young,  C.  J.,  DesBarres  and  Smith,  JJ., 
that  the  defendants  were  estopped  by  their  re- 
presentation that  the  whole  of  the  land,  includ- 
ing the  part  in  question,  was  to  be  comprised  in 
the  mortgage. 

FiUkrton  v.  Ibhitson,  et  al.,  3  R.  &  C,  225. 

23.  Representation  as  to  ownership  of 

goods — Transfer  of  title  by  delivery  —  Plain- 
tiff was  in  the  habit  of  supplying  H.  with  money 
and  goods  for  trading  purposes  on  the  condition 


619 


ESTOPPEL. 


520 


tliivt  all  goods  promired  by  H.  by  way  of  pur- 
chase orexoliangc,  were  to  Iks  tlelivercd  to  plain- 
tiff, wlio  was  to  sell  them  to  pay  his  advances. 
(J.  having  obtained  judgment  against  H.,  was 
about  to  levy  on  a  schooner  belongnig  to  H.,  in 
which  ]>Iaintiff  liad  an  interest,  and  whicli  he 
was  aliout  to  sell,  when  he  was  induced  to  ab- 
stain from  doing  so  by  plaintiff,  who  informed 
him  that  the  schooner  Eaiteini  Clipper  was  then 
in  Ouysboro',  that  the  goods  on  board  were  those 
of  H.,  and  that  he  could  levy  upon  them  there, 
or  wait  nntil  the  vessel  came  to  Halifax.  O. 
failed  to  levy  on  the  goods  then  on  board  the 
Ewitcrn  Clipper,  but  caused  a  levy  to  be  made 
on  a  cargo  wiiich  arrived  at  Halifax  four  months 
afterwards,  and  which  had  been  procured  in  the 
same  way.  On  the  evening  previous  to  the  IcN-y 
H.  had  gone  to  plaintiff's  office  and  there  made 
and  delivered  to  plaintiff's  bookkeeper  a  memo- 
randum in  the  form  of  a  bill  of  lading  of  the 
goods,  and  had  received  instructions  where  to 
land  the  goods.  He  went  to  the  place  indi- 
cated, and  was  preparing  to  land  the  goods 
wlien  they  were  levied  upon  by  the  Sheriff. 

Hdd,  that  what  occurred  in  plaintiff's  office 
was  a  delivery  of  the  cargo  to  plaintiff,  anci  that 
the  latter  was  not  estopped  by  his  rcpresei>ta- 
tion  to  (!.  from  taking  the  transfer  of  the  goods. 

McDonald,  C.  J.,  and  McDonald,  J.,  dUieiit- 
imi. 

For.<ylh  v.  Bell,  6  R.  &  O.,  374 ; 
6  C.  L.  T.,  489. 

24.    Representation  as  to  ownership  of 

horse— Seizure  by  Sheriff — Plaintiff  brought 
action  against  the  defendant,  a  Sheriff,  for  the  ; 
seizure  and  sale  of  a  horse  on  an  execution  against  j 
one  Nicholson,  who  had  some  time  before  the 
seizure  been  the  real  owner,  although  when 
taken  the  animal  was  in  the  possession  of  the 
plaintiff,  who  claimed  it  under  an  alleged  pur- 
chase. Defendant's  attorney  testified  that  before 
seizure  plaintiff  had  told  him  the  horse  belonged 
to  Nicholson,  and  that  on  the  faith  of  that  state- 
ment the  Sheriff  had  been  induced  to  seize.  Be- 
fore the  sale,  however,  plaintiff  notified  the 
sheriff  that  the  horse  was  his. 

Held,  reversing  the  decision  of  the  County 
Court  at  Annapolis,  that  the  plaintiff  was  not 
estopped  by  his  representation,  and  the  defend- 
ant's having  incurred  expenses  in  feeding  the 
horse,  &c.,  in  consequence  thereof,  from  setting 
up  the  truth  as  to  the  ownersliip  of  the  horse. 

McKay  V.  Bonneft,  3  R.  &  C,  137  ; 
1  C.  L.  T.,  566. 

2.1.    Representation  as  to  ownership  of 

horse— Seizure  by  Sheriff^One Nicholson,  being 
indebted  to  plaintiff,  gave  him  a  horse  to  be  sold 


towards  the  satisfaction  of  the  debt.  Plaintiff 
swapped  the  horse  with  one  Hardwick  for  a  colt, 
informed  Nicholson  of  the  trade,  fixed  the  value 
of  the  colt  at  Si). 40  more  than  the  debt,  and  paid 
this  amount  to  a  creditor  of  Nicholson  in  tiiiul 
settlement.  Hardwick  afterwards  became  dis- 
satisfied with  the  trade,  insisted  upon  plaintiff 
giving  back  the  colt,  and  applied  to  M.,  m 
attorney,  who  wrote  plaintiff.  Plaintiff  callod 
on  the  attorney,  and  according  to  the  evidence  of 
the  attorney,  declared  to  him  that  the  horse  was 
Nicholson's.  Accor<ling  to  plaintiff's  evidence, 
not  contradicted,  he  .stated  to  him  the  arrange- 
ment between  himself  ..nd  Nicholson  in  reference 
to  the  horse,  as  above  set  out.  On  the  same 
day,  and  previous  to  the  ii\terview,  M.,actingas 
attorney  of  other  parties,  ha("  entered  up  a  judg- 
ment against  Nicholson,  and  the  Judge  of  the 
County  Court  found  that  the  attorney  had,  on 
the  faith  of  plaintitt''s  statements  that  the  liorse 
was  not  his,  but  Nicholson's,  caused  the  defend- 
ant, the  Sheriff,  to  levy  on  it  in  plaintiff's  pos- 
session, and  that  plaintitV  had  abstained  from 
looking  after  other  property  of  Nicholson,  who 
was  a  mere  transient  emj)loyce.  Before  any  ex- 
pense had  been  incurred  in  keeping  the  liorse, 
and  before  the  sale,  the  plaintiff  notified  the 
SherifT  that  the  horse  was  his. 

Held,  in  accordance  with  the  previous  ruling 
of  the  Court  (3  R.  Sc  C,  1.37),  that  the  plaintiff 
was  not  estopped  from  setting  up  his  ownership 
of  the  horse. 

Per  Weatlierbe,  J.,  that  the  representation 
was  not  made  with  the  intention  that  the  execu- 
tion creditor  or  the  Sheriff  should  act  on  it  liy 
seizing  the  horse,  and  it  could  not  be  reasoiuiljly 
inferred  that  such  was  the  intention  ;  and  fur- 
ther, that  the  assertion  of  plaintiff  had  not  been 
made  baldly,  but  with  a  qualification  explanatory 
of  tlie  arrangement  above  referred  to,  from 
which  it  seemed  reasonable  that  the  attorney 
had  acted  rather  on  the  belief  that  the  horse 
could  be  shown  to  be  Nicholson's  than  upon  the 
mere  assertion  of  plaintiff  that  it  was  so. 

McKay  v.  Bonnett,  2  R.  &  G.,  96. 

26.   Representations  by  debtor  as  to  debt 

due  party — Garnishee  process  taken  out  by 
reason  thereof— Debtor  estopped  from  deny- 
ing indebtedness  —  Plaintiff  held  a  judgment 
against  one  George  Cutten,  and  was  about  to  sue 
Ryerson  and  Moses,  whom  he  understood  to  be 
Cutten's  partners.  Before  doing  so  he  consulted 
one  of  the  defendants,  by  whom  he  was  informed 
that  there  was  a  balance  of  some  $2,700  due 
from  the  defendants  to  Cutten  for  work  per- 
formed for  defendants  on  the  Western  Counties 
Railway  under  a  contract,  and  defendants  sug- 
gested that  this  amount  might  be  made  available 


511 


ESTOPPEL. 


522 


to  satisfy  the  plaintiff's  claim  if  there  was  a 
garnishee  law.  I'laintiflT's  attorney,  on  the 
strength  of  this  representation,  issued  garnishee 
process,  when  defendants  plerr'ed,  denying  that 
there  wus  any  debt  due. 

Iltld,  that  the  defendants  were  estopped  by 
their  representations  from  denying  their  indebt- 
ness  to  Cutten. 

Previous  to  the  garnishee  process  being  issued, 
Cutten  had  drawn  an  order  recjuesting  defen- 
dants to  piy  all  sums  coming  due  to  him  under 
the  engineer's  monthly  certificate,  to  one  Killam, 
but  there  was  no  evidence  of  any  indebtedness 
of  Cutten  to  Killam. 

//(/(/,  that  this  was  not  such  an  equitable  as- 
signment as  would  prevent  the  garnishee  pro- 
cess from  operating  on  the  fund.  James,  J., 
disxrntinij. 

Pir  Smith,  J. — The  onus  is  on  defendants  to 
show  consideration  for  the  order.  This  has  not 
been  done.  Xon  constat  that  there  are  not  suffi- 
cient funds  in  defendants'  hands  to  satisfy  both 
claims, 

Fitzrandolph  v.  Shanhj  et  al., 

2R.  k(i.,  190; 
1  C.  L.  T.,  705. 

On  appeal  to  the  Stipreme  Court  of  Canada, 
Held,  affirming  tlw  judgment  of  the  Supreme 
Court  of  Nova  Scotia,  Strong  and  (iwynne,  .JJ., 
dimutinij,  that  the  defendants  were  estopped  by 
their  representation  from  denying  their  indebt- 
edness to  Cutten  ;  and  that  there  was  not  evi- 
<lence  of  such  an  assignment  as  would  prevent 
the  attacliment  from  operating  on  the  fund. 
Appeal  dismissed  with  costs. 

Shnnly  v.  Fitzrandolph,  ~'Sfh  April,  1SS2, 
Cas.  Digest,  159. 

27.  Res  adJudicata-Practlce-Replicatlon 

— Plaintiff  brought  action  for  the  non-delivery 
of  certain  goods.  Defendant  pleaded,  among 
other  pleas,  that  plaintiflF  was  estopped  by  a 
judgment  in  a  former  suit  brought  by  the  present 
defendant  against  the  present  plaintiflF  for  the 
price  of  the  goods,  to  which  action  it  was 
pleaded  that  the  goods  had  not  been  delivered, 
which  issue  was  found  against  the  present  plain- 
tiff. Replication,  among  others,  on  equitable 
grounds,  in  effect  that  the  judgment  pletided  had 
been  recovered  without  plaintiflF  having  had  an 
opportunity,  owing  to  unforseen  circumstances, 
of  substantiating  his  plea  by  testimony.  The 
identity  of  the  issues  raised  in  the  two  suits 
was  clearly  established,  and,  a  verdict  having 
been  found  for  plaintiflF, 

atld,  that  the  doctrine  of  estoppel  applied^ 
that  the  equitable  replication,  not  setting  out 


the  circumstances  referred  to,  was  insufficient, 
and  that  the  verdict  must  be  set  aside. 

Marmaud  v.  McCready,  3  R.  &  C,  66. 

28.  Right  of  way— Obstruction  of— Estop- 
pel— PlaintiflF  and  one  of  the  defendants  divided 
a  lot  of  land,  of  which  they  were  tenants  in 
common,  into  two  equal  parts,  and  executed  a 
bond  or  agreement  in  the  penal  sum  of  !J200,  for 
the  purpose  of  securing  to  each  of  the  parties  the 
free  use  of  all  roads  existing  at  the  time  on  either 
of  the  lots  of  land.  PlaintiflF  having  brought  an 
action  for  an  alleged  obstruction  of  one  of  the 
roads  referred  to,  and  having  proved  no  title 
apivrt  from  the  bond. 

Held,  that  the  action  was  wrongly  brought, 
plaintiflF's  remedy  being  by  action  on  the  bond. 

Al»o,  that  plaintiflF  M'as  estopped  by  the  agree- 
ment from  setting  up  prescription,  but  defendant 
was  not  estopped  from  saying  that  there  was  no 
grant. 

Per  Thompson,  J. — The  words  in  the  bond 
did  not  amount  to  an  easement,  but,  at  most,  to 
a  license  or  covenant  not  to  obstruct  the  way. 

Aluo,  plaintiff  might  have  proved  a  title  to  the 
way,  independent  of  the  agreement. 

Whitman  v.  Jones  et  al.,  5  R,  &  Ci.,  443. 

!     29.     Sheriff's  return— When  the  defendant, 

;  as  SheriflF,  levied  on  certain  goods  under  execu- 
!  tions,  and  a  writ  of  attachment  in  bankruptcy  was 
I  afterward  issued  against  the  execution  debtor, 
but  the  SheriflF  after  the  issue  of  the  attachment, 
proceeded  to  sell  under  the  executions  and  paid 
over  the  proceeds  to  the  execution  creditors,  the 
Court  refused  to  set  aside  a  verdict  against  the 
SheriflF,  at  the  suit  of  the  assignee,  for  improperly 
selling  the  goods,  &c.,  and  for  his  failure  to  duly 
execute  the  writ  of  attachment  and  hand  over 
the  property  of  the  insolvent  to  the  assignee. 

Held,  that  the  return  to  the  writ  of  attach- 
ment did  not  estop  the  plaintiflF  in  the  present 
suit  from  saying  that  the  same  had  not  been 
duly  executed. 

Kinney,  Ansiynee,  v.  Dudman,  2  R.  &  C,  19, 

30.  Tenant  estopped  from  disputing  land> 

lord's  title— Plaintiffs'  testator,  C.  C,  took  a 
conveyance  of  land  from  M.  P.  M.,  paying  £\W> 
for  the  land,  at  the  request  of  defendants,  J.  L. 
and  R.  L.,  who  had  previously  occupied  and 
continued  to  occupy  the  land.  PlaintiflF?  having 
brought  an  action  of  ejectment  to  recover  the 
land  from  the  defendants,  produced  two  wit- 
nesses, who  swore  that  defendants  had  paid 
money  to  and  worked  for  C.  C.  in  payment  of 
rent ;  while  one  of  the  defendants,  J.  L. ,  swore 
that  defendants  never  paid  rent,  but  interest, 


623 


EVIDENCE. 


524 


and  that  they  were  to  repay  the  £100  to  C.  C, 
but  that  no  time  for  rc-paynient  was  fixed. 

Held,  Ijy  the  Court,  acting  under  a  rule  nUi 
to  set  aside  a  verdict  taken  by  consent,  with  tlie 
power  of  a  jury  to  draw  inferences  from  the 
facts,  that  tlie  relation  of  landlord  and  tenant 
existed  between  C.  C.  and  the  defendants,  J.  L. 
and  R.  L.,  and  that  consequently  they  were 
estopped  from  disputing  his  title. 

Crow  et  al,  v.  Lowdc.n  et  al. ,  2  R.  &  C. ,  78. 


ESTREATING  RECOGNIZANCE - 
See  RECOGNIZANCE. 


EVICTION- 
Sce  LANDLORD  AND  TENANT. 


EVIDENCE. 

1.  Aceonnt  book— Only  entries  referred 

to  and  read  can  be  commented  on  to  jury- 
On  the  trial  of  issues  of  fact,  an  account  book 
was  produced,  kept  by  plaintiff,  and  the  atten- 
tion of  tlie  Court  was  turned  to  certain  entries. 
Held,  that,  although  in  going  into  an  account- 
ing every  portion  of  the  book  could  be  referred 
to  by  both  parties,  yet  on  the  trial  of  the  issues, 
only  those  portions  of  the  book  could  be  com- 
mented on  to  the  jury  which  had  lieen  referred 
to  and  read. 

Ea/on  V.   Wea/ko.rhe,  R.  E.  D.,  48. 

2.  Action  for  wrongful  dismissal— De- 
fence of  incapacity — Burden  of  proof — Defen-  j 
dants,    in    an    action   for    wrongful    dismissal,  j 
sought  to  justify  the  dismissal  on   the  ground 
that  plaintiff  was  incapable  of  doing  the  work 
he  had  contracted  to  perform. 

Held,  that  the  burden  of  proving  incapacity 
was  in  defendants. 

Jeykcd  v.  Nova  Scotia  (r/a.s.s  Co. , 
20  N.  S.  R.,  (8  R.  it  G.),  388  ;  9  C.  L.  T.,  60. 

3.  Admissions — Held,  that  the  oral  answers 
of  defendant  before  a  commissioner  under  an 
order  of  the  Court  were  properly  received  against 
him  as  admissions,  although  the  interrogations 
and  prior  examinations  were  not  tendered. 

Cochran  v.  Chipman  et  al.,  2  R.  &  C,  254. 

4.  Admissions,  evidence  of— Effect  of— 

Plaintiff  brought  an  action  of  trespass,  claiming 


to  be  entitled  to  the  Iocuh  under  a  deed  from  the 
Inland  and  River  Navigation  Company,  in  1870, 
Defendant  claimed  to  be  entitled  under  a  deed 
from  the  executors  of  one  Stanford,  who  had 
accpiired  a  possessory  title  by  more  than  twenty 
years'  possession.  To  meet  this  plaintiff  gave 
evidence,  which  was  objected  to,  of  admissions 
by  Stanford  that  he  held  the  land  under  a  sub- 
lease from  lessees  of  the  Shubenacadie  Canal  Co., 
who  then  owned  the  land,  but  no  lease  was  pro- 
duced, and  no  such  lease  had  ever  been  recorded. 
The  Court  having  power  under  the  rule  to  draw 
inferences  of  fact  as  a  jury,  concluded  tiiat  the 
plaintiff's  documentary  title  did  not  include  the 
lorvjf,  and  even  if  it  did,  that  the  possessory  title 
of  defendant's  grantor  could  not  be  affected  l)y 
tiie  alleged  admissions  of  Stanford,  the  lease  not 
having  been  produced,  and  no  satisfactory 
reasons  being  given  tor  its  non-production. 

Q.  Whether  the  evidence  of  the  alleged  ad- 
missions was  admissible. 

Fairbanhi  v.  Kuhn,  2  R,  &  G,,  147, 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  affirming  the  judgment  of  the  Court 
below,  that  the  plaintiff  failed  to  show  beyond  a 
reasonable  doubt  that  the  lonis  iiiquov,a,n  witliin 
the  boundary  of  the  canal  property  and  included 
in  tiie  deed  to  plaintiff,  but,  on  the  contrary, 
tlie  Court  below  were  justified  in  coming  to  an 
opposite  conchisifm  ;  and  further,  that  the  Court 
below  were  quite  justified  in  coming  to  the  con- 
clusion that  if  the  property  was  ao  included  and 
the  company  ever  had  a  title  to  the  Iocuk,  there 
was  evidence  of  such  an  exclusive  and  continuous 
possession  that  any  such  right  or  title  was  barred 
by  the  Statute  of  Limitations. 

Crei(jhton  v.  Kuhn,  13th  May,  ISSJ. 
Cas.  Digest,  514. 

5.  Admission  of  husband  as  to  land  of 

wife— Not  binding  on  her  after  his  decease 
— The  admissions  of  a  husband,  as  to  the  boun- 
daries of  land  held  by  him  in  right  of  his  wife, 
are  not  binding  upon  his  wife  after  his  decease. 
DesBarres,  J.,  dimentiw). 

Dill  V.  Wilkinx,  James,  113. 

6.  Agreement- Conflicting  evidence  as  to 

terms— Plaintiff  purchased  a  house  from  the  de- 
fendant, the  consideration  stated  in  the  deed 
being  £2.50.  Defendant  had  mortgaged  the  pro- 
perty to  the  Building  Society,  and  there  was  a 
lialance  due  the  Society  en  the  mortgage  of 
£210,  16,  which  plaintiff  agreed  to  assume.  The 
other  conditions  of  the  bargain  were  in  contro- 
versy, and  defendant  contended  that  plain  tin 
was  to  pay  him  all  the  sums  that  he  had 
paid  to  the  Society  for  dues,    in  addition  to 


525 


EVIDENCE. 


526 


the  boniiR  and  entrance  fee,  and  the  difference 
between  tlic  consideration  and  the  amount  duo 
the  ISiiililiiig  Society  on  the  mortgage,  while 
pluintilf  8tatcd  that  ho  was  only  to  make  good 
to  tlie  defendant  the  payments  he  had  made  in 
ohtaiiiing  tiie  loan.  The  evidence  was  conflict- 
ing, Imt  the  plaintiff's  statement  was  corrolwr- 
atcd  hy  his  wife. 

Helil,  tliat  plaintiff  could  not  be  charged  with 
the  amounts  paid  by  defendant  to  the  Society  as 
dues. 

Daley  v.  Farrefl,  R.  E.  D.,  2.S2. 

I.  Award -ETidence  of  arbitrator  as  to 

mistake — Hi-hl,  that  wlicre  all  the  parties  to  an 
arbitration,  and  the  arbitrators  themselves,  ad- 
mitted that  a  mistake  had  been  niatle  in  requir- 
ing one  of  the  defendants,  as  part  of  the  award, 
to  pay  off  a  certain  mortgage,  which  should  not 
have  been  ro(|uired,  the  evidence  of  the  arbitra- 
tors was  receivable  as  to  such  a  point,  as  well 
as  on  the  point  of  their  having  taken  into  con- 
sideration matters  not  within  their  jurisdiction, 
and  tliat  as  tlie  arbitrators  luid  inadvertently 
made  a  mistake  with  reference  to  the  mortgage, 
the  i'.ward  sliouhl  be  sent  back  to  them  to  be 
corrected. 

Tremain  el  at.  v.  Jfackiiifosh  et  al.,  \ 

R.  E.  D.,447. 

8.  Bankruptcy  in  England  —  Proof  of 

discharge  here— Order  of  discliarge  or  certifi- 
cate sutlicient  evidence  in  Courts  in  Nova  Scotia 
of  liankruptcy  in  England. 

J////.V  v.  Smifh,2  0l\.,^28. 

9.  Bigamy-  Proof  of  marriage  on  Indict- 
ment for— 

See  CRIMI\.4l  LAW. 

10.  Bills  of  Exchange  — Evidence  affect- 
ing- 

See  Bills  OF  EXCHANGE  AND  PROMISSORY 
NOTES,  IV. 

II.  Breach  of  promise  of  marriage -Action 

for -Seduction— Evidence— //eW,  in  action  for 
breach  of  promise  of  marriage,  that  the  state- 
ment of  a  party  to  witness  that  he  had  had  pre- 
vious connection  with  plaintiflf  was  inadmissible. 
Seduction  of  plaintiff  and  consequent  pregnancy 
may  be  given  in  evidence  in  aggravation  of  dam- 
ages. 

Oilmore  v.  Dewar,  1  Thom.,  {1st  Ed.),  73  ; 

(•2nd  Ed.),  101. 

12.   Burden  of  proof-Weight  of  evidence 

—Latter  governs  where  coaflietiag  evidence — 
In  an  action  for  an  assault,  the  defendant  pleaded 


son  axmHlt  dememe,  and,  there  being  evidence  on 
both  8i<les,  the  jury  found  for  defendant. 

Hi/d,  that,  on  appeal  from  a  decision  refusing 
a  rule  nUi,  the  plaintiff  could  not  rely,  on  an 
alleged  misdirection  by  the  Judge  in  not  instruct- 
ing the  jury  that  the  burthen  of  proof  of  the 
prior  assault  was  on  the  defendant,  in  view  of 
the  fact  that  after  minute  instructions  the  jury 
had  believed  the  evidence  of  the  defendant's  wit- 
nesses, to  do  wl'.ich  they  mnst  have  come  to  the 
conclusion,  not  that  the  evidence  was  evenly 
balanced,  but  that  the  evidence  on  the  part  of 
the  defendant  preponderated. 

Per  Thompson,  J.— Where  there  is  testimony 
on  both  sides  of  a  case,  the  decision  is  to  be  gov- 
erned by  ti\e  weight  of  evidence,  and  not  by  the 
legal  docti'ine  about  biuMlen  of  proof, 

Andrews  v.  Landers,  4  R.  &  (J.,  236. 

13.  Burden  of  Proof -New  trial-P.  Mc- 

Donald,  deceased,  made  a  mortgage  to  plaintiff, 
which  plaintiff  brought  suit  tc  foreclose.  Defend" 
ants  set  out  an  agreement  by  which  plaintiflf 
agreed  to  release  the  mortgage  oji  receiving  three 
promissory  notes  made  by  one  McKinnon,  to 
whom  part  of  the  land  had  been  sold  by  tlie 
mortgagor.  Plaintiff  replied  that  the  notes  were 
only  taken  as  collateral  security,  to  lie  credited 
to  the  mortgagor  when  paid,  and  that  nothing 
had  been  paid  on  account  of  them.  On  the  trial 
of  the  issue  plaintiff  proved  the  mortgage,  and 
defendants  produced  no  evidence  whatever. 

The  jury  found  for  the  defendants. 

Bekl,  that  the  burden  of  proof  of  the  issue 
raised  was  on  the  defendants,  and  that  as  tlioy 
had  proved  notliing,  the  finding  must  be  set 
aside. 

Murray  v.  McDonald  et  (d.,  R.  E.  D.,  142. 

14.  Circumstantial  evidence  in  criminal 
cases-&e  CRIMINAL  LAW. 

15.  Commission  —  Rule  for  commission 

amended  by  adding  permission  to  examine,  in 

addition  to  the  witness  specified  in  oviginitl  rule, 

any  others. 

Salter  v.  Hwjhe.i,  James,  248. 

16.  Commission— The  Court  will  grant  a 

commission  to  examine  a  witness  who  was  out  of 
the  Province  when  the  suit  commenced,  but  re- 
turned after  action  commenced,  and  left  again 
secretly  without  the  knowledge  of  the  party 
requiring  his  testimony. 

Bank  of  B.  N,  America  v.  Keith,  James,  56. 

17.  Commission— Assessment  of  damages 

— Rule  for  commission  grauteil  when  no  appear- 


627 


EVIDENCE. 


528 


ance,  to  obtain  evidence  in  order  to  assess  dam- 
ages. 

Wilnon  V.  Lyle,  James,  183. 

18.  Commission— Delay  in  movins  —Ap- 
plication for  commission  by  defendant  must  be 
made  without  unnecessary  delay. 

Jones  V.  Williams,  James,  303. 

19.  Competency  of  witness— Witness  liud 

no  share  in  tiie  vessel  at  time  charter  party  was 
made  and  the  action  was  brought  by  the  parties 
wh  o  were  owners  at  that  date,  subsequently  to 
that  date  witness  became  part  owner,  but  sold 
out  to  plaintiff  a  few  days  before  his  examina- 
tion. 
Held,  that  he  was  a  competent  witness. 

MiUhafl  et  al.  v.  Barsn,  2  Thorn.,  46. 

20.  Conditional  acceptance  of  Bill  of  Ex* 

change — Fulfilment  of  condition — Burden  of 
proof—  I 

See  BILLS  OF  EXCHANGE  AND  PROHISSORT 
NOTES,  I.,  1. 

21.  Conflicting  evidence-Entry  by  party 

— Plaintiff  was  book-keeper  for  defendant  and 
claimed  a  balance  of  salary  due  him  alleging  that 
the  hiring  was  for  §1,600  a  year.  Defendant 
contended  the  plaintifl''s  salary  was  only  §1,000, 
which  had  been  paid  him  in  full.  Their  respec- 
tive statements  as  to  the  terms  agreed  upon 
between  them  were  very  conflicting,  but  in  cor- 
roboration of  defendant's  was  the  fact  that  at  the 
end  of  the  year  for  which  the  salary  was  to  be 
paid  the  plaintiff  entered  it  in  the  books  as  only 
$1,000.  The  jury  found  for  plaintiff. 
Held,  that  there  should  be  a  new  trial. 

M'-Xutt  V.  McDonald,  3  N.  S.  D.,  175. 

22.  Constructive  delivery  of  goods  to  car- 

riers— Evidence  of— Where  the  plaintiff  gave 
evidence,  uncontradicted,  that  defendant,  tlie 
captain  of  a  vessel,  told  her  to  send  her  goods  to 
a  certtiin  wharf,  and  th;'.t  she  sent  them  there. 

Held,  that  there  was  evidence  of  a  constructive 
delivery  to  the  defendant,  which  imposed  on  him 
the  duty  of  looking  after  plaintiff's  coods  and 
taking  them  on  board. 

Morrison  et  al.  v.  Thompson,  2  R.  &  C,  411. 

23.    Contract— Rescission— Evidence  to 

support  verdict — Particulars  of  demand  — 
Instructions  to  Jury— Plaintiff  and  defendant 
entered  into  a  contract  that  plaintiff  should  take 
defendant's  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  specifled  rates  in  the  months  of 
July  and  December  of  each  year.  Defendant 
failed  to  pay  plaintiff  a  sum  of  8890  due  him  on 
one  of  the  December  settlements,  and  plaintiff 
having  demanded  the  money  of  defendant's  man- 
ager, was  informed  that  there  was  none  for  him, 
Plaintiff  thereupon  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  whi'cli  was  paid,  and  for 
the  balance  of  whicii  the  action  was  brouglit. 

In  addition  to  the  above  there  was  evidence 
of  a  statement  by  defendant  that  he  wished  to 
get  rid  of  plaintiff,  who  was  getting  "  phiyed 
out,"  and  of  his  instructing  his  manager  to  keep 
81000  back  from  plaintiff. 

Held,  Weatherbe,  J.,  dtihifanfn,  that  tliere 
was  evidence  to  support  a  finding  by  the  jury  of 
a  rescission  of  the  contract,  and  a  promise  to  pay 
plaintiff  the  balance  earned. 

Held,  also,  objection  liaving  been  taken  to  the 
sufficiency  of  plaintiff's  particulars,  that  the  ver- 
dict 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,  also,  that  the  Judge  was  right  in  in- 
structing the  jury  that  evidence  was  of  no 
importance  of  a  conversation  after  tlie  rescission 
in  whicli  defendant  said  lie  was  urging  pliiintiff 
to  go  back  to  work,  and  plaintiff  made  no  reply. 
Tracey  v.  Young,  5R,  &  G.,  IWl, 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  that  for  the  reasons  given  in  the  Court 
below,  the  judgment  should  be  affirmed. 
Appeal  dismissed  witli  costs. 

Young  v.  Tracey,  17th  February  1SS5, 

Cas.  Digest,  82- 

24.  Conversations  witli  party,  after  he  bas 

parted  with  legal  interest  in  property  in  dis- 
pute, inadmissible — 

See  DEED,  34. 

25.  Deat'n  of  persons  by  same  calamltj- 

No  presuription  of  survivorship— Where  two 
or  Tiore  persons,  and  especially  where  relatives, 
perifch  in  the  same  calamity,  the  law  recognizes 
no  presumption  of  survivorship ;  but  in  tlie  total 
absence  of  all  evidence  respecting  the  particular 
circumstances  of  the  calamity,  the  matter  will 
be  treated  as  if  all  of  them  had  perished  at  the 
same  moment,  and  consequently  none  of  the 
parties  will  be  held  to  have  transmitted  any 
rights  to  the  other. 
Hartahome  et  al.  v.  Wilkina  etal.,2  Old.,  276. 


529 


EVIDENCE. 


530 


26t   De  bene  esse— A  defendant  about  to 

leave  the  Province  may  be  examined  de  bene 

esse, 

Bamahy  v.  Fait,  2  Thom.,  231. 

27.  Decree— Putting  In  evidence -Wbere 

a  party  intends  to  avail  himself  of  a  decree,  and 
not  merely  to  prove  an  extrinsic  collateral  fact  (as 
tliat  a  decree  was  made  by  the  Court),  he  ought 
regularly  to  give  in  evidence  the  proceedings 
upon  which  the  decree  was  founded. 

Eaton  V.  Wriijht  et  at.,  2  R.  &  C,  p.  514. 

28.  Deed -Delay  in  recording— Evidence 

for  jury  of  want  of  bona  fides — The  fact  of  the 
lessor  of  plaintiff  having  failed  to  record  his 
deed  for  seventeen  years,  together  with  acts  and 
acknowledgments  by  him  inconsistent  with  his 
title,  subsequent  to  the  making  of  the  deed  to 
him,  are  evidence  for  the  jury  against  its  valid- 
ity as  a  bonajtde  conveyance. 

A  defendant  in  possession,  under  an  agree- 
ment to  purchase  the  land  from  a  third  party 
may  defend  his  possession  by  showing  fraud  in 
the  deed  under  which  the  lessor  of  plaintiff 
claims. 

McKinnon  v.  McDonald,  James,  7. 

29.  Deed  of  mortgage— Evidence  of  deliv- 
ery— 

See  DEED,  18  &  24. 

30.  Deed  —  Recitals  in  —  EBTect  of  —  Tbe 

Court  will  not  favor  objections  taiien  against  a 
sale  of  real  estate  by  an  administrator  for  pay- 
ment of  debts  under  an  order  of  the  Governor 
and  Council  after  the  purchaser  has  been  thirteen 
years  in  possession,  and  will  in  such  case  receive 
the  recitals  in  the  deed  as  presumptive  evidence 
that  the  sale  was  duly  advertised.  But  where 
the  administrator's  deed  conveyed  more  land 
than  was  described  in  the  advertisement,  the 
variance  held  fatal  to  defendant's  title  to  the 
surplus. 

Gillis  V.  Campbell,  James,  48. 

31.  Deed— Registration  of- Evidence  of— 

In  an  action  for  breach  of  covenant  for  title 
contained  in  a  deed  from  defendant  to  plaintiff, 
the  plaintiff  put  in  evidence  a  mortgage  on 
which  was  indorsed  what  purported  to  be  a 
certificate  of  registration.  The  execution  of  the 
mortgage  was  proved,  \)Ut  the  certificate  was 
not  proved  to  have  been  signed  by  the  proper 
officer,  nor  was  it  tendered  as  evidence  indepen- 
dently of  the  mortgage. 

Held,  that  aa  the  plaintiff  had  had  no  notice 
of  the  mortgage,  his  title  was  good  unless  the 
mortgage  was  registered  prior  to  the  registra- 


tion of  the  deed,  and  that  in  order  to  prove  such 
registration  it  was  necessary  to  show  that  the 
certificate  had  been  signed  by  the  proper  officer, 
the  mere  production  or  a  paper  purporting  to  be 
a  certificate  not  being  sufficient  under  4th  Re- 
vised Statutes,  chap.  79,  sec.  18. 

Oo^Ud  V.  McGrefjor,  1  R.  &  G.  339. 

32.  Deed— Registry  of— Certificate- Proof 

of— To  an  action  of  trespass  defendant  pleaded, 
justifying  under  an  alleged  grant  of  a  right  of 
way.  Plaintiff  replied  excess,  and  proved  that 
a  gate  on  the  property  had  been  removed  and 
torn  down  in  the  exercise  of  the  alleged  right  of 
way.  Plaintiff  and  defendant  both  claimed  their 
adjoining  lots  by  conveyance  from  the  same 
grantor,  and  defendant  relied  on  the  fact  that 
his  tleed,  which  comprised  the  grant  of  the  right 
of  way  over  plaintiff's  land,  had  been  registered 
long  previously  to  the  registry  of  plaintiff's  deed, 
but  no  evidence  was  given  as  to  the  registry  or 
the  date  thereof. 

Held,  per  James,  J.,  that  under  the  decision 
in  Gould  V.  McGreijor,  1  R.  &  G.,  .S39,  the  cer- 
tificate should  have  been  tendered,  and  proved 
if  objected  to,  and  further  that  plaintiff  was 
entitled,  under  the  evidence,  to  hold  his  verdict 
on  the  ground  of  excess. 

Per  Weatherbe,  J. ,  that  the  locus  of  the  tres- 
pass had  not  been  identified  by  defendant  with 
the  way  as  described  in  his  deed. 

McDonald,  J.,  dimentimj, 

McCormack  v.  Denniaon,  3  R.  &  G.,  71. 

33.  Deed  -  Registry  of  -  Certified  copy — 

Affidavit— Where  a  certificate  of  the  attestation 

of  a  deed  contained  no  date, 

I      Held,  that  the  deed  was  properly  recorded  in 

j  the  registry  of  deeds  office,  the  words  of  the  12th 

section  of  ch.  79,  4th  R.  S. ,  requiring  the  date 

of  attestation,  being  merely  directory. 

Where  a  certified  copy  of  a  deed  was  offered 

in  evidence  under  sec.  33  of  ch.  96,  4th  R.  S., 

without  an  affidavit  showing  that  the  original  was 

not  in  the  possession,  &c.,  of  the  party,  but  the 

defendant,  who  offered  the  copy,  was  examined 

as  a  witness  at  the  trial,  and  proved  that  the 

original  was  not  in  his  possession,  &c. 

Held,   that  the  certified  copy  was  properly 

received 

McKemie  v.  Lamont,  2  R.  &  C,  517. 

34.  Deed— Secondai7  evidence— Founda* 

\  tion  for— Where  a  deed  has  been  traced  into  the 
j  actual  possession  of  a  party,  it  is  necessary  to 
j  call  him  to  account  for  it  before  secondary  evi- 
j  dence  can  be  let  in  ;  but  where  doubt  exists  as 
j  to  whether  it  was  actually  left  with  a  party  who 
I  has  no  interest  in  it, 


631 


EVIDENCE. 


632 


Held,  BuflBcient  to  prove  a  search  amongst  the 
papers  of  the  person  who  it  was  presumed  had 
last  liad  possession  of  it. 

Barto  V,  Morris,  Cochran,  90. 

35.  Defendant  In  possession  may  prove 

fraud  in  plaintiff's  deed  from  a  third  party. 

McKinnon  v.  McDonald,  James,  7. 

36.  Demand  or  possession  —  Proof  of — 

Proof  of  part  of  a  conversation,  tlie  witness 
having  left  before  it  was  terminated,  is  not 
sufficient  evidence  of  a  demand  of  possession. 

Etter  V,  Copj),  James,  344. 

37.  Deposition  taken  de  bene  esse  remov- 
ed from  files — Foundation  for  admission  of, 
not  laid  —Where  plaintiffs'  attorney  had  taken 
from  the  files  of  tlie  Court  a  deposition  taken 
de  he.ne  e.-me  on  the  part  of  the  defendant,  but  the 
defendant  did  not  succeed  at  the  trial  in  proving 
tlie  illness  or  absence  from  the  Province  of  the 
witness  with  sufficient  clearness  to  entitle  him 
to  havj  (lie  deposition  read,  if  procured. 

Held,  that  the  fact  of  the  deposition  having 

been   removed  from  the  files  of  the  Court,  did 

not  constitute  sufficient  ground  for  disturbing  a 

verdict  in  favor  of  plaintiffs. 

McDonald  et  al.  v.  Merchants'  Marine  Ins.  Co. , 

2R.  &C.,  133. 

38.  Deposition  taken  for,  but  not  U5ed  at 

first  trial,  may  be  used  at  second  trial — Where 
the  deposition  of  a  witness  had  been  taken  but 
not  used  at  the  first  trial,  in  consequence  of  wit- 
ness being  ^^ble  to  attend,  but  a  new  trial  having 
been  awarded,  and  the  witness  dying  previous  to 
such  new  trial, 

Held,  that  the  deposition  was  receivable  in 
evidence  at  such  second  trial. 

Bron-nv.  Boole,  1  Thom.,  (1st  Ed.),  108  ; 
(2nd  Ed.),  137. 

39.  Discovery  —  Bill  for  -  The  plaintiffs 

sought  in  this  suit  discovery  of  facts  necessary 
to  enable  them  to  plead  to  an  action  at  law 
brought  againat  them  by  the  defendant,  and  the 
■writ  contained  a  prayer  for  relief  in  respect  of 
the  matters  of  which  discovery  was  sought.  On 
taking  out  the  writ,  plaintiffs  obtained  an  order 
restraining  defendant  from  further  action  in  the 
common  law  suit,  and  defendant,  having  filed  his 
answer,  sought  to  have  the  restraini-ig  order  dis- 
charged. 

Held,  that  the  plaintiff,  having  sought  relief 
in  this  Court,  had  "elected  this  tribunal,  and 
could  not  at  the  same  time  make  the  matters 
referred  to  in  their  writ  the  subject  of  pleas  to 
the  action  at  law  ;  that  the  evidence  sought  for 


'  was,  therefore,  not  pertinent  to  the  defence  in 

the  action  at  law,  and  that  the  restraining  order 

I  having  been  granted  solely  on  the  ground  that 

]  discovery  was  necessary,   must  bo   discharged, 

j  irrespective  of  the  sufficiency  of  the  defendant's 

answer  ;  that  the  present  suit,  although  it  could 

not  be  treated  as  a  suit  for  discovery,  still  con- 

tinned  as  a  suit  for   relief,  but  that  plaintiffs 

1  might  discontinue  the  su't  and  plead  the  facts 

■  set  out  in  the  writ  as  a  defence  to  the  action  at 

law. 

The  Cape  Breton  Co.  (Limited)  v.  Gisborne, 

R.  E.  D.,240. 

40.  Discovery  of  fresb— This  was  an  appli- 
cation made  on  behalf  of  plaintiff  for  a  new  trial, 
upon  the  ground  of  discovery  of  material  evidence 
after  trial.  The  suit  was  tried  before  Mr.  Jus- 
tice Wilkins,  in  April,  1873,  and  a  verdict  foii.'d 
for  defendants. 

The  suit  was  bi-ouglit  to  recover  the  amount 
of  an  account  for  goods  sold  and  delivered,  and 
the  expense  of  a  protest  on  a  bill  of  exchange 
which  defendants  refused  to  accept. 

The  defendants  paid  .S34.15  into  Court  under 
a  plea  adapted  to  the  case,  and  as  to  the  balance 
of  plaintiff's  claims,  pleaded  never  indebted. 
There  was  a  special  plea  and  pleas  of  set-oil',  but 
they  did  not  affect  the  merits  of  the  present  in- 
(juiry  which  arose  out  of  the  fact,  as  alleged  by 
plaintiff,  that  defendants  purchased  goods  of  him, 
he  residing  in  Montreal,  for  which  he  was  to  reiuit 
I  stock  to  be  sold  on  commission,  and  not  having 
I  fulfilled  their  engagements  in  this  behalf,  on  the 
;  24th  October,  1870,  he  wrote  a  letter  to  defend- 
ants setting  out  the  transaction  and  its  terms,  and 
requiring  immediate  payment  of  their  account. 

The  evidence  on  the  part  of  plaintiff  and 
defendants  as  to  the  terms  of  the  contract  was 
highly  conflicting,  and  in  order  to  secure  a  pre- 
ponderance, plaintiff  sought  to  prove  out  of  the 
mouth  of  William  C.  Brennan,  one  of  the  defend, 
ants,  the  fact  of  having  received  a  letter  from 
plaintiff.  The  Judge's  minutes  read  as  follows  : 
"Witness  being  under  cross-examination,  looks 
at  a  paper  shown  by  King,  plaintiff's  counsel, 
'  I  don't  remember  ever  receiving  a  letter  like 
this  from  plaintiff.'"  No  dates  or  address  or 
description  of  the  letter,  or  its  contents,  by 
whom  written,  or  to  wliom  addressed  was  given, 
nor  did  the  Judge's  minutes  show  that  any  notice 
to  produce  the  original  letters,  if  in  defendant's 
possession,  had  been  given.  The  other  defendant 
"answered  in  precisely  or  nearly  the  same  lan- 
guaje.  Looked  at  the  letter.  I  don't  remember 
receiving  a  letter  of  which  this  is  said  to  be 
a  copy." 

Plaintiff's  attorney,  in  his  affidavit  upon 
which  his  rule  ni4  for  a  new  trial  was  grounded, 


633 


EVIDENCE. 


534 


supplied  a  number  of  facts  no*^  to  be  found  in  the 
learned  Judge's  minutes.  For  instance  he  swore 
tliat  notice  to  produce  the  original  letter  had 
Ijeen  given  defendants  It  is  doubtful  whether 
the  Court  can  look  outside  of  the  Judge's  minutes 
or  receive  proof  by  athilavit  of  any  fact  which 
if  proven  at  the  trial  should  appear  there. 
Defendant's  answer,  as  given  in  an  uliidavit, 
ia  entirely  different  to  what  the  learned  Judge's 
niiiiutes  furnish.  And  plaintiff's  attorney  pro- 
ceeded to  show  that  since  the  trial  he  had 
obtained  from  the  assignee  in  insolvency  of 
Aimer  A.  Hremuer,  one  of  the  defendants,  the 
original  letter  of  which  he  luul  exhibited  to  ; 
iiim  a  copy,  with  some  slight  exception.  Upon 
tills  state  of  flic* 3,  with  the  additional  one,  veri-  ' 
tied  that  tlie  deponent  did  not  know  until  after 
the  trial  that  the  assignee  liad  th's  letter,  plain- 
tiff sought  for  a  new  trial.  The  contents  of  the 
letter  were  inconsistent  with  the  version  of  the 
contract  as  testified  to  l)y  defendants,  and  it  was 
within  a  month  or  so  after  the  goods  were  sup- 
plied, and  was  not,  so  far  as  known,  replied  to 
liy  (U'fendants,  anil  that  was  the  most  that  could 
U'said  in  favor  of  i.laintiff's  position.  But  none 
of  tlie  court  thought  that  this  was  a  discoverj'of  , 
material  and  important  evidence  after  a  trial 
had,  siicli  as  to  justify  a  new  trial.  Tlie  want 
of  notice  to  pro<luce  the  original  letter  on  the 
trial  is  a  fact  of  great  inipoi'tance,  and  in  the 
al)sence  of  such  a  notice  shown  oji  the  Judge's 
inimites,  it  could  not  be  supplied  dehors  by  affi- 
davit. 

The  rule  itisi  foi-  a  new  trial  therefore  dis- 
charged, witli  costs. 

Siijmour  V.  liremiier  it  a/.,  unreported. 

41.  Documents,  ancient  —  Search  for— 

W.  re  an  ancient  allotment  book  of  a  town- 
ship referred  to  a  writ  of  partition  and  plans 
and  what  purported  on  their  faces  to  be  copies 
of  such  plans,  came  out  of  the  proper  custody 
and  had  for  a  long  period  of  time  been  recog- 
nized by  the  proprietors  of  the  township  as 
innnimenta  of  their  title,  they  will  oidy  be 
le'i'ived  in  evidence  after  proof  that  search  has 
heen  made  for  the  originals  and  that  they  can- 
not he  found. 

SoiKjKter  V.  Payzant,  2  Thom.,  408. 

42.  Document-Secondarr  evidence  of- 

Under  the  County  Court  Act  of  1877,  cap.  6, 
sec.  'J,'),  there  is  no  appeal  from  the  decision  of 
the  County  Court  Judge  on  questions  of  fact. 

Plaintiff  sued  defendants  for  work  done  for 
the  British  Gold  Mining  Company,  and  together 
M'itli  other  evidence  produced  a  witness  who 
said  he  had  been  one  of  a  deputation  that  had 
Waited  upon  the  manage'  of  the  company  to 


ascertain  of  whom  it  was  composed,  and  that 
said  manager  had  produced  a  document  and 
read  it,  stating  that  T.  W.  and  J.  W.,  the 
parties  sued  (with  others  whom  he  named), 
were  the  parties  concerned  in  the  company  ; 
that  the  document  was  tlien  handed  to  witness 
who  read  part  of  it  to  the  company  present  who 
were  quite  satisfied  that  there  was  such  a  com- 
pany. This  statement  was  held  to  lie  admissi- 
ble as  secondary  evidence  of  the  document. 

Lockhnrt  v.  Watwn  et  a/.,  ,3  R.  &  C,  54.3. 

43.  Document— Secondary  evidence  of— 

Where  the  jdaintiff,  the  wi(h)w  of  fJ.  Hazell, 
suing  fm  a  bond  for  maintenance  made  to  her  late 
husband  and  herself,  testified  that  she  had  the 
bond  in  possession  after  her  husband's  death, 
that  .she  gave  it  to  her  .son  to  be  recorded  and 
had  not  seen  it  since,  a  id  the  son  testified  that 
he  had  sent  it  by  the  magistrate  to  get  it  record- 
ed and  had  not  since  seen  it,  and  the  document 
was  traced  to  the  office  of  the  Registrar  of  Deeds, 
who  testified  that  some  one  supposed  to  be  enti- 
tled to  it  had  got  it  out  of  his  possession,  and 
that  he  had  searched  in  his  office  in  vain  for  it; 
a  paper  sworn  l)y  the  Registrar  to  be  an  accurate 
copy  of  the  Registry  was  achnitted  as  secondary 
evidence. 
IleJd,  that  the  evidence  was  properly  received. 
Haz'll  V.  Di/a.->,  2  R.  &  C,  36. 

44.  Document  —  Secondary  evidence  of— 

Foundation— //«/(/,  y*.r  Wilkins,  J.,  that  where 
one  of  the  originals  of  an  agreement  between 
defendants  L.  &  F.  had  been  in  the  possession  of 
L.  and  no  evidence  was  giving  of  a  search  by  or 
with  L.'s  executors,  or  among  the  papers  of  de- 
ceased for  it,  secondary  evidence  of  the  agree- 
ment had  been  improperly  received. 
Johiiwii  et  at.  V.  Lifhiioiref  al.,  2  R.  &  C,  .5()7. 

4,5.    Document  —  Secondary  evld(  nee  of— 

Proofofsearch— Misdirection— Plaint  itis  claim- 
ing a  certain  lot  of  land  under  grant  from  the 
Crown,  passed  during  the  past  century,  brought 
an  action  of  trespass  against  defendant  for  cut- 
ting timber  on  the  land. 

At  the  trial  plaintiffs  produced  their  original 
grant,  and  tendered  as  evidence  to  identify  the 
locHS  with  their  lot,  ancient  copies  of  the  allot- 
ment book  and  plan  of  the  township  in  which 
the  lands  lay  which  had  often  been  received  in 
evidence  in  other  suits,  the  originals  having  been 
lost.  These  copies  were  received  iiy  the  Judge 
who  tried  the  cause  (McCuUy  J.),  without  proof 
of  a  search  for  the  originals. 

Held,  that  they  had  been  improperly  received 
in  evidence. 


535 


EVIDENCE, 


536 


Tho  Judge  directed  the  jur  that  plaintiffs 
had  proved  a  documentary  title. 

Held,   that  under   the  above  circumstances, 
there  had  been  a  misdirection  on  that  point. 
Church  Wankiut  of  Falmouth  v.  Vawjhan, 

2R.  &C.,438. 

46.  Easement  —  Proor  of  —  The  plaintiff 

claimed  a  right  of  way  over  land  of  the  defend- 
ant fr'oin  a  meadow  lying  in  the  rear  of  defend- 
ant's land  to  tlie  liighway.  He  testified  on  the 
trial  tliat  T.  Gourley,  the  previous  owner  of  liis 
lot  of  land,  enjoyed  an  easement  for  thirty 
years,  adversely  to  the  party  from  whom  the 
defendant  derived  title,  but  he  produced  no  deed, 
and  did  not  show  that  the  easement,  if  such 
there  was,  had  been  conveyed  to  liiin.  He  also 
claimed  under  a  deed  of  the  meadow  from  the 
executors  of  T.  Gourley  in  1861  ;  but  as  there 
was  no  evidence,  except  that  of  the  plaintiff  him- 
self, of  a  continuous  user  by  (Jourley  for  twenty 
years,  and  tlie  evidence  taken  altogethei'  nega- 
tived such  a  user,  it  was  lield  that  neither  T. 
Gourley  nor  his  executors  could  convey  any 
right  of  way  to  tlie  plaintiff,  and  that  the  verdict 
for  the  defendant  must  lie  sustained. 

Tuiiptr  V.  Camjilnl/,  "2  R.  &  C,  68. 

47.  Ejectment  br  order  of  Chancery  to 

obtain  evidence  —  Parts    of  conversation  — 
Ejectment  tried  by  oi'der  of  Chancery  to  obtain 
evidence  to  be  adjudicated   on   in  that  Court. 
Verdict  taken  by  consent,  subject  to  the  opinion 
of  the  Supreme  Court.     The  Court  declined  to  I 
consider  the  question  otherwise  than  in  accord.  | 
ance  with  the  common  law  practice,  and  there-  i 
fore   refused   to   decide    upon   matters   of   fact  ] 
which  should  have  been  but  were  not  found  by 
the  jury,  and  set  aside  the  verdict,  but  without 
costs. 

Proof  of  part  of  a  conversation,  the  witness 
having  left  before  it  was  terminated,  is  not  suf- 
ficient evidence  of  a  demand  of  possession. 

Etter  V.  Copp,  James,  344. 

4S.    Evidence  left  to  Jury  as  question  of 

law — An  action  of  trover  was  brouglit  for  three 
sheep,  two  of  which  plaintiff  alleged  that  she  had 
brought  with  her  to  the  residence  of  one  McKay, 
with  whom  she  was  living  when  they  were  taken, 
and  one  of  which  she  had  purchased  when  there. 
The  sheep  were  seized  as  the  property  of  McKay. 
McKay  and  his  sister,  with  another  witness, 
gave  evidence  substantially  the  same  as  that  of 
the  plaintiff  as  to  the  property  in  the  sheep, 
and  the  mode  in  which  they  had  been  acquired. 
There  was  evidence  that  the  sheep  bore  McKay's 
mark,  and  a  witness  for  defendants  testified 
that  the  plaintiff  had  admitted  that  McKay  had 


appropriated  to  his  own  use  her  sheep,  and  said 
he  was  to  have  given  her  others,  but  hud  not 
done  so,  and  that  he  understood  plaintiff's  sheep 
had  been  killed.  The  Judge,  after  referring  to 
the  conflicting  evidence,  told  the  jury  that  if  the 
defendants'  evidence  was  true,  it  was  matter  of 
law  that  the  sheep  were  not  the  plaintiff's,  and 
he  recommended  them  to  bring  in  a  verdict  for 
defendants  upon  the  ground,  if  they  took  the 
same  view  of  the  evidence,  adding  that  it  would 
be  better  for  the  parties  that  the  jury  ■should 
follow  the  law,  as  a  departure  from  the  ruins  of 
the  Court  would  only  tend  to  prolong  litigation. 
Held,  that  the  verdict  must  be  set  aside  on 
the  ground  of  misdirection. 

McLellan  v.  Ingraham  tt  al.,  3  R.  &  G,,  164. 

49.  Evidence  necessary  to  recover  con- 
sideration on  failure  of  agreement  for  sale  of 
land — In  order  to  recover  back  money  i)iiiil  l)y 
plaintiff,  under  an  agreement  for  sale  of  lamls  to 
him,  on  tlie  ground  of  failure  of  consideration, 
plaintiff  must  give  evidence  of  the  terms  of  the 

agreement. 

McDonald  v.  McDonald,  James,  41. 

50.  Evidence  of  partial  failure  of  consid* 

eration  for  note  —  The  defendant  A.  at  an 
auction  of  hay,  bid  off  the  unsold  portion  esti- 
mated at  twenty-five  tons  at  Sl'2  per  ton,  and 
gave  to  plaintiff  his  note  for  $.300  on  tiie  under- 
standing that  if  the  (juantity  sold  fell  sliort  of 
the  estimated  amount,  a  proportionate  deduc- 
tion would  be  made  from  the  face  of  the  note. 
The  quantity  having  been  largely  over-estimated. 
Held,  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. 

FUher  v.  Archibald  tt  al,  2  N.  S.  D.,  298. 

51.  Evidence  of  execution  of  deed -The 

subscribing  witness  to  a  deed  need  not  be  pro- 
duced if  the  handwriting  of  the  party  making 
the  instrument  can  be  otherwise  proved. 

Woods  V.  FroAer,  2  Thom.,  184. 

52.  Evidence  of  seduction  in  action  for 

breach  of  promise  of  marriage — 

See  HUSBAND  AND  WIFE. 

53.  Evidence  of  witness  at  previous  trial- 
Effect  of  other  side  reading  it  at  second  trial— 
On  a  second  trial  an  objection  made  by  defend- 
ant's counsel  to  using  evidence  taken  on  a  for- 
mer trial  was  over-ruled,  and  plaintiff's  counsel 
thereupon  read  the  evidence  of  several  witnesses 


537 


EVIDENCE. 


538 


on  the  former  trial,  including  several  witnessea 
calltul  for  tlio  ilefoiice. 

The  presiding  Judge    ruled    that  plaintifif's 


On  appeal  to  tiM:  Sujireme  Court  of  Canada, 
field,   artinniji,?  the  judgment   of  the  Court 
helow,   that   undor  said   section,   in  an   action 


counstil  made  the  evidence  of  defendant's  wit-  against  administrators  made  parties  to  an  action 
nesscH  his  own  by  reading  it,  and  gave  judgment  i  after  issue  joined,  hut  before  trial,  the  plaintiflf 
for  defendant.  I  cannot  give  any   evidence  in  hia  own   favor  of 

A  new  trial  was  ordered.  I  dealings  with  a  deceased  defendant. 

Traver'*  v,  McMurray,  7  R.  &  <J.,  509 ; ;      Henry.  J.,  dUHeutiiuj. 

8  C.  L.  T.,  G3.  i  Chtdey  v.  Murdoch,  2  H.  C.  R.,  48. 


ui.  Evidence  put  in  below,  but  not  re- 1 

ported  up — A  cause  will  not  be  sent  back  merely  j 
because  evidence   was  put   in   which   was   not 
takvn  down   by   the  Judge  below.     The  court 
will  only  look  at  the  evidence  as  it  comes  before 

it. 

Slocomb  V.  Morse,  20  N.  .S.  R.,  (8  R.  &  G.),  60. 

i 

I 

35.   Executors  and  administrators  —  4th 

R.  S.,   c.   96,   8.  41— D.    made  a,  mortgage  to 
defeiiilanls'  testator,  to  secure  the  payment  of 
three  jjromissory  notes.     The  notes  were  paid, 
andlmnded  over  to  D.,  upwards  of  twenty  years  ] 
before  this  action  was  brought  by  D.  to  compel 
defendants  to  execute  a  release  of  the  mortgage. 
During'  the  subsecjuent  period  no  payments  were  i 
made  liy  1).  or  demanded  of  him,  and  the  estate 
of  testator  was  settled  without  any  reference  to  \ 
tlie  mortgage  as  an  outstanding  debt  due  the 
estate.     After   bringing  tiie  action,  D.  became 
insolvent,  a!id   made  an  assignment  under  the  ' 
Insolvent  Act,    and    his  assignee  intervening, ! 
under  an  order  of  the  Court,  became  pL'iutifl'in 
the  suit. 

fftld,  that  defendants  must  be  decreed  to  ex- 
ecute a  release  of  the  mortgage,  though  without 
costs,  they  not  having  opposed  the  proceedings 
of  plaintiff. 

IleJd,  alio,  that  D.,  not  being  a  party  to  the 
suit  when  evidence  was  taken,  was  not  prevented 
by  section  41  of  chapter  96,  4th  R.  S.  from  giving 
evidence  of  tran^r-otions  with  defendant's  tes- 
tator, deceased. 

Bdl,  Aisirjnee,  v.  Brown  et  al.,  R.  E.  D.,  20. 

56.  Execution  and  administrators— 4th  R. 

S.,  c.  96,  3. 41— Same  as  5th  R.  S. ,  c.  107,  s.  16— 
The  proviso  in  soction  41  of  c.  96,  Rev.  Stats., 
(4th  series)  "Of  witnesses  and  evidence,"  applies 
to  evidence  tendered  in  causes  where  the  execu- 
tors or  administrators  have  became  parties  by 
suggestion,  after  the  death  of  the  original  party ; 
the  word  "brought"  in  said  proviso  being  con. 
strued  with  the  word  "evidence"  immediately 
preceding  and  not  with  the  words  "action  or 
after  proceeding. " 
Wilkins,  J.,  dissenting. 

Ghesky  v.  Murdoch  et  al.,  2  R.  &  C,  321, 


57.    Executors  and  admlnistrators-4th  R. 

S.,  c.  96,  a.  41— Same  as  5th  R.  S.,  c.  107,  a.  16— 
The  agent  of  a  life  insurance  company  is  not 
competent  *  'give  evidence  on  behalf  of  such 
company  of  any  statements  or  acknowledge- 
ments of  the  deceased  insured  in  an  action  by 
his  executor  or  administrator  against  such  com- 
pany, under  ch.  96,  4th  R.  S.,  sec.  41. 
Wilkins  J..  dixKentimi. 

O'Donnell  v.  Confederation  Life  Ins.  Co., 

2  R.  &  C,  570. 
Reversed  on  appeal  to  the  Supreme  Court  of 
Canada. 

The  Confedei'ation  Life  Association  Comjiany 
of  Canada  v.  O'Donnell,  11th  February, 
1879,  Cas.  Digest,  208. 

5S.    Expert  testimony— Definition  of- At 

the  trial  of  an  action  for  trespass  by  the  over- 
flow of  water  on  plaintiffs'  land  caused  by  a  dam 
erected  by  defendant,  evidence  was  rejected 
which  had  been  offered  by  the  defendant  to 
prove  the  respective  levels  of  water  at  the 
point  where  the  dam  was  erected,  and  at  the 
meadow  alleged  to  have  been  overflowed  in 
consefjuence  of  the  erection.  The  w'tness  whose 
evidence  was  rejected  testified  that  he  was  a 
practical  mill  builder,  that  he  had  erected  water 
power  mills,  and  that  in  doing  such  work  he 
had  to  take  levels  to  get  a  height,  but  that  he 
did  not  know  how  to  use  a  theodolite. 

Held,  that  the  evidence  should  have  been  re- 
ceived. 

Per  Ritchie,  J. — The  weight  to  be  given  to 
the  evidence  was  a  matter  for  the  jury  under 
the  direction  of  the  Court,  and  the  competency 
of  the  witness  to  take  levels  and  to  make  meas- 
urements should  have  been  a  subject  of  cross- 
examination. 

Expert  evidence  is  an  opinion  by  a  qualified 
person  on  facts  already  proved  involving  scien- 
tific or  technical  knowledge,  and  is  not  evi- 
dence of  things  done  or  measurements  taken 
which  any  one  is  competent  to  prove,  the  weight 
to  be  given  to  his  evidence  depending  upon  his 
ability. 

Cain  V.  Uhlman,  20  N.  S.  R.,  (8  R.  &  G.),  148 ; 

8  C.  L.  T.,  373. 


539 


EVIDENCE. 


640 


59.  Facts  within  knowledge  of  defendant 

— The  C'ourt  have  a  right  to  recjuire  uii  explicit 
explanation  of  facts  neccHsarily  within  the  de- 
fendants' knowledge  on  the  pain  of  treating  his 
plea  as  fraudulently  evasive  or  false.  Facts  not 
80  within  his  knowledge  may  be  stated  less  dia. 
tinctly.  In  the  latter  case  it  may  be  proper  to 
admit  statements  of  information  and  belief  which 
would  be  inadmissible  to  substantiate  a  fact 
before  a  jury,  the  province  of  the  Court  or  Judge 
being  not  to  establish  a  fact,  but  to  ascertain 
whether  there  is  a  fact  to  be  tried. 

The  Bank  of  Xora  Scotia  v.  Chipman  et  ai, 

1  N.  S.  I).,  521. 

60.  Finding  of  Master  sustained— Plaintiff, 

as  administrator,  complained  in  his  writ  that 
defendant  wrongfully  caused  a  vessel  to  be  con- 
demned and  sold,  and  received  the  proceeds, 
and  appropriated  them  to  his  own  use,  refusing 
to  account  to  him  therefor.  The  bill  was  dis- 
missed, with  costs,  as  to  two  of  the  defendants, 
as  there  was  no  evidence  of  their  havin^'  received 
anything.  As  to  another  defendant,  the  master 
reported  that  he  had  received  upwards  of  lf400, 
but  that  he  had  disbursed  a  greater  amount. 

Exceptions  were  taken  by  plaintiff  to  this 
report,  which  the  Court  held  to  be  sustained  by 
the  evidence,  and  the  decree  was  for  plaintiff, 
with  costs. 

Metzler  v.  Spencer  et  al,  R.  E.  D.,  511. 

61.  Foreign  law— Evidence  of- A  witness 

must  state  some  ground,  professional  or  practical, 
on  which  his  knowledge  rests,  to  qualify  him  to 
speak  of  the  law  of  a  foreign  8*ate.  It  is  not 
enough  for  such  a  witness  to  say  chat  he  is 
familiar  with  the  foreign  law,  without  stating 
the  ground  on  which  his  knowledge  rests. 

Where  a  witness  had  i-esided  in  this  Province, 
as  American  Consul,  for  six  years,  during  which 
time  certain  currency  laws  were  passed  in  the 
United  States,  of  which  hi&  only  knowledge  was 
derived  from  having  them  transmitted  to  him. 

Held,  that  this  was  not  a  sufficient  qualifica. 
tion,  in  the  absence  of  an  assertion  that  his 
official  duties  required  him  to  acquaint  himself 
with  the  currency  laws  vi  his  country. 

McKemie  v.  Gordon,  1  N.  S.  D.,  153. 

62.  Fresh  evidence- Application  for  new 

trial  on  ground  of  discovery  of  fresh  evidence — 
See  KEW  TRIAL. 

63.  Goods  conveyed  in  contemplation  of 

insolvency — Assignee  in  action  of  trover  need 
not  prove  demand — The  plaintiff,  as  assignee  in 
insolvency,  brought  an  action  of  trover  for  goods 


which  had  been  conveyed  by  one  Renwick  to 
defendant,  in  contemplation  of  insolvency.  The 
goods  had  been  sold  by  defendant  l)efore  action 
brought. 

HM,  that  evidence  was  not  necessary  of  a 
denmnd  and  refusal. 

Bliijh  V.  Darlinij,  3  R.  &  G.,  '248. 

64.  Improper  reception  of-Plaintlff  sold 

a  mare  to  defendant  for  8140,  in  part  payment 
of  which  he  accepted  an  order  drawn  by  defciul- 
ant  on  Albert  Graves,  for  $80.  To  an  action  l)y 
plaintiff  on  the  original  cause  of  action,  defumlunt 
pleaded,  among  other  pleas,  "non-presentment 
for  payment,  no  notice  of  dishonor,  and  etlects 
in  the  hands  of  Graves,  to  the  amount  of  the 
bill,  at  the  time  it  became  due."  The  issues 
thus  raised  were  not  put  to  the  jury,  their  atten- 
tion being  directed  to  issues  on  the  count  for  the 
original  cause  of  action,  and  to  conflicting  state- 
ments of  the  parties  as  to  the  terms  or  con- 
ditions on  which  the  order  was  received  by 
plaintiff.  The  evidence  of  plaintiff,  for  wliora 
the  jury  found,  was  :  "  the  order  was  not  taken 
as  a  payment.  I  said  I'd  take  it,  and  try  and 
get  it ;  if  so,  well  and  good  ;  if  not,  I  must  iiave 
my  money. " 

Held,  that  the  effect  of  this  evidence  being  to 
vary  the  note,  and  control  its  legal  operation,  it 
was  improperly  received,  and  that  the  rule  for  a 
new  trial,  should,  therefore,  be  made  absolute. 

Per  Wilkins,  J.,  dixsentinq. — It  having  been 
found  by  the  jury  that  plaintiff  did  not  ac(;ept 
the  order  on  Graves  in  payment  of  his  demand, 
his  remedy  on  the  contract  was  not  suspended 
or  affected  by  his  taking  the  bill. 

Iwjlis  V.  Allen,  1  N.  S.  D.,  101. 

65.  Improper  reception  of— Improper 

reception  of  testimony  will  not  invalidate  a 
verdict  for  plaintiff  when  there  is  suliicient 
additional  evidence  to  sustain  it. 

Russell  V.  Marshall,  James,  .S30. 

66.  Informer-Sth  R.  8.,  c.  103— Inrormer 

renouncing  claim — Defendant,  the  holder  of  a 
"  shop  license,"  was  convicted  before  the  Stipen- 
diary Magistrate  for  the  City  of  Halifax  on  the 
information  of  J.  for  having  unlawfully  allowed 
liquor  sold  by  him  to  be  consumed  on  the 
premises,  in  violation  of  the  provisions  of  the 
Liquor  License  Act  of  1886. 

In  the  County  Court  for  district  No.  1  the 
conviction  was  quashed  with  costs  on  the  ground 
that  the  informer,  not  having  renounced  his 
claim  to  the  fine  before  being  sworn  as  a  witness 
in  the  Court  below,  was  incompetent  as  a  wit- 
ness and  there  was  no  further  evidence  to  sup- 


Ml 


EVIDENCE. 


542 


port  the  conviction.     A   further  appeal  being 
Uikfii  to  the  Supreme  Court, 

III  Id,  thiit  the  niiitter  living  one  of  a  criminal 
niitiire,  there  was  no  iippeitl  from  the  County 
Court  to  tlie  Supreme  Court. 

.1^0,  tluit  the  provisions  of  f)th  R.  S.,  c.  103, 
excluding  thn  informer  in  certain  cases  from  giv- 
ing evidence,  arc  not  applicable  to  suits  brought 
k'fiiif  the  Stipendiary  Alagistrute  of  the  City  of 
Hidifiix,  but  if  they  can  be  held  to  apply,  the 
Judge  of  the  County  Court  on  trying  the  case 
rfe  novo,  should  have  received  the  evidence  of 
the  informer,  he  having  renounced  all  claim  to 
the  penalty  before  being  sworn. 

Quaere,  whether  there  was  an  appeal  from  the 
Stipendiary  Magistrate  to  the  County  Court. 

Qiiwre,  alxo,  whether  the  provisions  of  5tl) 
R.  iS,,  c.  103,  are  applicable  to  prosecutions 
under  the  Act  of  1886. 

Queen  v.  Shepearil,  20  N.  S.  R.,  (8  R.  &  G.),  476  ; 

9C.  L.  T.,253. 


67.  Insurance— Breach  of  warranty  — 

Proof  of  breach  —  Protest  —  Defendant  in  an 
action  on  policies  of  insurance  relied  among  other 
defences  on  an  alleged  violation  of  a  warranty 
that  the  vessel  would  sail  on  her  voyage  not  later 
than  3id  Dec,  1882.  The  vessel  set  sail  on  that 
day  and  was  subsequently  lost.  The  protest,  by 
mistake,  stated  the  4th  Dec,  1882,  as  the  day  of 
sailing. 

Held,  that  even  if  the  protest  admitted  a 
breach  of  warranty  it  could  not  be  given  in  evi- 
dence to  prove  plea  of  breach. 

liobertKon  et  a/,  v.  Pwjh,  20  N.  S.  R., 
(8R.  &G.),  15. 
Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada. 

Roherhon  v.  Pwjh,  15  S.  C.  R.,  706; 
9  C.  L.  T.,  17. 

68.  Insurance— Presumption  as  to  notice 

—The  sixth  condition  of  the  policy  required  the 
insured  to  give  notice  of  loss  in  writing  forthwith 
to  the  agent  of  the  corporation,  at  his  office  in 
Halifax,  and  to  furnish  preliminary  proof  to  the 
corporation  in  fifteen  days.  The  fire  took  place 
January  17th.  PlaintilF,  residing  at  Sydney, 
C.  B.,  where  the  insured  property  was  situated, 
went  on  the  next  day  to  the  sub-agents,  who  sent 
a  telegram  to  the  agent,  and  on  January  23rd 
plaintiff  sent  the  agent  written  notice,  which  he 
received  January  27th.  The  preliminary  proofs 
were  prepared  by  the  sub-agents,  January  22nd, 
and  received  by  the  agent  early  in  February — 
the  agent  could  not  tell  the  exact  date. 

Hdd,  that  the  notice  of  loss  was  sufficient, 
and  that  the  jury  might  fairly  presume  that  the 


preliminary  proof  had  been  sent  in  within  fifteen 
days,  wiiich  did  not  exjjire  until  February  2nd. 
Peppit  v.  N.  U.  it-  Mtrvaiitile  Inn.  Co., 

\  R.  &(;.,219. 

60.   InterroKatories  -  Foreign  companies 

to  answer  —  The  Court  will  order  a  defendant 
corporation  doing  business  in  Nova  .Scotia, 
though  incorporated  abroad,  to  answer  interro- 
gatories, under  4th  R.  S.,  c.  96. 

The  officers  of  such  company  can  be  interroga- 
ted, though  not  mentioned  by  name  in  the  com- 
mission to  interrogate. 

Hart  tt  al.  v.  Wt.itfm  Union  Tel.  Co., 

2R.  &C.,  533. 

70.  Interrogatories  —  Order  Tor  delivery 

of  interrogatories  and  for  discovery  on  oath 
before  defence  filed— 5th  R.  S.,  c.  103, 0.  xxxi. 
R.  1 — Discretion  of  Judge — An  order  was  made 
by  a  Judge  at  Chnnibers  giving  defendant  leave 
to  deliver  interrogatories  to  a  number  of  officials 
of  the  plaintiff  bank,  and  requiring  such  officials 
to  make  discovery  on  oath  of  certain  documents, 
correspondence,  Ac.  At  the  time  the  order  was 
granted  no  defence  to  the  action  had  been  deliv- 
ered. 

Held,  that  unde/  0.  xxxi,  R.  1,  the  Judge  had 
I  a  discretionary  power  to  make  such  order  before 
the  delivery  of  the  defence. 

Alio,  that  the  objection  to  the  order  on  the 
groimd  that  it  ordered  discovery  and  inspection 
as  well  aj  the  delivery  of  interrogatories,  could 
not  be  sustained. 

The  Covimtrcial  Bank  of  ]Yindmr\.  Bechi'ith, 

7R.  &G.,527; 
8  C.  L.  T.,  60. 

71.  Judgment  by  default— Proof  of— 

Defendant  put  in,  as  evidence  of  a  judgment,  the 
so-called  "record  by  default,"  in  the  form  No. 
11  of  schedule  A,  cap.  94,  4th  R.  S.,  signed  by 
the  plaintiff's  attorney. 

Held,  that  this  was  legal  evidence  of  a  judg- 
ment. 

McDonald  v.  Fergusson,  1  R.  &  G.,  70. 

72.  Judgment  on  appeal  from  Magistrates 

— Evidence  of — No  record  being  filed  in  the  Su- 
preme Court,  of  judgments  in  causes  appealed 
from  Magistrates'  Courts,  the  termination  of  the 
proceedings  under  which  the  arrest  vas  made  is 
sufficiently  proved,  in  support  of  an  action  for 
malicious  arrest,  by  the  testimony  of  a  compe- 
tent witness  who  heard  the  judgment  on  the 
appeal  pronounced  in  open  Court  by  the  Judge. 
Cox  V.  Gu7m,  2  R.  &  C,  528. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  of  the  Court 
below,  that  such  evidence  was  inadmissible,  and 


543 


EVIDENCE. 


544 


was  not  proper  evidence  of  a  final  judgment  of 
the  Supreme  Court  of  Nova  .Scotia. 

(hinnv.Cox,  'AH.  C.  R., '296. 

73.  Latent  defect  In  grant -Parol  evi- 
dence to  r'^medy  — A  latent  dcfeol  in  a  grant 
cannot  bo  rcmodiud  liy  parol  evidence. 

In  ordc-  to  correct  an  error  in  tlio  descriptive 
part  of  a  grant  by  paiol  evidence,  the  evidence 
niuHt  l)e  Hucii  aH  to  leave  no  doubt  of  the  inten- 
tion of  the  grantor. 

Jirtniiofkw  Frcwer,  James,  178. 

74.  Libel— Evidence  In  actions  for— 

5tr  DEFAMATION. 

75.  License  to  sell  —  Proof  of—  Proof  of 

the  minute  in  the  books  of  the  Council  author- 
izing a  sale,  is  sutHcicnt  evidence  of  a  license  to 
sell. 

Clillin  v.  Campbell,  James,  48. 

76.  Marriage  —  Proof  of-  The  testimony 

of  tile  minister  who  married  the  parties  that  he 
had  a  marriage  license  which  was  brought  to 
him  by  one  of  the  parties  ;  that  he  duly  per- 
formed the  same  ;  that  all  the  forms  of  law 
were  observed  as  required  by  the  license,  and 
that  the  marriage  was  performed  according  to 
the  rites  and  ceremonies  of  his  church,  is  suffi- 
cient proof  of  the  license  having  been  issued 
and  returned,  and  of  the  marriage  having  been 
duly  8(jlemnized. 

Wilkins,  J.,  didntante. 

Queen  v.  Allan,  1  N.  S.  I).,  5; 
2  Old.,  373. 

77.  Minutes  of  evidence- Explanation  of 

them  by  Judge  on  argument  of  appeal — 

Held,  that  the  Court  in  banc  could  receive  the 
explanation  of  the  Judge  as  to  the  nature  of  the 
question  to  which  a  statement  of  defendant  on 
the  minutes  of  evidence  was  an  answer. 

Royal  Canadian  Insurance  Co.  v.  Smith, 
5R.  &G.,322. 

78.  Minutes  of  Halifax  City  Council  — 

Evidence  ot — An  action  was  brought  against 
the  defendant  for  his  share  of  the  expense  of 
constructing  a  sewer  on  South  Park  Street,  and 
a  book  was  tendered  in  evidence  as  the  minute 
book  of  the  City  Council,  containing  the  resolu- 
tion authorizing  the  construction  of  the  sewer, 
but  was  rejected.  The  City  Clerk  explained  as 
to  this  book,  that  notes  were  taken  of  proceed- 
ings of  the  Council  by  himself  when  present,  and 
in  his  absence  by  his  assistant,  and  were  after- 
wards transcribed  more  fully  into  the  minute 


book  from  the  pencil  notes  taken  in  the  (irat 
instance,  and  certitied  by  the  mayor  at  the 
following  meeting  of  Council. 

ffeld,  that  as  the  resolution  in  question  was 
a  public  official  act  of  the  City  Council  registciccl 
in  the  txxtk  kept  for  tlie  purpose,  entered  by  the 
proper  officer  and  authenticated  by  the  signature 
of  the  mayfir,  the  book  should  have  been  receivcil 
in  evidence. 

City  of  Halifax  v.  Komam,  1  R.  ft  G.,  26.5, 

79.  Mortgage -Evidence  of  parol  release 

— Plaintiff,  as  administratrix,  sought  to  fuio- 
close  a  mortgage  for  I'iiOO  made  by  defendant, 
who,  in  his  answer,  set  out  a  series  of  transac- 
tions with  the  deceased  in  regard  to  the  mortgage, 
and  further  alleged  that  deceased  mortgagee  liad 
delivered  to  him  a  memorandum,  signed  ))y  iiini, 
as  follows: — "The  mortgage  which  I  hold  of 
W.  J.  W.,  bearim^  dale,  (&c.),  for  l''20(),  is  not 
payable  to  my  heirs,  executors  or  administrators 
after  my  death. — I.  W.  W."  The  niemoranilum 
was  not  produced,  but  on  proof  of  loss,  secondary 
evidence  was  given,  which  the  Judge  considered 
of  a  suspicious  character. 

Held,  that  the  memorandum,  even  if  there 
were  no  suspicious  circumstances  about  it,  would 
not  operate  as  a  release  of  the  mortgage,  eitlicr 
at  law  or  in  equity,  and  that  plaintiff  was  entitled 
to  a  decree. 

Woodworth  v.  Woodworth,  R.  E.  D,,.337. 

80.  Note  Indorsed  by  parties  as  president 
and  secretary  of  an  incorporated  company- 
Company  not  incorporated  at  time  of  indorse- 
ment—Evidence of  subsequent  incorporation 
not  admissible — In  an  action  brought  by  miloi- 
sees  on  a  promissory  note;  si^'ned  by  defendauta 
as  presi<lent  and  secretary  of  a  company,  tiie 
Judge  of  the  County  Court  found  that  at  the 
date  of  the  note  the  company  was  not  incoi'pora- 
ted,  and  rejected  evidence'oflfered  by  plaintiff  to 
show  that  at  the  time  of  negotiating  tlie  note 
the  company  was  incorporated. 

The  judgment  for  plaintiff  was  appealed  from 
and  the  appt^al  dismissed. 
Jardine  et  al.  v.  Rowley  et  al.,  3  R.  &  G.,  244, 

81.  Notice— Proof  of -Improper  reception 

of  evidence— The  plaintiff  company  in  order  to 
prove  a  certain  notice,  called  their  secretary, 
who  testified  to  the  loss  of  the  original,  and  to 
a  sufficient  search  having  been  made  for  it.  On 
cross-examination  he  stated  that  he  did  not  know 
from  whom  he  had  received  the  original,  nor  in 
whose  hand-writing  it  was.  The  paper  was  ten- 
dered, objected  to  and  rejected,  and  the  Judge 
also  refused  to  permit  the  plaintiff  then  to  intro- 
duce further  evidence  to  prove  it.     The  plaintife 


54o 


EVIDENCE. 


546 


alHo  ()irere<l  ftiiswera  to  intcrrogatoriua  by  one  of 
till  iK'fcndivntH,  which  were  on  file ;  ami  the 
ftiiHVi  r  of  luiotlicrof  the  ilvfundants,  whiuti  had 
iKit  lic'uii  (ik'd,  but  wliiuli  wuH  adinittud.  Thcsu 
wtTu  rejucted.    The  phiintitrii  thorcupun  becuinu 

lIOII'Mllit. 

Hi  hi,  WilkiiiH,  J,,  ilixxintiiiii,  that  the  dis- 
trttiim  of  tlie  Judge,  uh  to  the  further  exaiiiinu- 
tion  of  the  witiiosa  had  not  l)eon  properly  exer- 
ciai'il,  tiiat  the  unawcra  of  tlie  two  defundanta 
hIiiiuM  Imve  been  received  and  that  the  non-auit 
RhouUl  be  act  aaide. 

iVindsor  Marine.  Inn.  Co,  v.  Laild, 
2N.  S.  U.,493. 

82.  Objection,  when  too  late -Where  the 

plaiiitiil'ahewa  title  in  iiiniHelf,  and  atatea  that 
he  li:iH  a  good  title,  it  will  l)c  too  late  after  the 
jiliiiiitill's  case  iiaa  .'losed  to  o))ject  to  the  title 
na  not  having  been  au/Uciently  proved. 

Lynch  v.  Hhuj,  2  Thorn.,  418, 

83.  Parol  evidence  as  to  what  submitted 

to  and  conaidered  by  arbitrators  inadmiBsible 
-Sh  AKBITRATIOX  AND  AWARD,  17. 

81.   Parol  evidence  to  prove  fraud  where 

contract  partly  in  writing— 

See  CONTRACT,  33. 

85.  Parol  evidence  to  show  position  and 

Burveya  of  lands  in  grants— /'er  Sir  William 
Young,  C.  J.— Under  the  usage  of  the  Court, 
parol  evidence  is  admissible  to  show  the  actual 
position  and  surveys  of  lands  included  in  grants 
of  wilderness  and  wood  lands. 

Davinon  v.  Benjamin,  3  N.  S.  D.,  474. 

86.  Party  served  same  name  as  party 

liable  —  Where  the  defendant  nerved  with  pro- 
cess bears  the  same  name  with  the  party  obtiiin- 
ing  tiie  goods,  &c.,  it  is  prima  facie  evidence 
that  he  was  the  party  chargeable. 

Thayer  v.  Vance,  2  Thorn.,  269. 

87.  Perpetuating  testimony— Evidence  to 

support  bill  for— Plaintiffs  alleged  in  their  bill 
that  one  of  the  defendants  accepted  and  execu- 
ted a  lease  for  fourteen  years,  determinable  on 
six  months'  notice,  that  notice  was  given,  but 
the  period  had  not  expired  ;  that  said  defendant 
intended  to  contest  the  right  of  the  plaintiffs, 
and  set  up  a  title  in  th«  other  defendant  to  de- 
feat the  plaintiffs ;  that  while  this  litigation 
was  threatened  no  action  could  at  present  be 
brought,  and  that  the  evidence  of  a  certain  wit- 
ness would  be  necessary,  and  material  to  enable 
them  to  establish  this  claim  ;  that  he  was  aged 
18 


and  about  to  leave  the  Province,  and  though 
they  could  obtain  his  evidence  now,  they  might 
not  bo  able  to  do  so  at  the  time  of  an  action 
hereafter  brought. 

//(/'/,  that  sutticicnt  had  been  set  out  to  sus- 
tain plaintiffs'  bill  to  perpetuate  teatimony,  and 
thit  bill  waa  not  demurrable. 
Steel  Co,  Canada  {Limited)  v.   Vance  ft  at,, 

K.  K.  1).,  428. 

88.  Plalntlir  should  go  Into  the  whole  ot 

his  case  in  the  first  instance— It  ia  not  compe- 
tent for  plaintiff  to  rely  upi>n  n  jirimafnrii'  caao 
in  the  tirat  iiiHtanoe  and  then  su])p<>rt  it  by  fur- 
ther evidence  in  reply.  It  ia  in  the  discretion 
of  the  Judge  whether  he  will  allow  the  plaintiff 
to  give  evidence  in  reply,  but  such  discretion 
may  be  reversed  by  the  Court. 

.V«a>7/  V.  Foirkr  et  al.,  1  N.  S.  1).,  495. 

89.  Plans-Admlsslbility  of— The  defen- 

i  dants   tendered    two   plans   in   evidence  which 

came  from  the  Crown  Land  Oflice,  which  the 

witness  who   produced   tiiem   stated  ha<l  been 

i  there  for  at  least  thirty  years,  but  neither  their 

1  origin  nor  history  was  given  ;  nor  was  it  shown 

I  that  they  had  been  regarded  in  that  otiice  as 

authentic. 

Held,  that  the  Judge  did  right  in  rejecting 

them, 
I  Walker  et  al.  v.  Bayer.-,,  3  N.  S.  D.,  270. 

I 

00.    Plan  rejected  for  want  of  evidence 

I  to  connect  it — iJefendant  sought  to  set  aside  a 
verdict  for  plaintiffs  in  an  action  of  trespass  for 
cutting  and  removing  the  plaintiffs'  wharf,  on 
the  ground  that  a  plan  offered  by  defendant, 
which  was  admitted  to  have  come  from  the 
Crown  Land  otiice  and  was  signed  by  the  Sur- 
veyor-General, but  was  proved  in  no  other  way 
had  been  rejected.  There  was  no  evidence  be- 
fore the  Court,  and,  assuming  that  the  plan 
could  be  received  for  that  purpose,  there  waa 
none  on  the  face  of  the  plan  to  connect  it  with 
the  title  of  any  of  the  parties  to  the  suit. 

Held,  that  the  plan  was  properly  rejected. 

Esxon  et  al.  v.  Wood,  4  R.  &  G.,  276. 

Reversed  on  appeal  to  the  Supreme  Court  of 
Canada. 

9S.  C.  R.,239;  4  C.  L.  T.,  116. 

91.  Flan  annexed  to  deed— How  treated— 

See  DEED,  44. 

92.  Plea  of  right  of  way— Evidence  of 

way  of  necessity — Under  a  plea  of  right  of  way, 
where  evidence  was  received  of  way  of  necessity, 
it  is  too  late  to  object,  after  the  trial,  that  such 
evidence  was  not  receivable. 

Teed  v.  Beebe,  2  Thorn.,  426. 


647 


EVIDENCE. 


548 


M.  Police  offlcer — Juitlflcatlon  —  Plead- 
ing- Under  Doin.  Htat».  32  and  'Mi  Vic,  c.  'JO, 
B.  \',i'2,  thu  iloftndant  being  a  Huliouliiiate  policu 
otUuer,  may  give  ovidunue  tu  ahow  a  jiiatiticiition 
under  the  commiind  of  a  gupcrior  officer,  with- 
out pleading  auuh  justitication  iipeuiully. 

Peppy  V.  GroHO,  1  R.&  C,  31. 

94.    PoRsesHlon  —  Evidence  for  Jury  — 

Wiero  the  plaintifT  relied  upon  ii  documentary 
title  and  failed  in  tracing  it  to  the  Crown,  and 
gave  doubtful  evidence  only  as  to  the  pobsession 
of  one  of  the  prior  owners, 

//eld,  that  this  evidence  ought  to  have  been 
left  t(»  the  jury. 

Shey  et  al.  v.  Chiiiholm,  James,  S2. 

95.  Possession  —  Evidence  of,  in  eject- 
ment— When  evidence  wos  given  that  the  ances- 
tor of  the  lessors  of  the  plaintiff  had  cut  wood 
off  a  lot  of  land  of  which  he  subsequently  ob- 
tained a  deed,  held,  that  it  was  not  sutiicient  to 
support  an  action  of  ejectment. 

McDonald  et  al.  v.  Chhholm,  2  Thorn.,  404. 

iS'ee,  alao,  EJECTMENT. 

96.  Possession  -Evidence  of,  in  trespass— 

See  TRESPASS. 

97.  Power  of  Court  to  review  evidence 

on  appeal — 

See  APPEAL,  V,  29-40. 

98.  Probate- Evidence  of  settlement  of 

estate — The  real  estate  of  the  intestate  was 
partitioned  by  commissioners  appointed  under 
the  Probate  Act,  who,  by  their  report,  left  a 
certain  portion  of  the  land  undivided.  This  par- 
tition was  confirmed  by  order  of  the  Court,  the 
estate  having  been  previously  settled  Yy  decree 
of  the  Judge  of  Probate,  which  was  in  ')vidence. 
Afterwards,  W.  Hawkins,  husband  of  one  of  the 
heirs  of  intestate,  petitioned  the  Judge  of  Probate 
for  a  partition  of  the  undivided  portion  ;  and  a 
large  body  of  evidence  of  possession  was  put  in 
on  bo'h  sides,  the  whole  of  which  this  Court  held 
to  be  futile  and  unnecessary,  as  there  was  no 
ground  for  sustaining  any  possession  in  either 
party  that  could  influence  the  decision.  The 
Judge  of  Probate  dismissed  the  petition  on  the 
ground  that  he  had  no  power  to  settle  disputed 
questions  of  title.  On  appeal  to  the  Judge  in 
Equity  this  decision  was  over-ruled,  and  the 
Judge  of  Probate  directed  to  proceed  with  the 
cauE*!,  which  he  did,  and  dismissed  the  petition 
on  the  merits,  dividing  the  costs  between  the 
litigants.     Both  parties  having  appealed, 

Held,  that  the  final  decree  above  referred  to 


was  evidence  with  the  other  evidence  bcforu  tho 
Court  of  the  final  settlement  of  the  estate  liy  the 
Judge  of  Probate. 

In  re  Entate  of  John  Simpnon,  3  R.  &  C,  3.^)7, 

99.  Promissory  note  delivered  up  as  paid 

by  mistake-  Evidence  of  mistake-  In  an  lul- 
justmcnt  of  accounts  between  plaintiff  and  defen- 
dants a  promissory  note  made  by  defeiuliinlH  in 
favor  of  plaintiff  waa  deliverod  up  to  tlitni  with 
a  receipt  in  full  indorsed  upon  it  and  signed  liy 
plaintiff.  Immediately  after  the  adjuHtnient  the 
plaintiff  discovered  that  a  mistake  had  l)cen  irmde 
in  tho  settlement  and  at  once  applicil  to  have  it 
rectified.  This  was  refused,  and  he  llien  brought 
action  on  the  note.  On  tho  trial  the  defeniluiitH 
produced  the  note  under  notice  to  produce,  und 
tho  plaintiff  having  testified  that  he  had  put 
the  indorsement  on  under  a  mistake,  teiulercd 
evidence  of  tho  mistake  itself.  The  Judje  re- 
jected tho  evidence  and  also  evidence  of  whic 
one  of  the  defendants  had  said  when  informed 
of  the  mistake,  and  charged  the  jury  that  plain- 
tiff's only  remedy,  if  any,  was  in  Equity. 

Held,  Wilkins,  J.,  ditsenting,  that  the  evi- 
dence should  have  been  received  and  that  plaintiff 
could  maintain  an  action  at  law  upon  the  note 
as  well  as  proceedings  in  equity  to  rectify  the 
mistake. 

AtUnaon  v.  Gould  et  al.,  2  N.  S.  D.,  482. 

100.  Promissory  notes— Evidence  alTect* 
ing- 

See  BILLS  OF  EXCHANGE  AND  PKOMI880BT 
NOTES,  IV. 

101.  Proof  of  scienter  In  action  against 
owner  for  injuries  done  by  animals— 

See  ANIMALti,  1  and  2. 

102.  Record -Filing  of-Laches-PlalntllT 

proposed  on  the  trial  to  give  in  evidence  a  copy 
of  a  record  alleged  to  have  been  filed  March  13th, 
1878,  to  meet  a  plea  of  nul  tiel  record.  The  Pro- 
thonotary  of  the  Court,  called  by  plaintiflF,  t^ated 
that  no  record  of  that  date  was  to  be  found,  and 
on  cross-examination  said  the  first  record  he  had 
seen  was  filed  August  18th,  187«,  and  that  this 
was  the  first  record  that  had  been  sent  to  him 
by  the  attorney  whose  duty  it  was  to  prepare  it. 
Held,  that  the  Judge  had  properly  rejected 
the  evidence,  and  that  he  was  justified  in  refus- 
ing to  allow  a  record  to  be  filed  nunc  pro  tv.nt. 
Hardy  v.  Smth,  1  R.  &  G.,  351. 

108.   Record  roll-  Delay  In  llling- Where 

the  defendant  offered  in  evidence  a  record  roll, 
in  a  previous  action  between  the  same  parties, 


64!) 


EVIDENCE. 


550 


wliich  had  been  handed  to  the  Prothonotary  in 
Court,  and  marked  filed,  only  half  an  hour  be- 
fore it  witR  BO  ton<lered  in  evidoncn, 
Udd,  that  theiJud({u  wan  right  in  rejecting  it. 
Murdoik  V.  Orant,  2  Thorn.,  100. 

104.  Record  —  Verdlet  —  Evidence  of- 

Plnintiff  brought  an  action  for  uho  and  occupa- 
tion, which  wuH  afturwardH  amended  by  adding 
a  count  for  mesne  proHta.  DcfendantH  pleaded 
disputing  plaintifT'H  title  and  poHtieHHion,  and 
plaintitt',  besides  joining  iMsuo,  replied  itetting  out 
tilt-  fiict  of  un  ejectment  Huit  against  one  J)avii, 
tiic  order  of  u  Judge  permitting  defendanta  to 
appear  us  landlords  and  ilefend  said  ejectment 
suit,  the  proceedings  in  said  suit  on  the  (itli  May, 
7'),  before  McDonald,  J.,  when  eami  the  said 
William  .Tost  and  the  said  Church  Wardens  and 
Vestry  and  a  jury,  who  found,  etc. 

On  tiie  trial,  tht  verdict  in  an  ejectment  suit 
wnB  tendered  and  received  without  objection. 
It  was  signed  by  the  foreman  and  Prothonotary, 
and  purported  to  bo  between  Jost,  as  plaintiff, 
and  Davis  as  defendant,  and  did  not  mention 
the  preHcnt  defendants  at  all.  A  record  signed 
by  the  attorney  and  not  authenticated  by  an 
officer  of  the  Court,  was  then  tendered,  which 
recited  an  ejectment  suit  between  Jost  and 
Davis,  the  order  of  a  Judge  allowing  the  present 
defendants  to  appear  and  defend,  in  their  own 
name,  tiie  proceeding  on  April  27tli,  '75,  when, 
before  .Sir  W.  Young,  C.  J.,  and  his  associate 
Justices,  came  the  parties  within  mentioned 
(being  the  plaintiff,  Davis,  and  the  Church  VV'or- 
dens),  "and  a  jury,  sworn,"  etc.  The  record 
was  rejected  and  the  plaintiff  non-suite.d. 

Hdd,  that  the  record  should  have  been  re- 
ceived. 

Weatherbe,  J.,  dissenting. 
JoHtv.  Church  Wardens  amd  Festry  of  St.  George's, 

1  R.  &G.,451. 

105.  Recovery— Evidence  of- The  record 

roll  filed  by  the  attorney  in  a  cause  on  entering 
judgment  is  the  only  evidence  of  a  recovery. 
Chesley,  Adm'r,  v.  Bmmett,  1  R,  &  C,  112. 

106.  Residence  of  narty— Evidence  of- 

Plaintiff,  as  assignee  under  the  Insolvent  Act  of 
1869,  brought  action  to  recover  $700  paid  within 
thirty  days  of  the  assignment  by  one  Hamilton 
to  defendants,  on  a  judgment  entered  up  at  the 
suit  of  defendants,  shortly  before  the  assignment, 
but  not  recorded,  because,  as  one  of  the  defen- 
dants said,  it  would  injure  Hamilton's  credit. 
The  jury  found,  in  answer  to  questions  put  to 
them,  that  the  payment  had  been  made  within 
the  thirty  days,  that  Hamilton  was  then  unable 
to  meet  his  engagements  in  full,  and  that  defen- 


dant* had  probable  reason  for  iNilioving  him  to 
bo  so  unable,  and  they  found  for  plaintiff  without 
specifying  any  sum.  Objections  having  been 
taken  to  tho  verdict  by  rule  nisi, 

field,  that  tho  distinction  of  Hamilton  in  the 
original  writ  in  evidence  as  "of  Bedford  in  the 
County  of  Halifax,"  was  evidence  of  Hamilton's 
residence  being  outside  of  tho  city,  and  that 
judgment  should  bu  entered  for  plaintiff  for 
iil!7<X)  and  costs. 

Cochran  v.  Chlpmnn  it  al.,  2  R.  &  C,  284. 

107.  Reviewing  decision  of  County  Court 

on  matter  of  evidence — 

See  APPIAl,  V. 

108.  Sealing  of  Instrument-Pleading— 

The  bond  contained  the  usual  attestatKm  clause 
as  to  signature  and  sealing,  and  defendant  had 
acknowledged  several  times  that  ho  had  execu- 
ted a  bond  to  J.  H.,  but  plaintiff's  son  said  he 
did  not  think  the  original  which  ho  saw  was 
sealed.  The  copy  from  tho  Registry  contained 
no  indications  of  seal,  and  tho  defendant  (whose 
evidence  on  some  essential  points  was  inconsist- 
ent with  that  of  plaintiff's  witnesses  and  the 
proven  facts  of  the  case),  denied  that  he  had 
ever  delivered  a  sealed  bond  to  J.  H. 

The  question  as  to  the  sealing  was  left  to  the 
jury,  who  found  "  that  tho  document  in  evidence 
was  identical  in  purport  with  that  signed  by 
defendant,  which  he  denied,"  and  they  found  a 
verdict  for  the  plaintiff. 

Held,  that  the  question  was  properly  left  to 
the  jury,  and  that  the  verdict  should  not  be  dis- 
turbed. 

The  sealing  and  delivery  of  a  bond  are  put  in 
issue  by  a  plea  that  the  defendant  did  not 
make  and  deliver  any  such  bond  aa  that  de- 
clared on. 

Hazell  V.  Dyas,  2  R.  &  C,  36. 

109.  Secondary  evidence  of  letter  to  agent 

of  defendant,  which  had  been  shown  to  plain- 
tifif,  as  evidence  of  contract — Plaintiff  was  em- 
ployed by  the  manager  of  the  defendant  company, 
in  August,  1874,  as  an  engineer,  and  on  the  2l8t 
of  September,  1874,  the  manager  wrote  him  that 
his  services  would  not  be  required  after  the  26th 
of  September,  to  which  date  his  account  was 
made  up  and  paid.  On  October  6th,  1874,  the 
secretary  in  London  wrote  to  the  manager  in 
Londonderry,  instructing  him  to  cancel  the  notice 
to  leave  above  mentioned,  and  stating  that  it  had 
been  agreed  that  the  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  fixed  by  the  board  when  the  salaries 
of  other  ofiScers  were  discussed."  This  letter 
was  shown  to  the  plaintiff  by  a  clerk  of  the  com- 


551 


EVIDENCE. 


552 


pany,  who  gave  plaintiff  a  copy  which  was 
compared  witli  the  original  in  the  presence  of 
the  manager. 

Held,  that  the  secondary  evidence  of  this  let- 
ter, on  non-production  of  the  original,  was  pro- 
perly admitted  by  the  Judge,  and  that  with  a 
letter  of  similar  tenor,  bearing  the  same  date, 
and  addresse<l  to  the  persons  conducting  the 
company's  establishment  at  Londonderry,  it  war- 
ranted the  verdict  found  for  the  plaintiff  on  the 
basis  of  a  permanent  engagement. 

Oray  v.  Tht  Sled  Co.  of  Canada, 
1  R.  &  G.,  434. 

110.  Secondary  evidence  of  lost  deed- 
Where  a  deed  has  been  traced  into  the  actual 
possession  of  a  party,  it  is  necessary  to  call  him 
to  account  for  it  before  secondary  evidence  can  | 
be  let  in  ;  l)ut  where  doidjt  exibts  as  to  whetlier 
it  was  actually  left  witii  a  party   who  has  no  1 
interest  in  it,  held  sufficient  to  prove  a  search  j 
amongst   the  papers  of  tiie  person  who  it  was  \ 
presumed  last  had  possession  of  it.  j 

liarto  V.  Mon-is,  Cochrau,  90.  j 

111.  Secondary  evidence  of  record  —In 

an  actior.  to  revive  a  judgment  secondary  evid- 
ence of  the  record  was  admitted  on  proof  of  loss 
and  of  the  entries  in  the  hand  of  the  late  Pro- 
thonotory  in  the  judgment  book  indicating  that 
the  roll  had  been  filed  and  execution  issued. 

Graham  v.  Boak,  3  R.  &  G.,  286. 

112.  Secondary  evidence  when  not  ob- 
jected to— Presumption  as  to  notices  to  pro- 
duce, &c. — Where  an  objection  to  secondary 
evidence  of  a  deed  is  eithe-.-  not  taken  or  is 
waived  at  the  trial,  it  ca-mot  be  taken  after- 
wards;  and  in  such  case  the  regularity  of 
notices  to  produce  and  matters  of  the  like  kind 
is  always  presumed. 

Smith  et  al.  v.  Smith  et  al,  2  Old.,  303. 

113.  Shipping  —  Ownership  of  vessel  — 

Presumptive  evidence  of— Where  the  managing 
owner  and  the  master  of  a  ship  order  necessaries 
for  the  navigation  of  the  ship  on  credit,  the 
owners  are  liable.  The  certificate  of  registry  is 
presumptive  evidence  of  the  ownership.  (See 
4th  R.  S.,  chap.  96,  sec.  31.) 

Smith  V.  Fulton  et  al.,  2  R.  &  C,  225. 

114.  Slander— Evidence  of  rumors,  not 

known  to  defendant,  inadmissible  to  show 
aense  in  which  words  used — Defendant  used, 
in  reference  to  the  plaintiff,  the  words  "  stud," 
and  "  mare-rider,"  for  which  plaintiff  brought 
an  action  of  slander,  with  an  mnuendo  attrib- 


uting to  the  words  the  meaning  that  plaintiff  had 

committed   the  crime  of  buggery.     The  Court 

set  aside  the  first  verdict  on  the  ground  tiiat 

the  words  were  not  actionable  j/cr  xe.     Ou  the 

second  trial  the  only  evidence  adduced  by  way 

of  foundation  for  the  question  as  to  the  sense  in 

which  the  words  were  understood  was  tiiat  of 

rumors  in  the  neighborhood  that  the  plaintiff 

had  committed  such  crime,  but  it  was  not  shown 

that  these  rumors  were  known  to  the  defendant. 

He/d,  that  the  evidence  had  been  improperly 

admitted,  and  that  the  verdict  for  plaintiff  must 

be  set  aside. 

Grant  v.  iStm^won,  3  R.  &  C,  141, 

113.    Special  Case  -Power  of  Court  to  add 

to— 

On  appeal  to  the  Supreme  Court  of  Canada, 

In  lioak  el  al.  v.  The  Merchants'  Marine  In- 
/mrnnce  Company,  1  R.  &  C,  288, 

Held,  that  when  a  case  has,  by  consent  of 
parties,  been  turned  into  a  special  case,  and  the 
Judge's  minutes  of  the  evidence  taken  at  the 
trial  agreed  to  be  considered  as  part  of  the  said 
special  case,  the  Court  has  no  power  to  add 
thereto,  except  wit''  the  like  consent,  and  has 
no  power  to  order  any  ti.rther  evidence  to  be 
taken. 

Jioak  et  al.  v.  The  Merchants'  Marine  Im.  Co., 

1  S.  C.  R.,  110. 

116.    Telegram-Proof  of -Principle  upon 

which  secondary  evidence  of,  admitted— In  an 
action  claiming  damages  for  wrongfully  procur- 
ing the  plaintiff's  son  to  leave  his  service  and 
refusing  to  allow  him  to  return,  secondary  evi- 
dence was  offered  and  rejected  of  a  telegram  sent 
by  plaintiff  to  defendant  demanding  the  son's 
return. 

Held,  on  appeal  that  the  evidence  should  have 
been  received. 

A  new  trial  was  ordered. 

The  same  principle  that  admits  proof  that 
letters  were  deposited  in  the  post  office  duly 
addressed,  as  tending  to  show  that  they  were 
received  by  the  persons  to  whom  they  are  ad- 
dressed, applies  to  telegrams.. 
White  V.  Flemming,  20  N.  S.  R.,  (8  R.  &  G.),  335 

See,  also,  DEFAMATION,  12. 

m.    Transfer  of  personal  property - 

"What  necessary  for  defendant  to  prove  before 
he  can  dispute  bona  fides— A  defendant  dis- 
puting the  bona  fides  of  a  transfer  of  personal 
property  to  plaintiff,  must  prove  himself  to  be  a 
judgment  creditor  or  an  officer  acting  under 
legal  process. 

McGUvray  v.  Gibbons,  James,  15'- 


553 


EVIDENCE. 


554 


118.  Trust— Parrtl  evidence  of— Plaintiff 

in  his  bill  or  writ,  set  out  that  John  Blair 
granted  certain  lands  to  defendant  by  deed, 
whicii  though  absolute  in  its  terms,  was  given 
to  secure  ^600  advanced  by  defendant  to  cred- 
itors of  said  grantor,  and  that  defendant,  at 
the  execution  of  the  deed,  promised  to  reconvey 
to  the  grantor  on  payment  witnin  three  years  of 
the  amount  due  ;  that  the  estate  of  the  grantor 
had  hecome  vested  in  plaintiff  who  had  tender- 
ed tlie  ^600  and  offered  to  pay  any  balance 
found  to  be  due  defendant,  who  refused  to 
accept  the  money  or  execute  a  deed.  Defend- 
ant's answer  set  up  a  parol  trust  to  pay  in  full  a 
debt  duo  by  the  grantor  to  defendant  and  apply 
the  surplus  ratably  among  five  other  creditors  ; 
that  tiie  amount  thus  due  was  more  than  the 
$6(10  tendered,  and  defendant  offered  to  reconvey 
the  land  on  payment  of  the  debts  as  security  for 
which  it  was  given.  A  memorandum  signed  by 
the  grantor  was  delivered  to  the  defendant  at 
the  time  of  the  conveyance,  witnessing  that 
"the  sums  attached  to  the  following  names" 
(the  five  creditors  referred  to  by  the  defendant 
in  his  answer)  "are  included  as  the  considera- 
tion money  of  .John  Bluir  to  Robert  Chambers." 
The  creditors  referred  to  were  at  the  time  pres- 
sing lilair  for  payment,  and  gave  him  time  in 
consideration  of  this  conveyance.  The  claims 
of  several  of  them  were  bought  at  a  reduced 
rate  by  Blair's  son-in-law  in  Blair's  interest. 

Hdd,  thct  there  was  a  consideration  moving 
from  the  several  creditors  named  in  the  memor- 
andum to  Blair,  and  a  resulting  trust  in  favor  of 
all  the  said  creditors  ;  that  parol  evidence  of 
this  trust  could  be  given  consistently  with  the 
Statute  of  Frauds  ;  and  that  defendant  held  the 
land  in  trust  for  the  payment  of  his  own  debt 
and  the  debts  of  the  other  creditors  at  their  full 
amount,  notwithstanding  the  purchase  of  the 
same  for  a  reduced  sum,  which  was  held  to  be  a 
matter  solely  between  those  creditors  and  their 
assignee. 

Page  V.  Chamherx,  1  R.  &  G.,  2,32. 

119.  Usage— Evidence  of  a  usage  con- 
trary to  a  settled  principle  of  law  is  not  admis- 
sible. 

Hardy  et  al,  v.  Fairbanks  et  al.,  James,  432. 

120.  Water-course— Action  for  obstruct- 
ing—Evidence to  support — In  an  action  for 
obstructing  a  water-course,  and  thereby  prevent- 
ing the  working  of  a  mill,  to  entitle  plaintiff  to 
recover,  he  must  clearly  show  that  the  whole 
obstruction  is  the  act  of  defendant.  If  therefore 
a  wall  be  built  by  defendant  narrowing  the  water- 
course, and  subsequently  a  freshet  takes  place, 


which  shallows  the  water-course,  no  action  will 
lie  against  defendant. 

Foxier  V.  Fowler,  2Thom.,  425. 

121.  Weight  of  Evidence— Plaintiff  bad  to 

prove  title.  His  place  of  beginning  was  Identi- 
fied, and  his  description  in  the  grant  then  read  : 
"  running  south  52  chains  to  a  large  pine  tree 
marked  'J.  G.,'  and  thence  west,  &c."  To 
reach  the  locwi  the  line  should  be  extended  about 
50  chains  more.  To  that  increased  distance  the 
surveyor's  line  on  the  ground  extended,  but  there 
was  no  pine  tree  so  marked  either  at  the  diitance 
expressed  in  the  description  or  at  the  end  of  the 
surveyor's  line.  At  the  latter  point,  however,  a 
xpruce  tree  was  marked  "  H.  G."  and  "  J.  G." 
The  plan  attached  to  the  grant  represented  the 
lot  as  a  different  shape  from  that  claimed,  and 
the  area  expressed  in  the  grant  was  inconsistent 
with  plaintifTa  contention. 

Held,  per  McDonald,  C.  J.,  and  Weatherbe 
.and  Thompson,  JJ.,  that  the  plaintiff  had  given 
no  evidence  of  title  to  the  loam,  and  per  Rigby, 
J.,  that  the  preponderance  of  evidence  was 
against  plaintifTs  contention. 

Verdict  for  plaintiff  therefore  set  aside. 

Gates  v.  Davidson  et  al.,  5  R.  &  G.,  431. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  that  there  was  evidence  for  the  jury 
that  the  line  claimed  by  the  plaintiff  was  the 
western  line  of  his  grant.  The  case,  however, 
was  not  so  clear  as  to  justify  the  Court  in  rever- 
sing the  decision  of  the  Court  below,  come  to  on 
a  review  of  the  evidence  ;  but  was  a  proper  case 
for  further  consideration  on  a  new  trial,  Henry 
J. ,  dissentinfj,  appeal  dismissed  with  costs. 
Oates  v.  Davidson,  l£th  May,  1SS5, 

Cas.  Digest,  516. 

122.  Weigbt  of  evidence -Reflisal  to  re- 
view— Decision  on — Rule  to  set  aside  a  verdict 
for  defendant  in  an  action  tried  before  a  Judge 
without  a  jury,  discharged  with  costs,  where 
there  was  a  conflict  of  testimony  on  the  main 
question  on  which  plaintiff's  right  to  recover 
depended,  and  no  clear  preponderance  of  evi- 
dence for  the  plaintiff. 

Boxcen  v.  Troop  e<  o^.,  1  R.  &  G.,  137. 

123.  Proof  of  by  certifled  copy— Attesta- 
tion— A  will  is  sufficiently  proved  by  the  produc- 
tion of  a  certified  copy,  when  the  notice  required 
by  3rd  R.  S.,  c.  1.35,  s.  36,  has  been  given. 

It  is  also  sufficiently  attested  where  the  tes- 
tator could  see  the  witnesses  sign,  had  he  chosen 
to  do  so,  though  there  was  no  proof  that  he 
actually  did  see  them  sign,  and  they  were  in  an 
adjoining  room  at  the  time. 

Carrigan  v.  Carrigan,  2  Old.,  8. 


555 


EXECUTION. 


556 


124.  Witness,  when  incompetent  -A  party ' 

directly  intcrestoil  in  a  defence,  who  has  indem- 
nified the  defendant  on  the  record  and  who  Htates 
that  the  suit  is  defended  on  his  individual  behalf, 
is  incompetent  as  a  witness  under  Lord  Denman's 

Act. 

Johnntone  v.  Brenan,  James,  14. 

125.  Agreement-Prior  verbal  agreement 

— Evidence  of,  when  admissible— Good  will  of  i 
business — When  a  party  enters  into  a  written  ! 
agreement,  under  seal,  for  the  sale  for  a  certain 
amount  of  all  his  right,  title,  share  and  interest  1 
in  a  certain  business,  evidence  is  inadmissible  to  ■ 
prove  a  prior  verbal  agreement  for  the  sale  of  ! 
the  "  good  will  "  of  the  business  for  a  sum  in  ad-  j 
dition  to  the  amount  so  specified  in  the  written  : 
agreement. 

Lind/fy  v.  Lacey,  1 1  Law  Times  Rep. ,  N.  S. , 
273,  distinguished. 

Anitin  V.  Boone,  2  Old.,  149. 


EIECVTION. 

1.  Appeal  to  Supreme  Coun  of  Canada- 
Stay  of  execution  on— Where  judgment  is  for 
defendant,  and  plaintiff,  appealing  to  the  Su- 
preme Court  of  Canada,  wishes  to  stay  exccu-  | 
tion  for  defendant's  costs,  he  must  give  security 
for  §750  or  §2r>0,  in  addition  to  the  §500  pre- 
scribed by  "  the  Supreme  and  Exchequer  Courts 
Act."  j 

Kinney,  Assignee,  v.  Dudman,  2  R.  &  C,  376.  j 

2.  Attachment— Execution  taken  out  on,  > 

without  bond  approved,  set  aside — Wliere  an 
execution  is  taken  out  on  an  attachment  against 
an  absent  or  absconding  debtor,  without  the 
bond  for  such  execution  having  been  allowed  by  j 
the  Court  or  a  Judge,  the  Court  will  set  it  aside 
but  without  costs,  though  the  bond  l)e  actually 
made  and  filed  before  the  issue  of  the  execution, 
and  the  sureties  unexceptionable. 

Allan  V.  Caswell,  1  Old.,  405. 

3.  Binds  fl-om  what  date-2nd  B.  S.,  c. 

134,  s.  127 — All  execution  binds  the  goods  of  a 
defendant,  as  against  himself  or  his  personal 
representatives,  from  the  date  of  its  issue,  and 
can  be  levied  on  them  notwithstanding  his 
death. 

Young,  C.  J. ,  dissenting. 

Construction  of  section  127  of  the  Practice 

Act.  (Revised  Statutes,  2nd  series,  chapter  134.) 

Burrows  v.  Isener,  1  Old.,  371. 

But  see  5th  R.  S.,  c.  104,  O.  xl.,  R.  32. 


4.  Bond  conditioned  to  render  defendant 

to  Sheriff  of  Halifax  —  Execution  placed  in 
hands  of  Sheriff  of  Annapolis  where  was  venue 
of  action — Held  properly  so — Amendment- 
Indorsement  of  execution— The  original  plain- 
tiff, who  died  after  the  commencement  of  the 
suit,  tlie  suit  being  continued  by  his  adminiiitra- 
tors,  issued  at  Annapolis  a  writ  of  capias  against 
one  Cutler,  returnable  at  Annapolis,  directed  to 
the  Sheriff  of  Queens  or  any  other  Sheriff,  under 
which  Cutler  was  arrested  by  the  Siieriff  of 
Halifax  County,  in  his  bailiwick,  and  held  to  bail, 
defendant  l)ecoming  surety,  and  thecondi'ioii  of 
the  bond  being  that  Cutler  sliould  be  rendered 
into  the  custody  of  the  Sheriff  of  Halifax.  Tiie 
declaration  in  the  suit  against  Cutler  was  on  a 
bill  of  exchange  drawn  by  Cutler  and  otliersaiul 
dishonored,  with  pai'ticulars  applicable  to  huoIi 
a  count,  together  with  common  counts  laying 
the  indebtedness  in  Cutler  and  said  others,  hut 
after  issue  joined  common  counts  were  aihlcd, 
laying  the  indebtedness  in  Cutler  only,  and  par- 
ticidars  accordingly.  Judgment  was  recovered 
against  Cutler,  and  an  execution  issued  directed 
to  the  Siieriff  of  Annapolis  in  the  usual  form, 
but  without  any  indorsement  especially  directing 
the  Sheriff  to  take  the  body.  No  execution  was 
placed  in  the  hands  of  the  Sheriff  of  Halifax, 
and  tiie  Sheriff  of  Annapolis,  after  holding  tlie 
execution  sixty  days,  returned  non  est  inmitut. 
Held,  that  the  execution  had  been  properly 
placed  in  the  hands  of  the  Sheriff  of  Annapolis 
County,  in  whicli  the  venue  in  the  original  action 
was  laid,  and  not  in  Halifax,  where  the  arrest 
was  made  ;  and  that  the  objection  as  to  the 
amendment  of  the  writ  could  not  prevail,  as 
there  was  notliing  before  the  Court  to  show  the 
nature  of  the  debt  sworn  to  in  the  affidavit  on 
which  the  capias  issued,  or  that  the  plaintiff  hud 
not  recovered  on  the  declaration  as  originally 
framed,  but  tliat  in  order  to  enable  plaintiff  to 
bring  action  against  the  defendant  as  bail,  a  writ 
should  have  been  placed  in  the  SherifTs  liaiids 
with  instructions  indorsed  to  take  the  body  of 
tlie  principal. 

Oamza  v.  Black;  3  R.  &  C,  129. 

5.  Execution  against  individual  members 

of  corporation  —  Cumulative  remedy  not  al- 
lowed— Rule  nisi  for  calling  on  individual  mem- 
bers of  a  corporation,  against  which  an  execution 
had  been  issued  for  costs  and  returned  not  satis- 
fied, to  shew  cause  why  execution  should  not 
issue  against  them  individually.  The  applica- 
tion showed  that  the  officers  of  the  corporation 
had  been  applied  to  for  payment,  but  had  refused, 
although  they  had  funds  in  their  hands. 

The  rule  was  drawn,  requiring  them  to  si  ew 
cause  why  the  execution  should  not  issue  against 


557 


EXECUTION. 


558 


the  individual  members,  and  also,  that  proceed- 
ings Ik!  Stayed. 

Pir  Halliburton,  C.  J.— Take  your  rule  for 
the  execution  only,  or  else  in  the  alternative. 
You  uunnot  have  a  cumulative  remedy. 

Church  Wardeiin,  Avihemt,  v.  Davinon, 

James,  106. 

6.   Execution  against  member  of  Club— 

All  iipplioation  having  been  nuide  for  leave  to 
i.isuc  an  execution  against  an  individual  member 
of  tlie  defendant  Club,  an  execution  against  the 
C'lul)  iiaving  been  returned  unsatisfied, 

III  III,  tiiat  section  l.S  of  cliapter  r)3,  4th  R.  S., 
creatuil  no  liability  on  the  part  of  members  of  a 
corporation,  but  merely  provided  that  tiiey 
otiouhl  not  be  relieved  from  any  liability  that 
wouhl  have  attached  to  them  as  partners  if  unin- 
corporated ;  that  the  members  of  the  defendant 
t'hih  would  not,  if  unincorporated,  have  been 
liiililo  as  partners,  and  the  Statute  was  not  inten- 
ded to  apply  to  such  a  corporation,  and  even  if 
this  wore  not  tlie  case,  that  tiie  plaintiff  could  not 
hohi  an  individual  member  liable,  without  prov- 
ing that  he  was  a  member  at  the  time  of  the 
return  of  tlie  execution  issued  against  the  Club. 

Riilt  nin  for  leave  to  issue  execution  dis- 
charged, but  without  costs. 

Scott  V.  Royal  Halifax  Yacht  Club, 

1  R.  &  G.,  322. 

1.  Execution  irregularly  issued  and  in- 

effective  —  Not  sufficient  ground  for  setting 
aside  an  eflFective  execution  subsequently 
issued  —  Costs  refused  to  successful  party 
where  incurred  in  consequence  of  his  default- 
On  the  Kith  October,  1881,  plaintiff  rrooverei' 
judgment  against  defendant,  and  on  the  3rd 
October,  1885,  issued  an  execution  for  the 
amount,  describing  the  judgment  as  of  the  18th 
July,  1885.  Finding  his  mistake,  he  directed 
the  Slieriff  to  return  the  execution  as  not  satis- 
Ued,  wliioii  was  done,  but  not  until  a  levy  had 
been  made  on  defendant's  goods.  Plaintiff  then 
issued  a  second  execution,  correctly,  following 
the  judgment,  and  untler  the  second  execution 
the  goods  were  sold. 

Defendant  applied  to  set  aside  the  first  and 
second  executions  and  all  proceedings  of  the 
Sheriff  thereunder,  and  an  application  was  made 
on  beiialf  of  plaintiff  to  revive  and  renew  the 
first  execution. 

Held,  that  the  first  execution  being  irregular, 
and  not  such  an  execution  as  when  returned 
satisfied,  would  be  a  bar  to  any  future  claim 
for  the  amount  of  the  judgment,  and  so  protect 
the  defendant  as  well  as  serve  the  plaintiff,  it 
could  not  interfere  with  the  issue  of  an  effective 
execution,  or  justify  the  setting  aside  of  the 


execution  last  issued,  which  answered  the  pur- 
pose of  both  parties. 

Costs  were  refused  to  plaintiff,  though  suc- 
cessful in  resisting  the  main  application,  as  it 
was  through  his  default  in  irregularly  issuing 
the  first  execution  that  the  difficulty  arose. 
McDouijall  et  al.  v.  Griffin,  7  R.  &  (••,  254  j 

7  C.  L.  T.,  347. 

8.  Execution,  irregular— Justification  of 

constable  —  An  execution  was  issued  by  two 
Magistrates  on  a  judgment  after  the  amount 
sued  for  had  been  paid  to  the  judgment  creditor, 
and  subsequent  to  the  death  of  the  creditor. 

Held,  that  iiotwitiistanding  these  facts,  the 
constables  to  whom  the  execution  was  directed, 
were  justified  in  levying  and  selling  thereunder. 
A  mere  notice  from  any  body  of  an  alleged 
defect  in  an  execution  is  not  sufficient  to  arrest 
u  sale  by  the  constable. 

McPhail  v.  McKinnon  et  al.,  1  N.  S.  D.,  168. 

9.  Execution  within  six  years  -EflTect  of— 

Appointment  of  Bailiff  discharges  Sheriff — 
Where  a  first  execution  is  sued  out  within  six 
years  of  judgment,  it  is  not  necessary  to  issue 
the  next  execution  within  six  years  from  tlie 
issuing  of  the  one  last  previously  issued. 

The  appointment  of  a  special  I>eputy  or  Bailiff 
by  a  party  to  a  suit  discharges  the  Sheriff  from 
all  responsibility. 

Cochran  v.  Bell,  3  N.  S.  D.,  488. 

10.  Execution  without  positlTe  instruc< 

tions  to  levy — Attachment. — An  execution  had 
been  in  the  Sheriff's  hands  a  little  before  an 
attachment,  but  he  did  not  receive  positive  dir- 
ections to  levy  immediately  under  the  execution, 
but  under  the  attachment  he  did. 

Held,  that  this  execution  did  not  bind  perso- 
nal property  against  the  attachment. 

Mitchell  V.  Raymur,  3  Murd.  Epit.,  235. 

11.  Grass  growing  cannot  be  seized  under 

execution — (Jrass  still  growing  and  not  yet  cut 
does  not  come  under  the  description  of  goods 
and  chattels  and  cannot  be  seized  and  sold  under 
execution. 

Late  V.  McLean  etal.,2  N.  S.  D.,  69. 

12.  Indigent  Debtors'  Act  -  Fraud  In  re< 

spect  of  delay  of  payment  and  the  disposition 
of  property  —  Execution  continues  in  force 
until  payment  of  the  debt  or  the  discharge  of 
the  debtor  under  the  Act,  or  a  valid  order 
for  imprisonment  for  fraud — Application  was 
made  to  the  Judge  of  the  County  Court  for  the 
discharge  of  an  insolvent  debtor  under  chapter 
118  of  Revised  Statutes  (5th  series.)    The  appli- 


659 


EXECUTION. 


3G0 


cation  was  refused  on  the  ground  that  the 
debtor  had  been  guilty  of  fraud  in  respect  of 
delay  of  payment  and  the  disposal  of  his  pro- 
perty, and  the  learned  Judge  made  an  order 
directing  that  he  bo  confined  in  jail  for  a  period 
of  six  months.  This  order  was  made  on  Satur- 
day the  '23rd  day  of  January,  1886,  but  was 
inadvertently  dated  as  of  the  24th  (Sunday.) 
The  mistake  being  discovered  the  learned  Judge 
on  Monday  the  'Joth  made  a  further  order  con- 
firming the  firbt  order  and  directing  that  the 
debtor  be  confined  in  jail  for  a  period  of  six 
monthi)  from  the  23rd  of  January  for  such  fraud. 

Application  was  thereupon  made  to  the  Court 
for  the  discharge  of  the  debtor  under  a  writ  of 
habeas  rorpiiii  on  the  ground  that  he  was  illegally 
detained,  the  imprisonment  under  the  execution 
having  detcrniineil  when  tiie  orders  were  made 
by  the  County  Court  Judge  in  respect  to  the 
imprisonment  for  fraud  and  such  orders  being 
bad. 

II(hl,  that  the  prisoner  was  not  entitled  to 
the  relief  sought,  the  execution  under  which  he 
was  imprisoned  continuing  in  force  until  he  was 
released  by  the  creditor,  or  until  the  making  of 
a  valid  order  for  his  discharge  under  the  Act,  or 
for  his  further  imprisonment  for  fraud. 

//eld,  aliio,  thot  the  writ  of  halHOS  corpitu 
should  have  been  directed  to  the  Sheriff  and  not 
to  tile  jailor. 

Weatherbe,  J.,  (lisMeiitiiii/. 

lie  G.  Ji.  Johnston,  7  R.  &  0.,  51  ; 
7C.  L.  T.,90. 

Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada,  but  without  costs. 

Cas.  Digest,  386  &  540. 

13.  Indorsement  or  writ  of— 

Semhle,  it  is  not  necessary  that  there  should 
be  an  indorsement  on  the  writ  of  execution  of 
the  mode  in  which  it  is  to  be  executed. 

Sutherland  v.  IFAifWcH,  2  Thorn.,  410. 

14.  Insolvency— Suit  commenced  before 

assignment — Plea  inm  darrein  continuance — 
Execution — Plaintiff  recovered  judgment  against 
defendant  after  plea  pui»  darrein  continuance  of 
composition  and  discharge  under  the  Insolvent 
Act  of  1869,  the  suit  having  been  commenced 
before  the  assignment  of  defendant  under  the 
Act.  The  discharge  was  confirmed  after  plea 
and  before  trial,  but  does  not  appear  to  have 
been  brought  to  the  notice  of  the  Court  in  any 
way  at  the  trial.  On  motion  to  set  aside  execu- 
tion on  the  judgment. 

Held,  that  the  defendant  must  have  the  ad- 
vantage of  the  general  provisions  of  the  law  in 
his  favor,  which  cancelled  the  original  indebted- 


ness, and  that  the  execution  and  proceedings 
thereunder  must  be  set  aside. 

Wal/nce  v.  Bosxom,  2  R.  &  C,  419. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  Strong,  J.  (di-i.tentim/),  that  the  rule  or 
order  of  the  Court  below  was  one  from  which  an 
appeal  would  lie. 

2.  Reversing  the  judgment  below,  that  de- 
fendant having  neglected  to  plead  his  disL-liiirije 
before  judgment,  as  he  might  have  done,  was 
estopped  from  setting  it  up  afterwards  to  dofoiit 
the  execution. 

n'al/ace  v.  Bossom,  2  S.  C.  R.,  48S. 

15.  Insolvent  debtor— Execution  against, 

after  discharge— Fraudulently  assigned  goods 
—  The  insertion  of  the  usual  (•«///«■<  ad  ■-atln- 
facieiidum  clause  will  not  vitiate  an  execution 
against  a  party  who  has  been  discharged  from 
custody  as  an  insolvent  debtor. 

The  language  of  the  Insolvent  Debtors'  Ai;t  of 
1846,  which  permitted  a  plaintiff  to  take  under 
execution  property  subsequently  acquired  by  tlie 
insolvent,  held  not  to  restrain  a  plaintiff  from 
taking  under  execution  goods  fraudulently  its- 
signed  by  the  insolvent  previous  to  his  discluirge 

under  the  Act. 

Falconer  v.  Sawyer,  James,  277. 

16.  Judgment— Interest  on— Instructions 

to  Sheriff — Xo  claim  for  interest  ari.ses  ui)on 
tt  recorded  judgment  until  lands  are  actually  sold 
under  execution  and  there  is  a  surplus  after  jmy- 
ing  the  debt  and  costs. 

In  instructing  a  Sheriff  to  levy  an  execution  it 
is  irregidar  to  direct  him  to  levy  for  interest  on 
the  amount  of  judgment. 

Fleiijer  v.  Taylor,  James,  1.'17. 

17.  Judgment  more  than  twenty  years 

old — To  entitle  a  party  to  issue  an  execution  on 
a  judgment  more  than  20  years  old,  there  nnist 
have  been  an  execution  regularly  issued  and  re- 
turned within  a  year  after  judgment. 

White  V.  /)imor/l-,  2Thom.,  2.U 
See  5th  R.  S.,  c.  104,  0.  xl.,  R.  23. 

18.  Judgment  recorded  in  lifetime  of 

deceased— Estate  declared  insolvent  in  Pro- 
bate Court  —  Execution  may  issue  and  be 
extended  on  land  bound  by  it — Balance  due 
on  may  be  claimed  out  of  personal  assets— 3rd 
R.  S.,  c.  127,  s.  70— Cf.  5th  R  S„  c.  100,  s.  72- 
Where  a  judgment  has  been  duly  recorded  in 
the  life  time  of  a  deceased  party,  and  his  estate 
has  been  declared  insolvent  by  the  Probate 
Court,  an  execution  may,  nevertheless,  be  issued 
on  such  judgment,  on  a  proper  suggestion  of  the 


661 


EXECUTION. 


562 


facts  on  the  record,  uga'nst  his  executor  or 
administrator,  but  can  be  extended  only  on  the 
land  liound  by  such  ju<lgnient. 

If  any  l)alance  remain  due  to  such  judgment 
creditor,  after  a  sale  of  the  iand  under  sucli 
execution,  he  is  entitled  to  claim  therefor  out 
of  the  personal  assets  of  the  deceased,  under  the 
pn)''isions  of  section  70  of  the  Probate  Act, 
(3rd  Rev.  Statutes,  c.  127). 

Bnrrotves  v.  Imior,  1  Old,,  (38(J. 

19.  Landlord's  Hen  for  rent-Meaning  of 

"Execution  "  in  4th  R.  S.,  c.  107,  s.  7— Cf.  5tli 
R.  S.,  c.  125,  8.  14— Does  not  include  attach- 
ment—Section 7  of  chap.  107  Revised  Statutes 
(4th  scries),  providing  that  no  goods  shall  be 
removed  from  the  premises  under  execution, 
until  one  year's  rent  or  a  ratable  part  thereof 
he  jKiid  to  the  landlord,  does  not  apply  to  goods 
taken  under  attachment  under  the  Absconding 
Debtor's  Act. 

^fiUer  V.  Liwj,  4  R.  &  «.,  135. 

But  xfie  oth  R.  S.,  c.  I'J."),  s.  14,  which  corre- 
sponds with  4th  R.  S.,  c.  107,  s.  7.  The  woril 
"attachment"  has  been  there  specially  inserted. 

20.  Levy  cannot  be  set  aside  where  exe- 
cution and  judgment  unassailed — This  was  uii 
apphcutiou  to  set  aside  a  levy  made  under  an 
execution  issued  out  of  the  Supreme  Court, 
reciting  a  judgment  obtained  and  otherwise  in 
the  usual  form. 

A  rule  nisi  for  the  purpose  had  been  obtained 
at  Amherst  in  June,  1874,  but  on  iiearing  the 
affidavit  read  upon  which  the  rule  nimi  was 
granted,  the  'iifficulty  presented  itself  how,  as 
the  Sheriff  to  whom  the  writ  was  directed  was 
a  mere  mini'.terial  officer  and  bound  to  execute 
the  Queen's  writ,  as  commanded,  at  his  peril, 
the  Court  could  interfere  in  this  summary  way, 
or  take  cognizance  of  any  fact  presented  on 
affidavits  controverting  one  of  its  records.  The 
judgment  upon  which  the  execution  issued  was 
not  attacked  by  the  rule  7ii,ii,  neither  was  the  ex- 
ecution itself,  but  merely  the  levy.  It  must, 
therefore,  be  assumed  that  everything  prior  to 
the  levy  was  right,  for  no  affidavit  can  be  per- 
mitted to  contradict  a  record  of  the  Court,  un- 
less where  fraud,  or  perhaps  mistake,  is  alleged. 

And  if  the  judgment,  were  irregularly  signed, 
the  summons,  says  Ch.  Aroh.  987,  should  specify 
the  irregularity  complained  of,  and  the  defend- 
ant will  not  be  allowed  to  go  into  any  matter 
not  so  specifietl.  No  precedent,  authorizing  a 
rule  to  set  aside  a  levy  of  a  Sheriff,  leaving  the 
judgment  and  execution  intact  and  unimpaired 
can  be  found.  And  it  is  laid  down  (Ch.  Arch. 
641)  that  although  the  writ  be  irregular,  yet 


I  unless  it  be  set  aside,  the  party  at  whoso  suit 
j  it  issued,  or  his  attorney,  may  justify  under  it. 
I  If  there  be  no  writ,  or  a  bad  writ,  trespass  lies. 
I  (2  W.  Bl.  1190.)     Under  a  rule  jiini,  to  set  aside 

a  levy  merely,  it  would  be  most  imsafe,  and 

without  precedent,  to  investigate  the  merits  of 
;  a  judgment  recited  in  the  Irody  of  the  execution. 

If  such  a  precedent  were  once  established,  it 

would  supersede  tije  necessity  of  applying  for 
I  netv  trials,  or  giving  lionds  or  security  in  the 
I  usual  and  accustomed  way.     It  would  introduce 

a  practice  fraught  witli  danger  and  difficulty. 

If  the  defendant  has  a  grievance  he  has  niis- 
;  taken   the  means  of  remedying  it.      The   rule 

tii.ii  should  be  discharged  witii  costs. 

Kimjky  v.  Smith,  iinrfjtorlrd, 

delivered  Jan.  IS,  1S74- 


I  21.  Le>7-4thK.8.,c.97  8.5-t'r.5thR.S., 
c.  104,  O.  46,  R.  4 — Levy  under  the  attachment 
under  4th  R.  S.,  c.  97,  s.  "i,  may  be  made  before 
service  on  the  agent. 

The  levy  is  effectual  from  the  time  of  seizing 
the  property  and  not  merely  after  aj)praisemcnt 
and  selection  of  the  property  to  be  held  to  re- 
spond the  judgment. 

The  Merchaiitu'  Bank  v.  The  Steel  Co.  of  Canada 
(Limited),  "i  R.  &  (!.,  258. 

The  question  settled  by  the  latter  part  of  the 
above  decision  arose  from  the  peculiar  wording 
of  4th  R.  S.,  c.  97,  s.  5,  which  has  been  changed 
in  5th  R.  S.,  c.  104,  0.  46,  R.  4. 


22.    levy  under  execution  on  goods  in 

posseasion  of  a  third  party  under  lease — 
Sale  under  levy  will  not  pass  goods — M.  having 
been  arrested  under  a  writ  of  capias  issued  at 
the  instance  of  the  plaintiff  out  of  the  Justices' 
Court,  gave  a  confession  of  judgment  for  the 
amount  claimed  and  cotts,  upon  which  judgment 
was  entered  and  execution  issued.  After  the 
giving  of  the  confession  and  entry  of  the  judg- 
ment, but  before  the  issue  of  the  execution,  M, 
was  released  from  arrest  by  plaintiff.  Certain 
goods  of  M.,  I  'der  lease  for  an  unexpired  term, 
were  sold  under  the  execution,  after  having  been 
levied  upon  and  returned  to  the  lessees.  On  the 
same  day  that  M.  was  released  from  arrest  he 
gave  a  bill  of  sale  of  the  goods  to  C,  who  sold  to 
defendant.  Plaintiff  having  claimed  the  goods, 
after  the  expiry  of  the  lease,  under  the  levy  and 
sale, 

Held,  that  the  voluntary  discharge  of  M.  by 
plaintiff  operated  as  a  discharge  of  the  judgment 
and  that  no  execution  could  issue  subsequently. 

Also,  that  even  if  the  discharg  of  M.  did  not 
operate  as  a  discharge  of  the  judgment,  the  sale 


563 


EXECUTORS  AND  ADMINISTRATORS. 


664 


of  goods,  wliicli  at  the  time  were  in  the  legal 
posBession  of  anotlier,  and  not  subject  to  levy, 
wriB  unauthorised  and  would  not  pass  title. 

Fra.ter  v.  Jenkinx,  20  N.  S.  R., 
(8  R.  &  (!.),  494. 

23.    Levy  on  gold  taken  out  of  mine  in 

which  defendant  haa  a  share  under  parol 
agreement — Equitable  powers  of  Court — Plain- 
tiff made  an  oral  agreement  with  (J.  the  owner 
of  a  gold  claim,  to  work  a  portion  of  the  claim, 
plaintiff  receiving  two  thirds  of  the  profits 
after  paying  all  expenses.  Defendant,  acting 
as  Slieriff  of  the  County  of  Hants,  levied  upon 
and  sold  certain  gold  taken  out  of  the  mine  by 
plaintiff,  on  an  execution  against  G.  Plaintiff 
having  brought  trover  for  the  gold  so  taken  and 
a  verdict  having  pa.ised  in  his  favor, 

ITe/d  (1),  that  uniler  the  agreement  to  work 
the  mine  for  a  share  of  the  profits,  no  interest  in 
the  mine  was  transferred  to  plaintiff  within  the 
meaning  of  sec.  4  of  the  .Statute  of  Frauds. 

(2.)  That  the  Slieriff  should  have  sold  only 
the  execution  debtor's  share,  leaving  tlie  pur- 
chaser to  settle  with  the  plaintiff. 

(3.)  That  though  the  verdict  for  plaintiff 
might  be  set  aside  and  a  new  trial  ordered,  it 
not  appearing  that  the  defendant  by  tlie  sale 
put  it  out  of  tlie  plaintitFs  power  to  take  the 
property  or  pursue  his  remedy  against  the  pur- 
chaser, yet  the  plaintiff  liaving  an  undoubted 
right  to  a  share,  if  not  the  whole  of  the  gold, 
under  the  equitable  powers  of  the  Court,  it 
ought  to  be  referred  to  a  Master  to  ascertain 
the  agreement  between  plaintiff  and  G.,  take 
an  account  of  the  expenses  of  working  the  mine, 
&c.,  and  report  the  balance,  if  any,  which  was 
due  by  the  plaintiff  to  G.  at  the  time  of  the  levy. 
The  question  of  costs  to  be  decided  after  the 
making  of  the  Master's  report. 

McDonald  v.  Geldert,  3  N.  S.  D.,  551. 


24.  LeTy— The  last  cow  cannot  be  taken 

on  an  execution  issued  out  of  the  Magistrates' 
Court. 

McLean  v.  IVatson  et  eU.,2  Thorn.,  406. 

25.  Payment  Into  Court  —  An  executor 

may  be  required  to  pay  funds  of  estate  into 
Court  in  certain  cases — An  executor  and  trus- 
tee who  has  by  his  pleas  admitted  that  he  has 
funds  of  the  testator's  estate  in  his  hands  may  be 
compelled,  at  the  suit  of  his  co-executor  and  co- 
trust«e,  on  sufficient  ground  shown,  to  pay  such 
funds  into  Court,  and  also  to  lodge  in  Court  all 
securities  representing  such  funds. 

Duuphy  el  al.  v.  Wallace,  1  Old.,  383. 


26.     Sheriff  not  ordered  to  pay  OTer 

money  collected  under,  where  conflicting 
claims — The  Court  will  not  grant  a  rule  iim  to 
compel  a  Sheriff  to  pay  over  moneys  coUecteil 
under  execution,  where  there  are  conflicting 
claims  to  the  fun<ls,  but  will  leave  the  parties 
to  tlieir  remedy  by  action. 

Scott  V.  Anrfw^,  James,  183. 


EXECTTORS  AXD  ADMINISTRATORS. 

1.  The  account  of  an  administrator  who 

\»  a  creditor  of  the  estate  must  be  filed  at  leant 
a  montli  before  distribution  of  tlie  estate. 

Eitatt  of  Catherine  McDonald,  James,  342. 

2.  Actions  by  and  against  — Set-off— The 

Court  threw  out  a  strong  opinion,  that  defend- 
ants could  not  set  up  as  a  defence  to  an  action 
by  a  surviving  executor,  that  they  had  agreed 
to  advance  certain  goods  to  the  deceased  exec- 
utor in  his  lifetime,  which  were  to  be  credited 
and  received  by  him  as  such  executor  in  pay- 
ment of  the  moneys  to  become  due  on  the 
bond  sued  on  ;  but  the  point  was  not  formally 
decided. 

Bath,  Executor,  v.  DennUon  et  al., 

3  R.  &  C,  .303. 

3.  Action  on  administrator's   bond  by 

Judge  of  Probate  —  Equitable  defence  —  An 
action  was  brought  at  common  lav  by  the  Judge 
of  Probate  against  an  administratrix  Jind  sure- 
ties, for  not  faithfully  administering.  The 
administratrix  made  default  and  the  sureties 
pleaded  an  equitable  defence  that  the  adminis- 
tratrix had,  with  the  knowledge  of  the  creditors 
at  whose  instance  the  suit  was  brought,  contin- 
ued trading,  instead  of  settling  the  estate  of  the 
intestate,  and  that  the  deficiency  of  assets  had 
resulted  from  such  trading.  The  jury  found  the 
issues  raised  by  this  plea  in  favor  of  the  defen- 
dants, and  the  cause  was  then  referred  to  the 
Equity  Court,  where  the  learned  Judge  held 
that  the  creditors  were  estopped  by  their  con- 
sent, and  a  decree  was  made  in  favor  of  the 
defendants,  with  costs. 

On  appeal  from  this  decree,  the  Court  held 
that  however  this  equitable  defence  might  avail 
against  the  creditors  so  assenting,  it  afforded  no 
answer  to  those,  if  any,  who  had  not  acquiesced. 
And  the  cause  was  referred  to  a  master,  to  as- 
certain whether  there  were  any  creditors  un- 
affected by  assent  or  knowledge  who  were 
entitled  to  administration. 

Sutherland  et  al.  v.  WiUon  et  al., 
2  R.  4G.,  354;  1  C.  L.  T.,  95. 


565 


EXECUTORS  AND  ADMINISTRATORS. 


566 


4.  Administration  granted  to  a  debtor 

of  (leceaaed— Asgociating  huaband  of  next  of 
kin  —  Revoking  letters  of  administration  — 

Tlie  .Iiulgo  o'  Probate  granted  administration  of 
till!  deceased  to  two  sisters  of  deceased  ami  one 
Shearer,  the  husband  of  one  of  the  sisters.  On 
petition  of  a  brotlier  of  deceased,  the  letters  of 
ailininistration  were  cancelled.  Among  the 
griiunda  f  ot  forth  in  the  petition  of  the  brother, 
■ttliich  resulted  in  the  cancellation,  it  was  al- 
leged that  the  petitioner  had  not  been  cited, 
and  that  Shearer  was  indebted  to  deceased  on 
nil  lit  gages  and  otherwise.  Other  ground.';  were 
get  forth  upon  which  no  evidence  was  adduced. 

JIiUI,  that  it  was  not  necessary  to  cite  the 
petitioner  when  the  administration  was  gi-.tiited 
to  the  next  of  kin  (of  whom  the  two  sisters  were 
a  majority),  and  that  there  was  nothing  to  pre- 
vent the  Judge  of  Probate,  in  his  discretion, 
from  appointing  a  mortgage  debtor  of  deceased, 
and  no  objection  to  associating  the  husband  of 
one  of  the  next  of  kin  in  the  administration  at 
their  retincst. 

Qnneri',  whether  the  Judge  can  revoke  letters 
of  administration  once  granted  for  any  reason 
other  than  those  mentioned  in  the  statute.  | 

In  re  Hatdy,  5  R.  &  O.,  375.  j 

5.  Administration,  letters  of— How  at-| 

tacked — To  an  action  of  replevin  brought  by  j 
plaintitTs  as  administrators  and  administratrix  \ 
of.l.  K.,  defendant  pleaded  among  other  pleas  j 
a  plea  that  the  letters  of  administration  were 
null  and  void,  as  having  lieen  granted  by  the 
Judge  of  Probate  for  the  County  of  Colchester^ 
whereas  J.  K.,  as  defendant  alleged,  at  the  time 
of  his  death  had  his  domicil  in  the  County  of 
Cumberland.     A  verdict  having  been  found  for 
plaintiffs,  defendant  moved  to  set  it  aside  on  the 
groinid  that  the  issue  raised  by  the  plea  above 
recited  was  not  submitted  to  the  jury. 

HM,  that  the  issue  was  properly  withheld. 
The  Judge  who  tried  the  case  was  not  at  liberty 
to  admit  any  evidence  to  impeach  the  validity 
of  tlie  letters  of  administration.  If  defendant 
wislied  to  attack  the  letters  of  administration 
his  proper  course  was  by  appeal  within  the 
time  prescribed  in  the  statute. 

Kerr  et  al.  v.  McLellan,  3  N.  S.  D.,  502. 

6.  €onTerslon  —  Unauthorized    sale    by 

widow  of  property  of  intestate— The  w  idow  of 
an  intestate  disposed  of  a  pair  of  oxen  belong- 
ing to  the  intestate's  estate  for  "a  barrel  of 
flour,  cash  and  other  things,"  and  applied  the 
proceeds  to  her  own  sustenance. 

Held,  in  an  action  of  trover  by  the  adminis- 
tratrix, that  the  buyer  should  have  known  from 


the  manner  of  the  sale  that  it  was  not  made  in 
due  course  of  administration  ;  that  there  was  no 
reasonable  ground  for  supposing  that  the  widow 
had  authority  to  sell ;  and  that  a  sale  for  such  a 
consideration  was  not  a  lawful  one,  or  such  as 
the  administratrix  would  have  been  bound  to 
perform  in  due  course  of  administration. 

Maker  v.  Huhl,y,  5  R.  &  O.,  '295. 

7.  Costs  — When  a  decree  of  a  Probate 

Court  is  reversed,  as  against  an  executor,  he  will 
not  in  ordinary  cases  be  subjected  personally  to 
costs. 

Estate  of  Catherine  McDonald,  James,  342. 

8.  Costs-Llabllilr  to  pay  costs  out  of  his 

own  pocket— To  make  an  administrator  liable 
to  pay  costs  out  of  his  own  pocket  the  notice 
reciuired  by  Acts  1853,  c.  12,  s.  10,  must  be 
given,  and  fraud  on  his  part  must  be  shown. 

In  re  Estate,  of  ItalMon,  2  Thom.,  195. 

0.    Deed  to-One  David  Archibald,  dying 

intestate  in  1822,  letters  of  administration  were 
duly  granted  to  Hugh  McDonald  and  William 
T.  Archibald,  and  under  proper  license  the 
intestate's  property  was  sold  in  1825,  at  public 
auction,  and  bought  by  James  McXab,  who,  on 
the  same  day,  re-conveyed  it  to  Hugh  McDon- 
ald, one  of  the  administrators,  who  subsequently 
conveyed  it  to  another,  and  after  various  trans- 
fers it,  in  1859,  came  into  the  possession  of 
defendant.  In  1863  the  heirs  at  law  of  the 
intestate  brought  ejectment  to  recover  the  pro- 
perty, alleging  that  the  deed  from  McNab  to 
McDonald  was  absolutely  void,  the  latter  being 
one  of  the  administrators,  and  that  therefore 
defendant  claiming  through  McDonald  had  no 
legal  title. 

Held,  that  although  undoubtedly  voidable  in 
equity,  the  conveyance  from  McNab  to  Mc- 
Donald was  valid  in  law,  and  that  a  verdict 
should  be  entered  for  defendant. 

McCurdy  et  al.  v.  McDaniel,  I  N.  S.  D.,  267. 

10.    Deed  to-Purchase  by— The  plalntlflT, 

as  administrator  to  Hugh  McLean,  sold  certain 
lands  at  public  auction  to  one  Harding,  giving 
him  a  deed  thereof,  and,  on  the  same  day, 
Harding  re-conveyed  the  lands  to  plaintiff. 
There  was  no  evidence  to  show  that  the  plain- 
tiff did  not  act  in  good  faith  and  for  the  benefit 
of  the  estate.  Plaintiff  brought  ejectment 
against  defendants,  who  were  brothers  of  Hugh 
McLean,  and  were  in  possession  of  the  prop- 
erty, and  they  resisted,  on  the  ground  of  his 
having  no  title,  contending  that  he  could  not 
acquire  title  through  himself  as  administrator. 


067 


EXECUTORS  AND  ADMINISTRATORS. 


66S 


Iltlil,  on  the  principle  of  McLiod  v.  OillieM 
etal.,\  N.  S.  1).,  2r)7,  that  phiintiff's  title  was 
valid  at  law. 

/imijth  V.  ^fcLMn  et  ul.,  1  N.  .S.  D.,  310. 

11.  Deeds  to  and  from  -  The  flittaer  of 

(Icfundants  tlicd  intcHtatc,  and  the  adininiMtra- 
tion  waH  taken  out  by  Donald  McLcod.  Pre- 
vious to  intestate's  deatli,  a  judgment  had  been 
reconlcd  against  iiiiii,  which  was  revived  against 
his  administrator,  and  the  real  estate  sold  there- 
under. At  tlie  sale,  the  administrator  pur- 
chased the  land,  and  8ubge(|Uently  executeil  a 
deed  of  it  to  the  plaintiff.  Previous  to  execut- 
ing this  deed,  tlie  administrator  obtained  a 
letter  of  license  to  sell  the  leal  estate,  un<ler 
which  the  same  lands  were  sold  and  bought  in 
by  plaintiff,  to  whom  the  administrator  gave  a 
deed.  The  consideration  expressed  in  the  deeds 
was  not  actually  paid  by  plaintiff.  Both  the 
deeds  to  him  bore  ilate  the  same  day  and  were 
recorded  the  same  day.  Piaintiti'  brought  eject- 
ment against  the  occupiers  of  the  property,  and 
they  defended  on  tiie  ground  that  plaintiff  had 
no  title,  as  he  claimed  through  the  administra- 
tor, who  was  debarred  by  the  relation  he  Iwre 
to  the  real  estate,  from  giving  any  title  to  it. 

//eld,  that  although  botli  deeds  could  be  set 
aside  in  equity,  on  application  of  the  heirs  or 
creditors,  yet,  until  they  were  set  aside,  the 
heirs  could  not  resist  a  recovery  in  ejectment, 
and  that  the  verdict  for  plaintiff  must  be  sus- 
tained. 

McLeod  v.  Gillien  etcd.,!  N.  S.  D.,  257. 

12.  Derise  to  executors  for  purpose  which 

fails — Personal  property  devised  to  exefUitors 
for  a  purpose  which  fails  must  be  distributed 
by  the  executors  among  the  next  of  kin. 

Entatc  of  Alexander  McDonald,  James,  123. 

13.  Evidence  in  action  against— 4th  R.  S., 

c.  96,  8.  41 — U.  nuide  a  mortgage  to  defendants' 
testator  to  secure  the  payment  of  three  promis- 
sory notes.  The  notes  were  paid,  and  handed 
over  to  D. ,  upwards  of  twenty  years  before  this 
action  was  brought  by  D. ,  to  compel  defendants 
to  execute  a  release  of  the  mortgage.  During 
the  subsequent  period  no  payments  were  made 
by  D.  or  demanded  of  him,  and  the  estate  of 
testator  was  settled  without  any  reference  to 
the  mortgage  as  an  outstanding  debt  due  the 
estate.  After  bringing  the  action,  D.  became 
insolvent,  and  made  an  assignment  under  the 
Insolvent  Act,  and  his  assignee  intervening,  un- 
der an  order  of  the  Court,  became  plaintifif  in 
the  suit. 

Held,  that  defendants  must  be  decreed  to  exe- 
cute a  release  of  the  mortgage,  though  without 


costs,  they  not  having  opposed  the  procccdingo 
of  plaintiff. 

Htld,  also,  that  D.,  not  l)eing  a  party  to  tlie 
suit  when  evidence  was  taken,  was  not  preven- 
ted by  section  41  of  c.  96,  4th  R.  S.,  from  giving 
evidence  of  transact  i(ms  with  defendants'  testa- 
tor, deceased. 

Bell,  Ainiijne.e,  v.  Brown  et  al.,  R.  K.  D.,  20. 

14.  Evidence  produced  against— 4th  R. 

S.,  c.  96.,  B.  41,  same  as  6th  R.  S.,  c.  107,  s.  16 

I  — The  agent  of  a  Life  Insurance  Company  is  not 
competent  to  give  evidence  on  behalf  of  such 
j  company  of  any  statements  or  acknowledgi.ients 
I  of  the  deceased  insured  in  an  action  by  his  exc- 
'  cutor  or  administrator  against  such  company, 
I  under  4th  Uev.  .Stats.,  c.  96,  s.  41. 
i      Wilkins,  J.,  diKxenliun. 

O'Doundl  V.  Confederation  Life  Inn.  Co., 

\  2H.  &c.,5:o. 

I      Reversed  on  appeal  to  the  .Supreme  Court  of 
Canada. 
I  Civs.  Digest,  208. 

15.  Evidence  produced  against  — 4th  R. 

S.,  c.  96,  8.  41,  same  as  5th  R.  S.,  c.  107,  s.  16. 
— The  proviso  in  section  41,  c.  96,  Rev.  .Stats. 
(4th  series),  "Of  witnesses  and  evidence,"  ap- 
plies to  evidence  tendered  in  causes  where  the 
:  executors  or  administrators  have  become  jjarties 
by  suggestion,  after  the  death  of  the  original 
j  party;  the  word  "brought"  in  said  proviso  be- 
ing construed  with  the  word  "  evidence,"  ininic- 
I  diately   preceding,   and    not   with    the  words, 
!  "action  or  other  proceeding." 
Wilkins,  J.,  dlssfiitiny, 

Chenky  V.  Murdoch  et  al.,  2  R.  k  C,  .321. 
Affirmed  on  appeal  to  the  Supreme  Court  of 

Canada. 

2S.  C.  R.,  48. 

16.  Executor  bound  by  settlement  made 

by  co-executor — R.  H.  Bath  died  at  Bridge- 
town, having  appointed  Joseph  Wheelock  his 
executor.  His  widow  afterward  died,  having 
appointed  J.  C.  Troop  and  Fletcher  Bath  her 
executors  and  trustees,  to  carry  out  certain 
directions  contained  in  the  will.  The  executors 
of  Mrs.  Bath  in  April,  1875,  cited  the  executors 
of  R.  H.  Bath  to  appear  in  the  Pi obate  Court  for 
the  purpose  of  a  final  settlement  of  R.  H.  Bitth's 
estate,  when  it  appeared  to  the  Judge  of  Pro- 
bate that  a  settlement  had  been  made  by  the 
executor  of  R.  H.  Bath  and  concurred  in  by 
Troop,  OS  executor  of  Mrs.  Bat,h  («ee  2  R.  &  C, 
403),  and  he  decreed  accordingly. 

On  reference  to  a  master,  further  evidence  was 
presented  upon  this  point,  and  the  master  re- 


£69 


EXECUTORS  AND  ADMINISTRATORS. 


570 


ported  that  such  sottlemunt  Imd  bcon  conuurreil 
in  l)y  Tro'.p. 

//«;//',  that  this  scttlunient  procluiluil  the  co- 


iiig  tluit  T.  J.  W,,  being  a  jtrinoipal  creditor 
ami  tile  Hrst  npplioaiit  watt  leyally  entitled  to 
adniiiiiNtratioii  in  default  of  ucceptanue  by  the 


exec'itor  and  ce.«^ui.'<  rjue  <n(^/en<  from  opening  up  I  (Mrtiea  primarily  entitled,  and  tliat  it  was  in- 
the  eHtate  thus  Hcttled,  as  at  the  timuof  tlie  set-  ounibent  on  the  Judge  of  Probate  to  have 
tleinenl  Troop  was  acting  as  an  executor,  and  '  appointeil  him. 


not  in  the  cliaractei'  >{  a  trustee,  which  hud  not 
yet  attiiclied. 

In  re  Estate  of  Bath,  3  R.  &  C,  004. 

17.    Grant  of  administration— Discretion 

of  Judge  of  Probate— 'I'lie  granting  of  admiu- 


I'l.f  •lolinMlone,  K.  J. — 'I'iie  Court  lieing  ei|ual- 
ly  divided,  the  judgment  appealed  against  nuist 
stand. 

//(  n,  Entatt  Sojihia  Braim ,  1  X,  S.  1).,  .'{DO. 

10.  Inventory  -Power  to  order  additional 

iatration  ik  honU  non  to  "the  widow  of  the  items  to  be  inserted— 'J'lie  Judge  of  I'robalo 
deceased  was  appealed  from  by  his  .laughter,  on  '"''*  "'«  P"wer,  after  hearing  evidence  on  the 
the  ground  tha^  tiie  administratrix  iui.l  been  f'^^'l-*'  I"  •"''«'■  '"'  '-'xecutor  or  administrator 
guilty  of  waste  on  the  lands  set  otF  to  her  as  t"  iiH'l'i'l'-'  '"  tlie  inventory,  as  property  of 
dower.  It  appeared  fiom  respondent's  allidavit,  'deceased,  articles  claimed  by  other  parties,  but 
that,  whether  her  acts  amounted  to  waste  or  •'"  eannot  re.iuire  the  executor  or  administrator 
not,  she  considered  herself  justified  in  the  course  to  swear  to  an  inventory  thus  amended  by 
she  had  pursued.  •''**  '"''''-■'•• 

IIM,  that  as  there  was  nothing  to  indicate  '^-^'f'"'^'  t''<^  "'sts  of  tlie  proceedings  on  citation 
sucli  dishonesty  on  the  i)art  of  the  widow  as  to  render  an  account  can  Ije  allowed  against  an 
slioiild  preclude  her  from  all  right  to  the  a.lmin-  ,  administrator  personally,  the  notice  re.iuired  by 
istration,  tlie  Court  couhl  not  c.mtrol  the  dis-  '  auction  1(»,  chapter  l-J,  of  Acts  of  lS.-);{,  must  be 
creti.m  conferred  by  the  act  on  the  Judge  of  K'^'^^"-  """•  ''^'  '»"«t  appear  from  the  evidence  to 
Probate.  have  acted  fraudulently. 

In  re  Eitali:  of  Hoop,  R.  K.  1).,  IG'J.  !  /"  rt  E^tatt  of  lkll^ton,  '2  Tliom.,  lO.'j. 


18.    Grant  of  Administration  —  Discretion 

of  Judge  of  Probate — T.  J.  \V.,  a  barrister, 
claiming  to  be  a  principal  creditor  of  Mrs.  H., 
who  died  intestate,  applied,  by  petition  to  the 
Jud^e  of  Probate,  praying  for  letters  of  admin- 
istration on  her  estate.  A  citation  was  there- 
upon issued  and  published  calling  upcm  the 
creditors,  next  of  kin,  and  parties  interested  in 
the  estate  to  appear  and  shew  i'ausc,  if  any, 
why  administration  should  not  be  granted  as 
prayed.  On  the  day  appointed  a  petition  was 
presented  on  behalf  of  a  number  of  persons 
cliiiining  to  be  creditors  of  the  deceased,  praying 
that  administration  be  granted  to  \V.  K.,  also  a 
creditor,  but  only  to  a  small  amount,  claiming 
that  the  appointment  of  T.  J.  \V.  would  be 
prejudicial  to  their  interests.  The  Judge  of  Pro- 
bate made  a  decree  granting  the  prayer  of  tlie 
latter  petition  on  the  ground  that  a  majority 
of  the  creditors  of  the  intestate  had  joined  in  it, 
and  that  the  amounts  of  their  claims  largely  ex- 
ceeded that  of  the  first  petitioner.  From  this 
decree  an  appeal  was  taken  to  the  Judge  in 
Equity,  by  whom  the  decree  of  the  Judge  of 
Probate  was  affirn;ed.  From  this  decision  a 
further  appeal  was  taken  to  the  full  Court, 
which  was  equally  divided  in  opinion,  Johnstone, 
E.  J.,  and  Dodd,  J.,  holding  that  the  appoint- 
ment was  discretionary  with  the  Judge  of  Pro- 
bate, and  DesBarres  and  Wilkius,   JJ.,   hold- 


20.  Judgment  recorded  In   Iiretime  of 

deceased — Estate  declared  insolvent  in  Pro- 
bate Court  —  Execution  against  executor  or 
administrator— Balance  due  after  sale  of  land 
may  be  claimed  out  of  personal  assets— 3fd 
R.  S.,  c.  127,  a.  70  —of.  5th  R.  S.,  c.  100,  s.  72 
— Where  a  judgment  has  been  duly  recorded  in 
the  lifetime  of  a  deceased  party,  and  his  estate 
has  been  declared  insolvent  by  the  I'robate 
Court,  an  execution  may  nevertheless  be  issued 
on  such  judgment,  on  a  proper  suggestion  of  the 
facts  on  the  record,  against  his  executor  or 
administrator,  but  can  be  extended  only  on  the 
land  bound  by  such  judgment. 

If  any  balance  remains  due  to  such  judgment 
creditor,  after  a  sale  of  the  land  under  such  exe- 
cution, he  is  entitled  to  claim  therefor  out  of 
tl'.e  personal  assets  of  the  deceased,  under  the 
provisions  of  the  Probate  Act,  3rd  Rev.  fStats., 
c.  127,  s.  70,  (same  as  5th  Rev.  Stats.,  c.  100, 
s.  7-2. 

Burrowes  v.  Isnor,  1  Old.,  686. 

21.  Legacy— Common  law  action  for— 

Held,  that  an  action  would  lie  at  common  law 
against  one  of  the  executors  of  a  will  containing 
the  following  bequest :  "  I  give  and  bequeath  to 
my  wife  Elizabeth,  a  decent,  suitable  and  com- 
fortable maintenance,  to  be  furnished  and  pro- 
vided for  her  by  my  son,  Elisha  Ells,  hereinafter 


671 


EXECUTORS  AND  ADMINISTRATORS. 


/S7? 


ilirecti!(l."  Thcro  was  a  Htibavqiiviit  hcciuvHt  and 
(luvittv  of  111!  rcHidiiL'  of  purHonal  iind  rt'iil  cMtatu 
to  KHnIiu,  oliargi'il  with  tliat  )i4M|iii'i<t.  Kliitliu  and 
Jonathan  KlU  were  appointc'd  exi'cutors.  Action 
againwt  KiiHiia. 

An  ai:ti(in  for  a  certain  legacy  can  bo  main- 
tained in  Coininon  Law  (\iiirtH  ugainKl  any  per- 
son, wlio,  under  a  will,  is  made  lialilu  to  pay 
BUcli  legacy,  anil  receives  under  such  will,  funds 
sutlicient  to  ]>ay  it. 

Eli-  V.  ElU,  1  Thoni.,  ('ind  Kd.),  17.3. 

'22.    Letters  of  Probate  —  Executor  nof 

liable  for  moneys  paid,  though  will  afterwards 
get  aside-  Notice  of  application  to  set  aside 
will — Defendant  was  appointed  executor  under 
a  will  which  after  he  had  ohtainetl  proliate  and 
had  collected  debts,  paid  legacies,  &c.,  was  set 
aside  for  want  of  due  execution. 

Ill  Id,  that  the  granting  of  probate  was  a  suf- 
ficient defence  to  an  action  brought  by  the  ad- 
ministrators to  recover  the  moneys  paid. 

Alf'O,  that  plaintitls'  case  was  not  strength- 
ened by  the  fact  that  defendant  l)efore  paying 
the  legacies  had  notice  that  the  will  would  be 
attacked  upon  another  ground  than  that  upon 
which  it  was  set  aside. 

Randall  tt  at.  v.  Delap,  0  R.  &  G.,  106  ; 
«  C.  L.  T.,  144. 

23.  License  to  sell— Whether  creditor  can 

obtain  grant  of-2nd  R.  S.,  c.  130  ss.  13  &  17 
—of.  5th  R.  S.,  c.  100  88.  26  &  30— 

Per  Young,  C.  J.  and  Dodd,  J. — The  grant- 
ing of  a  license  for  the  sale  of  real  estate  under 
2nd  R.  S.,  c.  130  ss.  13  &  17,  is  discretionary 
with  the  Court  of  Probate,  and  that  discretion 
was  rightly  exercised  in  the  present  instance, 
by  the  refusal  of  such  license.  The  application 
for  license  was  made  by  assignees  of  judgment 
creditors  of  the  intestate. 

Per  DesBarres  and  Wilkins,  J  J. — The  Court 
of  Probate  had  no  power  whatever  to  grant 
license  to  sell  on  such  an  application. 

In  re  Estate  of  0' Sullivan,  1  Old.,  549. 

24.  Objection  that  administratrix  cannot 

bring  ejectment — Must  be  taken  before  trial 
— An  objection  that  administratrix  cannot  bring 
ejectment,  or  that  infants  should  have  sued  by 
their  next  friend,  should  be  made  before  trial. 
McRae  el  al.  v.  McRae,  Cochran,  76. 

25.  Order  for  sale  of  lands  made  by 

Governor  in  Council  —  How  attacked  —  John 
McDonald,  the  owner  of  certain  real  estate,  died 
insolvent,  having  appointed  four  executors,  took 
out  Probate  and  obtained  an  order  from  the 


Ciovcrnor  in  Council  for  the  sale  of  the  landi, 
under  which  the  lands  were  s(dd  to  Chisholni. 

lltlil,  that  altiiough  the  other  two  executors 
had  not  renounced,  and  the  two  wiio  acted  lunlcr 
the  order  had  not  given  the  security  rei|uinil  liy 
Statutt;,  yet  the  order  could  not  be  impugneil  hy 
this  Cour 

Halliburton,  C  .1.,  dinxi'iitimj. 
Chixholm  V.  McDonald  tt  al,,  2  Thom.,  ;jb7. 

2ff.    Personal  contract  terminated  by 

death  of  either  party— Tiie  plaintiff,  by  ugriu. 
ment  imder  seal,  contracted  to  •  erve  the  testiilnr 
in  tiie  business  of  bookseller  and  stationer,  a»  \w 
siiould  direct,  for  a  term  of  three  years,  diily 
two  of  which  had  expired  at  testator's  deiitli. 
It  was  also  agreed  that  testator  should  pay  tiio 
plaintiff,  in  consideration  of  such  services,  a 
lixeii  yearly  salary  ;  but  no  mention  was  iiiiule 
in  the  agreement  of  the  personal  representative 
of  either  party,  nor  any  provision  made  therein 
in  case  of  the  death  of  cither  party  before  the 
expiration  of  the  term. 

The  testator  by  his  will  directed  his  executors 
(the  defendants),  on  his  decease,  to  dismiss  tlie 
plaintiff,  which  they  accordingly  did. 

Held,  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  plaintiff  for  his  ills- 
missal,  nor  for  the  insertion  in  the  will  by  the 
testator  of  the  clause  directing  it. 

Grant  v.  Johnnon  et  al.,  1  Old.,  493. 

27.  RemoTal  of  executor  —  Suit  for  — 

Interlocutory  order  to  compel  executor  to  pay 
into  Court  the  proceeds  of  sales  in  a  suit  brought 
to  remove  the  executor  from  office,  refused,  tiie 
affidavits  on  which  it  was  founded  being  an- 
swered in  every  essential  particular. 

Smithers  et  al.  v.  Smithers,  R.  E.  D.,  483. 

28.  Submission  and  award— No  estoppel 

between  other  parties — The  surviving  executor 
cited  the  parties  interested  in  the  estate  of  the 
deceased  to  attend  for  the  purpose  of  a  final  set- 
tlement, and  a  preliminary  question  was  raised 
as  to  whether  all  matters  in  dispute  had  not 
been  settled  by  an  award.  The  award  in  ques- 
tion resulted  from  a  submission  to  whicli  the 
executor  and  executrix  alone  were  parties  and 
recited  differences  between  those  parties  only. 
It  appeared  that  other  parties  than  those  were 
interested  in  the  estate,  viz.,  the  children  and 
the  creditors  of  the  testator. 

Held,  that  whether  the  parties  to  the  submis- 
sion were  or  were  not  estopped,  as  there  were 
other  parties  interested,  the  Judge  of  Probate 


bVi 


FEME  COVERT. 


574, 


ihoultl  have  overrule*!  the  ptcliininury  ulijuction  I 
liiiil  (li'i'iik'il  u[K)n  tliu  evidence  independi-ntly  of 
tlie  HuliiniHiiDii.  { 

In  n  i^.^tatt  0/  ihorye  Smithen,  'A  R.  A  (}.,  3(Kl ;  j 

•-'t'.  L.  T.,00«.  ] 

'20.   Substitution  of  executor  -  Practice  — 

Wliiri!  Hniiie  (if  severiil  fo-cxi'cutorH  apply  to  lie  | 

ri'U'iiMt'(l  friiiii  the  tniHt,  the  Court  Hill  n'<(uire 

till!  (itiier  t'o-oxecutor8  to  lie  lirouyht  lu'fore  the 

(.'(luit  lifforo  they  will  refer  it  to  a  Ma»ler  to 

rcpiirt  on  MuitultleneHH  of  perHonii  to  be  subiiti- 

tuted. 

/«  re  Eiitate  0/  Tohin,  '2  Thorn.,  338. 


EXTKADITIOX. 

Power  to  try  for  other  oflTences  than  that 

for  which  prisoner  extradited- 

.svr  CKIMINAL  LAW,  7. 


{'2.)  That  tho  li((uidutor  had  no  power  to 
interiKjie  iu  the  lUit  between  the  plaintitr  and 
defendant. 

(3.)  That  even  if  tiie  liijuidator  could  havo 
HO  iiiterpoBed,  he  niuit  have  failed  on  account 
of  laciiex. 

McDonald,  C.  J.,  dii^umtimj. 

Thi  //a/i/ax  Haukin\i  Co.  v.  The  Dominion 
Sahayt  «t  Wrukimj  Co.,  (1  K.  &  O.,  3tt4  ; 
6C.  L.  T.,490. 


FALSE  ABREST  AND  IMPRISONMENT- 
Set  ARREST,  III. 


EXTRA-TERRITORIALITT. 

Courts  of  one  Province  cannot  restrain 

proceedings  in  Courts  of  another  Province— 

The  plaintiff  having  commenced  proceedings 
against  the  defendant  company,  under  the  Act 
of  the  Province  of  Nova  Scotia  relating  to  the 
service  of  process  on  companies  out  of  the  Pro- 
viiKc,  obtained  judgment  and  issued  execution 
under  whicii  the  .Sheriff  levied  upon  certiun 
property  of  the  defendant  within  the  Province. 
Tlie  defendant  company,  which  was  incorpora- 
ted under  an  Act  of  the  Dominion  Legislature, 
and  had  its  head  otfice  at  Montreal  in  the  Pro- 
vince of  Quebec,  having  become  insolvent,  was 
placed  in  liquidation,  and  an  order  was  obtained 
by  the  liquidator  from  the  .Superior  Court  of 
Quebec  restraining  the  Sheriff  from  proceeding 
to  sell  under  the  execution.  The  order  was 
served  after  the  seizure  and  before  the  sale,  but 
the  Sheriff  proceeded  notwithstanding  to  sell. 
Sul)se(juently  the  liquidator  interposed  in  the 
suit  brought  by  the  plaintiff  against  the  defen- 
dant company,  and  obtained  a  ruls  to  have  the 
execution  and  all  proceedings  under  it  set  aside. 
From  the  time  of  the  issue  of  the  execution, 
with  the  liquidator's  knowledge,  down  to  the 
application  for  the  rule,  two  months  had  elapsed 
(luri  )g  which  time  several  steps  had  been  taken. 
Held  (1),  that  the  Quebec  Court  had  no 
power  to  enforce  a  restraining  order  to  stay 
proceedings  in  the  Courts  of  this  Province,  but 
that  proceedings  for  that  purpose  should  have 
been  taken  here. 


FALSE  PRETENCES. 
Judgment  discharged  by-The  Court  will 

restore  a  judgment  diHchargcd  without  consider- 
ation upon  faUe  (iretences  of  tho  defendant,  upon 
an  affidavit  a  balance  l>eiiig  due, 

J'oncia  V.  McDoniifll,  James,  .^S. 

Ste,  alM,  FRAl'D  AND  MISREPRESENTATION. 


FEES. 


1.    or  Registrar  of  Probate  —  Proctor  of 

estate  liable  for— Plaintiff",  a  Registrar  of  Pro- 
bate, was  requested  by  defendant,  a  proctor 
practising  in  the  Court,  to  prepare  copies  of 
certain  papers.  Before  the  papers  were  com- 
pleted plaintiff  ceased  to  be  Registrar,  but  was 
not  aware  of  his  removal  from  office  when  the 
order  for  the  papers  was  given.  Tho  work  was 
charged,  not  to  the  defendant,  but  to  the  estate 
for  which  he  was  acting.  The  Magistrate's 
Court  ond  the  County  Court,  on  appeal,  decided 
in  favor  of  plaintiff. 

Held,  that  the  defendant  was  liable  for  the 
fees 

Bliss  V.  Dickie,  1  R.  &  G.,  246. 


2.   Witness  fees— 


^«e  COSTS. 


FELON  T- 
^ee  CRIMINAL  LAW. 


FEME  COYERT. 
^ee  HUSBAND  AND  WIFE. 


675 


FISH  AND  FISHEUY. 


576 


FENCES. 
Erection  oi  -TrmpAu   Plnlntlff  and  de« 

fciiilunt  wvro  uiljniiiiii^  pnipriutoi'M,  thuir  iiin- 
])ui.'tivu  lolN  liuing  (liviiliMl  l>y  iiii  oi'tlinary  \»mt 
unit  Ixxinl  fuiioe.  'I'liiii  fmicu  wiiit  bluwii  ilown, 
itnti  ilufi'iiilaiil  L'iii|ili)yL'il  pcrHoiiH  to  )>uilil  ii 
IK'W  oiiu,  wliii'li  tlillui't'cl  from  tliu  old  in  that 
thv  poHtM  liail  "hIiol'n,"  'I'Iiv  vxouvatioiiH  iilviih- 
nary  fur  tlic  pontn  and  "hIioi'm"  wrru  made  l)y 
(k'fcixlant,  partly  on  ,liiti  own  and  partly  on 
plaintiirH  lanil. 

Jlilil,  that  dufundanl  had  no  right  to  cxcavutu 
or  build  upon  )>laintitl"H  land. 

Iluiihr  V.  lioniic,  2  N.  S.  1).,  113. 


FILIATION- 
See  BASTARD. 


FISH  AND  FISHERY. 
1.    Action  for  penally -DcRiuIt- Practice 

— I'laintiil',  an  IiiHpoclor  of  Kivcr  Fislu'rien, 
brought  an  action  for  a  penalty  against  di'fi'ii- 
dant,  and  thu  latlur  not  appearing,  entcruil  up 
juilginont  against  hint  for  !?40.(Kj,  the  full  amount 
of  the  peiuvlty  prescribed  for  the  otl'ence, 

III  Id,  that  before  doing  so  the  plaintiflf  should 

have  given  some  proof  of  the  offence  beforo  a 

Judge  of  tho   Court,  who   would   then  decide 

and  direct  what  penalty  should  be  imposed. 

Mason  V.  Muhar,  1  N.  S.  D.,  314. 


2.  Brand  -Warranty  -I'laintiflfs  sold  to  de- 
fendant a  (juantity  of  tish,  packed  in  barrels  and 
half  barrels,  inspected  by  one  of  the  plaintiff's, 
not  being  a  sworn  inspector,  as  provided  by 
Statute  (3rd  R.  8.,  c.  85),  and  by  him  branded 
•'CJulf  Herring,  Split  No.  1,"  the  statutory 
description  of  inspected  herring.  Before  pur- 
chasing, defendant  examined  a  few  barrels 
which  were  opened,  and  saw  none  unsound. 
The  fish  were  shipped  to  Boston,  and  on  in- 
spection there  they  turned  out  bad,  with  the 
exception  of  four  barrels,  and  were  returned  to 
Halifax,  whore  they  were  again  inspected. 
There  was  strong  evidence  that  the  fish,  when 
sold,  did  not  correspond  with  the  brand,  and 
the  jury  in  answer  to  a  question  put  to  them  by 
the  Judge,  found  that  the  fish,  when  sold,  were 
not,  as  a  whole,  properly  cured  and  merchant- 
able ;  but  to  another  question,  whether  the  fish 


were  fraudulently  put  up  for  thu  purponu  of  tie- 
ception,  they  niiidu  answer  in  thu  ncgiitivu,  A 
verdict  |>aNHed  for  thu  plalntitln  for  #.'i.V),  tint 
claim  being  about  I^IIIK). 

Ililil,  that  Iho  brand,  "tiulf  Herring,  Split, 
No.  I,"  amounted  to  a  warranty  that  the  tinli 
were  of  thu  ijuality  eominurcially  known  uiiili.>r 
that  denoniinatiiiii';  that  it  was  not  ncrci^Mary 
for  defendant  to  bring  a  cross-action  on  tlio 
warranty,  but  that  he  could  give  evidi^mc  df 
tho  breach  of  the  warranty  as  proof  of  failure 
of  eonsiduration,  and  that  thu  verdict  should  lie 
set  aside  with  coMts, 

Madir  >.t  al.  v.  Joitei,  1  U.  &  C".,  S'J. 

3.  Crown  cannot  crant  exclusive  rljg;lit  lo 

AbH  in  navigable  waters  —The  tVown  liiiiimi 

grant  the  waters  of  a  navigable  arm  of  the  Ncii, 

HO  as  to  give  a  right  of  exclusive  tisl'ing  tiieieiii, 

Mtlniier  v.  Faiinixij,  'JTIioni,,  1)7, 

4.  Deputy  InHpector-Actlon  agaln»i(  b) 

Inspector  to  recover  costs  of  re- inspection, 
&c.— Plaintiff,  an  inspector  of  pickled  lisli  umler 
c.  49  of  tho  Dominion  Acts  of  IH74,  liiDiigiit 
an  action  to  recover  from  tho  Deputy  Ins[)ecti)i' 
the  cost  of  re-inspecting  lish  improperly  bnmileil 
by  the  Deputy  and  the  ditFerence  between  tlie 
value  of  tho  fish  as  determined  by  tho  lirat 
inspector,  and  tho  value  as  ascertained  by  the 
re-inspection,  which  amounts  the  inspector  liml 
paid  to  the  purchaser  of  the  tisli, 

//(/(/,  alHrming  the  decision  of  the  County 
Court,  tliat  the  Inspector's  only  remedy  as  to 
tho  difference  in  valuation  was  on  the  bond  pro- 
vided by  the  Statute  to  be  given  by  the  Deputy 
Inspector,  and  tho  ;cost  of  re-inspection,  which 
the  County  Court  Judge  had  hold  to  be  recover- 
able, being  under  .?20,  did  not  bring  the  case 
within  the  jurisdiction  of  the  Court. 

liyaii  V.  Hawts,  3  R.  &  C,  595. 

5.  Fisheries  Act,  1868,  Dom. -An  appeal 

lies  to  the  Supreme  Court  from  a  conviction  for 

penalties   under   the   Dominion   Fisheries  Act, 

1868,  c.  60. 

iiue.tn  v.  Todd,  1  R.  &  C,  62. 

6.  River  Fisheries  Act  — Appeals  under 

the  River  Fisheries  Act  must  be  made  to  the 

86BS1011S 

Gough  V,  Morton,  2  Tlioni.,  10. 

7.  Violation  of  Convention  of  1818  and 
Dominion  Fisheries  Act  — 

See  CONVENTION  OF  1818. 


«77 


FORBEARANCK 


878 


rilTVRES. 
1.  D«maKeii  tor  removal  of-In  an  action 

liy  plikiiititr  to  ruciivor  <lutiiu|{uM  for  tliu  reiiioviil 
ol  liMiiri'i'  friiiii  iirojHMty  of  tlio  |iluiiititl',  ocou- 
pii'il  hy  ilffuinlaiit  iih  a  ti'iiiiiit,  lliv  latti;!'  rulitiil 
on  II  liill  iif  Halu  fi'Diii  {.>  ,  a  fiiriiHT  tunant,  Ity 
ulioiii  tliu  tixtiu'UM  liail  l)ui!ll  plauuil  u|i<iti  tlio 
lii'tMiiiriuH,  ami  uiiilui'  wlioni  tliu  ilvfuiulai't  had 
giiiii'  in. 

Tilt'  term  for  u-lilul<  ij.  Iiuld  imviiig  expired 
iii'foiv  thu  runiDval  of  tliu  tixturca, 

III  III,  that  |ilaiiititr  iiiUHt  rocover,  ami  that 
tilt  jiiilgiiiont  for  thu  dufumhiiit  iiiUHt  lie  net 
aitiili'. 

.Iu>l)jtiii'iit  having  huun  givt'ii  for  dcfuiiihiiit 
nil  II  fiii'tiiur  trial,  Judgtiicr\t  waH  now  uiiturud 
fur  |>liiiiititr,  rather  than  Mund  thu  uaHu  iiauk 
iigaiii, 

Harrison  v.  Smith,  7  U.  A  (■.,  510 ; 
8C.  L.  T.,    58 

i.  Trade  fIxtures-Kemoval  or-Plalntlff 

let  to  tliu  dufuiidant  a  dwulliiig  hoUHu  for  tliu 
term  of  tivu  yuarn,  with  privilegu  of  renewing 
uiidur  a  writtun  leatie,  in  wliiuh  tlufendunt  cove- 
niiiitt'd  to  Hurrender  the  prcniiHCH  in  as  good 
cuiulitioii  as  reasonalile  wear  and  use  would 
permit,  and  the  plaintiff  agreud  to  permit  the 
(lefeiidaiit  to  remove  t!ie  lower  front  room  win- 
dows, lower  the  floor,  substitute  a  shop  front, 
und  make  such  alterations  as  he  might  require 
for  the  completion  of  a  shop.  Defendant  made 
the  alterations,  and  at  thu  end  of  the  term  (juitted 
the  premises,  having  removed  the  counters  and 
siielviiig  and  a  lead  pipe  and  sink.  The  Judge 
of  the  County  Court  decided  that  the  defendant 
had  a  right  to  remove  these  articles  as  trade 
Kxtures,  and  plaintiff  appealed  on  the  ground 
timt  the  decision  was  against  law  and  evidence. 

The  rule  for  appeal  was  taken  Dec.  3,  1879, 
mill  on  Dec.  14,  1880,  defendant  moved  for  leave 
to  amend  the  grounds  so  as  to  raise  the  (juestion 
as  to  the  right  to  remove  these  articles  as 
tixtiires. 

Hilil,  that  the  amendment  could  not  be 
allowed,  and  that  the  judgment  below  was 
correct. 

/Vr  McDonald,  J.— That  the  question  as  to 
tile  right  to  remove  the  articles  was  one  of  fact, 
upon  which  the  determination  of  the  County 
Court  Judge  could  not  be  disturbed  unless  upon 
""  'Jverwhelining  preponderance  of  evidence. 

Pt)'  Weatherlie,  J. —That  the  Judge  had 
rightly  determined  that  the  articles  were  fix- 
tures, which  the  tenant  had  a  right  to  remove, 
and  this  was  the  point  upon  which  the  case 
turned. 

Laidlaw  v.  Taylor,  2  R.  &  G.,  155. 
19 


riAti  or  TRvci. 

VeMel  raptured  In  violation  of  flax  of 

truce,  restored  with  full  coiti  and  damage*. 
Thi  /(ulinrk,  Stewart,  X\'.\, 

Sr.e,     PRIZE. 


FORBE.\RANCE. 
1.   Effect  of  delay  In  enlbrclng  claim 

against  principal  on  liability  of  surety— H.  L. 

and  dufuiidant  being  indebted  to  V.  in  the  sum 
of  C'i,'J(NI,  dufuiidant  gave  notes  for  his  share, 
which  hu  paid.  H.  L.  aHHiimed  the  payment  of 
the  othur  half,  and  assignud  to  \,  u  mortgage  o( 
a  property  on  which  hu  had  laid  out  between 
i.SlNXJ  and  £\i*%).  In  furtliur  security,  a  bond, 
dated  'M)i\\  June,  1844,  was  given  to  V.,  exe- 
cuted by  H.  L.  and  dufuiidant  in  the  penal  sum 
of  i;'J(X)().  H.  L.  died  in  1854,  no  payment  hav- 
ing buen  made  either  of  principal  or  interest, 
but  leaving  thu  property  given  as  security  in 
good  order.  The  property  held  as  security  hav- 
ing been  reducc^d  in  value  to  iJ400  or  £500  in 
consetiuence  of  a  tire,  and  an  action  having  l)een 
brought  against  the  surety  for  the  principal  sum, 
with  upwards  of  twenty-tive  years'  interest, 

Hflil,  that  "  notwithstanding  the  unexampled 
and  inexplicable  delay,"  the  surety  was  not  dis- 
charged from  payment  of  the  principal  sum. 

Quaere,  as  to  the  claim  for  interest. 

Scmhle,  that  if  the  surety  had  requested  the 
creditor  to  sue  and  had  accompanied  his  request 
with  an  ofTer  to  intlemnify,  he  would  have  l)een 
released  in  the  event  of  the  creditor  forliearing 
to  sue. 

Vans,  As.iiijnee,  v.  Letson,  1  N.  S.  D.,  375. 


2.  Forbearance  to  sue,  good  consldera* 

tion — Defendant  was  indebted  to  plaintiff's  as- 
signor, and,  upon  demand  of  the  amount  by  the 
assignee,  acknowledged  the  indebtedness  and  re- 
quested time  for  payment,  pi-oniising,  in  consid- 
eration of  the  forbearance,  to  pa}'  the  amount  to 
plaintiff.  Plaintiff  suing  for  the  debt,  objection 
was  taken  that  he  was  obliged  as  assignee  tj 
give  fourteen  days  notice  under  the  statute. 

HM,  that  the  forbearance  to  sue  was  good 
consideration,  and  that  plaintiff  could  recover 
on  an  account  stated. 
Parsons,  Assiijnce,  v.  MacLean,  5  R.  &  G.,  45. 

3.  Contracts  of  forbearance— 

See  CONTRACT,  36-43. 


579 


FOREIGN   LAW. 


580 


FORCIBLE  ENTRY. 

1.  Absence  of  evidence  of  violence  and 

terror — Plaintiffs,  as  trustees  of  a  school  section, 
had  occupied  since  1853  a  lot  of  land  reserved  for 
them  by  8.  O.,  who,  however,  had  omitted  to 
give  them  a  deed,  lu  1871  defendant  obtained 
a  deed  from  the  heirs  of  S.  0.,  knocked  down 
the  fence  around  the  lot  and  ploughed  the  land. 
Plaintiffs  proceeded  against  him  for  forcible  en- 
try and  detainer,  but  the  Judge  presiding  at  the 
trial  ruled  that  in  the  absence  of  evidence  of 
violence  and  terror  the  complaint  could  not  be 
sustained. 

Held,  that  his  ruling  was  correct. 

BrimdUje  el  al.  v.  Thompson,  3  N.  S.  D.,  356. 

2.  Application  of  statute,  4tta  R.  S.,  c. 

105— Cf.  5th  R.  S.,  c.  126  -  Defendant  broke 
open  the  door  of  a  barn  without  any  circum- 
stances of  terror  or  violence,  and  in  the  bona 
fide  assertion  of  an  alleged  right  to  the  posses- 
sion under  a  lease  from  plaintiff.  Defendant  was 
arrested  under  a  warrant  issued  under  c,  105, 
4th  R.  S.,  of  "  Forcible  Entry  and  Detainer." 

Held,  affirming  the  decision  of  the  County 
Court,  that  the  statute  was  not  applicable  to 
such  a  case. 

Bertram  v.  Bonham,  3  R.  &  C,  600. 


by  reason  of  ony  jurisdiction  conferred  by  tlinse 
Acts,  but  by  reason  of  the  Imperial  Bankruptcy 
Act,  which  did  not  give  such  appeal. 

Ee  C'arrell,  ex  parte  GHddon,  5  R.  &  (!.,  410. 


FORECLOSURE - 
See  MORTGAOE. 


FOREIGX  ADJUSTMENT- 
See  IjrSURAJfCE,  MARINE. 


FOREIGN   BANKRUPTCY  ACT. 

County  Court  Judge  acting  in  aid  of  Lon- 
don Bank-'uptcy  Court  —  Appeal — A  County 
Court  Tudge  was  applied  to,  to  act  in  aid  of,  and 
as  auxiliary  to  the  London  Bankruptcy  Court, 
in  relation  to  property  of  an  English  bankrupt 
situate  in  his  district,  and  made  an  order  accord- 
ingly- 

Held,  McDonald,  C.  J.,  dinsenting,  that  no 
appeal  would  lie  from  such  order  to  the  Supreme 
Court,  either  under  the  Insolvent  Act  of  Canada, 
which  had  given  certain  powers  to  the  Judge  in 
reference  to  insolvents,  or  uni'er  the  County 
Court  Acts,  inasmuch  as  his  order  was  not  made 


FOREIGN  CORPORATION. 

1.  Attachment  against  —  Service  of  pro- 

cess  on  agent— Collusion — 

See  CORPORATION,  1. 

2.  Interrogatories  —  Foreign    company 

doing  business  in  Nova  Scotia  —  Ordered  to 
answer—  See  EVIDENCE,  69. 

3.  Jurisdiction  over  foreign  companies- 

See  COMPANIES,  2. 

4.  Proceedings  against— Want  of  service 

of  notice  on  agent — An  application  was  made 
by  Wallace  to  rescind  an  order  made  for  the 
payment  to  the  plaintiffs  of  the  surplus  pro- 
ceeds of  a  sale  of  defendants'  land  on  the  ground 
that  the  judgment  under  which  plaintiffs  claimed 
the  proceeds,  and  which  was  taken  by  defauU, 
was  based  on  notes  given  without  any  consider- 
ation. Wallace  had  taken  proceedings  against 
the  defendants  under  4th  Revised  Statutes,  cap. 
97,  sec.  26,  as  a  foreign  company  doing  business 
in  this  Province  by  an  agent,  but  the  agent  had 
not  been  served. 

Held,  that  for  want  of  service  on  the  agent 
Wallace  was  not  in  a  position  to  make  the  ap- 
plication. 

Almon  A  Mackintosh  v.  Cole  Harbor  Land  Co., 

1  R.  &  G.,  396. 

5.  Suit  against— Service  on  agent-Con- 

structlon  of  4th  R.  S.,  c.  97,  s.  26-Cf  5th  R. 

S.,  c.  104,  O.  XLVIL,  R.  1- 

See  COMPANIES,  1. 

6.  Suits  against- 2nd  R.  S.,  c.  134,  part 

II.,  s.  1— 

See  CORPORATION,  18. 


FOREIGN  LAW. 

1.  Cannot  affect  note  dated  and  to  bo 

used  in  Nova  Scotia — 

See  BILLS  OF  EXCHANGE  AND  PROMISSOBT 
NOTES,  V. 

2.  Decisions  of  tbe  United  States  Courts. 

although  entitled  to  respect,  are  not  binding  on 

our  Courts. 

Roberts  v.  Patillo,  James,  367. 


081 


FRAUD  AND   MISREPRESENTATION. 


582 


3.  Offence  on  high  sea  — Foreign  ship- 
British  subject — A  Hritish  Court  lias  no  juris- 
diction to  punisli  a  foreigner  for  an  offence  com- 
mitted on  the  high  seas,  in  a  foreign  ship, 
against  a  British  subject. 

Queeti  V.  Kiimmav,  James,  62, 

4.  Foreign  principal- 

see  PRINCIPAL  AND  AGENT. 

5.  Proof  of  marriage  under— 

See  CRIMINAL  LAW,  4. 

6.  Proof  of— Qualification  of  witness- 

A  witness  must  state  some  ground,  professional 
or  practical,  upon  which  his  knowledge  rests  to 
qualify  him  to  speak  of  the  law  of  a  foreign 
state.  It  is  not  enough  for  such  a  witness  to 
say  that  he  is  familiar  with  the  foreign  law, 
without  stating  the  ground  on  whicli  his  know- 
ledge rests. 

Where  a  witness  has  resided  in  this  Province, 
as  American  Consul,  for  six  years,  during  which 
time  certain  currency  laws  were  passed  in  the 
United  States,  of  which  his  only  knowledge  was 
derived  from  having  them  transmitted  to  him. 

Held,  that  this  was  not  a  su£Bcient  qualification 
in  the  absence  of  an  assertion  that  his  official 
duties  required  him  to  acquaint  himself  with 
the  currency  laws  of  his  country. 

McKenzie  v.  Gordon,  1  N.  S.  D.,  153. 


FORFEITURE. 

1.  Of  goods  for  unpaid  duties— 

Sec  REVENUE  LAW. 

2.  Of  grant  for  non-performance  of  con- 
dition- 
See  GRANT. 

3.  Of  lease - 

Ste  LANDLORD  AND  TENANT. 

4.  Of  mining  nreas- 

Sae' MINING  LAW. 


5.  Of  prize  of  war- 


Sec  PRIZE, 


FORGERI- 

Stt  BILLS  OP  EXCHANGE  AND  PROMISSORY 
NOTES,  XII.,  5 -CRIMINAL  LAW,  7- 
WILL. 


FRAUD  AND  MISREPRESENTATION. 

1.  Action  for  return  of  deposit  on  pur> 

chase  of  land— All  the  estate,  &c.,  of  defen- 
dants— Under  an  order  of  foreclosure  and  sale 
pluintiH's  advertized  for  sale  "All  tlie  estate, 
right,  title,  interest  and  ccjuity  of  redemption  " 
of  the  defendants.  At  the  sale  one  M.  became 
the  purchaser,  and  paid  down  the  ten  per  cent 
deposit  required  under  tlie  terms  of  the  sale,  but 
refused  n>  complete  the  purchase,  on  the  ground 
that  a  good  title  in  fee  simple  could  not  be  given. 
An  order  for  a  re-sale  was  made  and  the  prop- 
erty was  sold  for  an  amount  less  than  the  amount 
of  the  mortgage.  Plaintiffs  applied  to  the  Court 
for  an  order  for  the  payment  to  them  of  the  de- 
posit on  the  first  sale.  M.  showed  cause,  con- 
tending that  he  was  entitled  to  the  return  of  the 
deposit,  as  a  good  title  could  not  be  given. 

Held,  that  as  the  plaintiffs  had  only  professed 
to  sell  the  title  of  the  defendants,  such  as  it  was, 
and  had  not  been  guilty  of  fraud  or  misrepresen- 
tation, and  the  purchaser  would,  under  his  pur- 
chase, have  acquired  all  that  he  bid  for,  he  was 
not  entitled  to  a  return  of  the  deposit. 
Diocesan  Synod,  Nova  Scotia  v.  O'Brien  et  al. , 

R.  E.  D.,  352. 

2.  Action  for   specific  performance  of 

contract  in  writing — Verbal  representations 
made  before  contract  admissible  in  evidence 
— Plaintiff  brought  suit  to  compel  the  perform- 
ance by  defendant  of  a  contract  in  writing  for 
the  purchase  of  a  house.  During  the  negotia- 
tions defendant  asked  expressly  as  to  the  drain- 
age, which  plaintiff  assured  him  was  perfect, 
but  which  in  fact  was  seriously  defective.  It 
appeared  that  the  representations  had  been  made 
by  the  plaintiff  in  good  faith  and  in  ignorance  of 
the  facts,  and  the  house  being  occupied  defen- 
dant could  not  insf  ."ct  it  for  himself.  Nothing 
was  said  uliout  the  matter  in  the  written  con- 
tract. 

Held,  that  in  the  suit  for  specific  performance 
the  verbal  representations  made  previous  to  the 
written  contract  must  be  taken  into  considera- 
tion, and  that,  being  material  representations  on 
the  faith  of  which  defendant  entered  into  the 
contract,  they  constituted  a  defence,  although 
plaintiff  did  not  know  them  to  be  untrue. 

Thomson  v.  Longard,  R.  E.  D.,  181. 

3.  Appeal  dismissed  where   there  was 

evidence  to  auatain  the  judgment  if  the 
Judge  believed  the  defendant  and  his  wit- 
nesses-Fraudulent sale — Suspicious  circum- 
stances— Defendant,  as  Sheriff  of  the  County 
of  Pictou,  levied  upon  a  horse  under  a  writ  of 
execution  issued  on  a  judgment  recovered  against 


583 


FRAUD  AND   MISREPRESENTATION. 


584 


G.     Plaintiff  ckimed  daniages,  alleging  that  he  !  sold  to  plaintiff  were  levied  upon.     The  sale  to 
had  purchased  the  horse  from  (i.  prior  to  the    plaintiff  took  place  eighteen  months  hefore  the 


receipt  of  the  execution  by  defendant 

At  the  trial  judgment  was  given  for  defen- 
dant, on  the  ground  that  no  /loiia  Jidt  contract 
for  the  purchase  and  sale  of  the  horse  was  made 
between  plaintiff  and  (i.  Plaintiff  having  ap- 
pealed, 

Held,  that  as  there  was  enough  evidence  to 
sustain  the  judgment,  particularly  if  the  learned 
Judge  believed  the  defendant  and  his  witnesses, 
and  as  he  had  an  oppttrtunity  of  seeing  and 
hearing  the  witnesses  and  judging  of  their  cred- 
ibility, the  appeal  must  be  dismissed. 

Weatherbe,  J.,  diixentmij,  on  the  ground  that 
there  was  no  evidence  that  the  alleged  sale  was 
fraudulent,  Imt  merely  of  suspicious  circum- 
stances. 

MeKcnzie  v.  Harrit,  7  R.  &  (J.,  348; 
7C.  L.  T.,407. 

4.  Assignments  in.  fk'aud  of  creditors  — 

See  ASSIGNMENT,  IV. 

5.  Badges   of    fraud  —  Suspicious    cir- 

cumstancea  —  Judgment  below  reversed  — 
Power  of  the  Court  to  review  erroneous 
findings  —  T.  W.  and  J.  W.,  his  son,  resided 
on  a  farm  which  they  worked  jointly  and  upon 
which  each  had  placed  some  stDck. 

In  March,  1880,  T.  W.  assigned  to  J.  W.  and 
J.,  another  son,  all  his  right  and  title  to  the 
farm  and  all  his  interest  in  the  cattle,  sheep, 
&c.,  upon  it,  including  a  horse  which  he  had 
purchased  from  S.  a  year  previous,  in  payment 
for  which  he  had  given  his  note.  The  consid. 
eration  for  the  assignment  was  the  support  and 
maintenance  of  T.  W.  and  his  wife  during  the 
remainder  of  their  natural  lives. 

In  June,  1880,  T.  W.  was  sued  on  the  note  by 
S.  and  judgment  recovered  against  him,  ?nd  an  counting  in  the  sum  of  £800,  and  also  for  non- 
execution  isHued  on  which  he  was  committed  to  i  payment  of  a  promissory  note  for  £100  Defen- 
jail.  He  obtained  his  discharge  under  the  Indi-  !  dant  pleaded  fraud  and  misrepresentatif>n,  and 
gent  Debtors'  Act  in  June,  1881.  After  the  as-  j  that  the  vessel,  the  subject  of  the  contract,  had 
signment  the  cattle  remained  on  the  farm  in  the  l  not  been  completed  by  plaintiff  according  to  the 
custody  of  J.  W.  and  J.  until  December  21st,  1  terms  of  the  agreement  between  them,  but  was 
1881,  when  J.  W.,  having  determined  to  leave  [  unseaworthy,  and  also  a  set-off  for  expenses  in- 
the  farm,  sold  the  cattle  to  plaintiff  and  received  '  curred  in  consequence  thereof, 
the  price  agreed  upon.    J.  W.  then  left  the  farm  i      It  appeared  that  plaintiff,  being  engaged  in 


j  issue  of  the  execution,  and  there  was  no  evi- 
dence to  show  that  plaintiff,  when  he  bought, 
had  reason  to  suspect  that  J.  W.  was  not  acting 
f)07ia  jidt  in  the  matter. 

He/d,  per  McDonald,  C.  J. — That  there  was 
no  evidence  to  sustain  a  finding  that  the  sale  to 
plaintiff  was  fraudulent  and  collusive. 

Per  Thompson,  J. — That  suspicious  circum- 
stances having  Iwen  fully  explained  by  the  evi- 
dence, there  was  no  ground  to  infer  fraud  and 
nothing  to  be  left  to  a  jury. 

Per  Rigby,  J.  —That  there  was  slight  evidence 
of  fraud  ;  Init  in  view  of  the  whole  testinuiny 
the  conclusion  of  the  Jiulge  below  was  erroneous 
and  should  be  reverse<l. 

Weatherbe,  J.,  dinseiitin;/. 

Where  the  evidence  on  a  trial  is  contradictory 
tlie  Court  will  be  slow  to  disturb  the  finding 
below  ;  but  otherwise,  where  the  (juestion  is  as 
to  the  souiulness  of  a  conclusion  arrived  at  on 
admitted  facts,  and  it  appears  clearly  that  the 
tinding  is  erroneous. 

The  Court  will  review  a  judgment  founded  on 
an  inference  of  fraud  more  freely  than  where  it 
is  based  on  a  conflict  of  testimony. 

lirady  v.  Jhll,  7  R.  &  G.,  336; 
7  C.  L.  T.,  408. 

6.    Bin  of  sale— Agreement  not  to  record— 

Per  Weatherbe,  ,/.— An  agreement  not  to 
record  a  bill  of  sale  is  not  a  fraud. 

McAllixter  et  al,  v.  Fornyfh  et  at., 

5  R.  &  G.,  131. 

See  ASSIGNMENT,  I,  6. 


7.   Bills  ofjsale- 


Fraud  in— 

See  BILLS  OF  SALE. 


8.   Caveat  emptor  — Action  for  not  ac- 


and  did  not  subsequently  exercise  any  acts  of 
ownership  over  the  cattle.  Plaintiff,  who  was  a 
miner  and  worked  away  from  home  and  was  un- 
able to  care  for  the  cattle,  made  an  agreement 
with  J.  to  do  so  for  him. 

S.  commenced  proceedings   in  equity  to  set 
aside  the  conveyance  from  T.  W.  to  his  sons, 


building  a  vessel  in  July,  1864,  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,  1865,  was  delivered  to 
him  and  he  signed  an  agreement  to  pay  for  her. 
There  was  no  warranty  required  or  given,  and 


and  having  succeeded  in  doing  so  an  execution    no  proof  of  any  fraud  or  misrepresentation  on 
was  issued  for  the  costs  under  which  the  cattle  {  the  part  of  plaintiff. 


585 


FRAUD  AND  MISREPRESENTATION. 


086 


Held,  that  as  the  defendant  had  had  the  fullest 
opportunity  of  inspecting  the  vessel  while  in 
progress  of  completion,  and  of  exercising  his 
own  judgment  upon  her,  the  maxim  caveat 
em/)for  applied,  and  he  was  excluded  from  giving 
evidence  as  to  her  being  unseaworthy. 

Alio,  that  it  was  not  open  to  the  defendant  to 
impeach  the  note  unless  there  was  a  total  failure 
(if  consideration,  his  proper  remedy  for  his  par- 
tial failure  l)eing  by  cross  action. 

Aim,  that  evidence  under  the  plea  of  set-off 
was  properly  excluded. 

lirundifje  v.  Ddanty,  2  N.  S.  D.,  62. 

9.  Construction  of  sec.  133,  Insolvent  Act 

1875 — Simile,  that  even  before  the  amendment 
of  sec.  1.3.3  of  the  Insolvent  Act  of  1875,  by  the 
insertion  of  the  words  prima  facie  (cap.  41  of 
1871),  the  presumption  of  fraud  could  be  re- 
butted. 

Lotifjworth  et  al.  v.  Merchaiitu'  Batik; 

R.  E.  D.,256. 

10.  Construction  of  Statute  of  Limitations 

—The  Statute  of  Limitations  sliould  not  be  so 
construed  as  to  protect  or  be  a  means  of  fraud. 
For.syth  v.  Griffin,  James,  241. 

11.  Defendant   in    replevin   witlidraws 

pleas— Redress  of  surety  on  bond,  if  such 
withdrawal  fraudulent — In  a  case  of  replevin 
the  defendant  withdrew  his  pleas  and  gave  a 
confession,  upon  wliich  plaintiff  regularly  en- 
tered up  judgment.  Sometime  subse(juently  W. , 
who  was  not  a  party  to  the  suit,  but  who  claimed  i 
the  goods  replevied  under  an  assignment  from 
the  defendant,  and  was  one  of  the  sureties  upon 
the  replevin  bond  to  the  Sheriff,  souglit  to  have 
the  judgment  set  aside,  on  the  ground  that  the 
confession  was  a  fraud  upon  him  and  tlie  other 
cre<litors  of  defendant,  and  also  that  he  had 
joined  with  defendant  in  the  pleas,  which  had 
l)een  wi'Julrawn  without  his  sanction.  The  lat- 
ter allegation  was  denied,  both  by  defendant  and 
defendant's  attorney,  whom  W.  swoie  he  had 
instructed  to  act  for  him. 

ffehl,  that  W.,  not  being  a  party  to  the 
record,  had  no  /ocu>i  utandi,  his  redress,  if  any, 
being  against  defendant's  attorney;  and,  also, 
that  he  had  been  guilty  of  lache.s. 

Hare  v.  Murphy,  3  N.  S.  D.,  202. 

12.  Discharge  in  insolvency  —  Plea  of— 

Replication,  that  it  was  obtained  by  fraud, 
held  good — Where  a  plaintiff  to  a  plea  of  dis- 
charge under  the  Insolvent  Act  of  1869,  replied 
that  the  discharge  had  been  obtained  by  fraud, 
Held,  that  the  replication  was  good,  and  that 


the  Judge  who  tried  the  cause  had  misdirected 
the  jury  in  instructing  them  that  the  question 
of  fraud  was  only  for  the  Court  that  confirmed 
the  discharge,  and  could  not  be  brought  up  ex- 
cept by  appeal. 

Godkin  v,  Bfch,  1  R.  &  C,  261. 


13.    Evidence  of  —  Plaintiffs  obtained 

85,000  insurance  on  a  mill  and  machinery  from 
defendant  company,  in  addition  to  ^,000  in- 
sured in  another  office.  In  a  letter  from  plain- 
tiffs to  their  agents  in  Halifax,  they  described 
the  mill  and  machinery  as  a  good  risk  for  $10,- 
000  (for  which  they  were  then  instructing  them 
to  insure  it),  and  estimated  that  it  could  not  be 
replaced  for  315,000,  although  they  had  pur- 
chased it  from  a  bankrupt  estate  for  $3,500. 
Plaintiffs'  witnesses  valued  the  property  vari- 
ously from  §12,000  to  §20,000,  and  defendants 
called  no  witness  as  to  the  value. 

//eld,  that  the  verdict  for  plaintiffs  could  not 
be  disturl)ed  under  this  evidence  on  the  ground 
of  a  "false  and  fraudulent  representation  that 
the  property  insured  was  worth  §15,000  when 
its  real  value  v/as  much  less." 

McGihbon  et  al,  v.  Imperial  Fire  Ins.  Co., 

2R.  &  G.,  6; 
1  C.  L.  T.,  192. 


14.    Evidence  insufficient  to  support  plea 

of — Defendants  purchased  a  quantity  of  growing 
trees,  and  gave  in  payment  therefor  their  prom- 
issory note,  which,  after  passing  througli  the 
hands  of  two  other  holders,  and  after  it  became 
due,  was  indorsed  to  the  plaintiff  for  value  and 
without  notice. 

To  an  action  by  plaintiff  to  recover  the  amount 
of  the  note,  defendants  pleaded,  among  other 
things, — 

That  they  were  induced  to  make  the  note  by 
fraud  ; 

That  there  never  was  any  consideration  for 
tlie  note,  inasmuch  as  the  trees,  in  payment  for 
which  it  was  given,  were  not  of  the  character 
and  number  represented,  and  were  worthless 
and  unmerchantable. 

It  appeared  from  the  evidence,  that  there  was 
no  warranty  as  to  the  condition  of  the  trees  ; 
that  the  defendants  had  an  opportunity  of 
examining  them  before  making  the  contract, 
and  that  they  asked  to  be  relieved  after  the 
contract  was  completed,  on  another  ground  than 
the  misrepresentation  alleged. 

Held,  that  the  plea  of  fraud  and  misrepresen- 
tation was  not  made  out. 

Mcintosh  v.  McLeod  ct  a/.,  6  R.  &  G.,  128  ; 

6C.  L.  T.,449. 


687 


FRAUD   AND    MISREPRESENTATION. 


588 


15.  False  representation  In  application 

for  insurance  avoids  policy— I'laintirt's'  w  ritten 
application  for  inaiine  insurance,  made  October 
17th,  1870,  to  tlie  St.  Lawrence  Marine  Associa- 
tion, of  whicli  defendant  was  broker,  and  in 
whicli  he  was  a  shareholder,  contained  tiie  fol- 
lowing statement :  "Insurance  elsewhere  not  to 
exceed  .'S'JidOO."  The  application  was  accepted 
Octo))cr  'Jotli,  1S70,  and  a  jwlicy  delivered  to 
the  plaintiffs'  agent,  containing  no  proliil)ition 
against  insurance  elsewliere.  The  vessel  was 
insured  in  another  company  to  the  amount  of 
92,0(K),  on  the  day  the  application  \vas  made, 
and  was  further  insured  for  .?'2,0(X»  in  November 
following. 

On  the  20th  February,  1S71,  tiie  defendant 
association,  none  of  tiie  parties  having  had  any 
intimation  of  the  loss,  cancelled  tiieir  policy 
on  account  of  such  nthei'  insurance,  cliarging  tlie 
plaintitfs  premium  up  to  tiiat  date  and  remitting 
tlip  premium  imyable  after  date.  The  vessel  was 
abandoned  as  a  total  wreck  on  Fel>.  19th,  1S71. 

Ill  Id,  that  the  statement  in  the  application  or 
slip  was  a  positive  representation  of  a  futme 
fact  material  to  tlic  I'isk,  and  tiiat,  being  false, 
it  iivoided  the  policy. 

Mr  Donald  ,f  «/.  v.  DonU,  .S  H.  k  C,  •270. 

On  afipial  to  th^  Siiprimc  Court  of  Cauadn, 

Held,  reversing  the  judgment  below,  tiiat  tiie 
defendants  could  not  l)c  allowed  to  ccintend 
that  the  cancellation  operated,  not  fmm  'JOth 
February,  1871,  up  to  which  date  the  premium 
was  charged,  but  from  November  previous. 
Appeal  allowed  witli  costs. 

McDonald  V.  Doull,  J.'fth  Fihrunry   IS^U, 

C'as.  Digest,  214. 

16.  Findings  or  fraud   unwarranted  — 

Action  of  ejectment.  Uefendaiit  liiiiited  his 
defence  to  a  portimi  only  of  tlie  land  souglit  to 
be  recovered,  and  pleaded  an  ecjuitable  jilea  to 
the  ell'ect  that  lie  had  olttaiued  possession  of  the 
land  in  quesstion  in  a  verbal  exciiange  between 
him  and  plaintitrs  father,  in  consider ition  of  a 
certain  otiier  piece  of  land  transferred  ))y  him 
to  the  father.  I'laintiff  re])lieil  tiiat  the  ex- 
change arose  out  of  false  and  frautlulent  misrep- 
resentation of  dcfeiidaiit,  and  was  afterwards 
repudiated  and  cancelled  l)y  iiis  fatlier. 

It  appearing  from  the  evidence  tiiat  after  the 
exchange  both  parlies  immediately  entered  into 
possession  of  their  respective  lots,  tiiat  defen- 
dant exercised  dominion  over  th<  land  in  contro- 
versy for  fifteen  years  up  to  the  time  of  action 
brought,  including  five  years  sul'secpient  to  the 
exchange,  during  which  the  fatlier  lived  ;  that 
the  father  died  without  ever  having  made  any 
attempt  to  reclaim  it ;  that  the  plaintifi'  was  in 


possession  of  the  land  transferred  to  his  father  at 
the  commencement  of  the  action,  and  that  the 
defendant  iiad  not  in  fact  made  any  false  or 
fraudulent  misrepresentations  as  alleged. 

I  Held,  that  his  eipiitable  plea  was  establisiied ; 
that  he  was  entitled  to  retain  all  the  land  trans- 
ferred to  him  by  plaintiff's  father,  and  conse- 

i  (|uently  that  there  should  be  a  general  judgment 
in  his  favor. 

The  finding  of  fraud  by  the  jury  held  unwar- 
ranted. 

j  Bell  v.  CarriUhers,  2  N.  S.  D.,  1. 

n.    Findinss  of  Jury  as  to -Plaintiff 

insured  in    lefendants'  otfice  .*!,S(JO  on  a  buiM- 

ling  and  81100  on  merchandise,   siiips'  stores, 

&c. ,  representing  the  value  of  the  property  in- 

i  sured  to  be  .SlS(i(),     The  property  being  tf)tally 

,  destroyed  by  fire  during  tlic  absence  of  plaint itl' 

he  notified  defendants'  agents  of  the  fact,  wlien 

they  said,  "Olitain  the   information  (required) 

'  after  you  get  home,  as  soon  as  possible,  and  that 

;  will  do,"  wiiich  plaintiff  did. 

Ill  hi,  that  on  the  (]uestioii  of  waiver  of  strict 
compliance  witli  terms  of  policy  as  to  notice  the 
jury  were  justified  in  finding  for  plaintiff. 
I      The  jury  iiaviiig,  in  answer  to  a  written  (jucs- 
1 1 ion  from  the  dudge,  "  Wlielher  iilaintill' iiiiide 
any  false  representations  to  tlie  comjiany  or  its 
agents  respecting  tiie  value  of  the  property  in- 
sured, or  any   part   thereof,  or   respecting  his 
;  claim  for  tlie  loss,  or  in  any  otiier  respect,"  ir- 
I  plied,   "  Incorrect   anil     unguanled    represeiila- 
tions  tiirougli  ignorance  respecting  the  value  of 
the  building,  ships'  materials,  puncheons,  Ac 

III  III,  that  tills  answer  negatived  fraud  on  tiie 
part   of  plaintiff  in   the   over-valuation  of  his 
property,  and  that  tiie  verdict,  which  was  for  a 
less  amount  liian  the  claim,  must  stand. 
Crinn  v.  Im pi  rial  Fire  Ins.  Co.,  1  H.  .t  C,  240. 

IS.    Fraud  In  roluntarj  gift— Meaning  of 

— Who  can  attack  gift  —  Effect  of  setting 
aside — The  question  of  fraud  in  relation  lo  a 
voluntary  gift  is,  in  effect,  a  questitm  of  fraud- 
ulent intention  in  the  donor's  breast  existing  at 
the  time  of  the  gift. 

A  proved  creditor  alone  can  inipeacli  a  volun- 
tary conveyance  as  fraudulent  against  creditors, 
though,  when  it  is  so  avoided,  it  is  avoided  for 
the  lienefit  of  all  the  creditors.  The  creditor 
must  put  himself  in  a  position  to  complain  liy 
obtaining  judgment  for  his  debt   and  showing 

:  that  by  the  settlement  he  is  defrauded. 

I  Clarh'  V.  FulUrton,  2  N.  S.  D.,  .348. 

19.    Frand  -  Justification  for  rescinding 

I  contract— 

I  See  COXTBACT,  33 


589 


FRAUD   AND   MISREPRESENTATION. 


690 


20.    Fraud  not  presumed  — On  a  note 

(latfd  May  2",  1873,  the  stump  was  cancelled 
l)y  writing  tliereon  '27,r),'73  It  appeared  on 
the  fiice  of  the  stamp  as  if  the  Hgure  "3"  had 
liftn  written  after  the  '"2,"  and  a  pen  drawn 
through  it,  hut  the  "7"  appeared  unerased. 
It  was  in  evidence,  uncontradicted,  that  the 
iiiitf,  when  presented  to  tiie  plaintilT  for  dis- 
count, was  stamped  as  it  aj)peareii  on  tiie  trial, 
anil  tliere  was  no  plea  alleging  a  fraudulent 
alteration. 

I/il<l,  that  the  Court  could  not  presume  that 
till'  stamp  hail  hcen  previously  used  on  an  in- 
.strunii'iit  dated  "JSrd  May,  and  fraudulently 
rc-used,  and  that  the  verdict  taken  for  plaintiff 
by  lonsent  must  stand. 

Murdoch  V.  Frastr  el  «/.,  1  R.  &  C,  303. 


21.    Fraud  on  revenue  —  Smuggling  — 

riiiintilV's  action  was  for  tiie  value  of  lumber 
shipped  under  an  agreement  tluit  defendant 
should  carry  it  and  sell  it  as  agent  for  plaintiti", 
for  cash  or  hills  of  exchange  on  France.  De- 
fendant could  not  sell  wholly  for  cash,  and 
exchanged  it  for  tobacco,  wliich  on  its  return 
was  snmggled  into  port  and  seized  by  the  reve- 
nue otlicers.  The  County  Court  Judge  found 
on  the  evidence,  that  plaintiti'  was  cognizant  of 
the  fraud  about  to  he  committed  on  the  revenue, 
and  gave  judgment  for  defeiulant,  which  was 
reversed  by  the  Court,  the  evidence  of  the  de- 
fendant us  to  the  plaintiff's  participation  in  the 
fraud  being  wholly  uncorroborated  and  contra- 
dicted by  plaiutitt". 

likthiin  v.  Gardner,  2  R.  &  G.,  417 ; 
2V.  L.  T.,203. 


22.  Fraud,  question  for  the  Jury— Where 

a  iiuestion  of  fraud  arises  on  a  bill  of  sale  to  a 
creditor,  it  is  exclusively  for  the  consideration  of 
the  jury. 

Tarralt  v.  Sawyer,  1   Thorn.,  (Ist  Kd.),  '20; 

(•2nd  Ed.),  ■Hi. 

23.  Fraudulently  assigned  property— At- 
tachment of,  sustained — Defendant  applied  to 
set  aside  a  writ  of  attachment,  levy  and  sheriff's 
return  on  the  ground  that  this  Court  had  no 
jurisiliction  because  the  property  attached  was 
Hot  that  of  the  defendant,  having  been  conveyed 
to  a  trustee  in  trust  for  his  wife  some  time  pre- 
viously. AlEdavits  were  read  in  rejily  to  show 
that  tlie  trust  deed  was  made  fraudidently  and 
ill  contemplation  of  insolvency. 

The  rule  was  discharged  with  costs. 

Thompson  v.  Ellis,  4  R.  &  G.,  307. 


24.    Fraudulent  convcyance- 
See  ASSIGNMENT,  IV-BILLS  OF  SALE- 
DEED -MORTGAGE. 


2.;.    Fraudulent    removal    of  goods   to 

avoid  diatrefla — H.  &  M.  McDonald  made  a  bill 
of  sale  of  persimul  property,  dated  July  ;"),  1876, 
conditioned  for  the  payment  of  §400  on  the  Sth 
July,   1877,  and  became  insolvent  '24th  April, 

1  1877.     On  the  8th  June,  1877,  to  avoid  leaving 

i  the  property  on  the  premises  as  a  lien  for  rent, 
which  accrued  on  the  l'2th  June,  the  insolvent's 
assignee  and  the  holder  of  the  bill  of  sale,  after 
each  advertising  a  sale  of  the  property  to  which 
the  other  objected,  agreed  that  it  should  be  sold, 
reserving  the  proceeds  for  the  adjudication  of  the 

I  Court. 

'  //(/(/,  that  the  holder  of  the  bill  of  sale  was 
entitled  to  the  ])rooeeds,  which  were  less  than 
tlie  amount  due  him,  but  that  the  decree  should 
be  without  costs,  as  the  controversy  had  arisen 
out  of  an  asserted  right  to  sell,  which  did  not 
exist  in  either  party. 

Ill  re  0' Midi  in  d-  Johnittone,  R.  E.  D.,  157. 


26.    In  insurance— 


See  INSIBANCE. 


27.    Misrepresentation,  not  made  fhlsely 

or  with  intent  to  defraud,  &c.— In  an  action 
on  a  promissorj'  note  given  in  payment  for  land 
purchased  by  defendant  from  jdaintiff",  the  de- 
fendant relied  on  an  alleged  misrepresentation 
as  to  the  quantity  of  land  contained  in  one  of 
the  lots  sold. 
I  //(/'/,  there  being  no  evidence  that  the  mis- 
}  representation,  if  made  at  all,  was  made  falsely 
or  with  intent  to  deceive  the  defendant,  or  to 
induce  him  to  do  that  which  he  otherwise  would 
not  have  <lone,  that    the  defendant  could    not 

succeed. 

H!l!  V.  MrL.od,  5  R.  &  G.,  '280. 


28.    Parties  in  pari  delicto— In  an  action 

for  money   had    and   received,    the    defendant 
pleaded,  by  way  of   set   ofl^,  a  promissory  note 
i  given  by  plaintiff  to  defendant.     From  tlie  evi- 
j  dence  it  was  apparent  that  the  transactions  be- 
tween the  parties  out  of  which  the  present  cause 
;  of  action  arose  were   intended  to  defraud   the 
creditors  of  plaintiff,  and  that  plaintiff  and  de- 
fendant were  in  pari  delicto. 
j      Held,  that  such  being  the  case,  the  plaintiff 
'  should  not  be  aided  bj*  the  Court  in  enforcing 
his  contract,  and  the  verdict  for  him  must  be 

set  aside. 

Blak-e  v.  Sfeirari,  2  X.  S.  D.,  70. 


591 


FRAUD  AND   MISREPRESENTATION. 


5Q9. 


29.  Pleading- Fraud  most  be  pleaded— 

Verdict  —  Where  a  verdict  waa  found  on  the 
ground  of  fraud,  but  there  waa  no  plea  of  fraud 
on  the  record,  the  Court  set  the  verdict  aside. 
Unless  fraud  be  specially  pleaded  no  evidence 
can  be  given  of  it. 

Hill  V.  Archhold,  1  Old.,  452. 

30.  Pleading  —  Frand  reUed  on  as  de. 

fence — Must  be  pleaded  — Where  fraud  is  re- 
lied on  as  a  defence,  or  as  an  answer  to  defen- 
dant's pleas,  it  must  in  all  cases  be  specially 

pleaded. 

McOre(for  v.  Patternon,  1  Old.,  211. 

31.  Pleading— Fraud— To  be  adduced  In 

evidence  must  be  pleaded  —  In  an  action  of 
ejectment  defendant  pleaded  an  ccjuitable  plea 
setting  out  certoin  deeds  asjthe  links  in  his  title. 
At  the  trial  plaintiff  sought  to  attack  one  of  these 
deeds  on  the  ground  that  it  was  witliout  con- 
sideration and  a  fraud  on  third  parties. 

Held,  that  plaintiff  should  have  replied,  alleg- 
ing the  fraud,  and  not  having  so  pleaded  could 
not  adduce  it  in  evidence. 

Kiniuar  v.  Ilarrimi,  2  N.  S.  D.,  78. 

32.  Pleading  —  Sufflcient  declaration  In 

action  for — Action  for  deeiiit  on  representation 
with  regard  to  the  sale  of  a  mining  property. 
The  declaration  alleged  that  the  representations 
were  made  by  defendant  falsely  and  fraudulently 
to  induce  plaintiff  to  act  upon  them,  and  tliat 
having  acted  upon  them  the  plaintiff  had  thereby 
suffered  loss  and  damage. 

Held,  on  demurrer,  tliat  the  declaration  was 
sufficient,  although  it  did  not  contain  any  allega- 
tion that  the  defendant  knew  the  representation 
so  made  by  him  to  be  false. 

McKay  v.  Campbtll,  2  N.  S.  D,,  475. 

33.  Pleading  to  raise  question  or  f^aud 

in  action  on  policy  of  insurance— Plaintiffs  were 
insured  by  (lefen<lant  company  on  machinery  in 
a  spool  tactory.  At  the  time  of  the  application 
there  was  machinery  in  the  building  for  the 
manufacture  of  excelsior,  which  was  not,  how- 
ever, used  for  tliat  purpose  till  some  months 
after  the  policy  was  effected,  thougli  it  was  so 
used  before  the  renewal  of  the  policy,  and  noth- 
ing was  said  to  the  insurers  about  such  use. 
The  jury  found,  in  answer  to  questions,  that 
the  more  haztirdous  risk  of  the  two  was  the 
manufacture  of  spools,  and  that  the  risk  was 
not  increased  by  adding  the  manufacture  of 
excelsior  to  that  of  spools  in  the  same  building. 
The  Court  refused  to  set  aside  the  verdict  for 
plaintiffs  entered  on  these  findings,  and  held 
that,  even  assuming  that  there  was  a  warranty 


against  the  manufacture  of  excelsior,  it  could 
not  be  relied  on  under  the  plea  that  the  occu- 
pation of  the  premises  waa  not  truly  described, 
and  that  plaintiffs  had  represented  that  said 
building  waa  occupied  as  a  spool  factory,  where- 
as in  fact  the  same  was  occupied  in  a  much  more 
dangerous  and  hazivrdous  manner,  to  wit,  &c. 

McDonald,  C.  J.,  dUsetUimj. 
Moir  et  at.  v.  The  Soverevjn  Fire  Insurance  Co., 

6R.  &G.,5<r_>; 

6  C.  L.  T.,  541. 

On  appeM  to  the  Su/treme  Court  of  Canada, 

Held,  reversing  the  judgment  of  the  ("oiirt 
below,  tliat  as  the  manufacture  of  excelsior  was 
in  itself  a  hazardous  business,  the  iiitroductioii 
of  it  into  the  building  insured  woulil  avoid  the 
policy  under  the  clause  in  the  policy  of  in.iur- 
ance  whicli  declared  :  "  In  case  the  above  de- 
scribed premises  shall,  at  any  time  during  the 
continuance  of  this  insurance,  be  appropriated 
or  applied  to,  or  used  for  the  purpose  of  carry- 
ing on,  or  exercising  therein  any  trade,  business 
or  vocation  denominated  hazardous  or  extra- 
hazardous .  .  .  unless  otherwise  speeially 
provitled  for,  or  hereafter  agreed  to  by  tliis 
company  in  writing,  or  addeil  to,  or  indorsed 
on  this  policy,  then  this  policy  shall  beeoiue 
void." 

Aho,  that  it  would  so  avoid  the  policy  even 
if  the  jury  were  riglit  in  their  tinding  tlial  the 
manufacture  of  spools  was  more  hazardous  tluiu 
that  of  excelsior. 

Held,  also,  that  the  addition  of  the  manufac- 
ture of  excelsior  to  that  of  spools  in  tlie  said 
premises  was  a  cliange  material  to  the  risk,  and 
avoided  tlie  policy  under  the  clause  which  de- 
clared :  "Any  change  material  to  the  risk,  and 
within  the  control  or  knowledge  of  the  assured, 
shall  avoid  the  jwlicy,  as  to  tlie  part  atfeeted 
thereby,  unless  the  change  is  promptly  notitied 
in  writing  to  the  company  or  its  local  agent." 
SocertiijH  Fire  Iwmixince  Co.  v.  Moir, 

14  8.  C.  R.,(il-.'; 

7  C.  L.  T.,  129. 

34.  Rectification  of  error  In  deed  caused 

by  party  seeking  to  defeat  deed — The  Court 

will  rectify  an  error  in  a  deed  where  it  has  l)een 

caused  by  the  fraud  of  the  party  seeking  to  defeat 

the  deed. 

Peart  v.  PeaW,  2  Old.,  73. 

35.  Seplevin  for  goods  obtained  by  false 

representations — Where  an  action  of  replevin 
was  brought  for  goods  sold  by  plaintiffs  to  de- 
fendant, and  there  was  evidence  to  justify  the 
Judge  who  tried  the  cause  without  a  jury  in 
coming  to  the  conclusion  that  the  defendant  had 


593 


FRAUDS,  STATUTE  OF. 


594 


ma<le  false  representations  to  the  plaintiifs  oa  to 
his  solvency,  knowing  them  to  be  false,  the  Court 
refused  to  disturb  the  judgment  for  plaintiifs. 

HoHKOck  et  al.  v.  Xeilty,  1  R.  &  <i.,  388. 

36.  Representation  as  to  credit  —  In  an 

iiction  on  the  case  for  false  representations  by 
defendant  of  the  credit  of  one  Higgins,  plain- 
tiff's only  evidence  as  to  defendant's  knowledge 
of  the  (losition  of  Higgins  consisted  of  the  fact 
that  he  liad  a  trust  dcect  from  Higgins  of  all  his 
real  estate,  and  the  statement  of  Higgins  that 
(k'feiidiint  was  aware  of  his  position.  The  goods 
were  jjiirchased  on  a  three  months'  credit,  and  it 
WHS  ill  evidence  that  at  the  end  of  the  time 
Higgins  had  more  tlian  sufficient  property  to 
meet  the  claim.  The  Court  refused  on  appeal 
to  reverse  the  judgment  for  dcfen<lant. 

TupjTer  V.  Crowe,  .3  R.  &  (J.,  261. 

37.  Shipping  — Ownership  of- W.  8.  and 

I{.  &  F.  S.  procured  supplies  from  parties  in  St.  j 
John,  N.  15.,  and  Halifax,  N.  8.,  to  lie  used  in  the  ' 
construction  of  a  vessel,  which,  after  her  comple- 
tion, was  registered  in  the  name  of  B.  S.  ;  to  the 
parties  in  St.  John,  W.  S.,  and  to  those  in  Hali- 
fax, 15.  S.,  whose  name  alone  appeared  upon  tiie 
register,  was  represented  as  owner.  Actions  were  i 
brought  liy  the  St.  John  creditors  against  W.  S. 
for  tlie  goods  supplied  on  his  credit,  and  judg-  | 
ments  obtained,   and  executions  issued,  under  I 
whicli  the  vessel  was  levied  upfm  and  sold  as  the  j 
property  of  W.  S.     While  the  vessel  was  in  cus- 
tody of  Sheriff,  and  prior  to  the  sale,  ]{.  S.  exe- 
cuted a  liill  of  sale  in  the  form  re(juired  by  the 
.■\ct  to  tlie  plaintiff,  one  of  the  Halifax  creditors, 
who  immediately  had  the  same  registered,  and  ■ 
received  formal  delivery  of  the  vessel  from  B.  S. 
The  Slieriff  sold  all  the  interest  of  W.  S.  in  the 
vessel  to  defendant,  and  delivered  a  bill  of  sale 
<if  tiie  same,  which  was  not  recorded.     Plaintiff  | 
thereupon  brought  an  action  of  replevin,  which 
came  on   for  trial,  but,  in  consecjuence  of  the 
lengtli  of  the  cause  and  insufficient  time,  could 
not  be  concluded.     At  the  suggestion  of  the  pre- 
siding Judge  a  rule  was  entered  into,  by  which 
it  was  agreed  that  a  verdict   should   pass  for 
plaintiff,  with  power  to  the  Court  to  determine 
and  draw  the  same  inferences  from  the  evidence 
that  a  jury  might  do,  and  either  enter  a  verdict 
for  plaintiff  or  defendant  or  order  a  non-suit,  as  : 
they  might  think  fit,  and  also  with  power  to 
determine  the  equities,  if  any,  and  to  order  a  sale 
of  the  vessel  and  payment  of  the  proceeds  into  > 
Court  to  abide  the  judgment.  i 

HM,  first,  per  Sir  W.  Young,  C.  J.,  Des-  j 
Barres  and  Dodd,  JJ.  (Johnstone,  E.  J.,  ! 
doubting,  and  Wilkins,  J.,  dissenting),  that  B.  i 


S. ,  being  the  regiatered  owner,  woa  not  preclud- 
ed, by  the  levy  of  executions  against  W.  S., 
from  giving  a  V)ill  of  sale  to  the  plaintiff  and 
transferring  to  the  latter  a  possession  sutiicient 
to  support  replevin. 

A  /so,  under  the  authority  of  Lane  v.  Dorsay, 
1  Old.,  .57<'>,  that  replevin  would  lie. 

.Second,  per  Sir  W.  Young,  C.  J.,  Johnstone, 
K.  J.,  and  Des13arrc8,  J.,  that  the  registry  of 
the  vessel  being  only  prima  facie  evidence  of 
title,  and  there  l)eing  evidence  of  fraud  and  col- 
hision  between  W.  S.  and  B.  S.  in  regard  to  the 
registry  in  order  to  defeat  the  creditors  of  tlie 
former,  that  under  the  e(juitable  powers  con- 
ferred by  tlie  rule  the  parties  affected  by  the 
fraud  should  be  restored  to  their  just  relations 
to  the  vessel,  and  the  St.  John  antl  Halifax 
creditors  be  admitted  to  a  ratable  participation 
in  the  proceeds. 

!'()•  Wilkins,  J.,  that  to  draw  inferences  of 
fraud,  unless  they  are  irresistible  in  their  char- 
acter, for  the  purpose  of  annulling  a  registered 
/rrima  facie,  title  to  a  British  ship,  is  beyond 
any  judicial  competency. 

Ptr  Dodd,  J.,  that  fraud  was  not  sufficiently 
proved  to  avoid  the  prima  facie  title  conferred 
by  the  registry. 

Uraiit  V.  Rohtrtson,  2  N.  S.  D.,  247. 


FRAUDS,  STATUTE  OF. 

1.  Agreement  to  give  property  In  payment 

of  debt — A  verbal  agreement  between  A.  and 
B.,  that  B.  shall  take  a  net  in  payment  of  his 
debt,  although  intended  as  a  final  agreement  by 
the  parties,  is  not  a  sufficient  compliance  with 
the  Statute  of  Frauds  to  transfer  the  property 
toB. 

McKenzie  v.  Robertson,  James,  2.S4. 

2.  Agreement  to  work  mine  for  share  of 

profits— No  interest  transferred  within  Statute 
— Plaintiff  made  an  oral  agreement  with  ii.,  the 
owner  of  a  gold  claim,  to  work  a  portion  of  the 
claim,  plaintiff  receiving  two-thirds  of  the  pro- 
fits after  paying  all  expenses.  Defendant,  act- 
ing as  Sheriff  of  the  County  of  Hants,  levied 
upon  and  sold  certain  gold  taken  out  of  the 
mine  by  plaintiff,  on  an  execution  against  G. , 
plaintiff  having  brought  trover  for  the  gold  so 
taken,  and  a  verdict  having  passed  in  his  favor, 
ffeld,  that  under  the  agreement  to  work  the 
mine  for  a  share  of  the  profits,  no  interest  in  the 
mine  was  transferred  to  plaintiff  within  the 
meaning  of  section  four  of  the  Statute  of  Frauds. 
McDonald  v.  Geldert,  3  N.  S.  D.,  551. 


595 


FRAUDS.  STATUTE  OF. 


5P3 


8.  Agreement  too  Tague  and  uncertain—  !  a  flxerl  rate  per  nimnm,  with  a  Bharc  of  prntitA 
Dnft'iiiliiiit  ilrt'U-  lip  mill  plucuil  in  tiie  iiamls  of  |  on  u  Huparatf  Wraiich  of  tlio  buMiiifHH.  On  FiOi- 
Allan,  a  real  cstatu  agent,  a  nieninraniluni  in  tlio  [  riiary  14tli,  IS77,  tli'fondant  asked  for  ami  dIi- 
followinj,'  form  : — "  I  will  sell  ten  acres  of  land  tained  a  fortnight's  leave  of  almence,  when  an 
(iui'liKJing  tlie  water  lots),  as  alfo  two  and  three-  aix'ounting  was  gone  into,  and  |)laintitr  gave  cle- 
(juarter  acres  of  land  Itelonging  to  Judge  .John-  fenilant  his  prf)niis«ory  note  (which  lie  after- 
atone  adjoining, for  the  diiniof  four  hiimlreil  and  wards  paid)  for  the  halunce  of  iiis  salary  ii|i  to 
thirty  dollars  per  acre,  eipial  to  !«."»4S'.'. ,"»(»,  or  '  the  end  of  the  year,  A|)ril  1st,  ISTT-  Defendaiu 
■tl.'lTO  I'Js.  (id.,  and  un  which  sum  I  will  allow  did  not  return,  and  ]ilaintitr  lirought  actinii  fiir 
you  a  coinniissioii  of  two  percent."  The  memo-  non-fultiliiient  r)f  Ids  contract  of  service  and  fur 
ranihiin  then  specified  the  terms  of  sale.     Allan    money  had  and  received. 

entered  into  a  written  agreement  with  plaintill'  Ililil,  tiuit  although  tlio  plaintitl'  could  n<il 
for  the  sale  of  the  laud  on  the  terms  mentioned,  recover  on  llie  count  for  non-fultilment  of  ,\f. 
Tiie  agreement  not  liei  ig  carried  out,  piaintitl'  fendant's  contract,  as  that  was  not  to  he  per- 
brought  a  suit  for  specitic  performance,  setting  formed  within  a  year,  he  could  recover  on  tiir 
out  tile  two  agreeiiieiits.  money    couiil,  as    tiie   defendant    had    recciviil 

//</'/,  (1)  that    the   memorandum   handed  to  '  payment  for  services  to  lie  performed  witliin  a 
Allan   was  a  power   to   sell   on   the  prescrihed    few  weeks  from  the  time  of  giving  the  note, 
terms  without  restriction  as  to  jmrchaser,  if  tlie    which  services  defendant  did  not  reniler. 
terms  could  lie  olitained.  U'iiv  v.  Li/ioii,  3  R.  iV  ('.,  •.'()!). 

(■J)  That  ])laiiitiH"s  riglit  to  specific  perform- 
ance rested  entirely  on  the  dcfeii<lant's  iiieiiio-  :  6.  FraUds,  Statute  Of,  Wlll  UOt  aid  dofen- 
randum  ;  that  defendant  was  no  party  to  the  dant  in  perpetration  of  a  fraud— Plaint  iff  and 
ngreeineiit  entered  info  hy  Allan,  and  that  when  defcinlaiit  agreed  orally  that  defendant  should 
the  latter  lirought  into  the  agreement  anything  advance  the  cinisidcration  money  and  lake  ii 
that  went  heyond  the  memorandum  he  exceeded  ;  deed  of  certahi  lands  for  plaintitl',  who  .should 
his  authority.  j  have  fourteen  months  to  rcjiay  thi  c  iiisideratiini 

(.3)  'J'hat  the  agreement  could  not  lie  ini-  '  liionej-,  defendant  occupying  the  lands  ineiui. 
ported  into  the  meiiiiirandiiin,  and  the  latter  '  while,  in  lieu  of  interest  for  the  money  advanced, 
lieing  of  too  vague  and  uncertain  a  character  and  that  defendant  should  execute  a  lioml  tn 
to  satisfy  the  Stalate,  and  not  suHiciently  des-  1  re-convey  the  premises  to  j)laiiititr  on  payincnl 
Grilling  file  lands,  specific  performance  could  not  of  the  consideration  money,  defendant  timk 
he  enforced.  the  deed,  liut  <lid  not  execute  the  1m mil,  v,\-m 

fforuxhij  V.  Jolni-^loui ,  3  N.  S    1).,  I,  I  into  possession  of  the  land  and  made  iniprnve- 

'  ments  upon  it  ;  and  when  jdivintifl',  wilhiii  the 

4.  Contrart  of  sale  of  buildins  resting  ]  time  stipulated,  tendered  the  considcrafi-iii 
on  pillars  — 3rd  R.  S..  c.  lis,  as.  3  and  4— I  money  and  demanded  a  reconveyance  of  the 
Cf.  5th  R.  S.,  c.  91,  88.  5  and  9— Action  to  re-  i  jiremises,  refii.sed  to  execute  a  conveyance, 
cover  the  price  of  a  certain  Iniilding,  and  plea  claiming  the  premises  as  his  own,  under  his 
that    the  contract  of  sale  was   not  in  writing,  ^  deed. 

signed  liy  the  ])laiiitit}'.  j      J/i/tl,  that  the  Statute  of  Frauds  could  nut  he 

The  plaintitl"  gave  in  evidence  that  the  build-  i  set  up  as  a  defence,  to  aid  the  defendant  in  the 

ing  in  (juestion  was   erected  on  land  to  which    perpetration  of  a  fraud,  but  that  the  ])laintiH" 

neither  of  the  parties  claimed  title,  and  that  it    was  entitled  to  a  re-conveyance  of  the  prciiiises. 

rested  on  stone  pillars,  wliich  the  plaintiff  built,  i  Ame.ro  v.  Amvro,  R.  K.  1).,  fl. 

//( Id,  insuflicient  to  give  the  building  the  legal 

character  of  a  chattel,  and  that  therefore  the      7.    Growing  trees— Defendants  purcliased 

contract  was  void  under  the  third  clause  of  the  a  quantity  of  growing  trees,  and  gave  in  pay- 
Statute  of  Frauds.  Had  the  plaintiff  shown  ;  ment  therefor  their  promissory  note,  which, 
that  the  building  rested  on  the  pillars  solely  by  after  passing  through  the  hands  of  two  nther 
its  own  weight,  without  being  affixed  to  the  pil-  holders,  and  after  it  became  due,  was  indorsed 
lars  or  connected  with  the  soil,  the  ca.se  would  to  the  plaintiff  for  value  and  without  notice, 
still  have  been  within  the  fourth  section  of  the  I  To  an  action  by  plaintiff  to  recover  the  amount 
{Statute.  1  of  the  note,  a  defence  was  raised   under  the 

McKenzie  v.  McDonald,  2  N.  S.  D.,  11.    Statute  of  Frauds  on  the  grounds, — 

1.     That  the  trees  were  goods  and  merchan- 

5.  Contract  not  to  be  performed  within  dise,  and  there  was  no  receipt  or  acceptance  of 
a  year— Defendant,  previous  to  the  1st  April,    the  goods  and  no  part  payment. 

1870,  engaged  with  plaintiff  by  parol  as  clerk  at !      2.     That  the  contract  having  been  made  in 


5fl7 


FRAUDS.  STATUTE  OF. 


508 


reference  to  growing  treos,  rci|uirc(l  a  note  or 
nicnuiriincliiin  in  writitij,', 

llilil,  tlmt  tiie  ('ontriii't  for  the  sale  of  the 
trecH  had  no  connection  with  nny  intereot  in 
IiiikI. 

Mi'l)oii,  !(1,  C.  J.,  (/isseiitimj,  on  tlie  ground 
tlmt  the  contract  was  one  on  which  the  original 
|i;iVtt'M  could  not  recover  under  the  Statute  of 
FraiiilH,  and  th(!  plaintiirHtood  in  tlie  Haiiie  jHmi- 
tioii,  tlie  note  having  been  indorsed  to  him  after 
iimtiirity. 

Mrlii/osh  V.  Mil.ioil  ft  n/.,  ti  K.  k  (i.,  128  ; 

(i(",  L  T.,  441). 

H.  (iiiarantpe  -  Plaintlir  brought  action  In 

ls7.'!  tM  (.iiforce  payment  of  .'*4(«)  and  interest  for 
l,iiiil  allij.'ed  to  have  been  purchaxed  hy  dufen- 
ililllt.  the  deed  lieillg  made  out  to  defenilaUt'H 
limllicr  ancl  left  with  a  tiiiid  parly,  to  lie  deliv- 
I'l'cd  til  the  defendant  on  his  handing'  him  a  note 
fni  the  purchase  money,  signed  liy  himself  and 
his  ludther.  Defendant,  in  his  answer,  contra- 
(lictecl  all  the  statements  in  the  writ  and  set  out 
tliiit  the  sale  was  made  ilirectly  to  his  lirother. 
tliiuigli  he  admitted  that  lie  woiilil  have  assisted 
him  hy  jiiiniiig  in  a  note  for  the  purchase  money. 
Till'  videiicc  was  contlicting,  luit  the  alleged 
a^'reeiiieiit  having  lieen  made  in  liS(i(i,  the  Court 
lii'lil  that  the  delay  in  suing  was  itself  a  liar  tri  . 
the  iictiiiii,  if,  as  plaiiititl'  contended,  the  agree- 
iiifiit  was  to  lie  considered  as  the  original  under- 
taking of  the  defendant,  whilc;  on  the  other 
hainl,  if  it  was  to  lie  viewed  as  i  guarantee,  the 
Statute  of  Fraiuls  prevented  a  recovery. 

ll'dtiniiaii  V.   (IV//,  R.  K.  1).,  lit?. 

9.   Lease  —  TwO'thlrds    of    the   annual 

value -I )efend!' 'It's  wife  entered  into  an  agrce- 
iiiiiit  to  lease  fifim  plaintitl'  a  portion  of  a  house 
at  a  stiimlated  rental,  for  the  jieriod  of  one  year, 
the  tenancy  to  commence  on  the  first  -May,  ISS.'i. 
At  the  time  the  agreement  was  entered  into  the 
premises  were  in  the  occupation  of  a  third  party,  , 
who  leiiiaiiied  in  possession  a  <lay  or  two  after 
-May  Ist,  and  liefore  the  date  rm  which  defen- 
ilam's  tenancy  was  to  commence,  defendant  told 
plaintitl"  that  he  could  not  move  in  on  account  of 
his  wife's  ilhiess,  hut  that  he  would  make  good 
any  loss  plaintitl'  might  sustain  in  conseijuence. 

11/(1,  i„r  McDonald,  C.  J.,  that  there  was  a 
lea.se  or  estate  at  will  created  lietween  the  par- 
ties which  would  enable  the  plaintiff  to  recover 
the  quarter's  rent,  though  there  might  be  doubt 
wiic'tlier  it  would  support  a  promise  to  compen- 
sate him  for  any  loss  he  might  sustain  in  re-let- 
ting the  premises. 

•^'>o,  Ritchie,  J.,  concurring,  that  the  point 
that  the  lease  was  bad,  the  rent  reserved  not 
having  been  proved  to  be  two-thirds  the  annual  i 


value  of  the  property,  was  not  open  to  defen- 
dant, not  iiaving  lieen  taken  in  the  Court  below. 
I'tr  .McDonald,  .1.,  .Smith,  .1.,  concurring,  that 
there  was  no  proof  of  authority  to  ilefendant's 
wife  to  make  the  contract,  and  that  the  |>roniise 
by  defendant  to  pay  any  loss  incurred  in  re- 
{  letting  the  premises  was  not  a  Hutlieient  ratili- 
cation  to  turn  the  agreement  into  a  lease. 
I      i-l/vo,  that,  assuming  the  wife's  authority  to  be 
!  proved,  there  was,  at  most,  an  agreement  for  a 
lease. 

.•I/.10,  that  the  omission  to  prove  the  propor- 
tion of  the  rent  reserved  to  the  yearly  value  of 
the  property  was  fatal  to  j)laintitl"s  case. 
/•<-»•.,•  V.  f. ')•///(■»,  •_'(!  \.  S.  H.,  (S  R.  &  C),  5'i. 

10.    Parol  ovidenrc  of  trust  may  be  siven 

,  consistently  with,  -I'laintitf  in  his  bill  or  writ, 
set  out  that  John  lilair  granted  certain  lands  to 
defendant  by  deed,  which  though  absolute  in 
terms,  was  given  to  secure  !*(»(«(  advanced  liy 
defendant  to  creditors  of  said  grantor,  and  that 
defendant  at  the  execution  of  the  deed,  promised 
to  reeonvey  to  the  grantor  on  jiayment  within 
three  years  of  the  amount  dut;  ;  that  the  estate 
of  the  grantor  hail  become  vested  in  ]ilaiiitirt', 
who  had  tendered  the  .•?(!()()  and  oU'ereil  to  pay 
any  balance  found  to  be  dui-  defendant,  who  re- 
fused to  acce]it  the  money  or  execute  a  deed. 
Defeiiclant's  answer  set  up  a  parol  trust  to  pay 
in  full  a  debt  due  by  the  grantor  to  defendant 
and  a])])ly  the  surjilus  ratably  among  five  other 
creditors  ;  that  the  amount  thus  due  was  more 
than  the  jSOOd  tendered,  and  defeinlant  otiered 
to  reeonvey  the  land  on  payment  of  the  debts  as 
security  for  which  it  was  given.  A  memoran- 
dum signed  by  the  grantor  was  ilelivered  to  the 
defendant  at  the  time  of  the  conveyance,  wit- 
nessing that  "  the  sums  attached  to  the  follow- 
ing names"  (the  five  creditors  reft.'rred  to  by  the 
defendant  in  hi.->  answer)  "are  incluilcd  as  the 
consideration  money  of  .lohn  lilair  to  Robert 
Chambers."  The  creditors  referred  to  were  at 
the  time  ])res.'=ing  Rlair  for  payment,  and  gave 
him  time  in  consideration  of  this  conveyance. 
The  claims  of  several  of  them  were  bought  at  a 
reduced  rate  bj'  Blair's  son-in-law  in  Blair's  in- 
terest. 

Hdd,  that  there  was  a  consideration  moving 
from  the  several  creditois  nameil  in  the  memor- 
andmn  to  151air,  and  a  resulting  trust  in  favor  of 
all  the  said  creditors  ;  that  parol  eviilence  of 
this  trust  could  be  given  consistently  with  the 
Statnte  of  Frauds;  and  that  defendant  held  the 
land  in  trust  for  the  payment  of  his  own  debt 
and  the  debts  of  the  other  creditors  at  their  full 
amount,  notwithstanding  the  purchase  of  the 
same  at  a  reduced  sum,  which  was  held  to  be  a 


599 


GAMING. 


60O 


matter  lolely  Iwtwfcn  those  crctlitori  and  their 
assignee. 

I'a(fe  V.  Chambtri,  1  R.  &  0.,  232. 

11.    Reaclndlns  agreenent  nnder  — An 

agreement  for  the  salo  of  Innils  good  under  the 
Statute  of  Frauds  may  bo  rescinded  before 
breach  of  it,  by  parol,  provided  tlieru  is  a  total 
abandonment  of  tliu  wliole  contract,  and  not 
merely  a  partial  waiver  of  gome  of  its  terms  ;  nor 
does  the  validity  of  such  rescission  depend  on 
the  existence  of  a  consideration. 

Bare/ay  v.  Proax,  R.  K.  I).,  .317. 

1*2.    Sale  or  land  —  Part  performance  — 

Defendant  anil  three  others,  proprietors  of  dyke 
lands  in  Onslow,  u^'reed  to  imild  a  breaitwater 
in  front  of  their  lands  for  the  purpose  of  reclaim- 
ing certain  land  covered  by  navigable  water. 
The  works  having  been  destroyed  by  fresluts, 
defendant,  in  consideration  of  the  reimyment  to 
him  by  M.  of  the  money  expended  by  him, 
agreed  to  transfer  to  M.  his  interest  in  the  un- 
dertaking. M.  haviiig  assented  and  pai.l  the 
amount  stipulated,  operations  were  renewed 
in  18.")1,  and  shortly  after,  as  the  residt,  land 
began  to  form.  In  iHtt.-),  M.  conveyed  his 
interest  in  the  new  formation  to  plaintiff,  wiio, 
with  the  others,  built  a  <lyke  aroun<l  it,  and  re- 
ceived a  (|uarter  of  the  grass.  Defendant  allow- 
ed the  plaintiff  and  the  other  jwrties  to  expend 
their  labor  in  making  the  property  valuable 
without  objection  for  eleven  years  after  tiie 
agreement  made  with  M.,  when  for  the  first  time 
he  claimed  an  interest  ui  tlie  new  land  allotted 
to  M.  and  conveyed  by  him  to  the  plaintiff,  and 
committed  the  tresjMVSs  complained  of.  It  was 
argued  on  behalf  of  defendant  that  the  action  of 
trespass  could  not  lie,  as  tlie  fee  was  still  in  him, 
the  transfer  to  M.  being  invalid,  as  having  lieen 
made  by  parol,  and  there  being  no  conveyance 
in  writing,  as  required  by  the  Statute  of  Frauds. 
Hthl,  that  though  the  Statute  of  Frauds  re- 
quires the  transfer  of  an  interest  in  lands  to  be 
made  in  writing,  the  parol  agreement  for  the  sale 
or  transfer,  having  been  partly  perfoiniec!,  was 
enforceable  in  eijuity,  there  being  an  equitable 
count  requesting  the  defendant  to  execute  to  the 
plaintiff  a  conveyance  of  all  his  claim  or  interest 
in  the  lands  in  question. 

Mahon  v.  McCully,  1  N.  S.  D.,  32,3. 

13.   Verbal  agreement  for  sale  of  land - 

Where  the  consideration  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  con- 
sideration was  not  expressed  on  the  face  of  the 


note,  the  maker  cannot  ret  up  ai  a  defence  the 
want  of  consideration. 

Gray  v.  Whitman  ft  a/.,  2  Thorn.,  1.57. 

14.   Verbal  agreement  fbr  lale  of  land 

inadmiuible  t"  ahow  consideration  — Where 
a  note  was  given  to  plaintiff  in  part  piiyinviit  of 
purchaso  money  of  lands,  under  an  agrevinvnt 
I  for  sale  and  purchase  not  reduced  to  writing, 
j  hf/il,  that  evidence  could  not  \hs  given  of  the 
'  consideration,  and  that  plaintiff  could  not  recover 
j  the  amount  of  the  note. 

Ji/nck  V.  (Umier  ft  al,,  2  Thorn,,  l.'i"  ; 
Lindmy  v.  Zwirker,  2  N.  S.  1).,  KM). 

[NoTK. — In  the  argument  of  Gray  v.  IVhitman, 
which  wasjdecided  after  li/ack  v.  Oenmr  it  al., 
the  former  case  is  distinguished  from  tliu  latter 
by  the  fact  of  the  maker  of  the  note  going  into 
(Missession.  The  Court  in  the  former  merely 
said  that  it  was  clear  there  must  be  judgment 
for  the  plaintiff.] 


FREIUHT- 
Sce  COMMON  CARRIER8- 
INSl'RANCE- 
SHIPPING. 


FRIVOLOUS  PLEA8- 
^ee  PLEADINGS. 


FRl'CTUS  NATURALES- 
Cannot  be  seized  under  execution— Grass 

still  growing  and  not  yet  cut  does  not  come  under 
the  description  of  goods  and  chattels,  and  can- 
not be  seized  and  sold  under  execution. 

Late  V.  McLean  etal.,2  N.  S.  D.,  69. 


GAMING. 
1.   Horse  race  Involving  infraction  of 

law — Plaintiff  and  D.  G.  entered  into  an  agree- 
ment to  trot  a  race  on  the  Wentworth  Road, 
for  the  sum  of  850  a  side,  between  the  plaintiff's 
horse  "  Charley  "  and  a  horse  owned  by  W.  G., 
known  as  "  Royal  Harry."  The  money  was  de- 
posited in  defendant's  hands  as  stake-holder. 


601 


GAS. 


G02 


UAS. 
1.    dan  Compan)  not  renponAlble  to  ocru- 

pierH  of  property  for  in)urien  ciiUHed  by  detec- 
tive rtttinga  not  the  property  of  the  Company 
— Tli«!  fiiclH  wuii-  lliu  mum'  an  in  />(«/;/.  v,  llali- 
j'lix  Utu  Co.,  'A  N.  .S.  1).,  .'W.'t,  Iml  in  tiiiM  i'umo  ih« 
plaiiititr  wiiH  tliu  ti'iiunt  (if  tiif  liiiimii,  luul  liin 


III  an  nctinn  l)r(mgiit  l>y  plaintitT  in  tliu  County  { 
Cnnil  III  rucovt-r  tlii^  ntaUfH,  it  ap|Kjareil  that  tlie 
Wrntwiii'th  Knail  wuh  a  puliliu  Htrui't  within  tiiu 
llmitHipf  the  town  of  WiniUor. 

//«/(/,  tliat  till!  ('(intiiiot  WttH  taintt'il  witli  illu-  ' 
^'iklity  anil  iniNipalilu  <if  liuing  unforcoil,  an  lifing 
miuii'  in  violation  of  thu  pitiviMiuiiH  of  .">th  K.  S., 
c,  4S,  H.  7,  which  niakcM  it  pi'nal  to  drivo  a  horse 
\\\.  full  H|K!L'd  on  thu  pi;lilii!  street  or  highway  of   ulaiin  was  foi    injiirioii  to  liiit  wife  and  damage 


iiiiy  tiiwn  or  village. 

t^miin,   wlietlier  the  Imperial  Act,  l.'i  (Jco. 
II.,  ('.  It),  Ih  in  force  in  tluH  I'rovinue. 
Ihmu  V.  Chamhers,  •_>()  N.  .S.  U.,  (S  U.  Ad.), :«)» ; 

»C.  L  T.,  7. 

9.  Horse  race  involving   Infraction  of 

law-- Where  a  uontract  \»  ma<le  to  run  a  race, 
involving  an  infraction  of  law,  and  o  .e  of  the 
(lepoititorH,  heing  a  party  to  the  wager,  notitioH 
the  Htakeholdor  while  the  money  depoHited  aa 
u  .stuke  iH  in  IiIh  hands  and  lieforv  the  race  is 
run,  nut  to  pay  it  over  to  the  other  party  to  the 
wiijjt'i-,  the  stakeholder  in  paying  over  the  money 
tliivH  so  in  his  own  wrong,  and  is  respoiiHilile  for 
it  til  the  party  so  notifying,  or  his  personal  repre- 
sentatives, wlio  may  bring  an  action  to  recover 

it, 

Byerion  v.  Derhy,  1  R.  &  C,  13. 

3.  Recovery  from  stakeholder— An  action 

■wiiH  lii'ought  to  recover  $U)0  placed  by  plaintiff 
in  the  hands  of  the  defendant  for  the  purpose  of 
Letting  on  a  boat-race.  The  bet  was  made  in 
tlie  plaintiff's  name,  but  the  money  was  contri- 
liutcil  liy  several  parties  in  small  sums,  and 
although  no  arrangement  was  Uiade,  plaintiff 
stated  in  his  evidence  that  the  several  parties 
were  interested  to  their  respective  amounts,  and 
if  he  had  won  they  would  have  expected  their 
money,  and  he  would  have  been  obliged  ii.  pay 
them.  I'laintilf  countermanded  the  bet,  before 
the  defendant  parted  with  the  money,  and  there 
was  no  clear  evidence  to  show  that  defendant,  as 
Letting  agent  for  plaintiff,  had  become  bound 
before  the  liet  was  so  countermanded. 

Hthl,  that  the  contributors  could  not  sue 
jointly,  but  that  plaintiff  was  entitled  to  recover 
Imck,  not  the  whole  amount,  but  only  his  own 
share  of  the  money  deposited,  for  which  judg- 
ment must  be  entered  in  the  Court  below. 

i^ow  v.  Harriwjton,  3  R.  &  G.,  325; 
3  C.  L.  T.,   44. 


GARNISHEE- 
Sit  ATTACHMENT. 


to  his  own  goods  resulting  from  an  explosion. 
Some  further  evidence  was  introduced  to  show 
that  plaintitf  had  drawn  the  attention  of  the  de- 
fendants' servants  to  the  <uinilitiiin  of  the  piped 
some  time  befort!  the  explosion,  and  that  they  had 
assured  hini  that  they  were  all  right  and  that 
there  was  no  danger.  The  evidence  of  contribu- 
tory negligence  on  the  part  of  plaintiff  was 
stronger  than  in  Dodge's  case. 

lltlil,  McCully,  .1,,  lUnMiiiiinij,  that  the  notice 

given  even  if  as  contended  for  was  not  suthcient 

to   bind   the   defendants,   and    the   verdic*    for 

plaintiff  must  l>e  set  aside. 

Tremaiiie  v.  Hali/ax  l/an  Co.,  3  N.  S.  I),,  3(«). 

a.   Llabllltr  of  Gas  Company -PlalntlflT's 

wife  was  injured  by  an  exphision  of  gus,  caused 
by  some  defect  in  the  gus  pil>c,  in  the  room  of  u 
house  rented  and  occupied  by  plaintitf.  The 
room  had  previously  been  usetl  as  an  otKce  for  a 
factory  adjoining,  and  received  its  supply  of  gas 
from  the  factory.  The  factory  had  for  some 
time  l>cen  unoccupied,  and  the  gas  turned  off 
by  the  (>as  Company.  Subse(|uently  and  shortly 
prior  to  the  accident,  gas  was  turned  on  again  at 
the  factory. 

J/tld,  that  the  (!as  Company  was  not  liable  for 
the  injury,  not  being  liable  for  the  condition  of 
the  gas  pipes  inside  of  any  private  building. 
Tremainc  v,  Halifax  Gax  Light  Co., 
2  R.  &  C,  394. 

3.    Liability  of  Gas  Company  for  iiOuries 

by  explosion  —  The  occupants  of  a  factory  and 
an  adjoining  house  had  the  defendants  put  gas 
into  both  and  in  order  to  do  so  it  was  necessary 
to  have  a  branch  pipe  from  the  company's  nuiiu 
down  a  private  lane  leading  to  the  buildings. 
The  only  stop  cock  Iwtween  the  main  and  the 
buildings  was  at  the  street.  The  buildings  be- 
coming vacant  the  company  removed  their 
meters,  turned  off  the  gas  and  carefully  closed 
up  all  the  pipes.  Subsequently  plaintiff  pur- 
chased the  premises,  and  at  his  request  defendants 
turned  on  the  gas  again.  While  the  house  had 
been  vacant  the  pipe  in  one  of  the  rooms  had 
been  cut  or  wrepched  off  by  some  unknown  per- 
son and  left  open  so  that  when  the  gas  was  put 
on  it  had  access  into  the  building  and  coming  in 


GO.T 


GOOD   WILL 


fiC* 


i-iintHct  with  a  \\nUt  an  I'XploNiiin  occtirri'il  iluni- 
a^iii^  tlii^  liiiilrliii^',  and  fur  tliix  |ilaliititTI>ri>ii|{lit 
hin  ai'tioii.  The  Htuti*  of  th«  |ii|iu  wan  kiniwii 
four  hoiirit  Iti'foro  thu  i'X|iliiiii(iti  to  tho  wifu  of 
thu  oct'iipici' of  the  luiuiiv,  Tlut  i1i'fi>ii<lanl  odin- 
paiiy  hail  nnthiii)^  to  iln  with  tht<  llttiii>,'N  iiiNiiUi 
thi>  liiiililiii^H  aH  they  lK'lnii){i'il  to  the  oi'dipicr, 
ami  tlicir  (inly  itiity  waH  to  hi'u  that  thu  pipcH 
were  properly  Heoiireii  when  thu  luvlerM  weru 
taken  away  ami  thiN  they  hail  done,  The  learn- 
ed J  iid^e  iiiHtriictud  thu  jury  that  tiiu  plaintifT 
waH  not  entitled  under  thu  uvidencu  to  recover 
liut  they  found  a  verdict  for  him  neveitheluHH. 
//(/(/,  that  thu  venlii!t  Mhoidd  he  Met  UMidu. 
JJodf/e  V,  The  Halifax  (la^  Com/Kiinj, 

;»  N.  S.  I).,  li-jr,. 


GENERAL    I88VE- 
^'•e  PLEADINGS. 


eiFT. 


1.  Donatio  mortis  caosa-Donor  eserclB« 

ing  acts  of  ownership  after  gift— The  delivery 
of  tho  key  of  a  chest  containing  money,  with 
the  ex[trc8sion,  "All  the  money  in  that  chest 
I  give  to  you,"  when  the  donor  subsequently 
exercises  acts  of  ownership  over  the  chest,  will 
not  constitute  a  donatio  mortix  causa. 

In  re  I'Jstate  of  Hart  man,  2  Thorn.,  62. 

2.  Gin  by  wife -A  wife  In  the  presence, 

and  with  the  ajtparent  assent,  of  her  husliand, 
gave  a  gold  ciiaia  (wliieh  he  had  previously  j)ie- 
sented  to  lier)  to  a  third  parly,  in  trust  for  their 
child,  an  infant  six  years  (dd.  I 

Hi/il,  a  valid  gift  intir  riroi  landing  the  hus-  i 
hand,  and    that  he  cfiuld  not   after  the  wife's 
death    recover    possession   of    it   in   un  action 
against  the  third  party,  either  in  his  own  right 
or  as  the  guardian  of  the  child. 

Tancrtd  v.  O'Mullin  et  al.,  2  Old.,  145. 

8.    Inter  vivos— P.  gave  a  young  colt  to 

H.  P.,  who  lived  in  his  family,  but  there  was  no 
evidence  of  any  delivery  to  H.  1*. ,  or  of  any  pos- 
session or  use  of  the  colt  by  him.  On  the  other 
hand,  P.  continued  to  feed  and  use  the  colt  lis 
his  own  until  his  death  ;  previously  to  which  he 
gave  a  bill  of  sale  of  it,  among  other  things,  to 
the  plaintiff.  Some  time  after  the  death  of  P., 
H.  P.  sold  to  the  defendant,  against  whom  the 
plaintiff  brought  trover.  The  jury  having  found 
in  favor  of  t)ie  gift  to  H.  P. , 


I  //(/(/,  on  a  iiioliim  for  a  new  trial,  thiil  tin' 
faetH  nielitioiieil  wiie  imt  HUtliiiillt  to  conHtiliiti' 
a  gift  inlir  rirtm,  and  that  the  .hnlge  hIioiiIiI 
huvu  told  thu  jury  that  no  title  paMMed  to  H,  p,, 
instead  of  leaving  it  to  them  to  establiHli  Hie 
validity  of  the  gift. 

Mrt'arlant  v.  t'linn,\i'S.  S.  I).,  I»|. 

4.  Ulft  Inter  vlToa -Action  of  trover  ogalnit 

adminiatrator— W,  C,  thu  masier  of  a  iiar< 
chnnt  vessel,  made  a  voluntary  gift  to  the  pliijn. 
I  titr,  his  daughter,  of  a  H]iy  glass,  Iinniediutuly 
afterward  hu  proceeded  upon  a  voyage  and  wiih 
lost  at  sea.  defendant  obtained  possessinn  nf 
thu  glass  from  the  plaintitf,  promising  to  rt'turii 
it  to  her,  but,  having  been  appointed  adniiiiiii- 
trator  of  \V.  C,  of  whom  hu  was  a  creditor,  in- 
■tead  of  returning  the  glass  he  had  it  appraisod 
and  sold  it.  Plaintiff  thereupon  brought  trover, 
to  which  defendant  pleaded  (Ist)  denying  the 
conversion ;  (2nd)  denying  the  property  in  tho 
plaintifT;  and,  (.trd)  alleging  that  thu  glass  was 
thu  property  of  the  deceased,  of  whom  defuiid. 
ant  at  tho  time  of  the  alleguil  taking  and  run- 
version  was  administrator,  and  that  as  sucli  he 
took  and  retained,  &c.  The  jury  found  in  favor 
of  plaintiff  for  $V)()  damages. 

//rW, /»r  Wilkins  and  DesBarres,  JJ.,  DoiM, 
J.,  concurring,  and  Sir  \Vm.  Young,  C.  J,,  uiul 
McCully,  J.,  diMninlinii,  that  plaintiff  hiiiig 
in  possession  at  the  time  of  the  taking  hcul  a 
clear  right,  even  without  title  shown,  to  iiiiun- 
tain  thu  action  against  the  defendant,  who  wns 
a  mere  wrong  doer.  That  the  defendant  wag 
not  a  creditor  within  thu  meaning  of  l.'Uh  Kliz.. 
c,  .'),  but  that  even  had  he  been  srch,  he,  being 
administrator,  coidd  not  as  such  creditor  be 
permitted  to  impugn  the  gift,  even  if  the  estate 
were  insolvent,  and  other  creditors  uere  proved 
to  exist.  That  could  oidy  be  done  by  the  latter 
or  some  one  of  them  acting  for  himself. 

Chtrb:  V.  Fnlkrton,  2  N.  S.  1),,  348.. 


GOOD  WILL. 
Of  business  —  Where  a  party  enters  Inta 

a  written  agreement  under  seal  for  the  sale  for 
a  certain  amount  of  all  his  right,  title,  share  and 
interest  in  a  certain  business,  evidence  is  inad- 
missible to  prove  a  prior  verbal  agreement  for 
the  sale  of  tho  "good  will"  of  the  business  for 
a  sum  in  addition  to  the  amount  so  specified  in 
the  written  agreement. 
Lindky  v.  Lacty,  11  L.  T.,  27.3,  distinguished, 
Axmtin  v.  Boone,  2  Old.,  149. 


m  GRANT.  GOO 

(iOVRRNMENT  RAILWAYS  ACT.  4.    ConflirtlnK  xronU    In  an  action  of 

fjiMiiiu'iit,  |iliiiiititrM  clainu'il  uiiilfr  ii  unint  from 
tlu'  Ckiwm,  which  iiiiMNi'il  ill  177;).      'I'huiU'Hirij)- 
tion  ill  the  ^riiiit  iiiohnUMl  thu  Ijmil  in  i|ut.'itlii>i) 
ill  thu  lutioii.      iK'fi'inliiiit  (U'livcil  hiM  title  frmii 
agniiif,  which  jMiMHcil  in  17H4,  uikI  in  wliich  tho 
litml  til  lit'  tiiki'ii  iinili'r  it  wun  ilcHiiilKMl  um  lying 
to  ihf  iK.rih  of  tho  liinil  in  thu  grunt  of  177;{. 
I  '\'Uv   luinl  takuii  |M)KNi'NMioii  of  tiiulvr  thu  latti-r 
gniiit  wiiH  within  thu  litiuM  of  thu  forniur  grunt. 
Diiu  of  thu  original  griintuuH  uiulur  thu  grunt  of 
1784  (.'onvoyt'd   hy  rnututi  and  IioiiiiiIm  thu  lot, 
which  hu  hud  drawn  at  thu  divitiion  of  thu  grant, 
to  a  iiiirchuHur  who  convuyuil  liy  thu  huiiiu  iiiutcH 
;  and  lioiindii  to  thu  grandfather  of  the  dufemlunt. 
Defendiint'H  title  wum  hy  duHcent  from  thin  grand- 
father.    Original  grantee  had,  in  171W,  occupied 
I  and  (Uiltivated  a  jiortionof  land  in  <liH[iiitc.    All 
I  the  Hul»<e(|iient  itosBeMHom  hud  also  occupied  and 
I  cultivated  u  portion.     Pari   within  the  metes 
and  hounds  was  still  in  u  wilderness  state. 

//(/(/,  such  an  adverse  posMCMsion,  even  of  tho 
part  in  a  wildernusB  state,  us  to  bar  claim  under 
grant  of  177<'i. 

LawKon  ft  al.  v.  Whilwnti, 

1  Thom.,  (2nd  Ed.),  208. 


Acts  l(«Hli  c.  'ii,  >.  109,  Dom.  -  The  Do* 

tiiiniiiM  (iovurniiu'iil  Kailwayn  ,\c',  Acts  of  iMHl, 
i\  '.'.'1,  *.  W),  provides  that  "  No  ucticpii  mIiuII  hu 
liiiiiij.'lit  agaiiiKt  any  otliccr,  eiiiploycu  or  servant 
of  tluMlcpartmeiil  (of  Kailways  and  CaiialM)  for 
;iii\thiiig  iloiiu  hy  virtue  of  his  otiice,  service  or 
iiM|i|iiyineiit,  except  within  three  months  after 
till'  act  committed,  and  upon  one  month'H  pre- 
vidiiH  notice  in  writing, 

DefeiiduntM  untured  into  a  contract  with  the 
Crciwii,  represented  hy  tho  Minister  of  Railways 
mill  Cuiiuls,  for  the  construction  of  a  liranch  of 
llic  Iiitcivoloniiil  Railway  at  Dartmouth,  X.  .S., 
.iiiil  ill  tiie  prosecution  of  their  work  under  tho 
ciiiitiiict  entered  upon  the  pluintitF's  land. 

All  action  having  heen  lirought  uguinst  defen- 
iliiiitH  fur  hreaking  and  entering, 

Htltl,  that  defendants  were  employees  within 
tlio  nicaning  of  the  Act,  and  entitled  to  thu  pro- 
tectiiin  jjiveii  therein. 

McDonald,  C  J,,  diM/ttnt'.uij. 

K'n:-Hf  v.  Oakfi  it  al,,  20  N.  .S.  R., 

(8  R.  &(.;.),  30. 


GRANT. 


1.  (sphaltum  an  exception  In  certain 

grants  —  AHphaltuin  is  includeil  in  the  excep- 
tidii,  ill  certain  royal  grants  in  the  Province  of 
New  liniiiswick  of  "  all  coals,  and  also  all  gold, 
silver  and  other  mines  and  minerals." 

Thu  words  "mines  and  minenilM  "  in  the  ex- 

cejition  are  to  be  understood  in  their  popular 

iiinl  ordinary  and  not  in  their  scientific  meaning. 

OV>/(i  /•  V.  Ilax  Com /III  III/,  James,  72. 

2.  Boimdarics,  ^c— When  the  position  | 

"f  tiic  iialui'iil  boundaries  desciilied   in  a  grant 
liiiiiicit  he  ascertained,  and  there  is  no  proof  of  j 
the  original  survey,  the  limits  of  the  grant  can-  1 
not  he  extended   by   implication    l)eyond    the  i 
courses  and  <listance3  mentioned  in  it. 

Tmniuij  V.  Sttniix,  1  Old.,  .SOG. 

3.  Conditions  —  Forfeiture  for  non-per- 
formance of  conditiona  of  grant — Evidence 
—The  Crown  sought  to  forfeit  two  grants  for 
non-pcrformimce  of  conditions  as  to  improve- 
ments, &c, ,  but  none  of  the  evidence  on  which 
tiie  Crown  relied  went  further  back  than  tifty 
years,  wliile  the  grants  were  ninety  years  old. 

Hdd,  that  the  evidence  was  not  sutBcient  to 
forfeit  the  grants. 

Queen  v.  /i!o&i?i  et  al.,  4  R.  &  G.,  91. 


5.  Crown  may  attack,  for  excess— Mon- 
uments referred  to  control  quantities  —  Sev- 
eral Crown  grants  from  which  piaintiff  deduced 
his  title  purported  to  convey  a  specified  number 
of  acres  described  us  eontuined  within  lines  com. 
mencing  ut  a  fixed  point  und  running  specitied 
distances  to  other  points  indicated  by  marked 
trees  and  other  monuments  which  appeared  upon 
plans  annexed  to  and  referred  to  in  the  body  of 

the  grants. 

//</'/,  that  the  monuments,  being  ascertained, 
must  control  thu  iiiiantities  puijiorted  to  be 
granted  and  the  ilistances  mentioned  in  the 
grants,  notwithstanding  the  fact  that  the  num- 
lier  of  acres  included  in  that  case  would  be  enor- 
mously in  excess  of  the  number  which  tlie  grants 
purported  to  give.  The  least  objectionable  of 
all  dithciilties  is  to  make  (luantities,  whether  too 
great  or  too  small,  yield  to  actual  monumbnts 
on  the  ground. 

J'lr  .Sir  \V.  Young,  C.  J. — Tlie  grants  might 
have  been  attacked  by  the  Crown  for  excess, 
but  in  the  absence  of  such  proceeedings  thu  land 
included  could  not  be  regranted  to  a  stranger. 
Under  the  usage  of  the  Court  parol  evidenc&iXt. 
admissible  to  show  the  actual  position  and  sur- 
veys of  lands  included  in  grants  of  wilderness 
and  woodlands. 

Davison  v.  Bctijamin,  3  N.  S.  D.,  474. 

6.  Exclusive  right  of  fishing  on  navigable 

arm  of  sea  cannot  be  granted  by  Crown— The 


607 


GRANT. 


60 


Crown  cannot  grant  tlie  waters  of  a  navigable 
arm  of  t)ie  sea,  so  as  to  give  a  right  of  exclusive 
fishing  therein. 

Meimer  v.  Fannimj,  2  Thorn. ,  97. 

7.  Falsa  demonstratio  —  Natural  monu- 
ment controls  description — Tiie  description  in 
a  grant  of  lanils  gave  one  of  tlie  boundaries  as 
follows ;  "  Thence  along  sliore  to  a  point  due 
nortli  of  a  small  pond  six  chains  from  an  old 
fort."  This  pond,  ))y  admeasurement  shortly 
before  trial,  was  found  to  be  at  its  eastern  end 
luue  and  at  its  western  end  eleven  chains  fron> 
the  fort. 

Hi-ld,  that  this  discrepancy  must  be  rejected 
as  fa/sa  demoiinfratio,  and,  the  pond  being  a 
natural  monument,  its  actual  position  sliould 
control  and  correct  the  description  in  the  deed. 

Wilkins,  J.,  dnhitantc. 

Archibald  et  al.  v.  Morrison,  1  N.  S.  D.,  272. 

8.  Forfeiture  of  grant  for  non-perform- 
ance of  conditions  therein — The  Crown  sought 
to  forfeit  two  grants  for  non-performance  of 
conditions  as  to  improvements,  &o.,  but  none 
of  the  evidence  on  which  the  Crown  relied  went 
further  back  than  fifty  years,  while  the  grants 
were  ninety  years  old. 

Held,  that  the  evidence  was  not  sufficient  to 
forfeit  the  grants. 

Queen  v.  Rohin  et  al.,  4:  R.  &  G.,  91. 

9.  From  the  Crown  —  Condition  making 

void  for  non-performance  —  Necessity  of  in- 
ouest  of  office  —  Where  plaintiff  claimed  under 
a  grant  from  the  Crown,  containing  a  condition 
that  grant  shall  be  void  if  not  settled  on  within 
a  certain  time, 

Held,  that  a  subsequent  grant  from  the  Crown 
for  the  same  loais,  under  which  defendant  held, 
was  void,  there  having  been  no  inquest  of  office 
previous  to  the  issuing  of  such  subsequent  grant. 

Wheelock  v.  McKown,  1  Thorn.,  (1st  Ed.),  15 ; 

(2nd  Ed.),  41. 

10.  Grant  to  corporation  —  Mistake  in 

name — Where  a  grant  was  made  to  "  The  Gov- 
ernors, President  and  Fellows  of  King's  College, 
at  Windsor,  in  the  Province  of  Nova  Scotia," 
and  an  action  was  brought  by  "  The  Governors 
of  King's  College,  Nova  Scotia"  (the  real  name 
of  the  corporation), 

Held,  that  the  plaintififs  might  recover. 
Governors  of  Kiiuj's  College  v.  McDonald, 

2Thom.,  106. 

11.  Latent  defect  —  Cannot  be  remedied 

by  parol  evidence— A  latent  defect  in  a  grant 
cannot  be  remedied  by  parol  evidence. 


In  order  to  correct  an  error  in  the  descriptive 
part  of  a  grant  by  parol  evidence,  tlie  evidence 
must  be  such  as  to  leave  no  doubt  of  the  intention 
of  the  grantor. 

lirennock  v,  Fraser,  Jame.i,  17s. 

12.  Of  sea  shore  by  Provincial  Govern. 

ment  —  Held  not  to  pass  title  —  Plaintiff  re- 
ceived a  grant  from  the  Provincial  (Jovernnient 
of  the  shore  of  a  narrow  cove  or  creek  at  .St. 
Margaret's  Bay.  The  cove  or  creek  was  one  of 
a  number  of  small  inlets  abounding  on  the 
shores  of  the  Bay  not  having  the  name  or  cliar- 
acter  of  a  public  harbor,  but  had  been  tised  on 
several  occasions  by  small  vessels  for  the  purpose 
of  loading  lumber. 

Held,  on  the  authority  of  Holinan  v.  Green, 
6  S.  C.  R.,  707,  thai  no  title  passed  under  tiie 
grant. 

Fader  v.  Smith,  6  R.  &  G.,  4.S3! 
6  C.  L.  T.,  536. 

13.  Of  water  lot— The  grantee  of  a  water 

lot,  bounded  on  the  shore,  is  entitled  to  take  up 
to  high  water  mark  ;  and  that  line  of  his  grant 
changes  with  the  gradual  encroachment  or  re- 
tirement of  the  sea. 

Esson  V.  Mayberry,  1  Thom.,  (1st  Ed.),  144; 

(2nd  Ed.),  186. 

14.  Parol  evidence  admissible  to  show 

the  actual  position  and  survey  of  lands  included 
in  grants  of  wilderness  and  woodlands. 

Davison  v.  Benjamin,  3  N.  S.  D.,  p.  476. 

15.  Possession— Crown  cannot  grant  land 

held  adversely-  -Where  there  is  a  plena  ])os'ie.siio 
of  land  against  the  Crown,  particularly  under 
color  of  title,  the  Crown  must  re-invest  with 
the  possession  before  it  can  grant. 

When  a  grant  to  A  contained  a  recital  that  tiie 
land  had  been  formerly  set  off  to  B,  and  wliere 
a  party  was  in  possession  under  agreement  to 
purchase  from  B, 

Held,  that  the  grant  was  void,  the  Crown  not 
being  in  possession. 

Held,  also,  that  defendant's  attornment  to  the 
lessor  of  plaintiff  was,  under  the  circumstances, 
inoperative,  defendant  being  under  the  impres- 
sion that  Miller  had  a  title  which,  from  facts 
dehors  the  grant,  and  unknown  to  the  defendant 
at  the  time,  it  appeared  he  had  not. 

He/d,  also,  that  the  returning  to  defenilant 
a  promissory  note,  given  by  him  to  lessor  of 
plaintiff,  payable  upon  getting  a  good  title  to  tlie 
land,  was  not  a  sufficient  consideration  on  wliich 
to  found  promise  to  relinquish  the  possession. 
Miller  V.  Lanty,  Thom.,  (1st  Ed.),  132; 
(2nd  Ed.),  161. 


600 


GRANT. 


GIO 


16.   Possession  -  erant  b}  Crown  or  land      20.    Possession  under  allotment-Where 

held  adveraely— lilt  Crown  cannot  grant  lands,  i  party  entered  into  possession  of  land  under  agree- 
of  which  a  subject  has  been  in  adverse  posses-  I  nieiit  to  purchase  from  one  rei)resenting  liiiiisflf 
sioii  for  twenty  yuars,  without  Jirst  re-investing  |  as  owner  under  an  allotment  of  ancient  date, 
itself  witli  the  j,-/js8es8i(.n  by  office  found.  The  [  //,./,/,  that  his  title  was  good  as  against  a 
Imperial  Act,  L'l,  Janjes  I.,  chap.  14,  is  in  force  !  grantee  holding  under  grant  from  the  Crown, 
in  tliis  I  rovuice.  dated  four  years  after  his  entry,  and  setting  out 


Smy'h  V.  MiDonald  et  al.,  1  Old.,  274. 


fact  of  allotment  having  been  made  to  individual 
of  same  name  as  the  person  froin  whom  defend- 
ant purchased. 

Mi/In-  V.  Laiily,  1  Thorn.,  (1st  Kd.),  l.S'2; 

(•2nd  Ed.),  101. 


U.   Possession  —  Grant  of  Crown  land 

where  held   idversely  to  the  Crown — In  1807  ! 

the  Ctowii  gi^viitc  1  to  one  Scott  a  lot  of  land,  of 

wliieh  defendant  had  been  in  adverse  po.-^session 

for  ten  years,  and  in  1870  Scctt  conveyed  said         21.     Presumptlons  as  tO— ACtlon  Of  tres- 

kiid  to  defendant  by  deed,  which  was  duly  re-  '  P'"*s  against  a  .Surveyor  of  Highways  for  cutting 
cdiiled.  In  May,  18.57,  plaintitf  recovered  '  *  ditch  through  plaintiff's  land  to  carry  ott' 
judgment,  which  was  duly  recoi'ded,  against  water  from  the  highway,  and  for  tilling  up 
.Scott,  under  which  the  land  in  disjjute  was  sold,  another  ditch  in  liie  highway,  and  thereby 
iiiid  imrcluiseil  by  plaintitl's  at  the  .Sheriff's  sale.  |  causing  water  to  flow  over  plaintiff  's  land. 

HfJd,  that  the  adverse  possession  of  tlefendant  Defence. — To  the  rirst  charge  :  That  the  for- 
(liil  not  prevent  the  Crown  from  granting  the  I 'ner  owner  of  plaintiff 's  land  helped  to  construct 
liiiid  to  Scott,  as  such  possession,  in  order  to  '  the  highway,  and  agreed  to  the  cutting  of  the 
hiive  such  effect,  must  be  defined,  actual  and  i  ditch  for  carrying  off  the  water  from  the  high- 
continuous  for  twenty  years  ;  and  that  although  ■  ^vay  ;  that  the  ditch  had  lieen  in  use  for  that 
.Scott's  deed  to  the  defendant  was  duly  recorded,  i  purpose  for  thirty -seven  years  ;  that  occasional 
the  land,  although  acquired  after  the  judgment  \  ol)structions  during  that  time  had  been  removed 
recorded  in  I8,")7,  was  bound  by  the  judgment ' '>y  tbe  Surveyor  for  the  time  being;  that  the 
the  moment  it  was  granted  to  .Scott.  ditch  followed  the  natural  course  for  the  flow  of 

LouUbury  Land  Co.  v.  Tutty,  4  R.  &  ti.,  401.  I  w-ater  from  the  highway  ;  and  that  the  cutting 

complained  of  was  a  clearing  out  of  obstructions 

18.  Possession  -  Grant  Ol  land  held  ad-  which  plaintiff  had  placed  in  the  ditch  a  short 
versely— Office  found — Where  the  fatlier  of  the  ! '''"°  before.  The  defence  to  the  second  com- 
(kfendiint  had  a  block  of  wilderness  land,  to  '  pli"i>t  was,  that  the  other  ditch  was  a  ditch 
wliioh  he  had  no  title,  surveyed  in  J840,  but  I ''1""B^'''*^  t''^  highway,  too  deep  to  be  safe,  and 
built  no  house  except  a  house  for  lumbering,  I '''"''  •'l'^  defendant,  as  such  Surveyor,  partially 
miule  no  fences,  and  only  cleared  ten  acres,  and  I  filled  it  up,  as  he  had  a  right  to  do.  At  the  trial 
iifterwards,  in  1845,  conveyed  the  land  by  a  t''^  Judge  excluded  the  evidence  of  defence  to 
recorded  deed  to  his  two  sons,  one  of  whom  was  ^l^^  ^^^^  complaint,  and  a  verdict,  under  his 
the  defendant,   who  ploughed   some,   but   not    direction,  passed  for  plaintiff. 

mucli,  iijjon  it,  and  the  land  so  conveyed  was  field,  first,  that  the  long  use  of  the  drain 
iifterwtird  granted  by  the  Crown  in  two  lots  by  through  plaintiff's  land  was  evidei'ce  from  which 
grants  dated  1854  and  1868,  to  a  party  from  '<■  jmy  miglit  infer  a  dedication  ))y  deed,  though 
whom  the  plaintiff'  derived  title,  and  to  the  there  was  evidence  of  an  assent  to  such  use  more 
plaintiff  himself  respectively,  I  than  twenty  years  ago.    Second,  that  the  defen- 

H(ld,  that  the  possession  and  the  deed  of  the  ,  '1'^"''  '^^^'l  "•  i"'fe'liti  as  such  .Surveyor,  to  close  or 
defendiuit  did  not  debar  the  Crown  from  so  '  alter  the  ditches  along  the  highway,  as  a  private 
granting  the  land  without  office  founil.  >  proprietor  of  land  in  the  same  situation  might 

Smyth  V.  McDonald,  1  Old.,  274,  and  Gibboiui    Verdict  set  aside  accordingly. 
V.  Kilday,  distinguished  and  reviewed.  The  following  propositions  were  affirmed  :  — 

CoMin  V.  Chapi>ell,  I  R.  &  C.    40.        That  as  to  water  not  flowing  in  defined  chan- 

i  nels,  the  flowing  does  not  warrant  the  presump- 

19.  Possession  —  Necessity  of  ejecting  tion  of  a  grant. 

party  in  adverse  possession  before  Crown  can  That  as  the  owner  of  the  high  land  cannot 

grant— W  hen  a  person  is  in  possession  of  Crown  '  collect  such  waters   in  drains  and   precipitate 

and,  the  Crown  cannot  grant  the  land  so  occu-  them  on  the  land  of  another  proprietor  IhjIow,  a 

pied  to  another,  without  first  ejecting  the  occu-  grant  may  be   presumed  where  this  has  Ijeen 

'   '  ■  done  as  of  right  for  twenty  years,  and  this  not- 

Hliss  and  Hill,  JJ.,  dUsentiwj.  withstanding  the  Prescription  Act,  c.  100,  R.  S., 

Scott  V.  Henderxon,  2  Thorn.,  115.  4th  series,  sec.  28. 

20 


611 


GREAT  SEAL  OF  THE  PROVINCE. 


6i2 


That  evidence  that  use  began  prior  to  twenty 
years  by  consent  is  merely  evidence  against  the 
presumption  of  a  grant,  and  may  be  met  by 
counter-evidence  that  the  use  was  afterwards  as 
of  right,  Ac,  for  twenty  years. 

That  the  consent  by  parol  to  the  establish- 
ment of  an  artificial  course,  made  more  than 
twenty  years  ago,  is  not  conclusive  that  the  sub- 
sequent twenty  years'  use  was  not  by  grant, 
because  such  a  right  could  not  be  conferred  by 
parol  alone. 

That  a  dedication  to  the  public  of  an  ease- 
ment may  be  inferred  from  the  like  circum- 
stances as  warrant  the  inference  of  a  grant  in 
the  case  of  a  private  person  enjoying  such  ease- 
ment. 

That  the  surface  and  ditches  of  a  highway 
may  be  altered  without  liability  to  an  action  by 
the  adjacent  proprietors. 

Harrinon  v.  Harrison,  4  R.  &  G.,  3.38. 


2'i.    Presumption  of— A  lot  of  lanA  was 

allotted  in  1767  to  J.  B.,  as  appeared  by  the 
drawing  or  allotment  book  filed  in  the  Registry 
of  Deeds  for  the  County  wherein  the  lot  was 
situate,  and  the  accompanying  plan,  by  a  card 
alleged  to  have  been  drawn  by  the  said  J.  B.  in 
1767  (the  date  of  the  allotment  book),  the  card 
containing  a  description  of  the  lot  correspoiuliug 
with  that  in  the  allotment  book  ;  and  by  the 
certificate  of  the  Registrar  of  Deeds  given  by 
the  Registrar  to  J.  B.,  and  proved  to  be  marked 
with  the  Registrar's  initials.  This  card  and  the 
certificate  were  proved  to  have  been  continu- 
ously and  consecutively  in  the  possession  of  J. 
B,,  and  those  claiming  under  him,  and  were  pro- 
duced by  the  plaintiff's  at  the  trial.  The  block 
of  land  allotted  by  the  allotment  book  contained 
in  the  whole  180,000  acres,  being  the  whole 
township. 

Nothing  was  known  of  this  book  but  its 
antiquity,  and  the  fact  of  its  general  acceptance. 
A  grant,  which  appeared  to  be  a  grant  of  confir- 
mation passed  in  1784,  conveying  71,406  acres  of 
the  above  180,000.  This  emn*  .ocited  a  previous 
grant  in  1765  of  the  whole  180,000  acres,  and 
the  grantees  under  this  latter  grant  (of  whom  J. 
B.  was  not  one)  were  all  also  grantees  under  the 
previous  grant,  and  their  title  and  possession 
were  confirmed  by  this  latter  grant.  This  latter 
grant,  however,  stated  that  the  grant  of  1765  had 
not  l)een  accepted,  nor  taken  out  of  the  secre- 
tary's office.  The  plaintiffs  were  H.  J.  B.  and 
S.  B. ,  and  they  traced  their  title  from  J.  B.  as 
follows :  Deed,  J.  B.  to  J.  (J.  B.  ;  Deed,  J.  «.  B. 
to  H.  J.  B.  (one  of  the  plaintiffs)  ;  Deed,  from 
H.  J.  B.  (the  last  named  plaintiff)  to  S.  B.  (the 
other  plaintiff).     S.  B. ,   it  appeared,  had  con- 


veyed the  locus  to  one  D.  R.,  and  the  deed  to 
D.  R.  had  been  executed  and  recorded  before 
action  brought.  The  plaintiffs'  counsel  at  the 
trial  alleged  in  opening  that  the  action  was 
brought  for  the  benefit  of  D.  R. 

M.,  a  Surveyor,  had  acted  as  agent  for  the 
plaintiffs,  or  one  of  them,  or  those  under  whom 
they  claimed,  and  the  defendants  had  been  put 
in  possession  by  him  fifteen  years  before  action 
brought.  The  defendants  did  not  attempt  at 
the  trial  to  prove  title  in  themselves,  but  relied 
wholly  on  the  alleged  weakness  of  the  plaiiitifTit' 
title. 

I/eld,  the  Court  being  at  lil)erty  to  draw  the 
same  inferences  as  a  jury  might  —  First,  that 
under  all  the  circumstances  a  grant  of  the  lot 
to  J.  B.  in  or  before  1765  might  be  presumed. 
Second,  that  as  the  possession  of  the  defendants 
was  not  adverse  to  the  plaintiffs,  it  did  not  pre- 
vent the  operation  of  the  deed  from  S.  IS.  to 

D.  R. 

Boutilier  et  al.  v.  Knock  et  al.,2  Old.,  77. 

23.   Question  of  title— This  eanse  came 

before  the  Court  on  a  rule  granted  by  the  Judge 
who  tried  the  cause,  with  the  consent  of  counsel, 
to  dispose  of  a  question  of  title  depending  uix>n 
the  construction  of  certain  grants.  The  decision 
tunied  wholly  upon  matters  of  fact,  and  the  con- 
struction of  certain  grants. 

Smith  et  al.  v.  Smith  et  at.,  1  R.  &  C,  '29. 


Crowing— 


GRA8S- 

See  FRVCniS  NATVRALE8. 


GREAT  SEAL  OF  THE  PROVDiCE. 
Tbe  old  Great  Seal  of  the  Province - 

that  in  use  since  18.37— used  on  patents  ap- 
pointing Queen's  Counsel  and  regulating  prece- 
dence at  the  Bar  in  1876,  ceased  to  be  the  Great 
Seal  of  the  Province  on  the  transmission  of  a 
new  Great  Seal  to  the  Lieutenant-Governor  in 
December,  1869,  though  not  adopted  or  pro- 
claimed by  the  Lieutenant-Governor  in  Council. 
James,  J.,  dUnenlimj,  Wilkins,  J.,  agrrmg, 
but  expressing  the  opinion  that  the  presence  ot 
a  Great  Seal  on  the  document  in  question,  affixed 
by  the  proper  officers,  raised  a  conclusive  pre- 
sumption as  to  its  validity. 

In  re  Precedence  of  Ritchie,  Q.  C, 

2  R.  &  C,  450. 


613 


HABEAS  CORPUS. 


614 


On  appeal  to  the  Snprtme  Court  of  Canada, 

The  judgment  below  in  this  case  was  ntlirmed, 

but  the  question  of  the  validity  of  the  Great 

Seal  of  the  Province  was,  on  the  argument  of 

the  appeal,  declared  to  have   been  settled  by 

legislation,  40  Vic,  c.  3,  l)om.,  and  40  Vic,  c 

2,  N,  S. 

Lenoir  v.  Ritchie,  3  S.  C.  R.,  676. 


GVARANTEE- 
Ste  CONTRACT. 


upon  a  sale,  would  produce  four  or  five  times  as 

much  as  their  share  of  the  rental, 
//*/(/,  that  the  discretionary   power  of   the 

Court  was  wisely  exercised. 
Held,  aJuo,  that  the  discretionary  power  of 

the  Court  to  order  a  sale  was  not  determined 
;  by   the  appointment  of  a  guardian,  and   that 

where  the  guardian,  who  was  the  mother  of  the 

infants,  was  opposed  to  the  sale,  and  neglected 
;  or  refused  to  find  security  as  reiiuired  by  3rd 
I  Revised  Statutes,  cap.  124,  sec.  51,  the  Court 
.  had  power  to  remove  such  guanlian,  and  substi- 
I  tute  in  her  stead  a  suitable  person  as  next  friend 

to  tile  the  necessary  bond  and  effect  the  sale. 

In  re  Estate  of  Lawlor,  2  N.  S.  D.,  153. 


GUARDIAN. 

1.  or  lanattc— Suit  by,  in  his  own  name 

—In  an  action  by  and  in  the  name  of  the  guar- 
dian of  a  lunatic,  for  a  debt  due  the  lunatic,  the 
defendant  did  not  go  into  his  defence,  contending 
that  the  action  was  wrongly  brought,  and  judg- 
ment in  the  County  Court  was  given  for  plain- 
tiff. On  appeal,  the  Court  allowed  plaintiff  to 
amend,  and  defendant  contending  that  there 
was  a  defence  on  the  merits,  a  new  trial  was 
ordered,  but  without  costs,  first,  because  the  new 
trial  was  an  indulgence  to  defendant,  as  the 
Court  might  in  such  a  case  give  judgment  for  the 
plaintiff  on  the  amended  record  ;  second,  be- 
cause, had  the  defendant  entered  on  his  defence 
in  the  Court  below,  a  new  trial  would  possibly 
have  been  rendered  unnecessary  by  his  success. 
Seaman  v.  Porter,  4  R.  &  G.,  292  &  495. 

2.  Petition  — How  signed  by  guardian- 
No  substantial  distinction  between  the  petition 
of  A  by  her  guardian  B,  and  that  of  B  as  guar- 
dian of  A. 

McXiel,  Guardian,  v.  McXiel,  Cochran,  32. 

3.  Reai  estate  of  InHints— Power  of  Court 

over— Effect  on  such  power  of  appointment  of 
guardian— The  power  of  the  Equity  Court  over 
the  real  estate  of  infants  in  this  Province  is 
more  extensive  tiian  any  such  power  which  has 
ever  l)een  exercised  in  England. 

If  it  be  shown  that  by  the  disposal  of  the 
property  the  interest  of  the  infant  will  be  sub- 
stantially promoted  on  account  of  any  portion 
of  tlie  property  being  exposed  to  waste  or  dilap- 
idation, or  being  wholly  unproductive,  or  for 
any  other  reasonable  cause,  the  Court  has  a  dis- 
cretionary power  to  order  a  sale. 

Where  the  whole  property  yielded  an  income 
of  only  8100  and  the  infants'  undivided  share, 


HABEAS  CORPUS. 

1.  AffldaTlts  in  reply  not  allowed  — Affl- 

davits  in  reply  not  allowed  to  be  produced,  on 
the  ground  that  an  application  for  habeas  corpiis 
could  be  renewed  of  right  to  any  Judge. 

In  re  James  William  Black.     Unreported, 

2.  Application  for  discharge- Direction  of 

writ — Application  was  made  to  the  Judge  of  the 
County  Court  for  the  discharge  of  an  msolvent 
j  debtor  under  Chapter  118  of  the  Revised  Statutes 
I  (5th  Series).  The  application  was  refused  on  the 
I  ground  that  the  debtor  had  been  guilty  of  fraud 
in  respect  of  delay  of  payment  and  the  disposal 
of  his  property,  and  the  learned  Judge  made  an 
order  directing  that  he  be  confined  in  jail  for  a 
period  of  six  months.  This  order  was  made  on 
Saturday,  the  23rd  day  of  January,  1886,  but 
was  inadvertently  dated  as  of  the  24th  (Sunday). 
The  mistake  being  discovered,  the  learned  Judge, 
on  Monday,  the  25th,  made  a  further  order,  con- 
firming the  first  order,  and  directing  that  the 
debtor  be  confined  in  jail  for  a  period  of  six 
months  from  the  23rd  of  January  for  such  fraud. 
Application  was  thereupon  made  to  the  Court 
for  the  discharge  of  the  debtor  under  a  writ  of 
habeas  corptis,  on  the  ground  that  he  was  illegally 
detainer!,  the  imprisonment  under  the  execution 
having  determined  when  the  orders  were  made 
by  the  County  Court  Judge  in  respect  to  the 
imprisonment  for  fraud,  and  such  orders  being 
bad. 

Held,  that  the  prisoner  was  not  entitled  to 
the  relief  sought,  the  execution  under  which  he 
was  imprisoned  continuing  in  force  until  he  was 
released  by  the  creditor,  or  until  the  making  of 
a  valid  order  for  his  discharge  under  the  Act,  or 
for  his  further  imprisonment  for  fraud. 
He/d,  also,  that  the  writ  of  habeas  corpus 


615 


HALIFAX.  CITY  OF. 


GIC 


ahoiild  luive  l)een  direuted  to  the  Slicritrmid  nut 
to  tlu;  .Iiiilor. 

\Veiitlierl)t',  .1.,  iliiimfiiKj. 

Ill  rv  (•'.  It.  Johwtoii,  7  K.  &  (!.,  ')!  ; 
7C.  L.  T.,  !HI. 
On  (i/>j>ca/  to  till  Siiiirimi'  Court  of  Canada, 

Hild,  tliiit  the  iippoiil  inu»t  he  diHinisHud  with- 
out costs. 

Xo  costs  are  given  in  halnax  cor/iH.1  appeals,  as 
a  general  rule,  mfavorem  /ilnrtalis.  I 

//(  ri'  (/,  /;.  Johnson,  ..'Dth  F'h.  ISSH,  | 

fas.  Digest,  :W(>  dt  540. 

3.  Conviction  for  violation  of  license  laws 

— Jfriliiai  C'ory/ds  motion  for  ^Judgment  dis- 
missing not  appealable  when  prisoner  ia  dis- 
charged before  appeal— Costs — Tiie  prisoner, 
Simon  Kraser,  hail  l>een  convicted  liefore  F.  A. 
Laurence,  Stipendiary  Magistrate  for  the  Town 
of  Truro,  of  violating  the  license  laws  in  fi.'rce  in 
the  town,  and  was  lined  .'?40  and  costs  as  for  a 
third  oB'ence.  Kxecution  was  issued  in  the  form 
given  in  4th  R.  S.,  c.  7.5,  under  which  Eraser 
M'as  cojninittod  to  jail.  While  there  he  was 
convicted  of  a  fourth  oH'ence  and  tineil  .■?>«»  and 
costs,  and  was  detained  under  an  execution  in 
the  same  form.  The  matter  came  l)eforc  the 
Sujireme  Court  of  Nova  Scotia  on  a  motion  to 
make  alKSolute  a  rule  «(vi  granted  liy  Weatherlie, 
J.,  under  4th  K.  S.,  c.  99,  "Of  Securing  tlie 
Liberty  of  the  Subject."  The  rule  was  dis- 
charged. 

In  rv  Simon  Fraser,  1  R.  &  (i.,  :i7i4. 

On  appeal  to  the.  Supreme  Court  of  Canada, 

It  appeared  that  before  the  institution  of  the 
appeal,  the  time  for  which  the  appellant  had 
been  imprisoned  luul  expired  and  he  was  at 
large. 

On  motion  to  dismiss  the  appeal  for  want  of 
jurisdiction, 

//i/d,  that  an  appeal  will  not  lie  in  any  case 
of  proceedings  for  or  uiwii  a  w  rit  of  halnax 
corpus  when  at  the  time  of  bringing  the  appeal 
the  appellant  is  at  large. 

Appeal  dismissed.  The  question  of  costs  was 
reserved  and  subsequently  the  Court  ordered 
that  the  respondent  should  be  allowed  his  gen- 
eral costs  of  the  appeal. 

Frauhr  v.  Tupper,  .'M  June,  ISSO, 
Cas.  Digest,  240. 

4.  Discharge  of  party  re-arrested  after ' 

release — Certiorari  to  remove  a  conviction  for 
violation  of  the  license  laws  in  the  city  of  Hali- 
fax quashed,  on  the  ground  that  a  l>ond  had 
been  filed  instead  of  )>uil. 

The  defendant  having  been  released  on  the 
issue  of  the  certiorari,  and  re-arrested  on  the 


oi'iginal  warrant  after  the  rirtiorari  was  ((uashed, 
the  Court  granteil  a  rule  in  the  nature  of  a  halif(u 
ror/iu-i  under  the  statute  "Of  .Securing  the  Lili. 
erty  of  tiic  Subject,"  on  terms  that  defendant 
should  bring  no  action. 
'J'hf  City  of  llalij'ax  v.  Uakt,  2  R.  i''.  o.,  142. 

5.  Discharge  of  prisoner  under  writ  of, 

where  proceedings  irregular  —  The  Court 
n\ade  absolute  a  rule  iiiii  for  a  habeax  corimt 
where  it  ai)peared  that  the  prisoner  had  lieeu 
arrested  on  an  execution  for  penalties  under  tlic 
License  Laws,  tiie  .Justices  having  pioceeiled 
with  the  cause  in  the  absence  of  defeuiliint, 
without  an  athdavit  of  the  service  of  summons, 
althougli  on  the  hearing  of  the  rule  nisi  it  was 
made  to  appear  that  the  sunnnons  had  actually 
been  served. 

In  re  Donald  McKarhern,  1  R.  &  (i.,  3'Jl. 

6.  No  appeal  -Sec.  6  of  Cap.  94, 4th  K.  8., 

giving  an  appeal  from  the  decisions  and  judg- 
ments of  a  Judge  at  Chambers,  does  not  apply 
to  an  order  in  the  nature  of  a  writ  of  hahen-i 
rorim-s  granted  by  a  .Judge  under  sec.  .3  of  cap. 
99,    R.    S.,    "Of  Securing  the  Liberty  of  the 

Subject." 

//(  re  A.  L.  MrKeirJi,  2  R.  &  C,  4H1. 

!.   Sentence  Dorchester  one  year -A  mend. 

ment  of — A  prisoner  was  convicted  of  larceny 
and  sentenced  to  one  year's  imprisonment  in 
Dorchester  Penitentiary.  The  Warden  refused 
to  receive  him  on  the  ground  that  the  sliortest 
period  for  which  prisoners  could  be  sentenced 
to  or  received  at  the  ])enitentiary  was  two  yef.rs. 
I'ri.soner  was  then  taken  to  the  county  jail.  On 
a  motion  for  haheas  corpu.s,  the  jailor,  in  his 
return,  set  out  the  conviction  for  larceny  and 
also  returned  that  the  prisoner  was  detained 
under  a  warrant  of  a  Justice  for  attempting  to 
escape  by  tearing  up  tiie  floor  of  his  cell.  The 
warrant  annexed  to  the  return  was  under  the 
hand  of  two  Justices.  The  Court  refused  to 
discharge  him,  and  decided  that  he  should  he 
sentenced  to  iniprisonmcnt  in  the  common  jail 
for  one  year,  inclusive  of  the  period  for  which 
he  had  already  been  <letained. 

In  re  Wallace  Rice,  2  R.  &  (J.,  77  ; 
1  C.  L.  T.,  555. 


HALIFAX,  CITT  OF. 
1.    Action  against  —  Notice  of  action 

against  City,  given  by  plaintiff's  attorney,  iield 


617 


HALIFAX,  CITY  OF. 


618 


siiffioii'iit  and  miobjectionublt',  idthnugh  in  the 

lilttrnativu  as  to  amends  l)eing  paid, 

nalhr  V.  The  Clly  of  II  nl  if  ax,  4  R.  &  C;.,  371. 

AHirined  on  appeal  to  tlie  Supreme  Court  of 

CKiiada, 

Cas.  Digest,  98. 

2.  Artlon  against— Notice  of— Where  plain- 

tirt'  in  an  action  against  the  City  of  Halifax,  for 
compensation  for  injuries  received  through  negli- 
gi'iicc  of  the  City's  contractors,  failed  to  give  any 
proof  of  notice  of  action  heyond  a  minute  of  the 
City  Council,  stating  that  a  letter  from  plain- 
tifTs  solicitor,  claiming  damages,  had  Insen  read 
lieforu  the  Council,  and  a  notice  to  defendants  to 
pnicluce  the  letter  not  complied  with, 

Hi  Id,  that  the  plaintiff  could  not  succeed  for 
want  of  sufficient  notice  of  action  under  section 
•JTti  of  the  City  Charter. 
Robinson  V.  Tht  City  of  Halifax,  2  R.  &  C. ,  .375. 


ft  particular  amount,  of  which  he  hrts  had  notice, 
and  that  the  amount  is  due  and  unpaid.  The 
certificate  must  go  further,  and  show  that  the 
amount  has  not  been  collected  and  paid  over 
under  the  warrant  of  distress  provided  for  by 
section  'MtQ. 
Th>  City  of  Halifax  v.  liowtr,  1  N.  S.  1).,  (59. 

6.    Assessment  of  vessels  not  registered  in 

Halifax — Under  the  laws  in  force  in  relation  to 
the  City  of  Halifax,  December,  1877, 

H(l(l,  that  vessels,  the  owner  whereof  resided 
and  did  business  in  the  City,  but  which  were  not 
registered  in  Halifax  and  had  never  been  in  the 
port  of  Halifax,  were  not  assessable  for  city 
rates. 

Kmvy  v.  Thr  City  of  Halifax,  1  R.  &  C,  .S9. 

Artirmed  on  appeal  to  the  Supreme  (^'ourt  of 
Canada. 
Tht  City  of  Halifax  v.  Ktnny,  3  S.  C.  R.,  497. 


.1.   Action  for  breaking  soil  of  street  in 

City— By  whom  brought— Two  actions  were 
liroiigiit  in  the  lower  court,  for  breaking  the 
soil  of  a  street  in  Halifax  without  permission, 
one  action  by  the  City  of  Halifax,  the  other  by 
the  Comniissioncr  of  Streets,  against  one  Quinn, 
who  had  contracted  with  the  defendant  company 
to  crei't  telegraph  posts.  Judgments  for  the 
plaintiff  in  both  actions  confirmed  on  appeal. 
Thi  City  of  Halifax  v.  Xora  Scotia  EUctric 
Tilii/rnph  Co.,  Cochran,  83. 

4.   Alderman  -  Expulsion  of,  ft'om  City 

Council —Conviction  for  drunkenness,  &c. — 
Quo  warranto — Where  a  party  elected  as  alder- 
man in  October,  1862,  had  been  several  times 
convicted  of  drunkenness,  assaults  and  disor  lerly 
ooniUu't,  between  the  years  l8r)Uand  1862,  but 
there  was  no  such  conviction  for  six  months 
previous  to  his  election,  and  no  evidence  that 
he  was  a  connnon  drunkard, 

//'/(/,  that  the  City  Council  had  no  power  to 
declare  his  election  a  nullity,  and  to  direct  that 
another  alderman  should  be  elected  in  his  place. 

A  corjM)ration  has  no  power  to  remove  a  duly 
elected  nienil)er  of  its  own  lK)dy  for  crimes  com- 
mitted previous  to  his  electi(m. 

Practice  with  regard  to  proceedings  on  appli- 
cation for  a  quo  warranto  information  discussed. 
Su  QIO  WARRANTO. 

In  re.  Thomax  Spenee,  1  Old.,  3.33. 

•'>.  Assessment  —  Certificate  as  to  —  Con- 
viction—The  requisites  of  section  370,  of  the 
City  Act,  chapter  81,  Acts  1864,  are  not  suffi- 
ciently complied  with  by  a  certificate  stating 
merely  that  the  defendant  has  been  assessed  in 


7.  Building  Act-Proceedings  for  viola- 
tion of— The  application  to  a  Judge  under  2.5 
Vict.,  chap.  27,  sec.  U,  now  section  O.'i.')  of  the 
City  Charter  (27  Vict.,  ch.  81),  should  be  by 
inforniatiim  or  complaint  under  oath,  stating 
precisely  and  clearly  the  several  grounds  of 
complaint,  and  the  proceedings  thereunder 
should  be  similar  to  those  under  Rev.  Statutes, 
chap.  70,  sec.  r^Q. 

No  writ  of  summons  is  recjuired,  and  the  in- 
formation may  be  sworn  to  before  a  Commis- 
sioner. 

The  City  of  Halifax  v.  Mc  Leant,  1  Old.,  689. 

8.  Building  Act  — Practice  on  proceed- 
ings for  violation  of— Parties  proceeded  against 
under  the  provisions  of  section  655,  of  tlie 
City  laws  for  the  infringement  of  the  regula- 
ti(ms  relating  to  buildings,  are  entitled  to  an 
information  as  in  the  case  of  City  of  Halifax 
V.  McLfarn,  1  Old.,  689,  if  they  reijuire  it,  when 
if  the  Court  declares  the  structure  to  be  a 
nuisance,  the  Council  may  order  its  removal,  and 
it  is  not  necessary  to  resort  in  the  first  place  to 
the  Police  Court  under  section  654. 

The  proceedings  were  ordered  to  be  anjcndcd 
by  filing  an  information  as  against  Seeton  the 
owner,  omitting  Brookfield  the  contractor.  Costs 
as  to  Brookfield  reserved. 

In  rt  City  of  Halifax  and  Seeton  et  al. , 

3R.  4C.,  .365. 

9.  B}'-law—  Power  ot  Council  to  make— 

Ninety  days  and  three  months  are  not  equi- 
valent terms — The  statute  enabling  the  City 
Council  to  make  a  by-law  provides  that  im- 
prisonment for  ninety  days  may  be  annexed  to 


619 


HALIFAX,  CITY  OF. 


620 


the  breach  thereof.  The  by-hiw  against  Sunday 
trading  provided  for  an  imprisonment  of  three 
months. 

He.hl,  that  the  by-law  was  void,  and  a  con- 
viction thereunder  was  quashed  accordingly. 

The.  City  of  Halifax  v.  C/iwen,  6  R.  &  O.,  521  ; 

OC.  L.  T.,54'2. 


19.    City  Charter— Inspecting  and  weigh- 

ing  of  flour  —  Chapter  81,  of  the  Nova  Scotia 
Acts  of  1864  (the  Halifax  City  Charter),  sec- 
tions 450,  451  and  452,  contained  provisions 
imposing  certain  tines  and  penalties  on  "every 
person  sending  from  or  offering  for  sale,  witliin 
the  City  of  Halifax,  any  barrel  or  half  barrel  of  i 
flour  or  meal  deficient  in  weight,  or  without  its 
having  been  branded." 

These  sections  were  .sub,stantially  incorporated 
in  Chapter  85  of  tlie  Revised  Statutes  (.'kd 
series),  by  which  provisions  were  made  for  the 
inspection  and  weighing  of  flour  and  meal  in  the 
Province  generally. 

Ildd,  that  the  sections  of  the  City  Charter 
were  covered  and  repealed  by  the  Dominion  Acts  ! 
of  IST.S,  which  contained  provisions  for  the 
weighing  and  liranding  of  flour  and  meal,  anil 
repeiiled  "all  Acts  or  parts  of  Acts  or  of  any 
charter  or  law  now  in  force  in  tlie  Dominion  of 
Canaila,  or  in  any  Province  tiiereof,  jH'oviding 
for  tiic  inspection  or  tiie  appointment  of  inspec- 
tors of  any  of  the  articles  the  insj)ection  of 
whicl'.  is  hereby  provided  for." 

'J'he  City  of  Halifax  v.  Cuuninijham  et  a/., 

7  R.  &  G.,  14. 


11.    City  Courts,  Jurisdiction  of-Conilc- 

tion  for  ofifence  different  from  that  charged  in 
summons— Prosecution  for  keeping  junk  store 
wrongly  instituted  in  Police  Court  at  the 
suit  of  the  City — An  action  was  brought  against 
the  defendant  in  the  Police  Court  at  the  suit  of 
the  City  of  Halifax,  for  an  alleged  violation  of  a 
City  ordinance  in  keeping  a  marine  and  junk 
store  without  license  therefor,  and  after  trial 
the  defendant  was  convicted  of  keeping  a  rag 
and  junk  shop  without  license. 

Held,  />€r  Weatherbc  and  Rigby,  JJ.,  that 
the  conviction  was  bad  in  that  the  offence  for 
which  the  defendant  was  convicted  was  different 
from  that  charged  in  tlic  summons. 

Per  Rigby,  J. ,  that  the  criminal  side  of  the 
City  Court  had  jurisdiction  over  the  subject 
matter  and  could  afford  complete  redress,  and 
that  the  prosecution  was  wrongly  instituted  in 
the  Police  Court  at  the  suit  of  the  City. 

The  City  of  Halifax  v.  O'Connor, 

3  R.  &  G.,  190, 


12.    Contract  with  City  -  Resolution  of 

City  Council— Plaintiff  offered  to  the  City  a  site 
on  Lockman  .Street  for  a  City  liall,  to  bo  erected 
under  Act  of  1874,  cap.  li't,  for  §35,000,  payal)le 
in  City  debentures.  The  City  Council  resolved 
to  accept  the  offer,  and  tliat  the  Mayor  be 
authorized  "  to  have  debentures  issued"  for  the 
purchase  of  the  site,  and  that,  on  the  necessary 
documents  being  completed,  such  delientures  be 
handed  over  to  plaintiff,  a  copy  of  the  resolution 
being  enclosed  to  the  plaintiff  by  the  City  Clerii, 
but  without  any  instructions  or  directions  to  tiiut 
effect  from  the  Mayor  or  City  Council.  At  tlio 
time  the  offer  was  made  by  the  plaintiff  tlic  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  liud 
made  arrangements  so  as  to  be  ready  to  have  the 
property  transferred  when  the  Mayor  slioulil 
perform  his  duty,  and  lie  tendered  to  the  Mayoi 
an  unexecuted  deed  of  the  lots  which  were  to 
form  tlie  site,  and  recjuired  him  to  carry  out  the 
resolution  of  the  Council.  Defendant  rofu.sed  to 
sign  or  issue  the  debentures,  and  plaintitVprayeil 
for  a  writ  of  mandamus  to  compel  him  to  do  so. 
//«/'/,  that  the  resolution  of  the  Council  did 
not  constitute  a  contract  witii  the  defendant, 
and  that  in  order  to  tiie  validity  of  such  contract 
a  document  under  the  seal  of  the  corporation 
was  necessary  ;  that  even  had  the  agrei.'nient 
been  formal  and  binding,  plaintiff  had  not  a  right 
to  require  the  Mayor  to  carry  out  the  resolution 
of  the  Council  until  he  had  tirst  secured  a  title 
to  tiie  lands  to  enable  him  to  perform  his  part  of 
the  agreement. 

Jtnnelt  v.  Sinclair,  1  R.  &  C,  ;?92. 


I     13.    Estoppel  —  Pleading  —  In  an  action 

j  against  the  City  for  removing  plaintiff's  steps, 
]  it  appeared  in  evidence  that  when  tiie  City 
I  engineer  called  on  plaintiff  in  reference  to  the 
j  alleged  encroachment  on  the  street,  plaintiff 
!  asked  the  engineer  to  give  him  the  line  of  the 
'.  street,  whereupon  the  engineer  marked  it  on 
j  the  corner  of  the  steps  with  a  pencil.  Defend- 
ant's counsel  contended  that  plaintiff  was  bouud 
I  by  this  proceeding,  under  section  270  of  the  Act 
I  of  incorporation,  and  that  not  having  appealed 
;  under  section  271,  he  was  estopped. 

Held,   that  the  defendant    could    not    take 

advantage  of  the  estoppel,  not  having  pleaded  it. 

1    Eimis  V.  The  City  of  Halifax,  3  R.  &  G.,  321. 


14.   Evidence  of  leave  and  license— Re> 

jeetion  of  — The  Corporation  of  Halifax,  in 
making  certain  street  improvements,  pulled 
down  plaintiff's  p     ;h,  which  projected  across 


621 


HALIFAX.  CITY  OF. 


622 


the  line  of  sidewalk,  whereupon  plaintiff  sued 
(Icfi'iidunt  for  damages,  he  being  one  of  the 
iililermcn  under  whose  direction  the  iniprovo- 
iiiuiitH  were  niude.  Defendant  pleaded  in  denial 
iiuil  juatilication.  At  the  trial  he  sought  to 
iiitrodiiue  evidence  to  show  that,  prex'ious  to 
tho  ])orcli  being  pulled  down,  plaintiff  had  agreed 
to  remove  it  when  requested  by  the  City  autiior- 
itics,  or  to  allow  them  to  remove  it  theniHelves. 
I'liiiiitiff  objected,  ond  the  Judge  rejected  the 
cviduiicc.  Verdict  for  plaintiff  and  rule  to  set 
it  aside. 

Ihld,  that  there  Iteing  no  plea  of  leave  and 
lioi'iisi',  the  evidence  was  properly  rejected,  and 
tlie  verdict  should  bo  upheld. 

llaijijarty  v.  Pryor,  3  N.  S.  D.,  .358. 


15.  Li(|uor  License  Act-Issue  ofllcenses— 

Provisions  of  Halifax  City  Charter  respecting 
—Repeal  of  the  General  Act— Express  enact- 
ment required  to  revive  —  Application  for 
license  not  recognized  by  law  properly  refused 
—Action  for  a  mandanui.s  to  compel  the  Clerk  of 
Licenses  for  the  City  of  Halifax  to  sign  and  issue, 
ami  the  Viayor  of  the  City  to  countersign,  a 
license  to  the  plaintiff  to  '♦  keep  a  saloon  in  the 
simp  or  Imilding  occupied  by  him,  .  .  .  and 
to  vend  therein  provisions  or  victuals,  and  sup- 
ply f<)o<l  or  tobacco,  and  also  to  retail  intoxi- 
cating liquors  therein  conformably  to  law,  until 
the  l.')th  March,  KSS7." 

TlicCity  Charter,  Acts  1804,  c.  81,  ss.  19.3,  194, 
as  iiinended  by  the  Acts  of  1867,  c.  87,  s.  14, 
authorized  the  issue  in  the  City  of  Halifax  of 
three  classes  of  licenses,  viz. ,  tavern,  shop,  and 
general  licenses.  The  license  applied  for  by  the 
plaintiff  belonged  to  the  latter  class. 

l>y  the  Acts  of  1869,  c.  2,  s.  4,  the  general 
License  Act  of  the  Province  was  amended  so  as 
t(i  prohibit  the  issue  of  any  other  than  tavern 
and  shoj)  licenses,  and  by  s.  10  the  amendment 
thus  made  was  made  applicable  to  the  City  of 
Halifax.  By  the  Acts  of  1873,  c.  1,  providing 
for  the  publication  of  the  Revised  Statutes  (4th 
Series),  all  Acts  not  substantially  incorporated 
therein  wore  to  be  continued  in  force. 

llild,  that  the  amending  Act  of  1869  not 
having  been  substantially  incorporated  in  the 
Revised  IStattites,  was  not  repealed. 

Alio,  that  even  if  such  Act  had  been  repealed, 
the  clauses  of  the  City  Charter  under  which  the 
plaintiff  claimed  his  license  had  never  been  re- 
vived, and  could  only  be  revived  by  express 
enactment. 

Alxo,  that  the  license  which  the  plaintiff  re- 
quired to  lave  issued  to  him  not  being  of  a  kind 
recognized  by  the  law,  there  was  no  authority 


for  granting  it,  and  the  plaintiff  consequently 
could  not  succeed  in  his  action. 

ImjlU  V.  Morria  e<  a/.,  7  R.  &  O.,  531  ; 
8C.  L.  T.,6.3. 

16.  Loekman  Street  Extension  Act-Under 

the  City  Charter,  section  '26(>,  the  City  ('ouncil 
I  took  possession  of  certain  lands  of  plaintiff  and 
!  others,    for   the  extension  of  Loekman  .Street, 
I  including  a  lane  in  which  the  adjoining  proprio- 
I  tors  had  a  perpetual  easement.     Appraisers  were 
I  appointed   who   made  an  award    on   the    16th 
'  April,  1869,  of  the  compensation  to  be  \vx\A  to 
I  the  parties  whose  lands  were  taken  under  that 
I  Act,  but  plaintiff  being  dissatisfied  remonstrated 
against  the  award  so  far  as  it  affected  his  pro- 
I  perty.    A  few  days  afterwards  the  plaintiff  took 
I  a  deed  of  the  fee  simple  in  the  lane.     On  Decem- 
'  ber  16th,  1869,  notice  of  action  was  served  on 
the  defendant,  and  on  April  4th,   1870,  a  writ 
was  issued.     An  Act  was  afterwards  passed  on 
the  18th  April,  1870,  to  facilitate  the  arrange- 
ment of  disputes  in  regard  to  proi)erties  taken 
for  the  extension,  and  under  that  Act  the  City 
Council   passed  a  minute,  authorizing  a   fresh 
appraisement  to  be  made  of  damages  to  be  paid 
to  the  plaintiff  "  for  such  lands  and  buildings  as 
may  be  necessary  to  extend  or  widen  Loekman 
Street,"   etc.     An   award   was   made   pursuant 
to  this  minute  of  Council,  and  plaintiff  accepted 
the  amount  awarded  and  gave  a  receipt  for  the 
same.      Defendant  then   pleailed   the   payment 
and  acceptance  of  the  sum  in  full  satisfaction 
and   discharge  of  the  claim,  and   recovered  a 
verdict  on  that  plea. 

Held,  that  the  verdict  should  not  be  disturbed, 
as  it  was  not  to  be  assumed  that  the  appraisers 
had  overlooked  the  subject  of  the  suit  in  (jues- 
tion,  and  that  as  to  the  lane,  the  easement  in 
which  had  not  been  injured,  but  improved  by 
the  proceedings  of  the  Commissioners  for  extend- 
ing the  street,  the  damages  for  the  fee  simple 
ought  to  have  been,  and  probably  had  been, 
allowed  under  the  first  award  to  the  original 
owner,  who  had  made  no  objection  to  that  award. 
Hendry  v.  The  City  of  Halifax, 

1  R.  &C.,  146. 

17.  Mayor's  Court  of  Hallfnx  has  exclu- 
sive jurisdiction  in  certain  cases— When  the 
plaintiff's  demand  has  Ijeen  reduced  by  cash  pay- 
ments below  ten  pounds  in  the  City  of  Halifax, 
the  Mayor's  Court  has  exclusive  jurisdiction. 

Donovan  v.  Mahar  et  at.,  James,  91. 

18.  Minutes  of  Hallfix  Citjr  Council  — 

Evidence  of — An  action   was  brought  against 
the   defendant  for  his  share  of  the  ex|)ense  of 


023 


HALIFAX,  CITY  OF. 


024 


(•(instructing  a  newer  on  Sduth  Park  Street,  and  ■liulgniont  of  the  Supreme  Court  of  Novn 
ii  liook  wa8  tcntlcroil  in  (jvideiice  as  tlie  minute  Scotia  atHrmeil,  anil  appeal  diannHHeil  witli  coNtH, 
liook  of  the  City  ("oimcil,  containing  the  reHolu-  Tht  Cihj  of  Halijax  v.  Wnlhr^ 

tion  authorizing  tiie  construction  of  tiie  sewer,  |  ItUh  Fihriiary,  ISS'i,  ("as.  Digchi,  (is, 

lir.t  was  rejected.     The  City  Clerk  explained  as 

to  this  book  that  notes  were  taken  of  proceed-  ,  jO.  XeKllgCnCe-ActlOn  OgUlnHt  CIVIC  CON 
ings  of  the  Council  l.y  himself  when  present,  and  p„,j^tj^,„__Sg^yi^g  of  notice  on  Mayor  Non- 
in  his  absence  by  his  assistant,  and  were  after-  ^^.^  ^^f^^^,,  _.  judgment  in  accordance  with 
wards  transcribed  more  fully  into  the  ""uute  ^^^jj^^^  of  Jury  austained^The  Halifax  City 
book  from  the  pencil  notes  taken  m  the  first  |  Q^^,^,.^^^  ( .^^ts  „f  1H()4,  cli.  81,  sec.  'iTti)  provi.lcH 
instance,  and  certilied  by  the  Mayor  at  the  „,_^^  .,  j;,,^^,j„„  ^,,,^„  ,,^.  ^,„„,„,^,,,^,^,,  ,^^,.^i,,^,  ,l_^^ 
following  meeting  of  Council.  Cj^y    _     _     _    till  twenty  days' notice  in  wiiting 

//(/,/,  that  as  the  resolution  in  .luestion  was  ^j^^j,  ^  g.^,^,^,,  p,,^i„tirt-  j,,,,,.^,,,  ,,  ,„„j^,^. 
a  public  otHcial  act  of  the  City  Council  registered  j  ,^,,,,resst.,l  to  and  served  upon  the  .Mayor  of  the 
in  the  book  kept  for  the  purpose,  entered  by  the  (^.j^y.  ...p,,,^^  ^^j^^^  j,,^  expiration  of  twenty 
proper  otHcer  and  authenticated  by  the  signature  ,,,^y,  f^,,,,,  Uie  service  up.n  you  of  this  «„ti,r, 
of  the  Mayor,  the  book  shoidd  have  been  received  j,^jj   ^^.^j^,,   ,^^    j,^^^    ^^.j,,    ,,^.   ,,„„n„,„ee,l    j,,  ,i„, 

in  evidence.  j  Supreme  Court  against  the  City  of  Halifax,  at 

Th,  City  oflMifnx  v.  Komam,  1  R.  &  (i.,  26.5.  |  j,^^  ^^j^  ^j  _^,,.^   ().,j   j„  ,.^,^,„^.p^      _    _   Amk,'^,, 

for  injuries  sustained  by  her  in  falling  over  an 
19.    Municipal  liability  for  nuisance  in  the    unprotected   embankment   on    Campbell    K„a,l 
highway  -  Special  damages  —  Whether  City   „„.„j,,j  ,,y  ti,^  f.jty - 


liable  for  non-repair  of  streets  damaged  by  ice 
or  snow  —  Notice  of  action —  Lawful  traffic  — 
The  principal  streets  of  Halifax  were  in  such  a 
condition   from   accumulation  of  ice  and  snow 


Hild,  that  the  notice  was  suflicient  in  all 
respects. 

Alw,  that  in  the  absence  of  any  special  iiro- 
vision  in  the  City  Charter  for  service  of  ))i()icss 


hardened  into  irregularities  of  surface,  that  the  I  „p„„  the  City,  the  service  upon  the  Mayor  was 
plaintiff,  owner  of  a  line  of  omnibusses,  had  his  j  sufficient. 

vehicles  injured  and  suffered  loss  of  custom.'  ^l/.so,  that  a  motion  to  mmsuit  plaintiff  ..n  tiie 
The  non-reiwir  continued  during  the  greater  authority  of  llV/;//iC  v.  Thi'  Midktinl  Ihihnuj 
jMirt  of  the  winter  and  after  full  notice  to  the    q^^^  -,i  j^   q'^  >j    s^  y;^t^   was  properly  refused. 


City  authorities. 

H<l(l,  Ist,  that  the  City  was  liable  for  plain- 
tiff's  injury ;    '2nd,    that    negligence   had  been 


AUo,  that  the  negligence  of  defendant  having 
been  clearly  established,  and  the  (juestion  iif 
contributory  negligence  having  been  left  to  the 


proved  ;  .3rd,  that  the  plaintiff  was  not  guilty   j,„.y^  „.i,„  f,„„„i  ;„  f^vor  of  tlie  plaintitf,  tin 


of  contributory  negligence  in  not  using  other 
streets  instead  of  those  complained  of  ;  4th,  that 


Judge  presiding  was  obliged  to  enter  judgment 
in  accordance  with  the  findings,  and  tlie  jncig- 


O'liriin  V.  Thi-.  City  of  Hnlifix, 

7  R.  &(;.,.tfl.S; 
7C.  L.  T.,4r.. 


notice  of    action   by   plaintiff's    attorney   was   n,e„t  g^  e„tg,.ed  should  not  be  diaturbed. 
sufficient  and  unobjectionable,  although  in  the 
alternative  as  to  amends  being  paid. 

Where  an  individual  or  corporation  is  liable 
to  indictment  for  non-repair,  an  action  will  lit 
at  the  suit  of  one  who  suffers  special  injury. 

Liability  is  not,  in  all  cases,  to  be  inferred 
from  enactments  placing  the  highway  under 
defendant's  control.  The  ohltijation  must  have 
been  iwiposed  on  or  transferred  to  defendant. 

No  distinction  exists  between  nonftyisance 
and  malfeasance,  in  relation  to  such  liability. 


21.    i\egiigence-Clt}'  railroad,  llabllU}  of 

for  damages  caused  by  rails— The  Halifax  City 
Railroad  ComiJfiny  was  bound  by  its  charter  to 
keep  its  rails  on  a  level  with  the  roadway.  The 
rails  were  not  so  kept  and  damage  having  resulted 
to  plaintiffs  while  using  the  streets  with  llieir 

.  Hdd,  that  plaintiffs  had  a  right  of  action 
On  appeal  to  the  Siqrreme  Court  of  Canada,  !  against  the  company  which  was  not  defeated, 
Htld,  1,  Ritchie,  C.  J.,  disxtutiiKj,  that  it  was  .although  the  course  adopted  for  avoiding  the 
the  duty  of  the  corporation  to  keep  the  streets  damagemightnotbc  the  best,  provided  the  efforts 
in  good  repair;  and,  2,  Gwynne,  J.,  dinxeiitinij,  to  escape  injury  were  earnest  and  sincere  and 
that  the  plaintiff  was  entitled  to  retain  his  not  grossly  inappropriate, 
verdict,  having  proved  special  injury,  and  the:  .<4/^o,  that  authority  given  to  the  City  Council 
damages  awarded  not  being  too  remote  or  ;  to  supervise  and  direct  the  repairs  of  the  railroad 
excessive.  |  was  merely  directory,  and  not  of  such  a  chttra(;ter 


625 


HALIB^AX,  CITY  OF. 


626 


iiH  to  artVot  tlie  right  of  lutioii  of  individiiiilH 
injuri'tl,  directly  iigaiimt  the  c'(ini])iiiiy.  Dodd 
iiiid  WilkiiiH,  .M.,  ili'-siiilini/. 

Coii/on  it  III.  V.  Thf  Clfif  linilrond 

Com/xiiij/,  '_»  X.  ><.  1).,  'Jfttt. 


2!2.   XrgliKcnrc-Halintx  Street  Kailway 

Company,  Limited  —  Liability  of  City  for  in- 
jury caused  by  rails  of  —  Tliu  Halifax  Street 
Kailwuy  Coinpany  was  incorporated  hy  an  Act 
lu.dir  wiiich  t!ie  City  corjioration  had  power  to 
refuse  to  permit  rails  to  l)e  laid  or  to  consent  on 
such  ternm  as  tiiey  thought  tit  to  impose.  'I'iiu 
Company  discontinued  their  operations,  leaving 
the  rails  in  many  places  protruding  aliove  the 
level  of  the  streets,  and  alioul  a  year  after  they 
had  ceased  to  operate  their  road  the  plaintiff's 
carriage  and  horses  were  seriously  injured  in 
;ousc(iuence  of  one  of  the  rails  projecting  from 
the  street,  tlie  wooden  sleepers  to  which  it  had 
been  liolted  heing  too  much  decayed  to  retain 
the  fastenings.  Defendants  pleaded  that  the 
rails  wcie  in  the  exclusive  possession  of  the 
Railway  Company,  that  the  accident  had  heen 
caused  by  the  passage  of  a  heavy  cannon  dis- 
turbing the  rails,  shortly  j)revious,  and  that 
tiu'y  had  lU)  notice  of  their  defective  condition. 
The  verdict  was  for  plaintiff. 

Ilihl,  that  under  the  justification  pleaded  it 
was  necessary  for  the  defendants  to  disclose  the 
permission  given  to  the  Company  to  lay  the  rails, 
and  that  the  ((Uestion  as  to  the  inmiediatc  cause 
of  the  accident  and  the  want  of  notice  had  heen 
disposed  of  ))y  the  verdict. 

/'(/•  Young,  C.J. — That  the  defendant  cor- I 
poration  was  bound  to  cover  up  the  rails  after 
the  Company  had  withdrawn  from  the  field,  and 
was  liable  for  the   damage   resulting   from   its 
neglect, 

Adams  v.  The  City  of  Halifax,  1  R.  &  (;.,  .S-44.  i 


23.   Negligenee  in  leaving  sewer  open— 

Liability  for— The  plaintiff  and  his  wife,  while 
walking  along  one  of  the  streets  of  Halifax,  fell 
into  an  open  sewer  and  sustained  injuries,  for 
which  they  bro\ight  an  action  against  the  City, 
and  weie  awarded  damages.  The  City  then  ap- 
plied for  a  new  trial. 

Held,  that  the  City,  although  not  provided  by 
the  Legislature  with  funds  for  that  purpose, 
was  liable  for  any  acts  of  negligence  on  the  part 
of  their  servants  or  employees  in  and  about  the 
streets. 

Scroxdiy,  that  the  plaintiffs  must  clearly  show 
that  they  have  not  been  guilty  of  negligence 
themselves.  And  this  not  having  been  done, 
although  the   declaration   contained  averments 


that  tlie  plaintiffs  had  employed  ordinary  cau- 
tion.    A  new  trial  was  ordered. 

Ward  tt  iix.   v.  Thv  City  of  lln/i/nx, 

;i\.  S.J).,  'J(M. 

24.    Xegllgenre    In    regard  to  drain  — 

Where  plaintitf's  horse  was  injured  by  falling 
into  a  deep  uncovered  ilraiii  by  the  side  of  a 
road  ill  the  suburbs  of  the  City, 

Hilil,  that  the  drain  being  proved  to  be  well 
constructed,  and  of  a  kind  (uiuovered)  usual  ill 
the  suburbs,  the  City  was  not  liable. 

Mai'kinlay  v.  Tht-  City  of  Halifax, 

'2R.  &C.,  .S05. 

2.).    Negligence  -  Liability  of  CItjr  for- 

Plaintifl' sustained  an  injury  from  earth  left  on 
the  street  by  V'.,  who  had  obtained  permission 
from  P.,  a  public  officer  (Suiieiiiitendeiit  of 
Streets)  in  the  eniiiloy  of  defendants,  to  )>laco 
th'.j  earth  there,  but  not  to  leave  it  there  after 
ten  o'clock  at  night.  The  earth  was  left  on  the 
street  all  night,  but  the  accident  occurred  before 
ten  o'ch)ck.  It  did  not  appear  that  the  defend- 
ants were  aware  of  the  earth  being  so  deposited 
or  left. 

//»/'/,  that  as  the  defendants  were  a  public 

I  body,  discharging  a  jmblic  duty  gratuitously, 

i  and  had  no  share  or  participation  in  the  wrong 

complained    of,    it    having    been    done    without 

,  their  consent  or  knowledge,  they  were  not  liable, 

and  that  the  action  could  not  be  maintained. 

EntiH  V.  Thr  City  of  Halifax,  1  Old.,  111. 

!    '26.    Nuisance  -Removal  of  — Defendant 

I  removed  phiiiititf's  porch  as  a  nuisance,  and 
justified  as  being  a  ccmimittee  of  the  City  Coun- 
cil duly  authorized  to  remove  anything  which 
was  a  nuisance,  encroachment  or  annoyance  on 
;  any  of  the  streets.  The  evidence  showed  that  the 
porch,  which  encroached  upon  the  public  street 
several  feet,  had  been  in  existence,  just  as  it 
'  was  when  pulled  down,  for  a  period  of  sixty 
years.  There  was  no  evidence  as  to  the  origin 
or  iledication  of  the  street,  and  it  did  not  appear 
whether  the  porch  or  the  street  were  the  more 
ancient. 

Held,  ill  the  absence  of  evidence  as  to  the 
original  laying  out  of  the  street,  its  dedication 
to  the  public  should  be  taken  as  subject  U>  the 
encroachment  in  question,  and  that  the  verdict 
for  defendants  should  be  set  aside. 

Haijarty  v.  Prycyr  et  al.,  2  N.  S.  D.,  532. 

27.   Provincial    Legislature  —  Power    to 

authorize  the  imposition  of  license  fees  on 
insurance  companies— Construction  of  British 
North  America  Act,  s.  92,  sub.  sec.  9— The 


C27 


HALIFAX.  CITY  OF. 


6S8 


Provincial  Acts  of  1883,  c.  28,  «.  'J3,  proviiled 
tliat  in  tlio  cliau  of  inHiirancu  ci)ni|Nkniu)i  doing 
buMinuHH  in  tho  City  of  Halifax,  tlio  jiroporty  of 
the  ooinpanioH  within  tliu  ''ty  hIiouIcI  he  liahle 
to  uHMOHHniunt  in  the  name  way  aH  tlie  jiroperty 
of  other  ratepayers,  anil  aUo,  that  every  «ncli 
company  Hhoiilit,  in  addition  tliereto,  pay  an 
annual  license  fee,  and  that  wliere  any  uoinpany 
WM  cngiig'.'d  in  n\ore  tiian  one  luanoh  of  hiiMi 
neHH,  it  Hhoiild  ])ay  a  licenHe  fee  for  each  branch 
of  its  liUHineMM. 

Hild,  tliut  tho  right  to  empower  the  impo- 
sition of  Much  license  fees  was  witiiin  the  powers 
of  the  Provincial  Legislature,  under  section  92, 
suli-section  9,  of  the  British  Nortii  America  Act. 
The  City  of  Halijax  \.  Thf  Wii/irn  Aiiitmiin 
Comjiaiiy,  0  K.  &  (i.,  387. 


28.    Nuisance  in  the   higliway  -Special 

damages— Whether  City  liable  for  non-repair 
of  street  damaged  by  ice  and  snow — Notice  of 
action— Lawful  traffic — The  principal  streets 
of  Halifax  were  in  such  a  condition  from  accu- 
mulation of  ice  and  snow  hardened  into  irrcg- 
uhirities  of  surface,  tliat  tiie  ))laintitr,  owner  of 
a  line  of  omni))Usses,  had  ids  veiiiclcs  injured 
and  suffered  loss  of  custom.  The  non-repair 
continue<l  most  of  the  winter  and  after  full 
notice  to  the  City  authorities. 

Ile/il,  Ist,  that  the  City  was  liable  for  plain- 
tifFs  injuries  ;  '2nd,  that  negligence  had  been 
proved  ;  3rd,  that  plaintiff  was  not  guilty  of 
contributory  negligence  in  not  using  other 
streets  instead  of  those  complained  of  ;  4th,  that 
notice  of  action  by  plaintiflPs  attorney  was  suffi- 
cient and  unobjectionable,  although  in  the 
alternative  as  to  amends  being  paid.  Where  an 
individual  or  corporation  is  lialile  to  indictment 
for  non-repair,  an  action  will  lie  at  the  suit  of 
one  who  suiurs  special  injury.  Liability  is  not, 
in  all  cases,  to  bo  inferred  from  enactments 
placing  the  highway  under  defendant's  control. 
The  obligation  must  have  been  imposed  on  or 
transferred  to  defendant. 

No  distinction    exists    between  nonfeasance 
and  malfeasance  in  relation  to  such  liability. 
IValker  v.  The  City  of  Halifax,  4  R.  &  G.,  37  L 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  1st,  Ritchie,  C.  J.,  dinnentinij,  that  it 
was  the  duty  of  the  corporation  to  keep  the 
streets  in  good  repairs  ;  and  2nd,  Gwynne,  J. , 
diKnetitinrf,  that  the  plaintiff  was  entitled  to 
retain  his  venlict,  having  proved  special  injury, 
and  the  damages  awarded  not  being  too  remote 
or  excessive. 

The  City  of  Halifax  v.  Walker,  16th  Feb.,  1885, 

Gas.  Digest,  98. 


W.    Recorder  -Costa  wbere  City  success. 

fUl — The  City  ordinances  authorized  the  Council 
to  apiM>int  a  Recorder  at  a  salary  in  lien  of  ull 
fees  for  services,  and  maile  it  his  duty  to  act  for 
the  City  as  counsel  and  attorney. 

Hild,  that  notwithstanding  the  Recorder  was 
a  salaried  officer  and  could  not  have  taxed  cost* 
against  the  City,  oslMitween  attorney  and  clii^nt, 
the  plaintiffs  Mere  entitled  in  a  suit  in  which  tht'y 
had  succeeded  to  his  costs  as  attorney  againut 
the  defendant. 

The  City  of  Halifax  v.  liomam,  2  R.  &  C.,  'J71  ; 

1  C.  L.  T.,  708. 

!    30.    Stipendiary  Magistrate  —  Conviction 

I  by — The  defendant  having  been  convicted  of  a 
violation  of  tho  charter  of  the  City  of  Halifiix, 
Acts  of  lS(i4,  chapter  81,  section  227,  by  kcciiiiig 
a  disorderly  house,  was  adjudged  to  pay  tiie  sum 
of  §40,  aiul  "  if  tlie  said  sum  be  not  f-,)rtli\vitli 
paiil,  to  be  imprisoned  in  the  City  prison  for  the 


space  of  ninety  days." 

Ill  Id,  tliat  the  alternative  piniishmont  imposed 
was  authorized  by  scctiim  13!)  of  the  Act. 

AUo,  tiiat  under  the  Acts  of  1882,  ciiajjU'r 2.'), 
i  section  Ift,  the  penalty  Mas  clearly  recoverable iii 
the  name   of  the   City  of   Halifax   before  tho 
Stipendiary  Magistrate  at  tiie  police  court. 

Th<  City  of  Halifax  v.  liroim,  0  R.  &  (J.,  Hi.l 
i 

31.     Stipendiary  Masistrate  of  City  - 

Certiorari  of  conviction  made  by — Where  con- 
'  victions  by  the  Stipendiary  Magistrate  of  the 
,  City  of  Halifax,  under  section  140  of  the  city 
charter,  aie  brought  up  by  certiorari,  the  court 
can  review  any  matter  of  law,  but  cannot  inter- 
fere M-ith  the  decision  in  respect  to  the  facts. 

t^ueen  v.  Lery  et  al.,  3  R.  &  C.,  51. 

32.   Street  railway  -Mandamus  to  compel 

laying  of  rails  even  with  the  surface  —  The 
I  defendant  company  obtained  an  Act  enabling  it 
,  to  maintain  a  line  of  horse  cars  in  the  City,  l)Ut 
:  requiring  it  to  provide  rails  of  the  most  approved 
'  pattern,  and  lay  them  even  with  the  surface  of 
the  streets,  so  as  not  to  interfere  with  the  pas- 
sage of  vehicles,  and  to  keep  the  roadMay  in 
repair  within  the  track  and  three  feet  on  each 
side.     Defendants  having  ceased  to  operote  the 
line,  the  roads  fell  out  of  repair,  and  the  rails 
protruded.     After  the  commencement  of  this 
suit,  which  was  for  a  mandamus  to  compel  the 
defendants  to  have  the  rails  laid  even  witli  the 
surface,  and  to  put  the  roads  in  repair  as  re- 
quired by  tho  Act,  the  City  authorities  in  many 
instances  covered  the  streets,  on  which  the  rails 
were  laid,  with  stones. 
Held,  that  the  City  had  a  right  to  proceed  by 


629 


HALIFAX,  CITY  OF. 


630 


inanilitinuM,  ami  wan  tint  i)l)ligo<l  to  roanrt  to  an 
in<li<'tiiiont  of  tho  nuiKuiico,  or  to  prncuutliii^H  to 
fine  the  (lofmuluiitH  umler  llio  Act  of  1870,  c.  W), 
for  violation  of  thu  proviHion*  of  their  Act  of 
Iiu'orporation,  nuitluir  of  tliunu  cniirHCH  proHcnt- 
iii^'  II  rcini'ily  aH  liuiuticial  aH  tliu  proccuilinj;  liy 
niiiiiilainuN,   Init   timt  tho   maiidaiiuiH  tnUHt   hu  | 
liinitcil  in  itit  opc'ratioti  to  thoao  NtrxutH  on  wliich 
til*' riiilway  had  not  ixjun  covered  ItytliuCity 
aiithoriticM,  as   thu  action  of  tlio  City  in   tliiM 
ri'spt'c't   luiil  inipoNcd   an    iinrcusonalilo  burden  ' 
upon  thu  company  in  removing  the  ntoncH. 
The  City  of  Halifax  v.  The  City  Unilimy  Co.,  i 

R.  K.  I).,  ;{i». ; 


33.   Sewers  In,  -  The  Provincial  Act  of 

IH'li,  c.  14,  8.  1,  omi)owured  the  Hoard  of  Com- 
misfinncrs  of  City  Works,  under  tlie  mmctioii  of 
till'  City  Council,  to  order  tlio  construction  of  a 
si'wiT  along  liny  street,  without  the  re(|uisition 
of  owners  of  property  along  the  street,  and  the 
Acts  of  1H74,  c.  ',V2,  8.  I,  i)rovided  that  upon  the 
jH'titioii  of  half  the  owners  of  property  on  any 
street,  and  the  deposit  with  the  City  Treiuurer 
of  certain  amounts  chargeiilde  under  the  Act,  the 
City  Council  should  order  a  sewer  to  i>o  con. 
jitiucted  unless  for  sutticient  reasons  to  the  con- 
tiMiy.  The  Act  of  1S74  further  repealed  a  sec-  , 
tiiiii  of  the  Act  of  1S7.'1  and  snhstituted  therefor 
a  section,  pointing  out  the  manner  in  wliicii  the 
cost  of  construction  should  he  borne  and  provid- 
ing that  all  moneys  chargcalile  to  property 
owners  under  that  Act  8hnul(l  become  due  from 
the  order  or  resolution  to  construct  a  new 
sewer,  whether  such  sewer  had  been  petitioned 
for,  or  ordered  by  the  Council  for  the  benetit  of 
the  City  without  petition.  The  owners  of  pro- 
perty on  South  Park  Street  applied  by  petition  ' 
for  11  sewer  from  Victoria  Road  along  Sf)Uth 
Park  Street  to  Inglis  Street,  480  lineal  feet. 
Q'he  City  Engineer  reported  upon  the  petition  ; 
that,  in  order  to  provide  a  proper  outlet  for  the 
proposed  sewer,  it  wouM  ]ni  necessary  to  build 
850  lineal  feet  down  Inglis  Street ;  upon  which 
•  the  Council  passed  a  resolution,  "  that  the  peti- 
tion of  the  ratepayers  in  South  Park  Street  and 
Inglis  Street  for  the  construction  of  a  sewer 
OH  mid  slreeJ.i,  together  with  the  report  of  the 
Engineer  thereon,  be  received  and  adopted,  and 
that  the  Board  of  Works  be  recjuested  to  have 
such  sewer  constructed."  The  sewer  was  con- 
structed, and  a  suit  brought  against  defendant, 
who  lived  on  Inglis  Street,  for  his  portion  of  the 
costs  of  construction  on  Inglis  Street. 

Md,  that  the  Council  had  power  to  order  the 
construction  of  a  sewer  on  Inglis  Street  without 
any  petition,  to  the  cost  of  which  property 
owners  on  Inglis  Street  were  bound  to  contribute, 


and  that  tho  ro*olution  might  be  regarded,  Hrst, 
as  authorising  the  construi'tion  of  a  sewer  on 
South  I'art  Street,  in  compliance  with  the  peti- 
tion of  tho  property  owner*  on  that  street,  and 
secondly,  as  an  order  emanating  from  tho 
Council  itself  for  tlio  construction  of  a  sower  on 
Inglis  Street,  irre8)>ective  of  any  petition. 
The  City  of  Halijax  v.  Sf.iloii,  W  R.  &  ('.,  '-'45. 

34.  Sewen  In  (he,— The  Sewerage  Act  of 

IH7.1,  cap.  14,  provided  that  wherever  two- 
thirds  of  the  ratepayers  in  any  street,  &c,, 
should  petition  for  a  sewer  tho  same  should  be 
constructeil,  and  that  one-fourth  of  the  cost 
shoulil  be  paid  by  a  special  assessment  on  the 
owners  of  real  estate,  &c.,  such  assessment  to 
be  immediately  payable  on  the  completicui  of 
the  sewer.  Tho  Act  rif  1H74,  passed  May  7th, 
repealed  these  provisions,  and  jirovided  that 
where  one-half  of  tho  owners  of  property  on  any 
street,  &c.,  petitioned  and  deposited  the  amounts 
chargeable  according  to  the  Act,  the  Council 
shoidd  order  a  drain  to  Ik;  constructed.  Pre- 
liminary steps  having  boon  taken  for  the  uon- 
struction  of  a  sewer  past  defendant's  property, 
on  April  'i-Jml,  1S74,  the  report  of  the  engineer 
was  accepted,  and  the  Hoard  of  Works  author- 
i/cd  to  carry  it  into  effect,  but  the  teiuler  and 
contract  bore  date  respectively  June  I'lth,  and 
.ftily  'Jnd,  1H74.  Tho  suit  was  instituted  under 
the  Act  of  1873. 

Ilild,  atHrming  the  decision  of  the  County 
Court,  that  there  were  no  aci|uired  rights  on 
the  part  of  the  City  against  the  defendant  under 
the  Act  of  1873,  and  that  the  Act  of  1873  hav- 
ing been  repealed,  the  plaintiff  must  be  non- 
suited. 
The,  City  of  Halifax  v.  Edwardn,  3  R.  &  C,  KM. 

35.  Taxes,  claim  of  City  for-The  City  of 

Halifax  has  no  preferential  claim  for  taxes  against 
the  assignee  under  the  Insolvent  Act  of  1875. 
In  re  Frederick  II.  A".  Marter, 

3R.  &G.,4P2. 

36.  Taxes,  lien  for  — The  City  of  HallHix 

has  no  lion  upon  real  estate  for  taxes,  sectioti 
342,  of  chapter  81,  of  the  Acts  of  1864,  having 
reference  only  to  personal  property. 

Almon  el  al.  v.  Hutt,  R.  E.  1).,  426. 

37.  Taxes,  lien  for— Defendants'  testator 

mortgaged  certain  property  to  plaintiff,  who 
afterwards  foreclosed,  and  the  property  was 
offered  for  sale  April  10th,  1876,  and  bid  in  by 
John  McDonald,  who  paid  a  deposit  of  1^300,  but 
failed  to  complete  the  purchase.  The  property 
was  again  offered  for  sale    Novenilier  19th,  1877, 


031 


nitmwAY. 


{>'.]i 


and  ri>iili/(<il  II  Hiini  wliii'li,  with  tli(>  ilciHii'it  {mid  I  nil  it  IhuhI    wli(>ri'l>y  liu  linuinl  liiiiiHclf  iiiul  liU 

(III  the  tii'Ht  Muli',  MiitiMticd  lilt'  pluiiititr'M  nmrt-  lii'ii'H  fur  t lie  nmiiitviiiiiicu,  among  otIierN,  ii(  tho 

t;»i(*'  <'"<l  l*''t  Ik  Mui'idiiN  of  :*:<'.>'.'. VHI.     LJ|i<iii  iIiIh  pluintiT. 

HUi'|iliiN  li  claiiii  wuM  timdi'  uiiili'i'  H.  S.  cap. '.'I,  Jftlil,  tliiit   the  ri'iniiKni  law  {irinuiplu  iiiidur 

Hfi'.  N|,  for  tiixi'H  due  liy  tcHtiiior  fur  |H74-r>-(l".  wliicli  tin-  lu'ir,  liaviii>{  imm'ts  from  IiIm  aiicfHtur, 

Mi'lhiimld,  who  liitd  did  in  the  proju-rty  iit  tin-  coiild  lie  made  lialiltMni  Miich  a  lioii<t,  waKi'iitinly 

hi-Nl  Mtlt',  lii'iil  a  m'cniid  mortga(,'i'  upon  it  to  inapplii'iilik' to  tlii^  position  in  wliioli  tliu  Mtatule 

more  than  tin-  amount  ri'inaiiiinfj;  in  t)iu  MhiTilfH  of  diNtriimtioiiH  (iliui'd  iiiin  in  thiH  provincf  ;  that 
liaiiclM,                                                                           '  thi'  Itoiid,  aitlioiigli  iiainiii);  tliu  hi'ir,  waM  imi  a 

//</'/,  tiiat  thi!  Htatiltc  wiiM  not  applicahjt'  to  ohargv  on  leal  CMtatc,  and  tiiat  thu  actiun  could 

till'  rant',  iiM  the  Mali'  rt'ft'rri'd  to  in  thf  tirxt  hraiifh  not  lit'  MiiNtaini'd. 

of  tlio  Hi'otion  wan  a  wall'  hy  thf  pormpii  ouing  Mrl.illaii  v.  AfrLil/nn,  1  l{.  fii't.,  S(». 
tli«'  lati's  at   the  time  of  the  nuIc,  whi'i-eaH  tlii' 

ti'Htator  had  eonvcyt'd  the  property  i.y  the  j.    WIdow  not  Included  In  word  liclrn- 

inortKaneH  lieforo   the  ratuH   had   hecoino   duo,  Testator'n  brother   included    -  A  toxtatoi    Ue- 

and  the  property  had  not  l.eeii  taken  under  any  ,,,„.jithed  a  certain  hiiiii  of  money   to  his  wife, 

"proieHH  of   law"    within   the  meaning  of  the  wjiidi  he  Htated  lie  Hupposed  to  be  one-third  of 
wordv  ill  the  latter  part  of  the  Heotioii. 

H/iiilc  V.  Mui-rny  it  (tl.,  K.  K.  l).,;ni. 


IIAKBOK  KEOl'lATIONS  - 
Violation  of- 


Su-  SHIPPING. 


the  worth  of  \m  property  after  the  payment  of 
liirt  delitx  and  iieieNHary  expenneH.  |{y  huIinu- 
(jiieiit  clauHesi  he  devised  a  lot  of  lainl  to  one  of 
hia  ehildren  and  be<|Ucatliod  Hpeeitie  huiiih  to 
•ilhei'H  of  lii»  children,  and  to  hin  brother,  these 
Slims  amounting  in  the  whole,  together  with 
the  value  of  the  lot  of  land,  to  the  leliminiiig 
two-thirds  of  the  eHtimated  value  of  his  property. 
In  a  further  clauHe  he  said  ;— "  If  after  l)ayiiig 
my  debts  and  necessary  expenses,  there  should 
be  a  greater  muiii  than  1  have  counted  on  or  con- 
veyed, my  wife,  with  each  and  every  of  the 
heirs,  shall  iiarticijmte  in  or  receive  of  said  sum 
Fee  Illegally  Charged  for  license -Recover}'  in  the  same  projiortion  as  I  have  already  idl..tted 
of— A  pedlar  was  informed  that  he  would  not  lie  j  to  them  ;  and  if  there  should  not  be  a  sullicicut 
allowed  to  sell  oil  in  the  Town  of  Uiirtmortli  I  g„ni  to  pay  the  sums  conveyed  or  allotted  to 
without  a  license,  and,  rather  than  stop  his  !  each  heir,  each  and  every  heir  shall  sustain  » 
business  or  contest  the  right,  he  jMiid  the  fee.  '  i„8h  in  [iroportion  to  the  sum  already  allotted  to 
The  County  Court  Judge  held  that  the  money  i  them.' 

having  been  jmid  voluntnrily,  could  not  be  re-  j      The  estate  yielded  a  much  less  sum  than  was 
covered.  estimated  by  testator. 

Hilil,  reversing  tliis  judgment,  that  the  money       Hdil,  that  the  widow  was  not  included  in  the 
could  be  recovered  back   under  the  count  for    word  "  heirs  "  and   that   therefore   her  legacy 


HAWKERS  AND  PEDLARS. 


money  had  and  received, 

Hancock  v.  The  Town  of  Dartmouth, 

2R.  &(J.,  129. 


HEALTH. 

Members  of  Board  of  Health  are  public 

agents   not  individually  liable  for  contract 
made  on  behalf  of  public— 

See  CONTRACT,  61. 


HEIR. 


1.   Liability  or,  on  bond  of  ancestor— An 

action  was  brought  against  the  heir  of  an  obligor 


should  not  abate  ;  that  the  testator's  brother 
was  so  included  ;  and  that  after  the  payment  in 
full  of  the  specific  legacy  to  the  widow,  all  the 
other  legacies  should  abate  proportionally. 

In  ft  KxlHte  of  Woodworth,  1  Old.,  101. 


HIGH  SEAS- 
Offence  committed  on— 

See  CRIMINAL  LAW,  25. 


HIGHWAT- 
See  WAT. 


«]:):i 


HOSPITAL 


an* 


IIIKINU. 
ronlrartor   DhmlMalormrnlalNrnnnt 

Niitii'c  riaiiilitV  liiiril  with  ili't'cuiliiiil  us  lit'inl 
j{uiil('m'i',  rt'('i'iviii|;{  h  iritain  Huliiry  pri'  yciiriiinl 
u  per  triitikgc  (III  tliu  fiuit  of  tliu  gni|i(>ry,  ami 
lit  llic  tiiiir  iif  tlit>  liii'iiitj  waN  ill  Dociipation  of  u 

lllll.lll  llOllHC  nil   till'     I'Nllltl'.        A    fl'lli   ".■  Ht'lVllIlt    llf 

tlic  iiliiiiilitl'  wiiH  oiiliTfil  til  n"  •"  '''  K''"l"'''y  '" 
;;i't  M)im^  vim;  Iviivch,  uml  |iluiiitiii',  kmiwiiijL^  tiiiit 
III'  liiiil  livuii  HI)  mint,  Inlil  lU'fcliiliuit,  wlimii  lie 
iiH't  ^Imi'tly  iifti'i'NViii'ilM,  that  if  iu;  riiil^'iit  him 
llii'ic  ii),'iiiii  ill*  wiiiitil  kii'k  iiiiii  iiiit,  LiiiigiiaKi! 
of  tiiu  Millie  kiml  wum  iihlmI  in  ]ii't>MinL'u  nf  luiothir 
Ki'ivaiit,  ami  witli  a  purMDiiiil  ruffi'i'iicii  tii  tiu' 
ili'fi'iiiiant  liiiiiHt'if.  After  niiiiii'  ihiyH,  |ilaiiititr, 
hiiviii;;  rxplfMNi'il  no  ri'm'iit,  wan  toiil  liy  duft'iiil- 
aiit  that  h(!  inimt  leavii  at  tiui  L-ml  of  tiu'fu 
iiiiiiiths,  ami  at  tiiu  t'xpiration  of  tiiat  pui'i  id 
till'  ili'l'i'inlaiit  iiiMtriicU'il  IiIm  Holiiitnr  to  taku  nil 
hiMfiil  sti'pK  to  turn  pli'.iiititl'imt  of  the  Iioiihu, 

Ihhl,  that  tliu  oonihict  of  tliu  plaiiititV  jimtiliuil 
till' ilrfi'iiilant  ill  ttiMiiiiMHiiig  him  without  iiotiuu, 
mill  lliiit  his  iii,'lil  to  oL'i.'iipy  the  Iioiinu  cuaseil 
with  the  tt'iiiiiiiatioii  of  his  survii.'o. 

ijiianr,  Whutliur  tliu  Knglish  I'lmtoni  allowing 
till'  iliNiiiiHHal  of  a  muiiial  Hurvant  on  a  month'H 
nut  ill',  without  eauHu,  although  liirud  for  a  yuai', 
I'xists  ill  this  I'l'ovince. 

Fl>'mi)i;i  v.  ffil/,  1  K.  *  ('.,  'J«8. 

.Si  ,  r«/.o,  COXTRAtT- 

BIIiLS  OF  SALE,  17  ^:  IH. 


HORSE. 
1.    Injuries  caused  by-Liablllt}'  for  — 

l)i'fi'iiiliuit's  horses  and  carriage,  driven  by  his 
servant  westerly  along  Sjjring  fiarden  Road, 
met  iippositu  the  gate  of  dufundant's  stalilc  yard, 
^itllilte  mi  tliu  northern  side  of  thu  road  a  horse 
iiml  truck  coining  in  the  opposite  direction,  and 
iiisteail  of  passing  on  thu  southern  side  atteinpt- 
cil  to  pass  on  the  sidu  nearest  the  stable  yard, 
the  intention  of  the  driver  being  to  proceed  to 
a  house  a  few  yards  west  of  thu  stablus,  when 
the  horses  suddenly  turned  in  towards  the  yard, 
knot'kiiig  down  and  injuring  plaintifT  who  was 
coming  along  the  sidewalk  near  the  gate.  A 
rule  having  been  taken  to  set  aside  the  verdict 
found  ill  favor  of  the  plaintiff  for  .*!400, 
Hthl,  that  the  verdict  must  be  sustained. 

Loinidi  V.  Rohimon,  2  R.  &  C,  364. 

'2.   Negligence  of  servant  —  Contributory 

negligence — In   an  action   brought   to  recover 
damages  for  an  injury  done  plaintiff's  horse, 


driven  by  liia  Korvnnt,  through  the  alleged 
iiiiNkilfiil  mill  iicgligi'iit  driving  of  a  liiirni'  and 
Nli'igl,  of  di'l'emlaiit  by  his  leivaiit,  one  of  plain- 
till's  two  witiiuHsuN  tuHtilled  that  plaintilf'H  itur- 
vaiit  was  driving  fast  and  defendant's  servant 
slow  ly,  and  plaiiititf's  .servant,  his  ntlier  witiiesH, 
admitted  that  he  was  driving  pretty  fast,  that 
liu  saw  defendant  four  or  live  lengths  oil',  thu 
time  wan  evening  and  neither  party  carried 
lamps,  on  the  wrong  side  of  the  road  ;  that  he 
eiiiild  have  passed  on  the  other  side,  but  kept 
on  iiH  hu  wa«  going.  There  was  eontradiutory 
I'viili'iicu  as  to  thu  situation  of  the  parties  at  the 
time  of  the  accident.  A  venliil  foiiml  for 
plaint  ill'  was  set  aside,  thu  Court  holding  that 
the  evideiicu  of  iiegligencu  on  the  part  of  de- 
fendant was  not  siitliciunt,  and  that  plaintitl's 
servant  was  guilty  of  contributory  negligence. 
Vonlmi  V.  Coiwlly,  I  |i,  *  (',,  O.'i. 

3.  Misuser  of    Where  a  person  hiring 

\  fiiim  another  a  hor.so  and  waggon,  with   seats 
for  two  persons,  places  three  therein,  and  the 

I  horse  on  the  journey  sickens  and  dies,  he  will 
be  liable  because  of  the  misuser. 

Cam  y  V.  Airhilia/il,  '2  Thom.,  4. 

4.  Part  ownership  of   Right  or  set  olT— 

To  a  declaration  by  plaintitf  for  the  price  of  one 
half  interest  in  a  horse  alleged  to  have  been 
sold  by  plaintitf  to  defendant,  plaintitf  retaining 
the  other  half  interest,  defendani  pleaded  among 
other  jileaa  a  set  off  for  the  keep  and  care  of  the 
horse,  and  expunacs  connuctud  with  taking  the 
horse  to  and  from  'i'ruro,  while  the  joint  owntr- 
ship  lasted.  The  Judge  of  the  County  Court 
ruled  that  defendant  could  not  off  set  his 
account,  aa  that  would  bu  off  setting  a  partner- 
ship matter,  depending  upon  an  adjustment  of 
accounts  between  the  parties,  plaintitf's  claim 
being  for  property  brought  into  the  partnership. 
Ill  Id,  that  thu  rujuction  of  the  set  otf  was 
wrong,  and  that  the  juilgnient  below  must  bu 
reversed. 

McDonald  v.  Power,  3  R.  &  C,  340. 


HOSPITAL. 
Liability  of  patient  to  pay  for  surgical 

operation — Plnintifl',  who  at  the  time  waa  visit- 
ing surgeon  of  the  City  Hospital,  performed  a 
surgical  operation  upon  the  deceased  of  whom 
the  defendant  was  administratrix.  Dr.  Mc- 
Fatridge  had  been  attending  deceaaed  in  his 
illness  with  Dr.  Parker  as  consulting  physician. 
The    latter   advised  the  deceased  to    have  the 


635 


HUSBAND  AND  WIFE. 


63t> 


operation  performed  in  the  hospital,  telling  him 
that  plaintiff,  as  house  suigeon  for  the  time, 
would  perform  the  operation,  and  he,  Parker, 
would  assist.  Deceased  assented  to  the  opera- 
tion being  performed  by  the  plaintiff,  and  it  was 
performed  successfully. 

Hddf  that  although  the  hospital  was  primarily 
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,  &c.,  the  plaintiff 
could  recover  on  an  implied  assumpsit. 

Farrell  v.  McLaren,  3  R.  &  C,  75. 


HOVSE- 
Attacbment  of,  to  soil— 


.^ee  TROVEB. 


HOUSE  OF  ASSEMBLY- 

Powers  of— 

See  ASSEMBLY,  HOUSE  OF. 


HUSBAND  AXD  WIFE. 

1.  Admissions  by  Iiasband  —  Tbe  admis- 
sion of  a  husband,  as  to  the  boundaries  of  land 
held  by  him  in  right  of  his  wife,  are  not  binding 
upon  the  wife  after  his  decease.  DesBarres,  J. , 
dissenting. 

Dill  v.  Wilkins,  James,  113. 

2.  Ante-nuptial  settlement— Power  of  the 

Court  to  vary,  after  decree  for  divorce  for 
adultery— Effect  of  Act  enlarging  powers  of 
Court,  passed  after  petition  but  before  decree 
— Innocent  party  to  settlement- On  the  3rd 
November,  1884,  plaintiff  filed  a  petition  in  the 
Divorce  Court  praying  a  dissolution  of  his  mar- 
riage with  the  defendant,  B.  S.  M. ,  on  the  ground 
of  her  adultery  with  W.  L.  On  the  19th  May, 
1885,  the  decree  prayed  for  was  granted.  After 
the  filing  of  the  petition  for  divorce,  but  before 
the  making  of  the  final  decree,  the  Act  of  1885, 
c.  15  was  passed,  giving  power  to  the  Court  to 
"  alter,  vary  or  set  aside  any  settlement  made 
by  and  between  parties  whose  marriage  shall 
have  been  dissolved,"  with  the  same  powers  in 
reference  to  the  application  of  the  whole  or  any 
portion  of  the  property  disposed  of  by  such 
settlement  as  the  parties  thereto  had  at  the 


time  of  the  execution  of  such  settlement,  und 
providing  that  "  the  Court,  on  exercising  such 
powers  shall  have  regard  to  the  conduct  of  the 
i  parties  to  such  marriage,  and  may  exclude  in 
whole  or  in  part  from  any  benefit  under  such 
settlement  any  party  who  shall  have  been  found 
guilty  of  adultery  by  the  sentence  or  decree  of 
the  Court." 

Under  this  enactment  proceedings  were  com- 
menced on  behalf  of  the  plaintiff  to  set  aside  a 
marriage  settlement  made  by  him  in  favor  of 
B.  S.  M.,  and  a  provision  in  favor  of  M.  A.,  a 
niece  of  B.  S.  M.,  as  follows: — "To  pay  the 
sum  of  84000  toM.  A.,  or  to  such  other  person 
as  the  said  B.  S.  M.  shall  by  deed  or  by  her  List 
will  and  testament  name  and  appoint. " 

Held,  that  the  enactment  having  come  into 
force  before  the  making  of  the  final  decree, 
though  after  the  commencement  of  the  divorce 
proceedings,  the  Court  was  invested  with  the 
enlarged  powers  therein  contained  for  altering 
the  settlements  and  directing  the  disposition  of 
the  property. 

In  pursuance  of  such  power,  the  defendant, 
B.  S.  M.,  was  excluded  from  all  benefit  or 
power  under  the  settlement,  but  in  regard  to 
M.  A.,  the  niece,  who  was  an  innocent  party, 
it  was  directed  that  the  settlement  should  be 
carried  out  as  if  B.  S.  M.  had  died  in  the  life- 
time of  the  plaintiff  without  making  any  ap- 
pointment, provided  that  if  M.  A.  died  in  the 
lifet-me  of  the  plaintiff,  the  principal  should  go 
to  him  on  her  death. 

Church  v.  Christie  et  al.,  20  N.  S.  R., 

(8R.  &G.),  468; 
9  C.  L.  T.,  254. 


3.    Breach  of  promise  of  marriage  — 

Action  for  —  Evidence  of  seduction — Pleading 
— In  an  action  for  breach  of  promise  of  marriage, 
evidence  of  seduction  before  the  promise  was 
received,  although  seduction  had  not  been  al- 
leged in  the  statement  of  claim. 

The  evidence  was  objected  to  solely  on  the 
ground  that  it  was  not  alleged  in  the  pleading. 

Semble,  that  as  the  defendant  entered  into  the 
contract  in  consequence  of  the  condition  of  the 
plaintiff,  all  evidence  iu  relation  thereto  would 
be  admissible. 

Held,  ihat  as  the  objection  that  the  seduction 
was  before  the  promise  was  not  taken  at  the 
trial,  and  no  reference  was  made  by  the  Judge 
in  charging  the  jury  to  the  seduction  as  an 
agg 'avation  of  damages,  the  admission  of  the 
evidence  was  not  ground  for  new  trial,  particu- 
larly as  the  damages  were  not  excessive. 

Held,  also,  that  evidence  of  improper  conduct 
on  the  part  of  the  plaintiff  before  the  contract 


637 


HUSBAND  AND  WIFE. 


638 


had  been  entered  into,  and  of  general  reputa- 1 
tion,  was  properly  excluded,  as  such  evidence ' 
afforded  no  defence  to  the  action  ;  and  if  oflfered  | 
in  mitigation  of  damages,  should  have  been  so 
tendered,  and  the  attention  of  the  judge  directed 
to  it. 
Embree  v.  Wood,  20  N.  S.  R.,  (8  R.  &  G.),  40. 

4.    Breach  of  promise  of  marriage  — 

Seduction  —  Where    action    was   brought    for 
breacli  of  promise  of  marriage, 

Ildd,  the  seduction  of  plaintiff  and  conse- 
quent pregnancy,  may  be  given  in  evidence  in 
aggravation  of  damages. 

Held,  also,  that  the  statement  of  a  party  to 
witness  that  he  had  had  previous  connection 
witli  her,  was  not  admissible. 

Oilmore  v.  Dewar,  1  Thom.,  (Ist  Ed.),  73; 

(2nd  Ed.).  101. 


5.   Bigamy— 


^ee  CRIMINAL  LAW. 


6.  Contract  by  wife— Action  against  wife 

on  promissory   note  made  by  her— Plea   of 
coverture — Evidence — In  an  action  on  a  promis- 1 
ory  note  against  a  married  woman  defendants  i 
pleaded   coverture  to  which    plaintiff  replied,  | 
Betting  out  an  order  for  protection   in   conse- 1 
qiience  of  desertion  by  her  husband,  made  under  I 
Revised  Statutes,  c.  86.      Defendants  rejoined 
that  long  before  the  making  of  the  note   she 
returned  to  her  husband  and  had  since  lived  and 
co-habited  with  him  and  was  so  living  and  co- 
habiting at  the  time  of  making  the  note,  and  the 
desertion   had  wholly  ceased  as  plaintiff  well 
knew.    The  facts  set  out  in  the  rejoinder  were 
fully  proved. 

Iltld,  sustaining  the  decision  of  Johnstone^  J., 
of  the  County  Court,  that  the  plaintiff  could  not 
recover. 

Weatherbe,  J.,  dissenting. 
Sinclair  v.  Wakefield  et  al.,  1  R.  &  G.,  465. 

7.  Clin  by  wife  with  consent  of  husband 

—A  wife  in  the  presence,  and  with  the  apparent 
assent  of  her  husband,  gave  a  gold  chain,  which 
he  liad  previously  presented  to  her,  to  a  third 
party,  in  trust  for  their  child,  an  infant  eix  years 
old. 

Held,  a  valid  gift  inter  vivos  binding  the  hus- 
band, and  that  he  could  not  after  the  wife's 
death  recover  possession  of  it  in  an  action  against 
the  tliird  party,  either  in  his  own  right  or  as  the 
guardian  of  the  child. 

Tancred  v.  O'Mullin  etal.,2  Old.,  145. 

8.  Judgment -Action  on  — Husband  of 

wife  against  whom  judgment  before  her  mar- 


riage, like  other  defendants,  cannot  plead 
matter  of  defence  to  original  action  —  To  an 
action  on  a  judgment  the  defendant  cannot  plead 
any  fact  which  might  have  been  pleaded  as  an 
answer  to  the  original  ai:tiou.  Where  a  party 
has  obtained  a  judgment  against  another,  he  may 
proceed  upon  it  at  common  law,  and  is  not  com- 
pelled to  proceed  by  writ  of  revivor.  The  hus- 
band 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. 
Benjamin  v.  Campbell  et  al.,  2  N.  S.  D.,  320. 

9.  Liability  of  husband  for  support  of 

wife — Defendant  having  seduced  plaint  ii}''s  sister 
was  induced  to  marry  her  by  the  solicitations  of 
her  father,  who  professed  his  willingness  in  such 
case  to  support  her.  Immediately  after  the 
marriage  defendant  left  his  wife,  who,  without 
notice  to  her  husband,  went  to  live  with  her 
brother,  the  plaintiff,  with  the  intention  of  charg- 
ing her  husband  with  her  support. 
Held,  that  plaintiff  could  not  recover. 

Manniwj  v.  De  Wolf,  3  N.  S.  D.,  261. 

10.  Liability  of  husband  for  waste  com* 

mitted  before  marriage  by  tenant  in  dower — 
The  tenant  in  dower  of  wilderness  land  having, 
with  the  consent  of  C.  R.,  one  of  the  reversion- 
ers, sold  all  the  hardwood  timber  growing  upon 
the  land  to  W.  H.  H.,  and  allowed  the  same  to 
be  removed  by  the  purchaser,  contracted  a 
second  marriage  with  C  S.  After  the  death  of 
C.  R.,  plaintiffs,  as  reversioners,  without  joining 
the  heirs  of  C.  R.,  brought  an  action  of  waste 
against  the  tenant  in  dower,  C.  S.,  her  husband, 
and  W.  li.  H. ,  the  purchaser,  claiming  damages 
for  the  injury  to  the  land  by  the  removal  of  the 
timber.  The  Judge  who  tried  the  cause  having 
non-suited  the  plaintiffs,  and  a  rule  having  been 
taken  to  set  the  same  aside, 

Held,  (1)  that  all  the  persons  entitled  as 
reversioners  should  have  been  joined  as  co- 
plaintiffs,  but,  as  non-joinder  can  only  be  taken 
advantage  of  by  plea  in  abatement,  and  no  such 
plea  was  pleaded,  the  non-suit,  if  ordered  solely 
on  that  ground,  could  not  have  been  sustained. 

(2.)  That  in  such  case  the  plaintiffs  would 
be  entitled  to  recover,  not  the  full  value  of  the 
injury  done  to  the  land,  but  only  for  such  por- 
tions of  the  damage  as  was  incurred  by  them- 
selves alone. 

(3. )  That  the  tenant  in  dower  was  entitled  to 
cut  down  the  trees  on  the  land  for  fuel,  fencing, 
improvement  and  cultivation,  and  purposes 
connected  with  such  improvements,  but  not  to 
sell  the  wood  for  other  and  different  purposes. 


630 


HUSBAND  AND   WIFE. 


040 


to  the  perinaiicnt  injury  of  the  reversioners, 
anil  that  for  Hiich  injury  Aw  was  re.si)onsil)le  to 
the  reversioner. 

(4.)  ( Dnhitauh-. )  Tiuit  an  action  will  lie 
against  a  husWand  jointly  with  his  wife  for 
waste  oomniitteil  liy  the  latter  liefore  their 
intermarriage. 

(.').)  That  \V.  H.  H.,  the  jiurohaser,  acting 
as  he  dill,  untler  the  authnrity  of  the  tenant,  was 
not  chargealile  for  waste  liy  the  reversioners. 

Titm  et  a/,  v.  .>>'h/m  >(  uL,  '.i  N.  S.  1).,  4!»7. 

11.  Marriage,  proof  of-In  a  prosecution 

foi'  liiganiy,  where  there  is  a  foieign  marriage, 
the  foreign  law  nmst  lie  stridly  proved. 

'i  his,  however,  is  not  necessary,  where  the 
marriage  has  been  admitted  hy  the  defendant, 
and  there  are  corroborating  circumstances 
strengthening  the  admission.  The  testimony  of 
the  minister  who  married  parties  that  he  had  a 
marriage  license  which  was  brought  to  him  by 
one  of  the  parties  ;  that  he  duly  returned  the 
same  ;  that  all  the  fornm  of  law  were  observed 
as  rei|uireil  by  the  license,  and  that  the  marriage 
was  performed  according  to  the  rites  and  cere- 
monies of  his  clmrcli  is  sufKcient  ])roof  of  the 
license  having  been  issued  and  returned,  and  of 
the  marriage  having  been  duly  solenmixed. 

Wilkins,  J.,  donhtuiij. 

In   this  case,  the  first  alleged  marriage  was  ' 
contracted    in    Boston,    Ma.ssacliusetts,    and    no 
l)roof  whatever  was  given  of  the  marriage  law  of  I 
Massachusetts.     There  was  evidence,  however,  i 
by  a  witness  present  thereat,  of  a  marriage  cere- 
mony, and  of  Hubseijuent  co-habitation  as  man 
and  wife.     Another  witness  testitied  as  follows  ; 
"  I  spoke  to  the  defendant  at  Farrsboro,  a  wonuin  i 
clainiing  to  be  his  wife  was  looking  after  him. 
She  is  now  present.     I  asked  him  what  made  him 
leave  his  wife  in  the  vStates  and  marry  another 
woman  at  I'arrsboro.     He  said  he  did  not  think  ; 
his  wife  would  follow  him  from  the  States.      He 
thought  she  never  would  trouble  him,  but  as  long 
as  she  had  followed  him,  he  would  take  her  and 
support  her  as  hjng  as  they  lived.     We  were  old 
acquaintances,  and  I  asked  him  about  his  wife 
who  was  claiming  him.''  i 

HM,  that  there  was  no  necessity  for  proof  of 
the  marriage  law  of  Miissachusetts,  as  the 
nmriiage  was  sulficiently  proved  by  the  admis- 
sion of  the  defendant  and  the  corrolwirating 
circumstances. 

Qmen  v.  ffiiiry  I'.  Allan, 

1  X.  S.  1).,  5;  2  Old.,  373. 

12.  Married  Women's  Property    Act  of 

1884— Seizure  of  wife's  property  under  at- 
tachment against  the  husband— Averment  of 


performance  of  condition  precedent  Wages 
or  earnings --Pleading— The  plaintitl',  A.  .1.  15,, 
a  married  woman,  was  owner  of  certain  Hats  or 
water  lots  on  the  Anna])(>lis  Hiver,  at  (iranvillu, 
in  the  County  of  Annapolis,  upon  which  a  weir 
was  erected  for  the  taking  of  lish,  l)ct'ehdaut, 
as  .Sheriff  of  the  County  of  Annapolis,  levied 
upon  a  iiuantity  of  lish  taken  in  the  weir  unih.'r 
a  writ  of  attachment  issued  against  the  husband, 
•I.  1>.  as  an  absent  or  absconding  debtor.  He 
had  been  residing  for  several  years  in  the  United 
Statea,  having  left  the  I'rovince  for  the  United 
States  in  ISSl.  The  property  upon  which  tlie 
weir  was  erected  was  acijuired  by  A.  tj,  15,  in 
ISM'J  or  1H8.S,  and  the  attachment  was  issued  on 
the  'J.'lrd  Sejjtendier,  1 884,  the  Married  Women's 
Property  Act  being  then  in  force. 

Iltld,  /(f?*  McDonald,  C.  J.,  that  the  tish  taken 
by  the  plaintiff,  or  by  persons  employed  by  her, 
were  "earnings"  within  the  meaning  of  .")!h  H. 
S.,  e.  94,  s.  5-_'. 

Al'<o,  that  the  statement  of  claim  containing 
an  allegation  that  the  "said  properly  was 
aci|uired  by  the  said  A.  J.  15.,  during  covertuie 
otherwise  than  through  her  said  husband,  and 
l)elongings  to  her  under  and  by  virtue  of  the 
Married  Women's  Property  Act  of  I8S4,  in  her 
own  right,  and  to  which  she  claimetl  to  be  en- 
titled mider  said  Act,"  the  defendant  was  lK)und 
to  plead  non- performance  of  the  condition  pre- 
cedent ret|uiring  the  filing  in  the  Registry  of 
Deeds  of  a  consent  in  writing  by  the  husband,  if 
he  wished  to  take  advantage  of  it. 

Pir  McDonald,  J.— That  the  plaintiff's  state- 
ment of  claim  im]>lied  an  averment  of  the  per- 
formance of  the  condition  precedent  necessary  to 
maintain  her  ease,  and  that  the  defendant  must 
specify  distinctly  any  condition,  the  jHirformance 
of  which  he  intended  to  contest. 

Alxo,  that  tile  words  "wages  or  earnings" 
covered  the  result  of  the  plaintiff's  labor  and 
industry  as  well  as  something  acijuired  under  a 
contract  for  services. 

/'('»•  Ritchie  and  Weatherbc,  J  J. — That  !he 
plaintiff's  statement  of  claim  pointed  distinctly 
to  the  third  section  of  the  Act,  relating  to  the 
real  and  personal  properly  of  married  women, 
and  contained  no  reference  to  wages  or  earnings, 
or  anything  to  suggest  that  the  property  was 
claimed  under  section  .">"2,  which  protects  a  u;ar- 
ried  woman  s  seimrate  earnings  with  the  has- 
baiul's  con.sent. 

That,  if  the]daintiff  had  brought  herself  with- 
in section  .'»'2,  she  might  have  recovered,  though 
an  amendment  would  have  been  necessary. 

That,  there  is  no  distinction  between  lishing 
and  any  other  business  which  might  have  been 
carried  on  on  the  land,  the  profits  of  which  would 


641 


HUSBAND  AND   WIFE. 


G42 


not  1)0  exempt  from  Huixure  unless  the  uoiulitions 
i,f  .sectiim  it-  Imtl  been  coniiilied  with. 

liuhakti-  a  al.  v.  Morst,  20  N.  .S.  R., 

(8  II.  &(!.),  '1\'2; 
8C.  L.  T.,  SOS. 

13.  Married  Women's  Property  Act  — 

Liability  of  wife's  separate  estate  for  costs  - 
Till'  Miirrieil  Women's  Property  Act  of  1884, 
ili;i|i.  1-,  see.  It),  provides  that  any  judgment 
recovered  by  iv  liusband  and  wife,  in  any  suit 
arising  out  of  or  in  connection  with  the  wife's 
property,  siiiill  in\ire  to  her  sejKirate  benefit,  and 
tliat  any  judgment  obtained  against  them  (ex- 
tijit  for  her  tort)  shall  l)ind  her  separate  estate 
alone,  etc. 

In  a  suit  brought  by  a  married  woman  for 
injury  to  her  separate  property,  the  husband, 
who  was  insolvent  and  absent  from  the  Province, 
v.iiH  joined  as  a  party  plaintiff,  and  an  order 
was  obtained,  reiiuiring  the  wife  to  give  security 
for  the  defendant's  costs,  or  to  appoint  a  next 
fiieiid  who  should  justify. 

//(/(/,  that,  although  there  is  no  apjKal  from 
a  discretionary  order  of  a  Judge,  this  should  be 
contined  to  cases  that  are  purely  disci;etionary, 
where  the  discretion  has  l)een  exercised  on  a 
riglit  principle,  and  where  no  question  of  law 
is  involved ;  and,  the  order  in  the  present  case 
having  been  granted  under  a  mistake  as  to  the 
law  respecting  the  liability  of  the  wife's  separate 
estate  for  costs,  the  discretion  was  wrongly 
exercised. 

.l/vo,  that  the  order  was  bad,  as  creating  a 

liability  on  the  part  of  the  husband  to  pay  costs, 

exceeding  that  imposed  by  section  16  of  the  Act. 

Card  V.  Wttkx,  4  R.  &  (J.,  9,3,  dixtiinjuixhed. 

Bohaktr  et  al.  v.  Morse,  7  R.  &  O.,  165 ; 

7C.  L.  T.,247. 

14.  Money  depoaited  in  bank— 6.  E.  Bis- 
set,  by  his  will,  bequeathed  lo  his  daughter, 
Maria  Matheson,  £2000,  "for  herself  and  her 
children,  issue  of  her  nuirriage,  now  or  hereafter 
living,  to  be  exempt  from  any  debts  or  liabili- 
ties of  her  husband,  Donald  Mathesou,  should 
he  from  accident  or  misfortune  hereafter  become 
enikirrassed,  with  power  in  his  executors  to 
invest  the  same  at  her  desire  in  good  securities 
with  interest  for  her  and  her  children's  Iwnetit." 
subject  to  a  deduction  of  £870  due  the  testator 
by  Donald  Matheson.  The  plaintiff,  together 
with  Matheson,  testator's  widow,  and  another 
were  appointed  executors.  The  testator  died  in 
1S61,  there  being  at  that  time,  and  at  the  time 
of  the  making  of  the  will,  children  of  his 
daughter  living,  but  the  estate  was  not  settled 
until  September,  1871,  when  Matheson  deposited 

21 


in  the  People's  Bank  86000,  lieing  the  balance 
of  the  bequest  due  his  wife  after  deducting  the 
amount  due  by  him  to  the  estate,  with  in'.erest 
to  the  date  of  the  de|M>8it.  In  the  same  month 
he  maile  an  assignment  under  the  Insolvent  Act 
of  IStii).  During  the  ten  intervening  years  the 
amount  had  been  used  by  him  in  liis  business, 
and  for  his  family,  tliough  without  the  knowl- 
edge or  sanction  of  his  wife,  and  entries  were 
made  by  him  from  time  to  time  in  accounts 
reiulered  to  the  widow,  who  wit'  liimself  cliiefly 
managed  the  business  of  the  estate,  of  sums 
received  as  interest  on  his  wife's  legacy,  amount- 
ing in  all  to  the  whole  interest  that  would  bu 
due  thereon.  This  was  not  authorized  by  his 
wife,  but  she  ilid  not  object  to  it,  or  apply  for 
the  interest  herself.  Defendant  Rhindress,  as 
assignee,  having  claimed  the  fund  deposited  in 
the  People's  Bank, 

//'  III,  that  the  children  took  an  interest  under 
the  will,  but  that,  independently  of  tiieir  inter- 
est, as  tliere  was  no  evidence  that  Mrs.  Mathe- 
son had  sani.'tioned  the  use  of  the  money  by  her 
husband,  jdaintitr,  as  trustee  for  her  and  her 
children,  was  entitled  to  an  amount  equal  to  the 
Ijfilance  of  the  legacy,  after  deducting  the  debt 
due  by  Matheson  ;  but  that  the  assignee  was 
entitled  to  the  amount  deposited  for  interest 
thereon,  as  the  Court  must  presume  the  ac(iui- 
escence  of  the  wife  in  the  husband's  receipt  of 
the  interest  from  year  to  year,  in  the  absence  of 
very  clear  evidence  to  the  contrary. 
llunttr  V,  Tht  Peoples  Bank  of  Halifax  it  al., 

R.  E.  D.,91. 

15.  Possession  of  Widow— Tlie  adverse 

'  possession  of  a  widow,  cextui  que  tnutt,  as  against 
the  trustees,  will  inure  for  the  benefit  of  her 
I  children,    lieing  also   centuis    que\tnuitenl,  and 
I  cannot  be  set  up  against  their  title. 
1  Archibald  v.  Blois,  James,  307. 

16.  Trust  Funds— Property  purchased  by 

husband  ostensibly  for  wife  out  of  funds- 
Liability  of,  to  be  taken  under  execution 
against  husband — Trust  funds  settled  on  a  mar- 
ried woman  for  the  benefit  of  herself  and  chil- 
dren were  expended  by  her  and  her  husband 
contrary  to  the  provisions  of  the  deed  of  settle- 
ment. The  husband  afterwards  repaid  to  the 
trustee,  out  of  his  own  earnings,  the  amount  so 
expended,  but  while  repaying  it  he  said  to  the 
trustee  that  he  wished  to  make  his  wife  a  present 
of  a  horse  and  waggon.  The  amount  so  repaid 
was  drawn  by  the  husband  a  day  or  two  after- 
wards out  of  the  bank,  on  a  cheque  given  him  by 
the  trustee,  and  a  horse  and  waggon  bought  with 
part  of  the  money.    The  articles  were  used  by 


643 


HUSBAND  AND  WIFE. 


0'4 


tho  wife,  and  ulao  by  tlio  liu.sliaiul,  who  wan  u 
phyHiciiin,  in  IiIh  piiictice.  One  vitnt's.-)  wiid 
that  tho  hoi'Hu  aiiit  wag^'oii  wlmu  phkoutl  in  liiti 
cliai'j^u  by  tlie  wife,  witiiinHtniotionH  not  to  give 
thi'in  to  lier  hii.shanil  v.itliout  lier  onleis,  whicli 
inKtriictionx  witnosH  suid  lie  ()l)eyt'd. 

Held,  that  the  horse  and  waggon  were  not 

trust  property,  hut  the  property  of  tlic  liiistNvnd, 

and  coidd  i>e  taken  on  an  exeeution  against  him. 

(ii//iiii  V.  Sairyir,  1  Old.,  !)li4. 

17.  Warrant  of  attorney  made  by  husband 

and  wife —Judgment  on — Wlien  a  woman  en- 
tit  luil  to  real  estate  joined  with  her  hushand  in 
oxeeiiting  a  warrant  of  attorney  on  which  a 
judgment  was  entered  and  rei;ortled,  in  onler  to 
bind  siicii  real  estate,  tiie  Court  of  I'rohate  is 
not    justified   in    treating   tiie    judgment   as   a 

nullity. 

In  re  Enlate  of  Xelxou,  2  Thorn.,  I. 

18.  Widow  consenting  to  investment  of 

funds  to  which  she  and  her  children  are  en- 
titled— A  testator,  l)y  ids  will,  devi.sed  and 
beiiueathed  his  real  and  personal  estate  to  his 
wife  and  another,  as  executrix  and  executor,  in 
trust  to  .sell  tiie  same  and  invest  the  proceeds  in 
the  best  securities  they  could  obtain,  and,  upon 
the  coming  of  age  of  the  testator's  children,  to 
divide  the  money  among  the  children  and  the 
widow,  in  .specified  proportions.  The  executor, 
witii  the  con.seiit  ami  awjuiescence  of  the  widow 
loaned  a  part  of  the  trust  funds  to  nuirchants 
engaged  in  ship-building,  who  afterwards  be- 
came insolvent  and  unable  to  reiwy  tho  money. 
/ii/il,  that  the  trustees  were  not  justified  in 
investing  the  money  on  personal  security,  and 
must  make  good  the  loss  to  the  children  ;  but 
that  the  widow  could  not  make  her  co-trustee 
liable  to  her  for  the  loss  she  might  sustain, 
having  acquiesced  in  the  investment. 

Perky  et  al.  v.  Snoio  el  al.,  R.  E.  U.,  373. 

19.  Wife's  equity  to  a  settlement— J.  C. 

died  about  the  year  1862,  possessed  of  a  fund 
amounting  to  £8,638  28.  4d.,  which  he  devised 
to  trustees  upon  certain  trusts  in  favor  of  his 
daughter  and  others,  and  upon  failure  of  such 
devises,  then  to  his  nieces  or  their  lawful  issue. 
The  original  devises  in  the  will  having  failed, 
a  rule  was  passed  in  the  Equity  Court  on  a  suit 
instituted  by  the  trustees  by  which  it  was  ordered 
that  a  portion  of  the  fund  should  be  distributed 
and  paid  by  the  trustees  in  certain  proportions 
among  the  next  of  kin  of  the  said  J.  C. 

M.  W.  iMiing  entitled  as  one  of  the  next  of  kin, 
with  J.  S.  W.  her  husband,  executed  a  power  of 
attorney  to  S.  empowering  him  to  receive  the 
money  coming  to  her  by  virtue  of  the  said  will. 


On  the  3rd  April  18tt8,  S.  received  under  .siiid 
power  the  suin  of  .'?l,}>27,  which  on  the  same  day 
was  attached  in  his  liunds  iiy  K.   IS.  on  pro(.'t'.s.s 

,  issued  against  J .  >S,  \V. ,  the  husband,  a.t  an  abiteut 

!  or  absconiling  debtor.  On  the  23r<l  Kcliruary, 
previously,  J.  S.  \\'.  had  been  acljudicatcil  a 
bankrupt  in  Knghtnd,  and  a  creditors'  assiguev 
was  apjiointed.  Notice  of  this  was  received  i)y 
.S.    on   May   21st,    l8(iH,   but  no   notice  of  the 

'  bankruptcy  had  Ijcen  received  by  K.  1!.  at  tiie 
time  of  the  issue  of  the  attachment  process.     .S. 

!  was  notitied  by  M.  W.  on  July  2t)th,  18()S,  tiiut 

'  she  claimed  tlie  fund  in  (piestion  in  her  own 
right,  and  she  followed  this  u|)  by  a  suit   in 

I  Equity. 

Hi/il,  on  a  case  jirepared,  that  tlie  creditors' 
assignee  was  entitled  to  tlie  fund  as  against  K. 
1!.  tile  attaching  creditor. 

Hi  Id,  also,  that  the  l>aukruptcy  of  J.  .S.  \V. 
determined  the  power  of  .S.  to  receive  the  fund, 
that  it  had  not  been  reduced  into  jMjssession,  ami 
that  it,  therefore,  nuul  be  treated  as  if  still 
remaining  in  the  hands  of  the  trustees. 

Uild,  al-^o,  that  tiie  creditors'  a.ssignee  wm 
not  entitled  to  the  fund  without  making  pro- 
vision for  the  wife,  and  that  the  latter,  iieiiig 
entitled  to  the  fund  as  a  rhow  in  arlion,  wiis 
justified  in  coming  int(.  eipiity  for  her  protection. 
Hi  Id,  also,  that  as  J.  .S.  \V.,  the  husliaml,  wua 
a  Ixinkrupt,  and  that,  the  sum  in  controversy  not 

!  being  large,  and  M.  W .,  the  wife,  without  any 

'  i)rovision  made  before  or  at  the  time  of  her  iniir- 
riage,  the  taxable  costs  being  first  paiil,  tlie  l)al- 

I  uncc  of  the  fund  should  l>c  \m,\i\  or  secured  to 

:  her  for  her  own  benefit. 

I  Jiopi'f  V.  Shannon,  2  N.  S.  1).,  14(j. 

I 

I    20.   Wife's  money  used  by  husband  with 

'  her  knowledge — I'laintiflT,  the  widow  of  C'liiis. 
S.  Silver,  was  entitled  to  certain  projKjrty  pluccil 
j  in  trust,  among  other  things,  for  the  payment  of 
1  rents,  etc.,  free  from  the  control  of  her  IiusImuiiI, 
and  not  subject  to  his  debts.     She  directed  her 
;  trustees  to  pay  over  to  her  husband  the  income 
j  for  certain  years.      Her  husband   was  at  that 
;  time  in  partnership  with  Wm.  C.  Silver,  carry- 
'  ing  on  a  business  in  Halifax  which  was  conducted 
j  by  Chiis.  S.  Silver  alone,  Wm.  C.  Silver  having 
withdrawn   from   the    management  of  it,  and 
taking  no  oversight  of  its  affairs.     When  plain- 
tiff directed  the  money  to  be  paid  to  her  husband 
she  knew  he  was  in  embarrassed  circiunstances, 
and  he  had  then  and  long  l)efore  exhausted  his 
capital  and  become   indebted  to   the  firm,  ids 
family  l)eing  meanwhile  supiwrted  from  the  funds 
of  the  firm.     In   those  circumstances  he  had 
ordered  the  money  paid  over  to  him  by  his  wife's 
trustees  to  lie  paid  to  creditors  of  the  firm,  aiui 
opened  an  account  on  the  firm  liooks,  charging 


64.") 


INFANTS. 


G46 


till-  lirni  iwnl  crediting  Mrs.  Silver  with  tlie 
iMoiiey  80  paid.  L'hiw.  S.  Silver  died  iiiHolvcnt 
in  IM'O,  wliL'ii  Win.  (',  Silver  ttr«t  liccanie  iiwure 
(if  tlu!  I'ourse  pursued  l)y  iii.s  co-jmrtner.  I'lain- 
tiff  in  this  suit  claimed  from  Win.  ('.  .'Silver,  as 
."urviviiig  partner,  the  repayment  <>f  the  money 
Hci  received  liy  ilie  linn  and  credited  to  iier. 

Hi  III,  tliat  ('has.  .S,  .Silver  was  not  justified  in 
crtMliliiig  such  moneys  to  plaintiff  without  her 
cciiicurrence  or  that  of  Win.  C.  Silver,  and  that 
llic  liitter  was  not  liable. 

Sih-fr  V.  SUrcr,  R.  K.  1).,  1«9. 


IDENTITT. 
Part)  served  same  name  as  defendant— 

IftliejMirty  wiio  lias  been  served  with  process 
iiiid  appeared  to  defeml  the  action  bears  the 
si.nic  iiiuue  as  the  jwrty  proved  to  be  liable,  the 
plaintiflT  is  entitled  to  a  verdict  unless  the  jwrty 
80  served,  &c.,  shows  tluit  he  is  not  the  projMir 
defendant. 

Thayer  v.  Vatire,  2T\wm.,  269. 


IMPORTATION. 
What  constitutes  Importation  under  tbc 

Revenue  Laws — It  has  been  decided  over  and 
iiver  again,  that  in  order  to  constitute  an  impor- 
iatidii,  it  is  not  necessary  that  vessela  should 
come  to  a  wharf. 

The  mere  fact  of  coming  into  port  with  goods 
on  Umrd  is  }>riina  fark  evidence  of  an  importa- 
tion, and  is,  consequently,  clearly  a  violation  of 
sec.  9  of  .11  Vic,  chap.  0,  where  tiie  port  is  not 
«  {wrt  or  place  of  entry,  and  the  goods  are 
ilutiahle. 

A  vessel,  while  proceeding  from  the  island  of 
St.  Pierre,  which  is  a  colony  of  France,  to  New- 
fimndland,  put  in  at  Aspy  Bay,  in  the  island  of 
CiilH;  Hreton,  the  said  Aspy  Hay  not  Iwing  a 
(Hirt  of  entry,  without  necessity  from  stre.ss  of 
weather,  and  having  dutiable  goods  on  board, 
some  of  which  goods,  the  evidence  went  to 
show,  had  l)een  there  landed,  and  no  ihity  at 
any  time  paid  thereon. 

H'id,  that,  under  sec.  9  of  31  Vic.,  cap.  6, 
tile  captain  of  the  vessel  had  incurred  the  full 
penalty  of  $800,  iinjwsed  by  that  section. 

The  Minnie,  Y.  A.  D.,  65. 


INDIAN  COMMISSIONER. 

Action  against  Indian  Commissioner  for 

arrest  of  a   person    treapasaing   on    Indian 
Reserve  -  Verdict  for  plaintiflF  set   aside  — 


Plaintiff  having  continued  to  trespass  upon  a 
portion  of  the  Indian  Keserve  lands  at  Why- 
oocomagh,  Inverne.sH,  by  cutting  hay,  etc.,  after 
notice  to  cease  doing  so,  one  of  the  defendants 
as  Indian  Agent  ami  Justice  of  the  Peace,  issued 
a  warrant  under  which  plaintiff  was  arrested  by 
the  .SheriH',  assisted  by  another  defendant,  who 
was  called  upon  by  the  Sheriff  for  that  purjjose, 
and  after  trial  aixl  conviction,  was  committed  to 
jail  in  default  of  the  tine  imposed,  under  chap, 
ter  'JS  of  the  Dominion  Acts  of  1880,  sec.  '27. 
I'laintiff  thereupon  brought  an  action  cluiming 
damages  for  the  arrest,  and  the  jury  having 
found  a  verdict  in  his  favor  against  the  Judge's 
charge,  the  verdict  was  set  aside. 

McLean  v.  J/«7<firtc  ef  aJ.,  6  R.  &  (J.,  SM  ; 

6C.  L.  T.,  453. 


INDICTMENT- 
.S^ee  CRIMINAL  LAW. 


INDIGENT  DERTOR- 
See  APPEAL,  IV- 
INSOLYENCT. 


INDORSEMENT- 

1.    or  Rills  and  Notes- 

See  RILLS  OF  EXCHANGE  AND  PROMISSORY 
NOTES. 


2.    or  Rills  or  Lading- 


See  SHIPPING. 


INEVITARLE  ACCIDENT- 
See  SHIPPING. 


INFANTS. 
1.   Custody  or— When  Court  will  interfere 

with  parental  right  to— Father  and  mother 
separated,  the  mother  taking  their  infant  of  the 
age  of  thirteen  months.  She  kept  the  infant 
until  it  was  twenty  months  old,  when  the  father, 
seeing  it  on  the  street,  seized  it  and  retained  its 


647 


INJUNCTION. 


€48 


cuBtotly.  The  mother  obtained  a  r«/c  nini  for  a 
writ  of  hahe.ns  eorpxin.  Objection  was  taken 
that  a  court  of  common  law  and  common  law 
judgeti  had  no  jurisdiction  in  such  a  ciwe. 

}lilil,  that  chap.  1"24,  sees.  1  to  4  inclusive, 
of  Mrd  R.  S.,  invests  the  .Supreme  Court  with 
all  chancery  jMiwers,  and  that  under  3rd  K.  .S., 
chap.  ir>3,  "Of  the  Liberty  of  the  Subject,"  the 
Supreme  Court  and  its  Judges  have  ample  juris- 
diction to  grant  the  writ  of  halnas  cor/nuH  asked 
for.  The  Court  will  interfere  with  the  paternal 
rights  only  in  cases  of  very  great  misconduct. 
None  established  in  this  case  and  writ  refused. 
In  rt  James  William  lilark: 

At  ChamhrrH,  unrejtarttd. 

2.  Infant  trader  purchases  goods  and 

appropriates  them  on  account  of  his  board- 
Such  appropriation  does  not  render  them 
necessaries  —  An  infant  trader  bought  goods 
from  plaintiff,  part  of  which  were  found  by  the 
Judge  to  have  been  given  by  him  to  his  board- 
ing-house keeper  on  account  of  his  board. 

Htid,  reversing  the  judgment  of  Johnston,  J., 
that  the  fact  of  the  go(jds  Iwing  so  applied  did 
not  rciuler  them  necessaries  so  as  to  enable  the 
plaintitr  to  recover,  and  that  the  judgment  must 
be  entered  for  defendant,  with  costs. 

Jenkim  v.  Way,  2  R.  &  (J.,  394  ; 
2C.  L.  T.,  108. 

3.  Real  estate  of  inftints-  Power  of  Court 

over — EflFect  on  such  power  of  appointment  of 
guardian— The  power  of  the  Equity  Court  over 
the  real  estate  of  infanta,  in  this  Province,  is 
more  extensive  than  any  such  power  which  has 
ever  been  exercised  in  England. 

If  it  be  shown  that  by  the  disposal  of  the 
property  the  interest  of  the  infant  will  be  sub- 
stantially promoted  on  account  of  any  portion 
of  the  property  being  exposed  to  waste  or  delap- 
idation,  or  being  wholly  unproductive,  or  for 
any  other  reasonable  cause,  the  Court  has  a  dis- 
cretionary power  to  order  a  sale. 

Where  the  whole  property  yielded  an  income 
of  only  8100,  and  the  infant's  undivided  share, 
upon  a  sale,  would  produce  four  or  five  times  as 
much  as  their  share  of  the  rental, 

I/eld,  that  the  discretionary  power  of  the 
Court  was  wisely  exercised. 

Held,  aluo,  that  the  discretionary  power  of  the 
Court  to  order  a  sale  was  not  determined  by 
the  appointment  of  a  guardian,  and  that  where 
the  guardian,  who  was  the  mother  of  the  infants^ 
was  opposed  to  the  sale,  and  neglected  or  refused 
to  find  security  as  required  by  3rd  R.  S.,  cap. 
124,  sec.  51,  the  Court  had  power  to  remove 
Buoh  guardian,  and  substitute  in  her  stead  a 


suitable  person  us  next  friend  to  tile  the  nt'(X'g. 
sary  bond  and  i-tFcct  the  salt'. 

In  rt  E*lttlt  of  Lanlor,  '1  N,  S.  1).,  153. 


INJUNCTION. 
1.    Adequate  remedy  at  law  -Plaintiff  wan 

assignee  of  certain  chattel  mortgages  given  liy 
the  lirms  of  1$.  Ik,  15.  and  H.  k.  Co.  .)n  goods  con. 
taincd  in  the  premises  occupied  by  tliuni,  iuid 
had  entered  and  taken  possession  of  the  gdmU 
with  the  assent  of  tine  IJlakeley  who  represent  id 
l«)th  tirms.  Blakeley  subsequently  executed 
an  assignment  for  the  general  benefit  of  credi- 
tors and  gave  a  confession  of  judgment  to 
Jenkins,  one  of  the  defendants,  who  entered  up 
judgment  and  issued  execution,  under  wiiich  tiie 
Sheritr  forcibly  entered  upon  the  premises  and 
di»p<j8sesse(l  plaintitf.  I'laintitF  thereupon  ap- 
plied for  and  ol)tained  a  writ  of  injuuction  en- 
joining defendants  from  selling  the  goods  or 
removing  the  same,  or  attempting  to  enforce  the 
execution,  and  enjoining  Jenkins  from  tiikiiig 
possession  under  the  assignment  to  him.  I'lain- 
tiff  alleged  in  his  bill  that  though  he  hail  liaJ 
possession  of  the  goods,  he  had  made  no  inven 
tory,  and  did  not  know  the  (juantity  of  goods  on 
the  premises  ;  that  the  members  of  the  tiini  ol 
B.  &  Co.  had  no  neans  outside  of  the  goodi*  cov- 
ered by  plaintiff's  mortgages,  and  that,  unless 
plaintiff's  claims  were  realized  out  of  the  goods, 
he  would  suffer  irreparable  injury ;  that  there 
was  no  adequate  remedy  at  law  ;  that  the  goods 
covercii  by  the  mortgages  were  insufficient  to 
satisfy  the  amount  they  were  given  to  secure ; 
that  the  mortgages  were  given  to  secure  plaiutilf 
for  accommodation  and  advances  represented  by 
negotiable  paper,  which  was  daily  maturing; 
and  that  unless  plaintiff  was  permitted  to  sell 
I  the  goods  to  meet  said  paper,  he  would  be 
i  obliged  to  sacrifice  his  private  property,  and 
I  that  the  assignment  and  judgment  to  Jenkins 
I  were  given  fraudulently  and  for  the  purpose  of 
injuring  plaintiff. 

On  appeal  from  the  decision  of  the  Judge  in 
Equity  discharging  a  rule  niti  to  dissolve  the 
injunction. 

Held,  that  the  entry  by  the  defendants  was 
an  act  of  tresposs  for  which  plaintiff  had  a 
complete  remedy  at  law,  and  that  plaintiff's  re- 
maining allegations  were  not  sufficient  to  bring 
the  action  within  the  class  of  cases  where  a 
Court  of  Equity  will  interfere  by  injunction,  not- 
withstanding the  existence  of  a  remedy  at  law. 
Creighton  v.  Jenkins  el  a/.,  5  R.  &  G.,  352. 


649 


INJCNCTIUN. 


G.)0 


•2,    AiMK'iil  rroiii  rtTiiMil  to  rcslraln  a  sMe 

(liHiiii.i.st'd  wlit'ii  ailvertirted  diiy  of  Hule  paswed 
/,'. .  <(.//i('/'V'('((  -  I'liiiiilillM  lia.l  (ilnaimil  a  lis- 
ti  ciiiiiiiL.' i'kI'I  ti'oiii  the  fill  iiicr  •ludj.'c  in  Ki|iiity 
llinlir  a  juil;.'iin'nl  which  wan  li'Viisrd  //(  luiiini 
,ill>i  whii  h  iilaiiil  ill's  ohtaiiicd  frmii  I  hi'  |)ivsfnl 
.liiil.'i'  ill  Kipiily  li'avi'  to  aiiii'iid  tiicir  hill,  ami 
iiiiiihi'd  f>>i'  II  M'l'iiiiil  iiijiiiK'tiiiii,  whii'h  was 
iitiiMil  "II  'III'  ;;r<'iiiid  that  thi'  cast'  had  imt 
hiTii  valii'd  liy  till'  iiiiii'iidliiflit,  and  the  .llld^,'c 
ill  Ivpiity  was  lnuiiid  liy  thir  jndj,'iiii'iit  of  tiii' 
Cniiit  ill  liniii-n.     'I'hi,'  a|i|ii'al   finni  tiiis  refusal 

w,is  dismissed, 

/•')■  Mi|)niiahl  and  'riiiiin|»s(iii,  .1.1.  -  'I'liat 
tlini'  was  nil  (jiiesticm  t<i  deeide,  as  the  injiine- 
tiiin  was  to  ivsti'aiii  a  sale  advertisiMl  fur  a  day 
Imiy  siiiLi'  jiassed. 

/'. /•  Wi-atherlie,  .1. — That  the  matter  was  /i - 
iiiljiiiliiiiln. 

■hiliu'g,  .1.,  iidherecl  to  his  jnd^'ineiit  as  .Judj,'e 
ill  Ki|iiity. 

.h.hii^ .1 11/ .  V.  Hiiihtiiir  ,1  ii/.,  ."i  H.  .t  (;.,  i;k 
3.   Contract -Kcstraining  breach  or--Ue- 

feiidantK assigned  to  plaiiititrs  the  exclusive  right 
til  nianiifaettire  iiiid  sell,  within  the  1)(iininii>n  of 
Canada,  the  Island  of  Newfoundland,  and  the 
W.  I.  Islands,  a  preparation  designed  for  the 
treatment  and  cureof  pulnionary  diseases,  known 
as  "  I'littner's  Kinidsion  of  Cod  Liver  Oil."  l)e- 
fiiiihints  reserved  the  right  to  manufaituiu  and 
sell  the  emulsion  in  the  United  States,  hut  agreed, 
us  part  of  the  eonsideratioii  for  the  jiurehase  liy 
lilaiiititfs,  that  they  would  not  sell  the  einulsion 
111  any  other  einnlsiou  in  the  preparation  of 
whiiii  rod  liver  oil  was  used,  or  wliieii  was 
isseiitially  or  snhstantially  tlie  same  as  that 
assigned  to  plaintitl's,  witliin  any  jKirt  of  the 
ileseiilied  limits.  Siihseiiueiitly,  the  defendants 
niiiimenieil  the  inanufaetiire  and  sale,  in  Canada, 
'it  an  emulsion  which,  though  sold  under  the 
iiaiiie  of  "  IJiidd's  Kinidsion,''  was  essentially  ami 
suhstaiilially  the  same  as  that  assigned  to  plaili- 
titls.  and  ill  the  preparation  of  whieii  plaintitl's' 
eiinijsiiin,  tiiougli  varied  from  so  far  as  to  create 
ii  .Hiciitilic,  Imt,  for  trade  purposes,  an  imma- 
terial (lifTereiice,  was  largely  imitated.  Wliile 
tile  cojiyiiig  (if  any  of  the  particulars  specified  in 
tlie  trade  mark  was  avoided,  appearances,  name, 
and  other  iiiilieia  were  adopted  in  such  a  way  as 
t'l  have  the  effect  of  eau.«ing  defendants'  eiiiul- 
^iiiii  to  lie  hougl.t  as  that  sohl  to  plaintilTs,  and 
til  lead  the  pulilic  to  helieve  that  defendant.s' 
iiinilsioii,  if  not  the  tea!  and  only  genuine  , 
"  I'uttner's  Kniulsion,"  was  essentially  and  sub- 
stantially the  same. 

•\  lierpetual  injunction  having  is.-iued  to  re- 
^liaiii  the  nianufaetuie  and  .^ale  of  "  Hudd's 
KiiiiiLsiiin, 


//./'/,  (.11  .ippcal,  that  dilelidalils  wei  e  uiiilly 
of  a  clear  \  inlation  of  their  aj^leenielil .  ainl  I  hat 
the  injlllit'tioii  must  he  sustained, 

,l/«o,  a  large  iiiimher  of  hiidiiig  physiri.iiis 
having  testilied  that  they  were  in  the  h.ihil  of 
prescrihing cod  liver  oil  eiiiiilsion  for  the  use  of 
their  patients,  and  that  it  was  a  highly  iisi'ful 
article,  that  the  preiiaratioii  loiild  not  he  classed 
with  iiostriinis  and  i|iiaik  remedies,  uhicii  the 
Conn  refused  to  iiiterl'en'  to  prutcct, 

.|/«i,  that  the  It  sti  ictinli  iniilaimd  in  the 
agleiliiellt  lietweeli  the  parties  in  view  of  the 
siiliject  matter  of  the  contrail,  W.is  imt  uiiieasuii- 
alileoi  void,  as  in  restraint  of  trade, 

lil<ll  •!  III.  V,    I'lifliii  I- <l  III.,  7  It.  \  <•,,    lil,"i, 

I.    i'roM'ii  cannot  bv  sued  or  enjoined  - 

Remedy  by  petition  of  right  I'laintiMs  sonL'ht 
toelijoili  the  defendants  froiii  selling  the  niadlied, 
right  of  way,  rails,  slee]iers,  rights,  privileges 
and  franchises  connected  with  a  line  of  railway 
lietweeii  Oxford  and  New  (ilasgow,  etc,,  and  to 
set  aside  a  cniiveyaiice  in  trust  made  tor  that 
purpose. 

It  ap|ieaiiiig  that  the  Crown  was  the  princi- 
pal party  interested  in  the  conveyance  sought 
to  be  declared  void,  and  that  the  in jiiiirtion  was 
virtually  against  the  Ciuwi:, 

Hi  III,  that  objections  taken  to  the  jurisdiction 
of  the  Court  on  the  grounds  that  the  Crown 
was  not  liable  to  be  sued,  or  restrained  by 
iiijunction,  and  that  plaintill's'  remedy  was  by 
pi'tition  of  right,  and  not  otherwise,  must  pre- 
vail. 

7'/ii   Moiilridl  null  Kiirojiiaii  Slivrf  Lim 

liaitiiuy  Co.  1 1  III.  v.  S/iirar/  ii  iil., 
•-flN.  ,S.  W.,  (S  H.  >V  (i.)  1 1,-1, 


5.  Discovery  —  Bill  for  -  KestraininK  de- 
fendant from  pleading— The  plaintitl's  si  night 
in  tlii.i  suit  discovery  of  facts  iiecesssary  to 
enable  them  to  plead  to  an  action  at  law 
brought  against  them  by  the  defendant,  and  the 
writ  contained  a  jirayer  of  relief  in  resjiect  of 
the  matters  of  which  discovery  was  sought.  On 
taking  out  the  writ,  plaintiffs  obtained  an  order 
restraining  defendant  from  further  action  in  the 
common  law  suit,  and  defendant,  having  tiled 
his  answer,  sought  to  have  the  rostrainiiig  order 
discharged. 

Held,  that  the  plaintiffs  having  sought  relief 
in  this  Court,  had  elected  this  tribunal,  and 
could  not  at  the  same  time  nuike  the  matters 
referred  to  in  their  writ  the  subject  of  pleas  to 
the  action  at  law;  that  the  evidence  sought  for 
was,  therefore,  not  pertinent  to  the  defence  in 
the  action  at  law,  and  that  the  restraining  order 
having  been  granted  solely  on  the  ground  that 


O.'.l  INJUNXTION.  (;-2 

clijxDvciy  «,is  luicswaiy,  iiiiisi  lif  ilisc|i;ii-;.'iil  iiltlicniuli  il  was  iillt'gu.l  in  the  lUi^wir,  tlic  cv  iil 
incipi'il  Im'  of  llii'  Milliiifiiry  iif  tlic  di  t'cndiiiit's  i-ini'  iliil  not  jilslify  tin-  ciiiuliiiiiiu  tliiit  |ilaiiititl 
iili.^Wi'l  ;    lli.'tt  till'  |ili. sent  .suit,  iiltliiill'^li  it  t'lilllil     h.'ld    uliaiiiliiiH'cl     liJH    light     lllnlil'    tllc    \vi\^f    III 

lint  lir  iri'iilt'd  iis  II  suit  fill' ilisi'dveiy,  Ktill  con-  c'liiiteiiipliitcil  lining  mi, 

liiimii  us  11  xiiit   fur   nMvf,   Imt   flmt   iilaiiitiffs        //«/</,  tliiit  plaiiititr  was  ciniiUil  to  liavf  mi 

liiiglil  ilisi'iiiitiiiiif  the  suit   ami  jdvail  tlu'  fiu'ts  in jiiiujtiim  to  if.stiaiii  dcfi'iidaiit  fimii  iniMci'diiiu 

set  iiiit  III   llic  writ  as  a  drtiiirr  lu  till'  action  at  with  tlic  ciiH'tiun  of  liic  Iniilding,  as  llic  icnud> 

ln«.  at  (.oiniiiiin  law  was   nul  full  and  adi'ijuatc,  aial 

Til'  Cii/ii   flr'tiiii  Cii.  (  l.'niiii'd )  \ .  <i:,l,i>nii,  it  Wdiilil  lie  iiii|iim>iii>lu  fiic  a  jiify  ti)  fstilnatf  thr 

it.  M.  I).,  ".'4(1.  diiniagts  with  ai'fui'ai'y. 

Mu.so,,  ,1  „l,  V.  Sloihl  it  III.,   \\.  v..  1).,  47s. 

II.    Ilissolvi-d   nlii'ir  all   alU'KatloiiK  on 

uhi.li    t;rant.a    iitKativid     by    defendant-  j>,     InJlllHllon     Afflrtavlts,  m|UlslH'S   Of 

I'laiiiiiir  liavin-  iililaiiii'd  an  iiijiin.tiiiii  til  r.M  Pnjetii-e       Wheiu    plaintillM    had    lin.nght    an 

I  lain  111,,  sal.'  i.f  a  mining  pn.iieity  in  wiiiLh  lu.'  ,j,,,j,,„  „g,ii„^,  dofi'iidants  for  an  all.'gnl  tifsi.a.'..s 

«a>    iiil.'i-.'.st.'d,    iIr'    defendants    inadf    aiiswei  „„  ,,„.(,,   ,„|,„,^  ,j,„,  ;,  n,,,,,,,,,.,,,!  ,i„i,   t|,i,  „,im' 

under    oath    negativing    all    the    allegations    on  „,,^  „i,i,j„   ,|„,  ij,,,,,,,,  ,,,■  ,,   i,,,   „..,si.,|,.d   to  tli,. 

«hiili  the  idaintitr'selaiin  to  relief  «as  founded.  ,,;,,, y.  niidir  whom  |,!aintili;  .hdiiied.  on  a  survey 

//./'/,  that  eredil  must  lie  given  to  the  answer  ,i,i,.„ded    l.y    all    tlie    parlies    tiien    interested; 

and  the  iujuni'tio.i  must  lie  diss.dved,  fraud  not  ,|,,„   ,,„.  ]„;   ,,,^,i  ,„,,,„  ,„.,.„, ,ii,,i  f,,,,,,  ,i,,it  tinu. 

having  liii'ii    shown,  under    tiie    iirinrjpl..    laid  ,,^.  ,,„.    ,,i,ii,„i)f^  ,i,„i  ti,,,^^   ,„„ie,,.  „lioni  they 

down  ill  r/,.,/,////  V.    //V,//..  S  Ves..  ;{li7.  ciaiiiied,    liy sent    of    the    proprietor    of    the 

ll'imi'tnii  K.  Xnrili„i,,-2\.  S.  \^..MVX  ,„ij„i|,ii,g   'h,l,     iind.r    wiioin     llie    defeiidiuits 

elaiined  ;  and  that  no  interruption  of  that  oeeii- 

t.     Kalslly    of    statements    in    applleatlon  patimi  had  heen  attempted  for  a  jieriod  of  nine 

for  -  Adeiiuatf  legal   remedy     Praying  Hpeci-  years,  oi- until  defendants  interposed, 

ally  for  .an  injuiietion  —  I'laintiir,  in  his   writ,  The  Conrl   refused  to  dissolve  an  injunetiini 

soiiglil  to  lri\e  a  judgiiieiit,  entered  against  him  whieh   had   lieen  granted  on  i x  /mr/i  allidavil-, 

ill  t  he  (  oinity  ( 'ouit  ii|ioii  a  eonfessioii  signed  liy  on  liehalf  of  llie  plaintitl's,   lo   restrain  the  de- 

him  x\  hell  iiiider  the  aLC  of  twenty-one,  declared  feiidaiits  fioiii   working  or  interfering  with   ilie 

null   and  \<'id,  ami   iiiovcd   for  an   injunction  to  mine. 

restrain  a  sale  under  execiilion,  upon  aflidavits  The   fact   of  the  title  liciiig   in  dispute,  oi   nf 

verify  iiig  tlie  statement  contained   in  the  writ,  the  opposite  paity  acting  under  a  claim  of  riglil, 

that    llic    warrint    of   confession    on    which  the  will  not    prevent    the  granting  of  an  iiijunctiini 

judgmeiil  was  entered   had  heen   ])rocuri'd  from  wiiere  tiie  \alue  of  the  inheritance  is  in  jcopaiily 

him   liy  di'i'eit   and   imposition.      Xo  foundalioii  or  irreparalile  mischief  is  thre.ilelied. 

wasslioui!  for  this  statiUMil.  (  hi  an  application   for  an   in  jnnetion '.<■  /''(('•, 

Jl'lil,   that     the    defendant    could    not    lie  re-  all  the  fads  should   he  fully  disclosed  !  lillt   the 

strained,  tirst,  hecause  of  ilic  falsity  of  the  ma-  injunction  will  not  lie  dissolveil  on  the  grmui'l 

lerial   si  itciiicnts  on  wliicli  tlie  injunction  was  of  the  suppression    of    facts,   if   the    faits   snp- 

iiioxcd    toi  ;     secondly,    liecaiise     there    was    an  pressed  would   not   have  altered   the  decision  of 

adei|iiale    Kniidy    at    law    liy  setting  the  jinlg-  the  .ludge. 

ineiil  aside,  and,  thirdly,  liecause  the  injunction  l'rinii|)les  on  which  injunctions  are  giantcil, 

was  not    -pcciliially   Jiiayed   for,   and  could  not  and    jiractice    as    to    allidavits    on    apiilicatiniis 

lie  granti'd  under  the  general  prayer  for  relief.  tiierefor,  iliscussed. 

.)/.  k'hiiioii   V.  Mr/h,ii,ia/l,  \{.  K.   I).,  ;!4'_>.  Hminlfon  >  i  nl .  v.  liroiru  ,1  n/.,  '.'Old.,  ■-'iH'. 

s.    <ii'anted  where   remedy  at  lommou  ^     UK    Injunction,  attaciinient  lor  breath  (if 

Law   inadeijuate   and    impossible  for    jury  to    — A  rule  niti  for  an  attaelnneiit  for  hreach  ot  an 
estimate  damaj^es  The  owner  of  land  leased  a    injunction  need  not  state  that  it  was  granted  on 
parcel  to  plaiiititl',  for  the  purpose  of  erecting  a  l  reading  the  injunction.     All  that  is  ncce.s.saiy  is 
lolistor  factory,  for  the  term  of  five  jears.    Aboiil  !  to  jiroduce  the  injunction  in  Court. 
a  twelvemonth  afterwards  the  defendant,  Slieild,  ,  S/mr  Mniiiij)irliiriii;i  Co.  v.  I'nirhitid:-. 

ap[)lied  for  a  lease  of  the  .same  land  for  a  similar  I  •'*  ^i-  •^^  "■•  "'• 

pnr])ose.     Defendant    adinilted    that    when    lie  ■ 

had  part  of  the  materials  on  the  ground  for  the;     n.    Injunction  shouid  uot  require  |»arl} 

erection  of  his  building,  plaintiff  forbade  him  to    to  plead  — When  a  i>arty  applies  to  the  ("ouit  t'l 
procee<l,  and  asserted  liis  right  to  the  land,  and    prevent  another  from  doing  an  act  which  will  he 


653 


INJUNCTION. 


654 


iiijiirioiiH  til  hJH  riglitH,  the  iiijiitu  tion  iiMki'tl  for 
onjjlit  not  to  rt'i|uirf  tlie  otlitT  |)iirty  to  plcud. 
Hidniinh  V.  7'hfi  City  of  HnliJ'nr, 

iJTlioni.,'2'i7. 

\i.   Injunction  sought  to  restrain  parties 

from  applying  for  legislation—  I'laintiir  iliiiimil 
Id  lii^  cntitliMl  to  .<N(l,<)(XI  lioniU  on  thu  Kiuttern 
Kxtinsidii  Kdilwiiy,  to  l)e  Hccured  upon  the 
I'ji'tiiii  Hraiuli  Rnail  in  the  event  of  its  heinj,' 
tiiiiinffiTed  to  tiic  tlefemliint  conipiiny  iih  u  huIi- 
\i'ii;ii>n  in  aid  of  tlit;  I'on.struction  of  Kastern 
KxttMision.  The  defendants  were  a]>plying  for 
l>  1,'islaiioii  wliioli  HJioidd  pi'ovitle  that  in  the 
cveiil  (if  the  road  not  lieing operated  totheHatis- 
faitiiiM  (if  tiie  (lOvernor-in-C'ouncil  of  the  I'ro- 
viiii'i',  it  HJioidd  hei'onie  tiie  projjerty  of  the 
i'nivince  free  from  incundirance.  I'laintitt',  t'on- 
ti'Miiing  that  this  woidd  invalidate  his  liondsand 
was  a  iireacli  of  a  coniproniisu  made  with  him, 
smight  to  restrain  the  defendants  from  applying 
|(ir  »<iR'h  legislation. 

Ikkl,  that,  as  the  purp(jse  of  the  eoncession 
was  tn  secure  the  construction  and  continued 
(iporation  of  the  road,  and  the  proposed  legisla- 
tiiiii  (.'(intained  a  proviso  that  the  trustees  of  the 
liiiintli(ildcr8  should  have  notice  liefore  any  for- 
fuirure  of  the  road,  that  was  all  that  they  had 
a  ligiit  to  expect,  and  llie  plaintiff  was  not  en- 
titled to  tjie  injunction  prayed  for. 

(Jrijunj  V.  Caiiaila  Im/irofemuil  Co.  it  a/., 

R.  E.  D.,  .358. 

13.  Injunction  to  remove  water  pipes- 
Highway  -Dedication  of— Plaintiff  prayed  an 
iiijuiiution  to  compel  defendants  to  remove  cer- 
tain water  pipes  laid  through  and  under  plain- 
tiffs land,  and  also  claimed  (hunages  for  trespisses 
ccjiiiniittcd  in  digging  trenches  and  laying  pipes 
thcrehi.  It  appeared  that  the  acts  complained 
of  were  connnitted  on  property  covered  by  a 
grant  to  plaintiff,  but  close  alongside  of  the 
travelled  tract  of  a  road  which  had  been  used 
iis  a  public  highway  for  over  sixty  years. 

No  dedication  or  laying  out  of  the  road  was 
proved,  but  it  was  shown  by  the  records  of  the 
Court  of  Sessions  of  the  County  oi  Halifax  that 
proceedings  were  commenced  in  1790  to  lay  out 
the  roiul,  and  that  the  Sessions  made  an  order 
directing  the  Sheriff  to  sunnnon  a  jury  of  the 
next  township  to  lay  it  out  pursuant  to  law. 

The  Act  under  which  the  proceedings  were 
taken,  40  (Jeo.  3,  c.  1,  required  that  the  return  of 
the  SherifiF  should,  after  notice  to  the  owners  of 
the  nature  and  course  of  the  road  to  be  made  or 
altered  through  their  lands,  be  confirmed  and 
recorded  by  the  Court  of  Sessions,  and  that  the 
road  should  be  made  or  altered  accordingly,  and 
should  "  thenceforth  become  a  public  highway." 


'  //ltd,  that  under  the  lerniH  of  the  Act,  the 
road  would  not  become  a  public  highway  luitil 
the  return  and  notice  had  been  contirnicd  and 
recorded  and  that  in  the  absence  of  proof  of  thid 
having  been  done  the  laying  out  of  the  road 
tinder  the  statute  could  not  lie  presumed,  even 
in  view  of  the  long  user,  merely  from  the  fact 
that  the  Court  of  Sessions  had  ordered  the 
sheriff  to  summon  a  jury  for  that  puriMise. 

Also,  that  even  if  the  road  had  been  laid  out 
as  contended  the  soil  in  the  highway  remained 
in  the  owner  of  the  property  through  which  it 
ran  who  could  maintain  trespass  for  digging  up 
the  soil  and  laying  pipes  therein. 

I      /Vr  Wealherbe,  .1. — That  as  no  irreparable 

j  injury  was  shown  the  injunction  to  compel  the 
removal  of  the  pipes  should  not  be  granted,  but 
that  the  verdict  for  damages  should  stand  if  the 
trespasses  had  been  committed  within  the  limits 
of  the  plaintiff's  grant. 

Kmrwy  v.  Diclc.son,  20  N.  S.  K., 

I  (8R.  &G.),  95. 

On  (i/i/tia/  to  the  Sui>rfme  Court  of  Canada, 

\  lit  Id,  reversing  the  judgment  below,  that 
in  the  absence  fif  any  evidence  of  dedication  of 
the  road,  it  must  be  presumed  that  the  proceed- 
ings under  the  statute  were  rightly  taken,  and 
K.  could  not  recover. 

Dickson  V.  Ktarmy,  14  S.  C.  R.,  743. 

14.    Injunction  to  restrain  action  at  law 

granted — Mitchell  sold  property  to  Dodge  for 
."jiHijfKX),  which  plaintiffs  purchased  from  Dodge 
for  §'20,000.     The   property   was   subject  to  a 
mortgage    made    by    Mitchell   to    Davis,   who 
assigned    it    to    Sterling,   and   it    was    agreed 
'  between  Dodge,  Mitchell  and  the  plaintiffs  that 
Mitchell  should  take  up  the  mortgage,  and  that 
plaintilfs   should  pay   Dodge  §,5000,    give    him 
notes  for  §20(X),  and  make  a  mortgage  to  Mit- 
chell for  the  balance  of  S13,000  payable  in  instal- 
ments,   for    which    notes   were  also  given   to 
I  Mitchell.     In  the  mortgage  made  by  plaintiff  to 
:  Mitchell  it  was  provided  that  the  latter  should 
'  pay  off  the  mortgage  made  by  him  and  assigned 
]  to  Sterling,  and  that  until  it  was  pivid  off  Mit- 
j  chell   should   only    receive   from    plaintiffs  the 
!  difference  between   the   interest  due  on  their 
mortgage  to  him  and  the  interest  on  Mitchell's 
mortgage  assigned  to  Sterling,  and  that  until 
Sterling's  mortgage  was  paid,  plaintiffs  should 
not  be  liable  for  anything  but  the  difference 
between  that  mortgage  and  their  mortgage  to 
Mitchell.     Defendants  Wier  and  White  obtain- 
ed from  Mitchell  an  assignment  of  plaintiffs' 
mortgage  and  notes  as  security  for  a  debt,  after 
which    Mitchell    became   insolvent,    defendant 
Graham  becoming  his  assignee,  and  Sterling's 


655 


INJUNCTION. 


656 


inortgagu  uivk  fDrc^cloncd,  ami  the  propurty  f  'Id.  1 
Wier  uixl  White  olitainoil  a  re-nalo  on  giving  a 
bond  to  tlie  aMH'gnec  to  hid   thi'  pri>i)i'ity  up  to 
l!l|l,.'«N).     Wior  and  White  puroliaHud  the  pro- ; 
pcrty  for  SS.VJO,  and  an  action  wan  Itroiiglit  on 
tho  hond,  to  wliiph  tliey  pluadod  that  tin;  hal- 1 
ance  iiad  heen  oro<lit«d  to   Mituiiull,  hy  agree- ' 
menl,  on  an  ac;coiint  due  White.     IMaintinVt  paid 
on  tlic  mortgage  to  Mitchell  ^'JtJ.V)  licttidex  inter- 
OBt,   and  took   up  tlirce   notcH  for  87'»<>  each, 
wiicn  Wier  and  Wiiite  oonunenccd  action  against 
them  to  recover  tiie  amount  nf  two  otiier  notes 
for  .^iTiWand  8r)(K»  respectively.  | 

//i/il,  that  Wier  and  White  should  ho  res- 
trained from  further  proceeding  in  tlio  action  to 
recover  the  amount  of  tiie  notes,  and  from 
transferring  the  remaining  notes,  the  ditl'erence 
between  plaintitFs'  iiKirtgage  and  the  mortgage 
assigned  to  Sterling  being  more  than  covered  by  i 
the  amount  paid  by  plaintitFM  and  tlie  amount ' 
credited  l)y  Wier  and  Wliito  to  Mitcliell  on  the 
purchase  at  tiie  sherilF's  sale  under  foreclosure. 
ShiihuiH  if  nl.  V.   Wiu-  tt  al.,  K.  E.  I).,  173.  | 

I 

i 

15.    Injunction  to  restrain  Common  Law 

BUit — Wliere  an  injunction  fi'om  the  Kijuity 
Court  was  outstamling  restraining  the  plaintiffs 
from  ])roceeding  in  tiieir  Common  Law  suit,  the 
Court  refused  t(j  extend  a  8ul)mission  in  the 
Connncm  Law  suit,  applied  for  to  enable  the 
parties  to  i)roceed  with  the  reference  whenever 
the  injunction  should  be  removed.  ; 

Oixh&rne.  v.  Gaiic  Hre'on  Co.,  '1  II.  &  C,  .374 ; 

•J  C.  L.  T.,  60-2.  I 

i 

10.    Injunction  to  restrain  sale  under  exe- 

cution  —  Conveyance  by  insolvent  of  all  hia 
property  for  benefit  of  creditors  —  Effect  aa  ' 
respects  judgment  subsequently  recorded  —  j 
Injunction  to  restrain  sale  under  judgment  — 
Cloud  on  title— Apparently  good  title— Rogers 
&  Co.,  on  the  10th  of  May,  assigned  all  their 
individual  and  partnership  property,  both  real 
and  personal,  to  a  trustee,  for  the  general  benefit 
of  tlieir  creditors,  and  executed  at  the  .same 
time  a  deed  in  trust  to  him  of  their  lands,  which 
was  recorded  l'2th  of  May.  Defendants  entered 
a  judgment  against  Rogers  &  Co.  on  the  l.")th  of 
May,  which  was  recorded  the  next  day.  On 
the  17th  of  May  a  writ  of  attachment  was  issued 
against  Rogers  &  Co.  under  the  Insolvent  Act  of 
187.'),  and  in  June  creditors'  assignees  were  ap- 
pointed, to  whom  the  trustee  subsequently  con- 
veyed the  lands,  which  were  afterwards  sold  to 
certain  of  the  plaintiffs,  who  conveyed  to  others 
of  the  plaintiffs  in  trust  to  secure  the  purchase 
money  to  the  creditors'  assignees.  Defendants 
proceeded  to  advertise  and  sell  the  land  under 


execution,  and  plaintiffs  nougiit  to  restrain  tiiein 
by  injunction. 

Ifild,  that  as  between  the  parties  to  it,  ili« 
deed  from  Rogers  &  Co.  to  tiie  trustee  was  valid, 
and  that  it  wan  open  to  the  creilitors'  asMigni'i>.s 
if  they  considered  it  for  the  benefit  of  tlie  estate 
to  have  the  jiroperty  conveyed  to  them  hy  tiic 
trustee ;  that  the  judgment  creditor  nevir 
obtained  any  lien  on  tiie  property  under  his 
judgment,  but  that,  altlioiigli  tiie  Ctmrt  wouM 
restrain  a  judgment  creditor  from  selling  prop- 
erty even  under  a  judgment  tliat  would  I'rmvcy 
no  title  to  the  purchaser,  and  where  the  creditor 
only  proposed  to  sell  the  right,  title  and  interest 
of  tlie  judgment  debtor,  yet  it  was  incuinliciit 
on  the  plaintiffs  to  show  tliat  tlie  cloud  on  tlicir 
title  was  caused  by  what  was  apparently  a  good 
title,  though  in  fact  defective,  and  that  in  the 
present  case  defendants  had  not  an  apparently 
good  title,  as  the  first  deed  from  Rogers  i  Co. 
appeared  to  convey  the  title. 

Weatherbe,  J. ,  roiinifriinj,  limited  his  opinion, 
with  reference  to  tlie  effect  of  the  deeil  from 
Rogers  &  Co.  to  the  trustee,  to  the  case  of  a 
naked  conveyance  by  the  insolvent  for  the  bene- 
fit of  creditors. 

Johii'<  if  al.  V.  liarhonr  ef  al.,  .3  R.  &  (1.,  4.'{; 

'JC.  L.  T.,t;o;i. 

17.    Injunction  to  stay  sale  until  validity 

of  judgment  settled —.Sanderson,  one  of  tlie 
defendants,  liad  been  obtaining  discounts  fioin 
the  Hank  of  Nova  .Scotia  on  paper  indorsed  hy 
one  or  more  persons,  and  the  agent  of  the  bank 
becoming  dissatisfied  on  account  of  the  iuuh'M'oih 
renewals,  and  referring  to  the  possibility  of  the 
indorsers  being  called  upon  to  take  up  the 
notes,  .Sanderson,  in  .luly  18.)9,  gave  the  Hank 
a  judgment  for  the  exact  amount  then  due  on 
the  notes.  In  September  l.SdO,  the  plaiiititl':*  re. 
covered  judgments  against  .Sanderson,  and  ii 
numlier  of  other  judgments  were  entered  up 
against  him  by  parties  who  were  ma<le  defen- 
dants in  the  present  suit.  Sanderson  continueil 
'to  get  notes  discounted  until  1874  when  his 
affairs  became  embarrassed,  and  the  bank 
ceased  to  discount  his  paper.  The  notes  tlien 
at  the  Bank  were  taken  up  by  the  indorsers, 
and  Sanderson  ceased  to  be  indebted  to  tlie 
Rank.  In  1874,  the  parties  who  were  then  in- 
dorsers on  .Sanderson's  paper  discounted  at  the 
Bank  took  proceedings  to  revive  the  judgment, 
and  issued  and  delivered  to  the  Sheriff  an 
execution,  with  instructions  to  levy  on  .Sander- 
son's real  estate. 

Held,  that  the  judgment  having  been  taken 
for  a  specified  sum  ascertained  at  the  time  to  lie 
due  the  Bank  and  which  had  been  long  since 
paid,   neither   the  Bank   nor  the  indorsers  of 


657 


INJUNCTION. 


G58 


8Anil(TH(in'H  ])apor  roiilil  iniiko  it  availalilo  for 
uny  HiiliNt'i|iii>iit  lial>ilitii!H,  SiiiiultanooiiHly  with 
iliu  iMHuiiig  of  tlio  cxuiMition  ut  the  unit  of  tlio 
ISaiik,  tlic  olliur  itvfenilaiitN,  whoNe  jiiilginuuts 
wpri>  Hiii>HR<|UCiit  tn  tliono  of  thv  plaintiirM,  ha-l 
pxt-ciilions  placed  in  tiie  SliurilV'H  IuiikIh  l)y  Mr. 
(irantliiiiii,  wlio  wiw  tlio  attonivy  liy  whom  all 
the  (!Xi!ctitioiiH  wort!  iNHiU'il,  with  iiiHtructioiiH  to 
Invy  for  thi>  ninouiit  of  tlu!in  on  Samlt'rHon'H  I'oal 
ORtate,  anil  tho  land  was  ail  vert  iHod  l>y  the  .SlioritT 
h»  one  sale,  tiic  advertinetnent  huing  huaded  in 
all  the  cauHeHof  the  HevuralilefendantM,  including 
the  Hank. 

JIi/il,  that  under  the  circuinstancoH,  the  sale 
Imnn  under  the  direction  of  (irantliain,  the  attor- 
ney in  all  the  causes,  the  plaintittH  were  juMtitieil 
in  making  the  incuinhrancers  HiihHeijiient  to  the 
liiwik  defendants  in  this  suit.  Otheiwise,  possi- 
Illy,  if  these  MuliHei|uent  iiicumhrancors  hail  not 
connected  themselves  with  the  Hank,  hut  had 
advertised  sales  under  their  respectivii  judg- 
ments, suhjoct  to  prior  incumlirances. 

Injunction  to  stay  the  sale  until  the  validity, 
or  otherwise,  of  tho  Judgment  at  tho  suit  of  the 
Dank  was  settled,  continued,  hut  only  on  the 
condition  tliat  the  plaintitTs  sho\ild  give  an 
nndcrtaking  to  hring  on  tho  case  for  trial  at  the 
next  term  of  the  Supreme  Court  in  tho  County, 
or  that  their  hill  bo  dismissed. 

Costs  decreed  against  tho  Hank,  Imt  not  as 
against  the  other  defendants. 

Moody  rl  nl.  v.  lianl-  of  Xovn  Scolia  it  nl., 

R.  K.  I).,  1-J9. 

18.    Injunction,  when  granted  -The  Court 

will  oidy  grant  a  writ  of  injunction  in  ca.ses  of 
extreme  necessity,  where  redress  cannot  he  oh- 
taincd  in  the  usual  legal  mode. 
Thi'.  City  of  Halifax  v.  77ii^  Nova  Scotia  EUctrii' 
Ttkijraph  Co.,  Cochran,  83. 

1ft.  LicenHe  to  search  for  minerals- 
Practice  as  to  — Injunction  refused  —  Five  li- 
censes to  aearch  for  minerals  other  than  gold  were 
granted  to  the  relators,  all  over  the  same  area, 
according  to  the  practice  adopted  by  tlie  Mines 
■Office,  under  sees.  86  and  91  of  cap.  9,  4th  R.  .S., 
the  first  to  expire  21st  May,  1874,  and  the  others 
at  intervals  of  about  one,  two,  three  and  four 
years  respectively  thereafter,  the  licenses  having 
been  all  granted  on  or  about  the  same  ilate.  On 
the  'JSth  May,  1877,  two  days  after  the  expira- 
tion of  the  relators'  fourth  license  to  search 
■defendants  having  a  license  to  search  over  an 
area  overlying  in  part  the  area  covered  by  rela- 
tors' licenses  to  search,  applied  for  and  obtained 
a  license  to  work  one  square  mile  partially  over- 
lying and  including  within  its  boundaries  the 


area  under  license  to  search  to  the  relators,  'i'ho 
latter  applied  for  an  injunction  to  restrain  tlio 
ilofcndaiitM  from  interfering,  which  was  refused 
by  the  Ki|uity  Court  on  tho  ground  that  over 
tho  area  first  aliovo  referred  to,  which  contained 
only  four  and  a  ijuarter  sijuaro  miles,  not  more 
than  four  valid  licenses  to  search  could  li<-  granted 
—that  the  relators'  fifth  licenst'  to  search  expiring 
.May  'J7th,  1878,  was  invalid,  and  that  on  tho 
■J8ih  May,  1877,  there  was  no  obstacle  to  tho 
defendants  obtaining  their  license  to  work. 
On  appeal  from  this  decision  the  Court, 
Ihfil,  that  tho  practice  of  tho  otlico  was  wrong 

■  in  granting  more  than  one  license  tn  search  with 
right  of  renewal  to  the  same  party  over  the 
.same  area  -that  on  this  ground  tho  license  to 
search  relied  on  by  relators  was  invalid,  and  that 
without  respect  to  defendants'  title  the  injunction 
must  be  refused  but  without  costs,  as  both  piir- 
ties  had  acted  under  an  erroneous  view  of  I  la- 
law. 

,        Attorney  fie.mral  v.  Fraser,  3  R.  iS:  ('.,  ',i't\. 

'iO.  Material  allegations  on  which  grant- 
ed denied  by  defendant  -Injunction  dissolved 
on  the  ground,  iiiti  v  alia,  that  all  the  material 
allegations  on  which  the  writ  was  granted  were 
denied  by  defendants. 
I         ^f^•h'ay\■.  Sutherland  et  ai,  R.  K.  1).,  ;WJ. 

'21.    Practlce-An  injunction  must  be  spe* 

citically   prayed  for,   and   will    not    be   granted 
under  the  general  prayer  for  relief. 

M>-Kinnon  v.  McJ)ou;/ull,  R.  K.  D.,  34'J. 

22.    Preservation  of  rights  of  party  apply- 

,  ing  for  till  determination  of  suit— No  injury 
from  injunction  to  other  party— /Vr  Thomp- 
son, .1. — The  injunction  a])plieil  for  seems  neces- 
j  sary  to  tho  preservation  of  tho  right  in  dispute, 
I  i.  e.,  the  right  of  the  plaintiff  to  obtain   the 
j  insurance  moneys  under  his  so  called  e((uitable 
:  assignment.''.      Such   being   the   case   I   cannot 
'  refuse  it,  as  I  was  urged  to  do,  on  the  ground 
j  that   although   that  right   might   be   lost,    tho 
]  plaintiff  would  not  be  wholly  without  remedy, 
i  nor    do  I   think   I  can  refu.se  it  on  the  other 
ground  that  plaintiff  cannot  recover  in  this  suit 
for  want  of  such  an  equitable  assignment  as  will 
sustain  his  bill.      The  time  to  determine   this 
latter  point  is  at  the  hearing,  and  until  it  is 
determined  against  the  plaintiff,  he  has  a  right 
to    have   the   thing   in   controversy   preserved. 
Moreover  I  can  see  no  injury  which  will  result 
from   the   injunction    to    the    defendants   who 
oppose  it,  even  if  their  defence  should  prevail, 
excepting  a  delay,   which  need  be  but  a  very 
short  delay,  for  the  suit  can  be  brought  to  a 


659 


INJUNCTION. 


ooo 


hi'itrini^  iiliiiont  ut  otico.  On  tho  (ithor  hand  tliu 
ivMiill  cif  rt'fiiKiii^  till'  injiiiiction  timy  lie  u  very 
Hfiidiitt  iiri'jiulirf  to  tho  pliiinlitrH  lightn. 

Thu  UHiiiil  interlocutory  injunction  or  ri-ntruin- 
in^  onltr,  will  tiivrvforu  l)v  t^runtfil.     Costn  will 

uliiilc  CVI'llt, 

W'o/j'l     V.   Jolli  X    it  III.   \ 

III.  V.  1 1  ml, 
Unrntorliil.     Filtd  Su/in  mi   Coitrf,  it' //(i/ijhjc, 

ill    IIIIIMI     1,1,17.1(1. 

*J3.   KeniHcd  where  adequate  legal  remedy 

at  Cummon  Law  -I'liiiniiiruM  uKHinnccof  K.  W. 
CliipiiiaM,  uiiilcr  the  liiNnlvcnt  Act,  olitiiincil  an 
•  irdiT  to  ri'Htiain  tlic  ShcrilF  of  AnnupoliM  from 
KcUing  under  execution  pertionul  property  of  tlie 
iuHolviint,  which  he  chiiined  iiad  |)UNHed  tu  liini 
under  theaHHi({nnient,  Huid  property  liaving  heen 
allowed  hy  the  uHHiguee  to  remain  in  tiie  handN 
of  thu  iuMolvent,  who  had  reniuvud  it  to  Annapo- 
liB,  where  it  was  levied  iijMin. 

//i/il,  that  aH  the  remedy  of  the  anBignee  by 
action  at  law,  a.sxuming  the  levy  and  propoHed 
wile  to  l)e  unjuHtitialile,  was  complete,  the  re- 
nt raining  order  niUHt  he  diMcharged. 

Tniii/i  V.  lioiiiii/l  it  a!.,  K.  K.  I).,  INO, 

24 .   Refused  where  adequate  legal  remedy 

at  Common  Law— I'laintilf  a])plied  for  an  in- 
junction to  restrain  defendant  fioni  Helling  or 
otherwise  diMpouing  of  lumber,  of  which  he 
claimed  to  be  owner  under  an  alleged  purchase 
from  the  company,  the  validity  of  whicli  wiuB 
disputed.  The  injunction  wad  refused,  plaintiff 
having  an  adetjuate  legal  remedy  at  Common 
Law  by  action    for  damages. 

Mortn  V.  Hhdhnrm  Liimhir  Co.  flat., 

R.  K.  1).,  134. 

m.    Restraining  defendant  fk'om  working 

mining  areas— What  misrepresentations  in 
application  for  injunction  will  invalidate— 
Thu  defendant,  Cameron,  agreed  to  sell  to 
plaintiff  a  farm  iu  Charlotteburg,  Ontario,  for 
f4r>,(K»0  subject  to  a  mortgage  for  ?! 4,000.  The 
plaintiff,  in  consideration,  was  to  assume  the 
814,000  mortgage,  and  convey  certain  gold 
mining  areas  and  other  property  to  defendant 
at  the  price  of  $20,000,  and  for  the  balance  of 
Sll,(KX)  he  was  to  convey  to  defendant  his 
dwelling  house  at  Truro.  The  defendant  ob- 
tained a  transfer  of  the  areas  under  circumstances 
as  to  which  the  affidavits  were  contradictory 
but  it  was  uncontradicted  that  the  title  to  the 
real  estate  which  he  was  to  convey  to  plaintiff 
was  encumbered  to  the  extent  of  upwards  of 
$15,000  more  than  had  been  represented.  Plain- 
tiff having  obtained  an  injunction  to  restrain 
defendants  from  working  the  areas, 


I      //«/>/,  that,  aKMuming    the    utatements  of  the 
i  defemlant  to  be  true  as  to  the  way  in  which  hu 

obtained  the  transfer,  there  was  a  serioiiN  i|ueM* 

ticm  to  bo  Hidmiitted  to  the  Court,  whether  the 
i  defendant    wan    justitied    in     recording  it   and 

claiming    the   areas,     and    thai    the   injunttina 

could  not  be  dissolved. 

J/i/il,  further,  that   the  injunction  wonM  not 

be  disturbed  on  account  of^miHrepreHentalioUM  Iu 
I  tl  e  alhdavits  on  which  it  was  obtained  unlexit 
'■  the  case  were  such   that   if  the   facts  had  been 

stated  accurately,    the   injnnctiim  would  have 

been  refused. 

Ciifinj  V.  CnnuroH  it  «/.,  K.  K.  I).,  3"0, 

26.  Restraining  f^om  permitting  waste 

water  to  flow  on  plaintitl's  property,  &c  - 
Where  the  ilefemhiiit  had  no  drain  leading  from 
his  jircinises  to  the  common  sewer  on  the  street, 
and  the  plaint  itf  jjreveiited  all  access  to  a  drain 
(Ml  Ids  own  pro|)erty  through  which  the  water 
might  (low  to  the  sewer  from  defendant's  pro- 
perty, but  ilefendant  proved  no  title  or  right 
to  use  such  tlrain,  the  Court  granted  an  injunction 
to  restrain  defendant  not  only  from  permitting 
his  waste  water  to  (low  on  phiintilV's  property, 
but  from  receiving  water  from  the  city  water 
works  until   a  suitable  drain  was  constructed, 

i  the  evidence  showing  that  the  introduction  of 
such  supply,  in  the  absence  of  a  suitalde  drain, 

,  occasioned  an  overflow  on  jilaintif!  "s  premises. 

I  Mott  V.  /iiirns,  K.  K.  D.,  l.T). 

27.  Restraining  order  — Party  applying 

for  must  disclose  material  facts— Preliminary 
injunction— Court  influenced  in  doubtf\il  cases 
by  relative  convenience  or  inconvenience  to- 
parties — Plaintiff  applied  tx  jtarte  and  obtained 
an  order  to  restrain  the  defendants  from  laying 
.  water  pipes  through  her  land  for  the  purpose  of 
supplying  the  Provincial  Asylum  for  the  In.sar.o. 
The  facts  uiwn  which  the  order  was  obtained 
were  confined  to  a  statement  that  defendants  had 
entered  upon  land  of  which  plaintiff  had  been  in 
possession  for  several  years,  and  had  dug  a 
trench  for  the  purjKJse  of  laying  water  pii)e8  for 
the  purpose  mentioned  ;  that  defendants  claimed 
to  be  acting  under  the  authority  of  the  Provincial 
Government,  but  the  Government  had  no  right 
to  authorize  said  acts,  nor  had  the  defendants, 
and  the  same  were  unwarranted ;  that  if  the 
work  was  not  restrained,  plaintiff  would  suffer 
irreparable  injury,  as  it  was  to  be  permanent, 
and  defendants  were  not  able  to  respond  to 
damages  to  any  considerable  amount.  It  wa» 
not  disclosed,  but  subsequently  appeared  that 
the  land  through  which  defendants  were  pro- 
ceeding to  lay  the  pipes  had  been  used  for  uiany 


661 


INLAND  REVENUE  ACT. 


661 


yean  m  a  ptiMic  highway,  iiml  that  pipe*  hml 
Ih'im  laid  llicrriti  twi-iity-tivo  ywiPM  pruvinimly 
fur  the  Willie-  purpoHit,  iintl  tliu  tlieii  priipriutorit 
liHil  Ix't'ii  c'onipi'iiMut«!il  for  tho  (hiniu(|(f. 

//>/'/,  nil  iippcul  froin  IV  ilui'iNidii  of 'rhoinpNon, 
.1.,  iliHMolviiii^  till'  injiinctioii,  tliiit  tliv  oiniHHioii 
of  pliiiiitltrH  I'oiiiiNi-l,  whi-n  ho  olituiiiotl  the 
ri'BtriiiiiiiiK  onh'r,  to  lirin^  licfore  tJio  Court  thu 
cMHti'iici'  of  tlic  hi^liwuy  and  itH  ruliitioii  to  tiiu 
injury  roinpliiiiu'il  of,  wiih  Hiitllciunt  ground  for 
iliKiiiiNHing  thu  appuul. 

Simh/i,  that  a  liiHclomiro  of  the  faotn  referreil 
to  vMiiild  havtt  duttTiiiincd  thu  original  applica- 
tioiiiigaiiiHt  till'  pliiintitr. 

Ill  doulitful  LiiHt'8  tho  Court  will  gt'iicrally  lio 
^iivi'riu'(l  ii.  granting  or  withholding  a  preliniiii- 
iiry  iiijiimtion  liy  a  conHidi-ration  of  thu  rt'lativu 
riiiivt  iiii'iu'i'  or  iia'onvcnieiiuo  which  may  ruault 
to  the  particM. 

Kiuriiiy  V,  Dicknon  O  a/.,  0  H.  &  (1.,  (!') ; 

lie.  L.  v.,  140. 

On  (i/ijiKil  to  lh>  Sii/iniiu.  Court  of  Vaumla, 

Ihhl,  that  tho  order  of  the  Siipitnin  Court 
(if  Nova  Si'otia  was  not  one  from  which  an  appeal 
world  lie. 

Appeal  (|uaiihed  with  cotitx. 

Kiantnj  v.  iJlck-oii,  Ciis.  Digest,  '2'y(t. 

'28.   Restraining  sale  of  Hsb- Plaintiffs 

iliilined  to  lie  entitled  to  tish  in  a  certain  licrth, 
iiiuler  regulations  made  hy  tho  SeKsioiiH  on  the 
iiiithority  of  an  Act  of  the  LegiHlature.  Under 
the  evidence  t)ie  Court  inferred  that  ilefendants 
were  authorized  by  the  plaintiiTs  to  shoot  their 
siiiie,  plaintiffs  to  have  half  the  tish  caught, 
and  having  done  so  the  defendants  secured  a 
catch  of  tish,  of  which  plaintiffs  claimed  half 
under  the  agreement.  t 

ffilil,  that  the  plaintifTs  were  entitled  to  half 
the  tish  caught,  and  that  the  relief  which  they 
souglit,  namely,  that  defendants  should  deliver 
to  them  their  share  of  the  proceeds  or  account 
to  them,  and  in  the  meantime  should  be , 
restrained  from  selling,  etc.,  was  properly 
sought  in  this  Court. 

Doijtrty  tt  al,  V.  Power  et  at.,  R.  E.  D.,  419. 

29.  Restraining  sale  under  mortgage  not 

yet  due— Terms— Where  trustees,  having  power 
to  sell  a  mining  property  conveyed  to  them  by 
way  of  mortgage  to  secure  the  payment  of 
interest  on  bonds  issued  by  the  Mining  Com- 
pany, the  principal  of  which  was  not  yet  due, 
advertised  the  property  for  sal  3,  instead  of  pro- 
ceeding by  way  of  foreclosure,  and  the  plaintifTs, 
who  had  the  equity  of  redemption,  although 
aware  of  the  intention  to  sell,  delayed  seeking 
the  information  necessary  to  enable  them  to 
prevent  a  sale  to  their  injury,  and  applied  for 


1  an  injunction  only  two  day*  before  tho  day  o( 
Hale  the    Court  granted    thu    iujunctioii    upon 

I  payment  by  the  mortgagors  of  tho  interest  on 

I  the  oiitNtanding  boinlH,  and  their  undertaking  to 
[Miy  the  fxpeuNeii  incurred  in  preparing  for  tho 
sale, 

j  Woofl  tt  al.  v.  Ifnr>  ,1  n/.,  K.  K.  I)..  'JOl. 

30.  Shares-  Right  to  transfer-  Insolvency 

—Perpetual  injunction  to  restrain  suit-  I'lain- 
titr,  the  holder  of  a  niiniberof  shares  in  the  Hank 
of  Liveipool,  sold  tiio  same  to  S.  and  forwarded 
to  him  a  power  of  attorney  authorizing  thu 
registry  of  the  transfer.  At  the  same  time  ho 
forwarded  tn  tho  manager  of  the  bank  his  stock 
certitioates  to  be  cancelled  on  the  transfer  being 
registered  and  notilied  the  bank  of  the  transfer. 
8.  paid  tho  consideration  for  thu  shares,  and 
received  the  transfer,  which  he  forwarded  to  thu 
manager  whom  he  reifuested  ami  authorized  to 
register  his  acceptance.  The  bank  declined  to 
register  thu  transfer  until  after  payment  of  a  cer- 
tain loan  obtained  by  the  Bank  of  Liverpool  from 
the  Itank  of  Xova  Scotia,  which  had  been  pro- 
cured in  pursuance  of  a  resolution  jiassed  at  a 
meeting  of  shareholders  at  which  plaintiff  was 
present,  ami  which  purported  to  bind  the  share- 
hidders  to  hold  their  shares  without  assigning 
them  until  the  principal  and  interest  due  on 
such  loan  had  been  fully  paid.  In  the  mean- 
while tho  bank  retained  tho  papers,  promising 
that  when  the  loan  was  repaid  the  transfer 
wouhl  be  duly  entered.  Subse(|uently  the  Haak 
of  Liverpo<d  became  insolvent  and  assigned  to 
the  Hank  of  Nova  IScotia. 

H</(1,  on  the  authority  of  Smith  v.  Thi'  Hank 
of  Xoiu  Srotin,  3  S.  C.  R  ,  ")'>S,  there  being 
evidence  that  tho  loan  wa.s  affected  on  other 
security  than  the  resolution,  and  that  the  resolu- 
tion was  never  acted  upon,  that  the  plaintiff  was 
not  deprived  by  the  passage  of  the  resolution  of 
the  legal  right  to  transfer  his  shares  and  to  have 
the  transfer  registered  in  the  books  of  the  bank. 
Bams  V.   The  Hank  ofXora  Scotia, 

6  R.  &  «.,  254  ;  6  C.  L.  T.,  443. 

31.  Suppression  of  material  fiicts- In- 
junction dissolved  on  tho  ground  of  suppression 
of  material  facts,  and  because  the  case  on  which 
it  was  obtained  was  fully  met  by  defendant. 

Gnffin  et  al.  v.  Taylor,  R.  E.  D.,  427. 


INLAND  REVENUE  ACT. 
Pleading  the  general  issue— Necessity  of 

such  plea— To  an  action  brought  against  defen- 
dant, an  auctioneer  in  the  city  of  Halifax,   to 


663 


INSOLVENCY. 


664 


recover  damages  for  the  alleged  wrongful  sale  of 
a  horse,  waggon  and  harness,  seized  by  officers 
of  the  Inland  Revenue  while  being  usei'.  for  the 
purpose  of  removing  a  quantity  of  spirits  unlaw- 
fully manufactured  and  liable  to  excise  duties, 
defendant  pleaded  twenty-nine  grounds  of  de- 
fence which  were  expanded  at  great  length. 

The  Judge  of  the  County  Court  for  District 
No.  1  holding  that,  under  the  Customs  Act, 
Acts  of  1885,  c.  12,  s.  2*28,  and  the  Inland 
Revenue  Act  of  1883,  c.  14,  s.  7'2,  the  defendant 
was  bound  to  plead  the  general  issue  and  give 
the  general  subject  matter  in  evidence,  and  that 
the  defences  as  pleaded  were  unnecessarily  pro- 
lix, and  were  unnecessary  and  embarrassing, 
made  an  order  directing  that  all  the  pleas  be 
struck  out  with  the  exception  of  tlie  4th,  wliich 
denied  the  allegations  and  issues  in  the  plain- 
tiff's statement  of  claim,  and  which  he  held  to 
be  equivalent  to  the  general  issue. 

Iltkl,  that  the  order  must  be  set  aside  with 
costs. 

McDonald  v.  Clarke,  20  X.  S.  D., 

(8R.  &G.),  254; 

8  C.  L.  T.,  401. 


INSOLVENCY. 

1.  Act  for  Relief  of  Insolvent  Debtors  Is 

intra  rirei: — The  Act  of  the  Provincial  Legisla- 
ture 1878,  ch.  8,  providing  for  the  relief  of 
debtors  imprisoned  on  process  out  of  the  County 
Courts  is  not  idtra  vires. 

An  action  was  tried  in  the  County  Court  in 
February,  1878,  before  the  passage  of  the  Act, 
against  Commissioners,  for  discharging  a  debtor 
imprisoned  on  process  out  of  the  County  Court, 
but  the  judgment  which  was  in  plaintiff's  favor 
with  eight  dollars  damages  was  not  pronounced 
until  December  1878,  the  Act  having  passed  in 
April,  1878,  one  clause  of  which  provided  that 
no  action  in  any  Court  should  be  taken  or  sus- 
tained by  reason  of  proceedings  theretofore 
taken  for  the  relief  of  such  debtors  being  illegal, 
invalid  or  void.  An  appeal  from  this  judgment 
was  sustained  with  costs,  each  party  paying  his 
own  costs  in  the  Court  below. 

Johnston  v.  Poyntz  et  a/.,  2  R.  &  G.,  19,S  ; 

1  C.  L.  T.,  706. 

2.  Appeal  —  Insolvent  debtor  process— 

Appeal  from  decision  of  Commissioners  where 
no  County  Court  Judge  in  the  County  held  to 
lie  to  the  Court  of  Sessions — An  appeal  from  a 
decision  of  Commissioners  refusing  to  discharge 
an  insolvent  debtor  was  taKen  to  the  Court  of 
Sessions  on  the  ground  that  there  was  no  County 


Court  Judge  in  the  County  where  the  debtor  was 
confined.  The  Justices  having  refused  to  hear 
the  appeal,  on  the  ground  that  they  had  •"  i  juris- 
diction and  an  order  having  been  appliea  .  jr  to 
compel  them  to  do  so. 

Held,  that  the  appeal  was  properly  taken- 
The  debtor  was  held  under  an  execution  issued 
out  of  the  Supreme  Court.  Construction  of 
chapter  118  Revised  Statutes  (5th  Series)  section 

27. 

Armntrowj  v.  Trefney,  7  R.  &  G.  19. 

3.  Appeal  under  Insolvent  Act  of  1875 

quashed,  appellant  not  having  "  adopted  pro- 
ceedings on  the  appeal  " — An  order  was  miule 
by  the  County  Court  Judge  in  an  insolvent 
matter  under  the  Act  of  1875,  for  the  purpose 
of  appealing  from  which  the  insolvent,  witiiin 
eight  days  from  the  making  of  the  order,  filed  a 
bond  approved  of  by  the  Judge,  and  o'hlaiued 
from  him  an  order  giving  leave  to  appeal  to  tills 
Court.  No  further  proceedings  were  taken  in 
this  Court  within  the  eight  days. 

Held,  that  the  appellant  had  not  "  adopted 
proceedings  on  tlie  said  appeal "  within  tlie 
meaning  of  section  128  of  the  Act  and  that  tlie 
alleged  appeal  must  be  quashed. 

In  re  David  Buckley,  3  R.  &  G.,  l.')4. 

4.  Appeal  In  cases  under  Indigent  Debt- 

'.  ors'  Act — 

j  See  APPEAL,  IV. 

I    5.    Appointment  of  assignee  —  Invalidity 

of,  how  attacked — Plaintiff,  as  creditor's  assig- 
nee, sought  to  set  aside  a  judgment  given  l)y 
i  confession  by  two  alleged  co-partners,  as  made 
1  in  contemplation  of  insolvency.      Defendant  de- 
i  nied  that  plaintiff  was  assignee,  and  it  appeared 
!  that  at  the  meeting  of  creditors  there  was  only 
I  one  person  who  had  fileil  a  claim,  and  his  claim 
]  was  without  a  voucher,  yet,  instead  of  abandon- 
ing the  meeting  as  a  failure  and  calling  another, 
giving  due  notice,   the   meeting  adjourned  to 
another  day,  on  which  the  plaintiff  was  appointed 
assignee. 

Held,  that  the  appointment  was  invalid,  that 
the  proceedings  could  be  impugued  witliout 
going  into  the  Insolvency  Court,  and  that  tlie 
defendant's  denial  that  plaintiff  was  assignee  as 
alleged  obliged  him  to  prove  it. 

BeiUair  v.  Gilliatt,  3  N.  S.  D.,  525,  and  referred 
to  in  1  R.  &  C,  264,  questioned. 

BroioH  V.  I'earmaii,  R.  E.  D.,  491. 

6.    Assignee's  commission— The  Assignee 

in  his  final  account  charged  commissions  oQ 
$7,400,  the  gross  proceeds  of  real  estate  sold 


665 


INSOLVENCY. 


6G6 


under  foreclosure,  the  whole  of  which,  with  the 
exception  of  S14  burplua,  wiis  paid  over  by  the 
Slieriff  to  tiio  Attorney  of  the  mortgagee. 

//(('(/,  tluit  tlie  asHignce  was  not  entitled  to 
commission  on  the  S7, 400 and  that  the  judgment 
on  tlie  order  mn  must  be  reversed. 

In  re  Estate  ofOruiU,  Insolvent,  3  R.  &  C,  5.38. 

7.  Assignee  of  Indigent  Debtor  a  trustee— 

An  assignment  by  the  mortgagor  of  his  e(juity 
of  redemption,  under  the  Insolvent  Debtor's 
Act,  maives  his  assignee  a  trustee  for  him,  and 
leaves  in  him  a  renuviuing  interest,  in  the  nature 
of  an  eijuity  of  redemption,  suttiuient  to  entitle 
liii7i  to  be  made  a  party  to  u  foreclosure  of  the 
mortgaged  premises. 

Mayhew  v.  Fen,  James,  108.  : 

8.  Assignee  —  Removal   of— Power  of 

Judge  —  Tlie  power  given  to  the  Court  or  a 
Judge  by  section  125  of  the  Insolvent  Act  of 
1875,  to  remove  an  assignee,  is  confined  to  the 
case  of  an  assignee  disobeying  an  order  made  i 
under  said  section,  and  does  not  extend  to  otlier 
miscfmduct  on  the  part  of  the  assignee,  the  gen- 
eral power  of  removal  being  committed  to  the  i 
creditors,  under  section  29.  ■ 

The  Judge  of  the  County  Court  removed  an 
assignee,  and  it  appeared  that  an  agreement  had  ; 
been  made  without  the  knowledge  of  the  cred- 1 
iters  generally,  under  which  the  assignee  con- 1 
veyed  the  estate  to  his  father  and  co-partner, ' 
the  partnership  guaranteeing  thirty-three  and  | 
one-third  per  cent,  of  the  defendant's  composi- 
tion of  forty  per  cent. ,  and  receiving  from  the 
insolvents  one  thousand  dollars  for  their  guar- 
antee, the  father  to  hold  the  estate  as  security 
for  payment  of  the  §1,000.     The  Court  reversed 
the  decision  of  the  County  Court  on  the  ground 
above  indicated,  but  refused  the  assignee  the 
coats  of  the  appeal  and  argument  anu  of  the 
proceedings  in  the  County  Court. 

James,  .J.,  dissenting  »»  to  t\ie  costs. 
In  re  Estate  of  Ecans,  ex  parte  Falconer, 

1  R.  &G.,326. 

9.  Assignee— Re*openlng  order  for  dis- 
charge of— The  assignee  in  his  final  account 
charged  commission  on  §7,400  the  gross  proceeds 
of  real  estate  sold  under  foreclosure,  the  whole 
of  which  with  the  exception  of  $14  surplus  was 
paid  over  by  the  SheriflF  to  the  attorney  of  the 
mortgagee.  The  order  for  the  assignee's  dis- 
charge passed  December  20th,  1877,  and  on  Janu- 
ary 3rd,  1878,  the  County  Court  Judge  granted  an 
order  nisi  to  re-open  the  order  for  discharge  in 
order  that  this  sum  of  $7,400  should  be  deducted 
from  the  amount  on  which  assignee's  commission 


was  charged.  The  Judge  after  argument  dis- 
charged the  order  nisi  on  the  ground  tliat  the 
eight  days  for  appeal  from  the  order  discharging 
the  assignee  having  expired,  the  assignee  was  be- 
yond the  summary  jurisdiction  of  the  Court. 

Held,  that,  apart  from  any  legislative  act 
conf'.-rring  it,  the  Judge  liad  power  to  re-open  the 
order  for  the  discharge  of  the  assignee  for  tiie 
purpose  of  reducing  his  charge  ;  tiiat  in  addition 
the  Judge  had  the  power  under  sec.  28,  sub-sec. 
/*,  of  the  Insolvent  Act  of  1875. 
In  re  Estate  of  Qrant,  Insolvent,  3  R.  &  C. ,  538. 

10.  Assignee   under  Insolvent  Debtors' 

Act,  liability  of —  Surplus  proceeds — Adverse 
possession — In  order  to  make  an  assignee  un- 
der tlu)  Insolvent  Debtors'  Act  liable  for  not 
collecting  the  assigned  debts,  there  must  be  dis- 
tinct proof  of  neglect,  or  of  positive  forl>earance 
on  his  part  toward  the  debtors,  without  the 
concurrence  of  tlie  assignor,  and  of  consequent 
loss ;  and  also,  that  the  debts  assigned  were  of 
real  value. 

The  claim  of  an  assignee  of  the  equity  of  re- 
demption in  mortgaged  premises  for  surplus  pro- 
ceeds remaining  after  the  sale  of  premises  on 
foreclosure  of  the  mortgage,  is  not  barred  by  a 
twenty  years'  possession  of  the  premises  by  the 
assignor,  who  claimed  under  the  mortgagor,  the 
mortgagee  havirig  by  the  foreclosure  suit  asser- 
ted a  paramount  claim  to  the  possession,  and  the 
premises  being  sold  under  that  claim. 

Sfmbk,  the  possession  of  the  assignor  of  an 
equity  of  redemption  is  not  adverse  to  the  as- 
signee, unless  shown  to  be  in  opposition  to  his 
will. 

Collins  V.  Reid  et  al.,  2  Old.,  252. 

11.  Assignment  —  Attachment  under  In* 

solvent  Act — Insolvent  Act  of  1869  inlni  vires 
— Sheriff,  action  against — Where  the  defendant, 
as  Sheriff,  levied  on  certain  goods  under  execu- 
tions, and  a  writ  of  attachment  in  bankruptcy 
was  afterwards  issued  against  the  execution 
debtor,  but  the  Sheriff,  after  the  issue  of  the 
attachment,  proceeded  to  sell  under  the  execu- 
tions and  paid  over  the  proceeds  to  the  execution 
creditors,  the  Court  refused  to  set  aside  a  verdict 
against  the  Sheriff  at  the  suit  of  the  assignee  for 
improperly  selling  the  goods,  etc.,  and  for  his 
failure  to  duly  execute  the  writ  of  attachment 
and  hand  over  the  property  of  the  insolvent  to 
the  assignee. 

Held,  that  the  return  to  the  writ  of  attach- 
ment did  not  estop  the  plaintiff  in  the  present 
suit  from  saying  that  the  same  had  not  been 
duly  executed. 

Held,  also,  that  a  verdict  for  the  net  proceeds 


667 


INSOLVENCY. 


668 


of  the  sale  witli  1*2  per  cent  luUled,  was  not  ex-  was  fileil  witli  tlic  assignee  of  service  of  copy 
cessive,  the  evidence  justifying  tlie  tinding  of  on  tiie  ulainiunt.  Insolvent  Act  of  IH7.">,  sec.  95. 
the  jury  tiiat  t!ie  goods  would  have  hrougiit  that 
amount  if  properly  sold.  Section  TjU  of  the 
Insolvent  .-Xct,  1S09,  is  iiih-n  rirex. 


In  ri:  Morion  (Colli,  «  daim), '.?  R.  &  (J.,  174  ; 

1  C.  L.  T.  664. 


Kiiiiny,  A'<'<>tinee,  v.  Dwlman,  "2  R.  &  C,  19. 


12.  Attachment  under  Inoolvent  Act,  1875 

—Affidavit  for— Requisites  of— Plaintiff 's  atK- 
davit  for  the  issue  of  a  writ  of  attauhniunt  under 
the  Insolvent  Act  of  1S7."),  followed  the  require- 
ments of  the  .Statute,  section  !),  setting  out  as 
grounds  for  the  Inilief  that  defendant  was  insol- 
vent, the  fact  that  he  had  called  a  meeting  to 
compoiind  with  his  creilitors,  had  exhihited  a 
statement  showing  his  iuahility  to  meet  his  lia- 
hilities,  and  had  otherwise  acknowledged  his 
insolvency,  (sec.  .'J,  a.) 

Hthl,  reversing  the  decision  of  Johnstone,  J., 
that  the  atiidavit  was  sutHcient. 

Foster  V.  lioome,  3  R.  &  C,  344. 

13.  Certificate  or  discharge  pleaded  as 

defence  to  action  —  Cannot  be  attacked  for 
irregularity — In  an  action  to  recover  a  debt 
defendant  produced  a  certificate  of  his  discharge 
as  a  JMinkrupt. 

lli'ld,  that  it  was  not  competent  to  the  plain- 


17.    Claim  on  Insolvent's  estate  —  Effect 

of,  on  lien  —1),  X.  Shaw  stored  a  lot  of  tish  wiili 
defundants,  which  he  afterwards  sold  to  Riclmnl- 
son  giving  him  a  memo,  headed  "  \V.  M.  Richard- 
son bought  of  I).  N,  Shaw,"  signed  by  the  latter. 
Richardson  paid  half  in  cash  and  gave  Shaw  a 
note  for  the  balance  which  was  indorsed  liy 
defendants  and  retired  by  them  at  maturity. 

Richardson  after  the  sale  became  insolvent,  and 
plaintiff,  his  assignee,  produced  at  the  tirst  meet- 
ing a  memo,  of  iwsets  the  tirat  item  of  which  was 
"2.S6  bbls  of  mackerel  stored  at  Black  Brothers, " 
defendants.  One  of  the  defendants  attended  the 
meeting  and  saw  this  memo,  remarking  to  tho.se 


present  that  he  was  not  aware  of  any  fish  of 

Richardson's  stored  with  them,  but  he  gave  no 

such  intimation  to  the  assignee  or  insiNictor,  and 

long  after  the  defendants  made  a  claim  on  the 

estate  for  the  amount  of  the  note,  stating  tliiU 

they  held  no  security,  and  a  dividend  was  paid 

them.     The  assignee  having  brought  an  action 

of  trover  for  the  fish  recovered  a  verdict, 

HM,  that  the  defendants   had   no  right  to 
tiff  in  this  action  to  shew  irregularity  in  the  pro- I  ^^^^^i„   ^,,^  ^^^^  ,^^  ,^,,^i„,  ^j  ,i^,^   ^^^.j^^^  ,^^^,^ 

ceedings  in  the  Insolvent  Court  or  to  attack  the  ,  ^^^  „p^  ^,„i  ^,,^t,,y  holding  the  note  and  claiming 

discharge  on  the  ground  that  defen.lant  was  not    j^^  the  account   on   the   insolvent  estate  they 

a  trader,  an.l  therefore  not  a  legitimate  subject .  „.„„i,,  ,„^^.^  j^^^  ^„  ^jg,,^  ^^  ^^^^^j,^  possession 


of  the  jurisdiction  exercised. 

Ihulair  v.  (lilliatt,  3  N.  S.  I).,  525. 
Questioned  in  Brown  v.  Ptarman,  R.  E.  l').,491. 


14.  City  of  Hallflix  no  lien  for  taxes  under 

Act — The  City  of  Halifax  has  no  preferential 
claim  for  taxes  against  the  assignee  under  the 
Insolvent  Act  of  1875. 

In  re  Frederick  B.  K.  Alarter,  3  R.  &  G.,  412. 


of  the  fish  if  they  ever  had  any  such  right. 
Hart,  Anxiifnee,  v.   Troop  tt  a/., 

2R.  &(J.,351; 
2C.  L.  T.,95. 

On  appeal  to  the  Supreme  Court  of  Canada, 


Held,  Strong,  J.,  dissentiiuj,  that  the  defend- 
ants had  failed  to  prove  the  right  of  property  in 
themselves,  upon  which  they  relied  at  the  trial ; 
I  that  the  property  was  in  the  respondent,  who 

15.    Claimants  ranking;  on  firm  and  prl-  j  J'*^.  '^  *«""'«*  ^''«  appellants,  no  claim  for  lieu 

vate    estates  —  Claimant  held   the    joint  and 


several  notes  of  Ladd,  Porter  &  Co.  as  a  firm, 
and  of  each  of  the  two  partners  in  their  indi- 
vidual capacity,  as  security  for  a  debt  due  by 
the  firm. 

Held,  on  appeal  from  the  County  Court,  that 
luuler  section  84,  of  the  Insolvent  Act  of  1875, 
claimants  were  warranted  in  ranking  on  the 
firm  estate  and  also  on  the  private  estates  of 
the  co-partners. 

I7i  re  Ladd,  Porter  d-  Co. ,  Imolvents, 

Hall  et  al.,  Claimants,  1  R.  &  C,  32. 

16.   Claims  —Objections  to  claim  against 

insolvent  estate  dismissed   where  no  evidence 


having  l>een  set  up,  a  right  to  the  immediate 
possession  of  the  fish.  2.  That  as  the  fish  had 
not  l)een  stored  with  appellants  by  way  of 
security  for  a  debt  due  by  insolvent,  appellants 
could  not  at  the  same  time  make  a  claim  on  the 
estate  for  the  whole  amount  of  insolvent's  note, 
receive  a  dividend  thereon,  and  retain  jwssessiou 
of  the  fish. 

Troop  et  al.  v.  Hart,  7  S.  C.  R.,  512  ; 
2  C.  L.  T.,  251. 

18.   Commissioners  releasing  debtor-In 

an  action  against  a  Sheriff  for  releasing  a  debtor 
imprisoned  under  process  out  of  the  County 
Court,  an  order  having  been  made  for  his  dia- 


669 


INSOLVENCY. 


G70 


ulmryu  by  coininissioiiers  for  the  relief  of  iiisol-  !  sition  notes,  made  for  part  of  the  diviileiul  on 
vcMit  ilet)tors,  the  t'oiinty  Court  decided  ill  favor  the  chiinm  of  J.  V.  Oava/A  for  ?l,7iV),  sijifned 
of  tlif  phiintirt's  on  tlie  ground  tiiat  previous  to  hy  the  other  three  <!avaza»  ami  hy  Susan 
Aiiril  4th,  1878,  sucii  noniniissioncrs  hail  no  Marshall  and  Thomas  W.  Chesley,  jMiyahle  ti> 
power  to  relieve  in  the  case  of  execution  out  of  the  order  of  J.  V.  (iavaxa,  and  liy  him  indorseil 
thi' County  Court.  After  the  argument  of  the  to  the  plaintifls  after  maturity, 
a])iH'al  from  this  decision  and  before  judgment,  //(•/'/,  McDonald,  C.  .1. '/mi(  m'i'h;/,  that  J.  V. 
the  Act  of  187H,  "for  the  relief  of  debtors  im-  Cava/u  being  one  of  the  insolvents,  was  not  one 
prisoned  under  process  issued  out  of  the  County  of  the  creditors  covenanted  with,  and  therefore 
Cimrt'"  was  jwssed,  one  clause  of  which  provided  was  not  entitled  to  composition  notes  under  the 
tlmt  no  action  should   be  taken  ov  •ntstniiitd  \>y    deed. 

rcajion  of  such  proceedings  l^ing  void  (i.  e.  '  That  although  he  might  have  had  a  right  to 
proceedings  Injfore  the  connnissioncrs  taken  rank  in  respect  of  the  •*>1.7.V)  against  the  separate 
pri'vious  to  this  Act.)  estates  of  his  co-insolvents,  he  had  relinijuished 

//'/(/,  that  this  Act  was  retrospective  ami  the  such  right  by  consenting  to  the  traussfcr  of  the 
act  inn   could    not    be   sustained,    but    that    the    assets  to  Chesley. 

judgment  for  defendant  should  be  without  costs  That  the  notes  to  be  signed  by  Marshall  and 
as  the  action  had  been  rightly  brought  in  the  Ciiesley  were  notes  to  the  creditors  of  all  the 
tir.st  instance.  insolvents,  and  not  notes  from  three  of  them  to 

The  Court   refused  to  grant  a  re-argument,  '  the  other,  and  that  Marshall  aiul  Chesley  were 
applied  for  on  the  grounds  that  the  Act  of  1878    only  indemnified  as  to  the  former, 
was  iilh-a  riri-i,  ami  that  it  could  not  I. •;  con-        That  J.  V.  (iavaza  was  not  one  of  the  creditors 
strucd  retrospectively.  who  relea.sed  their  claims  by  the  deed. 

Culli/i  tf  al.  V.  Caldwell,  1  R.  &  (i.,  74.  :      That  consecjuently  there  was  no  consideration 

for  the  note  sued  on,  as  to  Marshall  and  Chesley. 
i      That  inasmuch  as  the  note  sued  on  had  been 

19.  Composition  and  discharge -Notes  for  .lelivered  only  to  the  assignee  to  satisfy  a  mis- 
compoaition-Principal  and  surety- rromis-  ^.^ken  notion  entertained  by  him,  that  he  was 
sory  notes,  making,  delivery,  and  considera-  entitled  to  demand  such  notes,  and  with  express 
tion -Finding  of  County  Court  Judge  on  i„J,t,,„^.^i,J,ig  Hj^i  1,^  ghould  not  jwrt  with  it, 
facts-.!.  V.  Cavaza  was  in  imrtnership  with  |  ii,pj,e  ^.^^  „„  delivery  by  the  makers  as  a 
tliiee  other  (iavazas  previous  to  26th  February,    contract. 

1S77,  when  he  retired,  and  the  others  continued  ,  //^,/,/^  ^Ixo,  that  the  weight  of  evidence  estab- 
tii«  business  as  T.  A.  (iavaza  &  Sons.  On  re-  !  ijshcl  the  defence  that  the  claim  of  .'  V.  (iavaza 
tiling  he  was  to  receive  S2,00f»  for  81,7r><»  of  f,„.  hi^  dividend  had  been  satisfied  .y  another 
wliich  he  took  the  note  of  the  new  firm.  Shortly  „„te  {„  which  one  Bonnett  joined  as  surety, 
afterwards  all  four  were  put  into  insolvency  on  Jx,,lg,nent  of  County  Court  reversed  and  judg- 
debts  of  the  old  firm.  J.  \.  (iavaza,  although  \  „ie„t  entered  for  defendants, 
one   of  the  insolvents,  prove.l  as  a  creditor  on  Sttphm  tt  al.  v.  Oaraza,  4  R.  &  G.,  514. 

the  note  for  81,750,  and  acted  as  a  creditor  in  all  | 
tlie  insolvency  proceedings.     The  insolvents,  on 

the  14th  November,  1877,  offered  a  compromise  ■    20.    Contemplation  Of  Insolvencf  —  Deed 

•)f .')()  cents  on  the  dollar,  payable  in  6,  12,  and  made  in— Admissions  —  Sylvanus  Morton,  on 
18  months,  and  to  be  secured  by  the  joint  and  '  the  26tli  day  of  April,  1873,  made  a  deed  of  pro- 
8e\end  notes  of  the  insolvents,  and  of  .Susan  perty  without  consiileration  to  his  daughter,  con- 
Marsiiall  and  T.  W.  Chesley.  The  offer  was  ■  tinuing  himself  in  possession  of  the  property 
accepted  and  a  «leed  of  composition  was  made  '  until  October,  1875,  when  he  failed.  Previous 
and  confirmed.     By  the  deed  the  four  insolvents  !  to  the  date  of  the  deed  the  Liverpool  and  Acadia 


covenanted  to  pay  the  composition  and  to  secure 
it  by  such  notes,  and  the  creditors  released  their 
claims  and  authorized  the  assignee  to  return  the 
estate  to  the  insolvents.  The  deed  was  dated 
.10th  Noveml)er,  1 877.     On  28th  December,  1877, 


Biinks,  of  one  of  which  Morton  was  president, 
and  a  large  shareholder,  had  suspended  ;  and  a 
firm  in  which  he  was  concerned  had  failed  two 
days  before  the  date  of  the  deed.  Previous  to 
the   making   of   the  deed,    the  in.solvent    had 


the  four  (iavazas  joined  in  a  request  to  the  '  admitted  to  a  creditor  that  if  certain  proceed- 
assignee  to  convey  the  estate  to  T.  \V.  Chesley  '  ings  threatened  against  him,  as  president  of 
"  to  hold  the  same  in  trust,  to  convert  the  same  said  Bank,  were  taken,  he  would  assign.  After 
into  money  to  meet  the  claims  of  our  creditors  \  the  making  of  the  deed  he  was  challenged  in 
on  promissory  notes  signed  by  Mr.  Chesley  as  '  reference  to  it,  and  said  it  was  all  he  could  do, 
our  surety."    In  an  action  on  one  of  the  compo- 1  under  the  circumstances,  to  save  his  property. 


G71 


INSOLVENCY. 


crz 


//(/(/,  tlmt  tlie  (li'i'd,  having  bei'ii  inadu  at  n 
titnc  when  tlic  gruutor  contvinplatuil  a  stalu  of 
thiiigH  tliat  iiiiglil  rt-Mult  in  inHolvenuy,  an<l  which 
(lid,  in  fat't,  ho  reault,  must  ho  sot  aside,  even 
had  it  not  lieen  shoun  tluit  the  insolvent  contin- 
ued in  iKissession,  and  a  few  days  after  inaking 
the  deed  iidiiiitted  to  his  creditor  tliat  it  was  all 
he  could  ilo  tt.  savt'  his  jiroiierty. 

Ford,  Atsiijitte,  v   MiUs  it  uL,  R.  K.  D.,  3*23.  i 

'21.   Contemplation  of  insolvency  —  Mort* 

gage  made  in— Hindering  and  delaying  credi- 
tors-Howell  &  .Stewart,  in  .lune,  1S71,  entered 
into  co-partnersliij)  as  ff>unders,  itc,  the  former 
to  give  lii.s  skill  and  ability  to  the  Ini.siness,  and 
the  latter,  who  was  a  minor,  to  supply  capital 
and  purcliase  stock  to  the  extent  of  $4,000.  At  i 
the  time  of  tiie  agreement,  a  lot  of  land  was  pur- 
chased for  ji  10,(KK.»,  on  whicii  to  erect  Imildings 
for  the  business,  but  nothing  was  {mid  on  account 
of  the  purchase  money,  wiiich  wivs  secured  by  a 
mortgiige.  The  deed  was  taken  in  the  name  of 
Howell  and  Mrs.  Ailams,  the  motiierof  Stewart, 
who  advanced  tile  S4,0(H»  to  start  the  business. 
Although  plaintiff  contended  that  this  advance 
Wiuj  simply  made  by  Mrs.  Adams  to  her  son, 
there  was  some  evidence  to  siiow  that  it  was  to 
be  repaitl  by  the  partnership.  Stewart  became 
of  age  in  February,  1873,  and  in  August  of  that  ' 
year  the  partnership  was  ilissolved,  anil  a  mort- 
gage made  by  Howell  to  Mrs.  Adams  to  secure 
the  amount  of  her  advances.  The  plaintiff,  as-  ' 
signce,  sought  to  have  the  mortgage  declared 
void,  OS  made  in  contemplation  of  insolvency. 
At  the  time  of  making  the  mortgage  the  business 
Wiis  emlxirassed,  but  the  jury  found  that  the 
mortgage  wiw  not  made  in  contemplation  of  in- 
solvency, and  they  negatived  fraud  in  the  trans- 
action, though  they  found  that  the  conveyance 
had  the  effect  of  impeding,  obstructing  and  de- 
laying creditors. 

The  Court  upheld  the  conveyance, 

Franer,  AnKujnee.,  v.  Adanis  tt  al., 
R.  E.  D.,  2.35. 

22.    Contemplation  of  insolvency— Plead- 
ing— The  plaintiff,  an  assignee,   proceeded  by 
bill  in  eijuity  to  procure  the  cancellation  of  a 
conveyance    made  by  the    insolvent,    charging 
that  the  conveyance  had  been  made  contrary  to 
the  provisions  of  Insolvent  Act  of  1809,  with 
intent  to  give  an  unjust  preference  to  certain 
creditors,  and  fraudulently  to  impede,  obstruct , 
or  delay  the  creditors  in  their  remedies,   and  ; 
with  the  knowledge  of  the  grantees,  or  retvson-  i 
able  cause  on  their  part  to  know  and  believe  ! 
that  the  grantor  was  unable  to  meet  his  engage-  ' 
ments.    The  jury  found  that  at  the  time  of 


nmking  the  conveyance  the  grantor  was  in  em- 
barra.MHfd  circumstances  and  unable  to  nufct  lii.s 
engagements  ;  but  tliey  found  that  the  gran- 
tees did  not  know,  and  iiad  not  reasonalije 
cause  to  know  or  believe  tliat  such  inaliiUty 
existed,  and  they  negatived  any  intent  fraudu- 
lently to  imjK'de,  obstruct  or  delay  the  creditors. 
f/tid,  atiirming  the  judgment  of  the  Kiiuity 
Court,  that  tiie  jury  having  found  as  they  had, 
on  ample  evidence,  the  conveyance  couhl  not 
be  set  aside  under  section  88,  of  the  Acts  of 
1869,  and  tiuit  plaintiff  could  not  attack  it 
under  section  89,  as  having  been  made  in  con- 
tcmplati(m  of  insolvency,  as  that  was  not 
charged  in  the  bill. 

Forrtut,  AxKi'ipiie,  v.  Afuir  ft  aJ.,. 
3R.  &C.,4o7. 

23.  Contemplation  of  insolvency  —  Qucs* 

tion  for  jury— Plaintiff,  as  assignee  under  liie 
Insolvent  Act  of  18G9,  brought  an  action  of 
trover  against  defendant  for  certain  goods  trans- 
ferred by  the  insolvent  thirty-nine  days  before  the 
assignment,  the  transfer  being  attacked  in  tliis 
suit  as  void  under  section  89  of  the  Act.  Plain- 
tiff, on  the  trial,  put  in  evidence  a  bill  of  sale 
made  by  the  insolvent  about  two  months  pre- 
viously to  the  assignment,  for  the  pur{W)sc  of 
proving  contemplation  of  insolvency  on  the  jxirt 
of  the  insolvent  at  the  time  of  making  the 
transfer  in  (question.  The  circumstances  con- 
nected with  the  said  bill  of  oale  were  explained 
so  satisfactorily  to  the  mind  of  the  Judge,  that 
he  withdrew  the  consideration  of  it  from  the 
jury. 

Held,  on  a  rule  nisi  for  a  new  trial,  that  it' 
should  have  been  left  to  the  jury  to  say  what 
effect  should  be  given  to  it. 

Fomst,  Amijnee,  v.  Almon  tt  al., 

3R.  &C.,  110. 

24.  Contemplation  of  insolvency— Section 

133  —  Insolvent  Act  of  1875  —  The  insolvent 
T.  J.  B.,  being  indebted  to  the  Merchants'  liank, 
made  an  arrangement  in  pursuance  of  which  he 
addressed  a  letter  to  the  Accountant  of  the  Rail- 
way Department  on  October  '22nd,  1878,  instruct- 
ing him  to  send  any  cheque  coming  to  him  from 
the  department  to  the  care  of  McLean,  Cashier 
of  the  liauk.  The  cashier  received  the  letter, 
which  was  addressed  to  the  insolvent,  care  of 
Merchants' Bank,  and  having  removed  thechecjue 
which  he  indorsed  "T.  J.  B.,  per  G.  M.,  agent. 
For  Merchants'  Bank.  Guaranteed."  G.  y~., 
cashier,  drew  the  money  without  authority  from 
the  insolvent  and  refused  to  pay  it  over.  At  the 
time  of  the  arrangement  in  1878,  T.  J.  B.,  wm 
in  insolvent  circumstances,  with  notes   lying 


C73 


INSOLVENCY. 


674 


overdue  at  the  Merchants'  li<ink,  hiuI  jiulgmunts  ' 
rucoriluil  ugiiiiiHt  him. 

//»/(/,  tliat  the  arriingfincnt  was  made  in  con- 
tciiiplation  uf  insolvency,  and  was  witliin  the 
prdvisions  of  section  l.'W  of  tiic  Act  of  l!S7.'),  and  ' 
tlwit  the  assignee  was  entitled  to  the  full  amount 
received  I'y  tiie  tlefcndant  kvnk  with  costs. 
Criiijhton,  Anaijnte,  v,  Mtrchaitl.s'  Hank  it  al., 

3  R.  4  (i.,  1.19. 

'i'u   Comteniplation  of  Insol vencj  -Trans* 

fer  of  notes  to  accommodation  indorsera  to  pro- 
tect other  notes  not  yet  due— l>»dge  &  Co. 

lifing  largely  indebted  to  various  creditors,  and 
luiving  notes  lying  overdue  at  the  bank  to  the 
amount  of  .'*7, "<•♦•,  with  others  maturing,  took 
fruiii  one  Mcl'herson  four  promissory  notes, 
dated  October  J6th,  ISTO,  for  lum1)er8oId  to  him, 
•hi'cc  of  which  notes,  to  the  aggregate  amount 
of  .•?.'{, S.'),'!  they  indorsed  to  ilefendants,  to 
meet  a  note  for  .'?3,(MX)  indor8e<l  bj-  defendants, 
dated  July'26th,  1x70.  The  notes  so  transferred 
were  discounted,  and  the  j)roceeds  a|)plied  to 
till'  j)ayn)ent  of  the  S;i,0()0  note,  leaving  a  bid 
aike  of  .'583."),  which  was  retained  by  defendants, 
tliougii  nothing  was  then  due  them  by  Dodge  & 
Co.,  and  was  used  to  retire  a  note  of  Dodge  & 
Co.  that  subsecjuently  became  due.  One  month 
after  tlie  S^.S.CHH)  became  due,  Dodge  &  Co.,  on 
Niiveniber  'JJtth,  1S70,  made  a  voluntary  assign- 
nuiit,  tlieir  liabilities  beir.g  upwards  of  .'JlOO.fMM). 
Tlie  jury  were  instructed  that  if,  when  tho  notes 
tteic  transferred,  Dodge  &  Co.  had  reason  to 
believe  and  did  believe  that  their  affairs  were 
ill  such  a  situation  that  insolvency  woidd  in  all 
prubability  ensue,  though  there  was  a  possibility 
of  tlieir  tiding  over  their  dithculties,  the  transfer 
would  1h!  in  ccmtravention  of  the  statute  (the 
Iiisiilvent  Act  of  1869),  and  lie  deemed  to  be 
made  in  contemplation  of  insolvency,  and  was 
invalid  if  maile  to  give  tiie  defendants  a  prefer- 
ence over  other  creditors.  The  jury  found  for  the 
assignee. 

l/i/il,  that  this  instruction  was  correct,  and 
tiiat  the  statute  was  applicable,  although  de- 
fendants were  not  at  the  time  creditors. 

I/arrk  v.  If'ylde  tt  al.,  R.  E.  D.,  515. 

'26.    Costs  or  application  for  discharge 

of  insolvent,  where  the  discharge  was  refused 

on  appeal,  ordered  to  be  paid  out  of  the  estate. 

In  re  Hxitchimon,  Iiw<olvenf,  3  R.  &  C. ,  40. 

27.  Costs-Liability  of  attachingr  credi- 
tor for  costs  of  official  assignee  —  The  defen- 
dant placed  a  writ  of  attachment  in  the  hands 
of  the  plaintiff,  as  official  assignee  under  the  In- 
solvent Act  of   1875,  who  after  the  creditorg' 


meeting,  gave  defendant  notice  of  taxation. 
Defendant  attended  the  taxation,  and  at  his 
instance  some  of  the  items  were  struck  off.  The 
balance  uf  the  amount,  as  taxed  by  the  Judge 
for  the  costs  of  the  official  assignee  down  to  the 
appointment  of  the  creditors'  assignee,  defen- 
dant promised  to  {my.  An  action  was  brought 
by  the  plaintiff  for  the  amount  and  judgment 
was  given  for  the  plaintiff  by  the  County  Court 
•Judge,  which  on  ap|)eal  was  reversed,  judgment 
Ijelow  being  entered  for  defendant. 

OretrfidU  v.  Yorke,  3  R.  &  O.,  19; 
'2  C.  L.  T.,  GOl. 

28.  Creditor,  when  a  claimant -On  an 

a]>plication  to  confirm  a  deed  of  composition  and 
discharge  under  the  Insolvent  Act  of  1875  a 
creditor  appeared  to  oppose  the  discharge,  who 
had  not  filed  his  claim,  though  he  was  mentioned 
in  the  list  annexed  to  the  affidavit  accompanying 
the  insolvent's  petition  and  notice  of  the  applica- 
tion had  been  sent  him. 

He/il,  that  the  creditor  was  a  claimant  within 
tiie  meaning  of  the  Act,  for  the  purpose  of 
opposing  the  ilischarge. 

In  re  Crciijhfon,  I  R.  &  (J.,  'ill,  orerruled. 

In  n  John  Bauer,  3  R.  &  G.,  149. 

29.  Contest  between  assignee  and  attach- 
ing creditors  under  Absconding  Debtor's  Act 

— Writs  of  attachment  against  the  mortgagor, 
as  an  absconding  delnor,  were  issued,  and  de- 
livered to  the  Slieriff  on  May  'JO.  An  appraise- 
ment of  the  mortgaged  premises  was  made,  and 
cojjics  of  the  writ,  with  the  appraisement  and 
description  of  the  land,  were  regiatered  on  May 
21.  On  the  same  day  a  writ  of  attachment,  under 
the  Insolvent  Act  of  18(i9,  was  taken  out  against 
the  mortgagor,  but  was  not  delivered  to  the 
Sherill'  until  after  he  had  registered  the  docu- 
ments connected  with  the  proceedings  under  the 
Absconding  Debtor's  Act. 

//eld,  that  the  claims  of  the  assignee  of  the 
estate,  to  the  surplus  proceeds,  must  prevail 
over  that  of  the  attaching  creditors. 

Section  24  of  chapter  79,  4th  11.  .s.,  is  con- 
trolled by  the  Insolvent  Act. 

Almonet  al.  v.  Gray  tt  al.,  R.  E.  D.,  6 

30.  Courts  of  one  ProTince  cannot  re- 
strain proceedings  in  Courts  of  another  Pro- 
vince.— Proceeding  by  liquidator  of  insolvent 
company  to  restrain  sale  of  goods  by  execution 
creditor— Laches  —  The  plaintiff  having  com- 
menced proceedings  against  the  defendant  com- 
pany, under  the  Act  of  the  Province  of  Nova 
8cotia  relating  to  the  service  of  process  on 
companies  out  of  the  Province,  obtained  judg- 


675 


INSOLVENCY. 


676 


nient   ami   iasued  execution   under   whiuh   the  j 
ISheriir    levied   upon    oertiiin   property    of   the 
defendant  witliin  the  Province.     Tiie  defendant 
coni|>uny,  wiiich  wixn  incorporuted  under  iin  Act  [ 
of  the  Dominion  Legisliiture  and  had  iti)  head  ' 
oHice  at  Montreal,  in  the  Province  of  Quebec, 
having  lieconie  insolvent,  was  placed  in  li(|uida- 
tion,  and  an  order  was  obtained  by  the  liipiidator  , 
from  the  Superior  (.'ourt  of  Quebec  restraining  , 
the  Sheriff  from  proceeding  to  sell  under  the  [ 
execution.       The   order   was   served   after  tiie  I 
seizure  and  before  the  sale,  but  the  Slieriff  pro- 
ceeded, notwithstanding,  to  sell.     Sub»e(iu<'ntly  | 
the  li(juidator  interposetl  in  the  suit  brought  by 
the  plaint itr  against  tlic  defendant  company,  and 
obtained  a  rule  to  have  the  execution  and  all  i 
proceedings  under  it  set  aside.       PVom  the  time  i 
of  the  issue  of  the  execution,  with  the  li(iuida-  j 
tor's  knowledge,  down  to  the  application  fo    the 
rule,  two  months  had  elapsed,  during  which  time  ' 
several  steps  had  been  taken. 

//</(l,  (1.)      That  the  Quebec  Court  had  no  j 
power   to  enforce  a   restraining  order  to  stay  j 
proceedings  in  tiie  Courts  of  this  Province,  but 
that  proceedings  for  that  purfxise  should  have  j 
been  taken  here.  I 

(2. )  That  the  liejuidator  had  no  power  to  j 
interpose  in  the  suit  between  the  plaintiff  and  | 
defendant.  I 

(."?. )    That  even  if  the  liquidator  could  have  j 
80  interposed  he  must  have  failed  on  account  of 
laches. 

McDonald,  C.  J.,  dinnentinij. 

Tht  Halifax  Jianhimj  Co.  v.  The  Dominion 
Saivaije  <b  Wreckiiuj  Co.,  6  R.  &  G.,  364  ; 
6C.  L.  T.,490. 


31.  Demand  of  assignment— Irregularities 

in,  how  taken  advantage  of  —  Consideration 
for  mortgage  —  Contemplation  of  insolvency- 
Plaintiffs,  as  assignees  under  the  Insolvent  Act, 
sought  to  have  certain  mortgages  decreed  to  be 
void,  which  were  made  by  the  defendant  Smith, 
within  thirty  days  of  demand  made  on  him  to 
assign,  followed  by  an  assignment.  The  evi- 
dence was  conflicting,  but  the  Court  drew  from 
it  the  inference  that  Smith  fln<ling  himself  in 
difficulties,  applied  to  the  Bank  for  $3,000,  in 
the  belief  that,  if  obtained,  it  would  enable  him 
to  arrange  with  his  more  pressing  creditors  and 
avert  the  insolvency  which  must  otherwise 
ensue  ;  that  the  agent  of  the  Bank  first  led  him 
to  believe  that  the  advance  would  be  made,  but 
the  directors  refused,  and,  instead  of  making 
the  advance  required  the  mortgages  to  secure 
existing  liabilities ;  that  defendant  consented  to 
make  them,  encouraged  by  the  agent  to  believe 
that  if  he  did  so  further  accommodation  would 


be  afforded,  but  the  Bank  having  secured  it- 
self and  considering  that  further  accommodation 
could  not  safely  be  afforded,  declined  to  make 
any  further  advances  and  insolvency  ensued,  as 
.*<mith  had  anticiitated.  At  the  time  the  mort- 
gages were  given,  the  insolvent's  paper  was 
lying  overdue  in  the  Bank,  and  the  agent  of  the 
liiink,  o)i  the  execution  of  the  mortgage,  told 
him  that  he  could  not  expect  an  advance  till 
after  the  expiration  of  thirty  ilays. 

I'laintitrs  having  sought  relief  first,  on  the 
ground  that  the  mortgages  were  made  in  consid- 
eration that  the  Bank  wouliladvanceS.'lOOO,  wiiioh 
would  have  prevented  insolvency,  and  secondly, 
that  they  were  given  in  contemplation  of  insdl- 
vency,  and  with  intent  fraudulently  to  iinpedo 
and  delay  creditors, 

Iltlil,  as  to  the  first  ground  that  the  consid- 
eration must  be  ascertained  from  tlie  language 
of  the  instruments  which  referred  to  existing 
indebtedness  and  not  advances,  and  that  Sniiih 
could  not  be  heard  to  alleged  differently  ;  but 
that  on  the  second  ground  the  mortgages  must 
be  decreed  to  be  void  as  against  the  plainlitTs 
and  creditors  of  the  insolvent. 

Objection  was  taken  that  the  r-^iuisition  upon 
Smith  to  assign  was  infornuiUy  made,  the 
affidavit  on  which  it  was  bused  being  liable  to  a 
technical  objection.  But  an  assignment  having 
taken  place  under  it,  and  no  objection  having 
been  made  to  it  in  the  Insolvent  Court,  wiiich 
had  proceeded  to  settle  the  estate. 

Held,  that  it  was  not  for  a  third  party  in  a 
different  Court  to  call  in  question  the  regularity 
of  its  proceedings. 

Sembk,  even  before  the  amendment  of  sec. 
133  of  the  Insolvent  Act  of  1875,  by  the  inser- 
tion of  the  words  prima  facie,  (cap  41  of  1877,) 
the  presumption  of  fraud  could  be  rebutted. 
LoiKjworth  et  al.  v.  Merchants''  Bank  of 

Halifax  et  al.,  R.  E.  D.,  255. 


32.    Discharge  —  Construction  of  Act  — 

T.,  an  insolvent,  made  a  voluntary  assignment, 
which  he  delivered  to  the  interim  assignee  on 
the  Ist  March,  who  called  a  meeting  of  creditors 
for  the  15th  March,  at  which  he  wod  appointed 
assignee  of  the  estate.  On  the  29th  March  the 
insolvent  filed  with  the  assignee  a  deed  of  cow- 
position  and  discharge,  and  an  atlvertisement 
was  thereupon  published  and  continued  for  one 
month,  giving  notice  of  application  for  cor  firm- 
ation  of  the  discharge.  The  application  was 
made  on  May  18th,  and  the  discharge  refused 
on  the  grounds,  1st,  that  the  insolvent  had  not 
deposited  the  deed  with  the  assignee  for  the 
purpose  contemplated,  nor  had  the  assi^aee 
pursued  the  course  prescribed  by  section  97) 


677 


INSOLVENCY. 


G78 


Dominion  Insolvent  Act  of  IStHJ ;  2n(l,  that  one 
mm  til 'h  notice  luul  not  expired  from  the  tirHt 
meeting  of  creditors  of  insolvent  before  the  filing 
of  and  acting  upon  the  deed  of  composition  iind 
disclmrge,  us  re(|iiired  liy  section  'Mi  ;  .'Jrd,  that 
no  cliviilend  could  be  declared  until  three  months 
after  notice  of  the  aiiiiointment  of  the  assignee. 

//</il,  1st,  that  the  insolvent,  if  he  saw  tit, 
might  waive  section  97,  and  jH'oceed  umler 
sei'tiiiu  l(»l  ;  'Jiid,  that  if  the  deed,  when  tileil, 
had  been  executed  by  a  majority  of  the  creditors 
under  section  04,  there  was  no  reason  for  delay, 
us  the  contirmation  itself  could  not  take  jjIiicc 
before  the  montii  luid  expired  ;  Urd,  that  it  was 
not  tlie  meaning  of  section  ri;')  that  no  dividend 
iduM  be  declared  until  after  the  expiry  of  three 
months  from  the  appointment  of  an  assignee, 
but  tliat  a  tlividen<l  might  be  dedareil  at  the 
end  of  one  month  if  the  assignee  had  funds. 

//ihl,  a/xo,  that  the  objections  taken  being 
merely  of  a  preliminary  character,  the  insolvent 
was  not  entitled  to  his  discharge  on  failure  of 
the  objections,  without  further  incjuiry. 

In  re  E.  I).  Tucker,  an  Inw/nnf, 

'2N.  S.  1).,  .300. 

33.  Discharge  —  Improperly   granted  — 

Coats — The  insol.'ent,  having  entirely  disre- 
garded the  provisions  of  the  Insolvent  Act,  as 
to  keeping  proper  books  of  accounts,  had  no 
means  of  knowing  his  actual  financial  condition, 
and  being  refused  acconmiodation  by  parlies 
from  whom  he  had  been  accustomed  to  receive 
it,  gave  them  preferential  security  for  their 
existing  and  future  advances,  the  result  of  which 
was  that  the  goods  purchased  from  other  credi- 
tors, and  not  paid  for,  were  levied  on  for  the 
exclusive  benefit  of  the  creditors  so  preferred. 

The  Judge  in  Insolvency  having  granted  a 
discharge  suspending  its  operation  for  one  year, 
his  decision  was  appealed  from  and  reversed. 

Costs  directed  to  be  paid  out  of  the  estate. 
/«  re  Hutchinson,  Insolvent,  3  R.  &  C. ,  40. 

34.  Discbarge— Plea  of— Reply  of  fraud— , 

AVhere  the  plaintiff,  to  a  plea  of  discharge  under 
the  Insolvent  Act  of  1869,  replied  that  the  dis- 
charge had  been  obtained  hy  fraud, 

Hdd,  that  the  replication  was  good  and  that 
the  Judge  who  tried  the  cause  had  misdirected 
the  jury  in  instructing  them  that  the  question 
of  fraud  was  only  for  the  Court  that  confirmed 
the  discharge,  and  could  not  be  brought  up 
except  by  appeal. 

GodEn  V.  Beech,  1  R.  &  C,  261. 

35.  Discharge  —  Flea  of  —  SchedoUng 

claims— Plaintiff  sued  on  a  note  made  by  defend- 
ant to  John  T.  Fraser  for  $70.86  and  mdoreed  to  I 


him.  Defendant  pleaded  a  discharge  in  insol- 
vency,  to  which  phiintitT  replied  that  the  debt 
had  not  been  scheduled  in  compliance  with  the 
Act.  The  schedule  contained  the  following, 
"John  T.  Fraser's  note  7'2.t)0." 

J/i/il,  that  the  schedide  ilid  not  sutHciently 
describe  the  note  which  being  negotiable  should 
liave  lieen  scheduled  as  "  negotiable  paper,  the 
holder  of  which  is  unknown.'' 

Hntt  V.  Huthtrluml,  '2  R.  &  (J.,  191  j 
1  C.  L.  T.,  (i64. 

36.  Discharge  Plea  of- Claim  on  notes- 
Scheduling  -.ludgment  .'or  plaintitV  sustained 
where  defendant  pleaded  a  discharge  in  insol. 
vency,  and  it  appeared  tliat  the  note  sued  on, 
of  which  the  present  plaint itt'  was  tiie  indorsee, 
had  l)ecn  included  in  the  amount  scheduled  as 
the  claim  of  the  original  payee,  but  no  parti- 
culars of  it  were  given,  as  provided  by  section 
()1  of  the  Insolvent  Act  of  1H75.  The  plaiiititr's 
name  a]ipeaied  in  the  schedule  ;  but  no  amount 
was  set  opposite. 

DeWo//  V.  Xul/y,  1  R.  &  (J.,  '243. 

37.  Discharge  in  insolvency— Schedule  ot 

claim  —  Designation  of  debt— Defendants  were 
sued  on  a  promissory  note  made  to  the  solicitors 
of  the  plaintifT  and  by  them  indorsed  to  plaintiff. 
They  pleailed  a  discharge  under  the  Insolvent 
Act  of  1869.  Two  of  the  defendants  produced 
a  supplementary  list  of  creditors  alleged  to  have 
been  filed  a  few  days  before  the  date  of  the  dis- 
charge, which  list  did  not  give  the  residence 
of  the  parties  scheduled  or  state  the  nature  of  the 
debt,  or  whether  direct  or  indirect,  but  was 
simply  a  bald  statement  of  names  and  amounts, 
and  it  was  not  shown  that  any  schedule  to  which 
it  professed  to  be  supplementary  had  ever  been 
filed  ui  the  manner  required  by  the  Act.  The 
third  defendant  produced  no  schedule,  bub 
stated  that  he  had  sent  it  to  his  solicitor  to  be 
filed.  There  was  no  proof  that  the  solicitor  had 
received  it  or  that  it  had  been  tiled  ;  and,  on 
secondary  evidence  being  allowed,  it  was  shown 
that  the  debt  had  been  scheduled  as  due  to  the 
solicitors  instead  of  being  scheduled  as  due  to 
plaintiff. 

Held,  that  the  discharge  in  insolvency  did  nob 
release  the  claim. 

KnaxU  V.  Sponayle  et  o^.,  4  R.  &  G.,  193, 

38.  Discharge— Scheduling  claims— De- 
fendant and  his  co-partner  became  insolvent, 
and  plaintiffs  filed  a  claim  against  the  partner- 
ship estate  for  the  notes  declared  on,  made  by 
the  partnership  and  indorsed  by  the  defendant, 
without  disclosing  the  security  of  defendants  as 


679 


INSOLVENCY. 


cso 


inilorHiT,  or  that  tliuy  luitl  attiMiiptuil  tn  rank  on 
the  inilividunl  estate.   Dufenilaiit  ol.taiiiod  tlie  re- 
qtiireil  nunilicr  of  Hignatures  to  a  deed  of  coiiipoMi- 
tion  anil  dittcharye,  and  very  shortly  before  lie 
applied  for  it»  crintirnmtion,  plaintitTs  attempted 
tn  amend  their  atiidavit  of  claim  against  the  part- 
nnrHhip  ho  as  to  diHuhme  the  Hecurity,  liut  the 
affidavit  was  not  re-sworn.     At  the  same  time  tt 
claim   wax  tiled  against  the  individual  estate,  i 
Defendant,  hy  his  deed,  covenanted  in  ccmsider-  I 
ation  of  the  discharge  to  pay  a  composition,  and 
give  to  each  of    tlie    creditors   his   promissory 
uotes  secured  by  names  approved  of  by  the  in-  | 
upectors,  but  <lid  not  include  plaintitls'  claim  in 
his  schedule,   or  make  or  deliver  any  notes  to  ' 
them.  ! 

HM,  that  the  claim  wa.s  a  claim  "provable' 
ttgainst  defendant's  individual  estate  within  the 
meaning  of  the  Act,  although  the  right  to  prove 
had  been  lost  by  the  failure  to  disclose,  but  that 
plaintiffs'  claim  was  not  disciuirged,  defendant 
having  refused  to  make  or  deliver  to  tiiem  the 
notes,  and  having  treated  plaintitls  as  if  they 
had  no  valid  claim  against  tiie  estate. 

.Tames,  .1.,  dis.siiitiii<i,  held,  that  tiie  discharge 
was  not  conditional  on  the  notes  being  gisen, 
but  alisolute,  and  that  it  bound  the  plaintiB's. 

I'idou  Hank  v.  Fra^^tr,  2  R.  &  <!.,  116  ; 
1  C^  L.  T. ,  567. 

.SO.  Discharge  -  Sec.  101— Where  an  in- 
solvent had  not  kept  an  account  book  showing  iiis 
receipts  and  disbursements  of  cash  and  the  Judge 
of  the  County  Court,  granted  him  a  discharge  of  , 
the  second  class,  suspending  it  for  four  mouths ;  ' 
on  appeal,  the  discharge  was  contirmed,  Ijut  sus- 
pended for  an  additional  period  of  four  months. 

Wilkins,  J.,  dUxi'iilimj. 

Held,  that  sec.  101  of  the  Insolvent  Act  of 
18G9,  made  it  imperative  on  the  Court  to  refuse 
the  discharge. 

In  re  A.  Mooney,  Insolvent,  2  R.  &  C,  563. 

40.    Discharge  — Suit  commenced  before 

assignment — Plea  puis  darrein  continuance — 
Execution— Plaintiff  recovered  judgment  against 
defendant  after  plea  jmis  darrein  contimiance  of 
composition  and  discharge  under  the  Insolvent 
Act  of  1869,  the  suit  having  been  commenced 
before  the  assignment  of  defendant  under  the 
Act.  The  discharge  was  confirmed  after  plea 
and  before  trial,  but  did  not  appear  to  have 
been  brought  to  the  notice  of  the  Court  in  any 
way  at  the  trial.  On  motion  to  set  aside  execu- 
tion on  the  judgment. 

Held,  that  the  defendant  must  have  the  ad- 
vantage of  the  general  provisions  of  the  law  in 
his  favor,  which  cancelled  the  original  iudebted- 


ncHM,  an<l  that  the  execution  and  procecdingH 
theremiiler  must  l)e  set  aside. 

Wnlliw  v.  liosMin,  '2  K.  &  C,  410. 
On  <t/i/M(i/  to  I  hi  Sii/inmi:  Court  «/  Canada, 
III  Id,  Strong,  .1.,  (Ussentiiiij,  that  the  rule  or 
order  of  the  Court  l>elow  was  one  from  which  an 
appeal  would  lie. 

•2.  Reversing  the  judgment  below,  that  de- 
fendant having  neglected  to  plead  Ids  disciiarge 
before  judgment,  as  lie  might  have  done,  was 
estopped  from  setting  it  up  afterwards  to  defeat 
the  execution. 

\\'a//ace  v.  lioisnm,  2  .S.  C.  R.,  488. 

41.  Discharge— Suspended  Tor  a  period- 

The  insolv'jiil  iiaving  determined  to  stop  busi- 
ness disposed  of  tiic  stock  of  goods  on  hand  to 
his  daugliter  for  tiie  sum  of  SIOOC*,  who  continued 
the  business  for  the  benefit  of  the  family,  the 
insolvent  assisting  as  clerk.  No  money  was  paid 
by  the  daugliter  for  tiie  goods  at  the  time  of 
purciuvse,  or  subscijuciitly,  nor  was  any  security 
taken,  but  at  tlie  time  of  the  assignment,  about 
a  year  after,  the  insolvent  handed  to  tiio 
assignee  a  note  of  one  A.  for  the  sum  of  Sl'HJO, 
whicli  was  never  paid.  It  was  admitted  ))y  tiie 
insolvent  tiiat  after  he  ceased  to  do  business  lie 
collected  del)ts  due  him,  and  lived  upon  tiiem 
and  paid  nothing  to  his  creditors.  No  inven- 
tory was  taken  or  valuation  made  of  the  goods 
at  the  time  of  the  sale,  Imt  the  insolvent  said 
that  Jie  sum  of  .«il()IK»  was  about  tiieir  value. 
The  Judge  of  Probate  having  granted  a  dis- 
charge with  a  first  class  certificate,  from  which 
the  creditors  appealed, 

Ile/d,  that  tliougii  the  insolvent  might  not 
have  deprived  himself  of  all  right  to  a  discharge, 
under  the  circumstances  it  sliould  be  of  the 
second  class  and  suspended  for  the  period  of 
two  years. 

In  re  Donald  Mathewn,  an  Insolvatt, 
3  N.  S.  U.,  i538. 

42.  Discharge— Traders  -Costs-  T.  A.  and 

J,  A.  made  application  for  a  discharge  in  insol- 
vency under  the  Dominion  Insolvent  Act  of 
1869.  The  principal  objection  taken  to  the  dis- 
charge was  that  the  Act  applied  to  traders  only, 
whereas  the  insolvents  admitted  that  at  the 
time  of  its  passage  they  had  ceased  to  he 
traders.  Before  judgment  the  Act  of  1871  was 
passed,  amending  the  Act  of  1869,  so  as  to  in- 
clude parties  who  having  been  traders  at  the 
time  of  the  passage  of  the  latter  Act  had  since 
ceased  to  trade. 

Held,  that  the  insolvents  come  within  tiie 
latter  Act  and  were  entitled  to  the  discharge, 
but  without  costs,  they  havuig  succeeded  on  a 


681 


INSOLVENCY. 


682 


gnmnil  that  had  no  existenco  when  they  entered  i  entered  up  against  FairlumkH,  an  excoutiim  was 

their  iip]i('al.  isHuud,  under  which  he  waa  arreHted  and  |ilucv(l 

III  n   ThoM.  Archibald  and  John  Archil/aid,    in  ouBtody.    While  ho  waa  in  custody,  and  aft«r 

Iif<olvtiilM,  '2  N.  S.  1).,  303.  I  the   prcHcnt   suit   waa   drought   by   plaintilT  oa 

aaaignue  of  DeWolfe  »%  Co.  against  Fairluinks, 

43.  Discharge  -  Plea  of,  with  protest,  *■"  foreclose  tlie  mortgage,  anil  after  aaid  Fair, 
where  fraud  charged  —  I'laintiflf  hrouglit  an  '""'ks  had  answered,  iiia  estate  waa  placed  in 
action,  February  •-'(Hh,  187(1,  on  two  proniisaory  inaolvency,  and  Creighton,  his  assignee,  infer, 
notes  witii  a  count  for  fraud  under  section  1.1(1  vened  and  beoanio  a  party.  Parker  &  (irant 
of  tiie  Insolvent  Act  of  187.').  Defendant  had  ''Iso  became  jxirtiea  aa  interested  in  the  subject. 
bi'Cdine  insolvent  in  December,    187.'),  and   ob-    matter. 

taiiu'd  fffpui  iiis  creditors  a  deed  of  composition  \  H'I'l,  rtrat,  that  the  inscdvency  of  Fairbanks 
and  <lischarge  which  waa  duly  confirmed  Sep-  'l''l  ""t  prevent  the  plaintiff  from  proceedinjf 
tembcr  Kith,  187(5,  previously  to  which  date  with  the  foreclosure  ;  and  secondly,  that  I'arker 
plaintiff  liad  accepted  a  composition  on  the  notes  &  Grant  had  not  lost  their  lien  on  the  mortgaged 
sued  on  ;  but  plaintiff  liad  not  signed  the  deed,    property  in  consetiuence  <if  their  having  arrested 

Defendant  having  pleaded  March  8th,  1876,    Fairbanks  under  the  judgment, 
added  a  plea  September  '2iM\\,  1878,  setting  up  \    Tucker,  Amynee,  v.  Crtiijhton,  As.iiiinef',  tt  ah, 
the  ileed  and  the  acceptance  of  a  composition,  I  "•  K-  I^m  -61. 

liul  did  not  plead   tiie  discharge  /n(M  ilarrtiu  i 

roiitimtamr,  his  counsel  apprehending  that  the  {      46.     Enlargement  Of  time  for  dOing  Act  — 

ftfect  of  such  a  plea  would  be  to  confess  the  |  Discretion  of  Judge  —  Appeal — At  a  meeting 

fraud  cliarged  in  the  declaration.      The  cause   of    creditors    of    W.    W.     Riukards    an    inaol- 

was  tried  in  April,  1880,  wheii  a  verdict  was    vent   under    the   Insolvent    Act  of   1869,  lield 

found  for  the  plaintiff  for  the  balance  of  the  notes    in  May  1873,  olijections  were  filed  to  the  claim 

sued  on,  but  the  jury  accjuitted  the  defendant  of    of  .Josephs.  Rickards  and  duly  served,  about  two 

the  ciiarge  of  fraud.      Defendant  then  took  a    years  after  wldch  .Joseph  S.  Rickards  himself 

rule  }ii.4  to  stay  the  proceedings  on  the  ground    became  insolvent.     His  assignee  in  1878,  Joseph 

that  the  debt  had  been  discharged.  ,  ,S.  Rickards  iiaving  died  in  the  meantime,  obtain- 

Rule  itisi  discharged  with  costs.  ed  a  rule  granting  him  permission  to  file  answers 

Pi  r  Ritchie,  K.  J,,  to  the  objections  within  fifteen  days  contestant 

//»./(/,  that  the  defendant  could  hax'e  pleaded    to  have  like  time  to  reply. 

the  discliarge  pttin  darn  in   coiiti nuance  with  a       He/d,    that  although  under  the  Act  of  1875, 

simple  protest  that  there  was  no  fraud.  the  Judge  of  the  Insolvent  Court  had  the  dis- 

Harrington  v.   ]Vitttr,  "2  R.  &  <}.,  183  ;  j  cretion  to  grant  an  enlargement  of  the  time  for 

1  C.  L.  T.,  663.  [  filing  answers,  and  could  make  such   an  order 

I  even  after  the  expiration  of  the  three  days  pres- 

44.  niSdUaliflcatlOn  of  Judge- Insolvent  ''"^^'^  ^'y  statute,  in  the  present  case,  in  which 
Act  of  187.".-Undfir  the  Insolvent  Act  of  1875,  Hie  application  was  not  made  until  more  than 
a  creditor  for  an  amount  less  than  §100  cannot  four  ye'irs  after  the  time  when  it  shoul.l  have 
oppose  the  confirmation  of  au  insolvent's  deed  !  l^een  made  to  the  assignee  under  the  Act  of  1869, 
of  composition  and  discharge.  1  the  order  could  not  be  upheld. 

Overruled  in  re  John  Bauer,  3  R.  &  U.,  149.  -^^  >■«  -^"^'"'^  of  Rickardx,  Jt  R.  &  C,  493. 

Weatherlie,  J.  dissenting. 

The  fact  that  the  insolvent  was  second  cousin        ^f^     Filing  seCOnd  Claim   after  receiving 
of  the  Judge's  wife,  held  not  to  discjualify  the    composition— Waiver— Plaintiff's  being  credit- 
Judge  from  dealing  with  the  matter.  |  ors  of  the  defendant,  an  insolvent,  executed  a 
In  re  Creighton,  1  R.  &G.,211.    composition  deed  under   the  provisions  of  the 

I  Insolvent   Act  and   received  their  composition 

45.  Eifect  of  arrest  on  lien  of  Judgment—  j  payable  in  several  instalments,  on  a  claim  tiled 
Parker  &  Grant  having  recovered  a  verdict  |  in  September,  1876,  showing  a  balance  of  S'2. 0.16, 
against  Fairbanks,  a  rule  nini  w-as  taken  out  to  |  after  giving  credit  for  a  "  note  indorsed  by  T. 
set  it  aside.     T.  &  E.  DeWolf  &  Co.   became  '  Coffin."    After  time  for  payment  of  the  compo- 


sureties  to  respond  the  final  judgment,  and  took 
a  mortgage  from  Fairbanks  to  secure  them  from 
loss  on  account  of  their  bond,  and  also  to  secure 
the  amount  of  an  existing  indebtedness.  The 
rule  nt«i  having  been  discharged  and  judgment 


sition  elapsed  plaintiff  filed  a  second  claim 
containing  substantially  the  same  debits,  but 
omitting  the  credit  of  the  note  indorsed  by  T. 
Coffin  &  Co.  The  total  amount  of  the  debits 
in  the  second  claim  was  $2831  from  which  plain- 


68.1 


INSOLVENCY. 


68« 


tiffs  (lodiioted  $'i(».'W,  the  amount  of  tlio  flriit 
cliiini,  leaving  a  luilaiiut!  of  ^'{Kt.  IMiiintitrH 
recovered  a  vonliot  for  tlio  uoinjmHitioii  on  tliiit 
anioniit. 

//</(/,  that  in  tilinj;  tiio  fu-Ht  ohiini  on  which 
the  ( 'otKn  note  wasi  credited,  anil  receiving  a 
conipoxitinn  on  the  chiini  as  tliiw  Hied,  plaintiffM 
had  waived  tlio  ri^ht  to  demand  a  compoHition  i 
on  llicHiim  tiiat  would  have  l)cen  due  if  thuy  had  j 
not  given  credit  for  tlie  Coffin  note. 

Anilerion  e.t  a/,  v,  Snlherhinil  fl  a/., 
.1  H.  &«J.,  .•{•)«; 
3  C.  L.  T.,  43.  : 

48.  Fraudulently  assigned  property  taken 

under  execution —The  language  of  the  InHolvunt 
Delitors'  Act  of  1846,  which  permitted  a  i>Iaintitr 
to  take  under  execution  property  luhHeque.ntly 
tti'i/uir-ed  hy  the  insolvent, 

H'/d,  not  to  restrain  a  plaintiff  from  taking 
under  execution  goods  fraudulently  assigned  l>y 
the  insolvent   previous  to  his  iliscluirge  under  I 
the  Act.  [ 

Falconer  v.  Sairyp.r,  James,  277. 

49.  Funds  Improperly  obtained  by  credi* 

tor  —  Recovery  of— Practice  —  Tlie  insolvent, 
T.  .7.  IJ.,  heing  indebted  to  the  Merchants'  Hank, 
instructed  the  casliier  of  the  Railway  Depart- 
ment by  letter,  dated  Oct.  22,  to  send  to  (!.  M., 
the  cashier  of  the  hank,  any  cheque  coining  to 
him  from  the  Department.  On  Nov.  7  a  ciie(|ue 
for  §091, 7(5,  payable  to  the  order  of  the  insolvent, 
was  enclosed  in  a  letter,  addressed  to  the  insol- 
vent, care  of  Merchants'  IJank.  The  agreement 
between  the  insolvent  and  the  cashier  of  the 
bank,  when  the  letter  was  written,  was,  accord- 
ing to  evidence  of  tlie  former,  that  the  bank 
should  have  .$,S()0  of  the  money,  according  to 
cashier's  evidence,  S3oO.  The  cashier  opened 
the  letter  and  indorsed  the  cheque  "  T.  J.  B., 
per  (1.  M.,  Agent.  For  Merchants'  Bank  of 
Halifax.  Guaranteed,  (i.  M.,  cashier."  The 
writ  of  attachment  against  the  insolvent  was 
issued  January  18,  1879. 

J/ehl,  that  the  cashier  had  no  authority  to 
open  the  letter  or  indorse  the  cheque,  but  that 
the  bank  was  entitled  to  retain  the  $.300  as  agreed 
upon  ;  that  this  amo'.:r.t  could  not  be  recovered 
by  the  assignee  iinder  the  1.30\h  section  of  the 
Act,  which  had  no  reference  tc  a  case  like  this, 
nor  under  the  134th  section,  as  that  was  confined 
to  payments  made  within  thirty  days  of  the 
insolvency. 

Creighton  v.  Merchants'  Bank  of  Halifax, 

R.  E.  D.,  437. 

50.  Insolvent  prevented  fh)m  proceeding 

with  cause  unless  security  given  or  assignee  [ 


intervened  — Plaintiffs  became  insolvent  after 
an  appeal  was  taken  l)y  defendant  to  the  Mu> 
proine  Court  from  the  judgment  of  the  County 
Court,  setting  aside  pleas.  The  Court  granted 
an  order  preventing  the  cause  from  being  pro- 
ceeded with  unless  plaintiffs  should  give  security 
or  the  assignee  should  intervene. 

Evam  et  ul.  v.  Foxfn;  1  R.  &  C,  0. 

51 .  Inspectors  -Duties  and  liabilities  of— 

Section  .'14  of  the  Insolvent  Act  of  ISdO,  pi'ovid- 
ing  that  the  inspectors  shall  superintend  and 
direct  the  assignee  in  the  performance  of  his 
duty  uiuler  the  Act,  Ac,  does  not  render  the 
inspectors  liable  for  the  wrongful  act  of  the 
assignee,  in  the  absence  of  evidence  showing 
that  they  authorized  the  act  complained  of. 
Costs  directed  to  be  paid  out  of  the  estate. 

Jhirket  V.  Cox  et  at.,  3  R.  &  C,  17. 

52.  Judgment  by  confession  to  Indemnity 

against  future  indorsements,  which  were 
afterwards  given— Not  void  as  made  in  con- 
templation of  insolvency — Plaintiff  sought  to 
set  aside  a  judgment  entered  on  a  confession  us 
made  in  contemplation  of  insolvency  ;  but  the 
judgment  creditor  alleged  and  it  appeared  in 
evidence  that  the  confession  was  taken  only  to 
iudenniify  the  judgment  creditor  against  loss  on 
accommodation  indorsements  to  be  thereafter 
given,  which  were  given. 

//e/d,  that  although  the  ju'lgment  debtor  was 
in  insolvent  circumstances  at  the  time  of  giving 
the  confession,  the  judgment  could  not  he 
impeached,  section  89  of  the  Insolvent  Act  .)f 
187.'>,  referring  (nily  to  securities  given  foi  pre- 
existing debts  or  liabilities. 

Kinney  v.  liyir.ion  et  a/.,  R.  E.  I).,  488. 

53.  Judgment  creditor  flling  claim  for 

whole  amount  of  judgment  without  putting 
a  value  upon  it  abandons  his  security  — 
Crowe,  as  judgment  creditor  of  the  insolvent 
McLellan,  filed  a  claim  for  the  full  amount  of 
his  judgment,  stating  that  he  held  such  judg- 
ment as  security,  but  could  give  no  estimate  of 
its  value,  and  ranked  on  the  insolvent  estate  for 
the  full  amount  of  the  judgment.  Previous  to 
the  insolvency  he  had  assigned  the  judgment  to 
McDonald  and  Witt,  who  acted  as  his  solicitors 
in  the  filing  of  the  claim. 

Held,  that  by  claiming  for  the  whole  amount 
of  the  judgment  without  putting  a  value  upon 
it  as  required  by  section  60  of  the  Act,  Crowe 
had  practically  abandoned  his  security,  and 
McD.  and  W.  could  not  succeed  in  the  present 
application,  which  was  for  surplus  proceeds  on 
foreclosure  and  sale. 

Sherlock  v.  McLellan,  R.  E.  D.,  165. 


6H5 


INSOLVENCY. 


686 


34.  Jodxment  obtained  »dTenely  and  re* 

corded  -  Not  doitroyed  by  Insolvent  Act, 
although  obtained  and  recorded  within  thirty 
days  of  ftHsignment  -The  usuignuo  of  nii  iiiHul- 
vent  olitaint'it  an  order  niii  from  a  Hiiiglu  iJintgu, 
retiinialilo  before  tlie  Court  in  hanco,  to  Hut 
aMiik-  a  jiulgnivnt  obtainuil  ugaiiiHt  the  inHol- 
vi'iit,  not  l)y  confoBHion  but  udvurHely,  on  the 
(itii  April,  \H~'2,  and  regJHtereil  on  tiio  Hunio 
day.  On  the  20th  April,  IH7'2,  fourteen  days 
(ift'.T  tlio  judgment  defendant  made  tiio  assign- 
mi'nt.  On  tiie  .'Ird  May,  1872,  one  Han-ey  was 
duly  appointed  creditors'  assignee, 

//</(/,  that  the  Insolvent  Act  did  iu)t  destroy 
tlie  preference  obtained  by  a  hona_lide  judgment 
tri'ditor  whose  judgment  had  been  recorded 
lii'fiirc  attachment  or  assignment. 

(Quaere,  whether  the  assignee  could  intervene 

in  a  cause  after  judgment  in  this  ortlinary  way. 

Munlork  V.    ira/.sA,      Unri-portnl. 

5.1.  Meeting  of  creditors  -Judge  no  power 

to  onler  to  be  held  out  of  his  jurisdiction  — 
Wliure  tile  Judge  of  the  County  Court  for  Dis- 
trict No.  '2,  Lunenl)urg,  Ac,  passed  two  orders, 
one  for  postponing  a  meeting  of  creditors  called 
tn  consider  an  offer  of  composition,  and  ordering 
the  assignee  to  retain  the  estate  until  discharge 
applied  for,  and  the  otlier  ordering  a  meeting  to 
be  held  at  Halifax,  tlie  Court,  holding  that  the 
Judge  could  not  order  sucli  meeting  out  of  his 
o\Mi  jurisdiction,  set  aside  both  orders,  as  botii 
liiul  a  connnon  object,  and  directed  the  costs  of 
tiie  appeal  to  be  paid  out  of  the  estate. 

In  re  Sutherland,  3  R.  &  C,  89. 

56.  Honey  paid  on  promissory  note  with 

forged  indorsement — (irahani,  tlie  active  mem- 
lii-r  of  tiie  insolvent  tirm,  made  a  number  of 
pioniissory  notes  in  the  firm  name  in  favour  of 
one  Tiiomas  Fraser,  by  wliom  the  notes  pur- 
ported to  be  indorsed,  but  tiie  indorsements 
Were  all  of  them  forged.  The  notes  were  pre- 
sented to  the  claimants  and  negotiated  by  (ira- 
hani, wlio  received  the  money  on  them,  anil  a 
large  part  of  the  proceeds  was  appropriated  to 
partnership  purposes. 

Hftd,  that,  although  the  Bank  could  not 
claim  on  the  notes,  it  could  rank  for  the  amount 
of  them  as  money  paid. 

In  the  Matter  of  Graham  cfc  McKay,  Insolvents, 
and  Ike  Bank  of  Nova  Scotia,  Claimants, 

3R.  &C.,251. 

57.  Mortgage  made  in  contemplation  of 

insolvency— By  whom  and  how  to  be  attack- 
ed—Defendants, being  added  parties,  resisted  a 
proceeding  taken  by  plaintiff,  as  assignee  of  a 
mortgage,  to  foreclose  the  same,  on  the  ground 


j  that  the  mortgage  wai  made  in  contemiilation 
of  insolvency,  and  was  void  under  the  Insolvent 
Act,  the  mortgagee  having  afterwards  become 
insolvent  and  assigned  umler  the  Act. 

Ilfld,  that  defendants,  seeking  as  creditors 
of  tiie  insolvent,  to  impeach  the  mortgage,  solely 
on  tlie  ground  that  it  was  in  contravention  of 

I  the  Insolvent  Act,  should  have  called  on  the 
assignee  to  take  proceedings  to  set  it  asiile,  and 
upon  his  refusal,  should  have  applied  to  the 
Judge  for  leave  to  proceed  in  his  name,  and, 
further,  that  defendants  should  have  proved  their 
claims  in  order  to  entitle  them  so  to  proceed. 

Quaere,  whether  the  defendants  could  contest 
the  validity  of  the  mortgage  at  all,  without 
bringing  a  cross  action. 

Grant  v.   Wheeler  rt  al.,  R.  K.  1).,  388. 

58.     Mortgage  made  In  contemplation 

of  insolvency  void  —  The  Messrs.  I'ryor,  in 
I)eceml)er,  1873,  of  their  own  accord,  signed  and 
sealed  a  mortgage,  wliereby  defendant  was  to 
bo  secured  from  loss  on  indorsements  of  their 
paper  ;  but  defendant  did  not  become  aware  that 
such  a  mortgage  had  been  made  until  scmie  time 
in  1874,  and  his  information  then  was  not  derived 
from  Messrs.  I'ryor,  or  any  person  authorized 
by  them.  The  mortgage  was  not  recorded  until 
Marcli  20,  187'),  when  the  Messrs.  Pryor  knew 
they  woulil  have  to  go  into  bankruptcy,  and  on 
.March  22,  1875,  they  made  an  assignment  under 
the  Insolvent  Act  of  1809. 

Held,  that  the  mortgage  was  void,  being 
made  in  contemplation  of  insolvency. 

Lordly,  Assignee  of  Pryor,  v.  Ytomans, 

R.  E.  D.,  113. 

I    59.    Motion  In  Supreme  Court  to  set  aside 

proceedings  in  Insolvent  Court — No  certiorari 

— Coram  nonjudire — An  order  jiMi' was  obtained 
from  a  Judge  of  the  Supreme  Court  to  set  aside 
a  writ  of  attachment  in  a  suit  depending  in  the 
Insolvent  Court.  No  certiorari  or  other  pro- 
ceeding had  issued  to  bring  the  cause  up  to  the 
Supreme  Court. 

Held,  that  the  proceeding  was  coratri  noit 
judice.     The  rule  nisi  was  discharged. 

Silver  et  al.  v.  Petitmaiire,  2  N.  S.  D.,  5.51. 

60.  \otlce  of  meeting  to  appoint  creditors' 

assignee  — 

Held,  that  where  the  notice  was  published  in 
"Gazette"  of  the  19th,  and  the  meeting  at 
which  creditors'  assignee  was  appointed  was 
held  on  the  29th,  the  appointment  was  irregular 
and  invalid,  "at  least  ten  days'  notice"  being 
required  by  the  Statute. 
Parker,  Assignee,  v.  Kenny etal.,  5  R.  &  G.,  457. 

AflSrmed  on  appeal  to  the  Privy  Council. 


687 


INSOLVENCY. 


m 


•1.   Penalty   Action  tor  undrr  ler.  tM 

fiffil,  uniicccMMury  to  iillcHi'  in  |iriK'«H'iliiig  for 
a  [M>niilty  umlur  Hci'tioii  O'J  oi'  the  Iimolvt'iit  Act 
(if  IHKO,  and  nuction  \'M\  of  tliii  IiiMolvoiit  Ai't  of 
|N7.'^,  thiil  thu  (lofuiulant  wai  innolvuiit  witliiii 
the  mciiniiii;  of  the  Act. 

J/arriiiylon  v.  W'itlir.,  '2  R.  &  ('.,  34'J. 

6*i.    Pledfce  or  lien  xlven  In  eontemplntlon 

of  innolvency-  .(.  T.  F.  *  Co,,  licing  imlclili'il 
to  the  phiintifT,  gave,  aH  i-olhitcral  nvcurity  a 
mortgage  which  they  were  to  reci.'ive  on  a  ven«cl, 
being  liuilt  liy  McK.  &  V'.,  liehtors  of  thcirM, 
in  P.  K.  iHlanil.  The  amingenient  was  iimde 
October  19,  1H7.">,  and  <in  llie  same  ihiy  .1.  'I'.  K, 
&  Co,  wrote  to  plaintitrH,  enclosing  a  draft  on 
H.  iS[  (,"o.,  Liverjiool,  at  ninety  dayM,  for  i'l,(HH», 
itating  that  tlie  sanu'  wiih  drawn  againnt  jjrocceiJH 
of  the  veHsel,  whi-.'h  was  to  be  (told  in  Liverpool, 
(>.  B.,  liy  H.  k  Co.,  and  conclmling :  "The 
above  veK«el  is  herewitli  pledged  to  you  for  the 
due  payment  of  said  Uill  of  Kxcliange,  aH  well 
as  for  payment  of  the  oldigations  of  McK.  &  V." 
J.  T.  F.  &  Co.  then  proceeded  lol'rince  Kdward 
Island,  to  obtain  the  mortgage  ;  but  previous  to 
its  being  delivered  to  |>laintiHfs,  they  had  on  the 
I'ith  Xovcnd>t:r,  caused  a  demand  of  assignment 
to  be  served  (m  .].  T.  F.  &  Co.,  and  the  plaintiff's 
manager,  when  the  mort^'age  was  afterwards 
tendered  to  him  said  it  should  have  been  made 
to  the  Iknk,  instead  of  to  J.  T.  F.  &  Co.,  and 
handed  it  back  to  J.  T.  F.,  who  gave  it  to  the 
assignee.  On  the  loth  Novend)er,  J.  T.  F.  & 
Co.  made  an  assignment  under  the  Insolvent 
Act,  and  on  the  '27th  Xovember,  the  bill  of 
exdiange  for  ,t'l,()0<)  was  presented  I'nd  dis- 
honored. The  vessel  was  sold  for  moi'e  than 
£l,CiOO,  by  the  assignee,  who  retained  the  pro- 
ceeds. Plaintiff  claiming  to  have  an  ecjuitable 
lien  <m  the  mortgage  for  the  amount  of  the  bill 
of  exchange,  and  of  an  unpaid  note  of  McK.  & 
v.,  indorsed  by  J.  T.  F.  &  Co., 

Held,  that  although,  if  the  proceedings  were 
between  the  plaintiff  and  J.  T.  F.  &  Co.,  alone, 
the  latter  might  be  eato])ped  from  resisting  the 
claim  of  the  plaintiff,  on  the  ground  that  they 
had  no  title  to  the  vessel  at  the  time  they  pledg- 
ed her  ;  yet,  under  the  provisions  of  the  Insol- 
vent Act  of  1875,  sec.  118,  the  pledge  or  lien,  if 
it  could  otherwise  have  been  effective,  was  ren- 
dered null  and  void,  a  demand  of  assignment, 
followed  by  an  assignment,  having  been  served 
within  thirty  days  after  the  pledge  was  given, 
and  the  plaintiff,  upon  whom  the  burden  of 
proof  lay  under  that  section,  not  having  shown 
that  the  pledge  had  not  been  made  in  contemp- 
lation of  insolvency. 
Bank  of  B.  X.  America  v.  Worrall,  R.  E,  D.,  12. 


(M.   Practice   Jurisdiction    ConmliiHoncr 

a]i]Miinled  by  the  Insolvent  Court  -  Who  I'on. 
sidereil  nuch.-  A  writ  of  attachment  under  tlio 
Insolvent  Act  of  IN(ll)  having  been  iNsued  at 
the  intlanco  of  plaintitf  agaiuHt  defendant,  tliu 
latter,  tliree  days  liefore  llm  return  day  of  thn 
writ,  procured  a  rule  nini  to  net  the  uttachmeut, 
the  writ  and  other  proceedings  thereon,  aHido. 
The  rule  was  taken,  among  other  thingH,  on 
reailing  tlie  allidavit  of  defendant  sworn  before 
William  Aikins,  di'^dgmited  as  a  t'otinniHsioiicr 
for  taking  allidavitH  to  be  uited  in  the  .Suprcinu 
CoiU't,  County  of  Coli'lu'Mter,  and  the  allidavit 
of  ,Jose|)h  .Norman  Kitchie,  sworn  at  Halifax, 
l)efore  C.  .M.  N'utting,  designated  as  a  coin- 
miHsioner  of  .Supreme  Court,  County  of  Halifax. 
The  rule  having  been  made  absolute,  setting  the 
attachment  aside,  plaintitf  a])pealed  on  tint 
I  grouml  among  others,  tli.it  the  .ludge  in  IumiI- 
I  ve!icy  had  no  jurisdiction  to  make  the  oidtr 
that  Mie  atfidavits  were  improperly  sworn,  being 
rcquireil  by  the  Act  to  be  sworn  by  olhcers  ap. 
poiiiteil  by  the  court,  and  that  defendant  s  peti- 
I  tion  to  set  aside  the  w  rit  was  prenuiture,  in  iieing 
presented  before  the  return  day  of  the  writ. 

//»/(/,  1st.  That  the  Judge  possessed  juris- 
diction under  section  •_'(»  of  the  Act  which  em- 
powers him  to  entertain  a  jietitiou  to  set  aiida 
the  writ  under  the  provisions  of  section  26. 

'2nd.  That  from  the  mere  fact  of  the  com- 
missionei's  acting,  there  was  a  presumption  in 
favor  of  their  authority  which  must  btand,  mitil 
destroyed  by  evidence  sulficient  to  annihilate  it. 

3rd.  That  it  was  left  by  the  Act  in  the  dis- 
cretion of  the  party  petitioning,  whether  he 
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,  hilt  not  ajttrirard.i."  Dom.  Acts,  iSliit, 
c.  16,  .S.  '26. 

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

The  Act  providing  that  the  petition  is  to  he 
heard  and  determined  in  asumnuiry  manner,  "it 
is  for  the  learnejd  Judge  to  decide  what  that 
summary  manner  of  hearing  shall  be,  and  as 
regards  the  nature  and  effect  of  the  evidence  l)y 
which  his  determination  is  to  be  governed,  pro- 
vided it  be  legal  and  sufficient  evidence." 

The  learned  Juilge  having  proceeded  by  order 
7im, 

Held,  that  the  course  was  perfectly  unobjec- 
tionable, whether  viewed  in  regard  to  the  dis- 
cretion 80  exercised,  or  to  the  nature  of  tlie 
mode  of  proceeding  itself. 

A  commissioner  who  is  in  practice  and  law- 
fully recognized  by  the  Court  (as  would  be 
Aikins  or  Nutting)  as  an  officer  legally  exercis- 


0.s<J 


INSOLVENCY. 


(190 


ini;  1  liiiiL'tion  hh  iniiH)rtuiit,  Im  within  tliu  inciiii- 
i.f  the  woriU  (if  H"cti<in  I'JH,  "A  ('(•iiiiiiiiiiiiiiiii'r 
iipiMPJiiti'il  liy  till'  ('(iiirt." 

tMii>i  V.  riirnnnn,  '2  N.  S.  I).,  M8.  ! 

A4.   I'roof  by  partner  axalnNt  Mpparate 

fBtftte  of  co-partner  L'mUr  tliu  IiihoIvi'IiI  Act 
(if  IhT.'i,  Nfrtiim  HO,  uH  iiiiih'r  thu  i'iit'i'i'H))(iiiiliii^' 
|iriiviHiiiriN  (if  till!  Knt^liHli  A'.'t,  ii  dtOit  iliiu  liy  onv 
partrn'r  ill  ii  Hriii  to  his  co-purtnerH  I'liii  |ir(i|i('i'ly 
1)0  iirovcil  ii(.';iiiiiHt  tlio  H('|iiinttu  iHtiito  (if  the 
(li!it<ir  iiH  Kddii  an  the  joint  di^lifH  of  tiii'  piirtniT- 
ship  hiivu  buen  iliachartjcil, 
M,idii>i(i.^h  V.  Aliiwii  ii  ill,  Vt  H.  k  (i.,  41IS ;  j 

(15.   Beplevin  againHt  asHlgnee  In  Insol' 

vency  •  SfL'tion  I'.'.')  of  tlie  Insolvent  Act  of 
I'-iT'i  ildi's  not  pi'ov(!iit  nil  ai'tion  of  replevin 
(lyiiinst  an  asnij;iieu  in  insolvency  to  recover  poa- 
8t'8iiioii  of  ^'oodo  conveyed  under  a  lull  of  muIo.  , 
The  suiniiiary  proceedings  therein  provided  for  | 
;irt'  iilili;,'atory  only  in  the  case  of  duties  devi.lv- 
i;,g  (III  the  iissiyiiee  by  virtue  of  the  Act.  j 

PiiHo  V.  (lantzn  tt  nl,  0  R.  *  (J.,  487. 

66.  KesldenCC  — Proof  of-  AdmlDmlonS- 
riiiiMtillasassignee  under  the  Insolvent  Act  of 
IMi9  liroiight  action  to  recover  iJTfH*  paid  within 
tliiity  days  of  the  iiHsignment  liy  one  Hamilton 
t(i  the  (k'feinliints  on  a  judgment  entered  up  at 
till!  yiiit  of  defendants  shortly  before  the  assign- , 
meiit,  Imt  not  recorded  because  as  the  defendants 
siiiil  it  would  injure  Hamilton's  credit.  The 
jury  found  in  answer  to  questicms  pu»,  to  them 
tlml  the  payment  had  been  made  wii'iin  the 
tliirty  days,  that  Hamilton  was  then  una'de  to 
iiic'ct  his  engagements  in  full  and  that  defendi.nls 
hud  pniliable  reason  for  believing  him  to  be  b.> 
iinalile  and  they  found  for  plaintiff  without 
s|itcifying  any  sum.  Objections  having  been  j 
taken  to  the  verdict  by  rule  yiini, 

Ihid,  that  the  distinction  of  Hamilton  in  the  i 
original  writ  in  evidence  as  "of  Bedford  in  the  ! 
County  of  Halifax"  was  evidence  of  Hamilton's 
residence  being  outside  of  the  City,  that  the  oral  i 
answers  of  defendant  before  a  commissionerunder  j 
an  order  of  the  Court  were  properly  received 
against  him  as  admissions  although  the  inter-  j 
rogations  and  prior  examinations  were  not  ten-  i 
(lered  and  that  the  payment,  although  made  on  i 
judgment  was  within  the  terms  of  the  act.  I 

Cochran  v,  Chipman  et  al.,2B,.  &C.,  254. 

67.  Salary  and  wages— Special  prlTlIeee 

-Under  sec.  67  of  the  Insolvent  Act  of  1869 
and  section  91  of  the  Insolvent  Act  of  1876, 
Held,  that  a  clerk  and  two  employees  who  had 


left  or  been  diiniiiicd  from  the  service  of  an 
insolvent,  sixteen,  twenty-one,  end  thirty  tivo 
nioiitliN,  reM]iectively,  before  hiiussignment  could 
not  be  collocated  on  the  dividend  Hliit't  by 
special  ]>rivilegi)  for  arrears  of  salary  and  wages. 
Ill  rt  Kxtdti  of  Milchtll,  IiiKolrml, 

'JR.  *C..:<79. 

OH.    Shipping     Innolvcncy  of  ownem  of 

ship  as  affecting  the  maHier  The  insolvency  of 
the  owiicrs  does  not  i/Mi/iuio  put  an  end  to  the 
functions  of  tiie  master.  He  must  be  dismissed 
by  their  assignee. 

The  Jiun  Aiidn-iiOii,  Y.  A.  1).,  'J44. 

00.  Trader,  definition  of,  under  Insolvent 

Acts  of  1H76— An  action  of  trcsjiass  was  bnuight 
liy  ])laintitf  as  assignee  of  L.  ['.  Fairbanks  iiiider 
the  Insolven*  Act  of  187.").  Defendants  pleaded 
denying  plaiiitiHf  's  possession  and  title  and  deny- 
ing that  the  |ilaintilf  was  aasignee.as  alleged.  It 
appeared  tliat  the  business  of  the  ins(dvelit  had 
reference  only  to  the  canal  property,  of  which  ho 
had  been  the  owner,  and  although  on  cross- 
examination  the  plaintitr  stated  that  Fairbanks 
had  bought  and  sold  all  sorts  of  thiiig.<4,  and  had 
bought  oats,  wood,  and  iron,  he  added  that  there 
were  no  assets  of  that  kind  ;  that  Fairbanks  liad 
handed  him  no  books  of  account,  books  of  busi- 
ness, or  cash  book,  and  that  his  books  had  refer- 
erence  wholly  to  the  canal  property. 

J/i/(l,  that  Fairbanks  was  not  a  trader  within 
the  meaning  of  the  Insolvent  Act,  and  Cieighton 
was  not  his  lawful  assignee,  and  therefore  had 
no  title  to  the  land  ;  that  this  defence  had  been 
sufficiently  pleaded,  and  that  section  144  of  the 
Insolvent  Act  niakit.g  the  a8signiinmt/»-i»irt/a('(e 
evidence  of  the  regularity  of  all  proceedings  did 
not  apply,  as  the  (juestion  was  not  merely  as  to 
;lie  regularity  of  the  proceedings. 

CrdijhtoH,  Aitiijnee,  v.  Chittick  >>  ul., 

•_'R.  &(i.,90; 
1  C.  L.  T.,  568. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  Henry,  J.,  dixnentimj,  that  by  traversing 
the  allegation  of  plaintiff  being  assignee,  the 
defendants  put  in  issue  the  facts  implied  in  the 
averment  that  the  plaintiff  was  assignee  in 
insolvency,  and  that  F.  was  a  trader  within  the 
meaning  of  the  Insolvent  Act  of  1869,  and  as 
the  evidence  did  not  establish  that  F.  bought  or 
sold  in  the  course  of  any  trade  or  business  or  got 
his  livelihood  by  buying  and  selling,  that  the 
plaintiff  had  failed  to  prove  this  issue. 

Per  G  Wynne,  J. — Assuming  F.  to  be  a 
trader,  still  the  defendants  were  entitled  to 
judgment  upon  the  merits  which  had  been  argued 


691 


INSURANCE.  FIRE. 


692 


at  length.  That  the  agreement  at  nixi  priw  to 
the  effect  that  a  verdict  should  be  entered  for 
the  plaintiff  with  .?10  damages,  subject  to  the 
opinion  of  the  Court,  that  the  parties  should  be 
entitled  to  take  all  objections  arising  out  of  the 
evidence  and  minutes,  and  that  the  Court  should 
have  power  to  enter  judgment  for  or  against  the 
defendants  with  costs  authorized  the  Court  to 
render  a  verdict  for  plaintiff  or  defendants, 
according  as  they  should  consider  either  party 
upon  the  law  and  the  facts  entitled ;  that  the 
Court,  having  exercised  the  jurisdiction  con- 
ferred upon  it  by  this  agreement,  and  rendered 
judgment  for  the  defendants,  this  Court  was  also 
bound  to  give  judgment  on  the  merits,  and  as 
judgment  of  the  Court  below  in  favor  of  the 
defendants  was  substantially  correct  to  sustain 
it ;  and  it  having  been  objected  that  as  the  rule 
nixi  asked  for  a  new  trial,  the  rule  absolute  in 
favor  of  defendants  was  erroneous,  that  such  an 
objection  was  too  technical  to  be  allowed  to  pre- 
vail, and  that  the  rule  nid  having,  as  it  did, 
recited  the  agreement  at  nt.se  priiw,  and  the  Court 
below  having  rendered  a  verdict  for  tlie  defen- 
dants, it  should  be  upheld,  except  as  to  tlie  plea 
of  liberum  tenementum,  which  should  be  found 
for  the  plaintiff  or  struck  off  the  record  and  that 
to  order  a  new  trial  could  be  but  to  protract  a 
useless  litigation  at  great  expense. 

Crei</hton  \.  Chittick,  7  S.  ('.  R.,  348  ; 
2C.  L.  T.,248. 

70.    Transfer  witbin  thirty  days  in  con> 

templation  of  insolvency — Fraudulent  prefer- 
ence under  sec.  1.33 — Merchants  Shipping  Act, 
1854  —  r.,  a  ship  owner  in  Yarmouth,  N.  S., 
employed  as  his  agents  in  Liverpool,  J.  &  Co., 
the  defendant  J.  being  a  member  of  their  firm, 
and,  as  agents  in  New  York,  he  employed  the 
firm  of  S.  P.  B.,  of  which  the  defendant  S.  was 
a  member.  In  the  course  of  iiis  dealings  with 
these  agents  he  l)ecame  indebted  to  both  firms 
tor  acceptances  by  them  of  his  drafts  made  wlien 
he  was  in  want  of  money,  towards  the  payment 
of  which  they  received  the  freights  of  his  vessels 
and  remittances  in  money.  On  one  occasion  he 
said  that  he  would  give  to  the  Liverpool  firm  a 
mortgage  on  the  "  Tsernogora  "  or  the  "Mag- 
nolia," when  they  should  require  it,  and,  m  a 
subsequent  conversation  with  a  member  of  the 
firm,  he  agreed  to  give  such  mortgages  on  cer- 
tain conditions,  which  were  not  carried  out.  He 
also  promised  the  fivm  in  New  York  to  give  them 
security  "in  case  anything  happened,"  and 
mentioned  as  such  security  a  mortgage  on  the 
' '  Tsernogora. "  According  to  F.  's  own  statement, 
he  had  sutfioient  property  to  pay  his  liabilities 
when  these  conversations  took  place.  A  few 
weeks  after  these  conversations  F.  executed  a 


mortgage  of  20/64  shares  of  the  "  Tsernogora," 
in  favor  of  the  defendants  J.  &  S.,  and  had  the 
same  recorded,  and  within  thirty  days  thereafter 
a  writ  of  attachment  in  insolvency  was  issued 
agamst  him.  The  plaintiff,  who  was  appointed 
assignee  of  F.'s  estate  by  his  creditors,  tiled  a 
bill  to  have  the  mortgage  set  aside,  claiming  that 
it  was  void  under  section  13.S  of  tlie  Insolvent 
Act  of  1875.  The  defendant  J.  did  not  answer 
the  plaintiff's  bill,  and  the  other  defcnilanta 
denied  that  the  mortgage  was  made  in  contem- 
plation of  insolvency,  and  also  claimed  that,  a3 
it  was  made  under  the  provisions  of  "  Tlie  Mer- 
chants Shipping  Act "  (Imperial),  it  was  not 
affected  by  the  "Insolvent  Act  of  1875."  Tlit; 
Judge  in  Etiuity,  before  whom  the  cause  was 
heard,  made  a  decree  in  favor  of  the  plaintiff, 
and  ordered  the  mortgage  to  be  set  aside. 

On  appeal  to  the  Supreme  Court  of  Xoia 
Scotia, 

Held,  that  the  provisions  of  the  Insolvent  Act 
of  1875,  with  respect  to  conveyances  made  in 
contemplation  of  insolvency,  apply  to  mortgages 
on  ships,  notwithstanding  the  provisions  of  the 
Merchants  Shipping  Act  as  to  such  mortgages, 
and  the  provisions  of  the  said  Act  and  the  Im- 
perial Act  to  remove  doubts  as  to  the  validity 
of  Colonial  laws. 

Weatherbe,  J.,  dissenting. 
Kinney,  Axxiijuee,  v.  Jonex  et  al.,  5  R.  &  G.,  244. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  affirming  the  judgment  below,  Henry, 
J.,  dixxenting,  that  the  promise  to  give  security 
"in  case  anything  should  happen,"  could  only 
mean  "  in  case  the  party  should  go  into  insol- 
vency," and  that  the  transfer  was  void  under 
section  133  of  the  Insolvent  Act  of  1875. 

Held,  alxo,  that  the  provisions  of  the  Mer- 
chants Shipping  Act,  did  not  prevent  tlie  pro- 
perty in  the  ship  passing  to  the  assignee  under 
the  Insolvent  Act. 

Jonex  v.  Kinney,  II  S.  C.  R.,  708. 

i    71.    Voluntary  conreyance,  by  whom  to 

be  impeached— A  proved  creditor  alone  can 
impeach  a  voluntary  conveyance  as  fraudulent 
against  creditors,  though,  when  it  is  so  avoided, 
it  is  avoided  for  the  benefit  of  all  creditors.  Tlie 
creditor  must  put  himself  in  a  position  to  com- 
plain by  obtaining  judgment  for  his  detit,  and 
showing  that  by  the  settlement  he  is  defrauded. 
Clarke  v.  Fulkrton,  2  N.  S.  D.,  348. 


INSVBANCE,  FIBB. 

1.    Agency— Proof  of— Notice  of  loss - 

Waiver  of  condition— H.  P.  represented  him- 


€93 


INSURANCE,  FIRE. 


G94 


self  tq  be  the  agent  of  tlie  defendant  company,  i  further  that  the  condition  as  to   payment  of 

employing    sub-agents,   effecting    policies,   and    renewal  premiums  was  never  attended  to,  and  on 

paying  losses  in  their  name,  and  it  was  stated    the  previous  renewal  of  this  policy  the  premium 

by  one  of  the  professed  sub-agents  of  the  com- 1  had  Ixsen  accepted  after  the  commencement  of 

puny  that  H.  P.  was  tlie  agent.     This  was  not    the  term. 

iiontradieted  by  the  alleged  agent  whose  evidence  j      Held,  that   the  contract  for    insurance  was 

was  read  at  the  trial,  and  who  admitted  that  he  I  valid,  the  condition  having  been  waived. 

hml  acted  as  agent  of  the  company,  and  had  sent       The  Court  will,  on  the  argument,  be  governed 


the  preliminary  proofs  in  this  case  to  the  com- 
pany. 

Hfhl,  that  this  was  sufficient  proof  of  agency. 

The  sixth  condition  of  the  policy  required  the 

insured  to  give  notice  of  loss  in  writing  forth- 


as  to  the  pleadings  by  the  issue  used  at  the  trial. 
Peppit  v.  North  British  <t-  Afercanfik 

Iiix.  Co.,  1  R.  &  G.,  219. 

2.    Agent,  sub- Authority  of— A  sub-agent 

with  to  tlie  agent  of  the  corporation  at  his  office  i  "^  »•  Fire  Insurance  Company  has  an  implied 
in  Halifax,  and  to  furnish  preliminary  proof  to  authority  in  the  absence  of  notice  to  the  contrary 
the  corporation  in  fifteen  days.  The  fire  took  to  receive  renewal  premiums,  such  a  power  being 
place  January  17th.  Plaintiff  residing  at ;  indispensable  to  the  carrying  on  of  the  business. 
Sydney,  C.  IJ.,  where  the  insured  property  was  ^  sub-agent  having  received  a  renewal  pre- 
situated,  went  on  the  ne.xt  day  to  the  sub-  !  ir.ium  and  given  a  receipt  therefor,  but  acci- 
agents,  who  sent  a  telegram  to  the  agent,  and  on  dentally  omitted  to  remit  the  premium  and 
January  23rd  plaintiff  sent  the  agent  a  written  notify  the  general  agent  and  the  premises  having 
notice,  which  he  received  January  '27th.  The  ''^en  subse((Ufjntly  destroyed  by  fire, 
preliminary  proofs  were  prepareil  by  the  sub-        Hefd,  that  the  insured  was  entitled  to  recover. 

Home  ct  Colonial  A'i'<nra7ice  Co., 
2N.  S.  D.,'204. 


Gardner 


3.    Condition  as  to  occupation  of  premises 

Over-valuation,    fraudulent  —  Plaintiffs   ob- 


agents  January  S-ind,  and  received  by  the  agent 
''  early  in  February,"  the  agent  could  not  tell , 
tlie  exact  date.  | 

Held,  that  the  notice  of  loss  was  sufficient,  ' 
and  that  the  jury  might  fairly  presume  that  the 

preliminary  proof  had  been  sent  in  within  the  tained  §5,000  insurance  on  a  mill  and  machinery 
fifteen  days  which  did  not  expire  until  Febru-  '  from  defendant  Company  in  addition  to  §4,000 
^'^  "-"'^-  !  insured   in    another  office.      In   a   letter   from 

The  fourth  condition  provided  that  no  insur-  !  plaintiffs  to  ttieir  agents  in  Halifax,  they  des- 
ance  sliould  be  considered  in  force  until  the  i  cribed  the  mill  and  machinery  as  a  good  risk  for 
premium  was  actually  paid,  and  that  insurance  '  §10,000  (for  which  they  were  then  instructing 
should  expire  unless  the  premium  was  paid  on  |  them  to  insure)  and  estimated  that  the  property 
or  before  the  commencement  of  the  succeeding  1  could  not  be  replaced  for  SIS.OOO,  although  they 
term.  The  renewal  premium  was  not  actually  had  purchased  it  from  a  bankrupt  estate  for 
paid  until  some  days  after  the  commencement  of  .^.^..^OO.  Plaintiffs'  witnesses  valued  the  property 
the  term,  which  was  from  January  1st,  1875,  to  ;  variously  from  §12,000  to  §20,000  and  defendants 
January,  1st,  1870,  but  in  December,  1874,  a  |  called  no  witnesses  as  to  the  value. 
post  card  was  sent  to  plaintiff  by  the  sub-agent  j  Held,  that  the  verdict  for  plaintiffs  coulil  not 
at  Sydney,  reminding  him  that  his  policy  would  be  disturbed  under  this  evidence  on  the  ground 
expire  January  1st,  and  adding  "  If  you  wish  it  |  of  a  "  false  and  frau<lulent  representation,  that 
renewed  please  notify  us  on  or  before  that  day.'"  j  the  property  insured  was  worth  §15,000  when 
Plaintiff  notified  them  that  he  wished  it  renewed  its  real  value  was  much  less." 
and  received  from  them  a  letter  dated  January,  |  One  of  the  conditions  of  the  policy  required 
18M,statingthatthepolicywasmarked  renewed,  i  the  application  to  state  by  whom  the  property 
Tlie  letter,  with  the  exception  of  the  date  and  |  was  occupied,  and  whether  any  manufacturing 
number  of  the  policy,  was  in  print,  showing  a  '  was  carried  on  within  or  about  it,  and  plaintiffs 
custom  of  the  office  thus  to  mark  policies  re-  |  had  described  it  as  a  frame  building  occupied  as 
newed  before  payment  of  renewal  premiums,  and  j  a  water-power  saw-mill.  It  had  been  built  about 
one  of  the  firm  of  sub-agents  at  Sydney  swore    1870,  and  worked  for  about  four  months  in  every 

year  for  three  years,  from  which  time  until  it  was 
purchased  by  plaintiffs,  in  December,  1877,  it  ap- 
peared to  have  been  unoccupied  and  unused  as  a 
mill.  When  plaintiffs  purchased  they  im- 
mediately went  into  possession  and  put  their 
servants  in  charge ;  but  the  mill  could  not  at 


that  audi  a  practice  had  been  recognized  by  the 
agent  at  Halifax,  and  that  renewals  so  effected 
•were  understood  to  stand  subject  to  the  agent's 
disapproval,  the  sub-agents  charging  themselves 
^'th  the  amount  of  the  premium  in  account 
with  the  agent  at  Halifax.     This  witnoss  stated 


695 


INSURANCE.  FIRE. 


696 


that  season  be  worked  for  want  of  water  even  if 
it  had  been  in  working  order.  Soon  after  pur- 
chasing they  set  about  repaii  ing  the  dam,  which, 
when  finished  in  April,  1878,  was  carried  away 
by  a  fresliet,  after, which  plaintiffs  proceeded  to 
build  another  <lam,  abandoning  the  idea  oi 
working  the  mill  until  the  increase  of  water  in 
the  autumn.  The  mill  was  destroyed  by  fire  in 
July,  1878.  A  furtlier  condition  rendered  the 
policy  void  for  misrepresentation  or  concealment 
touching  the  risk. 


5.    Condition -Breach  of-PiaintlflT  took 

out  a  policy  of  insurance  against  fire,  containing 
among  others,  the  following  conditions  ;  that  the 
company  should  not  be  liable  to  make  goo<l  any 
loss  or  damage  if  the  property  insured  shoidd  be 
incumbered  by  mortgage,  judgment,  or  other- 
wise ;  also  that  all  applications  for  insurance 
must  be  in  writing,  pre|)ared  by  an  authoiized 
agent  of  the  company,  and  signed  by  the  appli- 
cant, or  by  his  authority,  and  that  all  statements 
contained  in  the  application  would  be  taken  and 


lltld,  that  the  condition  as  to  defining  the  deemed  to  be  warranties  on  the  part  of  the  in- 
occupancy  and  use  hud  been  sufficiently  fulfilled  j  sured,  and  that  if  the  property  were  an  eijuity 
by  the  application  which  stated  accurately  the  I  of  redemption,  or  if  the  interest  in  the  property 
purposes  for  which  the  building  was  erected  and  j  were  any  other  than  the  entire,  unconditional, 
intended  to  be  used,  and  for  which  it  was  then  j  and  sole  ownership  of  it  for  tiie  use  and  benefit 
used  as  far  as  the  season  of  the  year  would  per-  i  of  the  insured,  or  if  the  same  should  be  inunm- 
mit,  and  that  there  had  been  no  such  conceal-  j  bered  by  mortgage,  judgment,  or  otherwise,  it 
ment  as  to  avoid  the  risk.  !  must  be  so  represented  to  the  company  in  the 

McGihhon  t(  al.  \l  Imperial  Fire  Innurance  Co.,    application,  otherwise  the  policy  sliould  be  void. 
2  R.  &  G.,  6  ;  1  C.  L.  T.,  192.  |  The  agent  of  the  Company  put  to  plaintiff  the 

i  questions  in  the  form  of  application,  and  wrote 
the  answers  down  to  and  inclusive  of  No.  0. 
!  "  Does  the  property  to  be  insured  belong  exclu- 
sively to  the  applicant?  The  answer  being,  "it 
does."  Question  No.  10.  "If  incuml)ered, 
state  to  what  amount,"  was  not  put,  and  thotigli 
1  the  word  "  no  "  appeared  to  have  been  written 
i  after  this  question  in  pencil,  it  did  not  appear 
and  solu  ownership,  it  must  be  so  expressed  in  ^^^^^^  ^^^  evidence  that  plaintiff  had  either 
the  written  part  cl  the  policy,  otlierwise  the  |  ^.^..^^^^^  ^^  authorized  it.  The  application  was 
policy  to  be  void.  There  was  a  mortgage  to  |  ^.^^^^j  j^^  ^^,^.^^^.g  ^^  ..^.^uired.  The  property 
secure  the  sum  of  8800  on  a  portion  of  the  j  ^^^  mortgaged  at  the  time  for  §400.  A  loss  by 
insured  property,  no  mention  of  which  wasjnade  !  ^^^  occurring,  plaintiflF  brought  his  action  upon 

:  the  policy.     There  was  no  evidence  of  bad  faitii 


4.   Condition  as  to  ownersIiip-Overcbarge 

on  loss — Findings  set  aside— Plaintiffs  obtained 
a  policy  of  insurance  from  the  defemlants,  con- 
taining a  condition  that  if  the  interest  of  the 
insured  was  other  than  the  entire  unconditional 


in  the  policy,  but  the  policy  had  been  effected 
on  the  verbal  application  of  one  of  the  plaintiffs, 


or  fraudulent  intent  on  the  part  of  plaintiff. 


who  testified  that  he  had  told  defendants'  agent  |      ^^^^_    ,j^^^   ^,^^   plaintiff  having  accepted  a 


that  there  was  a  mortgage  of  §500  on  the 
property,  (referring  apparently  to  another  mort- 
gage, an  assignment  of  which  was  held  by  two 
of  the  plaintiffs,  the  equity  of  redemption  being 
in  the  plaintiff  McLeod  and  another  who  was  not 
a  plaintiff).  The  building  was  valued  in  the 
claim  at  §2000,  and  four  of  plaintiffs'  witnesses 


policy  containing  the  condilion  referred  to  liad 
violated  those  conditions,  and  could  not  recover, 
Kennedy  v.   The  Agricultural  Ins.  Co., 
1  R.  &  C.,433. 


6.    Condition-Certificate  of  Magistrate- 


testified  that  it  was  worth  that  amount,  a  fifth,  i  A  condition  in  plaintiff's  policy  of  insnrauce 
that  it  was  worth  only  $500,  while  ten  witnesses  [  required  the  certificates  of  the  two  magistrate* 
for  defendants  valued  it  at  sums  ranging  from  j  most  contiguous  to  the  fire,  to  be  deliveicJ 
§300  to  §500.  The  verdict  was  for  plaintiffs  for  j  within  fourteen  days  after  loss,  and  provided 
the  whole  amount  of  their  claim,  not  allowing  j  that,  if  the  claim  should  not  for  the  space  of 
$149  for  the  proceeds  of  property  saved.  ,  three  months  after  the  occurrence  of  the  fire  be 


Held,  that  as  there  was  undisputed  evidence 


of  an  incumbrance  not  mentioned  in  the  policy    assured  should  forfeit  every  right  to  payment 


and  no  evidence  of  fraudulent  omission  on  the 
part  of  the  company,  and  further  as  the  claim 
had  been  wilfully  exaggerated,  and  the  verdict 
was  excessive  in  that  no  allowance  had  been 
made  for  salvage,  it  must  be  set  aside. 

McLeod  et  al.  v.  Citizens'  Insurance  Co., 

3  R.  &  C,  156. 


in  all  respects  verified  in  manner  aforesaid,  the 


or  restitution,  and  time  should  be  of  the  essence 
of  the  contract.  A  verdict  was  found  for  plain- 
tiff, in  April  1877,  which  kvas  set  aside  after 
argument  had  in  February,  1878,  on  the  ground 
that  the  certificates  of  the  nearest  magistrates 
had  not  been  produced.  Plauitiff  then  produced 
certificates  from  the  nearest  magistrates. 


697 


INSURANCE,  FIRE. 


698 


Htld,  that  this  was  no  compliance  with  tlie 
conilition,  and  plaintiff  could  not  recover. 
O'Connor  v.  Cointmrcial  Union  A-^n.  Co., 

2  R.  &  (i.,  338. 

7.  Condition— Certificate  of  Magistrate-  j 

Pleading — The  policy  of  insurance  issued  by 
defeiidivnts  to  plaintiff  required,  among  other  | 
tilings,  as  a  condition  precedent  to  recovery 
umler  tiie  policy,  a  certificate  under  the  hand  of 
a  magistrate  or  notary  public  most  contiguous 
tn  tlic  place  of  fire.  The  fire  took  place  at  Sable  j 
RivLT,  a  country  district  several  miles  in  length 
ftiid  lireadth,  and  the  evidence  for  plaintiff  was 
merely  to  the  effect  that  the  certifying  Justice 
rosided  at  Sable  River. 

Iltld,  that  even  in  the  absence  of  countervail- 
ing tt'Slimony,  as  the  plaintiff  had  notice  by  the 
pluailings  and  tlie  motion  for  non-suit  that  proof 
of  compliance  with  this  condition  would  bo  re- 
(liiireil,  the  evidence  was  not  sufficient  to  sustain 
the  finding  of  the  jury  for  plaintiff. 

Hirkinx  v.  Proi'incial  Inmrance  Co., 

3  R.  &  C,  176. 

8.  Conditions— Certificate  or  Magistrate- 
Waiver — A  policy  of  insurance  contained  a  con- 
ditiiiii  re(iuiring  the  assured  in  case  of  loss  to 
procure  a  certificate  as  to  the  matters  contained 
in  a  statement  of  loss  under  the  hands  of  two  [ 
magistrates  most  contiguous  to  the  place  of  fire. 
A  further  condition  provided  that  no  condition 
should  be  deemed  to  have  been  waived  unless 
the  waiver  was  clearly  expressed  in  writing 
inilorsed  on  the  policy.  The  evidence  was  con- 
clusive that  the  two  magistrates  most  contiguous 
to  the  place  of  fire  were  applied  to  for  their  cer- 
titieate,  Init  refused  to  give  it,  and  there  was  no 
sutiiuient  evidence  of  waiver.  The  jury  having 
found  that  both  conditions  had  been  waived 
and  a  verdict  having  been  entered  on  their  find- 
ing for  the  plaintiff,  the  verdict  was  set  aside 
with  costs. 

Caldwell  \.  The  Stadacona  Fire  Insurance  Com- 
paiiy,  11  S.  C.  R.,  212;    3  C.  L.  T.,  94,  dis- 
tinguished. 
Lo(/aH  V.  The  Commercial  Union  Asa.   Co., 

6R.  &G.,309. 
Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada. 

13  S.  C.  R.,  270. 

9.  Condition-Certificate  of  Magistrate- 
Waiver  -  Change  of  possession  —  Plaintiff 
brought  his  action  on  a  policy  of  insurance 
containing  a  condition  requiring,  in  the  event  of 
loss,  a  certificate  from  the  two  magistrates  most 
contiguous  to  the  place  of  the  fire.    No  such 


certificate  was  produced,  and  plaintiff  relied  on 
a  waiver  of  the  condition,  the  evidence  of  which 
consisted  of  the  fact  that  when  plaintitTs  attor- 
ney handed  to  defendants'  agent  a  letter  forward- 
ing a  certificate  from  two  other  magistrates  and 
explaining  why  a  certificate  from  the  two  nearest 
had  not  been  produced,  the  agent  said  nothing. 
Defendants  also  pleaded  a  condition  as  to 
vacancy  of  the  premises  and  change  in  the 
possession. 

As  to  the  first  point,  the  Court  held  that  the 
silence  of  defendants'  agent,  who  had  on  other 
occasions  expressly  insisted  on  a  compliance  with 
all  the  conditions  of  the  policy,  was  no  evidence 
of  waiver,  and  the  evidence  as  to  change  of 
possession  and  vacancy  being  clear,  they  set 
aside  the  verdict  taken  by  consent  for  plaintiflf. 
O'Connor  v.  Commercial  Union  Insurance  Co. , 

3R.  &C.,  119. 

10.  Conditions  —  Construction  of -Over- 
valuation— Assured  entitled  to  recover  not- 
withstanding, in  the  absence  of  fraud — The  first 
condition  of  the  policy  of  insurance  against  fire 
issued  by  tlie  defendant  company,  provided  that 
"any  application,  survey,  plan  or  description  of 
the  property  herein  specified,  made  by  or  on  be- 
half of  the  assured,  whether  referred  to  herein 
or  not,  will  be  considered  a  part  hereof,  and  the 
basis  of  insurance  under  this  policy  and  a  war- 
ranty by  the  insured."  The  I8th  condition  read  : 
"  Fraudulent  over- valuation  shall  be  a  bar  to 
any  claim  against  the  company,  and  if  the  pro- 
perty insured  is  found  by  arbitration  or  other- 
wise to  be  over-valued  in  the  survey  and  des- 
cription on  which  the  policy  is  founded,  the 
company  shall  only  be  liable  in  the  absence  of 
fraud,  for  such  proportion  of  the  actual  value  as 
the  amount  insured  bears  to  the  value  given  in 
such  survey  or  description." 

In  the  application  the  property  insured  was 
warranted  to  be  of  the  value  of  §25,000,  but  at 
the  trial  it  was  established  that  the  value  at  the 
time  the  application  was  made  did  not  exceed 
from  817,000  to  $18,000. 

Held,  that  both  conditions  must  be  read 
together,  and  that  in  the  absence  of  fraud 
under  the  last  condition  the  assured  was  entitled 
to  recover  for  the  actual  loss  shown,  notwith- 
standing the  over-valuation. 

DouU  et  cU.  V,  7'Ae  Fire  Insurance  Co. , 
6R.  &G.,511; 
6C.  L.  T.,541. 

11.  Condition  in  policy  as  to  rateable 

apportionment— Plaintiflf  was  insured  by  defen- 
dant company  under  a  policy  which  contained 
a  condition  for  apportionment  of  loss  with  any 


699 


INSURANCE,  FIRE. 


700 


other  coinjNiny  in  which  plaintiff  should  be 
inHurcd. 

I'laintiff  was  iusuii'd  at  time  of  \om  in  another 
company  to  the  same  amount  as  in  defendant 
company,  and  defendant  comjMvny  contended 
tliiit  they  were  oidy  liable  for  half  the  loss,  and 
took  a  rule  to  set  aside  a  verdict  found  for  plain- 
tiff for  ?191. 71  in  excess  of  half  the  loss.  The 
first  mentioned  policy  described  tlie  subject  of 
insurance  as  "  stock  and  tools  in  building  ami 
yard  to  the  extent  of  $10(K)."  Under  tlie  last 
mentione<l  policy  which  apportioned  the  amount 
insured  thus  :  on  stock  in  building,  §'2()0  ;  on 
stock  in  yard,  §700 ;  on  tools  and  benches  in 
building,  §100;  the  plaintiff  received  $144.97 
wliich  amount  was  §191.71  less  than  half  the  loss. 

Held,  that  the  verdict  could  not  be  disturbed. 
Ecam  V.   The  Stadacona  Fire  and  Life 

Insurance  Co.,  5  R.  &  (i.,  88. 

12.  Conditions  —  Limitation  ot  time  for 

bringing  action  —  Verdict  for  plaintifiF  set 
aside — A  policy  of  insurance  issued  by  the 
defendant  company  on  plaintitf's  house  con- 
tained the  following  among  other  conditions  : 
"  Every  suit,  action,  or  proceeding  against  the 
company  for  the  recovery  of  any  claim  under  or 
by  virtue  of  this  policy  shall  be  absolutely 
barred  unless  commenced  within  the  term  of 
six  months  next  after  the  loss  or  damage  occurs. " 
The  premises  insured  under  the  policy  were 
destroyed  on  the  4th  October,  1883,  and  the 
action  was  not  commenced  until  April  18th, 
1884. 

Held,  that  under  the  condition  mentioned, 
notwithstanding  another  condition  deferring  the 
bringing  of  any  action  until  after  the  expiration 
of  sixty  days  from  the  completion  of  the  proofs 
of  loss,  plaintiff  was  precluded  from  recovering. 

Also,  that  the  words  "loss  or  damage,"  in 
the  condition,  must  be  taken  to  relate  to  the 
time  of  the  occurrence  of  the  fire. 

McDonald,  C.  J.,  dissenting. 

Verdict  for  plaintifiF  set  aside  and  judgment 
ordered  to  be  entered  for  defendant,  with  costs. 
Blair  v.  Sovereign  Fire  Lis.  Co.,  7  R.  &  G.,  372 ; 

7C.  L.  T.,410. 

13.  Conditions-  Fleadlns-Commencement 

of  action — Plaintiff  in  an  action  on  a  policy  of 
insurance,  referred  in  his  declaration  to  "  the 
condition  indorsed  on  the  policy,  and  which 
constituted  the  basis  of  said  insurance,"  but  he 
only  set  out  one  condition  referring  to  notice  and 
proof  of  loss,  alleging  that  it  was  the  only  con- 
dition material  to  his  cause  of  action,  and  he 
averred  general  performance  of  conditions.  De- 
fendant   pleaded    that    the    action    was    not 


commenced  within  six  months  after  alleged  loss, 
and  the  same  was  not  sustainable  under  the  said 
conditions  indorsed  on  said  policy  ;  and,  by 
another  plea,  that  by  said  policy  the  loss,  if  any 
was  made  payable  to  one  Anderson,  ami  liufore 
the  alleged  loss  the  defendant  company,  by 
notice  to  said  Anderson,  ternunated  the  iusur- 
ance,  and  said  Anderson  agreed  to  terminiiti'  the 
insurance  and  deliver  up  the  policy  to  lie  am' 
celled. 

Held,  that  these  pleas  were  bad  under  sees. 
151  and  152  of  the  Practice  Act,  as  they  did  not 
allege  or  show  that  the  policy  contained  any 
conditions  recjuiring  the  action  to  be  brouglit 
witliin  six  montlis,  or  enabling  the  Company  to 
terminate  the  insurance  by  notice,  and  tliat  tlie 
objections  to  the  pleas  were  not  such  as  could  be 
obviated  by  amending  them  under  section  124. 

Caldwtll  V.  Stadacona  Fire  tO  Life  Ins.  Co., 

1  R.  &  G.,  '.m 

14.     Condition  requiring  action  to  be 

brought  within  six  months  —  New  party 
allowed  to  be  added  after  six  months  —  Sub- 
sequent insurance  —  Notice  to  Company- 
Waiver — At  the  trial  of  an  action  on  a  policy 
of  insurance  an  amendment  was  granted  more 
than  six  months  after  the  loss,  allowing  a  party 
to  be  added  as  plaintifiF,  although  the  policy 
required  the  action  to  be  brought  within  six 
months. 

JJeld,  that  the  amendment  was  properly 
granted. 

Doidl  et  al.  v.  The  Western  Assurance  Co., 

6R.  &G.,478; 
6  C.  L.  T.,  539. 

On  appeal  to  the  Supreme  Court  of  Canada, 

The  question  of  amendment  was  not  touched, 
but  the  decision  was  upon  the  following  facts 
in  the  case  : — 

A  policy  of  insurance  against  loss  by  fire  con- 
tained the  following  conditions : — In  case  of 
subsequent  assurance  on  any  interest  in  property 
assured  by  this  company,  whether  the  interest 
assured  be  the  same  as  that  assured  by  this 
company  or  not,  notice  thereof  must  be  given  in 
writing  at  once,  and  such  subsequent  assurance, 
indorsed  on  the  policy  granted  by  this  company, 
or  otherwise  acknowledged  in  writing,  in  default 
whereof  such  policy  shall  thenceforth  cease  and 
be  of  no  eflFect.  The  assured  eflfected  subse- 
quent assurance  and  verbally  notified  the  agent, 
but  there  was  no  indorsement  made  on  the 
policy,  nor  any  acknowledgment  in  writing  by 
the  company.  A  loss  having  occurred,  the 
damage  was  adjusted  by  the  inspector  of  the 
company,  and  neither  he,  nor  the  ageut, 
made  any  objection  to  the  loss  on  the  ground 
of  non-compliance  with  the  above  condition. 


701 


INSURANCE,  FIRE. 


702 


Ii'  a  suit  to  recover  the  amount  of  the  policy 
the  od.'ipiiny  pleaded  breach  of  the  condition,  in 
reply  to  which  the  plaintiff  set  up  a  waiver  of 
the  condition  and  contended  that  by  the  act  of 
the  iigtnt  and  inspector,  the  company  were 
estopped  from  setting  it  up. 

Hdil,  reversing  the  judgment  below,  that  the 
assured  not  having  complied  with  the  condition, 
the  jxili!  y  ceased  and  became  of  no  effect  on  the 
siili!-e(|uent  assurance  being  effected,  and  that 
neither  the  agent  nor  the  inspector  had  power 
to  waive  a  compliance  with  its  terms. 

Thk  WtKlern  Aixnrance  Co.  v.  Doull  el  «/., 
12  S.  C.  P..,  446. 

1.5.   Insurable  interest— 

l\r  McDonald,  C.  J.  — The  interest  insured 
was  that  of  a  mortgagee  ;  the  interest  proved  at 
time  of  loss  was  absolute  owner.  There  was  no  ! 
insurable  interest  in  the  plaintiffs  covered  by  the 
policy,  either  when  the  policy  was  insured  or 
at  the  time  of  the  loss  claimed,  and  therefore 
plaintiff  must  fail. 

Howard  tt  al.  v.  LaHcanhire  Inn.  Co., 

5R.  &G.,  172. 

Affirmed  on  appeal  to  the  Supreme  Court  of 

Canada. 

11  S.  C.  R.,92; 

6  C.  L.  T.,  26. 

16.   Insurable  interest— Over-Taluation  — 

Preliminary  proof — In  an  action  for  the  amoimt 
insured  under  a  policy  against  fire,  the  defen- 
dants pleaded  over-valuation,  want  of  insurable 
interest,  misrepresentation  of  title  and  false 
swearing  in  the  preliminary  proof.  The  Judge  on 
the  trial  reserved  the  question  as  to  the  want  of 
insurable  interest  but  submitted  the  other  issues 
to  the  jury,  who  found  them  all  in  favor  of  plain- 
tiff, and  brought  in  a  verdict  for  almost  the  full 
amount  claimed.  With  regard  to  the  interest  of 
plaintiff,  the  facts  were  that  he  was  at  the  time 
of  the  loss  in  possession  of  the  premises  under 
an  agreement  to  pay  for  the  same  by  instalments, 
covermg  six  years.  He  had  paid  a  portion  of 
the  purchase  money  and  had  improved  the  pro- 
perty by  various  outlays  upon  it,  yet  under 
the  agreement  he  could  not  have  demanded 
possession  until  a  few  days  after  the  policy  was 
signed. 

H'M,  Wilkins,  J.,  dissenting,  that  the  plain- 
tiff had  an  insurable  interest  and  that  the  verdict 
should  be  sustained. 
Humphrey  v.  London  <Si  Lancashire  Ins.  Co., 

2  N.  S.  D.,  39. 


17.  Loss-OTercharge  f^andaleo'ly  made 

—Plaintiffs  in  their  statement  of  loss  by  fire 
claimed  that  a  building  constituting  part  of  the 


property  destroyed  was  worth  ?20()0.  The  evid- 
ence as  to  the  real  value  of  the  building  was 
such  as  to  convince  the  Court  that  it  was  not 
worth  when  new  more  than  8800  to  SKXHI,  and 
that  at  the  time  of  the  lire  it  was  not  worth  Uiore 
than  $500. 

11(1(1,  that  the  verdict,  which  was  the  second 
verdict  for  the  plaintiffs,  must  be  set  aside  on 
the  ground  of  fraudulent  overcharge  in  the 
claim  of  loss,  the  policy  providing  tluit  the 
insureil  should  forfeit  all  remedies  if  guilty  of 
"  any  wilful  misstatement  with  intent  to  deceive 
the  company  as  to  the  amoun    of  loss." 

McLtod  tl  al.  V.  Citiztus'  Iii.surance  Co.f 
1  R.  &(;.,  21. 

IS.    Loss  —  Over-valuation  —  Fraud  nee;a> 

tived — Plaintiff'  insured  in  defendants'  othco 
8300  on  a  building  and  ?1 100  on  merchandise, 
ships'  stores,  ftc,  representing  the  value  of  tlio 
property  insured  to  be  81800.  The  property 
being  totally  destroyed  by  tire  during  tlie  ab- 
sence of  plaintiff,  he  notified  defendants'  agenta 
of  the  fact,  when  they  said,  "obtain  the  infor- 
mation (required)  after  you  get  home,  as  soon  as 
possible,  and  that  will  do,"  which  plaintiff  did. 

Hd(l,  that  on  the  question  of  waiver  of  strict 
compliance  with  terms  of  policy  as  to  notice,  the 
jury  were  justified  in  finding  for  plaintiff.  The 
jury  having  in  answer  to  a  written  question  from 
the  Judge,  "whether  plaintiff  made  any  false 
representations  to  the  company  or  to  its  agents 
respecting  the  value  of  the  property  insured,  or 
any  part  thereof,  or  respecting  his  claim  for  the 
loss,  or  in  any  other  respect,"  leplied  "incor- 
rect and  unguarded  representations  through 
ignorance  respecting  the  value  of  the  building, 
ships'  materials,  puncheons,"  &c. 

Held,  that  this  answer  negatived  fraud  on  the 
part  of  the  plaintiff  in  the  over-valuation  of  his 
property,  and  that  the  verdict  which  was  for  & 
less  amount  than  the  claim  must  stand. 

Canii  V.  Imperial  Fire  Insurance  Co.^ 
1  R.  &C.,240. 

19.    Loss  —  Over  •  valuation  In  proofs  ot 

loss — Pleading — Under  conditions  in  a  policy 
of  fire  insurance  for  $400  requiring  that  in  claim- 
ing for  a  loss  the  whole  actual  cash  value  of  the 
property  insured  should  be  declared,  and  provid- 
ing that  any  fraud  or  false  swearing  should  viti- 
ate the  claim,  defendants  pleaded  that  plaintiffs 
c'elivered  a  false  and  fraudulent  ?.;oount  of  the 
alleged  loss,  and  that  plaintiffs  had  declared  the 
building  destroyed  to  be  worth  $600  to  induce 
the  defendants  to  pay  him  $400,  whereas  the 
building  was  not  of  that  value  and  plaintiff  had 
not  suffered  damages  to  that  extent,  aa  the  in- 
sured well  knew. 


70;} 


INSURANCE,  FIRE. 


704 


ed. 


Held,  that  tlie  tlefuiio  was  sutticiently  pluiid- 

Qa^fonijiiay  ft  al.  v.  Soivreii/n  Fire.  Inx.  Co., 

A  R.  &  (i.,  3.S4. 


'20.    M jsrepr'^sentattons  —  Concealment — 

Warranty —IMiiiiitiii's  were  iiisnred  l)y  defeiulunt 
c()ni(.any  on  iiiacliiiiery  in  iv  "spool  factoiy. " 
At  tlie  time  of  the  apphuatiun  there  was  mach- 
inery in  the  huihling  for  the  nianufauture  of  ex- 
celsior, which  was  not  however  used  for  the  pur- 
pose till  some  montlis  after  the  policy  was 
efTected,  though  it  was  so  used  before  the  re- 
newal of  the  policy  and  nothing  was  said  to  the 
insurers  about  sucli  use.  The  jury  found  in 
answer  to  questions  that  tlie  more  hazardous 
risk  of  the  two  was  the  manufacture  of  spools 
an<l  that  the  risk  «'as  not  increased  by  adding 
the  manufacture  of  excelsior  to  that  of  spools  in 
the  same  building.  Tlie  Court  refused  to  set 
aside  the  verdict  for  plaintiffs  on  these  findings 
and  held  that  even  assuming  that  tliere  was  a 
warranty  against  the  manufacture  of  excelsior, 
it  oould  not  be  relie<l  on  under  the  plea  tlint  the 
occupation  of  tlie  premises  was  not  truly  descrilied 
and  that  plaintiffs  had  represented  that  said 
Iniililing  was  occupied  as  a  spool  factory,  wliere- 
as  in  fact  the  same  was  occupied  in  a  much  more 
dangerous  and  hazardous  manner  to  wit  &c. 

McDonald,  C.  J.,  dix.iiutiii;/ 

Moirttal.  V.  The  Sovvrtiijn  Fire.  In-niranco,  Co. 

OR.  &  (i.,  r)02; 
6C.  L   T.,  541. 

Oil  appeal  to  the  Siqveme  Court  of  Canada, 
HM,  reversing  the  judgment  of  the  Court 
below,  that  as  the  manufacture  of  exceli^ior  was 
in  itself  a  hazardous  business,  the  introduction 
of  it  into  the  building  insured  would  avoid  the 
policy  under  the  following  clause  in  the  policy  : 
"In  case  the  above  described  premises  shall,  at 
any  time  during  the  continuance  of  this  insur- 
ance, be  appropriated  or  applied  to  or  used  for 
the  purpose  of  carrying  on  or  exercising  therein 
any  trade,  business,  or  vocation  denominated 
hazardous  or   extra-hazardous  .     .     unless 

otherwise  specially  provided  for  or  hereafter 
agreed  to  by  thi.s  company,  in  writing,  or  added 
to,  or  indorsed  on  this  policy,  then  this  policy 
shall  become  void."  It  would  so  avoid  the 
policy  even  if  the  jury  were  right  in  their  find- 
ing that  it  was  less  hazardous  than  the  manu- 
facture of  spools. 

Held,  also,  that  the  addition  of  the  manufac- 
ture of  excelsior  to  that  of  spools,  in  the  said 
premises,  was  a  change  material  to  the  risk,  and 
avoided  the  policy  under  the  following  clause  : 
"  Any  change  material  to  the  risk,  and  within 


the  control  or  knowledge  of  the  assured,  s  i&ll 
I  avoid  the  policy  aa  to  the  part  affected  tiiereby, 
unless  the  change  is  promptly  notified  in  writing 
I  to  the  company  or  its  local  agent. " 

Sovereiijii  Fire  Insurance  Co.  v.  Moir, 

14  S.  C.  R.,(il2; 
'  7  C.  L.  T.,  I2<». 

I    21.    Mortgagee— Insurance  for  benefit  of 

—  Interpleader  —  Plaintiff  mortgaged  curtain 
properly  to  C.  for  8434.50,  and  covenanted  in 
the  mortgage  to  keep  it  insured  for  §")()()  in  the 

■  name  and  for  the  benefit  of  the  mortgagee. 
.Subsequently  plaintiff  effected  insurance  to  the 
amount  of  Ijo/O  on  his  own  account,  witiiout 

I  reference  to  the  mortgagee,  §180  of  which  was  on 
the    personal    property,   not    covered    by    tlit 

I  mortgage.  After  loss  by  fire,  the  mortgagee, 
finding  that  the  insurance  was  not  in  his  naine, 
demanded  an  assignment  of  the  policy,  offering 
to  secure  to  plaintiff'  the  amount  due  him,  and 
upon  his  refus.ll,  claimed  the  amount  from  the 
company.  Defendants  paid  the  S180,  and  upon 
action  brought  for  the  balance,  nn  interpleader 
order  was  made. 

\      Held,  that  the  insurance  inured  to  the  benefit 

'  of  the  mortgagee,  and  that  he  was  entitled  to 
interplead,  although  the  claim  of  the  mortgagee 
was  an  Mjuitable  claim,  and  the  company  was 

,  under  a  contractual  obligation  to  the  plaintifi', 
and  although  tiie  claim  ot  the  mortgagee  was 

'  smaller  than  the  amount  insm-ed. 

McKcnzie  v.  jF/iia  luniranre  Company, 
R.  E.  I).,  ,340. 

22.    Mortgagee  -Insurance  payable  to,  in 

,  case  of  loss— Preliminary  prjof — Who  may 

maintain  action— Where  property  was  insured 

,  in  the  name  of  0.,  but  the  policy  contained  the 

j  following  clause  ;  "  loss,  if  any,  payable  to  tlie 

!  order  of  B. ,  if  claimed  without  sixty  days  ufter 

j  proof,  his  interest  therein  being  as  mortgagee." 

Held,    Dodd,   J.,    di^ttentiwj,   that  JJ.   iniglit 

I  brnig  an  action  on  the  policy  in  his  own  name 

I  and   that  he  must    be   taken  to  be  the  party 

insured. 

Held,  aiio,  that  it  was  no  objection  to  15's 
recovery,  that  the  preliminary  proofs  were 
furnished  by  him  and  not  by  0. 

Bruihv.  /Etna  Innurance  Co.,  1  Old.,  459. 

j3.   Notice  —  Conditions  -  Waiver   of- 

Waiver  of  proof— Defendants  resisted  payment 
of  insurance  on  stock  in  trade  of  V.  J.  Gibson 
on  the  ground,  among  others,  that  they  had  not 
had  notice  of  a  subsequent  insurance  as  required 
by  a  condition  of  the  policy.     The  subsequent 


insurance  was  bargained  for  by  Gibson  as  insur- 


705 


INSURANCE,  FIRE. 


706 


anuu  ill  the  defendant  company,  but  the  agent 
ap|)liu(l  for  it  to  another  conifMny,  of  which  lie 
was  aJKo  agent,  a!id  tiihgon  knew  notiiing  of  tiie 
ciiaiijjc  until  lie  got  his  policy.  When  the  los.s 
occiiiriMl  the  defendants  eni|iloyed  an  agent,  who 
took  poBseiision  of  (tihHon'ii  i>ookH,  agreed  to 
leave  to  urhitratora  as  the  only  (luestion  to  be 
decided  the  amount  covered  by  the  j)olicy,  and 
trt'iUed  the  policy  throughout  aH  being  in  full 
force.  At  tiie  trial  an  amendment  was  granted 
more  than  six  months  after  the  loss,  allowing 
(lilisdu  to  be  added  as  plaintiti',  although  the 
j)()licy  rc(|uired  that  the  action  be  brought  within 
six  months. 

Hdd,  that  the  amen<lment  was  properly 
gnuitcd, 

Ilild,  alio,  that  the  conditiim  as  to  subseiiuent 
insurance  was  com[)lied  with  or  waived,  and  that 
the  defective  proof  of  loss  was  waived. 

Doull  ft  al.  V.  The.  WeKlKrn  Aisurance  Co., 
6  R.  &  (}.,  478  ;  6  C.  L.  T.,  .ISO. 

On  apiwxd  to  the  Snprume  Court  of  Canada, 

The  question  of  amendment  was  not  touched, 
liut  the  decision  was  upon  the  follov/ing  facts 
ill  the  case  : — 

A  policy  of  insurance  against  loss  by  tire  con- 
tuiiicd  the  following  condition  : — In  case  of  sub- 
se(|Uont  assurance  on  any  interest  in  property 
assured  by  this  company,  whether  the  interest 
assured  be  tiie  same  as  that  assured  V>y  this  com- 
pany or  not,  notice  thereof  must  be  given  in 
writing  at  once,  and  such  subse([uent  assurance, 
indorsed  on  the  policy  granted  by  this  :;ompany, 
or  otherwise  acknowledged  in  writing  ;  in  de- 
fault whereof  such  policy  shall  tlienceforth  cease 
and  1)0  of  no  cftect.  The  assured  effected  subse- 
(lucnt  as.surance  and  verbally  notified  the  agent, 
but  there  was  no  indorsement  made  on  the 
policy,  nor  any  acknowledgment  in  writing  by 
the  company.  A  loss  having  occurred,  the 
damage  was  adjusted  by  the  inspector  of  the 
company,  and  neither  he,  nor  the  agent,  made 
auy  objection  to  the  loss  on  th.e  ground  of  non- 
eonipliance  with  the  above  condition. 

In  a  suit  to  recover  the  amount  of  the  policy 
the  company  pleaded  breach  of  the  condition, 
in  reply  to  which  the  plaintiff  set  up  a  waiver  of 
the  condition,  and  contended  that  by  the  act  of 
the  agent  and  inspector  the  company  were 
estopped  from  setting  it  up. 

Held,  reversing  the  judgment  below,  that  the 
assured  not  having  complied  with  the  condition, 
the  policy  ceased  and  became  of  no  efiFect  on  the 
subsequent  ass'irance  being  effected,  and  that 
neitiier  the  agent  nor  the  inspector  had  power 
to  waive  a  compliance  with  its  terms. 

The  Wentem  Assurance  Co.  v.  Doull  et  al., 
12  S.  C.  R.,  446. 
23 


ai.    Notice  or  other  Insurance -Condition 

— Defendants  issued  a  policy  to  plaintiffs  contain- 
ing a  proviso  that  it  should  cease  and  )>e  of  no 
further  effect  if  the  plaintiffs  effected  any  other 
insurance  on  same  property  without  notice  to 
defendants.  Plaintiffs  effected  a  second  insur- 
ance, without  such  notice. 

Hfld,  that  plaintiff's  could  not  recover. 

Cainphdl  et  al.  v.  The  j-Etna  Ins.  Co. , 
Cochran,  21. 

'    23.    Occupation  or  premises— Condition  as 

I  to — One  of  the  conditions  of  the  policy  recjuired 
1  the  application  to  state  by  whom  the  property 
I  was  occupieil,  and  whether  any  manufacturing 
)  was  carried  on  within  or  about  it,  and  plaintiffs 
1  had  described  it  as  a  framed  building  occupied 
I  as  a  water  power  saw  mill.  It  had  been  built 
about  1870  and  worked  for  about  four  months  in 
j  every  year,  for  three  years,  from  which  time  un- 
I  til  it  was  purchased  by  plaintiffs  in  December, 
!  1877,  it  appeared  to  have  been  unoccupied  and 
i  unused  as  a  mill.  When  plaintiffs  purchased 
'  they  immediately  went  into  possession  and  put 
I  their  servants  in  charge,  but  the  mill  could  not 
I  at  that  season  be  worked  for  want  of  water  even 
j  had  it  been  in  working  order.  Soon  after  pur- 
I  chasing  they  set  about  repairing  the  dam,  which 
I  wlicn  finished  in  1878  was  carried  away  by  a 
j  freshet,  after  which  plaintiff's  proceeded  to  build 
:  another  dam,  abandoning  any  idea  of  working 
j  the  mill  until  the  increase  of  water  in  the 
autumn.  The  mill  was  destroyed  by  tire  in 
I  July,  1878.  One  of  the  conditions  rendered  tho 
!  policy  void  for  misrepresentation  or  conceal- 
ment touching  the  risk. 

t  Hild,  that  the  condition,  as  to  defining  the 
occupancy  and  use,  I'.ad  been  sufficiently  fulfilled 
by  the  application,  which  stated  accurately  the 
purpose  for  which  the  building  was  erected  and 
intended  to  be  used,  and  for  which  it  was  then 
used  as  far  as  the  season  of  the  year  would  per- 
mit, and  that  there  had  been  no  such  conceal- 
ment as  to  avoid  the  risk. 

McGibbon  et  al.  v.  Imperial  Fire  Inn.  Co., 

2  R.  &  a.,  6  ; 
1  C.  L.  T.,  192. 

26.    Overcharge  without  Intent  to  defraud 

— Verdict  set  aside — Plaintiffs  brought  action 
on  a  policy  of  insurance  and  the  jury  in  answer 
to  a  question  whether  the  claim  had  been  honest- 
ly made  replied  ' '  being  overestimated  but  not 
with  the  intention  of  fraud."  Butcher,  a  co- 
plaintiff,  gave  very  strong  evidence  to  implicate 
Longley  first  as  being  privy  to  the  destruction  of 
the  property,  and  secondly,  as  having  made  a 
false  and  fraudulent  claim.     The  whole  evidence 


707 


INSURANCE,  F]RE. 


708 


in  the  opinion  of  the  Court  Hhnwed  badges  of 
fraud,  and  altli<iugh  tlie  jury  luid  neyiitived  in- 
tentional fraud  in  tliu  statument  of  thu  claim, 
iheir  verdict  was  for  only  .^4()0,  while  the  claim 
had  1)11011  made  for  8."i(i5.(M]. 

Hi  Id,  tiiat  the  verdict  must  be  set  aside. 

On  the  reading  uf  the  minutes  it  appeared  that 
the  rule  nini  for  a  new  trial  had  been  made  re- 
turnable in  the  November  term.  Olijection 
having  been  taken,  the  Court  allowed  tiie  rule 
to  be  ainendeil  by  Mubstituting  "  December  "  for 
"  November  "  and  the  argument  proceeded. 

Lomjley  et  al.  v.  Xorthtru  Ini^urnncf  Co., 

3  R.  &  C,  516. 

27.  Pleading  —  Nunquam  Indebitatus  — 

Defendants  in  an  action  on  a  jjolicy  of  insurance 
pleaded  with  fifteen  other  pleas  nunqiiam  iiulehi- 
tatw,  and  two  pleas  alleging  that  the  action  had 
not  been  brought  within  six  months  as  recjuired 
by  a  condition  of  the  policy  ;  but  there  was  no 
plea  denying  the  making  of  the  policy.  Plain- 
tifif  rslying  on  the  want  of  a  plea  traversing  the 
making  of  the  policy,  did  not  put  it  in  proof  and 
defendants  failed  to  produce  it  to  prove  the 
condition. 

//dd,  that  the  plaintiflf  could  not  be  put  to  the 
proof  of  the  policy  by  the  plea  7iwiquam  ind'.bi- 
talus  but  that  under  such  plea,  though  perhaps 
demurrable,  the  defendants  might  have  given 
evidence  of  the  alleged  condition,  had  they  been 
in  a  position  to  do  so. 

Quaere,  whether  the  plea  of  nunquam  indebi- 
tatus is  not  bad. 

Barrett  v.  The  Isolated  Risk  Insurance  Co., 

1  R.  &  G.,  215. 

28.  Proof— Defective  proofs  of  loss  — 

Waiver  of  condition — The  condition  as  to  proof 
of  loss  specified  nine  distinct  requirements,  only 
three  of  which  were  complied  with  by  plaintiffs, 
who  relied  on  a  waiver  of  the  condition  by  de- 
fendants' agent.  The  proof  of  the  alleged 
waiver  consisted  of  a  conversation  between  the 
plaintiffs'  clerk  and  defendants'  agent,  and 
between  the  latter  and  one  of  the  plaintiff.  In 
the  first  mentioned  conversation  all  that  was 
said  by  the  agent  was  that  he  would  send  up 
an  agent  to  investigate,  and  again  that  there 
would  be  no  delay  in  payment  when  the  proper 
papers  were  made  out.  In  the  conversation  with 
the  T  laintiflf  the  agent  said  that  the  papers  had 
been  sent  to  England  and  uothiiig  would  be 
done  till  their  return.  He  said  the  fire  was  a 
fraudulent  one,  expressed  wonder  the  plaintiffs 
would  trust  a  man  like  Strong  (the  owner  of  the 
insured  goods  which  plaintiffs  claimed  by  assig- 
ment),  and  the  plaintiff  in  his  evidence  as  to  this 


conversation  added  :  "He  re(|uircd  me  to  do 
nothing  more  than  what  I  did.  He  did  not  make 
any  objection  to  the  proof  of  loss." 

llild,  that  there  was  no  evidence  of  waiver. 

Pir  Weatherbe,  .1. — That  the  plaiiitifFH  evid- 
ence simply  meant  that  nothing  was  said  by  the 
agent  as  to  the  proof  of  loss,  and  not  that  any- 
thing had  been  said  to  induce  plaintiffs  to  under- 
stand  that  ol>jectioii  would  not  be  taken  to  thu 
proofs. 

Howard  tt  al.  v.  The  Lancashire  Insuranrr  Co. , 

5R.  &G.,  ITl'. 

On  appeal  to  the  Supreme  Court  of  Canada, 

J.,  the  manager  of  appellant  firm,  insuiccl 
the  stock  of  one  S,,  a  debtor  to  the  firm,  in  tlie 
name  and  for  the  benefit  of  the  uppuilant.  At 
the  time  of  effecting  such  insurance,  J.  repres- 
ented appellant  to  be  mortgagee  of  the  stock  of  .S. 
The  debtor  S.  becauie  insolvent,  and  J.  was  ap- 
pointed creditors'  assignee,  and  the  property  of 
the  insolvent  was  conveyed  to  him  by  theolliei.il 
assignee.  On  March  8th,  1876,  S.  made  a  bill 
of  sale  of  his  stock  to  J.,  having  effected  a  com- 
position with  his  creditors  under  the  Insolvent 
Act  of  1875,  but  not  having  had  the  same  con- 
firmed by  the  Court.  The  insurance  policy  was 
renewed  on  August  5th,  1876,  one  year  after  ita 
issue.  On  January  12th,  1877,  the  bill  of  sale 
to  J.  was  discharged  and  a  new  bill  of  sale  given 
by  S.  to  the  appellant  who  claimed  that  the 
former  had  been  taken  by  J.  as  his  agent,  and 
the  execution  of  the  latter  was  merely  carrying 
out  the  original  intention  of  the  parties.  The 
stock  was  destroyed  by  fire  on  March  8th,  1877. 
An  action  having  been  brought  on  the  policy  it 
was  tried  before  Smith  J. ,  without  a  jury,  and  a 
verdict  was  given  for  the  plaintiff.  The  Supreme 
Court  of  Nova  Scotia  set  aside  this  verdict,  and 
ordered  a  new  trial,  on  the  ground  that  plaintiff 
had  no  insurable  interest  in  the  property  wheu 
insurance  was  effected,  and  that  no  interest  sub- 
sequently acquired  would  entitle  him  to  maintain 
the  action. 

One  of  the  conditions  of  the  policy  was  "  that 
all  insurances,  whether  original  or  renewed, 
shall  be  considered  as  made  under  the  original 
representation,  in  so  far  as  it  may  not  be  varied 
by  a  new  representation  in  writing,  which  in 
all  cases  it  shall  be  incumbent  on  the  party  in- 
sured to  make  when  the  risk  has  been  changed, 
either  within  itself,  or  by  the  surrounding  or 
adjacent  buildings." 

Held,  (1.)  That  the  appeal  should  be  heard. 
Eureka  IVoolen  Mills  Company  v.  Moss,  11  S.  C. 
R.,  9,  approved  and  distinguished. 

(2.)  That  the  appellant  having  had  no  insur- 
able interest  when  the  insurance  was  effected, 
the  subsequently  acquired  interest  gave  him  no- 


709 


INSURANCE,  LIFE. 


710 


claim  to  tliu  luiietit  of  the  policy,  the  renowalof 
the  (ixixting  policy  being  merely  ii  continuiiiico 
of  till'  origiiiiil  contract. 

Howard  v.  The  l.ancaxhire  Akk,  Co., 

II  S.  C.  K.,  »-2; 
OC.  L.  T.,  L'ti. 

'iO.    Proof  of  I08H-  lertlflcatc  of  Mugl8> 

trate— When  one  of  the  comlitionH  of  a  policy 
requires  a  eertiticatc  from  tlie  inagi»trato  most 
contiguous  to  tliu  place  where  the  lire  oc- 
curred, stating  Buch  lire  to  have  been  auciilental, 
eti'.,  the  furnishing  such  a  certilicate  is  a  condi- 
tion precedent  to  iiis  rigiit  to  claim  for  any  loss, 
A  certificate  signed  by  a  magistrate  ten  miles 
distant,  where  there  are  otiicrs  within  a  mile  of 
the  tire,  will  not  be  sutKcient. 

The  Court  will  not  reciuire  a  rule  nUi  to  set 
fortli  all  the  grounds  on  wiiich  the  party  liopes 
to  obtain  a  new  trial. 

Moody  V.  yEtna  Insurance.  Co. , 

2Thom.,  173. 

30.   Waiver  required  by  condition  to  be  In 

writing— Amendment  refused— Insurable  in- 
terest of  husband  in  wife's  property — After  a 
general  verdict  for  plaintiff  in  an  action  on  a 
policy  of  insurance,  defenilant  moved  at  the 
argument  to  add  a  plea  setting  up  the  defence 
thr.t  the  action  had  not  been  brought  within  six 
months,  as  required  by  the  conditions  of  the 
policy.  The  amendment  was  refused.  See 
AMENDMENT,  II.,  3.  The  policy  of  insurance 
contained  a  condition  that  no  requirement  as  to 
proofs  of  loss  should  be  waived  unless  in  writ- 
ing. The  proofs  of  loss  were  defective,  and  the 
Court  held  that  there  had  been  a  waiver,  but  as 
it  was  not  in  writing  the  verdict  was  set  aside. 
Caldwell  v.  The  Stadacona  Fire  <t'  Life  Ins.  Co. , 

3R.  &G.,  218. 
On  appeal  to  the  Supreme  Court  of  Canada, 
The  following  facts  in  the  case  were  involved 
in  the  decision  : — 

A.  effected  insurance  on  C's  property,  on 
whicii  he  held  a  mortgage,  under  authority  from 
and  in  the  name  of  C. ,  with  loss  payable  to  him- 
self. During  the  continuance  of  the  policy  the 
company  notified  A.  that  the  insurance  would 
be  terminated,  and  advised  him  to  insure  else- 
where. Such  notice  also  stated  that  unearned 
premiums  would  be  returned,  but  no  payment 
or  tender  of  the  same  was  made  according  to 
conditions  of  policy.  A.  took  the  policy  to 
the  agent  of  insurers,  who  was  also  agent  of 
the  W.  Ins.  Co.,  and  left  it  with  him,  direct- 
ing him  to  put  the  risk  in  the  latter  Company. 
No  receipt  was  given,  and  the  property  was 
destroyed  by  fire  immediately  after.  The 
Company  resisted  payment  on  the  ground  that 


the  policy  was  surrendered,  and  contended 
on  the  trial,  in  addition,  that  C.  had  parted 
with  iiis  interest  in  tlie  proj)erty  by  giving  u 
deed  to  one  H,  who  had  reconveyed  to  C's  wife, 
and  that  proper  proofM  of  loss  had  not  been 
given,  chiiming,  in  reply  to  a  plea  of  waiver, 
in  regard  to  such  proofs,  that  such  waiver 
should  have  been  in  writing,  according  to  a 
coiulition  in  the  policy.  Tliey  had  refused  to 
return  policy  on  demand. 

Hi  III,  reversing  the  judgment  below,  Fournier, 
.1.,  itissi  ntiiiij,  that  C.  had  an  insurable  interest 
in  tlic  property  at  the  time  of  the  loss,  as  the 
husl)and  of  the  owner  in  fee  and  teiuint  by  the 
curtesy  initiate,  and  having  hail  also  an  insur- 
able interest  when  the  insurance  was  effected, 
the  policy  was  not  avoided  by  the  ileed  to  15. 

Tiiat  the  company,  by  wrongfully  witldiolding 
the  policy,  were  estopped  from  claiming  that 
proofs  of  loss  had  not  been  given  acc(M-ding  to 
indorsed  condition,  and  were  equally  estopped 
from  setting  up  the  condition  requiring  waiver 
of  such  proofs  to  be  in  writing,  if  such  condition 
applied  to  waiv.^r  of  proofs  of  loss. 

That  the  measure  of  damages,  recoverable  by 
tenant  for  life  of  the  insured  premises  is  the  full 
value  of  such  premises  to  the  extent  of  the  sum 
insured. 

Per  Fournier,  J.,  dissenting,  that  the  sending 
of  the  circular  by  the  company,  and  compliance 
with  its  terms  by  the  assured  in  giving  up  the 
policy  to  the  company's  agent,  was  a  surrender 
of  said  policy,  and  plaintiff  therefore  could  not 
recover.  Under  the  practice  in  Nova  Scotia 
where  the  wife  is  improperly  joined  as  co-plain- 
tiff with  the  husband  the  suit  does  not  abate, 
but  the  wife's  name  must  be  struck  out  of  the 
record  and  the  case  determined  as  if  brought  by 
the  husband  alone, 

Caldwell  v.  The  Stadacona  Fire  cfc  Life 
/;w.  Co.,  II  S.  C.  R.,  212;  3  C.  L.  T.,  94. 

31.   Writing— Assignment  of  policy  need 

not  be  in  writing — 

^ce  ASSIGNMENT,  III.,  5. 


INSURANCE,  LIFE. 

1.   Action  for  cancellation  of  policy  ot 

life  insurance  —  Insurable  interest  —  Wager 
policy  — 14  Geo.  3,  c.  48  —  Policy  obtained 
by  insured  on  his  own  life  for  the  benefit 
of  another  having  no  interest  held  good  — 
E.  F.  B.  made  application  to  the  plaintiff  com- 
pany for  and  obtained  a  policy  of  insurance  upon 
his  life  for  the  benefit  of  defendant.  The 
premiums  were  paid  by  E.  F.  R. ,  and  defendant 
had  no  knowledge  of  the  existence  of  the  policy 


711 


INSURANCE,  LIKK. 


712 


until  after  the  deatli  of  lliu  iimiircil.  I'laintitf 
uppliuil  to  huvo  thu  polioy  lU'liviTijil  up  to  bu 
caiiuflltiil  nil  tliu  grDiiiicl  tliat  ilcfeiidaiit  liail  no 
inttfrcMl  liuiiutii'ially,  pecuniary  or  otlierwini!  in 
tiiu  life  of  the  iuMured.  The  policy  having  heen 
applied  for  and  the  preniiuni»  paid  in  good  faith 
by  K.  V.  U., 

//■'/'/,  that  defenilant  was  entitled  to  recover, 
and  that  the  rule  where  inHurance  is  applied  for 
on  the  life  of  another  and  no  in^^urablo  interest 
did  not  apply. 

'J'he  Xorth  Amtricaii  LiJ'i'  Axmirance  Co.  v. 

Craifien,  6  R.  &  (i.,  440; 
fl  ('.  L.  T,,  MS. 

On  appeal  to  the  SiijrrevK.  Court  of  Canatla, 

The  statute  14  IJuo.  3,  c.  48,  enacts  :  1.  That' 
no  insurance  shall  be  nuvde  by  any  person  or 
persons,  bodies  politic  or  corporate,  on  the  life 
or  lives  of  any  person  or  persons,  or  on  any  other 
event  or  events  whatever,  wherein  the  person 
or  persons  for  whose  use  or  benetit,  or  on  wliose 
account,  such  policy  or  policies  shall  bo  made, 
shall  have  no  interest,  or  by  way  of  gaming  or 
wagering  ;  and  that  every  insurance  made  con- 
trary to  the  true  intent  and  meaning  of  this  Act 
shall  be  null  and  \(iid  to  all  intents  and  purposes 
whatsoever.  i 

2.  That  it  shall  not  be  lawful  to  make  any 
policy  or  policies  on  tho  life  or  lives  of  any  per- 
son or  persons,  or  other  event  or  events,  without 
inserting  in  such  policy  or  policies  the  name  or 
nai7ies  of  the  person  or  persons  interested  there- 1 
in,  or  for  what  use,  benetit,  or  on  whose  account,  ' 
such  policy  is  so  nuide  or  underwritten.  i 

3.  Tliat  in  all  cases  where  the  insured  hath 
an  interest  in  such  life  or  lives,  evont  or  events, 
no  greater  sum  shall  be  recovered  or  received 
from  the  insurer  or  insurers  in  such  life  or  lives,  '■ 
or  other  event  or  events. 

Jle/d,  affirming  the  judgment  below,  that  this  I 
statute  never  was  intended  to  prevent  a  person  ! 
from  eflfecting  a  bonajide  insurance  on  his  own 
life,  and  making  the  sum  insured  payable  to 
whom  he  pleases,  such  insurance  not  being  ' '  by 
way  of  gaming  or  wagering  "  within  the  mean- 
ing of  the  first  section  of  the  Act. 

Held,  also,  that  section  2  of  the  said  Act 
applies  only  to  a  policy  on  the  life  of  another, 
not  to  a  policy  by  a  man  on  his  own  life. 
The  North  American  Life  Am.  Co.  v.  Craigen, 

13  S.  C.  R.,  278. 

2.    Agent  of  life  Insurance  Company  — 

Competency  to  give  evidence  of  conversation 
with  deceased  insured — 4th  R.  S.,  c.  96.,  s.  41, 
same  as  5th  R.  S.,  c.  107,  a.  16 — The  agent  of  a 
Life  Insurance  Company  is  not  competent  to  give 
evidence  on  behalf  of  such  company  of  any  state- 


ments or  acknowledgmentH  of  tho  doceaseil  iimur- 
ed  in  an  action  by  his  executor  or  administrator 
against  such  coi,ipany,  under  4tli  Rev.  Stats.,  c. 
iMl,  H.  41. 

Wilkins,  J,,  ditxiutiwj. 
O'Doiinill  v.  Coiij'i'dnralion  Li/f  Ini,  Co., 

2  R.  &('.,. 170. 
Rcverseil  on  appeal  to  the  vSupreme  Court  of 
Canada. 

Cas.  Digest,  'JOS. 

3.  life  Insurance  policy— Assignment  of 

policy  directly  to  wife  of  insured  —  Title  not 
passed  —New  trial  ordered  —  Amendment  — 
Costa — R,  1*.  H.  effected  two  policies  of  insur- 
ance upon  his  life  with  the  defendant  company. 
Tho  first  for  JjKKHJ  payable  to  his  wife  ami 
children.  Tiio  second  for  $1, ;')()!)  was  payable  ti) 
his  executors,  a<lministrators,  or  assigns.  Prior 
to  his  death  li.  1'.  15.  indorsed  the  second  policy 
as  follows  ;— I  liereby  hand  over  to  my  wife,  liur 
maiden  name  being  S.  J.  .S,,  all  the  interest  in 
this  policy  for  the  benetit  of  herself  and  her 
children.  (Sgd.)  R.  P.  P..  Plaintitf  sued  on  llio 
two  policies  on  behalf  of  herself  and  her  cliil- 
(Iron. 

Htld,  that  she  was  entitled  to  recover  on  the 
first  policy  but  not  the  second. 

An  imperfect  assignment  from  a  husband  to  a 
wife  cannct  be  regarded  as  a  declaration  of  trust 
in  her  favor. 

The  assigmnent  of  the  second  policy  having 
been  made  directly  to  the  wife  was  invalid  to 
pass  the  title  ;  and  if  tiie  policy  was  held  by  the 
representative  of  tho  husband  in  trust  for  tiie 
wife,  the  title  would  Ijc  solely  in  him  and  he  only 
would  have  the  right  to  bring  tho  action 
for  the  amount  and  give  a  valid  discharge,  as- 
suming that  a  trust  in  favor  of  the  children 
could  be  created  by  such  an  instrument,  litere 
was  no  trustee,  as  the  wife  could  not  take  a  valid 
title  from  her  husband,  and  she  could  not  siistaiu 
an  action  as  trustee  for  the  children  until  slie 
had  been  appointed  by  the  Court. 

A  new  trial  was  ordered  on  the  second  policy 
the  plaintiflF  to  have  the  right  to  add  parties 
within  a  time  fixed  without  payment  of  costs. 
The  costs  of  the  argument  to  abide  the  final 
result. 

Bliss  V.  The  ^tna  Life  Insurance  Co., 

7  R.  &  G.,  363. 

4.  Endowment  policy— Amount  of  liisur> 

ance  payable  to  insured  after  30  years,  or  in 
the  event  of  death  to  his  father— Construction 
of  contract— Payment  of  premiums  by  insured 
raises  no  equity  in  favour  of  his  representa- 
tives— J.  A.  M.  applied  for  and  obtained  a  policy 
of  insurance  upon  his  life  for  the  sum  of  ^2500, 


713 


INSURANCE,  LIFE. 


714 


thi*  iinioiint  insured  under  tlio  tcrnm  of  tliu  policy 
bi'ing  niiidt'  {xiyiililc!  to  J.  A.  M.  at  tliu  I'lid  of 
thirty  yt'iun,  if  licHliould  livoso  long,  otiiurwinu, 
to  liii*  fatliiT,  \V,  n.  M,,  wlioHu  niiniu  wiiH  Hignud 
to  tilt' apiilication.  At  tliu  tinio  tliu  inHiirance 
WHS  flFi'Lted  J.  A.  M.  wus  mnnairii'd,  liut  muIimu- 
(|ucntly  niai'i'iud  tliu  plaiutitF,  l>y  wliom  liu  Inid 
i»8Uf.  All  tliu  j)rt;ruiiimH  wuic  paid  liy  .J. A.M., 
mill  tliL'i'u  WiiH  no  iiiilL'litL'diu'HH  on  hit*  part  to 
liis  father.  'I'hu  lattiT  dii'd  in  .luno,  IH74,  and 
liiH  estate  wiiH  adniiniHtured  and  tliu  tinal 
nct'ounts  paiiHud  in  Xovx'nil)er,  1877.  Aftor  the 
(U'afli  of  liiN  father,  d.  A.  M.  had  some  cones- 
jKiiidi'iiL'o  with  tho  company  with  the  \'icw  of 
having  the  policy  altered  ho  ati  to  make  tho 
luiiiiiint  insured  payaMe  to  hix  wife,  hut  the 
c'lmii^'e  was  not  completed,  aa  the  company  re- 
quired a  release  from  persons  interestetl  in  the 
father's  estate,  and  some  of  these  were  infants. 
On  the  death  of  the  insured,  the  defendant,  the 
Biirviving  administrator  of  W.  15.  \V.,  denuuxled 
and  was  paid  hy  the  insurance  company  tho 
amount  of  tho  policy,  and  an  action  waa  there- 
ujMin  hrought  by  the  widow  and  atlministratrix 
of  .r.  A.  .M.  to  compel  the  defendant  to  pay 
over  the  money  so  received,  on  the  ground  tliat 
the  amount  l)ulonged  to  the  estate  of  J.  A.  M., 
anil  not  to  the  estate  of  liis  fatlier. 

Ill  III,  that  there  was  a  clear  contract  between 
J,  A.  M.  and  W.  H.  \V.  on  the  one  part,  and 
the  insurance  company  on  the  other,  that  in  the 
event  which  had  happened  the  insurance  should 
be  paid  to  the  representatives  of  \V.  B.  W. 

AUo,  that  the  payment  of  the  premiums  by 
J.  A.  M.  raised  no  eijiiity  in  favour  of  the  plain- 
tiff as  his  representative. 

Mumford  v,  Mumford,  7  R.  &  G.,  210  ; 

7C.  L.  T., :«.-.. 

5.  Mistake  In  amount  of  premium — 

Reforming  a  policy  of  insurance— Where  the 

agent  of  a  life  insurance  comjiany  continued  for 
Boiiie  years  to  receive,  by  his  own  mist.ike, 
premiums  from  a  party  assured,  at  a  mucli  less 
rate  than  that  established  in  the  published  tallies 
of  the  company,  and  the  plaintifT  had  every 
opportunity  of  examining  and  did  e,\ainine  such 
tallies,  and  probably  was  aware  of  the  mistake, 
HiM,  in  an  action  by  the  insured  for  partici- 
pation in  the  profits,  that  the  plaintiff  could  not 
recover,  and  that  the  company  were  entitled  to 
have  the  policy  reformed. 

Belcher  v.  International  Life  Anxurancc 
Society  of  London,  Cochran,  .3.5. 

6.  Policy— Delivery  of— Not  countersign- 
ed, effect  of — An  action  was  brought  on  a  policy 
of  life  insuriuce  on  the  margin  of  which  was  a 


blank  printed  a*  follow*  ;  "  Thiit  p<iliey  is  not 
valid  unlesti  countersigned  by  ,  ,  .  agent  at 
.  .  .  counterHigned  this  .  .  ,  day  of  .  .  . 
187  ..  .  agent."  The  Act  incorporating  tho 
defendant  (Vimpaiiy  made  the  tiigiuhture  of  the 
President  or  V'ieel'rt'sident  ami  General  .Manag* 
er,  with  the  common  seal  of  tiie  association  n 
sutlicient  execution  of  the  policy.  The  policy 
was  thus  executed  but  not  countersigned.  Tho 
agent  swore  that  it  had  never  been  delivered  aa 
a  policy,  but  had  merely  been  handed  to  tho 
parly  on  whoso  life  it  waa  to  be  ctFected  for 
perusal,  and  tliat  the  premiinn  had  not  been  ten- 
dered until  after  the  deatli  liy  the  plaintiff,  ffo 
also  swore  that  although  the  policy  was  executed 
in  October,  187'J,  it  had  remained  in  his  posses- 
sion  until  .May,  187.1,  but  plaintiff  swore  that  ho 
had  seen  it  in  the  hands  of  the  deceased  in 
November,  1S7'2,  and  twc  other  persons  gave 
similar  evidence,  besides  which,  there  were  cir- 
cumstances in  the  case  favorable  to  plaintiff's 
statement.  The  j)olicy  recited  that  tho  pre- 
iniun)  had  been  paid. 

I/cld,  that  on  tho  weight  of  evidence  as  to 
delivery  of  the  policy  tho  verdict  for  plaintiff 
must  be  sustained,  that  the  condition  as  to  coun- 
tersigning was  not  warranted  by  tho  charter  of 
the  ('onii)any,  and  even  if  it  were  so  warranted, 
would  be  entirely  inoperative  being  only  a  mean- 
ingless blank  form  on  the  margin  without  signa- 
ture or  seal  and  not  embodied  in  tho  policy. 
O'Donnell  v.  Confederation  Life.  lux.  Co., 
'2R.  &  U.,'2.'}1  ;  1  C.  L.  T.,  711. 

Hi.ld,  on  the  evidence,  Fournier  and  Henry, 
JJ.,  diiHcntinij,  that  the  policy  had  not  l)een 
delivered  to  the  assured  as  a  complete  instru- 
ment and,  therefore,  that  the  appeal  should  bo 
allowed. 

Per  G Wynne,  J., — The  instrument  was  de- 
livered as  an  escrow  to  the  agent,  not  to  be 
delivered  as  a  binding  policy  to  W.  O'l).  until 
the  premium  should  be  paid,  and  imtil  the  agent 
sliould,  in  testimony  thereof,  countersign  tho 
policy,  and  there  was  no  suHicient  evidence  to 
divest  the  instrument  of  its  original  character  of 
an  escrow,  and  to  hold  the  defendants  bound  by 
the  instrument  as  one  completely  executed  and 
delivered  as  their  deed. 

Confedi-.ration  Life  Am.  Co.  v.  O'Donnell, 
10  8.  C.  R.,92;  2  C.  L.  T.,  337. 

On  the  new  trial  of  this  cause  the  jury  found 
that  the  premium  had  been  paitl  and  the  policy 
delivered  to  the  deceased  insured  as  a  completed 
instrument,  and  a  verdict  was  entered  for  the 
plaintiff  and  atfirmed  by  the  Supreme  Court  of 
Nova  Scotia. 


715 


INSURANCE,  MARINE. 


716 


On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  below,  Ritchie, 
C.  J.,  and  G Wynne,  J.,  dissenting,  that  the 
necessity  of  cou'itersigninj  by  the  agent  was  not 
a  condition  prb^edent  to  the  validity  of  the 
policy,  and  the  jury  having  found  that  the  pre- 
mium was  paid,  their  verdict  should  stand.  Th", 
judgment  on  the  former  appeals  in  this  case 
was,  on  this  point,  substantially  adhered  to. 
Confederation  Life  Ass.  Go,  v.  O'Donnell, 

1.3  S.  C.  R.,218; 
9C.  L.  T.,211. 


meeting  of  the  company  iu  March,  1837,  it  was 
resolved  that  the  plaintiff  had  a  good  claim. 

Held,  that  although  plaintiff  could  not  recover 
on  the  policy,  he  "ould  recover  on  a  count  added 
by  leave  setting  out  that  the  defendants  had 
contracted  to  furnish  a  policy  such  as  the  com- 
pany had  been  in  the  practice  of  furnishing  at 
the  date  of  the  application,  and  had  neglected 
and  refused  so  to  do  and  to  insure  his  vessel 
thereby. 

Robertson  v.  Dudman,  1  R.  &  C,  50. 


INSURANCE,  MARINE. 
1..   Abandonment  —  Total  loss— When  a 

cargo  of  salt  lish  insured  under  a  policy  contain- 
ing the  ordinary  memorandum  clause,  was 
injured  by  salt  water,  and  the  vessel  was  so 
damaged  as  to  be  forced  into  a  port  of  refuge, 
from  whence  she  could  not  reach  her  port  of 
destination,  without  sucli  a  delay  as  would  have 
occasioned  the  total  destruction  of  the  cargo  the 
owners  may  abandon  and  claim  for  total  loss. 
The  fact  of  the  master  being  consignee  and 
selling  at  another  than  the  port  of  refuge  will 
not  destroy  owner's  claim. 
Fairbanks  et  al.  v.  Union  Marine  Ins.  Co., 

2  Thorn.,  67. 

2.  Action  for  not  furnisbInK  policy  con- 
tracted for — Plaintiff,  wlio  was  a  member  and 
director  of  the  Commercial  Insurance  Co'y, 
applied  for  a  policy  of  insurance  on  the  "  Rising 
DaMTi,"  and  the  application  was  entered  27th 
Oct.,  186.5,  in  the  book  kept  by  the  company,  of 
which  defendant  was  a  member,  and  one  Patch, 
a  broker,  was  Secretary.  On  the  31st  Oct., 
186.5,  there  was  an  entry  in  the  books  of  the 
following  resolution,  "  not  allowed  under  policy 
to  proceed  to  any  port  in  South  Greenland." 
Plaintiff  had  called  on  the  date  of  the  application 
to  see  if  it  was  accepted,  and  asked  the  broker 
if  anything  more  was  to  be  done,  to  which  the 
broker  replied,  "  no,  your  vessel  is  insured,"  but 
plaintiff  did  not  get  his  policy  until  the  winter 
of  1866,  and  did  not  then  open  it,  but  upon  subse- 
quently examining  it  found  that  it  contained  the 
Greenland  clause,  of  which  he  had  never  before 
heard.  Notice  had  been  given  to  him  that  the 
directors  would  not  insure  a  vessel  to  Greenland, 
but  not  until  after  the  vessel  had  sailed,  and  on 
obtaining  a  copy,  plaintiff  remarked  to  the 
broker,  "that  does  not  apply  to  my  case,"  to 
which  the  broker  replied,  "  no  it  does  not."  The 
vessel  was  lost  in  April,  1866,  and  at  a  general 


3.    Affreement— Insurance  on  voyage- 
Insurance  on  time— An  agreement  contained 
the  following  covenant:    "And  whereas,   the 
said  R.  I.  Hart  and  W.  Hart  (defendants)  have 
agreed  and  do  hereby  agree,  in  consideration  of 
the  said  I.  W.  Young  and  I.  Hart  (plaintiffs) 
executing  and  delivering  to  them  a  bill  of  sale 
of  their  portion  of  said  vessel  (which  was  done) 
to  take  from  said  Edward  Vigneaux  (who  was 
purchasing  her)  new  notes  for  the  said  purchase 
;  money,  and  also  have  agreed  to  keep  the  said 
I  brigantine  insured  for  the   full  amount  of  tiie 
purchase  money,  and  to  obtain  from   the  said 
Edward  Vigneaux  a  collateral  security  or  lien 
on  the  said  vessel  in  tlie  shape  of  a  mortgage 
until  the  said  purchase  money  shall  liave  lieen 
fully  paid,"  "  and  also  in  the  event  of  the  said 
brigantine  being  lost  at  any  time  previous  to  the 
I  time  of  payment  of  the  last  instalment  of  pur- 
I  chase  money,  to  pay  over  to  plaintiff  one  luilf  of 
!  the  insurance  money  due  en  said  vessel  free  of 
I  conimissiona." 

I      Held,  that  an  insurance  on  a  voyage  or  an 

adventure  in  wliich  plaintiffs,  who  had  ceased  to 

i  own  any  portion  of  the  vessel  liad  no  interest^ 

and  which  niiglit  not  be  available  to  plaintiff  did 

not  satisfy  the  covenant,  but  tiiat  it  called  for 

I  "  insurance  on  time." 

Younij  et  al.  v.  Hart  et  al.     Judijmeut  of  the 
I  Court  delivered  by  Wilkins,  J.,  11th  Awjiist, 

1S75. 

4.  Average  adjustment  of-Foreign  ad- 
justment, proof  of— Time  policy,  effect  of— 
Defendant,  a  British  subject  resident  in    this 

'  province,  insured  his  brigantine  on  a  time  policy 
with  the  plaintiffs.     Tlie  vessel  while  on  a  voyage 

[  from  Liverpool,  G.  B. ,  to  New  York  sustained 
damage  wliich  was  the  subject  of  general  average. 
The  average  was  adjusted  at  the  port  of  destiii- 

'  ation  and  was  pleaded  by  <lefendant  as  a  set  off 
to  an  action  on  the  premium  note.     It  appeared 

■  that  the  average  as  adjusted  at  New  York 
amounted  to  a  larger  sum  than  if  adjusted  in 
Nova  Scotia. 


717 


INSURANCE,  MARINE. 


718 


Held,  that  the  underwriter  is  bound  to  reim  ■ 
burse  all  such  general  average  charges  aa  have 
been  assessed  on  the  insured  by  a  foreign  adjust- 
ment if  correctly  settled  according  to  the  law 
of  the  port  of  adjustment. 

Alio,  that  a  time  policy  unless  there  be  special 
restrictions  confers  the  pover  of  sailing  from 
any  port  domestic  or  foreign  and  in  this  province 
foreign  employment  must  be  understood  to  be  as 
much  in  the  contemplation  of  the  owner  and  in- 
surer as  domestic  use. 

Semhle,  that  the  foreign  adjustment  to  be 
binding  must  be  clearly  proved  to  have  been 
made  iu  strict  conformity  with  the  laws  and 
usages  of  the  foreign  port  and  would  doubtless  be 
set  aside  or  corrected  for  fraud  or  gross  error. 
A  von  Marine  Inn.  Co.  v.  Barteaux, 

2N,  S.  D.,  195. 

5,  Broker,  agent  of  plaintiff— Misrepre- 
sentation of  voyage— Notice  of  abandonment 
necessary  although  suit  is  for  not  issuing 
policy— Plaintiff  applied  to  one  Haley,  who 
acted  as  a  broker  for  the  .Shipowners'  As- 
sociation of  Windsor,  and  also  for  the  defen- 
dant company  doing  business  at  Halifax,  for 
insurance  on  one-fourth  interest  in  a  vessel  on  a 
voyage  from  Cochin  to  New  York  via  Colombo 
aud  Alipee.  The  broker  replied  that  the  "  Ship- 
owners' Marine  "  did  not  care  for  the  risk,  but 
lie  thought  he  could  place  her.  Plaintiff  wrote 
him,  saying  in  substance  : — "  You  may  place 
insurance  on  Charlie  at  your  figures.  I  think 
it  sliould  be  done  for  tliree  per  cent,  but  do  tlie 
Ijest  you  can.  Let  me  know  as  soon  as  possible." 
Q'he  broker  then  applied  to  the  defendant 
company  for  insurance  on  plaint  iflPs  vessel 
"  Cochin,  Alipee  and  Xeio  York."  but  tlie  vessel 
sailed  aud  was  lost  on  a  voyage  from  Cochin  via 
Colombo  and  Alipee  to  New  York. 

Held,  Tiuvt  the  broker  was  the  plaintiflPs  agent 
and  inasmuch  as  the  insurance  he  applied  for 
was  on  a  different  voyage  from  that  on  which 
tlie  vessel  sailed  and  wa?  lost,  the  plaintiff  must 
fail. 

Httd,  further,  that  notice  of  abandonment 
was  necessary,  although  the  suit  was  brought, 
not  on  the  policy  of  insurance,  but  for  not 
issuing  a  policy. 

Dickie  v.  Merchants'  Marine  Inmrance  Co. , 
4R.  &G.,244. 

6.  Concealment  —  Knowledge  of  defend- 
ants before  issuing  policy  —  Explanation  of 
minutes  by  Judge  —  When  plaintiffs  applied 
throuijli  their  agent  for  insurance  on  goods,  the 
defendant  was  unaware  of  a  disaster  to  the  ship 
known  to  the  plaintiP.s,  but  not  to  the  agent 


who  made  the  application.  Befare  the  policy 
issued,  defendant  became  aware  of  the  disaster 
to  the  ship,  and  the  Judge  at  nisi  prius  found 
chiefly  upon  the  defendant's  own  admissions 
that  he  did  not  issue  the  policy  because  of  his 
supposed  obligation  under  the  slip,  but  elected 
to  take  the  risk  notwithstanding  the  disaster, 
of  which  he  had  become  aware. 

Held,  Weatherbe,  J.,  dissenting,  that  the 
plaintiff  could  recover,  notwithstanding  the  con- 
cealment at  the  time  of  the  application. 

Held,  that  the  Court  in  banco  could  receive 
the  explanation  of  the  Judge  as  to  the  nature  of 
the  question  to  which  a  statement  of  defendant 
on  the  minutes  of  evidence  was  an  answer. 
Royal  Canadian  Ins.  Co.  v.  Smith, 

5R.  &G.,322. 

On  appeal  to  the  Supreme  Court  of  Canada. 
The  appellant  (defendant)  was  a  member  of 
an  insurance  association,  doing  business  at  Hali- 
fax, known  as  the   Halifax  Marine  Insurance 
Association. 

On  the  1.3th  August,  1880,  the  respondent 
company  (plaintiffs)  through  J.  Scott  Mitcliell, 
their  agent,  applied  to  the  association  for  insur- 
ance on  the  cargo  of  the  steamship  "  W^alden- 
sian,"  on  a  voyage  from  Montreal  to  Glasgow, 
via  port  or  ports,  and  the  risk  was  accepted  the 
same  day  by  the  appellant  and  otlier  under- 
writers, but  no  policy  was  issued  or  pren;ium 
paid  at  the  time. 

The  "  Waldensian  "  left  Montreal  on  the  llth 
August,  1880  ;  she  got  aground  that  afternoon 
about  four  o'clock,  but  succeeded  in  getting  off 
the  same  day  and  proceeded  to  Quebec,  where 
she  arrived  about  six  o'clock,  leaking  badly,  and 
was  there  grounded  to  prevent  furtlier  damage 
to  cargo. 

Tlie  re.ipondent  company  knew  on  the  r2th  day 

of  August  of  the  accident  to  the  steamsliip,  but 

this  fact  was  not  disclosed  to  the  underwriters 

when  the  insurance  was  applied  for  on  the  13th, 

thi!  day  following.     The  appellant  became  aware 

j  of  the  accitlent  a  day  or  two  after  the  application 

for  insurance,  and  a  policy  was  after  tliat  issued 

1  to  respondent  company,  bearing  date  the  13th 

:  August,  1880,  (the  date  of  the  application),  and 

I  the  premium  settled  in  account  with  tlie  broker 

I  of  the  association,  of  which   appellant   was  a 

member. 

i      Appellant  contended  there  was  no  evidence 
;  whatever  that  the  appellant,  or  any  of  the  under- 
writers, or  their  broker,  knew  at  the  time  that 
the  policy  was  issued  or  premium  paid  that  the 
;  accident  was  known  to  the  respondent  comjwny 
at  the  time  the  insurance  was  effected,  and  con- 
cealed from  the  underwriters. 
This  action  was  brouglit  to  recover  for  damage 


719 


INSURANCE,  MARINE. 


720 


done  to  the  cargo  by  the  leaking  of  the  ateamship 
in  consequence  of  her  getting  on  shore  as  above 
stated.  The  appellant  pleaded  among  other 
things,  that  the  respondent  company  conceiiled  ! 
from  appellant  a  fact  known  to  respondent  and 
material  to  the  risk,  and  unknown  to  the  appell- 
ant, viz. ,  that  the  steamship  iiad  been  on  shore  j 
after  leaving  Montreal.  j 

The  respondent  replied  that  aftev  appellant  \ 
became  aware  of  the  facts  alleged  in  the  said 
pleas,  he  took  the  premium  and  issued  the  policy.  ' 

The  cause  was  tried  before  Mr.  Justice  Rigby,  j 
at  Halifax,  on  7th  Nov.,  188.S,  who  found  that 
when  the  insurance  was  applied   for,  and  the 
contract    therefor    completed,    the   respondent  \ 
company  was  aware  of  tlie  facts  above  stated, 
and  concealed  them  from  appellant,  also  that  i 
they  were  not  then  known   to  appellant,  and 
were  material  to  tlie  risk.     He  also  found  that 
before  the  policy  was  issued  or  premium  paid  | 
the  appellant  became  aware  of  said  facts,  and 
elected  to  treat  the  contract  as  binding,  and  he 
found  a  verdict  for  the  plaintiffs  (the  respondents)  { 
for  the  amount  claimed.  j 

A  rule  nisi  to  set  aside  the  verdict  was  ilis- 1 
chargedby  the  Court,  Weatherbe,  J.,  ditisentintj. 

A  rule  absolute  discharging  the  rule  nisi  was 
granted  on  the  '22nd  day  of  April,  1884,  from 
wliich  rule  the  appellant,  Allison  Smith,  ap- 
pealed. 

Held,  that  the  evidence  showed  that  at  the 
time  of  payment  of  the  premium  the  appellant 
did  not  know  that  the  accident  was  known  to 
the  respondent  company,  and  the  policy,  there- 1 
fore,  was  void  for  concealment  of  material  ftiots 
and  there  could  be  no  waiver  of  the  omission 
to  communicate  the  information  material  to  the 
risk,  for  the  appellant  could  not  waive  that 
which  l;e  did  not  know. 

Smith  v.  The  Royal  Canadian  Inn.  Co., 
18th  November,  1SS4,  Cas.  Digest,  217. 


1,   Commencement  of  risk— Indorsement 

on  policy  construed  with  policy— Varying 
risk — Under  a  policy  to  cover  a  vessel  from  the 
"  commencement  of  loading,"  and  the  goods 
froni  "  the  loading  thereof  on  board"  at  a  parti- 
cular place  the  risk  will  commence  at  the  sailing 
from  thai  place,  although  the  vessel  was  loaded 
prior  to  her  arrival  at  the  terminun  a  quo,  pro-  ; 
vided  there  is  anything  to  indicate  that  a  prior  ! 
loading  was  intended  by  the  parties  to  the 
policy. 

Permission  indorsed  on  a  policy  of  insurance 
subsciiuently  to  its  execution  <uul  prior  to  the 
commencement  of  the  risk,  permitting  a  vessel 
for  an  additional  premium  to  use  a  port  out  of 
the  course  of  the  voyage  previously  insured  in- 


cludes permission  to  take  in  cargo  at  that  port 
but  does  not  alter  the  termini  of  the  original 
voyage.  Under  such  circumstances  the  policy 
and  memorandum  will  be  taken  together  and 
receive  a  reasonable  construction  according  to 
the  circumstances  and  course  of  the  voyage. 

A  transaction  occurring  prior  to  the  arrival  of 
the  vessel  at  the  lerminun  a  quo,  by  which  her 
arrival  at  that  termimifi  was  not  delayed  nor  the 
risk  varied  nor  increased,  held  not  to  vitiate  the 
policy. 

Bliss,  J.,  and  Uodd,  J.,  dinxentiinj. 
Creiyhlou  v.  Union  Marine  Inn.  Co.,  James,  195. 

8.  Condition  as  to  prior  insurance  — 

Plaintiff's  policy  of  marine  insurance  contained 
a  condition  that  if  the  insured  had  made  any 
other  insurance  on  the  property  prior  to  the 
date  of  the  policy,  the  insurers  would  be 
answerable  only  for  so  much  as  the  amount  of 
such  prior  insurance  should  be  deticient  towards 
fully  covering  tlie  premises  thereby  insured. 
It  appeared  to  the  Court  that  under  prior  insur- 
ances the  plaintiff  had  been  fully  indemnified, 
and  the  verdict  for  the  plaintiff  was  accordingly 
set  aside,  with  costs. 

Kenny  v.  Union  Marine  Ins.  Co., 

1  R.  &G.,313. 

9.  Conditions  limiting  time  to  bring 

action— Time  of  filing  claim — Proof  of  breach 
of  warranty — In  an  action  on  two  policies  of 
insurance  issued  by  the  defendant  con)pany,  on 
the  hull,  materials,  &o.,  and  on  freight  on  board 
the  schooner  "  Marion  Robertson,"  at  and  from 
Charlottetown,  P.  E.  I.,  to  St.  Johns,  N.  F., 
the  defendant  relied,  (1)  on  a  condition  that  no 
suit  or  action  should  be  sustainable  unless  com- 
menced within  twelve  months  next  after  the 
deposit  of  the  claim  for  loss  or  damage  at  tlie 
ofhce  of  the  assurers  ;  and  (2)  on  an  alleged  vio- 
lation of  a  warranty  that  the  vessel  would  sail 
on  her  voyage  not  later  than  the  3rd  day  of 
December,  1882. 

The  vessel  set  sail  on  her  voyage  on  the  3rd 
December,  1882,  and  was  cast  away  on  one  of 
the  islands  of  Mifjuelon  Group,  and  became  a 
total  loss  on  the  9th  of  the  same  month.  A 
protest  was  prepared  by  the  French  officials 
there,  in  which  the  date  of  sailing  was  incor- 
rectly given  as  Decrmber  4th.  Subse(]uently, 
on  January  22nd,  1883,  a  protsst  was  entered 
by  the  master,  before  a  notary,  at  B;  c:ouch»;, 
N.  B.,  to  which  place  he  had  returned,  in 
which,  as  it  was  partly  prepared  from  the 
French  protest,  the  error  as  to  date  of  sailing 
was  repeated. 

The  protest  last  prepared  was  received  by  the 


721 


INSURANCE,  MARINE. 


722 


company  on  January  24th,  1883,  in  support  of 
plaintiff's  claim  under  the  policies.  A  letter 
was  received  by  the  company  from  plaintiffs 
about  the  same  time,  in  which  the  date  was 
correctly  given.  The  defendant  refused  to  admit 
any  claim,  on  the  ground  that  the  papers  sub- 
mitted allowed  a  breach  of  the  warranty. 

On  the  26th  October,  188.3,  and  on  the  4th 
February,  1884,  papers  rectifying  the  mistake 
as  to  the  date  of  sailing,  which  had  been  ver- 
bally explained  previously,  were  deposited  with 
the  company. 

The  action  was  commenced  on  the  5th  April, 
1884. 

Held,  per  McDonald,  C.  J.,  McDonald,  J., 
concurring — That  the  period  of  twelve  months 
from  the  deposit  at  the  office  of  the  insurers  of 
the  claim  for  loss  or  damage,  which  concluded 
tlie  plaintiffs'  right  to  recover,  must  be  consid- 
ered to  date  from  the  filing  of  the  amended 
proofs. 

/'e»- Ritchie,  J.,  Smith,  J,,  concurring — That 
the  company  havmg  been  informed  by  letter  by 
the  plaintiffs  prior  to  February,  1884,  of  the 
correct  date  of  sailing,  the  statement  in  the 
protest  could  not  be  considered  misleading,  and 
tlie  preliminary  proofs  at  that  time  being  suffi- 
cient to  enable  plaintiffs  to  recover,  the  time 
hmited  for  bringing  the  action  had  expired  be- 
fore the  suit  was  commenced. 

Aho,  that  defendant  would  have  to  prove, 
and  might  waive  a  breach  of  the  warranty. 

Al-<o,  that  even  if  the  protest  admitted  a 
breach  of  warranty,  it  could  not  be  given  in 
evidence  to  prove  that  plea. 

liohtrUoH  et  al.  v.  Piujh,  20  N.  S.  R., 

(8  R.  &G.),  15. 

On  apjual  to  the  Supreme  Court  of  Canada, 
Hdd,  affirming  the  judgment  below,  that  there 
was  a  compliance  with  the  warranty  "to  sail 
not  later  than  3rd  December,  1882,"  in  the  policy 
on  liie  hull,  but  not  with  the  warranty  "  to  sail 
from  Charlottetown  not  later  than  3rd  December, 
in  the  policy  on  the  freight. 

//(/(/,  rt/.<o,  that  the  protest  was  a  claim  for 
loss  or  damage  within  the  meaning  of  the  condi- 
tion in  the  policy,  and  the  action  was  too  late. 
Kohertson  v.  Pu(ih,  15  S.  C.  R.,  706  ; 
9C.  L.  T.,  17. 

10.    Construction  of  exceptions  in  policy 

-"  In"  substituted  for  "of"-  Defendants  issued 
a  policy  of  insurance  containing  a  condition  that 
the  plaintiff  was  not  to  use  the  ports  of  Big  Glace 
Bay,  Schooner  Pond,  Blockhouse  Mines,  or 
Bridgeport,  C.  B.,  except  during  June,  July  and 
August.  The  loss  occui  red  in  October,  at  a  place 
kno^v-n  as  "  the  Port  of  Caledonia,"  on  the  same 


coast,  and  abovit  three-quarters  of  a  mile  from 
the  workings  of  Big  Glace  Bay.  The  "port  of 
Big  Glace  Bay  "  had,  at  the  date  of  application, 
and  of  the  issuing  of  the  policy,  ceased  to  exist 
as  a  port  for  vessels,  and  the  Port  of  Caledonia, 
which  was  within  the  limits  of  the  Bay,  had 
been  substituted  therefor. 

Held,  that  the  loss  was  within  the  risk  ex- 
cepted, and  that  the  policy  might  reasonably  be 
construed  as  if  the  word  "  in  "  were  substituted 
for  the  word  "of." 

Campbell  v.  Canada  /»(•■*.  Union, 

3R.  &C.,21. 

11.  Construction  of  policy— A  policy  of 

insurance  on  freight  contained  the  following 
words  : — "  Which  insurance  is  hereby  declared 
to  be  upon  freight  on  coal  under  deck,  valued  at 
S6000,  in  the  ship  or  vessel  called  the  Maggie 
P.  S.  Lord,  whereof,  etc.,  lost  or  not  lost,  at  and 
from  Pictou,  to  and  at  Aspinwall.  And  these 
insurers  do  promise  and  agree  that  the  insurance 
aforesaid  shall  commence  at  and  from  as  above, 
and  .■ihall  coiitimie  upon  the  freight  and  goods, 
or  merchandise  on  board  thereof  from  the 
loadimj  of  the  said  fjooilx  or  merchandise  on  board 
of  the  said  ship  or  vessel  as  above,  and  until  the 
said  (joods  or  merchandise  be  dinchari/ed  and 
safely  landed  at  Anpinu-all  ax  above," — the  poliny 
being  on  a  printed  foriii,  intended  to  be  adapted 
to  insurance  upon  either  freight  or  goods,  or 
both,  an<l  containing  all  the  words  necessary  to 
be  used  in  separate  policies  upon  either,  the 
words  italicised  above  being  printed. 

Held,  that  the  words,  "shall  continue,  etc., 
from  the  loading  of  the  said  goods,"  being  in- 
tended to  apply  to  insurance  on  cargo,  could  not 
govern  the  previous  words,  "  shall  commence  at 
anil  from  as  above,"  that  is,  "at  and  from  Pictou," 
and  that  the  vessel  insured  being  under  a  charter 
party,  and  having  broken  grounds  at  Pictou, 
and  taken  in  a  part  of  her  cargo  when  lost  by 
one  of  the  perils  insured  against,  the  under- 
writers were  liable  in  an  action  upon  the  policy. 
Lorn  v.  Grant  ttal.,  1  R.  &  C,  120. 

12.  Construction  of  policy— Warranty— 

No  other  insurance — An  application  for  a  policy 
of  insurance  on  a  vessel  contained  the  words 
written  on  its  face,  "  No  other  insurance"  and 
ihe  policy  issued  on  the  application  so  made 
contained  the  words,  "  Warranted  no  other 
insurance. " 

Held,  McDonald,  C.  J.,  dissentiwj,  that  these 
words  meant  that  there  should  be  no  other  in- 
surance ( n  the  vessel  during  the  continuance 
of  the  risk. 

Bn.ler  v.  Merchants'  Marine  Ins.  Co., 

5R.  &G.,  301. 


V23 


INSURANCE,  MARINE. 


724 


On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  below,  that  the 
words  "no  other  insurance,"  and  "warranted 
no  other  insurance,"  meant  that  there  should  be 
no  other  insurance  on  tlie  vessel  during  the  con- 
tinuance of  the  risk. 

Butler  V.  Merchant s'  Marine  Ins.  Co., 
17th  February,  1SS5,  Cas.  Digest,  221. 

13.  Construction  of  policy— Prohibition 

of  St.  Lawrence— Meaning  of  word  "  port" — 
The  policy  of  marine  insurance  sued  on  contain- 
ed a  prohibition  to  use  the  Gulf  of  St.  Lawrence 
between  the  5th  December  and  the  5th  of  April, 
without  additional  premium.  A  subsequent 
clause  ran  "not  to  use  the  ports  of  Schooner 
Pond,  Blockhouse  Mines  and  Chimney  Corner, 
except  during  the  months  of  June,  July  and 
August,  the  use  of  such  ports  not  to  vitiate  this 
policy,  except  during  the  time  such  ports  are 
used." 

Held,  that  this  exception  referred  only  to 
the  ports  named,  and  not  to  the  waters  of  the 
St.  Lawrence,  and  that  the  use  of  the  waters 
of  the  St.  Lawrence  during  the  prohiliited 
period  avoided  the  policy. 

Oiven  V.  Ocean  Mutual  Marine  Int.  Co  , 

6R.  &G.,495; 
6C.  L.  T.,  540. 

14.  Construction  of  policy  and  Indorse- ' 

ments  on — Must  be  read  together — An  action 
is  not  maintainable  as  for  a  total  loss  of  freight 
when  it  appears  that  the  vessel  might  have  been 
repaired  at  a  reasonable  cost  within  a  reasonable 
time,  and  conveyed  a  portion  of  the  cargo  to  the 
port  of  destination.  Where  a  policy  of  insur- 
ance was  issued  on  frieght  on  a  voyage  "at  and 
from  Buenos  Ayres  to  Matanzas,  Cuba"  and 
there  was  an  indorsement  on  the  policy  :  Per- 
mission granted  under  tlii."  policy  for  "barque 
Daniel "  to  proceed  from  Monte  Video  to  Car- 
denas, calling  at  Barbadoes  for  orders  instead  of 
Buenos  Ayres  to  Matanzas. " 

Held,  tliat  the  policy  and  indorsement  must 
be  read  together,  and  that  so  read  the  voyage 
insured  must  be  taken  to  have  been  a  voyage 
from  Buenos  Ayres  to  Cardenas  with  liberty  to 
go  to  Monte  Video  as  an  intermediate  port. 

Wilton  V.  The  Merchants'  Marine  In».  Co., 

3  N.  S.  D.,  81. 

15.  Constructive  total  loss— While  on  a 

voyage  from  Boston  to  St  Pierre,  the  vessel 
insured  by  the  defendant  Company  mis-stayed 
and  struck  off  Isle  Madame.  During  the  night 
the  tide  fell  and  the  vessel  was  thrown  over  on 
her  side  and  damiVgeJ.     Surveyors  reoomineuded 


that  she  should  i.  stripped  and  sold.  This  was 
done  and  the  vessel  realized  $140.  The  purchaser 
got  her  oflF  and  after  an  expenditure  of  82,000, 
more  or  less,  including  the  price,  ran  her  for 
two  years,  at  the  end  of  which  time  she  was  sold 
for  $1800  ;  but  at  the  time  of  action  brought  she 
was  lying  in  Arichat  Harbor  (to  which  she  had 
been  taken)  locked  in  ice  and  unrepaired.  There 
was  evidence  of  negligence  and  want  of  energy 
on  the  part  of  those  in  charge  but  not  amounting 
to  barratry.  The  Court,  having  power  to  draw 
inferences  of  fact  as  a  jury,  sustained  the  finding 
of  the  Judge  in  favor  of  plaintiff  as  tor  a  con- 
structive total  loss. 
Almon  et  al.  v.  The  Providence  Washington 
Insurance  Company,  4  R.  &  G.,  .533. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  below,  Gwynne, 
J.,  dissenting,  that  the  vessel  was  not  a  con- 
structive   total    loss.     Providence     Washimjtoti 
Ins.  Co.  V.  Corbett,  9  S.  C.  R.,  256,  approved, 
The  Providence  Washington  Ins.  Co.  v.  Almon, 
17th  February,  ISS:',  Cas.  Digest,  220, 


16.   Constructive  total  loss— A  vessel  was 

stranded  at  the  mouth  of  Shelburne  liarl)or, 
which  she  was  seeking  to  enter  under  stress  of 
weather,  being  on  a  voyage  from  Sydney,  C.  B., 
to  Boston.  The  harbor  was  fi'ozen  for  four  miles 
from  tlie  town,  and  the  hull,  rigging  and  liaw- 
sers  were  incumbered  with  ice.  Her  steoring 
apparatus  parting,  she  struck  on  the  rocks  and 
became  stranded  early  in  the  morning  of  Satur- 
day, at  nearly  high  water.  Notice  of  abandon- 
ment was  given  in  Halifax  on  beluilf  of  tlie 
owners  on  the  evening  of  the  following  Monday, 
to  which  the  underwriters  replied  declining  to 
accept  it  without  furtiier  particulars,  and  the 
vessel  was  sold  on  Tuesday  after  the  master  had 
communicated  with  the  owners.  Evidence  was 
given  that  the  tide  did  not  suit  on  Saturday  to 
make  any  effectual  attempt  to  float  the  vessel, 
and  that  the  drift  ice  prevented  getting  out 
more  than  one  anchor  ;  and  there  was  evidence 
that  all  that  was  useful  had  been  done  on  that 
day,  that  on  Saturday  night  she  filled  with  water, 
and  that  on  Sunday,  a  gale  coming  on,  she  was 
bilged.  On  Monday  a  winter  gale  was  blowing 
with  heavy  sea  breaking  over  the  vessel,  so  that 
the  crew  could  not  survive  on  board.  The  vessel 
was  grinding  on  the  bottom  and  was  in  danger 
of  going  to  pieces,  so  that  experienced  people 
thought  she  was  in  a  hopeless  condition.  After- 
wards, by  the  aid  of  a  favorable  tide  and  by  a 
vessel,  not  available  when  the  notice  of  al)an- 
donment  was  given,  she  was  got  off  and  repaired. 
The  Judge,  who  tried  the  cause  without  a  jury. 


725 


INSURANCE,  MARINE. 


726 


found  for  plaintifif,  and  the  Court  refused  to  set 
the  verdict  aside. 

Corhett  v.  Providence  Washington  Ins.  Co. , 

3R.  &G.,  109. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  below,  1.  That 
the  sale  by  the  master  was  not  justified  in  the 
absence  of  all  evidence  to  show  any  "  stringent 
necessity "  for  the  sale  after  tlie  failure  of  all 
available  means  to  rescue  the  vessel. 

2.  That  tlie  undisputed  facts  disclosed  no 
evidence  whatever  of  an  actual  total  loss,  and 
did  not  constitute  v.-hat  in  law  could  be  pro- 
nounced either  an  absolute  or  a  constructive 
total  loss. 

l\r  .Strong,  J. — The  right  to  abandon  must 
be  tested  by  the  condition  of  the  vessel  at  the 
time  of  action  brought,  and  not  by  that  which 
existed  when  notice  of  abandonment  was  given. 

Providence  Wanhinijton  Ins.  Co.  v.  Corhett, 

9  S.  C.  R.,  256.  i 

17.  Constructive  total  loss  —  Plaintiffs' 

vessel  badly  injured  at  sea  was  towed  into 
CJuaiitanamo,  where  there  were  no  facilities  for 
repaiis,  and  where  she  would  have  had  to  remain, 
exposed  to  the  depredations  of  worms,  until 
spars,  etc.,  were  brouglit  from  New  York.  The 
owners  abandoned,  but  the  underwriters  refused 
to  accept  and  made  the  necessary  repairs  at  a 
cost  greater  than  the  value  of  the  vessel  restored. 
Held,  a  constructive  total  loss  of  the  vessel. 
Troop  et  al.  v.  Jone.i,  .5  R.  &  G.,  230. 

18.  Constructive  total  loss  — Notice  of 

abandonment  —  A  vessel  having  dragged  her 
anchors  in  a   violent  gale,   and    having    been 
be.iclied  ))y  the  master  to  save  her  and  the  lives 
of  iiis  crew,  was  surveyed,  and,  in  accordance 
witli  the  reconnnendation  of  the  survej'ors,  sold, 
witii  tlie  cargo,  botli  being  insured  under  time 
policies  Ijy  defendants,  for  the  benefit  of  the  : 
underwriters.     No  notice  of  abandonment  was  ' 
given,  and  no  effort  made  with   tlie  means  at ' 
hand  or  easily  accessible,  to  eave  her,  and  the 
sale  was  expressly  prohibited  by  an  authorized 
agent  of  the    insurers.      The    vessel  was  not ' 
seriously  damaged,  and  after  lying  on  the  beach  j 
all  winter  was  sufficiently  repaired  in  two  or  ; 
three  days  by  the  master,  who  had  purchased  her 
at  the  sale,  to  be  taken   to  a  port  wliere  she 
could  be  completely  repaired.  i 

Held,  that  a  verdict  for  a  constructive  total 
loss  of  vessel  and  cargo  could  not  be  sustained. 
Le»lie  et  al.  v.  Taylor,  1  R.  &  C,  352, 

19.  Constructive  total  loss  — Notice  of 

abandonment— The  association  of  which  defen- 


dant was  a  member  issued  a  policy  insuring 
plaintiff's  vessel  against  total  loss  for  the  period 
of  one  year.  The  vessel  while  on  a  voyage  from 
St.  Domingo  to  Boston  encountered  a  violent 
storm  in  consequence  of  which  si;e  was  obliged 
to  run  for  Bermuda  where  she  arrived  in  a  badly 
damaged  and  leaky  condition.  A  survey  was 
held  on  February  26th  and  again  on  March  10th 
to  ascertain  the  extent  of  damage,  but  in  the 
interim  on  the  'Jth  March  the  master  wrote  the 
plaintiff  informing  him  that  the  expense  of  re- 
pairing at  Bermuda  would  be  more  than  the 
vessel  had  cost  or  was  worth  and  stating  that  he 
would  abandon  her  to  the  underwriters  and  sell 
her  for  the  benefit  of  all  concerned.  The  sale 
was  held  on  the  13th  March  and  the  result  com- 
municated to  the  plaintiff  by  letter  dated  the 
15tli  March.  The  plaintiff  testified  that  the 
contents  of  the  first  letter  were  communicated  to 
tlie  underwriters  and  a  verbal  notice  of  aban- 
donment given  and  a  claim  for  a  total  loss  made 
but  the  evidence  on  these  points  was  contra- 
dictory. Tlie  jury  found  a  verdict  for  plaintiff, 
and  a  rule  was  taken  to  set  it  aside 

Held,  )>er  .Sir  W.  Young,  C.  J. — That  the  oral 
abandonment  by  plaintiff,  coupled  with  the 
exhibiti(m  of  the  master's  letter  of  the  fith 
March,  and  his  claim  for  a  total  loss,  was  enough 
to  satisfy  the  law.  Also,  that  the  notice  was 
in  time,  even  though  tlie  sale  on  the  1.3th  March 
reduced  it  to  a  matter  of  form,  and  gave  the 
underwriters  no  option  and  no  opportunity  to 
repair. 

Per  Johnstone,  E.  J.  — The  time  at  which  the 
notice  of  aban<lonment  was  giveii  was  essential 
to  plaintiff's  right  to  recover,  and  it  api)earing 
that  the  sale  was  made  before  the  abandonment, 
or  at  least  that  it  was  doubtful,  there  must  be  a 
new  trial. 

If  the  sale  were  made  before  notice  of  aban- 
donment to  the  underwriters,  the  sale  would  be 
the  act  of  tlie  agent  of  the  owners,  and  inasmuch 
as  it  would  deprive  the  underwriters  of  the 
option  of  repairing  the  vessel  or  otherwise 
ilealing  with  her  the  abandonment  would  be  in- 
effectual. 

The  cost  of  repairing  the  vessel  taken  in  con- 
nection with  her  value  when  repaired,  would 
have  justified  abandonment  but  the  vessel  being 
in  a  place  of  safety,  and  there  being  regular 
opportunities  for  communicating  with  the  owners 
and  underwriters  the  sale  in  the  absence  of  such 
communication  was  illegal. 

Per  Wilkins,  J. — The  case  being  one  of  construc- 
tive total  loss  and  no  circumstance  being  proved 
to  take  it  out  of  the  established  rule  of  law  due 
notice  of  abandonment  to  the  underwriters  was 
an  essential  condition  to  the  plaintiff  right  to 


727 


INSURANCE,  MARINE. 


728 


recover.  Notice  being  essential  the  onus  of 
establishing  it  was  on  the  plaintiff.  The  notice 
contained  in  the  master's  letter  of  March  6th, 
supposing  it  to  have  been  communicated  to  the 
underwriters  was  inctfec^ual  as  it  gave  them  no 
opportunity  of  electing  to  repair  the  vessel. 
Urgent  necessity  alone,  the  existence  of  which 
was  negatived,  could  have  made  the  sale  lawful. 
^fortoll  V.  Pafillo,  3  N.  S.  1).,  17. 

20.     Constructive  total  loss  — Notice  of 

abandonment — Acceptance  of  abandonment  — 
Plaintiffs  insured  tlieir  vessel  with  defendants 
on  time,  the  policy  being  stated  to  be  -'against 
total  loss  but  subject  to  general  average,"  and 
also  containing  the  following  special  clause,  viz. , 
"that  the  acts  of  the  assured  or  assurers  in 
restoring,  saving  and  preserving  the  property  in- 
sured in  case  of  disaster,  shall  not  be  considered 
a  waiver  or  acceptance  of  the  abandonment." 
The  vessel  was  stranded  in  St.  John  Harbor,  arxd 
after  a  careful  and  competent  survey  declared  to 
be  so  much  damaged  os  not  to  be  worth  repair- 
ing, and  the  plaintiffs  thereupon  gave  notice  of 
abandonnient  to  the  defendants,  and  ordered  a 
sale  of  the  ship.  The  defendants  sent  an  agent 
to  the  spot,  who  succeeded  in  a  few  days  in  hav- 
ing the  ship  floated  and  placed  in  a  situation  to 
be  repaired,  whereupon  they  notified  the  plain- 
tiffs that  they  declined  to  accept  the  aband- 
onment, and  refjuired  the  plaintiffs  to  take  the 
vessel  and  repair  her.  The  plaintiffs,  however, 
proceeded  with  the  sale,  and  the  ship  was  bought 
in  by  the  defendants,  registered  in  the  name  of 
their  agent,  and  repaired  and  navigated  at  their 
cost  and  for  their  benefit  for  two  years.  Plain- 
tiffs claimed  for  a  total  loss. 

Held,  that  although  it  was  not  an  absolute 
but  €a  constructive  total  loss,  notice  of  abandon- 
ment hiiving  been  duly  given,  the  liability  of 
defendants  attached. 

That  no  special  form  of  notice  of  abandonment 
was  re(juired,  pi-ovided  the  intention  to  abandon 
was  clearly  made  out. 

That,  as  the  plaintiffs  had  acted  upon  the 
judgment  of  competent  surveyors,  that  the  ves- 
sel was  not  worth  repairing,  and  upon  their  own 
hona  fide  opinion,  they  weie  tjustitied  in  the 
abandonment  and  sale  of  the  vessel. 

And  finally,  that  although  if,  under  the  special 
clause  in  the  policy,  the  defendants  after  repfiir- 
ing  the  ship,  had  tendered  her  back  to  the 
plaintiffs,  the  latter  would  have  been  bound  to 
accept  her  ;  yet  not  having  done  so,  but  ret»vined 
her  for  their  own  benefit,  they  must  be  held  to 
have  accepted  the  abandonment,  and  must 
therefore  pay  to  plaintiffs  the  full  amount  of 
their  claim. 

Baker  et  al.  v.  Sroivn,  3  N.  S.  D.,  100. 


21.  Constructive  total  loss— Notice  of 

abandonment — The  insured  vessel  was,  ])y  tlie 
Imrratry  of  the  master,  pierced  with  auger  holes 
and  abandoned  at  sea,  but  was  afterwards  found 
by  salvors  sent  out  to  search  for  her  in  tlie  in- 
terest of  the  insurers  of  the  cargo,  and  was 
towed  into  port,  where  she  lay  in  such  a  condi- 
tion that  one  of  the  witnesses  described  tlie  case 
as  one  of  physical  impossibility  to  repair.  She 
was,  however,  repaired,  but  at  a  cost  far  ex- 
ceeding her  value. 

Held,  that  the  case  was  one  of  construi;tive 
total   loss,    requiring  notice    of    abandonment. 

McDonald,  C.  J.,  dinsenliiuj ,  held  that  the  loss 
was  absolute. 

Cossman  v.  Wext,  6  R.  &  G.,  461 ; 
6  C.  L.  T.,  537. 

On  appeal  to  the  Privy  Council. 

To  constitute  a  total  loss  within  the  meaning 
of  a  policy  of  marine  insurance,  it  is  not  ne- 
cessary that  a  ship  should  be  actually  annihilated 
or  destroyed.  If  it  is  lost  to  the  owner  by  an 
adverse,  valid  and  legal  transfer  of  his  right  of 
property  and  possession  to  a  purchaser  by  a  sale, 
under  a  decree  of  a  court  of  competent  jurisdic- 
tion, in  consequence  of  a  peril  insured  against 
it  is  as  much  a  total  loss  as  if  it  had  been  totally 
annihilated.  Where  a  ship  had  been  deserted 
by  her  master  or  crew,  having  been  previously 
placed  by  them  in  a  sinking  condition,  but  luul 
been  subsequently  taken  possession  of  by  salvors, 
towed  into  port,  and  there  sold,  together  with 
,'.lje  cargo,  by  order  of  the  Admiralty  Court,  for 
less  than  the  actual  cost  of  the  salvage  services, 

Held,  in  actions  upon  policies  on  the  ship  and 
freight  respectively,  that,  assuming  tlie  posses- 
sion by  salvors  of  a  derelict  vessel  to  be  only  a 
constructive  total  loss,  the  subsecjuent  sale  cjn- 
stituteil  an  actual  total  loss  of  both  ship  and 
cargo. 

Cosifman   :.  H'ev^  ;  Cosuman  v.  Britixh  America 
An>i.  Co.,  Consolidated  Appeal-:, 

L.  R.,  13  App.  Cas.,  160. 

22.  Constructive  loss  of  freiglit  -Right  to 

recover  for—  Defendants  resisted  a  claim  for  loss 
of  freigh'^  on  the  ground  that  freight  had  act\ially 
been  earned.  The  facts  were  that  the  under- 
writers, to  whom  the  vessel  had  been  abandoned, 
accepted  the  abandonment  under  protest,  repair- 
ed the  vessel  and  earned  the  freight.  It  was 
not  contended  that  they  did  so  as  agents  for  the 
plaintiffs. 

//eld,  that  the  plaintiffs  could  rot  recover  as 

for  a  total  loss  of  freight,  freight  having  been 

actually  earned.     McDonald,  C.  J.,  disnenting. 

Troop  et  al.  v.  The  Merchants'  Marine  Lik.  Co., 

6R.  &G.,  323;  6  0.  L.  T.,  454. 


729 


INSURANCE,  MARINE. 


730 


On  aji/iecU  to  the  Supreme  Court  of  Canada, 
Ifi'/d,  reversing  the  judgment  below,  that 
there  being  a  constructive  loss  of  the  ship,  the 
action  of  the  underwriters  in  making  the  repairs 
anil  earning  the  freiglit  would  not  prevent  the 
assured  from  recovering. 

Troop  V,  Merchants'  Marine  Inx.  Co., 

13  8.  C.  R.,  506 ;  6  C.  L.  T.,  386. 

23.    Insurance  on  height  -  Constructive 

total  loss— Owner  must  give  notice  of  abandon- 
ment to  recover  against  underwriter — Plain - 
tiff  sliipped  a  cargo  of  deals  by  the  brigantine 
John  D.  Tupper  from  Newcastle,  N.  B.,  to 
C'oniiah  Quay,  Wales.  In  getting  out  of  the  Bay 
of  Fuiidy  the  vessel  stranded,  and  the  surveyors, 
wlio  were  called  to  examine  her,  reported  that 
they  found  her  entirely  unseaworthy,  and  recom- 
Moniled  that  she  should  be  sold  for  the  Ijenefit 
of  all  concerned.  A  further  survey  was  held, 
and  the  surveyors  further  reported  that  tiiere 
were  no  facilities  for  repairing  the  vessel  where 
slie  lay,  that  she  would  require  to  be  almost 
entirely  rebuilt,  and  that  the  cost  would  exceed 
her  vivlue  when  repaired.  The  vessel  having 
been  sold  where  she  lay,  her  cargo,  with  the 
exception  of  a  small  portion  which  could  not 
be  profitably  carried  by  the  owner,  was  re- 
shipped  to, the  port  of  destination  at  a  cost 
exceeding  the  amount  of  the  chartered  freight. 

The  vessel  was  taken  to  St.  John,  N.  B.,  by 
the  purchasers  and  repaired,  and  sailed  for 
Havana  with  a  cargo. 

Held,  that  in  the  absence  of  evidence  to  show 
that  the  vessel  was  restored  to  a  seaworthy  con- 
dition, and  that  the  cost  had  not  exceeded  her 
vahie  when  restored,  this  was  not  sufficient  to 
bring  the  case  within  the  application  of  tlie 
principle  by  which  the  right  of  abandonment 
once  accrued  becomes  divested. 

//(Id,  further,  that  the  insurers  were  the 
proper  parties  to  decide  whether  to  carry  the 
cargo  forward  or  not,  so  as  to  earn  any  diflFerence 
that  could  &^made  between  the  charter  value  of 
the  freight,  and  what  it  could  have  been  carried 
for,  and  that  plaintiff,  having  been  in  possession 
of  the  cargo  at  the  time  of  loss  and  in  a  position 
to  carry  it  forward,  was  bound  to  give  notice  of 
abandonment  in  order  to  recover  against  the 
underwriters. 

Patch  V.  Pitman,  7  R.  &  G.,  298; 
7C.  L.  T.,374. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  below,  in  view 
that  there  never  was  any  pressing  necessity  for 
the  sale,  or  any  time  wheu  the  ship  was 
unnavigable,  without  any  reasonable  hope  of 
repair;  that  the   damage   never  was  so  great 


[  that  the  owner  could  not  have  put  her  in 
a  state  of  repair  necessary  for  pursuing  the 
voyage  at  a  convenient  and  suitable  place,  and 
at  an  expense  less  than  the  value  of  the  ship, 
and  that  the  cargo  was  not  in  a  perishable 
condition,  but  in  a  place  of  safety  ;  there  was  no 

I  ground  for  saying  there   was  either  u  total  or 

'  constructive  total  loss,  or  that  there  ought  to 
have  l)een  a  loss  of  the  voyage  ;  and  therefore 
no  question  of  abandonment  arose. 

Patch  V.  Pitman,  lOth  February,  18S6, 

j  Cas.  Digest,  219. 

I    24.   Deviation— A  cargo  of  flsh  was  insured 

i  at  and  from  Eel  Brook,  to  Halifax.  The  vessel 
I  after  partly  loading  at  Eel  Brook,  proceeded  to 
j  Tuskct  Wedge,  which  was  admittedly  outside 
I  of  Eel  Brook,  and  to  Morris  Island,  which  was 
I  seven  miles  therefrom,  and  where  she  took  in 
I  supplies.  There  was  no  evidence  to  show  a 
usage  that  Morris  Island  was  considered  the 
I  same  as  Eel  Brook. 
i  Held,  that  there  was  a  deviation. 
\  Rodijers  v.  Jonex,  4  R.  &  G.,  96. 

I     25.    Deviation  and  change  of  voyage  — 

I  Distinction  between— -Where  a  vessel  insured 
[  on  a  voyage  from  Halifax  to  Nassau  and 
;  back,  arrived  at  Nassau  and  sailed  thence  for 
I  New  York,  having  previously  taken  in  cargo 
!  at  Nassau  for  New  York,  and  none  for  Hali- 
;  fax ;  and  the  captain  expressed  his  deter- 
j  mination  before  leaving  Nassau  to  return  there 
1  or  to  some  other  West  India  Island  from  New 

York,  and  his  disinclination  to  return  to  Halifax; 

and  the  vessel  was  wrecked  while  on  the  track 
i  common  both  to  the  voyage  from  Nassau  to  New 
j  York,  and  to  that  from  Nassau  to  Halifax. 

Held,  a  chamje  of  voyatje,  and  not  merely  a 
I  deviation,  or  intention  to  deviate,  and  that  the 
;  underwriters  were  not  liable. 
I  Crowell  V.  Geddes,  1  Old.,  184. 

26.    Deviation— Seaworthiness— A  vessel, 

insured  from  St.  George's  Bay,  Newfoundland, 
to  Halifax,  N.  S.,  left  St.  George's  Bay  between 
7  and  8  a.  m.,  November,  18th,  ostensibly  for 
Halifax,  her  ultimate  destination  being  Mon- 
treal ;  was  said  by  the  master  to  have  sighted 
St.  Paul's  Island  about  noon  of  the  same  day,  the 
mate  said  twelve  hours  later,  and  about  8  or  9 
o'clock  the  next  morning  was  left  by  the  crew 
wrecked,  on  the  north  coast  of  the  Island  of 
Anticosti. 

Held,  that  the  verdict  for  plaintiffs  must  be 
set  aside  on  the  ground  that  it  was  impossible  to 
conclude  that  the  vessel,  from  the  time  she  left 
her  place  of  departure  to  the  time  of  her  loss, 
was  pursuing  a  voyage  to  Halifax. 


731 


INSURANCE   MARINE 


732 


HM,  alxo,  that  the  fact  that  the  vessel  had 
put  into  St.  George's  IJay,  disahleil,  for  repairs, 
should  have  been  eornniuniuated  to  the  insurers. 

Per  Wilkins,  J. — That  the  faut  of  the  vessel 
putting  into  .St.  (Jeorgos  IJivy,  for  repairs,  and 
the  cirounistiinues  under  which  she  was  wrecked, 
raised  a  doubt  as  to  her  seaworthiness  when  in- 
sured, which  could  tnly  have  been  removed  by 
proof  of  a  survey  at  that  place. 

Bo  ik  et  al,  v.  Merchantu'  Marine  Ins,  Co., 

1  R.  &C.,288. 

On  appeal  to  the  Supremf  Court  of  Canwla, 

Held,  under  section  22  of  the  Supreme  and 
Exchequer  Court  Act,  no  appeal  lies  from  the 
judgment  of  a  Court  granting  a  new  trial,  on  the 
ground  that  the  vertlict  is  against  the  weigiit 
of  evidence,  that  being  a  matter  of  discretion. 
(But  see  S.  C.  A.  A.,  1880,  sec.  4.) 

Boak  et  al.  v.  Merchants'  Marine  Inx.  Co., 

1  S.  C.  R.,  110. 

27.    False  representation— Policy,  cancel* 

lation  of— Premium,  retention  of  portion  of  — 
Plaintiffs'  written  application  for  marine  insur- 
ance, made  October  17th,  1870,  to  the  St. 
Lawrence  Marine  Association,  of  which  defen- 
dant was  broker,  and  in  which  he  was  a 
shareholder,  contained  the  following  statement : 
"Insurance  elsewhere  not  to  exceed  $2,000." 
The  application  was  accepted  October  25th, 
1870,  and  a  policy  delivered  to  the  plaintiffs' 
agent,  containing  no prohibitionagainst  insurance 
elsewhere.  T'^e  vessel  was  insured  in  another 
company  to  the  amount  of  $2,000,  on  the  day 
the  application  was  made,  and  was  further  in- 
sured for  $2,000  in  November  following. 

On  the  20th  February,  1871,  the  defendant 
association,  none  of  the  parties  having  had  any 
intimation  of  the  loss,  cancelled  their  policy 
on  account  of  such  other  insurance,  charging  the 
plaintiffs'  premium  up  to  that  date  and  remitting 
the  portion  payable  after  that  date.  The  vessel 
was  abandoned  as  a  total  \tTeck  on  Feb.  19th, 
1871. 

Jleld,  that  the  statement  in  the  application  or 
slip  was  a  positive  representation  of  a  future 
fact  material  to  the  risk,  and  that,  being  false, 
it  avoided  the  policy. 

McDonald  et  al.  v.  Doull,  3  R.  &  C,  276. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  below,  that  the 
defendants  could  not  be  allowed  to  contend 
that  the  cancellation  operated,  not  from  20th 
February,  1871,  up  to  which  date  the  premium 
was  charged,  but  from  November  previous. 
Appeal  allowed  with  costs. 

McDonald  v.  D<nill,  24th  February,  1879. 

Gas.  Digest,  214. 


I    28.    Freight,  policy  on— Necessity  of  no*^ 

'  tice  of  abandonment — Plaintiff  was  insured  on 
freight  on  a  voyage  from  Mexico  to  New  York. 
The  vessel  became  leaky  and  was  abandoned  at 
i  sea,  but  was  afterwards  picked  up  by  salvors 
I  and  towed  into   Norfolk,  Virginia.      Plaintifl" 
'  was  aware  of  this,  but  gave  no  notice  of  abandon- 
ment. 

Held,  that  defendants  were  entitled  to  notice 
of  abandonment,  and  that  it  was  no  answer  to 
this  to  show  that  nothing  would  be  gained  liy 
their  interposing. 
McDonald,  C.  J.,  disaentimj. 
Patch  v.  Pitman,  nupra,  23,  followed. 
Cosn)nan  v.  The  Brit inh  American  Inn.  Co., 

6R.  &G.,457; 
OC.  L.  T.,  .5.37. 
For  appeal  to  Privy  Council  net  Cossmau  v. 
Went,  supra,  21. 

29.   Insurable  interest— False  represen* 

tations  to  induce  sale — Where  goods  delivered 
vendor  must  disaffirm  the  transaction  before 
goods  can  revest  in  him— Plaintiff  brought  action 
on  a  policy  of  insurance  on  certain  goods  pur- 
chased from  him  by  one  McM.,  who  gave  his 
promissory  notes  made  payable  to  plaintiff  in 
payment.  The  goods  were  of  the  invoiced  value 
of  about  $1100  and  were  insured  for  $1400  which 
plaintiff  explained  was  to  cover  the  anticipated 
profits.  By  McM.'s  directions  the  goods  were 
sent  to  the  Cordelia  for  shipment  and  a  bill  of 
lading  was  taken  stating  that  they  were  shipped 
by  plaintiff  in  the  Cordelia  bound  for  Margaret- 
ville  to  be  delivered  to  McM.  or  his  assignii,  he 
or  they  paying  freight.  Instead  of  being  taken 
to  Margaretville  they  were  landed  at  Moser's 
Island,  and  the  vessel  taxen  a  few  miles  out  and 
sunk,  all  of  which  was  at  McM.'s  instance.  In 
his  writ,  plaintiff  set  out  that  he  and  McM.,  or 
one  or  other  of  them,  was  at  the  time  of  the  loss 
interested  in  the  goods,  and  that  the  insurance 
was  made  for  the  benefit  of  the  person  or  per- 
sons so  interested,  and  on  the  trial  evidence 
was  given  tending  to  show  that  no  sale  or  deliv- 
ery to  McM.  had  actually  taken  place,  and  that 
McM.'s  purchase  was  a  fraud  on  plaintiff,  and 
that  he  was  to  have  procured  a  second  name  on 
the  notes.  The  jury  found  these  facts  in  an- 
swer to  questions  put  to  them,  and  they  found 
a  verdict  for  plaintiff,  subject  to  the  opinion  of 
the  Court. 

Held,  that  plaintiff  could  not  recover  without 
showing  that  he  was  the  owner  of  the  goods ; 
that  the  facts  in  proof  showed  an  absolute  sale 
and  delivery  to  McM.  ;  that  even  if  McM. 
had  obtained  the  goods  by  false  representations' 
(•'.  e.,  as  to  the  additional  name  to  be  procured 


733 


INSURANCE.  MARINE. 


734 


on  the  notes),  yet  the  property  vested  in  the 
veiuk'c  until  the  i)hiintifiF  liiul  done  somo  act  to 
(h»affirn»  the  triinaaction,  and  that  the  verdict 
must  be  set  aside. 

Outram  v.  Smith,  2  R.  &  C,  187. 

30.  Insurable  interest- doods  deliverable 

to  shipper's  order,  not  conclusive  evidence  of 
determination  of  vendor  to  reserve  right  to 
transfer— Plaintiffs  agreed  with  McF.,  of  St. 
George's  Bay,  Nfl'd,  to  sell  him  certain  goods 
wliicli  were  shipped  on  Iward  a  vessel  bound  for 
that  place,  plaintiffs  taking  a  bill  of  lading  in 
the  usual  form,  but  in  which  the  goods  were 
made  deliverable  to  the  shipper's  order,  one  of 
the  copies  of  the  bill  of  lading  being  given  to 
McF.,  or  sent  to  him  by  the  vessel.  Plaintiffs 
insured  the  goods  as  their  own  property,  but  the 
Court,  Wilkins  and  McDonald,  JJ.,  dimeiitiinj, 
drew  from  the  evidence  the  inference  that  both 
the  vendors  and  the  vendee  had  recognized  McF. 
as  the  owner  of  the  goods  during  the  transit,  and 
at  tlie  time  of  the  loss  plaintiffs  having  taken  a 
note  from  McF.'s  brother  as  collateral  security 
for  payment  of  the  account,  and  the  plaintiffs' 
testimony  designed  to  show  that  the  goods  had 
not  been  paid  for  or  charged  to  McF.  being  con- 
sidered doubtful  and  unsatisfactory, 

Hdd,  that  although  the  fact  of  the  goods 
heing  made  deliverable  by  the  bill  of  lading  to 
the  order  of  the  shippers  }>rima  facie  indicated 
that  they  intended  to  reserve  the  right  of  trans- 
ferring the  goods,  it  was  not  conclusive ;  that 
the  sale  was  complete  when  the  goods  were 
shipped  according  to  McF.'s  order,  and  that  the 
plaintiffs  had  no  insurable  interest. 

Pwjh  et  al.  v.  Wylde  et  al.,  2  R.  &  C,  177. 

31.  Insnrable  Interest— Unpaid  vendor- 
Special  property  retained  by  vendor— Wher^ 
insurance  was  effected  on  goods  on  a  voyage 
from  Halifax  to  Labrador  and  back  to  Halifax 
and  in  the  "description  of  goods  insured"  the 
words  were,  "  merchandise  under  deck,  amount 
$2000,  rate  5  per  cent ;  premium  $100,  to  return 
2  per  cent  if  risk  ends  1st  October  and  no  loss 
claimed." 

J/eld,  that  the  risk  could  not  be  confined  to 
goods  shipped  at  Halifax. 

The  insurance  was  not  taken  "on  behalf  of 
whom  it  may  concern  "  and  it  was  contended 
that  plaintiffs  could  not  recover  being  only  un- 
paid vendors,  but  it  appeared  that  the  plaintiffs, 
had  supplied  the  goods  to  one  Tupper  under  a 
special  agreement  by  which  they  were  to  have  a 
special  property  in  them. 

Held,  that  they  had  an  insurable  interest,  and 
that,  after  verdict  for  plaintiffs  it  was  not  sufS- 
cient  cause  to   set   it  aside  that  one  of   the 


plaintiffs,  on  cross-examination,  had  answered 
that  if  the  goods  had  been  lost  without  insur- 
ance the  loss  would  have  fallen  on  Tupper,  such 
answer  being  rather  such  plaintiff's  view  of  the 
legal  effect  of  the  agreement  than  a  statement 
of  the  terms  of  the  agreement  as  a  matter  of  fact. 
Jiumnty  et  al.  v.  The  Merchautu'  Marine 

/»M.  Co.,4R.  &(;.,  220. 
On  a/tjieal  to  the  Sujrreme  Court  of  Canada, 
Held,  affirming  the  judgment  of  the  Court 
below,  that  the  policy  covered  not  only  goods 
put  on  board  at  Halifax,  but  all  the  mer- 
chandise under  deck  shipped  in  good  order 
on  board  said  vessel,  during  the  period  mention- 
ed in  the  policy. 

Held,  alxo,  that  there  was  sufficient  evidence 
to  show  that  the  plaintiffs  had  an  insurable  in- 
terest in  all  the  goods  obtained  and  loaded  in  the 
vessel. 

Merchant-i'  Marine  Ins,  Co.  v.  Rumney, 

9  S.  C.  R.,  577  i. 
4  C.  L.  T.,  179. 

32.  Insaranee  paid  over  and  overvaIa> 

ation  then  discovered  —  Action  to  recover  — 
Defendant  was  agent  for  the  owners  of  a  vessel, 
and,  acting  as  such,  had  her  insured  with  plain- 
tiffs in  the  sum  of  §800.  On  the  vessel  being 
lost  the  plaintiffs  paid  him  the  full  amount,  and 
then  subsequently  discovered  that  the  policy- 
had  been  void  on  the  ground  of  over  insurance, 
the  vessel  being  valued  at  §4,000  only,  while 
she  was  insured  in  two  other  companies  for 
$6,200  prior  to  being  insured  with  plaintiffs,  of 
which  fact  they  had  no  knowledge  when  they 
insured  her.  When  this  became  known  to  them 
they  sought  to  recover  back  the  amount  paid 
defendant.  The  defendant  had  not  been  aware 
of  the  over  insurance,  and  had  acted  in  perfect 
good  faith.  Soon  after  reoipt  of  the  money, 
and  before  notice  from  plaintiffs,  he  had  account- 
ed with  his  principals  for  the  full  amount  in  a 
settlement  between  them. 

Held,  that  defendant  could  not  be  compelled 
to  refund  the  amount. 

Union  Marine  Ins.  Co.  v.  Metzler, 

3  N.  S.  D.,  331. 

33.  Joint  or  several  contract—  Barratry 

of  the  master,  being  part  owner  —  The  case 
stated  for  the  opinion  of  the  Court  set  out  that 
the  schr.  "  Khedive  "  wm  insured,  by  L.  H.  for 
and  on  account  of  N.  S.  C,  who  ownsd  eight 
shares  ;  D.  S.,  whoowned  four sh<< res-  U.  S.,  who 
owned  four  shares,  ftc,  and  also  on  behalf  of 
Nathaniel  Snow  and  Jeremiah  Snow  ;  that  while 
said  policy  was  in  force  the  vessel  became  a 
total  loss  by  the  barratry  of  Nathaniel  and  Jere- 


735 


INSURANCE.  MARINE. 


736 


miali  Snow,  who  were  rcBpectively  the  master 
anil  one  of  tho  ciew,  and  were  part  owners  of 
the  vessel.  The  policy  was  "  oa  behalf  of  whom 
it  may  concern  "  and  insured  the  sum  in  lolido 
on  an  entire  ship  for  one  premium. 

Ilfld,  that  the  contract  of  insurance  was  sev- 
eral, and  that  the  innocent  owners  could  recover, 
notwithstanding  the  barratry  of  the  other  own- 
ers. 

Weatherbe,  J.,  douhlimj,  Rigby,  J.,  dixneiithi!/. 
C'rowell  et  al.  v.  Jones,  5  R.  &  G.,  '513. 


84 .  Loss,  total  or  partial— Plaintiff's  vessel 

having  run  ashore,  after  ineffectual  efforts  to  re- 
lease her  from  the  rocks  whore  she  lay,  he  gave 
notice  of  abandonment  which  the  underwriters 
refused  to  accept. 

They  in  the  interest  of  all  concerned  very  soon 
had  her  removed,  and  repaired  at  a  total  cost  of 
$1300,  and  then  t<>;i(lered  her  to  the  plaintiff 
who  refused  to  take  her,  and  brought  suit  for  the 
full  amount  of  the  insurance.  The  defendants 
appealed  from  the  verdict  in  plaintiff's  favor. 

Hfhl,  that  there  should  be  a  new  trial  in  whicii 
the  inquiry  sliould  be  limited  to  whether  the 
loss  was  Mai  or  partial,  the  question  whether 
there  was  or  was  not  any  loss  having  been  set- 
tled by  the  first  trial. 

Delmor  v.  The  Prorincial  Inn.  Co.  of  Canada, 

2  N.  S.  U.,  20. 


33.    Loss— What  determines  whether  It  Is 

total  or  partial — It  is  not  the  statu  of  the  vessel 
at  the  time  the  notice  of  abandonment  is  given, 
but  its  conditions  at  the  time  of  action  brought, 
that  determines  whether  the  loss  is  a  total  or 
partial  one. 

The  schooner  "Joseph  Albino"  struck  on  rocks 
in  an  exposed  condition,  on  Nov.  11th,  18.39,  and 
notwithstanding  exertions  of  crew  and  persons 
from  the  shore,  was  abandoned  by  the  crew  on 
the  15th  ;  notice  of  abandonment  was  given  to 
the  underwriters  by  the  assured,  on  the  19th. 
On  the  20th  the  underwriters  accepted  the  aban- 
donment. On  the  21st  a  heavy  gale  lifted  her  off 
the  rocks,  and  she  was  brought  safely  into  port, 
whereupon  the  underwriters  on  the  27th  gave 
notice  that  they  would  not  accept  the  abandon- 
ment. 

Held,  that  though  at  the  time  the  notice  of 
abandonment  was  given  and  accepted,  the  aband- 
onment was  well  made,  yet,  that  subsequent 
events  having  made  that  a  par  ;ial  which  was 
formerly  a  total  loss,  the  assured  were  only 
entitled  to  recover  as  for  a  partial  loss. 

Kenny  et  al.  v.  Halifax  Marine  Ins.  Co. , 
1  Thorn.,  (Ist  Ed.),  113;  (2nd  Ed.),  141. 


86.    Misrepresentation  in  contract  ol- 

Plaintiff  applied  for  a  policy  of  marine  insurance, 
stating  in  tiie  application  that  the  vessel  was 
to  coast  principally  from  Canso  to  Halifax, 
using  P.  K.  Island  and  Newfoundland.  Tliu 
policy  differed  from  the  application,  cover- 
ing other  risks  than  those  applied  for,  and  con- 
taining exceptions  not  in  the  application.  The 
vessel  wan  lost  on  a  voyage  from  Baltimore  to 
St.  Thomas,  which  was  within  the  policy. 

Held,  that  this  was  not  a  case  of  misrepre- 
sentation, and  that  the  insured  was  justitied  in 
sailing  wherever  the  policy  permitted. 

Corhett  v.  McKemie  e<  o/.,  4  R.  &  G.,  50. 

On  apiteaJ,  to  the  Supreme  Court  of  Canada, 

Held,  reve  sing  the  judgment  below,  that 
taking  the  application  and  policy  together,  a 
perfectly  consistent  contract  of  assurance  could 
be  made  out,  namely,  a  contract  to  (.ssure  tiie 
vessel  for  the  time  named,  provided  she  was  con- 
fined to  coasting  voyages,  and  did  not,  while  so 
employed,  use  any  of  tl»e  prohibited  waters. 

Henry,  J.,  dissentimj. 

McKemie.  v.  Corhett,  19th  June,  1SS3, 
Cos.  Digest,  215, 

37.    Mortgagee's  interest— Insurance  of- 

Authority  from  owner — Trust  for  owner  as  to 
surplus  —  Plaintiff  being  the  mortgagee  of  a 
vessel  caused  insurance  to  be  effected  to  tlie  sum 
of  .?5,000  in  defendant's  office  in  addition  to 
§5,000  insured  in  the  Anchor  Marine  Insurance 
Company.  The  amount  due  to  the  mortgagee 
was  §5,,S06  in  addition  to  which  he  had  adviiiiceil 
for  payment  of  premiums  .?522,  making  in  all 
§5,828.  Plaintiff  had  received  from  the  sale  of 
the  vessel  .§1,207,  and  from  the  Anchor  Marine 
Insurance  Company  $4,493,  in  all  §5,700  leaving 
a  balance  of  §128.  The  verdict  was  for  §1,32,5, 
and  plaintiff  claimed  to  rdtain  it  as  trustee  for  tlie 
owner.  The  policy  was'  expressed  to  be  for  "E, 
P.  Archbold  on  account  of  himself. "  The  only 
interest  he  set  up  in  his  affidavit  of  claim  was  a 
mortgage,  and  the  only  authority  he  proved 
was  that  claimed  in  his  statement :  "  The  owner 
authorized  me  to  insure  further  for  my  own  pro- 
tection." 

Held,  that  there  must  be  a  new  trial  unless 
the  parties  should  consent  to  reduce  the  verdict 
to  $128. 
Archbold  v.  The  Merchants'  Marine  Ins.  Co. 

4R.  &G.,98. 

88.    Mortgagee— Bight  to  Insurance- 

Plaintiff,  a  member  of  the  firm  of  Black  Bros,  k 
Co. ,  took  a  mortgage  of  a  vessel  which  was  given 
by  defendants  for  outfits  supplied  by  that  firm, 
and  a  policy  of  insurance  was  effected  to  secure 


737 


INSURANCE,  MARINE. 


73S 


the  payment  for  the  outfits.  The  vessel  was  lost 
and  plaintiff  received  the  insurance,  which  ho 
creditcil  in  account  with  one  Malcolm,  u  whom 
he  had  agreed  to  sell  36/64  shares  in  the  vessel. 

Hfld,  that    the  amount  received    from    the 
insurers  must  go  to  the  credit  of  the  mortgage. 
Troop  V.  Montr  el  at.,  R.  E.  D.,  189. 

89.  Mortgagee  wbo  asaigns  a>  collateral 

has  an  inaarable  interest  —  Voyage   policy 
—Total  loss  —  Right  to  recover  —  Notice  of 
abandonment  by   mortgagee  —  Conatruotive 
total  loss— While  the  barque  "Charley"  was 
at  Cochin,  on  or  about  the  12th  April,  1879,  the 
master  entered  into  a  charter  party  for  a  voyage 
to  Colombo,  and  thence  to  New  York  by  way  of 
Alippce.    The  vessel  sailed  on  the  22nd  April, 
1879,  and  arrived  at  Colombo,  which  place  she 
left  on  the  13th  May,  and  while  on  her  way  to 
Alippee  she  struck  hard  on  a  reef  and   was 
damaged  and  put  back  to  Colombo.     The  vessel 
was  so  damaged  that  the  master  cabled  to  the 
ship's  husband  at  New  York  on  the  23rd  May, 
and  in  reply  received  orders  to  exhaust    all 
available  means  and  do  the  best  he  could  for  all 
concerned.     The  repairs  needed  were  extensive 
and  it  was  impossible  to  get  them  done  there, 
and  Bombay,  1 ,000  miles  distant,  was  the  near- 
est port.    After  proper  surveys  and  cargo  dis- 
charged, on  the  10th  June  the  vessel  was  stripped 
and  the  master  sold  the  materials  in  lots  at 
auction.    On  the  21  st  May  the  respondent,  a 
mortgagee  of  46/64  in  the  vessel,  which  he  had 
assigned  to  the  Bank  of  Nova  Scotia  by  indorse- 
ment on  the  mortgage,  as  a  collateral  security 
for  preexisting  debts  to  the  Bank  of  Nova  Scotia, 
being  aware  of  the  charter  from  Cochin  to  New 
York,  insured  his  int«rest  with  the  appellant 
company,  the  nature  of  the   risk   being  thus 
described  in  the  policy  :    "  upon  the  body,  etc., 
of  the  good  ship  or  vessel  called  the  barque 
'Charley*  beginning  the  adventure,    the   said 
vessel  being  warranted  by  the  insured  to  be 
then  in  safety,  at  and  from  Cochin  via  Colombo 
and  Alippee  to  New  York." 

To  an  action  on  the  policy  for  a  total  loss, 
the  defendants  pleaded,  irUtr  alia,  1st,  that  the 
plaintiff  was  not  interested  ;  2nd,  that  the  ship 
was  not  lost  by  the  perils  insured  against ;  3rd, 
concealment.  A  consent  verdict  for  $3,206,  for 
plaintiff  was  taken,  subject  to  the  opinion  of 
the  Court  upon  points  reserved  to  be  stated  in  a 
rule  ni'si,  and  upon  the  understanding  and  agree- 
ment tf  at  everything  which  could  be  settled  by 
&  jury  should,  upon  the  evidence  given,  be  pre- 
sumed to  be  found  for  the  plaintiflf. 

iTe/d,  that  the  rule  nisi  for  a  new  trial  must 
be  discharged,  that  the  transfer  not  being  in  the 
form  which  the  statute  gave  for  an  absolute 
24 


transfer,  and  taking  the  whole  words  of  the 
transfer  together,  it  was  only  a  mortgage  whiuiS 
left  an  interest  in  the  party  insured. 

Keith  V.  Anchor  Marine  Inn.  Co., 
3R.  &G.,402. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  1st.  That  this  was  a  voyage  policy, 
and  that  the  warranty  of  safety  referred  entirely 
to  the  commencement  of  the  voyage  and  not  to 
the  time  of  the  insurance. 

2nd.  That  the  fact  of  the  plaintiff  having 
assigned  his  interest  as  a  collateral  security  to  a 
creditor  did  not  divest  him  of  all  interest,  so  as 
to  disentitle  him  to  recover. 

3rd.  That  the  vessel  in  this  case  being  so 
injured  that  she  could  not  be  taken  to  a  port  at 
which  the  necessary  repairs  could  be  executed, 
the  mortgagee  was  entitled  to  recover  for  an 
actual  total  loss,  and  no  notice  of  abandonment 
was  necessary. 

Per  Strong,  J. — A  mortgagee,   upon  giving 
due  notice  of  abandonment,   is  not  precluded 
from  recovering  for  a  constructive  total  loss. 
Anchor  Marine  Ins.  Co.  v.  Keith, 

9  S.  C.  R.,  483; 
4  C.  L.  T.,  178. 

40.  Notice  or  abandonment— Amendment 

— Plaintiff  brought  action  on  a  policy  of  insur- 
ance on  goods  supplied  for  a  trading  voyage. 
The  vessel  was  wrecked  on  the  Labrador  coast 
at  a  place  where  there  was  no  boat,  no  wharf 
and  no  means  of  saving  the  goods,  with  the  ex< 
ccption  of  one  vessel  which  had  a  cargo  of  her 
own  and  could  not  be  compelled  to  remain  to 
protect  the  property.  To  leave  the  goods  in  the 
vessel  all  winter  would  have  been  extremely 
hazardous  and  the  master  sold  them  without 
notice. 

J/eld,  that  considering  all  the  circumstances, 
the  sale  was  justifiable  and  therefore  notice  of 
abandonment  was  not  necessary.  Plaintiff  was 
permitted  at  the  trial  to  amend  his  declaration 
by  all<iging  the  interest  in  the  insurance  to  ho 
in  one  M.  along  with  the  others  originally 
named. 

Held,  that  the  Judge  had  the  right  to  allow 
the  amendment  in  his  discretion. 

Rumsey  v.  Providence  Wcmhington  Ins.  Co., 

1  R.  &6.,393. 

41.  Partial  loss— Master's  aatborlty  to  sell 

sea  damaged  goods — Plaintiff  shipped  a  cargo 
consisting  of  dry  and  pickled  fish,  pork,  oats, 
peas,  &c.,  to  Demerara,  part  of  the  cargo  being 
on  deck,  and  insured  it  with  defendants.  By  the 
policy  the  latter  were  not  to  be  liable  for  partial 
loss  or  particular  average,  unless  amounting  to 


739 


INSURANCE,  MARINE. 


740 


five  per  cent.,  and  m  to  the  oats  and  dry  fish  to 
be  free  from  average  unless  general. 

On  the  way  the  vessel  encountered  very  heavy 
weather,  lost  all  her  deck  load,  sprung  a  leak, 
sustained  damage  to  her  rigging  and  so  was 
compelled  to  put  in  to  Barbadoes  for  repairs, 
where  the  cargo  was  landed  and,  after  survey, 
sold  by  the  master.  The  cargo  was  all  more  or 
less  injured  by  water,  and,  according  to  the 
evidence,  the  fish  if  reshipped  would  have  been 
of  little  value  when  it  reached  its  destination. 
The  7>laintifi'knew  nothing  of  what  had  been  done 
until  he  received  the  account  of  sales  of  the  cargo 
with  the  protest  and  survey,  and  these  he  at  once 
sent  to  the  defendants.  He  claimed  for  a  total 
loss.  Defendants  contended  that  the  loss  was 
only  partial,  and  that  the  cargo  ought  to  have 
been  forwarded.  From  the  evidence  it  did  not 
clearly  appear  that  the  cargo  was,  upon  the 
whole,  so  injured  as  that  if  forwarded  to  its  des- 
tination the  expense  would  have  exceeded  its 
value  on  arrival  there.  There  was  no  question 
but  that  the  master  acted  in  good  faith,  and  just 
as  a  prudent  uninsured  owner  would  have  done 
under  the  circumstances. 

Held,  that  in  the  absence  of  conclusive  evidence 
that  the  cargo  might  not  have  been  sent  on  to  its 
destination,  at  an  expense  less  than  its  probable 
value  there,  the  loss  must  be  considered  partial, 
and  the  defendants  liable  only  for  general  average 
thereon,  with  the  exception  of  the  deck  load, 
which  was  a  total  loss. 

The  proper  test  iu  respect  to  goods  which  have 
been  sea  damaged  and  taken  to  an  intermediate 
port,  whether  memorandum  articles  or  not,  is 
not  whether  an  uninsured  owner  would  have 
sold  them  there,  but  whether  they  can  be  sent 
on  to  their  destination  at  a  less  expense  than 
their  value  on  arrival  there,  for  when  the  whole 
or  any  part  of  the  cargo  can  be  sent  on,  the 
master  has  no  authority  to  sell,  nor  can  the 
assured  recover  for  a  total  loss. 

IVatson  V.  Mercantile  Marine  Ins.  Co., 

3  N.  S.  D.,  396. 


42.   Pnrttal  or  total  loss— ArriTal  of  goods 

in  specie  at  port  of  destination — General  ver- 
dict— In  an  action  on  a  policy  of  insurance  on 
potatoes  in  which  it  was  stipulated  that  they 
should  be  free  from  all  average  unless  general, 
the  plaintiff  obtained  a  general  verdict  by  con- 
sent. The  potatoes  arrived  at  the  port  of  des- 
tination damaged  by  sea  water  and  very  rotten, 
and  evidence  was  received  that  they  were 
worthless  and  would  not  repay  the  expenses 
of  taking  them  out  of  the  vessel,  yet  684  bushels 
were  taken  out,  and  deducting  charges  for  duties, 
custom  house,  broker  and  commission,  yielded 


net  proceeds  amounting  to  $220.80.  It  was  not 
shown  whether  the  cost  of  picking  and  sorting, 
&c. ,  exceeded  this  sum  or  not. 

Held,  that  in  view  of  the  general  verdict  by 
consent,  the  Court  must  assume  that  the  jury 
had  found  that  the  potatoes  were  worthless,  as 
this  was  the  only  question  for  the  jury,  but  that 
finding  was  against  the  weight  of  evidence,  as 
there  was  nothing  to  show  that  the  net  proceeds 
realized  were  not  clear  of  all  expenses,  and  the 
burden  was  on  the  plaintiff  to  show  that  there 
were  expenses  that  exceeded  said  proceeds. 

Almon  v.  British  America  Asa.  Co., 
4  R.  &  G.,  43. 

43.    "Perils  of  the  sea"— Meaning  of- 

The  plaintiff  insured  in  the  office  of  the  defen- 
dants a  cargo  of  supplies  for  railway  contractors, 
shipped  from  Halifax  for  Campbelltown,  N.  B. 
On  the  voyage,  heavy  weather  was  encountered, 
which  obliged  the  vessel  to  put  into  Pictou, 
where,  on  a  survey  being  held,  it  was  found  she 
was  leaking  badly  and  unseaworthy.  After  re- 
maining during  the  winter  at  Pictou,  she  sailed 
for  Campbelltown  next  spring,  where  she  arrived 
in  May  or  June.  It  was  found  on  unloading 
that  a  portion  of  the  cargo  v^as  damaged,  having 
the  appearance  of  being  submerged  in  sea  water. 
The  goods  were  surveyed  and  ordered  to  be  sold. 
An  agent  of  the  defendants  was  present  when 
some  of  the  goods  were  opened,  previous  to  the 
sale,  and  did  not  prohibit  it.  The  jury  found 
for  the  plaintiff,  and  the  Court  refused  to  dis- 
turb the  verdict,  as  the  evidence  had  been  read 
to  the  jury,  with  the  instruction  that  they  were 
to  consider  whether  the  damage  was  occasioned 
by  the  leakage  of  the  vessel  from  boisterous 
weather  encountered  on  the  voyage,  or  from 
some  other  cause  not  covered  by  the  policy. 
The  phrase  "perils  of  the  sea,"  in  a  policy  of 
insurance,  extends  only  to  cover  losses  really 
caused  by  sea  damage,  or  the  violence  of  the 
elements,  ex  marinae  tempestalis  discrimine. 
The  words  do  not  embrace  all  losses  happening 
on  the  seas,  comprehended  under  the  general 
sweeping  words  in  the  policy,  "  all  other  perils, 
losses  or  misfortunes,  that  have  or  shall  come  to 
the  hurt,  detriment  or  damage  of  the  property 
assured." 

Murray  v.  Nova  Scotia  Marine  Ins.  Co. , 

1  R.  &  C,  24. 

44.    Policy  KTOided  by  concealment  and 

misrepresentation  —  Plaintiffs  applied  for  in- 
surance on  the  cargo  of  their  vessel,  the  "  Albert 
M,"  on  a  voyage  from  Porto  Rico  to  Halifax.  In 
reply  to  a  question  "Where  is  vessel  at  present?' 
the  answer  was  ' '  Loading  at  last  advices, "  and  in 
reply  to  question  ' '  When  to  sail  or  last  advices  f* 


741 


INSURANCE.  MARINE. 


742 


answer,  "Latter  part  of  March  20th  to  26th." 
Previous  to  making  the  application  one  of  the 
plaintiffs  had  a  conversation  with  the  mate  of 
the  "Bessie  Gracie,"  just  arrived  from  Porto 
Rioo,  who  informed  him  that  the  "Albert  M  " 
sailed  from  Mayaguez  on  the  21st  March,  that 
the  "  Bessie  Gracie  "  left  on  the  following  day, 
and  had  strong  head  winds  on  the  passage,  one 
day  very  hea\'y  and  rough. 

Hdd,  that  these  fact^  should  have  been  com- 
municated to  the  underwriters  to  enable  them  to 
make  such  inquiries  as  they  might  deem  prudent 
and  necessary. 

Aho,  that  the  withholding  of  the  actual  date 
of  sailing  was  clearly  a  concealment,  and  that 
the  answer  that  the  vessel  was  "  loading  last 
advices  "  was  a  misrepresentation  material  to  the 
risk  which  would  avoid  the  policy. 

Eisenhavitr  et  al.  v.  The  Provideiice 

Washiw/lon  /»w.  Co. , 
20  N.  S.  R.,'(8R.  &G.),  48. 

45.  Policy— General  words  In,  do  not  cover 

barratry  of  master — The  general  terms  ia  a 
policy  of  marine  insurance,  "all  other  perils, 
losses  or  misfortunes  that  have  or  shall  serve  to 
the  hurt,  detriment  or  damage  of  the  aforesaid 
vessel,  or  any  part  thereof,"  are  not  sufficient  to 
entitle  the  insured  to  recover  for  a  loss  occasioned 
by  the  barratry  of  the  master,  where  barratry  has 
not  been  expressly  mentioned  in  the  policy  as 
one  of  the  risks  insured  against. 

O'Connor  v.  Merchants'  Marine  Ins.  Co., 
20  N.  S.  R.,(8R.  &,G.,)514. 
Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada. 

9  C.  L.  T.,  209. 

46.  Policy  on  behalf  of  whom  it  may 

concern — Ratification — Defendant  resisted  pay- 
ment of  a  claim  under  a  policy  on  the  ground 
that  plaintifiTs  interest  as  mortgagee  had  been 
satisfied  from  the  proceeds  of  a  prior  insurance, 
and  also  on  the  ground  of  concealment  of  the 
fact  that  the  vessel  was  sailing  under  the  Hay- 
tian  flag.  It  appeared,  however,  thr^t  plaintiff 
had  insured  not  only  to  protect  his  mortgage, 
but  on  behalf  of  the  owners ;  or  if  not  so,  there 
was  ample  evidence  of  ratification,  and  the  Court 
therefore  discharged  the  rule  to  set  aside  the 
verdict  for  plaintifis. 

Seaman  et  riZ.  v.  West,  5  R.  &  G.,  207. 
On  appeal  to  the  Supreme  Court  of  Canada, 
Hdd,  affirming  the  judgment  below,  that  the 
underwriters  were  liable,  the  owners  having 
authorized,  or  subsequently  ratified,  the  insur- 
ance efi'ected  by  the  ship's  husband,  who  was 
under  no  obligation  to  disclose  his  individual 
interest,  in  a  policy  for  the  benefit  of  all  con- 


cerned, nor  to  disclose  the  nationality  of  the 
vessel,  there  being  no  representation  or  war- 
ranty required  respecting  it  by  the  policy,  and 
no  circumstances  within  his  knowledge  attach- 
ing to  the  national  character  of  the  vessel  expos- 
ing her  to  detention  and  capture. 

West  V.  Seaman,  16th  February,  ISSJ, 
Cas.  Digest,  219. 

47.    Premium— Complying  with  terms  of 

policy  as  to — The  insured  gave  a  note  for  the 
premium,  which  became  due  September  30th, 
1878.  On  account  of  their  failure  in  business 
previous  to  this  date  the  defendants  demanded 
and  received  a  guarantee  dated  August  6th,  1878, 
for  the  payment  of  the  note,  which  they  held  at 
the  time  of  the  loss,  October  r2th,  1878,  having 
never  returned  it  to  thj  makers  or  demanded 
payment  of  it  from  them.  The  policy  provided 
among  other  things  that  "should  the  person 
liable  for  the  premium  or  any  note  or  obligation 
given  therefore  fail  in  business  before  the  time 
for  payment  arrives,  this  insurance  shall  at  once 
become  and  be  void,  unless  and  until  before  loss 
the  premium  be  paid  or  satisfactorily  secured  to 
the  company." 

ffeld,  that  the  terms  of  the  policy  were  ful- 
filled and  the  policy  was  in  force,  the  premium 
having  been  "  satisfactorily  secured "  to  the 
company. 

Corbett  v.  Anchor  Marine  Ins.  Co., 

2R.  &G.,375; 
2C.  L.  T.,  107. 

On  appeal  to  the  Supreme  Court  of  Canada, 

ffeld,  affirming  the  judgment  below,  that  the 
premium  having,  on  the  insolvency  of  the  in> 
sured,  been  satisfactorily  guaranteed  to  the  com* 
pauy,  the  policy  was  thereby  kept  in  full  force 
and  efiect,  and  did  not  become  void  on  non- 
payment of  the  premium  note  at  maturity. 

Strong,  J. ,  dissenting. 

There  was  an  arbitration  clause  in  the  policy, 
by  which  arbitrators  were  to  decide  any  diflfer- 
ences  which  might  arise  between  the  company 
and  the  insured  "  as  to  the  loss  or  damage,  or 
any  other  matter  relating  to  the  insurance  "  in 
accordance  with  the  terms  and  conditions  of  the 
policy  and  the  laws  of  Canada,  and  the  obtain- 
ing of  the  decision  of  the  arbitrators  was  to  be 
a  condition  precedent  to  the  maintaining  of  an 
action  by  the  Insured  against  the  company.  After 
the  loss  the  matters  in  dispute  arising  out  of 
the  policy  were  submitted  to  three  arbitrators, 
who  awarded  1(6,769.29. 

Held,  that  the  award  was  binding  on  the 
company,  the  question  as  to  the  payment  or  de- 
fault in  payment  of  the  premium  being  a  differ- 
ence "  relating  to  the  insurance  "  within  the 


743 


INSURANCE,  MARINE. 


744 


meaning  of  the  policy,  and  the  award  not 
appearing  on  ita  face  to  be  bad  from  any  mistake 
of  law  or  otherwise. 

Anchor  Marine  Ins.  Co.  v,  Corhetf, 

9  S.  C.  R.,  73. 

48.  Prohibited  waters-  Saiing  with  Intent 

to  enter,  discharges  underwriters — A  vessel  in- 
sured under  a  time  policy,  with  a  clause  prohib- 
iting her  entering  the  Gulf  of  St.  Lawrence  or 
Straits  of  Northumberland  north  of  Cape  Porcu- 
pine in  the  Straits  of  Canso  after  the  tirst  of 
October,  set  sail  after  that  date  from  the  end  of 
the  wharf  at  Chimney  Corner,  C.  B. ,  bound  for 
Montreal,  and  stranded  about  a  quarter  of  a 
mile  from  the  end  of  the  wharf,  but  before  she 
had  cleared  the  harlwr. 

He/d,  that  in  view  of  tlie  proved  intention  to 
enter  the  prohibited  waters,  manifested  by  the 
imequivocal  overt  act  of  setting  sail  from  the 
wharf  at  Chimney  Corner  bound  for  Montreal, 
the  risk  insured  against  did  not  attach. 

Ohitvr  dictum,  that  for  the  purposes  of  this 
suit,  Chimney  Comer  ought  to  be  regarded  as  a 
port  in  Nova  Scotia. 

Hobertnon  et  al.  v.  Stair>f.,  1  R.  &  C,  345. 

49.  Beformlng  policy— Joseph  Banks,  one 

of  the  plaintiffs,  applied  for  a  policy  of  insurance 
on  the  brigantine  Sophia  by  tilling  up  a  printed 
form.  "J.  Banks  &  others"  were  entered  as 
owners,  and  the  "hull  arid  materials "  filled  in 
as  wliat  was  to  be  ins;urod  ;  and  the  application 
after  the  printed  words  "effect  the  alx)ve  on 
account  of,"  was  signed  "Joseph  Banks."  The 
policy  issued  by  the  Company  purported  that 
Joseph  Banks  did  make  assurance,  &c.,  but  the 
words,  "  or  whom  it  may  concern,"  were  not 
inserted  in  the  policy.  The  vessel  being  lost, 
the  plaintiffs  as  owners,  brought  action  on  the 
policy,  the  claim  being  resisted  on  the  ground 
that  there  was  not  a  total  loss,  but  on  the  trial, 
the  objection  was  raised  for  the  first  time  by  the 
defendant's  counsel  that  the  policy  covered  only 
the  interest  of  Joseph  Banks.  Plaintiffs  then 
brought  suit  in  the  Equity  Court,  to  have  the 
policy  reformed  on  the  ground  of  mistake,  and 
issues  were  settled  by  the  Eqnity  Judge  and 
tried  by  a  jury,  who  found  that  there  was  a 
mutual  understanding  between  the  parties  which 
the  policy,  as  executed,  did  not  carry  out,  and 
that  to  do  so  it  would  require  to  be  altered  by 
inserting  tlie  names  of  the  other  registered 
owners ;  which  finding  there  was  evidence  to 
justify. 

Held,  that  the  policy  must  be  reformed  so  as 
to  cover  the  interests  of  all  the  owners. 

Banks  ef,  al.  v.  Wilson,  R.  E.  D.,  210. 


50.  Heformlng  policy  to  make  It  agree 

with  memorandum — Plaintiffs  filled  up  an  ap- 
plication for  a  policy  of  marine  insurance, 
describing  the  risk  thus:  "voyage  at  and  from 
Block  House  Mines  to  Montreal,  vessel  arrived 
at  Sydney  2nd  August,  on  chartered  freight 
83000."  The  defendants  l)eing  authorized  to 
effect  the  insurance,  inserted  in  the  policy  with- 
out plaintiffs'  privity  the  words,  "  beginning  the 
adventure  upon  the  said  freight  from  and  imme- 
diately following  the  loading  thereof  on  l)oard." 
The  vessel  was  lost  at  Block  House  Mines  I>efote 
she  commenced  taking  her  cargo  on  board,  and 
plaintiff!  first  became  aware  of  the  insertion  of 
the  last  recited  words  in  the  policy  on  being  in- 
formed that  the  company  did  not  hold  them- 
selves liable. 

Held,  by  the  Judge  of  the  Equity  Court,  an 
action  having  been  brought  to  reform  the 
policy,  that  the  plaintiffs  had  a  right  to  as- 
sume that  the  company  in  preparing  the  policy 
would  strictly  adhere  to  the  terms  in  the  memo- 
randum, that  had  the  policy  been  so  prepared, 
tiie  plaintiffs  would  have  Ijad  a  right  to  recover 
under  it,  and  that  it  must  therefore  be  reformed 
accordingly. 

Wylde  et  al.  v.  Union  Marine  Inn.  Co., 
R.  E.  D.,  203. 

On  appeal  to  the  Sui>reme  Court  in  banco. 
Held,  that  the  powers  of  the   Equity  Court 
were  proporly  exercised  in  decreeing  the  recti- 
fication of  the  policy  so  as  to  make  it  conform 
with  the  application. 

Wylde  et  al.  v.  Union  Marine  Ins.  Co. , 
1  R  &  C,  20J. 

51.  Sale  by  master  of  ship  —  When  al- 
lowed— 

On  appeal  to  the  Privy  Coundl, 
Held,  that  the  master  of  a  vessel  has  no  power 
to  sell  her  so  as  to  affect  the  insurers,  except  un- 
der circumstances  of  stringent  necessity :   such 
circumstances  as,  after  sufficient  examination  of 
her  condition,  after  every  exertion  in  his  power, 
within  the  means  at  his  disposal,  to  extricate 
her  from  peril  or  to  raise  funds  for  the  repair, 
leave  him  no  alternative  but  to  sell  her  as  she  is. 
Gobequid  Marine  Insurance  Go.  v.  Barteaux, 
L.  R.,6P.  C.  319; 
32L.  T.,  510. 

5i.  Seaworthiness— ETldence-The  appli- 
cation for  marine  insurance  described  plaintiffs' 
vessel  as  "Al,"  the  fact  being  that  she  was 
classed  "  Al  "  American  Lloyds.  Defendanto 
pleaded  in  effect  that  the  vessel  was  unsea- 
worthy,  and  that  she  "  had  been  misrepresented 
to  be  a  sea-going  ship  claaed  '  Al '  in  Lloyds  or 


745 


INSURANCE,  MARINE. 


746 


some  similar  institution  for  the  classing  of  ship- 
ping ;  whereas  said  vessel  was  not  a  sea-going 
ship,  but  was  a  centreboard  canal  boat,  built  to 
navigate  inland  waters  only,  and  was  not  classed 
'  Al '  in  Lloyds  or  any  other  similar  institution, 
but  was  of  inferior  quality  and  of  no  class  what- 
ever." Evidence  was  given  that  she  was  "  per- 
fectly tight  for  two  days  only  after  leaving  port," 
and  also  tc  show  that  the  classification  of  "  Al  " 
American  Lloyds  did  not  give  an  ocean-going 
vessel  the  same  character  as  the  corresponding 
class  in  English  Lloyds.  The  weight  of  evi- 
dence on  this  point  seemed  to  be  with  tht  plain- 
tiffs, and,  as  to  unseaworthiness,  the  presump- 
tion arising  from  the  condition  of  the  vessel 
siiortly  after  leaving  port  as  above  described, 
was  rebutted  by  clear  evidence  that  she  was 
"in  good  condition  and  seaworthy  when  she 
sailed." 

Tlie  Court  upheld  the  verdict  for  the  plaintiffs. 

Eicartet  al.  v.  Mtrchantu'  Marine  Ini.  Co., 

1  R.  &  G.,  168. 

53.  Slip— Action  on,  wbere  plaintiff  could 

not  recover  on  policy— Prohibition — Limita- 
tion of  action— Plaintiff  insured  his  vessel  with 
certain  underwriters,  f>f  whom  defendant  was 
(ine,  and  among  ihe  conditions  of  the  policy  v  ere 
tliat  the  vessel  should  not  proceed  to  South 
Greenland,  and  tliat  any  action  upon  the  policy 
must  be  brought  within  twelve  months  after  the 
claim  for  loss  had  been  presented.  The  vessel 
was  lost  on  a  voyage  to  South  Greenland,  and 
tlic  action  was  not  brought  until  nearly  six  years 
after  receipt  of  proof  of  loss.  Plaintiff  conten- 
ilc<l  that,  independently  of  the  ptdicy,  they  could 
maintain  an  action  on  the  "  slip,"  and  also  tried 
to  explain  away  the  prohibition  as  to  .South 
Greenland  and  to  prove  a  waiver  of  the  condition 
limiting  the  time  for  bringing  the  action. 

Held,  that  no  action  coul'  '^c  maintained  upon 
the  "  slip  "  after  a  policy  had  been  executed  in 
pursuance  of  its  requirements,  and  accepted  and 
acted  upon  by  the  plaintiff,  and  the  plaintiff 
having  failed  to  remove  the  objections  founded 
upon  non-futilmentof  theconditions  above  stated, 
that  the  verdict  of  the  defendant  should  be  sus- 
tained. 

Rohert»on  v.  Lovett  ft  al.,  3  N.  S.  D.,  424. 

54.  Time  of  sailing -Statement  as  to,  in 

application  —  //tld,  that  company  properly 
inserted  a  warranty  in  the  policy  in  accor- 
dance with  the  statement  —  Plaintiff,  a  com- 
pany doing  marine  insurance  business  in  Mon- 
treal, were  in  the  hubit  of  granting  policies 
of  insurance  on  cargoes  of  grain,  and  of  re-insur- 
ing the  risks  in  five  Halifax  offices.  There  was 
an  oral  agreement  on  the  part  of  the  Halifax 


companies  to  dn  the  business,  "  if  the  risks 
suited  them."  On  the  17th  November,  1880, 
the  defendant  companies  accepted  an  application 
for  re-insurance  containing  the  words,  in  answer 
to  the  question  "  Where  to  sail  ?"  "  on  or  before 
the  20th  instant."  The  defendanto  inserted  in 
their  policies  a  warranty  that  the  vessel  would 
sail  as  stated.  She  did  not  so  sail,  but  left  sub- 
se<|uently,  and  got  on  shore  in  the  St.  Lawrence. 
It  appeared  that  it  was  the  practice  of  com- 
panies to  insert  such  statements  in  their  policies 
as  warranties,  and  that  when  time  was  extended, 
an  increased  premium  was  charged.  In  this 
case  an  application  for  an  extension  of  time  was 
made  and  refused. 

In  an  action  to  reform  the  policies  by  striking 
out  the  warranty. 

Held,  that  the  words  in  the  application  were 
not  a  mere  representation,  but  that  there  was  a 
mutual  contract,  by  which,  in  consideration  of 
the  defendants  agreeing  not  to  charge  more  than 
a  fixed  amount  for  premiumr,,  the  plaintiffs  con- 
tracted that  the  vessel  should  sail  within  the 
time  specified. 

That  the  statement  in  the  application  as  to 
the  time  of  sailing  was  properly  inserted  as  a 
warranty. 

Royal  Canadian  Insurance  Co.  v.  I'wjh  ; 
Do.  V.  Merchant'!'  Marine  /»).•*.  Co., 

20  N.  S.  R.,  (8  R.  &  G.,)  133 ;  8  C.  L.  T.,  .378. 

55.  Time  policy,  «bat  is  covered  by  a— 

A  time  policy,  unless  there  be  special  restric- 
tions, confers  the  power  of  sailing  from  any  port, 
domestic  or  foreign,  and  in  this  province  foreign 
employment  must  be  understood  to  be  as  much 
in  the  contemplation  of  the  owner  and  insurer  as 
domestic  use. 

Avon  Marine  Im.  Co.  v.  Bart  faux, 
2N.  S.  D.,  195. 

56.  Total  loss  witboat  notice  of  aban> 

donment— Recovery  for— Plaintiff" 's  vessel  was 
stranded  July  6th  on  the  western  side  of  Cape 
(ieorge,  in  a  sudden  and  violent  gale,  and  on  the 
following  morning  lay  on  her  side  exixjsed  to 
all  winds  from  the  north-east  and  south  on  a 
beach  composed  of  sand  and  boulders,  with  a 
reef  of  rocks  outside,  over  which  she  had  l)eaten 
at  high  water  the  previous  night.  The  master 
employed  surveyors  who  found  her  to  be  hogged 
and  strained,  with  butts  started,  rudder  un- 
shipped, anchor  and  chain  gone,  sails  and  rigging 
damaged,  and  the  tide  flowing  in  and  out  through 
an  injury  in  her  bottom,  the  extent  of  which 
could  not  be  liscertained,  and  on  their  recom- 
mendation, confirmed  by  the  judgment  of  the 
master,  she  was  advertised  on  the  7th  and  sold 
on  the  11th  July  for  $200. 


747 


INSURANCE,  MARINE. 


748 


In  a  few  days  she  was  repaired  and  kept  afloat 
for  eighteen  months,  when  she  went  on  shore, 
uninsured,  and,  although  she  might  have  been 
got  ofif  and  repaired,  the  owners  did  not  think 
her  worth  the  expense.  It  appeared  that  she 
could  never  be  repaired  so  as  to  \ie  tight,  although 
she  had  been  put  on  the  marine  slip  three  times 
for  that  purpose.  The  captain  went  to  Anti- 
gonish,  which  was  twenty  miles  distant,  on  July 
7th,  noted  his  protest,  and  telegraphed  to  the 
agents  of  the  vessel  in  Halifax,  who  informed 
dt^fendant  company,  but  did  not  give  notice  of 
abandonment.  The  company  telegraphed  to  their 
agent  at  Autigonish,  who,  on  the  8th  July,  pro- 
ceeded to  the  wreck  and  examined  her,  and  told 
the  captain  "she  was  a  hard  looking  sight  to 
try  and  get  off. "  The  agent  promised  the  cap- 
tain that  he  would  communicate  with  the 
insurers  by  letter  and  telegrapli,  and  would  be 
present  at  the  sale.  He  telegraphed,  and  could 
have  been  instructed  by  telegraph  in  time  for  the 
sale,  but  the  insurers  wrote  instead  of  tele- 
graphing, and  the  agent  did  not  attend  the  sale. 

J/ehl,  that  the  plaintiff  was  entitled  to  recover 
for  a  total  loss  without  notice  of  al)andonment. 

Weatlierbe,  J.,  (U.Hneiilin;i. 

Galloiihe.r  v.  Taylor,  1  R.  &  G.,  279. 

On  appeal  to  the  Sujn'eme  Court  of  Canada, 

Held,  that  the  sale  by  the  master  was  not 
justifiable,  and  tliat  the  evidence  failed  to  sliow 
any  excuse  for  the  master  not  communicating 
with  his  owner  so  as  to  recjuire  him  to  give 
notice  of  abandonment,  if  he  intended  to  rely 
upon  the  loss  as  to'AiI. 

Per  (iwynne,  J. — It  is  a  point  fairly  open  to 
inquiry  in  a  Court  of  Appeal,  whether  or  not,  as 
in  the  present  case,  the  inferences  drawn  from 
evidence  by  the  Judge  who  tried  the  case  with- 
out a  jury,  were  the  reasonable  and  proper 
inferences  to  l)e  drawn  from  the  facts. 

Gallaijher  v.  Taylor,  5  S.  C.  R.,  368. 

57.    Unseaworthiness  —  ETidence  —  Mew 

trial — Action  on  a  voyage  policy.  Plea — unsea- 
worthiness. The  vessel  sailed  from  Halifax  on 
the  6th  Octol)er ;  on  the  7th  was  found  to  be 
leaking,  but  was  readily  freed  of  water  ;  on  the 
8th  was  repaired  at  a  marine  slip  and  pronounced 
thoroughly  seaworthy.  Proceeded  on  the  voy- 
age next  day,  but  recommenced  leaking  ;  was 
again  repaired  and  resumed  the  voyage  on  the 
13th.  Arrived  at  the  iishing  grounds  on  the 
19th,  after  passing  through  a  severe  gale,  in 
which  she  strained  heavily.  Was  occupied  in 
fishing  until  the  18th  of  the  following  month, 
when  the  vessel  settled  down  so  rapidly  that 
the  crew  were  compelled  to  beach  her,  and  she 
was  sold,  bringing  a  very  small  sum. 


Held,  McCully,  J.,  dinsenf.ing,  that  the  e%'i- 
dence  of  the  gale  not  being  well  substantiated, 
and  under  the  other  features  of  the  case,  the  ver- 
dict for  plaintiff  should  be  set  aside  and  a  new 
trial  ordered. 

Conditions  imposed  in  granting  new  trial  as 
to  costs  of  first  trial  and  of  the  argument. 

Irvine  v.  The  Xot^  Scotia  Marine  Iwi.  Co. , 

2N.  S.  D.,510. 

58.  Usage  not  known  or  acquiesced  in  by 

underwriters  does  not  bind  them — Usage,  how 
proved — Where  a  cargo  insured  "at  and  from 
Arichat  to  Halifax"  was  shipped  at  Petit  de 
(J rat,  a  port  nearer  to  Halifax,  and  distant  nine 
miles  from  Arichat  by  water,  and  one  and  a  half 
miles  by  land,  and  which  by  the  usage  of  trade 
in  Richmond,  the  county  wherein  both  ports  are 
situated,  appeared  to  be  generally  considered 
and  treated  by  merchants  there  and  by  the 
masters  of  coasting  vessels  in  Isle  Madame,  the 
large  island  wherein  said  ports  are  situated,  and 
also  partly  l)y  merchants  in  Halifax,  as  one  and 
the  same  port  with  Arichat ;  the  custom  house 
for  both  ports  was  at  Arichat ;  and  the  vessel 
and  cargo  were  lost  shortly  after  the  vessel  left 
Petit  de  (Jrat. 

Held,  that  tliis  usage  <lid  not  bind  under- 
writers unless  known  to  or  acquiesced  in  by 
them  ;  and  no  evidence  of  such  knowledge  or 
acquiescence  having  beer,  given,  that  the  policy 
never  attached,  and  the  underwriters  therefore 
were  not  liable. 

Usage  must  be  proved  by  instances,  and  not 
by  the  opinion  of  witnesses. 
Hennesxey  v.  yew  Yo}'k  Mutual  Mar.  Int.  Co., 

1  Old.,  259. 

59.  Warranty— Misrepresentation  on  mate' 

rial  point  in  application— Plaintiffs,  an  insur- 
ance company  doing  marine  insurance  busi- 
ness at  Montreal,  sought  to  compel  the  de- 
fendants, a  company  engaged  in  similar  business 
at  Halifax,  to  add  a  re-insurance  clause  to 
a  policy  issued  by  them  on  the  ship  "  Bayue  " 
after  the  occurrence  of  a  loss.  The  application 
had  been  made  for  insurance  in  the  ordinary 
form  without  reference  to  re-insurance,  but  the 
plaintiffs  relied  on  a  verbal  agreement  or  under- 
standing between  the  two  companies  that  the  de- 
fendants would  re-insure  risks  taken  by  the 
plaintiff  company  'f  the  risks  suited  them,  and 
on  the  fact  that  though  this  agreement  had  ter- 
minated the  course  of  dealing  had  been  the  same, 
the  re-  insurance  clause  being  added  to  all  poli- 
cies as  a  matter  of  course  when  returned  to  the 
defendant  company  for  that  purpose.  The  ap- 
plication dated  November  6th,  1880,  contained 


749 


INTEREST  ON  MONEY. 


750 


the  question,  "When  to  sail?"  and  the  answer, 
"  on  or  before  20th  inst." 

The  vessel  was  prevented  from  leaving  on  the 
20th  by  a  snow  storm,  and  application  wm  made 
to  the  defendant  company  to  extend  the  time  for 
sailing  to  the  22nd,  and  refused. 

Hdd,  that  the  defendant  company  had  the 
right  to  insert  a  warranty  clause  in  the  policy, 
and  had  they  done  so  the  misrepresentation, 
being  on  a  material  vital  point,  would  have  pre- 
vented the  policy  from  attaching. 

That  the  re-insurance  clause  lieing  overridden 
by  tiie  warranty  would  not  have  enabled  the 
plaintiff  company  to  recover  even  if  added. 
Royal  Ins.  Co,  v.  Jones,  et  al. , 
20  N.  S.  R.,  (8  R.  &G.),  123. 


INTEREST  ON  MONET. 

1.  Claim  to,  Indorsed  on  writ— A  special 

inilorsenieut  on  a  writ  claiming  interest,  on  a 
sum  named,  from  tlie  date  of  the  writ  until 
judgment,  gives  a  plaintiflF  no  right  to  interest  in 
cases  wiiere  he  is  not  otherwise  entitled  to  it. 
Where  a  demand  is  made  in  writing,  under  the 
Interest  Act  (Revised  Statutes,  second  series, 
chapter  82,  section  4),  giving  notice  to  the  debtor 
tluit  interest  will  be  claimed,  it  is  still  in  the 
option  of  the  jury,  or  of  the  Court,  when  there 
is  no  jury,  to  allow  or  reject  the  interest  as  they 
shall  think  fit. 

Xorris  v.  Taylor,  1  N.  S.  D.,  491. 

2.  Determined  by  rate  at  place  of  pay- 
ment—A verdict  for  plaintiff  for  $2670,  "  with 
interest,"  is  a  verdict  on  which  judgment  m  vy 
be  entered  up,  though  the  note  on  which  the 
action  was  brought,  payable  in  Boston,  U.  S., 
specified  no  rate  of  interest ;  the  rate  of  interest 
at  the  place  of  payment,  at  the  time  of  the  trial, 
to  l)e  ascertained  by  a  Master  of  the  Court. 

SmUher  ef  al.  v.  Wallace,  2  R.  &  C,  548  ; 

1  C.  L.  T.,  556. 
On  appeal  to  the  Supreme  Court  of  Canada, 
Held,    reversing  the  judgment  below,   inter 

alia  that  the  jury  should  have  been  directed  as 
to  interest. 

2  S.  C.  R.,  598. 

3.  No  contract  to  pay— The  affldarlt  stated 

the  debt  to  be  for  goods  sold  and  for  interest, 
without  alleging  a  contract  to  pay  interest,  or 
distinguishing  the  amount  due  for  interest. 

//"-Id,  that  this  was  a  defect  which  might  be 
cured  by  waiver,  and  that  it  was  so  cured  in  this 
case  by  lapse  of  time,  and  a  step  taken  in  the  cause 
(though  the  step  itself  was  a  nullity),  as  it  ap- 
peared that  the  attachment  was  issued  in  June, 


1862,  and  the  defendant,  in  July,  1862,  by  letter 
spoke  of  the  suit  and  admitted  the  debt, — that 
judgment  was  entered  in  May,  1863,  and  that  the 
defendant  filed  an  appearance  and  plea  on  ?rd 
October  without  leave. 

Allan  v.  Camoell,  1  Old.,  405. 

4.  Interest  added  under  power  In  rale 

to  increase  verdict— 

See  CONTRACT,  31. 

5.  On  Judgment— No  claim  for  interest 

arises  upon  a  recorded  judgment  until  lauds  are 
actually  sold  under  execution,  and  there  is  a 
surplus  after  paying  the  debt  and  costs. 

In  instructing  a  sherifT  to  levy  an  execution, 
it  is  irregular  to  direct  him  to  levy  for  interest 
on  the  amount  of  the  judgment. 

Fleiijer  v.  Taylor,  James,  137. 

6.  On  goods  sold— From  what  time  re- 

coverable — Interest  is  recoverable  on  goods 
sold  on  credit  from  ihe  date  at  which  the  credit 
expired,  where  such  is  the  usage  of  trade  at  the 
place  where  the  goods  are  sold,  although  there 
may  havfj  been  no  previous  dealings  between  the 
parties,  no  engagement  to  pay  interest,  and  no 
notice  under  the  statute  that  interest  would  be 
claimed, 

Bannerman  et  al.  v.  Fullerton, 

1  Old.,  200. 

7.  On  money  on  deposit  In  Court— Under 

31  Vic,  c.  12,  and  37  Vic,  c.  13,  the  Minister 
of  Public  Works  of  the  Dominion  of  Canada 
appropriated  to  the  use  of  the  Dominion  certain 
lands  in  Yarmouth  County  known  as  "  Bunker's 
I.iland."  In  accordance  with  said  Acts,  on  the 
2nd  April,  A.  D.,  1875,  he  paid  into  the  hands 
of  W.,  prothonotary  at  Halifax,  the  sum  of 
$6,180  as  compensation  and  interest,  as  provided 
by  those  Acts,  to  be  thereafter  appropriated 
among  the  owners  of  said  island.  This  sum  was 
paid  at  several  times,  by  order  of  the  Supreme 
Court  of  Nova  Scotia,  to  one  A.,  as  owner,  to 
one  G.,  as  mortgagee,  and  to  others  entitled,  less 
ten  dollars.  As  the  money  had  remained  in  tlu 
hands  of  W. ,  the  prothonotary  of  the  Court,  for 
sometime,  H.,  attorney  forG.,  applied  to  the 
Supreme  Court  for  an  order  of  the  Court  calling 
upon  W.,  the  prothonotary,  to  pay  over  the 
interest  upon  G.'s  proportion  of  the  moneys, 
which  interest  (H.  was  informed)  had  been  re- 
ceived by  the  prothonotary  from  the  bank  where 
he  had  placed  the  amount  on  deposit.  W.  re- 
sisted the  application,  on  the  ground  that  he 
was  not  answerable  to  the  proprietor  of  the 
principal,  or  to  the  Court,  for  interest,  but  did 
not  deny  that  interest  had  been  received  by  him. 
A  rule  nisi  was  granted  by  the  Court  and  made 


751 


INTERPLEADER. 


752 


absolute,  ordering  the  prothonotary  to  pay  what- 
ever rate  of  interest  he  received  on  the  amount. 

Held,  1.  That  the  prothonotary  was  not  en- 
titled to  any  interest  which  the  amount  deposited 
earned  while  under  the  control  of  the  Court. 
That,  in  ordering  the  prothonotary  to  pay  over 
the  interest  received  by  him,  the  Court  was 
simply  exercising  the  summary  jurisdiction 
which  each  of  the  Superior  Courts  has  over  all 
its  immediate  otficers. 

Fournier  and  Henry,  JJ.,  dixxentiiuj. 

2.  That  the  order  appealed  from,  being  a 
decision  on  an  application  by  a  third  party  to 
the  Court,  wos  appealable  under  the  11th  sec. 
of  .38  Vic,  c.  11. 

Fournier,  J.,  dixieiitiiitj,  and  Taschereau,  J., 
duhitante. 

Reported  below  as,  Iti  re  Bunker'n  Islniid, 

a  R.  &  C,  367  ; 
On  appeal  as,  WUkiiui  v.  Onldet, 

3S.  C.  R.,203. 

8.  and  Rev.  Stats.,  c.  82— More  than 

legal  interest— Penalty  for  taking— Plaintiff, 
with  his  brother,  the  Rev.  G.  P.,  entered  into  a 
promissory  note  Nov.  ,SOth,  1867,  by  which  they 
agreed  to  pay  to  the  order  of  D.  &  Co.,  the 
defendants,  S1400,  with  interest,  in  one  year 
after  date.  When  the  note  fell  due,  interest  at 
the  rate  of  six  per  cent,  was  paid  upon  it,  and 
the  note  was  allowed  to  lie  over.  On  Dec.  3rd, 
1869,  plaintiff  paid  another  year's  interest,  with 
two  per  cent,  additional,  which  defendants  de- 
manded for  extending  the  time. 

Held,  that  the  additional  charge  so  made  was 
within  the  prohibition  against  taking  n.'ire  than 
legal  interest,  contained  in  chapter  82,  Revised 
.Statutes  (2nd  series),  and  that  defendants  were 
liable  to  the  penalties  therein  imposed. 

Patterson  v.  Dnffm  etal.,3  N.  S.  D.,  52. 

9.  Usury— Defence  of— Evidence  of  usury 

— To  an  action  on  a  promissory  note  defendant 
pleaded  usury.  The  note  was  expressed  to  be  for 
the  sum  of  £40,  but  the  evidence  went  to  show 
that  defendant  actually  received  only  £38,  al- 
though he  paid  interest  upon  the  larger  amount 
for  the  spjice  of  two  years. 

Held,  that  the  transaction  was  usurious,  and 
that  plaintiff  coidd  not  recover. 

Hu  ..'.'twon  v.  Dill,  2  N.  S.  D.,  448. 

10.  Usury— Defence  of -No  evidence  of 

loan — Action  by  indorsee  against  maker  on  a 
promissory  note  expressed  to  be  for  the  amount 
of  £40  198.  3d.  Defence,  usury.  The  note  ha<l 
been  transferred  from  the  payees  to  the  plaintiff 
for  the  sum  of  £37,  it  being  then  overdue,  and 


defendant's  liability  upon  it  amounting,  with 
interest  accrued,  to  £42  13s.  3d.  There  l>eing 
nothing  to  show  that  the  transaction  partook  in 
any  degree  of  the  nature  of  a  loan,  and  the  jury 
having  found  that  it  wac  in  fact  a  bona  fide  sale 
of  the  note  for  what  the  parties  considered  its 
marketable  value, 

Held,  Wilkins,  J.,  disitentiwj,  that  the  Usury 
Act  had  no  application,  and  the  plaintiff  shoidd 
recover  the  full  amount. 

Whedock  v.  Chedey,  2  N.  S.  D.,  49. 


INTERNATIONAL  LAW. 
See  FOREIGN  LAW. 


INTERPLEADER. 
1.    County  Court  has  power  to  srant 

interpleader  —  The  County  Court  has  power 
to  grant  relief  under  the  sections  of  the  Practice 
Act,  "Of  Interpleader." 

Cooittr  V.  Mylne,  2  R.  &  C,  382. 

a.    Ii!  cases  of  Interpleader,  the  Court 

may  consider  the  equitable  rights  of  the  par- 
ties— M.  Brothers,  prior  to  making  an  assign- 
ment under  the  Insolvent  Act,  transferred  cer- 
tain policies  of  insurance  to  the  plaintiff,  to  whom 
they  were  largely  indebted  for  advances.  The 
assignee  having  claimed  the  insurance,  tiie  insur- 
ers applied  for  and  obtained  an  interpleader. 

Held,  that  though  policies  are  usually  assigned 
in  writing,  a  mere  verbal  assignment,  witii  de- 
livery, gives  tlie  assignee  an  e(|uitable  right  to 
the  proceeds. 

Alxo,  that  in  cases  of  interpleader,  a  court  of 

law  may  consider    the  equitable    rights  of  tiie 

parties. 

Maiming  v.  Bowman,  3  N.  S.  1).,  4'2. 

3.  Interpleader  -Replevln-Fresta  secur- 
ity— Where  plaintiff  had  in  the  first  instance 
given  the  replevin  bond  in  the  form  provided  in 
the  statute  and  a  new  defendant  had  been  substi- 
tuted in  the  action  as  defendant  in  the  place  of 
the  original  defendants  tmder  an  interpleader 
summons  taken  out  by  the  latter. 

Held,  per  Ritchie,  J.,  at  Chambers,  that  there 
is  no  power  to  direct  the  plaintiff  to  furnish  a 
new  bond  or  other  security  to  the  substituted 
defendant. 

Quaere,  whether  the  bond  afforded  any  secur- 
ity to  the  substituted  defendant. 

McDonald  v,  Km-tosk,  March  4th,  1S90. 

Unreported. 


758 


IN'^ERROGATORIES. 


754 


4.  Mortgagee-CoTensnt  by  mortgagor  to 

insure  for  benefit  of,— Mortgagor  insures  on 
bis  own  account— Action  brought  by  mort- 
gagor for  insurance— Right  of  mortgagee  to 
interplead  —  PlaintifiF  mortgaged  certain  pro- 
perty to  C.  for  $434.{X),  and  covenanted  in  the 
mortgage  to  keep  it  insured  for  S.'HM)  in  the 
name  and  for  the  benefit  of  the  mortgagee. 
8ul)8e(iuently  plaintiflF  effected  insurance  to  the 
amount  of  $'uO  on  his  own  account,  without 
reference  to  the  mortgagee,  3!180  of  whicli  was  on 
personal  property,  not  covered  by  the  mort- 
gage. After  loss  by  fire,  the  mortgagee,  finding 
that  the  insurance  was  not  in  his  name,  de- 
manded an  assignment  of  the  policy,  ofTering  to 
secure  to  plaintiff  the  amount  due  him,  and 
upon  Ills  refusal,  claimed  the  amount  from  the 
company.  Defendants  paid  the  81  SO,  and  upon 
action  brought  for  the  balance,  an  interpleader 
order  waf.  made. 

//(/(/,  that  the  insurance  inured  to  the  benefit 
(if  tiie  mortgagee,  and  that  he  was  entitled  to 
interplead,  although  the  claim  of  the  mortgagee 
was  an  equitable  claim,  and  the  company  was 
under  a  contractual  obligation  to  the  plaintiff, 
and  altliough  the  claim  of  the  mortgagee  was 
smaller  than  the  amount  insured. 

McKmzie  v.  yElna  Iiimimnce  Co., 

R.  E.  D.,  346. 

3.  Requisites  of  affidavits  for,  as  to  col- 
lusion—Parties out  of  jurisdiction  —  Orders 
wee  granted  by  a  County  Court  Judge  to  allow 
two  parties  to  interplead  in  an  action  of  reple- 
vin. The  affidavit  of  the  defendant  set  out  that 
he  did  not  collude  with  the  plaintiff,  but  not 
lliat  he  did  not  collude  with  the  parties  sought 
to  be  brought  in  as  defendants. 

Held,  a  fatjil  objection. 

Hdd,  further,  that  the  affidavits  were  defec- 
tive in  not  showing  that  the  defendant  "  claimed 
no  interest  in  the  subject  matter  other  than  for 
charges  or  costs,"  (5th  R.  S.,  c.  104,  O.,  Ivi., 
R.  '2),  and  that  so  far  from  showing  a  prima  facie 
right  in  the  parties  sought  to  be  brought  in  they 
negatived  such  right. 

Quaere,  whether  the  orders  coidd  be  upheld 
where  the  parties  sought  to  be  brought  in  were 
out  of  the  jurisdiction. 

McDonald  v.  McKenzie,  20  N.  S.  R., 
(8  R.  &G.),  527. 


INTEBR06AT0RIE8. 

t.  Action  for  account- Order  to  ftirther 

answer  interrogatoriea  —  Facts  material  to 
plaintiffs'  case— Disoretion  of  Judge- In  an 


action  for  an  account  in  relation  to  partnership 
dealings  between  plaintiffs  and  defendant,  re- 
specting the  purchase  and  sale  of  a  mine,  and 
for  payment  of  plaintiffs'  share  which  was 
alleged  to  have  been  improperly  received  and 
retained  by  defendant,  plaintiffs  after  the  com- 
mencement of  the  action,  obtained  an  order 
recpiiring  defendant  to  answer  certain  interroga- 
tories. Afier  receiving  defendant's  answer,  a 
further  order  was  obtained  from  a  Judge  at 
Chambers,  requiring  defendant  to  attend  before 
a  Master  for  further  examination  as  to  matter 
contained  in  certain  of  the  interrogatories. 

Defendant  appealed,  on  the  ground  that  he 
was  not  obliged  to  answer  »mtil  plaintiffs  had 
first  established  their  interest. 

It  appearing  that  the  facts  sought  to  lie  elicited 
by  the  interrogatories,  were  essential  to  the 
plaintiffs'  case. 

Held,  that  there  was  no  ground  for  interfering 
with  the  discretion  of  the  Judge  below,  and  that 
the  defendant  must  answer  as  required. 

Jenkins  et  al.  v.  Tupper,  7  R.  &  O.,  506  ; 
8  C.  L.  T.,  62. 

2.  Foreign  Companies  ordered  to  answer 

— The  Court  will  order  a  defendant  corporation 
doing  business  in  Nova  'jcotia,  though  incor- 
porated abroad,  to  answer  interrogatories,  under 
4th  R.  S.,  c.  96. 

The  officers  of  such  company  can  be  interroga- 
ted, though  not  mentioned  by  name  in  the  com- 
mission to  interrogate. 

Hart  et  al.  v.  Western  Union  Tel.  Co., 

2R.  &C.,535. 

3.  Order  for  delivery  of,  Ac— An  order 

was  made  by  a  Judge  at  Chambers  giving  defen- 
dant leave  to  deliver  interrogatories  to  a  number 
of  officials  of  the  plaintiff  bank  and  refjuiring 
such  officials  to  make  discovery  on  oath  of  certain 
documents,  correspondence,  &c.  At  the  time 
the  order  was  granted  no  defence  to  the  action 
had  l>een  delivered. 

Held,  that  under  O.  xxxi,  R.  1,  the  Judge  had 
a  discretionary  power  to  make  such  order  before 
the  delivery  of  the  defence. 

Aho,  that  the  objection  to  the  order  on  the 
ground  that  it  ordered  discovery  and  inspection 
as  well  as  the!  delivery  of  interrogatories,  could 
not  be  sustained. 

The  Commercial  Bank  of  Windsor  v.  Beckwith, 
7R.  &G.,527;  8C.  L.  T.,  60. 

4.  Practice  on  taking  rule  tor  -  In  taking 

out  a  rule  for  interrogatories,  a  rule  nisi  should 
be  taken  and  not  a  rule  absolute  in  the  first 
instance. 

Ckambera  v.  HwUer,  2  N.  S.  D.,  144. 


755 


INTOXICATING  LIQUORS. 


756 


INTE8TATE- 
See  EIE€VTOBS  AND  ADMINI8TBATOR8. 


INTOUCATING  LIQUORS. 

1.  Charges  for,  in  aceonnt-In  an  action 

•on  tlic  coniinon  counts,  the  County  Court  Judge 
non-suited  the  plaintiff  on  the  ground  that  items 
for  intoxicating  liquors  in  quantities  of  less  than 
one  gallon  were  in  plaintiff's  claim  though  not 
included  in  the  account  sued  on.  Plaintiff  on 
the  appeal  claimed  that  he  should  have  judg- 
ment, having  proved  his  particulars  at  the  trial, 
but  the  Court  refused  it  and  granted  simply  the 
usual  order  allowing  the  appeal. 

McOowan  v.  HoUkn,  3  R.  &  G.,  266. 

2.  Druggist  license— Right  to  sell,  under— 

Defendant  was  convicted  before  the  Stipendiary 
Magistrate  for  the  police  division  of  Yarmouth, 
«f  selling  intoxicating  liquors  without  license,  and 
.appealed  to  the  County  Court,  contending  t  liat  the 
Stipendiary  Magistrate  had  no  jurisdiction,  as  the 
Act  for  appointing  Stipendiary  Magistrates,  and 
thus  creating  a  court,  was  xdtra  vires  ;  iliat  there 
had  been  no  statement  of  claim  filed  l)efore  the 
issue  of  the  writ,  as  provided  by  4th  R.  S.,  cap.  91, 
sec.  3,  and  that  he  was  justified  in  selling  liquors 
to  be  used  medicinally  by  virtue  of  his  l>eiug  a 
licensed  druggist,  although  no  appointment  had 
been  made  by  the  Sessions  under  4th  R.  S.,  cap. 
75,  sec.  41 .  The  sales  were  made  by  the  defendant 
and  his  clerk,  indiscriminately,  and  without  a 
doctor's  prescription.  The  judgment  of  the 
County  Court  dismissing  the  appeal  was  affirmed 
with  costs. 

Gardner  v.  Parr,  2  R.  &  C,  225 ; 
1  C.  L.  T.,  710. 

3.  Imprisonment  under  couTlction  for 

violating  law  relating  to  sale  of,— By  an  Act 
of  the  Provincial  Legislature,  a  Town  Court  was 
constituted  for  the  incorporated  Town  of  Truro, 
to  be  presided  over  by  the  Recorder  or  Stipen- 
diary Magistrate,  the  two  offices  being  filled  by 
the  same  person.  It  was  enacted  that  the  Town 
Court  should  have  and  possess  all  the  powers  in 
civil  matters  within  the  municipality  conferred 
on  one  or  more  Justices  of  the  Peace  or  Stipen- 
diary or  Police  Magistrates  by  an  Act  of  the 
Province.  The  prisoner  was  convicted  of  a 
violation  of  the  license  laws  by  selling  intoxi- 
cating liquors  contrary  to  law,  as  for  a  third 
offence,  and  while  in  jail  was  again  convicted 
of  a  fourth  offence,  the  aunimons  issuing  out  of 


the  Town  Court,  and  the  executions,  in  the 
form  4th  R.  S.,  cap.  75,  Schedule  F,  being  signed 
by  the  Stipendiary  Magistrate  as  the  officer 
presiding  in  that  Court. 

On  a  motion  for  a  hahe<M  corpus, 

Held,  that  the  matter  came  within  the  juris- 
diction of  the  Town  Court  as  above  defined, 
and  that  the  imprisonment  was  lawful,  although 
the  execution  specified  no  definite  period. 

Weatherl)e,  J.,  dinHenting. 

In  re  Simon  Franer,  1  R.  &  G.,  ,^54. 
^ee  HABEAS  CORPUS,  3. 

4.  Petition  for  license— New  petition  re< 

quired  each  year — The  Court  of  Sessions  for  tlie 
County  of  Halifax  granted  a  license  for  the  sale  of 
intoxicating  liciuors  to  \V.  for  the  year  1875,  on 
tlie  recommendation  of  the  grand  jury  and  on  a 
petition  of  two  thirds  of  the  rate-payers,  whicli 
had  been  presented  and  used  as  the  basis  of  a 
similar  license  in  1874. 

Held,  tliat  under  c.  75,  s.  3,  4th  Rev.  Stata. , 
the  petition  for  1874  was  not  sufficient,  but  thac 
a  new  petition  should  have  been  presented  to 
support  the  new  license,  and  that  the  proceedings 
of  the  Court  of  .Sessions  in  granting  the  license 
must  be  quashed. 

In  re  Liquor  License,  County  of  Halifax, 

1  R.  &  C,  257. 

5.  Practice  on  conviction  for  selling— 

W  here  a  summons  for  selling  liquor  contrary  to 
law  was  issued  by  two  Justices  of  the  Peace, 
and  the  cause  tried  before  one  of  them  and  a 
Justice  who  had  signed  the  summons, 

Held,  that  the  conviction  must  be  set  a^side. 
Weeks  v.  Bonham,  2  R.  &  C,  377. 

6.  Subsequent  offence— Meaning  of,  in  4th 

R.  S.,  C.  75,  8.  6 — The  words,  "  every  subsequent 
offence  "  in  4th  R.  S. ,  chapter  75,  section  6,  and 
"  subsequent  offences  "  in  39  Victoria,  c.  1,  s.  7, 
means  offences  committed  subsequently  to  the 
last  previous  conviction. 
Wilkins,  J.,  disnentin;/. 

McOreijor  v.  McArcher,  2  R.  &  C,  362. 

7.  Proceedings  before  Justices  of  the 

Peace  for  violation  of  laws  relating  to— 

.S^ee  JUSTICES  OF  PEACE. 

8.  Removal  of  convictions  for  violation 

of  laws  relating  to,  by  certiorari— 

See  CBRTIOBABI. 

9.  Yiolatlons  of  Canada  Temperance  Act- 

See  CANADA  TEMPERANCE  ACT. 


757 


JOINT  STOCK  COMPANIES. 


758 


JOINDER- 
See.  PKACTICE. 


JOINT  SPECULATION. 
Where  a  partf  has  been  authorized  to 

enter  into  a  apeculatiou  on  the  joint  account  of 
liiniself  and  others,  and  the  negotiation  has  been 
l)rokei>  oflF,  he  cannot  afterwards  renew  it  on 
his  own  account,  and  purcliase  for  his  own  bone- 
Jit,  witho^it  first  notifying  the  other  parties,  so 
as  to  give  them  an  opportunity  of  uniting  with 
liim  in  the  purchase,  if  so  disposed. 

Allan  et  al.  v.  Mcffefey,  1  Old.,  120. 


JOINT  STOCK  COMPANIES. 

1.   Bankruptcy  and  insolvency  —  Act  of 

Local  Legislature  to  wind-up  companies— Con- 
iributoriea — Proceedings  were  taken  under  an 
Act  of  the  Provincial  Legislature  (Acts  1S79,  c. 
52),  to  wind  up  the  company  on  the  ground 
that  it  was  heavily  embarrassed  and  could  not 
extricate  itself  without  having  recourse  to  the 
duulile  liability  of  the  shareholders.  The  Act  of 
incorijoration  provided  tliat  transfers  of  shares 
should  be  valid  and  effectual  for  all  purposes 
from  the  time  they  were  made  and  entered  in 
the  books  of  the  conii>any.  Three  of  the  share- 
holders claimed  that  they  were  not  contribu- 
tories  on  the  ground  that  certificates  of  stock 
were  never  accepted  by  them,  but  it  appeared 
that  tlie  certificates  were  issued  to  them  by  di- 
rection of  the  former  shareholder  froii|  whom 
they  were  transferred  ;  that  this  was  approved 
of  by  the  directors,  and  the  certificates  were 
handed  to  the  transferor,  and  afterwards  received 
by  two  of  the  tra,nsferees,  who  were  registered 
as  stockholders  in  the  company's  books  and 
never  repudiated  the  transaction.  The  third 
transferee  waa  also  registered,  and  was  elected  a 
■director  previous  to  his  repudiating  the  transac- 
tion, which  he  did  not  do  until  after  it  became 
apparent  that  the  affairs  of  the  company  were 
embarrassed.  Another  class  of  stockholders 
claimed  to  be  exempt  on  the  ground  that  they 
had  surrendered  their  shares  to  the  company. 
Tiiis  surrender  had  been  made  and  accepted  by 
the  company,  but  the  parties  surrendering  knew 
that  the  afifairs  of  the  company  were  embar- 
rassed, and  it  was  with  a  view  of  escaping  lia- 
bility that  the  surrender   were  made. 

Held,  that  the  provisions  of  the  Act  were 
within  the  legislative  authority  of  the  Provincial 


Legislature,  and  that  neither  class  of  stockhold- 
ers could  be  exempted  from  contribution. 

Held,  alio,  that  where  there  was  no  registra- 

ation  on  the  Iwoks,  and  the  pivrty  sought  to  l)e 

made  liable  had  never  deemed  himself  absolute 

owner,  nor  acted  as  such,  there  was  no  liability. 

In  re  The  Wallace  Huestui  Grey  Stone  Co. , 

R.  K.  D.,481  ;  .3  Cart. ,  .374. 

2.  Club-Hallflix  Tacht  Club-WIndlns-up 

Act  does  not  apply  to— The  petitioner,  as  ad- 
ministratrix, recovered  judgment  against  the 
Halifax  Yacht  Club,  and  issued  execution,  which 
was  returned  unsatisfied,  there  being  no  assets. 
She  then  resorted  to  the  individual  liability  of 
the  corporators,  under  4th  R.  S. ,  o.  .'S.S,  s.  1 3,  but 
the  Supreme  Court  decided  that  the  section  did 
not  apply  to  such  a  corporation.  Petitioner 
then  applied  to  have  the  afifairs  of  the  company 
wound  up. 

Held,  that  the  Provincial  Act  in  reference  to 
winding-up  of  companies,  dififering  from  the 
English  Act  in  that  it  was  expressly  made  ap- 
plicable to  clubs,  could  be  invoked  for  the  pur- 
pose of  winding  up  the  Halifax  Yacht  Club,  but 
that,  as  there  was  no  individual  liability,  and  it 
was  admitted  there  were  no  assets,  the  prayer 
of  the  petition  should  not  be  granted,  as  it 
would  only  create  needless  litigation. 

In  re  The  Halifax  Yacht  Club,  R.  E.  I).,  47.5. 

3.  Costs— Security  for— Defendant  com- 

pany  incorporated  in  Province,  but  registered 
in  England— Security  for  costs  ordered  where 
the  insolvent  plaintiff  company,  though  incor- 
porated in  the  Province,  was  registered  in 
England,  and  had  its  directory  and  place  of 
business  there,  and  the  parties  using  the  name 
of  the  company  in  the  suit  were  not  in  the 
Province. 

Cape  Breton  Co.  (Limited)  v.  Dodd  et  al., 

R.  E.  D.,  .326. 

4.  Distinction  between  membership  In, 

and  part  ownership  of  corporation  property— 
Plaintiff,  in  1874,  agreed  with  a  number  of 
Halifax  merchants  to  subscribe  ?4000  towards 
a  steamship  enterprise,  and  assist  in  getting  a 
suitable  ship,  provided  he  should  be  master. 
He  was  appointed  master,  and  the  wages  were 
fixed  at  $1200.  The  company  was  incorporated 
in  1875,  by  Act  of  the  Dominion  Parliament, 
and  the  plaintiflF  received  stock  to  the  amount 
of  his  contribution.  After  running  for  some 
time,  it  was  found  that  the  enterprise  was  sink- 
ing money  rapidly,  and  in  1876  a  new  arrange- 
ment was  entered  into,  by  which  the  plaintiff 
was  to  supply  the  ship  with  men,  and  provisions 
for  the  passengers  and  crew,  and  sail   her  as 


769 


JOINT  STOCK  COMPANIES. 


760 


commander,  for  $900  ii  month,  afterwards  in- 
creased to  8950.  The  ship  had  been  originally 
accustomed  to  remain  at  St.  Pierre,  forty-eight 
hours,  but  the  time  was  afterwards  lengthened 
to  sixty  hours  by  the  company,  yet  the  plaintiff 
insisted  on  remaining  only  forty-eight  hours, 
against  the  express  directions  of  the  company's 
agents  at  St.  Pierre,  and  was  otherwise  dis- 
obedient to  the  agents,  and  treated  them  with 
gross  insolence,  in  consequence  of  which  he  was 
dismissed  from  the  service  of  the  company. 

There  was  a  verdict  of  $2000  for  plaintiff. 

Held,  that  tlie  dismissal  was  justifiable ;  that 
the  plaintiff  was  not  a  part  owner  of  the  ship, 
and  could  not  exercise,  independently  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  con- 
sidered as  the  ordinary  case  of  a  master  dis- 
missed by  the  owners. 

Sir  W.  Young,  C.  J.,  diHHentimj,  held,  that 
while  the  plaintiff  would  have  had  no  redress 
had  he  been  in  the  ordinary  position  of  a  ship- 
master dismissed  by  a  majority  of  the  owners, 
his  position  was  that  of  a  part  owner,  and  he 
was  entitled  to  compensation. 

Guildford  v.   AiKjlo- French  Steamnhip  Co., 

2R.  &,(i.,  54; 
1  C.  L.  T.,  554. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Hdd,  1st,  that  even  if  the  dismissal  had  been 
wrongful,  the  damages  were  excessive,  and  the 
case  should  go  back  for  a  new  trial  on  this 
ground.  2nd,  Per  Ritchie,  C.  J.,  and  Fournier 
and  Gwynne,  JJ.,  that  the  fact  of  the  master 
being  a  shareholder  in  the  corporation  owning 
the  vessel,  had  no  bearing  on  the  case,  and  that 
it  was  proper  to  grant  a  new  trial  to  have  the 
question,  as  to  whether  the  plaintiff  so  acted  as 
to  justify  his  dismissal  by  the  owners,  submitted 
to  a  jury,  or  a  Judge,  if  the  case  be  tried 
without  a  jury. 

Guildford  v.  Awjlo- French  S.  S.,  Co., 
9S.  C.  R.,303; 
2C.  L.  T.,260. 

5.  Mortgage  of  property  of,  by  direc- 
tors— Practice  on  making  calls — The  direc- 
tors of  a  company  incorporated  under  Acts  of 
1852,  Chapter  2  (Rev.  Stats.,  .Srd  series,  750), 
intituled  "  An  Act  for  the  incorporation  and 
winding-up  of  joint  stock  companies,"  have 
power  to  mortgage  the  property  of  the  company 
to  discharge  obligations  for  which  the  sharehold- 
ers are  liable,  and  would  continue  liable  in  their 
own  persons,  if  there  were  no  mortgage.  The 
power  to  borrow  money  impUes  the  power  to 


mortgage.  In  making  calls  upon  contributoriva, 
summonses  will  be  granted  by  a  Judge  to  the 
several  parties  recjuiring  the  amounts  for  wliich 
they  are  liable  to  be  paid  within  a  specified  time 
without  costs  unless  resisted. 
In  re  Xaith  Brick  A  Pottery  Manufacturimj  Co., 

3N.  S.  l).,2o4. 


6.  Sale  by  corporation— Neceuity  of  seal- 
See  CORPORATION,  17. 


7.   Serrlce  on  company  out  ofProTlnce- 

Necessity  of  seal — Plaintiff  entered  on  the 
record  a  suggestion  that  the  Canada  Imj)rove- 
ment  Company,  one  of  the  defendants,  was 
absent  out  of  the  Province  when  the  writ  of 
summons  was  issued,  and  on  that  account  could 
not  be  served  with  process.  The  suggestion  was 
not  traversed  and  it  was  contended  by  defcn- 
dants  that  it  had  not  been  proved  at  the  trial, 
and  therefore,  that  plaintiff  should  have  become 
non-suit  under  4th  R.  S.,  c.  94  s.  347  and  ;{')0, 
and,  further  tliat  tlie  defendant  could  have  l)een 
served  under  section  41  of  the  Canada  Joiut 
Stock  Companies  Clauses  Act  of  1869  (Acts  1869 
c.  12,  Dom.)  made  applicable  to  this  company  by 
Acts  of  1872  c.  119  s.  9. 

Held,  that  the  suggestion,  if  the  trutii  of  it 
was  denied,  should  have  been  traversed  by  defen- 
dants, and  that  the  section  of  the  Canada  Joint 
Stock  Companies  Clauses  Act,  referred  to,  did 
not  enable  service  to  be  made  by  any  other  than 
the  accustomed  officer,  nor  beyond  the  jurisdic- 
tion of  the  Court. 

Defendants  pleaded  to  certain  agreements  al- 
leged to  have  been  made  by  them  imder  seal, 
that  the  alleged  deeds  were  not  their  deeds,  and 
that  they  did  not  undertake  and  proiiiise,  as 
alleged. 

Held,  that  under  4th  R.  S.,  c.  94,  s.  152,  an  ob- 
jection could  not,  under  these  pleas,  be  takci  to 
the  authenticity  of  the  seals  affixed  to  the  agree- 
ment as  the  seals  of  the  defendant  companies. 

Semhle,  that  under  the  Joint  Stock  Companies 
Clauses  Act,  sec.  31,  made  applicable,  as  afore- 
said, to  the  Canada  Improvement  Company,  and 
4th  R.  S.,  c.  53,  8.  15,  which  was  applicable  to 
the  Halifax  and  Cape  Breton  Railway  and  Coal 
Company,  another  defendant,  the  contract  sued 
on  would  be  valid  and  enforceable  without  seals. 
Oreij&ry  v.  The  Halifax  and  Cape  Breton 
Railway  and  Coal  Co.  et(d.,  4  R.  &  G.,  4.?6. 

A£Bnned  on  appeal  to  the  Supreme  Court  of 
Canada,  16th  February,  1885,  Cas.  Digest,  434. 

Leave  to  appeal  to  the  Judicial  Committee  of 
the  Privy  Council  refused  April  3rd,  1886. 


761 


JUDGE. 


762 


8.   SDltsagalnRt-and  B.  8.,  c.  184,  Part 

II.,  H.  1— The  proviBioiis  of  the  Practice  Ac,t 
y/h'wU  enable  proooetlingH  to  be  taken  in  the 
Supruine  Court  against  a  defendant  abroad  after 
aervicu,  do  not  extend  to  suits  against  corpora- 
tions. 
Ihlloni  V.  Sydney  and  Louinhunj  Railway  Co., 

'2  N.  S.  D.,  73. 

0.    Salts  against  —  Serrlce  on  agent  — 

Attachment  against  companies  —  Levy  and 
appraisement— Construction  of  4th  R.  S.,  c. 
97,  8.  26 -Cf.  5th  R.  S.,  c  104,  O.  47,  R.  1~ 
When  the  appraisement  shows  that  the  apprais- 
ers were  sworn,  and  the  Sheriff's  return  refers 
to  tlie  appraisers'  warrant,  the  swearing  of  the 
appraisers  sufficiently  appears. 

"Service  on  the  agent  of  process  to  appear," 
in  sec.  '26,  cap.  97,  R.  S.  (4tii  series),  means 
service  on  the  company's  agent  of  process  re- 
quiring the  company  to  appear.  Levy  under 
the  (ittachment  under  that  chapter  may  Ije  made 
before  service  on  tlie  agent.  The  levy  is  eflfec- 
tuiil  from  the  time  of  seizure  of  the  property, 
and  not  merely  after  appraisement  and  selection 
of  the  property  to  be  held  to  respond  the 
judgment. 

The  Merchantx'  Bank  v.  The  Steel  Company 
of  Canada  (Limited),  5  R.  &  G.,  '258. 

10.  WIndlng-up  Act— Winding-up  order- 
Jurisdiction  over  foreign  companies — 45  Vic, 
c.  "2,3,  D. — Requisites  of  order — Held  by  Smitli, 
Wetttherbe.  Rigby,  and  Thompson,  JJ.,  that  a 
company,  though  incorporateil  in  Great  Britain, 
can  be  made  the  subject  of  a  winding-up  order 
in  the  Supreme  Court  of  Nova  Scotia,  under  the 
Winilingup  Act  of  1882  (Canada),  when  the 
company  is  carrying  on  business  in  Nova  Scotia, 
Anil  has  its  management  here  altogether  or  in 
part. 

Per  McDonald,  J. — The  Court  has  jurisdic- 
tion to  make  such  an  order  when  an  Act  of  the 
Provincial  Legislature  has  conferred  on  the  com- 
pany tlie  right  to  hold  lands  in  Nova  Scotia. 

McDonald,  C.  J.,  dissentiny,  on  the  ground 
that  the  Winding-up  Act  does  not  and  could 
not  confer  jurisdiction  over  foreign  companies. 

ffeld,  by  McDonald,  C.  J.,  and  McDonald, 
Smith,  and  Weatherbe,  JJ.,  that  a  winding-up 
order  must  name  the  permanent  liquidator,  and 
could  therefore  only  be  made  after  notice  to 
creditors,  contributories,  &c. 

Rigby  and  Thompson,  JJ.,  dissenting. 

In  re  Steel  Company  of  Canada  (Limited), 

5R.  &G.,  17&49. 

On  appeal  to  the  Supreme  Court  of  Canada, 

ffeld,  reversing  the  judgment  of  the  Supreme 


Court  of  Nova  Scotia,  Foumier,  J.,  diHMenting, 
that  45  Vic,  c.  2.^,  D.  was  not  applicable  to  such 
company. 

The  Merchants'  Bank  of  Halifax  v.  Oillespie  et  al. , 

10  S.  C.  R.,312; 
BC.  LT.,276. 

11.   Wlndlng>ap  order  set  aside  on  technN 

cal  grounds— N«w  order  granted  upon  same 
petition  held  good — An  order  was  made  for  the 
winding-up  of  the  company,  and,  under  that 
order,  a  provisional  liquidator  was  appointed. 
The  order  was  set  aside,  as  notice  had  not  been 
given  as  required  by  statute.  Notice  was  there- 
upon given,  and  a  new  order  taken,  without 
any  further  petition. 

Held,  that  no  new  petition  was  necessary. 
In  re  Steel  ComfHtny  of  Canada  (Limited), 

5R.  &G.,  141. 

12.    WIndlng.np  local  company  under 

Dominion  Act — The  Eldorado  Union  Store 
Company,  incorporated  by  Act  of  the  Legisla- 
ture of  Nova  Scotia,  cap.  31  of  1880,  is  a  trading 
company  and  as  such  n.  vy  be  wound  up  under 
the  provisions  of  the  Dominion  Act,  cap.  23,  of 
45  Vic,  if  insolvent. 

In  applying  for  a  winding-up  order  it  should 
be  shown  in  the  petition  that  the  company  is 
insolvent,  the  general  statement  "  that  the  com- 
pany is  insolvent  within  the  Act "  not  being 
sufficient. 

In  re  The  Eldorado  Union  Store  Co. , 

6R.  &G.,  514;  6  C.  L.  T.,  542. 


JVD6E. 


1.   Charge  of  Judge  to  Jury  in  action  for 

malicious  arrest— What  sufficient— On  the 
trial  of  an  action  for  malicious  arrest  the  Judge 
is  not  required,  when  the  evidence  touching  the 
facts  upon  which  the  question  of  reasonable 
cause  depends  is  contradictory  to  tell  the  jury 
whether  or  not  there  was  reasonable  or  probable 
cause  for  the  arrest,  but  directs  them  properly 
in  telling  them  that,  if  they  find  one  way  on  the 
evidence,  there  is  reasonable  cause,  if  they  find 
otherwise  there  is  not. 

Cox  V.  Gunn,  2  R.  &  C,  528. 
See  ABBB8T,  HI,  L 

a.    Disquallfleatlon    of  Bqnity    Judge 

through  retainer  when  at  the  bar — Ritchve  E. 
J.,  when  at  the  bar,  had  been  professixnally 
consulted  in  reference  to  the  suit  which  was 
afterwards  instituted  by  bill  in  equity,  and  on 


763 


JUDGMENT. 


76* 


that  account  had  at  tircit  declined  to  act  in  the 
matter,  but  had  afterwards,  to  facilitate 
mattem,  undertaken  to  sign  any  merely  jnro 
forma  orders  in  the  cause,  and  had,  with  this 
imdcrstunding,  signed  an  order  to  appoint  an 
examiner  to  ttike  evidence.  On  appeikl  from  this 
order, 

Held,  that  under  4th  R.  S.,  o.  05.  ■.  6,  which 

went  farther  than  the  English  rule,  tiie  Judge 

was  diB<iualitied  and  the  order  must  be  set  aside. 

Harris  v.  Wallaee,  3  R.  &  C,  326. 

8.  DUqaallflcatlon  of  Judge  tbronxh  re- 
lationship— The  fact  that  the  insolvent  was 
second  cousin  of  the  Judge's  wife,  held  not  to 
dis(iua\ify  the  Judge  from  dealing  with  the 
matter  of  an  application  by  the  insolvent  for 

discharge. 

In  re  Creujhton,  1  R.  &  G.,  211. 

4.  Daty  or,  to  report  charge— New  trial 

granted  where  the  Judge  made  no  formal  charge 
to  the  jury,  and  no  charge  was  reported  on  his 
minutes. 

Beales  v.  Canada  and  Fire  Marine  Ins.  Co., 

1  R.  &  G.,  401. 

5.  Explanation  of  minutes  by  Judge  given 

to  Court  on  argument — 

Held,  that  the  Court  in  banco  could  receive 
the  explanation  of  the  Judge  as  to  the  nature  of 
the  question  to  which  a  statement  of  defendant 
on  the  minutes  of  evidence  was  an  answer. 

Royal  Canadian  Ins.  Co.  v.  Smith, 
5  R.  &  G.,  322. 
See  INSURANCE,  MARINE,  6. 

6.  Judge  of  Probate— limit  of  power  as 

to  costs— Testator's  will  was  attacked  by  the 
trustees  of  the  Methotlist  Church,  Guysboro'  (to 
whom  the  testator  had  left  the  bulk  of  his  estate 
by  a  previous  will),  on  the  ground  that  undue 
and  improper  influences  had  been  used.  The 
Judge  of  Probate  decided  that  such  influences 
had  not  been  made  out  with  sufficient  clearness 
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 
Court  held  that  the  Judge  of  Probate  had  no 
power  to  decree  the  payment  of  costs  out  of  the 
estate,  and  could  only  award  them  to  be  paid 
by  the  party  against  whom  his  decision  was 
made,  but  that  this  Court,  on  review,  could 
direct  what  costs  should  be  allowed,  and  from 
what  fund.  The  parties  were  accordingly  direc- 
ted to  pay  their  own  costs  up  to  the  time  of  the 
decree,  and  the  appeal  was  sustained,  with  costs 
to  be  paid  by  the  trustees. 

In  re  Hefffman  Estate,  3  R.  &  C,  486  ; 

In  re  Estate  of  Simpson,  3  R.  8c,  C,  357. 


7t    Judge  of  Probate  — Power  to  order 

exeontor  to  Include  certain  property  in  in- 
ventory, but  cannot  require  executor  to  attest 
to  inventory  so  amended  —  The  Judge  of  Pro- 
bate has  the  power  after  hearing  evidence  on  the 
facts,  to  order  an  executor  or  administrator  to 
include  in  the  inventory,  as  property  of  the  do- 
ceased,  articles  claimed  by  other  parties,  but  lie 
cannot  re(juire  the  executor  or  administrator  to 
swear  to  an  inventory  thus  amended  by  order 
of  the  Court. 

In  re  Estate  of  Ralston,  2  Thom.,  195. 

8.  Power  of  Judge  at  Chambers  to  tram- 

mit  cause  to  Judge  in  Equity  of  his  own 
motion — In  an  action  by  plaintiff  against  defen- 
dants on  a  policy  of  insurance,  a  third  party 
claimed  to  be  interested  in  the  insurance,  and  for- 
bade payment  to  plaintiff.  Defendants  obtained 
a  rule  nisi  for  an  interpleader,  upon  argument  of 
which  before  a  Judge  at  Chambers,  the  Judge, 
of  his  own  motion,  transmitted  the  cause  to  the 
jurisdiction  of  the  Judge  in  Equity,  under  4th 
R.  S.,  0.  89,  s.  6. 

Held,  that  the  Judge  had  power  so  to  trans- 
mit the  cause,  although  he  was  not  moved  to  do 
so  by  the  counsel  on  either  side,  and  there  was 
no  plea  on  equitable  grounds. 

McKemie  v.  jEtiia  Ins.  Co.,  2  R.  &  G.,  326. 

2  C.  L.  T.,  94. 

9.  Power  of,  to  order  extra  panel— 

10.  Rule  as  to  one  Judge  rescinding  order 

made  by  another  —  To  what  cases  not  applic- 
able— The  rule  against  one  Judge  rescinding  an 
order  made  by  another  Judge  does  not  apply  to 
orders  which  are  made  absolute  in  the  first 
instance. 

Chambers  v.  Hunter,  2  N.  S.  D.,  144, 


JUDGMENT. 

1.    Action  tor  penalty — Proof  of  oflTence 

necessary  even  where  defendant  makes  de- 
fault— Plaintiff,  an  inspector  of  River  Fisheries,, 
brought  an  action  for  a  penalty  against  defend- 
ant, and  the  latter  not  appearing,  entered  up 
judgment  against  him  for  $40,  the  full  amount 
of  the  penalty  prescribed  for  the  offence. 

Held,  that  before  doing  so,  the  plaintiff  should 
have  given  some  proof  before  a  Judge  of  the 
Court,  who  would  then  decide,  and  direct  what 
penalty  should  be  imposed. 

Jdason  V.  Mahar,  1  N.  S.  D.,  314. 


765 


JUDGMENT. 


766 


i.  Action  to  reflTO  Jadgnent— Matter  of 

defence  anterior  to  the  judgment  cannot  be 
pleaded— "Special  tiea"  does  not  include  "judg- 
ment" in  3rd  R.  S.,  c.  190,  ■■  16— Matter  of  de- 
fence cannot  be  pleaded  to  an  action  to  revive  a 
judgment  which  existed  anterior  to  the  recovery 
of  the  judgment.  If  a  judgment  be  orroneous, 
that  circumntance  will  afford  no  answer  to  an 
action  of  debt  upon  it.  The  only  course  for  the 
defendant  is  to  reverse  it  by  writ  of  error. 

The  word  "specialties"  in  .3rd  R.  S.  c.  190. 
8.  16,  does  not  include  "  judgment." 

Lawrence  v.  McDonald,  1  N.  S.  D.,  413. 

3.  Action   on   Jodgment— Hnaband   of 

wife  against  whom  judgment  before  her  mar- 
riage—Like other  defendants  cannot  plead 
matter  of  defence  to  original  action  —  To  an 
nctiun  on  a  judgment  the  defendant  cannot  plead 
any  fact  which  might  have  been  pleaded  as  an  an- 
swer to  the  original  action.  Where  a  party  has 
obtained  a  judgment  against  another,  he  may 
proceed  upon  it  at  common  law,  and  is  not  com- 
pelled to  proceed  by  writ  of  revivor.  The 
husband  of  one  of  several  parties  against  whom 
a  judgment  has  been  formally  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. 
Benjamin  v.  Campbell  et  al.,  2  N.  S.  D.,  320. 

4.  Award— Amount  below  $20— No  Juris* 

diction  in  Supreme  Court  to  order  judgment 
entered— Submission  "that  judgment  should  be 
entered  thereon  with  cost  for  the  party  in  whose 
favor  the  award  should  be  made."  Award 
(made  a  rule  of  Court  under  4th  R.  S.,  c.  109), 
contained  the  following  findings  : — 

"  1.  That  it  was  not  justifiable  for  Watson 
Eaton  to  advertise  doing  business  in  the  Colonial 
Market. 

"2.  That  Stewart's  rent  should  be  increased 
one  hundred  dollars  per  annum. 

"  3.  That  Stewart  should  deliver  up  to  Eaton 
any  of  Eaton's  guarantees  then  held  by  Stewart. 

"4.  That  the  debts  due  and  owing  the  late 
firm  of  Stewart  &  Eaton,  amounting  to  189.94, 
be  collected  by  Eaton  and  retained  by  him  for 
his  own  use. 

"5.  That  the  balance  due  and  owing  by 
Stewart  to  Eaton  amounts  to  $16.76,  which 
Stewart  is  to  pay  to  Eaton  at  once. 

"6.  That  the  expenses  in  connection  with 
the  arbitration  and  law  expenses  should  be  borne 
equally  by  Stewart  and  Eaton." 

Held,  that  the  Court  could  not  enter  judgment, 
as  the  only  amount  directly  awarded  in  money 
to  be  recovered  by  Eaton  from  Stewart  was 


116.76,  whi?h  being  under  920,  was  below  the 
jurisdiction  of  the  Court. 

In  re  H^erence  Itehceen  Eaton  and  Slewarly 

2R.  &C.,.392. 

5.  Certlflcate  of— Recording- The  record* 

ing  of  a  certificate  of  judgment  gives  the  judg- 
ment creditor  such  a  lien  upon  the  land  of  the 
debtor  as  to  enable  him  without  having  issued 
an  execution  to  proceed  in  chancery  to  set  aside 
a  prior  fraudulent  conveyance  of  the  land. 
Caldwell  et  al.  v.  Kinnman  et  al. , 

James,  ,398. 

6.  Default- Affldarlt  to  set  aside  —  By 

whom  to  be  made  and  what  to  contain— An 
affidavit  to  set  aside  a  regular  judgment  by  de- 
fault must,  in  general,  be  made  by  the  defend- 
ant himself,  and  not  by  his  attorney.  The  de- 
fendant in  such  a  case  must  swear  to  a  personal 
knowledge  of  the  facts,  and  not  merely  to  hia 
belief. 

Malone  v.  Dwj<jan,  1  Old.,  697. 

7.  Deflinlt  —  Amending  rule  to  set  aside 

on  appeal — Terms  —  On  appeal  from  the  judg- 
ment of  the  County  Court,  refusing  to  set  asidt 
a  default  where  the  writ  had  not  been  personally 
served,  the  Court,  under  Rule  14,  Order  28, 
amended  the  rule  nisi  in  the  court  below,  by 
adding  a  ground  setting  out  that  the  defendant 
had  a  defence  on  the  merits,  and  had  satisfac- 
torily accounted  for  his  non-appearance,  and 
made  absolute  the  rule  on  terms  of  a  bond  being 
given  to  the  County  Court  Judge  to  respond 
final  judgment,  defendant  to  pay  costs  of  argu- 
ment and  appeal,  otherwise  appeal  to  be  dis- 
missed. 

Hayden  v.  McNiUt,  5  R.  &  G.,  541. 

8.  Definlt— Judgment  by,  opened  up  and 

defendant  allowed  to  come  in  and  defend  — 
Amendment — After  the  issue  of  the  writ  in  the 
cause  defendant's  solicitor  demanded  a  state- 
ment of  claim,  and  agreed  that  plaintiff's 
solicitor  should  have  time  beyond  that  allowed 
by  law  to  put  it  in,  on  condition  that  the  defen> 
dant  should  have  further  time  to  plead.  The 
statement  of  claim  was  filed  on  the  14th  October, 
1887,  and  defendant's  solicitor  was  requested  to 
deliver  his  defence  not  later  than  the  29th 
October.  In  consequence  of  illness  he  was 
prevented  from  doing  so  until  November  3rd. 
A  judgment  by  default  having  been  entered  the 
previous  day,  application  was  made  to  the  Judge 
of  the  County  Court,  for  the  district  in  which 
the  writ  was  issued,  to  set  the  judgment  aside 
for  irregularity. 
Held,  that  the  application  was  wrongly  made, 


767 


JUDGMENT. 


768 


there  being  no  irregularity  apparent  on  the 
record.  That  the  proper  course  under  the  cir- 
cumstances would  have  been  to  apply  to  the 
Judge,  on  aiiidavit,  to  open  up  the  judgment, 
and  to  allow  the  defendant  to  come  in  and 
defend  under  Order  27,  Rule  14.  That  the 
Judge  would  have  been  justified  in  allowing  an 
amendment  for  that  purpose  if  moved  so  to  do. 
That  under  Order  28,  Rule  12,  the  defendant 
might  now  be  allowed  to  amend  if  he  saw  fit  and 
that,  after  such  amendment,  the  judgment  should 
be  opened  up,  and  the  defendant  allowed  to  come 
in  and  defend. 

Devine  v.  McKenzie,  20  N.  8.  R., 

(8R.  &G.),  417; 
9C.  L.  T.,  119. 

9.  Defbult— Judgment  by  — Opened  up 

where  failure  to  appear  accounted  for  —  A 
judgment  by  default  was  entered  against  defen- 
dants in  an  action  to  set  aside  as  fraudulent  a 
deed  made  by  McD.,  one  of  the  defendants,  to 
his  co-defendant,  O'B.  The  latter  obtained  an 
order  allowing  him  to  come  in  and  defend  after 
judgment,  on  an  affidavit  accounting  for  his 
failure  to  appear  previously,  and  alleging  that 
the  purchase  was  made  bona  fide,  and  without 
fraudulent  intent.  Plaintiff  having  appealed 
from  the  order  so  granted. 

Held,  that  the  appeal  must  be  dismissed. 

McDonald  v.  McDonald  et  al.,  7  R.  &  G.,  22 ; 

7  C.  L.  T.,  51. 

10.  Defiiult  —  Judgment  by,  set  aside  — 

Plaintiff,  on  the  25th  of  August,  1885,  obtained 
judgment  by  default  against  the  defendant  com- 
pany, a  company  incorporated  in  the  State  of 
Massachusetts,  owning  a  gold  mining  property 
at  Isaac's  Harbor,  in  the  I'rovince  of  Nova 
Scotia,  the  writ  of  summons  having  been  served 
upon  S.  as  agent  of  the  company.  On  the  same 
day  an  execution  was  issued,  a  writ  of  attach- 
ment and  summons  to  agent  having  been  issued 
on  the  7th  August  preceding.  The  defendant 
company  applied  on  affidavit  to  set  aside  the 
judgment  and  execution,  and  for  leave  to  appear 
and  plead,  on  the  ground  that  S.  had  acted  in 
collusion  with  the  plaintiff  for  the  purpose  of 
obtaining  the  judgment ;  that  the  amount  for 
which  judgment  was  entered  was  not  due ;  that 
S.  never  instructed  or  informed  the  executive 
or  managing  officers  of  the  company  that  the 
writ  of  summons  had  been  issued,  or  that  he 
had  been  served  with  any  process  in  the  suit, 
and  the  company  had  been  kept  in  ignorance  of 
the  proceedings  taken  against  it.  The  defend- 
ant further  denied  the  right  of  S.  to  sign  certain 
promissory    notes,  which  formed  part  of  the 


alleged  cause  of  action.  An  order  having  been 
made  by  the  learned  Chief  Justice  at  Chambers 
setting  aside  the  default  and  allowing  the  de- 
fendant to  appear  and  plead, 

Held,  the  affidavits  being  lengthy  and  contra- 
dictory, and  the  Court  being  of  opinion  that 
justice  could  be  more  effectually  done  between 
the  parties  after  a  trial,  that  the  order  must  be 
affirmed  and  the  appeal  therefrom  dismissed. 
Reynolds  v.  Gallihar  Gold  Mining  Oo., 

7R.  &G.,466; 
8  C.  L.  T.,  17. 

11.  DefiAult  marked  too  soon— Not  a  nullity 

— Judgment  entered  on  fourteenth  day  prem. 
ature — Where  the  plaintiff  marked  a  default  on 
the  twelfth  day  after  the  service  of  a  writ,  with 
the  particulars  indorsed  thereon,  and  entered  up 
judgment  on  the  fourteenth  day  thereafter. 

Held,  that  the  default  was  not  a  nullity,  and 
even  if  it  were,  the  plaintiff  was  not  entitled  to 
sign  judgment  on  the  fourteenth  day. 

Masters  v.  Phinney,  2  Thom.,  429. 

Vi.   Default  of  pleading— A  pleading  must 

be  served  as  well  as  filed  before  the  Prothono- 

tarj'  is  instructed  to  mark  a  default  for  want  of 

service. 

Johnston  V.  Matheson,  James,  92. 

13.  Defiiult,  removal  of— Discretion-Blglit 

to  reply  to  affidavit  to  set  aside — Defendant, 
against  whom  judgment  by  default  had  been 
regularly  entered  up,  applied  within  a  year  to 
have  the  judgment  set  aside,  and  to  be  allowed 
to  come  in  and  defend,  disclosing  a  defence  on 
the  merits.  Plaintiff  was  allowed  to  controvert 
the  meritoriousness  of  this  application,  but  tlie 
Judge  decided  to  grant  it  on  terms. 

Held,  that  having  so  exercised  his  discretion, 
the  Judge's  decision  would  not  be  interfered 
with. 

Semble,  it  is  not  a  matter  of  right  for  plaintiff 
to  reply  by  affidavit  in  applications  of  this  kind, 
and  where  he  is  permitted  to  do  so,  he  should 
confine  himself  to  the  establishing  of  such  other 
facts,  exclusive  of  merits,  as  might  he  consid- 
ered sufficient  to  defeat  the  application, 

Woodworth  v.  Cutten,  3  N.  S.  D.,  394. 

14.  Default  set  aside— Mistake— Jndg' 

ment  by  default  was  set  aside  in  an  ejectment  suit 
where  the  affidavits  disclosed  a  defence  on  the 
merits  without  alleging  in  terms  that  the  defen- 
dant had  a  defence  on  the  merits,  and  the  want  of 
a  plea  was  accounted  for  by  defendant's  attor- 
ney swearing  th^t  in  consequence  of  an  appeal 
from  an  order  for  security  for  costs  in  the  cause 


7G9 


JUDGMENT. 


770 


and  of  several  [lapers  in  tlie  cause  being  served 
on  his  counsel  in  Halifax,  he  was  misled  as  to 
the  position  in  which  the  cause  stood,  and  was 
not  aware  that  the  suit  was  in  a  position  in 
wliich  judgment  could  be  marked,  until  a  levy 
was  made  on  defendant's  property.  PlaintifT's 
attorney,  in  reply,  swore  that  tlie  rule  absolute 
setting  aside  the  order  for  security  had  been  for- 
warded for  service  on  defendant's  attorney  and 
tluU  for  this  and  other  reasons,  which  he 
detailed,  the  statement  of  the  attorney  as  to  his 
liaviiig  been  misled  could  not  be  true. 

Hfid,  Weatherbe,  J.,  doubtiiuj,  that  the 
a])peal  from  the  judgment  setting  aside  the 
default  must  be  dismissed. 

De  Wolfe  v.  Holme»,  .3  R.  &  G.,  4 ; 
2C.  L.  T.,600. 

15.  Default  set  aside— Where  marked  In 

consequence  of  misapprehension  of  defendant's 
attorney— Laches — A  judgment  by  default  will 
be  set  aside  as  a  matter  of  course  and  the  defen- 
dant lulniitted  to  plead  where  tlie  default  has 
licen  marked  in  consecjuence  of  a  misapprehension 
on  tlie  part  of  the  defendant's  attorney  unless 
tliere  has  been  unreasonable  delay  in  making  the 
ajiplieation. 

Cook  V.  Sumner  ct  al.,  .3  N.  S.  D.,  536. 

16.  Default— Setting  aside -In  an  action 

on  i\rfrtiofari  boiul,  under  chap.  7r),4tliRevised 
Statutes,  "Of  Licenses,"  Schedule  K,  the  defen- 
dant olilaiiied  an  order  nisi  for  the  indorsation 
on  the  writ  of  the  name  of  a  person  to  be  liable  for 
costs,  under  the  practice  established  by  Queen  v. 
McKarrher,  3  R.  &  C,  337.  Before  the  rule 
was  made  absolute,  the  plaintiff  indorsed  the 
name  of  the  Clerk  of  License,  and  gave  the  de- 
fendant notice.  A  rule  was  afterwards  obtained 
making  the  rule  ?((.■••{  absolute  and  giving  defen- 
dant ten  days  to  plead.  Plaintiff,  after  the  rule 
was  made  absolute,  indorsed  the  name  of  the 
Cleik  of  License  a  second  time,  but  did  not  give 
the  defendant  notice  of  the  second  uidorsation, 
and,  after  the  expiration  of  ten  days,  marked  a 
tlefault  foi-  want  of  a  plea. 

Iltld,   that   the  default   had   been  regularly 
marked. 

',"""•',  as  10  tiic  j>ractice  establislied  by  the 
Qu'iii  V.  McKardier. 

Queen  v.  Carter,  1  R.  Si  (i.,  307, 

U.  Estoppel  by  —  identity  of  issues  — 

I'laintitr  lirought  acM'on  for  the  non-delivery  of 
certain  goods.  Def^^ndant  pleaded  among  other 
pleas  that  plaiutill  was  estopped  by  a  judgment 
HI  a  former  suit  brought  by  the  present  defen- 
dant against  the  now  plaintiff  for  the  price  of 
tlie  goods,  to  vhich  action  it  was  pleaded  that 

25 


the  goods  had  not  been  delivered,  which  issue 
was  found  against  the  present  plaintiff.  Repli- 
cation, among  others,  on  equitable  grounds,  in 
effect  that  the  judgment  pleaded  had  been 
recovered  without  plaintiff  having  had  an  oppor- 
tunity, owing  to  unforseen  circumstances,  of 
substantiating  his  plea  by  testimony.  The 
identity  of  the  issues  raised  in  the  two  suits  was 
clearly  established,  and  a  verdict  having  been 
found  for  plaintiff". 

Held,  that  the  doctrine  of  estoppel  applied, 
that  the  equitable  replication,  not  setting  out 
the  circumstances  referred  to,  was  insuthcient 
and  that  tlie  verdict  must  be  set  aside. 

Marmnud  v.  McC ready,  3  R.  &  C.,  66. 

18.  Execution— Application  to  set  aside, 

on  ground  that  judgment  entered  in  breach  of 
settlement — Judgment  was  taken  for  plaintiff 
in  .lanuarj",  1874,  on  a  promissory  note  of  de- 
fendants to  one  Steadman,  indorsed  to  plaintiff, 
who  issued  an  execution,  and  afterwards  iissigned 
the  judgment  to  Steadman,  by  whom  a  second 
execution  was  Lssued.  Defendants  sought  to 
have  this  execution  set  aside,  on  the  ground 
that  the  judgment  had  been  taken  in  violation 
of  a  settlement  with  Steadman,  who  liad  agreed 
to  accept,  and  had  received  a  mortgage  in  full 
payment.  The  evidence  was  conflicting,  and  the 
Court,  holding  that  there  was  no  foundation  for 
the  doctrine  of  Merger,  whicli  had  been  sug- 
gested, discharged  the  rule  nisi  with  costs. 

Mf Donald  v.  Mitchell  cl  al.,  3  R.  &  C,  274. 

19.  Foreignjudgment— Action  on  -Change 

in  currency — Departure — When  an  action   is 


I  lirought  on  a  foreign  judgment,  and  the  dcclara- 
!  tion  claims  the  eijuivalent  in  Nova  Scotia  cur- 
rency of  the  amount   of   the  judgment,    it  is  a 
I  departure  to  claim  in  an  equitable  replication  an 
I  increased  amount,  on  account  of  the  depreciation 
of  the  currency  of  the  foreign  country,  ecjuiv- 
alent  to  the  change  in  the  value  of  the  currency 
since  the  cause  of  action  arose, 

J}on<l  it  al.  V.  Ires,  Admr.,  2  Old.,  1 07. 

I    20.    Injunction  to  stay  sale  until  validity 

of  judgment   settled— Judgment  for  specified 
sum,  when  sum  paid,  cannot  be  made  availa- 
I  ble  for  subsequent  liabilities— Advertisement 
I  of  sale  under  several  judgments— Sanderson, 
I  one  of  tlie  defendants,  had  lieen  obtaining  dis- 
counts from  the  Hank  of  Nova  Scotia  on  paper 
indorsed  by  one  or  more  persons,  and  the  agent 
of  the  Hank  lieconiing  dissatistied  on  account  of 
I  the  numerous  renewals,  and  referring  to  the  pos- 
I  sibility  of   the  indorsers  being  called   upon  to 
!  take  up  the  notes,   Sanderson,  in  iJuly,    1S.">!), 


771 


JUDGMENT. 


772 


gave  the  Bank  a  judgment  for  the  exact  amount 
then  due  on  the  notes.  In  September,  1860,  the 
plaintiffs  recovered  judgments  against  Sander- 
son, and  a  number  of  otlier  judgments  were  en- 
tered up  against  him  by  parties  who  were  made 
defendants  in  the  present  suit.  Sanderson 
continued  to  get  notes  discounted  until  1874 
when  his  affairs  became  embarrassed,  and  the 
Bank  ceased  to  discount  his  paper.  The  notes 
then  at  the  Bank  were  taken  up  by  the  indors- 
ers,  and  Sanderson  ceased  to  be  indebted  to 
the  Btmk.  In  1874,  the  parties  who  were  in- 
dorsers  on  Sanderson's  paper  discounted  at  the 
Bank,  took  proceedings  to  revive  the  judgment, 
and  issued  and  delivered  to  the  Sheriff  an 
execution,  with  instructions  to  levy  on  Sander- 
son's real  estate. 

Hdd,  that  the  judgment  having  been  taken 
for  a  speciied  sum  ascertained  at  the  timj  to  be 
due  the  Bank  and  which  had  bf  en  long  since 
paid,  neither  the  Bank  nor  the  indorsers  of 
Sanderson's  paper  could  make  it  available  for 
any  subse(iuent  liabilities.  Siniultaneously  with 
the  issuing  of  the  execution  at  the  suit  of  the 
Bank,  the  other  defendants,  whose  judgments 
were  subsequent  to  those  of  the  plaintiffs,  had 
executions  placed  in  the  Sheriff's  hands  by  Mr. 
Grantham,  who  was  the  attorney  by  whom  all 
the  executions  were  issued,  with  instructions  to 
levy  for  the  amount  of  them  on  Sanderson's  real 
estate,  and  the  land  was  advertised  by  the  Sheriff 
as  one  sale,  the  advertisement  being  headed  In 
all  the  causes  of  the  several  defendants,  including 
the  Bank. 

Held,  that  under  the  circumstances,  the  sale 
being  under  the  direction  of  Grantham,  the  attor- 
ney in  all  the  causes,  the  plaintiffs  were  justified 
in  making  the  incumbrancers,  subsequent  to  the 
Bank,  defendants  in  this  suit ;  otherwise,  possi- 
bly, if  these  subsequent  incumbrancers  had  not 
connected  themselves  witli  the  Bank,  but  had 
advertised  sales  under  their  respective  judg- 
ments, subject  to  prior  incumbrances. 

Injunction  to  stay  the  sale  until  the  validity, 
or  otherwise,  of  the  judgment  at  the  suit  of  the 
Bank  was  settled,  continued,  but  only  on  the 
condition  that  the  plaintiffs  should  give  an 
undertaking  to  bring  on  the  case  for  trial  at  the 
next  term  of  the  Supreme  Court  in  the  county, 
or  that  their  bill  be  dismissed. 

Costs  decreed  against  the  Bank,  but  not  as 
against  the  other  defendants. 

Moody  t(  al.  v.  Bank  of  Xova  Scodn  et  al., 

R.  E.  D.,  129. 

21.    Interest  on  Judgment— When  claim 

for  ariseB — No  claim  for  interest  arises  upon  a 
recorded  judgment  until  lands  are  actually  sold 


under  execution,  and  there  is  a  surplus  after 
paying  the  debt  and  costs. 

In  instructing  a  sheriff  to  !evy  an  executiuu, 
it  is  irregular  to  direct  him  to  levy  for  interest 
on  the  amount  of  judgment. 

Fkiyer  v.  Taylor,  James,  137. 

22.  Issning  eiecation  on  Judgment  more 

than  twenty  years  old — Old  rule  —  To  issue 
an  execution  on  a  judgment  more  than  twenty 
years  old,  there  must  have  been  an  execution 
regularly  issued  and  returned  within  a  year. 

White  v.  Dimock,  2  Thoni.,  •2.S4. 

23.  Judgment,  application  to  set  aside 

refused — Contradictory  evidence —  Defendant 
gave  plaintiff  a  warrant  of  attorney  to  secure 
the  price  of  a  lot  of  land.  Plaintiff  entered  up 
judgment  and  issued  execution,  which  defendant 
sought  to  have  set  aside  on  the  ground  that 
there  was  an  indorsation  on  the  warrant  giving 
him  ten  years'  time,  which  had  not  expired. 
Plaintiff  admitted  the  indorsation,  but  claimed 
that  it  had  at  the  time  of  its  execution  been, 
erased  with  the  consent  of  the  defendant.  De- 
fendant alleged  that  the  erasure  was  accidental, 
and  had  occurred  subsequently.  The  evidence 
corroborated  plaintiff's  position. 

Held,  that  the  judgment  should  remain  and 
execution  issue. 

Morie  v.  Ripley,  3  N.  S.  1).,  461. 

24.  Judgment  binding  on  property  ac> 

quired  subsequently  to  recording  —  Pluintiff 
recorded  a  judgment  against  defendant  and  ij^sucd 
execution  which  was  returned  unsatisfied.  Subse- 
quently certain  real  estate  came  into  defendant's 
possession  by  devise  from  his  father.  After  the 
expiration  of  a  year  plaintiff  ha'i  this  real  estate 
levied  upon  and  sold  by  the  Sheriff,  purchased 
it  himself  and  brought  ejectn;<!nt  against  a 
grantee  of  defendant's,  who  had  the  possession. 
He  was  non-suited  on  the  ground  that  the  sale 
had  not  been  duly  advertised.  He  then  applied 
for  leave  to  set  aside  the  levy  and  sale  and  to 
proceed  anew.  Defendant  resisted  the  applica- 
tion on  two  grounds  :  Ist,  that  the  judgment 
did  not  bind  the  property  because  it  had  been 
acquired  subsecjuently  to  the  recording  ;  and 
2nd,  that  the  full  amount  of  the  judgment  debt 
was  not  due.  This  latter  ground  was  supported 
by  affidavit  and  uncontradicted. 

//tld,  that  plaintiff's  application  should  be 
granted,  but  the  matter  was  referred  to  a  Master 
to  ascertain  the  actual  amount  due,  plaintiff  to 
have  liberty  to  issue  new  execution  for  the 
amount  if  not  paid. 

Bent  v.  Banks,  2  N.  S.  D.,  504. 


773 


JUDGMENT. 


774 


25.  Judgment  by  confession  attacked  as 

made  in  contemplation  of  insolvency — Ap- 
pointment of  assignee  —  Invalidity  of,  how 
attacked  —  PlaintiflF,  as  creditor's  assignee, 
siiught  to  set  aside  a  judgment  given  hy  con- 
fession by  two  alleged  co-partners,  as  made  in 
contemplation  of  insolvency.  Defendant  denied 
that  plaintiff  was  assignee,  and  it  appeared  tliat 
at  the  meeting  of  creditors  there  was  only  one 
])ers(in  who  had  tiled  a  claim,  and  his  claim  was 
without  a  voucher,  yet,  instead  of  abandoning 
the  meeting  as  a  failure  and  calling  another, 
giving  due  notice,  the  meeting  adjourned  to 
anotlier  day,  on  wliich  the  plaintiff  was  appointed 
assignee. 

Held,  that  the  appointment  was  invalid,  that 
the  proceedings  could  be  impugned  without 
going  into  the  Insolvency  Court,  and  that  tlie 
defendant's  denial  that  plaintiff  was  assignee  as 
alleged  obliged  him  to  prove  it. 

Bfuhir  V.  Gilliatt,  .3  N.  S.  D.,  5'25,  and  referred 
to  in  1  R  (&  C,  264,  questioned. 

Brown  v.  Peannan,  R.  E.  D.,  491. 

26.  Judgment  by  confession  to  indemnify 

against  future  indorsements,  which  were  after- 
wards given — Not  void  as  made  in  contem- 
plation of  insolvency  —  Plaintiff  sought  to  set 
aside  a  judgment  entered  on  a  confession  as 
made  in  contemplation  of  insolvency ;  but  the 
judgment  creditor  alleged  and  it  appeared  in 
evidence  that  the  confession  was  taken  only  to 
indenniify  the  judgment  creditor  against  loss  on 
accommodation  indorsements  to  be  thereafter 
given,  which  were  given. 

Held,  that  although  the  judgment  debtor  was 
in  insolvent  circumstances  at  the  time  of  giving 
the  confession,  the  judgment  could  not  be  im- 
peached, section  89  of  the  Insolvent  Act  of  1875 
referring  only  to  securities  given  for  pre-existing 
debts  or  liabilities. 

Kinney  v.  Rytr-son  it  al.,  R.  E.  D.,  488. 

27.  Judgment  creditor  entitled  to  notice 

on  foreclosure  of  prior  mortgage— Priority  of 
judgment  over  subsequent  trust  deed— Benja- 
min, Freeman  &  Calder  purchased  certain  lands, 
subject  to  a  subsisting  mortgage,  each  of  tliem 
receiving  a  deed  of  one  undivided  third  part. 
They  had  formed  a  partnership  for  milling  and 
lumbering,  and  Calder  borrowed  $2,000  for  the 
purpose  of  erecting  a  mill,  for  which  he  gave  a 
confession  of  judgment  to  the  plaintiff,  which 
was  duly  recorded.  The  partnership  becoming 
embarrassed,  assigned  all  their  property  to  Tay- 
lor and  others,  as  trustees,  and  afterwards  ae- 
Bigned,  under  the  Insolvent  Act  of  1869,  to 
Taylor,  who  procured  the  mortgage  to  be  fore- 
closed and  bought  in  the  property,  which  he 


;  afterwards  sold  to  Benjamin.     The  plaintiif  was 

.  not  made  defendant  in  the  foreclosure  suit,  aud 

I  received  no  notice  of  the  sale,  although  Taylor 

was  aware  of  the  fact  that  the  plaintiff  held  a 

judgment,  and  that  it  was  recorded  in  the  county 

where  the  land  lay,  and  Benjamin,  when  he  took 

,  the  deed,  was  aware  of  the  facts. 

Htld,  that  plaintiff  was  entitled  to  a  resale, 

with  notice,  and  that  the  plaintiff's  lieu  under 

his  judgment  must  have  priority  over  the  deed 

;  in  trust. 

j  KanlbacJ:  v.  Taylor  tt  al.,  R.  E.  D.,  400. 

28.   Judgment  for  defendant  for  want  of 

prosecution  where  both  parties  refuse  to  be- 
gin, reversed  on  appeal— In  an  action  hy  phiin- 
tiffs  against  defendant,  as  surviving  covenantor, 
for  rent  due  on  a  lease,  defendant  pleaded  a  plea 
i  which  was  a  substantial  admission  of  plaintiffs' 
I  case.  At  the  trial,  plaintiffs'  counsel  took  the 
ground  that  on  the  pleadings  defendant  should 
liegin,  and  rested.  Defendant's  counsel  r';fused 
to  go  on,  and  moved  for  a  non-suit.  Plaintiffs' 
counsel  having  refused  to  become  non-suit,  the 
learned  Judge  reserved  judgment,  and  subse- 
quently gave  judgment  in  favor  of  defendant, 
for  want  of  prosecution. 

//eld,   that  the  judgment  could  not  be  sus- 
tained. 

Vickery  et  al.  v.  Price,  7  R.  &  (i.,  513; 
8  0.  L.  T.,  61. 

'29.    Judgment  for  plaintlflr,  wbere  plea 

of  discharge  in  insolvency,  sustained,  because 
claim  had  not  been  properly  scheduled — Judg- 
ment for  plaintiff  sustained  where  defendant 
pleaded  a  disciiarge  in  insolvency,  and  it  ap- 
peared that  tlie  note  sued  on,  of  which  the  present 
plaintiff  was  indorsee,  had  been  included  in  the 
amount  sclieduled  as  the  claim  of  the  original 
payee,  but  no  particulars  of  it  were  given  as 
provided  by  section  61  of  the  Insolvent  Act  of 
1875.  The  plaintiff's  name  appeared  in  the 
schedule  but  no  amount  was  set  opjwsite. 

Be  Wolf  V.  Ntilly,  1  R.  &  «.,  243. 

30.    Judgment  founded  on  inference  of 

fraud — The  Court  will  review  a  judgment  foun- 
ded on  an  inference  of  fraud  more  freely  than 
where  it  is  based  on  a  conflict  of  testimony. 

Brady  v.  Bell,  7  R.  &  G.,  356 ; 
7  C.  L.  T.,  408. 

St.   Judgment  on  appeai  fk'om  Magistrates 

— Evidence  of— No  record  being  filed  in  the  Su- 
preme Court,  of  judgments  in  causes  appealed 
from  Magistrates'  Courts,  the  termination  of  the 
proceedings  under  which  the  arrest  was  made  is 
sufficiently  proved,  in  support  of  an  action  for 


776 


JUDGMENT. 


776 


malicioua  arrest,  by  the  testimony  of  a  compe- 
tent witness  wlio   heard   the  jiulgment  on  tlie 
appeal  prononneed  in  open  Court  hy  the  Judge. 
Cox  V.  Gxinn,  2  R.  &  C,  .728. 

On  a)i/tial  to  the  Supreme  Court  oj  Canada, 
Held,  reversing   the  judgment   of  tlie  Court 
beh>w,  tiiat  suuh  evidence  was  iuaihnissilde,  and 
was  not  proper  evidence  of  a  final  judgment  of 
the  Supreme  Court  of  Nova  Scotia. 

Gunn  V.  Cox,  3  S.  C.  R.,  296. 

32.  Judgment  on  warrant  of  attorney 

made  by  husband  and  wife — Judgment  valid 
till  aet  aside  in  court  where  given — When  a 
woman  entitled  to  real  estate  joins  with  her 
husband  in  executing  a  warrant  of  attorney  on 
which  a  judgment  i.s  entered  and  recorded,  in 
order  to  bind  such  real  estate,  the  Court  of 
Probate  is  not  justified  in  treating  the  judgment 
as  a  nullity. 

I\r  Dodd,  J. — The  general  principle  is,  that 
judgments  are  valid  until  set  aside  in  tlie  Court 
in  wliicii  they  are  given. 

In  re  Estate,  of  Mary  Kelson,  2  Tiiom.,  1. 

33.  Judgment  recorded  binds  lands  sub- 
sequently acquired — In  180"  the  Crown  granted 
to  one  Scott  a  lot  of  land,  of  which  defendant 
had  been  in  adver-se  posses.sion  for  ten  years, 
and  in  1870  Scott  convoyed  .said  land  to  defend- 
ant by  deed,  which  was  duly  recorded.  In 
May,  1857,  plaintiff  recovered  judgment,  which 
was  duly  recorded,  against  Scott,  under  which 
the  land  in  dispute  was  sold  and  purchased  by 
plaintiH's  at  the  Sheriff's  sale. 

Held,  that  the  adver.se  possession  of  defendant 
did  not  prevent  the  Crown  from  granting  the 
land  to  Scott,  as  sucli  possession,  in  order  to 
have  such  effect,  must  be  dedned,  actual  and 
continuous  for  twenty  years  ;  and  that  although 
Scott's  deed  to  the  defendant  was  duly  recorded, 
the  land,  although  acquired  after  the  judgment 
recorded  in  18,57,  was  bound  by  the  judgment 
the  moment  it  was  granted  to  Scott. 

Louislmrg  Land  Co.  v.  Tutty,  4  R.  &  (J.,  401. 

34.  Judgment  recorded  in  lifetime  of 

deceased — Estate  declared  insolvent  in  Pro- 
bate Court  —  Execution  may  issue  and  be 
extended  on  land  bound  by  it— Balance  due 
may  be  claimed  out  of  personal  assets  —3rd 
R.  S.,  c.  127,  s.  70— Cf.  5th  R.  S.,  c.  100,  s.  72— 
Where  a  judgment  has  been  duly  recorded  in 
the  life  time  of  a  deceased  party,  and  his  estate 
has  been  declared  insolvent  by  the  Probate 
Court,  an  execution  may,  nevertheless,  he  issued 
on  such  judgment,  on  a  proper  suggestion  of 


I  facts  on  the  record,  against  his  executor  or 
administrator,  but  can  be  extended  only  on  the 
land  bound  by  such  judgment. 

If  any  balance  remain  due  to  such  judgment 
creditor,  after  a  sale  of  the  land  under  such 
execution,  he  is  entitled  to  claim  therefor  out 
of  the  personal  assets  of  the  deceased,  under  the 
provisions  of  section  70  of  the  Probate  Act, 
(;frd  Rev.  Stats.,  c.  127). 

(.Srd  R.  S.,  c.  127,  s.  70,  same  as  5th  R.  S., 
c.  100,  s.  72.) 

Jiurroires  v.  Isnor,  I  Old.,  68t). 

j    35.   Judgment  restored  when  discharged 

I  without  consideration  on  false  pretences— The 

I  Court  will  restore  a  judgment  discharged  with- 

I  out   consideration  upon  false  pretences  of  the 

defendant,  upon  an  affidavit,   a  balance  Ijeing 

[  due. 

Poncia  V.  McDonnell,  James,  5"). 

'    36.  Judgment— Right  of  plaintiflTto,  where 

:  action  settled  before  delivery  of  decision  in 

his  favor — Plaintiff  recovered  a  verdict  on  a 

'  l)(jlicy   of  insurance  for  S2(KK),   subject  to  the 

I  opinion  of  the  Court.     After  the  argument  of  a 

rule  nisi  and  before  judgment  pronounced  on  the 

rule  the  parties  entered  into  negotiations  for  a 

.settlement,  the  result  of  which  was  tiiat  plaintiff 

about  a  fortniglit  l)efore  tiie  delivery  of  judg- 

'  ment  accepted  §1000  in  full  of  his  claim  and 

I  delivered  up  his  policy  to  the  company.     Judg- 

I  ment  was  afterwards  given  in  his  favor  for  tlie 

j  full  amount  of  the  claim,  and  a  rule  nisi  was 

taken  by  defendants  to  compel  the  plaintiff  to 

file  a  discontinuance,   .r  in  the  alternative  that 

all  proceedings  under  the  judgment  should  be 

stayed.     The   C'ourt   refused   to  interfere  with 

I  tlie  plaintiff's  common  law  right  to  enter  judg- 

I  ment,  but  stayed  execution  for  thirty  ilays,  that 

I  defendants  might  take  such  steps  as  they  might 

be  ailvised. 

Peppit  v.  North  British  Ins.  Co.,  1  R.  &  (;.,48U. 

37.   Judgment  cdt  aside  for  irreguiarlties 

— In  an  action  on  a  bond  for  §400,  at  tlie  suit  of 
the  Crown  against  the  principal  and  one  of  the 
sureties,  the  defendants  pleaded  more  than  one 
plea  without  leave,  and  the  plaintiff's  attorney 
treated  the  plea  as  a  nullity,  on  the  ground  that 
the  Crown  was  not  bound  by  section  178  of  the 
Practice  Act  (allowing  a  second  or  8ul)so(iuent 
plea),  marked  default,  and  without  filing  any 
record,  entere>'  judgment  without  any  assess- 
ment of  damaj^es,  upon  which  execution  was 
issued,  indorsed  to  levy  for  a  sum  less  than 
eighty  dollars. 

Held,  on  appeal  from  the  County  Court,  that 


777 


JUDGMENT. 


778 


the  judgment  was  properly  set  aside  by  the 
County  Court  Judge. 

Queen  v.  Hawea  et  al.,  3  R.  &  G.,  270. 

38.  Judgment  to  enable  plaintiff  to  tax 

costs  set  aside  —  Plaintiff  brought  action  for 
S84.33  for  work  done,  Ac,  for  defendant,  to 
which  defendant  pleaded  payment  after  action 
brougiit.  It  appeared  in  proof  that  while  plain- 
tiff was  in  prison  on  a  charge,  the  nature  of 
whicii  was  not  disclosed,  defendant  obtained 
from  him  a  written  acknowledgement,  as  follows : 
"  This  day  I  ha\e  settled  all  matters  of  account 
and  tlie  suit  brought  against  me  by  John  McCabe 
for  884.33,"  (Sgd.)  "  F.  H.  McNutt."  The 
signing  of  this  was  followed  by  the  payment  of 
fifty  cents  by  defendant  to  plaintiff,  which  the 
County  Court  Judge  held  to  be  sufficient  under 
tlie  plea.  Yet  he  gave  the  plaintiff  judgment 
for  ten  cents  to  enable  him  to  tax  summary 
costs. 

The  Court  set  the  judgment  aside  and  remitted 
the  case  to  the  County  Court. 

McXult  V.  McCnhe,  2  R.  &  (i.,  372. 

39.  Motion  in  arrest  of,  made  for  any 

substantial  defect  on  face  of  record — A  motion 
in  arrest  of  judgment  may  be  made  for  any  sub- 
stantial defect  which  appears  upon  the  face  of 
tlie  record.  If  the  objection  be  valid,  the  whole 
proceedings  will  be  set  aside,  but  the  party  may 
be  indicted  again. 

Queen  v.  BlacHe,  1  N.  S.  D.,  383. 

10.    Non-suit  —  Judgment  of,  set  aside 

for  irregularity  —  Plaintiff's  solicitor  entered 
his  cause  for  trial  in  the  County  Court,  and 
plaintiff  was  notified  of  the  fact  and  requested  to 
attend,  but  was  unable  to  do  so  or  to  notify  his 
solicitor  on  account  of  illness. 

A  judgment  of  non-suit  having  been  entered 
against  the  plaintiff  under  these  circumstances, 
with  the  consent  of  the  solicitor, 

ffelil,  that  the  judgment  was  irregular  and 
must  be  set  aside. 

Plaintiff  was  allowed  a  new  trial  on  payment 
of  the  costs  of  the  day  ;  other  costs  to  abide  the 
event. 

Walker  v.  Stewart,  7  R.  &(J.,  182; 
7C.  L.  T.,  247. 

41.  Plaintiff,  after  assignment  of  Judg- 
ment, delivers  satisfaction  piece  —  Assignee 
cannot  set  aatiafaction  piece  aside  —  Proper 
remedy  in  Equity  Court  — The  assignee  of  a 
judgment  recovered  by  the  plaintiff  against  the 
defendant  duly  recorded  the  certificate  of  judg- 
ment and  the  assignment  in  the  Registry  of 
Deeds.    The  plaintiff  afterwards  undertook  to 


deal  with  the  judgment  as  his  own,  and  signed 
a  satisfaction  piece,  which  was  also  recorded, 

A  rule  7tMt  was  taken  at  the  instance  of  tlie 

assignee  to  set  aside  the  satisfaction  piece,  but 

the  Court  declined  to  interfere,  considering  that 

the  remedy  must  be  sought  in  the  Equity  Court. 

McXah  V.  ShorKand,  2  R.  &  G.,  1. 

42.  Flea  puis  darrein  continuance— Dis* 

charge  and  composition — Judgment — Plaintiff 
recovered  judgment  against  defendant  after  plea 
pui-H  darrein  continuance  of  composition  and  dis- 
charge under  the  Insolvent  Act  of  1869,  the  suit 
having  been  commenced  before  the  assignment 
of  defendant  under  the  Act.  The  discharge  was 
confirmed  after  plea  and  before  trial,  but  does 
not  appear  to  have  been  brought  to  the  notice  of 
the  Court  in  any  way  at  the  trial.  On  motion 
to  set  aside  execution  on  the  judgment. 

Held,  that  the  defendant  must  have  the  advan- 
tage of  the  general  provisions  of  the  law  in  his 
favor,  which  cancelled  the  original  indebtedness, 
and  that  the  execution  and  proceedings  there- 
under must  be  set  aside. 

Wallace  v.  Bomom,  2  R.  &  C,  419. 

Reversed  on  appeal  to  the  Supreme  Court  of 
Canada, 

2  S.  C.  R.,  488. 

See  APPEAL,  X.  19. 

43.  Proceedings  to  revive  must  be  in  the 

name  of  original  parties  or  their  legal  repre- 
sentatives— Plaintiff,  as  assignee  of  the  original 
judgment  creditors  of  the  defendant,  issued  a 
writ  of  revivor  in  her  own  name  against  the  de- 
fendants. 

Held,  that  the  judgment  must  be  revived  in 
the  name  of  the  original  parties,  or  their  legal 
representatives  in  case  of  death. 

Both  practice  and  precedent  require  that  a 
judgment,  once  made  a  matter  of  record,  should 
not  be  afterwards  varied  in  its  essential  features. 

Construction  of  4th  R.  S. ,  c.  94,  s.  3,5.5. 
Jost  V.  McNeill  tt  al., 

20N.  S.  R.,  (8R.  &«.),  159} 
8C.  L.  T.,376. 

44.  Prothonotary  signing,  oat  of  term- 
Judge  delivering  decision  after  court  closed 
and  at  another  court — After  notice  of  7ion  proa 
a  peremptorj'  undertaking  was  given  for  the  next 
term  at  Fictou  ;  but  plaintiff  failed  to  try  his 
cause.  Defendants'  counsel  moved  for  judgment 
oi  non  prox,  and  the  Judge  took  the  papers  and 
reserved  his  decision.  After  the  Court  had 
closed  at  Pictou,  the  Judge  was  applied  to  for 
his  decision  at  another  Court,  and  initialed  the 
rule  for  judgment,    upon  which  the  judgment 


770 


JUDGMENT. 


780 


was  signed  by  the  Prothonotary  at  Pictou. 
Plaintiff,  treating  the  judgment  as  a  nullity, 
proceeded  to  the  trial  in  which  defendant  took 
no  part. 

Hfid,  that  the  plaintiff  could  not,  under  the 
circumstances,  proceed  to  trial,  and  the  judg- 
ment must  be  set  aside. 

Fraxer  v.  Fraser  e<  a/.,  3  R.  &  G.,  128. 

43.   Record  by  default,  evidence  of  Judg< 

ment — The  so  called  "  record  by  default,"  in  the 
Form  No.  11,  Schedule  A,  cap.  94,  4th  R.  S., 
signed  by  the  plaintiff's  attorney,  held  legal 
evidence  of  a  judgment. 

McDonald  v.  Fergmson,  I  R.  &  G.,  70. 

46.  Record  —  Filing  nnnc  pro  tunc  —  A 

judgment  had  been  entered  up  on  verdict,  there 
was  nothing  to  show  that  a  record  had  been  filed 
excepting  the  fact  that  an  execution  had  been 
issued.  More  than  thirty  years  afterwards  a 
rule  lii-n  was  obtained  for  leave  to  file  a  record 
therein  mine  pro  tunc,  in  order  tliat  it  might  be 
produced  as  evidence  in  a  pending  action  be- 
tween tlie  sons  of  the  original  parties,  the  title 
to  land  being  in  question — the  rule  was  dis- 
charged on  tlie  ground  of  the  application  being 
made  too  late,  and  by  a  party  in  another  suit. 
Jieid  V.  Smith,  1  N.  S.  D.,  20. 

47.  Recorded  Judgment  does  not  bind 

land  conveyed  to  defendant  merely  for  the 
purpose  of  re-conveying  to  third  party  — 
Where  a  deed  of  real  estate  was  prepared  and 
executed  to  give  title  to  R.,  but  R.  failed  to 
complete  the  purchase,  and  subsequently  H.  & 
G.  purchased  the  real  estate,  and  by  agreement 
between  the  parties,  the  deed  to  R.  was  recortled 
simultaneously  with  a  deed  from  R.  to  H.  &  G.  in 
action  of  ejectment  by  purchaser  at  Sheriff's  sale 
under  judgment  recorded  against  R.,  previously 
to  the  recording  of  the  above  conveyances, 

Held,  that  R.  was  a  mere  conduit  pipe  to 
convey  title  from  the  vendors  to  H.  &  G. ,  and 
that  tlie  judgment  against  him  did  not  attach 
to  the  real  estate  in  question. 

Owen  V.  Lynch,  2  R.  &  C,  406. 

48.  Record  roll— Evidence  of  recovery- 
Plea  nul  tiel  record— Where  in  an  action  to  re- 
vive a  judgment,  defendant  pleaded  niU  tiel 
record,  and  plaintiff  filed  a  record  only  five  days 
before  tlie  trial,  and  after  plea. 

Held,  that  the  plaintiff  could  not  recover,  as 
the  matter  alleged  in  the  plea  was  true,  and  a 
complete  answer  to  the  action. 

The  record  roll  filed  by  the  attorney  in  the 


'  cause  on  entering  judgment  is  the  only  evidence 
'  of  a  recovery. 

Where    plaintiff  has    died    after   recovering 
I  judgment  without  filing  a  record,  it  cannot  be 
filed  by  his  representative  without  leave  of  the 
Court  or  a  Judge. 

Che.4ey,  Admr.,  v.  Bonnett,  1  R.  ft  C.  112. 

I    49.   Record  roll— Omission  of  declaration 

I  —  Variance  between  date  of  judgment  as 
alleged  and  aa  it  appeared  on  record  roll  — 
Objections  not  fatal  —  The  omission  of  the 
declaration  from  a  record  roll  which  set  forth 
the  issue  of  the  writ  of  summons,  the  names  of 

!  the  parties,  the  particulars  of  claim,  the  plea  of 

j  confession,  &c., 

I  Hdd,  not  to  be  such  a  fatal  irregularity  as 
would  sustain  the  plea  of  nul  tiel  record,  or  pre- 
vent the  admission  in  evidence  of  the  roll. 

Held,  further,  that  a  variance   between  the 
date  of  the  judgment  as  alleged  and  as  it  ap- 

,  peared  on  the  record  was  not  fatal,  as  this  latter 
objection  was  not  taken  at  the  trial. 

I  McLearn  v.  Lytle,  5  R.  &  f!.,  .ST. 

50.  Record  roll— Secondary  evidence  of- 

In  an  action  to  revive  a  judgment,  secondary 
evidence  of  the  record  was  admitted  on  proof  of 
loss,  and  of  the  entries  in  tlie  hand  of  the  lute 
Prothonotary  in  the  judgment  book,  indicating 

I  that  the  roll  had  been  filed  and  execution  issued. 

'  Graham  v.  Boak;  3  R.  &  (i.,  286. 

51.  Right  of  action  taken  away  by  Statute 

after  action  brought    but    before    judgment 
delivered — Appeal    allowed  —  An  action  was 
tried  in  the  County  Court  in  February,  1878, 
before   the   passage  of  the  Act,  against  Com- 
missioners, for  discliarging  a  debtor  imprisoned 
on  process  out  of  the  County  Court,  l)ut  the 
judgment,  which  was  in  plaintift''s   favor  with 
eight  dollars  damages,  was  not  pronounced  until 
December,  1878,  the  Act  having  passed  in  April, 
i  1878,  one  clause  of  which  provided  that  no  action 
i  in  any  Court  should  be  taken  or  sustained  by 
!  reason  of  proceedings  theretofore  taken  for  the 
relief  of  such  debtors  being  illegal,  invalid  or 
1  void.     An  appeal  from  this  judgment  was  sus- 
j  tained  with  costs,  each  party  paying  his  own 
costs  in  the  Court  below. 

Johnxtoii  V.  Poyntz  et  al.,  2  R.  &  G.,  193. 
I 

I    52.    Sale  of  land  under  second  Judgment 

passes  good  title — A  sale  of  land  under  a  second 
I  or  later  judgment  is  valid  although  there  is  a 

prior  outstanding  recorded  judgment,  and  passes 

the   title  of  the  defendant  subject  to  the  prior 

registered  incumbrances. 
I  Smith  et  al.  v.  Smith  etal.,2  Old.,  303. 


781 


JUDGMENT. 


782 


53.  Satlsflictlon  piece— Setting  aside,  as 

fraud  on  plaintiff's  solicitor — Collusion  must 
be  shown —  Appeal  from  a  decision  refusing  to 
set  u.side  a  satisfaction  piece  alleged  to  have  been 
given  in  fraud  of  the  plaintiff's  solicitors  for  the 
purpose  of  depriving  them  of  their  costs. 

I'liiintiff  had  obtained  a  judgment  against 
dcfeiiilant,  from  which  defendant  appealed. 
While  the  appeal  was  pending  one  E.  T.  without 
the  knowledge  Of  plaintiff's  solicitors,  and  for 
an  ftp])iirently  inadequate  consideration,  obtained 
an  assignment  of  the  judgment  from  the  plaintiff , 
and  a  satisfaction  piece,  under  the  authority  of  , 
which  tlie  judgment  was  discharged  two  days 
later.  j 

It  dill  not  appear  that  there  was  any  collusion 
on  tilt'  part  of  the  plaintiff  and  defendant  to 
deprive  the  solicitors  of  tlie  former  of  their 
costs. 

//(/(/,  that  the  appeal  must  be  dismissed,  but 
in  view  of  the  peculiar  nature  of  the  circum- 
stances, without  costs. 

McFarlane  v.  iSmifh,  7  R.  &  G.,  541  ; 
8  C.  L.  T.,  64. 

54.  Security  for  costs  -Default  in  filing— 

Not  necessary  to  move  for  leave  to  enter 
judgment — It  is  not  necessary  to  move  the 
Court  for  leave  to  enter  judgment  under  4th  R.  S. , 
cap.  94.  .sec.  Ill,  where  plaintiff  has  failed  to 
give  security  for  costs  within  twelve  months 
after  service  of  a  rule  therefor. 

NtlsoH  V.  Fulton ;  Gray  v.  McKeen, 
2  R.  &  C,  402. 

53.   Setting  aside  Judgment  as  entered 

against  good  faith— Laches — An  application 
to  set  aside  a  judgment  on  the  ground  that  it 
was  entered  against  good  faith,  and  contrary  to 
an  undertanding  between  the  attorneys  of  the 
parties,  must  be  made  within  a  reasonable  time. 
Whei'e  such  an  application  was  made  nearly 
eight  mouths  after  the  signing  of  the  judgment, 
the  Court  refused  to  entertain  it. 

McCiirdy  V.  Murdoch,  1  N.  S.  D.,  409. 

56.  Setting  aside  Judgment  —  Costs  — 

Where  ilefendant  moved  to  set  aside  a  judgment 
obtained  in  the  Supreme  Court,  one  of  the 
groiinils  l)eing  that  it  was  entered  contrary  to 
good  faith,  and  plaintiff  resisted  the  motion 
only  to  relieve  himself  of  the  charge  of  bad 
faitli,  which  he  did  successfully,  the  defendant 
obtained  time  to  plead  paying  the  costs  of  plain- 
tiff's opposition  in  so  far  as  it  related  to  the 
ground  of  bad  faith. 

Smithers  v.  Smith,  1  R.  &  G.,  555. 

57.  Setting  aside  Judgment  —  laclies  — 

Rule  to  open  judgment  by  default  refused  where 


the  defendant  was  fully  aware  of  all  the  pro- 
ceedings, and  failed  to  account  for  his  delay  in 
moving. 

CummingH  v.  Oladwin,  4  R.  &  G.,  168. 

On  appeal  to  the  Sujtreme  Court  of  Canada, 
Held,  not  an  appealable  judgment. 

Cas.  Digest,  245. 

58.  Setting  asidejudgment— Motion  made 

a  year  after  entry — Defective  notice  of  trial — 
Appeal  from  refusal  of  Judge  of  County  Court 
to  open,  allowed  —  This  cause  being  at  issue 
and  for  trial  in  the  County  Court  at  Antigonish, 
it  was  agreed  by  the  parties  to  refer  it  to  arbitra- 
tion, but  no  steps  were  taken  to  that  end  by 
either  party,  and  on  the  cause  being  called  on 
the  docket  on  the  first  day  of  the  sittings,  defend- 
ant's counsel  not  answering,  plaintiff  obtained 
judgment  under  the  practice  in  4th  R.  S. ,  cap.  94, 
sec.  202,  which  did  not  come  to  the  knowledge 
of  the  defendant  until  more  than  a  year  after- 
wards. Defendant  then  obtained  a  rule  nini 
from  the  County  Court  Judge  to  set  the  judg- 
ment aside,  on  the  ground,  among  others,  that 
no  proper  notice  of  trial  had  been  given,  V)ut  the 
Judge  discharged  tlie  rule  nisi,  on  the  ground 
that  it  had  not  been  moved  for  within  a  year. 
An  appeal  was  allowed  on  the  grounds  appearing 
in  the  rule  nixi. 

Held,  that  an  appeal  lay  from  the  decision  of 
the  County  Court  Judge  under  the  Act  of  1878, 
cap.  9,  sec.  14  ;  that  the  Judge  of  the  County 
Court  had  an  inherent  right  to  open  up  the  judg- 
ment, even  after  the  lap.se  of  a  year,  to  let  in  a 
trial  on  the  merits  ;  that  the  notice  of  trial  was 
bad,  there  being  no  place  named  where  the  trial 
was  to  be  held,  and  therefore,  that  this  Court 
must  deal  with  the  judgment  as  if  there  had  been 
no  notice  of  trial. 

Weatherbe,  J.,  though  concurring  in  the  re- 
sult, questioned  whether  the  provisions  as  to  the 
appeal  in  the  Statute  of  1878  were  applicable  to 
the  case,  as  the  action  had  been  commenced 
previous  to  1878,  and  held  that  the  provisions 
in  the  Act  of  1877  were  not  applicable,  as  there 
had  l>een  no  trial,  but  that  there  was  an  appeal 
by  sec.  53  of  the  Act  of  1874,  cap.  18,  which  he 
held  to  be  unrepealed. 

Anderaon  v.  Taylor,  3  R.  &  C,  526. 

59.  Setting  aside  Judgment  on  ground 

of  fraud  and  breach  of  faith  —  Affidavits 
answering  new  matter— Leave  to  use  refused 
—4th  R.  S.,  c.  96,  8.  15— Cf  5th  R.  S.,  c.  104, 
O.  x-Avi.,  R  18 — The  Court  has  rarely  per- 
mitted affidavits  to  be  produced  under  sec.  15 
of  the  Evidence  Act,  4th  R.  S.,  c.  96,  and  in  the 
few  coses  in  which  they  have  done  so,  such  course 


783 


JUDGMENT. 


784 


has  been  rendered  irccessary  to  prevent  the 
grossest  injustice  or  to  vindiuute  the  standing  of 
members  of  tlie  Bar. 

On  argument  of  a  rule  to  set  aside  a  judgment 
obtained  againHt  defendant  on  the  ground,  among 
otiiers,  that  the  judgment  had  been  entered  in 
fraud  of  defendant  and  against  good  faitli,  the 
Court  refused  to  allow  defendant  to  produce 
affidavits  in  support  of  his  rule  when  the  affida- 
vits of  plaintiff  contained  no  new  matter  except 
in  reference  to  the  title  of  the  defendant  to  the 
land  on  which  the  judgment  fornied  a  lien. 
There  was  a  variance  between  plaintiffs  and 
defendant's  statements  as  to  the  consideration 
for  which  the  confession  was  given,  plaintiff 
having  deposed  that  it  was  for  the  indebtedness 
to  him  of  defendant's  brothers,  who  had  become 
insolvent,  and  that  he  had  agreed  to  credit  tliem 
with  further  supplies  of  goods  upon  being  suffi- 
ciently secured.  Defendant  deposed  that  the 
security  was  given  wholly  for  future  advances 
of  goods  and  obligations  to  be  incurred  by  plain- 
tiff on  account  of  the  insolvents,  and  that  plain- 
tiff had  wholly  refused  to  carry  out  his  part  of 
the  contract.  Plaintiff,  when  confronted  with 
the  facts  as  deposed  to  by  defendant,  admitted 
that  defendant's  statements  were  true,  but  con- 
tended that  the  judgment  was  not  sufficient  for 
the  purjwses  for  which  it  had  been  given,  and 
said  that  be  held  it  as  a  security  for  the  past  in- 
debtedness of  tlie  insolvents,  for  which  he  had 
accepted  a  i'rtnpromise.  The  judgment  was  set 
aside. 

O'MulUn  v.  McDonald,  3  R.  &  C,  201. 

60.  Setting-offjudgments-  Rigbt  to,  not  a 

legal,  but  an  equitable  right— Cases  in  which 
order  to  set-off  refused  —  Plaintiff  obtained 
judgment  in  an  action  of  trover  against  the  de- 
fendant, <lefendant  having  at  the  time,  and  in 
the  same  Court,  two  judgments  against  the 
plaintiff  outstanding  and  unsatisfied.  Defendant 
obtained  a  rule  niin,  calling  on  plaintiff  to  show 
cause  why  one  of  defendant's  judgments  should 
not  be  off  set  against  that  obtained  by  plaintiff. 
On  argument  the  rule  was  made  absolute. 

The  right  of  setting  off  one  judgment  against 
another  is  not  a  legal  right,  but  is  given  by  the 
equitable  jurisdiction  of  the  Court,  with  refer- 
ence to  the  circumstances  of  the  case.  The 
cases  where  a  rule  has  been  refused  are  cases 
where  there  has  been  an  absolute  judgment  on 
one  side  and  not  on  the  other,  but  a  judgment 
depending  upon  a  contingency. 

McDonald  \.  Lawrence,  1  N.  S.  D.,  411. 

61.  Signing  of,  by  Judge— A  Judge,  In 

signing  judgment,   does  so   without   responsi- 


bility. The  party  who  obtains  it,  takes  it  at  his 
own  risk. 

Johnstone  v.  lirenan,  James,  177. 

62.  Stranger  to  record  no  locus  standi  to 

attack  judgment— Proper  remedy— Laches— 

In  a  wise  of  replevin,  the  defendant  withdruw 

his  pleas  and   gave  a  c(mfeHaion,    upon  whiili 

plaintiff  regularly  entered  up  judgment.     Some 

i  time  subsc(j[uently  W.,  who  was  not  a  party  to 

the  suit,  but  who  claimed  tlie  goods  replevicil 

under  an  assignment  from  the  defendant,  iiml 

I  was  one  of  the  sureties  upon  the  replevin  ImhhI 

[  to  the  .Sheriff,  sougiit  to  have  the  judgment  .set 

I  aside,  on  the  ground  tliat  tiie  confession  was  n 

j  fraud  upon  him  and  the  otiier  creditors  of  ilefcii' 

I  dant,  and  also  tiiat  he  had  joined  with  defendiuit 

in  the  pleas,  whicliiiad  been  withdrawn  witlidui 

his  sanction.     The  latter  allegation  was  denicil, 

both  by  defendant  and   defendant's    attorniy, 

whom  \V.  swore  he  iiad  instructed  to  act  foe 

him. 

Hdd,  that  W.,  not  being  a  party  to  the  if- 
cord,  had  no  locwi  standi,  his  redress,  if  any, 
being  against  defendant's  attorney,  and  also  liiat 
he  had  been  guilty  of  /ach<  i. 

Hart  V.  Murphy,  .3  N.  S.  1).,  •-VJ. 

63.  Suggestion  when  Judgment  six  years 
oldanddefendant  out  of  jurisdiction — Toentiile 
plaintiff  to  enter  suggestion  on  the  record  ot  a 
judgment,  more  than  six  years  old,  wlieii  ile- 
fendant  is  out  of  the  Province,  the  rule  iiuist  lie 
published  thirty  days  in  the  "  Royal  (iazcltf." 

Ktith  V.  Cunnimjham,  2  Thorn.,  149. 

64.  Summary  writ— Not  necessary  under 

Acts  1882.  c.  2,  s.  87,  to  indorse  notice  of  trial 
— Defendant  sought  to  set  aside  a  defaidt  on  tlie 
ground  that  there  was  no  notice  of  trial  indmseil 
on  the  writ  of  summons,  although  there  was  a 
notice  to  appear. 

Held,  reversing  the  judgment  of  the  County 
Court  Judge,  that  the  default  was  regular. 

RincH  v.  Hermes,  5  R.  &  (J.,  .'i.VJ. 

65.  Supreme  Court  no  Jurisdiction  to 

order  judgment  to  be  entered  up  in  County 
Court — The  Court  dismissed  an  appeal,  for 
irregularity  in  the  form  of  the  rule,  and  granted 
a  rule  directing  the  Clerk  of  the  County  ('(Hirt 
to  enter  up  judgment  in  the  County  Court  for 
the  plaintiff.  On  appeal  from  a  decision  <lis- 
charging  a  rule  nixi  to  set  the  judgment  aside. 

Held,  that  the  order  ot  this  Court  for  enter- 
ing up  judgment  was  in  excess  of  jurisdiction, 
and  that  the  Clerk  of  the  County  Court  had  no 
authority  to  enter  up  judgment. 

HuestM  v.  Lyons,  3  R.  &  G.,  284. 


785 


JURISDICTION. 


78G 


66.  Unrecorded  deed  avoided  by  a  Judg- 
ment recovered  subaequently,  but  registered 
first  —  Possession  of  grantee  —  Notice  to 
judgment  creditors— Construction  of  Revised 
Statutes  (4th  series)  e.  79,  s.  22  -Chapter  79, 
(if  tlie  Kuvisetl  Statutes  (4th  series),  s  '22,  reads  : 
"  A  judgment  duly  recovered  and  docketed  shall 
liiiid  the  lands  of  the  party  against  whom  the 
judgment  shall  have  passed,  from  and  after  the 
registry  thereof  in  the  county,  or  district,  where 
the  lands  arc,  as  effectiuilly  as  a  mortgage, 
whether  such  lands  shall  liave  heen  acfjuired 
liefore  or  after  tlie  registering  of  such  judgment ; 
:in(l  deeds,  or  mortgages  of  such  lands  duly  exe- 
cuted, hut  not  registered,  shall  be  void  against 
the  judgment  creditor  who  shall  first  register  his 
judgment.'' 

Tiie  Bank  t)f  British  North  America  recovered 
a  judgment  against  one  Merriam  and  others, 
January  "Jlst,  1870,  and  registered  the  judgment 
nn  the  ff)llowing  day. 

On  tlie  'i.Srd  April,  1873,  Merriam  conveyed 
certain  lands  to  one  Fraser,  under  whom  defend- 
iuit  claimed,  who  went  into  possession  and 
improved  the  lands,  and  was  in  possession  at 
tlie  time  of  the  recovery  and  registry  of  the 
judgment,  but  neglected  to  rcjord  his  deed 
until  January  '28th,  187(5,  some  days  after  tiie 
registry  of  the  judgment. 

On  May  5th,  1870,  after  execution  had  been 
duly  issued,  the  property  was  sold  at  Sheriff's 
sale  to  plaintiff,  the  general  mann.ger  of  the 
Biink  of  British  North  America,  who  brought 
ejectment.  Neither  the  plaintiff  nor  the  bank 
of  which  he  was  manager  had  actual  notice  of 
the  conveyance  to  Fraser,  or  of  the  fact  of  pos- 
session, until  just  previously  to  the  sale. 

Held,  /(ir  McDonald,  J.,  McDonald,  C.  J.,  and 
Smith,  J.,  concurring,  that  the  prior  unrecorded 
deed  to  Fraser  was  avoided  by  the  registry  of 
the  judgment,  and  the  plaintiff  was  entitled  to 
recover. 

Weatherbe,  J.,  dinsenthuj. 

Orindhy  v.  Bkikk,  7  R.  &  «.,  27  ; 
7  C.  L.  T.,50. 


JURAT- 
Ste  AFFIDAVIT. 


JURISDICTION. 
1.  Absent  or  absconding  debtor  — The 

purchase  and  acquisition  of  real  estate  in  this 
Province  by  a  party  who  has  never  resided  or 


done  business  therein,  either  by  himself  or 
agents,  is  not  sufficient  to  bring  him  within  the 
jurisdiction  of  the  Court  as  an  absent  or  abscond- 
ing debtor. 

Cochran  v.  Duncan,  2  Thorn.,  80,  affirmed. 

MitU  V.  .SrmtM,  2  01d.,86. 

See  ABSENT  OR  ABSCONDING  DEBTOR. 

2.  Arbitrators,  Ming  award  beyond  their 

jurisdiction— 

Ste  ARBITRATION  AND  AWARD,  14. 

3.  Attacking  regularity  of  proceedings  In 

one  Court  in  another  Court — In  an  action  to 
!  recover  a  debt,  defendant  produced  a  certificate 
I  of  his  discharge  as  a  bankrupt. 
I  //dd,  that  it  was  not  comjietent  for  the  plaintiff 
I  in  this  action  to  show  irregularity  in  the  procccd- 
i  ings  in  the  Insolvent  Court,  or  to  attack  the  ilis- 
I  charge  on  the  ground  that  defendant  was  not  a 
j  trailer,  and  therefore  not  a  legitimate  subject  of 
I  the  jurisdiction  exercised. 

lieu/air  v.  Gillialt,  .3  N.  S.  1).,  ry2-t. 
Questioned  in  Brown  v.  Pearman,  R.K.D.  ,491. 

4.  CityofHalinix-Hayor's  Court-Claim 

reduced  by  cash  payments  —  Jurisdiction  — 
Where  the  plaintifTs  demand  has  been  reduced 
by  casii  payments  below  ten  pounds  in  the  City 
of  Halifax,  the  Mayor's  Court  has  exclusive 
jurisdiction. 

DoHOi'an  v.  Mahar  et  al.,  .James,  91. 

5.  Claim  less  than  $20,  in  County  Court  - 

Plaintiff  entitled  to  recover  in  absence  of  plea 
to  the  jurisdiction — Plaintiff  brought  an  action 
against  the  defendant  for  the  price  of  a  horse, 
and  the  declaration  contained  also  the  cominou 
counts.  It  appeared  that  the  horse  had  been 
sold,  not  to  defendant  but  to  a  third  party, 
from  whom  defendant  received  .$65,  to  be  paid 
to  tlie  plaintiff.  He  paid  only  $52,  used  the 
balance  of  $13  for  his  own  purposes,  and  told 
plaintiff  he  would  give  him  the  balance.  He 
afterwards  claimed  a  set-oflF  against  plaintiflF,  of 
which  there  was  no  plea. 

H(td,  that  in  the  absence  of  a  plea  to  the 
jurisdiction,  as  required  by  the  County  Court 
Act,  the  plaintiff  was  entitled  to  recover  the  .?13 
under  the  money  counts.    Judgment  reversed. 

McDonald,  J.,  dUienlivfj. 

Sharp  V.  Maxner,  3  R.  &  (i.,  105. 

6.  Claim  reduced  by  cash  payments- 
Plaintiff  sued  in  the  County  Court  on  an  agree- 
ment that  he  should  receive  $800  as  the  full 
amount  due  him  on  a  settlement  of  partnership 
debts  collected.  Defendant  contended  that  none 
of  the  debts  were  collected  before  November, 
1881,  so  that  nothing  was  due  until  then  ;  that 


787 


JURISDICTION. 


788 


the  payments  credited  by  plaintiff  Iwing  previous 
to  that  date,  could  not  l>e  connected  with  his 
claim,  which  was  therefore  lieyond  the  jurisdic- 
tion of  the  Court. 

Ili'ld,  that  the  payments  were  made  on 
ftCCDunl  of  the  agreement,  and  that  the  debt 
having  been  reduced  ))y  cash  payments,  the 
plaiiititT's  claim  was  within  the  jurisdiction  of 
the  ( 'ounty  Court. 

Prefdy  v.  litMwin,  5  R.  A  O.,  80. 

7.  Commissioner  of  Mines  —  Jurisdiction 

of,  to  forfeit  lease— 

Sep.  MINING  LAW. 

8.  Common  Law  Courts-Jurisdiction  to 

entertain  action  for  legacy— An  action  for  a 
certain  legacy  can  he  maintained  in  Common 
Law  Courts  against  any  person  who,  un<ler  a 
M'ill,  is  made  liable  to  pay  such  legacy,  and  re- 
ceives under  such  will,  funds  suHiciunt  to  pay  it. 
Ells  V.  KlU,  1  Thorn.,  (Und  Kd.),  17.S. 

9.  Contempt  of  Court— Wliole  Court  sus- 
pends Barrister  for,  -  Court  not  qualified  to  act 
in  or  take  cognizance  of  action  against  one  of 
the  Judges  for  such  suspension— Plaintiff,  a 
Barrister  of  the  i^upreme  Court,  having  commit- 
ted a  contempt  of  Court,  was,  by  the  act  of  the 
whole  Court,  suspended  from  practice.  I'laiii- 
tiff,  thereupon,  brought  an  action  against  the 
Chief  Justice,  alleging  in  his  declaration  that  the 
acts  therein  complained  of  were  acts  alone  of  the 
defendant,  in  which  the  rest  of  the  Court  were 
not  implicated.  Defendant  pleaded  that  plain- 
tiff's suspension  was  the  act  of  the  whole  Court, 
but  plaintiff  contended  at  the  argument  on  the 
ride  to  show  cause  why  certain  of  defendant's 
pleas  .shouhl  not  be  amended,  that  his  complaint 
was  limited  to  a  charge  against  the  defendant  for 
having  maliciously  and  without  probable  cause 
instituted  the  proceedings  which  led  to  his  sus- 
pension, defendant  having  denied  that  he  indi- 
vidually originated  the  proceedings, 

Htld,  that  as  this  denial  brought  the  rest  of 
the  Court  directly  into  the  contention,  none  of 
the  Judges  then  sitting  on  the  Bench  could 
judicially  act  in  or  take  any  cognizance  of  the 
cause  even  with  the  consent  of  the  parties 
thereto. 

Wallace  v.  Young,  1  N.  S.  D.,  173. 

10.  County  Court— Claim  cannot  be  di- 
vided in  order  to  give  Court  jurisdiction — 
Defendant«  entered  into  a  bond  to  the  plaintiff 
and  his  co-executor,  to  secure  a  debt  of  0810, 
payable  by  instalments,  the  firsc  of  which, 
amounting  to  8161.40,  was  overdue ;  but  the 
condition  of  the  bond  referred  to  a  mortgage 


'  given  contemporaneously  with  it,  which  con- 
tained a  covenant  that  on  default  made  in  |>ay- 
ment  of  any  instalment,  the  whole  sum  unpaid 
shouhl  Iwcome  due  and  payable.  Action  wag 
brought  in  the  County  Court  for  the  amount  of 
the  instalment. 

Held,  that  the  judgment  of  that  Court,  which 

was  for  plaintiff,  could  not  be  sustained  for  want 

of  jurisdiction,  the  debt   being  indivisible   for 

8810,  ond  recoverable  only  in  the  Supreme  Court. 

Bath,  I.MCiUor,  v.  DennUon  el  a/., 

3R.  &C.,30.3. 

11.  Counter-claim  for  amount  above  the 

{jurisdiction  of  the  County  Court  cannot  be 
amended  after  plea  objecting  to  it  on  that 
ground  —  Jurisdiction  of  County  Court  as  to 
I  such  counter-claim — In  an  action  brought  i)y 
I  plaintiff  in  the  County  Court,  on  an  award,  to  re- 
cover the  amount  thereof,  the  defendant  counter- 
j  claimed,   besides  other   items,  for   the   sum  of 
\  8400,  being  the  value  of  a  machine  wrongfully  con- 
;  verted  by  the  plaintiff.     Plaintiff  replied  to  the 
counter-claim,  among  other  things,  that  it  wm 
I  beyond  the  jurisdiction  of  the  Court,  which  in 
cases  of  tort  was  limited  to  8200.     The  Judge  of 
the  County  Court  iiermitted  the  defendant  to 
j  amend  the  counter-claim  for  damages,  so  as  to 
bring  it  within  the  jurisdiction  of  the  Court,  ami 
,  gave  judgment  in  his  favor  for  8200  and  the  other 
I  items,  in  all  fur  8222.23,  less  the  amount  found 
I  to  be  due  plaintiff.     Plaintiff  appealed. 

Held,  per  James  J.,  that  the  County  Court 
[  Judge  was  only  authorized  to  give  the  defendant 
i  the  l)enefit  of  his  counter-claim  to  the  extent  of 
;  the  amount  of  plaintiffs  claim,  but  that  having 
j  allowed  defendant  more  than  that  amount,  tlie 
j  appeal  must  be  allowed. 

I  Per  McDonald  and  Ritchie,  JJ.,  that,  after 
I  the  filing  of  a  plea,  objecting  to  the  counter- 
j  claim  as  beyond  the  jurisdiction  of  the  Court, 
!  the  County  Court  Judge  had  no  jurisdiction  to 
j  amend  it,  by  reducing  it  to  an  amount  within 
;  the  jurisdiction  of  the  Court,  the  County  Court 
Act,  5th  R.  S.,  c.  105,  a.  25,  only  permitting 
;  such  amendment  to  be  made  in  the  absence  of  a 
plea  to  the  jurisdiction. 

Bate>i  V.  Craythvm*,  7  R.  &  fi.,  250. 

12.  County  Court- Plea  that  claim  is  In 

excess  of  jurisdiction  of, — Where  plaintiff  was 
originally  indebted  to  defendant  in  8335.90  and 
defendant  sold  plaintiff  a  vessel  for  8600,  thus 
making  the  balance  in  plaintiff's  favor  8224.10, 
which  was  afterwards  increased  to  8290.78,  and 
then  reduced  by  set-off  of  cash  and  goods  amount- 
ing to  $179.05  to  8111-73, 

Held,  that  there  was  no  evidence  to  support 
the  plea,  the  burden  of  which  was  on  the  de- 


789 


JURISDICTION. 


790 


feniluit,  that  the  plaintiff's  uluim  was  in  excess 
of  tlie  jurisdiction  of  the  County  Court. 

i/cA'oy  V.  Allan,  6  R.  &  (1.,  476 ; 
6  C.  L,  T.,  538. 

13.  County  Court— Power  of  Local  Legis- 
lature to  define  jurisdiction  of, — Under  the 
Cuiiiity  Incorporation  Aut  of  1H81,  c.  I,  a.  18,  a 
County  Court  Judge  who  is  disiiualiiied  from 
trying  a  ]ietition-in  a  contested  niuniciiml  elec- 
tion, may  call  iu  another  County  Court  Judge 
to  (111  m>. 

Tlio  jurisdiction  of  County  Court  Juilges  does 
not  ilepund  upon  their  commissions,  which  are 
only  ik'scriptive  of  the  tribunal  over  which  such 
Judges  lire  appointed  to  preside,  but  upon  enact- 
ments of  the  Provincial  Legislature,  which  may 
dt'tint!,  enlarge  anil  extend  tlie  ilistrictH  within 
wliiih  the  Judges  sit,  as  it  sees  tit. 

Crowt  V.  McCiirdy,  tt  R.  &  G.,  301  ; 
0  C.  L.  T.,  4.J3. 

14.  County  Court  -Power  to  order  inter* 

pleader — The  County  Court  has  j)o\ver  to  grant 
reliof  under  the  sections  of  the  Practice  Act 
•"of  interpleader." 

Cooper  V.  Mylne,  2  R.  &  C,  382. 

13.   County  Court— Trover  in -Claim  for 

$200 -Value  of  goods  alleged  to  be  $600  by 
defendant's  pleas  —  Jurisdiction  of  County 
Court— An  action  of  trover  was  brought  against 
defendants  in  theCountyCourt,  at  Halifax,  N.  S., 
■'to  which  tiiey  pleaded  a  numljer  of  pleas,  includ- 
ing one  to  the  jurisdiction  of  the  Court.  This 
pleii  was  based  on  an  allegation  that  the  goods  for 
which  the  action  was  brought  were  of  the  value 
of .?()(»(),  the  jurisdiction  of  the  Court  in  actions 
of  tort  being  limited  to  §200.  The  plaintiff 
ilcmiured  to  the  plea  of  want  of  jurisdiction, and, 
after  argument,  the  demurrer  was  overruled.  No 
appeal  was  taken  from  the  judgment  overruling 
the  demurrer,  but  the  plaintiff  gave  notice  of 
trial,  and  entered  the  cause  for  trial  at  Chamljers, 
before  the  County  Court  Judge,  who  announced 
his  intention  of  trying  the  same  on  the  remain- 
ing pleas.  The  defendants  obtained  a  rule  nini 
for  a  writ  of  prohibition  to  restrain  the  Judge 
from  trying  the  cause,  on  the  ground  that  the 
judgment  on  the  demurrer  dis|)osed  of  the  whole 
case. 

Jfi-lil,  that  the  plea  was  not  a  good  plea,  as 
the  damages  claimed  were  only  18200,  and  the 
measure  of  damages  in  trover  was  not  necessa- 
rily the  value  of  the  goods,  and  that,  the  Court 
having  jurisdiction,  the  writ  of  prohibition  could 
not  lie  granted. 
CToote  et  al.  v.  IVallace  e<  o/.,  4  R.  &  G.,  357. 


On  appeal  to  the.  Supreme.  Court  of  Cana>la. 
I/eld,  Strong,  J.,  di■^'^entinl|,  that  the  effect  of 
the  judgment  on  the  demurrer  was  to  quash  the 
writ,  and  the  rule  nisi  for  a  writ  of  prohibition 
should  be  made  absolute. 

J'tr   Strong,  J.,    diluent  in;/,    that  the  judg- 

I  ment  of  the  County  Court  Judge  on  the  demur- 

I  rer  did  not  dispose  of  the  case  ;  but  he  had  a 

right  to  re-consider  the  same  on  the  trial  of  the 

issues  raised  by  the  other  pleas ;  that  the  plea 

to  the  jurisdiction,  by  attorney,  was  null  and 

void,    and   if  judgment   had    lieen   entered  of 

record  on  the  demurrer,  such  judgment  wouhl 

{  have  lieen  likewise  null  and  void,  and  that  the 

I  amount  claimed   by   the   plaintiff's   declaration 

;  being  over  (■<«■  in  Cas.  Digest,  probably  "  only  ' 

■  correct  reading)  §200,  the  Court  had  jurisdiction. 

Wallace  v.  O'Toole,  10th  February,  IStio, 
I  Cas.  Digest,  422. 

I 

16.  Courts  of  one  Province  no  power  to 

!  restrain  proceedings  in  another— 

//»-/(/,  that  the  Quebec  Court  had  no  jKiwer  to 

I  enforce  a  restraining  order  to  stay  proceedings 

in  the  (\)urt8  of  this  Province,  but  that  proceed- 

'  inga  for  that  purpose  should  have  been  taken 

here. 

i      The  Halifax  Bankiwj  Co.  v.  The  Dominion 

Salvaije  and  IVreckiw/  Co.,  G  R.  &  O.,  364  ; 

6C.  L.  T.,490. 
I     See  IXSOLVENCT,  30. 

17.  Oerendant  cannot  oust  Jurisdiction 

to  try  a  claim  involving  no  question  of  title 
by  pleading  set-off  involving  such  question — 
Appeal  to  Supreme  Court  in  such  case — Where 
i  a  Court  has  no  jurisdiction  to  try  a  question  of 
title,  defendant  cannot  oust  the  jurisdiction  to 
entertain  a  claim  involving  no  question  of  title 
by  pleading  a  set-off  that  involves  a  question  of 
,  title. 

An  action  was  brought  in  the  Magistrates' 
Court  and  judgment  given  for  plaintiff.  The 
'  County  Court  Judge,  on  appeal,  decided  that  the 
;  question  of  title  was  involved,  and  the  Court 
'■  was  therefore  "excluded  from  jurisdiction." 
i  Held,  that  an  appeal  lay  to  the  Supreme  Court 
;  from  the  decision. 

Creighton  v.  Liiidnay,  3  R.  &  G.,  243. 

18.  Equity  Court— Power  of,  over  real 

estate  of  infanta— The  power  of  the   Equity 
'  Court  over  the  real  estate  of  infants  in  this  Pro- 
vince is  more  extensive  than  any  such  power 
which  has  ever  been  exercised  in  England. 

In  re  Estate  of  Lawlor,  2  N.  S.  D.,  153. 

19.    Extradition  —  Trying  prisoner  for 

offence  other  than  that  for  which  extradited — 


7&1 


JURISDICTION. 


792 


A  i|iteHti(m  having  been  raised  at  the  trial  by 
(lenmrrer  uh  to  the  power  of  the  Court  to  try  or 
convict  the  defendant  for  another  otrcneu  than 
that  for  which  he  was  extradited,  and  having 
been  decided  )>y  tlie  presiding  Judge  against  the 
defendant. 

Held,  that  it  was  too  late  to  raise  tl'e  (luestion, 
by  ease  reserved,  for  the  full  (Jourt. 

Quetii  v.  CuiittiiKjham,  (1  R.  &  (i.,  ;)1  ; 
ttC.  L.  T.,  130. 

On  apiieal  to  the  Suprenu  Cowl  of  Canada, 
Per  .Strong,  J.— Tlie  Court  below  rightly  held, 
ontheauthorityofR,v.Fadernian,I)en.  C.C.,r)7'2, 
that  the  ((uestion  raised  by  the  demurrer  was  not 
properly  before  the  Court,  the  presiding  Judge 
having  given  judgment  on  the  demurrer,  over- 
ruling it  at  the  trial.  Moreover,  there  was 
nothing  in  the  law  un<ler  which  the  prisoner  was 
extradited  to  prevent  the  Court  from  trying 
him  for  any  offence  for  which  he  was,  according 
to  the  law  of  the  Dominion,  justiciable  before  it. 
Qmtn  V.  Cumiiiiijham,  tOth  March,  ISSS, 

Cas.  Digest,  107. 
Str  CRIMINAL  LAW,  7. 

20.  Foreigner  eommlts  oflTence  on  high 

seas  in  a  foreign  ship— British  Court  no  juris- 
diction—A British  Court  has  no  jurisdiction  to 
punish  a  foreigner  for  an  oflFence  committed  on 
the  high  seas,  in  a  foreign  ship,  against  a 
British  subject. 

Queen  V.  Kimman,  James,  62. 

21.  Inferior  Courts  -Jurisdiction  must  be 

shown — In  an  action  for  the  conversion  of  a 
quantity  of  intoxicating  liijuors  the  defendant, 
P.,  justified  as  a  constable,  acting  under  a 
warrant  purporting  to  have  been  issued  by  a 
Justice  of  the  Peace  under  the  provisions  of  tlie 
Canada  Temperance  Act,  1878,  and  the  defen- 
dant M.  as  his  assistant. 

Tlie  facts  necessary  to  give  jurisdiction  did 
not  appear  either  in  the  infornitttion  or  warrant, 
and  the  warrant  was  issued  by  one  justice,  con- 
trary to  section  108  of  the  Act. 

Held,  that  the  conviction  was  bad. 

AIko,  that  the  constable  being  a  trespasser, 
his  assistant  could  not  justify  under  him. 

Nothing  will  be  intended  in  favor  of  the  juris- 
diction of  an  inferior  court. 

Gallihew  v.  Pelerton  et  ai,  20  N.  S.  R., 

(8R.  &G.),  222; 
8C.  L.  T.,.S97. 

22.  Insolvency— Jurisdiction  of  Judge  In, 

—Where  the  Judge  of  the  County  Court  for 
District  No.  2,  Lunenburg,  &c.,  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  :k 
meeting  to  bo  held  at  Halifax,  the  Court,  luiM- 
ing  that  the  Judge  could  not  order  such  lu'.utiiig 
out  of  his  own  jurisdiction,  set  aside  both  orders, 
as  both  had  a  common  object,  and  directed  tho 
costs  of  tho  appeal  to  be  paid  out  of  the  estate. 
Ill  rt  Suthtrland,  3  R.  &  C. ,  H9, 

23.  Insolvency— Jurisdiction  of  Judge  In, 

to  net  aaide  writ  of  attachment— 

Sec  INSOLVENCY,  B3. 

24.  Insolvent  debtor  Imprisoned  under 

execution  out  of  Supreme  Court— Commis- 
sioners' decision — Appeal  from,  lies  to  session 
when  no  County  Court  Judge  in  County  — 
An  appeal  from  a  decision  of  ComniiHsioners 
refusing,  to  discharge  an  insolvent  debtor  was 
taken  to  the  Court  of  .Sessions  on  the  ground 
that  there  was  no  County  Court  Judge  in  tlic 
County  where  the  debtor  was  confined.  The 
Justices  having  refused  to  hear  the  appeal,  nn 
the  ground  that  they  had  no  jurisdiction  and  uu 
order  iiaving  been  applied  for  to  compel  them  to 
do  so. 

Held,  that  the  appeal  was  properly  tiikeii. 
The  debtor  was  held  under  an  execution  issiUMl 
out  of  the  Supreme  Court.  Construction  of 
chapter  118,  Revised  Statutes  (5th  Series  l,  sec- 
tion 27. 

Amxxiromj  v.  Tr^ney,  7  R.  &  (i.,  19. 

25.     Mortgage  —  Foreclosure  —  Action 

brought  at  Common  Law — Waiver  of  objec- 
tion to  jurisdiction — A  writ  of  sumuions  wivs 
issued  commanding  defendants  to  appear  in  the 
Supreme  Court  at  Truro  at  the  suit  of  plaintitTs 
who  alleged  thst  defendants  were  indebted  for 
principal  and  interest  on  a  mortgage,  reciting 
the  proviso  for  redemption.  The  writ  proceed- 
ed to  set  out  an  amount  due  on  a  promissory 
note  of  defendants  for  the  same  amount  as  the 
mortgage,  given  as  collateral  security,  and  prayed 
that  in  default  of  payment  the  equity  of  redemp- 
tions should  be  foreclosed  and  a  sale  of  the  premise* 
made.  Defendant  treated  the  suit  as  one  brought 
in  this  Court  under  4th  R.  S. ,  c.  103,  and  not  us  an 
equity  suit,  and  pleaded  various  gi-ounds  of  de- 
fence. The  cause  was  twice  tried  and  the  verdict 
for  defendants  was  in  each  case  set  aside  by  tlie 
Court  in  banco.  Plaintiff  then  took  a  rule  nid 
to  rescind  the  rules  setting  aside  the  verdict  on 
the  ground  that  the  Court  had  no  jurisdiction, 
the  suit  being  an  equity  case. 

Held,  that  although  the  writ  was  not  in  strict 
conformity,  with  the  procedure  pointed  out  in 
chapter  103,  yet  the  Court  had  jurisdiction  to 


793 


JURISDICTION. 


794 


(leiil  \y\tU  tliu  ciiHe,  not  iir  nne  brouglit  for  the 
fnrt'i'IiiNiiru  (if  an  oiiuity  of  I'odoinptioii,  l)ut  us 
oiif  ill  wliicli  (III  n(>ii-]myiii(ii)t  of  tlio  iimrtgugo 
iUiil  iiotu  ivii  (inlar  of  hiiIo  of  tlio  prciniMUB  wuh 
Hdii^ht,  luid  tliat  it  wua  too  lute  to  rnitio  tlt« 
iliii'Mtiiiii  of  wivnt  of  jiii'i8(liotion  grounded  on  un 
infiiriiiitlily  in  tliu  writ,  wiiiuli  liad  l)coii  waived 
liy  lU'tViiilantH  pleading  to  and  defending  the 
cuuHi'  iiH  an  action  at  ('oinnion  Law. 

A(/;)(/i  (t  a(.  V.  Honr  (I  a/.,  '2  R.  &  G.,  237  ; 

I  C.  L.  T.,  710. 

W,   Mortgage  -Power  or  Court  to  dlBpose 

of  purtions  of  mortgaged  property—  I'laintitf. 
\\\\i>  was  mortgagee  of  certain  coal  uieaa,  &c,, 
liiiviiig  t'oninienced  an  action  of  foreclosure 
iigiiiiist  the  defendants,  wlio  were  trustees  of  the 
Millie,  and  obtained  un  order  of  Hale,  H.,  one  of 
tliu  ceilitlH  que  truMent,  applied  to  tiie  Court  on 
petitiiiii  stating  out  tliat  shortly  before  tlie  date 
of  the  (iiilcr  there  was  ready  for  shipment  at  tlie 
time  a  huge  (juantity  of  coal  wliicii,  if  sold  and 
the  iiviicecils  applied  to  that  purpose,  would  be 
iiioie  than  sutlicicnt  to  pay  theuinountdueon  t'le 
mortgage,  and  claiming  that  the  sale  of  tlie  mine 
miller  tiie  circumstances,  would  be  a  great 
ilijiistiee. 

lli.lil,  tliat,  where  eijuity  to  the  cestui  que  trust 
rei|uires  it,  especially  if  tiie  mortgagee  be  not 
piejudiced  thereby,  the  Court  possesses  the 
power  and  will  exercise  it  to  dispose  of  sucli 
purtions  of  tiie  mortgaged  property  as  will  least 
iiijiiie  tlic  mortgaged  property  and  yet  cxtin- 
giii.sii  tiie  debt. 

M unlock  V.  Laicson,  3  N.  S.  ]).,  53'2. 

27.  Objection  to  want  of  Jurisdiction  in 

Justices  of  the  Peace  waived  by  certain  steps 
taken — Defendant  was  prosecuted  under  cliuptcr 
19,  Revised  JStatntes  (3rd  series),  for  a  violation 
of  the  law  relating  to  the  sale  of  intoxicating 
liciiKirs.  There  was  no  actual  service  upon  hini 
of  tlie  writ  of  summons.  Defendant  having  been 
couvieted  in  his  absence,  appealed,  and  tiled  the 
necessary  bond  under  the  Statute. 

Hdd,  that  the  defendant  having  appealc(i  and 
thus  virtually  appeared,  and  having  avoided  the 
judgment  below  by  having  taken  an  important 
step  in  the  cause,  it  was  not  competent  to  him 
to  repudiate  the  jurisdiction  of  the  Court  below 
on  the  ground  of  want  of  personal  service. 

Rand  v.  Rockwell,  2  N.  S.  D.,  199- 

2S.  OITence  committed  at  sea— Jurisdic- 
tion to  convict  for — The  prisoner  having  picked 
up  certain  goods  that  had  floated  away  from  the 
wreck  of  a  steamer  appropriated  tliem  to  his  own 
use.    He  was  indicted  for  larceny,  the  property 


in  the  goods  being  laid  in  the  captain  of  tiiu 
steamer,  and  at  tlio  trial  the  judge  instructed 

'  the  jury  that  they  ould  not  convict  him  of  lar- 
ceny.    The  prosecution  then  claimed  a  conviction 

'  for  a  misdemeanor  and  the  jury  found  according- 
ly. On  a  case  being  reserved  for  tiie  full  Court, 
Held,  Wilkins,  J.,  ilisseuliinj,  that  under  sec- 
tion 110  of  the  Tjirceny  Act,  32  and  33  Vic, 
c.  21,  s.  3,  the  conviction  must  be  sustained, 
and   that    although   tho   oHTence   was   probably 

\  committed  at  sea,  the  Court  had  full  jurisdiction 
in  tlie  premises. 

Queen  v.  Martin,  3  N.  S.  1).,  124. 

20.    Pleas  -Setting  aside  as  fblse-Jurls< 

diction  of  Court— The  word  "  false  "  in  tlie  7l8t 
sec.  of  the  Practice  Act  (Rev.  .Stats.  3rd  .Series), 

'  is  the  foundation  of  a  jurisdiction  exercised  by 
the  Court,  more  extended  than  any  authority  to 
set  aside  pleas  claimed  by  the  Superior  Courts 
ill  Kiigland.  Hut  the  Court  does  not  ii.ssert  or 
exercise  a  power  to  try  a  cause  thus  sutnmarily, 
or  decide  controverted  facts, 

Tlie  Court  has  a  right  to  recjuire  an  explicit 
explanation  of  facts  necessarily  within  the  defen- 
dant's knowledge  on  the  pain  of  treating  his  pleu 
as  fraudulently  evasive  or  false.  Facts  not  so 
within  his  knowledge  may  be  stated  less  dis- 
tinctly. In  the  latter  case  it  may  be  proper  to 
admit  statements  of  inf.>rmation  and  belief 
which  would  be  inudmissiljle  to  substantiate  a 

I  fact  before  a  jury,  the  Province  of  the  Court  or 
Judge  being  not  to  estalilish  a  fact,  but  to  ascer- 
tain whether  there  is  a  fact  to  be  tried. 

'  The  Hank  of  Nova  Scotia  v.  Chijmmn  et  al., 

j  IN.  S.  D.,  521. 

30.    Probate  Court- Claim  on  estate  of 

j  deceased  partner  arising  out  of  partnership 
dealings  —  Jurisdiction  of  Court  notwith- 
standing surviving  partner  not  made  a  party — 
Held,  that  the  Court  of  Probate  had  juris- 
diction to  decide  on  petitioner's  claim  for  a  part- 
nership debt  against  the  estate  of  a  deceased 
partner,  notwithstanding  that  the  surviving 
partner  was  not  made  a  party  to  the  proceedings. 
In  re  Estate  of  I  vex,  ex  parte  Campbell, 

7  R.  &G.,  108; 
7  C.  L.  T.,  146. 

Hi.   Probate  Court— Jurisdiction  of— Tlie 

real  estate  of  the  intestate  was  partitioned  by 
commissioners  appointed  under  the  Probate  Act, 
who,  by  their  report,  left  a  certain  portion  of 
the  land  undivided.  This  partition  was  con- 
firmed by  order  of  the  Court,  the  estate  having 
been  previously  settled  by  decree  of  the  Judge 
of  Probate,  which  was  in  evidence.   Afterwards, 


795 


JURISDICTION. 


796 


W.  Hawkius,  husband  of  one  of  the  heirs 
of  intestate,  petitioned  the  Judge  of  Probate  for 
a  partition  of  the  undivided  portion ;  and  a 
large  body  of  evidence  of  possession  was  put  in 
on  both  sides,  jthe  whole  of  which  this  Court 
held  to  be  futile  and  unnecessary,  as  there  was 
no  ground  for  sustaining  any  possession  in  either 
party,  that  could  influence  the  decision.  The 
Judge  of  Probate  dismissed  the  petition  on  the 
ground  that  he  had  no  power  to  settle  disputed 
questions  of  title.  On  appeal  to  the  Judge  in 
Equity  the  decision  was  overruled  and  the  Judge 
of  Probate  directed  to  proceed  with  the  cause, 
which  he  did,  and  dismissed  the  petition  on  the 
merits,  dividing  the  costs  between  the  litigants. 

Both  parties  having  appealed, 

Hdd,  that  the  final  decree  above  referred  to 
was  evidence,  with  the  other  evidence  before  tlie 
Court  of  the  final  settlement  of  the  estate  by  the 
Judge  of  Probate ;  that  after  such  settlement 
his  jurisdiction  over  any  unsold  or  undivided 
shares  ceased  ;  that  the  objection  for  want  of 
jurisdiction  was  rightly  taken  at  any  stage,  and 
that  the  appeal  of  the  petitioner  Hawkins  must 
be  dismissed. 

In  re  Estate  of  John  Simpson,  .3  R.  &  C,  357. 

32.  Probate  Court- Jurisdiction  in  dis- 
tribution of  personal  property  devised  to 
executors  for  a  purpose  which  fails— Personal 
property  devised  to  executors  for  a  purpose 
which  fails,  must  be  distributed  by  the  executors 
among  the  next  of  kin.  Such  distribution  is 
within  the  jurisdiction  of  the  Probate  Court. 

Estate  of  Alexander  McDonald, 

James,  123. 

33.  Probate  Court— Powers  ol— The  Court 

of  Probate  have  all  ihe  powers  of  the  Court  of 
Chancery  to  enable  them  to  settle  the  accounts 
of  an  estate. 

Estate  of  Catherine  McDonald,  James,  342. 

34.  Probate  Court— Power  to  grant  li- 
censes to  sell  on  application  of  creditors— A 
testator  by  a  clause  in  his  will  devised  and 
bequeathed,  from  and  after  the  death  of  his  wife, 
all  his  real  and  personal  estate,  to,  and  amongst 
his  sons,  of  whom  M.  was  one,  their  heirs  and 
assigns,  share  and  share  alike. 

M.  died  intestate,  his  mother  was  appointed 
administratrix  of  his  estate,  and  application  was 
made  to  the  Court  of  Probate  by  the  assignees  of 
certain  of  his  judgment  creditors,  his  personal 
estate  being  sworn  to  be  insufficient  for  the 
payment  of  his  debts,  for  license  under  sections 
13  and  17  of  the  Probate  Act  (Revised  Statutes, 
2nd  series.  Cap.  130),  to  sell  his  interest  in  the 
real  estate  of  the  testator. 


Held,  ;)€r  Young,  C.  J.,  and  Dodd,  J.,  that  the 
granting  of  a  license  for  the  sale  of  real  estate 
under  Revised  Statutes  (2nd  series),  cap.  130,, 
sections  13  and  17,  is  discretionary  with  the 
Court  of  Probate,  and  that  discretion  was  rightly 
exercised  in  the  present  instance  by  the  refusal 
of  such  license. 

Per  DeBarres  and  Wilkins,  JJ.,  that  the 
Court  of  Probate  had  no  power  whatever  to 
grant  such  license. 

In  re  Estate  Michael  O'Sulivan,  1  Old.,  549. 


35.    Supreme  Court  lias  Jurisdiction  to 

make  foreign  company  subject  of  a  winding- 
up  order  —  Requisites  of  order  —  Held  hy 
Smith,  Weatherbe,  Rigby,  and  Thompson,  JJ., 
that  a  company,  though  incorporated  in  d'reat 
Britain,  can  be  made  the  subject  of  a  winding- 
up  order  in  the  Supreme  Court  of  Nova  Scotia, 
under  the  Winding-up  Act  of  1882  (Canada), 
when  the  company  is  carrying  on  busincs-s  in 
Nova  Scotia,  and  has  its  management  here  alto, 
gether  or  in  part. 

Per  McDonald,  J.— The  Court  has  jurisdic- 
tion  to  make  such  an  order  when  an  Act  of  the 
Provincial  Legislature  has  conferred  on  the  com- 
pany the  right  to  hold  lands  in  Nova  Scotia. 

McDonald,  C.  J.,  dissenting,  on  the  gi'ouud 
that  the  Winding-up  Act  does  not  and  could 
not  confrr  jurisdiction  over  foreign  companies. 

Held,  per  McDonald  C.  J.,  ard  McDonald, 
Smith,  and  Weatherbe,  JJ.,  that  a  winding-up- 
order  must  name  the  permanent  liquidator,  and 
could  therefore  only  be  made  after  notice  to 
creditors,  contributories,  &c. 

Rigby  and  Thompson,  JJ.,  dissenting. 

In  re  Steel  Company  of  Canada  (Limitfd), 

5R.  &G.,  17&49. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  of  the  Supreme 
Court  of  Nova  Scotia,  Fournier,  J.,  dissmlinj 
that  45  Vic,  c.  23.,  was  not  applicable  to  such 
company. 

The  Merchants' Ba7ik  of  Halifax  v.  Gillespie  d  al.,. 

10  S.  C.  R.,312j. 
5C.  L.  T.,'276. 


36.    Supreme  Court  In  banco  had  Juris* 

diction  to  inquire  into  objections  taken  on 
criminal  trials — Where  in  a  case  of  felony  ob- 
jections were  taken  by  the  prisoner's  Counsel, 
in  arrest  of  judgment,  but  overruled  by  the 
Judge  trying  the  cause,  the  Court  in  banco  have 
authority  to  inquire  into  the  validity  of  those 
objections. 

Queen  v.  Kennedy,  2  Thorn.,  203- 


797 


JURISDICTION. 


798 


37.  Supreme  Court- Jurisdiction  of,  in; 

attachment  proceedings  attacked  on  ground  j 
that  property  attached  was  not  defendant's —  | 
Defendant  applied  to  set  aside  a  writ  of  attach- 
ment, levy  and  sheriff's  return  on  the  ground 
that  this  Court  had  no  jurisdiction  because  the 
property  attached  was  not  that  of  the  defend- 
ant, having  been  conveyed  to  a  trustee,  in  trust  j 
for  his  wife  some  time  previously.     Affidavits 
were  read  in  reply  to  show  that  the  trust  deed 
was  made  fraudulently  and   in   contemplation  1 
of  insolvency.     The  rule  was  discharged  with  ' 

rosts.  ; 

Thompson  v.  Ellix,  4  R.  &  G.,  307.  I 

38.  Supreme  Court  in  banco— Jurisdiction 

to  hear  appeals  in  insolvent  debtor  cases  — 
Defendant  was  imprisoned  in  the  County  Jail 
under  process  issued  out  of  the  County  Court 
and  detained  under  an  order  of  Commissioners 
for  the  relief  of  insolvent  debtors.  An  appli- 
cation was  made  to  this  Court  in  banco  for  a  I 
summons  to  have  the  prisoner  brought  up  by 
way  of  appeal.  | 

Held,  that  the  Court  had  no  jurisdiction  to  I 
hear  the  case,  not  having  met  within  ten  days 
from  the  date  of  the  order  from  which  the  appeal 
was  sought. 

Brookjiehl  v.  SymtH,  3  R.  &  G.,  17  ; 

2C,  L.  T.,601. 


39.  Supreme  Court  in  banco  no  Jurisdic- 
tion to  hear  a  ease  referred  by  consent  before 
conclusion  of  trial  at  nisi  prius — A  cr.usc  was 
tried  at  Sydney  and  not  concluded  when  the 
Court  adjourned.  A  rule  was  then  made,  consen- 
ted to  by  the  counsel  and  attorneys  of  both  sides, 
ordering  that,  in  addition  to  the  evidence  taken 
before  the  Court,  further  evidence  should  be  taken 
at  Sydney  before  a  Judge  or  person  named  in 
the  rule,  and  at  Halifax  before  a  master,  in  the 
manner  set  out  in  the  rule,  that  all  the  evidence 
should  be  tiled  with  the  Prothonotary  at  Halifax 
and  tlie  cause  should  be  heard  upon  such  evidence 
before  the  Court  sitting  in  banco  at  Halifax,  and 
that  the  Court  should  have  power  to  refer  any 
matter  of  account  in  said  cause  to  a  master  or 
referee  for  his  report,  which  report  the  Court 
might  confirm,  reject  or  utilize,  as  it  should  see 
fit,  and  enter  up  judgment  for  either  of  the  parties, 
and  it  was  further  ordered  that  the  Court  should 
have  power  to  make  all  and  any  orders,  and  do 
all  things  necessary  for  the  purpose  of  finally 
disposing  of  the  cause. 

Hdd,  that  the  Court  had  no  jurisdiction  to 
hear  the  cause  under  the  rule. 

(Jishome  V.  Cape  Breton  Co.  (Limited), 

3R.  &G.,27. 


40.  Supreme  Court  in  banco  no  Jurlsdic* 

tion  to  hear  evidence  submitted  as  special 
case — A  rule  of  Court  was  made  by  consent  of  the 
parties,  that  the  evidence  should  form  a  special 
case  to  be  submitted  to  the  Court  witii  jKJwer 
to  draw  inferences  of  fact  and  enter  judgment 
for  either  party  for  such  amount  as  the  Court 
should  determine,  the  right  of  appeal  in  either 
to  be  the  same  as  if  a  verdict  or  judgment  were 
given  by  a  single  J  udge. 

Held,  that  under  this  consent  the  Court  had 
no  power  to  entertain  the  case. 

Per  McDonald,  J. — That  the  Court  would  not 
entertain  the  case,  as  there  were  conflicting  state- 
ments on  issues  involving  the  question  of  fraud. 
Hoivard  v.  Lancanhire  Inn.  Co. , 

2R.  &G.,  ;m; 
2C.  L.  T.,  108. 

41.  Supreme  Court- Jurisdiction  by  cer. 

tiorari  not  taken  away  by  enactment  that 
proceedings  of  inferior  Court  shall  be  Anal  — 
An  enactment  that  proceedings  of  an  inferior 
Court  shall  be  final  does  not  take  away  the 
jurisdiction  of  the  Supreme  Court  to  review 
their  proceedings  under  writ  of  certiorari. 

Barnahy  etal.  v.  Gardner  el  a/.,  James,  306. 

42.  Supreme  Court— Jurisdiction  by  way 

of  certiorari — Section  53  of  Chapter  129  Domin- 
ion Acts  of  1874  does  not  takeaway  the  jurisdic- 
tion of  the  Supreme  Court  by  way  of  certiorari. 
Hawes  V.  Hart,  2  R.  &  G.,427 ;  2  C.  L.  T.,  312. 

43.  Supreme  Court— Jurisdiction  in  cases 

of  attachment — SheriflTs  return — Where  goods 
were  attached  by  Sheriff,  and  the  return  made 
was  that  he  had  attached  them  as  the  goods  of 
the  absent  debtor,  held,  not  to  be  a  return 
warranting  the  Court  in  assuming  jurisdiction. 
The  Court  requires  that  the  return  should  state 
positively,  to  cnal)le  them  to  have  jurisdiction, 
that  the  goods  attached  are  the  goods  of  the 
absent  debtor. 

Ratchford  v.  Chipman,  2  Thorn.,  235. 

44.  Supreme  Court  no  Jurisdiction  on 

appeal  from  an  order  made  by  County  Court 
Judge  in  aid  of  London  Bankruptcy  Court  — 
A  County  Court  Judge  was  applied  to,  to  act  in 
aid  of,  and  as  auxiliary  to  the  London  Bankrupt- 
cy Court,  in  relation  to  property  of  an  English 
bankrupt  situated  in  his  district,  and  made  an 
onler  accordingly. 

Held,  McDonald,  C.  J.,  dinnenting,  that  no 
appeal  would  lie  from  such  order,  to  the  Supreme 
Court,  either  under  the  Insolvent  Act  of  Canada, 


799 


JURISDICTION. 


800 


which  had  given  certain  {wwera  to  the  Judge  in  possesses  all  tlie  powers  with  reference  to  suits 
reference  to  insolvents,  or  under  the  County  in  partition  with  whicli  the  Equity  Court  in 
Courts  Acts,  inasmuch  as  his  order  was  not  made  Jingland  is  invested. 


by  reason  of  any  jurisdiction  conferred  by  tiiose 
A'as,  but  by  reason  of  the  Imperial  Bankruptcy 
Act  which  did  not  give  such  appeal. 

Re  Carvell,  ex  imrle  Oliddon,  7>  R.  &  (i.,  410. 


LeCaiu  v.  Honterman,  2  N.  S.  1).,  41S. 


50.    Supreme  Court-  Power  of,  to  amerce 

counties— Neither  the  Dominion  Acts  of  186S 

45.    Supreme  Court-Xo  Jurisdiction  to:  «•'•'«>' ""'^''f 's'-^. '-''•46,  nor 4th  r..s.,  ch. 21, 

deal  with  summary  causes  brought  up  by  empower  the  Supreme  Court  to  amerce  a  couii- 
certiorari  since  the  summary  jurisdiction  of  ^Y  ^or  fliarges  incurred  in  calling  out  the  active 
Supreme  Court  taken  away—  Militia,  under  the  Dominion  Act  of  1873,  ch.  46, 

See  CERTIORARI. '  ••"  '!»«"  "^  '•'"^• 

lure  Amercement  ■  ''CajK  Breton  Co., 

46.     Supreme  Court  no  Jurisdiction  by  -K-  &  (' .  ii<> 

appeal  in  cases  appealed  to  County  Court  from  ' 

Justices  of  the  Peace—On  appeal  to  the  County       61.     Town  Court  Of  TrurO  —  Jurisdiction 

Court  from  a  judgment  and  conviction  by  two  '  of,— Ry  an  Act  of  the  Provincial  Legislature  a 
Magistrates,  under  the  License  Laws,  the  Coun-  Town  Court  was  constituted  for  the  incorporated 
ty  Court  Judge  without  trying  the  cause  de  Town  of  Truro,  to  be  presided  over  by  the  Re- 
7ioro,  (juashed  the  conviction,  on  the  ground  that  corder  or  Stipendiary  Magistrate,  the  two  offices 
it  was  a  conviction  simply  for  violating  the  ^  being  filled  l)y  the  same  persim.  It  was  enacted 
License  Law,  without  stating  the  particular  act  that  the  Town  Court  shouhl  have  and  possess 
of  violation.  An  appeal  was  granted  to  the  all  the  powers  in  civil  matters  within  the  Muni- 
Sujireme  Court.  cipality  conferred  upon  one  or  more  Justices  of 

Jft/d,  that  the  judgnicui  lirdow  must  be  the  Peace  or  Stipendiary  or  Police  Magistrate  liy 
atbi  lued,  on  the  ground  that  the  convicticm  had  an  Act  of  the  Province.  The  prisoner  was  con 
rightly  been  quashed,  and  further  that,  the  ;  victed  of  a  violation  of  the  License  Laws  by 
summary  jurisdiction  being  abolished,  the  doci-    selling  intoxicating  li<iuors  contrary  to  law,  as 

for  a  third  otfence,  and  while  in  jail  was  again 
convicted  of  a  fourth  otfence,  the  summonses  is- 
94.    suing  out  of  the  Town  Court,  and  tlic  exccutidMs 
I  in  the  form  of  4th  R.  S.,  Chap.  7'»,  Schedule  1'. 
being  signed  by  the  Stijjendiary  Magistrate  as 
the  presiding  otHcer  in  that  Court, 
On  a  motion  for  a  habean  cm^nm, 
H(l(l,  that  the  matter  came  within  the  juris- 
diction of  the  Town  Court  as  above  defined,  ami 
that  the  imprisonment  was  lawful,  although  the 
execution  specified  no  <lefinitc  period. 

In  re  Simon  Frat(r,  1  R.  &  (i.,  ,T)4. 

S^e  HABEAS  CORPUS,  N 
52.     Verdict  against  flndings  of  Jury 


sion  of  the  County  Court  was  final. 
Weatherbe,  J.,  (li^si'M/iinj. 

Hose  V.  liurkc,  1  R.  &  (i. 


4i.    Supreme  Court,  no  power  under  old 

Act  to  reverse  decision  of  County  Court  on 
questions  of  fact — Lender  sec.  '2.>  of  the  Amend- 
ing County  Courts  Act  of  187",  cap.  (i,  the  Court 
has  no  juris<liction  to  reverse  tlie  decision  of  the 
County  Court   Judge  on  disputed  ((Uestions  of 

fact. 

irier  V.  Let  son,  3  R.  &  C,  •-'99. 

48.     Supreme  Court  no  Jurisdiction  to 

order  judgment  to  be  entered  up  in  County 

Court  —  The  Court  dismissed  an  appeal,  for  I  Jurisdiction  of  Court  in  banco  to  set  aside -In 
irregularity  in  the  form  of  the  rule,  and  grante<l  '  an  action  for  maliciously  procuring  an  execution 
a  rule  directing  the  Clerk  of  the  County  Court  to  be  i»-.;.  '  against  the  plaintiff,  the  Judge 
to  enter  up  judgment  in  the  County  Court  for  put  to  the  jury  the  (juestion  whether  the  defen- 
the  plaintiff.  On  appeal  from  a  decision  dis-  j  dant  issued  the  execution  knowing  or  believing 
charging  a  rule  niti  to  set  the  judgment  aside,      j  that  notliing  was  due  to  him  by  the  plaintill';  if 


Hilil,  that  the  onier  of  this  Court  for  enter- 
ing up  judgment  was  in  excess  of  jurisdiction, 
and  that  the  Clerk  of  the  County  Court  had  no 
authority  to  enter  up  judgment. 

Hiif'iii.-<  V.  Lyom,  3  R.  k  (J.,  284. 

49.  Supreme  Court  -Power  of,  in  partition 

suits  —  The    Supreme    Court  of    Nova    Scotia 


not  the  verdict  to  be  for  the  defendant.  The 
jury  answered  the  (juestion  in  the  negative,  but 
found  a  verdict  for  plaintiff'.  The  Judge  on 
circuit,  on  motion,  ordered  a  verdict  to  be  enter- 
ed for  defendant  with  leave  to  move.  After 
argument  of  tlie  rule  nini  to  set  aside  the  verdict 
for  defendant. 

Held,  that  there  was  no  authority,  after  the 


801 


JURISDICTION. 


802 


verdict   for   plaintiff  was   rendered,    to    enter 

verdict  for  defendant,  and  that  the  Court  in 

banco  had  jurisdiction  to  grant  a  rule  ntti  to  set 

it  aside. 

McKay  v.  Woodill,  4  R.  &  G.,  55. 

63.  Vice-AdmlraUy— Jurisdiction  In  action 

for  seaman's  wages — The  Admiralty  Court  has 
no  jurisdiction  in  •%  suit  to  recover  seaman's 
wages,  unless  the  sum  claimed  amount  to  at 
least  fifty  pounds  sterling. 

Dale  V.  The  Ship  "  Velocity,"  James,  390. 

51.    Tlce-Admlralty  Court— Jurisdiction 

in  c?.^e  of  collision  where  neither  vessels 
owned  in  British  possessions — The  question  of 
jurisdiction  was  raised  in  a  case  of  collision  on 
tiie  ground  that  neither  of  the  vessels  was  owned 
in  the  British  possessions. 
ffeld,  that  the  Court  had  jurisdiction. 

The.  Clementine,  Y.  A.  D.,  i86. 

35.  Vice-Admiralty  Court  —  Jurisdiction 

in  cases  of  collision  in  Halifax  Harbor  — 
Where  a  collision  occurred  inside  Halifax  Har- 
bor, and  therefore  within  the  body  of  the 
County  of  Halifax, 

Held,  that  under  the  Statutes,  24  Vic. ,  cap. 
10,  and  26  Vic. ,  cap.  24,  the  Court  had  full  juris- 
diction in  the  matter. 

The  Wavelet,  Y.  A.  D.,  34. 

56.  Vice*Admiralty  Court -Jurisdiction — 

The  legislation  of  the  Dominion  Parliament 
(.3I  Vic.  c.  8,8.  156),  giving  the  Vice- Admiralty 
Court  jurisdiction  in  cases  for  the  collection  of 
penalties  for  illegal  distilling,  is  ultra  inrei,  and 
tlic  Vice- Admiralty  Court,  as  an  inferior  Court, 
may  lie  restrained  by  the  Supreme  Court  by 
wit  of  prohibition. 

Atl'y-Gen'l  of  Canada  v.  Flint  et  al., 

.3R.  &0.,453. 
Reversed  on  appeal— 5ee  ADMIRALTY,  11. 

57.  Vice  -  Admiralty  Court — Jurisdiction 

of,  in  relation  to  bottomry  bonds — 

See  SHIPPING. 

58.  Vice'Admiraity— Jurisdiction  to  enter- 
tain claim  for  salvage— Where  the  vessel  saved 
was  brought  into  port  in  Newfoundland  and  then 
sold ;  hut  a  portion  of  her  materials  was  brought 
to  Ilalifax,  and  then  proceeded  against  by  two 
of  the  salvors  who  had  not  been  paid  in  New- 
foundland, 

^e/d.that  the  Court    had    full  jurisdiction, 
salvage  constituting  a  lien  upon  the  goods  saved. 
The  Flora,  Y.  A.  D.,  48. 
2fi 


59.   Vice-Admiralty  Court  — Jorisdietloii 

to  entertain  proceedings  to  recover  penalty 
for  illegal  distilling — The  defendant  and  three 
others,  being  discovered  in  the  i:iegal  distilling 
of  spirits,  the  materials  and  apparatus  used  by 
them  were  seized.  No  claim  having  heeu  put 
in  for  them,  they  were  condenmed,  and  proceed- 
ings then  taken  to  recover  the  penalties  imposed 
by  the  Act.  The  defendant  appeared  under 
protest,  denying  the  jurisdiction  of  the  Court. 
ffeld,  that  the  Court  had  full  jurisdiction  in 
the  matter. 

Qtieen  v.  Flint,  Y.  A.  D.,  280, 


60.     Vice-Admiralty  —  Jurisdiction  of— 

Special  contract  for  seaman's  wages,  what 
constitutes ;  cannot  be  enforced  in  Vice-Admi- 
ralty Court  —  Two  out  of  three  promovents 
shipped  at  Bermuda  on  board  the  ship  libelled, 
a  blockade  runner,  for  the  round  voyage  from 
Bermuda  to  Wilmington,  North  Carolina,  and 
thence  to  Halifax,  Nova  Scotia.  The  remaining 
promovent  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  each  of  the  promovents 
certain  specified  sums,  in  three  equal  instalments. 
The  contract  was  absolute  as  to  two  of  the 
instalments,  and  as  to  the  third,  there  was  a 
condition  that  it  was  to  be  paid  only  if  the 
claimants'  conduct  were  satisfactory. 

Held,  (1.)  That  this  was  not  an  ordinary  en- 
gagement for  seamen's  wages,  but  a  special  con« 
tract. 

(2.)  That  previous  to  the  Admiralty  Court 
Act  of  1861,  24  Vict.  ch.  10,  the  High  Court  of 
Admiralty  had  no  jurisdiction  over  such  con- 
tracts. 

(3. )  That  this  Act  did  not  extend  to  the  Vice- 
Admiralty  Courts,  nor  were  the  provisions  re- 
specting special  contracts,  embraced  in  its  tenth 
section,  extended  to  those  Courts  by  the  Act  of 
1863,  26  Vict.  ch.  24,  sec.  10. 

(4.)  That,  although  the  commission  formerly 
issued  to  the  Vice-Admiralty  Judge  empowered 
him  "  to  hear  and  determine  all  causes  according 
to  the  civil  and  maritime  laws  and  customs  of  our 
High  Court  of  Admiralty  of  England,"  yet  this 
power,  like  some  others  assumed  to  be  bestowed 
by  the  commission,  is  frequently  inoperative, 
and  that,  therefore,  this  Court  has  no  jurisdiction 
in  cases  like  the  present. 

Held,  also,  that,  although  the  responderts 
were  bound  to  have  objected  to  the  jurisdiction 
in  limine,  by  appearing  under  protest,  still,  that 
where  the  Court  is  of  opinion  that  it  has  no 
jurisdiction,   it   will    not    only   entertain   the 


803 


JURY. 


804 


objection  at  the  hearing,  but  is  bound  itself  to 
raise  it. 

The  City  of  Petersburg,  1  Old.,  814  ; 
Y.  A.  D.,  1. 


Pleas  of- 


JVSTIFICATION- 


See  PLEADING. 


JVBT. 


1.    Appeal  cause— Jory  ordered  where 

question  of  Araud — Jury  granted  in  an  appeal 
cause  upon  the  ground  that  the  cause  turned  on 
the  question  of  fraud. 

Skinner  v.  Latie,  James,  183. 

a.   Conduct  of— During  a  recess  vhlch 

occurred  in  the  progress  of  a  trial,  after  all  the 
evidence  had  been  put  in,  but  the  closing 
addresses  of  the  Counsel  not  yet  delivered,  one 
of  the  jurors  was  heard  to  say  aloud:  "The 
plaintiff  has  got  to  get  his  pay  and  he  will  get  it." 
The  verdict  being  in  favor  of  plaintiff  it  was 
sought  to  be  set  aside  for  misconduct  on  the  part 
of  the  juror. 

Held,  that  looking  at  the  circumstances  under 
which  the  remarks  were  made  there  was  no 
ground  for  disturbing  the  verdict. 

Thedibeau  v.  Everett,  3  N.  S.  D.,  318. 

3.  Conduct  of—Jury  lodging  with  one  of 

the  parties — Conversing  with — Where  pending 
the  trial  one  of  the  jurors  went  to  the  defendant's 
house  and  obtained  a  night's  lodging  and  break- 
fast there,  and  defendant  was  seen  with  the  juror 
on  the  following  morning  on  the  land  in  dispute, 
and  also  treated  another  juror  who  happened  to 
come  into  the  bar-room,  where  he  was  taking  a 
drink,  but  the  defendant  swore  that  he  held  no 
conversation  with  either  of  the  jurors  as  to  the 
merits  of  the  cause  and  that  he  did  not  attempt 
to  influence  them  in  any  way  in  giving  their 
verdict,  and  there  was  no  other  objection  to  the 
verdict. 

Held,  not  sufficient  tampering  to  justify  set- 
ting aside  the  verdict.  Hill,  J.,  dinsenting. 

Gould  v.  Gould,  2  Thom.,  87. 

4.  Conduct  of— Separation— Conversation 

'^Venire  de  novo — Even  in  a  criminal  case  the 
separation  of  the  jurors  and  their  conversation 
with  strangers  will  not  necessarily  destroy  the 
verdict. 


Quaere,  whether  misconduct  of  the  jurors, 
when  there  is  no  other  irregularity,  would  in 
capital  cases  be  a  sufficient  ground  for  dircniing 
a  venire  de  novo. 

Queen  v.  Kennedy,  2  Thom.,  203. 

5.  Defects  in  jury  list— The  omission  of 

the  residences  and  occupations  of  grand  jurors 

in  the  list  and  in  the    panel    held   sufficient 

grounds  for  quashing  an  indictment  for  felony. 

Queen  v.  Belyea,  James,  '2*20 ; 

Qu£en  v.  Murphy  etal.,  James,  158. 

6.  Defects  In  Jury  Ust— Omission  of  resU 

dence  and  occapation— Effect  of— It  is  a  matter 
for  the  discretion  of  the  Court  whether  a  defect 
in  the  jury  lists  or  in  the  panel,  which  has  nvo 
been  made  a  ground  of  objection  at  the  trial,  is 
a  sufficient  cause  for  setting  aside  a  verdict, 
The  omission  of  the  residences  and  occupations 
of  the  jurors  in  the  lists  returned  by  the  Justices 
held  sufficient  ground  for  quashing  indictments 
found  by  the  grand  jury  and  for  setting  aside 
special  jury  panels  in  causes  not  tried,  but  not 
sufficient  to  disturb  verdicts  in  causes  where  the 
objection  was  not  made  at  the  trial  unless  it  be 
shown  that  injustice  has  been  done. 

Lessee  of  Seaman  v.  Campbell,  James,  94. 

7.  Extra  panel— Ordered  by  less  than  a 

majority  of  the  Judges — The  prisoner  was  tried 
by  a  jury  called  from  an  extra  panel,  the  order 
for  which,  made  under  4th  R.  8.,  cap.  92,  see.  37, 
was  signed  by  only  three  Judges. 

Held,  that  the  order  was  valid  although  not 
signed  by  a  majority  of  the  Judges. 

Qtteen  v.  Quinn,  1  R.  &  G.,  139. 

8.  Juror  connected  by  marriage  with  one 

of  the  parties — The  fact  that  one  of  the  jurors 
was  nearly  connected  by  marriage  with  the  plain- 
tiff, was  held  to  be  no  ground  for  setting  aside  a 
verdict  for  plaintiff,  where  it  was  not  disclosed 
that  the  affinity  continued  at  the  time  of  trial, 
or  that  there  was  any  issue  of  the  marriage  still 
living,  or  anything  else  from  which  it  could  be 
inferred  that  the  mistake  was  productive  of  any 
injustice,  and  where  it  appeared  that  the  defen- 
dant was  aware  of  the  connection  before  the 
trial  was  over,  but  took  no  exception  till  he  found 
that  the  verdict  was  against  him. 

Hart  v.  Pryor  etal.,in.&  C,  53. 

9.  Jurors— DlsquallUcatlon  of,  In  certain 

cases  not  removed  by  5th  R.  S.,  c.  109— 

Semble,  that  ch.  109  of  the  Revised  Statutes, 
removing  certain  disqualifications  of  "Judges, 
Justices  of  the  Peace,  or  persons  empowered 


805 


JUS  TERTII, 


806 


by  law  to  exercise  judicial  functions,"  does  not 
apply  to  jurors. 

Ki7ig  V.  The  Municipality  of  Kings, 

7R.  &G.,68; 
7C.  L.  T„  119. 

10.  Jaror  related  to  party— The  foreman 

of  a  jury  which  found  a  verdict  for  defendant 
was  a  cousin  of  defendant's  wife  ;  this  fact  was 
not  known  to  the  plaintiff  till  after  the  verdict, 
though  his  attorney  stated  to  defendant's  attor- 
ney before  the  jury  announced  their  verdict* 
tliat  if  it  was  for  defendant  it  would  be  set  aside 
on  account  of  the  relationship.  The  Judge  who 
tried  the  cause  was  satisfied  with  the  verdict 
found. 
The  Court  refused  to  disturb  the  verdict. 

LeBtanc  v.  McRae,  2  R.  &  C,  240. 

11.    Juror  related  to  party— Where  a 

verdict  was  found  unanimously  in  favor  of  the 
defendant  in  an  action  brought  by  the  plaintiffs 
as  executors,  but  two  of  the  jurors  were  sworn 
to  be  related  to  the  defendant  as  second  cousins, 
a  fact  which  was,  until  several  days  after  the 
trial,  unknown  to  the  plaintiff,  at  whose  instance 
the  action  had  been  brought  and  who  applied  to 
have  it  set  aside,  the  Court  set  the  verdict  aside, 
although  the  jurors  in  question  were  shown  to 
be  equally  related  to  the  deceased  whose  execu- 
tors had  brought  the  action. 

Lynds  tt  al.  v.  Hoar,  1  R,  &  C,  327. 

la.  Jury  de  medletate  llngoe— Alien  Jurors 

—Aliens  are  not  entitled,  in  this  Province,  in 
auy  case  civil  or  criminal,  to  a  jury  de  medietate 
linyute.    An  alien  may  be  a  juror. 

Queen  v.  Burdell  and  Lane,  1  Old.,  126. 

13.  Jury  In  County  Court— General  ver- 
dict instead  of  findings  on  specific  facts  sus- 
tained—Irregularity— Acquiescence  of  parties 
—On  the  trial  of  an  action  on  the  common  counts 
before  a  Judge  of  the  County  Court  a  jury  was 
called  by  consent  for  the  purpose  of  having  cer- 
tain facts  in  controversy  submitted  to  them. 
The  learned  Judge  instructed  the  jury  that  the 
case  was  one  of  conflicting  evidence,  and  that  on 
every  material  fact  the  plaintiff  and  defendant 
differed.  After  referring  particularly  to  the 
facts  in  dispute  he  left  the  case,  without  any 
objection  made,  entirely  with  the  jury,  who  found 
a  general  verdict  in  favor  of  defendant. 

Held,  Rigby  and  McDonald,  JJ.,  dissenting, 
that  while  the  verdict  should  have  been  a  finding 
on  disputed  facts  and  not  a  general  verdict  for 
the  plaintiff  or  defendant,  such  general  verdict 
was  only  an  irregularity  and  should  not  be 


treated  as  a  proceeding  coram  non  judice.  The 
objection  might  be  fatal  in  some  cases,  but  in 
the  present  case  was  only  formal,  as  on  the  facta 
found  for  defendant  he  was  clearly  entitled  to 
judgment,  and  all  parties  acquiesced  in  the  man- 
ner in  which  the  case  was  put  to  the  jury. 

Rhoiles  et  al.  v.  Patrick,  6  R.  &  G.,  233 ; 
6  0.  L.  T.,445. 

14.  Jury  ordered  by  Court  on  circuit 

instead  of  by  a  Judge— 

Held,  that  the  objection  that  the  application 
for  a  jury  was  made  to,  and  the  order  granted 
by  the  Court  on  Circuit  instead  of  a  Judge  of  the 
Court,  was  obviated  by  section  52  of  chapter  70, 
providing  that  proceedings  should  not  be  set 
aside  upon  any  mere  technicality. 

In  re  Nictanx  and  Atlantic  Railway, 

2  R.  &  G.,  252  ; 
1  C.  L.  T.,  707. 

15.  Jury  ordered  In  summary  cause  when 

— The  Court  will  order  a  jury  in  a  summary 
cause  when  there  will  be  conflicting  evidence. 

Uniacke  v.  Gardner,  James,  59. 

16.  Not  ordered  simply  because  there 

will  be  conflicting  testimony — The  Court  will 
not  order  a  jury,  simply  because  the  affidavit) 
states  that  there  will  be  conflicting  testimony. 
Swa7i  v.  Pryor  et  ai.,2  Thom.,  13. 

17.  Setting  down  Jury  cause  for  day— A 

petit  jury  cause  on  the  docket  of  causes  for  trial 
may  be  set  down  on  a  particular  day  upon  special 
grounds,  and  where  the  circumstances  are  pecu- 
liar. 

Phailen  v.  Phailen,  James,  112. 

18.  Sheriff  party  to  suit- No  ground  of 

challenge — It  is  no  ground  for  challenging  the 
jury  that  the  Sheriff  is  one  of  the  parties  to  the 
suit. 

Harris  v.  McKenzie,  2  Thom.,  242. 

19.  Special  Jury— Setting  down  cause  for 

day — The  Court  will  grant  a  special  jury  after 
an  ineffectual  trial,  upon  cause  shown. 

The  Court  will,  under  peculiar  circumstances, 
order  a  special  jury  cause  to  be  set  down  for  a 
particular  day,  upon  special  grounds  shown. 

Stalker  tt  ai.  v.  Wier  et  al.,  James,  107. 


JUS  TEBTO. 
Deffendant  can  set  up,  whe?o  plaintiff 

out  of  poaBeision,  under  plea  denying  plain- 


807 


JUSTICES  OF  THE  PEACE. 


808 


tiflF's  property  —  In  an  action  of  trover  for 
quartz,  &c.,  defendant  plewled,  denying  plain- 
tiff's property  in  the  goods,  and  gave  evidence 
that  the  property  had  been  seized  under  execu- 
tion against  tlie  plaintiff,  and  sold  to  a  third 
party.  The  plaintiff  at  the  time  of  the  alleged 
conversion  was  out  of  possession. 

Held,  that  as  the  plaintiff  was  out  of  posses- 
sion, defendant  could  set  up  the  jw  tertii  under 
a  plea  denying  the  plaintiff's  property. 

Camphdl  v.  Yeadon,  5  R.  &  G.,  212. 


JUSTICES  OF  THE  PEACE. 

1.  AffldaTlt  for  attactament-Before  wtaom 

to  be  made — Wliere  the  affidavit  on  which  an 
attachment  was  grounded  was  made  before  a 
Justice  of  the  Peace,  and  it  appeared  that  a 
Commissioner  for  tlie  County  was,  at  the  time, 
at  his  usual  residence,  and  within  three  miles 
of  the  place  where  the  affidavit  was  made,  the 
proceedings  were  set  aside. 

Knodel  v.  lient,  2  Thorn.,  149. 

2.  Appeal— Action  against  Justice  for  re* 

fusing — Plaintiff  brought  an  action  against  a 
Magistrate  for  maliciously  refusing  an  appeal ; 
but,  on  his  direct  examination,  stated  merely  that 
he  had  demanded  an  appeal,  and  that  nothing 
further  was  said.  Defendant  swore  that  he  did 
not  hear  the  appeal  demanded.  Plaintiffs  attor- 
ney swore  that  in  the  defendant's  presence  he 
had  asked  plaintiff  if  he  had  not  offered  to  make 
the  affidavit  and  demanded  [an  appeal,  to  which 
plaintiff  replied  that  he  had  done  so.  The  jury 
in  answer  to  the  question  whether  the  Justice 
had  been  required  to  prepare  an  affidavit  said 
"  yes,"  and  in  answer  to  the  question  whether 
the  Justice  had  acted  with  malice  replied, 
"apparently:"  and  they  found  a  verdict  for 
plaintiff. 

A  rule  being  granted  the  verdict  was  set  aside. 
McKenzie  v.  McKay,  3  R.  &  G.,  122. 

3.  Appeal— Affldavit  for— Power  of  Judge 

of  County  Court  to  allow  amendment  of  affi- 
davit— The  affidavit  for  appeal  from  the  Magis- 
trates' Court  was  defective,  not  being  headed  in 
the  cause,  and  the  words  "  before  me  "  being 
omitted  from  the  jurat.  The  Judge  of  the 
County  Court  was  satisfied  that  the  defects 
occurred  through  inadvertence,  and  without  the 
fault  of  the  appellant,  and  without  any  inten- 
tion to  evade  the  requirements  of  the  Statute, 


but  dismissed  the  appeal  on  the  ground  that  he 
had  no  power  to  amend  the  affidavit. 
Held,  that  he  had  such  power. 

Woodii.'orth  v.  Iimi)!,  6  R.  &  G.,  295; 
6  C.  L.  T.,  440. 


4.   Appeal-Certiorari-Deposit  of  traTel< 

ling  fees  in  Magistrates'  Court,  where  summons 
issued  to  be  served  out  of  County  — Effect 
of  non-compliance  with  Statute — Construction 
of  5th  R.  S.,  a  102,  a.  2— R.  S.,  c.  102,  s.  2, 
enacts  that  in  all  cases  where  the  defendant  does 
not  reside  in  the  county  where  the  summons  ia 
issued,  it  shall  be  incumbent  on  the  Justice  !«• 
fore  issuing  the  writ  to  require  the  plaintiff  to 
deposit  witli  him  a  sum  equal  to  ten  cents  per 
mile  each  way  of  the  distance  l)etween  the  real- 
deuce  of  the  defendant  and  the  place  of  trial, 
and  in  case  such  deposit  shall  not  l)e  actually 
paid  in  as  aforesaid,  and  indorsed  on  Ijoth 
original  and  copy,  the  said  writ  and  service 
shall  Ik)  void. 

Plaintiff  issued  a  summons  in  the  Magistrates' 
Court  against  defendant  to  recover  an  amount 
claimed  to  Ikj  due  for  goods  sold  and  delivered, 
but  omitted  to  deposit  or  to  have  indorsed  on 
tlie  original  and  copy  of  the  writ  a  sufficient 
amount  to  cover  defendant's  travelling  expenses, 
as  required  by  the  Statute.  The  Magistrates 
admitted  that  the  amount  was  insufficient,  but 
permitted  the  plaintiff  to  cure  the  deficiency  by 
depositing  a  further  amount,  and  proceeded  witli 
the  trial.  Defendant  made  no  defence,  ami 
judgment  was  given  for  the  plaintiff. 

Defendant  appealed,  and  in  the  County  Court 
application  was  made  on  affidavit  for  judgment 
in  his  favor  on  the  ground  stated.  The  applica- 
tion having  been  refused,  the  case  was  tried  on 
its  merits,  and  judgment  given  for  plaintiff. 
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. 

Held,  per  Weatherbe,  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  been  brought  up  by 
certiorari  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  proceedings  before  the  Magistrates  were 
void  for  non-compliance  with  the  Statute,  and 
the  appeal  from  the  void  proceedings  could 
not  give  the  County  Court  Judge  jurisdiction 


809 


JUSTICES  OF  THE  PEACE. 


810 


to  adjudicate  on  the  subject  matter  of  the 
causb. 

Moffatt  V.  McRitchie,  7  R.  &  G.,  228  ; 

7  C.  L.  T.,  322. 

5.  Appeal  from  Jndgment  in  an  action 

by  a  warden  of  river  fisheries  for  recovery  of 

penalty  for  infringement  of  regulations  made 

by  Sessions  under  cap.  95  Revised  Statutes  (Ist 

scries),  must  be  to  Sessions.     (See  16  Vic. ,  cap. 

17,  under  which  the  proceedings  in  this  case 

were  taken.) 

Gowjk  V.  Morton,  2  Thorn.,  10. 

6.  Appeal  firom— Allowance  of— When 

one  of  the  Magistrates  before  whom  u  cause  was 
tried  stated  that  all  the  papers  necessary  for 
perfecting  the  appeal  had  been  filed,  accepted 
the  bond,  telling  the  party  it  was  all  right,  the 
Court  allowed  the  appeal,  though  no  affidavit 
had  been  filed. 

McKay  v.  McKay,  2  Thorn.,  75. 

7.  Appeal  from— Conviction— Amendment 

of— In  an  appeal  from  a  conviction  for  selling 
li(luor,  the  Judge  who  tried  the  cause  has  power 
to  allow  the  conviction  to  be  amended. 

Taylor  v.  Marshall,  2  Thorn.,  10. 

8.  Appeal  from  County  Court  to  Supreme 

Court  in  cause  originating  before  Justices — 
The  Court  declined  to  entertain  an  appeal  from 
the  County  Court  in  a  cause  originating  in  the 
Magistrates'  Court,  where  the  rule  for  appeal 
was  taken  upon  filing  security  and  not "  granted" 
by  the  Judge  within  the  meaning  of  sec.  8  of 
cap.  20,  1879. 

Matheson  v.  McLean,  2  R.  &  G.,  176  ; 
1  C.  L.  T.,  664. 

9.  Appeal  from  decision  of  Justices  of  tbe 

Peace— Defendant  was  prosecuted  under  chap. 
19,  Rev.  !St«ts.  (.3rd  Series),  for  a  breach  of  the 
law  relating  to  the  sale  of  intoxicating  liijuors. 
There  was  no  actual  service  upon  him  of  the 
writ  of  summons,  and  the  affidavit  of  the  con- 
stable verifying  the  return  was  informal  in  1)eing 
intituled  with  the  surnames  only  of  plaintiiT  and 
defendant.  Defendant  having  been  convicted 
in  his  absence,  appealed  and  filed  the  necessary 
bond  under  the  Statute. 

Held,  that  when  an  appeal  is  ttiken  and  per- 
fected from  a  decision  of  Justices  of  the  Peace, 
in  a  summary  cause,  the  judgment  below  is 
thereby  ipso  facto  vacated,  and  the  case  stands 
for  a  new  trial.  Also,  that  defendant  having 
appealed,  and  thus  virtually  appeared,  and 
having  avoided  the  judgment  below  by  having 


taken  an  important  step  in  the  cause,  it  was  not) 
competent  to  him  to  repudiate  the  jurisdiction 
of  the  Court  below,  on  the  ground  of  want 
of  personal  service.  Ha<l  he  wished  to  avail 
himself  of  such  an  objection,  he  should  not  have 
appealed,  but  should  have  sued  out  a  writ  of 
certiorari. 

On  a  second  trial,  no  amendment  adding  or 
substituting  a  new  cause  of  action  or  ground  of 
defence  will  be  allowed. 

Per  Wilkins,  J.,  dinsenting. — A  judgment 
given  as  the  judgment  in  this  case  was,  forms 
no  exception  to  the  privilege  of  appealing  con- 
ferred by  the  Statute,  and  to  issue  a  certiorari 
would  have  been  unnecessary.  Judgment  by 
default  having  been  given,  defendant,  not  having 
1)«en  duly  summoned  to  appear,  is  entitled  to  an 
appeal.  The  want  of  service  of  the  summons 
alone  is  ground  for  reversing  the  judgment 
below.  A  dissatisfied  party  appealing  from  a 
judgment  so  entered  cannot  be  held  to  waive 
his  right  to  contest  the  validity  of  the  judgment 
not  having  had  an  opportunity  of  opposing  the 
claim  which  the  judgment  recognizes. 

Hand  V.  Rockwell,  2  N.  S.  D.,  199. 

10.  Appeal  from  Justice  of  the  Peace- 
Affidavit — The  affidavit  for  appeal  from  a  Jus- 
tice of  the  Peace,  in  civil  cases,  must  be  made 
before  the  Justice  who  tried  the  cause. 

Curry  v.  Lecran,  4  R.  &  G.,  ,31. 

11.  Appeal  from  Magistrates'  Court— Mis* 

conduct  of  Magistrates — Affidavit  for  appeal 
— Before  whom  made — Defendant  demanded  an 
appeal  from  a  judgment  given  against  him  by 
two  Justices  of  the  Peace  and  tendered  the 
proper  fees  to  one  of  the  Justices  for  preparing 
the  statutory  affidavit  for  an  appeal.  The  af- 
fidavit was  prepared  but  was  sworn  to  without 
having  been  (signed,  and  the  Magistrate  at  once 
issued  execution  under  which  defendant  was 
arrested. 

Defendant  made  an  affidavit  for  appeal  before 
a  Magistrate  who  had  taken  no  part  in  the  trial, 
and  the  Judge  of  the  County  Court  District  No. 
1,  set  aside  the  judgment  of  the  Magistrates  and 
quashed  the  summons  and  all  proceedings  there- 
under.     Plain tiflf  having  appealed, 

//eld,  that  the  appeal  must  be  allowed.  Mis- 
conduct of  the  Magistrates  cannot  give  an  appeal 
independently  of  the  Statute. 

The  Statute  gives  no  authority  to  any  Magis- 
trate to  prepare  the  affidavit  other  than  the  one 
who  has  heard  the  cause. 

Moir  et  al.  v.  Ramsay,  6  R.  &  G.,  126. 

12.  Appeal  flrom-  None  direct  to  Supreme 

Coart — No  appeal  lies  directly  to  the  Supreme 


811 


JUSTICES  OF  THE  PEACE. 


812 


Court  from  an  order  of  Justices  for  the  removal 
of  paupers.     Even  in  a  regular  appeal  new  evi- 
dence cannot  be  taken  in  this  Court.    Construc- 
tion of  Rev.  Stats.  (2nd  series),  c.  89,  sec.  14. 
Overseers  of  the  Poor  for  Oreti\fidd  v. 
Overaura  of  the  Poor  for  Goahen, 
1  Old.,  695. 

13.  Appeal  from  — Objections  by  appel* 

lant  to  the  regularity  of  proceedings  before  Jus- 
tices must  be  brought  to  the  notice  of  the  Court 
during  the  first  four  days  of  the  term,  and  before 
the  cause  comes  on  for  trial, 

Oraham  v.  Lapierre,  James,  139. 

14.  Appeal-  Noii'Salt— If o  wltnesies  below 

— The  Court  will  not  allow  an  appeal  from  a 
judgment  of  non-suit  in  Justices'  Court  when 
no  witnesses  have  I>een  produced  by  the  plaintiff 
on  the  trial  below. 

McCtdly  V.  Bamehill,  Cochran,  81. 

15.  Appeal  —  None  to  Supreme  from 

County  Court,  when  cause  originates  before 
Justioes— Cases  appealed  from  the  Magistrates' 
Court  to  the  County  Court  cannot  be  brought  by 
appeal  to  the  Supreme  Court. 

Cochr.in  V.  Larcom,  3  R.  &  C,  480. 

16.  Appeal  —  None  to  Supreme   ttom 

County  Court  in  Magistrates'  cases  —  The 
Court  will  not  hear  an  appeal  from  the  County 
Court  in  a  cause  originating  in  the  Magidtrates' 
Court. 

Coolan  V.  McLean,  3  R.  &  C,  479. 

17.  Arbitrators— One,  being  a  Justice, 

may  administer  oath  to  others — The  appoint- 
ment of  a  Magistrate  as  an  arbitrator  will  not 
disqualify  him  for  administering  the  oath  of 
office  to  the  other  two  arbitrators. 

I7i  re  Thomcts  Kenny,  2  Thom.,  14. 

18.  Assault,  unproved  or  trifling— Appeal 

— Plaintiff  instituted  an  action  under  section  23, 
cap.  147,  3rd  Revised  Statutes,  before  two 
Justices  of  the  Peace  against  defendant  for  an 
assault,  and  the  Justices  on  hearing  the  evidence, 
dismissed  his  complaint,  either  deeming  the  of- 
fence not  proved,  or  so  trifling  as  not  to  merit 
punishment.  Plaintiff  thereupon  appealed  to 
the  Supreme  Court,  and  the  Judge  presiding 
at  Annapolis  dismissed  his  appeal,  but  gave  him 
a  rule  nisi  to  bring  the  case  for  argument  before 
the  full  Court. 

Held,  that  in  a  case  of  tiiis  nature,  plaintiff 
was  not  entitled  to  appeal  from  the  decision  of 
the  Justices  of  the  Peace. 


Construction  of  section  8  of  chap.  1,  3rd  Rev. 
Stats. 

Chesley  v.  Orassie,  1  N.  S.  D.,  191. 

19.  Capias  -Affldavit  for— Capias  Issued  by 

Magistrates  set  aside  on  the  ground  that  it  was 
issued,  and  the  defendant  arrested  under  it, 
without  an  affidavit  of  the  grounds  of  plaintiff's 
belief,  as  required  by  chapter  22  of  Acts  of  1879, 
sec.  3. 

McLean  v.  McKay,  1  R.  &  O.,  383. 

See,  also,  ABBEST. 

20.  Certiorari— Notice  to  Justice— 13  Geo. 

2,  c.  18 — The  certiorari  was  attacked  on  tlie 
ground  that  no  notice  had  been  given  to  the 
Magistrate  as  required  by  Imperial  Statute,  1,3 
Geo.  II.,  cap.  18,  but  no  such  ground  was  taken 
in  the  rule. 

Held,  that  the  ground  could  not  be  taken  at 
the  argument. 

Quaere,  whether  the  rule  requiring  notice  ap- 
plied to  this  case  where  the  Justice  acted  as  a 
special  statutory  Court,  and  not  simply  as  a 
Justice  of  the  Peace. 

Tupper  v.  Murphy,  3  R.  &  G.,  173. 

21.  Certiorari -Notice,  &e.  —  k  writ  of 

certiorari  to  remove  a  prosecution  for  selling 
liquor  contrary  to  the  provisions  of  the  Pro- 
vincial License  Act,  from  the  Magistrates'  Court 
into  the  County  Court,  was  quashed  by  a  Judge 
of  the  latter  Court,  on  the  grounds — Ist,  that 
the  parties  applying  for  the  writ  did  not  give  tiie 
six  days'  notice  of  their  intention  to  the  Justices 
required  by  13  Geo.  II.,  c.  18,  s.  5  ;  and  2nd, 
because  they  did  not  swear  that  they  did  not 
sell  liquor  contrary  to  law. 

An  appeal  from  the  decision  of  the  County 
Court  Judge  was  dismissed  with  costs. 

McDonald  v.  Jionan,  7  R.  &  G.,  25. 
See,  also,  CEBTIOBABI. 

22.  Clerk  of  Licenses -BIgbt  to  compen- 
sation under  4th  R.  S.,  c.  75,  s.  28,  for  costs- 
No  right  to,  where  Justices  no  jurisdiction- 
Plaintiff,  as  Clerk  of  License  for  one  of  the  dis- 
tricts of  the  County  of  Cumberland,  brought  an 
action  before  two  Magistrates  to  recover  a  penalty 
for  the  illegal  sale  of  intoxicating  liquors.  The 
Magistrates  rendered  a  decision  in  plaintiff'sfavor 
which  was  quashed  in  the  Supreme  Court,  where 
it  was  brought  by  certiorari,  for  want  of  juris- 
diction, on  the  ground  that  one  of  the  Magis- 
trates was  related  to  plaintiff.  The  Municipal 
Council  having  refused  to  allow  plaintiff  his 
costs,   application    was    made    under   cap.  75, 


813 


JUSTICES  OF  THE  PEACE. 


814 


Revised  Statutes,  4th  series,  sec.  28,  to  amerce 
the  county. 

He.ld,  that  there  being  no  jurisdiction  in  the 
Justices  to  issue  process  or  try  the  cause,  plain- 
tiff ha<l  acquired  no  right  under  the  Statute  to 
be  compensated  for  his  outlay. 
Smith  and  Thompson,  JJ.,  dUsenling. 
Jackson  v.  The  Municipality  of  Cumberland, 
6R.  &G.,  119;  6C.  L.  T.,  442. 

93.  ConTletlon— Appeal  to  Connty  Court- 
None  thence  to  Supreme  Coart— A  conviction 
by  a  .Stipendiary  Magistrate  was  removed  by 
appeal  to  the  County  Court  and  there  quashed. 

Held,  that  no  appeal  .ay  to  the  Supremo  Court 
as  none  was  expressly  given  by  the  Act  creating 
tiie  offence  and  giving  the  appeal  to  the  County 
Court,  although  the  Acts  creating  and  organ- 
izing tlie  County  Courts  gave  a  general  appeal  to 
the  Supreme  Court. 

McDonald  v.  McCtiixh,  5  R.  &  G.,  1. 

24.  CoDTlctlon— By-law  must  be  set  out 

in  conviction — Grounds  in  rule — Defendant 
was  convicted  of  allowing  iiis  cattle  to  go  at  large 
in  the  township  of  Cornwallis. 

//■('/(/,  that  the  oonviction  was  bad  in  that  it 
did  not  set  out  the  by-law  or  ordinance  of  the 
Sessions  creating  the  offence  ;  and  that  the  ob- 
jection was  covered  by  the  ground  taken  in  the 
rule  that  the  conviction  did  not  show  any  offence 
for  which  it  could  lawfully  be  made. 

Starr  v.  //ealea,  4  R.  &  G.,  84. 

25.  ConTlction  —  Essentials  omitted— In- 
formation and  warrant  cannot  be  looked  at  to 
see  that  an  offence  has  been  committed — A 

conviction  for  selling  intoxicating  liquor  con- 
trary to  the  provisions  of  the  Canada  Temper- 
ance Act  contained  no  reference  to  the  Act,  did 
not  show  where  the  offence  was  committed,  and 
merely  adjudged  that  the  defendant  pay  $100 
for  selling  intoxicating  liquors. 

Hdil,  bad. 

Tlie  information  and  warrant  cannot  be  looked 
at  to  see  that  an  offence  has  been  committed. 

Woodhckv.  Dickie,  6  R.  &  G.,  86  ; 
6C.  L.  T.,  142. 

26.  ConTlction  for  fonrth  oflTence  without 

notice— Previous  conviction — Defendant  hav- 
ing been  summoned  for  selling  intoxicating 
liquors  without  license  made  a  written  confession, 
upon  which  the  Justices  inflicted  a  penalty  upon 
him  as  for  a  fourth  offen>.;e.  Defendant  was  not 
present  at  the  trial,  nor  was  any  intimation  given 
him  of  any  intention  to  proceed  against  him 
except  as  for  a  first  offence.     The  original  con- 


victions in  the  three  previous  actions  against  the 
defendant  were  produced  and  read  at  the  trial, 
but  no  other  evidence  was  offered. 

Held,  on  certiorari,  that  the  conviction  should 
be  quashed. 

McOillivray  v.  McDonald,  3  N.  S.  D.,  .320. 

27.  Conviction  for  tiiird  oflTence— Defiend- 

ant  was  convicted  in  her  absence  of  a  third 
offence  against  the  Canada  Temperance  Act, 
1878,  and  was  fientenced  to  imprisonment  for 
sixty  days  in  the  County  Jail  at  Annapolis,  and 
to  pay  the  sum  of  89.33  costs  to  the  prosecutor, 
and  in  default  to  be  imprisoned  for  a  further 
term  of  fifteen  days. 

Held,  that  the  Magistrate  had  exceeded  his 
jurisdibtion  in  making  the  conviction  in  the 
absence  of  the  defendant,  and  that  the  convic- 
tion must  therefore  he  set  aside. 

Alw,  that  under  the  Canada  Temperance  Act, 
sec.  107,  it  is  imperative  upon  the  Magistrate  to 
adopt  the  procedure  specially  made  for  cases 
under  the  Act,  the  express  provisions  in  that 
section  taking  the  matter  out  of  the  ordinary 
course  laid  down  in  the  Summary  Convictions 
Act. 

Queen  v.  Sailer,  20  N.  S.  R.,  (8  R.  &  G.),  206  ; 

8  C.  L.  T.,  380. 

38.   Conviction  for  violation  of  City  Cbar< 

ter — Alternative  punishment — Penalty— How 
recovered — The  defendant  having  been  con- 
victed of  a  violation  of  the  charter  of  the  City 
of  Halifax,  Acts  1864,  chapter  81,  section  227,  by 
keeping  a  disorderly  house  was  adjudged  to  pay 
the  sum  of  $40  and  "  if  the  said  sum  be  not  paid 
forthwith,  to  be  imprisoned  in  the  city  prison  for 
the  apace  of  ninety  days." 

Held,  that  the  alternative  punishment  im- 
posed was  authorized  by  section  1.39  of  tlie  Act ; 
also,  that  under  the  Acts  of  1882,  chapter  25, 
section  19  the  penalty  was  clearly  recoverable  in 
the  name  of  the  City  of  Halifax  before  the 
Stipendiary  Magistrate  at  the  Police  Court. 
The  City  of  Halifax  v.  Brown, 

6  R.  &G.,  103; 

6  C.  L.  T.,  144. 

29.   Conviction— Irregularities  in— In  an 

action  for  breach  of  the  License  Laws,  where 
the  plaintiff  is  described  in  the  writ  as  clerk  of 
the  County  of  Colchester,  and  he  is  only  clerk 
for  one  of  the  districts  therein,  and  where  the 
process  was  served  by  a  person  not  a  sworn  con- 
stable, and  the  conviction  did  not  follow  the 
exact  words  of  the  Statute, 

Held,  not  sufficient  irregularity  to  quash  the 

proceedings. 

McCully  V.  McKay,  Cochran,  82. 


815 


JUSTICES  OP  THE  PEACE. 


816 


80.  Conviction  under  License  Law  void 

where  defendant  not  present  at  the  trial,  &c., 
and  no  affidavit  of  service — The  Court  made 
absolute  a  rule  nini  for  a  habean  corprm  where  it 
appeared  that  the  prisoner  had  been  arrested  ou 
an  execution  for  penalties  under  the  License 
Laws,  the  Justice  having  proceeded  with  the 
cause  in  the  absence  of  defendant  without  an 
affidavit  of  the  service  of  the  summons,  although 
on  the  hearing  of  the  rule  nxKi  it  was  made  to 
appear  that  the  summons  had  actually  been 
served. 

In  re  Donald  McEacheni,  1  R.  &  G.,  321. 

31.  ConTiction— Offence  In,  different  fh>m 

that  charged  in  summons  —  An  action  was 
brought  against  the  defendant,  in  the*pGiice 
Court,  at  the  suit  of  the  City  of  Halifax,  for  an 
alleged  violation  of  a  city  ordinance  in  keeping 
a  marine  and  junk  xlore  without  license  there- 
for, and,  after  trial,  the  defendant  was  con- 
victed of  keeping  a  rwj  and  junk  nhop  without 
license. 

Held,  per  Weatherbe  and  Rigby,  J  J. — That 
the  conviction  was  bad  in  that  the  offence  for 
which  the  defendant  was  convicted  was  different 
from  that  charged  in  the  summons. 

Per  Rigby,  J. — That  the  criminal  side  of  the 
City  Court  had  jurisdiction  over  the  subject 
matter,  and  could  afford  complete  redress,  and 
that  the  prosecution  was  wrongly  instituted  in 
the  Police  Court,  at  the  suit  of  the  city. 

The  City  of  Halifax  v.  O'Connor, 

3R.  &G.,  190. 

32.  Criminal  Information  against— Notice 

of — A  Magistrate  is  entitled  to  six  days'  notice 
of  a  motion  for  a  criminal  information  against 
him  for  a  violation  of  his  duty. 

The  motion  must  be  made  in  sufficient  time  to 
enable  the  party  accused  to  answer  the  same 
term. 

Queen  v.  Huestix,  James  101. 

33.  Disqualification  by  Interest— Appeal 

from  order  of  Sessions  of  Kings  County  setting 
aside  an  order  of  settlement  by  Overseers  of 
Poor  for  Granville,  after  notice  of  preliminary 
objection  by  the  latter. 

Per  Sir  William  Young,  C.  J. — Evidence  hav- 
ving  been  given  before  the  Court  on  the  prelimi- 
nary objections  in  the  notice  in  proof,  that  sev- 
eral Justices  of  the  Peace  residing  in  the  Town- 
ship of  Cornwallis,  and  liable  to  be  assessed 
therein  for  the  support  of  the  poor,  took  part 
in  the  appeal  against  the  order  of  the  Overseers 
for  Granville,  and  voted  on  the  determination 
thereof,  and  it  appearing  to  this  Court  that  in 


consequence  of  such  interposition  the  Court  of 
Sessions  was  not  duly  constituted  for  the  hear- 
ing of  such  appeal,  decision  therein  is  horvhy 
reversed  and  judgment  given  for  the  respond- 
ents therein. 

1'  corn's  Legal  Maxims,  118, 127;  1  Q.  B.,267 ; 
6Q.  H.,75.3. 

OvemeerM  of  Poor  for  Comwallin  v.  Oversten 
of  Poor  for  GranviUe.    Unreported,  1S71. 

34.  Disqualification  by  Interest- The  de* 

fendant  was  convicted  before  F.  A.  Laurence, 
Stipendiary  Magistrate  presiding  in  tlie  Town 
Court  of  Truro,  of  selling  intoxicating  liijuon) 
contrary  to  law.  The  Stipendiary  Magistrate 
was  a  ratepayer  of  the  Town  and  received  a  tixc<l 
salary  as  Stipendiary,  payable  out  of  the  funds 
of  the  Town  to  which  half  the  penalty  imimsed 
became  payable. 

Held,  that  the  Magistrate  was  disqualified  liy 
interest  from  acting  in  the  matter. 

Tupper  V.  Murphy,  3  R.  &  G.,  173. 

35.  Disqualification  by  relationship -Con. 

viction  quashed  —  Conviction  for  cruelty  to 
animals  quashed,  one  of  the  Justices  being  the 
father  of  the  complainant. 

In  re  D.  Bary  Hobnan,  3  R.  &  C,  375. 

36.  Execution— Last  cow  cannot  be  taken 

— The  last  cow  cannot  be  taken  on  an  execution 
issued  out  of  the  Magistrates'  Court. 

McLean  v.  Watson  et  al.,  2  Thorn.,  406. 

37.  Fine  and  imprisonment  In  alternatlre 

— Plaintiff  was  charged  before  the  Stipendiary 
Magistrate  for  the  City  of  Halifax  vt  itli  lewd 
conduct  and  keeping  a  room  or  house  of  prosti- 
tution, and  was  lined  $50,  and,  in  event  of  non- 
payment, ordered  to  be  imprisoned  two  months. 
There  was  evidence  that  the  Magistrate  ordered 
him  into  custody,  where  he  remained  till  the 
fine  was  paid,  but  this  was  not  put  to  the  jury. 

Held,  per  McDonald,  C.  J.,  and  McDonald,  J., 
that  the  Magistrate  was  not  liable  to  an  action 
for  false  imprisonment. 

Per  Rigby  and  Smith,  JJ.— That  the  convic- 
tion in  the  alternative  was  bad,  and  the  im- 
prisonment thereunder  mdawful. 

Marter  v.  Pryor,  4  R.  &  G.,  498. 

38.  Jurisdiction— Information  andwar> 

rant  must  show  facts  giving  jurisdiction- 
Constable — In  an  action  for  the  conversion  of  a 
quantity  of  intoxicating  liquors,  the  defendant, 
P.,  justified  as  a  constable,  acting  under  a 
warrant  purporting  to  have  been  issued  by  a 
Justice  of  the  Peace  under  the  provisions  of  the 


817 


JUSTICES  OF  THE  PEACE. 


818 


Canada  Temperance  Act,  1878,  and  the  defen- 
dant M.  as  his  assiBtant. 

The  facts  necessary  to  give  jurisdiction  did 
not  appear  cither  in  the  information  or  warrant, 
and  the  warrant  was  issued  by  one  Justice,  con- 
trary to  section  108  of  the  Act. 
JIM,  that  the  conviction  was  bad. 
AIko,  that  the  constable  being  a  trespasser, 
his  assistant  couhl  not  justify  under  him. 

Nothing  will  be  intended  in  favor  of  the  juris- 
diction of  an  inferior  court. 

Oaltihtw  V.  Ptttmon  t<  a/.,  20  N.  H.  R., 

(8R.  &«.),  222; 
8  C.  L.  T.,  397. 


39.  Jurisdiction-Right  Of  Supreme  Court 

to  look  at  evidence  to  determine  jurisdiction 
below — Defendant  was  convicted  l)efore  the 
Stipendiary  Magistrate  for  the  Police  District  of 
Yarmouth  of  having  unlawfully  sold  intoxicating 
liquor  contrary  to  the  provisions  of  the  Canada 
Ttmpwrance  Act,  1878.  A  writ  of  certiorari 
having  issued,  the  Magistrate  sent  up  the  min- 
utes of  the  evidence  taken  before  him  as  part  of 
his  return,  instead  of  returning  the  facts. 

Hdd,  following  Hawen  v.  Hart,  6  R.  &  CJ.,  42, 
that  the  evidence  being  liefore  the  Court  it  might 
be  looked  at  to  determine  the  question  of  juris- 
diction. 

Queen  v.  McDonald,  7  R.  &  G.,  .3.36  ; 
7  C.  L.  T.,  .376. 

10.   Mandamus  to  Justices,  £c.— Canada 

Temperance  Act— Proclamation  of— Applica- 
tion was  made  to  the  Court  for  a  writ  of  man- 
danuis  to  compel  two  Justices  of  the  Peace  for 
tlie  County  of  Cumberland  to  issue  a  warrant 
against  defendant  for  a  violation  of  the  Canada 
Temperance  Act,  1878. 

The  Justices  had  declined  to  issue  the  warrant 
on  the  ground  that  the  notice  to  the  Secretary 
of  .State  referred  to  in  sections  5  and  6  of  the 
Act,  and  recjuired  to  be  filed  in  the  office  of  the 
Sheriff  or  Registrar  of  Deeds  of  or  in  the 
County,  was  not  regularly  filed,  there  being  two 
Registrars  of  Deeds  in  the  County  of  Cumber- 
land, one  at  Amherst  and  one  at  Parrsboro,  and 
tlie  notice  having  been  deposited  only  with  the 
former,  as  a  consequence  of  which  the  Justices 
considered  that  the  subsequent  proceedings  were 
irregular  and  that  the  Act  was  not  in  force  in 
the  County. 

The  proclamation  having  issued  and  the  elec- 
tion having  taken  place  and  resulted  in  the 
adoption  of  the  Act, 

Hdd,  that  as  the  effect  of  going  behind  the 
election  would  be  to  create  difficulties  and  mis- 
chief, the  language  of  the  Act  must  be  regarded 


as  directory  and  not  mandatory,  and  that  the 
mandamuH  applied  for  must  issue. 

Per  McDonald,  C.  J.,  and  Ritchie,  J.— That 
the  (Governor  in  Council  being  constituted  the 
judicial  authority  to  determine  whether  the  pre- 
liminaries directed  by  the  Act  had  been  complied 
with,  and  having  determined  in  the  affirmative 
and  issued  the  proclamation,  the  regularity  of 
the  preliminary  proceedings  could  not  be  ques- 
tioned. 

iimen  v.  Hick^,  7  R.  &  G.,  89  ; 
7  C.  L.  T.,  14.3. 

41.  Record  in  Police  Court— What  sufll- 

cient — 

Hdd,  that  the  following  record  of  the  Police 
Court  was  sufficient  evidence  of  the  termina- 
tion of  the  proceedings:  "J.  J.  Backstrom, 
charge,  stealing  two  rings  (pros.  J.  Beck) ;  dis- 
charged." 

Bachitrom  v.  Beck,  5  R.  &  G.,  538. 

42.  Road— laying  out  of— Freeholders - 

Three  Magistrates,  forming  a  part  of  the  Court 
of  Sessions,  by  whom  the  return  of  a  precept 
issued  under  cap.  62  of  the  Revised  Statutes, 
3r<l  series,  for  laying  out  a  road,  is  to  be  decided, 
are  not  the  three  disinterested  freeholders  con- 
templated by  that  Act. 

Queen  v.  Chifrman,  2  Thorn.,  292. 

43.  Rule  to  compel  Magistrate  to  act— 

Ruleapplied  forunder4th  R.  S.,  c.  112,  sec.  13,  to 
compel  a  Stipendiary  Magistrate  to  make  an 
order  for  the  commitment  of  defendant  under 
Dominion  Act  of  1869,  c.  20,  sec.  25,  for  not  pro- 
viding necessary  food,  etc.,  for  his  wife,  refused 
on  the  ground  that  the]  Justice  in  declining  to 
make  the  order  exercised  a  judicial  discretion. 
Queen  v.  Shortis,  1  R.  &  (i.,  70. 

44.  Stipendiary  Magistrates  —  Act  creat- 
ing not  ultra  r^re«— Druggist  selling  intoxicat- 
ing liquors — Defendant  was  convicted  liefore  the 
Stipendiary  Magistrate  for  the  Police  Division 
of  Yarmouth  of  selling  intoxicating  li(]Uors  with- 
out license,  and  appealed  to  the  County  Court, 
contending  that  the  Stipendiary  Magistrate  had 
no  jurisdiction,  as  the  Act  for  appointing  Stipen- 
diary Magistrates  and  thus  creating  a  Court  was 
ultra  viren  ;  that  there  had  been  no  statement  of 
claim  filed  before  the  issue  of  the  writ  as  provid* 
ed  by  4th  R.  S.,  cap.  91,  sec.  3,  and  that  he  was 
justified  in  selling  liquors  to  be  used  medicinally 
by  virtue  of  his  being  a  licensed  druggist, 
although  no  appointment  had  been  made  by  the 
Sessions  under  4th  R.  S.,  cap.  75,  sec.  41.  The 
sales  were  made  by  the  defendant  and  his  cleric 


819 


JUSTICES  OF  THE  PEACE. 


820 


indiaoriminately  and  without  a  doctor'*  pre< 
acription. 

The  judgment  of  the  County  Court,  diimiu- 
ing  the  appeal,  waa  affirmed,  with  costs. 

Gardner  v.  Parr,  2  R.  &  O.,  225 ; 
1  C.  L.  T.,  710. 

45.  Stipendiary  Magtitnte  held  within 

13  Geo.  2,  0. 13,  ■.  5— Defendant  waa  convicted 
before  the  Sti{iendiary  Magistrate  for  Cornwaliia 
Police  District  of  a  violation  of  the  Canada 
Temperance  Act,  1878,  and  the  conviction 
having  been  brought  up  by  certiorari,  the  Court 
waa  moved  to  aet  the  conviction  aaide  on  the 
ground  that  tbe  Act  waa  not  in  force  when  it 
waa  made. 

The  order  for  the  ceWiorart  waa  not  moved  for 
until  after  the  lapse  of  twenty-two  months  from 
the  date  of  the  conviction. 

Held,  that  in  making  the  conviction  the  Sti- 
pendiary Magistrate  waa  exercising  the  f  unctiona 
of  a  Juatice  of  the  Peace,  and  consequently  that 
the  Imperial  Act,  13  (Jeo.  2,  c.  18,  a.  5,  limiting 
the  granting  of  the  writ  of  certiorari  to  six 
months  after  the  date  of  the  conviction,  applied. 
The  motion  waa  refused  with  costs  and  a  proce- 
dendo ordered.     Rigby,  J.,  dissenting. 

The  question  was  not  raised  whether  the  Act 
of  13  Geo.  2  was  in  force  in  this  Province,  but 
merely  whether  the  Stipendiary  Magistrate  was 
within  the  Act.  See  Queen  v.  Porter,  20  N.  S.  R., 

Queen  v.  McFadden,  6  R.  &  G.,  426 ; 
6  C.  L.  T.,  538. 

46.  Stipendiary  Magistrate— Jurisdiction 

concurrent,  with  two  Justicea— The  jurisdiction 

of  the  Stipendiary  Magistrate  under  3rd  Revised 

Statutes,  <:hapter  75,  is  concurrent  only  with 

that  of   two  Justices   of    the  Peace  and  not 

exclusive. 

Anderson  v.  Mason,  1  N.  S.  D.,  1 ;  2  Hd.,  36ft. 

47.  Stipendiary  Magistrate  —  Seamen's 

wages — Jariadiction  in  actions  for  —  What 
neceasary  to  show  to  give  jariadiction — Plain- 
tifif  contracted  with  one  Feltmate,  who  professed 
to  be  the  owner  of  a  vessel,  to  sail  her  as  master 
at  a  stipulated  rate  of  wages.  After  the  lapse 
of  six  moriths  Feltr.iate,  who  had  up  to  that 
time  been  on  board,  left  the  ship,  and  plaintiff 
discovered  that  he  waa  not  the  owner,  the  poa- 
eeasion  of  the  ship  having  been  demanded  by  the 
deferdant,  the  real  owner.  Plaintiff  then  sued 
defendant  for  wages  as  master  before  the  .Sti- 
pendiary Magiatrate  under  the  Canadian  Statute 
of  1873,  cap.  129,  aeca.  52  and  59,  which  enable 
a  master  to  aue  for  wages  due  him,  not  exceeding 
f200. 


Held,  that  the  Stipendiary  had  no  juriadiction, 
and  that  the  judgment  could  be  reviewed  on 
certiorari. 

McDonald,  C.  J.,  and  Rigby,  J.,  disscntinr). 

Per  Weatherbe,  J. — That  the  oaco  came  within 
the  principles  aa  to  a  jurisdiction  given  to  try 
cases  l)etween  persons  of  a  specified  class  or 
classes,  and  the  Magiatrate  had  no  evidence  of 
either  of  the  two  claaaea  auing  and  being  sued 
respectively  in  this  cane 

Hawes  v.  Hart,  6  R.  &  O.,  42 ; 
6  C.  L.  T.,  140. 

48.  Stipendiary  Magistrate  who  Is  also  a 
J.  P.  can  act  aa  such  under  Canada  Temper- 
ance Act— The  Stipendiary  Magiatrate  of  New 
Glasgow  sat  aa  a  Juatice  of  the  Peace  with 
another  Juatice  to  try  a  caae  under  the  Canada 
Temperance  Act,  which  provides  that  triala  may 
be  had  before  a  Stipendiary  Magistrate  or  any 
two  other  Justicea  of  the  Prace  for  the  County. 

Held,  that  no  disqualification  waa  intended 
by  the  word  "  other,"  and  that  the  conviction 
waa  good. 

Weatherbe,  J.,  dubitante. 

Queen  v.  Graham,  6  R.  &  G.,  45.); 
6C.  L.  T.,537. 

49.  Sammons— Direction  of- Jurisdiction 

of  Stipendiary  Magiatrate  concurrent— Tlie 
directing  of  the  writ  in  a  suit  before  a  Stipen- 
diary Magiatrate  for  seaman'a  wages,  to  any  of 
the  conatablea  of  the  county,  instead  of  to  tlie 
sheriff  or  his  deputy,  ia  not  a  nullity,  but  a  mere 
irregularity,  which  ia  waived  by  appearance. 

The  jurisdiction  of  the  Stipendiary  Magistrate 
under  3rd  Revised  Statutes,  c.  75,  is  concurrent 
only  with  that  of  two  Justicea  of  the  Peace  and 
not  excluaive. 

In  this  case  the  writ  waa  signed  by  and  made 
returnable  liefore  the  Stipendiary  Magistrate, 
but  two  Justicea  of  the  Peace  were  substituted 
for  him  on  the  trial  by  the  request  of  the  defen- 
dant. 

Held,  that  the  irregularity,  if  any,  was  cured 
by  the  assent  of  the  defendant. 

Construction  of  3rd  Revised  Statutes,  cap.  75, 
sec.  25,  and  of  Provincial  Acta  of  1865,  cap.  1, 
sec.  13. 
Anderson  v.  Mason,  1  N.  S.  D.,  I ;  2  Old.,  369. 

50.  Snmmons— Indorsement— Act  of  1865, 

c.  1,  8.  5,  construction  of— A  Magistrate's  sum- 
mons not  indorsed  with  the  notice  required  by 
the  Provincial  Act  of  1865,  chap.  I,  sec.  6,  is 
abaolutely  void. 

McDonald  v.  Mills,  2  Old.,  165. 


821 


KINGS  COLLEGE. 


822 


51.  Sammont  tuoed  br  two  JmUcm— 

Tried  by  one  of  theie  and  a  third  Juitioe— 
Conviction  bad— Where  a  aummons  for  aelling 
liijuor  contrary  to  law  waa  isaued  by  two  JuaticeN 
of  the  Peace,  and  the  cause  tried  before  one  of 
them  and  a  Juatice  who  had  not  aigned  the 
aummona, 
Held,  that  the  conviction  muat  lie  aet  aaide. 
Weeks  v.  Bonham,  2  R.  &  C,  377. 

53.  Htlpendiarj  Maglatrate-Jnrisdictlon 

—The  defendant  was  brought  before  the  Stipend- 
iary Magistrate  for  the  County  of  Halifax,  and 
tried  and  committed  for  an  assault  on  the  high 
soas.  The  trial  and  conviction  took  place  at  the 
office  of  the  Stipendiary  Magistrate  in  the  City 
of  Halifax,  which  waa  outside  the  limits  of  the 
County. 

HM,  that  the  conviction  having  been  made 
outside  the  territorial  limits  of  the  Magistrate's 
jurisdiction,  was  bad. 

Quaere,  whether  if  made  at  the  dwelling  house 

«f  the  Magistrate,  though  outside  the  limits  of 

his  jurisdiction,  the  conviction  might  have  been 

covered  by  the  Imperial  Act,  9  Geo.  1,  cap.  7. 

Queen  v.  Hwjhes,  5  R.  &  G.,  194. 

53.  Summons  —  Want  of  notice  on  — 

Waiver  —  The  objection  to  the  want  of  the 
notice  on  a  Magistrate's  summons  required  by 
the  Provincial  Act  of  1865,  cap.  1,  sec.  6,  is 
waived  by  the  defendant  when  he  goes  into  his 
evidence  at  the  trial  before  the  Magistrate. 

Belloni  v.  Murphy,  2  Old.,  166. 

54.  Warrant  —  Execution  of  —  Action 

against  constable— No  action  lies  against  a 
constable  for  the  execution  cf  a  warrant,  how- 
ever defective,  where  the  Magistrate  issuing  the 
warrant  has  jurisdiction. 

McGregor  v.  Patterson,  1  Old.,  211. 

5a.  Warrant— Protection  under— Execu< 

tion  substituted  for  warrant — The  Provincial 
Statute,  .34  Geo.  3,  c.  15,  protecting  officers  and 
others,  their  assistants,  acting  under  the  warrant 
of  a  Justice,  extends  to  and  includes  them, 
"'hen  acting  under  an  execution  substituted  for 
such  warrant. 

Seaman,  2nd,  v.  DeWolf,  1  Thorn.,  193. 

56.  Witness,  arrest,  Ac— Plaintiff  was 

summoned  to  appear  as  a  witness  for  the  prose- 
cution on  the  trial  of  an  information  for  a 
violation  of  the  Canada  Temperance  Act  of  1878. 
He  was  served  with  the  summons,  and  was  paid 
the  regular  fees  for  travel  and  attendance,  but 
disobeyed  the  summons  and  made  no  excuse. 
The  Magistrate,  before  whom  the  information 


waa  laid,  iaaued  four  warrants  in  aucceaaion  to 
have  plaintiff  arreated  and  brought  before  him 
to  teatify,  and  adjourned  the  hearing  of  the 
cauae  from  time  to  time  for  that  purpose.  Plain- 
tiff evaded  arrest  under  the  first  three  warrants, 
but  waa  arretted  under  the  fourth.  Having 
eacaped,  he  waa  re-arreated  by  defendanta,  who 
gained  acceaa  to  a  houae  in  which  he  had  taken 
refuge,  by  ra'  ug  a  window.  On  hia  refuaal  to 
give  bail,  hr  waa  placed  in  jail. 

Held,  (1.)  That  aa  the  Magistrate  had  juris- 
diction to  enter  on  the  inquiry  aa  to  the  fact  of 
the  proclamation  of  the  Act,  and  whether  licenses 
were  outstanding  or  not,  he  had  authority  to 
compel  the  attendance  of  witnesses. 

(2. )  With  regard  to  defendants  opening  the 
window  and  entering  the  house  to  make  the  ar- 
rest, (a.)  That  the  prosecution  being  a  crimi- 
nal proceeding,  the  warrant  was  not  subject  to 
the  limitations  which  attach  to  civil  process, 
but  had  many  of  the  characteristics  of  an  attach- 
ment for  which  it  was  a  substitute,  (b. )  That 
the  evidence  showing  a  previous  arrest  and  an 
escape,  the  defendants  might  lawfully  enter  the 
house  in  fresh  pursuit. 

(3.)  That  the  placing  of  the  plaintiff  in  jail 
under  the  circumstances  was  justifiable. 

(4.)  That  section  46  of  the  Summary  Con- 
victions Act  is  not  intended  to  prevent  more 
than  one  adjournment,  or,  if  so,  the  plaintiff 
could  not  take  the  objection. 

Messenger  v.  Parker  et  al,,  6  R.  &  G.,  237  ; 

6C.  L.  T.,444. 


KING'S  COLLEGE. 

1.   Dismissal  of  a  Professor— Powers  of 

the  Board  of  Governors — Powers  of  the  visi- 
tor— An  application  was  made  for  a  mandamus 
to  compel  the  governors  of  King's  College, 
Windsor,  to  restore  W.  E.  W.  a  professor  of 
the  College,  to  certain  offices  from  which  he  had 
been  dismissed  for  having  published  in  a  public 
newspaper,  a  letter  "incompatible  with  the 
relation  of  a  professor  to  the  governing  body, 
and  the  superior  officers  of  the  university  and 
manifesting  "  a  contempt  of  authority  likely  to 
lead  to  subversion  of  discipline,  &c.  The  college 
was  incorporated  under  an  Act  of  the  Legislature 
of  Nova  Scotia  in  1789,  and  a  charter  was  ob- 
tained from  the  Crown.  Thirteen  years  later 
letters  patent  were  issued  by  the  Crown,  appoint- 
ing the  Bishop  of  Nova  Scotia  visitor  of  the 
college.  In  1853  a  Provincial  Act  was  passed 
repealing  the  former  Act  and  re-appointing  and 
re-incorporating  the  Board  of  Governors,  giving 


828 


LANDLORD  AND  TENANT. 


824 


them  power  to  make  laws  and  ordinances  for  the 
regulation  and  management  of  the  college,  and 
providing  that  the  Bishop  of  Nova  Scotia,  for 
the  time  being,  should  be  ex  officio  a  Governor 
of  the  college.  President  of  the  Board,  and 
visitor. 

By  the  original  Act  an  annual  charge  was 
made  upon  the  revenue  of  the  Province  for  the 
purpose  of  purchasing  lands  and  erecting  build- 
ings, and  certain  public  officials  were  made  ex 
officio  members  of  the  Board  of  Governors. 

No  notice  was  given  to  the  professor  of  the 
proceedings  which  terminated  in  the  sentence  of 
removal. 

The  affidavit  upon  which  the  application  for 
mandamus  was  made  was  headed  "In  the  mat- 
ter of  an  application  intended  to  be  made  to  the 
Supreme  Court  for  a  mandamus,"  etc.. 

Held,  per  Thompson  and  Rigby,  JJ.,  and 
McDonald,  C.  J.,  that  the  mandamus  should 
issue ;  that  the  professor  was  entitled  to  notice ; 
that  the  College  being  a  public  corporation  estab- 
lished by  public  statute  and  the  visitor  being 
deprived  of  the  power  to  dismiss,  the  wide  range 
of  powers  incident  to  the  office  of  visitor  at 
common  law  were  not  conferred  upon  him,  and 
the  Court  therefore  had  power  to  hear  the 
motion  ;  that  the  office  of  professor  was  one  in 
relation  to  which  mandamus  would  lie.  Also, 
that  the  heading  of  the  affidavit  upon  which  the 
application  was  made  was  mere  matter  of  de- 
scription, and  was  distinguishable  from  the 
heading  of  the  affidavit  in  /n  re  Peter  Ross, 
2R.  &C.,  596. 

Weatherbe  and  McDonald,  JJ.,  dinsented  on 
the  ground  that  the  sole  appeal  from  the  decision 
of  the  board  was  to  the  visitor,  and  the  latter 
on  the  further  ground  that  tl^e  heading  of  the 
affidavit  was  bad. 

He  Wilson,  6  B,.  &G.,  180; 
6C.  L.  T.,447. 

2.    Grant  to— Where  a  grant  was  made 

to  "  The  Governors,  President  and  Fellows  of 
King's  College,  at  Windsor,  in  the  Province  of 
Nova  Scotia,"  and  an  action  of  trespass  was 
brought  by  "The  Governors  of  King's  College, 
Nova  Scotia,'*  (the  real  name  of  the  corporation), 
Held,  that  the  grant  was  prima  fucie  made 
to  the  corporation. 

Governors  of  Kimfs  College  v.  McDmudd, 

2  Thorn.,  106. 


LABEL. 


misled  and  the  plainti£P injured  will  be  restrained 
as  a  fraud  upon  the  plaintiff,  and  though  an 
imitation  will  be  deemed  colorable  if  it  be  such 
that  a  careful  inspection  ^°,  required  to  dis- 
tinguish it,  yet  a  Court  will  not  interfere  when 
ordinary  attention  would  enable  a  purchaser  to 
discriminate.  It  is  not  enough  that  a  careless, 
inattentive  or  illiterate  purchaser  might  be  de- 
ceived by  the  resemblance, 

Johnston  et  al.  v.  Parr,  R.  E.  D.,  98. 


LADING,  BILL  OF- 
See  SHIPPING. 


Imitation  of,  restrained  —  Tbe  imitation 

of  labels  and  wrappers  whereby  the  public  are 


LANDLORD  AND  TENANT. 

1.  Demand  of  possession— Proposed  par* 

chaser  refuses  to  accept  deed  after  going  into 
possession— Cannot  be  ejected  without  de- 
mand— A  party  who  has  entered  into  possession 
of  land  under  an  agreement  to  purchase,  and  has 
refused  to  accept  a  deed  of  the  land  tendered  to 
him,  on  the  ground  that  he  does  not  consider  the 
deed  a  proper  one,  has  not  by  such  refusal  so 
changed  the  character  of  his  position  as  a  tenant 
at  will  as  to  put  himself  in  the  position  of  a 
trespasser,  and  cannot  be  ejected  without  de- 
mand of  possession. 

Lewer  et  al.  v.  McCiUloch,  1  R.  &  C,  315. 

2.  Distress  before  rent  due  -Second  dig* 

tress  for  same  rent— Plaintiff  was  tenant 
defendant  who  tlistrained  for  the  first  quarter's 
rent  before  the  expiration  of  the  first  month. 
There  was  no  evidence  to  show  tliat  the  rent  was 
payable  in  advance.  Defendant's  wife  gave  se- 
curity for  the  month's  rent.  About  the  middle 
of  the  second  month  the  defendant  distrained 
again  for  the  first  month's  rent. 

Held,  thai  even  if  the  first  distress  was  legal 
the  defendant  was  not  justified  in  the  second,  as 
the  plaintiff  had  committed  no  act  to  prevent 
him  from  getting  the  benefit  of  that  distress. 

Harris  v.  mer,  2  N.  S.  D.,  466. 

3.  Distress  for  rent— Abandonment  of— 

Plaintiff  through  his  bailiff  distrained  on  goods 
of  his  tenant  Bryne,  April  5th,  but  no  attempt 
was  made  to  sell  until  twelve  days  afterwards. 
No  appraisement  was  made,  and  the  tenant  was 
left  in  possession.  One  reason  given  for  the 
delay  was  that  the  tenant's  children  were  sick 
and  could  not  be  moved,  but  there  were  other 


825 


LANDLORD  AND  TENANT. 


826 


circumstances  connected  with  the  delay  that 
pointed  to  an  abandonment  of  the  distress  by 
the  bailiff.  The  goods  were  seized  April  16th, 
under  writ  of  replevin,  by  defendant,  as  Sheriff, 
at  the  suit  of  a  chattel  mortgagee,  upon  which 
this  action  was  brought,  to  recover  damages  for 
the  removal  of  the  goods.  The  County  Court 
Judge  found  that  the  plaintiff  must  be  consid- 
ered as  having  abandoned  his  distress,  and  he 
gave  judgment  for  defendant. 

Held,  that  the  appeal  must  be  dismissed  with 
Costs. 

Per  Smith,  J. — That  the  goods  had  not  been 
sold  in  reasonable  time,  and  that  although  the 
agreement  between  the  landlord  and  the  tenant 
for  delay  would  obviate  this  difficulty  had  the 
question  arisen  between  those  parties,  there  was 
no  pretence  to  hold  that  as  against  the  Sheriff 
the  goods  were  in  custodia  legis. 

Per  McDonald,  J. — That  the  Judge  of  the 
County  Court  having  found  that  the  distress  had 
been  abandoned,  this  Court  had  no  power  to 
interfere  with  the  finding,  and  that  the  Court 
could  only  reverse  his  decision,  if  at  all,  on  the 
ground,  not  that  it  was  against  the  weight  of  evi- 
dence, but  that  there  was  no  evidence  to  support 
it,  tlie  appeal  not  having  been  taken  on  the  ground 
that  it  was  against  the  weight  of  evidence. 

Per  Weatherbe,  J.  —  That  the  evidence  in 
support  of  plaintiff  was  of  so  suspicious  a  char- 
acter that  the  Judge  below  was  enabled  in  the 
exercise  of  an  intelligent  discretion  to  find  as 
he  had  done  and  had  properly  done. 

James,  J.,  dissenting, 

Held,  that  there  had  been  no  abandonment, 
and  interpreted  the  finding  of  the  County  Court 
Judge  that  there  had  l)een,  not  as  a  conclusion  of 
fact,  but  as  a  conclusion  of  law,  which  he  held 
to  be  erroneous. 

Naylw  V.  Bell,  2  R.  &  G.,  444  ; 
2C.  L.  T.,263 

4.    Distress  for  rent— Agreement  not  to 

distrain  —  Mrs.  M.  received  from  plaintiffs 
certain  articles  of  furniture,  under  the  foUowinf 
written  memorandum  signed  by  her :  "Received 
from  Messrs.  P.  &  Son  the  following  articles  of 
furniture  for  which  I  am  to  pay,  &c.  The  said 
furniture  to  remain  the  property  of  W.  F.  & 
Son  till  paid  for  in  full,  and  in  the  event  of  non- 
payment the  said  W.  F.  &  Son  can  take  the 
furniture  back."  The  defendant,  who  was  Mrs. 
M's.  landlord,  before  the  furniture  was  delivered, 
signed  the  following  written  memorandum : 
"  The  bearer  Mrs.  M.  being  about  to  purchase 
some  furniture  from  W.  F.  &  Son,  and  my  rent 
being  guaranteed,  I  hereby  agree  not  to  take  the 

•  furniture  so  to  be  provided  by  W.  F.  &  Son,  for 

■  any  rent  that  may  become  due." 


Held,  that  defendant  was  estopped  from  dis- 
training on  the  furniture  so  supplied. 

FroLser  et  al.  v.  Wallace,  2  R.  &  C,  337. 

0»  appeal  to  the  Supreme  Cmirt  of  Canada , 

Held,  affirming  the  judgment  below,  that  the 
memorandum  signed  by  defendant  constituted 
a  binding  contract  or  arrangement  with  F.  & 
Son  not  to  distrain. 

Wallace  v.  Fraaer,  2  S.  C.  R.,  522. 

5.  Distress  for  rent— Goods  prlTlleged 

from — Defendants  let  to  a  tenant  certain  prem- 
ises, the  upper  portion  of  which  was  used  as  an 
inn  or  hotel  for  farmers,  and  a  part  of  the  lower 
flat  provided  with  stalls  for  the  lodgers  in  which 
to  sell  produce  to  all  buyers.  Plaintiff  occupied 
a  stall  in  which,  along  with  goods  brought  there 
by  himself,  he  offered  for  sale  a  quantity  of 
apples  bought  in  this  same  market  or  outside. 
The  apples  were  seized  under  a  distress  for  rent 
due  defendants  by  their  tenant,  and  plaintiff 
replevied,  claiming  that  tlie  goods  were  privi- 
leged from  distress,  being  in  a  public  market  for 
sale.  The  County  Court  Judge  held  that  the 
goods  were  so  privileged. 

Held,  that  the  exemption  could  not  l)e  claimed 
on  the  ground  set  up  in  this  defence,  as  plaintiff 
was  not  using  the  premises  as  a  market,  but 
simply  as  a  shop  in  which  to  offer,  in  the  ordi- 
nary way,  goods  purchased  to  be  sold  for  a  profit. 
Be7U  v.  McDotujall  e<  o^.,  2  R.  &  G.,  468  ; 
2  C.  L.  T.,  262. 

6.  Distress— Notice  of  sale  under— Deren< 

dant  made  a  distress  upon  plaintiff  for  rent 
lawfully  due,  but  did  not  give  him  the  five  days' 
notice  of  the  sale  of  the  goods  distrained  pre- 
scrilied  by  statute. 

Held,  that  he  was  a  trespasser  ab  initio  and 
liable  in  damages. 

Comelim  v.  Burton,  3  N.  S.  D.,  337. 

7.  Distress— Warrant  of— Sale  under— 

A  constable  seized  a  horse  under  a  warrant  of 
distress,  and  endeavored  to  sell  the  same  before 
the  return  day  of  the  warrant,  but  was  prevent- 
ed from  doing  so  chiefly  by  the  party  from  whom 
the  horse  was  taken.  Subsequently  to  the  re- 
turn day  the  constable  sold  the  horse. 
Held,  that  the  sale  was  valid. 

Wheaton  v.  Franchemtle,  2  N.  S.  D.,  288. 

8.  ETidence  of  relation  of  landlord  and 

tenant  —  Estoppel  —  Plaintiffs'  testator,  C.  C, 
took  a  conveyance  of  land  from  M.  P.  M. ,  pay- 
ing £100  for  the  land,  at  the  request  of  defend- 
ants, J.  L.  and  R.  L.,  who  had  previously  occu- 
pied and  continued  to  occupy  the  land.    Plain- 


827 


LANDLORD  AND  TENANT. 


828 


tiffs  having  brought  an  action  of  ejectment  to 
recover  the  land  from  the  defendants,  produced 
two  witnessea,  who  swore  that  defendants  had 
paid  money  to  and  worked  for  C.  C,  in  payment 
of  rent ;  while  one  of  the  defendants,  J.  L., 
swore  that  defendants  never  paid  rent,  but 
interest,  and  that  they  were  to  repay  the  £100 
to  C.  C,  but  that  no  time  for  repayment  was 
fixed. 

Held,  by  the  Court,  acting  under  a  rule  nisi 
to  set  aside  a  verdict  taken  by  consent,  with  the 
power  of  a  jury  to  draw  inferences  from  the 
facts,  that  the  relation  of  landlord  and  tenant 
existed  between  C.  C.  and  the  defendants  J.  L. 
and  R.  L.,  and  that  consequently  they  were 
estopped  from  disputing  his  title. 

Crow  et  al.  v.  Loicden  et  al.,2'R.  &  C,  78. 

9.  ETlction  —  Acts  not  anttaorlted  by 

landlord,  held  not  to  constitute  eviction — 
In  an  action  for  rent  of  land  of  which  the  de- 
fendant entered  into  possession  under  a  tender 
made  to  Her  Majesty's  Principal  Secretary  of 
State  for  War,  defendant  contended  that  he  had 
been  evicted,  first  by  a  lease  made  of  part  of  the 
premises  to  the  Directors  of  Point  Pleasant  Park 
and  by  permission  given  by  the  Colonel  of  the 
Engineers  to  the  French  Cable  Co.  to  erect  a 
building  on  part  of  the  demised  premises.  The 
lease  referred  to  was  made  subject  to  existing 
leases,  and  it  did  not  appear  that  the  Colonel  of 
the  Engineers  had  authority  to  give  the  per- 
mission complained  of.  Accordingly  the  judg- 
ment of  the  County  Court  was  for  plaintiff. 

ffeld,  that  the  judgment  was  rightly  given 
for  plaintiff  on  the  grounds  taken,  and  that  it 
was  too  late  on  appeal  to  take  the  ground  not 
taken  in  the  Court  l)elow  that  the  action  should 
have  been  in  the  name  of  the  Secretary  of  War 

as  plaintiff. 

Quet7i  v.  Miller,  4  R.  &  G.,  361. 

10.  Fixtures— Removal  of— Damages  for— 

In  an  action  by  plaintiff  to  recover  damages  for 
the  removal  of  fixtures  from  property  of  the 
plaintiff,  occupied  by  defendant  as  a  tenant,  the 
latter  relied  on  a  bill  of  sale  from  Q.,  a  former 
tenant,  by  whom  the  fixtures  had  been  placed 
upon  the  premises,  and  under  whom  the  defend- 
ant had  gone  in. 

The  term  for  which  Q.  held  having  expired 
before  the  removal  of  the  fixtures. 

Held,  that  plaintiff  must  recover,  and  that  the 
judgment  for  the  defendant  must  be  set  aside. 

Judgment  having  been  given  for  defendant  on 

a  former  trial,  judgment  was  now  entered  for 

plaintiff,  rather  than  send  the  case  back  again. 

Harrison  v.  Smith,  7  R.  &  G.,  516  ; 

8C.  L.  T.,58. 


11.  Fixtures  —  Trade  fixtures  —  PlaintUT 

let  to  the  defendant  a  dwelling  house  for  the 
term  of  five  years,  with  privilege  of  renewing, 
under  a  written  lease,  in  which  defendant  cove- 
nanted to  surrender  the  premises  in  as  good 
condition  as  reasonable  wear  and  use  would 
permit,  and  the  plaintiff  agreed  to  permit  the 
defendant  to  remove  the  lower  front  room  win- 
dows, lower  the  floor,  substitute  a  shop  front, 
and  make  such  alterations  as  he  might  re<|uire 
for  the  completion  of  a  shop.  Defendant  made 
the  alterations,  and  at  the  end  of  the  term  quitted 
the  premises,  having  removed  the  counters  and 
shelving  and  a  lead  pipe  and  sink.  The  Judge 
of  the  County  Court  decided  that  the  defendant 
had  a  right  to  remove  these  articles  as  trade 
fixtures,  and  plaintiff  appealed  on  the  ground 
that  the  decision  was  against  law  and  evidence. 

The  rule  for  appeal  was  taken  Dec.  3,  1879, 
and  on  Dec.  14,  1880,  defendant  moved  for  leave 
to  amend  the  grounds  so  as  to  raise  the  question 
as  to  the  right  to  remove  these  articles  as 
fixtures. 

Held,  that  the  amendment  could  not  be  al- 
lowed, and  that  the  judgment  below  was  correct. 

Per  McDonald,  J. — That  the  question  as  to 
the  right  to  remove  the  articles  was  one  of  fact, 
upon  which  the  determination  of  the  County 
Court  Judge  could  not  be  disturbed  unless  upon 
an  overwhelming  preponderance  of  evidence. 

Per  Weatherbe,  J.  —  That  the  Judge  had 
rightly  determined  that  the  articles  were  fix- 
tures, which  the  tenant  had  a  right  to  remove, 
and  this  was  the  point  upon  which  the  ciue 

turned. 

Laidlaw  v.  Taylor,  2  R.  &  G.,  155. 

12.  Lease— Not  forfeited  by  couTeyanice 

in  fee — Plaintiff  made  a  lease  for  lives.  The 
lessee  conveyed  to  tlie  defendant  in  fee  simple 
and  afterwards  assigned  to  liini  the  lease. 
Defendant  paid  rent  to  the  plaintiff  both  Ijefore 
and  after  action  of  ejectment  brought  by  plain- 
tiff. In  this  action  plaintiff  relied  on  the  for- 
feiture of  the  lease  by  the  making  of  the  deed 
in  fee  simple,  but  it  appeared  that  plaintiff  was 
not  aware  of  this  fact  until  after  action  brought. 
The  Judge  recommended  a  non-suit  which  was 
accordingly  entered,  but  the  Court  set  it  aside, 
as  there  was  some  evidence  that  plaintiff  had 
treated  defendant  as  a  yearly  tenant,  and  not 
merely  as  holding  under  the  lease. 

Per  James,  J. — That  the  conveyance  in  fee  did 
not  create  a  forfeiture. 

Berry  v.  Berry,  4  R.  &  G.,  66; 
LeCain  v.  Wieland,  4  R.  &  G.,  71,  ». 

18.    Lease  —  Verbal   agreement    fl>r  - 

Statute  of  fVands— Aathority  of  wife  to  con- 


829 


LANDLORD  AND  TENANT. 


830 


^i^ct — Yearly  value  of  tenancy — Defendant's 
wife  entered  into  an  agreement  to  lease  from 
plainti£f  a  portion  of  a  house,  at  a  stipulated 
rental,  for  the  period  of  one  year,  the  tenancy 
to  commence  on  the  1st  May,  1885.  At  the 
time  the  agreement  was  entered  into  the  prem- 
ises were  in  the  occupation  of  a  third  party, 
wlio  remained  in  posseesion  for  a  day  or  two 
after  the  Ist  May,  and  before  the  date  on  which 
defendant's  tenancy  was  to  commence,  defendant 
told  plaintiff  that  he  could  not  move  in  on 
iccount  of  his  wife's  illness,  but  that  he  would 
make  good  any  loss  plaintiff  might  sustain  in 
consequence. 

Hdd,  per  McDonald,  C.  J.,  that  there  was  a 
lease  or  estate  at  will  created  between  the  par- 
ties wliich  would  enable  the  plaintiff  to  recover 
the  quarter's  rent,  though  there  might  be  duubt 
whether  it  would  support  a  promise  to  compen- 
Eute  him  for  any  loss  he  might  sustain  in  re- 
letting the  premises. 

AUo,  Ritchie,  J.  concurriiuj,  that  the  point 
that  the  lease  was  bad,  the  rent  reserved  not 
having  been  proved  to  be  two- thirds  the  annual 
value  of  the  property,  was  not  open  to  defend- 
ant, not  having  been  taken  in  the  Court  below. 
Per  McDonald,  J.  Smith,  J.,  concurring, 
that  there  was  no  proof  of  authority  to  defend- 
ant's wife  to  make  the  contract,  and  that  the 
promise  by  defendant  to  pay  any  loss  incurred 
in  re-letting  the  premises  was  not  a  sufficient 
ratification  to  turn  the  agreement  into  a  lease. 

Alxo,  that,  assuming  the  wife's  authority  to 
be  proved,  there  was,  at  most,  an  agreement  for 
a  lease. 

Also,  that  the  omission  to  prove  the  propor- 
tion of  the  rent  reserved  to  the  yearly  value  of 
the  property  was  fatal  to  plaintiff's  case. 

Power  v.  Griffin,  20  N.  S.  R, 
(8R.  &G.),  52. 

14.  Lien  for  rent— Sec.  7  of  chap.  107, 

Revised  statutes  (4th  series),  providing  that  no 
goods  sliall  be  removed  from  the  premises  under 
execution,  until  one  year's  rent  or  a  ratable 
part  thereof  be  paid  to  the  landlord,  does  not 
apply  to  goods  taken  under  attachment  under 
the  Absconding  Debtor's  Act. 

Miller  v.  Ling,  4  R.  &  G.,  135. 
But  see  5th  R.  S.,  c.  125,  s,  14,  which  corres- 
ponds with  4th  R.  S.,  c.  107,  s.  7.      The  word 
"attachment "  has  been  there  specially  inserted. 

15.  Mesne  proflts— Non-Joinder  of  tenant 

in  common  aa  plaintiff  in  action  for  use  and 
occupation— J.  H.  and  C.  H.  were  tenants  in 
common  of  an  undivided  parcel  of  real  estate. 
Plaintia  bought  C.  H's  interest  under  a  judgment 


duly  recorded  against  him.  C.  H.  and  his 
widow  after  his  death  remained  in  possession  of 
the  land,  and  some  time  afterward  plaintiff 
brought  an  action  for  use  and  occupation  adding 
a  count  for  mesne  profits.  No  contract  express  or 
implied  between  plaintiff  and  the  widow  of  C.  H. 
was  proved. 

Held,  that  no  action  would  lie  for  use  and 
occupation,  the  widow  occupying  adversely;  that 
no  action  would  lie  for  mesne  profits  as  there 
had  been  no  previous  recovery  in  ejectment  by 
plaintiff ;  and  that  even  if  a  contract  had  been 
proved  to  sustain  use  and  occupation  the  non- 
joinder  of  J.  H.,  as  plaintiff,  was  fatal  to  the 
action  as  brought. 

LeCain  v.  Hoaterman,  2  R.  &  C,  229. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,   1.     An  action  of  trespass  for  mesne 
profits  is  consequential  to  the  recovery  in  eject- 
ment. 

2.  Even  if  such  an  action  would  lie  under 
some  circumstances  without  ejectment  brought, 
the  plaintiff  could  not  recover  without  satisfac- 
tory evidence  of  actual  entry  and  possession. 

3.  After  entry  there  is  a  relation  back  to  the 
actual  title  as  against  a  wrong-doer,  and  an 
action  may  be  maintained  for  trespass  prior  to. 
such  entry. 

But  in  this  case,  besides  a  deficiency  of  evi- 
dence of  entry,  there  was  some  evidence  that 
the  defendant  remained  in  possession  subsequent 
to  the  12th  August,  1873,  the  day  the  plaintiff'a 
title  accrued,  with   the  assent  of  the  plaintiff. 

Strong,  J.,  doubt imj. 

4.  In  any  event  the  action  for  mesne  profits 
would  not  lie,  the  defendant  having  been  pre- 
vious to  the  I2th  August,  1 873,  in  possession  with 
the  consent  of  J.  H. ,  the  co-tenant  in  common^ 
and  being,  therefore,  entitled  to  a  notice  to  quit, 

I  or  demand  of  possession,  before  her  possession 
could  be  considered  tortious. 
LtCain  v.  Hosterman,  2Sth  January,  1S78, 

Cas.  Digest,  504. 

16.  Notice  to  quit— Notice  by  tenant  to 

quit  in  April  next,  the  tenancy  actually  termi- 
nating on  the  8th  of  the  month,  and  served 
three  months  before  the  actual  termination, 
Htld,  sufficient. 

Broim  v.  Boole,  1  Thorn.,  (1st  Ed.),  108; 

(2nd  Ed.),  137. 

17.  Notice  to  quit— Tenancy  at  Increased 

rent — The  following  written  notice  was  served 
on  a  tenant  on  the  1st  February,  1864  :  "Dart- 
mouth, Feb.  I,  1864.  Mrs.  L.  will  please  take 
notice   that  the   rent  of   the    house  she  now 


831 


LANDLORD  AND  TENANT. 


832 


occupies  will  be  twenty-five  pounds  per  annum, 
commencing  May  1,  1864.  Respectfully,  P.  F." 
The  tenant  had  previously  paid  a  rent  of  £20  a 
year  for  the  house.  At  the  time  the  tenant  was 
served  with  this  notice,  she  said  that  she  would 
not  pay  that  rent ;  that  she  would  give  up  the 
house.  The  landlord  subsequently  told  her  that 
if  she  would  not  keep  the  house,  it  was  let,  to 
wliich  she  replied  that  she  certainly  would  not 
keep  it. 

Held,  that  the  notice  was  not,  even  under  all 
these  circumstances,  a  notice  to  quit. 

The  fact  of  a  tenant  remaining  in  the  house 
after  receiving  such  notice,  does  not  prove  a 
tenancy  at  the  increased  rent,  although  she 
stated  while  she  so  remained  and  admitted 
by  one  of  her  pleas  and  at  the  trial  that  she 
actually  occupied  half  the  house  under  an  alleged 
agreement  to  pay  half  the  increased  rent,  which 
agreement,  however,  the  jury  found  not  to  be 
proved. 

Ladd  v.  Elliott  et  (d.,  1  Old.,  703. 

IS.    Notice   to  quit  — Where  an  official 

person  occupies  a  house  merely  in  virtue  of  his 
office,  when  he  ceases  to  hold  the  office  his  right 
to  the  possession  of  the  house  expires  and  he  is 
not  entitled  to  notice  to  quit. 

Lessee  of  Bigelow  et  al.  v.  Xorton, 

2  Thorn.,  283. 

19.  Possession  under  oral  agreement  for 

lease — A  person  in  possession  of  land  under  an 
oral  agreement  for  a  lease  has  against  all  others 
than  the  owner  the  right  to  do  all  things  which 
the  owner  could  do  to  enable  him  to  have  the 
full  enjoyment  of  the  property. 

McMidlen  v.  Kendrick  e<  a/.,  5  R.  &  G.,  308. 

20.  Repairs  — landlord  undertaking  to 

make,  without  notice  to  tenant  —  Damages 
— Plaintifif  was  tenant  of  a  shop  in  a  building 
owned  by  defendant,  the  upper  portion  of  which 
was  occupied  by  other  tenants.  It  having 
become  necessary  to  make  certain  repairs  to  the 
roof  of  the  building,  a  portion  of  the  roof  was 
removed  at  defendant's  instance  without  notice 
to  plaintiff.  Owing  to  the  negligent  manner  in 
which  the  work  was  done,  rain  fell  into  the 
building  and  ran  through  and  injured  the  plain- 
tiff's goods. 

Held,  that  the  work  was  done  by  defendant 
at  his  own  risk,  and  that  he  was  responsible  to 
the  plaintiff  for  the  injuries  sustained  by  her  in 
consequence  of  the  damage  to  her  goods. 

Semble,  there  being  a  count  in  which  such  a 
claim  was  made,  that  it  might  properly  have 
been  left  to  the  jury  to  ascertain  the  damage 


sustained  by  plaintiff  in  consequence  of  tiie 
breaking  up  of  her  establishment  and  the  loss  of 
her  business. 

Ervjlet/  V.  Mcllreith,  3  N.  S.  D.,  511. 

21.  Bight  to  distrain  lost  when  goods 
removed  by  landlord  under  other  claim  than 
for  rent — Defendant,  with  a  view  of  securing 
§50  rent  due  to  him  by  one  Scott,  purchased  a 
lot  of  furniture  from  the  wife  of  Scott,  in  iiia 
absence,  and  removed  it  to  his  own  premises. 
Previous  to  this  Scott  had  given  plaintiffs,  from 
whom  he  had  purchased  the  goods,  a  chattel 
mortgage  on  them  as  security  for  the  price. 
Plaintiffs  having  demanded  the  goods  from 
defendant,  who  refused  to  give  them  up  except 
on  payment  of  $50,  brought  an  action  of  trover 
to  which  defendant  pleaded  setting  up  a  lieu  for 
rent  and  a  distraint  on  the  goods  after  tiieir 
removal  to  his  own  house. 

Held,  the  right  to  distrain  ceased  upon  the 
removal  of  the  goods  from  the  demised  premises 
to  defendant's  house. 

Fraser  et  al.  v.  McFatridije,  1  R.  &  G.,  28. 

22.  Tenancy  at  will— When  entitled  to 

demand  of  possession  before  ejectment  — 
Where  the  defendant  goes  into  possession  of  laud 
as  tenant  at  will  under  a  third  party,  but  upon 
the  invitation  and  with  the  concurrence  of  lessor 
of  plaintiff,  he  is  entitled  to  a  demand  of  posses- 
sion before  he  can  be  ejected. 

Lesxee  of  McKinnon  v.  McDonald,  James,  7- 

23.  Tenancy  by  the  curtesy— Conveyance  of 

— The  purchaser  of  a  tenancy  by  the  curtesy  is 
not  estopped,  by  accepting  a  conveyance,  from 
disputing  the  existence  of  that  estate  as  against 
the  heir  of  the  deceased  wife,  but  the  acceptance 
of  the  conveyance,  unless  explained  by  oilier 
testimony,  is  a  very  strong  admission  of  the 
existence  of  the  estate  which  it  professes  to 
convey,  and  of  the  title  of  the  heirs  after  the 
termination  of  that  estate. 

Lessee  of  Archibald  v.  Blois,  James,  307. 

24.  Tenancy,  determination  of— Surreii' 

der  by  re-letting  premises— Defendant,  being  a 
yearly  tenant  left  before  the  end  of  his  term,  and 
plaintiff  re-let  the  premises  to  another.  Plaintiff 
then  sought  to  recover  rent  from  defendant  for 
one  of  the  quarters  of  the  unexpired  portion  of 
the  term,  giving  credit  for  the  amount  received 
from  the  tenant  to  whom  he  had  re-let.  There 
was  no  evidence  or  finding  of  a  consent  or 
request  from  the  defendant  to  the  plaintiff  to 
re-let. 
Held,  that  the  plaintiff  could  not  recover. 

Matthias  v.  Pace,  3  R.  &  G.,  366. 


833 


LEASE. 


834 


i5.   Tenant's  flxtures— Removal  after  ex- 

pirj-  of  term  by  party  holding  bill  of  sale- 
Action  by  landlord— Judgment  for  defendant 
reversed  — In  an  action  by  plaintiff  to  recover 
damages  for  the  removal  of  fixtures  from  prop- 
erty of  the  plaintiff,  occupied  by  defendant  as 
tenant,  the  latter  relied  on  a  bill  of  sale  from 
Q,,  a  former  tenant,  by  whom  tlie  fixtures  had 
been  placed  upon  tlie  premises  and  under  wlioni 
defendant  had  gone  in. 

Tlie  term  for  which  Q.  held  having  expired 
liefore  the  removal  of  the  fixtures, 

ffddt  that  plaintiff  must  recover,  and  that 
judgment  for  defendant  must  be  set  aside. 

Judgment  having  been  given  for  defendant  on 
a  fiirnier  trial,  judgment  was  now  entered  for 
plaintiff  rather  than  send  the  case  back  again. 

Harrison  v.  Smith,  7  R.  &  O.,  516 ; 
8C.  L.  T.,58. 

26.   Use  and  occupation— Action  for  does 

not  lie  against  pai  ty  who  goes  into  possession 
under  contract  which  fails — Where  a  vendor 
lets  a  vendee  into  possession  of  lands  on  a  con- 
tract whicli  afterwards  goes  off,  he  camiot  re- 
cover for  use  and  occupation. 

Temple  el  al.  v.  McDonald,  2  Old.,  1.55. 

'21.   Yearly  tenancy  —Evidence  of— Plain- 

tiff  testitied  that  defendant  entered  his  premises 
as  a  yearly  tenant  at  £9<)  a  year,  anil  that  there 
never  was  any  agreement  that  he  was  to  be  a 
monthly  tenant.  Defendant  testified  that  the 
premises  were  engaged  verbally  at  §30  per 
month.  Defendant  also  put  in  evidence  two 
receipted  accounts  from  plaintiff,  one  for  one 
month's  rent  of  office  from  1st  November  to  1st 
December,  1871,  S30,  and  another  for  four  and 
a  ijiuirter  months'  rent. 

Hdd,  that  the  evidence  so  largely  prepon- 
derated in  favor  of  defendant  in  the  absence  of 
explanations  b-,  the  plaintiff  of  these  accounts, 
that  the  verdict  for  tlie  plaintiff'  must  be  set 
aside. 

Ritchie,  E.  J.,  and  Wilkins,  J.  disHentimj. 

O'Ntil  V.  Wells,  2  R.  &  C,  205. 

2S.   Yearly  tenancy  —  Payment  of  rent 

(juartcrly  is  net  conclusive  evidence  of  a  yearly 
tenancy. 

//alliburton  v,  Molloy,  James,  246. 


lABCENT- 
See  CRIMINAL  LAW. 


LAW  STUDENT. 


Filing  articles— Tbe  Court  reftased  to  allow 

a  law  student's  articles  of  apprenticeship  to  be 
filed,  nunc  pro  tunc,  where  they  had  not  been 
filed  at  the  time  of  their  execution. 

In  re  Application  of  Weeks,  2  R.  &  C,  383. 


LEASE. 


1.  Covenant  for  quiet  enjoyment— Oefen* 

dant  demised  to  the  plaintiffs  for  a  certain 
period  a  mill  and  mill  machinery  with  a  water 
privilege,  the  water  power  to  be  of  the  same 
extent  as  that  enjoyed  by  the  then  lessee  of  the 
mill,  the  lease  containing  a  covenant  for  quiet 
enjoyment.  The  evidence  showed  that  a  water 
privilege  to  the  extent  provided  for  had  not 
been  actually  enjoyed  by  the  plaintiffs,  and  that 
injury  and  loss  had  resulted  from  the  deficiency, 
which  was  due  to  acts  either  of  defendant  him- 
self or  of  the  .S.  M.  Co.,  his  tenant. 

Held,  that  the  plaintiffs  were  entitled  to  re- 
cover, the  defendant  having  failed  to  show  that 
the  deficiency  of  water  power  was  occasioned  by 
causes  that  reiidered  it  impossible  for  him  to 
perform  the  covenant  in  question. 

Parke'-  el  al.  v.  Fairbanks,  1  R.  &  C,  215. 

2.  Lease  made  in  foreign  country— Re- 

moval  of  property  leased,  contrary  to  agree- 
I  ment— Bills  of  Sale  Act,  5th  R.  S.,  c.  92,  s.  3, 
I  not    applicable    to    foreign    contracts  —  The 
'  plaintiff  company  leased  a  sewing  machine  to 
;  McH.  at  Belfast,  Maine,  taking  a  bill  of  sale  by 
way  of  security.     The  lease  was  made  upon  a 
j  written  undertaking  that  the  machine  was  not 
!  to  be  removed  from  the  house  in  which  it  was 
\  placed  without  the  written  consent  of  the  com- 
pany,     McB.  subsequently  removed  to  Truro, 
N.  S.,  takinj^  the  machine  without  having  ob- 
tained such  written  consent,  and  pledged  it  at 
Truro  to  the  defendant. 

Plaintiff  having  brought  an  action  claiming 
the  return  of  the  machine  and  damages  for  its 
detention,  the  ground  was  taken  that  the  plain- 
tiff's bill  of  sale  had  not  been  registered  in  this 
Province  in  compliance  with  the  requirements 
of  5th  Revised  .Statutes,  c.  92,  s,  3. 

Htld,  that  the  provisions  of  the  Act  relied  on 
were  not  applicable  to  a  bill  of  sale  made  be- 
tween parties  and  in  respect  to  a  subject  matter 
out  of  the  Province. 

Also,  that  the  removal  of  the  machine  to  this 
Province  without  the  plaintiff's  consent  was  an 
act  of  trespass,  which  precluded  any  subsequent 


835 


LIBEL. 


836 


dealings  with  it  on  the  part  of  the  lessee  from 
affecting  the  plaintiff's  right. 

Singer  Sewing  Machine  Co.  v.  McLeod, 

20  N.  S.  R.,  (8R.  &G.),  341; 
9  C.  L.  T.,  60. 


3.   or  mining  areas— 


4.   Beglstratton  of— 


See  MINING  LAW. 


'S'ee  DEED,  33. 

5.   Verbal  agreement  for- 

See  LANDLORD  AND  TENANT,  13. 


LEAYE  AND  LICENSE- 
^ee  TBESPAS8. 


LEGACY. 

1.  Action  at  common  law  lor— 

Held,  that  an  action  would  lie  at  common 
law  against  one  of  the  executors  of  a  will  con- 
taining the  following  bequest :  "I  give  and 
bequeath  to  my  wife  Elizabeth,  a  decent,  suitable 
and  comfortable  maintenance,  to  be  furnished 
and  provided  for  her  by  my  son,  Elisha  Ells,  as 
hereinafter  directed,"  and  a  subsequent  bequest 
and  devise  of  all  residue,  of  personal  and  real 
estate  to  Elisha,  charged  with  that  bequest. 
Elisha  and  Jonathan  Ells  were  appointed  execu- 
tors.    Action  against  Elisha. 

An  action  for  a  certain  legacy  can  be  main- 
tained in  common  law  courts,  against  any 
person,  who,  under  a  will,  is  made  liable  to  pay 
such  legacy,  and  receives  under  such  will  funds 
sufficient  to  pay  it.  See  5th  R.  S.,  c.  113,  a.  4. 
Ella  V.  Ells,  1  Thom.,  (2ud  Ed.),  173. 

2.  Liability  of  real  estate  to  pay— The 

real  estate  of  a  testator  is  not  liable  for  the 
payment  of  legacies,  unless  it  is  manifest  from 
the  will  that  such  was  the  testator's  intention. 

Construction  of  the  Probate  Act  (Chapter  130 

Rev.  Stats.  (2nd  series),  sees.  13  and  18,  settled. 

In  re  Estate  of  McKay,  1  Old.,  131. 


LEGAL  TENDER. 
By  the  terms  of  a  lease  of  property  situate 

in  Nova  Scotia,  it  was  provided  that  certain  pay- 
ments should  be  made  periodically  in  "dollars 


and  cents  of  United  States  currency."  After  the 
execution  of  the  lease,  the  Congress  of  the 
United  States  passed  a  law  authorizing  an  issue 
of  Treasury  Notes,  not  bearing  interest,  and 
provided  that  they  "shall  be  lawful  money  and 
a  legal  tender  in  payment  of  all  debts  public  and 
private  within  the  United  States,  except  in  pay- 
ment of  duties  on  imports  and  interest  on  United 
States  bonds  or  notes." 

JTeld,  that  the  tender  of  United  States  treas- 
ury notes,  issued  under  this  Act,  was  not  a  legal 
and  sufficient  tender  of  the  payments  due  under 
the  lease. 

Nova  Scotia  Telegraph  Co.  v.  American 

Telegraph  Co.,  1  Old.,  426. 


LEGISLATITE  AUTHOBITT- 
See  BBITISH  NOBTH  AMEBIGA  ACT. 


LEVY. 


1.  Levy  and  appraisement— From  what 

time  levy  effectual — When  the  appraisement 
shows  that  the  appraisers  were  sworn,  and  the 
Sheriff's  return  refers  to  the  appraisers'  warrant, 
the  swearing  of  the  appraisers  sufficiently  ap- 
pears. 

"  Service  on  the  agent  of  process  to  appear," 
in  8.  26,  c.  97,  R.  S.,  (4th  series),  means  service 
on  the  company's  agent  of  process  requiring  the 
company  to  appear.  Levy  under  the  attachment 
under  that  chapter  may  be  made  before  service 
on  the  agent.  The  levy  is  effectual  from  the 
time  of  seizure  of  the  property,  and  not  merely 
after  appraisement  and  selection  of  the  property 
to  be  held  to  respond  the  judgment. 

The  Merchants'  Bank  v.  The  Steel  Company 
of  Canada  (Limited),  5  R.  &  G.,  258. 

2.  What  necessary  to  constitute  -  To 

constitute  a  levy,  the  officer  must  do  some  act 
to  enable  him  to  deliver  possession  of  the  pro- 
perty to  the  purchaser. 

See  EXECUTION,  22. 

Fraser  v.  Jenkins,  20  N.  S.  R.,  (8  R.  &  G.),  494. 
See,  also,  EIEtUTION,  20-24. 


LIBEL- 
See  DEFAMATION. 


837 


LIEN. 


838 


IICENSE- 

1.  Licensing  Insurance  Companies— Val- 
idity of  Act  of  Local  Legislature  authorizing 
impoBition  of  license — 

See  BRITISH  NOBTH  AMERICA  ACT,  10. 

2.  License  Law -"Agreements'*  does  not 

include  "account  stated" — Provincial  Act  of 
1863,  c.  17,  not  retrospective — The  Provincial 
Act  of  1863  ch.  17,  sec.  8,  which  provides  that 
"accounts  stated"  shall  be  included  among  the 
securities  made  void  by  the  16th  section  of 
chapter  22  of  the  Revised  Statutes  (2nd  series), 
does  not  extend  to  actions  commenced  before  its 


The  word  "ogreements"  in  the  last  named 
section  does  not  include  "account  stated." 

Smyth  V.  McNeil,  2  Old.,  75. 

3.  License  Law  relating  to  sale  of  Intoxi* 

eating  liquors — Procedure  under — 

^66  CERTIORARI- 

JVSTICES  OF  THE  PEACE. 

4.  License  to  sell  real  estate  of  deceased— 

-S^ee  PROBATE  COURT. 

5.  License  —  Parol  revocation- Plaintiff 

derived  title  to  a  mill  through  his  father, 
who,  forty-five  years  before  action,  cut  a  canal 
through  the  land,  which  at  time  of  action  be- 
longed to  the  defendant,  and  through  which  canal 
the  water  flowed  to  the  mill  until  nineteen 
years  before  action,  when  B.,  the  then  owner 
of  the  land,  gave  verbal  permission  to  the 
plamtiif  to  cut  a  new  canal  in  substitution  of 
the  old  one,  and  though  he  gave  no  express 
leave  to  the  plaintiff  to  make  a  dam  on  said 
land,  did  not  object  to  it  when  made.  The 
plaintifiF,  shortly  after  the  permission  thus  given 
cut  the  new  canal,  which  was  200  yards  north 
of  the  old  one,  and  erected  the  dam.  Defendant 
derived  title  under  B.,  and  there  were  no  reser- 
vations in  any  of  the  deeds.  Ten  years  after 
this,  and  after  he  had  been  privy  to  the  plaintiff 
repairing  the  dam,  defendant  abated  it,  without 
tendering  to  plaintiff  the  expense  of  its  erection. 
Held,  that  the  permission  thus  given  for  the 
cutting  of  the  new  canal,  and  the  erection  of  the 
dam, not  being  under  seal,  was  to  be  accounted 
only  a  parol  license,  revocable  at  any  time,  and 
that  the  defendant  might  lawfully  abate  the 
dam,  and,  ;)€r  Dodd,  J.,  that  the  conveyance  to 
defendant  was  a  revocation. 

Bipley  v.  Baker,  1  Old.,  23. 


6.  Party  acting  nnder,  must  conform 

strictly  to  it — A  party  acting  under  a  license 
must  conform  to  it,  and  if  the  act  done  be  not 
fully  covered  by  the  license,  the  party  commit- 
ting it  is  responsible. 

Dickie  v.  Spanh,  1  N.  S.  D.,  446. 

7.  Qnalifled  license— Defendant  bailt  a 

stone  wall  between  his  land  and  that  of  the 
plaintiff,  of  which  three  feet  at  the  bottom  and 
one  foot  nine  inches  at  the  top,  were  on  plaintiff's 
property.  At  the  time  the  wall  was  erected 
plaintiff  said  to  defendant's  builder  :  "  You're 
building  on  my  land  ;"  he  said  further,  that  he 
had  no  objections,  but  "I  caution  you  that  in 
the  case  of  my  selling,  the  purchaser  may  put 
you  to  trouble. " 

ffeld,  that  this  was  a  qualified  license  justi- 
fying the  erection  of  the  wall  but  going  no 
further. 

Peters  v.  Frecker,  3  N.  S.  D.,  67. 

8.  Revocable- Defendant  made  and  de- 

livered  to  plaintiff  a  memorandum,  not  under 
seal,  in  the  following  terms  :  "I  do  hereby 
agree  to  lease  to  you,  William  Hendry,  the 
privilege  of  light  in  the  west  side  of  your  build- 
ing, Ac,  for  the  term  of  ten  years  from  this 
date,  at  a  yearly  rent  of  twenty-five  cents  per 
annum." 

Held,  that  the  memorandum  constituted  a 

mere  license,  revocable  at  defendant's  pleasure. 

Hendry  v.  Scott,  3  N.  S.  D.,  215. 


LIEN. 


1.  Crown— Hen  of,  upon  real  estate  of 

certain  public  officers  —  Imperial  Statutes — 
The  Statutes  of  33  Hen,  8,  c.  39,  and  13  Eliz.,  c. 
4,  which  gave  the  Crown  a  lien  upon  the  real 
estate  of  certain  public  officers  as  a  security  for 
the  fulfilment  of  their  bonds,  are  not  in  force  in 
this  Province. 

Uniacke  v.  Dickson  et  al.,  James,  287. 

2.  Destroyed  by  tender— Defendant  con> 

tracted  with  the  plaintiff  to  make  and  iron  a 
track  sulky,  for  a  price  agreed  upon. 

On  completion  of  the  work  defendant  tendered 
the  amount  agreed  upon,  but  plaintiff  refused 
to  accept  it  or  deliver  the  sulky  unless  he  was 
paid  a  larger  amount.  Defendant  thereupon 
broke  open  plaintiff's  workshop  and  removed 
the  carriage. 

ffeld,  inter  alia,  that  the  tender  destroyed 
plaintiff's  lien. 

Willis  V.  Sweet,  20  N.  S.  R.,  (8  R.  &  G.),  449; 

9C.  L.  T.,232. 


839 


LIEN. 


840 


3.  Mortgagee  of  ungranted  lands  applied 

for  has  a  lien  on  the  lota  granted  on  such  ap- 
plication, although  different  from  those  indi- 
cated in  application  —  Thomas  and  John 
Arcliibald  nirn-tgaged  to  plaintiff  two  third  parts 
of  several  lots  of  ungranted  Crown  lands  applied 
for  and  paid  for  hy  K.  and  others,  the  riglit 
to  receive  whicli  was  by  them  transferred  to  the 
.St.  C-roix  Manufacturing  Company,  said  Archi- 
balds having  become  interested  therein  to  the 
extent  of  two  third  parts. 

Before  the  grants  were  taken  out  the  Archi- 
balds became  insolvent,  and  defendants,  as  trus- 
tees for  the  creditors,  jjrocured  said  grants  of 
land  based  on  the  original  application,  Init  they 
selected  the  lots  in  localities  somewluit  different 
from  those  indicated  in  sucli  application. 

Held,  that  plaintiff  had  a  lien  on  two  thirds 
of  the  land  comprised  in  the  grants  for  tlie  debt 
intended  to  be  secured  l)y  tlie  mortgage,  and 
that  an  order  must  pass  that  tlie  amount  thereof 
should  be  paid  to  him,  otherwise  said  two  tliirds 
of  the  land  to  be  sold  to  satisfy  plaintiff's  claim. 
Stephenn  v.  Twiiiiii<j  tt  al.,  R.  E.  D.,  170. 

4.  None  upon  goods  of  the  Sovereign— 

The  goods  of  the  Sovereign  cannot  be  detained 
under  a  claim  of  lien. 

A  defendant  cannot  plead  double  or  several 
matters  in  tlie  case  of  the  Crown. 

The  Queen  can  bring  replevin  under  4th  R.  S. 

c  94  sec.  329. 

'       '         Queen  v.  Fmscr,  1  R.  &  C,  431. 

5.  Of  Judgment  on  after  acquired  pro* 

perty — 

Set  JUDGMENT,  24  and  33. 

6.  Of  master  for  wages— The  tUct  that  the 

master  has  accepted  a  promissory  note  from  two 

co-owners  in  the  vessel  for  watjes  due  him,  which 

note  was  not  paid,  does  not  take  away  his  lien 

although  the  vessel  has  been  sold  to  a  bona  fide 

purchaser. 

The  Aura,  Y.  A.  U.,  54. 


7.   Of  master  ui.on  ship— 


See  SHIPPING. 


8.    Of  solicitor  for  costs- 


See  ATTOBNET. 


9.   Rent— lien  not  created,  before  rent 

due,  by  insolvency  of  tenant — Distraint — 
Until  rent  falls  due  the  landlord  has  no  lien  on 
property  on  the  premises.  On  sale  and  removal 
of  such  property  the  landlord  cannot  look  to  it 
for  payment  of  rent  which  subsequently  accrues 
due.    The  only  right  which  the  landlord  has  is 


to  distrain  on  whatever  property  is  found  on  tlie 
premises  at  the  time  tiie  rent  falls  due.  Tiiere 
is  no  obligation  on  anycme  to  keep  the  property 
on  the  premises  till  the  rent  falls  due  to  erahle 
the  landlord  to  distrain  on  it.  No  lien  is  tre- 
ated under  the  Insolvent  Act,  1875,  in  favor  nf 
the  landlord  for  rent  not  due  at  the  time  of 
insolvency. 

In  rt  O'Midlin  A  Johnstone,  R.  K.  D,,  b", 

10.  Vendor's  lien  on  land,  for  unpaid 

purchase  money— S.   l*.  bought  land  from  H, 

F.,  and  paid  for  it,  but  did  not  take  a  deiMl  of 
;  it.     .Subsetjuently  S.  P.  agreed  to  sell  to  M.  C, 

Sr.,  but  by  agreement  among  the  parties  tlie 
]  deed  was  made  out  to  M.  C.,  Jr.  S.  1'.  was 
'  never  paid  for  the  land,  but  took  notes  fmrn 
!  M.  C,  Sr.,  wiiich  he  subseiiuently  assigned  ;iiiJ 

indorseil  to  the  father  of  J.  1*. 

Hild,  in  an  action  of  ejectment  brougiit  forty 

years  afterwards  against  J.  1'.,  who  claimed  tliu 

land  by  virtue  of  an  assumed  lien,  that  no  lien 
:  ever  existed  in  8.  P.,  as  he  never  had  a  title, 
t  and  that  even  if  tiiere  bad  been  a  lien,  and  even 
;  if  it  could  have  been  transferred  by  the  indorse- 

ment  of  the  notes  from  8.  P.  to  the  father  of 
!  J.  P. ,  it  would  not  pass  to  J.  P. ,  but  to  the  execii- 
1  tors  of  his  father. 

Mewjher  et  al.  v.  Paidin  tl  al.,  I  R.  &  C,  79. 

11.  Vendor's  lien  on  land-Surrender  of- 

Defendants,  husband  and  wife,  purciiased  from 
plaintilf  a  house  and  land,  and  a  large  portion  of 
i  the  purchase  money  arising  from  funds  to  wliicli 
j  the  wife  had  been  entitled  in  her  own  right,  a 
j  deed  was  executed  by  plaintiff  to  the  wife's 
brothers  in  trust  fc  •  her,  and,  by  a  bond  of  the 
same  date,  both  husband  and  wife  bound  them- 
selves to  the  plaintiff  for  the  payment  of  the 
balance  unpaid  of  the  purchase  money.  A 
!  further  sum  was  afterwards  paid  on  account,  iinJ 
subsecjuently  plaintiff  recovered  judgment  against 
the  husband  for  the  balance  still  unpaid,  hut 
issued  no  execution  thereon,  as  the  defendant 
was  insolvent.  The  Plaintiff  then  sought  to 
establish  his  lien  upon  the  land  for  what  was 
still  due  of  tlie  purchase  money.  The  defendants 
pleaded  that  it  was  fully  understood  between  all 
parties  at  the  execution  of  the  deed  that  plain- 
tiff was  to  be  satisfied  with  the  bond  and  not  to 
retain  his  equitable  lien,  and  that  it  was  upon  this 
express  understanding  that  the  wife  advanced 
the  money  out  of  her  private  estate.  Tlie  jury 
having  found  in  favor  of  the  defendants  on  the 
issue  thus  raised, 

Held,  that  the  plaintiff  must  be  considered  to 
have  surrendered  his  lien,  and  that  the  verdict 
for  defendants  should  be  confirmed. 

Broim  V.  Chesley  et  al.,  1  N.  S.  D.,  315. 


S41 


LIMITATION  OF  ACTIONS  AND  SUITS. 


842 


12.   Waiver  of  lien— Defendants,  in  an 

action  of  replevin  for  fish  claimed  to  have  a  lien 
for  storage  anil  wharfajje.  A  waiver  of  the  lien 
was  pleaded  and  plaintiff  swore  that  when  he 
tirst  presented  an  order  for  the  fish  to  defendants, 
(k'fcndftuts  claimed  only  storage.  It  appeared, 
however,  that  when  plaintiff  first  disposed  of 
part  of  the  fish,  defendants'  claimed  both  storage 
and  wliarfagc,  and  refused  to  deliver  any  of  the 
tish  until  the  claim  was  paid.  On  th3  same  day 
plaintiff  wrote  to  defendants  that  ' '  he  presumed 
tiie  amount  for  storage  and  wharfage  was  cor- 
rect and  be  enclosed  a  cheque  for  the  amount." 
Plaintiff  testified  that  this  amount  was  paid 
iiniler  protest. 

Held,  that  defendants  could  not  be  precluded 
from  showing  that  their  lien  remained,  and  that 
the  verdict  for  plaintiff  must  be  set  aside. 

Latcson  v.  Corbett  eC  al.,  2  R.  &  G.,  32*2; 
2  C.  L.  T.,  94. 


13.  Watcbmaker  — Lien  for  repairs— A 

chronometer  was  left  by  the  plaintiff  witii  the 
(lefciidant  a  chronometer  and  watch  maker  and 
repairer  in  Halifax,  with  instructions  as  sworn 
to  liy  defendant  to  put  the  instrument  in  order. 
Defendant  on  examining  it,  found  that  it  requir- 
ed repairs  of  such  a  nature  that  he  was  obliged 
to  scud  it  to  Boston  to  have  it  made  right. 
Plaintiff  refused  to  pay  the  amount  charged  by 
tile  15oston  mechanic,  and,  on  the  defendant's 
refusal  to  deliver  up  the  instrument,  brought  an 
action  of  trover.  On  the  trial  plaintiff  stated 
that  he  had  not  ordered  any  repairs  to  be  made 
beyond  polishing,  &c.,  for  the  price  of  which  an 
ample  tender  made  before  action  was  proved. 
The  jury  found  for  defendant  stating  that  they 
accepted  his  version  of  the  instructions  given 
when  the  instrument  was  left  with  him. 

He/d,  that  the  defendant  had  a  lien  for  the 
cliarge  made  by  the  Boston  mechanic,  and  was 
justified  in  refusing  to  deliver  up  the  instrument 
until  the  bill  was  paid. 

Wilkins  J.,  ditmentiwj. 

Webber  v.  Cogsivell,  2  R.  &  C,  47. 

On  appeal  to  the  Supreme  Court  oj  Canada, 

Held,  affirming  the  judgment  below,  that  the 
rule  nisi  for  a  now  trial  should  be  discharged, 
and,  as  no  fault  was  found  with  the  work  done, 
the  respondent  had  a  lien  until  he  was  paid  his 
charges. 

Webber  v.  Cogswell,  2  S.  C.  R.,  15. 

14.  Wliarfage— Lien  for— Tender— Plain> 

tiff  sued  for  damages  for  the  unlawful  detention 
of  certain  lumber ;  defendant  pleaded  a  lien  for 


wharfage  and  plaintiff  replied  a  tender  of  an 
amount  sufficient  to  cover  the  defendant's  claim. 

It  was  contended  that  the  latter  plea  was 
insufiScient,  as  there  was  no  payment  into  court 
to  satisfy  the  dabt  in  respect  of  which  the  lien 
was  claimed. 

Held,  that  the  lien  was  discharged  by  the 
tender. 

Davinon  v.  Mulcahy,  7  R.  &  G.,  209  ; 
7  C.  L.  T.,  324. 


LIMITATION  OF  ACTIONS  AND  SUITS. 

1.  Aclinowledgment  —  Tlie  acltnowledg- 

ment,  in  reference  to  a  debt  due  by  the  firm,  of 
one  partner  after  the  partnership  has  been  dis- 
solved is  sufficient  to  prevent  the  operation  of 
the  Statute  of  Limitations. 

Bank  of  Nova  Scotia  v.  Haliburton, 

James,  350. 

2.  Aclinowledgment  —  Wlien  a  deed  of 

land  is  given  for  the  balance  of  an  account,  the 
deed  will  not  be  an  acknowledgment  in  writing, 
nor  will  it  operate  as  a  part  payment. 

McKeen  v.  McDowjhU,  2  Thorn.,  403. 

3.  Aclinowledgment  by  payment— What 

necessary  —  When  a  payment  is  made,  but 
nothing  is  said  at  the  time  respecting  any  bal- 
ance, such  payment  will  not  be  a  part  payment 
to  take  the  case  out  of  the  Statute  of  Limita- 
tions. 

McKeen  v.  McDougall,  2  Thorn.,  403. 

4.  Acknowledgment  in  bar— Where  a 

party,  in  answer  to  an  application  for  payment 
of  certain  notes,  said,  "  if  he  must  pay  the  notes 
he  would  if  he  had  time  given  him." 

Held,  not  to  be  a  suflScient  acknowledgment 
to  take  the  case  out  of  the  Statute. 

Billinys  v.  Rwtl,  1  Thom.,  (1st  Ed.),  61 ; 

(2nd  Ed.),  88. 

5.  Acknowledgment- Where  to  an  appii. 

cation  for  payment  of  a  note,  defendant  said, 
"  I  have  had  considerable  dealings  with  plaintiff, 
and  if,  upon  those  dealings,  there  is  anything 
due  him,  I  am  willing  to  pay  him;"  it  was  held 
not  suflScient  to  take  the  case  out  of  the  Statute. 
Keys  v.  Pollok;  1  Thom.,  (1st  Ed.),  81  ; 
(2nd  Ed.),  109. 

6.  Acknowledgment  in  bar— Simple  con* 

tract  debts — What  sufficient — Defendant  made 
a  note  of  hand  to  S.  which  was  indorsed  to  plain- 
tiff who  received  payments  on  account  of  it  from 


843 


LIMITATION  OF  ACTIONS  AND  SUITS. 


844 


time  to  time  from  the  indorser.  Defendant 
made  no  payments,  but  after  six  years  from  the 
date  of  the  note,  made  a  new  note  to  plaintiff  for 
the  balai  'e  due  on  the  original  note,  the  stamp 
on  which  taring  date  identical  with  the  date 
of  the  note,  was  for  the  single  duty  and  was 
affixed  by  plaintiff  on  the  day  subsequent  to  the 
delivery  of  the  note  to  him. 

Held,  that  the  stamping  was  insufficient,  and 
that  the  note  could  not  be  received  on  the  trial 
as  an  acknowledgment  to  take  the  case  out  of  the 
Statute  of  Limitations,  that  the  payments  by  the 
indorser  did  not  inure  to  prevent  the  operation 
of  the  Statute  aa  against  the  maker,  and  that  the 
mere  striking  of  a  balance  as  between  the  parties 
did  not  constitute  an  account  stated  to  take  the 
case  out  of  the  Statute. 

McFatridge  v.  Hunter,  3  R.  &  C,  289. 

7.  Acknowledgment  to  take  case  oat  of 

Statute — Proof  of  a  promise  to  pay  as  "  soon  as 
possible  "  is  not  suiUcient  to  take  a  case  out  of 
the  Statute  of  Limitations   without  proof    of 
defendant's  ability  to  pay. 
Hi^Iiburton,  J.  dis-ienling. 

Murdoch  v.  Pitts,  James,  238. 

8.  Acknowledgment    to   take   out   of 

Statute — Where,  in  a  settlement  of  accounts 
between  plaintiff  and  defendant,  the  former  took 
as  part  payment  an  order  drawn  by  the  latter 
upon  a  third  party,  which  was  not  accepted  by 
him,  but  by  his  son,  who  made  payments  under 
it, 

Held,  not  to  be  sufficient  payment  by  the 
defendant  to  take  the  case  out  of  the  Statute  of 
Limitations. 

Symth  V.  McDonald,  Cochran,  86. 

9.   Action  for  non-delirery  of  policy— 

When  right  of  action  accrues  —  Plaintiffs 
insured  a  vessel  in  the  office  of  defendants  on 
Oct.  27th,  1863,  by  means  of  the  usual  application 
slip  leaving  the  broker  to  fill  up  the  policy  in  the 
usual  way.  On  the  .3l8t  October  the  directors  of 
defendant  company  made  an  entry  in  their 
record  book  in  the  following  words  "not  allowed 
under  the  policy  to  proceed  to  any  port  in  South 
Greenland,"  which  they  inserted  in  plaintiffs' 
policy.  The  policy  was  not  delivered  to  plain- 
tiffs till  the  first  of  June,  1866.  The  first  inti- 
mation plaintiffs  had  of  this  new  condition  was 
a  notice  served  upon  them  on  the  12th  June, 
1866,  after  the  vessel  had  sailed  to  a  port  in 
South  Greenland.  The  vessel  was  lost  on  the 
12th  August,  1866,  aud  proof  of  loss  exhibited  on 
the  22nd  Sept.,  1866.  Plaintiffs  brought  action 
on  the  policy  on  the  20th  Sept. ,  1872,  with  added 
counts  for  the  non-delivery  of  a  policy  in  accord- 


ance with  the  original  contract.  Defendants 
pleaded  the  Statute  of  Limitations  to  these 
added  counts. 

Held,  that  as  the  action  for  breach  of  contract 
would  have  lain  after  the  delivery  of  the  policy 
in  June,  1866,  and  before  the  loss,  it  was  barred 
by  the  Statute. 

Kohertnon  et  al.  v,  Lovett  et  al., 

2  R.  &  C,  250. 

10.  Actions  on  policies  of  Insurance- 
Condition  in  policy  limiting  time  for  bringing 
action — 

See  INSUBAJfCE. 

11.  Adrerse  possession  of  a  widow, 

centui  que  trwt,  as  against  the  tnistees,  will 
inure  for  the  benefit  of  her  children,  being  alao 
cestuin  que  Irustenl,  and  cannot  be  set  up  against 
their  title. 

Lessee  o/  Archibald  v.  Blois,  James,  307. 

12.  Adverse  possession— W.,  under  whom 

defendant  claimed,  entered  into  possession  of  a 
lot  of  land  in  1834,  under  a  judgment  recovered 
against  T.  in  an  action  of  ejectment,  and  con- 
tinued in  possession  for  a  period  of  thirty  years. 
In  1846,  T.  conveyed  to  the  plaintiff,  who  in  tiie 
following  year  went  upon  the  land  and  had  it 
surveyed. 

Held,  per  Johnstone,  E.  J.,  Dodd,  J.,  and 
Ritchie,  J.,  that  the  entry  and  survey  by  the 
plaintiff  were  not  a  sufficient  interruption  of  tlie 
adverse  possession  of  W.  to  prevent  the  opera- 
tion of  the  Statute  of  Limitations. 

Per  Ritchie,  J.,  Sir  W.  Young,  G.  J.,  douhting, 
T.  having  lieen  out  of  possession  and  W.  in  pos- 
session under  his  judgment  when  the  former 
made  his  deed  to  the  plaintiff,  no  title  passed 
under  it. 

Sir  W.  Young,  C.  J.,  while  concurring  with 
the  majority  of  the  Court  as  to  defendant's 
possessory  title,  reviewed  the  conflicting  docu- 
mentary titles  of  the  plaintiff  and  defendant  at 
length,  and  referred  fully  to  the  township  grants 
in  which  the  property  in  dispute  was  inclutleJ. 
He  was  of  opinion,  under  all  the  circumstauues, 
that  there  should  be  a  new  trial.  VVilkiiis,  J., 
was  also  of  opinion  that  there  should  be  a  new 
trial. 

DesBarren  et  al.  \.  Shey,  2  N.  S.  D.,  327. 

On  appeal  to  the  Privy  Council, 

The  plaintiff  and  the  defendant  set  up  rival 
claims  to  lands  under  two  separate  streams  of 
title,  each  derived  from  a  distinct  grant  from  the 
Crown.  The  plaintiff^s  grant  was  in  1768,  and 
the  title  from  that  point  was  perfect ;  but  the 
only  material  act  of  ownership  on  which  he  relied 


845 


LIMITATION  OF  ACTIONS  AND  SUITS. 


846 


was  an  entry  upon  part  of  the  lands  in  1832  by 
T,,  against  whom  a  judgment  in  ejectment  was 
afterwards  given,  and  who  thereupon  relinguish- 
ed  possession.  The  defendant's  grant  (which 
the  plaintiff  questioned  as  void  for  uncertainty) 
was  in  1761.  The  title  was  in  some  respects  de- 
fective, but  under  it  there  had  been  continuous 
possession  since  1805,  uninterrupted  except  by 
the  act  of  T. 

Hi^ld,  that  even  supposing  the  grant  of  1761 
bad  for  uncertainty,  the  evidence  of  possession 
under  the  defendant's  title  was  sufficient  to  raise 
A  presumption  of  a  valid  grant. 

HM,  cUao,  that  the  ejectment  recovered 
against  T.  and  his  subsequent  giving  up  posses- 
sion  were  evidence  of  adverse  possession  by  the 
defendant  sufficient  to  bar  the  plaintiff's  title 
under  the  Statute  of  Limitations  (Acts  1866, 
cap.  12).  Technical  desseisin  of  the  claimant  is 
not  necessary  to  create  adverse  possession  ;  for 
poasesainn  is  adverse,  for  the  purpose  of  limita- 
tion, where  an  actual  possession  is  found  to  exist 
under  circumstances  which  evince  its  incompati- 
bility with  a  freehold  in  the  claimant. 

In  a  case  in  which  the  facts  and  law  appear  to 
be  entirely  one  way,  their  Lordships  will  make 
the  presumptions  which  should  properly  be  made 
by  a  jury,  without  sending  the  case  down  for  a 
new  trial. 

DesBarrea  et  al.  v.  Shey,  28  L.  T.,  592  ; 
22  \V.  R.,  27.*J. 

Set,  also,  EJECTMENT-TRESPASS. 

13.  Cause  of  action  arising  in  Ireland 

six  years  before  action  —  Action  brought 
within  six  years  after  arrival  here — Where 
an  action  was  brought  in  February,  1874,  and 
tried  in  November,  1874,  to  recover  certain 
sums  of  money  alleged  to  have  been  advanced 
by  the  plaintiff  while  residing  in  Ireland,  to  and 
on  account  of  the  defendant,  more  than  six 
years  before  action  brought  in  this  country. 

ffeld,  that  the  debt  was  barred  by  the  Stat- 
ute of  Limitations,  notwithstanding  the  action 
was  brought  within  six  years  after  the  plaintiff's 
arrival  in  this  country. 

Johmton  v.  Johnston,  1  R.  &  C,  128. 

14.  Claim  barred  by  the  Statute— Plaintiff 

brought  action  in  1873  to  enforce  payment  of 
?400  and  interest  for  land  alleged  to  have  been 
purchased  by  defendant,  the  deed  being  made 
out  to  defendant's  brother  and  left  with  a  third 
party,  to  be  delivered  to  defendant  on  his  htmd- 
ing  him  a  note  for  the  purchase  money  signed  by 
himself  and  his  brother.  Defendant,  in  his  an- 
swer, contradicted  all  the  statements  in  the  writ 
and  set  out  that  the  sale  was  made  directly  to 


his  brother,  though  he  admitted  that  he  would 
have  assisted  him  by  joining  in  a  note  for  the 
purchase  money.  The  evidence  was  contiicting 
but  the  alleged  agreement  having  been  made  in 
1866,  the  Court  held  that  the  delay  ic  suing  was 
itself  a  bar  to  the  action,  if,  as  plaintiff  conten- 
ded,  the  agreement  was  to  be  considered  as  the 
original  undertaking  of  the  defendant,  while  on 
the  other  hand  if  it  was  to  be  viewed  as  a 
guarantee,  the  Statute  of  Frauds  as  well  as  the 
Statute  of  Limitations,  prevented  a  recovery. 

IVattrman  v.  mU,  R.  E.  D.,  197. 

15.  Claim  in  InsolTency— A  claim  less 

than  six  years  old  at  the  date  of  a  writ  of  attach- 
ment is  not  barred  by  the  Statute  of  Limitations, 
because  the  six  years  expire  before  the  declara- 
tion of  a  dividend. 

In  re  Leake  tfc  Laidlaw,  Insolvents, 

3R.  &C.,484. 

16.  Claim  of  assignee  of  equity  of  redemp* 

tion  not  barred  by  twenty  years'  possesaion  of 
aaaignor  who  claims  under  mortgagor  —  The 
claim  of  an  assignee  of  the  equity  of  redemption 
in  mortgage  premises,  for  surplus  proceeds 
remaining  after  the  sale  of  premises  on  fore- 
closure of  the  mortgage,  is  not  barred  by  a 
twenty  years'  possession  of  the  premises  by  the 
assignor,  who  claims  under  the  mortgagor,  the 
mortgagee  having  by  the  foreclosure  suit 
asserted  a  paramount  claim  to  the  possession, 
and  the  premises  being  sold  under  that  claim. 
Collins  v.  Reid  etal.,2  Old.,  252. 

17.  Construction  of  Statute— Accretion— 

The  Statute  of  Limitations  should  not  be  so 
construed  as  to  protect  or  be  a  means  of  fraud. 

The  plaintiff  exchanged  mud  flats  not  capable 
uf  actual  occupation  for  sedge  banks  bearing 
grass,  into  which  plaintiff  entered  and  retained 
possession  for  25  years,  no  conveyances  being 
executed  on  either  side  and,  subsequently,  as  the 
mud  flats  became  productive  by  accretion  the 
plaintiff  entered  and  took  grass  from  them  also, 
at  the  same  time  claiming  title  by  possession  to 
the  sedge  banks. 

ffeld,  that  if  the  exchange  was  completed  by 
a  mutual  surrender  of  the  lands,  there  was 
mutual  adverse  possession,  but  if  not,  the  parties 
held  permissively  from  each  other  and  the 
Statute  of  Limitations  could  not  apply. 

Held,  also,  that  the  fact  of  such  surrender 
being  made  is  a  question  for  the  jury. 

Forsyth  v.  Griffin,  James,  241. 

18.  Debt  barred  by  Statute  of  Limitations 

— No  judgment  for,  against  absent  debtor  per- 
mitted—  The   Court  will  not  allow  judgment 


847 


LIMITATION  OF  ACTIONS  AND  SUITS. 


848 


to  be  entered  up  against  an  absent  debtor  for  a 
debt  barred  by  the  (Statute  of  Liinitutioni. 
Wilkins,  J.  disHtnting. 

Smith  V.  Cvff,  2  Thorn.,  12. 


19.   Reason  fbr  rule  In  aboTe— 

Ptr  Ualiburton,  J.— "As  the  Statute  of  Lim- 
itations to  be  taken  advantage  of  must  be 
pleaded,  and  in  this  form  of  action,  there  being 
no  defendant  in  Court  to  plead,  it  is  the  duty  of 
the  Court  to  confine  the  plaintiff  to  proof  that  is 
not  affected  by  the  Statute  of  Limitations." 

McRae  v.  Woodward,  3  Murd.  Epit.,  141. 


20.   Disability  — RemoTal  of-R.  M.,  in 

1835,  conveyed  a  portion  of  his  land  to  his  sons 
W.  &  K. ,  and  about  the  same  time  allowed  them 
to  enter  into  possession  as  tenants  at  will  of  the 
balance  of  his  property  including  the  house  in 
which  he  had  resided.  R.  M.  died  in  1844 
leaving  several  children  of  whom  plaintiff  was 
the  youngest.  In  1847,  the  rest  of  the  heirs 
iuoluding  plaintiff,  who  was  then  under  age, 
conveyed  to  W.  &  K.  all  their  interest  in  the 
property.  In  1870  the  plaintiff  brought  suit  for 
a  portion  of  the  land  in  question  alleging  that 
the  deed  being  executed  during  her  minority 
was  absolutely  void  and  of  no  effect. 

Held,  that  although  the  possession  of  W.  and 
K.  must  be  deemed  to  be  adverse  U  nm  the  year 
1847,  when  the  heirs  united  in  giving  them  a 
deed,  and  that  therefore  plaintiff's  right  was 
barred  on  that  ground,  yet  that  under  section 
9  of  29  Vic. ,  chap.  12,  having  brought  her  action 
in  1870  and  therefore  within  five  years  from 
1 866,  she  was  entitled  to  recover. 

McKinnon  et  ux  v.  Brodie,  3  N.  S.  D.,  410. 


21.    Foreclosure  suit  brought  over  twenty 

years  after  mortgage  given  —  Recovery  in 
ejectment  meantime — Foreclosure  not  barred 
by  Statute — Allan  McKay  conveyed  property 
to  plaintiff  by  a  deed,  absolute  in  its  terms  but 
admitted  to  have  been  given  as  a  security  for  a 
debt.  Nothing  was  paid  on  account  of  principal 
or  interest  by  the  mortgagor  or  his  heirs,  for  a 
period  of  over  twenty  years  before  suit  to  fore- 
close, but  within  that  period  an  action  of  eject- 
ment had  been  brought  to  recover  possession,  in 
which  a  judgment  was  obtained,  a  record  filed, 
and  a  writ  of  hab.  /ac.  pas.  issued  but  not 
executed. 

Held,  that  these  proceedings  prevented  the 
Statute  of  Limitations  from  operating  except 
from  the  judgment. 

McKeen  v.  McKay,  R.  E.  D.,  121. 


29.   lex  ftorl-Plaintlff;  a  resident  of  this 

Province,  sued  defendant,  who  carried  on  IhihI. 
nnsB  in  Newfoundland,  for  a  debt  contracted 
there  in  1849,  A  suit  had  Insen  commenced  for 
the  recovery  of  the  debt  in  Newfoundland,  but 
the  defendant  had  obtained  a  certiticutu  of 
bankruptcy,  which  by  the  law  of  that  Colony,  is 
a  bar  to  all  suits  brought  there  for  debts  con- 
tracted within  the  Colony.  In  1855  the  defend- 
ant  promised  to  pay  the  plaintiff  £50  in  thut 
summer,  and  the  rest  by  instalments,  but  no 
payment  was  made.  The  Statute  of  Limitations 
was  pleaded,  to  which  there  was  no  replication, 
Per  Curiam. — We  think  judgment  ouglit  to 
be  entered  for  the  plaintiff. 

Smith  v.  Stewart  et  al.,  2  Thorn.,  417. 

28.    Lex  fori  governs  — Plaintiff  sued  on 

four  bills  of  exchange  drawn  by  himself  at  (lliis- 
gow,  Scotland,  in  18.S6and  18.37,  upon  the  defen- 
dant, accepted  payable  four  months  after  date, 
at  the  defendant's  shop  in  Glasgow.  PlaintifTs 
right  of  action  was  barred  in  Scotland  by  12 
Geo.  3,  c.  72.  He  was  not  in  Nova  Scotia  when 
his  right  of  action  accrued,  but  came  for  the 
first  time  to  Nova  Scotia  within  six  years  of  the 
day  of  the  commencement  of  this  action. 

Held,  that  12  Geo.  3,  c.  72,  does  not  extinguish 
the  debt,  but  the  remedy  only  and  that  there- 
fore plaintiff  could  maintain  his  action  here, 

Bri/son  v.  Graham,  2  Thorn.,  271. 

24.  lex  fori  governs— Plaintiff  sued  for 

goods  sold  and  delivered.  Defendant  pleaded 
the  Statute  of  Limitations.  Plaintiff  replied 
that  at  the  time  tho  action  accrued  defendant 
was  absent  from  the  Province,  and  that  suit  was 
brought  when  defendant  came  within  the  juris- 
diction of  the  Court.  Defendant  demurred. 
The  cause  of  action  had  accrued  in  Prince  Ed- 
ward Island,  and  it  seemed  that  according  to 
the  laws  of  that  Province  the  debt  was  barred 
by  the  Statutes,  but  was  not  barred  by  the 
Statutes  of  Nova  Scotia. 

Held,  that  admitting  the  debt  to  be  out  of 
date  in  Prince  Edward  Island,  the  plaintiff 
might  nevertheless  recover  in  Nova  Scotia,  as 
only  the  plaintiff's  remedy  was  thereby  barreil, 
and  the  debt  was  not  extinguished. 

Carvell  et  al.  v.  Wallace,  3  N.  S.  D.,  165. 

25.  limitations,  Statute  of— 1866,  c.  13, 

8.  9— Omission  of  in  4th  R.  S.— Plaintiffs'  tes- 
tator took  a  deed  from  the  father  of  defendants 
in  1846,  but  the  grantor  continued  in  possession 
until  his  death,  and  his  children  after  him  down 
to  the  time  of  action  brought  in  1869. 
Held,  that  the  Statute  of  Limitations  was  a 


m 


MAGISTRATES. 


860 


bnr  to  the  action  of  ejectment,  and  that  section 
0  nf  the  Act  of  1860,  cap.  12,  giving  parties  five 
years  after  the  passing  of  that  Act  to  bring  action 
notwithstanding  the  expiration  of  twenty  years, 
did  not  apply,  having  ceased  to  exist  and  been 
oniittfd  in  4th  R.  8.,  which  came  into  operation 
in  May,  1H74. 

Pattermn  ft  al.  v,  McPhenon  et  al., 

1  R.  &C.,  116. 

26.   N.  S.  Railway  Act  of  1880,  c.  26- 

Limitation  therein  cannot  be  extended  to 
breach  of  contract — Plaintiff  delivoied  a  plan- 
ing machine  to  defendants  to  be  carried  between 
two  stations.  In  placing  it  on  board  the  oar  for 
tlint  purpose,  defendants'  servants  injured  the 
machine  by  negligence  or  want  of  proper  appli- 
ances, and  plaintiff  brought  action  for  damages. 
Held,  that  this  was  not  a  suit  "for  indemnity 
for  any  damage  or  injury  sustained  by  reason  of 
the  railway,"  under  sec.  26  of  the  N.  S.  Railway 
Act  of  1880. 

Whitman  v.  The  Western  Counties  By.  Co., 

5R.  &C1.,  405. 

it.  Pleading  — The  debt  sued  fbr  was 

contracted  in  1849  ;  in  1853  defendants  promised 
to  pay.  Defendants  pleaded  the  Statute  of 
Limitations  and  there  was  no  replication. 

Per  Bliss,  J. — If  a  party  does  not  reply  to  a 
plea,  he  takes  issue  upon  it ;  but  when  there  is 
a  new  plea  to  be  given  in  evidence,  there  must 
be  a  replication. 

Smith  V.  Stewart  et  al.,  2  Thorn.,  417. 

28.   Wild  lands— Possession  of- A  party 

claiming  wild  lands  under  a  deed  and  having 
actual  possession  of  a  part,  has  a  sufficient  con- 
structive possession  of  the  whole  land  described 
in  his  deed,  to  bring  him  within  the  Statute  of 
Limitations. 

A  person  who  has  paid  consideration  and 
occupied  for  twenty  years  without  a  deed  obtains 
title  by  possession,  otherwise  if  consideration  was 
nor  paid. 

Lessee  of  Cunard  v.  Irvine,  James,  31. 


LIQUIDATED  DAHAGES- 
See  CONTRACT,  12. 


LIS  PENDENS. 
Notice  of,  as  affecting  title— Plaintiffs  par* 

chased  from  W.  M.  a  quantity  of  hay,  described 
to  be  growing  on  a  tract  of  land  specified.    The 


hay  when  cut  was  deposited,  by  permission  of 
W.  M.,  in  a  barn  on  the  premises.  At  the  time 
of  the  purchase  a  law  suit  in  reference  to  the 
ownership  of  the  land  was  depending  between 
W.  M.  and  the  defendant.  One  of  the  plaintiffs 
knew  of  the  suit,  and  the  other  that  the  title 
was  disputed.  A  verdict  having  been  found  for 
the  plaint'ffs  a  rule  was  taken  out  for  a  new 
trial  which,  it  appearing  on  argument  that  the 
defendant  had  a  clear  legal  title  and  possession 
in  law,  was  made  absolute  with  costs. 

McDonald  et  al.  v.  Brodie,  2  N.  8.  D.,  402. 


LOAN  SOCIEIT- 
See  BUILDING  SOCIET. 


LUNATIC. 

1.    Prisoners  acquitted  on  ground   of 

lunacy— Custody   of—It  is  the  duty  of    the 

Executive  Government  of  the  Province  to  assume 

the  custody  and  care  of  persons  acquitted  of 

criminal  charges  upon  the  ground  of  insanity, 

which  by  the  common  law  of  England  is  vested 

in  the  Crown. 

Queen  v.  Martin,  James,  322. 

1.  Salt  by  guardian  of,  In  his  own  name- 
In  an  action  by,  and  in  the  name  of  the  guardian 
of  a  lunatic,  for  a  debt  due  tht  lunatic,  the  de- 
fendant did  not  go  into  his  defence,  contending 
that  the  action  was  wrongly  brought,  and  judg- 
ment in  the  County  Court  was  given  for  plaintiff. 
On  appeal,  the  Court  allowed  plaintiff  to  amend, 
and,  defendant  contending  that  there  was  a. 
defence  on  the  merits,  a  new  trial  was  ordered, 
but  without  costs,  first  because  the  new  trial 
was  an  indulgence  to  defendant,  as  the  Court 
might  in  such  a  case  give  judgment  for  the 
plaintiff  on  the  amended  record  ;  secondly,  be- 
cause, had  the  defendant  entered  on  his  defence 
in  the  Court  below,  a  new  trial  would  possibly 
have  been  rendered  unnecessary  by  his  success. 
Seaman  v.  Pwter,  4  R.  &  G.,  292  &  495. 


MAGI8TRATES- 
•.^ee  JUSTICES  OF  THE  PEACE. 


851 


MANDAMUS. 


862 


MiI5TENANCE  AND  CHAMTEBTT. 

Tlie  doctrine  of  maintenance  and  cham- 
perty are  largely  modified  by  the  modern  cases. 
Allan  et  al.  v.  McE.'ffey,  1  Old.,  120. 


MillCIOVS  ABBEST- 
See  ABBEST. 


MALICIOVS  INJUBT  TO  PBOPEBTT- 
Stt  CBIMINAL  LAW,  19. 


MANDAMUS. 

1.    Dismissal  of  a  Professor— Powers  of 

the  Board  of  Governors — Powers  of  the  visi- 
tor— An  application  was  made  for  a  mandamus 
to  compel  the  governors  of  King's  College, 
Windsor,  to  restore  W.  E.  W.  a  professor  of 
the  College,  to  certain  offices  from  which  he  had 
been  dismissed  for  having  published  in  a  public 
newspaper,  a  letter  "incompatible  with  the 
relation  of  a  professor  to  the  governing  body, 
and  the  superior  officers  of  the  university  and 
manifesting  a  contempt  of  authority  likely  to 
lead  to  subversion  of  discipline,"  &c.  The  college 
was  incorporated  under  an  Act  of  the  Legislature 
of  Nova  Scotia  in  1789,  and  a  charter  was  ob- 
tained from  the  Crown.  Thirteen  years  later 
letters  patent  were  issued  by  the  Crown,  appoint- 
ing the  Bishop  of  Nova  Scotia  visitor  of  the 
college.  In  1853  a  Provincial  Act  was  passed 
repealing  the  former  Act  and  re-appointing  and 
re-incorporating  the  Board  of  Governors,  giving 
them  power  to  make  laws  and  ordinances  for  the 
regulation  and  management  of  the  college,  and 
providing  that  the  Bishop  of  Nova  Scotia,  for 
the  time  being,  should  be  tx  officio  a  Governor 
of  the  college,  President  of  the  Board,  and 
visitor. 

By  the  original  Act  an  annual  charge  was 
made  upon  the  revenue  of  the  Province  for  the 
purpose  of  purchasing  lands  and  erecting  build- 
ings, and  certain  public  officials  were  made  ex 
officio  members  of  the  Board  of  Governors. 

No  notice  was  given  to  the  professor  of  the 
proceedings  which  terminated  in  the  sentence  of 
removal. 

The  affidavit  upon  which  the  application  for 
mandamus  was  made  wes  headed  "  In  the  mat- 
ter of  an  application  intended  to  be  made  to  the 
Supreme  Court  for  a  mandamus,"  etc., 


Held,  per  Thompson  and  Rigby,  JJ.,  and 
McDonald,  C.  J.,  that  the  mandamus  should 
issue ;  that  the  professor  was  entitled  to  notice ; 
that  the  College  being  a  public  corporation  estab- 
lished by  public  Statute,  and  t.  visitor  being 
deprived  of  the  power  to  dismiss,  the  wide  range 
of  powers  incident  to  the  office  of  visitor  at 
common  law  were  not  conferred  upon  him,  and 
the  Court  therefore  had  power  to  hear  the 
motion  ;  that  the  office  of  professor  was  one  in 
relation  to  which  mandamus  would  lie.  AUo, 
that  the  heading  of  the  affidavit  upon  which  the 
application  was  made  was  mere  matter  of  de- 
scription, and  was  distinguishable  from  the 
heading  of  the  affidavit  in  In  re  Peier  Rom, 
2R.  &C.,596. 

VVcatherbe  and  McDonald,  JJ.,  dissented  on 
the  ground  that  the  sole  appeal  from  the  decision 
of  the  board  was  to  the  visitor,  and  the  latter 
on  the  further  ground  that  the  heading  of  the 
affidavit  was  bad. 

Re  Wilson,  6  B..  &G.,  180; 
6  C.  L.  T.,  447. 

a.   Contract  with  City  of  Halifax— Besola- 

tion  of  City  Council — Mandamus  to  compel 
Mayor  to  carry  out  the  resolution— Plaintiff 
oflFered  to  the  City  a  site  on  Lockman  Street  for 
a  City  hall,  to  be  erected  under  Act  of  1874,  cap. 
35,  for  $35,000,  payable  in  City  debentures. 
The  City  Council  resolved  to  accept  the  offer, 
and  that  the  Mayor  be  authorized  "to  have 
debentures  issued  "  for  the  purchase  of  the  site, 
and  that  on  the  necessary  documents  being  com- 
pleted, such  debentures  be  handed  over  to  plr.'j)- 
tiflf,  a  copy  of  the  resolution  being  enclosed  to 
the  plain tiflf  by  the  City  Clerk,  but  without  any 
instructions  or  directions  to  that  eflPect  from  the 
Mayor  or  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  had  made 
arrangements  so  as  to  be  ready  to  have  the 
property  transferred  when  the  Mayor  should 
perform  his  duty,  and  he  tendered  to  the  Mayor 
an  imexecuted  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  contract 
a  document  under  the  seal  of  the  corporation 
was  necessary ;  that  even  had  the  agreement 
beon  formal  and  binding,  plaintiff  had  not  a  right 
to  require  the  Mayor  to  carry  out  the  resolution 


853 


MANDAMUS. 


854 


of  the  Council  until  ho  had  first  secured  a  title 
to  the  lands  to  enable  him  to  perform  hia  part  of 
the  agreement. 

Jennett  v.  Sinclair,  1  R.  &  C,  392. 


3.  Demurrer  to  return— Preliminary  ob< 

jection,  that  by  the  practice  of  the  Supreme 
Court  of  Nova  Scotia  there  can  be  no  demurrer 
to  a  writ  of  mandamus,  overruled. 

Queen  v.  The,  Warden  and  Toion  Council 

of  Dartmouth,  5  R.  &  G.,  311. 


See  ASSESSMENT,  VI.  4,  5  &  6. 


4.  Discretion  ofCourt— A  mandamus  was 

applied  for  at  the  instance  of  the  Sessions  for  the 
County  of  Halifax,  to  compel  the  Warden  and 
Council  of  the  Town  of  Dartmouth  to  assess,  on 
the  property  of  the  town  liable  for  assessment, 
the  sum  of  $15,976  for  its  proportion  of  county 
school  rates  for  the  years  1873-78,  under  section 
52  of  4th  Rev.  Stats.,  c.  32. 

Hdd,  that  the  Warden  and  Town  Council 
ouglit  to  have  assessed  in  each  year  for  the  pro- 
portion of  the  county  schoul  assessment  payable 
by  tiie  Town,  but  that  in  view  of  the  Act  to  amend 
the  Act  to  incorporate  the  Town  (Acts,  1877, 
c.  40),  section  30,  of  which  provided  that  the 
sum  to  be  voted  at  the  annual  meeting  of  the 
Town  for  the  estimates,  including  ordinary  and 
extraordinary  expenses,  should  not  exceed  in 
any  year  the  sum  of  i$15,000,  there  was  a  diffi- 
culty in  the  way  of  issuing  the  mandamus,  as 
asked  for. 

Quaere,  whether  there  should  have  been  a 
relator. 

Per  James,  J. — The  City  of  Halifax  is  not 
exempted  by  chapter  32,  4th  Rev.  Stat.,  from 
contribution  to  the  county  school  rates,  but  is 
equally  liable  with  the  Town  of  Dartmouth. 

The  Supreme  Court  of  Nova  Scotia,  without 
determining  whethei"  the  required  assessment 
was  possible,  and  was  obligatory  when  the  writ 
\tas  issued,  made  the  rule  ni>ii  for  a  mandamus 
absolute,  leaving  tliese  questions  to  be  deter- 
mined on  the  return  of  the  writ. 

Queen  v.  Town  Council  of  Dartmouth, 

1  R.  &  G.,  402. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  Strong  and  Gwynne,  JJ.,  dintenting, 
that  the  granting  of  the  writ  in  this  case  was  in 
the  discretion  of  the  Court  lielow,  and  the  exer- 
cise of  that  discretion  cannot  at  present  be 
questioned. 

Per  Ritchie,  C.  J.— That  the  Town  of  Dart- 
mouth ia  not,  but  that  the  City  of  Halifax  is, 


exempted  by  4th  Rev.  Stat.,  c.  32,  from  contri- 
bution to  the  county  school  rates. 

Queen  v.  Warden  and  Council  of  the  Town 
of  Dartmouth,  9  S.  C.  R.,  509. 

5.  Intoxicating  liquors— Mode  of  testing 

validity  of  clause  of  Act  imposing  conditions 
on  obtaining  licenae- Enactments  of  the  Legis- 
lature of  Nova  Scotia  prohibiting  the  retail  of 
intoxicating  liquors  by  unlicensed  vendors,  and 
prescribing  penalties  for  such  unlicensed  vending 
are  within  the  power  of  that  Legislature  by 
section  92  of  the  B.  N.  A.  Act,  sub-section  9  ; 
and  it  would  be  no  defence  to  an  action  for  such 
penalty  to  show  that  the  legislation  under  which 
the  Sessions  were  authorized  to  refuse  to  grant 
licenses  was  ultra  virex.  The  proper  course  in 
such  case  would  be  a  mandamus  to  the  Sessions 
to  compel  the  granting  of  the  license.  The 
legislation  contained  in  4th  R.  S.,  c.  75,  sections 
32  and  33,  is  not  ultra  vires,  although  it  may  to 
a  certain  limited  extent  affect  trade  and  com- 
merce. 

Keefe  v.  McLennan,  2  R.  &  C,  5  ; 

2  Cart.,  400. 

6.  Justices  of  Peace— Mandamus  to  com< 

pel  them  to  issue  a  warrant  against  defendant 
for  violation  of  Canada  Temperance  Act,  1878— 
An  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  Justices  had  declined  to  issue  the  warrant 
on  the  ground  that  the  notice  to  the  Secretary 
of  State  referred  to  in  sections  5  and  6  of  the 
Act,  and  required  to  be  filed  in  the  office  of  the 
Sheriff  or  Registrar  of  Deeds  of  or  in  the 
County,  was  not  regularly  filed,  there  lieing  two 
Registrars  of  Deeds  in  the  County  of  Cumber- 
laud,  one  at  Amherst  and  one  at  Parrsboro,  and 
the  notice  having  been  deposited  only  with  the 
former,  as  a  consequence  of  which  the  Justices 
considered  that  the  subsequent  proceedings  were 
irregular  and  that  the  Act  was  not  in  force  in 
the  County. 

The  proclamation  having  issued  and  the  elec- 
tion having  taken  place  and  resulted  in  the 
adoption  of  the  Act, 

Held,  that  as  the  effect  of  going  behind  the 
election  would  be  to  create  difficulties  and  mis- 
chief, the  language  of  the  Act  must  be  regarded 
as  directory  and  not  mandatory,  and  that  the 
mandamus  applied  for  must  issue. 

Per  McDonald,  C.  J.,  and  Ritchie,  J.— That 
the  Governor  in  Council  being  constituted  the 
judicial  authority  to  determine  whether  the  pre- 
liminaries directed  by  the  Act  had  been  complied 


855 


MASTER. 


856 


with,  and  having  determined  in  the  affirmative 
and  issued  the  proclamation,  the  regularity  of 
the  preliminary  proceedings  could  not  be  ques- 
tioned. 

Queen  v.  Hich,  7  R.  &  G.,  89  ; 
7  C.  L.  T.,  143. 

7.  Nuisance— Right  to  proceed  by  manda- 
mus instead  of  indictment  —  The  defendant 
company  obtained  an  Act  enabling  it  to  maintain 
a  line  of  liorse  cars  in  the  Tity,  but  requiring  it  to 
provide  rails  of  the  most  improved  pattern,  and 
lay  them  even  with  the  surface  of  the  streets,  so 
as  not  to  interfere  with  the  passage  of  vehicles 
and  to  keep  the  roadway  in  repair  within  the 
track  and  three  feet  on  each  side.  Defendant 
having  ceased  to  operate  the  line  the  roads  fell 
out  of  repair  and  the  rails  protruded.  After 
the  commencement  of  this  suit,  which  was  for 
a  mandamus  to  compel  the  defendants  to  have 
the  rails  laid  even  with  the  surface,  and  to  put 
the  roads  in  repair  as  required  by  the  Act,  the 
City  authorities  in  many  instances  covered  the 
streets  on  which  the  rails  were  laid,  with  stones. 

Held,  that  the  City  liad  a  right  to  proceed  by 
mandamus,  and  was  not  obliged  to  resort  to  an 
indictment  of  the  nuisance,  or  to  proceedings,  to 
fine  the  defendants  under  the  Act  of  1870,  cap. 
99,  for  violation  of  the  provisions  of  their  Act 
of  Incorporation,  neither  of  these  courses  pre- 
senting a  remedy  as  beneficial  as  the  proceedings 
by  mandamus,  but  that  the  mandamus  must  be 
limited  in  its  operation  to  those  streets  on  which 
the  railway  had  not  been  covered  by  the  City 
authorities,  as  the  action  of  the  City  in  this  re- 
pect  had  imposed  an  unreasonable  burden  upon 
the  company  in  removing  the  stones. 
The  City  of  Halij'a?:  v.   The  City  Railu-ay  Co., 

R.  E.  D.,  319, 

8.  Rale  to  qnasb,  too  late  aner  return 

day — Res  adjudieata — Defendants  obtained  an 
order  to  quash  a  writ  of  mandamus  on  grounds 
appearing  on  the  face  of  the  writ  together  with 
other  grounds  appearing  by  affidavit.  On  the 
return  day  of  the  order  defendants  obtained 
from  the  court  in  banco,  a  rule  discharging  this 
order,  giving  defendants  leave  to  moi'e  the  court 
on  the  grounds  taken  in  the  order  nim.  Defend- 
ants moved  the  •  nrt  accordingly  and  obttvined 
a  rule  to  quash  the  vr  .it  which  provided  that  the 
defendants  should  have  ten  day.^  after  the  dis- 
charge of  said  rule  to  make  their  return  to  the 
writ. 

//eld,  that  the  motion  to  quash  should  bo 
made  before  the  return  day,  and  that  the  pro- 
vision in  the  rule  nisi  giving  time  could  not  be 
said  to  have  extended  the  return. 


//e/d,  as  to  the  other  grounds  taken  in  the 
rule,  viz :  that  the  application  should  have 
been  made  promptly,  that  no  sufficient  matter 
appeared  in  the  writ,  tliat  other  legal  remedies 
existed,  and  that  the  writ  required  defendants 
to  do  an  act  exceeding  their  authority,  that 
these  grounds  could  have  been  taken  in  showing 
cause  to  the  rule  nixi  for  the  mandamus,  and 
therefore  could  not  form  the  ground  of  a  motion 
to  quash. 

The  further  ground  was  taken  that  no  valid 
order  existed  for  the  issue  of  the  writ  as  the 
order  was  for  a  peremptory  mandamus  and  the 
writ  was  in  the  alternative. 

Held,  that  as  the  court  understood  in  grant- 
ing the  rule,  that  they  were  making  a  rule  for  a 
mandamus  alternative  the  matter  was  re.s  adju- 
dicata. 

Queen  v.  The  Wnrdeii  and  Town  Council 

of  Dartmouth,  4  R.  &  G.,  173. 


MANSLAVGHTER- 
See  CRIMINAL  LAW. 

MARINE  INSURANCE- 
See  INSURANCE,  MARINE. 


MARRIAGE  LAW-FOREIGN,  PROOF  OF 
See  CRIMINAL  LAW,  4. 


MARRIED 


WOMEN'S   PROPERTY 

1884- 


ACT  or 


Set  HUSBAND  AND  WIFE. 


MASTER. 
1.    Duties  of  master  In  taking  an  accoant 

— Plaintiff  having  become  insolvent,  made  an 
assignment  for  the  lienefit  of  creditors,  whereupon 
one  of  the  defendants  was  appointed  assignee. 
The  business  was  reconveyed  to  plaintiff  on  his 
undertaking  to  |)ay  a  composition  on  the  amount 
of  his  indebtedness  for  the  payment  of  which 
another  of  the  defendants  became  surety,  and 
plaintiff  subsequently  executed  several  assign* 


857 


MASTER  AND  SERVANT. 


858 


The.  James  Fraser,  Y.  A.  D. ,  159. 

or  vessel- 
See  SHIPPING. 

MASTER  AND  SERVANT. 


mcnts  to  defendants  to  secure  advances.     De-  |  satisfy  the  mind  of  the  Court  that  it  ought  not 

fendants  liaving  taken  possession  under  the  last  |  to  be  maintained. 

mentioned  assignments,  the  matters  in  difference  . 

between  plaintiflF  and  defendants  were  referred  ! 

to  a   Master,   with   instructions   to    "  take  an  I      4. 

account  and  report  the  sum   due  from  either  ! 

party  to  the  other  of  them." 

The  Master  having  reported  inter  alia  that  tlie 
defendants,  after  paying  the  other  creditors  of 
plaintiffs  their  respective  claims  at  tiie  rate  of 
sixty-two  and  a  half  cents  on  the  dollar,  iiad        ..„...,  ,         ....         ,.. 

paid  to  themselves  the  full  amount  of  their  ^  J-    Contract  for  wopk  and  labor-M  rong- 

claim,  and  that  being  of  opinion  that  defendants    ^^l  dismissal  -  Measure    of   damages -Res 
were  not  entitled  to  any  greater  rate  of  dividend    ^^J^^^^^f  *  "  Incapacity-Burden  o    proof- 
.    ,       ,  .       ^,         ^,    ^        •  1    i      ii        4i        1  liiintiil  was  cncageil  by  defeiulants  through  an 
on  their  claim    than   that  paid   to    the    other  , .  ,       .  ,    •      ,    . 

1      1     1    1-    11         1    .1      „„  „i„„  ,..;*!     agent  at  Prague,  Jsohemia,  to  work  in  their  em- 
crcditors,  he   had  disallowed   the  surplus  with  ;    f      .      ,       °       .        , . 

,    ,     ,  i-i    1    4i  t      *u      ploy  m  the  capacity  of  journeyman  and  assistant 

inteiest,   and   had   credited    the   same   to    the !  i     ■>  ,     '  •    .f   ■      i  ,       ,  xr      ,., 

.  '  ;  superintendent  in  their  glass  works  at  rs  ewGlas- 

P ',,,',    ^        ,      ^,  .,      ...      ITT-  ;  gow.  Nova  .Scotia.  The  engagement  was  made  to 

IhUls  that  under  the  authorities  (Htiigim  \.    >=      \  .    ,     r     f 

'      ,      , , .-,        ^  Ti     J  tr  •  I.    1 1    \      continue   for  a  period  of  three  years  from  the 

/>^V^4Exuh.,  112,  and/^o»-rfe«  V.  /ra(</A,  11  A.  .,,,,,..•«.,   x-       r-i 

,     ,,„..,    .<     -Kt    ^  •     i.'c    1  •  I  •      'arrival  of   the   plamtitl  at   Jsew  dlasgow  at  a 

&  E.,  lO.^S,  the  Master  was  justified  m  making,  i  ,,     ,. 

,    ,  si)ecined    rate    of    wages,    payable  bi-monthly, 

the  deduction.  !    '    .  °        \ /  / 

,    ^  .,  ,     ,     ,  f  .,    ,  .        .        ,      11  v    Plaiutiff  commenced  work  May  1st,  188.}.     JJe- 
J /.<o,  that  if  he  had  failed  to  act  as  he  did  It  .        .  .,    ,  .•',., 

,,  ,         ,  .,      ,   .        e  ^\     r<       ^        1       fendants  having  failed    to  give   him  the  work 

Wduld  have  been  tlie  duty  of  the  Court  under  .    ,  ,  .  ,      ,  . 

...  c        1  <.      »       •      »i        1  ■   ,  a-  contracted  for,  or  to  pay  wages  as  agreed,  plain- 

the  authorities  referred  to,  to  give  the  plaintiff  '  ^\      »  J=        'i 

tin  Ijrought  an  action  and  on  the  29th  November, 

1884,  recovered  judgment   for   the  amount    of 

wages  due   him   at   that   date.      In   Feliruary, 

188,"),  defendants  dismissed  plaintiff  from  their 

On  appeal  to  the  Siqn-eme  Court  of  Canada,      ]  employ,  and,  on  the  expiration  of  the  period  of 

Htld,  that  the  decision  of  the  Supreme  Court    three  years,  he  brought  a  second  action  claiming 

of  Nova  Scotia,  confirming  the  report  of   the  ;  wages  at  the  rate  agreed   on  from  the  date  of 

Master  on  the  reference  must   be  reversed  on  |  judgment  in  the  former   action   to  the  date  of 

tliu  ground  that  the   Master  had  exceeded  his  '  his  dismis.sal,  and  damages  at  the  same  rate  from 

authority  and  reported  on  matters  not  referred    the  date  of  the  dismissal  to  the  expiration  of  the 

to  him.  period  for  which  tlie  original  contract  was  made. 

Doull  V.  Mcllrtith,  14  S.  C.  R.,  739.  |      //,i,i^  that  if  the  first  suit   had   determined 

I  any  issues  raised  in  the  second  it  would  be  fatal 
2.  Findings  of- Requisites  to  overrule—  to  any  attempt  to  raise  the  same  (juestions  again. 
The  findings  of  a  Master  on  a  matter  of  account  but  that  as  in  the  first  suit  plaintiff  had  only 
referred  to  him  will  not  be  overruled,  unless  it  |  claimed  for  wages  due  him  up  to  that  date  the 
is  clearly  made  to  appear  that  they  cannot  be  principle  of  »v  s  wljudicafn  did  not  apply,  plain- 
sustained  by  the  evidence  before  him,  or  tiiat  tiff  having  the  right  under  the  contract  provi- 
he  has  proceeded  on  some  erroneous  principle,  ding  for  payment  of  wages  twice  monthly,  to 
or  mistaken  view  of  the  law  in  making  his  |  sue  whenever  defendants  failed  to  pa}-  at  the 
rt'pwl,  '  times  or  in  the  amounts  agreed  on. 

McKay  v,  Cum7ning.s  tt  at.,  '20  is.  S.  K.,       I      Defendants  having  sought  to  justify  the  dis- 

(8  R.  &  G.),  537.    missal  on  the  ground  that  plaintiff  was  incapable 

of  doing  the  work  he  had  contracted  to  perform. 


the  benetit  of  the  amount  overcharged. 
Mcllrcitk  V.  Doull  a  al.,  7  R.  &  G. 
7  C.  L.  T 


341; 
,  40t). 


3.   Master  of  the  Vlce-Admlralty  Court- 
Report  of Where  in  a  (juestion  of  accounts 

anil  disbursements  a  thoroughly  competent  per- 
son has  Ijeen  selected  as  referee  with  the  approval 
of  both  parties,  and  he  reports  thereon  after  a 
full  examination,  those  who  would  take  objec- 
tions to  such  a  report  are  Iwund  to  prove  their 
objections   by  clear  and  satisfactory  evidence. 


Held,  that  the  burden  of  proving  incapacity 
was  on  defendants. 

It  appearing  that  the  system  and  appliances 
ill  use  in  New  (Jlasgow  for  producing  glass  were 
different  from  those  to  which  plaintiff  had  been 
accustomed  in  Bohemia, 

Held,  that  plaintiff  was  not  guilty  of  a  breach 
of  the  implied  covenant  that  he  was  reasonably 


for  it  will  not  be  overruled  unless  there  be  an    skilled  and  competent  for  the  work  he  had  en- 
overpowering  case  made  against  it  which  shall  |  gaged  to  do. 


859 


MASTER  AND  SERVANT. 


860 


Diunages  having  been  allowed  plaintiff  in  the 
full  amount  of  the  wages  agreed  to  be  paid  him, 
and  it  appearing  that  he  could  not  speak  or  un- 
derstand the  language  of  the  country  and  was 
incapable  of  doing  any  other  work. 

Held,  that  there  was  no  reason  for  disturbing 
the  verdict. 
Jeyked  v.  Xova  Scotia  Glass  Co.,  20  N.  S.  R., 

(8  R.  &  G.),  388  ;  9  C.  L.  T.,  60. 

2.   Contract  of  mining— Evldence-PIalB* 

tiff  had  been  Lm  the  employ  of  the  defendant 
company  under  Gould,  their  Chief  Engineer,  at 
the  rate  of  $5  a  day  for  the  time  he  was  actually 
engaged.  On  the  6th  Oct.,  1874,  Tremayne,  the 
London  Secretary  of  the  company,  wrote  to 
Harrison,  then  manager  in  Nova  Scotia,  in  these 
terms  :  "  It  has  been  agreed  that  Gray  shall 
receive  pay  from  the  company  as  from  the  day 
of  Mr.  Gould's  departure  from  the  works,  at  $5 
per  day,  the  terms  of  his  permanent  service  to 
be  iixed  by  the  board,  when  the  salaries  of  other 
oificers  are  discussed."  This  letter  was  shown 
to  plaintiff  by  a  subordinate  servant  of  the 
company,  but  without  the  consent  of  Harrison, 
who  swore  that  the  whole  matter  had  been  left 
in  his  hands  to  deal  with  by  the  Board  of 
Management  in  London.  Harrison  repudiated 
the  terms  contained  in  the  letter  of  Tremayne, 
and  between  the  6th  October,  1874,  and  the  4th 
Jamuary,  1875,  by  himself,  and  through  Dudgeon, 
the  treasurer,  wrote  to  plaintiff,  informing  him 
that  he  was  to  be  paid  only  for  the  time  that  he 
was  actually  employed.  The  jury  found  for 
plaintiff,  allowing  $5  per  day  for  every  day  from 
August  3rd,  1874,  to  April  30th,  1875. 

Held,  per  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  contract  with  him,  or  if  it  did 
that  it  had  been  formally  repudiated  afterwards, 
and  that  the  verdict  must  be  set  aside. 

Per  Wilkins,  J.,  with  whom  McDonald,  J., 
concurred,  that  the  plaintiff  having  seen  the 
letter  of  Tremayne  without  any  fraud  on  his 
part,  and  having  adopted  and  acted  upon  it,  was 
entitled  to  the  amount  awarded  by  the  jury. 

Quaere,  whether,  the  Court  being  eciually 
divided,  there  could  be  any  judgment. 

Gray  v.  The  Steel  Company  of  Canada, 

3  R.  &  C,  24. 

8.   Dismissal  Of  mental  servant— Contract 

of  hiring — Plaintiff  hired  with  defendant  as  head 
gardener,  receiving  a  certain  salary  per  year  and 
a  per  centage  on  the  fruit  of  the  grapery,  and 
at  the  time  of  hiring  was  in  occupation  of  a 
small  house  on  the  estate.     A  fellow  servant  of 


the  plaintiff  was  ordered  to  go  to  the  grapery  to 
get  some  vine  leaves,  and  plaintiff,  knowing  that 
he  had  been  so  sent,  told  defendant,  whom  he 
met  shortly  afterwards,  that  if  he  caught  him 
there  again  he  would  kick  him  out.  Language 
of  the  same  kind  was  used  in  presence  of  anollier 
servant,  and  with  a  personal  reference  to  the 
defendant  himself.  After  some  days,  plaintiff, 
having  expressed  no  regret,  was  told  by  defend- 
ant that  he  must  leave  at  the  end  of  three 
months,  and  at  the  expiration  of  that  period 
the  defendant  instructed  his  solicitor  to  take  all 
lawful  steps  to  turn  plaintiff  out  of  the  house. 

Held,  that  the  conduct  of  the  plaintiff  justified 
the  defendant  in  dismissing  him  without  notice, 
and  that  his  right  to  occupy  the  house  ceased 
with  the  termination  of  his  service. 

Quaere,  whether  the  English  custom  allowing 
the  dismissal  of  a  menial  servant  on  a  month's 
notice,  without  cause,  although  hired  for  a  year, 
exists  in  this  Province. 

Fleming  v.  Hill,  1  R.  &  C,  268. 

See,  also,  COUTBACT— 

BILLS  OF  SALE,  17  &  18. 

4.  Liability  of  master  for  injury  to  serrant 

— Where  plaintiff  was  injured  by  an  explosion  of 
gas  in  defendant  company's  mine  occasioned  by 
an  erroneous  plan  of  the  workings,  but  it  was 
not  proved  that  the  company  had  employed 
incompetent  men  to  superintend  the  mining,  and 
plaintiff  was  not  employed  under  special  agree- 
ment. 

Held,  that  he  could  not  maintain  an  actioa 
against  the  company  for  the  injury. 

Smith  v.  The  Intercolonial  Coal  Mining  Co., 

2  R.  &  C,  556, 

5.  Liability  of  mine  owners  for  injury  to 

employees — Owners  of  mines  are  not  liable  for 
i  an  injury  to  a  workman  in  their  employ,  caused 
1  by  the  negligence  of  their  foreman  or  superin- 
tendent, if  they  have  selected  proper  and  com- 
petent persons  to  superintend  the  work,  and 
have  furnished  them  with  adequate  materials 
and  resources  for  the  work.  The  negligence  of 
the  persons  so  selected  is  not  the  negligence  of 
the  master.  (See  judgment  Lord  Chancellor 
Cairns,  IVilson  v.  Henry  et  al.,  19  L.  T.,  N.  S., 
33.)  It  is  not  indispensable,  though  proper,  in 
such  case,  that  the  defendant  should  plead  that 
the  negligence  was  the  negligence  of  a  fellow 
servant  of  the  plaintiff.  (See  Seale  v.  Lindnay, 
11  C.  B.,  N.  S.  429.)  The  party  asserting  the 
negligence  must  prove  it,  and  the  negligence  of 
a  servant  in  such  a  case  is  not  the  negligence  of 
the  master. 

Campbell  v.  General  Mining  Asaocialion, 

IN.  S.  D.,415. 


861 


MEDICINE  AND  MEDICAL  PRACTITIONER. 


862 


6.  Porchase  by  serrant,  who  misappro* 

priates  cash  given  him  for  payment — Vendor 
cannot  recover  price  from  master  —  Where 
defendant's  servant  purchased  a  quantity  of  cop- 
per from  the  plaintiff,  for  cash,  and,  having 
received  the  money  to  pay  for  it,  fraudulently 
retoined  it  U>  his  own  use, 

Udd,  that  plaintiff  could  not  recover  the  price 
of  the  copper,  it  having  come  into  the  defen- 
daut's  possession  without  his  being  aware  of  the 
fraudulent  conduct  of  his  servant. 

Almon  V.  Trem/et,  1  Thorn.,  {1st  Ed.),  89  ; 

(2nd  Ed.),  117. 


1.  Salary  —  Action  for— Conflicting  evi* 

dence— Entry  by  party — Plaintiff  was  book- 
keeper for  defendant  and  claimed  a  balance  of 
salary  due  him,  alleging  that  the  hiring  was  for 
91,600  a  year.  Defendant  contended  the  plain- 
tiff's salary  was  only  $1,000,  which  had  been 
paid  in  full.  Their  respective  statements  as  to 
the  terms  agreed  upon  between  them  were  very 
conflicting,  but  in  corroboration  of  defendant's 
was  the  fact  that  at  the  end  of  the  year  for 
which  the  salary  was  to  be  paid  the  plaintiff 
entered  it  in  the  books  as  only  $1,000.  The  jury 
found  for  plaintiff. 
Htld,  that  there  should  be  a  new  trial. 

McNutt  V.  McDonald,  3  N.  S.  D.,  175. 


8.   Servant  not  liable  for  loss  or  property 

of  third  party  hired  by  master  where  loss 
arose  from  inevitable  accident — Plaintiff  was 
in  the  habit  of  hiring  horses  and  waggons  to 
persons  requiring  them.  During  his  absence 
from  home  his  wife,  contrary  to  instructions  not 
to  hire  horses  or  carriages  in  hia  absence,  though 
the  evidence  on  this  point  was  of  a  doubtful 
character,  hired  to  C,  one  of  the  defendants,  a 
waggon  and  several  horses,  to  be  used  in  con- 
veying a  gold  crusher  from  Port  Hood  to  River 
Dennis.  While  the  team  was  crossing  the 
bridge,  driven  by  D.,  an  experienced  driver, 
who  was  joined  as  co-defendant,  and  against 
whom  alone  the  action  was  prosecuted,  one  of 
the  horses  received  injuries  by  getting  a  leg 
through  the  bridge,  in  consequence  of  which  he 
died.  The  plaintiff's  writ  contained  counts  in 
trespass  and  trover,  but  the  action  was  treated 
throughout  as  one  of  trover.  A  verdict  havuig 
been  found  for  plaintiff, 

Hdd,  that  there  was  no  evidence  of  conversion 
hy  the  defendant,  D.,  and  that  he,  being  merely 
the  servant  of  C,  ought  not  to  be  held  responsi- 
ble for  an  injury  which  was  admitted  to  have 
been  an  inevitable  accident. 

Murphy  v.  Dvihxnty  etcU.,2  N.  S.  D.,  294. 


9.  Wrongfkil  dismissal  —  Action  for— 

Defence  of  incapacity  —  Burden  of  proof- 
Defendants,  in  an  action  for  wrongful  dismissal, 
sought  to  justify  the  dismissal  on  the  ground 
that  plaintiff  was  incapable  of  doing  the  work 
he  had  contracted  to  perform. 

Held,  that  the  burden  of  proving  incapacity 
was  on  defendants. 

Jeykal  v.  Nova  Scotia  Glasa  Co., 

20 N.  S.  R.,  (8R.  AG.),  388; 
9  C.  L.  T.,  60. 

10.  Wrongftal    dismissal  —  Measure    of 

damages — In  an  action  for  wrongful  dismissal 
plaintiff  obtained  a  verdict  for  the  whole  aniount 
of  wages  from  the  date  of  dismissal.  Defendant 
contended  that  the  verdict  should  have  been 
reduced  by  whatever  sum  the  plaintiff  might 
have  earned. 

Held,  that  as  the  verdict  disclosed  that 
plaintiff  could  not  speak  and  did  not  understand 
the  language  of  the  country,  that  he  was  from 
life  long  habit  incapable  of  doing  any  other 
labor  than  that  of  his  trade,  to  engage  in  which 
he  had  come  to  this  country  under  contract  with 
defendant,  and  that  in  fact  he  could  not  obtain 
any  employment,  there  was  no  reason  for  dis- 
turbing the  verdijt. 

Jeykal  v.  Xova  Scotia  Glass  Co., 

20  N.  S.  R.,  (8R.  &G.),  388; 
9  C.  L.  T.   60 

.S'ee,  a/£o,  NELIdBNCE. 


MEDICINE  AND  MEDICAL  PBACTITIONER. 

1.  Assumpsit  implied  —  Surgeon's  Fees- 
Plaintiff,  who  at  the  time  was  visiting  surgeon 
of  the  City  Hospital,  performed  a  surgical 
operation  upon  the  deceased,  of  whose  estate 
defendant  was  administratrix.  Dr.  McFatridge 
had  been  attending  deceased  in  his  illness,  with 
Dr.  Parker  as  consulting  physician.  The  latter 
advised  the  deceased  to  have  the  operation  per- 
formed in  the  hospital,  telling  him  that  plaintiff, 
as  house  surgeon  for  the  time,  would  perfornn 
the  operation,  and  he,  Parker,  would  assist. 
Deceased  assented  to  the  operation  being  per- 
formed by  the  plaintiff,  and  it  was  performed 
successfully. 

Held,  that  although  the  hospital  was  primarily 
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. 

Farrell  v.  McLaren,  3  R.  &  C,  75. 


863 


MERCHANT  SHIPPING  ACT. 


8G4 


2>    Patent  medicine— Assignment  of  right 

to  manufacture  and  sell — Restraining  breach 
of  contract — Defcnflaiits  assigiisd  to  plaintiffs 
the  exclusive  right  to  manufacture  and  sell, 
within  the  Dominion  of  Canada,  the  Island  of 
Newfoundland,  and  the  W.  I.  Islands,  a  prepara- 
tion designed  for  the  treatment  and  cure  of  pul- 
monary diseases,  known  as  "  I'littner's  Emulsion 
of  Cod  Liver  Oil."  Defendants  reserved  the 
right  to  manufacture  and  sell  the  emulsion  in 
the  United  States,  hut  agreed,  as  part  of  the 
consideration  for  tiic  purchase  by  plaintiffs,  that 
they  would  not  sell  the  emulsion,  or  any  other 
emulsion  in  the  preparation  of  which  cod  liver 
oil  was  used,  or  wliich  was  essentially  or  sub- 
stantially the  same  as  that  assigned  to  plaintiffs, 
within  any  part  of  the  described  limits.  Subse- 
quently, the  defendants  commenced  the  manu- 
facture and  sale,  in  Canada,  of  an  emulsion 
which,  though  sold  under  the  name  of  "liudd's 
Emulsion,"  was  essentially  and  substantially  the 
same  as  that  assigned  to  plaintiffs,  and  in  the 
preparation  of  whicli  plaintiffs'  emulsion,  though 
varieil  from  so  far  as  to  create  a  scientific,  but, 
for  trade  purposes,  an  immaterial  difference,  was 
largely  imitated.  While  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  the 
effect  of  causing  defendant's  emulsion  to  be 
bought  as  that  sold  to  plaintiffs,  and  to  lead  the 
public  to  believe  that  defendants'  emulsion,  if 
not  the  real  and  only  genuine  "  I'uttner's  Emul- 
sion," was  essentially  and  substantially  the  same. 

A  perpetual  injunction  having  issued  to  re- 
strain the  manufacture  and  sale  of  "  Budd's 
Emulsion," 

Iltld,  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,  which  the 
Court  refused  to  interfere  to  protect. 

Al^o,  that  the  restriction  contained  in  the 
agreement  Ijctween  the  parties,  in  view  of  the 
suljject  matter  of  the  contract,  was  not  un- 
reasonable or  void,  as  in  restraint  of  trade. 

Irish  et  al.  v.  PiUtner  et  al.,  7  B,,  &0.,  405. 


3.     Physician  residing  abroad  may  sue 

here  for  services  rendered  abroad  although 
not  registered  here — The  plaintiff  a  physician 
practising  in  Newfoundland,  performed  medical 
services  for  the  defendant  also  resident  there. 


Hf.ld,  that  the  plaintiff  could  recover  in  this 
Court   notwithstanding  he   was   not   registered 
under  4th  R.  S.  cap.  8,  sec.  22. 
Wilmot  V.  Shaw,  2  R.  &  (J.,  343  ;  2  C.  L.  T.,  96. 

4.  Practitioners  of  Medicine  and  Sur- 
gery—Act requiring  registration— Prosecution 
for  infraction  —  Construction  of  R.  S.  (5lh 
series),  chap.  24,  sec.  26— Defendant  was  prose- 
cuted by  the  Provincial  Medical  Board,  a  Ijody 
corporate,  for  an  infraction  of  the  provisions  of 
chapter  24,  R.  S.  (5th  series),  "Of  Practitioners 
of  Medicine  and  Surgery,"  by  "  professing  by 
public  advertisement,  card,  circular,  sign,  or 
otherwise  to  practise  physic  or  surgery."  the 
defendant  nov  being  at  the  time  properly  regis- 
tered under  the  Act. 

The  section  under  which  the  proceedings  were 
commenced  read  :  "If  any  person  not  registeieil 
or  licensed  under  the  provisions  of  this  chapter 
practises  physic  ...  or  professes  by  public 
card,  circular,  sign,  or  otherwise,  to  practise 
physic,  .  .  .  or  to  give  advice  therein,  or  in 
anywise  to  lead  people  to  infer  that  he  is  quali- 
fied to  practise  physic  ...  in  this  Province,  lie 
shall  forfeit  and  pay  the  sum  of  .?20.00  for  each 
day  that  he  so  practises,  or  leads  people  to  infer 
that  he  is  so  practising." 

Held,  affirming  the  decision  of  the  County 
Court  Judge  for  District  No.  1,  that  the  inten- 
tion of  the  Act  was  to  prevent  persons  not 
registered  under  it  from  practising,  and  that  the 
defendant  having  professed  to  practise  and 
give  advice,  and  having  actually  practised  and 
given  advice  as  a  piiysician  and  surgeon,  although 
not  qualified  to  do  so  by  registration,  was  liable 
to  the  penalty  imposed. 

Weatherbe,  J.,  dissentin;/. 

Provincial  Medical  Board  v.  Washiiujton, 

7R.  &G.,470;  8  C.  L.  T.,  16. 


MERCANTILE  LAW  AMENDMENT  ACT,  1865. 
Section  7  ofthe  Mercantile  law  Amendment 

Act  of  1865  (28  Vict.,  ch.  10)  has  a  retrospec- 
tive operation  as  regards  rights  of  action ;  but 
does  not  apply  to  actions  commenced  ))efore  its 

passage. 

Coidson  V.  Samjster  et  al.,  1  Old.,  676. 


MERCHANT  SHIPPING  ACT- 
See  SHIPPING. 


865 


MINING  LAW. 


866 


MESNE  PROFITS- 
Ste  USE  AND  OCCUPATION. 


MILITU. 
1.  Called  out  in  aid  of  cItH  power— The 

Militiii  Act,  Acts  of  1868,  c.  40,  as  amended  by 
tlie  Acts  of  1873,  e.  46,  and  the  Acts  of  1879,  c. 
Xi,  authorizes  the  culling  out  of  tiie  :nilitia  hy 
tlie  senior  otfiuer  present  in  any  locality,  in  aid 
uf  the  civil  power,  for  the  purpose  of  preventing 
or  siii)prcssing  riots  when  thereunto  reciuiretl,  in 
writing,  whicii  writing  shall  express  on  the  face 
tiiercof  the  actual  occurrence  of  a  riot,  disturb- 
iint'c  or  emergency,  or  the  anticipation  thereof. 
When  so  called  out  the  liability  to  pay  for  the 
services  of  the  militia  is  imposed  upon  the  Muni- 
cipality for  which  such  services  are  re(|uired. 

Several  companies  of  militia  in  the  Munici- 
piility  of  Cape  Breton  were  called  out  in  pursu- 
ance of  a  requisition,  which  rcail  :  "It  having 
been  represented  to  us  that  a  disturbance  has 
occurred  and  is  still  anticipated  at  Lingan,  be- 
yond tlic  power  of  the  civil  power  to  suppress, 
you  arc  tlicrefore  hereby  ordered,"  &c. 

//'/(/,  tiiat  in  order  to  make  the  Municipality 
liable  for  the  nuvintenance  and  pay  of  the 
inililia,  tiie  requisition  must  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  tlie  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 
lialde. 

Haul  v.  The.  Municipality  of  Cape  Bretmi, 

7  R.  &G.,260; 
7  C.  L.  T.,  349. 

On  appeal  to  the  Supreme.  Court  of  Canada, 

Held,  that  the  requisition  was  sufldcient. 
The  Statute  also  provides  that  the  Munici- 
pality shall  pay  tlie  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. 

llttd,  Strong,  J.,  ditmentim/,  that  where  the 
commanding  officer  died  pending  such  action, 
the  proceedings  could  be  continued  by  his  per- 
sonal representative. 

Crewe- Read  v.  County  of  Cape  Breton, 

14  S.  C.  R.,  8. 
28 


2.    Power  to  amerce  County  for  charges 

for  militia  called  out  to  quell  a  riot-  -Neither 
the  Dominion  Acts  cf  1868,  c.  40,  and  of  1873, 
c.  46,  nor  4th  R.  S.,  c.  21,  empower  the  .Supreme 
Court  to  amerce  a  County  for  charges  incurred  in 
calling  out  the  active  militia,  under  the  Dominion 
Act  of  1873,  e.  46,  to  quell  a  riot. 

In  re  Amercement  of  Cape  Breton  Co., 

2R.  &C.,410. 


MINING  LAW. 

1.  Agreement  to  work  mine  Tor  share  or 

profits — Plaintiff  made  an  oral  agreement  with 
(i.,  the  owner  of  a  gold  claim,  to  work  a  portion 
of  the  claim,  plaintitl'  receiving  two  thirds  of  the 
profits  after  paying  all  expenses.  Defendant, 
acting  as  Sheriff  of  the  County  of  Hants,  levied 
upon  and  sold  certain  gold  taken  out  of  the 
mine  by  plaintiff,  on  an  execution  against  (1. 
Plaintiff  having  brought  trover  for  the  gold  so 
taken,  and  a  verdict  having  passed  in  his  favor, 
Held,  that  under  the  agreement  to  work  the 
mine  for  a  share  of  the  profits,  no  interest  in  the 
mine  was  transferred  to  plaintiff  within  tiie 
meaning  of  section  four  of  the  .Statute  of  Frauds. 
McDonald  v.  Gtldtrt,  3  N.  S.  D.,  551. 

2.  Appeal  flrom  Commissioner  of  Mines 

— Affidavit  for — \V.  H.  made  application  for  a 
lease  of  certain  gold  mining  areas,  which  was 
opposed,  and  a  contestation  took  place  before  the 
Commissioner  of  Mines  as  to  the  rights  of  the 
contending  applicants.  Pending  the  contest  and 
before  the  decision,  W.  H.  died.  The  decision 
being  against  the  deceased,  his  widow,  who  was 
appointed  sole  executrix,  gave  notice  under  the 
Statute  of  her  intention  to  appeal,  and  made  an 
affidavit  embodying  the  re(juirenients  of  the 
Statute,  and  filed  the  bond  recjuired.  The 
affidavit  was  made  in  Toronto  before  a  Notary 
Public  for  the  Province  of  Ontario, 

Held,  that  the  affidavit  was  not  made  in 
accordance  with  the  requirements  of  the  .Statute, 
and  that  the  appeal  must  be  set  aside  for  irregu- 
larity. 

Construction  of  5tli  R.  .S. ,  c.  107,  s.  5. 

Re  Hedley,  20  N.  S.  R.,  (8  R.  &  G.),  130; 
8C.  L.  T.,  376. 

3.  Appeal  from  Commissioner  of  Mines- 
Cross-examination  of  witness  stopped— Party 
aggrieved — In  re  Sjiehnan  distinguished — One 
of  several  applicants  for  a  mining  area  produced 
evidence  at  the  hearing  before  the  Commissioner 
of  Mines  to  prove  that  he  was  the  first  applicant. 


867 


MINING  LAW. 


868 


In  tlic  course  of  the  invcHtigution  a  witness 
agiiinst  the  appellant  was  examined,  and  while 
he  was  being  cross-examined  on  a  subject  of 
importance  to  the  inquiry  his  cross-examination 
was  stopped  by  the  Conunisaioner. 

Hdd,  that  this  was  sutticient  ground  on  which 
to  sustain  the  appeal,  and  that  the  appellant 
was  the  party  aggrieved  ;  tlie  case  diticring  from 
the  case  in  re  Spelman  in  that  there  the  applica- 
tions were  sinniltaneous. 

I'tr  Rigby,  J. — Costs  do  not  follow,  as  a  mat- 
ter of  course,  in  such  cases,  but  should  be  given 
in  such  a  case  as  the  present. 

Ptr  Weatherbe,  J. — Costs  of  appeal  follow, 
as  a  matter  of  course, 

III  re  Appeal  Stejthen  Sireet,  3  R.  &  G.,  397. 

4.  Application  for  mining  areas— Condi- 
tions precedent  to  entry — Leases  in  unpro- 
claimed  districts— Limitation  of  number  of 
areas— Irregularities  in  application-  Signature 
of  Commissioner  to  lease  —  Construction  of 
terms  in  Mines  Act— Conflicting  applications 
— Errors  in  description— The  provisions  of  the 
Mines  Act  for  the  appointment  of  arbitrators, 
the  making  of  an  award  and  the  payment  of 
damages  where  a  mining  lease  is  obtained  over 
private  lands,  and  no  agreement  is  made  with 
the  owner,  are  conditions  precedent  to  the 
right  of  entry. 

Leases  may  be  granted  in  unproclaimed  as  well 
as  proclaimed  districts. 

The  provisions  of  the  Act  limiting  the  n  ..mber 
of  areas  to  be  included  in  a  lease  is  directory 
only  and  disregard  of  it  by  the  Commissioner 
will  not  invalidate  a  lease. 

It  is  too  late  to  take  exception  to  defects  or 
irregiilaritiee  in  an  application  for  a  license  to 
search,  or  in  the  license  itself  after  the  appli- 
cation for  the  license  has  been  received  and 
acted  upon  and  a  lease  issued,  unless  fraud  is 
shown  upon  the  part  of  the  licensee  in  respect  of 
a  matter  material  to  his  right  to  get  a  lease. 

Where  application  is  made  for  a  license  to 
search  and  a  lease  is  subsetjuently  obtained, 
without  the  license  to  search  having  actually 
issued,  the  non-issue  of  the  license  to  search  is 
no  objection  to  the  lease. 

In  signing  a  lease  it  is  not  incumbent  upon  the 
Commissioner  of  Mines  to  attach  to  his  signa- 
ture his  title  of  office,  if  the  capacity  in  which 
he  signs  appears  sufficiently  from  the  body  of 
the  document. 

The  expressions  "district"  and  "gold  dis- 
trict "  in  the  Statute  do  not  necessarily  mean  a 
"proclaimed  gold  district." 

The  fact  that  an  application  for  a  license  to 
search  conflicts  with  a  previous  application,  will 


I  not  invalidate  cither  the  application  or  the  suhsc- 

I  (juent  lease,  if  at  the  time  of  the  granting  of  ihu 
lease  the  first  application  has  expired  witiiout 

!  having  been  acted  upon. 

I      Defendants'  application   described  the  areas 
applied   for   as   "commencing  at   a  bircli   iiee 

;  marked  A.  D.,  and  being  on  the  cast  side  nf 
Salmon  River  alntut  five  miles  above  the  bridge." 
It  appeared  that  the  tree  was  about  '21HHJ  feet 
distant  from  the  river,  and  considerably  less 
than  five  miles  from  the  bridge  in  a  direct  line. 
//eld,  that  the  tree  being  otherwise  sufiiuieiit- 
ly  identified,  the  description  was  not  vitiated  Ijy 
the  errors  as  to  locality  ami  distance. 
FieUUnij  et  al.  v.  MoH  el  al.,  G  R.  &  «.,  3.39; 

6C.  L.  T.,  491. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  affirming  the  judgment  of  the  Court 
below,  that  where  a  mining  lease  is  obtained 
over  private  lands  in  Nova  Scotia,  the  lessees 
must  obtain  from  the  owners  of  the  land  permis- 
sion to  entei'  either  by  special  agreement  or  in 
accordance  with  the  provisions  of  the  Mining 
Act,  4th  R.  S.  c.  9. 

Mining  leases  may  be  granted  in  all  districts 
whether  proclaimed  or  unproclaimed. 

A  mining  lease  is  not  invalid  because  it  in- 
cludes a  greater  number  of  areas  than  is  xn'ovideil 
by  the  Statute,  such  provision  being  only  direc- 
tory to  the  Commissioner.  The  issue  of  a  lease 
cures  any  irregularities  in  the  application  for  a 
license,  or  in  the  license  itself  in  the  absence  of 
fraud  on  the  part  of  the  licensee. 

Fieldinfi  et  al.  v.  Mott  et  al.,  14  S.  C.  R.,  •254, 

5.  Aspbaltum— Meaning  of  "Mines  and 

Minerals" — Asphaltum  is  included  in  tlie  ex- 
ception in  certain  royal  grants  in  the  Province 
of  Xew  Brunswick  of  "  all  coals  and  also  all 
gold,  silver,  and  other  mines  and  minerals. " 

The  words  "mines  and  minerals"  in  the 
exception  are  to  be  understood  in  their  popular 
and  ordinary,  and  not  in  tiieir  scientific  meaning. 

Trover  will  lie  in  this  Province  for  minerals, 
which  have  Ijeen  taken  from  a  mi*:d  out  of  the 
Province  and  removed  here. 

Genner  v.  Gan  Company,  James,  7-- 

6.  Forfeiture  of  mining  areas— Notice- 
Service  of— Intituling  aflidavits  and  rule  urn 
for  certiorari — Filing  affidavits — Proceedings 
were  had  before  the  Deputy  Commissioner  of 
Mines  at  Halifax  to  obtain  the  forfeiture  of  a 
mining  property  at  Montague,  owned  by  defen- 
dant. The  defendant  resided  at  Londonderry  anil 
had  agents  at  Montague,  but  no  service  of  notice 
was  made  on  either  him  or  them,  and  neither  he 


869 


MINING  LAW. 


870 


nor  they  knew  anything  of  the  proceedings  until 
iifttT  tlic  iirens  were  forfeited.  The  notice  was 
jKisted  l)y  a  person  wlx)  appeared  to  lie  interested 
in  procuring  the  forfeiture,  and  who  swore  that 
iicitlifr  Toliin  nor  any  agent  or  person  employed 
on  the  premises  coultl  he  found  in  the  tlistrict  on 
wlioin  personal  service  could  be  made.  The 
matter  heing  brought  up  by  artiorari, 

III  hi,  tiiat  in  order  to  disj>ense  with  perscmal 
service,  evidence  should  liave  been  given  of  a 
lionaMt  search  or  that  defendant  was  out  of  the 
Province. 

The  parties  applying  for  the  forfeiture  entitled 
the  process  below,  "  Th<i  (Jmtii  v.  Tohin," 

Htld,  that  the  applicant  had  a  right  to  use 
the  same  title  in  the  subsecpient  proceedings  in 
iliis  Court. 

A  rule  was  granted  to  compel  the  parties  sus- 
taining the  forfeiture  to  tile  their  affidavits  on  a 
(lay,  previous  to  the  hearing,  to  be  named  by 

the  Court. 

Quetn  V.  Tobin,  2  R.  &  (J.,  305. 

1.   Forfeiture  of  mining  areas— Notice  to 

mortgagee — Proceedings  were  taken  to  forfeit 
certain  gold  mining  areas,  and  the  notice  pursu- 
ant to  Statute  was  addressed  to  the  defendant, 
wlio  was  the  mortgagee  and  not  the  owner  of 
tlie  areas. 

Htld,  that  the  Commissioner    of  Mines  had 

no  jurisdiction  for  want  of  notice  to  the  owner. 

Queen  v.  Eke,  4  R.  &  G.,  130. 

8.  Forfeiture— Proceedings  to  forfeit  gold 

areas  —  Sufficiency  of  pleadings  —  The  Com- 
missioner of  Works  and  Mines,  to  an  action  of 
trespass,  pleaded  proceedings  taken  to  forfeit 
the  areas  in  question. 

Htld,  that  the  allegation  that  "no  person  could 
be  found  upon  whom  to  make  service  of  the 
notice  "  of  process  to  forfeit  was  sufficient  with- 
out alleging  that  no  person  could  be  found  in  the 
gold  district  within  which  the  areas  were 
situated,  and  that  a  plea  setting  out  the  proceed- 
ings taken  in  substantially  the  terms  of  the  Act 
was  sufficient. 

Wallace  v.  Creelman,  6  R.  &  G.,  546. 

9.  Injunction  to  restrain  from  working  or 

interfering  with  mine— Where  plaintiflFs  had 
brought  an  action  against  defendants  for  an 
alleged  tresp.-iss  on  their  mine,  and  it  appeared 
that  the  mine  was  within  the  limits  of  a  lot 
assigned  to  the  party,  under  whom  plaintiffs 
claimed,  on  a  survey  attended  by  all  the  parties 
then  interested  ;  that  the  lot  had  been  occupied 
from  that  time  by  the  plaintiffs  and  those  under 
whom  they  claimed,  by  consent  of  the  proprietor 


'  of  an  adjoining  lot,  under  whom  the  defendants 
i  claimed  ;  and  that  no  interruptiim  of  that  occu- 
pation had  been  attempted  for  a  [)eriod  of  nine 
'  years,  or  until  defendants  interposed. 

The  Court  refused  to  dissolve  an  injunction 
'  which  had  been  granted  on  tx  imrlc.  affidavits, 
;  on  behalf  of  the  plaintiffs,  to  restrain  the   de- 
fendants from  working  or  interfering  with  the 
mine. 

HamiltOH  ft  al.  v.  liroini  i.l  nl.,  '1  Old.,  260. 

10.  Jurisdiction  of  Commissioner  to  forfeit 

lease — Sufficiency  of  allegations — In  an  action 
brought  for  trespasses  to  plaintiff^s  mining 
areas,  defendant  justified  as  Commissioner  of 
Mines  under  a  forfeiture,  and  set  out  in  one  of 
his  pleas,  iutir  alia,  that  all  proceedings  recjuisite 
by  law  to  be  taken  to  effect  a  forfeiture  of  said 
lease  were  taken,  and  all  necessary  notices  set- 
ting out  defaults  and  breaches  were  duly  given, 
and  the  <lefendant  being  such  Commissioner  duly 
gave  judgment  forfeiting  said  lease  ...  in 
the  form  and  manner  prescribed  by  law. 

Held,  that  this  plea  did  not  set  out  with 
sufficient  particularity  the  steps  taken  to  give 
the   Commissioner  jurisdiction    to    forfeit    the 

lease. 
i  Wallace  v.  Creelman,  5  R.  &  G.,  418. 

I    11.  Lease— Contemporaneous  applications 

for  lease  of  mining  area. — Priority. — Appeal 
allowed  on  the  ground  that  material  point  was 
not  considered — After  investigation  before  the 
Connnissioner  of  Mines  to  <leterniine  which  of  a 
'  number  of  applicants  for  a  lease  was  entitled, 
'  the  Commissioner  decided  in  favor  of  one  O'Toole 
;  on  the  ground  of  priority.  The  several  appli- 
i  cants  were  all  present  at  the  Mines  Office  on  the 
morning  on  which  the  areas  were  presumed  to 
be  open  for  application,  an<l  on  the  market 
clock  commencing  to  strike,  a  struggle  took 
place  between  them  in  the  endeavor  each  to  be 
the  first  to  bring  his  application  to  the  notice 
of  the  Commissioner.  O'Toole  had  entered  the 
area  under  a  lease  from  Wallace  the  original 
lessee  and  the  present  appellant,  but  had 
claimed  that  the  agreement  between  himself  and 
Wallace  had  terminated  sometime  before  the 
application.  The  lease  was  in  writing  and  was 
not  put  in,  and  there  was  nothing  to  show  that 
the  proviso  for  terminating  it  was  one  of  which 
O'Toole  could  avail  himself.  The  Commissioner 
in  his  decision  intimated  that  he  had  nothing 
to  do  with  this  branch  of  the  inquiry. 

Held,  that  the  Commissioner  was  wrong  in 
deciding  the  matter  on  the  mere  question  of 
priority,  and  should  have  considered  the  point 
that,  as  the  holder  of  a  chattel  interest  under 
Wallace,  O'Toole  could  not  lawfully  do  any  act 


871 


MINING  LAW. 


872 


to  defeat  the  title  nf  his  lessor  ;  and  as  this  point 
had  not  been  considered  the  appeal  must  he  sus- 
tained with  costs. 

He.  Gold  Miniwj  Areax,  H^arerley, 

4  R.  &<i.,'2«0. 

12.  Lease -Forfeiture  of— Setting  aside- 
Notice  of  forfeiture — A  lease  of  certain  coal  areas 
granted  to  S.  was  declared  forfeited  by  the  Com- 
missioner of  Mines  on  the  ground  that  the  areas 
had  been  abandoned  and  not  etf'ectively  and  con- 
tinually worked  for  the  space  of  one  year.  IS. 
was  absent  from  the  prf)viuce  at  the  time  the  pro- 
ceedings M'ero  taken,  and  the  only  notice  given 
him  was  by  means  of  a  paper  posted  upon  a  cliff 
near  tlie  sua  siiore,  tlie  areas  being  under  water. 
Tlie  notice  was  defective  for  want  of  detiniteness 
tts  to  the  charges  against  S. ,  and  moreover,  there 
was  no  evidence  given  before  the  Conuniasioner 
that  the  Sheriff  wlio  posted  the  notice  had  made 
any  inijuiry  to  ascertain  wliether  there  was  any 
agent  or  person  employed  in  connection  with  the 
premises  upon  whom,  in  tlie  absence  of  S.,  the 
notice  could  have  been  served,  nor  was  any  evi- 
dence given  as  to  the  locality  of  the  cliff  upon 
which  tiie  paper  was  posted,  or  its  contiguity  to 
the  areas  in  ((uestion. 

Hdd,  that  the  preliminary  notice  being  de- 
ficient in  so  many  points  all  proceedings  founded 
upon  it  were  void,  and  therefore  the  forfeiture 
must  be  set  aside. 

In  re  Sword's  Lease,  li  N.  S.  1).,  389. 

13.  Lease-Forfeiture  of— Parties  seeliing 

forfeiture— Lachea—Tiie  relators  in  this  case 
souglit  to  have  a  lease  granted  by  the  Crown 
of  certain  gold  mining  areas  set  aside  on  tiie 
ground  that  it  had  been  granted  improvidently, 
and  in  derogation  of  relators'  rights.  They 
had  taken  out  a  lease  in  April,  1862,  but  were 
in  arrears  for  rent  thereon  in  February,  1863, 
when  a  new  lease  was  taken  out  and  some  rent 
paid  on  its  account,  but  none  of  the  rent  then 
overdue  paid.  After  working  on  the  areas  for  a 
month  all  operations  were  discontinued,  and  in 
October  of  the  same  year  the  Gold  Commissioner 
declared  the  lease  forfeited,  and  granted  the 
areas  to  other  parties.  This  lease  also  being 
forfeited,  another  lease  was  granted  to  third 
parties  in  1866,  aid  in  1868  the  relators  sought 
to  have  this  lease  set  aside,  alleging  that  they 
had  been  misled  as  to  the  law  by  the  Deputy 
Gold  Commissioner,  but  this  was  contradicted. 
Held,  that  the  relators  had  not  shown  any 
ground  for  the  lease  being  set  aside,  they  having 
forfeited  all  claim  to  the  areas,  and  that,  in  any 
event,  they  were  too  late  in  applying  for  relief. 
Queen  v.  Snoio  etal,,3  N.  S.  D.,  373. 


14.    Lease— Right  to  lease— Priority  of 

application  - 

On  appeal  to  the  Priin/  Council, 

Held,  that  4th  Kev.  Stats.,  c.  9,  contemplates 
the  grant  of  both  licenses  and  leases  in  all  dis- 
tricts, whether  proclaimed  or  unproclaimeil.  The 
first  applicant,  whether  for  u  license  or  u  leasf, 
is  entitled.  Applications  must  bo  made  in 
writing  to  the  Commissioner  or  Deputy  Com- 
missioner. A  licensee  is  entitled  to  a  leu^<u 
under  s.  4'2.  "  Occupying  and  staking  off"  is  not 
a  condition  precedent  to  all  leases  in  an  unpro- 

claimed  district. 

yot  reported  heloir. 

Molt  V.  Lock-hart,  8  App.  Cas.,  568; 

.-)2  L.  J.,  P.  C,  61. 

13.   License  to  search— Application  for- 

Deacription— 5th  R.  S.,  c.  7,  s.  39— The  appli- 
cati(m  for  a  prospecting  license  over  certain 
mining  areas  detiued  the  locus  :  "  Heginning  ut 
a  stake  marked  \V.  M.  L.,  standing  about  one 
mile  westerly  from  Malega  Lake,  in  the  County 
of  Queens."  At  tiie  time  the  application  was 
made  tiiere  was  no  stake  marked  as  described  at 
the  locality  indicated,  from  which  the  descrip- 
tion could  start,  but  a  stake  marked  as  described 
was  put  down  soon  afterward. 

Helil,  that  the  application  was  bad  as  not 
accurately  defining  by  metes  and  bounds  the 
lands  applied  for,  within  the  meaning  of  the 
Mines  Act,  oth  R.  S.,  c.  7,  s.  .S9. 

Per  McDonald,  J.— That  the  reference  hi  the 
Statute  to  a  description  by  metes  and  bounds, 
referred  to  metes  and  bounds  existing  at  tiie 
time  of  the  application. 

Quaere,  per  McDonald,  C.  J. — Whether  the 
stake  having  been  subsequently  placed,  the  appli- 
cation, in  the  absence  of  fraud,  was  valueless  as 
between  the  applicants  and  the  Crown. 

He  Maleija  Barrens,  ex  parte  McLeod, 

20  N.  S.  R.,  (8R.  &G.), -14. 

16.   License  to  search  assignable  —  A  11' 

cense  to  search  for  minerals  granted  under 
chapter  9,  R.  S.  {4th  series),  is  assignable. 

In  re  Milner's  Ajipeal,  2  R.  &  C,  tyil 

n.  Licenses  to  search-Only  four  valid 
licenses  can  be  granted  over  area — A  license 
to  search  for  minerals,  other  than  gold,  was 
granted  to  the  relators  under  Sec.  86  of  Chap. 
9,  4th  R.  S.,  to  expire  21st  May,  1874.  Previous 
to  iis  expiration,  four  other  licenses,  to  search 
over  the  same  area,  were  granted  to  the  relators, 
which  were  to  expire  respectively,  22nd  May, 
1875 ;  23rd  May,  1876  ;  26th  May,  1877  and  27tli 
May,  1878 ;  the  area  containing  only  four  and 
a  quarter  square  miles.     On  the  28th  of  May, 


873 


MINUTES  OF  JUDGE. 


874 


1877i  defendants  having  a  licenBe  to  search  over 
iin  urea  overlying  in  part  the  area  of  the  relators, 
iipplied  for  a  license,  which  was  afterwards 
granted,  to  work  one  square  mile  partially  over- 
lying and  including  within  its  boundaries  the 
area  under  license  to  search  to  the  relators.  An 
order  iiiti  having  l)een  taken  to  restrain  defend- 
ants from  interfering. 

J/(l(l,  that  over  the  area  of  four  and  a  quarter 
miles  first  above  referred  to,  not  more  than  four 
valid  licenses  to  oearch  could  be  granted  under 
R,  S.,  Caj).  9,  Sec.  91,  that  the  relators'  fifth 
license  to  search,  which  was  to  expire  May  27th, 
1878,  was  invalid,  and  that  on  the  28th  of  May, 
1877,  there  was  no  obstacle  to  the  defendants 
obtaining  the  license  to  work  granted  to  them. 

Oliittr  Dictum,  that  it  was  no  objection  to  the 
license  to  work,  tliat  it  was  taken  out  in  the 
name  of  one  only  of  the  defendants,  Fraser,  for 
their  joint  benefit,  all  the  defendants  having 
had  an  interest  in  the  licenses  to  search,  although 
taken  out  in  the  name  of  Fraser  only. 

Attornfy -General  v.  Fraxer  et  al, 

R.  E.  D.,275 

On  appeal  from  the  Judge  in  equity  to  the  court 
in  hanco, 

Iltld,  that  the  practice  of  the  office  was  wrong 
in  granting  more  than  one  license  to  search, 
villi  right  of  renewal,  to  the  same  party  over 
the  same  area,  that  on  this  ground  the  license 
to  search  relied  on  by  relators  was  invalid,  and 
that  without  respect  to  defendants'  title,  the 
injiuiction  must  be  refused,  but  without  costs, 
as  both  parties  had  acted  under  an  erroneous 
view  of  the  law. 

Attorney-General  v.  Fraser,  3  R.  &  C,  .Sol. 

18.  Partnership  —  Interest   in  mine  — 

Agreement  as  to— Evidence — 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  of  the  Supreme 
Court  of  Nova  Scotia,  that  in  a  suit  for  a  share 
of  the  profits  of  a  gold  mine  where  the  plaiutiflF 
relied  on  an  agreement  by  the  defendant  for  a 
transfer  of  a  portion  of  the  latter's  interest  in 
such  mine  for  valuable  consideration,  the  evi- 
dence was  not  sufficient  to  establish  a  partner- 
ship between  the  parties  in  the  working  of  the 
mine,  and  the  suit  was  dismissed. 

Unreported  below, 
Stuart  V.  Matt,  14  S.  C.  R.,  734. 

19.  Proclamation  of  gold  district— Pre* 

requisites  to  applications  for  area— Cochran's 
Hill,  Sherbrooke,  was  proclaimed  a  Gold  Dis- 
trict on  June  3rd,  1868.     On  the  13th  of  the  same 


month  the  relator,  not  being  awaro  of  the  pro- 
clamation, made  application  for  ten  areas,  in 
accordance  with  the  terms  of  chapter  25,  R.  S. 
(.Srd  series),  section  36,  describing  the  same 
by  metes  and  bounds.  Previous  to  this  several 
applications  for  areas  had  been  made,  but  none 
of  them  gave  a  description  of  the  areas  applied 
for  by  metes  and  bounds.  On  the  19th  June, 
the  areas  in  question  were  located  and  given  to 
defendant. 

ffdd,  that  something  more  than  a  mere  pro- 
clamation is  required  before  applications  for  areas 
can  be  made  under  any  other  section  of  the  Act 
than  section  36.  Areas  must  be  laid  ofif  in  a 
particular  way — plans  prepared,  &c. 

Held,  alio,  that  the  application  of  the  relator 
was  made  so  in  accordance  with  the  spirit  and 
provisions  of  the  Act,  as  to  give  him  a  right  to 
claim  a  lease  as  against  prior  applicants  whose 
applications  failed  to  comply  with  the  provisions 
of  the  law. 

Per  Wilkins,  J. — The  defendant  being  in  {ws- 
session  under  lease  from  the  Crown,  is  not  to  be 
regarded  as  a  trespasser  or  intruder  on  the  lands 
of  the  Crown. 
Attorney-General  v.  McDonald,  2  N.  S.  D.,  125. 


MINOR,  DEED  BY- 
'S'ee  DEED,  35. 


MINUTES  OF  JUDGE. 

1.  Appeal  flrom  reftisal  of  Judge  of  County 

Court  to  amend  his  minutes — 

See  AMENDMENT,  IV.,  3. 

2.  Are  conclusive  as  to  the  eridence- 

Halifax  Banking  Company  v.   Worrall  et  al. , 

4  R.  &  G.,  482. 

3.  Certiorari  set  aside  where  taiien  on 

ground  that  Judge  of  County  Court  had 
refused  to  take  down  certain  evidence— Court 
refused  to  amend  the  minutes — 

See  CERTIORARI,  59. 

4.  Counsel  moving  on  bis  own  notes  of 

trial,  in  the  absence  of  the  Judge's  minutes, 
must  verify  them  by  affidavit. 

Stephenson  v.  Dulhanty,  James,  339. 

5.  Duty  of  Judge  to  report  charge  in 

minutes — 

See  JUDGE,  4. 


875 


MONEY  COUNTS. 


876 


6.  Evidence  put  In  below,  but  not  re- 
ported up— 

Sef.  EVIDENCE.  54. 

7.  Eiplanatlon  of  minutes  by  Judge  given 

to  Court  on  argument — 

Ste  JPD6B,  5. 

8.  Motion  for  new  trial  must  be  on 

Judge's  Iminutes  —  The  Court  will  not  uUow 

counsel  to  move  for  new  trial  upon  leave  granted 

upon  circuit,  except  on  Judge's  minutes  of  trial. 

Copp  V.  Etttr,  James,  304. 


MI8DEMEANOK8- 
Ste  CRIMINAL  LAW. 


MISDIRECTION- 
See  NEW  TRIAL. 


MISFEASANCE- 
See  NBOLIGENCE-TRESPASS. 


MISREPRESENTATION- 
See  FRAUD  AND  MISREPKESENTATION. 


MONET  COUNTS. 

1.    Accommodation    note  -  Recovery  of 

money  paid  to  retire,  under  common  counts 
for  money  paid  —  Plaintiff,  O'C,  brought  an 
action  to  recover  from  defendants,  W.  and  E., 
money  paid  to  retire  an  accommodation  note  for 
$6.38.17,  made  by  O'C.  in  favor  of  W.,  and  in- 
dorsed by  W.  and  E.,  and  negotiated  by  E., 
dated  January  9,  1874,  the  declaration  contain- 
ing the  common  coinits  and  a  count  on  a  guar- 
antee. The  note  was  afterward  renewed  for 
$4.S8,  April  13th,  1874,  plaintiff  having  paid  the 
difference,  and  a  memorandum  was  produced 
dated  April  13th,  1874,  signed  by  both  W.  and 
E.,  certifying  that  the  $438  note  was  mere 
accommodation  to  E.,  but  at  the  maturity  of  the 
note  for  $438,  plaintiff  was  obliged  to  retire  it. 


Defendant  E.  withdrew  his  pleas  at  the  trial. 
Defendant  \V.  admitted  signing  a  paper  dated 
May  10th,  1873,  certifying  that  a  note  for  *77S 
of  that  date  was  made  by  plaintiff  for  aceoiiuno- 
dation,  and  that  ho,  \V.,  was  to  pay  the  same 
without  recourse  to  plaintiff.  W.  admitted  alno 
that  the  origin  of  the  note  for  $038. 17  was  a  noto 
for  $778  or  $780,  but  thought  that  the  memoran- 
dum of  May  10th,  1873,  referred  to  a  different 
note  from  the  one  last  mentioned.  The  jury 
found  that  the  $778  noto  referred  to  in  the 
memorandum  of  May  10th,  1873,  was  the  origin 
of  the  transaction  out  of  which  the  suit  arose, 
the  $0.38.17  note  and  the  $438  note  being  simply 
renewals  of  the  $778  note,  and  the  jury  found 
for  plaintiff  for  amount  claimed. 

Held,  that  the  evidence  of  the  memorandum  of 
May  10th,  1873,  was  admicsible,  that  the  liability 
of  W.  under  that  undertaking  was  not  dis- 
charged by  the  fact  that  both  he  and  E.  after- 
wards signed  a  certificate  inconsistent  with  it, 
and  that  the  verdict  could  be  upheld  under  tiie 
conunon  counts  for  money  paid. 

O'Connor  v.  Wallace  et  al.,  1  R.  &  C,  92, 

2.  Account  stated  —  Memorandum— Con- 
sideration—Promise  to  pay  the  debt  of  another 
— Plaintiff  had  a  claim  against  defendant  anil 
had  also  a  claim  against  defendant's  brother. 
Defendant  having  agreed  to  assume  both  debts 
signed  a  memorandum  as  follows  :  "  1881,  Oct. 
21.  To  balance  per  settlement  at  this  date  §S0. 
I  acknowledge  the  above  amount  to  be  correct, 
and  promise  to  pay  it  forthwith." 

ffeld,  that  an  account  stated  must  be  in  rela- 
tion to  an  antecedent  debt  or  dealings  betMeeu 
the  parties,  and  so  far  as  the  account  against 
the  brother  was  concerned,  it  was  not  so.  An 
account  stated  cannot  be  made  out  of  an  original 
contract. 

A/w,  that  to  enable  plaintiff  to  recover  as  on 
an  original  contract,  consideration  for  assuming 
the  brother's  debt  should  have  been  shown. 

Fraser  v.  McLeod,  6  R.  &  O.,  286; 
6  C.  L.  T.,  452. 

3.  Account  stated— To  make,  not  sufficient 

merely  to  strike  balance — Defendant  made  a 
note  of  hand  to  S.,  which  was  indorsed  to  plain- 
tiff, who  received  |>ayments  on  account  of  it 
from  time  to  time  from  the  indorser.  Defen- 
dant made  no  payments,  but,  after  six  years 
from  the  date  of  the  note,  made  a  new  note  to 
plaintiff  for  the  balance  due  on  the  original  note, 
the  stamps  on  which,  bearing  date  identical  witli 
the  date  of  the  note,  was  for  the  single  duty,  and 
was  affixed  by  plaintiff  on  the  day  subse(j(uent  to 
the  delivery  of  the  note  to  him. 


877 


MONEY  COUNTS. 


878 


Hfld,  that  the  Rtaniping  wan  inaiittkiont,  and  {  A  pe<llar  was  informed  that  he  would  not  Im 
thiit  the  note  uouhl  not  l>e  received  on  the  trial  |  allowed  m  sell  oil  in  the  town  of  Dartmouth 
M  M\  licknowledgment  to  take  the  caHO  out  of  without  a  license,  and  rather  than  stop  his 
tliu  Statute  of  Limitations,  that  the  payments  business  or  contest  the  righl  ho  paid  the  fee. 
liy  the  indorser  did  not  inure  to  prevent  the  The  County  Court  Judge  held  that  the  money 
upcriition  of  the  Statute  as  against  the  maker,  i  having  been  paid  voluntarily  could  not  be 
mill  that  the  more  striking  of  a  balance  as  be-  j  recovered. 

twven  tlie  parties  did  not  constitute  an  account       Held,  reversing  this  judgment,  that  the  money 
Btivtcil  to  take  the  case  out  of  the  Statute.  could  lio  recovered  back  under  the  count  for 

McFatridijt  v.  Hunter,  3  R.  &  C. ,  289.  j  money  liad  and  received. 

Hancock  v.  Town  of  Dartmotith, 

2  R.  k  (!.,  129. 


4.  Action  for  money  paid  —  PlalntllTs 

assignor  giving  note  for  defendant's  benefit 
—  liarHay  v,  (looch  —  Plaintiff's  assignor  gave 
his  promissory  note  for  the  amount  of  a  pro- 


7.    Court  will  not  aid  partj  to  recover 

money  paid,  in  fVaud  of  creditors,  to  third 
initiiii  on  a  policy  of  marine  insurance  on  a  |  party — In  /mri  delicto — In  an  action  for  money 
vcxscl  of  which  said  assignor  and  the  defendant  ,  had  and  received,  the  defendant  pleaded,  by  way 
witli  otiicrs  were  part  owners.  The  note  M'as  i  of  set  off,  a  promissory  note  given  by  plaintiff 
never  paid  and  the  policy  stipuliited  that  in  the  '  to  defendant.  From  the  evidence  it  was  appar« 
event  of  the  premium  not  being  paid  the  com-  |  ent  that  tlie  transactions  between  tlie  parties  out 
Jinny  might  cancel  it.  Plaintiff  as  assignee  in  j  of  which  the  present  cause  of  action  arose  were 
Ihinkiiiptcy  sued  tlie  defendant  for  his  share  of  intended  to  defraud  the  creditors  of  plaintiff,  and 
the  premium  as  money  paid.  i  the  plaintiff  and  defendant  were  in  pari  delicto. 

//t/'/,  that  whatever  might  bo  plaintifTs  rights  '  Htld,  that  such  being  the  case,  the  plaintiff 
Imil  tiie  note  been  accepted  as  a  payment  and  ;  should  not  be  aided  by  the  Court  in  enforcing  his 
tlie  defendant  releosed,  there  could  be  no  action  [  contract,  and  the  verdict  for  him  must  be  set 
for  money  paid  in  the  present  case.  |  aside. 


V.    Oooch,  2  Ksp.,  571,   dis- 


liarclay  tt  al. 
tingiiished. 

Lickie  V.  Bknkhom,  3  R.  &  (».,  387  ; 
3  C.  L.  T.,  43. 


Blake  v.  Stewart,  2  N.  S.  D.,  70. 


8.    Money  deposited  with  betting  agent- 
Action  for— Joinder— Payment  made  jointly 
_      .    ..       ^  ,.        ,       but  from    individual    funds — An  action    was 

5.  Action  to  recover  money  paid  under  ,       ,.  .    „      „„  o,nn  „i„    i  i    ^i. ;„♦;»;„ 

...       „        ,    ,         /.  /     1       i  i •         J,  .  brought  to  recover  SilOO,  placed  by  plaintiff  in 

mistake— Knowledge  of  facts  at  time  of  pay-   .,,     ,      ,      ,  ^,      ,  r     i   \  r     .u  c 

L     ,..  .     ..^       ,   ,  r     ,     .    •  ..         .    .      the  hands  of  the  defendant  for  the  purpose  of 

ment—rlaintiff  and  defendant  m  settling  their    ,    ^,.  ,      .  n^u    i   ^  i     ■ 

,_  .  , .      ,     .  r     ,    .  ,  .        betting  on  a  boat  race.     1  he  bet  was  made  in 

uttiiira  on  dissolution   of   iheir   co-partnerslup,  ,  ^,        ,.,.«.,  i    ^   ., 

,   .  .       ,         ,  .  ,    .  the  plaintiff  s  na-^\e,  but  the  money  was  con- 

entereil  into  an  accounting   by   which   it  was    ,  .,   '    ,  ,  ,        ^.      •  ,,  , 

,  ,        ,..«.,,,  ^„,„  ■>„  f         I     '  tributed  by  several  i-arties  in  small  sums,  and, 


shown  that  plaintiff  had  drawn  .?318.86  from  the 
pivrtnersliip  funds  in  excess  of  the  sum  drawn  by  ; 
ilefeiuhiiit,  which  defendant  contended  was  due  ' 
from  plaintiff  to  him,  but  which  plaintiff  insisted  ' 
was  due  to  the  partnership,  so  that  only  half  : 
the  amount  was  due   to  defendant.     I'laiiitiff 
finiUly  yielded  to  defendant's  contention,  and  paid 
over  the  money.     Becoming  satislied  afterwards 
that  his  own    view   was  correct,    he    brought 
action,  after  the  lapse  of  about  a  year,  to  recover 
the  amount  improperly  paid  over. 

Held,  that  having  paid  over  the  money  with  | 
full  knowledge  of  the  facts,  the  very  point  now 
m  controversy  having  been  discussed  at  the 
settlement,  the  plaintiff  could  not,  after  the 
lapse  of  a  year,  during  which  he  had  carried  out  | 
m  all  respects  tho  settlement  agreed  upon,  apply 
to  have  tiie  mistake  corrected. 

Mitener  v.  Oanton,  R.  E.  D.,  125. 

6.    Count  for  money  had  and   received 

to  recover  money  p.aid  under  compulsion  — 


although  no  arrangen.ent  was  made,  plaintiff 
stated  in  his  >.vidence  tl.at  several  parties  were 
interested  to  their  respeotiv  •^  amounts,  and  if  he 
had  won  they  would  have  expcited  their  money, 
and  he  would  have  l)een  obliged  to  pay  them. 
Plaintiff  countermanded  the  bet  before  the  de- 
fendant parted  with  the  money,  and  there  was 
no  clear  evidence  to  show  that  defendant,  as 
betting  agent  for  plaintiff,  had  become  bound 
before  the  bet  was  so  countermanded. 

Held,  that  the  contributors  could  not  sue 
jointly,  but  that  plaintiff  was  entitled  to  recover 
back,  not  the  whole  amount,  but  only  his  own 
share  of  the  money  deposited,  for  which  judg- 
ment must  be  entered  in  the  court  below. 

i?o.s.«  V.  Harri'ii/ton,  3  R.  &  G.,  .325; 
3C.  L.  T.,44. 

9.    Money  had  and  received— Findings  of 

jury — Defendant  took  a  mortgage  for  $11,402 
from  one  John  Werner  on  certain  gold  mining 


879 


MONEY  COUNTS. 


880 


property,  and  signed  a  memorandum  acknow- 
ledging that  in  the  mortgage  was  included  a 
debt  of  1500  due  by  Werner  to  plaintiff,  to  be  a 
second  charge  after  defendant's  debt.  Plaintiff 
testified  that  defendant  afterwards  told  him  that 
he  had  received  $7469.18  in  payment  of  the  gold 
mining  property,  and  promised  to  pay  plaintiff 
the  $500  mentioned  in  the  memorandum.  The 
defendant  denied  this  admission,  but  the  jury 
found  for  plaintiff. 

Held,  that  under  the  evidence  the  plaintiff 
could  recover  on  a  count  for  money  had  and  re- 
ceived, and  that  the  verdict  could  not  be  dis- 
turbed. 

UNoir  V.  Wallace,  1  R.  &  C,  247. 

10.  Monej  paid— Action  for— Defendant, 

by  letter  dated  at  Sydney,  C.  B.,  asked  the 
plaintiff  to  send  him  a  specified  quantity  of 
liquor  in  bond  which  plaintiff  accordingly  did, 
executing  a  bond  in  the  usual  way  under  the 
Customs  Act  of  1867,  conditioned  to  deliver  the 
goods  without  alteration  or  diminution  at  the 
Port  of  Sydney  within  ninety  days.  The  goods 
were  shipped  under  a  bill  of  lading  by  which  the 
master  undertook  to  deliver  them  at  the  Port 
of  Sydney  Bar,  w-hich  although  in  the  same 
harbor,  is  a  different  port  from  that  of  Sydney. 
The  goods  were  never  entered  and  plaintiffs 
were  obliged,  under  their  bond,  to  pay  the 
duties. 

Held,  that  the  request  of  the  defendant  in  his 
letter  was  to  be  understood  as  a  recjuest  that 
plaintiff  shouhl  enter  into  the  bond  ;  that  plain- 
tiff could  recover  on  a  count  for  money  paid, 
without  proof  of  any  subsequent  request,  and 
that  it  was  no  objection  that  the  bill  of  lading 
made  the  goods  deliverable  at  Sydney  Bar,  as 
the  defendant  could  have  paid  the  duties  at 
Sydney  and  had  them  landed  at  the  Bar. 

Fooler  tt  al.  V.  Lamie,  3  R.  &  C,  269. 

11.  Money  paid  by  mistalte— Liability  to 

refund  —  Privity  —  R.,  of  Yarmouth,  having 
consigned  fish  to  Antigua,  instructed  his  agents 
to  transmit  proceeds  by  cable  to  tlie  Bank  of  B. 
N.  A.  in  Halifax.  The  agents,  tlirough  their 
ckik,  applied  to  plaintiff  bank  for  a  cable 
draft  for  §.S,0(tO  on  New  York,  for  which  they 
gave  their  own  cheque,  and  received  an  order  in 
cyj)lier  to  Maitland,  Phelps  &  Co.,  in  New 
York,  to  pay  the  amount  to  credit  of  Rogers  to 
tlie  Bank  of  B.  N.  A.  The  latter  bank  then, 
with  the  consent  of  Maitland,  Phelps  &  Co., 
communicated  with  tlie  defendant  bank  that 
their  account  "was  credited  with  $3,000,  pay- 
ment by  Maitland,  Phelps  &  Co.,  advised  from 
Colonial   Bank  of  Antigua,   account  Rogers." 


The  defendant  bank  at  once  charged  the  amount 
to  the  New  York  agency  of  the  Bank  of  B.  N. 
A. ,  and  credited  the  amount  to  Rogers  on  ac- 
count of  overdue  bills. 

Held,  that  although  the  money  had  come  into 
the  hands  of  the  defendant  bank  owing  to  tlie 
mistake  of  Rogers'  agent  in  not  transmitting  the 
money  to  the  Bank  of  B.  N.  A.  at  Halifax,  as 
instructed,  the  plaintiffs  had  no  title  to  it,  hav- 
ing been  paid  by  Rogers'  agent  for  their  draft, 
and  not  being  liable  to  return  the  money. 
The  Colonial  Bank  v.  The  Exchange  Bank; 

5  R.  &  G..  215. 

On  appeal  to  the  Privy  Council, 

The  plaintiff  bank,  being  under  instructions 
from  R.  to  remit  his  moneys  to  a  bank  at  Hali- 
fax, through  the  mistake  of  its  agents,  piiiil 
them  to  a  New  York  bank  for  transmission  to 
the  defendants,  who,  on  being  advised  thereof, 
debited  the  New  York  bank,  and  credited  R.  in 
account  with  the  amount  thereof :  and  l)eing 
afterwards  advised  of  the  mistake,  claimed  to 
retain  and  use  the  moneys  in  reduction  of  R.'s 
account  with  them. 

Held,  that  on  being  advised  of  the  mistake, 
the  defendants  were  bound  to  repair  it,  iiml 
that  the  plaintiff  bank  had  a  sufficient  interest 
in  the  moneys  to  recover  them  as  moneys  re- 
ceived to  their  use. 

Colonial  Bank  v.  Exchamje  Bank  of  Yarmouth, 
L.  R.,  11  App.  Gas.,  84. 

12.  Money  paid— Recovery  of  considera- 
tion for  notes  on  count  for  money  paid— 
The  notes  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  plaintiffs  could  not  recover 
on  the  notes  they  could  recover  on  the  count  for 
money  paid,  which  was  the  original  considera- 
tion. 

Sotilhtr  ct  al.  v.  Wallace  et  al.,  20  N.  S.  R., 

(8  R.  &  G.),  509. 

Aftirnted  on  appeal  to  the  Supreme  Court  of 
Canada,  Wallace  v.  Sou/her,  9  C.  L.  T.,  210. 


13.  Money  paid  under  mistalic  of  facts- 
Want  of  knowledge  of  the  facts  must  be 
pieaded  and  shown — Judgment  was  given  in 
the  plaintiff's  favor  in  the  County  Court  in  an 
action  to  recover  a  sum  of  money  paiil  on  a 
contract  for  the  purchase  and  sale  of  a  qu.mtity 
of  trees,  which  it  was  alleged  defendant  hail 
failed  to  deliver. 

The  sale  of  trees  was  made  in  August,  18$'2; 


881 


MONEY  COUNTS. 


882 


they  were  shipped  to  plaintiff  in  November  of 
the  same  year,  bnt  were  never  received  by  him. 
The  defendants  were  partners  at  the  time  of  sale, 
but  dissolved  partnersliip  in  November  or  De- 
cember, 1883. 

Plaintiff  alleged  that  he  had  paid  defendant 
$•280,  on  January  '2nd,  1884,  but  the  only  pay- 
ment appeared  to  have  been  by  setting  off  pri- 
vate debts  due  by  King,  one  of  the  partners  to 
plaintiff  against  the  price  of  the  trees.  It  was 
urged  on  behalf  of  the  plaintiff  at  the  argument 
but  not  pleaded,  that  at  the  time  he  paid  the 
money  lic  had  no  knowledge  of  the  failure  to 
ship  the  trees. 

HM,  that  the  plaintiff  in  order  to  recover 

must  show  that  he  was  not  aware  at  the  time 

lie  j)aid  the  money  of  the  failure  to  ship,  and  that 

there  must  be  a  new  trial  with  leave  to  plaintiff 

to  anund. 

Culhert  v.  McKeen  et  nl.,  20  N.  S.  R., 

(8  R.  &  G.),  1. 

14.  Money  received— Action  for— By  a 

bill  of  lading,  a  certain  (juantity  of  lumber  was 
stated  to  be  shipped  by  C.  &  J.  M.  &  Co.,  the 
plaintiffs,  on  board  bngantine  "Annie"  (the 
property  of  plaintiffs)  lying  at  Port  Medway, 
bound  for  Demm na,  to  be  delivered  to  defend- 
ant or  his  assij^us.  Together  with  the  bills  of 
l.uling,  defendant  received  a  letter,  instructing 
him  to  sell  the  cargo  and  remit  proceeds  to 
T.  &  C.  J.  &  Co.,  to  credit  of  account  of  plain-  , 
titl's.  The  letter  was  unsigned,  out  there  was 
evidence  that  it  had  bee)i  written  for  and  on 
account  of  plaintiffs  alone,  and  it  was  indorsed, 
"letter  from  C.  &  J.  M.  &  Co."  There  was 
conflicting  evidence  as  to  the  property  in  the 
(.'oods,  the  weight  of  evidence  preponderating  j 
for  plaintiffs,  who  had  purciiased  the  lumber  , 
from  C.  it  S.,  and  the  invoice  accompanying  tiie  ; 
bill  of  lading  and  letter  oi  instructions  was 
liciuled  "  invoice  of  cargo  of  lumber  sliipped  by 
('.  &  S.,"  etc.,  and  was  signed  by  C.  &  S.  IJe- 
fciidunt  sold  the  cargo  and  remitted  tlie  proceeds 
to  C.  &  S. ,  and  action  was  brought  by  plaintiffs 
on  tlie  common  counts  as  for  money  received  to 
their  use. 

fJdil,  that,  after  the  sale,  the  defendant  held 
the  proceeds  for  the  benefit  of  the  plaintiffs,  and 
in  remitting  them  to  C.  &  S.  did  so  in  his  own 
wrong,  and  that  the  verdict,  which  was  for 
ilefcndant,  should  be  set  aside. 

Morton  €t  al.  v.  McLtoil,  1  R.  &  C,  71.  ! 

i 

15.  Money  received-  Action  for,  against  I 

Sheriff— Plaintiffs  iiaving  recovered  a  judgment 
and  issued  an  execution  against  the  judgment  I 
debtors  were  about  bringing  action  against  the  | 


defendant,  the  Sheriff,  for  negligence  in  the 
execution  of  the  writ,  whereupon  defendant,  by 
his  attorneys,  wrote  plaintiffs,  asking  permission 
to  be  allowed  to  issue  .">n  execution  against  the 
debtors  in  order  that  the  Sheriff  "  might  be  able 
to  find  sufficient  property  to  save  himself  from 
loss." 

Plaintiffs  gave  the  permission  to  defendant  to 
issue  the  execution  "on  his  own  responsibility 
and  to  be  considered  totally  irrespective  and 
apart  from  the  suit  we  are  now  about  to  bring 
against  the  Sheriff."  The  execution  was  accord- 
ingly issued  and  ^200  collected  which  the  Sheriff" 
declined  to  pay  over  until  the  suit  for  damages 
was  determined.  An  action  was  brought  for 
money  had  and  received. 

Held,  that  the  verdict  for  defendant  must  be 
sustained. 

Per  Weatherbe,  J.  —  That  under  the  cor- 
respondence the  money  collected  was  to  be 
held  for  the  purpose  of  indemnifying  the  defend- 
ant from  loss  in  the  proceedings  to  be  taken 
against  him,  and  that  until  the  matt<  r  was 
settled  plaintiffs  were  estopped  from  rlaiming 
the  money  so  collected. 

Bank  of  British  Xorth  America  v.  Btll, 

4R.  &(i.,  121. 


16.     Recovery  on  common   counts   for 

money  paid  where  party  could  not  recover 
on  agreement  not  complying  with  Statute — 
Plaintiff,  who  had  purchased  defendant's  stock 
in  trade  and  leased  his  premises  at  S.,  gave  de- 
fendant his  note  for  §200  in  consideration  that 
defendant  would  sell  the  good  will  of  his  busi- 
ness to  plaintiff,  and  would  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  S.  and  set  up 
business  there,  so  as  to  interfere  with  plaintiff. 
Hdil,  that  while  plaintiff  could  not  recover 
for  breach  of  this  agreement,  not  l)eing  in 
writing,  and  not  to  be  performed  witliin  (me 
year,  he  could  recover  under  tlie  common  count 
for  money  paid,  and  that  his  verdict  for  !?200 
must  be  sustained. 

Meek  v.  Gass,  2  R.  &  C,  243. 


17.    Sale  of  lands— Recovery  of  consider* 

ation  on  failure  to  complete — Evidence  — 
In  order  to  recover  back  money  paid  l)y  plaintiff, 
under  an  agreement  for  sale  of  lands  to  him,  on 
the  ground  of  failure  of  consideration,  plaintifT 
must  give  evidence  of  the  terms  of  the  agree- 
ment. 

McDonald  v.  McDonald,  James,  41. 


S83 


MORTGAGE. 


884 


MORTGAGE.  ; 

1.  Administratrix   with  will  annexed,' 

purchase  of  real  estate  by,  when  personal ; 
assets  of  testator  sufficient  to  pay  off  incum-  I 
brance— Subsequent  parol  agreement  to  sell  i 
part  of  said  land  null— Compensation  money  | 
for  land,  right  to  and  how  to  be  treated — 4th  ' 
R.  S.,  c.  36,  s.  40—  i 

See  CONTRACT,  S.  ' 

i 

2.  Amount  due  on  mortgage  -Calculation  | 

of,  where  other  dealings — A.  held  tliree  mort-  i 
gages,  amounting  to  £6tK),  of  property  tlie  e<iuity  ' 
of  redemption  in  wluuh  was  purchased  by  IJ.  in  i 
1814.  There  were  various  dealings  between  A.  j 
and  B.,  who  were  brothers— cash  paid  by  B.  to  '■ 

A.  and  cash  advanced  by  A.    to  B.,  and   also  i 
professional  accounts  by  A.  against  B.,  but  no  j 
regular  account  made  till    18,3.3.     In  that  year 
an  account  of  all  transactions  between  A.  and 

B.  since  1814  was  made  and  signeil  by  B.  This 
account  commenced  l)y  charging  B.  with  a  balance 
of  £40  due  by  him  to  A.  in  1814,  and  in  the  debits 
of  that  year  B.  was  also  charged  witli  £900  as 
the  amoimt  due  by  liim  on  the  mortgages.  The 
payments  made  by  B.  were  regularly  credited 
in  each  year,  and  the  professional  items  and 
advances  charged  against  him.  The  Ijalance 
was  struck  once  a  year  anil  was  made  to  bear 
interest.  Interest  was  allowed  on  eauli  pay- 
ment from  its  date  and  interest  on  the  charges 
was  debited  only  from  the  close  of  the  yearly 
accounts.  On  the  account  tlnis  adjusted  and 
settled  in  1833,  tiiere  was  a  balance  against  B. 
of  £1400.  A.  agreed  to  take  certain  lands  from 
B.  at  the  price  of  £.5(X).  A.  also  agreed  to  de- 
duct £100.  The  balance  was  tlius  reduced  to 
£800.  B.  acknowledged  this  balance  to  be 
correct  and  promised  to  pay  it.  By  a  subse- 
<|uent  memo.  A.  agreed  to  give  up  a  further  sum 
of  £M  leaving  tiie  balance  £750.  In  1834  the 
three  mortgages  were  assigned  to  plaintiff  as  a 
security  for  £i)(JO,  and  no  subsequent  payments 
appeared  to  hax-e  been  made.  In  1854  a  bill  was 
filed  to  foreclose  tliese  mortgages,  and  on  the 
<leath  of  tiie  plaintiff  was  revived.  Decree  was 
)iad  for  plaintiff  and  the  Master  was  ordered  to 
report  tlie  amount  due  on  the  mortgages.  The 
Master  finally  made  report  in  wliich  certain 
sums  were  credited  as  having  been  paid  in  dis- 
charge of  the  mortgage,  and  us  to  certain  other 
sums  also  claimed  to  iiave  been  paid  in  discharge 
thereof,  reported  that  he  could  not  decide  there- 
on and  returned  the  evidence. 

Held,  tiiat  it  remained  for  tiie  Court  to  make 
that  certain  whicli  the  Master  had  left  unsettled. 

Held,  uIko,  that  the  balance  £7.50  ought  to  be 
considered  as  consisting  of  the  sum  of  £690  for 


principal,  and  £60  for  interest  on  the  niortgages, 

and    that    therefore   plaintiff   was  entitled  to 

£7.50,  and  interest  on  £690  from  18.33  to  time 

of  sale. 

Uniacke  v.  Brundiije  el  al. ,  2  Thom. ,  57. 

3.  Assignee  under  Insolvent  Debtors'  Act 

—  Liability  of— Surplus  proceeds  —  Adverse 
possession — The  claim  of  an  assignee  of  the 
equity  of  redemption  in  mortgaged  premises  for 
surplus  proceeds  remaining  after  the  sale  of 
premises  on  foreclosure  of  the  mortgage,  is  not 
barred  by  a  twenty  years'  possession  of  the 
premises  l)y  the  assignor,  who  claims  under  the 
mortgagor,  the  mortgagee  having  by  tlie  fore- 
closure suit  asserted  a  paramount  claim  to  tiie 
possession,  and  the  premises  being  sold  uiider 
that  claim. 

Semble,  the  possession  of  the  assignor  of  an 
equity  of  redemption  is  not  adverse  to  the  as- 
signee, unless  shown  to  l)e  in  opposition  to  iiis 

will. 

Collins  V.  Reid  et  al.,  2  Old.,  252. 

4.  Bond  accompanying  mortgage-Mort- 
gagor sells  equity  of  redemption— Foreclosure 

—  Action  on  bond  —  Parties — Defendant,  a 
member  of  the  Nova  Scot!.'.  Building  .Society, 
obtained  an  advance  and  gave  his  mortgage  and 
bond,  after  which  lie  sold  his  equity  of  redemp- 
tion, and  a  suit  was  brought  to  foreclose  tlie 
mortgage  without  making  him  a  party  or  giving 
liiiu  notice.  The  land  was  bouglit  in  by  the 
Society  for  a  sum  less  than  the  costs  in  tlie  fore- 
closure suit.  An  action  was  then  brought 
against  the  defendant  on  his  bond.  An  ecjiiit- 
able  plea  was  pleaded,  under  whicli  defeniUint 
gave  evidence  tliat  the  Secretary  of  the  Society, 
upon  defendant  asking  for  a  release  of  his  l)onil, 
replied  that  it  would  be  a  good  deal  of  expense 
and  nothing  would  ever  come  against  him,  luid 
no  application  was  thereafter  made  to  him  iot 
dues  or  fines,  the  notices  being  sent  to  the  pur- 
chaser. 

Held,  that  the  Secretary  liad  no  power  to 
make  the  arrangements  alleged,  to  which  llie 
Directors  had  not  assented,  and  that  tlie  defen- 
dant, being  a  member  of  the  Society,  was  bound 
to  know  the  limits  of  the  Secretary's  authority ; 
that,  although  the  rules  of  the  Society  restricted 
them  to  the  advancing  of  money  upon  real  estate 
security  there  was  nothing  to  prevent  them 
from  taking  the  defendant's  bond  in  additimi, 
even  if  tliey  could  not  take  the  bond  of  a 
stranger.  That  the  fact  of  a  sale  under  foreclo- 
sure did  not  prevent  the  Society  from  suing  on 
the  bond,  so  long  as  they  liehl  the  land.  That 
tlie  decree  against  the  defendant  could  uot  in- 


885 


MORTGAGE. 


886 


cliule  the  costs  of  the  foreclosure  suit,  to  which 
he  was  not  a  party,  but  that  he  was  not  entitled 
to  credit  for  the  proceeds  of  the  foreclosure  sale, 
as  they  did  not  amount  to  the  costs  in  that  suit, 
and  that  the  trustees  were  the  proper  plaintiffs. 
Almon  et  al.  v.  liu'«:h,  R.  E.  D.,  .362. 

5.  Consideration  for,— Contemplation  of 

insolvency— Plaintiffs,  as  assignees  under  the 
Insolvent  Act,  sought  to  have  certain  mortgages 
decreed  to  he  void,  which  were  made  by  the 
defendant  Smith,  within  thirty  days  of  demand 
made  on  him  to  assign,  followed  l)y  an  assign- 
ment. The  evidence  was  conflicting,  but  the 
Court  drew  from  it  the  inference  that  .Smith 
finding  liimself  in  difficulties,  applied  to  the 
Iknk  for  ?.S,(X)0,  in  the  belief  tluit,  if  obtained, 
it  would  enable  him  to  arrange  with  his  more 
pressing  creditors  and  avert  the  insolvency  which 
must  otherwise  ensue  ;  that  the  agent  of  the 
Bank  first  led  him  to  believe  that  the  advance 
would  be  made,  but  the  directors  refused,  and, 
instead  of  making  the  advance  reiiuired  tiie 
mortgages  to  secure  existing  liabilities  ;  tiiat 
defendant  consented  to  make  them,  encouraged 
by  tlie  agent  to  believe  ihat  if  he  did  so  further 
actomniodation  would  be  afforded,  but  the  Bank 
hining  secured  itself  and  considering  the  further 
acconunodation  could  not  safely  be  afforded, 
declined  to  make  any  further  advances  and  in- 
solvency ensued,  as  Smith  had  anticipated.  At 
tlie  time  the  mortgages  were  given,  the  insolvents 
paper  was  lying  overdue  in  the  Bank,  and  the 
agent  of  the  liank,  on  the  execution  of  the  mort- 
gage, told  him  that  he  could  not  expect  an  ad- 
vance till  after  the  expiration  of  thirty  days. 

Plaintiffs  having  .sought  relief  first,  on  the 
ground  that  tlie  mortgages  were  ma<lc  in  consid- 
eration that  the  liank  would  advance  iJSOOO, 
which  would  have  prevented  insolvency,  and 
secondly,  that  thej'  were  given  in  contemplation 
of  insolvency,  and  with  intent  fraudulently  to 
impede  an<l  delay  creditors, 

Ihlil,  as  to  the  first  ground  that  the  consid- 
eration nnist  be  ascertained  from  the  langiiagt; 
of  tin;  instruments  which  referreil  to  existing 
indebtedness  and  not  rulvaiices,  and  that  Smith 
could  not  be  heard  to  alleged  differently ;  but 
that  on  the  second  ground  the  mortgages  must 
1)6  decreed  to  be  void  as  against  the  plaintiffs 
and  creditors  of  the  insolvent. 

Lowjii-orth  ft  al.  \.  Merchants'  Bank  of 

Halifax  cf  al.,  R.  E.  D.,  '25.'). 

6.  Construction  of  agreement  to  release 

mortgage— Plaintiff  brought  action  to  redeeni 
a  mortgage,  setting  out  an  agreement  in  writing  ^ 
by  the  defendant  to  release  it  on  being  paid  one  ' 


half  of  the  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  requiring  payment  of 
one  half  the  balance  due  at  the  time  of  the 
agreement  while  defendant  contended  that  it 
meant  one  half  the  original  principal.  Evi- 
dence was  given  in  support  of  both  construc- 
tions. 

Held,  that,  independently  of  any  evidence, 
the  Master's  view  of  the  agreement  was  incorrect 
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.  Puijdey,  R.  E.  D.,  398. 

7.  Deed  absolute  In  terms— Claim  to  baye 

it  decreed  a  mortgage— Defendant  took  a  con- 
veyance of  land  from  A.  F.  LeBlanc  in  the  form 
of  an  absolute  deed,  dated  26th  July,  1864,  and 
at  the  same  time  executed  a  bond  to  reconvey 
upon  repayment  of  the  consideration  money  of 
the  deed  within  two  years.  At  the  expira- 
tion of  that  period  defendant  asked  LeBlanc 
whether  the  money  would  be  repaid,  or  he 
should  keep  the  land,  to  which  LeBlanc  replied 
that  he  would  prefer  that  defendant  should  keep 
the  land.  The  bond  was  given  up  to  defendant 
and  he  look  the  land,  allowing  LeBlanc  to  live 
on  it,  but  neither  rent  nor  the  principal  or  the 
interest  of  the  money  advanced  by  defendant 
was  paid,  who  afterwards  sold  the  land  for 
a  larger  sum  than  the  amount  of  his  advances. 
LeBlanc  afterwards  became  insolvent,  but  at 
the  time  of  his  giving  up  the  property  he  was 
not  indebted  to  any  of  the  creditors  who  had 
claims  against  him  when  he  went  into  insolvency. 
His  assignee  sought  in  this  ."iction  to  have  the 
deed  decreed  to  be  a  mortgage.  Decree  for 
defendant  with  costs. 

Henderson  v.  Come.au,  R.  E.  1).,  87. 

8.  Deed  absolute  in  terms  —  Decreed  a 

mortgage— Plaintiff,  being  indebted  to  several 
persons,  conveyed  property  to  his  son,  under  an 
agreement  that  the  sou  should  li(iuidate  the 
debts,  and  the  plaintiff  should  have  six  years  to 
pay  him  such  amounts  as  he  should  advance, 
plaintiff  to  remain  in  possession  in  the  meantime, 
and  if  he  failed  to  repay  the  amounts,  the  laiul 
sliould  become  absolutely  the  property  of  the 
son,  who,  contemporaneously  with  the  execution 
of  the  deed,  delivered  a  bond  conditioned  for 
the  fulttlment  of  the  agreement.  The  son  after- 
wards conveyed  the  property  to  Dunn,  who  was 
aware  of  the  terms  of  the  agreement. 

Held,  that  the  transaction  was  in  effect  a 
mortgage,  and  that  Dunn  could   not   claim  to 


887 


MORTGAGE. 


888 


hold  the  land  as  security  for  an  alleged  claim 
against  the  plaintiff,  which  he  had  discharged, 
and  which  was  not  mentioned  in  the  original 
agreement,  but  should  reconvey  the  land  on 
payment  of  the  amount  due  on  the  agreement 
between  plaintiff  and  his  son,  less  any  income 
derived  by  Dunn  from  the  land. 

Knotrlan  v.  Dniiii  tt  al.,  R.  E.  1).,  flOi. 

0.    Deed  absolute  in  terms  —  Decreed  a 

mortgage -Defendant,  on  March  22,  1861,  con- 
veyed to  J.  .1.  Marsliall  certain  real  estate,  by 
an  instrument  in  the  form  of  an  absolute  deed, 
but  which  defendant  contended  was  given  as  a 
mortgage  to  secure  a  debt  due  Marshall.  On 
January!,  1861,  Marshall  signed  a  memorandum 
acknowledging  the  receipt  of  £78  18s.  4d., 
from  defendant  on  account  of  the  property, 
"leaving  a  balance  of  £171  12s.  lid.,  which, 
when  paid  to  me,  and  the  interest  thereon,  I 
bind  myself  to  re-convey  the  said  property," 
etc. ,  and  there  were  other  memoranda  showing 
ihat  Marshall  had  treated  the  conveyance  as  a 
mortgage.  In  January,  1868,  defendant,  having 
omtinued  in  possession  of  the  land  ever  since 
the  execution  of  the  conveyance,  became  the 
tenant  of  Marshall  under  a  lease  then  entered 
into.  After  tlie  death  of  J.  J.  Marshall,  plain- 
tiflf,  claiming  under  his  will,  brought  an  action 
of  ejectment  against  the  defendant. 

H(ld,  an  equitable  plea  having  been  pleaded, 
that  the  conveyance  from  defendant  was  a 
mortgage,  and  tliat  the  relation  of  mortgagor 
and  mortgagee  was  not  altered  by  the  fact  of 
the  lease  being  made  in  1868. 

Marshall  v.  SUd,  R.  E.  D.,  116. 

10.    Deed  in  Tee  simple  made  to  party 

by  mortgagee,  with  consent  of  mortgagor  — 
Estoppel— Plaintiff 's  father  mortgaged  a  lot  of 
land  to  defendant,  and  subsequently  defendant 
with  tlie  ccmsent  and  by  tiie  direction  of  the 
fatlier,  conveyed  the  lot  in  fee  simple  to  X.  M. 
After  the  death  of  tlie  fatiier,  plaintiff  lirought 
suit  under  his  will  against  defendant  for  the 
land. 

Hdd,  that  the  father  by  consenting  to  the 
conveyance  of  the  land  in  fee  simple  to  N.  M., 
was  estopped  from  redeeming  it,  and  as  plaintiff 
was  in  no  better  position  than  her  father,  judg- 
ment should  be  for  defendant. 

McLeod  v.  Camfhdl,  3  N.  S.  D.,  406. 

11.    Deficlenc}'  on  sale  of  mortgaged 

premises — Practice  to  recover  balance — When 
the  hind  foreclosed  and  sold  does  not  bring  the 
amount  due  the  application  should  be  for  an 
order  to  show  cause  why  an  execution  should 


not  issue  for  the  balance,  and  not  for  an  order 
absolute  in  the  first  instance. 

Northup  V.  Jmu,  2  Thorn.,  2,32. 

12.  Delivery,  presumptlTe  evidence  of- 

See  DEED,  18  and  24. 

13.  Equitable  mortgage— Proposal  unac> 

icepted—  Defendant  had  mortgaged  a  vessel  to 

;  Smith,  and  as  a  number  of  creditors  were  pressing 
him,  he  wrote  a  letter  to  .Smith  consenting  that 
this  mortgage  should  be  held  as  security  for  such 
creditors  on  condition  that  they  should  give 
time  and  assist  in  selling  the  vessel,  and  that 
the  vessel  should  not  be  sf)ld  for  less  than  a 
stipulate<l  amount.  Tiie  conditions  were  r.ot 
accepted,  but  one  of  the  creditors  named  in  the 
letter  in  which  the  proposal  was  made  got  a 
separate  mortgage  of  the  ecjuity  of  redemption 
to  secure  his  own  claim. 

Held,  that  the  letter  was  at  the  most  a  i)ro 
posal  unaccepted,  and  not  an  equitalde  nicirt- 
gage  in  favor  of  the  parties  named,  and  that 
plaintiffs'  title  must  prevail  over  any  interest 

,  created  by  the  letter. 

I  Quaere,  whether  even  the  acceptfvr.ce  of  the 
terms  would  have   created  an  ecjuitable  mort- 

\       Hart  i-l  a/,  v.  Maijnm  et  al.,  6  R.  &  (J.,  .'141. 

14.  Estoppel  —  Fraud  —  PlaintiflT  brought 

suit  to  foreclose  a  mortgage  made  by  defemlant, 
:  who  alleged  in  her  answer  that  siie  had  lit'en 
I  induced   to  sign   it   by   the   fraud  of  Thos.  S. 
Fowler.     Her  testimony   as   to  the   imposition 
j  alleged   to  have  been  practised  upon  her  was 
\  contradicted  by  Fowler,  and  it  was  in  proof  that 
she  had  re-executed  the  instrument  in  the  pre- 
I  sence  of  the  clerk  of  plaintiff's  solicitor,  who 
:  had  deferred  paying  over  the  money  in  order  to 
assure  himself  that  defendant  understood  the 
transaction.       There    was    also    evidence    tliac 
defendant  was  aware  of  the  nature  of  the  instru- 
ment shortly  after  signing  it,  and  did  not  repu- 
■  tliate  it,  but  entered  into  negotiations  to  obtain 
security   from   Fowler   who    had    retained  tlie 
:  money  advanced  on  the  security  of  the  mortgage. 
I  The  Court  in  view  of  the  evidence,  concluded 
that  defendant  when  she  signed  tiie  instrument 
i  must  have  understood  its  nature,  and  lieUl  that 
I  whether  she  did  or  did  not  understand  it,  she 
was  estopped,  as  against  plaintiff,  from  saying 
that  she  was  not  aware  of  it  contents. 

Kmnearv.  Silver,  R.  E.  D.,  101. 

15.  Execution  of— Presumption  of  pay* 

ment  —  Rebuttal  of— A  document   forty-live 
years  old,  in  terms  a  mortgage  of  real  estate, 


889 


MORTGAGE. 


890 


WHS  witliout  a  seal,  and  liad  no  trace,  mark  or 
impiession  of  any  seal  ;  Init  it  contained  the 
usual  fcKtalum  clause  before  the  sign;.*,'"-':  of  the 
parties,  and  the  usual  form,  "  signed,  sealed,  and 
delivered  in  the  presence  of,"  before  that  of  the 
wiuic'.sses.  In  the  registry  of  the  alleged  niort- 
jjug'',  two  years  after  its  date,  the  registrar  had 
pliiL'i'd  opposite  the  signatures  Iwth  of  the  alleged 
mortgagor  and  his  wife  (who  signed  by  marks), 
tin'  usual  mark,  [L.  S.]  The  wife  of  the  alleged 
niortgiigor  had  also  acknowledged  her  release  of 
dower,  before  a  Justice  of  the  Peace,  and 
the  ii^jsignment  of  the  alleged  mortgage,  two 
years  after  its  date  was  under  seal.  The 
alleged  mortgagor,  fifteen  years  before  action 
liroiiglit,  verbally  acknowledged  that  the  debt 
seeiued  by  the  alleged  mortgage  was  a  just 
<le1it,  but  declined  to  give  any  further  security 
r)r  to  pay  the  money,  alleging  poverty  as  a 
reiisim,  and  asking  time  to  consider,  and 
shoitly  afterwards  positively  refused  to  sign 
any  papers,  or  to  take  any  other  course  in  the 
mutter.  No  payment  <;n  account  of  tlie  alleged 
iniirtgage  had  been  made  for  more  than  forty 
yeiirs  befoie  action  bi'ought,  except  six  dollars 
fur  interest  thirty-one  years  before  the  issue  of 
tlie  writ,  which  was  immediately  returned  on 
the  alleged  mortgagor  pleading  poverty,  and 
was  not  credited  on  the  back  of  the  alleged 
mortgage,  nor  in  the  account  book. 

//eld,  in  an  action  for  foreclosure  of  the  alleged 
mortgage,  Young,  C.  J.,  and  Dodd,  J.,  dixstntiwi, 
tliiU  the  existence  of  seals  to  the  alleged  mort- 
gage at  the  time  of  its  signature  might  be  pre- 
sumed. 

Pir  Bliss,  DesHarres,  and  Wilkins,  JJ. — That 
the  verbal  acknowledgment  by  the  alleged  mort- 
gagor of  the  justness  of  the  debt  rebutted  any 
legal  presumption  of  payment. 

Martin  tt  al.  v.  liarnes  ef  al.,  1  Old.,  '291. 

16.   Foreclosure  and  ejectment— Practice 

—In  foreclosure  oi  mortgages  in  the  .Supreme 
Court  by  ejectment,   the  ejectment   and   fore- 
closure are  distinct  proceedings,  and  the  latter 
may  be  set  aside  for  irregularity  without  dia 
turl)ing  the  former. 

The  declaration  in  ejectment  must  be  served 
upon  the  tenarit  in  possession,  and  the  order  of 
foreclosure  and  sale  upon  all  the  parties  having 
equitable  interests  in  the  premises. 

All  assignment  by  the  mortgagor  of  his  etiuity 
of  redemption  under  the  Insolvent  Debtor's  Act, 
makes  his  assignee  a  trustee  for  him,  and  leaves 
in  him  a  remaining  interest  in  the  nature  of  an 
equity  of  redemption  sufficient  to  entitle  him  to 
be  made  a  party  to  a  foreclosure  of  the  mort- 
gaged premises. 

The  rule  or  order  to  sell  must  bo  annexed  to 


the  mortgage  or  else  contain  a  description  by 
which  the  premises  intended  to  be  sold  nuiy  be 
known. 

Mayheii-  v.  Ftn,  James,  lOS. 

17.  Foreclosure  and  sale— Description  ot 

property  —  Under  an  order  of  foreclosure  anil 
sale,  plaintiffs  advertised  for  sale  "all  the 
estate,  right,  title,  interest  and  eijuity  of  re- 
demption "  of  the  defendants.  At  the  sale  one 
M.  became  the  purchaser,  and  paid  down  the  ten 
per  cent,  deposit  reijuired  under  the  terms  of  the 
sale,  but  refused  to  complete  the  purchase,  on 
the  ground  that  a  good  title  in  fee  simple  could 
not  be  given.  An  order  for  a  resale  was  made, 
and  the  property  was  sold  for  an  amount  less 
than  the  amount  of  the  mortgage.  I'laintiffs 
applied  to  the  Court  for  an  order  for  the  payment 
to  them  of  the  deposit  on  the  first  sale.  M. 
showed  cause,  contending  that  he  was  entitled 
to  the  return  of  the  deposit  as  a  good  title  could 
not  be  given. 

fli'ld,  that  as  the  plaintifTs  had  only  professed 
to  sell  the  title  of  tlie  defendants,  such  as  it  was, 
and  had  not  been  guilty  of  fraud  or  misrepre- 
sentation, and  the  purchaser  would,  under  his 
purchase,  have  acquired  all  that  he  bid  for,  he 
was  not  entitled  to  a  return  of  the  deposit. 
Dioceaan  Synod,  Nova  Scotia,  v.  O'lirimi  (t  al., 

R.  K.  I).,  3.V2. 

18.  Foreclosure  and  sale  —  Mortgagee's 

rights  on  bond — 

Held,  that  a  mortgagee  who  has  foreclospd 
and  sohl  and  bought  in  the  land  at  ISheriff' s  s;ile 
and  is  in  possession  of  the  land  can  rank  upon 
the  estate  of  the  mortgagor  for  the  i)alance  due 
on  bond  after  deducting  tlie  proceeds  of  sale, 
and  cannot  be  compelled  to  give  credit  for  the 
actual  value  of  the  land. 

Ih  Extatt  of  Chandler,  o  R.  &  (i.,  78. 

19.  Foreclosure  and  sale  —  Purchase  by 
mortgagee  and  sale  to  third  party  —  Action 
on  bond  for  balance  due  —  Plaintiff  held  en- 
titled to  recover  —  At  a  sale  of  mortgaged 
property  held  pursuant  to  an  order  of  foreclosure 
and  .sale,  plaintiff',  the  mortgagee,  became  the 
purchaser  for  a  sum  less  than  the  amount  of  the 
mortgage. 

Plainlift'  conveyed  the  property  to  a  third 
party  and  subsequently  sued  on  the  bond  given 
1  collaterally  with  the  mortgage  to  recover  the 
balance  due  after  crediting  the  net  sum  for 
which  the  property  was  si  Id  at  the  Sheriflf's 
sale. 

Held,  McDonald,  C.  J.,  and  Weatherbe,  J., 

duhitante,  thai,  plaintiff  was  entitled  to  recover. 

Kenny  v.  Chi'iholm,  7  R.  &  Ci.,  497  ; 

8C.  L.  T.,62. 


891 


MORTGAGE. 


892 


Ofi  appicU  to  the  Supreme  Court  of  Canada,     \    23.  Foreclosure  and  sale— Kesale  ordered 

Htld,  that  the  mortgagee  wus  not  prohibited  '  0°  ground  of  misapprehension-  Defendam,  a 

from   proceeiling   on   tlie    bond  to  recover   the    mortgagor,  churned  a  resale  of  premises  sold  by 

residue  of  his  debt.  tlie  Sheriff  under  foreclosure  process  and  bought 

Chuholm  V.  Ktnny,  10th  Fthruary,  ISSC,      \  ">  '>y  the  plaintiff,  the  mortgagee,  on  the  grouiul 

Cas.  Digest   298.  ■  °f  "•  misunderstanding  at  the  sale,  arising  out  of 

the   fact    that    the   properties   were   described 


'iO.    Foreclosure  and   sale  —  Powers  of 

Court  in  controlling— Postponement  of  sale— 
Where  an  order  of  foreclosure  and  sale  of  a  coal 
mine  was  made,  K.,  one  of  the  largest  sharehold- 
ers in  the  company  owning  the  mine,  applied 
for  an  order  directing  certain  coal  to  be  sold  be- 
fore dealing  with  the  mine  itself.  The  Judge 
refused  to  give  the  order,  and  B.  appealed.  The 
day  of  sale  was  fixed  subseciuent  to  the  term. 


differently  in  the  advertisement,  from  the  way  in 
which  they  were  described  in  the  mortgage  aiul 
writ.  In  the  latter  documents  only  three  par- 
cels were  enumerated,  two  on  the  peninsula  and 
one  on  t^ueen  Street ;  in  the  advertisement  they 
were  described  as  four  lots,  the  Queen  Street 
property  being  divided  into  two  lots,  each  separ- 
ately described,  so  that  when  purchasers  vere 
told  that  the  last  lot  was  excluded  from  the  sale 
they  would  naturally  infer  that  the  whole  Queeu 


and  with  the  understanding  that  if  the  cause  ^^^^^^  ^^^  ^^^  excluded,  and  there  was  clear 
was  not  reached  on  the  last  day  of  the  term  'i  ;  evidence  that  such  an  understanding  had  preju- 
further  postponement  might  be  moved  for.    The  :  Jicially  affected  the  sale. 

cause  not  being  reached  and  argued,  ^^^,;^  that  the  defendant   was  entitled  to  a 

Hdd,  that  the  sale  should  be  postponed  on    ^^^.^.^1^^   j^„j  t,,^^.  the  fact  of  plaintiff    having, 

terms  being  given  by  li.  .  j^f^^j,  ^j^^  p,„.yijase,  agreed  to  sell  one  of  the  lots, 

Murdoch  el  al.  v.  Lairsoii  et  al,  |  ^jj^j  ^^^^  .^q^^^  t,,,^^  ^i^j^^^  ^^^  ,,g  j,,^j|  obtained  no 

'  I  deed,  and  the  sale  had  not  been  conhrmed  by 

the  Court. 


21.    Foreclosure  and    sale  —  Powers  of 


Bi<jdow  V.  Blaiklocli,  R.  E.  D.,  23. 


Court    in    controlling  —  Sale    of    mortgaged  ] 

property  in  portions  —  Plaintiff,  who  was  the  j  24.  Foreclosure  Commenced  after  twenty- 
mortgagee  of  certain  coal  areas,  &c.,  having  years— Ejectment  meantime  prevents  opera- 
commenced  an  action  of  foreclosure  against  the  tion  of  Statute— Allan  .McKay  conveyed  proper- 
defendants,  who  were  trustees  of  the  same,  and  ty  to  plaintiflf  by  a  deed,  absolute  in  terms,  but 
cbtainedanorderofsale,  B.,oneof  theffc.>7Hj'«(/Me  admitted  to  have  been  given  as  a  security  for  a 
trmttnt  applied  to  the  Court  on  petition  setting  j^bt.  Nothing  was  paid  on  account  of  principal 
out  that  shortly  before  the  date  of  the  order  (,,.  interest  by  the  mortgagor  or  his  heirs,  for  a 
there  v/as  ready  for  shipment  at  mine  a  large  period  of  over  twenty  years  before  suit  to  fore- 
quantity  of  coal,  which,  if  sold,  and  the  proceeds  ■  dose,  but  within  that  period  an  action  of  eject- 
applied  to  that  purpose,  would  be  more  than  ^ent  had  been  brought  to  recover  possession,  in 
sufficient  to  pay  the  amount  due  on  the  mort-  '  which  a  judgment  was  obtained,  a  record  tiled 


gage,  and  claiming  that  the  sale  of  the  mine 
under  the  circumstances  would  be  a  great  in- 
justice. 

Htld,  that  where  equity  to  the  cestidn  que 
trwtent  requires  it  especially  if  the  mortgagee  be 
not  prejudiced  thereby  the  Court  possesses  the 
power  and  will  exercise  it  to  dispose  of  such 
portions  of  the  mortgaged  property  as  will  least 
injure  the  mortgaged  property  and  yet  extin- 
guish  the  debt.     The  case   was   referred  to  a 


and  a  writ  of  hab.  /tic.   /»o.s'.  issued  but  not 
executed. 

Held,  that  these  proceedings  prevented  the 
Statute  of  Limitations  from  operating  except 
from  the  judgment. 

McKeen  v.  McKay,  R,  E,  D.,  121. 

25.    Foreclosure  decreed  In  spite  of  And- 

ings    of  jury    that    mortgage    was    without 


Master  to  take  evidence  on  the  subject  of  the  I  consideration,  &c.-Defendauc,  in  his  answer 


coals  alleged  to  have  been  raised  and  report. 
Murdoch  v.  Belloni  et  al.,  3  N.  S.  D.,  532. 


22.  Foreclosure  —  Regularity  of  proceed- 
ings— It  is  for  the  plaintiff  in  foreclosure  to  see 
that  the  proceedings  are  regular,  at  his  own  risk 
of  having  them  set  aside,  if  irregular. 

houtilier  v.  Harshman,  James,  338. 


to  a  suit  for  foreclosure  of  a  mortgage,  set  out. 
that  the  mortgage  had  been  given  to  secure  the 
payment  of  a  note  from  defendant  to  plain  titf 
for  £68  10s.,  and  an  advance  of  §200  to  l« 
made  by  plaintififto  defendant,  which  was  made 
and  repaid  by  the  defendant  before  the  fore- 
closure suit  was  brought  by  plaintiflf,  as  executor 
of  the  mortgagee.  In  his  evidence  defendant 
made  an  entirely  different  case, — that  the  note 


893 


MORTGAGE. 


894 


had  been  rcpiiid  Wfore  the  execution  of  the 
mortgage,  and  tliat  tlie  $2((0  to  lie  paid  by  plain- 
tiff to  defendant  was  soon  after  returned,  in  the 
very  same  money  that  had  been  received,  having 
been  only  intended  to  strengthen  the  transac- 
tion ;  defendant  contending  that  the  mortgage 
had  been  given  without  any  hoiiajidi.  considera- 
tion, but  merely  to  protect  his  property  from  a 
claim  of  \V.  &  tJ.  A  jury,  to  whom  issues  were 
submitted,  found,  first,  that  the  object  of  the 
mortgage  was  to  evado  payment  of  the  debt  to 
\V.  &  (J. ;  that  the  mortgagee  was  iiware  of  that 
f;ict  wlien  he  received  the  mortgage,  and  that 
the  mortgage  was  given  without  consideration. 
Htld,  that  notwithstanding  these  findings,  the 
])laintiff  was  entitled  to  a  decree  of  foreclosure. 
McLdlan  v.  Fidmorc,  R.  E.  D.,  453. 

26.  Foreclosure  —  Defcn  re  of  breach  of 

bond  given  by  mortgagee  at  time  of  mort- 
gage—No time  of  payment  in  mortgage — To  a 

suit  brotigbt  to  foreclose  a  mortgage,  defen- 
dant relied  chiefly  upon  two  grounds  of  defence 
—first,  that,  concurrently  with  the  making  of 
the  mortgage,  jdaintifif  gave  defendant  a  bond, 
whereby  he  bound  himself  to  erect  a  double 
house  on  the  land  within  ten  months,  which  de- 
fendant contended  had  not  been  built  in  sucli 
a  manner  as  contemplated  by  the  agreement  ; 
secondly,  that  the  principal  was  not  to  become 
payable  until  ten  years  after  the  date  of  the 
mortgage.  The  number  of  years  was  left  blank 
in  the  mortgage.  Defendant  swore  that  it  was 
t(.  be  ten  years,  which  i)laintifF  tlenied,  and  there 
was  no  other  evidence. 

Hdd,  that  vhe  first  defence  could  not  prevail, 
as,  assuming  the  defendant's  statement  to  be 
true,  it  only  formed  the  ground  of  an  action  for 
damages,  and  that,  as  to  tlie  second,  as  there  was 
no  satisfactory  evidence  to  supply  the  omission 
of  the  number  of  years,  the  Court  must  construe 
the  mortgage  as  if  no  time  was  mentioned,  and 
plaintiff  had  a  right  to  foreclose. 

Hiijijins  v.  McLachlan,  R.  E.  D.,  441. 

27.  Foreclosure,  notice  to  Incumbran- 
cers —  benjamin,  Freeman  &  Calder  purchased 
certain  lands,  subject  to  a  subsisting  mortgage, 
each  of  them  receiving  a  deed  of  one  undivided 
third.  They  had  formed  a  partnership  for 
milling  and  lumbering,  and  Calder  borrowed 
?2,000  for  the  purpose  of  erecting  a  mill,  for 
which  he  gave  a  confession  of  judgment  to  the 
plaintiff,  which  was  duly  recorded.  The  partner- 
ship, becoming  embarrassed,  assigned  all  their 
property  to  Taylor  and  others,  as  trustees,  and 
afterwards  assigned  under  the  Insolvent  Act  to 
Taylor,  who  procured,  the  mortgage  to  be  fore- 


I  closed  and  bought  in  the  property,  which  he 
afterwards  sold  to  Benjamin.  The  plaintiff  was 
not  made  a  defendant  in  the  foreclosure  suit,  and 
received  no  notice  of  the  sale,  although  Taylor 
was  aware  of  the  fact  that  the  plaintiff'  helil  a 
judgment,  and  that  it  was  recorded  in  the  county 
where  the  land  lay,  and  Henjamin,  when  he  took 
the  deed,  was  aware  of  the  facts. 

Hdd,  that  plaintiff  was  entitled  to  a  resale, 
with  notice,  and  that  the  plaintiff's  lien  under 

!  his  judgment  must  have  priority  over  the  deed 
in  trust. 

Kaulbach  v,  Taylor  tf  «/.,  R.  E.  D.,  400. 

28.  Foreclosure  —  Writ  of  possession- 
Question  of  title  —  Summary  decision  at 
Chambers  —  Laches  —  J.  A.  \V.  applied  at 
Chambers  for  and  obtained  an  order  for  a  writ  of 
possession  of  lands  and  premises  purchased  by 

;  him  at  a  foreclosure  sale.  An  appeal  from  the 
order  was  taken  on  behalf  of  M.  J.  B.,  widow 
of  F.  T.  B.,  the  mortgagor,  on  the  ground  that 

;  the  lands  in  (]uestion  were  held  by  her  under 
lease  from  the  Crown,  and  that,  a  (question  of 

I  title  having  been  raised,  such  question  could  not 

I  be  decided  in  a  summary  way,  but  that  posses- 
sion must  be  sought  by  action  at  law. 

1      A'dd,  that  the  SheriflFcouldonly  put  J.  A.  \V. 

I  in  possession  of  the  lands  actually  described  in 

i  his  deed,  and  that  M.  J.  B.  having  shown  that 
the  land  she  occupied  and  claimed  under  lease 

I  from  tlie  Crown  was  outside  of  that  description, 
she  had  no  ground  for  opposing  the  issue  of  the 
writ. 

Further,  that  M.  J.  B.  having  been  made  a 
party  to  the  foreclosure  suit,  and  having  failed 
to  appear,  could  not,  without  opening  up  the 
decree  of  foreclosure,  which  barred  her  estate  and. 
interest,  oppose  the  issue  of  a  writ  of  possession 
by  setting  up  a  claim  which  existed,  and  which 
could  have  been  raised  as  a  defence  if  the  descrip- 
tion in  the  mortgage  covered  the  land  held  by 
her  under  lease  from  the  Crown. 

Weatherbe,  J.,  duHenttd,  on  the  ground  that 

a  question  of  title  had  been  raised  which  could 

not  be  decided  in  a  summary  way  at  Chambers. 

Ke  G.  W.  Stuart,  7  R.  &  G.,  444  ^ 

7  C.  L.  T.,  437. 

'29.    Injunction  to  restrain  action  at  law 

where  claim  raised  therein  had  been  adjudi- 
cated upon  on  application  for  writ  of  assist- 
ance—The  defendant,  J.  C.  S.  Miller,  mortgaged 
certain  property  to  VV.  C.  King,  whose  executors 
foreclosed  the  mortgage,  J.  \V.  King,  the  sur- 
viving executor  of  the  mortgagee,  becoming  the 
purchaser  at  the  Sheriff's  sale.  Defendant  re- 
maining in  possession  of  the  mortgaged  premise* 


895 


MORTGAGE. 


896 


a  riilo  itixi  wiis  granted  for  a  writ  of  uasistance  I 
to  put  the   purchikser  in  possession.     No  cause 
being  shown  the  rule  was  made  absolute  and  a  i 
writ  issued,  under  which  the  property  was  de- 
livered to  J.  VV.  King.     Defendant  then  brought 
an  action  of  trespass  against  the  .Sheriff  and  J.  I 
W.   King,  wherei'j:o!i  a  rule  nisi  wa.s  taken  for  I 
an  injunction  to  restrain  ihe  action.     Defendant 
opposed  the  rule,  conten<ling  that  the  property, 
of  wliieh  he  had  been  in  possession,  was  not  in-  ; 
eluded  in  the  mortgage  ;  but,  after  a  full  hearing 
of  tlie  cause,  the   rule  for   the  injunction   was  1 
niaile  absolute.     J.  W.  King  tiien  put  the  plain- 
titt",  Mosher,   in  possession  of  the  Uuid,  and  the 
defendant,  J.  C.  S.  Miller,  brought  an  action  of 
ejectment,  setting  up  tiie  claim  which  this  Court 
had   previously  decided  against   him,    namely, 
that  the  lands  claimed  were  not  included  in  the  i 
mortgage.     The  present  suit  having  been  insti- 
tuted to  rcstniin  the  action, 

/fild,  that  the  defendant  could  not  resort  to 
the  actisn  of  ejectment  at  connnon  law,  and 
tliere  claim  the  land  to  which  this  Court  had 
decreed  that  lie  was  not  entitled,  and  that  the 
action  must  be  restraineil.  To  allow  an  eject- 
ment to  be  brought  Ijy  Miller  against  King, 
would  be  inconsistent  with  the  order  of  this 
Court,    which    be  had   not   thought   proper  to 

<|uestion  by  appeal. 

Mosher  V.  Mill,,;  11.  K.  D.,  279. 

30.    Insolvency  does  not  prevent  proceed- 

ings  to  foreclose— Effect  of  arrest  on  lien  of 
judgment— Parker  &  (irant  having  recovered  a 
verdict  against  Fairbanks,  a  rule  nisi  was  taken 
out  to  set  it  aside.  T.  &  E.  DeWolf  &  Co.  became 
sureties  to  respond  the  final  judgment,  and  took 
a  mortgage  from  Fairbanks  to  secure  them  from 
loss  on  account  of  iheir  bond,  and  also  to  secure 
the  amount  of  an  existing  indebtedness.  Tlie 
rule  nisi  having  been  discharged  and  judgment 
entered  up  against  Fairbanks,  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  as- 
signee of  DeWolfe  &  Co.  against  Fairbanks,  to 
foreclose  tha  mortgage,  and  after  said  Fairbanks 
had  answered,  his  estate  was  placed  in  insol- 
vency, and  Creighton,  his  assignee,  intervened 
and  became  a  party.  Parker  &  (irant  also  be- 
came parties  as  interested  in  the  subject-matter. 
Beld,  first,  that  the  insolvency  of  Fairl)anks 
did  not  prevent  the  plaintiff  from  proceeding 
with  the  foreclosure  ;  and  secondly,  that  Parker 
&  Grant  had  not  lost  their  lien  on  the  mortgaged 
property  in  consequence  of  their  having  arrested 
Fairbanks  under  the  judgment. 
Tucker,  Amijnee,  v.  Crei'jhton,  Assifjnee,  et  al., 

R.  E.  D.,  261. 


31.  Insolvency— Mortgage  made  In  con. 

templation  of— Howell  &  .Stewart  in  June, 
1871,  entered  into  co-partnership  aa  founders, 
kc,  the  former  to  give  his  skill  and  ability  to 
tiie  business,  and  the  latter,  who  was  a  minor, 
to  supply  capital  and  purchase  stock  to  the  ex- 
tent of  .^.(KX).  At  the  time  of  the  agreement, 
a  lot  of  land  was  purchased  for  §10,(XWon  which 
to  erect  buildings  for  the  business,  but  nothing 
was  paid  on  account  of  the  purchase  money, 
which  was  secured  by  a  mortgage.  The  deed  was 
taken  in  the  name  of  Howell  and  Mrs.  Adams, 
the  mother  of  .Stewart,  who  advanced  the  !?4,0<J(j 
to  start  the  business.  Although  plaintiff  con- 
tended that  this  advance  was  simply  made  liy 
Mrs.  Adams  to  her  .son,  there  was  some  evidence 
to  siiow  that  it  was  to  be  repaid  by  the  partner- 
ship. .Stewart  became  of  age  in  February,  187.'t, 
and  in  August  of  that  year  the  partnersliip  was 
dissolved,  and  a  mortgage  made  by  Howell  to 
Mrs.  Adams  to  secure  the  amount  of  her  advances. 
The  plaintiff,  as  assignee,  sought  to  have  this 
mortgage  declared  void,  as  made  in  contemphi- 
tioii  of  insolvency.  At  the  time  of  making  the 
mortgage  the  liusiiiess  was  embarrassed,  but  the 
jury  found  that  the  mortgage  was  not  made  in 
contemplation  of  insolvency,  and  negatived  fruinl 
in  the  transaction,  though  they  found  that  thu 
conveyance  had  the  effect  of  impeding,  obstruct- 
ing and  delaying  creditors. 

The  Court  upheld  the  conveyance. 

Fraser,  Assiijnet,  v.  Adams  et  al., 

R.  E.  D.,  235. 

32.  Insolvency— Mortgage  made  in  coD' 

templation  of — Defendants,  being  added  parties, 
resisted  a  proceeding  taken  by  plaintiff,  as  assig- 
nee of  a  mortgage,  to  foreclose  the  same,  on  the 
ground  that  the  mortgage  was  made  in  contem- 
plation of  insolvency,  and  was  void  under  the 
Insolvent  Act,  the  mortgagee  having  afterwards 
become  insolvent  and  assigned  under  the  Act. 

/fetd,  that  defendants,  seeking  as  crtditois 
of  the  insolvent,  to  impeach  the  mortgage,  solely 
on  the  ground  that  it  was  in  contraventioii  uf 
the  Insolvent  Act,  should  have  called  on  llie 
assignee  to  take  proceedings  to  set  it  aside,  nui 
upon  his  refusal,  should  have  applied  to  tlie 
Judge  for  leave  to  proceed  in  his  name,  and, 
further,  that  defendants  should  have  proved  their 
claims  in  order  to  entitle  them  so  to  proceed. 

Quaere,  whether  the  defendants  could  contest 
the  validity  of  the  mortgage  at  all,  witliout 
bringing  a  cross  action. 

Grant  v.  Wheeler  et  al.,  R.  E.  D.,  3S8. 

33.  Insolvency— Mortgage  made  In  con. 

templation  of,   void — The   Messrs.  Pryor,  In 


897 


MORTGAGE. 


898 


Deceiiilwr,  1873,  of  tlieir  own  accord,  signed  and 
seiiled  !i  mortgage,  whereby  defendant  was  to 
l)c  secured  from  loss  on  indorsements  of  their 
paper  ;  hut  defendant  diil  not  become  aware  that 
such  a  mortgage  had  been  made  until  some  time 
ill  1H74,  and  his  information  then  was  not  derived 
ficjiii  Messrs.  Pryor,  or  any  person  authorized 
liy  tliem.  The  mortgage  was  not  recorded  until 
March  20,  1S7">,  when  the  Messrs.  Pryor  knew 
thuy  would  have  to  go  into  bankruptcy,  and  on 
Marcii  "i'i,  187"),  they^made  an  assignment  under 
liic  IiLiolvent  Act  of  18GII. 

Hi  III,   that    the   mortgage    was    void,    being 
iiiaile  in  contemplation  of  insolvency. 

Lordly,  A'lsi'jin.t  of  Pryor,  v.  i'eomaiis, 

R.  E.  D.,  113. 


34.   In.solvency-Pledge  or  lien  given  In 

contemplation  of— J.  T.  V.  &  Co.,  being  in- 
cklited  to  tlie  plaintiff,  gave,  as  a  collateral 
security,  a  mortgage  which  they  M-ere  to  receive 
on  a  vessel,  being  built  by  McK.  &  V.,  dehtor.s 
(if  tliuirs,  in  P.  K.  Island.  The  arrangement  was 
made  October  10,  187">,  and  on  the  same  day  J. 
T.  I'.  &  Cn.  wrote  to  plaintiffs,  encloaing  a  draft 
on  H.  1%  Co.,  Liverpool,  at  ninety  days,  for 
t'lifMK),  stating  that  the  same  was  drawn  against 
piocc'ods  of  the  vessel,  wliich  was  to  be  sold  in 
Livorpool  C.  B.,  by  H.  k  Co.,  and  concluding  ; 
"  The  aliove  vessel  i.-s  herewith  pledged  to  you 
f'lr  the  due  payment  of  said  bill  of  exchange, 
as  well  as  for  payment  of  the  obligations  of  McK. 
k  v.''  •!.  T.  F.  &  Co.  then  proceeded  to  Prince 
Eilward  Island,  to  obtain  tlie  mortgage  ;  but 
previous  to  its  being  deliverer  to  plaintiffs 
lliey  liad,  on  the  I'Jth  November,  caused  a  de- 
mand of  assignment  to  be  served  on  J.  T.  F.  & 
Co.,  and  the  plaintiffs' manager,  when  the  mort- 
gage was  afterwards  tendered  to  him,  said  it  ' 
should  have  been  made  to  the  Bank,  instead  of  j 
to.].  T.  F.  k  Co.,  and  handed  it  back  to  J.  T.  : 
F.,  who  gave  it  to  the  assignee.  On  the  15th  ' 
November,  J.  T.  P.  &  Co.  made  an  assignment 
'nulcr  the  Insolvent  Act,  and  on  the  •27th 
Noveniljur,  the  bill  of  exchange  for  £1,000  was 
presented  and  dishonored.  The  vessel  was  sold 
for  more  than  £1,000,  by  the  a.ssignee,  ^vho  re- 
tained the  proceeds.  Plaintifls  claiming  to  have 
an  eipiitable  lien  on  the  mortgage  for  the  amount 
of  tlie  bill  of  exchange,  and  of  an  unpaid  note  of 
ileK.  &  v.,  indorsed  by  J.  T.  F.  &  Co., 

ffil'l,  that  although,  if  the  proceedings  were 
Wtween  tlie  plaintifT  and  J.  T.  F.  &  Co.  alone, 
tlie  latter  might  be  estopped  from  resisting  the 
claim  of  tlie  plaintiffs,  on  the  ground  that  they 
Iwil  no  title  to  the  vessel  at  the  time  they 
pledged  her  ;  yet,  under  the  provisions  of  the 
Insolvent  Act  of  1875,  s.  118,  the  pledge  or  lien, 

en 


if  it  could  otherwise  have  been  effective,  was  ren- 
dered null  and  void,  a  demanrl  of  a-ssignment, 
followed  by  an  assignment,  having  been  serveil 
within  thirty  days  after  the  pledge  was  given, 
and  the  plaintiffs,  upon  whom  the  burden  of 
proof  lay  under  that  section,  not  having  shown 
that  the  pledge  had  not  been  made  in  contem- 
plation of  insolvency. 
Jiaii/c  of  B.  N.  America  v.  Worrall,  R.  E.  V.,  12. 

I    SS.  Insurance  for  benefit  Of  mortgagee - 

Interpleader— Plaintiff  mortgaged  certain  pro- 
I  perty  to  C.  for  .§434. 5(J,  and  covenanted  in  the 
I  mortgage  to  keep  it  insured  for  .§500  in  the  name 
i  and  for  the  benefit  of  the  mortgagee.     .'•Nubse- 
I  (juently  plaintiff  effected  insurance  to  the  amount 
I  of  .^570  on  his  own  account,  without  reference 
I  to  the  mortgagee,  -SKSO  of  which  was  on  the  per- 
'  sonal  projierty,  not  covered  by  the  mortgage. 
After  loss  by  tire,  the  mortgagee,  finding  that 
I  the  insurance  was  not  in  his  name,  demanded  an 
'  assignment  of  the  policy,  offering  to  secure  to 
plaintiff' the  amount  due  him,  and  upon  his  re- 
fusal, claimed  the  amount  from  the  company. 
Defendants   paid    the  i?l80,   and    upon    action 
brouglit  for  tlie  balance,  an  interpleader  order 
was  made. 

I  III  /(I,  that  the  insurance  inured  to  the  benefit 
I  of  the  mortgagee,  and  that  he  was  entitled  to 
interplead,  although  the  claim  of  the  mortgagee 
was  an  uquitalde  claim,  and  the  company  was 
under  a  contractual  obligation  to  the  plaintiff, 
'  and  althouglj  the  claim  of  the  mortgagee  was 
smaller  than  the  amount  insured. 

McKenzie  v.  ^Eliia  lumtranri-  Company, 

R.  K.  1).,  346. 

3«.   Insurance -Right  Of  mortgagee  to— 

Plaintiff,  a  member  of  the  firm  of  Black  Bros.  & 
Co.,  took  a  mortgage  of  a  vessel  which  was 
given  by  defendants  for  outfits  supplied  by  that 
firm,  and  a  policy  of  insurance  was  effected  to 
secure  the  payment  for  the  outfits.  The  vessel 
was  lost  and  plaintiff  received  the  insurance, 
which  he  credited  in  account  with  one  Malcolm, 
to  whom  he  had  agreed  to  sell  .36/64  shares  in 
the  vessel. 

Hdd,    vhat   the   amount  received    from   the 

insurers  must  go  to  the  credit  of  the  mortgage. 

Ti-oop  v.  Mo:ikrct  al.,  R.  E.  1).,  189. 

37.   Joint  stock  company— Dlrectorsof— 

Power  to  mortgage  implied  from  power  to 
borrow- -The  directors  of  a  company  incorpor- 
ated under  Acts  of  1862,  chapter  2  (Rev,  Stats., 
.3rd  series,  750),  intituled  "  An  Act  for  the  incor- 
poration and  winding-up  of  joint  stock  com- 
panies," have  power  to  mortgage  the  property 


899 


MORTGAGE. 


900 


of  the  company  to  lUschurge  obligations  for  which  j  that  the  cugtonmry  renewal  receipt  shoiilil  lie 
the  shareholilers  lire  liable,  and  would  continue  given,  but  in  conHcciuenie  of  a  change  in  dcftiul- 
liable  in  their  own  jjerBons,  if  there  were  no  j  ant  company's  business  a  new  ixdicy  was  i«Hutd 
mortgage.  The  power  to  lx)rrow  money  implies  ■  instead  in  the  name  of  T.,  as  before,  but  having 
the  power  to  mortgage.  In  making  calls  upon  indorsed  uiwn  it  an  assignment  of  T's  interest 
eontributories,  summonses  will  be  granted  by  a    to  the  plaintiffs 


Judge    to    the    several    parties    requiring    the 


Ilflil,  that  plaintiffs  could  not  recover  undtr  a 


amounts  for  which  they  are  liable  to  be  paid  renewal  of  tlie  original  policy  as  there  was  no 
within  a  specified  time,  without  costs,  unless  [  privity  of  contract  between  them  and  the  dfftn- 
resisted.  I  dants,  or  under  the  second  policy,  as,  having  no 

In  re  Xanh  Brick  it-  Pottery  Manufacturimj  Co.,    interest  in  the  property  at  the  time  it  was  luiule, 

3N.  S.  D.,254.  'the  assignment   by   T.  was  ineffectual  to  pass 
^  anything  to  the  plaintiffs. 
"      Mortgage  effected  by  trustee  on  prO-l      /'oWeatherbcJ.-That  there  having  been  a 


perty  of  vestui  qui  trust— Snii  to  recover  bal. 
ance   due  —  Notice    of  trust   to    mortgagee. 


mutual  understanding  that,  in  consideration  of 
the  premium  paid,  a  policy  should  be  issued  piiy. 


ance   aue  —  ixoiice    oi    irusi   lo    muiv^aiicc,  •             ,  .     r^  \    ■    ■•        -c    .\             ■   » 

-.    ,      ,    T             •»   •     n  o   I.V  „it«   rm.rt   to  ivWe  to  the  plaintiffs,  to  indemnify  them  agmnst 

effect  of— In   a  suit  in  the  Knuity   I  ourt  to  .,,.,.              , ,   i             ^       \ 

,    ,            ,  .       ,  ,  „  „i„i„Hff  n«  ,l„p  nn  '  088.     ^   the  pleadiiigs  could   be    construed  of 

recover  a  balance  claimed  by  plaintiH  as  due  on  '                 »            =>                           »    i      1 1 1 

a  mortgage,  judgment  was  given  in  that  Court  -'e"<l«'l  t°  cover  the  case,  judgment  should  be 

in   plaintiff's  favor.      On   appeal,   it   appeared  B'^en  for  plaintifls. 


that  the  defendant,  J.  C,  had  received  a  sum  of 
money  belonging  to  his  infant  son,  A.  M.  C,  to 
invest  in  real  estate.  He  appropriated  a  con- 
siderable portion  of  the  money  so  received  to 


Wyman  tt  al.  v.  The  Imperial  Fire  In/t. 
Co.  et  al.,  20  N.  S.  R.,  (8  R.  &  G.),  487. 

40.    Mortgage  executed  In  blank-Plain. 

other  purposes.  .Subsequently  he  purchased  a  tjffg'  claim  for  relief  was  based  on  the  charge 
property  from  McD.,  taking  the  deed  to  him-  \  that  a  mortgage  of  a  vessel,  executed  in  blank 
self  as  "trustee  of  A.  M.  C,  of  the  City  of  H.,  |  and  delivered  to  one  of  the  defendants  to  be  filled 
an  infant."  For  the  purpose  of  raising  the  pur- 1  up,  had  been  filled  up  for  a  greater  number  of 
chase  money  of  the  property  so  bought,  he  gave  j  shares  and  a  larger  amount  than  was  warranted, 
a  mortgage  to  the  plaintiff,  in  which  he  described  ;  ^nd  that  the  other  and  real  defendant,  to  wliom 
himself  as  "trustee  of  A.  M.  C,  of  the  City  of  !  ^he  mortgage  had  been  transferred,  was  nut  a 
H..  an  infant."  I  honajide  purchaser,  and  had  notice  of  the  fraud. 

Held,  (1.)  that  as  between  the  trustee  and  the  |  There  was  no  evidence  to  impeach  the  honajidii 
cestui  que  tru.it,  the  deed  to  the  former  gave  ^f  the  defendants,  and,  as  to  notice,  the  evidence 
the  latter  an   interest  in  the  land    purchased 


■which  would  be  protected,  and  rights  which 
would  be  enforced  by  the  Court. 

(2.)  That  the  words  used  in  the  deeds,  "  trus- 
tee," &c.,  justified  a  legal  inference  of  knowledge 
on  the  part  of  the  plaintiff  of  the  existence  of  the 
trust  for  the  beneiit  of  A.  M.  V.,  which  placed 
the  plaintiff,  with  respect  to  the  rights  of  the 
infant,  in  no  better  position  than  the  trustee. 

The  appeal  was  allowed 


was  such  as  to  lead  the  Court  to  the  conclusion 

that  when  he  purchased  he  had  no  notice  of  any 

adverse  claim,  or  that  the  title  was  questionable. 

Held,  that  the  plaintiffs  were  not  entitled  to 

relief. 

Stewart  et  al.  v.  Boak  et  al.,  R.  E.  D.,  46/. 


41.  Mortgage  given  In  ft-aud  of  purchaser 

who,  to  protect  himself,  in  effect  pays  it  off- 

,f^ Purchaser's  rights— Plaintiffs  purchased  certain 

Fitch  v.  Currie  et  al.,  7  R.  &  0.,  .'522 ;  |  ^^^^  estate,  subject  to  a  mortgage  held  by  W., 
8  C.  L.  T.,  59.  g^g  guardian,  for  S.5,840,  and  sold  a  portion  to 
defendant,  who  was  aware  of  the  mortgage,  for 
S7,000.  Defendant  paid  §1,400  in  cash,  and  re- 
ceived a  deed,  with  an  absolute  warranty  and 
covenants  for  title,  without  reference  tn  the 
mortgage.  On  the  same  day  plaintiffs  gave  a 
mortgage  of  the  whole  property  to  K.  for  S.S,760, 
of  which  defendant  had  no  knowledge  when  lie 
made  his  purchase,  and  which  was  recorded  lie- 
fore  plaintiffs'  deed.  Defendant  gave  plaintiU's 
a  mortgage  for  the  balance  of  the  purchase 
money.  The  mortgage  to  W.  was  foreclosed 
and  the  property  sold  by  the  Sheriff,  and  defen- 


39.    Mortgagee  cannot  sue  on  policy  issued 

in  name  of  mortgagor— The  defendant  company 
issued  a  policy  of  fire  insurance  in  the  name  of 
T.  on  property  of  T.,  of  which  the  plaintiff 
company  were  mortgagees.  T.  having  release* 
his  equity  of  redemption  to  plaintiffs  in  satis- 
faction of  their  debt,  plaintiffs  continued  to  pay 
the  premiums  upon  the  policy,  but  without 
having  received  any  assignment  of  T's  interest 
in  it.  When  the  last  premium  became  due  it 
was  paid  by  plaintiffs  as  usual,  and  it  was  agreed 


901 


MORTGAGE. 


902 


(lant  was  obli/u'ed,  in  order  to  protect  himself,  to 
Iwciime  the  purchaser,  paying  for  the  wiiolo  pro- 
perty inchitletl  in  the  mortgage,  $8,85(1,  which 
was  appHed  to  tlie  payment  of  tlie  amount  due 
on  the  two  mortgagcH  to  \V.  and  K.,  and  to  a 
judgnient  recorded  agaiiiHt  tlie  property.  I'lain- 
tiffs  tlien  brought  an  action  against  the  defend- 
ant on  the  covenant  in  his  mortgage. 

Htid,  that  they  had  no  eijuitahle  right  to  call 
for  payment  of  the  purcluise  money  until  they 
had  cleared  defendant's  title  ;  that  defendant 
was  entitled  in  equity  to  pay  off  the  mortgages, 
and  liad  in  effect  done  so,  and  to  recover  from 
the  plaintiffs  the  amount  so  paid,  over  and  above 
the  purchase  money,  and  that  before  plaintifl's 
could  repossess  themselves  of  the  portion  not 
included  in  the  conveyance  to  defendant,  they 
would  be  obliged  to  pay  him  the  difference  be- 
tween the  amount  at  which  he  had  purchased 
and  the  amount  he  had  been  t)bliged  to  pay, 

(Juacre,  whether  the  defendant  could  be  com- 
pelled to  convey,  even  ou  the  terms  mentioned. 
Barton  tt  al,  v.  Baldwin,  R.  E.  D,,  366. 

42.  Mortgage   giren    priority   over  an 

unrecorded  deed— Concealment— .1.  R.  McL. 
being  entitled  by  right  of  his  wife  to  an  interest 
in  certain  real  and  personal  property,  being  an 
estate  of  which  M.  the  wife  was  one  of  the  heirs, 
they  joined  in  a  mortgage  to  plaintiff  of  all  their 
said  interest.  On  plaintiff  seeking  repayment 
of  the  amount  loaned,  defendant,  one  of  the 
executors  of  the  said  estate,  resisted  the  claim  on 
the  ground  that,  six  years  previously,  J.  R. 
McL.  and  his  wife  had  conveyed  all  their  inter- 
est in  said  estate  by  deed  poll  to  her  mother. 
This  deed  was  never  recorded,  and  the  plaintiff 
did  not  know  and  had  no  means  of  knowing  of 
its  existence.  The  mother,  although  aware  of 
plaintiff's  mortgage  at  the  time  it  was  made, 
concealed  from  him  the  fact  of  the  deed  to  her. 
Held,  that  having  so  concealed  from  plaintiff 
what  it  was  her  duty  to  reveal  to  him,  the 
mortgage  should  be  given  priority  over  the  deed, 
and  plaintiff's  claim  satisfied  out  of  the  estate. 
West  v,  Mathesm  tt  al.,  3  N.  S.  D.,  429. 

43.  Mortgagee- Insurance  of  bis  Interest 

in  vessel— 

See  INSURANCE,  MARINE. 

44.  Mortgagee— Insurance  payable  to,  In 

case  of  loss- Preliminary  proof— Who  may 
maintain  action — Where  property  was  insured 
in  the  name  of  0. ,  but  the  policy  contained  the 
following  clause :  "  loss,  if  any,  payable  to  the 
order  of  B.,  if  claimed  within  sixty  days  after 
proof,  his  interest  therein  being  as  mortgagee." 


H((d,  Dodd,  J.,  ditxinliii;/,  that  B.  might  bring 
an  action  on  the  policy  in  his  own  name,  and  that 
he  must  be  taken  to  be  the  [wirty  insured. 

Hdd,  alio,  that  it  was  no  objection  to  IVa 
recovery,  that  the  preliminary  proofs  were 
furnished  by  him  and  not  by  O. 

Brunh  V.  ^■Etiia  Inxxirance  Co.,  1  Old.,  459. 


45.    Mortgage  not  yet  due- Restraining 

sale  under— Terms  —  Where  trustees,  having 
power  to  sell  a  mining  property  conveyed  to 
them  by  way  of  mortgage  to  secure  the  payment 
of  interest  on  bonds  issued  by  the  Mining  Com- 
pany, the  principal  of  which  was  not  yet  due, 
advertised  the  property  for  sale,  instead  of  pro- 
ceeding by  way  of  foreclosure,  and  the  plaintiffs, 
who  had  the  equity  of  redemption,  although 
aware  of  the  intention  to  sell,  delayed  seeking 
the  information  necessary  to  enable  them  to 
prevent  a  sale  to  their  injury,  and  applied  for 
an  injunction  only  two  days  before  the  day  of 
sale  the  Court  granted  the  injunction  upon 
payment  by  the  mortgagors  f)f  the  interest  on 
the  outstanding  bonds,  and  their  undertaking  to 
pay  the  expenses  incurred  in  preparing  for  the 
sale. 

Wood  tt  al.  V.  Harett  al.,  R.  E.  D.,  201. 


46.    Mortgage  of  personal  property  — 

Right  to  sell— H.  &  M.  McDonald  made  a  bill 
I  of  sale  of  personal  property,  dated  July  5th, 
i  1876,  conditioned  for  the  payment  of  §400  on 
;  the  5th  July,  1877,  and  became  insolvent  24th 
I  April,  1877.  On  the  8th  June,  1877,  to  avoid 
[  leaving  the  property  on  the  premises  liable  to 
;  be  distrained  for  rent,  which  accrued  due  on  the 
;  r2th  of  June,  the  insolvent's  assignee  and  the 
j  holder  of  the  bill  of  sale,  after  each  advertising 
I  a  sale  of  the  property  to  which  the  other  oi>iect- 
I  ed,  agreed  that  it  should  be  sold,  reserving  the 
proceeds  for  the  adjudication  of  the  Court. 

^eld,  that  the  holder  of  the  bill  of  sale  was 
entitled  to  the  proceeds,  which  were  less  than 
the  amount  due  him,  but  that  the  decree  should 
be  without  costs  as  the  controversy  had  arisen 
out  of  an  asserted  right  to  sell  which  did  nob 
exist  in  either  party. 

In  re  O'Mullin  and  Johnstone,  R.  E.  D.,  157. 

47.  Mortgage  of  property,  to  wblcb  mortga- 
gor has  reversion,  by  him — Foreclosure  before 
property  vests — Hon.  James  Tobin,  by  his  will, 
devised  lands  to  his  executors  to  their  use  during 
the  natural  life  of  his  son,  Michael  Tobin,  upon 
trust  to  permit  his  said  son  to  occupy  the  said 
premises  and  receive  the  rents,  after  certain  de- 
ductions, for  his  own  use  and  benefit,  and  from 


903 


MORTGAGE. 


904 


and  immediately  after  tiie  decease  of  his  said 
son  Michael,  in  trust  to  convey  and  assure  said 
premises  unto  the  child  or  children  of  his  said 
son  Michael,  living  at  the  time  of  the  decease  of 
his  said  son  Michael,  and  to  their  -sue.  Defend- 
ant, 0.  son  of  said  Michael  Tobin,  mortgaged  his 
interest  to  plaintiff,  and  in  answer  to  the  writ 
of  foreclosure,  set  out  the  above  facts,  adding 
that  said  Micliael  Tobin  was  still  living,  and 
that  some  of  his  children  were  married  and  had 
lawful  issue. 

Held,  that  defendant,  having  mortgaged  his 
interest  to  plaintiff,  could  not  repudiate  the 
transaction,  and  ask  to  have  the  mortgage  de- 
clared inoperative,  while  retaining  the  amount 
received  as  consideration  for  it ;  and  further, 
that  plaintiff  was  not  bound  to  wait  until  the 
title  of  the  mortgagor  became  complete,  before 

foreclosing. 

Law-sou  v.  Tohin,  R.  E.  1).,  111. 


48.  Mortgages  of  two  properties-Fore- 
closure and  sale  of  one— Deticiency — Right  to 
redeem  other  without  paying  such  deficiency 
— Building  Society  rules— Where  a  mortgagor 
by  two  distinct  transactions  has  mortgaged  two 
properties,  one  of  w  liich  on  sale  under  foreclo- 
sure lias  not  realized  the  sum  for  which  it  was 
nortgaged,  the  mortgagor  will  be  allowed  to 
redeem  the  other  property  without  payment  of 
the  l)alance  due  on  the  first  mortgage. 

Where  there  is  a  discrepancy  between  the 
rules  of  a  Building  Society  and  the  tables  annexed 
thereto,  and  referred  to  in  them,  the  tables  will 
govern,  and  a  mortgagor  of  the  Society  will  be 
allowed  to  redeem  on  payment  of  the  sum  indi- 
cated by  the  tables. 

Slayttr  v.  Johmton  et  al,  1  Old.,  502. 


1 9.  Mortgage  of  ungranted  Crown  lands- 
Thomas  and  John  Archibald  mortgaged  to  plain- 
tiff  two  third  parts  of  several  lots  of  ungranted 
Crown  lands  applied  for  and  paid  for  by  Eller- 
shausen  and  others,  the  right  to  receive  which  j 
was  by  them  transferred  to  the  St.  Croix  Manu- 
facturing Company  (said  Archibalds  having 
become  interested  therein  to  the  extent  of 
two  third  parts).  Before  the  grants  were  taken 
out  the  Archibalds  became  insolvent,  and  de- 
fendants, as  trustees  for  creditors,  procured  said 
grants  of  land  based  on  the  original  application, 
but  they  selected  the  lots  in  localities  somewhat 
diflferent  from  those  indicated  in  such  application. 

Held,  that  plaintiflF  had  a  lien  on  two-thirds 
of  the  land  comprised  in  the  grants  for  the  debt 
intended  to  be  secured  by  the  mortgage,  and 
that  an  order  must  pass  that  the  amount  thereof 


'  should  be  paid  to  him,  otherwise  said  two-thirds 

of  the  land  to  be  sold  to  satisfy  plaintiffs  claim. 

Stephens  V.  Twiniim  et  al.,  R.  E.  I).,  176, 

:    50.    Mortgage  recorded  -  Then  attach. 

ment— Then  assignment  of  mortgage— Attach- 

'  ing  creditors  do  not  acquire  priority    over 

assignee— The  defendant,  holding  a  mortgage 

on  certain  real  estate  which  was  duly  recorded, 

assigned  the  same  to  the  plaintiffs,  after  wiiicli 

I  defendant  purchased  the  ecjuity  of  redemption, 

and  the  deed  was  duly  recorded.      Attachments 

'  were  then  issued  against  the  defendant  as  an 

'  absconding   debtor,   and    the    attachments,  as 

well  as  the   judgments  entered  thereon,  were 

'  placed  on  record  before  the  assignment  of  the 

mortgage.       The  attaching   creditors  claimed, 

under  4th  Revised  Statutes,  c.  79.  sees.  19  and 

22,  to  have  priority,  a.v  against  the  assignee  of 

the  mortgage. 

Held,  that  the  mortgage  remained  a  lien  ou 
the  property,  whether  tlie  assignment  was  re- 
corded or  not,  and  tliat  the  attaching  creditors 
luid  not  the  priority  claimed. 

Raijmoml  et  al.  v.  liuhards,  R.  E.  1).,  4'23. 

51.    Mortgagee,  rights  of,  as  against  the 

mortgagor's  assignees— T.  A.   and  J.  A.  were 
'  entitled  to  receive  grants  of  Crown  lands  uiion 
I  whidi  the  price  had  l)een  paid  to  tlieCioveni- 
ment.     liefore  taking  out   their  grants  tliey  had 
mortgaged   their    rights    to    plaintiflF.      Suhse- 
(juently   they   became    insolvent,   and   made  a 
'  general  assignment  to  defendants  for  tiie  benefit 
i  of  their   creditors.      The  defendants,   as  sucii 
'  assignees,  applied  for  the  grants  and  had  tliem 
'  made  out  to  themselves,  selecting  lots  in  differ- 
'  ent  localities  from  tiiose  indicated  in  tlie  origi- 
I  nal  application,  but  the  money  paid  for  tlieni 
j  was  that  paid  on  the  original  application.    On 
I  the  plaintiflF  seeking  repayment  of  the  amount 
loaned  by  him  to  T.  A.  and  J.  A.,  the  defen- 
dants refused  to  satisfy  his  claim. 

Held,  that  as  assignees  of  the  A's,  they  had 
only  succeeded  to  such  rights  as  tlie  A's  posses- 
sed at  the  time  of  the  assignment,  and  those 
rights  having  been  mortgaged  to  plaintiff,  his 
claim  should  first  be  satisfied  before  they  could 
deal  with  the  land  granted  to  them. 

Stephens  v.  Twiniwj  et  al.,  3  N.  S.  D.,  445. 


52.    Mortgagee-Right  of  entry-A  mort- 

gfagee,  in  the  absence  of  any  express  covenant  or 
stipulation  to  the  contrary,  is  entitled  to  enter 
upon  and  take  possession  of  the  lands  and  prem 
ises  conveyed  in  the  mortgage  at  any  time, 
although  as  an  almost  invariable  rule  in  tins 
country,  the  mortgagor  remains  in  possession 


905 


MORTGAGE. 


906 


until  default  in  fulfilmeiit  of  the  conditions  of 
the  mortgage. 

Dhhh  v.  Mi/kr,  3  N.  S.  D.,  347. 


53.    Mortgagor  cannot  maintain  eject< 

ment  after  failure  to  perform  conditions  in 
mortgage  without  re-conveyance — The  plain- 
tift'  in  ejectment  claimed  under  a  .Sheriff's  deed 
to  liim  as  trustee  of  his  sister  M.  and  her  child- 
ren. On  the  same  date  on  which  the  deed  was 
executed  plaintiff  executed  a  mortgage  of  the 
same  lands  to  C.  H.  M.  B.,  the  condition  of 
wliich  was  that  if  the  principal  and  interest  were 
paid  in  one  year,  the  mortgage  should  be  void. 
The  principal  and  interest  were  not  jiaid  until 
after  the  expiration  of  the  year,  when  they  were 
puid  by  M.,  and  an  assignment  of  the  mortgage 
made  to  her  children,  J.  M.  and  F.  M. 

Letters  of  guardianshir  of  the  children  were 
granted  to  the  defendant,  who  collected  the 
rents  of  the  property. 

ffttd,  that  the  conditions  of  the  mortgage  not  | 

having    been   fultilled,    in   the  absence  of  any  i 

re-convpyance  to  the  plaintiff,  the  latter  could  j 

not  maintain  ejectment.  | 

Mahon  v.  Gannon,  7  R.  &  (1.,  218 ; 

7  C.  L.  T.,  325.  j 

51.   Partial  release-itule  as  to,  in  rules , 

of  Nova  Scotia  Building  Society — Reference 
clause  in  such  rules — Usury— Plaintiffs  as 
Trustees  of  the  N.  S.  Permanent  Benefit  Building 
.Society,  advanced  to  defendant  a  sum  of  money 
on  the  security  of  five  mortgages,  the  foreclosure 
of  which  was  sought  in  this  suit.  Defendant, 
in  his  answer,  claimed  that  he  was  entitled  to  a 
release  of  a  portion  of  the  mortgaged  property 
under  the  6th  rule,  providing  "that  the  Trus- 
tees sliall  be  empowered,  by  direction  of  the 
hoard,  at  any  period,  to  release  any  portion  of 
the  property  mortgaged,  on  being  satisfied,  in 
manner  before  mentioned,  •  *  *  that  the 
remaining  portion  of  the  property  is  of  sufficient 
value  to  secure  the  Society. "  Defendant  alleged 
that  tjie  directors  had  refused  such  release, 
although  the  amounts  due  under  the  mortgages 
had  been  largely  reduced,  and  had  further  re- 
fused to  submit  the  matter  to  arbitration,  as 
(leuianded  by  him  under  the  29th  rule,  provid- 
ing "tiiat  the  board,  for  the  time  being,  *  *  * 
shall  determine  all  disputes  concerning  the 
affairs  of  the  Society,  *  •  *  which  shall  or 
may  hereafter  arise  between  the  trustees,  offi- 
cers, or  other  shareholders  of  the  Society,  *  *  * 
and,  if  the  decision  be  not  satisfactory,  refer- 
ence shall  be  made  to  arbitration."  Defendant 
ftlso  pleaded  usury,  as  invalidating  the  mort- 
gages, the  Society   having  taken,  by  way  of  a 


bonus  or  premium,  a  sum  exceeding  the  legal 
rate  of  interest. 

//eld,  that  the  rule  providing  for  the  partial 
release  of  the  property  left  the  matter  to  the 
discretion  of  the  directors  ;  that  the  demaiul 
and  refusal  of  such  roWse  did  not  constitute  a 
"difference"  or  "dispute,"  wliich  defendauu 
could  insist  on  having  referred  to  arbitration 
under  the  29th  rule  ;  that,  even  in  the  absence 
of  legislation,  plaintiffs  were  justified  in  taking 
the  bonus  or  premium  in  addition  to  interest, 
the  transaction  being  in  the  nature  of  an 
advance  of  partnership  funds,  in  which  defend- 
ant was  interested  in  common  with  other  mem- 
bers of  the  Society  ;  and,  were  it  not  so,  as  the 
evidence  showed  that  the  plaintiffs  were  entitled 
to  the  benefit  of  an  Act  enabling  them  to  take 
such  premiums,  although  their  right  to  do  so 
was  not  sufficiently  set  out,  they  would  be  en- 
titled to  amend  thi  declaration  or  reply. 

Defendant  having  alleged  that  the  law  had  not 
been  complied  with  in  the  organization  of  the 
Society,  relyiuj;  on  the  objection  that  the  rules 
were  not  duly  ce.'tified  as  recjuired  by  law. 

Held,  that,  assuming  the  objection  to  be  prop- 
erly pleaded  and  sustained  by  the  evidence,  it 
would  not  be  available,  as  the  plaintiffs  could 
sustain  the  action  on  the  mortgage  without 
the  aid  of  the  Statute. 

Almon  et  al.  v.  Fairbanks,  1  R.  &  C,  407. 

55.  Parties  to  foreclosure  suit— Matthew 

Chisholrn  mortgaged  land  to  Archibald  and 
James  Chisholrn,  the  former  of  whom  assigned 
his  interest  to  plaintiff,  who  brought  suit  to 
foreclose  the  mortgage  against  Matthew  Chis- 
holm  alone.  Subsequently  the  writ  was  amend- 
ed by  making  Archibald  and  James  Chisholrn 
and  John  T.  .Smith  defendants,  the  latter  having 
taken  an  assignment  of  the  mortgage  from  Archi- 
bald and  James  Chisholrn,  subsequent  to  the 
assignment  by  Archibald  Chisholrn  to  plaintiff. 
//ehl,  that  Archibald  Chisholrn,  having  a 
separate  interest,  had  a  right  to  assign  it  to 
plaintiff;  that  aUhough  plaintiff  could  not  sus- 
tain his  suit  as  originally  bi'ought  against  the 
mortgagor  alone,  the  writ,  as  amended,  brought 
all  the  parties  interested  before  the  Court,  and 
that  although  the  onlinary  course  would  have 
been  to  make  Smith  a  co-plaintiff,  yet  as  he 
denied  plaintiff's  rights  under  the  assignment, 
he  had  been  properly  ma<le  a  defendant. 

Sihky  v.  Chixholm  et  al.,  R.  E.  D.,  167. 

56.  Partition  suit  —  Outstanding  mort- 
gages no  bar  to — The  plaintiff  brought  suit 
for  a  partition  of  certain  lands  under  the  follow- 
ing, among  other  circumstances :    the  defend- 


907 


MORTGAGE. 


908 


ant  and  his  brother  were  doviseea  under  their 
father's  will  of  a  large  tract  of  land  which  they 
held  as  tenants  in  common.  They  executed  two 
mortgages  thereon  which  were  outstanding  at 
the  time  of  action  brought. 

Held,  that  the  outstanding  mortgages  were  no 
bar  to  the  partition  sought. 

LeCain  v.  Hosterman,  2  N.  S.  D.,  413, 

57.  Payments  by  instalments-Computa- 
tion of  amount  due  —  Tlie  plaintiff  company 
was  registered  under  the  Imperial  Act,  25  and 
26  Vic,  cap.  89,  and  claimed  to  do  business  in 
Canada  under  37  Vic,  cap.  49.  The  object  of 
the  Socioty  was  expressed  to  be  to  advance 
money  in  various  sums  to  such  members  as  were 
desirous  of  receiving  it,  the  repayment  to  be 
secured  on  real  or  other  security  ;  and  in  the 
Article  of  the  Constitution  entitled  "  Foreclosure 
and  Redemption,"  it  was  provided  that  if  any 
member  should  desire  to  pay  in  advance  all  or 
any  portion  of  an  appropriation  or  premium,  he 
shall  be  at  liberty  to  do  so,  and  shall  be  entitled 
to  such  discount  as  the  actuary  may  recommend. 
The  writ  alleged  that,  the  mortgagee  having  be- 
come a  member  of  the  Society,  £300  was  ad- 
vanced to  him  at  a  premium  of  £379  6s.  8d.,  the 
advance  and  premium  to  be  repayable  in  quarter- 
ly instalments  in  twenty  years ;  and  that, 
according  to  the  regulations  of  the  Society,  if 
any  instalment  or  fine  remained  in  arrears  for 
three  months,  the  whole  sum  advanced,  together 
with  the  premium,  should  become  due.  The 
proviso  and  covenants  in  the  mortgage  were  to 
this  etTect,  and  the  plaintiff  claimed  £675  7s. 
8d.,  although  the  mortgagor  had  only  had  the 
sum  of  £300  for  nine  months. 

Held,  that  the  plaintiffs  were  only  entitled  to 
the  quarterly  instalments  up  to  the  time  of 
foreclosure  and  sale,  and  that  the  amount  of 
principal  due  should  be  ascertained  by  com- 
puting how  much  of  the  quarterly  payments 
represented  principal,  and  how  much  interest. 

Matferwn  v.  Elderjield,  L.  R.,  4  Ch.,  207,  dis- 
tinguished. 

The.  Alliance  Society  of  London  v.  Chisholm., 

R.  E.  D.,  414. 

59.    Property  Included   In  -Mistake — 

Estoppel  —  Defendants  desiring  to  borrow 
money  on  mortgage,  took  the  plaintiff,  who  was 
the  solicitor  of  the  mortgagee,  upon  the  land 
offered  r.s  security,  and  pointed  out  the  Ixtun- 
daries  of  the  land.  Plaintiff  drew  up  a  mcrtgage 
in  which  the  land  was  described  as  that  on  which 
defendants  resided,  but  the  boundaries  given 
were  shown  by  parol  evidence  not  to  include  the 
portion  on  which  they  resided,  although  it  was 


clearly  the  intention  of  all  parties  that  this  por- 
tion should  be  included  in  the  mortgage.  Plain- 
tiff having  taken  an  assignment  of  the  mortgage, 
foreclosed  it,  and  bought  in  the  property  at 
Sheriff's  sale,  the  description  in  the  Sheriff's 
deed  following  that  in  the  mortgage.  Plaintiff 
then  brought  action  of  ejectment,  and  defend- 
ants, as  to  this  portion,  pleaded  that  plaintiff 
had  no  title. 

Held,  per  James,  J.,  that  defendants  were  not 
estopped  from  saying  that  the  land  in  questioD 
was  not  included  in  the  mortgage,  but  that  tlie 
verdict  for  plaintiff  must  be  sustained,  as  it  was 
the  clear  intention  to  include  the  portion  on  which 
defendants  resided,  and  the  ambiguity  had  been 
cleared  up  by  parol  evidence. 

Per  Young,  C.  J.,  DesBarres  and  Smith,  J  J. 
—  That  the  defendant  was  estopped  by  his 
representation  that  the  whole  of  the  land, 
including  the  part  in  question,  was  to  be  com- 
prised in  the  mortgage. 

Fuilerton  v.  Ibbitaon  et  al.,  3  H.  &  C,  225. 

59.  Puisne  mortgagee— Foreclosure  by- 
Practice — Where  puisne  mortgagee  forecloses, 
there  should  be  a  reference  to  a  Master  to  find 
what  is  due  on  prior  mortgage.  If  the  first 
mortgagee  does  not  go  before  the  Master  and  the 
amount  due  him  cannot  be  reported,  then  tiiere 
may  be  an  application  for  an  order  of  sale,  sub- 
ject to  prior  mortgage. 

fer  Wilkins,  J. — I  think  that  bf  fore  puisne 
mortgagee  forecloses,  he  ought  to  give  notice  to 
prior  mortgagees  of  his  intention  to  do  so. 

Creiijhton  v.  Moore  et  al,  2  Thorn.,  227. 

60.  Receipt  Indorsed  —  Evidence  —  The 

body  of  a  deed  acknowledged  the  payment  of  tlie 
purchase  money  in  the  usual  form,  and  a  receipt 
therefor  signed  by  plaintiff  was  also  indorsed, 
but  subsc(iuent  to  the  sale  a  dispute  arose  as  to 

j  whether  the  amount  stated  in  the  deed  included 

!  a  mortgage  existing  on  the  property,  or  whether 

^  the  purchaser  M'as  to  pay  that  also. 

I      Plaintiff  having  sued  for  the  amount  of  the 

I  mortgage, 

i      Held,  that  in  the  face  of  the  indorsed  receipt, 

i  and  of  certain  evidence  adduced  in  confirmation 

j  thereof,  he  could  not  recover. 

!  McDonald  v.  5/ow,  3  N.  S.  D.,  283. 

I    61.  Registration  of— Proof  of- In  an  action 

for  breach  of  covenant  for  title  contained  in  a 
deed  from  defen((ant  to  plaintiff,  the  plaintiff  put 

j  in  evidence  a  mortgage  on  which  was  indorsed 
whai  purported  to  be  a  certificate  of  registration. 

j  The  execution  )f  the  mortgage  was  proved,  but 
the  certificate  was  not  proved  to  have  been 
signed  by  the  proper  officer,  nor  was  it  tendered 
as  evidence  independently  of  the  mortgage. 


909 


MORTGAGE. 


910 


Held,  that  as  the  plaintiff  had  no  notice 
of  the  mortgage,  his  title  was  good  unless  the 
mortgage  was  registered  prior  to  the  registration 
of  the  deed,  and  that  in  order  to  prove  such 
registration,  it  was  necessary  to  show  that  tlie 
certificate  had  been  signed  by  the  proper  ofiBcer, 
tlie  mere  production  of  a  paper  purportimj  to  be 
a  certificate  not  being  sufficient  under  Revised 
Statutes,  chapter  79,  section  18. 

Gould  V.  McGregor,  1  R.  &  G.,  339. 

6a.  Release— Action  to  procure  execution 

of— D.  made  a  mortgage  to  defendants'  testator 
to  secure  the  payment  of  three  promissory  notes. 
The  notes  were  paid  and  handed  over  to  D., 
upwards  of  twenty  years  before  this  action  was 
brought  by  D.  to  compel  defendants  to  execute 
a  release  of  the  mortgage.  During  the  subse- 
quent period  no  payments  were  made  by  D.  or 
demanded  of  him,  and  the  estate  of  testator  was 
settled  without  anj'  reference  to  the  mortgage 
as  an  outstanding  debt  due  the  estate.  After 
bringing  the  action  D.  became  insolvent  and 
made  an  assignment  under  the  Insolvent  Act, 
and  his  assignee  intervening,  under  an  order  of 
the  Court,  became  plaintiff  in  the  suit. 

Hdd,  that  the  defendants  must  be  decreed  to 
execute  a  release  of  the  mortgage,  though  with- 
out costs,  they  not  having  opposed  the  proceed- 
ings of  plaintiff. 

Bell.  Aiiiijnee,  v.  Brown  et  al, 

R.  E.  D.,  20. 

63.  Release  of— Evidence  of  memo,  by 

testator  to  effect  that  mortgage  was  not  pay- 
able to  heirs,  executors,  &c.,  not  evidence  of 
release— Plaintiff,  as  administratrix,  sought  to 
foieck-3  a  mortgage  for  £200  made  by  defend- 
ant, who,  in  his  answer,  set  out  a  series  of  trans- 
actions with  the  deceased  in  regard  to  the  mort- 
gage, and  further  alleged  that  deceased  mort- 
gagee had  delivered  to  him  a  memorandum, 
signed  by  him,  as  follows :—"  Ths  mortgage 
wliichlhold  of  W.  J.  W.,  bearing  date,  &c., 
for  £;?00  is  not  payable  to  my  heirs,  executors 
or  administrators  after  my  death,— I.  W.  W." 
The  memorandum  was  not  produced,  but  on 
proof  of  loss,  secondary  evidence  was  gfiven, 
which  the  Judge  considered  of  a  suspicious 
character. 

Held,  that  the  memorandum,  even  if  there 
were  no  suspicious  circumstances  about  it,  would 
not  operate  as  a  release  of  the  mortgage,  either 
at  law  or  in  equity,  and  that  plaintiff  was 
entitled  to  a  decree. 

fVoodworth  v.  Woodwwth,  R.  E.  D.,  337. 

W.  Release— Burden  of  proof- 

Se^  NEW  TRIAL,  30. 


65.  RIgbt  to  selie  chattels  under  mort- 
gage— The  plaintiff  E.  entered  into  a  contract 
with  Her  Majesty,  represented  by  the  Minister 
of  Public  Works  of  Canada,  for  the  construction 
of  certain  public  works  at  Mabou,  one  section 
of  the  contract  providing  in  substance  that  it 
should  be  in  the  power  of  Her  Majesty  to  make 
payments  or  advances  on  materials,  etc.,  to 
be  thenceforward  vested  in  and  held  as  collateral 
security  by  Her  Majesty  for  the  due  fulfilment 
of  the  contract,  but  to  remain  at  the  risk  of  the 
plaintiff  E.,  until  finally  used  and  accepted  as 
part  of  the  work ;  the  plaintiff,  however,  to 
exercise  no  acts  of  ownership  or  control  over 
the  said  materials  without  the  permission  of  the 
Minister  in  writing.  A  mortgage  of  a  dredge, 
etc. ,  was  afterwards  made  by  the  plaintiff  E.  to 
Her  Majesty,  purporting  to  be  in  consideration 
of  $20,000  advanced,  and  conditioned  for  the 
repayment  of  the  sum  of  $20,000,  with  interest, 
in  one  year  from  date  of  execution.  May  24, 
1872.  The  dredge,  etc.,  were  seized  by  defend- 
ant, acting  collector  of  customs,  under  orders 
from  the  Commissioner  of  Customs,  Ottawa, 
some  time  in  June,  1874,  and  an  action  of 
replevin  was  brought  by  plaintiffs  to  recover  the 
same.  It  was  proved  on  the  trial  by  the  admis- 
sion of  the  plaintiff  E.  that  a  sum  of  at  least 
$8,000  had  been  advanced  under  the  mortgage, 
but  the  plaintiffs  claimed  that  a  balance  was 
due  from  the  department  on  account  of  work 
done  under  the  contract  and  specification,  and 
for  extras,  exceeding  all  sums  advanced  or  paid 
to  the  plaintiff  E.  by  the  department. 

Held,  that  under  the  contract  and  the  mort- 
gage, an  advance  having  been  proved,  the  Crown 
had  a  right  to  authorize  the  defendant  to  effect 
seizure  of  the  property,  and  that  the  evidence 
given  of  work  done  under  the  contract  was 
against  the  policy  of  the  Public  Works  Act,  31 
Vic,  c.  12,  and  furnished  no  answer  to  the 
claim  of  the  Crown  upon  the  materials. 

Evam  et  al.  v.  Has,  1  R.  &  C,  163. 

66.  Sale  — Order  Of— Discretion  — The 

granting  of  an  order  of  sale  of  mortgaged  premi- 
ses after  foreclosure,  where  the  interest  of  the 
mortgagor  is  only  contimjent,  is  discretionary 
with  the  Court  of  Equity  ;  and  that  Court  hav- 
ing refused  an  order  of  sale  in  such  a  case,  when 
the  mortgagor  made  default,  the  Court  dismissed 
the  appeal  therefrom. 
Wilkins  J.,  dissenting. 

Hutchinson  v.  H'itham  et  al.,  1  Old.,  640. 

67.  Sale  of  premises  sought,  on  non* 

payment  of  mortgage,  under  4th  R.  S.,  c.  103 
—Practice — A  writ  of   summons   was   issued 


911 


MORTGAGE. 


912 


commanfling  defendants  to  apj.  r  in  the  Su- 
preme Court  at  Truro  at  the  suit  of  tlie  plain- 
tiffs, who  alleged  that  defendants  were  indebted 
for  principal  and  interest  on  a  mortgage  reciting 
the  proviso  for  redemption.  The  writ  procee<led 
to  set  out  an  amount  due  on  a  promissory  note 
of  defendants  for  the  same  amount  as  the  mort- 
gage, given  as  collateral  security,  and  prayed 
that  in  default  of  payment  the  equity  of  redemp- 
tion should  be  foreclosed  and  a  sale  of  the  prem- 
ises made.  Defendants  treated  the  suit  as  one 
brought  in  this  Court  under  4th  R.  S.  cap.  lO.S, 
and  not  as  an  equity  suit,  and  pleaded  various 
grounds  of  defence.  Tlie  cause  was  twice  tried 
and  the  verdict  for  defendants  was  in  each  case 
set  aside  by  the  Court  in  banco.  Defendants 
then  took  a  rule  iii-ii  to  rescind  the  rules  setting 
aside  the  verdict  on  the  ground  that  the  Court 
had  no  jurisdiction,  the  suit  being  an  equity 
case. 

Hfld,  that  although  the  writ  was  not  in  strict 
conformity  with  the  procedure  pointed  out  in 
cap.  103,  yet  the  Court  had  jurisdiction  to  deal 
with  the  case,  not  as  one  brought  for  the  fore- 
closure of  an  equitj'  of  redenij  tion,  but  as  one 
in  which  on  non-payment  of  vhe  mortgage  and 
note  an  order  of  sale  of  rhe  premises  was 
sought  and  it  was  too  late  to  raise  the  question 
of  want  of  jurisdiction  grounded  on  an  infor- 
mality in  the  writ  which  had  been  waived  by 
defendants  pleading  to  and  defending  the  cause 
as  an  action  at  common  law. 

Lynds  et  al.  v.  Hoar  el  a/.,  2  R.  &  G.,  237  ; 

IC.  L.  T.,710. 

68.    Surplus  proceeds— Claim  of  lien  Tor 

taxes — Defendants'  testator  mortgaged  certain 
property  to  plaintiff,  who  afterwards  foreclosed, 
and  the  property  was  oflFered  for  sale  April  lOth, 
1 876,  and  bid  in  by  John  McDonald,  who  paid  a 
deposit  of  $.300,  but  failed  to  complete  the  pur- 
chase. The  property  was  again  offered  for  sale 
November  19th,  1877,  and  realized  a  sum  which, 
with  the  deposit  paid  on  the  first  sale,  satisfied 
the  plaintiff's  mortgage,  and  left  a  surplus  of 
$322.29.  Upon  this  surplus  a  claim  was  made 
under  R.  S.,  cap.  21,  sec.  81,  for  taxes  due  by 
testator  for  1874-5-6-7. 

McDonald,  who  had  bid  in  the  property  at 
the  first  sale,  held  a  second  mortgage  upon  it 
to  more  than  the  amount  remaining  in  the 
Sherifif's  hands. 

Held,  that  the  Statute  was  not  applicable  to 
the  case,  as  the  sale  referred  to  in  the  first 
branch  of  the  section  was  a  sale  by  the  person 
owing  the  rates  at  the  time  of  the  sale,  whereas 
the  testator  had  conveyed  the  property  by  the 
mortgages  before  the  rates  had  become  due,  and 


the  property  had  not  been  taken  un<ler  luiy 
"process  of  law"  within  the  meaning  of  the 
words  in  the  latter  part  of  the  section. 

niack  v.  Murray  tt  al.,  R.  K.  D.,  311. 


69.    Surplus  proceeds -Contest  for-Rej;. 

istration  of  instrument  not  contemplated  by 
the  Registry  Act— No  notice— Mitchell,  wlio 
had  been  the  owner  of  three  lots  upon  wliicli  the 
plaintiff  held  the  mortgages  foreclosed  in  the 
present  suit,  conveyed  one  of  the  lots,  known  iia 
the  Chebucto  Foundry  lot,  to  Montgomery  iiml 
Budd,  by  deed  registered  in  1866.  lu  1 871, 
Budd  became  insf)lvent,  and  his  assignee  con- 
veyed his  interest  in  the  lot  to  Montgomery,  liy 
deed  registered  in  1871,  after  which,  in  Octoljur, 
1872,  a  mortgage  was  made  by  Montgonifiy  to 
Stairs,  which  was  recorded  in  November,  \S''2. 
Previous  to  Budd's  failure,  Montgomery  ami 
Budd  had  entered  into  an  agreement  witli 
Mitchell,  reciting  that  plaintiflf  held  mortgages 
on  certain  property  of  Mitchell,  on  which  tliere 
was  due  .?Ui,000,  that  Montgomery  and  Biiilci 
had  purchased  part  of  said  property,  and  as 
part  of  the  consideration  therefor  agree<i  to 
assume  the  said  mortgages  and  relieve  Mitchell 
therefrom,  and  the  instrument  contained  cove- 
nants to  indemnify  Mitchell,  his  heirs,  &c. ,  frcmi 
all  actions  which  might  arise  in  con8e(iuence  of 
the  said  mortgages  covering  more  laiul  than  that 
purchased  from  him,  or  in  consecjuence  of  the 
bonds  given  with  the  said  mortgages.  This 
agreement  was  registered,  previously  to  the 
mortgage  to  Stairs,  but  was  tmknown  to  him 
and  to  Wylde,  Hart  &  Co.,  who  were  interested 
with  him  in  the  mortgage,  until  after  the  iiiort- 
gage  was  recorded.  The  Master,  reporting  as 
to  the  disposal  of  the  surplus  proceeds,  treated 
Stairs  as  the  first  incumbrancer,  after  the  plain- 
tiff, on  the  property  over  which  his  mortgage 
extended,  and  exception  was  taken  to  the 
report  on  the  ground  that  effect  had  not  been 
given  to  the  agreement  registered  previously. 

Held,  that,  although  Montgomery,  if  lie  iiad 
not  given  the  mortgage,  and  those  claiming  luider 
him,  if  they  had  knowledge  of  the  existence  of 
the  agreement  when  they  took  conveyance  from 
him,  would  have  been  deprived  of  any  rigiit  to 
the  surplus  funds,  the  agreement  in  queatiou 
was  not  an  instrument,  the  registration  of  whicii 
was  contemplated  by  the  Registry  Act,  and 
therefore  the  registration  of  it  could  not  lie 
deemed  to  be  notice  of  its  existence  and  con- 
tents to  a  party  claiming  under  a  deed  or  mort- 
gage for  valuable  consideration,  and  that  Stairs 
and  those  claiming  with  him,  not  having 
received  actual  or  constructive  notice  of  its 
existence  when  the  mortgage  was  te.ken,  were 


913 


MORTGAGE. 


914 


to  be  consiilered  as  bona  Jide  mortgagees,  unaf- 
fected by  it. 

Cotjswdl  V.  Uraham,  R.  E.  D.,  30. 

70.    Surplus  proceeds -Right  of  assignee 

who  has  advanced  amounts  to  prevent  fore- 
closure—Contest  for — R.  M.  &  Co.  sought  to 
have  surplus  proceeds  arising  out  of  a  sale  under 
foreclosure  applied  to  a  recorded  judgment  held 
by  them  against  the  mortgagor.  The  judgment 
was  recorded  in  May,  1874.  Plaintiff's  mort- 
gage had  been  recorded  in  1809,  anil  a  prior 
mortgage  of  the  same  property  had  been  re- 
corded in  185").  Defendant  having  become 
insolvent,  his  assignee,  in  order  to  prevent  the 
sacrifice  of  liie  property,  paid  off  the  mortgage 
last  mentioned  and  the  interest  on  plaintiff's 
mortgage,  receiving  from  the  liolders  of  the 
mortgage  which  he  paid  an  instrument  in  which, 
after  reciting  payment  of  the  prineiptvl  and  in- 
terest, it  expressed  that  the  bond  was  delivered 
up  to  be  cancelled  (which,  however,  was  not 
cancclletl,  but  was  produced  witli  the  mortgage), 
and  that  they  remised,  released,  and  (juitted 
claim  to  him,  as  assignee,  x\vi  land  therein 
mentioned,  and  all  the  right  whiui  they  had  as 
executors,  and  all  sums  mentioned  therein,  to 
have  and  to  hold  to  the  said  K.,  as  assignee 
as  aforesaid,  his  successors  and  assigns. 

Hdd,  ^-hat  this  instrument,  though  inarti- 
ticially  drawn,  was  open  to  the  construction  that 
it  was  a  satisfaction  of  the  debt  as  between  the 
executors  and  tlie  assignee,  but  conveyed  to  the 
latter  all  their  interest  in  the  mortgage  as 
against  subsequent  incumbrancers ;  but  that, 
even  assumin-  'hat  it  was  a  release  of  the  mort- 
gage, and  not  an  assignment,  the  assignee  had  a 
prior  claim  to  the  surplus  proceeds  for  the 
amoiui'.s  lie  liad  advanced  on  the  mortgage  to 
pre  ent  foreclosure  ind  sale,  subject  to  a  credit 
for  any  amounts  received  by  him  for  rent  of  the 
mortgaged  premises. 

Bond  V.  Hiitchimon,  R.  E.  I).,  443. 


of  the  house  to  the  soil  was  conflicting,  but  it 
had  been  occupied  as  a  dwelling  Inmse,  had  n, 
cellar  under  it  in  which  vegetables  were  protected 
from  the  winter,  rested  partially  on  stone,  and 
had  a  drain  to  the  depth  of  five  feet  to  a  neigh- 
boring brook.  Plaintiff  brought  trover  for  the 
house,  and  the  jury  found  for  defendant. 

Htld,  that  the  house  was  part  of  the  realty, 
and  on  being  severed  iiecame  the  personal 
property  of  the  plaintiff;  that  the  phiintitf  was 
the  proper  party  to  bring  the  action,  as  the 
mortgagee  could  not  do  so  before  entry. 

Smith,  J.,  htnitante. 

McDonald,  J.,  diosentimj,  held  that  the  mort- 
gagee had  the  legal  title  to  and  constructive 
possession  of  the  property,  and  therefore  plain- 
tiff could  not  sustain  the  action. 

Reynoldx  v.  Dechman,  2  R.  &  (!.,  459  ; 
2C.  L.  T.,261. 

12.   Tessel,  mortgage  of— 

Ste  SniPPIXG. 

73.  Widow's  right  to  dower  In  equity  of 

redemption — A  widow  is  entitled  to  dower  in 
her  husband's  equity  of  redemption  in  a  case 
w!iere  she  was  a  party  to  a  mortgage  for  the 
purpose  of  releasing  her  dower,  under  the  Pro- 
vincial .Statute,  and  her  claim  will  be  protected 
by  the  Court  of  Chancery  in  distributing  the 
surplus  left  after  foreclosure  and  sale  of  the 
mortgaged  premises,  and  after  payment  of  the 
incumbrances  to  which  she  was  a  party. 

CoUint  V.  Story,  James,  141. 

74.  Writ  of  assistance -When  reftased— 

The  Court  of  Chancery  will  not  grant  to  the 
purchaser  uniler  a  foreclosure  a  writ  of  assistance 
to  turn  out  a  party  who  has  been  long  in  pos- 
session of  the  premises,  and  claims  title  by  pos- 
session and  who  has  not  been  made  defendant  in 
the  foreclosure  suit,  but  will  remit  the  purchaser 
to  his  action  of  ejectment  at  common  law. 

IVooden  v.  Rwihen,  James,  429. 


71.   Trover  for  bouse— Mortgagee  cannot 

bring,  before  entry— Plaintiff,  in  July,  1870, 
agreed  to  sell  certain  land  to  one  Reynolds,  who 
entered  into  possession  under  an  agreement  to 
pay  the  purchase  money  in  October,  1870. 
Reynolds  removed  a  house  to  the  land  and  con- 
tinued in  possession  for  a  period  of  about  eight 
years,  after  which  he  left  the  land  and  sold  the 
house  to  defendant,  who  assisted  in  removing  it 
from  the  land.  Plaintiff,  subsequently  to  the 
agreement  to  purchase,  executed  a  mortgage  of 
the  property,  the  date  of  which  does  not  appear, 
hut  the  mortgagee  never  entered  into  possession. 
The  evidence  as  to  the  nature  of  the  attachment 


75.  Writ  of  dower -When  A.  purchased 

lands  subject  to  a  claim  of  dower,  and  mortgaged 
in  fee  to  B. , 
Jleld,  that  writ  of  dower  would  not  lie  against 

A. 

Mc Arthur  v.  McOilcmy,  2  Thom.,  427. 

76.  Writ  of  possession  —Refused  against 

a  party  occupying  under  contract  to  purchase 
— On  appeal  from  the  refusal  of  a  Judge  of  the 
Supreme  Court  to  grant  a  writ  of  possession 
under  .'JthR.  S.,c.  124,8.  21,itappeared  thatthe 
plaintiff  held  a  mortgage  on  defendant's  prop* 
erty,   and  that  the  property  was  sohl  under 


916 


NAVIGATION. 


916 


foreclosure  proceedings,  and  l)ought  in  by  the 
plaintiff,  who  rcceivoil  a  deed  from  the  Sheriff, 
but  that  the  defendant  continued  in  possession 
subsequently  under  an  alleged  contract  to  pur- 
chase. 

Held,  that  the  writ  was  properly   refused, 
and  that  the  appeal  must  be  dismissed. 

KatUbach  v.  Sindk,  20  N.  S.  R., 

(8R.  &0.),  .S.'W; 

9  C.  L.  T.,56. 

See,  also.  Supra,  28  and  74. 


MORTIS  CAUSA- 
See  DONATIO  MORTIS  CAVSA. 

M0TI0X8- 
See  PRACTICE. 


MUNICIPAL  CORPORATION- 
See  CORPORATION-HALIFAI,  CITT  OF. 


MUROER- 
See  CRIMINAL  LAW. 


NAVIGATION. 

1.  Arm   of  the  ser.,  nsTlgable— Crown 

cannot  grant  tlie  waters  of  a  navigable  arm  of 
the  sea,  so  as  to  give  a  rignt  of  exclusive  fishing 
therein. 

Meisner  v.  Fannintj,  2  Thom.,  97. 

2.  Certificate  of  probable  cause  for  the 

prosecutors  seizing  a  ehi))  or  cargo  must  be 
granted  upon  the  facts  ap|)earing  upon  the  trial 
of  the  cause,  and  not  upon  subsequent  affidavits. 

It  is  not  necessary  to  prove  the  facts,  which 
created  a  probable  cause  to  have  been  known  at 
the  time  of  seizure. 

False  papers,  probable  cause. 

The  Fame,  Stewart,  112. 

3.  Change  of  master  not  indorsed  on  the 

register,  and  no  bond  given  by  new  master ; 
vessel  liable  to  forfeiture  under  26  Geo.  3,  c.  60, 
88.  15,  18  and  27,  and  27  Geo.  3,  c.  1,  s.  97. 

The  Friends  Adventure,  Stewart,  200. 


4.  Free  Port  Act  — 97  6eo.  8,  c.  27- 

None  but  the  enumerated  goods  can  be  ini- 
ported.  Not  suspended  by  war  with  Spain,  by 
the  order  in  Council,  23  Sept.,  1803.  Non- 
enumerated  articles  only  forfeited,  not  the  vessul 
and  the  enumerated  articles. 

Xuentra  Senora  Del  Carmen,  Siawart,  83. 

5.  Importation  —  Putting  Into  Philadel. 

phia  in  distress,  without  landing  or  entering  a 
cargo,  not  an  importation  from  thence. 

Touching  at  Cork  for  a  convoy,  and  at 
Madeira,  no  deviation  from  a  license  to  sail  from 
Bristol  to  St.  Domingo. 

The  Active,  Stewart,  169. 

6.  Importation— To  afotd  American  em. 

bargo,  no  excuse  for  importing  into  Nova  Scotia. 
The  Dart,  Stewart,  301. 

7.  Importation  under  33  Geo  3,  c.  jO. 

a.  14 — Spirits  of  turpentine  not  importable 
under  33  Geo.  3,  c.  30,  a.  14,  which  enacts 
"  that  it  shall  be  lawful  to  import  pitch,  tar  and 
turpentine,  being  the  growth  or  production  of 
the  United  States,  from  any  of  the  territories  of 
the  United  States  into  the  Province  of  Nova 
Scotia  and  New  Brunswick ;  provided  siicli 
pitch,  tar  and  turpentine  shall  not  l)e  imported, 
except  by  British  subjects  and  in  British  built 
ships,  owned  by  Her  Majesty's  subjects,  and 
navigated  according  to  law."  Owners  or  pro- 
prietors are  the  importers  meant  by  the  Statute. 
British  subjects  resident  abroad  cannot  import 

under  it. 

The  Nancy,  Stewart,  48. 

8.  Importation— What  constitutes —Clear- 
ing out  to  Boston,  entering,  trading  and  clearing 
out  from  thence  to  Halifax,  an  importation  from 

Boston. 

The  Union,  Stewart,  99. 

9.  Importation— What  constitutes  impor- 
tation under  the  Revenue  Laws— It  has  lieen 
decided  over  and  over  again,  that  in  order  to 
constitute  an  importation  it  is  not  necessary 
that  vessels  should  come  to  a  wharf. 

The  mere  fact  of  coming  into  port  with  goods 
on  board  is  prima  facie  evidence  of  an  importa- 
tion, and  is,  consequently,  clearly  a  violation  of 
sec.  9  of  31  Vic,  chap.  6,  where  the  port  is  not 
a  port  or  place  of  entry,  and  the  goods  are 
dutiable. 

A  vessel,  while  proceeding  from  the  island  of 
St.  Pierre,  which  is  a  colony  of  France,  to  New- 
foundland, put  in  at  Aspy  Bay,  in  the  island  of 
Cape  Breton,   the  said  Aapy  Bay  not  being  a 


917 


NEGLIGENCE. 


918 


port  of  entry,  without  neceflnity  from  atrosa  of 
wciither,  and  having  dutiable  gooda  on  Imard, 
somn  of  which  goods,  tiie  evidence  went  to 
show,  had  heen  there  landed,  and  no  duty  at 
any  time  paid  thereon, 

//(/(/,  that,  under  sec,  9  of  31  Vic,  civp.  6, 
the  captain  of  the  vessel  had  incurred  the  full 
penalty  of  ^8(X),  imposed  by  that  section. 

The.  Minnie,  Y.  A.  D.,  65. 


10.  Obstruction  in  naTlKable  water,  below 

low  water   mark  —  Nuisance  —  Treapaas— K. 

et  a/,  brought  an  action  of  tort  against  W.  for 
having  pullet'  up  piles  in  the  harbor  of  Halifax 
below  low  water  mark,  driven  in  by  them  as 
supports  to  an  extension  of  their  wharf,  built 
on  certain  land  covered  with  water  in  said  har- 
bor of  Halifax,  of  which  they  had  obtained  a 
grant  from  the  Provincial  (lOvernnient  of  Nova 
Scotia,  in  August,  1861.  \V.  pleaded  inter  alia, 
that  "  he  was  possessed  of  a  wharf  and  premises 
in  said  harljor,  in  virtue  of  which  he  and  his 
predecessors  in  title  had  enjoyed  for  twenty 
years  and  upwards  before  tiie  action,  and  had 
now  tlie  right  of  having  free  and  uninterrupted 
access  to  and  froni  Halifax  harl)or,  to  and  from 
the  south  side  of  said  wharf,  witli  steamers,  &c., 
anil  because  certain  piles  and  timbers,  placed 
by  the  plaintiffs  in  soid  waters,  interfered  witli 
his  rights,  he  (defendant)  removed  the  same." 
At  the  trial  there  was  evidence  that  the  erec- 
tions which  E.  tt  al,  were  making  for  the  exten- 
sion of  their  wharf  did  obstruct  access  by 
steamers  and  other  vessels  to  \V. 's  wharf.  A 
verdict  was  rendered  against  \V. ,  which  the  full 
Court  refused  to  set  aside. 

A^iott  et  at.  V.   Wood,  4  R.  &  G.,  276. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  reversing  the  judgment  of  the  .Supreme 
Court  of  Nova  .Scotia,  that,  as  the  Crown  could 
not,  witliout  legislative  sanction,  grant  to  E. 
e^  al.  the  right  to  place  in  said  harbor  below  low 
water  mark  any  obstruction  or  impediment  so 
as  to  prevent  the  free  and  full  enjoyment  of  the 
rigiit  (if  navigation,  and  as  W.  had  shown  special 
injury,  he  was  justified  in  removing  the  piles 
which  were  the  trespass  complained  of. 

Wood  V.  E»Hon  et  a/.,9  .S.  C.  R.,  239 ; 
4G.  L.  T.,  116. 

11>  Offences  against  law  relative  to  trade 

or  revenue  may  be  tried  in  any  Court  of  Record, 
or  Vice-Admiralty  Court,  49  Geo.  3,  c.  107. 

Aliens  forbidden  to  act  as  merchants  in  the 
colonies,  12  Car.  2,  c.  18,  sec.  2. 

The  Providence,  Stewart,  186. 


la.   System  of  navigation  laws  in  force  in 

1813— Utility  of  that  aystem,  particularly  to  the 
colonies  diacuaaed. 

The  Economy,  Stewart,  446. 

13.   To  avoid  the  embargo  of  the  Amerl* 

can  government,  no  excuse  for  entering  a  liritish 
port  with  non-importable  cargo.  H  it  could  be 
admitted  aa  a  juatitication,  the  embargo  lawa  of 
the  United  .States  would  in  fact  operate  as  a 
repeal  of  the  laws  of  Great  Britain. 

The  Patty,  .Stewart,  299. 

See,  alHO,  SHIPPING. 


NECESSARIES. 

1.  For  infiint— 

2.  For  vessel— 


See  INFANT. 
See  SHIPPING. 


NEGLIGENCE. 

1.    Action  against  civic  corporation  for— 

Service  of  notice  of  action  on  Mayor— Non- 
auit  refuaed— Judgment  in  accordance  with 
findings  of  jury  sustained — 

See  HALIFAX,  CITY  OF,  20. 
a.    Attorney  —  Liability  for  negllgence- 

The  Court  will  not,  on  a  summary  application, 

hold  an  attorney  liable  for  costs  for  negligence, 

unless  such  negligence  is  clearly  and  imequivo- 

cally  proved. 

Elliott  et  al.  v.  Laddii,  2  Old.,  170. 

3.    Carriers— Defect  that  could  not  be 

discovered— Finding  of  jury  on  disputed  fact — 
Plaintiff  was  a  passenger  on  defendants'  steamer 
to  Liverpool.  On  the  voyage  the  rudder  post 
was  carried  away,  disabling  the  steamer,  and 
plaintiff  returned  to  Halifax  and  was  carried  to 
England  by  another  of  defendants'  steamers. 
The  defect  in  the  rudder  post  was  incapable  of 
discovery  before  leaving  port. 

Held,  that  the  plaintiff  could  not  recover 
damages  for  delay  on  the  ground  of  negligence. 

Plaintiff  swore  that  he  was  ordered  out  of  the 
steamer  and  prevented  from  proceeding  in  her  to 
Liverpool,  as  other  passengers  did.  Defendants' 
captain  denied  this.  The  Judge  found  generally 
for  plaintiff,  and  there  was  no  contention  that 
the  finding  was  against  the  weight  of  evidence. 

Held,  that  as  this  was  a  pure  question  of  fact, 
the  verdict  should  not  be  disturbed,  and  that 


919 


NEGLIGENCE. 


020 


the  jilaintiff  hIumiM  ^le  allnwcd  to   anii'iiil   hin 
count,  iiiiirtiNticivlly  di'iiwii,  to  cover  his  cluiiii. 
iMc'l>(inal<l,  ('.  il.,  ilisst iitliiij, 

Xaif  V.  Allan  il  u/.,  «  R.  &  «i.,  449 ; 

(ic.  L.  T.,  rm. 


4.     Carriers  —  NoKllscnce  of—  Liability 


for- 


S,:  CARRIERS. 


5.  City  onialinix    Liability  ol,  for  ncgll. 

gence  of  party  leaving  earth  on  the  street— 

Sll  HALIFAX,  CITY  OF,  25. 

6.  Collision  -Caused  by  negligence - 

SV'  8HIPPIN0. 

7.  Contractor— Siilll  or  want  of  Nklll  or 

—Question  for  jury— Where  the  jury  found  a 
verdict  for  plaintiff  in  an  action  ex  contractu 
against  a  profcHHional  house  mover  for  damages 
sustained  in  conse(|uence  of  the  defendant's 
unskilful  conduct  in  I'emoving  a  house,  and  it 
had  been  left  to  the  jury  on  the  trial  to  discern 
whetlier  tjie  defendant  had  displayed  ordinary 
skill  and  was  or  was  not  chargeable  with  mis- 
management of  the  operation,  the  Court  dis- 
charged with  costs  a  ride  ntsi  to  set  the  verdict 
aside,  the  jury  being  the  proper  judges  of  the 
skill  or  want  of  skill  exercised  by  the  defendant. 
VicLi  V.  Chute,  1  R.  &  C,  1.59. 

8.  Contributory  negligence  -Use  ofwtaarr 

— Defenilant  iiired  to  plaintiff,  for  two  dollars, 
a  wharf  at  Whycocomagh,  for  the  purpose  of 
shipping  cattle.  The  wharf  was  in  bad  repair  ; 
two  fif  the  stringers  were  defective,  one  of 
them  being  rotten,  which,  however,  could  not 
be  seen  until  it  was  broken.  Plaintiff  drove  over 
the  wharf  eighteen  or  twenty  cattle,  a  much 
larger  number  than  had  usually  been  driven 
over  it,  and  defendant  said  he  would  not,  if 
present,  hive  allowed  such  a  number  to  go  over 
at  once.  The  cattle  becoming  frightened  on  the 
wharf  ran  back  to  the  shore,  and  in  doing  so 
broke  the  imperfect  span  of  the  wharf.  The 
ease  having  been  properly  left  to  the  jury,  they 
found  that  the  injury  was  not  occasioned  through 
any  insufficiency  in  the  whaif,  but  by  the  negli- 
gence of  the  plaintiff  in  using  the  wharf  as  he 
did,  and  they  found  for  defendant. 

Rule  refused,  Smith  and  .Tames,  J  J. ,  dissenliv;/. 
McDowjall  V.  McDonald,  3  R.  &  C,  219. 

9.  Contributory  negligence— 

*\€  Suiira  8,  and  Infra,  17,  18,  24, 

25,  27  &  28. 


10.  Damages-  Measure  of,  in  action  for- 

.V"  DAMAUE8,  10  .t  il. 

11.  Gas  Company  not  responsible  to  oc« 

cupiers  of  property  for  injuries  caused  by  dcfoc- 
five  fittings  not  the  property  of  the  ('oni|)any. 

.SVr  0A8,  \,'lkX 

12.  Gratuitous  bailee     MI.>re.tRan('o  or 

negligence—  I'lainlitf  and  defendant  held  notes 
of  1).  S.  &.Co.,  of  Philadelphia,  for  J««I,(MMI  iuid 
ij^.fKK)  respectively,  liefore  uuiturity  of  the  notcn, 
defendant  uutlertook,  with  consent  of  the  plain- 
till',  who  indorsed  the  note  helil  by  him  for  that 
pur|MiMe,  to  present  thu  notes  to  the  nmkers  in 
Piiiladelpliia  for  discount,  but  there  was  no 
agreement  exjjressed  or  implied  for  any  cdni- 
mission  or  reward  to  be  paid  to  defendant.  'I'lie 
makers  declining  to  discount  the  notes,  defendiuit 
left  tiieni  both  with  Van  H.,  to  be  retained  *\\\\- 
ject  to  order  of  the  owners.  Van  H.  deposited  tiie 
notes  in  a  sealed  envelojie  in  the  Corn  Kxchanye 
National  liank,  but  afterwards,  becoming  em- 
barrassed, fraudulently  took  the  plaintiff's  iKJtc 
from  the  envelope,  got  it  discounted  liy  tlie 
makers  and  appropriated  the  proceeds  to  iiis 
own  use,  and  afterwards  failed.  Defendant 
ascertaining  the  fact  of  tjie  failure,  or  fearing  it, 
went  on  to  Philadelphia  and  secured  his  own  note. 

Hthl,  that  defendant,  being  a  numtlatary,  or 
bailee  without  reward,  had  not  been  guilty  of 
such  negligence  or  misfeasance  in  dealing  with 
the  plaintifTs  note  as  to  render  him  liable  in  an 
action  for  the  loss  resulting  from  Van  H. 'a  bieach 
of  trust,  there  being  no  evidence  that  tiieailviui- 
tage  he  gained  in  saving  his  own  note  resulted 
from  collusion  with  Van  H.,  and  the  evidence 
showing,  although  tlie  fact  was  not  brought  out 
in  the  pleadings,  that  the  defendant  had  put  his 
own  note  in  the  same  hazard  with  that  of  tiie 
plaintiff. 

Wilkins,  ,h,<litf<tn/iii(j,  held  that  the  defen<lant, 
in  depositing  the  plaintifTs  note  with  Van  H. ,  was 
not  acting  within  the  scope  of  his  authority  as 
bailee,  and  was  liable  for  the  consequences  of  his 
act,  but  that,  as  the  verdict  was  in  U.  S.  cur- 
rency, it  should  be  set  aside. 

ffarru  v.  Sheffield,  1  R.  &  C,  1. 

13.  Halifax  City  Railroad  Company,  lis> 

bility  of  fo:f-  d  jctages  for  injuries  caused  by 
rail — 

See  HALIFAX,  CITY  OF,  -1 

14.  Haliflix  Street  Railroad  Companj, 

Limited  —  Liability  of  City  of  Halifax  for 
injuries  caused  by — 

^ee  HALIFAX,  CITY  OF,  22. 


921 


NEGLIGENCE. 


922 


15.   Hirer  of  property  -MlHUKer-When  a 

pcr'tciii  hiroM  ii  liorxi!  witli  u  waggon  Huutuil  foi' 
lwi>  pi'i'MoiiH  and  takuH  thruu,  liu  in  liablu  aH  for 
a  iniHiiMur  if  the  horsu  die. 

Caxfi/  V.  Ari'hilutlil,  'J  Tiioin.,  4. 

in.  Landlord  undertaking  repairs  with- 
out notice  to  tenant  -  Injury— Action— I'lain- 
titV  was  tenant  of  a  Hliop  owned  l>y  defendant, 
the  tipper  portion  of  wiiiuli  was  ocuupicd  by 
otluM'  tenants.  It  liaving  lieconie  neeenmiry  to 
make  certain  repairs  to  tiie  roof  of  tlie  Imilding, 
a  portion  of  tiie  roof  wiw  removed  at  defendant's 
iiiHtaiifc  witiiout  notice  to  tiie  plaintitl'.  Owing 
t(i  tile  negligent  inaniiur  in  wiiieii  tlic  work  was 
(lone,  rain  fell  into  tiie  building  and  ran  through 
ami  injured  the  jilaintilt  "s  goods. 

//'/(/,  that  the  work  was  done  by  the  tlefen- 
daiit  at  his  own  risk.aiul  that  he  M'as  responsible 
to  the  |)laintitl'  for  the  injuries  sustained  by  her 
ill  L'onse(|iience  of  tlie  damage  to  her  goods. 

Simlili,  there  being  a  count  in  wiiich  such 
a  claim  was  made,  that  it  might  jiroperly  have 
Iji'wi  left  to  the  jury  to  ascertain  the  damage 
Hustained  by  plaintitV  in  conse([uence  of  the 
liivakiiig  up  of  her  establishment  and  the  loss  of 
her  l)usiiiess. 

Kii<i/fy  V.  Mcl/rilth,  '.i  N.  .S.  D.,  511. 

n.   Master  and  servant— Fast  driving— 

Contributory  negligence— In  an  action  l)roughl 
ti)  recover  danuiges  for  an  injury  done  plaintifl's 
horse,  driven  by  his  servant,  tlirough  the  alleged 
unskilful  and  negligent  driving  of  a  horse  and 
sleigli  of  defendant  l)y  his  servant,  one  of  plain- 
tilfs  two  witnesses  testified  that  plaintiti''b 
servant  was  driving  fast  and  defendant's  servant 
slowly,  and  plaintitFs  servant,  his  other  witness 
admitted  that  he  was  driving  pretty  fast,  that 
he  saw  defendant  four  or  five  lengths  off,  the 
time  was  evening  and  neither  party  carried 
lamps,  on  the  wrong  side  of  the  road,  that  he 
cciiild  iiave  passed  cm  the  other  aide,  but  kept  on 
as  lie  was  going.  There  was  contradictory  evi- 
dence as  to  the  situation  of  the  parties  at  the 
time  (if  the  accident.  A  verdict  found  for  plain- 
titf  was  set  aside,  the  Court  holding  that  the 
evidence  of  negligence  on  the  part  of  defendant 
was  not  autiicient,  and  that  plaintiti''s  servant 
Was  guilty  of  contributory  negligence. 

Conlon  v.  Connolly,  1  R.  &  C,  95. 


IS.  Master  and  sen  ant- Fast  driving- 
Right  of  road  —  Contributory  negligence  — 
Defendant's  servant,  while  driving  at  a  rapid 
pace  on  the  wrong  side  of  the  road  came  into 
collision  with  plointiflf's  horse,  whereby  plain- 


tiff was  injured.    There   being  no  contributory 
negligence  on  the  part  of  plaintitf, 
Ildd,  that  defendant  was  liable. 
I  Martin  V.  Taylor,  'A  N.  S.  1),,  94. 

19.  Master  and  servant     Liability  of 

matiter  for  injury  to  servant  Where  plaintitf 
was  injured  by  an  exphision  of  gas  in  defendant 
company's  mine,  occasioned  by  an  erroneous 
plan  of  the  workings,  but  it  was  not  proved  that 
the  company  had  employed  incompetent  men  to 
'  ^superintend  the  mining,  and  plaintitf  was  not 
employed  under  any  H]iecial  agreement, 

lli'ld,  that  he  couhl  not  maintain  an   action 
against  the  company  for  the  injury. 
Sniitk  v.  Thi  Iiihrroloniul  Coal  Miiiiiiij  Co., 

20.  Master  and  servant  —  Liability  or 

mine  owners  for  injury  to  employees— Owners 
of  mines  are  not  liable  for  an  injury  to  a  work- 
man in  their  employ  caused  by  the  negligence  of 
their  foreman  or  superintendent,  if  they  have 
selected  proper  and  competent  persons  personally 
to  superintend  and  direct  the  work,  anil  have 
furnished  them  with  adec^uate  materials  and 
resources  for  the  work.  The  negligence  of  the 
jiersons  so  selected  is  not  the  negligence  of  the 
master.  ( Siu  judgment  Lord  Chancellor  Cairns, 
I  WilHOH  v.  Ihury  tt  nl.,  19  L.  T.,  N.  S.,  p.  33.) 
'  It  is  not  indispensable,  though  proper,  in  such 
case,  that  the  defendant  should  plead  that  the 
negligence  was  the  negligence  of  a  fellow  servant 
of  the  plaintitf. 

I      (Sk'  Stale  v.  IJndMy,  11  (\  K,  N.  S.>  429). 

The  party  asserting  the  negligence  must  prove 

it,  and  the  negligence  of  a  servant  in  such  a  cafe 

is  not  the  negligence  of  the  tnaster. 

I  Campbell  v.  General  Minimj  Annociation, 

\  i  N.  S.  1).,415. 

21.  Master  and  servant  —  Negligence  of 

servant  —  Defendant's  horses  and  carriages, 
driven  by  his  servant  westerly  along  Spring  har- 
den Road,  met  opposite  the  gate  of  defendant's 
stable  yard,  situate  on  the  northern  side  of  the 
road,  a  horse  and  truck  coming  in  the  opposite 
direction,  and  instead  of  passing  on  the  south 
side,  attempted  to  pass  on  the  side  nearest  the 
stable  yard  the  intention  of  the  driver  l>eing 
to  proceed  to  a  house  a  few  yards  west  of  the 
stables,  when  the  horses  suddenly  turned  in 
towards  the  yard,  knocking  down  and  injuring 
plaintiff,  who  was  coming  along  the  sidewalk 
near  the  gate.  A  rule  having  been  taken  to  set 
aside  the  verdict  found  in  favor  of  the  plaintiff 
for  S400, 
Held,  that  the  verdict  must  be  sustained. 

Lownda  v.  Robinson,  2  R.  &  C,  364. 


028 


NEGLIGENCE. 


924 


it.    Municipal  liability  for  nolianre  In 

the  highway-  Special  damages— City  of  Hali- 
fax liable  for  non-repair  of  Btreets  damaged 
by  Know  or  ice- -Notice  of  action— Lawful 
traffio- 

S\,  HALIFAX,  CITT  OF,  10. 

23.  Nexllgence  of  carriers— 

Ste  CARKIEKS. 

24.  Negllsent  drivlnK-ColllHlon-Contrl* 

butory  negligence  —  I'liiintitf  iiiul  ilefendant 
were  driving  in  opposite  directiona  ivlong  the 
publiu  iiighway  after  dark,  when  a  colliHion 
occurred  by  whicli  plaintiff 's  carr'ige  was  over- 
turned and  the  plaintiff  seriouHJy  injured.  At 
the  time  uf  the  collision  defendant's  team  was 
being  driven  slowly  along  the  middle  of  the  high- 
way, but  it  appenred  that  there  was  suftiuient 
room  at  either  side  for  plaintiflFto  pass  and  also 
that  plaintiff  saw  defendant's  team  approaching 
in  Buthcient  time  to  have  drawn  up  and  thus 
avoided  the  collision. 

Iltld,  that  in  an  action  brought  by  plaintiff  for 
negligence,  the  jury  were  justified  in  finding  a 
verdict  for  defendant.  Where  the  highway  is 
used  in  the  customary  way,  or  in  such  way  as 
circumstances  may  make  necessary,  evidence  of 
actual  negligence  must  be  given. 

Jiamk  V.  milker,  6  R.  &  (!.,  175; 

6  C.  L.  T.,  448. 

25.  Negligent  driving— Contrlbntorj  neg- 
ligence—Driver liable  notwithstanding  such 
negligence,  if  he  could  have  avoided  accident 
by  exercioing  ordinary  care — In  an  action  to 
recover  damages  sustained  by  plaintiff's  son,  in 
consequence  of  the  negligent  driving  of  defend- 
ant's servant,  the  learned  Judge  submitted  two 
questions  to  the  jury  : — 

1.  Was  the  injury  to  the  boy  the  result  of 
the  negligence  of  the  defendant  or  his  servant 
in  driving  the  horses  or  team,  and 

2.  Could  the  boy,  by  the  exercise  of  ordinary 
care,  have  avoided  the  injury. 

The  jury,  having  found  a  verdict  for  defend- 
ant, under  the  directions  of  the  learned  Judge, 
as  the  result  of  their  findings  on  the  questions 
put  to  them,  the  verdict  was  set  aside  and  a  new 
trial  ordered  on  the  ground  that  the  question 
should  have  been  put  to  the  jury,  whether 
assuming  negligence  on  the  part  of  the  boy, 
the  injury  could  not  have  been  avoided  by  the 
exercise  of  ordinary  care  on  the  part  of  the 
driver. 

West  V.  Boutilier,  6  R.  &  G.,  297 ; 
6  C.  L.  T.,  441. 


!    26.    Power  of  Court  to  review  evidence 

on  appeal  -Demand  and  ref>iHal  —  I'luintilT 
J  brought  action  of  trover  and  trespasH  for  lu'tt 
alleged  to  havolieen  run  over  by  the  M.  A.  Stiirr, 
of  which  defendant  was  niaHtcr,  and  judgiiu'iit 
was  given  in  the  County  Court  for  plaintiff. 

IJild,  that  the  presence  of  the  steamer  at  the 
place  where  the  nets  were  fouled  was  no  cviil- 
encc  of  negligence,  as  there  was  uncontradicted 
evidence  that  they  were  not  fouled  in  the  phwe 
where  they  were  set,  but  had  drifted. 

IIilil,  /urlhrr,  that  a  demand  of  satisfacti<in 
for  the  nets  destroyed  was  not  u  sutlicieiit  de- 
mand on  which  to  base  an  action  of  trover  for 
t)i(!  remnants  of  the  nets  taken  on  board  tlie 
steamer  and  saved. 

/'ir  Thompson,  J. — That  even  if  there  was 
evidence  from  which  the  County  Court  .Judge 
had  drawn  an  inference  of  ncglig'mce  from  the 
vessel  being  out  of  her  usual  course,  such  inftr- 
ence  was  open  to  review  on  appeal. 

Weatherbe,  J.,  dixntntimj,  found  that  tiicre 
was  evidence  enoi  gh  for  plaintiff  to  prevent  a 
non-suit,  and  the  Court  could  not  on  appcnl 
review  the  finding  of  the  Judge  on  the  facts 
where  the  only  ground  in  the  rule  for  appeal  was 
that  the  judgment  was  against  evidence. 

liarrttt  V.  SiUtix,  5  R.  &  0.,262. 

27.  Public  street  —  Liability  of  party 

excavating,   for  negligence  —  Obligations  to 

observe  conditions  of  permit  —  Contributory 

I  negligence  —  Plaintiff   need   not   disprove  — 

I  Questions  submitted  to  jury— Judge's  charge 

— Plaintiff  was  injured  by  falling  into  a  trench 

opened  by  defendant,  under  a  permit  from  tlie 

I  City,  across  the  sidewalk  of  a  public  street,  for 

the  purpose  of  connecting  his  premises  witli  the 

'  main  drain. 

I      Held,  that  there  was  no  onus  on  the  part  of 

I  the  plaintiff  to  disprove  contributory  negligence, 

I  but  that  the  defendant  must  maintain  his  ile- 

'  fence  independently  of  the  plaintiff's  case. 

I      Also,  that  defendant  having   been  guilty  of 

negligence  in  not  having  a  watchman  present, 

and  nut  having  observed  the  conditions  upon 

which  the  permit  was  granted  in  that  respect, 

the  verdict  for  plaintiff  must  be  sustauied. 

Also,  that  the  character  of  the  evidence  justi- 
fied the  Judge  in  submitting  the  questions  set 
out  in  the  case  to  the  jury,  and  that  the  charge 
was  a  proper  one. 

Shannahan  v.  Byan, 
20  N.  S.  R.,  (8  R.  &  G.),  142; 
8  C.  L.  T.,  379. 

28.  Railway  company  — Crossing  — Em- 
ployees—Injury  caused  by  a  locomotive- 
While  plaintiff  was  passing  over  the  track  of  the 


92:) 


NEGLIGENCE. 


920 


railway  np<Tatccl  in  cnnncction  with  <lefetulaiitH'  I     80.    B«llw«y  CrOMinx— Obligation  Of  COD* 

miiii'M  ho  wiiH  knocktid  down  l)y  a  lotonuitivo '  pany  running  train*-  IMiiintifT  won  leading  hi« 
iiiiil  crippled  for  lifu.  At  the  point  whuru  phiin-  !  hurtiu  along  a  puhliu  thoroughfaru  which  was 
riff  wan  injured  tht-re  were  four  traclcH,  inuluding  ,  crosHod  hy  the  track  of  defendant*'  railway,  ai  d 
Bidin^jM  Itetwecn  the  workmen'*  hou»e8  and  the  had  reached  a  jMiint  a  few  feet  distant  from  tho 
workH  widch  the  men  wore  ohliged  to  urotitf  j  croHHing  when  an  engine,  under  the  control  of 
twice  a  day,  and  over  which  children  fre(iucntly  '  defendantii'  servant,  approache<l  Buddonly  .xtul 
cnwNed  to  carry  food  to  men  working  in  the  pit.  |  frightened  the  liorHe,  which  Injlted,  and  threw 


The  croHHing  had  lieen  so  used  for  itixteen  years, 
anil  at  the  time  of  the  accident  was  used  as  a 
mad  for  horseB  and  carts.  The  common  practice 
M'liH  to  lilow  a  whistle  when  engines  were  moving 
abi>\it,  hut  on  this  occasion  no  whistle  was  hlown, 
and  the  view  of  the  track  was  obstructed  hy 
8(iiiie  hox  cars  which  had  l)een  left  standing  U|M)n 
a  stilling  close  to  it.  The  instant  phiintiir  passed 
the  hiix  cars  he  was  warned  of  his  danger,  but 
he  was  struck  by  the  engine  before  he  had  time 
t(i  escape. 

//(('(/,  that  the  damage  was  the  direct  result 
of  the  negligence  of  the  servants  of  defendant 
lonipany  for  which  the  company  was  liable, 
and  that  tliere  was  no  evidence  of  negligence  on 
the  jMirt  of  the  plaintiff. 

Daviy  v.  London  and  S,  H'.  Railway  Co.,  11 
Q.  li,  1>.,  '213  distinguished.  Verdict  for  plain- 
tiff sustained. 

Kiith  v.  The  Intercolonial  Coal  Minimj  Co., 
«  R.  &G.,226;  6  C.  L.  T.,  446. 

39.  Railway  Company   Liability  for  defec*  | 

tive  condition  of  cattle  guard  at  intersection  j 
of  railway  with  highway— Cattle  unlawfully 
on  highway  — Onus  of  showing  negligence  in 
such  case  on  owner  of  cattle — iiailway  Act  of 
1880— Plaintifl's  cattle  were  turned  out  upon  the 
public  highway  for  the  purpose  of  lieing  driven 
to  pasture,  and  while  there  unattended,  got  upon 
defendant  company's  line  of  railway  in  conse- 
quence of  the  defective  condition  of  the  cattle 
guard  at  the  intersection  of  the  railway  with  the 
highway  and  one  of  the  cattle  was  killed  by  a 
passing  train. 

fftld,  (1.)  That  the  clause  of  the  Act  (Rail- 
way Act,  1880)  requiring  guards  at  crossings 
could  not  be  construed  to  render  the  company 
liable  to  owners  of  cattle  unlawfully  on  the 
highway. 

(2.)  That  the  damage  not  having  been  done 
at  the  point  of  intersection,  plaintiff  was  not 
absolutely  precluded  from  recovering,  but  was 
subjected  to  the  onus  of  showing  that  defendant 
might,  with  the  exercise  of  ordinary  care  and 
diligence,  have  avoided  the  mischief,  and  having 
failed  to  do  so,  the  verdict  in  his  favor  could  not 
atanJ. 

Whitman  v.  W.  di  A.  Railway  Company, 
6  R.  &  G.,  271  ;  6  C.  L.  T.,  451. 


plainti£r  in  front  of  the  engine,  by  which  he  was 
run  over  and  sciously  injured.  I'laintitTdiil  not 
see  or  hear  the  train  until  it  was  close  beside  him, 
and  hoard  no  whistle  or  bell.  The  defendants 
did  not  plead  nor  attempt  to  prove  any  legislativo 
authority  to  cross  tho  thoroughfare  in  question 
with  their  railway  and  itsh)comotivesand  trains. 
Defendants  were  reipiircd  by  Statute  to  erect  a 
waridng  post  at  crossings,  and  to  cause  a  bell  to 
t>o  rung  or  whistle  to  be  sounded  continuously 
from  eighty  rods  beyond  the  crossing.  Neither 
re(|uirement  having  been  complied  with, 

Htld,  that  defendants  were  guilty  of  negli- 
gence. 

Ritchie,  J.,  dinnentimj  as  to  the  facts. 

HolHtUon  V.  The  Halifax  Coal  Go. , 

'20  N.  H.  R.,  (8R.  AG.),  517. 

31.  Sewer- NeBllsence  In  leaving  open- 
Liability  for  — 

Set  HALIFAX,  CITY  OF,  '23  &  24. 

32.  Sollcltor-Sklll  and  diligence  In  ln> 

vesting  money  —  Search  of  title  by  Registrar 
of  Deeds— Defendant,  a  solicitor,  practising  at 
Bridgetown,  invested  money  of  the  plaintiff  on 
a  property  which  was  afterwards  proved  to  have 
been  incumbered,  in  consequence  of  which  plain- 
tiff sustained  loss.  The  defendant  did  not  per- 
sonally search  the  title,  and  the  evidence  was 
conflicting  as  to  whether  he  had  requested  the 
Registrar  of  Deeds  at  Weymouth  to  search  it  or 
had  relied  on  a  certificate  of  the  Registrar, 
which  was  afterwards  found  to  be  a  forgery. 

The  Judge  who  tried  the  cause,  without  a  jury, 
found  that  defendant  was  not  guilty  of  negli- 
gence,  and  gave  judgment  for  defendant. 

On  appeal,  the  Court  in  banc  differing,  semble, 
in  their  view  of  the  evidence  from  the  Judge, 
found  that  defendant  had  been  guilty  of  negli< 
gence  in  relying  on  the  certificate,  instead  of 
having  the  title  searched  by  the  Registrar. 

Per  Ritchie,  J.— Even  if  the  defendant  had  in 
his  letter  requested  the  Registrar  to  search  the 
title,  be  was  to  blame,  as  the  reply  of  the  Regis- 
trar contained  no  reference  to  the  title,  and  did 
not  t  how  that  a  search  had  been  made. 

Semble,  defendant  would  have  acted  with 
reasonable  diligence  had  he  caused  a  search  to 


927 


NEW  TRIAL. 


928 


be  made    by   tlie    Registrar,    notwithstanding 
want  of  diligence  by  the  Registrar. 

Sancton  v.  Morne,  '20  N.  S.  R., 


Vessel,  negligence  on  part  of- 

See  SHIPPING. 


pretence  of  title  in  tlie  defendants  and  the  plain- 
tiffs would  have  been  entitled  to  judgment  if  a 
third  party's  name  had  been  on  the  record,  tlie 
(8  R,  &({.),  542.  record  might  now,  after  argument,  be  amended 
by  adding  such  third  party  as  a  plaintit)'. 

lioutilier  tt  at.  v.  Knock  ef  at.,  2  Old,,  77. 


NEW  GLASGOW - 
ASSESSMENT  UNDER  BT-LAW. 

See  ASSESSMENT,  IV. 


NEW  TRIAL. 

1.  Action  on  life  insurance  policy— Judg- 
ment in  favor  of  plaintiff— New  trial  with 
right  to  amend— A  new  trial  was  ordered  in  an 
action  on  a  policy  of  life  insurance,  in  whicli 
plaintiff  had  obtained  judginunt,  the  plaintiff  to 
have  the  right  to  add  parties  within  a  lime  fixed, 
witliout  payment  of  costs.  The  costs  of  the  ar- 
gument to  abide  the  final  result. 

See  INSURANCE,  LIFE,  3. 

Mts  V.  The  ^tna  Life  Im.  Co., 

7  R.  &  G.,  363 ; 
7C.  L.  T.,409. 

2.  Amendment— Adding  parties  —  Bouti- 

lier  V.  Knock,  2  Old.,  77,  distinguished  —  A 
special  verdict  in  ejectment  had  been  taken  for 
plaintiff  by  consent,  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, 
and  not  in  the  name  of  the  corporation  itself. 

Held,  Young,  C.  J.,  disnentmj,  that  the  ver- 
dict must  be  set  aside,  with  costs  of  trial  and 
argument,  and  that  an  amendment  without  a 
new  trial,  as  granted  in  Boutilier  v.  Knock,  2 
Old.,  77,  would  not  be  allowed,  the  amendment 
in  that  case  without  a  new  trial  being  granted 
solely  on  acuount  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  cd.  v.  McKenzie  et  al., 

2  Old.,  159. 

3.  Amendment— Adding  party  as  plaintiflT 

after  argument  of  rule  for  new  trial — Held,  in 
an  action  of  ejectment  that  as  there  was  no 


4.  Amendment  of  rule— On  tiie  reading 

of  the  minutes,  it  appeared  that  the  rule  nUi  for 
a  new  trial  had  been  made  returnable  in  tlie 
November  Term.  Objection  having  been  taken, 
tlie  Court  allowed  the  rule  to  be  amended  by 
substituting  "  December  "  for  "  November,"  and 
the  argument  proceeded. 

Lonijlf.y  et  al.  v.  Northern  Imuraucc  Co. , 

3  R.  &.  C,  .^)16. 

5.  Amendment  of  rule  nisi  for,— Rule 

nisi  for  new  trial  granted  by  Judge  on  circuit, 
allowed  to  be  amended  by   inserting  grounds 
brought  to  the  notice  of  the  Court  by  aflidavit 
on  the  first  day  of  term. 
j  McCully  V.  Dykeman,  3  R.  &  C,  482. 

6.  Amendment  —  Reftisal  of,  at  trial- 

What  necessary  in  order  to  make  refusal 
ground  for  new  trial — Defendant  was  sued  as 
maker  of  a  promissory  note  drawn  by  him  pay- 
able to  the  order  of  L.  J.  H. ,  and  indorsed  by 
the  payee  to  the  plaintiff.  At  the  trial  defendant 
moved  to  amend  by  adding  pleas  setting  out 
that  the  note  was  made  for  the  accommodation 
of  the  payee,  &c.  The  motion  was  refuse<l  and 
jiulgm.ent  given  for  the  plaintiff  on  evidence  of 
the  making  and  indorsement  of  the  note,  in  the 
absence  of  any  testimony  on  the  part  of  defend- 
ant in  support  of  his  pleas. 

Held,  on  appeal,  that  the  Judge  below  was 
right  in  refusing  the  amendment  moved  for,  in 
the  absence  of  any  evidence  to  show  that  the 
defendant  would  be  in  a  position  to  estalilish 
the  defence  he  sought  to  introduce. 

Also,  that  the  rejection  of  the  amendment 
might  have  been  good  ground  for  a  new  trial  if 
it  had  been  made  to  appear  from  affidavit,  or 
from  the  evidence  given  in  the  cause,  that  de- 
fendant would  probably  be  in  a  position  to  estab- 
lish the  defence  sought  to  lie  set  up. 

Halifax  Banking  Co.  v.  Gillis, 
20  N.  S.  R.,  (8R.  &G.),  406. 

7.  Amendment  of  rule  nisi  for,  allowed 

adding  new  ground  to  rule  —  The  Court  will 
allow  a  rule  nisi  for  a  new  trial  to  be  amended 
by  the  addition  of  a  new  ground, 

Elliott  V.  Smith,  2  Thorn.,  8, 

8.  Amendment— Unsatisfactory  verdict- 
Defendant  contracted  in  1853  to  purchase  sev- 


929 


NEW  TRIAL. 


930 


erftl  lots  of  l.vnd,  and,  as  being  part  of  one  of 
these  lots,  took  possession  of  the  land  in  dis- 
pute, erected  fences  on  it,  and  built  a  house  in 
wliich  he  reside<l  for  several  years. 

At  an  early  period  he  pointed  out  to  Forbes, 
tlif  adjoining  proprietor,  the  line  by  which  he 


Quaere,  whether  tiie  addition  of  a  deponent  ia 
indispen-sable  in  an  affidavit  of  justification. 
Acadia  Co-optraliou  Society  v.  Ft:i.ti;r, 
3  R.  &C.,  100. 

,      ,      .       ,,  **'*•    Ball  on  taking  out  rules  to  set  aside 

ohiiimd,  and  explained  the  reasons  and  evidence  '  verdicts— Practice-A  verdict  was  brougiit  in 
on  which  he  did  so.  After  defendant  had  con-  |  for  plaintitJ'  late  in  the  afternoon  of  the  la,st  day 
timied  in  undisturbed  possession  for  six  years,  |  of  the  Term.  Defendant  took  out  a  rule  under 
Foil)es  executed  a  deed  of  land,  embracing  that ,  tiie  St  .lute  to  set  it  aside,  putting  in  bail  to  the 
occupied  by  defendant,  to  plaintiff,  the  latter  |  anionut  fixed  by  the  Judge.  Plaintiff,  objecting 
beinj.  cognizant  of  all  the  facts.  Plaintiff  then  i  to  the  bail,  served  defendant  with'  a  noti.;e 
brought  ejectment.  On  the  trial  a  ([uestion  !  recjuiring  tiie  bail  to  justify  the  same  evening 
mm  whetlier  tiie  piece  of  land  of  whicli  Forl)es  ;  This  not  being  attende.l  to,  the  Judge,  on  the 
was  disseised  passed  under  tiie  deed  to  plaintiff,  ^  day  following,  allowed  the  plainti'^  enter  up 
und  the  presiding  Judge,  on  motion,  permitted  ;  judgment.       Under    tliesc    circumstances    tlie 


tliu  iiiiineof  Korlics  to  be  added  as  a  co-plaintiff". 
A  verdict  having  been  found  for  plaintiff,  a 
rule  was  taken  out  to  set  it  aside,  and  for  a  new 


t'ourt   granted   defendant   tlie  rule  for  setting 
the  verdict  aside. 
In  taking  out  rules  to  set  aside  verdicts,  the 


trial,  on  the  ground  that  tlie  land  of  which  ;  Ixiil  may  ho  filed  without  notice,  but  must 
I'orbes  was  disseised  could  not  pass  under  his  ;  justify  when  they  enter  into  the  recognizance. 
(Iced  ;  tliivt  the  amendment  at  the  trial,  by  add-  |  The  justification  may  he  oral  before  the  Judge 
iiig  the  name  of  Forbes  as  a  plaintiff,  was  made  (u-  Protlionotary,  and,  when  made,  should  lie 
iiiipioperly.  and  on  other  grounds.  j  noted   in   the   recognizance.      The  justification 

There  liaving  been  conflicting  evidence  as  to  ,  may  be  dispen.sed  witli  l>y  tlie  opposite  party, 
a.  conventional  line,  and  there  being  reason  to  '  and  the  substitution  of  one  bail  for  two  may  be 
believe  that  the  whole  case  niiglit  be  more  tho-  |  in  like  manner  assented  to,  and  no  notice  of 
rouglily  brought  out  on  a  second  trial,  for  this  ^  such  bail  having  been  given  shall  bo  required. 
cause,  as  well  as  the  other  principles  involved,  Itockii-ell  v.  lloxs,  1  N.  S.  1)    I83 

tile  rule  for  a  new  trial  was  made  absolute. 

Wheelocl-  v.  Morrison,  1  N.  S.  D.,  332, 


9.  Appeal  from  Justices— Amendment— 

Htid,  that  when  an  appeal  is  taken  and  jier- 
fected  from  a  decision  of  J  ustices  of  the  Peace  in 
a  suiuiiKiry  cause,  the  judgment  below  is  thereby 
ip^o  facto  vacated,  and  the  case  stands  for  a  new 
trial. 

On  a  second  trial,  no  amendment  adding  or 
substituting  a  new  cause  of  action  or  ground  of 
defence  will  be  allowed. 

Rand  v.  Rockwell,  2  N.  S.  D.,  199. 

10.  Appeal  ft'om  Justices  to  Supreme 

Court— No  new  evidence  can  be  taken  — 
Kven  in  a  regular  appeal  from  an  order  of  Jus- 
tices, new  evidence  cannot  be  taken  in  the 
Supreiiie  Court. 

Orer-ieers  of  Poor  for  Greenfield 

V.  Overseers  of  Poor  for  Oonken, 
1  Old.,  095. 

11.  Ball,  notice  of—  Rule  nisi  for  new 

trial  discharged,  no  notice  of  bail  having  been 
served  during  the  term  or  sittings,  as  required 
%  Rules  of  Court. 


13.  Bond  Instead  of  bail-piece  flIed-Rule 

nisi  under  the  .Statute  for  a  new  trial  discharged, 
on  the  ground  that  a  bond  was  filed  instead  of  a 
bail-piece. 

McKenna  v.  Tracy,  1  R.  &  (J.,  392. 

14.  Breach  of  promise  of  marriage  — 

Action  for— Evidence  of  seduction— Pleading 
—New  trial— In  an  action  for  breach  of  promise 
of  marriage,  evidence  of  seduction  before  the 
promise  was  received,  although  seduction  had 
not  been  alleged  in  the  statement  of  claim. 

The  evidence  was  objected  to  solely  on  the 
ground  that  it  was  not  alleged  in  the  jdeading. 

Scmble,  that  as  the  defendant  entered  into  the 
contract  in  consecjuence  of  the  condition  of  the 
plaintiff,  all  evidence  in  relation  thereto  would 
be  admissible. 

Held,  that  as  the  objection  that  the  seduction 
was  before  the  promise  was  not  taken  at  the 
trial,  and  no  reference  was  made  by  the  Judge 
in  charging  the  jury  to  the  seduction  as  an 
aggravation  of  damages,  the  admission  of  the 
evidence  was  not  ground  for  new  trial,  particu- 
larly as  the  damages  were  not  excessive. 

Held,  also,  that  evidence  of  improper  conduct 
on  the  part  of  the  plaintiff  before  the  contract 
had  been  entered  into,  and  of  general  reputa- 


931 


NEW  TRIAL. 


932 


tioii,  was  properly  excluded,  as  sucli  evidence  |  the  same  in  practical  operation  "  was  concerned, 
afforded  no  defence  to  the  action  ;  and  if  offered  but  that  the  shares  were  not  such  as  were  con- 
in  mitigation  of  damages,  should  have  been  so  templated  by  the  agreement.  New  trial  ordcrwl 
tendered,  and  the  attention  of  the  Judge  directed  unless  plaintiffs  consented  to  reduce  their  vcr- 
to  it.  diet  to  such  an  amount  as  the  Court  considtied 

shares  under  a  Provincial  Act,  with  the  uauiil 
statutory  provisions,  would  be  wortli. 
Durar  el  a/,  v.  Burkmr  el  a/.,  '2  N.  S.  U.,  460. 


Emhrecy.  Wootl,  20  N.  S.  R.,  (8  R.  &  G.),  40. 
16.   Conditions  imposed  In  granting  new 

tiiiil  as  to  costs  of  tlie  first  trial   and  of  the 
argument. 
■  Irvint  v.  The  Xora  Scotia  Marine  Inn.  Co., 

2N.  S.  D.,510. 

16.  Continuance-Dlscretlon-At  the  trial 

tlie  cause  was  continued  a  day  to  enable  plain- 
tiff to  get  a  deposition  which  could  not  be  found. 
//ttd,  that '  his  was  no  objection  to  the  verdict 
foi'  plaintiff,  as  the  Judge  had  discretion  under 
R.  S.,  c.  94,  sec.  210. 

Foster  et  al.  v.  Lamie,  3  R.  &  C,  269. 

17.  Criminal  case— Venire  de  novo— 

See  CBIMIXAL  LAW,  22. 

18.  Damages  excessive— \ew  trial  ordered 

unless  plaintiffs  consented  t"  reduce  their 
verdict— The  defendants  entered  into  the  follow- 
ing agreement  with  the  plaintiffs  :    "  And  the 

said  L.  Burkner  and  Francis  Ellershausen  do  ,  ^i^^g^^.j^g  ^^^^  jt  was  unnecessary  to  (kcLle 
hereby,  in  consideration  of  the  premises,  promise  ,  ^^^^jj^j.  ^^e  verdict  was  objectionable  on  oilier 
and  agree,  on  or  before  the  first  day  of  July, 
A.  O.,  1868,  to  form  a  company  to  work  a  coal 
mine  within  said  area  and  elsewhere,  and  for 
other  purposes,  and  to  deliver  to  said  I.  Hunter 
Duvar  and  Thomas  R.  Fraser,  at  that  date,  paid 
up  shares  in  such  company  to  the  amount  of 
S8,000 ;  and,  further,  that  in  the  event  of  said 
L.  Burkner  and  Francis  Ellershausen  not  form-  | 


19.   Damages  excessive— Discretion -Sec. 

22,  C.  S.  Act,  1875— Sec.  4,  Sup.  and  Ex.  C.  Am. 
Act,  1880— Costs— The  plaintiff  declared  on  a 
j  special  contract  for  the  sale  of  a  vessel '-y  the 
plaintiff  to  the  defendant,  averring  the  perform- 
ance by  the  appellant  of  all  conditions  precedent 
necessary  to  entitle  the  plaintiff  to  the  paynieni, 
by  the  respondent  of  the  agreed  price  of  the  said 
i  vessel,  and  assigning  as  a  breach  the  non-pfty- 
j  ment  of  the  said  price  by  defendant.  The 
plaintiff  further  declared  on  the  common  counts. 
The  defendant  pleaded  non-assumpsit,  non-de- 
livery of  the  vessel,  payment  and  set  off.  The 
cause  was  tried  before  the  Chief  Justice  of  Nova 
Scotia,  and  a  jury  at  Amherst,  in  June,  1.S78. 
The  jury  found  a  verdict  for  plaintiff  for  S.3,0()U. 
A  rule  nixi  was  thereupon  taken  out  to  set  aside 
this  verdict,  and  this  rule  was  made  absolute  hy 
the  Supreme  Court  of  Nova  Scotia  on  the  ground 
that  the  damages  were  excessive,   the   Court 


.  grounds. 

i      McGoivan  v.  Mockkr,  unreported  heloic. 

On  appeal  to  the  Supreme  Court  of  Canada, 

I      ffeld,  on  motion  to  quash,  Henry,  J.,  dttln- 

tante,  that  the  judgment  of  the  Court  ordering 

a  new  trial  on  the  ground  of  excessive  damages, 

_  _  _     _    _  _  proceeded  upon  matter  of  discretion  only,  and 

ing  such    company,  and   having  the   same   in  |  that  such  judgment  was  not  appealable, 
practical  operation  according  to  law,  and  deliver-  \      But  .see  Sup.  and  Ex.  C.  Am.  Act,  1880,  sec.  4. 
ing  such  paid  up  shares  as  aforesaid,  at  the  date  ;  Appeal  quashed  with  tlie  general  costs  of  appea 
aforesaid,  that  then  the  said  L.  Burkner  and  ;  to  hearing.     By  fiat  of  Toschereau,  J.,  a  counsel 
Francis  Ellershausen,  their  heirs  or  assigns,  shall  j  fee  of  §50  on  motion  was  taxed. 
at  that  day  pay  to  the  said  I.  Hunter  Duvar  and  j  Mcaowan  v.  Mockler,  13th  Ocloher,  1S7'J, 

Thomas  R.  Fraser  the  sum  of  §8,000  in  cash."      ;  ^'^-  ^^^*'^^'  -'^^' 

The  defendants  obtained  an  Act  of  incorpora- 
tion in  the  State  of  Maine,  and  also  anotlier  in 
the  Province  of  Nova  Scotia,  but  they  did  not 


20.    Damages  excessive— Excess  must  be 

outrageous  or  the  jury  must  have  acted  under 


comply  with  the  terms  of  the  latter  Act,  which  \  undue  motives,  gross  error  or  misconception, 
consequently  never  took  effect.  They  formed  before  Court  will  order  new  trial— 
a  company,  issued  stock,  and  went  into  opera-  |  Per  McDonald,  J.— This  was  an  action  for 
tion  under  the  Maine  Act.  Plaintiffs  declined  false  imprisonment,  and  the  defendant  allowed 
to  accept  the  stock  issued  under  the  Maine  Act,  '  judgment  to  go  by  default.  Damages  wcfe 
and  brought  this  action  for  the  purchase  money  assessed  before  a  Judge  of  the  Supreme  Court 
as  payable  in  cash.  Verdict  for  plaintiffs  for  by  a  jury  who  found  for  the  plaintiff  «370,  and 
full  amount.  '  a  rule  nisi  was  obtained  to  set  aside  their  finding 

ffeld,  that  defendants  had  fulfilled  the  agree-  ,  on  the  ground  of  excessive  damages,  and  on  the 
ment  as  far  as  "  forming  a  company  and  having  i  grounds  mentioned  in  an  affidavit. 


It  is  not 


933 


NEW  TRIAL. 


934 


necessary  to  refer  to  the  latter.  The  declara- 
tion does  not  contain  a  count  for  certain  special 
damages  of  S300,  which  were  proved  witiiout 
any  objection  at  the  trial,  although  the  defend- 
ant had  counsel  engaged.  What  is  more,  evi- 
dence of  the  amount  of  the  special  damages  wiia 
elicited  \\inni  the  cross-examination  of  the  plain- 
tiff liy  tilt  defendant's  counsel.  It  does  not 
aj)pear  that  the  learned  Judge  who  presided 
instructed  the  jury  as  to  their  duty  under  the 
pleadings  and  evidence.  IJy  the  evidence  itself, 
irrespective  of  the  pleadings,  it  is  (juite  clear 
that  tlie  damages  were  not  excessive,  but  if 
exception  had  been  taken  to  tiie  reception  of 
evideiiceof  special  damages  under  the  declaration, 
it  is  more  than  likely  that  such  exception  would 
have  prevailed,  and  in  case  it  had  not  prevailed, 
tlicn,  if  the  rule  nisi  to  set  aside  the  inquisition 
had  buen  taken  on  the  ground  of  the  reception 
of  improper  evidence,  and  also  on  the  ground 
that  the  learned  Judge  did  not  instruct  the  jury 
as  to  tiie  special  damages,  it  would  be  difficult 
to  iipliold  their  finding.  But  the  ground  of 
excessive  damages  is  negatived  by  the  evidence, 
and  I  cannot  look  beyond  the  rule  nisi  for  other 
grounds  than  those  chosen  by  the  counsel  who 
acted  for  the  defendant.  The  Courts  do  not 
favor  the  setting  aside  of  verdicts  in  cases  of 
torts  for  excessive  damages,  unless  such  excess, 
to  use  tlie  words  of  the  authorities,  be  out- 
rageous, or  unless  the  Court  be  satisfied  that 
the  jury  acted  under  the  influence  of  undue 
motives  or  gross  orror  or  misconception. 

The  case  of  Kniijhl  v.  Eijcrton,  7  Exch.,  407, 
was  brongiit  before  the  Court  in  an  entirely 
different  manner  from  this.  There  the  rule  nisi 
for  a  new  trial  was  taken  on  the  ground  of  mis- 
direction, here  it  is  not.  I  think  the  rule  nisi 
for  a  new  trial  ought  to  be  discharged. 
Foa-lc  V.  Smith,  uiireiwrfed,  delivered,  Dec.  1S73. 

'21.  Damages  excessive  -Xew  trial  ordered 

unless   consent  to  reduce  verdict  —  Plaintiff 
being  tlie  mortgagee  of  a  vessel  caused  insurance 
to  be  effected  to  the  sum  of  S5,000  in  defendants' 
office,  in  addition  to  §,5,000  insured  in  the  Anchor  i 
Marine  Insurance  Company.     The  amount  due  i 
to  the  mortgagee  was  $5,306  in  addition  to  which  I 
lie  had  advanced  for  payment  of  premiums  $5-2:2,  i 
making  in  all  §5,828.     Plaintiflf  had   received  I 
from  tlie  sale  of  the  vessel  $1,207,  and  from  the 
Anchor  Marine  Insurance  Company  §4,493,  in 
all  §5,700,  leaving  a  balance  of  §128.     The  ver- 
dict was  for  §1,325,   and  plaintiflf  claimed  to 
retain  it  as  trustee  for  the  owner.     The  policy 
was  expressed  to  be  for   "  E.  P.  Archbold  on 
account  of  himself."    The  only  interest  he  set 
up  in  his  aflSdavit  of  claim  was  as  mortgagee,  and 


the  only  authority  he  proved  was  that  claimed 
in  his  statement :  "  The  owner  authorized  mc  to 
insure  further  for  my  own  protection." 

Held,  that  there  must  be  a  new  trial,  unless 
the  iwrties  should  consent  to  reduce  the  verdict 
to  §128. 

Archbold  v.  The  Merchants'  Marine  Ins.  Co., 

4  R.  &fi.,  98. 

22.  Damages  excessive-Remedy— Discre- 
tion—Where the  damages  awarded  by  the  jury 
are  excessive,  but  the  plaintiff  is  entitled  to 
recover,  the  Court,  in  the  exercise  of  their 
control  over  the  verdict,  may  suggest  a  reduc- 
tion of  the  damages,  or  when  the  suggestion  is 

i  declined,  may  order  a  new  trial  on  the  ground 
'  of  excessive  damages  alone. 

Clarke  v.  Fullerton,  2  N.  S.  D.,  348. 

23.  Damages  excessive  —  Remittitur  or 

new  trial— Where  the  verdict  is  for  a  larger 
!  sum  than  that  claimed  in  the  writ,   the  Court 

may  allow  plaintiff  to  remit  the  excess  or  grant 

a  new  trial. 
I  Mulhall  et  al,  v.  Barss,  2  Thorn.,  46. 

I    24.    Damages  excessive  —  Remittitur  or 

new  trial  —  Discretion  of  Court  —  Costs— 
I  Where  a  verdict  is  found  against  the  charge  of 

the  Judge,  and  the  uncontradicted  evidence  of 

the  only  witness  examined  at  the  trial,  for  a 
I  larger  amount  than  the  evidence  warrants,  the 
j  Court  will  either  order  a  new  trial,  or,  if  the 

plaintiff  consent,  reduce  the  damages  to  the  sum 
i  warranted  by  the  evidence. 
I     The    Court    have    power    so    to  reduce    the 

damages,  with  the  consent  of  the  plaintiff  alone, 

and  against  the  will  of  the  defendant. 
The  (juestion  of  costs  in  such  cases  will  depend 

on  the  particular  circumstances. 

Jiisser  et  al.  v.  Hart  et  al.,  1  Old.,  727. 

25.    Damages— Trespass  to  land- Assess. 

ment  of  damages  —  Verdict  for  plaintiff  set 
aside  and  new  trial  granted  where  one  of  two 
grounds  of  claim  not  sufficiently  proved  and 
verdict  found  generally— Improper  rejection 
of  evidence  —  Expert  evidence  —  Plaintiff 
claimed  damr.ges  for  trespass  committed  by 
defendant's  cattle  on  his  lands,  and  damages 
sustained  by  reason  of  the  overflow  of  water 
on  plaintiff's  land  caused  by  a  dam  erected  by 
defendant. 

The  jury  found  for  plaintiff  on  both  grounds 
of  his  claim,  assessint;  the  damages  generally 

As  to  the  first  claim  the  Court  were  of  opinion 
that  the  evidence  sustained  the  plaintiff's  allega- 


93c 


NEW  TRIAL. 


93C 


tion,  but,  as  the  diuiiages  were  assessed  generally, 
ant)  there  was  sonie  doubt  whether  the  liability 
of  the  defendant  for  the  overflow  of  the  water 
was  established,  the  finding  of  the  jury  was  set 
aside  and  a  new  trial  granted  with  costs. 

At  the  trial  of  the  claini  for  trespass  by  the 
overflow  of  water  on  i)laintirt"8  land  caused  by  a 
dam  erected  by  defendant,  evidence  was  rejected 
whicli  had  been  offered  by  the  defen.lant  to 
prove  the  respective  levels  of  water  at  the 
point  where  the  dam  was  erected,  and  at  the 
meadow  alleged  to  have  been  overflowed  in 
conseiiuence  of  the  erection,  'i'he  witness  whose 
evidence  was  rejected  testilicd  that  he  was  a 
practical  mill  builder,  that  he  had  erected  water 
power  mills,  and  that  in  doing  such  work  he 
luid  to  take  levels  to  get  a  height,  but  that  he 
did  not  know  how  to  use  a  theodolite. 

Hi'ld,  that  the  evidence  should  have  been  le- 
ceived. 

Ptr  Ritchie,  J.— 'I"he  weight  to  he  given  to 
the  evidence  was  a  matter  for  tiie  jury  under 
the  direction  of  the  Court,  and  the  competency 
of  the  witness  to  take  levels  and  to  make  meas- 
urements should  have  been  a  subject  of  cross- 
examination. 

Expert  evidence  is  an  opinion  by  a  (lualitied 
person  on  facts  already  proved  involving  scien- 
tific or  technical  knowledge,  and  is  not  evi- 
dence of  things  done  or  meas-irements  taken 
which  any  one  is  competent  to  jn-ove,  theMciglil 
to  be  given  to  his  evidence  depending  upon  his 
ability. 

Cain  V.  Uhlman,  20  N-  vS.  K.,  (S  K.  &  (i.),  148  ; 

8C.  L.  T.,  373. 


26.    Damages-Verdict  set  aside  for  excess 

and  disregard  of  Judge's  instructions— Remit- 
titur only  eflectual  where  excess  is  the  result 
of  mistake— In  an  action  for  the  malicious  issiie 
of  a  writ  of  execution,  under  which  certdin  | 
cattle  of  the  plaintiff  were  taken  and  sold,  the  ' 
jury,  contrary  to  the  instructicms  of  the  Judge  j 
that  they  must  find  simply  for  damages,  returned  , 
as  their  verdict  a  paper  awarding  the  plaintiff 
the  full  value  of  the  cattle,  together  with  §100 
as  damages. 

I'he  verdict,  notwithstanding  the  entry  of 
remittitur,  was  set  aside  with  costs,  and  the 
cause  sent  for  a  new  trial.  Where  a  verdict  is 
excessive,  the  entry  of  a  remittitur  will  be  suffi- 
cient if  the  excess  is  the  result  of  mere  mistake 
and  not  of  an  intentional  disregard  of  the  in- 
structions of  the  Court. 

McKay  v.  Woodill,  6  R.  &  (}.,  88  ; 
6C.  L.  T.,  143. 

27.   Effect  of  reserrlng  a  case  for  the  ftiU 

Court— Plaintiff  recovered  a  verdict  for  §3,000 


against  the  defendants,  for  injuries  caused  by 
falling  over  an  unrailed  bridge,  under  a  charge 
l>y  which  the  jury  was  instructed  that  the  acci- 
dent resulted  from  the  umloubted  negligence  of 
'  those  on  whom   the   duty  lay  of   keeping   tlio 
bridge  in  a  safe  conilition,  anil  that  the  liability 
of  the  defendant  was  a  nmtter  of  law  which  he 
,  would  leave  to  the  full  Court. 
\      Held,  i>tr  Rigby,  J.,  that  the  only  (luestiou 
reserved  for  the  Court  was  whether,  as.sumiiig 
the  accident  to  have  resulted  from  negligeucu, 
as  put  to  the  jury,  the  defendants  were  liablf, 
'  ami  that  if  the  defemhvnts  were  dis.satiHtie(l  with 
!  the  charge  as  to  negligence,  they  should  have 
reiiuired  that  issue  to  be  put  to  the  jury,  and 
should  have  included  mis>lirection  in  the  ground 
for  setting  aside  the  verdict.     Weatherbe,  J., 
coiinirrinii. 

Tliompson,  J.,  dinsentinij,  hid,  that  thi.s  was 
a  reservation  of  a  mixed  (juestion  of  law  ami 
fact,  and  that  in  the  absence  of  evidence  lo 
satisfy  the  Court  as  to  the  negligence  of  the 
defendants,  the  veniict  could  not  be  upliuKl. 
McDonald,  C.  J.,  roiintrriiiii. 
j  Wattoii  v.  TliL  M iirii'-l/ali/i/  of  Colch(i.iler, 

]  ti  R.  &  C.,  549. 

i 

On  appeal  to  the  Siipreim  Court  of  Canada, 
III  Id,  that  the  i>laintiff  was  entitled  to  retiiiu 
his  verdict. 

/'(/•  strong,  J.,  (Z(W»'n/;/,  that  there  was  not 
sutiicienl  evidence  of  negligence  to  warrant  llif 
verdict,  and  the  case  reserved  for  the  Court 
being  on  (juestions  of  fact  as  well  as  law,  a  nuw 
trial  might  have  been  ordered,  notwithstaiuliiig 
the  objection  was  not  taken  either  at  the  triiil 
or  in  the  rule  7iixi. 

Cokhtsltr  V.  Watson,  IGlh  March,  ISS'j, 

Cas.  Digest,  98. 


28.  Equal  division  ofCourt  on  argument- 

On  an  eijual  division  of  the  Court,  the  moileiii 
practice  seems  to  be,  that  the  party  who  luus  oIj- 
tained  a  verdict,  as  a  general  rule,  retains  it ; 
that  the  Court  has  a  <liscretionary  power  to 
order  a  new  trial  or  re-argument ;  that  the  Cimit 
may  refuse  the  costs  of  argument  where  neither 
party  prevails,  and  that  on  appeal  from  inferior 
tribunals,  the  decision  below  is  affirmed. 

Oray  v.  Steel  Co.  of  Canada,  3  R.  &  ('■,  •'06' 

29.  Equltj-EJectment  by  order  of  t'lian. 

eery  to  obtain  evidence— Partial  findings  of 
jury —Practice— Ejectment  tried  by  order  oi 
Chancery,  in  order  to  obtain  evidence  to  k 
adjudicated  on  in  that  Court.  Verdict  taken  by 
consent,  subject  to  the  opinion  of  the  Supreme 
Court.      The  Court    declined   to  consider  tlie 


937 


NEW  TRIAL. 


938 


(|ue8tion  otherwise  than  in  accordance  with  the 
common  law  practice,  and  therefore  refused  to 
(k'cide  upon  matters  of  fact,  which  shouhl  liave 
lK.'en,  but  were  not  found  by  the  jury,  and  set 
iinide  the  verdict,  but  witliout  coats. 

Etter  V.  Co//p,  James,  344. 


30.  Equity— Suit  to  foreclOHe  mortgage- 
Defence  of  release  —  Burden  of  proof  —  New 
trial — F.  McDonald,  deceased,  made  a  mortgage 
t(i  plaintiff  which  plaintiff  brought  suit  to  fore- 
close. Defendants  set  out  an  agreement  by 
whicli  plaintiff  agreed  to  relsase  the  mortgage  on 
receiving  three  jiromissory  nfites  made  by  one 
McKinnon,  to  whom  part  of  the  land  had  been 
sold  by  the  mortgagor.  I'laintiff  replied  that 
the  notes  were  only  taken  as  collateral  security, 
to  lie  credited  to  tlie  mortgagor  when  paid,  and 
that  nothing  had  been  paid  on  account  of  them. 
On  the  trial  of  the  is.sue,  plaintiff  proved  the 
iviortgagc,  and  defendants  produced  no  evidence 
wliatcver.    The  jury  found  for  defendants. 

N<!il,  that  the  burden  of  proof  of  the  isstte 
niisi'd  was  on  tlie  defendants,  and  that  as  they 
hud  proved  nothing,  the  finding  must  be  set 
aside. 

.Uiirmy  v.  McDonald  et  id.,  R.  E.  D.,  142. 


31.   Equity— Taking  out  rule  under  Statute 

—Laches — Where  the  trial  took  place  in  Hali- 
fiix  Ipcfore  the  Judge  in  K<iuity,  and  the  verdict 
WHS  found  on  .September  'J")tli,  and  the  rule, 
having  been  refused  by  the  Judge,  was  not  taken 
out  until  October  .SOth, 

Hdil,  that,  assuming  the  plaintiff  to  have 
liiid  a  right  to  take  out  a  rule  under  tlie 
Stiittite,  he  liad  allowed  too  nuich  time  to  elapse, 
and  liad  by  the  delay  lost  his  right  to  do  so. 

Eaton  V.  mialhcrlK.,  R.  E.  1).,  48. 


32.   Equity -Trial  of  issues— Practice  on 

setting  aside  verdicts  and  obtaining  new  trials 
—The  practice  of  the  Supreme  Court  on  the 
common  law  side,  in  relation  to  setting  aside 
verdicts  and  granting  new  trials,  is  peculiarly 
applicable  to  the  trials  of  issues  in  Kijuity,  on  cir- 
cuit, ami  a  party  dissatisfied  with  a  verdict  in  an 
Kcpiity  suit,  tried  on  circuit,  should  apply  to  the 
Judge  before  whom  it  was  tried  for  a  rule  ?(;•<(, 
or,  in  the  event  of  his  refusing  a  rule,  should 
take  it  out  tinder  the  Statute,  and  cannot, 
having  ignored  that  practice,  move  tlie  E(]uity 
Court  at  Halifax  to  set  aside  the  verdict. 

Chipman,  Executor,  v.  Garazn  tf  «/., 
R.  E.  D.,26. 


33.  Evidence -Where  the  evidence  In  a 

case  is  conflicting  and  contradictory,  and  two 
verdicts  have  been  given  in  favor  of  the  same 
party,  the  Court  will  not  disturb  the  verdict. 

FoMcr  V.  Fowkr,  Cochran,  70. 

34.  Evidence  —  Action  against  SheriiT— 

\  Failure  to  give  material  evidence — Ni?w  trial 
on  terms — On  appeal  from  a  judgment  in  favor 
of  plaintiffs,  in  an  action  against  the  Sheriff  to 
recover  goods  taken  by  him  under  execution, 
it  appeared  that  the  defendant  at  the  trial  had 
\  omitted  to  prove  that  he  represented  execution 
,  creditors. 

Hdd,  that  he  could  not  succeed  in  his  appeal. 
.      A  new  trial  was  allowed  on  payment  of  the 
costs  of  the  argument  and  costs  of  the  day  at  the 
trial. 

Johnson  tt  at.  v.  Arrhiliald,  20  N.  S.  R., 

(8R.  ltd.),  321;  9C.  L.  T.,  56. 

3.).    Evidence— Deposition—Where  plain* 

tiff's  attorney  had  taken  from  the  tiles  of  the 
Court  a  deposition  taken  de  IjtHee.xtK  on  the  part 
of  the   defendant,    but  the  defendant  did  not 

'  succeed  at  the  trial  in  proving  the  illness  or 
absence  from  the  Province  of  the  witness  with 
sufHcient  clearness  to  entitle  him  to  have  the 

j  deposition  read,  if  procured, 

H<('d,  that  the  fact  of  the  deposition  having 
been  removed  from  the  files  of  the  Court  did  not 
constitute    sufficient  ground    for  disturbing  a 
verdict  in  favor  of  ])laintitf. 
MfDonald  f.t  al.  v.  Mtrch(tnt>i'  Marine  /«•-■.  Co., 

I  2  H.  &  c,  i;w. 

I 

36.  Evidence  -  Discovery  of  new  -New 

trial—  In  an  action  against  defendants  for  dam- 
ages, a  verdict  was  found  for  plaintiffs,  and 
subseriuently  defendants  applied  for  a  new  trial 
on  the  ground  of  new  and  important  evidence 
having  been  discovered,  which  was  unknown  to 
them  at  the  trial,  ami  which  their  agent  in  his 
attidavit  stated  was  such  as  he  believed  wouhl 
entitle  them  to  a  verdict. 

Hi/d,  that  a  new  trial  ought  to  be  granted  on 
the  ilefendants  pt-^ing  the  costs  of  the  first  trial. 
Renner  v.  Halifax  Steamboat  Co., 

3  N.  S.  D.,  .336. 

37.  Evidence— Discovery  of  new  evidence 

— Trespass — New  trial  ordered— A{)plication 
was  made  to  set  aside  a  ver<lict  for  defendant  in 
an  action  for  trespass  to  land,  and  for  a  new 
trial,  on  the  ground  of  newly  discovered  evidence 
favorable  to  the  plaintiff.  At  the  trial  the  point 
submitted  to  the  jury  was,  whether  the  defen- 
dant occupied  as  tenant  of  W.  or  in  assertion  of 


939 


NEW  TRIAL. 


940 


his  own  right.  The  isHucs  submitted  to  the 
jury  on  this  point  were  found  in  favor  of  defen- 
dant. The  newly  discovered  evidence  went  to 
show  that  defendant,  on  several  occasions,  had 
admitted  the  title  of  W,,  and,  if  believed  by 
the  jury,  wouhl  be  material,  if  not  conclusive, 
upon  the  point  upon  which  the  case  turned. 
A  new  trial  was  ordered. 

Garland  v.  Cun-y,  20  N.  S.  R., 
(8  R.  &().),  4. 

38.  Eridence  —  Improper  rejection  of- 

The  plaintiff  company,  in  order  to  prove  a  cer-  ] 
tain  notice,  called  their  secretary,  who  testified  ' 
to  the  loss  of  the  original  and   to  a  suliicient  i 
search  having  been  made  for  it.     On  cross-ex- 
amination, he  stated  that  he  did  not  know  from 
whom  he  had  received  the  original,  nor  in  whose 
handwriting  it  was.     The  paper  was  tendered,  ■ 
objected  to,  and  rejected,   and   the  Judge  also 
refused  to  permit  the  plaintiffs  then  to  introduce 
further  evidence  to  prove  it.    Tiie  plaintiffs  also  | 
offered  answers  to  interrogatories  by  one  of  the 
defendants,  whicli  were  on  tile,  and  the  answer 
of  another  of  the  defendants  which  had  not  been 
filed,  but  which  was  admitted.     These  were  re- 
jected.    The  plaintiffs,  thereupon,  became  non-  1 
suit. 

Helil,    Wilkins,  J.,  (lisieuliiifj,  that  the  dis-  '■ 
cretion  of  the  Judge  as  to  the  further  examination 
of  the  witness  had  not  been  properly  exercised ; 
that  the  answers  of  the  two  defendants  should 
have  been  received,  and  that  the  non-suit  should  ! 
be  set  aside.  1 

Windsor  Marine  Insurance  Co.  v.  Ladd,       ; 

2  N.  .S.  D.,  49.3. 

39.  Evidence— Improper  reception  of— 

Improper  reception  of  testimony  will  not  in- 
validate a  verdict  for  plaintiff,  when  there  is 
sufficient  additional  evidence  to  sustain  it. 

RiihM  v.  Mar'fha/l,  .James,  .3.S0. 

40.  Evidence— Improper  reception  of  evi- 
dence varying  note — Plaintiff  sold  a  mare  to 
defendant  for  the  sum  of  §140,  in  part  payment 
of  which  he  accepted  an  order,  drawn  by  defend- 
ant on  Albert  Graves,  for  $80. 

To  an  action  by  plaintiff  on  the  original  cause 
of  action,  defendant  pleaded,  among  other  pleas, 
•'non-presentment  for  payment,  no  notice  of 
dishonor,  and  effects  in  the  hands  of  Graves, 
to  the  amount  of  the  bill,  at  the  time  it  became 
due."  The  issues  thus  raised  were  not  put  to 
the  jury,  their  attention  being  directed  to  issues 
on  the  count  for  the  original  cause  of  action, 
and  to  conflicting  statements  of  the  parties  as  to 
the  terms  or  conditions  o.i  which  the  order  was 
received  by  plaintiff. 


The  evidence  of  plaintiff,  for  whom  the  jury 
found,  was  ;  "  The  order  was  not  taken  as  a  pay- 
ment. I  said  I'd  take  it,  and  try  and  get  it ;  if  so, 
well  and  good  ;  if  not,  I  must  have  my  money." 

Jlttil,  that  the  effect  of  this  evidence  being  to 
vary  the  note,  and  control  its  legal  operation,  it 
was  improperly  received,  and  that  the  rule  for  a 
new  trial,  shoulrl,  therefore,  be  made  absolute. 

Per  Wilkins  J.,  dinsenlinfi.— It  having  been 
found  by  the  jury  that  plaintiff  did  not  accept 
the  order  on  (Jraves  in  payment  of  his  demand, 
his  remedy  on  the  contract  was  not  suspended 
or  affected  by  his  taking  the  bill. 

Im/lU  v.  Allen,  1  N.  S.  D.,  101. 


41.  Evidence  Justifying  a  verdict  either 

way— Verdict  stands  —  Action  of  ejectment 
between  adjoining  proprietors,  the  (luestions 
being  entirely  matters  of  fact,  and  tlie  jury 
having  found  for  plaintiff,  although  there  was 
sutheient  evidence  to  justify  a  verdict  the  oilier 
way  if  they  thought  fit. 

//eld.  that  the  verdict  should  not  be  disturbeil. 
Walker  e'  at.  v.  «a.ve»-.<,  .3  N.  S.  I).,  270. 

42.  Evidence  not  taken  down  by  the 

Judsje— No  ground  for  new  trial — 

Per  McDonald,  C.  J.— I  regret  that  counsol 
state  that  there  was  evidence  on  a  crucial  point 
which  does  not  appear,  Itut  we  cannot  send  the 
cause  back  merely  because  evidence  was  put  in 
which  was  not  taken  down  by  the  Judge.  We 
can  only  look  at  the  evidence  as  it  comes  before 
us. 
Slocomb  v.  Morxe,  20  N.  S.  R.,  (8  R.  &  G.),  60. 

43.  Evidence  of  fraud,  but  no  plea  of- 

Wliere  a  verdict  was  found  on  the  ground  of 
fraud,  but  there  was  no  plea  of  fraud  on  the 
record,  the  Court  .set  the  verdict  aside. 

Hill  V.  Archbold,  1  Old.,  452. 


44.    Evidence  of  witnesses  on  previous 

trial — On  a  second  trial  an  objection  made  l)y 
defendant's  counsel  to  using  evidence  taken  oa 
a  former  trial  was  overruled,  and  plaintifTs 
counsel  thereupon  read  the  evidence  of  several 
witnesses  on  the  former  trial,  including  several 
witnesses  called  for  the  defence. 

The  presiding  Judge  ruled  that  plaintiff's 
counsel  made  the  evidence  of  defendant's  wit- 
nesses his  own  by  reading  it,  and  gave  judgment 
for  defendant. 

A  new  trial  was  ordered. 

Travers  v.  Mc Murray,  7  R.  &  G.,  509 ; 
8  C.  L.  T.,  63. 


941 


NEW  TRIAL. 


942 


43.   r  vidence— New  trial  refused,  where 

conflict  of  evidence  and  no  preponderance  in 
favor  of  unaucceasfUl  party— Rule  to  set  aside 
a  vcnliut  for  dofeiulants  in  an  action  tried  before 
a  iludge  without  a  jury  discharged  with  costs 
where  tliere  was  a  conflict  of  testimony  on  the 
iiiain  (|UCstion  on  which  phiintiff's  right  to  re- 
cover depended,  and  no  clear  preponderance  of 
evidence  for  the  plaintiff. 

lioiren  V.  Troop  et  al,,  1  R.  &  (J.,  1,37. 

40.   Evidence— New  trial  reftased  where 

evidence  to  sustain  findinga—In  an  acti'^n  of 
trover  for  a  pair  of  oxen  the  learned  Judge  of 
the  County  Court  found  the  following  fads  : 
r.  H.  I).,  the  owner  of  the  oxen  in  dispute,  de- 
livered them  to  H.  under  an  agreement  that  the 
latter  was  to  have  their  use  for  a  year  or  more 
for  tlieir  keep.  H.,  pretending  to  be  the  owner 
of  the  cattle,  executed  a  bill  of  sale  of  them  to 
the  defendant,  who  permitted  H.  to  remain  in 
possession.  H.  afterwards  returned  the  cattle 
to  (.'.  H.  1).,  the  owner,  'vho  then  sold  them  to 
phiiiitiff,  who  was  a  honajtde  purchaser  for  value 
without  notice. 

Ill  III,  /)(>•  McDonald,  C.  J.,  that  there  being 
evidence  to  sustain  the  findings  of  the  Judge 
l)el()W,  or  the  evidence  on  the  part  of  the  defen- 
dant not  Iming  of  a  character  to  induce  the 
Court  to  reverse  them,  the  arrangement  nuide 
by  C.  H.  1).  with  H.  was  not  a  hiring  lease  or 
agreement  for  sale  within  the  letter  or  the  spirit 
of  the  Hills  of  Sales  Act,  5th  R.  S.,  c.  92,  s.  .3. 

I'll-  Weatl.erbe,  .T.,  that  though  the  evidence 
for  the  defendant  as  to  the  terms  upon  which 
tiic  cattle  were  held  by  H.  was  of  a  suspicious 
character,  it  would  have  necessitated  the  grant- 
ini;  of  a  new  trial  had  not  the  defendant,  ))y 
permitting  the  cattle  to  remain  in  the  possession 
of  plaintiff  for  18  months  after  the  purchase, 
caused  the  latter  to  alter  his  |>osition  by  incur- 
ring expenditure  in  regard  to  them  and  by  l)eing 
prevented  from  taking  steps  to  secure  the  return  j 
of  iiis  money.  I 

Lewix  v.  Denton,  7  R.  &  <}.,  2.S5  ; 
7  C.  L.  T.,  ,323.  j 
I 

47.  Evidence-Practice  on  Hetting  aside  | 

verdict  as  against— Where  a  verdict  is  sought 
to  be  set  aside  solely  on  the  ground  of  its  being 
ftgaiiist  the  weight  of  evidence,  the  Court  will 
seldom  disturb  it,  unless  the  weight  of  evidence 
largely  prepon<lerate8  against  it. 

Dewar  V.  Peardon,  2  N.  S.  D.,  102. 

48.  Evidence— Rejection  of- Where  evld- 

ence  is  rejected  at  a  trial,  the  Court  will  not  set 
aside  a  verdict,  if,  had   the  rejected  evidence 


l»een  received  and  a  verdict  found  in  favor  of  liie 
party  offering  it,  that  verdict  would  have  been 
cleivrly  against  the  weight  of  evidence. 

Allan  V.  I'elern  e'  a/.,  1  R.  &  C,  .305. 


49.  Evidence  -  Specific  performance  - 

Conflicting  evidence  —  Verdict  auatained  — 
Amendment — Power  of  Court  to  interpose  to 
protect  intereata  of  third  partiea— In  an  action 
to  enforce  the  specific  performance  of  an  agree- 
ment alleged  to  have  been  entered  into  by  the 
defendants  in  relation  to  certain  property  as- 
signed to  them  by  one  of  the  plaintifl's,  the  jury 
found  in  plaintifl's'  favor. 

The  evidence  being  of  a  conflicting  character, 
and  the  case  having  been  fairly  submitted  to  the 
jury,  tho  Court  refused  to  disturb  their  findings. 

The  statement  of  claim  prayed  that  certain 
money  should  be  paid  to  the  Pictou  liunk,  but 
the  ju<lgmcnt  as  entered  authorized  the  plain- 
tiffs to  enforce  payment  to  themselves,  it  appear- 
ing that  an  amendment  to  that  effect  had  been 
permitted  by  the  learned  judge  before  whom  the 
case  was  tried, 

field,  that  the  amendment  so  allowed  cured 
the  objection,  but,  if  it  appeared  that  the  inter- 
est of  the  Bank,  or  of  other  parties  interested  in 
the  disposition  of  the  fund,  required  the  inter- 
position of  the  Court,  the  Court  had  the  power 
to  make  such  order  in  reference  thereto,  as  tiie 
rights  of  parties  or  the  justice  of  the  case  re- 
tjuired,  without  necessitatmg  a  new  trial,  if  not 
rcijuired  by  the  facts  of  the  case. 

Kitchin  f.l  n(.  v.  McDonald  et  al. , 
20N.  8.  R.,  (8  R.  &CJ.),  ISO; 
8C.L.T.,380. 

50.  Evidence  —  Telegram  —  New  trial 

ordered  where  secondary  evidence  was  refused 
—  Principle  upon  which  secondary  evidence 
admitted  —  In  an  action  claiming  danuigcs  for 
wrongfully  procuring  the  plaintiff's  son  to  leave 
his  service  and  refusing  to  allow  him  to  return, 
secondary  evidence  was  offered  and  rejecte<l  of  a 
telegram  sent  by  plaintiff  to  defendant  demand- 
ing the  son's  return. 

Held,  on  appeal,  that  the  evidence  should  have 
been  received. 

A  new  trial  was  ordered. 

The  same  principle  that  admits  proof  that 
letters  were  deposited  in  the  [wst  office  duly 
addressed,  as  tending  to  show  that  they  were 
received  by  the  persons  to  whom  they  are  ad- 
dressed, applies  to  telegrams. 

White  V.  Fleminiwj,  20  N.  S.  R., 
(8R.  &  (!.),  335. 

See,  also,  DEFAMATION,  12. 


943 


NEW  TRIAL. 


044 


51.  EvidenCO— Verdict  against  evidence—  i  thia  was  tlio  only  (lucstinn  for  tlie  jury,  l)Ut  tliiil 
III  an  iiction  for  (liiinagi's  to  iiLiiiitifT'it  mill  pro-  gtiuli  timling  whh  iigiiinHt  tiie  weight  of  uviiliMU'c, 
pcrty  iHul  privilege  liy  a  dam  erected  lower  as  therewaHiiotliiiig  toHhowtliat  the  net  procit'dfi 
down  the  strcani,  and  the  diversion  of  a  lirook  reivlized  were  not  clear  of  all  exjienses,  and  tliu 
in  such  a  manner  as  to  raise  t lie  surface  of  the  burden  waa  on  the  plaintiff  trt  ttliow  that  tiiero 
water  in  the  pool  below  plaintitr'a  mill  and  b(»  I  were  ex|)enses  that  exceeded  8aid  proceeds, 
interfere  with  the  working  of  his  mill  wheel,  the  j  Almon  v.  Iii'itinh  Amtricau  A>"i.  Co., 
jury  found  for  the  defendant.  The  Judge  who  I  4  H.  &  (1.,  4.'{. 
trie<l  the  cause  after  a  lengthy  analysis  of  the 

evidence  concluded  that  there  was  not  a  single  I  .M,  Evidence— Vcrdlct  against  Weight  Of- 
material  fact  in  the  case  in  favor  of  jilaintitf,  Where  there  is  no  objection  to  a  verdict  except 
which  was  not  conclusively  shown  by  tlie  wit-  that  it  is  found  in  the  opinion  of  (he  Court 
nesses  for  the  defence.  against  the  weight  of  evidence  the  Court  ought 

}[<:hl,  that  the  verdict  must  be  set  aside.  '  to  exercise  not  merely  a  cautious,  but  u   strict 

/'(r  Rigby,  J.,  that  the  conclusion  arrived  at  !  and  sure  judgment  before  they  send  the  cause  to 
by   the  jury   was    not  a   conclusion   at  which    a  second  jury. 

reasonable  men  ougjit  to  have  arrived  on  tlw  lianko/yoraScofiav.  Halihiirloii,  >hiii\oii, 'X>U, 
evidence  before  them,  and  they  hail  decided  the  I 

issues  submitted  to  them  without  giving  sulli-  [      53.     EvIdCnCC -VcrdlCt  SCt  aside  by  Court 

cicnl  weight  to  the  uncontradicted  testimony  in    on  review  of  the  evidence— Order  fornew  trial 

favor  of  plaintiff.  not  interfered    with    by   Supreme  Court  of 

Dinjir  V.  (r'lK/nr,  3  R.  i^  (!.,  344  ;,  Canada — Plaintiff  was  obliged   to  prove  titlf. 

•J  C.  L.  T. ,  605.    His   place  of    beginning    was    identitied,    imd 

his  description  in  tlie  grant  then  read:  "  run- 

52.  Evidence— Verdict  against  evidence  •'•"«  s"»t''  •"'-  ehains  to  a  large  pine  tree 
and  Judge's  charges— New  trial  ordered—  markcil  'J.  (J.,'  and  thence  west,  Ac,  "  To 
Plaintiff  brouglit  suit  for  use  and  occupation  of  a  reach  the  loms  the  line  should  be  extended  al)out 
wliaif.  Defendants  pleaded  never  indebted  and  -''O  chains  more.  To  tliat  increased  distiiiicc  x\w 
gave  evidence  that  part  of  the  wharf  was  built  surveyor's  line  on  the  ground  exten<lcd,  but  tlieie 
on  a  public  landing  over  which  the  public  had  ,  was  no  pine  tree  so  marked  either  at  tlie  distiiuce 
for  a  long  period  been  accustomed  to  pass  for  expressed  in  the  description  or  at  the  end  of  the 
the  purpose  of  landing  fish  from  their  boats,  surveyor's  line.  At  the  latter  point,  however,  ii 
Defendants  contended  also  that  plaintiff  couhl  /■/"•"(.•t  tree  was  marked  "  H.  (i."aud  ".I.  (1." 
not  build  a  public  wharf,  without  leave  from  the  i  'i'be  plan  attaclied  to  tiie  grant  represcntuil  the 
Crown.  The  Judge  charged  for  plaintiff  and  the  lot  as  a  different  shape  from  that  claimed,  iuul 
jury  found  for  defendant.  Verdict  set  aside  the  area  expressed  in  the  grant  was  inconsistcnl 
with  costs  and  new  trial  ordered.  !  with  jilaintiff's  contention. 

Linihay  v.  Cniijhtona  uL,  3  R.  &  (i.,  290.        HM,   /ter  McDonald,  C.  J.,  and  Weatlieibe 

and  Thompson,  JJ.,  that  the  plaintiff  had  given 
no  evidence  of  title  to  tiie  /ocni,  and  pir  Rig'iy, 
53.     Evidence- Verdict  against  weight  of  J.,    that   the   preponderance   of  evidence  waa 
evidence-New  trial   ordered  —  In  an  action  !  against  plaintiff's  contention, 
on  a  policy  of  insurance  on  potatoes  in  wiiich  it  j      Verdict  for  plaintiff  therefore  set  aside, 
was  stipulated  that  tiiey  sliould  lie  free  from  all  (,-„,,,.,  v.  narlilsoii  et  al.,  5  R.  &  ().,  431, 

average  unless  general,  the  plaintiff  obtained  a 

general  verdict  by  consent.  The  potatoes  arrived  On  appeal  to  the  Supreme  Court  of  Canada, 
at  the  jiort  of  destination  damaged  by  sea  water  ITfl<l,,  that  there  was  evidence  for  the  jury 
and  very  rotten,  and  evidence  was  received  that  that  the  line  claimed  by  the  plaintiff  was  tiie 
they  were  worthless  and  would  not  repay  the  !  western  line  of  his  grant.  The  case,  however, 
expenses  of  taking  them  out  of  the  vessel,  yet  was  not  so  clear  as  to  justify  the  Court  in  revcrs- 
()S4  bushels  were  taken  out,  and  deducting  ing  the  decision  of  the  Court  below,  come  to  oil 
charges  for  duties,  custom  house,  broker  and  |  a  review  of  the  evidence  ;  but  was  a  proper  case 
commission,  yielded  net  proceeds  amounting  to  for  further  consideration  on  a  new  trial,  Henry, 
$'220. SO.  It  was  not  shown  whether  the  cost  of  J.,  dixitntimj.  Appeal  dismissed  with  costs. 
picking  and  sorting,  &c.,  exceeded  this  sum  or  Oaten  v.  Davidson,  12th  May,  ISSo, 

not.  Cas.  Digest,  516. 

Held,  that  in  view  of  the  general  verdict  by 
consent,  the  Court  must  assume  that  the  jury       56.     EvIdCnCC  —  VcrdlCt    set    aside— Pre* 
had  found  that  the  potatoes  were  worthless,  as    ponderance   of  evidence — Plea  of  set  off— In 


945 


NEW  TRIAL. 


946 


iin  action  on  a  bill  of  rxchan^'c  drawn  hy  jjlnin- 
titfH  anil  arocy)tctl  liy  defcndaiitH  the  lattor  reliod 
upon  a  pli'a  of  Hot  off  for  j,'oods  Bold  and  deli  vered. 
The  pieponderaiico  of  evidence  showed  that  the 
goods  ill  (jucHtion  were  forwarded  to  i>laintiffn 
to  lie  Hold  liy  them  on  coininiMMion.  'I'he  jury 
ImvJMj,'  found  a  venlict  for  defendantn,  tiie 
verdict  wan  set  aaide. 

Mott  tt  (U.  V.  Eureka  U'oolien  Mill  Co., 

OR.  &(i.,'J74;  «C.  r..T.,  4.^.1. 
On  tii'iKdl  to  /he  Siijirdiic  Court  oj  Canadn, 

Ihlil,  that  where  the  Court  below  in  the 
oxcrciHe  of  it8  diHoretion  lian  ordered  a  new  trial 
<iii  the  ground  that  the  verdict  ia  against  the 
wciglit  of  evidence,  the  .Supreme  Court  of  Can- 
iiila  w  ill  not  hear  an  appeal  therefrom. 

r.iirvka  Woolhti  Afilln  Co.  v.  J/oiv, 

11  .S.  C.  R,,«J1;  6C.  L.  T.,L'«. 

Hut  where  new  trial  granted  on  (|uestioiia  of  ' 
liiw  ii»  well  as  of  fact,  the  appeal  will  be  heard. 

Kunka  IVoottui  Mills  Co.  v.  Moss,  11  .S.  C.  H.,  | 
fll,  approved  and  distinguished. 

Ifoimrd  V.  The  Lninnshirf:  Ins.  Co., 

11  S.  C.  H.,  92;  «C.  L.T.,  •->(!. 

b1.   Evidence -Verdict  against  -Verdict 

set  aside  as  being  against  the  weight  of  evidence 
and  the  .Judge's  charge. 

Voxitttr  V.  Horusliy  U  al.,  '^  N.  ,S.  D.,'J46.  , 

58.    Evidence  —  Verdict   against,    and 

against  charge  of  Judge— Where  a  verdict  is 

fduiid  against  uncontradicted  evidence  and  the 

tlidi'ge  of  the  Judge,  the  Court  will  set  it  aside. 

Thome  v.  Shan;  \  Old.,  542. 

59.  Evidence-Verdict  against  weight  of— 

riaimili" testified  that  defemlent  "entered"  his 
premises,  as  a   yearly  tenant,  at  t'90   a  year ;  , 
and  that  "tiiere  never  was  any  agreement  that 
lie  was  to  be  a  inontlily  tenant."      Defendant 
testiticd  that  "  the  premises  were  engaged  ver-  I 
lally  at  .'«30  a  month."     Defendant  also  jnit  in  | 
evidence  two  receipted  accounts  from  plaintitl', 
one  for  "one  month's  rent  of  office  from    1st 
Nov.  to  1st  Dec.,  1871,  8.30,"  and  another  for 
four  and  a  (juarter  months'  rent. 

Mil,  that  the  evidence  so  largely  prepondera- 
ted in  favor  of  defendant,  in  the  absence  of  ex- 
planations by  the  plaintiflF  of  these  accounts, 
that  the  verdict  in  favor  of  plaintiff  must  be  set 
aside. 

Ritchie,  E.  J.,  and  Wilkins,  J.,  disHentinij. 


O'Xeil  V.  nWs,  2  R.  &  C,  205. 

60.  Evidence  -  Verdict  against  weight  of— 

New  trial  ordered  where  the  testimony  of  the 


parties  was  contradictory  and  the  writingH  cor- 
ridiorated  plaintilf  against  whom  the  verdict  was 
found. 

FiUkrloH  v.  Chdiminii,  2  N.  S.  D.,  470. 

01.    Evidenco-Verdict  against  weight  of  ~ 

Practice— Misdirection— At  the  trial  the  evi- 
dence was  so  conHicting  as  to  have  justitied  a 
verdict  eitli'^r  way.  The  jury  having  found  for 
the  plaintilf,  defendants  moved  to  set  the  verdict 
aside,  as  against  the  weight  of  evidence,  and  for 
misdirection. 

Ihlil,  adopting  the  rule  in  Millin  v.  Taylor, 
.'{  IJing.  N.  C.,  lOft,  that  where  there  is  no 
objecticm  to  a  verdict,  except  that  it  is  found, 
in  the  opinion  of  the  Court,  against  the  weight, 
of  evidence,  the  Court  ought  to  exercise  not 
merely  a  cautious,  but  a  strict  and  sure  judg- 
ment, before  they  sentl  the  cause  to  a  second 

':  jury. 

A  .Judge  has  a  right  to  express  an  opinion  to 
a  jury  as  to  the  merits  of  a  case. 

,  A  misstatement  of  a  legal  jjroposition  is  not  a 
misdirection  unless  it  touches  the  very  point  of 
the  case,  going  directly  to  the  point  which  the 
jury  has  to  determine,  limiting  and  directing 
their  verdict. 

An  omission  or  misdirection  by  the  .Judge  is 
ground  for  a  new  trial  only  when  it  produces  a 
verdict  against  the  evidence. 

Pilirs  V.  Silrtr,  1  N.  .S.  1).,  7.5. 

62.  Evidence— Verdict,  setting  aside,  as 

against  —  The  Court  will  review  a  verdict 
negativing  fraud  in  an  assignment  of  personal 
property  and  set  it  aside  when  contrary  to  a, 
strong  preponderance  of  evidence. 

Falroiii  r  v.  Sairi/i  r  tt  al.,  James,  277. 

63.  Evidence— Verdict«  setting  aside,  as 

against — When— A  new  trial  will  seidom  be 
granted  upon  the  ground  of  the  verdict  being 
against  evidence,  when  tlie  verdict  has  any  evid- 
ence to  support  it,  although  the  evidence 
strongly  preponderates  against  it,  provided  the 
Judg.'  who  tries  the  cause  is  not  dissatisfied  with 
the  finding  of  the  jury. 

Fraser  v.  Camtron,  .James,  189. 

64.  Evidence)  weight  of-  Verdict  against 

— Althougli  it  ia  not  sutfiident  to  induce  the 
Court  to  set  .aside  a  verdict,  that  the  jury  have 
given  credit  to  a  single  witness  on  the  part  of 
the  plaintiff,  in  opposition  to  several  produced 
by  defendant,  yet  where  a  verdict  was  found 
for  plaintiff  on  the  evidence  of  one  of  plaintiffs 
witnesses,  against  the  evidence  of  all  the  defend- 
ant's witnesses,  and  against  the  evidence  of  one 
of  the  only  two  witnesses  produced  by  plaintiff 


•947 


NEW  TRIAL. 


048 


on  the  point  in  question,  the  oviilenee  o(  the  I 
latter  not  hii\  iiig  taken  plaintiff  by  miipriso,  an  , 
he  hail  previously  been  exaniinoil  ile  Une  ense  by 
defendant. 

//till,  that  the  verdict  must  \to  sot  aside. 

SiKHCe  V.  Wimlxor  d'  AnHai>ofii  li'y, 
1  R.  AC,  106. 

65.   Evidence,  wi^fht  of  -  Verdict  agalnHt 

—  Where  defendant  in  an  action  of  trover 
pleaded  accord  and  satisfaction,  and  produced 
in  evidence  a  written  receipt  in  full,  which  he 
testified  plaintiff  had  signed  on  receiving  certain 
goods  pursuant  to  agreement,  ami  plaintifT  testi- 
fied, "  I  never  signed  sucli  a  receipt  as  this.  It 
looks  like  my  signature  ;  I  don't  tiiink  it  is.  It 
is  very  like  it.  I'd  say  tiie  signature  was  mine 
if  I  didn't  see  the  writing  above  it,"  ami  again, 
after  hearing  defendant's  evidence,  "he  (defend- 
ant) produced  a  receipt  similar  to  tiie  one  pro- 
duced which  I  refused  to  sign.  I  read  the  one 
I  signed  before  doing  so,"  but  did  not  produce 
any  witness  to  e.\amine  the  signature  as  proved 
by  defentlant,  and  express,  if  he  could,  a  doubt 
as  to  its  genuineness. 

Held,  that  tiie  verdict  for  plaintiff  could  not 
be  sustained. 

Monliiomery  v.  Harl,  2  R.  &  C,  53.3. 

06.    Judge  giving  his  opinion  of  the  Diets 

to  the  jury — It  is  no  ground  for  setting  aside 

averdict  that  the  Judge  gave  Ins  opinion  on  tlie 

facts  to  the  jury,  and  recommended  them  to  give 

small  damages. 

French  v.   Wallace,  James,  3.37. 

67.  Judge  who  tried  cause  disapproving 

of  verdict— Rule  ni4  for  new  trial— Non-suit— 

In  case  of  a  verdict   for  plaintiff.    Court    wUl 

grant  rule  nUi  for  a  new  trial  if  the  Judge  who 

tried  the  cause  consiilers  that  a  rule  ought  to 

pass,  but  not  a  rule  nixi  for  a  non-suit,  except  t)y 

consent. 

Copi>  V.  Etler,  James,  304. 

68.  Judgment  for  want  of  prosecution 

where  both  parties  refuse  to  begin,  reversed 
on  appeal  —  In  an  action  by  plaintiffs  against 
defendant,  as  surviving  covenantor,  for  rent  due 
on  a  lease,  defendant  pleaded  a  plea  which  was  a 
substantial  admission  of  plaintiffs'  case.  At  the 
trial,  plaintiffs'  counsel  took  the  ground  that  on 
the  pleadings  defendant  should  begin,  and  rested. 
Defendant's  counsel  refused  to  go  on,  and  moved 
for  a  non-suit.  Plaintiffs'  counsel  having  refused 
to  become  non-suit,  the  learned  Judge  reserved 
judgment,  and  subsequently  gave  judgment  in 
favor  of  defendant,  for  want  of  prosecution. 
Held,   that  the  judgment  could  not  be  sus- 


tained. The  ])leadings  were  struck  out,  and  the 
cause  sent  back  for  a  new  trial ;  but,  inasnuu'li 
as  tlie  Court  were  of  opinion  that  plaintitfH' 
counsel  should  have  moved  to  amend  the  record, 
without  costs, 

Vkkery  el  al.  v.  Price,  7  R.  &  C,.,  51.3! 
8C.  L.  T.,61. 

60.   Juror  related  to  party -Where  a 

verdict  was  fouml  unanimously  in  favor  of  tii« 
defendant  in  an  action  brougiit  by  tiie  plaintiffs 
as  executors,  but  two  of  the  jurors  were  swoiii 
to  be  related  to  the  defendant  as  second  cousinn, 
u  fact  which  was,  unt'l  severvl  days  after  the 
trial,  unknown  to  the  plaintiff,  at  whose  iiistiiULe 
the  action  had  been  brought,  and  whoapijlicd  to 
have  it  set  aside,  the  Court  set  the  verdict  aside, 
althouj^h  the  jurors  in  question  were  sliown  to 
be  equally  relatetl  to  the  deceased  whoso  exeiMi- 
tors  liad  brought  tlie  action. 

Lyiult  et  al.  v.  Hoar,  1  R.  &  C,  .3'J:, 

70.  Jury-Case  wholly  for-PIalntlff,  a 

passenger  from  Halifax  to  Tortland  by  one  of 
defentlant  Co.'s  steamers,  sued  for  tlie  value  of 
her  trunk,  wliich  she  alleged  had  been  placed  in 
the  hands  of  the  Co.'s  servants  and  a  cliuck  given 
her  tiierefor.  Defendants  denied  receipt  of  tiie 
trunk,  and  gave  evidence  that  plaintitV  li:id 
received  the  clieck,  not  from  them,  but  from  tlie 
cabman  who  had  <lriven  her  to  the  wharf.  At  tlie 
trial  the  learneil  Judge  was  inclined  to  grant  a 
motion  for  a  non-suit,  but  consented  to  hear  de- 
fendants' evidence,  and  take  a  verdict  suliject  to 
the  opinion  of  tlie  Court,  whereupon  a  verdict 
was  rendered,  by  consent,  for  plaintiff  for  tlie 
full  amount  claimeil.  The  question  was  purely 
one  of  facts,  the  only  point  of  law  involved  be- 
ing as  to  whether  the  plaintiff  ought  not  to  have 
been  non-suited. 

Held,  that  there  should  be  a  new  trial,  as  tlie 
I  case  was  one  for  a  jury  only,  and  not  for  tiie 
Court  to  decide. 

Stimpson  v.  The  Xew  Emjland  d-  X.  S. 

Steatmhip  Co.,  3  N.  S.  1).,  184. 

71.  Jury -Case   withdrawn  from -New 

!  trial— On  the  trial  a  motion  was  made  for  non- 

i  suit.     The  Judge  inclined   to  the  opinion  tliat 

'  plaintiff  had  tailed  to  establish  his  case,  but  not 

j  so  decidedly  as  to  grant  the  motion,  and  it  was 

j  agreed  to  withdraw  the  cause  from  the  jury  and 

I  refer  it  to  the  Court.     The  evidence  was  very 

indistinct,  and  as  in  view  of  the  pleadings  and 

circumstances  a  judgment  could  not  be  given  for 

either  party. 

Held,  that  there  should  be  a  new  trial. 

Campbell  v.  Halliburton  et  al., 

2  N.  S.  D.,  111. 


949 


NEW  TRIAL. 


050 


Vi.  Jury -Chance  of  Judfce  to  Jury-New 

triiit  Kriinteil  without  CDHtn  wlioro  thu  iluilgu 
iiiKilo  no  fornml  ulinrgu  to  thu  jury  and  no  uhargu 
wi\*  rcportoil  on  hix  niinutoH.  j 

III  aim  V.  Caaaila  Fire  and  Marine.  Im.  Co. ,  , 

1  K.  k  a.,  4UI. 

M.  Jury- Conduct  or-Durlnfc  a  recemi 

whii'li  occurred  in  tliu  progrcnit  of  ii  trial,  after 
nil  tiic  evidence  had  l>cen  put  in,  hut  the  uhming 
uddrc.iHt's  of  the  CouuHel  not  yet  delivered,  one 
of  till'  jurors  wrtH  heard  to  miy  aloud:  "  The 
]iUiiitilT  liHH  got  to  get  his  {Niy  and  lie  will  got 
it."  The  verdict  heing  in  favor  of  plaintifT,  it 
wa.H  Hiinght  to  lio  Met  a.siile  for  misconduct  on  the  i 
purt  of  the  juror. 

///(/,  that  looking  'it  the  ciruunistancus  under 
which  the  remarks  were  made,  there  was  no 
gniuiid  for  diHturliing  the  vcrdic-t. 

'fhfdih^au  V.  Em-,-//,  3  N.  S.  1).,  31S. 

«t.  Jury— DIsoharsc  of  Jury  and  Judg- 
ment ordered  by  Judge  where  legal  queations 
only  are  to  be  decided— New  trial  refused  — 
I'kiiiliff  liecanie  owner  hy  purchase  of  all  the 
riglits  and  property  of  several  companies  incor- 
porated l)y  various  legislative  cnactnionts,  for 
the  purpose  of  constructing  or  completing  a  canal 
between  Halifax  HarlK)r  and  the  IJasin  of  Miiuts, 
and  as  such  owner,  brought  an  action  of  trespass 
Rgaiiist  defendant  for  cutting  and  carrying  away 
a  (|uiuitity  of  ice  from  the  surface  of  a  portion  of 
tlie  first  Dartmouth  Lake,  iKiing  a  portion  of  the 
ciuiiil  projjerty. 

The  learned  .Judge  before  whom  the  case  was  , 
tried,  after  hearing  the  evidence  for  the  plaintiff 
and  the  defendant,  discharged  the  jury,  and 
ordered  judgment  to  be  entered  for  dcfemlant, 
on  the  grounds  that  the  place  where  the  acts  of 
trespass  were  alleged  to  have  l)een  committed 
had  never  l)een  legally  expropriated,  that  the 
corporations  through  which  plaintiff  claimed 
had  no  riyht  to  the  ice  but  only  an  easement  in 
the  waters,  and  that  the  title  to  the  locus 
involved  legal  questions  only,  leaving  no  nnvtter 
of  fact  upon  which  it  was  necessary  to  take  the 
opinion  of  the  jury.  j 

fff-lil,  on  appeal,  that  the  action  of  the  learned  '■ 
Judge  in  discharging  the  ji>ry  was  not  groiuid 
for  a  new  trial,  especially  as  plaintiff's  counsel 
at  tiie  trial,  had  been  asked  if  he  could  sug- 
gest any  matter  of  fact  to  ))e  submitted  to  the 
jury  and  had  admitted  that  he  could  not. 

Per  .lames,  J.— That  the  Acts  of  incorporation 
conferred  upon  the  companies  under  which 
plaintiff  claimed  no  title  to  the  soil  or  bed  of  the 
lakes,  and  that,  even  if  defendant's  title  had 
been  expropriated,  it  would  have  been  only  to 


the  extent  nocosMary  for  the  purponon  of  the 
canal  and  would  not  have  interfered  witlutefen- 
dant's  title  to  the  l>ed  of  the  lake  nor  his  right 
to  use  the  waters  either  in  a  Huid  or  congealed 
condition. 

/Vr  McDonald,  .1.— That  the  ease  was  one  in 
whiuli,  under  the  old  practice,  the  .Judge  woulil 
have  been  justitied  in  leaving  nothing  to  the 
jury,  liut,  on  the  contrary,  non-suiting  the 
plaintiff,  and  that,  under  the  present  rules,  a 
venlict  and  judgment  could  be  entered  instead 
of  a  non-suit  as  formerly. 

Fairliniil:'*  v.  Cre'ujhton,  U<)  N.  S,  R., 

(8K.  &(J.),  83. 

7ft.    Jury  dlnresardlns   Instruction   of 

Judge— The  legal  riglits  of  the  i)artie8  were 
entirely  dependent  upon  an  agreement  under 
seal,  and  the  Judge  presiding  at  the  trial  in- 
structed the  jury  that  under  the  terms  of  that 
agreement,  anil  the  facts  in  proof,  there  should 
be  a  verdict  for  defendant,  nevertheless  the  jury 
found  for  the  plaintiff.  On  a  motion  tor  a  new 
trial, 

Ilild,  that  as  the  construction  of  the  agree- 
ment was  a  matter  for  the  Court,  the  verdict 
.should  be  set  aside,  and  the  rule  for  a  new  trial 
made  absolute. 

Whitehead  v.  Howard,  3  N.  S.  D.,  4.')8. 

76.  Jury  —  General  verdict  Inconsistent 

with  answer  to  question  —  The  jury  found  a 
general  verdict  for  plaintiff ;  but  in  answer  to  a 
ijuestion  put  to  them  by  the  Judge,  found  one 
of  tlie  issues  raised  by  the  pleadings  for  the 
defendant. 

Ili/d,  that  the  general  verdict  for  plaintiff 
must  be  set  aside  and  a  new  trial  had, 

J'er  James,  J.,  that  it  could  be  amended. 
McKinnou  v.  McXeill  elal.,4R.&  (i.,  25. 

77.  Jury  having  found  on  all  the  fiict, 

Court  refused  to  disturb  verdict  —  Defendant 
took  out  a  rule  under  the  .Statute  to  set  asi.le  the 
verdict,  and  for  a  new  trial,  upon  the  ordinary 
grounds,  but  the  jury  having  found  for  the 
plaintiff  ui)on  all  the  issues  of  fact,  the  Court 
refused  to  disturb  the  verdict. 

Leonard  v.  Coijuwell,  1  N.  S.  D.,  121. 

78.  Jury— Irregularities  In  drawing— 

Discretion  of  Court — A  verdict  will  not  be  set 
aside  on  the  ground  of  an  irregularity  in  the 
drawing  of  the  jury,  where  the  attorney  of  the 
complaining  party  had  the  means  of  knowing  of 
the  irregularity  at  the  trial, andmadenoobjection 
then ;  and  it  ^vas  not  shown  that  the  verdict 
was  otherwise  improper,  or  that  any  injustice 


051 


NEW  TRIAL, 


0.^2 


wftii  (lone  then  liy,  <ir  that  the  ofHcor  who  tlrew    <|ucitinna  of  fact  which  hn  wim  r«'i|Uo«tcil  hy  tliu 
the  jury  wuh  iiiflucru'ud  )iy  cornipl  or  iniiirojK-r   fniinwl  for  thu  ilefomlniit  to  mihiiiit. 
inotivc'M.  I      //(/</,  thwro  U'iiig  uiicmitriuliutuil  uviiluiuii  of 

The  griiiitin«  of  new  triuln  on  account  of  iiuo}i  jKiKneHHion  in  »liu  iihiiiitiflTH  favor,  tlial  tlin  loiimu 
irreguhirities  iH  entirely  in  thu  diacretion  of  the  |iurHiie<l  l>y  the  Jiidm)  wum  jimtilieil  \mi\vv  thu 
Court. 


CoH'liiKj  V.  LiCaiii,  I01il.,7l7. 


teriMH  of  M\  K.  S.,  c.  104,  S.  '.'(».  ■-•.  7. 

Where  (|ueMtionH  of  fact  are  Muhinitteil  U>  tliu 

jury  liy  the  preHidinnJuil^e  wliicii  aiiiply  covnr 

19.     Jury  IIMS-DefPt't*  In-Not  ObJCrted    all  the  Imhiux  raine-l  liy  the  |ilea.lin«H,  aii<l  l.avu 

to  at  trial— DiHcretion     It   Im  a  matter  for  the    nothiiiK  lieieMHary  to  he  determined  afterwanls 

disi'ietion  of  tliu  Oiurt  whether  a  defeet  in  the    to  nettle  the  inMue»  of  fact  involved  in  thepkml- 

jury  li8t,  or  in  the  panel,  which  Iuvh  not  lietn    ingti,  he  nmy  decline  to  put  any  furlheniii.»tjipii<. 

IkHliarn^  it  a/,  v.  lUlliI  nl.,  '.1»  N.  M.  |!., 

(s  U.  ltd.),  IS'.'. 


made  a  ground  of  ohjcction  at  thu  trial,  i!<  a 
sutticicnt  lauHc  for  nutting  anide  a  verdict, 

The  omiHHion  of  thu  rcHidenceH  ami  jiccujmv- 
tions  of  thu  jurors  in  thu  lintn  retiwned  by  the 
.Iu»ticen, 

//(/(/,  Mutlicient  grounil  for  <|uaMhing  indict- 
mentB  found  l>y  thu  (irand  .Jury,  and  for  Netting 


§'2.   Jury  -  Verdict   of  Jury  suHtnlned, 

although  againat  Judge'H  charge,  wheru  two 
previous  verdictn  same  way  -  Contradictory 
evidence— Receipt  for  money— On  a  H\iit  to 


anide  !.|H;cial  jury  paneU  in  cauHes  not  tried,  hut  recover  a  HUin  of  money  claimed  l.y  plaintitlH  to 
iK.tmitlieicul  to  dintuil.  verdicts  in  caUHCs  where  he  due  from  defendantH,  the  latter  jnnduc.Ml  a 
the  objection  was  not  made  at  thu  trial,  uidess  receipt  for  thu  amount  which  phiintiirs  swore 
it  lie  shown  that  injuatiijo  haa  been  done, 

A(ii(e  ofSiamaii  v.  Cniniiliill,  .lainus,  94, 


was  given  under  the  impression  that  a  bill  piiiil 

with  others  by  one  of  thu  ilefendants  was  a  tlo 

bill,  whereas  it  proved  to  have  been  a  bill  for 

oidy  ,*,').(!<».     The  learned  .Judge  charged  the  jury 

80.     Jury  -(lUCStlon  for  Jury-Wlthdrnwal    ^,„^t  ^|„,  ,„.,.iK.nderan.;u  of  evidence  was  with  the 

of,  by  Judge     I'laintitr,  as  assigueu  under  the    p,,^i,„jff,^  ,,„,  the  jury  having  f.iund  for  the  de- 

Insolvent   Act  (.f    iStiO,    brought   an   action  of    f,,,,,,,,,,^^,^  ,i,„i  t.^-o  previous  trials  having  resultc.l 

in  thu  same  way  the  Court  refused  to  set  tlie 
verdict  aside. 

Lyiuhit  Hi.  V,  Jlonrif  nl.,  .">  H.  it  (!.,  I4!<. 


trover  against  defendant  for  certain  goods  trans 
ferreil  by  the  insolvent  thirty  nine  days  bu.'ore  thu 
assiginnent,  the  transfur  buing  attacked  in  this 
suit  as  void  under  section  SO  of  the  Act.     I'lain- 
tifT,  on  the  trial,  put  in  evidence  a  bill  of  sale 


83.   Misdirection    A  rule  for  new  trial 


made  by  the  insolvent  about  two  mouths  pi'c-  will  be  refused  where  the  Court  can  sec  cleiiiiy 
viotisly  to  thu  assignment,  for  thu  jiurposu  of  ^\^^^^^  ,.^,1!  aiul  substantial  justicu  has  been  chme, 
proving  contemplation  of  insolvency  on  the  part  \  wrong  observation  by  a  .Jutlge  on  a  matter 
of   thu    insolvent  at   thu   time  of  making    thu  1  of  fm.t,  which  is  left  as  a  matter  of  fad  for  llie 


jury,  is  no  ground  for  a  new  trial. 


transfer   in  i|Ucstion.     The  circumstances  con 

nected  with  the  said  bill  of  sale  were  explained        Lordly  if  al.  v.  McRw.  i-t  ft/.,  .S  N.  i'^.  D.,  ''- 

ao  satisfactorily  to  the  miml  of  the  .Judge,  that 

he  withdrew  thu  consideration   of   it  from  the 

jury. 


84.     Misdirection  —  Conflicting  evidence 

left  to  jury  as  matter  of  law  —  An  actio.,  of 
Hi  III,  on  A  rule  nin  for  a  new  trial,  that  it    trover  was  brought  for  three  .sheep,  two  of  wliii.li 
should  have  been  left  to  the  jury  tfi  say  what    plaintiff  alleged  that  she  had  brought  with  hiM- 


effect  should  be  given  to  it 

Forrtnl,  Atiiijnte.,  v.  Almoii  il  al., 

3R.  &C.,  110, 


to  the  residence  of  (me  McKay,  with  whom  she 
was  living  when  they  were  taken,  and  one  of 
which  she  purchased  when  there.  The  sheep 
were  seized  as  the  property  of  McKay.  McKiiy 
81.  Jury- Refusal  of  Judge  to  submit  andhissister, with  anotherwitness.gaveevideme 
questions  to  jury— New  trial  refused — 5th  R.  substantially  the  same  as  that  of  the  plaintiff  as 
8.,  C.  104,  8.  20— In  an  action  for  trespass  to  land  to  the  property  in  the  sheep  and  the  mode  111 
by  cutting  and  removing  timber,  the  amount  of  j  which  it  had  been  acquired.  There  was  evi- 
damages  having  been  agreed  upon,  the  .Judge  !  dence  that  the  sheep  Iwru  McKay's  mark,  ami •> 
presiding  being  of  the  opinion  that  there  was  no  ■  witness  for  defendants  testified  that  plaintin 
other  question  of  fact  to  l)e  submitted  to  the  had  admitted  that  McKay  had  appropriated  to 
jury,  <lirected  judgment  to  be  entered  in  the  |  his  own  use  her  sheep,  and  that  he  was  to  have 
plaintiffs  favor  for  tlie  amount  of  damages  agreed  ■  given  her  others,  but  had  not  done  so,  and  that 
ut-on,  and  refused  to  submit  to  the  jury  certain  i  he  understood  plaintiff's  sheep  had  been  killeu- 


o.vi 


NKW  TRIAL. 


054 


Tliu  •IiiiIkii,  iiflur  rufurriiii^  to  tiiu  uoiiHiotiiiij; 
t'viilriii'c,  tiilil  tliu  jiiiy  tliut  if  tliu  tlvft'iiilaiitN' 
cviili'iii'i'  wikN  triif,  it  wiiN  iMivtlcl  iif  law  tiial  the 
nlii'i'li  wt'i'o  tml  till'  iilaJiitiU'M,  uinl  I")  ruoom- 
iiii'ikU'iI  tliuiii  to  l>i'iii^  ill  li  vi'i'ilii'l  for  (U'fuiiil- 
,uil-<  iipim  tliiN  gniiiiiil  if  tlicy  timk  tliu  hiiiiiu  viuw 
iif  till'  cviilriii'i',  iitliliiij;  tliiit  il  woulil  111!  liL'tliT 
fdi  till'  |iiii'tit'N  tliivt  tliL'JKiy  mIioiiIiI  fi)lli>w  the 
liiu,  uH  it  ilupui'tuiu  from  the  tuluit  of  the  Court 
wiiiilit  iiiilv  ti'iiil  to  |iiiitiiiig  litigjitioii. 

//.A/,  that  till!  vciilii't  must  lie  net  UHiile  on 
till'  ^'roiiiiil  of  iiiiHtlii'tu.'tioii, 

.liUlll'M,  J,,    ll'uMI  IllilllJ, 

Mih/laii  V.  Iinjtnhiim  ,1  a/.,  '.i  \{.  ic  (i.,  |(I4. 

h.i.    Mlitdlreillon      Defendant,  aner  a 

tiiurse  of  dealing  with  |ilaiiititr,  who  kept  a 
pnriiil  Htore,  caiiii'  to  a  Hettleiiieiit  in  uliieli, 
uitli  his  eiiiiNent  all  chargeN  for  Hiiii'ituoiiH 
liijiiniH  were  deducted  from  IiIn  auuount,  and  an 
i'(|iiid  aiiiDUiit  deducted  from  the  creditM  to 
wiiirii  he  was  entitled,  then,  a  halunce  lieing 
strmk,  he  gave  hi.s  note  for  the  aiiioiiiit  thereof, 
wliieh  was  the  note  Hueil  upon.  These  facts  ap- 
piiuiiig  from  the  plaintiirM  own  testimony  at 
tilt'  trial,  the  Judge  was  of  opinion  that  under 
Hv.  l(i  of  H.  S.,  chap,  lit  (.'hil  Series),  the 
liliiiiititl' should  hecomo  non-suit,  and  on  Ids  do- 
Lliuiiii,'  to  do  HO,  the  jury  were  directed  that 
pliiiiiliir  was  not  entitled  to  recover,  and  found  a 
viidict  iiccoidiiigly.  A  rule  nisi  heing  taken 
to  set  the  verdict  aside, 

lltld,  that  it  being  clearly  shown  that  the  ap- 
piopriutioii  of  defendant's  credits  to  the  payment 
»f  I'lmrges  for  spirituous  li'iuors  had  been  made 
witii  his  full  knowledge  and  consent  and  without 
(luii'ssof  any  kind,  there  had  lieeii  a  misdiruc- i 
timi,  and  a  new  trial  was  ordered.  I 

Smifh  V.  McEachrm,  3  N.  S.  I).,  '_>79.  ' 

$0.   Misdirection  In  not  leaving  question 

to  jury— I'laintitf  was  ejected  from  a  building  ' 
in  iiiissession  of  defendant  by  dropping  him  from  ' 
a  (Idor  or  window  upon  a  platform  below,  in 
coiHwiucnce  of  which  plaintiflfs  wrist  was  frac- 
tmoil.  The  jury  in  answer  to  questions,  found 
tliiit  the  injury  was  occasioned  Ity  defendant's 
act ;  that  defendant,  before  removing  him,  had 
reiniuated  him  to  leave,  and  that  in  eflfecting  his 
removal  defendant  did  nothing  more  than  was 
ncceasary  for  his  removal. 

Held,  that  there  should  be  a  new  trial  on  the 
ground  of  misdirection  in  not  leaving  it  to  the 
jury  to  say  whether  the  place  at  which  plaintilT 
«M  ejected  was  a  lit  and  suitable  place  for  the 
purpose. 

Wcatherbe,  J.,  dissmtiwj. 

Kelly  V.  Rhodes,  6  R.  &  G.,  524  ; 
6  C.  L.  T.,  542. 


I    87.    MiRdirection,  miKieadinxJur)    Wlien 

the  Judge  has  miMdirecied  \\w  jury  upon  a  point 
of  law,  ami  such  niisdiivitioii  may  have  niishd 
the  jury,  the  verdict  will  lie  aet  aiiidu  und  u  new 
trial  granted. 

Liiiti' of  Di/i  V,  lI'Mi'/cr,  ■lames,  li;t, 

HH.   MiHdirertlon    MiHMatement  of  legal 

proposition  A  misstatemeiit  of  a  legal  pro- 
jiosition  is  not  a  misdirection  unleds  it  timches 
the  very  point  of  the  case,  going  directly  to  the 
point  which  the  jury  have  to  determiiif,  limiting 
and  directing  their  verdict. 

I'ttifi  v.  m/nr,  1  N.  S.  I).,  75. 

HO.    Misdirection  ofJudge  in  not  eliarging 

jury  aH  to  eflect  of  certain  evidence— 1*.  gave  a 
young  colt  to  H.  P.,  who  live.l  in  his  family, 
but  there  was  no  evidence  of  any  delivery  to  H. 
r.  or  any  possession  or  use  of  the  colt  by  him. 
On  the  other  hand,  1'.  continueil  to  feed  and  use 
the  colt  as  bis  own  until  his  death,  previously 
to  which  he  gave  a  bill  of  sale  of  it,  among  other 
things,  to  the  phiintifl".  Some  time  after  the 
death  of  P.,  H.  P.  sohl  to  the  defendant,  against 
whom  the  plaintitf  brought  trover.  'I'he  jury 
having  found  in  favor  of  the  gift  to  H.  P., 

//(/(/,  on  a  motion  for  a  new  trial,  that  the 
facts  mentioned  were  not  sufficient  to  constitute 
a  gift  !ii/ir  riros,  and  that  the  .ludgo  should  li.ive 
j  told  the  jury  that  no  title  pas.sed  to  H.  P.  instead 
of  leaving  it  to  them  to  establish  the  validity  of 
tile  gift. 

McFarlam  v.  Flinn,  2  N.  S.  I).,  141. 

00.  Misdirection -Omission  to  put  ques. 

tion  to  jury— In  an  action  to  recover  damages 
sustaineci  by  plaintiflT's  son,  in  consecjuence  of 
the  negligent  driving  of  defendant's  servant,  the 
learned  Judge  submitted  two  questions  to  the 
jury  :— 

1.  Was  the  injury  to  the  boy  the  result  of 
the  negligence  of  the  defendant  or  his  servant 
in  driving  the  horses  or  team,  and, 

2.  Could  the  boy,  by  the  exercise  of  ordinary 
care,  have  avoided  the  injury. 

The  jury,  having  found  a  verdict  for  defen- 
dant, under  the  directions  of  the  learned  Judge, 
as  the  result  of  their  findings  on  the  questions 
put  to  them,  the  verdict  was  set  aside  and  a  new 
trial  ordered  on  the  ground  that  the  question 
should  have  been  put  to  the  jury,  whether 
assuming  negligence  on  the  part  of  the  ))oy, 
the  injury  could  not  have  been  avoided  l)y  the 
exercise  of  ordinary  care  on  the  part  of  the 
driver. 

West  V.  Boutilier,  6  R.  &  G.,  297  ; 
6  0.  L.  T.,441.' 


955 


NEW  TRIAL. 


956 


91.  Misdirection  —  On  tbe  trial  of  an 

action  for  iiialiuiuuii  arrest,  the  Judge  ia  nut 
required,  when  the  evidence  touching  the  facts, 
upon  wliich  the  question  of  reasonable  cause 
depends,  is  contradictory,  to  tell  the  jury  wliether 
or  not  there  was  reasonalile  or  probable  cause 
for  the  arrest,  but  directs  them  properly  in 
telling  them  that,  if  they  find  one  way  on  the 
evidence,  there  is  reasonable  cause,  if  they  lind 
otherwise,  there  is  not. 

Gunn  V.  Cox,  2  R.  &  C,  528. 
The  judgment  in  tliis  case  was  reversed  on 
appeal  to  the  Supreme  Court  of   Canada,   on 
ground  of  improper  reception  of  evidence. 

a  linn  V.  Cox,  3  8.  C.  R.,  296. 

92.  Misdirection  —  Plaintiff  brought  an 

action  of  trover  for  logs  cut  and  piled  by  him 
for  his  own  use  on  land  formerly  belonging  to 
John  Lytell,  who  had  died  intestate,  leaving 
three  heirs,  among  whom  were  the  plaintiff's 
wife  and  one  of  the  defendants.  A  general  ver- 
dict for  the  full  value  of  the  logs  was  found  for 
the  plaintiff,  under  the  direction  of  the  Tudge. 

Held,  that  the  verdict  must  be  set  aside  on 
the  ground  of  misdirection,  so  far  as  it  aflfected 
the  damages,  as,  even  regarding  the  defendants 
as  wrongdoers,  the  plaintiff  was  only  entitled  to 
one-third.    James,  J.,  dubitante. 

Quaere,  whether  the  plaintiff  having  admitted 

a  tenancy  in  common  with  defendants,  the  latter 

could  avail  himself  of  that  defence  without  a 

plea. 

Brittain  v.  Parker,  3  R.  &  C,  589. 

93.  Misdirection  —  When  the  Judge  In 

charging  the  jury  told  them  that  "putting  out 
of  consideration  all  admissions  that  had  been 
contradicted,  which  on  that  account  he  thought 
they  should  dismiss  from  consideration,  the 
plaintiflfa  were  in  his  opinion  clearly  entitled  to 
recover." 

Held,  that  this  was  not  a  misdirection. 
Morriion  et  al,  v.  Thompson,  2  R.  &  C,  411. 

94.  Misdirection  —  Where  the  learned 

Judge  who  tried  the  cause  instructed  the  jury 
that  the  only  contract  was  that  expressed  in  a 
telegram,  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  question  as  to  the  reasonableness  of  the 
delay,  the  jury  found  for  defendant,  and  a  rule 
for  a  new  trial  was  taken  under  the  Statute. 

Held,  per  Sir  W.  Young,  C.  J.,  Johnston, 
E.  J.   and  DesBarres,  J.,  (Dodu  and  Wilkins, 


JJ.,  dissentimj),  that  tlie  rule  for  a  new  trial 
must  be  made  absolute. 

Pitts  v.  Taylor,  2  N.  S.  D.,  M78. 

95.  Money  paid  under  mistake  of  focts  - 

Want  of  knowledge  of  facts  must  be  pleaded 
and  shown— New  trial  ordered  with  leave  to 
amend — Judgment  was  given  in  the  plaintiff's 
favor  in  the  County  Court  in  an  action  to  re- 
cover a  sum  of  money  paid  on  a  contract  for  the 
purchase  and  sale  of  a  quantity  of  trees,  whicii 
it  was  alleged  defendant  had  failed  to  deliver. 

The  sale  of  trees  was  made  in  August,  1882  ; 
they  were  shipped  to  plaintifif  in  November  of 
the  same  year,  but  were  never  received  by  him. 
The  defendants  were  partners  at  the  time  of  siile, 
but  dissolved  partnership  in  November  or  De- 
cember, 188.3. 

Plaintiff  alleged  that  he  had  paid  defeniknt 
.?280,  on  January  2nd,  1883,  but  the  only  pay- 
ment appeared  to  have  been  by  setting  off  pri- 
vate debts  due  by  King,  one  of  the  partners  to 
plaintiff  against  the  price  of  the  trees.  It  was 
urged  on  behalf  of  the  plaintiff  at  the  argument 
but  not  pleaded,  that  at  the  time  he  paid  the 
money  he  had  no  knowledge  of  the  failure  to 
ship  the  trees. 

Held,  that  the  plaintiff  in  order  to  recover 
must  plead  and  show  that  he  was  not  aware  at 
the  time  he  paid  the  money  of  the  failure  to  ship, 
and  that  there  must  be  a  new  trial  with  leave  t« 
plaintiff  to  amend. 

Culhert  v.  McKeen  et  al.,  20  N.  S.  R., 
(8R.  &G.),  1. 

96.  Motion  for,  must  be  made  on  Judge's 

j  minutes— The  Court  will  not  allow  counsel  to 
'  move  for  a  new  trial  upon  leave  granted  on  cir- 
cuit, except  on  Judge's  minutes  of  trial. 

Copp  V.  Etter,  James,  3(M. 

97.  Motion  for,  on  minutes  of  counsel- 
Minutes  must  be  verified  —  Motion  for  rule 
nini  for  new  trial  on  the  minutes  of  the  attorney 
who  tried  the  cause,  the  Judge's  minutes  not 
being  accessible,  must  be  verified  by  affidavit. 

Stephenson  v.  Didhanty,  James,  339. 

98.  New  trial  ordered  as  more  Just  to 

appellant  than  judgment  in  his  favor— Where 
judgment  in  favor  of  tiefendant  was  appealed 
from,  and  the  Court  considered  that  the  evid- 
ence showed  a  certain  amount  due  plaintiff,  and 
also  that  he  might  be  entitled  to  something  more 
than  such  amount,  a  new  trial  was  ordered  as 
more  just  to  plaintiff  than  to  give  him  judgment 
for  the  amount  shown  merely. 

Jmies  V.  Locke,  5  R.  &  G.,  198. 


957 


NEW  TRIAL. 


95» 


99.  New  trial  renised-Cause  referred  to  i 

Judge  before  whom  tried  for  final  judgment — 
Action  ngaiiist  defendant  as  indorser  of  a  pro- 
missory note  made  by  E.  B.  &  Sons.  Two  issuea  ; 
cif  fact  were  submitted  to  tlie  jury  at  the  trial 
iiiul  found  in  favor  of  the  defendant.  Plaintiff 
iippealed  from  the  findings.  ] 

The  evidence  lieing  in  some  respects  contradic- 
tory, but  the  preponderance  being  in  favor  of ' 
iltfendant,  tlie  Court  dismissed  the  appeal  with 
costs,  anil  referred  the  cause  back  to  the  Judge 
before  wliom  it  was  tried  for  final  judgment. 
Tht  Commercial  Bank  of  Windsor  v.  Borden, 
20  N.  S.  R.,  (8R.  &G.),  345; 
9  C.  L.  T.,  58. 

100.  Non-Joinder— Objection  on  account 

of,  must  be  taken  by  plea  in  abatement — 

//ltd,  that  there  being  no  plea  in  abatement, 
the  objection  taken  at  the  argument  to  the  non- 
joinder of  the  co-trustees  could  not  prevail. 

Zwicker  v.  Zi7ik,  2  N.  S.  D.,  291. 

101.  Non-8uit  entered  by  consent  of  soli- 
citor set  aside,  and  new  trial  ordered  — 
Costs— Plaintiff's  solicitor  entered  his  cause  for 
trial  in  the  County  Court,  and  plaintiff  .vaa  noti- 
fied of  the  fact  and  requested  to  attend,  but  was 
unable  to  do  so,  or  to  notify  his  solicitor,  on 
account  of  illness. 

A  judgment  of  non-suit  having  been  entered 
against  the  plaintiff  under  these  circumstances, 
with  tlie  consent  of  the  solicitor, 

Held,  that  the  judgment  was  irregular  and 
must  be  set  aside. 

Plaintiff  was  allowed  a  new  trial  on  payment 
of  the  costs  of  the  day,  other  costs  to  abide  the 
event. 

Walker  v.  Steioart,  7  R.  &  G.,  182  ; 
7  C.  L.  T.,  247. 

102.  Objection  must  be  talten  at  trial— 

The  Court  will  not,  on  a  motion  to  set  aside  a 
verdict,  give  effect  to  an  objection  not  taken  at 
the  trial,  and  which  might  have  been  remedied 
had  it  been  then  taken. 

//(dliburton  v.  Molloy,  James,  246  ; 
Gdlis  V.  Campbell,  James,  48. 

103.  Objection  talieu  too  late— Attorney 

subscribing  writ— Chapter  134,  Revised  Statutes 
(3rd  series),  "  Of  Pleadings  and  Practice  in  the 
Supreme  Court,"  section  197,  in  reference  to  the 
filing  of  bail  in  oases  where  the  Judge  has  refused 
a  rule  nid  for  an  appeal,  and  an  appeal  is  taken 
under  the  Statute,  is  confined  in  its  operation  to 
private  parties  and  does  not  extend  to  the  Crown. 
The  proceedings  having  been  instituted  in  the 


name  of  the  Attorney -General  of  Canada,  a  rule 
nisi  was  taken  out  to  set  them  aside,  on  the 
ground  that  the  Attorney-General  of  Canada  not 
having  been  admitted  a  barrister  or  attorney 
under  Revised  Statutes  (3rd  series),  chapter  130, 
was  not  qualified  to  subscribe  a  writ  in  this 
Province. 

Held,  that  the  objection,  not  having  been  taken 
until  after  a  plea  pleaded  and  a  new  trial,  had 
been  waived. 

Semhle,  thai  the  signing  of  process  in  the 
manner  excepted  to,  if  objectionable  at  all,  was 
merely  an  irregtilarity  and  not  a  nullity. 

Queen  v.  Ryerson,  2  N.  S.  D.,  276. 

104.  Plea  of  right  of  way  —  Evidence  or 

way  of  necessity — Under  a  plea  of  right  of  way, 
where  evidence  was  received  of  way  of  necessity, 
it  is  too  late  to  object  after  the  trial  that  such 
evidence  was  not  receivable. 

Tetd  V.  Beebe,  2  Thom.,  426. 

105.  Reftased  and  Judgment  entered  for 

plaintiff  where  former  judgment  for  defend- 
ant had  been  set  aside — In  an  action  by  plain- 
tiff to  recover  damages  for  the  removal  of  fixtures 
from  property  of  the  plaintiff,  occupied  by  de- 
fendant as  tenant,  the  latter  relied  on  a  bill  of 
sale  from  Q.,  a  former  tenant,  by  whom  the  fix- 
tures had  been  placed  upon  the  premises,  and 
under  whom  defendant  had  gone  in. 

The  term  for  which  Q.  held  having  expired 
before  the  removal  of  the  fixtures. 

Held,  that  plaintiff  must  recover,  and  that 
judgment  for  defendant  must  be  set  aside. 

Judgment  having  been  given  for  defendant  on 
a  former  trial,  judgment  was  now  entered  for 
plaintiff  rather  than  send  the  case  back  again. 

Harrison  v.  Smith,  7  R.  &  G.,  TAQ; 
8  C.  L.  T.,  58. 

106.  Refused  and  Judgment  ordered  by 

Privy  Council — 

On  appeal  to  the  Pricy  Council, 
Held,  that  in  a  case  in  which  the  facts  and 
law  appear  to  be  entirely  one  way,  their  Lord- 
ships will  make  tlie  presumptions  which  should 
properly  be  made  by  a  jury,  without  sending 
the  case  down  for  a  new  trial. 

DtsBarres  et  al.  v.  Shey,  28  L.  T.,  592 ; 
22  W.  R.,273. 

107.  Refused,  where  all  fbcts  before 

Court — M.  R.  being  about  to  make  a  convey- 
ance of  land  to  V.  R.,  went  on  the  land  in  com- 
pfiny  with  V.  R.  and  fixed  the  starting  point 
from  which  the  line  was  to  run.  A  deed  was 
made  accordingly.  After  the  death  of  M.  R., 
plaintiff,  his  widow,  with  the  consent  of  V.  R., 
got  a  surveyor  to  run  the  line,  which  was  done 


959 


NEW  TRIAL. 


960 


from  the  starting  point  indicated  by  M.  R.,  Imt, 
in  conseiiuence  of  an  error  ()f  the  surveyor,  on  a 
course  five  degrees  ditferunt  from  tliat  mentioned 
in  the  deed.  V.  R.  was  not  present  wlien  tiie 
survey  was  made,  liut  sul)se(|uently  assented  to 
the  line  as  run,  in  ignorance  of  tiie  fact  tliat  a 
mistake  liail  ))een  made.  V.  K.  conveyed  to 
defendant  according  to  tlie  description  in  Ilia 
deed. 

II>-ld,  that  tiic  assent  given  l>y  V.  H.  to  the 
line  as  run  by  tiie  surveyor  was  not  sutJicient  to 
establish  a  conventional  line. 

All  the  facts  being  before  the  Court,  and  it 

appearing  tliat  the  plaiiititi'  could  noi  succeed  if 

the  case  was  sent  to  a  new  trial,  judgment  was 

ordered  to  be  entered   for    the  defendant  with 

costs. 

Miller  V.  Toulml)!,  17  Q.   1$.  D.,  (JO.*}  followed. 

lioarfi  V.  War,,  7  H.  &.ii.,  .'WO; 

7C.  L.  T.,377.  j 

108.  Replevin -Mixture  of  articles -Jiew 

trial  to  find  which  belonged  to  plaintifT  and 
which  to  defendant— Wheic  phiiutitl'  replevied 
ccrlain  logs  from  defendants,  under  a  bill  of  , 
sale,  and  among  those  rightfully  belonging  t(j 
him  were  a  number  belonging  to  defendants, 
which  tlie  la'ter  had  mixed  up  with  tliem  under 
tiie  belief  tliat  they  were  all  their  own, 

Jldd,  that  there  siiould  be  a  new  trial,  in 
order  that  defendants  might  have  an  oppor- 
tunity of  proving  what  part  belonged  to  them 
and  what  to  the  plahiliff. 

Stewart   v.   Wluckr  tt  at.,  3  N.  S.  1).,  414. 

109.  Rule  nisi  for— The  Court  will  not 

reijuire  a  rule  nixi  to  set  forth  all  the  grounds 

on  wliich  the  party  liopes  to  obtain  a  new  trial. 

Moody  v.  yEtiia  I><>:  Co.,  '2  Thorn.,  173  ; 

Stanford  v.  Itdaiul  Xariijatloii  Co.,  Itl.,  185. 

110.  Surprise  —  Negligence  liability  of 

attorney  for— Affidavits  not  referred  to  in 
rule — Coats — Where  a  cause  which  stood  num- 
ber 65  on  the  docket  of  jury  causes  marked  for 
trial  on  the  first  day  of  the  sittings  was  tried  on 
the  first  day  of  the  jury  trials  in  the  absence  of 
the  defendant  (who  swore  to  surprise)  and  her 
witnesses,  though  her  counsel  was  present 
throughout  the  trial  and  addressed  the  jury,  and 
her  attorney  was  present  at  the  close  thereof,  a 
new  trial  was  granted,  the  costs  of  the  first  trial 
and  of  the  argument  to  abide  the  event. 

Elliott  et  al.  V.  Laild'i,  2  Old.,  170. 

HI.    Surprise  —  New   trial  granted  on 

ground  of— The  Court  granted  a  new  trial  on 
the  ground  of  surprise,  when  defendant  unex- 


pectedly denied  ever  having  signed  an  agree- 
ment which  plaintiff  swore  had  been  signed  liy 
defendant  and  8ulwe(iueiitly  lost,  on  tiie  plain- 
tifl"'8  affidavit  to  this  effect,  and  also  stating  liiat 
one  of  his  witnesses  at  the  trial  had  since  in- 
formed him  that  he  had  once  seen  the  agreement 
with  the  defendant's  signature  on  it,  and  tiiat 
he  was  not  aware  at  the  trial  that  sucii  uitne.fs 
knew  of  the  existence  of  the  agreement, 

Stdyy.  Purdy,  2  Thoiii.,  414. 

112.  Title -Evidence  of,  for  Jurj  -Where 

the  plaintiff  relied  upon  a  documentary  title  and 
failed  in  tracing  it  to  the  Crown,  and  gave 
doubtful  evidence  only  as  to  the  possession  of 
one  of  tlie  })rior  owir.'rs, 

//('/(/,  that  this  evidence  ought  to  have  lieen 
left  to  the  jury. 

Lciscx  of  She y  tt  al.  v.  Chisholm,  James,  'fl 

I 
1 

113.  Title -Proof  Of -Plaintlir  claimedto 

liefiwnerof  certain  logs  under  a  bill  of  sale  limii 
his  fatiier,  (!.  -M.,  wlio  was  tenant  in  coniiiiDii 
with  the  defendant  of  the  land  on  wliicli  tiicy 
were  cut.  Tiie  trees  from  wliich  the  logs  were 
cut  had  been  felled  by  persons  employed  liy  de- 
fendant to  perform  that  service,  and  tiie  loys 
bore  his  mark.  I'laintiff  relied  largely  on  an 
agreement  which,  he  contended,  was  made  lie- 
tweeii  the  workmen  of  both  parties  and  agreed 
to  by  defendant,  to  the  effect  that  wliatcvcr  lugs 
each  of  the  parties  "fixed"  lliey  were  respec- 
tively to  retain.  Defendant  and  his  .son  denied, 
and  tliere  was  no  evidence  to  shew  that  he  ever 
had  made  or  sanctioned  any  such  agreement. 

Held,  that  as  defendant's  right  to  tlie  logs  cut 
on  the  land  by  his  laborers  could  not  be  atl'ucted 
l»y  an  agreement  between  the  workmen,  plaintiff 
derived  no  title  under  tlie  bill  of  sale,  and  Iwv- 
ing  had  no  legal  possession  of  the  logs  sued  for, 
the  rule  for  a  new  trial  must  be  made  al)S()lute 

with  josts. 

Mitchell  V.  Lniitz,  1  N.  S.  1),,  5IS. 

114.  Title-Proof  of- Where  the  plaintiff 

on  the  trial  stated  that  he  had  a  good  title,  and 
nothing  was  shown  liy  defendant  to  inipencl! 
such  title. 

Held,  that  defendant  could  not  obtain  a  new 
trial  on  the  ground  that  the  plaintitl'  had  not 
proved  a  good  title. 

Lynch  v.  lliii'.i,  2  Tlioni.,  4l!i. 

115.  Trial,  short  notice  of-Where  short 

notice  of  trial  was  given  and  a  verdict  taken  for 

plaintiff,  subject  to  objection,  the  verdict  was 

Rpt  divide 

Drummond  v.  Carritt,  Jwnes,  26S. 


961 


NEW  TRIAL. 


962 


116.   Verdict  entered  by  Judge  Inconsls- 

tent  with  findings  of  jury  on  fact  set  aside—  ; 
Findings  of  jury  set  aside  as  against  evidence  ' 
—Amendment  after  argument  —  New  trial 
ordered— 5th  R.  S.,   c.  104,  s.  21.  s-s.  8— Tlie 
.liidicature  Act,  sou.  '2\,  suli-sfc.  8,  unuuta  thivt,  ' 
ii|i(>ii  a  trial  hy  jury  in  certain  eases,  the  .ludge 
'•iiisti'ail  of  directing  the  jury  to  give  eitlier  a 
Hi'iifial  or  special  verdict,  may  direct  the  jury 
tn  answer  any  t|ue3tions  of  fact  stated  to  tiieni 

Ijy  the  Judge  for  Mlicii  piupose  ; 

1111(1.  on  the  tinding  of  tlie  jury  upon  the  (jues- 
ti(jns  which  tiiey  siiall  answer;  tlic  Judge  shall 
enter  the  verdict,"  &c. 

PlaintifT,  as  .Sliuriff  of  the  County  of  Lunen- 
liiii';:.  levied  upon  a  vessel  on  the  stocks  as  the 
pinpeity  of  one  .McKeeii  an  ahsent  or  ahscond- 
iiig  (k'l)tor.  Defendant,  after  the  levy,  took  the 
vussfl  ott' the  stocks  and  disi)f).scd  of  her,  claim- 
ing \niiler  a  liill  of  sale  from  McKeeii  executed 
liffdic  the  attachment.  I'laintitf  thereupon 
liidught  trover. 

The  evidence  on  the  trial  showeil  conclusively 
tliat  tiie  hill  was  executed  fraudulently,  and 
till'  jury  having  found  all  the  (juestions  of  fact 
>iiliiiiittc(l  to  them  in  favor  of  the  defendant, 
till' .ludge,  disregarding  tiieir  findings,  entered 
a  vunlict  for  plaintitl' with  costs. 

/A/il.  that  the  words  of  the  Act,  "on  the  tind- 
iiigs  of  the  jury,"  etc.,  mean  consistently  with 
"ikll  tilldillgs. 

Uefeudaiit  gave  notice  of  motion  "on  ap- 
peal from  the  judgment"  of  the  Judge,  "aiul 
that  juilgment  he  entered  for  the  defend- 
ant, on  the  groun<l  that,  upon  the  findings,  the 
jiiilgiuent  is  wrong."  I'laintiH'  up  to  the  close 
lit  tile  argument  did  not  nu)ve  to  set  aside  the 
timling!!,  l)ut  ohtaine<l  leave  to  move  to  amend, 
N'  as  to  leave  that  course  open  to  liini,  and  he 
niuved  accordingly.  Dcfeiulant  after  the  argu- 
ment moved  to  amend  his  notice  so  as  to  cnahle 
liini  to  move  to  set  aside  the  verdict.  Both 
iimendments  were  aHowed,  there  hcing  no  sur- 
prise to  either  party,  aiul  neitlier  having  com- 
plained of  any  such  thing,  or  given  any  valid 
leason  why  such  amendments  should  not  he 
idliiwed.  The  Court  set  aside  hotli  verdict  and 
tiiidings  at  the  same  time  at  which  they  gave 
iuilgnicnt  allowing  the  amendments. 

Creii/hloii  v.  S/iinmi/,  7  R.  &  <i.,  lO'J ; 
7  C.  L.  T.,  14.-).  I 

lit.   Verdict  set  aside  as  unsatisfiictory-  ! 

New  trial  confined  to  one  issue— The  note  in 
suit  iiad  heen  given  hy  defendant's  father  to 
pluintitfout  of  affection  and  regard  for  plaintiff's 
motiiei.  Defendant  pleaded  that  the  note  was 
"litaiiied  l>y  fiaud,  that  at  the  time  it  was  made 
l»9  father  was  in  a  state  of  mental  indtecility, 

81 


and  that  there  was  no  good  or  valuahle  consider- 
ation. On  the  trial,  the  defence  of  want  of 
consideration  was  not  urged,  and  the  jury  foun  I 
for  plaintiff  on  the  other  two  i.ssues. 

J/i'til,  that  there  nuist  i)e  a  new  trial,  confining 
the  in(juiry  thereat  to  the  iiuestion  of  consider- 
ation. 

liaker  v.  Hiad,  1  N.  S.  D.,  199. 

118.  Verdict  set  aside-New  trial  confliied 

to  trial  of  one  issue — l'laintitt"'s  vessel  having 
run  ashore,  after  ineffectual  efforts  to  release  her 
from  the  rocks  where  she  lay,  he  gave  notice  of 
ahandonment,  which  the  uiulerwriters  refused 
to  accept. 

They,  in  the  interest  of  all  concerned,  very 
soon  had  her  removed,  and  repaired  at  a  total  cost 
of  .«!1;{(H),  and  then  tendered  her  to  the  plaintitl', 
who  refused  to  take  her,  and  hrouglit  suit  for  the 
full  amount  of  the  insurance.  The  defendants 
appealed  from  the  verdict  in  i)laintiff's  favor. 

//(/</,  that  there  should  i)e  a  new  trial  in  whicli 
the  inijuiry  should  he  limited  to  whether  the 
loss  was  total  or  partial,  the  (juestion  whether 
there  was  or  was  not  any  loss  having  heen  set- 
tled hy  the  first  trial. 

JJili-isor  V.  Thi:  Prorindal  Ins.  Co.  of  Canada. 
[  2  N.  .S.  ]).,  'JO. 

119.  Verdict-Setting  aside-Where  there 

is  evidence  on  which  the  jury  has  passed,  ami 
no  principle  is  involved,  the  Court  is  not  dis- 
posed to  grant  a  new  trial  in  matters  of  miiuir 
importance. 

I'laintiff  was  a  shareholder  in  defendant  com- 
pany. A  call  of  .'?3  per  share  was  made,  which 
plaintiff  refused  to  pay,  contesting  its  legality. 
.Suhsecjuently  he  sold  his  shares,  hut  the  com- 
pany's otiicers  would  not  nmke  the  transfer  until 
the  call  was  paid.  I'laintiff  thereupon  hrouglit 
an  action  against  the  company  for  such  refusal. 
The  jury  found  for  the  defemhmt  company. 

//'/'/,  that  the  verdict  could  not  hedisHwhcd. 
Whiti   V.  Yarmoutk  (las  Liijht  Co., 

1  N.  S.  I).,  204. 

120.  Verdict -Tlie  Court  will  not  send  a 

special  verilict  hatjk  to  a  jury  to  decide  upon  a 
presumption  wliich  they  would  not  l)e  justified 
in  finding. 

Le.isee  of  Archibald  v.  lilois,  James,  307. 

121.  Verdict— The  question  in  this  case 

was  simply  one  of  fact,  and  the  jury  having 
found  for  plaintiff,  the  Court  refused  to  set  the 
verdict  aside. 

O'Mullin  cl  al.  v.  McDonald  et  al., 
I  R.  &  C,  46. 


963 


NON-SUIT. 


964 


122.  Verdlct-Wbcro  the  question  at  is- 
sue was  puri'ly  one  of  fiat,  involving  no  legal 
point  whatever,  an<l  the  Judge  left  the  whole 
iliarge  open  to  the  jury,  who  found  for  plaintiff, 

//(/(/,  that  the  verdict  could  not  be  disturbed. 
Lyon  V.  Morton,  3  N.  S.  1).,  4'>(). 

123.  Verdict  -  Where  the  verdict  was 

given  in  favor  of  the  plaintiff,  with  the  approval 
of  tlie  Judge  who  tried  the  cause,  the  only  ques- 
tions involved  being  matters  of  fact,  the  Court 
refused  to  set  the  verdict  aside,  seeing  nothing 
in  the  case  that  obliged  them  to  do  so. 

Mooily  v.  Fuulkuir,  1  R.  &  C,  154. 


NON.JOIXDER- 
Stt  PKACTllE. 


NON-PROS. 

1.  Notice  Of  non-pros  may  be  given  at  the 

close  of  the  second  sittings  after  the  cause  is  at 
issue,  although  the  cause  has  not  been  called 
and  passed. 

irtneral  Mininij  Anxociufioii  v.  Victoria 

Coat  Miniiuj  Co.,  3  R.  &  C,  479. 

2.  The  Court  will  not  grant  a  rule  for 

non-pros  for  not  proceeding  to  trial,  even  after 
a  peremptory  undertaking  to  try  entered  into 
by  plaintiff  the  previous  term,  where  there  ia  a 
serious  intention  to  try  tlic  cause  on  the  part  of 

tlie  plainlitl'. 

O'Connor  V.  Fi^htr,  James,  "269. 


NON-SllT. 


1.    (ilrounds  In  rule  not  sufflclert-ZA/'',  i" 

an  action  of  trespass  where  the  jury  ,o\nid  a  ver- 
dict for  plaintiff,  that  the  verdict  settled  the 
issue  of  possession  in  favor  of  [jlaintiff,  and  that, 
if  not,  the  defendant  could  not  ask  for  a  new 
trial  in  onler  that  the  jury  shouM  pass  upon  this 
((uestion,  the  only  grounds  in  the  rule  being  that 
the  verdict  was  against  law  and  that  the  plain- 
tiff had  no  title  by  deed  to  the  land  to  which 
that  claimed  was  an  accretion. 

Ihirnham  v.  Dari'Xh  .  5  R.  &  O.,  388. 

Affirmed  ou  appeal  to  the  .Supreme  Court  of 

Canada,  17th  Ftbruury,  lUSo. 

Cas.  Digest,  515. 


2.  Judgment  for  defendant,  Ac.    In  an 

action  by  plaintiffs  against  defendant,  as  surviv. 
ing  covenantor,  for  rent  due  on  a  lease,  defen- 
dant pleailed  a  plea  wiiicii  was  a  substaiili.il 
admission  of  plaintiffs'  case.  At  the  trial,  pliiin- 
tiffs'  counsel  took  the  ground  that  cm  the  pleiiil 
ings  defendant  should  begin  ami  rested.  Delen- 
ilant's  counsel  refused  to  go  on,  antl  moved  fcjrii 
non-suit.  Plaintiffs'  counsel  iiaving  refused  In 
become  non-suit,  the  learned  Judge  reseiveil 
judgment,  and  sulisc(Hiently  gave  judgnieiii  in 
favor  of  defendant,  for  want  of  prosecution. 
Hthl,  that  tile   judgment  could    not  be  s\is. 

taincd. 

Vickiry  U  at.  v.  I'ricn,  7  R.  &  <!.,  5I.'{; 

SC.  L.  T,,  01. 

3.  Notice  of  action  held  sufficient -Non. 

suit  properly  refused  -The  Halifax  City  Chiu 

ter  (Acts  of   1864,  e.  81,  s.  •J7(j),  provides  tiiiit 

"  No  action   shall   be   conunenced   against  tlu' 

City   .     .     .    till  twenty  days'  notice  in  writing 

shall  be  given."     Plaintiff  proved  a  notice  ail- 

dressed  to  ami  served  upon  the  Mayor  of  the 

City  :     "  That  after  the  expiration  of  twenty 

days  from  the  service  upon  yim  of  this  mitiLe, 

an  action   at   law    will   be  commenced  in  tlie 

j  Supreme  Court  against  the  City  of  Halifax,  ui 

!  the  suit  of  Mrs.  O'B.  to  recover   .    .    .   damages 

j  for  injuries  sustained  by  her  in  falling  over  an 

'  unprotected    embankment  on   Campbell    Knaii 

1  owned  by  the  City." 

Hdd,  that  the  notice  was  sufficient  in  all 
respects. 

,-1^0,  that  i;  Jie  absence  of  any  special  pro- 
vision in  the  C;ity  Charter  for  service  of  prixtss 
upon  the  City,  the  service  upon  the  Mayor  was 
sufficient. 

AJ^o,  that  a  motion  to  non-suit  plaiiititl'on the 
authority  of  Wri<jht  v.  Tin  Midland  Huiluwj 
Co.,  51  L.  T.,  N.  S.,  539,  was  jiroperly  rcfiiseil, 
,1^0,  that  the  negligence  of  defendant  haviiiL' 
been  clearly  establislied,  and  tiie  iniestinn  nf 
contributory  negligence  having  been  left  to  tht 
jury,  who  found  in  favor  of  liie  plaintilf,  thu 
Judge  presiding  was  obliged  to  enter  jui'gnieiu 
in  accordance  with  the  findings,  ami  the  jnilg" 
ment  so  entered  shoidd  not  be  disturbed. 

O'liriin  V.  Till  City  of  llali/'ix, 

7R.  &<i.,:W3; 
7  C.  L.  T.,  4;ia. 


1.  No  witnesses  below  called  by  plain- 
tiff -  Non-sui^.  -  No  appeal— The  Court  will 
not  allow  an  apjieal  from  a  judgment  of  non-suit 
in  Justices'  Court  when  no  witnesses  have  beiD 
produced  by  the  phiintiff  on  the  trial  below. 

McCul/y  V.  liarnthiil,  Cochran,  SI. 


905 


NON-SUIT. 


966 


.1.  Ordered  by  Court  in  banco  on  areu> 

ment  of  rule  to  set  aside  verdict  -  I'laiiit  ill' lifl.l 
;i  liiU  iif  Hiile  !if  11  jiiiir  (if  oxen  from  McL.,  tlie 
(iM'iier,  who  continued  in  |io8!»e.sMion,  the  bill  of 
siilo  l>eing  duly  rei'imled  iinil  upheld  as  valid  l)y 
the  jury.  After  niakiu),'  the  Itill  of  sale,  McL. 
HUM  anesteil  at  the  suit  of  defendant,  and,  on 
NWiaiing  out  of  jail,  assigned  the  oxen  to  the 
chfi'iidant,  who  sold  them  at  auction  to  W.  ; 
nln'ieu|)on  the  ))laintitr,  under ii  writ  rif  replevin 
ajiaiiist  defendant,  took  the  oxen  out  of  the  pos- 
sts.»ion  of  \V.,  who  was  no  jmrty  to  the  suit, 
riaintitf  having  olitained  a  verdict,  the  Court 
set  the  verdict  aside  with  costs,  non-suited  the 
|ilaliitiff',  giving  the  defendant  the  costs  of  action, 
liiit  iiipt  of  trial,  and  directed  the  replevin  Ixmd 
til  lie  put  on  tile,  subject  to  the  order  of  tlie 
Coiiit  or  a  Judge. 

Frrmr  v.  Ih-wy,  S  R.  &  C,  (il. 


0.   Plaintiff  may  become  non-suit  at  any 

time  iiefore  the  delivery  of  the  verdict. 

(f'ruitt  V.  l'ro(u-lion  Ini.  Co., 
\  Thorn.,  (1st  Kd.),  10;  (2nd  Kd.),  I'J. 


t.   Set  aside  on  account  of  improper  re' 

jection  of  evidence— I'laintitf  lirought  an  action 
fill-  use  and  occupation,  which  was  afterwards 
luiuiiileil  liy  adding  a  count  for  mesne  jirotits. 
Dcfiiiilants  pleaded,  disimting  plaintitl's  title 
iuiil  possession,  and  plaintitl',  besides  joining 
issue,  replied,  setting  out  the  fact  of  an  eject- 
ment suit  against  one  Davis,  the  order  of  a 
•bulge  permitting  defendants  to  appear  as  land- 
Ifirds  and  defend  said  ejectment  suit,  the  jiro- 
ceeiliiigs  in  said  suit  on  the  (ith  May,  '7.">,  before 
McDiiiialil,  ,J.,  when  eatnt  the  said  William 
Jdst  and  the  said  Chnrcli  Wardens  and  Vestry, 
iinil  a  jury  who  foimd,  *e.  On  the  trial  the 
vnilict  of  an  ejectment  suit  was  tendered  and 
riitivcil  without  objection.  It  was  signed  liy 
the  foiiiuan  and  ,1'rothonotary,  and  purported 
tnlif  between  Jost,  as  plaintiff,  and  Davis,  as 
ilifi'iiilaut,  and  did  not  mention  the  present  de- 
femlaiits  at  all.  A  record  signed  by  the  attorney 
iiiul  lint  authenticated  by  an  otticer  of  the  Court, 
was  then  tendered,  which  recited  an  ejectment 
suit  lietween  Jost  and  Davis,  the  order  of  a 
•Jmlge  allowing  the  present  defendants  to  appear 
and  ilefend  in  their  own  name,  tile  proceedings 
on  April  L'Tth,  73,  when  "  before  8ir  W.  Young, 
(•  J.,  and  his  associate  .Fiistices,  came  the  par- 
tics  within  mentioned"  (being  the  plaintifl', 
Ilavis,  and  the  Church  Wardens)  "and  a  jury 
sworn,"'  &c.  The  record  was  rejected,  and  the 
pliiintiff  non-suited.  ; 


//'/'/,   tliac  the  record   should  have  licen  re- 
ceived. 

Weatherbe,  J.,  <liss,  iiliini. 

Joxt  V.  Chnri-h  W'nnli  ii.t  ami  Vmtry  of 

SI.  (;,Qnii\,   !  R.  &(;.,  4.5!. 

I 

8.    Submitted  to  in  deference  to  the 

Judge's    opinion,     which     was    erroneoun  — 

Although  the  .Judge  does  not  direct  ti  iionsuit, 
yet,  where  the  iilaintiff,  in  deference  to  the 
•Iiidge's  oi)inion,  choses  to  become  non-.suit,  he  is 
entitled  to  a  new  trial,  when  it  appears  that  the 
Judge  took  an  erroneous  view  of  the  law. 

j      Domrllh.  V.  Mic/.,.,  1  R.  &  (J.,  l.-,9,  fidlowed. 

I  Wi-i<jht  V.  Mornimj  Hindd  Co.,  'J  R.  &  (J.,  398  ; 

j  2C.  L.  T.,  lotj. 

j    9.    Submitted  to  in  deference  to  Judge's 

opinion  which  was  erroneous — Not  voluntary 

[  —Action  was  biougiit  on  a  bill  of  exchange 
I  drawn  by  defendants.  The  bill  with  the  accep- 
tance was  proved  and  read  without  objection, 
when  plaiiitiH'  rested,  whereupon  defendants 
,  moved  for  non-suit  on  the  ground  that  there  was 
no  evidence  of  stamping,  and  because  of  an  alter- 
1  ation  'uicxplained  on  the  face  of  the  bill.  Plain- 
tiff was  then  recalled  and  gave  evidence  as  to 
double  stamping  and  cancellation.  Defendants 
gave  evidence  as  to  alteration  in  the  bill,  con- 
tending that  the  date  had  been  altered  fronrJ/th 
.\ugiist  to  17th  August.  After  the  plaintiff'  had 
been  cuUeii  to  rebut,  the  .Judge  proposed  to 
submit  to  the  jury  the  view  that  if  plaintiff'  had 
received  the  bill  from  the  acceptors  he  would  be 
entitled  to  recover,  because  it  would  be  impossi- 
ble for  the  alteration  to  have  taken  jilace  after 
the  liill  had  left  defendants'  hands  and  before 
it  reached  the  plaintitf  and  liecanie  an  available 
bill,  but  if  from  the  defendants,  lie  could  not  re- 
cover. Plaintiff's  counsel  then  said  he  would 
submit  to  a  non-suit,  and  the  Judge  gave  him  a 
rule  to  set  it  aside. 

H'ld,  that  the  view  whicli  the  Judge  pro- 
posed to  submit  to  the  jury  was  incorrect,  that 
plaintitf  was  not  precluded  from  moving  to  set 
the  non-suit  aside  and  that  the  evidence  as  to 
alteration  of  the  date  and  cancellation  of  the 
stamps  was  for  the  jurj'. 

Domril/e  V.  Dnri.s  ,t  al.,  1  R.  &(!.,  159. 

10.   Variance  between  declaration  and 

proof— Judge's  minutes  conclusive  -Non-suit 
cannot  be  set  aside  on  ground  of  refusal  of 
amendment— Plaintiff  sued  on  a  money  bond. 
There  was  a  variance  between  the  declaration 
and  the  proof,  the  declaration  setting  out  the 
words  of  the  condition   uiion   performance  of 


967 


NON-SUIT. 


(»(],S 


wliiuh  the  Imml  was  to  liocoine  void  iiiHtuail  of  I 
the  r)liligivt(>iy  |)iiit  of  tliu  lioiitl,  iiiiil  tlif  jiliiin- 
till' WHS  iioii-Huilfil  with  u  rule  to  sut  asiili-  tiie  , 
non-suit.  On  tiiu  first  ihiy  of  turni  phkintitl'  oli- 
tainud  a  ruhi  iilii  for  ivn  iiini'iiclnient  of  tlie  «U'- 
chviatiiin,  ami  tiiat  a  nuw  trial  lie  grantfd.liucause 
the  Jmlyo  r)n  the  trial  had  improperly  refuseil  to 
grant  the  amendment.  At  the  argument  plain- 
tiff moved  to  di.si  liarge  this  rule  with  leave  to 
move  for  another  similar  to  it,  hut  adding  the 
words  "on  reading  the  minutes."  The  attiilavit 
of  plaintill's  eotinsel  stated  that  the  Judge  had 
refused  leave  to  insert,  as  one  of  the  grounds  in 
the  rule,  that  the  amendment  had  lieen  lefused. 
This  was  eontradieted.  | 

//lid,  that  the  iide  «/</  must  he  iliseharged,  ' 
us  tlie  Judge's  minutes  weTe  conelusive  as  to 
what  took  place  at  the  trial,  and  the  i»lainlitl' 
had  his  remeily  under  the  .Statute  for  the  alleged 
refusal  to  grant  a  rule;  that  the  jjlaintiff'  was 
j>roperly  non-s>iited  on  account  of  the  variance, 
and  that  the  non-suit  could  not  be  set  aside  for 
the  alleged  refusal  of  the  Judge  to  grant  the 
amendment,  even  assuming  jjlaintill's  account  of 
the  matter  to  lie  correct. 

Halifax  /iaiihiiiij  Company  v.   Worrall  il  at., 

4  K.  &.«;.,  482. 

11.    Verdict  Tor  plaintiflT   Disapproved  by 

Judge— Set  aside- No  non-suit,  exeept  by 
consent  -In  ca.se  of  verdict  for  plaintiff"  the 
Court  will  grant  a  rule  ni'ii  for  new  trial,  if  tlie 
Judge  who  tried  the  cause  considers  that  a  rule 
ougiit  to  j)ass,  liut  not  a  rule  nisi  for  a  non-suit, 
except  by  consent. 

Copp  V.  Etter,  James,  304. 


V2.    Verdict  for  plaintilf  set  aside  wliere 

point  reserved  was  whether  plaintiff"  should 
have  become  non-suit— Plaintiff",  a  passenger 
from  Halifax  to  I'ortland  by  one  of  defendant 
('o.'s  steamers,  sued  for  the  value  of  her  trunk, 
which  she  alleged  had  lieen  placed  in  the  hands 
of  the  t.'ompany's  .servants  and  a  check  given 
her  therefor.  Defenilants  denied  receipt  of  the 
trunk,  and  gave  evidence  that  plaintiff  had 
received  the  check,  not  from  them,  but  from  the 
cabman  wiio  had  driven  her  to  the  wharf.  At  the 
trial  tiie  learned  Judge  was  inclined  to  grant  a 
motion  for  a  non-suit,  but  consented  to  hear  de- 
fendants' evidence,  and  take  a  verdict  subject  to 
the  opinion  of  the  Court,  whereupon  a  verdict 
was  rendered,  by  consent,  for  plaintiff  for  the 
full  amount  claimed.  The  question  was  purely 
one  of  facts,  the  oidy  point  of  law  involved  lie- 
ing  as  to  whether  the  plaintiff"  ought  not  to  iuive 
been  non-suited. 

J/eld,  that  there  should  be  a  new  trial,  as  the 


case  was  one  for  a  jury  only,  ami  not  for  tiie 
Court  to  decide. 

Stiiiii'ioii  V.   Tin  Xi  II'  Kiiijlaiiit  <(•  X.  S. 

Shamxliii'  Co.,  .H  N.  S.  I).,  IhJ, 

13.    Voluntar)    Cannot  beset  aside- Tlie 

iludge  having  refu.sed  a  non-suit  ]ilaintill'  emi- 

sented  to  become  non-suit  on  condition  that  tiiu 

Judge    woidd   gran;    leave    to   set    it    aside,   to 

which  the  Judge  agreed,  reserving  the  (|uestioii 

whether  he  had  legal  power  to  do  so. 

//i/(l,  that  the  |)laintitt",  having  consenteil  to 

the  non-suit,  could  not  afterwards  move  t'l  sul 

it  aside. 

SmlHi  V.  McDoiialil,  1  U.  &  C,  iM.-i. 

U.    Voiiintary  -Excusabie-Set  aside  -  A 

witness  for  jilaintitt's  was  alhiwed  to  leave  the 

Court  on  the  understanding  that  he  would  iiii- 

nu'diately  return  if  sent   for.     The  cause  lieiii;,' 

called,  the  witness  was  sent   for  and   jirocceiltMl 

toward  the  Court,  but  returned  home  on  lieiiig 

informed  by  some  of  the  jurymen  in  the  jjreviims 

case  that  tlie  Court  had  adjourned  for  tlie  day. 

The  witness  not  apiiearing,  i)laintilfs  apjilieil  tn 

have  his  evidence  taken  at  a  future  day.     Tills 

lieiiig  refused  and  tlie  evidence  being  mateiial, 

they  became  non-suit.    Under  the  circumstiUKes, 

anil  it  appearing  that  the  plaintiff  did  all  tliat 

was  necessary  to  olilain  the  attendance  of  tlie 

witness,  a  new  trial  was  granted  on  jKiyinuut  uf 

costs. 

dnni  (I  al.  v.  //fin ,  .'{  N.  S.  1).,  ."i.'i. 

15.  Voliintarj-New  trial-On  tiie  trial  ot 

an  action  tiie  ])laintiff'  was  non-suited,  and  mi 
the  argument  of  a  rule  to  set  such  non-suit  usiile, 
and  for  a  new  trial,  it  was  contended  that  the 
non-suit  was  voluntary.  The  minutes  of  the 
Judge  wlio  tried  the  cause  merely  stated  that  a 
non-suit  was  moved  for,  that  the  plaintiff's 
counsel  replied,  and  that  judgment  of  non-suit 
was  entered,  and  the  Judge  himself  said  that  he 
believed  the  understanding  to  be  that  a  rule  was 
to  be  granted,  'i'lie  .Supreme  Court  of  Nuva 
Scotia  held  the  judgment  of  non-suit  to  he  vol- 
untary, and  discharged  the  rule. 

Xot  nporkd  beloir. 

On  appeal  to  /he  Svpreme  Court  of  Cnnwhi. 

Held,  that  as  there  was  a  doubt  as  to  wiiat 
took  place  at  the  trial,  the  parties  were  entitleil 
to  the  benefit  of  that  doubt,  and  the  rule  to  set 
aside  the  non-suit  must  be  made  absolute. 
Levy  v.  Halifax  and  Cape  Breton  IV y  A-  Coai  Co., 
2Mh  February,  ISStJ,  Cas.  Digest,  310. 

16.  Voluntary  non-sult  cannot  be  disturbed 

—On  a  motion  for  non-suit  the  learned  Judge 


909 


NOVA  SCOTIA. 


970 


txpressed  tho  opinion  tliiit  the  plaintiff's  rvi- 
iltiK'f  WI18  I'xtrcmc'ly  weak,  Imt  <li<l  not  suggest 
tliat  there  was  nothing  for  the  jury.  The  phiin- 
titr'H  counsel  having  thereujton  ofTered  to  become 
iKJii-Huit  if  with  leave  to  set  it  aside,  whiuh  leave 
was  given, 

fitid,  that  the  non-suit  was  voluntary,  and 
C(Jii!il  not  lie  tlisturlieil. 

0(tkin  V.  KkiIhhi  it  nl.,  4  R.  k  CJ.,  554. 

17.   Voluntary  noii'Suit  entered  by  consent 

of  solicitor  set  aside  —  I'laintiff  "s  solicitor  en- 
ttifd  his  cause  for  trial  in  the  County  Court, 
ami  jilaintitr  was  notified  of  the  fact  ami  re- 
(|Ui'8ted  to  attcntl,  hut  was  unable  to  do  so,  or 
t(i  notify  his  solicitor,  on  account  of  illness. 

.\  judgment  of  non-suit  having  been  entered 
iij;.iinst  the  plaintiff  under  these  circumstanccH, 
with  the  consent  of  the  Holieitor, 

/AW,  that  the  judgment  was  irregular  and 
nnist  lie  set  aside. 

i'laintiff  was  allowed  a  new  trial  ou  payment 
(if  ilie  costs  of  the  day,  other  costs  to  abide  tiie 

evi'iit. 

Walhi-  V.  Stiwart,  7  R.  &  «!.,  182 ; 
7  C.  L.  T.,  •J47. 

t^.   Voluntury  non-suit  submitted  to  on 

account    of  wrong    ruling    of    Judge  —  The 

[ilaiiLtitf  company  in  order  to  prove  a  certain 
niiticc,  called  their  secretary,  who  testified  to 
till'  liiss  of  the  original,  and  to  a  sufficient  search 
having  been  made  for  it.  On  cross-examination 
lie  stated  that  he  did  not  know  from  whom  he 
hail  received  the  original,  nor  in  whose  hand- 
writing it  was.  The  paper  was  tendered,  ob- 
jected to  and  rejected,  and  the  Judge  also 
lefused  to  permit  the  plaintiff  then  to  introduce 
further  evidence  to  prove  it.  The  plaintiff  com- 
|);uiy  also  offered  answers  to  interrogatories  by 
iiiio  iif  the  defendants,  which  were  on  tile  ;  and 
the  answer  of  another  of  the  defendants,  which 
hail  nut  been  filed,  but  which  was  admitted. 
These  were  rejected.  The  plaintiff  company 
theicupou  became  non-suit. 

Htlil,  Wilkins,  J.,  ilixneutiiiij,  that  the  discre- 
tiiin  (if  the  Judge,  as  to  the  further  examination 
iif  the  witness  had  not  been  properly  exercised, 
that  the  answers  of  the  two  defendants  should 
have  been  received,  and  that  the  non-suit  should 
lie  set  aside. 

Wind-ior  Marine  Ins.  Co.  v.  Ladd, 

•2N.  S.  1).,493. 


NOTICE  OF  ABANDONMENT- 
Stt  INSl'RANCE,  MARINE. 


NOTICE  OF  DISHONOR- 

S,f.  BILLS  OF  EUHANfiE  AND  PROMIS- 
SORY NOTES. 


NOTICE  OF  TRIAL- 
Stc  TRIAL. 


NOTICE  TO  QIJIT- 
Stt  LANDLORD  AND  TENANT. 


N0TE8- 

PromiKsory  - 

"^  e  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES. 


NOVA  SCOTIA. 
1.   Cape  Breton,  annexation  of  to  Nova 

Scotia— By   the  treaty   of    Paris,   of  the   l(»th 

'  February,  17(5.1,  the  Island  of  Cape  Hrcton  (which 
had  been  invaded  and  taken  by  the  British  forces) 

,  was  ceded  by  France  to  the  King  and  Crown  of 
Creat  liritain.     By  a  proclamation,  issued  by  the 

i  King  in  Octoljer,  17(>.'l,  the  Islands  of  Cape 
Breton  and  St.  John's  were  annexed  to  the  gov- 
ernment of  Nova  Scotia,  and  the  proclamation 

;  autliori/.ed  the  (Jovernor  to  call  (Jeneral  Assem- 
blies, in  the  said  governments  respectively,  as 
soon  as  the  circumstances  of  the  colonies  would 

I  admit.  In  the  year  1784,  the  Crown,  by  a 
commission  to  the  (!overnor-in-Chief  of  Nova 
Scotia,  and  the  Islands  of  St.  John's  and  Cape 
Breton,  granted  a  constitution  to  the  Island  of 
Cape  Breton,  to  consist  of  a  Lieutenant-tiovernor, 
Council  and  Assembly,  distinct  from  that  of 
Nova  Scotia.  The  government  of  the  Island 
continued,  however,  to  be  regulated  by  a  Lieii- 
tenant-dovernor  and  Council,  but  no  Ceneral 
Assembly  was  convened,  as  directed  by  the 
commission  of  1784.  In  the  year  1820,  the 
Crown,  in  the  commission  to  the  (Jovernor-in 
Chief  of  Novft  Scotia,  annexed  Cape  Breton  to 
Nova  Scotia.  The  inhabitants  of  Cape  Breton 
petitioned  the  Crown,  complaining  of  the  ille- 
gality of  the  re-annexation  by  the  Act  of  the 
Crown  alone,  without  their  consent,  or  by  an 
Act  of  the  Imperial  Parliament,  as  contrary  to 
the  proclfimation  of  1763  and  the  commission  of 
1784. 

Held  by  the  Judicial  Committee  of  the  Privy 
Council,  that  such  re-annexation  was  legal,  and 


D71 


ORDERS  IN  COUNCIL. 


072 


tliat  tlic  petitionee  wore  not  entitled  to  a  Hepar- 
nto  uoMHtitution  timler  tlic  coinniiHHion  of  l7St. 
C'ajie  Union,  In  rr  The  li/niiil  of, 

n  Moore,  P. C.s.m 
2.    Legislative  Assembly  of  -  Power  to 

puniHli  for  contempt  — 

Set  ASSEMBLY,  ilOlSE  OF. 


JfOVATIOJf. 


3.  or  tOth  or  November,  1S06  -  Trade  to 

St,  Domingo  witii  lit'cnNt;. 

Thf  C'/ydr,  Stewart,  Kki, 

4.  or  24th  or  June,  1803-€olonla!  trade, 

outward  cargo  contraliand. 

Th>  UniftdStaiM,  Stewart,  IKi. 

5.  or  Ijith  or  Jul},   1807-A  qualllled 

license  to  traile  to  St.  Domingo;  and  I4tli  De- 

cenilter,  IHOS,  trade  to  St.  Domingo  laiil  (ipcii. 

Thi'  JUarer,  Stewait,  I7;t. 


Plea  sufflrlenil}  setting;  rorth  a  novation  - 

A    pica,    netting   fortii    an    agrfi-meiit    lietwuen 

jilaintift'  and  defendants,   that    plaintitt"  siiould    '''     '  '^'*I: 

aucept   third    parties    as    paymasters    for    tiie  '  '  "  '"'        ' 

amount  of    his   ilaini  against    defendant.^,   that 

said   tliird  parties  agreed  to  i>ay   tlie  same  to 

])laintitr,  and  tiuit   plaiiitilF  acceptetl   tiie   said 

tiiird  parties  and  released  defendants,  is  good. 

Covjis  V.   irirrtfn/.,  1  Old.,  1  •_'.'<. 


6.   or  26th  or  April,  not  revoked  In  con* 

.seipienoe  of  the  Duke  du  {'adore 's  letter  of  .\iig. 


a)!.*  I'aiht,  Stewart, '.'(io. 
See  DECREES  OF  BERLIN  AND  MILAN. 

7.   Of  2nd  of  October,  1807 -Blockade  of 

tiie  Kyder  discontinued,  ];{th  July,  18)Mt. 


S,r,  ai.o,  BILLS  OF  EXfHANfiE  AND  PROM- 
ISSORY NOTES,  III.  1  &  -Ml.  IS. 


NIISANCE- 


8.  Ot  3lHt  or  May,  180ft-Trade  to  Heligo- 
land. 

Stewart,  Index,  xuh  Orders  in  t'ouiuil. 

9.  or  nth  November,  1807  -  Trade  In 

enemy's  produce,  revoked,  '-'(ith  April,  iSdIi. 

Till   Tho7iias   ]\'i/soii,  Stewart,  •-'(ifl. 


1.    Municipal  liability  ror  nuisance  in  the      ^^    ^^  „„,  jf„,ember,  1807-Certmcates 

nignwav  — 


See  HALIFAX,  CITY  OF. 
2.    Rule  nisi  for  precept  to  sherlflT  com* 

mandiug  him  to  abate  a  nuisance. 


(^u-.eu  V.  Htmlry,  James,  105.  ,  tweeu  enemy's  ports, 


of  Origin,  revokeil  hy  "JOtli  April,  ISO!). 

The  American,  Stewart,  '1%. 

11.    or  7th  January,  1807-Tradlng  be- 


OFFICERS  OF  THE  CROWN- 
Action  agalnst- 


See.  EJECTMENT,  19. 


The  Express,  Stewart,  'J!*'.'. 

12.    or  31st  July,  1810 -To  detain  Anierl- 

can  vessels — Vessels  and  cargoes  detained  iimlei 
this  Order  in  Council  could  not  he  sold  or  Iniiled 
previous  to  adjudication  unless  perisliable. 
Pelition  of  Sir  John  Warn  it  el  aJ.. 

Stewart,  .'t'JT. 


ORDERS  IN  COl'NCIL. 


13.    or  26th  April,  1800-Suspended  b) 

Order  23rd  June,    1812,   conditionally.    The 

condition  not   having  lieeii  ci)mplie<l  witli,  tiie 

1.     Allegations  contained  in  an  Order  in  [  first  Order  held  in  full  force  again. 


Council  may  he  questioned  in  a  suit,  without 
making  the  Crown  or  Oovernment  a  party  to 
the  suit. 

W.  d-  A.  H'y  Co.  V.  W.  C.  li'y  Co., 

3  R.  &  C,  376. 

2.  Order  in  Council  or  23rd  or  Septem- 
ber, 1803 — Trade  with  the  free  jiorts  to  continue, 
notwithstanding  hostilities  with  Spain. 

Niientra  Senora  Del  Carmen,  Stewart,  83. 


The  Georfie,  Stewart,  38!t. 

14.  or  8th  April,  1812  -  Permission  to 

import   and  export,   from    Halifax    to    United 
States,  meat,  etc. 

Stewart,  Index,  tmh  Orders  in  Council. 

15.  or  13th    October,    1812-DittO,   not- 
withstanding hostilities  with  the  United  States. 

7'he  Economy,  Stewart,  446. 


973 


PARTICULARS. 


974 


lA.   or  26th  October,   1812-Connrmlns  OVERHOLDING. 

Ailiniml  S(iwyer'n  licenHost. 

7Vi«  Jiiirani,  Stewart,  470.      1.    OveHioIdinx  process  —  Service  of  the 

affidavit   with  the  notice— Waiver  of  irrej;- 

II.    Of  '26th  April,  1809-For  prohibiting   ularity— Ti-.c  aHiiliuit  on  wiiicli  tlit;  application 

commerce  with   France — Tho  priiiuiplv  of    it    was  intcndud  to  ho  made  was  served  sepivrateiy 

ciiiisiikTud  and  jiistitied.  |  from   the    notice,  altiiougii    Imth    were  served 

Nut  a  l)loci<ade,  properly  speaking,  hut  a  do- '  in  due  time.    The  .Statute  Imd  the  words,  "witli 

f.Mi.iive  measure  of  another  kind.  the  notice." 

Th'  Orion,  .Stewart,  497.        Hi'/d,  hy  McDonald,  C.  J.,  and  Thompson,  .!., 

that   tiie  service   need    not    he   concurrent,    m 

18.    or  2l8t  April,  181'2     On   Berlin    and    "with'  meant  "als.). 

Mil, III  Decrees.  JI>hl,  )>y  Weatherhe,   Righy  and  Thompson, 

iStewart,  Appendix,  III.    .IJ.,  that  the  irregularity,  if  any,  was  waived  hy 

I  tiic  defendant  reading  an  affidavit  in  answer  to 

10.   or  23rd  .lune,  1812 -Suspending  Or-  t''"  ""« «°  »«''^cd. 

(Uis,  Tth  .lanuaiy,  IS(>7,  and  '-'(ith  April,  I  SIM).  '*""""'  "••  ■*''""'"'.  ''»  R-  *  ''•.  -»-■ 

Stewart,  Appendix,  V. 

2.    Motion  on  aflldaTit  on  behair  of  de- 
fendant to  discharge  his  recognizance  entered 
into  hefore  two  .Justices    for  overholding   the 
Sfuvart,  Appendix,  VII.    |daintift"s   premises,    the    plaintiff   not    having 

entered  the  cause  on  the  summary  list  for  trial, 
»«  ^nAt    n  J.  t.         jc^a     ry  I   wi       "or  comuiencod  an  action  of  ejectment. 

21.   or  13th  October,  1812    General  Re*      .,    .,  i  n  <       n,. 

.,,,,.      V,  Sir  '2nd  R.  S.,  c.  140. 

(iiisiils  against  tlio  United  States. 


20.   or  loth  August,  1812 -To  detain  Ante 

liLiiii  vessels. 


Stewart,  Appendix,  VIII. 

22.  Order  respecting  return  cargoes  or 

licensed  veaaels— 

Stewart,  Appendix,  IX. 

23.  or  26th  October-Admiral  Sawyer's 

licenses— 

.Stewart,  Appendix,  X. 

21.  or  8th  April,  1812 -Trade  ofXova 

Scotia,  &c.,  with  the  United  States— 

.Stewart,  Appendix,  XI. 

25.  or  13th  October,  1812 -To  continue, 

notwithstanding  hostilities  — 

Stewart,  Appendix,  XII. 

26.  or  13th  February,  1813-Order  relat- 
ing to  the  sale  of  American  ships— 

Stewart,  Appendix,  XIV. 

21.   Privy  Council-Order  or  Her  Majesty 

in  Council  allowing  an  appeal  from  the  judg- 
ment of  the  Supreme  Court  of  Nova  Scotia  to 
herself  in  Her  Privy  Council— 

See  APPEAL,  IX.,  1. 

28.  Proclamations  or  Governor  in  Council 

bringing  Canada  Temperance  Act  into  force— 

See  CANADA  TEMPERANCE  ACT. 


Rule  granted  without  costs. 

littiier  v.  Gnnn,  James,  XM. 


OVERSEER- 
See  POOR  LAW. 


OVERVALUATIOy- 
See  INSURANCE. 


PARLIAMENT  OF  CANADA- 
Jurisdiction  or- 

Ste  BRITISH  NORTH  AMERICA  ACT. 


PAROL  EVIDENCE 

See  evid'=:nce. 


PARTICUIARS- 
See  PLEADING. 


975 


PARTITION. 


976 


PANEl- 
Sie  JUBT. 

PARENT  AND  CHILD 
St,  INFAJiT. 


PARTIE8- 
1 .    Adding  or  striking  out- 


2.    Xon-Jolnder   How  objected  to— 

Set  PLEADING. 


i.   Partition    Suit  for   ArquloHrenre — 

Adverse  poBseiiiion  —  •laincH  Aylward  liy  IiIh 
will  (liriH'teil  iiH  followH  ;  "  I  .ucoininuiiil  In  my 
wife,  wliiiiii  I  onluin  my  executrix,  niitl  .1.  it, 
fttnl  A.  P.,  exCMitord,  thivt  at  tlio  lUNoretimi  nf 
my  wi(lr)W  wlifii  hIic  nmy  tUu'iii  pniiuT,  tlicy, 
with  licr,  may  iliH|><mtt  (if  my  real  (mtate,  in 
which  of  my  hoiim  may  iiicliim  to  j,'ivu  thu  ln'Kt 
price  ami  to  aHHiHt  her  in  making  an  e(|ual  ilivi- 
Hion  thereof  aiii(in>{  my  tivenonH."  'riuu-xecutniH 
reMdiinceilanil  tlie  wiilow conveyed  the  propcily, 
Deeemlter  Ist,  IH")((,  to  John  Aylward,  wlm 
conveyed  it  to  one  Duncan,  Deeendier  '.Mill, 
IS.V),  Moth  the  deeds  were  recorded  .luiuiiiiy 
ntli,  IH.VJ.  The  iieir«  of  Ihnican  conveyil  it  ill 
iNdS  to  Merritt  and  Uligli  liy  deed  recorded  in 
iSflO.  In  October,  IHTI,  Kdward  Ayhviinl 
•SVf  AMENDMENT,  'commenced  proceedingH  for  a  partition,  cliiiiiiiiig 
that  the  widow  iiad  conveyed  the  land  hci  rctly 
to  John  Aylward,  ami  in  his  evidence  >tati'i| 
that  he  liad  never  lieen  anked  hy  the  widow  or  tiio 
executors  to  offer  for  the  land,  and  wan  not  ii«  iiru 
of  the  deed  to  .lojni  Aylward  until  aliout  a  year 
after  its  date  ;  hut  it  did  not  a|)pear  tliat  liivhiul 
ever  olijeeted  to  the  title  of  John  Avlwiinl 
under  the  deed,  or  called  in  i|ue«tion  tlie  title  nf 
Duncan  or  thosie  deriving  title  from  his  IicIph; 
and  he  ilid  not  assert  thai  heorany  of  hislirotliiTK 
was  willing  to  give  more  than  ■lohn  had  given, 
or  that  the  laml  was  worth  more. 
^-.         ui*»       i».4#_         n  Hf/(L  that  in  view  of  the  lapse  of  time  and 

1.    Lands  subject  to  right  of  way  — Par-  ^,      ,  .      .,         ',.  . 

^.,.  „       ,,,   .    '.„.         ,     T      ,  ,  f      1     .      the  adverse  possession.  It  was  too  late  to  at  tempt 

tition  of  —  I'laintifl    and    the   two  defendants    _     ,<.,.,      _..,      r  ,,      •_        ,   i„.  ,         ., 

purchased  a  Held,  divided  the  front  portion  int( 


3.    Practice  as  to— 


Sec  PRACTICE. 


PARTITION. 


to  defeat  the  title  of  Merritt  and  Hligh  mi  tlie 


lots  according  to  a  certain  plan,  laying  off  two 
lots  as  proposed  streets,  connecting  an  existing 
street  with  the  undivided  roar  jKirtion  of  the 
land  and  furnishing  the  oidy  access  to  that  rear 
portion  from  any  existing  street. 

The  defendant  1*.  jjurchased  the  undivided 
rear  portion  and  two  of  the  front  lots,  one  on 
each  side  of  one  of  the  proposed  streets, 
the  said  lots  being  described   in   the   deed  as    gages  no   bar  to— The    j)laintifr  bronglii 


verbal  evidence  of  petitioner  that  an  option  hail 
not  been  given. 

Quaere,  whether  title  can  be  tried  in  pmci'i'il. 
ings  for  partition.     Sen   LtCai'ii    v.  llonli rinnii 

»r  «/.,'_»  X.  s.  D.,4i:i. 

Aylivnrd  v.  Ayhrnrd  el  a/.,  '2  R.  fi  (i.,  •.'4.S; 

I  ('.  L.  T.,  7(iti. 

3.    Partition  suit  —  OutstandlnK    mort- 

■iiiil 


liounded  on  the  north  and  south  respectively  by 
the  street  in  questioi.. 


for  a  i>artition  of  certain  lands  under  the  fuilciw- 
ing,   among  other  cireumstances  :  the  dcfcml- 


ffelti,  that  the   plaintiff  was  estopped  as  a  ]  ant  and  his  brother  were  devisees  under  their 

grantor  in  the  deed  to  defendant  P.  from  deny-  father's  will  of  a  large  tract  of  land  wliich  they 

ing  that  a  right  of  way  was  granted  over  the  held  as  tenants  in  common.     They  executed  twn 

land  designated  in   the  deed  and  on    the  plan  nuirtgages  thereon  which   were  outstanding  at 

under  which  the  sales  were  nuult   as  pioposed  the  time  of  action  brought, 

streets.  A  judgment  was  subsefjuently  obtained  against 

Held,  also,  that  although  the  land  designated  the  brother  and  an  execution  issued  under  wliicli 

on  the  plan  as  proposed  streets  was  subject  to  his  undivided  half  was  offered  for  sale  and  jnii- 

a  right  of  way  to  the  rear  and  to  any  portion  of  chased  by  plaintiff,  who  received  a  deed  frum 

the  adjoining  lots  yet   that  as   the  title  to  it  the  Sheriff. 

remained  in  the  plaintiff  and  defendants,  it  was  After  the  execution  of  the  deed  it  was  discov- 

subject  to  partition  under  chapter  102  of  4th  ered  that  the  description  therein,  as  well  as  in 


Revised  Statutes. 

Pwjh  V.  Petern  el  al,  2  R.  &  C,  139. 


the  advertisements  of  the  sale,  was  erroneous. 
The  plaintiff  seeking  partition,  the  defendant 


977 


PARTNERSHIP. 


978 


rt'NiNtcil  and  pUmkIimI  (I)  that  thu  lirothvr  wait 
Kiill  ill  iMiHMfHMidii  uilvcrNcly  to  thu  plaintiir,  and 
tli.it  tlit>  lattLT  ciiiild  not  maintain  an  action  for 
|iiii'titinn,  not  )iaving  thu  poMHOHMion,  and  ('2) 
tiiiit  plaintiff  oii^lit  not  to  luivc  |Mirtition,  inaii- 
iiiiii'li  UH  hiH  application,  if  ^'I'antud,  woid<l  )k> 
iiiily  nugatory  and  inoperative,  and  Hiilijeut  ilu- 

tt'llillint   to  COHtM, 

If  I  Id,  tlint  the  Shuritf'H  deed  gave  mitficiunt 
Ht'ii-iii  for  a  procui.'din^  of  partition  ;  tliat  on  thu 
tii.il  the  titlu  of  the  juilginuiit  duhtor  nii^'lit  lie 
iiivrHti(,'atud  ;  that  thu  urrorH  in  thu  duMcription 
iiiiilil  Ik!  corructcd  l>y  refuri'Mcu  to  tliu  other  |)or- 
tjoiiiiif  thu  duNcription,  and  that  tlii!  oiitNtanding 
iiii>it.{a>,'('H  wuru  MO  liar  to  thu  partition  Noii^'ht. 

Till' Siipruniu  Court  of  Nova  Scotia  ikwmchhuh 
.ill  the  powers  with  referuncu  to  Huits  in  parti- 
timi  with  which  the  K<|Uity  Court  in  Kn^dand 
is  iiivuKtud. 

LiCaln  V.  //oifirintni,  '2  X,  S.  I).,  4!.'<. 

4.    Kcturn  orComniiNslonrrN    Application 

to  net  aside  — I'laiut ill'  xriught  to  sut  asidu  thu 
it'tiirn  iiiadu  in  an  action  of  partition  hy  thu 
CiuiiiiiiNNionurti  didy  a|)point('d,  on  thu  ^Tound 
tli:tt  tlicy  had  iin]iro|iurly  allottud  to  onu  of  thu 
|i.irtiti<inurs  a  lot  of  land  liulow  its  valiiu  and 
liiliiw  thu  pricu  plaintiff  had  notified  thuni  hu 
wdiilil  pay  for  it.  Thu  uviduiicu  in  support  of 
till'  plitiiitiff'H  claim  conMiHtud  Kiniply  in  tiiu  fact 
(liitt  liiiving  liy  Home  niuauH  olitained  a  knowledge 
.if  the  decision  of  thu  CoiiiiniHKionurtt  liufore  they 
Myiied  their  return,  he  had  offered  them  S'2(MNI 
mine  for  the  lot  in  ({uestion  than  the  value  tiiey 
hiiil  ))liued  upon  it. 
Hftil,  no  ground  for  disturhing  thu  return. 
Li  Cain  V.  /loslirmnn  tt  al.,  W  N.  S.  ]).,  17H. 

.1.   Writ  or  Partition  —  The  common  law 

'viit  of  ]i:irtition  extends  to  joint  tenants  and 
tiiiaiits  in  common,  and  the  expression  ",.•  the 
iiniiiiiiiti  law"  in  cap.  l.SO,  sec.  1,  Rev,  .Statutes, 
rtluis  to  the  existing  state  of  the  law  in  this 
I'loviiice  hefore  the  passing  of  the  Rev.  Stats. 

Doam:  v.  MnKaiiiy,  James,  328.  \ 


PARTNERSHIP. 

1.  Account,  claim  for,  on  dissolution- 
Costs— Where  plaintiff  prayed  for  an  accoinit  on 
the  (ILssohition  of  co-partnership  between  him- 
self anil  defendant,  alleging  that  a  balance  wat 
line  him,  hut  the  Master's  report,  showing  a 
liirge  kdance  to  lie  due  to  defendant,  was  sus- 
tained, except  as  to  a  comparatively  small  item. 

Hi  Id,  that  the  defendant  was  not  entitled  to 
a  decree  with  costs,  as  the  plaintiff  had  succeeded 


in  uMtabliNhing  hiH  right  to  one  half  intcruHt  in  a 
mill,  which  was  dis|mted. 

iioda  V.  LiHIaiir,  R.  K.  D.,  "f*. 

'2.  Acknowledxmrntt  by  one  partner  after 

disMolution,  to  bar  Statute  'I'hu  acknowledg- 
ment, in  reference  to  a  debt  diu-  by  the  firm,  of 
one  ])artMer,  after  thu  partiu^rship  has  been 
disMidved,  is  sutlicient  to  prevent  the  ()i>c!'atioii 
of  the  Statute  of  Limitations. 

Haul:  of  X.  S.    v.  Ifiilihiirfnii, 

James,  850. 

3.    Action  for  half  IntercNt  In  horse  — 

Right  to  offset  expenses  paid  on  account  of 
horse— To  a  declaration  by  pluintilf  for  the 
price  of  one  half  interest  in  a  horse  alleged  ti> 
have  lu'ensold  by  ]daintitf  to  dcfendai't,  plaintiff 
retaining  the  other  half  interest,  defendant 
j)Ieaded  among  other  |>leas  a  set-off  for  tht^  keep 
and  cure  of  thu  horse  and  expenses  coiniected 
with  taking  the  horse  to  ami  from  Truro  while 
the  joint  ownership  lasted.  Thu  Judge  of  tlu> 
County  Court  ruled  that  defendant  could  not  off- 
set his  account,  as  that  would  be  offsetting  a 
partnershij)  matter  de)M'nding  u|H)n  an  adjiist- 
nieut  of  accounts  between  thupartius,  plaintiff's 
claim  being  for  jiro|)erty  brought  into  thu  [Kirt- 
nurshij). 

//'/(/,  that  the  rejection   of  the  set-off  wa» 
wrong,  and  that  the  jnd/,'nient  below  must  be 

reversed. 

Ml  Donald  v  Pomr,  .S  R.  &  C.,  :U(>. 


4.    Agreement  of  partnership  —  Right  to 

terminate— IMaintiff  and  dufundant  untered  into 
a  co-partnershii>  for  five  years  under  a  written 
agreement,  containing  a  provision  that  "  it  shall 
be  lawful  for  the  said  K.  H.  (the  defendant)  to 
terminate  the  same  at  the  end  of  the  first  year 
witlumt  any  notice,  if  the  business  shall  ii.t 
prove  satisfactory  to  him." 

Defendant  termiiuited  thu  co-partnership  at 
the  end  of  the  year  on  the  ground  of  the  business 
not  having  proveil  satisfactory  to  him,  where- 
uixui  plaintiff  brought  his  action  for  non-fultil- 
ment  of  the  agreement,  alleging  that  the  busines-s 
was  satisfactory.  The  jury  found  for  plaintiff, 
with  large  damages,  and  found,  in  answer  to  a 
<|uestion  put,  that  the  defendant  when  he  ter- 
minated the  co-partnership  was  not  dissatisfied 
with  the  business. 

Held,  that  the  agreement  gave  an  uncontrolled 
discretion  to  defendant,  and  that  the  verdict 
must  V>e  set  aside. 

Wilkins,  J.,  disKentimj. 

Whitehead  v.  Howard,  2  R.  &  C,  4:J2. 


•079 


PARTNERSHIP. 


f)sO 


i.    Drbt  due  by  partner  of  InHOlvcnt  flrni 

to  co-partner  can  tie  proved  at{ainitt  Nuparate 
eNtate  when  joint  debtfi  paid  I'mlcr  llic  liimil. 
vi'iit  Act  (if  I.SH,'\,  Hci'.  MO,  UK  under  tliu  cfirri'n- 
pniiilin^  pr<>\  JMKiiiH  (if  ilic  Kiiuii^li  Act,  ii  dclit 
due  liy  line  part ncc  ill  a  tirni  to  iiix  en  |i:irliiciM 
cm  pmpci'ly  In'  pnivcil  iij^uinxl  I  lie  i»e|>iinkte 
i'Niiitc  (if  the  dclitnr  UH  Hiiiiii  a-*  tlie  .j<iint  delilM 
of  tlic  purtnci'ithip  iiiivc  lieeii  di.icliai^'cil. 

MarknifoMh  v.  Alinnii  ,t  nl,  tl  K.  A  <i.,  41ts. 


6.    Debt  due  by  onr  partner  rannot  be 

■et  off'  againHt  debt  due  the  firm  A  He|iaratc 
delit  due  iiy  mic  incinlicr  nf  a  liini  in  Imm  iiiiliviil- 
ilal  capacity  cuiiiKit  lie  Hct  ntl'.  either  at  hiw,  nr 
in  eijiiity,  a);aiiiNt  a  joint  deht  due  tn  t!,e  tinii, 
iiiiU'sn  liy  ajjrecincnt  witli  all  the  ineiiilieiH 
thereof. 

i.oyiihj  V.  nidiriifi,  I  Old,,  »;»•.». 
1,  ExrIiiNlon   of  partner    Artlon   for 

Measure  of  damages  —  Where  three  partner!* 
filter  into  a  cmitract  tn  perfdini  a  certain  work, 
iiH  pai'tiierH,  and  two  of  ihein,  after  the  work  liaH 
lieeii  ooiiiuii'licvd,  exclude  the  third  from  all  par- 
ticipatiiin  in  it,  the  partm^r  hh  excluded  may 
8UHtain  an  action  agaiiml  thtun  for  such  exclu- 
iiion,  >\  hilu  the  W(irk  is  still  in  progress. 

'I'he  measure  nf  damages  in  such  case  will  he 
the  protits  that  might  reasonahly  lie  expected  to 
result  frnm  the  undertaking. 

(Irani  v.  Crt^lmnii  it  at,,  '2  Tlioin.,  37. 

8.    FlHhln;;  partnership -Construrtion  of 

— I'laintiff  and  defendant  entered  into  a  contract 
to  tisli,  each  in  a  distinct  lierth,  and  (uich  party 
tinding  his  own  seine,  lioat,  and  fishing  gear. 
The  evidence  was  conflicting  as  to  the  contem- 
plated duration  of  the  agreement,  liut  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,  but  it  was 
vague  and  contradictory  and  such  as  to  oblige 
the  t'ourt  to  construe  the  agreement  independ- 
ently of  any  alleged  usage.  Defendant  caught 
fourteen  barrels  of  mackerel  in  his  liertli  of  which 
he  gave  defendant  seven,  and  plaiutitF,  shortly 
fifter,  caught  ten  barrels  in  his  berth  of  which  he 
gave  defendant  five.  Plaintiff  then  abandoned 
his  berth  and  went  elsewhere  to  fish,  and  never 
returned  to  it.  Defendant,  in  his  Iterth,  caught 
two  hundred  and  fifty  barrels,  of  which  plaintiff 
claimed  half. 

Hi'ld,  that  the  plaintiff  was  not  entitled  to 
participate  in  the  defendant's  catch  of  fish. 

Fawaon  v.  Xoonaii,  R.  K.  D.,  377. 


0.     Mlnlnit  partnenthip     Plaintiff  and 

(lefelidalitH  entered  into  a  CO  iNtrtel'ship  to  Wnlk 
certain  mining  areas,  a  lease  being  taken  nut  in 
the  name  nf  the  defenilants,  but  for  the  U'lutii 
(if  idl  the  parties.  I'laintilV's  share  nf  tlu^  I'x- 
pelises  (if  Wdrking  the  mine,  as  they  bocaiiu- 
due  from  month  to  month,  wum  paid  by  the  di'- 
feiidant,  lienrge  tfainiltnli,  and,  only  a  sinilj 
pnrtinn  being  refunded,  the  latter  wrote  tn  pliun' 
tiff,  (hat  if  his  indebteilness  was  not  |iaii|  li\  ^ 
day  naiiieil,  he  Wdidd  consider  that  he  inteiiili'4 
to  withdraw  from  the  adventure,  Keo.'iviiig  ii>i 
reply,  htMifterwards  wrote  to  plaintiff,  eiicliHMi^' 
the  aiimunt  received  frnin  him  on  account  of  hii 
contributions,  to  which  plaintiff  replied,  accept- 
ting  the  money,  and  concluding,  "now  thai  I 
am  no  participator  with  you  in  tli(!  tribute,  Ivt 
your  mind  rest  (|uiet,  and  let  the  past  ri-i/iiiisin/ 
in  /nifi."  The  mine  having  subseiiuently  tiirncil 
nut  well,  plaintiff,  claiming  to  be  a  partiiei', 
lirniight  ai^tiiin  for  an  account,  I've,  wliicli  w;is 
dismissed  with  costs. 

Distinction  between  mining  and  ordinary  ti  id- 
iiig  partnership  as  to  iIi-Ih-Ihi  /k  rioiia-. 

Hamillim  v.  Ilami/loii  if  a/.,   H.  K.  I),,  7S. 

10.  MiMapproprlatlon  by  Arm  -  Award 

against  one  partner  for  whole  amount,  both 
having  shared  in  misappropriation— Dcfeiul- 

ant,  a  liarrister,  being  in  partnership  with  .1.  (!, 
T.,  the  tirni,  as  snlicitnrs  fnr  Mrs.  McS,,  cnllci't- 
ed  certain  large  sums  of  money,  whicli,  insti  iil 
of  paying  over  toiler,  they  a])propriated  to  tlu'ir 
own  use.  I'laintiff  having  brought  action  fur 
the  amount  the  matter  was  referred  to  arliifni- 
tinii,  and  an  award  made  in  her  favor  wliicli 
defendant  now  sought  to  set  aside  mainly  on 
the  grounii  that  the  award  was  unjust  and  in- 
correct, Ix.nause  defendant  was  held  lialilc  fur 
the  total  amount  received  by  the  firm  insteail  (if 
as  he  contended  only  foi'  the  amount  he  had  in- 
dividually misappropriated.  'I'here  were  ntlii-'r 
olijcctions  taken  by  defendant  to  the  award  nf  i 
t(?chnical  character.  One  of  these  was  that  the 
other  defendant  hart  not  signed  the  reference. 
He  had,  however,  attended  the  reference.  The 
other  objections  were  successfully  met  by  'itti- 
davits, 

//itlil,  that  the  award  should  be  sustained. 

McSireenty  v.  Wallare  H  al.,  2  N.  .S.  D.,  s;). 

11.  Note  made  by  member  of  firm  and 

indorsement  forged  by  him— Proceeds  aijpro- 
priated  to  partnership  purposes  —  Right  ot 
holder  to  rank  on  estate  of  firm  insolvent- 
(traham,  the  active  meml)er  of  the  insolvent  tirni, 
made  a  number  of  promissory  notes  in  the  tiini 
name  in  favor  of  one  Thomas  Fraser,  by  whom 


!».Hl 


PARTNERSHIP. 


982 


il'i'  iiutfH  |)ur|Hirti'<l  to  Ik)  iiiilnrNril,  liiit  the  in-  | 
ildi  -xriK'UlM  Mci't'  all  of  tli*'tii  fiir^i'il.     Tim  iintL'it 
VM'ii'  |ii'('Hi'iitfil  til  till)  I'likiiiiiiiitM,  uml  iic'gotiati.'il  . 
Iiy  <Miiliiitii  who  riiovivvil   tlif  iiiDiioy  on  tliuni, 
uml  ii  liiiXf  purt  of  till'  proc'i'i'iU  uiin  u|i|ii'ri]iriati-il 
I.I  |i.irtii('i'Nlii|)  |)iii'|>iMi'M. 

Il'lil,  that,  iiltlioiiKh  thf  Hank  toiihl  not 
<  l.uni  on  thf  notfit,  it  I'oiilil  tank  for  thu  uiuount 
I  if  tiiuin  aN  nionoy  paiil. 

Ill  ilii  Mnllirof  llraham  nml  AffKni/,  Iinoln  ul-<,  ' 

;<  K.  k  ('., 'J.'.!. 

\i,  Purlnrr  npitroprlalinx  lo  iihc  of  part> 

nerrihip  truHt  funds,  and  crediting  riHini  i/in 
/(•H«'  -Liability  of  co-partner     i'lainlltr,   the 

uiijiiw  of  CliiiM.  S.  .silver,  wuN  eiititleil  to  certain 
|ii'ii|ii.'rty  plaeeil  in  tniHt,  among  other  thhif^N,  for  | 
till'  |iaynient  of  reiitH,  etc.,  free  from  the  control 
i.f  iiii  huslianil,  and  not  iiutijecl  to  hix  delitn.  .She  ' 
(lireL'ted  her  truHtuoH  to  pay  over  to  her  huHlHind 
till'  iiH'onie  for  certain  yearn.  Her  hiiHliand  wan 
lit  tlial  time  in  partnership  with  \Vm.  (.',  Silver, 
tiirrying  on  a  liUNinen.s  in  Halifax  which  was  con- 
(liictcil  hy  Chax  .S.  Silvi^r  alone,  Wni.  ('.  Silver 
liaviiii;  withdrawn  from  the  management  of  it, 
iuid  t;iking  no  oversight  of  its  atl'airs.  When 
|)liiiiilifr  directed  the  money  to  lie  paid  to  her 
lui.sliaiid  she  knew  he  wan  in  einbarrauMt'd  cir- 
ciiMi>liinces,  and  he  had  then  and  long  before 
I'xiiiiiixted  his  ca))ital  and  become  indebted  ^i 
till-  tinn,  his  family  being  meanwhile  supporteil 
fiiiiii  tiie  funds  of  the  tirm.  In  those  circum- 
suuiics  he  had  ordered  the  money,  paid  over  to 
liiiii  liy  his  wife's  trustees,  to  be  paid  to  i  i-editors 
<i[  ijje  tirm,  and  opened  an  account  on  the  tirm 
li'Hiks,  charging  the  tirm  and  crediting  Mrs. 
.■Silver  with  the  money  .so  paid,  t'has.  ,S.  .Silver 
(lied  insolvent  in  I.S70,  when  Wni.  (".  .Silver 
tiist  became  aware  of  the  course  pursued  by  his 
i'ii])iirtner.  I'laintiH'  in  this  suit  claimed  from 
Will.  ('.  Silver  as  surviving  partner,  the  repay- 
iiioiit  of  the  money  so  leceived  by  the  tirm  and 
tieihted  to  her. 

Jfilil,  that  {'has.  S.  Silver  was  not  justified  in 
cieilitiiig  such  moneys  to  plaiiititf  without  her 
tiiiiciirrence  or  that  of  \Vm.  C.  Silver,  and  that 
tile  latter  was  not  liable. 

Si/rn-  v.  Si/rer,  R.  K.  1).,  160.  | 

I 

13.    Partnership   property  —  Execution 

against,  for  individual  debts— -I'laintiff  made  an 
mill  iigieement  with  (i.,  the  owner  of  a  gold 
tliiiin,  to  work  a  portion  of  the  claim,  plaintiff 
receiving  two-thirds  of  the  profits  after  paying 
(ill  expenses.  Defendant,  acting  as  Sheriff  of 
the  County  of  Hants,  levied  upon  and  sold  cer- 
tain gold  taken  out  of  the  mine  l)y  plaintiff,  on 
an  execution  against  O.    Plaintiff  having  brought 


trover  for  the  gold  »o  taken,  and  a  verdict  hav- 
ing panned  in  liif*  favor, 

Ili/il,  that  the  Sheriff  hIiouIiI  have  sold  only 
the  execution  debtor's  Mliiire,  leaving  the  pur- 
chaner  to  Mettle  with  the  plaintiff. 

Mi-l>onnlil  v.  (•■•/tint,  U  N.  M.  I).,  fi.M. 

14.    Payment  to  member  of  Arm  at  plare 

of  buHiness  Presumption  as  to  I'laintilt  and 
>lajor  cntereil  into  an  ugreement  disHolviiig  a 
business  co-partnerHhip  which  had  existed  be- 
tween them,  and  providing  tliat  each  party 
should  account  with  the  other  for,  and  pay  to 
him,  the  proceeds  of  any  co-partnership  goods  he 
might  have  sold,  and  the  amount  of  any  co- 
partnership delits  or  money  he  might  have 
received,  or  discharged,  or  given  receipts  for,  or 
offset  against  his  own  ])ersomil  debts,  but  which 
he  had  omitted  to  pay  into  the  co-jiartnership  or 
to  enter  in  its  books.  It  .mis  further  provided 
that  Major  should  convey  to  plaiutilf  all  his 
interest  in  the  co-partnership,  its  stock  and 
effects.  This  conveyance  was  made,  and  de- 
fendiiiit,  as  a  jiart  of  the  arrangement,  enttreil 
into  a  bond  to  plaintiff,  in  the  sum  of  i'HMi,  of 
which  the  condition  was  that  Major  should  make 
the  jiayinents,  and  )>crform  the  obligations,  etc., 
ill  the  agreement,  etc.,  provided.  It  having  been 
ascertained  that  ii  numlier  of  persons  who 
appeared  to  be  indebted  to  the  tirm,  had  paid 
the  debts  due  by  them  to  Majcn',  in  money, 
which  moneys  were  paid  to  him  in  the  place  of 
business  of  the  firm,  and  that  others  had  settled 
debts  due  the  firm,  i>y  offsetting  against  them, 
claims  against  Major  personally,  and  defendant 
having  been  called  upon,  under  his  bond,  for 
payment  of  these  amounts, 

//ilil,  that  to  the  extent  of  moneys  actually 
paid  to  Major  in  the  store  of  the  firm,  it  might 
fairly  be  j)re8umed  that  such  moneys  were  paid 
into  the  till,  ami  not  retained  and  applied  by 
Major  to  his  own  use,  and  that  for  such  moneys, 
a  jury  might  well  hesitate  to  make  defendant 
responsible. 

Ikdinlh  V.  Lordly,  1  N.  8.  D.,  72. 

13.   Ranking  on  Arm  and  private  estates 

— Claimants  held  the  joint  and  several  notes  of 

Ladd,  Porter  &  Co.  as  a  tirm,  and  of  each  of  the 

two 'partners  in   their  individual   capacity,    as 

security  for  a  debt  due  by  the  firm. 

Hdd,  on  appeal  from  the  County  Court,  that 

under  section  84,  of  the  Insolvent  Act  of  1  S7a, 

claimants  were  warranted  in  ranking  on  the  firm 

estate   and  also  on  the   private  estates  of   the 

co-partners. 

In  re  Ladd,  Porter  db  Co.,  Iimolvents, 

Hall  et  at.,  Claimants,  1  R.  &  G.,  32. 


983 


PAYMENT. 


984 


16.  Rights  or  partners  —  Limit  to  —  One 

partner  cniinot  enter  on  his  partner's  land  and 
remove  a  building,  though  tiiat  building  be 
merely  on  blocks  and  hiis  been  built  by  partner- 
ship funds  and  intended  for  a  store  to  carry  on 
the  partnership  Imsiness. 

McKenzie  v.  McKenzie, 

1  Thorn,,  (2nd  Ed.).  198. 

17.  Suit  by  a  partner  against  co-partner 

— On  a  dissolution  of  a  co-partnership  between 
defendant  and  plaintiff,  defendant  agreed  to 
assume  the  liabilities  of  the  firm.  Plaintiff  and 
defendant  were  sued  jointly  by  one  of  the  part- 
nership creditors.  Defendant  agreed  with  plain- 
tiff that  the  latter  should  pay  tlie  debt,  and  that 
he  would  repay  him  the  whole  amount.  Plaintiff 
paid  the  debt  and  sued  defendant  in  u.immpi<it. 

Hi  Id,  tliat  plaintiff  could  recover,  notwith- 
standing the  former  relation  of  partnership. 

Foyh  V.  BhKjham,  4  R.  &  (i.,  404. 

1$.    Wliat  constitutes  —  Tlic  defendants 

McL.  and  F.  entered  into  an  agreement  whereby 
F.  undertook  to  "  carry  on  and  engage  in  the 
business  of  an  auctioneer  and  commission  mer- 
chant in  the  city  of  Halifax,  commencing  said 
business  at  and  from  tiie  day  of 

and  to  continue  the  same  for  four  years, 
to  conduct  it  in  such  a  manner  to  the  best  of  his 
ability,  as  to  make  it  remunerative,  and  to  pay 
over  to  the  said  McL.  one-half  of  the  net  profits 
made  upon  all  transnotions."  It  was  further 
stipulated  that  if  at  any  time  during  said  term 
tlie  said  McL.  should  become  dissatisfied  with 
said  business,  he  might  demand  that  the  said  F. 
should  wind  up  and  bring  the  same  to  a  termina- 
tion ;  that  stock  should  be  taken  and  the  books 
and  accounts  submitted  to  the  said  McL.  when- 
ever re(inired  by  him.  In  consideration  of  this 
the  said  McL.  agreed  to  advance  the  sum  of  !?500 
to  be  wholly  put  into  and  invested  in  the  said 
trade  or  business."  Likewise  "  to  procure  to  be 
discounted  for  the  said  F.  different  notes  of  hand 
at  different  times,  being  at  such  times  as  the 
said  F.  may  require  in  sums  not  to  exceed  .§2000. " 
A  further  advance  of  §40  per  month  was  to  be 
made  by  McL.  to  be  expended  in  paying  for 
the  services  of  a  man  to  assist  in  carrying  on 
said  business. 

It  was  furtlier  stipulated  that  the  said  F.  was 
to  carry  on  said  business  "in  his  own  name 
alone,  and  not  to  connect  with  it  or  use  in  any 
way  whatever  the  name  of  the  said  McL.  either 
in  general  business  or  in  any  transactions  con- 
nected therewith,"  and  further,  "  that  the  said 
agreement  is  not  to  be  in  the  nature  of  a  part- 
nership nor  for  any  other  purposes  or  acts  than 


those  specified  and  set  forth.  Nor  is  eitiicr 
party  to  be  responsible  for  the  debts  contractyd 
by  the  other  in  a  business  or  private  capacity.' 
Hdd,  that  the  relationship  thus  established 
between  McL.  and  F.  was  not  that  of  partners 
nor  of  principal  and  agent,  and  that  McL.  was 
not  liable  for  goods  purchased  by  F.  in  iiis 
capacity  of  auctioneer  and  commission  merchiint. 
Darlinu  v.  Mt-Ldtand  tl  a/.,  2  R.  &  C,  l(i4. 

19.  Wliat  constitutes  —  A  communion  of 

the  profit  and  loss  of  a  business  between  two 
parties  constitutes  a  partnership  between  lliem 
as  to  that  business. 

Jiaiik  of  Nova  Scotia  v.  Halihnrloit, 

James,  .S.')0. 

20.  Wliat  constitutes— To  make  a  part- 
nership it  is  not  necessary  that  all  the  partntis 

'  should   contribute  money,   or  in  eijual  prupDi'- 

j  tions.     It  is  sufficient  if  they  contribute  wlmt 

is  e(|uivalent  to  money.     Nor  is  it  required  tliiit 

all   the   partners   should   share  ecjually   in  the 

profits  and  loss. 

j      Where  one  party  found  the  trading  license  and 
allowed  the  use  of  ids  name,  the  other  the  ciugn, 
and  the  profits  were  to  be  ecjually  divided,  but 
the  former  was  not  to  share  the  losses, 
HM,  a  partnership. 

The  Herkimer,  Stewart,  17. 


PART  OWNERS- 
See  SHIPPING. 


PARTY  WALLS 
See  FENCES. 


PASSENGER- 
See  CARRIERS-NEGLIGENCE. 


PAIJPER- 
See  POOR  LAW. 


PAYMENT. 
1.  Appropriation  of  payments— A  creditor 

has  a  reasonable  time  to  decide  to  the  credit  of 


9S5 


PEACE  OFFICER. 


98G 


Nvliicli  of  two  accounts  lie  will  place  a  sum  of ! 
money  that  has  been  paid  to  him,  without 
iipplifftlion  of  it  by  his  debtor.  An  instant 
(luuision  is  not  retjuired ;  and  where  neither 
iiiirty  has  made  an  appropriation,  the  Court  may 
exercise  the  power  to  do  so. 

MvKenzie  v.  Uonloii,  1  N.  S.  1).,  loS. 

'2.    Bond  for  snle  of  land  —  Failure  to 

complete  purchase  —  Agreement  to  apply 
money  paid  on  account  of  purchase  to  rent- 
Recovery  back  of  money  paid  on  purchase  in 
excess  of  rent— Defendant  entered  into  a  l)oud 
to  iiliviiitirt' under  seal,  in  which  it  was  recited 
thill  plaintiff  had  agreed  to  purchase  from ; 
defeiiilaut  a  tract  of  land  for  .*1,'2(K>  with 
iiiteiest,  as  follows  :  One  year's  interest  to  l)e 
[iiiil  in  one  year  from  date  of  bond  ;  one  year's 
iiiitiest  in  two  years  ;  and  one  year's  interest, 
tiigcther  with  the  principal,  in  three  years.  It 
«:is  further  specified  that  if  default  slumld  lie 
iii;iile  in  the  payment  of  the  princii)al  or  interest 
it<  iigieed  upon,  plaintiff  should  become  a  tenant 
t(i  ilefeiidant  at  an  annual  rent  of  .'*7-,  and  that 
all  ]i;iynients  made  by  plahititfs,  or  upon  certain 
siiecified  notes  of  hand  indorsed  by  way  i>i 
SfLiuily  for  the  jjurchasc  money,  should  be 
ii|iiilied  to  the  interest  or  rent  as  the  case  might 
lie.  Another  part  of  the  agreement  stated  that 
wlKilever  sums  were  applieil,  as  aforesaid,  the 
reiMiuiider  should  be  applied  to  reducing  the 
liiiiicipal  sum.  And,  further,  that  in  the  event 
(if  jilaintitf  failing  to  pay  as  aforesaid,  and 
smrundering  up  the  premises  at  the  end  of  the 
tlueu  years,  all  payments  made  in  that  case 
heiiLg  applied  towards  rent  at  the  rate  aforesaid, 
tlie  said  note  and  the  said  indorsed  note  shall  be 
t'iven  by  the  said  defendant,  &c. 

//(/(/,  that  the  ])laintift'  was  entitled  to 
recover  the  amount  that  he  had  paid  defendant 
over  and  above  the  amount  apjjropriated  towards 
tlie  rent  for  the  period  for  which  he  (jceupicil. 

Holmtn  V.  JJnrisoii,  3  R.  &  <!.,  (il. 

3.    Payment,  after  notice  by  party  In 

whose  hands  money  attached  —  Liability  to 
pay  party  attaching — The  defendant's  bar(|ue 
viuiglit  fire,  and  was  scuttled  and  sunk  in  Halifa.x 
liuiljor.  She  was  raised  by  the  Columbia  Coast 
Wrecking  Company  and  sold  to  one  (!.  Wilson, 
at  pulilic  auction,  on  l)ecend)er  22nd,  1865,  for 
tlie  sum  of  ii6'>2  10s.,  he  paying  a  deposit  of  £56, 
Mill  letaining  the  balance.  On  the  16th  January, 
IStiU,  Wilson  received  a  bill  of  sale  of  the  barque, 
hut  did  not  register  it  until  the  25th  of  May. 
On  the  14th  of  March,  previous,  the  plaintiff 
cnninienced  proceedings  against  defendant  as  an 
aljscnt  or  absconding  debtor,  under  which  the 


barijue  was  attached,  and,  on  the  lOth  of  the 
same  month,  Wilson  was  served  with  a  sum- 
mons, as  defendant's  agent,  in  tn'der  to  bind  the 
balance  still  remaining  in  his  hands.  8ub.se- 
(juently  to  the  service  upon  him  of  thesunnmins, 
Wilson,  out  of  the  funds  in  his  hands,  paid  to 
the  agents  of  tlie  Wrecking  Company  the  sum 
of  5<83;1.67,  for  their  demand  for  salvage  services. 
Hild,  iii/i  r  alia,  that  having  done  so  with 
notice  of  phiintifl''s  interest  in  the  fund,  and 
without  enabling  him  to  contest  the  Company's 
claim,  in  whole  or  in  jiart,  he  must  be  regarded 
as  having  made  the  jiaynient  of  his  own  wrong, 
and  that  plaintiff's  right  to  the  fund  could  not 
be  jirejudiced  thereby. 

Oxiuj  V.  Sjiisartnilir,  1  N.  S.  I).,  144. 

4.  Payment  by  mistake —Reeovery  of  — 

Sec  MONEY  COUJiTS. 

5.  Payment  Into  Court,  no  admission  of 

liabilty  beyond  the  amount  paid  in  — 

Iki'ird  V.  Aiiilirsoii  it  at.,  .'{  N.  S.  \).,  18I. 

0.    Payment  to  member  of  lirm  at  iilaee 

of  business — I'resumption  as  to — 

St  PABTXERSHIP. 

7.  Payment  to  talie  ease  out  of  Statutes 

of  Limitation- 
s'. LIMITATIONS  OF  ACTIONS  AND  SlITS. 

8.  Priority  of  payments  -Equitable  doe- 

trine — The  note  sued  on,  with  others,  was  given 
to  M.,  to  assist  him  in  his  business  in  Halifax, 
and  was  indorsed  by  him  in  blank  and  given  to 
the  plaintift's,  not  for  discount,  but  to  be  held  by 
them  as  security  for  advances.  Accounts  were 
put  in  showing  advances  amounting  to  ^95,<K)0, 
and  resulting  in  a  bahince  of  618,(KX)  due  by  M. 
to  the  plaintiffs.  The  notes  were  not  mentioned 
in  the  accounts  at  all. 

Hdd,  tliat  the  eijuitalde  doctrine  as  to  priority 
of  payments  did  not  ajiply  so  as  to  discharge  the 
notes  as  elder  obligations. 

Mnrhauts  Bank  v.  S/irlliii/,  1  H.  &  O.,  4;W. 


PEACE  OFFICER. 

"Peace  olUcer  In  due  execution  of  his 

duty,"  in  Dom.  Acts  1869,  c.  20,  s.  39,  held  to 
include  constable  serving  civil  process— 

See  CONSTABLE,  3. 


9S7 


PENALTY. 


988 


PEDLAR- 
MOXEY  COUNTS,  6. 


PENALTY. 


balance  olaiinoil  to  be  tliie  hiin  under  the  con- 
tract. 

The  (lefeiiiliuit  puiil  1?1S4.'2."»  into  (\)uit  and 
cluinieil  to  set  off  .^i")  per  week  for  eight  weeks' 
(lehiy  in  eonipleting  the  eontniet. 

Tiie  leiirneil  Judge  below  found  the  ;*•_'.")  per 
week  mentioned  in  tlie  agreement  to  be  lic|ui- 
dated  damages,  but  held  that  the  «ork  was  sub- 
stantially done  at  the  expiration  of  three  >ietk.s 


1.    Appeal  ft'om  conviction  for,  under 

Fisheries  Act— An  ai)i)eal  lies  to  tiie  Suprejne  , 

Court  from  a  conviction  for  penalties  under  the  ;  from  the  date  mentione.l  in  the  agreement,  aii.l 

Dominion  Fisheries  Act,  18(iH,  cap.  (iO.  |  therefore  only  allowed  the  defendant  A2.-)   per 

(hum  V.   To<l<l,   1  R.  &  C,  (i'2.  i  week  for  three  weeks.     The  defendant  appeiikd 

from  that  part  of  the  judgment  apportioning  tiie 

i.     Keeping  disorderly  house— By  whom  |  damages.     On  ai)pea1 'o  a  Divisional  Court  the 

penalty    recoverable  —  //'/'/,    that    nntler   tiie    jmlgment   of   the   lower   Court  was  sustained. 

Acts  of  188'_',  chapter  '2'*,  section  D),  the  penalty    Defendant  appealed  to  Full  Court. 


imposed  for  violation   of   the  City  Charter  by 
keeping  a  disorderly  bouse,  was  clearly  recover- 


Held,  that  ilefendant  was  entitled   to  oHk't 
the  ?'2.'>  per  week  for  the  full  period  of  eight 


able  in  the  name  of  the  City  of  Halifax  before  j  weeks,  it  appearing  from  the  evidence  that  ccr- 
the  Stipendiary  Magistrate.  :  tain    portions  of  the   repairs  were   incomplete 

City  of  Halifax  v.  Brown,  6  R.  k  (}.,  10.3  ;    until  the  expiration  of   timt  period.     The  fiut 

0  C.  L.  T.,  144.    tbat  the  defendant  moved  into  the  house,  before 
'  the  repairs  were  complete,  was  not  a  waiver  nf 

3.   Penal  Statute  -  Construction   of  -  ;  ,,j^  ^j  ,,^  ^^  ^j^^i,,^  f^„.  ^,,^  f^n  p^,i„,i  ,,,„,i„j. 

Plaintiff  supplied  defendant  with  merchandise,  i  ^^.j^.^,^  ^,^^  ^^^^^^.^.^  remained  incomplete, 
and  among  other  things,  with  intoxicatnig  liquors  [     j„,,g„,g„t  ,y„g  ordered  to  be  entered  for  tiie 
in  <iuantities  of  less  than  one  gallon  delivered  at  |  ,,gfe„,,j^„i  f„^  ,^11  the  ccsts,  including  those  in 
one  and  tiie  same  time.    Defendant,  on  the  other  I  ^j^^  ^.^^^.^  1)elow. 


hand,  supplied  plaintiff  with  articles  which  were 
placed  to  his  credit  in  plaintiff's  books  of  account. 
On  a  settlement  of  accounts,  plaintiff  struck  out 
of  his  ac(;ount  all  charges  for  liquors  supplied  as 
above  and,  with  defendant's  consent,  deducted  a 
like  amount  from  the  latter's  credits  by  way  of 
payment  for  tlic  li'iuor.  Defendant  having  given 
a  promissoiy  note  for  the  biilance. 


Horton  v.  ro/^iH, '20  N.  S.  R., 

(8R.  &0.),  169;  8C.  L.  T.,  377. 


5.    Penalty  by  contract  —  Plaintiff  was 

sub-contractor  to  defendant,  wlio  was  engiit'ctl 

in  the  erection  of  a  large  building.  Defendant 
//'/(/,  that  the  note  so  given  was  not  void  was  under  agreement  with  the  owner  of  tiie 
under  Revised  Statutes  (.Srd  .Series),  cliapter  building  to  have  it  finished  within  a  certain  time 
19,  being  neither  for  nor  to  secure  intoxicating  or  to  pay  a  penalty  for  each  week  thereafter,  ami 
liquors  in  any  (juantity  as  forbidden  by  the  when  contracting  with  plaintiff,  it  \\as  agreed 
.Statute.  The  Statute  being  lesliictive  of  the  upon  l)etween  tiiem  that,  if  the  penalty  slioiild 
common  law  and  of  a  penal  character  must  re-  ,  be  incurred  through  the  dilatoriness  of  tlie  plain- 
ceive  a  restrictive  construction  and  on  no  account  tiff,  the  amount  of  the  penalty  shoultl  lie  dediie- 
sliould  be  construed  to  mean  anytiiing  other  than  ted  from  the  sum  to  be  paid  by  defendant  to 
the    plain  onlinary  meaning    the    words  would    plaintiff  under  the  subcontract.      The  coiniile- 

tion  of  the  building  was  ilelayed  for  scvtriil 
M<:Ka<:hi,n,  3  N.  S.  D.,  3.")  k  "279.  j  weeks,  and  the  defendant,  alleging  that  this  was 

the  fault  of  tlie  plaintiff,  withheld  the  anioniit 


convey. 

,S';/i'V/^  v. 


4.  Penalty  by  contract -'building  con- 
tract, &c.— IJy  a  written  agreement  between 
plaintiff  and  defendant,  plaintiff  i  greed  to  repair 
a  buililing  owned  by  defendant,  the  work  to  be 
completed  by  a  certain  day  under  a  penalty  of 
§'2.">  per  week  for  every  week  that  the  Iniilding 
remainc'l  untinisbed  after  that  date,  said  §'25 
per  week  to  be  settled  and  stijuilated  damages 
for  delay.  The  contract  was  not  completed  at 
the  date  specified,  nor  for  some  time  after.  The 
plaintiff  sued  the  defendant  for  .*384.'2r>,  the  fuIJ 


of  the  penalty  when  settling  up  with  him,  uni, 
upon  being  sued  tlierefor,  pleaded  that  fact,  to 
which  plaintiff  replied  that  the  'elay  was  not 
caused  by  his  dih-toriness,  but  by  defeiulant  re- 
•luiring  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. 

Htld,  that  the  verdict  should  not  be  disturbed. 
Scotl  V.  Hrniitou,  .3  N.  S.  D.,  405. 


998 


PLEADING. 


yoG* 


6.   Penalty  for  taking  usurious  interrst 

-I'hiiiitit!',  with  liis  liiotlier,  tliu  Hi'V.  (i.  V., 
cMitretl  into  a  promissory  note  Nov.  .SOtli,  18(i7, 
liy  wliicii  tliey  agreed  to  jiay  to  the  order  of  1). 
,\;  Co.,  the  defendants,  .'?1,4CI0,  with  interest,  in 
(UK'  year  after  date.  Wiien  the  note  fell  due, 
iiiti-rest  at  the  rate  of  six  per  cent,  was  paid 
ii|i(in  it,  and  the  note  was  allowed  to  lie  over. 
(Ill  Dec.  .Srd,  IStift,  plaintiff  paid  another  year's 
iiitiiest,  with  two  per  cent,  additional,  which 
(lefi'iidaiits  demanded  for  extending  the  time. 

Ih/(l,  that  the  additional  charge  so  made  was 
within  the  prohibition  against  taking  more  tiiun 
legal  interest,  contained  in  chapter  H"_',  Revised 
Statutes  ('2nd  series),  and  that  defemlants  were 
liidile  to  the  penalties  therein  imjiosed. 

I'athrson  v.  Dvffax  t(  a!.,  3  N.  .S.  I).,  52. 

1,   Power  of  Provincial  Lei^islature  to 

prescribe  penalties  for  retail  of  intoxicating 
litiuors  by  unlicensed  vendors — 

V '  BRITISH  NORTH  AMERICA  ACT,  8. 

8.  Recovery  of,  before  Justices  of  the 
Peace— 

Ste  JUSTICES  OF  THE  PEACE. 


and  transferred  from  place  to  place,"  but  "does 
not  include  choses  in  action,  notes  of  hand, 
bonds,  and  securities  for  money  loaned  or  due 
which  may  be  realized  by  action  or  suit  or 
othi:  .,se. " 
/«  re  The  Bank  of  Yarmouth,  2  X.  S.  D.,  308,. 


PEW  HOLOER- 

Interference  witli  riglits  of— 

Stc  ASSAl'lT,  4. 


PILOTAliE- 


*Vt  SUIPPINe. 


9. 

of- 


Revenuc  Laws,  penalties  for  violation 


PERFORMANCE. 
Of  contracts— 


PIRATES. 
Practice  of  Admiralty  Court  as  to  property 

taken  by — It  is  the  ordinary  practice  of  the 
i  Court  of  Admiralty  to  direct  property  taken  by 
!  pirates  to  be  returned  to  the  owners  without 

delay,  ai;d,  except  where  there  is  a  strong 
fite  REVENUE.  '  '"^'^essity  requiring  it,  without  requiring  bail 
I  for   latent   claims,  taking  care   to   protect   the 

riglits  of  the  salvors,  and  the  droits  of  Admiralty. 

Qtieen  v.  The  Chtmjuakt  and  Canjo,  1  Old.,  797.. 


See  CONTRACT. 

2.  Allegations  of,  in  pleadings— 

sv  PLEADING. 

3.  Speeillc- 

Su:  SPECIFIC  PERFORMANCE. 


PERJURY- 
Ste  CRIMINAL  LAW,  14. 


PERPETU.ITING  TESTIMONY 
>:tc  EVIDENCE. 


PLANT. 
"Plant,"  when  used  in  reference  to  a 

manufactory  was  pioliably  applied  in  the  first 
ins-tance  only  to  such  apparatus  or  machinery  as 
wa.s  artixcd  to  the  pieiiiise.s,  but  a  more  extended 
nieuniiig  seems  now  to  be  given  to  the  word,  and 
the  plant  i>f  a  manufactory  embraces  all  the 
apparatus  or  machinery,  whether  fixtures  or 
olluTwise,  liy  mcaii.s  of  which  the  business  is 
carried  on. 

//(  /•(  Moiiiijoiimy,  K.  E.  1).,  154. 


PLEADING. 


PERSONAL  CHATTELS. 


1.    Action  to  recover  amount  claimed  for 

professional    services  —  Special    agreement — 
Drflnition    of  -  The    phrase    "personal    Delivery   of  bill    not    necessary— Pleading — 

tliiittels ''  means  "<inly  such  things  as  animals.  Practice — In  an  action  brouglit  by  plaintiS's  to 
Imusehold  stuff,  money,  jewels  corn,  garments,  recover  an  amount  claimed  to  be  ilue  for  profes- 
aiiil  fveiytliing  else  that  can  be  put  in  motion  ,  sional  services  as  solicitors  for  the  defendant^ 


991 


PLEADING. 


902 


the  jury  found  that  the  defendant  diil  not  ci.n-  5.    AHHlgnce  brillKin};  action  In  name  of 

tract  witli  the  plaintiH's  \>y  retaining  tlieiii   to  assignor- Assignment  pleaded— Replication - 

exuciite  professional  business  for  him  us  alleged.  J'tr  'I'lionipson,  .).— Where  an  action  is  lnouglu 

It  apjHiared  clearly  from  the  evidence  that  in  by  an  assignee  in  the  name  of  the  assignor,  and 

two   cases  tlie  plaintiH's  liad  liecii   so   retained,  the  assignment  is  pleaded,  a  replication  is  go<iil 

iind  in  a  tiiird  case  the  relair,er  was  admitted,  setting   up   that   the  action  is  l)r()ugnt  l)y  the 

but  defendant  swore  tluit  at  the  time  his  aH'airs  assignee. 

were  in  the  hands  of  C,  his  a.ssignee,  and  that  llnimiy  <7  al.  v.  C'iiiiniti<iham,ii  K.  &  (i.,  'A')'; 

he  said  to  ,S.,  one  of  the  jdaintitls,  "  I  am  not  (J  (.'.  L.  '1'.,  41H». 
acting  personally,  nor  am  I  going  to  pay  any 

money   personally,    but    it    must    come    by  and  «.     AVOWF}    Or   fOKnizanfC  —  Not   a   picu 

through  the  assignee  and  inspector  and  out  of  within  8.   243,   P.  A.— When   the   i)lainlitl'  in 

the  funds  in  their  haml.-i,"  and,  further,  "  I  told  replevin  proceeds  to  trial  without  pleading  to 

hiui  distinctly  tliat   no  jiersonal  oliligation  was  the  avowry  or  cognizance  of  defendant,  it  is  ii 

to  attach  to  me.  '                                                        I  niistrial,  an  avowry  or  cognizance  not  being  a 

Jllil,  that  tile  denial  of  the  retainer  was  not  jdua  witiiin  the  meaning  of  section  'J4.S  of  tiie 

.•sustained    by    proof    of    the    sjjecial   agreement  Practice  Act. 


ivlk'gcd. 

-•t/>o,  tliat  the  sjjccial  agreement  should  have 
been  pleaded,  au<l  threw  the  burden  on  defen- 


SL-iiiiur  V.  Clarb:  t/  al,,  \i  'riioni.,  jv.l 


7.    Bill   or  I'xclianv;!'  —  Stamping  aricr 


daut  of  proving  atlirniatively,  not  only  the  acceptance  and  indorsement— Replication - 
.source  from  whicii  the  funds  to  pay  plaintitis  IMendant  pleaded  asa  set-oflto  plaintitl'scbiin 
Merc  to  come,   but  also  that  such  funds  had  not    ,^  ,,in  „f  exchange  accepted  by  i)lainlitV  and  in 


conic  into  defendant's  hands. 

Ritchie,  •).,  ili-^.-tniliiiii. 

Under  the  practice  in  this  Province,  the  de- 
livery of  a  bill  of  costs  as  rc(|uired  by  3  dames, 
1,  cliapter  7,  is  not  necessary,  costs  being  recov- 
erable as  any  other  delit. 

SidijKwirlc  (t  al.  V.  Fairliankx,  7  K.  it  (i.,  .S99  ; 

7  (".  L.  '1'.,  435. 

ti.    Admission  —  The  admission   on   tlir 

records  that  ])aities  are  alive  precludes  the 
presumption  of  fiieir  death  arising  from  con- 
tinued absence. 


dorsed  to  him.  I'laintill'  replied  that  tlie  liill  at 
the  time  of  its  acceptance  and  indor.seiiiciil  was 
not  stamped  according  to  law.  Defendant 
demurred. 

Htlil,  that  the  replication  was  good,  and  tliat 
if  the  stamps  were  altixed  after  the  acceptance 
or  indorsement,  it  was  for  defendant  to  njnin 
the  facts  which  justified  him  in  sul>sei|iKiitlv 
atHxing  them. 

BulUr  d  al.  v.  Emus,  ;{  N.  .s.  D.,  171. 


8.    Bond— Oerencc  to  action  on— neiinir- 

DoaiK  V.  MtKi  nuy,  James,  .'{28.    rer  —To  a  declaration  on  a  bond  to  Her  Majujiy, 

conditioned  for  the  performance  by  one  of  tlit 
defendants  of  tiie  duties  of  Collector  of  i^ito. 
and  the  iuunediate  payment  over  to  the  (iiiiuty 
Treasurer  of  such  rates  whenever  the  siiiiis  iv- 
ceived  amounted  to  8HH),  defendants  jilciuli'd, 
on  e(|uitalile  grounds,  that  while  tiie  .said  fnl- 
lector  was  travelling  on  the  t^tiieeu's  highway 
with  the  sum  of  i^.XSti  lawfully  in  his  ])os.sessioM 
for  tlie  i)urpo.se  of  paying  it  over  to  tiie  Cniiiity 
Treasurer,  he  was,  witiiout  any  fault  or  want  nf 


3.    Answer  In  equitable  suit— The  defen* 

•lant  in  an  eijuitalde  suit  will  not  be  compelled 
to  answer  under  oath  on  the  ordinary  writ. 

Mi:l'hii'  V.  Qirmaii,  ■JTliom.,  S. 


4.   Arrest-Action  for -Malice- Plaintlf.s 

declaration  alleged  that  the  defendant  had  fraud- 
ulently represented  to  B.  H.  &  Co.  that  plaintiff' 
was  about  to  leave  the  Province,  and  that  there 
was  reason  to  fear  that  B,  B.  &  Co.  would  lose 


a  debt  due  tliem  jointly  by  plaintitt'and  defend-  :  'l'l'g«'^'«''.  f"i'oil'ly  and  feloniously  robbed  of  «ii. I 


ant  unless  the  now  plaintiti'  were  arrested. 
Whereupon  B.  B.  &  Co.  caused  ])laiiititi'  to  be 
iirrested,  Ac.  The  declaration  contained  no 
allegation  that  defendant  had  maliciously  insti- 
gated B.  B.  &  Co.   to  arrest  plaintiff,  or  that 


sum. 


Hdd,  on  demurrer,  that  the  plea  was  good. 
(Jtiitn  V.  Camtron  it  al.,  3  K.  &  I'.,  •''•'' 

9.    Breach  of  promise  of  marriaso 


they  had  no  reasonable  cause  for  so  arresting    Evidence  of  seduction  may  be  given  although 
him,  or  that  defendant  knew  that  there  was  no  ;  seduction  not  alleged— 5th  R.  S.,  c.  104,  0.. 


reasonable  cause. 

Hihl,  that  the  declaration  disclose<l  no  cause 

of  action. 

Phdan  v.  Ktlly,  2  N.  S.  1).,  529. 


I  XIX.,  R.  4.— Construction  of — Milliiiiiidii  v. 
Lor'nii),  G  Q.  B.  1).,  19<»,  which  is  authority  fm 
the  proposition  that  evidence  of  seduction  can 
not  be  given  in  an  action  of  breach  of  pioniist' 


993 


PLEADING. 


99+ 


(ifniiirriage  unless  the  seduction  is  alleged  in  tlie  //-A/,  tlmt  these  pleas  were  l)ad  under  aecs. 

stiittiiiont  of  claim,  was  decided  upon  the  follow-  I")!  and  1;VJ  of  the  Practice  Act,  as  they  did  not 

iiig  rule:    "  Kvory   pleading   sluill  contain,  as  allege    or  show  that  the  policy  contained  cuv 

(oiiuiscly  as  may  he,  a  statement  of  the  nuvterial  conditions  re(iuiring  the  action   t<.  !,c  Drought 

fiuits  on  which  the  party  pleading   relies,  l.ut  within  six  mcmths,  or  enabling  the  company  t.. 

not  thccvidence  l>y  which  they  are  to  he  proved."  terminate  the  insurance  by  notice  ;  and  that  the 

This  rule  has  since  heen  amended  by  inserting  objections  to  the  pleas  were  not  such  as  could  be 

the  wonls,  "  for  his  claim  or  defence  as  the  case  obviated  by  amending  them  under  section  Il.'4. 

iri;iy   be,"   between    the   words   "relies"    and  Caldwdl  v.  Stculacona  Fire  I- Life  Im.  Co., 


"Imt."    nth  R.  S.,  c.  104,  O.  XIX.   U.   4  con- 
tiiiiis  the  rule  in  its  amended  form. 

/'■»•  Ritchie,  .),,  delivering  the  judgment  of 
\\w  Court,  the  amendment  materially  alters 
the  rule,  in  my  opinion  contining  the  facts  re- 
i|uinil  to  be  stated  to  those  material  to  the 
o;iiise  of  action  or  defence,  and  it  would  not  now 
lie  necessary  to  plead  the  seduction,  which  is 
not  iiiateiial  in  that  view. 
Kmh-'i-  V.   Wooil,  •J(l  N.  S.  Fi.,  (M  R.  &  (!.),  40. 

10.  Change  Of  venue— 


I  R.  *(i.,  'j.m 
13.   Confession,  but  Insufficient  avoidance 

—  When  the  defendant  puts  in  a  plea  containing 
a  confession  of  a  cause  of  action,  and  an  insufli- 
cient  reason  for  avoiding  it,  and  the  plaintiH" 
joins  issue  and  obtains  a  verdict  on  the  immate- 
rial issue,  the  Court  will  not  award  a  repleader, 
but  will  aUow  plaintitl'  to  enter  judgment  upon 
the  confession. 

Aftoruci/'O'eneral  v.  Paije,  "JTIiom.,  2Cf2. 


Stc  TRIAL. ! 
11.   Charter  party  —  Construction   of 


14.    Consideration— General  plea  of  want 

of — A  general  plea  of  no  consideration,  or  no 
Demurrer  to  declaration  for  freight— A  cliartcr  value,  not  stating  the  particular  facts  which 
IMity  contained  the  following  clause  :— "It  is  show  the  want  of  consideration,  is  good  in  this 
yireil  that  the  responsibility  of  the  charterer    Province. 

iTiises  as  soon  as   the   cargo  is  on  board,  the  I  Chipmaii  v.  Ritchie,  I  Old.,  710. 

vessel  holding  a  lien  on  the  cargo  for  freight  and  ' 

.leimiiTOgc."  PlaintifTs  sued  defendant  (tlie  15.  ConstructlOUOf plea-Equitablerepll- 
tlmiterci )  for  the  freight,  setting  out  in  tiieir ,  cation  —  Departure  -A  plea  though  in  the 
'leiliuiition  that  the  vessel  was  loaded  and  pro-  present  tense  refers  to  the  time  at  which  the 
cceilcd  to  sea  with  her  cargo,  and  delivered  the  writ  issued  and  nr)t  to  the  time  at  whicii  the 
w.ign,  Sec.     Defendant  demurred.  j  plea  is  pleaded. 

^tW,  that  the  deniurrcr  should  be  sustained,  j      Where  an  acticm  is  brought  on  a  foreign  judg- 

w  the  declaration  showed  that  defendant  was  ;  ment,  and  the  declaration  claims  the  wjuivalent 

""''"'''''^'  in  Xova  Scotia  currency  of  the  amount  of  the 

Cook  et-  al.  v.  McLtod,  .3  N.  S.  I).,  ,'}07.  ,  judgment  it  is  a  departure  to  claim  in  an  ecjiiit- 

j  able  replication  an  increased  amount,  on  account 

12.  Conditions  precedent  —  Averment  -  "f  tl'e  depreciation  of  the  currency  f)f  the  foreign 
Denial- General  issue— PlaintitF,  in  an  action  '  country,  e<iuivalent  to  the  change  in  the  value 
"11  a  policy  of  insurance,  referred  in  his  declara- ;  of  the  cuirency  since  the  cause  of  action  aro.se. 
ii"»  to  "  the  conditions  indorsed  on  the  policy,  lioml  I't  al.  v.  Ins,  2  Ohl.,  KiT. 

Mv\  which  constituted  tlie  basis  of  said  insur- ' 

■nice,"  but  he  only  .set  out  one  condition  referring        16.     COUnter-Clalm  bClOW  Jurlsdiction- 
t'l  notice  and  pri.of  of  loss,  alleging  that  it  was  '      Held,  that  defendant  couhl  not  recover  any 
'lit- only  condition  material  to  his  cause  of  action,  |  thing  on  a  counter-claim  pleaded  by  him,  except 
•111.,  lie  averred  general  performance  of  conditions. ;  money  paid  into  Court,  tlie  amount  being  below 
li«.femluut    pleaded   that    tiie    action   was   not  :  the  jurisdiction  of  the  Court. 


I'immeiiced  within  six  months  after  alleged  loss, 
wi'l  the  same  was  not  sustainable  under  the  said 
"■iiilitioiis  indorsed  on  said  policy  ;  and  by 
'""'lii-'l'  i>lea  tliat  by  sahl  policy  the  loss,  if  any, 
«  "  niiiile  payable  to  one  Anderson,  and  before 
'lif  alleged  loss  the  defendant  company,  by 
•>"iiLe  to  said  Anderson,  terminated  the  insur- 
■;»"«'.  luul  said  Anders.m  agreed  to  terminate  the 
'"I'liianoe  and  deliver  up  the  policy  to  l>e  can- 
fclleil. 


Per  McDonald,  C.  .1.,  diixenlituj.—A  counter- 
claim under  the  Judicature  Act  is  in  the  nature 
of  a  set -off,  and  the  plaintilT  having  admitted 
the  amount  to  the  extent  of  the  payment  into 
Court,  the  defendant  was  entitled  to  the  costs 
of  proving  his  claim,  although  the  amount  set 
up  was  below  the  jurisdiction  of  the  Court  had 
the  defendant  sued  for  it. 

Hur/haii  v.  McCoUnm,  20  N.  S.  R., 
(8R.  &0.),  202. 


095 


PLEADING. 


•I9G 


II.     Deceit     Not  necessary  in  action  of,  to  asi.le  the  (Icmuner  (m  the  fe'n.mi.l  that  .Ifiiniirtr 

allege  that  defendant  knew  the  repreaenta-  will  not  lie  in  summary  units. 

tion»  to  be  false  —  Declaration      Action  i»r  H<ld,  that  he  was   right  in  doing  ho;  uls.,, 

deceit  on  representations  of  defendant  with  re-  that  defendants  were  properly  refused  coMs,  on 

gard  to  the  sale  of  a  mining  property,  the  declu-  the  judgment  in  tlieir  favor  on  liie  denuimi ,  as 

ration   alleged   that    the   representations  were  they  had  contributed  to  tlie  error  t.y  pleiidiny, 

made  hv  defendant  falsely  and  fraudulently,  to  and  in  other  ways. 

in.luce  plaintiff  to  act  upon   them,  and  that,  Woodloi-k  v.  Dickie  U  at.,  (I  K.  .V  (i.,  -.'IKI; 

having  acted  upon  them,  the  plaintitl  had  there-  :  0  ( '.  L.  I .,  4.)'.'. 

'v;t::i  ii::;:;:i;l"  i;::r;,»  ,.„i.,„«„n ...  «.  »er.«ee,  .r..nd,  »r. ,,«,  demumw. 

.I-     .     1.1        I    ;.    li  1  ■„  1  ,.,.nf.iiii  iiiiv  alle-  —Costs  not  allowed,  for  irregularity --(.n.iiiiilx 
siiliicient,  altlKuigh  it  tlid  not  contain  anj  aut- 


gation  that  the  defendant  knew  the  representa- 
tions so  made  by  him  to  be  false. 

McKay  v.  CampMI,  '2  N.  S.  1>.,  475. 


of  defence  tiled  and  served  in  tiie  County  ('nun 
'  are  not  subjects  of  demurrer.  Where  tlie  n- 
t  spondent  succeeded  on  appeal,  but  there  appeanil 
I  to  have  been  some  irregularity  on  his  part  in  Uiu 
proceedings  below,  the  extent  and  importanctoi 
which  were  uncertain,  costs  were  not  allowwl. 
Mahon  v.  (iaminon,  4  K.  &  (i.,  l';i.'. 


18.    Declaration,  defect  In  —  Cured  by 

pleading  over— The  declaration  set  out  that 
the  ilefcndant  company  falsely  and  maliciously 

printed  and  published  of  the  plaintiff,  in  relation      ^^    Defence  Of  agreement  With  payee 

to  a  certain  office  held  by  him  as  Deputy  1  ro-  ,  ^^.^^^^^  ^^^^  .lefendant,  in  an  action  on  a  pnm.i. 
vincial  Secretary,  in  a  certain  newspaper,  <'^«m  I  „j,^,.  ^      j^y  indorsee  against  the  iiiiiker, 

and  ichich  mid  article  appeared  in  the  editorial       ,.  ;.,.  .i, „ ,„ 

columns  of  the  Mornimj  Hu-ald,  &c.,  and  was  as 
follows  (the  article  being  set  out  at  length) 


relies  on  an  agreement  with  the  payee  as  a  de- 
fence, the  plea  should  allege  that  the  note  was 
indorsed  after  it  became  due. 

Chi}nnan  v.  Ritchie,  1  Old.,  710, 


23.   Defences  under  Customs  and  Inland 

Revenue  Acts— Construction  5th  R.  S.,  c.  104, 
O.  XIX.,  R.  2,  and  O.XVIIL,  R.  21,  and  0.  XIL, 
R.  19— Unnecessary  prolixity— General  issue 
— To  an  action  brought  against  defendant,  an 
auctioneer  in  the  city  of  Halifax,  to  recover 
damages  for  the  alleged  wrongful  sale  of  a  horse, 
waggon  and  h'.niess,  seized  by  officers  of  the 


Held,  that  although  no  "article"  had  been 
mentioned  in  the  count  to  which  the  words 
"  which  said  article  "could  refer,  the  defect  was 
cured  by  pleading  over  and  particularly  by  jus- 
tifying the  publication. 

Croniikill  V.  The  Mornintj  Herald  Printiiuj 
dt  Publixhiwj  Co.,  4  R.  &  G.,  200. 

19.  Deflnmatlon  -  Special  declaration- 
Demurrer— Demurrer  to  two  counts  of  plaintiff's    .  ..^^ 

writ  in  an  action  of  slander,  the  innuen<lo  in  both  i  Inland  Revenue  while  being  used  for  the  purpose 
counts  being  that  the  plaintiff  had  been  guilty  of  1  of  removing  a  quantity  of  spirits  unlawfully 
wilful  and  corrupt  perjsry.  The  demurrer  was  1  manufactured  and  liable  to  excise  duties,  defeiiil- 
on  the  ground  that  the  words  were  not  action-  I  ant  pleaded  twenty  nine  grounds  of  defence 
able  on  themselves,  and  did  not  support  the  which  were  expanded  at  great  length, 
innuendo.  The  Judge  of  the  County  Court  for  District 

Hfld,  that  the  counts  were  good,  and  that  it    No.    1  liolding  that,   under  the  Customs  Act, 

wasfor'the  jury  to  say  whether  the  plaintiff  was    Acts  of    1885,   c.    VI,   s.   •-'•28,  and   tlic  Inlana 

warranted  in  putting  the  meaning  upon  them    Revenue  Act  of  1883,  c.  14,  s.  72,  the  defciulant 

get  o„t.  was  bound  to  plead  the  general  issue  and  give 

Fer'jw^on  v.  Inman,  2  N.  8.  D.,  135.  j  the  general  subject  matter  in  evidence,  and  tiiat 

I  the  defences  as  pleaded  were  unnecessarily  pin- 

20,  Defence,  grounds  of,  not  demurrable    Hx,   and   were  unnecessary  and   embarnissiiig, 
—  Costs— A  bond  was  given  as  security  for  costs  ,  made  an  order  directing  that  all  the  pleas  be 


on  an  appeal  to  the  County  Court  from  the 
Magistrate's  Court.  An  action  was  brought  on 
the  bond,  and  pleas  were  pleaded  as  to  a  declar- 
ation cause.  Plaintiff  demurred  to  the  pleas, 
and  defendant  joined  in  demurrer.  The  de- 
murrer book  showing  on  its  face  that  the  amount 
actually  in  dispute  was  under  S40,  the  County 
Court  Judge  treated  the  suit  as  a  summary  suit, 
and  the  pleas  as  grounds  of  defence,  and  set 


struck  out  with  the  excepti<m  of  the  4tli,  whidi 
denied  the  allegations  and  issues  in  the  piaiu' 
tiff's  statement  of  claim,  and  which  he  held  to 
be  equivalent  to  the  general  issue. 

Hdd,  that  the  order  must  be  set  aside  with 
costs. 

That  the  pleas,  though  expanded  at  great 
length,  were  not  necessarily,  on  that  account, 
embarrassing. 


91»7 


PLEADING. 


998 


That  uiHlcr  the  Judicature!  Rules,  unnecegKiiry    miilcl  finin   lkil.a<loeH  to  Trinidad,  and  tlicnue 

Ici.L'tli  in  ii  matter  whicli  can  \<v  oiri'ttiially  dealt    to  Sf.  Tiioiiian,  in  hearoli  of  a  market. 


with  on  taxation  of  costM,  as  provided  liy  Order 
XIX,  Ilulu'-'. 

I)()iil>tfid  whether  the  auctioneer  who  Bells 
yiKPils  seized  under  these  Acts  can  avail  himself 
(if  the  protection  the  Statute  gives  to  revenue 
('dicers. 

Not  Ixjund  to  plead  the  general  iKsue  even  if 


//'/'/,  tliat  the  plea  was  had  for  duplicity,  as 
diHclosing  sevend  distinct  acts  of  deviation. 

A  party  who  prefers  to  answer  a  jdea  to  w  hich 
he  might  have  demurred  for  argumentativenesM 
or  duplicity,  is  liound  to  answer  any  material 
allegation  contained  in  the  plea. 

I'Ica  in  answer  to  an  allegation  of  constructive 


licM  to  he  an  oflicer  entitled  to  the  protection  of    total  hi.ss  ami  ahandonment,  shewing  ii  deviation 

the  >tatutc.  hefore  al)andonment  and  a  re8umi)tion  l»y  ,,:.iin- 

It  is  a  privilege  which  the  ofJicer  may  or  may    tifl'  of  the  voyage  after  the  ahandonment,  and 


not  make  \isu  of. 


I  Ik 


also  of  the  control  of  tlie  property  and  its  sale 
riiat  Die  learned  Judge  was  wrong  in  holding  at  another  jx.rt  hefore  reaching  destination, 
ic  »th  ground  of  defence  to  be  equivalent  to  ■  }hld,  that  plaintitr  was  hound  either  to  dLmur 
the  general  issue,  as  it  was  not  so  pleaded  and  for  duplicity  or  to  answer  the  deviation  and 
(lid  not  comply  with  the  requirements  of  Order  the  suhsequent  resmnption  of  the  voyage,  and 
.Win.,  Rule  21,  and  would  have  been  a  viola- 1  also  the  sale  of  the  cargo  and  abandonment  of 
tioii  of  Order  XII.,  Rule  19.  the  voyage  at  St.  Thomas,  each  of  these  being 

That  some  of  the  pleas  struck  out  were  good    material  averments. 
,19  containing  distinct  denials  of  material  facts        I'lea  of  deviation  does  not  answer  a  partial 


set  (lut   in   plaintitTs  statement  of  claim   and  1  loss  occurring  previous  to  the  deviation.    Dechir- 
ess.'ntial  to  his  case.  |  ation,  alleging  a   partial    loss  iKjfore  going  to 

That  others  were  good  as  asserting  title  in  the    Harbadoes,  followed  by  a  subswiuent  total  loss 
(kfendant  and  in  Her  Majesty.      That  others   after  arrival  there.     (Jeneral  plea  of  deviation, 
were  good  as  justifying  defendant's  action  under 
the  provisions  of  the  Inland  Revenue  and  the 
Customs  Acts,  all   the  defences  being  such  as 
defendant  was  clearly  entitled  to  make  use  of. 

S'liihk,  'chat  the  Judge  of  the  County  Court 
migiii  have  directed  the  substitution  of  a  state- 
ment in  a  sununary  form  of  the  material  facts 


Held,  that  the  plea  should  have  stated  that 
the  deviation  took  place  before  any  loss  occurred. 

(Jeneral  plea  of  deviation  in  answer  to  a  count 
stating  that  vessel  went  to  Barbadoes  as  a  port 
of  necessity,  where  there  was  a  constructive  total 
loss  and  abandoumeni;,  must  aver  that  the  devi- 
ation took  place  before  any  loss  occurred,  or 


ortimtthe  parties  prepare  issues  or  have  them   otherwise  must  controvt      *he  alleged  necessity 


settled  by  the  Judge. 

McDonald  v.  Clark,,  i>0  N.  S.  R., 

(SR.  it  (i.),  254. 

24.  Demurrer— Wbere  the  demurrer  Is  to 

the  whole  writ,  if  there  is  any  part  of  it  which 
entitles  the  plaintiff  to  relief,  the  demurrer  must 
be  overruled. 

Eaton  v.  IVtatherbe,  R.  E.  D.,  48. 

25.  Demurrer  —  Where  part  only  of  a 

declaration  is  bad,  the  demurrer  should  be  to 
thiit  part  and  not  to  the  whole  <leclaration  ;  and 
if  in  such  case  the  defendant  demur  to  the  whole 
declaration,  the  Court  will  give  judgment  on  the 
demurrer  for  the  plaintiff. 

Tohin  V.  Symondsetal.,  2  Old.,  141. 

26.  Demurrer  —  Answering  demurrable 

plea-Plea  of  deviation— Plea  not  a  denial- 
Action  oil  policy  of  insurance  covering  voyage 
from  Halifax  to  Pernambuco,  ami  a  market. 
^'cssel  put  into  Barbadoes,  as  plaintiff  alleged 
to  repair  damages.  Plea  of  deviation  ;  that 
vessel  put  into  Barbadoes  not  for  the  purpose 
alleged,  but  to  seek  a  market,  and  afterwards 


The  count  alleged  that  .■..)  vessel  could  be  pro- 
cured at  Barbadoes  to  carry  on  the  goods.  I'lea, 
that  plaintiffs  made  no  iiKjuiry  and  took  no 
means  to  send  on  goods,  held  bad,  as  not  amount- 
ing to  a  denial. 

Whether,  in  case  of  shipwreck,  the  master  is 
bound  to  send  the  goods  to  an  intermediate  port 
to  reship  them,  when  there  are  no  means  of 
transport  direct  to  destination  of  cargo,  if  any 
obligation  exists,  is  a  ((uestion  depending  on 
special  circumstance.s,  and  the  possibility  of  such 
means  of  transport  existing  need  not  be  specially 
negatived  in  a  declaration  to  recover  insurance 
for  loss  of  goods. 

FairhauLs  ft  al.  v.  Union  Marbit  Ins.  Co., 

James,  271. 

27.    Demurrer-  Defence  raising  no  issue 

—Accord  and  satisfaction— Plaintiff  brought  an 
action  on  the  case  setting  out  that  he  had  made 
a  contract  with  defendants,  and  had  been  pre- 
vented by  them  from  completing  it. 

Pleas  that  he  had  failed  to  carry  out  the  con- 
tract, hild,  bad  on  demurrer. 

Plea  setting  up  a  new  agreement  between  the 
parties  respecting  the  same  subject  matter  before 


900 


PLEADING. 


l(;()0 


action,  liiilil  Koiiil,  tlioiigli  not  avori'iiig  tliat  tlic 

lU'W  iigrcfiniMit   WiW  hufofu   l)ri!iii.li   of   tlii^   tirst 

)in<l  not  iillujj'ing  lu-eonl  ami  satiHfaotion  of  the 

lircai'li.  i 

(iillix  V.  TruitctH  of  School  Svciion  !U.  i 

•2  H.  A:('.,  ."WK. 

a».    UemurriT  book  -  Filing  of-  Depurt< 

lire— Special  deniuner  -Wlieie  (k-fendanl  <U'- 
nuirrcd  to  jilaintitl'M  replication  ami  plaintitT 
moved  to  strike  tlie  nause  oH'tlie  docket,  on  tiie 
j^ioiilid  tliat  defendant  had  not  tiled  tiio  demur- 
rer book  at  Halifax  on  the  Tiienday  preceding 
the  term,  tiie  Court  refused  to  strike  oil'  the 
cause,  hoMing  that  the  carriage  of  the  demurrer  | 
was  with  tlie  plaint  ill',  who  iiad  a  right  t<i  say 
whether  he  wouM  iiring  on  the  demurrer  or  the  i 
pleas  tirHt. 

To  a  declaration  for  carrying  away  and  con-  1 
veiting  goods  of  the  plaintiff,  ilefendant  jileailed,  < 
justifying   the   taking   as   a  distress.      l'laintitr| 
replied  that  the  ilistress  was  excessive,  and  \>y 
other  replications  alleged  indifferent  forms,  that 
tlie  auHuint  of  the  rent   had  heen  satisfied  l)y 
rejiairs,  the  cost  of  which  defendant  had  agreed 
to  deduct  from  the  rent, 

H>ld,  on  demurrer  to  the  replications,  that 
the  replication  alleging  an  excessive  distress  was 
a  departure  and  therefore  had,  and  that  tiie 
demurrer  thereto  must  he  allowed  with  costs  ; 
that  the  other  replications  would  be  objectiona-  I 
blc  on  special  demurrer  only,  and  that  as  re- 
spected them  each  party  should   pay  his  own  , 

costs. 

Utiijamin  v.  Tobin,  2  R.  it  i'. ,  04. 

29.  Demurrer— Joinder  In -Power  of  the 

Court  or  a  Judge — Neither  tlie  Court  nor  a 
Judge  has  the  power  to  authorize  a  party  de- 
murring to  join  ill  demurrer,  unless,  as  a  condi- 
tion for  some  favor  to  the  opposite  party. 

Oarric  v.  Ptnii:',  2  Old.,  71. 

30.  Demurrer  —  Parties  -  Pleadings  — 

Plaintiff  in  his  writ,  set  out  among  other  things 
that  defeiulaut  and  himself  were  engaged  in  a 
co-))artnorsliipas  attorneys,  &c. ,  from  September, 
IMIH),  to  December,  1H71,  that  in  1867  one  Kirby 
informed  them  that  a  certain  coal  area  would  be 
vacant,  and  asked  them  to  join  with  him  in 
applying  for  it,  as  he  anticipated  trouble  in 
getting  it,  and  wanted  assistance,  to  which  they 
agreed,  the  license  to  search  being  taken  in  the 
name  of  defendant,  who  held  it  for  the  benefit 
of  said  Kirby  and  the  said  firm  (the  respective 
proportions  being  set  out  in  the  writ) ;  that 
afterwards  defendant  obtained  with  the  same 
consent,  and  for  the  benefit  of  the  same  parties. 


a  license  to  work,  the  fee  therefor  being  paid  out 
of  the  partnership  funds  ;  that  a  renewal  of  lliu 
license  to  work  was  aflerwardw  obtainecl  by  de- 
fendant, anil  before  the  expiration  of  the  re- 
newal, and  after  tlie  dissolution  of  the  co-pdil- 
nership,  defemlant  without  <iiiisulting  plaintitr 
and  without  his  knowledge,  obtained  a  lease  nf 
the  area  in  conjunction  with  said  Kirby  and  re- 
fused to  rocogni/e  plaintiff's  claim  to  any  intere.si 
therein. 

JIi/il,  on  demurrer,  that  it  was  not  necessary 
that  the  agreement  in  respect  to  said  area  he 
alleged  in  the  writ  to  have  been  in  writing  ;  tlmt 
Kirliy  mentioned  in  the  writ  was  not  a  nece.'tsiiy 
party,  as  no  complaint  had  been  made  against 
him,  no  relief  was  sought  from  him,  ami  n<> 
decree  could  be  made  against  iiini,  and  that  the 
facts  set  out  constitulecl  a  good  grounil  fur 
the  relief  sought  for  by  iilaintiff,  as  a.ssuming  the 
statements  in  the  writ  to  be  true,  the  detViicl.aiit 
was  a  trustee  for  the  jilaintitl'  to  the  extent  ot 
plaintiff's  interest  in  tlie  area. 

Katoii  v.    H'lnlhiilii,   H.  K.  1).,  4N. 

31.  Demurrer  -Pleading  SheriflT's  rcturn- 

//(/(/,  in  an  action  against  the  Sheriff  for  sel- 
ling jilaintitl's  goods  under  a  writ  of  attachmrnt 
against  the  L.  Mining  Co.,  on  a  demurrer  to  ile- 
fendant's  plea,  wdicli  set  out  the  attachnieutaiiii 
levy  of  the  goods,  "as  and  being  the  goods  nf  the 
L.  Coal  Mining  Comiiany,"  and  the  sale  r)f  the 
goods,  "  beuig  the  property  of  the  L.  Coal  Mill 
iiig  Co.,"  that  the  plea  was  bad,  as  it  did  nnt 
allege  that  the  goods  were  not  the  goods  of  tlic 
plaintiff. 

Wilkins,  J.,  fli-ssciiliinj. 

liradby  v.  MrUaii,  2  H.  &  (".,  M. 

Reversed  on  appeal  to  the  Supreme  Court  nf 

Canada.  ,,   ,,    ..,. 

McLean  v.  limdhy,  2  8.  (  .  K.,  .i.i>- 

Sti  CORPORATION,  1 7 
32.    Demurrer-Plea  to  several  counts 

Not  meeting  allegations  in  writ— I'laintirt'* 
tirst  count  alleged  breach  of  an  agreement  on  tiie 
part  of  one  of  the  defendant  companies  to  deliver 
to  him  on  certain  conditions,  the  perforiiiance  ol 
which  was  alleged,  §80.000  of  tirst  inoitgage 
bonds  of  the  Halifax  and  Cape  Breton  Kiiil««.v 
and  Coal  Co.,  which  bonds  could  long  since  hw 
been  delivered.  The  second  count  alleged  thai 
defendants  had  contracted  to  use  diligence  t" 
procure  the  issue  of  said  bonds  so  that  they 
might  be  delivered  and  attach  and  be  a  tirst  lun. 
The  third  count  proceeded  as  the  Hrst,  iwidm^ 
that  defendants  had  so  delayed  work  on  the  rail 
way  that  sufficient  thereof  could  not  lie  cmii 
pleted  to  entitle  them  to  issue  said  boiida,  aim 


1001 


PLEADING. 


1002 


im.i  iTfiite.i  ixTiiiin  otiiir  lioim  wiiiiii  w..iii<i      35.    Double pleading   A derendaiit Cannot 

(iitvi'iit  tliL'iii  fiDiii  giving,'  pliiiiititr  lliu  fust  lifii    jileail  doiililu  i<v  hcvoiuI  iiiiittiTN  in  the  luse  of 
cdiilriicted  for.     Tliu  fourth  ooiiiit  set  out  tliut    the  Crown. 

(Icfiiiiliuits  liiul  agreed  to  reliii(|uisli  their  righlH  |  (Jimii  v.  Framr,  'J  H.  k  ('.,  431, 

ii|iiiii  tlie  I'ictoii  Hraiich,  upon  which  phiintitfH' 

iiuiiiis  worn  to  attach  in  the  event  of  itH  heing      36,   Ejectment  - Dercnce as  to  part- Wlion 

Iminifil  over,  and  cliarged  <k'fen(huit.s  witli  pro-  '"  ejeetnieni  the  di-fi  iidant  hy  Iiim  plea  purpoiis 
curing  certJiin  legishitiou  of  the  Dominion  ax  well  to  defend  for  a  part  of  tiie  land  claimed  in  ilu' 
us  iif  the  Local  I'arlianieiit,  incouHiHtent  witli  p'lvintitF'H  writ,  hut  in  fact  dewerilieH  a  didricnt 
llicir  iigret'Mient  with  plaintiff  which  plainliir  lot,  the  plaintitF will  he  entitled  t<i  judgment. 
n'M--ted,  while  defendants  opposed  his  action  and  /'"*  Uliss,  .1.,  in  MrMarsttrn  v.  Uraham — If 
insisted  that  the  legislation  should  pass  without  such  a  |)lca  he  jtnl  in  with  the  design  of  mislead- 
itlVrt  lice  to  his  rights.  The  sixth  count  alleged  '"g'>  I  will  eiuleavor  to  make  the  attorney  pay 
tVaiid.  Defendants'  third  plea  to  the  first,  second  <!>«  t'osls  out  of  his  own  pocket, 
liii.d,  fourth  and  fifth  counts,  alleged  that  said  | 
iimrtgage  honds  could  not  legally  lie  issued,  al- 1 
tliciigh  defenduMls  had  used  every  ililigence.  j 
The  fourth  i)lea  to  the  same  counts  set  out  that 
tile  (iovernnient  of  Nova  .Scotia  had  withheld  its  title  to  relief  must  be  alleged  in — 4th  R.  S.,  c. 
cciisiiit  to  the  i.ssut!  of  i(ai<l  bonds  as  it  was  94,  a.  16'-' -  I'laintitt' lirought  action  for  the  non- 
aiitliorized  and  empowered  to  do.  The  fifth 
[ilia   alleged    that   defendants    had    used    every 


Hadly  V.  Shirnmn  it  al.,  '2  Thorn.,  41G; 
MrMarKtirt  v.  (I'rnhnm,  Id.,  417. 

37.    Equitable  defence    Facts  which  en* 


ililiucnce  to  procure   the  issue  of  said   lionils, 
wliii  h,  so  far  as  defendants  could  make  them. 


delivery  of  certain  goods.  Defendant  pleade<l 
among  other  pleas  that  plaintiff  was  estopped 
liy  a  judgment  in  a  former  suit  hrought  hy  the 
present    defendant    against    the  now    plaintiff 


siiunld  attach  and  lie  a  first  lien.  The  sixth  jilea  fortius  price  of  the  goods,  to  which  action  it 
til  tlic  same  counts  alleged  that  defendants  \>cre  was  ])lcaded  tluit  tlie  goods  had  not  been  dcliv- 
iini  untitled  to  have  the  Pictou  idad  transferred,  j  ered,  which  issue  was  found  against  the  present 
aiiil  ileliveicd  to  defendant  company  as  alleged,  i  plaintiff.  He|)lication,  among  others,  on  e(|uit- 
Tlic  ninth  plea  to  the  fourth  count  ilcnied  tiiat  iil'ln  grounds,  in  effect  that  the  judgniciit 
(It iVinlants  had  agreed  to  relin(|uish  their  rights  ;  pleaded  had  been  recovered  without  jilaintitf 
III  I  he  I'ictou  branch,  or  applied  for  or  obtained  having  had  an  oi>]ioitunity,  owing  to  nnfor.seen 
iui  Act  of  the  Nova  .Scotia  Legislature  as  alleged,  I  eircumstances,  of  substantiating  his  plea  by 
iirii|i|i(ised  plaintiff's  action  in  reference  thereto,  i  testimony.  The  identity  of  tiie  issues  raised  in 
Till-  tenth  plea  alleged  that  the  Acts  referred  to 
Wile  jiassed  to  carry  out  the  public  policy  of  the 
I'l'iivincc,  and  defendants  had  no  power  to  pre- 
vent their  passage. 

ll'lrl,  that  lliese  pleas  did  not  meet  the  allega- 
tions in  plaint ifl's  writ. 

V'""  )■' ,  whether  the  defendants  could  plead  a 
jilia  to  iicveral  of  plaintiff's  counts  without  sng- 
gisting  tiierein  that  they  were  for  one  and  the 
sii'iie  cause  of  action. 

(•riijory  v.  Canada  Improntw iit  Co.  it  al., 

•2  R.  k  (i.,  .SSI. 


33.  Demurrer  -  Statement  nf  mutter  of 

law— The  only  matter  of  law  to  be  argued  in  a 
ilonuirrer  was  contained  in  a  note  on  the  margin 
nf  the  demurrer. 

Hild  suflicient  to  satisfy  the  Statute,  cap.  94, 
section  i;j|.  Rev.  Stats.,  4th  series. 

Gourley  v.  Carter,  h  R.  &  (J.,  S.S. 

34.  Demurrer  to  whole  writ -Ground  of 

demurrer  being  to  whole  writ,  even  if  appli- 
cable to  part  of  writ,  must  be  overruled,  as  it 


the  two  suits  was  clearly  established,  and  a 
verdict  having  been  found  for  plaintiff, 

III  Id,  that  the  docti'ine  of  estojipel  applied, 
that  tlie  eiiuitable  lejilication,  not  setting  out 
the  circumstances  referred  to,  was  insufhcient 
and  that  the  verdict  must  be  set  aside. 

Marmaud  v.  MrCnady,  ii  R.  it  C,  (Ki. 

38.  Equitable  defence  must  be  pleaded 

as  such— Plaintiff  in  ejectment  claimed  the  title 

under    a    deed     from    his    father.       Defendant 

claimed  under  an   unregistered  agreement  for  a 

twenty  years'  lease,  prior  to  the  deed,  of   which 

he  alleged  plaintiff  hail  notice.     The  deed  was 

recordeiL 

//'III,  that  the  defence,  if  good,  was  an  e<|uit- 

j  able  <lefence  only  and  couhl  only  be  pleaded  as 

I  such. 

Ho,j,j  v.  Shtdd,  ")  R.  k  a.,  490. 

39.  Equitable  defence-Replication  to  - 

When  the  defendant  pleads  a  plea  on  equitable 
grounds,  the  replication  need  not  allege  that  it 
is  on  equitable  grounds,  as  no  replication  on  any 


could  not  be  good  in  part  and  bad  in  part-  ;  other  grounds  can  be  pleaded 


BRITISH  NORTH  AMERICA  ACT,  13. 


Barton  it  al.  v.  Baldicm,  3  R.  &  C,  .302. 


1003 


PLEADING. 


11)04 


40.    Estoppel      Xi'cewUy  of  plea  of     In '  N<)v«MniMT,  mM  tUv  \<\\\  f..r  full  value  tn  ii,« 

nil  aitiiiM  a^aiii.tt  llu'  (  ity  for  reniox  iii^'  plaint  ill "»  plaiutitT,  wlii>  ruinitled  it  the  ftaiiH!  day.  'I'lif  lull 
Https,  it  appoaifl  in  I'viileuco  thai  whi-n  Iho  wan  accepted,  hut  the  aL'i:ept(>i«  having  fmlid 
City  Kiigineer  called  on  plaintitl'  in  reference  to  j  heforu  it  matured,  <lefendanta  were  Nued  hm 
the  alleged  encroachinoiit  on  the  street,  plaintiff  indorHer«.  Deteiidaiitu  pleaded,  among  othir 
iwked  the  Kiigineor  to  gj  him  the  line  of  the  i  thingn,  that  they  were  diHoharged  of  tluir 
Btreet,  whereupon  the   Kngi.ieer  marked  it  on    lialiility,    hy   the  delay  in  putting  the    hill  m 

circidation.  A  motion  having  been  niaile  to  net 
asiclo  the  pleaH,  it  waM  contended  on  heliult  of 
dofendantu,  that  the  (|ueHtion  of  undue  delay  or 
negligence  hIiouM  he  left  to  a  jury. 

Jlild,  netting  auidu  the  pleaH,  that  the  lioiclera 
of  the  hill,  being  entitled  to  reasonable  time, 
there  was  no  such  delay  as  to  constitute  a  defiiue 
in  law. 

Johnstone,  K.  J.,  was  of  opinion  that  theoase 
was  one  which   did  not  come    within   the  7l«t 


the  corner  of  the  steps  with  a  pencil.  Defen- 
daiit'H  counsel  contended  tiuit  plainlitf  was  bound 
by  this  proceeding,  under  section  '270  of  the  Act 
of  Incorporation,  ar.d  that  ntit  having  appealed 
under  section  ■2~\,  he  was  estopped. 

//</</,  that  the  defendant  couhl  not  take  ad- 
vanliige  of  th(!  estoppel,  not  having  pleaded  it. 

Km  11.1  V.  Tlip  City  of  Halifax,  W  K.  it  «i.,  .'J-M. 

41.  False -Pleas  clearly  shown  by  afll* 

davit   to  be   false   will    be   set  aside   as  being    section  of  the  Practice  Act  (Revised  .Statutes, 

vexatious.  I  .3rd  series),  and  that  the  defendants  were entil led 

Emm,s  ,t  al.  v.  Taylor,  .lames,  444.  |  ^^,  ^,,,,^,j^  j,,^;^  defences  to  a  jury. 

1  Willde  et  al.  V.  Wetmore  et  al.,  1  N.  S.  1).,  :m. 

42.  False-Costs  of  unsuccessful  appllca> 

cation  to  set  aside  picas  as  — Where  there  is  an  | 

applicatiim  to  set  aside  i)leiis  as  fidse,  and  nth-'      4.?.     False,  frlVOlOUS,  £C.— Affidavit  in  all* 

davits  in  reply,  alleging  that  the  pleas  are  true,  swer  to  application  to  set  aside  pleas  al- 
though the  .ludge  will  discharge  the  rule,  he  1  Allegation  in  defenilant's  affidavit  "that  the 
Mill  in  general  direct  the  coats  to  be  costs  in  the  !  pleas  are  not  false,  frivolous  and  vexatious  ami 
j,ni,8L.,  ,  are  not  pleailed  solely  or  principally  for  delay, " 

Donohoe  v.  liotilin, '2  TUoni., '2',]3.        f/ild,iAwi  etlect  in  opposing  motion  to  set 

'  aside  pleas  under  4th  H.  S.,  c.  04,  s.  l.'W. 

43.  False,  frivolous,  Ac.  To  an  action  on  ^.))(rt.'»v,  whether  tliat  or  the  contrary  allcgu- 
a  promissory  note  brought  by  the  indorsee,  tie-  tion  in  plaintitT's  atfidavit  on  such  motions  is 
fendant  pleaded  on  etjuilable  grounds,  that  the    necessary. 

note  had  been  made  merely  to  enable  the  payee,  |  Pord  v.  lirovm,  2  R.  &  C,  408. 

who  had  iiulorsed  it  to  plaintiff,  to  raise  money 

on  it,  and  the  plea  net  out  other  circumstances  46.  Frtlse,  4c.  -Allegations  Of  fulslt)  de- 
connected  with  the  note  byway  of  e(iuitable  de-  nied  by  defendant— Where  in  an  upplicati.m  tn 
fence,  alleging  that  plaintiff  had  knowledge,  set  aside  pleas  as  false  the  defcn.lant  makes  an 
riaintiff,  in  his  affidavit  to  set  aside  the  plea,  i  affidavit,  denying  everything  alleged  in  plauititf's 
denied  knowledge  of  the  fact  relied  on,  and  de- 1  affidavit,  on  which  the  order  to  set  aside  the 
fen.lant  in  reply  asserted  his  belief  that  plaintiff   pleas  was  granted,  the  Court  caimot  make  the 


had  knowledge,  and  that  plaintiff  and  said  payee 
had  been  very  much  mixed  up  with  each  other, 
and  "he  considered  it  almost  impossible,  but 
that  plaintiff  should  have  known  the  true  history 
of  the  note. 


order  absolute. 


DuCaen  v.  />«»»*■,  "2  Thom,  77. 

47.    False,  frivolous,  Ac. -Setting  aside 

pleas— Rides   to   set    aside    pleas   will    be  <li* 

Held,  that  the  plea  must   be  set   aside,  the  j  charged,  and  the  matters  in  issue  left  to  abide  a 

essential  allegation  of  scienter  being  denied  by  ^  trial  whenever,  from  the  pleas  filed  and  the  facts 

plaintiff,  and  that  denial   not  controverted  by  '■  disclosed  by  the  affidavits,  it  is  not   perfectly 

the  defendant.  j  clear  that  no  legal  defence  exists.     On  the  other 

Kandick  v.  Arthur,  2  R.  &  V,.,  367.  ,  hand,  pleas  will  be  set  aside  whenever  it  is  clear 

j  that  in  any  possible  view  of  unconlrortrtal  facts 
44.     False,  frivolous,  &C. -Defendants,  on  I  brought  before  the  Court  by  the   parties,  the 
the  8th  October,  1868,  indorsed  a  bill  of  exchange  i  plaintiff  would  be  entitled  to  a  verdict  if  the 
drawn  by  S.  S.  on  E.  &  Co.,  of  Liverpool,  Eng.,  \  case  went  to  a  jury. 

thinking,  but  not  stipulating,  that  it  was  to  be  .      Sevihle,  coats  in  a  cause  cannot  be  added  to  the 
forwarde<l  by  the  mail  which  closed  on  the  same  i  amount  claimed,  for  the  purpose  of  bringing  it 
day.     The  drawer  overheld  the  bill  on  that  day,  I  up  to  the  appealable  amount, 
and  also  on  a  following  mail  day,  and,  on  theStli  |  numn  et  al.  v.  Rickardx,  1  N.  S.  D.,  509, 


lOo:. 


PLEADING. 


lOOfi 


4S.   Falne,  MvolouN,  Ac.     SeltlnK  »»lde  SI.  Fahe,  frivolouit  nnd  vexatious  -Settlnic 

plfn^  nit     III  an  uctioii  )iy  tliu  iiiilorMi't^n  iiguiiiHt  aaicle  plea*  rh   -An  aliiiliivit  to  Hut  luiidii  pleas 

till'  iiiilorHtT  of  a  proiiiinHoiy  nolo  tlitj  ilfft'iiilant  hh  falMi',  fiivnliiiit,  ami  vrxaf  imiH,  iiuimI  in  j,'cni'r  il 

])l(,iili'cl,  trav«i'Hinj{  tlio  allegation   of   prt-Honl-  liir  inailo  hy  tlio  plaintiff  iiiiUHcIf,  ami  niii»t  nlaii' 

ijiciii.     'I'lic  nii'MHi'iigur  of  tliu  liank  that  Ih'IiI  tint  /art.i  Nlinwing  that  thu  pluuR  aru  ho. 

imic  Hwort'  that  liu  pt'UHcntuil  it  at  tlefcmlant's  An  alllilavit  niailo  liy  plaintiff's  counsel,  aw- 

cilli.i'  whtTc  it  was  payalilu,    liotwuen  .'{  ami  4  taining  a  inert'  gt-nrral  Htatfint'iit  that  the  pleas 

]i.  Ml.,  when  said  olhce  wan  ehmeil.     Defemlant  are  false,  frivohm-s  ami  vexatiouH,  as  he  has  hfcii 

litimil  the   preHentnicnt   and   denied   that   the  informed  hy  tlie   plaintiff,  and  verily  lieli'neB, 

(irtiie  was   closed,    liut   did   not   deny   that    he  though  uncontradicted  hy  any  atlidavit  on  the 

hail    IpfCM    informed   of   the   presentment   next  part  of  defendant,  is  not  suUicient. 

li.iy.  mill    he    did    not   deny   or    refer    to    the 

fitiiti'inent  of  one  of  the  plaintiffs  that  on  his 

nIhiw  lug  tiie  defendant  the  notice   fif  dishonor  I 

the  ilifeiidant  had  promiHed  to  give  a  good  note  pl^as  -3rd  R.  S.,  c.  134,  a.  71   -The  word  "fals.. 


(iHiHon  V,  Kilty,  I  Old.,  7-4. 

52.    Fahe,  MvolouR,  Jcc- Setting  aside 


in  (iliice  of  the  dishonori'd  one,  or  else  sujiply 
pimls  to  the  amount  of  it.  The  County  Court 
.(uil>,'e  set  aside  the  plea  as  false,  .^'c,  on   the 


in  the  71st  section  of  the  Practice  Act  (Revised 
.Statutes,  .'Jrd  series),  is  the  f<uindation  of  a  jur- 
isdiction exercised  liy  the  Court,  njore  extended 


str.n>.'lli  of  the  uncontradicted  evidence  of  this    •'>""  ""'.V  authority  to  set  aside  jileas  elainiod  liy 
pioimse.  the  .Superior  Courts  in  Kngland,  luit  the  Coiiit 

Hi  hi,  on  appeal,  that  the  only  question  for  ;  <l"   ""*   "ssert   or   exercise   a   power   to  try   a 
tlie  Cimrt  under  the  pleadings  was  whether  the    fm^e  thus  summarily,  or  decide  controverted 


had  heen    actually    presented,    and    thai    facts. 


'"'''■ 

phiiiitifts  could  not  1.0  said  to  have  estal.lished       ''"''t'  <""">■♦  '>''^'''  '^  '"'fe'l't  to  reiiuire  an  explicit 

the  fai  t  of  presentment  as  there  was  a  contra-    explanation    of    facts     necessarily    within    the 

ili^lj,,,,,  defendant's  knowledge  on  the  pain  of  treating 

EvauH  ft  a/,  v.  Fo^titr,  \  R.  &  (i.,  (iO.    his  plea  as  fraudulently  evasive  or  false.     Fads 

not  so  within  his  knowledge  may  he  stated  less 
distinctly.  In  the  latter  case  it  m.vy  he  pro|)er 
to  admit  statements  of  information  and  belief 
which  would  1)0  inadmi.ssil)le  to  substantiate  a 
fact  before  a  jury,  the  powers  of  a  Court  or 
Judge  being  not  to  establish  a  fact,  but  to 
ascertain  whether  there  is  a  fact  to  be  tried. 
The.  liank  of  Xora  Srotia  v.  Chipmnn  <l  at., 

1  N.  .S.  a,.V.>l. 


40.  False,  frivolous  and  vexatious  -Setting 

aside  pleas  as— I'leas  which  are  only  demurrable 
caiinnt  be  set  aside  as  false,  frivolous  and  vex- 
.itiiiiis,  under  Revised  .Statutes,  c.  l.'J4,  sec.  71. 

.All  application  to  set  aside  pleas  under  this 
seLtiiin  siioulil  be  made  promptly. 

In  iipplieations  of  this  kind  the  falsity  of  the 
plras  is  always  the  main  imjuiry. 

Chipman  v.  Ritrhii',  1  Old.,  710. 


50.  False,  frivolous,  &c. 


53.    False,  h'lvolous,  &c.  —  Setting  aside 

pleaa  as— 3rd  R.  S.,  c.  134,  a.  71— Under  He- 
vised  Statutes  (3rd  series),  c.  l.'J4,  s.  71,  pleas 
will  be  set  aside  when  assailed  on  atlidavit,  and 
Setting  aside  I  where  thoy  appear  upon  argument  to  be  false. 


pleas  as— Plaintiff  sued  on  a  promissory  note  for  j  though  a  part  of  the  pleas  may  lie   sustained. 


•*70.'.','),  and  defendant  pleaded  the  usual  pleas, 
ilciiyiiig  the  making,  consideration,  &c.  Plain- 
tiff iipplied  at  Chambers  to  have  the  pleas  set 
asiilc  as  false,  frivolous  and  vexatious,  and,  in 
opposing  the  motion,  defendant  produced  an 
iffiilftvit  in  which  he  admitted  indebtedness  to 
the  amount  of  84"2.7"2,  but  no  more,  and  alleged 
tiiat  Ilia  pleas  were  not  pleaded  for  purpose  of 
ilelay,  hut  that  justice  might  be  done.  The 
Juilge  at  Chambers  set  the  pleas  aside,  and 
(lefcinlaiit  appealed. 

Hf^ld,  that  his  appeal  would  be  sustained, 
provided  the  sum  of  !j42.72  was  paid  into  Court 
within  ten  days,  otherwise  plaintiff  should  retain 
'lis  jutlginent. 

Hi/l  V.  Culman,  S  X.  .S.  D.,  352. 


The  defendant  (unless  in  exceptional  cases)  shoiilil 
pay  the  cost  of  setting  aside  such  pleas  as  are 
false,  leaving  the  cost  of  moving  to  set  aside 
such  pleas  as  are  sustained  to  abide  the  event. 
Sfephen.ioii  v.  Col/ord  ;  Boi/iji  v.  lieumlt, 

3  N.  S.  D.,  .'Vt. 

54.    False,  fk'ivolous,  &c.  —  Setting  aside 

pleas  as  false,  &c.— Practice— Applies  to  fore 
closure  suits — NVhere  on  an  application  to  set 
aside  pleas  as  false,  frivolous  and  vexatious, 
facts  showing  the  pleas  to  be  essentially  false 
are  positively  sworn  to  and  are  only  partially, 
but  not  directly  and  explicitly  denied  in  the 
affidavits  on  the  other  side  the  Court  will  set 
the  pleas  aside. 


1007 


PLKADING. 


1008 


Thnii«li  111!  iitfi'lnvit  t.i  Nft  a»i(lu  |>U'imi  an 
fiilii*'  niiiHt  ill  KfiKTiil  be  niiiiU'  l>y  tho  iiliiintiH 
hiniHi'lf,  tliiH  rulr  .Imn  ii..t  iipjily  wIh-it  tlu-fiicm 
im  whicli  tlie  |)liiiiitiff  iclifH  arc  in  lli«'  kiiowlfdgf 
.if  ihf  attuiiify  and  ii"t  nf  the  jilaiiitiff. 

A  mot  inn  to  ml  uhI.Ic  faUu  ami  vi-xaliou*  pli'ii* 
.ipplii'H  iM|iiiilly  to  a  foiTcloHiin!  aKtoa  coiiiiiioii 
law  unit.  .,  -»i  1     .•...< 

Oil  npiital  to  Ihr  Vriry  Coiiwil, 
Hi  III,  'liat  Hiicli  orilerwan  irri'>!iilar  aiitl  inuHt 
!«■  M't  aHJ.lc,  tin-  .Imlifial  Coiimiittcf  (without  ik- 
li.liiij?  the  mi'iits)  Iwiii^  of  njiiiiioii  tliat,  tlioiigii 
I  he  pleas  were  iiicoiihiMtciit ,  mullifarioiiK  aiul  em- 
hill  niHMiiy,  the  Supieme  Court  waH  liouiul  l»y  llie 
pi.,vi»i..iiN  of  :h.l  Kiv.  StatH.,  e.  134,  bh.  62*  (13, 
ill  respect  (if  amemlineiil  of  pleailiii;{n.  The  wuit 
was  remitted  haek  to  llie  Court  hehiw,  with 
iili.rty  for  the  defendant  to  apply  to  amciiil  his 
pUuH,  or  ill  default,  that  the  plea«  HJioilld  be  set 
asiile. 

Wallace  v.  McSinuny,  L.  H.,  'i  1'.  C.,  180. 


55.    False  reprcsenlatlons   AHcgHtlons  of 

facts— Demurrer  -I'laiiicitl'H  fourth  couiit  wuk 
MS  followH:  "That  the  bill  of  exchange  and 
[irniiiisHory  notes*  above  declared  upon  were 
discounted  by  the  jdaintifTK,  and  the  money 
advanced  to  tlui  deien.lant  tiierefor  was  ho 
advanced  upon  the  representation  of  the  said 
r.  (J.  Ihnld.tlmt  tlic  said  tiiiii  of  Wm.  L.  Dodge 
.^s  Co.,  the  defendants,  had  assets  to  a  large 
;imount  over  and  above  all  their  indebtedness 
at  the  time  said  advances  were  made,  and  the 
lilaiiitifTs  say  that  in  triitii  and  in  fact  the  said 
Will.  L.  Dodge  ife  (,'().,  the  defendants,  had  no 
such  assets,  as  the  saiil  T.  (i.  Uudd  well  knew, 
and  the  said  defendant  obtained  the  discount  and 
advances  ileelared  upon  by  false  and  frivohius  (•</.■) 

representations  and  under  false  pretences. 

llfhl,  bad  on  demurrer,  1st,  ;'i':cause  it  did  not 
.illege  that  Hudtl  oi.taineil  ti.u  discount  and 
advances  on  the  bill  and  note  declared  upon, 
with  intent  to  defraud  tiie  plaintiffs  ;  '2nd,  be- 
cause  it  did  not  allege  tliat  the  debt  had  not  j 
been  paid  ;  and  3rd,  because  it  did  not  allege 
the  offence  charged  against  or  act  committed  by 
Hudd  to  be  contrary  to  the  .Statute. 
Banl{  of  British  North  America  v.  Bwhl  <t  nl., 

3N.  S.  D.,97. 

56.    Fraud  must  be  pleaded -Replication 

—In  an  action  of  ejectment  defendant  pleaded 
an  eiiuitable  plea  setting  out  certain  deeds  as 
the  links  in  his  title.  At  the  trial  plaintiff 
sought  to  attack  one  of  the  deeds  on  the  ground 
that  it  was  without  consideration  and  a  fraud 
on  third  parties. 


//(/(/,  llial  plailililf  ►hoiild  liave  uplieil 
alleging  the  fraud,  and  not  having  no  pleaded 
could  not  adduce  it  in  evidence. 

Kiiiiinir  V.  I/iirriivii,  '2  N.  S.  D.,  'H. 

57.  Fraud  must  be  pleaded   Where  a 

verdict  was  found  on  tiie  groiimi  of  fraud,  Imt 
there  was  no   plea  of   fraiul  on  the  record,  Uiu 

i  (^lurt  set  the  verdict  aside, 

I       Unlesw  fraud  lie  specially  jileaded  no  evidence 
can  be  given  of  it, 

mil  v.  Aichlmlil,  1  Oid,,4.V.', 

58.  (Guarantee    Aellon  on    Plea  of  per. 

formanee  of  contract  by  principal  Dcini.liim 
gave  pluintilf  a  guarantee  for  certain  clcciits  m 
be  given  liy  jdaiiititV  to  1»,  d,  M,  To  tiir  |iliiiii- 
tiff's  declaration  on  a  guarantee,  dcf.iidaiil 
pleadid,  among  other  things,  that  D,  .1,  M. 
fiiltilleil  to  (daintilf  tiie  contract  for  whidi  difiii- 
dant  liecanie  iiis  suicty. 

Ildil,  that  tiie  defence  set  uji  in  tlic  plci  \\m 
sutliciently  pleaded, 

Mchouiilil  V,  McDonald,  '2  N.  S.  1).,  b'!(). 


60.  Guarantee   Consideration    Doniiirrer 

—Action  upon  a  sjiccial  contiact  in  tlic  nature 
of  a  guarantee,  alleging  that  defciidiuil  ^avc  ii 
special  iironiise,  and  made  a  sjacial  iigKHiiiiil 
to  pay  the  plaintiff  the  amount  iluc  fmin  oiiu 
D.  McI.,  the  father  of  defendant.  Iletiiidniil 
demurred,  because,  among  otiier  groinids  tlif 
consideration  for  making  «u'  giving  tlic  spicial 
promise  or  agreement  was  not  set  fortii  in  citlur 
count  of  plaiiititrs  declaration, 

IltM,  tliat  there  should  be  judgiiieiit  im-  du- 
fendant  upon  the  demurrer. 

Cami'hill  V.  Mclsaac,  3  X.  S,  D.,  •Js:. 

«0.    lllghway-Plca  of,  not  divisible  The 

plea  of  highway  is  not  divisible,  and  nuist  In' 
made  out  as  pleaded. 

Ltury  V.  Saiinikrs  ct  at.,  1  Ulil.,  IT. 

j    61.   InJunctlon-Not  necessary  to  plead  to 

—An  application  to  compel  plaintiff  to  aiuciid  a 
writ  of  injunction  iireveiiting  the  City  of  Hahfax 
from  filling  up  a  dock  on  the  north  of  pliiiiititl's 
wharf,  on  the  ground  that  plaintiff's  claim  was 

I  BO  indefinite  that  it  was  impossible  for  tiie  de- 
fendant to  plead  to  it,  was  discharged  «it'i"iit 
costs. 

i  Per  Bliss,  J.— I  do  not  see  that  you  arc  com- 
pelled to  plead  at  all. 

I  do  not  see  that  a  writ  was  necessary  in  this 
case.     The  affidavits  are  in  the  nature  of  ii  writ. 

I  Beamish  v.  City  of  Halifax,  2  Thoiii,,  '2:21  ■ 


1009 


PLEADING. 


1010 


tCJ.   Inoolvent  Art    Suit  for  pcnnlty 

llilil,  iiimci't'HHary  tuiilU'gi',  in  |»i'(K't't'(liiij{M  foi' 

II  pt'iiulty  tiinU'r  Nt'ctioii  Ih.'  of  tlio  IiiMolvciit  Act 
I.I  IM(i|),  mill  Ncotioii  \'M\  (if  lliu  IiiMolvuiit  Aut  of 
|h7,'i,  that  tlui  ilrfi'iiiliiiit  wiin  iiiMdIvt'lit  within 
tliu  naanintj  of  tlio  Act. 

Jlai-riiiiilon  v.   Withr,  '2  K.  iS:  (',,  :W'_». 

M,   Initohcncy    Uefenre  of  d'    harge  In 

Replication  of  fVaiul  WIiltu  t!  o  plaintillto 
a  jilca  of  iliNi'hai'gt',  umli'i'  ihu  liiHolvi'iit  Act  of 
Istil),  ruplivil  that  tliu  iliMcliargu  ha<l  liucii  oli- 
taiiK'il  liy  fiauil, 

Hi'il,  tliat  the  rt'|ilication  wiih  gooil,  and  that 
tlic  .liicl^.'!' who  tiicil  the  cansu  hail  niimliii'ctcil 
til*'  jury  in  instructing  thoni  that  the  (|iR'Mtion 
(pf  fraiiil  was  only  for  the  (.'onit  that  contirnieil 
ihc  iliscliaigis  anil  coiilil  not  he  lirought  np 
vxcipl  lpy  a|ip('al. 

do'lUu  V.  Hurl,,   I  K.  it  ('.,  201. 

(14.   Insolvcnc)    Plea  uf  dlttcharKc  In  In- 

Bolvency— Replication  necesHary  to  raise  queH- 
tion  of  defect  in  Huheduling-  -To  an  action  on 
n  proniissoiy  note,  ilefeiidiint  j)k'aile(l  iii/i  r  tih'd 
a  iliscliarge  nnder  the  Insolvent  Act   of  |H7,'). 

III  the  Kcheilnleof  lialiilitieH  a  delit  due  plaintifl's 
was  net  out  "  W.  A.  \.  aliout  .'j'TiiCt." 

Hi  III,  that  this  was  a  sutlicient  compliance 
witli  the  Statute,  hut  that  if  otiieiwise  the  de- 
fi'cl  in  the  Huliudule  Hhould  have  lieen  made  the 
)<iilij('('t  of  a  replication  which  in  this  case  had 
ii(pt  liceii  pleaded. 

NmiJ}}.t  It  (U.  V.  Mnskrl/,  7  R.  &  ().,  ')47.  j 

0.1.   Insolvency -What  sufficient  to  put  In 

issue  question  whether  aaaignee  a  trader  - 1  leu 
tliat  ))liiiiititl' was  not  assignee  as  alleged  hold  to 
put  in  issue  the  (piiistion  whether  assignor  was 
11  trailer  who  could  assign  under  the  Insolvent 
Act. 

Crfifihtoii  V.  Chit/irk  ft  ti/.,  '2  R.  &  <;.,  JM» ; 

1  C.  L.  T.,  .-.08. 
Attirined  on  appeal  to  the  Supreme  Court  of 
Canada. 

7  S.  C.  R.,  348; 
2V.  L.  T.,'-'48. 

66.   Insurance— Plea  of  over-valuation  In 

proof  of  loss— Under  conditions  in  a  policy  of 
tire  insurance  for  S'400  requiring  that  in  claini- 
iiig  for  a  loss  the  whole  actual  cash  value  of  the 
property  insured  should  be  declared,  and  provid- 
ing that  any  fraud  or  false  swearing  should  viti- 
iite  the  claim,  defendants  pleaded  that  plaintifls 
ilelivered  a  false  and  fraudulent  account  of  the 
ftlleged  loss,  and  that  plaintiffs  had  declared  the 
building  destroyed  to  be  worth  lJ600  to  induce 


the  ilefendantH  to  pay  him  9-t()(),  whereaM  the 
linilding  wiin  not  of  that  value  and  plaintitf  had 
not  Hutferi'd  damage  to  that  extent,  uh  the  in- 
Miu'cd  well  knew. 

/li/il,    that    the    defence     was     Miitfii'iently 
pleaded. 
(/nttoiiiiiiay  it  ul.  v.  Sorrrtiiin  Fin  I  in,  t'i>., 

:«  I!.  A  (i.,  .s:«4. 

07.  Issue  Joined  on  Insufficient  defence  - 

Repleader  awarded  'I'lu^  plaint itf  took  issue 
u)ion  a  plea  which  was  held  todiNclosu  a  defenie 
iiiHutlicient  in  Hubstance.  Verdict  for  defendiuit 
Hut  aside,  and  a  repleader  awarded. 

Milaiicnii  v.  (  Vk/kkh,  .lames,  :{7.'J. 

08.  Joinder  of  counts    3rd  K.  S.,  c.  134, 

8.  110  Pleading  -  Section  111),  chapter  l.'M, 
Revised  .Statutes  (.'Jrd  series),  in  reference  to 
joinder  of  different  ca\iseH  of  action  in  the  same 
suit,  applies  only  to  civil  suits,  and  not  to  pro- 
ceedings of  a  mixed  civil  and  criminal  nature. 
Hank  of  H.  X.  A.  v.  limldit  a'., 

•.\  X.  ,S.  1).,  !I7. 

OU.    Judgment  -Action  on    Husband  of 

wife  against  whom  ju  ".'Tient  before  her  mar- 
riage—Like other  defendants  cannot  plead 
matter  of  defence  to  original  action— To  an 
action  on  a  judgment  the  defendant  cannot  (ilead 
any  fact  which  might  have  been  pleaded  as  an  an- 
swer to  the  original  action.  Where  a  party  lias 
obtained  a  judgment  against  another,  he  may 
proceed  upon  it  at  ccmnnon  law,  and  is  not  com- 
pelled to  proceed  by  writ  of  revivor.  The 
husband  of  one  of  several  parties  against  whom 
a  judgment  lias  been  forinei'ly  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. 
Ikujnmin  v.  Cnmplx-.ll  e.l  ah,  '2  N.  S.  I>.,  .'Wtl. 

70.   Jud^^mcnt  reversed  where  Issues  on 

which  given  was  not  raised  by  the  pleadings 
—The  defendant  .Society,  a  company  doing  life 
insurance  business,  was  sued  by  plaintiff,  as 
widow  of  .J.  R.  L.  W.,  to  recover  an  amount 
payable  to  her  under  a  bond  of  niembership 
issued  to  the  deceased  in  his  life  time. 

The  main  defences  raised  were  concealment, 
an  error  in  the  statement  of  the  date  of  birth  of 
the  deceased,  misrepresentation  as  to  the  nature 
and  severity  of  an  attack  of  apoplexy  by  which 
he  had  been  seized,  and  the  date  of  its  occur- 
rence. At  the  trial,  judgment  was  given  in 
favor  of  the  defendant  on  the  sole  ground  that 
the  attack  in  question  was  proved  to  have 
occurred  four  years  before  the  date  of  appliea- 


1011 


PLEADING. 


1012 


tioii,  ami   not   five   years,  as   represented,  the  ' 
medical  testimony  allowing  that  the  greater  tiie 
lengtli  of  time  elapsing  after  such  an  attack,  tiiu 
less  likelihood  tliere  would  he  of  its  recurrence. 

On  appeal,  the  judgment  below  was  reversed, 
and  jiulgnient  ordered  to  he  entered  fr)r  plaintiff ; 
with  costs  of  tlie  appeal  and  of  the  trial  l)elow, 
on  the  ground  that  tiie  issue  on  which  judgment 
was  given  for  tiic  defendant  was  not  raised  hy 
the  pleadings,  aiul  that  the  other  issues  were 
properly  found  in  favor  of  plaintiff. 

Tlie  defence  also  set  uj)  an  express  condition 
of  the  bond  of  membcrsliip  on  wliich  tlie  action 
was  brought,  that  the  bond  should  be  null  and 
void  if  any  of  tlie  answers  in  tiie  application 
sliould  be  untrue  or  evasive,  or  if  the  applicant 
should  conceal  any  facts. 

'I'iiere  was  no  such  warranty  in  the  bond,  but 
the  application  contained  a  condition  to  that 
effect. 

Quaere,  whether  this  was  not  a  variance. 

Wehs/cr  it  a/,  v.  The  Mulunl  Rdii/ Sori'i /}/, 
20  N.  S.  R.,  (8  R.  &  O.),  Ml. 

11.  Jurisdiction— Plea  to  -Agency— Plain- 
tiff brought  an  action  against  the  defendant  for 
the  price  of  a  horse,  and  the  declaration  contained 
also  the  common  counts.  It  appeared  that  the 
liorse  liad  been  sold,  not  to  defendant,  but  to  a 
tiiird  [larty,  from  whom  defendant  received  §(5.5, 
to  be  paid  to  the  plaintiff.  Ho  paid  only  1S!52, 
used  tlie  balance  of  SI.'?  for  his  own  purposes, 
and  told  plaintift'he  would  give  him  the  balance. 
He  afterwards  claimed  a  set-off  against  plaintiff, 
of  which  there  was  no  plea. 

Hehl,  that  in  the  ab.sence  of  a  plea  to  the 
jurisdiction  as  recjuired  by  the  County  Court 
Act,  plaintiff  was  entitled  to  recover  the  .SI,"? 
under  the  money  coinits,  and  that  the  judgment 
for  defendant  should  be  reversed. 

McDonald,  J.,  diMtnliiui. 

Sharp  V.  Maxner,  3  R.  &  (i.,  105. 

72.  Jus  tertii  —  Defendant  can  set  up, 

where  plaintiff  out  of  possession,  under  plea 
denying  plaintiff's  property— In  an  action  of 
trover  for  quartz,  &c.,  defendant  pleaded,  deny- 
ing plaintiff's  property  in  the  goods,  and  gave 
evidence  that  the  property  had  been  seized  under 
execution  against  the  plaintiff,  and  sold  to  a 
third  party.  The  plaintiff  at  the  time  of  the  \ 
alleged  conversion  was  out  of  possession.  i 

Held,  that  as  the  plaintiff  was  out  of  posses-  \ 
sion,  defendant  could  set  up  the  ^'im  tertii  under  ' 
a  plea  denying  the  plaintiflF's  property.  j 

Campbell  v,  Yeadoii,  5  R.  &  G..  212.  ! 

73.  Justification,  pleas  of- Pleas  of  Jus- 

tification  under   authority  of   the  Crown  sus-  [ 


tained.  Decision  in  Knt,ii.i  v.  A'o<.<  (1  R.  &  (;., 
16.')),  sustained. 

Wallace  et  al.  v.  //oi-s  2  R.  &  C,  10(1. 

74.  Justification- Police  officer  may  give 

evidence  to  show,  without  pleading  specially 
— Two  assaults— Plaintiff  cannot  waive  one  — 
The  plaintiff  having  been  arrested  on  view,  and 
imprisoned  by  defendant,  a  police  constable,  iunl 
his  superior  otlicer  brought  an  action  of  trespass 
against  the  former  and  recovered  a  verdirt. 
The  dcclaralioti  contained  only  one  count  fur 
an  assault  and  false  imprisonment,  while  twi> 
distinct  assaults  were  proved  at  the  trial,  tliu 
second  being  the  one  connected  with  tlie 
imprisonment  ileclared  on. 

Held,  that  this  was  a  fatal  objection,  liiu 
plaintiff  not  being  at  liberty  to  waive  the  asisaiill 
first  proved,  and  give  evidence  of  another.  Uiidtr 
Dom.  Stats.,  32  and  Xi  Vic,  c.  29,  s.  132,  tlie 
defenilant  being  a  subordinate  police  officer,  may 
give  evidence  to  show  a  justification  under  tin; 
command  of  a  superior  officer  without  plcadini,' 
such  justification  specially. 

Peppy  v.  Grono,  1  R.  &  C,  .SI. 

75.  leave  to  reply  refused— Appeal -Tlie 

County  Court  Judge  refused  to  allow  plaintitl, 
after  the  expiration  of  thirty  days  from  the  tiling 
of  defendant's  plea  of  payment  into  court,  to 
reply  that  the  amount  paid  was  insutficiuiit. 
Defendant  appealed  under  the  County  Coiiit 
Amend'  lent  Act  of  1877. 

Held,  that  the  rule  had  been  wrongly  refustil, 
and  further,  that  as  the  refusal  to  allow  a  rcjili- 
cation  was  decisive  against  the  plaintift"'H  claim, 
and  therefore  a  final  judgment,  it  could  be  ap- 
pealed from. 

The  provisions  of  the  County  Court  Act  of 
1877,  as  to  appeal,  supersede  altogether  those 
of  1874. 

McCahe  v.  McKay,  3  R.  &  C,  s.t. 

76.  Libel-It  is  sufficient  to  specify  tbe 

defamatory  sense  of  libellous  words  in  the  form 
of  an  innuendo,  without  other  averments. 

Hoherln  V.  Patillo,  James.  'MVi. 

77.  libel- Averments  —  Innuendoes  —  In 

an  action  for  libel,  the  third  count  of  the  deilai- 
ation  alleged  that  the  defendant  falsely  ami 
maliciously  published  of  the  plaintiff,  in  relation 
to  his  calling  as  a  minister  of  the  gospel,  tlie 
words  following:  "Notice. — All  persons  who 
have  at  any  time  paid  Mr.  William  Bowers 
(meaning  the  plaintiff),  formerly  of  the  Lutheran 
Church  in  Nova  Scotia  "  (meaning  that  plaiiitifl 
at  the  time  of  such  publication  was  falsely  pie 


1013 


PLEADING. 


1014 


tending  to  ho  a  LutluTiin  Minister  in  Xova 
Scotiii)  "(iny  money  for  funeral  services,  will 
cont'er  a  great  favor  npon  the  piihlic  generally 
hy  handing  in  tlieir  names  to  the  editor  of  this 
papt'i-  as  early  as  they  jxjssihly  can,  and  before 
the  close  of  the  first  week  in  Octoher  next." 

ILUl,  on  demurrer,  that  the  count  as  contain- 
ing proper  averments  and  innuendoes  was  good. 
Boiri'TH  V.  HuH'hinson,   1  Old.,  070. 


78.    Libel  —  Innuendoes  —  Justiflcatlon  - 

Dcfi-ndiint  admitted  pulilication  f)f  an  alleged 
liht'l,  and  denied  that  the  alleged  defamatory 
matter  was  ]>u))lishei1  of  and  concerning  the 
plaintiff  with  the  sense  set  out  in  the  iiinuendo, 

//'/'/,  that  it  was  the  duty  of  tiie  .ludge  to 
tell  the  jury  whether  the  words  used  were 
capable  of  the  construction  put  on  them  by 
plaintiff,  and  to  leave  it  to  the  jury  whetlier  the 
words  were  in  fact  used  witli  such  meaning. 

Held,  further,  that  under  the  plea  in  which 
defi'iidant  justified  the  ])ublication  as  a  legiti- 
mate criticism,  the  .Tu<lge  should  liave  told  tiie 
jury  wliether  or  not  the  occasion  created  a  priv- 
ilege, and  if  so,  should  have  left  it  to  the  jury 
to  siiy  whether  the  defendant  was  actuated  by 
malice  in  fact,  wiiicli,  if  it  existed,  destroyed 
his  ])iivilege. 

liny  v.  Corhtil,  4  R.  kV..,  4(»7. 


79.   Municipal  corporation  —  Action   for 

negligence — Defence  that  the  defective  bridge 
which  occasioned  accident  is  on  highway  must 
be  pleaded— VHnoe,  whether  a  defence  at  all- 
Plaintiff  while  crossing,  on  horseback,  a  Initige 
witliin  the  municipality,  received  injuries  found 
to  have  resulted  frf)m  the  negligence  of  the  cor- 
poration and  its  officers. 

Hi  Id,  that  the  defendant  corporation  was! 
lialik  ;  that  the  fact  of  the  bridge  being  on  a  I 
highway  was  no  defence,  or  if  a  <lefence  should  \ 
have  been  pleaded  ;  and  that  no  notice  of  action  ] 
was  necessary.  I 

Mcijuarrie  v.  The  MunkijHility  o/Sf.  ^fu)^l/'■■t,     : 

5  R.  &0.,  41):J. 

SO.  Name  of  parties  —  Identity  —  Plain- 
tiffs' declaration  contained  a  count  upon  a  guar- 
antt'c  to  a  firm  given  by  defendant,  and  on  the' 
faith  of  w.iich  goods  were  alleged  to  have  been 
supplied  to  the  person  therein  nameil.  Defend-  ' 
ant  demurred  to  the  count,  and  it  was  adjudged 
bad  l)ecause  it  did  not  thereby  appear  that  the 
plaintiffs  were  the  persons  who  composed  the 
firm  when  the  goods  were  supplied  under  the 
guarantee. 

Xeal  et  al.  v.  Henry,  2  N.  S.  1).,  46. 


81.  Name  of  parties    Party  served  same 

name  as  dufendant—If  the  party  who  has  been 
served  witii  process  and  appeared  to  defend  the 
action  bears  the  same  name  as  the  partj-  proved 
to  be  liable,  the  plaintiff  is  entitled  to  a  venlict 
unless  the  party  so  served,  Ac,  shows  that  he  is 
not  the  proper  defendant. 

Thayr  v.    Vaiirf,  '2  'J'lioni.,  'JtiO. 

82.  \on-Joinder  of  party  as  delendant— 

Objection  must  be  taken  by  plea  in  abatement 
— Action  was  brougiit  on  a  joint  and  several 
promissory  note  made  by  four  promissors,  one 
of  wiiom  was  dead.  The  action  was  brought 
against  the  three  survivors,  the  declaration  set- 
ting out  the  note  as  made  by  the  three  defend- 
ants, naming  them,  "together  with  one  John 
Xass,"  the  deceased  promi-^^sor,  but  it  di  (  not 
add  that  he  was  dead,  or  show  any  ;c.-..m  why 
he  had  not  been  made  a  defcu'l.^.n,.  A  verdict 
was  taken  for  plaintiff  by  consent,  and  a  rule  to 
set  it  aside. 

H'ld,  that  the  objcctioii  was  one  that  should 
iiave  been  taken  by  plea  in  abatement,  and  could 
not  l)e  made  a  ground  of  objection  to  the  ver- 
dict for  plaintifV. 

McKeen  v.  .Vavf,  3  R.  &  C,  2m. 

83.  \on -Joinder  of  party  as  defendant 

Objection  need  not  be  taken  by  plea  in 
abatement  or  raised  by  demurrer  —  Wheie 
])laintiff  sued  two  out  of  three  makers  of  a  joint 
and  several  promissory  note,  alleging  the  making 
by  the  third,  Imt  not  alleging  that  he  was  out  of 
the  jurisdiction  of  the  Court, 

//i  Id,  that  this  was  a  fatal  ol)jection  to  plain- 
tiff's declaration,  and  that  it  did  not  re<iuire  to 
be  pleaded  in  abatement  or  raised  by  demurrer. 
Russell  V.  Grant  et  al.,  2  R.  &  C,  409. 

84.  \on-Joinder  of  party  defendant-Pica 

in  abatement — Pleading— Where  one  of  several 

trustees  was  sued  alone,  and  there  was  no  plea 

in  abatement. 

Held,  that  an  objection  taken  at  the  argument 

to  the  non- joinder  of  the  co-trustees  couM  not 

avail. 

Zwicker  v.  Ziuk,  2  N.  S.  1).,  2!) I. 

85.  Non>Joinder  — Plea  In  abatement  — 

The  tenant  in  dower  of  wihlerness  land  having, 
witli  the  consent  of  C.  R.,  one  of  the  reversion- 
ers, sold  all  the  hardwood  timl)er  growing  upon 
the  land  to  \V.  H.  H.,  and  allowed  the  same  to 
be  removed  by  the  purchaser,  contracted  a 
second  marriage  with  C.  S.  After  the  death  of 
C.  R.,  plaintiffs,  as  reversioners,  without  joining 
the  heirs  of  C.  R.  brought  an  action  of  waste 


lOli 


PLEADING. 


101(> 


agi'iinst  the  toiiant  in  lUiwer,  C.  S.,  Iter  Iiusbaiid,  ' 
unci  \V.  H.  H.  tlie  purchaser,  claiming  damages  j 
f(ir  the  injury  to  the  land  l)y  the  removal  of  tlie  ] 
timber.  Tlie  .Judge  who  tried  the  cause  having  i 
non-suited  the  {ilaintitFs,  and  a  rule  having  been  i 
taken  to  set  tiie  same  aside,  I 

III  Id,    (1)   tiiat  all    the   persons    entitled    as  | 
reveisioners,   should   have   been   joined   as  co- 
plaintiffs,  but,  as  non-joinder  can  only  be  taken  j 
advantage  of  by  jdea  in  abatement,  and  no  such 
j)lcii  was  ])leaded,  the  non-suit,  if  ordered  xol'lii  | 
on  tiiat  ground,  could  not  liave  been  sustained. 
TituM  (I  a/.  V.  SuHh  ft  aL,  .S  N.  S.  1).,  497. 


86.    Xon-Jolnder— Suit  by  two  out  or  three 

obligees — No  allegation  of  the  death  of  the 
third—  A  bond  was  made  to  three  obligees,  one  i 
of  wliom  had  died  before  tlie  action,  whicli  was  ! 
brought   by    tlie  surviving    ol)ligees,   antl    tlie 
executrix  of  the  deceased  oliligee.      At  the  trial  ( 
jjlaiiitifTs'  counsel  obtained  leave  to  strike  out 
the  name  of  the  executrix.     Tliere  was  noallega- 
tifiii    in   the  writ   of   tlie  death  of  one   of  tiie  i 
obligees,  but  evidence  of  the  fact  was  given  at 
tlio  trial. 

Hi /(I,  that  the  omission  in  the  writ  was  fatal, 

and  tliat  the  verdict,  by  consent  for  plaintiffs, 

must  be  set  aside.  ■ 

Jilai-k  (.1  (tl.  V.  Bai-Ks,  .S  R.  &  <i.,  .S,") ; 

2C.  L.  T.,60.S. 

S!.    Notice  of  non-acceptance— Demurrer 

for  failure  to   allege— I'laiiititfs,  as   indorsees, 
sued  defendant  as  drawer  of  a  foreign  bill,  al-  \ 
IcL'ing  tiiat  the  bill  was  iluly  presented  for  ac-  , 
cciitance    and    clisiioiiored,  and    defendant    had 
not  any  effects  in  the  liands  of  tiie  drawees,  nor  \ 
any    reasonable   ground   for  expecting   that   he 
would  have,  or  tliat  the  bill  would  be  honored,  j 
and  tiiat  defendant  had  sustained  no  damage  by 
reason  of  having  no  notice  of  the  non-acceptance,  ■ 
Defendant  demurred  on  the  ground  that  plaintiff 
was  bound  to  give  notice  to  defendant  of  non- 
acceptance,  or  hold  the  bill  till  due  and  again  \ 
present   it   for  payment  before  suing,  and   to 
allege  accordingly.      Demurrer  overruled. 

S'ayntr  tt  al.  v.  Hoira/f,  3  R.  &  (J.,  267.  \ 

8S.     Nunquam  Indebitatus— What  put  in 

issue  by — Defendants,  in  an  action  on  a  policy 
of  insurance,  pleaded  with  fifteen  other  pleas 
iiiinqiinm  iiKtiKita/ni,  and  two  pleas  alleging  ! 
tliat  tiie  action  had  not  been  brought  within  six  ; 
months  as  re(|uired  by  a  condition  in  the 
policy  ;  but  there  was  no  plea  denying  the  mak- 
ing of  the  policy.  Plaintiff,  relying  on  the 
want  of  a  plea  traversing  the  making   of   the 


policy,  did  not  put  it  in  proof,  and  defendants 
failed  to  produce  it,  to  jirove  the  condition. 

//till,  tiiat  the  ])laintitf  could  not  be  put  to 
the  proof  of  the  policy  by  tlie  plea  of  numiuum 
iiidehi/alu-1,  but  that,  under  such  plea,  though 
perhaps  demurrable,  the  defendants  might  liave 
given  evidence  of  the  alleged  condition  liad  tiiey 
been  in  a  position  to  do  so. 

(^huiin,  whetlier  tlie  plea  of  minquam  iiidild- 
/a/us  was  not  bad. 
liarn//  v.  I<ola/id  liixk  Ins.  Co.,  1  R.  &  (i.,  •21.->. 

80.    Discovery  of  new  defence  after  picas 

pleaded  —  Defendant  pleaded  to  an  actimi 
brought  against  him  as  maker  of  a  promissoiy 
note,  and  an  applicaticm  was  made  to  set  aside 
liis  pleas.  Defendant  subsequently  becunie 
aware  of  tlie  existence  of  evidence  whicli  would 
show  payment  of  the  note  sued  on  by  the  payee, 
and  ajiplied  on  affidavit  to  the  learned  .Judge, 
before  whom  the  motion  to  set  aside  his  picas 
was  heard,  for  leave  to  examine  a  witness  (Hi 
this  point.  The  aiiplication  was  refused,  and 
the  pleas  were  set  aside. 

On  a]>)ieal,  an  onler  was  granted  for  the 
examination  of  the  witness,  and  the  evidence 
when  taken  going  to  prf)ve  payment  of  the  mite 
sued  on,  as  stated,  the  order  setting  aside  the 
pleas  was  discharged  ami  the  cause  sent  to  trial. 
Costs  to  abide  the  event. 

Mirchanls  Hank  v.  JJcWo/f,  G  R.  &  (i.,  'JS8 ; 

6  C.  L.  T.,  452. 

90.  Payment  into  court-EITect  of-Pay- 

ment  into  Court  does  not  admit  the  full  claim  of 
plaintiff,  but  only  the  liability  of  defendant  to 
the  amount  so  paiil  in,  and  if  the  plaintiff  would 
recover  beyoml  that  amount  he  must  prove  that 
he  is  entitled  to  do  so. 

nodije  v.  ir.  ,t-  A.  li.  Co.,  2  X.  S.  1).,  "137. 

91.  Pay  ment  -Plea  of-A  plea  of  payment 

does  not  admit  the  plaintiffs  claim,  as  set  out  in 
the  particulars  indorsed  on  the  writ. 

Muli'aly  v.  JJUloit,  2  Thoni.,  420, 

92.  Payment-Plea  of-When  the  plain- 
tiff, in  his  particulars,  omitted  to  give  defendant 
credit  for  a  payment,  and  thus  claimed  a  larger 
balance  than  was  actually  due,  the  defendant  is 
not  justified  in  putting  in  a  plea  of  payment, 
without,  at  the  same  time,  confessing  the  amount 
he  admits  to  be  due. 

Chipni'in  v.  Shaw,  2  Thorn.,  428. 

93.  Payment  Into  court— Wlthdrawing- 

The  Court  may  allow  a  plea  of  payment  into 
Court  to   be   withdrawn   when   pleaded  under 


1017 


PLEADING. 


lOl.S 


inisiako.     In   granting   a    rule   to    witluliiiw   a 

pU'iiiling,    tlie    <"(>uit    may   inipo.su    ioa!sonal>le 

ti.'rnis. 

MrKny  v.   Ilumiltnii,  .lanics,   I'l.S. 

04.  Payment,  plea  of— Accord  and  satis- 
faction not  sufficient  to  support  —  I'laintiti' 
lii'Dnght  action  for  §84.33  for  work  done,  itc, 
fill-  defendant,  to  which  <lefendant  pleaded  pay- 
iii<:iit  after  action  hrougiit.  It  appealed  in  proof 
that  wtiile  phiintifV  was  in  prison  on  a  ciiarge,  tiie 
nature  of  whicli  was  not  disclosed,  defendant 
iililained  from  iiim  a  written  acknowledgment  as 
fi)!lo\vs:  "This  day  I  have  settled  all  matters 
of  account  and  the  suits  brought  against  me  by 
Joliu  McCabe,  for  §84.33."  (.Sgd.)  "  V.  H.  Mc- 
Nutt."  The  signing  of  this  was  followed  by 
the  payment  of  fifty  cents  by  the  defendant  to 
plaintitf,  wliicii  the  Cou'ity  Court  Judge  held  to 
he  sutKcient  under  the  plea.  Yet  he  gave  the 
plaintilf  judgment  for  ten  cents  to  enable  him  to 
tax  sunnnary  costs.  The  Court  set  the  judgment 
aside  and  remitted  the  case  to  the  County  Court. 

/'<)•  Ritchie,  K.  J.— 

I  do  not  think  the  defendant  can  possibly 
succeed  under  a  plea  of  payment.  It  is  only  a 
payment  of  a  part  and  seeina  to  bo  rather  a  case 
of  accord  and  .satisfaction. 

JAcAVC  V.  MrCahf,  2  R.  A:  (i.,  T,-?.. 

95.  Particulars— Sufficiency  of— 

Held,  objection  iiaving  been  taken  to  tlie 
Kutliciency  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, 

Traay  v.  Youii;/,  o  R.  &  (!.,  381. 
AtBrmed  on  appeal  to  the  Supreme  Court  of 

Canada,  17lh  Fihruary,  1SS5. 

Cas.  Digest,  8"2. 

96.  Perpetuating  testimony  —  Sufficiency 

of  bill— Plaintiffs  alleged  in  their  bill  that  one 
of  the  defendants  accepted  and  executed  a  lease 
fur  fourteen  years,  determinable  on  six  months' 
iiiitii.e,  that  notice  was  given,  but  the  period 
hiul  not  expired  ;  that  said  defendant  intended 
to  coiitest  the  right  of  the  plaintiffs,  and  set  up 
a  title  in  the  other  defendant  to  defeat  the  plain- 
tiffs ;  and  while  this  litigation  was  threatened 
no  action  could  at  present  be  brought,  and  that 
the  evidence  of  a  certain  witness  would  be 
ncuessary  and  material  to  enable  them  to  estab- 
lish tills  claim  ;  that  he  was  aged  and  about  to 
leave  the  Province,  and  though  they  could 
♦ilitain  his  evidence  now,  they  might  not  be  able 
to  do  so  at  the  time  of  an  action  hereafter 
Itrought. 


//('/'/,  that  sufficient  had  been  set  out  to  sus- 
tain plaintitVs'  bill  to  perj)etuate  testimony,  and 
the  bill  was  iu)t  demurrable. 

Sleil  Co.  Caiiaila,  ( l.lil. )  v.   I'atiri'.  vj  ((/, , 

R.  K.  1).,  4-.'s. 

97.  Pleading  before  expiration  of  time 

for  —  Trial  —  A  defendant  pleading  before  the 
expiration  of  the  period  allowed  by  law  will  not 
entitle  jdaintitf  to  place  the  cause  on  the  trial 
docket  within  the  period  allowed  the  defendant 
ti'j  plead, 

Hutrhinion  v.   Wilham,  .lames,  387. 

98.  Pleadings  —  Refusal  of  non-suit  — 

Judgment  for  want  of  prosecution  set  aside 
— Cause  sent  back  for  new  trial— Amendment 
of  record— Costs  —  In  an  action  by  plaintiffs 
against  defendant,  as  surviving  covenantcjr,  for 
rent  due  on  a  lease,  defeiulant  pleaded  a  plea 
which  was  a  substantial  admission  of  plaintiffs' 
case.  At  the  trial,  plaintiffs'  counsel  took  the 
ground  that,  on  the  pleadings,  defendant  should 
begin  and  rested.  Defendant's  coun.sel  refused 
to  go  f)n  and  moved  for  a  non-suit.  Plaintitl's' 
counsel  having  refused  to  liecome  non-suit,  tiic 
learned  .fudge  reserved  judgment,  and  sid)se- 
<iuently  gave  judgment  in  favor  of  defendant 
for  want  of  prosecution. 

//*/'/,  that  the  judgment  could  not  be  sus- 
tained. 

The  pleadings  were  struck  out  and  the  cau.se 
sent  back  for  a  new  trial,  but  inasmuch  as  the 
Court  were  of  opinion  lliat  plaintiti's'  coun.sel 
should  have  moved  to  amend  the  record,  witiiout 
costs. 

Vifktnj  t>  al.  v.  Prire,  7  R.  &  C,  r)13  ; 

8  C.  L.  T.,(il. 

99.  Plea  "not  Indebted  as  alleged"  Ir- 
regular—  A  plea  that  "the  defendant  is  not 
indebted  as  alleged  "  is  irregular  under  the  new 

'  Practice  Act  which  ie(iuires  the  particular  de- 
fence on  which  a  party  relies  to  be  pleaded. 
j  liroii'H  V.   Wallaci:,  James,  'J04. 

100.  Plea  of  documentary  title-Proof  of 

possessory  title — Defendants,  at  the  argument, 
relied  on  a  title  by  possession,  but  their  plead- 
ings set  up  only  a  documentary  title,  and  the 
evidence  of  title  by  possession  was  not  submit- 
ted to  the  jury. 

Held,  that  the  verdict  for  defendant  could  not 
be  sustained  by  showing  that,  under  the  evi- 
dence, defendant  had  acquired  title  by  posses- 
sion. 

Emiit  V.  IVatermav,  4  R.  &  (;.,  •2,~'>, 


1019 


PLEADIiNG. 


1020 


101.  Plea  of  IndorHcment-  Replication  to 

—Tender  df  "  balam-e  due  "  held  bad  —  A  bill 
(if  I'xcliiiiigi-  (liiiwii  liy  tlie  Aniiifist  IJoot  I'c  Shoe 
<'<).  (Ill  the  liiiii  (if  I),  it  Co.  WHS  iiulorst'il  "  I'liy 
to  tilt;  onk'i'  of  tlir  Bunk  of  \ova  Scotia, 
Ainliurst,"  and  by  the  agent  of  the  Hank  at 
Amherst  "  Pay  to  tlie  order  of  the  Hank  of  Nova 
Scotia,  Halifax,  for  collection."  The  bill  was 
acccjitcil  by  1).  it  Co.,  but  was  not  jtaiil,  aiul  was 
n'tunu'il  to  Ainheist.  While  the  bill  was  still 
in  the  hands  of  the  agency  of  the  bank  there  it 
was  purcliased  by  defendant  antl  was  handed 
over  to  him,  but  without  any  indorsement  being 
made  other  tiian  tliose  already  on  the  liill.  De- 
fendant being  sued  by  jdaintitf  as  assignee  of 
l>.  &  Co.,  wlio  had  become  insolvent,  for  a  bal- 
ance of  account  due  that  (inn,  pleaded  the  bill 
by  way  of  set-otl'  ami  tendered  an  amount  as  the 
balance  due  the  estate  of  1>.  &  Co. 

As  to  tlie  plea  of  set-ofl'  plaintitf  joined  issue 
without  replying  specially. 

HM,  per  McDonald,  Smith  and  Weatherhe, 
J.T. — That  the  bill  having  been  specially  indorsed 
to  the  bank  could  not  be  transferred  to  the  de- 
fendant except  by  indorsement. 

Per  McDonald,  C.  J.,  and  Ritchie,  J. — That 
if  plaintiff  wished  to  deny  the  indorsement  he 
should  have  replied  specially,  and  that  by  merely 
joining  issue  he  could  not  put  defendant  to  proof 
of  tlie  indorsement. 

Pfr  Smith,  Weatherbe  and  Ritchie,  JJ., 
McDonald,  C.  J.,  concurring,  that  the  tender 
made  by  defendant  was  bad. 

Forsyth  V.  Lanruirc,  7  R.  &  G.,  148  ; 
7  C.  L.  T.,  174. 

102.  Plea  of  nul  tiel  record— Production 


under  tlie  Statute,"  was  not  suiiieient  pniof  of 
tlie  <leclarati(m. 

It  being  admitted  tiiat  no  execution  had  ever 
been  issueil. 

Jfil'l,  <i/x>,  tliat  if  defendants  could  avail 
themselves  of  that  defence,  plaintiffs  could  iidt 
recover  ;  but  that  the  defence  was  not  available, 
not  having  been  plcade.i. 

McdiK  a  id,  V.  Ptrk'uK  <t  a/.,  20  N.  S.  K., 

(8R.  &(i.),  l.-)4: 
S  C.  L.  T.,  .ST.-,. 

103.  Plea  or  payment— A  part  payment 

does  not  support  a  plea  of  payment  and  .satis- 
faction. 

Boudrot  V.  Donomn,  2Thoin.,  78. 

104.  Plea  of  release  of  action -Novation 

—A  general  plea  of  release  of  action  is  Lad,  if 
the  release  is  not  pleaded  as  being  made  under 
seal. 

A  plea  setting  forth  an  agreement  between 
plaintiflF  and  defendants,  that  plaiiitilF  sliuuld 
accejit  third  parties,  as  paymasters,  for  the 
amount  of  his  chiini  against  defendants,  that  said 
third  parties  agreed  to  pay  the  same  to  plaiiitifl', 
and  that  plaintiff  accepted  the  said  third  par- 
ties and  released  defendants,  is  good. 

Cozem  V.  Witr  a  uL,  I  Old.,  lL'3. 

105.  Plea  of  right  of  way— Denial  that 

party  claiming  is  entitled  to,  sufficiently  puts 
in  issue  the  claim — In  order  to  actniirc  a  right 
of  way  by  enjoyment  for  twenty  years,  it  must 
be  proved  that  the  claimant  has  enjoyed  it  for 
the  full  period  retjuired,  nx  ofriijhl,  and  if  there 
lias  lieen  unity  of  possession  for  all  or  any  part 


of  bail-piece  is  not  a  sufficient  answer  to  a  plea  i  of  that  time  the  claimant  will  not  have  enjoyed, 
of  nul  tiel  record — In  an  action  on  an  alleged  «<  of  r'njhl  the  easement,  but  the  soil  itself.  A 
recognizance  of  bail,  set  out  in  jdaiiitiffs"  dcclara-  !  defence  on  this  ground  to  a  claim  of  right  of  way 
tion  as  entered  into  by  the  defendants  to  resjjond  I  is  sulhciently  put  in  issue  by  a  plea  that  the 
a  judgment  to  be  finally  given  on  a  rule  nixi,  I  claimant  is  not  entitled  to  such  right  of  way,  as 


taken  under  the  .Statute  under  the  former  prac-  j  alleged 
tice,  the  defendants  admitted  the  making  of  the 
bail-piece,  which  was  signed  by  them  before  R, 
J.  U.,  as  Commissioner,  admitted  to  be  such, 
who  also  took  their  affidavits  of  justiucation, 
and,  being  I'rothonotary,  had  them  tiled  with 
the  bail-piece,  but  tlie  recognizance  was  not  re- 
duced to  writing,  nor  did  it  appear  upon  any 
record  of  the  Court. 

Defeiulants  pleaded,  among  other  tilings,  that 
there  was  no  record  of  the  alleged  recognizance 
of  bail  remaining  in  the  Court  as  it  was  set  out 
in  the  plaintiffs'  declaration. 

JIM,  that  the  production  of  the  bail-piece 
alone,  worded  "  to  respond  the  judgment  to  be 


Smith  v.  McDonald,  '.i  R.  iV.  C,  L'83. 

106.    Plea  of  tender- Statutory  plea  of 

payment  into  court  —  Distinction  —  I'laintiff 
claimed  in  his  writ  .^100.  Defendant  pleaded  a 
tender  of  .SJ8.'23  in  the  usual  form,  alleging  that 
it  Mas  sufficient.  I'laintiff  replied,  denying  the 
tender,  denying  that  the  amount  was  sutlicient 
and  denying  that  plaintitf  was  always  ready, 
alleging  a  demand  and  refusal  of  the  aninuut. 
No  evidence  was  given  that  the  money  had  been 
paid  into  Court,  though  it  was  so  alleged  in  the 
plea.  The  Judge  of  the  County  Court  found 
that  .?58.'23  was  due  and  that  the  tender  was  not 


finally  given  herein  on  a  rule  m'n  for  a  new  trial  {  good,  not  having  been  made  to  a  person  autiio- 


1021 


PLEADINCf. 


1022 


n/ii\  to  I'l'L'i'ive  it.  lK'feii<liiiit  ai)pi'iik'il  on  tlic 
^'iiiiiiid  that  the  pliiiiititF  hiiviiig  dfiiit'il  that  tliu 
{iijioiiiit  |iai(l  ill  was  siitlicit'iit,  am)  tiiu  ilmlge 
having  found  tliat  it  \va»,  tliu  jutlgnient  slunild 
iiiivi'  liirii  for  tlif  defendant. 

//■/(/,  that  tlie  j)lca  was  properly  treated  as  a 
plea  of  tender,  and  the  Judge  having  found  that 
no  valid  tender  was  made  judgment  was  prop- 
erly given  for  the  plaintitT  and  the  appeal  must 
lie  dismissed  with  eosts. 

Oiiimm  V.  Tdijlor,  W  H.  AC,  158. 


111.     Possession  or  land      Defendants 

pleaileil  1st  "  tiiat  the  land  is  not  the  land  of 
the  plaintili's"  and  L'nd  "that  the  land  is  the 
land  of  the  defendant.''  I'laintitl's  gave  no  proof 
of  possession  of  the  land  in  ipiestion. 

JIi III,  that  under  the  jileadings  there  being  no 
plea  expressly  denying  plaintifl's'  possession,  the 
plriintiffs  were  relieved  of  the  burthen  of  proving 
possession. 

Church  W'arih  11"  of  Fnhnoiilh  v.   Vawjhau, 

•_>H.  &  (•.,4:tii. 


lOt.    Plea  offender  without  payment  Into 

Court— I'laintitr  sued  for  damages  for  the  un- 
liiwful  detention  of  eertain  lundier  ;  defendant 
pleaded  a  lien  for  wharfage  and  plaintitT  replied 
a  ten<ler  of  an  amount  sutlieient  to  eover  the 
defendant's  elaim. 

It  was  contended  th.it  the  latter  plea  wns 
iiisiitlieient,  as  there  was  no  payment  into  eourt 
to  satisfy  the  debt  in  respeet  of  which  the  lien 
was  claimed, 

//(/(/,  that  the  lien  was  discharged  by  the 
tender. 

JJat-inon  V.  Mulcahy,  7  K.  &  (t.,  209  ; 
7  C.  L.  T.,  3'-'4. 

108.  Pleas  In  bar— Pleas  in  abatement- 
Verification — Defendants  having  pleaded,  that, 
although  plaintiffs  formerly  possessed  a  corpo- 
niie  existence  and  character,  they  had  lost  that 
cliaracter  and  existence  before  the  connnence- 
meut  of  the  action,  plaintitTs  obtained  a  rule  ' 
ui-it  to  set  aside  these  pleas  as  being  unverilied 
pleas  in  abatement,  and  iniprojierly  pleaded, 
but  the  Judge  at  Chambers  discharged  the  rule. 
Fniui  this  onler  the  plaintiffs  appealed. 

Hi  III,  that  the  pleas  were  not  in  abatement, 
hut  in  substance  and  effect  pleas  in  bar. 
Atho/c  Loili/i-  of  Fr< imayoii",  Halifax, 

V.  IVilliamson  tt  uL,  1  X.  .S.  I).,  171. 

109.  Pleas,  subscribing -Appearance  In 

person — When  pleas  were  pleaded  by  defendant 
in  person,  and  the  pleas  tiled  were  subscrilied, 
but  the  ones  served  were  not. 

Hi  Id,  thougli  an  irregularity,  it  did  not  make 
the  pleas  a  nullity  and  entitle  plaintiff  to  judg- 
ment by  default.  Notice  of  appearance  not 
necessary  when  a  party  apjiears  in  jierson. 

C)-os'<klll  v.  Allison,  'J  Thorn.,  "288. 

110.  Plea  that  defendant  after  tbe  cause 

'if  action  accrued,  being  a  trader,  became  insol- 
vent within  the  meaning  of  the  Insolvent  Act  of 
IWill,  and  made  an  assignment  under  the  Act. 

HM,  bad  on  clemurrer. 

McCully  J.,  ilixsi  iitinij. 

Murray  tt  al.  v.  Jiosi,  -J  R.  &  t".  154. 


112.  Proceedings  to  forfeit  gold  areas- 
Sufficiency  of  pleading — 'I'he  Commissioner  of 
works  and  mines  to  an  action  of  trespass  pleaded 
proceeilings  taken  to  forfeit  the  areas  in  (juestion. 

7/i/(/,  .that  the  allegation  that  "  no  per.son 
could  be  f(nind  upon  whom  to  make  service  of 
the  notice''  of  process  to  f(,rfeit  was  sufficient 
without  alleging  that  no  person  could  be  found 
in  the  g«dd  district  within  which  the  areas  were 
situated,  and  that  a  j)lea  setting  out  the  pro- 
ceedings taken  in  substantially  the  terms  of  the 
Act  was  sufficient. 

H'alluct  V.  Vrttlmuii,  0  K.  i*c  U.,  040. 

113.  Prolixity,  unnecessary,  matter  for 

taxation — 

Hi  Id,  that,  under  the  Judicature  Rules,  un- 
necessary length  is  a  matter  which  can  be 
effectually  dealt  with  on  taxation  of  costs,  as 
provided  by  Order  19,  Rule  *2. 

Alio,  that  the  pleas,  though  expanded  at  great 
length,  were  not  necessarily,  on  that  account, 
embarrassing. 

McDonald  v.  Clarkt,  I'O  X.  S.  K., 

(8  R.  &(;.),  254; 
8C.  L.  T.,  401. 

114.  Promissory  note— .4ctlon  by  Indorsee 

— Allegation  as  to  time  of  indorsement — In  an 
action  on  a  jjioniissory  note,  by  the  indorsee 
ag.'iinst  the  maker,  the  declaration  should  allege 
that  the  note  was  indorsed  before  it  became  due. 
Chi/iiiian  V.  liitrhii-,  1  Old.,  710. 

115.  Puis  darrein  continuance  and  protest 

that  there  waa  no  fraud— I'laintiff  brouglit  an 
action,  February  "iOth,  1S70,  on  two  promissory 
notes,  with  a  count  for  fraud,  under  section  136 
of  the  Insolvent  Act  of  187.").  Defendant  had 
become  insolvent  in  December,  1875,  and  ob- 
tained from  his  creditors  a  deed  of  compositiou 
anil  discharge,  which  was  duly  coutirnied  Sep- 
tember Uith,  1870,  previously  to  which  date 
l)laintifl'  had  accepted  a  composition  on  the  notes 
sued  on  ;  but  plaintitf  had  not  signed  the  deed. 
Defendant   having    pleaded    March    8tli,    1870, 


1028 


PLEADING. 


1024 


Wnllaa   v.  lioxxovu  -^.  *'.  R.,4HS, 


added  ft  plwi  ScpU'iiibor  '-Tuli,  IHTS,  .selting  up  '  onU-f  of  \\w  Coiut  IhIow  was  one  from  wlikliaii 

the  deed  and  llie  acceptance  of  a  ompositnm,    appeal  would  lie. 

Iiut   did  not   plead    the   <lisclmrge  y-»/.i  ilarn  in  \      ■_>.     ReveiNinj;  the  judgnu'nt   helow,   that  de- 

(■oii/iiivaiiir,  his  uonuHel  apprehending  that  the  j  feiidant  having  neglected  to  jilead  Iuh  dis.^liarge 

etl'ect   of  .such   a   plea  would  he   to  confeNS  the  i  hefore  judgment,  as  he  might   have  done,  wa.s 

fraud   charged    in    the  declaration.     The  cause   estopped  from  setting  it  u)>  afterwards  to  defeat 

was  tried  in  April,   1SS(»,  when  a  verdict   was    the  oxeci'.tion. 

found  for  the   phiintifT  for  the   lialance  of   the 

notes  sued  on,   hut  the  jury   aciiuitted  the  di?- 

fendant  of  the  charge  of  fraud.     Defendanis  then 

took  ft   rule    »/.<i  to   slay   proceedings,  on    the        118.     Release  Of  actiOII- Plea  Of— A  gen- 

grouiul    that    the    debt    had    lieen    discharged,    eral  plea  of  release  of  action  is  hail,  if  the  releasr 

Uule  nil!  discharged  with  costs.  !  is  not  pleaded  as  being  made  under  seal. 

/'()•  Ritchie,  K.  t).,  that  the  defendant  couhl       A  plea,  setting  forth  an  agreement  l)etwecM 

have  pleaded  the  discharge  ;)»M  (/«»rei«  fO)i^JH«-    plaintiff  and  defendants,  that  plaintiff    sIkiuIiI 

anir,  with  a  simple  protest  that  there  wa.s  no   accept    tiiir<l    pnrticsi,  as  paymasters,    for  l\w 

fnuiil.  amount  of  his  claim   against  defendants,   thiit 

Harrin;i>un  v.  //'(V/- )•,•_>  R.  &  (!.,  IH.S;    said  third  parties  agreed   to  pay  the  same  td 

1  V.  L.  'r.,(3fi,S.  I  plaintifl",  and   that  plaintiff  accepted   the  siiiij 

third  j)arties  and  released  defendants,  is  goml. 


11((.    Puis  darrein  continuance— Costs — 

I'laintiffs,  as  executors,  brought  action  for  rent, 
claiming  .'?.S8,  there  being  less  than  !?.S0  due,  even 
supposing  the  claim  to  be  valid.  Defendant 
pleailed,  among  other.s  an  eipiitable  plea,  setting 
out  facts  on  which  judgment  was  afterwards 
given  by  the  Ki|uity  t'ourt,  and  the  judgment 
was  then  pleaded  puis  ilarriiii  con/inuaiice. 
I'iaintiff  confessed  the  plea  and  moved  for  costs 
down  to  the  plea  pais  durri  in,  d-c,  to  which 
defendant  assented,  and  declaration  costs  were 
taxed.  The  (V.urt  allowed  the  taxation  to  be 
reviewed  and  ordereil  sunnuary  costs  to  be 
taxed,  although  the  facts  allowing  that  less  than 
$H0  was  <lue  could  be  gathered  only  from  atli- 
davits  introduced  after  the  taxation. 

Marsha//  il  a/,  v.  S/ee/e,  1   R.  &  C,  '284. 


in.  Puis  darrein  continuance— Discharge 

— Suit  commenced  before  assignment— Plain- 
tiff recovered  judgment  against  defendant  after 
plea  puis  (lam-.iii  ivn/innonn.  of  composiiion  and 
disdiurge  under  the  Insolvent  Act  of  bStiU,  the 
suit  having  been  conunenced  before  the  assign- 
ment of  defendant  under  the  Act.  The  discharge 
was  contirmed  after  plea  and  before  trial,  but 
did  not  appear  to  have  been  brouglit  to  the 
notice  of  the  Court  in  any  way  at  the  trial.  On 
motion  to  set  aside  execution  on  the  judgment, 

Iltld,  that  the  defendant  must  have  the  ad- 
vantage of  the  general  provisions  of  the  law  in 
his  favor,  which  cancelled  the  original  indebted- 
ness, and  that  the  execution  ami  proceedings 
thereunder  must  be  set  aside. 

Wal/act  V.  Bosmm,  2  R.  &  C,  419. 
Oh  nppea/  to  the  Supreme  Cowl  of  Canada, 
He/d,  Strong,  J.,  diwentimj,  that  the  rule  or 


Cozent  v.  Wiereta/,  1  Old.,  I •.',(. 


Utf.    Keplevin  —  Avowry  for  rent-Kepli- 

cation  necessary — Defendant  in  replevin  avowtil 
for  rent,  and  plaintiff  did  not  rejdy,  relying  on 
the  statutory  replication  denying  the  fuct.^ 
alleged  in  the  plea. 

Hi/d,  that  a  replication  was  necessary  to  put 
the  cause  at  issue. 

Leave  given  to  the  plaintiff  to  (ile  a  rejilica- 

tion. 

Jiremner  v.  Ifa/Zace,  3  R.  &  C,  4Sl. 


120.  Replevin— Declaration  in    Tlie  writ 

alleged  oidy  an  unjus'..  detention,  and  no  unl;u\- 

ful  taking. 

//(/(/,  that  tlie  possession  of  defendant  being 

wrongful  no  demand  was    requisite   to  sustain 

replevin. 

]Va//ace  v.  Laidlaw,  '2  R.  &  (i.,  4'-'ii; 

•_'('.  L.  T.,  •.'().•!. 

121.  Replevin  -  Pleadings  in-Piuintlfr 

brought  an  action  of  replevin  for  certain  guoiis 
seized  under  a  warrant  of  distress  for  water 
rates  claimed  by  the  city,  and  the  writ  allcgLiI 
an  unjust  detention,  but  contained  no  allegatinii 
of  an  unlawful  taking.  Defendant  denied  tiic 
detention,  and  pleaded  a  secoiul  plea,  justifying 
under  a  distress  for  water  rates,  to  which  plain- 
tiff replied,  disputing  the  liability. 

//lid,  that  as  there  was  no  complaint  in  tlie 
writ  of  an  unlawful  taking,  and  no  proof  of  a 
demand  of  the  goods  by  plaintiff,  ho  could  not 
recover  in  this  form  of  action. 

Iwi/ii  V.  Greemi'ood  ct  a/.,  2  R.  &  (i.,  2  ; 
1  C.  L.  T.,  192. 


102.') 


PLEADING. 


102G 


I'i'J.      Kvplicntlon    -  When    IIOCCHMary  I'n-  MoDonalil,   C.   J. -It    pliiintifY   wueks  Ici 

will  11  Ihf  pliiiiitiff  wisliuM  totiviiiil  thf  t.'fffft   >pf  reuovtT  mi  the  ground  tliiil  when  lit-  paid    the 

ill  fill. lint's  pleas  liy  new  matter  he  iinist   reply,  liiuney  lie  was  not   aware  of  farts  wliieh  he  siili- 

Siiiiili  V.  Sh  irnri  ii  III.,  •_•  'riioin.,  417.  .>.,'( | lien tly  <liseovereil,  lie  must  eoiiie  in  and  show 

that.      He  is  Ipiiiiiid  to  way  .so.     It  eaniiot  lie  lid 

H'.\.    ItCVCIIIH'  -lets     Action  for  penalty  for  '"  ''L-y'llected  fn.m  infweiue. 
(iolallOII  Of--l'laiiititr,  as  eoUector  of  colonial 
ii'Vi'iiiie.s  for  the   I'ort  of   .Sydnoy,    lirouglit    an 


.Iiiilgm"!it  for  plaintifTset  aside  and  new  trial 
ordered  with  leave  to  |)laiiitill' lo  anii'iid. 
L'nllnrt  V.  MiKiiii  ii  al.,  'JH)  X.  ,S.  ]{,, 

{H  K.  &(;.).  1. 

VHU    Seal    Absence  of,  must  he  pleaded 

Defendants  were  createil  a  liody  rorporate  for 
the  jnirpose  of  Ih'Iul,'  invested  with  the  tit  le  of 
the  County  Court  Ifoiise,  Halifax,  with  power 
to  eiilarge  and  improve  the  Imildinf,'  for  the  puli- 
lie  use  and  to  provide  all  lieeessary  aeeomnioda- 
tioii  for  the  ( 'ourt.s,  the  .Muiiieipal  Couneil,  ete., 
and  to  make.sueh  eontraets  as  were  neeessaiy  for 
that  purpose  from  time  to  time. 

Defeudaiits  employed  plaintill's  verlially.  to 
make  eertain  alterations  and  improvements  in 
the  Imililiiig,  eominj,'  within  the  class  of  woik 
that  they  were  aiithori/ed  liy  the  Act  of  Iiiior- 
poration  to  perform. 

//'ill,  following  ClriH-i  V.  Cni-kfiihl  Union,  1 
II.  C.  ('.,  ,S1,  that  as  the  work  doiuj  was  within 
the  ordinary  range  of  duties  of  the  defendants  a 
eontraet  under  seal  was  not  rei|uired. 

Al"!!.  that  if  the  alisence  of  a  contract  under 
seal  uiiiild  have  lieen  a  valid  defence  it  iniist 
li.ive  lieen  pleaded  in  oidci-  to  eiialile  defendants 
to  avail  themselves  of  it. 

Mflniu^li  it  III.  V.  ('onuniiitiomrx  of  Coiiri 
IIoii-i,  IIiii:iii.r,  •_'()  X.  .S.  R.,  (S  H.  \  (;.),  4;j(l; 

!»C.  L.  'I'.,  1I.>S. 


iirtiuii  against  defendant  for  the  (leiialty  incurred 
uiiiliT  Revised  .Statute.s  (,Srd  series),  c.  I  "J,  see. 
II.  liy  a  violation  of  the  revenue  laws,  and  oh- 
t.iiiii-.i  a  V(M'dii.'t. 

A  rule  ///'•/,  in  arrest  of  jiidgnieiit,  was  granted 
In  ilctcndalit,  on  the  following  i^rounds  : 

I'li'-t,  liecause  it  was  not  alleged  in  thedeclar- 
iitidii  that  the  action  was  lirouglit  at  the  inslaiice 
lit  till' hoard  of  revenue;  secondly,  liecause  the 
|i;iitiriilar  olleiice  alleged  to  have  lieen  coniiiiit- 
liil.  was  not  s|iecitied  in  the  writ  and  declaration. 

//'/'/,  that  neither  olijeetion  could  prevail. 
Till'  .Statute  provided  that  this  action,  thouyh  i  , 
liiiiiiLllit  for  a  penalty,  should  lie  Jirosecuteil  in 
thesiiiiic  manner  in  all  respec'ts  iw  an  action  for 
t!if  iciovcry  of  a  debt,  and  the  defendant  if  he 
wisliiil  to  take  advantage  of  the  tiist  ground, 
>!ioiilil  have  pleaded  it  as  a  matter  of  defence, 
wliiK- the  second  ground  of  olijeetion,  although 
iiiii|iii.stionalily  fatal,  if  this  were  a  ci-imiiial 
lUMsiiciitiiin  or  indictment,  was  of  no  avail  in  a 
|iiirrly  civil  action. 

Iti'toinluiit  also  took  out  a  rule  under  the 
st.ilute  to  set  aside  the  \-erdict,  and  for  a  new 
nil!  upon  the  ordinary  grounds,  liut  the  jury 
hiving  fiiiuid  for  the  plaintitl'  upon  all  the  issues 
iiftMrt.  the  Court  refuseil  to  discharge  the  verdict. 
Liiiiiiiril  V.  C'li'isii-'ll,  1  X.  S.  1).,  PJl. 

127.    Scaling  and  delivery  of  hond -How 

1'24.     KlllC   of    pleading -Every    pleading    P»t  "i  i«»'le--'riie  sealing  and  delivery  of  a  l.ond 
HUM  lie  an  answer  to  the  whole  of  what  i.s  ad-    '^'^'  1'"^   '"  ''*'*"'-'  '">'  "   I'''-'''  ''"'*   ''"^  defendant 
veiM-ly  alleged,  and  profcsseil  to   lie  an.swered  |  " '^'''  "^''^  '"'^'^'^  '^"'^  deliver  any  such  bond,'"  as 
tliticliy  ;    and  this  principle  is  not  affected  liy    *'''''  ''^-'^'l'''^''!  ""■ 
|«>yiiK.nt    into   Court    under   a  particular  jileiL  ^^"""  '•  ^^''"''  -   '^-  ^^''^  •""■ 

I  luistn,  K. .].,  iiouutinij.  I28.    Sealing  -Plcas  to  put  in  issue-De- 

l.iib    V.  Laii-.-iOii,  1  Old.,  (iti.S.     feiidauts  pleaded  as  to  certain  agreements  alle- 
ged to  have  lieen  made  liy  them  under  seal  that 

125.  Sale  of  goods  —  Action  to  recover  the  alleged  deeds  were  not  their  deeds,  and  they 
piice  paid  on  ground  of  non-delivery -Mu.st  did  not  umlertake  and  promi.se  as  alleged, 
be  plea  of  want  of  knowledge  of  non-delivery  llild,  that  under  4th  H.  ,S.,  cap.  'J4,  a.  1.V2, 
at  time  of  payment — Plaintiff  .sued  to  recover  an  olijeetion  could  not,  under  the  pleas,  lie 
money  paid  fur  trees  which  he  alleged  had  not  '  taken  to  the  authenticity  of  the  seals  atiixed 
I'ten  ili'livered  according  to  eontraet.  His  conn-  to  the  agreement  as  the  seals  of  the  defendant 
•^il  ciiiitciiilcd  that  at  the  time  the  money  was  '  company. 

l«i'tpliiiMtitl' had  11(1  knowledge  of  the  failure  to 'fr'n.'/ori/  v.  Tlit  Halifax  and  C.  Ii.  liailmiy  it- 
'''■''^^'^'i-  Coal  Co.  ct  al.,  4  R.  &  (i.,  4.W. 

''■'•  Ritchie,  .).— That  is  not  alleged.  The  Affirmed  on  appeal  to  the  .Supreme  Court  of 
'■'"111  1^  lor  the  non-delivery  of  the  trees,  but  |  Canaila,  HMh  Fi In-nary,  ISS.h  Cas.  Digest,  4.'U. 
'lie  eviilenee  is  that  the  bill  of  lading  was  not :      Leave  to  appeal  to  the  Privy  Council  refused 


tiiken. 


33 


I  3rd  Ajiril,  Ib'OO.     Cas.  Digest,  544. 


1027 


PLEADING. 


1028 


Vi%    8et-oflr-('annot  be  pleaded  to  ouhI 

juriHiUetion  WIicit  iiCoiiit  li.i«  no  jiirisilioliini 
to  tiy  a  i|UeHti(in  of  titlo,  ikfciHlunt  ciinnot.  oust 
till'  jiiriHiliction  to  I'lilortaiii  ii  (.laiiii  iiivolviiin 
no  c|ii<nti(iii  <if  titli',  l>y  pU'ailiii;.;  a  set-off  tliat 
involves  a  (Hiestion  of  title. 

Ci-'ii/fUon  V.  Liiidsiiy,  .'{  K.  &  <i.,  -43. 

ISO.     Sel-oir  -  JiMl^'ment  recovered  by 

third  party  after  eoinmeneement  of  action  and 
aHsigned  to  defendant — To  an  aetion  on  a  pro- 
missory note  defenilaiit  pleaileil,  l)y  way  of  net- 
off,  a  judgment  for  a  greater  amount  recovered 
against  jilaintiff  l.y  a  third  party  and  as.signe<l 
to  defenilanl  after  the  connneiRenient  of  plain- 
tiff's aetion. 

///'/,  that  the  i)lea  wan  had.  Kven  if  pksul- 
ahle  the  plea  could  only  l>e  to  the  further  main- 
tenance of  the  action,  and  not  in  har  to  the 
whole  action. 

Assuming  the  assignment  to  have  heen  made 
in  good  faith,  defendant  might  possihly  have  got 
the  henetit  of  it  on  apphcation  to  the  Court  in 
the  exercise  of  its  eiiuitahle  jurisdiction. 

McDonald  v.  X' rill. ,  4  K.  At;.,  191. 

131.    Set-off   rie  a  of   Defendant  pleaded 

a  set-off  to  |)laintiti"s  claim  for  goods  sohl  ami 
delivered,  ami  under  that  plea  gave  evidence  of 
a  sale  of  goods  to  ])laintiff  liy  the  defemlant  and 
ids  co-partner,  anil  an  agreement  made  lictween 
plaintiff,  defendant  and  ilefendant's  co-iiartner, 
that  j)laintiff's  claim  should  he  paid  in  goods 
from  the  ])artnerslni)  store.  The  County  Court 
Judge  gave  judgment,  for  defendant  on  this  evi- 
deu.e,  and  the  appeal  from  his  judgment  was 
(lisuiissc(l  with  I'osts. 

Ci'i'ii'-Ik  r  V.  (Initit,  "J  \\.  k.  (1.,  37". 

i:{'2.  Sct-off-Kepllcatlon -Where  no  rep- 
lication ha(i  licen  put  in  to  a  i>lea  of  set-off',  and 
one  had  heen  tendered  at  the  trial, 

//  Id,  tl)at  the  Judge  ought  to  have  received  it. 

(Jiduri:,  if  a  replication  is  necessary  to  such  a 

plea. 

Tol/in  v,  /.*(ui//, '2  Thorn.,  4(fJ. 


//'/'/,  that  there  was  no  need  ot  alleging  nr 
proving  special  damage. 

I'niiif  V.  Mail. nil,  :\  .\.  S.  1).,  ;il(i. 

131.    Stampings  Illcgal-Xo  plea  of,  but 

evidence  of  received  - 

//«/'/,  that,  although  theie  was  no  plea  of  in- 
sutlicieiit  or  illegal  stamping,  yet,  as  evideii.r  i,l 
illegal  stamjjing  had  heen  received  at  tlic  tilid 
without  ohjection,  the<iue»tion  of  the  h'galily.it 
the  stamping  was  for  the  consideration  of  tlif 

Wni.r^  v.  McCullorh,  2  K.  HC,  74. 

13.1.    Statement  of  claim -Condition  pre. 

cedent— 

//(/(/,  that  the  statement  of  claim  coiitainin^; 
an  allegation  that  the  "  said  property  w.is 
ac(|uired  hy  tiie  said  A.  J.  1'..,  during  coveituic 
otherwise  than  through  her  sai<l  hushaml,  iiml 
hehmging  to  her  under  and  liy  virtue  uf  thu 
.Married  Women's  Property  Act  of  1S.S4,  in  lar 
own  right,  anil  to  which  she  claimed  loin-  vn 
titled  under  said  Act,"  the  defendant  washdim.l 
to  plead  iion-performanee  of  the  condition  |pre- 
cedent  recpiiring  the  tiling  in  the  Registry  "I 
Deeds  of  a  consent  in  writing  hy  the  hushainl,  if 
he  wished  to  take  advantage  of  it. 

/'.;•  McDonal.l,  .l.--Thal  the  jilaintiff's  >l.it. 
ment  of  claim  implied  an  averment  of  tlic  |iir 
formance  of  the  condition  (irecedenl  nccessinytM 
maintain  her  case,  and  thai  tiu'  defendant  niiM 
specify  di.stinclly  any  condition,  the  perfoinwii' 
,  of  which  he  intended  to  contest. 

r.r  Ritchie  and  Weatherhc,  .1.1.— Tliat  tin 
plaintiff's  statement  of  claim  pointed  distiiKtlv 
to  the  third  section  of  the  Act,  relating  tn  tin 
real  and  i>crsoiial  property  of  married  wniniii. 
anil  contained  no  reference  to  wages  or  eanuii.-. 
or  anything  to  suggest  thai  thu  property  wa- 
claimed  under  section  .VJ,  which  protects  a  nwr 
ried  woman's  separate  earnings  with  tlie  h.i- 
haiul's  consent. 

That,  if  the  plaintiff  liad  hrought  her.'^clf  win. 
in  section  .")'_',  she  might  have  recovered,  lli"U^^: 
an  amendment  woidd  have  heen  necessary. 
liohabr  a  al.  v.  Mor.-«,  ■_'<>  N.  S.  I!., 

(^\\.kv,.),iVl. 
SC.  L.  T.,.11"v 


136.    Statement  of  claim  -  Omission  of 


133.    Slander- Special  damages  need  not 

be  alleged  or  proved  in  certain  cases— I'laintitt' 
claimed  damages  for  slander,  alleging  in  his 
declaration  that  defendant  had  spfiken  certain 

woids  ahout  him  in  relation  to  his  Ijusiness  to        ,„„.     ,j.„.^„..>....    «.    

the  effect  that  he  wa.-^  guilty  of  frau.lulent  con-  !  essential  facts-Defendant  need  not  deny  sue.- 
iluct  in  said  husiness,  and  was  untrustworthy  facts  when  not  alleged -In  an  action  hidu.-'i:^ 
and  unprincipled  in  his  way  of  carrying  it  on,  [  by  plaintiff,  as  in.lo.see,  against  del'encliint^.|- 
whereby  plaintiff  was  injure<l  in  his  credit  and  I  indorser  of  a  promissory  note,  it  appciuec  1 1 1 
reputation,  and  his  customers  were  caused  to  ,  the  note  was  made  payable  "'at  '  "^  "  ^ 
■iiiiit  their  dealings  with  him  and  to  withhold  i  chants'  Bank,  Hawkesbury."  There  was  n' 
business  from  him.  <     -^...  »  .. 


I  chants     lianK,    nawKeaoui^.        ^' 

1  allegation  in  the  statement  of  claim  to  show  tlw- 


mi) 


PLEA1)IN(}. 


lo.W 


llir  jkjIc  \v.i«  iriiidi!  payiildi!  iil  Unit  |>lii(t',  m|' 
tli.ii  It  wiiM  iluly  iiifsciitiMl  f(ir  jmyniLiii  tlioii-, 
di  ilmi  any  notii'c  of  ilJMli<iii<>r  wiin  given  to 
>li'li'ii(liiiit. 

IliM,  ill. it  ill  I  lie  iilisciirc  (if  hihIi  iivcriiiflits 
,in<l  |iiiHi|,  |iliiiiilitr  udiijil  iKit  ifcdvci. 

.|/'i,  ilmt,  iiiiiUt  tlic  picsi'iit  system  of  plcacl- 
illg,  it  wuH  nut  iiK'iiiiilii'iit  iipoii  ili'li'iiiliiiit  to 
ili'iiy  fiKtH  tssciitinl  to  iiliiiiit ill's  ri),'lit  to 
li.over,  iiiilesH  siicli  liitts  wiic  .iilc;,'ccl  in  tiic 
Ktiiti'iiU'lit  of  cliiiiii, 

/>'ir/(n;/  V.  <!illiis,  •_'<!  N.  S,   K., 
(H  H.  ltd.),  4-_':ii 

y  ('.  T.  r.,  1  •.'<». 


\\1,  tiuflicicncy  ofullcgations    In  an  udion 

liriiiiglit  for  tiispii.-s  to  pliiiitid's  iiiiiiiiij;  areiis, 
(Itfi'iiilaiit  justifioil  as  ( 'oiiiiiiissiom'i'  of  Mines 
iiiiijci'  a  forfeiture,  ami  set  out  ir  one  of  iiis 
[pIius  iiiii r  alia  tliat  all  proieei line's  ir|misite  liy 
lim  Id  lie  taken  to  etleet  a  forfeiture  of  saiil 
liiisf  were  taken  uml  nil  iieeessiiry  iiotieen  .set- 
lin,' iiiit  defaults  ami  lireaelies  were  clnly  given 
ami  tli(^  (lefemlaiit  lieing  sucii  ("oniniissioiier 
iliily  L'ave  jiKlgiiieiit  forfeiting  saiil  lease  *  *  * 
ill  tlir  form  anil  iiuinner  jireseriljed  liy  law. 

//'Ill,  that  tlii.s  pleii  did  not  set  out  with  suf- 
tiiiiiit  |iiiitieularily  tlie  steps  taken  to  give  the 
( 'oniniissioiier  jurisdietion   to  forfeit  the  lease. 

l\'>il/iir,    V.  Cr-'fiiiriii,  .'»  |{.  &  (;.,  4|S. 


13H.   Sureties    Declnration  on  behalf  of 

surety  against  cosurety  Deimnrer  to  declar- 
iiliim  hy  oliligeo  on  liond  assigned  to  eo-siireties 
wlidliiid  piijil  defeiiilant"s  delit,  overruled. 

tlxrli<ii„j,:  llaiiL-  V.  Ilroini,  '2  H.  A:  (,'.,  Xi't. 


13!>.   Tender  and  piiynient  into  court 

Effect  of  aeeeptanoe  of  money  by  plaintiff— 5th 
R.  S.,  .■•  104,  O.  XXII.,  R.  6-To  an  action  for 
11  lIkIiI  alleged  to  he  due  for  the  earriage  of  goods 
'Icfcndaiit  pleailed  two  pleas,  the  one  alleging 
UikIlt  litfore  aetion  hrought,  and  the  other  pay- 
iMtnt  into  Court  in  satisfaction  of  the  plaintiffs 
tUiin, 

Plaintiff  having  accepted  the  money  paid  into 
t<imt  in  full  .satisfaction  of  tiie  claim  in  respect 
"f  which  it  was  paid,  in  accordance  with  Order  , 
Kii,  Rule  6,  defendant  contended  that  the  plea  of 
temler  involved  the  costs  of  the  action  up  to  the 
'iiiif  of  piiyinent  into  fourt,  and  left  an  issue  ' 
«ill  'luistauding  which  he  was  entitled  to  have  j 
tiii-'il,  or  to  have  the  action  dismis.sed  with  costs.  ■ 

"'M,  that  the  acceptance  of  the  money  paid 
"ito  Court  in  full  satisfaction  of  the  plaintiff's 
•laim  was  a  determination  of  the  action,  leaving 


only  the  (|iustion  of  costs  or  tender  to  he  dis- 
poned of  liy  tli»'  .fudge. 
K<ul,i,<i  V.  AV/m,  •.'(»  \.  ,S.  |{.,  (,s  K.  kV,.),  •J.-JS  ; 

sc.  L.  T.,;m9. 

140.  ToriN     I'lea  denying  eonverition 

Evidence  under  4th  R.  S.,  c.  94,  hh.  144  &  14G 
ll'lil,  in  action  of  tiover,  that,  under  4tli 
I!.  S.  cai).  !I4,  sees.  144  and  14(1,  defendant  could 
not  under  a  plea  denying  the  conversion,  avail 
hiniself  of  the  defence  that  the  goods  Were  not 
the  property  of  the  plaint  ill'. 

Morrison   V    /''ishirirk-^   |    It.  ,1;  C.,  .",!). 

141.  Traversing  or  eonfesslng  and  avoid* 

ing  necessary  -I'laintill 's  first  count  set  out 
that  he  was  |)ossessed  of  a  messuage  known  as 
Knieiiild  Hall,  which  he  had  lieeii  accil.stomeil 
to  let  for  hire  to  soldiers  of  the  garrison,  to  lie 
used  as  a  dance  hall,  and  that  defendants  well 
knowing  the  premises,  and  contriving  to  injure 
plaint  ill',  unlaw  fully  and  iinjiistly  persuaded, 
procured  ami  induced  the  (leiieral  commanding 
the  forces,  liy  an  order,  to  prevent  the  soldiers 
from  assemliling  in  said  hall.  The  secoinl  count 
dillcred  only  in  alleging  thai,  the  hall  was  occu- 
pied in  a  legitimate,  orderly  and  proper  manner, 
and  that  clefcndant,  knowing  and  contriving  as 
liefore  wrongfully  and  falsely  represented  to  the 
(leneial  that  it  was  a  nuisance,  liy  means  of 
which  fidse  rejiresentations  the  (ieiieral  was  iii- 
I  duced  to  prohibit  the  use  of  said  hall  liy  the 
soldiers.  Defendant  [ileaded  that  plaintill'  at 
the  time  nientioneil  occupied  said  premises,  and, 
conti'ijy  to  law,  kept  a  disorderly  house,  fre- 
ipieiited  liy  soldiers  and  citizens,  who  liy  tlieir 
riotous  and  disorderly  coiidiiot,  disturlieil  the 
peace  of  the  citizens,  and  that  the  (ienerul,  in 
coiise(|iieiice  of  the  disorderly  house  ho  kept  liy 
the  plaintif}',  placed  the  said  hall  out  of  bounds 
for  the  military,  ito. 

//(/'/,  on  dcniiiirer,  that  the  plea  was  bad,  as 
it  neither  traversed  nor  confessed,  and  avoided 
plaintitr's  allegation,  the  gist  of  which  was  that 
the  f.'ity,  contriving  to  injure  the  plainlitl", 
wrongfully,  unlawfully,  and  falsely  represenled, 
&c.,  but  that  the  dechiration  did  not  disclose  a 
good  cause  of  action,  as  althougli  the  city  could 
be  held  liable  ffjr  intentional  acts  of  misfeasance, 
it  did  not  appear  that  there  was  any  binding 
agreement  conferring  rights  or  interests  upon 
the  plaintiff  which  had  been  violated  by  the 
procurement  of  the  defendant. 
Laiisoii  V.  The  City  of  Halifax,  3  R.  &  C,  108. 

142.    Trespass  —  Pleading  In— Denial  of 

plaintiff'a  possession— Sufficiency  of  plea  that 
the  land  is  not  plaintiff's  as  alleged — To  an 


lOSl 


PLEADINO. 


UY.Vl 


iiulioii  of  tn'.^|)aH.<i  til  liiiiil,  ilcti'iiiliiiit  |)lt'aili'il, 
iilnimi;  iitli(.-i'  plt'iiN,  tliiil  till'  liiiiil  wiiH  iKit  |ilaiii- 
titr's  iiM  iill('i<c(l.     The  xfiilii't  xvii«  fcpi'  |)liiiiiliH'. 

J/''i/.  i»r  McMoliuM,  r.  ,1.,  and  W.atlui  he, 
.).,  tliiit  till'  |>laiiitil)',i  ))i>.-«»('N.siiiii  was  |)iit  ill 
iMHiic  liy  till'  [ilcii. 

/'i /' .Mi.'hiiiialil  mill  •liuiit'N,  ilil,,  lliiit  till'  poH- 
m'.HMioii  hIkiuIiI  liavi'  ln'cii  HiK'ciriuivUy  (U'liiuil,  ami 
till'  plia  wiiH  lint  HUlHi'ii'iit. 

Till'  Court  lii'iiiL!  i'i|ually  iliviiU'il  (III  ilic  riiU' 
fill   new  trial,  tiic  riili'  iliniiiu'il. 

A'//)/./'..    V.  Xoi/.^,  ;{  I!,  it  (i..  .S'_». 

lt:i.     Trespass     I'lva  of  oxtliislvi'  pos^ 

Ht'MHion  -Evidence  of  joint  iiosscssion— Verdict 
HUHtained — Wlicrc  ilcfiiiilaiit  plcailcil,  in  juHti- 
tiiation  til  trespasn,  an  i'Xi'lii>iv'-'  |iii.sst'.ssion,  ami 
till-  I'viiU'lice  slioweil  a  joint  |iiwNeHHiiiii  with  the 
pliiiititr,  anil  lliiTf  was  a  vi'iiliil  fur  the  plain- 
till',  the  ('oui't    lefuseil  to  ilistlll'li  the  vel'ilict. 

Moon    \\  J/iniiiiiii,  li 'I'lioni., -id. 

114.   Trespass    Pleais  in    In  an  action  of 

tfespass,  wliere  the  only  pleas  are  ;  first,  that 
(li'feiiilant  did  not  enter  plaiiitilf's  close  ;  second, 
that  the  land  and  soil  were  not  the  land  and  soil 
of  iilaiiitiH';  and  third,  leave  and  license;  the 
defi'iiilanl  will  he  preclndeil  from  proving  that 
the  plaintitl'  had  not  the  ii;iht  of  possession. 

<;r(,//o  V.  /'ro'*>7(,  •_' Tlioni., -Jitl. 

145.  Trespass-Plea  «!'  rifilit  of  waj  -  Ik'- 

claiation    for    several    trespasses    including    the 

lilariiig  of  rnliliish  on  the  soil.     I'lea,  right  of 

May. 

JIdil,  on  deimnrcr,  that  iht  jilea  should  have 

Btated  the   particnlar  trespass   inteniled   to   lie 

justified. 

Tohiii  It  al.   V.  O'Xrl/,  .lames,  00. 

146.  Trover  —  Defence  In  County  Court 

that  the  value  of  the  goods  la  over  $200— 
Writ  of  prohibition — jlefemlants  were  sued  in 
the  (.'ounty  t'ourt  in  an  action  of  trover  for 
goods  and  pleaded  that  the  goods  alleged  to  have 
))een  converted  were  of  the  value  of  J^OiW  and 
upwards  and  the  County  Court  had  iin  jurisdic- 
tion. The  plea  was  demurred  to  and  held  to  he 
good  by  the  County  Court  Judge,  who  was 
about  jn-oceeding  to  try  the  case  -when  a  rule 
ni-'i  was  taken  at  the  instance  of  defendants  for 
a  writ  of  prohibition. 

//eld,  that  the  plea  was  not  a  good  plea,  as  the 
damages  claimed  were  oidy  8200,  and  the  meas- 
ure of  damages  in  trover  was  not  necessarily  the 
value  of  the  goods  ;  and  that,  the  CVuirt  having 
jurisdiction,  the  writ  of  prohibition  could  not 
be  granted. 

0' Toole  v.  IVallace  et  al.,  4  R.  &  G.,  357. 


On  iiiii>iiil  III  Ihi  Siijiii  nil   Ciniif  nl' (''iiniil'i, 
//i/il,  Stroiij»,  .1.,  iliiii  nilnij,  that  the  cll'i'ii  i,| 
the  jlldgmt'lit  on  the  demiiri'er  was  to  i|Ua»li  till' 
wilt,  and  the  rule  niii  for  a  writ  of  piiihiliiljuii 
should  be  made  absolute. 

I'll-  Strong,  .1.,  ili'"^!  nlimi,  that  the  jiiilj; 
meiit  of  the  County  Coiirt  .Judge  on  ihr  lU'inui' 
rer  did  not  dispose  of  the  ease;  hut  he  liail  u 
right  to  rei'oiiHider  the  suliie  on  the  trial  nf  tlii' 
issues  raised  by  the  other  pleas  ;  that  the  pit';! 
to  the  jurisilii'tion,  by  attfirney,  was  null  aii<l 
void,  and  if  judgment  had  been  eiiteriil  ui 
record  on  the  demurrer,  such  judgment  wmilil 
have  been  likewise  null  and  void,  and  tlmt  the 
aniounl  claimed  by  the  plaintitrs  deelaiatiiiu 
bi'iiig  over  (</'•  in  ("as.  Uigesi,  probably  "only'' 
coriei't  reading)  .S-fMI,  tlieCiiuil  had  juiisilictinii. 
H'd/Ziiri  V.  O'Tiioli ,  /il/lt  /■'< liriKiri/,  ISS.',, 
Cas.  Dige.-t,  \±. 

147.  Variance    The  notes  sued  on  \\m 

lU'ilared  on  as  payable  in  United  Stales  iiir 
reiicy,  while  the  evidence  sliowed  that  tliiv 
were  payable  in  "currency." 

//(/(/,  that  as  they  were  made  payalile  in  llic 
Cniteit  States,  and  the  word  "currency  "  in  tli.il 
cast'  would  he  held  to  mean  currency  of  the 
United  States,   the  variation   was  not   matiriiil. 

l''nrthcr,  that  the  objuctiun  to  he  aviiilaUo 
should  have  been  pleaded. 

Sdiiilii  r  il  III.  v.    Wdlldi'i  il  ill., 

•-'ON.  s.  H.,  (s  H.  iV  <;.). .'Oil. 

Atlirmed  on  appeal  to  the  Suiireiiie  Cnurt  mI 

Canada. 

!IC.  L.  T.,'Jlo. 

148.  Variance    The  language  of  a  pien  wa» 

"if  any  of  the  answers  made  in  the  applicaliHii 
for  the  same  (/. ' .,  for  a  policy  of  life  insiinuicc) 
should  be  untrue,  evasive,  or  if  the  appliciints 
shonhl  conceal  any  facts."  The  language  nf  llu' 
application  was,  "if  (here  be  in  any  of  iln' 
answers  herein  made  any  untruth,  eva.sioii  I'l 
concealment  of  facts." 

Hi  III,  that  this  was  a  variance  whicli  ]prcveiiti'il 
the  defendant  Society  from  taking  advaiitiigi' "l 
the  misstatement. 

Wthsta- tt  al.  V.  Tht  Mutual  lid'n/ Sodiiij, 

20  N.  s.  K.,  (8R.it  (;.),;«:: 
!)  c.  L.  T.,  yy 

Affirmed  on  appeal  to  the  Supreme  Court  "f 
Canada.     Gwynne  and  Patterson,  .].).,  (/i"'i"' 

'"■  9C.L.T,m. 

149.  Variance  between  declaration  and 

evidence— Though  the  declaration  on  a  proinis 


1  ();{:{ 


POOR  LAW. 


I():i4 


wHV  lintr  illU'^'cil  liiitict',  mill  l  lie  fVidclKi' only 
iiiiivnl  Muivj'i'  III'  iiiitiic,  tliii  ('(lint  ii'fiisi'il  III 
(lir<tiiili  tilt!  vt'i'ilict,  III'  til  ilcprivu  |iliiiiititrH  uf 
ilii'ir  li^Ut  f'l  c'liHlH. 

IViifi  roii.i  h'liiiiiii  Co.  V.  ('hri'>i\i , 

tl  K.  &(i.,  I(«l;  (IC.  L  T.,  441. 

I'lO.   Vnrlnnro    Demurrer     The  deelar- 

iitiiiii  wn*  rxi  fniHUHl  iiH  til  iilicgo  llmt  ili'lVinliintN 
asHuri'tii-i*  U'cri'  lliililu  tn  piiy  to  |ilaiiititi'  in  onu 
^lllll,  nil  tin-  ■-'■Jiiil  Mi'cc'iiilii'i',  wimt  liy  tlio  ii^reu- 

Ml  ili'cliiri'il  iipiiii  mill  wliiisi!  |it'i'fiii'iiiiiiaT  tliuy 

hill  ^iiiiiaiitL'iil  (',  their  principal  wax  IihiiihI  to 
iii;,  ill  twii  siiiiiM  III!  JMt  of  AugiiHt  anil  JHt  (if 
Niiviiiilifr,  ix'Kpcctivfly.  It  iilxo  eontiiinuil  ii 
I'iMiiit  nil  all  lux'iiiiiit  Htiitt'il,  Dcft'iiiliintH  ile- 
nnirii'il  to  the  wlmli'  ili'iliiiiitiim. 

Ill  III,  that  tlieri'  hIidiiIiI  In,  jii(l^,'nu'iit  fur  ilcfen- 
il, lilts  (III  the  tii'Ht  (.■mint,  ami  f(if  the  plaiiititi'  (in 

till'  Sl'Cllllll. 

A<li,,ii'>  V.  .Vrtur/diir  ,1  II/.,  ;<  \.  s.  1).,  ;<:». 
131.   Variance- Kecord  roll— OmIsNion  of 

declaration  from  record  roll  -The  iiiiiin(*i(iii  of 
till'  iliilaratiiiii  frnni  a  lecoril  roll  wliieli  set 
t'lirtli  the  isaiiu  of  the  writ  of  Hiiiiiinoiitt,  the 
iiiiiiis  (if  the  parties,  the  partieulars  of  elailii, 
till'  ]iU'a  (if  eonfession,  ite,,  hehl  nut  to  lie  siieli  a 
filial  irregularity  as  would  Huctain  the  plea  of 
mil  tifl  reeonl  or  jirevent  the  inliiiission  in  evi- 
ikiKc  of  the  roll. 

Hi  III,  further,  that  a  varianee  lietweeii  the  date 
iif  till-  jinlgiiieiit  as  alleged  and  as  it  ajipeared  on 
till' iiiiinl,  wa.s  not  fatal,  as  tlii.s  objection  was 
iiiit  tiiki'ii  at  the  trial. 

Mcl.,iarii  V.  Ijijtli,  5  R.  &  (i.,  .'{7. 

1.V2.    Waiver     Party  relying  on  mu8t 

allege  and  prove— Where  it  was  contended  that 
till'  ])liuiititrs,  liy  lapse  of  time,  were  delMirred 
fiiiiii  liiiiigiiig  their  action, 

///'/,  that  it  was  for  the  defendants  to  plead 
it.  ami  to  establish  it  affirmatively  by  facts 
]iriivtil. 

FUh  il  III.  V.  Frmir  <t  al.,  W  N.  S.  1).,  r)l4. 

153.  Way  of  necessity —Plea  of- When 

il  tenant  liy  the  curtesy  of  one  lot,  who  is  the 
owner  of  an  adjoining  lot,  pleads ii  way  of  neces- 
sity in  himself,  there  being  a  convenient  access 
liy  the  lot  of  which  he  is  owner, 

Hihl,  that  such  a  plea  will  not  be  a  good  de- 
feiioe.  The  plea  need  state  no  more  than  that 
it  is  a  way  of  necessity. 

RatchJ'ord  v.  Kiiinmr,  2  Thorn.,  407. 

154.  Wharfage-Indebitatus  assumpsit— 

<i  harfage  is  recoverable  under  counts  of  iiidtbi-  : 


liihiM  insiiiii/i-l/,  that   liciny   the  prii|)er   fniiii   in 
which  to  proceed. 

JJi  llulf  V.  J'nifhiiril  >t  nl.,  ;t  \.  S.  ]).,  '.••J4. 

an.    WilhdrawinK     Terms    In  ffrantiniic 

a  rule  to  withdraw  a   pleiidiiig,  the  t'oiut  may 
inipoMu  reuMoniiblu  terniM. 

Mi:Khij  v.  llnmilloii,  diimeH,  \7>'\. 

>",'./",  PKAITICE. 


PLEDOE- 
Si.  LIEN. 


I.  Flre- 
'2.  Llfe- 
3.    Marine- 


POLItT- 

S"  INSlRANt'E,  FIRE. 

AVe  IJfSl'RANtE,  LIFE. 

SVc  INSURANCE,  MARINE. 


POOR  LAW- 
1.    Expenses  Incurred  previous  to  removal 

of  pauper — A  pauper  having  a  settlement  in 
defendants'  district  was  seized  with  fever  in 
pliiintiH's'  district.  I'laiiititfs  gave  her  relief, 
gave  notice  to  defendants  and  had  the  pauper 
removed  as  soon  as  it  could  properly  be  done. 
They  then  brought  action  for  the  expenditure 
incurred  previous  to  the  removal. 

Hi  III,  that  the  Statute  was  not  sutiicicntly 
clear  and  unnmbiguous  to  impose  on  defendants 
the  expense  of  sustaining  the  i)auper  previous 
to  removal. 

Or'rsiirs  of  Poor,  lirkliji  natrr,  v.  Ovtrsiir^  of 
Poor,  Port  Miilimij,  4  R.  &  (i.,  88. 

'i.  Notice  of  action  to  Overseers  of  Poor - 

A.,  R.  and  C,  describing  themselves  as  Over- 
seers of  the  Poor  for  North.  River,  brought 
action  against  1).,  E.  and  F.,  described  as  Over- 
seers of  the  Poor  for  Brooktield,  for  the  mainten- 
ance of  a  pauper.  The  Act  of  18"6  reduced  the 
number  of  Overseers  to  be  appointed  for  town- 
ships from  five  to  three,  but  the  .Sessions  of  the 
defendants'  township  appointed  five,  and  notice 
was  given  to  one  of  the  five  so  appointed,  who 
was  not  made  defendant  in  the  action. 
Hild,   that  notice   was  necessary   to  enable 


\o:\:i 


POSSKSSION. 


lOSfl 


lilailltilVx  to  I't'i'civi'l',  unci    tli.it    the  IKiticr  ill  tlllM 

CilM)'   WIIM  lint    t<iVI'll   to  till!  |ll'0|ll>r  ]llll'til>l4. 

AfrCnrihf'  III.  V.  Ihrnii  ,l  iil.,  ."I  1{.  A  <i.,  '.'40. 


/lifil,   tliiil   lilt' iipitfiil  inilMt  lit' ilimillnwi'cl,  in 

tilBI't)  WIW  no  UVillollOO  of  till'  llllttt  of  llolliu  fflHIl 

wliiili    tlif    ('(lint    I'oiiM    liinc    «niil    how    iiiii>  li 
|iliiiiitill'  wii-i  i'htitli-<l   to  t'l'i'ovt'r,  liiil    ili.it  till' 

3.    Order  of  nilallon    MoanliiK  of  wonl»  '""'^  ofo|,|,nMJn«  tii.Mi|>|M'ai  hI.ouI.i  nm  i„.  i.i 

InWi'il,    IIM     till'    Collllty     ('olll't     lliul    ili'i'iill'ij   nil 

ilill'i'ii'iil  mill  unti'iiiililr  ^loiiiuiw. 

JlJil,    n/iii,    lliiit   till'   fai;l  of  till'    |iilU|ir|-  li'flls. 


"To  hefionie  char^fealile  "  Urfi'iiclniit  nlijiTicii 
to  an  onli'i' of  tiliiitioii,  iiiiiili' lit  till'  iiiMtiiiH'i'  of 
till'  Ovi'iMi'i'iH  of  till'  roor  for  Miu'i'iiii,  on  tlii' 


Kionn.l  timt  iiltlioui;li  tin'  inotluT  «.im  r.'.siil.nt    '"K  f>  "i.iki'  iin  atli.lavit  an  to  the  jiiiUniity  nf 

al    Mai'.an,  Nihin  tlir  riiihl  was  n  tin-  h'u'al    tin- chihl  wan  not  MitKduiit  to  wariant  liu'()v..|. 

Hi'ttli'iiu'litof  ti,.'  inothi'iuas  till'  ToMiiMiiip  of    '*<•<•'■"'"  uithholilinn  ivlii'f,  oi-  r.'fiiHin«  to  ..'ini 

1   ...         .1        .  1  .:.  .  L.I-  I 1 ;.   1....I  I tf...  1     1 


I'iiiIhIioi'ii 

//i!il,  tlial  tlii'faliii'i  wiiM  lialili' totlu' lilailltifT 
'roMiisliip,  till'  woiil.s  "likily  to  lii'conic  ilmrgi!- 
alili'  to  any  'rii\Mi>»lii|i "  lii'iri^'  ('(inivali'iit  to 
"  likrly  to  iK'i'il  ri'lii'f  fioin  any  'rowiiMliip." 

Oi;  )•■«  I  )■*  III'  I'li'ir  V.  I ><t rill  1011,  4  K.  &  (!.,  •"»H. 

.s.f.  (//«',  BASTAKII. 
4.    Overseers  of  Poor    Aellon  nKaliist 

riailUill'  I'laiinrcl,  llllilil   ali  ligri'i'llli'llt    llliiili'   iiS 


liiirHi'thi'  |ilaintitr  liy  wimni  it  hail  lii'i'iiatVnrili'i 
Shrills  V.  On  rill  rt  of  Ihi  I'mir, 

I  It.  \  <;.,  tll.-i. 

«.  Overseers  of  llie  I'our  are  not  liable  for 

iM<mr>'  iliii'  liy  thi'ir  |(ii'ili'i  rM»ors  in  ollirr  tor  tin- 

krrpof  a  iiaii|n'r,  iiltlioiij;li  .•<iiih  iiii'iloci'nsoisli.hl 

flilL'ti'il  into  an  a(,'li'i'liic'lil  to  pay  foi'  biiiIi  kii'li 

Hiirrllf  it  nl.  v.  llitljiihl  >>  n/.,  '2  Tlioin.,  jiil, 

7.    Overseers  of  Poor    lilnbllily  of,  unM 


oni'  of  thi'  ( )vc'rHf tTH  of  tilt'  I'oor,  who  hail  \>vvi\  agreement- -Wlii'ie  a  ili'fi'iiilant,  an  OviT.si'i'i' nf 

iU|)iiti'il  liy  till'  iithiT  Ovcrst'ir.s  to  attuiiil  to  tin-  tl^.  I'ckh  ,  tnaili'  a  \i  ritti'ii  ajirci'iiii'iit  to  mi'i-  tint 

ii|iii'>«t  of  till' plaiiiiilV's  fithiT,  rlaiiniiiu' to  111' a  plaintilV  ri'oi'ivi'il  pay  for  .■-I'lx  ii.i's  rcmli'ii'd  tu 

1 : 1  K..; 1,.,. 1 ;..  ,           •       .    _       ^     . 


paiipri'  who  ii'i|iiiii'il  nii'ilirini'  a  in  I  alli'inlaini'  in 
lii.s  la.st  illncMi*. 

It  appoaroil  that  jilaintilf'  wa.-*  a  |ii  ison  of  no 
iiii-ans  wlmtt'viT,  lnit  tliat  oiiu  of  tin'  jiaiipi'i's 
otlii'i'  HoiiM,  aftiT  the  I'liiitiact  wa.s  inailt'  Mith 
plaint  ill',  notitii'd  tliu  ( )vi'r.'<i'er.s  of  his  willins.'- 
ni'KM  to  sn|)poit  hi.'<  father  at  lii.-<  hiMise,  liiit  at 
the  time  Maiil  notice  was  ttiveii  the  iian]>er  was 
not  in  a  loniliiion  to  lie  leinoveil. 

//</(/,  that  lU'feiiilaiits,  the  silceessors  of  the 
Overseers  who  hail  ilealt  with  the  matter  in  tiie 
tirst  iiistaiiee,  were  lialile  ninler  the  emitrai'l, 
altlioiijj'h  the'rowii  meeting  had  ileiliiieil  to  vote 
a  sum  to  meet  the  charge,  their  renieily  lieilig 
liy  amereement  of  tiie  Towiishi|). 

Si  nihil ,  that  apart  from  the  eontraLt,  the 
Overseei'H  woiiM  lie  lialile  iiinler  Mevised  Stat- 
utes, eliajiter  .'W,  for  attenilaiice  furnisheil  liy  the 
plaiiititf,  lieing  a  per.son  not  liable  liy  law  for 
the  pauper'.s  sup]ioit.  as  he  was  not  of  suttieient 
aliility  to  relieve  and  maintain  him  at  his  own 
charge,  ami  no  direction  had  lieeii  given  by  the 
sessions  that  he  should  do  so  (.sections  11  k  IS). 
Minifo  V.  Onr^KVi  o/iIk:  Poor,  Wiillwi , 

1  R.  &  <;.,  .'lOl. 


I  transient  pauper, 

111  hi,  lialile,  alt  hough    his    ( 'o-()vci'.si'er.s   re- 
imdiated  the  oliligatioii. 

]>'  iiiii^iiii  V.  I>ill,  Cncliraii.  .'in. 

8.    Removal  of  pauper   No  appeal  lies 

directly  to  tiie  Supreme  Court  froiii  .in  niiiir 
of  tlu.stices  for  the  removal  of  paupers. 

CoiLst ruction  of  Rev.  Stats.  CJnd  series),  e.  SH, 
s.  14, 
Orirstiv  i</  >lii  I'lmr  /or  <lni  iijiihl  v.  flnr- 

uriri  oj'rhr  /'nor  fur  llu^ln  n,  1  Old.,  (iO.'i. 

».  Kemoval  of  pauper  -  Order  of  Sessions 

-  How  sustained — An  order  of  Session.s  I'li 
removal  of  a  jiauper,  granted  iiiioii  iiisutliciiiil 
grounds,  cannot  lie  sustained  liy  atlidaviis  ni 
facts  omitted  to  he  vcritied  hefore  the  unlii 
passed. 

/hr'inhi/  il  III.  V.  (litnliinr  ii  <il.,  .laiuc.-i,  'M. 


POKTS- 


Ports  of  the  Donilnlon,  home  porls  In  rola- 
6.  OverseersofPoor- Action  by,  to  recover  tion  to  each  other  - 


expenses — Plaintiff  brought  his  action  in  the 
County  Court  to  recover  an  aniouiit  expended 
for  the  support  of  a  female  pauper  and  her 
illegitimate  child,  but  failed  to  show  when 
notice  was  given,  and  request  made  to  the  Over- 
seers. The  judgment  of  the  County  Court  was 
for  defendants. 


Si'p  SIIIPPI>«' 


POSSESSION. 
Disseisin -There  can  be  no  disseisin  b)  a 

party  holding  possession,  without  title,  of  par' 


I(»:l7 


PRACTICE. 


lO.'lS 


iif  It  lilt  iif  land,  ni^iiiiiKt  liiin  wlm  liivn  pimNCitKii  ii 

nt     llltl    lltlll'l'     pHI't,    mill     the    ll'glll    titll'    til     tlltl 

uliiilu. 

Ilnllitlny  ii  itl.  v.  Ihfiiini/,  Cnulii'uii,  Wt, 

s    EJECTMENT    LIMITATIONN  OF  ACTIONS 
AND  8inN-TKK8l'A8K. 


I'OINO  KEEPEK. 
round  krriirr   ObilKallon  to  receive  rnllle 

hroii^'ht  to  him  to  be  inipoundud  whether 
piuperly  brought  or  not  Entitled  to  payment 
of  t'eeH  before  releaiie  'I'wn  nf  i)liiiiilill"n  uivltlu 
wirr  ilistiuiiit'il  lis  iliiniM;;r  fiNiHiuit  mill  pliu'cil  in 
ilir  riiNtdily  iif  ili'fciiilmii  iiH  ki'i'pc!'  of  II  pulilif 
|iniiiiil.  I'liiiiitilf  ili'inmiiU'il  IiIh  cuttle  Inil  ilc- 
iliiinl  til  piiy  dcfi'iiilimt'.M  climges  nii  the  ^.'nmnil 
lli;U  till'  ciittlt;  wi'ic  wiDiiHfiilly  iinpimiiilcil  mul 
liny  wviv  tiiiiilly  mdIiI  tn  pay  tin  i.lim').'i'H. 

H'lil,  tliiil  (It'fi'iiiliiiit  was  liiimiil  til  rt.'ciJM' 
ilir  c.ittlc,  mid  wlu'tliiT  jiroperly  iiiipoumU'il  m 
lint  iu'  wiiM  I'lititli'd  tn  lie  jiiiiil  hit  Icu'id  (.limj^cs 

ill  lispi'Lt  tn  their  tVi'il  allil  ilrtcntiiill  lirfiile  tliov 

Hill'  I'l'lraxeil. 

IHarl:  V.  Sh  „■(,,■/,  1  U.k  {■..."  ;H\  I.  'I'.,  IIS 


till'  pouerN  witii  rsfartiiM  t<>  MuitK  in  partition, 
nitli  .vliii'h  the  Kijiiity  Court  in  K.iigluiid  u 'u\- 
vested. 

LrCniii   V.  //iM^  »•»)'(»,  •_•  \.  S.  1>.,  tl.'J. 

(I,    LImllatlon  ofpowerM  orrnllway  vtm- 

pany  — |)i  ffliilalitH  ucir  inipnMrli'il  by  Statute 
to  enter  mid  take  po.sMeHHiuii  of  lainlK  reijuireil  for 
the  trauk  of  their  railway,  MtatinnM,  &<:.,  the 
Imiils  taken  to  bu  laid  olC  by  iiieteN  mid  lioundN 
ami  a  plan  mid  desi'iiptinii  ri'i'iuded  in  the  liegis- 
try  iif  l>et'ilN  fur  the  ciiiiiUy  where  the  Imid  wan 
«itliate.  The  .Statute  jirexeribed  the  extent  of 
Imid  tn  lie  taken. 

//«/</,  that  the  ('onii)any  could  imt,  by  nuking 
11  Miirvey  111' tiling  a  de.seriiitinn,  aei|iiire  a  title  to 
jirivate  prii|)erty  lying  beyond  tiie  .statutory 
liniitM. 

Wharfage  is  reenverable  lllliler  nilints  of  in- 
ililiihitiiM  iii>iiini/ni>  that   being  the  jiroper  foiiii 

in  wliii'h  to  |)riM' 1. 

I).  Ilu/r  V.  I'lni'-h't,;!  <i  ill.,  .']  X.  s.  I).,  •.'■J4. 


PRUTKE. 


POWERS. 

1.   or  ANstciiiblj  of  Nttva  Scotia  - 

S"^  .ASSE-MBLY,  IIOISE  OF. 

*2.   or  (lirectorH  of  comiian)'  to  niortKiise  - 

Till'  ilirectnr.sof  a  I'onipany  inuoiporated  under 
A.  t>  nf  bSd'J,  cap.  ■_',  Rev.  Stats,  (.'hd  series), 
iiitinilecl  "An  Act  for  the  incorporatinii  and 
«iiiilliig-iip  nf  .Iniiit  Sinck  Coir.panies,"  have 
\w\\v\-  to  iiinrtgage  the  plopeity  of  the  cniiipaiiy 
t'l  iliscliarge  obligations  for  which  the  share- 
ImliliTH  are  liable,  and  would  continue  liable  in 
liii'ii'  own  persons  if  there  were  no  ninrtgag'j. 
Till'  |)iiwer  tn  borrnw  implies  the  jinwer  tn 
iiKiitgage. 

In  n  yash  ISrhl;  ,(•  Pottery  M '/'',/.  Co., 

.3X.  S.  l).,L'.-.4. 

3.  Of  Equity  Court  over  (iuardlan— 

.'? '  GUARDIAN,  3. 

4.  Of  executors  to  sell  lands - 

SV.  EJECfMENT,  '21. 


1.  Absent  or  absconding  debtor    Second 

Huminon.'i  may  issue  for  same  agent— It  is  no 

nlijectinn  tn  u  siiuimniis  tn  bring  in  an  agent 
tuider  the  aliscnnding  ilebtnr  juncess,  that  a 
privimis  >iinimnns  has  been  issueil  fnr  the  same 
agent. 

Ilali/dX  Ihiiik'nui  Coiii/irnn/  v.    WorrttH, 

.■)R.  &  (!.,  Tli. 

2.  Absent   or  Absconding   Debtor  pro- 
ceedings—Practice in  — 

S'  ABSENT  OR  ABSCONDING  DEBTOR. 
8.    Accounting    Case  where  entitled  to  an 

accounting,   but   not   to  recover  on  common 

counts— I'laintitl'  levied   upon   the   interest    nf 

shaiesiiien  in  fish  secured  as  the  result  nf  a  tisii- 

iiig  voyage,  and  purchased  the  said  interest  at 

.sale.     Defendant  having  sold  the  fish  under  a 

bill   of  sale,    which   was  found  by  the   County 

Court  to  be  fraudulent, 

//(/'/,  that  the  jilaiiititf  cniild  recnvcr  nothing 

from  defendant  under  thecoiiinion  counts,  as  the 

most  he  was  entitled  to  under  his  purchase  was 

an  accounting. 

Collk  V.  Ihll,  4  R.  &  t;.,  134. 


3.   Of  Supreme  Court  in  partition  suits  -      4.  Action -Commencement  nf- The  Judge 

1  lie  Supreme  Court  of  Nova  Scotia  possesses  all    who  tries  a  cause  may  Innk  at  the  writ,  even 


1039 


PRACTICE. 


1040 


when  not  put  in  evidence,  to  inform  iiiiiiself  of  , 
tlie  (late  of  the  cotninencenient  ol  tiie  iii'tion. 
Ji'ohi.r/soii  d  ul.  V.  Pnijh,  '_*(»  N.  S,  H., 

(«  K.  &(i.),  1.'). 

Attirmcd  on  appeal  to  the  Supreme  Court  of 
Canaila. 

1")  S.  r    R.,  70(5; 
9C.  L.  T.,  17.  I 

! 

.1.    Admission  to  tlic  Bar-Motion  for— 

Acts  1880,  c.  13,  8.  6  -Order  of  Court,  Slst 
May,  1881 — Under  an  order  ]iur.suaut  to  tlie 
Act  of  1880,  c.  l.S,  8.  6,  providing  that  a  session 
s'muld  he  held  for  "  calling,  arguing,  and  dis- 
jiosing  of  tiie  causes  I'emaiiiing  on  the  docket," 

//(/(/,  tiiat  the  only  mf)tiou  that  could  lie  en- 
tertained, except  motions  relating  to  causes  on 
the  docket,  was  a  UKjtion  for  admission  to  tiie 
r.ar. 

I'e  AdmUsioii  to  /he  Bar,  '1  K.  it  (i.,  301) ; 

'2C.  L.  T.,  HG. 

6.  Affidavits  in  answer  —  Discretion  — 

Defendant  against  whom  a  judgment  by  default 
liad  been  regularly  entered  up  ajjplied  within 
a  year  to  have  tlie  judgment  set  aside  and  to 
bo  allowed  to  come  in  and  <lefend  disclosing  a 
defence  on  the  merits.  I'laintifl"  was  allowed  to 
controvert  the  nieritoriousness  of  this  applica- 
tion, but  the  Judge  ileoided  to  grant  it  on  terms. 

Hi  Id,  that  having  so  exercised  Ids  discretion 
the  Judge's  decision  would  not  be  interfered 
with. 

Simhh',  ii  is  not  a  matter  of  right  for  plaintiff 
to  reply  by  affidavit  to  applications  of  this  kind 
and  wliere  he  is  ])ernutted  to  do  so  lie  sliouhl 
confine  himself  to  the  establishing  of  such  facts 
exclusive  of  merits  as  might  be  considered 
!<utticient  to  defeat  the  ai)plication. 

Woodworth  \.  Cnlteii,  li  X.  S.  D.,  SQi. 

7.  Affldavits -Filing  of— W'liereu  rule 

iiini  for  a  new  trial  is  grante<l  on  affidavits,  tlie 
opposite  side  is  not  bound  to  file  his  affidavits  in 
reply  before  producing  and  reading  them  on  tlie 
argument. 

Set/i/  V.  Pitrdi/,  •2Thom.,4I4. 

8.  Affidavits  in  reply,  J:c.— Tlie  Court  has 

r  irely  permitted  affidavits  to  be  produced  under 
8.  15  of  the  Evidence  Act,  4th  R.  S.,  c.  96,  and 
in  the  few  cases  in  which  they  have  done  so, 
such  course  has  been  rendered  necessary  to  pre- 
vent the  grossest  injustice  or  to  vindicate  the 
standing  of  members  of  the  Bar. 

On  argument  of  a  I'ule  to  set  aside  a  judgment 
obtained  against  defendant  on  the  ground,  among 
others,  that  the  judgment  had  been  entered  in 


fraud  of  defendant  antl  against  good  faith,  tin. 
Court  refused  to  allow  defendant  to  prinhicu 
affidavits  in  support  of  his  rule  when  the  utii. 
davits  of  plaintiff  contained  no  new  lunttLi 
except  in  reference  to  the  ti'''s  of  the  defcinlaiit 
to  the  land  on  wiiich  the  judj^ment  forimil  u 
lien. 

O'Mullin  V.  Mi' Donald,  H  H.  v\:  ('..  •Jul. 

I 

I 

9.  Affidavits-Intituling,  for  attaeiinunt 

— A  rule  for  attachment  lor  contempt  of  ('uuit 

committed  during  an  adjourned  Term  (adjoin  iitil 

under  4th  R.  S.,  c.  04,  s.  11),  can  be  moved  for 

on  the  last  day  of  such  Term,  and  it  is  no  u\i\w- 

tion  to  the  rule  that  it  is  made  returnable  at 

the  next  Tei-Hi.     A   rule  uiki  for  an  iittacliniont 

can  be  moved  for  on  the  last  day  of  Term  fur 

a  contempt  committed  during  the  Teiiii.     lint 

the  rule  will  be  discharged    if  heailed  "//((V," 

&c.,  when  there  is  no  such  nuitter  depending  ji> 

the  Court. 

//(  /•(   /'./,,•  A'oss  •_>  R.  &  C,  ,V,Hi. 

10.  Affidavit- Intituling  of,  for  attach- 

ment--A  writ  of  nrtiomri  having  been  isMicil 
out  of  the  Supreme  Court  to  the  Ciiief  Coiniiii.v 
sioner  of  Mines,  the  Commissioner  declineil  lu- 
turning  or  olieying  tiie  writ  for  reasons  wliirlitlie 
Court  held  insufficient,  .iinl  a  rule  iii-ii  fur  mi 
attachment  was  tliereupon  granted.  This  rule 
was  oj)])o.sed  on  two  grfptiiids,  the  second  liiiiij; 
that  the  affidavits  f>n  whicli  the  rule  was  giaiittil 
were  intituled  in  the  cause. 

Held,  Wilkins,  J.,  dlwiuliiKj,  that  althmigli 
the  writ  of  n  rliorari  had  not  yet  been  returiicil, 
the  matter  was  already  in  the  Court,  ai.d  tliiri,- 
fore  the  affidavits  were  rightfully  intituU'd. 
Ill  re  Clydi  Coal  <L'  Miiihui  Co.. 

•_'X.  S.  ]).,.■>(!. 

11.  Affidavits  on  which  a  rule  is  obtiiincd 

must  be  read  at  t!ic  argument  ;  and  affidavits  in 
rei)ly  may  be  used  in  showing  cause  against  it. 
ThoriK.  V.  Shair,  1  Old.,  :M. 

12.  Affidavits-Parties  ordered  to  lile- 

An  application  was  made,  and  a  rule  giaiitnl, 
to  compel  the  parties  sustaining  tlie  forfcitiireij 
mining  property  to  file  their  affidavits  on  a  day 
previous  to  the  hearing,  to  be  named  hy  tln' 
Court. 

Qnnn  v.  To}>in,  2  R.  &(;.,m 

13.  Affidavit— Practice  as  to  - 

Ste  AFFIDAVIT. 


14.   Amcndment- 


Stt  AMENDMENT. 


1041                                                 PRACTICE.  1042 

1.1.     Appeal   (IlKnilNSed    Tor  irrOKIllarity-  Court    hiul  an  inherent  I'iglit   to   open   u{)  tliu 

A  iiile  «/•>■(  was  taken  April  "ind,  ISSI,   to  strike  judgment,  even  after  the   hipse  of  a  year,  to  let 

ii  lii.ise  off  the  (locket  on  the  grounds  that  the  in  a   tiial   on    the  inei'its  ;    that    the    plainlill's 

|M|ieis  were  not  on  tile,  and  that  the  cause  had  notice  of  trial   was  had,    there    being   no  place 

iiiii.'iiiated  in  the  ("ity  Court  and  the  amount  in  named  where  the  trial  was  to  be  held,  and,  there- 

ili-])ute  was    less  than  .*4I>,  being  only  .SIO,.")^.  fore,  that  this  Court  nuist  deal  with  the  judg- 

It   was  sl'(\\;i  liy  athdavit  on  the  argument  of  nient  as  if  there  had  been  no  notice  of  trial, 

the  rule  tiiat  the  reason  why  the  papers  weie  not  Weatherlie,  ■).,  though  concurring  in  the  re- 

en  tile  was  that  an  ap])lication  was  pending  in  suit,  (juestioned  whether  the   provisions  as  to 

the   Court  below  to  amend  the  minutes.     The  appeal  in  the  Statute  of  IST.S  were  applicable  to 

nile     iii"!     was,    after     argument,  discharged,  the  case,  as  the  action  had  lieen  connnenced  pre- 

.•\iinther  rule  nisi  was  taken  out,  December  14th,  .  vioiis  to  IS7H,  and  held  that  the  pi'ovisions  in  the 

l><s|,  to  strike  off  the  cause  and  dismiss  the  ap-  Act  of   1H77  were  not   applicable,  as  there  had 

|iid  on  the  same  grounds  as  before.     The  pajiers  lieen  no  trial,  but  that  there  was  an  appeal  by 

were  not  f)n  file  at  the  time  of  tiiking  out  the  sec.   .").S  of  the  Act  of   1S74,  cap.    IS,   which  he 

tiilf  »/</,  but  were  tiled  before  the  argument.  held  to  be  unrepealed. 

Ifi/il.  that  this  was  not  suthcient,  and  that  Aiidirsoii  v.  Taylor,  ',i  K.  &  C.,  o'iU. 
tlic  iijijieal  must  be  dismissed. 

nos..(m  V.  Coomhis,  ,s  K.  ,t  (i.,  iv, ;  20.    .Appeal  from  toiintj  Court  iiinlcr  Act 

2  C.  L.  T.,  (iOl.  „f   \^--^  L.itp.  (i,  dismissed,  tlie  cause  not  being 
entered  on  the  docket,  and   no  certified  papers 

1«.    Appeal  from  Count}  Court    Appeal  on  file. 

lii.iu  County  Court  dismissed,   on  the   ground  Whvtlo'-k  v.  liroirn,  1  H.  &  (i.,  \\i. 
tiiiU  i)apers  were  not  certitied. 

Fix.mau  V.  Moran,  .}  K.  &  c.,  i(i(i.  ^j.    Appeal  from  Couut}  Court-Practlce 

on  — 

n.   Appeal  n-om  County  Court  dismissed,  '^ "  APPEAL,  v. 

tile  rule  for  appeal  not  having  lieen  served. 

.Mniimuiiw  Oi-ir.-<,,:r.tof  roor,^\i.&v.,K-,.  22.    Appeal  froHi  Jud^c  at  Chambers— 

Appeal  from  the  decision  ofaJu<lgeat  Cham- 

18.  Appeal  from  County  Court -Notice  of  '"^i-^  «^'"i>'i='  'i«'<l'^  I'l'-''^"  allowed  with  costs. 

iiMilion  for,  must  be   headed  in   County  Court.  'f''^»'  v. /CaMu-, '_' R.  &  (i.,  l(i."). 
Wlii'ie  it  was   headed   in   Su])reme  Court,    the 

Ccui  t  i)i  haiiro  allowed  it  to  be  amended.  23.   Appeal  trom  Judge  In  Equity  -Points 

McDoiKthl  V.  /{oiinii,  7  H.  &  (i.,  '-'."» ;  of  practice— Under  4th  Rev.  .Stats.,  cap. !)."),  sec. 

7  C.  L.  T.,  .VJ.  78,  an  order  for  the  hearing  of  an  appeal  from  the 

decision  of  the  .Judge  in  Kijuity  in  vacation  need 

19.  Appeal  from  County  Court  —  This  not  be  given  by  the  Court  ill  kuiro,  but  may  be 
cause  lieiug  at  issue  and  for  trial  in  the  County  signed  by  the  Judges  individually,  and  the 
Court  at  Antigonish,  it  was  agreed  by  the  par-  appeal  may  be  heard  by  the  same  (jiiorum  that 
ti's  to  refer  it  to  arbitration,  V)ut  no  stejjs  were  would  be  re(iuired  for  the  regular  term  of  tlie 
tiiken  to  that  end  by  either  party,  and  on  the  Court. 

cause  being  called  on  the  docket  on  the  first  day  The    allegations   contained    in    an    Order    in 

"t  the  sittings,  defendant's  counsel  not  answer-  Council  nuiy  be  questioned  in  a  suit,  and  with- 

ing  plaintiff  obtained  ju<lgnient  under  the  prac-  out  making  the  Crown  or  (iovernment  a  party 

ticein4thR.  ,S. ,  cap.  94,  sec.  202,  which  did  not  to  the  suit.     A  ground  of  appeal  setting   out 

cfiiiie  to  the  knowledge  of  the  defendant  until  that  the  judgment  is  contrary  to  law,  and  the 

mure  than  a  year  afterwards.     Defendant  then  allegations  and  statements  appearing  in  the  bill 

"htaiued  a   rule  nixi  from   the   County   Court  and  dennnrer  and  the  Statute  therein  referreil 

■bulge  to  set  the  judgment  aside,  on  the  ground,  to,  and  also  a  ground  setting  out  that  the  judg- 

umiiiig  otliers,  that  no  proper  notice  of  trial  had  ment  should  have  been  in  favor  of  the  defendants 


en  given,  but  the  Judge  discharged  the  rule  for  the  reasons  and  grounds  raised  by  the  de- 

iti4  on  the  ground  that  it  had  not  been  moved  murrer,  "which  said  reasons  and  grounds  said 

f"r  within  a  year.     An  appeal  was  allowed  on  defendants"  (appellants)  "  here  repeat  as  fully 

the  grounds  appearing  in  the  rule  ni.si.  and  to  the  like  effect  as  if  they  were  set  out  at 

Held,  that  an  appeal  lay  from  the  decision  of  length,"  held  to  be  of   no  avail   as   being  too 

the  County  Court  Judge  under  the  Act  of  1878,  general  and  indefinite  to  satisfy  4th  R.  .S.,  cap. 

rap.  9,  sec.  14 ;  that  the  Judge  of  the  County  95,  see.  73. 


1043 


PRACTICE. 


1044 


A  ground  of  appeal  setting  out  tliat  tlie  .ludye 
cnoneously  deuided  tliat  the  dunuirrer  being  liad 
in  ])art  was  l)ad  altogetlier,  and  tiiat  under  tlie 
practice  of  tiie  Court  tiie  said  .Judge  siiould 
have  given  judgment  upon  tlie  whole  reeonl, 

llilil,  bad  as  relating  only  to  practice,  aiul 
coming  within  the  exception  in  4lli  R.  S..  cap. 
!).">.  sec.  7.3. 

W'iiiilsor  <t'  Ainiapo/i-i  liaihruy  Comjininj  v, 
Witttrn  Coiuilii-t  Rnihraij  Com/iain/, 
•A  R.  &('.,  .S7(l. 

24.     ApiienI    from   Justices   -  Effect  on 

Judgment  below — Defendant  was  pro.secuted 
under  chap,  li),  Rev.  Stats.  (3rd  Series),  for  a 
liicach  of  the  law  relating  to  the  sale  of  intoxi- 
cating li(|Uors.  'I'iiere  was  no  actual  service 
ii))on  him  of  the  writ  of  summons,  and  tlie 
atliilavit  of  the  constable  verifying  the  leturn 
was  informal  in  being  intituled  with  the  sur- 
names only  of  plaintiff  and  defen<lant.  Defen- 
dant having  been  cfinvicted  in  his  absence, 
a])|)ealeil  and  tiled  the  necessaiy  bond  under  tiie 
Statute. 

Ill  Id,  that  when  an  a])])eal  is  taken  and  j)er- 
fected  from  a  decision  of  Justices  of  the  Peace, 
in  a  sunniiary  cause,  tlie  judgment  lielow  is 
thereby  lp.<o  facia  vacated,  and  the  case  stands 
for  a  new  trial.  Also,  that  defe^idant  having 
a])))ealed,  and  thus  xirtually  ajipearod,  and 
having  avoideil  the  judgment  below  by  having 
taken  an  important  step  in  the  cause,  it  was  not 
coiii|)eteiit  to  him  to  lepudiate  the  juiisdiction 
of  tiie  Court  below,  on  the  ground  of  want 
of  jiersonal  service.  Had  he  wislie<l  to  avail 
himself  of  such  an  objection,  he  should  not  have 
appealed,  but  should  have  sueil  out  a  writ  of 
<•(  rliorari. 

On  a  second  trial,  no  amendment  adding  or 
substituting  a  new  cause  of  action  or  ground  of 
defence  will  be  allowed. 

P' r  Wilkins,  .T.,  ilissciitimi. — A  judgment 
given  as  the  judgment  in  this  case  was,  forms 
no  exception  to  the  pi  ivilcge  of  ajijiealiiig  con- 
feiied  by  the  Statute,  and  to  issue  a  ci  W/o)"fi)v 
would  have  been  liunecessary.  .Judgment  by 
default  having  been  given,  defemlant,  not  having 
lieen  duly  summoned  to  appear,  is  entitled  to  an 
a])])eal.  The  want  of  .service  of  the  summons 
alone  is  ground  for  reversing  the  juilgment 
below.  A  dissatisKed  party  a])pealing  from  a 
judgment  so  entered  cannot  be  held  to  waive 
his  right  to  contest  the  validity  of  the  judgment, 
not  having  had  an  opportunity  of  opposing  the 
-claim  which  the  judgment  recognizes. 

Ha  lid  V.  liorkird! ,  2  X.  S.  !).,  lit!). 

'25.    Appeal  in  Insolvent  matters— Appeal 

from  an  order  of  the  County  Court  sustaining  a 


claim  against  an  insolvent  estate  dismissed  with 
costs,  where  j)rocecdings  were  not  taken  within 
the  eight  days  limited  by  Statute. 

In  i-f  Morton' H  Eslatn,  2  R.  fcC..,  .'Ul  ; 
1  C.  L.  T.,  (iiU. 


26.    Appeal  -Practice  on  - 


S>-<-  APPEAL. 


27.  Appearance— Effect  ofappearuiice  on 

question  of  jurisdiction— I'laintitl's,  cloing  busj. 
ness  in  the  State  of  New  York,  issued  an  attach- 
ment against  defendant,  a  dsaler  in  preserveil 
goods,  residing  in  Maine,  as  an  absent  debfoi'. 
It  appeared  that  defendant  had  for  several  years 
continuously  carried  on  business  through  agents, 
at  Sable  Island  and  other  places  in  Nova  Scntia 
which  defendant  admitted  that  he  occasionally 
visited  in  jirosecution  of  his  Imsiness,  remaiiiiiii; 
a  few  days.  One  of  the  plaintitVs  swore  tiiat  a 
considerable  jiortion  of  the  claim  was  for  mnm  y 
advanced  to  enable  defendant  to  carry  on  hi- 
business  in  Nova  .Scotia,  and  that  he  veiily 
believed  that  a  large  part,  if  not  the  whole 
claim,  arose  in  Xova  .Scotia.  Defendant  swoie 
that  no  part  of  the  claim  in  suit  coidd  be  fm 
indebtedness  contracted  in  Nova  Scotia,  iiii.l 
that  he  liatl  not  carried  on  any  business  with 
plaintitl",  within  the  Province,  since  the  ilatc  nf 
the  tiist  item  in  the  |)articulars  of  demand. 

Jli/d,  jii-r  Desliarres,  .J.,  (who  dcliveinl  tht 
judgment  of  the  Court),  that  facts  had  liciii 
sworn  to  l)y  plaintitl",  which,  if  true,  gave  the 
Court  jurisdiction,  that  it  was  not  for  tlit 
Court  to  look  at  conflicting  statements  in  tin- 
affidavits,  and  further,  that  defendant  could  not 
raise  the  ((uestion  of  jurisdiction  after  having 
tiled  an  ap])eaiance.      Wilkins,  .J.,  f//.«i ;''u/;/. 

Ditd/n/  <t  ul.  v.  Joins   1  H.  k  ('.,  »I6. 

28.  Appearance  —  Jiotlce  of  appearance 

not  necessary  when  a  party  appears  in  iieisoii. 
Crossk-i//  V.  Allixoii,  -1  Thorn.,  '-'ss, 

29.  Appearance -Promise  b}  atlorne)  l« 

appear — Failure  to  — Action  was  brougiit  l^y 
phiintiff  against  defendants,  a  company  incni 
porated  in  Nova  Scotia,  but  resiiiing  in  thi 
United  States,  and  not  Hiitish  subjects.  .\\\ 
attorney  in  Halifax  was  retained  by  them  t" 
defend  the  cau.se  and  took  some  procecdin^- 
therein,  and  according  to  the  affidavits  of  plain 
tiff's  attorney  promised  to  ai)pear  and  ])U',iii. 
This,  however,  defendants'  attorney  ikiiici. 
Plaintiff's  attorney,  after  some  years'  ilela\. 
applied  to  the  (/ourt  for  an  order  reciuiriii: 
defendants'  attorney  to  enter  an  appearance  hi 
order  that  the  Court  might  have  jurisdicthm. 


lOio 


PRACTICE. 


1046 


//</'/,  that  if  tlcfendanls'  iittornoy  ha<l  given 
11  sigiie<l  uiulertaiiiiig  to  appear  lie  would  l)u 
ciiinpelled  to  do  so ;  lint  that  otherwise  the 
('(iiirt  had  no  jurisdiction,  and  could  not  grant 
tlie  desired  onler. 

Ilillnni  V.  Sydney  nud  Loui--hur<j  liaihray  Co., 

3N.  S.  1).,  137. 


30.   Appellant  moved  one  Term  to  traii.s- 

mil  the  papers  to  the  County  Court   at    I'ort 
Hii'id  to  he  certified,  which  wa.t  refused. 

'I'he  motion  was  niii'weil  next  Term  under  the 
Statute  of  IMSO  j)as.sed  .since  the  former  Term. 
The  Court  refused  a  rule.  A])pellant  tlieii  moved 
tiidismiss  his  ap])eal,  and  a  rule  was  gi'anted  dis- 
iiiissJMj.'  the  appeal  with  costs  to  the  time  the 
iriotioli  was  i(ia<le. 

MrDamihl  V.  Mrf)„ii;in//,  '2  U.  fc  C,  lOS  ; 

I  c.  L.  T.,  am. 


'M.   A rsiinir lit,  application  forininu'diato 

~-.\n  ii))|)lication  to  order  the  innnediate  ar,i;u- 
iiiciil  of  a  I'ule  nisi  for  .setting  aside  the  ])ro- 
tee<linj;s  on  the  grouml  of  irrej^'ularity  imd 
illcLMlity  rcfu.sed,  then'  l>ciiig  only  two  days  to 
tlic  cud  of  the  Term,  and  the  othci'  side  not  lieini.' 
jiicjiiircd  for  argiunent  and  o])posing  tiie  a))i)li- 
<'iitinn. 

•J  X.  .s,  I).,  :',■;. 


;{'2.  Argument    Canse  not  properly  before 

the  Court  for  argument— l)cfendant's  |)roj)eity 
Mas  attached  liy  Cordon  iV  Keith  umler  the 
Alisconiling  Debtors"  Act  and  suliseijuenlly  liy 
])l;iiiitill  undei'  tlie  Dominion  Act.  C.  iV  K. 
ii|iplied  to  have  plainlitl's  attachment  set  aside 
<iii  certain  technical  grounds.  At  the  arg\nnent 
iif  tiie  rule  visi  it  wasdiscoveied  that  it  hadheen 
giiintcd  hy  a.ludgeat  Chandlers,  ami  was  return- 
iililc  at  Clwunhers,  and  had  Keen  lirought  on  for 
iUL'iiiiient  before  the  Court  hy  agieement  lictween 
the  attorni'ys. 

//'/(/,  tliat  the  ap))lication  slio\dd  he  refused, 
tiie  cause  not  being  projierly  before  the  Court, 
luid  tiie  applicants  having  no  /ockn  sfaiidi  there- 
in. 

Jniniil  v.  rifitiiioihr,  '2  \.  ,S,  ]).,  r,-24. 


33.     Argument  —  Issue   used  at  trial 

governs  on —Tlie  Court  will  on  the  iirgumcnt  be 
g'Vciiied  as  to  the  pleadings  by  the  issue  used  at 
tiie  trial. 

/''/'/""'  V.  X.  B.  i-iid  Mtnrontih  Lis.  Co., 

1  R.  &  <i.,i'19. 


34.  Argument -No  one  appearing  for 

appellant,    j)laintitrs    counsel    was    directed    to 
argue  the  ca.se  on  behalf  of  respondents. 

Chi/nnaii  v.  Utintyt,  ii  ul,  '2  II.  &  (J.,  ISl. 

35.  Argument  Objection  not  enter- 
tained at,  where  not  taken  below — 'I'he  Court 

i  will  not,  on   the  argument    of  a   motion  to  set 
'  aside  a  verdict,  entertain  an  rdijection  \\  liicii  was 
not  taken  at  the  trial,  where  the  objection  might 
iiave  been  I'emedied,  if  taken  at  the  trial. 

A(.«.«(  o/(ill/li  v.  Cumpfiill,  James,  4!S. 

36.  Argument  -  Postponement  of  —  The 

Court   will  postpone  an  argument,  after  it  lias 
comnicnced,  where  it  appears  to  their  satisfac- 
tion  that   iuiustice  uill  otherwise  lie  dune  for 
I  want  of  evidence  in  theatiida\  its  upon  a  material 

jioint. 

O'Jlrii  II  V.   Yviiiiii,  James,  57. 

37.  Attachment  for  contempt -^  iches  in 

moving  Jurisdiction  of  Court  —  I  >cfciidaiit 
was  committed  fo','  trial  for  having  ]iiililisl!ed  in 
his  newspaper  ccrt.iin  libellous  maltei-  concern- 
ing M.  .*>lioitly  afterward  defendant  published 
three  other  libellous  aitiiles  conceiiiii.g  M., 
w  Inch  were  calculated  to  iiirtueiice  the  minds  of 
the  jieople  from  whom  the  grand  and  petit 
jiuiiis  Wduld  have  to  be  drawn,  and  thereby 
prevent  a  fair  and  inijiartial  investigation  of  the 
charge  against  him.  When  the  last  mentioned 
libels  weie  pulilished,  the  depositions  taken  on 
the  former  complaint  had  been  returned  to  the 
.Sujiii'iiie  Court  and  were  on  tile  tlieie'iii,  and  it 
wiiuld  be  the  duty  of  the  piesidiiig  Jiid..''  at  the 
next  sittings  of  the  Court  to  sulnuit  the  niattei 
to  the  graml  jury. 

Hilil,  that  defendant  had  committed  a  punish- 
able otTeiice,  and  that  the  )iroceediiigs  weie  at 
the  time  so  far  pending  in  the  Court  as  to  enable 
it  to  act  .summarily  by  attachment,  to  jiiinish, 
if  necessary,  the  otl'eiicc  committed. 

Tlie  libels  complained  of  were  ]niblishcd  on 
the  .'iOth  December,  1H,S,"),  and  the '^Kh  January, 
ISSC).  The  motion  for  the  attachmeiit  was  not 
!  made  until  March  •27tli,  KSSti. 

Ill  III,  notwithstanding  the  la])se  of  time,  that 
the  rule  should  be  made  absolute  with  costs. 
The  main  object  of  the  ai>plication  was  to  pre- 
vent further  ])ublica.tious  of  a  similar  character, 
and  not  to  punish  for  the  jiast  otlence  :  other- 
wise the  Court  Wduld  have   hesitated    to  grant 

the  rule. 

V""/'    v.    U'oodirorUi,  7  H.  .<:  C.,  ISli; 
7C.  L.  T.,'24ti. 

38.  Award  —  Enforcing   obedience  to  - 

Court  and  not  Judge  at  Chambers  can  enforce 


1047 


PRACTICE. 


1048 


—The  iiower  conferred  on  tlie  Court  liy  4th  Rev. 
Stuts.,  c.  109,  8.  22,  to  enforce  ohedience  to  (in 
award  made  under  a  voluntary  siilnnisfsion  can- 
not he  exercised  hy  a  Judge  at  t'lianil)ers. 
Sir  William  Yoinig,  (\  J,,  diixcntinii, 

Co/ti,:  V.  Mori, I,  1  R.  .<t  C,  4'-'7. 

30.    Award,  practiro  on  sottliis  aside- 
s'' ARBITRATION  AND  AWARD,  is  to  24. 

40.  Bail-bond  —  MIsrccital  or  Jndsnient 

in  -I'laintitV  sued  in  tlie  (  ounty  Court  on  a  hail- 
hond  given  liy  the  three  defendants,  wlio  pleaded 
and  proved  that  the  execution  had  heen  returned 
hefore  tlie  expiration  of  tlie  sixty  days  within 
whicli  it  was  made  returnalile.  The  County 
Court  .luilge  iield  that  this  was  a  mere  irregu- 
larity, not  touching  the  merits,  and  could  not  l)e 
taken  advantage  of  hy  plea,  and  he  gave  judg- 
ment against  the  tliree  defendants.  Defendants 
apjiealed,  and  in  tlu'  appeal  liond  recited  the 
judgment  as  a  judgment  against  two  of  the  de- 
fendants. 

//'/(/,  that  the  ajjpeal  was  irregular,  and  that 
a  motion  was  properly  made  in  this  Court  to  set 
it  aside,  though  the  papers  had  hoen  certified 
and  the  hond  ajjproved  hy  the  (\mnty  Court 
. Judge. 

n'nt'<on  V.  Hnin/,  S  R.  &  <i.,  i;?l. 

41.  Bail -Objection  to,  too  late-  A  pre- 
liminary ohjection  was  taken  at  the  argument 
that  tile  hail  was  defective. 

//i/il,  that  under  the  ]iresent  system  of  printed 
cases  the  ohjection  was  too  late. 

Pir   Righy,  J. — That  as  the  material  neces- i 
sary  to  enahle  the  Coui't  to  cfinsider  the  ohjec- 
tion was  not  included  in  tlie  ease  as  furnished, 
the  olijection  was  not  o])en  tfi  the  plaintiflTs. 
MrDontKll  <i  (d.  V.  .l/<JAf(.s/' /•,  .S  R.  &  C,  Tt2. 

See,  also,  BAIL. 

42.  Capias-A  second  original  capias  may 

issue  upon  the  same  attidavit. 

lltilhind  V.  liorycr,  .Tames,  4.5. 

43.  Capias    Release  of  debtor  arrested 

under  capias — Effect  of— 

St  ARREST,  I,  13. 

44.  Cause— 

Qu(ure,  whether  an  arhitration  is  a  "cause" 
within  the  meaning  of  s.  42  of  c.  9."),  R.  S.,  4tli 
series. 

In  re  Frcvtr  and  Paint,  .3  R.  &  C,  10. 

45.  Certificate  for  costs  where  damages 

in  action  for  libel  less  than  $8— In  ar  action 


for  liliel,  the  jury  found  a  verdict  in  favor  of 
the  plaintiff  for  .•*.")  damages,  and  the  presiijiiig 
Judge  thereupon  ga\e  a  certificate  that  the  lilnl 
complained  of  was  wilful  and  malicious,  so  ,is 
to  entitle  the  plaintiff  to  costs. 

Ill  Id,  on  appeal,  that  as  the  evidence  clcaily 
showed  malice,  the  eeitilicate  was  jirupciiy 
given. 

/>'«rs.s  V.   ira//(('<,  20  N.  S.  ][., 

(S  H.  &  <;.),  ."i(i4. 
St,:  CO.STS. 

4«.    Certlorarl- 

(^H'liri,  whetiier,  umler  the  j)ractiee,  the  writ 
of  nriiornri  should  not  have  heen  allowed  in  the 
first  instance  wititout  any  rule  nii^i. 
Queen  v.  Ward,  20  N.  S.  R.,  (S  R.  &  (i.),  Jos, 

See,  aho,  CERTIORAIM. 

41.    Change  of  place  of  trial  - 

S'l  TRIAL. 

48.    Commissioners— Control  of  Court  over 

— On  a  motion  to  set  aside  an  order  of  aCcpiii- 
missioner  refusing  to  ilischarge  a  dehtor  held  to 
hail  undei'  the  order  of  another  CounnissioiiiT, 
the  Court  claiming  a  controlling  power  over  its 
Commissioners,  passed  a  rule  ahsolute  discharg- 
ing the  defendant  without  costs. 

Jioijiri  V.  Itoijiri,  2  R.  &  (i.,  4il."i. 

40.    Commission  to   examine  witness  - 

The  (Viurt  will  grant  a  commission  to  exaiiiiue 
a  witness  who  was  o\it  of  the  Province  wiieii  tlie 
suit  conuuenced,  hut  returneil  after  action  com- 
menced, and  left  again  secretly  without  tlu- 
knowledge  of  the  party  re'juiring  his  testiimiiiy. 
Hank  of  n.  X.  A.  v.  Kiith,  .lames,  .")ti. 

See  EVIDENCE. 
50.  Consent  rule  for  submitting  evidence 

as  special  case— A  rule  of  Court  was  made  hy 
consent  of  the  parties,  that  the  evidence  should 
form  a  special  case  to  he  suhmitted  to  the  Court 
with  power  to  draw  inferences  of  fact  and  enter 
judgment  for  eitiier  party  fr)r  such  amount  iis 
the  Court  should  determine,  the  rigiit  of  appeal 
in  either  to  he  the  same  as  if  a  verdict  or  judg- 
ment were  given  hy  a  single  Judge,  &c. 

Held,  that  under  this  consent  the  Court  had 
no  power  to  entertain  the  case. 

Per  McDonald,  J. —  That  the  Court  wnulil 
not  entertain  the  case  as  there  were  conflicting 
statements  on  issues  involving  the  (|uestion  "f 
fraud. 

Howard  v.  Lancashire  Insurance  Co., 

2R.  &(i.,374; 
2  C.  L.  T.,  108. 


1049 


PRACTICE. 


lo.-.o 


m.    Consolidutliis  artlonH  — Ai'tlniis   Tor       51.     I'ontiiiiiaiuo    of    summary    caiisr 

iiiniiey  mill  laiiil  iiie  mo  distiiut   in  tlu'ii' iiiituri'    which  has  been  referred  to  jury  -  - 'I'lic  (iniit 


lliiit  thi'y  (.'1111111)1  Ik!  coiisiiliiliitt'cl. 

A'l  ;•/'  V.  Xi/si)ii,  Jiiiiiis,  .")7. 

,12.    CoiiNtriictioii  of  sec.  127  or  the  I'rac- 

tii:t'  Act,  Rov.  Stilts.  ("Jiul  series),  cap.  l.'U. 

/illfroir-(   V.  Iti  IK  I-,  1  Olil.,  ,'i7l. 


«ill  orili'i'ii  jury  in  asuiiiniaiy  cause  where tiu'ie 
will  111'  ciinllictiiig  evjiliiice. 

A  suiniiiiuy  ciuise  wliicli  liiis  lieeii  referreil  tn 
ii  Jill  V  cannot  he  ccmtiiuuMl  l)y  pliiintitf  vitlimit 
spcciiil  iiKPtioii, 

L'liinrh    V.  (Uinbuv,  Jiinies,  ."ill. 


.i;J.    Coiistriu'flvc  service  -  The  Court  will 

iinl  (irder  i)iil)licatii>ii  or  constructive  .service  of 
ii  writ  of  revivor,  where  the  ilefemliint  has  lieeii 
iilwciit  from  tiie  Province  for  u])\\iirils  of  .«eveii 
yiiU's,  iilid  it  iloes  not  iippcar  tlial  In;  has  hecii 
liciiil  of  in  tiie  nieantinie.  I 

Tiippiv  V.  Lirhiii-'<tnii,  1  Dlil.,  (iCiT. 

54.  ConstriicUve  service,  aflldavit  for 

I'liiinlirt'ohtaincil  in  the  County  Court  an  onlir 
uiiciij-  4th  I'l.  S.,  cap.  04,  sec.  44,  for  constructive 
service  of  a  writ  of  suinnions  on  tlie  defendant 
wlio  was  ahsciit  at  the  time  in  Knglaiul.  The 
atlidavit  on  >\hicli  the  order  was  taken  was  I 
.sulislantially  in  these  terms:  "That  said  defcn- 
diiiit  is  alisent  from  this  I'roviiice  ami  is  as  I  am 
informed  ami  verily  helieve  in  Creat  IJritain,  so 
that  iieisonal  service  cannot  lie  etFected  u|ion 
him,  if  at  all,  without  great  exjieiisc  and  incoii- 
viMiience  ;  that  I  have  a  good  and  available  cause 
of  action  against  defendant  ;  that  H.  1*.  is  the 
agent  and  partner  of  the  defendant  in  this 
I'lnvince. 

Hilil,  reversing  the    decision    of    the  County 
''ipiut,  that  the  atlidavit  Mas  not  siitticiciit,  l)iit 
that  it  should  have  set  out  the  facts  and  ciictim- 
stances   necessary    to    make    it  "I'ppear  to  the 
siUisfaetioii  of  the  ijiidge,"  exercising  his   own  1 
judgment  in  the  matter  that  the  case  came  within  ; 
the  terms  of  the  Statute  providing  for  construe-  | 
live  service. 

Fostirw  Itoomi ,  'A  H.  &  C.,  .■U4,  clisiinguished.  , 
MvLi'l/aii  V.  liablirlii,  W  W.  k  (".,  rw4.  i 

55.  Continuance  -Discretion— At  the  trial ' 

tile  cause  was  continued  a  clay  to  enalile  ]ilain- 
tirt'  to  get  a  deposition,  which  could  not  he 
fi)imd. 

Ilild,  that  this  was  no  ohjeetion  to  the  verdict 
fill  iihiintiff,  as  the  Judge  had  discretion  under 
4th  K.  S.,  e.  !U,  s.  'JIO.  { 

/Wee  tt  al.  v.  LamU,  ,S  R.  &  C,  '2(i9.  ' 

5((.   Continuance   Obtaining— The  deien. 

tliuit,  in  order  to  obtain  a  continuance  on  the 
ground  of  a  coinniission   not   being   returned,  ' 
must  shew  that  he  has  used  due  diligence  to 
ohtain  its  return  in  time. 

Landry  v.  Joins,  .lames,  341.  1 


58.  Continuance  The  atlidavit  for  a  con- 
tinuance on  the  ground  of  the  absence  of  a 
material  witness,  ought  to  show  when  he  is 
ex])ected  to  retuili. 

/JiiCwii   V.  y>i</(/(i,  - 'I'hom.,  |,'{, 


59.    Continuance  —  The  non-iia}  inent  or 

the  costs  of  the  day  to  defeiulant,  even  «  here  he 
produces  an  atlidavit  that  he  will  be  unable  to 
]iinduce  his  witnesses  again  in  coiisecpience  f>f 
his  inability  to  pay,  is  not  sutlicieiit  to  entitle 
him  to  a  continuance. 

Cosi )/  V.   I)V///«;»N,  ■_' Thoni.,  I.S4. 

(iO.    Continuance  to  procure  evidence  - 

Discretion  of  County  Court  Judge  to  grant 
— An  application  to  a  Judge  of  the  County 
(.'ourt  for  a  continuance,  in  order  to  enable 
plaintiff  to  procure  the  evidence  of  a  material 
witness,  was  refused  on  the  ground  that  a  con 
tiniiaiicc  had  been  previously  granted  for  the 
same  purpose,  and  the  Judge  had  no  jiowei  to 
order  a  second  continuance. 

I/i/il,   that  the  Judge  hail  a  discletioii   which 
he  shoulil  have  exercised. 

C'o.r  V.  t'roik'i  i\  7  It.  \'  <>.,  "Jl  ; 
7C.  L.  T.,  .V.'. 

01.    Continuance  -Wliat  to  be  shown  to 

procure — In  order  to  procure  a  coiitiniiance,  on 
the  ground  of  absence  of  a  witness,  defendant 
must  shew  that  he  has  used  all  jiossible  dili- 
gence. 

S/iii'h  V.  MttxHir,  James,  .S4I. 

62.  Continuance -When  refused— Where 

a  material  witness  for  defendant  gave  notice, 
after  action  brought,  to  tl;e  defemlant's  attor- 
ney, of  his  intention  to  leave  the  Province 
without  stating  the  precise  time,  and  afterwards 
went  away  suddenly,  the  Court  refused  a  con- 
tinuance on  account  of  his  absence. 

Kvith  V.  lladlty,  James,  17(i. 

63.  Continuance  —  When   refused  —The 

Court  will  not  grant  a  rule  xisi  for  a  continuance 
on  account  of  the  absence  of  a  witness,  when  the 
application  is  not  made  sutiiciently  early  in  the 


1051 


PRACTICE. 


1052 


Term  to  allow  |ihiiiitiH  to  iinswtr  the  lule  the 

siiiiie  'I'fi  111. 

Kiilh  V.  Tiiiimiii,  Jiiiiifs,   177. 

64.  lontributoricN    Culls  upon-  Pruitlcc 

— In  milking  culls  ihkhi  contriWntDiies  snm- 
nionses  will  lie  giiinted  liy  ii  Judge  to  the  several 
parties,  re<iiiiriiig  the  iiniounts  for  which  they 
are  lialile,  to  lie  paiil  witiiin  a  Kpecitied  time, 
without  costs,  uiikss  resisted. 

Ill  IX  Xwh  Brii.Ici:  I'otu.nj  M'/'ij.  Co., 

3  N.  S.  ]).,  ■_>o4. 

«5.    Costs- Dell viTj  of  bill  of-  liuler  the 

practice  in  this  I'rovince  tlie  delivery  of  a  bill 
of  costs,  as  rei(uired  hy  3  James  1,  c.  7,  is  not 
necessary,  costs  being  recovei'able  as  any  other 
debt. 
Stdijijcick  tl  al.  V.  Fa>.iliuiik-<,  7  H.  &  (!.,  399. 

66.    Costs  refused  when  point  not  taken 

below— On  appeal  from  County  Court— Judg- 
ment for  plaintiff  set  aside  and  judgment 
ordered  for  defendant  —  Judgment  was  given 
ill  the  County  Court  in  favor  of  plaintiff,  from 
which  defendant  appealed. 

On  the  hearing  of  the  appeal,  a  point,  not 
raised  below,  was  taken.  Tiie  Court  set  aside 
the  judgment,  ordered  judgiuent  for  defendant 
with  costs  of  trial,  Ijut  without  costs  of  argu- 
ment. 

The  East  1 1- a  JJi  nJojuntiit  Co.  v.  MiKai/, 

•JUX.  «.  R„  (S  H.  &(;.),  3-2rt; 
9C.  L.  T.,63. 

See  COSTS. 
61.    Counsel— Klght  of  to  be  heard -The 

appellant's  junior  counsel  opened  in  support  of 
the  appeal  and  the  Court  announced  that  they 
would  decide  after  consultation  whether  it  was 
necessary  to  call  on  the  other  side.  Tlie  senior 
coiuisel  then  claimed  a  right  to  be  heard  in  sup- 
port of  the  appeal,    but  the  Court  refused  to 

hear  him. 

Jltili/iy  V.  Boak;  4  R.  &  (;.,  Sl'. 

68.  Counsel— RlRht  to  be  heard-  Associ- 
ated counsel  has  no  light  to  be  heard  if  on  the 
opening  the  Court  deems  it  unecessary  to  eall 
upon  respondent. 

Iliihky  V.  Do(d;  3  R.  &  (}.,  "239. 

69.  County  Court- Appeal  from— Supreme 

Court  no  power  to  order  judgment  to  be  en- 
tered up  in  County  Court — The  Court  dismissed 
an  appeal  for  irregularity  in  the  form  of  the  rule 
and  granted  a  rule  directing  the  Clerk  of  the 
County  Court  to  enter  up  judgment  in  the  County 


Court  f(»r  the  plaintitf.  On  a]i])eal  from  a  de- 
cision discharging  a  rule  ;(('.<(  to  set  the  judgiuent 
aside, 

ll'lil,  that  the  order  of  tliis  Court  for  ciilcr- 
iiig  up  judgment  was  in  e.xcess  of  jurisdirlinn, 
and  tiie  Clerk  of  the  County  Court  had  no 
authority  to  enter  up  judgment. 

Ilue.ntU  V,  Lyons,  3  R.  &  0.,  •_'S4. 


70.    Crown    Remedy  against    Practice  - 

Cannot  be  sued  or  enjoined-Reraedy  by  peti- 
tion of  right — 

Su:  CKOWN. 


71.    Crowi:-  Suit  by-Second  plea  without 

leave—  Entering  judgment  on  default  without 
assessment  -Default  —Execution  —In  an  actiuii 
on  a  bond  for  .'?4(X)  at  the  suit  of  the  Crown 
against  the  [iriiicipal  and  one  of  the  sureties,  tlie 
defendants  pleaded  more  than  one  plea  without 
leave  and  the  plaintifl"'s  attorney  treating  tiie 
plea  as  a  nullity,  on  the  ground  that  the  Crowii 
was  not  Ipoitnd  by  section  17S  of  the  I'racticu 
Act  (allowing  a  second  or  subse(|uent  plea), 
marked  default  and  witliout  liling  any  record 
entered  judgment  without  any  assessment  of 
damages  upon  which  execution  was  issued  in- 
dorsed to  levy  for  a  sum  less  than  eighty  dollars. 
Ihid,  on  appeal  from  the  County  Court,  that 
the  judgnieiit  was  ]iroperly  set  aside  by  the 
County  Court  .Jiulge. 

Queen  v.  Haireit  it  al.,  3  R.  it  (i.,  '-'TO, 


72.    Default  — Indorsing  name  of  relator 

on  bond— Notice — In  an  action  on  a  ctiiivrari 
bond  under  chapter  75  Revised  Statutes,  "  Of 
Licenses,"  schedule  K.,  the  defendant  ol)taiiiuil 
an  order  iii4  for  the  indorsation  on  the  writ  (if 
the  name  of  a  person  to  be  liable  for  costs 
under  the  practice  established  by  the  ijaan 
V.  .\frKarcli(  r,  3  R.  iS:  C. ,  .337.  Refore  the  rule 
was  made  aVisolute  the  plaintitf  indorsed  the 
name  of  the  Clerk  of  License,  and  gave  the  de- 
fendant notice.  A  rule  was  afterwards  obtained, 
making  the  rule  nisi  absolute,  and  giving  tiie 
defendant  ten  days  to  plead.  Plaintitf,  after  the 
rule  was  made  absolute,  indorsed  the  name  nt 
the  clerk  a  second  time,  but  did  not  give  tlie 
defendant  notice  of  the  second  indorsation,  ami 
after  the  expiration  of  ten  days  marked  a  detaiilt 
for  want  of  a  plea. 

Held,  that   the  default   had   Ijeen   reguiiiiiy 
marked. 

Quaere,  as  to  the  practice  established  by  tlie 
Queen  v.  jIcKurclur,  3  R.  &  C,  3.37. 

Queen  v.  Curia;  1  R.  &G.,  ;iU7. 


lOj:} 


PRACTICE. 


1054. 


73.    nerault,  removal  or  Ju(l{;ment  by 

A  jiiilgnii'iit  liy  (lefiiull  will  lie  stl  aside  as  ii 
iiiiitlt'i'  (if  coiirHu,  iiiiil  the  <lefeiuliiiit  iiilinitted  to 
pltiul,  where  the  default  has  lieeii  inaiked  in 
ci'iiM'i|iieiice  of  (I  iiii»a|i|it'elienNi(iii  on  the  part  of 
tiic  defendant's  attorney,  iinless  there  has  lieen 
iiiiii'iisoiialile  delaj'  in  uiakingtlie  applieation. 

Wiiat  \s  rea.^^onalile  time  nniHt  depend  upon 
•.III'  lircmnstaneeH  of  eaeh  particular  cane, 

Couk  V.  Shiiiik  r  it  uL,  .'{  X.  S,  I).,  '),'{(). 

S,<;  uU,  JIDGMEXT. 

«4.    Defence  —  Lettin;;  defendant  in  to 

(let'eiul  in  appeal  causes- In  appeal  causes  de- 

iVndiint  will  be  let  in  to  ilefend  after  judgment 

ic'ainst  iiini,   under  section  "JO  of  the   Practice 

Act  of  IS'iS. 

Doyle  V.  Timm/ii<, '2  Thorn., 'MS. 

;.i.    Demurrer    Application  of  Practice 

Act  to— Sees,  (il  to  70  of  the  Practice  Act,  cap, 
l.'H,  l!cv.  Stat.s.  (.Srd  series),  apply  eijually  to 
ilciiiiirreis  in  eiinity  as  at  connnon  law. 

//or  11.^1 11/  V.  ,/ofiiiifoiii ,  'A  X.  S.  ]),,  1. 

»«.    Demurrer  -  Practice  as  to  —  Defen- 

ilaiits,  liy  tlieir  third  jilea  to  plaintitl's  writ  and 
ikclaralion,  said,  "  that  licfore  the  issuing  of 
tiit;  wiit,  and  since  the  delit  alleged  in  the  same 
Ipfcanie  due,  plaintitl' caused  a  writ  to  li,;  issueil 
against  ilefenilant  for  his  claim,  and  had  already 
iirovered  judgment  therefor.''  I'laintift"  dennir- 
ivil  to  this  plea,  on  three  grounds  :  because  it 
ili'l  not  allege  that  the  judgment  therein 
alleged  to  have  been  recovered  was  foi-  the  same 
cause  of  action  ;  because  it  did  not  allege  tiiat 
tlic  juilgnienl  was  still  in  foice  ;  and  lieeause  it 
'li'l  not  allege  in  what  Court  or  country  the 
juilgnient  was  rtjcovered. 

Ih!(l,  that  the  <lemurrer  nnist  prevail. 

Snnlih ,  that  according  to  tiic  Practice  Act, 
[iliiiititr  should  have  applied  to  have  the  plea 
aiiKiiileil,  rather  than  have  demurred,  wiiicli 
laitcr  course  should  only  be  adopted  in  event  of 
tiic  anicndment  ordered  by  the  Judge  not  being 
iiiade  within  the  time  prescribed. 

McJJoiiidd  V.  Lukt  Mujor  O'o/d  Minimj  Co., 

1  X.  S.  1).,  2W. 

U.   Demurrer  -Practice  on— Plaintlfi  set 

"ut  ill  his  writ  that  he  had  recovered  judgment 
against  defendant  as  administrator,  and  that,  to 
the  execution  thereon,  the  Sherifl"  had  returned 
that  defendant  had  no  goods  or  chattels  which 
WLic,  etc.,  but  had  paid  the  costs  of  the  suit 
(tile  return  being  set  out  verhalim)  and  the 
iletlaration  proceeded,  "■  IVhtrthy  il  appears  that 
tlie  defendant  hath  eloigned,  wasted  and  conver- 


ted to  his  own  use  the  goods,"  etc.  Defendant  de- 
iimrred  on  the  grounds  that  no  ili  laslnril  was 
alleged  or  suggested  ;  that  while  it  was  alleged 
to  appear  by  the  return  that  the  defendant  had 
eloigned  and  wasted  the  goods  ol  the  intestate, 
the  return  which  was  set  out  v^rhatim  did  not 
allege  or  suggest  a  ili  i(i\tiirif  ;  that  il  did  not 
follow  as  a  legal  inference  from  the  rettirn  that 
defendant  had  been  guilty  of  a  dcra.itari/,  and 
further  that  the  ili  rci.i/uri/  should  be  alleged  as 
a  fact  and  not  stated  as  an  inference. 

llild,  that  the  rule  iiiiti  to  set  aside  the  de- 
murrer as  irregular  must  be  made  absolute,  and 
that  defendant,  if  embarrassed  by  the  declara- 
tion, should  have  applied  imdcr  4tli  K.  S.,  c.  !I4, 
s.  I'J4,  to  have  it  amendeil,  and  was  preclude<l  by 
the  Statute  from  demurring  except  after  the 
non-comj)liaiice  liy  plaintitl'  with  a  Judge's 
order  to  amend, 

Ritchie  E,  .1,,    ilisii -.i/iiiii. 

Morrison  v.  Kaiidirk,  I  \\.  Sc  C,  I4.S, 

Allirmed  on  appeal  to  the  .Supreme  Court  of 
Canada,  -J  .S,  C.  H.,  l->. 

•SVi;  Iiij'ra,  l(»l>. 

«8.  Demurrer  to  writ  of  mandamus- 
Preliminary  objection  tiiat  by  the  practice  of 
the  Sujueme  Court  of  Xova  Scotia  there  can  be 
no  demurrer  to  a  w  rit  of  mandamus,  overruled. 

V»"'(   V.   '/'/((    Wardi  II  niid  Toini  Coitiiri/  of 
Dartmouth,  .")  K.  it  (i.,  .'^ll. 

Atliiined  on  apjieal  to  tlie  Supreme  Court  of 

Cana<la. 

Cas.  Digest,  •_'«,->. 

t9.  Deposition  taken  dc  bene  esse  re- 
moved from  tiles- Foundation  for  admission 
of,  not  laid — Wheie  plaintitl's'  attorney  had 
tid<eii  trom  the  Hies  of  the  Court  a  deposition 
taken  '/(  In  iii  *  >m  on  the  part  of  the  defendant, 
liut  tile  defendant  di<l  not  succeed  at  the  trial  in 
jiidving  the  illness  or  absence  fruiii  the  Province 
of  the  witness  with  sutiicieiit  clearness  to  entitle 
liim  to  have  the  deposition  read,  if  procured, 

Hdd,  that  the  fact  of  the  deposition  having 

been   renifived   from  the  tiles  of  the  Court,  did 

not  constitute  sulhcient  ground  for  disturbing  a 

verdict  in  favor  of  plaintitl's. 

McDonald  it  at.  v.  Mi  rrltaiits'  Marine  Iii.s.  Co., 

•2K.  &c.,  i:w. 
$0.    Deposition  taken  for,  but  not  used  at 

first  trial,  may  be  used  at  second  trial— Where 
the  <lep(isition  of  a  witness  had  been  taken  but 
not  used  at  the  first  trial,  in  consequence  of  wit- 
ness being  able  toatteml,  but  a  new  trial  having 
been  awarded,  and  the  witness  dying  previous  ta 
such  new  trial, 


105.-) 


PRACTICK. 


lo:.f; 


III  Id,  that  lilt;  deposition  wils  ii'ci'iviiliic  in 
t'viili'iici'  lit  such  si'cMind  tiiiil. 

Iir<in-ii    V.    /;■»!/.,   I    'riiolM.,  (1st    Kil.l.   IMS; 

C.'nil  I'M.),  i:i:. 

Si.    niscretloii    Matters  of   No  apiicnl 

All  a])l)ciil  was  tiiki'li  fidiii  iiii  older  of  a  Couiity 
Court  .liiilgo  (liHL•illll■gin;^  an  oniei'  ((/»/'  for 
.security  for  costs,  wlieie  it  was  sliow  ii  liiat  tlie 
plaiiitiir,  alliioiijih  lesident  out  of  tiie  I'roviiice, 
was  11  native  and  a  iiiitish  suiiject  and  had  coii- 
xideiahle  real  and  ]iur.s(>iuil  estate  witiiiii  the 
jurisdiction,  and  there  wa.s  .some  evidence  that 
.she  intended  to  return. 

//i/'/,  that  tlie  granting  or  refusal  of  the 
order  Ity  the  County  Court  Judge,  was  a  matter 
uf  discretion,  and  that  the  discretion  liiid  heei: 
rightly  exercised  liy  the  .ludgi,'. 

Cnnl  V.    II'm/..,  4  I!.  ^  C.  !i;{. 

S'i.    Discretion    Matters  of-Kiile  that  no  i 

appeal  in,  eonlined  to  cases  that  are  purely 
discretionary— 

•vm  costs,  :i». 

83.  Uismissins  action    Motion  to  dismiss 

plaiiitifl's  cause  for  waul  of  prosecution  refused, 
plaiiititr  having  been  lestrained  hy  order  at  the 
instance  of  defendant  from  i)r(wecuting  the  suit. 
lidiil:  uf  Xoi'it  Sroiiu  \.  liari.y, 

(i  K.  &  (i.,  4!I4; 

()  C.  L.  T.,  .")4(t. 

84.  English  practice  When  to  be  resort- 
ed to — The  case  of  a  .ludge  refusing  an  a])pcal  is 
not  provided  for  hy  our  Statute,  and  in  such 
cases  the  Knglish  practice  is  to  he  resorted  to,      [ 

III  ri'  Caini roll' •<  Clrni'<,  '2  H.  &  C.,  '-'48  ; 
I  C.  L.  1'.,  70!). 

83.    Enlargment  of  rule  nisi -On  the  day 

when  an  order  »/</  tii  set  a.side  pleas  was  return- 
ahle  at  Halifax,  the  defendant  residing  at  New 
Clasgow,  his  counsel  moved  at  Chanihers  for  the 
enlargement  of  the  rule  on  liis  own  affidavit, 
setting  out  that  the  law  tirm,  of  which  he  was  a 
nieinher,  had  been  informed  hy  the  attorney  of 
defendant  that  they  would  receive  by  the  mail 
of  the  previous  evening  an  affidavit  showing  cause 
against  the  rule,  but  that  no  such  athdavit  had 
been  received.  It  was  not  shown  that  intiuiries 
had  been  made  at  the  Post  Office  at  Halifax  for 
the  letter  said  to  contain  tl  e  affidavit,  or  that, 
in  fact,  it  had  ever  been  mailed  at  New  (ilas- 
gow. 

Hi  Id,  that  the  decision  of  the  Judge  at  Cham- 
bers, refusing  to  enlarge  the  rule,  should  be  sus- 
tained. 

McLm-M  V.  McNeil,  2  R.  &  C,  161. 


HO.    Entry     A|)pcai  dismissed   Htr  noii. 

payment  ot'cost.s  under  rule  to  enter  .\pp.  il 
ilisliiisscd,  wliere  appt'liaiit  iiavillg  lle^dcl'ted  In 
enter  the  appeal  in  time,  olitained  a  rule  tocntii 
the  cau.se  on  payment  of  costH  which  a]ipelliiit 
faih'd  to  pay. 

,/(-/('// ^/.lH   V.  Mr/., 11,1,  4  H.  >V  C.,!)| 

St.    Entry    Ciuise  slruclt  of  for  non>oiitr} 

W'iierc  a  cause  was  not  entered  with  lin 
I'rothonotary  on  the  'I'uesilay  preceiliiig  iiic 
'leriii  in  accordance  w  itli  tiie  rule, 

J/il(l,  that  it  must  be  struck  oil'  the  docket  nt 
causes  for  trial. 

II'.  v/  V.  Mi/:l,r,  •JThoiii.,  •.".m. 

SS.    Entry  of  cause    Motion  to  re-enter 

Security  held  a  matter  for  separate  applicatiun 
-On  a  motion  for  leave  to  re-enter  a  cause  mi 
tile  docket,  made  on  behalf  of  the  defeiiditiit, 
plaintitr.s  counsel  applied  for  security  on  tiic 
ground  tiiat  the  clefemlanl,  who  was  caiiyiiiL' 
tile  a])peal,  was  absent  finni  tiie  Province. 

Ill  III,  that  tliere  must  be  a  .scliarate  apphci- 
tion. 

MiLiuhlniiw  K'liiiiili/,  '2i)'S.S.  l!., 

(S  1!.  k  C),  .Sl'l);  !)C.  L.  T.,  .-iii. 

89.  Entry -Non-entry  of  rule— Where  a 

rule  is  not  entered  for  argument  by  the  p;iity 
wlio  obtained  it  within  the  tiist  four  days  of  ilic 
Term  in  which  it  is  returnable,  andno  allidavits 
accounting  for  tlie  delay  are  tiled  liy  iiiiii  williin 
the  time,  llie  ruh^  w  ill,  on  motion  of  the  o|i|iii- 
site  party,  be  discharged  with  costs. 

Morion  v.  Cniii/iliill,  I  Old.,  (ilis. 

90.  Entry    Ke-entry  allowed  on  terms 

Appellant  allowed  to  enter  cause,  on  payiiifiit 
of  costs  of  rule  to  dismiss  a])peal  for  non-eiitiy, 
wiiere  the  failure  to  enter  it  resulted  froiu  ini»- 
understanding  between  counsel  engaged. 

JohuMoii  V.  Mi'LiMii,  .S  H.  k.  (i..  .'il ; 
'IV.  L.  T.,(i(i;i. 

91.  Entry— Re-entry— Cause  allowed  to 

be  re-entered  on  payment  of  costs,  the  diliiy 
having  been  accounted  for. 

Potti')-><  it  al.  V.  Taylor,  ~,  \\.  k  i^.,  ;tS,"). 

92.  Entry— Re-entry  of  cause  on  payment 

of  costs  -Application  to  be  heard  after  cause 
called  and  passed  —  Argument  ex  parte— 
The  appeal  was  called  in  its  turn  on  the  docket, 
but  was  not  ready  for  argument,  the  case  having 
only  been  settled  the  same  day,  and  papers  were 
ready  very  shortly  after. 

No  injury  having  been  shown  to  have  resulted 


10.)7 


PRACTICE. 


1058 


finiri  tliu  ilflay,  uiiil  tlio  {>urtif.'8  atandiug  in  tlic 
saiiK.'  |Kwitioii,  for  uiiytliinj{  thivt  appeared  iiot- 
ttitiiMtiiniliiig  tlie  ladicH  of  the  appellant,  leave 
wiis  giaiitcil  to  re-enter  liie  cause  on  payment 
l)f  ccists. 

When  a  cauxe  or  matter  is  ealleil  cither  party 
ims  n  ri>;ht,  if  the  oilier  do  not  appear,  to  argiio 
it  i.</*a»7p,  and  judgment  will  in  due  course  bo 

pi ounced  suhjeut  to  an  application,  hased  on 

|iio|)tT  ground-s,  liy  the  other  party,  to  l)e  heard. 

PiiyMiit  V.  Itujdow,  (i  K.  &  (J.,  85  ; 

6C.  L.  T.,  142. 

It;).   Entry-Kule  nisi  not  entered  cannot 

he  heard  -A  rule  hi.<«  returnahle  at  L"hamlier.s, 
liiit  not  entered  on  the  list  of  causes  for  argu- 
iiu'iit,  cannot  ho  heard. 

Jtnitelf  V.  h'oHs,  '2  Thorn.,  231. 

»4.   Equal  division  of  Court— Where  the 

Omit  was  eijually  divided  on  a  rule  for  new 
trial  tiie  rule  dropped. 

Emhrc.e  v.  Noikn,  3  R.  &  G.,  82. 

05.  Equal  division  of  the  Court  —  On  an 

i.i|iial  division  of  the  t'ourt  the  modern  practice 
sueiiia  to  he  that  the  party  who  has  obtained  a 
veiilici  as  a  general  rule  retains  it,  hut  the 
CiMut  lias  a  discretionary  power  to  order  a  new 
iiiiil  i)r  a  re-argument,  that  the  Court  may  re- 1 
liise  liie  costs  of  argument  where  neither  party  j 
prt'viiil.i,  and  that  on  appeal  from  inferior  tribu- 
nals the  decision  l)eh)w  is  affirmed. 

flnuj  V.  The  Sled  ComiHiny  of  Canada, 

3  R.  &C.,  506. 

06.  Equitable  considerations  should  be 

given  effect  to  by  the  Court— 

S'litlitf,  that  under  sec.  3,  cap.  124,  Rev. 
Stats.  (;<rd  series),  the  Court  is  required  to  inter- 
fere when  e(iuita1>le  considerations  arise  in  a 
legal  suit  (even  though  no  exercise  of  its  equita- 
lile  i)i)wer8  has  been  solicited  by  the  parties,  or 
(alltil  forth  by  the  pleadings),  and  to  provide 
siicii  lelief  as  the  circumstances  of  the  case 
ileniaiul. 

■Uel-iaac  et  al.  v.  McLeod,  1  N.  S.  1).,  2.32. 

9!.  Equitable  replication  without  leave- 
Departure  -In  an  action  of  trover  for  logs,  de- 
fenilaut  pleaded  denying  plaintiff's  properly  and 
possession,  and  plaintiff  replied  setting  up  an 
e'luitahle  right  to  the  logs.  The  Judge  at  nl.^ 
priw<  ruled  that  there  was  a  departure  in  the 
pleadings  on  the  part  of  the  plaintiff,  who  had  in 
"is  repliciition  set  up  an  ecjuitable  interest  in  the 
property  instead  of  the  legal  right  asserted  in 
lii'<  'ledaration,  and  he  directed  the  jury  to  find 
^  verdict  fur  defendant,  which  they  did. 
34 


The  Court  refused  to  set  asiile  the  verclict, 
•Smith  •).,  liolding  that  there  was  no  evidence  of 
property  in  the  plaintiff. 

Weatherbe,  J.,  that  the  replication  wuh  only 

a  reply  to  a  bad  plea  as  shown  by  the  pleadings, 

ChrUtit  V.  Thomax,  3  R.  &  <i.,  2(»;{. 

98.  Equitable   rights  aRer  Judicature 

Act— 

He/(l,  that  after  the  passage  of  the  Juiiica- 
ture  Act,  the  Judge  presiding  at  the  trial  was 
bound  to  give  effect  to  the  eiiuitable  rights  of 
the  parties,  though  the  cause  had  been  at  issue 
previously. 

Mi-PhevHon  v.  McDonald,  6  R.  A  V,.,  242  ; 

6C.  L.  T.,443. 

The  judgment  in  this  case  was  affirmed  on 
appeal  to  the  .Supreme  Court  of  Canada. 

OC.  L.  T.,3S5j 
12  .S.  C.  R.,  410. 

99.  Equity  and  Common  Law  Courts  — 

Electing  tribunal  -Restraining  proceedings 
elsewhere  —  The  plaintiffs  sought  in  this  suit 
discovery  of  facts  necessary  to  enable  them  to 
plead  to  an  action  at  law  brought  against  them 
by  the  defendant,  and  the  writ  contained  a 
prayer  for  relief  in  respect  of  the  matters  of 
which  discovery  was  sought.  On  taking  out 
the  writ,  plaintiffs  obtained  an  order  restraining 
defendant  from  further  action  in  the  common 
law  suit,  and  defendant,  having  filed  his  answer, 
sought  to  have  the  restraining  order  discharged. 

Hdd,  that  the  plaintiffs,  having  sought  relief 
in  the  Etjuity  Court,  had  elected  this  tribunal,  and 
could  not  at  the  same  time  make  the  matters 
referred  to  in  their  writ  the  subject  of  pleas  to 
the  action  at  law  ;  that  the  evidence  sought  for 
was,  therefore,  not  pertinent  to  the  defence  in 
the  action  at  law,  and  that  the  restraining  order 
having  been  granted  solely  on  the  ground  that 
discovery  was  necessary,  must  be  discharged, 
irrespective  of  the  sufficiency  of  the  defendant's 
answer  ;  that  the  present  suit,  although  it  could 
not  be  treated  as  a  suit  for  discovery,  still  con- 
tinued as  a  suit  for  relief,  but  that  plaintitfs 
might  discontinue  the  suit  and  plead  the  facts 
set  out  in  the  writ  as  a  defence  to  the  action  at 
law. 

The  Cape  Breton  Co.  (Limited)  v.  (lishorne, 

R.  E.  D.,240. 

100.  Equity- Appeal  ft'om  Judge  In  — 

Not  certified  by  counsel — Amendment  refused 
— The  allowance  of  an  appeal  by  the  Judge  in 
Equity  does  not  dispense  with  the  .statutory 
requirement  of  a  certificate  by  counsel.     The 


lo:)0 


PRACTICE. 


\m) 


aliMMii!  of  MUch  ccrtitii'iite  in  not  ii  dtrical  onor  8(i  by  ttii;  iiuinncl  on  I'illuT  HJiic,  mid  llu'ic  mis 

wliiili  can  \>v  iiint'nilril.  no  picii  on  ciiniliilili'  f^roiimlM. 

(Jimn  V.  Iknwniii,  (I  R.  &  *!.,  M»  ;  Mi'KurJi   v.  ^AV/ia  //o.  Co.,  "J  K.  k  <;.,  .'f.'ii ; 

11  (".  L.  T.,  1.S7.  '-'(".  L.  T.,!i» 
i 

101.    Ediillj -Appeal  from  JiiUkc  In    In.  103.    Eqult)    Practice  as  to  HcttinK  out 

terr.retation  of  expreswon  "  matters  of  prac-  admismons,  &c..  in  Bill    Tliu  Knylinl.  rule  iImu 

tice"  in  R.S.,  cap.  95,"  Of  procedure  in  Equity"  c.mverwitionB  with  and  iidniiBHionH  l.y  .Kfin.i. 

-Tl,..  ..xprcHsion,  .ittciK  of  pnicticc,"  u«..m1  "•'!«  nmnot  \m  given  in  cvi.U'mc  without  Imving 

in  stction  7.'*  of  nip.  !»."»,   K.  .S.,  4tli  suricH,    "Of 


procedure  in  Equity,"  as  not  lieing  sulijcct  t<> 
iijipt'iil,  ref<'rH  only  to  tiioHe  matters  of  mere  pro- 
cedure in  which  tlie  iludge  Iwin  h  discretion,  Imt 
not  involving  any  legal  princijile. 

The  decision  of  tlie  .Judge  in   K<iuity  on  the 
following  ])oiiit  was  helil  not  suKjcct  to  ajipeal 


heen  set  out  in  the  hill  of  conqtl.iint  is  ncit 
a])|>iica1)le  to  the  practice  of  tiie  Couri  of  ('limi- 
eery  in  this  I'rovlnce. 

Cii/ilirell  il  ul,  V.  KiiixvKUi  (t  nl.,  .lames,  Sits. 

104.    Evidence  -  Account  books     Only 
portions  referred  to  and  read  can  be  com- 
That  the  answer  to  the  plaliitltral.illiirof'essed    mented  on  to  jury-On   the  trial  of   Is.su.h  ..t 
to  be  the  persona!  answer  of  the  defendant,  but    f'li-'t,  an   account  book  was  produced,  kcpi   l.y 
was  not  signe.!  by  him.  ]  plaiutitf,  an.l  the  attention   of   the   Court   Wiis 

The  following  grounds  of  apjieal  were  disul-    turned  to  certain  entries, 
lowed,  as  involving  mere  matters  of  practice  :       \      fl<''l,  t»"'«.  although  in  going  into  an  acc.i.nt- 

1.  That  no  exceptions  can  be  taken  to  an  i'lg,  tvcry  portion  of  the  book  could  lie  refciicd 
answer  in  the  E(iuity  Court  of  Nova  Scotia,  but  [  to  by  botii  parties,  yet  on  tlie  trial  of  the  is.miis, 
all  objections  must  be  taken  by  demurrer.  ""ly  those  portions  of  the  book  could  be  icin 

2.  That  none  of  the  exceptions  to  defendant's  ]  mented  on  to  the  jury  which  had  been  reftrif.l 
answer  were  taken  In  time.  t'>  ""'1  read.     Where   the   trial   took   placi'  .t 

3.  That  the  exceptions  were  not  set  down  for  Halifax  before  the  Judge  In  E(|ulty,  and  the  vir- 
argument  in  the  time  allowed,  an.l  could  not  be  diet  was  found  on  September  '-'."itli,  and  the  rule, 
so  set  down  afterwards  without  an  order.  having  been  refused  by  tlie  Judge,  was  not  tuken 

4.  That  the  parts  of  the  bill  alleged  to  be    out  until  October  3()th, 

insufficiently  answered  were  not  set  forth  in  the        //fW,  that  assuming  tiie  plaintitr  to  iiavc  luul 
exceptions,    nor    referred    to    with    certainty.  ,  a  right  to  take  out  a  rule  under  the  Statute,  i- 
C round  of  appeal  that  the  judgment  is  contrary 
to  law  and  eiiuity  hc/d  too  general. 

H(l(l,  that  defendant,  iiavliig  undertaken  to 
make  an  account  part  of  his  answer,  could  not 
be  heard  to  .'•■iiy  that  the  bill  did  not  ask  for  it. 

Where" plaintiil'  took  thirty-one  exceptions  to    fendant  about   to   leave   the   Province  may  In 
defendant's  answer,  on  four  of  which  defendant  \  examined  de  halt  e.s,sf;. 

succeeded  on   appeal,  plaintiff  was  ordeied  to  |  Bamahy  v. /W^,  2  Thoin., 'J.'il. 

pay   four   thirty-firsts    of  defendant's   costs  of  ! 

appeal  and  defendant  twenty-seven  thlrty-firsts  !      ^^      ExCCUtlon    irregularly    IsSUCd   and 
of  plaintiff's  ;  the  costs  to  be  set  off.  |  i„j,ffective-Not  sufficient  ground  for  setting 

^Mvteer  V.  )r«//ncp,  5R.  &(!.,504.  ^gj^^    ^^    effective    execution    subsequently 
See  mirra,  77.    jggued  —  Costa    refused    to   successful   party 
•where  incurred  in  consequence  of  his  default 
102.    Equity  Court,  transmitting  cause  to-    -On  the  16th  October,  I«S1,  plaintiff  recoverol 
In  an  actio:-,  by  plaintiff  against  defendants  on  a  ;  judgment   against    defendant,  and  on  the  .'fr'l 
policy  of  insu-ance,  a  third  party  claimed  to  be  :  October,    1885,    issued    an    execution    for  tin 
interested  in  the  insurance  and  forbade  payment  j  amount,  describing  the  judgment  as  of  the  ImIi 
to  plaintiff.     Defendants  obtained   a   rule  nid  \  July,  1883.     Finding  his  mistake,  he  (lircitnl 
for  an  interpleader,  upon  argument  of  which    the  Sheriff  to  return  the  execution  as  not  siitis- 
before  a  Judge  at  Chambers,  the  Judge  of  his    tied,  which  was  done,  but  not  until  a  levy  li'i  ■ 
own  motion  transmitted  the  cause  to  the  juris- 
diction of  the  Judge  in  Equity,  under  4th  R.  S., 
c.  89,  8.  6. 

Hdd,  that  the  Judge  had  power  so  to  trans- 
mit the  cause,  although  he  was  not  moved  to  do 


had  allowed  too  nnich  time  to  elapse,  and  liinl 
by  the  delay  lost  his  right  to  do  so. 

Eaton  V.  Weathtrh,  R.  K.  l).,4v 

105.    Examination  de  bene  esse -A  de* 


been  made  on  defendant's  goods.  Plaiiititf  thtii 
issued  a  second  execution,  correctly,  foUowiii; 
the  judgment,  and  under  the  second  executi ':i 
the  goods  were  sold. 

Defendant  applied  to  set  aside  the  first  aiil 


1061 


PRACTICE 


1002 


mi'driil  ixcriilioiiM  and  all    piinri'iUnKii  of    tlif  action  for  aHHault  anil  laJHc  ini|iriHonnit'nl  di'lVii- 

SliciitT  iliiriiinilcr,  ami  an  apiiliiatinn  wiio  nuuli-  <lant  pk-ailfil  juHtifying  thu  nrr«»t  umlor  an  ux- 

oti  liilialf  of  plaiiititr  to  nvive  ami   Viuvw  lliu  ciMition  jhhiu'iI  l)y  a  Slipcniliury   MagiHliatt!  ami 

HtKl  cxirutiiin.  plcadrd  npj-cially  that  ixtriilion  had  hufii  iHHiii'd 

//./'/,  that  thf  tiitt  cxcfntinn  lii'iiij,' irrcKiilar,  coniinjindiu),' him  to  levy  for  the  aniotiiit  fioni 
iitiil  rmi  suili  an  I'.Xfiiition  ax,  u  hen  irtiirned  otf  iho  floods  and  chattclN  of  the  dulitor,  and  for 
witistinl,  would  1)0  a  har  to  any  fiitnru  claim  want  of  Koodn  to  taku  tho  Imdy  ;  and  thu  plain- 
fur  tin- amount  of  Ihi-  judgment,  and  HO  protect  till' licicin  not  having  any  j^omcIh  or  ohattdn  to 
tilt  ilifciidant  UH  well  an  hcivc  the  plaintiff,  it  Malinfy  thu  wuno  thu  defendant  huiein  att  and 
cdiiM  not  interfere  with  thu  ixMiiu  of  an  uffuetivu  heiiij,'  mucIi  consttvhlu  aH  aforuHaid  hy  virtue  of  tho 
i'xcciiticiii,<)r  jnntify  thu  nutting  aMidu  of  lliu  exu-  Haiil  writ  coniniittud  thu  phiinti,.,  Ac, 
intiiiii  liiNt  iHHiiud,  which  annwurud  tiiu  purjiosu  //,A/,  that  thu  Htatutory  replication  unahlud 
of  hiith  partiuH.  the  plaintifr  to  avail  himsulf  of  thu  ground  that 

('(Wis  wuru   refiiHcd  to  plaintiff,  though   huc-  he  had  goodH  whuruon  the  constahlu  could  have 

ccwful  in  resiHting  the   main  application,  as  it  levied. 

wiw  thnaigii    his  default  in  irregidarly  ittuuing  I  MiKtnzit  v.  Oldimi,  .'J  K.  &  (;.,  WM. 
thu  tir»t  execution  that  the  diliicidty  arose.           | 

MriJowjai/  tt  ai.  v.  Unffni,  7  K.  &  (i.,  i^Aj  '    \\\,   Executlon  wllhiii  8ix  ycars  -  Time 

7  V.  L.  T.,  ■S47.  for  issuing  a  «euond— When  a  lirst  execution  is 
sued  out  witliiu  six  years  of  juilgment,  it  is  not 

101.     Execution -Alias —Second   original  nucusaary  to  issuu  the  nuxt  execution  within  six 

--Wlure  the  original  and  alias  writs  are  not  years  from  the  issuing  of  the  one  last  previously 

siilKiienlly  connected,  the  Court  will  reject  tlie  issued. 
alias  clause  as  surplusage,  ami  sustain  the  writ 
aa  a  second  original. 


JMland  v.  Boryer,  Jainea,  45. 


Cochran  v.  Bell,  'A  N.  ,S.  1).,  488. 
.?.e,  also,  EXECVTIOBT. 


iau    V       *i       1  ^  .  ..    ,     **2'    Exhibits,  Identincatlon  Of- Where  a 

OS.    Execution-Indorsement  on  writ  of   deed  was  referred  to  during  the  argumuntheforc 

-  t  >s  not  necessary  that  there  should  he  an    »,„  p,,,,  Hench  of  a  rule -on' for  a  new  trial,  and 

m,lo,8e,ncnt  on   the  writ  of  execution   of   tho    was ol.jecte.l  toon  the  grou.ul  that  it  did  not  hear 

mcKle  n.  winch  it  is  to  be  executed.  j,„  (..i^j,,,,  „f  ^j,^  ,,„,,j,^  ^^,,,„  ^^-^^^  ^,,^  ^.,^^,^^  ,^^ 

Snthtrland  v.  Whddtn,  •_'  Thorn.,  410.  ^  ,„•„•  ^„-,^,  tut  the  minutes  described  the  deed 

and  mcntione,;  it  as  being  tendered  and  read, 

109.     Execution  put  In  evidence  —  When    the   Court  decided  that   the  identification  was 
judgment  also  should  be  put  in  — To  an  action    sutlicient. 

lor  cdiivciting  goods  of  the  plaiutitF  taken  by  '  Tupptr  v.  Camphull,  2  R.  k  C.,  p,  70. 

the  ilefcuilant,  a  .Sheriff,  out  of  the  possession  of 

plnimirt"s  father,  who  had  formerly  owned  the  I  113.  Extending  rule— Where  an  Injunc- 
gfioils,  ikfeudant,  attacking  the  transfer  on  the  tif)n  from  the  Kquity  Court  was  outstanding 
groiuiil  of  fraud,  pleaded  a  justification  under  an  I'ustraining  the  plaintiffs  from  proceeding  in 
execution,  and  on  the  trial  put  in  evidence  the  i  their  common  law  suit,  the  Court  refused  to 
execiitidu,  hut  not  the  judgment.  extend  a  submission  in  the  conunon  law  suit, 

Tlie  .Judge  instructed  the  jury  that  if  a  trans-    applied  for  to  enable  the  parties  to  proceed  with 


fer  had  taken  place  to  the  plaintiff,  the  defendant 
slioidd  have  shown  the  judgment  as  well  as  the 
execution. 

lldd,  that  this  was  no  misdirection. 

Ilaniion  v.  McLean,  3  R.  &  C,  101. 

On  upjiKti  to  the  Snpnme  Court  of  Canada, 


the  reference  whenever  the  injunction  should  be 
remov  ed. 

(liihome  V.  Cape  Breton  Co.,  2  R.  &  C,  374. 

114.    Foreclosure— Reference  to  master- 
Where  puisne  mortgagee  forecloses,  it  must,  in 


HM,  that  the  Sheriff  was  entitled  nnder  his    l''*",  !!'!!/"'^'"A'!'  L'^!''^^"'"\^°_"  ;^'"'^'""'  *** 
pleas  to  have  it  left  to  the  jury  to  say  whether  the 
plaintift'  had  shown  title  or  right  of  possession  to 
'he  goods  in  ijuestion,  and  therefore  there  was 

iiisiliret  ion. 

McLean  v.  Hannon,  3  S.  C.  R.,  706. 


find  what  is  due  to  prior  incumbrancers. 

Crtujhton  v.  Moore  et  al.,  2  Thoni.,  '2'27. 

See,  also,  MORTOAGE. 
115.   Foreign   companies  —  Proceedings 

against— An  application  was  made  by  Wallace 
to  rescind  an  order  made  for  the  payment  to  the 


110.  Execution  to  take  the  body  for  want , ^  ., 

ofgoods— Plea— statutory  replication— To  an  |  plaintiffs  of  the  surplus  proceeds  of  a  sale  of 


locn 


PRACTICE. 


l()i;4 


di-fnniliuitu'  liiiiitK  on  tlif  kiouihI  flint  tl.i'  jiiilj;- 
iiifui  miiU-r  wlii.:li   iiliuiilillH  iluiiuud   lliu  pin- 
vwih,  luul  which  wiiH  takfii   l)j    tl'jfault,    wuh 
ImHfrl  on  notim  (jivt-ii  witlioiit  uiiy  ciiiisiilfnitiiin. 
AViilliicu  luul  taken  prcKX'i'ilinK"  ii^ainiit  the  ilo-  | 
fcndiintM  under  4th  H.  S,,  ".  1(7,  h.  '-'(l,  as  a  foreign  j 
company  doing  ImsinenH  in  thin  l'rovini:«!  hy  an  ! 
agonl,  l)iit  tho  agent  had  not  been  served.  i 

//<Ai,  that  for  want  of  m-rvico  on  the  agent  | 
Wallace  wa«  not  in  a  position  to  make  the' 
application. 

Ahiion  it-  Mavkintoxh  v.  Coh  llarhor  Laud  Co.,  ] 

1  H.  &(}.,.M9«. 

See  FOREIGN  COMPANIES. 

116.  ForelKii  corporation)!-  Proceedings 

against —'I'll'-'  proviHioiiM  of  the  Practice  Act, 
which  <nal)le  proccedingH  to  he  taken  in  the 
Supivnii!  Court  agaiimt  a  defendant  abroad  after 
service,  do  not  extend  to  suits  against  corp<ira- 
tionti.  ] 

liel/oni  V.  Sydney  <(•  LotiMurii  It'y  Co., 

•2N.  .S.  1).,7.3.  1 

117.  Grounds  In  rule -The  ground  was 

taken  in  the  rule  to  quash  the  irrfiomri  that  the 
bond  liled  was  irregular  and  bad  in  substance 
and  form.  I 

H<ld,  that  under  this  ground  the  objection' 
could  not  be  taken  that  a  bail  piece  should  have 
been  liled,  instead  of  a  bond. 

Tu]>i>er  \    Murphy,  .S  R.  &  (i.,  173. 
•SVe  CERTIORARI. 

118.  Guardian  of  lunatics  —  Suit  by  the 

guardian  in  his  own  name— In  an  action  by 
and  in  the  name  of  the  guardian  of  a  lunatic, 
for  a  debt  due  tho  lunatic,  the  defendant  did 
not  go  into  his  defence,  contending  that  the 
action  was  wrongly  brought,  and  judgment  in 
the  County  Court  was  given  for  plaintiff.  On 
appeal,  the  Court  allowed  plaintiff  to  amend, 
and,  defendant  contending  that  there  was  a 
defence  on  the  merits,  a  new  trial  was  ordered, 
but  without  coats,  first  because  the  new  trial 
was  an  indulgence  to  defendant,  as  the  Court 
might  in  such  a  case  give  judgment  for  the 
plaintiff  on  the  amended  record ;  secondly,  be- 
cause, had  the  defendant  entered  on  his  defence 
in  the  Court  below,  a  new  trial  would  possibly 
have  been  rendered  unnecessary  by  his  success. 
Seaman  v.  Porter,  4  R.  &  G.,  292  &  495. 

119.  Injunction  dissolved -Plaintiff  hav« 

ing  obtained  an  injunction  to  restrain  the  sale 
of  a  mining  property  in  which  ho  was  interested, 
the  defendants  made  answer  under  oath,  nega- 
tiving all  the  allegations  on  which  the  plaintiff's 
claim  to  relief  was  founded. 


H'/il,    that    credit     luUHt    be    given    lo    tin; 

answer,  and  the  injunction  inust  1)«  dinMoKiil 

(frauil  not  having  been  uliown)  under  I  lie  piiiMi- 

pie  laid  down  in  Chaidin  v.   Whiii,  S  Vik.,  M'. 

JInmilton  v.  Xorlhup,  2  N.  ^^.  D.,  Jii.l. 

130.  Il\|unCtlon  Principles  on  which  la- 
junctions  are  granted,  and  practice  as  to  athiluvitu 
on  applications  therefor  discnssucl. 

Hamilton  tt  al,  v.  Uronn  et  al.,  2  OM.,  'im. 


Sen  INJIMTIOS. 

I'Jl.    Insolvency  —  Judge   no   power  lo 

order  meeting  of  creditors  to  be  held  out  of 
hi8  jurisdiction  —  Where  the  Judge  of  ihu 
County  Court  for  District  No.  2,  Luncnljuii,', 
Ac,  passed  two  orders,  one  for  postponing  ii 
meeting  <if  creditors  called  to  consider  an  otfeiiif 
eomposition,  and  ordering  tiie  assignee  to  return 
the  estate  until  diseharge  applied  for,  mid  the 
other  ordering  a  meeting  to  be  held  at  Ihilifax, 
tho  Court,  holding  that  the  Judge  touiil  m 
order  such  meeting  out  of  his  own  jurisdiction, 
set  aside  both  orders,  as  both  had  a  coiiiiiioii 
object,  and  directed  tho  costs  of  the  appeal  to  lio 
paid  out  of  the  estate. 

/(,  >f.  SnIhM-land,  ,T  R.  &  C,  8!l. 

See  INSOLVEXCV. 
122.    Indorsement  of  claim  for  interejit 

on  writ— A  special  indorsement  on  a  writ  cluim- 

ing  interest,  on  a  sum  named,  from  the  date  ii 

j  the  writ  until  judgment,  gives  a  plaintiff  >")  \%\\^ 

to  interest  in  cases  whore  he  is  not  otiierwi^' 

!  entitled  to  it. 

j  NwriH  V.  Taylor,  1  N.  S.  1).,4!)1. 

'    123.    Interlocutory  order— Appeal  flpom- 

'  An  order  was  made  for  a  commission  to  ..Au'iiiiie 
j  a  witness  dated  on  a  day  when  the  Court  mm 
I  sitting  i«  banco  and  signed  by  the  Prothmiotary 
i  in  the  usual  form  of  orders  granted  Ijy  tlie 
,  Court. 

Held,  that  as  the  order  was  granted  hy  t!f 

'  Judge  before  whom  the  cause  was  tried,  aii'l 

!  signed  by  the  I'rothonotary  at  his  instance,  ' 

must  be   considered  as  an  order  made  liy  tlir 

Judge  in  the  course  of  the  trial,  and  the  mw 

to  set  it  aside  was  premature. 

Rigby,  J.,  disHbutin;/. 

Quirk  V.  Twinimj  et  al.,  5  R.  &  G.,'^' 

124.   Interlocutory  order,  to  compel  ei- 

ecutor  to  pay  into  Court  the  proceeds  of  sale-'. 
in  a  suit  brought  to  remove  the  executor  fron' 
office,  refused,  the  affidavits  on  which  it  «»■' 
founded  being  answered  in  every  essential  l«r 
ticular. 


106." 


PRACTICE. 


1060 


Suniiimry  rt'ineily   proviUfil  liy   I'rohiite  Act  i      Notice  nf  u|>|)i<iii'uik'(-  nut   iiccuHMiiiy  w hen  a 
rt'i'iiiMiiii'iKlcil,  party  iipiiuiirM  in  pt'iHon, 

Siuith<r.i  tl  nl.  V.  Smilhirs,  K.  K.  U.,  iKl  Croi.ikill  v.  Allison,  '2  Thoiii.,  'JHM. 


1*25.   Interpleader-  Tbe  County  Court  has 

|iii«fr  t"  i^taiit  iciiff  iilnler  tliu  Ht'ctioim  of  tlic 
IW'tice  A'Jt  "Of  Interpliuilcr." 

Cooi>ir  V.  My/w,  '2  R.  &  C,  3H-.'. 

I'iA.   Interpleader- Prartlrc  as  to— 

SVe  INTEKPLEADEK. 

127.    InterroKatorleH  —  Tbe  Court  will 

(ink'i' a  <k'fuii(laiit  corporation  doin^  buhiiivHk  in 
Ni)va  Scotia,  tiiou^'h  incorporated  aliroail,  to 
iiiiswtT  intorrogatorit'8,  luidei  4th  K,  S.,  u.  Ott. 
The  cid'icerH  of  siicli  company  can  liu  interro- 
pttt'il,  tiioiigh  not  niuntioneil  )>y  naino  in  tliu 
coniiiiiKKiou  to  interrogato, 
lUirtiiiil.  V,  Wistirti  Union  Tt/fi/ra/ih  Co., 

'2  K.  A  C,  535. 

See  INTERROGATORIES. 
1'2S.  IrreKUIarIt)    AttackInK  proceedings 

for— Where  tiio  fntficiency  of  the  attidivvit  to 
liiild  to  liail  i.M  attacifcd,  tlie  rule  is  to  set  aside 
till'  iinler.  and  not  tiie  capias, 

N'o  sv.ppleinental  affidavit  will  he  received 
after  a  party  appears  to  show  cause  against  the 
iinler  iiiii. 

A  piirty  cannot  ^hjoct  to  the  suHiciency  of  the 
uttidiivit  to  iiold.  to  hail,  unless  it  is  expressly 
rtiited  as  a  ground  in  his  onler  nini. 

Miir/ihi/  V.  Trenholm  <J  a/.,  2  Thorn.,  '228. 

129.  Irregularity  In  replevin  writ  -  No- 
tice on  writ— Amendment— A  writ  of  rcplev'n  ; 
hiiviii^;  hecn  issued  without  the  notice  re(|uire(i 
to  lie  indorsed  thereon  liy  tiie  Practice  Act,  I 

flilil,  tliat  it  was  irregular,  hut  might  he 
iiiiiendod  on  payment  of  costs,  ! 

Cameron  v.  Cameron,  1  N.  S.  1).,  170.  j 

130.  Irregularity  In  writ  — Waiver-^ An 

appeiiiiiuce  and  plea,  under  protest,  served  Imt 
lint  tiled,  held  no  waiver  of  tiie  rigiit  to  move 
til  miilie  ahsolute  a  rule  uim  to  set  aside  the  writ 
olitaiiied  before  the  appearance.  i 

Carty  v.  Boniitit  et  re/.,  .3  R.  &  C,  293. 

131.  Irregularity—  Nullity  —  Appearance 

— \Mieii  pleas  were  pleaded  l)y  defendant  in 
person,  and  the  plea  tiled  was  suhscribed,  and 
tiie  one  served  was  not, 

^tW,  though  an  irregularity,  it  did  not  make 
thi-'pleaa  miUhy,  and  entitle  plaintiff  to  judg- 
ment Ijy  def-'ut. 


13*i.    Irregularity  -  Waiver -The  writ  of 

summons  will  not  lie  set  aside  for  any  defect 

I  therein  aftei  appearance  and  plea,  whether  the 

defect  makes  the  writ  a  nullity,  or  only  irregidar. 

A  defect  which  makuH  a  proceeding  a  nullity 

will  bo    considered  as  waived  when  the  cause 

has  gone  to  another  stage  in  which  the  validity 

of  the  proceeding  has  eeaNed  to  be  important. 

Rank  of  Xora  Scotia  v.  AtvKerrow, 

ft  R,  *(;.,'.'7.1. 


138.   Irregularlty-Walver  of  -  The  affl* 

davit  on  which  the  ap|)lication  was  intended  to 
be  made  was  served  separately  fnmi  the  notice, 
although  both  were  served  in  due  time.  The 
Statute  had  the  words  "  with  the  notice." 

Hdil,  by  .McDonald,  C  J.,  and  Thompson,  .J., 
that  the  Eervice  need  not  be  concurrent,  as 
"with"  meant  "also." 

II)'ld,  by  Weatherbe,  Rigby  and  Thompson, 
.1.1.,  that  the  irregularity,  if  any,  was  waived  by 
the  defendant  reading  an  affidavit  in  answer  to 
the  one  so  served. 

Smith  V.  Smith,  5  R.  ki'<.,  42. 


134.  Issues— Framing  In  equitable  rausc 

—When  issues  for  a  jury  are  to  be  framed  in 
e(|uitable  cases,  the  proper  course  is  for  either 
or  both  parties  to  take  out  a  summons  fir  rule 
niti,  setting  out  the  issues  they  desire  to  have 
tried  before  a  jt'ry,  (in<l  ujion  argument  lieforo 
him  the  Judge  will  determine  whether  such 
issues  are  proper. 

Humphrey  v.  Jonen,  2  Thom.,  7. 

135.  Judgment,  application  to  xet  aside 

— An  application  to  set  aside  a  judgment,  on  the 

ground  that  it  was  entered  against  good  faith, 

and  contrary  to  all  understanding  between  the 

attorneys  of  the  parties,  must  be  made  witiiin  a 

reasonable   time,     Where  such   an  applicaticm 

was  made  nearly  eight  months  after  the  signing 

of  the  judgment,  the  Court  refused  to  entertain 

it. 

MrCurdy  v.  Munlod;  I  N.  S.  D.,  409. 

136.  Judgment— Action  on,  or  revivor- 

Where  a  party  has  obtained  a  judgment  against 
another  he  may  proceed  upon  it  at  common  law, 
and  is  not  compelled  to  proceed  by  writ  of 
revivor. 

Benjamin  v.  Campbell  et  al.,  2  N.  S.  IX,  .320. 


1067 


PRACTICE. 


1068 


137.  Judgment,  arrest  of-  A  motion  in 

arrest  of  jiiilgmeut  may  lie  iiiaile  for  any  sul)- 
staiitial  defect  wliicli  appears  upon  tlie  face  of 
the  reoord.  If  the  ohjeutiou  he  valid,  the  wliole 
proceedings  will  he  set  aside,  hut  the  party  may 
be  indicted  again. 

An  indictment  is  clearly  had  wiiere  two 
offences  are  charged  in  a  single  count. 

Wiiere  the  names  of  third  persons  cannot  he 
ascertained,  it  is  sufficient  to  state,  "  a  certain 
pei'son  or  persons  to  the  jurors  aforesaid  un- 
known." 

Queen  v.  niack-i>;  1  N.  .S.  1).,  .SS.*}. 

See  CRIMINAL  LAW. 

138.  Judgment  by  —  Defoult  for  penaity 

—  riaintitf,  as  Inspector  of  River  Fisheries, 
brought  an  action  for  a  penalty  against  defen- 
dant, and  the  latter  not  appearing,  entered  up 
judgment  against  him  for  .*!1(),  the  full  amount 
of  till!  penalty  wiiich  could  l)e  imposed. 

//  Id,  tliat  before  doing  so,  tiie  plaintiff  sliould 
have  given  some  proof  of  tlie  ott'ence  before  a 
Judge  of  the  Court,  who  would  then  ilecide,  and 
<lii'ecl  what  penalty  should  be  imposed. 

Mason  V.  Mahar,  I  N.  .S,  I).,  314. 


he  entered  for  plaintiff,  rather  than  .send  the  case 

back  again, 

Harrison  v.  Smith,  7  R.  &  < !. ,  510 ;  8  C.  L.  T.,  TiS. 

143.  Judgment  -Riglit  of  piaintilTto,  wbere 

action  settled  before  delivery  of  decision  in 
his  favor — I'laintitf  recovered  a  verdict  on  a 
policy  of  insurance  for  S'2000,  subject  to  the 
opinion  of  the  Court.  After  the  argument  nf  u 
rule  jji'.si,  and  before  judgment  pronounced  on  ilie 
rule,  tiie  parties  entered  into  negotiation.s  fm  u 
settlement,  the  result  of  which  was  that  plaintirt', 
about  a  fortnight  before  the]  delivery  of  jmlg- 
ment,  accepted  81(XX>  in  full  of  his  claim  and 
delivered  up  his  policy  to  the  company.  .Imig- 
ment  was  afterwards  given  in  his  favor  for  the 
full  amount  of  the  claim,  and  a  rule  nini  Wiis 
taken  by  defendants  to  compel  tlie  jilaiiititl'  in 
tile  a  discontinuance,  or  in  tlie  alternative  tiiat 
all  proceedings  under  the  judgment  slioiihl  la- 
stayed.  The  Court  refused  to  interfere  with 
the  plaintiff's  common  law  right  t(j  enter  jmlg- 
ment,  but  stayed  execution  for  thirty  days,  lluit 
defendants  might  take  such  steps  as  they  might 
be  advised. 
Peppi/  V.  Xor/h  British  Ins.  Co.,  1  11.  &  ( !.,  4Sii. 

Ste,  also,  JUDfiMEXT. 


139.   Judgment  by  default-Setting  aside 

— An  affidavit  to  set  aside  a  regular  judgment 
by  default  must,  in  general,  lie  made  l)y  the 
defendant  himself,  and  not  by  his  attorney. 

Tlic  deponent  in  sucli  a  case  must  swear  to 
a   personal   knowledge   of    the   facts,  ami   not  i  accounts,   said   amount  to   be   paid   from   pr 
merely  to  his  belief. 


144.     Jurisdiction  as  to  amount  -  Debt 

reduced  by  cash  payments  —  I'laintitf  sutfl 
in  the  County  Court  on  an  agreement  tiiat 
he  should  receive  88CK>  as  the  full  amount 
due     him    on    a     settlement     of     jiartneisiiip 


;  ceeds    of    partnership   debts    to   l)e    colliicted. 


Malom  v.  Di'tn/nn,  1  Old.,  «97.  1  l^efendant  contended  that  none  of  the  debts  wer. 

;  collected  before  November,  1881,  so  that  iiotiiing 
was  due  until  tlien  ;  that  the  paynient.s  creilileil 
by  plaintiff,  being  previous  to  that  date,  cnulii 
not  be  connected  with  his  claim,  which  \va< 
therefore  beyond  the  jurisdiction  of  the  Court. 
Held,  that  the  payments  were  made  on  account 


140.   Judgment  — Date  of  —  The  date  of 

pronouncing  tlie  decision  of  the  Court  is  lield  to 
be  tlie  date  of  judgment  in  cases  of  appeal  to 
the  Privy  Council. 

Burton,  Adtn'r  v.  Burns,  2  R.  &  C,  349. 


141.    Judgment 


of  the  agreement,  and  that  the  debt  having  iuiii 
reduced  by  cash  payments,  the  plaint itf'.s  claim 
Entry    of,   ordered    in    „.,is  „ithin  the  jurisdiction  of  tlie  Court. 


favor  of  appellant  —All  the  facts  being  before 
the  Court,  and  it  appearing  that  the  plaintiff 
could  not  succeed  if  the  case  were  sent  to  a  new 
trial,  judgment  was  ordered  to  be  enteied  for 
the  defendant  with  costs. 
Roach  V 


Preedy  v.  Baldwin,  5  R.  &  (i.,  n" 
See  JURISDICTION. 


145.   Jury-Application  for,  on  clrcull- 

i      Held,  that  the  objection  that  the  applicatim! 

Ware,  7  R.  &  (i.,  330  ;  !  for  a  jury  was  made  to  and  the  order  giaiitol  hy 

7  C.  L.  T.,  377.    tiie  Court  on  circuit  instead  of  a  Judge  of  tin 

Court,   and   the  objection   tiiat   the  venire  «aj 

142.     Judgment  on    appeal   from  County  ,  not  Hied  within  thirty   days  were  obviated  h.v 

Court  ordered  for  appellant— On  appeiil  from  ,  section  52  of  chapter  70,  providing  that  piocted 

a  judgment  given  by  the  County  Court  for  defen-    ings  should   not    be  set   aside   upon  any  niire 

dant,  j  technicality. 

Held,  judgment  having  been  given  for  defen- !  lHreXictafixandAtlanticPailu-ay,2V..k(':-'''-j 
dant  on   a  former  trial,   judgment  should  now  j  ^        1  C".  L.  T.,iii 


lOfiD 


PRACTICE. 


1070 


14<(.  Jury  discharged  where  legal  tiucstlons 

only  are  to  be  decided— New  trial  refused— 
I'laiiititr  beuame  owner  l)y  purcliaso  of  all  tiie 
lights  ami  property  of  several  companies  iiicor-  j 
porafpil  l>y  various  legislative  enactments,  for 
the  piir])os(!  of  constructing  or  comjjletinL'  a  canal 
lictwoen  Halifax  Harbor  and  the  IJasin  of  Minas, 
aiiil  as  sucli  owner,  brougiit  an  action  of  trespass 
iigainst  (lefentlant  for  cutting  and  carrying  away 
a  i|iiiuitity  of  ice  from  the  surface  of  a  portion  of 
the  first  Dartmoutii  Lake,  lieing  a  portion  of  the 
cuiuil  property. 

The  learned  .7  udge  before  whom  the  case  was 
tried,  after  iiearing  tlie  evidence  for  the  plaintifl' 
(iiul  the  defendant,  disciiarged  the  jury,  and 
(iidured  judgment  to  be  entered  for  defendant, 
(111  the  groiuids  that  tlie  place  where  the  acts  of 
trespass  were  alleged  to  have  been  committed 
ii:i(l  never  l)een  legally  expropriated,  that  tlie 
corporations  tiirough  which  plaintiff  claimed 
liail  no  light  to  tiie  ice  but  only  an  easement  in 
the  waters,  and  that  the  title  to  the  locus 
involved  legal  (piestioiis  only,  leaving  no  matter 
of  fact  upon  which  it  was  necessary  to  take  the 
opinion  of  tiie  jury. 

Hil(U  on  appeal,  that  the  action  of  the  learned 
.Tiitlgc  in  discharging  the  jury  was  not  ground 
for  a  new  trial,  especially  as  plaintitT's  counsel 
at  tlie  trial,  had  lieeii  asked  if  he  could  sug- 
gest any  matter  of  fact  to  be  submitted  to  the 
jury,  and  had  admitted  that  he  could  not. 

Pir  .James,  .J. — That  the  .-Vets  of  incorporation 
cniifeiTcd  upon  the  coinpanies  under  which 
|ilaiiilitT('liiiiiied  no  title  to  the  soil  or  bed  of  the 
lakes,  and  that,  even  if  defendant's  title  had 
lieen  expropriated,  it  would  have  been  only  to 
the  extent  necessary  for  the  purposes  of  tiie 
liii'.al  and  wcnild  not  have  interfered  with  defen- 
ilaiii's  title  to  the  bed  of  the  lake  nor  his  right 
to  use  the  waters  cither  in  a  fluid  or  congealed 
ennilitioii. 

/'•(•  .McDonald,  J. — That  the  case  was  one  in 
wlii'h,  under  the  old  practice,  the  Judge  would 
have  been  justified  in  leaving  notliing  to  the 
jury,  but,  on  the  contrary,  nonsuiting  the 
[ilaintitT;  and  that,  under  the  present  rules,  a 
verdiot  and  judgment  could  l)e  entered  instead 
of  a  non-suit  as  formerly. 

Fairhankt  v.  Crcii/hfon,  20  N".  S.  R,, 

(8  R.  &(;.), «:?. 

Ste,  rt/.so,  JURY. 


U1.  lache.s— Motion  to  rescind  order- 
Accounting  for  delay — Rule  iiin  to  rescind  an 
"iilcr  of  a  Judge  at  Chainljcrs,  fr()in  which 
there  was  an  appeal,  discharged  ^yliere  the 
motion  was  delayed,  and  the  affidavits  read  on  , 


the  argument  did  not,  in  the  opinion  of  the  Court, 
suffic'iently  account  for  the  delay. 
Crilteriden  v.  Tht  Municipality  of  OuysUordinjh, 

4  R.  &  G.,  0-_'. 

148.  Laches- Must  he  accounted  for  — 

Rule  to  open  ju<lginent  by  default  refused  where 
the  defendant  was  fully  aware  of  all  tiie  pro- 
ceedings and  failed  to  account  for  his  delay  in 
moving. 

Cumminijx  v.  Gladwin,  4  R.  &  (J,,  IDS. 

On  appeal  to  the  Sujrreme  Court  o/  Canai/a, 
Hfhl,  tiiat  the  judgment  appealed  from  was 

not  a  final  judgment  within  the  meaning  of  sec. 

\\  of   the   .Supreme   Court   Amendment   Act   of 

1S"9,  and  was  not  appealable. 
IIi:lil,  also,  that  if  tiie  Court   could  enlfilain 

the  appeal  the  matter  was  one  of  procedure,  and 

entirely  within  tiie  discretion  of  the  Couit  below, 

and  the  .Supreme  Court  of  Canada  would  not 

interfere. 

(iladiriii   v.  Cinnminiji,  Cas,  Digest,  '2-H>. 

149.  Laches  -Waiver  of  objection  by  — 

Plaintiff  brought  suit  against  defendants  as  ad 
ministrators  of  the  estate  of  John  Heaton  t(. 
recover  an  amount  due  on  an  account  stated  and 
interest,  and  obtained  judgment  by  default,  no 
answer  having  been  put  in  ;  after  which  it  was 
referred  to  a  Master  to  ascertain  the  amount  due. 
At  the  investigation  all  the  parties  were  repre- 
senteil  by  their  respective  attorneys,  and  the 
Master  rejMjrtcd  a  sum  due  by  defendant.  .Some 
of  the  defendants  having  objected  to  the  report 
on  the  ground  that  many  of  the  charges  com- 
prised in  the  settlement  had  been  originally 
entered  against  another  party,  and  that  no  right 
of  acti(m  existed  against  John  Beaton's  estate, 

Ili/d,  that  the  objection  was  not  now  open, 
but  should  have  been  taken  in  an  answer  to  the 

writ. 

McXiil  V.  liiatoii  el  at.,  R.  E.  D.,  14.4. 

*:'    SITR.1,    104. 

150.  Levy  -Instructlons-In  Instructing  a 

sheriff  to  levy  an  execution,   it  is  irregular  to 

direct  lum  to  levy  for  interest  on  the  amount  of 

judgment. 

FU.iiji-r  V.  Taylor,  James,  \'M. 

151.  Levy  -  Remedy  where  Sheriff  has 

improperly  omitted  to  levy— -If  a  Sheriff  has 

improperly  omitted  to  levy,  the  remedy  is  by 

action  against  him  and  not  by  rule  to  amend  ids 

return. 

Crei<ihton  et  al.  v.  DanitU,  James,  304. 

152.  Levy-When  It  may  be  made -From 

what  time   eflectual— When  the  appraisement 


i 


1071 


PRACTICE. 


1072 


shows  that  the  appraisers  were  sworn  ami  the 
SherifPs  return  refers  to  the  appraisers'  warrant, 
tiie  swearing  of  the  appraisers  siiHiuiently  ap- 
pears. 

"  Service  on  the  agent  of  process  to  appear," 
in  sec.  26,  c.  97,  of  4th  Rev.  Stats.,  means 
sei'vice  on  the  company's  agent  of  process 
re(|niring  the  company  to  appear. 

Levy  uniler  the  attachment  under  that  chap- 
ter may  he  made  before  service  on  the  agent. 

The  k'vy  is  effectual  from  tlie  time  of  seizure 
of  the  property,  and  not  merely  after  appraise- 
ment and  selection  of  tiie  property  to  be  held  to 
resjwnd  the  judgment. 

The.  Mtrchaitt'i'  Hank  v.  The  Sfed  Company  of 
Caiinila  ( Limit nl ),  .">  R.  A  (t.,  '2.5S.  Stt  5th 
Rev.  Stats,,  c.  104,  O.  xlvi,  R,  4. 

Sec  LEVY. 

lo3.   Merger— Doctrine  of- Judgment  was 

taken  for  plaintiff  in  .lanuary,  1874,  on  a  pro- 
missory note  of  defendants  to  one  Steadman, 
inihirseil  to  plaintiff,  who  issued  an  execution, 
and  afterwards,  assigned  the  judgment  to  Stead- 
man,  by  wiioni  a  second  execution  was  issued. 
Defendants  sought  to  have  this  execution  set 
a*'ide,  cm  tlie  ground  that  the  judgment  had  been 
taken  in  violation  of  a  settlement  with  Steadmai?, 
who  had  agreed  to  accept,  and  had  received  a 
mortgage  in  uill  payment.  The  evidence  was 
conflicting,  and  tlie  Court,  holding  that  there 
was  no  foundation  for  tiie  dortrinc  of  merger, 
discliarged  the  rule  with  costs. 

McDonald  v.  Mitchdlet  al.,  3  R.  &  C,  "274. 

134.    Minutes  of  Judge— Explanation  of, 

given  by  Judge — 

H<:lil,  that  the  Court  in  hanco  couhl  receive 
the  explanation  of  the  Judge  as  to  the  nature  of 
the  (jucstion  to  which  a  .statement  of  defendant 
on  the  minutes  of  evi<luiict;  was  an  answer. 
Royal  Canadian  Ins.  Co.  v.  Smiih, 

.-)R.  &(!.,  3-22. 

Tlie   judgment  in  this  case  was   reversed  on 

appeal  to  the  Supreme  Court  of  Cana<la,  ISth 


Xorcmhcr,  ISS.'f. 


Cas.  Digest,  216. 
S,:t  MINUTES  OF  JUDGE. 


lo3.    Motion  to  rescind  Judge's  order— 

CompanieR  Winding-up  Act— Application  to 
rescind  winding-up  order  —  Necessity  to 
move  Judge  first — Affidavit  as  to  information 
and  belief  (before  the  Judicature  Act)— State- 
ment of  Judge — Before  an  application  is  made 
to  the  Court  to  rescind  an  order  of  a  Judge,  ap- 
plicati(m  should  be  made  to  the  Judge  who 
granteil  the  order,  and  the  Court  will  require 
positive  proof  that  such   application  has  been 


made.     Affidavit  of  information  and  belief,  and 

statement  of  the  Judge  in  Court,  held  not  sutli- 

eient. 

In  re  Stael  Company  of  Canada  (Limited), 

5R.  &(;.,  17. 

150.    Motions-  The  Court  will  not  lioar 

motions  npon  days  set  down  for  arguniiiiis, 
except  in  special  circumstances, 

Scott  V.  Awpis,  James,  ]H;i, 

157.  Motion  to  rescind  Judge-s  ordcr- 

Hilil,  that  an  appeal  from  the  order  of  Young, 
C.  J.,  having  been  refused,  a  motion  to  rescind 
the  order  was  properly  made.  The  1'ractii.c 
Act,  4tli  R.  S.,  e.  94,  s.  8,  provides  tliat  in  idl 
cases  appeals  shall  be  allowed  wliere  jiartits 
think  themselves  aggrieved  by  Judge's  orders. 
The  case  of  a  Judge  refusing  an  appeal  is  ikjI 
provided  for  by  our  Statute,  and  in  siicli  cuses 
the  English  practice  has  to  be  resoiteil  to. 

In  re  Cameron's  Circus,  2  K.  I'c  (i.,  24S. 
1  C.  L.  T.,  Toil. 

158.  New  trial  -When  granted— 

Set  NEW  TRI.ll. 

150.    Non-.|oinder  of  parties  entitled  us 

tenants  in  common--Verdict  sustained  -TliKr 
of  tlie  plaintifl's  in  an  action  of  ejectnieiil  wiiv 
(dearly  shown  to  be  entitled  to  the  possessidn  nf 
the  land  claimeil,  as  tenants  in  coiiininn  \t'illi 
others  who  were  not  joined  in  llie  action  iis 
plaintiffs. 

IIc/il,  that  the  verdict,  which  was  for  jiliiiii 
j  tiffs,  could  not  be  set  asiile  <m  the  grouml  tlwit 
'  the  other  tenants  in  common  were  not  joined,  or 
j  that  the  venlict  did  not  state  the  proimrtinn  ::i 
I  which  plaintiffs  were  entitled,  tlie  practiit;  at 
\  this  Court  ilitferiiig  in  this  respect  fnjin  tlif 
English  practice. 

Ellis  (t  al.  V.  Colonial  Market  Coin/iuiii/, 

3  R.  &  C,  lilii. 

See  PIE.UIINC. 

160.  Non-suit  on  argument  -riaintllflirld 

a  bill  of  sale  of  a  pair  of  oxen  from  Mcl.end  tlit 
owner,  who  continued  in  possession,  the  bill  "t 
sale  being  duly  recorded,  and  upheld  as  valid  hy 
the  jury.  After  making  the  bill  of  sale,  Mibcml 
was  arrested  at  tlie  suit  of  defendant,  and,  on 
swearing  out  of  jail,  assigned  the  oxen  to  tlio 
defendant,  who  sold  them  at  auction  to  Wiidc; 
whereupr)])  plaintiff,  un<ler  a  writ  of  replcviii 
against  defendant,  took  the  oxen  out  of  the 
possession  of  Wade,  who  was  no  party  to  the 
suit.  Plaintiff  having  obtained  a  venlict,  the 
Court   set  the  verdict  aside,  with   cost.s,  iioii- 


1073 


PRACTICE. 


1074 


suiied  the  plaintiff,  giving  the  defendant  the 
oostR  of  tlie  action  Imt  not  of  tlie  trial,  and 
iliii'cted  tlie  replevin  bond  to  he  put  on  file, 
siihject  to  the  order  of  the  Court  or  a  Judge. 

/V«.s«^r  V.  Ilrnre,  3  R.  &  ('.,  01. 

See  NON-SUIT. 

161.    Notice  of  examination  of  wltneHs  - 

Wiiere  a  notice  for  the  e.xaniination  of  a  witness 
ill  Imii  (sue.  at  seven  o'clock,  p.  m.,  was  left  at 
the  otBce  of  the  opposite  attorney  shortly  after 
tour  o'clock  in  tlie  afternoon  of  the  previous 
iliiy,  it  was  helil  sufficient. 

Tohin  V.  Dunn,  2  Thorn.,  4(C2. 

102.    Notice  of  motion— InsufB  lent  notice 

of  motion— Party  appearing  under,  entitled  to 
costs  though  not  bound  to  appear  and  not 
called  upon— A  motion  on  liehalf  of  defendant 
for  judgment  for  want  of  prosecution  was  refused 
'III  tlie  ground  tiiat  plaintiff  had  heen  restrained 
finin  prosecuting  the  suit  at  the  instance  of 
tlie  defendant. 

A  rule  having  been  moved  for  disniis.sing  the 
luntidii  with  costs,  defendants'  counsel  sought  to 
tiike  iulvautage  of  the  fact  that  he  liad  fuily 
given  two  days'  notice  of  his  motion  instead  of  a 
month's  notice,  and  that  consequently  his  notice 
M.is  insufficient,  and  plaintiff  was  not  bound  to 
.ilipciir. 

Ill  Id,  tiiat  plaintiff  was  not  bound  to  take  tlie 
lisk  (if  not  apjiearing  and,  although  not  called 
iijion,  was  entitled  to  costs. 
Bank  oJ'Nom  Scotia  v.  Bnrxs,  7  R,  &  G.,  ISl  ; 

7  C.  L.  T.,  247. 

163.  Notice  of  motion— Length  of  tlme- 

5th  R.  S.,  c.  104,  O.  LX.,  Rules  2  and  7,  and 
Order  LIL,  Rule  5 — The  notice  of  motion  for 
an  urcler  .setting  aside  a  replevin  order,  was 
strved  at  fi.HO,  p.m..,  Friday  for  the  following 
i'lR'sday.  An  ajipeal  from  the  order  made  on 
sutli  notice  was  allowed. 

ill' Donald  v.  McKciizip,  20  N.  S.  R., 

(8R.  &  O.),  282; 
8C.  L.  T.,  4.-10. 

164.  Notice  of  motion  to  set  aside  order- 
Irregular  in  omitting  to  state  grounds  — 
Security  for  costs -Order  for,  must  fix  time 
within  which  security  to  be  given— 5th  R.  S., 
c.  104,  0.  LXVIII.,  R.  3— An  order  for  security 
fur  c(wts,  and  staying  proceedings  in  the  mean- 
time, was  obtained  from  a  Judge  at  Chambers, 
A]Mil,  1st,  188fi,  but  without  fixing  any  time 
witliiii  which  the  security  was  to  be  given.  On 
ilie  8tli  Jidy  following,  an  ex  parte  order  was 


I  granted    dismissing    the    action    for    want    of 
I  prosecution. 

Ihid,  that,  no  time  having  been  limited  for 

putting  in  the  .security,  the  order  dismissing  the 

'  suit  was  irregular,  and  should   not  have  been 

made,  but  that  pLiintiff  could  not  succeed  in  lii.s 

i  motion  to  set  aside  the  order  for  irregularity, 

:  because  he  had  not  complied  with  Order  Ixviii., 

Kule  .■},  by  stating  in  liis  notice  of  motion  the 

objections  intended  to  be  insisted  on. 

No  costs  were  allowed,  as  the  ground  was  not 
taken  below. 

McKee.n  v.  Poa-elt,  2(»  N.  S.  R., 

(SR.  &0.),  104. 

165.  Notice  of  non.pros  may  be  given  at 

I  the  close  of  the  second  sittings  after  the  cause 
I  is  at  issue,  although  the  cause   has   not  been 
'  called  and  passed. 
OeiKrnl  Mining  Aswriation  v.  Victoria  Coal 

Mininij  Co.,  3  R.  &  C,  479. 

166.  Notice  of  trial  not  indorsed  on  writ 

— Defendant  sought  to  set  aside  a  default  on  the 
ground  that  there  was  no  notice  of  trial  indorsed 
on  the  tlie  w-rit  of  summons  although  there  was 
a  notice  to  appear. 

Held,  reversing  the  judgment  of  the  County 
Court  Judge,  that  the  default  was  regular. 

Riuen  V.  Hermes,  5  R.  tS:  (>.,  552. 


i  167.    Notice  of  trial— The  time  for  serving 

I  notice  of  trial  not  being  fixed  by  the  new  I'rac- 
I  tice  Act  is  to  be  regulated  by  the  Practice  of  the 
I  .Superior  Courts  of  Common  Law  in  England. 

Where  short  notice  of  trial  was  given  and  ver- 
dict taken  for  plaintiff  subject  to  the  objection, 
the  verdict  was  set  aside. 

DrumiHond  v.  Carritt,  April  .JOlh,  lSo4, 

James,  2(58. 


168.    Notice  of  trial 


See  TRIAIi. 


160.    Nullity-  After  notice  of  non-pros  a 

peremptory  undertaking  was  given  for  the  next 
term  at  Pictou  ;  but  plaintiff  failed  to  try  his 
cause.  Defendant's  counsel  moved  for  judgment 
of  non  pros  and  the  Judge  took  the  papers  and 
reserved  his  decision.  After  the  Court  had 
closed  at  Pictou,  the  Judge  was  applied  to  for 
his  decision  at  another  Court  and  initialled  the 
rule  for  judgment,  upon  which  the  judgment 
was  signed  by  the  Prothonotary  at  Pictou. 
Plaintiff,  treating  the  judgment  as  a  nullity, 
proceeded  to  the  trial,  in  which  defendant  took 
no  part. 

//lid,  that  the  plaintiff  could  not  under  the 


1073 


PRACTICE. 


1070 


circumstances  proceed  to  trial,  and  the  verdict 
must  be  set  anide. 

Fra-.er  v.  Frnnfr  ff  a/.,  3  R.  &  (i.,  1'2S. 

170.    yulllt}  —  DeAiuU  marked  too  soon 

not  a  nullity — Wliere  the  plaiiititt'  nmrked  a 
defiiidt  on  tlie  twelfth  day  after  the  service  of  a 
writ,  witii  the  particulars  indorsed  tliereoii,  and 
entered  up  judgment  on  the  fourteenth  day 
thereafter, 

Ili/d,  that  the  default  was  not  a  nullity,  and 
even  if  it  were,  the  plaintiff  was  not  entitled  to 
sign  judgment  on  the  ftnu'teenth  day. 

Maiitirt  v.  Phinmy,  '2Thom.,  429. 

111.  Order  for  appeal  -  Couniy  Court 

Judge  restricting  gfi'ouuda  of  appeal — An  order 
for  appeal  was  signed  liy  the  Judge,  setting  out 
a  numher  of  grounds,  Init  the  Judge  in  his  certi- 
ficate left  it  to  the  Appeal  Court  to  say  wliether 
an  appeal  could  he  allowed  in  an  action  of  tort 
when  the  judgment  was  under  $40. 

Hi  Id,  that  the  appellant  could  not  he  confined 
to  this  single  ground  of  appeal,  the  Judge  having 
a  discretion  under  the  Act  of  1878,  c.  9,  s.  14, 
to  allow  an  appeal  on  any  point  of  law  or  prac- 
tice in  any  matter  tried  or  argued  before  him, 
and  liaving  granted  an  order  .setting  out  the 
grounds  on  which  appellant  wished  to  rely. 

McDonald  v.  SfiMri/,  3  R.  &  C,  -f20. 

112.  Order  for  the  delivery  of  interroga- 

tories,  and  for  discovery  on  oath  before 
defence  filed  sustained— Discretion  of  Judge— 
An  order  was  made  by  a  Judge  at  Ciiambers 
giving  defendant  leave  to  deliver  interrogatories 
to  a  number  of  officials  of  the  jilaintifT  Hank,  and 
requiring  such  officials  to  nutke  discovery  on 
oath  of  certain  documents,  correspondence,  etc. 
At  the  time  the  order  was  granted  no  defence  to 
the  action  had  been  delivered. 

fff/d,  that  under  Order  xxxi.  Rule  1,  tiie  Judge 
had  a  discretionary  power  to  nuike  such  order 
before  the  delivery  of  the  defence. 

A /so,  that  the  objection  to  the  order,  on  the 
ground  that  it  ordered  discovery  and  inspection 
as  well  as  the  delivery  of  interrogatories,  could 
not  be  sustained. 

The  Commercial  Hank  of  Windsor  \.  Beckwith, 

7  R.  &G.,527; 
8C.  L.  T.,  60. 

173.    Particulars  in  trespass— Order  for 

particulars  of  trespasses — Action  dismissed  for 
non-compliance  or  evasive  compliance  with  an 
order  requiring  plaiutifT  to  furnish  particulars  of 
alleged  trespasses. 

Fairbanks  v.  Hartshorne,  6  R.  &  G.,  493  ; 

f)C.  L.  T.,  540. 


174.    Parties-Caleb  Putman  conveyed  a 

lot  of  land  to  the  persons  named  in  the  deeil  ii,\- 
the  purpose  of  building  a  Presbyterian  chuirli, 
and  for  a  burial  ground,  to  hold  to  the  >aii| 
grantees  for  the  aforesaid  purpose  only. 

Hehl,  that  even  siiould  the  grantees  iniani- 
mously  concur  in  ciianging  the  u.se  of  the  propci  ty 
from  that  of  a  I'resbj'terian  church,  etc.,  siu.ii 
cliange  coulil  not  be  effected,  but  the  pro|R'i  ty, 
on  being  applied  to  other  uses  than  tho.^e  fur 
which  it  had  been  conveyed,  would  rtviit. 
Objections  having  i)een  taken  that  the  pro(  tul- 
ings  should  have  been  by  information  in  liit 
name  of  the  Attorney-General, 

Hi'lil,  tliat  tiie  plaintiffs  had  riglitly  piu- 
ceeded  by  the  writ  substituted  in  this  Court  liy 
.Statute  for  the  bill  in  Cliancery,  and,  iliai 
although  the  writ  stated  tliat  jilaintiffs  wcic 
acting  on  behalf  of  all  the  Presl>yterian  ineiiilitis 
of  the  congregation,  even  that  was  not  necessary, 

j  as  they  might,  under  4th  R.S.,  c.  95,  s.  19,  liavt 

!  maintained  the  suit  on  their  behalf  alone. 

The  statement  was  made  in  botii  writs  tliai 
by  certain  legislation  the  title  to  the  lands  in 
(juestion  was  vested  in  the  l'rcsl)yterian  Chuiih 

!  of  Canada,  but  the  legislation  referred  to  (IM 
not  aflect  the  title  to  the  property   in   <iuesti(iii 

I  in  these  suits.    Defendants  not  having  deiiuineil 

I  to  the  writ, 

Hild,  that  they  could  not  reasonably  ask  tn 

'■  have  plaintiff  turned  out  of  Court  becaii.se  tiii' 
Presbyterian  Church  was  not  a  party  to  the 
suits  when  the  Court  was  satisfied  tliat  it  coulil 
not  be  made  a  party,  and  that  tlie  proper  par- 
ties were  before  the  Court. 

JJmKjlas  et  al.  v.  //aires  ct  uL,  R.  K.  1).,  147. 


175.    Parties  -Cliose  in  action  —  Rlgiit  to 

I  sue  in  name  of  assignor  of— 4th  Rev.  Stats.. 

1  c.  94,  s.  356— W.  C.  A.    made  a  bill  of  sale  of 

\  goods  to  S.  &  M.,  and  shortly  after  made  a  con- 

,  veyance  of  the  same   property  to  plaintiffs  in 

I  trust  to  pay  off  the  debt  secured  to  S.  &  M.  1  v 

!  their  bill  of  sale,  and  to  pay  off'  also  all  other 

'  creditors  signing  the  deed,  among  whom  wen- 

S.  &  M.     Plaintiffs  had  before  suit  assigned  the 

debt  for  which   they   were   now   suing  to  tlit 

original  assignor,  W.  C.  A.     The  J  udge  before 

whom  the  cause  was  tried  gave  a  verdict  Im 

defendant. 

/Inld,  that  the  rule  nisi  for  a  new  trial  slmuM 
be  discharged. 

Ptr  McDonald,  C.  J.,  and  McDonald,  J.,  that 
I  the  prior  assignment  of  S.  &  M.  was  no  defeiia, 
j  as  S.  &  M.  had  joined  in  the  deed  to  pluintitii. 
I  but  that  plaintiff's  could  not  maintain  an  action 
in  their  own  name  under  4th  Rev.  Stats.,  cli.  fl4, 
;  s.  ,356,  having  assigned  the  cause  of  action  tu 


1077 


PRACTICE. 


1078 


W.  C.  A.,  nltlinugli  it  appeared  that  the  suit  was 
hnmglit  for  the  lienetit  of  \V.  C.  A. 

Pit  Tlioinpaoii,  J.,  that  the  property  and 
iiiniiey  sued  for  were  not  tlie  property  or  iiioncy 
of  phiintifTs,  hut  of  S.  &  M.,  who  were  not 
estopped  hy  joining  (as  creditors)  in  tiie  con- 
veyance to  phiintitl'it. 

Per  Rij;l)y,  .1.,  that  tiie  defen(hint  had  sus- 
tained his  statutory  j)lea  tluil  liefore  action 
the  ilel)t  had  been  assigned  to  \V.  C  A.,  l)ut 
tiiat  it  would  iuive  heen  competent  to  phiintilTs 
to  reply  that  they  were  suing  for  the  henetil  and 
with  tlic  consent  of  \\ .  ('.  A. 

Thomjiton  ct  al.  v.  Ackhiirii,  (i  R.  «fe  (!.,  1  ; 

6C.  L.  T.,  13(5. 

no.    Parties  —  Co-tenants -The  omission 

to  insert  the  names  of  co-tenants  is  a  fatal  oli- 
jei'tion  when  taken  at  the  trial,  and  need  not  l)e 
pk'ftded  in  abatement. 

Doaiif  V.  McKi  nil)/,  .lames,  :i2H. 

1J7.    Parties  -Ejectment  against  ofHcers 

of  the  Crown— 15y  Revised  Statutes,  chapter 
.^(i,  section  l.'i,  "  The  Hnancial  and  general  man- 
agement "  of  the  Nova  .Scotia  Hospital  for  the 
Insane  is  "vested  in  the  Commissioner  of  Public 
Works  and  Mines,"  and,  by  section  47  of  the 
same  chapter,  the  title  to  the  property,  and  the 
lauds  belonging  or  attached  to  the  same,  "  is 
coMtirnied  and  vested  in  the  Comniissiouer  of 
Piililic  \Vorks  and  Mines,  for  the  time  being, 
and  his  successors  in  othce,  in  fee  simple  for  the 
pm'i)oses  and  uses  of  such  hos])it.'.l."  An  action 
of  ejectment  having  been  brought  To  lecover 
possession  of  the  premises,  a  motion  was  made 
to  set  aside  the  writ  and  proceedings,  or  for  a 
perpetual  stay  of  proceedings,  on  the  grounds  : 
l.st.  Hecause  such  action  will  not  lie  against 
the  otficcrs  of  the  I'rown  or  (Jovernment,  and 
cannot  he  maintained  against  them  in  respect  of 
such  jiroperty  as  that  sued  for.  2nd.  Hecause 
suo)\  action  and  proceedings  cannot  be  taken 
against  the  Crown  and  its  otiicers.  3rd.  Re- 
cimse  the  defendants  hohl  the  property  sued  for 
herein  as  the  otticers  of  the  Crown  and  (Jovern- 
ment, and  not  otherwise. 

The  motion  was  refused. 

Semhli;,  that  where  the  Act  vests  the  property 
in  the  otHcers  of  the  Crown,  ejectment  to  test 
■tlifi  title  will  lie. 

Kfarneij  v.  Cree/maii  ef  al.,  4  R.  &  (J.,  228. 

178.    Parties  —  Insolvency    -  Attacking 

fraudulent  instruments  —  Defendants,  being 
adilt'tl  parties,  resi.  ted  a  proceeding  taken  by 
plaintiff,  as  assignee  of  a  mortgage,  to  foreclose 
the  same  <m  the  ground  that  the  mortgage  was 


nuide  in  contemplation  of  insolvency,  and  was 
voiil  under  the  In.solvent  Act,  the  mortgagee 
having  afterwards  lieconie  insolvent  and  assigned 
under  the  Act. 

IIkIiI,    that  defendants,  seeking  as  creditors 

I  of  the  insolvent  to  impeach  the  mortgage,  solely 
on  the  ground  that  it  was  in  contravention  of 
the  Insolvent  Act,  should  have  called  on  the 
assignee  to  take  proceedings  to  set  it  aside,  and 

'upon  his  refusal,  should  have  applied  to  liie 
.Judge  for  leave  to  proceed  in  his  name;  and 
further,  that  defendants  should  have  proved  their 
claims  in  order  to  entitle  them  so  to  proceed. 

j      Qimtn,  whether  the  defendant.'i  could  contest 

i  the   validity   of    the    mortgage  at  all,  without 

i  bringing  a  cross-action. 

(I rant  v.   Whivhr  el  al.,  R.  E.  1).,  .'{HS. 

i 

119.    Parties— Insolvency— Kiglit  of  cred. 

i  itora  to  attack  fraudulent  instruments  — 
McDonahl  and  Raker  having  a  lien  on  propeitj- 
of  the  insolvent  defendant,  under  a  recorded 
judgment,  a  suit  was  brought  l)y  them  as  co- 
plaintitls  with  the  assignee  to  set  aside  a  jiulg- 
mcnt  next  j)revious  to  theirs,  alleged  to  have 
been  fraudulently  obtained. 

//(/(/,  on  dcmuiic)',  that  .said  McDonald  and 
Raker  had  been  properly  nuide  parties  to  the 
suit,  and  that  although  under  the  Insolvent 
Act  (187.">)  the  assignee  had  the  exclusive  rigiit 
to  sue  for  the  rescinding  of  instruments  made  in 
fraud  of  creditors  generally,  and  should  then  l)e 
the  only  phiintitf  in  the  suit,  it  was  otherwise 
where  the  instrument  was  nuule  in  fraud  of 
certain  individuals  irrespective  of  the  other 
creditors. 
Pafti-rsoii,  .■l.v.s/(/;((( ,  (/  al.  v.  Archibald  ff  al., 

R.  K.  1).,  .31. S. 

180.    Parties  —  Joinder  -  Payment  made 

jointly  but  from  individual  funds— An  action 
was  brought  to  recover  -^ICK),  placed  by  plaintiff 
in  the  hands  of  the  ilefem'lant  for  the  purpose  of 
betting  on  a  boat  race.  The  bet  was  made  in 
the  plaintitTs  name,  but  the  money  was  contrib- 
uted by  several  parties  in  small  su'ns,  and,  al- 
though no  arrangement  was  nuvde,  plaintiff 
stated  in  his  evidence  that  several  parties  were 
interested  to  their  respective  amounts,  and  if  he 
had  won  they  wouhl  have  expected  their  money, 
and  he  would  have  been  oldiged  to  pay  them. 
Plaintiff  countermanded  the  bet  before  the  de- 
fendant parted  with  the  money,  and  there  was 
nil  clear  evidence  to  show  that  defendant,  as 
betting  agent  for  plaintiff,  had  become  bound 
before  the  bet  was  so  countermanded. 

Held,  that  the  contributors  could  not  sue 
jointly,  but  tiiat  plaintiff  was  entitled  to  recover 
back,  not  the  whole  amount,  but  only  his  own 


1079 


PRACTICE. 


1080 


slmre  of  the  money  (U'posrteil,  for  wliich  jtiilg- 
iiient  must  lie  enturcil  in  the  I'oiirt  l)eh)w. 

tioxn  V.  J/arrinijtoii,  'A  K.  &  G.,  325; 
3C.  L.  T.,44. 

181.  Parties  -Joinder  of  Surplusage- 

Tlie  tnistees  of  j)iililic  property  for  tlie  (^omity 
of  C'umlierhmil  hrriuglit  an  notion  of  ejectment, 
and  at  tlie  trial  ohtiiineil  an  oriler  to  amend  tlie 
<leelaration,  and  added  as  plaintiffs  tlie  trustees 
of  Amherst  Court  House  grounds.  The  verdict 
was  for  j)laintiffs,  but  after  argument  in  ba.7ico 
it  appeared  that  only  the  trustees  of  public 
property,  etc.,  were  entitled. 

//f/fl,  that  the  joinder  of  the  trustees  of  Am- 
hirst  (^ourt  House  grounds  was  mere  sm'plusage. 

Truntf  (.K  of  I'lihlic  J'ro/iirfy,  ttv. ,   v.  Kirr, 

3R.  &  C.,317; 
1  C.  L.  T.,  708. 

182.  Parties  —  Mailing  party  defendant 

instead  of  co-plaintiff  —  .Matthew  Chisholm 
mortgaged  land  to  ArchibaM  and  James  C'liis- 
liolm,  the  former  of  whom  assigned  his  interest 
to  plaintiff,  who  brought  suit  to  foreclose  the 
mortgage  against  Mattliew  Chisholm  alone. 
Su')se(juent!y  the  writ  was  amended  by  making 
Archibald  and  James  Chisholm  and  John  T. 
Siiiiih  defendants,  the  latter  having  taken  an 
assignment  of  the  mortgage  from  Archibald  and 
James  Chisholm  subsequent  to  the  assignment 
by  Archibald  Chisholm  to  plaintiff. 

Ilfild,  that  Arciiibald  Chisholm,  having  a 
separate  interest,  had  a  riglit  to  assign  it  to 
l)laintiff;  that  altliough  plaintiff  could  not  sus- 
tain his  suit  as  originally  brought  against  the 
mortgagor  alone,  the  writ,  as  amended,  brought 
all  the  parties  interested  befoie  the  Court,  and 
that  although  the  ordinary  course  would  have 
been  to  make  Smith  a  co-))laintiff,  yet  as  he 
denied  plaintiff's  rights  under  tlie  assignment, 
he  iiad  been  properly  made  a  defendant. 

Sihky  V.  Chisholm  it  al,  R.  K.  D.,  167. 

183.  Parties  —  Non-Joinder  of  tenant  in 

common  as  plaintiff  in  action  for  use  and 
occupation — Mesne  profits— J.  H.  and  C.  H. 
wero  tenants  in  common  of  an  undivided  parcel 
of  real  estate.  Plaintiff  bought  C.  H.'s  interest 
un<ler  a  judgment  duly  recorded  against  him. 
r.  H.,  and  his  widow,  after  liis  death,  remained 
in  ])ossession  of  the  land,  and  some  time  after- 
wards plaintiff  brought  an  action  for  use  and 
occupation,  adding  a  count  for  mesne  profits. 
Xo  contract,  express  or  implied,  between  plain- 
tiff and  the  widow  of  C.  H.  was  proved. 

Hddy  that  no  action  would  lie  for  use  and 
occupation,  the  widow  occupying  adversely  ; 
that  no  action  would  lie  for  mesne  profits,  as 


!  there  had  been  no  previous  recovery  in  ejectment 

by  plaintiff;  and  that  even  if  a  contract  iuid 

j  been  proved  to  sustain  use  and  occupation,  the 

'  non-joinder  of  J.  H.  as  u  plaintiff  was  fatal  to 

the  action  as  brought. 

UCain  v.  Uottfrman,  2  R.  &  C,  'JSO. 
On  apptal  to  the  Sujyremc  Court  of  Cnnudn, 
Hi  Id,    1.      An  action  of  trespass   for  iiitMie 
protits    is    consequential    to    the    recovery    in 
ejectment. 

j  2.  Even  if  such  an  action  would  lie  iimler 
some  circumstances  without  ejectment  brougiu, 
the  plaintiff  could  not  recover  without  satisfac- 
triry  eviilence  of  actual  entry  and  possession. 

•S.     After  entry  there  is  a  relation  back  to  the 
actual    title  as   against   a    wrongdoer,   and   an 
action  may  be  maintained  for  trespass  prior  to 
j  such  entry. 

Rut  in  this  case,  besides  a  deficiency  of  evi- 

clence  of  entry,  there  was  some  evidence  tliat  tiio 

j  defendant  remained  in  posses.sion  subseciuent  to 

'  the   12th  August,  1873,   the  day  the  iilaintiti'? 

title  accrued,  with  tiio  assent  of  tiie  jilaiutitL 

.Strong,  J.,  duhitaiili'. 

4.  In  any  event  the  action  for  mesne  protits 
would  not  lie,  the  defeiulant  having  been, 
previous  to  the  12th  August,  187.S,  in  poasessidii 
with  the  consent  of  J.  H.,  the  co-tenant  iii 
common,  and  being,  therefore,  entitled  to  a 
notice  to  quit,  or  demand  of  possession,  before 
her  possession  could  be  considered  tortious. 
Li-.Cain  v.  HoMcrman,  JSth  January,  IS7S, 

Cas.  Digest,  :m, 

184.  Parties- Plaintiffs  shipped  goods  on 

defendants'  vessel  to  be  delivered  at  Halifax  to 
the  consignees,  "he  or  they  paying  freiglit." 
After  the  shipment,  and  before  action  lirotigiit, 
the  consignees  paid  plaintiffs  for  the  goods. 

//eld,  that  the  consignees  were  the  proper 
persons  to  bring  the  action  for  damages,  oeoii- 
sioned  by  non-delivery  of  the  goods,  aoconling 

I  to  the  terms  of  the  bill  of  lading. 

i      Adnnii  tt  al.  v.  Crosby  el  al.,  2  R.  &  (!.,  .'t.'il  ; 

!  2C.  L.  T.,!I4. 

185.  Parties -Service  on  one  defendant 

but  not  on  others — Where  a  writ  was  servuil 
upon  one  of  tiiree  <lefendants,  but  not  upon  tlie 
,  other  two,  and  upon  the  day  of  trial  tiie  at  tor- 
I  ney  of  the  two  defendants  not  served  indorsed 
!  upon  it  an  acceptance  of  service,  dated  back 
'.  more  than  fourteen  day.-  and  marked  nunc  pro 
I  tunc,  filing  no  appearance  or  plea. 
I  //eld,  that  thei'o  was  no  irregularity  in  tiie 
i  trial  against  the  defendant  who  was  scrvcil,  of 
!  which  he  could  take  advantage, 
i  Alla7i  v.  Peterx  tt  al.,  1  R.  &  C,  .Ifio. 


lOMl 


PRACTICE. 


\0S'2 


isu.    Parties— Trustees  of  school  can  only 

be  Hued  in  corporate  capacity  for  liabilities  at) 
such  -Plivintitf  brouglit  action  ajijaiiist  defeii- 
iliiiitM  for  a  inaiuluniUN  to  compel  thciii  to  provide 
for  a  debt  due  liy  the  trustees  of  a  school  section. 
Tlif  writ  was  against  the  dcfemlants  personally, 
l)iit  contained  a  statement  that  tliey  were  trus- 
tci'H,  &c.,  and  that  defendant  1).  was  secretary. 
Evidence  was  taken  as  to  the  existence  of  the 
del)t,  and  tiie  case  came  on  for  hearing  under 
the  pleadings  and  evidence. 

JMl,  that  the  trustees  could  only  be  sued  in 
their  corporate  name  ;  and  that  tiic  amendment 
to  that  eflFeci,  asked  for  by  plaintitf  at  the  hear- 
ing, could  not  be  permitted.  I 
Cook-  V.  Daridsoti  et  al.,  R.  E.  D.,  37. 1 

187.  Parties— Waiver  of  objection  —  The ; 

original   plaintitl'   died    after   writ    issueil   and 
lit' fore  answer,  and  tiie  suit  was  revived  by  her 
executor.     Defendants,  in  their  answer,  did  not  ! 
call  in  question  tiie  death  of  tiie  original  plain- 1 
titr,  or  the  appointment  of  the  present  plaintiff ' 
as  her  executor,  and  raised  no  objection  to  ids  ' 
not  lieiiig  t)ie  proper  person  to  revive  tiie  suit. 
But  after  the  issues  raised  by  tiieir  answer  were 
found  against  them,  the  oljjection  was  taken  at 
tiio  iiearing  that  other  parties  should  have  been 
))efore  the  Court  as  plaintifTs. 

Held,  that  tiie  objection  should  have  been 
raised  by  demurrer  or  plea,  or  defendants  should 
iiave  insisted  (m  it  in  their  answer,  and  that, 
although  such  an  objection  might  be  taken  at 
the  hearing,  if  it  were  made  to  appear  that  the 
rights  of  other  parties  not  before  the  Court 
would  be  prejudiced  by  the  decree  sought  for, 
yet,  if  the  Court  could  make  a  decree  which 
would  do  justice  to  all  parties,  it  would  not 
.allow  the  objection  then  to  prevail. 

Chipman,  Executor,  v.  Garazaet  al. 

R.  E.  D.,  28. 

188.  Party  entitled  to  sue— Amendment 

by  adding  plaintiff — L.  \V.  brought  an  action 
to  recover  damages  for  the  breacii  of  a  contract, 
miule  bj  defendant,  for  the  supply  of  a  quantity 
of  canned  lobsters. 

It  appeared  that  in  making  the  contract  plain- 
tiff was  merely  acting  as  agent  for  M.  L.  W., 
and  that  he  had  no  pei'sonal  interest  iu  the 
transaction  beyond  the  fact  that  his  remunera- 
tion was  dependent  upon  the  amount  of  profit. 

Ill  Id,  that  the  understanding  between  plaintiff 
ami  M.  L.  W.  as  to  the  mode  in  which  plaintiff 
was  to  be  remunerated  for  his  services,  could  ; 
not  enable  the  latter  to  recover  in  his  own  name 
for  a  breach  of  the  contract. 

Leave  having  been  granted,  on  an  application 


made  for  that  purpose,  to  amend,  by  adding  tlie 
name  of  M.  L.  W.  as  plaintitl', 

Jlt'ld,  that  under  the  wording  of  Order  .W., 
Rule  10,  such  an  amendment  could  not  )>e  made 
in  tiie  absence  of  a  written  consent  by  the  party 
to  be  joined. 

mirzburg  v.  Wthb,  7  R.  &  C,  414. 

189.    Party  to  action -Death  of-ElTect- 

An  action  was  brougiil  on  a  promissory  note 
against  the  two  makers,  one  of  « lioin  was  dead 
at  the  time  of  the  trial.  A  verdict  was  found 
in  favor  of  the  deceased  defendant,  but  against 
the  other  maker  of  the  note,  and  a  rule  to  set  it 
aside  was  taken  out  on  the  part  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  was 
discharged  with  costs. 

Oarnza  et  al.  v.  Xeily  et  al.,  2  R.  it  G.,  180, 


190.  Point  of  practice— Appeal— A  cause 

being  tried  before  the  Judge  without  jury,  a 
finding  for  defendant  was  filed  December  oth, 
and  a  rule  being  refused  was  taken  out  under 
tiie  Statute  December  11th,  whicii  rule  was,  <m 
January  ".  ii,  discharged,  the  bail-bond  being 
defective  Plaintiff  gave  notice  of  appeal  Janu- 
ary 12th,  and  on  the  same  day  obtained  a  rule 
nisi  for  a  double  appeal  from  the  decision  refusing 
to  grant  a  rule  7(iVi',  and  the  decision  pronouncing 
tiie  bail  insufficient.  (January  4th.)  The  Court 
discharged  the  rule  on  tlie  ground, — as  to  the 
first  appeal,  tliat  tiie  notice  was  too  late  under 
the  Dom.  Act  of  1875,  c.  11,  s.  21, — and,  as  to 
the  second,  that  it  was  an  appeal  on  a  point  of 
practice,  involving,  it  was  true,  a  final  judgnient, 
but  a  judgment  given  December  5th,  and  left  to 
its  operation  by  plaintiff's  default. 

Forsyth  V.  Symomlx,  3  R.  &  C,  97. 

191.  Power  of  Court  to   interpose  to 

protect  interests  of  third  parties  interested  in 
fund  —  The  statement  of  claim  prayed  tiiat 
certain  money  should  be  paid  to  the  Pictou 
Bank,  but  the  judgnient  as  entered  authorized 
the  plaintiffs  to  enforce  payment  to  themselves, 
it  appearing  that  an  amendment  t&  that  effect 
had  been  permitted  by  the  learned  Judge  before 
whom  the  case  was  tried. 

Held,  that  the  amendment  so  allowed  cured 
the  objection,  but,  if  it  appeared  that  the  inter- 
est of  the  bank,  or  of  other  parties  interested  in 
the  disposition  of  the  fund,  required  the  inter- 
position of  the  Court,  the  CJourt  had  the 
power  to  make  such  order  in  reference  thereto, 
as  the  rights  of  parties  or  the  justice  of  the  case 


]083 


PRACTICE. 


10N4- 


ri'iiuirotl,  without  nrci'HHitating  a  new  trial,  if 
not  rt'ijiiiri'il  liy  tlic  fiictH  of  tlie  ciimc. 

Kilfhiii  it  III.  V.  McDiiiialil  it  al., 

2(>  N.  S.  R.,  (H  R.  it  (i.),  1H9; 
HC.  L.  T.,  ;JS(». 

102.  Power  or  Judge  to  enter  verdlet 

inconsistent  with  findings  of  jury — ThuiJudi- 
ciiturt'  Act,  sec.  '21,  Hul)-Nec.  S,  cnHcts  that,  iijHin 
a  trial  by  jury  in  ccrlaiii  ciiscn,  the  Jutlgo  "in- 
stead of  dii'ectinji  the  jury  to  give  either  a 
general  or  Hjiecial  verdict,  may  direct  the  jury  ; 
to  answer  any  questions  of  fact  stated  to  them  j 

hy  the  Judge  for  such  puipose  ; 

and,  on  the  finding  of  the  jury  upon  the  ques- 
tions which  they  shall  answer,  the  Judge  shall  j 
enter  the  verdict,"  etc. 

I'laintifT,  aa  Sherilf  of  the  County  of  Lunen- 
burg, levied  upon  a  vessel  on  the  stocks  as  the 
property  of  one  McKeen,  an  absent  or  abscond- 
ing debtor.  Defendant,  after  the  levy,  took  the 
Viissel  off  the  stocks  and  disposed  of  her,  claim- 
ing under  a  bill  of  sale  from  McKecn  executed 
before  the  attachment.  Plaintiff  thereupon 
brought  trover. 

The  evidence  on  the  trial  showed  conclusively  I 
that   the   l)ill  was  executed  fraudulently,  and  j 
tlie  jury  having  found  all  tlie  questions  of  fact 
submitted  to  them  in  favor  of    the  defendant, 
tlie  Judge,  disregarding  their  findings,  entered 
a  verdict  for  plaintiff  with  costs. 

Held,  that  the  words  of  the  Act,  "on  the  find- 
ings of  the  jury,"  etc.,  mean  consistently  with 
such  findings. 

Defendant  gave  notice  of  motion  "on  appeal 
from  the  judgment "  of  the  Judge,  "  and  tliat 
judgment  be  entered  for  the  defendant,  on  the 
ground  that,  upon  the  findings,  the  judgment  is 
wrong."  I'luintiff  up  to  the  close  of  the  argu- 
ment did  not  move  to  set  aside  the  findings,  but 
obtained  leave  to  move  to  amend,  so  as  to  leave 
that  course  open  to  him,  and  lie  moved  accord- 
ingly. Defendant,  after  the  argument,  moved  to 
amend  his  notice  so  as  to  enable  him  to  move  to 
set  aside  the  verdict.  Both  amendments  were 
allowed,  there  being  no  surprise  to  either  party, 
and  neither  having  complained  of  any  such  thing 
or  given  any  valid  reason  why  such  amendments 
should  not  be  allowed.  The  Court  set  iiside 
both  verdict  and  findings  at  the  same  time  at 
which  they  gave  judgment  allowing  the  amend- 
ments, 

Crciijhton  v.  Spinmy,  7  R.  &  G.,  102; 

7  C.  L.  T.,  145. 

103.  Practice  in  proceedings  for  viola- 
tion of  City  Building  Act— Parties  proceeded 
against  under  the  provisions  of  section  655,  of 
the  City  laws  for  the  infringement  of  the  regula- 


tions relating  to  l)uililingH,  arc  entitled  to  un 
information  as  in  the  case  of  Tin:  City  of  Halifax 
V.  MrLiarn,  1  Old.,  tiMlt,  if  they  re(|uire  it,  when 
if  the  Court  declaresthe  structure  to  be  a  nuisance 
tlie  Council  may  order  its  removal,  and  it  is  nut 
necessary  to  resort  in  the  first  place  to  the  Police 
Court  under  section  054. 

The  jirocoedings  were  ordered  to  be  amended 
by  filing  an  information  as  against  Seeton  tlie 
owner,  omitting  Hrookfield  the  contractor.  Costs 
as  to  Rrookfield  reserved. 

In  re  City  of  IluUj'ax  and  Sitton,  t.t  uL, 
',\  R.  &  C,  3(1,-). 

101.    Proceedings  under  4th  K.  S.,  c.  103 

— Foreclosure — A  writ  of  summons  was  iss'u^l 
commanding  defendants  to  appear  in  the  Su- 
preme Court  at  Truro  at  the  suit  of  the  plain- 
tiffs, who  alleged  that  defendants  were  indebted 
for  principal  an<l  interest  on  a  mortgage,  reciting 
the  proviso  for  redemption.  The  writ  proceeded 
to  set  out  an  amount  due  on  a  promissory  note 
of  defendants  for  the  same  amount  as  tlie  mort- 
gage, given  as  collateral  security,  and  jiiayed 
that  in  default  of  payment  the  equity  of  redemp- 
tion should  be  foreclosed  and  a  sale  of  the  prem- 
ises made.  Defendants  treated  the  suit  as  one 
brought  in  this  Court  under  4tli  R.  S.,  c.  lO.S, 
and  not  as  an  equity  suit,  and  pleaded  various 
grounds  of  defence.  The  cause  was  twice  tried 
and  the  verdict  for  defendants  waj  in  each  case 
set  aside  by  the  Court  in  hanco.  Defendants 
then  took  a  rule  nini  to  rescind  the  rules  setting 
aside  the  verdict  on  the  ground  that  the  Court 
had  no  jurisdiction,  the  suit  being  an  equity 
case. 

Hi  Id,  that  although  the  writ  was  not  in  strict 
conformity  with  the  procedure  pointed  out  in 
cap.  10,S,  yet  the  Court  had  jurisdiction  to  dcid 
with  the  case,  not  as  one  brought  for  the  fore- 
closure of  an  equity  of  redemption,  but.  as  one 
in  v.liich  on  non-payment  of  the  mortgage  and 
note  an  order  of  sale  of  the  premises  was  sought, 
and  that  it  was  too  late  to  raise  the  question  uf 
want  of  juris(Mction  grounded  on  an  informality 
in  the  writ  which  had  been  waived  by  defen- 
dants pleading  to  and  defending  the  cause  as  an 
action  at  common  law. 

Lynd.'i  tt  al.  v.  Hoar  tl  al.,  2  R.  &  G.,  237  ; 

1  C.  L.  T.,  710. 

I 

I    103,    Receiver  —  Tlie  order  for  appoint' 

;  ment  of  a  Receiver  can  only  be  made  wlicre  a 
i  suit  has  been  instituted. 

Ez  parte  Peillon,  2  Thorn. ,  tO">. 

106,    Recognizance  discliarged  —  Recog* 

nizance  entered  into  before  two  Justices  for  over- 


1()S5 


PRACTICE. 


]08(J 


liililiiij;  the  pliiiiitiir'H  jircniiMi'H  ilixfliiirged,  the 

|i|.iiiititr  not  liaving  untiTcil    tliu   ainm:   on  the 

Miriiiniiry  liHt  for  trial  nor  coniinetu'ud  iin  action 

III"  (jtclMiunt, 

lUiiii  r  V.  (I'liini,  iJanieH,  3.S7. 

lilt.    Kccognlzaiu'c— Est  renting  -Deren- 

iliiiit,  having  liei'n  conviitcd  in  tliu  I'olicu  I'oin'l 

(it  all  atisanlt,  fntfit'd  into  a  ricognizance  witli 

twii  sureties  to  kuep  the  I'eace.     Afterwards  he 

was  fonvicted    of   a   weeond    aHsaidt,    and    the 

Atloriiey-(!enenil  liad  tiie  jiroceedings  brought 

n\)  liy  rirliorari.     Whereupon, 

The  Court,  liohling  that  tlie  mode  of  proceeding 

ill  Kiiylaiid  to  estreat  recognizances  was  wholly 

iiiapplicalile    to    this    Province,    sanctioned  the 

cmirHe   pursued    in    the    Qiieni    v.    Thompxon, 

•J  'I'hom.,  9. 

(Jiwtii  V.  Brown,  1  H.  &  tl.,  M. 


1»8.   Recognizance -Estreallns  — In  or- 

cUr  to  estreat  a  recognizance  taken  un<ler  cap. 

.'ill,  of    the    Dominion  Act  of    ISliO,  all  that  is 

ifquircd  is  a  certiticate  from  the  proper  officer 

luiider  sec.  4.")  of  the  Act)  that  it  is  forfeited. 

Upon  that  a  rule  nisi  is  taken  out  on  athdavits 

'if  the  facts,  and  if  no  cause  is  shown,  judgment 

fiilldws,  ))ut  without  costs. 

Practice  in  the  Queen  v.  Thompwn,  2  Thorn., 

!),  affirmed. 

Queen  v.  Hickman,  3  R.  &  C,  255. 

199.  Recognizance -Judgment  on-Judg- 

iiant  will  lie  entered  on  a  recognizance  against 
imth  principal  and  sureties,  where  the  jirincipal 
has  not  appeared  in  accordance  with  the  condi- 
lii'ii  of  such  recognizance,  and  where  a  rule  ni^i 
i"i-  siiL-li  judgment  has  been  served  on  the  sure- 
tics,  iiiul  the  principal  has  left  the  Province, 
ftiul  they  have  failed  to  show  cause, 
'iwni  v.  Thomjison,  2  Thom.,  !t,  atfirmed. 

Queen  v.  Cadilay,  1  Old.,  701. 

200.  Recognizance -Judgment  on-Prac- 

tiue  as  to  entering  up  judgment  on  a  recogni- 
zance—The (Terk  of  the  Crown  made  an  afiidavit 
'it  tlip  fact  of  a  recognizance  having  been  entered 
int'3  by  the  defendants,  of  the  signature  of  the 
•Justices  of  the  Peace  thereto,  and  its  return  into 
tilt'  Supreme  Court,  and  the  non-appearance  of 
till-  party  to  plead  to  the  indictment.  On  this 
atiiiluvit  a  rule  nid  to  enter  judgment  was  ob- 
tained, A  copy  of  the  rule  and  of  the  affidavit 
was  served  on  each  of  the  defendants.  By  cap. 
Ill",  l.st  Revised  .Statutes,  s.  17,  the  Justice  on 
laking  bail  is  required  to  give  notice  in  writing 
t')  the  party  accused,  of  the  time  and  place  of 
ti'ial.    .Such  notice  had  not  been  given. 


/'<;•  Haliburton,  C.  J.— As  there  appears  to 
be  no  settled  practice  relative  to  these  escheats 
here,  I  can  see  no  objection  to  the  proceedings 
taken  on  the  part  of  the  Crown,  Rule  made 
absoiute. 

QuiiH  v.  77i'/;/i/wo;(,  2  Thom.,  !). 

201.  Record,  fliing  of  .\  Judgment  had 

been  entered  up  on  verdict,  but  there  was  noth- 
ing to  show  that  a  record  had  been  filed  excepting 
the  fact  that  an  execution  had  been  issued. 
.More  than  thirty  years  afterwards  a  rule  iiiii 
was  obtained  for  leave  to  tile  a  recird  therein 
nniic  iiro  lunr,  in  order  that  it  might  be  [)i')- 
duccd  as  evidence  in  a  (lending  action  between 
the  sons  of  the  original  parties,  the  titl")  to  land 
being  in  (]Uestion,  the  rule  was  discharged  on 
the  ground  of  the  application  being  made  too 
late,  and  by  a  party  in  another  suit  with  the 
object  of  producing  the  reconl  as  evidence  on 
his  own  l.iehalf. 

Jii-i'l  V.  Smith,  1  N.  S.  |).,  2(1. 

202.  Record  -  Proof  of  -  Defendant  put 

I  in    as   evidence  of  tiie    juilgment   the  so-  called 
;"  record    by    default"   in   the    form    No.    11   of 
'  schedule  A,  cap.  !»4,  of  4lli  R.  .S.,  signed  by  the 
plaintiffs  attorney. 

Ill  Id,  that  this  was  legal  evid»'nce  of  a  judg- 
ment. 

McDonald  v.  Faywotou,  1  R.  &  (1.,  7<). 

203.  Record-Proof  of-FllIng  nunc  pro 

j  tunc -Plaintiff  jiroiiosed  to  give  in  evidence  a 
I  copy  of  a  record  alleged  to  have  been  filed 
j  March  13th,  1878,  to  meet  a  plea  of  nul  tiet 
I  record.  The  Prothonotary  of  the  Court,  called 
1  by  plaintiff,  stated  that  no  record  ')f  that  date 
'was  to  be  found,  and  on  cross-examination  .said 
the  first  record  lie  had  seen  .viis  tiled  August 
j  18th,  1870,  and  that  this  was  the  first  record 
I  that  had  been  sent  to  him  by  the  attorney  whose 
duty  it  was  to  prepare  it. 

//(/'/,  that  the  Judge  had  properly  rejected 
the  evidence,  and  that  he  was  justified  in  re- 
fusing t'j  allow  a  record  to  be  tiled  nunc  pro 

tunc. 

Hardy  v.  Smith,  1  R.  &  (i.,  3.')1. 

204.  Record  —  Where,  in  an  action  to 

revive  a  judgment,  defendant  pleaded  nul  tiel 
record,  and  plaintiff  filed  a  record  only  five  days 
before  the  trial,  and  after  plea. 

Held,  that  the  plaintiff  could  not  recover,  as 
the  matter  alleged  in  the  plea  was  true,  and  a 
complete  answer  to  the  action. 

The  record  roll,  filed  by  the  attorney  in  a 
cause  on  entering  judgment,  is  the  only  evidence 
of  a  recovery. 


10>^7 


PRACTICE. 


loss 


Wlicro  pluintiir  hiix  iliod  iifter  recuveriiig 
jiiilgiiieiit  witliout  tiling  iv  ruconl,  it  oiiimot  lio 
tilfd  liy  Itin  ruptfuontativc  without  leave  of  tiiu 
("oiiit  or  u  Juilgv. 

Chenky  V.  lioimctt,  I  K.  &  C,  112. 

20.).    KoFeree,  report  of- Objections  to, 

how   to   be   taken — Wiicru   in  u  (|iu'stiiin  of 
auciiiints  and  diBlmrHcnivntH  a  tliorougldy  com- 
petent perHon  has  been  Hclucted  as  rufci'uu,  with  ■ 
the   approval  of  1>oth    partieH,  and  lie  reportn 
thereon  after  a  full  examination,  thmie  who  would 
take  objectioUH  to  8uuh  a  report  are  bound  to  I 
jirove  their  objections  by  clear  and  mitisfactory  j 
evidence,  for  it  will  not  be  overruled  uuIchh  there 
be  an  overpowering  case  made  against  it,  which 
shall  satisfy  the  mind  of  tlie  Court  that  it  ought  I 
not  to  be  maintained. 

Thi;  Jaini.1  Fmxn;  Y.  A.  I).,  160.  ; 

206.  Reference  hy  Judge  at  Chambers 

to  Court  in  ham:  —  A  conviction  under  the 
Canada  Temperance  Act  was  removed  to  the 
County  Court  by  certiorari.  The  prosecutor 
applieil  to  a  .Judge  of  the  .Supreme  Court  at 
Chambers  for  a  writ  of  prohibition,  to  prohibit 
the  County  Court  from  further  proceeding  on 
the  cirtiorari,  and  the  order  nini  for  the  writ  of 
piohibition  was,  by  a  Judge  presiding  at  Cliam- 
))ers,  referred  to  the  Court  in  banc.  Defendant's 
counsel  objected  that  the  Judge  at  Chambers 
could  not  so  refer  the  applicati(m. 

Hi  Id,  that  the  writ  of  prohibition  must  be 
allowed,  but  without  costs. 

Queen  v.  O'Stil,  20  N.  S.  H.,  (8  R.  &  (J.),  530. 

207.  Reference,  order  for— Defendant 

pleaded  and  paid  money  into  Court.  Plaintiffs' 
attorney  took  the  money  out,  but  did  not  reply 
until  after  thirty  days,  when  he  applied  for  an 
order  to  reply  and  for  a  reference.  It  having 
appeared  that  after  the  money  was  paid  in, 
negotiations  for  a  reference  had  taken  place,  and 
the  plaintiffs'  attorney  having  sworn  that  he 
acted  on  the  belief  that  the  reference  was  agreed 
to,  and  the  mode  of  settlement  by  reference  being 
an  appropriate  one,  the  order  was  nuide  absolute. 
Wyldt  et  al.  v.  Trtmaim,  1  N.  S.  D.,  49.3. 

208.  Benisal  of  presiding  .'fudge  to  sub< 

mit  questions  to  jury  where  questions  already 
put  by  him  cover  all  issues  raised— In  an  action 
for  trespass  to  land  by  cutting  and  removing 
timber,  the  amount  of  damages  having  been 
agreed  upon  the  Judge  presiding  being  of  the 
opinion  that  there  was  no  other  question 
of  fact  to  be  submitted  to  th3  jury,  directed 
judgment  to  be  entered  in  the  piaintifiF's  favor 
for  the  amount  of  damages  agrted  upon,  and  re- 


fused to  submit  to  the  jury  certain  (picHticiii.'*  uf 
fact  which  he  was  rf(|UeHteil  by  the  coiniHel  fur 
the  defendant  lo  submit. 

//(/(/,  there  being  uncontradicted  ovideliuf  (if 
posHemtion  in  the  phiintilf's  favor,  that  the  courw 
pursued  by  the  .Fudge  was  justitied  under  tlii' 
terms  of  ■')th  K.  S.,  c.  104,  s.  "JO,  ss.  7. 

Where  ((uestions  of  facts  are  submitted  to  tlii' 
jury  by  the  presiding  Judge  which  amply  uovci 
all  the  issues  raised  by  the  pleadings,  and  leave 
nothing  necessary  to  be  determined  afterwiuil. 
to  settle  the  issues  of  fact  involved  in  the  pltiid 
ings,  he  may  decline  to  put  any  further  i|Uestii>iii. 
IkxIiarrM  et  al.  v.   litlhtai,  'JO  N.  ,S.  M., 

(8  R.  &  G.)  4W. 

209.    Relator -Indorsing  name  of -The 

declaration  set  out  a  bond  to  Her  Majesty  cnh- 
ditioned  for  the  due  perfornuvnco  by  defeiniiim 
of  his  duties  as  guardian  of  the  estate  of  a  luiiii' 
tic.  Defendant  pleaded  an  equitable  plea,  ami 
asked  for  the  equitable  interference  of  tlie 
Court.  A  verdict  having  been  found  for  the 
defendant  and  a  rule  taken  to  set  it  aside,  tlii' 
Court  held  that  before  proceeding  to  give  jmlg- 
ment  as  to  whctlier  there  should  be  a  new  iiiiil 
or  not  the  name  of  some  person  should  be  intro- 
duced as  relator  to  be  responsil)le  for  costs,  lunl 
gave  leave  to  the  Attorney-General  tounicml  tiu' 
proceedings  accordingly. 

Qmtn  V.  Humphrey,  2  R.  &  C.,  (ilHi. 


210.    Relator— Indorsing  name  of  -In  uii 

action  on  a  bond  to  the  Queen  under  chap.  To,  "f 
4th  R.  S.,  "Of  Licenses,"  etc.,  an  attorney  «iis 
named  on  the  writ,  but  it  was  not  sliowii  at 
whose  instance,  or  for  whose  advantage  tliu 
action  was  l)rought.  The  Court  passed  an  oriicr 
staying  the  action  until  plaintiff's  attornuj 
should  indorse  on  the  writ  the  name  of  the  Cierii 
of  License,  or  such  other  person  at  whose  in- 
stance  the  action  was  brought  to  respond  thu 

judgment. 

Queen  v.  McKarcher,  3  R.  k  C.  .S.iT. 


211.    Replevin  —  Goods    cannot    be  re> 

plevied  from  Sheriff--Sec.  .330  of  cap.  94,  H.  S. 
(4th  series),  prevents  the  replevying  of  goods 
seized  by  and  in  the  custody  of  the  .Slieritl. 
under  process,  out  of  the  Courts  therein  reterri'd 
to,  though  such  goods  are  those  of  a  thii  il  piuty, 
a  stranger  to  the  cause  in  which  the  proci-ss 
issued ;  and  where  other  defendants,  acting  i" 
the  Sheriff's  aid  and  under  his  authority,  un- 
joined, the  writ  will  be  set  aside  as  to  all  the 
defendants. 

Carty  v.  Bonuett  et  al.,  3  R.  &  C,  '-W- 


10. . I 


PRACTICE. 


1090 


ai'i.    Kepli'Tin  -  Where  plalntlflT  dlsfon*  ki-fpiMK  t\w  hM^v  in  a  mifo  cfMi.liti.m,  aii>i  tliut 

tiiiiinl  an  lutidn  of  ivplivin,  t\w  ili^fumlant  tliu  lial.ility  of  the  clvfcndant  wan  a  iiiattiT  of 
hiiviiijj  |M.HMi'»«i..n  of  tlio  «oo(U  un.kT  a  iftuin  '  law  wliicli  ho  woiil.l  U'avu  to  the  l'"ull  ('.uiit. 
\m\u\,  tlie  Court  .loclined  to  allow  ilefemhint  to  //,/,!,  /,.,■  HmUy,  .1.,  tliat  the  only  <|iieMion 
try  the  eauHe,  or  to  enter  up  jn.JKnient  U,  removed  for  the  Court  wa.t  whether,  a.sHuniing 
vinnii)  li(i';i,ilt,,\mt  jHiMMd  a  rule  for  ju.lgnient  the  aecideut  to  have  re-sulted  from  negligenee, 
fur  the  defendant  with  eimtn.  I  hh  put  to  the  jury,  the  defendant*,  were  liaMui 

h'rnii.1  V.  Itois,  ;<  H,  &  C,  W.  I  and  that  if  the  defendantM  were  diHHUtislied  with 

I  the  eiiarge  uh  to  negli^jenie,   they  hIiouM   have 

'il.'J.  KVSClndIng  JudKCN  order  The  rule  recjuireil  that  issue  to  he  put  to  the  jury,  and 
iifeMiiial  one  Judge  re.seindiuK  an  order  made  liy  should  have  included  misdirection  in  the  ground 
iiiiotlier  Judge  docit  not  apply  to  orders  which  for  setting  asiile  the  verdict.  Weathcrlie,  .!., 
iiii-  Miade  nlisoliite  in  the  tiist  instance.  |  concuri'ing. 

Tiulics  against  whom  such  orders  are  obtained  /'» »•  Thompson,  .1.— 'i'hat  this  was  a  resurva- 
ix  iKirh  may  apply  to  havo  them  set  aside  if  j  tion  of  a  mixeil  ((uestioii  of  law  and  fact,  and 
iiTiKularly  or  improperly  obtained,  especially  that  in  the  al.sence  of  evidence  to  satisfy  liie 
wluic  tiiey  had  a  right  to  he  heard  liefore  the  Court  as  to  the  negligence  of  the  defendants, 
nnlcis  were  gninled.  the   verdict  could  not  lie  uphehl.     McDonahl, 

111  taking  out  a  rulo  for  interrogatories)  u  rule    C,  J.,  concurring. 
1/m/ should  bo  taken,  and  not  a  rule  nhioliilt  in,         ll'd/wy;  v.  T/u  Muuifi,>ality  of  Colcla  ^i< ,-, 


till'  lii'st  instance. 

Cliamhi  r-i  v.  Iluiittr,  'J  N,  ,S.  I).,  H4. 

'214.    Ke.solndlnR  order  -  A|iplirutlon  for 

the  purpose  of,  where  no  appeal  -Defendants 

liuviiig  been  convicted  of  an  oH'enco  under  the 

l)(pniiiiii)n   Statute    in    relation    to    cruelty    to 

iiiiiiiiiiis,  an  apiilication  was  made  to  a  Judge  of  , 

ilR.  Supremo  Court  for  an  order  for  a  writ  of  '  '"'",*''  "."  'I"t'«ti""«  "f  fnct  a.s  well  as  law,  a  new 


()  K.  &  (;.,  .'im 

On  npjital  fo  the  Siipremt  Court  ofCamulu, 

III  III,  Strong,  J.,ilixs,,i/liiij,  that  theplaintifl" 
was  entitled  to  retain  his  verdict. 

I'l  r  Strong,  J.,  iliiHiiitlinj,  that  there  was  not 
sutKcient  evidence  of  negligence  to  warrant  tiie 
verdict,  and  the  case  reserved  for   the  Court 


rn-iiomri  to  remove  the  conviction  into  the 
Sii|ireiiie  Court.  An  order  having  been  made 
lufiisiiii,'  the  order  applied  for  with  costs, 

//t/'/,  that  the  ofl'ence  being  clearly  of  a  crim- 
iiiiil  nature,  in  the  absence  of  any  authority 
autlioii/.iiig  the  Judge  to  impose  cosu,  or  of  any 
Imil  or  recogiii/ance  to  pay  them,  the  defendants 
cmilil  nut  lie  made  to  pay  the  prosecutor's  costs 
'if  iiliposing  the  order  for  the  cer/iorai-i. 

All  apjilication    was    made   to   the    Court  to 


trial  might  have  been  ordered,  nolwith.standing 
the  objection  was  not  taken  either  at  the  trial 
or  in  the  rule  ni.ii. 

Cokhis/ir  V.  Watxoii,  lOth  March,  JSSJ, 

Cas.  Digest,  f»S. 


216.    RevlvliiR  .liidsment,  Ac.  -Plaintiff, 

as  assignee  of  the  original  judgment  creditors  of 
the  defendant,  issued  a  writ  of  revivor  in  her 
awiiul   that    portion   of  the  order   relating  to  I  "^^■"  '""'"^  against  defendants. 
ciLsts,  a  similar  ajiplication  having  been  previ-  I      ■'^'''''  ""^'  ^'"^  judgment  must  be  revived  in 
oiisly  made  to  the  .Judge  and  refused.  I  ^'"^  '"""^  "^  ^'"''  <"''fc'i"'il  parties,  or  their  legal 

H'hl,  that   there  being  clearly  no  appeal  j,,  '  rei«'«sentatives  in  case  of  death. 
siicli  a  case,    un.ler    the  Judicature    Act    and  \      ""'^''   f'^^ti'-'i^'   'i"'l  precedent  rcijuirc  liiat  a 
Knks,  tile  course  adopted   by   the  defendants' '  J"'lfc'"'«"t.  '^"^«  """Ic  a  matter  of  record,  should 

<"iii,scl  of   applying   to   the  Ccmrt    to   rescind  i  ""''"-' '^^"''''"■'"''^'*  ^■'"'''''' '"''**  •-'*'*<-'"t''^^  f'-'"''"'"'^«- 
was  the  proper  one!  j      Construction  of  4th  R.  S.,  c.  94,  s.  Xw. 

Ill'  RU-e,  20  N.  S.  R.,  (8  R.  &  ({.),  4.37  ;  "'"''  ^'-  ^^^<^''^'^<"  '■'  «'•■  -^  ^-  «•  l^.. 


Set  Siiprn,  1.55  and  157. 


!»C.  L.  T.,  H)8. 


215.    Ke.scrvlnj;  ease  for  Court  —  Mixed 

queation  of  law  and  fiict— I'laintifl"  recovered 
^i  verdict  for  .S.SiXK)  against  the  defendants,  for 
injuries  caused  by  falling  over  an  uurailed  bridge, 
miller  a,  charge  by  which  the  jury  was  instructed 
that  tiie  .accident  resulted  from  the  undoubted 
negligence  of  those  on  whom  the  duty  lay  of 

35 


(8R.  &(i.),  l.-,9; 
8C.  L.  T.,376. 

217.      Revivor  of  Judgment  -   Matter  of 

defence  cannot  be  pleaded  to  an  action  to  revive 
a  judgment  which  existed  anterior  to  the  recov- 
ery of  the  judgment.  If  a  judgment  be  erroneous, 
that  circumstance  will  afford  no  answer  to  an 
action  of  debt  upon  it.  The  only  course  for  the 
defendant  is  to  reverse  it  by  writ  of  error.     The 


1091 


PRACTICE. 


1092 


word  "specialties"  in   chapter  19,  R.  S.,  (3rd 

series),  section  16,  does  not  include  "  judgment." 

Laivrence  v.  McDonald,  I  N.  S.  D.,  413. 

218.  Revivor  of  Judgment— 

Set  JUDGMENT. 

219.  Bight  to  begin  —  If  the  afflrmative 

of  one  of  the  issues  at  the  trial  rests  on  the 
plaintiff,  he  has  a  right  to  begin. 

Furlowj  V.  Cooper,  James,  181. 

220.  Rule  abandoned  by  notice— Motion 

necessary  to  obtain  costs — Though  notice  of 
abandonment  of  a  rule  be  given  to  the  opposite 
side,  yet  he  must  move  to  have  it  discharged  in 
order  to  obtain  his  costs. 

Swan  V.  Pryor  tt  at.,  2  Thom.,  13. 

221.  Rule— A  rule  returnable  on  the  first 

day  of  Term  is  the  same  as  a  four  days'  rule  and 
must  go  on  the  docket,  unless  special  circum- 
stances are  shown. 

McDonald  v.  Mitchell  et  al.,  3  R.  &  C,  274. 

222.  Rule  —  Motion  to  rescind  —  Pleas 

were  added  by  defendant  just  as  the  cause  was 
going  to  trial  in  1876,  to  which  plaintiff,  there- 
fore, had  no  opportunity  to  reply.  The  verdict 
was  for  plaintiff,  and  a  rule  to  set  it  aside  was 
discharged  in  1877.  An  appeal  was  taken  to 
the  Supreme  Court  of  Canada,  the  result  of 
which  was  that  a  new  trial  was  granted  in  1878 
on  the  ground  of  improper  rejection  of  evidence 
and  misdirection.  After  this  decision  was  given, 
plaintiff  obtained  an  order  absolute  in  the  first 
instance  for  leave  to  amend  his  declaration,  and 
reply  and  demur  to  the  added  plea,  on  payment 
of  costs,  if  any.  Defendant  asked  for  a  rule  to 
rescind  this  rule  on  the  grounds,  among  others, 
that  the  application  was  too  late,  that  it  should 
have  been  a  rule  7iisi  in  the  first  instance,  and 
that  the  amount  of  the  costs  should  have  been 
settled  in  the  rule.  The  rule  to  rescind  was 
refused,  and  the  appeal  from  such  refusal  dis- 
missed with  costs. 

Scu/her  v.  Wallace,  2  R.  &  G.,  80. 

223.   Rule  nisi  at  Chambers  returnable 

in  Term — 

Held,  Weatherbe.  J. ,  disaentimj,  that  notwith- 
standing the  omission  from  R.  S.,  4th  series, 
cap.  94,  sec.  5,  of  the  words  contained  in  R.  S. , 
3rd  series,  cap.  134,  sec.  238,  a  Judge  at  Cham- 
bers can  make  a  rule  nisi  returnable  in  Term. 

Oakea  v.  The.  City  oj  Halifax,  1  R.  &  G.,  98. 

The  judgment  in  this  case  was  reversed  on 
appeal  to  the  Supreme  Court  of  Canada. 

4  S.  C.  R.,  640. 


224.  Rule  nisi  below  amended  and  made 

absolute  on  terms— On  appesd  from  the  judg- 
ment of  the  County  Court  refusing  to  set  anitle 
a  default  where  the  writ  had  not  been  peisim- 
ally  served,  the  Court  under  Order  XXVIiI., 
Rule  14,  amended  the  rule  nisi  in  the  Court 
below  by  adding  a  ground  setting  out  that  de- 
fendant had  a  defence  on  the  merits,  and  had 
satisfactorily  accounted  for  his  non-appearance, 
and  made  absolute  the  rule  on  terms  of  a  bond 
being  given  to  the  County  Court  Judge  to  re- 
spond final  judgment,  defendant  to  pay  costs 
of  argument  and  appeal,  otherwise  appeal  to 
be  dismissed. 

Hayden  v.  McNait,  5  R.  &  G.,  541. 

225.  Rule  nisi*  discharging-Where  no 

one  appears  in  support  of  a  rule  nini  for  a  new 
trial  when  the  cause  is  called  for  argument,  the 
rule  imi  will  be  discharged  after  reasonable  time 
for  the  party  who  took  it  out  to  make  such 
application  as  the  circumstances  call  for. 
O'Connor  v.  Royal  Canadian  Ins.  Co. , 

2R.  &C.,373. 

226.  Rule  nisi  for  new  trial  granted  by 

the  Judge  on  circuit  allowed  to  be  ameiiiled  by 
inserting  grounds  brought  to  the  notice  of  the 
Court  by  affidavit  on  the  first  day  of  Term. 

McCully  v.  Dyktman,  3  R.  &  C.,  482. 

227.  Rule  nisi  may  be  modified  on  being 

made  absolute— A  party  moving  to  make  a  rule 

nisi  absolute,  may  ask  for  a  modification  of  that 

rule.  , 

I  Uniacke  v.  Brundiije  tt  al.,  2  Thorn.,  oT. 

228.  Rule  nisi  obtained  without  producing 

document— Right  to  produce  on  argument  of 
the  rule— When  obtaining  a  rule  nisi  from  the 
Judge  in  Insolvency  the  claimants  did  not  pro- 
duce the  original  agreement  of  the  insolvent 
with  them, 

Htld,  that  they  were  not  thereby  precluded 
from  producing  it  at  the  argument  of  the  rule, 
or  accounting  for  its  non-production. 

In  the  Matter  of  Charles  Pyke,  an  Insolrent, 

3  N.  S.  D.,  342, 

229.  Rule  nisi  unopposed  -  The  Coart 

will  make  absolute  without  a;  gument  a  rule  nw, 
which  having  been  duly  served  and  entered  for 
argument,  is  unopposed. 

Bissett  v.  Cordeau,  James,  344. 

230.  Rule  of  Court-Extension  of-  Plain- 
tiff obtained  an  order  nisi  to  set  aside  defen- 
dant's pleas,  and,  subsequently,  an  order  absolute. 


1093 


PRACTICE. 


1094 


From  the  latter  order  defendant  appealed  to  the 
Fuliroiirt,  who  directed  that  the  order  absolute 
be  set  aside,  and  that  the  order  »(i.st  be  sent  back 
to,  and  be  re-heard  before,  a  Judge  at  Cham- 
bers, naming,  with  the  assent  of  the  Judge,  the 
14th  August  for  such  hearing.  The  defendant's 
attorney  attended  on  the  day  fixed,  to  resist  the 
application,  but  the  pluintiff 's  attorney,  having 
mistaken  the  day,  failed  to  appear.  The  Judge 
not  being  sure  himself  that  it  was  the  day  fixed 
upon,  declined  to  proceed,  and  appointed  the 
hearing  to  be  held  on  the  '21st  August.  The 
hearing  was  further  adjourned  to  the  22nd 
August,  on  which  day  the  attorneys  of  both 
parties  attended,  and,  liy  further  postpone- 
ments, to  the  first  Tuesday  of  October,  when 
the  order  was  again  made  absolute.  The  defen- 
dant appealed  from  this  order  on  the  ground 
that  the  Judge,  sitting  ;ilone,  and  acting  upon 
an  order  made  by  the  Full  Court,  had  no  power 
to  extend  the  time  for  the  hearing  to  the  22nd 
August,  or  to  modify  the  rule  or  judgment  of 
the  Court  in  any  way. 

Hdd,  that  the  Court,  in  naming  the  14th 
August  as  the  day  for  the  hearing  of  the  matter, 
did  not  intend  to  confine  the  hearing  to  that 
day,  or  to  deprive  the  Judge  of  the  power  to 
extend  the  time  to  any  future  day, 

Ildd,  aim,  that  plaintiff,  having  had  an  oppor- 
tunity of  proceeding  to  trial  since  his  application 
was  first  made,  of  which  he  had  not  availed 
himself,  the  order  netting  aside  defendant's  picas 
must  be  set  aside. 

TowHsend  v.  Pye,  1  N.  S.  D.,  23. 

231.   Rule  referring  to  Court  evidence  to 

be  taken  before  Master — Jurisdiction  to  hear 
cause— A  cause  was  tried  at  Sydney  and  not 
concluded  when  the  Court  adjourned.  A  rule 
was  then  made  and  consented  to  by  the  counsel 
and  attorneys  of  both  parties,  ordering  that,  in 
addition  to  the  evidence  taken  before  the  Court, 
further  evidence  should  be  taken  at  Sydney 
before  a  Judge  or  a  person  named  in  the  rule, 
und  at  Halifax  before  a  Master  in  the  manner 
set  nut  in  the  rule,  that  all  the  evidence  should 
be  filed  with  the  Prothonotary  at  Halifax,  and 
the  cause  should  be  heard  upon  such  evidence 
before  the  Court  sitting  in  banc  at  Halifax,  and 
the  Court  should  have  power  to  refer  any  matter 
of  account  in  said  ccuse  to  a  Master  or  Referee 
for  his  report  which  report  the  Court  might 
confirm,  reject,  or  utilize,  as  it  should  see  fit, 
and  enter  up  judgment  for  either  of  the  parties  ; 
and  it  was  further  ordered  that  the  Court  should 
have  power  to  make  all  and  any  orders,  and  do 
all  things  necessary  for  the  purpose  of  finally 
disposing  of  the  cause. 


Held,  that  the  Court  had  no  jurisdiction  to 
hear  the  cause  under  the  rule. 

O'txbome  v.  Cape  Breton  Co.,  3  R.  &  ().,  27  ; 

2C.  L.  T.,602. 

232.  Rule  returnable  before  presiding 

Judge  on  circuit — A  rule  to  set  aside  pleas  was 
made  by  a  Judge  returnable  before  "  the  presid- 
ing Judge  of  this  Honorable  Court  at  (iuysboro 
on  the  first  day  of  the  ensuing  October  Term 
there,"  and  was  argued  on  the  first  day  (,'f  the 
Term  after  the  opening  of  the  Court.  Judgment 
was  reserved,  and,  afterwards,  at  Halifax,  the 
learned  Judge  who  heard  the  argument,  made  an 
order  absolute,  setting  aside  one  of  the  pleas, 
and  then  resigned. 

Held,  that  the  order  must  be  rescinded  on  the 
ground  that  it  was  made  returnable  in  CViurt. 

McDonald  v.  McDonald,  3  R.  &  0.,  29; 
2C.  L.  T.,  602. 

233.  Rule  returnable  on  circuit  —A  Judge 

at  Chambers  has  no  power  to  make  a  rule  nin 
returnable  before  the  Court  on  circuit. 

Elliott  v.  McDonald,  3  R.  &  G.,  283. 

234.  Rule  taken  without  notice— Rescind' 

ed — PlaintifT  obtained  a  garnishee  order  which 
was  made  absolute  on  the  I8th  June,  without 
notice  to  the  defendant,  to  attach  the  salary 
payable  to  th*?  defendant  as  school  teacher  in 
the  town  of  Pictou,  for  the  quarter  ending 
August  1st. 

Held,  that  there  was  here  no  debt,  but  only  a 
portion  of  a  salary,  and  that  salary  not  attach- 
able under  the  English  rule  and  the  policy  of 
the  Provincial  Statute  ;  and  that  as  the  rule  of 
18th  June  had  been  passed  without  notice  to 
the  defendant,  and  without  argument,  it  must 
be  rescinded  with  costs. 

/'ra.ser  v.  Mc Arthur,  3  R.  &  C,  498. 

235.  Rule  to  refer- Defendant  appealed 

from  an  order  referring  a  cause  to  arbitration  at 
the  instance  of  plaintiff,  on  the  ground  that 
there  was  a  plea  of  negligence  in  the  conduct  of 
the  services  for  which  the  action  was  brought ; 
but  it  was  not  shown  that  the  defence  would 
really  be  raised.  It  was  also  argued  that  the 
Judge  had  no  jurisdiction  to  refer  the  cause  to 
arbitration  after  a  demand  for  trial  by  jury,  but 
this  ground  was  not  taken  in  the  rule  for  appeal. 
The  appeal  was  dismissed, 

Eaton  v.  Roue,  3  R.  &  G.,  274. 

236.  SatUfiiction  piece— Setting  aside— 

The  assignee  of  a  judgment  recovered  by  the 
plaintiff  against  the  defendant  duly  recorded 
the  certificate  of  judgment  and  the  assignment 


1095 


PRACTICE. 


1096 


in  the  Registry  of  Deeds.     The  plaintiff  after-  ]  than  the  accustomeil   officer,   nor  beyond  the 
wards  undertook  to  deal  with  the  judgment  as   jurisdiction  of  the  Court. 


his  own  and  signed  a  satisfaction  piece,  which 
was  also  recorded.  A  rule  nisi  was  taken  at  tlie 
instance  of  tlie  assignee  to  set  aside  the  satisfac- 
tion piece,  but  the  Court  declined  to  interfere, 
considering  that  the  remedy  must  lie  sought  in 
the  Equity  Court. 

McXab  V.  Shortlaiul,  2  R.  &  0.,  1 ; 
1  C.  L.  T.,  191. 

237.    Security  for  costs— Where  oue  of  two 

plaintiffs  is  absent,  and  tlio  other  insolvent, 
defendant  is  entitled  to  security  for  costs. 

McDowjall  V.  Gddert,  James,  59. 


238.  Security  for  costs-Entry  of  Judg- 
ment for  failure  to  give— It  is  not  necessary  to 
move  the  Court  for  leave  to  enter  judgment 
under  R.  S.  (4th  series),  cap.  94,  sec.  Ill,  where 
plaintiff  has  failed  to  give  security  for  costs 
within  twelve  months  after  service  of  a  rule 
therefor. 

Gray  v.  McKecn ;  Nchon  v.  Fnhon  ; 

2  R.  &  C,  402. 

Sen  infra,  252,  and  COSTS. 

239.  Service  at  last  place  of  abode— 

Hdd,  that  where  the  debtor  was  an  attor- 
ney, a  notice  of  assignment  of  the  debt  served 
upon  him  by  leaving  it  at  his  office  instead  of 
"  at  his  last  place  of  abode,"  tlie  words  used  in 
the  Act,  was  within  the  spirit  of  the  Act. 

O'Connor  v.  Weeks,  3  N.  S.  D.,  71. 

240.  Service  on  company  out  of  Province 

—Plaintiff  entered  on  the  record  a  suggestion 
that  the  Canada  Improvement  Company,  one  of 
the  defendants,  was  absent  out  of  the  Province 
when  the  writ  of  summons  was  issued,  and  on 
tliat  account  could  not  be  served  with  process. 
The  suggestion  was  no<-  traversed,  and  it  was 
contended  by  defendants  that  it  had  not  been 
proved  at  the  trial,  and,  therefore,  that  plaintiff 
should  have  become  non-suit  under  Revised 
Statutes,  cap.  94,  sees.  347  and  350,  and  further, 
that  the  defendant  could  have  lieen  served  under 
section  41,  of  the  Canada  Joint  Stock  Companies 
Clauses  Act  of  1869  (cap.  12,  of  1869),  made  ap- 
plicable to  this  company  by  cap.  119,  of  1872, 
sec.  9. 

Held,  that  the  suggestion  if  the  truth  of  it 
was  denied  should  have  been  traversed  by  de- 
fendants, and  that  the  section  of  the  Canada 
Joint  Stock  Companies  Clauses  Act  referred  to 
did  not  enable  service  to  be  made  by  any  other 


Greijonj  v.  7'he  Halifax  <0  C.  B. 
IV y  <t-  Coal  Co.  et  al., 

4  R.  &  0.,  4.%. 

Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada.  Cas.  Digest,  434. 

Leave  to  appeal  to  the  Privy  Council  refused, 
3rd  Ai>ril,  ISSC.  Cas.  Digest,  544. 

241.  Service-Waiver  of  personal  service 

— Attachment— Personal  service  of  a  rule  /(/</ 
is  waived  by  appearance. 

A  demand  is  only  necessary  before  applying 
for  attachment  where  something  is  required  to 
be  done  as  money  paid,  deed  executed,  &c. 

A  rule  niM  for  an  attachment  for  bleach  of  an 
injunction  need  not  state  tliat  it  was  grauted 
on  reading  the  injunction.  All  that  is  nece-ssiuy 
is  to  produce  the  injunction  in  Court. 

The  Starr  Man ufaclurinij  Co.  (Limit'-d) 

v.  Fairbanks,  3  N.  S.  D.,  4G. 

242.  Service— Wliat  necessary  to  show  to 

dispense  with  personal  service  — Proceedings 
were  had  before  the  Deputy  Commissioner  of 
Mines  at  Halifax  to  obtain  the  forfeiture  of  a 
mining  property  at  Montague,  owned  by  defen- 
dant. The  defendant  reside<l  at  Londonderry  and 
had  agents  at  Montague,  but  no  service  of  notice 
was  made  on  either  him  or  them,  and  ncitlier  lie 
nor  tliey  knew  anything  of  the  proceedings  until 
after  the  areas  were  forfeited.  The  notice  was 
posted  by  a  person  who  appeared  to  be  inlercsteil 
in  procuring  tlie  forfeiture,  and  who  swore  that 
neither  Tobin  nor  any  agent  or  person  employed 
on  the  premises  could  be  found  in  the  district  on 
whom  personal  service  could  be  made.  The 
matter  being  brought  up  by  certiorari, 

Held,  that  in  order  to  dispense  witii  personal 
service,  evidence  should  have  been  given  of  a 
honafdt  search,  or  that  defendant  was  out  of  the 

Province.  __     „, . 

Queen  v.  Tobin,  2  R.  &  «.,  30,). 

243.  Setting  aside  proceedings— Who  maj 

move  —  Plaintiff  having  proceeded  against  de- 
fendant as  an  absent  debtor,  an  application  was 
made  on  behalf  of  one  Willis  claiming  to  be 
owner  of  the  property  attached  to  set  aside  the 
proceedings.  It  appeared  that  defendant  hail 
two  otheu  in  partnership  with  him  in  the  busi 
ness  in  connection  with  which  the  debt  arose, 
one  of  whom  was  .  i  the  Province  at  the  time 
the  process  was  issued. 

Held,  that,  neither  defendant  nor  eitlier  of  his 
partners  having  moved,  there  was  no  one  lieforc 


1097 


PRACTICE. 


1098 


the  Court  who  could  be  heard  in  support  of  the 
contention  tlmt  defendant  when  sued  was  not 
sul)juut  to  the  law  authorizing  proceedings  against 
absent  or  absconding  debtors. 

liobtrtson  v,  Camtron,  2  R.  &  C,  261. 

244.    Setting  down  cause  for  day-A  petit 

jury  cause  on  the  docket  of  causes  for  trial  may 
1)0  net  down  on  a  particular  day  upon  special 
gronnds  and  where  the  circumstances  are 
peculiar. 

Le.''.ific.  of  Phailen  v.  Phnilen,  James,  112. 

'.'43.   Setting-oflr  Judgments-Right  to,  not 

a  legal,  but  an  equitable  right— Cases  in  which 
order  to  set  off  refused — Plaintiff  obtained 
judgment  in  an  action  of  trover  against  the  de- 
fendant, defendant  having  at  the  time,  and  in 
tiie  same  Court,  two  judgments  against  the 
plaintiff  outstanding  and  unsatisfied.  Defendant 
obtiiincd  a  rule  )i/.i/,  calling  on  plaintiff  to  show 
cause  wiiy  one  of  defendant's  judgments  should 
not  be  set  off  against  that  olitained  by  plaintiff. 
On  argument  the  rule  was  made  absolute. 

The  right  of  setting  off  one  judgment  against 
anotlier  is  not  a  legal  right,  but  is  given  by  the 
equitable  jurisdiction  of  the  Court,  with  refer- 
ence to  the  circumstances  of  the  case.  The 
cases  where  a  rule  has  been  refused  are  cases 
where  there  has  been  an  absolute  judgment  f)n 
one  side  and  not  on  the  other,  but  a  jutlgment 
depending  upon  a  contingency. 

McDonald  v.  Lawreiwe,  1  N.  S.  I).,  411. 

246.  Stieriff's  return- Amendment  of— 

The  Court  will  permit  the  Sheriff  to  amend  his 
retnin  to  a  writ  against  an  absent  debtor,  so  as 
to  state  thi'..  the  property  attached  was  the 
properly  of  the  absent  debtor. 

Murixon  it  al.  v.  Boyd,  2  Thom.,  247. 

247.  Special  case-  Court  no  power  to  add 

to— After  evidence  on  both  sides  was  concluded, 
a  juror  was  withdrawn,  and  it  was  agreed  that 
the  Judge's  minutes  should  be  returned  to  Hali- 
fax and  the  cause  treated  as  a  special  case,  the 
Coun  having  power  to  draw  inferences  as  a  jury 
ami  enter  judgment  for  the  party  entitled.  It 
being  discovered  when  the  cause  came  on  for  ■ 
argument  that  no  evidence  had  been  given  at  : 
the  trial  with  respect  to  a  point  material  to 
plaintiff's  case,  the  Court  directed  (defendant's 
counsel  protesting)  that  the  argument  should  be 
postponed  until  further  evidence  was  taken 
before  a  commissioner  as  to  the  point  in  question. 
Mooney  v.  Smyth,  1  R.  &  C,  ,S71. 

Reversed  on  appeal  to  the  Supreme  Court  of 
Canada. 

Smyth  v.  McDowjaU,  1  8.  C.  R.,  114. 


218.  Special  case  stated  by  the  Sessions- 
Motion  for  the  opinion  of  the  Court  on  a  special 
case  stated  by  the  Sessions  of  the  County  of 
Halifax  inquiring  whether  they  could  tax  the 
plaintiffs'  costs  on  an  order  confirming  an  order 
of  affiliation  made  by  two  Justices  of  the  Peace 
and  appealed  against.  Objection  taken  that  no 
rule  iiixi  had  been  served.  The  cause  had  been 
regularly  entered  for  argument. 

Per  Bliss,  J. — The  proper  way  is  to  apply 
upon  the  case  for  a  rule  nid  and  serve  it. 

Per  Haliburton,  C.  J.  — The  rule  will  be 
headed  in  the  cause. 

Oftrftkr^,  ike,  v.  Bi'y.son,  James,  152. 

240.   Speeding  cause  —  Equitable  suit  — 

In  equitable  suits,  the  Court  will  compel  the 
plaintiff  to  speed  his  cause. 

Scely  V.  Gilhtrt,  2  Thom.,  14. 

250.   Stating  case  or  preparing  issues  in 

County  Court— 

Semhle,  that  the  Judge  of  the  County  Court 
nuiy  direct  that  instead  of  the  pleadings,  a  state- 
ment in  a  summary  form  of  the  material  facts  be 
substituted,  or  that  ttie  parties  prepare  issues  or 
have  them  settled  by  the  Judge. 

McDonald  v.  Clarke,  2()  N.  S.  R., 

(8  R.  &G.),  254; 
8  C.  L.  T.,  401. 

2.;i.    stay  of  proceedings— A  rule  staying 

proceedings  until  tiie  ])arties  had  mutually 
delivered  plans  will  not  prevent  defendant,  who 
has  complied  with  the  rule,  from  moving  for 
costs  of  the  Term  against  plaintiff  for  not  pro- 
ceeding to  trial,  the  plaintiff  not  having  com- 
plied with  the  rule. 
I  O'Connor  v.  Fiiher,  James,  269. 

252.  Stay  of  proceedings  by  rule  for 

seciu'ity  of  costs,  operates  against  the  plaintiff 

only. 

McDoHijal'  V.  McDonald,  James,  91. 

253.  Stay  of  proceedings  on  appeal  to 

Supreme  Court  of  Canada— Security — \\here 
judgment  is  for  defendant,  and  plaintiff,  appeal- 
ing, wishes  to  stay  execution  for  defendant's 
costs,  he  must  give  security  for  §750,  or  .?2.')0  in 
addition  to  the  S500  prescribed  by  "The 
Supreme  and  Exchequer  Courts  Act." 

Kemiey,  Amynee,  v.  Dudman, 

2  R.  &  C,  376. 

254 .  Stet  processus— Leave  to  enter  a  stet 

processus  on  account  of  defendants'  insolvency 
will  not  be  given,  unless  applied  fur  immediately 


1099 


PRACTICE. 


1100 


after  the  plaintiff  has  become  aware  of  the  insol- 
vency and  before  he  has  taken  other  steps  in  tiie 
cause. 

Darlinij  v.  McLdlan  et  al.,  1  R.  &  C,  256. 

235.    Stet  processus -Grounds  for— The 

insolvency  and  permanent  absence  of  the  defen- 
dant is  a  sufficient  ground  for  a  rule  to  enable 
the  plaintiff  to  enter  a  xlel  procemu'i. 

Heffeman  v.  Lacy,  James,  267. 

256.  Suggestion  on  record  of  absence  of 

party— Traversing— Service — Plaintiff  entered 
on  the  record  a  suggestion  that  the  Canada  Im- 
provement Company,  one  of  the  defendants, 
was  absent  out  of  the  Province  when  the  writ  of 
summons  was  issued,  and  on  that  account  could 
not  be  served  with  process.  The  suggestion 
was  not  traversed,  and  it  was  contended  l)y 
defendants  that  it  had  not  been  proved  at  tlie 
trial,  and,  therefore,  that  plaintiffs  should  have 
become  non-suit  under  4th  Rev.  Stats.,  cap  94, 
sees.  347  and  350,  and,  further,  that  the  defen- 
dant could  have  been  served  under  section  41  of 
the  Canada  Joint  Stock  Companies  C'Uiuses  Act 
of  1869  (cap.  12  of  1869),  made  applicr.ble  to  this 
Company  by  cap.  119  of  1872,  sec.  9. 

Hi  Id,  that  tlie  suggestion,  if  the  truth  of  it 
was  denied,  should  have  been  traversed  by  de- 
fendants, and  that  the  section  of  the  Canada 
Joint  .Stock  Companies  Clauses  Act  referred  to 
did  not  enable  service  to  be  made  by  any  otlier 
than  tlie  accustomed  officer,  nor  beyond  the 
jurisdiction  of  the  Court. 

Greijory  v.  The  Halifax  and  C.  B.  R'y  and 
Coal  Co.  e/  al.,  4  R.  &  G.,  436. 

Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada. 

Cas.  Digest,  434. 

257.  Suggestion— To  entitle  plaintlfT  to 

enter  suggestion  on  the  record  of  a  judgment 
more  than  six  years  old,  when  defenilant  is  out 
of  the  Province,  tlie  ri'le  must  be  published 
tliirty  days  in  the  Royal  Gazette. 

Keith  V.  Cnnninijhavi,  2  Thom.,  149. 

25S.    Suggestion  —  Wliere  the  plaintiff . 

recovered  a  verdict,  and  a  rule  nid  was  granted  i 
to  set  it  aside,  but  the  plaintiff  died  before  t)ie 
time  for  the  entry  of  causes  for  argument,  an<l 
the  defendant  did  not  enter  the  same,  the  Court 
refused  to  discharge  the  rule  imi  and  allow  the  | 
plaintiff  to  enter  judgment  nunc  pro  tunc,  as  of  I 
the  last  day  of  the  sittings  in  which  the  cause  • 
was  tried,  holding  that  the  defendant  was  not  | 
bound  to  enter  the  cause  until  the   plaintiff's  ' 
representative  became  a  party,  and  that  although  ] 


plaintiff's  rcjiresentative  was  not  precluded  from 
having  the  rule  nini  disposed  of,  he  must  as  pre- 
liminary to  that  end  enter  a  suggestion  on  tlie 
record  and  liecome  a  party  to  the  suit. 

Shepherd  v.   /FAiVe,  1  R.  &  C,  1."). 

259.  Suit  for  proceeds  by  subsequent 

attacher  where  earlier  att.achmeiit  set  aside- 
Grounds  set  out  in  order  visi,  but  not  in  order 
absolute  —  Jurisdiction  amply  shown  —  Tlie 
defendant  R.,  on  the  5th  June,  1880,  sued  out  a 
writ  of  .summons  and  attachment  against  M., 
under  which  the  Sheriff  attached  certain  proper- 
ty of  M.,  which  was  sold  as  perishable  property. 
In  December  following,  defendant  obtained  un 
ex  parte  order,  on  default  of  appearance  ))y  M., 
permitting  him  to  enter  judgment  against  M.  for 
the  amount  of  his  delit  and  costs,  and  directing 
the  Sheriff  to  pay  the  amount  of  the  debt  anil 
costs  out  of  the  proceeds  of  the  sale  in  iiia 
hands. 

On  January  14tli,  1882,  plaintiffs  as  subse- 
quent attachers,  obtained  an  order,  making 
absolute  an  order  niu  previously  granted  re- 
scinding and  quashing  defendant's  summons  and 
attachment,  and  all  suliseiiuent  proceediiigri,  in- 
cluding the  order  for  the  payment  of  the  proceeib 
of  the  sale  on  the  grounds  that  the  debt  claimed 
was  not  due  or  payable  wiien  the  action  com- 
menced ;  that  the  affidavit  stated  no  proper 
cause  of  action,  and  was  irregular  and  defective ; 
that  the  summons  was  not  properly  iiidoisud ; 
that  there  was  no  order  for  the  issue  of  the 
summons  or  attaciimeut,  and  on  otlier  grounds. 
Defendant  having  refused  to  repay  tiie  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 
plaintiffs  to  do  so  in  his  name,  plaintiffs  com- 
menced proceedings  by  bill  in  Equity,  praying 
that  an  account  lie  taken,  and  that  defendant  be 
ordered  to  pay  the  amount  realized  to  the 
Sheriff  or  to  plaintiffs.  The  prayer  of  the 
petition  having  been  granted  with  costs  on  the 
ground  that  the  judgment  obtained  liy  defen- 
dant against  M.,  had  been  set  aside,  and  the 
decision  not  appealed  from  or  reversed. 

Held,  that  the  ground  stated  was  sufficient  to 
support  the  judgment. 

Alio,  that  as  all  the  necessary  facts  were  con- 
tained in  the  order  imi  of  the  15th  January, 
which  was  made  absolute  by  the  order  of  the 
14th  January,  1882,  the  latter  order  was  suffi- 
cient, and  the  jurisdiction  of  the  Court  was  not 
only  ample  but  was  amply  shown. 
Corbitt  et  al.  v.  Robinxon  et  al.,  7  R.  &  G.,  480. 

260.  Supplemental  bill  —  PlalntiflT,  as 

official  assignee  of  M.,  took  proceedings  to  re- 


1101 


PRACTICE. 


1102 


cover  bftck  money  paid  to  defendants  in  fraud  ' 
of  creditors.    Hubsecjuently  tiie  creditors'  assig-  [ 
nee,  on  being  appointed,  obtained  a  rule  niii 
cnlliiig  on   defendants  to  sliow  cause  why  he 
slintdd  not  be  allowed  to  tile  a  supplemental  bill 
anil  become  plaintiff. 

//i-ld,  that  the  plaintiff  was  entitled  to  file  a 
supplemental  bill. 

niii/h  V.  Kenny  et  al.,  R.  E.  D.,  344. 

261.   Supplemental  bill  —  The   firm  of 

Rogers  U  Son  made  a  deed  of  lands  to  a  trustee 
for  tlie  benefit  of  creditors.  Three  or  four  days 
ftfterwards  defendants  obtained  a  judgment 
against  the  firm,  which  tliey  recorded  to  bind 
lands.  The  next  day,  or  the  day  following  that, 
an  attachment  issued  under  the  Insolvent  Act  of 
187">,  by  virtue  of  which  plaintiffs  became  assig- 
nees of  liie  firm,  and  as  sucli  assignees  took  a 
conveyance  of  tlie  lands  in  question  from  the 
trustees  under  tiie  first  deed. 

The  defendants  being  about  to  sell  the  lantls 
under  their  judgment,  plaintiffs  applied  to  the 
Court  for  an  injunction  to  restrain  them  from  so 
doing,  but  the  injunction  was  refused  on  the 
grounil  that  the  title  to  the  lauds  was  in  plain- 
tiffs under  the  conveyances  aii'!  t).vt  defendants 
acquiied  no  lien  under  their  judgment. 

Defendants  having  again  proceeded  to  sell, 
plaintiffs  paid  the  amount  of  tlie  judgment  under 
protest  and  applied  to  a  Judge  for  leave  to  file 
u  supplemental  bill  praying  tliat  defendants  be 
decreed  to  return  the  money  so  paid. 

Htid,  on  appeal  from  an  order  allowing  the 
anienilnient  asked  for, 

Pit-  Weatherbe,  J.,  that  the  amendment  should 
lie  allowed,  as  the  most  direct  metliod  of  testing 
tiie  sol'3  question  l)etween  the  parties  and  put- 
ting an  '/-nd  to  litigation. 

Per  McDonald,  C.  J.,  that  the  relief  prayed 
for  in  tlie  supplemental  bill  was  rendered  neces- 
sary l)y  circumstances  arising  out  of  subse(]uenl 
dealing.s  with  the  subject  matter  of  the  original 
suit,  and  as  the  supplemental  bill  appeared  to 
be  necessary  to  place  tlie  parties  properly  before 
the  roiirt,  the  order  appealed  from  was  rightly 
made. 

Pit  Ritchie,  J.,  the  amendment  should  be 
made  as  clearly  in  furtherance  of  the  original 
cause  of  action. 

McDonald,  J.,  dissenfiny,  on  the  ground  that 
nil  the  ([uestions,  upon  which  the  application  to 
file  tlie  supplemental  statement  proposed  de 
pended,  had  been  fully  adjudicated. 

Alao,  that  since  the  payment  of  the  money 
defendants  had  signed  a  saitiafaction  piece  and 
tlierehy  released  their  lien. 

Johii'i  et  (d.  V.  Barbour  et  al.,  7  R.  &  (i.,  121  ; 

7  C.  L.  T.,  172. 


262.  Supreme  Court  of  Canada— Agents- 
Appointing  —  Conducting  business  witli  the 
Registrar's  office  by  correspondence  is  an  irregu- 
lar practice.  A  solicitor  should  appoint  an 
agent  as  required  by  the  Supremo  and  Ex- 
chequer Court  rules. 

Wallace  v.  Burkner,  2nd  May,  1SS3, 

Cas.  Digest,  380. 


Supreme  Court  of  Canada  — Case, 

adding  fcrmal  rule  of  Court  to— AppeM  placed 
at  foot  of  list  for  hearing  to  permit  the  rule  of 
Court  below  appealed  from  to  be  added,  ooun- 
sel  for  respondent  consenting. 

Wallace  v.  Souther,  6th  Fehruary,  1878, 

Cas.  Digest,  383. 

264.    Supreme  Court  of  Canada  -Case  on 

appeal  Supreme  Court  of  Canada— Adding  for- 
mal judgment  belovir — Hearing  of  appeal  to  the 
Supreme  Court  of  Canada  allowed  to  stand  over 
till  case  perfectci'  by  the  addition  of  the  formal 
judgnjent  of  the  Court  below . 

Kearney  v.  Kean,  4th  Fehruary,  1878, 

Cas.  Digest,  3S3. 

2(Wi.    Supreme  Court  of  Canada— Costs— 

Between  solicitor  and  client — Application  for 
an  order  directing  registrar  to  tax  costs  between 
solicitor  and  client  refused.  The  Chief  Justice 
stated  that  tlie  question  was  duly  considered  by 
the  Judges  at  the  organization  of  the  Court,  and 
it  was  not  thougiit  advisable  to  regulate  costs 
between  solicitor  and  client. 

Boak  et  al.  v.  Merchants'  Mar.  lux,  Co., 
3rd  June,  1879,  Cas.  Digest,  387. 

266.  Supreme  Court  of  Canada -Costs- 
Increased  counsel  fee— Quashing  appeal— An 
application  for  increaseil  counsel  fee  is  not  one 
for  the  Full  Court,  but  should  be  made  to  a 
Judge  in  Chambers.  When  an  appeal  is 
quashed  for  want  of  jurisdiction,  the  Court  may 
order  the  taxation  and  payment  of  costs. 

Be.amiih  et  at.  v.  Kaultiack,  '>th  June,  187',>, 

Cas.  Digest,  ,387. 

267.  Supreme  Court  of  Canada  —  Costs 

not  given  in  haheax  corpnt  matters  —No  costs 
given  in  haf'eas  corpw*  appeals,  as  a  general 
rule,  in  fai'orem  lihertatU. 

In  re  Q.  R.  Johnson,  20th  Fehruary,  18S'l, 

Cas.  Digest,  386. 

But  where  an  appeal  in  a  haheax  cor/mx  matter 
had  been  proceeded  with  after  the  discharge 
of  the  prisoner  and  for  tiie  mere  purpose  of 
deciding  the  question  of  costs,  the  appeal  was 
dismissed  with  costs. 

Fraser  v.  Tupper,  21.it  June,  1880, 
Cas.  Digest,  .386. 


1103 


PRACTICE. 


1104 


268.    Supreme  Court  of  Canada -Counsel 

—Foreign,  not  heard— Counsel,  ifsidinj;  in  tlie 
State  of  New  York  wished  to  be  heard  on  ))ehalf 
of  appellants  in  an  appeal  pending  heforo  the 
Supreme  Court  of  Caiiada.     Refuseil. 

Halifax  Ci'y  IVy  Co.  v.  The.  Quhu, 

Dth  May,  JSS.},  ('as.  Digest,  380. 

260.    Supreme  Court  of  Canada-Factum 

— Irrelevant  matter  in  factum,  reflecting  on  the 
conduct  of  one  of  the  Judges  of  the  Court  below, 
ordered  to  l>e  struck  out. 

irnllacii  V.  Sou'htr,  ,'ith  Fihriiary,  1S7S, 

Cas.  Digest,  301. 

270.  Supreme  Court  of  Canada-Factum 

— Point  not  raised  by — A  point  is  raised  at  the 
hearing  not  in  factum,  ami  counsel  for  respon- 
dent therefoi'e  objects  that  he  is  not  prepivred  to 
argue  it.  The  Coin-t  adjourns  hearing  for  a 
week. 

]\'e>itt)-ii  Conulkt  li'y  Co.  v.  IViudxor  and 
Aiiiiapolin  R'y  Co.,  (!/k  Fthruary,  1S7(), 

Cas.  Digest,  301. 

271.  Supreme  Court  of  Canada  -iiearln;;, 

notice — Affidavit  of  service — When  appeal  to 
Supreme  Ctiurt  of  Canada  heard  tx  parte,  the 
Court  requires  an  affidavit  proving  service  of 
notice  of  hearing,  ■ 

Ktarnty  v.  Ktan,  olxt  Jan.,  IS70, 
Cas.  Digest,  303. 

272.  Supreme  Court  of  Canada- Judi;- 

ment — Xunn    //ro    /uiii: — The    respondent,    the 

assignee   of  an   insolvent  estate,    having    died 

between  the  day  of  hearing  of  the  appeal  and 

the  day  of  remlering  judgment,  on  motion  of 

counsel  for  appellant  the  Court  orders  the  order 

in  appeal  to  be  entered  viiiic  pro  tunc  as  of  the 

date  of  hearing. 

Mtrchanta'  Bank  v.  Smith,  Slrd  May,  1SS4, 

Cas.  Digest,  306. 
See  Supra,  2,")3. 

273.  Surpri.se— Judicial  discretion  -  Ap> 

peal— The  County  Court  Judge  gave  judgment 
for  defen<lant  on  appeal  from  .he  Magistrates, 
and  afterwards  granted  a  new  trial,  on  tlie  ground 
of  surprise  and  the  discovery  of  new  evi<lence. 
The  only  element  of  surprise  consisted  of  the 
fact  that  a  witness  not  examined  in  the  Magis- 
trates' Court  had  given  evidence  in  the  County 
Court. 

ife/d,  that  the  discretion  of  the  Judge  had 
been  unwisely  exercised  in  granting  a  new  trial 
and  hat  there  was  an  appeal  under  section  99  of 
the  County  Court  Act,  1880. 

Orcrxeerx  of  the  Poor  v.  McKenzie, 

3  R.  &G.,  259. 


274.   Term  —  Attendance  on  — After  the 

first  day  of  Term  gentlemen  of  the  bar  iiri'  not 
expected  to  be  in  attendance  in  Court,  unless 
they  have  particular  business. 

Skinntr  v.  Lane,  JamcH,  '.MT. 


27.1.   Time -Answer  to  amended  wr*t  - 

When  to  be  put  in— I'laintitrs,  having  aniein'i'ii 
their  writ,  served  it  on  defendant,  with  a  notice, 
'  indorsed,  re(|uiring  him  to  answer  witiiin  fnur- 
teen  <lays,  otherwise,  plaintiffs  to  be  at  lil)erty  to 
sign  final  ju<lginent  by  default,  and  have  tiiewrit 
taken  }iro  confesno.  Defendant,  who  had  duly 
put  in  his  answer  to  the  original  writ,  diil  not 
within  the  time  limited  in  the  notice  answer  the 
amendment,  and  plaintiffs  obtaine<l  a  rule  iilsl, 
calling  upon  him  to  show  cause  why  the  writ 
should  not  be  taken /H'o  ronfe<in,  etc.,  before  tlie 
argument  of  which  rule  defendant  ])ut  in  ii 
answer,  not  denying  the  statements  in  tlie  anieml- 
ment  but  leaving  the  proof  of  them  to  the 
plaintiffs. 

Ill  fit,  that  the  rule  nisi  must  be  discliiirged 
with  costs,  defendant  having  a  right  to  p'U  in 
his  answer  at  any  time  before  the  marking  nf  ii 
defaidt. 

L,an:ion  1:1  a!,  v.  lielloni,  R.  K.  1).,  10". 


276.    Time— Enlarsenient  of— Tiie  time 

for  ajjpearing  and  jdeadiug  having  been  enlaigeil 
by  several  successive  orders  granted  on  iiearing 
affidavits  urging  the  necessity  for  further  time 
and  accounting  for  delay,  which  orders  wcie 
also  appealed  from. 

Held  that  under  Order  LX,  Rule  .'),  the  Jndge 
at  Chambers  had  power  in  his  discretion  to 
extend  the  time  even  where  the  ap])licatinn  was 
not  made  until  after  the  expiration  of  the  time 
previously  appointed  or  allowed. 

lieynold-i  v.  ilallihar  (laid  Minimj  Co., 

7R.  &(i.,4()(); 
8  C.  L.  T..  17. 


277.    Time-  Extension  of— Ex  parte  order 

—  An  order  allowing  plaintiff  an  extension  of 
time  for  appeal  hiiving  been  granted  ex  jmrh, 
where  the  plaintitf  was  out  of  the  jurisdiction, 
and  defendant  might  have  applied  for  further 
security  for  costs,  the  order  was  quashed. 

Plaintiff,  not  l-aving  received  notice  of  tlie 
decision  from  the  Prothonotary  in  time  in 
enable  him  to  appeal,  was  allowed  time  for  tliiit 
purpose  on  giving  security. 

Barclay  v.  Duttan,  7  R.  &  G.,  iWl 
7  C.  L.  T.,  52. 

See  TIME. 


1105 


PRACTICE. 


1106 


2J8.    TreHpaNH— Writ  In— II  Is  not  ennen-  \  the  agrtfinent  ami  nwanl,  and  was   not   Hied 


tially  iit'ffHHiiry  that  the  writ  in  trettpasH  Hhould 
(li'stiil)e  all  the  IxiuiidariuB  of  tlie  plaint  it!"!) 
Iniid. 

T>,d  V.  Unlit,  '2  Tlinni.,  4*-'«. 

Set  TRESPASS. 


until  Home  time  after  tiie  ))rin||,'ing  of  this  s<dt. 

//(/'/,  tliat  tlie  record  was  inadniiHsilile. 
Hdhj'nx  liaukiwj  Company  v.   Wormll  ct  a/., 

4  R.  &<!.,  4H-2. 


281.   Verdict  excessive 
2Ift.    Trial  -  Practice  on  -  A  plaintiflT  new  trial— 

shoiilil  go  into  tiie  wliole  of  his  case  in  tlie  tirnt 
instance.  It  is  not  coni|ietent  to  him  to  rely 
upon  a  /irima  Jhrii:  i.-me  in  the  tirst  instance 
iiml  then  support  it  l>y  further  evidence  in  rcjily. 


SV'  PLEADING. 
-Remittitur    or 

sm  new  trial. 


282.    Where  an  Individual  or  corporation 

is  liahle  to  indictment  for  non-repair,  an  action 


It  is  in  tlie  discretion  of  tlie  Judge  whetlier  he    ^vill  lie  at  tlie  suit  of  one  wlio  suffers  special 

will  iillow  the  |)Iaintiff  to  give  evidence  in  reply,  '  injury. 

Imt   such    discretion  may   l.e  reviewed    l.y  the  ]  „.„/^, ,.  ,.   (_'i,y  „/ Hu/lfax;  4  R.  &  d.,  ;171. 

L'nurt. 

X<(ti'!/  V.  Foii-lif  ft  nl.,  I  N.  S.  1).,  49.">.  !      Atfinned  on  appeal  to  the  Sui)renie  Court  of 

Canaila. 


3<:e  TRIAL 


280.  Varlance-Non-sult-Record-Plaln- 

titf  siiccl  on  a  money  bond.  There  w  as  a  var- 
iiinue  between  the  ileclaration  and  the  proof,  the 
ilcclaratioii  setting  out  the  words  of  the  condi- 
tion, upon  performance  of  which  the  liond  was 
to  liocome  void,  instead  of  the  oliligatory  part  of 
the  hdiid,  and  the  plaintiff  was  non-suited  with  a 
rule  to  set  aside  the  non-suit.  On  the  first  day 
of  Term  plaintiff  obtained  a  rule  nisi  for  an 
iunindmeiit  of  the  declaration  and  that  a  new 
liiiil  be  granted,  because  the  Judge  on  the  trial 
liiul  improperly  refused  to  grant  the  amendment. 
At  the  argument,  plaintiff  moved  to  discharge 
this  rule  with  leave  to  move  for  another  similar 
to  it,  but  adding  the  words  "on  reading  the 
minuteii."  The  affidavit  of  plaintiff's  counsel 
stated  that  the  Judge  had  refused  leave  to  insert, 
as  one  of  the  grounds  in  the  rule,  that  the  amend- 
ment had  been  refused.    This  was  contradicted. 

Hi  III,  that  the  rule  »in  must  be  discharged,  as 
the  Judge's  minutes  were  conclusive  as  to  what 
took  place  at  the  trial,  ami  plaintiff  had  his 
lemeily  under  the  Statute  for  the  alleged  refu- 
sal to  grant  a  rule  ;  that  the  plaintiff  was  prop- 
erly non-suitetl  on  account  of  the  variance,  and 
tliat  the  non-suit  could  not  be  set  aside  for  the 
alleged  refusal  of  the  Judge  to  grant  the  amend- 
ment, even  assuming  plaintiff's  account  of  the 
matter  to  be  correct. 

The  declaration  also  contained  a  count  on  an 
award  in  a  prior  suit  on  the  same  bond.  The 
said  suit  was  brought  for  the  first  instalment, 
hut  the  arbitrators  to  whom  the  matter  was 
referred  by  agreement  awarded  the  whole 
amount  of  the  bond  to  the  plaintiff.  The 
present  action  was  for  the  third  instalment.  A 
record  was  made  up  in  the  first  suit  setting  out 


Cas.  Digest,  98. 

i    283.   Witness,  recalllnK-The  defendant's 

counsel  desired  at  the  close  of  plaintiff's  case,  to 
recall  a  witness  to  examine  him  as  to  what  he 
meant  when  he  spoke  of  the  delivery  of  the  deed, 
*  having  already  had  the  opjiortunity  of  cross- 
examining  him  upon  the  point.  The  Judge  who 
tried  the  cause  declined  to  allow  the  witness  to 
l)e  re-called  for  that  purpose. 

Hf/il,  that  it  was  a  matter  within  the  discre- 
tion of  the  Judge,  and  that  he  had  exercised  the 
discretion  wisely. 

Graham  v.  (Iraham,  '2  R.  &  C,  '265. 

284.  Winding-up  order-Notice -Second 

application  on  same  petition — An  order  was 
made  for  the  winding-up  of  the  company,  and, 
un<ler  that  order,  a  provisional  li(]uidator  was 
appointed.  The  order  was  set  aside,  as  notice 
had  not  been  given  as  re(|uire<l  by  the  Statute, 
Xotice  was  thereupon  given,  and  a  new  order 
taken  without  any  further  petition. 

Hdd,  that  no  new  petition  was  necessary. 
In  re.  Steel  Company  of  Canada  (Limited), 
\  ,5R.  &(!.,  141. 

On  apiiial  to  the  SH/rreme  Court  of  Canada, 
Held,  reversing  the  judgment  of  the  Supreme 
I  Court  of  Nova  Scotia,  Fournier,  J.,  dimentiwj, 
'  that  45  Vic. ,  c.  2.3,  was  not  applicable  to  such 
company. 

]      The  Merchnntu'  Bank  of  Halifax  v.  Gille»pie, 
I  lOS.  C.  R.,  .312; 

5  C.  L.  T.,  276. 
! 

285.  WIndlng-up  order-Petition  for— 

Insolvency  must  be  shown— In  applying  for  a 
winding-up  order  it  should  be  shown  in  the 
petition    that    the  company    is  insolvent,    the 


1107 


PRACTICE 


1108 


genornl  sutcmcnt  "that  the  company  ia  insol- 
vent  within  the  Act  "  not  Injing  8iirticient. 

A  rcHtraining  order  to  prevent  tho  exeuution 
of  process  ftt  the  instiinoe  of  juilginent  croilitors 
ciMi  only  he  iippliotl  for  after  prunentation  of  tlio 
I>ctition  anil  such  petition  can  only  ho  presenteil 
after  four  tlays'  notice.  Any  earlier  presentation 
or  application  is  irregular. 

fn  re  /hf  Eldorado  Union  Sti.re  Co., 

V.  R.  .^  (J.,  r)14  ; 
6  (\  L.  T..  542.  I 

286.  WIndins-up  order   Publication  of, 

notice  —  Notice  of  application  to  wind-up  an 
insolvent  hank,  under  the  Dominion  Act  of  1SS2, 
by  puhlication  in  the  Canada  (lazflte  and 
lioiitd  Ouvtlc  of  the  Province,  anil  two  Halifax 
and  two  Liverpool  papers,  hild  sutheient. 

Re.  the.  Dank  oj  Lirerpool,  6  R.  &  C,  531. 

The  judgment  in  this  case  was  reversed  on 
appeal  to  the  Supreme  Court  of  Canada. 

14  S.  C.  R.,  6.'>(). 

287.  Winding-up  order,  requisites  or— 

Held,  per  McDonald,  C.  J.,  and  McDonald, 
Sniitli  and  Weatherhe,,  J.I.,  tiuvt  a  winding-up 
order  must  name  the  permanent  liijuidator,  and 
coulil,  therefore,  only  be  made  after  notice  to 
creditors,  contributories,  &c. 

Rigby  and  Thompson,  JJ.,  dU^entimj. 

In  re  Steel  Company  of  Canada  (Limited), 

5  R.  &  (i.,  49. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  that  45  Vic,  c.  2.S,  D.,  was  not  applicable 
to  such  company. 
The  .Merchants'  Bank  of  Halifax  v.  Oillespie, 

10  S.  C.  R.,312; 
5  C.  L.  T.,  276. 

288.  Writ -Attorney  subscrlbing-Chap- 

ter  \:U,  Rev.  Stats.  (3rd  series),  "Of  Pleadings 
and  Practice  in  the  Supreme  Court,"  sec.  197,  in 
reference  to  the  filing  of  bail  in  cases  where  the 
Judge  has  refused  a  rule  nixi  for  an  appeal,  and 
an  appeal  is  taken  under  the  Statute,  is  confined 
in  its  operation  to  private  parties,  and  does  not 
extend  to  the  Crown. 

The  proceedings  having  been  instituted  in  the 
name  of  the  Attorney-General  of  Canada,  a  rule 
niiii  was  taken  out  to  set  them  aside,  on  the 
ground  that  the  Attorney-General  of  Canada 
not  having  been  admitted  a  barrister  or  attorney 
under  Rev.  Stats.  (3rd  series),  cap.  l.SO,  was  not 
qualifled  to  subscribe  a  writ  in  this  Province. 

Held,  that  the  objection  not  having  been  taken 
^intil  after  a  plea  pleaded  and  a  trial  had,  had 
l>een  waived. 


Semhle,  that  tlie  signing  of  the  process  in  tlie 
manner  excepted  to,  if  objectionable  at  all,  wm 
merely  an  irregularity  and  not  a  nullity. 

Queen  v.  Hyernon,  2  N.  S.  D.,  276, 

289.  Writ,  direction  of-Constructlon  of 

Rev.  Stats.,  c.  75,  8.  25,  and  Prov.  Act  of  1863, 
c.  1,  8.  13— The  directing  of  the  writ,  in  a  Hiiit 
before  a  Stipendiary  Magistrate  for  suaiiiiurs 
wages,  to  any  of  the  constables  of  the  Couiity 
instead  of  to  the  Sheriff,  or  his  deputy,  is  nut 
a  nullity,  but  a  mere  irregularity  which  is  wiiivetl 
by  appearance. 

The  jurisdiction  of  the  Stipendiary  Magistrate 
under  Revised  Statutes,  chap.  75,  is  concurrent 
only  with  that  of  two  Justices  of  the  Peace  ami 
not  exclusive.  In  this  case  the  writ  was  signeil 
by  and  made  returnable  before  the  Stipi'mlimy 
Magistrate,  but  two  .Tuatioes  of  the  Pciite  were 
substituted  for  him  on  the  trial  by  the  re(iiiest 
of  the  defendant. 

Held,  that  the  irregularity,  if  any,  was  ciireil 
by  the  assent  of  the  defendant. 

Construction  of  Revised  Statutes,  chap.  7."), 
sec.  25,  and  of  Provincial  Act  of  1865,  chap.  1, 
sec.  13. 

Anderton  v.  Maxon,  1  N.  S.  D.,  1; 
2  0M„.TO. 

290.  Writ-Irregularity-A  writ  prima 

facie  regular  will  not  be  set  aside  for  an  irregu- 
larity in  the  return  day  appearing  upon  affidavit. 
Cutlip  v.  Cook,  James,  445. 

291.  Writ  —  Irregularity  of -Plaintiff 

brought  an  action  against  defendant,  declaring 

;  in  form  and  substance  upon  a  judgment  obtaineil 
by  plaintiff's  intestate,  and  duly  recorded  almut 
twenty-three  years  previously.     Defendant  cti- 

;  tered  an  appearance  to  the  writ,  and  8ul)se(|uent- 
ly  thereto  plaintiff  obtained  an  order  for  leave  tu 
amend  his  declaration  by  adding  to  tlie  second 
count  the  words  "and  also  for  execution  tliere- 

I  of."  Defendant  then  applied  to  set  aside  for 
irregularity  the  writ  and  proceedings,  on  the 
ground,  first,  that  the  judgment  sought  to  Iw 
recovered,  being  more  than  twenty  years  old, 

I  an  order  or  rule  authorizing  the  issue  of  tlie  writ 
should  have  been  obtained  before  it  was  issued ; 
second,  that  the  writ  was  not  in  the  form  pre 
scribed  by  law  ;  third,  that  the  whole  proceed 

,  ings  were  not  in  accordance  with  the  provisions 
of  the  Revised  Statutes  relating  thereto. 

Held,  that  although  the  writ  was  not,  either 
in  its  direction  or  its  form,  framed  in  accordance 
with  the  statutory  provisions,  yet  regarding  tiie 
spirit  of  the  Act,  and  the  circumstances  of  the 
case,  the  defendant  was  as  fully  apprized  of  the 


1109 


PRINCIPAL  AND  AGENT. 


1110 


pliuntifTn  purpose  a«  he  would  have  huen  if  the  j 

ffiMii  |ircHLTil>eil  h.ul  hccn  exiiutly  adopted,  and 

tlivrnletoset  unidetlie  proceedings  wa.i  tliorefore 

(li.iclmrged. 

Craiii'  V.  Jai-oh'i,  1  N.  S.  1).,  1S7, 

392.   WrltN  or  replevin  -Beturn- Writs 

of  I't'pluvin  ahoidd  he  made  returnahle  under  the 
Act  of  IS,")4,  eaji.  7,  and  not  on  a  special  day. 

Johiisnii.  V.  A'oii,  Janie.'*,  446. 

293.   Writs -Return  of-Writs  Issued  and 

servfil  in  I'ictou  and  returnahle  in  Ciipe  lireton 
liuiiiM  he  made  returnahle  in  thirty  day.s  after 
service ;  hut  the  defeut  will  he  unieiided  upon 
})iiyiiH'nt  of  costs. 

Oirroir  v,  Di<'kion  ft  ah,  James,  445. 

29t.   Writ  of  summons  —  Practice  —  Ser* 

vice  after  six  months — Wiiere  a  writ  of  sinn- 
mmis  was  served  more  than  six  months  after 
iasuu,  and  the  defendant  entered  into  negotiu- 
tioiiJ  for  a  settlement  with  knowledge  of  the 
service,  and  did  not  apply  to  set  it  a.^ide  for 
several  weeks. 
HM,  that  the  application  was  too  late. 

Symondx  v.  lierlcttt  et  al.,  4  R.  &  (i.,  390. 

295.  Writs  -Signing  of  by  Deputy  Clerk 

—The  Deputy  Clerk  of  the  County  Court  held 
aiitlKiiizcd  to  sign  writs,  although  the  Clerk  he 
nnt  ill,  ahsent  from  home,  or  otherwise  unahlc 
to  attend  to  his  duties. 

Bank  of  Xora  Srolln  v.  MrKr.rroir, 

5  R.  i\;  (!.,  27r). 

296.  Writ -Signed  liy  Deputy  Clerk - 

A  writ  of  sunnnons  was  signed  in  tlie  name  of 
the  Clerk  of  the  County  Court  hy  a  Deputy 
appointed  hy  the  Clerk,  who,  it  was  contended, 
could  only  appoint  a  deputy  to  act  for  him  when 
he  was  "  ahsent  from  home,  sick,  or  otherwise  j 
unable  to  attend  to  his  duties."  | 

Hi^lil,  that  the  onus  was  on  the  party  seeking 
to  avoid  the  writ  to  show  that  when  it  was 
signed  Ijy  the  Deputy  the  Clerk  was  neither 
"  sick,  ahsent  from  home,  nor  otherwise  unahle 
to  attend  to  his  duties." 

Kandick  v.  Arthur,  5  R.  &  C,  28'J. 

297.  Writ  —  Issued  witliin    tlie  period 

limited  by  Statute  of  Limitationa— When  a  ' 
Bumniary  writ  was  returned  unserved,  and  after 
tlie  lapse  of  a  year  an  alias  writ  for  the  same 
cause  of  action,  laying  the  damages,  however, 
at  more  than  £20  was  sued  out,  neither  the 
lapse  of  time  nor  the  variance  in  the  amount  of 
ges  will  destroy  its  character  as  an  alias. 


As  tlie  first  writ  was  the  commencement  of 
the  action,  no  replication  was  rei|uired  to  the 
pleu  of  the  Statute  of  Limitations. 

Smith  v.  Gillifs,  2Thom.,  M\. 


PRECEDENCE,  AT  THE  B.\R 
Se^.  (tIJEEN*S  COUNSEL. 


PRESCRIPTION - 

EJECTMENT-LIMITATIONS  OF  ACTIONS 
AND  SUITS -TRESPASS. 


PRESENTMENT- 

■SV'  BILLS  OF  EXCHANGE  AND  PROMISSORY 

NOTES. 


PRINCIPAL  AND  AGENT. 

1.  Agency-Power  of  attorney  given  to 

insurance  agent  —  Company  not  liable  for 
transactions  outside  their  ordinary  business— 
The  defendants,  an  insurance  company,  gave  a 
power  of  attorney  to  their  agent,  whereby  they 
constituted  him  their  true  aadhiwfnl  attorney 
to  act  as  the  agent  and  receiver  of  the  said  com- 
pany, and  for  that  purpose  to  effect  insurances 
on  ))ehalf  of  the  company,  and  the  power  of 
attorney  conferred  other  powers  necessary  to 
the  ordinary  working  of  such  a  company.  The 
defendants  deposited  with  the  plaintitT,  a  hanker 
!Mid  broker,  and  bought  exchange,  etc.,  the  ac- 
count l)eing  kept  in  the  name  of  the  company, 
and  in  the  course  of  the  trans.action  he  became 
indebted  to  the  plaintiff  in  the  sum  of  S.SI4.18, 
for  which  action  was  brought. 

Held,  that  defendants  were  not  liable,  the 
transactions  being  outside  of  their  ordinary 
business. 

McDonald  v.  Royal  In.-<.  Co.,  3  R.  &  fJ.,  428. 

2.  Agent  accounting  to  Ills  principal- 
Receipt  not  conclusive — Plaiutiflfa  hired  a  vessel 
to  N.  &  Co.  to  carry  a  full  cargo  from  Halifax 
to  Liverpool,  the  freight  to  be  £850,  and  the 
plaintiffs  to  take  the  freight  and  primage,  as  per 
hills  of  lading,  to  the  extent  of  £850,  in  final 


nil 


PRINCIPAL  AND  AGENT, 


1112 


jwyineiit  at  Halifax,  without  rei-ourso  on  N.  A 
Co.,  wlioHc  ri'HiMiiiMiliiiity  wan  to  cuiuio  aM  hooii 
as  tiiu  gooilM  wcru  on  lioaiil,  tlio  vchhoI  holilint{  a 
lien  on  the  cargo  for  freight.  'I'lio  deficiency,  if 
any,  wan  to  l»e  jwiid  liy  N,  it  To.,  mm\  tlieexcenH 
over  t'H."i(»  to  lie  i)rfiviileil  tor  l>y  numter'H  ilraft 
agaiiiHt  freight.  Of  the  freight  on  the  cargo, 
tM.Vi  wuH  payable  liy  third  perHonn,  ami  tdO.'i  la. 
8<l.l)y  X.  it'  Co.,  making  in  all  ill, 047  7h.  H.l.  being 
an  cxccNHof  tin;  7h.  Hil.,  for  which  the  niattter 
accepted  a  draft  payable  at  the  otlice  of  defend- 
ant, who,  in  this  tranwiction,  was  the  agent  of 
the  idaintitTs.  The  acceptance  was  indorsed 
before  maturity  to  V.  k  H.,  for  value.  At  Liver- 
pord  the  master  gave  an  order  in  writing  to 
defendant's  house  to  pay  the  d-aft  out  of  the 
freight  first  collected.  Defendant  onl>  admitted 
having  collected  ir)17  Ss.  <»d.,  f)f  which  ho  paid 
to  the  captain  Ci')  l.')s.  7d.,  the  balance  being 
accounted  for  thus  :  "  Disbursements,  t''2S4  4s. 
Od.  ;  paid  acceptance  of  N.  k  Co.,  fllt7  7s.  8d.'" 
The  captain,  after  learning  the  items  of  the 
account,  some  of  which  were  professedly  un- 
settled, being  stated  as  "  about  "  the  sums  set 
down,  gave  a  receijit  for  the  t.V)  ITw.  7<1.,  but 
shortly  after  wrote  defendant,  disputing  the 
correctness  of  the  acccmnt,  and  expressly  notify- 
ing the  defendant  not  to  part  with  the  €197  7s. 
8d.  deducted  from  the  freight. 

He!(f,  that  the  receipt  could  not  be  relied  on 
as  conclusive  in  an  action  by  the  plaintiff  against 
the  flefcndant  for  money  had  and  received,  and 
that  the  items  of  disbursements  could  only  be 
gived  under  a  plea  of  set-ofT. 

IlfM,  fnrlher,  that  the  indorsement  of  the 
acceptance  to  P.  i%  15.  gave  them  no  lien  on  the 
fund  in  Liverpool,  and  that  they  could  not  com- 
pliiin  of  the  revocation  of  the  captain's  order  to 
pay  the  draft ;  and  that,  apart  from  this  ground 
altogether,  the  defendant,  as  the  agent  of  ti'd 
plaintiff,  was  Iwund  to  account  to  his  principal, 
and  could  not  set  up  the  rights  of  third  persons 
in  an  action  by  the  principal. 

Held,  afso,  that  the  action  for  money  received 
was  properly  brought  by  the  plaintiff  as  princi- 
pal against  the  defendant  as  his  agent. 

McFalridije  et  at.  v,  Carvill,  4  R.  &  G.,  286. 

3.  Agent— Authority  of-Bankruptcy  of 

principal  determines  authority  of  agent. 

Roper  V.  Shannon,  2  N.  S.  D.,  146. 

4.  Agent-Anthorlty  of-Defendant  drew 

up  and  placed  in  the  hands  of  Allan,  a  real 
estate  agent,  a  memorandum  in  the  follow- 
ing form  :  "I  will  sell  ten  acres  of  land  (includ- 
ing the  water  lots),  as  also  two  and  three- 
quarters  acres  of  laud  belonging  to  Judge  John- 


stone adjoining,  for  the  sum  of  four  hmi<lr<?il 
and  thirty  dollars  pet  acre  e(|ual  to  ?'.'i4S'.>.,'ii» 
or  t;i37(»  12s.  6d.,  and  on  which  sum  I  will 
allow  you  a  commission  of  two  per  cent."  ihe 
memorandum  then  specified  the  terms  of  hA: 
Allan  entered  into  a  written  agieenient  with 
plaiutitr  for  the  cale  of  the  land  .,n  the  ttTiiis 
mentioned.  The  agreement  not  being  canii'd 
out  the  plaintiff  brought  a  "uit  for  specitic  puv- 
forinance.  setting  out  the  two  agreements. 

Ifi/il,  that  the  memoraiid\nn  handed  tn  .Minn 
was  a  pf)wer  to  sell  on  the  prescribed  tfiiiis 
without  restriction  as  to  purchaser,  if  the  teniis 
coidd  be  obtained. 

Honi'<hy  V.  Johnxfow,  3  X.  S.  I).,  1. 

5.  A«ent-Aiithorlty  of -Where  the  plain. 

tiff,  having  merely  an  authority  as  agent  of  tho 
patentees  of  a  certain  invcn*ion  to  make  jmi- 
posals  or  ofl'ers  to  such  jjorsons  as  he  sliould  see 
fit,  to  bring  the  invention  into  use,  receiving 
from  the  i)atcntees  one-fourth  of  the  royiilties 
or  profits  for  his  services,  entered  into  an  agree- 
ment with  defendant  wherein  it  was  recited  limt 
thei)atentce8  had  disposeil  of  one-fourth  iiilcTent 
in  the  patents  to  plaintiff,  and  whereby  ])I  linliff 
disposed  of  one-half  his  interest  in  the  patents  to 
the  defendant  in  consideration  of  tlie  sum  of 
.*000,  !?4n(»  of  which  was  afterwards  paid. 

H>f(l.  that  the  verdict  in  favor  of  the  lOaintiff 
in  an  action  brought  to  recover  the  balance  of 
the  consideration  nicmey  coulil  not  be  snstiiineil 
without  proof  that  the  defendant  assented  to  the 
agreement  with  full  knowledge  of  the  only  in- 
terest to  which  plaintiff  could  lay  claim  in  rehi- 
tion  to  the  patents. 

Quatrc,  whether  the  plaintiff  could  succeeil 
even  after  bringing  home  such  knowledge  to 
defendant. 

Wilkins,  J.,  (li'*''ent!nij,  although  his  opinion 
did  not  necessarily  conflict  with  the  above  pro- 
position, as  he  considered  that  "the  parties, 
when  they  contracted,  had  the  same  knowledge 
of  all  the  facts." 

Harrinf/ton  v.  Heynoldii,  l  R.  &  C,  134. 

6.  Agent-Llablllty  of  principal -fleneral 

agency— Special — Defendant  obtained  »  loan  of 
£200  on  mortgage  from  Cogswell  through » 
solicitor  doing  business  at  Wolfville,  who  made 
a  charge  of  £10  for  conveyancing  and  commis- 
sions, and  a  furthe.-  chaige  of  £10  for  guaran- 
teeing the  defendant  from  loss,  in  case  the  prin- 
cipal was  called  for  within  five  years.  The 
mortgagee  did  not  authoi  ize  the  taking  of  any- 
thing beyond  the  legal  rate  of  interest,  was  not 
cognizant  of  it,  and  did  not  participate  in  it; 
the  rate  of  interest  stipulated  for  was  six  p«f 


1113 


PRINCIPAL  AND  AGENT 


1114 


cent.,  wliiiili  wiiH  all  that  tlic  mortgagee  received. 
Till!  siiliuitor  Htateil  in  evitleiice  tliat  wiien  tiiu 
iirfL'tiiliiiit  applied  to  liiiii  for  money  ho  wrote  to 
tliu  tiKirtgaget ,  who  agreetl  to  lend  it  on  tiiu 
KcciU'lty  oti'ered,  and  Kent  a  sum  wiiich,  together 
with  an  amount  already  in  hia  ImndH,  made  up 
lilt'  i'.tH) ;  that  he  wax  not  the  agent  of  the 
mni'tgii^'<!e  in  any  caHe  to  invcHt  IiIm  money,  and 
tliikt  ill  remitting  the  intere.st  he  deducted 
iiiithiiig  for  commiHHion.  Hut  defendant  Hwore 
that  (III  the  tirHt  ouciiHion  when  he  applieil  to 
tliu  Niilicitur,  the  hitter  trdd  him  he  had  t:2(N>  to 
lend,  tiiat  ho  had  advertised  it,  and  that  it  wuh 
tlio  nioi'tgagee'M  money. 

Ildd,  that  the  wrong  done  tu  defendant  wax 
nut  done  liy  the  mortgagee,  liut  l)y  the  Holicitor, 
nut  us  iiiortgageeV  agent,  hut  while  acting  on 
his  own  hehiilf,  and  further,  that  iiHHuming  him 
to  lit'  the  agent  of  tiie  mortgagee,  a,n  he  \\i\n  not 
a  general  agent,  liut  a  particular  agent,  defen- 
(hint  could  not  aHMume  that  he  had  been  author- 
i/.eil  to  do  an  illegal  act. 

Alinou  It  nh  V.  Foot,  K.  E.  IX,  l. 

'u  Agent  or  Insurance  company-Proof 

of  agency — H.  P.  represented  himself  to  he  the 
iiguiit  of  the  defendant  company,  employing  suli- 
ugents,  elfecting  policies  and  paying  losses;  in 
their  name,  and  it  was  stated  by  one  of  the  pro- 
f(;ssed  .suli-ageiits  of  the  company  that  H.  P. 
wii.i  the  ajjont.  This  was  not  contradicted  by 
the  alleged  agent,  whose  evidence  was  read  at 
the  trial,  and  who  admitted  that  he  had  acted 
as  agent  of  the  company,  and  had  sent  the  pre- 
liminiiry  ])roofs  in  this  case  to  the  company. 
Ihkl,  that  this  was  sulhcient  proof  of  agency. 
Pe/ijiit  V.  X'orlh  liritiKh  ct-  Mtrcantik 

Iiu*.  Co.,  1  R.  &  G.,  219. 

8.  Agent  suing  as  principal  -  Amendment 

by  adding  principal  as  plaintiff— L.  W.  brought 
un  iictiou  to  recover  damages  for  the  breach  of 
a  contract,  made  by  defendant,  for  the  supply 
of  a  (juantity  of  canned  lobsters. 

It  appeared  that  in  making  the  contract, 
plaintifl"  was  merely  acting  as  agent  for  M.  L. 
\V.,  and  that  he  had  no  personal  interest  in  the 
tninsaction  beyond  the  fact  that  his  remunera- 
tion was  dependent  upon  the  amount  of  profit. 

Htlil,  tliat  the  understanding  between  plaintiff 
ami  M.  L.  \V.,  as  to  the  mode  in  which  plaintiff 
was  to  1)6  remunerated  for  his  services,  could  not 
«nal)le  the  latter  to  recover  in  his  own  name  for 
a  breach  of  the  contract. 

Leave  having  been  granted,  on  an  application 
made  for  that  purpose,  to  amend,  by  adding  the 
name  of  M.  L.  W.  as  plaintiff, 

Hdd,  that  under  the  wording  of  Order  XVI., 


Rule  10,  Huch  an  amendment  could  not  be  mado 
in  the  absence  of  a  written  consent  by  tlie  party 
to  be  joined. 

\\'Hr~Mr<i  V.  I(VW>,  7  R.  &  (1.,  414. 


0,    Auctioneer  —  Authority  of-  An  auc« 

tioneer  was  instructed  to  sell  laud  in  lots  liy 
auction  for  three  defendantH,  and  after  selling 
Home  of  the  h)ts  announced  in  the  presence  of 
two  of  the  defendants  that  if  any  one  wanted  to 
j  iiuy  he  should  come  to  his  othce  and  he  would 
be  prepared  to  treat  for  the  purchase  of  the 
balance.  Phiiiititr  fjurchased  a  lot  ut  private 
sale  from  the  auctioneer,  and  a  memo,  of  the 
transaction  was  signed  by  the  auctioneer  and 
the  purchaser. 

Htld,  that  even  assuming  an  ac(iuiescencc  of 
the  two  defendants,  who  were  present  at  tlie 
invitation  given  by  the  auctioneer,  bidding  upon 
themselves  and  the  other  defendant,  yet  as  that 
invitation  was  only  to  come  to  his  ofiice,  when 
hu  would  be  prepared  to  treat  as  to  tht  balance 
of  the  lots,  the  uc({uiescenc«  did  not  give  him 
any  authority  to  bind  the  defendants  by  a  pri- 
vate sale. 

Hurt  V.  I'ryor  et  uL,  1  R.  &  C,  53. 


10.    Broker  effecting  Insurance  -Agent  of 

insured — Plaintiff  applied  to  one  Haley,  who 
acted  as  a  broker  for  the  Shipowners'  Associa. 
tion  of  Windsor,  and  also  for  the  defendant 
company  doing  business  at  Halifax,  for  insurance 
on  one-fourth  interest  in  a  vessel  on  a  voyage 
from  Cochin  to  New  York  via  Colombo  and 
Alipee.  The  broker  replied  that  the  "  Ship- 
owners' Marine  "  did  not  care  for  the  risk,  but 
he  tiiought  he  could  place  her.  Plaintiff  wrote 
him,  saying  in  substance  :  "  You  may  place  in- 
surance on  Charlit  at  your  figures.  I  think  it 
should  be  done  for  lliree  per  cent.,  but  do  the 
best  you  can.  Let  me  know  as  soon  as  possible." 
The  broker  then  applied  to  the  defendant  com- 
pany for  insm-anceon  plaintiff's  vessel,  "Cochin, 
All  pet  and  New  York,"  but  the  vessel  sailed  and 
was  lost  on  a  voyage  from  Cochin  via  Cokmibo 
and  Alipee  to  New  York. 

Held,  that  the  broker  was  the  plaintiff's  agent 
and  inasmuch  as  the  insurance  he  applied  for 
was  on  a  different  voyage  from  that  on  which 
the  vessel  sailed  and  was  lost,  the  plaintiff  must 
fail. 

Held,  further,  that  notice  of  abandonment  was 
necessary,  although  the  suit  was  brought,  not  on 
the  policy  of  insurance,  but  for  not  issuing  a 
polic;. . 
Dickie  v.  Merchants'  Marine  Insurance  Co., 

4  R.  &  G.,  244. 


1115 


PRINCIPAL  AND  AGENT. 


1116 


11.   Common  carriers  —  Contraet  made 

with  agent— Agent's  employees— Power  to  do 
certain  acts— Ordinary  course  of  business- 
Liability  of  principal  in  case  of  loss— A  num- 
ber (if  cases  of  wine  were  delivered  to  8.  &  Co., 
defendants'  agents,  at  the  port  of  Antwerp,  to 
be  forwarded  to  plaintiff  at  Halifax,  N.  S.  Tlie 
bill  of  lading  was  signed  by  S.  &  Co.,  pp.  (1.  K., 
and  described  the  goods  as  shipped  in  good  order 
and  condition.  The  goods  were  shipped  from 
Antwerp  by  a  steamer  running  to  Liverpool  G. 
B.,  and  on  their  arrival  at  that  port  were  re- 
shipped  on  board  one  of  tlie  defendants'  steam- 
ships for  Halifax.  On  their  arrival,  plaintiff 
was  notified  of  the  fact  by  C.  &  Co.,  defen- 
dants' agents  at  Halifax,  and  was  recjuired 
to  pay  the  freight  and  take  delivery.  C.  &  Co., 
also  demanded  and  received  from  plaintiff  his 
share  of  a  general  average  loss  consequent  to  an 
accident  to  the  ship  on  the  voyage.  On  examin- 
ation of  the  goods  previous  to  delivery,  it  was 
found  that  several  of  the  cases  had  been  tam- 
pered with,  and  a  number  of  bottles  of  wine 
emptied  of  their  contents,  (i.  K.,  by  whom  the 
signatire  of  S.  &  Co.  was  affixed  to  the  bill  of 
lading  at  Antwerp,  had  no  written  authority  to 
do  so,  but  was  the  f^hief  clerk  and  proxy  of  the 
firm,  and  acted  in  the  usual  course  of  business. 

Htld,  per  James,  J.— That  the  bill  of  lading 
having  been  produced  by  the  plaintiff  at  the 
retjuest  of  defendants'  agent  at  Halifax,  and 
having  been  recognized  by  them,  and  they  hav- 
ing demanded  and  received  from  plaintiff  his 
proportion  of  the  general  average  loss,  the 
papers,  whether  properly  signed  or  not,  must 
be  treated  as  the  contract  under  which  defend- 
ants received  iiud  carried  the  goods  ;  that 
defendants  were  bound  by  the  admission  in  the 
bill  of  lading  that  the  goods  were  received  in 
good  order  and  condition,  and  the  goods  hiving 
been  tampered  with  while  in  their  possestion, 
in  the  absence  of  evidence  to  bring  them  within 
the  exemptions  in  the  bill,  defendants  were 
liable. 

Per  McDonald,  J.— That  the  appointment  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  G.  K.  as  their 
chief  clerk  was  competent  to  sign  the  name  of 
the  firm  to  bills  of  lading  in  the  ordinary  course 
of  business,  without  any  written  authority  to 
do  so. 

That  the  signature  to  the  bill  of  lading  having 
been  proved  to  have  been  made  in  the  usual 
course  of  business,  must  be  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  defeniliiiits 
were  bound  to  bring  themselves  within  the 
exemptions  contained  in  the  bill  of  lading,  aiul, 
having  failed  to  do  so,  were  liable. 

Honne  v.  The  Montreal  Ocean  S.  S.  Co., 

7  R.  &G.,.S12; 
7  C.  L.  r.,  .STo. 
Affirmed  on  appeal  to  the  Supreme  Court  of 
Canada. 

12.  Foreign  principal  —  Liability  of-i 

foreign  principal  is  presumptively  entitled  to 
sue  and  be  sued  upon  contracts  made  Ijy  his 
agent  here,  although  the  name  of  the  principal 
was  not  disclosed  by  the  agent  at  the  time  of 
making  the  contract. 

Hardy  tt  al,  v.  Fairbanks  tt  al.,  James,  432. 

13.  Liability  of  agent  to  third  persons 
for  misrepresentation  or  assumption  of  autho- 
rity— Plaintiff  brought  an  action  for  the  price  of 
goods  furnished  to  defendant,  who  professed  but 
without  any  valid  authority,  to  be  acting  for  the 
estate  of  a  deceased  person  named  Riciiurda. 
Plaintiff  and  defendant  were  equally  aware  of 
the  death  of  Richards  but  yet  the  account  was 
still  kept  in  the  name  of  Richards,  who  had  in 
his  life  time  had  dealings  of  the  same  nature 
with  the  plaintiff. 

Held,  that  if  plaintiff  could  recover  at  all 
under  the  evidence,  which  was  doubtful,  he  could 
only  do  so  on  a  count  for  the  breach  of  defen- 
dants' implied  warranty  of  his  authority  to  act 

for  the  estate. 

Outram  v.  Doyle,  1  R.  &  G.,  1. 

14.  Power  and  authority  of  agent  as  to 

sale  and  purchase— General  obligation  and 
duty-  Plaintiff  left  the  Province  in  1838,  having 
'  appointed  M.  his  agent,  and  returned  in  1842, 
gave  a  confession  of  judgment  to  B.,  then  left 
again  and  did  not  return  until  18.'')5.     M.  ob- 
tained an  assiginnent  of  the  judgment  and  in 
I  1852  issued   execution.      Under  that  execution 
:  the  Sheriff  sold  the  land  to  M.    Defendant  had 
I  gone  into  possession  under  an  agreement  made 
by  M.  in  1846  to  sell   the  land  to  defendant. 
I  After  a  special  verdict,  a  new  trial  was  ordered 
to  see  if  M.  had,  whilst  acting  as  plaintiff's 
agent,  purchased  the  plaintiff's  land. 

Sviherland  v.  Whidden,  2  Thorn.,  410. 

15.  Principal  -  Liability  for  fraud  of 

agent— Notice  to  agent— Defendants  contracted 
with  plaintiff  for  the  purchase  of  a  steamboat, 
the  negotiations  for  the  purchase  being  carried 
on  partly  by  letters  between  the  defendant*  on 
the  one  hand  and  the  plaintiff  and  his  agent 


1117 


PRINCIPAL  AND  AGENT. 


Ills 


on  the  other,  and  partly  liy  verbal  eoiniminica- 
ticiis  between  the  defendants  and  the  plain- 
titf's  Hgert.  The  boat  was  delivered  at 
.Suimiierside,  Prince  Edward  Island,  to  the 
pliiiiitiff's  agent  (who  was  authorized  by  the 
(lefi'iidanta  to  take  delivery  of  lier  there  for 
them),  and  by  liim  taken  to  Pictoii,  the  doniicil 
of  the  defendants.  Tlie  defendants  examined 
lier  immediately  on  her  arrival  at  Pictou,  and 
finiling  lliat  she  did  not  answer  the  representa- 
tions made  of  her  by  the  plaintiff's  agent, 
forthwith  notified  both  the  plaintiff  and  his 
agent  that  they  would  not  take  delivery  of  her. 
An  action  was  brought  for  the  price,  to  wliich 
the  (k'fei\dant8  pleaded  never  indebted,  nevei 
delivered,  and  misrepresentation  and  fraud  on 
tlic  part  of  the  plaintiff  and  his  agent,  etc. 
Tlie  learned  Judge  who  tried  the  cause  permitted 
fviilence  to  be  given  of  the  verbal  representa- 
tiona  of  the  character  of  the  boat  made  by  the 
plaintiff's  agent  to  the  defendants,  and  the  jury 
found  a  verdict  for  the  defendants  on  the  pleas 
of  fraud  and  misrepresentation,  etc.  (jross 
misrepresentations  by  the  plaintifiF's  agent  of  the 
character  of  the  boat  were  distinctly  proved, 
but  there  was  no  proof  that  the  plaintiff  himself 
maile  any  false  representation,  or  was  aware  at 
the  time  of  those  made  by  his  agent.  , 

Hdd,  that  the  jury  were  justified  in  finding 
fraud,  as  the  principal  is  bound  by  the  declara-  \ 
t'ons  of  his  agent,  and  the  fraud  of  the  agent  j 
ftoa,  therefore,  in  law,  the  fraud  of  the  principal,  j 

Ptr  Young,  C.  J. ,  Johnstone,  E.  J. ,  Dodd  and  I 
DeBiirres,  JJ. ,  Wilkins,  J. ,  dUnentimj,  that  the  j 
notification  given  by  the  defendants  to  the  plain- 
tiff and  his  agent  was  a  sufficient  rescinding  of, 
the  contract,  and  that  it  was  not  necessary  in  , 
order  to  rescind  it  that  the  defendants  should 
return  the  boat  to  Summerside,  or  offer  to  return 
her  thither. 

Pope  V.  The  Pictou  Steamboat  Co.,  2  Old.,  18.  > 


16.  Principal-Obligation  of  principal  to 

third  persons— For  misconduct  of  agent— The 
captain  of  defendant's  vessel  purchased  a  quan- 
tity of  copper  from  plaintiff  to  be  paid  for  on 
delivery.  Plaintiff,  however,  delivered  the  cop- 
per to  the  captain  without  receiving  payment- 
The  defendant's  agent,  either  before  or  immedi- ! 
Mely  after  delivery  of  the  copper,  advanced  to 
the  captain  cash  to  pay  for  the  purchase.  The 
captain  fraudulently  retained  this  cash.  ' 

AeW,  that  the  owner  (who  had  received  the 
copper   without    knowledge    of    the    captain's, 
fraud  and  had  repaid  his  agent)  was  not  liable.     , 
Alvioii  v.  Tremtet,  1  Thorn.,  (Ist  Ed.),  89; 

(2nd  Ed.),  117.  i 


17.  Public  agents -Individual  liability 

for  breach  of  contract— Board  of  Health-- 
Special  finding  set  aside— At  a  meeting  of  the 
inhabitants  of  .Syilney  defendants  were  appointed 
a  committee  to  act  as  a  Board  of  Health,  in  con- 
sequence of  an  outbreak  of  smallpox.  They 
were  subsojuently  appointed  as  such  Board  by 
the  Lieutenantiftovernor,  under  chapter  '29,  R. 
S.  (4th  series),  and  made  a  contract  with  plain- 
tiff for  medical  services  while  the  disease  should 
continue  in  the  place,  at  a  fixed  rate  per  diun. 
They  dispensed  with  his  services  before  the  dis- 
ease had  been  eradicated.  In  an  action  for 
wrongful  dismissal  the  jury  found  that  _  ^,tiff 
did  not  know,  at  the  time  of  the  contract,  of  the 
appointment  by  the  Lieutenant-Ciovernor  of  the 
defendants  to  be  a  Board  of  Healtli,  and  that  the 
contract  was  made  with  them  in  their  individual 
capacity. 

Jltld,  that  the  action  was  ex  cmitractu,  that 
defendants,  whether  acting  intra  rires  or  ultra 
rires  of  their  authority  as  a  Board  of  Health, 
were  to  be  regarded  as  public  agents,  not  indi- 
vidually liable  on  the  contract  which  they  had 
made  on  behalf  of  the  public,  and  that  the  find- 
ings of  the  jury  were  not  warranted  by  evidence 
that  the  contract  was  made  by  defendants  with 
plaintiff  in  the  ordinary  way  in  which  a  contract 
would  be  made  by  public  agents. 

Verdict  for  plaintiff  set  aside. 

McKay  v.  Moore  et  a/.,  4  R.  &  G.,  326. 

18.  Purchase  of  goods  ft-om  agents  — 

Bills  rendf:red  in  name  of  agents  —  Suit  by 
principals— Defendants  had  dealt  with  H.  &  Co. 
for  some  time,  not  knowing  them  to  be  agents 
for  plaintiff,  but  considering  them  as  principals, 
the  bills  rendered  to  them  by  H.  &  Co.  being 
always  in  their  own  name.  Having  purchased 
a  quantity  of  plaintiff's  goods  from  H.  &.  Co.,  a 
bill  was  rendered  to  them  in  H.  &  Co.'s  name, 
but  subsequently  another  bill  was  sent  in  the 
name  of  plaintiff.  H.  &  Co.  became  insolvent 
after  delivery  of  the  goods,  and  defendants  did 
not  pay  them  for  them,  as  they  had  a  contra 
account.  On  being  sued  by  plaintiff,  they 
pkaded  the  contra  account,  and  paid  the  differ- 
ence into  Court. 

The  evidence  at  the  trial  was  contradictory  and 
conflicting,  but  the  jury  found  for  defendants. 

Held,  that  the  verdict  should  not  be  disturbed 
and  that  the  jwyment  into  Court  was  no  admis- 
sion of  defendants'  liability  beyond  the  amount 
paid  in. 

The  joint  payment  of  money  into  Court  by 
two  defendants,  under  the  indebtedness  counts, 
is  no  acknowledgment  of  their  co-partnership  as 
alleged  in  a  special  count. 

Baird  v.  Anderson  et  al.,  3  N.  S.  D.,  181. 


IIIP 


PRIVY  COUNCIL. 


1120 


19.  Belease,  by  agent  without  authority 

— Defenilunt,  I).  McU.,  being  part  owner,  with 
plaintiff  and  the  other  defendants,  of  a  ))ar(juc, 
was  authorized  l)y  the  other  owners  to  sell  her, 
and  did  so,  depositing  plaintitl"s  share  of  the 
proceeds  to  his  own  credit,  in  the  I'ictou  liank. 
I'laintiflf  wrote  to  one  S.  C.  in  these  terms  :  "  1 
want  you  to  put  my  share  of  the  money  in  the 
bank,  to  my  credit ;  I  have  written  1).  (mean- 
ing D.  Mel).),  stating  that  I  have  autliori/.ed 
you  to  do  so."  .S.  L'.  hatl,  before  liiis  letter 
came  to  him,  drawn  the  money  from  the  bank, 
the  manager  having  advanced  it  to  him  on  liis 
own  cheque;  but  defendant,  1).  Mel).,  upon  the 
letter  being  shown  to  him  by  .S.  C.  signed  a  , 
release  to  the  bank  from  any  claim  on  account  of 
the  payment  of  the  mi  ney  to  .S.  C.  I 

JJtld,  that  D.  McD.  was  not  justified  in 
releasing  the  bank,  that  in  doing  so  he  assumed  , 
the  liability  which  the  l)ank  had  incurred  !)}•  the 
unwarrantable  ])ayment  to  .S.  C.  of  tiie  money  ! 
placed  to  his  (McD's)  credit,  and  that  plaintiff  j 
was  entitled  to  a  decree  for  tiie  amount  of  his  ', 
share  deposited  in  the  bank.  : 

Jitijij-1  V.  McDonald  tt  al.,  R.  E.  1).,  17.  ; 

20.  Undisclosed  principal  —  Defendant ; 

bought  goods  belonging   to  plaintiffs  from  A.,  j 
their  agent,  A.  being   indebted  to  the  defendant  i 
al  the  time ;  defendant  testified  that  A.  did  not  ] 
disclose  at  the  time  of  sale  that  the  goods  were  ; 
not  his  own  ;  A.  and  his  bookkeeper   testified 
tliat  the  principals  were  disclosed  at  the  time  the 
goods  were  ordered,  and  produced  a  memoran- 
dum, headed  with  plaintiffs' name,  containing  the 
order  signed  by  defendant,  but  declined  to  pro-  ' 
duce  their  books.     Defendant  denied  that  plain- 
tiffs' name  was  on  the  memorandum,  when  signed 
by  him.     The  jury  found  for  defendant  for  .•*"'), 
the  excess  of  his  oftset.  The  875  was  subsequently 
remitted  by  defendant. 

//ikl,  that  the  verdict  could  not  be  disturl)ed. 
Bowmanrilk  Machint  Co.  v.  Ihmiintir, 

2R.  &C.,273. 

On  appeal  to  Iht  Snjn-etne  Court  of  Canada, 
//eld,  that  the  defendant  having  purchased 
the  goods  without  notice  of  A.'s  being  an  agent, 
and  A.  having  sold  them  in  his  own  name,  could 
set  off  tlie  debt  due  to  him  from  A.  personally, 
in  the  same  way  as  if  A.  had  been  the  principal ; 
and  that  the  verdict  should  ))e  sustained. 
The  Bomanfille  Machine  Co.  v.  Dcmjister, 

2«.  C.  R.,21. 

21.  Undisclosed  prInclpal-Rlght  to  sue— 

Sale  —  Misrepresentation  —  Estoppel  —  Plain- 
tiffs, who  held  a  bill  of  sale  on  a  quantity  of 
lumber,  authorized    its  sale  hy  M.  &    L.,  and 


assented  to  a  sale  to  tht  defendants,  to  wIkuii 
they  represented  M.  &  L.  as  owners.  After  tiie 
sale  and  part  payment  of  the  purchase  nioncy 
plaintiffs  disclosed  themselves  as  owners  ami 
demanded  the  balance  due,  which  the  defendants 
notwithstanding  paid  to  M.  &  L. 

JIM,  reversing  the  judgment  of  the  County 
Court  Judge,  that  plaintiffs  were  entitled  to 
recover  as  the  real  principals  in  the  transiictioii, 
and  were  not  e.stopped  by  the  representatidii. 

Weatherbe,  J.,  dis-toi/id,  on  the  ground  tliat 
M.  &  L.  were  not  shown  to  have  acted  as  agents 
of  plaintiff's. 

Layton  et  al.  v.  Smith  it  al.,  5  R.  &  C,  .Tjl, 


PRISOXER- 
Stc  CRIMINAL  LAW. 


PRIVILEGED  COMMUXICATIOXS- 
.Ste  DEFAMATION. 


PRIVY  COIXCIL. 

1.  Appeal  to  —Appealable  amount-In 

order  of  Her  Majcsty-in-Council  allowed  an  ap- 
peal from  the  judgment  of  the  Supreme  Couit 
of  this  Province  to  herself  in  her  Privy  ('inuKil 
"in  case  such  judgment,  decree,  order  w  sen- 
tence shall  involve  directly  or  indirectly  any 
claim,  demand  or  question  to  or  respecting 
property  in  any  civil  right  amounting  to  or  of 
the  value  of  t'.'lOO  sterling  (i!37")  currency)." 

The  sum  to  recover  which  the  action  was 
brought  was  l'.')40  currency,  but  adding  interest 
on  this  amount  from  tiie  date  of  the  writ  until 
judgment,  togetiier  with  tiie  costs  of  the  sia- 
cessful  party,  increased  the  sum  to  over  £'M) 
sterling. 

Leave  to  appeal  was  granted,  the  resjionilenl 
being   at   liberty   to   raise  any  (juestioiis  with 
regard  to  the  appealable  amount  before  the  I'rivy 
Council. 
Popi.  v.  The  I'ictOH  Steamboat  Co.,  2  01il.,  I7(i. 

2.  Appealable  amount— Costs  cannot  be 

added  to  make  up  appealable  amount— 

Si-mhit,  costs  in  a  cause  cannot  be  adileil  to  tia' 
amount  claimed  for  the  purpose  of  bringinj;  it 
up  to  the  appealable  amount. 

Burnxet  al.  v.  lilckardx,  1  N.  S.  1).,M 


U-21  PRIZE  OF  WAR.  1122 

3.  Ordering  Judgment  —  In  a  case  in  natidn,  Imt  us  the  property  of  niaiikiud  at  large, 
whitli  the  faut.s  and  law  appear  to  lie  entirely  an.l  as  lieloiiging  to  tlio  eoininoii  interest  of  the 
on.'  way,  their  Lordships  will  make  tlie  pre-  whole  species.  Restitution  of  the  i)roperty, 
sumption.'^  wiiieh  siiould  properly  lie  made  l>y  a  decreed. 

jniy,  witiioiit  sending  tiie  ca.se  down  for  a  new  j  The  Marquis  <l,  Somu-uihs,  .,',i,/  Cas, , 

'''•''■  .'Stewart    4S'' 

J)e.H/iar,-c,  ,,/  a/,  y.  Sh,  y,  -JS  L.  T.,  .".(fJ  ;  ' 

.,...,»«.,».«  Ji' u .  K.,  JT.j.      4.    Blockadc- 

V  .  EJECTMEXT,  ».  s.,  SHIPPIXC 

4.  The  I'riv)   touncll  will  exercise  its      5.    taptors    Misconduct  of  -  Belligerent 

,h..,.tMm    n,   deeding    a   ease    on    its   merits,    bringing  prize  into  neutral  port-Ti>e  rid.t  of 

It  p  e.u  nigs.  conduct   in    regard  to   the    captured   vessel,   lie 

Mch'u<  V.  Mrhay,  not  r, iM  Mo.;^  ^^_      ,,l,.,l,y  i,„t,  a,„i  the  vessel  therel.y  forfeited  to 
'•'•  '^•'  ■>  '  •  ^  •)  •^-<  ; ,  the  Crown ./»*v  roronw . 

•J!l  L.   I.,  ;),)'2.  ;      Alleged  lielligerents  who  have  violated   Her 
.      „,       „  ,  .Majesty'.^    jiioclanialion  of  neutrality  ;  grossly, 

.1.     The    Privy   Council    heard   an  appeal     wilfully    and  stealthily   violated   her   territory- 

' '  ""  '■'■'''•''•  "f  ^'"-'  •^"I'''i'"it.  Court  of  Nova  !  resisting  witii  force  her  ottieers  .seeking  to  exe' 

.Vntia,  setting  aside  pleas  ami  allowed  the  appeal    eute  the  process  of  her  Magistrates,  are  guilty 
(iiiiilitionally.  ,,f  ^^^^^^  ml.sconduct  as  rcmlers  any  prize  taken 

(J/..V.V,  .,,y  V.   Walla...  •_'  Old.,  ;»J),  ,  ,,y  t,,,,„,  ,,.,„  jf  -^  ,,.^,,,^.  ,,^„.f^,,,     ^.^^^       ^^ 

II  a/Inn    V.  JfrS>n.  ,„;,,  h.  R.,  2  V.  C.,  1S(..    to  forfeiture  to  the  (Vown. 

I'di;  MST  OF  CA.SHS  Al'l'KALKl)  TO  THK       "^'''  ^ '""''  ^*''"  ^^'"'1^^'''"'"  "<'  I'lca  on  l.elialf  of 
ritlVV  C'OUNCIL-.SV,   AI'l'KXDlX.  persons  .so  acting. 

The  act  of  a  belligerent  in  l)ringing  an  umon- 

dtniHul  prize  into  a  neutral  port,  to  avoid  lecap- 

ture,  is  an  ofl'ence  so  grave  against   the  neutral 
state  that  it  i/iso  Jar/o  suKjecls  tlie  prize  to  for- 
PRIZE  OF  WAR.  feiture. 

Till  (Jill III  V.  7'li<  Clu^iipiriLi  mill  Cxi'i/i), 

1.   A  claimant  cannot  recover  property  i  oid.,  Tjt;. 

tiiiijloycil  in  a  course  of   trade   whicli  is  against 

lhehnvs,,f  humanity  and  in  deliance  of  the  laws        «.     Capture  ~  LO.SS    Of  VCSSCl  Capturcd- 

'.tiiisown  country.  Claim  for  dama-i-s  upon  loss  of  vessel  Ky  shii)- 

Till  S.-ini,  .Stewart,  •.',S4.    ,,,,,,,^   ,^f,,.,  ^.,,,,t,„.^,_   ,ej,,,tc.d.   there  Im'iol'  no 

misconduct  on  tlie  jiart  of  the  captors, 

•>.  Ambassador's  ijoods    Captured  articles  77,,  /.„,,/o,  .Stewart, .-,.-,( ;. 

lii.liiii!.'iim   to  iiii   Amlia.s.sador  wiiicii    had   lieeii 

Am>^d  in   the   name  of  an  enemy's   c.m.signee        ;.     Certlllcates  Of  Origin -French  CCrtlfl- 

i.>loivd.      \s  nere  ca,.tors  refused  to  consent  to    ,.,,^,,  „f  ....j^,;,,  ,,^,,,,  y..^,,,,,,  ^,j  ....nliscation. 
R.tit«tu,n  the  Court  .hrecle.l  an  appeal  to  l.e        ,,rdcr  in   Council   llth   Xovemher,   ls.,7,   not 
HitHcd  on  lichalf  „t  the  claimant,  and  intimated    ,,.,„.,i,,.i  i,,.  „,,u.,.  „f  April  •."(i.h.  Iso-). 
ti.:.t.  upon  an  application,  it  would  deliver  the  ,  "  yy,,     .,^,„  ,.- .^,^,^  ,>,,^,„.,,,.,_  ._,^,, 

liHipeity  to  ids  agent  upon  hail.  ! 

Tin  .l//n)/('/r(,  .Stewart,  44'_'.         I!y   the  sul).se(|uent   ilecisit.ns  in  the  Court  of 

Aiijieals,  in  this  and  some  other  cases, 

i'  Arts  and  sciences  protected— Petition  JI'/'I,  that  tiie  order  relating  to  certilicates  of 
pMyiiif.'  tiiat  certain  paintings  and  prints,  \vhich  origin  was  repealed  liy  the  order  of  -JOth  Ajjril, 
"ere  captured  on  hoard  the  American  vessel  and  therefore  in  all  sulise.juent  eases,  though 
wlkd  the  ".Mariiuis  de  Somerueles,"  might  he  ,  certilicates  of  origin  were fre.jUently  fomnl,  they 
iWureil  I,,  the  petitioner  on  behalf  of  a  .scientiHc  ,  were  not  eimsidered  as  affording  gnmnd  for 
Wiihlislnnent  ut  I'hiladelplii.i  |  con<lemuation.  Stewart,  '2!)2,  ;/. 

Il^lil,  that  the  arts  and  suiences  are  admitted,  | 

""i"»«st  all  civilized  nations,  as  forming  an      8.     Concealment  Of  enemy's  interest— 

M'.iptinn  to  the  .severe  rights  of  warfare,  and  as        Enemy's  interest  concealed,     Shi))  ami  cargo 

'iititlcd  to  favor  ami  protection.     They  are  eon-  !  condemned.  Th>    !'(«».,  Stewart,  ]'2  ; 

^"'•■rcd  not  as  the  i.eeulium  of  this  or  of  that  j  Tin.  Hn-kimu;  Stewart,  17. 
30 


1123 


PRIZE  OF  WAR. 


1124 


Theciweof  7Vi,  I'i;m(s  was  uifirniuil  on  iipiaul      13,  Contraband -Iroii,  uiulcr  tlic  Swcdhh 

to  the  L<inls  of  Appfiil,  iiiid  tlio  upiiuUuiUs  cdii-  trealy,  not  toiitial.iinil,  llioiigh  ik'stiiud  to  a 
(leiiiiiutl  ill  costs,  Uh  FiliiHUi-ii,  ISc',.  iwt  of  imval  fiiuiiniiciit. 

The  case  <if  Th(.   lln-l.iiinr  was  aiiiiialeil,  Imt  i  Tlit  Ai'in,  Stewart,  .'.Til. 

tlie  appellants  did  not  pioceedand  tlieiiiliiliiti -n 

was  relaxed,  January  icih,  iSoS.  14.    Contraband  Of  War    Ship  and  fiirso 

njHiii    return  voyaj,'e  condenmeil  wliere  iniiti.i- 

tt.    Concealment  of  papers -A  letter  was  i.and  goods  wiucii  comiiosed  a  jyart  of  iiie  nu. 

discovered  written  in  synipatlietie  ink  on  boaril  ward  cargo  were  coneeulcd  liy  false  i)a])ers,  and 
a  vessel  liotind  from  Halliinore  to  Hourdeaux  tlie  relnrn  cargo  was  ol)taine<l  from  tlie  pnnwl^ 
witii  a  cargo  of  sngar  and  otiier  articles.  <if  tlicontwanl  cargo.     The  ontward  and  rtUini 

On  aitplying  the  proper  coinposiition  the  let-    voyages  were  one  unliroken  transaction  in  wlinh 
ters    liecanie    legilile,  and    it    was  fonnd    to   he    the  owners  of  the  vessel,  and  of  the  wliole  ciign, 
tiierein  stated,  that   a  paper  was  concealed  in    were  eiinally  imidicaled  hy  the  charter  party, 
the  liead  of  a  sugar  cask.  No.  'M'u  in   which  the  j  Tli<  Aramiiitha,  .Stewart,  47. 

real  state  of  the  property  would  he  found.     The 

paper  was  fonnd  and  sliowed  that  the  cargo  did  jj^  Contraband  -Ship  and  rctum  carjJO 
II. >t  belong  to  the  claimant,  hut  to  a  Frenchnmn  :  ^.,„i,ii.,„„i.(l,  ship  having  on  <mlwaid  voyage 
it  stated  various  fran<lH  in  accounts  current,  and  ^.^,.,.i^.ll  contraband  to  a  l''rencli  colony  iiiiiki' 
as  to  the  proceeds)  of  cargoes,  ivnd  it  appeared    fuj^y  papers. 

that  the  jjioceeds  of  one  cargo  were  to  be  used  i  Tht  Smmis,  .Stewart,  77. 

as  the  colorable  funds  for  several  retnrn  cargoes.  I 

It  also  sjK.ke  of  the  vigilance  of  the  abominable  jg^  Contraband  —  Unmanufactured  cop- 
Court  of  Halifax,  per  going  to  a  port  of  naval  eciuipincnt,  contia- 

Cargo  condemned.  The  siiip,  with  freight  and  l,iin,l,  condemned,  but  sliip  restored  with  t(i>t,s 
master's  adventure,  lestored,  tlie  master  not  ;i,„i  expenses  to  owner,  as  being  a  new  tiiioli'ii. 
appearing   privy    to  the   concealment,  and    the  Tht  Eu/ihiinia,  StiiWiul,  M.i; 

vessel  being  only  on  general  freight  and  without  j  'j'hi:  Jtriimkm,  Id.,  .■)7n. 

''''"   ''"'"^'  ^'''^''^'  ^^- '     n.    Contraband-Vessel  carrying  out  any 

Affirmed  on  appeal,  ^Uth  Fthruunj,  1S09.  contraband  articles  npoi.  her  outwar.l  voyage 

is  subject  to  confiscation  on  her  return  voyage. 
Till.  Uiiiliil  Stalt.x,  .Stewart,  llti. 


10.  Concealment  -Slave  trade-American 

vessel   concealed    under    Spanish    character  en- 
gaged in  slave  trade  condemned. 


Appeal  taken,  after  which  cajjtors  abamlune'l 
their  case  and  the  sentence  was  reversed  by  niii- 


Thi:  Mticid,  ^Stewart,  205.    gent. 


11.  Contraband-Copper  in  pigs  going  to 

a  [lort  of  naval  equipment  in  the  enemy's  coun- 
try is  contraband. 

Tht  Exiirtss,  .Stewart,  iOiJ. 

12.  Contraband  -  Colonies  of  enemy  In 

rebellion— Carrying  contraband  on  the  outward 
voyage  under  false  papers,  condemnation  of 
vessel  and  return  cargo. 

ArmiiKj  for  defence  against  French  cruisers 
lawful. 

St.  Domingo,  held  to  be  a  French  colony  in 
1805,  as  nothing  had  been  declared  or  done  by 
the  Briti-sh  (iovemment  that  could  authorize  a 
British  tribunal  to  consider  this  island  gener- 
ally, or  parts  of  it  (notwithstanding  a  power 
hostile  to  France  had  established  itself  within 
it)  as  being  other  than  still  a  colony,  or  parts 
of  a  colony,  of  France. 

The  Happy  Couple,  Stewart,  65. 

Affirmed  on  appeal,  J7th  March,  ISOS. 


18.  Contract  with  enemy- Commanders 

may  enter  into  contracts   with  subjects  of  the 

enemy,  for  the  sujjply  of  their  forces,  and  grant 

passports  to  protect  them  in  such  traiisacti"iis. 

The  Tivo  Brothers,  .Stewart,  .wl. 

19.  Declaration  of  war  by  the  United 

States— EflTect  of  seizure  of  vessel  for  infraction 

t  of  customs  law  before  declaration  —  Cannot 

I  after  be  detained  as  enemy's  property-Tlie 

I  declaration  of  war  by  the  United  States  diil  not 

[  place  the  two  countries  in  a  complete  state  of 

war  till  the  order  for  reprisals  by  the  Britisli 

(Tovernnient.     Order  for  reprisals,  13th  October, 

IHl'i.     An  American  vessel,  together  with  her 

cargo,  was  seized  in  the  port  of  Halifax  by  the 

collector  of  customs  uiwn  the  7th  June,  18l2,l"r 

an  importation  into  Nova  .Scotia  contrary  to  law. 

On  the  20th  June,  1812,  the  government  of  the 

United    States    declared    war    against    (!ieat 

Britain.      The   owners   of   the  ship  and  cargo 


112.-) 


PRIZE  OF  WAR. 


U-2(J 


fliiiniiMl  tlii'ir  rcspci'tivo  j)i<i|ii  rtii's.  It  was 
I'lmtfiiilfil  lit  tin-  lu'iiriiij:,  wliicli  tdnk  pliut;  nu 
the  ;{|>-l  .Inly,  ISI'J,  tliiU  tlif  iliiiiiiiiiits,  who 
Hfic  AiiK'riciiii  citi/i'iis,  wcix',  liy  tlie  ('.•  jlurii- 
lidii  of  will',  lic't'diiii'  fiu'init't",  ami  lliu  sliiji  and 
LiUf.'ii  I'lieiiiy's  iniipi'ity  ;  tliat,  tlieiffnie,  tlit-  I 
pull  its  were  ilis(|ualitieil  from  ii))i)eariiij;  in  a 
British  cdint  of  jiistiie,  ami  that  the  eollector  was 
lutitli'd  to  retain  the  ship  ami  earjio,  of  whieii 
ho  hud  the  Ixniii  n'l/i  possession,  I>y  the  title  of 
occiipaney,  as  lielonj^ing  to  an  alien  enemy.  ! 

Hdil,  that  until  the  King,  either  liy  express  I 
(krlaration,  or  liy  some  other  iiiaiiifestation  of: 
lii>j  iiiistile  intentions,  has  [daeed  his  dominion 
ill  a  state  of  warfare,  the  state  of  nnitnal  and 
ruii|iidi'al  hostilities   hetween  any  eountry  and  , 
tlu!    Jiritish    doiiiiiiions    oaniiot     legally    eom- 
iiR'iite.     When  such  manifesiatioii  is  made,  and 
iidt  liefore,  the  complete  legal  state  of  iiostilities 
exists  with  all  its  eoiiseiiucnces,  and  since  tlie 
iiKiiMiiit  a  man  lieconies  an  enemy  all  his  ante-  i 
a'ckiit  ligiits  are  annihilated,  it  must  of  coiiise  I 
npi'iate  upon  all  preceding  transactions. 

Tlie  suhjects  of  America  cannot  now  (."ilst 
.Inly,  1,SI2)  lie  considered  as  alien  enemiej  to 
Lvery  puriiose  of  law  ;  it  cannot  be  said  that 
they  are  disiinalitied  from  appearing  in  a  IJritish 
eoiirt  of  justice,  or  that  their  property  is  liable 
to  he  treated  as  enemy's  property  witlioiit  a 
sanction  from  tiie  i'.ritish  government.  Tliey 
may  possibly  be  declared  to  be  enemies  in 
fiitiiic  but  their  present  situation  is  ambiguous. 
If  tlic  whole  of  this  ease  turned  upon  this  point 
the  Court  would  direct  that  it  should  stand  over 
till  His  Majesty's  instructions  had  been  received 
tioiii  Kngland. 

The  slii()  entered  tin  port  and  was  seized  ' 
liefoic  the  declaration  of  war  by  the  United 
States,  the  subseijuent  detention  was  involuii- 
laiy  nil  the  part  of  the  owners.  Therefore,  if 
the  seizure  prove  to  have  been  made  without 
ivasdii  tiie  parties  wnulil  be  entitled  to  have 
tiieir  property  restored  in  the  same  state  in 
which  it  was  at  the  time  of  seizure.  If  the  seizure 
«as  improperly  made  the  owners  by  such  tortious 
possession  cannot  be  injured  in  their  rights. 

All  alien  enemy  can  appear  to  claim  property, 
where  tiiu  property,  as  in  this  ease,  is  not  liable 
iis  enemy's  property. 

The  Dart,  Stewart,  ,S01. 

20.  Enemy- Colonies  of,  in  rebellion— 

■^t.  Domingo,  though   in  possession  of  persons 
wiio  renounced  their  allegiance  to  France, 

fftid,  still  a  colony  of  France,  the  British 
'•overniiient  not  having  declared  otherwise. 

The  Hap/nj  Cou/ife,  Stewart,  65. 

Affirmed  on  appeal  to  the  Lords  of  Appeal, 
i^lh  March,  ISUS. 


21.    Enemy's  properly- Wlicrc  tlie  pro- 

perty  of  an  enemy  is  under  the  King's  protection 
'  he  may  ajipear  in  a  Court  of  law  lo  claim  it. 

■/'/(-   Darl,  Stewart,  ;«)1. 

I    '-''-'.    Flag  of  truce    .i  KrltLsh  slilp  of  war 

sailing   under   a   passport    from    the   American 
(Joveinment     captured     an    American     vessel. 
Kestitutioii    of  vessel    and  cargo   decreed,    anil 
captor  condemned  in  damages  and  costs. 
I  y/d    Zo'liwk,  Stewart,  .'{.'W. 

2.'{.    Fiirtlier  proof  A  cargo  totally  desti- 
tute of    proof  of    properly,  and   without  any 
directions,  not  allowed  to  go  to  further  proof. 
I  Thi  Ai'firi,  Stewart,  579. 

'24.    Furtiier  proof  can  never  be  allowed 

when  tiiere  is  no  ground  laid  for  it  in  the  original 
;,videiice. 
I  Till   Johuuiia,   Stewart,  !i'2l. 

1 

25.  Further  proof  —  Fraud  —  Further 

proof  not  allowed  to  a  claimant  who  had  been 
guilty  of  fraud  and  perjury,  in  a  recent  case, 
which  seems  to  extend  to  the  case  in  hand. 

'Thi'   Thnx  Jiroihirs,  Stewart,  99. 

Attiiincd  on  appeal,  Xori  mhi  r  ;JOIh,  ISOS. 

26.  Further  proof  not  sufficient  when  it 

did  not  explain  the  whole  transaction. 

Th<:  Fly,  Stewart,  171. 

Artirnied  on  apjieal  to  the  Lords  of  Ajipeal, 
ISth  July,  1S09. 

27.  Greenwich  Hospital— The  Provincial 

Law  of  Xova  Scotia  for  attaching  the  goods  of 
absconding  debtors,  no  excuse  to  prize  agents  for 
not  paying  unclaimed  shares  to  fireenwich  Hos- 
pital. 

Till  Bi  rmuda,  Stewart,  'I'M. 

See  ABSENT  OR  ABSCON&IXG  DEBTOK,  I\  .  7. 

28.  Joint  capture-Allegation  on  behalf 

of  claimants,  joint  captors,  conjunct  expedition 
also  actual  and  constructive  assistance  pleaded. 
Jidil,  not  proved. 

La  Furieune,  Stewart,  177. 

Affirmed  on  appeal  to  the  Lords  of  appeal, 
9th  May,  1811. 

29.  Joint  capture  —  Vessels  associated 

for  a  blockade  entitled  to  share  in  captures  of 
the  enemy's  property,  though  driven  on  shore 
and  seized  there. 

Tht  FlUjht,  Stewart,  559. 


1127 


PRIZK  OF  WAR. 


1128 


»0.     LCttCrM  of  marque  n^alnst  one  COUn-  ■  --patrlu.^  ..f  mi  Aml.ii.vsM(lur  ..f  tln'  .■unny  in  a 
try,  III)  luitliDiity  to  tiikc  fnnii  iiiicilliff.     MiiMt    iiiMitiiil  numtiy  tn  liir*  nwii  <  HivtMiiiiuMit,  luv  ii 
lit'  iiiiiiniiHsioiied  liy  tliu  AilliiifHlty.     (■.(iiiiiii.>(- j  violiitioii  "f  a  liieii> 
KJrms  friiiii  the  (lovi'tiior  of  n  I'lnviiifn,  vciiil. 


Tin  l.illli  Joe,  .'ml  tVivi,  Stuwiut,  M!I4. 


77(1    J/i  iini,  St. •Willi.  Isll. 


«tl.    Li'ttrrs  of  marque  and  reprisal    Veft-  ^. 

scl.s  fomrni.HsiciiU'il   )iy   llif   ( iovciiioi' of  iv  I'l'ov- 
iiiff,  witlioiil  Wiii-iiiiits  fioiii  tlie  Ailiiiinilly,  not 

ciititk'il    to   iniw   iimlci    tlif   pi limiiilioii    for 

(liNtril>iitioii. 

Th'   l.iitl,  J,„,  1^1  ('nil,  Stcwiirt.  .'IS'J. 


30.    LicenseH  no  protection  to  parties  not 

liiUllfil  ()!■  il»;.>ii'iili('il    ill   lIuMii.      Xo  ii\ci'|)liii|i  ill 
favor  of  liiitisli  siilijcL't.s. 

Till  Johiiiiiiii,  Stowail,  .VJI ; 
Thi  Ai'ili.  1,1.,  .-((i; 
Tin  CiiliH,  III..  .VJ.V 


40.    Llten.se    Tlie  eflTect  of  licenses  is  tu 

lie  (ludiici'il  fioiii  till'  iiili,'iitioii>  of  thf  (mimiii- 

32.    License -A  vessel  taklns  In  a  cars©  ^  ,,,^,,,j     ,,.,,^,y  .^,.^,  ,„„  „„,,^,,„i^.,i  uy  ,„  ,„.,i,,,  f,,, 

at  it  |)oit  on   liiT   iftiiin   f.-.m   LisWon,  not  pro-    |,i,„.i.,^,,i.,  nvIrmv  siuli  .loo.- not  aiipiur  m  1,, His 

tfc't.'.l  liy  a  liuen.Hu,  f.irfeilL.,1   for  .leviatioii  from     ;^,,jj,,^,y.„  i„ti.„ti,,„. 

tlie  voyage.  '  'I'll'   0//o/(,  Stc«  ,irl ,  1!I7. 

'I'll!    I:' II II I'li  ,  .StewiUl,  .V.'S. 

:W.    License    Excuses  for  deviation  from  /«•    ^^''*^''''     The  want  of  water  is  .,,, 

{."'itinmte  cvfils.'  for  a  ileviiition   troiu  a   liiwtul 
li(-eii>ifil  v.iyiiLje  not  proxcii.  ,  ■    .  .  .  .  ,    i  i 

■     -  '       ,„,      ,,  ,,       .  ..,_      v.iViiLTi',  wlifH'  it  inli'lit  liiive  liei'ii  iiriv.nt.il  hv 

J  In    /.'.//.,  .Stewart,  .).<,.        •  .  •"  "  •   i.,  , 

oiiliiiiiiy  priiiU'iKi',  or  the  inastel  niiglit  have  (ili 

:t4.    License  granted  by  an  Ambassador 

loan  eiii'iiiy  to  tra.le  willi   the   Krili.xli  iloiiiiii- i 

ion.s,  fur  the  .'iupiilv  <if  troops,  is  voi.l.  ,     ,      .     ■    ^  ..  i 

Till  sniii,  A,iii,  .Stewart,  .((IT.      ^'-J-    ''It'enses  to  trade  between  two  ports 

',♦'  the  enemy    Void     (  laimaiit.s   e\|i.UM-  al- 
lowe.l  iiiuler iiartieiilaiU  fax .iralili- .■iniiiiislaiice.s 

:Lj.    License  sranted  under  the  order  in    ,,  ,|„,  ,..^^^, 

Couii.il,  Sth  April,  l.spj,  aulliori/inj,'  eertaiii 
exports  and  iin])orts  froiii  Halifax  to  tlie  I'liiteil 
States,  not  vali.l  after  tli..  war  .■oiiiniei,.-..,!  witii         ^^^     ^^^^^^^^     _  ^^^    ^^,^^^    ^^^    j^,_    „^,,„,„„„ 


laiiu.l  a  stip|)ly  \\itliout  Muli  .U'viatioii. 

Tin   I'ilnrliil,  Stewart,  .'A'i. 


'/'//.    K.iliiilil'niii.  Stcuall,   4SS. 


the  I'niteil  States,  nor  reiiilereil  vali.l  by  the  new 

oilier  of  the  {."{'h   t)(tolier,  ISll',  wiiieii  diieeted 

licenses  to  lie  j^raiiteil  not  w  ilhstaii.liiig  stieh  war. 

Ijeeiises  fr.iiii  the  (ioveriior  of  N'ova  .Seolia  to 

the  eiieiny  voi.l. 

mil,  .Stewart,  44(i. 


Tin  !■:• 


iHi.ler  onlers  ill  ( 'ouiieil,    I'.llli    Nuveiiilnr.  iNHi. 

the  license  ealiliot  !»■  di-spensed  with.      Ki|iiiiaMf 

.•iiviiinstaines  .■aiinot    alone  for    the   want   d  a 

license. 

Tin  L'/i/ili,  Stewart,  \<*i. 


.. .     .,  ...        .  ...#.„      44.    Lic«nse    Where  the  license  liart  l)f  en 

:i«.    License  -It  Is  not  necessary  that  the  ,_^__,^_^,,,^  ,___,,^,,.  ,^  „  .^,,^,^^,  „|,„„  |„.,„„  .„  „,„ ,,,,, 

IK'is.iii  who  ohtaiiie.l  the  lieeii.se  to  e.xport  from  , 

..  ■     •  1       IT    •.    1    ^..    .  I       ill        the  ve.s.sel  was  restore.  I. 

(.ivat    Ihitaili    to   the    United   .States   .should  he  |  ,^,^^_   /.y, -/,,•/./,. I  »;/i,>7»s,  St.wait,  Ml. 

owner  or  actual  la.ler,  if  Ik^  ha.l  the  inanageiiient  | 
an.l   .lirection   of   the  ves.sel  with  respect  toiler'      ^.       j|j,rshal  -  taUKOt  giVC   up  pHZf  jOT- 

eniph.ynieiit.  ,,crty  without  an  onler  from  the  Coin  t. 

//(.   Alin.i'i'l,  Stewart,  .{.».).     •       •'  ,,       ,.     ,,    .  .         ^,  ,    .,,- 

.S,(oo/,'«-  /'i^/.'0»s  Slewait.  I-.. 

37.  Licenses  $;ranted  by  Mr.  Allan,  the  ,  . 

British  Consul  in  the  United  States,  /„/,/,  voi.l.      46.    Marshal  -Entitled  to  seven  and  six- 

Tin    ill  iraril,  Stewart,  470.     l'«l>i-i-'  '^  il'iy  f'"'  tl'^'  eiistody  ot  vessels. 

Tin-  Hi  rum,  Stevait.  .i>l 
In  the  case  of  Tin  Ho/n ,  the  High  Court  of 
Admiralty  conHnnod  the  validity  of  Mr.  Allan's  ;  ^^^  Possession  Of  Capturcd  gOOds  -I|t011 
licenses  19/li  Fihrnar,,,  ISI-l,  a  decision  which  ^„„„„i^^i^,„,^  „f  j^,,i,.,,j,  it  ,en,aiiis  with  lh> 
was  not  known  at  Halifax  when  the  case  of  Tin  ,  ^.^^^^^.^  ^^^  ^^^^^^^.^^^^  ^,,^  j,,,^^.^.  j^,.  ^t,,,,;,,,  „,,  j,,„„K 
Reward  was  decided.  |  ,j,,^^.  ^^^^^^^^  ,,f  ^,,^,  ^,^^|,t^,.,,  ^„j  claimants  are  not 

entitled  to  have  prize  gr.ods  deposited  in  tli'ir 

38.  License  -  Neither  carrying  common  ^^^^.,|  ,„,i^  .^^  8toie.s. 

letters,  extracts  from   newspapers,  or  the  de-  /,«  Mcrad,  Stewart,  -1!' 


ll'll 


PRIZE  OF  WAR. 


ll;JO 


4K.    I'rUc  Act      Thr  n>Kulnlion!t  in  the 

I'ri/c  Act  t'Xtfiici  cxinixily  I"  tlie  ('"liPiiicH. 

■/7(>   III nniiiUt,  StfWiirt,  -.SI, 

lf».    I'rlzc  Court     Instanrc  Court    Vlee- 

Adminilty  Court    Respective  jurisdictions  - 

.\>  .1  i'li/c  t'liuit,  no  Cniiit  (if  Acliiiiriilty  hiiH 
juii^'liitiiiii  in  rc\oniif  I'a.ifs.  As  an  Instiincc 
(unit,  wiiiili  is  tlu' ])rii|icr  triliniiiil  fm'  lauscs 
(pf  that  iiatuii',  A  ( 'cmrt  uf  VictvAiliniiiilty  lias  im 
aiitlii'iity  til  tai<c  cuj^nizani'c  (if  nfl't'iut's  I'lun- 
iiiititil  imt  within  tin'  limits  of  its  Imal  jnris- 
iliitiiiii.  ('rill'  jniisiliciinn  uf  I  lie  Instani'(.'( 'dint 
li,i<  ^iiii'c  ln't-'ii  I'Nti'iiilcil  liy  Act  (if  I'ailiaini'nt.  I 
V'/i'  Xio  'if'i  Si  ii(ir'(  l)il  C'triiii  II, 

.•^tcwail,  s;t. 

'lO.    Prizes  (Ivlained  u|)oii  tlit>  declaration 

(if  war  liy  tile  I'niti'il  Status,  anil  innli'l'  tlif 
Oiiliiin  Ciinncil,  .'ilst  .Inly,  ISl'J,  ami  nltiinati'ly 
npiuli  iiinid  ti)  the  Kili^K',  ,/'»*■'  'o/n/o' ,  as  haviiii; 
liii'ii  taken  ln'fiili'  the  ih'iUm'  fm'  :t|)risals,  cdnM 
iiiit  lie  siiM  Of  liailcil,  witlidiit  an  atithdiiiy  frimi 
tlif  l\iii_',  iinli'ss  in  a  |iiiislialilf  >latf. 

MraMnt's  taken  foi'  theif  preseiv  at  inn. 
/'f '.V/i./(  (ii'Sir  .liiliii   Wiirr<  ii  ii '(/,,  ."<ii'Wait,  .'{•.'T. 

.)l.     i'ri/,e  rorroitcd  Tor  non-compliance 

with  His  Majesty's  instructions  Tiiis  \vasan 
ii]i|iliiatidn  fur  edinlcnniatidn  uf  a  vessel  whieli 
liinl  lieiii  seized,  the  a)i|ilieatidn  lieiiig  niaile  nut 
"II  liehalf  <if  llie  eajitdr,  Imt  uf  a  persiin  tn 
«iii.iii  he  had  sdlil  it.  N'one  uf  His  Majesty's 
iii^lriictidii  relatini;  tn  ^iriieoedings  uiinn  pii/c 
hil'l  lieeii  dliserved. 

//•/'/,  that  as  lietween  (iieat  ISlitain  and 
iither  eiiuntiies,  whethef  enemies  nr  neiitial 
piiwris,  Courts  of  Adniifulty  are  estalilislied 
iiiiiler  the  general  c'onventiiinal  law  of  nations, 
iiiiil  of  parlieiilai'  treaties,  and  arc  liijiiml  to 
i-'Xfnite  the  same  impartiality  as  if  tliey  were 
iiMii|iosed  of  persons  entiicly  independent  and 
iiiKniiiKited  witii  either  party,  and  wiie  sitiia- 
ti'il  ill  an  indiU'erent  eonnti'v.  Thotigh  liierigiit 
til  ]iii/.e  is  given  liy  His  Majesty  in  his  pro- 
'•IcUiiiitioii  to  tlie  ea))tors,  yet  as  that  iiroclania- 
tii'ii  is  always  followed  liy  Aets  of  I'ailiaineiit, 
iiiiil  iiistriK'tions  proceeding  ffoni  the  same 
'iiitliHiity,  it  is  held  that  the  (lireelions  fur  pro- 
LWiliii^  ill  ease  nf  j>ri/.e  are  a  sort  of  ednilitioiis 
iiiiiU'Xed  to  the  original  grant,  and,  tlieiefoi'e 
llliU  the  iiiiii-oliservaiice  of  His  Majesty's  diree- 
l'"iH,  and  other  niiseondtict,  anionnt  to  a  for- 
fi'itiiiv  of  the  general  right  to  prize.  Vessel 
>'"iii|(iiiiied,  not  for  the  nst  of  the  captor  or 
piiiiiiaser,  Imt  to  His  Majesty  alisolutely,  not  as 
ii  'Imit  and  peri|nisite  of  Admiralty,  lint  jurr 
"iirmii,  as  a  portion  of  that  original  rigiit  to  all 


captnri'N,  which,   in  this  case,  from  a  lireach  of 
!  the    conditions   of     the   grant,    have    not     lieeii 
]  divested  out  of  him. 
I  Aft  Hiiiii  ill's  Aiiiii",  .Stewart,  !l. 

] 

'ii.     I'rizc  forreiled   for  miNConduet  - 

i  Taking  aw.iy   a   prize  from    the  custody  of  the 
I  Marshal. 

I      I'rize  forfeited   for  misconduct  of  the  captors 
{  in  so  doing, 

'/'/(.  f 'o<M(</-,  Stewart,  ,"i I. '<. 

53.     I'rize   money  -  Attuclinient  or,   in 

;  hands  of  prize  agent- 
s'    ABSENT   OK    ABSl'ONUINU    DKBTOK, 

IV.  7. 

51.    I'rize    i{iglit  to    A  prize,  before  con- 
demnation, is  ,1  trust,  and  cannot  lie  alienated, 
j  withont    the   consent    of   all    parties,   or   unless 
perishalile. 

The  Kinii  has  no  vcstcdriglit  tillcondemuation. 

'i'lic    King's    otlicers   and    lioards  of   service, 

have  no  right  to  purchase  w  here  other  persons 

have    not  ;     and    have    no    pre-emption    where 

sales  can  lie  made. 

Cases  of   pnlilic   necessity   for  defence   of  the 
'  ooMntiy  form  an  exception. 

'/'/(.  Ciir'iir,  Stewart,  .'il'J. 

an.    Prizes  tnlten  l)erore  tiic  order  for 

reprisals,  l.'ith  Octolier,  InI'J,  not  given  to  the 
,  ca|)tors  liy  the  order  for  dist  lilmtion. 

I  Til'  M'l/rn'iii,  Stewart,  'M'.l 

I 
I 

50.  Prizes  taiien  nnder  commissions  I'roni 

the  ( lovernor  of  a  I'lovincc,  without  a  warrant 
from  the  Admiralty,  not  given  to  the  eaptois 
liy  the  proclamation  for  distrilmtion. 

'/'/('  /.///A  .All,  Is/  Cn-i ,  Stewart,  .'«•_'. 

51.  Privateers      No  private  vessel  can 

cruise  against  the  enemy  Imt  under  a  lawftil 
commission.  The  right  of  granting  such  com- 
niission  is  the  right  only  of  the  Sovereign,  or  of 
those  to  whom  lie  has  deputed  it. 

'/'/(.   Ciirii  ir,  Stewart,  'M-l. 

5H.    Probable  cause   Captors  entitled  to 

costs  where  they  were  held  justitied  in  liriuging 
in  the  vessel  for  examinatidu. 

Thi-  Sloi-khnlm,  .Stewart,  .'{7i). 

59.     Pr<»bable  cause   -  Captured  vessel 

released  —  Costs  and  damages  —  Captors  not 
lialile  to  costs  and  damages  for  tiring  at  a  vessel 
which  had  shown  an  hostile  ajipearance  of 
resistance. 

Till   Frii  nil""  Ailn  ii/un,  .Stewart,  07. 


1131 


PIIOBATE  coruT.  Iin2 

llicilf  lpclictiri:il  111    llilll^<(•lf,   it    jx    lllcilf  (•'insi.stnit 


60.    I'nibable  caiiHe     ierllllralo  of  pro 

Idililf  fiuiHi' fi>r  tin    |ir.wciit(iiM  .Hci/iii^' It  Mliip  <>v  willi    the   pDlJcy  of  wiir  ami  tlic  Ipcii.'lit  nf  il 

cargo  iiiUMt  lie  giiintfil  ii|i<in  tlif  facln  iiii|iiMriiig  romitiy  li>  llt■^.1ll>y  it. 
uiMin  the  trial  nf  tin?  ciuisc,  ami  m't  uiimi  Mil) 
8CM|iii'iit  ivtJiilavits. 

It   i«  nut   lu'ci'ssiiiy  ti)  prove  llic  fact-*  u  liitii  ^  _. 

CTcatcil  a  ])Volial>lc  laiisi' to  have  licfii  UmiWM  at  lalti-r    nwoiv    that    lie    wii.s    not    aKle    to    .-^lure 

the  liiiir  of  Mci/uic.  liny  of  his  Huilois   to  iiiiiii    the   ini/.f,  \vitliniit 


Wlieif  a  vi'ttKt'l   wiiich   hml   waili'il  out  of  out! 
f  the  lilockadi'cl  poitM  nmc  raptuicd   l>y  a  vom'I 
(!ii>;ai,'fil  in  the  Mockacle,  ami  the  captain  of  the 


l'"alsL  papi'i't,  pi'olmlilc  lalisi'. 

Til'    Fiiiil',  Stcwait,  ll'J 


wcakfuinm  hi«  citw  so  imuh  an  to  injinr  tiic 
KiTvice  of  his  ve.HMfl,  ami  lieiiij;,  theiffori;,  iiiiiltr 
I  he  lifi'i'ssity  of  aliamloniliji  llif  prize,  he  arccplid 

61.    Proceeds  of  prlste     .IiirlMllHlon  of  -  -•"  '■'  ;'"";•>■  "'  '''"•7;"'  ^''7""'  "^'^  '""■ 

.1.....11...1     .1      l'i\l    tltl      tll'IVK     til     till'    I'Mlirill'M. 


ileiiilieil  a  lawful  pli/.e  to  the  ea)itof«. 

'J'lii    rniiin/  mill  Tlu    /'lainjll  lli'ij, 

Stewart,  ,".',♦. 


m.  Ke-ra|itiire    ilijrlit  of  owners   A(oiirt 


Court  — The  Court  of  Ailiiiiialty  has  the  power, 

vhieh   il    has   repeateilly   exerti.seil,  of  i>.-*iiiiig 

n\onitionM  to  ixMjiiiii' ptMMons  toliriiigin  .so  iiiueh 

<if    the   proceeil.H   of    prize   as    remain    in    their 

Immls,  as  havini;  the  posse^^ion  of  the  pioeeeils  . 

,          ,    .                          ,1,  , ,,    1,.,..,.   1 ,,   ,,1,  <if  prize  in  a  neutral  eountry  has  110  authority  tn 

))V    wiiatever    lueims    they    nia_\    lia\e    been    on-  'I                                                                                • 

,               ,       !■            II           .    .t..  lU'liver    a  vessel    lllMHi    oail  to  per.sons,  nut  tlie 

lained.     Captois  have  not  a  (hsiiosahie  property  'K-i'^i^'    axt....    ..|    .                    i              ' 

,         .,  1      f.i    .      .,  1    reDrest'Utatives  of  t  he  o\\  tiers  ;  anil  the  rij-'lit  in 

ill  thiiiL's  eaptureil,  or  the  proeeeils  ottheni,  lUiil    it.pi«-»i-'o""»  ^  •  ,,         ,, 

agetits  have  ....  right  to  selll.efo.e   li.ial  ailjuili-  <1>^'  """^■'■^   "I""'  n-..aptu.v  is   .,ot   defeated  hy 

cation.      Parties  can  lU.ly  acini.e  possessio.i  of  -'"'1'  'Ud.ve.y.                 ^^^^^   ////,/„,/..  .Stewart,  4(1. 

oaplured   ship  a.id   cargo  npo.i   hail  oi'  a.s   pur- 

chase...     If   they   aci,ni.e   as    pu„ha.se.«     they  ^,      ^^         ^^^^      j,^^,^,^^,   ^^    .    ^^^^  ^.^,„^ 

a.  e  aii.swe.il  lie  fo.' the  im.'ciase  money.       As  to  ,                                     en                  .    ;i    ., 

uiL  uii.s«.  1,1                      I                           .-  upon  the  ,'ross  amount   of  all  .iio.iey   pn.l  iiil.p 

Iiossession  of  the  p.oceeds,  they  aie  not  entitled  '            . 

*                                       .                                     ,               •  the  .eglslrv. 

to  it,  either  as   part.es,  agents  or   |iu.vliiiseis,  .n  '^ 

any  case  whatever,  hut  are  hound  to  pay   them 

into  the  registry. 

TIk  /Aiilmo;  Stewart,  P-'S. 


'I'll'   //ninii.  Stewart,  ."iS.'i. 


62.    ProceedliiRs  resportinv:  agents   ap- 
pointed  liy    the    (.'row. I   to    receive    Anierican 

property. 

Siiiiol.'"  /'i'/V/o/;s  Stewart,  4'J7. 

«:{.    Pure liasc  from  enemy    Nationality  of 

vessel— Ve.s.'^el  and  cargo  ])iiiciia.sed  from  the 
enemy  in  the  name  of  a  neutral,  li.it  leally  foi-  a 
r.ritish  subject,  held  lialile  to  co..tiscatio.i. 

It  is  estiililished  as  an  inviolalile  rule  that  any 
vessel  to  he  conside.ed  as  the  property  of  the 
country  w  hose  Hag  it  carries,  must  have  o..  hoard 
tlie  pape.'s  a.id  passiiorts  in  due  and  pe.fect 
form,  and  that  every  vessel  wliioh  shall  not  oh- 
serve  this  .'ule  shall  hise  all  right  of  inolection. 
Tin  liir^fara,  Stewart,  'A\ . 

64.  Kansom  Act,  22  Geo.  3,  c.  25,  and 

Pi'izo    Acts    do   not    exte.id    to  .■epu.chase.s   of 

ve.«sel.s  not  seized  as   ]irize.     They  extend  only 

to  vessels   captu.ed   in   war,  not  to  those  seized 

for  other  causes. 

Thi  Pdh-iot,  Stewart,  .S.'iO. 

65.  Kansom  when  JustiHable  under  Prize 

Act— When  a  civptor  is  unable  to  secu.-e  ii  prize 
and  send  it  into  port,  though  to  ransom  may  he 


PKOB.iTE  lOlHT. 

1.  Accounts    Power  of  Judge  to  rc-open 

— Theactingexecutorof  U.  H.  II.  and  tlic  ^aliniJ! 
executor  of  K.  A.  r..,  his  wife  (II.  H.  1!..  iiaviug 
been  executoi'  of  ('.),  made  ii  memo,  as  fulliiws: 
—  "It  is  mutually  agreed  between  ,1.  W.,  ilif 
"acting  executor  of  K.  H.  1'..,  and  niysilt'.  tin 
"acting  executor  of  Mis.  K.  H.  Ii.,  tlut  the 
"settlement  made  by  him  on  the  eighteenth  ihiy 
"of  December  hist,  at  the  rrobate  Coiirt  iU 
"  Annaliolis,  to  abide  the  dec.ee  the.,  iiiiulo,  lij 
"his  paying  over  to  me  one  hundred  iliiUais. 
"part  of  the  |)erceiitag"  or  commission  allciweil 
"  in  said  settlement,  which  s.n..  1  have  this  day 
received."       Sgd.      "d.  ( '.  T." 

,1.  C.  T.,  acting  executor  of  K.  A.  H.,  had  al- 
ways objected  to  the  settlement  .efeiicil  tn  m 
the  memo. 

Hilil,  that  the  memo,  did  not  estop  the  •Imli.'i' 
of  Probate  f.-om  ope.ii.ig  the  accou.its. 

In  >•'■  l-Ui<il>  of  lUiih,  -1  H.  ct  ('.,  ■*(«. 
i 

2.  Adjnlnlstratlon,  letters  of     How  iU- 

tacked— To  an  action  of  replevin  brought  hv 
plaintiffs,  as  administratois  and  administ.atnx 
of  .1.  K.,  defendant  pleaded,  anioiig  other  pli-a*. 
a  jilea  that  the  letters  of  adininistratimi  were 


li:!.*}  PROBATE  COURT.  1134 

null   iiiiil  vipjcl,  ;\M  liiiviiig  lici'ii  graiitt.>(l  liy  tlip  st.itfiiii'iit    lilcd  in   tlic  ii'i;iniry  of  tlic  i'ri)l)iitu 

.lii.l.'i' of  I'niliiitf  fill' tlic  Ciiiiiity  iif  ('iik'lu'Htcr,  ('niiit. 

vliiiias  .1.  K.,  n^  ilrf..|l.|iilil  iilli'Kt'il,  lit  llictiiiii-  I"  '■'   /-'''"''  i>/  Hoo/',   K.  K.  I)..  lli'J. 

lit  III-*  ili'iith  liiul  IiIh  ilniiiiril  ill  tlie  (..'oiiiity  of 

ciiiiiiiriiiiiiii.    A  v.Tiiiit  iiiiviii,!,' in'.^ii  foiiiiii  for     fi.   Appoal  from     In  nn  appeal  from  a 

|iliillll  Ill's,  ili'ffllillUII  luovcil  to  .set   it  ll>iili' oil  tllf  ilcilff    of   llii'    Court    of    I'lolilltf,     till'    SilpH'llli- 

u'loiiiiil  tliiit  tlio  JHsiit'  iiiiM'il  lij  till'  jiluii  iiliovL-  Coiiit  limy  allow  an  iiiiuiiiliiu'iit,  inMiiij;  ii  new 

ii'iitcil  wuH  not  Huliiiiitti'il  to  tliL'  jury,  yroiinil  of  uppfal, 

//«/'/,  tliivt   tilt!  JHHiie  WHS  iiir^|ielly  witliliulil.  In  k   Ktlnli  i;/' /,V(/.-^.j(,  "J 'riioiii.,  ,*?, 

Till'  .IiiiIl'I'  wIiii  trifil  the  ciisf  wiis  not  at  liliiTty 

l..,„l,„it  any  rviil..,,...  to  in.|H.uuli  the  valiility        j^     ^,,„p„,  fp„,„      j,.,.  jy^^g   „f  PfObale 

i,f  tl,..  IfttiTH  ot  ailnuniMiatnm.     If  lU^fciiiliiiil  ,,,,f„^^^^.,  ,„  ^,,,,„„  ,^„  ,,,,,,,.,^,  ,•,.,„„  i,;.,  ,i,,,,|,i„„,  „„ 

Hi>li.M  to   attack  till-  IfttciH  of   ailinini.itiation  ,|„,  g,,„„„i  ,|,,,i  tli,.  I.oinl,  altlimi^'li  in  the  fuiin 

hi-   i-miiiT   c.iir.s,.    was    l.y    apiiral  within    the  j^,;,.^.,,   j,,  ,i,e  Statute,  ili.l  not  state  what   ■.•auso 

tiiiir  prescriheil  in  tiie  Statute.  ^,.,,^  peinliiig.     The  appeal  wa»  then  graiiteil  l.y 

A'mt  ,1  „l.  V.  MrL,lh„i,  W  X.  S.  1)..  -,(.■_'.  ,,  _,,„,^,^,  „f  j,,^.  s,i))ivi>ie  Coiiit  at  C'lmiiilieis. 

Ill  III,  that  the  luiiiil  was  in  the  propei'  form. 

;{.    Adniliilstradon  Kriiiitod  to  a  debtor  of  /»  "  A'"/'  Av^r, ,  j  R.  \-  c,  isj; 

(li-ct'aHed     Associating  husband  of  next  of  kin  1  ('.  I-.  T. ,  (iti.'l. 

I'Ih' .liiilyi'  of  I'loliiiti'  j.'1-aiiteil  ailiiiinistratioii 
.if  Ihe  ileeeaseil  to  two  sisters  of  tleeea.seil  ami         8.     COStH  III  PrObatC  COIirl -I'pOII  prOOl' Of 

I'll"  "^hearer,  the  liusliaml  of  one  of  the  sisters.  testator's    will,    in   .solemn   form,   the  .Iinlge  of 

I  III  petition  of  II  lirother  of  ileeeaseil  the  letters  I'roliate  deureeil  that  it  hail  heen  duly  exeeiited 

iif    hhninistratioii   were  I'liin/elleil.      Anionn  the  and  he  mnde  the  eosts  payable  o'lt  of  the  estate. 

;'niiiiiils  set  forth  in  the  petition  of  the  lirother,  On  a|)|H'al,  the  ('oiirt  held  that  the  will  had  been 

wliirh  re.siilteil  in  the  eaiirellation,  it  w as  alle;.'eil  .shown  to  have  been  duly  e'veeiited,  and  thai  the 

tliiil  the  jietit inner  had  not  been  lited,  and  that  due   exeeiitioii    had    lieeii    proved   of   a  codicil 

Slii'iuer  was  indelited   to  deceased  on   iiiortgaj,'es  w  liich  operated  as  a  reiiiililication  of  the  will. 

iiml  otherwise.     Other  grounds  were    set    forth  The  appeal  was  therefore  dismissed,  but  without 

iipnii  which  no  evidence  was  adduced.  eost.s. 
//'/(/,   that   it    wa.s   not  necessary  to  cite  the        W'eatherlie,  .).,  (//sm //'''//;/,  as  to  the  i|',iestioii 

liftiliiiiier  when  the  administialinn  was  uiiiuted  uf  co.its,   considered  that   the  appeal  .should  be 

to  tlie  next  of  kin  (of  whom  the  two  sisters  were  dismissed  with  costs. 

II  niajority),  and  that   there  was  nothing  to  pre-  lu  n  Ktlnti  of  llorh  ,  .'!  H.  X'  ('. ,  ."i.")(». 

Vint  the  •Judge  of  Probate  in  his  discretion  from 

:i|ilioimi.ig  a  mortgage  debtor  of  decea.sed  and         ,,^     (.„j.,j.  „„  cOlltOStatlOII  Of  Will,  directed 

11.1  iibjection  to  a.ssociating  the  husband  of  one  ^^  ,,e  j,j^ij  q^^  qj-  g.state. 

"f  till'  next  of  kill  in  the  iidmiiiistration  at  their  j^  ^.,  I'.^tttli  ai'  /'im     ,S  11    .V  ('      .Sn7. 

ll'l|lU'Sl. 

'."'"■»•',   whether  the  .liidge  can  revoke  letters        Costs  of  appeal  from  Probate  C.mrt  given   to 

"f  ihliiiinislration  luioe  granted  for  any  reason  ^,,y  j,,^,.jy  j„„,^.^,.,.,f,|i    j,,   that  Court,  exce|.ting 

"thci  than  tho.se  nieiitioncd  in  the  Statute.  ,.,,^(^  um'iecessarily  incurred. 

1,1  n   Ilatihi,  .-.  R.  \  <;..  .ST.-..  /„  ^.,   !.•,,„,,  o/Shur-^iHi.  .-i  R.  >*e  C.,  .T.T. 

4.  Appeal  Itom  -  Costs  where  appellant      »«•    ^"s'**    ""'«'•  »"»"'"»  »P«'«"l  f»"'  » 

partly  suece.saful-Appeal  from   the  Judge  of  Judge  of  Probate  in  a  matter  relating  to,  set 

1'iol.iU,.  havinu  been  dismissed,  costs  were  with-  a.sido-  -Probate  Act,  5th  R.  S.,  c.  100,  .^.  64- 

lit'1.1  liecau.se  ^he  .Judge    had    improperly   con- i  *'^»    '•^'   /'«'•'<' <"''ler    was    made  by    a   Ju.lge  at 

'Icniiu'il  the  party  who  appealed  in  costs  us  to  t'li'i'"''^'-'''  allowing  an  appeal  from  the  decision 

tlK" testation l".elow.    In  r,  Simp^ov.WK.  kV.,  "*'  '^'''"'^'^'  "^  '''"'•^^t'--  ''I'l^'^"'.^  '"  '^  '"^'"'^''  "f 

-:.  and  In  ri:  Hiirmmn,  3  R.  &  C.,  ;W(i  dis-  '-'"^t-^  =    ^he  attenlioii  <,f  the  .Judge  who  grante.l 


tiiimiii-heil 


the  order  not  having  been  called  to  the  Probate 

AV  A,V.   11'.  McKilli.ian,  4  R.  &  (1.,  49G.    •^^•^-  '''^'  '^-  •^-  ^'^  '"•*•'  ^-  "•^'  "'"'»-■'•  "■''''^'' ''  1"^'^ 

I  dissatistieil    with    a    taxation   of  eost.s,  or  order 

relating  to  a  matter  of  costs,  is  enabled  to  apjily 

•"»•    Appeal    from  —  On  appeal    ft*Oin   the    to  the  Court  or  a  Judge  at  Chambers  for  a  review 

I'loliiUi.  Court  the  Court  will  not  consider  other    of  such  taxation  or  order  without   perfect'.iig  an 

gioiiiiils  of  appeal  than   tho.'^e  contained   in  the    appeal. 


Ill'ill, 


11  a:,  PKOHATK  CX)URT.  li:it; 

Tlif  finlcr  ii!lM«inK  tlit>iii>|H.Mil  wiv«  ni't  ivhIiU' ii-t    K..  hIhoh  .ii'iiit.ir,  Init  mily  ii>  a  miiiuII  aiiioiini, 

imiiri.vi.U.iitly  Kiaiitnl.  cluiiiiiiij,'   timi    tl.r  apiM.iniiii.ni   nf  T.   ,1.   W. 

/,'-    /,Mn/o.i',  •Jil  N.  S.  U.,  (M  |{.  \  (;.),  ;f.'<i:    wcMilcl  lie  j.ifjii.lii'iiil   tc.   tli.'ir   intfri'-ttH,     llu' 

IM',  L.  'I'.,  7.    .Iiiilni'  (if  I'lolmtu  iimili!  ii  iltrruu  grimliii^  tliu 
liiiiyw  nf  fill'  Iiittor  |)ctilii'ii,iin  tlii'  Ki<iim,l  ilmi 

11.  CoslH  In  Probiite  procwdlnKH   Tt'sln-  '^  M.aj..rit,v  ..f  tiw  cvv.Uwvh  ..f  ii,..  imvMat,.  i,„i 

tin'H  will  was  atta.k.'.l  l.y  llif    IiusI.vh  ..f  tlif  joim..!  in  it,  .iii.l  llmt  tiir  .uii..iiiitM  ..f  tluir  ,  innn 

.M..|li."list    Chuivli,    »;u:;^l.nr..    (to     uln.m     tiii'  la.Hfly  oxcfi-.l.'.l    that    ..t    liiu    liixl    pHit i. 

t,.Htal(.r   l.a.l   li'fl   tlio   ImlR  nf   Lis   ••Hliil.'   I'Y  a  Krom   tiiis  .li'iiw  an  ap|.eiil    wan  liik.ii  In  il„. 

pnviniis   xsill),  nn  the  K'-'iii.!  Hmt  un.luo   an.l  .Fu.Iko    in   lv|iiity,  l.y  wli'.n.    tl.f  .Uhut  n|  tl„. 

in,,,rn|Kr  inllm.iKTK  ha.l  lim,  nM.M.     Tl.u  .Iu.Ik..  .Iu.1«c   nf    IVnUati^    was    amniu.ci.       I'rnni   il,i. 

nf  I'lnUatc  .Uri.lr.l  that  s.u  h  inlliii'noc  Im.l  nnt  .K-iHJnn  a  fmtlur  appual  wan  tivkon  In  ihr  full 

hern  nm.lonnt  with  Hiilliuifnt  .■Ivamrss  tn  avni.l  Cnuil,  which  was   ,..|nally  divi.lf  I    in  npj 

tho  will,  an.l  .liiTctcl  the  co«ts  nf  all  paitic^s  tn  .Inhnstnu...  K.  .1.,  an.l  D.hI.I  .1..  UnhUu^:  ih: 

I...    pai.l  ..ut  ..f  tho  uBtato.      Tlu'  .lofivo  as  I..  app..intMU'nl  was  .lisLTcli..naiy  with  the  .1 

...sts  JiavinK  l..>i'n  appralnl  tV th.'C.urt  lu'l.l  "f  I'mhat...  an.l   Dosltanvs  an.l  Wilknis.  .1  ,1.. 

that  tiu'  Ju.lgi'  .if  lV..l..iH>  ha.l  n.,  p..wur  tn  .U-  l...hliii«  tl>"t  T.  .1.  W.,  h.'inw  a  piinripal  ri.Milnr 

creuthuvayniunl.if  ..•..sts  ..iil  ..f  tlu'  .'statf,  an.l  an.l  tho  liist  applicant,  was  h;.'ally  .•ntit:.,l  i„ 

cniil.l  nnly  awar.l  thcni  t..  I.c  pai.l  hy  thf  party  a-lininisiiali..!.   in  .Icfanlt   ..f  a.vcpian.v  hy  tl;. 

a^,'ainsl   wh..ni  his  .h.isinn  was  n.a.K',  hut   that  parties  pfinmfil.V  fntitlf.l,  an.l  that    il   wiis  in- 

this  C.mrt  .m  review  .•.ml.l   .liiivt    what    f..sts  cnnihent    ..n    th.'   .hi.li;.'    ..f    I'mhat.'   I..    1m\.' 

shniil.l  li.'  an..wi!.l,  an.l  iVnui   what   fiin.l.      Thf  app.Miitnl  him. 

paiti.s  wcfo  aucnnlinfe'ly  .li.wte.l  to  pay  their        /'. /■.Iniuist.me,  K..I.     •riielSant  l.einu  ..lu,,!. 

..wn  .'nsts  up  t..  th.'  time  ..f  the  .leeiee,  ami  the  ly  .livi.le.l,  ihe  ,in.lf4ii..nt  app.'al.M  ai,'anis|  hum 

app.al  was  siistaine.l   with  e.ists  tn  li(^  pai.l  hy  stan.l. 

the  trustees.  ^"  '''   ''''''"''   -"^"l''''"'  /''■'"■'".  I   N'-  ■'^-  1>.  ■'■!'"■ 

1(1  ;•'    llijl'i  niiiii  L'^tiih,  :<  1{.  »^  ('.,  4.S((. 

U.    EslaU'  of  (h'ceast'd  parlin'P  lu'ld  lia- 

12.  DlscrelltHl  of  JiI'IkC  of  I'roblllC  The  l,le  for  unpaid  balance  after  lapse  of  tbuivtais. 
graiitinj.'  nf  a.hninistratinn  'A  IkuiIi  nun  t.>  the  the  cHtate  not  liaviny  heeii  settled  and  na  pre- 
wi.l.iw  ..f  the  .lecease.l  was  appealed  fmni  hy  his  judieeaiipearin^f  -Laches  Novation  I'arties 
ilauglitef,  nn  the  ^I'.iun.l  that  the  a.lministiatfix  to  proceedinyx  in  Court  of  Prohate  DctiiU'f 
ha.l  lieen  ^.'iiilty  nf  waste  nu  the  lan.ls  Mt  ..tf  t.>  of  non-presentment  must  be  rai.sed  by  answer 
her  as   .l.iwcr.      It  ajipearcl  frnm  respnmlcnt's  (,,.  counter  allegation     I'lainiill'  .le|insiii.l  tin' 

alli.lavit,    that,   whetlier  her  acts    ainnuute.l   tn  ;,„,„  ,,f  S!I4!I..V>  with  the  lirm  .if  W.   I.  ^  N'li  mi 

waste  nr  not,  sh.' c.iusi.leied  herself  justitie.l  hi  which  intci'cst  wiis  pai.l  annuidly,  ami  i.rcivi.l 

the  c.iarsi'  she  ha.l  pursueil,  .i.s  mi   a.'kunw  !e.l,Limeut   the  |)rniiiiss.iry  nnii'  i.t 

//./(/,   that  as  there  was  untiling  to  in.lic.ie  ,|„,  li,.,,,  f,„.  the  am. Mint,   ital.'.l   .luly  Isl,  |s7i;. 

siuh   lli^il.luesty    nn    the  part  .if  the  wi.l.iw  as  |,„yalile  niie   mniith  after  .late.      \V.  I.  .hi.l  iii 

shniil.l  jireclii.le  her  frniii  all  right  tn  tiie  a.liiiiii-  ),ily.  |,sst»,  after  which  the  business  nf  tlic  tinii 

tratinn.   the  Cnuit  cumI.I  imt   cnntrnl  the  .liscrc-  ^^--i^,  ,.,,iiijinic.l    byC.  I.   the  suivi\  iiig  |Mitii.i. 

tinn    c.iiiferre.l    by   the    .\ct    nn    the    .lu.lge    .if  wim  was  als.i   executnr  .if   the  estate  nf   llic  .!.• 

rrnbate.  ceasc.l.      In  .Inly,  IsS'J,  ( '.  I.  wrnte  in  ihc  \u\\w 

In  rr  l-:.l„h  n/ l,'no/,,  1!.   K.   D.,  UV2.  _j.   ,|,^,  ,i,.,„  t„   ,',l„i|,iitr  euchiHiig  the  ain.Mint  ,.l 

interest  then   i\nr   nn  the   mite  and  siigj.'i>tiii.' 

i:{.     nisCrCtlOII  <»f  .IllrtgC  of  Probate    -T.  J.  that  if  plaintilV  c.mclu.le.l   t..  aUow  the  ui.imv 

W.,  a  bairister  claiming  t.i  be  a  principal  cre.li-  t.i  remain  in  their  iiaii.ls  he  had   better  liiive  tln' 

tnr  ..f  .Mis.    15. ,  wiin  .lied  intestate,  apjilie.!  by  note  renewe.l  as  it  wnuhl  be  running  six  yivu- 

petiiinii   t.i    til.!  .Imlge  .if  I'mbate,   praying  f.ir  the   fnilnwing  duly  an.l   there  was  some  <M<l 

lelt.;rs    nf    admiiiistrathiu    <m    her    estate.     .\  whether  .ir  m.t   the  payment  of   interest  w.uiM 

citation  was  thereupon    issue.l    an.l    puldishe.l  keep  the  imtc  in  f.irce  over  six  years, 

oalliiig  upon  the  eru.litors,  next  nf  kin,  an.l  par-  In  eoiise.iuence  of  tiiis  plaiiilitf  .lelivciLMl  u|i 

ties  interested  in  the  estate,  t<i  ajipear  ami  sh.iw  the  .iriginal  ii.ite  ami  receive.l  in  retmn  ^  m« 

cause,  if  any,  why  a.lmiuistratioii  .sli.mhl  not  be  note  similar  in  all  respects  except  the  .liitc  ^lU'l 

gnmted  as   piaye.l.      On   the    .lay    ai)pninte.l  a  a  slight  .liflerence  in  the  amount.     In  Fehnwry 

petiti.m  was  presente.l  .m  b.'half  nf  a  number  nf  1SS4,  C.  I.  faile.l  in  business  an.l   plaiutilfliM 

persni.s  claiming  to  be  credit.irs  .if  the. leceased,  an  attested  claim  against  the  estate   <if  W  ■  I- 

praying  that  adniinistrati.m  be  grante.l  to  W.  the  .lecease.l   partner,  for  the  balance  .hie  Im". 


ll:«7  PROMATK  COFRT.  HMS 

t'l.iir  yi'iiiH  li.iviiij;  .liiiiMcl    Niiirc    thr    ili.ith    ,,f  rinliMt.- is  imt  jiiHtilicd  in  lif,itin>;  the  ju.lgiiuiil 

^^  •   '■  .iH  ,1  iiiillily. 

Ihhl  (\).  TImt   iiLiiiiiitlwiiH  ciititlril  tiM'ljiiiii         /'w  Doilil,  .1,  -  •I'll,,  jinifnil  pt  iiu'iplc  is.  thai 

iiUiuiict   flif  I'HtJitf  ..f  ihc  ilcToiwoil  partner,  not  jihlt'iiifiilH  aio  valiil  nntil  hcI  uhIiIc  in  the  Ci.iirl 

wiilistHiiilin^'  \\\v  il.liiy,   llir  cMtMtr  ni'l    liiiviii).'  in  wlii.li  ilicy  mi' ).'iv«'ii. 

liiiM  ■..ttlfil  ill  tlif  I'lciintiiiK',  Mild  it  nnt  iippiMi  lit  ,-•  H^tui,  v/  Mmy  y,l^iiit,  '1  'I'l i.,  I. 

liii;  tliitt    tlliiHi'   iiitfii'.'-tcil   IiikI    Iii'i'ii   ill  iiiiy  uay 

'",',',"!■!';      ...  ,        ,    .  n.    .liKlk'nicnt   m-ftrdiMl   In   lin>tliiM>  or 

I.I.    I  iiiit  III  till' iilisciici' III  iH'iiiil  lit  an  rxnioH  ,i    .  „  .    i       v  a.   ^      i     i        i.        ■        .    .      ,. 

,  .„  ,   ',  ,        '  (Ifci'ftMfd       Estiite  (lei'laivii  lUHolvfiit  in   Pro- 

T;"""  """;;"'■•••.  tli.'f-tHand.. 1,1...  h„te   Court       Exec-ution    tnav    iHHue   a„.l    ».e 

.      1,.'  par.U's  wnnd  not  wamint   tlu' infi'ivn, .'  ..f-nd...!  on  land  hot.n.l  hv  it-   Balan...-  du.- 

.1...    |.  utmrt    ,n  .ak.n,'  ,hi.  iilw  M„t.'.   infmli'd  ,„^,.  ,„.  ..j^j,,,,.^,   „„^  „,.       :^„„,^,  ^^^^,.^^      ,,,.,, 

'";';"';,"■*■"'   ' '•"""  "f  ""• ""^•■''  I-'""'"''    R.  S,.  ...  127.  H.  70  -Cf.  Bth  R.  H..  <•.  100,  h. 72  - 

(.11.    llial  tlii'ii' wax  nil  siirli  iiitini  hut  imi  nt  ii     ii-i i.   i  ,.     .  ,    i         i  i    i  i    i    . 

,  .        11    I  ,1     \\  |,,.|,,.  II  jiHij/nii'iil   liMH   iii'i'ii  iliilv  iri'iirdi'd  in 

"iniiij^cr  mtii  till'  iiiiitiai't,  or  ni'w  ti'iiii  III  run-    .i...  iji' ,  ii...      t       i             i         .      '     ii-        .   . 

....                       ,     .  till'  litr  linii' .it  a  ili'icascil  pail  v,  and  Ins  r.-tati' 

ililinii     iin"irpiiratii       mln  il     ,im     tn    I'li'ali.    a    i         i            i     i        i     •        i            i          i       .,     , 

'  has    lii'cn    ili'iland     insnlvi'lit    hv     thi'    I'lnl.ali' 

iiiiviitiiin.  ,,                            .                            ,'    ,        , 

,,,    ,,.,         ,      ,,              ,  •  "Mil.  an  t'Xi'riitiiiii  niav,  ni'Vi'i'thi'li'ss,  111' isMit'd 

III.    I  lial  thi'  (  iiiiit   lit  'ill  lati!  had   inrisdii'-                 i     •    i           ,         " 

,     .,            '                  I'll    siiili   iiidj..!int.nt,   mi   a  pnipii'   siil'l'csIiiiii  nt 

tiiiii  t"  ilciidi'iiii  plamtitt  s  I'laini,  niitwithstaiid-    ,•.,„,      „  ',,,      „       .,  .     .    ,. 

,         ,  I    .  tarts    i.n    tn«.    rcrniil,  aL;aiiist    Ins    cxciiitipr    or 

111-  that  till' siirviviiij;  partner  was  lint    iiiadi'  a  .,  i,,,;,,:  , i  „,  i  .       i     i        i  .i 

,  ,.     '  ailiniiiistialor,  Imt   laii  In'  I'vlriiili'd  milv  mi  tlit' 

|iillly  111  till'  pliiri'i'din.'s.  11111  1     •      1 

,,  ,'  ,    ^  land  limind  hv  siuh  iinUiiii'iil. 

',''"('/•'.  Willi  hi'i'  I  hi.  siirvivim,'  pail  iiir  iiiiild         ,,•    ,„,.  ,    , '„      .    ,      ■       i       .  i     •    i 

I  ,  ,,  ""   '  It   any  lialaiii'i'  ri'liiaiii   iliii'  In   sii.h    nidL'iiiiiit 

I'l' mull' a  jiaiiy  111  iiriicfui  iiii;,s  111    lis  iiwn  liLrhl.      ,.    i;.    „      j.   .,  i        f   .i       i       i  i  i 

.,    ,,,,         ,  '         ,.  .    '^  .  I'li'ditor,  aftff  a   sale   uf   tlir    land    iiiidir    muIi 

(.11.    I  hilt  there  uas.siillni,.|it  evidiiiri'liii'stali-  .....il..    i       ;  .-.i     i    .        i    ■        .  i        .■ 

,■,.,,.  .   ,  exeeiitiiiii,  he   is   eiilillid   In   claini    llieietnr  mil 

Ibll   the   elaini    Wllhnlit    i t  nt    pi  i'mIiI  nielil  ut  f.i       .  i  .        .•  .  i        i  i  i  i 

,,  .       .  .1         ,  ,  .  '  lit  the  pelsnnal  assets  lit  the  deieased,  niidei    the 

till' liiite  at  tlie  pluee  where  It  was  made  iiaval.le.  .■         .'-,,{,1,1 

I    ....     .  '  .  '    •  •  pri'MM'.lls    nt    seetion    ,0,    nf  the    rinliite    An. 

I'lil   It    that    were   iieeessarv  and    the  e.xeeiitms  ,.,,.,  •,   ,.    ^,    .  ,,,-1 

.  I     ,  ,  ,  •  (.liil  lve\.  .>lats.,  I'.   !'_',). 

\VI»liid  In  rely  nil  siieh   a  detellie    it  shnllld    have  ,.,,.)    i.     ^  i.i-  -i>  -.1     1.       . 
1     ,        .      ,   ,                                                      .,                        (.il'l    l>.  >..  ■'.    l-i,   s.    ,M,  same  as  .ith  !!.  .•>., 
II  liilseil    liy  an   answer  nr  eniinler  alle,i.'al  imi    ,,    ■,„,    ^    -.,  , 

wlii.li    llie    praeliee    nf    the    Ciiiiit    nf    j'rnliate    ''         '  ^'   '"'  ,.  ,  ,,,,,       .... 

11  1,111-riiiri  1    V.   l*iiiii\    I   Old.,  (iSd. 

lllnws. 

I!'   Iv^tiil,    In  1,  i.r  /nirfi   ( 'iiw/i/n //, 

7  1;.  .V  (i,  MIS;       IH.    .rtirlsdicHoii     .\|)|H>itl  — Costs     IVr- 

TC   r..  '!".,   I  Hi.     ^mial    pln|ieity    devised    In   exei'iitnis   fnr  a    piir- 
pnse    whii'li    fails    iiiiist     lie    di^l  riliiiled    liy    the 

l.».  liiV(>iitor.v    Power  to  order  addilioiial  ''^""""'i'^  " n,' iiu' next  nf  kin. 

items  to  be  inserted  -  The  .liidu'e  nf  I'rnliate  '^"''''  'l'«>ii'i<ni"i>  i-*  within  ihe  jmisdii'iinii  . if 

liiis  till'   pnwer,   afler    hearing'   evidence    mi   the  ''"'   l'i"liate  Cniirl. 

t'.i'ls.    In    mder    an    exeeiitnr    nf   administi  atnr  The  .><ii)ireiiie  Conrt  mi  n]iiie,il  finiii  a  i'mliate 

til  imliide    in    the    iiiveiitory,    as    |iiiiperty    nf  • '"""'t  "iH  t'M'i'<'i**<'  11  «li-''i'i'i'ti'iii  as  to  ensts,  and 

ilt'iTiisi'd,  aitii'les  elaimed  liy  other  parties,  Imt  ^*''"  '"  >-'«'"f''il  j-'ive  eosts  against  a  party  tinnee- 

li>'tii t  reiiuiru  the  exeeiilnr  nr  adminislralnr  ''■'*-'""''.\'  ""I'kini.'  or  resistin../  a  elaim. 

t"  swear   to   an    inventory    thus    amended    Kv  I'^^'d''  «j  Ah  xniiih  r  MrDoiialil ,  Amwh,  \'2:\. 
\\\*  iinler. 

I'lt'fi.re  the  eostsnf  theprneee.liii.ij;snn  eitatinn  10.     .nirlsillctloil    ill  psirtltloil    Of    lillHl — 

til  ii'iiiler  an  aeennnt  eaii  lie  allnwed  aj^aiiist  an  'l"he  real  estate  nf  the  intestate  was  parlitinned 

Hiliiiiiiisiratm'  personally,  the  notice  reipiired  liy  liy  ( 'oniiiiissimiers  appointed  under  the  IVoliatc 

■I'ltmn  1(1,  ehapler  V2,  of  Ads  of  IS.nS.  inust   he  .Ael,  wlm,  liy  their  report,  left  a  certain  |)iirtioii 

-'ivfii,  and  he  must  ajijiear  frmn  the  evidence  to  of  the  land  nndivided.       Tiiis  partilimi  was  coii- 

Iwvi'  acted  frniidniently.  lirined  liy  order  of  the  ('luirt,  the  estate  having 

///  ;•!'  K-ilul,  «/  Unlstdti,  'JTIioni.,  10.").  lieen  |)revioiisIy  .settled  liy  decree  of  the  .Iiidgo 

of  I'rnliate,  wliicli^asin  evidence.     .Afierward.s, 

t«.    JlKliflllOIlt   on    warrant    of  attornry  W.   Hawkins,  Imsliand  of   one  of    the    heirs  of 

made  by  husband  and  wife  -Judgment  valid  intestate,  iietitioned  the  Jndi.'e  of  I'roliate  for  a 

till  set  aside  in  Court  where  given-When  a  partition  of  tlio  nndivided   portion,  and  a  large 

«|'inaii  entitled   to   real   estate  Joins  with    her  hmly  of  evidence  of  lossessimi  was  put  in  on  liotli 

liiil'iaiid  in  executing  a  warrant  of  attorney  on  sides,  the  whole  of    .vliicli  this  Court  held  to  ho 

«hiL'lia  judgment  is  entered  and  recorded,  in  futile  and  unnecessary,  as  there  was  no  ground 

order  to  hind  such    real   estate,    the  Court    of  for   sustaining   any  possession  in   either   party 


113!) 


PHOnATK  COURT. 


1140 


timt   cdiild  iiitliHiii'f  till'  clicJHiim,      Till'  .Fiulu't' 

of  I'l'iiliilr  ill->liliK-.i'cl  till'  prtitliin    nil  llli'  u'l'iillllil 

llmt  ill'  Imil  nil  pi iw  If  lo  Hi'iili'ili'<piili'il  inirKiimit 
4if  titli'.  (Ml  iippi'al  to  till'  .lililt^t'  ill  l<'.<|Uity  thin 
(Ii'i'Imjiiii   wiiK  iiM'i  luliil,  mill  till' .IiiiIk"'  "f   I''" 

liiili'  iliii'ftt'il  til  pii'i' 1   uitli  tlif  I'liii'*!'.  ulii'li 

ht)  iliil,  iiiiil  illi»iiiii«Ht'il  till'  pi'titi.iii  <>u  till'  iiii'iits, 
ili\  iiliiiU  till'  iiiHtH  lit'twi'i'ii  till'  litiKiiiils. 

Until  p.ll'tirM  lilivill^' llppi'illril, 

//«///.  that  till'  tilled  iliiii'i' iil"i\  I'  ii'fi'iii'il  ti> 
was  iviilrliri'  witll  llif  iillirr  I'vidrlii  r  lirfmi'  lln' 
('unit  of  till'  tiimlm-'ttltiiiriit  III  till'  iHtuti'  liy  tlif 
.llld>.'i'  iif  riMlHiti",  that  aftir  siiili  M'tt'i'liii'lit 
his  jiiriHilii'tii'ii  oviT  liny  iiiiwild  nr  iiiidividrd 
porliimm't'iiMil ;  that  tlii' i)li.ji'Ltiim  fur  want  of 
jiii  iwdictiiiii  wan  ri>;litly  taki'ii  iit  any  stunt',  "ml 
that  ihi' iippi'iil  "f  till'  pi'titiniii'i'  Haw  kins  iiinst 
thi'ii'tiMr  111'  ilisliii.>>ril. 

Till'  riiMtH  of  lioth  Hppi'als  Mill'  ,y;ivi'ii  In  tin' 
ducoussful  party  liifini'  llii'  .linlKf  "f  I'mliati', 
I'Mi'pl   till'   rusts  (if  till'  I'VidrllL'i'  aliiivi'   ri'fiiri'd 

tu,  ri'laiiiin  t<i  till'  titlf  l>y  iiosHi'ssimi. 

//)  /•,    Iv-il'th   III'  SlllllMIII,  .'t  1!.   iV  ('..  .'(."iT. 

•iO.    I,«'Kao.v-Iilal»llllj  ofn-iil (Slate t(M»i>.V 

— Tin.'  real  I'sliitr  nf  a  ti'stiitnr  is  not  liaMi'  Inr  llu' 
jiaynii'iit  nf  li';.'a('ii's,  iiidcss  it  is  inanifrst  fiiun 
till'  will  that  sinli  was  tin-  ti'statni's  inti'litinli. 
('<iii>liiiitinii  "f  till'  I'liiliati'  Ai't,  iliaptur  ll{(l, 
KfV.  Slats.  cJiid  si'iii'sl,  si'i's.   l;t  and    IS, 

III  n  K-h,i.  I,/  MiKiiih  1  OM"  !•■<'• 

•21.    Letters  of  i'robate     Exetiitor  not 

liable  fov  moneys  paid,  though  will  at'teiward.s 
set  anidi'  Notice  of  application  to  set  aside 
will  -i)L'ft'iidaiit  was  ajipiiintt'd  exui'litov  lilidcr 
a  will  whii'li  aftur  lu'  had  iilitaini'd  proliatu  and 
had  idlliTffd  di'lils,  |iaid  li'j,'ai'ii's,  itt',,  was  set 
aside  fill'  want  nf  due  execiiliini. 

//«/'/,  that  the  {planting  of  proliatu  was  a  siif- 
ticient  defence  to  an  action  lironi^ht  liy  the  ad- 
niini^tiatois  to  ici'iivef  the  inoneys  ]iaid. 

,l/<f),  thai  iilaintitl's"  case  was  not  strength- 
ened liy  the  fact  that  defendant  liefole  paying 
the  legacies  had  notice  that  the  will  woidd  lie 
attacked  iiixiii  another  gioiind  than  that  upon 
■which  it  was  .set  aside, 

HatidnUil  nl.  v.  D'hi/i,  (i  H,  k<'.,   Hl<» : 
(I  C.  (..  T.,  144. 

•22.     Linbility   for   ReRlstrar's    fees    in 

Probate  Court  -I'laintiff,  a  Registrar  of  I'm 
Itate,  was  reiine.sted  hy  the  defendant,  a  proctor 
practising  in  the  Court,  to  piepare  copies  of 
certain  papers.  Hefore  the  jiapers  were  com- 
pleted plaintiff  ceased  to  be  Registrar,  hut  was 
not  aware  of  his  removal  from  office  when  the 
order  for  the  papers  was  given.  The  work  was 
<;harged  not  to  the  defendant  but  to  the  estate 


for    which    he    was    actiliK.       The    Manistriitf'ii 
Colllt  and  till'  Coiinly  ('ollll,  on  nppi  m1,  decjilr.l 

ill  favor  of  the  plaint  ill. 

//'/'/,   that    the   defendant     Was    liable    for   till' 
fees. 

/;//■".  V.  hirkn,  I  K.  \  (...'.'111 


2!).    LleenNe  to  well     A  testator  tle^hiMl 

his  leal  estiile  to  his  wife,  "  ill  illlst  to  »ill  ,iii.! 
dispose  of  the  same,  at  such  times,  and  in  hiiiI; 
niaiiiiei',  and  in  such  portions,  as  she  might 
deem  suitable  and  pnidellt,  and  to  iiiM'sl  tlir 
proceeds  arising  from  such  sale  in  Honie  safe  uiiil 
prolitable  security,  and  to  apply  the  pioii'i'il. 
arising  from  such  investments  in  the  support  iiml 
inaiiiteiiaiice  of  herself,  and  ill  the  support,  c.li, 
cation  and  niainteiiaiice  of  such  of  his  cliilihi'ii 
as  shoidd  be  under  age  at  the  time  of  his  iliilli, 
and  until  such  sale  to  receive,  take  and  enjoy  tlic 
rents  and  prolits  arising  from  such  real  e>tati'. 
during  the  term  of  her  iiatnial  life,  and  |o  apply 
the  same  as  almvu  directed." 

IJy  a  snliMe(|iielit  clause  he  ileviM'd  ami  \n- 
i|iieatlieil,  from  and  after  the  death  of  his  witi', 
all  his  real  and  iiersonul  estate,  and  the  iiioiii'Vi" 
so  invested  as  aforesaid,  to  and  amongst  liis 
sons,  of  whom  M.  was  one,  their  heirs  mul 
assigns,  share  and  share  alike. 

M.  died  intestate,  his  mother  was  appoiiiti'il 
administratrix  of  his  estate,  and  iijiplication  «;i> 
made  to  the  Court  of  I'lobate  liy  the  assiglU'i'sot 
certain  of  his  judgment  creditois  (his  peiMiiiiil 
estate  being  sworn  to  he  iiisiitiicieiit  for  the  p;iy- 
nieiit  of  his  debts),  for  license  under  sectieli.i  l.'t 
and  17  of  the  I'robate  Act  (I'.ev.  Stat>.,  ilii'l 
series,  c.  l:«l),  to  sell  his  interest  in  the  li'iil 
estate  of  'he  testator. 

//.Ill,  1st,  /"/•  Voung,  C.  .1.,  Dodd  and  IV"- 
liiirres,  .1,1.,  (Wilkins,  ,1.,  (/m.s«  y,///*;;),  that  llic 
wife  of  the  testator  look  an  estate  for  life  miiIv, 
with  a  contingent  remainder  in  fee  to  his  soli-. 
I'd-  Wilkins,  ,1.— That  the  wife  took  an  cstit. 
ill  fee. 

•Jiid.  /''/•  ^'ouiig,  C.  .1..  and  Dodd,  .).  -Tluit 
the  granting  of  a  liceii.se  for  the  .sale  of  ic:it 
estate  under  Revised  Statutes  Ciiid  stiiosi, 
chap.  l.SO,  .sees.  1,1  and  17,  is  discretional  V  with 
the  Court  of  Probate,  and  that  thai  discietioii 
was  rightly  exercised  in  the  present  iiistaiue  I'V 
the  refusal  of  such  license. 

/',,•  DesRarres  and  Wilkins,  .I.T,  —  That  tlu' 
Court  of  I'robati.'  had  no  power  whatever  t'l 
grant  such  license. 

Ill  Ihi'  K-iiati:  of  Miihrul  O'.Snllirnn, 

10M.,.'W- 

'24.  Lleeiise  to  sell-Wlien  .lohii  Mf Don- 
ald, the  owner  of  certain  real  estate,  died  iiH"!- 


1141 


pRoiiiniTroN. 


114-2 


vi'tit,  liiiviiix  u|i|iiiiiiii'il  tiiiii  lAi'i'iititm  fif  IiIm  litNl 
will,  anil  Iwiiiif  till'  I'Xi'iiitnix  liMiU  mil  I'mlmlf, 
mill  iililuiiii'il  all  iiiili'i  t'lniM  till'  I  liiM'i  iHii'  ill 
(  iiiiiK  il  t'ltr  till!  Nulf  of  tilt'  liiml,  iiinlir  wlijiji 
llic  I  Mill  wiiH  Niilil  til  (  IiImIioIim, 

//■  /'/,   timt    tl|illl;,'ll  till'  utlll'l    t  Wll  ('VI'llllnlM  llilil 

Mill  ii'iHMiiii'i'il,  mill   the  Iwii    will!  ai'tt'il   iiiiilii 
llii'  iiiili'i'  liiiii  mil  jiivi'ii  till'  st'i'iiriiv  H'i|nin'il  liy 
Statiiti',  yi't  till'  iii'ili'i-  iiiiilil   iiiit   111'  iiii|iiimii'il 
liv  tliii  ('mil  t. 
Ilililiiirliiii,  ( '.  .1.,  '//'ill  iifiini. 
I'hi^liiiliii   V.  .\/rlh„ifihl  il  „/.,  •_•  Tlimii.,  ;jli7. 

'I'u    Power  (if   The  ( diirt  of  I'nihiilc  Iiiim 

III!  till  |in\vi'i'  lit'  till'  ( 'mil  I  iif  ( 'liaiii't'i'v  til  cnalilii 
II  111  si'ttit'  tilt'  ai'i'iilllit*  iif  all  I'stalf,  'I'lii' 
ui'i'niiiii  lit  an  ailiiiiiiiHtraliir,  wlin  i.i  ii  I'l't'ilitnr 
iif  llii'  cxtati',  liilLst  III'  llUil  at  li'asl  a  liinlitli 
lii'fiiii'  lilsli'iliiitimi  of  tilt'  I'.itiiti'. 

Wlii'ii  a  ilt'i'i'i't'  (if  11  I'i'iiliatc  ('milt  i-i  li'Vciscil 
lis  au'aiiift  III!  I'xuciitm',  lit'  will  not  in  milinaiv 
caiti'i  )ii<  Mulijt'clt'il  iH'iftiinally  tn  I'liHts. 

Iv'f'il'  It/  I'lilh.  riiii   Mil)iiiiii/(/,  .laliii's  ',i\'2. 

W,    I'riM'tlci'  ill    A  will  iiavliii;  liccii  pro- 

il.iiiii  fur  •noliati'  in  t'miiiiinn  fmiii,  iimliatf  wns 
nfii.iril  III!  ariiiuiit  of  ilt'ft'i'lM  mi  tlif  fai'f  uf  it, 
mill  tiu'it'ii|imi  tlif  I'liiiiHt'l  prt'st'iii  cttiiMunti'il  tu 
liniiii'il  with  an  invi'MtiLtatimi  tn  t("<t  llit;  will  in 
sniciiiii  fiiriii  witlimit  tilt'  ii.tual  fitiitimis  anil 
iitlii'i'  iiri'liiniiiai'ii'H  iiccoiiling  to  tiiu  prai'tii't.' 
iif  till'  ( 'milt.  Till'  .Imlui'  iif  I'liili.iti'  ili'i'i'ueil 
till'  will  tn  111'  invaliil.  A  iii'i'iiiiiaiy  Ifuateo  ] 
uiiiji  r  till'  will,  wliii  liiiil  nut  lii'i'ii  a  iiarty  in  tlu' 
I'liii-^i'iit,  was  niif  (if  tilt'  a;)iii'llaiit.-i  frmii  tliii  ilf- 
i;i'i'i'. 

If'lil,  that  till'  a|)|it'al  niiist  lit-  allnwtiil  Imt 
witliiiiit  I'liMts,  as  tlii'it'  hail  ln'on  a  i-mist'iit  tn  tin.' 
IHiiii't'iliiigs  lic'liiw  liy  all  the  L'mili.sul  that  hail 
ii|i|)i'aioil  at  tliL'  liar  in  this  Couit,  whn  wt'ie  thu' 
ciiiii'  (ii'dC'toi'H  iintl  ailvnt'atus  whn  had  a|i|i('aii'il 
1."1mv. 

//(  )■(  KsNt/i  Ilf  Coil iiul/i/,  •_*  It,  it  (;.,  7.'< ; 
I  c.  r..  ■]'.,  .V).-.. 

-t.   Qiiuntiim  Meruit    Attrndaiue  on  and 

care  of  (leceaaed-  H.  K.  dii'd  at  a  very  iid- 
ViiiU'i'il  ago  hiuiiig  hfen  faithfully  iiiiil  kindly 
curt'il  fill'  (luring  the  last  tlireo  years  of  lii.s  life 
liy  lii^  *'iiu  .1.  K.  and  his  smi's  wife.  He  had 
priiiiiiscil  in  cnnsideiatinn  nf  this  atteiitimi  and 
eare  to  devise  one  of  his  houses  tn  a  smi  nf  ,1.  K., 
Imt  iliiil  intestate.  No  liargain  appttared  to 
I'lvu  heuii  made  lietween  H.  K.  and  .1.  K.  as 
'"tlif  rt'iiuiueration  .1.  K.  and  his  wife  were  to 
itftive  for  taking  care  of  him. 

H''l'l,  that  J.  K.  was  entitled  to  reneive 
riM.SDiiahle  compensation  for  the  .services  ren- 
ik'rcil  mit  of  H.  K.'a  estate  which  was  consider- 


alili'.      •).    K.   had  lived   III  nllinl    II.    K.'m    hniriCK 

diiiiii'.,'  till'  ilnii'  III'  tniik  I'll!'  lit  till'  n|i|  niin, 
willimit  paying  reiil,  and  the  ('mm  aljnueil  hini 
six  hundred  dnllars,  mi  appeal  finin  the  I'm 
liate  ( 'mirl,  w  liii'li  had  allnwi'd  liini  .'^.'llill,  and 
mdeied  the  I'Osts  of  the  ill\  •'<!  i'.Mt  imi  and  appeal 
In  lie  p.lid  out   of  tht^  l"<tate. 

til  <■.   /:\/ii'i  <>/  II.  K'liii'ihj.  •_'  II.  &.  C,  .•i.'lll, 

'iM.    Siibinl.HNlon  and  award    No  esiopiiel 

l)etween  other  parties  'I  he  surviving  e.'.ei  utm 
eitt'd  the  parties  ilitui'UHted  In  the  cHtiite  of  the 
ili'iiased  In  attend  fur  the  piirpnse  of  a  liiial  set  • 
lleliietit,  and  a  pi  t'liiiiiliary  i{ii('stiii|i  was  raised 
as  to  w  hetlier  all  inattt'iN  in  dispute  had  not  lieeli 
settled  liy  nil  award.  The  award  in  t|liestion 
resulted  from  a  sulililissioli  towhieh  lliee.\eeutor 
iiinl  e\t'iutli\  alone  were  parlies  and  leeiteil 
ilitlelelU'es  lietWeeli  tlinse  parties  only.  It  up- 
peareil  that  ntiier  parties  tiiuli  timse  wi'lf  inter- 
ested in  the  estate,  viz.,  t  he  ehildreii  aiiil  the 
ili'ilitms  (it  the  testatiii . 

Il'l  I.  that  whether  tiie  parties  tn  the  Mihmis- 
simi  were  nr  Were  imt  estnpped,  as  there  wcie 
ntlier  parties  interested,  the  .lllilge  nf  I'rnliale 
slimild  have  nverruled  the  |iieliiiiiii!ii'y  iilije.  limi 
and  ilei'ided  upon  the  eviiU'liee  independeiitly  of 
the  sulinii.ssinli. 

///  /•.    i:st(ili  i,/t,\i,r,f  Siii:'li.  ,•..  ;t  R.  &  (i.,  .'illll  ; 

•-'  ('.   L.   'I.,  (ilMi. 


PIMMIiAMATION. 

1.    or  Kold  district 

s     MIMXi  LAW. 

t!.    Of  Uor('rnor-O(>n«'ral  - 

s  '  CANADA  TKMI'EKAXE  A(T,  4  X  ,.. 


TKOtTOK. 
Liability  of,  tor  HcuristrarN  fees  In  Pro. 

bate  Court  - 

s     PKOBATE  (01  RT,  -'-'. 


PKOIIIBITIOX. 

1.  Count}  Court  iiroliibltcd  Trom  pro- 
ceeding with  rirfiomri  to  remove  conviction 
under  Canada  Temperance  Act  —  Reference 
by  Judge  at  Chambers  to  Court  in  hanr  — 
A  conviction  under  the  Canada  Temperance 
Act   wa.s    remnvetl    to   tlie    t'ounty   Cnuft    by 


114:1 


PKOTHONOTARY. 


1141- 


virtinrnri.      '\'\n-  |iii«s((iiliii-  ii|i|ili<Ml  to  u  .liid^jit    nmy  Ix;  I'l'HtiiiiinMl  liy  I  lie  Sii|iriiin:  < 'oiirl  l.y  \M  il 
of    Ihf    Siipicnio    Court    at    ('liitinlii'rH    for    ii    of  pidliiliilion. 


writ  of  |M'oliiliitioii,  to  proliiliit  I  In:  Comity 
('oiirl  from  fiirllicr  iirocM'cding  on  llic  f  r/iomri, 
iiricl  llir'  oilier  (//i/  for  tlii'  writ  of  |iroliililt ion 
was,  liy  a  .)  iiil).'i'  incsidiiiL;  at  ClianilicrM,  ri'trrrrd 
to  the  Coiirl  ill  liiiiir.  jlcfi'iidaiit'H  coiiiimiiI  oIi- 
jcilcd  that  till' diidv'i'  at  ( 'liaiiilii'is  could  not  ko 
irfcT  tllc  a|i|iliratinii. 

//'/'/,    that    tlic   writ    of    |iroliiliitioii   iiiiisl     lie 
iillowi'd,  liiit  willioiit  cohIh, 

ijiiiiii  V.  o'.w;/,  -JO  N.  s. }{.,  (H  K.  &(;.),  .'•:)(». 
i.    Trover      Di^rnicc   In   County  Court 

(liJit  thii  value  of  (he  },'()odH  Ih  over  $20(t  i 
Writ,  of  prohiViition  hefcMilanis  weic  sued  in 
the  County  Court  in  an  action  <if  trover  tor 
foods  and  pleaded  that  the  ^fdnds  alleged  to  have 
lici'ii  converted  were  of  the  value  of  S(i<K(  and 
upwards  and  the  ('oniity  Coiiit  had  no  JMiisdic- 
lion.  The  plea  was  dcminrcd  to  and  lu'ld  to  he 
;.'ood  liy  the  Coimly  Court  .llid>.'e,  who  was 
aliout  proceeiliii;;  to  t  I'y  the'  case  when  a  rule 
»/v/ was  taken  at  the  instanci' of  iJefeiidantH  for 
a  writ  of  prohiliit ion. 

//(/</,  that  the  plea  Was  not  a  ^'ood  plea,  as  I  h(! 
daiiia).'es  (daiiried  \vcic  only  .^''-'IKI,  and  the  liiean- 
lire  of  ilainaj^es  In  trover  was  not  necessarily  the 
value  of  the:  f.'oods  :  and  that,  the  Court  having 
jurisdiction,  the  writ  of  prohiliilion  could  not 
h(t  L'tatlted. 
n'Tuoh  1 1  <il.  V.    Ifiilliir,  ,1  III.,   I  H.  .V  <;.,  ,'{.-.7. 

Oil  iijijiiiil  III  III!  Siijiri  nil    ('mill  III'  ('iiiiiiilii, 
III  III,  Si  roll!.',  .!.,  ili^xi  iilhiij,   that  the  eflect  of 
the  jud^'inenl  on  the  demurrer  was  to  ipiash  the 
writ,  and  the  rule  /(/-/'  for  a   writ  of   prohiliilion 
should  lie    made  alisolute. 

/'<;•  Strong',  .).,  ilisii  iilimi,  that  the  jui|>.'meiit 
of  the  ( 'oiinly  Court  ,luilj.'e  on  the  deiniirrer  did 
not  dispose  of  the  case;  liiit  he  had  a  rij.'ht  to 
reconsider  tin,'  same  on  the  trial  of  the  issues 
raised  )iy  the  other  pleas  ;  that  the  plea  to  thr- 
jurisdict  ion,  liy  attorney,  was  null  and  void, 
and  if  jiidj^inent  had  hcen  entered  of  record  on 
the  demurrer,  sudi  jiiil).'iucnl  would  have  heen 
likewise  null  and  void,  and  that  tin;  lunount 
(•lainied  liy  the  plaint iH"s  declaration  lieiiif;  over 
(fir  in  Can.  Di^rest,  prohalily  "only"  correct 
readinu)  i*'-'*"!,  the  Court   had  jurisdiction. 

W'lilliiii   V.  (yTiiiili ,  li;ih   Filivwirn,  IS.^l, 


All'i/fii  mriU  o/IJiiiKiild  v.  /•'//'///  iinl., 

•.i  H.  &  •;.,  i:.;(. 

On  nji/iiiil  III  Ihi-  Sii/iri  iin  Cuiiil  n/ Cniiiiiln, 
III  hi,  that  so  much  of  sec.  1,'ptl  of  .'(I  Vic,  c,  S 
(l)oiniiiion  Inland  Itevenue  Act,  IXti"),  as  ;;i\is 
t  he  ( 'oiirt  of  N'ice-Admiralty  jurisdiction  in  cases 
for  the  collection  of  penalties  for  illegal  ilistill- 
inn,  i**  iiili'ii  I'ii'i".  The  judLfinent  ol  the  Siipnini- 
Court  of  Nova  Scotia  reversed. 

.lll'l/  'I'l  III  I'll  lij   I  'llllllilll.    V.    I'lilllil   III., 

mill  Jiiniiiii!/,   /.w;,  Cas.   Digest,  .'fJI  ; 
\  C.  I..  T.,  IHI. 


.s'«< 


PKOMISStlKY   NOTES 

ItlliLS  ttV  KXCIIAX^K  AMI  PIMIMISSOKY 
NOTKS. 


I'ltOSI'KtTINti   lilCKNSKS 
s      >II>|N<;   l,AU. 


iM(()TII<»OTAI{V. 


Till' 

I, it-. 


1.  Authority   lluiitnl    to    County 

power  granted  hy  .ji  ■ptei- 111  ot  the  l!c\ 
(•Ith  series),  to  I'rolhoiiolarieH,  to  giveoiiliisti.r 
security  for  costs,  for  licllcr  part  iculars,  and  l"i 
further  lime  to  plead,  is  limited  to  the  cniniiy 
where  the  writ  is  retninalilc 

(JiimniiniiH   V.   /lio'iii,  -  I!.  iV  C.,.'i'i''l. 

2.  Interest  on  money  deposited  hIIIi- 

L'ndei  ;{!  X'ic,  >■■  I'-',  and  :("  N'i'-.,  c  l.'l.  il"' 
.Minister  of  I'ulilic  Works  of  the  I  .iiujii'.n  "t 
Canada  appropriated  to  the  use  of  the  |)iiiiuni"n 
certain  lands  in  ^■arml>uth  County  kiinwii  ii* 
"  I'.iiiiker's  island."  In  accordance  with  -li'l 
Acts,  on  the  L'lid  April,  A.  !>.,  IST.'",  he  iinl 
into  the  hands  of  \V.,  prothoiiolary  at  lliilil^i'^ 
the  sum  of  .■*(!,  ISO  as  compensiition  and  iiiliii-'. 


as    provided    hy    tlio.se    Acts,     to    he    tlnlf^itl'i 
Cas    Digest     CJl'     appropriated  among   the  owners  of  said  islaii'i. 
This  Slim  was  paid  at    several  times,  hy  ofilii' "I 

;».    VIee-Adinlralty  Court    rroliihlllon  lo  H"-  Supreme  Court  of  Nova  Scotia,  to  one  .v.  a' 

—The   legislation    of   the    Dominion    Parliament  owner,  lo  one  ( 1.,  as    mortgagee,   and   toutli'i- 

(31  Vic,  c.  S,s.  l.-itil.  giving  the  Vice  Ad.miralty  entitled,    less    ten    dollars.      As  the  iiinni  V  I'"! 

Court  jurisdiction   in  cases  for  the  (M.llection  of  remained  in  the  hands  of  \V.,  the   I'rolhi.iin'.'i) 

penalties  for  illegal  distilling,  is  »//m  'vVr.s  and  of  the   Court,    for  .some   time,    H.,  attorney  l"i 

the  ViceAdniiralty  Court,  as  an  inferior  Court,  C.,  applied  to   the   Supreme   Court  for  mi  "I'l'' 


1 1 45 


QiKK.y,  Till: 

s  '  SOVKKKIli.N,  TIIK. 


1140 


<|IKKVS  <0I  \SKI.. 


ul  llii-  ('(Hill  ciilliiij,'  ii|iiiii  W'.,  ill):  I'nitlioiiot.iiy, 
III  )i,iy  DViT  the  IIiIcIi'nI  ii|ii>ii  (  I.'h  |imi|mi|'I  jiin  ul 
llii  iiiDiifyx,  wliii'li  iiitricMl  (II.  wiiH  iiiloiiiicil) 
li;iil  lif(!ii  nHjcivi'il  liy  ilic  I'l'DtliiiiiiitHry  t'i'iiiii  ilio 
liiiiik  ulitrrc  In:  liiiil  iiliiccil  till!  I'uiiiiiiiil on  il)!|i<isil. 

W  .  ichiNl(!il  tin;  U|iplii;Ht.iii||,  (III  Ihf  ),'|(Mlliil  llliit 
III  wus  not  iiiiMVMTiilili;  III  llir  |)r(i|iii<;lcir  of  tlin 
|iiiiiri|ial,  III   to  I  he  ( 'diiii  ,  fur    iiilcitrsi ,    lilll  iliil 

hi.i  ii.iiy  iiiiii  iiii.MVMt  iiiiiiiHfiir.M'i.ivi'.i  iiy  iiiiii.  1.    ()uvcn*.s  <'ciiii.s<'l      I'owcrh  of  Local 

A  iiilc  »/.-/  wiiM  i^iaiilfil  l,y  III.'  ('..nil,  mill  iii!ul<:  Lt;giHlatnre  to  apj  i-inl     l,,tatcr.i  jmlunt  of  piv- 

,il,-i.|iit(;,i)iilciili«llii;  I'li.lliiiijoliiiy  lii|iiiy  wiml,  (tcduniri;     (  Ii.iiiIit.i  •_'(»  iiml -Jl  i.t    llir   N.  .S.  Arts 

(Ml  liiliM.t  intcrcNi  III'  icicivnl  mi  tlif  iuiinniii.  of  IS7»,  ic.m|«.,:1  ji,;.-  ihi'  a|i|ii.niiiiii'iii  uf  «.»iiii-ii  .s 

//./(/,    I.      'I'liitl  till'  I'lDllioiioliiiy  Wii.M  iiol  en  ('(.llliM'l  and  till'  ir;-illiilii.ii  (il    ihciiiI.ikx- al   (lie 

lilliil  loaiiy  iiitciCMt  wliicli  tli(taiii(.iinlili'po«ili!il  Uar  of   \.  S.  I.y  tin-  l.i.Mit.haiil  ( iovci  nor  of  I  lie 

inijiid    wiiili;    iiiiiirr   till'  I'oiitrol  of  tilt!  ('oni't.  rroviiici;  in  ('oi.ncil,  iiif  inhn.  ri,;..,  Inn,  i\,r  la- 

Tli.il,  in  oiili:iin>^  tint  I'lotlionotiiiy  to  pay  over  li^r  in  not  to  Ih'  roiiMtincil  a.s  ri'tin.^pii'iivi'  in  its 

llii-    iiili'ii'st    icrcivi'il    liy    liini,    iIjc  ('unit    was  t^ll'tMt, 

.-iiiipiy     i'Xi!l('i.Min.Li     till'     .siiininal'y    Jiiii.silidlion  .laiui-.s,  .1.,  «/ms, /,///,,/,   a^  i,,  i  In-  laltrr  Ail   not 

mIihIi  larli  of  till' Siipiiioi'   ( 'oiirt.s    lias  over  all  l.i'iiiv'  i<lrospi'i'ti\  c. 
its  iiiini<!(li!lt(!  oIliiiiM,                                                           I       Til.!  olil    (iicat   Seal  of   ;lii'    I'lovn,,-,'      llialiii 

foililiit!!' anil  II. 'iiiy,  .),).,   i/mw,  «//;,,/.  usr    Hinr.'    IS.'IT        n.^..,!    i,n    pat.ntM    appoinliuM 

'.'.     'I'liat   th.'   oi.l.'i    app.'al(!.l    from,    lii!iii^  a  (,»ii.'('ii'.s   ( 'oiin«.'l  ami    H!j^iilalin;^    pH'(!i!(|i'm'(!  al 

ilin-ion  on  an   apiilicatimi   I.y  a  tlijiil   parly   io  llic    liar  in   JHTH,   iias.!.!  lol„'tln'  C.ny.a  S.al  ot 

llii  Coiiil,  waM   appcalahlc   iimlii    lln!    Iltli   «.'.,'.  tli(!  I'rovimi!  on  III.!  Iniii.smiH.'iion  of  a  new  <  lifat 
"' '''"^  ^ '''••  '■'   "■                                                                  ;  Si!al  to  tht!  Lieiilciialil -Covi'inoi    in    Ucc'iijlici , 

I'liiirMirr,  .).,   inssniliiiij,   ami   'raMi'lii!ri'aii,  .1.,  I,S(;!(,  tlioii^jli  not  ailopti-ii  or   pi  (.claimcil    l.y  iIjc 

''"'"'""''•  l.i.'iiti.'Maiit(io\iiiior    in    (■|.iim!il.       .lain.'.s   .1., 

Ill  poll. '(I  ln!|.)W  a,s,  //(  /■!    Iliiiibr\  liliinil,  i/is^,i,lii,i/. 

.'t  It.  i^c  ( '.,  ."ifiT  ;  U'ilkin.s,    .1.,    a;,'r.'.!iii>,',     Init    ^;.\p|•.■.^,^inJj     Ilic 
On  app.:al,  a!s   H'i//:liis  \-,  <li,l,l,s. 


rUOVIMI.lli  KAILWAVS  - 
V     liAlliW.WS. 


I>l  liM(    liOIIIKS  - 


pinion  llial  tli.!  pr.'.i.:!..'.!  of  a  (ileal  Seal  on  I  hi! 
if 'S.  ( '.   It.,  •JO.'i.     (loiiimcnl     in    i|iir.sti(,n,    allixi'il    I.y    ijat    prop.!!- 
j  olli(!.;iN,   rai.-ii'd   a   (■omIiiNi\('   pii'!'.iimpl  ion   a^   to 
its  valiilily. 
///  II   I'riiiilriiri  (,/■  Hihliii  ^  <j.  r. ,  L'  l;.  .V  ( '.,   I,")(). 

Oil  U/i/ii  III  /ii  /III   Sii/'fi  nil    I  'mill  III'  Ciiiimlii 

liy  .'(7  \'ii:.,  c.  •_'(),  N.  ,S.  (I.nTI),  till!  i.i,uii,.|,ant- 
(io\(iiior  (.f  till'  I'roviiiL'i'  of  .Nova  .Scotia  wa.s 
aiillioiizcil  to  appoint  l'ro\  incial  olliccr.^  iindii 
tlic  lialiii'  of  Hit  .Majcsly V  ('iiiins.'l  l.'ariii'il  in 
till'  l.iu  for  tin:  I'mvimi'.  liy  .'{7  \'ii'.,  r.  21, 
\.  .S.  (1.^71.1,  till!  i.ii'iili'iiant  (iovcriioi  wa.s 
lUltliorizi'd  to  ;,'r.iiit  to  any  iiiiinln'r  of  llic  l.ar  a 
j)atcnt  of  pii'iiilciiic  in  iju' ( 'onri.s  ot  tin-  I'ro- 
viiii'.' of  .\i.\ a  .Scotia.      It.,  tlic  n-sponil.'nl ,  wiim 


Lliihilil)  or,  for  torts 

V         II A  I  I  n  V      i'lTV    i^r  '     ■"""'''  "•^"'"         »'■)""''  ■"I'"ii 'Hill  ,« it; 

-V!    IIAIjIIM.V,  (  ITl    OK    ,j,,,,„i„,,.il   I.y  llie(;..v.!i'iior-(;i'm,'ial  on  ll„'-_'7t| 

I).'C(!iiil).'r,  I.ST-,  iindi!!'  tlii';,'r.!at  .seal  of  ( 'ana'Iii,  a 
(,liii'(!nV  Coiiiincl,  and  liy  the  iinifoiiii  piaclicu  of 
tiif  ( 'oiirt  lie  liad  pi.!ii'ili'iii'i' o\(r  all  liifinl.ur.s 
of  till!  l.ar  not  lioldiiij,'  iiat.nts  prior  lo  Ids  own. 
I!y  li'tt<!is  pat. 'Ill,  ilatiid  '-'(itli  .\I,iy,  |S7(»,  niid.'r 
111.' Hiiiii-I  ''i*!:!!  of  til.'  I'id\iii(;.',  and  ,sij,'m!il  I.y  tln! 
Lii'iitfiiaiil  ( Ii.v.'inor  and  I'lovincial  .Sccruiary, 
Hi;V(!i'al  in.'inl.er.s  of  tlit!  l.ar  wi'ru  appoinlt'd 
(.Mifcn'.s  ('oiinH.!l  for  NovaScoli.'i,  and  pruccluiice 
was  granu'.l  to  tliciii,  a.s  well  as  to  other  (,»in;i'n'n 
CoiiiisL-l  iippoiiited  l.y  the  (iovernor-C  teiieial  after 
the  Ist  of  .Inly,  I.S(i7.  A  list  of  (,>ii.;en'.s  ('onnsel 
to  wh.iln  preecdeiice  had  I.eeii  tliii.s  given  l.y  the 


PlBLIt    tOMI'AXY 
s  '  COMPAMKS    tCMtl'OKATION, 

PlBLIt  STKKET- 
V"  WAY. 


1147 


RAILWAYS. 


lUS 


U.ut..Miu>i.<;ov.n.or,     was    ,m\,li.lu..l    in   the    either  from  tl.e  Covoiiior-iJemTal  or  tl,-  l.,.u. 
I'„„ul  <!>r.tl.    ..t  th..  •-•Tth   M.iv,   ISTti,  „ii,l  tl.e  ,  teiumt-CoveriH.r,      W.  in.Ae.l  f.  liave  his  caise 
nanu'  ut  I!.,  th.'  Rspunaei.t,  was  inchuUM  in  tlie    futoie.!  on  the  .locket  i.nor  to  thul  ot   K. 
list     l.iit  it  <Mv.!  ,.i.-c'e.lence  and  inx-  -  au.lieno..'  i      Tl'c  n.otion  wan  .lisnilssnl. 
,,et.'.e  hi-n  ."o  sevcal  i-e.-sons  ind.uHn.^  ai-pel-  Lonlhj  v.  K,.ly,  .S  N.  S.  I).,  :,.«i. 

hints,  wlio  (li<l  nut  onjoy  it  hefore. 

Upon  atlhhivits  disdosiny;  the  above  ami  otlier  | 
facts,  iiikI  on  pioilucinj;  the  originiil  commission  | 

ami  letters  patent,    It.,    on    liie    Mr.l   .lanuai-y,  ;  QIOKIM. 

1H77,  (.hlained  a  rule  iii-i  to  K'ant  him  rank  aii.l  ' 

precedence  over  all  (,)ueeii'.s  Counsel  appointed  in  Of  Bank  dlrCClOfS,  pOWCP  tO  IliakC  Cillls 
and  for  the  Province  of  Nova  .Scotia  since  the  —Hy  the  Dominion  Acts  of  1H7I,  c  .'i,  s.  :)•.',  mt 
'•'('.til  l»eceiMl)er,  IST'J,  ami  to  set  aside,  so  far  as  less  than  three  direct(.rs  were  constiimcd  a 
t'hev  all'ected  K.s  ](rece.leiKe,  the  letters  patent,  «|norum  for  the  transaction  of  Imsiness.  i;y  s. 
dated  the --'lith  May,  ISTti.  Tiiis  rule  was  made  »»  it  was  provided  that  directors  sliould  lie 
ahsolute  l.y  the  .Supreme  Court  of  Xova  Scotia  ele.'ted  l.y  the  sharehohlers  at  the  annual  incK- 
on  llie  •Jlith  March,  ISTT.  .\  preliminary  ol.jec-  in^;,  and  that  vacancies  should  be  tilled  in  the 
tion  was  raised  to  the  jurisdiction  of  the  Supreme  manner  provided  l.y  by-laws  which  by  anutiier 
CVmrt  of  Caiuula  to  hear  the  appeal.  \  section,  a  majority  of  the  directors  for  the  tinu; 

//(/(/,  1.  That  the  judgment  of  the  Court  !  being,  was  empowereil  to  make,  but  which  liail 
lielow  was  one  from  which  an  appeal  would  lie  i  never  in  fact  been  made.  In  .March,  IH74,  time 
to  the  Sujirenie  Court  of  Canada  (Fournier,  J.,  of  the  directors  apjiointed  one  Innes  a  diiectcr 
,liss,nliii<i).  t"  fi'l  '^  vacancy,  and  in  .September,    1S74,  a  will 

•>      /\c  Strong,  Fournier  and  Taschereau,  J  J.  1  was  made  by  four  directors,  one  of  wlioiii  wiis 

-That  c  -Jl  of%7  Vic.,  (Acts  1«74  of   N.  .S.)    Inncs,  who  seconded  the  resolution. 

l,.,s   m,i    a' retrospective    effect,  and    that    the,      //,/,/,  that  although  Innes  was  not  legally  a 

letters  patent  is.sued  under  the  authority  of  that    director,  the  call   was  valid,  three  of  the  .liiec- 

\tt    could    not    atlect    the    precedence   of    the  :  tors  who  made  it  being  legally  .pialitied. 

(,»ueen"s  Counsel  appoinle.l  by  the  Crown. 

'  S.     Pa-  Henry,  Taschereau  and  (iwynne,  JJ. 

—  That  the  H.  X.  A.  Act  has  not  invested  the 

Legislatures  of  the  Provinces  with  any  control 

over  the  appointment  of  t^»ucen's  Counsel,  and  as 

Her  Majesty   forms  no  part  of    the   Provincial 

Legislatures,  as  she  does  of  the  Dominion   Par- 

liimient,  no  Act  of  any  such  Local  Legislature 

can  in  any  manner  impair  or  affect  her  preroga- 
tive right  to  appoint  Queen's  Counsel  in  Canada 

directly  or  through  her  repre-sentative,  the  (iov- 

ernortieneral,  or  vest  such  prerogative  right  in 

the  Lieutenant-(;overnors  of  the  Provinces:  and 

that  :<7  Vic,  c.  -20  and  -21 ,  N.  S.,  are  nUm  rin-< 

and  void. 

4.     l\r  Strong  ami  Fournier,  J  J.  — That  as 

this  Court  ought  never,   except  in  cases  when 


Hank  of  Linr/iool  v.  liiijiloiv,  ;\  It.  .*c  C..  •-'»). 


QUO  ttAKKANTO. 
1 .    Relator  -  AMdavit  -  The  English  rule 

of  practice,  in  the  Queen's   IJench,  rccpiiies,  in 

cases  of  qm  irarvaiito,  an  allidavit  to  be  tiled  hy 

a  relator,  stating  that  the  motion  is  made  at  his 

instance.     1>ut  this  rule  was  made  in  Mieluiel- 

mas,  3  Vic.  {XH'.:*)),  and  is  not  included  in  mir 

own   Practice  Act   (1S(W),    by    which    oui    own 

practice  in  other  respects  is  directed  to  I'.ilbAV 

that  of  the  Knglish  C<mrt8  in  force  previous  to 

1  Will.  IV.,  so  that  this  rule  does  not  affect  us. 

In  IX  Sjiiiin,  1  OKI.,  .m 

this  lourt  ougnt  nexv.,   ...^m-   -   "■—   •■;-,  „.,,«.iY    riTY  OP    4 

such  adjudication  is  indispensable  to  the  decision  j      Act  HALltAA,  till  Of,  +• 

of  a  cause,  to  pronounce  upon  the  constitutional 


power  of  a  Legislature  to  pass  a  Statute,  there 
was  no  necessity  in  this  case  for  them  to  express 
an  opinicm   upon   the   validity   of    the  Act    in 

(luestion.  „.    ,  .     „  ^    /-.   t>     — - 

IaXoIi-  v.  Ililclw,  .3  S.  C.  R.,  o/o. 

2.   (tueen's  Counsel  -  Precedence  of  — 

R.  having  been  appointed  a  (Queen's  Counsel 
under  a  commission  from  the  (iovernor-tieneral 
of  Canada,  his  precedence  was  (lueationed  by  W., 
who  was  his  senior  at  the  bar  of  Nova  Scotia, 
but  held  no  appointment  as  Queen's  Counsel 


2.    Rule  nisi  for- It  Is  a  fatal  objection  to 

a  rule  ?t!.<s  for  a  quo  irarranfo  that  no  gmiimls 


are  set  out. 


J  a  re  John  Boinr,  2  R.-&  <i.,  .'M'J: 
Jie  Hoii-K  Estate,  2  C.  L.  T.,  9''. 


RAILWAYS. 
1.    Crossing-Injury  to  employees  by  loco- 

motive— While  plaintiff  was   passing  over  the 


'•^^  RAILWAYS.  1150 

tia.knf.lu.  n.ilvvuy<.|K.nitt..Iinc..niKrtion  with  ,U.l,.n,lant  C.nii.iiny  cuM  uut  iv.oit  to  the 
,Uftn,l,.ni  .s  nuia.«  \w  was  kiiockf.l  ,l„wn  l.y  a  pr..visi,„i.s  „f  ca]).  7(t,  K.  S.  (.Snl  sorii's)  u, 
l„..,in..tive  an.l  c.ipple.l  f„r  litV.  Ai  the  ,,.,i„t  a.,|Mi,e  land  ncccHHa.y  for  tlinr  milr-.a.l,' l,ut 
«hm.  plaintili  was  iMJiin.,1  Uuto  weiv  tour  must  ..l.tain  it  un.lcMh..  l;Uh  an.lUth  M.,ti..i,.s 
tnuks,  ,ncIu,liMgs,.lingsl.elwv,.ntlii.w..iknR.ns  .,f  tlioir  .,wn  Act,  nn.l,..'  which  they  w.mv  >x- 
l„.>,M.san,lth.-w.;.k,swhi,h.heuu.<,Wf,e..l.lipMl  ,,„i,.tMl  t..  teiuUT  or  pay  the  appiai....!  value 
t.,  cK.ss  twice  a  .lay,  au.I  over  which  ciiil.lren  l.cfoiv  lieiMg  cntitlc.l  t..  p<,sscs.si.,n 
tminciitly  cn.HHe.l  to  carry  f.KMlt<.mcu  working  //,/,/,  that  the  |,rnvisio„.s  i„  the  Act  incr- 
m  the  pit.  The  cr...ssiug  had  l.een  so  used  for  poraling  the  Con.pauy  (sees.  i:<,  14,  etc.)  relate.l 
s.xtnn  years,  and  at  the  time  of  the  acci,leut  to  the  ohtaining  of  lan.l  for  the  mining  opera 
was  nscd  a.s  a  road  for  horses  an,l  carts.  The  tjons  conten.plaled  l.y  their  Act,  l.ut  that  for 
c..,M>Mo„  practice  was  to  l.low  a  whistle  when  ,1,,.  purpose  of  ol.taining  land  f.,r  the  line  .,f 
.nviMcs  were  moving  al.ont.  l.ut  on  this  occasion  railway  an,l  stations,  which  was  a  matter  of 
.,„  whistle  wa.sldown.  and  the  view  of  the  track  pul.lic  interest,  they  could  resort  to  the  pro- 
was  olistrucled  l.y  some  l.ox  car.s  which  had  l.een  visions  .,t  cap.  7(»,  i:.  S.  Chd  series,,  that  no 
kit  standing  up<.n  a  si.ling  close  to  it.  The  in-  inference  against  this  view  could  l,e  .Irawi,  lr.,m 
^um  p  ain.Kl  passed  the  l.ox  cars  he  Was  warned  Uie  fact  that  see.  '2i  of  cap.  7(.,  making  a  certain 
.t  h.s.angei  hut  he  was  .struck  l,y  the  engine  class  of  .lamages  a  county  charge,  was  indude.l 
l,cl.,,e  he   Kul  time  to  escape.  ,,,„..„^,  „,^,  ,.,^.,,j,^^„i  ^^,^.,i„„^_  ,^^  ^,^^^^  ^^._,^.,^^^  ^,.^, 

//./,/,  that  the  damage  was  the  .lirect  result  not  refer  lo  lan.ls  required  for  the  track  and 
ol  the  negligence  of  the  servants  of  defendant  stations,  which  were  made  a  county  charge  l.y 
cnipaiiy  tor  which  the  c.mpany  was  liaKle,  sec.  .VJ  and  following  sees,  of  cap.  7(.  not  included 
and  tiiat  there  was  no  evidence  of  negligence  on    ,^,„„„g  ,1,^  cxcei.te.l  sections. 

ilic  i.iut  of  the  plaintitr.  v    v    <;./)  ,    i.-     )      ,■      /.  .,.,      rr  ■■  ■ 

,'  ,        ,  ,    ,    „.  A.  S.  Sail  i\- h.ci>l(,mln,ji  I'n.  y.   fit,   Hahiax 

,,    ,,    I,     .,,.,   ,.  .  ,     ,       ,,      ,        i  unit  tail'   I,, -I  lull  I!  1/  d-  Coci/  Co., 

',1.  1..  1>.,  I'l.}  di.stinguished.     \  enlict  for  phiiii-  ,,    ,.    ,,      „.. 

.  ,r  .     .  ,  '  l\.    r,.     1).,   lit).). 

till  sustained. 

Kn'ii  v.  77,.  Iiii-rro/oiiini  Coal  Miiiiiiii  Co.,         5J.    I)amiii;es -- Costs  Of  rc - apprai-sciiiciU 

ti  R.  ct  <;.,  L>-.>0;  ti  C.  L.   v.,  44t;.  of  land-Acts  1878,  c.  35-(oiiiinissioners  were 

,      „  ajipoiiited    under    c.    .T.,    .\cls   of    1S7.S,    k.  re- 

i.    Maniages -Appraisement  of -The  dC-  appraise   lands    taken  t..r    railway    purposes    in 

leiidaiit  tompany  was  incrporate-l   l.y  cap.  74  I )igl,y  County  and   it  was  provided   l.y  the    \ct 

'.1  the  Acts  (.f   KS7<i,  .see.  I.S  ..f  which   j.n.vided  that    the  re-appraisement,    •' f.gether  with   the 

taat  whenever   tl   should   l.e   necessary   f<.r  the  costs  heret..fore  incurred  "  should  l.e  a  county 

cdiisiriiction,  &o.,of  the  Comiiany's  w(.rks,  &c.,  charge. 

tiiat  the  C.mpany  should  l.e  invested  with  any  ///,/,   n.at  the  c.sts  for    .services    l,ef..re  tile 

lands,  and  n..  agreement  cml.l   l.e  made  for  tiie  (•..mmissh.ners  for  re-appraisement  could  not  he 

innciiase  therec.f,  the  Company  might  apply  l.y  taxe.l,  as  the  Act  provide.l  only  for  those  incurred 

petition  to  a  Judge  of  the  .Supreme  (ourt,  who,  pn,,,.  to  its  passing. 

It  satisfied  that  the  lands  were  necessary,  should  y,,  ,.,    \y,,„,„  Coniifi.  v  /tailira,,. 


le 


.Urtct  an  appraisement  ;  an.l  l.y  sec.  14  it  was  ,.,  /,,,,/,  Har,hj,  I  H.  .t  (;".,'  17(i. 

provi.Ied  that  on  payment  or  tender  (.f  the  coni- 

peiisuti(.n  awarded,  the  lan.l  should  vest  in  the  4.  Dama|;es  for  breach  Of  COIItrart  tO 
I'lnipaiiy  with  right  (.f  immediate  pos.session.  construct- Pleading  — Impossibility— I'lanitiir 
ll.v  tile  thirty-sixth  secti(.n  tlie  i.rovisions  of  set  <.ut  in  his  declaration  an  agreement  heiweeii 
lap.  70,  H.  S.  (;}rd  series),  were  made  applieal.le  one  Harry  Abbott  and  the  (iovernnient  of  X(.va 
to  tlie  line  or  lines  of  railway  to  l.e  l.uilt  l.y  the  Scotia  for  thee(.nstruction  and  eijuipnient  of  the 
tfnnpany,  "as  far  as  the  same  may  l.e  appli-  s(.-called  Eastern  Kxteiision  Railway  from  Xew 
liible,"  certain  sections  of  said  chapter  70  being  (ilasgow  to  the  .Strait  of  Canso,  a  traiusfer  of 
excepted,  among  which  was  section  24.  The  1 1th  Abbott's  interest  in  saiil  contract  to  the  Halifax 
secti(,n  ..f  this  chapter  authorized  this  Ct.mpany  \  and  Cape  Hreton  Railway  and  Coal  Company, 
to  lake  possession  of  lands  recjuired  for  the  a  contract  between  the  company  last  mentioned 
tiack  of  railways,  or  for  stations,  and  under  those  and  the  Canada  Improvement  Cc.mpany  by  which 
prdvisions  the  defendant  Cc.mpany  entered  upon  the  latter  were  to  construct  and  equip  the  road, 
antl  took  p(.sses8ion  of  laiul  of  the  plaintiff'  and  a  eontiwt  between  said  Cana.la  linpn.yement 
Company  (incorporated  in  ISOfi),  (.n  wliich  bor-  Cr.mpany  and  the  plaintitf',  under  which  the 
mgs  for  salt  had  been  nuule,  and  buildings  plaintiff  was  to  construct  and  e.iuip  the  road,  re- 
erected  with  machinery,  etc.  Plaintiffs  obtained  ceiving,  as  the  wt.rk  pn.gressed,  payment  in  cash 
a  rule  ((,■,,(■  for   injunction,  claiming   that   the  ,  and  bonds  of  the  Halifax  and  Cape  Hreton  Rail- 


1151                                                 HAILWAYS  ll.-)2 

Wiiy  iilliH 'iiiil  Coliili.mj-,  as  ill  till'  iiijrccliMliI  M'l  iniiililiDii    \>,is    violilcil,       'I'lir     Cinill,     liaviiii; 

fciitli.     'riuMlcvliir.ilioii  llioii  Ncl  out  ii  Miii's  of  |iiiwt'i'   iiikUm    tlit;    iiili'  to   ilclfiiniiu'    tlif   fuct, 

liiiiisiict  JOHN,  incliiiliii;^  11  suit  liy  llu'  plaiiililV  to  t'oiiliil  tliiit   the  |iliuiititl  ".s  vriNioii  of  tlii'  ii'^ici'- 

iciiivcr  (liiiiiagfM  for  iillc^fd  liruiiuli  ot  tin:  HKife-  iiu'iit   to  ii.ssigii  wiix  mistiiiiu'il  liy  the  f\  iilciiif, 

iiicii*  iiiiidc  liy  liiiii  fill-  llif  i-oiistiiictioii  of  the  and   j,;iivc  jiKl^jMuMit   for  llu-  plaintiH',  iiddiim- 

roiiil,  mil  H  liiiul  loiiiproiiiisu  ami  .sfttli'inriit  fill-  under  liic  power  j.'ivi'ii  in   tlie  rule  lo  incruuH- 

liiiclic'l    II  the  agiffiiicnt  upon  wliiili  till-  presi'iit  the    verdiil       interest     from     tiie    date    of    tlir 

aelioli    was    l)ri)ii;,'lit.      liy    tills    ajiieeiiieiil     tlie  n;,'reemenl    lielweeii  (h'feiidants  and  tlie  ( Joviin 

Caniida  Impiovuiiieiit  Conipaiiy  eonliaitedlode      lit,    uliirli   lesiilled    in    llie    ie>,'islatioii   umlii 

liver  to  plaintiir,  MO  soon  as  tiie  sameeoiiii)  h';,'aiiy  w  iiieli    it     heeaine     iiiipos.silile     to     |)erforiM    llif 

lie  issued  (to  whiih  end  tile  tworoiiipanies,     Imtli  loveiiant  to  deliver  the  liomls. 

lieiiiU  parlies  to  tlie  agreement  and  ih'feiidaiit.s  (/nynri/  v.  '/'/n   Ilti/ijiu:  ami  C'ti/ir  /liulm, 

in    tile  aiiioii,     i  oveiianted   to    use  eveiy    dili-  h'td/iruj/  ami  Con/  Co.  i  >  til.,  4   K.  iV  <  i.,  Ilili 

geiiee),eiglity  tlioii.sand  dollars  in  good,  Millieieiit  Allinned  on  appeal  to  the  Siijirenie  Couil  nt 

and  availalilelirst  mortgage  lioiids  of  said  Halifax  Ciinada,  /',//(  Fil'iiary,  ISS.'i.     I'as.  Digest,  i:i4 

and  Cape   llretoli    Hallway  and  (  oal  Coliipaiiy,         Leave  to  ajipcal  to  the  .liidicial  Co Itleeut 

whieliMliotildliea  first  lien  on  the  I'ietoii  l!raiieh,  die  privy  Coiiniil  refused,  Ain-il  :h-il,  ISSi;. 
— to  lie  lianded   over  Ky   i]\v   Uoniiiiioii  (loverii- 

meiil  in  aidof  theeonstriietl mi  the  Kastern  ■;.     HailiaKOS  — lilllbllll}'  Of  U  inilllU-i|liliit) 

I'Aieiislon,  and  also  oil  the  said  Hallliix  and  to  pay  damages  on  account  of  a  railway  niii- 
Cape  I'.retoii  jJailway  and  Coal  Company,  and  ning  wholly  through  another  municipality  in 
the  property  nieiiiioiied  In  the  Company '.s  Aet  of  the  Hanie  county  Construction  of  chajiter  70, 
iiieoiporalioii.  The  Halifax  and  Cape  llreloii  R.  S.  (3rd  series)  -Lands  for  stations  and  i hmI- 
Railway  and  Coal  Company  also  eoveiiaiited  for  «ay  for  the  Ivisteiii  Kxteiision  Railway  wen- 
thehaiiding  o\er  of  said  honds  liy  the  Canada  expropriated  under  the  provisions  of  ehaplii  T'l. 
Impiovement  Company  at  the  time  and  manner  of  ||ie  Itcvised  Stat  mes  (.'iid  series),  whiehueic 
ami  of  the  cliarai'li'i'  and  description  sllpulaled.  made  appliralile  liy  chapter  74,  of  the  Acts  uf 
'i'lie  agreement  conlaiiieil  covenants  and  coiidl-  |s7().  ( 'liaptci  7ll  proxldi'd,  among  ol  her  ihiniis, 
tioiis  on  the  part  of  plaintlll'as  to  the  |ierform  for  the  expropriation  of  lands  for  railway  |iiir- 
aiiee  e'  w  lili'h  there  was  no  dispute.  The  poses  and  for  compeiisal  Ion  to  the  owners  tlnirnf, 
hreaclies  alleged  were  that  the  defendants  fa'led  tiieamount  payaliie  for  luilldiiigs  destroyed.  I  iinl- 
to  delivei  till' lionds  as  stipulated,  that  they  ilid  taken,  etc.  Iielng  made  a  eoiiiily  charge.  Sir- 
not  use  due  diligeiiei:  as  stliuilated,  and  that  they  |ioiir)4  provided  that  the  ( 'iistos  of  the  cniinty 
had  entered  into  agreements  and  sought  and  pro-  should  deliver  to  each  party  a  eertillcale  of  llic 
cured  legislation  which  rendered  it  iiiipossilile  aiii'iuiit  to  wlilcli  such  party  was  eiitil  led  lunli-i 
fill-  iheiii  to  hand  over  lionds  of  the  cliai  cter  t  he  a|ipraisemeiit ,  which  should  autlimi/i'  sii'li 
slipulated.  defendants  relied  on  one  of  the  party  to  receivi'  I  he  ■iiiiouiit  with  interest,  ainl 
•Statutes  so  procured,  namely,  the  .Act  of  the  which  should  lie  a  charge  upon  the  eoiiiily  f"! 
Legislaliiif  of   \o\a,  Scot i,-i,  cap.  (i(i  ot    I.S7!'.  all    tlii'   moneys   payable  thercuiidci'   until  fully 

//ilil,   that  the  Aet  all'orded  no  defi'iiee  to  the  discharged.       Section     ">.")     pro\ldeil     tliil    tin- 

]ilaliitill"s  action  for  damages  for  the  iion-fiillll-  damages  appraised    and    estalillshed   .slmnlil  lie 

iiieiil  of  the  agret'inciit.  ,ipport loued  Ky  the  .Sessions  amongst  tlict'AMi- 

.\flcr  pleading  to  the  declarat  loll,  defendants  >hlps.  disti  icts   and   plai'es   in   each   county  ami 

added  pleas  as   to  one-half  the  amount     if  the  iHstriet,  and   that  the  proportion  of  each  t'i«ii 

iiioi  tgage  lioiids  claimed,  setting  out.  Ill  dl  I'ereiit  slii|i,  district  and  place,  should  lie  assessed  iiiinii 

forms,  that  plaint  111' had  assigned  the  same  to  the  their  inhaliilanls,  and  should  he  levied  ami  i"! 

( iovcrnnicnl  of   No\a  .Scotia,  and  given  Hon,   I',  Iccieil   and   paid  ovei'  on   the  same   prliici|ili' ;i- 

C,  Hill,  then  I'rovinclal   Secretary,   aulliorlly  to  county  rates, 

leeiive  them,  and  that  the  Canada  luiprov  eiiieiit  My  chapter  •_'!!,  of  the  .-Vets  of  IS-ld,  (he  Tnui 

Conipaliy  had  aceejited  the  order  and    liecome  sliiji  of  St.  .Mary's  was  set  oil' out  of  the  Ceiiiiiy 

liound  to  deliver  said  lionds  to  the  (ioverniiient  of  ( liiyslioro  as  a  separate  and  distiiiit  scssiniii! 

of  NovaScolia,  and  that  thesiiit  was  not  hroiight  ilisli  let,  and   liy  chapter   I   of  the  .Acts  of  \\\'. 

on  liehalf  of  the  salii  ( oivernnieiit,  or  with  their  the   district   of  St.    Mary's,  and   the   rein  liiiin:' 

consent.     I'laintitl' replied,  denying  the  fact  of  part    of  the  County  of  ( iuyslioro,   weie  |iliiiril 

the  iissigiiment,   alleging  that  there  was  no  eon-  under  separate    Municipal    Coiineils,   ainl   "in 

sideralion,  and  that   the  assigniiHMir  was  made  known  as   the   .Municipalities  of  ( liiyslioni  aiii 

sulijecl  to  a  eoiidition  that  there  should  he   no  St.  .Mary's. 

legislation  by  the   Legislature   of   Nova  Scotia;      'I'lie  lauds  approjiriated   for   the  luirpox'."  »' 

adverse  to  the  iinerests  of  the  plaintiff,  which  the   Kastern  K.xtension   Railway  lay  wlinlly  i" 


"'•■^                                            RAILWAYS.  ll.H 

III.'  MMriiripality  uf  ( luy.sl.nr.,,  ,u„l   the  .laliiiigf.H  //,/,/,  /,n-lhn;   tliat  lli..  oLjoiticii,  lliil    pUni 

Hri.;ip|,nuM.Mlai„l|.iii.lt..||i,.  |,n,,,rielnrs..f  ihu  iii.,1  .Mp,.,ili,itti,„i.s  «,.,.•  n..l  .'hi  tilr  iis  r,.,|uiir.| 

Im.ls  tiikeii,  liy  ni.siiis  ,,hii:  H»:s.'.-.siu.-iit  iiiipc.^iMl  |,y    «,.,tiun    47  ..t  cliaptur   7(»,   wlini    tlio   Mnl.T 

l.y  ilml    Muniiipality   iipnii  tlir  riUtpayris  rvsi-  piLssnl,  even  if  it  coul.l  l.e  nu.iu.l  l.y  I  lu:  p.iiti.M 

'''"'  ""'""  'I-      '"'•" ''ii«'^  "<•'■'■  tl'i'"  ti^k''"  I"  wlin.se  IiumI.s  ha.l  lifrri  .sei/f.1,  n.ul(rn..l  I,,.  ImIumi 

.nllrrt  frnrii   Ihr   M i.uicipality   of  Si.   Mary's  ,i  l,y    th..  Cnunty   iiutliuritk...    al    wli,,.s.,.    in.^taiir.. 

'""I"""""  "*'  ""■  "'•""•W«  •■"•  I'^'i'l.  |.ro,. in-s  l,a,|   I„.,.m  taken,  an,l  timt  tlu,  .sainu 

//•/'/,    lliiU    tin;   inhaUitaiits    .,f    the    plaiiililV  pi  iii.iplc  appli..,l  t..  llic  coMtfiitiun  timt  the  A.'l 

Miiiii.  ipality,   l,y  ivason   nf  iii,.ir   l„.ii.g  iniml...  cnnleiiiplut.;.!  ,,„lv  om-  appiai.si.iiioiit,  ami   tlmt 

tun. of  tl...  Cmnty  of  ( ii.y.sl.oio,  wcu  lial,!..  to  all    tl>,.  plans   an,l   .sprcilirations  for  tlir  «  holr 

III'  a-s(.'N.sr,l   in  ctMiiiMon    Willi  ilu;  otlirr  inlial.i-  lin.' nm>l  I,..  III,., I  l.ifoi,.  1 1,,.  oi,I,t. 

I.mts  of   the    County    for   tli..   payment    ,.f    tl„-  l„n  Xhm,,.,- n,„l  Mlnni,.-  I!,,;!,,-.,,/, 


il.ii.i 


-.)! 


1 


i:i'.,'t's,  liul   that    tlicie   was  no  lialiilitv  to   n  ■  .i  |>     ..  , 

tiiiMl   to  the   plaintill    Miiniijpality   any  portion  IC    |     -j'     -|,- 

i.t  tlie  aiMonnt  ailvancecl  l,y  thai  Mnnieipality,  , 
'I'll'  M iliiii-ijitililif  i,l' llmi^liiiiii  \.   'till   Miiiii. 

r'iii„r,i,,  'ufsi.  M,iri,\,  7  K.  \  (;.,  i.ii ;       ^'    "i"**'  '»"«•'*      lilabilKj  of  W.  ii  .1.  |{. 

-,■    I     ■!. '   |-.j'    t^'o.  to  help  niiiintiiin      Act.s  18(i8,  <•.  24-4th 

"     '"  Kev.  StiiU,  e.  21,  .s.  16;   cf.  5tli  Huv.  Stats.,  L-. 

fi.     Dniliagl'H      '2(>  Vic,    «'.  I.'{,  X.  S.  -  Jury    ^^'  '^^  -'^     •I'^'i  l^ev.  stats.,  c.  40,   .s.  15,  Hiimu  as 

iisse.isilig  oil  wroiiij  principle  Where  a  paity  •''^''  ^"^'-  ^tats.,  c.  42,  s.  l.'i— I'ndei  Acts  IstiS, 

iiiuiiii,' aparol  lie.nse  to  cMit  t  rees,  appeiileil  from  *-■■  -■*'  -^-  '^•'  ""'  ^^'inllso|    \  Annapolis  Kailua) 

ilie  appraisement  maile  nnilei-  the  .U.t,  '_'(•  X'ici..  '"nipaiiy  are  lialile  to  hu  assessed  for  the  main- 

1.111.    I.'{,   to  authorize    assessnjents   for    railway  '''"i'Hce  of  the  dyke   proteelin^'  the  mai'sh  over 

iliUiiages,   and  a  JLuy  on    that    appeal   assessed  "''i'li  the  track  of  their  road  passes,  owned  hy 

iLiniages  on  a  wiipuj,'  priiiLiple,  them,  section  111  of  chapter  '_'!,  Itll  Rev.  Stats., 

Idlil,   that  the  Court  would  set  aside  the  ver-  ''I'l'L^ '">-  '"I'y   to  Comity  as.su.s.sineiits  ;    and   re 

ilict  on  the  ^'round  of  excessive  damages  haviiJ:;  '"i"^''  "eed  not    lie  had  to  the  land  itself  under 

hiiii  },'iven.  section  l.">  of  chapter  4lt,  4th  itev.  .Stals.,  .as  that 

/'■'"<■'// V.  77(1  Coiiiifi/  III'  //ii/i/iiy^ -J  'ilviin.,  i\'2.  ■■^'■''i""   lefers  only  to  the  original  construction 

ot  the  dyke  where  the  owner  has  not  consenteil. 

I.     UaiUaKV.S->'tr(l  It.  S.,  l'«  10,  N,S.  14   ,11)  A'/-o"Vi    v.    Wimhui- ^   Ainmimlis  Hi, ;/„■„, j  Cn., 

Ohjections  to  as.se.s.smeiit  -'('lie  Aot  ineorpora-  -  l^-  ''^  C.,  4:{i» ; 

ims  the  company   for    the   eonstrtictioii  of  the  -('■  I... 'I'., -111.'. 
Niitaiix  and    Atlantic    Railway    provided    that 

till-  laud  re(iuired   for  the   load,   .tc,  should   lie  ».     GOVCrilinCIlt  KailHiiyS  Aft     .t«'ts  iHSl, 

tiirni:.hed   gratis   to   the    company,    who    were  c.  25,  H.  109,  Dom.     'i'he  Kominion  I  .ov.'rnnient 

.iiitli'irized  toexerci.se  all  the  powers  nece.s.sary  Uailw.iys  Act,  Acts  of   I.SSl,  c.  •_'.'),  s.  IIHt,  pro- 

tiilncatiiig  and   completing  the   railway;    and  vides  that  "  Xo  action  shall  lie  liroughl  against 

liiiM.,ii,p;uiy   was  empowered  to  Imild  the  loa.l  any  otiicer,  employee  or  servant  of  the  depart- 

"uii.ler  the  powers,  authorities  and   provisions  nient  (of  P.ailways  and  Canals)  foranything  done 

lit  this  Act,"  (the   Act  of    Incorporation)  ",ind  liy  virtue  of  his  otlice,  .service  or  employment, 

iil>ii 'if  chapter  70,  K.  S. ,  .Srd  .series,  '  Of  I'rovin-  except   uilhiii  three  niontlis  after  the  act   com- 

luiHioverninenl   Railways,' .so  far  as  the  .same  milled,  and  u|)on  one  month's   previous  notice 

i^iiiill  he  applicalile  to  such  railway."  in  writing." 

^  //•/'/,  that  although  .sections  44  to  .■)!»  of  chap.  iKfendants  entered  into  a  coiitrael   with   the 

I'l.   luiividing    tor    appraisement    of    the    lands  Clown,  represented  l.y  the  Minister  of  Railways 

1'ki.u,  and  a.s.se.s»ment  of  the  County,  were  not  and  Canals,  for  the  construction  of  a  l.ranch  of 

'\|iiessly  emhodied  in  the  A.t  of  Incorporation,  the  Intercolonial   Railway  at  Dartiiioutli,  N.  S., 

lliiy  Were  availal.le  for  the  piiriiose  of  making  .mil  in  the  prosecution  of  their  work   under  the 

llii'  ii|)prai.semeiit  and  as.se.ssmeiil.  contract  entered  upon  the  plaiiitiU"s  land. 

Il^lil,  Jnrllur,    that    the   olijection,    that   the  An  action  having  l)cen  hroiight  against  defenil- 

■'|i|'l"-''ti.,ii   for   a  jury    was    made   to,  and   the  ants  for  lireaking  and  entering, 

•"'111' granted   liy,  the  Court  on  circuit  instead  //</./,   that  defendants  were  emplojees  within 

"tii'liidgeof  the  Court,  and  the  ohjection  that  the  meaning  of  the  Act,  and  entitleifto  the  pro- 

llic  iv/«oi  was  not  tiled  within  thirty  days,  were  lection  given  therein. 

"I'viiitiMl  l,y  section  .V.'  of  chapter  70,  provhling  McDonald,  C.  .1.,  i/lMsinfhi./. 

'Ii'it  iMuceedings  should   not  he  set  aside  upon  Kkuiihi  v.  Oah  •*  '  >  nl.,  •>{)  S    S    R 

''"y...m.leclmicality.                                                  ,  (S  K.  &  u!'),  ao. 


1155 


RAILWAYS. 


11. ■)6 


10.    Injunction    Crown  cannot  be  sued  or  highway, uu.l  .piuj  nf  th.'  imuK' wns  kiih.l  i.yn 

enjoined     riiiintitl's   s(iii;;ht    to   fiijuiii  tlif   ilf-  iiassint,'  train. 

fiMi.iaiit.s  fn.iii  sfUing  the  n.a.l-lKMl,  ngiit  of  way,  ll<ld  ( i).     Tiiat   thf  daiisf  of  the   .\.t  (l;,u|. 

rails,  sli'i'piTs,  ligiits,   i.rivilogeH  and   fiaiichlM^.s  way    Ai't   |SS((),  i(M|uiiiiig  guards   at   cicsmi^,, 

.uiiia'ctc-d  with  a  liiif  of  railway  iK-twetii  Oxford  coidd   not   hu  construed   I..  rtMidfr  th.'  n.ni|,,iiiy 

and  New  (llasgow,  itf.,  and  to  si't  asidi'ai'on-  liahlc    to    owners  of   .attle   unhiwfully    on    iIr. 

veyance  in  trust  made  for  that  imriiose.  highway. 

it  iijipeariug  that   tiie  Crown  was  tlie  iirimi-  ,      C-'l.     Tliat  the  damage  not  having  heen  .lui,,. 

l)al  party  interested  in  tiie  eonveyiinfc  Hoiiglil  at   the  point  of  interseetion,   plaint i(T  wa-   not 

to  hedeelau-.l  void,  and  tiial  the  nijnneti.in  was  ahsolutely  preeluded   from   recovering,  hut   u,i> 

virtually  against  the  Crown,  snhjeeted  to  tlie  onus  of  sliowing  tiial  defeh.l,.m 

//./'/,  that  ol.jeetions  taken  to  tiie. juri-sdietion  might,  with  the  exeivise  of  ordinary  care  aii.l 

of  the  Court  on  the  grounds  that  the  Crown  was  diligenee,  have  avoided  the  miseliief,  ami  hiuiiiL' 

not  liahle  to  he  sued  or  re^traiiu'd  l.y  injunction,  faile.l  to  do  s,.,  the  verdiet  in  his  favor  eouM  iini 
and  that   plaiiitiUs"  remedy  was  l.y   petition  of  ,  stand. 


right,  ami  not  otherwisie,  must  prevail. 
Th  Moiilritil  mill  Eiiro/iiait  Sho)'  Lim 

lUiiliritij  Co.  <i  id.   V.  Shiriirl  il  ii/., 

•.'(»X.  S.  R.,  (S  l\.  k  {■'.),  11.'). 

11.    Injunction  sought  to  restrain  parties 

from  applying  for  legi.slation  — I'laintill'  claimed 
to  he  entitled  to  .'*S<>,(MM)  lionds  on  the  Kastern 
Kxtension  Hailway,  to  he  secured  niion  the 
rietou  Uranch  Road  in  the  event  of  its  heing 
transferred  to  the  defendant  eoinitany  as  a  suh- 
vention  in  aid  of  the  construction  of  Kastern 
Kxtension.  The  defendants  >vere  applying  for 
legislation  which  shouhl  |)rovide  that  in  the 
event  of  the  roa<l  not  heing  operated  to  the  satis- 
faction of  the  (iovernor-in-Couneil  of  the  Pro- 
vince, it  should   hecome   the  iiroperty   of   the 


Whiimuii  v.    ir.  il'-l.  Ji'iti/irii!/  Coni/i'iin/. 

(i  H.  ct«;.,-j:i. 

13.  Liability   for  negligence-  Riglit  ol 

railways  to  restrict  their  liability  -  In  iln' 
ahsence  of  legislative  enactments  of  a  restiaiiiing 
character,  a  railway  orsteam-hoat  cmnpany  iimy 
impose  such  terms  upon  the  public  as  to  extiiiin 
the  company  from  iesi)onsil>ilily  for  injury  lum- 
ever  caused,  including,  therefore,  gross  iicgli- 
geiiee,  and  even  fraud  or  dishonesty  on  the  pari 
of  their  servants. 

Doil'iOH  v.  Tht  llmii'/  Tniid-  It'y.  Co., 
j  2  X.  S.  ]).,  m. 

14.  local  Legislature- »I  Vic,  c.  104- 


I'rovince  free  from  incumbrance.  Plaintiff,  eon-  Bankruptcy  and  insolvency  -  Plaintitls  lui.i 
ten.ling  that  this  would  invalidate  his  bonds  and  security  on  an  undertaking  of  the  defend.uit 
wi..s  a  lireach  of  a  compromise  made  with  him,  company,  future  calls  on  shares  and  all  tolls 
sought  to  restrain  the  defendants  from  applying  and  money  arising  from  the  undertaking,  toi 
for  such  legislation.  OKt.tKJCJ    as    a    first    lien.      Messrs.     Rohtrl*. 

Hihl,  thai,a.s  the  purpose  of  the  concession  Lubbuek  &  Co.,  an  Knglish  firm,  hada  lieiK.ntlk' 
was  to  secure  the  construction  and  c.mtinued  rolling  stock  for  i;2.^(XK»,  and  there  wcical«.ut 
operation  of  the  road,  and  the  proposed  legisla-  CTO.fKK)  .lue  to  unsecured  creditors.  DettM 
tion  containe.1  a  proviso  that  the  trustees  of  the  '  dants,  under  c.  104  of  the  Acts  of  1«,4,  ot  tl.f 
b<.ndholders  shouhl  have  notice  before  any  for- ,  Legislature  of  Nova  Scotia,  intituled  -'An  .Vl 
feiture  of  the  road,  that  was  all  that  they  had  to  facilitate  arrangements  between  Kail«-iij 
a  right  to  expect,  and  the  plaintiff  was  not  en-  Companies  and  their  creditors,^'  (see  Acts  lS,o, 
titled  to  the  injunction  prayed  f..r.  page    1),  Hied   a   sche.ne,  whereby   preferential 

Ureiiory  v.  Canada  Im,,rorun,nt  Co.  ,t  at. ,         stock  to  the  extent  of  i;7r.,0<X)  was  to  be  ci eatf.l, 

R.  E.  U,  358.  '  to  be  a  first  charge  on  both  the  undertaking, 
i  calls,  tolls,  &c.,  and  the  rolling-stock,  and  tins. 
12.  Liability  for  defective  condition  of  or  the  money  coming  from  it,  was  to  be  appla<i 
cattle  guard  at  intersection  of  railway  to  the  payment  in  full  of  Messrs.  Kdlwts, 
with  highway  —  Cattle  unlawfully  on  high-  Lubbuck  &  Co.,  ami  certain  unseciired  dtlit* 
way— Onus  of  showing  negligence  in  such  specified;  stock  to  the  extent  of  t;r)O,0(KJ  was 
case  on  owner  of  cattle  —  Railway  Act  of  then  to  be  created,  to  be  a  sidiseqnent  cluugiHiu 
1880— Plaintiflf's  cattle  were  turned  out  upon  the  the  undertaking,  c!kc.,aud  rolling-stock,  and  « as 
public  highway  for  the  purpose  of  being  driven  to  be  issued  at  par  to  the  existing  debenture 
to  pasture,  and  while  there  unattended,  got  upon  holders  in  lieu  of  the  debentures  they  then  litM. 
defendant  company's  line  of  railway  in  oonse-  which  were  to  be  delivered  up  to  be  caiicelki 
(juence  of  the  defective  condition  of  the  cattle  Plaintiffs  obtained  an  order  for  the  appointnidit 
guard  at  the  intersection  of  the  railway  with  the  ;  of  a  receiver,  which  defendants  obtained  a  mlf 


157 


RAILWAYS. 


1158 


in^l  to  ir«i'iii.l.     Tl.f  lomt,  o,ii»i.l.iing  ihat  iliu  AuMH|»,li,s  l!iiilw„y  is  ,i  I'loviiuiiil  Hiiihviiy  with- 

ait  was  ii//m  rins,  ii«  it  ili'iiit  with  tiii'  siilijcct  in  tliu  riit;uniiig  ot  ilmptor  4.'),  Kevisud  Stiitiitea 

nl  iiiM,lv«iuy,  iiikI  fiirtiiiT,  tliiii  tiie  ncIiuiiiu  tiltMl  (.'liil  mtIl'sI,  "Of  tVumty  Assi'ssincnts,"  Mfc,  1({, 

was  iiiiiciisiniiilplc,  am  its   dlijuct  wiis   to  suciiru  mid  i.s  exeinpt  fniiii  ii.sisi'.ssiiiiiit  im<U'i'  tlif  Aft. 

MtliiT  ciiilitdiHiit  tlii'f\|)eiisc  of  (lcli(iitiiif  iiojd-  'I'lii'  tiiii'  test   (if  cxfiiiiit ion  ik'|)fiiil.s  tt|M.ii  tile 

ers  liavini.' a  first  lifii,   (liscjiaiyi'il  tlic  ink'  nisi  fai't,  wlicllii'i' tlit- mad  i.s  or  is  not  a  portion  of 

to  Kojinl  l.ut,  in  view  of  tliu  possiltlu  rfvirsal  tiic  I'roviiKial  Hailway. 

ol  till' jinliiinfiit  on  appoaj,  oti'ired  to  modify  t lie  '/'//'   Coiiii/i/  <,/ Anii't/io/is  v.  Tic   H'iiiil->or  d- 


(initr  appoiiiliii^;  tiie  receiver,  l.y  direeliiig  liini 
to  pay  tlieaniomit  to  lie  received  to  the  Heceiver- 
(iiiicial,  to  aliide  the  further  order  of  tiieCourt. 
Miii-'/'it-h  V.   Wiii'lior  ,1-  AiiiKijJo/lx  liuihray 

Co/ii/xon/,  H,  K.  I).,  \:\~  ; 


Aiiuii/iii/ii  /I'lti/imi/  Co.,  •_>  X.  ,S.  D.,  .•i<J7. 


18.    Kallway  .lets  of  Nova  Scotia  -  KaiN 

way,  appraisement  of  lands  for    Order  lo  set 
.•J  Cart.,  aO(S.    ''^''''''*  P™i-'««ding8  -Estoppel  -Judgment  not 
appealable— This   was   an  application  to   the 
Siijiruiiie  Court  of  Xova  Scotia,  asking  it  to  set 
asiile,  in  a  suniniary  niannei,  the  whole  appraise- 
iiii'iil   of  land  damages  awarded  to  he  paid  hy 
the  County  to  the  several  jiroprietors  of  lands 
in  I'ictou  County,  wlioselantls  hud  liecn  expro- 
priated for  the  line  of  railway  extending  from 
Xewtdasgow,   in   I'ictoii  County,   to  the  Strait 
of  Canso,  and  known  as  the  Kasterii  Kxteiision. 
This  apiiraisenieiit  was  niailc  on  the  assumption 
that  under  the  contfiict  with  the  Xova   Scotia 
(Jovernment  for  the  eonstruclion  of  this  line  of 
railway,  and  the  .Statutes  relating  tliereto,  and 
providing  for  theexjiroitriationof  lands  for  rii;lit 
< if  way,  &c.,  appraisement  of  damages  or  com- 
pensation   to     the     proprietors,    and     payment 
thereof,  the  right  of  way  was  furnished  to  the 
comjiany   free,   and  the  compensation  for  land 
damages  was  to  be  paiil  after  appiaiseinent  in 
tile  manner  prescribed,  by    the   Custos  of   the 
vaiious  Counties  through  which    the   line  ran, 
issuing  debentures  for  tlie  amounts  due  to  the 
proprietors,  which  debentm-es   were  to   be  le- 
deeined  by  means  of  local  taxation. 
10.    Xegligence— Conveyance   of   persons       Before  the  I'lovincial  (iovernment  of   Xova 
-Injuries—  I'laintitF,  a  passenger  travelling  by    Scotia  had  entered  int(j  the  contract  for  the  con- 
tlii' \\  iiidsor  *  Annapolis  Railway  from  Anna-    struction    of   the    Kastern    Extension  line,   and 
liiilia  to  Richmond,  fell  while  alighting  from  the    while  they  were  negotiating  therefor,  the  Xova 
iniiii  at  the  latter  place,  and  sustained  injuries,    Scotia    Legislature,    on   the    4th    April,    ISTO, 
to  recover  damages   for   which  he  brought  an    passed  c.  3  of  the  Acts  of  1876,  to  enable  the 
iictinii  against    tiie   Company,   cluirging    them    (!overnment   to  enter   into  a   contract  for  the 
with  negligence  in  respect  to  the  lighting  of  the    construction  of  this  line  of  railway,  and  made 
station  and  the  provision  of  safe  means  of  transit    provision  thereby  for  the  payment  of  a  subsidy 
"f  passengers   from   the   cars   to  the  platform,    and  grants  of  land  to  those  undertaking  it,  and 
The  evidence  on  these  points  being  contradic-    for  the  expropriation  of  land  for  the   right  of 
'"ry,  and  the  jury  having  found  for  the  defend-    way  for  the  line. 

Mt,  the  Court  refused  to  disturb  their  verdict,  i      On  the  same  date,  c.  74  of  the  Acts  of  1876 
t'linria  V.  ll'imlior  li;  Annapolix  IVy  Co.,         was  passed,  and,  in  order  to  incorporate  and 

3  N.  S.  1).,  493.  j  give  any  contractors  wliose  tender  for  construc- 

Sec    also    riRRirRS   I  *'""   ''"'"''*   thereafter   be  accepted   the  same 

.         ,  VAnnicna.    corporate  powers  and  jirivileges  as  those  men- 

:  tioned  in  c.  74,  e.  4  of  the  Acts  of  1876  was 

ii.    Provincial  Railways  exempt  from  passed. 

assessment -3rd  Rev.  Stats.,  c.  45,  s.  16;  cf.  \      By  sec.  36  of  c.  74,  and  also  by  sec.  6  of  c.  .3, 
3tli  Rev.  Stats.,  c.  58,  s.  5  — The  Windsor  &    of  the  Acts  of  1876,  certain  sections  of  c.  70  of 


IJ.   local  legislature    »I  Vic,  c.  104- 

riiilcr  the  provisions  of  an  Act  of  the  Legis- 
lature of  Xova  Scotia  '"to  fai'ilitale  arrange- 
inciits  between  Hailway  Companies  and  tiieir 
iicditors."  the  Windsor  and  Annajiolis  Hailway 
Coiiipany  projiosed  an  arrangement  whereby 
llie  so-called  H  delientuie  stock  of  the  Company, 
tliiii  bearing  interest  at  the  rate  of  (i  [ler  cert., 
«as  '•  abrogated  and  determined,"  and  in  lieu 
laereof  the  holders  of  said  stock  were  to  receive 
allotijiciits  of  new  stocks  thereby  created,  bear- 
iiii;  lower  rates  of  interest,  and  otherwise  dirt'- 
ciiiig  from  the  stock  for  which  tliey  were  sub- 
stitiiteil. 

H<ld,  Weatherbe,  .J.,  ({/'.■isKiitiiii/,  that  so  much 
"I  the  Act  as  was  necessary  to  the  confirmation 
lit  the  proposed  scheme,  was  witliin  the  legis- 
huivc  authority  of  the  Legislature  of  Xi>va 
>ciitia. 

/."'   Ii7/((^y;-  ,0  Aiind/io/is  A''//,  4  R.  (fc  (i.,  •,U'2 ; 

3  Cart.,  387. 


11.-)!)  RAILWAYS.  II 00 

Hl'il  K.  S,,  iiic  iiiriii|Miriiti'il  ill  thi'.-iL' I'liikctiucnt.'*  in  IsT'.l,  on  tiif  urmiii'l  lliat  tlu'  Halifiix  aiiil 
unci  iiiiiilu  ii|(|ilii'iiliU'  til  llii.->  liiii'  of  niilwiiy,  (  apu  liri'ton  Knilway  ainl  (  uaH  iiiiipiuiy  had  im 
wliiili  Houtiiiiis  iiniii'  pal'tiiiilaily  rolato  Id  tin'  legal  tAistfiiif.  Attt/i'  tlic  iiigiiiiH'iii  nf  tliiii 
iixiclu  i»f  uci|uiiiiig  lands  fur  tlit-  right  <if  way,  rule,  luid  liutDiu  jiidj;nit'nt,  chapti'ii*  (Iti  ainl  'u 
«tatii(ii»,  Sic,  tlu'  idKti'iliire  for  appiaiMiiig  dam-  of  tin;  Arts  of  ISTIt  wvrv  paxsfd  ]>y  thi'  Lr^jisjii. 
n^fs.  and  ihu  liiodf  of  asscs.iiiij,'  tiie  \alinii.s  tiili'  of  Nova  Suotia.  After  licai'ili},'  the  (  uslcm 
('oiintieMfortliepaynieiitdf  tlieaiiiountsiiwiirded.  of  the  Coiinly  \>y  eoiiii.iel  liefore  a  Loniiiiitlii' of 
C.  70  of  :trd  It.  S.  e.mipri.ses  in  eonsolidated  ''"-'  Legi-slatnie,  two  .■^eetioiis  of  the  A.I  were 
form  all  ena.tnieiits  in  foreo  in  N-iva  .Srotia  at  i"''!*^^"'  '"  '''i'  i'Ufix'Ht  of  the  Counly. 
that  date,  relatinj,'  lo  I'rovineial  Itailways.  For  ''''i^'  Supreine  Cmrt  of  Nova  S.^otia  h,/,l  tint 
convonienuf,  the  various  railway  eonipanies  in  the  Coiinty  of  I'icton  was  oMopped  hy  tlifse 
Nova  Scotia,  siieli  us  the  Wiiid-sor  una  Annapolis  Statutes  |,,si  mentioned  from  disputing  the  up. 
Hallway  CoMipany,  the  Wc.nern  Counlies  Kail-  pmiseiiient  of  the  lan.ls  taken,  and  l,y  tiie  i>Mu. 
vay  Company  (<"-.  e.  ;U,  A.Ms  of  IMI.S;  e.  SI,  ..f  .leUeiitures  l.y  the  County  to  parties  t.)  wimm 
A'As  of  JSTII),  have.in  ..l.taiiiiiig  iheir  Aets  of  .lama-es  In.lI.een  awar.le.l  f..r  the  laii.K  appn. 
ln...rp..iati.m,  availe.i  themselves  of  similar  pi  iate.l  t..  the  railway,  .s.miu  of  which  ha.l  l.eoii 
elauses  fr.mi  .-.  T'l  ..f  :ir.l  U.S.,  l.y  exjiress  enaet  •  in.l.Plse.l  to  third  J.arties. 
inent.   without   repeating   them  "in    tiie    A.t    ..r  /"  '■    f"'""  llx^hnui  Dmnn.,^, 

jirovi.ling  .itiier  m.iihinery  for  the  expropriati.in  ''•  '^  ''•  ^'''' 

of  lan.ls  an.l  the  aseertaining  of  laml  tlamages.  ^^^^  „^,^„„/  /„  H,.  S,ii„;m>  (uiiri  nf  fm.n.l;, 

When  tlie  4tli  series  of  tiie  l!ev.  Stats,  was  ^ij^  ,|^,^,  ,l_^,  j,,,!^,,,,,.,,,  ,,f  tj,,.  (outl  h-Lm 
j.repare.l,  certain  Acts  of  the  I'rovinee  n..t  re-  ^^..^^  ,|,,^  ,„,^.  f,.,,,,,  „,|,j,,||  ,^„  ,^|,|„.,,|  „,,„i,|  [j,,^ 
enacted  were  continue.l  in  torce,  and  am..ng  ti„.,.i.  |„.i„;^  „..  tinalily  al.oiit  tiie  or.lcr  made  l.y 
them  so  much  of  c.  7(»of  tiie  ;trd  series  as  was  ^^^^_  (hivf  Justi.e  ..ftiie  Cmrt  hel.iw  in  is", 
tlierein  specilie.l  (>-.  the  Act  I.,  jin-vnle  f..r  tlie  ^^.,^1^.,^  ^^.^^^  ,^^|,,^,  ,|,j^  appeal  .s.Migiit  f.  set  a>i.l>'. 
I'ul.liciitioii  ..f  tlie  C.n-^.didated  Statutes,  .•((llli  //,„./,.,„   v.  /fii/!j(i.r 'i,„l  ('<!/„  Jir,i,„i  It'uh'-nij 

April,  IH7.S,  4tli  H.  S.,  page  ■_')-  „„,/  f„„/  (\„i,/,nii!/,   ::ith  OrloUr,  ISS'i, 

Mr.    Harry  Alilmtt,  having  entere.l   into  the  Cas.  digest, '.Ui 

contract  with  the  Covermneiit  for  the  constrm;-  ' 

tion  of  this  line,  sought  uii.ler  c.  4  ..f  the  Acts        ^q^     KallWl)}'  CrOSSllIK     Obllj^UtlOII  of  COni. 

of   )   70,   inorp.nation  ami   the   lienelit    of  the    pany  running  trains     I'laintitt' was  lea.iing  liis 

provisioiLs  of  c  7-1  of  Acts  of  lH7(i,  and  olitiiine.l    i,,,rse  ul.mg  a  jmlilic   ihorouglifare   wliicli  Wii.< 

a  ceitilicate  of  inc.iriiorati.iti  under  the  name  of    ^'rosseil  liy  the  track  .>f  defen.lants'  railway,  iiml 

the  Halifax  an.l  Cape  llreton  Railway  ami  Coal    \^.^,[  leache.l  a  ii.iinl  a  few  feet  distant  fr.iiii  tht 

Company.  crossing  when  an  engine,  under  the  cuitrtil  nf 

The  Company  was  organized  un.ler  this  Act,    defen.lants"  servant,  aiipr.iache.l    sud.lunly  ami 

and   tl:c   riglit   of   way    having    huen   olitained    fi.ighteiie.I   the  Imr.se,  which  li.dte.l,  ami  tlinw 

limlei  the  Statutes,  the  .lamages  were  ajiprai.ie.l    jdaintilV  in  fr.uit  .if  the  engine,  liy  whicii  lie  wiis 

an.l   the   w.irk   of  constriictiou   hegaii   an.l    wa>    luii  over  and  seri.uisly  injured.      I'lainlitl'.ii.l  ii.it 

carried  on.  see  .ir  hear  the  train  until  it  was  close  hesidu  iiim, 

In  I S77  an  order  was   made  liy  the  (.'liief  .lus-    n,|,j  |n^,|i,-d  no  whistle  or  hell.       The  .lefeii. lints 

tice  of  the  Supreme  Court  of  Nova  Scotia,  on    diil  ii. it  plea.l  nor  attempt  t.)  i>rove  any  legislativi' 

the  jietition  of  a  numlier  of  the  property  owners    .i,|ti,ority  to  cross  the  thoroughfare  in  .|iii'tti.iu 

whose  lands  would  lie  affected  liy   the  Imil.ling    ^^iil,  their  railway  and  its  loc.imotivesan.l  imiiis. 

of  the  railway,  directing   the   IVothonotary  of    D^.tVuilants  were  re.piire.l  hy  Statute  to  iiect  a 

the  County  t.i  draw  an.l  strike  a  jury,  under  the    ^varning  post  at  crossings,  an.l  to  cause  ,i  hell  to 

pr.ivisions  of  c.  7t>of  'Md  K.  S.,  to  apprai.se  the    ],^,  ,.„„g  „i- whistle  to  he  s.mn.le.l  oiiliiiii'iusiy 

laml  and  property  taken  f.ir  the  imrjiose  of  the    f,.oiii  eighty  rods  iieyond  the  crossing.     Neithfi 

Eastern  Kxleiision  Railway.  re.iuiretnent  having  lieen  eomplie.l  with, 

In  1H7S  a  rule  visi  was  taken  to  set  aside  the        Jfilil,  that   defen.lants   were  guilty  .if  ik'^'i 
whole  proceedings,  but  a  year  later  it  was  dis     geiice. 

charged   .m  motion  of  the   party  \\\w  had  oh-        Ritchie,  . I.,  f//''.«-»^(/.'/ as  to  the  facts, 
taine.l  it.  liuhi}-t'<oii  v.  Tin  Ilnlijhx'  Cmtl  Co-, 

A  (|uestion  having  lieen  raised  as  to  the  valid-  -<>  N.  S.  R.,  (S  It.  A:  •■■).  •'!' 

ity  of  the  incorporation  of  the  Coini)any  un.ler 

c.  4  of  the  Acts  of  1870,  l.y  the  L.jcal  Covern-  20.  WllldSOr  ii  AniiapOliS  KllllWaj  t'O.' 
ment,  and  legislation  heing  alniut  to  be  pas.sed  Appraisement  of  lands  —  Funds  to  pa.v - 
to  remove  such  (l.iubts,  another  rule  was  obtained    I'laintiff's  property,  with  that  of  many  "tlll■r^ 


11(11 


RAILWAYS. 


11G2 


tt;is  tiikcii  fnr  iiiilwiiy  |iiii|iii.s,.h,  iiinl  an  a|i|iriiiMr- 
iiii  lit  wan  iimilu  iiihU'r  t'liajitiT  41  of  tin.'  Ai'tn  of 
|h77.  'I'lic  ilcfcmlaiit,  who  wan  CiiNtoN  cif  iIk- 
('(iiiiity,  fiinl  two  otlifi'  .[iisticcs,  wiTt'  appointnl 
liy  tlic  ScHHJoiiH  II  t'Miiiiiiittt'c  to  carry  out  tlu' 
|ll■(lvl^^ioll«of  tliu  Ai.'t,cliii|itfr4'_',  of  Is77,  for  tin- 
lidrrowinj,'  of  money  to  jmy  thi..  Iund  ilaiiia).'tn. 
Tliiy  airiin^'cil  witli  tlic  I'liion  liuiik  for  tin- 
iiK.iiiy,  at  tlu:  rati!  of  intfrt'Mt  liniiti-d  in  tlu'  Act, 
liiit  Moiuf  ik'Iiiy  occurring  Ituforo  tlio  iiwiinlH  wci  »■ 
tilfii,  till'  ratu  of  iiitcri'st  rose  no  tliiil  llicy  were 
iiMii,'(il  to  suliinit,  to  a  iliMcomit  of  two  ami  a 
hiilf  per  Cfiit.  on  the  Coiiiity  ilelH'iituii's.  at 
wliirli  rate  tiicy  toojt  the  money,  wiiicii  was 
|il,ictil  to  till!  joint  creilit  of  tlie  CustoM  anil 
'I'liM-iiier.  For  I'oiiveiiieiiii'  in  payiii;,'  it  out,  it 
was  iliawn  )ty  a  joint  ilieck  ami  jilaeeil  i.)  tlie 
iTiiJif  of  tlic  ilefeliiianl,  the  Ciistos,  wlio  pin- 
ciTiJiil  to  pay  llw  aiiuiiiiits  awanleil,  ileilurliiiL' 
tlirtwoMiiila  lialf  per  rent.  A  Ipalance  reiiiaiiieil 
after  payini.'  oil'  all  tlie  claimantB,  wliicli  tlie 
iKliiidaiit  paid  over  to  tiie  County  liefore  tl  is 
:iitiiiii  was  liroiigjil,  in  the  Magistrate's  ( 'oiii  t, 
til  lerover  from  defendant  the  two  ami  a  iialf 
IKTiiiit.  The  CiMiiity  CiMirt  .IndLTe,  on  appeal, 
IliM  lliat  tlicre  was  iiii  privity  nt  rulltluet  lie- 
tHirii  dit'eiidaiit  and  plaintill',  ami  iinii-siiiled 
tile  plaiiitiir,  lait  granted  an  appeal  under  seetimi 
II  lit  iliapter  !»,  .Acts  of  i,s7S. 

Tile  Court  held  that  tlie.)ild).'e  liiid  power  to 

t'liiiit  till'  appeal,  Imt  disiiiissed  it  on  the  merits. 

Thonin^  V.   I!(iij,  •_'  H.  ^t  < :.,  1. •).">. 


-.*1.    Windsor  Branch    B.  N.  A.  Act,  ISIU, 

3.  108      Power  of  Dominion    Legislature  —  ! 
(Ill  tile  hearing  of  this  cause  on  tin.'  evidence  an 
iilijertiiiii  was  taken  on  liehalf  of  tlic  Altnriiey- 
•  iiiitiai  of  Caiinda  tiiat  the  agreeiiieiit  of  Scpieiii- 
Iw'i.  Is7l,  priividing  that    the  company  siiuiiid, 
with  ceiiain  exceptions,  have  the  exclusive  use 
iif  tlie  Windsor  llranch,  with  station  iiccomiiio- 
iliitimi,  itc,  and  the  use,  as  far  as  rei|nii'ed,  of 
till'    Trunk    line    from     Windsor    .lunclion    to 
Halifax  (\ii    /(.  .1'^  .ffw  j,  was  not  liindiiig  mi  the 
I'liiiiiiiion  liovernnient,  heciinse  the  railroad  froin 
Halifax    to    Windsor   was    a    ])rovincial    jiuldic 
wiirk,   and    as    such    passed    to    the    Dominion 
•'iivi'iiiiiicnt   under   the   H.    X.   A.   .■\ct,   not   as 
iiriliiiaiy  Coveriiinent  jirojierty,  Imt  subject  to 
ii  tnisi  which  tlietiovernment  was  linund  strictly 
t"  fulfil  and  which  reijuired  that  it  should  he 
wiiikfd   for   the   public    benefit    in   accordance 
Willi  the  terms  of  the  Act  uniier  which  it  wiis  ' 
'"lilt  and  subject  to  tlie  engagements  which  had  j 
'wen  entered  into  by  the  Provincial  fJovernment  ' 
■Wil   Legislature,    and    that    the    terms    of    the  ■ 
i'gri'i'iiu'iit  did  not  carry  out  this  trust,  as  by 
'lie  pnn-isions  of   the    Provincial  Act  of  18G7,  j 


embodying    the    contract    lietweeii   the  (ioverii- 

mentaliil  the  promoterH  of  the  plaintitle paiiy, 

it  was  mutually  agreed  that  jirior  to  the  opening 
of  the  road  a  tratlic  arrangement  should  be 
made  for  the  mutual  use  by  the  (iovernment 
and  the  comjiany  of  their  res|>ective  lines, 
which  stipulation  had  not  been  carried  out  in 
the  agreement,  lis  there  was  no  provision  in  it 
for  a  tratlic  arrangement. 

//'/(/,  that  the  agreement  embodied  all  the 
essential  provisions  of  the  original  contract,  and 
that  the  Coveimneiit  not  having  insisted  on 
having  running  [lowers  over  plaintitl's'  road  was 
no  reason  why  plaintitrs  sliontd  be  deprived  of 
ninning  powers  over  the  Halifax  and  Windsor 
line,  but  that  on  the  other  hand  the  ground 
stated  applied  with  great  force  to  the  action  of 
the  Dominion  Legislature  under  the  .Act  of  |s74, 
iiiasiiiucli  as  the  Dominion  <  Iovernment  having 
taken  the  road,  under  the  provisions  of  an 
Imperial  Act,  clothed  with  a  trust,  the  Domi- 
nion Legislature  was  thereby  restrained  from 
acting  in  violation  nf  that    trust. 

I'lii    WiiiilsDi'  mill  . {null iiiilit  Hnihritji  Co. 
v.     I'lh    tl'i  st,  rii  (,'iiiiiit'ii  t  I'lii/iriii/  (Jii., 

it.  K.  D.,  :is:\. 

Oh  ii/i/i'ii/  III  l/ii  Sii/ii' nil  ('niii-/  III'  Xnrn  S<-(il'(i, 
II' III,  that  the  agrecmciil  was  nevcrt  lieless 
valid  and  binding  upon  the  Doiiiinion  (inverii- 
nieiit,  the  public  interests  having  been  proteited 
by  its  provisions  to  the  ^,^tisfactioll  of  the  (oiv- 
ernnieiit. 

ir.  .t'.l.   /I'lilii-iii/  Co.    v.    ir.  C.    Iltiilmiii  Co., 

•2  I!.  .*c  C,  -JSO. 

()/(  ii/i/i<ril  to  till    /'rill/  Crmiiril, 

I'lidcr  the  I!.  X.  A.  Act,  KS(i7,  s.  ll»S,  read  ill 
connection  with  the  .'hd  schedule  thereunto,  all 
railways  belonging  to  the  Province  of  Xova 
."Scotia,  including  the  railway  in  suit,  passed  to 
and  became  vested  on  the  1st  duly,  l.SUT,  in  the 
Dominion  of  Canada;  but  not  for  any  larger 
inteiest  therein  than  at  that  date  belonged  to 
the  Province. 

The  railway  in  suit  being,  at  the  date  of  the 
statutory  transfer,  subject  to  an  obligation  on 
the  part  of  the  Provincial  Covernment  to  enter 
into  a  tratlic  arrangement  with  the  resjiondeiit 
company,  the  Doniinion  (iovernment,  in  pur- 
suance of  that  obligation,  entered  into  a  further 
agreement  relating  thereto,  of  the  'il'nd  of  .Sep- 
tember, 1871. 

(Jiiatri'y  whether  it  was  iil'ni  rin-.i  of  the 
Dominion  Parliament,  by  an  eiiactinent  to  that 
effect,  to  extinguish  the  rights  of  the  respondent 
company  under  the  said  agreement. 

15nt,  hilil,  that  Dominion  Act,  37  Vic,  c.  Ki, 
did  not,  iipi,n  its  true  construction,   purport  so 


1103 


RAILWAYS. 


1104 


to  ilc),  and  iiUliciuuli  it  uulliori/<'il  n  tniiinfcr  I'f 
(he  railway  to  I  In'  a|>|)i'iliiiit,  it  iliil  not  iiiiut 
Kuoli  tiaiiNfiT  ill  (Icmpitioii  of  tlir  ii'Npoii.li'iit'.'* 
ri^litH  iiikIit  till!  anii'i'inciit  of  tin-  '.'•Jiiil  of  Si'|i. 

tclllliiT,   IH7I,  Of  otliflwiMi', 

Tki   H'l-'iirii  Coiiii'in  I'liilii-iii/  Coin/i'iiii/  v. 

Thi    Wiinhnr  d-  Alliia/Mi/ii  Itiiiliniii   Co., 

7  Aiip.  (.11..  ITS;  r.l   L.  .1.  I'.  ('..  «; 

Hi  ]..  '1'.,  :r.i  ;  1  Curl., ;«»:. 


2-i.    Windsor  Branch    nhpute  m  lo-Ile. 

murrer  -Legislative  authority     I'liiiiititln' liill 
Kot   out    the   Aft    of     till'    I,i'>;i«latiiiv   of    Nova 
.Scotia  (lS(i."i.  <-'.  i:i),   provicliiiK  for  the  I'onstriif- 
tioiiof  the  WiiiilHoi  iiinl  Aiiua|)oli.s  l{ail\\ay  ;  the 
ai,'rt'fiiieiit  of  Novtiiiln-r  •_>•.',   IStUi,  lietween  the 
Coininissioner  of  liailwiiyn  for  Nova  Sootia,  and 
yU'HHVH.  I'niuhard,  liaiiy  \-  Clark,  for  its  con- 
stniftion,  loiitainiiig  a  stiimlalion  Miat  prior  to 
tlie  opening  of  the    road,  a  tratlie  arrangement 
should    lie    made    between    the    parties    for   the 
mutual  use  liy  the   I'rovinee   and  the  eompaiiy 
of  their  respeetive  lines  of   railway  from   Hali- 
fax to  Windsor,  ami  from  Windsor  to  Anna))o- 
lis;    the    Act    of    the     I'lovimial     Legislature 
incorporating    the    eonipany    (IStiT    e.    H(i),  of 
whiili    the  Aet   lirst   mentioned  and  the  agree- 
ment   in    ))ursuaiiee    thereof   were  made  a  part 
anil  the  agreement  of  the  <  lovernment  of  (.'anada 
(successor  to  that  of  Nova  .Scotia  in  relation  to 
the   line   from    Halifax   to  Windsor),    with  the 
plaintiHs,  made  .Sejitemlier  •_»'_'nd.  1S71,  provid- 
ing that  the  company  shouhl,   with  exceiitions 
not  touching  the  matter  in  hand,  have  the  ex- 
clusive use  of  the  Windsor  Hramdi,  with  station 
accommodation,    etc.    anil    the    use,    us   far   as 
rc(|uired,    of    the    Trunk    Line    from    Wind.sor 
.) unction  to  Halifax,  the  company  to  pay  over  to 
the  Covetnment  monthly  (me-third  of  the  gross 
earnings  of  the  gf)vernmeiit  lines,  the  agreement 
to  continue  twenty-one  years,  then  reiiewalile, 
hut  to  terminate  in  the  event  of  the  company 
failing  to  operate  the  railways  between   Halifax 
and  Annapolis.     I'lainlitrs  allegeil  that,  having 
certain  eiiuitaltle  claims  against  thetJovernment 
of   Canada,    they  allowed    their   payments  due 
under  the  agreement  of  Septemher,  1871,  to  fall 
in  arrears,  Imt  paid  them  oil' in  Novein'ocr,  1S72, 
after  which,  under  similar  circumstances   they 
again  allowed  them  to  fall  in  arrear,  in  cnnse- 
(jueuce  of  which  the  (iovernment  threatened  to 
resume  possession  of  the  road,  unless  iiayment 
was  macle  on  or  before  October  1st,  LST.'l,  which 
period  was    afterwards  extended  to  November 
1st,   187.3;    that  on    the  'J-ind  October,   187.3,  a 
Minute   of   the    Privy  Council   of   Canada  was 
passed,  of  which  no  notice,  otiiciul  or  otherwise, 
was  given  to  the  plaint itfs,  by  or  on  behalf  of 


t  he  <  iovernment ,  reciting  that  the  company  owed 
the    (Jovermnent    !?;«», INK),    and    liad    fulled  t.) 

operate  the  Windsor  liram  h.  and  r mini  ii.iuii; 

that  the  (loveninieiit  shouhl  iunni'diiiteiy  piu 
ceeil  to  operate  the  load  between  llalilax  oiid 
Windsor;  that  afterwards,  on  the  iMlli  .Imic, 
|h7."),  un  agreement  was  entered  into  beiwrcn 
Her  .Majesty  the  (^Ueeil,  represented  by  the 
.Minister  of  Public  Works,  and  the  pliintitl 
company,  whereby  the  company  agriid  tn 
change  the  gauge  of  their  railway  and  rele,i-c  all 
eiainis  against  the  Oovernment  to.luly  1st,  hT.'i, 
and  in  considiratiou  thereof,  the  lelits  alN  i^.d 
to  be  due  to  the  ( Iovernment  by  tiie  coiupiiny  ii|) 
to.lanuary  1st,  l87.'i.  «ere  extingnislieil.  and  il 
was  declareil  that  the  agreement  under  wlmli 
the  comjiany  hehl  and  worked  the  liraiicji  Luu- 
continued  in  full  force  and  etVect,  except  »^  tliii^ 
moditied.  Plaiiititl's  alleged  that  they  hail  .  uii 
tinned  in  possession  of  said  Windsor  I'.iaiuli 
until  August.  1877,  when  the  Superintendent 
of  ( Iovernment  l^ailways  took  forcible  pusses 
sioli,  and  prevented  them  from  using  the  r.nim.li. 
The  road  was  afterwards  transferred  by  tiie  li-i 
minion  ( Iovernment  to  the  defendants  ou  tin' 
•J4th  Septemlier,  1877,  such  transfer  being  base! 
on  the  authority  of  the  Dominion  Act  ot  |s74, 
e.   1».     Defenilanta  deimirred  to  this  writ. 

Hn'il,  that  by  the  agreement   of   Septeiuhei', 
1871,  the  Windsor  llranch  was  in  fact  leased  Id 

the  plaintiH's  for  twenty-one  years,  that  tlit ly 

event  upon  which  the  (Iovernment  was  autimr 

ized  to  reenter  was  a  failure  to  operate  the  nwl 

lietween  Halifax  and  Aniiiiiiolis  ;  that  the  state 

inent  in  the  Minute   of   Council  that  pliintiH's 

I  had  failed  to  operate  the  road  could  be  coiitm 

verted  in  this  suit,  and  that  without  U'uking  tlu 

,  Crown  or  the  ( Irivernment,  represented  by  the 

Attorney-deneral   of   Canada,    a   jiarty   t"  tin' 

suit  and'  having  been  denied  by  the  plaintiff.-, 

must  be  taken  for  the  purpose  of  the  argument 

on    the  demurrer  to  be  untrue;  that,  iiidr|ieii 

deiitly  of  the  Act  of  1874.  the  only  inteiest  that 

,  coul.l  be  iransfcrred  to  the  defendants  by  the 

(Iovernment  was  tiie  (iovernment's  reversionary 

i  interest  in  the    road,    .subject  to  the  i.laiiitirt> 

j  lea.se  ;  that  the  Act  of  1874  did  not  directly  ami 

i  in  terms,  divest  the  plaint itVs  of  their  rights,  ami 

must  be  held  as  intended  simply  to  .sanction  tiie 

I  transfer  to  the  defendants  of  such  interest  as  the 

i  (Iovernment    itself  had   in  the    road;   that  the 

■  plaintiffs   had  no  adeiiuate  retnedy  at   law,  liv 

v,vV./arm-i  or  petition  of  right,  as  they  did  nm 

seek  redress  against  the  Crown  or  the  ( ioverii 

ineut  of  Canada,  and  it  was  not  in  the  power"! 

the  (Iovernment  of  Canada  or  the  Crown  tngive 

them  the  relief  sought  for,— nor  by  ejectment, 

because,  assuming  that  ejectment  would  he  m 


iir,.i 


RECEIPT. 


iiGd 


i,>|.r,t  t..  th.'  lights  I'laiinuii  i,y  piaiiititr^  t-  2.  Not  concluitive    PlalnllirN  hired  a  vPMPi 

„|Mi;it.'   tlic   niihviiy   iiiMirr   tlif   iiKiffiiiriit    of  to  N.  *  ( '...  Ic  .iinv  u  full  ciii^o  tV..iu   Kalitax 

IsTI,  |)laiiitil!«  (.•iMilil  lint  l.y  tliikl  lu'tiiMi  nlitititi  ic  r,ivcr|>.Mi|,  tlir  fivijjlit   to  Im-   t;H:.(t,  im,!  tlu' 

mv  iclii'f  ill  ifMiif.t  to  (lir  oii^iiml  ugiv.'iiiciit  i.luiiitill'rt  to  livku  tlu)  fioiKht  uinl  |>riiim«f.  iiih  por 

with  tlic  IVnviiiciiil  (Jovfriiiiuiil  m  to  iiiiiiiing  l>j||^  of  Iiulinj;,  to  tlu'  fxt.'iil  of   Csr^t),   in  tiiml 

puMfis.  anil  tliiH  gromi.l  ..f  ilnniuir.T  l.fing  to    payin.'iit  tit   Halifax,  willioiii   ifLimr ii  N.  * 

thr  vvlinl,.  writ,  fvrii  if  a|>|.liial,l..  to  pail  of  thf  Co.,  wlio.sc  iDHpon.sil.ility  wan  to  ueimu  m  noon 

Hill.  iiiiiMt  III'  ovfiiulcil,  UM  it  coilM  not  111'  gooil  an  thti  kooiIh  welt)  on  lioaiil,  the  vcsxel  Iml.liliKa 

11,  put  anil  liail  in  part.  lien  „n  tlio  eiugo  for  frei^lit.      'I'lie  -Ivluieiiey,  if 

U'iiiiliiir  mill  Aiiiifi/iii/i'i  llnihi-tni  v.  any,  wan  to  lie  paid  liy  \.  it  Co.,  anil  tlii'  i'X(e»» 

ll'i  1^  CH  Ci'iiiiiii^  /I'liilii-di/,  K.  !•;,  I).,  •.'ST.  over  t'M.'iO  to  lie  proviileil   for  liy   nia!Hter'.s  ilraft 


(hi  'iji/iiiil  >i>l/ii  Sii/itiiiii  ('niii'l  ti/'  Xniii  Siiitiii, 


a),'ain.<(t   freight.     Of  tlie  freight  on  the  earj,'o, 
f.'J.VJ  waM  payalde  liy  third  per.sonn,  and  t'ti'.t.')  7h. 


//./'/,  /■»/./•  n/in,  thai  the  po«er  of  leKiNJation  Mil.l.y  N.^t  Co.,  makiliK  in  all  fl.<»47  7h.  Hd.  I.eing 
ii!<  In  the  Windsor  llraneh,  ,.  .„  the  line  of  rail-  an  exee.ss  of  flit;  Is.  ,sd.,  for  whieli  the  iniiHter 
way  hetween  WiiidMor  and  WindNor  -liiiation  iiecopted  a  draft  iiayaMe  at  the  otiico  of  defend- 
l«lniig.>(  exoliiHively  to  the   I.egiHlature  of  Nova    ant,  who,  in  this  liansa.tioii,  wan  the  agent  of 

Sn.tia,  under  Ihelfindsee.  of  the  IJ.  \.  A.  Art,     the    plaintitK       The    a ptaiiru    WilH    indorsed 

:<uhMr.  Id,  that  road  lieing  a  local  work  and  liefoie  maturity  to  P.  &  I!.,  for  value.  At  I.iver- 
noi  ruining  within  any  of  the  ela»«es  excepted  pool  the  master  gave  an  order  in  writing  to 
l.y  the  .section  r.'ferred  to,  and  therefore  the  Ai't  defemlant'n  houMe,  to  pay  the  draft  out  of  the 
"f  the  Dominion  I'arliament,  l,H74,  cap.  Ill,  i.s  freight  tir.st  collected.  Defendant  only  admitted 
>iliri,  ririi  (.lames,  ,).,  ill,.-.,  ,ili,i<i  a.s  to  this  having  collected  f.">l7  «s.  (»d.,  of  which  he  paid 
•""""•  _  to  the  captain   t'.'t.'i    l.'is.  7d.,  the  lialance  lieing 

Itit.iiie,  K.  .1.,  adhered  to  the  views  emiiodied  accounted  for  thus  :  "  Dislmrsemeiits,  t'JSl  4s. 
ill  the  judgment  appealed  from.  d.l  ;  ,,iid  acceptance  of  X.  .t  Co.,  fl!)7  7s.  Sd." 

nii,'l'<or  ,V  Aiiiin,.o/ii  /;in7ir„i,  Coni/irtii!/  v.  '!'},„   captain,   after    learning   the   items  of   the 

llVifirii  Coiiiifii.>  llailii'tiy  Coiii/fiii!/,        acoount,  some   of  which    were  professedly   iin- 
.'{  K.  it  ('.,  ;{7l>.    settled,  heing  stated  as   "aliont"  the  sums  set 
down,  gave  a  receipt  for  the  t'.'J.")   l.')s,  7d.,  hut 
i  shortly   after   wrote   defendant,   disputing    the 
I  correctness  of  the  account,  and  expressly  notify- 
ing the  defendant  not  to  part  with  the  t"l!l7  7s. 
Sd.  deducted  from  the  freight. 
I      //«/'/,  that  the  receipt  could  not  lie  relied  on 
I  as  conclusive  in  an  action  liy  the  plaintitf  against 
the  defeiiiUmt  for  money  had  and  received,  and 
that   the  items  of  disliur.senients  could  only  lie 


KANSOM  - 
Si'  PKIZE. 


R.*TE- 
fff  ASSESSMENT. 


RECEIPT. 
1.  Effect  of,  in  evidence-The  body  of  a 

(lied  acknowledged  the  payment  of  the  piircha.se 
money  in  the  usual  form,  and  n,  receiiit  therefor 
signed  hy  plaintiff  was  also  indorsed,  hut  suhse- 
<\»mt  to  the  sale  a  dispute  arose  as  to  whether 
thf  luiKiunt  8tate<l  in  the  deed  included  a  mort- 
gage existing  on  the  property,  or  whether  the 
puiclmser  was  to  pay  that  also.  Plaintiff  .hav- 
ing sued  for  the  amount  of  the  mortgage, 

^fW,  that  in  the  face  of  the  indorsed  receipt, 
and  of  certain  evidence  adduced  in  confirmation 
tlicrcof,  he  could  not  recover. 

McDonald  v.  lilois,  W  N.  8.  D.,  283.  j 


given  under  a  plea  of  .set-oft'. 

MrFairiil:/!'  il  nl.  v.  Carrlll,  4  R.  &  C.  'JSU. 

3.  Not  conclusive    Plaintiff  and  defendant 

entered  into  an  agreement,  liy  which  defendant 
contracted  to  finish  a  certain  vessel  lielonging  to 
the  plaintiff".  Hefore  the  completion  of  the  con- 
tract tile  vessel  was  Imined,  and  a  difference 
having  arisen  as  to  the  amount  defendant  had 
earned  under  the  contract,  plaintiff"  and  defend- 
ant entered  into  arliitration  honds,  in  which, 
after  reciting  the  agreement,  and  that  the  vessel, 
hefore  her  completinn,  had  lieen  consumed  hy 
fire,  the  subject  of  the  submission  was  stated  as 
foUows  ;  "  In  conseijuence  of  which,  dift"erences 
have  arisen  between  the  said  J.  I{.  (the  plaintiff"), 
and  the  said  A.  M.  (the  defendant),  as  to  their 
arrotints,  anil  the  amount  the  naiil  A.  M.  in  en- 
titled to  recelre  under  faid  ai/re.emenf.''  Two  of 
the  three  arbitrators  made  an  award,  in  which, 
after   stating   that   they   had   investigated    the 


iir,7 


RECEIVER. 


lies 


mutter  miltniittcil  for  ilirir  I'diixiilftiiiioii,  tliry 
iiM'iinU'il  "'I'lmt  tin-  Niiiil  .1.  |{,  (tlir  pluinlitri.  dn 
piiy  til  the  Willi  A.  M.  (the  ili'ft'iiiliiiit  I,  tlir  i-lilil 
i>f    L'lll.'i,  linilcT  llJN  ll^l'CtMllrilt,  mill    tlir    niltlti'l'N 

Nlllllllittl'lj    III    IIH." 

I'illilltill'  llilil,  |irr\  inilM  til  till'  HIlliliiJNMiiiM,  |litiil 
(li'frliilalil  l'l,S4  mi  iiiriililil  nf  tlic  uink  lllliliT 
the  riiiiti'art,  ami  HiiliNi'i|ii('iit  tii  tin-  awanl  lir 
piijil  llilil  u  fiirthci'Niiiii  iif  t','i,  iiiiil  tiiiik  a  ri'i'i'i|it 
frmil  liltll  tlirrcfiir,  « llilil  Wiih  rX|iirxHi'il  tn  lie 
"  ill  full  nf  all  iliii's  aiiil  liciiiainlN  tn  ilatr,"  imt- 
witliHtaiiiliii^'  wliicli  tlio  ilcft'iiilaiit  hml  nut  lip 
tlir  aiiioiiiit  I  if  tlnMiwaiil  mh  a  Nrlnirtn  a  Koparate 
ilcliiaiiii  of  tlic  (tlaiiitiir. 

//(/»/,  tliat  till'  li'i  ri|it,  altlliill^'ll  fiillllil  liy  tlir 
jury  tn  liavr  licni  pii'paii'il  liy  tin'  plaint  ill'  in 
gniiil  faitli,  anil  Ni^'iii'il  liy  tlii'  ilt'fciiilaiit  with  a 
klinwlril^'c  nf  its  I'liliti'lltn  ami  nf  all  till'  I'iirillll- 
HtaiircH,  WMH  nn  liaf  tn  llii'  ili'fi'liilant 'i  rlailll  nil 
till'  awanl, 

IkniK'f  V.  Miiimii,  I  Olil.,  (iU. 

I.    Proof  or  receipt    Where  tlereiidant  In 

an  act  inn  nf  tinviT  plcai'ril  ai'inl'il  anil  satisfai- 
tjciii,  ami  piniliiouil  ill  I'viiloiK'tMi  wiitti'ii  roi'i'ipt 
ill  full,  wliirli  111'  tcstiliiMl  plaiiitiiriiail  si^'iicil  mi 
rcrcivinj,'  rirtaili  ;,'nnils  pursuant  tn  at;ii't'iiieiit, 
anil  plaiiitilf  tuNtilii'il,  "  \  nivt'r  Mij.'iioil  siicli  a, 
rciiipt  as  this.  It  Innks  liki'  my  si>;iiatiii'i'  ;  I 
ilnn't  tliiiik  it  ix.  It  is  wvy  liki' it,  IM  say  tlii' 
Hij,'iiatufp  was  iniiif  if  T  iliiln't  seu  the  writiin; 
alxivc  it,"  ami  a;;aiii,  aftii'  hearing  ilofuiiiliiiit's 
I'viiU'iu'f,  "he  (ilifciiilant )  ])riiiliii'fil  a  ice'i'ipt 
siniihll'  tn  till'  nlii'  pinillK'iMl  w  liiill  I  Iffusoil  tn 
sign.  I  ivail  the  fine  I  signeil  liefnio  lining  sn," 
liut  iliil  nut  priiiliice  any  witness  tn  examine  the 
signature  as  pniveil  liy  ilefemlant,  ami  express, 

if  he  eiuilil,  a  ilmilit  as  tn  itsgeiiiiineness, 

Jlilil,  that  the  veiilii't  fnr  jilaintitr  rniiM  nnt 

lie  sustaiiieil. 

M(ii(l(i(iiiv rij  V.  llnri,  '1  W.  k  ('.,  "iJiS. 

h.    Receipt  In  deed     The  receipt  of  the 

cnnsiileiatinii  niniiey  in  a  ile<  il  is  enneliisive  at 
eiinininn  law,  Imt  a  Cnurt  nf  Kijuity  Innks  to  the 
real  ehaiacter  of  the  ilealing,  and  gives  the  ven- 
dor a  lien  on  the  estate, 

Xihon  V.  CoKiwrx,  1  (Jld.,  4(K), 

A.  Weight  or,  as  evIdence-PlaintllT  testi- 
fied that  defendant  "  entered.  "  his  jireniises,  as 
a  yearly  tenant,  at  t'tKI  a  year  ;  and  that  "  there 
never  was  any  agreement  that  he  rt-as  to  he  a 
monthly  tenant."  Defendant  testified  that  "the 
premises  were  engaged  verbally  at  !*,S0  a  month. 
Defendant  also  put  in  evidence  two  receipted 
accounts  from  plaintiff,  one  for  "one  month's 
rent  of  office  from  1st  Nov.  to  1st  Dec,  1871, 


.^,'llt,"  and  annthrr  fm  fmu  and  a  i|iiiiiti'i  mmitliH' 
rent, 

llilil,  that  the  I'vidriiri'  so  largely  iirepmnliiu. 
ted  ill  favor  of  dtfi'iidaiii.  In  the  iiliN<<neL>  of  i>x. 
planatinlis  l>y  the  plaintltl'  nf  these  aeeoiintH, 
that  the  verdict  ill  favor  nf  plaintill' iiiuiit  he  st't 
aside. 

|{|ti-liie,  K.  .1.,  and  Wilkins,  .!,,  iIIhii  i,iiini. 

trXil/  V.    ir.//-, '.'  II.  fi  (•.,•.•(1.-,. 


KECEIVRK. 

1.  Appointment  of,  modlfled     I'lalntilTi* 

had  sei'iii  ity  nil  the  iinileitaking  nf  llie  di  li  ml 
ant  I  ninpaiiy,  future  calls  mi  NhareN  and  all  t>ilU 
and  money  arising  frnin  the  nndeitakiin.',  inr 
t''J<HI,(MI»l  as  a  liisl  lien.  .Messrs.  Mnjifits,  huh. 
Iii.rk  fi  ('•>.,  an  Knglish  linn,  had  ii  lien  nn  tli" 
inlliiig  stuck  for  t'J."i,lMMI,  and  there  wen.' aliuiil 
t'7ii,<HMliliie  In  unsecured  creditors,  Defeinliiiitu, 
iimlei' c.  HM  nf  the  .\cts  nf  ls74  nf  the  l.i':;isi,i 
lure  nf  .Nnva  Scotia,  intitiiled,  "  .\ii  .\rl  in 
facilitate  arrangenielits  lift  ween  lliiilway  Ciim- 
panics  and  llicir  credilois  "  (""'  .Vets  of  IsT.'i, 
piigc  I  ),  tiled  a  sclicme,  wliereliy  piefeiciitMl 
stock  to  the  extent  of  t'7">,<KM)  w  as  to  he  I'l'iiilt'il, 
to  lie  a  first  charge  on  linlli  the  imdcrtakiiig, 
calls,  tolls,  i^c,  and  the  rnllilig-stnck,  and  this, 
nr  the  niniiey  cniuing  frniii  it,  was  to  lie  iipiiliril 
to  the  li.iyiueul  in  full  nf  .Messrs.  Knlicits, 
Lulilmck  iV  Co.,  and  certain  unsecured  ilclil.'; 
specilicd  ;  stuck  tn  the  extent  nf  .iXiH.IKKI  wim 
then  tn  'le  created,  tn  he  a  siiliseiniciit  char^i'nii 
the  undertaking,  »*i:c.,and  rnllingstock,  and  wis 
to  he  issued  at  par  to  the  existing  delieiitme 
holders  in  lieu  of  the  deheiitures  they  thenliclil, 
which  were  ti.  lie  delivered  iili  tn  lie  caii.illiil. 
I'laiiititl's  nlitained  an  order  fnr  the  apliniiitiiiiiil 
nf  a  receiver,  which  defemhints  ohlainoil  a  nilu 
(/('.<(■  to  rescind.  'I'lie  Court,  considcriiig  ihiil  tlif 
Act  was  ii/lra  rini,  as  it  dealt  with  the  snlijt.i.t 
of  insolvency,  and  further,  that  the  scheme  liieil 
was  uiireasonahle,  as  its  object  was  to  seciiic 
other  creditors  at  the  exjjeiise  of  dehciiture 
holders  having  a  first  lien,  discharged  the  rule 
nisi  to  rescind,  Imt,  in  view  of  thepossihlc  reversal 
of  the  judgment  on  appeal,  ofll'ered  to  modify  the 
order  appointing  the  receiver,  hy  directing  lii"' 
to  pay  the  amount  to  he  received  to  the  KcceiviT- 
(ieneral,  to  abide  the  further  order  of  the  ('mirt. 
i  Murdoch  v.  Wiiuhor  d-  Ainia/'olii  h'^iliidi/ 
Comjiuiii/,  K.  K.  I).,  1S7; 
.3  Cart.,  ;fliS. 

2.  The  Court  will  not  appoint  a  receiver 

except  when  a  suit  has  been  instituted. 

Ex  jiatie  Ptillon,  i  Thoiii.,  Wo. 


UOO  RECORD.  1170 

KKdMiMZAXCEi  tiiUdl   XII    t||i>   pint    i.f   til.'   Cinuil.       Itlllc    iiiiiili' 

I.    K»ln'fttlnK      III  oriliT  to   Mroal  »  ''"""    *'         v»,-„  v.  77«.//./m„„,  •jTlium.,  ii. 

ri'i  M^iii/iiiii')'  lakrii  iiiiilcr  ('ii|i,  .'10,  nl'    the  |)ii-  ^ 

iniiiioii  Ad  i<(    IH(HI,  ull   timt    in    ii(|iiircil  Im   ii  |  •"*'"    REt'ORD.  -• 

ii'itilii'iito  friiiii  till'    in'iipcr  iillicci'   (iiinlcr  nco.  I 

4.'iot  till'  Act)  tliiit  it  in  foifiitcil.     I'lMPii  that  ' 

<i  mil'  lii-i  Im  tiikcil  out  nil  iltliiliu  ilM  nt  t  lir  fai'tN, 
illlll  if  Mil  CIIIINU  in  tllOWII,  jllll^'IIU'lIt  fnllnws,  |j||t 
(\itll(illt  CdHtH. 

I'l'iii'liue  ii)  till'  \hiiiii  V,  Tlidiii/i'iiii,  ■_'  'riidiri., 
!l,  iilliiiiii'il 


KE(OKI>. 


1.    PIIInK  of     A   JiKlKnipnt    had  bren 

I'litcri'il  tip  (III   vt'i'iliut,  liiil  llii'ic  wiiH  iioihiiig 

the   fait    that    an    fxt'culion   hail    ln't'ii    ixNiicil. 
Mdic   than  thirty  ycaiM  aftciwanU  ii.  nih'  /(/'•/ 

2.   Eitlrcntinu;     Dcrcnilant,  hnvlns  been  waH  ohtuiiu'ii  for  leave  t<>  tilu  a  rccoiil  tiuii'iii 

I'ciiviilril    III   till'     I'lillit'    ('iiiiil   of   an  awxaiilt,  iiunr  pro  hiin',  in   iH'tlcr  that  it   ini;,'lit   )"■  pi'n- 

cntiTi'il  into  a  iccofjni/ani'u  with  two  Hiiit'tii's  cliu'cil  iih  cviilcncc  in  a  pcmlin^'  articpii  lirtMcfii 

'HJiftptln'   I'caci'.     Aftci'wardM  li<^  wan  coiivic-  tht;  sons  of  i hi!  original  parties,  ihi'  litli' to  laml 

til!  cif  a   si'i'oiiii    assault,  ainl    thi>    Aftoincy-  Iwiiiy  in  iiui'stion.     The  ink'  was  ilisfhaiu'i'd  on 

(ii'iii'i'iil  hail    till'    proi'i'cillii^'s   lii'oii^'lit    lip   liy  the   grouinl  of  tliu  itpplleation  liein^'  ininh'  too 

I'iri'dfiirl.     Will  reiipoii,  j.ite,  anil  hy  a  jiarty  In  another  suit  with  tlie 

TlieColll't,  hojiliiii;  that  the  llioileot' pi'oi'eeililiL'     olijeit    of   proihuing    the    leiolil    as   eviilellie   nil 
ill  Kiii.'lanil  to  estreat   rt'eogiii/anres  was  \v  holly     his  own  lielialf. 

lIMlipliialile     to    this     IVoviiiee,    saiiitioneil   the  ''"'"'   '^' •  •**'""'''.  1   N'  ■'''■    I'-,  -'». 

iniM-ii'   piirsiu'il    ill    the    Illlll  II    V.     Tliiiiniiiiiii, 

.11,,,,,  1).  'i.    FllliiK    Must  b(    IlkMl    I'rodiicllMii  or 

\hiii  II  V,  /li/iini,  I  It.  ,^  i;,,  .">|,    hail-|)ieee  not  a  mitheienl  answer  to  a  |)lea  of 

/,(//  //.  /   nriiril  —No  execution   isuiied  before 

action- In  an  aetion  on  an  alleged  reeogiii/aiue 

■t.    .hl(l;;ilient    on  —  JllllKinOnt    will     be    of    hail,    set    out    in    plalntill's   deelaratimi     as 

iiildvil  nil    a    reciignizatiee   against    liotli   piiii-    eiitefed    into   liy    the   defendants   to   lespmid    a 

tlpal   and    sureties,    where    the    prineipal    has    judgnient  to  he  finally  given  on  a  rule  ;n.v/,  taken 

ml    ippiared    in    aeeoidanee    with    the    eoiuli-    under   the  Statute   under  the   former    praeliie, 

timi  iif  Mieh  leeogiii/anee,  and  where  a  rule  nisi    the  defendants  adiiiitted  the  making  of  the  liail- 

fiirsikli   judgiiieiit   lias  lieeii  served  on  tile  sure-    |iieoe.  wliiih  was  signed  liy  tlieiii  liefore   K,   ,1. 

tits,  and  the  prineipal  liiiM  left  tlie   I'rovinee,    U.,  as  Coininissioner,  luiniitted  to  he  siieli,  who 

iuid  they  have  failed  to  show  cause.  also  took  their  athdavits  of   jtistiHeation,  and, 

V'"'"  v.  77(o//)/,w((,  •_' Thoni.,  »,  artirnied.  lieiiig   I'lotlionotary,   had   them  tiled   with    tlie 

fjniiii   v.  Cin/ilii  I/,  I  Old,,  7<M.     hailpieee,  hut  the  reeogui/anee  was  not  rediRed 

to  Wilting,  nor  did  it  appear  iijion  any  record  of 
the  Court. 
1.  JudKltlt'nt  on  —  Praellce  as  to  en*  Defendants  pleaded,  among  other  things,  that 
tering  up  Judgment  on  a  recognizance  —  there  was  no  record  of  the  alleged  recogni/anec 
Tlie  Clerk  of  the  Crown  made  an  affidavit  of  of  Ixiil  remaining  in  the  Court,  as  it  was  set  out 
till'  filet  of  a  reeognizanee  having  lieen  entered  '  in  the  plaintiff's  declaration. 
into  liy  the  defendants,  of  the  signature  of  the  Ifi/d,  that  the  production  oi  the  hail-piece 
•lustices  of  the  Peace  thereto,  and  its  return  into  alone,  worded  "  to  respond  the  judgment  to  he 
the  Siipi'enie  Court,  and  the  non-appearance  of  finally  given  herein  on  a  rule  ;i/.</  for  a  new  trial 
the  puny  to  jilead  to  the  indictment.  On  this  under  the  .Statute,"  was  not  suthcient  proof  of 
afhiliivit  a  rule  nix!  to  enter  judgment  was  oh-    the  plea. 

taiiicil.  A  copy  of  the  rule  and  of  the  affidavit  It  heing  admitted  that  no  execution  had  heen 
was  served  on  each  of  the  defendants.     Ky  cap.    issued, 

hin,  1st  Revi.sed  Statutes,  s.  17,  the  Justice  on  ,  //t/rf,  a/io,  that  if  defendants  could  avail 
tiiking  hail  is  required  to  give  notice  in  writing  themselves  of  that  defence,  plaintiffs  could  not 
to  the  party  accused,  of  the  time  and  place  of  j  recover  ;  but  that  the  defence  was  not  available, 
trial.    SiR'h  notice  had  not  been  given.  not  having  been  pleaded. 

Pir  Haliburton,  C.  J. — As  there  appears  to       McOee  et  al.  v.  Ptrhiim  (./  ah,  20  N.  .S.  R., 
lie  no  settled  practice  relative  to  these  escheats  j  (8  R.  &  (.i.),  l."')4  ; 

here,  I  can  see  no  objection  t    the  proceedings  |  8  C.  L.  T.,  H15. 


1171 


RECORD. 


1172 


3.  Filing  -  Delay  in  flUng  -  Where  the 

(k'feiidiilit  otl'oied  in  fi-viilenut!  a  reconl   mil,  in  a 
previous  action  liutween  the  same  parties,  wliirli 
luid  been  luuxled  to  the  I'rothonotary  in  Court,  ' 
and  marked  tiled,  only   lialf  an  hour  before  it 
was  so  tendered  in  e\  idenee, 

IkUl,  that  the  .ludye  was  right  in  rejecting  it.  i 
Mimlock  V.  Gran/,  'JThoni.,  M). 

4.  Judgment  —  Application  to  set  aside 

by  stranger  to  the  record  —  In  a  case  of 
replevin,  tiie  defendant  withdrew  his  pleas  and 
gave  a  confession  upon  which  plaintiff  regularly 
entered  up  judgment.  Sometime  subsecjuently 
\V.,  who  was  not  a  p'lrty  to  the  suit,  but  who 
claimed  the  goods,  rejdevied  under  an  assign- 
ment, from  the  drrendant,  and  was  one  of  the 
sureties  upon  the  replevin  bond  to  the  SiieriH, 
sought  to  have  the  judgment  set  aside  on  the 
ground  that  the  confession  was  a  frau<l  upon 
him  and  the  other  creditors  of  defendant,  and 
also  that  he  had  joined  with  defendant  in  the 
pleius  which  had  been  withdrawn  without  his  j 
sanction.  The  latter  allegation  was  denied  both 
by  defenilant  and  defendant's  attorney,  whom 
W.  ?wore  he  liad  instructed  to  act  for  him. 

//lid,  that  W.  not  being  a  party  to  the  record 
had  no  lorii>^.  sianili,  his  redress,  if  any,  being 
against  defendant's  attorney,  an<l  also  that  he 
had  been  guilty  of  laches. 

Hare  v.  Murphy,  3  N.  S.  D.,  202. 

5.  Judgment  on  appeal  from  Magis- 
trates—Evidence of — No  record  being  tiled  in 
the  .Supreme  Court,  of  judgments  in  causes  ap- 
pealed from  Magistrates'  Courts,  the  termination 
of  the  proceedings  under  whicli  the  arrest  was 
made  is  sutficiently  proved,  in  support  of  an  , 
action  for  malicious  arrest,  by  the  testimony  of  \ 
i\  competent  witness  who  heard  the  judgment  on 
the  appeal  pronounced   in   open   Court  by  the 

Judge. 

Cox  v.  Gunn,  2  R.  &  C,  .528. 

On  appeal  /o  the  Supreme  Court  of  Canaila, 
Held,  reversing  the  judgment  of  the   Court 
l)elow,  that  such  evidence  was  inadmissible,  and 
was  not  proper  evidence  of  a  tinal  judgment  of 
the  Supreme  Court  of  Nova  Scotia. 

Gunn  v.  Cox,  3  S.  C.  R.,  206. 

6.  Nul  tiel  record— Where,  in  an  action 

to  revive  a  judgment,  defendant  pleaded  nnl  tiel 
record,  and  plaintiflF  tiled  a  recor<l  only  five  days 
before  the  trial,  and  after  plea. 

Held,  that  the  plaintiff  could  not  recover,  as 
the  matter  alleged  in  the  plea  was  true,  and  a 
comjdete  answer  to  the  action. 

'I'he    record   roll,    filed  by  the  attorney  in  a 


cause  on  entijring  judgment,  is  the  only  eviilcnw 
of  a  recovery. 

Where  plaintiff  has  dieil  after  reoovciiiii.' 
judgment  without  tiling  a  record,  it  cannnt  In- 
Kled  by  his  representative  without  leave  nf  tin. 
Court  or  a  Judge. 

Cheslnj  V.  Honnilt,  I  R.  .t  C,  111 

7.  Police  Court  -  What  sufllcient  record 
in- 

Held,  that  the  following  record  of  liii;  I'uliii' 

Court  was  sutlicient  evidence  of  the  tortninatinii 

of  the  i)roceedings  :    "J.  J.  Backstrr)ni  ;  iliai^e, 

stealing  two  rings  (i)ros.,.I.  Reck)  ;  dischai'^'e.l." 

Jiartitrom  v.  /i'ek;  '>  R.  &  (i.,  .'^'is. 

8.  Proof  of  — Filing  nunc  pro  tuiu- 

Rlaintitf  j)ropose(l  to  give  in  evidence  a  ('ii|>y  uf 
a  record  alleged  to  have  been  tiled,  March  l.'flli, 
1878,  to  meet  a  plea  of  nnl  tiel  record.  Tlie 
Prothonotary  of  the  Court,  called  by  plaintift', 
stated  that  no  record  of  that  date  was  to  In- 
found,  and  on  cro.ssexamination  said  the  tiMt 
record  he  had  seen  was  tiled  August  ISth,  ISTfl, 
and  that  this  was  the  first  record  that  had  hfuii 
sent  to  him  by  the  attorney  whose  duty  ii  wns 
to  prepare  it. 

//(/'/,  tnat  the  Judge  had  properly  njecicl 
the  evidence,  and  that  he  was  justified  in  re- 
fusing to  allow  a   record  to  be   filed  iiiiiic  jiro 

tunc. 

Hardy  v.  Smith,  1  R.  &(;.,. Til. 

9.  Proof  of  -  Defendant  put  in  as  evi- 
dence of  the  judgment  the  so-called  "  recurilln 
default  "  in  the  form  No.  11  of  .schedule  A,  caii. 
04,  of  4th  R.  S.,  signed  by  the  plaintitf  "s  attDi- 
ney. 

Held,  that  this  was  legal  evidence  of  a  \wk- 

ment. 

McDonald  v.  Feriju-^son,  1  R.  \'  Ii.,  > 

10.  Proof  of  record  to  support  plea  of 

res  adjudicata  — Plaintiff  brought  an  actirai 
for  u.se  and  occupation,  which  was  afterwanl.* 
amended  l)y  adding  a  count  for  mesne  i)Mitit5. 
Defendants  pleailed,  disputing  plaintitl's  titli- 
and  possession,  and  plaintiff,  l)esides  joining 
issue,  replied,  .setting  out  the  fact  of  an  eject- 
ment suit  against  one  Davis,  the  order  of  a 
Judge  pernutting  defendants  to  appear  as  land- 
lords and  defend  said  ejectment  suit,  the  ])i'"- 
ceedings  in  said  suit  on  the  Gth  May,  '7'),  liufniv 
McDonald,  J.,  when  came  the  said  \Villiiiiii 
I  Jost  and  the  said  Church  Wardens  and  Ve.-itry, 
'  and  a  jury  who  found,  &c.  On  the  trial  tiw 
verdict  of  an  ejectment  suit  was  tendered  and 
received  without  objection.  It  was  signed  liv 
;  the  foreman  and  Prothonotary,  and  purpDrtC'i 


117.3 


REGISTRATION. 


1174 


td  1p(,'  liutweeu  .lost,  an  |ilaiiilit}',  and  Davis,  as 
(li'fciiilimt,  anil  did  not  niciitiDii  the  ))resent  cli;- 
fiMiiliiiits  at  all.  A  rt^ciird  signed  liy  tliu  attorney 
and  not  aiithentiuatud  liy  an  officer  of  the  Omit, 
\v,f  tiien  londert'il,  wlii<h  recited  an  ejectment 
suit  Iputween  .lost  and  Davis,  the  order  of  a 
.Jiid;;!'  allowing  tlie  present  defendants  to  a|)])ear 
and  di'fenil  in  their  own  name,  the  proceedings 
(III  April  "iTth,  '7'),  when  "  liefore  Sii'  \V.  Voinig, 
('.  .1.,  and  his  associate  . I iistices,  came  the  ])ai'- 
Uv-i  witidn  niiiitioned"  (liijing  the  plaintiff, 
l)ivl>  and  theClnncli  Wardens),  "  and  a  jury 
.sHHiii."  itc.  The  recoid  was  rejected,  and  the 
|iiiiiiitifT  non-suited. 

//'/'/,    that   tlie   record   .■should  have  been  re- 
ceive! i. 

W'eallierhe,  .!.,  ilissin/iiii/.  '■ 

Josl.   V.   C/nirrli   Wurili  ii'<  rniil  I'litfijof 
St.  (;,or;ii'.^,   I  R.  A:  <;.,  4,')I. 


KECOKDEK  - 
OF  IITV  OF  ll.iLIF.4X- 

SV'  IIALIF.tX,  tITY  OF. 


KEFEREXCE- 
ORDER  OF  - 
SV,  ARBITRATION  AM)  AWARD. 


REGISTRAR- 

OF  VKE-ADMIRALTY  (OIRT- 

S,-e  PRIZE. 


REGISTR.ATIOX. 
1.   Attestation    tertlfloate  of  -4tli  R.  S., , 

C.79,  s.  12  — Cf.  5th  R.  S.,  c.  84,  s.  11  -Where 
ii  cerliticate  of  the  attestation  of  tlie  execution 
of  a  ileed  contained  no  date,  ! 

//'''/,  that  the  deed  was  j)ro|)erly  recorded  in 
tlie  Registry  of  Deeds  office,  the   words  of  the 
l'2tli  sec.  of  cap.  79,  H.  S.  (4tli  .Series),  reipiiring 
tlicilateof  the  attestation  heing  merely  directory. 
MrKen-if,  v.  Lamont,  2  R.  A.  ('.,  .")I7. 


2.    Crrtiflcatc  of  Rcsintrar  of  Dceils  - 

Affidavit  of  .search  -  Estoppel  ~  Action  of 
ejectment  -The  action  was  twice  tried.  Plain- 
tiffs,  executors  of  original  plaintit)',  claimed  title 
under  a  deed  dated  the  IStli.luue,  1.S.">ti,  wliich 
Hiigli  Mc.Master,  deceased,  the  former  owner  of 
the  land  in  (|iiestioii,  was  alleged  to  have  exe- 
cuted, conveying  said  land  to  his  .son,  Ronald 
.McMaster,  who,  on  tlie  l!»th  AjH-il,  IS(i!»,  niorl- 
gagi'd  to  the  oriiiiual  plaintitf.  This  mortgage 
having  lieen  foreclosed,  tiie  land  was  pui'ciiased 
l)y  the  mortgagee  at  .Sheriff's  sale.  At  the  trial 
l)laiiitilfs'  counsel  tendered  a  copy  of  the  deed 
of  the  ISth  .luiie,  IS.'iti,  certified  to  lieatnie  co])y 
liy  the  Registrar  of  Deeds,  anil  aucoinpaiiicd  hy 
an  atlidavit  of  one  of  the  plaintitVs  to  the  etVect  : 
"Tliat  tlie  original  deed,  of  wliicii  the  paper 
writing  hereunto  annexed,  marked  A,  is  a  copy, 
certified  under  the  hand  of  the  late  Registrar 
of  I  )eeds,  in  and  for  the  said  County  of  Inverness, 
is  not  in  my  or  my  co-plaintifT's  ))ossessioii,  or 
under  our  I'ontrol  ;  and  I  fiirtiier  say  that  we 
have  iiii|uireil  for,  and  lieeii  unahle  to  procure, 
tlie  same." 

I)oii,ild  McNhister,  a  son  of  the  original  owner, 
and  one  of  the  witnesses  to  the  deed,  gave  the 
following  evidence  :  — 

"  I  went  to  the  Registry  of  Deeds  ottice  and 
proved  the  deed  from  my  father,  Hugh  Mc- 
Master, to  Ronald  McMaster,  his  son.  It  was 
registered  17th  June,  IS.'iO.  I  took  the  deed  to 
the  Registry  Office,  and  left  it  there. 
I  am  not  aware  of  Ronald's  knowled.;e  of  the 
deed  from  my  father," 

Ronald  swore  that  he  never  saw  the  deed,  and 
never  heard  of  it  until  a  few  years  liefore  the 
first  trial,  in  Octoher,  ISSII. 

It  was  agreed  that  plaintiff  should  liecome 
non-suited,  with  leave  to  move  to  .set  tlie  non- 
suit aside,  and  in  case  the  Couit  .should  think 
tiie  nonsuit  wrong,  the  t'ourt  to  enter  a  verdict 
for  plaintiff. 

The  .Supreme  Court  of  Nova  .Scoti.i  (McDon- 
ald, C.  J.,  and  Rigliy,  .Smitii  and  Weatherlie, 
.1.).)  were  divided  — Rigliy  and  Weatherlie,  J.]., 
heing  of  opinion  that  the  presumption  was  that 
Hugh  McMaster,  the  original  owner,  having 
signed  the  deed,  delivered  it  to  Donald  to  take 
to  tlie  Registry  Office  to  lie  proved  and  regis- 
tered ;  that  by  tliis  registration  he  gave  notice 
to  all  the  world  that  he  had  conveyed  the  land 
to  Ronalii,  and  that  there  was  evidence  for  a 
jury  :  that  by  his  conduct  in  I'elation  to  the  con- 
veyance to  Ronald  he  had  induced  the  original 
jilaintiff  to  accept  the  mortgage  from  Ronald, 
believing  the  title  to  be  vested  in  Ronald,  by 
virtue  of  the  deed.  Therefore  the  defendant, 
who    also    claimed    through    his     father,     was 


1175                                        REGISTRATION.  117ty 

CKtoppi'd  firiiii  (Iciiyiiig  tlu'  diK'  (.'Xci'Ulidli  (if  tin:  //</'/,   lliat,   iis  tlic  |iliUiititl' liiul  liail  ii<i  nnti.c 

ik'tMl.  of  the  mortgage,   liis  title  \Nas  good   iinU'ss  the 

McIVmald,    ( '.    .1.,    and    Smith,    .(.,    were  of  mortgage  was  registered  juior to tlie  registration 

opinion  tliat  there  was  not  sutfieient  evidence  of  of  tlie  deed,   an<l  that  in    order  to  [)rove  su.h 

tlie  exeeutioii  of  tlw  deed.  registration  it  was  neeessary   to  show   that   tlic 

MrI)oii(thl  it  (il,   V.  MvMaiii  r  <  I  a/.,  certitieate  had  lieen  signed  l>y  tlie  jiioper  otlirir, 

"i  K.  vt  ' ;.,  4.SH.  tlie  mere  produetioii  of  a  paper  inir/ioriiiiii  to  \v 

a  eertitieate  not  lieing  siitiii;ient  umler  4lh  1{.  S. 

On  II nii'itl  to  till  Sii/iri  ,111   Coiii-f  III'  Citii'iiln,  _,,       ,.,       ,.,               -.,    ■,    ^           „,         ,- , 

''                          '                          •  e.  ,'.)  ».   IS.      (Name  as  .It h  li.  N.,   e.  .S4,  s.  li.) 

//•/'/,    tiiat    there    was   sutKeient  eviileiiee  to  (Unilit  \ .  M<(1  n ifor,  1  R.  &  (i  ,  .Tiil. 

estal.lish  tlie  due  execution  and  delivery  of  the  Followed  in  Mi-Curnuu-k  v.  Dniiiiioii,  3  H.  & 

deed  to  I'oiiald.     The  eoj)y  having  lieen  received  (;     -| 

in  evidi'uce  without  olijection,  it  was  too  late  to 

ohject  to  its  ad.Missihiiity.  ^     CoiiU'st  bctwoeii  Jisslsnco  Jiiirt  jKtacli.. 

Mr.,.,,',  .J.,  ilHhitiuiti.     Appeal  allowe.l  with  j^^,  ^.^^aitors  under  Absconding  Debtors'  Ait 

costs,    and  vcidict    directed    to  be    entered   foi'  w  ■.       c     ..     \          .          •     .  .i 

—  Writs  rif  attai'hiiiciit  against  the  iii(irtj.ML.'iir, 

plaiiitif!.  ,           I'll.                             1          II 

'  as  an  aoscoiiiliiig  dclilor,  were   issueil,  and  ilu- 

'                     '  liveri'il  to  the  Sheriti  on  .May  "JO.     An  a))pi;iisc. 

('as.  Digest,  141.  .     f.i             .          1             •        ..             1          1 

'^  mciit  of  the  mortgaged  premises  was  madr,  ainl 

.,     ^,„      ^         „..,.,             ..        ..    «  collies  of   the   writ,  with  tlic  aiiiiiaiseliieni    in.l 

.{.     (ertificato  of  Kesjislrar    Trool  «»f-  ,  '    .  ..       ,  ,    ,     ,                  ,      ,       ,, 

r>-    1,^     !•  iir          T-i                r>             ^     e       ^  description  of  the  land.  Were  registered  on  M.y 

Right  of  Way  — Excess    -Removal  of  gate —  .,             ,               ,             •      <•          i                 , 

P,  V             .  ^  •        r,       i,      .■         i  ,.     i         -ir  '-'I.     On  the  same  ilav  a  writ  of  attachment,  liihlir 

Prior  registry  —  Proof  ol    eertihcate  —  var-  ,     .       ,          .■,,.„              . 

,.,  ,"       ,r  ..             1  Ti    !>   r.     oor.   r  1  the  Insolvent  Act  ot  I  Ml!),  was  taken  out  aL;,iiii-t 

lunee  — ^"((/(/  V.  .l^'./v ./.,/•,  1  R.  &  G.,  339,  fol-  ,                          ,                         ,  i          ,         i 

,          ,       ,„                                                    ,   r      1  the   niorti'a;;or,   but    was  not    delivcrcil    to  the 

lowed—  lo   an    action    ot     trespass    dctcudaiil  ,.,..?,        ,      ,     ,         .           ,     ,       , 

,      ,    ,    .       .^   .              ,               n        1                   -  Shcrirt   iiutll  after  he  had  registi'l'ed  the  dipiu- 

lileaded,    ustitvim:  under  an  alleged  grant  ot  a  ,      .  ,      ,                   ,.               ,       , 

.    ,          ,'           ■      ',>,   .      .,,.         ,.',                          ,  luciits  coniH'ctcil  with  tlie  iiroceedings  under  tlic 

riL'iit    ot    wav.        I  laintid    replied    excess,    and  ,.       ,     ,          .    , 

'           ,       ,        ■                               ,                                ,       ,    ,  .Abscoliilllli,'  Dcbtor.s    Act. 

iH'ovcd   that   a  L'atc  on    the   iiioiicrty  hail    liccu         .        ,   .  .    ,  .  .    , 

'               ,         ,              ,            .,'■..,  //'/'/,   that   the  claims  ot  the  assiiiiicc  ot  ;lic 
remnved  and   torn  down   in   the  exercise  o!   tiie 

,,        ,     .   ,         ,.                 ,„    .      ■.,.        1    ,   .-      1      ^  estate,   to   the    surplus    iirncccds,   must    pivv.iil 

allcL'ed   light  ot  wav.      I'laintill  and  dctemlant  ^    ,          '     ,  .  '           ,.                   ' 

,      ,'     1   ■        ,     ,     .      ■,-   •    •       1.1  over  that  of  the  attacliiUi,' ciiMlitors. 

liotli  cjamied  tlicir  adioining  lots  by  convevance  ,.      ..     ,              _,.,,,.,• 

,            ,                                        1    ,  .■      ,'            !•'  1  Section  •_>4   of  cliapter   ,!),  4lli    I!.   S.,   is  .uii- 
ironi  the  same  itrantor,  and  delendant  relied  on 

,1        ,             ,         1  .        ,       ,          ,  .    I                    •      1      ,  trolled  liV  tlie  Insolvent  .\i-t. 

the   fact    that     lis   deed,    which    comiirised   the  ',,                ,          .                ,     ,,    ,.    ,,     . 

grant  nt  thi^  right  ot  way  over  jilaintill  s  land, 
had  been  registered  long  |ireviously  to  the  regis- 
try of  plaiiiiitr's  deed,  but  no  evidence  was  <».    Di'llvery  to  K<'Kistrar  at  his  house- 
given  as  t<i  the  registry  or  the  date  there<if.  ff''''^  <lii't   »'"'  'Icliveiy  of  an  instrument  ;U 

IIi/il,  1,1  r  .lames.  .1.,  that  under  the  decision  the    Registrar's    house  with  instrtictioiis  to  tile 

in  (;i„il'l  V.  .Vr(;,;,ioi;   1   R.  >\:  C,  .'«!»,  the  cei-  "!'«  stitiiiient. 

titicate  shoiihl  have  been  tendered  and  proved,  Fl-^lin-  v.  /H-^liu/i  it  n/.,  .">  R.  A  C,  VA. 
if  objected  to,    and   further,   that    plaintiff  was 

entitled,  under  the  evidence,  to  hold  his  verdict  7,     GfTcct  Of  n'SislOrillS  ilistrilllieilts,  tllC 

on  the  ground  of  exce.«s.  registration  of  which  is  not  contemplated  hy 

Pi  r    Weatherbe,   .1.— 'Chat    the   locus   of   the  the  Act —  .Mitchell,  who  had  been  the  owner  nt 

trespass  had  not  been  identitieil    by  ilefendaiit  three  lots  upon   which   the  ])laiiitiff  held  imirt- 

with  the  way  as  described  in  his  deed.  o''*?'-'^  foreclosed   in    the   present  suit,  coiivcyi"! 

McDonald,  .1.,  (//-m  iitiiii/.  one  of  llie  lots,  known  as  the  Chebucto  F<iiiiiilry 

Mi-Cvi-mm-k  v.  Ih iiiiitou,  .'{  R.  &  (J.,  71.  lot,  to  Montgomery  i^  Hudd  by  deed  regislcieil 

in   l.S()(i.      In  IS7I    liudtl  became  ins'-'vent,  ami 

4.     Ccrlllk'ateof  ri'Sistratlon  "Pro:»f  of  -  his  a-ssignee  conveyed  his  interest  in  t)     I'lt  to 

In  an    action    for   breaidi    of   covenant   of   title  Montgomery,  by  ileed  registered  in   1S7I,  alter 

contained  in  a  deed  from  defendant  to  plaintiff,  which,  in  October,  IH7"-',  a  mortgage  was  iiiaile 

the  plaintiff  put  in  evidence  a  mortgage  on  which  by  Montgomery  to  Stairs,  which  was  recnnleil 

was  indorsed  what  purported  to  be  a  eertitieate  in  Novenilier,  187'-.     Previous  to  lindd's  failure 

of  registration.     The  execution  of  the  mortgage  Montgomery   and   Budd    had   entered   into  ni^ 

was  proved  but  the   certificate  was  not  proved  agreement  with  Mitchell,  reciting  that  pliiiiitifi 

to  have  been  signeil  by  the   proper  officer,  nor  held  mortgages  on  certain  ])r<ipcrty  of  -Mitclal'. 

was  it  tendered  as  evidence  independently   of  on  which  there  was  due  .* Hi, (KK),  that  Moiitgnni- 

the  mortgage,  ery  and  Hudd  had  purchased  part  of  said  l>nip- 


1177  REGISTRATION.  1178 

oily,  anil  iis  jHUt   ot   tlif  cinisidciiitioii   tlificfix-  Liml   to   Scoit,  as  .■^lu•ll   |hi-^i'.ssj.iii,   in    oidrr  to 

■,i:.'rifil  to  assiimi!  till' .-aiil  luiirtgages  and  iflii'vy  liavu  nhuIi   ertfot,  nniMt    lii'   lU'tinfcl,  actual  and 

MitcluU    tlioittVoin,   and    tlit-    inntiiuucnt    con-  <'ontiniioiis  fof  twenty  yiMis  ;  and  that  all  lionnh 

t,iiiiLd(;c)Vunaiil.st<>  imleinnit'y  Mitclioil.liis  iiuiis,  Scott'.-i  d.-.  il  to  the  dutLMidimt  wasdidy  icrnidcd, 

ft.-.,  fi-t.in  all  anions  wliifli   might  arise  in  uon-  the  land,  allliongh  ai-iniiicd  after  the  jiid-nient 

si'.|iienee  of  the  said   inoitgages  (.oveting  mole  fe ilid  in    IS.'iT,   «as  hound  l-y  the  jiid-nienl 

liiid    than    that     |)iiiehased     fiom    him,    or    in  the  moment  it  «as  gianteil  to  .Srott, 
eoii>ei|ilenee   of   the   lionds  giveiL    with   the  said  /.miiJiin-',/  l.iind  Cn.  v.    '/'ii/'i/,  l   |;.  i^-  (,.,  |()| 

iiiuitgages.        This    agreement    was    regisleicd, 

,H,.viouslytothe,nortg<^,etoSt,u..,l.nt.as         ,„^     .M„,.,„,„t     mw.lnl    ill     lilHiim'  Of 

tn,knownloh,mandtoUy!de,Hart.V(o.,who  ,,,.^,^.^^^^„,      Entate  declare.l   .nscdvent   tn   ITo- 

wer- interested  w.thhuu>nti,en.ortgage.nntil  i,^^^,   Court        Execution    may    i.sue    and  be 

.ft.Mthe  mortgage  was  recorded      The  Master,  .^tended  on  land  bound  by  it -Balance  due 

liiiMiting  as  to  tile  disposal  ot  the  siirii  lis  iiro-  ,„        i         i  i        i      ^  . 

'  ,  ,  ,      .  '         '  "i'\v  "e  claimed  out  of  personal  assets   -  3rd 

ct'iils,  treated  .Mairs  as  the  tiist   iiRiiiiilnamei ,  n  y    „   -lo-   ^  -n     nf  -»i    u   u         ,r.,» 

,        ,.     ....  ,  ,  .  ;  K. ».,  c.  U'/,  s.  (0     Ct.  oth  R.  S..  e.  100,  sec.  72 

atliT  the  plaintitt,  on   the  property  over  whic  i        \\-i  •     i  .11  11  ,    . 

'  1  \»  licre  il   indgment  has  been  duly  recorded  il 


111  t  L'iven  the  iimrtgaui',  and  those  claiming  iindcr 
liiiii  il  they  had  had.  know  ledge  of  theesisteiice  of 
tlic  iiiirecMient  when  they  took  I'onvevance  from 


Ills  mortgage  extended,  and  exeeplmn  was  taken  ,1,..  i;i'    .:,         (      1  1         .  1   i- 

^  "  ,  ,     ,  ^.        ,      ,  the  lite  time  ot  a  decea.seil  party,  and   Ills  estate 

tu  the  report  on  the  ground  that  etteet  had  imt  1,.,.    ■ 11..!:       1.      .     1       .1       i,     1 

'  "  has     lieeii   dcclaied     insulvenl     li\-    the    I'roliale 

111  111  u'iveii  to  Iheagreemeiit  registered  plevionsU.  ,.   ,,,.,    ,,, ■   .   ,  .i"   1         1      . 

,,  ,,      ,  ,  ,         ,     ..  '  '  ""I' •  'i"  execution  may,  mvertheles.,,  be  issued 

Jl'ltl,  that,  although   Montgomery,  it  he  had      ,     ,,  1    :,   i  .  .  .    , 

'^  o  ."  on  such  judgment,  on  a  proper  suggestion  ot  the 

tacts    on    the     record,    against     his    executor  or 

administrator,  but  can  be  extended  only  on   the 

land  bound  by  such  judgment, 
liiiii.  uoiild  liave  been  deprived  ot  any  riuht  to  the         u'.,,,,.   11'  .    .      •      1       .  ,    •     , 

,       ,       ,  .  ■    .  '■   '"i.\    halaiice    remain  due  to  Mich  liidi'iiieiit 

Sill  plus  tuiids,  the  agreement  111  iiiiestion  was  not  ,.„..);, .,   ...       1        t  .1       .       1  , 

.  ,  .  .     '     ,  creililor,    alter  a  sale    ot   the    laud    under  such 

an   iiislrumelit,  the    registration   ot   wliicii    was  .,v,„.„n,.„     1,.    ;.  ...,»i    1   .       i   ■        1 

,,,,,.  .  ,  e\eciition,   he  is  entitled   to  claim   tlieretor  out 

ciiiiUiriplateil  by  the  Ivegistry  Aet.nndthe:  jtore  ,,.•  ,1,..  ,..„..,  „   1  .       ,       .-.i      1  ,  ,        , 

I  ...  ,,  ,       ,  ,  ot  the  iieisonal  assets  ot  the  deceased,  under  the 

tin- leuistratlon  ot  It  could  not  be  deemed  to  lie  ,.,„,.;  :   .         ,■         ,•         -,.      t    .1        ■,     , 

proMsions    ot    .section    ,(»   of    the    I'robate    Act 

iioticc  ot  lis  existence  and  contents  to  a  jiarty  /;{,.||  |{j,^.    stits     c    I-'") 

chiiiiiiig  under  a  deed  or  mortgage  for  valuable        , •),■.!  li    <      .    lo-         -,,  -.,     ,,     . 

...  ,    ,       ,.     .  ,"  ,  ,  '•>i''  '^-  >.,  c.   I_',,s.    ,l»,    .same   as   .)th    I!.  S., 

<..iiii?lilvratioii,  and  that  Stairs  and  tlio.se  elaimiiic  .    i,ui        -.>  , 

~  L.     M  W ',    .S.     t  ^>  I 

with   him,  not   having   received    actual   or  con-  /iii,-n»r,>  v.  /.y,io,;  I   Old.,  (i.Sii. 

^tiiictive    notice    of    its    e.xi.-teiice     when     the 

iimrtgaL'e  was  t  ikeii.    were  to  lie  eonsidered  as        41       »i,._4  .     ,        „. 

l,i„i,t  lull  inortgaL   es  unaffected  by  it.  ,„   .,.        t,,  ^     ..  .         •"•"  " 

°         ,,       ^,     ,  ,,    ,.    ,  nient    -  Then  assignment  ot   mort<iage -At- 

taehing  creditors  do  not  acquire  priority  over 

assignee  -The   defendant,  hohling  a  mortgage 

8.     EITt'Ct  of  n'.U:lstrati<>ll     The  reCOrdill!;  on  certain  real  estate  which  was  duly    recorded, 

iif  a  curliticale  of  jinlgmeiil  gives  the  judgment  a.ssigned   the  same  to  tli.>  plaintitl's,  after   which 

cifilitiir  such  a  lien  upon  the  land  of  the  debtor  defendant   puicha.sed  the  ei|uity  of  redeiii|jtion, 

il"  til  enable  liiiii,  without  hiiviiig  issued  an  exe-  and  the  deed  Wiis  duly  recorded.      Attachments 

eutiuii  to   proceed   in    Chiincery   to  set  aside  ii  were  then  issued  agidiist    the  defeudiuil  ius  iiii 

]in..i  fiiuidiilent  conveyiiiice  of  the  land.  iibscondiug    .leblor,    and    the    iHtachments,    iis 

OililirJI  ,f  al.  \  Kiii-iiiinii  II  (il ,  well    as    the   jiidgiiienls   entered    thereon,  were 

.liiliies,  .{Its.  placed  011  recoiMl  Ix'fore  the  assignment  of  the 

mortgiige.       The    attiiching    creditors    cliiiined, 

«.   .liMl.ijmt'iit  rocordert  binds  iaiids  miI)-  ';';''■  -*i''  ^'^^^'^^^'^  siiUutes,  c.  711,  .sees,  i-t  and 

se(,ueiitly  acquired  -111  Isti7  the  (  rown  granted  "' '"  '"''''  l"""'l.V'  ''■*  "g-'i»*l   Hie  i.ssignee  of 

t"  i.iic  ,Scotl  a  lot  of  kind,  of  which  defendiint  ^''^'  '"•"■'o''o'*-'- 

iMii  hueii  in  adver.se  po.ssession  for  ten  years,  ^''''''  ""''  ''"•'  '"""■ttf'g^  ren.iiined  ii  lien  on 
"inl  ill  1870  Seott  conveyed  said  land  to  defend-  ^'"'  l""l>»='ty.  whether  the  assignment  Wiis  re- 
am by  deed,  which  Wiis  duly  reconled.  In  ^'"'l^-''! '"■  <">t,  und  tliiit  the  attaching  creditors 
M.iy.  IS.->7,  plainlitV  recovered  judgment,  which  '""'  ""'  ^''"'  1"'"''^>'  '^'"""'^^''• 
Wits  duly  recorded,  against  Scott.'uuder  which  Haymo,„l,l  „l.  v.  I.'hhnnl.,  \X.  K,  1).,  4l.'.S. 
the  liuid  in  dispute  WiW  sold  and  jmrchased  by 

I'l'iiititls  iit  the  Sheritl  s  side.  12.    KiHonlcd  Jti(i$;moiit   dot's   iiot  bliid 

/'/i/,  that  the  adverse  po.ssession  of  defendant  land    conveyed  to  defendant    merely  for  the 

<li'l  nut  prevent  the  Crown  from  granting  the  purpose    of    re-conyeying   to   third    party  — 


1179 


REGISTRATION. 


llhO 


WluTfii  .ku,l  of  r.iil  LsliiH.  wiis  iiiqmif.l  iiii.l  an  iustruintiit  ifquiriiit!  ivgislrali.m  uihU  r  llif 

••xi'vMt.Ml   t..  Kiv  till''  to  1!.,  Imi   K.    fiiiU-l  to  jirovisions  of  tlif  N"Vii  .Votiii  Ki'gistiy  An  (4tli 

co,n,.lftc  tlu.  puivlmse,  iin.l  sul«t.,,ut.ntl.v  H.   .S:  Kev.  Stats.  N.  S.,  o.  7!),  su...  it  an.l  l!l|  a..,!  «u, 

«;.  puirlmsi-l  ih..  ifal  estulis  and  l.y  ugRfim-nt  .lufeati-.l  l.y  tlit-  i>iior  ifgislnUlon  of  the  sMl.>f. 

l.etwiHMi  the  iMitifs  tluMl.'iMlto  K.  xvasrtc-nU'.l  (|iR'iit  [mivliasiu's  coiiveyaiifu  for  viiluahk.  .nii- 

MinultaMfouslywitha.leiMlfron.U.toH.  .M;.,iri  suU-iation,  an.l  liiat,  llifivfor.-,  from  the  .lal,- „t 

an  aotion  of  fjoetinent  l.y  iniichaser  at  Sheriff's  the  registration  of  the  eonveyante  from  i  M- 

sale  un.lerjn.ignientreeor.le,!  against  K.,iuevi-  well    to    the    party    through    whom     plainutl 

ou>lvtotherer.,nliMgoflheal.ove.onveyanees,  claime.l,  the   -lee.l    of   grant   to   .letemlant    l.t- 

//,/(/,    that    K.    was   a  mere   eon.luit  j.ipe  to  eanie   voi.l  at   law   against  the  grantee  m  >.w\ 

eonvey  title  from  the  vemh.rs  to  H.  &(i.,  an.l  eonveyanee  ami  all  parties  claiming  throngh  hii,:. 

that   ihe  jn.lgment  against  him  .li.l  not  attach  .S.     That    to  .lefeat   a   registered    .lee.l  liKiv 

to  til.,  real  estate  in  ....esti.m.  must  he  actual   n.,tice  or  fran.l,  an.l  there  wa. 

O.nn  V.  l.t/iirli,-2  li.  .'t  C,  400.  no  actual  notice  given   t..  plamlitl  ni  this  case 

such  as  to  .lisentitle  him  t.i  insist  in  e.juity  <'i\ 

..«      ..     I  .     .1    .    ....<i.»»  »<•     Kh  u    w     ,>  his  legal  priority  ae.iuire.l  under  the  Statute. 

13.    KoKUIratlon,  notice  of   4th  R.  S.,  t.  ^  ..,„„._That  up.,n  tl,. 

79,  ss.   9   and    19  -  Easement,    constructive       '    '      ">""■       '  ,;     „ ',    ,,. 

....      ,^,_.,  Dlea.hiiL'H    as    tliev    stoo.l    .>n    tlie    recoiil,    tlii' 

notice  of- I'lainlitlpuicha.sed  in   18<'_»  a  pr..i>-  P'^a.i  ng>.    a      u    j  ,:,,„,..,.:„,    ,„  1 

,.,.,,  .  1   ,     ,i,„  iiueslwu  of  the   Registry  Act  .li.l  not  all.'^c,  ami 

ertv  a.    II  niiL' dctemhints  property  anil  t.)  the  I""-  ■•'  "       •'  .   •      i    ,•  i     i  i     , 

•^       '  b  ,,,,,,       1  I  that  as  the  nenmlirance  complame.l.)!  hail  Imn 

n.irth  .pf  it.     In    «.>!»(  a. Iwel,  wli.i  liien  owned  umi  as  ini- i  . .        i 

"  .    ,    ,         ,      ,    ,  le;/ailv  created    n  1S..!»,  Its  mere  continuaiiaMlM 

the     northern    property,    granted    l.y    .leed    to  "•«""> 


n.it  conslitute  a  trespass,  and  that  the  action  as 
framed  sh.iuld  n.>t  he  snstaine.l. 

AVs  V.  Hiintn;  7  S.  ('.  H.,-'s!l. 


14.    Rt'Klstratloii  of  deed  not  prima  lack' 


ilcfendaiil    tlie  privilege    of   piercing  the  soutli 

wall    of  his  huihling,  carrying    his   st.>ve  pij.es 

into    the  tlucs,  anil   erecting  a    wall  ah.ive  the 

s..utli    wall    ..f   the   huihling    to    form    at    that 

heiuhl  the  north  wall  ..f    .lefendaiit's  huihling,        ---     ;--;■  .■•,,; 

*=  ,  ,  ,  •      „•       ...1  ■      '      1  nroof  of  deliverv— lie  .aiustion  in  an  actm 

which    was  higher    than    plamtitls.      Ihis  .lec.l  prooi  "'    uciivcij.  i  f       ,     , 

1    1        .1    1V-I    .,,,,1   tlw.  „lM.>tit|-s  of  ejectment  turned  on  the  execution  of  a  .1ml 
was  not  recorde.l  until   IS.  1,  an.l  tlie  piiiiniiii  s  j 

wasn.ii  iLcoi.ie.i    imii       .   ,  i  from  one  H.  M.  to  H.  M.     L'laintirt  pro.luc.aii" 

solicit.ir    in    seare  i  ng    did    n<.t    search    under  in'ni  one  n.  .  i.  i  i 

S01UU..1  sea....     fc,  f  ,1       1      1  other  evi.leiice  to  the   jury   than    the  ceititieil 

Cal.lweirs  name  after  the  registry  ..f  the  .lee.l  «-  J     •>     ,  ,  ^ 

1  f   /•  11  .    11'.  c.nv  of  the   Ketiistry,  uinler   ueviaeii  ."muiuus, 

hv    which    the    title    passe.l    out    of   (  aldwell  s  ^"VS         '■'"'        ^       \    ,  .i    .  i 

oy     wnicn    mu  i  se..;.  SS  ;    and  the  grantee  swoic  tliut  liu 

possession  in  IWii,  an.l  did  not  therefore  ol.servo  ^ap   .m,  .  b 

r  '  ^     ■      c  s  ha.l  never  seen  the  .lee.l  from  Ins  tatlici.     liii- 

the    deed    cleat  iiL'    the   easement    m    favor   of  na.i  ne\ei    sctuv 

till    .ittii    cieamifc  .hulu'e  wlio  tried  tie  ciuise  left  It  to  the  jury  to 

defen.lant.      Defendant  s  northern  window   was  '"'"b^  "" '""-  ■        ,•     •         ';  i  „  „ 

'*"  .,,,,.  ,   .      ,  tiiid    fr(.m  the  recistrv  as  i.jvmrt /ftfit  evuluiice, 

so  closet.,  plaintitrs  wall  that   it  was  plain  t..  nm,,  ,  om  ine       y       \       ',..•' 

,  .      ,         1  t      1     .   1     1  that  the  .lee.l  hail  lieeii  execute.l. 

one  narrowly  ...serving    It  that  defen.lant  ha.l  mat  uie  .icc  .  .  .  ,  ,,,„ 

"  •>  b  ,  .,,„    i„f,,„].„„'„        //,/,/,  that  thl.>  was  a  niis.lireetK.n,  ami  llwl 

no  separate  northern  wall,  ami  the  defendant  s        "       '  ;  l..liv..,.v   .,t  the 

'  ,  ,   .     .,r-     1      1  1-  .:,   ,  there  was  n..   evi.lence  of   the  .lelneiy    .it  me 

mirthern  wa     ahove  phimtiir  s  l.uilding  resting  Y,         ,  ,,  .,    ,.      ...■     .,,, 

tipon  plaintirs  s..uthern  wall,  was  ..hvious  t,.  'lee.l.     Oa.unon    v.  Jodr.y,    1   K.    .V   t .,  .m. 

anyone  lo..ki.ig  from   the  ..pposite  si.le  of   the  ''^^^^;^^^i  ^^  ^^^  ^^  ^i^^u.^^,,^^^^,  ^...^Xcl. 

street.  \ 
Utid,  that    the  deed    creating    the  easement 
came   within  the   Registry   Act    as    "attecting 


Svt  EJEtTMEM, 
15.    Registration  of  Shipping 


S>.t  SlllPPlXi. 

16.    Registration  of  transfer  of  shares  In 


lands,"  that  plaintiff,  however,  was  not  l.oun.l 

l.y  the  registry  ..f  it  in  1H71,  although  previous 

to  his  purchase,  the  title  having  passe.l  ..nt  ..f 

Caldwell    in    KSC."_>,    but    that    plaintitt'  must  he 

held  to  have  had  notice  of  the  easement  as  the    company-^^^  ^^^^^  ^^^^^  COMPANIES,  1- 

encroacliinents  were  plainly  visible. 

A'oss  v.  Hnnttr,  •_>  R.  &  ( i. ,  44.      ^^     Registry  Of  a  deed  is  not  equivalent  to 

Oil  ajipiul  to  fh(.  Siii>rum  Court  of  Canada,       \  enrt.lment  under  the  Statute  of  Uses  so  as  to 
//,  Id    that  the  continuance  of  illegal  t.ur.lens  ,  transfer  the  possession.  ^ 

on  plaintiffs  property  since  the  fee  had  been  j  Sh^y  ^>  «^-  v.  Chishotm,  James,  ..•.. 

aciuireil  by  him,  were  in  law  fresh  ami  distinct  .^   ^  ..       ■  ,j„ 

trespasses  against  him,  f..r  wiiich  he  was  entitled      18.    Unrecorded  dccd  avoided  hy  a  jud,- 

to  recover  .lamages,  unless  he  was  bound  by  the   ment  recovered  subsequently,  but  regwt«rett 

license  or  grant  of  laldwell.  I  first- Possession  of  grantee-Notice  to  ju  g^ 

■_'.     That  the  deed  creating  the  easement  was  ;  ment    creditors  -  Construction    of  Ke\isea 


lisl 


RELEASE. 


1182 


Statutes  (4th  «eriea),  e.  79,  s.  22  -C  liiiimr  7!t, 
ol  till'  Iti'visfd  Statiiti's  (  nil  sfi  ii'>).  s.  •_'•_',  iviuU  : 
"  A  jiiil>,'iiii'iit  duly  ii'j.'i.sloiiMl  iiiiil  dxiki'tcil  sliuU 
liiiiil  tlif  liiiids  ol  till'  piiity  a^'iiinst  wlimii  tlit^ 
jllil;.'liiclit  ^Iliill  liiivf  liiisM'd,  fiiiiii  and  atliT  lllf 
rei.'i>try  tlii'ifot  in  tlif  (.•diinty,  nr  dif'tiitt,  wlieie 
the  liiiids  arc,  as  fired iially  as  a  liicil'tgugi', 
MJHtliir  mirIi  lands  slisU  have  liccn  ati|uin'il 
liflnriMir  iiftt'i' the  regiHtciing  ofsueli  jiidgnient  ; 
ami  deeds,  or  nic)itj.'aj;es  of  such  lands  duly  exe- 
iiitud,  liut  not  registered,  shall  lie  V(pid  against 
the  judgtncnl  creditor  who  shall  first  register  his 
jilill.'liient." 

Tlie  IJank  of  Uritish  \oitii  Anuiica  recovered 
II  judgnient  against  one  Merriani  and  otiiers, 
.liiliiiaiy  iMst,  IHTii,  ami  registeied  tlie  judgment 
I'll  tiif  following  day, 

0)1  the  23rd  Ainil,  IST.'J,  Merriani  conveyed 
ccilain  lanils  to  one  Fraser,  under  whom  defend- 
ant claimed,  who  went  into  possession  and 
iinjiiiived  the  land,  and  was  in  possession  at 
the  time  of  the  recovery  and  registry  of  the 
jiidj^'iiient.  hut  neglected  to  record  his  deed 
until  January  2Sth,  ISTO,  some  days  after  the 
icgii^tiy  of  the  judgment. 

Oil  May  .Ith,  187!),  after  execution  had  lieeii 
iliily  issued,  the  property  was  sold  at  Slieritl''s 
>.ili'  to  plaintiff,  the  general  manager  of  the 
Hank  (if  Uritish  North  America,  who  hroiiglit 
ijtvtiiiciit.  Neither  the  plaiiitiU"  nor  the  hank 
of  wliich  he  was  manager  had  actual  notice  of 
the  cmiveyance  to  Fraser,  or  of  the  fact  of  pos- 
M<siiiii,  until  just  jireviously  to  the  sale. 

H'hl,  j„r  McDonahl,.!.,  McDonald,  ('.  J.,and 
>initli,  .1.,  eonenrring,  that  the  jirior  unrecorded 
ileuil  to  Fraser  was  avoided  hy  the  registry  of 
the  judgment,  and  the  [ilaintitl' was  entitled  to 
I'fCdver. 

Wfntlierhe,  .J.,  (//.«xr /(^i»(y.  | 

ilriitiUiy  v.  /1/ukli ,  7  R.  &  ('•.,  27  ; 
7  V.  L.  T.,  ,■)(». 


in  tlieir  view  of  the  evidence  fioin  the  .liidge, 
found  that  ilefendant  had  heen  guilty  of  n-'^li- 
geiice  in  relying  on  the  certificate,  instead  of 
having  the  title  searcheil  hy  the  Kegistrar. 

/''<•  Mitchie,.!.  — Kveii  it  the  .lefeiuhmt  had  in 
his  letter  rei|nested  the  itegistrar  to  seanli  the 
title,  he  was  to  hlame,  as  the  reply  of  the  Kegis- 
irar  contaiiieil  no  reference  to  the  title,  and  did 
not  sho\\-  that  a  search  had  lieeii  made. 

Si  nihil ,  defendant  would  have  acteil  with 
reasonahle  ililigence  had  he  caused  a  search  to 
hi,' made  hy  the  Hegistrar,  notwithstanding  want 
of  diligence  hy  the  {Registrar. 

ShikIoii  v.  J/c/m  ,  2<l  N.  .•<.  K., 

(S  It.  &  (i.),  .-.42. 

20.      rnrci-ordcd   deed    -  Subsequently 

recorded  mortgage  given  priority  over— J.  K. 
.McL.  heiiig  entitled,  l>y  right  of  his  wife,  to  an 
interest  in  certain  teal  ami  personal  juopcity, 
heing  an  estate  of  wliiili  M.,  the  wife,  was  one 
of  the  heirs,  they  joined  in  a  mortgage  to  plain- 
tiff of  all  their  said  interest.  ( Jn  plaintiff  seeking 
leiiayment  of  the  amount  loaned,  defendant, 
one  of  the  executors  of  the  said  estate,  resisted 
the  claim,  on  the  groinid  tliat  six  years  previ- 
ously J.  R.  McL.  and  wife  hail  conveyed  all 
their  interest  in  said  estate  hy  deed  poll  to  hei* 
mother.  This  deed  was  never  recorded,  and 
the  plaintiff  did  not  know  and  had  no  means  of 
knowing  of  its  existence.  The  mother,  although 
aware  of  idaiiitiff's  mortgage  at  the  time  it  was 
made,  concealed  from  him  the  fact  of  the  deed 
to  her. 

Jfi/il,  that  having  so  concealed  from  the 
lilaimiff  what  it  was  her  duty  to  reveal  to  him, 
the  mortgage  should  he  given  ])riority  over  the 
deed  jioll,  and  plaintiff's  claim  satisfied  out  of 
the  estate. 

Wi^l  »■.  Mai  III  "OH  1 1  (il.,  ;{  N.  S.  I).,  429. 


1».  Solicitor- Skill  and  diligence  in  in- 
vesting money— Search  of  title  by  Registrar 
of  Deeds  -Defendant,  a  solicitor,  jnactising  at 
iiiidgetown,  invested  money  of  the  plaintiff  on 
I  innperty  which  was  afterwards  j)roved  to  have 
'ii'tii  iiicumhered,  in  conseipience  of  which  plain- 
tiff sustained  loss.  The  defeinlant  did  not  per- 
"'iiiilly  search  the  title,  and  the  evidence  was 
^t'litiicting  as  to  whether  he  had  rennested  the 
Kegistiiir  of  Deeds  at  Weymouth  to  search  it  or 
'lii'l  relied  on  a  certificate  of  the  Registrar, 
^*hi(.li  was  afterwards  found  to  he  a  forgery. 

Hie  .Judge  who  tried  the  cause,  without  a  jury, 
f'liiiul  that  defendant  was  not  guilty  of  negli- 
S«ice,  and  gave  judgment  for  defendant. 

On  uppeal,  the  Court  in  banc  differing,  -ewiWi , 


REL.4T0R- 
SVt  PKACTICE. 


RELEASE. 
1.    Appeal  bond  on  appeal  n'om  Justice  of 

Peace— An  Attorney  one  of  the  sureties— 
Waiver  of  claim  against  surety— An  appeal 
heing  taken  from  a  Magistrate's  decision,  the 
defendant  and  one  W.,  an  attorney  of  the 
Supreme  tourt,  became  sureties  on  the  appeal 
bond.     On  the  giound  of  W.  being  a  surety  the 


11, ^:{  KKLKASE.  IIM 

lioihl    Mils   litia    im:;iilai'   .iiid    the   iipixMl    tlis-  from  iloffiiiUiit>  llu-  ImI.uhc  iliic  oh  tlir  f.nr  nf 

iiii»!toil  l>y  tlic  SiiiMciii.'  Coiut.     I'liiiiititV  tli.-ii  the  iiotuH  iiftur  ciu.liliii),' llif  i'l'J'J  Kn. 
n.soil.d  to  liis  o!i;j;iii;il   jinl^'mriit .  lUul   tlif  cxr  //./«/,  )»•>•  Yomi^.  ('.  .).,   Desliiiiivs  aii.l  Wil 

.•uiioiiliciiiKi<aiiinf.liiiisiiti.-<liiMl,«ii.MliU'f<'ii(liiiit  kiii.s.  .1.1.  (lilis.s  iiiid  Do.ld,  .1.1.  dU^>iil,,ni,, 


Hut 


,„,  ,1,,.  |„,|,,1.  tllL.    H.      IJ.     Co.    Imil    lllisohllely    ilisrliiii:,'r.l   th,. 

//</(/,    lliiil    III'   fould   not    ircovci,  US  |p\    llic    ilffciiiluiits  ffoiii  nil  lialiility  on  ii.coiiiit  ol  the 

(.•oilf.se  he  hull  tilkfli   he  h.i.l  >.\iii\  r.l  ;ill  liyht   of    notes,   ami   'hiit    ihf    iirtion  eoiii,!   not   !»■  iiniii 

cliiini  iigiiilist  (U'fenil.mt  nielei    the  ii|ipf:il  hond.     taiiied. 

MrX.'il  V.  Moi-'/k'Ii-',  :i  N.  >>.  I'..  ;{I4.         /'./■  Wilkiiis,  .1.     'I'liiit   hy  the  ai(e|itiiiirc  ,,i 

the  iiiinposition,  the  H.  ii.  Co.  Iieiaine  viitiwlly 
'2.      ('OinpOslUoil    deed         At'tT|>tailCt'     of    |„„.ti,,H  to  the  .omiioiitioii  dee.l,  and  liouml  1,\ 

eonipo.sition      Ertfct   of     Defendants  weie   the    .iH  it„  tcinis. 

inakefs  of  two  pfoinissoiy  notes  to    A.   iV    Co.,         /,f/,c.o//  .  /  ft/,    v.  Sulli  r  1 1  nl.,  lOld.,  T'.I.VT.H. 
whi'li  the  lattcf  indorse.l   to  the  Halifax   iJaiik- 

in.L;  Company.  I'.efoie  the  notes  l.ecame  due,  .j^  EXPCUtlOIl  Of  -EffCt't  Of  llOtC  aU|HMMl('(l 
lioth  defendants  and  A.  .V  Co.  lieeaine  iii.solvent.  ^^  aigiiature  -Receipt  of  composition-  Tin. 
A  eoiii|io>ilioii  died  was  exeeiited  lietweeli  de-  |,|||j|n|)y  ,.x,.,iited  a  release  to  the  iiiikil  uf  ii 
feiidaiits  and  their  i-redilors,  hy  which  the  latter  |.,,,.),(j||  promissory  note,  on  which  defeiidaiil  wis 
a-ived  to  leceive  ei;j;hl  shillings  and  liiliepeiice  ^^^^,^^  as  indoisef.  'I'lie  release  was  in  tlie  iin.M 
in  the  l)i>uiid,  ill  full  of  their  respective  delits.  j,L,m,,.ni  terms,  which  were  iidmittedly  wi.K' 
'I'l.is  deed  Wiis  not  executed  hy  the  H.  15.  Co.,  ^,,„, „,_,],  to  imhide  the  note  sued  on,  hut  it  \v:is 
hut  the  Coiiipaiiy  took  new  notes  from  the  de-  „jy,u.,i  j,,  the  following  fiirin  :—" 'I'he  Kxcliaiigi' 
feiidaiils,  eiiil.raciiig  at  this  ratio  all  their  clailn^s  y^,^^^^  ,,f  Varmouth.  X.  S.,  for  and  in  lespeet  (,f, 
auaiiist  the  defendants,  on  proniis.>oiy  notes,  ,^,„i  ,,„iy  f,,,.  ,i,|,l  i,,  n...<|,ect  of  the  several  claiiih, 
including  the  two  note.-  in  ipieslion,  and  gave  ,„,t^„,^  j.onds  and  .securities  for  inoiiey  mentiumil 
the  following  receipt:  "  Hiilifax  Hanking  Co.'s  ,i,„i  ,.^,fi.,.,.ed  to  in  the  schedule  of  tiie  Kxcli.uigi' 
Otiicc,  Halifax,  •-'4th  April,  1S.\S.  —  Keeeived  p,,,„k  ,,f  Viirmoiith,  X.  .S."  The  notes  sued  nn 
ffoin  Messrs.  .Salter  &  Twining  the  sum  of  onu  ^^.^^.^  ,,,^,  inelud.ed  in  the  schedule, 
hundred  and  twenty-two  pounds,  ten  sliillings,  jj^^^/^  ^^^^^^  jli^,  j,,,.,,,^  ,,f  ji,^,  „iu„atuie  diil  imt 
currency,  lieing  the  composition  of  eight  shil-  ^,„„t,.,,l  the  general  provisions  of  the  ielea.su,  ami 
lings  and  iiinepeiice  in  the  pound,  on  their  two  ^j^.^^  j,lainlills  could  not  .set  u])  that  their  e.xoiii 
notes  of  hand,  in  favor  of  Messrs.  Allison  A  Co.,  ^j^^^^  ^^j.  ^j^^,  i„^tniiMent  was  void,  after  having 
uniountiiig  to  i'.'SII,  and  discounted  l.y  Messrs.  ,.^,^.^.i^.^,,i  ,„„||L.y  from  the  estate  on  the  stiength 
Allison    .S:    Co.   at    this    l.ank,  the  iiotes    l.cing    „f  tlie  assignment. 

retained    for  the    purpose   of    receiving   a  divi-  y/j,   ;,xch(ui<jr  Hank  v.  ISbihi', 

delid   from   the  estate   of   Alli.son   &   Co.— X.   T.  r,  1^,  ^ifc  ( I . ,  .'aS. 

Hll.i.,  Ca.v/nV,-."  ,  !  0„  npi.nhnl'n,-,,  Cmmil, 

The  cashier  of  the  H.    h.  (  o.   stated,       tluit  " 

the  lu.tes  were  left  in  the  bunk  l)y  defendants,  Xot  every  attemi.t  l.>  a  form  of  executi.m  to 
of  theif  own  accord:  that  had  the  notes  l.een  restrain  the  full  operation  of  a  deed  ,;u,  In 
reouired  l.y  the  defendants,  they  would  have  treated  as  a  non-execution  of  it.  Where  imIwI 
been  delivered  to  them,  the  bank  consiilering  of  assignment  by  debtors  to  a  trustee  tor  the 
llie  defendants  whollv  discharged  of  any  further  benefit  of  all  creditors  who  should  execute  tin- 
elaimson  then,  on  account  of  these  notes."  He  deed  was  executed  by  the  ,.hiintirts,  who  im 
als.,  stated  that  there  was  m.  reservation.  It  pcnded  a  note  that  they  executed  only  m  rt^pi' 
appeared,  however,  that  one  of  the  defendants,  of  certain  claims  scheduled  to  the  deeil  ;ii 
at  the  time  the  notes  were  so  left,  .said:   "The    amounting  to  17:<,.-..S1,  and  it  appeared  that-ii 

bank    is    fully    entitled    to   receive    the    whole    .seiiueiitly  thereto  they  received  a  sum  ot 

amount  of  the  notes,  and  with  that  considera-    from  the  trustee  by  virtue  of  their  execut 
tion  I  leave  them  with  you  for  the  purpose  of    the  deed, 

iccoveriu'r  from  Messrs.   Alli.son  (A  .t  Co.)  the        HM,  that   the   idaintitfs   were   b..u 
dirterence^ffoin  their  assets."  note  did  not  amount   to  a  refusal   to  execut.': 

The  H.  15.  Co.  .subsequently  obtained  ten  and  the  plaintitfs  having  received  paymeiiniinlii 
shillings  in  the  pound  on  the  face  of  the  notes  the  deed  coidd  not  be  heard  to  repudiate  it  au'l 
from  the  estate  of  A.  &  Co.  (neither  A.  &  Co.,  deny  their  execution.  WUklnsoi,  v.  Awjln-di' 
nor  their  assignees,  it  wouhl  appear,  being  jhniian  (lohl  Muiii„j  Comimiiii  (\^  ^i.  V>;  >-'' 
aware,  at  the  time,  of  the  transaction  between    held  to  be  inapplicable. 

defendants  and  the  bank),  and  the  action  was;        Th  Exrhawj,  liauk  of  Yarrnvnth  v.  /i'•'J•«• 
brougllt  by  the  assignees  of  A.  &  Co.  to  recover  !  •'»  Ai.p.  t  ^i^-.  - 


■lo  ilp 

■d 

lillii 

■uh- 

imliiv 

idli  »t 

mil.     Till- 


UN.-. 


RELKASE 


118U 


4.   (luarantee    KelcaMc  by  vuriins  terniN  /till  hoi.iiny  tiic  inifwai  note,  whidi  was  ,i 

of  a;;reenient  guaranteed     H.   K.   K.,  having  j  iic),'(.tial)le  iiiHtruim-nt. 

' I'  <iii|)!..y.!.l   l.y  .Iffi.ndant   to  l>uil.l  a  vessi'l        //-A/,  r«'Vci«inK  the  .l.'cisioii  of  .(,,|,nstom.,  .1., 

fni   him,  uniidoy..,!  plainlitl' as  a  «ul.contnu'tor    that  the  plaintitf  coiilil  not   mov.T  on   tin- note 

t(.  plank    iii'i-.      Ik'fcmlant   fxeiMitt'd  ami  ileliv-    hiuhI  on. 

iicl    III   plaintitr  a   gnai'antue,  lia.-cil    npoii   an 

au'ii'iiiiunt    lictween    the    latter  and   !f.    K.    |{,, 

fur  tin;  pi'ifoi'niance  of   the  Nulicontract,  whieh 

iiiiil  heen  ilra«n  uj)  liut  not  siyneil.     A  elaiise 

vaiyiiij,'   its    terms    havin),'    heen    added    to  the 

aj.'ieciMent    .siihseipient    to    the    ^'ivinu'    of    the 

L'ualantee, 


Miirraif  v.  fla^loiniHiiij  el  nl.,  \   \{.  &  (;.,  ;!»•». 

H.    Kclcasf  by  agiiit  without  authority  - 

Defendant,  I).  Mel).,  l„.i,i^  part  owner,  with 
piaintitl  and  the  other  defendants,  of  a  hanpie, 
«as  anthori/ed  liy  the  othrr  owners  to  sell  her, 
md  dill  so,  depositing,'  plaintiU's   share  of   the 


,/  ,,    ,,     ,    ,,        ...     .      f  .,  ■"•  ""'  ••^|"'-"i"'o  |iiainun  s  snare  or    tne 

//■/'/,  that   the  ellect   of  the  variation  was  to  nioeeeds  to  l.w  ,.wi.  ,.i-,..lif    ;.    .1  i.-  .        i>     . 

I  1  t      1     .     r  1-   1   i-  ,  pioteeds  to  nis  own  eredit,  in  the  I'lelou  liank. 

1('\t'     I    l>rciljl:iMt      iif     It:il,llll  f    ..II     tl.. *....  „ 


nliive  defendant  of  liahility  on  the  guarantee 
ThilH-tlmii  V.  /'i/irioii,  '.i  N.  .S.  {).,  •j-ji, 

5.   or  cause  of  action    Attorney's  llvn  for 

cosU  The  (.'oiirt  will  not  set  asi<le  a  release 
(il.taiiied,  jjending  suit,  hy  defendant  from  plain- 
litf.  nor  compel  the  defendant  to  pay  plaintitl's 
iiltiMiiey  his  costs,  where  tiiere  has  heen  no 
("llu>iciii. 

Jnliiis/oii   V.  Miilhixoii,  dames,  !CJ. 

«.   Ofcausc  ©faction    Solicitor's  llcn  for 


I'laintitr  wrote  to  one  S.  ( '.  in  these  teiins:  — 
"  1  want  you  to  put  my  share  of  the  money  in 
the  hank,  to  my  credit.  1  have  written  1). 
(meaning  I).  Mel).),  stating  that  I  have  author- 
ized you  to  ih)so."  S.  ('.  hiid,  hcfore  this  letter 
lame  to  him.  drawn  the  money  from  the  hank, 
the  manager  having  advanced  it  to  him  on  his 
own  ehei|ue;  liiit  ilefendant,  I).  .\!cl).,  upon  the 
letter  lieiiig  shown  to  him  l.y  ,S.  (\,  signed  a 
relea.se  to  the  hank  from  any  claim  on  account 
of  the  j)ayment  of  the  money  to  S.  ( '. 

//'/'/,  that   I).    Mel),   was  not  justitied  in  re- 
leasing the  hank  ;  that   in  iloing  so  lie  assumed 


„      .    „  .  " a  '"^  ......r.  ,    i,Mt,    ,,,    iiDiiig   wo   lie  assumeil 

costs  -Satisfaction  piece  alleged  to  have  been  tl,,.  liahility  which  the  hank  ha.l  ineurre.l  hy  the 
given  in  fraud  of-Held  good  in  absence  of  nnwarrantahle  payment  to  ,S.  ('.of  the  money 
proof  of  collusion  -  Co.sts  --  Appeal  from  a  I  placed  to  his  (Mcl).'s)  credit,  and  that  plaintitV 
u.-riMon  refusing  to  .set  aside  a  satisfaction  i.iece  was  entitled  to  a  decree  for  the  am.mnt  of  his 
allej-'ed    to    have    heen    given    in    frau.l  of    the  ;  sha.v  deposited  in  the  hank. 


|4iii)ilitr's  .solicitors  for  the  purpose  of  depiivin^ 
lliiiii  of  their  costs.  I'hiintitl'  had  olitained  a 
iiiilgiiieni  against  defemhint,  from  wliich  defend- 
imt  had  appealeil.  \Vhile  the  appeal  was  pend- 
ing, one  K.  'I'.,  without  the  knowledge  of  plain- 
mlV  solicitors,  for  an  apparently  inadeciuale 
^"ll^ille|■ation,  olitained  an  a.ssigninenl  of  the 
jiiiliriiieiit  from  the  plaintilf,  and  a  .satisfaction 
inite,  under  the  authority  of  which  the  juth'- 
iiiiiil  was  discharged  two  days  later. 

It  did  not  aj.pear  that  lliere  was  any  collusion 
'11  the  pa.l  of  the  piaintitl'  and  defemlant  to 
'Iti'iive  the  solicitors    of   the  former   of   their 

ttiSt.<. 

/AW,  that  the  a]ipeal  must  he  disnii.s.sinl,  liut 
'II  view  of  the  peculiar  nature  of  the  circum- 
KiiiKX's  without  costs. 

MiFnrlaiii   v.  Smi'/i,  7  K.  it  «i-,  .■')4I  ; 
SC.  L.  T.,  04. 

••  or  right  of  action  on  note  by  accept- 

anct  of  renewal  — At  the  maturity  of  defen- 
•laiifs  note  to  plaintiff  for  !?-_'(j;{.7.-)  the  defendant 
gwe  plaiiititta  renewal  note  for  jSI'iO  and  prom- 
I'lii  to  p,iy  the  balance  in  cash  next  morning, 
"lii'.li  plaintiff  said  was  all  right ;  hut  on  the 
saii-.e  day  the  original  note  was  sued,  plaintiff 
38 


/I'-mi"  V.  M f Donald  It  al.,  K.  K.  1).,  17. 

I    0.    Release,  decree  to  execute  -  D.  made  a 

I  niortgage  to  defendant's  testatoi'  to  .secure  the 
I  payment  of  three  promissory  notes.     The  notes 
I  were  j)aiil  and  handed  over  to   I).,  upwards  of 
i  twenty  years  before  this  action  was  brought  by 
1).  to  eomj.el  defendants  to  execute  a  release  of 
the  mortgage.      During  the   sui)se(|Ueiit    period 
no  payments  were  made  hy  1).  or  <lemandeil  of 
I  him,    and    the   estate    r)f   testator   was    settled 
without   any   reference   to   the   mortgage  as  an 
outstanding  debt  due  the  estate.     After  bring- 
ing the  action  1).   became  in.sidvent  and   made 
au  assignment  under  the  Insolvent  Act,  and  his 
assignee    inter  vening,    under   an    order    of    the 
t'ourt,  became  ])laintiff  in  the  suit, 

f'lhl,  that  the  defendants  must  he  decieerl  to 
execute  a  release  ofjthe  mortgage,  though  with- 
out costs,  they  nf)t"having  oj)posed  the  jHoceed- 
ings  of  plaintiff. 

IMI,  A-'xii/Hfj:,  V.  Jlrowtiel  riL, 

R.  K.  \\,  20. 

10.    Release  of  mortgage -Evidence  of 

memo,  by  testator  to  eftect  that  mortgage  was 
not  payable  to  heirs,  executors,  &c.,  not  evi- 


1187 


REPLEVIN. 


\M 


deni'e  of  releaae  -I'laiiititr,  ^i.s  iitlniiiii»tnitiix,  Kiiilwiiy  m  Hnlifix,  wlio,  at  tlu;  inHtuiuc  nt  ||., 

mmglil    to  foiril.isc   ii  iiioit>.Mv;i'  for  fJIKI  iim.li'  rffiisi'd  K.  .Ifliv.T  tlif  ^oods. 

l.y   .U'tfiidiiiit,    who,    in    liis  nmwvi;  Htt  oiu  a  //,/,/,  W.iitlii'il.i-, . I. ,»//».-" /i/i/i./.tlial  uu'l.iilif 

HerifHof  tl•aIlHactioll^^\vitlltlllMU•cl■a^'l•llilll•^•«aI■.l  ugii'i'iiii'iit   aii.l  (omsc   of   .UmIIiih   l>ftw.iii  tliu 

to  the  iiiortfe'UK*',  and  fmthiT  alligi-d  that  dt-  |.artifs  M.  ha.l  an  f.inital.le  tilh>  to  tin 


itasfd  inoimajjeL'  had  dclivt'ifd  to  liini  a  niiiiio- 
lanihiin,  si^ini'd  \>y  him,  as  follows;  "  T  hi' 
nioitgagu  which  I  indd  of  W.  .1.  W.,  iK-aiing 
dati',  itf.,  for  i-'tKt,  JH  not  payaliK'  to  ni.v  ln'iif, 
I'Xi'iiitors,  or  adniinistialois  after  my  dvat 


which  waH  ti'auHf erred  liy  the  indoinfmtni  loihi. 
plaint  ilf. 

•_'.  That  H.  in  [mrsnance  of  the  agrctnanl 
havinj,'  taki-n  stejm  to  put  the  ^oods  in  thi  pn,. 
.se.Hsion  of   M.,  the  fftft't  of  the  whipnitMil  ami 


I.    \V.    \V."     The   memoian.hnn    was    not    pro-  other  acts  taken  to>,'ether,  gave  M.  the  leyal  as 

diued,  l.ul  on  pr.xif  of  h>8»  secondary  evidence  well  as  the  e(iuital.le  title,  and  placed  tiieil.tcii.l 

was  given,  which  the  Judge  considered  of  a  sus-  ant  in  the  position  of  wrong-doer, 
picious  character.  -I/-",  tl'^t  after  the  passage  of  the  .hidicatnio 

//«/(/,   that   the   luem.irandum,   even    if   there  Act  the  dudge  presiding  at  the  trial  was  ImmiimI 

were  no  suspicious  circumstances aliout  it,  would  to  give  etVect  to  the  cpiitalde  rights  of  llie  [mi- 

not  operate  as  a  release  of  the  mortgage,  either  tiesthcnigli  the  causehadl.een  at  issue  prcvi(ai>iy. 


at  law  or  in  eipiity,  ami  that  plaint  ill'  was  en 
titled  to  a  decree. 

U'diidiror'h   V.  W'odilirorfh,  K.  K.  1).,."W7 


REM- 
•s  c  L.\>DLOR»  AND  TENAM. 


REPLEVIN. 


Mtrhr^nu  V.  Mrhoiialil,  (5  II.  it  C,  •.'4'.' ; 

C.  ('.  I,.  T,,  UX 

Oil  ii/i/iKi/  fo  Ihi  Siijii-i  nil  Court  (ifCaiiii'lii, 
//•til,  atiinning  the  Judgment  helow,  Ilniiy, 
.J.,  iliMiii'iiiii,  that  the  goods  were  .■sent  to  liiu 
agent  at  I'ietou  to  be  forwarded,  and  that  lie  imd 
no  other  interest  in  them,  or  right  or  duty  c(jii- 
nected  with  them,  than  to  forward  them  to  llicir 
d'istination,  and  could  not  authorize  the  agent  iil 
Halifax  to  retain  them. 

IIilil,  (ilw,  that  whether  or  not  a  legal  title 
to  the  goods  passed  to   M.,  the  position  of  tlie 
agent  in  retaining  the  goods  was  simply  lliat  nf 
,     ,  .  <.„i„    a    wrong-doer,  and    M.  had   such    an   eciiiituhle 

1.    Agreement  to  forward  goods  for  sale  \^  ^„^.,,    ,.„,,,  ,„„i  ,ight  to  the  posse. 

topayadvances-Equitabletite    Transferor   -      -'-^^  a.s  would  prevent    the   agent  f,on, 

-Replevin  -  Bill  of  lading  -  Judtcature  Act    ^  ^,^^^^^ 

—Enforcement  of  equitable    rights    under—  " 

H.  \  M.  entered  into  an  agreement,  under  which  j 

M.   was  to  sui)]i!y  H.   with  tin   plates,  money, 

etc.,  to  carry  ou  the  business  of  packing  lobsters, 

and  H.  was  to  forward  to  -M.  all  the  goods  which 

he  should  pack,  in  order  that  the  supplies  might    ^.^^^^    ,^,„i   plaintiff  did    not  reply,    relying  mi 

be  paid  for  out  of  the  proceeds  of  the  sales  of ,  ^j^^   statutory     replication    denying    the    facts 

the  goods,  M.  being  paid  a  conunission  for  sell-  ,  ^Yl^^^,^\  j,,  the  plea. 

ing.      This  agreement  was  acted  ::pon  for  six,      Htlil,  that  a  replication  was  necessary  to  put 

years,  nt)t  only  in  relation  to  lobsters,  but  also  j  ^j^^  ^.,^,,3^  ^^^  issue. 

in  relation  to  beef,  which  H.  was  packing  during        ^eave  given  to  the  plaintiff  to  tile  a  replica 

the  latter  part  of  this  period.     At  the  end  of  ,  ^.^^^^ 

1882,H.wa8indebtedtoM.from!?7,000to$9,000  Breniuer  v.  IVttUuct,  .S  R.  &l.,4Sl. 


(JC.  L.  T.,  :iS.-p: 
V2  .s.  (,".  R.,  417. 

*2.    Avowry  for  rent  -Replication  neces- 
sary —  Defendant    in     replevin    avowed    fur 


on  the  account  between  them.  In  the  month  of 
December  of  that  year,  H.  shipped  180  cases  of 
beef,  of  the  value  of  .*1,(KI0,  on  board  a  schooner 


3.   Avowry  or  cognlzance-Not  a  plea 

within  8.  243,  P.  A.- When  the  plaintitf  m 


beet,  ot  tne  value  01 .7i,uviu,  on  ooaiu  a  BVIH.U1.C.    t..- — ,  ^  „io.„li„,r  to 

bound  to  I'ietou,  consigned  to  the  freight  agent  ,  replevin  proceeds  to  trial  ^^  ^^Pf  '*;;, 
of  the  Intercolonial  Railway  at  that  place,  but ;  the  avowry  or  cognizance  of/lef""^'"';'       ' 
addressed  to  M.      He  wrote  M.  informing  him    mis-trial,  an  avowry  or  '^°H;"^''"?«  ".^.  '^  '^l,, 
of  the  shipment,  and  forwarded  to  him  a  bill  of  j  plea  within  the  meaning  of  section  M 
ladingof  the  goods,  on  the  margin  of  which  M.'s    Practice  Act.  ^,     ,      ,    ,    9  xhoni    isn. 

name  wivs  indorsed.      M.  transferred  the  bill  of  |  Skinner  v.  Clarke  el  al.,  2  Ihon.., 

lading  to  plaintiff  as  security  for  accommodation  j  -pnlpvln- 

indorsements,  and    plaintiff   brought    replevin        4.     CommOH    laW    'e'n**^  ?Vs    ,  104, 
against  the  station  master  of  the  Intercolonial  1 2nd  R.  S.,  c.  134,  s.  171-Ot.  oin  xv.    .,  • 


llfS!) 


REPLKVIN. 


1190 


0.  XLV.,  R.  1.  riiiiiiiitr,  wlio  «,(>,,«  ti.Tcn.ii  timl  "hv  imvsuih.mI  i|„.  ,,ninuiit  f.iiHK.nijjir.iii.l 
Amrn.iiii  li-l.iiiK  vr>s,.|,  ,.Mr..|l,.,i  „t  ll,,.  pmi  ,,t  wImitaL'.'  wa.s  c„it..,I,  ;.h.l  Ir.  ,.iKl,mi..l  ii  .•l.n,ue 
Vin,.l  Haven,  it,  the  Stan- ..t  Maiiir,  put  llir.l.-  f.,r  il„.  ai.i.mnt."  I'laintiU'  tf.stifiu.l  tli.U  this 
fHHlanl    in  p<>^M■sKir,ll   ..f    her  as   luasttT,  for  a    ainniini  wiiH  piiiil  iiiidrr  pi..tcsl. 

//'/'/,  llmt  ilffi'ii.laiit-  (iiiil.l  not  l)f  privluili'il 
from  Hliowilij,'  tlial  tlicir  lini  i.iiiaiiieil,  itml  that 
ilu'  vi'idiit  for  pliiiiititf  iniiNt  lie  wt-t  iwiile. 

L'lirsf.ii  V.  (•(jrluft  ,t  III.,  •_»  K.  i<c  (i.,  ;(•_'•.» ; 
'2  C.  L.  T.,  !»4. 

«.     Ilrmand  nnil   riTiisal   not  rniiilNlte 

where  posseHHion  wronfjlul     Tlic  writ   h11.m,'ciI 
only   an    nnjiist    (Ivttnticjn,    ami    no    unlawful 


tisliinK   voyajji!   from   tliat    port.     'I'liu  whipping' 

iiiiidcs   iiri.viilcil    that   the   (lefenihint  ami  tin> 

ricw  shoiilil  lie  paid  with,  and  inturcstcd  in  tin- 

ri-!i  to    lie   eiuii.'ht    in    the    prosecution    <>{    the 

V(>yii;,'e,  in  certain  speoifiud  pfoportioMH  thereof. 

I'liiiiititf,  lieeoniinu'  dissati.stjed   with   the  deten- 

iliiiit,  through  an  ai.'ent  demanded  possession  of 

the    ve.isel    and    lish.        Defendant     replied  ;  -- 

"There  is  the  ves.sel  on  the  flats,  you  can  take 

her;  hut  an  for  the  fish,  neither  yon  (the  agent)    takiuL'' 

iK.r  Lane  (plaintiff)  shall   have  it.      I  am  going         //,/,/    ,i,,,    ,i  .•    i  t      i         ,    ■ 

,,    I,   ,  ,,         ,  ..     ,  ,  -         //'''/,  tliat   the   possession  ot  defenilant  lienig 

III  M'll   It   to  pay    myselt   and  erew.         '  a  ntitl'    „„.  ,  „■   ■  i  ,  . 

.hereupon  l.rought   replevin  for  hoth   vssel  anil    ;.::;';:;,"'   ""  ''"""'"'   ""^    '■'"""^""   '"  ^"■^^"'■' 

Hsh      Defendant,   in   his   pleadings  an.l    at    the  j  "      „,,/,„.,    ^.    /_„,,,/„,     .,  ,.    ^,  ,       ^.,„ 

tnni,  msisted  on  a   right   to  retain  possession  of 

tht  vessel  from  the  date  of  the  writ  (!lth  Oet 


i«;/A  that  there  must  he  a  new  tiial. 

/'"•  N  oung,  C'.  .).,  tliut  the  action  wu.s  main- 
taiiiidile  for  hoth  vessel  nnd  fish. 

I'n-  DesHarre.s,  J.,  that  it  wa.s  inaintainal.le 
for  the   vessel,   Init  f/"/'   Diuhl  and   Desliarres, 


iiiT)  until  the  3i,si  Decendier,  when  the  lishing      ^'    "emjind     Unlawful  takins    Plalntlir 

season  chi.sed  for  the  year.  liroiight  an  action  of  replevin  for  certain  gooils 

The  jury  found  for  the  plaintitr.  '*'-''''•*'''    ""''*'''   ''   ^^i"''""   "f  <li«tress  for    water 

Hil.l,  lirst,  i„r  Johnstone,  K.  ,J.,  Dodd,  Des-  ; '""'''"  '■''''''"^■''  ''>'  '''^'  ^''ty'  '^'"1  the  writ  allege.l 

lliures,  and  Wilkins,  .1.1.  (Voung,  C.  J.,  f/L.  »<-    ""  ""J"**'  "'''t^'"" '""  '-""tained  no  allegation 

.....I  .I...  .1...- -  1  .   ■  .       '  !  "f  i"i  uidawful  taking.     Defenilant  denied  the 

detention,  and  pleaded  a  second  plea,  justifying 
under  a  distress  for  water  rates,  to  which  p'ain- 
titr  replied,  disjmting  the  lialiility. 

//'/'/,  that  as  there  was  no  compla' it   in  the 

U->'i(,t  for  the  fish,  "the  parties  l.eing  tenants  '  "'"  "^ '"'  ""'"''^"'  »'''^"'K. '""1  "<•  l"""f  "t  a 
in  Lunimon  of  the  ti.sh,  ami  tiie  plaintitl'  never  '^''""""^  "^  t''"  t"""lH  ''V  I'laintilT,  he  could  m.t 
iLiving  heen  in  actual  possession  thereof  '"*''■'"■'■'''  '"  ^''''  ^"''"'  "^  '^"-'l'""- 

Stroudly,  /„/•  Voung,  C.  .1.,  Dodd  and   Des-  j  ^'"'"^  ''■  ">■'">  "'"'"I ''"''^  -'  «•  *  <i-  -'• 

fones,  .1.1.  (.lohiLstoiie,  K.  J.,  and  Wilkins,  J,,  I 

'ti.'Miii;,i;i),  that  section  171  of  chap,  i.u.  Re  i    8.    Discontinuance- Entry  of  Judgment 

viseil  Statutes  (second  series),  evteiided  the  '"'"'  defendant— Where  plaintiff  discontinued 
tiiininou  law  remedy  as  regards  the  action  of  '^"  ''^'li"!'  "f  replevin,  the  defendant  liaving 
^liliviu.  jiossession   of  the  goods  under  a  return    Imnd, 

/''/•  Johnstone,  E.  J.,  and  Wilkins,  J.,  that  *''^'  •-'"•"'^  declined  to  aUow  defendant  to  try 
the  said  section  was  merely  declaratory  of  the  ' '•'''^  cause,  or  to  enter  up  judgment  dt  nfnriio 
iiiinmon  law,  that  the  "taking"'  mentioned  i '"'''■"''"'  '""•  I«'-^si^'il  'i  rule  for  judgment  for 
tliweiii  was,  therefore,  a  taking  against  the  will 


of  tiie  owner,  and  there  heing  no  such  taking  in 
thi.-,  ciise,  that  the  action  could  not  he  main- 
tained. 

Lane  v.  Dorsay,  1  Old.,  oTo. 


the  defendant  with  costs. 

£miis  V.  Hoss,  ti  R.  .t  C,  50' 


9.    Evidence  sufficient  to  maintain  — 

Plaintiff  transferred  his  horse  and  truck,  itc,  to 

5.  Defence  of  llen-Walver  of-Defend-  ■  ^If'  "f "' ,"  'T*"''  '^«!'^*""«"*  ^■''*''''  ^'^^ 

an..,  in  an  action  of  replevin  for  tish,  clai.ned  "o    'T  .71'        f  r"',"^'  T'  ^''^^""''"^•y 

kve  a  lien  for  storage  and  wharfage.    A  waiver  |  '^''^T  "\?  ^?  '^""'"^  ""  l"'*^  '*  "f  Property  in  the 
he  lien  was  pleaded,  and  plaintfff  swore  that,  '  f  ?''",    ^'f'  ^"''"^^^"•^•^.  ^''^"^  ''^  '"»  "^  ^'^^  *<> 


cf  the  lien  was  pleaded,  and  plaintiflF  swore  that 
when  he  first  presented  an  order  for  the  fish  to 
Ji'fenilants,  defendants  claimed  only  storage. 
It  appeared,  however,  that  when  plaintiff  first 
Hosed  of  part  of  the  Hsh,  defendants  claimed 
hoth  storage  and  wharfage,  and  refused  to 
^«liver  any  of  the  fish  until  the  claim  was  paid. 
On  the  same  day  plaintiflF  wrote  to  defendants, 


defendant  from  whom  plaintiff  sought  to  replevy 
them,  and  at  the  trial  offered  in  evidence  his 
agreement  with  McC,  which  was  rejected  by  the 
Judge  on  the  ground  that  it  was  not  properly 
signed. 

Held,  that  plaintiff  could  not  prevail  in  this 
action. 

Carr  v.  Cany  tt  a/.,  3  N.  S.  D.,  213. 


ll!)l 


IlKI'LKVIN. 


ll!f' 


10.  UoodN  4ann«)t    he    r«>|>le«le(l    fnmi 

Sheriff  —  Sw.    ;UM    of    i:i\}.    !»4,    1!.    S.    (ttli 

m'liiM),  iin;vc'iiti*  tin'  icplcvyiiiK  of  « It,  Hi'i/fil 

l.y  iiikI  in  ttii!  fUKtocly  »i  tlu'  Slu-iirt'  iiiuler 
prmTSH  Dill  iif  tlif  lour  ■  llii'iriii  iftViniI 
to,  though  Miich  ^t,,„iU  lire  tlios  of  ii  tliinl  i>aity, 
li  HtmiiKiT  lo  ilif   liiiiHc   ill  wliicii   till'  proffMH 

JHH I;  mill  wlinv  other  .Ifttinliiiils,  iictiii),'  in 

till-  Shcrill':*  iii<l  iiii'l  iiiKifr  liis  iiiilliority,  iiif 
joiiu'il,  llie  writ  \m1I  !»■  "ft  i'lnli'  i''*  <"  ""  •'"' 
ilufi'iiiliintH. 

Cnriy  v.  Hifuih/  i'  '(/..  .'«  li.  iS:  •'-.  -"•••<• 

11.  (JO(ulH  lonni'd  to  InHolveiit    Ueniaiid- 

Wlicii'   K !■<   well'   li'iii    '"    'li''   in.tolvi'iit    liy 

plaiiitiiriincl  rctiiinnl  liy  tlir  iiH«i;4iitf. 

//././.  timt   tiify   couM    )..■  ifplrvicd   witlioiii 
(U'liianil. 

l>i  iiiiiiiiii  V.  (iiirtiji  1 1 '(/.,  (i  K.  iV  '••.  -*"" ; 

lie.  I..  T..  .-.41 1, 

\i,    (JoodN  not  in  poMsrsslon  of  defendant, 

hut  of  bin  assignee  I Vfendaiit,  liaviiig  ilis- 
soKf.l  Ids  coiiiiL'ctiDii  witii  till'  linn  of  <'.  &  U  . 
Aiidfison.  orderi'il  tiiu  goo.ls  in  c|iu'.-*tioii  from 
plainlitl'.  'I'Ir!  agunt  forwardi'cl  llii'  ordt-r  in  liiu 
naini'  of  ('.  W.  Andt-i'-son  in.stead  of  \V.  ('. 
Aiidcisoii  (the  dfffndaiit'i*  iiaiiif).  ""'l  lilaintitf's 
.sent  tile  goods  addlfssi'd  to  ('.  iV  W.  Alidfl>on, 
who  rt'fiist'd  to  ri'i'fivf  tluMii.  'i'liey  afterwards 
I'aiiiL'  into  ])ossi!»«ion  of  difeiidant,  anil  at  the 
tiiiiiof  tliL  sui/nii;  wtnv  in  t  ho  store  of  defen- 
dant, where  tlie  liusiness  was  lieing  eondlieted 
liy  assignees,  under  a  liill  of  sale  eonveyiiig  all 
defeiidaiU's  iirojierty.  Wlien  the  demand  was 
made  defendant  was  merely  a  salcsnian  for  tlie 
assignees,  and   told  the  jilaintitF's  agent  tliat  he 

could   not  give  up  the  g l>.  as  they  were  not 

his. 

ffi^l'l,  that  the  plaintitf  loiild  not  siiceeed  in 
replevin,  as  llie  goods  were  not,  at  the  lime  of 
the  seizure,  in  the  possession  of  the  defendant, 
or  at  lea.st  that  there  was  not  sutticieiit  evidence 
to  tlie  contrary  to  enalde  the  Court  to  set  aside 
tlie  verdiil  found  liy  the  Judge  without  jury  for 
the  defendant. 

Weatherhe,  .).,  ilisHeiiHu;). 

Marsha//  v.  Aiidifson,  4  R.  &  <;.,  4.S1. 


|».    (joods  obtained  on  credit  by  false 

reprfesentations  —  Replevin  for  -  Where  an 
action  of  replevin  was  brought  for  goods  soM 
by  plaintiffs  to  defendant,  and  there  was  evi- 
dence to  justify  the  Judge  who  tried  the  cause 
without  a  jury  in  coming  to  the  conclusion  that 
the  defendant  had  made  false  representations  to 
the  plaintiffs  as  to  his  solvency,  knowing  them 


to  lie  fiilse,  the  Conrl  refilled  to  duliilh  tin. 
jiidgn.eiit  for  plaint  ills. 

n„H.i,rl;  ,1  nl.  v.  .V' ///,'/.  1    K.  it  <■.,  .'ISS, 

It.     (jioodN   replevied   from   pervin  not 

a  party  to  suit  —  I'lainlitl  liel.l  a  lull  ni 
sale  of  a  pair  of  oxen  ♦foni  McL.,  the  owiar, 
who  iiintinued  in  pimsession,  the  lull  of  milt 
being  duly  reiorded  and  Upheld  as  valid  liy 
the  jury.  After  making  the  bill  of  Mde,  M.  L 
was  arresteil  at  the  suit  of  defendant,  ami,  on 
swearing  out  of  jail,  assigned  the  o\eii  to  tin.' 
defendant,  who  sold  them  at  atKliuli  In  W.  ; 
w  hereupon  the  plainlill',  under  a  w  rit  of  lepltviu 
against  defendant,  took  the  oxen  out  of  the  pus- 
session  of  \N'.,  wliii  was  no  jiarty  to  the  Miit. 
I'lainlitV  having  obtained  a  verdict,  tlie  ('mut 
set  the  verdict  aside  «ith  costs,  lion-Miited  tlif 
plainlill',  giving  the  defendant  the  costs  ol  iiction, 
but  not  of  trial,  and  directed  the  replevin  l»iii.| 
to  be  put  on  tile,  subject  to  the  order  ol  ih'' 
Couil  or  a  Judge. 

/•';'f(.M/-  V.  I>iii'' ,  :i  K.  >^  t'.,  til 

15.    IrreKHlarlt)  In  replevin  writ   Notice 

on  writ  Amendment— A  writ  of  replevin  liav 
ing  been  issued  without  the  notice  iei|uiri'ci  t" 
be  indorsed  thereon  by  the  I'ractice  Ait, 

//./</,    that  it   was    irregular,    but  might  !«.■ 
amended  on  paymeiil   of  costs. 

Ciiini  ri)n  V.  Cnmi-rou,  1  N.  S.  I».,  IT'i 

1«.    Joint  detention    Property  not  talieii 

out  of  plaintiff's  possession -Chamiierty- 
Chatlels  were  .sohl  by  phiiiiliff  l<i  one  S.  Hi 
fendant,  McK.,  claiming  a  right  to  them,  tnnk 
them  from  .*>.,  who  demanded  and  received  li.iik 
the  purchase  money  from  plaintitf. 

11,1,1,  that  plainlilT  could  recover  in  if|il«;viii, 
notwithstanding  the  sale  to  S.,  and  a!tli"ii|;ii 
the  goods  were  not  in  his  possession  wheiitakdi, 
McK.  having  seized  the  goods  and  dcpwit<"l 
them  with  -M.,  who  liehl  them  on  account  "I  H  ■ 
the  other  defendant. 

Hild,  McDimahl,  V.  J.,  tlU.,  iiih,;i,  that  Iwtii 
defendants  were  liable. 

Dohxoii  v.  MiKay  d  a/.,  .■>  K.  ^t  ''■■' 

1«.   Justiflcatlon  of  taklng-ffhere  the 

ilefeiidant  in  replevin  justilies  the  takiiiiJ  «*  ' 
distress  for  rent,  the  aUeged  tenancy  niiii<t  l«^ 
.  clearly  proved  precisely  as  hiid  in  his  avowry. 
/.adds  v.  E/lioll  el  a/.,  I  UM.,  7'* 


18.   Mixture-Common  law  doctrine  as  w 

—An  action  of  replevin  was  brouglit  with  counts 
iu  trover  and  trespass  for  a  large  iiuantit.V  "' 
spruce  and  pine  logs  cut  from  lands  in  the  lowf 


1193  REPLEVIN.  IIJH 

^Iii|int  Hen  toil.   I'ljiintiff»iliiitnc<l(unl  liiiiliictiml  jinixcil  up  witli  ilinii  iiuilrr  tlii;  Iwliff  ilmi  ilicy 

|K.-c -■.Kill  iif  ilif  liiml  iiinii'i'  ail  agrfciiu'iit  iiiiicic    were  all  tlicir  own. 

Ill  is:;)  with  a  purly  to  wIkhii  the  IkIh  liuil  linn        //,/,/,    that    iIi.K'   hIioiiIcI  \>v  a  ni'W   trial,  in 

iiinvcyt'd    by    ilueil    in    iN.Vt.      The   iltfi'iiiliint  j  i>nh>r   that    ilifcmlantM   iiiiulit    havn  an    opjM.r- 

iiittiiiptfil   to  HvX  up  a  title  under  procecciinKM    tunity  of  proviiiK  what   purl  l.elonneil  to  them 

;iilii|ite(I  at  a  i>ieelinj<  of  the  inhaliiluntM  of  the    ami  what  to  the  plaiiitilf. 

TiiHiiMliipiii  lH-17.  hehl  fortlie  piirpoHeof  niakilig  I  Sl^  intrl  v,    ll'/i' «/,;■(/ n/.,  ;<  \,  S,  1).,  411. 

imiMxioii  for  the   poor,  hy  whieh  etrtaiii  com- 


«-.ioiieiN  wtire  authori/.eil  to  Nell  vaeaiit  lanilN, 


,  ,         .         1       ,  ,    ,     ,  *''<'•    ^ov"*  «<•»>"*  Inlervenlcns     Plaintiff 

liMlinllliifaH  It  waselaliiieil  the  laiicl.s  in  iiuestloii,  ,.„,.i,„.j„  i    ,„   .,    ,.,      o.     ..a     e    ii   if        << 

,  '  repleviuil    from  the  .Sheriff  of   Halifax   (  oimty 

lut  I  le  (  oiiit   jielil  that  their  proceeilinuN  were r  ■>  ■  i     '  i      ,   ■       ,       ■  , 

,    ,         .  ,  ,       ,  '  ,    ,       ,  property   of   one     hahUviii,    and    eliiiiiied     title 

iiitiiily    willioiit    legal    warrant,    and    further,  ,i„.„„,,    „,.  i  .,         ,         i   n      »       i  .       ■ 

■'  ,  '  tliereto   uiiiler   certain   Inlli  of  nale   eoiitaiiiinir 

tliiil  there  wan  no  aileqiiate  proof  that  the   andn  ,.,.,,■  ;        ,i    .         i    .i  i       ii 

,,.,,,,;         .'  ,,  JiioviMioiiM  that  made  the  (oiivevaiioeM  applicatile 

nil  SI. 1    iiiilinleil  tilt    lotN  111  (iiieHiioii,       rain-  ,      ,t,  •      i  .         '.i.i  , 

,  ,  ,  ,         .  ,      ,       ,  '"  iifli'i'-iici|Uired    property.       Ihe    l'ooiIm    wen^ 

lltf  rill  a  liirjie  llllllllier  of    loiiM  irolii  the    am  M  in  :  .,11  ..,.,!,, ...  1  1  .,  11,1  1.    •         t.       .i       i    .        r.i      I'll 

'\  nil  ordered  liy  Haldwin  aft<'r  the  date  of  the  IhIIh 


21.    Plea  that  goodH  In  public  market  not 

liable  to  distress  for  rent— DefendantM  let  to  ii 


Npiite,  and  put  them  with  others  cut  fniiii  other  I  ,c  „,.i,      „  i  .    ,i  •       i     ii  i         i        ,   •   .■.,. 

'  ,     '  ,       ,  ,    ,  .      .  "'   «"■»',  and  nothing;  had  lieeii  done  hy  iilaintifl 

liiis  III  a  iKMiin  on  the  ice,  and  defenduiit  cut  i..,  .......  ,f         ..;  \,     c  '■ 

.      ,       ,      ,  ,       ,,  ,,  ,  oy  way  (it  aKserting  a  right  of  iKWHeHHion. 

hvf  hundred   trees  on  the  disputed  lot   and   put  jt  i.i    <i.  .>  :„   .i        i  t 

,..,,'  '  /I'M,  that  in  the  absence  of  any  moium  nrhis 

I  HIM  partly   iiiMiile  and   partly    oiit><iile   of  the  ;..,  ,.  .     •  .   .   ..a-i     ,       .  .,     ■       ,  ,..,  , 

'    ,,•  ,'       .■'        ,  i«''>/'f(/i. //.I,  jdftllitift  had  not  the  Will  title,  and 

iiliiiiititfs  boom,  iiiixinL' them  III  Mucli  a  way  that  ,1, ,,    i  ii        .  »i  •         •.        i 

',  ,,        ,,...,,        ,   ,         ,   .       ,  ""^l   '"     t''iiild    not.    111    this   Hint,  rely    on    an 

ihtyroiild  not  be  diMtinguiNhed.and  then  claimed  ■■....itiil,!-,  title 

the  whole  lot  an  his  own.     I'laiiititrH  then  seized  '      0' K>/1  v.  lii/l  4  ]i,  &  {',.    4|!), 

uniliT  his  wiit  of  re]ileviii  all  the  logs  that  he 

miilil  identify  and  enough  more  to  iiiaki-  up  the 

nniiiliiT  cut  by  himself  on  the  disputed  laud. 

//'/'/,  tliat  even  if  part  of  the  logs  replevied 

liail  lieen  cut  by   .lefendant  on   hii.d   to   which  ^•'"''"'   '''^^''^"'"   ("■'■'"'•''••^'  t''^'  "I'l'^"''   I'"'ti'-"  of 

liLuiititfshadnocIaiin,  the  common  law  doctrine  ""'^'f'  "''*'  "^•■''  "''  ""  '""  '■''  '""^''  ^"'  f'""'"'"' 

nf  mixture  differing  from  that  of  the  civil  law,  '""^  "  »""'  "'  ''""  '""'■''  "'^^  l""vi.a-.l  with  stalls 

twihewluileof  them  without   account  to  hiin  ^"''  *''''  ^"^^''"'  '"  ''''*^''  '"'  •'^'^   J""'"'"^'"  '"  "" 

wli„H  property  had  been  invaded,  and  that  the  ''">'''''''-    ''''iintitf  occupied  a  Mail  in  which,  along 

v..,lict  for  i.laiiitiH-s,  which  was  taken  only  ..ii  '""'  «'""'''  '"""^''^  "'^■'■^'  "'>■  ''""«•-■''•  ''^'  ""''^'■'•'' 

the  rq.levin  count,  could  not  be  .set  asi.le,  as  the  ^"''  "'''"  '^  'l'""'t«ty  of  apples  bought  in  this  same 

IKi,,s...sion  of  plaintifTs  was  sullicieut  to  entitle  ""^'k'^^t  or  outside.     The  apples  were  seized  under 

him  to  recover  against  defendant,  a  wroiig-doer.  "  '^'^^'''''  ^'"  ''''"^  "•""'  ''•-■f'''""l'"'t«  ''>'  their  tenant, 

Lant  V.  Mv Donald,  '2  R.  &  (i.,  .S7  ;  ■ '""'  I'l'^"'"""  '-iTl'-^U'd,  claiming  that  the  goods 

IC    L   T     '140  were  privileged  from  distress,  being  in  a  ]>ublic 

market  for  sale.     'I'lie  County  Court  .)udg(?  Ar/(Z 

0(1  Hi,/»u/ 10  tl,..  Surn  m,  ConrI  o/Canmln.  ^,„^j  ^^^^  ^„„„,^  ^^.^,,^.  ^„  j,,i,.i,,,y^,,,_ 

H'ld,  that  the  possession  of  L.  rf  n/.,  plaintiff's,        //,/,/,  that  the  exempt hm  could  not  be  claimed 

"f  the  lands  in  (juestioli,  was  sufficient  t<i  entitle  on  the  ground  set  up  in  this  defence,  as  plaintiff 

ihiin  tci  recover,  in  the  iircsent  action  against  was   not   using   the  premises  as  a  market,  but 

Mcli.,  who  was  a  wiong-doer,  all  the  logs  cut  simply  as  a  shop  in  wliicli  to  ofTer,  in  the  ordi- 

™  ilie  la.  ds  in  i|uestioii.  nary  way,  goods  jmrclmsed  to  be  sold  fora  profit. 

/'■'•Strung,  .1.— When  one  jiarty  wrongfully  /I, ,il  v.  Mchowjall  <l  a/.,  •_»  I{.  &  (J.,  4(i8  ; 

intermingles  his  logs  with  those  of  another,  all  •>  C.  L.  T.    •2('y2. 

ihe  ]i,irty  whose  logs  are  iiitermingled  can  re- 

|imix.  is.  that  he  should  be  permitted  to  take     o,.    possession  Sufficient  to  malntain- 

tr..n  ,1,0   w  u.le  an  e.,mvalent  in  number  and    p,,,i„jiff  ,„,„„^,,,^  ..^j,,^,^.;,,  ^^^.^^.^^^^  .lefei.dai.t,  a 

l-miity  for  those  which  he  originally  posses.sed.    .Sheriff,  for  goods  taken  on  execution,  but  claimed 

.VcDouald  V.  La„<,  7  S.  C.  K.,  W2;    ,        ,„i„^iff  ,„„,^.^  ,^  registered  bill  of  sale  from 

-     .    -.     .,.1.  o.    jIj^,  piirty  against  wluim  the  execution  issued, 

and  who  was  suffered  to  remain  in  possession. 

W.    Mixture  of  articles -New  trial  to  And    The  principal  <iuesti(m  on  the  trial  was  the  hoiin 

which  belonged  to  plaintiff  and  which  to  de-  ^liden  of  the  bill  of  sale,  and  the  jury  having 

fendant- Where  plaintiff  re|)levied  certain  logs    found  for  the  plaintiff, 

from  ilefendants,  under  a  bill  of  sale,  and  among       Held,  notwithstanding  suspicious  circumstan- 
l^ii'se  rigiitfuUy  lieloiiging  to  him  were  a  iiuiii-    ces,  that  their  venlict  could  not  be  set  aside. 
i*rl)eloiigingto  defendants,  which  the  latter  had  ;     Alio,  that  the  plaintiff",  who  had  had  a  syin- 


no.')  RKPLKVIN.  llOtj 

liiilii'    ili'livriy,  mill    linl    ;i    iiulil    l"   imiiu'iliiti'    l.nii'      v.     Iiiii''ii/,    I    Ol.l.,    .'iT'.,    Ilmt    irpliMii 
i><>Hit('<*Nii)n,  llitil  Hiitliiji'iit  |i'i4'.i'«n|iiii  til  inaiiitiiin    umilil  lii'. 

thi'iiction,  .Sri'c.iiil,  /»'/•  Sii'  W,  N'.miiK,  ('.  .).,  .ImIhi^Iuiii', 

.]f,  y,ih  V.  Sinr,/,r,  ;i  N,  S,   |),,  :W.     |,'  j  _  n,.,,  ||,,slJ,i|f,M,  ,1.,  Ilmt  till-  li'niK'iy'if  tlie 

M-iMi'l  liciiiLj  iiiilv  I'riiiiii   t'liiii   cviilt'iirc  of  iillf, 

•-•:».    Krplevin  luiiliiHt  aMixnec  In  \\\m\.  ,  ,|,„,,  ,„.|„j.'..vi,u. ."..f  fmn,hiM,i -nii,, , 

vene.v    Snti.m    P.V.  ..(    tlu-    In.uK.Mt    A.t    ..t    ,„.,„.„,„  ^y.  S.  un.l  l».  S.  in  r..«,ml  tn  tl,f  legU. 

IHT.-..   -Icf.   I..I    pivvrnt    un    ii.tl t    irpl.-vu,    ^^,^^    ^^^    ^^^.^,^  ^,    ^^^    ^,^,f^,^^,     j,^,,    ,,,,,.,it,„,,   „f    „„, 

UK.iii.Ht   .ill    u-.Hi«n....    Ill    .u.Mlv..n,y    to   .•.•.■ovf    ,,  ;^.^^^^,^._   „^^^,    ^^^^,,^,,.   j,^,,  ,.,|„i,^j,,,.   ,„,,„,,,,  ,„„ 
,„.H«..,HloM  ot  g lH,o„v..y..l.incl,.|iililllofsHl...    j^^.^,^,^j   ,^^.  ji^^    ^,^_,^,  ^,_^,  i^^^^.^j^.^  ^^„..^.,,„,   ,,^  „^^, 

''■•"  """""'"ly  I'"" '"'«'*  '>"•'•""  l""vi'l''-t  »">■    f,.H,„l  Hhoul.l  ).f  r..Mio,v.l  to  tlu'lr  .jUHt  tvl.ti,,,,, 

are<.l.lig.it..ry..i.lyiiitluMaHt.of.luii...-U.volvinK    ^^^   ^j^^^   ^.^,^^^,,^  ^^,^^,  j,^^,  ^^    _,,,,,,,  ^^,,,,    „,^,,,^^ 

i.ii  tlif  iiMHiKiu'i-  l.y  virtue  of  tli..  Act.  ...clitoiM  Uc  n.liiiitt.'.l  to  M  iiiiiil.U'  i.iirii,'i)i;iiiu,i 

I'inn,  V.  (larnv,  ./«/..  (I  li.  &  ti..  W.     .^^  ^,_^_  ,,,„,,,,„ls. 

/•'(■  Wilkins.  .1.,  tli'.t    111  diiiw   infcii'iiii«  nf 
*24.     KrplCVllI   «r  Vl'SM'I       H'.    8.   and    B.    fniinl,  unli's*  tliry  aiv  incMi>til.l.' in  tlirii  ili:,i 
anil  I'.  S.  |iroiiirril  NU|i|ili(s  fioiii   iiarlics  in  St.    |,|,t,.|.,  for   liic   iiurposc  of  niiiiiillliii;  ii  n  lm-Iiic'I 
.lollll,  \.    15.,  mill    ll.llifllX.  \.  S.,  to   lie    Usfcl    ill    y„.;,;/r(    I'lir'n   title  ton   liiili-ill  Nliip,  is  liiMHiiLiiiy 

till' I'oimtructioiiof  II  vrisd  wliiiliiiftcr  licr  coin-  j||,ii,.i„l  roiupcifiu'y. 

plctioii  wiiH  riij^intiMcii  ill  till'  iimiu'  of   U.  S.     'I'o  yi, ,.  |),„|,1_  ,|._  that  fiaml  was  not  siitliririiiiy 

till-  parlies   in   St.  .lojin,   \V.  S.,  mul  to  tlmse  in  pioveil  to  avoiil   the  yrini" /"•ii    title  eunfiriiil 

Halifax,  15.  S.,  whose  name  alone  appeal  e.l  upon  |,y  (i,^.  it.gistry. 

the  rei,'istry,  wiiM  rfpreseiiteiliiHowiior.     Actions  U'nnif  v.  A'.-'i' c/w)//,  •_' \.  S.  ll.,'.'47. 

were  liroii>,'lit  liy  the  St.  .lohii  creditors  a>.'aiiist 

\V.  S.  for  the  ^'ooils  sii|iplieil  on  his  credit,  ami  •2.1.     l{C|)l(>Vln    niU}'   be   NIlMnlncd    ll)    tllC 

jiiil,i,'nieiitH  olitaineil  ami  executions  issued,  un-  owner  of  goods,  taken  under  a  Marraiit  in  ilif 

(ler  which  the  vessel  was  levied  upon  and  sold  nature    of  an   execution,  not    heiiig   the  puty 

as  the  property  of  W.  s.     While  the  vessel  was  against  whom  the  warrant  was  issued. 

in   the  custody  of  the  SheiitV,  ami   prior  to  the  'I'lu.    replevin    iu   such   case   may   lii'   hriiii;ilit 

sale,  li.  S.  executed   a   liill   of   sale   in    the   form  uyiiiiist  the  coiistalile   « Im  inide  the  levy  hiilii; 

reipiired    liy   the    Act    to   plaintitl',   one    of    the  jn  possession  of  the  uoods. 

Halifax    creditors,    who    immediately    had    the:  A''";/    v.  //(« /ifn;,  .laiiiis, 'Jl. 

Manic  registered  and   received  a  formal  delivery  I 

<if  the  vessel  from  I!,  s.    The  sheiitv  sold  all      >n\.    Keptovin  Will  Mot  lie  ngulnst  u  con- 

the  interest  of  \V.  S.  in  the  vessel  to  defendant  stalile  for  property  .sei/ed  liy  him  iiiidei  a  wai 

and  delivered  a  hill  of  sale  of  the  same,  which  rant  of  distrcsM  for  the  non-payiiient  of  srlmnl 

was  not  recorded.      I'laiiititV  tliereu]ion  lu'oiifiht  rates,   under   Revised   Statutes   (second  .■.eiiei), 

an  action  of  replevin,  which   came  on  for  trial,  e.  (id,  sec.  Ill,  although  .hiicIi  warrant   he  ikfcc- 

Imt,  in  conseiiuence  of  the  length  of  the  cause  tive  in  not  reciting  that  the  collector  had  niinli' 


:r' 


and  iiisiilKcient   time,   could   not   lie  concluded,    the  oath  reiniired   to  lie  made  previous  t 
At  the  suggestion  of  the  iiiesiding  .Tndge  a  rule    issue  of  such  warrant,  which  oiith.  however,  liiul 
was  entered  into  liy  which  it  was  agreed  that  a    in  fact  liceii  made. 

verdict  sliouhl  pass  for  plaintiff,  with  power  to  /',  r  Young,  ('.  J. —The  only  remedy  in  such 
the  Court  to  determine  and  draw  the  same  in-  a  case  is  liy  nrtlomvi,  or  appeal  to  the  Siwinii.". 
fercnces  from  the  evidence  that  a  jury  might  do,  j  MrUrciinr  v.  /V'i/no/(,  I  OM,  '211. 

and  either  enter  a  verdict   for  jilaintifl'iir  defeii-  \ 

dant  or  order  a  non-suit,  as  they  might  think  21.  Replevin  Will  IlOt  lie  fOf  lOJtS  f Ut  bj 
fit,  and  also  with  power  to  determine  tlie  eipii-  defendants  on  lands  jnirchased  liy  plaiiitiH  mi 
ties,  if  any,  and  to  order  a  .sale  of  the  ve.ssel  their  joint  account,  and  of  which  they  have  Irul 
anil  payment  of  the  proceeds  into  Court  to  aliide  a  joint  possession  which  has  not  been  rcgiiliniy 
the  judgment.  ''  terminated,  althougii  the  deed  of  the  liiml  wii" 

H<l<l,  first,  )iir  Sir  W.  Young,  C.  J.,  Des- '  to  jilaintiff  ahme,  and  defendants  had  not  puiil 
liarrcs  and  Dodd,  d.I.  (.lohnstone,  K.  ,T.,  doulit-  their  .share  of  ihe  purchase  money,  acconliiig  t" 
ing,  and   NVilkiiis,   J.,  ditsntlituj ),  that  li.   S.,    jiie  agreement. 

being  the  registered  owner,  was  not  precluded  Frumati  v.  Hnyr'nu.itoii  ff  nl.,  1  Old.,  H'''- 

by  the  levy  of  executions  against  \V.  .S.  from 

giving  the  bill  of  sale  to  the  plaintiff  and  trans-      28.    Substituting  ncw  defend  a  nt-Fresh 

ferring  to  the  latter  a  possession  sutlicient  to  ;  security— Where  plaintiff  had  in  the  first  m- 
support  replevin.     Also,  under  the  authority  of  I  stance  given  the  replevin  bond  in  the  form  pio- 


11!)7 


RKVENUE. 


IIDS 


vjilcil  ill  I  lu!  Stat  nil'  mill  II  iirw  (Icfi'iidniit   liml  tiiul  ii|i>iii  tlii<  iinliimiy  urniinil-,  Imt  tlif  jury 

l,<>ri  Hiilmlitutnl  in  ilic  iKJtioiiiis  ilcffii.laiit   in  having  tiiiiinl  lur  tin' plitintilF  n|i<in  all  tlii' iMNiit'N 

thr  |)liiif  >>f   lliu  nrij^iiml  (li'ft'ndaiilN  mnli'i'  un  of  fact,  tlii'( 'nnrt  rcfuni'il  tiHli>tcliaigi!  tliu  vi'iilii'i. 

intti|iltiu(lfr  nuiiiiniiiiH  taken  out  l>y  tlio  lattor,  Lroiiartl  v.  ('mi^inll,  |  N,  S,  1).,  |-J1. 
//■/'/,  /"/•  Hiti'liif, .?.,  at  Chainlii'iM,  that  tlicif 

i,  iin  poxt'i'  tniiiic't  the  piaiiititi'  to  turniNii  a      -•    Dpfi'iircH  under  I'UHtoniH  and  Inland 

ni»  lioinl  or  .itlirr  Mciiiiitv  to  tlii'  Miilmtitutt;il    Rnvenue  A(!tH    Conntniction  nth  R.  S.,  c.  104, 

,l,t, M.liuit.  O.  XIX.,  K.  2,  mid  O.  XVIII.,  R.  21,  and  O. 

V"""',  ulu'tlicr  the  lioiiil  affoiilud  m\\  ^loiir- '  X"-  ^-  ^^     Ur.nece8«iiry  prolixity    Oenernl 

Ity  111  iIk'  MiliNliiiitfil  ilcfi'iiilant.  iMiie     'I'o  an  ai'tion  l)roiij.'lit   a;;ainst  ilffi'inlant, 

Mi/)(iiia/il  \\  h'oi'iiih,  Miiyrh  .'/Ih,  IS'.m,    an  aiictioiit'fi'  in  tlir  City  of  Halifax,  to  it'covor 

Ciiri  iiorli'd,    <lainagL>H  for  tliu  itllogtiil  wrongful  Halu  of  a  liorHO, 
wagv'""  I'liil    liaiiii'NM,   Nfi/i'il   liy  otIicfiH  of  tlm 

W.   The  Queen  I'lin  brInK  replevin  under  '"'"'"'  H''vt'nni^  whii.,.  iMinK'usnifortiu'puipoM,. 

tth  I!,  S.,  cap,  1(4,  Huu.  .'WK.  of  rfiiioviiij^  a   ipiantity    of   NjiiritM    unlawfully 

l,>ii<iii   V. /'/riv  ;•.•_' U.  iVC.    4;il,     iii'ii>"'"L'tureil  and  lialili' toL'Xl•i^^l■  ilutii'N,  ilffi'iiil- 

ant    pleadiid    tut'iity-iiiiu'   Ki'oiiiid»    of    dcfi'iici' 

30.     WrItN   or  replevin       Ketuni       Writs    wliirh  wm.  .•xpamlfd  at  j;icat  Inigtli. 

(if  II  |ili\  ill  NJioiild  lie  iiiailr  let  uriialili!  iiiiiliT  tlic        'l'l'<'  "luiJKf  of  tlic  County  Court  for  I)i«tri>'l 

Alt  iif  iM.'il,  I'ap.  7,  and  not  on  a  Hpi't'ial  day.         N<>.   1   liolding  tiiat,   iiiiik'i'   tlit-   CiixtoniM   Act, 

.liihiisnii  \.  /;ti>.,  .)niini.H,  44tl.     Acts  of  iHM.'i,  o.  I'.',  x.  'J*JS,  and  the  Inland  |{t;vc- 

nuti  Alt,  Alts  of  IMM.'J,  i:  14,  H.  7'J,  tlif  dtaViidant 
was  liound  to  plead  the  general  Inmuu  and  givu 


KESTKAIMMi  OKIIKK 
V"  IXJIMTIOX. 

KEVEXIK. 


the  gL'iieral  Miilijectniatter  in  evidfiicc,  and  that 
the  di'ffiici'M  iiH  pluailud  were  unncri'HNurily  pro- 
lix, and  Were  uiinmcsttary  and  cniliarraMniiig, 
made  an  order  direetiiig  tl  r  all  the  j)lea«  lie 
dtruck  out  with  the  exception  of  the  4th,  which 
denied  the  allegations  and  issues  in  the  jilaiii- 
tin's  stateiiieiil  of  claim,  anil  w  liicli  he  held  to 
he  o(|iiivalent  to  the  general  issue. 

/hill,  that  the  order  inust  lie  set  aside  with 

1.  Action  for  penalty  fur   violation   of  eosts*. 

Revenue  Acta— I'laintitl,  as  collector  of  colonial  'I'liut  the  pleas,  thougii  expanded  at  great 
uvwiiies  fur  liie  I'ort  of  Sydney,  liroiight  an  length,  were  not  necessarily,  on  that  account, 
iiitimi  against  defendant  for  the  penalty  incurred    emliarrassing. 

iiiiik'r  Hevised  Statutes  (.'hil  series),  c.  I'J,  sec.  That  under  the  Judicature  Rules,  unnecessary 
iUiy  a  violation  of  the  revenue  laws,  and  oh  length  is  a  matter  which  can  he  eU'ectiially  dealt 
titiiit'il  a  Verdict.  with  on  taxation  of  costs,  as  provided  liy  Order 

A  nilu  tilsl,  in  arrest  of  judgment,  was  granted  ;  XIX,  Hule  '2. 
tiMlefeiidant,  on  the  following  grounds;  '      Doulitful   whether   the  auctioneer   who   sells 

First,  liecause  it  was  not  alleged  in  the  declar-  i  goods  seized  under  these  Acts  can  avail  himself 
atiimtiiat  the  action  was  hrought  at  the  instance  of  the  pidtectimi  the  Statute  gives  to  revenue 
'if  the  hoard  of  revenue  ;  second,  because  the    otticers. 

particular  oflfenee  alleged  to  have  lieen  coiiiniit-  Xot  liound  to  plead  the  general  issue  even  if 
ted,  was  not  specified  in  the  writ  and  declaration,     held  to  he  an  othcer  entitled  to  the  protection  of 

tf'lil,  that    neither   ohjectiou    could   prevail,    the  Statute. 
llie  Statute  ])rovided  that  this  action,  though        It  is  a  privilege  which  the  otficer  may  or  may 
I'lmight  for  a  penalty,  should  he  jn-osecutcd  in    not  make  use  of. 

tliesiuiie  manner  in  all  respects  as  an  action  for  That  the  learned  .Iiidge  was  wrong  in  holding 
the  itcovery  of  a  deht,  and  the  defendant  if  he  the  4th  ground  of  defence  to  he  eiiuivalent  to 
Mished  to  take  advantage  of  the  first  ground,  the  general  issue,  as  it  was  not  so  pleaded  and 
sliimlil  have  ])leaded  it  as  a  matter  of  defence,  '  did  not  comply  with  the  reiiuirements  of  Order 
while  the  second  ground  of  ohjectiou,  although  XVIII.,  Rule  21,  and  would  have  heen  a  viok- 
"iniuestionably  fatal,  if  this  were  a  crhniiuil  i  tion  of  Order  XII.,  Rule  10. 
I'rosecntion  by  information  or  indictment,  was  That  .some  of  the  pleas  struck  out  were  good, 
cf  no  avail  in  a  purely  civil  action.  as  containing  distinct  denials  of  material  facts 

"efendant   also   took   out  a    rule   under  the  |  set   out  in   plaintiff's   statement  of  claim   and 
Matute  to  set  aside  the  verdict,  and  for  a  new  :  essential  to  his  case. 


1199 


RIOT. 


1200 


Tlie  others  were  good  as  asserting  title  in  the  j  Hdd,  that  the  vessel  was  forfeited  witli  tlwt 
defendant  and  in  Her  Majesty.  Tlmt  others  portion  of  the  caigo  whicli  belonged  toCook; 
were  goo.l  as  justifying  defendant's  action  under  \  but  as  Conrod  was  innocent  his  case  was  rtioiii- 
the  provisions  of  tlie  Inland  Revenue  and  tlie  mended  to  the  (iovernnient  that  his  int.iost  in 
Customs  Acts,  all  the  defences  being  such  as  the  vessel  might,  if  poisible,  be  protected, 
.lefendant  was  clearly  entitled  to  make  use  of.  Tht  Stan-ay,  Y.  A.  1). ,  •-'(J7. 


Simhh,  tliat  tlie  Judge  of  the  County  Court 
niigiit  have  directed  the  substitution  of  a  state- 
ment in  a  summary  form  of  the  material  facts, 


6.   Forfeiture  and  penalties  for  violation 

of   Revenue    Laws— Tiie   Schooner  (llud'tatur, 


or  that  the  parties  prepare  issues  or  have  them  i  whereof  one  Davis  was  master,  was  engaged  in 
settled  by  the  .Judge. 

McDonald  v.  Clarh ,  '20  N.  S.  R., 

(SR.  &(!.),  254. 

3.    Breacli  of  Revenue  laws— Suit  for 

penalties— Jurisdiction  of  Court— Tlie  defend-  '  antiiorities  revealed  the  fact  tliat  tlie  siiiii<.'g 
ant  and  three  others  being  discovered  in  tlie  :  „f  keposeiie  oil  had  been  systematically  •lurit.l 
illegal  distilling  ot  spirits,  the  materials  and  j  ^^  \^y  means  of  false  outward  and  inward  nwiii- 
apparatus  used  by  them  were  seizeil.     Xo  claim    i^^^^_ 

having  been  put  in  for  them   they   were  con-        //,/,/,   that  the  vessel  with  her  appaiel  ami 
demned,  and  proceedings  then  taken  to  recover    fm-niture  was  forfeited  to  the  Crown,  and  tliiii 


the  trade  between  Roston,  U.  S.  A.,  and  Yiu- 
mouth,  N.  S.,  making  regular  trips  littwotn 
those  ports.  Suspicion  liaving  been  aroused  as 
to  there  being  smuggling  operations,  an  investi- 
gation   oil    llie    jiait    of    the    Custom     HmiM^ 


the  penalties  imposed  by  the  Act.  Tlie  defend 
ant  appeared  under  protest,  denying  tlie  juris- 
diction of  the  Court. 

//(W,  that  the  Court  had  full  jurisdiction  in 

the  matter. 

Qmtn  V.  Flint,  Y.  A.  1)., '280. 

S<f  PROHIBITION,  3. 

4.    Fine  and  forfeiture  for  vioiation  of, 

Revenue  Laws— Action  for  forfeiture  and  pen-  ; 
alties    against  a    merchant   doing    business  at  , 


the  master  was  liable  under  the  Uominiou  Cus- 
toms Act,  31  Vic.  cap.  6,  in  eighteen  penalties  as 
follows  :— .Six  of  .'*4(K)  each  for  making  an  uutn.u 
report  of  goods  on  board  ;  six  of  .*'2(Kt  eacli  f(.r 
being  concerned  in  the  landing  and  reiUDval  ot 
goods  liable  to  forfeiture  and  six  of  .?4(X)  euoli  for 
making  untrue  declarations. 

Tht  alaiViator,  Y.  A.  1).,  liHi. 

1,    Vioiation  of  Revenue  laws      This 

vessel,  while  proceeding  from  tlie  Island  nf  .><t. 


Halifax,  the  goods  seized  under  tlie  charge  of  j  pig,.,.^^  ^^.l,i^,h  is  a,  colony  of   France,  to  New 
duties  being  unpaid  thereon,  consisting  of  wat-  !  fo„„tiia,ul,  put  in  at  Aspy  Ray,  in  the  Islaiulnf 


1  Cape  Rreton,  tlie  said  Aspy   Bay  not 


ches  and  other  jewelry.      The  claimant  alleged 

that  he  had  not  imported  the  goods  himself  but  ^^^^^  ^^j  entry,  without  necessity  from  stress- 
purchased  them  in  Halifax,  but  failed  to  estab-  ;  ^ygather,  and  having  dutiable  goods  on  Inianl, 
lish  liis  <lefence,  the  dealings  between  him  and  g„„,e„f  which  goods,  the  evidence  went  to  slum, 
his  alleged  vendors  being  exceedingly  compiica-    j^.^^j  ,^^.g„  j,,^.,.^  hmded,  and  no  duty  at  any  time 


ted  and  suspicious.     In  addition  to  this,  certain 
statements  of  his  own  were  brought  in  evidence, 


paid  thereon. 

Hi  hi,  that  under  sec.  9  of  .'ll  Vic,  cap.  (i,  tlie 


admitting  that  he  had  not  paid  duty  on  two  of   y.^ptain    of    the   vessel   had    incurred  the  tull 
the  watches  seized.  ;  penalty  of  ^HOO  imposed  by  that  sectin 


The  Minnk,  Y.  A.  1>.,  ti'>. 


RIOT. 


Hi  Id,  that  the  goods  should  be  forfeited,  and 
that  the  claimant  should  pay  a  tine  of  .'?1()0  with 
costs  of  suit. 

Qmtn  V.  Oold  IVatchei  and  John  Baldirin, 
Claimant,  Y.  A.  D.,  179. 

5.    Forfeiture  for  violation  of  Revenue 

Laws— The  Schooner  Sean-ay,  owned  liy  Conrod        1.     Expenses  Of  militia  Called  OUt  tO  quell 

and  Cook,  and  trading  between  Cape  Rreton  and  ,  riot— Neither  the  Dominion  Acts  of  18ti8,  c.  40, 
Halifax,  fell  under  the  suspicion  of  the  customs  or  of  187.'),  c.  46,  nor  4th  R.  S.,  c.  '21,  s.  ,"14,  em- 
authorities,  who  set  a  watch  upon  her,  and  a  !  power  the  Supreme  Court  to  amerce  a  C(niiiiy 
systematic  course  of  smuggling  w.  ■;  discovered,  ]  for  charges  incurred  in  calling  out  the  active 
the  smuggled  goods  being  taken  to  Cook's  pre-  militia  under  the  Dominion  Act  of  1873,  o.  4ti, 
mises.  to  <l"»-'ll  "•  riot. 

There  was  no  evidence  implicating  Conrod  in  In  re  Amtrcemmt  of  Cape.  Breton  Co., 

o  R  t  r  410 

a'ay  of  the  transactions.  -  '^-  '^  ^■' 


1201 


RULES  OF  COURT. 


1202 


Shy  V.  .\t<:H<ffnj,  1  N.  S.  1).,  '.U\. 
S"  TRESPASS. 


KOAI). 


2.  Mllltia  called  out  In  aid  of  civil  power  of  tiim',  it  must  be  considered  as  alluvion  l.y 
-Tlie  Militia  Act,  Acts  of  1868,  c.  4(»,  aa  amend-  slow  and  impercejitiMe  degrees. 
i<l  l.y  tiic  Acts  of  187;{,  c.  4«,  and  tiie  Acts  of 
1870,  c.  .SI),  a>it)iorize»  the  calling  out  of  the 
militia  liy  thesenior  officer  present  in  any  locality, 
ill  ai<l  of  the  civil  power,  for  the  purpose  of  pre- 
venting or  Nujjpressing  riots  when  thereunto 
rtM(uircd,  in  writing,  which  writing  shall  exjiress 
(in  the  fiice  thereof  tiie  actual  occuirence  of 
ii  riipt,  (listuibance  or  emergency,  or  the  antici-  ^»  Rule  Of  llie  FOad  -In  an  aCtion  brought 
piition  thereof.  Wlien  so  called  out  the  liuiiility  '"  recover  damages  for  an  injury  done  plaint itf* 
to  pay  for  tlie  services  of  tlie  militia  is  imjiosed  ••"''««>  driven  l<y  his  servant,  tiiroiigii  the  alleged 
iipju  the  Municipality  for  wliich  such  services  iin>'kilful  and  negligent  driving  of  a  iioise  and 
are  reijuired.  sleigh  of  defendant  l>y  his  servant,  one  of  plain- 

Several  companies  of  militia  in  the  Munici-  ^^^'^  two  witnesses  testitied  that  plaintiff's 
pality  of  Cape  Breton  were  called  out  in  puisu-  **«rvant  was  driving  fast  and  defendant's  servant 
aiioo  of  a  fe(juisition,  which  read  :  "  It  liaviiii;  slowly,  anil  plaintifTs  servant,  liis  otlie'-  v.;»ne  ■ 
been  represented  to  us  that  a  disturhaiice  luw  ii<linitted  tiiat  he  was  driving  prett;-  U^\ ,  \\vaX. 
fjccurred  and  is  still  anticipated  at  Lingan,  lie-  '"^  **'i^^'  defendant,  four  or  five  lengtlis  orf,  on 
yoiid  the  power  of  the  civil  ])ower  to  sui)preHs,  ^^^^  wrong  side  of  the  road  ;  the  time  was  even- 
yrm  are  tiiereforo  iierehy  ordered,"  itc.  '"fe'  '"'"l  neitiier  party  carried    lamps  ;    tliat  lie 

H'ltl,  that  in  order  to  make  the  Municipality  <-'ould  liave  passed  on  tiie  other  side,  lint  ke))t  on 
iiatile  for  the  maintenance  and  pay  of  tlit;  as  he  was  going.  There  was  contradictory  evi- 
militia,  the  rei|uisition  must  eom])lv  strictly  '1<''"'''e  as  to  the  situation  of  the  parties  at  tlie 
with  the  Statute,  and  that  as  it  failed  to  ex-  time  of  the  accident.  A  verdict  found  for  plain- 
press  on  its  face  the  actual  occurrence  of  a  riot,  tiff  was  set  aside,  tlie  Court  holding  tliat  the 
disturbance  or  emergency,  or  the  anticipation  of  evidence  of  negligence  on  tlie  part  of  defendant 
liny,  but  only  set  out  a  representation  that  a  "'''''  ""*  sufficient,  and  that  i)laintitrs  servant 
disturbance  had  occurred  and  was  still  antici-  ,  ^*''***  guilty  of  contributory  negligence. 


piited,  which  representation  might  have  been 
found  on  investigation  to  be  unwarranted  by 
the  circumstances,  the  Municipality  was  not 
iicilde. 

Ikad  v.  The  MunicijKtlity  of  Cain.  Breton, 

7  R.  &<;.,  --'60; 
7  C.  L.  T.,  349. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Hild,  that  the  retjuisition  was  sufficient. 

The  Statute  also  provides  that  the  Munici- 
pality shall  pay  the  expenses  of  the  service  of 
tlie  militia  when  so  called  out,  and,  in  case  of 
refusal,  that  an  acticm  may  bo  brought  by  the 
nffietr  commanding  the  corps,  in  his  own  name, 
to  recover  the  amount  of  such  expenses. 

Hdd,  Strong..!.,  dUst-nthi;/,  that  where  the 
commanding  officer  died  pending  sucli  action, 
tiie  proceedings  couM  be  continued  by  his  per- 
sonal representative. 

Crtive-A'ead  v.  Count;/ of  Cape  Rriton, 

14  S.  C.  R.,  8. 


RIVERS. 


Con/on  V.  Connolly,   1  R.  &  ('.,  !).">. 

2.    Rule  of  the  road  -Defendant's  servant, 

while  driving  at  a  rapid  pace  on  the  wrong  side 
of  the  road,  came  into  collision  with  plaintiff's 
horse,  wherehy  plaintiff  was  injured.  There 
being  no  contributory  negligence  on  the  part  of 
plaintiff, 

IJild,  that  <lefendant  was  liable. 

Martin  v.  Taylor,  .3  N.  S.  1).,  94. 

.bV. ,  aho,  WAY. 

RULES  OF  COURT. 

[The  following  Rules  of  Court  comprise  all 
that  Iiave  been  enacted  since  the  proclamation 
of  the  Rev.  Stats,  (otli  series),  on  the  "i-Sid 
April,  188."),  except  (1),  Crown  Side  Rules  ; 
("2),  Rules  under  Dominion  Controverted  Elec- 
tions Act,  and  (.3),  under  Nova  Scotia  Contro- 
verted Elections  and  Corrupt  Practices  Preven- 
tion Act  {.sec  '2  R.  &  (J.,  Appendix)  ;  and  (4), 
Rules  rel.iling  to  costs.  These  have  not  been 
included,  (is  being  already  printed  in  convenient 
form.] 


Ownership  and  boundaries-Accretion-      1.    Attachment  of  debts-Foreclosure - 

Where  an  accretion  lias  not  occurred  so  rapidly  j  Rules  of  April  11th,  1890  -Rule  five  of  Order 
as  to  liave  been  perceptible  at  any  one  moment  i  XXXVII  of  the  .Supreme  Court,  1884,  is  hereby 


1203 


RULES  OF  COURT. 


1204 


repealed,   iunl    the    folluwiiiL;    rule    substituted 
tliiTefor  : 

"  .'>.  No  Judge  shall  sit  on  tlie  heiirini;  of  any 
ii])i)eal  from  his  decision  or  judgment  iu  Court  or 
at  ("hand)erH,  or  on  any  motion  for  a  new  trial 
in  a  cause  or  matter  tried  liefore  iiim  with  a  jury, 
tnilesa  at  tiiu  request  of  the  majority  of  tiie 
dudges  of  the  Court." 

Rule  nine  of  Order  XLIII  of  the  Rides  of  the 
Sui)rcme  Court,  1SS4,  is  hereby  repealed,  and 
the  following  rule  suhstituted  therefor  ; 

"9.  'I'iic  costs  of  any  apjdication  for  an  at- 
tacinnent  of  delitsand  of  any  proceedings  arising 
from  or  incidental  to  such  application,  siiall  l>e 
in  the  discretion  of  the  Court  ora.ludge,  l)Ut 
the  jiarty  obtaining  the  order  for  attachment 
siiall  not  lie  entitled  to  any  such,  costs,  if  the 
amount  attached  does  not  exceed  tiiirty  dollars." 

Form  4,  Part  III,  of  Appendix  A,  to  the 
Hides  of  the  .Supreme  Court,  1S,S4,  i.s  hereby 
rei)e!iled,  and  tlie  following  f">rm  substituted 
tiierefor  :  i 

"The  plaintiff's  claim  is  for  the  foreclosure  j 
of  ,■»  mortgage  made  by  to  and 

dated  tlie  of  lands  at  and  foi- 

tile  sale  of  said  lands  at  pulilic  auction  in  pay- 
ment of  tile  amount  due  on  the  mortgage. 

Amount   of  principal  due 8 

Interest  to  date  of  writ 

Piemiums  of  insurance  paid  (if  any). .'" 

2.    Controverted  Elections,  Dominion  Act 

—Death  of  respondent.  &c.— Rule  of  July  Ist, 
1887  — If  the  respondent  dies,  or  is  summoned 
to  Parliament  as  a  member  of  the  Senate,  or  if 
tlie  House  of  Connnons  have  resolved  that  his 
seat  is  vacant,  any  person  entitled  to  l)e  a  peti- 
tioner, under  the  Act  in  respect  of  the  election 
to  which  the  ])etition  relates,  may  give  notice  of 
the  fact  in  the  Klectoral  District,  l)y  causing 
such  notice  to  lie  published  in  at  least  one 
newspaper  publisliod  or  circulating  therein,  if 
any.  and  by  leaving  a  copy  of  such  notice  signed 
by  him,  or  on  his  behalf,  with  the  Returning 
Olticer,  and  a  like  copy  with  the  Cleik  of  the 
Court. 

[The  Rules  under  the  Dominion  Controverted 
Elections  Act  were  revised  and  published  in 
pamphlet  form  in  IHST.] 


3.  Controverted  Elections,  Local  Act- 
Service  of  petition,  &c.— 5th  R.  S.,  c.  5,  s.  6- 
Rule  of  July  15th,  1886— It  is  ordered  by  the 
Court  that  service  of  the  notice  and  copy  of  the 
petition  made  in  accordance  with  the  provisions 
of  section  6,  chapter  5,  Revised  Statutes,  5th 
series,    shall  be   deemed  a  suthcient  service  of 


the  petition  mentioned  in  section  "21  of  the  same 
cha))ter. 

[For  Rules  now  in  force  under  al)r)ve  Act,  «»> 
'2  R.  &  C,  Appenilix,  and  oth  R.  S.,  c.  ."),  s.  -JT.] 

4.  Crown  side  -Costs -Taxation -Kuie  of 

April  11th,  1890— The  costs  of  all  proceeding.^ 
on  the  Crown  side  r.f  the  Supreme  Court,  (.limi- 
nal  as  well  as  civil,  may  lie  taxed  at  Ihdif.ix 
before  the  taxing  otticer,  in  accordance  with  the 
provisi(ms  of  (h-di^r  L.XIII.  of  the  Rules  ot  the 
Supreme  Court,  KSS4,  as  amended  (Costs). 

[Tile  Crown  side  rules  were  enacted  Deieininr, 
1st,  1SS!»,  and  were  then  published.] 

5.  Defences,  Ac. -False,  frivolous,  Ac- 
Rule  of  May  5th,  1885  —  Defences  ..r  oilier 
pleadings  which  are  false,  frividoiis  or  vexalimin, 
may  be  .set  aside,  in  whole  or  in  part,  on  such 
terms  as  to  costs  or  otherwise,  as  the  Court  or 
Judge  shall  think  Ht. 

6.  Foreclosure  -  Parties  to  -  Rule  of 

May  5th,  1885— When  a  mortgagee  is  dectaseil, 
the.  proceedings   m   foreclosure   may   be  taken 
'  and  carried   on   by   his   executors  or  adniiuis- 
'  trators.       In    foreclosure    suits,    except    when 
j  otherwise  ordered,  it  shall  not  be  necessary  t" 
make  the  heirs-at-law,  or  devisees,  or  widow  of 
I  a  deceased  mortgagor,  parties,  but  the  execuKns 
'  or  administrators    may  be    proceeded    agaiii.'-t, 
and  if  there  be  no  executors  or  administrators 
within  the  jurisdiction,  except  when  olherwin- 
ordered,  the  cause  may  be  commenced  by  petition 
setting  forth  the  facts  of  the  case,  and  piayinL' 
foreclosure  and  .sale  ;  and  the  Court  may  appoint 
a  party  to  defend,  and  may  direct  sucii  pioeeeil 
ings  as  may  be  necessary  for  promoting  or  [no- 
tecthig  the  claims  and  rights  of  any  jiersoiis  wlm 
may  be  interested  in  the  mortgaged  premised,  or 
the  proceeds  thereof ;  nor  shall  it  be  necessary 
to  mako  any  ri'.stiii  qw   tniM  or  subseiiueiit  in- 
cumbrancer a  party,  but  the  Court  may  diied 
such  proceedings  as  may  be  deemed  necessary  to 
protect  their  rights. 
Set,  also,  link  o/A/>ri/.  lUh,  iSSn,  s,ii,m,  L 

1.    Issues  to  be  settled  or  agreed  upon- 

Form— Rule  of  March  28th,  1887-lst.    The 

issues  for  trial  re(iuired  to  be  decided  by  the 

Judge  under  the  provisions  of  section  D  of  chap 

ter  50,  of   the  Acts  of   the  Legislature  of  N'"" 

Scotia,  passed   on  the  llth  day  of  May,  A.  0., 

j  1886,  .shall  in  all  cases  be  agreed  upon  hy  the 

'  parties  or  settled  by  a  Judge  before  the  trial 

j  and  a  copy  of  the  issues  so  settled  or  agreed 

I  upon  shall  be  attached  to  the  copy  of  the  plead- 


1205 


RULES  OF  COURT. 


1-200 


inys,  delivered  to  the  proper  otticer,  for  tlie  use 
<if  tlie  .Fudge  at  tlie  triiil. 

•Jnd.  iSuL'li  copy  of  issues  shall  lie  written  on 
(iiif  side  of  the  pa])er,  with  a  s|)aee  left  Mank 
liciciw  r'aeli  issue  suffieienl  to  contain  the  clecision 
iif  tiie  .Judge  on  tiiat  issue. 

3ril.  Unless  the  uliove  rules  are  coni])lied 
witli  the  .Fudge  who  tries  the  cause  will  de.ide 
(111  liiose  i.saues  only  whicii  he  considers  material. 

s.     Taxing  Master      Fee  of     Kule  of 

November  1st,  1886 -'I'he  fee  for  the  Taxing 
.\lii~trr  a|)])ointed  under  the  jirovisions  of  elia]). 
.•(t;,  ot  tlie  Acts  of  l,SH.'»,  and  the  Act  in  ainend- 
1111  lit  thereof,  shall  he  one  ilollar  (!?1.(NI)  for  tax- 
in.'  ca.il  liill  of  costs,  and  certifying  the  same  if 
reijiiirfd. 

The  taxing  iiiastei'  may  reijuiie  payment  of  his 
foi'  hefore  taxation. 

I).  >Vin(lini;-iip  Act  Kiiles  of  Court,  enact- 
ed September  17th,  1888,  under  Rev.  Stats, 
of  Canada,  chapter  l'2d,  section  92,  Winding- 
up  Act— 1.  Kvery  petition  for  the  winding  up  of 
ii  ci>iii])any  under  said  chapter  may  he  intituled 
ill  the  matter  of  "  The  Winding-up  .Act  "  and  of 
the  company  to  wliicii  such  (letilion  relates, 
(lescril)ing  the  company  liy  its  most  usual  style 
or  Hi'iu. 
Eii:ili.</i  <•'<  III  rii/  Ordi  i-<.  Xori  mill  r.  ISi:.',  Huh  I. 

•J.  I'A-ery  such  jietition  shall  he  advertised  at 
least  ten  cleai'  day.s  lietore  the  licaiing,  once  at 
least  ill  two  Halifax  daily  morning  news])apers, 
iuiil  ill  cases  in  which  the  ottice  or  principal  or 
last  known  place  of  business,  as  the  case  may 
I'C,  of  such  company  is  or  was  situate  outside  of 
Halifax,  then  once  at  least  in  a  local  newspaper, 
if  any,  circulating  in  such  district. 

//-.,  Hull   .'. 

X  Kvery  notice  of  application  by  petition  for 
winding  up  the  business  of  a  company,  under 
saiil  chapter,  nuiy  be  served  at  the  othce,  if  any, 
of  the  company,  and  if  no  oHice,  then  at  the 
piinciiial  or  last  known  principal  place  of  busi- 
ness (if  the  com])an3',  if  any  such  can  be  found, 
upon  any  meuil)er,  officer  or  servant  of  the  com- 
pany there,  or  in  case  no  such  inendter.  officer  or 
seiviuit  can  be  found  there,  then  liy  being  left  at 
sucli  (itlice  or  principal  jdace  of  )>usiness,  or  by 
lieiiig  served  on  such  member  or  members  of  the 
flonipany  as  the  Court  may  direct. 

//-.,  Hnh  3. 


articlavit  rcferiing  thereto  in  the  form  or  to  the 
effect  folhjwing  : 

"  In    Tin;   Sll'KKMK   CdII'.T. 

"  In  the  matter  of,  kc. 
I,  of  ,  make  oath  and 

say  that  such  of  the  statements  in  the  ))etition 
now  produced  ami  shown  to  me,  and  mai  keel 
with  the  letter  'A,'  as  relate  to  my  own  acts 
and  deeds,  aie  true,  and  such  of  the  said  state- 
ments as  relate  to  the  acts  and  deeds  of  any 
other  person  or  ])ersons,  I  believe  to  be  true. 

"  .''iworii  to,  &e.  ." 

Such  atlidavil  shall  be  madeliy  the  petitioner, 
or  by  one  of  liic  petitioners  if  more  than  one, 
or,  in  case  the  petition  is  presented  by  a  rom- 
pany,  by  a  director,  secietary,  or  otiier  ])riii- 
cipal  otlicel'  thereof.  It  may  be  sworn  befoie 
the  said  petition  is  presented,  and  sucli  atliilavit 
shall  lie  sufficient  /irlmn  /urii  evideine  of  the 
statements  in  the  jietition.  /'/.,  A'/;/,  -i. 

.').      Kvery    coiitrilaitory    or    creditor    of    the 

coinpany   sliall   be  entitled  to  lie  furnished    by 

the  .solicitor   to   the   iJctitiouer   with  a  cnjiy  <if 

tlie  petition  within  twenty-four  hours  after  re- 

ijuiring  the  same,  on  paying  at  the  rate  of  ten 

cents  per  folio  for  such  copv. 

II,,  Hull  .;. 

<).  livery  oi'dcr  for  the  winding-up  of  a  lom- 
pany,  and  the  appointment  of  li(|uidators,  shall 
lie  advertised  in  sucii  manner  as  the  Court  shall 
direct.  III.,  Hull  -■  <;  unit  !.}. 

7.  ( Under  s.  "24. )  Tiie  form  of  security  to  be 
given  by  a  liquidator,  on  his  appointment,  shall 
lie  a  bond  to  the  <i»ueen,  to  be  made  by  two  or 
more  siilhcieiit  sureties,  or  such  other  form  as 
tiie  Court  shall  order.  Vl,  lUili   10. 

S.  (Under  s.  4'i.i  'I'he  lii|uidator  shall,  witli 
all  convenient  speed  aflei-  his  appointineiit,  make 
out  ami  leave  at  the  ottice  of  the  I'rotliouotary 
at  Halifax,  a  list  of  the  contrilmtories  of  the 
company,  ami  such  list  shall  lie  verified  by  the 
athdavit  of  the  linuidator,  or  one  of  the  li(iiiida- 
tors,  if  there  are  more  than  one,  and  such  list 
shall,  so  far  as  is  practicable,  state  the  respec- 
tive addresses  of  and  the  number  of  shares  or 
extent  of  interest  to  be  attributeil  to  each  such 
contributory,  and  distinguish  the  several  classes 
of  contrilmtories,  and  such  list  may  fnmi  time 
to  time,   by  leave  of   the  .Fudge,  be  varied   or 

added  to  by  the  official  liiiuidator. 

Ih.,  linl"  ,'.9. 


4.    Kvery  petition  for  the  winding  up  of  any  i      9.     Ujion  the  list  of  contributoriea  being  left 
eompiuiy  by  the  Court  shall  Ije  verified  by  an  j  at  the  office  of  the  Prothonotary  at  Halifa.x  the 


1207 


RULES  OF  COURT. 


120S 


li(|iii(liitr>i'H  mIiuII  oKtaiii  iin  itiiiioiiitniciit  fur  tlie  ' 
Judgi-  ti)  Mi'ttlo  the  Hiiint',  ami  mIuiU  give  notice 
in  writing  of  siidi  appoint nient  to  cveiy  person  ' 
incluiled  in  siiili  list,  ami  stating  in  wliat  fiiar- 
ai'ter  and  for  wliat  ninnluT  of  sliares  or  interest 
8Ueh   person  is  iiu'luded  in  tlie  list,  and  in  ease  j 
liny   variation  or  addition  to  such  list  nhall  at  | 
any  time  he  made  hy  the  li(|uidatoi',  a  similar 
notice  shall  he  given  to  every  j)erson  to  whom 
such   variation   or  addition   apj)lics.     All  sueli  I 
notices  shall  liegivtn  ten  clear  days  liefore  the  ' 
day  a|)poiiitcd  to  settle  such  list  or  sudi  varia- 
tion or  addition. 

///.,  Hull.  M. 

10.  (L'nders.  4!».)  The  result  (.f  the  settle- 
ment of  the  list  of  contriliutories  shall  he  stated 
in  a  certificate  hy  the  I'rothonotary,  and  certi- 
ficates may  ho  made  from  time  to  time  for  the 
purpose  of  stating  tlie  result  of  such  settlement 
down  to  any  particular  time,  or  as  t'o  any  parti- 
cular person,  or  stating  any  variation  of  tiie  list. 

Ih.,  Ilnl,  .It. 

11.  (UiKler  s.  4!l.)  Kvery  application  to  the 
Judge  to  make  any  call  on  the  contriliutories  or 
any  of  them  shall  he  made  hy  summons  stating 
the  proposed  amount  of  such  Ciall,  and  such 
summons  shall  he  served  four  clear  days  at  the 
least  hefore  tile  day  appointed  for  making  the 
call  on  every  contrihutorj'  proposed  to  lie  in- 
eluded  in  such,  call  ;  or,  if  tlie  Judge  shall  so 
direct,  notice  of  such  intended  call  may  he  given 

by  advertisement. 

//*.,  Rule  33. 

\'l.  WJieii  any  order  for  a  call  has  heeii  made, 
a  copy  thereof  shall  lie  forthwith  .served  uj)on 
each  of  the  contriliutories  included  in  such  call, 
together  witli  a  notice  from  the  li(juidator 
sjiecifyiiig  the  amount  or  halance  due  from  such 
contrihutory  in  respect  of  such  call,  hut  such 
order  need  not  he  advertised  unless,  for  any 
sp<'cial  reason,  the  .Judge  shall  so  direct. 

Ih.,  Huh.  .Li. 

l.S.  At  the  time  of  making  an  order  for  a 
call,  the  further  proceedings  relating  thereto 
shall  he  adjourned  to  a  time  suhse(|uent  to  the 
day  appointed  for  the  payment  thereof,  an<l 
afterwanls  from  time  to  time  so  long  as  may  be 
necessary  ;  and  at  the  time  appointed  by  any 
such  a<ljournnieiit,  or  upon  a  summons  to  enforce 
payment  of  the  call,  duly  served,  and  upon  proof 
of  the  service  of  the  order  and  notice  of  the 
amount  due,  and  non-payment,  an  order  may 
be  made  for  such  of  the  contributories  who 
have  made  default,  or  of  such  of  them  against 


whom  it  shall  he  thfiiight  proper  o  make  siuli 
order,  to  pay  the  sum  which  by  such  former 
order  and  notice  they  were  respectively  ic- 
<|iiired  to  pay,  or  any  less  sum  which  luiiy 
appear  to  be  due  from  them    respectively. 

//'.,  Kill.  .;.;. 

14.  Notices  of  met'tings  of  creditors  and  ii.n 
tribiitories  held  under  the  said  Act  may  be  given 
by  mailing  the  same  to  the  creditors  and  eun 
tributorie.-:  to  tiieir  last  known  aililress  within 
such  ]icriod  as  to  admit  of  their  lieiiig  delivfiecj 
at  '.east  ten  clear  days  hefore  the  meeting,  ami 
by  advertisement  in  two  Halifax  daily  luiniiiiig 
newspa])ers  at  least  ten  clear  days  before  the 
meeting. 

I.'i.      \o   contributory   or    creditor    shiill   he 

entitled  to  attend  any  jiroceedings  in  Court  ni' 

before  the  Judge,  unless  and  until  he  has  tiled 

witii    the    I'ldthonotary  an    appearance    in  the 

matter,  giving  his  name  and  address,  ami  the 

name  and  ad''res»  of  his  solicitor,  if  any,  luiil 

upon  any  change  of  his  address  or  of  liis  sojieitur 

his  new  address  and   the  name  and  address  <if 

his  new  solicitor. 

Ih.,  I!„h  i;:. 

It).  (Under  ss.  '.'(»  and  98.)  Services  ii]imi 
contributories  and  creditors  shall  be  efTccteil, 
except  when  personal  service  is  expressly  le- 
<|uired,  by  sending  the  notice,  or  a  copy  of  ihe 
summons  or  onler,  or  other  proceeding,  thiuiigh 
the  post  in  a  pre-jiaid  letter,  addressed  to  the 
solicitor  of  the  party  to  be  served,  if  aiiv,  "r 
otherwise  to  tiie  jiarty  liimself  to  his  last  kmnvn 
address  or  place  of  abode  ;  and  such  notice  er 
copy,  summons,  order  or  other  proceeding  siinl! 
be  considered  as  served  at  the  time  the  siiino 
ought  to  he  delivered  in  the  due  course  of 
delivery  by  the  post  office,  ami  iiotwithstainiiiij,' 
the  same  may  be  returned  by  the  post  otfiec. 

1  //-.,  RnhJlJ. 

17.  No  service  under  these  rules  shall  lieile- 
cree<l  invalid  by  reason  that  the  Christian  iiiiiiic, 
or  any  of  the  Christian  names  of  the  person  on 
whom  service  is  sought  to  be  made,  has  heiii 
omitted,  or  designated  by  initial  letters,  in  the 

.  list  of  ecmtributories,  or  in  the  summons,  (uder, 
notice,  or  other  document  wherein  the  name  nf 
such  contributory  or  creditor  is  contained,  pro- 
vided the  Judge  is  satisfied  that  such  service  is 
in  other  respects  sufficient. 

:  ih.,  link  (;i 

18.  (Under  s,  77.)  In  these  rules  the  expres- 
sion "  Court"  shall  include  "  Judge." 


1209 


SALE 


1210 


NABBATil- 
.SV(  SIMIAY. 

SAILOR 
S'    SHiPPINIw 


SALE. 

I.     SALK  OK  (iOODS,  |-_>(i!t. 
II.     SALK  OK  I.AN'DS,  I'J-js. 


I.     SAI.K   OK   (KMJDS. 

1.    Action  Tor  goods  sold  and  delivered 

Oft'riet  -Contract  made  by  agent-Authority 
of  agent-— Judgment  of  County  Court  Judge 
reversed — Appeal  from  a  judgineiit  i)f  the 
Cipiiuly  Court  .Judge  for  District  No,  I,  in  favor 
of  ik'fundant,  in  an  action  l)y  plaintiffs  for  the 
])riir  or  value  of  goods  ordered  Uy  defendant 
tiirmigli  an  agent  employed  |py  plaintiffs  to 
siiliiit  orders,  in  the  coiu'se  of  tlieir  Inisiness. 
IV'ffiiilant  set  up,  as  an  ott'set,  a  contra  account 
i'lV  nn  advertisement  of  plainlitfs'  liusiness  in  a 
newspaper  of  which  defendant  was  proprietor. 
riaiiititfs  had  previously  advertised  in  defen- 
iliiiit's  paper,  Init  the  time  hail  e.xpired,  and  the 
oi'iliT  for  the  goods  sued  for  was  ol)tained  liy 
tliu  agent  agreeing  to  continue  the  advertise- 
menl. 

It  apjiearing  tiiat  tiie  agreement  was  made 
without  uuthority,  tiie  appeal  was  idlowcd  witii 
co^ts  ;uid  the  judgment  lu'low  reversed. 

Olaiid  t't  a./,  v.  Ihrtram,  7  R.  i''C  (i.,  512  ; 
>SC.  L.   r.,  ()l. 

'i.   Liability  of  a^ent  to  third  persons 

for  misrepresentation  or  assumption  of  autho- 
rity -I'laintiff  lirouglit  an  action  for  tile  price  of 
gDDils  funushed  to  defendant,  who  professed,  but 
witliiiutany  valid  authority,  to  be  acting  for  the 
e.'itute  of  a  deceased  person  named  Richards. 
Plaintiff  and  <lefendant  were  e(|ually  aware  of 
tliii  death  of  Richards,  but  yet  the  account  was 
still  kept  in  the  name  of  Richards,  who  had  in 
Ills  life  time  had  dealings  of  the  same  nature 
witii  the  plaintiff. 

Hi  III,  that  if  plaintiff  could  recover  at  all 
tinder  the  evidence,  which  was  doubtful,  he  could 
niily  do  so  on  a  count  for  the  breach  of  defen- 


dant's implied  warranty  of  Ids  authority  to  act 

for  tiie  estate. 

Oiitimii   V.  Doijl' ,  I  R.  \-  <i.,  I. 

3.  Agreement  as  to  payment  for  goods  - 

A  vessel  was  l>uill  and  registered,  twenty  shares 
I  in    the   name   of    K.    X.    Crandall,   a   plaintiff, 
!  twenty  in  the  name  of  H.  V.  Cranilall,  a  ilcfen- 
<  dant,  twelve  in  the  joint  luiines  of  K.  Rigclow, 
i  Sons  it  Co.,   ))laii)tills.     The   oiitlits    \\v\i\  pur- 
chased by  K.   iJigclow,  Sons  iV:  Co..  ami  V..  V. 
I  and  H.  V.  <  'randall,  composing  the  tirm  of  ( 'ran- 
dall  liros.,  under  an  alleged  agreement  that  they 
should  be  paid  fr>r  out  of  the  first  earning  liefore 
'  any  division  was  made  among  the  owners.     The 
[shares  of  Crandall  ISros.  were  afterwards  tians- 
!  ferred  to  ,1.  K.  &  K.  Rand,  wlioclaiined  a  right  to 
divide  the  earnings  before  jiaying  for  thcMmttits. 
The  evidence  wiis  contradictory,  both  as  to  the 
original  agreement  and  as  to  the  knowledge  of 
it,  on  tlie  part  of  the  Rands,  but  tiie  Court  diew 
from  t lie  evidence  tlie  iiifereiue  tliat   tliere  was 
such  an  agreement,  and  that    tlie    Itands  were 
a«aie  of  it,  ,ind  decreed  an  accounting  as  prayed 
for. 

niijiliiir  il  III  V.  Unnil  if  nl.,  R.  K.  I).,  4!t.'). 

4.  Agreement  to  forward  goods  for  sale 

to  pay  advances— Equitable  title— Transfer  of 
—  Replevin  —  Bill  of  lading  —Judicature  Act 
—Enforcement  of  equitable  rights  under  — 
H.  it  M.  entered  into  an  agreement,  under  whicli 
M.  was  to  supi)ly  H.  witli  tin  plates,  money, 
etc.,  tocariy  on  the  Imsiness  of  packing lolisters, 
and  H.  was  to  forward  to  M.  all  tliegoods  which 
he  should  pack,  in  order  that  tlie  supplies  might 
be  paid  for  out  of  the  proceeds  of  the  sales  of 
the  goods,  .\l.  being  paid  a  c(.iiimission  for  sell- 
ing. This  agreement  was  acted  upon  f.ir  six 
years,  not  only  in  relation  to  hdisters,  litit  also 
in  relation  to  l)eef,  which  H.  was  packing  during 
tlie  latter  part  of  this  juMiod.  At  the  end  of 
bSM-J,  H.  was  indel)ted  to  M.  froiii.s7,<KM»to.'<i»,(HJ<> 
on  the  account  between  them.  In  the  month  c>f 
Decenilier  of  that  year,  H.  sliii)ped  ISO  cases  of 
beef,  of  the  value  of  i*!,!!*!*!,  on  lioaril  a  .schooner 
liound  to  IMctou,  consigned  to  tlie  freight  agent 
of  the  Intercolouiid  Railway  at  that  jdace,  but 
addressed  to  M.  lie  wrote  M.  informing  him 
of  the  shipment,  and  forwarded  to  him  a  bill  of 
lading  of  the  gooils,  on  the  margin  of  which  .M.'s 
name  was  indorsed.  M.  transferred  Mie  bill  of 
lading  to  plaintiff  as  security  for  aecomnioilation 
indorsements,  and  plaintiff"  brought  replevin 
against  the  station  master  of  the  Intercolonial 
Railway  at  Halifax,  who,  at  the  instance  of  H., 
refused  to  deliver  the  goods. 

Held,  Weatherbe,  J.,  (ii-(')»;H/(H.7,that  under  the 
agreement  and  course   of  dealing  tietweeii  the 


1211 


SALE. 


1212 


piiitifM  M.  Iiiiil  iiii  «.|iiitiilpli'  titlf  to  till'  iiiii>t\s  the  price  iij.'iii'il  iiiMiii.     .1.  \V.  tlicii  U'fi  tlic  tiiiiii 

wliii'h  was  tiiiiL-fiiiiil  liy  llic  iiiil'iiKfiiifiit  tcitlic  mid  ilid    not    siilisi.i|iifiitly  cxcivisi'  any  a.'ts  uf 

|,lnji,,iU\  (iwiiiTsliip  nvir  tlif  ciitllf.     I'laiiitill',  wlmwaMv 

•J.     'I'liat    n.,  ill  jiursuaiuf  nf  tin'  a^'iviiiifiit,  iiiimr  iiiiil  wmkud  away  trinn  lioiiic  ami  wa:^  iiii- 

iiuviii^'  taki'ii  sti'ps  t(i  iMit  till- yiHuls  ill  tiif  jios-  aiilc  to  caru   for  tlu'   rattli',  iiiaiU' an  agrciiiiciil 

session   of   M.,  till'  ftirtt  of    tlu^  sliiiiiiR'Ht  ami  with  .1.  to  do  so  for  iiiiii. 

otiiti  acts  tak.'ii  together,  giivo  M.  tiic  legal  as  S.  ininiiifiuiMl    pioctedings    in    eipiily  to  set 

well  as  the  e(Hiitalple  title,  and  placed  the  defeml-  aside   tlie  eoiiveyance  from  T.   \V.  to  his  sons, 

ant  in  the  position  of  wrong-doer.  and  having  Mieeeeded   in  doing  so  im  exeeiition 

.1/..'),  that  after  tiie  passage  of  the  .linlieature  was  issued  for  the  ecpsts  under  which  the  .  attle 

Act  the  .Indge  iM-esiding  at   the  trial  was  houiiil  sold  to  |)laintitl'  were  levieil  upon.     'I'lie  sale  to 

to  give  etl'ect  to  the  ec|uital>le   rights  of  the  par-  |.laiiitilV  to.ik  place  eighteen  nioiilhs  liefoie  the 

ties  though  the  eaii.sehad  l>eeiiat  issuepreviously.  issue  of   the  exei'iition,  and    there  was  no  evi- 

J/.7V/.  r-'/»   V.  M,-l)oml<l,  ti  It.  iS:  <'•,  -4-  ;  deuce  to  show  thai  plaintitf,  when  he  hniigiit, 

(i  (',  L.  '!".,  44.S.  had  leason  to  susiiucl  thai  .).  \V.  was  iii>i  acting 
liniiit  n'lli  in  the  matter. 


//>/<!, /,(,■  McDonald,  ('.. I.- riiat  IIriv  Wiw 
no  evidence  to  sustain  a  finding  that  tiie  side  \u 
(ilaintiti'  was  fraiidident  and  collusive. 

/'((•  Thoni)ison,  .1.— Tiial  susjiicioiis  eirciuii- 
staneus  having  lieen  fully  exiilaiiied  hy  the  evi- 
dence, there  wa.s  no  ground  to  infer  framl  and 
nothing  to  l)e  left  to  a  jury. 

/'o'Rigby,  J.— That  there  was  slight  evidence 


Oh  n/i/iKil  III  III'    Siiiinni'    Coiirl  nf  Ciniiiila, 

Hi  III,  artirining  the  judgment  lielow,  Henry, 
.1.,  (/;»</(///(;/,  that  the  goods  were  sent  to  the 
agent  at  IMctou  to  he  forwanled,  and  that  he  had 
no  other  interest  in  tlieni,  or  right  or  duty  con- 
nected with  them,  than  to  forwanl  ihem  to  their 
destination,  and  could  not  authori/e  the  agent 
at  Halifax  to  retain  them. 

11,1,1,  a/so,  that   whetlier  or  , lot  a  legal  tUle    ^^^^^^^^^^  ^^^   j,,    ^  .^.„.  „^  „,^  ^^.,,.,J^,  ,,,,; „y 

to  the  goods  passe.  t<.  M  the  pos.t.on  of  he  ^^^^  ^,,,,^^,,,,^j,„^ „f  ^,,^  ,„.,  ,,^.,„,,,  ,,,,„,,,,„..„„„ 
aLTcnt  in  retaining  the  goods  was  siinidy  that  ot  ,    ,      ,,,  , 

^^  ,    M     ,     1  1  „;f.,ll..    and  slvmld  he  reversed. 

,  w,ong.doer,  and    M.   had    such  an   e.,.utal,le         ^^^  _      ^,.^^^ 

interest  it.  such  goo.  s,  attd  nght  to  the  posses-  ^^.^^^^  ^_  ^^^^_  ^^,^^^^^  ^^^^  ^^  ^_,.  ^^  .^  eontra.li...l<.ry 
sion  thereof  as  would  prevent  the  agent  fn.n.  ^^^^  ^,  ^^^_^  ^^.^^  ^^^  ^^^^^^.  ^^^  ^^.^^^^_,,^  ^,^^.  ,,  _,,.  ,^ 
wilhhol.hng  them.  ^_  ^,    ^^    ,|,^  .^^.  _    ,^^,^^^^.  .  ,^^j^  otherwise,  where  the  .luesti.m  is  iis 

V2  S.  (".  R.,  -417.  !  t"  t'lo  smuidness  of  a  conclusion  arrivei'.  at  nii 

adinitteil  facts,  and  it  appears  clearly   that  liif 

tin. ling  is  errone.ius. 

.1      BadSeS  of  fraud  -  Sllspk'IOUH  CirClini-        The  ( '.mrt  will  review  a  jii.lgment  f.ain.le.l  .m 

j,t,aneea -Judgment  below  reversed- Power  of    an  inference  of  frau.l  m..re  freely  than  where  it 

the  Court  to  review  erroneous  findings  -T.W.    is  hase.l  on  a  contlict  of  testimony 


llmily  v.  Ill//,  ~  K.  &.i',..  :W>: 
7C\  L.  T.,4(iS. 


6.    Bargain  and  sale-  Condition -Mrs,  M. 


and  .1.  W.,  his  s(m,  reside.l  on  a  farm  which 
they  worked  jointly  an.l  upon  which  eacii  ha.l 
place.l  some  stock. 

In  March,  18H0,  T.  W.  assigned  to  J.  W.  and 

.1  .another  son,  all   his  right  and    title  to  the        „.     „„.„„ „ -     

firm  an.l  all  his  interest  in  the  cattle,  sheep,  receive.lfn.iu  plaintiffs  certain  articles  ol  tunu- 
e'tc  uiK.n  it,  inclu.ling  a  horse  which  he  had  '  ture,  under  the  f.-Uowing  written  nieinorui..hiin, 
nurdiased  from  .S.  a  year  iiievious,  in  payment  ,  signe.l  l.y  her,  "Received  from  Messrs.  F .  .V  >on 
for  which  he  had  given  his  note.  The  eonsid-  the  following  articles  of  furniture,  for  wliuli 
eration  for  the  assignment  was  the  support  and  am  to  pay  two  hundred  and  twenty  .hiUais  aiul 
maintenance  of  T.  W.  and  his  wife  during  the  twenty-five  cents  or  more,  in  monthly  payiiients 
remain.ler  of  their  natural  lives.  of  twenty  dollars  each  month  from  date      Hie 

In  June,  1880,  T.  W.  was  sued  on  the  notehy  :  said  furniture  to  remain  the  property  of      .     • 
,S.  and  judgment  recovered  against  him,  and  an    &  Son,  till  paid  for  in  full,  and  in  the  event  ot 
execution  issued  on  which  he  was  committed  to    non-payment  monthly,  the  said   W.  Iniser  . 
i-iil      He  obtahied  his  discharge  under  the  Indi-    Son  can  take  the  furniture  back." 
gent  Debtors'  Act  in  June,  1881.     After  the  as-  i      Held,  that  possession  delivered  on  coiuhlion 
signment,  the  cattle  remained  on  the  farm  in  the  I  till  payment  shoul.l  be  made  does  not  pass  t  "t 
ciistody  of  J.  W.  and  J.  until  December  '2l8t,  '  property,  and  the  part  payment  made  will   > 
1881    when  J.  W.,  having  determined  to  leave    forfeited,  if  the  agreement  be  not  fulliUed. 
the  farm,  sold  the  cattle  to  plaintiff  and  received  |  Fraser  tt  al.  v.  Walluci:,  2  R.  &  C,  3Jk 


I2i;} 


SALE. 


]'2\4- 


Oil  ii/i/iiitl  hi  /III  Si(j,,,„i>   C'ciiil  I'/  CiiiKiilii,        httiitcl   Ijy    liim   in   uny   Ijuildiiig,    wiiitlHUisi'  or 
//•III,  iittiniiinj,'  tlie  juilgiiu'iit  l.tlnw,  tliiit  the    "loitK'oiu  of  II.  I •  in  his  lutping." 


iiuMioiiiniliini  sijint'd  liy  cK'tViKlunt  const  it  uti'cl 
,1  I'iiiilinj;  fontnut  or  aii'iingtint'nt  with  K.  .& 
SiPii  not  to  ilistiiiin. 

Wullaii.  V.  /-'ills,,;  •_»  S.  C.  i;.,  .-)•_••_'. 


Thi'  (U'fi'iicliint  iiiivinj;  .-ouj^'iil  to  hold  jiluin- 
titf ".s  hidi's  iinih;r  tlif  hill  ot  sulf, 

//(/'/ t hill  llit'io  liuil  lii'fii  nci  sikIi  iui'i'|itaiKe 
of  till'  goods  liy  •!.  L.  with  the  intention  of 
taking  iiiwsi'ssion  as  owmr  as  to  jia.ss  tlif  jdi)- 

7.    Broker  selling  shares  of  his  own  to  )'*"■> 

customer —When  ii  stock  hrokci'  .leils  shiuus  on 
liis  own  account  ami  not  in  tlie  oi-diiiary  conisc 
(if  liiisincsM  to  a  cnst<init'r  with  whom  he  has 
liiiil  previous  dealings  as  a  liroker,  and  who  may, 
tlierefoif,  rely  on  his  judgment,  it  is  his  duty  to 


J/ur, 


cdtniuiniicate  the  fact  to  the  pui'chasef.  The 
.ilistiice  of  such  a  coniinunication  is  sullicient 
ground  to  set  aside  a  verdict. 

Sairyir  v.  'irtii/,  'A  N.  S.  1).,  77. 


'1/  V.   Tilt  /'i'iiiii  /Iniik  ii  III., 

7  K.  &  <i.,  lilii. 

i^ii  (I /•/mil  to  ffli  Sii/in  III'  Ciiiirl  nj  Cdiiitilil, 
//ill/,  attirining  the  judginenl  of  the  Court 
lielow,  that  the  contract  of  sale  lietweeii  .1.  L. 
and  H.  was  rescinded  l>y  tlie  action  of  .1,  |„  in 
refusing  to  take  posses.sion  of  the  goods  when 
they  arrived  at  his  place  of  husiness,  ami  hand- 
ing them  over  to  I).  L.,  with  directions  to  iudd 
them  for  the  consignor,  and  in  notify'. ig  the 
S.  Conslsnce,  action  by,  for  non-delivery  consignor  who  acquiesced  and  adopted  the  act 
—  I'laintitl's  ship])ed  goods  <in  ilufendant.s' ves.sul,  of  .1.  L.,  whereby  the  jiroperty  in  and  posses- 
to  he  delivered  at  Halifax  to  the  consignees,  sion  of  the  goods  became  revested  in  H  ;  and 
■'lie  or  they  i)ayiiig  freight."  After  the  ship-  tliere  was  consei|Uently,  no  title  to  the  goods 
mini,  and  before  action  brought,  the  consignees  in  •!.  L.,onAngiist  I'.'th,  when  the  bill  of  sale 
piiid  plaintiffs  for  the  goi>ds.  was  made  to  the  hank. 

//'/'/,   that  the   consignees  were    the   proper  i  Tin   /'ii'fon  liankildl.   \\  //arny, 

jKisoiis  to  bring  the  action  for  damages  occa- 1  14  ,S.  (.'.  R.,  (il7  ; 

7<'.  L.  T.,  I. SO. 


sidiieil  by  non-deliveiT  of  the  goods  according 
t"  tile  terms  of  the  bill  of  lading. 
Ailniiis  <l  (il.  V.  Croshy  a  nl.,  •_'  Ii.  &  (!.,  ;W1  ; 

•J(".  L.  T.,  !»4. 


10.    Defendant  pleaded  a  set*off  to  plain- 

litis  claim,  for  good.s  Mild  and  delivered,  and 
under  that  plea  gave  evidence  of  a  sale  of  goods 
to  plaintitt'by  the  defendant  and  his  co-i)artner, 
and  an  agreement  made  between  plaintitf,  de- 
fendant, and  defendant's  co-partner,  that  plain- 
till's  claim  should  be  paiil  in  goods  from  the 
liaitnership  store.  The  County  Court  Judge 
gave  judgment  for  the  defendant  on  this  evi- 
lence,  and  the  appeal  from  his  judgment  was 


'.■mill,  2  R.  &  ti.,  ,S70; 
■JC.  L  T.,  107. 


9.   Consignor  and  consignee- Rescission 

of  contract— Non-acceptance— Bill    of  sale — 

On  the   14lh  July,    ISSd.    plainlitf  forwarded   a 

lilt  of  hides  to  J.  L.,    I'ictou,  to  whom   he  had 

lieiii  ill  tlie  habit  of  making  sales  for  a  number 

I'f  yciirs.  The  hides  were  not  ordered  by  J.  L.  ,but 

were  shipped  on  the  presumption  that  he  would    ,ii„„i^^^^j.|j  ^^.jji,'  cost's^ 

a'LX'ive  them  as  on  previous  occasions,  subject  to  I  /..       ,       >, 

'  I  C;oi((7i.  ■•  V 

inspection  and  approval.     On  the    .'ith  August,  | 
sonic  days  after  the  arrival  of  the  hides  at  I'ic- 
tou Landing,  one  of  the  servants  of  J.  L.,  find-      11.  Delivery -Evidence  of—Action  brought 

iiig  them  tilt-re,  and  without  any  special  instruc-  by  assignee  in   name    of  assignor— R.    &  J. 

lions  to  that  effect,  conveyed  them  to  the  Ian-  assigned  to  ti.  &T,,  who  assigned  toplaintiff.   The 

iii'iy.     J.  L.  being  in  financial  dilKculties  at  the  assignment   included    a  debt  <lue  by  defendant 

time,  ordered  the  hides  lobe  placed  in  aware-  foi  goods  sold  and  delivered.      Plaintiff  sued  in 

house  belonging  to  1).   L.,   to  be  held  for  the  the  name  of  R.  &  J.     To  prove  delivery,  a  paper 

lienttit  of  the  consignor.     At  the  same  time  he  watt  put  in  evidence,  which  purported  to  be  a 

telegraphed  plaintiff  as  follows;    "In  trouble;  bill  of  lading  of  the  goods,  but   there  was  no 

have  stored  hides;   appoint  some  one  to  take  sufficient  evidence  of  the  signature.     An  account 

diaige  of  them."     I'laintiff  at  once  proceeded  to  was  rendered  defendant  of  the  amount  due  R. 

Picldu  and  saw  J.    L.,   who   told  him   that   he  &  J.,  together  with  a  demand   of  payment  by 

might  make  himself  easy  about  the  hides,  that  ii.  k  T.,  the  assignees.     A  copy  of  the  account 

he  had  placed  them  in  D.  L. 's  store  for  him,  and  I  and  notice,  and  a,  letter  written  by  defemlant  to 

that  he  would  get  them.  T.,  one  of  the  assignees,  in  which  he  acknow- 

On  the  I'ith  August,  1886,  J.   L.  executed  a  ledged  receipt  of  the  notice  and  made  an  offer 

wllofsaleto  the  defendant  Bank,  covering  all  to  compromise,  were  also  put  in. 
the  hides,  etc.,   "owned  by  the  said  J.   L.,  or,      H'.ld,  Thompson  and  Rigby,  JJ.,  disKenfing, 


121.-) 


SALE. 


1210 


tliiit  lliero  Wiis  iKi  HUlliiiont   I'viduiici.,  cilliiT  cif 

glHldft    Mulll   illlll     llt'liVt'll'll,    or     of    llOCOUIlt   Mtiltl'll, 

to  iiiiilde  plaiiititl' to  iccovcr. 

I'll-  'riioinpiioli,  .1.  --  Wlii'ic  iiii  lalioii  in 
linaij,'lit  liy  iui  ii.ssigiii'o  in  tlu^  imiiu'  of  tlic 
iisMigiHir,  iiiid  till"  iin.sigmiifiit  jm  ])li'ii(k'd,  u 
t'o]diciilii>ii  i.s  )j<Mid,  Ht'ttiii^'  u|i  tli.it  tho  action 
is  l)iciiigiit  liy  the  aNsij;iioi'. 

/i'(imi((/  (/  al.  V.  Cviiuinijhain,  (i  11.  ilt  (i.,  .T»7  ; 

(iC.  L.  T.,  4}K». 


12.    False  roprescnlations  to  Induce  sale 

*^  Where  goods  delivered,  vendor  must  dis 
attirm  the  transaction  before  goods  can  revest 
in  liiin— I'hiiiitiH'  lnoiiyht  lutioii  on  u  policy  of 
insuiHuee  on  eertain  j,'oodM  piiichiised  from  iiiin 
liy  one  McM.,  who  gave  ids  jnondsHoiy  notes 
iiiaile  ])ayalih^  to  plaintitf  in  payment.  'I'lie 
goods  weie  iif  tlie  invoiced  vahie  of  aliout 
1J1,1(M>  and  were  insured  for  ."<I,4(H»,  widcli  plain- 
titV  expUiined  was  to  cover  tlie  anticipated 
prolits.  I'>y  .MeM.'s  directions  tlie  goods  were 
sent  to  tiie  Conli/in  for  shipment,  and  a  liill  of 
lading  was  taken  staling  liiat  tiiey  were  shipped 
liy  plaintiH'in  the  Corihl'ni,  liouiid  to  Maigarel- 
villc,  to  l)e  delivered  to  McM.  or  his  assigns,  he 
or  they  paying  freight.  Instead  of  licing  taken 
to  Margaretville  they  were  landeil  at  Moser's 
Islaml,  and  the  vessel  taken  a  few  miles  out  and 
sunk,  all  of  which  was  at  McM.'s  instance.  In 
his  writ,  plainlift'  set  out  that  he  and  McM.,  or 
one  or  other  of  them,  was  at  the  time  of  the  loss 
interested  in  the  goods,  and  that  the  insurance 
was  made  for  the  lieiietit  of  the  person  or  per- 
sons so  interested,  and  on  the  trial  evidence 
was  given  tending  to  show  that  no  sale  or  deliv- 
ery I')  MeM.  had  actually  taken  place,  and  that 
Mi-M.'s  purchase  was  a  fraud  on  plaint  it!',  and 
that  he  was  to  have  ))rocured  a  second  name  on 
the  notes.  The  jury  found  these  facts  in  an- 
swei  to  questions  put  to  tiiem,  and  they  found 
a  verdict  for  plaintitl'.  sutiject  to  the  opinion  of 
the  Court. 

//(///,  that  iilaintiir  could  not  recover  without 
showing  that  he  was  the  owner  of  the  goods  ; 
that  the  facts  in  jnoof  showed  an  al)S(dute  sale 
and  delivery  to  McM.  ;  that  even  if  McM. 
had  obtained  the  goods  by  false  representations 
(i.  «.,  as  to  the  additional  name  to  be  juocured 
(m  the  notes),  yet  the  property  vested  in  the 
vendee  until  the  plaintiff'  had  done  some  act  to 
disaffirm  the  transaction,  and  tiiat  the  verdict 
must  be  set  aside. 

Ontmm  v.  Smifli,  2  U.  &  C,  1H7. 

18.    Fishlne  venture-Injunction -Plaln- 

tiflfs  claimed  to  be  entitled  to  fish  in  a  certain 
berth,  under  regulations  made  by  the  Sessions 


,  on  the  authority  of  au  Act  of  the  la'gisl.uiuc, 
Under  the  evidence,  the  Court  inferred  tii;it 
defendants  wtue  aiithori/ed  liy  the  piaiiilitis  Id 
shool  their  seine, 'plaintitl's  to  have  half  llic  tisli 
caught,  and  having  done  so,  thtr  defi'ihlints 
secured  a  catch  of  lish,  of  whiili  [ilaint  ill's  ciiiiiiu'd 
half  under  the  agreement. 

y/«/«/,  that   the  plaintitl's  were  entitled  to  lialt 
the  lish  caught,  and  that   the  relief  whiili  they 

I  sought,  namely,  that  defendants  shotilil  dtlivii 
to  them  their  share  of  the  proceeds,  or  arcoiiiil 

I  to  them,  and  in  the  meantime  sluuild  lie  re 
strained  from  selling,  itc,  was  jiiciperly  smiglit 
in  this  Court. 

Itoiinlij  it  al.    V.  l'oii;r  ,1  ii/.,  ]\.  ]•].  !».,  lilt 


14.    Fishing  voyage    Sale  or  Interest  In 

the  result  of — I'lainliff  levied  upon  t!ie  iiitir 
est  of  sharesmen  in  lish  secured  as  the  result  nf 
a  fishing  voyage  and  purchased  the  said  iiilere.'*! 
at  the  sale.  Defendant  having  sold  tiie  saiil 
interest  tmder  a  bill  of  .sale  whicli  was  fmind  liy 
'  the  County  Court  to  be  frauiluleut, 

Ht/d,  that  j)laintilf  could  recover  notliiiig 
fi'om  defendant  under  the  common  counts,  as 
the  nuist  he  was  entitled  to  iindei-  his  piirchusf 
was  au  accounting. 

Co/llr  V.  /{,//,  -I  K.  \-  (;.,  i;u, 

1 

;     15.    Fishing  vo)  age -Setting  aside  rerdlct 

;  —New  trial— Evidenee—I'laintitlshipped  tiiiu 

fishing  voyage  on  what  is  known  as  1  lie  "hall 

cleai'  lay,"  under  which  the  master  or  owner  lit' 

I  out  the  vessel,  the  crew  supply  a  portion  of  tln' 

provisions,  pay  the  cook,  etc.,  and  the  |iiiiccciis 

I  are    divided  in  certain   jirojiortions.     Alter  tlic 

I  voyage  had  been  partly  piosecuted,  and  bcfun;  it 

!  was  completed,  plaintilV  was  dismissed.     In  :iii 

1  action  to  lecover  the  amount  of  plaiiitill's  sliari' 

I  there  was  evidence  by  lheca)itaiu  and  liy  eiittiis 

in  defendant's! ks  of  admissions  of  an  iiiiiimit 

due  plaintiff,  though  it  was  contemleil  lliiil 
there  had  been  no  settlement,  .ludgnietu  liiiviiig 
been  given  for  the  defendant,  an  uppcil  wa.< 
allowed  and  the  cause  ordered  to  be  retried,  a.^ 
it  might  appear  that  jilaintitf  was  entitled  (o 
.something  further  than  the  amount  adiiiitled  as 
due  him. 

Co/li<   v.  /Si//,  4  H.  &  (i.,  i;U,  distiiigiiislied. 
Joiii"  v.  Lorke,  5R.  &  (!.,  m. 

16.    Fraud  -  Suspicious  circumstances - 

Defendant,  as  Sheritt'  of  the  County  of  I'icUiu, 
levied  upon  a  horse  under  a  writ  of  exeoutimi 
issued  on  a  judgment  recovered  against  d. 
Plaintiff  claimed  damages,  alleging  that  he  liaJ 
purchased  the  horse  from  C.  prior  to  the  receipt 
of  the  execution  by  defendant. 


Ill 

In  ( 


1217  SALE.  121H 

At  till'  triiil  ju.lgnu'm  was  given  f..r  (U-K^ii-  /A/,/,  that  althoiigli  tin-  fact  of  the  g<>,nU 
,l,iiit,  (.11  til.!  gi(.im,l  that  iin  l,„mijl,l,  .'.MUimt  Iwing  iiiadi-  .lolivt'iul.li!  l.y  the  hill  ..f  huliiig  to 
f(,i  tiif  iHiivhtiHiMiiiil  salu  of  thu  hoiM!  was  inadt'  thi- ohUt  of  tiio  shipptTs /.r/wia /«./.■  iiidiciit.'d 
lictwfcn  plaiiitiH"  and  (!.  I'lainlitl'  having  ap-  tliat  thuy  intfiidcd  to  rwivu  thi-  right  of  trans- 
l"''''^''''  ft-'rring  the  goods,  it  was  not  conclusive  ;  that 

//■/</,  that  as  there  was  enough  evidence  to    the  sale  was   complete   when    Hih   goods    were 
mixtain  the  judgment,  partiuidarly  if  the  learned    shipped  according  to  McK.'s  order,  and  that  the 
.iiiilge  helieved  the  defendant  aiul  his  witnesses,    phiintiH's  had  no  insural.le  interest, 
(iii.l  as  he   had  an   opportunity   of  seeing  and  I'uuhifal.  v.   Wyhh  it  al.,  '2  R.  *('.,  177. 

heiuing  the  witnesses  and  judging  of  their  crud- 
il.iiity,  the  appeal  must  he  dismis.seil. 

\Vi.atherhe,.l.,,/M.„«^/„,,,  on  the  ground  that  ™'  """''''  "»'<*  *»  '"'  delivered  In  tt 
thm.  was  no  evidence  thai  the  alleged  sal«  was  '' "^''^f'^^^^^^y  condition"  -I'laintill"  contracted 
fraudulent,  hut  n.ercly  of  suspicious  circuni-  ""'''''^•''••- t"  ••'^f'""''"'t '^  •""«'"«{  ""V'-'I'inf,  to  ho 
^,,jin.^,j,  delivered  in  a  satisfactory  working  condition, 

MrKi'iizii:  V.  Ilnrrii,  7  K.  &  (i.,  .'US;    '""'  hrought  the  nuichine   to  defendant's  field 
7  ('.  L.  T.    407,    ^■''^''''''  '"   tl'B  L'ourse  of  a  trial  which  he  pro- 
ceeded to  make,  a  wheel  hecame  liroken,  which 

l(.  Freight— Insurance  of— To  an  UCllon  I'l"'"t'"'  promised  to  replace.  Five  witnes.ses 
ill'  goods  .sold  defendant  pleaded  that  plaintitl's  «^'>''t-'  tliat  tlie  wheel  was  a  material  part  of  the 
liiiil  taken  in  payment  a  draft  drawn  by  the  ""ii^hine,  and  there  was  some  evidence  that  it 
iiuister  on  the  consignees  for  freight,  which  draft    ^*''^*'  ""'• 

liliiiiititls  liad  agreeil  to  insure.     The  plaintiffs        //'■/'/,  that  the  plaintiff  could  not  recover  the 
cliaigcd  tile  premium  to  defendant,  hut  did  not    I"'''-'»^i  'i>*  the  machine  was  never  delivered  in  a 
insure,  and  the  freight  was  lost.     The  County    '^'itisf'i'^tory  working  condition. 
Cmuii  Judge  found  on   the   evidence   that,  al-  f.airlor  v.  MHinihril,  \  R.  &  (J.,  ;},">, 

tlmugli  defendants    had    intended    plaintiHs    to 

•uie  tiie  draft,  plaintiff's  luid  never  undertaken       20.     Infant  trader  purchases  gOOds  and 
tlo  so,  and  had  not  taken  the  draft  in  full    appropriatea  them  on  account  of  his  board  — 
.-atisfiiction  of  tlie  debt.  Such  appropriation    does    not    render    them 

-Appeal  dismissed.  necessaries  —  An   infant   trader'  Ijoughi  goods 

•lames,  .1.,  ilissiitiiwi,  hchl   that   in  charging    from  plaintitf,  pari  of  wliicii  were  found  by  tiie 
tln-Mlefindants  with  tlie  premium  plaintiHs  had    Judge  to  have  lieen  given  by  him  to  liis  l)oard- 
Iwl  liiem    to  assume   that    the  freight  was  in-    iiig  iiouse  keei)er  on  account  of  liis  board. 
•*"™'  H<lil,  reversing  the  judgment  of  Johnstone, 

Covlnli  ,1,0.  V.  Sfromirh  H  al.,  4  R.  &  (i.,  109.    J.,   that  the  fact  of  the  g(.(>ds  being  so  applied 

did  not  render  tliem  neces.saries  so  as  to  enal>le 

18.    (iOOdS  deliverable  to  shipper's  order,    tlie  plaiutitr  to  recover,  and  that  the  juilgment 
not  conclusive  evidence  of  determination  of;  niust  l)e  entered  f(.r  defendant,  with  costs, 
vendor  to  reserve  right  to  transfer  —  I'lainiitJ's  j  Juikin^  v.   Way,  -J  R.  ki,.,  '.\\)\  ; 

wei'd  with  McF.,  of  .St.  (ieorge's  Ray,  X'H'd,  to  \  '    '2  V.  L.  T.,  lOS.' 

sell  him  certain  goods  wliicli  were  shipped  on 

l«Mr.l  a  ves.sel  boun.l  for  that  place,  plaintill's  21.  Interest  on  prlcC  Of  gOOdS  SOld- 
tikmgabillofla.ling  in  tlie  usual  form,  ))ut  in  From  what  time  recoverable- Interest  is  n-- 
«iiidi  tile  goods  were  made  deliverable  to  the  coveiuble  on  goods  sold  on  credit  from  the  date 
|liipiiM':..,ider,  one  of  the  copies  of  tae  lull  of  at  which  the  credit  e.vpire.l,  where  such  is  the 
"luig'-i-'ing  given  to  .McF.,  or  sent  to  hin.  by    usage  of  trade  at  the  jdace  where  the  goods  are 

l"^  vessel.     I'laintitt's  insured  the  goods  as  their    sold,  although  there  may  have  been  no  previous 

*u  property,  but  the  Court,  Wilkins  ami  Me-    dealings  between  the  parties,  no  engagement  to 

l'""iaM,  JJ., '//.w/i//»;/,  drew  from  the  evidence    pay  interest,  and  no  notice  under  the  .Statute 

'  le  infeience  that  both  the  vendors  and  the  ven-    that  interest  would  be  claimed. 

'Iw  W  recognized  McF.,  as  the  owner  of  the  lianiK  rmai,  tf  al.  v.  Fuflerfoii, 

»'""!s(luiiiig  the  transit,  and  at   the  time  of  the  i  1  t)l,i.,  -t^m 

'"«.  plaint  ills  having  taken  a  note  from  McF.'s  I 

'"'tl'er  as  collateral  security  for  payment  on  the       22.    Merchantable  Character  Of  gOOds  SOld 

*  'j'lnt,  and  the  plaintiffs'  testimony,  designed    -I'laintitt's  were  the  consignees  for  sale  of  a  cargo 

;"^l"iw  that  the  goods  ha.l  not  been  pai.l  for  or  of  oats,  consisting  of  upwards  of  O.tXMt  bushel", 
|'*getl  to  McF.,  being  considered  doubtful  an<l  i  imported  from  New  York  by  parties  residing  at 
""tisfaetory,  ^^  |  Cornwallis.     The  oats  were  stored  in  bulk  on 


1219 


SALE. 


1220 


liounl  u  vcHhfl  lyiii),'  iit  ilir  MiiiUit  W'li.ni. 
l'liiiiititr«  liml  i'ii>{a>,'i'il  iin  iiuctininii'  to  xill  ilif 
I'lir^icp  lit  iinition,  1111(1  a  Hull'  Intil  Ih'cii  mlvi  rtir-oil. 
Sulw«i|Uflllly  til  lIliHiilir  I'f  till'  lU'lrllilailtM  liilliil 

upon  pliiiiitiffn  :iiiil  iiiiulu  mimu  m-iioiiil  iiniuiriiH 
in  ii'^iiiil  to  till'  rlmniftiTof  tlif  <iMtN,  tlii-irtolm 


ill  |iiiynirllt  fill'  I'll  tilill  hIiiiiI'M  ill  a  VChhcI  .  .ijlnl 
till-  "  Uiwi'i'ii''i'  l>rla|>,"  thru  ilitrliar^iiij{  (ai'),'ii 
lit  N'fW  ^■|•l'k.  I'liyiiii'iit  lit  tlic  liill  wiiK  itki^icI, 
■  III  the  ^riiiiiiil  tliat,  lit  till*  tiiiif  iif  tilt'  iiiiii|ilt'- 
tiiiii  of  till'  iiililliiit  .iiicl  till'  ti'iiiiKt'i  r  lit  \\». 
Hliiili'M,  till'  vifHHi'l  hail  lii'fll  totally  ili'Mtinynl  liy 


ami  \vii^;ht,  ami  filially  ajjict'il  tn  laki;  tlii'in  nH'  fin-  luul  hml  l'WihuiI  to  i-xint,  ami  tlial  tlii'ii'  Hii», 
plaint  id's'  liamlH.  'riii'in  wan  im  »ali' iiy  naiiipli',  iht'ii'fiu'i',  im  cniixi'lfiatinn  fur  tlu'  hill  at  llii' 
itml  III!  Ktipulatiiui  mi  the  purl  i  if  tiit-  vi'IhIium,  tiiiii'  it  uun  ilrlivi'ii'il.  'riir  i'\  iiliiuc  sIiumkI 
wlloM!  eoiulnct  WiiH  fair  iiml  npt'ii,  that  thi' nalK  that  mi  the  iiimiiiiiK  uf  tlii'  ilay  mi  wliirli  tin. 
■     -  •  hill  waH  ili'liviTi'il  iiml  thf    traiiMfor  inaili',   tlie 

vi'SNi'l  liiok  lilt',  ami  that  htfmi'  tlii'  trmi.tir 
u'liH  iiiaile  lu'l'  iiiiiHtH  liail  falli'ii,  tlit'  iiiNiili'  li,i<l 
lu't'ii  f^ntti'il,  till'  ilt'okw  l>iii'iii.'il  mill  part  of  tlie 
diili'H.  Ill  thin  (.'iiiiilitimi  tin-  vosKfl  wan  tn\ii-.l 
lilt  into  thf  harhnr  aiul  sriittk-il.     'I'lu'  liiiil  \i,n 


ui'ii'  tit  fur  any  particular  piirpuMi 

Dtft'iiilants,  mi  thf  t'vi'iiiiig  lii'fm'f  tlu'  appniii- 
till  ilay  of  Halt',  iiitt'i'vt'iifil  iih  piiit'liaKi'rN,  ami 
jjavi'  till'  aiutimii't'i'  iiiKtriKtimH  iimU'r  whiili  lie 
iiotfil.  Afti'r  a  lai'jri'  iiuaiitity  nf  tlii'  nats  (smiif 
l,,"i(HI  hushi'ls)  hail  lift'ii  ili^piiKt'il  nf,  tlir  lialaiifL' 


reiiiaiiiiiig  in  the   vusct-'lV,   holil  wt'i'u  tliscos ernl    Hulpsi'i|iU'ntly  raixiil  ami  snhl,  tlu-  priir  nah/t'il 

1     .   !..     .     .^•JU,    1 1 I t     ,.(    ....iul,..*    :,  'I'l,.. 


til  lie  iiiiiHty. 

Til  an  lU'tion  fur  tlir    iinpaiil  halaiiee  nf   tin 


pui't'liase    nimit'y,  ileftnilaiits    pleaileil   Miilistaii-    liarge. 


Iit'iiig  !*r)(K)  leMx  than  the  inst  nf  raining  it.     Tlit 
hulk    was    HuliNi'i|iU'ntly    fiuiverteil    iiitn  ii  oniil 


Ht/il,  Rigliy,  .1.,    ilii-nitiiiii,  that    there  wan 


tiiilly  that  the  I'liiilr"'*    wax  fur  a  cargo  nf  /;«  <  ,   ...^   ^,      .. 

rhdii/iili/i    nats,  lain      n  the   linlil  nf  the   vessel  not  such  a  tntal  failure  of  emisiileratinii  ii«  ti 

anil  iiicapahle  of   iiispiition.      A  verilii't   having  form  a  ilefeiiee  tn  an  actimi  nii  the  Inill 
lieeii  fiuiml  for  ilefemlaiits, 


//«/</,  that  the  nature  of  the  transactimi  pre- 
elilileil  the  iilea  that  a  iiiercliaiitahle  eharactei 
was  an  iiiulerstninl  cnmlitinn  of  the  contract. 
Both  iiarties  hail  eiiual  op|)ortuiiities  of  inspect 


The  iiegotiatinlis  fnr  the  sale  were  cninliU'tiil 
liy  cnrresponilence.  On  .July  Otli,  ISH.'t,  plain- 
titr  wi'fite  that  he  was  prepareil  to  iiiiike  thf 
transfer  on  payment  of  a  specific  price.  On 
the  11th,  ilefemlaut  telegraphed  plaiiiliir,  •'will 


noiii  |iaiLiun  umi  ^.-tjiiin  .'|.|.-',  1  %i.iiv.^«  ".  |.^-w       n,^   ..V..,  ■, -  —   o-    I  k 

ing   the   cargo,  ami   the    vemlors  solil  ami  the    see   you  first  next  week  ;    pay  for    ten  sliiut's 

.  .  .  .  ,  1       .1  •       .        'iM.         1.    ,  1  »_i.  .  i:.l..  "      'l"l...  C...  .,•..1  .lol:,'!.,-,' ..t 


liuyers  limiglit  the  specific  visilile  thing.  Tlu 
rule  for  a  new  trial  was  therefme  niaile  aliso 
lute. 


Delap  ami  take  title."     The  tire  ami  ilelivcry  of 
the  hill  sueil  on  took  place  mi  the  littli. 

I'lr  Weiitherhe,  .J.  — That  the  contract  wis 


Fm^r't  al.  v.  Snlhnt  ii/.,  1  N,  S.  1).,4'24.    comiileteil  liy  telegram  of  the  Uth,  ami  that  the 

property  woiilil  pass,  notwitlistamling  the  pnst- 


ii.     Misrepresentations  made  verbally 

before  written  contract— riaintiiriimught  suit 
to  compel  the  performance  hy  ilefenilant  of  a 
contract  in  writing  for  the  purchiuse  of  a  house. 
During   the   negotiations  ilefemlaut   askeil   ex 


lionemeut  of  the  time  of  payment  liy  the  defin- 

ilant. 

/'(/'  Rigliy,  .J.— The  postponement  of  the  lime 

of  payment  introdiiceil   a    new  eleiiu'iit,  which 

o    -o   woiilil  reipiiie  acceptance  to  constitute  a  com- 

pressly  as  to  the  ilrainage,  which  plaintiff  assured  •  ^^^^^  contract 


Whifman  v.  Pnrb  r  ./  a/.,  (i  H.  &  C,  h"'! 

«C.  L.  T.,44S. 


25.   Purchase  of  goods  fl-om  agents- 


hini  was  perfect,  but  which  in  fact  was  seriously 
defeetivf,     It  appeared  that  the  representations  i 
hiitl  been  niaile  by  the  plaintiff  in  good  faith  and 

in  ignorance  of  the  facts,  and  the  house  being        _„.     „  -  , 

occupied  defendant  could  not  inspect  it  for  ,  rendered  in  name  of  agents-Suit  by  prin- 
himself.  Nothing  was  said  about  the  matter  in  cipals— Uefemlants  had  dealt  with  H.  .^  I  ".  H 
the  written  contract.  some  time,  not  knowing  them  to  be  agents  M 

Hdd,  that  in  the  suit  for  specific  performance  pliiintiif,  but  considering  them  as  i)iiiK'ipal>, 
the  verbal  representations  made  previous  to  the  the  bills  rendered  to  them  by  H.  &  I  o.  w"i|j 
written  contract  must  be  taken  into  considera-  ^  always  in  their  own  name.  Having  piu'chani 
tion,  and  that,  being  material  representations  a  iiuantity  of  plaintiff 's  goods  from  H.  &C'i.,ii 
on  the  faith  of  which  defendant  entered  into  the  bill  was  rendered  to  them  in  H.  &  Co.'s  i>a'"*'i 
contract,  they  constituted  a  defence,  although  but  subsequently  another  bill  was  sent  m  t  le 
plaintiff  did  not  know  them  to  be  untrue.  name  of  plaintiff.     H.  &  Co.  became  n.se^en 

'llwmmi  V.  Lonqard,  R.  K.  D.,  181.  j  after  delivery  of  the  goods,  and  defentlanl  .H' 

not  pay  them  for  them,  as  they  hail  a  contLi 

24.    Partial  destruction  ofsubject-matter:  account.     On  being  sued  by  pil'i"'"^'  ^|J^^ 

of  contract  of  sale  before  acceptance-Defen-  j  pleaded  the  contra  account,  and  pud  tlie  a 
dant  was  the  drawer  of  a  bill  of  exchange  given  i  ence  into  Court. 


1221 


SALE. 


1 2-22 


Tlif  »vi.liii,f,a  llif  iiimI  was  very  .■.iiiliiiclic-  '21),      SillC    b>     t'OnMUble    UlllIlT    (lIMrCHH 

ti.ry  aiitl  oimHicliiijj,   Imt    tlii'   jury    IuiiikI   tci  warrant -A  coiiittiilili'  wi/.i'il  a   lu.riii'  iimlfr  n 

(IctfiidalitM.  uaiiaiit  (if  ilintifMH  aiiil  ciiileavnrt'il   to  mi-11  tliu 

H<l<l,  tlial  llic  Midi,  t  i-IkhiIiI  iioI  ln^  .li^tllllK■.l,  naiiir  l.ili.ri;  tin;  litiiiii  .lay  ..f  tliu  Wiiinilil,  lait 

iiiiil  that  till- |iayiiiiiil  iiilcp  (  'mil  wan  no  a.liMJM  Wiis    |ii«'\tiitf.l    fidiii   .loiii^'  ho,   I'liit'dy   liy    the 

sum  ot  ilftviKlantst'  lial'ility  li.yoii.l  the  aiii.nint  party  troiii  whoiii  tliu  Iioih.'  wuh  takfii.     Siilmt'- 


Ml. 

lid! I'll  V. 


AiiilifHoii  if  III.,  ;i  N.  S.  1>.,  Isl.    I 


(iit'iitly  to  tlic  I'i'tuni  titty  tl.u  coiiotiililL'  hoIiI  tliu 

OISI'. 

lltlil,   tliat  tl;t!halu  waMVailtl. 

U'hin'iin   V,  /'ninrli,  ri//.  ,  •_»  N.  S.  I).,  '.NS. 


MK    Kald  b)  iiia»U>r  of  ship     Hhcii  ul- 


20.    Kt'prrscniutloii  m  lo  onncrKlilii  of 

gotxU    TrnnHt'er  of  title  by  delivery  -  Entop- 

\m\     Tradiny   voyages      i'lainiiti'  wan    in  tlic 

haliit  tif  f<ii|i|ilyiii^  II.  with  ninnt'y  aiitl  ^tioilx  fia-  lowed 

liii.linis'    iiui|MinfM    till    the    I'oiulition     that    all  On  (i/i/mi/  to  tin   I'rinj  Ciiitinil, 

pititls  prooure.l  l.y  H.  l.y  way  .if   piinliuse  or  //,/,/_  thai  the  inantfr  of  a  vuhNi'l  haw  no  power 

vxriiaiiK.-  were  t.i  lie  tlelivere.l  In  plainlitl'  who  t,.  Nell  her  m.  aH  to  allect  ih.;  InHnreix,  except  un- 

«a:t  t.)  Hell  then,  to  pay  hin  a.lvaiueH.     ( ;,  having  .j^,,.  i.j,vuinHtaneeH  of  HtriiiKent  neceHnity  :  Hlieii 

..litaine.l  ju.Ignient  agaii.Hl  H.  was  alMiut  to  levy  ...jmunHtanfeH  an,  after  Hutlieient  examination  .if 

""  ''  '"■I" >■  •"•I"i'Ki"K  '"  H.  in  which  plaintill'  |„.,.  ,,,„„li,i,„|,  ,if,,,,.  ,,v,.ry  ex.rti.m  in  hin  power, 

im.lan  inlerent  an.l   whi.li   he  was  almut  t.i  Hell  within  the  nieaiiH  at    his  .linp.isal,  t.i  extricate 

wli.ii  he  was  in.lu.'e.l  t.ial.Htain  fr-mi  .loing  so  i„.r  fr.mi   peril  or  to  raise  fuii.ls  f..r  the  lepair, 

hy  iiiainlitr  who  iiif.irine.l  him  that  the  «clio.inei  j^.^ve  iiim  n.. alternative  liut  to  sell  her  as  sh,.  is. 

Kaslcrn  Clipper  was  then  in  t  ;uy8li.ir.),   that  the  tW../y»/./  Mu/nn.  Iiisiimnr,  Co.  v.  Haiti itii.r, 


g.Miii^  .m  lioar.l  were  liiose  .if  ll.  anil  that  lie 
tinilil  levy  upon  them  there  or  wait  until  the 
Vfssel  came  to  Halifax.  (!.  failed  to  levy  on 
till'  g.iii.lM  then  on  lioar.l  the  Kastern  Clipper,  luit 
cuusiil  a  levy  on  a  cargo  which  arrive.l  at  Halifax 
fdiii'  niontliM  afterwar.ls  an.l  wliicii  ha.l  lieeii 
(iniciire.l  in  the  same  way. 

On  the  evening  previous  to  the  levy  H.  ha.l 
gime  to  plaintill's  otiice  an.l  there  ma.lu  an.l  .le- 
liveic.l  toplaintirt's  lio.ik-keepera  memorandum 


L  R.,  (I  1'.  (J.,  :<l!); 
.TJ  L.  T.,  .■)!(). 

31.    Sale  of  buNlncsH    .i|i;recnicnt    Prior 

verbal  agreement  for  sale  of  "good  will" 
inadmissible  —  Where  a  'larty  enters  int.)  a 
written  agreement,  under  .seal,  for  the  sale  f.ir  a 
certain  amount  of  all  his  right,  title,  siiare  and 
interest  in  a  certain  business,  evidence  is  inad- 


.,    ,          t     1  'll    t  1    !•         t.i  1  1    niissilile  lo  prove  a  iiri.ir  verbal  agreement  for 

III  the  form  of  a  l>ill  of  lading  of  the  guuds,  and     ,         ,      r    !  ,      ■,,  ,,    ,    .      , 

L. ,  .      ,    ,     , ,;  ., .11.,       the  sale  of  the  "goo.l  will     of  the  business  for 


ha.l  received    instructi.)ns   where    to   land  tiie 


,       „  »  .    .1       I        •    1-    .    1       1  a  sum  in  ad.lition  to  the  amount  su  spueified  in 

L'oo.ls.     He  went  to  the  place  indicateil  and  was     ,  '^ 

.  11111  ,  ihe  written  agreement. 


IJuilhy  V.  Laciy,  II  L.  T.,  N.  S., 'iT.S,  dis- 
tinguislie.1.  In  that  case  the  prior  collateral 
agreement  was  not  interfered  with  by  tiie  sub- 
setjuent  written  agreement.  It  was  a  parol 
condition  on  which  the  written  agreement  .le- 
pended. 

Austin  V.  /JooHe,  2  Old.,  149. 


[iiTparing  to  land  the  go.ids   when  they  were 
levit.l  ii))on  by  the  Sheriff. 

Hdd,  that  what  occurred  in  plaintiff's  ottice 
wiis  a  delivery  of  the  cargo  l.i  plaintiff,  and  tiiat 
the  latter  was  not  estopped  by  iiis  representa- 
tion to  (J.  from  taking  the  transfer  of  the  goods. 
.McDonald,  C.  J.,  an.l  McDonald  J.  lUsxi  iitinij. 
Forsyth  v.  Bill,  <>  R.  &  (;.,  ;{74 ; 
(jC.  L.  T.,  489. 

32.    Sale  offish  in  storage -Bight  to  hold 

21.    Sale   by  agent—  goods  by  bailee  for  unpaid  purchase  money — 

Delivery  of  part  —  1).  S.  stored  a  lot  of  Hsh 
See  PRINCIPAL  AND  AGENT,    ^ith   defemlants,  which  he  afterwar.ls  sold  to 

R.,  giving  him  a  memorandum  headed  "  R. 
'28.  Sale  by  bailee  without  authority—  bought  of  l).  S."  signed  by  the  latter.  R.  paid 
Irover  is  niaintainalile  by  the  owner  of  property  half  in  cash,  and  gave  I).  .S.  a  note  for  the  bal- 
•igiiiiisi  the  purchaser,  where  a  thinl  jMirty  to  ance,  which  was  indorsed  by  tlefendants,  and 
wliom  the  owner  has  given  the  use  of  the  property  retired  by  them  at  maturity.  R. ,  after  the  sale, 
has  sold  it  without  authority.  The  rule  is  that  became  insolvent,  and  plaintiff,  his  assignee, 
where  there  has  been  a  misuser  of  the  thing  '  produced  at  the  first  meeting  of  creditors  a 
Itnt,  there  is  an  end  of  the  bailment  and  trover  \  statement  of  assets,  the  first  item  of  which  was 
18  maintainable.  j  "236  bbls.  mackerel  stored  at  Black  Brothers," 

Sihlty  V.  SihUy,  2  N.  S.  D.,  325.  i  defendants.     One  of  the  defendants   attended 


122n 


SALE. 


1221 


tl...  in.M.lii.K  im.l  «.iw  111.'  Mtat.'iu.nt,  .I'luiiikinK  .Irni.-l  lmvm«  i.-fiiMMl  to  .luliviT  tliu  l-K- will, 

I..  tlioH..  i.r.-«M.t  timt  !.••  w.iH  i...t  iiwai«  ..f  any  -mt  ..-urity  ;  but  thu  I'vi.l.'iu'.^  an  t..  tl.v  .Iwiml 

lUh   of   |l.'MHl..r.'cl   with    lliuMi.  l.iil   li.'  «avi-  ii.>  wan  i.'Kar.l.Ml  m  uiiHaliNfa.tnry.     Tlirr..  win  ii,. 

Hi.d.    ii.timali..M    to   tlir   ,.H«iui..'..  or  iiih| tor.  .,v1.1.m..v  that  .I.-frii.laiil   ha.l  .'mt  rauH..,l  a  Mir 

liii.l,  loii^  aftur,  tlie  .l..ffii.hint»  ina.lu  a  oUiin  on  v«y  of  tli.-  lo«s  or  that   any    Hurv.-y  iiia.lr  hy 

t\w  .'Htatr  for  th«  amount  of  th."  notf,  ntating  phiintiH' ha.Ux-.Mi  .•ouununifatnl  to  Inui. 

tliat  thoy  hfhl  no  ntvurity,  aiM  a  .livi.lfU-l  wan  On  Huh.,  nv.niudn  thu  appeal  from  th.'  ju.J^ 

paiil   Ihfui.       Thf  aH.Hiyni'u  luiviug  l.rou«ht  an  mrnt  of  th.>  County  Court  in  favor  of  pliuiiul' 

action  of  trover  for  thu  li«l>,  rm;oviMf.l  a  vunlict.  wan  HUxtaiiifd. 

//./-/,  that  thi'  .Iffi'ii.hintH  had  no  right  to  n- 
lain  tlu!  t'lHli,  no  I'laini  of  lifii  hi  viliK  hftui  m-t 
up,  ami  thai  l>y  liohliiiK  tli«  notu  iiiul  tlaiming 
for  tho  amount  on  tliu  insolvent  Mtato,  th«y 


iJftinuH,  .1.,  ilisitntinij. 

Fullmov  V.  Yoniiij,  I   It.  it  ( i . ,  .'mII. 


,„r  u». 84.    sale  of  goods     No  nureement  or 

wouM  have  loHi  all  riuht  to  ivlain  posHCHMion  of   delivery     IMiiintiH'  l.rought    an  a.;tiou  ag.uii.t 

■       I  If  I  .         .  iti.t       <>1li..rii<l       1..     Lit 


thf  Hih,  if  they  had  uver  hail  any  nuoh  right 
Harl,  Ai^i'iii"'<  v.  Troo/i  tt  nl.,  '.'  K.  .V  C,  ,V>1  ; 

•_>(•.  L.  T.,»:). 

On  nppiat  lo  Hn  Supn  mi-  Coiirl  of  Cniituin, 
Held,  Strong,  .1.,  iii-»<ntHwj,  tiuit  tlie  appel- 
lants Imviiig  failed  to  prove  the  right  of  jnoperty 
in  theiiiselveH,  upon  which  they  relied  at  the  trial, 
the  leHpondent  had,  us  against  the  appellants, 
a  right  to  the  immediate  possession  of  the  tish. 

•J.  That  S.  had  not  stored  the  tish  with  ap- 
pellants hy  way  of  Heeiirity  for  a  deht  due  hy 
him,  and  as  the  appellants  had  knowledge  that 
the  tish  sued  for  were  inuluded  hy  the  insolvent 
ill  the  statement  of  his  assets,  to  which  state- 
ment they  made  no  ohjection,  hut  proved  against 
the  estate  for  the  whole  amount  of  insolvent's 
lutte,  and  received  a  dividend  thereon,  they 
could  not  now  claim  the  lish  or  set  uji  a  claim 
for  lien  thereon. 

Trooi>  v.  Hart,  7  S.  C.  K.,  :A'1; 
•JC.  L.  T.,  •_».->  1. 


a3.    Sale  of  goods  -Ilcllvery- Plaintiff 

agree.l  to  haul  logs  for  the  defendant  and  deli- 
ver them  on  the  hank  or  l.row  of  a  river  and  j 
have  the  same  surveyeil,  iiayment  to  he  made  hy 
the  middle  of  May  then  following.  He  and  his 
son  swore  that  the  logs  had  heen  delivered  at  the 
proper  place  an.l  put  in  the  position  most  fav- 


.lefeiiilants  to  recover  an  amoiuit  alleged  tn  In' 
df!  him  for  sleepers  sohl  and  ilelivercd  hy  liiiii 
to  them.  A  verdict  was  found  in  his  favor,  Imt 
there  wan  no  evidence  of  any  agreement  on  tlu' 
part  of  plaiiititl'to  sell  to  defenilants,  or  of  tla' 
latter  to  purchase,  or  of  any  delivery  of  gooils 
to  defenilaiils  hy  plaintiff  for  and  on  his  owii 
account.  'I'lie  venlict  was  accordingly  set  aside. 
Mi'l'hi,    V.   I'l'lorla  Coal  Minimj  Co., 

;»N.  S.  1),.  (14. 


3.-».   Sale  or  hiring  with  right  to  purchase 

-Not  a  bill  of  sale  Does  not  require  to  be 
tiled— Usury  — C.  I',  olttaiiied  a  piano  fnnii  1'. 
&  ,S,  on  hire,  with  the  privilege  of  iiuichasiiig  it 
for  ;*:<.■)(),  by  liaying  certain  instalments  williiii  ii 
certain  time.  Among  other  conditions  of  u 
written  ii;,'reeliient  entered  into  liy  C.  I',  ut  the 
time  of  receiving  the  piano  were,  that  it  .sIkhiM 
remain  the  pro|)erty  of  1'.  &  S.  until  fully  |micl 
for,  that  in  default  of  any  instalment  they  might 
resume  possession  without  previous  dciiiiiihl, 
and  that  C.  I',  should  pay  interest  upon  the 
purchase  money  at  7  per  cent.  C.  1'.  paid  wily 
two  instalments  amounting  to  .*«1,')<),  and  tlieii 
lecame  insolvent.  On  1'.  &  S.  claiming  the 
liiano,  they  were  opposed  by  H.  L.,  a  ciiMlitor 
of  C.  1'.,  who  claimed  under  an  assignment  niinle 
to  him  l>y  C.  P.  as  security  for  his  debt,  .iinl 
received  by  him  without  any  knowledge  nf  thi' 


propel    [.nil.;.;   <i.i'»  !'»»•  »••  .-..-   i -  receiveo  o^    iiii.i    .in.n"tii.   .*»v      --c- 

orable  to  the  defendant.    The  defence  then  called    ^g,.t,enient  with  1*.  .t  S.     This  as.signiiient  v; 

fy  -1  _      _ -   i ^..,.  ♦ln.f    il***    \f\{t\i  xct^vi*   ti*»t       ,    •       .^1     1  1    •    » 1         Tlw.    Iii.l.rii    ill    Fn.mi 


duly  Hied  and  registered.     The  Judge  in  IushI- 
veney   decided   against    the   claim   of  1*.  4  •'<■ 


five  witnesses  to  prove  that  the  logs  were  not 

placed  in  the  proper  position.     Defendant,  al-     ^ 

though  contending  that  he  was  not  bouml  to  i  ^^^^^  jj^j.  gi.„m„i8  that  the  agreement  v,  itli  them 
accept  the  logs,  was  at)out  disposing  of  them  to  ^^.^^^  ^.^jj  f^„,  „s„,.y^  interest  at  7  per  cent,  being 
one  Thompson,  aiul  called  upon  plaintiff  with  a  j„.ovided  for  ;  that  having  left  the  piano  in  C. 
view  to  carrying   out  that   arrangement;    '>ut ;  p. '«  possession  after  the  time  for  his  paying  fw 

1       .1-      rl'l »„„     .....1     .lufn.irlllllt     BWOrfi    that     tllB       ..    ,         .    ; 1      ^U„..  ......1.1  i...»    oi.f    ,111   flll'll'  clililll 

tiieir 
1  agreement  snouiu  nave  ueeii  mcou...-.  .ogisterei . 

On  mmeal  to  the.  Supreme  Court  of  Xora  Si:oUa, 
peatert  hisevKlenceasioine  pioiicL  ..c..,^.,  ...  i'  ii„„t„nnlv 

the  first  instance,  which  the  Court  held  to  be  !  HeM,  that  the  Usury  btati.te  d.d  no  a  ) 
improperly  received.  Previous  to  the  defendant  at  all,  as  it  was  not  the  case  of  a  oan  bn  c  ^ 
being    called    he    had,   on    cross  -  examination,  1  ditional  sale  ;  that  the  claim  of  I  .*:  ^  «asn 


both  Thompson  and  defendant  swore  that  the  ,  ^  j^^^^^  expired,  they  could  not  set  up  their 
plaintiff  refused  to  deliver  them  without  security.  I  j^gj^jug^  ^  f,ona  fde  purchaser,  and  that 
The  plaintiff,  although  recalled,  did  not  give  any  |  agreement  should  have  been  tiled  and  regis 


evidence  to  contradict  this  statement,  but  re- 
peated his  evidence  as  to  the  proper  delivery  in 


\'2'2^ 


SALE. 


122({ 


Iir.jiKliif.l  liy  iluii  iKit  hiiviiiK  tiiktii  hmk  tlir    lion,  the  ii.ptu  htivin«  Lffii  iinlorMd  t.,  liim  uficr 

piiiM"  ax  hodii  iiH  ilif  tjiiu.  wiiH  ii|i;  timi  ('.  |','m    tnatiirity. 

ivi^iiriiii'iit  will)  tlit'iii,  nut  liciri^  in  (lit!  niitiitc 

iif  II  liill  of  Miklt',  iU<l  not  i'('i|uii't!  tolK!  rt'iJiiHtcrcil, 

mill  llmt  V.  h  S.   hIiiiuM  Iiiui-  the  |iiiiiiii  on  pny 

iiiK'  I"  II.   L.  tliu  liiiioiini  tlii'y  liail  rcuuiviHl  on 

Jin  iiri'ounf  friiin  ('.  V. 


MiliilO'ih   V,  M<  1,10,1  ,1  ii/.,  (i  U,  fi  (!,,  I'js  ; 

«C.  L.  T.,4m 

.17.  StoppaKe  in  tranNitu    PlalntlflTii,  mer. 

cliimtM,  doing  liuMincHH  in  lUwton,  U.  >S.,  MliipiKil 


W'lun  olitiiiiiing  tlic  nilf /(iii  from  tl:i}  .IikIku   'v  i|imntity  of  oil   to  A.  &  Co.,   iiifnliantN   in 
ill  liiMiilxfiiiy,    I'.    .V:    S.    iliil    nut    iirdiliiit!  tin-    Halifax,  \.  .S.      Ik-twccn  tliu  Mhipniont  of  tliu 


niKi'ii'l  i'K'«'<'"i''i>t  <'f ''•  I',  with  tliL'Tii, 


oil  anil  itH  ai  rival  at  the  latter  port,  A.  .V  Co, 


//i/'/,  th.U  they  \vi'r«  not  tlififliy  preiluiUil  l«'ciinic  iiinolvent,  Init  pinvioiiH  to  their  asNign- 

(iMiii  ptoiluiiiig  it  at  tin- argiinient  of  iho  ruli',  ""-'"t. '"i"  <li«  pui'lMtHt!  of  prottiuting  tlie  Hhippcrn, 

iir  aii'oiinting  for  itH  non-proiliiution.  ami  without  any  intention  of  accepting  or  tak- 

lu  ihi  Mnitn-  rif  I'yh,  ."J  N.  K.  D.,  ;«'«'.  '"M  'l«'Iivery  of  the  oil,  or  exeiriMing  any  control 

j  over  it  on  their  own  account,  liy  a  cuHtoniliouHO 
order  made  liefore  tlii!  goodH  were  diMcharged, 

3(1.   Statute  Of  Frauds   Fraud  and  mlii'  traiiMfern.i  the  oil,  together  with  iiie  i.iii  ..f 

repreHentfttion     l»efeiiilant«  piiivliawd  a  <iuan  lading,  to  {',.  ft  Co.,  to  l.e  lield  for  and  on  ac- 

lity  Iif  growing  treet.,    and   gave   in    payment  count   of  tiie   HJiipperH.     The  oil    having   l.een 

ihiief.ir   their    proininHory    note,    which    after  claimed   hy  the  creditorH  of  A.  &  Co.  under  the 

|)iiK>iiig  tjirough  tile  liaiidM  of  two  otiier  lioliiers,  aNsignnieiit, 

mill  after  it  liecame  due,  wii«    indoi'Med   to  the  //,/,/,  tjiat   the   tnuiHitUH   had  not   heeii   com- 

liliiiiilitr  for   value  and  without  notice.     To  an  pleted,   and   that   the  stoppage  by  (!.   *  Co., 

ii.nnii  iiy  jilaiiititr  lo  recover  the  amount  of  the  acting  for  the  plaintitrsi,  wiih  good. 

iKilr,  ill  feiiiiaiitH  pleaded,  among  other  thingH,—  Itlrhnnl^on  <l  rtl.  v.  Tifiiilii;/ <' fi>.,  •2'S.  S.  1).,'.>M1. 
I.     'I'liat  they  were  induced  to  make  the  note 


liy  fiiiiid  ; 


HN.    Supplier  and  outflts  for  veHsel  - 


'.>.  That  there  never  wan  any  conNideration  Liability  for— I'laintiflk  liad,  for  some  years, 
fur  the  note,  JiiaNmuch  as  the  trees,  in  payment  furnished  outlits  and  sujiplies  for  a  fishing  ves- 
fiMwliicii  it  was  given,  were  not  of  the  cliaracter  sel,  of  which  defendants  were  part  owners.  In 
iuiil  immlier  reiiresented,  ami  were  worthless  Istitl  it  was  agreed  among  tiie  owners  tiiat  J. 
iiiiil  uiiiiierchaiital.le  ;  McC,  one  of  thum,  should  manage  the  vessel  on 

;t.    That  the  note  was  not  properly  stamped.  :  his  own  account,  paying  all  exjienses,  and  that 

A  defence  was  also  raised  uinler  the  .Statute  ■  the  others  slioulil  receive  certain  proportions  of 
Iif  Fiiiuils,  on  the  grounds,-  -  the  proceeds,  l.ut  of  this  agreement  plaiiiiitl'  had 

1.    Tliat  tlic  trees  were  g<MnlH  and  merchan-  .  no  notice. 


ilisc,  and  tlicre  wa.s  no  receipt  or  acceptance  of 
the  goods,  and  m.  jiart  payment  ; 


Hfdf,  that  defendants  were  liable  for  goods 
supjilied  by  plaintifl's  to  J.  McC.  in  the  usual 


That  the   contract   having  been  made  in  j  way  after  the  agreement. 


iffiTi'uce  to  growing  trees,  rciiuired  a  note  or 
meimiiiinilum  in  writing. 

It  iippcarcd  from  the  evidence  that  there  was  : 
no  Wiuianty  as  to  the  cotidition  of  the  trees  ;  !  1 


llyirsoi)  1 1  nl.  v.  Lyon^  tt  a/.,  '_'  N.  S.  1).,  4.")8. 

39.     Undisclosed  principal  —  Defendant 

•ought  goods  belonging  to  plaintiffs  from  A., 


tlwt  tlie    defendants    had    an    ojiportunity  of  j  their  agent,  A.  being  indebted  to  the  defendant 


exiiiiiiiiiiig  tlieni  before  making  the  contract,  and 
tlwi  tlu'v  iisked  to  be  relieved,  after  the  contract 
Wiis  ciiiiipleted,  on  another  than  the  niisrepresen 
tution  alleged. 

Hi  hi    (I.)     That  the  plea  of  fraud  and  mis 
rtprt'.seiilation  was  not  made  out  ; 


at  the  time  ;  defendant  testified  that  A.  did  not 
disclose  at  the  time  of  sale  that  the  goods  were 
not  his  own  ;  A.  and  his  bookkeeper  testified 
that  the  princijMils  were  disclosed  at  the  time  the 
goods  were  ordered,  and  jiroduced  a  niemoran- 
;  dum,  headed  with  plaintiffs'  name, containing  the 


(2.)  That  the  contract  for  the  sale  of  the  order  signed  by  defendant,  but  declined  to  pro- 
trees  had  no  connection  with  any  interest  in  land  ;  j  duce  their  books.     Defendant  denied  that  plain- 

(3.)  That  the  defendants  could  not  set  up  tiffs' name  was  on  the  memorandum,  when  signed 
Hunt  (if  consideration  for  the  note  as  a  defence  '  by  him.     The  jury  found  for  defendant  for  §75, 


toiin  action  by  an  innocent  holder. 


the  excess  of  his  offset.     The  $75  was  subse- 


McDoiiald,  C.  J.,   ,l!.ise)i/lii(i,  on  the  ground  |  quently  remitted  by  defendant. 
that  the  contract  was  one  on  which  the  original  I      //eld,  that  the  verdict  could  not  be  disturbed. 


payees  could  not  recover  under  the  .Statute  of  j 
Frauds,  and  the  plaintiff  stood  in  the  same  posi- 


The  Bowmanvilk  Jfachine  Co.  v.  Dempnter, 

•2R.  &C.,273. 


1227 


SALE. 


1228 


On  appeal  to  the.  Supreme  Court  of  Canada, 
Held,  that  the  defeiulant,  hiivint;  ijiuchased 
the  goods  without  notice  of  A. 's  being  an  agent, 
and  A.  having  sohl  tlieni  hi  his  own  name,  could 
sot  otf  tlie  debt  due  to  him  from  A.  personally, 
in  tlie  same  way  as  if  A.  iiad  beentlic  princi^ial ; 
and  that  the  verdict  shouhl  bo  sustained. 
The  RowmanrUk  Machine  Co.  v.  l)emp>it^r, 

2  f*.  C.  R.,  21. 


40.   Vendor  of  cargo  renders  account, 

including  charges  foi-  insurance  —  No  insur- 
ance effected— Cargo  lost— Vendee  liable  for 
price  of  cargo  — Defeiidants,   being   owners  of 
the  brigt.  Koderick  Dhu,  addressed  a  letter  to 
plaintiff,  owner  of  the  Camjibelltoii  Coal  Mines, 
requesting  him,  in  case  their  vessel  proceedc<l 
to  Big  Bras  D'Or  to  load,  to  furnisli  a  cargo  of 
coal  to  the  captain,  taking  his  note,  or  selling  in 
such  nuvnner  as  plaintitl'  was  accustomed  in  sucli 
cases.     Defendants,  as  owners,  guaranteed  piiy- 
ment,  and  re(iuestcd  plaintiff'  to  insure  amount 
of  cargo.     Plaintiff,  in  compliance  with  defend- 
ants' reijuest,    supplied   the   coal,   and   took   a 
promissory  note  for  the  price,  covering,   also,  a 
charge   for  premium   of  insurance  and  policy. 
On  tiie  same  day  he  mailed  a  letter  to  his  agents 
at  Halifax,  enclosing  the  note  of  hand  and  ))ill 
of  lading  of  cai'go,  ami  rciiucstiug  the  agents  to 
effect  insurance   for   the   amount  of   the   note,  j 
This  letter  was  proved  to  have  been  received, 
but   no   insurance    was    efl'ected.      The    vessel 
sailed  two  days  after  the  mailing  of  the  letter, 
and  was  lost  on  tlie  passage.      Tlie  master,  in 
his  testimony,  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).      1   asked  where   it   was 
insured.      He  said   that    was   Mr.    Campbell's 
business.     I  told  Mr.  Campbell  al)out  my  desire 
for  insurance.     He  said  he  would  give  no  one  a 
cargo    of    coal   unless   ho    insured    it    himself." 
Witness  also  said  he  would  not  have  signed  the 
note  unless  he  supposed  the  cargo  was  insured, 
and  would  not  have  sailed.     Defendants  having 
refused    payment  of  the   note,  and    a    verdict 
having  been  found  in  their  favor, 

Held,  on  a  motion  for  a  new  trial,  tiiat  though 
the  master  of  the  vessel  might  not  unreascmably 
have  supposed  that  plaintiff  had  undertaken  to 
efl'ect  insurance,  there  was  no  such  contract  as 
to  vary  plaintiff's  rigiit  to  payment  for  his  pro- 
perty sold  and  delivered  to  defendants  at  their 
request  and  order. 

To  constitute  a  contract  there  must  be  the 
mutual  agreement  of  l)otli  parties,  and  not  the 
notion  of  one  party  (mly  ;  and  there  must  be  a 
mutual  and  common  apprehension  of  the  subject 


matter,  They  must  not  honestly  differ  in  their 
meaning  ;  without  such  mutual  agreeniiMit  and 
understanding  there  is  no  contract. 

Cawphell  v.  McCad-e.     >al.,l  N.  S.  1).,  :W. 

41.    Warrant)  Of  goods    Breach  Of -E>i. 

denes-  A  contract  am<uinting  to  a  warriinly  of 
goods  sold  is  violated  if  the  articles,  owing  to  a 
secret  defect  existing  at  the  time  of  sale,  aftcr- 
wanls  liecome  deteriorated  in  value. 

The  sale  of  No.  1  .salmon  witliout  expres.s 
warranty  amounts  to  a  warranty  tliat  tlie  ti.-sii 
are  in  the  condition  prescribed  by  law  for  tish  of 
tliat  brand. 

Hard;/  <■>  a/,  v.  /-'nr/c/.rD^Aw  f  n/.,  .lames,  4;!'2. 


II.     SALK  OF  LANDS. 

I 

1.  Agreement   for  sale  of   land   good 

under  the  Statute  —  How  rescinded  by  parol 
—An  agreement  for  the  sale  of  lands  good  iindei 
the  Statute  of  Frauds  may  be  rescinded  licfoie 
breacli  of  it  by  parol,  provided  tliore  is  ii  total 
abandonment  of  tiie  whole  contract,  and  iiul 
merely  a  partial  waiver  of  some  of  its  tcniis ; 
nor  does  the  valiiiity  of  such  rescission  dii)enil 
on  the  existence  of  a  consideration, 
i  linn/aij  v.  I'rnn«,  R.  K.  !>.,  SIT. 

2.  Agreement  for  sale  of  land -Part 

payment  —  Rescission  —  Recovery  of  amount 
paid  — Wliere  A.  entered  into  an  agreement  m 
purciiase  land,  and  paid  part  of  the  purdiase 
money  to  R.,  and  it  was  subseiinently  agiewl 
between  the  parties  that  the  bargain  should  lie 
rescinded,  and  nothing  was  said  at  the  time 
relative  tc  the  return  of  the  money  paiil  liv  .A., 
A.  is  nevertheless  entitled  to  recr)ver  the  anioimt 

back  from  R. 

Camphill  v.  Hi-ndir.iou,'l'\'\wm.,'X& 


I     3.    Bond  for  sale  of  land  -  Failure  to 

complete    purchase  —  Agreement    to    apply 
'  money  paid  on  account  of  purchase  to  rent- 
Recovery  back  of  money  paid  on  purchase  in 
excess  of  rent— Defendant  entered  into  a  Iwml 
i  to  plaiiitifl"  under  seal,  in  which  it  was  icoiteil 
,  that  plaintiff"  had  agreed  lo  purchase  from  ile- 
;  fendant  a  tract  of  land  for  81,200  with  interest, 
as  follows  :    One  year's  interest  to  be  paid  in  mic 
year  from  date  of  bond  ;  one  year's  intere.ist  m 
two  years  ;    and  one  year's   interest,  together 
with   the   principal,    in   tiiree   years.     It   «as 
further  speciHed  that  if  default  should  he  iiwie 
in  the  payment  of  the  principal  or  intereift,  as 
agreed  upon,  plaintiff  should  become  a  tenant  to 


1221) 


SALE. 


1230 


(lefi'iiilant  at  an  tinmial  rent  of  872,  and  that  all  The  defendaiita  wore  partners  at  the  time  of  sale, 
iwyiiientsmadeliyplaintitf,  or  upon  certain  speui-  hut  dissolveil  partnership  in  Noveml)er  or  De- 
tied  notes  of  hand  indorsed  hy  way  of  security  cend)er,  1H83. 

for  tlie  purchase  money,  sliould  ))e  applied  to  the  PlaintitT  alleged  that  he  had  paid  defendant 
interest  or  rent,  as  tiie  case  inigiit  l)e.  Aii')tlier  !<2H0,  on  January  'Jiid,  J  SSI,  hut  the  only  pay- 
part  of  the  agret'inejit  stated  tiiat  wlmtever  sums  nient  appeared  to  have  ))een  hy  setting  off  pri- 
wort'  ajjplied,  as  aforesaid,  the  remainder  sliould  vate  del>ts  due  hy  King,  one  of  the  partners  to 
lie  applied  to  reducing  the  jH'inciiKil  sum.  And,  plaintiff  against  the  price  of  the  trees.  It  was 
fiiitlier,  that  in  the  event  of  plaintiff  failing  to  urged  on  Itehalf  of  the  plaintiff  at  the  argument 
|)iiy.  as  aforesaid,  and  surreiulering  up  tlie  hut  not  pleaded,  that  at  the  time  he  paid  tlie 
piemisus  at  the  end  of  tiie  three  years,  all  jiay-  money  he  had  no  knowledge  of  the  failure  to 
Hunts  made  in  that  ca.ie  heing  applied  towards  ship  tiie  trees. 

rent  at  tlie  rate  aforesaid,  the  said  note  and  the  ffc/d,  that  the  plaintiff,  in  order  to  recover, 

sail!  indorsed   note   shall  lie  given  hy  the  said  must  sliow  that  he  was  not  aware,  at  the  time 

(leftiidaiit,  itc.  he  pr,id  the  money,  of  the  failure  to  ship,  and 

//./'/,  tiiat  the  jilaintiff  was  entitled  to  recover  that    'here  must   he  a  new  trial  with  leave  to 

the  amount  tiiat  lie  hail  ])aid  defendant  over  and  plaintiff  to  amend. 

aliiivf  tlie  amount  approjiriated  towards  the  rent  CttlUr'  v.  McKeen  ef  at.,  "JO  X.  ,S.  K., 

fiirtiic  period  for  whicii  lie  occupied.  (S  R.  &  (i.),  I. 

Holmis  V.  J)arisoii,  3  R.  &  {',.,  (il.  ' 

8.    Part  performanee  of  contract  for  -- 


4.   Failure  of  consideration  -In  order  to 


Thougli  tlie  .Statute  of  Frauds  requires  the  irans- 


iiriiVLT  liack   money  paid  hy   iilainlitt',  undi'r  an  r       c        •   ..        ..  •     i      i    i.    i  i    • 

'    '  •'    •  '  fer  of  an  interest  in  lands  to  he  made  in  writing, 

iii'ieiineiil  for  saleof  lands  to  iiim,  on  the  I'round  ,i       ,  ,.,  i       „     . .     »    t       ti  i  ^         r 

'  r  1  '  o      '  tlie    parol    agreement    tor   tlie   sale  or  transfer 

f  failure  of  consideration,  idaintiff  must   j-'ive    i,  ,,.:„  ,  i  ,.,i r  .„„  i    •        t  i  i     ■ 

'  "         having  hecii  partly  perlornied,  is  enloiceal)le  in 

equity. 

Mnhoii  V.  McCul/i/,  1  X.  iS.  1).,  'A-2;i. 


iviilciice  of  theter'MSof  the  agreement. 

McDoiiall  V.  MrDoiiahl,  James,  41. 


3.   Measure  of  damages— Wlien  lands  are 

liiiiLrained  and  srdd,  tlie  measure  of  damages  is 
till'  price  for  whicli  tliey  were  sold. 

Li/iirh  V.  I'iii'j,  -  'I'hoiii.,  41.S. 


6.    Misrepresentation-  In  an  action  on  a 

promissory  note  given  in  paynieiit  for  land  pur- 
ehaseil  liy  defendant  from  plaintiff,  the  defend- 
ant lelicd  on  an  alleged  misrepresentation  as  to 
tlif  i|uaiitity  of  land  contained  in  one  of  the  lots 

>ul,|. 

//'/'/,  tiiere  lieing  no  evidence  that  the  mis- 
ii-pii^eiitation,  if  made  at  all,  was  made  falsely, 
(II  witii  intent  to  deceive  the  defendant,  or  to 
iiiiluce  liini  to  do  that  which  lie  otherwise  would 
nut  iuive  done,  that  the  defendant  could  not 
suochmI. 

/////  V.  MfL'od,  ".  R.  vSc  (;.,  2m. 

I 

«.    Money  paid,  on  price  of  goods  sold, 

under  mistake  of  facts  -Want  of  knowledge 
of  the  facts  must  be  pleaded  and  shown  in 
action  to  recover — Judgment  was  given  in  the 
pliiintitr's  favor  in  the  County  Court  in  an  action  ' 
til  I'l'cnver  a  sum  of  money  paid  on  a  contract  for 
tlie  purchase  and  sale  of  a  riuantity  of  trees, 
«iiiiii  it  was  alleged  defendant  hail  failed  to 
(Iflivt'r. 

I'iie  sale  of  trees  was  made  in  August,  1S8'2; 
tiicy  were  shipped  to  plaintiff'  in  Novemher  of 
tlie  same  year,  hut  were  never  received  by  him. 


0.  Purchase  at  auction  —  Deposit  —  Re- 
covery of — Plaiiilitf  gave  his  note  foi'  tiie  dei>i)sit 
required  on  a  purchase  at  auction,  l)ut  suhse- 
(juently  refused  to  carry  out  tlie  contract,  and 
sought  to  recover  the  amount  of  iiis  note. 

Hi  111,  on  the  authority  of  lilaik  v.  (,'i'iiier  and 
(•'nty  V.  Whilman,  '2  Thoni.,  157,  that  he  could 
not  recover. 

J.iiiil<ni/  V.  Xirid-ir,  2  X.  S.  1).,  10<>. 

10.    Sale  of  land  -Autliorlty  of  agent  — 

Speciflc  performance — Defendant  drew  up  and 
l)laced  in  the  hands  of  Allan,  a  real  estate  agent, 
a  iiiemorandum  in  the  following  form  :  "I  will 
sell  ten  acres  of  lands  (including  the  water  lots), 
as  also  two  and  three-quarter  acres  of  lands 
hclonging  to  Judge  Jolinstoiie  adjoining,  for  tlie 
sum  of  four  liundred  and  thirty  dollars  jier  acre, 
equal  to  .?.'>,482.r)0,  or  til, 370  12s.  (id.,  and  on 
which  sum  I  will  allow  you  a  coinmi.ssion  of  two 
per  cent."  The  niemorandiim  then  specified  the 
terms  of  sale.  Allan  entered  into  a  written 
agreement  with  plaintiff  for  the  sale  of  the  land 
on  tlie  terms  mentioned.  The  agreement  not 
heing  carried  out,  plaintiff  brought  a  sjiit  for 
siieciric  performance,  setting  out  the  two  agree- 
ments. 

Hi'lil  (I.)  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, 


1231 


SALE. 


1232 


(2.)  Thivt  plaintiff's  right  to  a  specific  per- 
formance rested  entirely  on  the  defendant's 
memorandum  ;  that  defendant  was  no  j)arty  to 
the  agreement  entered  into  by  Allan,  and  tliat 
when  the  latter  brought  into  the  agreement  any- 
thing that  went  beyond  the  memorandum  he  ex- 
ceeded his  authority. 

{'A. )  That  the  agreement  could  not  be  imported 
into  the  memorandum,  and  the  latter  being  of  a 
vague  and  uncertain  ciiaracter  and  not  suthcient- 
ly  describing  the  lands,  specific  performance 
could  not  be  enforced. 

Sections  (>1  to  70  of  the  Practice  Act,  chajjter 
1.S4,  R.  S.  (,Srd  series),  apply  eijually  to  demur- 
rers in  e(juity  as  at  common  law, 

Hormhy  v.  Johiixloiii',  3  N.  tS.  1).,  1. 

11.  Sale  of  lands  Condition  precedent- 
Action  for  consideration  money — In  an  agree- 
ment fur  the  wale  of  lamls,  where  it  was  stipu- 
lated, that  when  the  land  was  surveyed  the 
plaintiff  should  give  the  defendant  a  liond  for  a 
<l'-'e<l,  or  a  deed  on  being  secured  the  purchase 
money, 

Held,  that  tlie  survey  was  not  a  condition 
precedent  which  would  prevent  the  plaintiff 
from  recovering  tlie  consideration  money. 

Jfoivi^  V.  Hutxlon,  Cochran,  61. 

12.  Sale  of  land— Payment  of  moiety  of 

purchase  money  —  Foreclosure  by  vendor, 
who  buys  and  sells  at  an  advance— Relief — 
Where  a  bargain  was  entered  into  between  the 
I)laintiff  ami  defendant,  for  the  sale  of  lands, 
and  the  <lefendant,  after  ])€iying  a  moiety  of  tlie 
purchase  mcmey,  (juits  the  country  without  com- 
pleting liis  purchase,  leaving  the  plaintiff  in 
possession,  and,  in  his  absence,  the  plaintiff 
takes  out  proceedings  as  in  foreclosure  of  mort- 
gage, under  which  the  projierty  is  sold  and 
bought  in  by  him  f<pr  a  n'.uch  less  ])rice  than  tiie 
original  jiurchase  money,  and  soon  aftoiwards 
re-sold  to  third  parties  at  a  large  advance. 

Ht/il,  in  an  application  by  defendant  to  be 
allowed  to  come  in  and  defend,  that  he  is  en- 
titled to  relief  in  eciuity,  and  tliat  the  plaintiff 
must  be  considered  as  his  trustee,  and,  as  such, 
bound  to  account  to  him  for  tlie  jn'otils  arising 
from  such  re-sale. 

Spurr  v.  Eldtrkin,  Cochran,  47. 

13.  Specific  performance -Sale  of  lands— 

T.,  by  written  contract,  agreed  to  sell  to  1).  a  I 
farm   for   il'iOO,   but   subsecjuently    refused    tfi  ' 
execute  the  deed,  and  forcibly  ejected  1).,  who 
had  been  put  in  possession.     I),  brought  a  suit 
for  specific  performance   to  which   T.  pleaded  ; 
several    pleas,     attacking     the    agreement    on  | 


various  grounds,  but  raising  no  distinct  issue  nf 
circumvention  or  fraud,  though  by  way  of  nciinl 
in  his  fifth  plea  he  stated  tiiat  he  had  lieon 
over-reached,  and  tliat  I),  had  by  undue  iulviui- 
tage  endeavored  to  obtain  his  projierty  for  an 
inadequate  consideration.  The  jury  found  tlmt 
T.  was  not  incapable  of  making  a  proviileut 
bargain,  that  the  agreement  was  dulj-  exjiliiiiicd 
to  him  at  or  before  the  execution,  that  I),  iliil 
not  depreciate  the  value  of  the  farm  tn  liini, 
knowing  it  to  be  of  greater  value  than  tlio 
amount  of  the  purchase  money  ;  but  they  also 
found  the  value  of  the  farm  to  be  .*!'J.")<),  ami  that 
1).  had  enjoined  on  T.  secrecy  as  to  the  liiiiiriun. 

JIdd,    Bliss,    J.,    dixsf  ii/iii'i,     tlnit    1).    wiis 
entitled   to  a   decree  for  specific  perfonnamc. 

/'(V  Hliss,  .1. — That  he  should  rather  lie  left  \'< 
his  remedy  by  action  for  breach  of  contract. 

Jhd'iii  V.  Turin, \  1  01.1.,  1. 

S"   .tlCTION,  4-ASSICiSME.\T,  li 

14.  Statute  of  Limitations  -  Statute  of 

Frauds — Plaintiff  brought  action  in  lS7.'{tii  (.ii- 
force  ))ayuient  of  .'*4(KI  and  interest  for  lainl 
alleged  to  have  been  purchased  by  dcfemlant, 
the  deed  being  made  out  to  defendant's  lniitlur 
and  left  with  a  third  ])arty,  to  be  delivered  tn 
the  defendant  on  his  handing  him  a  note  for  the 
purchase  money,  signed  by  himself  ami  his 
lirother.  Defendant,  in  bis  answer,  cmitra. 
dieted  all  the  statements  in  the  writ  and  set  mit 
that  the  sale  was  made  directly  to  his  brothii, 
though  he  admitted  that  he  would  iiave  ii5;si.-.ttil 
him  by  joining  in  a  note  for  the  purchase  inniuy. 
The  evidence  was  conflicting,  but  the  iilkgLil 
agreement  having  been  made  in  ISWi.  thefcunt 
held  that  the  delay  in  suing  was  itself  a  \m-  to 
the  action,  if,  as  plaintiff  conten<led,  the  ayiie- 
ment  was  to  be  considered  as  the  original  umlti- 
taking  of  the  defendant,  while,  on  the  other 
hand,  if  it  was  to  lie  viewed  as  a  guarantee,  the 
Statute  of  Frauds  prevented  a  recovery. 

ll'dhrtmn  v.   117//,  R.  K.  D.,  1!):. 

15.  Terbal  agreement  for  sale  of  lands 

inadmissible  to  show  consideration  —  Where 
a  note  was  given  to  ])laintiff  in  part  payment 
of  purchase  money  of  lands,  under  an  agrcciiieiit 
for  sale  and  purchase  not  reduced  to  wriiinj;, 
held,  that  evidence  could  not  be  given  of  the 
consideration,  and  that  plaintiff  could  not  re- 
cover the  amount  of  the  note. 

lilafk  V.  (•'(■itnr  ,/a/.,  2  Thoni.,  !•": 
Lindsay  v.  Zirirktr,  2  N.  S.  1)..  H*'. 

16.  Verbal  agreement  for  sale  of  land- 
Vendor  takes  poBsession- Where  the  coiisiilei- 
ation  of  a  promissory  note  was  the  purchiise  at 
land    of    which    the    maker    took    possession, 


1233 


SCHOOL  LAW. 


1234 


tlimigh  thero  was  no  written  agreement  for  the  [  validity  of  tlie  mortgages  and  of  the  proceedings 
sale  of  the  land,  and  the  consideration  was  not  in  the  foreclosure  suit  were  also  attacked.  The 
expressed  on  the  face  of  the  note,  the  maker  action  was  tried  heforc  a  Judge  without  a  jury, 
tnnnot  set  up  as  iv  defence  the  want  of  consider-  i  and  a.  verdict  found  for  tiie  defendants. 


(•my  V.   Whilman  ft  a/.,  2  Thom.,  1.57. 

[XoTK. — In  the  argument  of  (I'ray  v.  Whi/maii, 
wliifh  was  decided  after  li/rirk  v.  (iisin  r  <t  at., 
the  former  case  is  distinguished  from  the  latter 
liy  the  fact  of  the  maker  of  tl>e  note  going  into 
|)(istit'ssion.  The  Court  in  (iray  v.  Whitmuii 
iiiiTely  said  tiiat  it  was  clear  there  must  he 
judgment  for  the  plaintiff.] 

II.    Win  —  Mortgnge  by  testator  -  Fore- 


i'tion.  Hibi,  that  the  plaintiffs  coidd  oidy  recover  on 

the  strengtli  of  their  own  title,  and  were  hound 
to  show  a  title  superior  to  that  under  which 
defendants  had  [Kisscssion.  As  they  had  not 
shown  such  title  the  motion  to  set  aside  the 
verdict  must  he  discharged  with  costs. 

Kiariuy  <f  «/.  v.  Crrihimii  it  ciL, 

(i(".  L.  T.,  14:{. 

0/1  appinl  to  thi-  Suprnni'  Court  of  Cniinila, 

Hi  III,  affirming  the  judgment  of  the  Court 
closure  of-  Suit  to  sell  real  estate  for  payment  '  below,  tliat  even  if  the  sale  umlcr  tlie  decree  in 
(if  debts— Decree  under— Conveyance  by  pur-  tlicClianccrysuit  was  invalid,  the  title  to  the  lan<l 
chaser  at  sale  under  decree —Assignment  of  would  be  outstanding  in  the  mortgagee  or  those 
mortgage  —  Statute  confirming  title  —  A.  M.  ;  claiming  under  her,  and  the  phiintiffs  therefore 
iliid  in  1S.S7,  and  by  his  will  left  certain  real  ]  could  not  recover  in  an  action  of  ejectment, 
cstalclo  his  wife,  M.  M.,  for  her  life,  and  after  I  Snntih-,  that  such  sale  was  not  invalid,  but 
her  death  to  tiieir  children.  At  the  time  of  his  passed  a  good  title,  Henry,  J.,  iloiililiiii/. 
ik'iitli  tiiere  were  two  small  mortgages  on  the  said  //,  /il,  a/.-,o,  that  the  Statute,  4tli  It.  S.,  c.  M, 
rwil  estate,  which  were  subseiiuently  foreclosed,  s.  47,  vested  the  said  lan<ls  in  the  defendants  if 
hut  no  .sale  was  made  under  the  decree  in  such  tlicy  had  not  a  title  to  the  same  before,  Henry,  ,1., 
suit.     In   1841,  the  mortgages  and  t.ie  interest  •  i/oulitin;/. 

iif  the  mortgagee  in  tlie  foreclosure  suit  were!  Kiurmy  v.  Cr<  i/iiinn,  \4  S.  C.  H.,  IVA ; 

assigned  to  one  J.  I>.  U.,  who,  in  1849,  assigned  <i  ('•  I-  T.,  839. 

and  released  the  same  to  M.  .M.  In  IS4I,  i^,,,^,.^.  („  .^j.^^^.^^j  j„  ^,,^  j.^.j^.y  (.„^,„^.ii  ^„, 
M.  M.,  the  administrati'ix,  with  the  will  of  A.  .M.  i^.f^gi,,] 
.iniiexed,  tiled  a  bill  in  Chancery  for  the  ])uri)ose 
I'f  liaving  this  real  estate  sold  to  pay  the  debts 
iif  the  estate,  she  having  ])reviously  a])plicd  to 
the  (Idvernor  in  Council,  under  a  .Statute  of  the 
I'nivince,  for  leave  to  sell  the  same,  wiiich  was 
afused  on  the  ground  that  such  leave  cfudd  not 
lie  granted  for  the  sale  of  a  particular  part  of  the 
estate,  an<l  if  the  whole  estate  was  sold  and  there 
shduld  be  a  surplus,  there  would  be  no  mode  of 
a])p(irtioning  such  surplus  among  the  devisees. 
X  decree  was  made  in  this  suit,  and  the  lands 
scilil  to  M.  M.  She  afterwanls  conveyed  said 
lands  to  the  Connnissioners  of  the  Lunatic 
Asylum,  and  the  title  therein  passed,  by  various 
.\cts  (if  the  Legislature  of  Nova  Scotia,  to  the 
present  defendants,  a  Statute  having  been  passed 
in  1874,  confirming  the  title  to  the  said  hinds 
in  the  Commissioner  of  Public  Works  and 
Mines.  M.  K.,  devisee  under  tiie  will  of 
A.  M.,  brought  an  action  of  ejectment  against 

'he  Commissioner  of  Public  Works  and  Mines  SCHOOL  LAW. 

iiml  the  resident  physician  of  the  Lunatic  Asy- 
lum, whieh  was  built  on  the  lands,  and  in  trie        1.     ACtS  18«5,  C.  2S,  S.  8  — 
>^^imrse  of  the  trial  contended  tiiat  the  sale  under       Held,  that  "  all  future  assessments  "  in  Acts 
tlic  decree  in  the  Chancery  suit  was  void,  iiias-    ISO"),  cap.   28,  sec.   S,  referred   to  assessments 
iimch   as  the   only   way    in   which    land   of   a    made  after  the  assessments  contemjdated  in  sec. 
Jeceased  person  can  be  sold  in   Nova  Scotia  is    7  should  have  been  completed. 
^'  petition  to  the  (iovernor  in  Council.     The  :  In  n   Pimo  it  al.,  '2  Old.,  178. 


SALVA«E- 
Su  SIIIPPINU. 


SATISFAtTIOX - 

I.     RY    WAY   OF   ACCORD  — 

s  '  ACCORD  AXD  SATISFACTION. 


II.    OF  dUDCi.MKXT  — 


sa  JUDGMENT. 


1235 


SCHOOL  LAW. 


123G 


2.  Assessment    Appeal  from  to  Sessions : 

— Power  of  Sessions  to  set  aside  assessment-  - 
WiieiL'  the  groniiils  (if  iiii  iippual  from  an  assess- 
nicnt  for  school  rates  are  simply  matters  of  detail 
tlie  appeal  should  lie  piiiiiarily  to  the  Court  of 
Sessions  and  not  to  tile  Supremo  Court. 

Tlie  Court  of  .Sessions  has  power  to  set  asiile 
a  wiiole  a.sse.ssment  where  it  manifestly  api)ears 
tliat  it  lias  liuen  irregularly  and  therefore  ille- 
gally made. 

//(  r>  Ax.ii.t.iiiiiii/  School  Italf, 
Sir/lnii  >,:,  Aii/!<ioi,i-<fi,  :i  N.  S.  1).,  1'2'_'. 

3.  Cy  pres -Testator,  who  died  in  1830, 

devised  jiroperty  to  the  Kirk  .Session  of  .St. 
Matthew's  Ciiureh,  in  trust  to  tit  it  up  for  a, 
school  under  tlie  charge  of  the  .Session.  The 
property  went  into  the  jKisseasion  of  the  devisees, 
but  no  steps  were  taken  to  carry  out  testator's 
intoiitions.  Proceedings  were  instituted  in  the 
name  of  tlie  Attorney-Ciencral  to  ohtain  a  decree 
aiitiiorizing  the  adoption  of  a  scheme  to  carry 
out  testator's  intentions,  the  devisees  and  tile 
heirs-at-Iaw  lieiiig  made  parties.  None  of  the 
defeiKlauts  appeare<l  and  a  default  was  entered. 
C)n  application  lieing  made  for  a  reference  to  a 
Master,  tlie  Court  allowi'd  the  defendants  to 
raise  the  i|ucstion  wiietiier,  the  devisees  having 
taken  no  proceedings,  tiie  jiioperty  did  not 
revert  to  tlie  heir-at-law,  wiio  then  appeared  by 
Counsel  and  had  a  day  appointed  for  the  argu- 
ment ;  but  on  the  day  appointed  for  argument 
none  of  tiie  defendants  appeared,  and  the  cause 
was  referreil  to  a  Master,  who  rejiorted  that  the 
funds  should  be  appropriated  towards  tlie  erec- 
tion of  a  Higii  .School  r.uilding  in  Halifax,  the 
Kirk  Session  to  have  the  power  of  nominating 
two  free  sciiolars,  tiiey  iiaving  concurred  in  the 
rec.'iiniiiendation  with  tliat  condition.  No  oppo- 
sition being  made  to  tliis  report,  and  no  counter 
scheme  being  suggested,  tlie  report  was  con- 
fiiiiied  and  the  scheme  adopted. 

Altoriiey-Gfiif'ra/  v.  Arrri/  f>  nl., 

R.  E.  1).,  253. 

4.  Dartmouth -Liabiiit}   of,   for  school 

rate  -  4th  Rev.  Stats.,  e.  32,  s.  52 ;  of.  5th 
Rev.  Stats.,  c.  29,  a.  43  —  Act  incorporat- 
ing Town  of  Dartmouth  —  1873,  c.  17,  as. 
27  &  28,  N.  S.  —  The  Act  incorporating  tlie 
Town  of  Dartmouth  provided  that  the  Town 
Council  shoulil  have  jurisdiction  over  the  support 
and  regulatirm  of  the  public  schools,  regulating 
the  as.sessnients  and  collecting  the  assessments, 
and  that  they  should  vote,  assess,  collect,  receive, 
appropriate  and  pay  whatever  moneys  were 
refjuired  for  oounty  assessments,  poor,  school, 
and    other   rates  ami  assessments,  and   should 


have  within  the  Town  all  the  poweis  relating 
thereto  vested  in  the  S(^ssioIls,(irand.)llI  y,S(  lioul 
.Meeting  and  Town  Meeting.  Hy  anollier  sentimi 
it  was  enacted  that,  after  the  passing  of  tiie 
Act,  tiie  Town  should  be  set  oft'  into  a  se]);irate 
scho(d  section,  and  slionld  have  tlie  exiieiidiiiiic 
of  all  rates  raised  within  its  limits  for  tlie 
schools  of  the  Town,  as  also  of  all  govermiieiit 
and  school  grants  for  such  schoids,  which  giants 
should  be  paid  to  the  Town. 

//'Ill,  that  notwithstanding  these  enactiiieiit-^, 
the  Town  Council  was  bound  to  assess  and  pay 
over  to  the  County  Treasurer  its  ratable  iiroiim 
tion  of  the  a-ssessment  of  thirty  cents  jier  lieail, 
provideil  for  liy  4tli  Rev.  Stats.,  c.  32,  s.  .'rj. 
//(  n:  Ikirlmonlh  Siliool  .4<i»'>.«;h<'/(^ 

3  R.  vt  ('.,  147. 

.i.    Dartmouth   -  Mandamus  -  4th  liev. 

Stats.,  0.  32,  s.  52— A  inniiilamiis  was  apjilinl  rm 
at  the  instance  of  the  Sessions  for  the  County  of 
Halifax,  to  compel  the  Wanlen  and  Couiiuil  of 
the  Town  of  Dartmouth  to  assess,  on  the  ]iin]i. 
erty  of  the  Town  liable  for  assessment,  tl  j  sum 
of  i*!."),!)?!)  for  its  proportion  of  County  si.lioi>l 
rates  for  the  years  1873-7H,  under  section  .V.' nf 
4tli  Rev.  Stats.,  c.  .3'2. 

//I'/il,  that  the  Warden  and  Town  Couiuil 
ought  to  have  assessed  in  each  year  for  the  jii'i- 
portion  of  tlle(^n^nty  school  assessment  |)ay.ilile 
liy  the  Town,  but  that  in  view  of  the  Act  to 
amend  the  Act  to  incorporate  the  Town  [Arts 
I.S77,  e.  40),  section  3(»of  which  provided  tluit 
the  sum  to  be  voted  at  the  annual  iiieetiiig  of  llii' 
Town  ft)r  the  estimates,  including  ordinal y  aipl 
extraordinary  expen.ses,  should  not  excecil  in 
any  year  the  sum  of  .'?1.'>,(X)0,  there  was  a  ilirti- 
culty  in  the  way  of  issuing  the  maiiilamn<,  ii« 
asked  for. 

<piatrc,  whether  there  should  have  been  a  iv 
lator. 

/Vr  .lames,   J.— The   City  of  Halifax  i>  iwi 
,  exeni]>ted  by  chapter  3'2,  4tli   Rev.  Stat.s.,  fnmi 
contribution  to  the  County  school  rates,  hut  i- 
eiinally  liable  with  the  Town  of  Dartnioutli. 

The  Supreme  Ccmrt  of  Nova  Scotia,  wilhou! 

determining    whether   the    reipiired  assessment 

was  possible,  and  was  obligatory  when  lli>'  "'i' 

was  issued,  made  the  rule  iii"!  for  a  win'l'i"!"' 

■  absolute,  leaving    these   questions   to  be  diti'i 

j  mined  on  the  return  of  the  writ. 

I  (^)nl'e.n  v.  Ton-n  Covn'-il  of  JMrtiiioii'li, 

'  1  R.  &<;.,4"'.'. 

On  appeal  to  thf  Sitjinme  Court  of  Civuvhi. 

Held,  .Strong  and  (iwynne,  J.I.,  di^'^'^nHwu 
that  the  granting  of  the  writ  in  this  case  was  iii 
the  discretion  of  the  Court  below,  ami  the  e.wi 


^'2^7  SCHOOL  LAW.  1238 

fisccif  that  cliscretion  cuiinot  ;it  pips.Mit  l>ei|U(;s-  hold  (hiring  their  loiitimiaiKc  in  tiie  said  offices, 

''"'"'''•  respeutively,  fur  the  convenience  and  lienefit  of 

/'')•  Ritcliie,  ('.  ,J.— TJiat   tiie  Town  nf  Dait-  all  the  inhabitants  of  saiil  Townshiii :  and   in 

oiniith   is  not,  hut   that  the  City  of  Halifax  is,  trust  that  all  schools  in  the  Township  furnished 

exiiiipted  l>y  4th  Rev.  Stats.,  c.  :<•_',  from  contri-  witii  teachers  (lualitied  agrceaMy  to  law,  ami  con- 

hiilioM  to  the  County  school  rates.  tracted  with   for  a   term   not    less   than   a  year, 

l,hi,.ii  V.   Wdfihii  fiiiil  CoiiiirU  0/ th    Toiri,  shouhl  be  entitled  to  an  eiiual   portion  of  the 

(;/'  Dfirhnoiitfi,  US.  C.  R.,  .■>((!).  rents  and  protits,  provided  surii  masters  should 

receive,   free  of  expense,  such  jioor  cliihlren  as 

«.     nartmoiltll     liiablllity  of,  to  the  Muni-  uiiuditliesenttotheni  by  thetru-stees.     Down  to 

cii)ality  of  County  of  Halifax  for  .school  rates  I.ST.'J  tiie  rents  and  protits  were  divide.l  among  all 

-Assessing  present    ratei)ayers   for   rate,s  of  the  .schools  of  the  Township  coinplying  witii  the 

previous  years  -//r/il,    Ritchie,   C.  J.,  ili.^sHtt-  terms  .set  out.     After  that  date  tlie  funds  were 

/»;/.  that  the  Town  of  Dartmouth  is  not  liable  to  allowed  to  accumulate,  until  lH7!t,  when  the  de- 

cniitiiliute  to  the  assessment  for  the  support  of  fendants,  being  trustees,  ptoposed  to  ai)proi)iiate 

siiinnls    in    the  .\Iunici])ality    of    the  County  of  the  proceeds  to  the  erection  of  a  schonl  house  in 

Hiilit'ix.  a  particular  sciiool  section,  on  land  wliicii   did 

//'/'/,  a/vo,  that  if  so  lia))le,  a  wilt  of /;(rf(/(/r(W((>'  not  belong  to   the   To«  iisiiip,  liut  of  which  the 

cdiild  not  i.ssue  to  enforce  tiie  i)iyiiient  of  such  trustees  expected  to  get  a  deed.      I'lio  section  in 

(oiilribiition,  as  the  amount  of  liie  same  would  which  it  was  proposed  to  erect  tiie  sciioolhouse 

111'  uncertain  and  dithcuit  to  be  ascertained.  was  twenty  miles  distant  from  one  end  of  tiie 

//'/'/,  al.to,   that  tiie  latepayers  of   ISMi  could  Township, 

imt  lie  a.-<sea.sed  for  school  I  ates  leviable  in  previ-  //-A/,  tiiat   the  laiiils   were  held  subject   to  a 

""■' .^■•■■^i'''-  trust,  for  the  beiietit  of  all  the  scliools  comply- 

/*'/■    Ritchie,    C.    .1.,    (//v,.  ,,/,';„^,    that     only  iiig  willi  tiie   terms,  and  tliat  the  proceeds  must 

the  City  of  Halifax  is  exemi)!  from  siicli  contri-  hi'  divided  among  them  all,  and  that  the  action 

liiitinii.    and    tliat    tiie    Town    of    Dartmontli   is  "as  liglitly  brought  in  tiie  name  of  tlie  .Vttoruey- 

'''''''^■-  <  o'lieralof  the  Province,  and  not  of  the  Attoiney- 

77c    Irani,  II   ainl    Coniirii  of  thi    'J'oirn  1,/  (Iciicial  of  Canada. 

l)'trfmou/h  v.    T/k'  (^hi-iii,  on  flu    nhtl'iDii  At''!J-<!i  mral w  Axfoiil  it  al.,\\..V..  \).,  \-l\). 

11/ > III  Miiiii'ri/ifiliii/  o)' fill-  Conii/i/  of'  Jfii/i- 

fn.,:     (Xof  n/..o'>..i  l„/o,rj,  U.s.'c.    i;.,  On 'i/,,„nllo  fh,  Snrnni,  Court  of  Xora  Srofiii, 

4."i.  //'/'/,   that  the  jjlaintirts  Were  not  entitled  to 

tlie  decree   and   di.-triliiition   for  wliicii  the  suit 

IN'nTK  —This  case  was  three  times  befoie  the    was  l.rou'.'lit 
'""'"'■""■  ''"'"'^  of  Cana.la.  /.,  ,  .i,„„^,,  j,^  ,/;,.,„/;„,,.  tliat  tlie  bill  slioul.l 

hi.     On  appeal  from   the  de,isi,.n  of  the  Su-    )„,   sustained   ami    its    praver    granted    for   an 
jimiie  Court  of  Xov,-<  Scotia  reporU'd,  I  R.  AC,    accounting  with  an  injunction. 
4ii:>      Ai.peal  reported,  !t  S.  C.  R.,  M).  |  At'oniiy-O.  «rm/   v.  Axfhrd  i-t  a/., 

-Mil.     On  appeal  from  decision  reported,  ;")  R.  5  j.{    ^\^  ^■      |,,- 

*:  •■..  .'til.     Not  reported  on  ajjpeal,  exccjit  in 

Ciis.  Digest,   "Jh"),   when  it  was   lii-lil,     that   the       On  apjiral  fo  flu  Sii/iniiu   Covii  0/  Cnnnila. 
piviiniinary  objection  that  a   demurrei;    would        //-A/,  reversing  the  judgment  of  the  Supremo 
nut  he  to  the  return  to  a  nmmlamii^  must    be    Cuirt  of  Xova  .Scotia,  and  icstoriiig  tliat  of  tlie 
wi'iruled.and  it  was  decided  that  the  case  must    Court  of  Hist  instance,  that  the  trustees  had  no 
iHieard  on  the  merits.  discretion    as    to    the   application    of   the    trust 

'M.     Two  appeals,  heard  together,  from  de-    funds,  but  were  bound  to  distribute  them  among 
oisions  not    rei)orted  below.     Appeals  reported    all  the  schools  of  the  Township,  which  would  be 

•'^- C  R.,  4.).]  entitled  to  particijiate  under  the  terms  of.  the 

trust,  however  wanting  in  utility  such  a  disposi- 

I.  «irant  to  Toirnslilp  of  land  for  school   tion  of  said  funds  might  be. 

-Charitable  trust  -Acceptance  of,  by  trustees  Ihhl,  n/>o,  that  notwithstanding  the  ab.sence 

-Discretion  of  trustees  -Doctrine  of  cy  pres  of   words   of   inheritance  in   the   grant,  it  was 

-liy  letters  patent  in  ITtil,  the  school  lands  in  sufficient   for  the  purpose  of  this  suit  that  the 

"if  township  of  Cornwallis  were  grante.l  to  the  defendants  had  acted  as  trustees, 

•lien  Hector  and  Wardens,  and  the  Rector  and  Hdil,  also,  that  the  Attorney-CJeneral  of  the 

^alliens    for    the   time   being    of    St.    John's  Province  was  the  proper   party   to   liring  this 

'luiith,  Cornwallis,  in  trust  for  the  use  of  the  suit. 

■"•linol  „r  .sell  )ols  in  Cornwallis,  to  have  and  to  Ppi-  Strong,  J. --Under  the  doctrine  of  cy  pres, 


1239 


SCHOOL  LAW. 


1240 


.1  tcftTcnce  Tni>,'ht  lie  made  to  the  Master,  to 
report  a  scheme  for  tlie  fulnre  administration  of 
the  cliiirity. 


the  third  TriiHtec,  removed  the  school  innisc 
from  its  tiieii  site.  No  Hciio(d  was  miiiiitaincd 
during  the  winter,  though  efforts  were  made  Ky 


Attorii<y<lniirul  v.  Axford,  13  S.  V.  R.,  294.  I  the  Trustees  to  maintain  one.     In  June,  1874, 

the  Commissioners  of  .Schools  for  the  diKlnCt, 

8.  School  asseSHment  —  Construction  4th  j  i'l^-duding  secti(m  Hi,  dismissed  the  three  Tnis- 
Rev.  Stat.,  c.  32— M.,  Son  &  Co.  carried  on  |  tees  and  aj)jM)inted  three  others,  assumiiij,'  the 
business  in  the  City  of  Halifax,  and  also  at  '  power  to  do  so  under  chap.  .'«,  4th  F^.  S,,  sec.  •_'(». 
Hedford,  in  tlie  County  of  Halifax,  owning  and  The  newly  apixiinted  Trustees  hrought  an  aciidii 
occupying  projierty  liable  to  assessment  for  of  trespass  against  the  two  Trustees,  who  h.id 
school  ])nrposes  in  both  places.  The  meudiers  removed  the  scliocd  house,  antl  their  servants, 
of  the  firm  resided  in  the  City  of  Halifax.     Tre-    for  such  removal. 


vious  to  the  assessment  of  ISS'2  the  firm  made 
an  iissignment  for  the  general  benefit  of  their 
creditors  to  |)laintiff  wlu)  was  carrying  on  busi 


JI'liI,  that  \inder  the  circumstances  the  Coin- 
missioners  had  no  right  to  dismiss  the  origimd 
Trustees  and  appoint  others,  and  that  even  if 


ness  at  Bedford  under  the  tirm  name  at  the  time  [their  appointees  had  been  legally  appoiniwl 
of  the  assessment,  but  al.so  resided  in  Halifax,  j  Trustees,  no  action  woul.l  lie  at  tlicir  -iiiit 
A  portion  of  the  property  at  Bedford  assigned  i  against  ilefendants  for  acts  conniiitled  <hii  irif; 
to  plaintifT  having  been  levied  upon  for  rates  1  their  term  of  office. 


claimed  to  be  due  for  the  su]ii>ort  of  schools  in 
that  section, 

Hflil,  Weatherbe,  J.,  iliss<iiliv<i,  that  after 
the  assignment,  un<ler  Revised  Statutes  (4th 
scries),  chapter  .TJ,  sections  .')4  and  (i4,  the  pro- 
perty levied  upon  was  only  liable  to  assessment 
in  the  section  in  which  the  original  owners  last 

resided. 

Grnhnm  v.  Monniihuii,  .'>  K.  k  <!.,  lS(i. 

9.    School  rates  -Collection  of-Excluston 

of  female  ratepayers  —  Replevin  will  not  lie 
against  a  constable  for  pi'opeity  seized  by  him 
under   a  warrant   of   distress  for   the  non-pay 


Trii-vtii.i  (if  Si'honl  Sfctioii  lH  v.  C(iiii<  foii, 

•2R.  »fe  ('.,  32s. 

On  fi/i/if(i/  to  thi'  Siiprinie  Com-'  of  CniKidc, 

J.  C.   and  .1.  A.  C,  while  Trustees  of  Sclmul 

I  Section  No.  Hi,  Stuith  District  of  I'iclou  Ccitiiiiy, 

'  anil  N.  V.  as  theii'   servant,   entered   upon  tlio 

sclio(d  jdot  belonging  to  their  section,  rciimviMl 

!  the  school  liouse  from  its  foundat.on,  and  'le- 

;  stroyed    a   jmrtion    of   the   stone  wall.     S'l'ise- 

(juently    the  Trustees   of    said    s-chool    .'tctioii 

brought  an   action   of  trespass   (/iinn    f/inismii 

frujit  ami  d<   houix  nx)iortali<  against  the  saiil 

.T.  C,  J.  \.  C,  and  N.  C.,  for  injury  done  to 


ment  of  .schord  rates,  under  Revise.l  Statutes  i  the  sclio.d  lumsc,  the  property  of  the  section. 
(second  series),  c.  (i(»,  sec.  1(»,  although  such  ;  The  .lefen.lants  pleaded  iiihr  alia  justilicatjun 
warrant  be  defective  in  not  reciting  that  the  '  "f  the  acts  comi)laincd  of,  asserting  that  liie 
c.dlector  liad  made  the  oath  re,|uired  tf>  be  ma.le  !  acts  were  legally  i)erformed  by  them  in  tluMr 
previous  to  the  issue  of  such  warrant,  which  •■  capacity  of  Tiuslees.  Sub-sec.  4  of  s.  .SO,  c.  .'f.' 
oath,  however,  had  in  fact  been  ma.le.  "f  4th  Rev.   Stats.,  declares  that  the  sites  for 

P,r  Young,  C.  .T.— The  ouly  remedy  in  such  j  scluxd  houses  shall  be  defined  by  the  Titistws, 
a  case  is  by  .rrHontrl,  or  a])pea!  to  the  Sessions,  subject  to  the  sanction  of  the  three  nearest  C-nn- 
A  8cho<d  rate  is  not  vitiate.!  by  the  exclusion  of  1  missioners  residing  out  of  the  section.  In  this 
female  ratable  inhabitants  from  voting  against  case  the  sanction  of  the  three  nearest  Comniis- 
the  rate.  sioners  was  not  obtained. 

McGrojor  v.  Paihrson,  1  Old.,  211.        //,/</,  on  appeal,  that  under  4th  Rev.  Smts., 

c.   :«,  J.   ('.,  .1.    A.    v.,   and    N.  C.  were  not 

10.  Trustee -Certiorari  will  not  He  to—  authorized  to  remove  the  school  house  from  its 
It  is  a  fatal  objectitm  to  a  writ  of  <•(  rliorari  that  site  in  the  manner  mentioned.  That  defendants 
it  is  not  addressed  to  parties  having  judicial  having  subsecjuently  abused  their  right  to  enter 
functions  to  perform,  and  a  claim  to  exercise  upon  the  lands  of  the  cor[)oration  liy  an  uvcrt 
the  office  of  School  Trustee  cannot,  therefore,  act  of  spcdiation,  the  plaintiffs,  who  are  a  cm]'"' 
be  testeil  by  tlds  writ.  rate  body  and  are  identical  with  the  corimratioii 

Lire  AsKHHxmtntof  Caniiiron,'!^^..  &(!.,  177.    which  existed  at  the  time  of  the  trespass,  cm 

maintain  trespass  against  the  defendants  for  the 

11.  Trustees  OfSChOOlS-Dlsmlssal  Of,  and  injury  done  to  the  corporate  property.  Ita 
appointment  by  Commissionevs— Two  of  the  when  an  action  is  brought  in  the  name  of  a  ^"f- 
defendants  and  another  were  duly  elected  poration  without  due  authority,  it  is  not  snth- 
School  Trustees  in  October,  1873.  In  Decern-  cient  for  the  defendants  to  plead  that  the  plain 
ber  the  defendants,  without  the  concurrence  of    tiffs  di<l  not  legally  constitute  the  corporatioiw 


12+1 


SEA. 


1242 


liiii  ill  Miurli  ii  cMst!  ilcfuiidaiits  oiiglit  to  ajjply  to 
till'  MUiiiiniiry  jiiri»iliutii)ii  of  tli<j  Court  to  stay 
piiMi'i'dings. 

I'irtoH  School  Trustfi'H  v.  Cameron, 

2S.  C.  R.,tt90. 

I'i.    Trustees   of    school,    liability   on 

agreement-  H.  L.,  onu  of  tliret'  SulioolTrustft's, 
tiiiitiacteil  with  tlie  othei'  two,  M.  MoL.  tiiul  .J. 
M.,  wiio  iluMcril)U(l  tllulll^4elvell  as  " 'I'runtee.i  of 
.Sulidiil  Section  No.  .5'i,  S.  ,S.  IJoulaidiiiiu,"  to 
liiiilil  a  suliool  liousu,  and  tlie  agreeniunt  con- 
tuiiii'd  tlie  following  clause:  "The  afore-tuid 
.\I.  McL  and  J.  M.,  as  TrusteeH  for  the  school 
.section,  do  hereby  l»ind  themselves  to  pay  tlie 
afdiesaid  If.  L.  the  snni  of  $1(5(1,"  itc,  &c.  The 
agioeiuent  wiw  signed  hy  all  three  Trustees,  not 
.SL'iik'd,  and  the  word  "  Trustees  "  was  wi'itten 
oppipsite  tlie  names.  H.  L.  having  hrought  his 
action  against  the  other  two  Trustees  person- 
iillv,  I 

H>>ld,  reversing  tlie  decision  of  the  County 
(  "iMt,  that  the  defendants  were  not  personally 
liill.ie. 

LiriiniMfoiK:  V.  Schoo/  Ti-nstits,  lioiilanlarii:, 

I  K.  &(;., ,-).'},-).  i 
13.   Trustees,  personal  liability  of- The 

liijiird  of  Trustees  of  Lunenburg  Academy,  by 
agriiiiiuiit  among  themselves,  ordered  through 
pl.iiiitiff,  a  iiieniber  of  the  Hoard,  from  a  party 
in  Mosion,  U.  IS.,  furniture  for  the  Academy. 
The  ]iur.-ioii  from  whom  the  furniture  was  pro- 
cuiuil  forwarded  it  to  plaintiff  and  drew  on  him  ' 
for  liie  amount.     Plaintiff  advaiiceil  S|<)0.4l'  to; 
niielthu  draft,  and  delivered  the  furniture  upon  I 
the  ii:*8urance  that  the  sum  so  advanced  would  | 
he  lepuid    to   him.      The    amount    re(|uired    to 
lii|ui(lii.te  the  bill  was  assessed  upon  the  section 
iinil  collected  to  the  extent  of  SiI4(i.()(»  by  defeii-  , 
'lint,  ii  Trustee  and  Secretary  of  the  Hoard,  but 
iil'liiifd  by  him  to  other  uses. 

//'/'/,  that  defendant  was  liable  for  the  sum 
"(•"•IW,  "it  being  money  assessed  and  collected 
i"iil  in  his  hands  for  the  very  ])iirpose  of  liijui- 
il'itiiig  tjiis  demand." 

•J'<o,  that  there  being  no  plea  in  abatement, 
the  objection  taken  at  the  argument  to  the  iion- 
Ji'iiiili'V  (if  the  co-trustees  could  not  avail. 

Wilkina,  J.,  dUienJin;/. 

Zirirbn-  V.  Zink,  •>  N.  S.  IX,  '-"J I 


otherwise,  for  the  purpose  of,  I'tc,  ami  for  any 
other  necessary  purpo.se.  Section  .S7  retpiired  the 
Trustees,  upon  the  rei|uisition  of  a  majority  of 
the  ratepayers,  to  convene  a  special  meeting  of 
the  ratejiajers  for  the  purpose  of  voting  money 
oi-  adding  to  any  amount  previously  voted.  At 
the  annual  meeting  of  School  Section  'J'.t  the 
iiKuiey  required  for  schools  was  not  voted,  ami 
the  meeting  instructed  the  Trustees  tr)  call 
another  meeting  for  the  puri)o.se,  which  they 
did,  but  acted  under  the  impression  that  the 
iiH.eting  must  be  calleil  under  a  leijuisition,  us 
provided  by  sec.  T,.  The  matter  was  brought 
up  by  rerHornri,  and  a  rule  )(/.m'  taken  to  set 
aside  the  assessment,  the  affidavits  on  both 
sides  being  drawn  on  the  assumption  that  the 
meeting  could  only  be  called  under  section  37, 
retjuiring  a  re(|uisition  from  a  majority  of  rate- 
payers. 

Hi  hi,  that  no  such  reijuisition  was  nece.s.sary, 
that  the  Trustees  could  call  the  meeting  of  their 
own  motion,  and  that,  whether  the  itMiuisition 
was  signed  by  a  majority  of  ratepayers  or  not, 
the  action  of  the  meeting  was  legal  and  valid. 
Ill  re  Si'hool  Sec/ ion,  Xo.  .."■>,  ',\  H.  &  C,  'JOT. 


I 


SE.4. 

1.  Boundaries  or  water  lot -The  grantee 

of  a  water  lot  iHUinded  on  the  shore,  is  entitled 
to  take  up  to  high-water  mark  ;  and  that  line  of 
his  grant  changes  with  the  gradual  encroachment 
or  retirement  of  the  sea. 

ICmoii  v.  Mayhirry,  I  Thorn.,  (1st  Kd.),  144; 

{•-'nd  Kd.),  IH(). 

2.  Crown  cannot  grant  navigable  arm  of 

— The  Crown  cannot  grant  the  waters  of  a  navi- 
galile  arm  of  the  sea,  so  as  to  give  a  right  of 
exclusive  fishing  therein. 

Mi'isiier  V.  Faniiiiiij,  ■_'  Tliom.,  !»7. 


3.    Urant  of  sea  shore   by  Provincial 

Government— Title  held  not  to  pass— Plaintiff 
received  a  grant  from  the  Provincial  (Joverii- 
ment  of  the  shore  of  a  narrow  cove  or  creek  at 
St.  .Margaret's  Hay.  The  cove  or  creek  was  one 
I  of  a  number  of  small  inlets  abounding  on  the 
shore  of  the  Hay,  not  having  the  name  or  char- 
acter of  a  public  harljor,  but  had  been  iiseil  on 
several  occasions  by  small  vessels  for  the  pur- 
»■    Trustees -Power   of,    to   call    special    pose  of  loading  lumber. 

meeting-Section  34,  sub-section  8  of  the  chap-        ^,7,/_  „„  n.e  authority  of  Holmnn  v.  (h-teu,  (i 

I"  of  Public  Instruction,  4th  R.  S.,  cap.   32,    s.   C.   H.    707,  that  no  title  passed  under   the 

■"■•■'viiled  that   it   shouhl    be   the   duty   of   the   grant. 

Inistees  to  call  a  special   meeting  of  the   sec-  :  Fader  v.  Smith,  6  R.  kV,.,  433; 

"»",  due  notice  being  ^iven  by  the  school  or'  6  C.   L.  T.,  536. 


1243 


SESSIONS. 


124+ 


4.    The  oHiier  of  land  on  the  sea  shore  <»r  I  NESSH>>S. 

on  a  ii.iviuiihU'  ii\«.'iis  iniitk'il  lo  fife  inyrusH 

im.l  fjiivMs  tiuTftci  mill  tiifiviVcmi.  1.    An  Order  of  Sessions  Tor  removal  (if  a 

//(/(/,  thai  lU)  leiijitli  lit'  tiiiii'  .lining  wliiili  dc-  |iiiii|ifr  ymiiteil  ujm.m  iiimillicRiit  groumU,  .ni- 

liisiuiiiil    acts    of    nlislniiii..ii    wtiv    laMiiiimMl  ii.ii  lio  NustiiincMl  liy  allidiivils  <if  fiuls  oinitt.il  tc 

would  tli'liar  him  "f  xUosv  ligiitB.  I't'  vtritif.l  lirfoif  the  ..nl.r  i)ii»sf.l. 

Colliii'<  V.   /.'ric-s  -2  TIkhii.,  •-'Si.  Ilnriifiliy  il  (il.  v.  Hiii'iliin-  <'  ill.,  .Jaiiits,  ;;(Mi, 


SEAL. 


1.    Ureal  Seal  of  Provlnee  -  The  old  tireat 

Seal  of  ilu'  I'lovimc,  that  in  use  siiiLC  ls;{7, 
used  on  piitentH  appointing  Queen's  (."ounsel  and 
rfgulaliiig  pii'cedeiKO  at  the  Har  in  1>S7(J,  ceased 
to  lie  the  Croat  Seal  of  the  I'lovinco  on  the 
transmission  of  ii  new  <lreat  Seal  to  the  Lieu- 
tenant-(;ovcinor  in  Dccemher,  IS09,  though  not 
adojtteil  or  judclaiined  hy  the  Lieutenant- 
(iovemor  in  Council. 

In  re  Pn.cidi  iifi  of  llih-hii,  (J.  C, 

•2  H.  .t  v.,  4.-)0. 
Set  BAKKISTER-AT-LAW,  -i. 


•2.   School  rates    Collection  of- ExrhiHJoii 

of  female  ratepayer!*  —  Keiilevin  will  imi  Uv 
against  a  coiistalile  for  property  seized  iiy  liini 
under  a  warrant  of  distress  for  the  imu. pay- 
ment of  school  rates,  under  Revised  Si.ilutts 
(second  series),  c.  W,  sec.  H»,  although  mrIi 
warrant  be  defective  in  not  reciting  tiiat  the 
collector  had  made  the  oath  reipiired  to  !"■  iiia.le 
previous  to  the  issue  of  such  warrant,  whirli 
oath,  however,  had  in  fact  been  made. 
'  I'd-  Young,  ('.  J.— The  only  remedy  in  su'li 
a  case  is  by  r,r/iornri,  or  a])peal  to  the  Sessjcuis, 
A  8ch(H>l  rate  is  not  viliateil  by  the  exclusjcm  ,if 
female  ratable  inhabitants  from  voting  against 

the  rate. 
i  M<(lr<u<>i-  V.  rnttif^un,  1  ()ld.,'Jll. 


2.  Of  corporation— 

3.  Want  of,  on  writ- 


sv  CORPORATION. 


See  PRACTICE. 


SEAMAN- 
Su  SHIPPING. 


SECURITY  FOR  COSTS- 
Set  COSTS. 

SEDiCTION- 
See  HUSBAND  AND  WIFE,  3&4. 


SERVANT- 
See  MASTER  AND  SERVANT. 


SERVICE- 
Set  CONSTRUCTIVE  SERVICE -PRACTICE. 


3.  The  Commissioners  and  Sessions  can. 

not  lay  out  a  road   substantially   diflerent  ficiii 
that  petitioned  for  by  the  freeholders. 
i  (,>i«'«  V.  Chi/iinHH  et  a/.,  '2  Thorn.,  \W. 

4.  Three  magistrates,  forming  a  part  uf 

the  Court  of  Se.ssions,  by  whom  the  return  oi  .t 

precept,  issued  under  cap.  O'J,  of  the  Rev.  .'^tats,, 

for  laying  out  a  road  is  to  be  decided,  are  ii"t 

the  three  disinterested  freeholders  conteinpliittil 

by  that  Act. 

Quieu  V.  Chi/iman, '2  Thorn.,  •2'.i± 

5.  When  the  General  Sessions  conflrmcd 

the  proceedings  to  establish  a  pent  way  whiili 
had  been  duly  laid  out, 

Httd,  that  before  such  way  could  be  used  the 
proprietor  of  the  land  through  which  it  nuis 
must  be  paid  damages  awarded  to  him  hy  'I't 
jury  who  have  assessed  the  same. 

Cameron  v.  McLean,  2  Thorn.,  S'-'ft. 

6.  Where  the  grounds  of  an  appeal  from 

an  assessment  are  simply  matters  of  detail,  the 

appeal  should  be  primarily  to  the  Court  uf 
j  Sessions  and  not  to  the  .Supreme  Court.  The 
i  Court  of  Sessions  has  power  to  set  aside  a  whole 

assessment  where  it  manifestly  appears  tlwt 
',  it  has  been  irregularly  and  therefore  illegally 

made. 

In  re  Aii)<e.i>imenl  School  Hate,  Sec.  4~,  Anti!ioni'<h, 
I  3  N.  S.  l>..  '--• 


124.- 


8EWER.S. 


1246 


set-off. 

\.    Acll(>n  fiir  half  liitercMt   In  horse 

Ri^jht  to  oH'Het  exjjenat'H  paid  on  account  of 

hor«e-  'I'll  a  clecliinitioii  liy  |iluintiti'  tnr  the 
piiic  ot'  niit'  liiilf  intt-ri-Ht  ill  H  liiii'Hi'  iillcgi'd  to 
liaM.'  lift'ii  Null  I  l,y  pliiiiilitT  to  ilctViiilant,  plaint  ill' 
iitiiiiiiiijj!  the  ntiicr  half  inlciust,  iliffinlaiit 
liltiiilcil  iiliiDiig  (itlier  plcaM  a  mcI-dH'  for  the  ki'cp 
,iMil  1  iiie  iif  tlie  hnisc  anil  t'X|)fiist'.s  cipniiccti'il 
wilh  taking  Ihi'  lioi'sc  to  ami  from  'riiiio  while 
the  joint  iiwiu'ixhip  lastcil.  'I'lic  Juilgc  of  the 
Ciiunty  Court  nileil  that  ikfenilant  coiihl  not  otf- 
si'l  liin  account,  as  that  would  lie  uH'seltiiiij!  a 
|iiiiini  rship  matter  ilepemling  upon  an  adjiist- 
n.enl  of  aceuunts  lietween  the  parties,  plaintill'.s 
iliiiiii  licing  for  prii]ieity  liruiiglit  into  the  part- 
iitiship. 

H'/il,  that  the  rejection  of  the  setoll'  was 
wriiiij.',  and  that  llie  judgment  lielow  luusl  lie 
iiversed. 

MrDoimhl  V.  l'oin,\  .S  K.  vt  ('.,  ;{4(<. 


i.    Ilefendant  cannot  oust  Jurisdiction 

to  try  a  claim  involving  no  question  of  title 
by  pleading  set-off  involving  such  question 
-Appeal   to   Supreme  Court   in  such  case— 

WJRie  a  ("iiurt  has  no  jurisdiction  to  try  a  ([ues- 
lidii  of  title,  ilefendant  cannot  oust  the  jurisdie- 
linn  to  entertain  a  claim  involving  lui  ijuestimi 
(if  title  liy  pleading  a  set-off  that  involves  .i 
i|iiestion  of  title. 

An  action  was  brought  in  the  Magistrates' 
Cuuri  and  judgment  given  for  plaintiff.  Tlu: 
L'dunty  Court  Judge,  on  appeal,  decided  thai  the 
iiufstion  of  title  was  involved,  and  the  Court 
w;is  therefore  "excluded  from  jurisdiction."         i 

Hi  III,  that  an  appeal  lay  to  tlie  .Supreme  Court 
from  the  decision. 

Cri-iijhtoH  V.  LiiKUny,  3  K.  &  (i.,  24;i 

3.  Judgment  recovered  by  third  parly 

after  commencement  of  action  and  assigned  to 

defendant — To  an  action  on  a  promissory  note 
iltfemlant  pleaded,  by  way  of  set-off,  a  judg- 
ment for  a  greater  amount  recovered  against 
pliiintiff  by  a  third  party  and  assigned  to  de- 
icniliuil  after  the  commencement  of  phiintiff's 
action. 

Hild,  that  the  plea  was  bad.  Kven  if  plead- 
:Ale  the  plea  could  only  be  to  the  further  main- 
teiiiURc  of  the  action,  and  not  in  bar  to  the 
whole  action. 

.\siiuniiiig  the  assignment  to  have  been  made 
m  good  faith,  ilefendant  might  possibly  have  got 
ilie  benefit  of  it  on  application  to  the  Court  in 
ilie  exercise  of  its  eijuitable  jurisdiction. 

McDonald  v.  Ntville,  4  R.  &  G.,  191. 


4.  .Money  due  by  a  member  of  an  aHso* 

ciation  cannot  be  set  off  against  money  due  to 
the  Association  —  I'hiintitl's,  an  incorporati.d 
.Marine  Insurance  Associalion,  paid  a  sum  of 
money  into  the  defendant  Itank  to  indemnify 
the  latter  for  guaranteeing  payment  of  costs  of 
an  appeal  |)eiiding  in  the  Kiiglish  Admiralty 
Court.  The  appeal  iiaviug  been  decided  in  the 
plaintiff's  favor,  the  defendant  liaiik  repaid  all 
but  one-fortieth  of  the  amount  ilepo.sited  with 
them,  and  claimed  the  right  to  set  off  against 
the  amount  retained  as  being  the  share  of  one  of 
the  nieniliers  of  the  .Association,  u  delit  due  tlie 
bank  by  such  member.  The  bank  having  pre- 
viously acted  throughout  the  transaction  in  sueli 
a  way  as  to  show  that  their  intention  was  to  deal 
with  the  members  of  the  Association  collectively, 
and  the  money  having  been  paid  in  to  the  credit 
of  the  Association, 

III  III,  that  the  plaintiffs  wen;  entitled  to  re- 
cover. 

StiJoii  1 1  III.  V.  Tin  Ml  nliants   liniih, 

•i  H.  &  <;.,  113. 

5.  riea  of- Defendant  pleaded  a  set-off 

to  jilaintiff's  chiim  fur  goods  soM  and  delivered, 
and  under  that  plea  gave  evidence  of  a  sale  of 
goods  to  plaintiff  by  the  defendant  and  his  co- 
I)artiier,  and  an  agreement  made  between  plain- 
tiff, ilefendant  and  defendant's  co-partner,  that 
jdaintiff's  claim  should  be  paid  in  goods  fioni 
the  partnership  store.  The  County  Comi  .Judgo 
gave  judgment  for  defendant  on  this  evidence, 
and  the  appeal  from  his  judgment  was  dismissed 
with  costs. 

Ci-omhir  V.  dniin,  '2  R.  &  (J.,  370. 

6.  Replication  —  Where  no  replication 

had  been  put  in  to  a  plea  of  set-off,  and  one  Inul 
been  tendered  at  the  trial. 

Hi  III,  that  the  .1  udge  ought  to  have  received  it. 

V"«"v,  if  a  replication  is  necessary  to  such  a 
plea. 

Toliin  V.  Dmn,  '2  Thom.,  4(>2. 


SETTLEMEXT- 
Stt  BAST.iKD-POOK  I.IW. 


SEWERS. 
I.    Commissioners  of  Sewers— Appoint^ 

ment  of —  Plaintiff  and  defendants  were,  by 
commission  from  the  Lieutenant-Governor,  ap- 
pointed Commissioners  of  Sewers  for  the  Town- 
ship of  Falmouth.     Plaintiff  had  been  selected 


1247 


SEWKRS. 


124H 


l,y  iMopri.'t-.rH,  n-prfHci.tiiigtwotl.ir.lM  in  ii.t.T-  l.ut  from  nTuiving  wattT  from  llu-  City'^  «  itiT 
est,  Commi.-iHi.ii.cr  of  the  vilUgf  dyki-.                   !  work«   until  a  Huitiil.i«  .Iniin  w.w  .jon..triKir,|. 

H.lil,  thiit  pluintitl'  aloni'  fould  maintain  an  tin-  i-vi.li'nco  Hliowing  tliat  the  introiliictlon  „f 

at'lion  against  .ll■f.■n.lant^  altiiougii  at  tlir  tiinu  .sii.li  Niipply,  in  tho  a).«fnc.'  of  a  «uitalp|.>  .Iriiii, 

of  liiA  Hfloction,  an.l  when  the  work  wan  ilone.  occasioned  an  overHow  on  piaintiH«  prtMiiiH... 
.l.'fendantH  were  name.l  with  liini  in  the  execu-  .'/""  v.  lUmiM,  H.  K.  D.,  I.TV 

tive  connnis.Hion. 


Conxtruction  of  Urd  II.  S,,  c.  7'i, 


KiKht  to  maintain  dralnii  leadlnv  n-oni 


l)ar„hou  V.  La,n:uc.  '.'f  al.'\  N.  S,  I).,  :«.    Private  property  to  drainH  on  tlie  public  high- 
way-Liability of  Municipality  for  negligeniie 
.  „  _  of  surveyor  of  highwaya  -Obligation  of  Muni- 

a.   I'ommlssloners  of  Sewers -Presuinp.  ^.^^j.^^  ^^  ^^^^^^^^  private  rights-Remedy 

tion  as  to  appointment    3rd  R^S..  e.  7^8.  ^^-  ^^^j^tory  injunction   -  I'laintitV  was  tia. 

Eflect  of  not  being  sworn  into  oftce-la.nt.ffs  ,    „  .^^,„,  ,„.  ,,^,„,  ^,,,i^,,  f,„,  „  ,,„,.iod  of  thirty 

a«Con.missioner.s..f  Sewers  for  the  district  of  I  ^^^^^    ,^^^^^     j^,^^.^^^^j    .^^^^^    an  open  drain 

K  &  M.,  bronghl  acti.m  against  the  defendant  ^^^^,^„^j  ^^^  _^^^^j  ^..^,^.^^  ^,^^  ,.,,,.^^  ,,f  ^,^^  j,,,,,,,^. 

for  certain  .lyke  rates  assessed  on  the  owners  of ,  ^.^  ,^,„i  ^,,^.„^,^.  ,     ^  ,„,.,,.„,  ,i,„i„  „,,„,, 

nuush  lands  in  thai  district,  for  constrnctmg  ^,_^^  |^.^^^^^,_^^.  ^^^  ^^  ^.^,^^,      ,,,,^^  .lefendanfs  sur- 

and  repairing  necessary  dykes,  etc.     Defen.lant  ^^^^^^^^^  ^,^^_             ^^^^^.^^  ,^^,  ^„„,.^,,,i„j,  |, 

i>l<.HiU'i1  tliiLt   itlaintitfs  were  not  (  oinmissioners ;  .    •'  ,    i     .  i-  i  i  .1 

plcadui  in.u  piaimui.i  «d  I  i  into  a  covered  dram,  which  was  no  larger  tiiiiii 

of  Sewers  for  that  district.      1  he  Act  regulating 


one  of  plaintiff's  drains  running  into  it.  As  tiiu 
result  of  the  change  two  of  plaintiff's  drain* 
were  entirely  stopped  up  and  the  drainage  nf 
his  house  and  land  seriously  impaired. 

//(A/,  that  a  sullicient  prescription  was  provcil 
to  entitle  plaintiff  to  the  use  of  the  open  dniiii, 
either  as  against  the  Crown  or  a  private  pcrsmi, 
for  the  purpose  claimed,  consistently  with  tiii' 


the  appointment  of  such  Commissioners  pro- 
vided  that  on  being  appointed  tliey  should  be 
sworn  into  office  by  a  .lustice  of  the  I'eace,  and 
that  such  swearing  should  be  entered  in  the 
Connnissioners'  book  of  record.  It  ai)i)eared 
that  only  one  of  the  plaintiff's  had  fidtilled  this 
reiiuirenient,  but  all  three  had  acted  as  Commis- 
sioners for  several  years.  '    .^^^^  J^  ^jj^       ,^.^  ^^  ^,^^.  „,„,y^tricted  u.sc  of 

Hehl,  that  in  thus  directing  as  to  the  entry  of  |  ^_^^^__^^^^^  ^^^  ^^^^,  c.rrespon.ling  right  U, 

the  swearing  it  was  not  intended  by  the  Leg.s-    ^^^^^^  ^^^^  efficiently  upheld, 

haure  to  shut  out  all  other  proof  of  ,,ual,t,cat.on.  !  ^^^^^^  ^^^^^^  .^  ^^,_^^  inound.ent  upon  defendutu. 
an.l  that  there  was  sufficient  evidence  aside  from  ]  ^^^  ^,_^^^^.  ^,^^^^  ^,^^_  ^_^^j  ^^^.^^^^  ,,^.  ^,,^„,  ^.„,,j,,  ,,,„ 
this  to  atTord  the  presumption  that  the  plaint.rts  j  j^^^^,^  ,^^^^^  efficiently  secured  without  trenciiiiig 
were  legally  appointed  and  duly  authorized  to  I  ^^^^^^_^  plaintiff's  rights. 

act  in  this  assessment  ,  ^,     ,    ,.     „ ,!      .lAo,  that  under  a  prayer  for  the  decree  t. 

nakvr,lal.y.Mctarlan,,'2^.^.h.,\>i.    ,,^,^^^^^^^^   ^^,,,,   reconstruct   the   said   drain  0, 

;  gutter,  and  said  drain  under  the  highway  iif'nu- 

3.  NegllKCnCC  In  regard  to  drain  —  I  jj.ij.i^  s„  tlmt  it  „.ill  drain  the  lands  of  the  philn- 
Where  plaintiff's  horse  was  injured  by  falling  '  ^jj^- jj,  .^^  fj,ii  ,^,„i  ,i,„j,iu  ^  manner  as  it  did  lie- 
into  a  deep  uncovered  drain  by  the  side  of  a  f„i.e  the  grievance  complained  of,"  plaintill' was 
road  in  the  suburbs  of  the  City,  I  entitled  to  a  mandatory   injunction  to  rcstoiv 

Hc/(/,  that  the  drain  being  proved  to  be  well    j,i,j,  ,.„  ^^^^  condition  in  which  he  was  lieforc  tla- 
constructed,  and  of  a  kind  (uncovered)  usual  in  |  g,.ievances  complained  of  took  place, 
the  suburbs,  the  City  was  not  lialde.  McDonald,  C.  .).,  <littiiiiin<j. 

Mai-kinlay  v.  Thf  City  of  Ilalijax, 

•2  R.  &  C,  30,-) 


JeiDiisoii  V.  Mniiirijialih/  0/  Eaxt  U(uiti, 

6  R.  i^C'.,  71; 


4,    Restraining  from  permitting  waste  I 

water  to  flow  on  plaintiff's  property,  &c.— 
Where  the  ('.efendant  had  iio  drain  leading  from 
his  premises  to  the  common  sewer  on  the  street, 
and  the  plaintiff  prevented  all  access  to  a  drain 
on  his  own  property  through  which  the  water 
might  flow  to  the  sewer  from  defendant's  prop- 
erty, but  defendant  proved  no  title  or  right  to 
use  such  drain,  the  Court  granted  an  injunction 
to  restrain  defendant  not  only  from  permitting 
his  waste  water  to  flow  on  plaintiff's  property. 


H  C.  L.  T.,  Ul. 

6.    The  Provincial  Act  of  1873,  c.  14,  s.  1, 

empowered  the  Board  of  Commissioners  of  City 
Works,  under  the  sancti.m  of  the  City  Coiuicil, 
to  oriler  the  construction  of  a  sewer  alniig  any 
street,  without  the  re(iuisition  of  owner.-'  of  pro- 
])erty  along  the  street,  and  the  Acts  of  1^74,  i'- 
,3-2,  s.  1,  provided  that  upon  the  petition  of  iialt 
the  owners  of  property  on  any  street,  ami  tiie 
deposit  with  the  City  Treasurer  of  certam 
amounts  chargeable   under  the   Act,   the  Cit) 


1241) 


SHKKIFF. 


12o0 


I  oiiiK'il  hIiiiuM  iikU'I-  II  Mwcr  til  III'  inn-.|iui  tnl  wuH  ui'ifpt.'il,  mill  llic  I'.i.unl  i<(  Work.*  iiiitlKH  • 

iiiili'Kh  fiir  nutliciuiil    iijiisciiiN    to   tlif   oiiiitraiy.  i/fit  to  ciiy  it   into  iH'iti,  Inn   tluj  toinlfi   uikI 

Hie  Aft  iif  1.S74  filltliiT   ii'|ii.'iili'il  a  .■.t'l.tiiiii  (if  coiitiiicl   liiiri'  d.iic  it'.M|KMti\cly  .Imii'   l,")tli.  ami 

tlifAot<if  IH7:»  mill  Hiilistitutcil  thciffor  ii  .•..■.■■  .Inly  •.'n,l,  |h74.     'I'Ik.  .Hiiit  \vii.s  iiistitiilnl  iiihIit 

ti |iniiitiiii{  out  tlif  iiiuniirr  in  MJiich  tin'  in»t  llic  Act  nt'   |.s7;i. 

„f  cnii^lniftion  Nhnnlil  Kc  Imhui',  ami  |)n>viiling        //.///,  alliiniing    the   ileoisjiui  nf   tlif  ('lunity 

ihiit  all  MKini'yn  eJiiiiufaMi!  to  propuity  ownuiM  Comt,  that   tlierc  wure  no  ac(|iiiicil  rijjtlits  mi 

lauliT  that  Act   nIii.iiIiI    licconic   iliif   from  the  the  part  of  tin- City  a^ain.-it  the  ilcfcmlanl  iimlei' 

.iiiliT  III'  rc'soliiliiiii    to  coiihtiiu't  a  ni'W  ni'Wlt,  llio  Ai't  of  I,s7;j,  unil  that  liic  A.l  of  l,H7;t  hav- 

ulu'tlirr  such  ML'WiT  had  lii-un  putilionuil  for  or  iiij;  liccn   rcpcaU'd,  the    pliiiitill'  iniiM    Kc  noii- 

ii'li'i'i'il  liy  the  Coiiiicil  for  thu  ht-nufit  of  tlii'  xiiiti'd. 

( ity  without  pt'titioii.     The  owners  of  property  T)i<  Clfi/  <,/  llalijux  v.  Kiln;,, ■•I,-,,  H  It.  \  C.  |()4. 

..Ii  Sdiilh  Park  Stii't'l   applied   liy  petition  for  a 

wHir  fiiiiii   X'icidiia    Itoad   alon^'  South    I'lirk 

.vrcel   to   hiKlis   Street,    4S(I  lineal   feet.      The 

I  ilv  I'llinineer  reported   upon  the  |)etitioli  fliat,  , 


iliiiiili'r  to  provide  a  proper  outlet  for  the  pr 
iHiii"!  sewer,  it  would  lie  neeessary  to  Imild  M,")(» 
liiii'iil  feet  down  Iii^jlis  Street  ;  up<iii  which  the 
C'lmicil  passed  a  resolution,  "that  tiie  petition 
■  if  llie  ratepayers  in  South  I'ark  Street  and 
lii.;li»  Street  for  the  construction  of  a  sewer  on 

'''' 

Kiijliieer  thereon,  lie  received  and  adopted,  and 
tliiil  llie  Itiiard  of  Works  he  reiiuested  to  have 
'iidi  sower  constructed."  The  sewer  was  con 
•mictwl,  and  a  suit  hrought  aj,'ainst  defendant, 
nh'i  lived  on  Inglis  Stieet,  for  his  portion  of  tin 
•tsiif  eoiisiructioii  on  Inglis  Street 
ll'lil,  that  the  Council  had  power  to  order  the 
"iHtiiict.lon  of  a  sewer  on  Inglis  Street  without 
iiiy  |iititioii,  to  the  cost  of  which  property 
■«i;miiii  Inglis  street  were  hound  tocontrilnite, 
iii'hluit  the  resolution  might  he  legarded,  Krst, 
IS  iuitlinrizing  the  construction  of  a  sewer  on 
>'''ath  i'luk  Street,  in  comiilian  'O  v/ith  the  peti 


SIIKKIFF. 

1.  Action  ngnlnst  PlnlntllTliavIn;,' recov- 
ered judgment  against  his  delitur  placed  an  exe- 
cution in  the  Slieiit!"s  hands,  with  instructions 

:<l  s>r..l.,    together  with   the    report   of   the    '"'l'"'^^"!  "•  l^'^T' '■' H'f  g-ods  of  the  del.f.r,  and 

1 1     .       .      ,        ,     ,  .         .    fi'r  want  thereof  to  take  his  liody.     The  Siierit!" 

returned  "  no  goods,"  hut  did  not  take  the  liody. 
Tlie  residence  of  the  judgiiR'nt  dehtor  was  with- 
in the  liailiwick,  and  there  was  nothing  to  show 
whether  he  was  or  was  not  actually  in  the  liaili- 
wick while  the  execution  was  in  the  SheritT's 
hands. 

//'/'/,  that  the  iilalntiH"s  verdict  in  an  action 
against  the  Slieritl,  taken  hy  consent   for  nomi- 
nal damages,  must  stand. 
Wilkins,  .T.,  ili.i.iiiitiiii/. 

'Hiorjn   V.  MrL<nn,  L>  R.  &  C,  'JtMi. 

2.  Action  asalnst-  Execution  of  writ  of 


ti'niif  the  projierty  owners  on  that  street,  luid 

wmilly,  as  iiu  order  emanating  from  the  I  attachment  —  Abandonment  of  seizure  — 
'  midl  itself  for  the  construction  of  a  sewer  on  :  Estoppel  — A  writ  of  attachment  against  the 
l:.lisStrL.t.t,  irrespective  of  any  petition.  ;  goods  of  M.  in  the  possession  of  S.  was  phiced 

''i'  Ciiii  of  Haiij'ax  v.  .SV(.-/o«,  3  H,  &  C,  L'4,').  |  '•>  t''e  Sherift"'s  hands  and  goods  seized  under  it. 

j  After  the  seizure  the  goods,  with  the  consent  of 
.  '  the  plaintifl's  solicitor,  were  left  by  the  Sheiitt' 

'■Tie  Sewerage  Act  of  1813,  cap.  14,  in  charge  of  S.,  who  undertook  that  the  same 
I  I  '"led  that  where  two-thirds  of  the  rate-  should  be  held  intact.  The  Sheriff  made  a 
l")«sin  any  street,  &c.,  should  petition  for  a  ,  return  to  the  writ  that  he  had  seized  the  goods. 
rf»':r  the  same  should  be  constructed,  ami  that  i  The  Sheriff  subseiiuently  sold  the  goods  under 
l:|f'iurth  i.f  the  cost  should  be  paid  by  a  spe-  '  execution,  but  paid  the  proceeds  over  to  other 
'■■.'las.<essnient  on  the  owners  of  real  estate,  &c.,  '  creditors.  In  an  action  against  the  Sheriff, 
h-hwssnient  to  be  immediately  jiayable  on  the  |  Held,  reversing  the  judgment  of  the  Supreme 
|-'9|tomn„fthesewer.  The  Act  of  1874,  pas.sed  ^  Court  of  Xova  Scotia,  that  the  act  of  leaving 
|-\Wti,repealedthe.seprovisions,  and  provided,  the  goods  in  the  possession  of  S.  was  not  an 
r|  where  (niehalf  the  owners  of  property  on  abandonment  by  the  plaintiff's  solicitor  of  the 
L  *^'"'^\  *''••  petitioned  and  deposited  the  seizure,  ami  if  it  was,  the  Sheriff  was  estopped 
I  TOs  chargeable  according  to  the  Act,  the  by  his  return  to  the  writ  from  raising  the  (lues- 
Ip  *"  "'"'"■'1  -^x'tler  a  drain  to  be  constructed.  \  tion. 

I  '^ iminaiy  .steps  having  been  taken  for  the  con-  ,  Held,  aha,  that  the  fact  of  the  plaintiff's 
|:Ad'T'>>  '^  ^*^^*-''''  ^'^^^  I'efeiulant's  property,  ;  solicitor  acting  as  attorney  for  S.  in  a  suit  con- 
I-pri  '-nd,  1874,  the  report  of  the  engineer  I  nected  with  the  same  goods  was  not  evidence  of 
■  40 


12:)1 


SHERIFF. 


\'2:>i 


an  inti'titiiiii  m  iliHi'iintiiiiii)  pripot'i'ilini^n  uniler 

till'  llltllrlillicllt. 

OiijI'iiM  V.  Cniijli/oii,  not  II  I'lu-liil  lii/iiir, 

14  S.  V.  K..  74(1; 
7('.  L.   T.,  MNlt. 

.1.    Action   b),   «m    bttnil      IMiiinllfr,    nn 

Sliciitr  >if  till'  Coiiiity  iif  AiniiiiH'liM,  hiumI  ihu 
(lircii;ljiii»H  Kii  II  jiiiiil  luiil  MuviTiil  liiiiid  of  in- 
(U'ni'iity  givfn  l<y  tlicni  to  indiimiify  liini 
iigiiinKt  all  loHXfK,  fic,  ini.'niTi'il  in  iL'spcil  of  tin.' 
Miilc  of  cfitiiin  jiropc'ity  tiikoii  liy  liiui  nndei'  ii 
writ  of  I'M'i  utiiiii,  isMiiid  on  ii  jmlnni  a  rci'ov- 
I'liil  liy  ilctVuiliuitH  iigiiiiist  W.  I'.  S.,  till'  iirop- 
tity  liiiving  lii'un  cliiinici  liy  l>.  !'•.  iiinltr  a  Kill 

of  Mill'. 

'I'lii'  jiro[)fily  having  lii'fn  solil  liy  iiliiiiitill 
iiniler  tlio  fxt'cntion,  bi-  wii«  mu'il  ly  D.  I!.,  iuul 
jiiilgincnt  I'L'coVfi'fd  iigiiinut  liiin. 

Till-  lionil  of  indi'innily  iviitcd  ;i  "liill  of 
wide,  diitud   the  day  of  AngU!<t,  1>SS:{," 

wliik',  liy  nil  anuiidnit'Ut  aftur  the  idinint'noo- 
tncnt  of  the  suit,  jiidgtiu'iit  was  recovered  <>n  a 
"hill  of  wale  dated  the  ha  August,  IS.Sl,  or,  in 
the  iiltenmtive,  tindir  iin  assignment  dated  on 
the  I'Jtli  .January,  IMM." 

The  eondition  of  the  liond  of  indemnity  hound 
the  deteiidants  "  from  time  to  lime,  and  at  all 
times  hereafter,  well  and  sutlieiently,  to  save 
harndess  and  keep  indemnified  the  said  .Sheritl' 
*  *  *  from  and  against  all  losses,  costs,  charges, 
damages  and  expenses  •  •  •  hy  reason  of ; 
selling  the  said  property  so  seized  ♦  *  •  and 
also  from  and  against  all  actions  *  *  *  or  any 
procedure  at  law  or  ii'  e-juity,  which  now,  <ir 
shall  or  may  at  any  time  lie  lirought,  connnenced 
or  prosecuted  rij.ditfnlly  or  wrongfully  against 
the  said  Sheriff  *     *     for  or  liy  reason  or 

means  of  the  selling  of  the  said  property." 

//i/il,  that  the  words  of  the  ciiiulition  were 
surticient  to  protect  the  plainlitl',  and  were  not 
controlled  by  the  words  in  the  recital,  in  such  a 
way  as  to  limit  the  liability  of  the  defendants  to 
a  claim  under  the  particular  bill  of  sale  therein 
mentioned. 

Ali'O,  that  the  recovery  of  the  judgment  in 
respect  to  the  matter  against  which  plaintitf  had 
been  indemnified,  gave  him  a  right  of  action, 
and  that  he  was  not  obliged  to  wait  until  pay- 
ment of  the  amount  of  the  judgment  had  been 
enforced  before  commencing  his  suit. 

Jjoiiuv't  V.  Kitchk  tt  al., 
20  N.  8.  R.,(SR.  &U.),  228; 
8  C.  L.  T.,  376. 


4.   Action  on  bond  conditioned  to  render 

defendant   to   Sheriff— Execution    placed    in 
hands  of  Sheriff  of  Annapolis  where  was  venue 


of  action— Held   properly  ito— Anieiulment- 
IndorMement  of  execution- The  on^,'iiiiil  plain. 

till',    who    dli'il    alter    the   eonmieneeMli'li'    iif  tlic 

suit,  the  action  being  lontiinied  by  IiIh  luhniniii- 
trators,  iHsued  at  .VnnapoliH  a  writ  of  r,i|iiiiii 
against  one  Cutler,  returnable  at  .\iiiiii|iii|j«, 
direitecl  to  the  Sheiill'  of  (,tueens  or  iiiiy  utlin 
.Sherill',  under  wiiieh  Cutler  wan  arresteii  hy  ihr 
.SheriU'of  Halifax  County,  in  his  bailiw  iilt,  nnil 
held  to  bail,  ilefendant  becouiing  Hiiicty,  ainl 
the  eondition  '>f  the  bond  being  that  Cutler 
nhoidd  be  relideicd  into  the  custody  nf  the 
Sheritl"  of  Halifax.  The  deelaiation  in  tluhiiii 
agaiiiHt  Cutler  was  on  a  bill  of  exilmiige  liruwii 
by  Cutler  and  others  and  dishonored,  with  pur- 
ticidiirs  ap|ilieable  to  such  a  count,  tugctiitr 
with  common  counts  laying  the  indeliteihiiNHiii 
Cutler  and  said  others,  but  after  issiu'  jniiu.l 
eonnnon  counts  were  added,  laying  the  iiiili'lii- 
edness  in  (.'utler  only,  and  particulars  iicciii'<l> 
ingly.  .ludgmenl  was  recove/ed  agiiiiist  Ciilin, 
and  an  execution  issued  diieeted  to  the  SIicmiI 
of  Annapolis,  in  the  usual  form,  but  witliniiimiy 
iiulorsement  especially  direciing  the  Shiiirt'  i" 
take  the  body.  No  executi.in  was  plineil  in  the 
hands  of  the  Sheritl' of  Halifax,  ami  lliu  Mifiirf 
of  Ainia])olis,  after  holding  the  exccutiiMi  si.\ty 
days,  returned  iioii  is/  liiniihiM. 

//'Ill,  that  the  execution  had  been  ]iiii|jiiK 
placed  in  the  hands  of  the  .SheriU'of  .Viiiiiiii-li* 
C()unty,  in  which  the  venue  in  the  original  iictiiii 
was  laid,  and  not  in  Halifax,  where  the  iini>! 
was  made  ;  and  that  the  objection  as  tn  tlie 
amendment  of  the  writ  could  not  ]ireviiil,  u 
there  was  nothing  before  the  L'ourt  to  sIiom  tk 
nature  of  the  debt  sworn  to  in  the  iillidavit  uii 
which  the  capias  issued,  or  that  the  plaiiililf  li.il 
not  recovered  on  the  declaration  as  originally 
framed,  but  that  in  order  to  enable  pliiiiitili'  vi 

'  bring  action  against  the  defendant  as  liiiil,  iiwrn 
should  have  been  placed  in  the  Sheritl's  Iwiil'. 

'with  instructions  indorsed  to  take  tiie  liuily  1 

the  principal. 

(lavaza  v.  «/«-•/•,  Ii  R.  &  C,  & 

1 

;     5.    Appointment  of  special  doput)    Toe 

appointment  of  a  special  deputy  or  iiaiiitl' I'y  i 

party  to  a  suit  discharges  the  Sheriff  fimii  'H I 

responsibility. 

[  Cochran  v.  Bd/,  3  N.  .S.  D.,  <!"••  I 

I 
I 

^    6.   Attaclinient  against-No  attachnidii 

can  be  issued  against  a  Sheriff  in  tiiis  Prfivia*  j 
j  for  not  bringing  in  the  body  of  a  party  whom | 
I  ho  has  enlarged  on  bail. 
:  This  was  a  motion  to  make  absolute  a  '«'j 
j  against  the  Sheriff  to  bring  in  the  bo'ly  »i  »| 
i  party  against  whom  a  capias  had  issued, 


•iy.\ 


SHERIFF. 


1254 


«liH  li.ul  lii'fii  fiilaixi  .  Iiy  till'  Shciiti  on  Kiiil.  iittinliiiiciit,  j^'cmmU  in  th,.  |)i,>Hc»Hi.iii  rif  tlic  plaiii- 

l^aliilit'iHirty  uIikIiikI  ln'ciiiuitMinl  iini|lii«l)iii'  titt,  t"  wIhuii  iluy  liml  li.m  tiiin»l'firfil  liy  tho 

li,i>l  iilihidiiih'il,  ulU't{cil  jilmLoiiiliiig  ililitcir,  iiuil  tlie  IniiiMti  r  uim, 

If'I'l,  tlmt  tliuniloudulilnnt  lie  niiulcaliNnluti'.  in  ii  Kiiit  liy  the  pliiintiU  iiniiinHi  tlio  SlicrilV  tor 

>Vm'-/.,  ai'tion  nonld  lio  uKanist  llic  Sli.TJtr  fur  tlif  iillr^cd  fiinvfriHiim,  iittiu'kt'il  hh  fniuihilcnt, 

tiikiiiL' iMMUIIicicMi  liail.  //,/./,    ilmt    tlif    jii.siiticatinn  of    till'  Nfi/.nio 

.A,./,.,,/,  V.  C'liiii,!,,//,  I  'I'liorn.,  C.'n.l  Kil.),  l!S.  line ler  t lie  wilt  wiih  nut  ii.niiili'tu  uitliimt  pntof 

•pf  iin  inik'l)t(Mlni'HH  fnmi  tin-  iilli'tjt'il  iilwccmilinj^ 

I.    romp(>lllllK  ShtTlfftO  p«}'  over  nionoy  ''*■'•''"'  »"  <'"'  I'^nty  mt.i.liinK,  ami  llml  the  pio- 

-Till'  ( 'mill  will  lint  giiuit  a  nilu  »m/  to  loinpi'l  'l"'''i"i>  "f  thf  iith<Iavii  mi  wliich  tho  iittnohint'iit 

,1  Shciitf  to  pay  oviT  ni(piiif«   lolU'ittil   inuh'i'  i'*""^''  ^vuh  not  mitlicii'iil  for  that  purj)osi). 


ixiTiitioii  whuic  thiM)^  aro  contlicting  tlaiins  to 
the  fiiiiils,  hut  \y\\\  k'HVi!  the  puitit-s  to  their 
renu'ily  liy  action. 

,.  Si'iiit  V.  Aiii/in,  .laiiu'H,  l,s,'{. 


H.  Escape    MciiNureordainugONliiuctioii 

foi'  CHoape— In  an  aHUfssnu'iit  of  (hiiiia^i'«  after 
ilet'aiilt  in  an  action  aj,'ain.st  a  Shciill'  for  an 
iwipc.  the  coroner  ilirected  the  jury  that  if  the 
(k'ltiii  had  heeii  allowed  to  escape  thi'oiigh  any 


12.   .riiMtinratlon  under  writ  of  execution 

-An  execution  under  which  a  .^licrilt  juwtilies 
liiu>t  lie  proved  hy  hilii. 

MrUiiifiiij  V,  (lihlifiiii,  JaniuN,  l.VJ. 


tn.    Money  collected  by,  and  not  paid  over 

—Negligence  of  judgment  creditojH  —Debtor 

m;,'ligiiice  in  taking  the  jiniiicr  precautioiiH  on  relcined— Action  on  a  proiniM.sory  note.  Dcfcnco 
lii«|iiirl  to  prevent  such  escape,  they  were  hound  no  coiiHideratimi.  \V.  &  McC.  ohtained  a  judg- 
til  tiiiil  the  full  aiiimml  "or  at  leaHt  heavier  melit  against  S.,  and  under  an  execution  in^tued 
iliiiuiges. "  on    this   jiidgnient   and   a   prior   execution  tho 

H'ld,  tliat  tint  was  a  misdirection,  tho  pro-  /'^herifT,  in  Feliruary,   IS.MI,  levied  on  the  goods 
[nT  measure  of  damages   licing  the  pecuniary    "f  ■'*"•  ""d  sold  them  at  a  great  sacrifice.     After 
v.iliieiif  the  custody  at  the  moineiit  of  escaiie.        .satisfying  the  prior  execution  there  remained  in 
Mr/'w  V.  Uiiii/o/i,  :i  K.  it  (i.,  .Sl,'>.     the  . Sheriff's  hands  a  halance  of  i'()(»,   which   ho 

did  not  pay  over  to  \V.  &  McL'.,  and  it  appeared 

it.  tioods  could  no'„  be  replevied  from  ''"^'^  *'"^y  "''^■*"'  '•""'*  '"'y  "^"1'"  ^"  '^'""i"'"' ''""  ^^ 

Sheritr  under  4-i,h  R.  S.— .Sec  .*«()  of  cap.  !)4,  K.  |  ''"  ""•  '"^^  ""  ^'t'^'*^''"'!  occasions  attempted  to  get 
\  (4tii  .series),  prevents  the  replevying  of  goods,  '"'  ''''''"""t  f''<"'>  tlie  .Sheritf,  hut  failed.  S.  sub^o- 
M.iztil  hy  and  in  the  custody  of  the  SheriH'  i,,,.  , 'l>'«"tly  ">'V'1«  several  payments  on  account  of  the 
lev  imiccss  out  of  the  Courts  therein  referred  i"'l«"'Wit  <Je'>t-  I"  Septemher,  1864,  S.  was  ar- 
iMlKiugii  such  goods  are  those  of  a  third  party,  ' '■'-'''''''''  '''^  *'"■'  •"st'i»<-'e  "f  W.  &  McC,  and,  to 
ijtmiiger  to  the  cause  in  which  the  process  i  "'^'"''^*''""'8 '"J'"^' I""'' ■^'"f>'n'-"i«''.'"»l«'*vo  two 
I'suid ;  and  where  other  defendants,  acting  in  ""*'^^'  ""**  "^  ^^''''^'>  ^*'''*  ''"*  ""^'^  *'"'^''  "I'""-  '^^^ 
the  Siierill's  aid  and  under  his  autlunity,  are  •  '''^f'^'X-'e  '^''t  up  was,  that  the  notes  were  witlumt 
jwneil,  the  writ  will  be  set  aside  as  to  all  the  |  *^""''''''-"'''**"'"'  ''"  "^  '*""'  ^"•^'''^  credited  with  the 
'Irf.'ntkntd.  j  balance  in  tho  Sheriff's  hands,  the  judgment 

C<trty  V.  Bourn  tf  a  ul.,  8  R.  &  C,  293. '  '''*'•*  w'^»^<^^  be  more  than  paid, 

'  Held,  that  as  through  the  negligence  of  tlie 
judgment  creditors  the  remedy  against  the 
Sheriff  had  been  lost,  they,  and  not  the  debtor, 
must  suffer  the  loss,  and  that  therefore  the  note 
was  without  consideration. 

Coleman  v.  Dnnlap  >:/  al.,  1  N.  S.  D.,  '216. 


10.  Justification  under   execution—  On 

lipial  from  a  judgment  in  favor  of  plaintiffs,  in  an 
iili'iii  iigiiinst  the  Sheriff  to  recover  goods  taken 
•'V  iiiin  under  execution,  it  appeared  that  the  de- 
iendant  at  the  trial  had  omitted  to  piove  that 
te  rtprfsciited  execution  creditors. 
//'W,  that  he  could  not  succeed  in  his  appeal. 
Johmmit  al.  v.  Archibald,  20  N.  S.  R., 


14.    Money  received -Action  for,  against 

Sheriff— Plaintiffs  having  recovered  a  judgment 

(8  R.  A  ft.),  321  ;    and  issued  an  e:-;ecntion  against  the  judgment 

9  C.  L.  T. ,  56.    debtors  were  about  bringing  action  against  tho 

,  defendant,   the  Sheriff,   for  negligence  in   the 

•1.    Jastlflcatlon   under    writ   of   attach-    execution  of  the  writ,  whereupon  defendant,  by 

Mnt-Must    prove    indebtedness— Affidavit  |  his  attorneys,  wrote  plaintiffs,  asking  permission 

'M  attachment  not  sufficient  proof— Where  i  to  be  allowed  io  issue  an  execution  against  the 

"i«  uefemlaut,  as  Sheriff,  seized,  under  a  writ  of  i  debtors  in  order  that  the  Sheriff  "  might  be  able 


125i 


SHERIFF. 


1250 


t<>  find  miftiuiuui  piopLTty  lo  f^uvu  himself  fioin  ,     U,    RHurii -Amending -Actuiil   sclzurp 

l(,s,H."  of  lnojKTty  l)uli)iigin<,'  to  tin;  deffiiiliuil.  uiidn- 

I'laintiffs  gave  tlie  pLTiiiisMioii  to  (kfuiiiliHit  to  I  tlieiittiiclmiunl  or  tlic  siiiiinioiiiiig  of  nn  iiuuiit 
issue  t!i'j  execution  "on  liis  own  rewpoiisilnlity  j  who  lias  goods,  &c.,  of  tiie defendant  and  imt  the 
and  to  l)e  considered  totally  ii'respective  and  '  Sherirt"s  return  merely  gives  tlie  (•i)urL  jiiii>.li.' 
U]>art  from  the  suit  we  are  now  al)out  to  hring 
against  t.lie  Sheriff."    The  execution  was  accord- 


ingly issued  and  S'2fX)  collected,  which  the  SheriH' 
declined  to  pay  over  until  the  suit  for  damages 
was  determined.  An  action  was  brought  for 
money  had  and  received. 

//'/(/,  that  the  venlict   for  dcfeiKhint  must  he 
sustained. 

/'()■  Weathcrhe,  J.— Tiiat  under  the  cories- 
pondence  the  money  collected  was  to  he  held  for 
the  purpose  of  indenniifying  the  defenchint  from 
loss  in  the  pioceeilings  to  l)e  taken  against  him, 
and  that  until  that  matter  was  settled  plaintiffs 
were  estopped  from  claiming  the  money  so  col-  i 
lected. 

Bankqf  lii-ilixfi  Xorth  America  v.  lUU, 

4R.  &(i.,  121. 


tion  in  process  against  ah.seiit  or  idistomliiig 
dehtors. 

The  Court  will  pernut  the  Sheritf  to  iiint'iiil 
his  return  to  a  writ  against  an  ahsent  diOjtoi. 
.so  us  to  .state  that  the  property  attached  was  tin- 
property  of  the  ah-sent  dehtor. 

lialrhforil  V.  Chi/»ii(ui,  "J  Thom.,  •_•.'{.'),  ih.-tin- 

guished. 

Miirixoii  i>  at.  V.  /loyil,  2  Thorn.,  '.'47. 

18.   Return  -Where  Sheriff's  return  stated 

that  he  had  attached  goods  "ri.s"  the  property  ni 
the  ahsent  dehtor, 

Ilild,  not  tolie  a  return  warranting  lhi-(oiiil 
in  assuming  jurisdiction. 

To   give    the    Court    jurisdiction    the   reluri] 
should    state   positively    that    the    Sluriti'  has 
attached  goods  or  estate  of  the  ahsent  dilitur. 
I'alrhjbril  v.  C/i/ywifc/,  "2  Tlinm.,  i'!,V 


1ft.    Seizure  hj    Sheriff- Kepresentation 

as   to  ownership    of  property    seized  —  Dm 


13.    Return -Estoppel- Where  the  defen- 

danl,  as   Sheriff,  levied  on   certain  goods   under 

executions,  and  a  writ  of  attachment   in   hank- 

ruptcy  was  afterwards  issued  against  th'.;  execu-  |  Nicholson,  heing  indehted  to  plaintiff,  gave  iiim 

tion  dehtor,   but  the  Sherifl',  after   the   i-ssue  of  I  a  horse  to  he  sohl  towards  the  satisfaction  nf  the 

the  attacliment,  proceeded  to  sell  under  the  exe-  |  debt.       Plaintiff  swapped   the   hor.se   with  niie 


cutions  and  paid  over  the  proceeds  to  the  execu- 
tion creditors,  the  Court  refused  to  set  aside  a 
verdict  against  the  Sheriff  at  the  suit  of  the 
assignee  for  improperly  selling  the  goods,  eti;., 


Hardwick  for  a  coll,  informed  Nicholson  cif  tlu- 
trade,  fixed  the  value  of  the  colt  at  .'?.").4i)  lunrt- 
than  the  debt,  and  paiil  this  amount  to  ;'  cr-4 
itor  of  Nicholson  in  final  settlement.     Hiinlwick 


and  for  his  failiae  to  duly  execute  the  writ  of  j  afterwards  became  dis.satistied  with  the  tia.'.i 

attachment  and  hand  over  the  property  oi  the  ,  insisted  uptm  plaintiff  giving  back  the  coll,  iiinl 

insolvent  to  the  assignee.  applied  to  M.,  an  attorney,  who  wrote  phuntiit. 

Hild,  that  the  return  to  the  writ  of  attach-  j  Plaintiff  called  on  the  attorney,  and  acconliiii: 

ment  did  not  estop  the  plaintiff  in  the  present ,  to  the  evidence  of  the  attorney,  declared  to  him 

suit  from  saying  that    the  same  had    not  been  |  that  the  horse  was  Nicholson's.     According  t" 

duly  executed.  j  plaintiffs  evidence,  not  contradicted,  he  stati-a 

kdd,  al.-<o,  that  a  verdict  for  the  net  proceeds  :  to   him  the  arrangement  between   himself  ai^l 

of  the  sale  with  12  per  cent,  added,  was  not  ex-  [  Nicholson  in  reference  to  the  horse,  as  ulmveset 

cessive,   the  evidence  justifying  t!ie  finding  of  i  out.     On  the  same  day,  and  previous  to  thi 

the  jury  that  the  goods  would  have  brought  that  '  interview,  M., acting  as  attorney  of  other  iwitii". 

amount   if  properly  sold.      Section   59   of   the  '  had  entere.l  up  a  judgment  against  Nl.holsftii. 

Insolvent  Act,  1869,  is  intra  rirts.  \  and  the  Judge  of  the  Couiity  Court  fouiid  ilut 

Kmmy,AmiiHM,\.Dwtnmn,2K.kC.,\'d.\Ahe  attorney   had,    on   the   faith  of  plaintitl' 

:  statements  that  the  horse  was  not  his,  hut  XkIi- 
!  Olson's,  caused  the  defendant,  the  .Sheriff,  t.. 
10.  Return-Notice  to  amend  return-  '  levy  on  it  in  plaintiff's  possession,  and  tli»t 
Costs  of  opposing-A  mere  notice  to  a  Sheriff  plaintiff  had  abstained  from  lookmg  after  otiw 
of  an  intended  motion  to  amend  his  rotim.  will  \  property  of  Nicholson,  who  was  a  mere  trar,- 
not  entitle  him  to  costs  of  afiidavits  to  oppose  sient  employee.  Hefore  any  expense  had  l)«'i 
motion  for  a  rule  nki.  i  incurred  in  keeping  the  horse,  an.l  before  t « 

If  a  Sheriff  has   improperly  omitted  to  levy  j  sale,  the  plaiutiflf  notified  the  Shentl  that 
the  remedy  is  by  action  against  him,  and  not  by  1  horse  was  his. 

rule  to  amend  his  return.  Held,  in  accordance  with  the  previous  ruii% 

Greighton  ct  at.  v.  Dani'M  James,  304.    of  the  Court  (3  R.  fc  C,  137),  that  the  iilaimi 


1257 


SHERIFF. 


125.S 


was  not  estopped  from  setting  iiii  his  (iwiu'i'MJiip 
iif  till'  Imise. 

/'. /•  Wuiitherlic,  .1.,  tlii'.t  tlio  ri'piv.sfiitiitiiiii 
was  nnt  iiiiiikMvitii  the  iiiteiitinn  timt  tiie  exeou- 
ticjiurt'ilitor  or  tiie  Shuiifr  mIkuiIiI  nut  on  it  liy 
m/AUii  tiu!  horse,  ami  it  ucuild  not  ho  re;iso;iiil)ly 
jnffirt'il  tiiiU  such  was  tlie  intention  ;  iind  fur- 
thi-r,  that  the  a.ssettion  of  piaintitf  had  not  l)ecn 
iiiiidi'  lialdly,  hut  witii  a  (|ualifieation  explan- 
iitmy  of  tlieaii'angenient  al)ove  inferred  to,  from 
wiiii'li  it  seenieil  reasonahle  that  the  at,.ornt'y 
hiul  acted  ratlier  on  tlie  l)elief  timt  tlie  horse 
cnuiil  lie  sliown  to  lie  Xieiiolson's  tiian  ii])on  tiie 
mere  assertion  rpf  plaintitf  tliat  it  was  so. 

MiK'iij  V.  lUiiiiiitl,-!  It.  ,t  (;.,  !Mi. 


20.   Seizure  b.v  Slieriif    Kepreseiitations 

as  to  ownership  of  property  seized  -I'laintitl' 
liii)U>,'ht  action  ayainst  tlie  defendant,  a  Sheritl', 
fi'r  tlie  seiznri;  ancl  sale  of  a  horse  on  an  exeeii- 
timi  iiiiainst  one  N'ieholson,  who  hi.d  some  lime 
liture  tiie  seizure  been  the  real  owner,  althoii'_'li 
liiiii  taken  the  animal  was  in  the  [MPssessiou  of 
till'  |il;iiiititr,  who  daiined  it  niuler  an  ailcLfcd 
imicliiise.  Defendant's  attorney  testified  that 
Vli'ie  seizure  plaintilf  had  told  him  the  horse 
t'tloiiged  to  Xieholson,  and  that  on  the  faith  of 
that  stiitenieiit  the  Sheritl'  had  lieeii  indiieed  to 
MiZf.  IJefoie  the  sale,  however,  plaiiititl'  not- 
ilit'l  tlie  Sheritf'that  the  horse  was  his. 

//"■'/,  leversiiii^  the  decision  r)f  the  County 
l'"iiit  at  Aimapc  lis,  that  the  plaintitf  was  not 
isKipiied  Ipy  his  reiuesentation,  and  the  defend- 
lilt's  having  incurred  expenses  in  feeiling  the 
lior>e,  \e.,  in  eon.se<iuence  thereof,  from  setting 
iptlie  tiuth  as  to  the  ownership  <if  the  horse. 

Mrh'ui/  V.  HonniJi,  W  H.  &  ('.,  l;!7  ; 
i  ('.  L.  '1'.,  .-.()(!. 


-1.   Slierlff  cannot  purchase  at  his  own 

sale-Objection  to  secondary  evidence— Sale  ' 
of  lands  under  second  judgment-  As  a  geneial 
nil(  a  Slieritr  (like  an  auelioneer  or  attorney  or  : 
i;iy  ntlier  person  holding  a  fiduciary  character) 
siiKapalile  of  purchasing   property  sold  uiicler 
rttrtitioii  hy  himself  or  under  his  authority  or  i 
'lifation,  and  such  purchase  is  ahsolntely  void.  I 
The  transaction,  however,  in  this  case  lieinga  : 
fair  line  (the  Sheriff,  although  he  purchased  the  [ 
lain]  of  the  execution  delitor  through  ii  third  j 
iwrty  at  his  own   sale  under  execution,  having  ' 
''iiiglit  the  judgment  from  the  execution  creditor,  ! 
M'l  having  paid  him  in  full  therefor,  and  no  I 
•>m  litiiig  shown  hy  the  defendants  to  repay  '' 
'''•■"^lieiiffthe  amount  so  jiaid),  the  Court  uphehl  ■ 
'I't  sale  and  set  aside,  in  an  action  fif  ejectment 
•'Jthe  Sheriff  to  recover  the  land,  a  verdict  in 


favor  of  the  clefendants,  who  cluimed  under  the 
execution  dehtor. 

Smith  <l  (d.  V.  Siiii>li  It  «/.,  2  Old.,  :«i:t. 

22.  Sheriff's  deed  Defendant  In  eject- 
ment elamieil  through  a  Sheriff's  deeil  and  gave 
in  evidence  the  execution  in  the  suit  jirior  to  the 
deed. 

Ill  hi,  that  he  was  not  hound  to  prove  the 
whole  proceedings  in  such  suit  to  have  heen 
regular. 

Sitt hi  1-1(1  III/.  V.    HVi/'/'/««,  "2  Tlioni.,  410. 

2;{.    Sheriff  releasing  debtor  discharged 

by  Commissioners—Action  against  Sheriff  - 
In  an  actitin  against  iv  Sheriff  for  releasing  a 
delptor  iniprisone<l  under  process  out  of  the 
Ciiunty  Court,  an  order  having  heeii  made  for 
his  discharge  liy  Commissioners  for  the  relief  of 
insolvent  ilehtors,  the  County  ( 'ourt  decideil  in 
favor  of  the  plaintiffs  or,  the  groiin.i  that  previ- 
ous to  .Ayiril  4th,  ISTs.  .-uch  '  oniinissioiiers  had 
no  pcpwer  to  I'elieve  in  t'le  case  of  executions  ipiit. 
of  the  County  Court,  ifter  the  argument  of  the 
ajuieal  from  this  decisi  111  and  Ipcfppi'e  judgment, 
the  Act  of  1S7S,  "for  tlie  relief  of  ildptois  im- 
prisoneil  under  process  issued  out  of  the  County 
Court  "  was  passed,  one  clause  of  which  Jiiovided 
that  no  action  should  lie  taken  or  sustained  l>y 
reason  of  such  ]iroceedings  lieing  void  ( i.  e. 
proceedings  hefore  the  Commisiiiouers  taken 
previous  to  this  .\et. ) 

//'/'/,  that  this  Act  was  retrospective  and  the 
action  could  not  lie  sustailieil,  hut  that  the 
judgment  for  defendant  should  he  without  costs, 
as  the  action  had  lieeii  rightly  lirought  in  the 
first  instance. 

The  Court  refused  to  grant  a  re-argument, 
ap])lied  for  on  the  grounds  that  the  Act  of  ISTS 
was  ii/ti-a  rlri-s,  ami  that  it  could  not  he  con- 
strued retrospet^tively. 

Cntlip  it  nl.  v.  Calilinll,  I  R.  ^  (;.,  74. 

21.    Sheriff's    sale  -  A  purchaser  at   a 

Sheriff's  sale  may  a)ipoint  a  third  p('rson  to  re- 
ceive the  deed. 

Scott  v.  Mi-Xiitl  It  !■(/.,  2  X.  S.  1),,  IIS. 

lit.  Trover  against -In  an  action  for  con- 
verting goods  of  the  jilaintiff,  taken  hy  the 
deftndant,  a  Sheriff,  out  of  the  possession  of  the 
plaintiff's  father,  who  had  formerly  owned  the 
goods,  defendant,  attacking  the  transfer  on  the 
ground  of  fraud,  pleaded  a  justification  under 
an  execution,  ami  on  tlie  trial  put  in  evidence 
the  execution  hut  not  the  judgment.  The  Judge 
instructed  the  jury  that  if  a  transfer  liad  taken 


1259 


SHIPPING. 


1200 


place  to  the  plaintiff,  the  (lefeiulant  siiouM  luive  registpred  in    tiie   County  in  whicli   they  witc 

sliown  tlie  jiulgnient  iw  well  us  the  execution.  assexseil,  and  the  County  Court  Judge,  on  tlu'iui- 

Htld,  that  this  was  no  misdirection.  thority  of  Kenny  v.  Thf  City  of  Halifax,  deciileil 

Hnnnon  v.  McLean,  ,S  R.  &  C,  101.  that  they  were  not  liaUle,  hut  as  it  was  shiiwii 

on  the  trial  of  the  appeal  that  the  appellant  Imil 

On  appeal  to  the  Smn-eme  Conri  of  Canada,  ,■  .,       .     ,  ,•  n.,  i  , -u    i  i  i 

' '^  '  •  '        a  ship  on  tlie  .stouk.s  partially  l>uut,  he  iiiiiciiileil 

Ihid,  that  the  Sherift'  was  entitled  under  his    ^\^^  assessment  to  cover  half   the  value  .if  t!ie 
pleas  to  have  it  left   to  the  jury  to  say  whether    said  sliii). 

the  plaintiff  had  shown  title  or  right  of  posses-  7/,7,/_  that  the  judge  was  correct  in  his  jiulj,'- 
sion  to  the  goo.ls  in  (iuestioii,  an<l,  therefore,  ,„ent  as  to  the  nonliahility  for  shipiiiiig  out  of 
there  was  misdirection.  the  County,  hut  that  he  could  not  on  the  trial  i,f 

McLean  v.  ffaiinon,  ,S  S.  C.  R.,  TIMi.    that  appeal  consider  a  different  item  of  assess- 
ment, not  suhmitted  to  the  Court  at  all,  as  in 

the  ship  on   the   stocks,  and   the   appeal  iiiiist 

therefore  be  allowed. 
SHIPPIXW.  /"  '•'  Assr-i.-onrnf  ofJamf"  Crom  ,  ,S  R.  &  ( ;.,  :t(il; 

'2  C.  L.  T.,  DiNi, 

1.    Appraisement  of  ship  and  carso  — 

Directions  given  )>y  the  Court  as  to  the  proper 
method  of  executing  sucii  ai)praiseiiieiil. 

77a  Rn/iiia,  V.  A.  1).,  107. 


5.  Assessment  of  sliippins— Ship  regis- 
tered at  H3.1ifax— Owner  in  Guysboro  County 
—  Ship  absent  at  time  of  asse.ssment— 

//(/d,  that  a  vessel  registered  in  the  poit  nf 
2.  Appraisement  -  When  conclusive  -  Halifax,  and  owned  by  a  trader  resident  at  l.saacs 
Where  an  a])praisemciit  is  oiJeied  Ipy  tiie  Court  Harbor,  and  not  at  the  time  of  the  assessment  in 
at  the  instance  of  the  salvors,  witli  a  view  to  a  the  District  of  Isaac's  Harbor,  or  the  County  of 
decree,  and  has  been  duly  made  l)y  reliable  ( luysboro,  was  not  as.sessable  in  the  District  (if 
parties,  the  Court   will  not  allow  it  to  be  (|ues-    Isa  ic's  Harbor  for  county  rates. 


tioned. 


TIk  S.  /!.  Hiiii,, ,  Y.  A.  I).,  -J-iS. 


James,  J.,  dis.-:(_!ifiii,/. 

In  re  Efiie  Sinif,  .'j  R.  v<c  (;.,  .'Nil: 
.SC.  L  T..44. 


G.    Assessment  of  vessels    titj  of  Hallfas 

•Vessels  not  registered  there— Owner  resul- 


3.  Appraisement,  when  too  hi^h  -After 

two  commissions  of  apjiraisemeiil  had  been  is- 
.sued  and  the  returns  in  Ixitii  cases  found  too 
high,  so  that  no  sale  could  be  effected,  the  Court 
fi.\ed  an  upset  price,  ordered  a  sale  at  short  ing  there  -  Not  assessable  for  City  rates  - 
notice,  and  made  a  decree  of  salvage  upon  the  Halifax  City  Charter,  1864-37  Vic,  c.  30. 
proceeds  thereof.  «•  1-  ^nd  27  Vic.,  c.  81,  ss.  340,  347,  and  361, 

T/f  Ccmliriil;;' ,  \.  A.  1),,  (i:{,    N.  S.— K.  resiiled  and  ilid  business  in  the  fily 

of  Halifax,  and  owned  slii])s  which  were  not  n- 

4.  Assessment  of  Sllipping-Appeal  to  gislered  at  the  City  of  Halifax,  and  wliieii  lia4 
County  Court  from  Municipal  Council— Power  never  visited  the  port  of  Halifax.  Umler  the 
of  County  Court  on  appeal  as  to  different  authority  of  37  Vic,  c,  3i»,  sec  1 ,  and 'J7  ^  ii.. 
items  of  assessment  than  those  appealed  from  c  81,  sees,  .340,  .")47  and  301,  the  assessors  of  tin- 
—By  the  Revised  Statutes  (4th  .Scries,  1874),  an  |  City  of  Halifax  valued  the  property  of  K.,  m''\ 
a])peal  from  an  assessment  was  given  to  the  !  incluiled  therein  the  value  of  said  vessels. 
Court  of  Sessions,  In  187f)  it  was  enacted  that  '  Under  the  laws  in  force  in  relation  to  tlieCity 
any  party  aggrieved  by  the  decision  of  the  Ses-  j  of  Halifax,  December,  1877,  Held,  that  vpssel*. 
sions  could  appeal  to  the  County  or  Supreme  '  the  owners  whereof  resided  and  did  Imsiness  in 
Court.  In  187!)  the  powers  and  authorities  of  '  the  City,  but  wiiich  were  not  registeieil  in  Hali 
the  Sessions  were  "  given  to  the  Municipal  fax,  and  had  never  been  in  the  i)ort  of  Hr.iifiN. 
Councils."  were  not  assessable  for  City  rates. 

Held;  that  the  power  given  to  the  Councils  to        Kenny  v.  The  City  of  Halifax,  1  H.  &  •■■•  ■'"• 
hear  rppeals   from  the  assessment    uinler   this  [ 
Statute  was   subject  to   the   condition  that  an        On  appeal  to  the  Suprem"  Com-l  of  Cnnwh 


Held,  tliat  vessels  owned  by  a  resident,  Init 
never  registered  at  Halifax,  and  always  sailm?  i 


appef.1  should   lie  to  the  County  Court   in  the 

same  manner  as  formerly  from  a  decision  of  the 

Sessions,    The  appeUaiit  appealed  to  the  County  j  abroad,  did  not  come  within  the  meaning  of  m 

Court  against  an  assessment  of  8.')000  on  "  .ships  I  words,  "  whetlier   such  ships   or  vessels  lie  ii' I 

in  other  districts  "  which  had  been  built  but  not  i  home  or  abroad  at  the  time  of  assessment,  aiiJ 


1261  SHIPPING.  12G2 

thereforu  wure  not  liiil)le  to  lio  asaesseil  for  City  I  l)enefit  of  tlie  underwriters.     It  is  not  necessary 

tiixM.  for  ii  plaintirt'  in  trover  to  iiave  a  right  of  pos- 

TluC'ify  of  Ilalijhx  V.  Ktiiui/,^S.  ('.li.,W~.    iitjiiiiioii   in   tlie    goods    at   the    time  of    action 

Itrouglit,  provided  he  liad  sucii  right  of  pos.ses- 

7.  mil  Of  lading -Action   against  master    «'""  '^^  the  time  the  cauHe  of  action  accrued. 

for  short   delivery  of  cargo  —  In   an  action  1      «i<>"ds  assigned  in  tmiislfu  i.y  indorsement  of 

l.mii^'lit  l)y  plaintiffs,  as  assignees  of  a  l.ill  of   a  ''iH  of  linUiig  may  l)e  revested  in  the  assignor 

lacliiij.'  against  defendant,  the  master  of  a  ves-    ''>'   cancelling   the   indorsement   on  the   l)ill  of 

sei,  for  tlie  short  delivery  of  a  cargo  of   pro-    hiding.  ... 

,        .1         •  1  ,  1   ii    ,.  i.1  1  Stalkvr  et  at.  v.  lVi(r  et  ciL,  James,  248. 

iliK'e,  the  evidence  siiowed  that  the  cargo  was  I  '  ' 

the  proiierty  of  '!'.,  and  was  merely  shipped  to        ,„      „,.,     .,    „         „   .„„       „    ., 

,    ,,    ,      „       ,  ,       wi  .  ,1        10*    Bill  oflading,  labllty  Of  slipowners 

plaiiitilts   to  sell   on   Ills  account,  and  that  the  ,  ...        ,„   .     .~    ,  .        , 

,    ^   ,  ,.  lit  1     1  r         .1  under  exception  in — Piaintiff  shipped  a  (luau- 

slioit  I  lelivery  complained  of  resulted  troiii  the  ..  ,r,        ,  ,  ,, 

,  1    1      ir        ■  1      1     I         11  1  tity  or  iron  on  (letendants  steamship  and  took  a 

Mies  made  oy  H.,  witli  tlie  knowledge  and  con-  ,  .,,    ,  ,    ,.  ...  , 

,,  ,„  bill  of  lading  containing  these  words:     "Loss 

,,,,.,    ^    ,   .     .„,  ,,  I  or   damaj'e   resulting  from     *     *      *     leakage, 

//■A/,  that  plaintitts  could  not  recover.  ,        ,  ,  ,  ... 

.,,,.,,,         r    ,,,  ,  breakage,  rust,  decay,  frost,  ram,  injury  to  or 

oo  X-    w    u     /on    (■<■>    .)~o    '  soiling  of  wrappers  or  packages,  liowevercauseil, 

^\}    i>.     >.      K.,    («    Iv.    iX    '■.),    .1(.1   !       »         »         ,  ^       ,  r.i,  111..!  r 

,    I    ,.,     <•(  excepted.      J  he  goods  to  be  taken  troiii 

alongside    Ijy    the    consignee    immediately  the 
vessel  is  ready   to  discharge,  or  otherwise  they 

8.  Bill  Of  lading  -By  a  bill  of  lading,  a  ^.^  j.^  ^.,,^ae,\  l.y  tiie  master  and  deposite.l  at 
«it;iiii  -luantity  of  lumber  was  stated  to  be  j|,^,  e^j,^.,,,,^  of  tlie  cf.iisignee,  an.l  at  his  risk  of 
^hippnl  by  C.  .S:  .J.  M.  &  Co.,  the  plaintiffs,  on  ,i,.^,^  ,„^^  ,„,  i„j„,,y^  ;„  i|,^,  ^-arehouse  provided 
l„:ua  the  biigantine  "Annie"  (the  property  ..f  f„,  ,|,,^t  p,„.p„se,  on  the  company's  wharf  at 
pbiiitiffs),  lying  at  Port  Medway,  bound  for  Halifax,  or  sent  to  the  public  store,  as  the  Col- 
liemenu-a,  to  be  delivered  to  .Icfcndaiit  or  iiis  jg^,^,,,.  .^^  t,,^  j,,,^,^  „f  Halifax  shall  .lirect."  The 
aligns.-  Together  with  the  bill  of  lading,  de-  steamship  proceeded  on  her  arrival  in  port  to 
f.mlaiit  received  a  letter,  instructing  him  to  .sell  i,,^  RaiUvay  Wharf,  an.l  in  or.ler  to  get  at  goods 
ihf  uatgo  and  remit  the  proceeds  to  T.  ^\:  C.  .1.  to  be  there  discharged  the  plaintiff's  goo.ls  were 
iCo.  to  credit  of  account  of  plaintiffs.  The  taken  out  and  deposited  in  a  shed  on  the  wharf, 
ktter  was  unsigned,  but  there  was  evidence  that  pi.^i„tiff  „as  aware  of  the  arrival  of  the  .ship. 
It  lui.l  been  written  for  an.l  on  account  of  plain-  ,^,„,  ^^^^^  ^^^^  freight,  but  could  not  obtain  de- 
titVsal.me  an.l  was  i,„l.,rsed,  "letter  from  C.  ij^.^,,,^.  ,,t  tl,e  Railway  Wharf,  as  the  appr..acli 
X-  .T.  M.  &  Co."  There  was  ..■.inflicting  evi.lence  „..^^  \,„t^t  for  teams,  ami  the  agent  .)f  the  ship 
i,M.i  the  ;)r.)perty  in  the  go..ds,  the  weight  of  ^ifterwar.ls  .sent  the  goo.ls  in  a  lighter  to  Cor- 
-vikiice  preponderating  f..r  plaintiffs,  wh..  lia.l  ,  ,,ytt's  wharf.  The  g.)..,ls  were  injuie.l  by  rain, 
liuichase.l  the  lumber  horn  C.  .V  .S.,  an.l  the  in-  '  yit,,gj.  „„  ^,,3  i>.,ii„.ay  Wharf  or  in  the  shed. 
v-ia'acc.impanyingthcbiUofla.ling  an.l  letter  I  ^..^  „f  j,,e  plaintiff's  witnesses  gave  evi.lence, 
.it  instnicti..ns  was  hea.le.l,  "  invoice  .)f  ..arg..  of :  ,,,,t  objected  t.),  that  a  clerk  of  the  agent  for 
li'.ralier  shippe.l  by  C.  &  S.'"  kc,  aii.l  was  signed  .lefen.lants  ha.l  state.l  to  him  that  the  goo.ls  had 
ly  C.  >S:  S.  Defen.lant  .sohl  the  carg.,  and  re-  ^,,„„j.  „„t  of  the  ship  in  the  rain,  and  the  .Ju.lge 
mittcl  the  pn.cee.ls  t.)  C.  .S:  ,S.,  and    action  was    ^^.,,„  tne.l  the  cause   with..ut  a  jury  f..uii.l  tlml 

vmglit   by   plaintirts  <m    the   ommon   cmnts  tl,o  goods  ha.l  been   .lamage.l  in  being   lau.lcd, 

-  for  iiK)n.;y  received  to  their  use.  .^,,,1  ,^.^^.^  judgment  for  jilaintiff 

tfW,  that  after  the  sale  the  .lefen.lant  licl.l  yy,/,/    thai"  the   lan.ling  .)f    the  g.)o,ls  at  the 

IM  i)imuc.lsf.)r  the  benerit..f  the  plaintiffs,  ami  Railway  Wharf   did  not"  discharge  the  defen- 

III  remitting  them  t.)  C.  &  S..  .li.l  so  in  his  .,wn  .^.^^j^^  ,^„j  that  defen.lants  «ere  liable,  notwith- 

«™g,  and  that  the  verdict,   which  was  f.,r  .le-  j^tan.lmg  the  excepti.ms  in  the  bill  ..f  la.ling  for 

i^i.lant,  sh.)ul.l  be  set  asi.le.  the  injmy  t.)  the  g.x.ds  by  rain,  whether  caused 

.Vortoii  ,t  nl.  V.  MrUod,  I  R.  X"  C,  71.  ,„  the  act  of  lan.ling  or  from  the  .Irippings  from 

the  she.l,  over  which  plaintiff  had  no  control. 

9.  Dill  of  lading— Indorsement  of— Trover      Weithcrbc,  .1.,  dU'<>:nfimi,  lu/d  that  the  on- 

-Wrecke.l  pr.)pertyabaiidone.l  to  underwi  iters  signee  n.it  having  taken  the  goods  from  al.jiig- . 

wi'l  assigned  to  them  by  indorsement  of  the  bill  si.le  they  had  been  landed  by  the  master  and 

"!  lulling  by  tlie  owner  of  the  goo.ls  may  not-  deposite.l  in   the   company's   warehouse  at  the 

'itlistaiuling  be  recovere.l  in  an  action  .if  trover  consignee's  risk  of  injury  from  rain,  there  being 

W'Higlit  against  parties  illegally  in  possession  in  nothing  in  the  bill  of  la.ling  to  limit  the  sliip- 

tl't^  name  .if  the  owner  .if   the  g.iods   for  the  .iwner  as  to  the  place  in  the  port  .if  Halifax  at 


1263 


SHIPPING. 


12G+ 


which  the  goods*  woio  to  lie  hiii«k'.l  lieforo  liring  '  'li-r  ii  vi).;oroiis  lilockade,  \\n'  only  .iiirstidii  was 
.U'lHisited  in  the  coniimny's  wiiii'house.  An<l,  !  Iw.w  fiir  tin-  I'mployniunt  in  wliioli  Hit  vismI 
further,  tluit  the  verdict  sliould  he  set  aside,  |  was  engaged  was*  ff  ii  t'avorahle  nature,  luid  muIi 


as  to  form  an  exception  to  tlie  strict  niU<  nt 
hhickade.  A  vessel  hired  tr)  carry  hoiiic  tiif 
enemy's  suhjects,  who  compose  the  slrciigtli  nt 
his  country  and  form  his  fleets  and  armies,  <iii<l 
whose  impoitance  to  him  is  manitesled  Ijv  tin- 
1  R.  it  <;.,  140.  •  peculiar  protection  granted  them  hy  the  (niv 
ei'ument  itself,  is  a  material  service  perfnniiivl 
..•     •     1  ■>-..„„k    «r        u'i.«>»    o    to   the  enemy,  ami  as   such    certaiidy  ciiimnt 

11.    Blockade  —  Breach  of— Where  a         .  •"    . 

blockade  has  lieen  notilied  jmhlicly,  no  further 


bccau.se  there  was  no  legal  evidence  in  support 
of  the  ground  on  which  it  was  based,  namely, 
that  the  goods  were  injured  in  the  act  of  land- 
ing them. 

liohirtson  V.  Dominion  S.  S.  Coni/xini/, 


atl'ord  to  a  neutral  any  plea   which   c;in   jii>lifv 


infoiinution  is  necessary  ;  and  if  a  vessel,  know- 
ing of  such  notification,  sails  to  the  ])ort,  ami 
linds  It  bliickadcd,  it  is  a  breach  of  the  blockade.  } 
Thi  Car/of/n,  .Stewart,  .■).'<!». 


the  breach  of  a  blockade. 

Till   TanKi'iliiiinli,  Slcuait.  '.'."■l. 


14.    Blockade    E.u'use  for  breath  of 

Order  (if  Till  .lanuary.  lN<»7,  furbiddiiig  tniilc 
12.  Blockade  -  Cargo  brought  from  a  between  two  enemies' ports,  ap|ilics,..,ly  t-.  v.,. 
blockaded  port  by  land,  and  shipped  in  an  ;  sels  taken  between  the  two  i.-.rts.  and  i.nt  ;„ 
open  port,  not  liable  to  confiscation  -  IJy  order  ;  those  merely  inten.ling  so  l.>  tia.lc 
in  Council  of  -.'(ith  April,  ISOf),  all  ports  and  -^  bl„cka.le  cannot  be  cNtendcd  by  infcmi.v 
places  under  the  (iovernment  of  France,  were  m"!  supposition.  It  is  one  of  tiie  severe  nj;i,i> 
placc.1  in  a  .state  of  blockade.  "»'  "■"■•  "''i^'''  •'>■'•  l'''''^^'  '"  ''   ''^''^^   '""'  ''-"' 

A  vessel  was  only  at  Tonningen,  and  in  tlic  intcriaetation.  •Die  Order  cannot  lie  prc>>nl 
RiverEyder,  which  were  neither  of  them  within  lieyon.l  tiie  jilain  and  dctinile  words, 
the  compass  of  any  blockading  order;  but  a  Tiie  l)lockadc  of  the  port  of  Copeidmguii  iina 
great  part,  nearly  the  whole  cai-go,  was  f:ent  the  other  p<.rts  of  Zealand  is  not  a  lilocka.ic 
from  Hamburgh,  whicli  was  a  port  within  tiie  generally  of  all  Denmark,  oi' .,f  tlie  eMtriiuce.! 
said  Order  in  Council. 

//-/(/,   that  all  such  goods  as  may  have  been 
brouglit  from  Hamburgh,  or  any  other  blockade 
port,  to  Tonningen  by  sea,  were  liable  to  con- 
demnation.    That  all  such  goods  as  may  have    'de  necessity,  shall  lie  admitted  as  an  a.lu.uMt.' 
been    brought    from    Hamburg,    or    any    other    justilicafion  for  a  vessel  proceeding  t- a  Mmk- 
blocka.led  port,  by  land  or  inland   navigation,    iided  jiort.      Wliatevcr  other  reason  is  assii^in.!, 
and  such  as  may  have  been  brought  from  ports    it  is  ))re.sun,cd  she  is  going  there  to  trade. 
not  blockaded,  or  from  the  interior  of  the  conti-  ]  ''''<'    /^•O"''  --■.  •Stewart,  'X. 

nent,  whether  hostile  or  neutral,  provided  they 

belong  to  neutral  pr.iprielors,   were  entitled  to        15.     BlOCkadC     (iOOds,  brought  froill  IllC 

restitution.  blockaded  ports  by  water,  to  ports  not  iniiiin" 

The  Thoniat  liV/«);(,  .Stewart,  "JOO.    jiendeil    in    the  Oi'der  in  Council,    coiistitut.   i 

'  breach  of  the  blockade. 


tlic  r.allic. 

It  has  l)ccn  laid  down  as  a  general  luk'  in 
liroisli  Courts  of  I'i'i/.e,  tliat  no  excuse  nr  piv- 
tence  wiiatever,  siiort  of  llic  most  insuriiKiiiMl  i- 


Blockade  of  Leghorn  broken  by  bringing:.' \* 

from  titence  by  sea  to  Civita  Vecchia. 

Thr  .]fttri/iiii  ill'.  Soiiii  rin/i ",  Stewart.  44V 


1«.  Blockade  -Knowledge  of  Kdaxal 


13.    Blockade -Conlraband-It  has  been 

decided  in  several  cases  that  carrying  soldiers 
anil  sailors  to  France,  though  not  regular  corps,  j 
and  not  intended  for  any  particular  service,  is 
eii"aging  in  a  tvade  of  a  contraband  nature. 
Though  a  few  straggling  or  accidental  persons  ,  — Tiic  Xaiicy  was  captured  by  the  Bestoii  .* 
might  innocently  be  permitted  on  board  a  gen-  account  of  having  broken  the  blricka(k' 
eral  passenger  vessel,  yet  when  a  vessel  is  em-  Martinitiue.  Siie  was  uu  American  vessel  cl 
ployed  for  tiiat  purpose  only,  and  carries  a  tered  by  one  Inkel  of  New  York  to  carry  iUiiii;'» 
whole  cargo  of  the  ciiemy'.s  subjects,  w  ho  may  of  provisions  to  that  island,  where  siie  uitivpI 
immediately  be  hostilely  employed  against  (4reat  March  iOth,  1804,  at  the  port  of  Triiiite,  iV"!" 
Rritain,  such  a  cargo  can  scarcely  be  considered  whence  she  proceeded  to  Saint  Pierre  on  tiie.ii'l 
as  of  an  innocent  nature,  especially  when  sailing  April,  sailed  out  again  on  the  l.'ith,  on  lienaiini 
under  the  peculiar  protection  and  passport  of  ,  to  New  York,  and  was  taken  upon  tlie  iWi 
the  French  (iovernment.  '■  Further  proof  had  been  directed  to  he  ohtaiiiel 

In  this  case  the  port  of  destination  being  tin-  i  upon  these  points  ;  first  whether  the  kiiowii'Ii.''-' 


1265 


SHTPPrNG. 


12GG 


111'  ii  strict  l)l()i'kii(lf  of  .Miirtiiiii(iic,  uiul  jiiiiti- 
ciiliirly  iif  CiiimniMldii;  HimhI's  notiticiitidii  "f  the 
Ttli  Ki'ld'iiiiry,  lf^U4,  liiul  ri'iiclu'il  Xuw  York 
liefiii'i'  tlie  XiiiK'y  Hiiilod  fi-diii  tlit'iici-,  mid 
HCiMincUy,  wlietlitT  tlio  lildckiiile  df  tliat  isilimd 
had  lii'cii  riiisjiuiided  froiii  alidul  "JSth  Miirch  till 
after  Ajnil  l.'itli,  1.S04. 

'Phi!  I'liitisli  fdi'cu  WHS  withdniwii  fr-oiii  the 
i^lalld  iilidut  .Miu'cli  "JStli,  and  a  resident  of  the 
i>laiid  deposed  tliat  it  was  the  jj;eiieral  opinidii 
there  that  the  liloekade  hail  ceased. 

UiM,  tiial  stieliaii  opiiiidii  will  go  a  very  little 
way  to  eslalilish  a  siispeiisioii,  unless  it  is  proved 
to  have  lieeii  foiwu'.ed  upon  facts,  wiiich  would 
>ii](pdit  such  a  Cdnclusioii. 

\o  vessels,  it  was  said,  had  heeu  seen  from 
the  island,  except  that  tile  llleiiheiui  liad  once 
junked  into  St.  I'ierre,  and  another  vessel  or 
twd  liad  oecasidnally  appeared. 

Ill  III,  no  proof  of  a  rehixation.  Tlie  vessels 
iniirht  have  taken  their  stations  further  oil'. 
l»i.-tanee  is  iiuiiiaterial,  and  iiothinj^  can  he  con- 
sidered as  evidence  of  a  suspension  which  is  con- 
«istciit  witii  an  actual  hlockade. 

//■/'/,  lireach  of  the  liloekade  fully  proved,  and 
that  the  lej,'al  iicnalty  of  conliscatioii  must  attacli 
upon  the  parties  who  are  privy  to  it,  up<in  tln' 
>liip  from  the  eoiuluet  of  the  master,  and  U])on 
the  ^'eneral  earyo  claimed  hy  Tnkel,  as  the 
wliole  liusiness  wa.s  conducted  under  the  iiniiie- 
iliate  direction  of  his  clerk  aiid  agent. 

Till  Xiiiiri/,  Stewart.  '2S, 

lU'versed  on  ajijieal  to  the  Lords  of  Appeal, 
f\(.c])t  as  to  Inkel's  goods  which  were  con- 
'Iciiiiicd,  SUt  Mnnh,  ISI'i. 

Stewart,  .SS. 

n.    Bloekiule  of  (iipaeo.i  — Excuses  for 

breach —  Loose  information  that  a  liloekade  has 
liccu  raised  aflfords  no  excuse  foi-  a  lireach. 
Want  df  water  and  ])i'i)visions, 

H'//,  not  proved  in  tliis  case  and  insutticient 
if  it  were.  The  failure  of  excuses  shows  plainly 
tliat  tlie  voyage  was  premeditated. 

Till:  Elr-ahith,  Stewart,  SO. 

IS.    Blockade  of  Martlnl(|uc— Vessel  and 

i.argo  seized  l.Stli  August,  1S04,  ahout  two 
mmuhs  after  liloekade  had  ceased,  ordered  to  be 
icstiired,  an<l  the  captors  condemned  in  costs. 

Till'  Ship  IhtMfy,  Stewart,  39. 

19.    Blockade-Proof  Of-  Burden  of  proof 

—Where  a  blockade  has  been  known  to  exist  the 
lilaiiitiff  must  prove  the  relaxation  ;  but  where 
it  is  not  known  that  a  blockade  has  been  com- 
menced, it  is  for  the  captors  to  establish  it  by 
fviilence.     Licensed  vessels  are  not  affected  by 


an  Order  in  Council  for  bhurkade,  where  such 
does  not  ajipear  to  luive  bieii  His  .Majesty's  in- 
tention. 

A  block. ide  is  not  a  ineasuru  which  legally  af- 
fects the  enemy  at  all  ;  it  iiperates,  in  point  of 
law,  only  ujion  neutrals.  Upon  them  it  has 
a  real  legal  etlect.  It  gives  new  rights  t<i  the 
blockaders.  Without  it  neutrals  might  trade  in 
.safety  to  the  jiort.  It  is  the  blockade  alone 
which  creates  the  light  of  ca)ituring  the  vessels 
of  neutrals.  .Since  a  blockade  creates  no  right 
of  capturing  eneniy's  property  wiiich  did  not 
before  exist,  if  tiiis  general  right  of  capturing 
his  property  has  been  suspcnd(!d  by  a  license  it 
cannot  be  revived  or  renewed  by  a  blockade, 
and  cruisers  cannot  acijuire  from  the  liloekade 
a  light  to  capture  the  enemy's  property,  in  a 
case  where  that  right  has  been  susiiendcd  liy  the 
act  of  the  cruisers'  own  ( iovcrnnient. 

Tin  Oriim,  Stewart,  4!I7. 

'20.    Blockade  —  RctiiiisHes  —  .4  blockade 

must  be  ill  jhrlu.  Xotitication  alone  is  not 
suliicient.  The  blockade  of  New  N'ork  com- 
menced on  •J'Jnd  dune,  ISKi.  .After  a  public 
iiotilication,  the  actual  investment  constitutes  a 
complete  blockaile  witlmut  further  notice. 

Thi   /i'l /iiili/irmi,  .Stewart,  ."iT  1. 

21.  Blockade -Vessels  associated  for  a. 

block.ide  are  entitled  to  shares  in  ca])tiircs  of  the 
oneniy's  property,  though  the  pri/.e  was  a  wreck 
on  shore  and  not  captured  aHoat. 

Till  F/i;ili>.  Stewart,  ."i.-i!). 

22.  Bottomry  bond,  action  on -Ports  of 

the  Dominion— Home  ports  in  relation  to  each 
other— A  vessel  belonging  to  (Quebec  havitig 
saileil  from  Halifax  bound  for  ("ow  l!ay,  iiiCajie 
iJreton,  encountcreil  heavy  gales  and  was  coni- 
jielled  to  put  back  after  having  been  at  sea  for 
forty-three  days.  A  survey  having  been  held, 
she  was  pronounced  to  be  totally  unlit  to  jiro- 
ceed  on  her  voyage,  unless  refitted  and  repaired. 
The  owner  was  then  at  Halifax,  and  being  un- 
able to  procure  funds,  applied  to  one  (i.  1!.  F. 
for  a  loan  on  bottomry,  and  (i.  R.  F.  advanced 
the  sum  reipiired,  Tlie  vessel  was  already 
mortgaged  to  (i.  H.  15.  in  Quebec,  but  of  this 
fact  (i.  R.  F.  had  no  notice.  (J.  R.  F.  took 
proceed'iigs  to  recover  the  amount  due  on  the 
bond  and  was  opposed  by  O.  H.  R.,  who  set  up 
liie  priority  of  his  mortgage,  ami  denied  the 
validity  of  the  bond. 

Hdd,  that  all  the  ports  in  the  Dominion  must 
be  accounted  home  pi'rts  in  relation  to  each 
other,  and  therefore  that  the  bond  could  not  be 
enforced  in  Admiralty. 


1267 


SHIPPING. 


12C,S 


iStrioturojt  mi  tlie  want  c)f  juiisiliction  in  llji; 
Vift'-Adniiralty  ("luiit  iiiul  tlu-  c()n»i'<(iieiit  fail- 
urt's  i)f  justii-e  in  thu  Coloiiies. 

Th>'  77in«  .S'M/,rs,  \.  A.  D.,  149. 

'13.  Charterer  nelentlon  of  vessel  by- 
Loss  during  detention  —Wiieri'  ii  vusscl  is  de- 
tiiinud  liy  liic  cliiii'terets  lifjiunl  tiio  aij;i»'ed  tiint' 
for  loadiiij,'  and  is  limt  in  a  sti.riu  iluiing  siioli 
dctt'iitiiin,  tlie  loss  of  tlie  vessel  is  tiii>  roniote  a 
i'')nst.M|U('ni'f  (if  tiie  detention  to  form  tiit;  suliject 
of  an  aet ion  against  tlif  i/liarteieis. 

Tohm  V.  fii/moiifls  ,i  i,/.,  -2  Old.,  Ul. 

24.    Charter-part}    A  charter-party  con- 

tiiined  the  following  elaiise  :  "  It  is  agreed  tlmt 
the  I'esponsiliility  of  the  eliarterui'  ceases  as  soon 
as  tlie  cargo  is  on  Uoard,  the  vessel  holding  a 
lien  on  the  eai'go  for  freight  and  demuriage." 
I'laintifTs  sued  defendant  (the  uharteiei)  for  tlie 
fioight,  setting  out  in  their  deelanitioi;  that  the 
vessel  was  loaded  and  ])ideeeded  to  sea  with  her 
cat'gf)  and  delivered  the  cargo,  kc. 

Defendant  dciimrred. 

Hi/<!.  tliat  the  deniiM  rei'  sliould  he  siistidned, 

as  tic  declaration   slioweil   that  defendant  was 

not  lialile. 

Cook  ft  a/.  V.  Mi-L<o<l,  :<  X.  S.  1).,  307. 

2.1.    Charter-party— Agent's  authority - 

Ratification  of  agent'a  acts— Defendants  iii- 
slnicted  their  agents  at  New  York  to  charter  a 
shii)  to  carry  certain  goods  thence  to  Sydney, 
('.  B.  The  agents  chartered  plaiiititlV;'  ship,  and 
the  voyage  was  carried  out,  and  tile  good.s  duly 
delivered  and  received  liy  defendants.  On  the 
way  to  Sydney  the  vessel  called  at  Halifax, 
where  one  of  the  defendants,  wiio  had  pri  viously 
received  the  charter-party,  visileil  lier.  He 
was  also  present  at  Sydney  when  the  goods  were 
delivered.  On  neither  occasion  did  he  make 
any  olijection  to  tlie  freight  jiayahle  nnder  the 
charter,  lint  sul>se(iuently  refused  to  jiay  it  on 
tile  ground  that  tlui  rate  was  too  iiigh.  and  tliat 
his  agents  had  exceeded  tlieir  autliority  in  enter- 
ing into  the  charter-party  at  that  rate. 

Hilil,  that  not  liaving  made  any  ohjection 
either  at  Halifax  or  Sydney,  though  fully 
ac'iuaintcd  with  tlie  rate  of  freight  agreed  to  he 
paiil,  and  having  received  the  full  lienefit  of  the 
contract,  lie  had  thereby  ratified  it,  and  must 
fulfil  his  obligations  thereunder. 

r.oomn-  it  al.  V.  Starr  (t  al.,  li  X.  S.  1).,  430. 

20.    Charter-party  —  Entire  voyage  —  A 

vessel  was  chartered  hy  defendants  for  the  fol- 
lowing voyage,  viz. :  From  Halifax  to  M.mtreal, 
here  to  discharge  the  cargo  laden  on  hoard  and 


to  load  a  leturn  cargo,  and  thence  to  proceed  (u 
St.  .John's,  Newfoundland,  or  to  Halifax,  at  tlie 
option  of  liie  charterers.  If  ordered  to  Si. 
John's,  Newfoundland,  theii  at  said  port  to  dis- 
cluirge  cargo  and  load  a  retui'n  cargo  of  dry  tisii 
in  hulk  for  Halifax,  and  on  linal  delivery  of 
return  cargo  al  Halifax  to  eml  tiie  voyage,  tiie 
charterers  to  pay  on  tiie  return  of  vessel  id 
Halifax  the  siiU'  of  Is.  4d.  per  net  cwt.  fm 
sugar  to  .Montreal  ;  "Js.  per  hhl.  for  llour  in 
Halifax  or  St.  .John'.?,  and  from  the  lattei'  pnit 
!)d.  per  ijuintal  for  Hsli  to  Halifax.  After  I  lie 
plaintifl",  who  was  master  and  agent  of  the 
vessel,  delivered  the  cargo  at  Montreal  it  was 
agreed  lietween  the  plaintiff  ami  defendant.-., 
and  such  agreenieiit  was  indoiseil  on  the  charter- 
party,  that  in  consideration  of  tlie  sum  of  I'l.'i 
the  jijaintitf  wouhl  proceed  from  .Montreal  in 
Harhor  (iraee,  N'tl'd.,  and  load  his  return  cari;ii 
tliere,  or  at  St.  John's,  as  the  charterers  shoiilii 
direct.  'I"he  vessel  loaded  at  St.  John's  and  was 
lost  on  her  voyage  from  thence  to  Halifax. 

//ilil.  that  it  was  an  entire  voyage  andlhal 
the  plaintiff  was  not  entitled  to  recover. 

Wilkins,  .1.,  ilisMintiiiti, 
\  Liratti.  V.  S'(l''rit  a/., '2T\\i<\t\.,:\^'. 

i1.    Collision  at  sea  -While  two  vessels, 

the  (•'tiwn  and  the  £lliu,  were  approaching  llic 
harbor  of  New  York,  they  collid-jd  at  an  eaii.v 
hour  in  the  morning,  about  twelve  miles  finin 
the  shore.  I'>oth  had  their  lights  burning  briglit- 
ly  and  w  ere  visible  to  each  other.  The  A'/'Vi 
was  seriously  damaged,  but  succeeded  in  reac'.i- 
iiig  New  York,  where  she  was  owned.  Tlif 
diiioa  was  only  slightly  injured,  and  instead  nf 
continuing  her  voyage  turned  about  and  nia^Ic 
for  Halifax,  where  she  was  proceeded  against  li.v 
the  owners  of  the  E/hu.  The  evidence  was  vei.v 
voluminous  ,uid  contradictory,  but  the  mass  nt 
it  went  to  show  that  the  EUm  was  blameless. 

H'/'i,  that  the  0%  iioa  should  be  liable  for  i\k 
damages  caused  to  tlie  Ellia. 

The  auioa,  Y.  A.  U.,  '-T.'). 

28.    Collision  —  Both  parties  In   fault - 

Where  both  colliding  ves.selsare  in  fault,  iieitl.fi 
is  entitled  to  recover  damages  or  costs  from  the 
other. 

A  brigaiitine  was  heating  up  the  ohamiel  k' id- 
iiig  to  Halifax  Harbor  between  daylight  ami 
sunrise,  showing  no  ligi.  s,  and  it  being  veiy 
dark.  A  steamer  was  coming  out  of  the  liaili'H' 
at  full  speed,  not  blowing  her  whistle,  nor  ring- 
ing the  bell.  A  collision  occurved,  resultiiii:  i" 
damages  to  both  vessels,  for  which  damage^ 
actions  were  brought  on  behalf  of  each  vessel 
against  the  other. 


12G9  SHIPPING.  1-270 

Ihlil,  that   tliL'  hriuiiiitiiii'  wax,  in  tlif  wkiiii.'    iiiiiiuti'x  liffoie  tlif  ciillisinu  t'l  avniil  a  scliiHUifi- 
in  »;xliil)itin^'   no   lij,'lit.s,  luul  tliat   the  sti'atiRT    that  \\a.-i  licualiiii'il  near  liy  tin;  lli'in.     The  lnok- 
wiw  also  ill  fault  ill  going  at  full  hi»t'fil,  ami  lliat,    out  oii  hoard  the  stfaiuui'  tliil  not  puicfivi'  the 
thiireforo,  iieitliur  vessel  was  entitled  to  recover  ,  Hero  until  it  was  too  late, 
damages  or  costs  from  the  other.  //</'/,  that  althoii>,'li  it  was  one  of  those  cases 

Coiistruclion    of     Merchants'   .Shipping    Act,    in  wiiicli  tiie  two  colliding  vessels  occupied  siuli 

section  'JOS.  relative  positi-jus  that  tiie  lights  of  the  schooner 

Thf.  Cortlilin  awl  Tin  Os/n-i  i/,  \  Old.,  77-.    could  not  lie  seen  hy  the  steamer,   yet  the  speed 

of  tlie  steamer  heing  too  great  and  iier  lookout 

•29.     t'ollLslOn    -  Int'Vltable  accident     The    ''^•f^''-t've,  in  that  tlic  schooner  herself  was   not 
steamer  /.'/./((/(o//,/  whih'.-cekini.'  shelter  from  a    ii'>ticed    in    time,    the    steamer    was    lial.le    in 


damages. 

Til'  Alhnwlm,  V.  A.  1)..  --Mil. 


fearful  storm,  and  using  every  possible  pre- 
caution, unavoidalily  ran  down  and  sank  a  small 
schooner.        (In   an    action    lieiiig    In  ought  for 

damages,  SU.     (OlllsiOII   -  JtirlsdlCtiOII   -    WIU'Il   IWO 

//'/'/,   tiiat  jtldgnieiit  sliould  lie  for  defendant,  vessels,  the  Wavelet  and  I  )iuidce,  were  attemiil- 

each  party  jiaying  tiieir  own  costs.  ing  to  pass  one  auotlier  in  Halifax  Harlioi,  they 

Till    ItiihiiKHiil.  \'.  \.  1).,  1(14.  came  into  collision  under  circiiiiistancs  for  wliicli 

tiie  former  alone  was  accountalile,  and  siie  was 

30.  Collision  -  Incvltabh'  accident  -  .Vn  H'^'-^t'"'^'  i'»-'i''  "''''i^' '"  '^'in^iges.    The  fact  that 

iiicvilalile  accident  in  ).oint  of  law  is  tliis,  vi/  :-  'l'^'  Wavelet  at  the  lime  of  the  collision  \Nas  in 

that   which   the  party  charged  with  the  ottence  charge  of  a  pilot,  /(-/'/,  no  grouml  for  exemption 

could  not    possilily   prevent"  liy   the  exercise  of  f''"'"    lii'''il'ty-    |>ih-tage   not    heing  compuU.ny 

ordinary  caution,  "care  and  maritime  skill.  »"'l^''  ''"-'  l'i"viucial  Stuiuie. 

Till  Cli'ixi     V    \    1)      11.'?  Tile  collision  occurred  inside   Halifax  Hailior, 

and    llicrefore   within  the   lioily  of  the   County 

31.  Collision  -  Damages  to  wharves -"*'  """f"^-  ''",  'l^'>"ndant  put  in  an  al.solute 
Jurisdiction  of  Court -The  steamer  C\,<v,  was  appearance  wuhoiil  protestor  declinatory  plea, 
Ivinu-  at  her  wharf  in  the  Harhor  of  Halifax.  '"'»  ^'"-'  'i"^-tion  as  to  the  jurisdiction  ot  the 
when  a  storm  .,f  unsual  violence  arose  .vith  ex-  *'"'"'  "''^  ''''^''-"'^  ''>'  '"'"  "'  ""-'  '"-■'"''"-■ 
traordinary  suddeness,  there  having,  l.een  no  ^^''''-  ^''^^^  "■"'^•■-  ^1'^'  '^^^^'"t^^  -^  ^''^'l-  ^'^'I'' 
nther  indication  of  its  approach  than  .  falliiez  '"•  ^'■"'  -"  '^"''-■^-  '-"l'-  -^-  "'"  *'""•'  ''"''  '"" 
harnmeter.     .Some  a.lditional   iirecauthms  were  .i"nsdiotion  m  the  matter. 

taken  so  to  moor  her  that  she  miglit  ri^lc  out  ""    "'"''''''  ^     -^^  '*•"■'■*• 
the  storm  .safely,  Init    these   clid    not  prove  ade- 

•  laate,   and  hreaking  away  she  came  into    col-  .^^^     CoUlslOH  --  Parties    liable  -  On    tbC 

lisinu    with    several   wharves,  among  them  tiit!  ,|,,,ining  of  tiie   ■J;{rd  .laiiuary,  ISSO,  the  .Sarah 

pliiintilT's,  causing  serious  damage  tiierelo.     It  ].;    ]■\■;^^^.^■  „as  lying  to,  about  eighty  miles  south 

iiliiicaicd  in  evidence  that  other  ami  more  etlici-  ,,f  (;,_,orge"s   shoal,    iieading    northeasterly,    the 

cm  methods  might  have  heen  used  to  .secure  the  „.i„4  \,^.^^^,^  southea.sterly   and  lilowing  a  frcsli 

.steamer,  and  that  had  they  lieeii  employed  the  ,_,.^\^.      J]^^,  ,,y.^u:\\  hail  lieeu  changed  at  4  a.  m., 

prolialiilities    were    strongly   in     favor    of    her  j,,iii  i,.„|  \,^.^.^^  sliortened,  a  man  stationed  .it  the 

remaining  fast  to  her  wharf.  l„,^v  .i,,  l,,„kout,   and  one  at    the   wiieel,  whicii 

ffil'l,    tliat    she    was    liable    for    the   damage  was  lashed  liard  to  port.      Tiie  clouds  liad  begun 

''"'"-'•  to  break  overhead,  but  it  wa.s  c|uite  ilark  on  the 

Till  Clia.<i,  V.  A.  1).,  U.S.  j^,„,|^„„        -|.|,^.  Sarah   K.  Fraser  had  her  regula- 

Affirmed  on  appeal  to  tlie  I'rivy  t'ouncil,  tioii  lights  in  their  proper  jilaccs  brightly  buiii- 

V.  A.  1).,  I'J.'i.  iug,  and  two  lamps  Imrning  in  a  skyliglit  near 
the  stern.      A  liglit    was  reported  astern  a  mile 

32.  Collision  In  port -While  the  schooner  distant  accor.ling  to  plaintitl's  witne.s.ses,  and 
Hero  was  drifting  ilowit  Halifax  Hailior  with  five  or  six  minutes  befru'e  the  collision  took  place, 
tiic  tide,  bound  for  a  ]i(irt  along  the  coast,  all  As  soon  as  it  was  seen  a  glass  lantern  witli  kcro- 
lier  sails  being  set  and  tlio  regulation  liglits  duly  sene  lirightly  burning  was  exhibited  at  the  stern 
Imrning,  she  was  run  into  liy  the  steamer  Alham-  of  the  Sarah  E.  Fra.ser,  but  this  was  not  seen, 
Ina,  which  had  just  eiueved  the  harbor.  The  nor  was  the  ve.ssel  itself  seen  by  those  onboard 
niglit  was  tine  and  cleai,  and  the  harbor  perfect-  the  steamer  until  .she  approached  at  a  rate  of 
ly  calm.  The  steamer  was  coming  on  at  a  good  twelve  or  thirteen  knots  an  hour  to  witliin  five 
rate  of  speed,  and  had  altereil  her  course  a  few  or  six  hundred  feet,  when  the  helm  was  iinmedi- 


1271 


SHIPPING. 


1272 


iitfly  put  him!  tn  |)(iit  iinil  I'liginuw  MtDpiu'd,  Imt 
tfio  Into  to  iivnid  tlif  L'olliHioii. 

Hi  III,  that  the  Simliiiian  nIkiuM  liavo  Heen 
tilt'  liulitH  (if  the  Sarah  K.  Kiasur  in  time  t" 
avdiil  a  colliNioii  ;  that  thu  rate  nf  Npceil  was 
t'Xci'NKive  iiiiik'i'  tlio  circtiinstaiR'i'N,  i'N))et'ially  ax 
tlie  vessel  was  in  tiie  track  of  vessels  hound  to 
iinil  from  Atiicricaii  jMirts  ;  that  the  engines 
should  have  hecn  reversed  \  that  the  Saidiuiiin 
was  scdely  at  fault  for  tile  eollisinn,  and  that  tlie 
Sarah  K.  F'raser  was  hlameless. 

Th<   Siirillinidi,  •_»  I!,  .t  (!.,  40!) 

a.i.    rolllNion     rnrtlos  liable  -  The  Ran- 

neiet  I'aiiu'  to  author  north  of  <  leor^'e's  Island  on 
Oc'tolier  "Jlst  and  there  remained  until  Oetolier 
•il'ml.  On  Oetolier  "J'Jnd  the  Alhamlira  eanie  to 
anchor  several  hundred  yards  north  of  the  liau- 
iieret.  l)urinj,'  the  ni^'ht  a  j.'ale  eoniini,'  on  tlie 
latter  dragged  towards  tiie  Alhainhia,  lull  after 
luitting  out  a  second  and  third  anchor  was  riding 
safely  to  vviuduard  of  the  Alhanihra  and  not 
drauiriiig  towards  her.  The  Hortou  also  eaiue 
lonnclior  (ui  tlie  L'2nil  also  to  windwanl  of  the 
.Mhamhra,  and  liegan  to  drag  dangerously  near 
to  liie  .Alhauihra  which  then  paid  out  ten  fathoms 
of  faille,  hut  the  vessels  got  so  close  together 
tiiat  as  they  sheered  with  the  force  of  the  wind 
they  toni'iu'il  or  nearly  so.  The  captain  fif  the 
Alliamlira  then  feeling  his  jxisition  to  he  danger- 
ous, determined  to  change  iiis  herth  hy  steam- 
ing \\\i  to  Ijis  anchor,  ami  at  the  same  time 
hoisting  in  the  chain  with  the  steam  winch.  In 
doing  so  he  collided  with  hotli  the  other  vessels, 
and  the  evidence  was  clear  that  when  weighing 
anchor  lie  ovcriaii  his  cahle.  and  in  the  o])inion  of 
the  assessor  the  whole  of  the  sheering  that  led  to 
the  collisi<in  might  have  hecii  avoided  l>y  keeping 
a  steady  strain  on  the  cahle  while  weighing. 

ILH,  that  the  Alhamlna  was  not  justified  in 
steaming  up  on  her  cahle  to  get  her  iinchor  at 
the  risk  of  damage  to  the  neighhoring  vessels, 
and  that  she  was  wholly  to  Idaine  for  the  collision. 
Haiuii  rit,  Hortoii  iiml  AUnunlini,  2  R.  it  (!.,  '<\'2. 

m.    Col!ls!on-Pllotage-The  fact  that  the 

vessel  to  l)lame,  in  a  case  of  collision  occuriug 
within  the  Harhor  of  Halifax,  was  at  the  time 
in  charge  of  a  pilot, 

IL  III,  no  ground  of  exemjjtion  from  lialiility, 
pilotage  not  heing  compulsory  under  Statutes  of 
Xova  Scotia. 

Thi:    Wavilit,  Y.  A.  I).,  84. 

37.  Collision  -The  French  harqiie  Clem- 
entine, on  her  way  to  Halifax,  collided  with 
and  sank  an  American  fishing  schooner  on  !Si, 
George's    Rank.     The   schooner  was  at  anchor 


anil  the  haniue  sailing  at  a  fair  speed.  Tiie  n.l- 
lision  occurred  soon  after  siinriso,  and  there  was 
conflicting  evidence  as  to  the  state  of  the  wealjur, 
the  plaintill's  alleging  that  it  was  clear,  the  di'. 
fendants,  that  there  was  fog  and  mist.  A 
sutticient  look<iut  hail  heeii  maintained  on  hoind 
the  liari|ue  until  within  a  few  minutes  hefore  the 
collision,  when  the  man  on  the  lookout  \vas 
called  down  to  assist  in  working  the  vessel,  and 
hefore  he  had  returned  to  his  post  the  schooner 
WHS  struck. 

//'/'/,  that  the  hari|Ue  was  in  fault  ;  that  a 
sutiicient  lookout  should  have  hcen  niaiiitaiiicd 
throughout,  and  that  she  was  therefore  lialile  in 
damages  and  costs  of  suit. 

Tlu'  i|Uestion  of  jurisdiction  having  heeii  rai-.i  d 
iis  neither  of  the  vessels  were  owned  in  lirili.-ii 
])ossessioils, 

//'/'/,  that  the  Court  had  full  jurisdictinii  in 
the  matter. 

Till-  Cli  nil  ii/iiii ,  V.  A.  D.,  Isii, 

:\H.    Collision  in   |)ort    The  S.  H.  M.  A. 

Starr,  while  jiroceeding  down  the  hailior  of 
Halifax,  came  into  collision  with  the  scIioiiiut 
Kditii  Wier.  The  schooiuM'  was  lying  at  a  wharf 
ill  sucii  a  ]iosition  that  thehowsprit  and  jili'iuuni 
projected  some  twenty-tivc  feel  licyoml  tlie  tad 
of  the  wharf,  thereliy  violating  the  Harhor  regii- 
lalious.  The  collision  would  prohiihly  not  liiivo 
occurred  hut  for  another  schooner  which  had 
been  lying  outside  the  Kdilli  Wier,  and  uliicli, 
just  previous  to  the  collision,  had  broken  ground 
and  thus  narrowed  the  channel  down  whicli  the 
steamer  had  to  pass. 

Ifilil,  nevertheless  that  as  tlie  Kdilli  Wiur's 
jiositiou  was  contrary  to  ihc  Harbor  regulations, 
she  shiaild  be  liable  for  all  ilauiages  to  the  .M. 
A.  Starr,  with  costs  of  suit.  The  rule  as  to 
inevitable  accidents  slated. 

Si  i:  .sii/irn,  -Ui. 

Till  Hiliil,   Wiir,  V.  A.  1).,  •-•:!:. 

3ft.    Collision -The  We're  Here  came  to 

anchor  in  the  Harbor  of  Halifax  on  the  night  nt" 
November  oth,  using  only  one  anchor.  On  t lit' 
fith  the  Ren  Nevis  ancliorod  beside  her,  ami  it 
was  allpged  in  too  close  |)roximity.  On  t'lt- 
morning  of  the  7tli  both  vessels  were  apiiareiitly 
securly  moored,  and  the  ca])taiii  of  the  former 
went  ashore  leaving  six  men  on  board,  lu  I'lC 
cfiuise  of  the  morning  a  gale  sprang  up  and  the 
\Ve'rc  Here  not  being  adeiiuately  moored  she 
collided  with  the  Ren  Nevis.  The  men  on  hoard 
the  former  vessel  did  not  act  as  experienced 
seamen  should  have  done  under  the  circum- 
stances, and  her  captain  made  no  attempt  to  get 
on  board,  while  no  neglegence  or  want  of  sea- 
manship was  proved  against  the  Ren  Nevis. 


l'27'.i 


SHIPPING. 


1274 


//'III,  tliHl  jiiclgliiclit  •■liiiiild  III' flili'lid  t'ciitliii 
lliii  Xivis  fur  tliu  cliiiiiiit't'M  iiml  cii.st.H. 

Tlo    II'.  V.  ll>n,  V.  A.  I).,  I. IS. 

4U.    I'unvcniloii   or  181H    imcs  relating 

to- 

Sn  (OWKMIOX  OF  1S18. 

41.  l'08tii    Nceiirlty  Tor  In  Vlee-Adiniralty 

Court—Wlifi'f  llic  |(laiiititl',  in  iiii  iictimi  on  it 
liiittiiinry  ImmicI,  was  lusiileiit  nut  nf  tliu  juris- 
ilitliou  of  thu  C'duit,  iiltli'iugli  pri'sunuilily  a 
Hi'itish  sul)joc't, 

//(/(I,  that  iiu  apijlioalidU  lifiiig  niadu  tlieiofin 
111'  should  liu  lecjuiifil  to  givu  sucurily  for  costs 
nil  till'  (It'feiuhiiit  uiaking  an  atlidavit  of  merits, 
ami  of  tilt'  (k'foUL'f  lioiiig  lionajiih. 

Th<  Ahlui  Alio,  Y.  A.  1),,  111'. 

42.  Importation-Clearing  out  to  Iiost<»n, 

L'liUriiig,  tia<liiig,  .incl  cluariiig  froui  tiicucc  to 
Hidifax,  h'iil  au  iuiimitation  from  IJostnu. 

Thi.  Union,  Stuwart,  SVS. 

43.  Importation -Wliat  conNtitiitcs  im- 
portation under  the  Revenue  Laws— It  lias 
lii'cii  decided  over  and  over  again,  that  in  order 
111  constitute  an  imjiortation,  it  is  not  necessary 
tliiit  the  vessels  should  come  to  a  wharf. 

The  meie  fact  of  coming  into  |)ort  with  goods 
on  hoard  is  [irima  Jhrii  evidence  of  an  importa- 
tion and  is,  eonsutiueiilly,  clear'y  a  viohitiou  of 
SL'i'.  'I  of  ,Sl  Vic,  c.  15,  where  the  port  is  not 
a  port  or  place  of  entry,  and  the  goods  are 
<liUialile. 

A  vessel,  while  proceeding  from  the  island  of 
.St.  I'icrre,  which  i.s  a  colony  of  France,  to  New- 
fiiiuidland,  put  in  at  Asjjy  Hay,  in  the  island  of 
Ciipe  Hreloii,  the  said  Aspy  Hay  not  lieiiig  a 
lioit  of  entry,  without  necessity  from  stress  of 
wi'ather,  and  having  dutiable  goods  on  boaril, 
Minni  of  which  goods,  the  evidence  went  to 
.■•how,  had  been  there  landed,  and  no  duty  at 
any  time  paid  thereon. 

//(/(/,  that,  under  sec.  !)  of  'M  N'ic,  e.  0,  the 
ajitain  of  the  vessel  had  incurred  the  full  pen- 
iilty  of  i!S(IO,  imposed  by  that  section. 

Tilt  Minnie,  Y.  A.  D.,  Go. 

44.  Jurisdiction-A  British  Court  lias  no 

jurisdiction  to  punish  a  foreigner  for  an  ort'ence 
CDinniitted  on  the  high  seas,  in  a  foreign  ship, 
against  a  Hritish  subject. 

Queen  v.  Khimian,  James,  62. 

45.  Jurisdiction  Of  Court  — Two  out  of 

tlifee  proniovents  shipped  at  Bermuda  on  board 


the  ship  lilielh'd,  a  blni.kade  iiiniii'r,  for  the 
round  voyage  from  Heiiuuda  to  Wilmington, 
Nortli  ( 'aidlina,  and  theme  to  Halifax,  N'ova 
.Scotia.  'I'he  lemaiuiiig  promovenl  shipped  at 
Wilmington  in  room  of  one  of  the  otheis.  No 
ship's  articles  were  signed,  but  there  was  evidence 
to  show  that  the  master  had  contracted  to  pay 
toeadi  of  the  promovents  certain  specilied  sums 
in  three  ei|Ual  instalments.  'I'iie  contract  Wi'.s 
id)sohlte  as  to  two  of  the  instalments,  iind  as  to 
the  third  there  was  a  condition  that  it  was  to  be 
paid  oidy  if  the  claimants'  conduct  were  satis- 
factory. 

liihl,  1.  That  this  was  not  an  ordinal}  en- 
gagement for  seamen's  wages,  but  u  sjiecial 
contract. 

'1.  That  previous  to  the  Admiralty  L'ouit  Act 
of  lS(il,  -lA  Vic,  cap,  Kt,  the  High  (.'mirt  of 
Admiralty  had  no  jurisdiction  over  such  con- 
tracts. 

.').     That  this  Act  did  not  e.xteud  to  the  Vice- 
Admiralty   Court,  nor   were  the  provisions  re- 
specting special  contracts,  embniceil  in  its  tenth 
section,  extended  to  those  (.'ourts  by  the  Act  of  | 
l.SO;),  ;{((  Vic,  c  '2\,  sec  10. 

4.  'J'hat  although  the  commission  foinierly 
issued  to  the  \'ice-Ailmiralty  ,Judge  empowered 
him  "to  hear  and  determine  all  cau.ses  accord- 
ing to  the  civil  and  maritime  laws  and  customs 
oi  our  High  Court  of  Admiralty  of  Kugland," 
yet  this  power,  like  some  o  hers  assumeil  to  be 
bestowed  by  the  coliiuiission,  is  freciuently  in- 
operative. 

And  that  therefore  this  Court  has  no  jurisdic- 
tion in  cases  like  the  present. 

Htlil,    alio,    that    allhougli     tlie    lespondents 

were  bound  to  have  objected  to  the  jurisdiction 

('/(  limine  hy  appearing  under  protest,  still  that 

where  the  Court   is  of   opinion  thai   it   has  no 

jurisdiction  it  will  not  only  entertain  the  olijec- 

tion  at  the  hearing,  but  is  Ijouml  itself  to  raise 

it. 

The  Cilij  of  PihrstiHiy,  Y.  A.  1).,  1  ; 

1  Old.,  814. 


46.    Jurisdiction— Possession,  suit   for— 

J.  H.,  when  building  a  small  vessel,  was  fur- 
nished with  supplies  therefor  by  DeL.,  who  put 
into  the  vessel  on  the  whole  a  larger  sum  than 
J.  H.  did.  Afterwards  it  was  agreed  that  Del... 
should  own  half  the  vessel,  aiul  in  addition  to 
this  he  took  a  mortgage  from  J.  H.  previous  to 
tlie  completion  and  registry  of  the  vessel.  It 
was  filed  at  the  Custom  House,  but  could  not  be 
registered,  as  there  was  no  registry  of  the  vessel. 
On  her  completion  the  vessel  was  registere<l  in 
the  name  of  J.  H.,  and  no  mention  made  of  DeL. 
as  part  owner.     DeL.  subsequently  sold  her  to 


12 


07 


<•» 


SHIPPING. 


1270 


iiiiil',,  «liii  it'^i»ti'i'«il  UH  ipwiicr  iiiidfi'  lii'<  liill 
lit  «iili',   1111(1    tlii'ii   .1.11.   iiistitiitrd  |iriuiicliiigH 

II^MillNt    tlll'lll    lllllll    to    ri'^llill    IMIHITINilill, 

//'/'/,  that  tlif  ('(imi  iMiiiM  nut  (.■uiuol  tlio 
i('i.'i»<tiit'M,  ii()i'  Di'ik'r  II  mill.',  no  the  paitii'M  liiul 
;i|i|ilii.'cl  til  till'  wrong  Cimt'l ;  Imt  J.  U.  aimI 
l)i'l..  Wirt'  strniij.'ly  iulvisi'il  tli.ii  tlicy  hIhuiIiI 
li.ivt'  nil  mc'dunt  laki'ii,  to  asci'itiiin  tlif  imioiiiitM 
ri'upfctivt'ly  <liu'  tliiin,  ami  ^limilil  !>ell  tliu  Vfs- 
Ntl  to  tlic  lii'st  ailvaiitiif,'!!. 

Th    li:  /■:.   Wio;   V.  A.  1).,  14.'.. 


47.    ,liirlK(lkll()ii  of  Vice  -  Adinirall)  Court 

—  Siilvaye  a  lien  U])on  jjoodrt  sold-^WIu'ic  tliu 

V('«M'l  saM'il  was  Inoiinlit   iiilo  ii  poit   in  Nuw- 

t'nuniUanil,  ami  tlit'ii  sold  ;  lint  a  iioition  ot'  lii't' 

niati'i'iuls  wait   lii'oiiglil    li.    Halifax,    and    tliuru 

jn'oi'i'i'di'd  against  liy  two  of  tim  salvors  who 

liad  not  lii'fn  jiiiid  in  Xt'M  foiimlliind, 

Jl'lil,   that   till'  Court   had    full   jurisdiction, 

salvage  constituting    a    lien    upon    tiie    goods 

saved. 

TIk  Florii,  V.  A,  I).,  4s. 


48.  Jurisaivtioii  ui'  Vice-.idmiralty  Court 

No  seaman  who  is  em|iloyed  for  a  voyage  or 
enuife'i'i''^'"'  wliicli  is  to  tcrniinate  in  the  United 
Kingdom  can  sue  in  a  ("olonial  Vice-Admiralty 
Court  for  his  wages,  unless  discharged  as  directed 
by  the  (ieneral  .Merchant  .Seaman's  Act.  The 
Admiridty  Court  has  no  jurisdiction  in  a  suit  to 
recover  seaman's  wages,  unless  the  sum  claimed 
amounts  to  at  least  fifty  poinids  sterling. 

Dull.  V.  Skill  Vt/ocity,  James,  .S'JO. 


40.    Jurisdiction  of  VIce-.idiniralt}  Court 

—Suit   for   penalties   for    breach  of  Revenue 

L,.^^vs_The   defendant  and    three  others  being 

discovere<l  in  the  illegal  distilling  of  spirits,  the 

materials   and   apparatus  used   by    them   were 

seized.     Xo  claim  having  been  put  in  for  them 

they   were  condemned,   and   proceedings    then 

taken  to  recover  the  penalties  inijiosed  by  the 

Act.     The   defendant  appeared  under  pnjtest, 

denying  the  jurisdiction  of  the  Court. 

//lid,  t'nat  the  Court  had  full  juriadiotion  in 

the  matter. 

Qiifii  V.  Flint,  Y.  A.  D.,  280. 

.50.    Jurisdiction  of  Yice-Adniiraity  Court 

—Supreme    Court    issuing    prohibition    to  — 

Xhe  lei'islation  of  tlie  Dominion  Parliament 

(.31  Vic,  c.  8,  s.  156).  givinj;  the  Vice-Admiralty 
Court  jurisdiction  in  cases  for  the  collection  of 
penalties  for  illegal  distilling,  is  ultra  mrts,  and 
the  Vice- Admiralty  Court,  as  an  inferior  Court, 


may  be  rent  rained  by  ilic  , "Supreme  Court  by  wiit 
of  prohibition. 

.ltt'i/-tii  III  rnl  ii/<-'iiiiiii/ii  V,  Flint  1 1  lit ., 

;«  u.  &  (i.,  4.-i;(. 

Oil  ft/ijiinl  to  Ihi'  Sii/inini  Court  o/  L'liiiinl/i, 
III  III,  that  NO  much  of  Hei'.  \M\  of  ',U  Vic,  c.  s 
(Mominion  Inland  |{evi'nue  Act,  IS<I7),  as  glvcH 
the  ( 'om  t  of  Viie-Adniiralty  jurisdiition  in  casoH 
for  the  collcrtjon  of  penalties  for  illegal  distdl- 
iiig,  is  iiitrr.  rin  i.  The  judgment  of  the  .Supriiuf 
Comt  of  Xova  .Scotia  ri'versed. 

A/l'i/l/i  III  ml  i{/' Ciniiiiln  v.  Flint  it  nl,^ 

li:th  Jiniiiiirii,  ISS),  Cas.  Digest,  ;t'J4  ; 
4C.  L.  T.,  117. 
Si  I   siijirii,  .//,  .;,;,  .;/",  uml  infra,  ')'.i. 

31.    Master  also  part  owner    The  fact  of 

a  master  being  also  a  piii  I  oMiitr  does  not  aliicl 

his  right  to  recover  against  the  vessel  for  wum'H 

due  him. 

TIf    Aiii-it,  V.  A.  l».,.-)4. 

'ii.    Master    Autliorit)  to  bind  owners- 

I'laintitl'sued  defendant  for  the  price  of  a  li.iml 
of  lieef  sup))lied  by  him  to  the  niaslur  of  defeml- 
ant's  vessel.  The  beef  was  shown  lol)e  necessary 
for  the  vessel,  but  it  a|)peared  that  defendant 
had  an  agent  at  the  place  where  it  was  pii.- 
cured  who  might  have  been  re((Uested  by  the 
master  to  8up])ly  or  procure  the  beef  for  liiiii. 

Ill  III,  that  in  the  absence  of  evidence  to  show 
that  the  master  had  made  such  a  reipiest  to  the 
agent,  or  that  he  had  ;-.]iecial  authority  to  hind 
the  owner,  plaintiff  could  not  recovei. 
I'ltiiiniH  \:Croil>!/,'20  N.  .S.  K.,  (S  R.  &  (i.),  44(1; 
!  0  C.  L.  'i'.,  197. 

53.    Master  -  Dismissal  of  —  Plaintiff,  In 

1S74,  agreed  with  a  number  of  Halifax  mercliants 
to  subscribe  !<4^HJ{)  towards  a  steamship  enter- 

.  prise,  and  assist  in  getting  a  suitable  ship,  pro- 
vided he  should  be  master.  He  was  appointed 
master,  and  the  wages  were  fixed  at  .*1.2(W. 
The  company  was  incorporated  in  1875,  by  Act 
of  the  Dominion  Parliament,  and  the  plaiutitf 

'  received  stoirk  to  the  amountof  his  contribution. 

i  After  running  for  some  time,  it  was  found  that 
the  enterprise  was  sinking  money  rajiidly,  and 
in  1870  f.  Jiuw  arrangement  was  entered  into,  liy 
which  the  plaintiff  was  to  supply  the  ship  with 
men,  and  provisions  for  the  passengers  and  crew 
and  sail  her  as  commander,   for  !?9(K)  a  iiiontb, 

:  afterwards   increased   to  .S930.     The  ship  had 

!  been  originally  accustomed  to  remain  at  St. 
Pierre  forty-eight  hours,  but  the  time  was  afier- 

:  wards  lengthened  to  sixty  hours  by  the  company, 
yet  the  plauititf  insisted  on  remaining  only  forty- 
eight  hours,  against  the  express  directions  of  tlic 


I -277 


SHIPPlNt}. 


127s 


('ciiii|iiiiiy  H  iiK<'iitH  III  St.  I'ii'iii',  and  wiin  ntlii'i- 
\Ms(>  (liMiilii'ilii'iit  til  the  iigcntM,  luiil  ti'i'iiU'il  tlii'iM 
witli  ^I'liNu  iiiMolfiH'c,  in  i'iinHi'(|UL'nct'  of  wliiili  lu' 
WiH  ilJNniiMML'il  friini  tlii!  Hitrvicn  of  tlie  t'onipiiny, 

TluTc  WiiH  11  viTiliit  iif  .><'_',(HH)  foi'  pliiiniitr. 

//'/'/,  that  tliL- iliH)iiih<Niil  waM  jiiHtitiiililc  ;  lliiit 
tlic  plaint  ill'  wax  not  a  part  ownur  iif  tliu  Mliip, 
iiiiij  I'lmlil  not  t'Xi'iciHc,  inilopcniU'iitly  <if  tliu 
ml  poratiiin,  any  powtT  wliatt/Vff  uvit  tiic  piii|)- 
I'lty  lit'  the  rimipany,  iiaving  iki  intiTt-'nt  what- 
I'vci'  in  tliu  Nhip,  Imt  only  in  tlif  Htoi'i<  o|  thu 
company,  uiid  tiiu  caite  iniiNt  tlii-ruforu  lie  con- 
siiK'lt'il  an  thf  oiilinary  ^■a>^^.^.  of  a  iiiaNlcr  ilw- 
iiiInsi'iI  liy  tin.'  owiii'iM. 

>ii'  W.  N'ouii),',  ('.  .1.,  (I  i  HI,  III  ill' I,  III  III,  ihiit 
vvlilli'  tho  pl.iintitr  woiiM  liavo  had  no  it'iliLv-iM 
Ii.kI  iiu  lifiii  in  i\w  onliiiaiy  position  of  ii  sliip- 
iii;i>lrr  diHinisMed  by  a  majority  of  tiic  owiii'is, 
his  position  was  tiiat  of  u  part  owner,  and  iii' 
Mii»  riilitlfil  to  I'oiiipi'iisation. 

Iliiililjhril  V,  Amjlo-Fri  ni-k  '■>lniiiiHlil/i  Co,, 

•J  n.  &  (;,,  '>4  ; 
1  ('.  L.  '!'.,  .Vi4. 

Dii  fi/i/iiiit  h)  till  .Sii/ii-i  iin  Ciiitii  o/  Cdiitiiln, 
Hi  III,  l.st,  that  I'VL'ii  if  the  di.siiiissial  had  iicuii 
wmiij^fni,  thu  daniagu.s  were  I'xce.sxivc.  and  the 
ca>e  Nhould  go  liaek  for  a  new  trial  on  this 
ground.  LJnd,  /«  /■  Uitehie,  (.'.  ,J.,  and  Kouinier 
iind  (iwynne,  .J.).,  that  the  faet  of  the  master 
lii'iiig  a  sliareholder  in  the  eor]ioration  owning 
the  vessel,  had  no  hearing  on  the  ease,  and  that 
It  wiis  proper  to  grant  a  new  trial  to  have  thu 
nmstioii,  as  to  wiielher  the  plaintitl'so  acted  as 
til  j\istify  his  dismissal  hy  liie  owners,  stiliniitted 
to  a  jury,  or  a  Judge,  if  ease  he  tried  without 
a  jury. 

Ci'uilil/onl  V.  Aiii/lo-FniK'h  S,  .S'.  Co., 

9  s.  c.  R..  ms ; 

2C.  L.  T.,'2i)U. 

U.    Master— Dismissal  of  master  or  ship 

—Insolvency  of  the  owners  —  The  ship  .Jean 
•Anderson,  owned  at  Cliarlottetown,  P.  E.  I., 
was  sold  by  the  agent  of  the  owners  at  Liver- 
p'l'il,  Kiigland,  to  the  claimant,  who  agreed  to 
g'l  out  to  Charlottetown,'  take  charge  of  the 
vessel  as  master  and  bring  her  to  England,  for  a 
I'titain  monthly  rate  of  wages.  .He  accordingly 
cunie  out,  and  having  been  put  in  ciiarge,  pro- 
ceeded in  her  to  Pietou,  N.  S.,  where,  on  the 
"til  October,  1878,  she  was  attaclied  by  the 
official  assignee,  the  owners  having  gone  into 
iusdiveiioy.  The  claimant  remained  on  board, 
not  being  recognized  by  the  assignee,  yet  not 
lioiiig  dismissed  until  the  '22nd  April  following. 
On  bringing  suit  for  his  wages  up  to  that  date, 
it  WHS  contended  that  the  insolvency  of  the 
owners  had  ip^o  facto  put  an  end  to  the  fimc- 


tious  of  the  master,  ind  was  ri|Uivaleiit  to  a 
dismissal. 

//«/»/,  that  tile  master  having  bei'U  in  legal  jios- 
MeHMioti  of  the  ithip  lioth  as  inaHter  and  )>urchaser, 
and,  not  having  lieeii  dismissed  liy  the  assignee, 
was  entilled  to  his  Wages  to  tile  full  extent  of 
his  claim,  with  costN  of  Huit, 

'/%  Jkiii  Aiiitn-^oii,  \.  A.  I)..  '-'H. 

5.1.    Master    Immoralit}  orintemiieraiu-e 

of  Master  not  alone  siilliiient  ground  for  dis- 
missal. 

Thi   III /la  M  nihil,  \.  A.  I).,  •_••_••_', 

.10.    Master  of  vessi>i  (letaiiiint;  one  ol'  tlie 

crew  -Action  for  fal.se  imprisonment  'I'lie 
master  of  a  steamer  lying  in  Halifax  harbor, 
iiaviiig  cause  to  suspe<'t  plaint  itl'  of  steiliiig,  and 
having  |irociiied  warrants  to  lie  issued  against 
him,  confined  the  jiliiintill' while  the  search  was 
being  made,  in  order  to  prevent  him  from  eom- 
municating  with  the  rest  of  tlii'  ciew.  .\ii 
action  for  false  imprisonment  waslironght. 

Ilflil,  that  the  master  had  acted  within  tlie 
scope  of  his  authority. 

l.iiih  V.  Ti-oti,  4  K.  .'c  (;.,  l'_'i». 

57.    Master-Sale  of  vessel  by— 

On  appcnl  la  ihi.  I'riri/  Coniiril, 
Hild,  that  the  muster  of  a  vessel  has  no  jjower 
to  sell  her  so  as  to  atl'cct  tlie  insurers,  except  un- 
der circumstances  of  stringent  necessity  ;  such 
circumstances  as,  after  .sutlicicnt  examination  of 
her  condition,  after  every  exertion  in  his  power, 
within  the  means  at   his  disposal,  to  extricate 
her  from  peril  or  to  rai^c  funds  for  the  repair, 
leave  him  no  alternative  but  to  sell  her  as  she  is. 
Cuhijjuid  Marina  Intur  uirt  Cu.  v.  liartiaux, 
L.  R.,  6  1'.  C,  310; 
82  L.  T.,  .-JlO. 

.58.    Master    Sale  of  wrecked  vessel  by— 

j  Moral  necessity  is  sutlicient  to  justify  a  master 
in  selling  a  sliipwrecked  vessel,  and  the  exist- 

j  ence  of  such  necessity  is  a  (]uestion  of  fact  for 
the  jury. 

It  is  not  absolutely  necessary  in  such  a  case 
that  there  should  be  a  survey  of  the  vessel  be- 
fore the  sale,  nor  that  such  sale  should  be  by 
auction,  though  both,  when  they  can  be  had,  are 

'  prudent  and  proper  steps. 

\      The  title  to  a  shipwrecked  vessel  can  be  trans- 
ferred without  bill  of  sale. 

Oranije  ct  al.  v.  McKay,  1  Old,,  444. 

59.    ^Master's  wages  and  disbursements- 

The  plaintiff  claimed  a  sum  for  wages  up  to  the 
term  of  his  dismissal,  and  a  further  sum  under 


1279 


SHIPPING. 


12h0 


a  special  contract,  whicli  he  alleyed  had  heen 
made  111)011  Ids  entering  into  tlie  service  of 
defendant,  but  of  ivhicli  lie  failed  to  produce  any 
evidence.  The  defendant  paid  tlie  Hrsi  sum  into 
Court,  having  tirst  tendered  it  <.•>  plaintiff. 

Held,  thiit  there  should  be  judgment  for  de 
feiidant,  with  costs. 

<^t(ai:r< ,  as  to  the  jurisdiction  of  the  Court  to 

in(|uire  into  the  special  contract  if  the  plaintiH' 

had  In-ought  forward  any  evidence  in  support  of 

it,  tiie  contract,  if  any,  having.;  been  made  in 

Kn"land. 

The  Pe&ris^,  Y.  A.  1).,  'HiT^. 

60.  Master-Wases  of -The  master  of  a 

vessel  having  brougiit  an  action  against  the 
owners,  claiming  a  large  lialance  due  him  for 
disbursements  and  wages,  they  pleaded  inaccur- 
acy in  the  charges,  fraud  and  misnianagement  of 
the  vessel,  but  produced  no  evidence  in  support 
of  their  charges  against  him.  The  master's 
accounts  l)eing  very  complicated  were  referred 
by  the  Court  to  competent  persons  with  the 
concurrence  of  lioth  parties  to  the  suit,  and  the 
referees  after  a  thorough  examination  reported 
in  favor  of  the  master  to  the  extent  of  two-thirds 
of  his  claim.  To  this  report  the  owners  tiled  nu- 
merous objections,  alleging  fraud,  etc.,  as  before. 
H(l(l,  that  in  the  absence  of  direct  proof  of 
collusion  or  fraud  on  the  part  of  the  master 
the  report  must  be  contirined.  Where  in  a 
(piestion  of  accounts  and  disburjements  a 
tliorougldy  competent  person  has  been  selected 
as  referee  with  the  approval  of  both  parties, 
and  he  reports  thereon  after  a  full  exami- 
nation, those  who  would  take  objections  to  such 
a  report  are  bound  to  prove  their  oljjections 
by  clear  and  satisfactory  evidence,  for  it  will 
not  l)e  overruled  unless  there  be  an  overpower- 
ing case  made  against  it  which  ohall  satisfy  the 
mind  of  the  Court  that  it  ought  not  to  be  main- 
tained. 

The  Jamt'<  Fraser,  \.  A.  D.,  159. 

61.  Master— Wages  of -The  master  of 

this  vessel,  who  was  also  a  part  owner,  instituted 
proceedings  in  the  Court  of  Vice  •  Admiralty 
against  the  ship,  to  recover  a  balance  of  wages 
due  him. 

Held,  that  the  Court  could  entertain  his 
claim,  and  that  the  fact  of  his  being  a  part 
owner  did  not  affect  his  right  to  recover. 

The  plaintiff  had  accepted  a  promissory  note 
from  three  of  his  co-owners  for  the  amount  he 
now  claimed,  the  note  never  having  been  paid. 

Held,  that  this  did  not  take  away  his  lien 
upon  the  ship,  although  sold  to  and  paid  for  by 
a  third  party  in  ignorance  of  the  debt. 

The  Aura,  Y.  A.  D.,  54. 


62.  Master's  wages -Promos ent  riaiiiifd 

a  balance  due  for  wages  and  disbursciiient.s,  tn 
which  the  defeiulant.-*  pleaded  a  set-oti'  for  nioiiev 
dejiosited  liy  promovent  with  agents  of  tlie 
vessel,  which  was  lost  to  the  owners  tlirougli 
the  absccmding  of  one  of  the  agents  and  tiiuii- 
failure.  There  was  no  charge  against  him  of 
corrupt  motive  or  improper  dealing,  but  tiio 
owners  sought  to  make  him  responsible  for  tlu 
default  of  the  agents,  who  had  theretofore  lietii 
employed  for  the  ship. 

//'-/(/,  that  the  deposit  of  the  money  while  in 
port  with  the  known  agents  of  his  emplnyci', 
was  not  only  justifiable,  but  what  the  master, 
ill  common  prudence,  was  bound  co  do,  and  tiiat 
the  judgment  shouhl  lie  for  him  with  costs. 
The  cases  as  to  the  forfeiture  of  wages  and  tlie 
liability  of  masters  reviewed. 

Th<  Alixaiidtr  Williams,  Y.  A.  I).,  •JIT, 

63.  blaster's  wages-Thc  master  of  this 

vessel  brought  action  for  an  alleged  balance  due 
him  for  wages  and  disbursements.     It  ajipeareil 

'  from  the  evidence,  though  it  was  not  alleged  in 
the  pleadings,  that  he  had  an  interest  in  the 
vessel  as  part  owner.  While  in  conimand,  he 
had  been  guilty  of  gross  immorality  and  iiitcin- 

'  perance,  evidence  of  which  was  produced  at  the 

.  hearing  on  the  part  of  the  defendants,  but  tlie 
immediate  cause  of  his  dismissal  was  dissatis- 
faction as  to  his  dealings  witii  the  vessel's  earn- 
ings. The  matter  finally  resolved  itself  into  a 
mere  iiuestion  of  account,  and,  upon  an  adjiist- 

■  nient  of  accounts,   it  was   held  that   judgment 

i  should  be  for  the  ilefendants. 

'      Semhh,    that   the   plaintiff's   dismissal  couM 

'1  not  have  been  justified  on  the  ground  merely  "f 
immorality  or  in  :eniperance. 

The  IMIa  Miulije,  Y.  A.  D.,  •-'-'•.'. 


64.  Necessaries— Arrest  of  vessel  for- 

The  Emma,  a  small  vessel  owned  in  New  Unin 
'  swick,  being  much  out  of  repair  wlien  in  Nova 
Scotia,  and  her  captain  having  neither  iiiniiey 
,  nor  credit,  the  plaintiff  agreed  to  furnisli  sup- 
plies, which  were  accepted  by  the  workmen  in 
payment  of  their  wages,  and  the  reiiuired  repairs 
I  were  thus  effected. 

j      Subsequently,  not   having   Ijeeii  paid,  he  ai- 
;  rested   the  vessel  for  necessaries  supiilied,  w 
owner  being  domiciled  within  the  I'roviiice. 
/feld,  that   he    was   entitled    to   recover  tlie 

amount  of  his  claim. 

The  Emma,  Y.  A.  1).,2>S1' 

65.  Owner  -A  party  taking  a  register  of 

a  new  vessel  in  his  own  name  as  owner  for  tiie 
purpose  of  securing  a  debt  is  not  lialde  for  sup- 


1281 


SHIPPING. 


1282 


(.lies  fiii-iiislied  to  the  vessel  on  the  credit  of  the 
lit'iittiuiiil  owner  and  while  in  jiis  possession. 

Ii'u.s.se/i  V.  Marshall,  Jiuiies,  330. 

m.  Ownership-Evidence  of-Xecessarles 

-U'iiere  tlie  managing  owner  and  the  master  of 
a  .sliip  order  necessaiies  for  tiie  ship  on  credit, 
tlif  owners  are  lial)le.  I'lie  certificate  of  regis- 
try is  presumptive  evidence  of  the  ownersiiip. 
(Set'  4th  R.  .S.,  cap.  06,  sec.  31.) 

Smith  V.  Fnlfoit  ^/  nl.,  2  R.  &  C,  22ri. 


sails  when  tiiey  were  puichased,  but  stated  that 
he  had  settled  with  MuR.  for  them  aliout  a  year 
after,  although  he  had  never  authorized  McR.  to 
procure  them.  Defendant  called  no  witnesses, 
and  the  jury  found  for  liiin. 

fff/il,  that  there  was  no  ground  for  disturliing 
tlieir  verdict. 

/i/nrk  ff  nl.  V.  Hallilinrfoii,  W  N.  S.  I).,  'JOT. 


«4.   Owners-Liability  for  necessaries— 

Necessaries  supplied  to  a  ves.sel  fitting  for  sea  on 
the  order  of  one  of  several  pait  owners, 

H<l<l,  that  the  other  owners  are  liable,  unless 
they  show  that  an  e.xclusive  credit  was  given  to 
the  part  owner  ordering  the  goods. 

Action  against  seven  defendants  as  part  own- 
eis.  Verdict  against  two  only  sustained  under 
i'riiot.  Act,  s.  40,  tile  evidence  of  ownership  of 
tlie  leniaining  defendants  being  insufficient  to 
satisfy  the  jury. 

Cohl,  V.  Turutrtt  at.,  James,  ;{32. 

68.   Owners-Liability  of-In  the  absence 

I'f  legislative  enactments  of  a  restraining  char- 
HCter,  a  railway  or  steamboat  company  may 
impiise  such  terms  upf)n  the  pul)lic  as  to  exempt 
tiie  (.oinpany  from  responsibility  f(jr  injury, 
lidwever  caused,  including,  tlierefore,  gross  neg- 
lii'eiioe,  and  even  fraud  or  dishonesty,  on  the 
|iii't  of  their  servants.  . 

Dndioii  V.  The  Grand  Trunk  H'y  Co., 

•2N.  S.  I).,  405. 

««.   Owner— Fart  owner-Where  a  part 

I'wiier  of  a  vessel  sold  iiis  8hare  to  the  other 
rk'iit  owner,  l)ut  no  liill  of  sale  was  executed, 
ii"i  was  any  entry  of  the  transfer  made  on  the 
iiL'i.^ter, 

//'/'/,  ill   an  action  brought  against  liini  for 

l'*s  and  non-delivery  of  iion  shipped  on  boani 

tlie  vessel  after  such  sale,  that  he  was  not  lialile. 

Foir/ir  V.  /ioriten,  ("ochran,  7J). 

tO.   Owner-Part  owner,  liability  of,  for 

goods  supplied  vessel— Action  for  the  cost  of  a 
•tt  of  sails  furnisiicd  a  vessel  of  which  defendant 
«iis  part  owner,  and  one  McR.,  master.  Plain- 
'itl>  had  a  private  account  with  McR.,  and  in 
liitir  leilger  the  charge  for  the  sails  appeared  in 
'liiit  account.  They  had  no  separate  account 
i'amist  tlie  vessel,  and  it  seemed  that,  on  McR's 
wnning  insolvent  some  time  subsequently,  they 
'*1  received  a  dividend  upon  his  whole  indebted- 
'**8,  including  the  charge  for  the  sails.  I'lain- 
'ilfs  called  defendant  as  a  witness,  and  on  exam- 
*'i'm  he  denied  that  the  vessel  required  the 
41 


71.    Keplevin   of  vessel-U.  S.  and  B. 

and  F.  S.  procured  supplies  from  parties  in  .St. 
John,  N.  H.,  and  Halifax,  \.  S..  to  be  used  in 
the  construction  of  a  vessel  wiiicli  after  her  com- 
pletion was  registered  in  the  name  of  15.  S.     To 
tlie  parties  in  (St.  John,  \V.  .S.,  and  to  those  in 
Halifax,  H.  ,S.,  who.se  liame  alone  appeared  upon 
the  registry,  was  representeil  as  owner.     Actions 
were  brought  by  the  St.  Jolin  creditor.s  against 
\V.  .S.  for  the  goods  supplied  on  his  credit,  and 
judgments  obtained  and  executions  issued,  un- 
der which  the  vessel  was  levied  upon  and  sold 
as  the  property  of  \V.  S.     While  the  vessel  was 
I  in  the  custody  of  the  Sheriff,  and  prior  to  the 
,  sale,  B.  S.  executed  a  bill  of  sale  in  the  form 
required   by   the   Act   to   plaintiff,    one   of  the 
Halifax   creditors,    who   immediately    had   the 
same  registered  and  received  a  formal  delivery 
of  the  vessel  from  B.  S.     'i'he  Sheriff  sold  all 
tiie  interest  of  W.  .S.  in  the  vessel  to  defendant 
and  delivered  a  bill  of  sale  of  the  same,  which 
was  not  recorded.     Plaintiff  thereupon  brought 
I  an  action  of  replevin,  which  came  on  for  trial, 
[  but,  in  consequence  of  tlie  lengtii  of  the  cause 
and  insufficient  time,  could  not  be  concluded. 
At  the  suggestion  of  the  presiding  Judge  a  rule 
was  entered  into  by  which  it  was  agreed  that  a 
verdict  should  pass  for  plaintiff",  with  power  to 
the  Court  to  determine  and  draw  the  same  in- 
ferences from  the  evidence  tliat  a  jury  might 
do,  and  either  enter  a  verdict  for  plaintiff  or 
defendant  or  order  a  non-suit,   as  they  miglit 
think  fit,  and  also  with  power  to  determine  the 
eiiuities,  if  any,  and  to  order  a  sale  of  the  vessel 
and  payment  of  the  proceeds  into  Court  to  abide 
;  the  judgment. 

Hi/il,  fiist,  /iir  Sir  \V.  Young,  C.  J.,  Ues- 
Barres  and  Dodd.  J  J.  (Johnstone,  K.  J.,  tloiiht- 
[in;/,  and  Wilkins,  J.,  flisseutimj),  that  B.  S., 
lieing  the  registered  owner,  was  not  precluded 
by  the  levy  of  executions  against  \V.  S.  from 
giving  the  bill  of  sale  to  the  plaintiff  and  trans- 
ferring to  the  latter  a  possession  sufficient  to 
support  replevin.  Also,  under  the  authority  of 
:  Lam-  V.  Dormy,  1  Old.,  .'>75,  that  replevin 
would  lie. 

Second,  j^tr  Sir  W.  Young,  C.  J.,  Johnstcme, 
K.  J.,  and  DesBarres,  J.,  that  the  registry  of 
the  vessel  being  only  prima  facie,  evidence  of 


1283 


SHIPPING. 


1284 


title,  and  there  being  evidence  of  fiiiud  iind  j  the  voyage  with  (ill  possihle  ilenimti.li.  i'liu 
follusion  between  \V.  S.  and  15.  S.  in  regard  to  owners  of  tlie  ^ngar,  however,  sold  it  in  Hiditax, 
the  registry,  in  order  to  defeat  the  creditors  of  and  then  the  shipowner  refused  or  neglectid  to 
the  former,  that  under  the  equitable  powers  con-  proceed  with  the  voyage,  although  notified  l,y 
ferred  by  the  rule  the  parties  affected  by  the  the  owners  of  the  iron  to  do  so,  and  the  liittii' 
fraud  should  be  restored  to  their  just  relations  |  were  compelled  to  forward  it  toils  desliiiiition 
to  the  vessel,  and  the  St.  John  and  Halifix  ,  themselves.  Afterseltlemcnt  of  the  salvage  suit, 
creditors  be  lulnjitted  to  a  ratable  paiUcijjation  the  shipowner  tiled  a  claim  against  the  owiiera 
in  the  proceeds.  of  the  cargo  for  freight  uniler  the  ciiarter-iiiuty, 

Ar  Wilkins,  J.,  thai  to  draw  inferences  of  and  a  general  average  contribution  towards  tiie 
fraud,  unless  they  are  irresistible  in  their  char-  |  damages  sustained  by  the  vessel  previous  to  tlio 
acter,  for  the  purpose  of  annulling  a  registered    abandonment. 

/(Wma/rtfie  title  to  a  British  ship,  is  beyond  any  Hfid,  as  to  the  freight  on  the  authority  ot 
judicial  competency.  '  The,  Cathhtu,  '2  Asp.  Mar.  Cas.,  3G7,  that  by  the 

Ptr  Dodd,  J.,  tliat  frautl  was  not  sutticiently  ■  abandonment  the  contract  of  affreightment  \v;is 

proved  to  avoid  the  prima  J'avk  title  conferred    abrogated,   and   conse(juently   no    frcigiit    wiis 

by  the  registry.  recoverable.     As  to  the  claim  for  general  iivci. 

(Imut  V.  Jiobertsou,  2  N.  S.  1).,  '247.    age,  which  was  opposed  (m  two  grounds  (1),  tliiU 

the  Court  had  no  jurisdiction  ('2),  that  the  sliip- 
„  n        .  ni..i„4iir>o    ..«     owner's  lien  having  been  lost  by  the  abaii'ldii- 

12.    Revenue-Fraud  on-Plalntirs  ac-  ^^^    J^^^^  ^^^  ^^^^^^^^ 

tion  was  for  the  value  of  lumber  sh.pped  unde    -  ^^^^^  ^^^  ^.^^^^^^  ^^^^^^   ^^.^^.^^.^^^  ^^^ 

au  agree„.ent  that  defendant  shoula  carry  I  an,  .  ^.^^^   ^^^  general  average 

sell  it,  as  aaent  for  p  aintifif,  for  cash  or  bdls  of  :  """"-  i      .■,.„•     ^i  , 

sell  11,       afe  1.  ,     ,     ,    „.,,  1  .,„.  „„ii    when  it  arose  incidentally  in  the  progress  ol  a 

exchance  on  France.     Defendant  coulil  not  sell,  ,  .  ,   ,,     ,^    \,     i  ■     •   r  .■ 

e-xciuuifec    I  ,  ^,      1      1      r„,.    cause  over  which  the  Court  had  jurisdiction. 

whollv  for  cash  and  exchanged  the  lumber  for    '"""'  »      i    i  ■    i    i 

wiiujij-  lu.  b  ,    1  •»  .Second,  that  although  the  master  had  nuleeil 

tobacco,  which,  on  its  return,  was  smuggled  into     ,       ,       '  i        .       ;.  „,„„  ,i„„o  „nU,. 

'        .     '  .  ^  .^„^      ,p.  ^   abandoned  the  vessel,  yet  as  it  was  done  solely 

ixirt  and  seized  bv  the  revenue  oiticers.      iiie  .....  ,        ,      ,  • 

port  ana  seizeii   oy  ine  leveiiue  purpose  of  saving  life,  and  on  her  lieuig 

County  Court  Judge  found  on  the  evidence  that    ,  '      ,  *^.    '^         .  .,  i     i       .„;     i  „  . 

'       L  •       .     f  *i     f       1  ai>„„f  f^  ho  1  brought  into  port  the  owner  had  received  pos- 

plaintiff  was  cognizant  of  the  fraud  about  to  be  .         , ,       ,  ,        r  .u    r-  ,..  t  „^,.o..„i  lo,.. 

l^  b  session  of  her  by  order  of  the  Court  several  days 

committed  on  the  revenue,  and  ga'-e  judgment,' ="='"'  •'  .       ,.    •»  ,.    „  i 

^  ,  ,      /,    ,1       *     before  the  cargo  was  restoretl  to  its  owners,  iU;il 

for  defendant,  which  was  reversed  by  the  Court, /"^'""^  ""^  ^    .*>  u  „  .i  „  cui,..,.  ini 

.,  '    .    ,      ,  ,      ,     ^         .     „i„:  .;«■.„  1  as  the  possession  of  the  vessel  by  the  salvoia  liait 

the  evidence  ot  the  defendant  -  ^^  1^-"^  ^^  ^  „„,  ^ee^  ,^^^^^^^^ 

participation  ,„  the  fraud  bemg  wholly  uncor-  .  ^^^^  .^^  ^.^  ^^^^^  ^^^^  ^^^^^^  ,^^^^  ^^^^.^_,  ,,^^,^ 

roborated  and  contradicted  by  plaintiff.  ,  ^^^  ^^  ^^^^  ^^^^^,^  .^^^  ^„  ^^ 

Blcthen  V.  Gardner,  2  R.  5.  G..  4n  .  |  ^^  ^^J^^.^^  ^.^^^  ^^  ^^.^  ^.^^^  ^^^^^  ^,^^  ^,_^_,^,^  ^,„, 

"     ■     ■     ■'        ■    therefore  his  claim  for  general  average  sliouM 


73. 


be  allowed. 


The  Annk  M.  Allen,  3  C.  L.  T.,  lUS. 


Revenue  laws— Violation  of- 

Ste  REYEME. 

15.    Salvage,  a  Hen  upon  the  propcrt) 

I  saved— The  schooner  Thistle  found  the  ship 
74.  Salvage— Abandonment  of  vessel-  ;  ^,^,^5^  water-logged  and  abandoned  in  the  (iull 
Non-completion  of  voyage— Right  to  freight ,  ^^  j^^.  Lf^^,.e„ee,  and  after  much  meritorious 
and  general  average  — The  Annie  M.  Allen  1  ^^^^.^^j^^^  ^^j,^^^j^,jj^  j,gj.  ju^p  (^  po^  in  New  foiui.i- 
on  a  voyage,  from  Cuba  to  New  York,  laden  with  j  j^^^^^j^  y^heve  she  was  sold,  and  realized  the  sum 
sugar  and  old  iron,  encountered  heavy  gales,  j  ^^  ^g.^  ^  portion  of  her  materials  was  broiighi 
and  after  every  exertion  to  save  her,  in  which  i  ^^  jij^uf^x,  and  was  there  proceeded  against  liv 

two  of  the  salvors. 


she  sustained  great  damage,  was  abandoned 
by  her  master  and  crew.  Subseiiuently,  a 
steamer  fell  in  with  her  and  brought  her  into 
the  port  of  Halifax.  On  giving  security  for  the 
payment  of  such  salvage,  general  average,  etc., 
08  might  be  decreed,  the  owner  of  the  ve.' sel 
was  allowed  to  resume  possession,  and  some  days 
afterwards  the  owners  of  the  cargo  obtained  their 
property  on  the  same  terms.  The  owner  of  the 
vessel  notified  the  owners  of  the  cargo  that  he 
intended  to  repair  her  forthwith,  and  complete 


Held,  that  the  Court  had  jurisdiction  on  the 
ground  that  salvage  constitutes  a  lien  on  the 
goods  saved,  and  the  portions  coming  to  the 
salvors  were  therefore  set-off  to  them  ami 
directed  to  be  paid  out  of  the  proceeds  of  the 
goodf  brought  to  Halifax. 

TheFlora,\.A.D;i^ 

16.   Salvage  —  Appraisement  of  (lerelic|  j 

set  aside— An  appraisement  of  a  derelict  r  " 


1285 


SHIPPING. 


128G 


wiis  i)l)jec'tf(l  to  on  the  younds  :   Ist,  that  the  I 
ii|)piiiisers  lm<l  been  chosen  by  the  Proctor  for 
the  .sulvors  ;  'Jnd,  ihiit   tlie  writ   had  not  been 
iliiected  to  tlie  Miirslml  or  to  CoinmisisionerH, 
lull  to  tlie  appraisers  themselves. 

HtUl,  that  on  these  gronnds  the  appraisement 
could  not  be  sustained. 

Tht  CumhridijK,  Y.  A.  D.,  03. 

T7.   Snlvaj^e  by  nian-ofiWar-One  of  Her 

Miije^ity's  men-of-war  rendered  salvage  services 
to  ii  derelict  ship,  but  was  not  allowed  by  the  ■ 
government    autliorities    to    make    any    claim 
therefor. 

The  Htrmau,  Y.  A.  D.,  Ill,  ' 
Sit  infra,  70  and  U'J. 

18.   Salvage  by  passengers- This  vessel, 

wiiile  on  a  voyage  from  8t.  Pierre  to  Halifax,  j 
stranded  on  Sable  Island.  Only  a  fresh  breeze  ', 
was  lilowing  at  the  time  and  she  received  no  ' 
serious  injury,  bnt  her  situation  was  one  of  con- 
sidcrable  danger  i*  not  speedily  rescued.  Under  ' 
the  master's  direction  the  crew  and  passengers 
killed  with  all  their  clothes,  provisions,  etc, 
Ijiit  the  vessel  was  not  stripped,  and  the  master 
iltiiied  any  intention  of  abandoning  lier.  They 
.ill  left  her  for  the  night,  and  the  following 
iiiiiiniiig  the  six  passengers,  taking  a  boat  from 
the  Island,  boarded  the  vessel,  and  without 
much  difficulty  and  at  no  personal  risk  succeeded 
ill  tioating  her  off ;  when  the  master  and  crew, 
joining  her  in  their  own  boat,  they  completed 
the  voyage  in  safety.  The  passengers  having 
taken  proceedings  to  recover  salvage  as  in  case 
't  derelict,  the  owner  of  the  vessel  paid  the  sum 
I'l  i.'40  into  Court,  which  they  refused.  There 
«iis  much  conflicting  testimony  upon  the  points  : 
first,  whether  tlie  master  really  intended  to 
aliaiiilcin  her  or  not ;  and  second,  the  merit  of 
'lie  salvage  services  renderetl. 

H'ld,  that  the  tender  of  £40  was  sufhcient, 
lilt  that,  in  view  of  the  conflict  of  evidence,  the 
l«'ties  should  pay  their  own  costs. 

The  SttUa  Marie,  Y.  A.  U.,  16. 

9.  Salvage  by  troopship  —  One  of  Her 

^lajesty's  troopships  having  picked  up  a  dere- 
lirt  harijue  with  a  valuable  cargo  and  brought 
kw  into  port,  was  not  allowed  by  the  Admiralty 
Mthorities  to  recejve  any  allowance  by  way  of 
''ilvage. 
Ilirections  given  by  the  Court  as  to  the  proce- 
'"re  in  cases  of  derelict  in  order  to  ascertain  the 
proportion  of  charges  and  expenses  to  be  con- 
'riljuted  by  the  vessel  and  c.irgo  respectively. 
Thej3hn,\.  A.  D.,  129. 


80.  Salvage  —  Conduct  of  salvors- The 

Rowena,  a  brigantine  owned  in  Prince  Kdward 
Island,  after  passing  through  the  Strait  of  Canso, 
went  aground  on  the  east  point  of  the  Island,  at 
low  tide.  After  remaining  in  that  position  all 
night,  and  having  pounded  somewhat  when  the 
tide  rose,  but  not  so  as  to  cause  any  serious 
ilanger,  the  Captain  anil  crew,  in  the  morning. 
Went  ashore  to  procui'e  assistance.  A  part  of 
the  crew  returned  to  her  during  the  day,  but 
did  not  remain  <m  board.  During  tiie  night  the 
vessel  floated  oft',  and  the  following  morning  was 
fallen  in  with  Viy  the  Reff)rm,  who  sent  a  crew 
on  Ijoard  and  lironght  her  to  Halifax  as  a  dere- 
lict. The  Captain  of  the  Kowena,  having  pro- 
cured the  assistance  he  sought,  returned  to  where 
he  had  left  her,  after  both  vessels  had  gone  out 
of  sight.  It  was  contended  on  the  part  of  the 
respondents  that  the  Rowena  was  not  a  ilerelict ; 
that  the  salvors  had  acted  improperly  in  taking 
the  vessel  off  to  Halifax,  when  they  knew  she 
belonged  to  tlie  Island  ;  and  tliat  they  had  for- 
feited all  claim  to  salvage  by  embezzling  some  of 
the  vessel's  property. 

Hdd,  that  the  Kowena  waa  not  a  derelict,  but 
only  a  case  of  ordinary  salvage  ;  that  there  was 
not  sufficient  proof  of  the  alleged  embezzlement ; 
but  that  the  salvors  had  not  acted  rightly  in 
takinj;-  the  vessel  so  far  from  her  home  ;  and 
therefore  only  !*5(K)  was  awarded  on  an  appraised 
value  of  $5,<;K)0. 

The  Hoirtna,  Y.  A.  D.,  255. 

81.  Salvage  -Derelict— A  Ashing  schooner 

while  returning  from  the  grounds  with  a  full 
cargo,  fell  in  with  a  derelict,  and  taking  her  in 
tow  brought  her  into  port,  remaining  in  posses- 
sion until  relieved  by  an  officer  of  the  Court. 
A  delay  of  twelve  days  wap  thus  occasioned  on 
her  home  voyage. 

H'td,  that  one  third  the  value  of  derelict  and 
cargo  should  be  awarded  as  salvage. 

The  Tidier,  Y.  A.  D.,  1(J6. 

82.  Salvage  — Derelict  — An  abandoned 

vessel  was  discovered  by  the  keeper  of  a  light- 
house who  hailed  a  steam-tug  and  directed  her 
to  the  vessel.  The  steam-tug  then  brought  her 
into  port.  The  value  of  vessel  and  cargo  was 
agreed  upon  at  $2,250. 

Held,  that  the  steam-tug  should  receive  jS450, 
and  the  lighthouse  keeper  $25. 

TheAfton,  Y.  A.  D.,  136. 

83.  Salvage -Derelict— A  schooner  found 

by  fishermen  floating  on  lier  beam  ends  and  en- 
tirely deserted,  was,  after  considerable  exertion 
requiring  the  united  efforts  of  thirty-two  men, 
successfully  brought  into  harbor. 


1287 


SHIPPING. 


12S8 


The  sale  of  wliip  and  oarg"  luuli/ed  S!t.")4.(Mt. 

H<:ld,  tluit  tlic  milvoiH  shoultl  lie  paid  out  of 
that  sum,  J?!.').'!  for  thi'ir  lahor,  and  !?»  a  piece  aa 
milvugc,  making  •'?44l  in  all. 

Th>  S.  V.  Cooiinit,  V.  A.  I).,  10!t. 

S4.    Salvage  -  Derelict  -  No  claimant  - 

\N  iieie  no  owner  appeareil  to  claim  goods  found 
derelict  and  their  value  was  not  great, 

H</if,  that  the  salvois  should  have  the  full 
amount  they  realized  after  payment  of  necessary 

Tiro  lidlisn/CoHoti,  V.  A.  1).,  135. 

83.    Salvage -Derelict -One-half  of  the 

net   proceeds  of  sale  awardeil  to  salvors  where 

no  appearance  or  claim  was  entered  on  behalf  of 

the  ow'ners. 

Thi  Arrhifec/,  Y.  A.  D.,  110. 


86.    Salvage-Derelict,  order  of  proceed- 
ings against — The  salvors  of   a  derelict  ship 
should  in  the  first  instance  give  notice  to  the 
Proctor  for  the  Admiralty,  who  will  forthwith 
extract  a  warrant,     i^fter  the  issue  of  the  dere-  j 
lict  warrant  the  salvors  should  move  for  leave  j 
to  intervene.     If  the  case  be  one  of  only  trivial 
iuiportance,  the  Court  will  then  direct  the  tiling  ; 
of  afiidavits  in  proof  of  claims,  &c.     In  cases  of 
greater    moment,  it    will    sanction  an    act   on 
petition,   with  the   usual   pleadings   and   proof 
under  the  Rules  of  1859  ;  and  when  there  are 
claims  represented  by  several  Proctors,  or  sub- 
sefiuent  to  each  other,  a  consolidation  will  be 
ordered,  as  in  other  cases  of  salvage. 

If  a  private  warrant  be  extracted  in  the  interim 
between  giving  notice  to  tlie  Admiralty  Proctor 
and  his  taking  proceedings,  it  will  be  disallowed 

on  taxation. 

The  Smuh,  Y.  A.  1).,  102. 


fuKcil  to  l)iiy  the  amount  awarded, tliercliy  nml 
ering  a  sale  necessary,  and  it  clearly  iippi  iiiuy 
1  that  a  sum  far  less  than  the  appraisement  «iu;lil 
be  realized  at  such  sale,  anil  that  tliercforij  tlic 
award  would  be  excessive  and  unjust,  tin-  ('(lurt 
set  aside  its  judgment  and  ordered  a  sale  to  lif 
had.  At  the  sale  the  vessel  and  cargo  rcidi/i-il 
only  ii4,12H,  instead  of  8!t,00(J,  as  had  het'ii 
appraised. 

HJil,  that  the  decree  should  he  le-opeiicd, 
and  that  the  Court  should  take  the  S!4,1'J,S  aii4 
not  the  89,000  as  tlie  basis  of  its  award  of  sil 
vage,  the  same  proportion  being  awardeil  to  tlic 
salvors  as  before,  with  their  taxable  costs.  Kat  ■ 
of  allowances  for  charges  determined.  Wliure  iiii 
appraisement  is  ordered  by  the  Court  ai  the 
instance  of  the  salvors,  with  a  view  to  a  decree, 
and  has  been  duly  made  by  reliable  parties,  the 
Court  will  not  allow  it  to  be  (luestioned. 

Tfi,  S.  li.  HiiiiK,  Y.  A.  1).,'.''.'H. 


8J.    Salvage-Derelict -Re-openIng  a  de- 

cree— The  .S.  B.  Hume  having  been  picked  up 
derelict  by  the  («.  P.  Sherwood  was,  after  much 
risk  and  arduous  exertion,  brought  into  port. 
The  values  of  vessel  and  cargo  were  appraised 
by  competent  persons,  in  whose  estimate  the 
Proctors  f<ir  both  salvors  and  owners  acquiesced 
at  .*9,(»iX.t,  and  the  service  having  been  one  of  a 
highlj  meritorious  character,  one  half,  viz., 
84,500,  was  .warded  as  salvage.  Subseciuently 
the  Proctors  for  the  owners  of  the  vessel  ob- 
tained a  rule  to  set  aside  the  judgment  and 
awavd  of  salvage  on  the  ground  that  their 
acquiescence  in  the  appraisement  had  been  given 
under  a  misapprehension  of  the  facts  and  of  the 
purpose  to  which  it  was  to  have  been  applied. 
The  appraisement  had  not  been  made  at  the 
instance  of  the  Court.    The  owners  having  re- 


88.    Salvage  -  Derelict  —  The  schooner 

Finance,  while  on  a  fishing  voyage,  fell  in  with 
the  schooner  Sylph,  the  wind  blowing  lieiivily 
ai\d  the  sea  being  very  rough.  The  latter  liiul 
both  masts  gone,  her  rigging  on  her  deck,  ami 
was  lying  helpless  in  the  trough  of  the  sea.  In 
response  to  signals  of  distress,  the  Finance  lay 
to,  and,  at  great  risk,  took  otl'  the  captain,  crew 
and  passengers  of  the  Sylpli,  with  all  their 
effects,  and  the  schooner's  papers,  chronometers, 
flags,  charts,  etc.  Tl'.e  captain  had  no  iuteiitiwi 
of  returning  to  the  vessel.  The  wind  being  tot. 
high  to  do  anything  then,  the  Finance  stood  In 
until  it  had  abated,  and  then  taking  the  Sylpli  in 
tow,  brought  her  into  .Shelburne  Harbor,  a  ilis 
tance  of  90  miles. 

Hrlil,  that  the  Sylph  was  practically  derelict, 
and  the  value  of  vessel  and  cargo  having  lieen 
appraised  in  Shelburne  at  81,800,  that  the  kiI 
vors  should  receive  one-half  that  sum,  viz.,8» 
The  Sj///);i,'2C.  L.  T.,Wi:. 


89.    Salvage-Derellct-The  ship  Scots- 
wood,  meeting  with  tempestuous  weather,  !«■ 
came  water-logged  and  completely  disahle.l,  lli> 
provisions,  compasses  and  charts  being  wasiit'l 
away.     In  this  condition  she  was  found  by  tlit 
J.  \V.  Brown,  a  fishing  schooner,  which,  ni  it 
sponse  to  signals  of  distress,  came  aloiigsiile 
and  took  off  the  captain  and  crew  of  the  shiii. 
putting  nine  of  her  own  men  on  hoard  iu  tlieir 
place.      The  captain  and  crew  of  the  ship  nevd  i 
attempted  to  rejoin  her  again,  luit  reinaiiieiH 
board  the  schooner  until  port  was  reached.  Uif 
heavy  weather  still  continuing,  the  sehooiierwa.-l 
unable  to  manage  the  ship,  and  the  foUoMiugl 
day,  on  another  schooner,   the   Laura,  comiuSI 


12S9 


SHIPPING. 


li>!>0 


near  they  hailed  one  another,  and  after  conHulta- 
tidli,  it  was  decided  tiiat  each  seiiooner  NJiould 
sfiiil  seven  men  on  board  tiie  Hhip  and  that  then 
Imth  should  take  lier  in  tow.  After  great 
exertion  on  the  part  of  lioth  crews,  tiieMliip  was 
nil  the  next  day  Itroiiglit  into  port,  The  evi- 
dence was  not  conclusive  as  to  the  intention  of 
the  iimster  of  tlie  Scotswood  to  finally  abandon 
her,  l>ut  tiie  salvage  services  rendered  being 
hi|i.'iily  nieritoi-ious,  this  wa.s  not  considered  a 
|i(]int  of  nuieh  importance. 

Hi  Id,  that  two-fiftiis  of  the  appraised  value  of 
siii))  iuid  cargo  should  be  awarrled  as  salvage,  to 
lieilivided  e'jually  lietween  the  two  scliooners, 
the  owners  of  tlie  scliooners  to  receive  onedialf 
iif  tlie  amount  falling  to  each. 

Tlie  cases  reviewed  a.s  to  the  rate  of  salvage 
ill  enses  of  derelict  and  the  vitiating  of  insur- 
.ince  by  deviation  to  save  property. 

Thi'.  Srofswond,  Y.  A.  1).,  •->"). 

90.  Salvage  —  Derelict  —  The  ship  was 

iiiunil  derelict  by  the  Mail  Steamship  Abyssinia, 
mil  the  third  officer,  with  fifteen  of  the  steamer's 
iRW,  after  two  day-  cvtrenie  exertion  and  con- 
siileralile  personal  ri.<k,  succeeded  in  bringing 
her  sately  into  the  port  of  Halifax. 

Aiijiraised  value  of  ship  and  cargo  .SlOl,!);^!, 
S'!0,(KMI  awarded  as  salvage. 

Thf.  i:.  h'ohiiisoii,  Y.  A.  1).,  l(jS. 

91.  Salvage  —  Derelict  —  The  steamer 

Najiles,  with  a  valuable  cargo  bound  from  Pliila- 
'kiiiiiia  to  Liverpool,  fell  in  with  the  Ida  Barton 
lerelict,  abc  it  3'20  miles  from  Halifax,  and  towed 
her  til  that  i>ort  in  forty-eight  hours,  breaking 
iiiilsiMiiliiig  several  hawsers  in  so  doing.  There 
was  no  special  merit  in  the  services  rendered.       , 

fifid,  that  the  salvors  should  reoeive  one  half  | 
if  tlie  appraised  value  of  ship   and   cargo,   all ! 
msts  anil  charges  to  be  deducted  from  the  other 
wlf,  and  that  the  owners  of  the  steamer  should 
!iike  line-half  of  the  salvage  awarded.     The  rule 

■  til  salvage  on  derelict  stated  and  cases  re- 
viewed. 

The  Ida  Barton,  Y.  A.  1).,  '240. 

9'i.  Salvage  —  Derelict  —  Re-opening   a 

decree— The  steamer  Zealand,  bound  from  Ant- 
•eip  to  I'hiladelphia,  fell  in  with  the  Royal 
Arch  abandoned,  and  in  twenty  hours,  with  but 
little  ditticulty,  towed  her  into  Halifa  :.  The 
hihtu]  was  valued  at  S27.'>,0()0  for  vessel  and 
atp  anil  the  Royal  Arch  at  !58,3(K». 

Hd,l,  that  .^-2,800  should  be  awarded.  Sub- 
'P|iieiitly  it  was  disco  ered  that  the  appraise- 
"ifiu  iiad  been  misunderutood,  and  that  it  should 
nve  been  construed  so  as  to  make  the  total 
>*ie  of  tiie  Royal  Arch  only  .*!7,r)00.  , 


Held,  that  although  the  counsel  for  tiio 
Royal  Arch  had  acquiesced  in  the  appraisement 
and  decree  until  the  error  was  discovered,  yet 
that  they  were  not  shut  out  from  ajiplylng  for 
relief — that  the  decree  should  be  re-opened  and 
award  made  upon  the  basis  of  •'?7,")IH),  the  same 
proportion  being  allotted  to  the  salvors. 

Reoent  cases  upon  the  i|uestion  of  the  re- 
opening of  dec  'ees  cited. 

The  exercise  of  authority  to  ic-open  a  decree 
shoidd  be  used  with  the  greatest  caution.  The 
limit  proposed  is  this,  to  make  such  an  alteration 
of  an  error  arising  from  defect  of  knowledge  or 
information  upon  a  particular  point,  as  the  jus- 
tiee  of  the  case  reijuires.  It  must  lie  an  en  or 
instantly  noticed  and  lirought  to  the  attention 
of  the  Court  with  the  utmost  diligence. 

The  lioyal  Arch,  Y.  A.  D.,  '200. 


93.    Salvage— Derelict -Elements  to  be 

considered  in  computing  salvage — The  \V,  <;. 
Putnam,  bound  from  tjuebec  to  Marseilles,  was 
abandoned  off  the  coast  of  Cape  Breton,  being 
completely  water-logged.  Her  crew  reached  land 
the  same  <lay,  and  the  day  following  a  small 
steamer,  manned  by  the  salvors,  wentout  in  search 
of  the  derelict.  They  found  her  about  forty 
miles  frfim  North  .Sydney,  and  with  little  diffi- 
culty towed  her  into  that  port.  The  value  <if 
slii]),  cargo  and  freight  was  estimated  by  agree- 
ment at  S'2tl,<J(M>,  and  the  value  of  the  salving 
steamer  was  alleged  to  be  >'4,(MM). 

Hild,  that  the  salvors  should   receive  .'?2,.")»K). 

The  receiver  of  wrecks  at  .Sydney  put  in  a 
claim  for  the  possession  of  the  ship,  as  against 
the  salvors. 

Hild,  that   there  was   no  ground   for   the 
claim. 

.Salvage  is  not  always  a  mere  compensation  for 
work  and  labor  ;  various  circumstances  upon 
public  considerations,  the  interests  of  commerce, 
the  benefit  and  security  of  navigation,  the  lives 
of  seamen,  render  it  proper  to  estimate  a  salvage 
reward  upon  a  more  enlarged  and  liberal  scale. 
The  ingredients  of  a  salvage  service  are,  first, 
enterprise  in  the  salvors  in  going  out  in  tem- 
pestuous weather  to  assist  a  vessel  in  distress, 
risking  their  own  lives  to  save  their  fellow-crea- 
tures, or  to  rescue  the  property  of  their  fellow- 
subjects  ;  secondly,  the  degree  of  danger  and 
distress  from  which  the  property  is  rescued, 
whether  it  were  in  imminent  peril,  and  almost 
certainly  lost,  if  not  at  tlie  time  rescued  an<l 
preserved ;  thirdly,  the  degree  of  labor  and 
skill  which  the  salvors  incur  and  display,  and  the 
time  oc  ipied.  Lastly,  the  value.  \Yhere  all 
these  circumstances  concur,  a  larga  and  liberal 
reward  '■  ight  to  be  given  ;  but  where  none,  or 


1291 


SHIPPING. 


1202 


Bcarcely  any  take  place,  the  compeiisatiim  can 
hardly  be  denominated  a  Halvage  compensation  ; 
it  is  little  more  than  a  mere  rennineration  pro 
opere  et  lahorc. 

The  W.  (1.  Puimm,  Y.  A.  l).,27l. 

94.  Salvage-  Derelk't-Thls  vessel,  hav- 
ing l>een  abandoned  at  sea  while  on  a  voyage 
from  (,>uebec  to  London,  was  found  in  a  water- 
logged condition  by  the  A.  W.  Singleton,  off  the 
coast  of  Newfoundlanil.  The  male  and  four 
Beamen  of  the  latter  vessel  took  charge  of  the 
derelict  and  brought  her  into  the  port  of  Syd- 
nev.  It  was  a  very  meritorious  case,  the  salvors 
having  run  considerable  risk  anil  enduretl  great 
hardship.  Tiie  value  of  the  derelict  was  ap- 
praised at  !?3(»,(KK). 

Held,  that  the  sum  of  ?«,fKt(>  should  be  awar-  i 
ded  as  salvage,  of  which  the  master  and  mate 
received  .«l,tKK)  each,  and  the  four  other  salvors  : 
^:M)  each  ;  .SM,'2(»(»  lieing  allowed  to  the  owners 
of  the  ship,  the  balance  to  those,  oiher  than  the 
master,  who  remaineil  on  the  salving  vessel. 

Tin  Ccnitirliiiri/,  Y.  A.  D.,  .'>7. 


ft.i.    Salvase -Dt  relict  -This  vessel,  while 

passing  <lown  the«lulf  of  St.  Lawrence,  struck 
on  a  reef,  lost  her  rudiler  and  became  utterly 
unmanageable.  In  this  condition  she  was  found 
by  tlie  salvors,  who,  resj)on<ling  to  signals  of 
distress,  took  the  crew  otl'  and  landed  them  in 
Sydney,  Cape  Hreton,  then  returned  to  the  , 
Regina,  and  after  considerable  exertion  brought 
her  into  the  same  port.  The  net  proceeds  of 
shi]),  stores  and  cargo  were  !?7,10.">. 

Ill /'I,  that  the  salving  schooner  should  receive 
8,")(K».  and  the  ten  seamen  on  board  her  8"2(M>  each. 
Directirtns  giv.-n  as  to  proper  method  of  execut- 
ing appraiseiuen;  of  sliip  an<l  cargo. 

Thi  li'ii'nia,  Y.  A.  I).,  107. 

m.    Salvage -For  restiie  by  the  erew, 

one-sixth.     King's  ships  not  entitled  to,  for  per- 
forming their  ordinary  duty. 

Tht  Wn/ker,  Stewart,  103. 

97.    Salvage  ft*oin  lire  -Services  of  float. 

ing  fire-engine  and  fire  department— The  two 
baniues  M.  ,1.  K.  ami  Magnolia  were  lying  out 
in  the  stream  in  Halifax  Harbor,  the  former 
being  ready  to  proceed  to  sea,  and  only  awaiting 
orders,  the  latter  laid  up  for  the  winter,  and 
having  only  one  man  on  board  as  watchman  and 
ship-keeper.  At  about  2.40  a.  m.  on  the  morning 
of  4th  February,  the  look-out  on  board  the  M. 
,1.  K.  discovered  fire  issuing  from  the  Magnolia, 
and  aroused  the  captain,  who  immediately  called 
all  hands  up,  and  sent  a  boat  off  with  the  mate 
and  five  men.     They  found  the   vessel  on  fire 


aft,  and  took  away  the  watchman  to  their  own 
vessel.  The  captain  himself  with  the  niiilciunl 
all  the  men  that  could  be  spared  from  tlie  M.  ,1. 
K.  returned  to  the  bui:''..!g  ship  and  put  fi)rtli 
every  exertion  to  subdue  the  flames.  Tiny 
succeeded  in  retarding  their  progress,  l)ut  (.niilil 
not  have  saved  tlie  vessel  from  r.ltimate  destruc- 
tion had  not  the  fire  been  observed  fiom  tiic 
shore,  and  after  the  lapse  of  more  than  an  liour 
a  number  of  the  city  firemen  came  otT  in  a  stiiiiii 
tug  specially  fitted  up  with  fire  pumjis,  by  whuw 
eflPective  assistance  the  fire  was  soon  put  out. 
The  owners,  master  and  crew  of  the  M.  .1.  K. 
and  the  owners  of  the  steam-tug  claimed  renin 
'  neration  as  for  salvage  services.  The  fiicnun 
made  no  chiim. 

Hi  III,  that  the  services  rendered  were  salvage 
services,  that  the  owners  of  the  M.  .1.  K.  wire 
not  entitled  to  receive  anything  as  their  vessel 
had  not  been  in  anywise  imperilled,  and  tii;it 
the  amounts  awarded  to  the  otliers  slioidd  lie  its 
follows;  the  Magnolia  having  been  sold  inidei 
directions  from  the  Court,  realized  S12S'2..->!t ;  tn 
the  owners  of  the  steam-tug,  !*"2<lO  ;  to  the  nias 
ter  of  the  M.  J.  K.,  8WM) ;  to  the  unite  of  tlic 
M.  .1.  K.,  •S40  :  810  to  each  of  the  eleven  men, 
fSllO  ;  total  8450  with  costs  to  be  taxeil. 
i  Th<  A/nuiwIia,  .SC.  L.  T.,  107. 


98.  Salvage-llen  for-In  awarding  sal- 
vage, the  actual  salvors,  and  not  the  owners  nf 
the  salving  vessel,  receive  the  largest  uniuunt. 

(living  advice  to  a  master  as  to  locality,  even 
to  a  foreign  vessel,  is  not  a  salvage  service. 

Salvors  must  not  sleep  on  their  lien  on  the 
pro])erty  saved. 

Where  salvors,  who  have  a  claim  for  a  nioikr- 
ate  reward,  set  up  an  influenced  and  exaggerate' 
statement  of  their  services,  tlieir  claim  will  I 
wholly  dismis.sed,  and  themselves  condenuie.l  in 
eosts.  Thi  AImn,  1  Old.,  ML 

99.    Salvage  not  iliie  for  rescuing  a  ship 

which  had  been  seized  for  a  lireach  of  the  lii»- 
of  its  own  country. 

Enemy's  property  protected  by  a  liceii.se,  \iM'- 
to  i)ay  salvage  for  sei'vices  rendered  by  Biiti>l' 
ships.  Thf  Ahiijail,  Stewart,  .'!■>■'. 

j    100.    Salvage  of  life  -A  foreign  ship  he- 

coming  disabled  in  the  <iulf  of  St.  Lawrence  her 
crew  were  taken  off  by  one  set  of  salvors  an) 
safely  landed  at  a  port  in  the  Island  of  Ca|Hr 
IJreton.  Subsecjuently  another  set  of  salvors  ff il 
in  M-ith  the  ship  anil  brought  her  into  an  adj'H" 
ing  port.  The  services  in  both  cases  were  liigl'l) 
meritorir)Us  and  rendered  while  tlie  disal'leJ 
vessel  was  about  sixty  miles  from  the  nearest 
land. 


1293 


SHIPPING. 


1294 


//'/'/,  that  \v)t\\  sets  of  salvors  were  entitled  ]  due  form  was  proved.    Tins  value  of  the  Marino 
tn  salvage,  and  a  mile  of  tlie  sliip  having  Iteeii    was  appraised  at  80,1  MN). 


efftfted  for  !!l'J,5H(),  tlie  Court  awarded  the  sum 

(if  ijillrtO  to  1)0  diviiled  among  the  salvors  of  the    for  salvage 

I'i'C'W  and  !^0(N)  among  the  salvors  of  the  ship. 

Thi:  H'iudnll,  V.  A.  !),,  I.'W. 


Hdil,  that  the  sum  of  .*,S(H)  shouhl   he   paid 
The  Marino,  Y.  A.  1).,  ol. 


101.  SulvuKe  of  life-Awards  mtule  in  the 

nature  of  life  salvage  to  fishermen  who  had  been 
iiistnimcntal  in  saving  many  lives  from  a  pas- 
Bi'Dger  steamer  wrecked  upon  the  coast. 

TlieAf/niitlr,y.  A.  1).,  170. 

lU'i.   Snivuge— Payment  of  award  to  sal* 


10.1.    SalvaK<' —  Tlie  Aususte  Andre,  a 

Belgian  :4teamer  sailing  between  Antwerp  and 
N'ew  Vork,  enoountered  severe  weather  and  had 
fier  rudder  carried  away.  She  continued  her 
course  in  that  crippled  condition  until  fallen  in 
with  by  the  Switzerland  aliout  17.">  miles  distant 
from  Halifax,  who  took  her  in  tow  and  brought 
her  into  port,  after  three   days  towage.     The 


vors    -Directions  as  to  the  proper  method  of  weather  was  moderate  during  all  that  time,  and 

|Ki\  iiicnt  to  salvors  of  tiie  amount  awarded  them  the  services  rendered,  «  hile  extremely  opportune 

liy  the  (  ourt.  n„ij  valuable,  were  not  of  a  higldy  meritorious 

Till-   I'roctor   for   the  owners  of   the   salve.l  character.     The  values  of  the  respective  steamers 

vissel  had  paid  into  the  hands  of  the  Proctor,  ami  their  cargoes,  freights,  etc.,  were  as  folh.ws  : 

f(.i'  the   salvors,    the   amount    awardeil    to   the  'i'i,u   Auguste    Andre,    vessel   worth   .'jiil'J7,.')fH» ; 

silvors,  which,  having  been  paid  by  him  to  the  ^.,^,.J,n^  .* !■_»•-',")(«» ;  freight,  .'riH,")!)-.'.     The  Swit/er 

agents  of  the  salving  sliij),  had  been  by  them  i^,,,!,  vessel,  .^.'W,5,(HK»  ;  cargo,  8'-V.<»,<K>tt. 

iiiiMe  subject  to  a  commission  of  five  per  cent.  //,,/,/^    tl„it    .^Jl^iMKI  should   be   awarded    as 

its  iigainst  the  salvors.     The  Judge  intimated  salvage,  of    which  .'>i!2,(HH)    slumld    go    to   the 

liiMipinion  that  this  should  not  have  been  done,  owners,  S\,mi  to  the  master,  and  the  balance 

liiit  that  the  whole  of  the  salvage  money  should  among  the  crew  according  to  their  ratings.    The 

Imvc  been  paid  into  Court,  an.l  then  paid  out  ,„„jern  decisions  cited  and  reviewed. 


uikIc!'  its  authority  to  the  salvors  in  person,  if 
they  applied  therefor,  or  if  not,  to  their  duly 
iiiitliori/ed  agent.  It  was  further  directeil  that 
the  ivcuipts  of  the  salvors  or  their  agent,  with 
procif  of  his  authority,  should  be  filed  in  the    .' 

Th<  liimd,irii,\'.  A.  1).,  A'l. 


T/ih  Awjusft  Andrr,  Y.  A.  1).,  201. 


cause. 


103.    Salvage,  (lunntiim  to  salvors -Ke- 


106.  Salvage -The  baniue  Martha,  hav- 
ing run  ashore  near  the  mouth  of  Halifax  Har- 
)or,  was  assisted  by  three  neighbouring  fisher- 
men in  getting  off  again.  Substantial  service 
extending  over  three  days  was  rendered.  The 
salvors,  being  as  they  considered  inade(iuately 


duction— Case  in  which,  on  a/>/>fn/  to  ly  /'riry  '  remunerated,  applied  to  the  Cimrt, 

Vviniri/,  salvage  remuneration  was  re.luced  from       ffe/d,  that  the  amount  was  not  sufficient,  and 

sl'.'.iKKi  to    S7,'>(K>,   their    Lordships  being    of    that   the  sums  of  .*3.">,  mt  and  .S-T)  should  be 

Mljinidii  that    the   difference   between  the  sum    added  to  the  respective  amounts  paid  into  Court 

awiiiilcd  and  that  which  would  be  lil)eral  was 

Ml  laiLte  as  to  rec^uire  correction. 

Th'  (iliuilufor,  L.  R.,  3  1'.  C.,  580,  approved 
"f  liiiil  followed. 

(loir  ct  al.  V.  Alltn,  not  reportnl  luloir, 

Oi'-inrn  of  7'hi-  Thomat  Allen  v.  iloir  et  al., 
L.  R.,  12  App.  Cas.,  118. 


for  the  three  salvors  with  costs. 

The  Martha,  Y.  A.  1).,  247. 


101.    Salvage  -The  Charles  Forbes  sailed 

from  a  port  in  the  Uni*i,d  States  bound  for 
Portland  with  a  cargo  of  coal.  Kncountering 
heavy  weathci',  her  cargo  shifted,  but  not  to 
''  such  an  extent  as  to  throw  her  on  her  beam 
104.  Salvage— The  brlgantine  Marino,  ends,  nor  did  she  become  unmanag»'<ble.  In 
'111  a  voyage  from  Boston  to  Sydney,  encoun-  '  this  state  she  was  found  off  the  American  coast 
itred  a  heavy  gale,  which  carried  away  her  by  three  American  schooners,  and  abandoned  by 
ri5'ging  and  rendered  her  almost  unnuinageable,  her  master  and  crew  without  there  being  any 
111  which  condition  she  drifted  along  the  coast  circumstances  whatever  to  justify  such  a  cour.se. 
"f  Xova  Scotia  for  several  days,  until  fallen  in  Although  many  American  ports  were  much 
«ith  hy  the  steamer  Commerce,  which  took  her  nearer,  the  salvors  lirought  her  into  Halifax. 
11  tnw,  and  after  eight  or  nine  hours  brought  After  the  vessel  had  been  taken  possession  of  by 
I'er  into  Halifax  Harbor.  There  was  some  evi-  the  salvors  her  master  made  efforts  to  return  to 
'lence  of  an  oflfer  of  §.'500  having  been  made  for  her,  but  was  prevented  by  one  of  the  salvors. 
the  services  rendered,  but  no  actual  tender  in!  He  then  asked  them  to  take  the  vessel  into  Port- 


1295 


SHIPPING. 


12'J(i 


laiiil,  liiT  (k'HtiiiatidiiJ'iit  tluM  wmh  ivtuxfil.    Tlic  j  clainmntH  ciiim;  on  lioiinl  iukI  tlic  iiiiTitN  nf  ilnjr 
vcsHfl  wiiM  iippmiMud  iit  ."ii-."!..'!!!.'!!!!!!!  lliu  oiigo  iit    st'rvict'H,  tliu  (lufciiiliiiitH  (liHputin^,'  their  claiin  tn 


5'4.44tl. 

//»/>/,  tlmt  tliu  vt'HHi'l  wiiM  nut  iKii'lict ;  tliut 
the  Hiilvors  Imd  not   lU'teil  a»  tliey  mIiouM  have 


the  cliaractcr  of  huIvoi'h.  XevurthelfHH  tlic  ilc 
fenthintH  ])iU(l  the  Hiini  of  >*Wt  into  Court,  umi 
the  weight  of  evidence  weenieil  to  lie  with  ilic 


ilnne  umiUt  tlie  I'iruuniMtaucex,  and  tliat  as  tliere    chiinnintH. 

was  no  (tulmtantiul  Bervioe  rendered  l>y  tiieni,        //«/-/,  that  t lie  mnn  of  •*'J<Kt  shotdil  lie  ii|-.i.illy 

the  total  salvage  hIiouM  only  lit  .'<'J,S4ll,  to  lie  |  divided  among  the  five  chiinmnts. 

divided  among  then.,  with  lo^ih  <:f  nuit.     The  |  The  Sltrn-  lUII,  Y.  A.  1).,  4.1 

Captain  of  one  of  the  salving  schooneiw,  who  | 

had  taken  connnand  of  the  Charles  l-'oilies,  was  ;      HI.     SalVaKC  -  Valuation   Of  Hlli|),  Cliri;)) 

helil  to  have  mo  niiHCoiidueled  himself  us  to  for-    and  freight  8(i.">,(HH»,  salvorti  awarded  !>i|;<,(MHi. 


feit  his  share  of  the  salvage.     The  law  upon  this 
point  reviewed. 

Th<  Churl's  Furh,s,\.  A.  D.,  IT'-'. 


Th>  Syl,,lilih,  V.  A.  1)..  1,17, 


112.   Seamen -.IrtU'leN -SiiliiK  lorwa^is 

—Jurisdiction  of  Vice-Admiralty  Court      In 

108.  Salvage— The  Herman  LihIwIR,  on  a  shipping  articles  the  following  is  a  sutlicifinly 
voyage  from  New  York  to  Antwerp,  iiroke  her  pu'cise  descrijition  of  the  voyage  :  "  Knnii  l.c.ii- 
shaft  when  two  ilays  out,  and  the  California,  don  to  any  port  in  S])ain,  thence  to  Newfoiiihl- 
anoiiicr  steamer,  coming  \\\>,  an  agreement  was  Imid  and  IJrilish  North  America,  United  .States. 
entered  into  liy  tlie  master  of  the  disaliled  West  Indies,  Mediterranean  and  Continciil  nf 
steamer  to  lie  towed  into  Halifax,  and  to  pay  Kiirope,l)aekwards  and  forwards,  in  the  pioMcii- 
foi  the  service  such  amount  as  should  lie  settled  tion  of  the  Newfoundland  trade,  and  hack  to  tlio 
liy  the  Admiralty  Coiu't  at  that  i)ort.  This  final  port  of  discharge  in  the  United  Kingilmii, 
was  accomplished  within  twenty -four  hours,  such  voyage  not  to  exceed  two  years, 
without  any  mishaji,  e.\cc])t  the  breaking  of  two  j  No  seaman  who  is  employed  for  a  vuyiigc  ni 
hawsers.  engagement  which  is  to  terminate  in  the  Uniti-.j 

H'/'l,  tliat  the  service  rendered  was  not  a  Kjngilom,  can  sue  in  a  Colonial  Vice-.Adniiialty 
mere  towage,  luit  a  salvage  service,  and  81'»,(KMI  Court  for  his  wages,  uidess  discharged  as  diicc- 
was  awarded  tlierefor,  of  which  .^iT.tHMt  went  ted  l>y  the  (ieneral  Merchant  Seaman's  Act. 
to  tlie  owners  ami  !?7'')(t  to  the  master,  the  The  Admiralty  Court  has  no  jiuisdictioii  jii 
lialance  to  the  crew  according  to  their  ratings,  n  suit  to  recover  seamen's  wages,  unless  the  sniii 
The  law  as  to  deviation  for  the  saving  of  prop-  ;  claimed  amount  to  at  least  fifty  |)onnils  stciliiii;. 
erty  reviewed.  |  />«'';  v.   7'lit  Vilonty,  .laiiics,  'Ml 

The.  Hn-man  Lndin<i,  Y.  A.  1).,  -Ml.  ' 

109.  Salvasc-Tlic  sehooner  Maigaret,     »3.    Seamen -Correction  of,  bj  master - 

when  in  a  helpless  condition,  was  fallen  in  with  The  common  law  right  of  the  master  (,f  a  vc.hI 
l.y  the  Alfred  \Yhalen,  and  the  captain  of  the  to  moderately  correct  and  Hog  a  seaman  i-<  n"t 
latter  vessel  persua.led  the  Margaret's  crew  tr,  taken  away  by  the  necessary  operation  M 
ilesert    her   and  take   to   his   vessel.     He    then    Imperial  Statutes. 

sailed  otJ-  but  soon  returned,  and  taking  her  in  Defendant,  master  of  the  ship  I'lctuu.  m 
tow,  brot'ght  her  into  port.  Pi^'f".  N-  •"^-  ^^hile  in  the   Hay  of  Canlenas, 

mid,  that  this  .lid  not  constitute  the  Mar-    W-  U  being  about  to  leave  the  ship  for  a  tni.e, 
garet  a  derelict,  and,  therefore,  somewhat  less    ordered  an  anchor  watch  to  be  kejit.    On  In^ 
than  one-half  the  amount  claimed  was  awarded,    return  at  night,  he  found  that  the  order  luul  hed. 
The  Maiyanf,  Y.  A.  I).,  171.    <lis<'l'«ye'l.  '""I  that  the  plaintifl',  to  whom  the 

!  duty    had    been   assigned,    was   asleep    liclim. 

110.  Salvage  —  This  vessel,  while  on  a  Plaintiff,  on  being  ordered  up,  used  insolent 
coasting  voyage,  put  itito  harbor  for  the  night. ;  language  and  struck  defendant,  for  which  lie  was 
(m  account  of  heavy  weather.  During  the  night  !  placed  in  irons.  Plaintiff  then  renewing  tlie 
the  wind  increased  and  the  vessel  dragged  her  |  use  of  insolent  and  threatening  language,  iiiid 
anchors  until  she  struck  on  the  rocks  and  was  soliciting  the  crew  to  interfere  on  his  lieliult, 
placed  in  circumstances  of  considerable  danger.  I  defendant  caused  him  to  be  tied  up  and  floggfl 
At  this  point  the  claimants  ten.lered  their  ser-  ;  him  with  a  piece  of  rope  until  he  became  (jinet. 
vices,  and  after  two  hours'  labor  succeeded  in  I  Plaintiff  brought  an  actior  for  daniages,  and  f'e 


rescuing  her  from  her  perilous  position  and 
securing  her  in  a  pla^.e  of  safety.  The  evidence 
was  exceedingly  contradictory   as   to  how  the 


jury  finding  for  defendant,  on  a,  motion  to  5« 
the  vertlict  aside, 
//M,  Wilkins,  J.,  ditsmtimj,  that  the  facts 


1207  SHIPPING.  1298 

havin^r  l.cen  Curly  ,mt  t,.  tl,.  jury,  tlu.jr  v.nli...t       UH.    SCiinim'H    wajJPS  -  .hirlMlKllOII     of 

"";;'''"",•   ,,.  I  Vice- Admiralty -Special   contract    for  sea- 

"'"''■•  ''••  ''"'"'""''•  man'8  wagea.   what  constituteH  -  Cannot  bo 

<iu,:/o„  V.  i.w/on,  I  X.  s.  !>.,  SO.    enforced  in  Vice-Admiralty  Court -Two  nut 

,  "f  tliri'f   juiiinovi'iit*   slii|)jic(l   at    IJerimiilii   mi 

111.    Sraincn-CONtHrrniMMltoplililltlirH-    l».anl  tlu- Ml,i|,  lil.i.lk.,l,  ,i  l.ioc.ku.h.  rmm.r,  fnr 

U  h.R.  tlio].laiutitIs,.euin..n.roc..vi.nMl  f„r  ^u^^,0H    tlio  romwl  v..yn«f  from  HermiKk  to  Wil.niiiKt 

■luf  tlirm  an  ain..nnt  in  rach  ohhu  below  840.  Xo,,|,  Can.ljna.  and   tlicncf  to  Halifax.  Nova 

H'/'l,  that  aH  their  ulaiinH  might  have  I.een    Scotia.     The  remaininK  P"'i'"<'vent   Miippe,!  at 

Mi,.,l  f.,r  hefore  a  .Stipen.liary  Magistrate  or  two    Wilmington  in  room  of  one  of  the  othern.     No 

.luHtices,  they  Hhoul.i  n..t  have  their  costs.  ,!,),,•«  articles  were  Hih'ne.l,  hut   there  Mas  evi- 

I  hi  Ann,  \..\.  I).,  104.    .lence  to  jirove  tliat  the  master  hail  uolitraeteil 

to    )iay    tr)   eauh    of    the    proniovents    certain 

ll.i.  Scamoil  -  Injur)'  to,  In  servlCP-  spe.iHe.l  sums,  in  three  e,|ual  instalmenlM. 
When  a  seaman  who  has  shipped  for  a  wliole  The  eontraet  was  al.solnte  as  to  two  of  tlie 
vnyane  is  injured  in  the  service  of  the  ship,  ami    instalments,  and   as  to  the  third,  there  was  a 

i"  left  at  an  intermediate  port,  he  is  entitled  to   c lition   that    it  was  to   he   luiid  only  if  the 

wu'.s  for  the  whole  voyage.  elainmnts'  conduct  weie  Hitisfactorv. 

\Micre  the  master  furi.i.shed  such  seaman  at        //,/,/,  {].)     That  this  was  not  an' ordinary  en- 
tile intermediate   |)ort   with    surm'ieal   aid   and    gagenient  for  seamen's  wages.  Imt  a  special"  con- 
with  maintenance,  the  sums  e.vi)ended  tlierefor    tract. 
'imint  he  set  oil' against  hi.s  wages.  (2.)    That  previous  to  tl- Admiralty  Court  Act 

(,hmin,  whether  the  master  is  hound  to  fur-  of  l,S(il,  '24  Vict.  c.  10.  the  High  Court  of  Ad- 
nisli  snch  a.ssiHtance.  ,„i,„lty  had  no  jurisdiction  over  such  contracts. 

l!'i'-'o„  v.  AVf,xs «/  f,/.,  1  Thorn.,  (1st  Kd.).  4S  ;        (.•{.)     That  thi.s  Act  did  not  extend  to  the  Vice- 

('2iid  Kd.),  7.").    Aclmiralty  (^mrtH,  nor  were  the  provisions  re- 
])ecting  s])ecial  contracts,  emhraced  in  its  tenth 

n«.  Seaman -Mt'dloal  attendance  for-  section,  extended  to  those  Courts  l.y  the  Act  of 
ilie  (letendant's  vessel,  the  (Uengarry.  left  ISti.S,  'Jrl  Vict,  c  •>4  sec  10 
Liverpool.  UK,  with  a  full  crew,  hound  for  (4.')  That,'alth..ugh  the  commission  formerly 
.MiniMiichi,  N.  15.  After  she  had  heen  .ome  issued  to  the  Viee-Admiralty  .Judge  empowere.l 
liHUis  at  sea  a  stowaway,  known  on  hoard  l.y  i.j,,,  "  to  hear  and  determine  all  cau,se.s  according 
the  imine  of  .Sterns,  appeared  on  deck.  As  he  to  the  civil  and  nuiritime  laws  and  customs  of  our 
couM  not  he  put  on  shore  he  was  permitted  hy  High  Court  of  Admiralty  of  Knglan.l,"  yet  this 
the  master  to  sign  the  ship's  articles,  at  nominal  p„„.t.r,  like  .son.e  others  assume.l  to  be  bestowe.l 
wages,  after  which  he  performed  the  duties  of  a  i,y  the  commission,  is  fre.|uently  inr.perative, 
-emnun  until  severely  injured  hy  a  fall  from  a  and  that,  therefore,  this  Court  has  no  jurisdiction 
yanl  .,f  the  shii).     In  the  ccmrse  of  her  voyage    j,,  ,.ases  like  the  j.resent. 

thevesselputinto.Sy.lneyHar,  and  .Sterns,  who  //,/,/,  «/.vo,  that,  although  the  respon.lents 
ws  then  suffering  fr<un  disease  resulting  from  „.ere  boun.l  to  have  objected  to  the  jurisdiction 
.inn,Hre8  and  want  of  proper  attendance,  was  ;„  /;„,;,,,,  by  appearing  un.ler  protest,  still,  that, 
hroiiglu  by  the  master  to  the  plaintiff,  to  wh.,n.  ^here  the(\,urt  is  .,1  opinion  that  it  lins  no  juris- 
the  iimster  represente.l  that  Sterns  was  a  .sea-  .lietion,  it  will  not  only  entertain  the  objection 
i.mn  who  had  been  injured  in  the  .lischarge  of  at  the  hearing,  but  is  boun.l  it.self  to  raise  it. 
Mduty.  and  pledged  the  credit  of  theownerfor  y/,.  Cifi/  of  P't.rhur,,,  1  Old.,  S14  ;  V.  A.  1)..  1. 
Ills  siip]Hirt  and  maintenance. 

H'I'I,  that  the  contract  made  by  the  master       119.     Seamen -Wages  Of— Actlon  by  mas- 

"ithplaintiff  was  within  the  scope  of  his  author-    ter  and   three   seamen   for   their   wages.     The 

ity  as  master  of  the  vessel,  and  was  binding  upon    accounts  |>ro<luced  by  the  master,  who  had  al.so 

'lie  imiier.  acted  as  ship's  husband,  were  extremely  unsutis- 

IVu/xh  V.  McDovntd,  1  X.  S.  1).,  87    factory  and  unreliable.     He  claimed  a  balance 

due  him  of  .S317.SO.  but  failed  to  establish  his 

llj.    Scamen-The  owner  of  a  wrecked    right  to  more  than  .*i34.S0.     There  was  nothing 

nwel  m  not  bruind  to  defray  the  return  passage    against  the  demand  of  the  other  proniovents, 

"    le  seamen.  and  the  amounts  claimed  were  awarded  them. 

I  he  transfer  of  the  materials  of  a  wrecked  The  sums  so  recovered  were  all  under  84(t. 
vessel  hy  the  master  for  that  purpose  held  not  and  as  therefore  they  might  have  been  sued  for 
t'l  change  the  property  in  the  goods.  before  two  Justices  of  the  Peace  or  a  -Stipen- 

Mtlancon  v.  Comeaii,  James,  37;^.    diary  Magistrate, 


1299 


SHIPPING. 


1300 


/M/,  tliat  tlic  proinoventH  iIkiuIiI  not  have    1876  —  Merchant  Shipping  Act,  1854  — !•.,  u 


tlieir  costs 


Th  Auii,  Y.  A.  IV,  104. 


HJiip  owiioc  ill  Yiiiiiioiitii,  N.  >S.,  eiiiplnytd 
iiH  \m  agents  in  Liverpool,  ■].  .&  Co.,  tln' 
(lefeiiilant   .1.    l>einn  a   iiieuilier  of    tlu'ir   tirin, 

._    .  .  anil,  iiH  agents  in  Xe»  York,  lie  employed  iIk 

aH'ected— The   title   to   a    IWitish   »liip   is    not    (j,.,,,  „f  s.  p.  11.,  of  which  the  defenilanl  .S.  wa» 


I'iO.    Title  to   BrItlHh  tthlp  -  B)    what 


atl'ecteil  liy  the  delivery  of  a  writ  of  execution 
to  the  Siieritt'  against   the  owner  of  tjic  ship 


a  nieiiihev.     In  the  course  of  his  dealiii;,'-*  with 
tliese  agents  he  hecanie  indebted  to  hotli  tirin 


Nothing  will  ufl'ect  such  title  except  registry,  as    f„r  acceptances  hy  tliein  of  \\\i  drafts  niuile  wlan 


refjuirud  hy  the  Merchant  Shipping  Act  of  IS,'>4.    \ 
Cnfiooii  (I  III.  V.  Marvoii-,  I  Old,,  14S 


121.  Transfer  of  -PurcliaMe  of  IntcrcHt  In 

shipping  by  alien— I'laiiitiff,  being  an  alien,  jiur 


tie  v.-iis  ill  want  of  money,  towards  the  p:iyiiii'iii 
)f  which  they  received  the  freights  of  hit  vc-ihiN 
ami  remittances  in  money,  On  one  occatiDii  Ik 
said  that  he  would  give  to  the  Liverpool  tinu  ii 
mortgage  on  the  "Tsernogora"  or  the  "  Mai; 


chased   from  A.  S.  one-fourth  of  the  .schooner  nolia,"  when  they  should  require  it,  and,  In  ;i 

Anaconda.     The  purchast  nioiicy  was  paid,  but  subsequent  conversation  with  a  iiienilitT  of  tin 

there  was  no  contract  in  writing,  nor  any  bill  of  jj,,,„^  j,^,  ngceed  t(,  give  such  mortgages  on  hi 

fcale  executed,  nor  was  any  bill  of  sale  or  transfer  j^j,,  conditions,  which  were  not  carrieil  out.    Hi' 

ever  demanded  by  plaintirt",  but  it  was  agreed  nin„  piomiseil  the  firm  in  New  York  to  give  tliim 

that,  in  the  event  of  A.  .S,  (who  was  still  to  be  syeupity    "in  case  anything   happened.''    and 

considered  sole  owner  as  regarded  third  parties)  nn-ntioned  as  such  security  a  mortgiige  on  tin 

Hclliiig  the  three  remaining  fourths,  he  sliould  "Tsernogora."     According  to    F.'s   own   stair 

also  sell  the  plaiiititTs  foiirtli.  nient,  he  had  sutticient  property  to  p,iy  IiIm  liii 

A.    .'^.    having   died,    his   executors   sold   his  ),iiitit,s  ^yhen  the.sc  conversations  took  place.    A 

interest,  but  did  not  sell  that  of  plaintitl',  «  ho  few  weeks  after  these  c(mversations  K,  exieuteil 

then  brought  his  action  for  breach  of  the  agree-  ^^  mortgage  of  •_'(»/04  shares  of  the  "Tseiiiognia," 

ment.  in  favor  of  the  defendants  J.  &  S.,  and  had  tlu' 

Hfhl,  that  plaintirt',  as  an  alien,  being  dis(iuali-  j„j,„g  pecorded,  and  within  thirty  days  their 

fied  from  taking  a  bill  of  sale  or  transfer  of  a  ,ifte,.  jj  ^^rit  of  attach'.nent  in  insolvency  wa> 

British  vessel,  under  IT  and  is  Vic,  c.  104,  and  issued   against    him.      The   plaintirt',    who  wa- 

the   agreement   sued   on   being  an   attempt    to  appointed  as.signee  of  F.'s  estate  by  his  citMlitoi 

,      ,.       .,.     .     .         ,  1.     .1 c 1  J. .  .,  ._  ..i  ..  .:  1 ..     .1.,;. 


filed  a  bill  to  have  the  mortgage  set  aside,  eklin 
ing  that  it  was  void  under  section  l.'J.S  of  tin 
Insolvent  Act  of  1S7.').  The  defendaiii  ,1.  ilil 
not  answer  the  plaintitt"8  bill,   and  the  dtlui 


as  made 


evade  the  Statute,  could  not  be  enforced. 

Cnllai  v.  Mi-Farlam:  et  a/.,  I   N.  S.  I).,  468. 

122.  Transfer  of  shares  In  vessel-Mer-  ..„,  „..„ ^  , _ 

chant  Shipping  Act  — AV.  H.  M.  made  an  '  ,ipfg„(iants  denied  that  the  mortgage  was 
assignment  to  plaintirt',  for  the  benefit  of  his  j,,  contemplation  of  insolvency,  and  also  elainieil 
creditors,  of  his  entire  property,  including  a  ^\^g^^^  ^s  it  was  made  under  the  provisions  of 
iiumlicr  of  shares  in  the  schooner  O.  \V.  Moore,  t],^  Merchant  Shipping  Act  (Imperial),  it  wa> 
but  no  bill  of  sale  of  the  shares,  as  reciuired  by  „„t  affected  by  the  Insolvent  Act  of  l!S7.").  Thi' 
the  Merchant  Shipping  Act,  was  tither  execut-  ■  Judge  in  Kiiuity,  before  whom  the  cause  was 
ed  or  delivered  to  plaintirt".  1).  &  ^L,  having  heard,  made  a  decree  in  favor  of  the  plaintiff. 
obtained  a  judgment  against  \V.  H.  M.,  issued  and  ordered  the  mortgage  to  be  set  aside. 
Ik  writ  of  execution  under  which  defendant,  as  ,  ^^^  „^y,ga/  /o  the  Suin-emt  Court  '^f  Korn  Srotiti. 
Sheriff,  levied  upon  the  shares  and  proceeded  to  ^^  ^^^^  ^^^^^  ^ji^.  provisions  of  the  Insolvent  Aft 
sell.     Prior  to  the  sale  plaintiff  appeared  before    ^^j  ,j^..'^  ^^.j^jj  ,.egj,ect   to  conveyances  made  In 

the  Registrar  of  .Shipping,  and,  after  making  a  .     .        -•       .    -— -i ►..•. 

declaration  of  ownership,  was  entered  upon  the 
register  as  owner  of  the  shares. 

//M,  that  plaintirt"  had  no  ei|uitable  right 
which  could  he  so  asserted,  or  which  could  pre- 
vail over  the  judgment  creditor  and  the  levy 
made  by  the  defendant. 

Moffat  v.  FeriiiisoH,  6  R.  &  (f.,  217  ; 
6  C.  L.  T.,  322. 

123.  Transfer  within  thirty  days  In  con- 
templation of  insolvency— Fraudulent  prefer- 


contcmplation  of  insolvency,  apply  to  mortgagf- 
on  ships,  notwithstanding  the  provisions  of  thv 
Merchant  Shipping  Act  ns  to  such  mortgage'^. 
and  the  Imperial  Act  to  remove  doubts  as  tn 
the  validity  of  Colonial  laws. 

Weatherbe,  J.,  ilitxentiiKj. 
Kinney,  An^ignee,  v.  Join  letal.,  5  R.  &  (1..2W 

On  appeal  to  the  Supreme  Court  of  Caita'la, 
Held,  affirming  the  judgment  below,  Heiiiy. 
J.,  (lU'<entlmi,  that  the  promise  to  give  security 
in  case  anything  shouhl  happen,"  couUl  only 


ence  under  aection  133  of  Insolvent  Act  of  j  mean  "incase  the  party  should  go  into  insui 


ISOl 


SOLICITOR. 


1302 


vi'iu'y,"  anil  tliiit  tliu  traimfcr  win  void  iiiidt'i' 
K'ltioii  |;J3  of  thf  Insolvent  Act  of  1S7'>. 

//»/(/,  n/so,  that  tiio  provinionst  of  the  Mor- 
chant  Shipping  Act  did  not  prevent  the  prop- 
erty in  tliu  Nhip  passing  to  tiic  axHigneu  under 
till'  luNolvciii  Act. 

Joii'x  V.  Kiiuinj,  II  ,S.  C.  K.,  "OH. 

124.    TraiiNfpr  of  vessel  -34  Oeo.  3,  c.  68, 

Bcc.  14,  "  No  tran.tfer,  contract,  or  agreement 
for  tranHfer  of  property,  of  any  Hlii[)  or  ve».sel, 
aiiiiU  lie  valid  oi'  eft'ectual,  for  any  purjio-se  w  luit- 
ever,  either  in  law  or  in  eijuity,  iinlens  it  shall 
lif  made  hy  hill  of  sale,  or  instriunent  in 
wiilinj.',  etc." 

'I'lif  preainhle  nientionH  only  Nhi[).t  tiansferred 
tn  liriti.>(Ii  suhject.'*,  hut  tlie  enacting  part  makes 
i;ii  rcfei'enet'  to  the  preanilile. 

Hi  III,  that  the  regulation.^  of  the  .-Vet  applied 
tip  fonigneis. 

Thi   Frii  iitl'i  Ailriiihifi ,  .Stewart,  '-'(K). 

1'2.>.    Uliarfage  recoverable  under  In- 

dehitatua  assumpsit —Wliarfage  i.s  recoverahlc 
umlcr  CDiintH  of  iiiih  liiiatn  <  uiiiim/i^if,  tiiat  heing 
the  proper  form  in  w  hich  to  jiroceed. 

J)i  ll'o//"  V.  Puiiihiiyil  It  a/.,  :i  X.  S.  ]).,  •_>-_>4. 


BliANDEK 


Si-  DEFAM.ITFON. 


SL.WE  TRADE - 
1.   I'll  cumstances  to  prove  vessel  engaged 

in  trade— The  general  princijilen  of  tlie  law  of 
imtions,  and  the  fact  that  the  slave  tra<le  u  pro- 
liiliittd  by  the  laws  of  the  United  State.'i  have 
W'li  established  ii>  the  cases  of  the  Aniedie 
and  the  Fortuna.  A  claimant  cannot  lecover 
jH'ojierty,  employed  in  a  course  of  trade  which 
is  against  the  laws  of  humanity,  and  in  defiance 
of  the  laws  of  his  own  country. 

It  ir<  not  necessary  to  have  slaves  actually  on 
lioard.  It  is  sufficient  if  the  unlawful  trafbc  was 
cither  incipient,  progressive,  or  complete.  All 
tiiat  is  necessary  to  do  is  to  establish  the  fact 
of  trading.  This  may  l>e  proved  l)y  direct  evi- 
dence, or  by  circumstances.  Where  the  slaves 
«re  not  actually  on  board,  it  may  often  be  diffi- 
cult to  find  direct  proof.  Little  attention  can 
lie  [aid  to  the  evidence  of  men  suspected  of 
liciiig  engaged  in  the  trade,  when  the  circum- 


Htance.s  are  deciHivcls  against  their  teHtimony. 
There  are  Mi^ven  charai'teristie  I'lrciimit'inci'*  of 
a  slave  voyage.  Five  of  them  occur  in  th  ^case. 
There  have  been  fouml  on  board  a  number  of 
small  arms,  a  great  ijuantily  of  water,  rice  and 
slaves'  provisions,  mess  kits  .md  shackels.  Tliif 
two  other  circumstances,  namely,  bulk  heads 
anil  main-deck  grating.*,  would  be  unnecessary  in 
a  small  vessel  like  tlie  present.  If  this  vessel 
Was  going  for  gum,  ivory  and  the  other  innocent 
articles  stated,  wiiat  can  account  for  their  hav- 
ing on  board  so  many  things  pecidiar  to  the  slave 
trade,  but  totally  nmiecessary  for  tlie  other 
species  of  commerce.  N'essel  and  cargo  con- 
demned. 

Th  Sfi'iTH,  Stewart,  'J.S4. 

2,  I'onecalmont  of  American  property  un- 
der Spanish  character — Vessel  and  cargo  were 
lioth  claimed  as  .Spanisii  jjroperty.  The  cargo 
Was  shipped  at  I'hiladelpiiia,  from  whence  the 
vessel  sailed  upon  the  I7th  day  of  July,  \HU>, 
for  Santa  Cruz,  in  Tenerifte,  intending  to  sail 
from  that  island  to  the  coast  of  Africa  to  pur- 
cliase  slaves. 

Hy  the  decision  of  the  Lords  of  Appeal  in  the 
case  of  the  Amedie,  it  was  established  tliat  this 
trade  was  unlawful  in  itself,  and  that  claimants 
cannot  recover  property  emi)loyed  in  it,  unless 
they  can  show  a  special  justiHcation,  that  it  is  a 
permitted  trade  under  the  hiws  of  their  own 
countiy.  It  follows,  therefore,  that  if  this  pro- 
perty siiould  prove  to  be  American,  it  would  be 
coiulemnable  under  the  authority  of  that  case 
directly.  Hut  if  it  belonged  to  Spaniards,  as  it 
has  l)een  claimed,  it  remained  for  the  parties  to 
sliow  the  legality  of  the  trade  by  the  laws  of 
Spain. 

//■(  III,  from  a  large  mass  of  evidence,  that  the 
real  property  in  this  case  was  ni  an  American 
citizen.     Vessel  and  cargo  condemned. 

La  Morrd,  Stewart,  205. 


SMUGGLIXG. 
Conviction  for  -Forfeits  the  vessel,  though 

the  owner  be  innocent. 

rh<  SSniirni/,  V.  A.  I).,  267. 

Se,  REVEME. 


SOLKITOB- 
S^e  ATTORNEY. 


1303 


SOVEREIGN,  THE. 


1:10+ 


Queen's  Counsel  and  tlio  ii'unliition  of  \nxxv- 
deuce  ivt  the  liar  "f  N.  S.  liy  the  Lieiileiiaiit- 
(Invernor  of  the  I'lovince  in  Council,  are  infra 
riris,  l)ut  the  latter  i.s  not  to  he  eouMtiucd  ,ia 
retrospective  in  its  eti'ect. 

.Janien,  .1.,  ili-d-ntliii',/,  as  to  tlie  latter  Act  imt 
'2.      frown  OfBCCrs-CommlSSlons  of  AttOr-    being  retro8])e(tive. 
nev-'Jeneral  and  Solicitor-(ieneral  ordeied  to  l)e 


SOVEREItiX,  TIIE- 
1.   Crown  cannot  be  sued  or  enjolned- 

Remedy  by  petition  of  right— 

Sft  CROWN,  1. 


irded. 


James,  IS'i. 


3.    Crown  property  -  Right  of  Crown  in 

expect  of  tre.--i)asse.s  not  limited  by  4tii   R.  S., 
'-  *    CROWN,  3. 


The  old  (;reat  Seal  of  tlie  IVovince— that  lit 
use  since  1S37  —  useil  on  patents  appointing 
(^tueen's  Counsel  an<l  regulating  precedence  iit 
tlie  Har  in  IStJT,  ceased  to  be  the  (ireat  So.'l  nf 
the  Province  on  the  transmission  of  anew  (iicut 
Seal  to  the  Lieutenant-! nivernor  in  Deccmlicr, 
1S60,  though  not  adopt eil  or  proclaimed  iiy  tlu> 
Lieutenant-(!overnor  in  Council,  .lames,  .1., 
(//.<>•«  ii>iiii/. 

Wilkins.    .1.,    agreeing,    but     expressing    tile 

111  tlie 


4.    Crown-SuHbj -Second  plea  without 

leave— 111  an  action  on  a  bond  for  ?^4IH»  at   the 

suit  of  the  Crown  against  the  principal  and  one  opinion  that  the  ])resence  of  a  (ireat  Seal 

of   the   sureties,  the   defendants   pleaded   more  dnounient    in    <iuestion,  atiixed    by    the    proper 

tlian  one  plea  without  leave  and  the  plaintitTa  ntticers,  raised  a  conclusive  presumption  as  to 

attorney  treating  the  plea  as  a  nullity,  on  the  \^g  validity. 


groun<l  that  theCnnvn  was  not  bound  by  section 
178  of  the  Practice  Act  (allowing  a  second  or 
subse(|uent  plea),  marked  default  and  without 
tiling  any  record  entered  judgment,  without  any 


In  r>   rr-riihiin  n/Rllrlil',  O-  C'.,-JH.&('.,  4.")(l. 
On  (iji/i'dl  to  thi  Siiimmi   Court  of  Canmla, 
By  37  Vic,  c.  -20,  X.  S.  (1S74),  the  Lieutenant- 


assessment  of  damages,  upon  which    execiitifin    (Jovernor    of    the    Province    of    Xi'va    Scutia, 


was  issue<l  indorsed  to  levy  for  a  sum  less  than 
eighty  dollars. 

H'/il,  on  appeal  from  the  County  Court,  that 


was  authorized  to  appoint  Provincial  otticers 
under  the  name  of  Her  Majesty's  counsel  learnid 
in  the  law  for  the  Province.     P>y  'M  Vic,  c.  'Jl, 


the  judgment    was  properly   set    aside    by    the    X.    S.     (1S74),    the    Lieutenant-(ioveruoi 


County  Court  .Judge. 

V«';"(  V.  Bain.-<  tj  ril.,  8  H.  &  <i.,  '.'7lt. 

5.  Ejectment  against  officers  ofthe  Crown, 


authorized  to  grant  to  any  member  of  the  bar  a 
patent  of  precedence  in  the  Courts  of  the  I'lo- 
vince  of  Xova  Scotia.  R.,  the  respondent,  uas 
appointed  by  the  (;overnor-<ieneral  on  the  •JTtli 
December,  under  the  (ireat  .Seal  of  Canada,  a 


S,,nU.,^  that  where  an  Act  vests  the  property    ^^^^^^^^,^  ^^^^^^^_^^^  ^^^^^^  ,,y  ^,^^  ^„^if^„.„,  ^^^^^-^^  .,, 


in  the  otticers  of  the  Crown,  ejectment  to  test 
the  title  will  lie. 

Kmnny  v.  Crnlmaa  it  uL,  4  R.  i.t  (i.,  ~.S 


«.    iirants  by  the  Crown - 


the  Ciuirt   he  hail  preceileiice  overall  nieinbers 

of  the  bar  not  liolding  patents  prior  to  his  hmii, 

By  letters  patent,  dated  'JOth  \'ay,  isTfi.  under 

the  (ireat   Seal  of  the  Province,  and  signed  liy 

*'    OR-iNT.    the  Lieutenant-( Governor  and  Provincial  Slvii' 

tary,  several  members  of  the  bar  were  ai)p<iiiite>l 

1.      Llen-None  on  goods  of-  Queen  may    Queen's  counsel  for  Xova  Scotia,  and  precedence 

bring  replevin  — The  goods   of   the   .Sovereign    was  granted  to  them,  as  well  as  to  other  (^Uieen's 

cannot  Ik;  detained  under  a  claim  for  lien.     A    counsel  appointed  by  the  (iovernor-(ieneral  after 

defendant  cannot  plead  double  or  several  mat-  ,  the  1st  of  .July,  1S67.     A  list  of  Queen's  counsel 

ters  in  the  case  of  the  Crown.  \  to  whom  precedence  had  been  thus  given  by  the 

The  Queen  can  bring  replevin  under  4th  R.  .S.,  1  Lieutenant -(iovernor,    was    published    in    the 

c  94,  S.329.  i  iioyal  accJtt  of  the  •27tli  May,  187(5,  and  the 

Qmtn  V.  Fruftr,  2  R.  &  C,,  431.  i  name  of  R.,  the  respimdent,  was  included  in  the 

list,  but  it  gave  precedence   and   preaudience 

8.  Right  to  seize  chattels  under  raort-  '.  l^efore  him  to  several  persons,  including  appell- 
gage—  ^nis,  who  did  not  enjoy  it  before. 

Stt  CROWN,  4.  I      Upon  affidavits  disclosing  the  alwive  ami  otiier 
'  facts,  and  on  producing  the  original  comniissinn 

9.  Sovereign  forms  no  part  of  Provincial' and  letters  patent,  R.,  on  the  3rd  Janimry, 
Legislatures  as  she  does  ofthe  Dominion  1877,  obtained  a  rule /(Mi  to  grant  him  rank  ami 
Parliament— Cliapters  20  and  21  of  the  X.  S.  precedence  over  all  (Jueen's  counsel  appointeil 
Acts   of    1874,    respecting  the  appointment   of  i  in  and  for  the  Province  of  Xova  Scotia  since  the 


i;i05 


SPECIFIC  PERFORMANCE 


1800 


•Jtith  Ueufinljur,  H7'-',  and  t<i  set  iiniilf,  so  far  as 
lliry  iitt'cctod  K.'.s  pifcfdence.  tlie  lettuis  patent 
I'.iitL'd  the  -.'(itli  May,  IfSTti.  Tliis  rule  was  made 
alisoliiti!  liy  the  .Sniiit'ine  Conrt  of  Xova  Scotia, 
on  the  •Jtith  Marcli,  l.sTT.  A  preliniinaiy  ol.jfc- 
tion  was  raised  to  tiie  jurisdiction  of  the  Supreme 
('(lurt  of  Canada  to  licar  tie  appeal. 

//'/c/,  — I.  That  the  judyinent  of  tiic  Court 
hclow  was  one  from  which  an  appeal  wouhl  lie 
t(.  tlie  Supreme  Court  of  (  anada  (Fournier,  .1., 
dis^i  iitiiiij). 

•J.  Ptr  Strong,  Fournier  and  Taschereau,  J,). 
-Tiiat  e.  -il,  of  .S7  Vic.  (Acts  1S74  of  X.  .S.) 
h;i>  not  a  restrospective  etlect,  and  tliat  the 
li'ttcrs  piitunt  issued  under  the  authority  of  that 
Act  could  not  affect  tlie  prccedeUee  of  the 
(.•iicen's  counsel  appointeil  liy  tiie  Crown. 

.S.  /'if  Henry,  Taschereau  and  (iwynne,  JJ. 
-That  t:;e  15.  \.  A.  Act  has  not  invested  the 
Lei.'islatures  of  the  I'lovinces  with  any  control 
o.ir  the  appointment  of  t^Uieen's  coun.sel,  and  as 
Her  Majesty  forni.s  no  part  of  the  I'rovincial 
Ltjiislatures,  as  she  does  of  the  Dominion  Par- 
liament, no  act  of  any  such  Local  Legislatuie 
e;iii  in  any  manner  impair  or  atFect  her  preroga- 
tive right  to  ai)point  Queen's  counsel  in  Canada 
<liiectly  or  through  her  representative,  the  (Jov- 
tiiinr-Oeneral,  or  vest  sucli  prerogative  riglit  in 
till-  Lieutenant-Covernorsof  the  Provinces  ;  and 
tliiU  ,S7  Vic,  c.  •_>(»  and  iM,  X.  S.,  are  ultra  -vV..s 
iViii!  void. 

■|.  fi^r  Strong  and  F..urnier,  -J.J.— Tliat  as 
tiiis  Court  ought  never,  e.vcept  in  cai^es  when 
Muli  adjudication  is  indispen.sahle  to  the  de- 
cision of  a  cause,  to  pronounce  upon  the  consti- 
tutional power  of  a  Legislature  to  pass  a 
■Stiitute,  there  was  no  necessity  in  this  case  for 
tiioni  to  express  an  opinion  upon  the  validity  of 
tlif  Act  in  (juestion. 

f.iXoir  V.  li'ifchi(,  ;<  S.  C.  H.,  ti7(i. 


SPEIIFIC  PERFORMAXE. 


1.    Action  to  fonipel  the  dillvery  of  an 

insurance  policy— Plaintili' hroughi  tiiis  suit  to 
compel  defendants  to  deliver  to  hin.  a  policy  of 
insurance  for  .SWH*,  alleging  that  they  had"  re 
ceived  his  premium  m  the  •27th  Xov.,  I,sti7,  anil 
unilertaken  to  insure  his  hou.se  for  ;•.  year  from 
tliat  date,  and  to  deliver  a  policy  to  that  etlect. 
The  liuihling  was  destroyed  hy  lire  in  I)ecemlier, 
1.S77.  Defendants  alleged  that  they  had  heen 
induced  to  enter  into  the  contract  l.y  the  mis 
rep;esentati(.n  of  plaintitt,  -that  the  liuihling 
.Society  were  ahout  to  advam.'e  .S(i(H)  on  the  pro- 
perty, and  that  they  h..a  ...idertaken  to  insure 
it,  not  for  the  plaintitf,  luit  for  the  .Society. 
After  the  hearing  plaintift".s  counsel  asked  for  a 
decree  for  a  policy,  and  aliso  foi'  the  payment  of 
the  money. 

ffil'I,  that  even  if  .such  relief  could  l>e  granted 
it  could  only  lie  upon  a  hill  asking  for  it,  where 
as  plaintitl'  had,  in  his  writ,  only  asked  for  a 
policy;  and  further,  that  as  the  evidence  was 
directly  in  contlict  on  the  point  as  to  misrepre- 
sentation, and  as  to  the  terms  of  the  contract, 
plaintiff  should  he  left  to  his  remedy  at  law. 
.Vini/hfr  V.  77(1  (,)iiii-ii  /«.<.  Co., 

H.  K.  1).,  .•}J7. 

2.  Contract  in  regard  to  after  acquired 

goods  so  uncertain  that  specific  performance 
refused  — 

S'    ASSIGXMEM,  I.  (i. 

3.  Damages  already  obtained  —  Where, 

in  an  action  for  specific  performance  of  a  con- 
tiact,  the  phiintiftclaimed  and  ol)taineil  damages 
for  the  non-fulhimei!t  thereof,  the  Court  re- 
fused to  decree  specific  performance. 

Mr  Ami  V.  a  mi/,   Cochian,  .V_'. 


SPECIAL  DAMAtrES- 


SPECIALTIES. 
Tlie  word  «' Specialties "  In  chapter  19 

^-  ^-  (3rd  series),  section  10,  made  void  when 

given  for  intoxicating  liijuors  sold  in  (|uantities 

Im.s  than  one  gallon,  does  not  include  judgment. 

Laicrtiia   v.  Mchouald,  1  X.  S.  D.,  41,S. 


4.  Puffer  -Employment  of-  Suit  for  spe- 
cific performance— The  fact  of  putters  heim.' 
emiiloyed  liy  a  vendor  at  a  puMic  sale  of  a 
nu!iilier  of  lots,  although  none  were  proved  to 
have  hid  on  the  particular  lots  which  the  vendee 
OAMAGESi  "'^''^''^''^  to  purchase,  was  held  to  he  a  good  ground 
of  answer  to  a  hill  hy  the  vendor  for  specitic 
performance ;  and  a  Court  of  Kijuity,  in  such  a 
case,  instead  of  recjuiring  defendant  to  prove 
that  some  of  the  organized  puffers  had  hid  on 
the  particular  lots,  might  well  call  upon  the 
plaintiff  to  prove  that  none  had  hid  or  heen  in- 
stiiictedto  hid  thereon.  Kven  though  defend- 
ant sign  the  conditions  of  sale,  a  Court  of  Eijuity 
will  not  necessarily  compel  him,  in  a  suit  for 
specific  performance,  to  complete  his  purchase, 
where  a  mistake  made  by  the  plaintiff  or  his 
agent   in  plans  circulated  and  used  at  the  .sale 


1307 


STATUTES,  DOMINION.    (1867,  Ch.  (5-9.) 


130s 


liiul  itiisltMl  luul  pifjudicud  liiiii,  Imt  will  Ifiive 

the  iiliiiiitiff  to  liis  remedy  in  aCouit  of  Com- 

iiioii  Law. 

J(  iiiiliiiis  V.  ffart,  1  11.  iSc  C,  I'l. 

.5.  Sale  of  lands -T.,  by  written  con- 
tract, ayreed  to  sell  to  D.  a  farm  for  i."'-»(»<»,  l)iit 
sul)se(|ueiitly  refused  to  execute  the  deed,  and 
forcilily  ejected  1).,  who  had  heen  put  in  posses- 
sion. I),  brought  a  suit  for  specific  performance, 
to  wliich  T.  pleaded  several  pleas,  attacking  the 
agreement  on  various  grounds,  hut  raising  no 
distinct  issue  of  circumvention  or  frauil,  though 
hy  way  of  recital  in  his  fifth  plea  he  stateil  that 
he  had  been  over-reached,  and  that  1).  had  by 
undue  idvantage  endeavored  to  obtain  his  prop- 
erty fo.  an  inadequate  consideration.  The  jury 
found  that  T.  was  not  incapaV)le  of  making  a 
()rovident  bargain,  that  the  agreement  was  duly 
explained  to  him  at  or  before  the  execution,  that 
1).  did  not  depreciate  the  value  of  the  farm  to 
him,  knowing  it  to  be  of  greater  value  than  the 
amount  of  the  purchase  money  ;  but  they  also 
founil  the  value  of  the  farm  to  be  i'JoO,  and 
that  1).  had  enjoined  on  T.  secrecy  as  to  the 
bargain. 

H(:l<l,  Bliss,  J.,  ilisstntiiKj.—Thiit  D.  was  en- 
titled to  a  decree  for  specific  performance. 

Po-  Bliss,  J.,  that  he  should  rather  be  left  to 
his  remedy  by  action  for  breach  of  contract. 

Doilijt  v.  Tiirnir,  1  Old.,  I. 

Ste,  a/so,  COXTR.it'T. 


ST.iKEHOLDER 
s     (iAMI\e. 


SIATITE8,  DOMINION. 
Power  of  Dominion  to  repeal  Local  .ict— 

Hdd,  that  the  Parliament  of  Canada  has 
power  to  repeal  so  much  of  the  Local  Act  relat- 
ing to  Absent  or  Absconding  Debtors  as  is 
inconsistent  with  the  provisions  of  the  Insol- 
vent Act. 

Ramsey  v.  Hare,  .3  R.  &  C,  4. 


1867,  c.  6,  8.  9- (Act  respecting  theCus- 
*"°"^~  See  SHIPPING,  43. 


1867,  c.  8,  s.  l.)6-(Inland  Revenue)- 

"  All  peudltm  and  forfeit  arts,  incurred  under 
this  Act  or  (1111/  other  law  relating  to  ccvme.  //Kiy 
he  prosecuted,  sued  for  end  recovered  in  iht 
Supi  rior  Courts  of  Law,  or  Coourt  of  Vici-Admi- 
ritltji  hiivinij  Jurisdiction  in  that  I'roviiut-  in 
Canada,  where  the  cause  of  proaecul ion  migcs,  ur 
n herein  the  defendant  is  served  with  prtwe^^t."  .yi. 

Per  Sir  William  Voung  in  the  Vice- Admiialty 
Court— 

If  a  Dominion  Act  were  to  attempt  to  i;ive 
this  Court  a  jurisdiction  analogous  to  that  of 
Admiralty  Courts  in  the  United  States,  ami 
excelling  that  of  the  High  Court  of  Adiiiiiahy 
in  Kngland,  I  would  have  no  difficulty  iu  huld- 
ing  that  such  an  Act  was  ultra  vires.  I  am  oi 
opinion  that  section  15(5  is  not  ultra  vires. 

Queen  v.  Flint,  V.  A.  I).,  •JSd. 

On  an  application  for  a  writ  of  prohiliitiun, 
the  Supreme  Court  of  Xova  Scotia 

Held,  that  the  Supreme  Court  could  pmliiljit 
the  Vice-Ailmiralty  Court,  and  that  the  section 
was  ultra  vires. 

Att'y-Oisu'l  of  Canada  v.  Flint  U  (d., 

3R.  &(l.,4.i3. 

On  apptul  to  the  .'injirtnit  Court  of  Canada, 

Held,  intra  rirtx. 
I  Cas.  Digest,  324  ; 

I  4C.  L.  T.,  117. 

1867,  €.  »,  s.  11- 

(Imposes  penalty  for  not  affixing  tiie  proper 
stamps  to  promissory  notes,  drafts  or  dills  of 
exchange,  and  declares  that  for  want  of  tiie 
proper  stamp  "such  instrument  shall  be  imudui 
'  and  of  no  effect  in  law  or  in  equity.") 
I  //. /(/,  that  where  a  note  had  been  read  in 
evidence  at  the  instance  and  <m  the  motion  of 
defendant's  counsel,  he  was  thereby  estoppe.l 
from  denying  its  validity. 

The  Bank  of  N.  S.  v.  Chipmnn, 

■2N.  .S.  D.,4as. 

Whore  a  promissory  note  is  defective  for  want 
of  a  stamp  the  plaintiff  uuiy  recover  the  aniouiit 
of  the  consideration  on  a  count  for  account  statuil 
notwithstanding  that  the  consideration  is  for  an 
interest  in  land. 

Fro^l  v.  Brninan,  3  N.  S,  1) ,  4i). 

1867,  C.  9,  s.  12  — 

(Provision  in  favor  of  innocent  party  by  whicii 
the  penalty  f'lr  defective  stamping  may  he  reme- 
'  died  by  double  stamping  "  as  soon  as  U  ncquirei 
'  such  hwwledye.") 

I  The  plaintiffs,  aa  soon  as  defects  in  the  stamp- 
i  ing  of  the  note  sued  on  was  discovered,  aftise^l 
'  stamps  of  double  the  proper  value  in  open 
I  Court. 


180!) 


STATUTES,  DOMINION.     (LSG7-l.SGy.) 


1310- 


//'/'/,  Wilkii'..",  J.,  '/i'-— /(/(';/</,  ihiit  iiiidef  sec. 
IJ  tiny  liiiil  f-iitistieil  the  rt'i|uii'ement8  of  tlie 
Statute. 

Tie  ltai<kiij'  X.  S.  V.  Chijunuii, 

•-'X.  s.  1).  4:w. 

Svt  BILLS  OF  EICH.\N(iiE  .\ND  PKOMIS- 

SORT  NOTES,  XI. 

1S«1, 1'.  11,  s.  II— (.ict  respecting  Bnnks- 

Kxeiiipling  the  Imiiks  fioni  any  iieimlty  nv 
("itfitiiie  for  usury,  iiiul  iiermitting  them  to 
c\iict  seven  per  cent,  wlien  tlie  mercantile  eom- 
iniuiity  could  only  take  six. 

('(infiiseil   state   of   interest   and   usury   hiTs 
'.■(iiniiiente<l  on. 

/i«/-ss  V.  Slroii'j,  1  N.  S.  D.,  4,")0. 

im,  c.  40-MilUia  and  Defence- 

Tlic  Militia  Act,  Acts  of  l!Sti8,  c.  4<l,  as  amend- 
ed liy  the  Acts  of  1S73,  c.  40,  and  the  Acts  of 
IsTit,  c.  .So,  authorizes  the  calling  out  of  the 
i]iiliti;il>y  the  senior  officer  present  in  any  locality, 
in  aid  of  the  civil  power,  for  the  purpose  of  pre- 
venting or  suppressing  riots  when  thereunto 
rci)Uired,  in  writing,  which  ivriting  shall  express 
•n  the  face  thereof  the  actual  occurrence  of 
,1  riot,  disturbance  or  emergency,  or  the  antici- 
IKitiiiii  thereof.  When  so  called  out  the  liability 
til  pay  for  the  services  of  the  militia  is  imposed 
upon  the  Mitnicipality  for  which  sucli  services 
are  itiiuired. 

.Several  companies  of  militia  in  the  Munici- 
piility  of  Cape  Hreton  were  called  out  in  piirsu- 
iike  (if  a  reijuisition,  which  read  :  "  It  having 
lieeii  represented  to  us  that  a  disturbance  has 
occurred  and  is  still  anticipated  at  Lingan,  be- 
VDinl  the  power  of  the  civil  power  to  suppress, 
villi  are  therefore  hereby  ordered,"'  &c. 

H'lil,  that  in  order  to  make  the  Municipality 
liiilile  for  the  maintenance  and  pay  of  tlie 
militia,  tlie  reipiisition  must  comply  strictly 
«itii  the  .Statute,  and  that  as  it  failed  to  ex- 
press nil  its  face  the  actual  occurrence  of  a  riot, 
iisturbaiice  or  emergency,  or  the  anticipation  of 
«iy,  but  only  set  out  a  representation  that  a 
■listurbance  had  occurred  anil  was  still  antici- 
iwied,  wliich  representation  might  have  been 
iijiind  on  investigation  to  be  unwarranted  by 
'.he  circumstances,  the  Municipality  was  not 
liiilile. 

Hi.ad  v.  The  Muitu^ijmiUy  o/Cn/tc  Bixtoii, 

7R.  *  G.,  -260; 
7  C.  L.  T.,  349. 

On  (tiijitiil  to  the  Stiprtmt  Court  of  Canada, 

fid'l,  that  the  re'juisition  was  sufiicieut. 

llie  Statute  also  provides  that   the  Munici- 


pality shall  pay  the  expenses  of  the  services  of 
tlie  militia  when  so  called  out,  and,  in  case  of 
refusal,  that  an  action  m  ly  lie  brought  liy  the 
officer  commanding  the  corps,  in  his  own  name, 
to  recover  the  amount  of  such  expenses. 

H'ld,  .Strong,.!.,  <U-:-<iiilii(ii,  that  where  the 
commanding  officer  died  pending  such  action, 
the  proceedings  could  lie  continued  by  his  per- 
sonal representative. 

Cnirt-Ji'iad  v.  County  of  Cujk  linton, 

U.S.  f.  K.,  s. 
Xeillier  the  Dominion  ,\cts  of  1H6S,  c.  40,  or 
of  IS7.3,  c.  4tj,  nor  4tli  H.  S.,  c.  •_»!,  s.  oA,  em- 
jKiwer  the  Supreme  Court  to  amerce  a  County 
for  charges  incurred  in  calling  out  the  at;tivo 
militia  under  tlie  iJominion  Act  of  1873,  c.  4(), 
to  (juell  a  riot. 

/)/  re  Ainerceintiit  of  Cape  Breton  Co., 

•-»H.  &C.,41(). 

1868,  f.  (to,  8.  23  -  (Fisheries  Act)-tf.. 
K.  S.  C,  c.  »3,  s.  20- 

•■  In  other  respects  the  Inns  relntintj  to  siim- 
nuiry  convictions  and  orders,  sh(dl  apply  to  cases 
under  this  Act.' 

Hi  Id,  that  under  this  section  an  appeal  lies  to 
the  Supreme  Court  fiom  a  conviction  for  penal- 
ties under  the  Act,  notwithstanding  that  sec. 
1(1,  sub-sec.  (j,  gave  an  appeal  to  the  Minister  of 
Marine  and  Fisheries, 

Qveen  v.  Todd,  1  R.  tV  C,  «•_'. 


1808,  c.  60-Cf.  R.  S.  C,  c.  95- Violation 


Of 


Ute  COXVEMION  OF  1818, 


1869,  e.  12,  8.  31  -  Cf.  R.  8.  C,  C.  118,  s» 

35  —  (Canada  Joint  Stock  Companies  Clauses 

Act)— 

"h'rtry  i:outract,  tiijrumint,  tnijaijunenl  or 
hanjain  tnudt,  and  fnry  hill  of  txchamjf.  drau-n^ 
uccipttd  or  indorsed,  and  trery  promissory  note 
and  cheque  made,  drau-n  or  indorsul  on  hiha/f 
of  the  Company,  hy  any  a-jent,  ojictr  or  strrant 
of  the  Company,  in  ijineral  accordance  with  hi.* 
pon-trs  as  such  under  the  liy-laics  of  the  Company 
"hall  lie  liindimj  upon  the  Company ;  and  in  no 
case  shall  it  lie  n>-Cessary  to  hare  the  stal  of  the 
Company  aMxed  to  any  such  contract,  aijreementf 
enijai/emcnt,  liarijain,  liill  of  exchumje,  promissoiy 
note  or  cheque,  or  to  prore  that  the  same  wa-t 
made,  draicn,  accepted  or  indorstd,  as  the  case 
may  be,  in  pursuance  of  any  JJy-lair,  or  special 
rote  or  order." 

See  CONTRACT,  31- 

Quaere,  whether  under  Acts  1869,  e.  \'2,  s.  31„ 
and  4th  Rev.  .Stats.,  c.  53,  s.  lij,  the  contract 
there  (CONTRACT,  31,)  sued  on  would  be  valid 
and  enforceable  without  seals. 


1311 


STATUTES,  DOMINION.      (1809,  Ch.  12-lU.) 


\:n-> 


1809,  C.  I'i,  8.  41-Cf.K.S.l'.,  f.  11S,8.4'2-    gnMiml  that  liiul  iki  oxi^ti-iu'e  « lit;ii  tlioj  inlcu., 
'•StrricK   of  all  inuniar  of  ■mminviit  or  n-ril    tlii'il' iippeal. 


ii-hatn-tr  upon  Ih:  Comjxiiiy,  may  '"  maih  hy 
liarl,..,  u  u,-y  'htnof  at  th<  otfiir  or  chii-j'  i<liiiy. 
o/  hifliuxs  o/'ht  Com/iuiiy,  n-iih  any  i/roirn  jn  r- 
io/(  //(  rhanii  t/i<  no/,  or  il-inrhin:  iriffi  Ih  I'n  si. 
iloit  or  Stcri-Jnry  Ih  rtof :  or  ij  Ihi  Comjiuiiy  fair, 
no  kiioirii  ojfin  or  chiif /ilan  of  l>ii->iiiis.i,uii(l  han 
no  k-iioirn  Priiiili.iH  or  Sirntary,  Ihtu,  u/ion  rcltirn 
lo  thai  iftd  •Inly  iirnd' ,  thi  Court  shall  onlir 
.such  iiuhliealion  as  it  mayilum  niiuisiii  lo  !>•■ 
mnili  in  tht  jrre.miM-.-,  /or  at  hast  om  month,  in 
at  lias'  oni  iii  irsjiain  r  ;  anil  such  /mliltration 
shall  In  h'I'l  tolii  iIhi  sirriui  ii/ion  th<  Company." 
I'liiiiitiff  eiitereil  on  the  rucunl  a  suggestion  tluit 

the  e'iinuila  Iminovenient  Company,  one  of  the 
.lefeniUmts,  was  absent  out  of  the  I'rovinee  wlien 

the  writ  of  sumuions  was  issued,  and  on  tliat 
account  couhl  not  lie  served  witli  process.     Tlie 

suggestion  was  not  traversed,  and  it  was  eon-    ^j^.^j  ,  .^^  ,^ 

tended  hy  defendants  tliat  it  liad  not  been  proved    ^.^^^         ,^f  jj^^jj 

at  tiie  trial,  and  tlierefore,  that  plaintitt'  should 

have  become  non-suit  under  4tii  Kev.  .Statutes, 

ea)).  94,  sees.  ;U"  and  .'{.")(),  and  furtlier,  that  tlie 

defendant  coidd  liave  been  served  under   ■section 

41   al)ove,  nuule  applical>le  to  tliis  company   l)y 

cap.  lUO  of  187-',  sec.  !). 

//I'.ld,  that  the  suggestion   if  tlie   truth  of  it 

was  denied  sliould  have  been  traversed  by  de- 
fendants, and    that  the  section  of    liie  Canada 

Joint  .Stock  Companies  Clauses  Act  referred  to 

did  not  enable  service  to  l)e  made  l>y  any  other 

than    the  accustomed   otticer,    nor    l)eyond    the 

jurisdiction  of  the  Court. 


//(  /•<   7'hos.  Arrhilinlil  ami  Jiiltn  Ar'iiilitilil^ 
Insolri  iits,  •_>  X.  s.  i).,  ;(ii;j 


(Iriijory  v.  Tlu.  Hali/ax  it  C.  li. 

li'y  A-  Coal  Co.  tt  «/., 

4  R.  &(i.,  430. 


1800,  c.  10,  s.  '20  and  20  - 

A  writ  of  atlai'inneiit  underthe  Insulvfiil  .\it 
of  IS(i!t  iiuving  been  issued  at  the  iiistaini'  dt 
plaintiff  against  defendant,  the  latter,  thuiil;iy> 
before  tile  return  day  of  the  writ,  prniinvil  a 
rule  nisi  to  set  the  attaciiment,  the  writ  .iiid 
otiier  proceedings  tliereon  aside.  The  rule  wiis 
taken,  among  other  things,  on  leading  tlii'  iitti 
davit  of  ilufendant  sworn  befoie  William  Aikiii>. 
designated  as  a  commissioner  for  taking  atiiiliivit.- 
to  lie  used  in  the  Supreme  Court,  CoiiMty  dt 
Colchester,  and  the  affidavit  of  Joseph  Xnniian 
Ritciiie,  sworn  at  Halifax,  ))efore  C.  M.  Xiutiiig, 
a  commissioner  of  .Supremt^  Cnuit, 
ty  of  Halifax.  The  rule  having  lieen  iiiiidt 
absolute,  setting  the  attachment  aside,  pliintitt 
appealed  on  tlie  ground,  among  otliers,  that  the 
Judge  in  Insolvency  had  no  jurisdiction  tu  make 
the  order,  that  the  affidavits  were  impmiKMh 
sworn,  being  retjuired  by  tiie  Act  to  be  swdin 
by  officers  appointed  by  the  Court,  uml  fliat 
defendant's  petition  to  set  aside  the  writ  wa> 
premature  in  being  presented  before  the  tutmn 
day  of  the  writ. 

Ill  III,  1st.  That  the  Judge  possessed  jiiiis 
iliction  under  section  "iO  of  the  Act  wIiIlIi  um 
powers  iiim  to  entertain  a  petition  to  set  usiilt 
the  writ  under  the  provisions  of  section  'id. 


■Jnd.     That  from  the  mere  fact  of  tlie  cciiii 
missioneis  acting,   there  was  a  presunii)ti(Jii  in 
favor  of  their  authority  which  must  stand,  until 
Affirmed  on  appeal  to  the  Supreme  Court  of    .lestroyed  by  evidence  sufficient  to  annihilate  it. 

Cas.  Digest,  434.        3rd.     That  it  was  left  by  the  Act  in  the  dis- 
cretion of  the    party   petitioning,   wlietliei  li-.- 
Leave  lo  appeal  to  the  i'rivy  Council  refused,    «<)uld  await   the  return  day  or  not,  tiie  word? 


Canada 


.inl  April,  ISS'J. 


Cas.  Digest,  .')44.  l,eing  "may  petition  the  Judge  at  any  tiiiif 
j  within  three  days  from  the  return  day  nf  the 
!  writ,  I'lii  not  a/tn-iranls."      Dom.  Act.<,  \M<. 


1809,  c.  10 -(Insolvent  Act.) 

T.  A.  and  J.  A.  made  application  for  a  dis-  c.  19,  s.  'JO. 

charge  in  insolvency  under  the  Dominion  Insol-  Qmin,  whether  the  writ  could  be  .-'et  aside 

vent  Act  of  1869.     The  principal  objection  taken  until  actually  returned. 

to  the  discharge  was  that  the  Act  applied  to  T'jie  Act  providing  that  the  petition  is  t(i  1* 

traders  only,    wiiereas  the  insolvents  admitted  heard  and  determined  in  a  summary  mamier,  "it 

that  at  the  time  of  its  iiassage  they  had  ceased  is  for  the   learned  Judge  to  decide   what  tli.it 

to  be  traders.     Before  judgment  the  Act  of  1871  summary   manner  of  hearing  shall  be,  and  ib 

was  passed,  amending  the  Act  of  18(59,  so  as  to  regards  the  nature  and  etfect  of  the  evidence  li) 

include  pivrties  who  having  been  traders  at  the  which  his  determination  is  to  l)e  governed,  jh" 

time  of  the  passage  of  the  latter  Act  had  since  viiled  it  be  legal  and  suHicient  evidence, 

ceased  to  trade.  The  learned  Judge  having  proceeded  hy  uidei 

Held,    that  the   insolvents   come   within  the  nisi, 

latter  Act  and  were  entitled  to  the  discharge,  Hi:lil,  that  the  course  was  perfectly  iiiiolija' 

l>ut  without  costs,  they  having  succeeded  on  a  .  tionable,  whether  viewed  in  regard  to  tlie  dis- 


Ifi 


i:]i:{ 


STATTTTES.  DOMTNTON 

IlltUI'l!    (if     tll( 


(iHoo,  Ch.  in.) 


l.MH 


CITlillll     HO    I'M'Icisnl,     (IP    to     till 

liimlc  (if  |)l'(ic('('(lilij,'    itself, 

/.(iiKi  V.  Fori  iiKiii,  '2  \.  S.  !>.,  ."(4(1. 

IHiMi,  c.  1«,  s.  :t4 

I'luv  iilcH  (hut  tlif  iiispcciois  "  it/iiil/iiiif}friiifrml 
mill  ilirrif  llir  nsKti/iiie  in  llic  pnforiiiinwv  of  /ii'm 
iliilil  iiiii/rr  lliix  Art." 

Nilil,  thill  llii.s  (hies  iKit  iciidcf  the  iiiHpoclors 
liiKIc  for  the  wi'oiigfiil  net  of  the  iissij^ncc,  in 
ihc  iiliN('iic('  (if  (■viih'iici'  showili),'  Ihal  they 
iiillmi  i/cil  thciutt  (^oiiiplaiiKMl  of. 

Ihirhec  V.  Cor  rl  «/.,  :!  U.  X-  ('.,  17. 

is«ft,  c  10,  ss.  3r>  and  41- 

S,  ."i.'i.  "  //'  (il  siirh  inn /I III/  till  fiisn/rnit  shall 
limb  nil  nffir  nf  ■■nmimsi/lnii,  ami  xnrli  ofl',  r  In 
niiiiriii-iil  III/  till  rrnlilnrs,  /In  1/  niai/  miih  xnrli 
■•nhr  nx  tin;/  may  iliim  rT/nilii  nt,  1  it  In  r  for 
•»«/"  inliin/  tlir  ili-K/iosal  of  thv  mliitr  ami  nil  or 
ninj  iiritriiiUmjx  li  inllmj  thiritn,  for  mirh  timr  at 
mij  III  Ji.riil  III/  sm'h  mritimj,  or  for  any  olln  r 

lUll'jltlSI'/' 

f>vr.  41  j)rovirlc.s  for  salo  hy  assii^iicc,  with 
■iiiitiiiii  of  (!voilit(ir.s. 

W'licic  Il\n  iiiKdIvciit  was  allowed  Iiy  the  assij,'- 
iiic,  acliiif,'  at  the  re(|ue.st  of  the  creditors,  to 
nsniiie  possession  of  the  estate  and  to  sell  it 
I"!'  llie  lieni'tit  (il  the  ereditor.t, 
//'III,  that  the  assij,'nee  still  retained  the  right 
I  iHdperly  in  the  ^stat(^ 

/farni/  v.  Ooltrr,  :i  N.  ,S.  I).,  |(il 

lSfi!»,  0.  1«,  s.  ;{«   Notice!  by  nsslgiieo  of 

li^  appointment  — 

S"  INSOrVEWY,  .W. 

ISflO,  C.  1«,  s.  .M  - 

"/'/«)»  //)(  xjiiration  of  tin  jxrloif  nf  om 
milh  from  tin  Jirst  hixirliou  of  the  adrrrlixi- 
ai'K'f  ijiriini  noliri  of  tin  n/ijinintnnnt  of  an 
iiimr,  nr as  soon  as  viai/  In  afti  r/ln  (r/iira.tinn 
''!  mi-h  iiirioil,  anil  afli nrarils  from  /inn  to  timi 
■I'  iiilirmis  of  not  ninri  than  thru  months,  tin 
"I/""  shall  iiri /lari  ami  bi /i  ronstantlij  arrrs- 
■■Ut  In  ihi  rriilitors,  nri'nuntx  and  s/a/rmtnts  of 
iii'itniiiiis  as  siirli  assiipnr,  and  of  Ihc  position  0/ 
'■'•  '1I11I1,  ami  nt  an;/  similar  intirrnis  shall  /in- 
i«rt  iliriiliinis  of  the  rstati'.  of  tin  insolrrnt." 
II' III,  that,  it  waH  not  the  nieanini'  of  sc(.^  ">."> 
w  no  dividend  could  he  dculared  until  uftei' 
111'  I'xpiration  of  three  months  from  the  ap- 
"mtnieiit,  of  an  iissigneu,  Imt  that  a  dividend 
"light  1)0  di'clared  at  the  end  of  one  month, 
f  I'ie  assignee  had  fund.s. 

In  ri  Tnrkir,  '1  N.  S.  1).,  .W). 


///('  amount  of  awijudijinonf  dphl,  or  of  the  i^ifprest 
thereon,  In/  the  initno  or  ilrlircri/  to  the  Stheriff  nf 
unij  writ  of  e.reiutiim,  or  hi/  leri/itir/  n])on  or 
seizimj  luidir  such  writ,  the  vflectn  or  estate  tflhr 
Imtolrent,  if  In  fore  the  /uii/nieni  orer  to  the  jilnin 
1(11'  0/1  f"'  iiiimri/K  inlnallj/  leried  nmler  xnih  writ, 
the  enlale  of  the  delitor  nhall  hare  heeii  (ntKianeil  to 
an  interim  asuii/iiee,  or  ahull  hare  been  /dm  id  in 
eom/inlsiiri/  lii/uidn/mn  under  thin  Art  :  hnt  thii 
/iroriiion  xhall  not  njfeel  tin;/  lien  or  pririlet/e 
aiqnired  hefoti  the  /nmfiini/  of  thin  Ait  or  ani; 
pririlei/e  for  routs  which  the  /dnintiff  /mssesses 
under  the  liw  of  the  I'rminre  in  vhieh  smh  writ 
shall  hare  issued  In/  r-'iison  of  snrh  issue,  delireri/ 
levj/  or  Seizure." 

This    section    is    intra    rires    the     Dominion 
I'Mrliameiit. 

Kinuei/,  Assii/nee,  v.  Dndmnn.-l  11.  k  V.,  Ml. 


isflft,  c.  ifl,  s.  m  - 

"  Xo  elaim  or  /inrt  of  a  r/aini  shall  In-  /irr- 
mittid  to  lie  ranked  n/mn  tnnri  than  nnei ,  irhithi  r 
the  elaim  so  to  rank  In  maili  In/  /hi  sann  or  to/ 
ilijl'i  rent  /iirsnns," 

Plaint ilFs  were  holdci's  of  a  ni>U\  made  liy 
II.  ('.  Si  Co.  and  indorsed  liy  .M,  li.  &  Co.  M. 
II.  it  ("o.  liecame  insolvent  and  ellected  a  com- 
position at  fifty  ccnlH  on  the  dollar,  indiuling 
their  indorsement  for  R.  V.  Ik  Co.  R.  C.  .t  Co. 
also  lieconiing  insohent,  the  plain! ifTs  sought  to 
IM'ove  against  their  estate  for  the  fidl  amount  of 
the  note. 

//'/'/,  that  tlu-y  coidil  oidy  prove  for  the  lial- 
ance  after  deducting  the  composition  riH'eived 
from  .\I.  R.  .><:  Co. 

Hunk  of  Hrltish  Xorlh  A  mi  rien  v.  Ilarrnj, 

.'f  N.  .S,  1).,  4111. 


1S«9,  0. 16,  8.  r.«- 

'A()//(»  or  pririlei/e  upon  either  the  personal 
'•"ml  estate  of  the  lusolmd  shall  hs  created. lor 
42 


ISOft,  c.  1«,  s.  01  - 

"  Clerks  and  other  /wrsons  in  the  em/dot/  of  the 
iusolreut  in  and  altont  his  hnsitu-ss  or  trade  shall 
he  eolloeated  in  the  dividend  sheet,  hi/  special  priri- 
kf/e  for  any  arrears  of  salary  or  wayes  due  and 
nn/niidto  them  a;  'he  time  of  the  e.iecution  of  a 
deed  of  nssii/nment  or  of  the  issue  of  a  writ  of 
atiarhmeut  under  this  Act.,  not  e.rceediny  four 
months  of  such  arrears;  hut  such  pririleyrd 
amount  mni/  he  inerea.ted  hy  order  of  the  credi- 
tors " 

Field,  thai  a  elerk  and  two  employees  who 
had  left,  or  Iteen  dianiis.sed  from  the  service  of  an 
insolvent,  sixteen,  twenty-one,  and  thirty-live 
months  respectively  Ix^fore  his  assignment,  could 
not.  be  collocated  on  the  dividend  shei^t  liy 
.special  privilege  for  arrears  of  salary  and  wages. 
In  re  Estate  of  Mitchell,  Insoluetd, 

2  R.  it  C.,  ;{7!). 


131 T) 


STATUTES,  DOMINION.     (ISfi!),  Cii.  l(i-10.) 


i:n(i 


180W  C    U\  8   W'2  —  iniiiiiiiiij  iif  thv  pntvinitim  o/  t/im  Ad    in  tlmi 

"  Anil  pi'isim  ir/io  purihasen  i/uotl»  o)i  credif  or  hilinh\  ahull  Iw  null  und  roiil." 
prorur'cs  mlrumcH  in  niiuwi/Jaiviriu!/  or  hrlirviuij  WIumt  llif,  phiiiililV,  to  a  pl.si  d  .lisclianj,. 
/liuinvirto  Iw  luuihl,'  lo  mvvf  //M  t'ui/ui/rmrnl.f,  ami  im.lcr  tlu'  Insdlvfiit  Act.of  l,S(i!t,  irpli.d  WvM  l|„ 
conrvuliwillivfuct  from  the.  prrMU  llivrvlni  hvconi-  ,lis.liaij,'c  l.ad  Ikt.i  .plilaiiir.l  liy  fraud, 
hui  hix  crvilUor.  irilh  the  inleut  lo  <lvjruu,l  surh  IIM,  thai  ll..'  ivi.li.ation  was  -,h„|,  ,.,..1  tli,,i 
lwrm,,or  u-hohyumi  /uhc /nelnurohluinK  u  l,rm  llic  .Imluf  who  tiicl  the  .aiis,.  h.u\  iiiis.liirri,,! 
ofvrc'lif  lorlhv  fmiimrnl  of  urn/ uilrumr  or  loan    \hv   jiiiy  in  inslni.lin-  ihcin  Ihal    ih.'  ,|ih>ii„n 

ofnumoii^or  of  Ihv  price  ormu/purfofthvprirr^i  fiau.l  was  (mly  for  Ih..  Co.iil   tl huuA 

of  ami  ;/<Ws,  vmmor  merchmulisi;  with  intent  to  ,  \hv.  .lisuliai'«iN  and  .■■mhl  not  he  hioiiuht  u|.  ,x 

ilefrauil  the  person  therehij  heroinim/  ln»  vreilitor.  \  ci'])!  I.y  appeal. 

and  irho  shall  mil  ufterirarth  hare  puiil  the  dehl 

or  dehlKsu  iwurred,  shall  he  held  to  he  iptdtji  of  a 

fraud,  and  shall  he   liahle   to   imprisonment  for 

surh  time  as  the  Court  mail  order,  not  e.ieeidim/ 


tUulkiu  V.  lieerh,  I  I!.  \  ('..•JCI, 

\m%  f.  i«,  s.  12a  - 

,\    Coiiimis.sioiu'r    for    takin;;   allldavils,  itc. 


suili  tune  as  (he  Loun  niai    oiiiei ,  ii'K  ':>>'• '"•'•!       ,       .     .  ,.  1   1      i-  n  11 

,      ,  ,.  ,1  ,.  ,.„.w  .    w  10    s  ni  I'lactici',  am     awlidly  nMoj,'ni/((l  I 

/uo  i/ears  uii  ess  the  deht  or  costs  he  sooner  uiul;'''""       '"I  •'      .  ."       , 


and  if  mch  debt  or  dehls  he  Incurred  hij  a  part 
uership,  then  event  vieudier  thereof  irho  shall 
hare  known  of  the  incurrini/,  and  of  the  inten- 
tion to  incur,  such  deht.  ordehts,  shall  he  similarlji 
liahle ;  provided  always,  that  in  the  suit  or  pro- 
ceedimj  taken  for  the  recorerij  of  such  deht  or 
debts,  the  defendant  he  charijed  H  ////  such  fraud, 
and  he  declared  to  he  iiuillii  of  it  hii  thejudiiment 
rendered  in  such  suit  or  proreedimj." 

Held,  unnL'(os.saiy  to  allege,  in  proceeding.^  tor 
penally  under  tlii.s  .section,  that  Ihe  defendant 
wax  insolvent  within  the  meaning  of  ihe  Act. 

Jfarrliiijlon  v.   ir(V/(  ,•, '2  K.  >V  ( ". ,  :U-'. 

l-'or  a  count  drawn  under  tiiin  Mcelion,  and 
hold  had  on  demurrer. 

Sec  BILLS  OF  EX€I1AN«E  AND  PROMISSOKY 

NOTES,  IX.,  «. 

18fi«,  c.  1«,  ss.  91  aiHl  101- 

//-/(/,  that  the  insolvent  if  he  saw  lit  might 
waive  sec.  07  and  procc(Ml  undi^r  si'i^  Mil. 

In  ri   Tiirhr,'2  N.  S.  I).,  :{IM). 

A.  1815,  ('.  1«,  s.  5«. 
18«»,  c.  1«,  s.  «8(liisolvciit  Act)- 

Ililil,  that  the  s\ipi>lenientary  list  of  creditors 
anlhoriy.ed  hy  .section  !tS  nuist  he  as  full  and  ex- 
plicit in  the  information  furniMhed  hy  it  as  is  re- 
c|nirod  in  the  original  statement  or  schedule.  It 
ninst  allbrd  the  information  renuircd  hy  form  15. 
KnanI  v.  Spouwili  <>  al.,  1  11.  \'  <i.,  l!•■■^• 


I  the.  Court  as  an  ollicer  legally  exercising  a  fun 
tioli  so  important,  is  within  the  meaning  of  lln 
words  of   section    I'J.'l,    "A    ('oinmissionti   up 
pointed  hy  the  Court.'" 

Lami  V.  Fori  mini,  '2  N.  .'^.  1)..  .'illi 


18«»,  c.  1«,  s.  108- 

"  l-Jrerji  consent  to  a  dischariie  or  compusiUon, 
and  everii  diseharije  or  conjirmation,  of  any  dis- 
chartje  or  composition,  which  has  heen  ohtained 
hi/  fraud  or  fraudulent  preference,  or  hy  means 
of  the  consent  of  any  creditor  procured  hy  the 
pai/menf  or  promise  of  payment  to  such  creditor, 
of  anil  miluahle  consideration  for  such  consent, 
or  hi]  any  fraudulent  confrioance  or  practice 
whatever  lendiny  to   defeat  the  true  intent  and 


1800,  ('.  1», 8. 20    iX. I{. S. (' UW, s. '2!» 

"  W'ho'iOd-i  r  foriji s,  or  alli  r<,  or  o/A' />,  /i"u-. 

ilinpnii.x  of,   iir   pnl-tojf,    hnoirlmj  I  hi    -oiiik   Ui  I« 

frtriji  d,  nr  nlliriil,  anij  niid.i  rliihiinj, inirranl.  o/v/i , . 

onthorilji,  or  r<<iiii«l,  for  thi    pnyim  nl  if  nKmnj. 

or  for  Ihi    ihlinry  or   Iraiisfr  of  nni/  ijiunl"  m- 

chiit/ils,  or  if  innj  note,  hill,  or  olhir  sn-nriiii/i'i 

llii  piiynniil  if  nioinii,  or  for  pronirinii  or  ;ii'-iii;i 

erulil,    or  iinij  iinlor"!  im  nl  on  or  ii'^iiiiininil  I'l 

anil  vK.-.'i  iinilirlid-inij,  irnrrani,  oril<  r,  iiiilhiinlii. 

or  rnpiixl,  or  any    arnii  iilali/i    rinipl,  iiniiiilt- 

unci    or  rieilpl,  for  mom  y  or  for  iiond-i,  o<-  jm 

any  noli ,  tiill  or  ollur  simrlty  for  Ihi    piiiiiiinii 

of  mom y,  or  any  inilorxi  mi  nl  on   or  f(.-.<(;//iHioi' 

of  any  such  ai-ronnlnhli    ricii/il,iir  nny  innmiii. 

Iiook    or    I  hi  III/   irrilirn    or    prinlnl    or    o/Zuc/n.. 

miidi    ciipnlili    of  In  imj  ridil,  n'ilh   iiili  nl,  '"  "".'/ 

of  tin    rnsis  ((forixaiil,   lo  difrand,   is  ijii'iHil  ".' 

filony,  ami  shall  In  liidili  to  hi  iinprlionnl  in  ili' 

I'l  niliuliary  for  life  or  for  any  U  rm  mil  hs.i  Ihiii, 

tiro  yiiir.i,orlo  hi    inipri<omil  in  any  oUnr  i,i»f.l 

or  plan    of  rohfm  mint  for   anil   li  rnl  h ss  llm 

tiro  yiart,  irilh   or  irilhoiil  hard  lidionr,  innl  m'li 

or  irilhoiil  sniilnry  ronfnemml." 

Defendant  was  found  guilty  on  the  Hi  si  uii.l 
third  counts  of  an  indictment,  the  last  .1  mill  "I 
which  charged  him  with  uttering  a  forgcil  ""i 
dt^r  for  the  payment  of  money."  The  cviilcin' 
was,  that  the  defendant  forged  the  uaiiicnf  U 
McK.  on  the  hack  of  a  cheijuc  drawn  payaMH' 
W.  McF.  or  Older,  and  ohtained  the  jinninl-. 
which  he  ajijiroiiriated  to  his  own  use. 

//(/</,   that   the  cIkhiuc,   when    iiidoisc.l,  1» 
came  an  "  order  for  the  ])ayment  of  niuiiey    '' 
any  one   who  should    present   il,   ami  tlwil  'I" 
conviotion  011  the  last  count   was  siistiiiin''!  hy 
the  evidence. 


1317 


STATUTIiS,  DOMINION.     (ISO!),  Cii.  20.) 


i:{|.s 


.McDuiiiilil,  ('.  ,),,  ;ni(l  Weiithuilie,  .J.,  iUsm  nt    \      11,1,1,  ilmt  the  intention  ni.iy  W  iiifiriid  Inmi 


Till'  lii'Hl  c:i)iint  cif  till'  inclic'tnicnt  cli.ifijt'il 
ihr  (|i'fclii|;inl  Willi  iiltcl'ini,'  a  t'()rj;c(l  cln'tnic. 

//'/'/,  tliiit  tilt!  (loiiiit  wan  not  Hlistiiilifil  liy 
|irciiif  of  t'or;;cry  of  the  iiKlorMcnii'iil,  ami  that 
!lii' iniivifticiii  on  lliirt  roiiMl  must  In:  set  aNiili;. 

A  i|iicstion  liiiviiii;  liciii  laiscd  at  tin;  li'ial,  liy 
IciiHiirii,  as  to  tlif  |(owci'  of  tlio  Coiiit  to  try 
.11-  iiiiivict  the  licfi'iiilaiit  for  anolliuf  oH'oiici! 
lliali  llial  for  wliiiOi  hi'  was  cxtraditiMl,  and 
hiiviiii,'  licuii  ilci'idtid  liy  till'  ])icsidin^'  .liid;,'u 
!.;.iiiist  llio  ilcfciidani, 

ll'I'l.  that  it  wan  too  iato  to  laisf  tliu  ihium- 
imii,  liy  ease  r(;.s(trvod,  for  tin:  full  ("oiiit. 

','"""   V.  Uiiiiiiiinjliaiii,  li  K.  it  (i.,  ;{l  ; 

(ic.  h.  r.,  i;{<i. 

Oil  iiji/Ha/  /i)  /III  Sii/in  nil  Court  iij' C'luiinln, 

//ilil.  III  r  jAniiniur,  lltniiy,  and  'rasrlu'ivan, 
I.I.,  (Ititrliif,  ('.  .1.,  and  Stroiij,',  .!.,  i/i.ssi  nlinii), 
lliiU  rvidtiiii.;  of  tint  iilt"liiij,'  of  a  foi'i,'fd  iiidoi.su- 
mciit  of  a  ni'^otialilii  l'Iiui|UI'  or  oidm'  is  iiisiilji- 
n?il  to  sustain  a  uonvictioii  on  a  count  of  an 
imlictiiH'iil  L'iiai'i^ing  tliu  nttci-iiii;  of  a  f(irL,'eil 
ilii'i|iR'  or  (inU'r. 

(Ill  llii;  sfcoiid  (jucslion  ri'survcd,  wliiili  was 
■wliillicr  tliu  uvidi'ncu  on  the  part  of  tlu;  Cidwn 
1- Mitlicirnt  to  sustain  (I  conviutiiin  on  the  liist 
ml  lliiid  loiints  of  thc!  indietiiient,  or  on  oilhei 
■llliiiseeoiints,"  the  judgment  of  the  Couit  lielow 
■lioiiM  lie  reversed,  and  the  prisoner  ordeied  to 
!'!  iliscliarged. 

/''/■  Kitchie,  ('.  .J. — The  ((iiestion  raist'd  hy 
'inMliniiurrer  was  not  pioperly  liefore  the  Court 
"II ii|i])eal,  the  Court  helow  having  lieeii  uiiaiii- 
iimus  with  ruspuct  to  it. 

I'll-  Strong,  .1.  — Thc  Court  lielow  rightly 
iidd,  (111  tiic  authority  of  A',  v.  Faili  rmini.  Den. 
'■  ('.  ."iT'i,  that  thc  ijucHtion  raised  liy  thc 
Miiui'ier  was  not  properly  lieforc  thc  Court, 
'lif  .ludgc  at  the  trial  having  given  jiidg?ncnt 
n  till'  demurrer,  overruling  it  at  the  trial. 
^I'lreiiver,  tlicre  was  nothing  in  the  law  inider 
■fliifli  thc  prisoner  was  extraditcil  to  prevent 

iio  ('unit  from  trying  him  for  any  oU'encc  for 
I'll  lie  was,  aecording  to  thc  law  of  thc  Du- 
'mm\,  justiciahlc  before  it. 

Aplieal  allowed. 
Villi /(  V.  Cuiuuiiiiliam,  llilli  Mntrh,  /SSo, 
Cas.  Digest,  l(»7. 


the 


<,hlnii   V.    Ai />it«^  ,  •_'  N    .S.    I).,    Mil. 


W9,c.'2«,R.lI-Cf.  U.S.  C.,c.l«a,s.l3- 

"  H'hiK  ri  )■  niilairj)(//i/  ami,  iiKt/irioiis/i/,  liy  fUii/ 
"fii"  irliaf.'.mrri;  iroiniil'<,  it-i:,  irllh  iii/i  nl  .  .  . 
'' "I'lJW,  i/isjii/urc  or  disahli    aiii)  jiirwn,  or  lo 

>  <oine  olhc.r  ijrktroil-'i  hoilili/  harm,  ....  is 
!''>"y  0/ felony,  and  shall  lit  liahk,"  .t-c. 


inm,  c.  w,  H. :{»  ir.  k.  s.  i.,  v.  tm,  s.  ;<i 

*' Whusoi  nr  iis.iuii/Im  any  .  .  .  juaci  ojlin  r 
III  I  hi  iliii   I  xiciili'dii  (>/  his  ilii/y  iir  Us- 

^iiiills  any  jiirsoii  irilh  iiilml  hinsisl  ur  /in  n  ii/ 
till  liiirfiil  n/i/in  hi  iisiiiii  iir  ih  /aim  r  nf  hi  nisi  If  ur 
of  iiiiy  olhi  r  jii  I'soii  for  iiiiy  ofi  iin  is  ijiiilty  of  a 
niisilr.nii  Hiiiii;  ami  ^haU  In  liiilili ,"  itv. 

Ifilil,  .McDonaM,  C.  .!.,  and  McD.inald,  J., 
ilissi  ii/im/,  tiiat  a  "  eonstalile,"  though  serving 
civil  process,  came  within  the  meaning  of  thc 
words  "  peace  oIliciM," 

V"""  V.  Laii/ .,  7  U.  iV  <;.,  I  ; 
7  C.  L.  T.,  TiO. 

tnm,  c.  20,  H.  .IS  IT.  It.  s.  €.,  f.  m,  h.  4 - 

liigamy  made  a  felony  and  luiMishmenl  pro- 
vided, with  the  following  proviso,  among  others  : 
"  I'niridi'il  I  hilt  nothliiy  in  lliiii  mtHuu  shall 
I'llrml  ..,./<)  any  /arson  niiirryinif  a 
svcuml  linic  whose  husbaml  or  wife  has  been  con- 
tinually absent  from  such  jwrsoHfov  the  s/xice  of 
seven  years  then  lust  /last,  and  was  not  known  by 
such  /lersoii  to  be  liriny  within  that  time,"  etc. 

(jhiesfion  snlimitted  for  opinion  of  the  Court  ; 
Whether  the  piesiding  .Judge  rightly  instructed 
thc  jury  that  the  evidence  adduced  on  thc  trial 
of  the  prisoner,  who  was  indicted  for  liiganiy 
in  marrying  one  (ieorge  Carr,  in  the  lifetime  of 
hci'  hnsliand,  William  Deliay,  did  not  raise  any 
presumption  of  thc  death  of  Deliay,  and  that  the 
]iii.soner  w;is  not  aware  when  slu:  married  Carr 
that  Deliay  was  living. 

t)n  the  i)art  of  tlie  |)roseoution  Deliay  was 
liroveil  to  have  lieen  s(!cn  in  the  United  States 
after  thc  second  marriage,  ahout  three  weeks 
liefore  the  trial  ;  and  on  the  part  of  the  defence 
that  eight  years  liefore  trial  the  prisoner  and 
other  husliand  separated,  he  having  turned  her 
out  of  doors,  and  never  lived  with  her  since. 

Held,  that  the  al).sence  contemplated  hy  the 
Statnte  is  not  necessarily  an  ahsenee  from  the 
country.  It  is  sullieient  for  the  prisoner  to 
prove  the  ahsenee  of  Dehay  from  her,  such  an 
alisencc  as  would  lead  to  the  inference  that  she 
did  not  know  of  his  residence,  and  whether  he 
was  alive  or  dead. 

Held,  that  an  ahsenee  of  this  kind  wa;s  shown 
in  this  case.  At  any  rate  such  evidence  was  ad- 
duced as  shoui<l  have  lieen  left  to  the  jury,  and 
from  which  they  certaiidy  might  have  found 
such  an  absence. 

Held,  that  the  burden  of  proving  that  prisoner 
knew  of  Debay's  being  alive  during  the  seven 
years  was  on  the  prosecution. 


l.'il!) 


STATUTKS,  DOMINION.    (lH(i!M.s7l.) 


vcniirl.  Tilt'  ilcchiraljiiii  iiiiiliiiiiiil  mily  iiii( 
I'liiiiit  fur  an  iiKMiiill  iiml  falsi:  iiii|ii  imiiiiim  ni, 
while  two  iliNliiiii  auMRiilt.H  wcic  |iicivi(l  .ii 
the  tliiil,  till-  .si'i'iiliil  lii'ilij,'  the  niic  i  iiiincilid 
witli  tlu:  iiii|ii'i>4i>iiiiR:nl  lUii'laicil  <in. 

Ililil,    llial    this    \sa«   a    fatal    (ilijfrliiiii,    I  In 


llild,  liy  all  till'  .Imlj^iH,  llial  the  i-.invii  linn 
liitlHt  III:  <|iia.slR'il. 

(jiu.in  V.  Aiiiiii  Jtiliiii/,  :i  N.  S,  l».,  ."iK). 

IMW,  c.  21,  NN.  3  iind  110.    IT.  K.  M.  Cm 

c.  1G4,  H.  4.  amlc.  174,  h.  2U1   - 

S.  ;».  "  iniii^iii  ri  r  liiiiin  a  l)ui/<  I,  qfuiiy  rhntli  I,  [  plaint  ill' not  lifinj{  at  lilnity  to  waive  the  ;i,-.>,uili 
111111111/  or  idhuildi  s,  niri/i/,  j'rainlii/i  iilly  /akis  or  ^  liint  proveil,  ami  n'wt;  e\  iilenee  of  anotlii  r.  I'l, 
roiinr/s  llii  saiin  Ui  his  on-u  iim  or  Io  /In  ifi  of  'li'i'  Mom.  Stat.,  ;»•_'  and  .'U  Vie.,  e,  •.'!!,  ^.  l;;:', 
(1111/  /II  rwii  nlhi  r  Ihitn  (hf  oirmr  tlu  riof,  ulihoinjli 
h<  ilo  tiot  firiiik  liiiJk  or  olhirn'ixi  ililiriniin  tlu 
liailmiiil,  l-i  iinillij  of  larrtny,  luiil  may  hi  ran- 
rir/iil  Ihiriof  n/iim  mi  liiih'rhin  ii/  /or  /ari'iiiy: 
liii/  this  sif/ii-ii  shall  111)1  ix'iiiil  Io  any  uji iin 
/mnlxhnlili.  on  stimniary  roiirii-lion." 

The  piisdiier  liavinj^  piekeil  up  eertain  ^'oihIh 
that  hail  lloaticl  away  from  the  wreek  of  a 
Htuiunur,  approi)iialctl  them  to  IiIh  own  use. 
He  waH  indieted  for  laieeny,  the  propeity  in  the 
gooiln  heing  laid  in  the  captain  of  the  steamer  ; 
1ml  at  the  trial  the  .Inilge  instnieteil  the  jmy 
that  they  eoiild  not  eonviet  him  of  larceny. 
'I"he  ])iosecutioii  then  claimed  a  conviction  for  a 
mi.sdemeanor,  and  the  jury  found  accordin>,'ly. 
On  a  case  heini^  le.sefved  fof  the  full  Court, 

Htlils  Wilkins,  J.,  ill.i.ti  ntiiiij,  that,  uiulei'secs. 

3  aiul  11(1  of  the  Larnny  Aii,\\'l  and  3.'}  Vic, 

chap.  '21,  the  conviction  must  he  sustaiued,  and 

that   although    the   oirence    was   prolialily  com- 

milted  at  sea,  the  Court  had  ftdl  juiisdiclion  in 

lilt!  pi'cniiscs. 

V'-e)/.  V.  Mar/ill,  li  N.  .S.  I).,  P_»4. 

lHUi>,  V.  21,  s.  m    (KvNtltiition  of  stolen 

property)     Cf.  R.  S.  C,  e.  174,  s.  250  - 

Dofcudant  was  convicted  of  having  received 
certain  jilatcs  covered  with  amalgam,  stolen 
from  a  crushing  mill,  knowing  them  to  have 
lieen  stolen.  An  application  was  made  hy  the 
Napier  (lold  Mining  Company  for  restitution  to 
them  of  a  bar  of  gold  extracted  hy  <lefeiulanl 
from  the  amalgam.  It  hoing  uncertain  whelliur 
the  Company,  or  one  SlialFer,  were  the  parties 
properly  entitled  to  the  gold,  it  was  r)rdered 
that  the  gold  1)u  handed  over  to  tho  Company 
ami  .Shalfer  on  their  joint  receipt,  or  to  the  Com- 
pany with  the  sanction  of  Shaffer. 

Qiiveu  V.  n/atk,  li  N.  S.  ]).,  li.'U. 

1869,  c.  2»,  8. 1»2  -Cr.  K.  8.  C,  C.  185, 8. 3  - 

"  In  any  such  aclioii  /lit  ili'JhiilaiU  iimy  /iliail 
/he  ijiuiral  issue,  and  ijirt  /his  Ar/  and  /he  s/ie- 
cial  ma//er  lu  emdcncv  a/  any  /rial  to  he  had 
thercxqiou. " 

The  plaintiff  having  heen  arrested  on  view, 
and  imprisoned  hy  defendant,  a  ]>olice  conslahle, 
and  his  superior  ofiicer,  brought  an  action  of 
trespass  against  the  former  and  recovered   a 


tlu^  defi'udant  being  a  suliordiliale  pnliic  ullin  i, 
may  give  evidence  to  show  a  justilic'alion  iimld 
the  conmuiml  of  a  superior  odici'r  witiiuui  |ili,i,| 
ing  justitlcation  specially. 

I'< l'l"J  ^''  ''''"""i  I  l^.  iV.('.,.'fl 


I8(m,  e.  :iU,  N.  15    cr.  K.  S.  I'm  I.  Ill, 

8.  68 

in  order  to  estreat  a  recogni/ance  taktii  iiinlii 
cap.  ;I0  of  the  Dominion  Act  of  l,S(i!l,  all  tliat  i.- 
rci|uii'ed  is  a  certilieate  from  the  proper  olliar 
(under  sec.  4."i  of  the  Act)  that  it  is  forfcitnl. 
Upon  that  rule  nini  is  taken  ruil  on  atlidav  its  ci 
the  facts,  and  if  no  cause  is  shown,  judgiuwii 
follows,  but  without  costs. 

I'lactice  in  the  (iuein  v.   T/iuiiiimin,  2  Tlimii,, 

!),  allirmed. 

()aveti  v.  Jlirkintin,  .'I  U.  i\;  ('.,  v!.J.'i, 

isou,  c.  ai,  N.  Id    cr.  k.  n.  c,  c.  iiH,s, 

48  -  (Summary  Convictions  Act)  (Jiistiw 
may  adjourn  hearing,  "  Im/  no  such  inljiiiiiu- 
nil  n/  shall  In  for  mon  /haii.  one  inik")~ 
Is  not  intended  to  prevent  more  than  cine  iul 
journnu'iil,  or,  if  so,  thai  a  witness,  who  ImIiil^ 
an  aclioii  for  a.s.saidl  against  the  conslaliK' wlin 
arrested  him  under  a  warrant,  he  having  faik^ 
to  obey  a  sinnmons  to  appear  as  witness  iit  i 
trial  for  the  violatif)ii  of  the  Caiiiida Teuipcniiia 
Act,  cannot  in  such  action  raise  the  olijiiiinn 
that  the  trial,  to  testify  at  which  he  w.i.s  ane.-t 
ed,  was  a.djourned  more  than  once. 

Mesnem/tr  v.  I'arhr  el  aL,  (5  U.  &  (i.,  -•>'; 

(i  C.  L.  T.,  411 

1811,  C.5, 8. 11    (The  Banking  Act,  isil 

Cf.  R.  S.  C,  c.  120,  s.  39- 

"77tc  IJaiik  shall  always  hold,  us  n^arhj  ■!■ 
may  he  /tract ieahit ,  oni-half  of  i/s  oish  n-^u-r" 
in  Dominion,  Notes,  and  the  /iro/ior/iiin  oj  •««'* 
resnrres  held  in  Dominion  yotcs  shall  ntni-l' 
less  than  one  third  then  of." 

Tho  Local  Legislature  has  authority  to  kuA 
a  law  imposing  a  tax  on  the  Dominion  notes  hiH 
by  a  bank  as  portion  of  its  cash  reserve,  umlff 
the  Dominion  Act  relating  to  "IJanksamt  Hunk 
ing"  (.'J4  Vie.,  c.  5,  s.  14),  and  under  Hit '') 
laws  of  the  Town  of  Windsor  audi  property  tfi' 


l.'Sl^i 


STATIITKS,  DOMINION.     J.S7I    1874.) 


IM22 


ImI'I  I-  I"    |.in,„.,iv  n„lu.U',l  l.y  il.u  a„H,.«m)rs  ii.        |Nj;{,  «..  |j>,  s.  'iO,   rcpnilN  Al1»   of  Noia 

iliiii  v.iluiiliiiii. 


/'/)(■  'I'oini  III'  n'iiii/siir  V.   /'/iri'nniiiiirriiit 

Jliin/i  of  W'iihlAor,  ;t  1{.  \  (I,,  I'jo, 

ISIl,   f.   .1,    N.    I»- 

"  .Vk  (is.^iiiiiiiii  III  ((/■  Iriiiixj'i  r  ■ifial/  In  ni/iil.  iiiifi  .is 

il  III  iiKlili  mill  i-iii'ish  rill  mill  inn /i/ul  hy  III,  I 
l,niii/  III  ii/iiiiii  i/n  iriiiiMji  r  />  ininli ,  //,  n  l„j(,{-  ,„■ ' 
'i(iii/,w  III  III   hill  liji  Ifii  i/iriiiiirs/iii-  I  lull  /mr/iosi^ 


SiMiliii,    isdt,    ciii,    ,S|   (lliililiiv  City   Cli.iiur). 

Xl'CN.     l.'lK,     J."»l    \     |,V_'   Wllilll   Mil!   ill/Ill. 

Till   (Jiiil  of  I/(ill/a.i:  V.  Ciiiiniiiiiliiiiii  il  iil,, 

7  W.  fii-.,  II. 

1S73,  c.  I'itt,  sees.  Tii  imd  .i»    IT.  K.  S.  ( ., 

I'.  74,  HM.  52  \-  59 

(Ac'liiiii  iH'fiirc  .Mii^'iKiriili;  tdiscaiiiiiii'.i  uii;,'iN) 

V'  I'KKTIOKAIU, -il). 


'((('*/  fill   /Il  rtoit  or  /Il  iMiiiiM  iirdiiii)  llii  miihi 
'linll.il'niiii!i;i/li!/l/iil„ni/,;/i,;riou.^l!/ii;ir/iitri,,\       ISW,  €,    Vi%    N.    Sii        (MllkillK    OfdCr  Of 


nil  il,  Ills  III-  linlii'lllii.s  iliii  III/  liiiii^  III  I- ur  I  hi  III  to 
'II'  liiiiik,  irliirh  111(1.1/  I  .iriii/  ill  uiiiiiiiiil  llii  ri  niiiiii- 
iiiij   Jiiik\    if  mil/,    III  liiin/iiii/   lu   Miir/i   /Il  rsijii   i,r 

//K'.iOH.I.  " 

•V"  BANKS,  i(»,  II,  1-2  fc  \:i. 

ISIl,  f.  3,  ».  58    If.  R.  8.  t'.,  c.  120,  Ns- 

70  &  72  - 

(Liiiltility  of  .sliiui'lioldi'in  in  cusf  of  iimulli- 
I'icMcy  of  iisHiits  to  iiicci  lialiilitif.s  ;  culls  on 
sliiiniiolilur.'i,) 

.All  iiulion  wits  la'oiigiit  hy  the  pliiintifl"  luink 
iis  iis.sijrni'u,  uiiilor  Ihi!  lii.solveiit,  Ata  of  INT."),  of 
tlio  liiiiik  of  I.iverpool,  :ij,',iiii.st  tlic  ilffiMidant, 
f'lr  a  rail  of  l(K»  piM'  ci'nt.  on  lii.-s  stork  in  tlif  .said 
lliiiik  of  Mvcrpool.  'riic'  oidy  uviduncc  of  tliu 
iiiiiklMf,'  of  thf  call  wa.s  a  notico  pul.li.siiud  in  lliu 
HtKilii  of  ihu  I7t-li  of  .January,  and  foll(.\iing 
ixsilL's,  a«  well  11.S  in  tliu  loi'al  |)api;i'.s  dated  tlu; 
H'lli  of  J.innary,  liy  uliicli  a  nunilii'i-  of  eall.s 
Muc  niadi',  payable  at  intervals. 

Il'lil,  that  the  ealls  eonld  not  all  lie  legally 
iiiuilf  at  one  time,  and  none  eould  legally  l)e 
miiilc  1)111  within  ten  days  after  the  expiration 
'I'  .SIX  months  from  the  siinpension  of  payment 
li,Vllif  l)ank.  And  further,  that  in  eompiiting 
till'  statutory  intervals  between  ealls,  the  time 
"iiist  lie  reekoned  uxeliisively  of  the  day  on 
wliifli  the  previous  eall  was  jiayalile. 

/'■(■  Weathorhe,  J.  -That  the  ins<ilveney  of 
llif  Liverpo(d  IJank  and  the  insiillieieiiey  of 
main  shoidd  lia>e  been  alleged,  and  further, 
tliMl  a  eertilieate  of  the  County  Coiirl  Judge, 
il'lir  the  alleged  making  and  notiee  of  the  ealls 
•tlHiiving  of  the  plaiiititF  bank  .so  acting  through 
i"t'ii'  eashier,  wiw  not  a  siitlieient  uoinpliaiice 
«itli.see.  (I,  e.  ;il,  of  ;{<)  Vic. 

/'"•  .McDonahl,  ,1.   -That  the  declaiation  was 
^iiliitienl,  but  the  ealls  were  irregular  for  the 
ii'iWon.s  above  stated. 
Tli'.  Hunk  of  Norn  Scotia,  Amii/nu,  v.  Forhix, 

4  U.  it  (i-.-JiJo.  ! 


1873,  c.  46- 


Sec  1868,  C.  40. 


Jiid(,'L',  &i!.,  final.) 

This  see'ion  held   not  to  lake  away  the   juris- 
diction of  .Supreme  Court  by  \\ay  of  certiorari. 
Jliwnt  v.  Jliirt,  ti  K.  it  (i.,  •»'.•; 
(iC.  L  T.,  140. 

1S74,  c.  10,  N.  »    tf.  K.  8.  I'm  c.  »,  ».  10  - 

"  ..Vo/Zri  iif  till  /in  Ml  iitalinii  iif  (I /iitilioii  iniili  r 
this  Alt, mill  ()/'  Ihi  SI  iiirili/,  iirrniii/iniili  il  irilh  (t 
ri)/ii/ n/'lhi  /iitilioii,  shall,  irilhiii  tin  iliii/s  ii/ti  r 
Ihi  ilay  oil  ii'hiih  Ihi  /iititiini  shall  hnn  In  i  n  /m  ■ 
siiitiil,  or  irithiii  till  /in srriliiil  liiiii',  or  irilhin 
siii-h  lovijir  timt  as  thi  Court,  or  aiii/ Jiiili/i  thi  ix- 
(if,  llKliJ,  mull  r  sjii  rial  rirniiiislmiris  or  illjllriilli/ 
ill.  ijlirtiini  .sirrio,  alhiir.  In  ^irnil  lnj  Ihi  /idi- 
tiiiiiiruii  thi  ris/ioiidnit  or  n  s/iomli  nls.  In  rasi. 
SI  rrin  niiiiiiil  In  iffirlul  on  tin  n  s/ioiiili  lit  or  n  ■■■• 
/loiiili  Ills,  I  iihi  r  /iirsoiiitlli/  or  lit  his  or  thi  ir  ilmni- 
rill,  irithiii  thi  linn  ijrmitnl  lii/  thi  Ciiiirl  or 
.liiiliji,  thm  it  Ilia;/ III  ijl'irtnl  n/mi  siirh  nthi  r 
/Il  rsoii,  or  ill  siirh  otlii  r  man  in  r  as  thi  Cinirt  or  a 
Jinli/r,  on  thi  a/ijiliration  of  th'  /n  titioin  r,  ni'i;/ 
a/)/ioiiit." 

S'l.  ELECTION  LAW,  II,  bs,  •-'.•J^  '-'1. 

1874,  c.  16    TranNrcr  of  Windsor  Braiuii 

to  Western  Counties   Railway  Company  - 

Sec  RAILWAYS,  •-•!  iV  •-'•-'. 

1874,  c.  45    IT.  R.  8.  t'.,  c.  »J>- 

rii'.intiir,  an  inspi!ctor  of  pickled  lish  under 
e.  4.">  of  till'  Dominion  Acts  of  l,S74,  brought  an 
action  to  recover  from  the  de])iity  inspector  the 
cost  of  le-inspecting  lish  improperly  braniled  by 
the  deputy,  and  the  ditTerence  between  the 
value  of  the  lish  as  determined  by  the  deputy 
iiisi)eetor,  and  the  value  as  ascertained  by  the 
re-inspeetion,  which  amounts  the  inspector  had 
paid  to  the  purchaser  of  the  fish, 

Hilil,  allirming  the  deeisir)n  of  the  County 
Court,  that  the  inspector's  rjnly  remedy  as  to 
the  difference  in  valuation  was  on  the  bond  j)ro- 
vided  by  the  .Statute  to  be  given  by  the  deputy 
inspector,  and  the  cost  of  rc-inspcction,  which 
the  County  Court  Judge  had  held  to  bo  recov- 


]'.\'2'.\ 


STATUTKS,  DOMINION.     (IM?:..  Cii.  1(1.) 


I. •Ill 


oralili',  Initio  mill. ■!•  .•<".'ii,  iliil  noi  lniiiL.'  ilic  (■.!«■        \Vilkiii.-<,  . I. ,'/'"' »'»»;/. 

williiiMlii'  jiiii-iiliiijciii  111'  III.' ('mill,  //'''/.   ili.ii   '*<■>■■   l'»l  "I  III''  lii>"U.iii   .\.i  u| 

Hi/illi    V.   //(Ml',,,  ;|  I{.  iV  ('.,  ."iil.'>.      |S(i!»   III4.I.'    il    illl|i.'l  llivt 111.'  ('.Mill   Ik  ii'Iiih 

llic  .liMi'lmi';(i'. 


Ill  rt   A.   Miiiiii'!/,  hi-n'rnil,  '_'  I!.    >\.  ('.,,'i(;;i. 

|H7.'i,  c.  10,  N.  10 

(I'lir.'i'l    III'    riiiillriiialiiili    lit'   .Jis.'liiU'u.' ;    \sli,ii 
.liiiiiis  iin'i'.'lc.l.) 

.Iiiil;,'iii('iil  fur  iiliiiiitilT  Mii«l:iiii('ii  wIi.t.'  iI.  |i  n 
iImiiI  pli'iiili'il  11  ilisi'liiiii,'.'  ill  iiis(.i\.'iii',v,  iiml  ii 
ii|i|i.'ari'il  llml  llic  ii"ti'  hii.'.I  mi,  of  uliirli  lln' 
Sii|ii'('iii.' Cipiiil,  .'illi.'i  luiiU'i' ill.'  Iii.'<iilvi'iit  .\.'t  iH'csciit  |ilaiiilill'  wiim  the  iii.lm'.><.'i',  liml  linii 
of  Caiiiiila  wliirli  liiul  uivcii  (.ilaiii  pnw.  rs  Id  iiu'lu.U'il  in  tlic  niiimiiil  H.'lii'ilnii'.l  iis  tlii'  il.niii 
the  .lii.l;,'.'  ill  I'.f.'i't'iii'i'  to  iii.inlvi'iilH,  iir  tiii.iiH'  of  llic  miLjiiial  piiyc.',  lull  iiii  |iarlii'iilai.^  nf  il 
llic  Cmiiity  ('mill  A.'t.s,  iiiamiiiicli  iik  liin  mil. t  I  were  ijivcii,  an  |iriiviili'.l  l.y  MtTlimi  til  nf  tin 
wan   II. il  iiia.lc   Ity    rcaMiiii    of    any    jiiiiHili.'limi    Inwolvi'iit   Act   nf    1M7">.     'I'ln'    pliiinlill  "^   ii.uiii' 

innfcrrc.!   liy  IIi.i.hi:   Acts,  lint    Ky   ri'asmi  .il   the  ,  a|t|icai'cil  in   tlic  mcIuiIiiIc,  lull   im  a mil    Mii> 

liii|)ci'ial    liaiikiii])l('y   Act   wliicli   iliil   nnt    ;^ivc  ^  set   iipiMisitc. 
siit'h  ii|i)ii.'al. 


lsr»    «'.  10   (Insolvent  \<t,  1M7.I) 

.\  Cmillly  ('mill  .lllil},'.'  WiiH  a|i|p|ici|  In  In  .Ict 
in  aiil  nf,  ami  ii.><  aiixiliaiy  In  llic  limnlmi  Hank- 
riiptcy  Cm.  (,  in  riliilimi  in  |iin|ici'ly  nf  an 
l''.ii;.:li.-<li  liaiiki'ii|il  Hiliiatcil  in  liis  ilisliict,  iml 
mail.'  ill!  ni.l.'i  ai'i'm'iliii){ly. 

//i///,  McDnlialil,  ('.  .1.,  ili^Miii/hi,!,  tlial  nn 
appeal     wmilil     lie    frmii    .miicIi     milcr,     In    llic 


hi  Will  I'    V.  Xiil/i/,  I  It.  .\:  ( :.,'.' III. 


A'.   Cirn/I,  ..,'  /iiir/i   <!r„liliiii,  T)  I!,  k  (!.,   H(». 

ISM,  c.  10,  xs.  2/'  and  5:t 

//.'/(/,  that  a  ci'cilitnr  fur  an  ainminl  l.'.ss  than 
."SJIKt  caiinnl  iipp.i.se  the  I'milirmatimi  nf  an  iii.snl- 
vent's  ilee.l  anil  (lischai'>,'e. 

//(  rv  Crrii//ifini,  I  W.  fi  (1.,  'Jll. 
Overriilcil  III  ikMiii  liiiinr,  WM.  k  (!.,  l-»!l. 

1875,  c.  10,  ss.  :t  ".  aiHll) 

A  ilclitm'  shall  tic  ilc.'iiicil  insnlvelit  — 

,'li'.       '•  //'  /((  Ikis  nilhil  II  nil  I  UliiJ  nf  liin  en  ''/- 

liifK  I'lif  tllr  jiiiriiii.ir  iif  viiiniiiililiililiij  ii'illi  /III  III. 

iir  if  lir  /inx  i.fliihiliil  II  sliiliiiinil  shinu'ini  Ih'k 

inilliilillj    hi     llli'il    Ill's-   liilhilitirs.    nr    if    III     IlKS 

iilhvrii'ixf  iivkiiiiii'liiiijiil  liix  iiisiilmirii." 

Ifi/it,  that  an  iilliilavit  for  ii  writ  nf  atl.icli- 
niciit  iin.ler  see.  !)  of  the  .\eL  was  siiHii'iciit, 
which  .set  nut  the  fact  that  the  dcldnr  hail 
calle.l  a  meeting  to  ennipmiml  with  his  credi- 
tms,  hii.l  exhiliite.l  a  stalcnicnl  shnwini;  his 
inaliility  to  meet  his  lialiilities,  an.l  hail  nllicr- 
wisu  aukiuiwledj,'.^.!  his  insnlveiiey. 

FoUi'er  V.   Uooiiii'i  '\  \\.  k  ('.,  .'144. 

18M,  c.  10,  8.  5«- 

"  Thf  iiixolri'iil  thdH  iiol  hi.  iiillHul  lo  rt  I'oii- 
Jlniiatioii  of  lii.t  iHsrliii.riji"  .  .  .  .  if  he 
.  .  .  .  "  has  III)/  ki  III  an  iiri'iiillil  lionl-  shnir- 
iiii/  lii.i  riniiil.s  and  di-flinrsiiin iil.-i  of  rash,  anil 
siirh  liook.-*  ofnccouiU  as  an:  snilnlih  for  lii.t  Inuli."' 

Where  an  insolvent  hail  not  kei)t  an  aeeoiint 
book  Hliowing  his  receipts  and  dislnirsemeiits  of 
cash,  and  the  Judge  of  the  (^ounty  Court  grant- 
ed him  a  .lischarge  of  the  second  class,  suspend- 
ing it  f')r  four  months  ;  nn  appeal,  the  di.scharge 
was  continued,  but  suspended  for  an  ad.litiimal 
period  of  lour  months. 


ISM,  c.  10,  N.  HO  - 

•'  All  ill  hi.s  iliii  mill  iiiiijiilili  III/  /III  iiL-iiiln  III 
11/  /lir  /iinr  iif  /III-  ixiriitiiiii  nf  n  ilnil  nf  iissiijii- 
mill/,  nr  11/  /III  /iini  nf  /In  i.ssin-  nf  n  "'rii  nf 
ii//iirliini  11/  iliiili  r  /liix  .!'•/.  mnl  nil  ililil.i  ihn 
hill  no/  /Inn  nr/iinllij  iniiinlili-.  .siihjiii,  to  Vihnli 
nf  iii/rri'x/.  xliiill  liiiri    /III    rii/lil  /n  riinl:-  nimii 

till'  ix/illr  of  /III'  inxnirril/ ;  mid  niliJinrxnii  lliiii 
lirilli/.  itx  Xliri/il  or  n/lirrii'ixi'.  linhlr  for  iiinj 
drill  nf  /lir  ilixolnii/.  mid  ii'lm  xillixniiii  iillij 
pinix  xiirli  drill,  xlinll  /liirriif/rr  .i/mid  in  Ho 
jiliiri  nf  /hr  nriijiinil  rridi/nr.  if  xlirli  rrnUlnr 
liiix  jirnriil  Ilix  rlniiii  nu  xiirli  ilrht ;  or  if  In  li'"^ 
not  jiroriil,  xnrh  iirrxmi  xlinll  hr  in/ilhd  in 
jirnrr  iiijiiiiix/  mid,  milk  iiinni  tin  i  xtnlr  fur 
xiirll  dill/  /n  llir  xmilr  r.rlilll  illliI  n'i/li  /In  sniiu 
ifirt  nx  llir  rrnlUnr  liliijlll  Imrr  do)ir." 

/Md,  that  under  this  section  a  debt  iliic  hy 
line  partner  of  a  iirni  to  his  cnpaitiicrs  cmii 
pinpeily  be  jirnviMl  against  the  seiiaratc  estate ni 
the  .lebtoi  as  soon  as  the  joint  dcbls  nf  iIh 
partnei'shii>  have  been  discharged  by  tlicsnhciil 
partners. 

Mnrhwtoxh  v.  Alinon  vt  id.,  Ii  11.  .\:  <i.,  V-^"^- 

18M,  C.  10,  8.  84- 

(.'Vs  lo  creditors  holding  security.) 
Claimant  hehl  the    jniiit  and  several  imlcs  ut 
Laild,  I'orter  &  Co.  as  a  liini,  an.l  of  each  nf  tlu' 
two  partners    in   their   in.lividual    capacity,  ii- 
1  security  for  a  debt  due  by  the  linn. 

//(/(/,  mi  appeal  from  the  County  Coiiit,  tlml 

I  under  section  S4,  of  the  Insolvent  Act  of  IS?.'). 

\  claiuiunts    were    warranted    in    ranking  mi  tlii' 

firm  estate  and  also  on  the  private  estates  nf  tin 

CO- partners. 

In  rr  Liiilil,  I'orlvr  >.y  Co.,  Imolveiih, 
Hull  lit  id.,  Cliiiinunls,  I  H.  .t  (i.,  •''-' 


I;i21  STATUTKS,  DOMINION.     (I,s7r),  Cii.  Id.) 

\hVu  «'.  Ui,  N.  Ill 


l'.\'2C, 


Till' jiiiNMi   ^ivi'ii  ici  I  hi'  ('iiiiii  iir  a  .liiilgc  liy 

>^<-  IHOU,  (*.  I((,  N.  nj,  '  M'l'lioll   r.'.'i  ol    IIk'    Iii.-xiUi'IiI    .\<  I   uI    I.ST.'i,  in  I'U- 

I  limvi' Uli  iin.si^liiT,  JH  ciilililii'il    til   llii'   ru.li'  lit   nil 

I  itNNigiii'i'    iliMiiliryiiij.;   an    niilri    hiililr   llllilrl    H.iiil 

Hrulillll,  mill  lIlii'M  lint   rsll'llil  III  III  lll'l  llljsriillillli't 

nil  llll'    |iai't  III    lllf   ilf.si;{lici',  llii'    ;;i'Miliil    |iii\M'r 

III    niiiiiViil   \iv\uii  i'<iiiiiiiii|ril   III  llll'  I'li'ililius, 

lllnlri  M'i'tiiiii  '_*ll. 

rilc  .lllilf^r  (if  llir   ('iillllly  Ciilllt    I'l'llMivcil   llll 

iiHsi^ni'i',  mill  it  ii|i|ii'm'('i|  tliiil  mi  ii^rccinciit  liml 

lici'ii  iiiiulc  witliiiiii   till' kiiiiNv  Ii'iIl;i' III  llir  I'l't'ili- 

liiin   ;,'('iii.'riilly,   iiiiili'r  « liii'li   I  hi'    UM.sigiici'  cmi- 

vcycti  till!  iiNtato  til  IiIh  t'litln'i'  iiml  iMi-|iai'tii('i',  lliu 

|im  tii('iMlii|i  ^iim'mili'i'iii;..;  llihi  y  I  hii'i'  iiml  iiiii'- 

,,11,1,,         .1         ,.  ,,■,,.    ;  I  hiiil  lll'l' ('('111.  Ill  III!' ilclriiiliiiit  « I'liiiiiiiiHitiiiii  of 

//i/il,   Iiml  whi'li-  (he  lliitli'c  Wil.s  iMilili.-dnil  iii  i  ,.  '  i  .    •       ..  ,      .        , 

.,         ,,      ..        ,.     ,,          ,,,..                ,        ,                                           tlllly   IHTl'l'lll.,  mill  ICi'CIVIIlJ' lllllll  till'  lllHllVllltlH 
liii/i'llr       ot    llll'     jillh.    iiiii         H'    liii'i'llliL'  al  "^  .'  .      ° 


iMt.i,  <•.  in,  N.  m 

(rl.lilllH  nil  ilivjili'hilN,  nliji'i'liniis  In). 

Uliji'il  imiM  III  I'Liiiii  an.iiiisl  iii.inlvt'nt  I'.slnli' 
i|i-iiii^-*ril  «  hi'ii'  iii>  i'\  iili'iH'i' WIS  lili'il  with  till' 
ilx^i'^lli I     si'i'V  ii f     i'n|i\      111    nliii'i'l  jniis   nil 

rj.lilll.lhl. 

Ill  II'  Miiiliiii,  CiiIIii'h  C/iiiiii,  •_'  11.  \'  (i.,  171 ; 

I  •'.  I,.   I'.,  iilll. 

IS».».  f.  W,  H.  101     (MotU'O  orilHM'tlllJJS,  J'lC, 

llDW   {liVDll) 


■llii/i'llr"  nf  ihi'  Jilih,  ami  lln'  iiu'i'liiiK  ul 
«liiili  llir  I'li'ililnis' ,issii,'iii'i'  was  a|i|)iiiiil('il  \v,i>< 
iii'lil  nil  llll' '-'".Mil,  till' a|i|iniiiliiii'iil  was  iiii'HiiliU' 
:iiiii  iiivaliil,  "ill  least  li'ii  ilays'  iinlii'i'"  liciiii,' 
iri|iiiii'il  liy  till'  .Statiili'. 

I'lirb  r,  As-iii/iK I  ^  V.  A'(  (/»// «/((/.,.">  I!.  \' ( I.,  |,'i7. 
.Mliriiu'il  nil  appeal  tn  ihi'  ri'i\y  Cniiiicil. 

IHI.-.,  {-.  U\,  s.  IW 

"  l\iin/  iiKsii/nrf  s/iii/l he  Huhjvcl  litlhi' niiiiiiiiiiiii 
iin.iilic/iiiii  (>/ lliv  Coin/  or  Jiidi/v  in  the  mimv 
mmiiirr  mid  In  the  hiiiiic  vaIviiI  iik  IIiv  onliiidii/ 
iijliiria  III' llll'  Ciiiiil  iiri'  suhji'il  III  i/KJiiriii/ir/idii  ; 
'lull  llll'  /irriiniiiinii'i'  of  ///.i  ilnlirx  1:1111/  hr  rom- 
;ii'//((/,  mill  till  ii'iiiiilii's  S11111//1I  or  ili'iiiiiiiili'il  lor 
'iiiurciiii/  mil/  i-liiiiii  for  11  ili'lil,/ii  ivili'i/e,  iiiorl;/iii/i\ 
Itijiuilln'r,  lii'ii  or  riijlil  III' /iiii/iirli/  ii/iini,  in  or  lo 
'lull  fji'i'il.i  or  /iro/ierli/  in  thr  limnh,  /inKsi-.-sioii  or 
•  Hiliiih/  of  mi  iiHHii/iii'i',  mill/  III'  olihiiiii'il  III/  mi 
"'■lll'l' 11/ 1 /ic  Jiiili/f  nil  xiiniiiiiiry  /itJilioii  in  riirii- 
I'diuor  0/  l/ii'  Cinirl  iin  a  riilr  in  leriii,mnl  not 
'I'l  mill  mill,  n/liir/iiiii'iil,  nji/ioHilion,  uriziin  or 
"ilii'i-  iiriiii'i'illni/  of  mil/  kiml  ir/uiliTir ;  11111/ 
"kilii'iirr  1,1/  l/if  ,isnii/ni'i'  to  unr/i  orilir  niiijl  In 


niic  ihiiiismiil  iliilliii'H  fill'  their  ^{iia.i'iiiitee,  the 
liilliei'  tn  hiilil  I  he  estate  a.s  Neeiiilly  fur  payiiieiil 
nf  the  .':«I,(MM).  'I'lle  ( 'nllll  reveiMi'il  the  ileeislnll 
lit  iheCnillily  ( 'nlll't  nil  the  i^iniiiiil  alinve  iliili- 
eali'il,  lull  ii'fllseil  the  assignee  the  ends  nf  till! 
appeal  ami  ar^iiiiieiii  ami  nf  the  prniieiliiiL^s  ill 
the  ( 'nilllly  <  'iilll't. 

.lanieH,  .).,  ilisnenliiii/  as  In  the  eiistN, 
/;(  I'c  KkIiiIi'  of  J'!rmi.i,  rx  jiiiriK  h'lilconvr, 

I  It.  kiu,  ;j'j(i. 
IK45,  r.  t((,  M.  12s    (Apiieal  in  iiiattcrM  of 

illHolveiiey) 

All  nriler  vas  made  liy  tin.'  Cnuiity  ('null 
•linlge  ill  an  iiisnlvent  iiiatler  iiiuler  the  Aet  nf 
I.ST.'i,  fill'  tlu'  |illl'pnse  nf  appealing'  fl'niil  whieli 
the  iiiHiilveiii,  within  ei;^ht  days  finiii  the  makiiii; 
nf  the  iil'iler,  tiled  a  linlid  applnved  nf  liy  the 
.lmlj,'e,  and  nlitained  finni  him  an  nnlei'  yiving 
leave  tn  appeal  tn  this  Cniilt.  Nn  fill'lher  pro- 
leedings  were  taken  in  this  Cnnrl  within  the 
ei^ht  days. 

Held,  thai   tlio  uppellanl   had   nnt   "  ailiipt(Ml 


■"'irr/,ic  1,11  ,,,r  iinnii/nrr  ,i,  sum   oriiir  111111/  lie        ■  ■' .■-,...... 

'il<>r'i'ill,i/\'<ni'/i(\,iii'lor./,iil!/riinili'rl/ii'/ii'nidn/]\''^^^^^^^^  ""  ""'  •^'^'''  iip|'''iil  "  "  itiiin  the 
•I'min-ixiinnii'iit.  iis  ihr  riin/i'in/i/  orCiniit  or  ili's-  ''"'■^"'"K  "»'  -^''t^lion  i-'.S  nf  the  Ael  and  that  Iho 
,   ,.  .  '    .  '  I  ..II 1  1 I I...  I 


Jn  rv  David  Jinrkli'i/,  .'i  II.  (.V  (;.,  ir>|. 


'iiiiiiisonnii'ii/.iiHiorconfi'ni/i/,,,  .„„,,.„  ,,,.,- 
"Ui'iii'i'  f/irrrlo,  or  liv   nun/,  //'  not  i,n   „//,•,■/«/! '^I'^'b'""' ''I'l";'' '"";<  •«■  'jiiHshed 
"'iiiliii'i',  hi'  ri'niuiH'd  In  tliv  ilisiri'lion  of  the  Court 
'"  ilililili:" 

lliit's  lint  pi'ovi^iit  an  aetidii  of  replevin  ajLjainst 
ii  :is.'<l;^iiee  ill  iiLsiilvciiey  tn  recover  poN.se.ssimi  nf 
:'""ls  I'diiveyed  niider  a  I  till  of  .sale.  The  .sniii- 
"I'Hy  |irnee('din^;s  therein  iiroviiled  for  are  nlili- 
-ii'iiy  "Illy  in  the  ea.se  nf  duties  devnlvini;  nn 
'lif  :i»sij,'nec  liy  virtue  of  the  Aet. 

I'inio  V.  Ciirir.ii  it  nl.,  (i  H.  i>t  <i,,  ts7. 


\\ll('i('  ^rnnds   wi^re    lent    tn   llu!    insnlvenl    liy 
I'l'iiilil! 'and  di'tained  liy  t he  assignee, 
ll'lil,  thai    they  eiiiild    lie   replevied   wilhniit 

I'llUllll. 

It'iiiiiioii  V.  Ciinrjt  It  III.,  {\  \l,  ,\;  (;.,  |<)i); 

(iC.  L.  T.,  .-)»(). 


1SI.1,  C.  1«,  s.  1»3- 

"//■  any  sale,  di/iosil,  jilidiji  or  Irunfir  In 
iimdi  of  liny  prnjii riy  rial  or  pc.r.ioiiitl  hy  am/ 
/iirson  in  ronli  ni/ihitioii  of  iiisoln  iiry,  liy  iray  ,)/' 
•<!  I'lirilyfor  jiayiin  lit  lo  any  rrtditor;  or  if  inn/ 
/nii/ii  rIy  riii.l  or  /n  rsonal,  iiiornlili  or  iiinnoriihli , 
ijoijils,  ijl'ii'l-1,  or  raliiahli'  minrily.  In  i/irin  In/ 
ii'iiy  of  /laynn III  hy  sinh  /iirson,  to  any  rrnlilor 
ii'lii  nhy  siirli  I'l'iditor  ohlaiiit  or  irill  ohiain  an 
iinjnst  /in  /in  lll'l  on  r  thi  ollii  r  militors,  xiwh 
sail ,  ill  fiosil,  /iliiliji ,  triinnfi  r  or  /myini  nt  ■fliall  lie 
null  and.  niid,  and,  till  tnhjirl  thi  nof  may  lii'  ri:- 
I'on  red  hark  for  th'    In  in Jit  of  Iki    1  stall    In/  thi 


i:i27 


STATin'KS,  DOMINION.     (IS?:..  On.   Ki) 


i:i2H 


luiiijui  I ,  ill  mil/  l^iniii  iif  riiiii/ii  I' III  jitr'niliiiiiiii  : 
itiiil  ij'lhi'  otlllli  III  iiinili  iri'hiii  lliirljl  ilni/''  m  if 
III  I'lii'i  II  ill  inn  ml  nl'  iiii  a  ■aiiiiiiin  iil,  nr  I'nr  I  In  crifd 
(//■((  icrll  iif  iilhii'liiiii  III  mull  I'  Ihii  Ai't,  nr  ill  iiiiji 
linn  II I'll  ririi rill,  irlninnr  iiii'h  iliDliiiiil  thiill 
linn  III  I II  fiilliiii'iil  liji  nil  nxiiiiiimi  ill  iw  liif  lln 
imiii  of  iiiiit  ii'i'il  of  nllnrliiiii  III,  il  xhnll  In  jin- 
xiiiiliil  lo  linri  III  I II  "ii  iiinili  in  finili  iniilnliini  »;/' 
iiiiolri  nri/." 

I'),,  11  Hliip  iiwiirr  ill  VuriMciulli,  N.  S,,  .'di- 
liliiycil  iiH  IiIh  jL)^'('iit.H  ill  Iii\'i'r|ir)iil,  •!.  \'  Cn.,  Ilic 
ilrl't'iiiliiiit    .1.    tiring  II   iiii'iiilii'i'  of   llit'ir   liriii, 

mill,  llH  nielli H   ill    Ni'W   S'lilk,  lir   cllllilnyt'il   (lie 

linn  of  S.  I*.  It.,  iif  wliicli  llir  ilctViidaiil  S.  uaH 
a  iiii'iiilii'r.  Ill  the  I'oiii'Mi'  of  liiM  ili'iilin^'H  with 
tln'sc  11^,'4'mIh  III'  lirciiliic  illilt'liti'il  to  Imtli  til'lliN 
for  iici'('|iliinwM  l)y  t  linn  of  his  drafts  iiiiuU' whi'ii 
III!  was  ill  waul  of  iiioiit^y,  lowartls  the  jiayiiK^iil 
of  which  they  ri'i't'ivi'd  tlif  frcinhls  of  his  vcMsrls 

and  rciiiittaiiccs  in  money.     On  oiii casioii  he 

said  that  hi-  would  ^ivi'  to  thi-  Livcriiool  linn  a 
niortijaj^con  the  " 'rHi'nio),'ora  "  or  tlu!  "  Maj^- 
iiolia,"  when  they  should  re(|iiir(!  ft,  and,  in  a 
siilisei|ii<'iit  iu)ii\'ei'satioii  with  a  ineinher  of  the 
linn,  he  a>,'reed  to  give  siiuh  niortjjaj^e  on  eei- 
tain  I'oiiditioiiH,  whii^li  wore  not  curried  out.  Me 
also  proiiiised  the  linn  ill  New  York  lo  (,'ive  llieiii 
seeiirily  "ill  ease  anything,'  haiii»eiiiMl,"  and 
mentioned  aH  sueli  Hoeurity  a  iiiort^jage  on  the 
"'rsenio^,'(ira."  Aeididiiij,'  to  l"'.'s  own  slate- 
ini'lit,  he  had  siiHicit'iit  proiierty  to  pay  his  liu- 
liilities  when  these  conversations  took  plain'.  A 
few  weekK  after  these  (ronverMalion.s  V.  executed 
a  inortf^ageof  "JO/IU  shares  of  the  "'rsernoj^ora," 
ill  favor  of  the  defendants  .1.  Hi  S.,  and  had  the 
same  recorded,  and  within  thirty  days  there- 
after a  writ  of  attachment  in  iii.solveiicy  was 
issued  a;j;aiiist  him.  The  plaiiilill',  who  was 
appointed  assignee  of  K.'s  estates  l»y  Ins  creditors, 
liled  a  liill  to  have  the  mortgage  set  aside,  claim- 
ing that  it  was  void  under  section  \',i'A  of  thi^ 
Insolvent  Ait  of  IHT.'i.  The  defendant  .1.  did 
not  aiiswn'  the  plaintill's  hill,  ami  the  other 
defendants  denied  that  the  mortgage  was  made 
ill  contemplation  of  insolvency,  and  also  claimed 
that,  as  it  was  made  under  the  provisions  of 
the  Merchant  Sliipi)ing  Act  (Imperial),  it  was 
not  affected  l>y  the  IiiHolvent  Act  of  IS7">.  The 
.Jiiilge  in  Kquity,  btsforc  whom  the  cause  was 
heard,  made  a  decree  in  favor  of  the  plaintiff, 
and  ordered  the  mortgage  to  be  set  aside. 

On  appeal  to  Ihf  Siiin-tvu  Court  of  Nora  Srotia, 

Ile/d,  that  the  provisions  of  tlio  Iimolvent  Act 
of  1875,  with  respect  to  conveyance!!  made  in 
contiMiiplation  of  iiiHolveney,  ai>ply  to  mortgages 
on  ships,  notwithstanding  the  in-ovisiona  of  the 
Merchant  Shipping  Act  as  to  such  mortgages, 


and    llie    lllipi'lial     \<'l    to    IciiiuM'   doiililx  iih  In 
the  '-alidily  of  I  'oloiiial   laws, 

W'eathellii',  .1.,  (//'i-r  nlinih 
Kiiinijl,  A^xiijiiii ,  V.  •Iiiiii  1  1 1  nl.,  ."i  U.  \  (1,,'JII, 
On  ii/ijiiill  In  lln  Sil/ni  iin   I'mul  ul'  < 'niiinlii, 
//i/(/,  alliniiiim  ihc   iiidgmeiil    ImIo«  ,   ||iiii\, 
.1.,  ili-iii  nlliiij,  that  the  promise  to  give  •.(•iijrii\ 
"in  case  anyljiiiig  shoiilil  happen,"  loiiM  i.njy 
mean  "iniasethe  parly  shouM  go  inin  iii.ii| 
veiicy,"  and   that    the   Iraiisfcr  was  voiil  iiiiijii' 
sei'tion   l:i:i  of  the  Jnsolvelit  Act  of  lH7,"i. 

//(/(/,  iiliii,  that  Ihc  provisions  nf  ilic  Mir 
cliaiil  .Shipping  Act  diil  not  pieveni  ilic  |ii<>|i 
crly  ill  Ihc  ship  passing  to  I  he  aHHignec  mhiIii 
the  Insolvent  Act. 

./()»( >!  V.  Kiniiiji,  II  S,  (',  l!.,7iis 

The  insolvent  T.  .1.  I!.,  being  iiidcliicd  in  ih.' 
Merchants'  Hank,  made  an  arrangcmcni  in  |iiii 
siiaiicc  of  whicli  he  addressed  ,i,  Icllci'  In  lln 
Accoiintaiil  of  the  llailwa.y  Dcparliiiciil  mi 
()ctob(U"J'2iid,  IH7S,  instructing  him  toseiidaiij 
che(|iie  coming  to  him  from  the  depart iiiciil  ii. 
the  care  of  .McLean,  Cashier  of  Ilic  liaiik.  Tlic 
cashier  reccivi'd  the  letter,  which  was  addicsMd 
to  the  insolvent,  care  of  .Merchants'  liank,  aini 
having  removed  the  eheiiiie  which  he  iiiilciistil 
"  T.  d.  I'..,  per  «i.  M.,  agi'iit.  For  Mi'Vclianh 
Hank,  (Inaiaiiteed.  (!.  .M.,  cashier,"  drew  tin 
money,  without  authority  from  the  iiLsnlvint, 
and  refused  to  pay  it  over.  At  tlit^  time  cl  tlic 
arraiigcinent  in  IS7S,  T.  d.  I!.,  was  in  iiiMiilvciii 
circumstances,  with  notes  lying  overdue  at  llii' 
.Merchants' Hank, and  jiidgmeiitsrecoidedayaiii!'! 

him. 

//(•Ill,  that  till' anaiigi'iiient  was  made  in  I'liii 
lemjtlation  of  insolvency,  and  was  williiii  lIu' 
provisions  of  xoetion  l;t3  of  the  Act  of  1,S7.'>,  ami 
that^  till!  assignee  was  eiit  it  led  to  the  full  aniiiiini 
received  by  the  defendant  bank  with  I'osls. 
Cn^ii/lilini,  Ami/iiri;  v.  Mrrc/iiiiifM'  liniil;  i-l «/.. 

;{R.  .';•(;.,  i.B 

1875,  C.  1«,  8.  I»«- 

(I'lirchasing  goods  on  credit  by  persons  know 
ing  themselves  unable  to  pay,  to  be  fiiiml,  iiml 
how  ]>iinishable. ) 

l/ilil,  unnecessary  to  allege,  in  proceediiiu'  f"i 

penalty  under  this  neution,  thal^  thi!  dcl'ciiiliiiii 

was  insolvent  within  the  ineaning  of  the  Ail. 

llurri union  v.    iViltir,  '2  K.  fc  ('.,.'»-' 

.Sf«  1869,  C.  1«.  s. !«. 

I     187.'»,  c.  1«,  8.  144- 

j      "  '/'In    ilidh  of  n.sslijnnniil   anil    of  Imii'^fi 

....     xhnll  III'  prima  farle  ei'iiknn  in  nV 

\  Courts,  whilhirriril  or  rriminal,  of  xnrli  ap)m«' 


i:12!i 


STATI'TKS,  noMINFON,     (I.s7(i   Isso.) 


IMMO 


iiinil  ( I.  I .  llii'  >i|i|Mi|||l  iiH'iil  Of  I  III   iiHnl^iM'i),  fi ml 
iif  ill'   rnjii/nri/jf  uf  nil  /niii'i  nlimis  ni    lln    imn 
iiniiifniiil  Htilii'iili  III  I  III  1 1  III." 
//'/'/.  t hut  lilt' Hi'i't inn   iiiiik<'N  llii'  liMMJ^iiiiit'til 

.\iililMi'    iif    Ihi'     ri'yiilalily   (il    tll(>    IH'iii'i'i'ilill^'H 

iikiii  with  a  \  ii'w  III  ill  lii'iim  iMiiili',  mill  iiiiili 

iiii;   iimii'.      Il    (liii'M  iiiii    iii;iki'   I  III'   MNNi^iiiiii'iit 

ivlililirc  III    till'  liiHiilvi'iil   liiU  ilii;  liri'li   ii   Iniiln. 

I'll  nililiiii,  /Isiiijii,,,  \,  I'hiHir!:  1 1  iil., 

•_'  K,  Hi  <;.,  !H»  J 
I  (',   L.    r.,  .-itiS. 

Alliilili'il  nil  ;i|i|ii';il   tollii'  Sii|ii'i'iiii'  ('ninl  ul 
I  III  III  I. 


tN««i,  r.  :tl,s.  n 


7  s.  r.  K..  ;t(M; 

•-'('.  I.,  r.,  •jis. 

>'",'</",  INSOIiVKNrV. 
^  '  IHJJ.i'.  .1,  H.  .VS. 


wlii'li  III'  IN  Milt  Milt  III;;  mill  ii('tiii){aN  ,S|i|H'iii|iiiiy 
Mii^'iNtiiili'  till'  \Milil  "mIIii'i"  III  HIX'.  |ti:i  l|llt>M 
lint  I'M'lllili'  till'  'S|  i|M'iii|j{iiy  M,i;;iMtntli',  >\  lln  Im 
It  illlylii'i'  III  till'  I'i'iiri',  tl'niii  sit  tili^  UN  nlir  n|  tin' 
lUn  .liiNtiriN  lii'lnl'i'  wlinlii  llir  |il'nHi'i'lllinll  lii.iy 
III'  lilnll^'lit. 

i,iiiiiii  \.  iliiihiiiii,  (1  It,  ,\  <i.,  •:».!: 
lie.  L.  I'.,  :.;«7. 

>'".'/<  A\AIH  TKMI'KltiMK  KM. 


Ih;o.  c.  :n 


Vm  imim,  v.  10. 


Ih;s,  c.  10    (raiDMla  T(>m|M>raiin>  Act) 

I'l     il.    S.     C,     I!.      l(»l>— 

Nil    ;i|l|ii';tl     Irnlii    Ciiimty   Ciiml     In    S|||i|'('|iu' 

"lui,  ill  II  i.'iisc  iiiiiici'  ihiH  Aiif,  I'dinnvKil  liy  up- 
]'i  illiiiiii  till'  Miij,'iNiiivlc'M  Cimit  In  tlic  Ciiuiity 

I  'lilt,  :illlinii^'!i  till'  Loi'iil  Act,  ninmii/illf,'  I  lie 
iillily  ('nulls,  f,'ivt'M  It  ^'('licntl  llpliriil  tn  till' 
iijMi'Mir  Cnlirt. 

Miltniiillil  V.  AfrCltis/i,  .")  II.  ,^  (;.,   I. 

A  writ  111  n  liliirdri  wiiH  isMiuil  In  rt'iiinvc  a 
"ii\iilioii  iiiiilcr  till'  Ciiiiitila 'IViiipcnmof  Ai^l. 
Ilii'Wiil  WHS  ullnwi'il  liy  a  ('nliiiiiissiniior,  itiiil  it 
»!!»  lint  slinwii  I  hat  tlii'ii'  was  im  Siipri'ini'  nr 
I'l'iiMly  I'liiirt  .liiilj,'!'  ill  the  L.Minty.  (Acts  nt 
'u|i,  10,  SCI'.  2.) 
//'III.  lliat  the  wiil  iiiiist  he  s('t  asiilc,  as  it 
u-iiiii  sliiiwii  that  liic  ('iiiiiiuissiniicr  had  jiiris- 
ii'iiiiii  tn  issiu^  ii.. 

/''/■  .Mi'Dnnalil,  ( '.  .1.,  ami  Wt'atlicrlic,  .1., 
lilt  llic  iiKliiisciiuMit  "allnwcil,  scciiiity  liaviiit; 
'iilirst  ijivcii  ami  lilcil,"  was  not  siilliciciit. 

(Whill  V.  (y/lill,  »  |!„  &  (i.,  114. 
'Jmn-i,    wild  her   the   dccisinii    in   dtn-liill  v. 
I  'WW/  is  ci)iisi<tciit  with  MrhiiiKihl  v.  J/iCiilsli, 
it(i.,  I,  ami  /i'<   Cnmll,  (X  jtiirli   iHidilim, 

I'l!. iH;.,  ii(». 
Ks,  ( .  i»,  s.  loii    rr.  K.  s.  I'.,  V.  100, 


103 

I'l'iviili'sthat,  proHccii lions  iimlcr  the  Act  may 

I  •  l'iiiii!,'hl ,  "  /;)  Xdi'ii.  Sriiliu.  Ill  I'ltri  iiSliiii  iiiliiini 
11    '  '  *  .' 

'*/i>/c(i/(  nr  III  fori  aiii/  lirn  olhi  r  Jnslin  ^  of  I  Ik 

I''""'  <if  Ihi  Connli/,"  <(r. 

'/'W,  tliat,  alt,|i<)iij,'li    wJK'u   the   Stipcmliary 

''a-'liMIc  sils  ami  nets  as  sucii,  sei'.  llll,  pro- 
|'«is  iin^  nth,,,.  Jnstiec  frniii  siltiiii,' with  him, 
I"  i<  to  avniil  ills   lieiiiy  nver-riihul   liy   otlu'i' 

lii<iii.t!s  i-laiming  In  fni'in  part  of  the  (Joiirl,  yet  |  qfltrir  or  pirxon  hi/  him  (hjmliil     . 

4a 


ISSO,  <•.  0,  s.   '.* 

(I'l  iNiilieiN  Ni'iiteneeil  tor  teilils  less  thai:  two 
yeui'H  cannot  he  seiiliMiccil  In  Dnrchesler)    - 

A  prisoner  WHS  convicii'ii  ol  larceny  ami  sen- 
Icliceil  III  line  year's  illlprisolinielit  ill  Dolihester 
I'ciiileiil  iaiy.  Tlit^  Wanleii  refuNcil  tn  receive 
llilll.  I'risniier  was  then  taken  tn  the  Cniinly 
Uaol. 

N'n  Kii;^lish  case  ill  poinl  is  to  lie  fniiiiil,  lull 
l\t'n  Aiiiei'ican  cases  were  cited  in  which  it  witH 
held  I  hat  a  iiieriMtccidenlal  error  in  pronoiiiiciii).' 
sclilelice  was  not  a  sllllicieiit  grnlind  for  (lis- 
cliaii;iiii;  a  priMoiicr.  Sentence  was  aniiMlded  on 
reiiirn  {it /nihi'iis  cor/nis  tn  nne  year's  inipriNnii- 
iiiciit  in  the  cniiimnii  ^iml, 

//(  re  JiiiT,  '_'  II.  i^  «i.,  77  ; 
I  ('.  L.  T.,  r.,v.. 

ISNO,  c.  2K,  s.  22  aiHl  n    { The  liullaii  Act, 

1880)    CI'.  K.  S.  CV,  c.  4:i,  HH,  21  and  26  — 

Sec.  Ihi  enacts  that  "  Jio  /n  rioii  or  Itiitlnn, 
iillii  r  iliini  (III  liiilliiii  oj'llii  liiinil,  iliiill  xiUli  ,ri- 
■<iili ,  or  III! Ill  ii/ioii,  orrii/ij/  nr  ih^i  niiij  Itiiiit  or 
iiiar^li,  nr  sknll  m  llli ,  rixiili.  ii/iov  or  omi/iif  iiiii/ 
riKul,  nr  iillnirniiri  for  rntiili,  riinuiiiii  thruiii/h 
mil/  ri  SI  rri  In  loiii/iiu/  to  or  nrni/ili  il  hi/  siirli  litiiiil." 
Sec.  'J7  enaiits  that  "  //'  uiiij  pi  rsoii  nr  Inilinii 
iilfii  r  iliiiii  till  Indian  of  the  hand  In  irhirh  Ihi 
nxirri  In  loiii/s,  irilhniil  liriiisi  in  irriliiii/  of  Ihi 
Sii/ii  ri  III  I  lull  III  ill  III  ral,  nr  nf  sniiu  nllin  r  or  pi  r 
son.  difiiilid  III/  him  for  Ihat  pnr/iosi-,  Iris/mssi.i 
n/ion  iini/  of  Ihi  said,  lands  ....  hi/  nil- 
linij,  riirri/ini/  nirai/  or  nmorimj  tin ri from 
.  .  .  .  limhi''  or  haij  thin  on,  .... 
//((  /Il rsnii  or  Indian  sn  Irisjiansini/  shall,  on  con- 
ririinn  tin  ri  of  hi  fore  any  Sli/irndiuri/  Miii/i.-lrnli , 
.     .     .    forfi  il  and.  pai/  Ihr  -van  of  tin  nil/ 

dollars     ....     nr,  i/'ani/  part  of  it  rnnnins 
iui/iaiit,lhisaiilSiip(rinl<nilint-(iiiin'td     . 

niai/  rommil  thi  jnivon  in  difanll  fo  Ihr  romnion 

i/oal." 

('.    17,    sec.    {»,    Dom.  Acta,    ISSl,  enacts - 

"All  Slurijl'i,  dr.,  to  irhom  any  snrh  /ironss  is 

dirirlid  hi/  the  SuprrinlcHiknl-Gencrnl,  or  by  any 

.     shall 


1331 


STATUTES.  DOMINION.     (1,SH1-IS82.) 


\m 


obey  till;  siimi  ;  (mil  ii.ll  otliir  (ijlln  ri  shall,  ii/inii 
riUKOiiahli  riijiiisilinii,  ussis/  in  /In  iririitimi 
thiriofV     H.  S,  ('.,  c:.  4;<,  s.  -J!). 

Sec.  3  of  c.  SO  of  lilt;  Doni.  AuIh,  ISS2,  (ex- 
tends all  powers  givon  to  Slipi'iiiliai'y  MiigiH- 
tiiites,  Poliui!  Miigist rales,  kc,  to  dispose  of 
oases  of  infraction  of  the  Act  cif  l,SS(»,  to  tlie 
Indian  agents. 

IMaintiir  having  uontinntul  to  trespass  ii)ioii  a 
portion  of  the  Indian  Uesi'rve  land:-,  at  Why- 
cocoinagli,  Inverness,  Ity  cutting  hay,  etc.,  afler 
notice  to  cease  doing  so,  one  of  the  defendants, 
as  Indian  Agent  and  .fustice  of  tlu!  Peaces  issued 
a  warrant  under  which  plaiiitill'  was  arrested  liy 
the  iShcriir,  assisted  hy  anotjicr  defendant,  who 
was  called  upon  hy  the  Slierill'  for  thai  jjuipose, 
and,  after  trial  and  conviction,  was  coniuiitled  to 
gaol  in  <lcfault  of  the  line  imposed,  under  chap- 
ter L\S  of  the  Dominion  Acts  of  ISISO,  .see.  'J7. 
I'laintifT  thereui)on  brought  an  action  claiming 
damages  for  the  arrest,  and  the  jury  having 
found  a  verdict  in  his  favor  against  Ihe.ludge's 
charge,  the  verdict  was  set  aside. 

McLian  v.  Mclsaar  il  (il.,  (i  R.  iS:  (i.,  .'KI4  ; 

(i  ('.  L.  'I'.,  4,');{. 


18S1,  C.  \1,  8.  »- 


.V',  1880,  C.  2H,  s. -i'i. 


1881,  ('.  25.  s.  10»    <  f.  K.  S.  r.,  c.  ;{8,  s.  .W 
The     Dominion    (iovernment    Railways    A('l 

provi<leH  that  "  Ao  act  ion  i^/iii/llw  l>roui//il  ai/aiiid 
mil/  officer,  emploi/ee  or  sermmt  of  the  dcpar/meiit. 
(of  Jidilwai/s  mid  C'muds)  for  miijt liimj  done  by 
virtue  of  his  office,  seroicc  or  employment, 
except  within  three  mmiths  after  the  net  com- 
mitted, mid  upon  one  month's  prcviouH  notice  in 
writinji" 

Defendants  entered  into  a  contract  with  the 
Crown,  represented  hy  the  Minister  of  Railways 
and  Canals,  for  the  construction  of  a  branch  of 
the  Intercolonial  Railway  at  Darlmouth,  N.  S., 
and  in  the  prosecution  of  their  woi-k  under  the 
conti'act  entered  upon  the  plaintitl"s  land. 

An  action  having  licen  brought  against  defend- 
ants for  breaking  aiul  entering, 

Held,  that  defendants  were  employees  within 
the  meaning  of  thcx\ct,  and  entitled  to  the  pro- 
tection given  therein. 

McDonald,  (!.  ,].,  dinxcn/uiii. 

Kearney  v.  Oakrs  if  ai,  "JO  N.  S.  R., 

(S  R.  kV..),  ;{(». 

1882,  c.  as    (Till'  Windins-iin  Act)    (f. 

R.  S.  C,  c.  129- 

Jli'ld  by  Smith,  Weatlierbe,  Rigby,  and 
Thompson,  .1.1.,  that  a  company,  though  incor- 
pom,ted  in  Creat  Hritain,  can  be  made  the  sub- 
ject of  a  winding-uj)  order  in  the  .Supreme  Court 


I  of  Nova  Scolia,  under  ilic  Winiliiig  up  Aii  u\ 
I  l!SS"J  (( 'anada),  when  I  he  company  is  carry iiij;  un 
busine.s.s  in  Novii  Scol ia,  and  has  ils  niaiiiiucimni 
here  altogellier  or  in  pari. 

I'l  r  McDonald,  .1.  The  Courl  has  juiJMlii 
lion  lo  mak(^  such  an  order  when  an  Act  nf  iIk 
Provincial  Legislature  has  conferred  on  llninrii 
pany  the  righl  lo  hold  lands  in  Nova  Siuljii. 

McDonald,  ( '.  .1.,  dissDilhiij,  on  the  >.'r(JiiiMi 
that  the  Winding-up  Act  does  not  and  cdiilil 
not  confer  jurisdiction  over  foreign  conipiinics. 
Hi  Id,  by  McDonald,  ('.  .1.,  and  M(  ltiiii;i|,|. 
Smith,  and  Wealherln!,  .1.1.,  that  a  wiiidiiii'  'iii 
order  unisl  name  llie  permanent  lii|Miil;it>ii,  iiml 
could  Iheri^fore  only  be  made  afler  noijcc  in 
crcclilois,  conlrilMilories,  clc 

Rigliy  and  Thompson,  .1.1.,  dlssDitiiii/. 
Ill  ri  Sill  I  CiDii/iiiiiy  nf  CaiKula  (  /Jiiiitiil), 

o  R.  &  »i.,  17  kVX 
On  iiji/Kii/  Id  flu  Siipmiii  C'oiirf  of  flii.iiiiilii, 
JIilil,  reversing  ihe  judgment  of  tlic  Siipninc 
Court   of  Nova   Scotia,  lAmrnicr,  .).,  (//«iH^'m/. 
that    45   Vic,  c.  2.'{,  was  not  appliciible  In  such 
company. 
'J'lii  Ml  rrliiiiif"'  Ikuik  of  IfiiUfiix  v.  (!illi<]iii, 

IMS.  C.  M. ,;!!•.'; 
.-.('.  L.  T.,'.':ii. 

The  Kldorado  Union  .Store  Company,  ihcur 
porated  by  Act  of  the  Legislature  of  Ni>v;i 
Scotia,  caj).  (il  of  ISSO,  is  a  trading  coiiiiwiiy, 
and  as  such  may  be  wound  up  under  lliciiin- 
visions  of  the  Dominion  Act,  cap.  'l',\,  of  4."i  \'it'„ 
if  in.solvent. 

in  a]iplying  for  a  winding-up  order  it  sluiiiiil 
be  shown  in  tiie  petition  that  liic  coniiiaiiy  i> 
insolvent,  \\w.  general  statement  "that  the  iniii 
])any  is  insidvciit  within  the  Act"  not  luiii;: 
sullicient. 

/((  /■(   Till   /'J/ilornilo  Uiiiiiii  Sloii  Co., 

(I  R.  >S:(;.,."pl4; 
(iC.  L  T.,.il'.' 

An  order  was  made  for  the  win(iingii|)  "f  tin 
comi)any,  and,  under  that   order,  a  iirovisicniil 
li(|uidalor  was  api)oinled.     The  onlcr  Wiis  mI 
aside,  as  notice  had  not  been  given  as  i('(|uiml 
by  Statute.     Noti(T  was  thereui)on  given,  iiml  >  I 
new  order  taken,  without  any  further  pelilii'ii 
//(/'/,  that  no  1U!W  petition  was  necessiiiT, 
fn  ri  Sfiil  Company  of  (Umailn  {/.iinilnl}. 

,->  R.  Hcii.ny 
1882,  «'.  'ill,  ss.  8(»  and  81      It.  S.  (..  •  i 

120,  ss.  84  and  85- 

S.  8<).  "  Till  rarion.tConrf.sofflii  /VociHrt «,"*'' 
//(,  diidijix  of  till  ■■<aid(^onif.i  rispirfirilij,  .>7(ii/'''| 
anxiliary  to  one  another  for  the  pnrjmxii  i,l  '*"| 
A<f  :  the  inndinijnp  nf  the  Imxini  ><■<  of  ih  i 


\:m 


8'1'ATIITICS,  DUM1NI(;N.     (I.S.S2-1N.S7.) 


VSlii 


1,(1111/  iir  III!  II  iiiiiili  r  i,r  jiritri ,  iliini  ,■(  liiliiiij  I  In  n  la 
null/ III  fniii.sfi  rrn/  ihimoiii  Cmirl  liiiniiilln  r  in'l/i 
'III  i-oiiriirri  iin  ,  or  lii/  tin  ai-ili  r  in-  mih  /••<,  n/'  llti 
urtiCiiiir/-',  or  1, 11  nil  nvili  r  a/  lli<  Sn/in  nn  Court 
iij  Cniiiii/d." 

S.  ST.  "H'lini  iiiiji  iirili  r  iiuiili  hji  uin  Ciiiiri 
.-  miiliriil  lohi  t  lij'iiirni  liji  niiullii  r  Can r/,  nil  iijliri 
•"I'll  "/III'  iirili  r  111  iiinili ,  n  rlijiul  Inj  Ihi  rli  rk  or 
"iliir  jiro/H  r  ojlin  r  of  llii  ConrI  ir/iirli  iiinili  lln 
■<imi,  mil/  iiiii/ir  l/ii.  ■<in/  of  sin-h  C'oiirl,  iiiiis/  In 
priiil Ill-Ill  lo  /III  in-ofiir  oj/lnr  of  lln  Ciiiir/  ri- 
■jiiinil  lo  I'll forn  ilir  "(11111  :  lln  iiroilinliini  of  ^inli 
"I'll  '"  ■<",//''■""'  I  riili  nil  III'  siirli  iirili  r  liariiii/ 
'I'tii  iiiaili  ;  anil  lln  rinintii  snrh  Inxl  iiniilioinil 
I'liiirl  iM  lo  Inki  tiirh  xli  jis  in  lln  niaiii  r  ns  mail  In 
f.ijiii.iili  for  iii/'orriiii/  iiirli  onli  r  in  lln  tnini 
imiimr  as  if  il  in  ri  lln  orihr  of  lln  dunrl  ni- 
iiimini  lln  sanii . " 

Tim  |)liiiiitiH'  liiiving  coiiiiiuMiceil  procoediiijis 
iL'ainst  tliu  (k'fi:ii(liiiit  uoiiipaiiy,  iiiidei  tliu  Aut 
lif  ilii!  I'roviiiL'i;  of  Nova  Suotiii  relating  to  tin.' 
wvicc  of  ])|-o(;esK  on  uoiii|)aiiics  oul  of  the  Pro- 
vince, olitainud  juilgiiioul  and  issiUMl  oxciMilion 
iiiiilor  wliicli  thu  Sheriff  levied  ui)oii  eertaiii 
limiieily  of  the  defendant  witliin  the  I'idvinee. 

Ill' ilcfeiidant  company,  which  was  ineoipoiat- 
'I  iindei'  an  Act  of  tlie  iJoniinion  Legi.shiture, 
imlliail  it.s  liead  ofliue  at  Montreal,  in  the  I'ro- 
viiiiu  of  (,)neliee,  having  heeonie  insolvent,  was 
ilii-oil  in  li(|nidation,  and  an  order  was  ohtained 
liy  the  li(|uidator  from  the  Siijierior  Conrt  of 
|)iii'l]i!c  restraining  the  Sheriff  from  prooeeding 
st'll  niider  the  execution.  The  order  wa.s 
■irvcil  after  the  seizure  and  before  the  .sale,  hut 

III.'  Sheriff  proceeded,  notwithstanding,  to  sell. 
NilwL'(|iiontly  the  liijuidator  interposed  in  the 
■nil  lii'Dtight  liy  the  plaintiff  again.st  the  defend- 
ciiiiipany,  and  ohtained  a  rule  to  have  the 
iM-iulion  and  all  proceedings  iindei'  it  set  aside. 
Fn'iii  the  time  of  the  i.ssue  of  the  execution, 
«itli  the  li(|uidator's  knowledge,  down  to  the 
i|||ilii.:ition  for  the  rule,  two  months  had  elaj)sed, 

'ii'ing  which  time  several  steps  had  been  taken. 

II'I'I,  that  the  (Juebec  Court  had  no  i)o\sei'  to 

•iifiiice  a  restraining  order  to  stay  proceedings 

■II  the  Courts  of  this  Trovince,  hut  that  j)ro- 

wilings   for    that    jmrpose   shouhl    have    been 

-iki^ii  here. 

Tin.  Halifax  liankimj  Co.  v.  Tin  Dominion 

Salrai/i:  tt-  IVrtvMwi  Co.,  (i  K.  &  C,  ;«U  ; 

tJC.  L.  T.,  4»(». 

"*H'i,  c.  23,  88.  IM)  102 

-liiitiue  of  application  to  wind  up  an  insolvent 
iMkiiiulur  the  above  Act  by  publication  in  the 
fi'iw/a  (,'a-MI,.  and  h'oyal  (,'iKillt  of  the  I'ro- 
^ii«'::uiil  in  two  Halifax  and  two  Liverpool 
i^Ki's,  held  sullicieut. 


//'/'/,  that  .sees.  !»!!  !()•_'  inclnsivedid  not  ajiply 
to  a  cast'  where  the  proceedings  weie  to  wind  up 
ail  iiicorporalcd  liaiik  deciaied  insolvent  under 
the  Act  of  l,S7.">;  and  that  the  appoinlmeiit  of  ii 
li(|iiidator  rested  wholly  with  the  Court. 
I  h'l  lln   /lank  of  Lin  rjnml,  )i  H.  k(\.,  .'i.'tl. 


1HS2,  c.  m,  s.  :{ 


S"  iss«,  c.  as,  8.  22. 


tSHIJ,  «•.  12,  s.  22N    (I'listoms  Act)  - 

V<  KKVKME,  -■ 

IHS:{,  c. !.'»,  8.  72    ( Inland  Kevviiiiv  Act) 

V'  KKVKME,  -' 

1SS«,  c.  4«,  8.  »  (f.  It.  S.  €.,  c.  IIS,  8.  »a 
"  A'o  orili  r,  ronrirliuii  or  vllnr  /iron  nliini  nhall 
III  iiiinslnil  or  ■■«  I  asidi-,  anil  nu  ilifi  inlani  shall 
III  ilisrliari/iil  Inj  nason  ofani/  ohjirlion  llial  I'ri- 
ili  nn  has  iiol  Im.u  i/iivu  ofaiirorlamaliunor  onlir 
of  Ihi-  <lonrnor-(hni:ral  in  Gonnril,  hul  such 
liroi'lamalion  or  orih.r  of  lln  (lonruor-iltwralin 
Coiinril  shall  hi  ■jnilirialli/  nolinil." 

Under  this  section  the  Court  is  liound  to  hold, 
wilhoiil  any  jiroof  whatever,  that  the  (Canada 
Ti^mperance  Act  is  in  force  in  any  County  in 
which  it  has  been  pioelaiined  to  be  in  force, 
exactly  as  the  Court  is  Ixiund  to  notice  any 
general  Statute,  that  it  is  the  hiw  of  the  land,  if 
so  declared.  Since  this  Act,  it  is  unnecessary  to 
alh'ge  in  the  sninmons  or  information  that  the 
Canada  Temperance  Act  is  in  force. 
(Jntin  V.  Salli.r,  '20  N.  S.  K.,  (>S  K.  \  (1.),  -JOG. 

KKVINEi)    STATUTES   OF    CANADA. 

(Came  into  force  March  1st,  ISS7.) 
C.  1(>,  8.  «- 


('.  3S,  8. ;»;{ 


V"  1S74,  C.  9,  8.  10. 


■V' .  ISSI,  c.  25,  8.  109. 


C.  l;t,  88.  21  and  20 

Si.i  isso,  c.  2S,  8s.  22  and  21. 


C.  71,  88.  't'i  and/iO 

C.  9.5- 

€.  95,  8.  20  - 


S,'.c  t'EUTIUKAKI,  ■«) 
.SV<  REVENUE. 

Slc  1868,  c.  60,  8.  23. 


STATUTES,  IMl'lilllAL 

STATUTES,  IMPKKIAL. 


i:i:{(i 


Vm  iSil,  f.  1.1. 


( .  tm 


\  .  ISIH,  i;  1«. 


KiikIIsIi  Slaliidvs    How  liir  in  lurif  lin-r 

Till!  rcvi'iiiii'  lii«s  ot   Miigliuiil  .iif  iiiii    ijipli 
I'iiMf  liufc  cxft'iil  ill  sd  I'lir  iis  our  Lf>,'is|i(tiiic  h,,. 


.  ., . .  .   _... ..,.,■•   x.m     f't'i'ii  lit  to  iidiipt  ilu'ir  iinivisioiis. 

Xm, '//../.  I'AXAIIA  TK.M'KlANrH  ACT.       ,,,,       ,    ,     ',     ,,    '.  i /.  i 


(.  US,  s.  I'i 

i:.  I'id,  sN.  lO  and  VI 

{.  12»- 
('.  101,  s.  I  - 

1'.  Ui'2,  s.  ;ti 

C.  l(>i,.s.  i 

('.  Il»i,ss.  H.l  and  SO 

I'.  !«."»,  s.'i»- 

i;.  171,  s.  (W 

(!.  114,  s.  201 

C.  Ill,  s.  2.-10. 


ii'diyiii/ril  iiN  ill  fitri'ti  lit.'i'i:,  I'xci'ptiiifi  sii.li  |Mri 
,i.s  lire  i)l)vi<m.sly  iiicoiisifslfiit  witii  llif  liicnin 
Sii.  1SU}>,  C.  I'i,  S.   II.    .stiiiioi's  i)f  the  cDiiiitiy  ;  wiiilc  on  tlu'nilid  li.uid 
iKilU'  of  tlir  Statiitu  Law  will  ln!  I'CM'iivcil  i'\ii|]| 
MlK'li  parl.s  as  air  u!iriiiii-<h/  iijijillriihh  mid  invu. 

s.<  lSIl,f..i,s.,W.j  «'"•.'/• 

I       I'i  r   llallilmrlnii,  ('.   J.    -"  l'',vciy  yiMi' slidiiM 
<uu»   .•   »'i    I  i'i"'"Ier  tli'j  Coiirts  iiiori!  uaiilious  in  llic  iidcipiliiii 

r\tl      |>nZ,    t»     4.1.     '  r    t  .1,1  1  ■  1  ■ 

<ii  laws  thai   have  never  heeii   |iii'Viiiiis|y  miiu 

,  (liieeil  into  tlie  eoliiiiy,  for  piiiilent  .linlj^issliuiili 

i  I'eineiiilier  that  it  is  the  pniviaee  of  the  Cimmi 
.S-. .   IMMI,  V.  'i«,  S.  .W.    ^„  ^\^.^.\.^y^.  ^^.l,,^,   \^  i),,,  \.^y;^  .„„]  ,,f  ,|n.  i^^..|,|., 

ture  to  cleeide  what  it  shall  lie." 

Ullitirki    V.   l>irkst)ii  1 1  III.,  •\A\m-^,'l>'~ 


S, .    1S(»»,  C.  '2<»,  S.  II. 


I'i  r  llitehie,  .1,    -  "  If  this  caution  was  laif- 

sary   forty  years  aj^o,  there   is    niiieli  iiicue  in 

cessity    for    eaillion    now,    in   view   of  the  fmi 

tliiit,  «inee    then,    very  many    .\els   have  linn 

passed    rej^iilatiny   the   praetiee    and  proeiiliiii 

I.......         .i<        •»      "f  this  t'oui't,  and   the  removal  of  eaiiscs  finii; 

.^"    IM)!K  C.  ii,  S.  •>.  I  .    ,     .  ,  ,,      ,„.  ■       ,• 

inferior    Courts.  I  he    i|Uestioii    lii   this  ct.-i 

'was  whether,  l.'{  (leo.   '_',  e.   IS,  was  in  fma  in 
S..  1S«W,  f.  21,  s.  110.    "•'«  l''"vii>i;f.  ,^,^^^,^^  ^,  /.^^^,,,^. 

•JoN.  s.  II.,  (s  K.  kv,.),  p.  :;,■,: 


S, ,   1«0»,  f.  10,  s.  20. 

>>  I  1800,  c.  :(0,  M.  I.I. 


/'(/•  I'diss,  .).  "The  operation  of  an  I'lli.iilhli 
Statute  may  he  eonlined,  I  take  il,  williiii 
!  various  lionnds  hy  the  eireunistanees  ami  silii.r 
tionof  the  eolony  to  which  it  has  lieeii  hiiiii;;iil: 
Imt  it  can  never,  a.s  it  a|ipears  to  inc,  hicniin  . 
Statute  of  j;reater  elTeel  and  more  eiilariiei!  i"ii 
■S'm  ISOO,  C.  -I,  S.  110.  striiction  than  was  given  to  it  in  the  iiittiili" 
of  tliose  hy  whom  it  was  passed." 

Fminaii  d  al.   v.  Murinii,  '1  'I'lioiii.,  p.  .')V.' 


V-  isoo,  c.  il,  s.  n». 


1'.  Kl,  ss.  2.->0  and  'im 


17  .lolin,  1.  :{0    (.>la;;na  Ciiarlni 

■'.!//    iiirri'lmiils.    if    lliiij    in  fi     mil    iii«ii"i\ 


Si,  .'trdlt.  S.,(\.S.i,c.  17l,s!s.00and;  i>i-"i'ii>"<''  '"/"'•-•.  >/'"'/  /""■-  Unir  snj 


Si..  ISOO,  c.  ;{1,  s.  10. 


■-■■   «■     m..     r^.y    y..    -»-     ,    «.   -     "   -   "   7 ---,-     |  - 

IIIII  Stirr    ritfttftdfs.  fit    nth  r    inul    tfrfnU't.  lit  ij"  '""'I 

STATITKS,  niTKItlAL,  11  and  12  Vie,  c.  78.   ''"''V/ '"  ""■  '•'"'<"  ""  '"•"  '"J  '""•' '"  ''•''  "'■"" 

In  lull/ illlll,  sill  irilllnil/.  iltnj  il'll  hills,  hil  til'  "'''j 

iniil    ni/lilfiil  ruslniiis.  i  .n-iiit  in    tiiiu'  nf  ""'■ 
Anil  if  lliiij  III'  iif  II   liiliil  innhiliij  "•'()'  K;/""'''! 
((.V,  iniil,  lir  I'liiniil  ill  iiiir  rinlin  nt  tin  hvijiw"'}\ 
iifthr  n'lir.  Illi-ij  slmll  hr  iiUni'luil  lijillfiiilt  ll'''~ 
III'  hiiilij.    Ill-  iiiiiiils.  iiiilil  it.  Ill'  kiiiiii'ii  III  "■' 
Sii  1880,  C.  10,  S.  0.    ,;,^^.    rhirf  .liislii-i'.  hiiir  iiiir  mi'irhiiiits  I'I 

lriiiti:il  thi'fi    ill  till'  land  iiuikinij  ifnr  i(;;'"'''| 
«s,  niid  if  our  nti  irhiuUx  In:  null  inUnikiltli'i- 
Sti,  1809,  C.  20,  8.  132.    theirs  shall  be  likcioisi;  with  us." 


C.  178,8.48- 
C.  178,  8.  02 
C.  185,  8.  JJ- 


I. {.'J? 


STATUTES,  IMI'KltlAL. 


I.'WS 


/A/'/,    til, It    ,1     VOM'I     MJ/llI      luflllC     Will'     ll\     tllC  killll.         \\'(       IMIllMll      ,ll|ll|ll      till'     Sllll.     Ill     \\'r.-.|lll. 

(rillcciiii  lit   ('iisliiiMN  at    ll!ilila\   ciiMiinl    111'  ]■!■  anil  uivi' il    I  fni'lliii'  cxliii.siim  !  Iiaii  it    in  rivril 

l.iiiH'il  aftfi'  llu:  loiiiiiH'iiriiiii'iii   lit'  war  as  ciH'  ill  llii'  laiiil  nf  lis  iii'iu;iii, 

niy's   |»i'ii|H'il  y.  'I'ln'  jiiilLiiiiriil  in   waste  ilivulviil,  al   t  lic  ilci:- 

•/7h    />.'/'/.  Sli'wai'l,  ;i(l|.  ,i,,„  ,,,'  ,1,,,  ,l,.|',.||,l;„ii,  a   pai'litinM  nf  Ihr  l.iiuls, 

■'>'"   I'ld/K    UK  ''ii'.  lii'I'l 'II  ('1)1111111111. 

Fntiiinii  iJ  nl.   v.  .1/i;;'/(j/(,  "J  I'lioiii.,  ."{Mi. 
Till' Ciiiwii  raniKit   ^lalil  a  f,'uiR'i'iil  llMlii'i'y,  ii 

yraiil  to  siiiiiiiii't  that  iniiNt  lie  as  iilil  as  the  rciLtii  .,_   „,        „          ._       .,.    .    .       ...i  ..  ui  ..  i,., 

...        .,       ,,i      .      ,         ,,      ,  'iJ  KUw. ;{,  i.  II    (Statute  oltli«Sta|)lel 

lit  lliiii'V -,  ami  till  rcliii'c  licyiiiHl  U'''al  iiu'iiiiir\',  ,                .                      ,                             i    ni 

,        ',              ,,                   ,    ;              '^ ,         ,     ,/,  III  I'iisi' lit   w.ir,  iiiiiiliiinl  ■.ll'iiii'^i'is  sliiill  havi' 

till' liy  .Mairiiii  (  liiirta,  iiiiil  llm   sticnnil  ami  tliiiil  .          ,.,      .              ,               ,             ,            .i     .i 

',,.,.                    ,  tn'i'     lllicl'ty    111    ilupiil't    till;    I'l'iillii     Willi    tlli'll' 

1  liai'li'i'K  111  IKiirv  .{,  lilt'  Kill'' IS  I'xpi'i'ssly  ni'L'-  ,    ,       , 
,    ,    ,  .              ,  .       r      ,                                -^  '        ;  giiiiils  h'l'uly. 

I'lllllUll   tl'OIII    lllllkllll'   fl'l'sll   LMUIltS. 


!>,'  iri'sii  ^'1 
.\fijsiii  r  V.  Faiiiiiiiii,  '2  'I'Ihmii.,  !t7. 

\i  KjIw.  !,<•.  IX      KU'sIt) 

(III'  tlial    rc'i'iivi'i'ctli  ik'lit   luiiy  sue  ('xcciitiini 

''.V,'"  II  JKI'KI"  Of  '/"ji'}      - 

Tliis  .\ft,  wliioli  jinvv  tlu'  writ  nf  rl'.',i,'it  in  liii' 
irnlitni,  iliil  lint  ciiiict  thai  a  jllilj^liiciit ,  /n  r  m, 
slimilil  altiU'll  In,  nr,  ill  nllicr  Wnlils,  lie  il  liull 
ii|iiiii  till'  I'ciil  (.'Slate  of  till'  ilclitiir.  'I'lic  .SiiUnti 
:^;ivi'  till!  cii'ililnr  :ui  n|ilinii  hy  wliiili,  if  lie 
i'.\('r('isi;(l  it,   III'  iiii,i,'lit  nlitaiii  a  lien. 

TIlU    I'i'OV.     Act     nf    ,S'J    (k'O.    "J,    I'.     I."l,    J,'ilV('   n 

siiiiiliir  ii|itiiiii  In  the  Nnva  Suoliiiii  cn.'ilitdr. 
This  I'liiiliiiiU'il  In  lie  till'  law  llfic  fnl'  liinl'i'  than 
tliii  f  i|iiarleis  of  a  ('ciiliiry  until  4  \'ic.  c.  I!l 
liruviili'il  thiit  I'cyisliy  nf  the  eci  titii'iilc  nf  ii 
|iiilL,'iii('nl  shniilil  colistillllc  ii  lien  ii|i(in  tiic  itclit- 
'ir'.-i  liiliils.  'riil'niiiilioiil  this  .'stilt  nil'  the  Icj^islii- 
live  intention  to  make  the  rej^isli  reil  jinlL.'ineiit 
III  iiK'iiinlii'aiiet!  similar  to  a  iiiiiit  >{ii^e  is  appart  lit . 
Cdhliri  II  1,1  III.  V.    Kilisiiinii  1 1  III..,  .lames,  .'{U.S. 

i:t  K(in .  1 ,  c. i'i    (Stat. »!  U isliii.  '.>, c. i'lj 

■■  will  fills,  tii'ii  nr  iimrr  tin  Ih'IiI,  iniiiil.  liirj' 
liiiiil.  iirihliiiiij,  iiriitlnrsiirli  lliiin.i  in  riiiiiiiiini. 
"■Iiii'iin.  iiniii  Iniiiirilli  liix  sin  rul.  "//</  sunn  uf 
ihi  III  ill)  inisli-  iiijiiinsl  llir  miiuls  nf  (In  utlnr, 
'III  III  (inn  11011.1  lir  III/  li-ril  nf  n-iisli-." 

■'  ir/i'H  It  isriniic  In .jiiiliinnnl,  Un  ili fiiiilnnl 
aliiill  rlinnsr  litlni'  In  liiki  his  /inrt,  in  ii  jiliii'r 
I'lHnin  hi.i  a  Shfri.lY.  and  in.i  tlir  rim',  nnl/t.  mid 

"ssiiiinilrilt  n.f  his  liriilhlinrs.  sii-nrii  iind  Iriiil 
'ill'  Un  siiiiir  illlrnl,  nr  ilsr  hi  slinll  ifriilil  In  tnk'i' 
iiiilliiini  I'mni  hinrij'nrl.h,  in  lln  sunn  n-nml,  l.iirf- 
liiiiil.  nr  siirh  nllii  r  lint  ns  his  inirlmrs  n'ill 
iiiki  ;  mill  i.f  hi  dn  i-lmnsi'  In  lukr  his  inirt  in  o 
liliifr  virtiiiii,  thr  iitirt  inistrd,  shull  /ii  iissiiiiiid 
'"  hint  I'nr  his  inirt  ns  it  n-ns  lii/nri  hr  rniiunillid. 
lln:  wiistr." 

All  iii;tii)ii  of  wasle  will  mil  lie  exeept  for  that 
"liiuh  is  (lone  upon  tin;  land,  .-si nee  the  teiiiint 
'■"ulil  never  he  supposed  eii|)al)le  of  withstanding 
wliiil  is  done  oil  it. 

Tile  words  '■'■  olhi  r  snih  Ihiwit,''  hiii/ii^  inmii, 
'■•miiut  iuuhule  mills  whiuharuuf  a  very  diirecoiit 


'I'hi   Diiri,  Stiwiirl.  :M. 
>      I'IMZK,  1!K 

'i'S  Kdtv.  :t,  «■.  l;{,  aiiO  H  llciiry  0,  <-.  2t) 

\Vliieli};ave aliens  light  In  ii  jury  ih  nmlii/'ih 
'  lini/iiiii ,  and  the  oilier  Stiiliites  with  lliiil  olijeel 
iiie  not  in  force  in  this  I'loviiice. 
I  V"""  V.  Ilnnlilh/  III.,  I  Old.,  !•-'«. 

'i  lien.  (,(-.  i  - 

I'aiacled,    "  Ihnl   ii'hi mis   iiiinii   ri  I'dirt  fninid 

J  hifnri-  11111.1  ■liislii'i  ill  iissi::i'  nf  imrrl  dissiisin. 

i  nmrt   il'iinn  sinr  nr  niifl  nlln  r  miinn    H'linli  ri  r. 

i  ///(   /inrliis  III  I'nrr  this  linn   Iniri    In  in  iiiljniirin  d 

iijinii  tl,'[}}riil/il  in  lull',  iijinn  Ihr  ninlli  r  sn  Inn  lid . 

It  i.s  nrdiiinid,  II  nil.  I  sliililisln  d .  llinl  if  lln  n  rdirl 

jiiin.s  iiiininst  tin  iilninti.lf.  lln  jilninti.ll  sinill  ""' 

'/(    nnn-siiit.^' 

■       I'icfore  this  .Statute,  the  pliiintilV  iiii.L!iil  liecnme 

null-suit  even  iifter  verdict  against  liiiu. 

ilrniil  V.  /'mill 'inn  Ins.  Co.,  I  T'hniii., 

(1st  Kd  ),  l(»:  CJiid  I'M),  I--'. 

S  llni.  4i,  c.  14( 

Recites   •■  Ihiil  Un    In  nils  nnd.  liniunnls  nf 

inn  III/  nf  till  Kiin.l's  liii/r  liiiijilr  In  sii.Vid 
inin  till  Kiiiij's  Innids  ii/inii  sin'li  iiniinsl" 
Ii.  r.  of  eschcators;,  ■•</)•  lit  In  fnrni  Inj  Ihi 
(Jlnnirvllnr  nr  7'ri  nsnri  r  In  I'nrisiirh  iii'jiiisis  In 
ritnrnid.  in  thr  Vhinirrrn  ;"  nuA  to  remedy  tlii.'^, 
it  provides  "Ihiit  im  Innds  nnr  li  innnnls  sii.-jid 
intn  Ihi  Kini/'s  hnnds.  ii/inii  iin/insl  Infnri  is- 
rlit'iilnrs  nr  mnnnissininrs.  hr  in  nnjiirisi  lit  or 
ijriintid  In  firm  In.i  lln  I'linnnllnr  nr  Triiisiiri  r 
nnlil  Ihr  siinir  iiniiirsls  hi  fiilh.i  rrlnrind  inln 
tin  <  'hmirrri/  nr  h'.irlniiin  r  ;  hut  nil  snrh  hinds 
nnd.  trnrnnnts  slnill  rntirrh.i  nnd.  rinitinnnllii 
riiiinin  in  Ihr  l\  im.fs  Innids  until  Ihi  snid,  in- 
i/ili.sts   hr    rrturnril.  illlil   hij  ii    lUnnth    iiftir  Ihr 

.snid  rrlnrn,  inilr.ss  thr  fnirlii  iii/i/rirnid  jirn.fi'i  r 

tn  Irnrrrsr  till  iiniiiisl  in  Chinirrrii.  mid  n.lVi  rtn 

i  tnkr  thr  liiiids  In  firm  ;  mid.  if  mill  li'ttirs  juiirnt 

lie  mitdr  to  thr  rnntrnri/  thri/ shall  hithnldrn  fnr 

llnnr." 

The  Court   liiis  tinifornily  decided  that   when 
there  is  a   jili;na    iiusscssin    liehl    agaitiat    the 


i;3;{!)  STATUTES,  IMI'ERIAL 

CiDWii,  |Kiiliiiiliirly  iiinltr  inloi'  of  title,  lliiit 
till'  Cinwii  iiiii.-l  Id  iiiM'Hl  ilsfir  with  till'  |)i)M!<i'M- 
r.iciii  ln'l.pic  it  cm  i^iaiit  ;  iiiiil  if  il  gniiit  wliik' 
it  if*  iml  lit'  pii.sHf.s.siiin  lliiil  gi'iiiit  i«  voiil  under 


il  if*  mil  lit'  pii.sHf.s.siiin  llnil  gi 
ihiM  Staliiti'. 

Millir  V.  Lnittn,   I  'riioiii.,  (1st  Kil.),  I-*'- 

(•iiid  Kil.),  It'll 

Snitt  V.  //(•»(?( csi;)*,  •_' 'riiiitii.,  iir> 
H  Hen.  ((,  c.  1»,  uiHl  IH  llt'ii.  <t,  V*  0- 

Tlie  liitltM'  Act  I'l'i'iti's  till'  |)i'iivisiniis  of  S  Hull, 
li.  <'.  Hi,  mill  ^liilc.'.  lliMt 

•    '/'ii    irmli     it.    ilin  rs    //( /'.sn/o     liiid    sili  il   In 

iihhilii  iiii'Is.  f/rinil.s  mill  t'linns.  lii/  /mli  iil ;  /in- 
h  iiilhiij  siirh  ii'irr  mil  riiiniifhi  il  m'  I'lim  iliiil 
III)  till  I'lirmi  r  All.  iliuiiiili  ii-illiiii  Ihi  snini 
iiiisrliii  f ;  mill  Ihiri/nrr  /irnnili  s  Ihnl  im  lilli  rs 
jiiihiit  sliiill  III'  iiiiiili'  III  11111/  iiirsiiii.  iit'mi'i  Imiiln 
iir  II  III  nil  !,/.■<.  liii'iirr  iinjiiL'^iliiiii  iif  llir  h'iiii/'x 
li/li  ill  /III  smiii  III  fiiiniil  ill  I  'limii'i  r;/.  m' in  liis 
l-'.iilii  i/iii  r  riinriiiil.  if  iln  liim/'.s  lith  in  lln 
tiiiiiii-  III  nut  fiiiniil  iif  fimril.  imr  n-illiin  lln 
iiiitiilli  iij'lir  l/ii-  siiiil  riliii'ii.  if  il  III  iiiil  III  him 
iir  III!  Ill  ii'liirli  II  lull  r  II  /  riinrai-  us  In  fm-r  imn- 
/iiuiiil ;  iiliil  if  mil/  li'llrrs  /mli  lit  hr  liliiili-  Inlllr 
riin/rnri/.  Iliiij  sliiill  In-  mill,  ninl  llulili'li  fnl' 
lliilir." 

'I'lif  very  jiiiuviinuos  iiitcmluil  In  1>l'  rciiu'ilii'il 
iitiil  M'llii'sst'il  liy  tliust'  Stiitiili's,  are  llmsi' 
iiiidi'i'  which  tho  MiilijoutM  i)f  tiiis  I'liiviiici;  might 
wt'll  say  Ihoy  lahnruil  if  it  \wtv  held  that  land 
Uiaiited  with  a  eiinditiiiii  that  the  grant  shiinld 
he  vnid  if  the  land  wei'e  nut  settled  on  within  a 
eertain  time,  eoiild  ln'  siilisi'(|in'iitly  granted 
without  ini|iiest  of  oliiee. 

Whiiloik  V.    MiKiiim,  I  Thoni,,  (1st   Kd.),   1."); 

C.'nd  Kd.),  41  ; 
Sri)//  V.  //(»'/()•>()/(, 'i 'rimni.,  ll.'t. 

'Hi  IICII.  <(,  C.  »  - 

(Directed  the  Slu'iitl'  Ik  let  In  hail  all  persons 
ari'esti'd  hy  any  writ,  hail  or  warrant  in  any 
peisiinal  aelion,  and  ujioii  oli'er  of  reasonalile 
siirety  of  snllieieiit  persons  having  within  the 
coniily,  iVe.)  — 

Although  the  Slatule  thus  ohliged  the  Sherill' 
to  enlaige  those  he  had  arrested  upon  their 
giving  hail  reijuired,  it  still  eonipelled  him  to 
have  the  hodies  at  the  return  of  the  writ. 

4  Anne,  c.  Hi,  hound  the  .SiiuiiH' to  make  an 
a.ssiginneiit  c(f  the  hail-hond  to  the  plaintilt',  hut 
he  was  still  hound  to  have  the  bodies. 

1  R.  S.  e.  i;W,  s.  10  V  II  (N.  .S.),  have  not 
given  the  plaintiff  the  80,'urity  eonlemplated  by 
•_';{  Hen.  (i,  e.  H). 

If  special  hail  is  put  in  and  perfected  in 
Kngland,  the  risk  of  the  continued  solvency 
of  the  sureties  rests  with  the  pluintiff,  and  why 


IMI'ERIAL  i:VK) 

should  it  not  also  rent  with  him  ni  tin  i  ,im' nt 
coninion  liail.  The  inipeiative  \miiiU  nl  ili, 
.Slatule  '_';{  Hen.  (i,  throw  the  respniisilnlily 
upon  the  SheiitV  in  Kngland  ;  hut  iIiom'  wiphIs 
are  not    to  he  found    in  onr  own  .Slatule,  Mini 

■•  ..1  I :....;....  il ; 


e  not  to  he  found  in  iMir  own  .Slatule,  inn 
I'lefore  neither  law  nor  jusliee  throws  il  ii|hi 
in  here. 

iliill,  I  'I'hom.,  cJiid  ivl.).  Is. 


th 

him  lieriv 

.liifksiiii  V.  Gnini 


7  ll(>ii.  V,,  c.  I 

'I'hi:  defendant  (in  replevin)  is  eiililieil  ii. 
damages  for  llu'  unjust  detcnlion,  and  ulini 
the  cause  eomes  to  trial  the  jiny  assess  thi'sf 
damages,  and  they  form  part  of  their  veiiliil. 
(I  Saunders  I!)."),  note  X)  These  rules  aiei|iiiU' 
consistent  with  section  17")  of  'ind  K.  S.,  c.  I.'t4. 
Friittuni  V.  l/m-riiiiiloii  it  ill.,  1  Old.,  p.  .'i."i,S. 

il  llvii.  H,  c.  10    iSliiliitc  ofl'scsi 

Kcistry  of  a  deed  is  not  eiplivalent  to  eiiidl 
nient  under  the  .Statute  of  Uses,  so  as  to  traii^fir 
the  |)ossessioii. 

.S7((//  'I  III.  V.  Chi-'holm,  .lames,  ."fj. 

I'll-  Young,  i'.  .1.  — I  look  upon  the  SiiitiiU', 
•Jl  .lac.  1,  e.  14,  as  peeidiarly  suited  to  our  ciiii- 
ditioii  and  circuinslances,  anil  to  have  the  .siuiie 
title  to  l)e  considered  a  part  of  our  law,  ami  cm 
the  same  principle,  on  which  "v  luiii  nliniij' 
11  rill/ III -.CI  I  the  Statute  of  Uses,  or  the  .Slalilti' 
ill  iloni'<.  till  the  recent  enactments  aholisjiiii^- 
estates  tail. 

Smi/tli  v.  MiDmiiiIiI  'I  III.,  I  OhI.,  \h  '.'Tit. 

•21  Hen.  H,  c.  I<(    (Statute  of  Kiirolnu'iitsi 

/'(/•  ,Iames,  J.— We  have  adopted  in  tiii^ 
rrovinee  the  modernized  deed  of  feotlimiit, 
hut  without  that  which  alone  makes  it  a  finll- 
iiieiit,  the  livery  of  seisin,  inilor.sed  on  tia'  oM 
charter,  and  provided  for  by  the  attormmiil  in 
the  more  recent  deed.  It  is  in  form  a  deed  ol 
feoffment,  but  without  livery  of  seisin,  a  ilnd 
of  bargain  and  sale  without  (neces.sarily)  any 
eonsideration,  and  without  the  enrolment  in  tin 
Court  of  Chancery,  provided  for  in  '21  Hen.  S,  c. 
Hi,  a  deed  of  lease  and  relea.se,  without  tin 
lease,  and  a  deed  of  conlirmation  without  iiny 
jirevious  estate  to  be  conlirined,  and  a  deuil  nl 
grant  without  there  being  necessarily  any  incm 
poreal  hereditaments  to  convey. 

It  has  never  been  held  that  the  .-lUautcs 
of  Uses  and  Knrolments  art;  in  force  in  tiii* 
I'rovince,  and  under  the  principles  atlirnied 
in  Unkirkt  v.  Dirkxoii,  James,  '2Hl,  it  niiiy 
almost  be  affirmed  that  they  are  not,  imis- 
much  as  our  Legislature  has  not  seen  fit  to 
re-enact  them,  or  to  provide  the  facilities  fm 
enrolment  witlnnit  which  they  would  he  iiioptr 
alive.     In  New  Brunswick  the  Registry  Act  u 


v.m 


STATUTES,  IMPKIU A  li. 


1:H2 


lii'ld  lo  supply  that  (Iclicicncy.  '"'•   ""'•  SiaHilc 
niiiki'M  no  .such  pniviHiiiii. 

Till'  I'linvi'yiinrc  liy  lively  of  seisin  reeeiveil  its 
iliMlli  Mow  from  the  Slallite  of  Uses,  'JT  Hen. 
S  c.  I(».  Its  sutlieionciy  as  a  eonveyuniH'  without 
;i  (Ict'il  was  taken  away  liy  tlie  Statnle  of  I'lauds, 
•.'!l  Car.  '2,  e.  .'{.  Tin-  wlioie  lioeliine  was  vir- 
liially  exploileil  long,  ))rnlialily  ii  eeiilnry.  I>e- 
tdic  the  settlement  of  this  I'rovinee. 

/>V  ;■/•//  V.  AV /•(•//,  4  11.  X'  <;.,  (id. 

:M  Hen.  H,  o.  I 

I  lie  writ  i/i  jiiliii/ 1(1111  J'liiiiiiilii  in  \iy  'M  lien, 
S.  I'.  I  and  ,'i'J  Ken.  S,  e.  ,S'J,  made  applieulile  lo 
ilii'iasesof  joint-tenantsand  tenants  in  common. 

1st  II.  .S.  (N.  S.),  e.  l.'t!»,  s.  I,  ('na.ite.l  that 
■'.^1//  iiirsunn  liiililiiiti  Imiils  us  juinl-lciidntK, 
iii-iHii'liirrs,  iif  liHinitu  ill  riiiiiiiuiii.  iiiiiij  111- 
iiiiiiiiilli'it  to  lUi'iili-  t/ir  siiiiK  ,  I  illiir  III/  iffil  III' 
l«lfliti(ill  lit  llir  I'lililliliiii  liiir,  nr  ill  llir  tilii II liir 
lifiii'iiliil  ill  tills  rliiijitrr." 

.'ilii  K.  .S.  e.   I'J*.',  s.   I  is  the  .same. 

//'/'/,  that  the  Leyislalme  in  i)assiny  Isl  K..S. 
I'.  I.'i!),  s.  I,  intenileil,  in  piovidinganew  remedy, 
t(i  leave  the  former  remedy  as  it  stood,  ami 
•  liil  not  mean  to  I'estore  \\u:  writ  of  partition  to 
Its  old  position  hefore  the  Stalnte  of  Henry. 

Douiii    V.  .l/<'A'(H«y,  .lainits,  ;1'JH  ; 
Li  Cain  V.  Ilosti  riiiiui,  '1  X.  .S.  ]).,  4l;{. 

(.\tier  reciting  the  great  evils  whiili  arise  from 
liuyini,'of  titles  and  [jietended  >ighls  of  per.sons 
ii'it  liein<j  in  posse.ssion,  prohiliited  the  sale  of 
tiiy  lanils  of  which  the  seller  hail  not  lieen  in 
pcisMssion  for  one  year  lii'fore  the  salt's,  and 
|iwiiislied  Ixith  the  hnyer  and  stdler  liy  a  foifei- 
iiiif  of  the  whole  value  of  the  lands  .so  hought 
mil  sold)  — 

Until  seller  and  huyer  forfeited  tiie  value  of 
till'  iiiiid  to  the  King. 

Will  1 1  (Ilk  v.  .'i/orrisiiii,  I  \.  ,S.  I).,  p.  .•{;{7. 

Ilf/il,  that  the  Crown  is  not  exempt  from  the 
"|ii'i';itiiiii  of  the  principle  to  uiilmld  whiuh  this 
"'talule  was  pa.s.sed.  It  eannol  lie  presumed 
llmt  the  King  intended  to  lii>  at  lilierty  to  do 
ilit^  inisehief  he  eondennied  in  thi^  Statute. 

Sroll  V.  //i  mil  isuii,  '2  'V\\i>\u.,  115. 


W  Hen.  S,  f.  ill 


V"  :J1  IIKJf.  s, «'.  1. 


does,  in  as  full  and  ample  a  manner  as  tliey  had 
lieen  pos.sessed  for  I  lie   live  piereding  years) 

Si  nihil ,  thai  a  seizure  of  the  lands  liy  I  he 
Crown  was  still  neii'ssary,  and  that  theelliil  of 
the  Act,  ,'l.'l  Hen.  S,  was  only  to  aMiid  llie  neres- 
sily  of  an  oHii'e. 

Siiili  v.  //i  lull  i-^iiii.  2  'i'Uiiiw.,  Il.'i. 


n  ih'ii.  s.  <•.  :{i» 

l'"naits,  "  '/'liiit  nil  iililiifiiliniis  mill  sinriiil- 
lii's  ii-ln'rli  sliiill  hr  iiitiili  fiiriiiHi  riiiisr  iir rn usi s 
liiiirhiliij  III'  ill  iiiijiirlsi'  ri'iiri  fiilmi  tin  h'iiii/s 
Must  lliiiinl  Miijisli/  nr  his  hiirs.  or  in  his  nr 

tliiir  IISi\  rniiiiiinililij.  nr  liihnnf.  slinll  In  liiiiili 
tn  His  llii/hiiiss  mill  III  his  hi  irs  l\  iinjs  in  his 
nr  Illiir  liiiiiii-nr  iniiins  In/  Ihisr  imnls  Itnniiiin 
Itriji.  mill  In  limir  nllii  r  /iirsini  nr  III  rsnils  tn 
his  iisi',  mill  tn  III'  jiiliil  tn  1/is  Iliijliiii  ss  lii/thi  si 
irnrils.  snip,  villi  iii  Dniiiilin  Itiiji  liiind.  nl 
r.i-iriUnriliils  silis,  U'ilh  nthi  r  irnnls  llsiil  iiiiil 
iirriistniiii'il  in  rniiiiunii  nliliiiiiliniis ;  mill  Ihnl 
nil  sitrli  nlilii/iitiniis  mill  Sjiirinitiis  sn  In  In- 
iiiiiili-,  shnll  III-  i/niiil  mill  iffii-liiul  ill  thi  Inir  in 
nil  /iiirjinsis  mill  iiili'iils  mill  shnll  In-  nf  Ihi  sinni 
lliltliri',  k'illil.  ijlliiliti/,  j'nrrr  mill  rjl'irl.  In  nil 
illtrllls  mill  iniriinsrs,  iis  thi  irritiiii/s  nliliijnlnril 
tnkiii  mid  iirklinii'li'dijiil  nrrnrdiiii/  In  llii 
Slittiltr  nf  till-  iStiljilr  ill  W'lSliiiiiisti  r,  hint,  nl 
mil/  liiiu-  lii'fnri-  the  niiikiinj  nf  Ihnl  Art,  Ini  u 
titkiii,  IISI  d,  iM'irrisi'it,  mid  i-.ririili  d  ni/iiinst  mni 
hijl  jiirsniis." 

The  .Statute  lilt  H.  S,  c.  .S!l,  and  l;{  Kli/.,  e.  4, 
which  gave  the  Crown  a  lien  upon  the  leal 
estate  of  certain  pulilic  ollicers  as  a  security  for 
tile  fulfilment  of  their  Imnds  are  not  in  furce  in 
this  Province.  'I'lie  levenue  laws  of  Kiiglandare 
not  aiiplicahle  luue  except  in  so  far  as  our  Legis- 
lature has  seiui  til  lo  adopt  their  provisions. 

The  whole  of  the  Knglish  ( 'oinmoii  Law  will  he 
recognized  as  in  force  here,  excepting  siuli  parts 
as  are  oliviously  inconsistent  with  the  (tiicum- 
stances  of  the  country  ;  while  on  the  other  hand 
none  of  the  Statute  Law  will  he  received  exccipt 
such  parts  as  are  nlirioiislij  np/iliiidili  ami  iiiri.<- 
Kit  ;■(/. 

'riii^  increasing  lapse  of  time  since  the  set  I  le- 
nient of  the  Province  should  render  the  Court 
more  eautiouH  in  recognizing  ICnglish  .Statutes 
which  have  not  been  previously  inliodiiced. 

Uliiurki    V.  lUiksuii  it  at.,  dames,  I'.ST. 


:<:i  llni.  S,  c.  20 

(IViliires  that  forfeited  lands  shall  lie  in  the 
"luid  and  real  posst!ssioii  of  the  King  wilhoiil 
'I'ltii-c,  hut  does   not  add,   as   I    Kdw.   (I,  c.  14, 


M  lil'll.  H,  1-.  :<»,  s.  -»4 

Ihld.,  ill  an  action  on  a  lioiid  to  the  (,)neen 
given  on  t.-iking  out  a  n rlinriiri  that  the  (,hieen 
was  entitled  to  costs  under  this  .Sluiiitf. 

Qmm  V.  (Uiitir,  I  \i.  &  (i.,  ;t()7. 


i:un 


STATHTKS,  IMPKRTAL. 


m[ 


m  lion,  s,  v.  «     (AKUiiisl  Ifsiirj)  - 

l:»  KHz.,  «'.  S    '2i  .llH'.  1,  «'.  II 
12  I'ar.  2,  V,  l;{    1*2  Anin'.  «'.  I« 
And '211(1 1(.  S.,  (>.  V2,  H.  I. 


I  Edn.  »,  c.  II 


sm  :v.\  ||«>n.  H,  r.  'iCI. 


i:t  v.m. «-.  I 

h'.ii.iri.-.  lli.il    "Fur  ilii    liiliii-    ■i(ciiriti/  (>/  Ihi 
IJiii  I  //"•;  Mnji  v///,  III  r  In  ir^  '""/  -'"''■'  --'"■'.  iiiiniii"' 
siirli  n-<  ^liiil/  liiiri    'li'    i-inif'  '""'  •■li<"':l'  ".''  ''" 
1111,111  !l  iiii'l  Inii^iin    III'  //i  r    IH'iliin  ■"^.  In  f  li'if^ 
mill  ■■<iiri-i  •'^iir<,  '■!  '-  ilii-lm-iil  mi'l  •  iiii''"l<  '''"'  "'' 
liiiiil^,  l(  III  nil  III -^^  I'mlil^,  cniiiniiiilii'ii-'  "ml  liinili- 
liiiiinils  irliii-li  11111/  'I'll iKii I'll'   '"'    lii''>irii-  in  nr 
iHlniiijiinl  liiiimji'/  lln   V'"'"'-'   M<>.'r  "'U'"  ('"nrls 
.;/■  lln    /Crrlmiin  i\  Wnnh  inni  l.inriii,  nr  Ihirli,/ 
<,)'    l.iiiirnxlif,    TrKi-iiirir  III'  lln     ('liiiniln  r,   t'n/- 
I'ti'ir  iif  lln     //iiifi  hiilil    III    'In    <,lii"ii'-   Miijii'lh 
l,f  r  In  iri  nr   ^//l■'•■  <m)»s   '/'rnfiin  r  /or  lln    H'nrx, 
Triiixiinr  0/11111/    Fmi,    Tmrn   or  Casll,    irin  n 
11111/  ijiirrisini  i^  or  xinill  In  l.''  I'l,  Tnii-^iin  r  of  lln 
Ailiniriilli/  or    Xori/,    Triifiiri  r,    I'inlir   Sirri- 
liiri/  ornllnr   /n  r-'oii   iirroniiliilili    '"  '/"    ','"""'- 
Majfli/,  In  r  h'ir^  or  .s/„V(. •<«);•>■,   for  ninj  ojlin  or 
rlinri/i    0/  or  irllliiii  lln    Mini,  Tn  o-^iin  r  or  Hi - 
n  in  r  0/  (till/  "iiDix  0/  iiniiK !/  ini/irixl  or  oiln  rn-i^i 
for  lln    iixi  0/  lln  (Jinni'-^  Afajisl,/,  Inr  Inir-or 
v,/(Vi  ssors  ')/•     ,/'"■  iirori-<io)ii  </    rirliitil  or  /or 
fi,rliliriilioii<,    loillillinjs  or     irorl:-,   or    /nr    0111/ 
nllnr    /rrniuxloiiH    lo    In     iisnl    In    lunj    0/    lln 
ojllrrs  n/  lln     (.hniii'i    Majixlif"    Onhiaiin     iiinl 
Arllll'  ri/,  Armoiiri/,  Wnnlroli' ,  T,  ni-<  ninl  I'ar- 
III Ions  nr  /.'.(•./-.•,  Ciiilonn  r,  Colli  rior,  h'arnn  r  0/ 
Ciiiloiii^  '^iilisiillK,  liiiiioxl"  or  nihi  r  iliilii^  irllhiii 
11111/    I'orl   0/ lln     Hnihil,  Colhrlor   0/   lln    Imlli- 
of  lln   ( 'li  /■;///■  ('"III  i-lor  of  any  xilhilili/  nr  /i/li  1 11, 
l!,n  Irir-l.'ini  ml  0/  Ihi    l!iiriiins  0/  nni/  I'oniili/ 
or  roiiiiln"  (uiiinralili    hi  lln   rinljil  0/  Hn    lix- 
rl„<iiirr,frr  In  III!    Court  0/  Wants  ami  LInrli.-, 
or  lh(  Ihuhij  0/  Lain-asli  r,  Cli  rl:  o/lln   I  lam  in  r, 
iioir  lialh,  or  ant/  linn  In  na/hr  shall  Inin ,  irllliln 
III,'  turn    ii-hllst  In    or  Ihnj  or  "111/ 0/  lln  m  shall 
rrmaiii  arronnlalili ,  shall  /"■  tin    rai/ninil  ami 
salls/ai-tlon  In  Ihi  (,>wi  n's  Mnjisli/,  Inr  Inirs  ami 
siirnssori,  nf  his  or  Ihi  Ir  arnnrai/is  n.t  aiiji  I  Inn 
hi  na/hr.   In  In    lan/nthh  anonlimj  In  lln    lairs 
nf  litis  rialiii,  ailjmliinl  ami    ilili  rmimit    npnii 
ii-is  nr  lltilr  nrroiiitl  (all  his  ilitr  ami  nawtahlc 
ptlilintts  hihn.i  aJIniriil)  Iw  liahli  lo  Ihi   iiai/mi  nl 
therm/,  a.tnl  In'  /ml  "nil  hinl  In  inriilioii  /or  Ihi 
paymntl  of   suih  arnaraijis  or  <l<lils  In   In    sn 
ailjitiliiiil  ami  ill  li  fill  I  mil'  iil>"ii<  "".'/  •""■''  '/''■'"■-'- 
nnr/llii'ili-'i;  Tilhr,  Cnslonnr,  dollnlor.  Far- 
itiir,  Ojlinr  or  ArroiutlattI,  as  is  In/on    ttaiiinl, 
ill  III;  ami  In  as  lariji  uitil  In  m/rial  iiiattin  r  to  all 


iiilitil-  "nil  jiiirfiinn^  as  1/ I  hi  ^iiiin  I'mi^nrii, 
1,'ii-iinr,  Tillir,  Cnslomir,  Farim  r  or  I'olhiU,, 
it/niii  irhoiit  "III/  ■'iiili  arnitrini'  s  nr  il'lil^  ^linll  I" 
,11  oiljinl'/'il  or  ih  I'  riillin  il,  liilil  lln  ilililln  Inninn 
Fir-I  OlJhiror  Ai'i'oiiiitiiiil  sinoil  In, unit  1,1/  n-ril 
iiiij  ohliiialor!/,  hiirliiii  Ihi  ijl'irl  0/ 11  Sliihih  i.j 
Ihi  Sla/,/,  III  III  r  M'lji  <///.  In  r  hi  Irs  or  mi'<<  «mi-s 
for  I  hi  Inn  nn^in  riinj  "ml  j,ai/liliiil  0/  Ihi  •tiim 
ti I'riiirioii  -  or  ili l,t^. 

A  ('(illiHttiii'  lit  Inipiist  anil  K\t'isc  Diiiii's  lilN 

Willlill  till'   ili'Silipl  imi  lit    lilllilii-  ntlirrls   liiillicil 

ill  this  Siiitiiti'. 

//./«/.  imt  ill  fiini'  ill  I  Ili-"  rrnviiiri'. 

I'niinhi    \.    /)ii'liSi,ii,  ,\d\\ws,  •2S',. 

r.i  Kliz.  «'.  5    lAn  A<i  a^alnsl  Kriunliiltnl 

Di'iils,  Gifts,  Alii'iiatioiiH.  iVc) 

Will  rriuiiiMsiniiiiiciit  iHiittiiiki'il  us  fiiimliiiriii. 
if  a  .liiilLif  wiilii'M  tti  fiilliiw  iiiiiiiiti'ly  aiiil  ^tlirlly 
ilii'  Statuti',  ill  instnu'tiiij;  llu'  Juiy,  Un  is  In  iill 
tlii'iii  tliiit  fci^'iicil,  riiviiiDiis  ami  fiiiinliilriii 
iiHsi^'iiiiiriits  iU'i'  viiiil  ill  liiw,  lliiil  lliiiM'  a>sii;n 
llli'llts  arc  sii  til  lie  fiilisiilcii'il  wiiirii  lia\r  liiiii 
ilcvi.siMl  nf  iiiaiii'c,  fiaiiil.  I'liviii  nr  iMiliiisimi,  tu 
ilclay,  liiiiili'i  111-  ilcfiaml  cri'ilitnis  nf  llirir  jiiM 

anil  iiiwfnl  arlimis,  to  llii'  liimlraii f  tlir  iliir 

cninsi'  nf  law  anil  jii.stiii',  ami  tn  tlir  nvcitlmnv 
nf  triif  ami  |ilaiii  ilcalin.U,  tliat  im  ihiIiiht  m 
cnlnr,  nr  fci.!,'n('il  I'liiisiilcfatiiiii  nr  i'\|iri'.-fiii,L'  I'l 

use,  nw  ntliiT  such  limlltr,  will  lllilinlil  lliilll,  it 
iiiailc  with  the  iiforcsaiil  ilcsii^'ii  ;  Iml  lie  will  ini.l. 

that  if  imlccil  the  assi.u'iiiiiciit    lie  iiiiulc  ii| 1 

;,'nnil  cniisiilcialinll,  '""("  ./''/',  f'lr  lintll  .Hi' 
csscnlial,  then  llicy  arc  valiil.  The  i|iicsli.iii  nl 
fad  which  he  iheii  has  In  leave  with  them  Im 
them  alone  In  ascertain,  is  this;  Wiis  tlii- 
assii^miient  nf  a  fi'iyneil,  envinons  ami  framhiliin 
character,  iiiaiU'  with   that    |)lir|inse  ami   iiilnii. 

anil  with  a  cnhiralile  anil  fei<,'iieil  1 siihial : 

(If,  nil  I  he  Clint  rary,  was  il  iiiailc  /«.//r(  //lA  .hmI 
on  a  jiiiml  cniisiilerat  inn  '' 

Tarriitl  v.  ."^iiin/ir,  I  'i'lmni.,  (Isl  ivl.), -'I'; 

(•Jiiil  I'M.).  Ill 

M.  &  Son,  heiiif^  in  insulvi^nt  circiiiiislaiiiT>. 
execiiteil  a  ileeil   of  trust  tor  the   henelit  nf  siuli 

'ereilitors  as  shouM  jnin  in  the  ileeil,  wliinl') 
they  vesteil  all  theireslale  in  a  trustee  willi  |ii" 
visions  thai  llu  trustee  shiiulil  have  a  enniiiii- 
sion  of  live  |)er  cent,  mi  all  moneys,  ami  sln'iil'' 
canyon   the  Imsiness,  if  ileeineil  eNiieilient,  f'" 

I  a  iHuioil  that  nii.nht cxteml  to  three  years,  iNiiu 
so  much  of  the  inoiierly  as  ini>,'lit  Ix-  nerossiiiy 
for  the  purpose  of  repleiiishin.L;  stock  ;  iiml 
that  he  shouiil  sell  such  portions  of  tin'  "■'' 
estate  as  shoulil  be  necessary  to  carry  on  'I" 
hiisiness  ami  pay  laxeH,  etc,  payini;  instalin<'Mi> 
aiiinuiitiiiL  In  forty  cents  in  twenty  innntli^.:'"'' 
tliviilin,!,'  thi^  resiilue  among  all   the  other  iw'li 


i;{4.) 


STATUTES,  IMPERIAL. 


134G 


t(ii>  lit'  tlif  j,'iimtors.  Till'  .luilge,  hefoix'  u  Ihmii 
the  liiMO  WHS  tlicci,  t'diiiicl  as  to  fuft  tliat  llie 
iriiiisCi'i'  WHS  iiitfiicUil  f(ir  tlii'  jiciu'iiil  lifiii'lit  nt'i 
crnlitoi'H  «  itlimit  any  fniiiiliileiit  intfiit  tn  clolVat 
111' iKlay  uri'ititiii's,  ami  that  the  |inp\isiiiii  as  tn 
liinvin;,' on  tlii'  Imsinuss  was  sulisiiliaiy  in  tlic 
Himliiig-iip  cif  tlic  l)ii>iiic'ss  ill  fulliliiii'iii  nf  the 
niisis, 

//■'''/,  tliat  iiiiitt'r  tliis  liiiiliiiu,  wliicli  «as 
jli.-'ljlii'il  liy  till'  tuiiiis  (if  till'  traiislVr,  iIil'  liiis- 
Ii'f  «as  eiititluil  to  till'  gcMjils  iiKliKk'd  in  tliu 
tiansftT, 

iii'iih'dii  V.  /;>//,  ,">  II.  &  (;.,  !t(i. 
l:{  Kllx.  €.  .1,  iimi  Ti  Elix.  c.  4- 

(Tin;  lattLT  Ai-'t  was  niailo  lor  tin;  |i:(iti'('tiiin 
»t  imicliasers.  It  niakes  vciiil,  as  a;,'aiiisl  siilisc- 
liUfiit  ))Ui'ciiiisers  of  the  same  lands,  tfiii'iin'ms, 
nr  iitliei'  liel'eiUtanionts,  all  conveyanrcs,  t'ti,, 
niiiilu  witli  tilt"  inti'iition  of  ilcfeatinu'  liii'in,  or 
o'litaiiiing  a  power  of  lexoiation) — 

Tlif  owiiiT  of  a  liorsf  iiiarlc  a  frauiluk'iit  Kill 
lit  siilf  of  it  to  liis  son,  tin;  ili-fuliilanl,  for  tlio 
|ini[)i)st'  of  protituting  it  from  lliu  (.'laims  of  (.-ii'ili- 
t"is.  Itufciiilaiit  took  ik'livery  of  tliu  liorsu  ami 
iitti'iwaiils  sold  it.  .Sul)sui]iiuntly  to  tliu  con- 
viyainu  to  tlio  dofumlanl,  Imt  lii'fore  tin.'  said 
■li',  the  father  conveyed  the  horse,  by  a  hill  of 
siilu,  to  his  daui.'liter  the  plaintitl',  for  a  delit 
'■'mil  jiili  due  frnni  him  to  said  (ilaintifr.       In  an 

tjiiii  of  trover  liy  the  daughter  against  the  Mon 
I"r  the  alleged  eonversion  of  the  horse, 

ll'lil,  reversing  the  deeisi  m  of  the  County 
(iiiul,  that  although  tiie  til'st  conveyance  was 
tMii.luIently  made  to  defeat  the  rights  of  eredi- 
tMiniuid  was  void  as  against  them,  under  I.')  Hliz. 

•">,  the  grantor  could  not  !in))art  any  title  to 
liiu  iilaiiiliti',  who  could  only  ap]ropriatc  it  to 
t!if  satisfaction  of  her  claim  liy  virtue  of  some 
li-.'il  process,  and   that   the   plaintill'  could  not 

ttia-k  the  con\eyaiice  under  'Si    Hliz.   c.    4,  tus  j 
iiiil  ilid  not  apply  to  personal  property.  ; 

Vmiiig,   (.'.,1.,   and    Desliarres,  .1.,  i/issiiillin/,  ' 
Miidi-i    \.  Muiiii ,  1  H.  &  (i,,  .VJ."). 

!lii'  inmiiion  law  could  have att'orded  creditors 
'■:'*:.  ei|iially  extensive,  if  these  Statutes  liad 
'  't  lieeii  made. 

'''.dihrill  1 1  (i/.   V.  Kiiiiiiiaii  if  (il.,  dames.  .•JDS. 

N  '  ASSI«\MEXT,  IV.  -(ilFT,  4- 
HEED,  -s  .u 

Uac.  1,  c.  I—  I 

lielivery    of   a    liill    of   "osts  as    reipiired   by 
■''iif.  1,  c.  7.  is  not  necessary  in  this  Province, 
Ms  liciiig  recoveralile  as  any  other  debt. 
^•ihjKiriik  il  rt/.v.  Fairhuids,  7  R.  ^i;-  (;.,  ,S<)9. 
44 


'ilJac.  l,f.  2- 

(Tlie  right  of  the  Crown  limited  with  respect 
to  land,  it  lieing  restrained  from  suing  oi'  claim 
ing  by  reason  of  any  tight  oi'  title  accrued  for 
sixty  years  previous  to  that  time)  — 

!l(  ieo.  ;{,  c.  It)  put  the  same  limit  to  the  Crown 
ill  res|)ect  of  any  right  of  title  accruing  sixty 
yiars  before  action  commenced  by  the  Crown. 

Snif    V.   //'(('/i  ;«o/i,  -J 'I'hom.,   115. 

Ill  all  o])inioii  gi\iii  by  Sir  A.  Cockburn,  A. 
<i.,aiid  Sir  K.  I'.ethi'll.S.  (;.,  August,  I.S,')4,  they 
say  that  neither  "Jl  .lac.  1,  c.  •_',  nor  !•  (ieo.  ,S,  c. 
I().  extending  and  amending  that  Act,  ajiplies  to 
I'riiiie  Kdwiinl  Island;  not  tlictiist  because  it 
only  applies  to  lands  which  had  been  enjoyed 
fill  sixty  years  at  the  jiassing  of  the  Act  ;  nor 
the  sei'ond,  liecause  at  the  time  it  was  passed 
I'rince  Mdwaid  Island  was  part  of  the  I'rovinceof 
\o\a  Scotia,  which  had  a  legislative  constitu- 
tion of  its  own  ;  and  the  Act  not  being  extend- 
ed to  the  colonies,  it  would  not  apply  to  Xova 
Scotia  or  I'liiice  Ivlwiml  Island. 

.s'<i   Forsyth's  Constitutional  La\\ ,  p.  l!l. 

'ilJac.  l,c.  14  - 

"  //'/('  ifiii  I'l  r  /III  Kiiiij,  /(/.<  //( if"  or  Siiri'i  sso;'s, 
Km/  xiir/i  from  or  iiin/i  r  n'liom  /In  Kiiiij  I'l'iiniiih, 
mil/  ii/l  o/hir-<  I'lahn'nni  mull  r  /III  lUini  fil/i  ninl' r 
ii-lili'li  /hi  Kiiii,!  r/alim /II,  lin/h  In  i  ii  or  ^litil/  In  oii> 
q/'/io<si.sv/o)i  hy/hi  .i/ian  of /in  ii/ij  i/Kiri,  or  haili 
vol  or  ihall  nol  hnri  /ah  ii  /In  firoji/s  ol'aiii/  /iiinl, 
iti\,  iri/lii'ii  /Ilk  s/inn  of  /iiun/i/  yiurs  Inj'on  anif 
Information  of  iulnisioii  lirowjlit  or  /o  In  lirowjh/, 
/o  rirorir  /hi:  "ami,  /lin/  in  i  ri  ri/  ■mrh  rrtsi  /hi 
i/i/'i  in/riii/  or  ih/'i  inlrni/"  mrti/  pliail  /hi  iiniiral 
i""!!! ,  if' III  or  III' II  ^11 /liiiil:  /it ,  mill  ^Inill  no/  In 
jirisxiil  In  itlidil  xf,i  i-iii'l ij  :  mill  ///«/  in  snrh  ntiis 
/hi  ill  fi  nihin/  or  ill  fi  niliiii/i  shall  ri /fin  /In  jiox- 
.SI  ssion  In  or /In  11  hml  n/  /In  /inn  if  ^mh  infor- 
mn/ion  lyhilii/nl,  nn/il  /hi  /i/lt  In.  trinl,  finiinl  or 
U'ljiiilijiil  fur  tin    h'ini/." 

Prior  to  this  Statute  the  pos.sessioii  of  the 
Crown  was  not  considered  one  of  law  merely, 
for  the  jiurpose  of  a  remedy,  but  was  an  actual 
possession  for  all  purposes. 

Since  this  Statute  and  !)  (ieo.  'A,  c.  Hi,  it 
seems  iiniiossible  to  contend  that  there  may  not 
be  an  adver.se  ])o.s.session  to  the  Crown  in  point 
of  fact,  whatever  may  be  its  construction  in 
point  of  law. 

(Jiiairi,  wlietlur  "Jl  .lac.  1,  c.  14  is  in  force  in 
this  Province. 

Sco//  V.  Ill  iiilf  rsiiii,  'J 'riiom.,  Il.l. 

/''(■  Young,  C.  J. — It  "as  the  opinion  of  the 
late  Judge  Hill,  who  alistained  in  Sm//  v. 
Hi  mil  rson,  2  'riiom.,  115,  from  giving  a  decided 


1347 


STATUTES,  IMPERIAL. 


um 


"jiinidii,  tliiit  llu' Siututf,  •_'!  .Iiif.  I,i'.  14,  minlit 
til  III!  lii'ld  an  fxtciiiliiig  l'<  tliis    I'liiviiKf,  and 

t'Dlllt'irill),'     on     tllO   S\llpil'(.t,    llfti'l'   11     IMPSHL'.ssillll     (if 

twenty  ycui'B,  n,  riglil  td  lniM  tliu  j)ii»si'«siiiii  till 
ilii'  title  lie  imIjikIki'iI  for  the  Crown.  Tiio  liitf 
Cliii'f  .luMlicf  Hiilliliiiiton  si'L'niL'd  to  iiciiuiesci;  in 
this  view,  nnil  .hidge  iJliss  to  have  nn  doiilit  tlial 
the  Statute  was  in  force  with  um,  1  look  niion 
tiiis  Statute  as  jieculiaily  siiitetl  to  our  comlition 
and  eiiTtinistancfs,  and  to  have  the  same  title  to 
lie  considered  a  part  of  our  law,  and  on  the  same 
prineiiile,  on  which  we  have  always  recognized 
the  Statute  of  Uses,  or  the  Statute  (/-  </«///<,  till 
the  recent  enactnie'its  aliolishing  estates  tail. 

IJliss,  l»odd,  Desliarres,  and  Wilkins,  ,1.1., 
eoii'iirrxl  in  hohling  the  Statute, '-'I  Jac.  1,  c, 
14,  in  force  here. 

SiiiyHi  V.  McDonald  •!  nl.,  1  Did.,  "274. 


*21  Jac.  l,c.  10,  s. ; 


12  1  iir.  2,  f.  l.J 


V.  l;j  (ieo.  :J,  c.  «3. 


.Ml  12  ANNE,  Stat.  2,1".  1«. 
1'2  Car.  2,  e.  18,  s.  2 - 

"  Xo  ulhii,  or  iiirion  not  horn  wilhiii  the 
uUiijiuiiri  of  till.  Khiij,  d-r.,  shall,  dv.,  txt/r/.«t  tin. 
tradt  or  occujiation  of  a  mtrchuiit,  or  factor,  in 
uin/ "  island,  ])lantatioii  or  territory,  thereto 
heloi.^ing,  or  which  may  herciifter  beUing  to  His 
Majesty,  his  heirs  and  successors,  in  Asia,  Africa 
or  America,  "  n/ion  jiaiii  of  fi>rfiilnri  oj  all  hit 
tiood"  and  cluittds,  ur  n-hU-h  ari  In  hii  j>oii(  t.iloii.'' 

American  treaty  dissidveil  all  connection  with 
the  suhjects  of  tile  United  Slates. 

Persons  horn  under  the  King's  allegiance  there, 

not  entitleil  to  the  privileges  of  IJritish  sultjects. 

Thi.  Prorld.tnci ,  Stewart,  18G. 

n  Car.  2,  c.  8,  s.  1  - 

4th  K.  S.,  c.  94,  s.  W-2,  ij.  v.,  reproduces  this.  { 

'1  Will,  and  M.  Scss.  1,  c.  .5  - 

V      STATUES,  NOVA  StOTIA,  8   «eo.  3 

(l4«S',  c.  4. 

7  A'  8  Wm.  3,  c.  22,  88.  i  and  11- 

S.  •!.  ■•  \<i  ijoodx,  A<..  xh'dl  tic  .  .  .  car- 
ried from  any  one  ]ii,rt  or  jilacc,  in  the  t'ldu- 
nii'S,  *tv.,  to  ainj  other,  .  .  .  in  an;/  )<hip 
or  bottom  tint  ichat  is  or  t<h(ill  be  of  the  build 
(f  Enijland  .  .  ■  or  the  Colonies,  Ac,  and 
wholly  owned  by  the  people  thereof." 

S.  17.  "  -Vo  vessel,  itr.,  to  be  deemed,  itc, 
such  a  cesscl  unless  rcijistered,  upon  pain  of 
forfeiture  of  ship  and  yoods." 


"Teople"  means  •' inhaliilanls."     Scttli,!  I,y 
•Jti  (ieo.  .'t,  c.  liO,  s,  S, 

'/7ii  Frii  iidt  Ailci  idiirt ,  Stcw.u  i,  'Jiki. 

%  ii  8  Wm.  »,  V.  -'•-»,  ».  »- 

•'All  hncs.   tic.  //(   mnj  if  till    .toiJ  j,hii,i,i. 
tloiis.  which  lire  in  aniju'ise  rc^iminnnl  in  'imj 

lairs  tn   lie    lilidle    in    tirmt    Uritilili.   xn   r'.ii' ".< 

.s(((7/  law  shall  relate  tn  uml  mintinn  Ihi   s^iiil 

lilantatinns,  arc  Uhijnl,  null  and  i-nid.  in  nil 

intents  and  puriiosi  s." 

If  under  the  Act  of  Nova  Scotia,  1  (Ieo,  H.  r. 

S,  piize  money  lan  lie  attaihed  in  liamls  of  \n\/v 

agents,  then  thai  Act  is  void   undei'  7  i^:  H  Win. 

:{,  c.  •.".',  M.  !». 

The  Inrninda,  Stewart,  [i.  '.M.'i. 

1)  Si  Kl  Win.  3 

(I'.y  this  Statute  tlie  poor  were  to  he  ni:iiii- 
tained  liy   taxation  of   every   inhaliitant,  uinl  nl 

j  all    lands,    houses all    stocks  aii.l 

■  estates  in  tlie  said  'I'own)— 

Ships  registered  at  HiUl,  w  hicli  usually  trii'kil 

to  and  from  that  port,  were  within  the  TowiinI 

Hull  at  the  lime  when  the   rate  was  made,  ami 

!  had  made  several  voyages  to  and  from  that  \m\ 

'  during   the   year.     They   were   properly   wtuil 

1  there. 

Kenny  v.  The  CHy  of  Halifax,  1  U.  &  ti.,  :!!•. 

0 1  10  Win.  3,  c.  15- 

(Motiou  to  set  asiile  an  award  must  he  nwilu 
before  the  last  day  of  the  next  term  after  liio 
making  and  pulilisiiing  of  the  award)— 

Held,  hy  the  .Judge  in  Eiiuity,  that  iliU 
Statute,  in  the  absence  of  any  legislation  of  our 
own  on  the  sulijecl,  governs  our  practice. 

In  re  Frasi  r  ,V  I'aini,  U.K.  l).,ii\ 

Atlirnied  on  appeal  to  the  Supreme  {'nurtul 
Nova  Scotia. 


4  Anne,  c.  l(i 


4  Anne,  c.  10.  s.  It) 


.s  ,  23  Hen.  0, 0. 9- 


13  Geo.  3,0.  a 


J  Anne,  c.  20-iRegl8tr)  Act)- 

The  terms  useil  in  this  Act  are  so  ditt'iTiiit 

from  the  language  of  ours,  as  regards  the  ill^tl«• 

ments  to  be  recorded,  that  on  this  point  ileus- 

ions  under  it  are  not  in  all  cases  a  guide  to  us. 

i  Coijswdl  V.  aruhum,  R.  E.  D,,.% 

8  Anne,  e.  14- 

Sie   STATUTES,  NOVA  SCOTIA,  8  (ieo. 

(1708),  C.  4. 


i:{+!> 


STATUTES,  IMPERIAL. 


1;}.jO 


\i  Aniif ,  Stat.  2,  c  lA-  I 

|Saiiit'  iiH  ]'2  ( 'ar.  "J,  c.  I,'{,  with  tlic  i'\if|itiiiii  ut' 
the  iiiluctioii  lit  iiitfiot   t'idiii  six  per  ifiii,  t(i 
tivi>.      Until    Stiltlltrs    illi'     tulllliltil    on    ■_•!    .liiO,  ! 
Ir.    17)- 

II  tlie  It'iuk'i' I'liiiti'iicl  tor  gifiiti-r  iiitiTi'st  lliiiii 
ihe  Stiitiiti)  iiUowM,  N(,  ilmt  tliti  iigii't-nii'iit  is 
(in\iiit  at  tlif  tiiiii'  of  till-  loan,  all  liio  a>.s\n- 
iinT."  all'  voiil ;  l)iit  if  lliu  I'onti'iiL't  lit.'  foi'  no  nioii' 
tliiiii  tile  Statute  iillowH,  lint  iniylil  iiftiTWiirds, 
'ilmt  is  ii|)on  II  suliscinii'iit  agivi'mcnt,  take  inoTV, 
the  assiiiaiift'.s  all'  not  voiil,  Imt  the  jiarty  sliall 
fi'rtcit  tl'i.'l)lu  the  viiliio. 

I'itHi  i-xoii  V.  hiql'iiH  1 1  ii/.,  ;{  X.  S.  I).,  ,V_'. 


li  (icu.  1,  r.  20- 

>  '  STATITES,  >«VA  SCOTIA - 
IS  Veo.  :t,  t*.  0. 

•-'  tieo.  'i,  f.  iM  - 

ll  WHS  iu>,'i'il  thai  till'  li^'ht  of  luocli'iaci'ly 
I'oiii'itiiig  and  llo^'niiiL'  a  Mainan,  licaiin^  a  i:er- 
t.iin  analogy  to  that  of  a  paivnl,  1ml  not  per- 
hiijw  HO  exti'iisivi'  as  I  hi'  parental  power,  liiiil 
ln.'eii  taken  from  the  master  liy  the  necessary 
operation  of  the  Imperial  Stiilntes,  litieo.  "J,  c. 
."Iti  and  17  iV  IS  \'ic,  r.  lilt  (Miivliaiit  Shipping 
Art  of  |,s.->4.) 

JI'/il,  that   siu'li   iii;lit  iiad  not  lieen  so  taken 


'.'ml  R.  S.,  e.  S'2,  s.  I  is  almost  a  transeript  of         '  ^' 
\\m  Act.     This  section  was  re|iealed  liy   Doni.  , 

Alts,  is7;i,  "I,  s, ,-(. 

/<V(/.w  V.  S'roiiij,  I  X.  S.  I).,   ;.'i4. 


ildfihiii  V.  li(iri/iiii,   I  X.  S.  I).,  SO 


l»  (ieo.  1,  c.  7,  s.  »  — 

'  //'  (1111/  -■/('■/t  Jii.^iici  (,/  P(nci  ili'il/  lt(t/i/ii  II  til 
'"■'ll  ill  any  vlli/  or  of  hi  r  ///•<  rim-/  thai  /■>■  a  Count  ij 

'imtf,  "itiinte.  irithlii  thi  Comity  nl  l(ir'ji-,/ur 
Wl/r/i     hi-    nh(t/l  l)K  (iji/ioiiili  d  Jiisfli-i:  of  I't  an  , 


4  (ico. '-»,  f.  21  and  I'J  tJco.  »,  c.  21  - 

••  .1//  rhilili'i  II  litini  iiiiliif  thi'  K iiiifuliijiiniri; 
vlin.if  I'athir.i  III'  iii'idiilfiithci'n  III/  thi'  fiithi  r's 
niilr  n-iri'  iiiiliii'iil-liiini  snlijifts  iii'i'  tin  nn-il  to 
III'  iiiitnrnl-liiini  sillijfrl.stliriiisrlci'S  to  1(11  iliti'llt.H 
itiiil  /iiii'ji'isis,  inilrss  Ihiir  sin'il,  inii'i'Ktoi'n  vrfi' 
iitliiiiitnl    III'    liiiiiishiil    liiiioiiil   xi'ii    flit'    hiiih 


Motiiih  not  irllhin  th'  sam-  Coiuity,  it  ihn/t  ami  ti'msnn.  -./•  n'lrr  ut  thr  liirth  of  mirh  rhihlnii 
nmj  III.  laii'ful  for  any  siirh  Justin- of  I'laii.  to  '""  ""'  •■"'''('''■c  of  ii  /iriiiri;  ut  •■niiiU'J  n'ith  thi'. 
imiii  ii'arrantf,    tah     ixainliiationi   and    mab     '-'i'"i''ii  "flhis  nuliii." 

f'l' i':<,  fur  (tnymnttiri  n-hirh  any  onr  or  man  '  '1"!"-'  children  and  grandchildren  of  natural- 
./ii«/i>.  orJnslli-isofthi  I'larc  may  art  in,  at  hti  1 1""'"  I'litisli  siitijects,  though  born  in  a  foreign 

''■II  ilinllinij  hoiifi,  althoiiijh -such  ilwcllimj  hoim\*^"^^^^^'-'y^  "''<-'  ""'•  iili»-'ii"<i  ini'l  'irt',  therefore, 
out  of  the  County  ii'hin  he.  it  anthoriud  to  ail  '  capable  of  transmitting  real  estate  in  this  Pro- 

'uJiixtii'i:  of  I'laci ,  and  in  som    rity  or  othtr  i  vinee  by  descent,  and  otherwise. 


'■iiirt  adjoinini/,  that  /<  a  County  of  it-<i/f.'' 
Thi'  defendant  was  brought  before  the  Stipen- 
ii.iiy  .Magisti'ate  for  the  County  of  Halifax,  and 
•rinl  uiid  coniinitted  for  an  assault  on  the  high 


Saltir  V.  //injht.^,  1  Old.,  409. 

11  Geo.  2,  C.  19- 

Ilild,  that  the  portions  of   11   (Jeo.  "J,  c.  19, 


Tiie  trial  and  conviction  took  place  at  the  1  not  incorporated  in  the  Local  Act  of  17(JS  (SfSeo. 


itict'of  the  Stipendiary  Magistrate  in  the  City 
■iHulifux,  which  was  outside  the  limits  of  the 

"iiiity. 

//'/</,  that  the  conviction  having  been  made 
Misiilu  the  territorial  limits  of  the  .Magistrate's 
]aiisiliution,  wan  bad. 

'I'rni  n,  whether  if  made  at  the  dwelling  house 


3,  c.  4),  are  not  in  force  in  this  Trovince. 

Sii,  aUi,  STATITES,  SOVA  SCOTIA,  8  (ieo. 
3  (1«68),  C.  1. 

Corni/iiii  V.  Burton,  .S  N.  S.  1).,  ,'}.S7. 

11  Geo.  2,  c.  10,  8.  23- 

(Compels  Sheriti's,  for  the  benefit  of  landlords, 


■! the  Magistrate,  though  outside  the  limits  of    t„  take  jiroper  rei)levin  bends) 


/'( ;•  liliss,  .1. — This  Statute  may  have  been 
adopted   by  our   Legislature  as   their   guide  in 


s  Jiiiisdiction,  the  conviction  might  have  been 
vm'<l  liy  the  Imperial  Act,  9  (ieo.  1,  c.  7. 

Qimn  V.  Hiiijhix,  o  R.  &  (!.,  194.  |  fraining  our  Act  with  regard  to  Sheriffs  taking 

bail,  IS  (!eo.  3,  e.  (i. 
Jarkson  v.  Campliil/,  1  Tlioin.,  ('2nd  Ed.),  18, 


12  Geo.  1,  c.  20- 

Rfiinired  that  before  the  issue  of  a  writ  of 

1  i^pias,  an  affidavit  should  be  made  and  tiled  of 

'"«  "cause  of  action.''     Decisions  as  to  sutti- 


13  Geo.  2,  c.  T- 

Knacts   that   "  all    /it  rsornt  honi  out   of  the 


"ity  of  atliilavits  of  causes  of  action  under  this    lii/eance  of  Hii  Maji  sty,  who  shall  hare  inhabited 
I  ^tJtiite  reviewed.  and  resided  for  the  space  of  seven  years  in  any  of 

McDonald  v.  Frasi  r,  3  R.  &  (}.,  p.  "290.    His  Majesty's  Colonies  in  America,  and  nhall  take 


1:1.-)  1 


STATl'TKS,  IMPERIAL 


]Vyl 


Ih'  uitih^ihii  /.v»;,m/,  .;,/(///»  ,l.,wl,(iiljiiil;i"l  A  writ  ..f .  ■  W/ocrn-/ \Viif.«|UiiMlu;.l(,ii  the  j-inniM, 
ami  tnbii  luh,  lli>  .\/iii,s/,i\s  „alii,nl-l»>iii  "iil'-  iiliiiMiK '>tli»'i ".  t'li''  tlif  hix  "liiys' iiotiiv  ni|Uiiii| 
JM'N  „ffl,l.i  Kni'jiloiiiji'  (tU iiil.  iii->,iou-tn,ri,i,„^,    \<y  Ihix  Stiitiitr  «iiM  not  givon. 

Ml  Ihiiiiilil  V.  HuiKiii,  7  I!.  \-  I'.,  •.'.'). 

Hi  hi,  not  in  fi'i'i'  in  tl"i«  I'mv  inif. 

(^hiii  ii  V.  I'iiiii,\  •.'<!  N.  s,  I;., 

(H  K.  &«..).  ;!•'•-'; 
!»('.  L.  T..." 

.Vm.„/.„,  CERTIOKAKI,  7.  I-',  W  ^  \X 


ttiiil  /iiiriio'd  ■<.'' 

//i/il,    that    11    \nrni<H    Ihuii     mi    tin     I'nilcd 

Stiitfs  in  177."),  luiil  who  liail   ic.-iili'il  tiuir  till 

the  latter  iiid  nf   ISOS,  cnMlil   ni>t  in    ISIKI  cliiiiii 

the     licnilil    lit'    tliin    Art.    iiltliimu'li    imldin;,'    ii 

li(«ii.'«i'  fiipiii    ilif   (idMiimr   111  ri'-ic'u'    in  Nnva  I 

.Sii.tiii   gi.mtfil    iindcr   tlic    l'rii\  imial   Ail,    'M 

Cio.  .'J,  I',  I. 

V7(.    I'ri.riiliiin,  Stiwart,  |).  IIM). 


1.3  Ct'«».  *2, «'.  IS,  N.  5  - 

",Vi<    "■'•''    "/     II  i-l 'null  I'l      ^hiill    III  iiii/iii-lli     III 
i/nnihil,   :^iiiiil  I'lii'ili  I,,-  iilliiii'iil   III  I-' iiiiii-i    'iiii/\ 
iirili  r,    i-iiiirii-iiiiii,  (iru'lin-   /irdn < illnn    ln/nn    a\ 
,lii<lii-i  III-  III  Ihi  .SV««/ii;/s  '(((/ivs  il  III  it/iiilliil  /or 
ill  ■/'.(■  i-nhiiiliir  iniin'li-,  tin'l  ii/'i"'  "iilli  niiuli  'lin'  ' 
till   /Kirhl  liil-'  ijin  II  il.r  ilili/^'  iiiihi'i    in    n'rihinj   In 
III!    Jilslin   (11-  .hi'.liri  «,  (/(■  /irii  nj  lIu  ill,  if  -n  iiltiiii/ 
llli  ,-i    III." 

It  is  an  c^talplislitd  rnic  ct  |ir,utii;e,  ll>at  no 
ii|i|)lication  t'nr  a  criminal  intorniation  lan  liu 
moved  against  a  Maui.-lraK'  tor  anytliin>;  done 
ill  tlif  course  ot  his  olli-e  w  itiioiit  |irc\  ions  notice. 
Six  days' notice  nuisl  lie  ;,'iven.  It  is  rc((iiired 
)py  Statute  in  cases  of  n  r/ioniri,  and  it  is  roason- 
alile  tiial  the  sanic  rule  »dionld  iirevail  in  tile 
case  of  notices  for  a  criminal  iiifoinialioii. 

(,'((11//   V.  y//((  •</('<,  .lames,  it»l. 


l:{  lii'o.  2,  c.  W  ' 

(All  Act  to  restrain  and    ple^enl  ihi'  cxci'itnivi' 
increase  of  horse  rai'es,  cti',)    - 

tjiiaui,  wlietlur  in  force  in  tiiis  Province. 
Ihiiiiii   \.  Cli'iiilli' 1'^,  -•'  N.  S.  !!.. 

(s  u,  \  (;.),;j(iii 

'20  lii'O.  '2,  f.  3S  - 

(An  Act  for  the  relief  of  niiiinied  and  disildi 
seainen,   and   widows  and   cliilcheii  of   siicii  ic 
shall  he  killed,  slidii  or  drowned)  - 

Tlie  ohject  of   the   Statute  was  to  pioviilc 
fund   for   the   )ierinaiieiit   relief  of   the   ikimiii- 
naine.l  ill  the  title  ;  Iml  it    h'ft   the  right  of  tli 
sailor  to  siipiiort  and  medical  aid  aliroad.  wjiiii' 
the  voyage  was  n  it  terminalcd,  iinloiu  lad. 

'I'he  sailor  was  hound  to  pay  so  much  ijennulilli 
towards  the  fund  contemplated  hy  the  Sliituti, 
and  in  coiisiderutionofsuc.il  paymeiii  he  whmii 
titled  to  certain  advantages  and  relief  iniilur  il, 
lilil  there  Wiis  no  intention  of  eiiauliiig  aiiyiiial 
The  ririiorari  was  attacked  -m  thegroimd  UT  interfering  with  the  then  exi.sling  light- 
that  lotice  h.id  heeii  L'iveii  to  tiie  Magistrate  |  hetweeii  master  ami  manner. 

as  required  hy  the  Imperial  Statutes,  I.S  (ieo.  •-',  j    Unlsloii  v.  /;„/»  il  al.,  I  Tholii.,  (1st  IvU  4^« 
c.  IS,  hut  no  .such  ground  was  taken  in  the  rule.  |  *-'"     '''   ''  '' 

llilil,  that  this  ground  could   not  he  taken  at  i 
the  argument.  24   GCO.  'i,  f.    40,   S.   l*J  -  IT.  SnI   U.S.. 

'."""/■',    whether   the    iiile    rei|uiriiig    notice    u.  19,  h.   16^ 

a|(plied  to  this  case  where  the  .Instice  acte.l  as  \       Kmicts  that  no  person  "  iIkiH  '"    nilillnl  "iilo. 

a   Hpecial  slatiitoi\-    Court,  and  not    simply    as    ,„•  iiitiiiiHtin  (iiii/  '■itiisi ,   action,   or   •<iiil  )or,  <« 

a  .Instice  of  the  IVacc.  riranr  (Hhn-  in  Ian-  or  in  i  llilil  ijuuij  "lun  or '■m 

Tii/i/xr  v.  Mnrplii/,  .'{  K.  .V  <i.,  I7.S.    of  moiuy,  ihl'l^  or  ilnnaiiiU  n-haltirr  for  or  » 

j  ni-i-oiiiil  of  mil)  ■■<jiiriiiioin  liijiior-i,  iiiil>  ■«  "nd  (!• ' 

,,,,,.  ,.  •  .•  1       »i      'ihallhariliiiii  yiallu  nml  lioiio.  liili  nmirif'"! ''' 

//////,  that  111  making  a  '_..i;victioii  under  the    ••>"""""■"         '  '        ./  .  ^ 

1     ■!•  \\     iv-v    .1,,,  s;,i,.„„li.,,.v    oiii    lime  lo  ihi    nmoniil  of  lin  III  11  -li,lliii;t^  'III 

(  anada   1  emper.ince  Act,  IS/.S,  the  .stipendiary 

Magistrate   for  C'ornwallis    I'olice    District,   l.y    I'l'"-"'-'!"-" 

wl...m  it  was  made,  was  exercising  the  functions        ^)">'  Act,  :Jrd  K.  S.,  e.  I!.,  s.  10,   goo    m 
of  a  .lustice    .,f  the  Peace,  ami,    co,ise,,uently,  ,  tl«U'  the    Kngh«h,    masmueh   as  .t  avo  U  .i 
that  the  Imperial  Act,   l.S  (leo.  2,  c.   IH,  .s.  .5,    -curity  given  or   made,  ;>' -'"''^•;';' '  ' 

limiting  the  granting  of  the  writ  to  six  months    «''^'"'--'    '"'>■  -''-'•«\  f'"',  '■'l"'"'.    '"'■  "'"^"  "■ 

r        ,       1  i       r  ^T  •  i-  1-1      Ti     '  action  cannot  he  iiiaintaineil. 

after  the  date  of  the  conviction  applied.      Ilie  ;  "'^"""  .  „    ,,     ,  .v    <   n    .,  ini 

II  rtiornri,  which  had  not  hcen  moved  for  until 
after  the  lapse  of  twenty-lwvp  months  from  the 

(hite  of  the    conviction  was  therefore  nuashed  ;      24  GCO. '2,  C.  24—  „„„-,i 

Mith  costs  *'  STATl'TES  OF  NOV.i  Sl'OTIA, 

'Queen  v.  MrFaddm,  C  R.  &  (!.,  426.  |  54  CiCO.  i,t''^' 


1 ;!.):{ 


STATIJTKS.  IMPKUIAL. 


i:m 


■iMiro.  '2,  ('.  II,  SM.  ihiiul  8- 

■jlhl     I!.    S.,    ,•.     |,-.|,     rt.    :.tli    H.    S.,    c.    lit,    i^. 

'ikni  liiiiii  '_'t  (ini.  ■_>,  I'.  (I,  xN.  tl  mill  M. 

Mrtirxjor  w  I'liihr^iiii,  I  0|il.,  •.Ml. 

H  (ico.  'i,  c.  14,  N.  8-  (f.  5lll  It.  S.,  (>.  Ill, 

'.  ;j  - 
il'ruv.  AlI,  W  (Jcii.  ;<,  I',  l.'i,  H.  10,  in  II  cii|n 

'.(  iliiM  - 

".V')  r(i-liiiu  i/lil/l  hi  liiiiliilli/  (lijuill^l  llity  Jlt^/iit 
,i'>h'  I'l'iii  fur  ri  III/ III  hill  ilniii  iulhi  IXI-' iltiiiii 
■./Am  ".//''■',  nr  iiiiiiiii"!  (iiiji  iiiiixliilili ,  or  ulhir 
f,^nriir  jii  fioii  iirtiini  in  ii/hri siiiil,  hii/imi  rimi- 
n\iiii-iil  irllliiii  a'lx  inli  iiilur  iiuiiilln  tifli  r  lli'  ml 
miiii""/." 

The  wdi'iIm  "iirlliiii  111  II Jon sitiil  "  woic  lnlil 
•0  ii|i|ily  to  till!  lust  iinti'ii'ili'iil  wold  jiirson, 
iiiil  til  iiit'iin  iti:tiiig  ill  iiiil  of  till'  c  <iiHtiilile, 

iir.'iiil  H.  S.,  c.  I.'il,  H.  M,  this  Hectioii  i«  I'xiutly 
will  ."illi  11.  S.,  c.  I!),  H.  M,  "  ..Vrt  Ill-lion  hIiiiII  I,i 
htiiiiijlil  fiiiniiisl  II  roiiMliilih  ,  or  ol/ii  I'  ojlin  r  or 
j.'f'iiii  iirlimi  ill  lii-iiiii/,  ini/is.s  l/ii  .1111111  In  foul- 
miinit  irilfllll  -i/j.'  llloiilliH  III  jl  II  I'll  r  III'  run -(I 
•1' iirllnii  xliiiH  liiiri  iirrriiiil." 

1I'!<I,   tliiit    .'il  lifii.  :i,  f,   15,   proti'its   ii  «iii|.  I 

•l.llilc  illlll  Ilis   ll^'si^tilllt^^    ill'tillj,'   IMIlll'l'  nil  CXlTll-  ! 

•:"ii  HiilistitiUc'il  fur  ii  wimiiiit. 

S<  Illlll  II,    .'ml,  \.    I>i   Will/.   I    'i'lliilil., 

C-'iiil  I'M.),  1  !•••(. 

Hioo.  3,  c.  1.1,  s.  I«- 

Kiiiirts  tiiiil  ^' III  riix'  Hill/  iiiformiiiinii  i/mll  h, 

'Mniiiii'iil  mill  liromihl  lo  Ir'id  in   Annririi,  on 

'Illlll  III'  (1111/  tl  i:iiri'  of  mill  x/i/jit  or  ;/o(«/<  111 

■'.ihiiiil  1,1/  ihiM  or  (1111/  o'litr  An  of  I'lirliiinii  ni 

■■I'liiiiij  In  Ills  M(tjcnli/'s  riisloiiiM,  irlii  ri  in   11  n  r- 

''',  oc  iiiiliiiri,  sIkiI/  III    ijinii  for  i/u    flniim  r 

'I'l'io/';  mill  it  sIkiII (i/i/ii (trio  lln  .Imhii  or  Coiiri, 

•1  ii-lioiii    III!    iiaiii    ihiill  Ii,    iri<il,ili    ■  linn 

"K  (1  jiriiliithli'  ritii-xK   q/'  11  i:iin  ,    lln    Jinliji    or 

<Mi-i  III  fori'  irliom  fill   -1(11111  "hull  In'  irlnl,  sludl 

■i''<fil  III!  llii'  ni'oril,or  ollnr  /ironnlliiii-i,  ilinl 

'•    init  (I  /irolidlili    niii.ii    for  llii    /iron  riilori 

iiiij  III'  irilil  tliijt  orijooils  ;    mnl  In  siirli   mii 

'lifniildnl   iIkiII  iioI  III    iiililliil  lo  any  ro-il-i 

'  -III'  irlidl.ioi n  r  :    nor   -iIkiII   IIh'    /h  noiii  irlio 

'".■''  Ill'  xiiiil  sliiji  or  iinoils  III  liiilili  lo  mil/  iirlloii 

' '''lln-  -ikV   or  jiro-iinilion  on  (in-c unl  of  ■•nirli. 

The  ut'ititioate   must   Iw  gnintetl    upon    the 

■"'s  iipiiuiiring  ill  the  cause,     It  is  not  neces- 

I  *!')■  to  prove  them  to  have  heeii  known  at  the 

■ime  of  si'i/.ure.     False  papers,  prolmhle  cause.  ' 

The.  Fdiif,  .Stewart,  1 12. 


Heo.  3,  c.  16- 


•Vm  21  jac.  1,  c.  '2. 


I'i  lien.  :t,  c.  Ji,  n,  .11  — 

I'lliintfil  that  "  lilt  hill  III'  I  I'llimiiii  ur  hilninl 
hill  III-  iiriiiiiissiirii  null   ii-nnlnl  uflir  lln    l.'illi 

illlll  iif    Mini,  I  77- ,  shilll  III  of  fufi'i  III'  ifi'i  I  Illlll 

III  /iruiliirr  mill  ililiiji  iirr  ur  nrliun  ill  Illlll  jiiirl 
iif  lii'iiit  Ih'iliiiii  riilliil  Sriitliiiiil,  iinli.s.'i  kiivU 
ililiiii'iii'i'  ulinll  hr  I'liimil  Illlll  I. i'i  villi  il  or  ui'tioii 
riiinini  iii'i  il  llnri'iin  n'ithiii  llif  s/nirr  uf  sir 
in  11    s  fruiii    mill    ufUr    llir  lirnl.t    ut    li'llirli    Ihr 

.llllllH   ill   Ihr   Sllill  hills   ur  null  S  hi  I'llllll'  f.l'illihll'." 

I'liiiiititr  .siii'il  oil  lour  liilli  ol'  fXiOiaiij,'!'  iliawii 
iiy  liiiiisclt'  at  (llasgow,  .ScoiIiuhI,  in  IM.'KI  uiiil 
|S.'{7,  upon  the  ik'fuiulaiit,  ai'i.eptiMl  ]iayalile  four 
MiolitilM  after  iliitf,  at  lll<'  ilcfciulaiit's  nliop  in 
filiis^fow.  IMaiiititl's  ri^'lit  of  aclion  was  liarrcil 
ill  SL'otlaiiil  liy  I-  (ieo.  .S,  r.  7-.  (If  was  not  in 
Nova  .Scotia  when  his  right  of  action  accriicil, 
liiit  caiiic  for  the  first  time  to  \ova  .Scotia  within 
six  years  of  the  ilay  of  the  coiiinienceiiient  of 
this  action. 

//-/(/,  that  I'J  (Ieo.  ;!,  c.  7-',  s,  :)7,  ilois  not 
extinguisii  the  ileht,  Imt  the  rcliieily  only,  ami 
tliat  therefore  plaintill' ciilllil  liiaintiiill  iiis  aetinll 
liere. 

ISri/soii  V.  ili'ilimn,  'J  'I'liom.,  •J7I. 

13  IJco.  3,  c.  03- 

'I'lie  SiipreiiK'  ( 'oiirt  at  Calcutta  was  aiilhoi- 
i/cii  to  exercise  the  MUiie  jurisdiction  in  civil 
causes  as  was  exerciseil  hy  the  Court  of  King's 
lieiich  in  Knglaiiil  liy  the  coniinon  law,  ami  it 
was  assumeil  that  hy  such  authority  the  piovis- 
inns  of  the  Statutes  of  Limitations,  '21  .lames  I, 
I'.  Iti,  s.  7,  ami  4  Anne,  c.  lli,  s.  lit,  were  trans- 
feircil  to  Imlia  as  part  of  tlie  law  of  KiiL;lanil, 
auxiliary  to  the  common  law. 

Cnn-ill  <l  III.  V.  n'dlldo,  ;{  N.  S.  I).,  |(i.-). 

14  (Jeo.  3,  f.  48  - 

(An  Act  for  regulating  insurances  uiioii  lives, 
ami  for  ))rohil)iting  all  such  insurances,  exce])t 
in  eases  where  the  jpeisons  insuring  shall  have 
an  interest  in  the  lift-  or  ileath  of  the  person 
insiireil  ) — 

S".  INSlR.lXfE,  LIFE,  1. 

22  Geo.  3,  c.  4«- 

Knacteil  that  it  shoulil  he  lawful  for  His 
Majesty  to  conclude  a  peace  wiili  the  Colonies, 
any  law  to  the  contrary  notwithstanding.  The 
treaty  was  suhseiiueiitly,  though  indirectly, 
confirmed  hy  other  Acts. 

Thi  Proriihni'i-,  .Stewart,  191. 

20  diCO.  3,  C.  60,  s.  S- 

"  Xo  subject  of  His  Miije.itij,  it'c,  ichose  vsunl 
residence  is  in  dmj  fon-iijn  country,  sliull  he 


i:}.-,:,  STATl'TKS.  IMPKRIAL  mc 

(lr,lllfl.nrinlill,il.'liini,;llii>    r<  si<li  lin.  In  I.,      tioll.       iTIir     jliri^.iliitloli    nt    \\\r    Ih-lMl.M   (,,uit 

i,inu'ri>finnj  Itrilish  f„H<ir  "'"•  iifiri«ai.U  .■stni.lnl  l.y  A.i  .,|  l',(ili„i,M.|it.i 

fliM,    tlmt   11   i)fi»nii,  wliM   Hulil  liJH  litml   in  Tin  \,n  n/rn  S.,i„rii  /^/ Oim- »,,  M..w«it,  Ji.i 

Novii  Mciiliii,  mill  wi'iil  Ic  llii'  I'liiti'tl  Stiiti'H  tfi 

«1i«|npNf  iif  pliiMici'  mill   |iui<liiiH('  11)111,  mill  ill-  jjji  jjj,jj^  .|    j,^  ,^^   . 

t..n,lnl    11.   H,ay  h  Mmr.   ti.ii..  iiml   i.t.un    an  it  J^^^  ^    '  ^,  ^^    ^^^^    „„,,„„,.Ki,i«   new  m.,.1..,>  „, 

van  alU.K.'il,  Im.  tli.-lu  «,l»  hn  ..v,.l...l..i.  ot  h„..1,  ^^^^  ^,„j,„,^..^  ..„,„„i.,,  i,.  .^,„..,i,,, 

iM,i.|„i.,„.  anil  111.  r-HiiU.il  ...  il.c  I  .i.lci Ma.Ls  ^^    ^^  _^.  •  ^  n'.lrr  oli.n  .ha.  if  a.,v  ,...,.,„.. 

U„h   i,i.  fa.iMlv,  ki.,,.i.,U  a,.   .,,.1.  >u,H  il...,..al..  ^,,      ',^,^ .,,.  „„.   fniuM  Slat..,  sl,„i,l,l  ,  „ni.  ,„„„ 

fifil   tiiilll   lici.lU  "Wlirl    I't    a    rillt.sh   ^<lllll  llinlif  '  .     «  .i      ii.    ..i„         t  v    ,     .i     .i 

"  Ml       I   ^  1  ilic.ti  |i>  ii.iy  ]ia.t  «>f  tl.n  r.'iiv.iiii' lit  ^|.\a.V'l)till 

"'"  ■^''''    V7,.   /V;,,-/.  .I,/,-.,,/.-/..  Sl,.«:i..,  •.•<«..    '"'•  '!"•  I""!"'^^'  "f  i'"'i'li"K  tl"'i'^'.  ••'■'  «'"'"  '" 

hni'i'iil  t'i,r  mill  ,'<iii'h   jiiriiiiii  ")•  inrHiiiin.  Iim-iiiii 

*i(M« I'O.  H    f.  00,  H.  18—  llr.-'f  "litiiiiii  i>  II    lln'li>'i     I'm-  tliiir  imriinur  t'l-iim 

Ciiaiiyc  i.f    lllii'^lf.'   ti.   I..'    i.iiliilxi'il   1..I    ifltiti-     fin     )inri  fliiif.  ilr.,  In  iiiiiniff  hiln  llir  mini    ill 

latr.     TviiaLy  f...'  faii.iiv  pioviilcil  l.y  -JT  (Ifu.     liriH.-'li  .-/////x.  d'''..  »';/,'/  iiiiii'«in.  Ii'iiimlinlil  /",•• 

S  (■    1(1   s.  in.  iil'iifi .  iih  nxlh  iif  liiinliiniih'ii.  Ill- iliilliiiiii.  ffii 

'/'/(.    /■',•;.)-</.. I '/'■'//'»/•',  Str wall,  •-'('.     Ill' ihihi.  jirnriiliil  iiln-inis  lli'il  ."""A   ImiiKihuUI 

I'll  I'll  il  II  rr.  A  r..  ."lull  I    linl.ih    llli     ii'linli.ii'ni.l 

W  (lOO.  ;{,  C.  W),  H.  l.*i,  niMl  'i't  Gt'O.  :),  C  10,    //,,•  r<//»c   nj'  Jiflij  iiiiiniilx  for  rnrii  iHiih  i„f^ 

H,    7  smi   llinl  sllllll  III  llillll  In  XIII'll   J'inililll." 

\\  liiiifViT  .111' iiiaxti'i    in  rlimiL'fil,  till'  pi'lsi."         liy  inmtiii'.- .^I'l'tin.i,  "nil  "iil,  ■,  nf  sm-h  itrlirl' 

lit'Lulilillg  liiaMti'l-  xliall  ^ivc  M'liivity  l.y  l.oinl.  niiuli   u-illiiii  /in  In   niniilll'  -hull  In   I'o'nl." 

Till  i'rii  ml"  Aili-i  iiiin-i ,  .'^ti'wa.t,  -(HI.        \|,t  inii.niU'il  li.  I'Diiipirlii'iiil  any  n.iiiiiHiiiil 

ji.'ivilfgt'w,  iKif  to  I't'iiiovf  gi'iioi'iilly  till'  >li«iiliili 

'2«  (ieo.  3,  »'.  <M>,  s.  40  -  tii's  i.f  .'*iK'li  Hfttlei's  hh  iilii'.iH. 
IliilMifiiii),'  i.i'iial.y  nil  (illiccrM  wilfully  lifgli'ct-  Tin   /'rorlilnii',  Stewait,  ]..  I!«l. 

i.ig  or  I'c'fusi.m  til  |nrtniiii  any  ait  leiiiiifi'il  l.y 

"""'"'""'■,    „.;,,,        V,        ,..,„,        33  «eo.  3,  €. -.0.  s.  14  - 

Tin  /•.'/.</. /^  .1'/. •'//'/<('.,  Stewart, '.'(Ml.  ... 

Knat-'t.s,  "  //("'  ''  •'li'ill  I"  /(("[liil  III  iini'iii'i  i"''». 

'2J  lleo.  3,  c.  10,  s.  13-  '">'  ">"'  i'in»»'!ii'J"!":i  "<'  W'-^'Hi  III-  r>'"'i'< 

,  !■        ,      ,1  liiiii  nl' Ihi    L'liil'il  SUili  ",    I'liiiii  iiini  oflltiln; 

"All  nxsih  mil  n  ilisln-nl  iiirui'ihiiil  In  lln  """'■'  "•  '  ■  ■'    ' 

.,  ,  ,      .  ,.  ,,      .,,.,.         ..    ,.  lorn "  of  lln    liiiliil  Slnti-f  iiilo  lln   I'lvnin'i  ^  ij 

ihi-iilimiK  ninl  fiiliilnlloiix  <ij  till  -'>'•>■"■•'•' •  ,,  •     ..  ,  »-        .,  ■;  .■  i  i 

',     ,..,.,       i.    ,       1,111  XovH  Seoul  fiiiil  2\' II-  liniii-ii'ii'l' :  I'li'iiiiiii  • 

m.iillhi.iiniiiiniiit  I'll  lli'itixlif^i'ijii'tx^xlm^l '"'  -'"'"''•  ,-,,., 

•,,...  ,  iilii,    itr  am    liirin  iilnn    xhull  iiol  I,,    iniiion 

hihl.  mill  lb ihiiil.  Ill  III!  hiti'iitii  mill  i>nriio»ix,  l<    "<  "'    „..',.,       ,    ,   .      ,..■,•.,„•,, 

,,,,.,,  I     r.ii  I XII  III  In/   Iri'f'h  xiili/irl.^,  iiinl  iii    linhili  hii'h 

(,s  iiliin  SI  ,"<;   "liil  siiill  III  nil  i-iiSfS  III-  lliilili'      *.'       •'  „•,•,.        ;•,,.;,„■ 

',  .....  ,.        I.-      ..  shiiuoii-inil  liii  lli^  Mii,ii"lil "  ■■'iii'.lii'isiiiiii  Ml" 

In  Kllill  jiilliiltiiniiinl  tnrtillliri'SilSillli'll  xliljiK.  /'  ,.        ,     , 

.  .  ,    ■     1    •    .         1  .       t   ,1  iinliil  arroviliiiif  In  Itiir. 

Hilil,n   nua..'.al   ami    ..itegni     part    i.f      if  ''       .,  .^^  .,f  ^„  („,  ,,^,,  „„H,„poi„il,U'U>„i.., 

„l,i.ct  ..f  tl.e.su  re«tilat.o.i.s.  tluU  tli.  .lan.c  of  the  ^J^^^^^^^^      \  ^^  .^  ,.  „,^,,.„^  ,„„  ^,,..,,, 

nmstei' should  l>e  (.'orrectly  iiscei'tiuiiei I.  ,    ,  ,i  ;.»,„..,      I'.iti.li 

„,,     „.,,,,        « ,   orui     «iu.ii'L's,  l.ut  the  (iwiiL-rs  1.1' pn.piifti.i.".     I.inwi 

Tn  Fvniiilx  .1  <//■()//»)•(,  .stewat't, '-'(K).       *  .      '  ,,  ,         i  .    ■    ,    ,,  „„i., 

sul.juc'ts,  resident  al.fi.ad,  eamii.t   imiinil  iiiuUi 

21  Cleo.  3,  c.  2»,  ss.  3  and  0-(Frcc  Port  *'""  *^'''-  y/,,  Xainit.  st.'wmt. w 

Act)— 

,Seu.   3  e.iaets    that    no    i.lliei'   niunh,    l.esiile.s 
those  which  are  eninneiated,  .'un  l.e  imported        34  fceO.  ,i,  C.  «»,  S.  14- 

under    pain   of    fo.-feitnie,    together   with    the        " -V"    In  nisi',;;    nnitrnrf   .„■   nitrnunid  ;■' 
the  vessel.  tmiisfir  nf iirnjiirtif,  ill  iiiiif  xlii'ti  or  rinsilA''" 

See.  0   enacts    that   all  forfeitures  under  the    xlinll   In'   rnliil   or   i-ffi-i-finil.    for  innj  \m 

Act  shall  l.e  prosecuted  and  sued  for  in  the  same  n-liiitxni'VH;  lilhi-r  in  liiv  or  in  i-i,iiilil.  ii>'''^>^ 
maimer  as  l.y  the  laws  of  revenue,  t.ade,  and  xiirli  Irmisfrr,  iVw..  slnill  In-  imiili'  h,,  hill '■ 
iiiiviKation.  •*"'''•  '"'  iiixtriiiiuiit.  in  vriliiiij." 

As  a  /•/•/;«  Coiirl  no  Court  of  Admii-alty  has        The  preanil.le  to  the  Act  mentions  i.iilj  >lii|' 
jurisdiction  in  revenue  cases,  and  as  an  Instance    ti-ansferred  to  ISritish  sul.jects,  Imt  tlie  enwt:" 
Court,  which  is  the  proper  tril.unal  for  causes    piut  makes  .lo  reference  to  the  i)rcaiiil>le. 
of  that  nature,  a  Cou.-t  of  Vice- Admiralty  has       Held,  that  the  regulations  of  the  Act  aprlvi 
no  authority  to  take  cognizance  of  offences  com-    sales  to  foreigners. 
initled  not  within  the  limits  of  its  local  jurisdic-  Th>  Fritmh  Adrailurc,  Stewart. '■< 


I, 
■I.  I 


i:t.'.7 


STATITES,  IMPKRIAK. 


1:J.>n 


.\,\  ti)  ciii'ry  iiitii  I'Xt'uutloit  till'  pi'iiviNiiitm  nf 
till'  Ainoi'ii'iui  'I'lvaty,  (iiivi-  im  li^'litn  nr 
|iii\  ilc^i'N  to  Anii't'iciuiN, 

TIk   /'rnrlihiir. ,  SU-WM-l,  ll»7. 

:< t  (iro.  :i,  c.  lOll,  n.  (I   ( I'rlxr  Art)  - 

Itv  tlii.'4  Act  till'  |ii'i''i'iii|it jdii  n|'  |iri/t>  mIiIjis 
«,ii  tn  III-  iill'i'ii'il  to  till'  Niivy  I'liiiml,  mill  nf 
.11113,  iii'iiiH,  uiiil  oi'iliiaiiuf  Htmi'H,  to  tlu"  Onl- 

mil JlcMii'il,  ti>  1)1'  |iHiil  for  liy  liilln  or  (Icliciitiirfx 

ui'i'iiiiliiiK  to  1^  viiliiiitioh.     It  i'\t('iii|('il  only  to 

l<lll("<,   llftt'l'   coMili'liinittioii,   iiikI    it    in   to   lie  ('oil- 

rlii'li'cl  from  it,  tliiit  r\i'ii  tluii,   llif  MiiJL'Mty'N 

ottiirix  ill  tliosi'   ill  |mrtiiii'iitM,    \\oiilil    liuvu    no 

liL'lii  iif  |)ri'.i'iii|itioii  uitlioiit  Niicli  |iii\Mr  iiiviii 

tlii'iii. 

77(1  f '»,/.  ir,  Sti'Wiiit,  .■(•_'!. 

:(1t  A  \n  (ico.  a,  c.  01  - 

lllr(|llilrK  till'  jlliy,  ill  c'llMi'S  of  felony,  t'ti'., 
ulii  II  c'Vicli'iict'  of  iiiMiinity  luis  Ihtii  ;.'i\ill  at  till' 
tiiiil,  to  liiiil  I'spt'cially  wlii'tliir  the  [.iiity  was 
ili*iiu'  « lii'ii  till'  ui't  was  I'oniniitli'il,  ami  pin. 
viilfx  fdi  tlii^  I'liNloiIy,  if  foiinil  insane,  until  tlio 
|ili.'ii»iiri'  of  the  Crown  uliall  ln'  known)  -- 

//'/'/,  tliiit  the  Crown  as  \\n-  /ntn  ii"  imtriii  is 
iiiiitli'il,  liy  ItM  inlici'i'iit  ])ri'rojj[ativt',  to  tlio  cum- 
I"ily  of  all  iiisiint'  persons,  for  the  ]iuipose  of 
]init('itini,'  tlie  eoimniiiiily. 

It  is  the  duty  of  the  Kxeeiitive  Coveiiiinelit 
if  the  I'lovince  to  assiinie  the  eiistoily  anil  eiire 
of  iKTsoiis  aei|iiitti'il  of  criniiiial  eliarges  on  the 
groiniil  of  insanity,  wliieli  lUity,  hy  the  eoninion 
lawiif  F.nnlanil,  is  vesteil  in  the  Crown, 

V""''  y.  M'trtlii,  James,  S'iiJ. 

41  Geo.  »,  c.  IMJ- 

I'mver  given  to  His  Majesty  to  regulate  the 

fees  til  he  taken  in  theConrt  of  Vice-Ailiiiiralty. 

'J'hi'  H'lmm,  Stewart,  r)i)0. 

Tlie  lightH  anil  powers  of  eaptnra  anil  prize 
.igfiits,  ovei'  captures  anil  jirooei'ils  liefore  final 
seiiteime  ilefiiiuil. 

77ii  //i;'A/»iM',  Stewart,  VIS. 

tSlieo.  5J,  c.  40- 

Wheru  the  enactment  is  that  the  motion  is  to 
I'O  iiiaile  in  open  Court,  it  is  clear  that  the  Jiiilge 
is  not  to  have  any  power  in  the  matter. 

CoUit  V.  Morni,  1  H,  &  (i.,  4-27. 

43  Geo.  3,  c.  99,  8.  24  and  r.  161,  s.  10  — 

All  appeal  was  given  by  these  Acts  to  any  per- 
>"ii  \\\\u  shouhl   think   himself  overcharged  or  : 
"wniteil.     A  party  who  had  )>een,  hut  b'lould 
'I'll  have  been  rated  at  all,  had  an  appeal  under 
lliesc  Acts. 

McGreijor  v.  /'aferioii,  1  Old.,  211.  [ 


'     45  (ieo.  !l,  V,  Vi,  ».  'iH  - 

"  7Vii  imi'til  riihrilliini  liitiifih  nv  i  m/iiiir,  !■■  il 
It,  i,iirihn->i  iiiii'hI  itiifi  1  j'diiinl  nii  himril  j'ltn  i'lii 
'lli/11  irilhtiiil  lifiii'i  iiliinj  III  iiiiiili  iillin>inii," 

'I'hiH  is  limited  liy  the  woriU  of  the  Act  to 

Xessels  liiniight  into  the  ports  of  (Jreat   lll'itain 
It    was   not    the   intention   of  the   I.egislatllle   til 
extend    this    power    to    the   Colonies,       Without 

siR'li  express  atithorily  they  loiild  not  he  pin 
chased   or   sold   liefoie   coiideiniiation.  even    in 
Cleat    Itiitain. 

77/1  C'lirlnr,  Stewart,  .TJI, 

4.1  Geo.  »,  c.  Vi,  NN.  at,  l!i  niHl  .Vi 

Sit,  .'II  cliiii'ls  lliat  ••  iiri:i  sliiill,  ii'illiiilil 
lil'i  nliiini  liiilli,  slmi  iiiilil  llii  sunn  nlmll.  Iii/jiiinl 
XI  nil  iii'f,  hiii'r  liiiii  lilliii'  iliiii'iil  iiiiil  ills- 
ilmrili  il.  nf  ililjililiii'il  mill  fiiiiilriiiHi'il  iin  lilU't'iil 
,  jivl.ti,"  or  sui'li  order  as  is  there  directed  ••  slmll 
llili'i  liiill  }ililili  fnr  ri  II  iishl'l  II)'  ill  liri  n'lni  tin 
miiiii  ." 

S,  V.i.  Cpoii  fiirtliei  proof,  the  .liidge  shall 
cause,  if  he  shall  think  lit,  the  goods  to  he  nil- 
laden,  and  shall  cause  tlieiii  to  lie  put  ill  piopci 
warehouses,  villi  sepaiate  links  of  the  Collec 
tor  mill  the  agents  eiiiploycd  by  the  captors  and 
claimants. 

S.  ,VJ,  relating  to  ajijieals,  the  orders  are  'Mo 
[  have  the  capture  ajipiaised  as  aforesaid," 

'I'liese  are  the  only  two  cases  where  unlivery 
is  directed  by  the  Act,  on  further  proof  and  on 
appeal. 

'riioiigh  the  jiartics  who  ii])]ily  for  the  order 

of  ap|iraisenient  are  to  bear  the  expenses,  this 

gives  them  no  additional  right  or  control  over 

the  ])ro])erty.     The  custody  is  still  to  be  joint. 

I.'i  Miriiil,  Stewart,  •2I!I. 

4.1  Oeo.  :),  i>.  t2,  8.  31— 

\o  luithority  whatever  is  given  to  the  (.'oiiit 
to  release  or  deliver  the  cajiture,  eithei'  on  bail, 
by  sale  or  by  any  other  mode,  before  the  hearing 
of  the  cause,  except  where  there  is  danger  of 
perishing. 

Thi  Curb  II-,  Stewart,  .SI."). 

45  Geo.  3,  c.  12,  s.  32- 

( Providing  for  condciuiiation  of  prizes  to  His 
Majesty   for   breach  of   His  Majesty's  instruc 
tions)  — 

This  case  was  decided  upon  the  common  law 
of  the  Court  of  Admiralty,  and  the  vessel  con- 
deinneil,  not  for  the  use  of  the  captoi-  or  pur- 
chaser, but  to  His  Majesty  absolutely,  not  as  a 
droit  and  peniuisite  of  Admiralty,  to  which  it 
bears  no  resemblance,  but  to  His  Majesty,  jure 
roronai ,  as  a  portion  of  that  original  right  to  all 
captures  which,  in  this  case,  from  a  breach  of  the 


1359 


STATUTES,  IMPERIAL. 


13(i0 


ormditioiis  ot  the  giant,  luivu  not  lieen  divested  | 

out  of  him,  hut  in  sulise(iuunt  rrize  Acts,  as  tiie  ' 

4.')  <;eo.   3,  uap.   72,  see.    .S'2,   it  was  expressly 

enacted,  ''tliul  it  iliall In-  lan-ftdfor  /lit  JikIiji:  of  j 

ih    Jlliih   Court  of   Admiraltji,     .     .     .     itpon  \ 

I'voof   of  /lie  linnrk  of  (uiij  of   ///-    M<iji  ■•<>!/'■■<  ^ 

lii-ifrnrtio)ii  rilaliinj  to  jifii< s,  or  of  any  ojfi-nn.  1 

(niaiiix/ the  ln\r  of  natioiii,     .     .     .     to  rondunn 

Utt  jiriu  to  Hi-<  M(i,h  ■■'tfi  "-t  iiihI  tll.iji0''(d."         j 

Ln  /i(iii<  dis  .l)i;/«s  Stewart,  !) ; 

Tilt  Htrkhivr,  Stewart,  141. 

i 

t5  Geo.  3,  C.  1%  s.  84— 

(Relating  to  unclaimed  or  forfeited  shares  of 

prize  money) — 

Tin  B(  rminln,  Stewart,  "i.')!.  j 

15  Geo.  3,  c.  72,  s.  SI  — 

•■  Eccru  iiijrnt     ....     sli<dl 

ii-i(Iii)t  four  iiiiiiitli.1  ....  riiiiit  all  iin- 
chiiiiii'il  liiiliiiin.i  iiiid  .ihcroi.  (i)id  id!  sliiiri-s 
if  run    mill   Co   tin;    TrrKisiirir  of    (trii-iii'-irlt 

UoKllWtl." 

Such  prize  money  is  not  a  suhject  matter  for 
the  law  of  the  I'lMvince  to  act  upon. 

Tin  Bi  rmiidd,  Stewart,  •J4II. 

48  Geo.  3,  C.  123— 

Knacts  that  the  api)lication  must  be  ma<le  in 

term  time  to  one  of  the  Superior  Courts,  which 

shews    that   the    Lt^'islature  intended  that  the 

power  should  he  exercised  l>y  the  Court,  and  not 

hy  the  Judge. 

Collit  V.  Mori  II,  1  K.  i>c(i.,  427. 

49  Geo.  3,  c.  49,  ■■oiitiiiiK  d  hij 
52  Geo.  3,  c.  20- 

( Lawful  to  import  into  any  port  in  Nova 
Scotia,  etc.,  whicii  His  Majesty  shall  appoint, 
certain  goods,  etc.) — 

Till:  Eroiioiiiij,  Stewart,  44(i. 


49  Geo.  3,  c.  101- 

".■1//  /luialtiis  ami  forfitiiri-t   irliirh  may  In.. 
iiwiirrtd  iindir  any  Acl<  for  junaltii-s,  inrnrrtdl^ 
ill  till  British  Coloniis  iindi  r  any  Imr  rdntin-  to 
traih  or  rtrtnm,  may  he  jirosirutid  or  smd  for 
in    any    Court   of   Record,   or    Vict-Admiralfy 
Court.'' 

Hi  Id,  that  under  this  Act  the  Vice-Admiralty 

Court,  at   Halifax,  had   jurisdiction   to  decree 

forfeiture  of  goods  under  12  Car.  '2,  c.  18,  s.  '2. 

Tilt  Proridenrt,  Stewart,  199. 

49  Geo.  3,  C.  123,  s.  13- 

(Provides  mode  of   demanding  and  receiving 
prize  money)—     Provisions  discussed. 

Tht  Btrmudu,  Stewart,  '236. 


52  Geo.  3,  C.  20- 

(Continues  49  <ieo.  3,  c.  2.'>  and  c.  4it,  ami  .",i| 

<ieo.   3,  c.   21,  till   -March  2.->th,    1.S14.     Th.^. 

Acts  permitted  certain  importations  into  Nuva 

Scotia) — 

S'.  49  Geo.  3,  c.  I"J. 

51  Geo.  3,  e.  97— 

(Sale  of  livnd  of  Crown  hy  Commissioners)  — 
//(A/,  not  to  authorize  them  to  sell  lain!  oi 
the  Ci'own  which  had  heen  in  actual  tiiiiiiL'h 
wrongful  pos.sessicm  adverse  to  the  Crown  Im 
upwards  of  twenty  years.  Intruders  jiidtiridl 
hy  21  .lac.  1,  c,  14,  until  judgment  in  iiitrii>ioii, 
Watt  v.  Morrl-s  2  I'.ing.,  X.  ('.,  lS!t. 

Smtt  v.  //' »</'/•-»)'/,  2  Tlmni.,  Il.'i. 

11  Geo.  4,  c.  20,  s.  S2-t  f.  17  A  is  Vltt 
c.  104,  !3.  211- 

(If  hy  shipwreck,  cajdure,  or  any  cause  \\h:(i- 
ever,  any  .seamen  are  cast  away,  or  left,  orhu  in 
distress  in  foreign  ])orts,  the  governor,  niiuisitr 

I  or  consul,  or  if  none,  two  I'.ritish  nu'iciuuits, 
are  required  to  sulisist  them  and  In  scud  tln'iii 
home)  — 

i  //ilil,  tiiat  as  ilie  Statute  had  failed  In  exiiiess 
the  ultimate  liahility  of  tiie  owner  to  disclmrgo 
this  duty,  or  to  hear  the  hurtheii  rif  it,  it  oie- 
ated  none  and  recognized  none. 

The  Statute  not  merely  "hows  that  tiierc  i>  ii" 
duty  on  the  owner,  hut  tlial  it  '\as  nni  niio 
thougiit  proi)er  to  impose  on  iiini,  hiil  r.ulni  :i 
public  charge. 

Miiaiii-on  V.  C'o;;('«",  .Jaiiics.  ."7:!. 

3  A:  4  Win.  4,  c.  27- 

Abolishes  writ  of  pai-tition  at  cnimnou  law. 
UCaiii  V.  Hoxiirman,  2  X.  S.  1)..  41:!, 

3  A;  4  Win.  4,  c.  27,  s.  2«  - 

Abolishes  writ  of  waste  as  a  distinct  f<irni  "1 
action,  and  the  action  of  waste  is  nnw  in  the 
form  of  an  action  on  tiie  case  for  damages,     lii 
I  an  action  for  waste, 

'      /'.  )•  Desliarres,  .T.— I  may  remark  that  thi>  i- 
a  form  of  action  which  has  hmg  heen  disused  in 
Kngland,  and  one  which,  so  far  as  my  kiinwloLf 
',  extends,  has  not  been  resorted  to  here. 

Titwi  It  al.  V.  .S'k/m  it  al,  3  N.  S.  D.,  4!i:. 


3&4Wni.  4,  c.  42,  s.  3- 

(Limits  the  right  to  sue  on  bonds,  or  to  iniii.' 
action  to  recovei  any  land,  to  twenty  y«u*> 
and  any  acknowledgement  to  take  the  case  'ii:t 
of  the  Statute,  must  be  in  writing)— 

This  Statute  had  not  been  adopted  in  il"' 
I  Province  (1863)  and  prior  thereto  it  was  in'Vtr 


l:5(U 


STATUTES,  IMPERIAL 


13G2 


1  Jfc-.»  Viet.  €.110- 

Fipiiiit'il  tlio  iiumU'1  fur  tliu  ))i()visiniis  relating 


neL'f>siuy  tliiit  llic  iiukiiuM  kHlgiiK'nt,  wliicli  Wiis 
til  relmt  tlie  presiiiiijitidii  of  piiyiiu'iil,  slioulil  hv 

111  \\  ritiiig.  tr)  ai'ii'st  III!  //ii  >//(  /ixirissiu  tlio  "  XfW  l'i'iicti(.'e 

Marliii  il  ul.  V,  llariif^  it  n/.,  1  Old,  3it;$.  ■  .\^.^  •'  f|f  jsi,-,;)   ^._  4_ 

M>-I)oimlil  V.  Fm-or,  .S  I{.  &  C,  '.'Mit. 


.{  X  1  Will.  4,  c.  42,  s.  28- 

I'liiiii  tliis  •Jiicl  I'.  S.,  I'.  8'J,  s.  4,  is  IxiiTowetl. 

•Jiiil  H.  S.,  t-.  S'2,  SI.  4,  is  preserved  at  page  .'?.'{ 
of  .\|)iK'iiili.\  A,  to  r)tli  R.  S.,  and  enacts — 

•■  I'/iim  111}  ih  Ills  III'  siiiii.i  iiiiijuhh'  lit  II  I'irliiiii 
h'liii.  III'  iitlii  rn-i'si'.  tlir  jiii'ii.  iitiii  till-   Ciiiirt 

ii'hi  I'r  tlii'i'i-  Is  iiiijili'il.  ml  till  li't'iil  III'  iiiiij  I'ssiii' 
'II'  I'll'lllisitilill  iif  ihliiiilijrs,  lllilil,  if  till  II  think 
III,  iilliiii-  iiiti  nst  J'rntii  till'  tiiili'  vliiii  siirli 
ilihls  III'  sums  I'li'tiiili  ii'ii'r  iiiiijiilili'.  if  siii'li 
ihhls  III'  Slliiis  III-  iiiiijiihir  III/  I'ii'tlli'  I  if  SI  I  III  I' 
ii'i'lllill   iustl'llllinit  lit  II  I'fl'lilin  fillir.  III'    if  l"'!l- 

./',/.  iiiliii'ii'isi .  tliiii  fi'iiiii  till-  linn  ii'lnii  III!' 
'Iiiiiiiiiil  iif  piiiiiiii'iit  sliiill  liiirr  liii-ii  iiimli-  III 
'i-riliiiij.  siliii  ilriivniils  ijirilHJ  imtii-r  In  llir 
,1,1, till'  flmt   iiili'i'ist    ii'ill   III-   rliiliiiiil  fi'iiiii    llir 

.l.llr    tin  , ■inf." 

;{  .V  4  Win.  4,  c.  4'2,  s.  "is,  imitaiiis  a  pro- 
viso declariiif,'  "that  interest  sliiill  he  ])ayiilp|i' 
in  iill  eases  in  whieii  it  is  now  payalile  liy  law,'' 
niiirli  is  oiiiitteil  in  the  Xova  Scotia  Act.  It 
Wiis  contended  that  its  omission  excluded  evei'V 
.use  not  within  the  Statute. 

//'/'/,  that  it  was  ini])ossil)le  to  ado])t  tiiis 
ciiiistniction,  which  would  ))ievent  the  reeoveiT 
"f  interest  in  a  multitude  of  cases,  which  our 
I,t'i.'islatuie  never  could  liave  intended  to  aliro- 
L'iUc.  rile  more  rational  construction  is,  tiiat 
tiie  jiroviso  in  the  Knglisli  Act  was  omitted  in 
iinr  Revised  .Statutes  because  it  was  tliouglit  to 
lie,  iis  it  really  was,  unnecessary. 

Interest  is  reeoveralile  on  goods  .sold  on  credit 
Imm  the  date  on  which  the  credit  expired, 
wjicic  sucli  is  the  nsage  of  trade  at  the  place 
»iii'ie  the  goods  are  sold,  although  there  may 
liiivc  hcen  no  jnevious  dealings  lietweeii  tiie 
piiitics,  no  engagement  to  pay  interest,  and  no 
miticf  under  the  Statute  that  interest  would  lie 
claiiiiiMl. 

Tiie  object  of  the  Statute  wa.s  to  extend  the 

right  to  recover  interest  to   those  eases  nien- 

tiiiiifil  in  the  Statute,  in  which  ])revious  to  the 

Statute  interest  cfinld  not  have  liccn  recovered. 

Ikinmrman  c(  al.  v.  Fiilkrtoii,  1  Old.,  "JW. 


n  A;  I  Vict.  c.  85- 

1st  Rev.  .Stats.,  e.  l.S.">,  "  Of  Witne.s.ses  and 
Kvidence  and  the  Prfiof  of  Written  Documents  " 
s.  11,  is  a  transcript  of  fi  &  7  Viet.  c.  !S.">  (l.oid 
Deiiiuan's  Act). 

L'lider  1st  Hev.  Stats,  c.  i.T),  s.  11,  a  party 
directly  interested  in  a  defence,  who  liad  iiulcm- 
nitied  the  defcmlant  on  tiie  record,  and  who 
stated  that  tiie  suit  was  defemled  on  ids  indi- 
vidual liehalf,  was  jicld  inconipeteiit  as  a  wit- 
ness. 

JohiisloHi    V.  /I'/v //f(/(,  , James,  14; 

/,'/(>>•.//  V.  Miir^liiill,  .lames,  .S.'iO. 

1  &  8  Vict.  c.  0«,  s.  3  - 

■•  Kn-I'll  ,l('l'.Siill  Hull'  liill'll.  Ill'  lll'l'lilftl-)'  tn  III- 
hiil'li  iillt  iif  Hi-)'  Milji-stifs  iliihlillinilS.  lif  II 
iilntlli-l'  liiillij  II  ililt ili'ill-liiii'a  snlijii-t  III'  till- 
r nihil  K illi/iliiiil,  sliiill  III-  nijiiililr  Iif  till,  iliij  Id 
liliii.  Ills  liiirs.  i-.i-i  rutin's  ur  uihiilliistl'iitni's.  ninj 

\cStlltl-.    I'llll    III'    jll  I'Slllllll ,    lllj    llll'isi-   III'    /llll'I'llHSI-, 

'  III'  iiilii-ritiiiii'i-  III'  sum  ssinii." 

Sii  ALIEN,  1. 
I     liiH  Vict.  c.  101,  .s.  3- 

I  It  is  enacted  Iiy  this  section  and  liy  S  &  9 
Vict.  c.  1(1,  s.  (i,  that  before  an  order  of  filiation 
can  be  made,  the  evidence  of  the  mother  must 
be  corroborated  in  some  material  particular  by 
other  testimony,  to  the  satisfaction  of  the 
.Justices. 

.Srd  R.  S.,  c.  !)!,  cf.  .")tli  H.  S.,  e.  '27.  has  to 
some  extent  adopted  the  same  principle.  It 
does  not  in  terms  re(|iiiie  corroborative  evidence 
of  the  charge,  but  it  permits  'he  reputed  fatlior 
to  give  evidence,  and  it  directs  in  sec.  !l  {sec.  H) 
in  5th  series)  that  on  appeal  "the  whole  matter 
may  bo  heard  and  triecl  by  a  jtiiy  as  a  civil 
action.''  Where  the  mother,  tiierefore,  an<l  the 
le'aited  father  are  both  examined  and  directly 
contradict  eacli  other,  and  tliere  is  no  sufficient 
corroboration  of  the  charge,  the  ordinary  rule 
to  some  extent  would  seem  to  apply. 

Onrsi.i rs  of  Poor  v.  McLillan, 

3N.  S.  I).,  9.-.. 


6  k  1  Win.  4,  c.  32-  I  &  8  Vict.  c.  112,  s.  15- 

Omiparison  of  this  Act  under  which  Ruilding  Is  founded  on  5  &  H  Wm.  4,  c.  19,  s.  1,">,  and 

^"oieties  are  constituted   in    Kngland,  with  12  was  the  model  for  .Srd  R.  S.  (\.  S.),  c.  7o,  s.  24. 

'  itt.  c.  42  of  Xova  Scotia  under  which  they  are  It  was  the  object  of  the  Legislature  in  pass- 

wnstituted  here.  ing  5  &  G  Will.  4,  e.  19,  to  assist  mariners  in  a 

Slaytf.r  v.  JoIuikIoii  it  nl.,  1  Old.,  302,  speedy  recovery  of  tlieir  wages,  and  for  that 


l.Sfi:} 


STATUTES,  IMPERIAL 


13(i+ 


piirpHse  to  givr  U>  Mii,i.'istiiitfs  a  simiiiiiiry  jiiiis-  puali'il,  wliiiOi  iirc  uiipli.Mlik'  U<  C.nxtiil.li-  and 

tiiotiim  when  the  (|iif»tioii  of  w ages  was  merely  otlier  siil">nliiiale  otlKeis.     Tliese  two  .s.m|i,,i,, 

ill  ilispute;   but  it  «as<   not  iutelHleil  to  eiialile  are  tlie  <.iij.'iii  of  "iir  law, -Jail  U.  S.,  e.  I.'.l,  >.iim 

tliciii  to  ileeide   upon  intricate  nuestioiiM  of   for-  as  .')th  H.  S.,  e.  I!»,  "Of  tlie  I'roteilion  ,,t  (  m 

feiture,  whether  aiisiiii.'  from  imimteil  ik'seitioii.  stahU-s." 

(lis(.heilieiieeof(,raeis.  or  from  any  oilier  eause.         ■Jml    U.S.,  e.   loll,  thoil-h    it   does  not   ful!,,« 

C-rtirlni  v.  AmhrsoH,  1  X.  S.  |).,  ;{s:..  hterally,  very  closely  pursues  11  and  I'.'  Vj...  ,, 

44. 


•2nd  1-t.  S.,  c.  l.'iU,  is  lu  produeed  in  ."nh  K.  >., 
,  Idl,  Ks.  V2  ■_'.")  iiulusive. 

Midtxijor  V.  Puii>v-^on,  1  Old.. '.Ml, 


11  k  12  Ylct.  c.  »S  - 

•M-a  II.  N.,  e.  !71,  ss.  !i!»anil    l(K»  (,f.  W.  S.  (  .. 
174,  ss. 'J.'iit  and  •Jlilt),   are  foundeil  on  II  an.l 
.'  Viet.  e.  7S. 
I'reviouH  to  that    Act  a  praetit 


;  JL'  8  Vict.  €.  112,  s.  11- 

(Wheii  a  ship  is  sold  at  a  foreign  port  the 
crew  must  he  sent  home  at  the  expeii.se  of  the 
master.  Or  whenever  the  services  of  a  seaman 
.«hall  terminate  at  any  place  ahroad,  the 
maste"-  is  reipiireil  to  give  him  a  certificate 
of  discharge,  and  hesiiles  his  wages,  either  tind 
him  einphiyment  on  hoard  of  some  other  British 
vessel  homeward  hound,  lU'  furnish  the  means  of 

sending  him  hnek  to  his  ,,ort  of  shipping,  or  istcd  where  any  ol.jecti.u.  was  taken  on  li,..  i,;,,, 
otherwise  provide  for  his  passage  home.  And  "f  a  .lefendant,  or  oecurrcd  to  the  .lu, Ige  ,„,  a 
in  all  cases  of  wreck  or  loss  of  ship  every  sui-  erhninal  trial,  which  the.ludge  deemed  w„rtl,y 
vivin.'  .seaman  shall  he  entitled  to  wages  up  to  "f  more  mature  consideration,  to  take  the  „,mi. 
the  time  of   loss,  whether  the  ship  shall   have    i-n  of  the  jury  upon   the  facts  proved,  and  f. 

1  1  f..  ;  ,i,f  ,.!•  ,.,,f    i.r,.vi,l..rl   that    reserve  the  (luest loll  for  the  consideration  ot  all 

iireviously  earnetl  freight  or  not,  (HON  Hit  II  mat  ,  -r    ,      i     i  ■  , 

Le  shall  pro.luce  a  certificate  of  the  master  that  Uie  Judges  :  and  if  the  .ludges,  or  a  ma,,nt.v  ..t 
h..  had  exerted  himself  to  the  utn.o.s,  ,.,  save  them,  were  of  opinion  that  the  oh,,ect,oi,  ,,the, 
the  ship,  and  car..,  ami  stores)-  ^o    the    indictment    or    the    evi.lence    wa-  w.h 

n,M     that    the    crew   had    no    right,   where    f""'"l-l   t'"-'   defendant    was   recmmeiidnl  ,., 
there  had  heen  a  salvage,  to  have  their  passage  ,  the  Crown  for  a  pardon, 
home  provided  out  of  the  proceeds  thereof.  ]  •  '  .'  -  i 

Milfim-oii  V.  ("'()»)( f(/i,  .lames,  .S7.'{. 

i     12  A-  13  Vict.  c.  10«  -  (Ensllsli  Bunk- 

8  i  9  Vict.  C.  10,  S.  «--  o    I      A  iiartv  cannot  attach  dehts  due  an  K.nghsl, 

.S'm    IAS  >ICt.  C.  101,  S.  i.    ,,.^„|.,,„j,;,^fi^^^,.ti,e„V,/of  l.aiikrui)tcyhasissue,l. 

/////  V.  (loo'lall,  3  Mur.l.  Kpii..  IW; 
Fm-^ir  V.  Morroir,  -J  Tlioiii.,  •J.'i'J. 


8  1-  0  VIct.  c.  80,  s.  »4- 

Kiiacts.  •■Hull  >i-h<ii  (i»i'  s"  I'fli-n  nx  (Ik  I'ro- 
pi-rhj  ill  ini>i  uln'ii  nr  vikkiI,  nr  ninj  jmrt  tlnnnf 
hihniijiiiij  til  innj  "f  III  I-  M'ijint!l'.i  sulOi'i'l"- 
shall,  iiftir  riijiMi-ij  thivifif,  '"•  .>"'/(?  ^.  niiij 
othir  nr  (ithirn  nf  Jl/r  -V<(./c.s7//".n  milijirts.  tUi- 
siiiiH-  shiill  hi'  iriiiiKfirri'd  hij  hill  <•/  >"''•  oc 
of  III  r  iii.itndHinit  in  vritimj.  i-nutniniiiij  a  rc- 
<:itnl  of  tin-  i-orlljh-iiti'  uf  niiixtrii  of  xiirli  shiji 
or  Vf'ssr-t,  or  tin-  prini'ijuil  cuntintx  thinnf. 
othrrifii'i'  siirli  triiiisfi-r  skull  mil  hr  rnltil  in 
pffi'i-tmil   fur  invj  jinrjioni- 

Itnr  iir  iijuit'l." 


12  &  13  VIct.  C.  106,  s.  182- 

Forhids  the  proof  of  a  deht  or  the  entry  uf  any 
claim  against  an  insolvent's  estate,  without  Hi-t 
reliiKpiishiiig  any  action  or  suit  hrouglit  ;,y  a 
creditor.  There  is  no  douht  hut  the  civilitiT 
then  may  make  his  election,  llut  neither  tin 
■Statute  of  1S(>9  nor  that  of  1H7.')  has  iutio.lnceJ 
this  provision,  which  would  seem  to  have  liteli 
,  recognized  hv  the  earlier  Knglisli  Statutes. 
^|■hl,tl■^■l■r.  ,Hh,r  in  ^.^^^  even  "this  .Statute  does  not  pn.vi.le  for 
actions  non-existing  a.     he  date  of  the  assign 


It  follows  from  the.se  wcids,  that  where  there 

I  meiit.  ., 

is  a  sale  it  must  he  followed  iiy  a  transfer  con-  |  Murray  tt  al.  v.  AVs,  '2  R.  &  C,  l-'-t 

taining  the  recitals  in  the  Act. 

Cullai  V.  MiFarlnm  d  al.,  1  N.  S.  1).,  4fiS. 


11  &  12  VIct.  c.  44  -  (Protection  of  Jus. 

tices) — 

Repeals  so  much  of  24  (ieo.  '2,  c.  44,  as  relates 
to  actions  against  Justices  of  the  Peace,  leaving 


12  A  13  VIct.  C.  108,  8.  33- 

15y  this  section  no  motion  for  a  re-hearing  <i' 
any  order  under  that  Act  shall  he  iwtiveil. 
when  three  weeks  shall  have  expired  afier  il"' 
order  complained  of  sliall  have  been  nimle.  h- 
a  case  where  the  order  of  the  Master  of  tla'  R"!'^ 


the  sixth  and  part  of  the  eighth  sections  uiire- i  was  pronounced  on  the 'ilst  of  Dec,  IS.h  »" 


l.'JOr.                                    STATUTES,  IMPERIAL.                                    l.MOO 

h;i^   111  It  iliiiwii  u)>  till  siiiiictiiiU'  iifU'lvvai'cls  iiijil  il<'  not  iipply  to  tlic  liiso  nf  |iii.icfiliiii.''<  nuMinst  i\ 

iiuticf  i)f  appeal  iiai)   licfii  t-civi'd  witliiii   tluti'  foreign  (•cpiiii)aiiy  carrsinL'  <>u   Im-iiii'^s  alnnail. 

wifk?"  afliT  the  diilei'  Was    ilrawn  lip,  Imt  ii'ii  Mtlici'  do    ss.   I   and    '_'  nf   ."tnl    ];.    S.   i-.    KU. 

witliiii   tliieo  weeks  from  the  time  it   was  pi'i-  part  II. 

imiiMied,   tlie  Lonl  Clialieellof  held   it   was  too  /,'«//(.///  v.  Si/ihi'  1/  <iiiil  l.miiJnirii  H'lid,.. 

lute.     "Aiiofder  of  tiie  Coiilt  of  Clianeeiy,"  lie  •_•  \.  s.  1).,  7;{. 
said.   "  iiowover  loiij,'  a  lime  may  elapse  in  the 

iiiiiii>teiial  duty  of  iliawini;  uj)  that  older  and  15  A'  10  Vlft.  f.  Ifi,  S.  1'2S  aiUl  121»- 
coiiiiriittinu;  it  to  paper,  is  made  to  hear  date  'I'hese  sections  were  the  model  for  >eis.  l.'i.'Jaiid 
nil  the  <hiy  when  it  is  iiioiioiiiued  hy  the  Court."  |;i4  of  3l'd  H.  ,•>;,.  e,  \:\\.  W'jiilst  the  Kngli-h 
'I'lie  order  must  Ke  eoiisldeieil  as  made  when  Aet  emlio.lied  t  he  provisions  of  JUu.  ( ieu.  of  tin- 
it  is  ilelivureil.  K.  11.,  ('.  I>.  and  K\eh.  U.  T..  lehitive  to  the 
l'„nlo„   V.  /;»*■-/..•-'  I!.  \C..:U!t.  j.^.^.j^..^,    „f     j,„|^„„.„„   ,,f    ,„„,,,    ,!,.,„    ,„„    ,„„i 

fifteen  years  old,  and   whilst   the  enaelnieiit  of 

VMi  14  VICf.  C.  03,  S.  04  -  that   rule  stood  prominently  hefore  the  eyes  of 

••  .Vo  si-diiuni   I'-li"  is  I  iniiiiiril  fur   II    rniimii  our  legislators  when  legislating  on   this  partieii 

(n-  I  iiijiiijiiiinit  I'-liiili   is     til    Irriiiiii'ih     ill  tlir  I'll'  suhjeet,   our  legislature,   copying   word    for 

/■/(//'■''     Kiiiijihiui.    slmll    '.<     iiililUil   In    sue  wold  the  provisions  of  the  K.nglish  seetioi>aiiove 

III. , •mill  fi,r  ii-iiijis  ill  ini'j  Ciiiirt  m-  l,if,ii-r  •m:/  mentioned,  has  thought  |)ro])er  not  to  adnjit  into 

.luslii-i-.  liiiJiss  hr  is  ih'srhiiri/ril  ill  tin    in, nun  r    0111  Statute  ) k  the  ])rovi.-,ions  of  .sertion  i;U, 

ri'jiiiriil  III/  Nil    ■■  tiiiiinil    Ml  rrlnnil  Sriiiiiuirs  wlih-li    expressed    the    rule    ahove    referieil     to, 

,1.7."     iiikI    ii-ilh    till-    ii-riffi-ii    riiiisiiif     >,/    Ihr  l-'nmi  this  eireiimstanee  we  eaiuiot  hut  infer  that 

„t'istii\  III-  //cores  siirh  HI  iisiioi-  "ti  Ihr  /"irf  nf  "I  "'>•*  tin'  intention  of  our  legislature  to  impose 

till  hiuslir.  nr  hi/  his  iiiillini-ilit.  IIS  In  irn m' II I  ""  •'"•'•  "f  'i"ii'  ""  t'"-'  t-'xeivise  of  the  right  eon- 

r.iisiiiiiilih-  iiii,irih''iisinii  n/iliniiirrtn  thrii/'  nf  fi'ifed    l.y    sv-aion   i:U,  relatively    to  ol.taining 

surh    xiiimiin  liii  frhxiitiiiiii  en    liniiril:  Imt  if  e.\eeutinn.s of  ii  .judgment  in  the  mode  preserii.ed 

(I  inj  Kill  mil  11  nil  his  Viliini  In  llii      I'liiliil    Kili'J-  "y  ''''■"   ''I'l'tlon. 

*'..)/(  jirni-is  thill  Ihi   iiiiislir  nr  iiinnr  hiis  hnu  Cratu    \.  .far,,l,<.  |  N".  S.  I).,  |,S7, 

ijiilllil  nf  miij  fniiiliirt  nr  ilifnill.  I'iiich.  Ii'l   this 

1  liiliilllilll.     Ii-nlllil    lini-r    I  lititliil    thi     Sl-iliil      ■/    In  15  A'   Ifi  \M,  ('.    «0,  S.    130  — 

sin   fir   I'-iii/is  liifnri    Ihr   ti  riiu'iKitinii    nf  ,iii  i4t!,  K.  S,,  e.  !t4,  s.  l(Mii|.  \,  is  identical  \\  it  h 

Vinliiili'  nr  iiniiiiinin  III.   hi-  slnill   In    i  iilith  il  In  this;  -- 

rifiifir  ill  nihlitimi  (n   his    n-nijis.    Slirh  iniiiinii- 

siitinii.     lint   i.i'rriililiil    .£'JI),    iis    Ihr     CnlU't    nr 

Jiisliri  ,     hiiiriinl    Ihr    riisr.    iiimi   think    rnismi- 

iil.l,  ,- 

Where  sliipj)ing  articles  were  in  the  lollowing 
til  111.- :  "From  London  to  any  jiort  in  Spain. 
thence    to    Newfoundland   and     I'.ritisii     North 

.\,Mciica,    United    States.    \Vest   ludies.    M.-di-  ^.    ^    ^^    ^.,^.,^  104   -  ( MerCliailt    Sllip|llllS 

tci  laiiean  ami  ( 'ontmeiit  ol   Kurope.   hackwards     •    .     iq-i> 

iuni  forwards,  in  the  prosecution    of  the  New-  ...       ■        ■            ,,                 i      .         .,  ,.;  „  ,i    , 

'                 '  i  racing  .t  up,  there  can  he  no  r|iiestlon  that 

fc.mdland  trade,  an.l  hack  to  the  li.ial  port  of  ^^.,_^,^^  ^^^.^  ^^^  ^,^^^_^^,  .^^^^^  .,,,,,,,„(„„,   j,  ,,-,,,  t|,., 

di>,  harge  in  the  United   King.loin,   such  voyage  ,,,,,^.  y,^..^^^^,.y  ^,t  i„  f,„,,,. 

not  to  exceed  two  years.  ^j^j_^_.^.  _^f  j,^^  ^.,^^,.^^^^^  enactments  relating  to 

ll.hl,  that  the  .seaman  couhl  not  sue  in  the  ,,.j,i,i,^,tf„„  „f  ,,i,i«  .,f  .^^es  of  ships  from  their 

\  i.e-Admiralty   Uourt,    not    li.ivmg    heeii    dis-  ,jrst  origin,  give,,  and -liscussion  at  great  length 

iliaiL'ed  as  directed  liy  the  '"  (Jeiieral  Merchant      r  .,     .    i.         .   i   ,  ..  » ,-   ,,  ,  f  .i       \  ,, 

oi  the  jiolicy  ami  construction  ot  the  Act. 

Nuiiiaii's  Act.  Thetitle'to  a   IJriti.sh  ship  is  not  atfecteil  hy 

Dak  V.  Th,  Shiji  Vilorili,,  .lames,  :m.  ^,,^,  ,,,.,;,.,.,,.  „f  ,,  „.,;,  „f  execution  to  the  Sheriff 

against    the  owner  of  the   ship.     Nothing  will 

15  &  16  Vict.  C.  16,  SS.  II  and   18-  iirtVct  such  title  except  registry,  ii8  reiiuired  by 

These  sections,    to    which  ."nl   H.  S.,  c.   l.'U,  the  Merchant  .Shipping  Act  of  I.S."(4. 

I'iirt  II,  SS.  1  and  2 correspond,  were  introduced  Cdhonii  it  al.  v.  Morroir,  I  Old.,  14S. 

H."  a  sulistitute  for  the  (dd  jiroceedings  to  out- 

luwry  which  could  only  he  against   natural  per-  Disiiualiries   aliens  from   having  and  holding 

SUMS.  iiny  share  or  interest  whatever  in  a  British  ship. 

Sections  IC),  l.S  and  lit  of  l.">  ct  l(i  Vict.  c.   Tti,  Plaintiff,  heiiig  an  alien,   purchased  from  A. 


II  A  ISVIct.  e.  »1- 

One  of  the  Acts  regulating  the  right  and 
ainoiint  of  tolls  to  he  taken  for  goods  and  trat'.v 
on  railways. 

Jkii/soii  V.  1 1  mini  Trunk  li'ij  Co., 

•1  N.  s.  1).,  4(is. 


:V>7 


STATUTES,   IMPERIAL. 


i;{tis 


S.  ciiic  fdiirtli  lit  till'  M'licMiiur  Aiiuoiiiiihi.  The 
imii'licisi'  iiiiiiK  V  wMfi  piiiil,  liiit  tliiTc  NViiH  nil 
t'linlract  in  writiiiL',  nnv  wiis  iiny  liill  nf  salt'  nr 
IransfiT  I'Vir  ilcniamU'il  liy  ]ilaintiH',  lnit  it  was 
agieeil  tliat,  in  tliu  I'Vtnt  of  A.  S.  (wIki  wan  still 
to  111'  I'diisiiluri'il  sole  owner  as  ri'^'aiili'il  tliiiil 
putii's)  si'Uinj.' tlie  tlirt'o  ri'niaininn  fourths,  he 
shoulil  also  si'll  till'  plainlill's  fointli. 

A.  S.  Iinvih),'  ilii'il,  his  cxi'i'iitins  suM  his 
intiTcst,  lint  iliil  not  sell  that  of  ))liiintill',  who 
then  liroii,i.'lit  thisaetion  for  lireaeli  of  tiie  ai,'rei'- 
int'iit. 

11' III,  ti  at  iilaintitf,  as  an  alien.  Iieini;  'lis- 
ipialitieil  from  taking  a  liill  of  sale  oi'  tiansfi  r  of 
a  r.iitisli  vessel,  uniler  17  &  IS  Viet.  e.  Iii4, 
an  1  the  ai;ieenient  sneil  on  liein^r  an  atlenipt  to 
evaile  the  Statnte,  eoiiM  not  lie  enl'oiceil. 

Ciilfni   V.  JfrFarldiK   ■fnl.,  1   \.  S.  1).,4(JS. 

//'/'/,  tlial  the  ligilt  of  nimlel'ately  eolieetilig 
anil  tlogging  a  scatnan  was  not  taken  away  fi'oni 
the  master  liy  'JOco.  '2,  e.  'Wl,  or  17  't  IS  Viet, 
e.  1(14.  The  power  of  the  master,  so  far  as  it  is 
necessary  for  jiieserviiii;  the  due  sulioriliuation 
of  till' erew  ami  the  ilisei])line  of  t)ie  ship,  has 
not  lieeii  aliroL' ited  liy  reeent  enai'tments, 

(loi-'liiii   V.  t;r,ril<fii,    I   X.  .'■i.  1).,  Sit. 


II  A;  IS  Vict.  f.  104,  ss.  IS,  38,  ;W,  .»«, 

102  ^-  103  ^ 

It  follows  from  thesi'  seetions,  eoujileil  with 
others,  that  no  nni|ualitieil  jierson  or  limly  of 
|)ersons  is  entitleil  to  any  le;.'al  or  lienetieial  in- 
teiest  in  the  shi])  or  any  share  therein,  ami  that 
no  niii|iialilieil  ])erson  may  aei|iiiie  anyeipiity  in 
respeet  of  the  ownership  of  a  liritisli  ship. 

Theie  is  lint  one  way  liy  whieli  a  person 
Ipialitieil  til  lie  can  hecriine  an  owner  of  a  IJritish 
ship  miller  this  Act.  ami  that  is  hy  a  transfer  or 
Iliil  of  sale  inaile  ainl  execiiteil  in  the  !"■  .m  pre- 
seriliecl, 

Ciii/ni   V.  McFnrhuK  >'al.,  1  X.  ."<.  1).,  4SI ; 
(IfHiil  V.  liohirfsoii,  '2  X.  S.  1).,  1^47. 

n  k  is  Vict.  c.  104,  p.  10»- 

(4lh  R.  .S.,  e.  !(li,  s.  ;{],  7.  /•.  is  foiimleil  on 
this)— 

Certificate  of  registry  of  I'ritish  ship  must  lie 
receiveil  as  /irinid  I'ncii ,  or,  as  our  Statute  ex- 
jiresses  it,  as  presumptive  proof  of  all  the  mat- 
tei-H  containeil  or  citeil  in  such  registry. 

Siiii'li  V.  Fiil/f)H  If  (il.,  •_'  H.  a  ('.,  •22."). 

Makes  a  eertitieil  copy  of  the  register  of  a 
mortgage  /iriiiia  farli  jiroof  of  all  the  matters 
containeil  fir  reciteil  in  such  register. 

Oxh y  V.  Sjiiarird/ir,  I  X,  .S.  ]).,  ]),  l."(l. 


II  ii  IS  Vict.  C.  104,  s.  189 

The  Ailmiralty  Court  has  no  jurisilictimi  in  a 

suit  to  leeover  seaman's  wa^es,  unless  the  siiiii 

claimeil  amoimt  to  ai  least  tifty  iiouiuls  stei  liii::. 

/)il/'    V.    '/'/(•   Shijt  ViUirilij,  .lames,  ;!!ili. 


II  Jk  IS  Vict.  c.  104,  s.  101- 

.Any  legiil  claim  of  master  for  his  wages  wni.M 
miller  this  section  constitute  a  maritime  lii  11 
oil  the  ship. 

O.f/i.V  V.  S/nai-ii-'if,  r,  I  X.  S.  1).,  p.  ||;i. 

II  &  18  Vict.  c.  104,  s.  iftO 

"  ll'lf  III  '•'  ;■  (iiii/  -iliiji,  ii'hi  '/(I  /•  (I  "iKiiii'  r  or  n 

■■'iii/iini  s/iip^  jii'Oi'i  iilhlij  ill  ('III:  iliri  I'liiiii,  iih'li 
(Hint III  r  •ilii'/i,  irhiilur  nnlidimr  or  iiiiHiiii  ''''/'. 
j.riiri  I  iliiiil  ill  fiiintliir  ilirirtloii,  so  Ihiil  if  I'^ili 
.sliljis  in  ri  >o  roiitiiiiii  /III  if  n  ■i/iir/ii'i  roiirsi  ^  iln  1/ 
iroiilil  /I'l-"'  10  iii'irfi-i  lo  iiiriilri  /lii  rixk  Ol'iiiii/  'd'- 

lisiiill,    llli     ht  llil.<  iifhiilll    n  .«■>. /x  v/iri//  '11    jflll  td  iiln-l 

\o  d'i  lit  /id.-^i  III!  /Ill  jior/  litli  dl'  iiirli  dflii  r,  mill 
/liis  riili  ^lidll  III  olii  j/iil  III/  nil  .itrdiiislii/,.i  dial  hij 
dU  ■idiliiiij  ■■<lii/i-:,  irlii  Uii  r  on  fill  jorf  nr  .</((, '.ivi,./ 

fllrh,  dilil  irhi  III!  r  rliiii  lldlll'il  orliof,  )(;)/'>>  '/|. 
rirriiiil-ifiliiri  .1  of  III'  rd'<i  d ri  xiirli  d"  fo  r' ml' r  n 
ill  jid riiiri  j'rrnii  flii  riili  inn ■■"'dri/  in  oril' r  '0 
iiroiil  iiiiiiii ilidfi  ildiniir,  'iinl  xiihjirf  dlio  in  '/ii 
jirori.10  llidl  iliii  ri  ijiiril  -hull  III  li'iillollii  iliiinir^ 
of'  lldrii/dlioii,  dllil  f(<  ;■';/((/•'/■<  ,<diliiiil  s/ii/im  oh  'hi' 
siirrliodril  iitrl'  ■•/o.<.  hniilnl,  in  ilii  bijilin/  -"•■// 
•i/(///<  iiiiili  r  inmnmiul." 

To  a  charge  of  violating  this  sertimi  thij 
answer  was  niiiile  that  it  Wiis  not  only  pi'iipei  'n 
starlioanl  the  helm  muler  the  circmustain'cs,  Imt 
the  only  emirse. 

III  III,  that  the  o//"--  jirnhiiinli  was  on  tlu' 
vessel  making  the  cliarge. 

Tin  Conlili'i  ami  Tin   Os/in;/,  1  CM.,:?.'. 

II  A  18  Vict.  C.  104,  s.  201- 

'•  '/'lint  iri  rif  xtiiiiiisliiii.  ii'lirii  iiiiriijiiliioi  'i 
linri-iii-  rliiiiiiitl,  .ilinll.  ii-hcinrii'  it  is  so/i  ninl 
jtrortiriilili'.  kfi  i>  til  Hint  siilp  nf  till-  fiiii'-ii'n;! 
nr  iriinl-rlliunnl  vhirh  lii-s  iiii  till'  stin'^mii'd 
siilc  nf  snrll  xtiniiisliip." 

Xot  neci.'ssary  to  imperil  steamer  hy  kee|jiiii,' 
to  starlioanl. 

Till'  i'lirihlin  niiil  Oxjiroij.  1  OM.,  ji.  7711. 

II  and  18  Viet.  c.  l-'5,  ss.  85  and  80 
(Common  Law  Procedure  Act)— 

These  sections  have,  lieen  partly  re-enacli.il 
here.  The  jiroviso  in  sec.  8(i  was  purposi-ly 
oinitteil,  anil  the  whole  character  of  the  two 
legislations  is  essentially  ilitfereiit.  By  the  Act 
of  lS.'i4  the  Courts  in  Knglaiul  hail  power  to 
strike  out  any  eipiitalile  pleatliiig  where  il  cmilil 


1  ••!')()                                  STATUTES,  IMPEIUAL.                                  1:370 

lint  !„■  -Lull  «iiii  i,y  a  c.iiit  „i  i;.u.    wii.Tius  |o  1  'iO  Vlct.  f.  »»,  s.  3    (Mt'rt'aimii'  Law 

ciiii  Aol  c.f  |,S,V>,  c.  •_'.■),  iilpulisliiim  lliu  CliaiiLoiy  Amendment  Act  of  18561  - 

C'lllll  luft  tllL'  liilltil'S  l|(i  nlliel'  liUl   tills  ('uilll   ill  ..  \-              •   ;                     .     ;             i    i 

I  ....V             witi                                  111  ••  .\ii  !<pniiil  /iitiiiii.^c  fo  he  iiiililr  1)1/  mil/  /ursiiii 

«  liidi  jii.tic.  cniM  1„.  .l.me.     In  I  S,-,;t  ..,„  L..gi,s.  ,„y,,,  ^/,,,  ^,„^,  ■  ,,^  „,.  ,;^ -^  ^j,,,  ,,^  ,^^,  ,„M,or»/,A.  /o,- 

lit  lire  |.ass.,.l  l(i  Vi,n.  c.  7,  ii.itl...,i/i,ig  t.,|uital.le  ,/,^  ,/,,4,^  ,/,,,;„,/^  „,  /„Mrwrt,/y,-  o/'  miollnr  /icr- 

ilir.iices  II.  ..jectiiuMU.     In  Ki.gl;  •,.!,  fop  tlu'  vofy  ,„,,^  ,,„  •  „^  „,   ,,.,  •,,,,,^  ,„,,/  ,,;^„;„/    ',,  ,/,,,  ^„„.,,^  ,,^ 

ticliniLiil  ri'iioiin  that  tlici't'  iiri'  no  |)k'iulin''.s,  it  i  ,     i  ...  .„i   ii    .    ,.ii       ...           .;   _                ; 

'              -  '  lie   c/iiiii/eil   tlierciritli,   ur  su/iir  o/irr  /iriatni   hi/ 

li.is  liufii   liclcl  that  Mil  ciinitaliU'  ilt'tViicu  cuiiiol  i        ,i           i    i      ,■  n        ii      •     i     i    n  i     i          i 

I                 .>  .1,111  L, Mill  Iniii  tlii'iviiiito  unriuUji  tiHlhonze(t,!<li(ill  Iw  iltiiiiril 

'        _"^     "^      '  .  iiiiiil/d /u  Kii/i/iiirt  nil  ii(/iuii,siiil  ur  ut/irr  piodti/ 

Itiiiil:  dl' Stifii  Sniilii  V.  /■'I'riii'iii  ''  «'..  ■      ,      I            ii                   II               I 

'  iiiij  to  v/iiii\i/i'  t/ii'  /icrnuil   III/  ir/iuiii  siic/i  /ironilst 

■'  ■  ■  '  ■chilli  liiii-r  hcfii  iiiii(le,bij  re  isoii  vii/i/  t/iiil  t/ii-  loii- 

liihrntiuii  for  kiic/i  /irutiiine  dues  tiot  a/i/witr  in 

&  IW   >ICl.  f.  il,  S.   »1  —  irriliiii/,ur  III/  necesufiri/  iiil'creiice  fruiii  <i  written 

I'l  r  S\y  Win,  \'oiiiig,  ('.  i),  — This  section  1,'ivo.s  instniiiiriil." 

jiuisiliftion  toany  Coiiit  ofJnsiicuiii  iliiMajfs-  li,  ;inl  H.  S.,  v.  lis,  s.  .'{,  wliicli  sfLlion  t..i 

ty  >  (loiniiiioiis  ovfi   any  liiitisli  ^<lll)juL•t  charged  pespond.s  with  .'nli  It.  S.,  v.  Ill,  s.  :>,  thu  ollirt  ot 

with  any  ciiiiif  or  (itioiLJi.'  on  hoard  any    l!riti<li  |<|  jt   •_>()  Viot.  c.  HT,  s.  .'{,  was  .sonu'hl  to  \)v  in 

.•"liip  on  thf  high  sfus,  Of  in  any  foirign  iioit  or  ,oipoiatoil   l>y   adding  lliu  following  proviso  to 

''"'""'•  s.  :<  :   "  I'liniiied  nhnii/n  tliut  it  slndl  not  be  neces- 

."i'l  \-  ;{l    \'ii,l.  c.  •_'».  s.   1,  shows  the  disposi-  .^,„i/ iJm/  nuc/i  tii/revnient,  nieniornndnni  or  note 

tmii  of  thf  IiiiiR'iial   I'ailiaiuciil   to  cxtfiid  still  s/i,dl  s/ieci/i/  the  euimderntion  n/ion  ir/ile/i  if.  ini.i 

fmlht'i'    the    jurisdiction    of   such    Coiu'ts,   and  i/ictn." 

thnutoi-L'  I  am  of  opinion  that  the  power  of  this  'I'lii^  proviso  was  (.mitled  in  the  fourth  series 

(niirt  to  give  judgnienl  on  the  defendant's  i -  ;,,|,l  l^s  lieeii  omitted   in   .'nh   K.  S.,  e.  HI,  s.  .">, 

vi.'tioii  for  a  niisdeineanor  eaiuiot  Ke  siieeessfully  ;,,id  section  (i  of  that  chapter  is  almost  identical 

»^^''i'i^^'''  with  I!)  1.V  L'd  Vict,  c,  U7.  s.  ;{. 

I'or  facts  of  ease,  V"  CKIMIXAL  LAW,  i>.  I'lie   consideration   for   m.iUing  or  giving  the 

Onnii  V.  Mar'rii    li  \.  ,s.  1).     p_>4.  special   pidiiii.se  or  agreement  iiiiist  lie  set  forth 

in  the  ])leailing  aiiil  ploved  at  the  trial,  notwith- 

1^  A  i[\  vid.  c.  ;{«-(f.  r>(ii  R.  s.,  c.  «'2  -  -'^^i"i'"y  "'^'  '^t^'O't^'. 

(Iiir  Act   ot    ISIrJ,  repealing  that  of   IS(il   and  ' 
li'iiiiing  chapter  I  111  of  .'{id  1!.  .*>.,  is  taken  from 

In  \    111    \'icl.   c.   .•{(!.      h    is   simpler,   however,  IS  A'  1«  VICt.  C.  U»- 

laid  omits  .some  of  the  provisions  on  which  scv-  I'laintitr  lnoiighl  action   to  recover    ilaniages 

c:-  d  cpicstioiis  have  arisen  in  Mngland.     The  tirst  for  injuries  caused  to  her  luggage  on  defendant's 

section    of  the   Hnglish   Act,  giving  twenty-one  slcamshii),  in  eonsc(iiienee  of  the  lireaking  of  a 

days  for  the  registry  of   the  hill  of  .sale  (which  dummy  or  sidediyht,  which,  although  not  con- 
eur  Act  does  not  give),  makes  the  unregistered  ,  structed   acconling  to    the   latest   patents,  was 

I'ill  of  sale   "  null  and    void,  to  all  intents  and  ,  such  as  liacl  lieeii  in  use  for  vessels  of  that  class, 

imiposcs,  as  far  as  regards   the  pid|perty  in  or  The  ticket  for  the  ])assage  was  issued  iimler  the 

right  to  the  possession  of  any  jicrsonal  chattel  Imperial   Act,    1"<  iV:    l!l\'ict.   c.   IIJI.  which   re- 

CHiiiprjsed  in  such  Kill  of  sale,"  while  our   Act  i|uiied  e 'iidilioiis  forming  part  of  the  contiact 

iiieiely  postpones  the  operation   till   the  tiling,  to  a])])ear  on  the  face.     On  the  face  of  plaiiitili's 

(lur  second   suction,  again,  is  framed  as  if    \\c  ticket  was  a  direction  to  "  .see  hack  of  ticket," 

liiid  adojited  the  expressions  "  null  and  void  "  ill  and  on   the  hack   was  printed  a  condition  that 

.In  lirst,  and  our  ninth  section  gives  the  mean-  defendant    was    not    to   lie    responsilile    for  loss 

iiiL'  of  the  words  "ap])areiil  possession,"  .so  well  resulting  from  shipwiei'k  or  disaster  of  the  seu. 

known  in  hankriiptcy  law,  and  used  in  the  tirst  The  carpenter  swore  that  he  had  examined  the 

.■section  of  the  English  Act,  hut  omitted  in  ours,  dunnny    every    day    liefore    the   day    w  hen   the 

It  is  to  lie  noted,  also,  that   the  lirst  section  of  injury   was  discoveied,  and   had  seen   it   at  ten 

lliu  Act  of  I.Stil  and  of  the  Hnglish  Act  siieaksof  o'clock  on  the  iiiorniiig  of  that   day.      The  only 

mi  assignment  for  the  lieiietit  of  the  creditors;  evidence  of  negligence  on  his  })art  consisted  of 

I'lit  our  Act  of  18G'2,  in  the  tirst  section,  inserts  unsworn  statements  of  the   captain    and  other 

till-   words    "general    lienetit."     'J'he  same  dis-  officers,  as  testified  to  by  one  of  the  witnesses, 

tinctioii  is  formed  in  the  clauses  of  exception—  that   the  ilamage  had  heen  caused  I ly  the  ncgli- 

M'ltiiinOof  our  Act  and  section  7  of   the   Kng-  genee  of  the  otiicer  whose  duty  it  was  to  visit 

lisli.     See  ASSIO'MEXT,  I.,  ><•  and  in.spect  the  htggage  room. 

lilinl:  v.  .S'«i'7/( ;', '2  Old.,  1.  Hi  Id.  that  the  jilaintitr was  lioiind  liy  the  con- 


i:57l 


STATUTES,  IMPERIAL 


l:}7: 


ilitimii,  and  tliat  tliu  vonlitt    fni'  pliiiiititr,  bascil    cliiim   or   iltiMiiinl    innvulilo    iiiiclcr    liiuikriipt  h 
ii]iiiii  ilic  iiiiiK'i  ttit  cciiistruc'tidii  (it  iliu  (luiimiy    luiiikriipti'v)  - 

iiud   tlie  iu')L,'lij5'Liue  of  tlie  (k'tViicliiiil'H  si'iviiiit,         //(/(/,  llmt  the  mdw  tui'  iliscliaigi;  was  -utti. 
must  liu  sft  iL>i(li'.  cit'iit evitleiKuipf  tliu  iMiiikniptcy,  iiml  that  \iliiie 

cli'fciiilaiil  .-liowcil  tliat   the  dflit  tcir  wliiili  lit- 

'20  ic  21  Victi  C.  S5 —  ^^i^**  ani'sti'il  iiluliT  laiiias  in  Nova  Suotia  w.is  ii 

Sfo.  •_'!  ipf  this  Ait  coiTL'siHmds  with  «rs.  1,    «li'l)t   "  jnovahlu  umler  liiu  l.ankniptoy,"  ii.' u,.s 

•_'.  ;t,  4  and  .">  of  4th   1!.  S.,  c.  Mi.      Sees.  S  and  II    fiititli,'.!  to  lie  discliaiKiMl  from  arrt'.st, 

ni  .mr  Act  are  identiod  with  .■.  IDS  of  -.M   .t  •-'•_'  -^l'""  "■■-  ■'>"i"l'<  -  t»l'l-.  -'i--^- 

Vitt.     Sec.  Ktof  our  Ait  is  same  as  !l  of  -1   vN: 

•.-.'  Vict.   e.  IMS,  and  see.  1 1  of  our  Act  with  see.  ',      24  &  25  VICt.  C.  134,  S.  203  - 
Id  of  last  named  Knj^Usii  Act.  (Proof  of  petitions  and  other   proeeeilinys  in 

Siiirlnlr  V.   ll'aL\H\lil.  1/  a/.,  1  1 1 .  .>C  <  i . ,  4(i.").    liankrnptey)  — 

Same  evidence  snlhcient  in   Xova  Scotia  as  it 


.V' 


5th  R.  S.,  (N.  S.),  c.  8tf. 


Westminster.  Jf  not  under  s.  '.'(J.'tof  above  Act, 
then  under  ;^rd  K.  S.,  e.  l.T>,  s.  I'S.  (Same  ,is 
5  R.  .S.,  e.  KIT,  s.  ;5.) 

^Jua^:r^,  wiiether  the  words  "  «/i  Coiu's  n-lint- 
nrr,"  which  oec\ir  in  tliis  section,  are  conipru- 
liensive  enough    to   inchule   the  courts  of  the 
Nova  Scotia. 

MilU  V.  Smilli, -2  Old.,  .T.N. 


24  VId.  c.  10-(Extcn(Iliis  Jurisdiction  of 

Admiralty  Court)  — 

'I'wo  out  of  three  proniovents  sliipped  at  l!er- 
nnida   on    Imard    tiie   sliip   lilielled,  a  lilockade 
runner,  for  tlie  round  voyage  from   I.ernuida  to  ^^^^^^^^   .^^  , 
Wihnington,    N.    C,    and    tjience    to    Halifax,  j   "^ 
N.  S.      The    remaining  pvomovent   shipped    at 

Wihningt.m  in  ro.m.  of  one  of  the  others.     No  '      ,^.  ^  .^^  ^.^^^    ^^         ^^  .^  _ 
ship's  articles  were  signeil,  but  tliere  was  evi-  ,         .     , 

,lence  to  prove  that  the  n.aster  had  contracted  ■      It  is  declared  that  the  expression  '  bemlK.:.! 
to    my    to   each    of    the    pr.m.ovents    ,,,tain  :  interest,-  whenever  used  .n    I'art  II.   ot   \,X 
specified     smus,    in    three    e,,ual    i„.ta!n,ents.     I«  Vict.  c.  104,  includes  interests  arising  mM.r 
The  contract   was  absolute  as  to   two  of    the  ,  contract  and  other  e-iuitable  interests, 
instalments,  ami   as  to  the  third,  there  was  a|  .SYc  SHIPPINti,  71. 

condition  that   it  was  to   be  paid  only  if  the 
claimants'  conduct  were  satisfactory.  i      -'5  k  M  VIct.  C.  8»-(EngIlsll  Jolllt  StOCk 

//'A/,  (1.)     Tiiat  this  was  not  an  ordinary  en-  i  Companies  Act  of  1862)— 
,Mgemenl  for  .seamen's  wages,  but  a  special  con-  ,      The  Dom.  Act,  'M  Vict.  o.  49,  authorizes  tl,u 
f'  Secretary  of  State  for  Canada  to  grant  a  hccii-e 

'(•2.)  That  previous  tot  he  A.lmiralty  Court  Act  l"  a  company  duly  incorporated  un.ier  the  laws 
of  l"s(il  -'4  Vict.  c.  10,  tiie  High  Court  of  Ad-  -f  <:iL':a  I'.ritain  and  Ireland  for  the  puriK.se  .,t 
niiralty'had  no  jurisdiction  over  such  cmtracts.  lending,  to  transact  business  in  the  Dominmn. 
(.•{.)  Tiiat  this  Act  did  not  extend  to  tiie  Vice-  Foreclosure  of  a  mortgage  sought  by  a  coiiiiMiiy 
A.lmiralty  Courts,  nor  were  the  provisions  re-  registere.l  under  lV.  it  -M  Vict.  c.  S<t.  and  chiiiii- 
pecting  special  contracts,  embraced  in  its  tentii  ing  to  <lo  business  here  under  HI  Vict.  c.  4!Hl).) 
section,  extended  to  those  Courts  by  the  Act  of  |  Stc   MOKTO.iliE,  ''7. 

ISU.S,  •.'(■)  Vict.  c.  '24,  sec.  10.  ! 

Tfit  Cif>i  of  r,.iu:sl.H,y,  1  Old.,  814 ; .     25  &  20  VIct.  C.  89,  s.  35  — 

V.  A.  D.,  1.        l>n)vided  Uuil  "  1/  lilt  itaiiK  o/  (1)11/  j><  /-"Oil  i<, 

irillioiit   ■iiilil'-ii  iif    rail"!-,    I  nil  nd   ill    or  oniiU'd 

A   collision  occurred  inside  Halifax  Harbor,     f^.^^^^  /f^,    r<iii<if.r  of  iinni/n  i-<  <>/  (iiiij  '-oinimij 

and   therefore  within   the  body  of  the  County    „„,/,,.//,;.<  Art,  or  if  ilifaiill  is  iiuuli-  or  uiiiwi^"- 

of  Halifax.     The  defendant  put  in  an  absolute    ^„,.y  ,/,7„y  ,^^|.,,.^  j,i,„.,  /,,  ,  ,il<  riiKj  on  Ih:  (■';/('*-■ 

appearance  witiiout  protest  or  declinatory  plea,    //^,.  yj„.^  ^y  „„y    j,trson  hariii;/   cmieil-  to  In  a 

but  the  ipiestion  as  to  the  jurisdiction  of  the    „„„,/„^  g/  Hit  romiiaiii/,   the.  person  or  mnnhf 

Court  was  raised  by  iiim  at  the  hearing.  «;/;/>•/<  rtil,  or  uuy  m<ml>tr  of  the.  romiiaiiy,  ortk 

Hi  III,  that  under  the  Statutes,  '-M  Vict.  cap.    ,.o,„^,f(„y  ilstif,  umij    .     .     .     hy  motion  in  uii'J 

10,  and  '20  N'ict.  cap.  "24,  the   Court   hail   full    ,,^-  //,,.  ^^fajisty's   Sii/iirior  Courts   of  Lau-  w 

jurisdiction  in  tiie  matter.  J-Jfjiiity,  or  hy  ajiiiliralion  to  a  ./(«/;/<   ■litliinj  ni 

Tilt  W'anlil,  \'.  A.  l).,M.    Chumlurs    .     .     .     n/ij/fy  for  an.  onln-  of  iht 

Court  that  the  rnjistir  iimy  he  nttilinl.'' 
24  k  25  VIct.  C.  134,  S.  101—  Per  McDonald,  C.  J.— This  summary  process 

(Order  of  discharge    relieves  from    a   debt,  i  is  not  available  here  in  respect  to  banks  coiisli- 


i:!7:{ 


STATl'TES,  NOVA   SCOTIA. 


1374 


tutnl  iiihUt  till'  proviMidiis  (if  iliu  IJiiiikiiig  Ait 
I'i  |s7I,  anil  tlu'  I'liuuily  kd  roinlily  proviili'il 
iiiiilcr  tilt-  Kii).'lisli  ludct'diin-  is  lUtaiimlile  lii'if 
diily  liy  liill  ill  fc|uity,  or,  |(erliii|i.-',  in  nnini' imm's 
liy  writ  (pf  iiiiiii(laiiitis. 

//'(;(/,•  of  Xor'i  Srolin  V.  Siilil/l,  4  K.  .'«  (J.,  I -Hi. 

Tlio  (k'cisidii  in  lliis  ciise  was  ri'ViMscd  im 
ii|i|)i',il  ti)  tlif  .'>ti|)ivin(j  Coiiit  (pfCanaila,  Ijiit  imt 
,is  tip  tliu  aliiivu  expiussiiPli. 

S  ."<.  ('.  I;.,  .VpS. 


•W  A:  M  Vict.  f.  n,  s.  IH\~ 

Is  viry  similar  tii  llif  |nip\  isimis  In  mir  Iiimil- 
Vint  .Act  of  JsT.'i  rilatiiii,'  to  ilisciiaigf  Ipy  foiii- 
pipsition.  Derisions  u|iip|i  .si'ction  I'Jii  of  the 
Kngli.sh  Art  ifvii'Wuil. 

.l//i/<  /Mj//  ./  t(l,  V.  Siitl,,  rlidiil  1 1  1(1., 

;{ ii.  kv,.,  p.  .S(i4. 


:.'(}  Vkt.  f.  i\,  s.  10 


V'  BANKS,  12. 


>    '.M  VId.  e.  10. 


(0  JL  :{1  Vkt.  c.  :t      Krltlsli  \ortli  Aimrka 

Act)  - 

>      BIJlTlSil  XORTII  AMEKRA  ACT. 

m  A;  :n  Vkt.  c.  '24,  s.  4 

>     IS  A;  1»  Vkt.  0.  it,  s.  »1. 

to  JL  31  Vkt.  «'.  n,  s.  I- 

HiiaLts  that  no  (.ontract  of  marine  insnianoe 
:<  to  liavi;  valiility  if  not  uxpi-L'S.suil  in  a  poliiy, 
uliicii  must  also  Iiu  stampcil. 

/'•  '•  Ititfliie,  K.  J.  — \Vf  have  no  such  .Staliile, 
and  I  know  no  reason  why  here,  as  in  the  United 
Stiitfs,  all  at'tion  eould  not  lie  lnougiit  on  a  dncu- 
iiiiiit  initialled  as  this  was  liy  the  directors, 
uliiih  ill  Knghind  is  tailed  ii  slip  or  label,  if  no 
|iohcy  liad  Ipeen  contemplated,  or  the  insurers 
iiuil  refused  to  execute  one. 

Wyhl'  i7  ((/.  V.  Union  Marine.  Iif.  Co., 

W.  K.  1).,  •JM.S. 

W  A;  :{1  Vkt.  c.  48- 

>ittled  tile  coiiliii.t  hetween  tile  practice  of 
Ci'iuts  of  K(|uity  and  of  Law  on  tlie  subject  of 
UKti'ineers  iiistnuted  not  to  sell  under  a  certain 
liriue  selling  uiiiler  that  price. 

Mdxon  V.  Chniiihirluin,  1  Thoni., 

(1st  Ed.  .t  •Jiid  Kd.),  1. 

:n  Vkt.  c.  9,  s.  10  - 

Kiiiuts  "that  (III  iiiMniim  lit  not  'lull/  •^t((iniiiil 
•h'l/l  not  In:  ///((((li.il  or  i/iri  n  in  i  cidi  iiri ,  or  a<l- 
mt'iil  tij  }„  i/ooil,  icij'iil  or  ((railahli.  in  Ian- or 
/iii'.V.'  Our  Act  says  tiiat  such  a  ili)cument 
"  •hn'l  III:  inraliil,  and  of  no  'Jict  in  lair  or 
■I"''!/." 

I'' r  .laines,  J.,  delivering  judgment  of  tlie 
'"lut— Tile  English  Act  and  ours  are  strictly 
I'tri  mall  ria,  and  I  think  it  would  be  undue 
reLixatioii  of  the  language  of  our  Act  to  recog- 
nize any  difference  between  tliem. 

McFalrid'it  v.  Ilnntu;  .'i  R.  &  C,  'JS9. 


STATUES,  NOVA  SIOTIA. 

'I'lii-  tirst  Scssinn  i.f  (icmial  .Vssembly  lirld 
in  the  Province  met  on  the  second  day  of  Octo- 
ber, A.  I>.  17.")S. 

In  ;>  Cart.  .V_'l,  .t  s, ,/.,  will  lie  found  ,i  letter 
dated  Deo.  •_>(»,  ISS'.',  from  Ijeuteiiant-(  ioveiiior 
.Aichibiild  to  the  .'<ecretMry  of  .Stute  for  Canada, 
on  tlie  sulpject  of  the  ('oiistitution  of  N'ova 
I  Scotia.  In  it  occurs  tlie  foljowiiig  pa.ssage  : 
"So  far  as  I  am  able  to  ascertain  the  facts,  no 
formal  Charter  or  Constitution  ever  was  con- 
feriid.  either  on  the  I'rovime  of  Xovii  .Scotia, 
or  upon  Cape  iJivton,  while  that  Island  was  a 
separate  I'lovince.  The  Constitution  of  Nova 
Scotia  has  always  been  considered  as  dciived 
from  the  terms  of  tiie  lloyal  Coinmissions  to  the 
<;overiiiprs  and  Lieutenant-(  Jovernors,  and  from 
the  instructions  which  accompanied  the  same, 
moulded  from  time  to  time  by  despatches  from 
Secretaries  of  State,  conveying  the  will  of  the 
.Sovereign,  and  liy  Acts  of  tl.e  Local  Legisla- 
ture, assented  to  by  the  Crown;  the  whole  to 
some  e.xtent  interpreted  by  uniform  usage  and 
cust.)ni  in  the  Colony." 

N'ova  .Scotia  was  ceded  Ipy  Kraiiee  to  the 
Crown  of  England  by  the  Treaty  of  L'trccht,  in 
I7I.S. 

The  preamble  to  an  Act  jjassed  by  the  Legis- 
latiue  of  Nova  .Scotia,  in  17">it  (."«  Ceo.  •_>,  c.  'A), 
declares  tiiat  "this  I'lovincc  of  Nova  .Scotia,  or 
Acadie,  and  the  pro[)erty  thereof,  did  always 
of  light  lieloiig  to  the  Crown  of  England,  both 
by  priority  of  discovery  and  ancient  possession." 
The  Island  of  Cape  Iheton  was,  with  Canada 
and  other  Kleiich  Colniiies  in  America,  ceded 
by  Fiance  to  England  in  I7(l.'t. 

On  October  7tli,  17<i.'^,  Cape  Ibeton  was  by 
I{i>yal  I'roclamation  annexed  to  the  (iovernnient 
of  Nipva  .Scotia. 

In  17()(),  the  (iovernnient  of  Nova  .Scotia 
passed  an  Act  declaring  tliat  the  laws  of  Nova 
extended  to  the  Island  of  Cape  IJreton.  (Statute 
printed  at  large  in  the  Ajipendix  to  .Journals  of 
Nova  Scotia  As.seinbly  for  IS4I,  p.  l.'iO.) 

In  17S4,  Nova  Scotia  was  divided  into  two 
govei'iiments.  New  Hrunswick  and  Nova  Scotia, 
and  Cape  Breton  was  inehuleil  in  Nova  Scotia  ; 
but  the  Lieutenant-«iovernor  was  appointed  for 


IMT',  STATl'TES,  NOVA  SCOTIA.  1:{7(1 

iiiiit  i>i;ui.i,  «iiM.s,r..iniiii»-i"iigiivi'liimtlii'xuiiii'      3rd  Keilst'd  Sfntiitrs 

|i(i«iT.s   ii.-*   txplcsXMl    ill  tl\t'   crillllllisNioli   of   till' I  Prm'llilliK'cl    Miilili  •JTlli,   I'^li").  |>UI^\lalil  l.'.'l 

Lifiitfiiiuittiovrriinr  "of  tlii'  I'mvincf  of  Novii '  Viut.  (iHtil),  i'.  S. 

Scotiii,  anil   till!   IsIuikIm  of   St.  .loliii  iiml  Ciilif 

lilul..i.,tlii'iiiiii.l  for  till' tlliii'lieilig."     Tlii'ioiii-  4«ll  Kl'VlstMl  StatllU'S- 

niis«i.morli!ttiTsputL'iit  oftliu(iovuinoiofN,,vi.  I'rocliiinuMi   Mi.y  Txli.    ls7»,    piii.-iiiint   K.  ;;ii 

Suotiii  spoke  of   "our   reMiici'tivi'  coiiiicils  iiml  N  ii't-  (I^T.'i),  c  1. 

assuiiililii'M  of  our   I'liiviurr  of  Nova  Scot ia  ami 

om   Mail. is  of  St.  .loiiu  anil  Cap.'  I'.ri'l uuilcr  5|||   KCVlsOd  StlltlllJ'S  - 

your     j,'ovtiiiiiiiiit  ;"     iiiiil,     witlioiit     cxiuvssly  I'roLlaiiiit'cl  April  •J.'tnl,  |ss,'),  ))iir.Mi,iiit   I  >  17 

uutliori/iiij,'  liiiii,  iiu])li(il  that  lii'  liail  tin-  power  Viet.  (I.SS4),  >■.  'Jli. 

to  oall  nil  AsKi'iulily  of  ( 'ape  liri'ton.     A  Couinil  , 

was  foniiuil,  Imt  no  ( liiiiial  Asscinlily  was  i-vor  .j^j  ^.^j^^  ^^  e.  -i  S.   I  — 

coiiveiii-il  forCapu  llietoii.      In  IS'JO  a  new  uom- ;      ^  ^^^    ^^^,^    ,.^^|,    ^.,„|,i|.,„j„g    liii^.^    i,>   IiimI  aii.l 

mission  was  ^i\  I'll  to  tliftJovrnior  of  Nova  Scotia,  ,j„i^,,i„j^,  ,„,ssfSsion) - 

auJ  that  (iovi'iniiH'lit  was  ik'scrilH'd  "as  inclu.l-  /•, ,.  ,|aiiiu.s,  J.— 1  think  this  Slaliitu  aiiiouiil> 

in-  till-    Islaiiil   of  Cape    I'.r.toii    (\vlii.ii   we  do  ^^^  .^^^  .^l,s,,|ute  ruiiunciatioii  of  llic  doitriliu  of 

I'xpri'ssly  aiivot  ami  (kilaiT  shall  in  future  form  ^,,,„^.^.y.^„^,,,  i,y  Hyery  of  seisin,   without   wliidi 

pari   of  said  Province  of  Nova  Scotia),"  and  no  ^^  torfeitiire  liUinot   lie  sustained. 

mention  was  nmde  of  a  Couneil  or  As.semlily,  or  /;,  ^.,.,^  ^    /;,  ,.,.,^_  j   );   ^i^  (,  _  ^^,^■ 

any  .separate  Lofc'islature  for  Cajio  IJreton.     The 

(lovernor  of  Nova  Scotia,  in  accordance  with  his  .^.^  ^.^^^   .^^  ^    ^^^  ^^  ^^    ^^f   .„,  ^^    ^^^  ^.    ,,.(^ 

instiuelions,    issued    a    proclamation    declaiinji  ^   ^__ 

Cape  liret.m  to  l,e  ii  County   of  the  Province  of  "  y^^^.^^^^^  „  „,„,   ,,;,,^,,   ni,,/ r.rlaii,  I'uw,,  :•,„>■ 

Nova  Scotia,  to  l,e  rep.esontod  l.y  two  memhers    ^^^^^^^  ^^^  Uqiunlhn/  ai„l  ;/mv«  h,,  «,////»,■ ;. 

in  the  Ceiieral   A.sseiul.ly  of   Nova  Scotia,  and  ^^.^  ^„.  h, ,.  Inst  ,nll  rtii'l  h .<>(,ninif,  n^  a'...  ,-•/,.,. 

dissolving'  the  Council  of  the  Ishiiid.  ^^^^^^  ,><iilmirii  („■  ,„i,;rtahi  h<i<inj  h,  ,„■  >//"//,  /.// 

Ill  the  letter  al.ove  referred  to  (.S  Cart.  p.  .V.'S)  ^^^ '  ,,,,,,^^,,^,,  ,;,•  „,„^  ,.f,,.„/o,.,  /„   ,;,lwul  t.,  „  ,-.,■■ 

ill   dealing  with  the  ciue.stion  of  the  legality  of  ^  ,;„,,^_  ,,,,,.,/,,„./,  },,,,t,.,,„,„/ /,,„(,./>  s  «.so.rt.P -«;-/, 

the  re-annexation   in    IS-_'()  of  Cape    UreKm    to  ^,,,„^' /„    ,„;,/  for  fu,<i  r<<vr,  ml  „l  lh<    V<mm<,i, 

Nova  Scotia  by  the  Crown,  without  the  consent  ^  ^;^^.   ^^^^^^  /^^^;^  ,,,^^,^,^^^^  ,,^,  ,,,.,„^,  ^  ^,,  „^,    ronhvni. 

of  the  inhaliitants  of  Ca,,e  I'.reton,  and   without  ,,,,,„.;,/,,;,„„/;„,/.'• 

an  .Vet   of  the   Imperial   I'arlialiieiit ,  reference  is  ^^^^^^^   ^,^.^^  ^^^^  .^^.^j^^^^  ,._^j.  ,^  ^.^.^.^.^j,,  ,^.„„^.,^.  ^,.,„ 

ma.le  to  a  petition  from  certain  inhal.ilants  of  ,,j^^  ,„,^i„i,^i„^,,i  i„  the  Common  Law  Courts a-aiiW 

<^,pe   Hretou  which   was   in    ISW  lodged  lii   H't^  .^„y  ,,^^^j..,„„   „.i,„,  u„,lor  a  will,  is  made  liahle  m 

otticeof  the  Privy  Council  in  London,  eoniphun-  ^^^^^  ^^^^,^  j^,^,^^^,y_  .^,^,,  ,,,^.^,i,.,,,  ,„„i,,,  ,„,i,  „ill 

ing  of  the  annexation,  etc.,  ami  the  .statement  is  ,  ,,^^-^,^  Milliciei.t'to  pay  it. 

made  that  "  it  does  not  appear  that  any  further  j^^^^^   ^j^,^^  .^  ,^„_^^.^^,y  ,,f  .^  ,\^.^^.^^x^  suitahle  iumI 

steps,  l.eyond  the  lodging  of  the  petition,  ^^  W'u  ,  ^^J^^j^^^.'^.^j^,^.  maiiiU-naiice  is  in  its  nature  sulH- 

taken  in  the  matter."  eieiitly  certain  to  siLstain  ivii  action. 

The   case    /.'.     '/'If    I^lnml  <;/'  0(/"     /!r>/oii,  .")  '          j,-//^  ^.    jr/i,,^  \  ■[•\um\.,  C-'ud  Kd.),  l^'i 
Moore,    P.   C,   •-'.')!>   (.S'",    «"'-,   NOV.l   St'OTLV) 

has  apparently  heenoverh.oked.  .,.n'on   '»(17-.»*'    <•    11    s    l'»  - 

In  IS-'O  an  Act  (I  .t  •-'  ( leo.   f.  e.  .".)  was  pa.s.sed  '^^  ^*^^-  '  '  17.>S  ,  \'_]^'^'  »" 

,       ,         ,      ^      ,   - .          ^     .■     ...          .       )  /'. /•d.>linstoiie.      In  l,..,s,  I'rov.  Laws.  v.ii. 

1)V  the    Le.'islalure  ot    Nova  Scotia  "  to  extt'liil  .    i,     ,    .                     .,;,„lt, 

"•>    ,"^    "  "'                                             .  ,,.    1(1,    the  .Judge   ot    Prohate  was  ilm pill cl  tn 

the  laws  and  ordiuanees  of  the  Province  ot  Nova    '  ,•■..■        .     n      ,..i,i„„.   „r  .,..vt  .iI 

,      ,,,./.         I.            •■  uraiit   adnuiiistration  to  the  \\l(low    oi  iii.xt  "' 

Scotia  to  the  Island  ot  (  alie  l.retoii.  f                          .     ■      i   r     i..     r..       »i        ;..,t;,„,  t,, 

'  kin,  ami,  on  their  default  after  the  eitatiim,  t" 

I  such  jierson  or  persons  as  he  should  jii'li.''-'  •!'• 

1st  KeVlsCd  statutes—  :  in  l,S4'_'  the  principal  creditors  were  iiitKuliKvl. 

< 'ame    into    operation    .Scplemlier    l.st,    1S.")1,    .,,„]    ti,^^,    i^^v   took    its    present    form,   hut  tin 

being  brought  into  force  by  a  certificate  of  the    j,|,\vcr   to   grant   administration    to   siuh  "''"' 

Commiasiouers,    pursuant    to    14    Viet.    (ISol),    person  as  the  Judge  should  think  til:  "a.'*  ""' 

c.    14.  then  (lualilied  by  re.iuiring  the  appli<ati'iii  "la 

creditor.     This  re.«triction  was  adiled  in  tlaHi' 

2nd  Revised  Statutes-  vised  statutes  (1st  series),  in  KSol,  iind  the  «""' 

Were  declared  in  force  August  17,  1S59,  by    "  shall  "  was  changed  to  "  may  •' in  the  aiuli"iiij 

Proelaination  of  the  flovernor,  pursuant  to  21    to  grant  administration  to  the  principals fiht 

Vict.  (1838),  c.  ;15.  i  "IS  i"  the  third  series  of  the  Revised  stututi' 


1  i)ka  M 


STATIITKS,  NOVA   SCOTIA. 


137S 


Tills  cliun^'t'  Hill)  iIiIn  ir.st  lilt  inn  mt'  Ixitli  hI^'- 

lilllriilit,      \Vi-   ran    Ullili'r.slllllil  llir  iiliji'i't    iif   IT- 

i|iiji  iii^' llii' ii|i|ilii'iitiiin  of  II  I'i'cililiir  lii'tuic  llu' 
.liiil;;!' nliiiiilil  III' iilliiwi'il  tiipiisHliy  lilt:  pi'iii('i|iiil 
ri'i'iliiorH,  linl  lint  it'  his  iidwit  whh  only  to  lio 
ivciriHcil  iiftrr  fitiliirc  nf  i'i)iii|M'lcii(  mill  willing 

ili'ililiiI'M,  lliiil  till'  Li'j^'isliitlll'i'  tlillH  illlriiilcil 
liiiiirtiiil  II  piiwci'  gi'iiiitiMl  til  the  >liiilg)'  of  I'ln- 
L.ili' lit  till' lii'Ht  .si'ttlriiii'iit  iif  the  I'liiintry,  luiil 
ivi'irisi'il  fur  iiiipic  tliiiii  Ni'vriily  yi'His  iit'ii|i|iiiiiit 
iiiriii  on  t'liiiiii'i'  of  willow  iiiiil  iii'xt  of  kill,  wo  iirc 
I'uiiiiil  to  lii'licvi' tliiil  tlioy  wniilil  liavi'cxpi'rMsi'il 
ijiiil  iiitt^ntiiin  when  a  fc^w  wor.ls  woiilil  Imvi' 
■iilliiiil  wlii'ii  llu'y  liiiil  iilrciiily  ^iiiirilnl  llir 
|iiiiiiily  of  I  III'  lii'Nt  class  of  I'laiiniintM  liy  ri'slrir- 
livi'  liiii^'iiiigi',  mill  wlii'ii  till'  fi'iiino-wni'k  of  tlirir 
iiiiirliiu'iilH  hIiows  that  tlirir  inti'iition  was  cs 
pi'iiiilly  ili|i!rti'il  to  \\u\  oilier  of  |iiioiity,  ami 
ihiit  they  iiilii|ili'il  tlic  liicthoil  (.'iilciiliiti'il  in  \\h'. 
|il:iiiii'Nl   mill  strictest  iiimiiii'r  to  iiiilicato  that 

Ill  ;•<   /■^/ii/i  of  Iti-dini,  I   N,  S,   1).,  .'I'HI. 

^   ,  "/  ',  Srd  It.  8.,  r.  121,  m.  11  iinil  \1. 

M  lico.  i  (ir»S), «'.  1.-. 

(All  Act  for  inakini^  laiuls  anil  tciuMiU'iits  lialilc 
itlii'  payint^nt  of  ilehls)— 

s     STATUES,  IMrKltl.Ui, 

\'A  K(iu.  l,c-.  IS. 

Wlit'O. 'J  (liiiS),  c.  18,  s.  ir> 

S"  2ml|{.  M.,  r.  i:ii,s.  l'i». 

:|;m;po. '-»  (17->»),  C.I 

Fiisi  \ova  Scotia  .liiry  Act.  In  this  Act 
lie  was  no  provision  for  a  jiiiy  (h  imilii /ii/i 
liiiijnai ,  uiir  has  there  lici^i  any  in  siilisciiiii'iit 
Acts, 

Ililil,  ill  IStil,  that  tlie  lonj,' course  of  lei,'isla- 
':"ii,  I'liupleil  with  the  fact  that  such  a  jury  lias 
Tier  hcfore  lieen  elaiineil  in  our  Courts,  though 
!!«■  iilra  ami  usage  in  the  mother  country  were 
imiiliiir  to  every  lawyer,  is  .strong  eviilence  of 
!!«■  iipiiiion  helil  by  ourJuilges  ami  legislators 
lilt  nil  right  to  such  a  jury  existeil  hviv. 

Qiiriti  V,  Ihirdill  It  at.,  1  (Mil.,  I'Jti. 

H  <Jeo.  2  (i;«0),  c.  5,  s.  2- 

■  Thill  I'Virij  ci'i'vutnr  nr  inliiiitiislrulur  irlio 

'■'il.  Ill/  n'rliii'  iij'  tills  Art,  lir  (iitthiiriviil  tnid 

uiimircrril    to    tiltlki'    Xdh-    (if  iniij    mil  istntr. 

MU,  liifiifc   siiiii    siih'   VKiilf,    ijiri'   tiniiil   hij 

»mi'lf(ir  his  hiv'fnl  iittnrtiiii,  ii'ith  tirn  siin- 

|«". '(( the  (ijjirc  of  thv  lliijistcr  of  Ihv  Court  of 

IMiiitcn,  ill  the  nniiitii  vlit-n'  siirh  reiii  cstnti-  I 

I'"''/ /('(•,/()/'  till'  just  mill  Ill/Ill  ilistrlhulioii  of  \ 


''"  iiiniiivs  iirlsiin/  from  siirli  s(il)\  in  tlw  full 
I  '"■  !■•/(((■/(,  hij  the  report  of  the  roinmissiniifrs 
45 


for  Unit  /iiiriiiisi    iiiijiiiiiiliil.  shnll  III  ri  rlifiiil  III 
III-  liirissiiril  III  III-  rilisiil  III/  sill  h  siili  ," 

I'l  r  llalliliiirton,  ( '.  .1.  'I'hal  the  piireliaMer 
was  hiiiiiiil  to  .sec  that  the  seciirity  liiiil  liceii 
given  miller  tliis  Ad  cannot  he  ilispiiteil. 

Chiiliiiliii  v.  .\ti- hoiinlil  1 1  III.,  '1  'I'lioin.,  ;Mi7. 

1  (Jeo.  a  (KUI),  <>.  S    IT.  .jlh  M.  S.,  c.  l»l, 

O.  XLVI. 

(.\n  .\ct  to  I'liahlc  cicilitors  to  receive  their 
just  ilelils,  out  of  th  •  ellccts  of  their  aliseiit  or 
iiliscoiiiliiig  ilelilors) 

111  III,  (I)  I'ri/e  iiiomy  in  hamls  of  a  prize 
agent  is  not  "gnoils,  etFccts  or  creilits"  within 
the  ineaning  of  the  Act  which  gives  attachineiit 
against  the  gooils,  ell'ei'ts,  or  ercilits,  of  any  per- 
son ahscomling  or  alisent  out  of  the  Province,  in 
the  hamls  of  his  atlorncy,  factor,  agent  or  trus- 
tee." 

(■_')  A  prize  agent  is  not  an  "attorney,  factor, 
agent  or  trustee"  within  the  incmiing  of  the 
Act. 

(.'1)  .S'l  »(/i/( ,  a  sailor,  coining  iiere  for  a  short 
liiiie,  ill  Mis  .Majesty's  ser\  ice,  can  scarcely  he 
the  person  inteiiilcil  liy  the  Act,  illiiler  theiles- 
cri]itioii  of  mi  iiliiiul  or  nliiioiiiliinj  ilihlnr. 

(I)  If  such  jiri/i!  money  in  the  hamls  of  a  prize 
agent  is  inteiiileil  to  he  niaile  siiliject  to  attach- 
ineiit iiniler  tin.'  Act,  tiie  Act  is  repugnant  to  llu! 
I'lizo  Acts. 

In  the  jiiilgnient  in  this  case-  Dr.  Croke,  IIk; 
.liiilge,  cites  a  cas(^  ili^ciileil  in  the  Supreme 
Court  of  Nova  .Scotia  in  which  it  was  helil  that 
jiri/e  iiioney  in  the  hamls  of  prize  agents  coiilil 
he  attauheil  umlur  this  Act. 

Till   ISivniwIn,  Stewart,  'J.'II. 

To  eiialile  plaintilT  to  procceil  iimler  this 
Statute  against  a  ilefemlmit  as  an  ahseiit  ilelitor 
the  ilefemlant  niiist  have  resiilcil  or  thi'  ilelit 
have  heeii  contracted  within  the  I'roviiice. 

Cnrhmii  v.  Diiiiraii,  '1  Tliom.,  .SO. 

This  Act  authorizes  the  gooils  of  the  ahsent 
ilel)t<)r  to  he  attaeheil,  the  writ  ilirects  theSherill' 
to  attach  the  gooils  ami  estati?  of  the  ah.sent 
ilelitor  mill  the  return  of  that  oflicer  that  he  has 
attaeheil  the  goods  or  estate  of  the  ahsent  ilohtor 
can  alone  lay  a  foundation  for  the  plaintill'  pro- 
ceeding one  step  or  tiie  Court  taking  jurisilie- 
tioii;  wauling  that  return,  all  is  mere  assump- 
tion and  I'oram  non  jmlin..  Not  siinieicnt  for 
return  to  state  that  the  .Sheritl'  has  attached 
goods  "ax"  the  jiropcrty  of  the  ahsent  dehtor. 
Rntrkjhrd  v.  Chl/imav,  '2  Tlioin.,  '2',i') ; 
Miiviion  it  ul.  v.  lioyil,  "2  Tlioin.,  247. 

I'lr  TIallihiirlon,  V.  J.— The  defendant's  coun- 
sel contended  that  the  whole  ohjcct  of  t  he  Act  was 


I.*i7!) 


STATUTES.  NOVA  SCOTIA. 


IMSO 


lo  I'diiipi'l  an  ii|HM'uiimci',  uiiil  lliiil  lluii'ti'ic, 
wlii'ii  III!  ii|i|HiUiinii'  in  I'lilrri'tl,  llial  nlijict  i« 
Kiiiiicil,  iiiiil  III!  llu)  i;iiiiH<M|iU'mfH  (if  llii'  ili^ftuil 
illil's  jilcviiiUN  .lmfiu:i'  lU'f  ullliullt'il,  Jlllil  llu' 
ciiiiMc  i.s  111  |iiii.  1  unci  111'  liiiili'il  iiH  line  llial 
lull)  lomnitiiiiil  liy  a  |iiin(>ii,iI  HiTviir  in  tlu' 
nsual  manner. 

'I'll.'  liiHl  ilaunc  iif  I  r.vih  ;i,  I'.  S,  lcmliT« 
till'  j,'iiiiil.s  alluiluil  lialiif  III  ifH|Hinil  llif  juilj.; 
mint,  to  lie  rucovend  iinilcr  hiuIi  |iriKtxH  ;  ami 
till'  liflli  ilaiiHc  rciulfis  till-  kimiiIm,  ctlfits  <ii 
crnlil.H  in  llir  lialiiln  of  llir  a^^ciil  iif  till!  aliwlitcf 
aJMii  lialilc  111  till' jiulnmi'iil,  ami  makes  tlieayi'iit 
ln'isnnally  lialili'  if  he  iIdcm  not  itiinluci' llii'in.  It 
innMl  111!  I'l'ini'mliii'cil  that  until  llic  yar  IM'J4, 
till'  |irii|ii'ily  iif  priMiinH  |iri!«i'nl,  aH  well  aw  nf 
tliiisc  wliii  were  almeni,  eiuilil  lie  altaeheil  liy 
mesne  pioeuHM  ;  anil  HUeli  priipLTty  nf  liel'minH 
pieseiit  Wi.M  lielil  ti>  I'l'Mpnml  the  jmlKmelil,  ami 
the  plaint itl'miKht  leenver,  allhiiu^ih  theilefeml- 
ant  enteieil  an  appeaiaiiee  ami  eiinle«ti'il  the  unit. 
When  the  Li').;i«latine  Jiasseil  the  Ael.in  IH'JI, 
ruNtiaininm'  the  iMHiie  of  altachmenlw,  they  ex 
I'l'pti'd  the  easi'.s  of  alwenl  niahHuiimlin)^  ilehtiiiM, 

which  theiefiiie   I'emain   tn   lie  ileeiileil  ii| as 

they  wimhl  havo  lieun  hail  that  le.stiaininj,'  Ael 
nut  passeil.  Uniler  inir  praetiee,  priof  tii  the 
pa-sxing  cif  the  4  ami  .">  tie".  >,  lH-4,  neither 
the  filing  of  the  upeeial  liail  mir  the  remlei'  nf 
the  ilefemlant  wmilil  have  ilepiiveil  the  plain- 
till'  nf  the  security  he  hail  gained  to  respoml 
the  juilgnient  umler  the  writ  nf  attachment. 
The  poHSesHion  nf  the  gonils  altaeheil  cnillil  only 
Ik!  regained  l>y  giving  security  In  the  .Sheritt"  to 
jiay  the  amount  nf  the  appraised  value  in  ease 
the  plaintilT  shnuhl  recover  iudgnu'iil.  As  the 
Act  restraining  Mu)  iasueof  atlaehniei>ts  does  not 
extend  to  the  eases  of  ahsenl  or  .iliscouding 
delitors,  there  can  he  no  doulil  that  the  goods 
taken  luider  the  attaehineiit  must  likewise  lie 
retained  to  respond  the  plaintill's  judgment, 
should  he  reenver  in  this  action. 

fi/iirr  1 1  aJ.  v.  Mitmiif,  '2  Thorn.,  "244. 


1  flco.  »  (HOI),  C.  S,  H.  1 

"  That  it  fhall  and  may  In  luirfiU  for  any 
/iirsnn  in/illitl  lo  any  action  for  any  ddilx,  diieit 
or  Uimanils  n-huhoirir,  aijainsl  any  inrsou  nli- 
trondinii  or  ahscnt  out  of  this  Prorinrt.  to  causi 
thf  ijoodt  awl  estate  of  »uch  ahscondimj  or  ahseni 
/lerson  to  III.  altaeheil,  in  irhose  liunils  or  iiossis. 
sion  sotnr  the.  same  are,  or  may  In  found :  and 
the  uttaehinij  of  any  purl  thereof  ^halt  secure  and 
make  the  whole,  that  is  in  such  person's  hands, 
liable  in  the  law  to  re.tpond  the  jiuli/ment  to  he  re- 
rorered  upon  such  procc.ts,  if  so  much  there  he, 
and  no  further,  and  shall  he  suhjtcted  to  he  taken 
in  execution  for  salisfadion  thereof,  or  so  far  as 
the  value  thereof  will  extend,  and  the  jmrson  in 


ichim   hitnili  ihiy  an    ^hall  ixposi   ihnii  iiniinl 
iiiijly." 

When  the  atlidavit  under  which  the  \miI  w^h 
iiisued  wuM  parlly  for  delit  and  partly  fm  .ti  l.uin 
for  negligence  as  a  liiiilee,  and  the  \\t\\  \\.\.^  m 
diirsed  for  the  whole  smu  sworn  lo  in  the  ;iili>|;i 
\il, 

llihl,  thai  the  process  ciiidil  mil  he  suMl.iiiiicl. 

Muri^on  V.  Murisnn,  I  'I'lioni.,  (Isl  Kd.),  Ill-j; 
(•Jiiil  Kd.),  i:»l  ;l'Th ..•.'.VJ. 

1  Uco.  iKHOI),  c.  14  - 

sv,  %  Geo.  4  (1S'2«),  c. '.». 

:» ii  I  ««'o.  ;j  (ii«;»),  <•.  5  -cr.  .uii  it.  s. 

c.   IIH 

(An  .Alt  for  relief  of  Insidvenl  Dehluis)  - 
/'•/'  Johnstone,  K.  .1.  It  was  argued  lliil 
under  this  chapter  the  assignee  of  an  insolviiit 
delilnr  Innk  a  perfect  title  in  the  pnipirl) 
a.ssigneil,  and  cnuhl  liy  the  terms  of  llie  Ail 
sue  in  his  own  name  in  like  manner  as  llu 
assignee  nf  a  liankrupt.  There  is,  however,  ii 
marked  distinction,  fur  hy  the  seveulh  Miitiuii 
the  creditor  may,  nntwithslandiug  the  as.si^M 
nient,  take  the  del>ti»r'»  laniU  and  goods  in  cxi' 
cutioii,  and,  I  think,  the  assignee  must  lie  lii'lil 
Intake  the  properly  suhject  to  a  li  ust  fur  tlii' 
dehtiir,  should  it  reali/.e  nuire  than  eiimiuli  tu 
satisfy  the  delil,  and  the  assigmueiit  iuii>l  Ik' 
regarded  as  in  legal  etrecl  a  nmrtgage  cri'iililif! 
but  a  specitic  lien  upon  the  prnperly. 
Sii,also,  INSOIiVKNCY,  1(». 

Cull  ins  V.  A',  id  et  at.,  -'01,1.,  •.'.VJ. 

5  (jco.  3  (n«5),  c.  '2,  s.  ;» 

Private  rnads  to  he  laid  out  hy  the  siiiveyin* 
of  highways  — 

"  I'roriiliil  that  no  damaiji  he  doni  Iniunj  i«f 
ticnlar  person  in  his  land  or  properly,  icilhmi  (/«• 
ricompence  to  he  made  hy  the  town,  us  llu  ^mrnj 
ors  of  hiijhicays  and  the  parly  inh  n -lul  mh 
aiirie,oras  shall  he  ordend  hy  the  .liisiin^,i» 
tleneral  Sessions,  upon  inquiry  into  llu  miiv  '■//" 
jury  to  he  summoned  for  that  purpofi ." 

.SV.  4  WM.  4,  c.  «»,  s.  1. 


««co.:J(n<MI),  c.  8 - 

I'er  lili.ss,.l.-Firt*t  Act  which  gives  tlu' f"""  | 
nf  the  writ  of  attachment.     It  is  to  a  teinixiM) 
Act,  long  since  expired,  that  the  writ  owm  H" 

nrigin.  .  . 

Murisonv.  Mnrison,  1  Tluun.,  (1st  Ivl),  1>."''  j 
(•2ndKd.),  p.  i:i(5;  '-'Thorn,    " 

©Geo.  3(t7«H,  c.  10-  . 

(An    Act  coneerning  hail,    the   title  mil)  "I 
which  is  printed)—  ..f 


STATUTKS.  NOVA  SCOTIA. 


I. '182 


^  iM'HMiiinl  |iuii|  "ViriiMiiHilialcly  In  I  lii^  Hinvcydr. 
(^|"'i.il  ImII  ill  thr  r.Miiiiy  npoii  ai'lidtm  .1,..  j  Hut  \>y  llif  i:i  A  ||  (i,...  ;i,  ,•.  ;i,  ili,  law  wuh  in 

|»inliii>,'iiitlic,Sii|iriim.  ('(.ml  of  tli.'  |'i..viiici')        IIiIm  i«'m|m'c|  allciv.l  hn  it  hiaii.l-. In  llir  An  m 

>'"   IS  (iCO.  ;i  (inS),  f.  0.     plfHriit    ill   fnivi!  (7  (!,...   |,  ...  •_»),  ,iii.|  tli.w  for 

fciliiitH  me  now  "  lo  Im'  hiiiiI  for  uinl  ivcovdroil 


'  ii"!  Act  wliiili  ri'i|niri'il  any  iilliilnvit  lo  hii|i- 

|»iM   "lit  of  iitliii'linirlil. 

Miiil-ioi,  V.  .)r„n\„„,  I  'riioiii.,  (Ist  |.;,|.),  1(17; 

C-'nil  I'M.),  i;tll:  •JThoni.  '.'.VJ. 

•V"  1H««0. ;»  (U7K ),('.«. 

'ta;<»Uvo.:i  (1708),  (.1:1 

Vm  IhOco.  a  (177M),  r.  0. 

1*1  lUUeo.  :((17imi,  <;.  » 

V"  18«C0. ;»  (177N),  f.O. 

KMa-o.  3(1770),  f.  3 

(All  Act  for  cNtuliliHliiiij,'  tin.  riitc  of  intiicst)  — 
V"  'ilMl  K.  N.,  ('.  M'i,  N.  1. 

II  iim.  »  (1771),  c.  «,  8.  I    Cf.  .llh  K.  S., 

c.  94,  H.  22 

•■  77('(«  )'•/,,/•,    „  siili   sh'ill  !„■  iniiili  i,f  hniils 
"t  Inn  minis  hijihr  hiislnnul  niul.  Iiis  irif,,  /„  - 

'")•(  siir/i  ihiii  s/in/l  he  niliil  mi'l  .siijllci,iil  tii  ,,„ 

'■<>rthi  wifv  fvinnthi  ri  fori  vij  III'  hi  f  ilnmriij'tir    '"'">"'  •'''"'"  '■''•"<'   Ihn,   iiniiinln.  lln    rnirihsl 
'III  iliiYiiMf  of  hir  liKuhitHil.   shi    shiill  h,    r.t--  ■yi'rx/inl.  iif  Ill's  Dijiiiiii,   uimj  nrnsl.  iwiin.snn 


liy  llif  .SiirvcyoiH  of   Ili^liwiiyH  licfopf  .liiHli.iH 
of  till)  IViii.'i!  in  like  niiuiiiir  a»  .IcI.In  me  Mini 
for  iiiid  id'ovciTil  "      iiiiil  ulii'ii  rniivcil  lo  Im' 
iippiicil  to  lilt!  rt'iiiiiiM  of  the  lii>iliway«,  ((c. 
Sininiiii,  .'ml,  v,  /),  U'olj; , 

I  Thoni.,  CJnil  K.I,).  IIW, 

14<I;I.>U«(>.  :{(i77l),  c.  I 

(Kxiiininiitioii  of  a^'cil  ami  indrni  witiicMNCN,  or 
of  tlii.Hc  iilioiii  to  . I. .pari  from  tin,  I'luvincc)  - 
WitiiinN  waM  piTMcni  at  Hint  trial  and  .Nainiiud 
lira  run,  IiIh  ilcpoNiljoii  liaviiii,'  prcvionHly  Ih-i'm 
l.ikc'ii  iiiukr  liif  .Statiilf.  licfoic  ihu  hccoiuI 
trial  llu  (lieil.  IVponitioii  litlil  adiiiiNsil.lc  at 
Hccond  trial. 

Uroirii    V 


/ioii/i,   I  Tlloln.,  (iNt   Kil.),   lOM  ; 

C-'iid  Kd.),  I,'J7. 


ir»  ii  10  «i'o.  3  (177.1),  c.  I- 

(In  aMieiidnu'iit  of  \\iv.  Hevrral  lawN  .onicrniiig 
>ail)   - 

'/'lull  ill    nil  niiisis   irlii  n    llii    sum  hi  ilr- 


uiiiiiiil  1,1/  ,,,i,.  of  /lis  A/iiji  sill's  Jiislins  uf  llu 
I'liin.  irhithir  shr  hiitli  lion,  llir  siimiirnhi. 


..)•  hold  lo  liiiil  ,11111  ilihlor  onlililors,"  upon  alii 
davit  of  till'  plaint jir,  etc,  •■  nuil  Ihr  sum  s/iiri- 


'liiiiiiin'hi,  mill  irithout  romimlsion  from  hir'  .'''''  '"  ••""'''  ".pi'luril.  ilr..  shall  hr  imlorsnl  on 


''«.«'"'«(/,  itlld  if  liifoir  sKch  .liislirr  shr  shnll 
■'■'■''irr  ihiit  shr   hiith  fnrlij  mid  i-olinilnrilii 
^'■jniil  siirh  drrd,   mid    Ihrniii   ussiiiiird   hrr 
'■'•ihl  of  down;   Ihr  Jiistirr  shall  Ki'rordiiiiilij 
'•rtif'J    siirh    iirktioii'liijimilit.     mi     Ihr    ihrd, 
"■Ml  shnll  firrrrr  }„„•  hrr  from  Uir  rrroi-rrn 
■.'li<r  riijhl  of  ilotnr  to  siidi  lands  so  roii- 
■■'joir 
A  wiil(.w  iH  entitled  to  dower  in  her  hiiHhand's 
'liiily  «f  redemption,  in  11  ease  where  she  was  a 
l^'ity  to  the  mortgage  for  the  purpose  of  n.le.iH. 
111!!  litr  dower,  under  the  Provincial   .Statute; 
<ii'l  liir  claini  will  he  proteeted  l.y  the  Court  of 
'liinitiy  in  <li8tril>utinH  the  surpliw  left  after 
!'Wil,)Hiirc  and  sale  of  the  inortyaged  prenii»e,H, 
W'laftir  [Kiyinent  of  the  iiicunibianeea  to  which 
'lie  Hiis  a  party. 

Collins  V.  Slory  a  al.,  James,  141. 

l:J4UOeo.3(1773),c.3- 

''"•  l!li,s8,  .J.,  delivering  the  judgment  of  the 

"iirt-Korinerly  under  the  ohl  A<;t,  1  Ceo.  3, 

'4,  tile   forfeitures  imposed   for  neglect  of 

^W  on  the  highways,  were,  ufion  the  complaint 

'ihe  siiiveyor,  to  be  levied  by  warrant  of  dis- 


Ihr  irrit.  rtr..   for  irhirh   sum.  ,lr..  Ihr  /•roroul 
Mnrshnl.  Shrri.tr,  I'oroiirr.  or  Ihiir  drpi,ii,s. 
shall  lalir  Unil.  mnl  for  im  iimrr." 
I  .V"  18  «co.  3  (1778),  c.  «. 

l8«co.8  (1778),  c.  «- 

(An  Act  to  amend,  render  more  elTectual,  ami 
reduce  into  one  Act  the  several  Acts  of  t|i,. 
Province  concerning  hail)   - 

/'ir  I'.liss,  J.  — What  was  our  earliest  .Statute 
<m  this  subject  I  have  not  been  able  lo  ascertain. 
An  Act  concerning  bail  was  piw.sed  in  tiie  (i  (ieo. 
."{,  the  title  of  which  only  is  printed.  The  first 
now  to  be  found  in  our  Statute  liook  is  (1*.  Law, 
vol.  1,  p.  140)  S  (ieo.  ;{,  e.  7,  intituled  :  "An  Act 
for  taking  special  bail  in  the  county  upon  actions 
depending  in  the  Supreme  Court  of  this  I'ro- 
vince,"  which  authori/.es  the  appointment  (»f 
Commissiimers  to  take  allidavits,  to  hold  de- 
fendants to  bail,  and  to  murk  tlie  writs  for  Iwiil 
accordingly. 

Two  other  Acts  were  pissed  soon  after  this, 
viz  :  8  &  9  Oeo.  a,  cap.  Vi,  and  9  &  10  (ieo. 
.'},  cap.  6,  concerning  bail,  of  which  the  titles 
only   are  printed.     Then  follows  the  15  &  16 


vw.\ 


STATlfTKS,  NOVA  SCOTIA. 


i:isi 


«ii<>.  ;i,  c;i|i  I,  (I'.  I,iiwH,  vi.l.  I,  II,  l!W,  liiUni 
fniMi  Kiiy.  Slut.,  I-Jdcii.  I,  cip. 'Ji»)  •'iiiimii'iiil 
iiHiil  iif  llici  Mvcriil  luwN  fiiiiit'iiiiiiK  liuil,  "wliicli  ' 
ciiiii'Im  lliiit  in  nil  niliNi'H  wlii'i'i'  till'  Miini  ni' (Iciiiiilicl 
hIiiiII  cxci'id  I  line  |iiiiiimIh,  iIu'  I'mviml  MuimIi.iI 
iir  IiIm  itcputy  iiiiiy  iirrcNt,  iiii|ii'iMiiiii>i'  liolil  tn  Imil  | 
any  ilt'litor,  iir  ili'litinN,  u|iiiii  alliiliivit  nf  llu'  il<'  j 
friidiiiit.iinil  tlirNiiin  N|M'i'ili<'il  in  t!ir  itllii^iu  it  hIiiiII 
lie  iinlniNcil  (III  till'  wi  it  fill'  wlii'li  tlif  I'riivwt  | 
MminIiiiI,  Sliiriir,  ('(iidiKT,  111  tlu'ii  i|('|iiii  iis,  slnill 
tllkt!  Iiuil,  anil  fur  no  innl'i'.  NnW,  tlu'Hr  tWnAi'lH 
a|i|ii'ai'  plainly  lnn'rnnni/.i'  tin-  law  iih  iiiliniliiiiil 
liy  tlir  Staliilt'iif  lli'ii.  0,  vi/:  lliiU  it  wan  nliligii- 
tiiry  (111  till!  Mhuiiir  to  take  liiill ;  luit  yil  that 
Statiilf  Im  in'illii'r  ciiactcil  lii'ii'  up  tn  tlir  prriml  tn 
whii'li  the  aliiivi'  Ait  icfciM,  nnr  wcri'  any  nllu'i' 
Htaliitory  rcfiulaf imiN  in  fmci',  imiIi'hm  iniitainril 
in  Honic  of  tlioHi'  I'.Npircil  lawH,  'I'lu'  Kn^liNli 
Statute  tlicn,  anil  the  prai'tii'f  f.iiiiulnl  upon  it, 
may  have  ln'cn  I'onMiilrrcil  to  have  liri'ii  liioii;,'lil 
to  thin  I'loviiicf;  at  all  cvriitH,  tln-y  iiiiiHt,  in 
boine  iin-ivsure,  have  licrii  ailojiteil  from  neocn- 
aity,  or  kohii!  otlifr  exprcsN  ri'jiiilatioiiN  iiiiiNt 
Imvo  liwn  inaile  wiiicL'  Slicrill'w  liere  loiilil  no 
longer,  iiftor  tlm  two  Acts  aliove  muiitioneil,  lie 
eoiiHiilereil  an  having;  the  eoininini  law  rij^lil  of 
taking  or  rejecting  liail  at  I  heir  pleaHiire.  IJut, 
however  tlie  law  may  at  that  time  have  lieen 
helil.anil  whatever  may  have  lieun  the  I'mviiieial 
praetiee  iinilcr  it,  uh  it  then  Mtooil  (if  any  set- 
tleil  praetiee  imleeil  iliil  exist,  which  is  rather 
(picHtionalile)  all  iiiicertaiiily  with  ref^pect  to 
tliiH  particular  Hultjecl  wiiN  Hoon  removed  liy  an 
ex picNM  Statute,  that  of  IS  ( ieo.  .'{,  e.  (5,  which 
was  pasMt'il  alioiit  three  yearn  afti'r  the  one  last 
meiilioneil  ;  "to  ameiiil,  reiuler  more  ell'eetiial, 
anil  reilnee  into  one  Ai'l  the  several  Acts  of  ihc 
1'roviiiee  eoncernilig  liail."  The  first  ami  seeoliil 
sections  iif  tliis  Act  are  of  similar  iiiiporl  with 
the  then  existing  Act  of  lo  &  Hi  (leo.  'A,  c.  4. 
The  third  seutioii  is  exeecdingly  important.  To 
a  certain  extent  it  in  fact  ri'-enacts  and  incorpor- 
ates togetlu'r  the  suhstance  of  the  Kiiglish  Sta- 
tute of  ii.'l  Hen.  (i,  relative  to  taking  liail,  and 
that  of  4  Anne,  relative  to  the  assignment  of  the 
liail-lioml.  It  certainly,  however,  ditleiH  from 
both,  and  from  the  former  in  several  respects, 
not,  perhaps,  wholly  unimportant  to  the  pri:- 
seiit  imjuiry.  Hut  the  chief  and  most  reinark- 
alile  j)oiiit  of  ditrereiice  lietween  this  and  the 
Statute  of  Hen.  ti,  is  that  ours  wholly  omits 
that  identical  clause  which  makes  it  impera- 
tive on  the  SlierifT  to  have  the  liody  at  the 
return  of  the  writ,  and  under  which  he  is  pun- 
ishahle  liy  the  Court  in  Kngland  by  attach- 
ment for  a  breach  of  that  duty.  In  framing 
the  Provincial  Act  the  Knglish  Statute  must 
have  been  had  in  view,  for  substantially  in 
other  respects  it  is  borrowed    from    it.     The 


iimiNHinii  III'  a  I'liiiiHi'  Hii  im|Mirtanl   cmilil  iIhh 
fore    have    only     been    fliilo    ilimgii.      .\iii|    iImi 
intention,   it  appearn  In  me  npially  iliin,  iini.>l 

have   I II   to  alter    the    respoiiMiliilil  ii -.   nf    iji, 

Shelid'  which  resillteil  from  the  nmillril  i  Uii-c, 
liiNtead  of  eiiinpelling  him  lilHt  to  lake  hiiil 
and  to  return  ri /il  ciir/iii-  as  if  he  had  iml  ilnni 
Ml,  and  then  making  him  liable  In  piiiii>li 
mint  as  for  a  bieaili  of  duty  and  iniili  iii|ii. 
which  would  nut,  I  tilink,  be  the  most  iilisimi. 
meaiiM  of  giving  the  plaintilV  redresH  against  llu 
Shelid'  if  a  lemedy  by  .Statute  wile  now  foi  iJi. 
lirsl  time  to  be  provided,  our  .\cl  h;is  piMMii'il,! 
more  plain  and  dirc^ct  course.  It  piewiiln!. 
alone  the  eonduct  which  the  Sheritrs  must  piiiMii 
ill  taking  bail,  namely  ;  that  the  sureties  iiiii>i 
be  siitlicieiit,  leaving  to  the  |il,iiiil  ilT,  if  lie  i- 
injiired  by  a  neglect  of  duty  in  this  part  iml, u 
on  the  part  of  the  Sheriff,  the  remedy  by  actimi 
which  necessarily  ri^siilts  to  him  tlierifidin. 
Nor  was  it  without  a  piecedi'iit  directly  in 
point  derived  from  tliii  Knglish  Statutes  I  linn 
selves  (II  (!eo.  '.»,  e.  H»,  s.  L'.'t).  Tlu!  SliiliMr 
of  II  tleo.  '2,  which  compels  Sheritl's  fur  iIh' 
beiictit  of  landlnrds,  to  take  pinper  ic|iIivim 
bonds,  may  have  been  adopted  by  oiii'  l,c;;i.-l.i 
lure  as  their  guide  on  this  occasion,  umlir  whii  li 
the  SherilT  is  not  piinisliable  by  attachiiii  til  fnr 
taking  insutlicii'iit  seciiiiticsj  but  the  plainllll"- 
remedy  is  by  action. 

Jiirk-<oii  v.  C'lniiilii//,  I  Tlioiii.,  ('Jiiil  I'M.),  Is. 

/'()•  I'.liss,  . I.   -This  Act  authorizes  no  spiciiil 
order,  invests  the.liidge  with  no  diMcretioiiiuy 
power  either  to  Imld  to  bail  or  to  attach;  ami  if 
he  eaimot  indorse  the  writ  as  the  Act  iliivcts, 
he  cannot  indorse  it  at  all.      If  he  can  make .i 
special  order  under  this  Act,  so  can  a  .liisticenf 
the    I'eace  in   the  absence  of   a  .linlge,  fur  tin 
same  power  is  given  to  one  as  the  other,  ami  tin 
latter  would  then  be  authorized  cipially  In  miUi 
a  defendant  lobe  held  to  bail  in  special  ciisiv. 
We  can  never  suppose  this  could  have  lieeii  imi 
templated  by  this  Act.     Our  I'rovincial  Ait  i- 
substantially  like  the  Knglish  Statute  of  I'.M.V". 
I,  ca|>.  '2'.),  which  rei|uired  an   allidavit  lufim 
bailable  process  ciiulil  issue,  and  wiiiili  wiimM 
have  limited  that    process  to   cases  wliiic  llu 
debt  or  damage  was  certain  if  the  .)ml(;e  li.nl 
not  a  power  of  holding  to  bail  inilcpeliili'iiliy 
of  the  Statute.     And  so  he   may  do  iicic,  f"i 
the   same    reason,    notwithstanding    the    I'l" 
vineial  Act.     But    the   process   of    attafliiiu'ii 
owes  its  origin  and  support  altogether  tn  <iiii 
Statutes,  and  by  those  alone  it  can  therefore  h 
regulated.     He  has,  consnipiently,  no  autiiority 
in  respect  of  this  wliieh  the  Acts  do  imt  givi 
him  ;  and  as  they   have  intrusted  him  with  n" 
discretionary  jwwer,  but  have  liniitcil  his  m 


I.SH.J 


STATIITKS    NOVA  SCOTIA, 


i:iM({ 


oi-M'liirlit  I  if  .III  mM.ii  liMii  Ml   I  CI  II  ili'lil,  I'll  liiiiily  liciii  lili  il  ('\i'<'|)lili);  t  lir  I'lii'l  lll.il  nil  i'\i  rill  lull  llilil 

I  1.1  II  rvrni.sr  tin  ni  liir,  liri'ii  Immiii'iI,      Miht  iIi.iii  lliii  I  \  y'''""  iilli  rvviinlH 

Miiriinii  V,   MiiriiDll,   I  Tlinlll,,  (hi.    Kil.),    Ml'.';  n  mlr  iii^i  was  nlilujlinl  fm  IciiM'  III  lilc  a  ii'cnnl 

CJllil   l'',il.),    I.'tl.  {\n'yr\\\  iiiiiii    fiiii  hiiic    ill   iinli'i'  tlliil   il  llli^lil    III! 

IH'iiilllrcil    iiH   ('\  iilrlH'i'    ill    II    |ii'llilill>{   lli'tinll    lir- 

it)  (irOi  i(  1 1171)),  ('•  N,  M.  I  Iwci'li   I  lie  HiiliN  (if  I  III'  ii|'j|{iiiiil   pai'lirM,  llii'  til  In 

'•  Thill  ill  II// nn,,,  irh'n  <iili<r  priffih  or /Hill  >'•  I'l'i'l  '"'iiiK  •"   i|llrHtiiili,     tilt!  riilo    wiih   (Un- 


li'-  lii^i/tiiiii/''  ilin/l  III  /nil/  mil  i  i'  iiiii/  illiinili 
•  hull  ili'i-i  /iihniii  l/ii  /iiiiliis  I  .  I, run/,  mill  llii 
.'fiirri  i/iifi  III'  I  III  //iilllii'ilifs,  /'or  /In  lini-ii  irlii  ri 
till  >iimi  sliiill  III  liiiil  mil,  iir /irii/ii).'<iil  lulu  Inii/ 
•ml,  rilnliiiii  III  Ihi  i/niiniiji  ^iijli  rnl,  nr  /Iki/y  lulu 
>iijliriil  III/ sinh  /iiiriii  ■<,  llii    sniin  >liiill  In  ililir- 


'liiii'p'il  nil  till'  Ki''>ii>iil  that  till'  ii|i|ili>'atiiiii  wiih 
iiiivilt'  tiMi  lute,  mill  liy  ii  |iiiity  in  aiinllii'i'  Hiiil. 

Ii'iiil  V.  Siiilili,  I   N.  S.  I».,  ','(1. 

:tM  Urn.  :i  inoNi,  c,  I,  xn.  t  and  :i 

S    I.    "  '/'/('('  /'rum  niiil  iij'li  f  Ihi  imlilli'iiliDii  of 


mini  il  III/ n  jiiri/ In  In    iirih  nil  Inj  llu  J  nil  in  ■<  mil    l/ui  ,lrl,iii,iilli  ii  iiiiir  rm'iliili/  irilhill  Ihit  I'liiriiin  , 

oj'llii  iiixi  liiinn,  irliii  >hall  III    iii'itm  iiiiiiarliiillij    or  who  iliiill  Inniiflir,  iliiriii;/ llii  nmliiniiiiin   nf 

'nilili  riilliii  llii   s/im'."  Ilili  All,  n,mi  Innsiih  III!  riiii  illiill  III    /iiniiiUnl 

■'^"    I  Win.  \%  V>  Oil,  N.  I.    ,,,  1,^  ^iiiif  ,.,,„„;„  irilhlu  litis  I'riiriiin  ,  irilhmil  a 

M/iiriiil  /iiriiiil,   iiiiili  r  llii    liiiiiil  anil  inil  of'  iln 
\\){iV».  l\  (inOt,  «'.  10,  N.  !|      Cf.  .Ilh  K.  S.,    <!onriii>i\   l.ii  nil  mini  lliinnwr,  or  Coinniiimli  >■■ 
i:  125,  H,  1  I  int'liiif,  for  llu  liini  Inimj,  it'''." 

KiiiictH,  >'lhal  irhin  nin/liunsi  or  h  m  mi  iil  shall  \  ''"'"^'^  I"  "''''^'"  •""=''  l'^"'"'"'-  '"'  "'"^"  "l"'"  '" 
hililhif  llu  !/iar,ilmi  monih.'  inirniinj  chilli  In  ^vritliiK  liin  iiiiino,  iikc  pla.T  nf  nativity,  rank 
■ilrni,iniilii'li,n  li!,iihi  monlli,  on,   mw///i's -ao'/r    '""' ""'"I'"''"",   pniviilnl  li.i  shall  I'nt.T  into  ii 


liniiil    for  his   ^nnil   licliavinr,   aiiil    cninply  will) 
curtain  iilliur  rcgiilalioiiK. 

S,  ,'J.  ".t(/'/  il  '  I'nrlhi  r  I  iiitr'nl  Ihiil  if  mi  if 
iiliin,  iisiiforisiiiil,  iliiill  Hill  ohliiin  it  /n  niiil,  il'C, 
III  shilll,  on  roiirirlion  llu  mil'.  In  si  iili  in'nl  to 
iin/irisoiimi  III,  it'c.,  or  /imj  sioii  fm  as  shall  In: 
ini/iosiil  OH  him  III/  llu  t'onri  In  fori  irhom  hi  shall 
III  roiiriiiiil,  ami  In  iraiis/iorlnl  In  i/mnl  lli-t 
Miijishfs  ilnniiiiioiis  In  Aimrini,  li>  siirh  /ilnri 
as  Ihi'  lion  rnor,  li-c. ,  tniii/  iliink  /mi/n  r  lo  ilin  i:l," 

llilil,  inui'cly  II  Ifx'iil  pnlii'u  n'jiiilatlnii  to  jilauo 
alii'iiH  uikUt  till!  »yi'  and  cniitinl  of  the  liovcni- 
mi!nt,  Imt  that  it  gavi:  tlii'iii  no  now  riyhts  or 
priviluguti  anil  ruinovcd  iid  (UHi|iiallliuiilion. 

Till.  I'roriilniii,  Stewart,  ]).  IHS. 

i»  (jco.  ;i  (IMNI),  c.  1,  .s.  1  - 

( Mode  of  pro(.'i:i!iliiij,' wlii'ic  it  is  ni!ci's.sary  to 
initial'  frniii  landlnrd  to  tt'iiant  i.s  in  ijiu  year  i  iiiaki:  or  alter  a  road  tliroii^'li  tliu  improved  landH 
l'""k    l.'l  or    II    Ifi'ii.   .S.     The  Court  lielil  I  hat  I  of  any  persons  provided)  - 

The  jury  is  "  <o  iiukii^h  .swlt  ilnmnijis  to  Ihr 

i  iiwnrr  III'  ownirs,  mid  linniU  iirti'iiidits,  if  Kiivh 

laniln,  iKi'imUiiij  In  thiir  sivintl  iiitrnsts,  an 


iiiij,  mill  irhni  Inj  Ihi  irnk,  om  irn k's  irariiini/ 
•hull  III  ijiri  II  lo  Ihi  li  iinitl  in  /nissi  sslon," 

I'tr  llalliliui'lon,  ('.  J.  -This  .Statute  iillowH 
l.iiiiiliiids  to  teriniiiati!  the  tt!iian(!y  upon  Ki^''"t' 
tlii'i'i.' months'  iiotiee  to  the  tenant,  I, lit  dnes  not 
i\pit's,s|y  say  that  tenants  may  give  a  similar 
notice  In  the  landlnrds,  and  it  is,  theiefori',  con- 
ti'iiilcil  that  they  (the  tenants)  must  still  gi\e  si.\ 
inmitlis'  iintieu  as  eominoii  law  rei|uireH  them  to 
llu  ill  Kiigland,  1  would  only  s,iy  that  the  uniform 
|iriU'tiri!  Iioili  in  l<]ii^dand  and  this  eouiitry  has 
|iiiiic('iled  upon  a  principle  nf  reciprocity  in  this 
|Mitii'iiliir  ;  the  j,'eneral  rule  in  l'ji;^laiid  is  si.\ 
iiioiilli.s'  iii>tice  liy  and  from  lintii  landlord  and 
icniuil ;  hut  in  all  cases  where  particular  customs 
«iiK'tiiiii  a  less  or  reijiiire  a  longer  notice  it  is 
ilwiiys  reeijiroeal. 

/'ic  I'lliss,  .1.  -The  earliest  mention  made  of  a 


liiiiiliiiil  and  tenant  stood  on  eipial  terms. 
llruini  v.  liuulc,  1  Thoin.,  (I.'il  Kd.),  lO.S  ; 

(•Jnd  Kd.),  137. 


2H  lieo.  :{  (17S7»,  c.  1.5,  s.  5  - 

KiLuted,  "  In  fori  /(»:  (the  attorney)  •</(«//  issiir 
■rii'iiliiiii  in  any  ransi^  he  .shall  fli,  a  ro/ii/  of  Ihi: 
•'liil  Inxi  il  lull  of  coats  ill  the  dcrk'i  ofin,  of  the 
'Jmrl  out  if  which  snch  ixrculion  shall  issm  . 
'>iid  ill  cases  irhiri.  ix^calioni*  issue  out  of  the 
•^'"/icfHic  Court,  he  iha/lfrstjile  the  judifmeiit  roll 
"I  ihe.  jirojier  ojlice,  and  shall,  n/ion  the  execution, 
"iitorsii  the  realdeht  due." 

Ajiulgmeiit  had  hecn  entered  up  on  verdict, 
tlitre  was  uuthing  to  show  that  a  record  lunl 


lliv  said  JHi'ij  slinU  think  nanonuhlc  fir  the 
viditc  of  the  lundx  and  improvements  miule  on 
xHch  landx  to  he  tnkcn  into  such  hiijhu'inj  ns 
(duo  for  the  c.rjn  use  to  he  ihiinmed,  upon  the 
owner  or  tvnunl  fir  niakimj  feiieen  or  ditches 
on  the  siile  of  such  hiijhimtii." 

S'l  1  Vlin.  t,  c.  Utf,  s.  1. 

40«co.»(1880),  c.  1,».  3- 

(Keijuires  that  the  return  of  tlie  Sheriff  should 
after  notice  to  the  owners  of  the  nature  and 
course  of  the  road  to  be  made  or  altered  through 


1387 


STATUTES,  NOVA  SCOTIA. 


l.'',S8 


their  laiidR,  lie  eoiilirinetl  and  recorded  l)y  llie 
Court  of  Sessioiis,  iind  lliat  the  road  orliigliway 
slioiild  1)0  made  or  altered  accordiiij;ly,  ami 
thenceforth  become  a  public  road  or  highway 
for  all  His  Majesty's  subjects) — 

/Vr  Ritchie,  J. — Under  this  Act  tlie  road 
docs  not  become  a  public  liighway  until  the 
return  has  been  continned  after  notice  recorded, 
and,  in  my  view,  the  laying  out  of  a  road 
could  not,  even  in  view  of  the  long  user,  be  pr(v 
sumed  from  the  fact  that  tiic  Court  of  Sessions 
merely  onlered  a  Sheriff  to  sunnnon  a  jury  for 
that  purpose. 

Kmniey  v.  IJickmn  cl  al. ,  '20  N.  S.  R. , 
(8R.  &(J.),  95. 

On  appf'.al  to  the  Supreme  Court  of  Canada, 

Ilild,  reversing  the  judgment  below,  that  in 
the  absence  of  any  evidence  of  dedication  of  tlie 
road,  it  nnist  be  j)resunied  tliat  the  proceedings 
under  the  Statute  were  rightly  taken. 

Dkkwn  V.  Kutrmy,  14  S.  C.  R.,  743. 

41  Geo.  3  (1801),  c.  5- 

(An  Act  for  the  repairing,  etc.,  streets  in  the 
Town  and  Peninsula  of  Halifax,  etc.)  — 

Sa.  21  Vict.  (18«4),  c.  81. 

50  Geo.  3  (1800),  c.  11- 

(An  Act  rc(|uiring  the  inhabitants  of  Halifax 
to  kcoj)  the  gutters  and  streets  in  front  of  tlu'r 
premises  free  from  nuisances  of  every  kind) — 

.SV(;  21  Vict.  (1804),  c.  81. 

52  Geo.  'l  (1812),  c.  » 

Per  Halliburton,  C.  J.-If  the  effects  of  the 
testator  arc  .suflicient,  after  disciiarging  tiic  debts 
and  funeral  expenses,  tlie  executors  will  be  com- 
pelled to  pay  the  legacies  by  tiie  Court  of 
Ciiancery  or  the  I'Jcclesiastical  Courts  in  Kngland 
whether  he  has  formally  assented  to  the  legacies 
or  not ;  nor  do  I  sec  any  diiiiculty  in  the  way, 
when  sued  at  law,  to  pleading  whatever  would 
amount  to  a  defence.  If  ho  has  no  assets  he  can 
plead  that.  H  ho  has  fully  administered,  he  can 
plead  that.  H  the  estate  is  insolvent  and  cannot 
even  pay  the  debts,  he  can  plead  that ;  and  if  ho 
has  reason  to  apprehend  that  it  will  prove  so, 
he  can  apply  to  tho  Court  for  lime  to  plead  until 
ho  ascertain  tho  fact,  as  has  been  the  constant 
practice  of  executors  when  sued  under  such 
circumstances,  for  the  recf)very  of  rlebts  since 
the  passing  of  the  Provincial  Act,  5'J  (ico.  3, 
cap.  ,S.  If  owing  to  any  peculiar  circumstances 
the  estate  is  so  situate  as  to  render  it  necessary 
to  S'esort  to  the  Court  of  Chancery,  tlie  executors 
can  take  that  course,and  upon  stating  a  sufficient 


case,  tiiat  Court  would  enjoin  tiie  legatee  frcim 
proceeding  at  law. 

Kllx  v.  AV/,1,  I  Thorn.,  ('Jnd  Ivl.),  17;j, 


52«co.  :J(1812),  c.  »,  8.  3- 

"  Thai  it  fhall  not  In  lau-ftil  to  iiraiii  llrm.ic  in 
I  any  ixirutor  or  admiiiiflrittur  for  tin  sali  ,,/ 
rial  (Htati:  until  mii'h  executor  or  adiiiiiii.'iirntor 
i  ihall_fili  in.  the  SiiTilary'n  ojfiir  th<  rirlijirali  df 
the  Jiiilije  of  Proliate  for  the  county  or  dislrlri 
where  the  landx  lie,  that  full  anil  nmiile  m.cnrihj 
han  liceu  ijirin  to  account  for  thi  iiroccntx  of  x»'7i 
xalt  accori/inij  to  Ian:'' 

Wiien  John  McDonald,  tlic  owner  of  ccrtiiin 
real  estate,  died  insolvent,  iuiviug  a])pt)iiiit(l 
four  executors  of  his  last  will,  and  two  of  tin; 
executors  took  out  Probate,  and  ol)taim(l  uii 
f)rder  from  tiie  (lovernor  in  Council  for  the  sali 
of  tile  land,  under  which  the  laiul  was  sold  id 
Ciiisholm, 

IIi'/il,  that  though  tho  other  two  executoro  liml 
not  renounced,  and  the  two  who  acted  miiloi 
the  order  had  not  given  the  security  rc(H(>ik.;.riiy 
Statute,  yet  the  oriler  could  not  be  iinpiigiod 
by  this  Court.  * 

Halliburton,  C.  J.,  ilixxi.ntini/. 
Ghiiholm  v.  McDonald  et  at.,  2  Thorn.,  'MM. 

54  Geo. 3  (1814),c.l5    (r.5tiii{.8.,c.  1» 

Protecting  olHccrs  and  otiiurs  tlicir  as.si.-.liuil.-, 
acting  under  the  warrant  of  a  justice,  exl4!iiil> 
to,  and  includes  tiiein,  when  acting  uiidcr  an 
execution  sulistituled  for  such  warrant. 

This  Act  is  a  transcript  of  Imperial  '24  ( Ico. '.'. 
c.  '24. 

A  Surveyor  of  Highway  wlio  levies  under  cxi- 
eutioii  for  forfeitures  for  neglect  of  lalior  on  tin' 
highways  under  7  ( !eo.  4,  c.  '2,  is  protected  liy 
54(!eo.  3,  c.  15. 

Seaman,  2nd,  v.  DtWolf,  I  Tlioin., 

(2nd  Kd.),  i'J.i. 

55  Geo.  3  (1815),  c.  14 

(History  of  enactments  to  abolisli  csl.itw 
tailed)  — 

Ry  the  Provincial  Act,  .55  (Ico.  3,  c.  14, 
after  reciting  that  tho  method  tiieii  in  use  for 
barring  estates  tail  by  common  recoveries,  win 
liable  to  many  objections,  it  was  enacted  tliat 
the  tenant  in  tail  might  convey  tiie  lauds  so  liuld 
by  indentures  of  lease  and  release,  wliicli,  being 
duly  enrolled,  should  be  sufficient  and  effectual 
in  law  to  bar  all  estates  tail  in  the  lands  so  eon 
veyod.  Indentures  under  this  Statute,  tlioii);li 
by  no  inoans  fret[uent,  were  occasionally  i"  '"'i'' 
they  afforded  a  simple  and  effectual  ineaiis  f"i 
converting  the  estate  tail  into  a  fee  simple ;  and 


1389 


STATUTES.  NOVA  SCOTIA. 


1300 


Ihiil  without  tlic  iwscnt  of  the  lioir  in  liiil,  cx- 
|ii'i'M.s,  or  iiiipliud. 

In  /•(  Kslnu.  ofSimi>so,i,  I  t)l.l.,  ;{17. 

l&2Geo.  I  (iS'iO  21),  C.IH 

('I'liis  (jliupter  i»  wrongly  iiiiiiiln:i(!(l  "J.'l  in  tiic 
AclH.) 

Nut  a  (liicluriitory  Act  to  remove  donlits  as  to 
till'  naluie  of  the  aution.s  to  whicii  I  (iuo.  .'J,  c.  S 
ixlcndi'd,  lint  was  paHHcil  to  renuidy  an  evil 
iiri^ini,'  nndcr  S  (leo.  ;{,  ».  2.  whicii  tuialtlud  umli- 
tills,  hy  the  niitro  Keivici;  of  a  suininons  on  an 
iigiiit,  to  attacli  the  gooiLs,  eflbuts  or  credits  of 
uiisciit  persons  in  tin;  iiands  of  siicii  agent  to  an 
iinhniited  amount,  without  making  any  atlida- 
vil  lluit  a  dclit  was  actually  due  lo  them  liy  sucli 
iilisfut  person. 
MiiiiyoH  V.  Mnrinoii,  I  Thorn.,  (1st  Kd.),  p.  !().■); 

("iiid  K.I.),  p.  i;t4. 

3  (Jco.  4  (1822),  c.  32,  s.  21  - 

/■'/■  Hliss,  .1.  -  l!y  thi.s  Act  if  any  per.son  siiall 
lilt  1)1-  injure  ai>y  trees  planted  or  left  growing  on 
tiic  sides  of  any  puMic  .squares,  streets,  or  pulilic 
iiiylnvays  in  this  Province,  he  shall  pay  40  cents 
liir  each,  to  he  recovered  in  the  King's  name. 
Hliv  is  no  limiting  to  ohl  roads,  or  exclusion  of 
tKw,  the  penalty  extends  to  all.  Nor  can  it  he 
siiil  that  the  renuidy  is  cumulative,  or  that  the 
iiwiicr's  right  of  action  is  not  taken  away,  for 
Miiilfr  these  Acts  the  former  owner  him.self  may 
liii  prosiicuted  for  these  injuries.  Tlune  is  no 
ixit|)ti(m,  nor  shouhl  there  lie,  if  as  I  suppo.se, 
the  laml  itself  is  transferred  to  the  ("rown. 

V"  4  Will.  4,  c.  «0,  s.  1. 

4  Jt  i»  Geo.  4(1824),  c.»- 

(.Aii  Act  to  authorize  the  incorporation  of  a 
imipiiny  for  making  a  canal  l.y  the  Uiver  and 
Likis  of  the  Sliid)enacadie)  — 

i'liis  Act  and  the  foHowing  Acts  (l.S'JT,  e.  17  ; 
I"*'-'!!,  c.  4S,  and  ls;J7,  c.77)  are  the  various  Acts 
iiiatiiig  to  this  company. 

Tile  cases  concerning  the  company  ami  their 
"(flits  and  privileges  are 

Fitirhauks  V.  A'«A«,'2H.  &(!.,  147;  Ca.s.  Digest 
•'U  ;  Crriiihlou  v.  C'liiNirk;  2  R.  &  (i.,  !M( ;  7  S. 
L'.  K.,  :t4S  ;  Fairhaiikx  v.  Cnii/htoii,  ;20  N.  S.  K., 
(»«.&(;.),  S3. 

U  3  Geo.  4  (1824),  c.  7,  8.  3 

I'.iKicied,  "//«(<  lunajhrno  writ  of  allarhmnt 
'hall  l,i>  umtd  in  any  ratip,  exccfit  aijainst  nlismt 
w  iihxrondin,)  dihfm-s,  and  for  the  rcrorn-i/  of 
'I'l'tfi-nii/racti'd  /oinr  lo  I  hi  /Hissiiiti  of  litis  Ar/." 

I'wUm;  this  the  property  of  persons  who  were 
I'lfsi'iit,  a.s  well  as  of  those  who  were  absent, 
'^^"iilil  he  at  tached  hy  mi-iui:  process. 

Si  I  1  Geo.  3,  C.  8. 


I  Geo.  4  (182«),  0.  2,  s.  30     (T.  iilli  B.  8.. 

c   47,  a.  29- 

(forfeitures  for  neglect  of  lahor  on  the  high- 
ways to  lie  sued  for  and  recovered  hy  the  Sur- 
veyors of  Ffighways  liefore  Justices  of  the  Peace 
in  like  manner  as  dehts  are  sued  for  and 
recovered) — 

'I'his  procedure  was  stdistituted  for  that  under 
I  «ieo.  ;{,  e.  14,  hy  which,  upon  complaint  of  the 
surveyor,  such  forfeitures  were  to  he  levied  hy 
warrant  of  ilistress  and  paid  over  immediately 
to  the  surveyor. 

Surveyor  levying  an  exoeuticm  in  case  under 
7  (Jeo.  4,  e.  1»,  held  protected  hy  M  <!eo.  ."J,  e.  I"), 
which  protected  ollii'ers  and  others,  their  assist- 
ants, acting  under  a  warrant  of  a  Jiislii  e. 
Siumaii,  hill,  > .  /'.'.  ^  ' .if 

1  Ti  .-  .t::ndi':d.),  i<j:{. 

7  Geo.  4  (1820),  0.2- 

•lury  to  lay  out  or  alter  such  highway  or  road 
with  most  convenience  to  the  pulilic,  an<l  least 
prejudice  or  damage  to  the  owner  or  ov\  ners  of 
the  hind  in  which  the  .said  highway  is  to  he  hud 
out  or  alteied,  and  to  a.s.se.ss  the  damages  to  the 
owner  or  owners  of  such  lands  as  the  said  jury 
shall  think  reasonabli!  for  the  value  of  the  land, 
and  improvements  maile  on  the  same,  and  also 
for  the  making  of  fences  on  the  sides  of  such 
highways  (sec.  \l\).  All  jjuhlic  highways  here- 
after to  he  laid  out  as  aforesaid,  shall  not  lie  less 
than  (10  feet  wide  (sec.  I.S).  Commissioners, 
hefore  making  alteration  at  the  expense  of  the 
Province,  to  make  return  to  the  (ioveriuir  and 
Council  of  the  probahle  amount  of  any  special 
damage  which  it  may  he  neccs.sary  to  pay  for 
carrying  road  through  waste  and  unimproved 
lands  (sec.  17).  .S'<<  sec.  M),  relative  to  v<dun- 
tary  surrender  of  laml  without  chiirge  to  the 
owner,  for  a  pid)li(;  road  or  highway,  owner  .so 
voluntarily  surrendering  to  have  the  whole  of 
the  land  of  the  old  road,  in  fee  simple,  in  lieu  of 
the  land  so  given  uj). 

S"  4  Win.  4,  c.  «tt,  8. 1. 

7Geo.  4  (1826),  C.  3- 

( An  Act  relating  to  Commi.ssioncra  of  highways 
in  Halifax,  etc)  — 

A'  27  Vict.  (18«4),  c.  81. 

N  Geo.  4  (1827),  C.  17- 

(An  Act  in  addition  to  the  Act  to  authorize 
the  incorporation  <if  a  company,  for  nuiking  a 
canal  hy  the  river  and  lakes  of  the  Shulieii- 
aeadie)  — 

s''<  4  JiSGeo.  4(1824),c.  3. 


1391 


STATUTES,  NOVA  SCOTIA. 


1392 


S  liCO.  4  (tS'27),  0,  2J{,  S.  !J  I  ^oilaiiil  iiiliiron  iin  iil^,  ava/.-o  llu  <rli  lit  of  J)  ucini, 

I'luvi.U.s  t,.i    thr  ui.iminluu.hl    of   iippnusois,  I  ""''■^•"KV  '"  '"   ''"'"   I'll  ramm  lhnoj\   Ih  s„;,l 

1  tlirii  I'riihnliliri  shall  iirofii d  In  mah  ii  jii^l  iii"l 

who  iiro  •  . 

"Tou,.,.,-aisr„ii,l  rain.  I h,   laml^  imiilnl  for    "I"""'''-  '■alimfioii  and  a,./,rai.s,m,  id,  ammliiui 
III.    road,    and   ll„    diuna,,..^    lo    v»,/<   oini,  r   or    ">  »"  r.rnunslaiin  s  of /hi  ras, ,  of  th,  daiii,,;,, .  t„ 
,.  //(   iiiild  iiiih  III  rsdii  lliroiiilh  irlioii  land  ■mcli  m  ,c 

oiriii  )•<.  '  '  ■         I  , 

"To  rain,  and  ai<,.rais,  snrh  lands;  and  ,n  road  or  haihirnil,  or  alt,  ration  oj  an  old  ui„  ,  dnilt 
nsHisH  Ihv  da,na,i,s  lo  Ih,  oirmr  or  I,  naiil  of  sn,h  \  '■"".  si„,ili,;dl!,,  /.arlonhirli,  and  s,  ,.ar,il,l,,  „-h,ii 
lmi,ha,;'ordiiiijlo  Ih,  j„sl  and  nasomdil,    ralii,     >'  '"  '"  I'"'''  '"""■''  J'rorr<,'''rjhrda,,i,oi,  t„...,l, 

for  iiii/irnri'wi  ids  and  for  J,  iiiiinj.' 


if  th,  xam, , 

/'(■)•  Hiillilmrton,(".il. ,  Doild,. I,,  coHOdviHi;- 

I  Now,  in  lliuHd  AlIs  (i.  e.,  5  (Joo.  ',i,  i:  'J,  s.  .1; 

10  «C0.  I  (1S20),  C.  IH  -  I  in  <!i"'.  ••<.  »-■•  S,  «.  I  ;    «<>  «lo.).  :{,  .•.  I.   s.  I  ;   s 

(An  A.t   to  iii.l  tho  SU..I..-nii.',i<lio  and  Ciniil  <'''"•  ■♦•  "-•■  ~'^<    '  ''•■"•  ■*•  ''■  -'     »   ^^■"''   '•  '• 

,  (111,  H.  I  ;  r>  Viol.   (!.  ;{(>,)  wi!  Unci  till!  li'L'ishtliiif 
C  onipiiny)—  ,  ,,  ,  , 

S,,  \  Ai  ."l  Ii0».  I  (1S2I),  V,  2.  usinj,',  in.lisciirnmiitcly,  liie  words,      daiiiai;.'  t.i 

llu'owni'i"-"  Valium  of  liif  land  "-  "  i'xiilmsi- (.1 
2  Will    I  ( 1S;{2)    eft-  I  pii'''l'ii«'".t<  l'"''  1'1'kI."  ii'l  ^^'i'l'  l'"'  *""""  "''J''''  - 


(All  lo  antlioii/.(!  Ilir  Coniniissioncvs  of  Sticcts 
at    Halifax   lo  lioirow  money    foi'  ('('I'lain  \iw- 

JIOMl'S)  — 


to  oompensalo  tlu'  owner  whose  land  is  aiiniiicd 
and  taki'ii  for  a  highway.  These  Sliihilis, 
therefore,  made  in  /ifir/  maliria,  nuisl  lie  ciui 


N"    27  Vict.  (IWHl   f.  SI.  '  •'*'''"•'''  '"!,'<'""'''>  '""'  I  eonsider  that  the  siiiiic 


2\Vm.  1  (18.12),  <•."»! 

(An  Aet  resjieeling  jndj,'meiils  and  exeentions 
olilained  and  levied  against  lands) 

First  Ael  inlrodneing  I  ho  eh^inent  of  registra- 
tion of  judgments  liy  which  to  Itind  lamls. 

Ciddinll  it  id.  V.  Kinsman  ,1  ft/,,  .lames,  .'{OS. 

:i  Will.  I  {is;w),  cr»2 

(power  vested  in  Court  of  Chanecry  tr)  catab- 
lihh  rules  of  praetiotO  — 

If, Id,  that  the  Knglish  rule,  that  conversa- 
tions witii  and  adndssions  liy  defemlants  cannot 
he  given  in  evidence,  without  having  lieeii  set 
out  in  the  liill  of  eoni|ilaiiit,  is  not  apidii^ihle  to 
the  practice  of  the  Court  of  Chancery  in  thisl 
Province.  I 

Caldwill  ,1  (d.  v.  Kinsman  1 1  al.,  .lames,  .S9S. 


I  Will.  4  (lH:i4),  c  «ft,  s.  1    (f.  illi  U.  S.,  I 

c.  45,  ss.  2  and  3 — 

Directs  the  three  freeholders  "in  n/iair  to  and. 
riiir  anil  ixaniin,  into  tin  in-ojiriity  anil  ni,;ssi/i/ 
of  such  jirojiosid  ni  ir  roail  nr  hiijhn-ay,  or  alli  ra- 
tion of  an  old  onr,  ns  I  hi'  rasr  may  In,  and  if  in 
thiir  opinion  Ihr  same  shall  In  pro/iir  and  vii-is- 
sary,  Ihm  In  /irornil  to  lay  ont  and.  murkoffsmh 
■neir  rami  or  hi<ihirny,  or  all,ralion  of  an  old  nnv, 
in  sitrh  iray  as  may  In  7nosl  for  Ih,  pidilir  ,jnod, 
and  of  till'  liasi  possdih  damaii,:  lo  th,  /nrsoH  or 
jiirson^  thrnnijh  irhosv  /iropirty  it  may  In  ni'i-is- 
sary  lo  run  Ihi-  sami',  anil  Han  upon  harimj  asnr- 
taini'd  the  (xti'td  ofsurh  ww  mad.  or  hii/hiray,  or 
alti  ration  of  an  oldoni',  ami  In  in;/  madi  avquain- 
till  with  Ihv  dislanrr  the.  sami  shidl  or  may  run 
throwjh  any  pe.r.'ion't  property,  the  nalnn  of  tin 


meaiMug  should  he  attaelied  to  languages  tluis  in 
discriminalely  used,  wliich  meaning  is  well  ( nl 
culated  to  ellect  the  olijeets  the  legislature  had 
in  view  when  it  usc^d  them,  and  that  object  was 
evidently  to  compensate  the  owner  for  the  dam- 
age he  sustaineil  )>y  allowing  the  |iul)lic  to  use 
his  laliil  as  a  highway,  without  divest  iiii;  I  lie 
fornuu-  |)roprietor  of  the  owiu'iship  of  the  snH 

/'(/•  Pdiss,  DesHarres  and  Halilmrton,  .1.1.- 
'I'he  title  to  the  soil  of  highways  laid  oiil  under 
the  .Statut('S  of  this  Piovince  through  the  lands 
of  private  individuals,  and  for  which  they  have 
received  comjjensation,  is  divested  out  uf  llif 
owner  of  the  adjoining  land,  ai:d  alisuhilely 
i  vested  in  the  Crown  for  the  use  of  the  iiuhlic. 
Knrh  V.  />aiiphinii ,  .lames,  1,'p!I. 

4  w  III.  4  (18:ji),  c.  n 

(.An  .Act  for  increasing  the  cajjital  stock  of  the 
Shidienacadie  Canal  Company,  and  the  miniliii 
of  shares  therein,  for  eonft^rring  further  |io\\er< 
on   that  corporation,  and  for  other  purpcises)  - 

.sv.  4  Jt'HJoo.  4  (lH24l,c.:{. 


I  Will.  4(lS;JI)C.ft;^- 
Copied  from  9  (ieo.  ;{,  e.  1(1,  wlii(^h  aincndi'd 
■21  .lac.  1,  c.  '2,  (Nullum  Teinpus  Aet)  restrainiiiL' 
Crown  from  suing  or  claiming  Ity  reason  of  any 
light  or  title  accrued  for  si.xty  years  i)revieiis  lo 
that  time.         Sroll  v.  Ilmdirson,  '1  Thoiii.,  ll'>- 

a  Vict.  (1«40),  c.  12 

(.Sipiatters  on  Crown  land  cmabled  to  ohtaiii 
title  on  paying  reaaonalile  piirehaso  money) - 

Shows  the   cd<'ineni;y    of  the   Crown  Inwaids 
intrinlers  on  Crown  lands. 

Sroll  V.  Ilmdirson,  '2 'riiiini.,  II"' 


1393 


STATUTIiS,  NOVA  SCOTIA. 


13!)4 


:t  Vict.  (IS40I,  (•.'.'» 

(An  Act  to  iliviilc  mill  .■scl  ud  tl 


!      H  Vid.  (iSl.i),  c. 'ilJ 

I'liwiLsliii)  (it        Ji  |ii(iviili'.s  iliiil  the  tifi'liiililiT.s,  ill  liiyiiij^  ntl' 


Saiiil  Miiiy's,  ill  III,'  Ciiiiiiiy  of  (inysliiiiniiuli,  ii.s    111,,  new  n>.u\,  .sliiill  |iiii  ii  .■.•iiiiiii   viilu,'  ,iii  tlii! 


isipiiiiitc  iiiiil  ili.stiiiit  hisiijii 


I  Vi<'l.  (ISMi,  clft 

/'. /■  SI,  Will  t,  M.  II.  I!y 
(i\ii|il  as  ii!,Miiisl  laiiils  in  ]Miss,'s.siiin  nf  I  lie  li,  i?' 
nf  a  i|,.|)liii-  liy  liiiiiil,  to  which  luir  rral  iisscl.'^ 
Ii:iil  (Ir.'iiH'iiiU'il),  the  crcilitor  liiul  nn  ncuni-.s,' 
Mil  ihc  real  estate  iif  his  delilor.  The  llli  In  llie 
KMli  KiM'tidii.t,  inclusive,  of  the  (irsi  Act  of  the 
\\fsl  (Jeiieiiil  As.s,.MiliIy  ((invt'iieil  ill  the  eiiliiiiy, 
<lii'«  that  this  law  prevaileil  at  that  early  iieiiml 
ill  this  i'rovinee. 

Ill  Kii>,'laiiil  (until  tluM-eeeiit  A(,t  itf  I'ailiameiil, 
I  .^  2  Viet.  ,:.  I  10)  the  Statute  i;{  K.lw.  1,  c.  Is, 
was  that  uiiiler  which  iheereiUtfir  iniule  his  del  if - 
Hi's  laiiils  iivailalile.  NdW  until  he  had  .sued  nut 
ihi'i'legit,  li,!i),i.ssc.ssedii(irij,'lil  In  them  which  li,' 
■  niilil  eiifdicMii  aCdurt  i)f  Law,  and  lheii'fi)re 
i(|i!ily,  accdidiiij;  U>  the  niaxiiii,  followed  the 
l.iw.  'I  his  rule  of  ('(iiiity  is  the  j,'ovi'rninj,'  piiii- 
ipliMif  I.,(ii(l  Cottenhaiirs  judgiiieiit  in  A', ft/  v. 
Till  l)iiL(  of  Marlhorowih,  for  in  that  case, 
uiiiisel  unavailiiigly  urged  that  as  the  coin- 
|il;iiiiaiit's  oltject  Was  merely  to  reach  e,|uital)le 

lis,  suing  forth  an  elegit  (which  could  not 
illni  iheiii,  mill  which  it  was  admitted  need  nol 
III'  ivtiinied  liy  the  Sherill),  would  have  lieen 
niilliiiig  Imt  a  useless  form  ;  i<iiii/(i«,  suiitiiiir, 
■1,1' m.  15ut  in  this  Province,  registralion  of 
till'  certificate  comformalily  to  the  Statute,  4 
Uiliiria,  of  itself  gives  the  creditor  a  specilic 
li'ii  ii|ioii  all  th,'  ,lelitor's  lands,  and  the  right 
iiiilicai:li    as   fraudulent    any   conviiyance    of 


o|,l  road,  and   lay  it   oil  to  the  owner  as  a  coiii- 
>>'"   l{.\FliWAVS,  .I,    I"''"*'^''"!'-  i"  wholi'iir  iiiparl,  for  the  land  taken 

I  for   the  alt, Mali "and   the    land    of    thi-old 

road  shall  lieeonie  the  sole  and  alisoliite  |irii|ii'i  ly 

the    common    law  ,  "*'  '''"'  ""'  *^""'  '**  Ix'l'L'liy  vested  in  the  |iersons 
to  whom  it  shall  lie  .so  laid  oil'." 

/'ir  IJIiss,  ■!.— Here,  then,  again  we  have  the 
expression  of  v;iliiiiig  Ihey  are  to  put  a  value 
on  the  old  and  lieyniid  a  doiilit,  it  is  now  used 
for  valuing  the  land  itself,  for  that  is  thereupon 
given  iiji  alisolntely  to  the  party  anil  vested  in 
him.  NVIiy  should  not  the  valuation  [>ut  upon 
his  laml  hear  the  same  moaning"?  The  Statute 
exchanges  tlu^m,  jtays  the  land  of  the  olil  road 
as  the  price  of  the  new,  and  does  it  liy  an  .ihso- 
lute  transfer  of  the  fnriiier.  Docs  not  the  whoh; 
tran.saction  clearly  indicate  a  reciprocal  trans- 
fer'.' a  giving  and  taking  to  the  same  extent? 
What  there  is  in  tlu;  language  to  limit  it,  or 
«lial  in  ihe  niasoii  of  tji,' thing,  I  ,iinfess  my- 
self iiiialilc  to  disi'ovel. 

V'  nvm.  I  (1,s;m  ,c«j»,  s.  1. 


11  VIof.  (ISIS),  c. »» 

s  1  21  VUt.  (1S«I),  «•.  SI. 

li  VI('t.(lSJJ»,c.  42    (KiiimiiijiSodoties)  - 

l!orrow,d  from  li  \  7  Wm.  I,  c.  :{•_•  (imperial). 
Discussion  of  the  two  Ads. 

Shujtir  v.  Ji)hii-</nii  d  a/.,  I  Old.,  fitfJ. 

11  Vl€t.  (lS.il),  0. 17,  ss.  14  ami  U 

(Act  to  incorporates  the  Nova  Scotia  Kleclric 
Telcgralih  ('oiiipany)  - 

/'n-  I'di.ss,  .1.      |5y  the  I  Uli  .section  of  this  Act, 


■u.li  land  which  may  stand  in  the  way  of  his  i  full  authority  is  given  to  this  telegraph  eomi)any 
I'luiiiiiig  .sat isfai'tion  of  his  judgment.  '  lociiti'r  inloany  lands,  ami  set  oll'such  jiartsof  it 

TLiiMighiiiit  this  Statute  tin:  legishitive  inteii-  ;  as  may  lie  deemed  necessary  for  the  lines  of  ti'Ic- 
■m  til  make  the  registered  judgment  an  iiicum-  |  graiih.and  to  take  any  posts  or  liuihling  materials 

nece.s.sary  to  make  or  repair  t  lie  lines,  making  the 
owner  due  eompcnsation  ihi'i'efor;  and  liy  the 
l."illi  section,  in  ca.se  of  disagreement  lietween  the 
company  and  the  owner  as  to  the  value  of  any 
land,  |)osts  or  Imilding  materials  whiuli  the 
conipany  may  have  taken  for  the  purpose  afore- 
said, such  di.sagrecsmcnt  shall  lit;  .settled  liy 
arliitration.  This  language  is  certainly  very 
strong,  and  seems  to  me  altogether  imperative. 
If  we  should  construe  the  Act  as  permiissivc!  only, 
it  would  take  away  its  whole  force  and  effect, 
and  reduce  the  clause  reiiuiring  arliitration  to  a 
dead  letter. 

MrKiir.i!   V.  ;I/,'AV(//,  •JTlioin.,;{'2l. 


i'liiiiLC  similar  to  a  morlgagi'  is  appai'ent.     Sec- 

'I'lis  I  and  ;<  more  especially  sustain  this  view. 

Cnlilirill  1 1  III.  V.  Kiiisniini  if  itl.,  .lames,  ,'i!),S. 

I  VU'l.  (ISM),  f.  .W - 

l.\il  III  incorporate  the  Town  of  Halifax)— 

S"  27  Vicl.  (1S«1),  c.  SI. 

•  Vlrt.  (1S42),  c.  8«- 

il'uiiimissionerH  authorized  to  make  liargains 
"iih  pi'iipri,.t„rs,  through  wliosts  lanihi  th(>  new 
iiii' i>f  mail  shall  run.  I'rolhonotary  to  give 
i-rtiticale  u>  the  i)erson  entitled  to  eompensa- 
'"'11  fur  the  land  taken  from  him  for  t\w  use  of 
•lii's^iiil  riiad  — 


ir»  vin.  (is,i2),  f.  i.'j 

I       I")  Vict.  (IS.Vi),  ir.  i;{,  as  amended  l»y  10  Viet. 
•S'l'   1  Win.  4  (1S;M),  C.  Oft,  S.  1.  !  (IM,-);{),  e.  '24,  creates  a  corporation  called  "The 
4(i 


139-) 


STATUTES,  NOVA  S(X)TTA. 


\m\ 


(.'(•niiiiissioiuTs  of  llu'  LiimUii:  Asyliiiii,"  ic  lake        1((  VU't.  (IS.M),  V.  I,  s.  200  - 

a   .•onvcyii.iK'.'    of   a   mif    iUi.l    fivi'l    a    l-iiiiali.'        "  In  (illra<,  ■.  in   n'hirh  an;/  r'ir'i<'ilii>  mnnUr 

Asvliiin  <\l'  'I"!!"'  ""'  I  i'/ii'i  ""III  III  III    rliiir  ilii;/^.   i\  /./•( 

|{y  •J4  Vict.  (IS(il),  c.  7,  tlic  j^'.'iu'ial  iiiaiia>,'f-  yrrilml  lii/  Hiin  m'  luii/  nllur  Ail  i-iijiihiliiKj  iln 
iiuml  of  tim  hospitaUvas  vMnl  in  ill.'  iloanl  of  I  ,^;uli,;  ,  or  Inj  'hi  villi s  or  /.rartin  of  llu  Cn,;. 
\\„..\.^  \lhi  tami   sliii'l  In  rirkonfl  i.rrliiilrih/iij  th  jir^i 

\\y:\n\  K.  S.,  ..•.  '-'I,  H.  1,  the  liu'al  til'*'  "'  ''"'  i  ''",'/  '""'  im-liixirili/ of  llu  last  ihiij,  W<'." 
hospital    ai.'.l    imun.i    vstr-l    in'tl.f    Uoar.l    of]       /V  H'.liss,  J.    -W.Tr  it  not  fo,  tl».  i.tii,  ••,lr;,r 
Works,  wlii.l.  wa.s<'onslitul.Mlal.o.ly.(Ml.oratf.  hlays"  having  Immi.   intnulnr..,!  ml.,  llw   A. I,  I 

I'.y  ;{(!  Viil.  (ISCT),  c.  1,  s.  •_' :  "  Instcail  of  a  ;  wonlil  liavf  no  ditlii'iilty.  I  ilo  not  sec  Imw  i, 
Uoar.l  of  Works  .    .    .   ami  Clii.'f  Coniinissioucr  j  parly  can  lie  .•nlitlcl  to  have  a  .••■rtaiii  luiiiiK.i 


..f  W. irks  anil  Mines,"  it  Wiis  .•na.l.'d  that  th.Mv 
shoiil.l  1)1'  "aConnnissi.incrof  I'lil.lif  W.U'kHaii.l 
Mines,"  who  sh.ml.l  "  perform  lh>'  iliiti.'s  of  i.lit 
Iloanl  of  Woiks  an.l  Chii'f  Coinniissioncr  .if 
Minus. " 

r.y  n  Vii^l.  (ISTS),  o.  II),  a  new  .•.iriiorali.m, 
oalle.l  "The  Conniiissioiier  of  I'lililie  Works  ami 
Charities,"  was  ereet.Ml,  in  whi.h  the  manage- 
ineiit  of  the  hospital  was  vesl.'il. 

Kiurni  1/  1 1  'il.  V.  Cmlnian  ii  nL, 

()  H.  .<•(;.,  !»•-'. 

10VIH.  (18.M),  C.  "i,  s.  10 

When  a  Statute  .lireets  that  eaeh  party  shall 
choose  an  appraiser,  ami  tlie  tw.i  appraisers 
shall  sel.rt  a  thir.l,  ami  the  three  so  appointe.l 
shall  (leteiniine  the  matter  in  (;.):itroversy,  it  is 
a  complianee  witli  the  Stat  lit.'  if  after  a  disagree- 
nienl  as  to  the  matter  in  eontroversy,  the  two 
select  a  thirtl. 

///  ;■(   Thomas  Kinmj,  ■J'i'h.iin.,  14. 

10  Vkt.  (isr»:{),  V.  1,  s.  20      (New  ITuctUc 

Act)— 

In  appeal  causes  .Icfcntlant  will  he  let  in  t.i 
(lefen.l  after  judgment  against  him,  umler  this 
secli.in.  y,,y,    .^.    7V„„„/„s, -i'l'lKini., '-'SS. 


of  days  unless  they  he  clear  days. 

Mush  rs  V.  /'/(/»/((//,-  Thiiiii 


i'.'!l. 


10  Vict.  (1S.W),  c.  I,  s.  40 

"  l(7«c<  liii)  iniinii  ilifinilanis  an  joinid  in  an 
iiHioii  o/ronlrail,  I  hi  iihiinlif  shiill  In  iil  lihirty 
lo  rerorir  aijaiiisl  snrh  di/imliini  or  ilifiniliinls  as 
a)>i>iar  lo  In  liahli ,  nnil  llu  olhir  dij'i  nilanl'<shnll 
In'  wiinilliil  n-ilh  lib'-  provixiom  raxini-limj  m/o//; 
and  iridinri  as  in  I  hi:  msf  of  loo  mani/  /i/ainlifs, 
and  Ihi  di/illdunls  so  aiqnillid  shall  In  inlillid 
lo  Ihcir  costs. " 

Necessaries  supplied  to  a  vessel  tilting  for  sea 
on  the  order  of  <ine  of  several  i)art  owners, 

//lid,,  that  the  other  .twnei's  ate  lialile,  unless 
they  show  that  an  (exclusive  credit  was  given  to 
the  part  owner  ordering  the  goods. 

Action  against  s.^ven  defen.lants  as  j)art  own- 
era.  V'er.lict  against  two  oidy  sustained  under 
I'raet.  Act,  .s.  40,  the  evidence  of  ownership  of 
the  remaining  .h'fendanis  lieing  insnltieient  to 
satisfy  the  jury. 

Colli)  V.  Tnriur  tl  al.,  ,]iinwa,  X\2. 


lOVUt.  (I8.W),<'.  I- 

s     STATUTES,  IMPKKUI,, 
n  i:  IS  Vict.  c.  12.-1,  ss.  s.'i  and  si;. 

10  Vict.  (tS.M),  c.  12,  s.  10 

"  'J'hi  rosis  of  I'll  /irin'i  I  dinijs  mi  rilalion  In  mi- 
ill  r  anaironni  ihiill  nol  In  alloinil  lujaiiisl  Ih  in- 
i-iilor  Of  (ulmiiiislralor,  iiidiss  Ihi  /larli/,  ui  n-lin" 
inslnnrf  swh  iirorndimjs  shall  han  Imii  Iml, 
shall frsi  han  ijii'cv  l<ii  days'  iioliir  lo  swh  ire 
nilor  or  (idministralor  ruiiiirimi  him  in  mnlir 
siirh  iirronnl," 

Where  in  the  absence  of  such  notice  llic.lihlL'f 
of  Tniliate  ordered  the  administrator  t.i  pay 
costs,  the  order  was  wet  aside  anil  the  tnst- 
ordere.l  to  he  paid  .)iit  of  the  estate. 

/;(  re  Esliilr  of  llalston,  '2  'I'limii.,  Ilt.'i. 

10  Vict.  (1S"»;J),  c.  17    {Kivcr  Kislierics  AcD 

I      Appeals  under  uuist  he  made  to  llie  Sessimis. 
Uowjh  V.  Morion,  2  Tl i..  Iii 

l«Vicl.{lH-|3),c.  24- 

(( 'ommissioners  f.unatic  Asylum)  — 

s'm  l.ivict.  (is:.2i,f.ll 


1«  Vict.  (ls.->:5),  c.  iw 

Sr,  2IVict.  (IS«li,O.Sl. 

10  Vict.  (1S5:{),  c.  m,  s.  I 

''All  Ihi  jioinrs  mill,  dnliis  noir  In  hi  iw'i 
irnrisril.  hi/  Commissioiii'rs  o/Slnils,  or  irlii'i 
mail  hiri'iijhr  Inj  anij  Ian-  In  ronfirnil  on  ««''' 
Commissioiiirtorolhir  lib  ojlinrs  in  llu  -no"' 
loinis  of  this  rroriiur,  shall  In  hild  ami  if  iri-'l 
in  flu  Cily  of  Halifax,  hy  swh  sni„ri\,i<ii'\"''- 
n-ho  shall  III  rirlhiliss  xirris,.  Ihi  saim  >»/;/•'"" 
any  ordir  of  Ihi-  Cily  Counril." 

This  section  transfers  the  powers  ami  iliUi'- 
hel.l  and  exercise.l  liy  C.nnmi.ssioners  of  Slmi> 

to  such  superintundenla,  wh evert ImI.*".;'!"' 

to  exercise  the  sanus  sul.je.;t  to  any  imiUt  of  li"' 
City  Council  ;  aiul  upon  reftren.:.'  to  llii'il'i'"'* 
of  C^omuiissioncrs  .)f   Streets,  as  presciibiil  i'V 


;{!)7 


S'I'ATIJTKS,  NUVA  S(J0T1A. 


i;ws 


l.iw,  we  liinl  llicir  duty  is  Ik  icninvi!  all  iiiciiiii  ^(iniii  tin  iiiirl.iis.iinnuil  rmiri  iiii  nll'i  In  ruinnl 
liiMiMcs  ii|Miii  III!'  .sliccis,  |ii('viiil  4iiiiinii'liiiu'lil.s  '  iiiiil  I'lil  ill  iKsiir  III/ llif  II  IIII  iiihiii  III  ff'llii  /I/I  rittit.' 
lliciiMii  as  ni|iiir('(|,  ilr,  etc;  with  |iii\vcf  in  iilniiliiHis  ;  mnl  niufi  (In  i;  is  iin  ri  liliriilinii. 
illailicasi'M  tn  ;,'raill  lifniiis.sioii  to  |)cis.m.H  {II  [till  iiliiiiilillslin'l  1,1  Inliiii,  to  hilCi' jnilK  il  IkkiIi 
|il,i.r  ill  the  Hli'cuU  liiiiU.'riiilH  for  Imililin^'s,  tic  ;    ,,»  lln  ih  fi  inlnid's  iilms." 

■,iil.ii'.'l  of  coiil-Hi',  to  tlu'onU'i'of  Iho  City  ('onn    I      Wluii    the    |ilaiiiliir  in    icpliA  in    |.iimcc.Is   to 
■il.     Here,  tliiMi,  we  liavu    the  Sii|k  rink'iiii.nl  I  iii.ii  witlioiil    pleading,'  to  lliu  avowry  or  in^ni- 

1 /anctMil  (U'fi'iiclanl,  it  is  a  niin-lrial,  an  avowry 
or  I'M^'iii/.aiici'  not  licin^'  a  plra  williin  tin;  incan- 
iiij,'  of  sci'iioii  •_'!.'!  of  the  I'railici'  Ai'l. 

Sk-iiiiiii'  V.  t'liiib  '/(//,,•_• 'I'lioin.,  IS'l. 

IM  VUt.  (IS.W),  C.  »,  s.  2«    If  .ilh  K.  S.,  »•. 

107,  s.  13 

'I'lii!  siiliscriliiiiK  witness  to  a  cIlimI  mcd  not  lie 
liiodiiCL'd  if  the  liandwritiiiLjof  tlif  parly  inakin;,' 
the  instriiinunl  can  lie  ollu'rwisc  proxid. 

IVooilx  V.  /'/•(/«/•,•_> 'I'ljoiri.,  I,S4. 

IH  VId.  (lH.|-»,  c.  .»;{,  s.  IS    (1.  nil  K.  s., 

c.  94,  H.  35G 

(Assii^nnu'iit  of  clioscs  in  action)  — 

The  Slututi;  never  intended  to  take  away  the 

riijht  of  the  assignor  to  siic  witli  tiie  consent   of 

the  assij;nee. 

llWs/i  V.  /A/;7,  •_•  Thoni.,  |(K». 

Tile  notice  under  the  Act  must  s|iecify  the 
exact  interest  of  the  iissijjiiee  under  the  assijjn- 
iiieiit. 

ll'iii-il  V.  MiDonnlil,  -1  'Ihoni.,  4l'L'. 

1!»  VUt.  (iS.iO),  c.  '20 

("oiisolidated  in  .'ird  !!.  S.,  c.  4.*!,  c|.  v. 

'i)>Vid.  (1S5J),  c.  i;{ 

(Assessment  of  Railway  daina;,'es)  — 

Wliere  a  jury  on  appeal  from  appraisement  of 

damages  under  this  Act   assessed  damages  on  a 

wrong  prineiple, 

III  III,  that  the  ("oiirt  had   pownr  to  set   aside 

their  vi'rdiet. 

FiHi  ill/  V,  Coinilj/  of  lliili/iix,  "JThoin.,  4 1  "J. 

21  Vid.  (ISOI,  f.  I,  s.  12 

■'  W'hil'i  II  ilij'i  liiliilU  ilihliih  In  sit  ilji 
fruilil  lis  II  ilifriirr,  nr  ii  iihiiii/ill'  In  n  lij  iijiiin 
friniil.  ill    iiHSiri  f   tn    till    jiliii  nf  tin   ilrfi'iiiliint . 

it  must  I  If  /ili'iiili'if." 

This  section  extended  the  ]»rovisions  of  the 
IVactice  Act,  'Jiid  H..  S.,  c.  I.S4.  s.  74. 

MHIrii/or  V.  I'liltirsoii,  I  ()ld.,LMI. 

H  Vid.  (ISOI),  c.  .1    (imis  orsnic) 
•S' '  STATUTES,  I.MrKKIAL,  18  ii  1»  Vict.  C.  3U. 

21  VId.  (18«l),c.  7 

(Managuiiiciil  uf  HospiUiI  veMted  in  lioard  of 
-.vorks)-  .s',.  15  VId.  (1852),  c.  13. 


u|  Streets  not  only  anthori/ed  to  remove  all 
iiiriiinliraiices  llieri^froin,  hut  his  particular  duty 
^  IH  cause  iiieiiinhnineeM  to  he  removed  ;  and  for 
iiiy  nc,i;lecl  or  injury  that  may  arise  to  a  party 
imipi  a  failure  on  his  part  in  the  iK'rformance  of 
liis  iliil  ies,  redress  niiiy  properly  lie  had  from  liiiii  ; 
I'.il  how  the  defendants  can  lie  made  lialile  for 
.1  111  each  of  duty  on  his  part,  I  am  at  a  loss  to 
I'liiiccive. 

I'Jnii.s  V.   Thi.Citi/ii///iili/n.i-,  I  Old.,  III. 

Iti  VId.  il.sri:{i,  c.  (Mi     liuoriHtrnlion  of 

Kinji's  College,   Windsor    DismiH.sal  of  pro- 

le.ssor  - 

A'l    ll'//s.)»,  (i  K.  ,'t  (;.,  ISO. 

KVId.  (1S5I),  ♦■•  I 

("iisolidated  in  .'{id  K.  S.,  c.  7<>,  i|.  v. 

I«  VId.  (1851),  ('.  I{>,  IS.S.  2  UIKl  3 

S.  I.  ■•  .\liilis  mini  tiilr.  Iiiilil.  riiiiviij.  mnl 
tr'tiisiiiit  ri  III  isliiti ." 

.  ■_'.      "  \'ii  titli   In  mil  I  stuli   slinll  III    iiiniliil 
Mil  iirriiinit  I  if  till'  iiliniililr  nf  ii  ml  fni'iili  I'  mi'lii  r 

■  hnlili  r  tlnri'iif." 

S.  ;!.  ■•  Xntltiini  ill  this  .[•(  sinill  Imri  tin 
■  ihi'l  nf  I'liiijiriaiinj  nr  rrinliriiiii  rnliil  tin  titli 
•n-liiiiii  nfiiiiij  iilirii  iiiiin  iiiviilid  iiv  iiiriiiiiilili 
•I  Iniini  nifniTi'il  mi  iirviinul  nf  ulii  limji  ." 

I'll-  Sir  Will.  Young,  C.  J. — I  would  have  no 
litliciilly  in  holding  that  the  plaiiitill's,  though 
iliciis,  and  not  coming  within  17  \'icl.  (IS,">4), 
III,  s.  ;{,  ccmld  have  inaintained  ejectment. 
i  |«iii  principle,  il  would  seem  that  so  long  as  a 
-nlliiiciit  estate  remains  vested  in  the  alien, 
ji;h/i/((  iiriiliii,  until  otiiee  found,  he  may  niain- 
Miii  ejectment.  .J  fortiori,  he  may  niainlain  it 
■iimiiri.  droit,  nn  executor,  adininistrator,  liead 
'liii  corporation,  or  the  like. 

ll'illiams  It  id.  V.  Mj/irx,  •_'  N.  S.  I).,  Mil. 

IH  Vid.  (1855),  e.  4,  s.  243  - 

■  Till rr  sliiill  hr  nil  fitrtlnr  itlindiinjs  iifti  r 
'"  iiliii  nf  tlir  di'J'i'iiditnt,  ijrijil  n,  diiiinrrrr 
■'"ii(ii.  or  a  rijdirfttiiiii  to  a  plm  nf  si'l-nff,  nr 
r'"'  ",/'  tiiuttrr  nrriirriinj  snhsriiniiiUij  tn  tin 
''•nmi' iifi'mnU  nf  thr  nclinii.  iiiihss  Inj  tin- 
V'iid  li-nvi'.  nf  till'  Cniirl  nr  a  •liuhjv,  nr  nn 
'fiMi'iitinii  In  itlliiw  surh  fiirtlnr  jdiiidiiiii, 
'Mill sliidl  null/  III'  nllnwid  in  rusr tin:  rial  ijitcs- 
'''J"  or  ijueslioHs,  wlitllur  nf  fact  or  bun,  be- 


i;jui) 


STATUTES,   NOVA  SCOTIA. 


1 10(1 


21  vii-t.  (isnii,  c.  :u> 

MVId.  0Mi'2),«'.  i 

'I'lic  ilircilms  (if  ii  iiim|)iuiy  incniiMiiitiil  iiiiilir 
Acts  of  iSCi'J,  I'liiiplcr  •_'  (Ki'V.  Stilts.,  ."iiil  series, 
T.'iO),  iiititiiled  "  .\ii  .\et  f(pi'  <.!it'  ine(>iiiiiriilii>ii 
iiihl  \viiiilin;{-iip  iif  ji>iiit  stock  coiii|iaiiies,"  Inive 
|iowel'  to  iiioi'tj,'Hf,'c  the  propeity  of  tlii'  compuny 
to  (liseliiilj^e  olili^ations  fi:r  wliicli  tlie  sliait- 
Iiolili'is  HIT  liiilile,  and  would  loiil iiiiie  lialile  in 
tlieir  own  persons,  if  there  were  no  niortj,'a,L;i'. 
The  power  to  liorrow  money  implies  the  power 
to  inortga;,'e.  In  making  calls  npor  coiitrihn- 
toiies,  s\iniinonses  will  he  granted  liy  a  ilmlge  to 
the  several  parties  ic(|uiring  the  amounts  for 
which  they  are  lialde  lolie  paid  within  aspi'cilied 
time,  without  costs,  unless  resisted. 
Ill  re  Xtuli  Brick  A:  I'olhry  Atduiijhrluriini  Co., 

'A  N.  S.  I).,  •_'.-)4. 

W  Vict,  ami),  t.  7    (Bills  otSale) 
>M  STATI'TKS,IMI'KKI.\1,1S  A;  l»Vld.  V.M. 

'_»■}  VIcl.  (18«*i),  t.  ;n,  s.  11    IT.  21  Viet. 

(1864),  c.  81,  K.  655  - 

■•'/'III  ('ill/  ('iiiiliril  iiiiiij  ih'rnl.  Iiilililiinis 
ilii  mill  iiiiisiiiin  s  ili'ili  r  tln''<  .1''/,  »//<///  iiin.sH- 
iliiliiiH  III' llii-  flirts  mill  I'lilii'irliiiii  nf  tin  nn'inrx 
iir  hiiililirn  hifnrr  II  .Iniliji  nf  tin  Siipn  nir 
('iiiirt.  Ill  lir  i>iillid  (liiKH,"  tki:. 

The  alliclavit  upon  wliicli  the  application 
\inder  this  section  to  i  du<lgc  was  madu,  was 
helil  to  have  licen  rightly  sworn  liefore  a  Com- 
missioner. 

Vm  il,iLli<A.\,  CITY  OF,  7. 

Till  City  1)/  //n/ij'ii.i:  V.  MrLmni,  I  01d.,()!(fS. 

•-'«  vii'i.  (iww),  f.  n,  N.  «- 

••  Airiiitiils  uliiliil  slniU  In  inrlinlnl  iiiaiiinj 
.\ii-iiriliis  iiniilr  riiid  lnj  'Jinl  JliiK  Sluts.,  r.  'J'J, 
mi.  16." 

This  lilies  not  extend  to  actions   commenced 

before  its  passage. 

Sniltli  V.  MiXiil,  '.'Old,,  -:■>. 

'iOVU'l.  (ISIW),  f.  8»,  s.  7  - 

(Act  of  liieorponition  of  .Street  Railway  Com 
pany)  — 

■'  'I'lir  jiituriui'lll  iir  iillnr  Slirfiin-  nf  llir  riiitd- 

ii'Kij  is  tn  III'  kijii  iilifin/s  in  lliiiminjh  riimir  l»j 
llir  riiiniiiiii'l  ii'iihiii  tlir  lrni:k.  mnl  tli m-feH  nn 
iiirli.  siile  thi'rciif." 

I\r  Young,  C.  J.— What  is  the  meaning  of 
thorough  repair  V  The  defendant's  counsel  say 
it  has  nothing  to  do  with  the  rails,— that  if  the 
track  within  them,  which  the  horses  travel,  and 
three  feet  on  each  side  of  it,  be  in  perfeet  order, 


the  rails  themselves  may  protrude  to  ,iny  i  \Uiii 
without  violating  the  charlei-.  In  other  umils, 
they  may  lie  in  such  condition  as  to  ntnlii  .i 
passage  across  them  lia/ardous  or  impossiliii  ,  uhI 
if  a  carriage  attempts  it  and  is  iliiniii;:ii|  (.i 
liroken,  thi're  is  no  liahilily  on  the  part  nl  tin 
eom]iany,  and  no  rediess  to  the  owner.  Siirli  ,( 
construction  appears  to  me  to  involve  a  |Hifiii 
absurdity,  and  looking  to  the  olijects  and  .■mu|ii 
of  the  Act,  and  reading  the  three  seetimi- 
together,  as  we  ought  to  read  them,  1  have  imi 
a  doubt  that  the  company  are  bound  to  k(i|i  .il 
all  times  their  rail«,  iis  they  weie  laid,  level  wiih 
the  sui'face  of  the  street,  so  that  carriage.^  ciiii 
safi^ly  and  snuiolhly  pass  over  theiii. 

I'liiiliiii  '  I  III.   V.  Till  Ciiy  I'ailroail  Co., 

•_•  N.  S.  1).,  •Jill). 

/'((•  .lohnstime,  K.  J.— The  authority  kivim 
to  the  City  Council  to  supervise  and  direct  tin 
repaiis  of  the  horse  railway  is  but  directciry, 
and  confers  no  |niwer  to  alter  or  mmlify  tin 
law.  Its  plain  intention  is  but  to  sec  lli.il 
the  law  is  carried  out,  and  were  the  lily 
Council  or  its  ollicers  to  .sanction  a  prnjcclidii 
of  rails  above  the  level  of  the  street,  the  law 
wcudd  be  paramount,  ami  the  raihoad  cinii 
pany  would,  I  think,  find  that  the  act  nf  lln 
City  Council  adbrdcil  it  no  ju'iitection  agiiiiL-i 
the  claims  of  those  who  siill'ered  in  consec|iiciiiT 
of  this  deviatimi  from  the  obligation.s  liny 
assumed  when  they  accepted  their  cliaitei'. 
Coition  I.I  III.   V.  Tilt  CiliJ  h'uihiKiil  t'n., 

•JN.  S.  l).,'.'li'.i 

27  VId. (ts«l), c. SI    llalirax  Cllj  liiarliT 

City  Ordinance  4  provides  that  lines  or  lun.il 
ties  may  be  enfoiced  in  the  I'olice  Conn  iit  llit 
prosecution  of  any  per.son  whomsoever.  Tlii-'ilnt- 
not  autlioi'i/.e  the  prosecutor  to  bring  a  .Miit  in 
his  own  name,  as  jilaiiititr,  as  the  former  iiiiil  "f 
the  ordinance  does,  where  it  provides  foriiclinii 
in  the  City  Court  for  the  same  subject,  to  liuiit 
the  suit  of  the  City.  Ordinance  •_»!)  directs  lliai 
prosecutions  for  the  jienalties  thereunilcr  .shall 
be  in  the  name  of  the  City,  at  the  I'olice  ('"ini. 
before  the  Stipendiary  Magistrate.  This  ini.^liii 
mean  either  the  I'olice  Court  or  the  City  t'oiirl. 
Ill  tit,  idlni  rirc-t  the  City  Council. 

The  City  of  Hid'ifax  v.  O'Cunnw, 

311.  &(l.,il»' 

(History  of  the  eimctinents  relative  t"  ll" 
streets  of  Halifax,  from  which  the  lialiilily  "' 
the  City  for  injuries  caused  by  obstnictimis- 
itc,  ill  the  streets,  is  deduced)  — 

I'l.r  Thompson,  J.,  delivering  the  jmlginciH 
of  the  (^ourt, — 


1401 


STATUTKS,  NOVA  SCOTIA. 


1402 


( 'liiilitti  ."»  of  the  Ai'lN  III  ISdl,  Mas  Mil  All  fill 
K  |i,iii'iii;;,  kr('|iiM;{  in  i'('|i.'iii',  I'li'.uiiii;^  ami  |iaviii'; 
llir  ilrii'ls  ill  iIk'  'I'liw  II  ami  I'ciiiii.-^ulii  nf  lf,iiifa\, 
ill-.,  I'll'.  (I'Ik:  'I'liwii  ami  I'l'iiiiiNul.i  liiiMi;  llic 
,nva  iif  I  111'  iiicKi'iil  ( 'ily.) 

il  I'liai'ti'il  Ihal  I'crlaiii  |H  I'siiiis  lluifiii  iiaiiu'il 
>liinilil    111'    "  CiiiiiiiiiNsiiimi',    fur   llu!   ii|iiiiiiii^', 
piviii^' ami  kci'iiiii;^  in  rc|ia;i',  llu-  slircls,  lanes 
iiiil  alleys  in  tliu  'I'liwii  ainl  nii  the  I'l'iiinsiila  of 
liiilifaN,   1111(1    f<ir    asccitainiiiH   anil    iciiHivinj,' 
iilistiiu'tiiiiiK    therein.  "       'I'hese   ( 'iiiiiiiii.ssiniier.s 
«(ie  alllliiirizeil  to  leeeive  .siuli  inoiieys  ami  pel- 
fiiiiii    .siiuh    hi^^liway    wink    aw    the    inliiiliilaiits 
wire,  miller  fi)riiier  law.s,  or  liy  that  Aet,  (iliii^'eil 
111  |iay  iir  fiiniish   "fur  the  iiieiiiliii;,'  or  repair 
ill;;  (if  streets,  lanes,  roads  or  liigliways."    They 
Hire  investeil   with   all  the  powers,  within  the 
I'liiiiisiila,  of  the  .Surveyor  of  IliLtiiways,  whose 
ciliiees  and  (lilt ies  were  similar  to  those  of  such 
nllicers  ill  the  eouiitry  distriels  ;  they  had  various 
iillier  powers  ooiiferred  on  them  to  enalile  them 
III  carry  out  their  work,  iiiid  had  authority  to 
ixpi'iid  on  the  sirei'ts  oiiethird  of    the  money 
lU'isiiii,'   from    tlie    duty    colieeted    on    lieeii.siMl 
liiiiises,  etc.,  on  the  reiiiiisula.     Noliee  of  aiiioii 
liiiil  to  he  j^iveii  them  liefore  suit.      I>y  eiiaplei- 
II  uf  1S((!),  all  the  inlialiilants  were  expressly 
iviliiired  to  keep  the  f^uttiifs  and  streets  in  front 
iif  their  prcniiises  free    from    nuisance  of  every 
kind.      Hy   eliapter  .'{  of    I.S'.'ti,   these    two    Acts 
were  consolidated   and    iin])roved.      The   C-'oiii- 
iiiissioiiers  were  continued  in  ollice,  their  juris- 
liji'tidii  was  extended  and  their  funds  inereasi'd. 
I'hi'  provisions  oliligiiii^  the  inlialiilants  to  keep 
llic  streets  free  from  iiui.saiiees  were  re-eiiiicted, 
iml  tlie  f(dlowinj,'  new  enaetiiient  was  made  :  — 
"It   shall      .      .      .      he  lawful  for   the    (*om- 
iiiissiniiers    to    order      .      .     .      the    iiilialiitaiits 
.     .     as  often  as  they    diall  deem  necessary 
luriii;.' the  winter  to  work  on  thepiililic  highways 
witli  their  horses,  oxen  and  sleds,  in  order  that 
till' Iliads  may  be  made  pas.sal lie,    .  jirovided 

iiiiiiiliahitant  sliall  be  reiiuirod  to  furnish  more 
lluiii  line  day's  labor  of  himself  and  cattle  for 
my  line  fall  of  snow,  or  to  work  in  any  case 
wli.'ic  a  fall  or  drift  of  snow  shall  not  exceed 
Uwlve  inches."  C'liaiiler  !)  of  IS.'t'J,  gave  tlie.se 
I'liniiiissioners  borrowing  jiowers.  In  IS4I  the 
lily  was  incorporated  by  chapter  .Vi  of  the  Acts 
'if  tiiat  year,  and  section  07  of  the  Aet  gave  to 
till:  Mayor  and  Aldermen  and  Council  the  ex- 
clusive power  to  regulate  tin;  rejiairs,  etc.,  of  the 
struct s,  and  to  appoint  Coiniiii.ssioner.s  of  Streets 
'"I-  the  City,  and  it  was  provided  that  the  Com- 
'iiissidiicrs  .so  to  be  ajipoiiited  should  have  all  the 
mtliority  conferred  on  the  Comniissioiiers  by  the 
•Vets  before  referred  to.  Authority  was  also 
jiven  to  assess  for  repairs  of  streets.  Coiisolida- 
"011  Acts  followed  in  1848  and  184!),  but  these 


pro\  isions  Were  conliniied.  In  Is.'il  there  w.ih 
.inotlier  ( 'oiisolidatioii  ,\ct,  but  il  did  not  alter 
the  piiivi>-iiiiis  last  I'liiimcriiteil.  Chapter  ,'tlt 
of  Is.'i.'l  provided  that  there  should  annually 
be  chosen  a  Snpd  inicinlcnt  or  .Superintend- 
ents of  Streets,  whose  duly  it  should  be, 
under  the  diiccliiui  and  control  of  the  City 
Cmiinil,  to  siipi'i  intend  the  general  stale  of 
the  streets  within  the  whole  Cily,  and  to 
"  attend  to  the  ,  .  .  repairs  of  I  he  same  .  .  . 
and  to  give  notice  to  the  Mayor  or  City  N!aishal 
of  any  miis.iiice  therein."  .\ll  the  powers  and 
duties  of  the  Comnii.ssiiiiiers  of  .Streets  Were 
Ir.ilisferred  to  the  new  otlicers,  subjci'l  to  the 
aforesaid  direction  and  cuntrol.  Chapter  .'(!•  of 
I.SOI  enacted  that  all  sums  rei|iiireil  for  the 
street  services  should  be  borne  by  and  taken 
from  the  giMieral  revenues  of  the  City  ;  it  placed 
the  streets  and  expenditures  thereon  under  the 
control  of  the  .Street  Coiiiiiiittee,  who  should 
havi'  the  direction  of  the  Superintendent  of 
.Streets  ;  and  it  also  gavi^  to  a  coinmittee  of 
three alderiiieii,  "tolie called  the  Internal  nealth 
Comniittee,"  the  duty  of  attending  to  sweeping, 
cleaning  and  watering  the  streets  of  the  City, 
clearing  away  snow,  and  other  like  duties. 

Clia]iter  SI,  of  I.StU,  was  the  last  Consolida- 
tion .\ct.  Sections  •_'(i4  and  •J(i.")  provide  that 
the  City  Council  or  llieir  coniiiiiltee  shall  "  ru- 
niovc  all  inciimbraiices  on  the  streets  . 
and  cause  to  be  observed  the  laws  touching 
streets  and  bridges,  or  the  work  to  be  performed 
thereon,  and  shall  cause  the  streets  ...  to 
be  cleaned,  repaired,  »S:e.,  as  they  may  deem 
projier."  The  early  eiiactiiiciit.-<,  obliging  the 
inhabitants  to  kee|,  the  streets  before  their 
properties  free  from  nuisances,  were  re-enacted, 
and  tlie  Committee  of  Streets  was  armed  with 
jiower  to  eoinjiel  their  .ib.servanee.  The  autho- 
rity of  Surveyors  of  Iligliways  was  given  to  the 
City  (.'oiiiicil,  and  the  ]ir(ivisions  of  the  Act  of 
Is.").'},  ill  vefereiice  to  the  Superintendent  of 
.Streets,  were  substantially  re-enacted,  as  als.i 
those  of  the  Act  of  IHIil,  in  reference  to  the 
Ciimmittees  of  Streets  and  of  Internal  Health. 
I>y  chapter  ,'{4  of  IS""-',  all  business  connected 
with  "the  making  and  repairing  of  the  streets 
and  street  expenditure  .  .  .  and  all  duties 
connected  with  .  .  .  clearing  away  snow 
and  other  like  duties,"  were  jilaced  under  the 
control  :)f  the  Hoard  of  Coinmissioners  of  City 
Works,  as  established  by  that  Aet,  consisting 
of  si.x  Aldermen  ;  and  it  was  declared  by  sec- 
tion ',i  to  lie  the  duty  of  such  Coiiiiiiissioiiers  to 
do  all  tilings  which  sliotild  be  necessary,  con- 
nected witii  (among  other  things)  the  street  ser- 
vice. The  Conimissioiiers  were  given  power  to 
apiioint  all  necessary  otlicers,  and  were  clothed 
with  all  the  powers  and  authority  of  the  former 


14(K{ 


STATUTKS.  NOVA  SCOTIA. 


K)t 


( '>iliiliill  Ill's  lit  Sli'i'i'l.s  illiil  lit  hili'l'lHil  llriillll. 
liy  Hirtinii  S  nf  iliiiptlT  .'«>,  ill'  IST",  llli'  Cil.V 
Ciilllliil  WrIC  aililNlill  alt!  nlilijinl  In  srl  il^il|l•, 
fill'  till'  si'ivii'r  nf  mIiti'Im,  a  sum  lint  li's.stliaii 
!*'_'■">, (KH(  aiiiiiially,  ami  this  i.i  iiiailr  a  tiiMl  clmi'j^c 
on  tin:  City  ii'vcmir. 

'rinsi!  cniii'lnii'lilM  may  llirn  lie  siiiiimaii/i'il  an 
fnlliiws;  'I'hi'  AetK  nf  ISOj,  ISd'l,  IS'.'tS,  ami 
IS.'fJ,  I'KialiliMlicil  a  linanl  nf  ( 'nminissiniicis, 
wIliiMC    illlly    il    was,    amnll.l,'s|    nllirr-    lllili;,'S,     In 


krrp  the  slii'fts  nf  till'    I'liiinsiila   in  li'|iair,  nilt  1  „,(),(,.  „/'  ij,,    Ctlil," 


'il  vici.dsni),  4-.  si,s.  lOK 

■■  /■'hiiK  nil/.  I  .in  I  iliiHi  liiihhi  iliilhn-.y  inf  nm 
ill)'rllfi  mill  jillllinllllli  III  ill  llli  jilil  nf  rihi 
/irLliill    fur    II    1 1  I'm      lliil    i.ii'l  I  ilillij    lliinhi   ihni.t, 

iiniij  III  miiii.iiil  III  till  lifiiiili  iifuiiii  till, -I, III- 
/)//.y.s((/  ///  iirnirilniir  ii'illi  /Ilin  I'lnijih  r,  nc  ,,( 
iillillnii'  iiilUliiri.:i  il  liil  mil/  jil'i  XI  III  nr  I'lilm-i  hm- 
nf  lliix  I'l'iiriiir'  ;  mill  nil  iiiiimis  nr  yio/Mc//- 
liiiiis  ill  irliii'li  llii  Cilij  III'  iiini  11/ ilsili iHifliiii  III.-. 
Is  III'  ni'r  I'lilii'i  I'liiil.  xlinll   III   I'liiitiiii  iin  il  In  lln 


nf  fnnils  whiili  ucri'  llirriOiy  |)in\  iiliil  fur  llnin. 
Till!  Iinriliii  nf  kri'pin;;  tlic  sticrts  fici'  finni 
nnisaiii'i's  was  fxpri'ssly  iiii|insi'il  iipnii  tlic  iii- 
li.iliitiints,  with  particular  icfiTcriri!  tn  |lu'  niak- 
in;;  nf  lii),'liways  jiassalik'  afti'f  snnw  ilrifts. 
The  All  nf  IH4I  tnalili'il  the  City  Cmincil  nf  the 
City,  tlii'ii  iiu'iirpnialfi],  tn  ajipnint  thu  Cnni- 
inisHinncrs.  Thr  Act  nf  ISo.'J  liansfci'iTil  the 
piiwi'is  ami  ilutii's  nf  thu  CnMliliis,sinm.'l'.s  In  thi' 
City  Cnuni'il  ami  tn  their  Supdi'inti.'iiiU'ntK. 
Till'  Act  nf  IStil  niailc  the  streets  expressly 
eliai\i,'ealile  tn  the  ( 'ily  revenues  generally,  ami 
transferrtMl  all  jinwers  tn  Cnnunitlues  of  Streets 
mill  nf  Iiitei'iiiil  Health,  with  special  referenet! 
iijjtaiii  to  the  clearing'  away  nf  snnw,  Sic,  The 
Act  nf  \Si\l  a;,'ain  impnseil  ex|)licitly  nii  the  City 
the  iluty  of  eloaninj,'  anil  rejiairinj,' the  stri^ets, 
ami  re-eiiaotc'il  the  cIiiuhc  of  IS(li),  with  refer- 
ence In  the  iluty  nf  the  inhaliitant«.  The  Act 
nf  i.S"'-'  transferreil  the  powers  ami  ilulies  of 
the  Cnniinittees  nf  Stria'ts  ami  Inli^riial  Health 
to  the  CnMiniissinnels  nf  Wnrks,  W  lln  shnulil 
"ill)  all  that  ini;j;ht  lie  necesHary  in  I'niinectinn 
with  the  Klreet  sci'viee."  The  Act  nf  IS77  niaili! 
8'J.">,<HH)  a  year  for  streets  a  first  cliai;,'e  on  the 
City  r<!vcinie.s. 

These  refeiences  ap|>car  to  show  that,  hefore 
the  incorpnratinn  nf  Halifax,  tliere  resleil  nn 
the  iiihaliitantu  the  nhli^alinn  to  keep  the 
streets  free  frnni  iniisances,  anil  tn  clear  away 
the  snnw  whieli  niiu'lit  fnrni  an  incnnihrance,  ami 
tofiirni.sh  lalmraml  money  to  the  Connnissioners 
of  Stre(!ts,  who  were  charj;eil  with  the  iluty  of 
seein;^  these  oldigations  perfoimtMl,  ami  nf  mak- 
inj,'  all  uecessaiy  repairs  on  the  streets  ;  they 
appear  to  show  likewisi!,  that  while  the  olilij^a- 
tions  (after  the  incorporation  of  the  City),  were 
kept  virtually  intact,  the  powers  nf  enfnreinj,' 
till!!!!,  the  ilnty  nf  seeiny  them  carrieil  out,  anil 
the  mciUiH  nf  suppleinentiii<^  them  by  lahor  anil 
niniiey  were  yiven  to  the  City  Council  anil  its 
otlicei's,  who  were  conimamleil  to  iln  all  neces- 
sary repairs,  jirevent  nuisances,  clear  away  snow, 
etc.,  etc.,  in  the  highways  of  the  City. 

IVa/kw  V.  The  Cilij  of  I/aliJhx, 

4  11.  &(!.,.S7I, 
Set  HALIFAX,  CITY  OF,  19. 


The  liyelaw  a;,'ainst  .Sumlay  Irailin;,'  piiniijul 
fur  III  inipi'isnnment  nf  three  mnnlhs, 

//'/'/,  iillrii  rh'1.1  the  Cily  Cnumil,  auil  a  cnii 
viclinn  Ihereiimler  ipiasheil  accnrilini^ly. 

77(1  (,'//(/  nf  llall/nx  v.  Cliisn,,  ti  I!.  .V  C,  ,VJI 

27  Viet.  (IMIii,  f.  Kl,ss.  1:{»-II» 

These  sectinus  refer  tn  "  Ciiminal  ami  I'l  ii.il 
I'rosucntions."' 

S.  I.'l.'l  prnviilcs  "that  the  .Mayor,  or  mie  nf 
the  Ali'.erineii,  in  rntalinn,  shall  ilaily  alliinl  ;il 
the  pulilic  ollice  for  that  purpose  appniiilnl. 
anil  constantly  lietween  the  hours  of  ten  n'l  linl> 
in  the  forenoon  anil  three  o'clock  in  tiic  aftir 
noon,  shall  ])erfnrm  every  act  appcrlaiiiiiiu  In 
the  ntliec  nf  .Justice  of  the  Peace,  necessary  |ni 
the  a])|>rehension,  cnniinittal,  cnnvictiiiu,  ami 
punishment  nf  criminal  nll'eiiilers,  ami  fur  cany 
ing  iiitn  cll'ect  the  laws  in  fnrce  ami  tlic  mill 
nances  ami  hye-laws  nf  tiie  City,  as  set  fnrtli  in 
the  fniegning  sectinn."  The  latter  wnnls,  "  ii- 
set  forth  in  the  foiegoing  section,"  are  meaning' 
less,  as  tile  sectinn  I'cferieil  tn  niily  prnvidis  ,i 
limitatinn  within  which  prnsecutimis  in  the  City 
Cniirt,  at  its  criminal  sittings,  shall  he  c(i;;iiiza- 
lile.  This  Cnurt  of  the  Maynr  or  Alileriniii  i- 
afterwarils  referieil  tn  as  the  "  I'niice  Cmiil'  in 
.sections  l.Sit,  14.'{,  l.")0  ami  otheis,  ami  also  in 
section  .')  of  chapter  H7  of  the  Acts  of  ISIuwIiiit 
its  jurisiliction  is  further  iletineil.  l>y  chapter 
S'2  of  the  Acts  of  1S()7,  as  ainemlcil  liy  clMptir 
37  of  the  Acts  of  1.S70,  the  appointment  nf  * 
.Stipemliary  Magistrate  is  j)roviileil  for,  wii" 
hesiiles  having  In  cnnilucl  the  liusiness  nf  llii 
City  Cnurt,  has  to  perfnrm  all  the  iluties  ami 
functions  which  hefore  hail  lieeii  |)erfiiiiiii'il  liy 
the  .Mayor  anil  Alilernieu  in  the  ailministiiitinM 
of  the  Police  Court.  While  the  Act  nf  I«i4 
empowers  the  City  Court  to  make  orilcr.s  ami 
regulation  respecting  the  practice  therein,  aiiii 
to  presciihe  ami  atlopt  forms  of  writs  ami  pr"' 
ceeilings  for  cnniluctiiig  the  civil  ami  crini 
inal  liiisiness  nf  that  Court  (.see.  I.'(l),  iin'l 
lixes  the  fees  payable  in  criminal  cases  in  iImI 
Court  (sec.  141),  no  jn'ovision  whatevei  is  maili 
in  relation  to  the  proceiliire  ami  forms  I"  '"^ 
{olloweil  in  the  Police  Court,  in  any  section  of 


140;-) 


STATHTKS,  NOVA  SCJOTIA. 


140() 


till       All     III      itH    IIIIU'IhIiIICIIIm,     I'\CC||I     illllll'    CllHC 

lit   |ii'iisr(MitiiiiiM  fur  |u'ii,'iliii's  lor   violating  tlic 
Ihiiisc   law   (hccm.   'JIN    anil    L'MI)  ;  ami   a  clause 
II  i|iiii  ili|;   lliat   a  liiiok   sliall   lie    Ucpt    in   wliicli 
riiiiiiiial  cliai'^t's  iiiiulc  al  (lie  iitlict'  ai'f  tii  lie  en 
in  III,  ami  (•citaiii  ;,'fin'ial  riiiU'lincntM  in  iflrr 
ili'i'  III  I  lie   isHiif    lit'    waiiiiiilH    ami    priircMH   nt 
-iiiiiiiiiiiin  IIP  aiicsl,  ami   |ii(i\  iilin^^  liclurc  wlinin 
,illjila\  its  arc  111  lie  MUiHii,  (seen,  I  I.'!  uml  III.) 
All  aeliiiii  was  liiiuiglit  ai,'aiiisl    I  lie  ilcfcmlaiil 


'2i  Vict.  (Isni),  ('.  SI,  HM.  mt  and  2(11 

/'<  )■  Sir  Will,  ^■llllll;,',  (',  .1,  'I'licsc  .Mciliiiii.s  are 
eerlaiiily  of  a  iiiiihI  amiliialiilis  iliaraclei .  Three 
eiiiii|ietciil  |icrsiiii.x,  rml  licinj^  iiitcrcsieil  in  ihe 
mail  1(1  lie  laid  mil  m  iiii|ini\cil,  are  In  lie 
il|ilniillteil  liy  Ihe  Cily  ( 'nlllicil,  wliii  ale  In 
a|i|iriii.Me  Ihe  iliiiiia^'CM  In  lie  jiaiil  In  limse  w  hn.se 
laiiils  may  lie  taken  ii|i,  nr  ulm.se  liiiililiii|;,s  may 
lie  reninveil  nr  ile.sl  rnyeil  ill  w  linle  nr  ill  pari  Inl 
Ihe  iiiiprnveineiil   nf  any  street,  si|iiare,  lane  nr 


III    the  I'lillee   (  niirt    at    the  suit    nt    I  le   (itv  nf     ,.,,|  i:     .  ■•  ,■         „,,       , 

,,   ,.,  ,.  II         ,       .    ,     .  .  '.       ,  l"il'l"'  pi'f'NiW.        liy   seel  inn  •_'(»!,  the  appraiser.^ 

Ilihtax,    tnr    an    alle^,'ei|    vinlatinii    nt    a    (  itv    ,„.i i-       ■    i   .      i  \    ,    „ 

,.  ....  •'     IMli'i  are   mil    even  ilireeleil    In   he  .swniii)  shall 

"iiiinaliee   in  keepill;,'  a  iiiarilie  ami    llllik  stnre    ,„.,:?,,  ,i„.   ,..,,.,;   ^ ,  ,   ,  ,, 

,       ,    ,.  ...  ,      ,.  .  iintit^  the  parlies  interested,  ami  hear  them   il 

wilhiiiit    lieen.st!    theretni',    ami    alter    trial    I  le  I  ,., :,.,  i.    ,,.  i.i  .,    ■  ,     , 

.  '  ;  H'Mlllleil  ;  ami  the  aiiraiseliielit  liilli''  iiiaile    liy 

■  lileiitlant   waH  cdiiviutL'd  nt  keeniiiL'  a  raL'  aiiil  I  ii.    ,i..        .  .  .•    , 

I       1^  h    "•'     tile  three  iippraisers,  nr  any  I  wn  nt  Ihelil,  llnl  lee 

sliall  he  yiveii  tn  eai'li  per.snii  \\  Im.se  land  is 
taken,  nr  w  linse  Iniildin^'s  are  In  he  reiimved  in 
whnle  nr  ill  part,  nr  In  his  agent,  ten  days  al 
least  lii'fnre  the  nu'elingnf  Cninieil  at  uliieli  il 
is  In  he  eniilirined,  The  Cnlineil  shall  ;;ive  any 
party  nlijeetiiig  tnlhe  appiMisi'inent  an  npimi- 
liinily  nf  heinj,'  lieanl  and  prnvini,'  hisnlijeetiniis 
liy  lestininiiy.  If  Ihe  expenses  and  damages 
appear  tn  the  Cniineil  exeessi\c,  when  eniiipared 
with  the  utility  nf  the  wnrk,  they  may  suspend 
111  aliamlnii  the  iimlerlaUiiig  at  any  iierind,  enni- 
peiisaling  fill  any  daiiiiige  aeliially  iloiu). 

//(  (V  h'x'i  ii^liiii  nf  L<jil:iiinii  S/n  1 1, 

•2X.  s.  I).,  ;t:. 

!     21  Vid.  (IMM),  f.  HI,  ss.  mt,  2«.»,  2IS  and 
27)) 

Under  tiiesi' seetiniis  the  City  nf  Halifax  and 
its  nllieers  ,ire  hniiml  tn  keep  the  streets  under 
their  ihaige  free  nf  iueiinihiaiices  and  in  gond 
repair. 

//lid,  thai  it  was  their  duly,  when  the  street 
i.iilway  negli'eled  their  duty,  wliiili  wasei|iially 
ineumheiit  upnii  tliinii,  and  withdrew  finni  the 
tield,  tn  have  the  rails  envered  up  iiiiiiiedialely 
and  tn  have  lirniighl  the  streets  iiitii  a  sale  enii- 
dilinli. 
Ailaiiix  y.   Th,   Ci/y  II/  I/n/1/ii.r,  I   K.  iVd.,.'!!!. 

2J  Vict.  (1S((t),  c.  SI.  s.  2;() 

"  Xo  ii.r/idii  Khali  III  nimmi  iiriif  ni/niiix/  I  In 
Cilji  nf  /falifax  01-  l/iiir  roinmilli,-  n/'  .•i/m Is,  m- 
/iirsoiis  ncliiiii  Illllll  r  Hit  in,  iiiilil  liniifi/  iliiiis' 
Holicc  ill  irriliin/  iliall  III'  ijiriii  lo  t/um,  nor  itj'li  i- 
six  mmillis  nixl  aj'li  i-  /fii  arf  rommiUul  for  irhiih 
till'  nvlinn  s/ia/l  In  lirniii/ht,  ami  iriri/  sw/i  urtloH 
sliall  III  /a  1,1  milt  Irinl  irilliin  Ihr  Cili/of  //a/ifnx." 

The  iiiiliei!  may  he  given  liy  an  attnrney  nr 
agent  duly  autliori/ed.  The  iintiee  was  that 
aetiiin  wnnhl  he  liinnglit  unle..^  amends  should 
hi'  jiaid, 

//ilil,  sullioieiit. 
ll''///</-  v.  T/ii  Cihj  <if  Halifax,  \  K.  &  (;.,  ;{7|. 


jiiiik  simp  w  ilhoiit  lieeiisi 

/'</•  llighy,  ,1.  That  ihe  ri  imiiial  side  nf  ijie 
lily  ('oiirt  had  jiirisdiei  ion  over  I  he  siilijeel 
iiiiiller  and  eoiild  atlnrd  eniipleie  redress,  and 
liiMt  I  he  prn.seeutinii  Was  wrniigly  instil  iileil  in 
ilic  I'nliee  Court  at  the  suit  of  the  City. 

'/'hi  i'ilij  <if  //al'l'n.i-  V.  O'Ciiiiiiiii; 

:i  U.  \(i.,  1!MI. 

-J!  Vict,  (istti),  c.  si,K.  lai 

■•  \ii    rnurirliiili     liifni'i     lln      Miii/iii'     nr     iiii 

Mill  riiiiiii.  iir  III  fun   Un    t'iiij  ('miri.  slinll  In 

'iKiisliiil  fur  li'illll  nf  fiiriil.  mill  lln  irnrrniil  nf 
iiiiiiiiiiliiiiiil  shall  III-  liilil  mill  III)  riiismi  nf 
mill  ilifirls  Ihiniii.  sn  ns  il  In  tlnriiii  illlnlvil 
lliiit  Ihr  /III  rill  has  liiiii  rniirirli  il  nf  snnir  nfi  nn 

iiiiiiii il  ihiri ill." 

Ililil,  that  wlu'ie  the  defendant  was  eoiiviited 
it  a  ililleieiil  oU'eiiee   Irniii  thai    eliarged  in    the 

-mill s,  this  was  a  mailer  nf  suhslame  and  not 

"t  liiriii,  and  did  not  fall  within  this  .seel inn. 
Till  iViltj  of  //a/ifax  v.  O'Cmiiiiir, 

:{  II.  .t  C,  l!IO. 

27  Vict.  (1S«4),  c.  Sl,s.  \'A\) 

■ill    11111/    riisi     irhrrr   lh<     I'ihl    Cniirl    nr   Nil 

Miiijnr  nr  aiiij  Alilirmiti  in  Ihi  ilnil;/  /'olin 
''"iiii,  Ihiiik  fl.  Iliiij  miiij  iiniinsi  Ihi  nlli  riinlii-i' 
"I  II  jiiir  nr  iiiiiirisninninl." 

>  "  27  Vict.  (1S«I),  c.  SI,  s.  227. 

-'7  Vict.  (1S«I),  c.  SI,  s.  227  (Kccnlns  dis- 
"iilerly  house,  etc.)  - 

''"iiviulion  for  keeping  disnrdirly  house  in 
wliiili  defendaiit  was  adjudged  to  pay  the  sum 
"'•'!'4lt,  and  "if  the  said  sum  lie  not  forthwith 
I'liil.  to  he  imprisoiied  in  the  City  I'lison  for  the 
liiii'i'of  IHI  days." 

//'/'/,  good,  the  alternative!  ]iiinisliment  heing 
'"lliorized  liy  .see.  i;t9  of  the  Ac^t. 

'>'h'  Ci'i/of  //alifar  v.  /Iroini,  ii  R.  vt  C.,  lo;t. 


1407 


STATUTES.  NOVA  SCOTIA. 


1K)S 


Alliriiu'd  (III  a|i|H'iil  tn  llu' Sii|ir)'iiii'  ('oiiit  of 
('iilliiilii.  <'iiH.  lH;<i«l,  OH. 

Ilihl,  lllill   lllf  WiUll  of  iiipl  ill'    llllili'l    lliis  ,Sc(' 
tinii  vvaH  fiiliil. 

lliiliiii^Kii   \.   'I'll'   Citji  III'  llnlifiix, 

•-'  K.  \'  (!,,  ;i7.-.. 

'21  VIH.  ilHOl),  V.  SI,  HH.  ;»ii»,  ;j:u,  :i:i», 
:<l»,:tl7,  :(.*><»,  :mmi  ami  :t«(l 

SiM'iiiiii  :i:i()iif  ill)'  IIiiIII'mx  lni'iir|iiiriiliiin   Ait 
iliitilM  lliiil  "Ilii'Cily  ('r.iiiu'il  mIiiiII  Imvc  ixiwcr 
tiiiisscsH  III)  till'  iiilialiiliuitK  mill  on  tlir  |ii'ii|)i'riy 
within   till' City,  iiiiniially,  Hiirli  .huiii   uf  inniiiy 
ii.s  may  he  iirri'HHiiiy."  .     .     Scrtioii 

.'I.'IT  |iriPviil('M  fill'  HWcaiiiin  City  Ahsi'ssiii'i*  "to 
iiiakf  a  fair  ami  impaflial  asscMHiiiriit  nf  the 
City."  Si'iliiiii  .'l.'ttl,  uitli  the  amcmlmciit,  ilt- 
rcrtM  "  a.ssi'MHim'iit  ii|iiiii  the  ri'M|)t'it  ivc  waiils 
fur  all  HtllllH  of  iiioiii'y  iif,'ally  aiil  liori/cil,"  to  lir 
(■aifiril  on  Himuitaiii'ously.  I(  is  niartt'il  liy 
HiTtioii  .'MO  that  "  tlic  asHCM.sim'iit  MJiall  lii'  latcil 
on  tlm  oci'iipaiitH  of  real  estate,  Iwinj,'  yearly 
ti'iiaiitH,  ami  in  all  other  eascH  on  liie  owners 
of  itropei'ty,  liy  an  eipial  jioiiml-rivtf  uiioii 
liie  value  of  the  real  ami  personal  estate 
within  till!  City,  whether  hucIi  real  ami  jier- 
fonal  estate  nliall  lie  poHHCHHed,  oocupiiMl  or 
owneil  by  Imliviiluals,  or  liy  any  joint  stock 
eonipany  or  eorporatioii,  ami  whether  owiieil  liy 
parties  resident  or  aliseiit,  acuording  to  the  liest 
kniiwleilj^e  ami  diseretion  of  the  City  and  Ward 
Assessors."     . 

Section  347  is  introduced  for  the  purpose  of 
interpreting  and  delininy  the  words,  "  personal 
estate,"  aiid  enacts  that  nnih'r  the  term  "  per- 
sonal estate"  shall  lie  included  all  househohl  fur- 
niture, mollies,  ^oods,  chattels,  wares  and  iiier- 
ehandise  kejit  in  private  or  pulilic  premises,  or 
in  the  (iuecni's  or  other  warehouses  ;  all  ships 
and  vessids,  or  shares  in  ships  and  vessels, 
owned  l>y  persons  residing,  or  having  otlices,  or 
doing  businiss  within  the  (*ity,  whether  such 
ships  or  ves.sels  lie  at  homo  or  abroad  at  the 
time  of  assessnu^iit."  .Sections  .S.'i!)  and  'MM)  jirii- 
vide  for  ruled  blanks  to  form  valuation  books 
for  the  assessors  of  the  respective  wards,  con- 
taining places  respectively  for  the  number  of 
the  ward,  names  of  parties  to  be  as.sessed,  value 
of  real  estate,  value  of  personal  estate,  and  total 
amount  on  which  assessment  is  to  be  levied.  By 
Hectioii  ,'l(il  it  is  provided  that  when  the  whole 
ainiuiiit  of  property  on  which  any  person  is  t<i 
be  assessed  in  any  ward  is  determined,  he  shall 
be  served  with  a  notice  upon  a  blank  similar  to 
that  provided  in  the  two  previous  sections.  In 
the  form  of  the  prescribed  notice  tht!  City 
Assessor  is  recjuired  to  state  the  valuation  of 
real   and  i)ersonal  estate   of  the   party   to   lie 


assesm-d,  "  within    Ward    No. ,  ul  lliiCiiy 

of  llalifav,iin  wliiili  asscssmiiil  for  tlie  iiiimii 
year  i.s  to  be  levied,"  and  lie  is  also  lo  Hlalr  Ijni 
any  objuelion  to  lie  iiiade  is  leijiiiieil  in  writing 
aiteordiliL;  to  a  finiii  to  be  verilied  by  allidavit. 
This  statement   is  headed   for  *'  Ward  No.     -    " 

and  rei|uires  from  (he  peiHon  assiwHi'd  a  hihm  in 
be  tilled  ill  a  blank  opposite  the  following;  ilnii  : 
"  Shijis  or  vessels,  or  sli.ilesaiid  interest  ihriiin, 
whether  at  home  or  abroad  ;"  and  it  iseiinhfl 
by  this  elaii.se  that  the  n'lnrii  of  ships,  or  \(^ 
He|,4,  or  shares,  shall  be  made  by  (lie  party  in  ilir 
ward  ill  which  such  person  shall  reside.  Tin- 
fill  III  ol  airnlii.vit  direi'ls  the  depiiiieiit  tovinl^ 
the  value  lo  be  therein  spieilieil  of  tlie  pin 
perty  iiielildilig  "  personal  estate"  for  wliirli 
he    was     liable    to     be     liived     "within    Wiml 

No. ." 

//(///,  l!iat  vessi'ls  owned  by  a  resiileiil,  Imi 
never  registered  at  Halifax,  and  always  s:iiliiiL' 
abriiad,  did  not  come  within  the  meaniiiu' nf  llir 
words,  "whether  such  ships  or  vessels  lie  ,il 
home  or  abroad  at  the  time  of  assessiiieiil,"  ;iiiil 
therefore  were  not   liable  to   be   assesseil  I'm  rilj 

taxes. 
Tin  i'iiii  of  lliilifiix  \.  h'liiin/,  1  K.  i*t  <;.,  .'ill; 

;ts.  c.  K.,  lit;. 
27  VIcl.  (1S.1I),  <••  SI,  s.  ;mi- 

••  77/e  iirrmiiiiil  jirninrtii  uf  nil  /n  rsnnf 
11SS1.1S11I  iiiiilir  lliis  All  fir  I'i/il  I'lili'S,  slmll  /.i 
Hiililf  fur  lllf  full  iiiiiiiinil  uf  rnlis  iliu .  iml- 
irillisliniih'iiil  mill  iis.sliiinniiiln  ur  ulln  r  nuiri'ij- 
iniri  iiiihir  hij  Ihi'  iiii-iiir  uf  siirli  iiru/ii  rlij.  uf 
uf  iniij  jiiilijiiiiiil  I'liliriil  iiijiiiiisl  llu  iiii'mr 
Ihiriiif.  ur  mill  i.ririlliiDi  issilnl  In  liiiid  llu 
liriijii  rlij." 

'The  City  of  Halifax  has  no  jjicfereiilial  iliiiin 
for  taxes,  under  this  sci'tioii,  against  the  ;is 
signee,  under  tlu!  Insolvent  Act  of  ISTI. 

McDonald,  C.  .1.,  ilixninliiii/. 

Ill  rr  Marlir,  .'HI.  &  C,  li'-'. 

U  Viet,  (isni),  c.  SI,  ss.  MW  and  :ttO 

S.  .'Itiil  provides  for  warrant  of  distress  tn  I"' 
i.sHued  without  delay,  for  City  ratios,  and  gives 
form  of  warrant. 

S.  .'171).  "  If  (hi-  mnupji  ns.irssi'il  hi'  iml  ''"'• 
lirti'il  mill  imiil  nvcr  tn  the  (Jitij  TrniKiini' 
viiili-r  till'  imirrmit,  uf  ilislrrss.  hr  ulinll  n-illn'iil 
ilrlini  Kill-  fur  llii'  mituiuit,  inrlitniri'  uf  llu'  '"' 
pi-r  riiil..  ur  fur  su  witch ns  is  not  rullirtitl.  iif 
ill  I'lini'  uf  ilrht,  the  iivl.iuii  tii  lie  hi  tlir  muin 
uf  Ihr  <.'it!i;  III!'  Tri'iisiirir's  rvrlifiriUi-  hi  "■'''■ 
itiij  ahull  In-  iinxinnptivc  vvidvni'f  of  thr  mh 
hihiij  dm  mid  inijinid,  mid  slmll  hf  siiffn'i'i'' 
til  itilitir  llir  (Will  III  II  jlldipnilll  irilhuill  fiirlli'i' 
prouf,  vnh'SS  n  ijuud  mid  jiixt  difnirr  '""  '" 
mitdr  Ihvrvtu." 


i4o;> 


STATUTES,  NOVA  SCOTIA. 


1410 


•i7  VIrt.  (iMOli,  c.  SI,  N.SDI- 


TliM  io(|iiiHiir.si.f  NiM'iion  ,')7t),  (if  till'  City  Aul, 
cl,.t|.t..r«l    A.t.  ISdt.un.  no,  Hutlicic.ntly  o..,,.- :      ''Wh.  r,  n  ,,nn,/n,o,' ror,'.  inn.  .hrtlH..  i,.,,.o.nl 

,  >-.    w.tl.  I.y  a  ,...„il„.,u..  H,a,in«  ,n..r..|y  ,lmt    ,,,  ,;,;,  ,.,,,,  „„,  „„,,„,„•,,;/„,  „,„,,,  ,,      if,„i 

.!,.•  .I.f..nl,u.t  luH  1,....,,  u.s..s..,l  in  i,„..„lar     ,;,,  ,h,  r,ro,:„j  fhn',n,\  >h.  sam.  ma„  l„    r.ror. 

.innuMt.  of  uln.h  1,..  Um  Inul  Motifu,  an.l  that    ,,„,  ,•„  ,a.  ,mm.  o/' .A,:  ('If,,  of  H„n,}u;  U,hr. 
the  iiMiDUiil  1.1  (liif  unci  uii|mi(l.     'I'lif  ciTtitiiatf    ,i,,    ia„ »«.•«,.,...;  r.  .    i/;     '  ,'  ,i       '/• 

inii->l  f{(i  fiiitliiT,  mill  Slow  thill  the  uiiioiinl  has      ,;•  t     i  .■     ,  ,       .        ,   . 

,,  ,,         ,       ,       .,  uii.  um  lias    f,jlir,  ;  nil'/ ir/i'iu  no />(irfiiii/,tr  mnih' nlnini/i/iii'i 

iiiii  Ip.'i'n  ooIUmHi'iI  anil  piiid  over  iiiiiliT  tit.' war- ,„,,,,,„„„/,.,  ,i,„//  I  i    i    ,l     '     "  '  ,' 

.    f  ,.  .  .  ,    ,  ,      ,  "".V  l» »("'!/  xhall  III   jirisifi'ini,  Ihr.  innn',  n-hm 

milt  ot  illHtlL'NN  pioviileil  for  liy  Huflloil  ;<tlll.  ,.,,•,;,■,,/    .h..ll  l     .   .■  I  <     ,i     n-.      'I' 

'  '  n II  ii'iii,  s/id/f  III  jiiiii/  on  r  to /hi  CV;/  / naiiin r, 

Tin  ('III/  oJ'/Mijhx  V.  /ioi/T/-,  1  N.  N.  I).,  0».    luimrili  //n    I'limh  of  lh>  C'lhj." 

III  a  iHiial  niattor  it  cuniiot  he  I'onuludod  that 


•21  VUt.  (ls«4),  €.  SI,  Hs.  4.10,  l.il  and 

l.»'2 

IVovisions  iiiiposing  ucrtain  tiiu's  mul  punal- 
tilt  on  •'I'l'orji  prrsmi  svinlinii  Jhnu  ur  nffiyiinj 


"^ ^  •  » .7  t'l  I  t^'iii  niiifiiitif  ji  iiin  lit   i\iiirtiiif  '   — *..v.  ..,»,,,*.   ..t    I. 

:„t'  mill-  iKitliin  l/ii'  Cihi  lit'  Ifiill/ii.f.  muj  Imrvil    ""  ""'•I'iiiiul'c  of  tlie  ('it> 


thowi.nls  "Mayor  or  prcsiilinj,' AlcliMniar.,"  in 
this  Hoctioii,  ix  inti'iicU'il  to  refur  to  tlii'  I'oliuo 
Court.  It  cannot,  thi'ivfoiv,  he  hi-ld  to  mitiio. 
ri/.o  tiu!  hringiii),',  in  ihu  I'olicc  Court,  of  an 
action  in  the  naniu  of  tiio  City  for  violation  of 


uf  /mil'  hiiriU'l   III'  jlniir  i,r    tuml   ihjiriinl   in 
>'ii[ilit.  iir  ii-itliiiiit  its  liiiviini  liiin  liVKwh-il." 

Tlicsi'  jirovinioiis  were  .siili.staMtiuliy  iiicorpo- 
Littil  in  :h-d  I{.  .S.,  c.  ,S,'),  liy  which  pi'o\i.-iions 
wiiv  made  for  the  inspection  and  weighing  of 
'mi  and  meal,  in  the  rrovince  generally 


Thi  City  of  Halijax  v.  O'Connor, 

3  R.  &«!,,  nxt. 

ai  Vict.  (is«4),  c.  SI,  s.  «.M- 

"  Till  City  Council  tnni/  illri  ri  huiUliini^ihi  mi  il 

V.,..,  ...  w.^  ■  ...wiiwL- gum.iiviij.  .nnimiii'is  nmliv  /his  Ac',    ii/ion  inn  s/ii/n/ioii  of 

ff'/'l,  that  the  sections  of  the  City  Charter  i  ""'/'"''''"'"' '"'""'"'''O"  fi'""  oirni  is  or  Imilili  i->, 
uvic  covered  and  repealed  liy  Dominion  Act,  '"./"'"''  aJinfi/i  o/ /hi-  Sii/inmi'  Coiir/,"  i /i\,  i  fi: 
ICt,  c.  4!),  s.  •_'(»:  "All  Acts  or  (larts  of  Acts,  i  I'lU'ties  proceeded  against  under  this  section 
'I  "f  any  charter  or  law  now  in  force  in  tho  p''*-'  entitled  to  an  information,  if  they  rei|uire 
'"million  of  Canada  or  in  any  Province  thereof,  •'■  '^">l  it  i>*  U'>t  necessary  to  resort  in  rlie  first 
iinvidiiig  for  the  inspection  or  the  appointniuiil  ^  iuslmiee  to  the  I'clice  Court,  under  s.  ti.'it  of  the 
■!  inspectors  of  any  of  the  articles  tlie  inspoc-  '^'i'"'^'  ''^'-'^• 
I'll!  of  which  is  hereliy  provided  for."     Tiie  Act 


In 


piiAiiJed  for  the  weigiiiiig  mid  liranding  of  tlour 
.iinl  meal. 

Th>  Ciijiof  Halifiix  V.  Ciinnini/hnm  1/  al., 

7  U.  ^;(i.,  14. 


•-•;  Vkt.  (1804),  c.  «1,  s.  54»- 

■  Ml  jinrs  and  /imnltii's  innniintinij  ri'sper- 
'"■''.'/  til  liijhlij  il.iilhirs.  or  lulon-  thai  sum,  lnj 
'hi.i  Art,  iir  liij  amj  lnji'-htw  or  dViUnnncc  nf  (he 


Gil  11  of  Hal i fur.  aivi  Si  i  ion  i-t  nl., 


St  I 


HALIFA.Y,  CITY  OF, 


28  Vkt.  (18051,  c.  1,  8.  0  - 

"  Thi  nuliri'  jinsirilii-il  in  thr  arlu'ilnlv  to  thin 
Act  skull  III  inihirsi'd  nu  nil  .sitmmonses  and 
cd/iin.i  issnril  III)  Jnnticin  of  thr  Piiirc  in  civil 
rums,  rrt/nirini/  thr  ilr/inil.anl  In  file  vHh  the 
Muijistrdtr  issninij  nnij  such  summons  his  srt-nff 


''i':i  (.'onncil  mmh'  under  the  iinthnritij  nf  this   <"  the  jdnintiff's  chiim,  u.  cop)/  of  trhich  notice 

k'<.i..i  .1  1.  ..  .1.111  1  .<  -.  .  .. 


>'"("/»',  or  iini/  other  Act  of  the  Produce,  fur 
On-  nriirrri/  vhrrenf  no  provision  is  nthrrv.'isc 
<'*'"''■■  shifll  Iir  sued  for  and,  recovered  in  the 

>'"iiii:  I 


[fthe  Citij  of  IlnUfii:i\  hefurc  the  Manor's  ]  ivhsolutcly  void. 


'■•'iirt,  in  the  some  manner  as  ainj  drhts  can  ha 
"'■"verrd  in  the  said  Court ;  atid  all  such  Jiues 
"'"' pi'ialties,  P'hcn  recovered,  shidl  liehma  to 
"■•■  C'it'i." 
Ildd,  that  this  section  did  not  justify  the 
'•'iiging  of  an  action  in  tiie  name  of  the  City 
'•>t  violation  of  a  City  ordinance  in  keeping  a 
fwiiie  and  junk  store  without  license. 


shall  he  served  on  the  defendant  fith  a  cop;/  of 
such  summons." 

Hi  Id,  that  a  summons  not  so  indor.sed  was 
McDonald  v.  Mills,  •_>  Old.,  Hi."). 


^Vant  of  such  notice  is  waived  by  defendant 
going  into  his  evidence  at  the  trial. 

Billoni  V.  Murphy,  '1  Old.,  16G. 


28  Vict.  (180,1),  C.  1,  s.  13- 

--  — —  "I'rociss   nndir"   chapter   70  of  .3rd   R.  8., 

Iliis  section  cannot  he  intended  to  refer  to    c.  7."),   "shall  he  diroc/cd  to  the   Sheriff  or  his 

■""lis  111  the  Police  Court.  :  Deputy,  or  u-hrre  the  Sheriff  is  interested,  to  the 

The  City  of  Halifax  v.  O'Connor,  \  Coroner."    Though  il  may  he  true  tiiat,  in  some 

3  R.  &  G.,  190.  i  instances,  a  writ  directed  to  any  other  person 

47 


un 


STATl'TES,  NOVA  SCOTIA. 


141; 


tlmi.   \Uv   ShiTltr  would    It   v.,1.1,   uh  « .•   xvnuM        y/././.  that   tl.i>  A.t   -I    Istillwan  nol  np.,,|,,| 

pn.lpal.ly   lu'l'l  wluiv    i    wain.iit    to   K'V.V    tlu'  l-y  tliu  |ml.linUiniM.t  tl..'  »tl.  K.  S.,  un.l  .v,  ,mI 

iiin..iint  l.y  .liHti.-H  an.l  milo  of  tlu'  .U'f.ii.laufH  it  wi^if,  lli.^  .Iuuhch  of  tl.«  (.'ity  Cliaitcr  wl.i.  1,  it 

i.li.TtH.  aii.l  a  poitioi,  l,y  nali'  of  I.ih  v.«m.|.  was  iui-cuUmI  would  not  l.y  hulIi  i..|.fal  Ihj  revivt.l, 


Uiiiii'il  uihUt  ilia|i.  7.">  of  the  Ui'viMfil  StatutcM, 
fhiM  ilocH  not  a|ij)Iy  to  ii  Hunmioiis  followiMl  l>y 
an  uiiiicarancu. 

.!/('/•  »No/(  V.  MdHoii,  '■'  Olil  ,  .'Kill ; 
I  N.  s.  1).,  1. 

'2H  Vict.  iiHU),  f.  10,  ».  7- 


liiijlii  V.  .)/(»/i'i ''  "'.,  7  H.  v*ic  •!.,  "Lil. 

•2H  Vicl.  (1M«I,  C.  HI,  «.  «- 

"A//  /II  iiii/li'  i/<i>'  llti  lii-'Hih  iij  Ihi  lii'Di-i- linri, 

ilti'iirnd  III/  iilliii',!  liiinnr-i  irilliiml  lin  iiv  ,niiil  nil 

\  prOMifiilioiit  (iiiftiiiil  iiiiiti'i  biirlini  /ill  11-11 './ill' 

n'n/dtidii  tif/lti  Idir.i,  mill,  nil  III  null  ill  j'lif  lii'ii'h 

'■  \i,  ,..  rxnn  ,i.-,„r.i,i,is  n-hn  xlmll  '"■  niliilid    "/  '"'.'/  /""'  "/  "'•    ''"'""'  '"""'  '""  %'•'■'">.  "'' 
to  inii,  iii'liiia  1,1' unit  ,nlh  ,:s,iiil  ^.  n-hH,  Ihr   onlimiios  o/lhi  VHy  o/  IMijhu:  u,   nfnnin 

un-ii.hnfliniiMliuii  irilliiii  irliirhthri kIoiU    IIh  n  Io,  or  fo,-  In-iwhuj   an,,  h,. -laii'.  oroiH,,. 

Ulirnliilla  h  lii-nl  liil  xirti"ll  nin-'".'-  '■''"I't"-  't"'''- of  llu  CV///  ,v  ,/'</"'",;/ /.-■./M.rUo,,.. ../,./. 
„.,.  Inniilriil'.niil  m-l'mr  of  lln'  lti>-m<l  >'-h'nlhi  of,  i.n  lur^  hin,  rnnnniNid  ,n>hi,.'h. 
.SMt,aisithiMxirii's].Vli.in  hi-  iiiUnidliiiuni^Cilij  of  Halifax,  1,1  hruylil,  in  Hi.  nanw  nj  >h. 
tiiiu  ,nVii,,,i-lii<li  to  riiiiiiiiiiiri-  iind  >iin<  Hitrh    rilt/,atth,',i.^^^^^^^ 

arti.i, .nil  hi;ii,id  tlu'  in  dud  m  jM  fn-  the  \      This  Heot.on  must  l.o  taken  to  refff  to  .uits 

«,<»...,  /-'/  r,n.,ia  iiiiUj  If  mi-h  pi;-si.„,  m-  .-.,.«  ,  before  the  City  Court.     It  .annol  1-  tak,.„  to 
„„e  iiv  min'v  nf.nrli  ,iirsi.,i.,  hd,,,,  at  tin  Ihnr    'vuthori/.u  the  l.rn.g.ng  o   an  action  ...  the  I  Mi.e 
I  "•■       ,■  ,   .,.!t  ,i,;-,-,i,,l  mil  iif  Court,  in  the  iiaine  of  the  (  ify,  for  violatiun  i,t 

of  mirlt  ridinr  iij  luiinii  m'  ■■""'   nci'i'in  i<-  mn  ui    voviii,." 

ihc  I'foniia;  in-  in  tin  ni.,s  in  n-liidi  I'll  dHii>'    '"■  <■'''>■  '"■'l''""'^'^'- 


of  the  ofimmid  Hcrtimi   iniiirimiiniii'iit  is  imi"  n 

iUsaliilit>l,  liij  fiiimti   of  mirli  jiirsmi.  ur  niiiini 

,,nv  III' inori' if  xni'li  inrsons  Iniinj   iiiiiii'imiiiifd 

III   Ihf   tiinr   if  siirh    raiixf   if  lu-linn   nr  miil 

ai'cnii  d." 

Seetio.i  7  of  the  Mereantile  F^aw  A.nendincut 

Act  of  1S65  {'28  Viet.  c.  10),  has  a  retrospuetive 

ojieration  as  regards  rights  of  aelioii  ;  hut  (haus 

not   apply    to    autio.is    eoiniueneed    liefore  its 

passage. 

ConlxoH  V.  Saiii/'tlir  it  ft/.,  I  Old.,  0(0. 


7'hi  t'ilij  of  Halifax  v.  O'Couiinr, 


29  Vict.  (1800),  C.  1 


Si  I-  3rd  K.  8.,  c.  lO. 


!     29  Vict.  (18WJ),  C.  11- 

si,  ;{ni  K.  S.,c.  121. 

I 

'  29  Vict.  (1800),  C.  11,  s.  10  - 
1  I'rovides,  in  eoinieetion  with  the  Otli  sectimi, 
I  "but,  nevertheless,  in  all  aclio.is  at  law  in  th..' 
'  Supreme  Court,  on  the  trial  or  argument  "I 
which  mattei's  of  eiiuitahle  jurisdiction  arise 
that  Court  has  power  to  investigate  and  deter 
ini.ie  both  the  matters  of  law  and  enuity,  or 
either,  as  may   be   ncee8sa.-y  for  the  conipkte 


.Mliiitiilile 
j  defences  shall  he  set  up  in  virtue  of  the  sections 
of  this  chapter,  under  the  head  eciuilalile 
/«  .eiVneoeU./.,  2  Old.,  178.  i  fences,    from   section    4:i    to  section    50,  Uh 


28  Vict.  (1803),  C.  28,  8.  8- 

•■  .III  fntui'i:  ii.isi'ss,iii:iil!i,  under  the  chajitur 
hirihij  umitidid,  fir  the  support  of  svhools,  d'c, 
shall  he  madi:,  itf.,  under  the  provision  of  the 

third  scctiiiu  if  this  Act,"  i&c.  \  udiudicatio..  and  decision  of  the  whole  mattir 

Hi  III,  that  ^^  all  future  a.^.ie>iment.i"  referred  ,  ^^^^^^  ^^^^^^  ^^jj  ^^^^.^^^^^  ^^^  j^^^.  ^^  ^^.j,;^,,  „j„i,,,,,, 
to  assessments  made  after  the  assessments  c(m-  ' 
teniplated  in  the  7th  section  should  have  been 
completed. 

inclusive,  are,  and  shall  continue  to  he  tried 

considered   and  adjudicated   by    the    .Siiiireme 

28  Vict.  (1806),  C.  87,  8.  U—  Court  and  its  .Judges,  in  the  same  iiianiiev  as 

(Form  of  tavern  and  shop  licenses  in  the  City    regards  the  said  several  cases  respectively,  as  the 

of  Halifax)—  i  .Supi-eme  Court  or  the  .Judges  thereof  lia.l  tho 

This  Act  amended  c.  81   of  1804,  and  three  1  power  to  do  when  the  Act  for  appointing  a  Ju'lge 

classes  of  licenses  were  authorized  in  the  City  of  '  in  Ef|uity  was  jmst.     But  it  shall  be  lawful  lor 

Halifax,  tavern,  shop  and   general.     By   Acts  I  the  Supreme  Court,  or  any  Judge  of  that  Umi., 

1869,  c.  3'2,  8.  4,  the  General  License  Act  was  ,  before  whom  the  consideration,  trial,  or  heuriiig 

amended,  and   it  was  provided  that  no  other  |  of  any  question  of  equitable  jurisdiction,  or  any 

than  tavern  and  shop  licenses  should  thereafter  j  such  mixed  questions  of  law  or  c(iuity  ma) 

be  granted.     By  section  10  this  ain^udment  was  I  come,  if  they  or  he  shall  deem  it  expedient  ana 

made  applicable  to  the  City  of  Halifax.  |  conducive  to  the  ends   of  justice  to  do  so,  to 


Ui:}  STATUTKS.  NoVA  f^COTlA.  1414 

..plrr   tin-  c'iiMi  (if  iiiiy   Miiliji'ii   iiiiilttr  aii«iii^<  I'iimii ipiiuii  Aut,  •_' it  ;«  \Vm.  4,  ilmpUT  7l,  piT. 

ilirifiiii  to  III-  tiuimffrred  to  the  jurUiliilimi  ot  iiiittiiijj;  u  Ki'iiiTiil  ullcj^ution  of  iluMiijiijiiuiil  of 

till'  Ki|iilly  .liiilp',  to  lie  ilciilt  with  lU'conliiiK  In  u  way  tuxl  Hiinphfyiii^  the  foini  of  ph'iidiiij,',  hioi 

till'    pllliripli'M    of    t'i|iiitiihh'    jlllinpniihliri'   lUnl  lii'i'll  oliiilltMl  liy  Ndiiii'    iii  i  iih'iil,  foe  it  coiilil  iioL 

till'  i\i>{t'iioii'i«  of  thu  riiHu,"     '|"hu  lOtti  n«jitioii  havu   liofii    iiitfiitioimlly  done,    in  onr   Act   of 

iiMM  tht'Hi)  woi'iIn  :   "All  iictioim  at  liiw,  on  thu  I8(ttl,  clmpter    IL',    thon^'h    hoth    tlu'  pit'ecilinu 

ll'iiil  or  iii'^'iniictit  of  whiih  iniitti'lH  of  I'lHiiliilih'  ami  follow  in^' scei ions  have  hei'n  adoiiteil  in  it. 

jinindietion  jiiise  ;"  and  iiIni  ,    "All   aiticpiiM   iil  I'laetiti ih    muxt    licwaru  of    thin  in  fniiniliii 

liiM  to  whii  h  ei|nitiililu  (U'ffiic'i.'s  nliall  Ik^  wet  up  their  pleiiH,  and  follow'  the  eoininoii  law  form. 

Ill  virtue  of  eiip.  l'_»4,  HecM.  4.S  to  ."lO."     What  is  Coinmu  v.  h  li/nw,  "J  \.  .S.  I).,  I.'J. 

nu'iiiit  here?     It  nieaiiM  all  aetioiiH  at  law  rei|uir' 

ili^    adjudieation     for    the    endx   of    ju.stiie    or 

ii|iiitalile  priniipU'd,  and  aw  \vu  huvu  licM,  in-        20  Victt  (18IMI),  C,  1*2,  h,  1— 

vdkiiii,' that  adjudication  liy  iilea  or  replication        <>/.',■,.,„„,„/„,>   .<(    /;■,,•,/        .' ;. 

mi  ri|iiitalile  grounds-  iiot   the  inartilicial  and    /,, ,.    ,,,,,   ii,,,„^„,„i    .  .i  i    i...'.i     i        i     ■  . 

'  "       .  '"><  "11'   ihowniiii  I  Hint    niinuntl  and  Mxtiz-six, 

iiliKiUil  pleas  Honietinies  preNcnted  touN,  ilainiiiiL'    „,,,„,.„,.,,„;,„//„,„;.,  .  ,„..        .•  .  ',    • 

'  '  '  h    ii<>t"i''onH/inifm(iki(iiii.n(ryor(lmfri:nn,(irliriiiij 

I'MUlly  where  there  is  neither  law  n..r  e,,uity  to    „„  ,„,,,'^„  ,„  ,.,,,,^,.,,,  „,,,^  /,^^^,,  ,^^,  ^,,  ^^,_  ,^^^^  ^^..^^^.^^ 

Mi.iiiin    them,  l.ul    pleas    really   depemliiig    on    nn  .h,  y,urs  ,>,x/  „f/.r  »i,  /Imr  nf  .-/urh  >h,  rl;hl 

luiiii  i|)leH  of  ('(luitv,  which   the  Common  Fjiw    in  jnril,„,„l,   /.,/...,  «..  .i.\,> .  ,    i    ■         '    l 

'         '  1      .  '  rn  iiKihi'  xHifi   I iirry  or  (liKtfisx  or  fo  liniK)   mirn 

0.urlsin\\eBtminsterH<dl  ,'annotasyetrecog-    ,^,,;,„^  ,,,^11  hart   fir.t   ucnud  lo   ^o,w.' ,„  rson 

nizf  ami  act  on,  Imt  which,  by   virtue  of  this    ,/„.o„,,a  ,,'hom  he  vtnImM,  or  if  mu-k  ri,,hl  .hall 

a'clio,,,  are  transferred  hodily  and  as  a  whole  to    ,,„,  ,,„,,  „,.,,.„,,,  ,„  ,„„^  ^„  ,.,.,^,^  ,,,,.^,,„,^  j,,,^,^^^^  /^^ 

tins  Court.  And  how  are  they  to  I.e  tried,  rlnl,ns,th,n  within  hmi/y  ,/„tr.  u,x/  uf'tr  the 
cons,dere.l  and  adjmlicat.,'d  ?  In  the  same  ,i„„  „,  „.,,;,,,  „„  ,,,',,,,^  ,„  ,,„;^.^  ^.,„./^  ,  ,,^  ^^,  ,,.^, 
nmiiMcr  as  this  C.urt  or  the  .h.dges  thereof  had  ,,,,,  ^,  ,„  ,„.,■„,,  ,,,^^  ,„.,,'^,,  ,/,„/^  ,,,,,.„  ,.,.^^ 
IK.wcr  to  do  from  the  year  IS.",,  when  the  Court  ,,,,,,,„,;  ,„  f,„,  ^„  ,.,,,„  ,„„^,',„^  „,.  /,,..^,,^,.,,,^  ^,^^ 
if  (  h.incery    was  aliolished,  to   the  year    IS(i4,    ,,((„„,_" 

ulu'M  the  .Judge  in  K-iuity  was  appointed.  This  This  section  is  similar  to  section  •_>  of  :{  .V  4 
Court  may  transfer  M.ch  cases  if  they  think  Ht,  w„,.  4,  ,..  -JT  (Itnperial),  and  un.ler  that  it  Ims 
I.  the  juris.l.ction  of  the  K,,uity  Judge  :  hut  if  1,,,,,  ^^  as  a  general  rule  that  the  acthm  must 
ik-y  do  imt,  they  have  all  the  powers  of  the  he  hr.,ught  within  twenty  years  after  the  original 
..luity  .Judge  in  framing  ami  enforcing  their  right  of  entry  of  the  plaintitf,  or  the  party  under 
.lanes,  '['he  narrow  h.mnds  of  the  Common  |  ,vhom  he  .■laini.  accruc.l,  whatever  he  the  nature 
Lav  no  longer  restrain  them  in  the  forms  of  its  of  the  defendant's  possession, hut  the  Statute. h,es 
inmd.  and  its  jmlgmenta,  they  have  the  ,„.l  apply  to  eases  of  want  of  actual  possession 
ainiu.nty  ami  the  freedom  of  an  K.iuity  Court.  i,y  the  phiintitf,  hut  to  those  ojdy  where  he  has 
All  the  secti.ms  of  thu  K.p.ity  Act,  chap.  li'T  |,een  .mt  of  it,  and  another  hasheen  in  for  tho 
•-'■Ml  «enes),  which  are  substantially  the  .same  as  prescribe  time,  for  there  must  be  both  absenco 
ihnsc  of  dull,.  |-.'4  (.'hd  series),  then  apply  to  of  possession  in  the  pers(,n  who  has  the  right, 
tlum,  an.l  in  the  language  of  one  of  the  sections,  |  p,j„i  actual  possession  by  another,  whether  ad- 
■;  The  Court,  on  the  tinal  hearing  of  such  cases,  verse  or  not  to  his  possession,  to  bring  tho  caso 
uiiU  give  judgment  according  as  the  very  right    -.viiiii,,  the  Statute. 

■i  tlie  cause  and  matter  in  law  shall  appear  unto  ;  Dt^Uarrts  v.  Shty,  2  N.  8.  I).,  327. 

liii'iii,  and  so  as  to  atford  unto  the  parties  a  com- 
plete remedy  upon  the  principles  which  prevail  I  Ste  EJECTMENT,  30. 
ill  (.'oiuts  of  Eijuity  and  may  be  applicable  to  ' 

;he  particular  ease."  ,      39  yjct.  (jggg)^  ^   2g^  ^^  |3_ 

liuiih  0/  Xova  Scotia  v.  Forman  it  uL, 

3  N.  S  D    141         "'^If  i"'>'soi)s  shall  be  entitli'd  at  all  reasoii' 
able  hours  to  search  these  records  and  to  re- 

nWct  (IfiOA.   ^   19  '^""■'^  "'"'  '^  receive  extracts  duly  certified  by 

mi.  tiSOO),  C.  \i-  ,,^g  Chairman  of  the  Board  of  ^Statistics,  ichich 

hr  Young,  C.  J.— This  road,  under  the  evi-  shall  be  evidence  of  the  entry  certified,  and 
™ce,  is  a  public  way,  common  to  all  the  Kings  prima  facie  evidence  of  the  facts  asseried  or 
Mbjects,  and  would  more  properly  have  been  claimed  in  the  entry,  and  be  accessible  for  ex- 
pleailed  as  such,  but  I  confess  myself  not  at  all  aminatiou  on  payment  of  twetity  cents,  and 
'wry  that  one  refinement  can  be  met  by  another,  shall  be  prima  facie  evidence  of  the  facts  there- 
^hich  enables  us  to  sustain  the  riglit.  I  may  as  |  in  stated." 
*ell  remark  that  the  5th  section  of  the  English  |      Although  the  certificate  is  prima  facie  evi- 


1415 


STATUTES,  NOVA  SCOTIA. 


1410 


denoe,  the  Act  (loos  lu.t  make  it  tl.e  Hole  nor  Chaptfr  S.i  of  Iht  Art,  of  ISO,!,  >■»,•/(  rom,mny, 

even  the  l)est  evidence  of  the  fuct.s  to  he  proved,  d-r.,  v,>on  roHrirtwii,  shall  forJ<ut  and  pa,,  a  .»,« 

Qmen  V.  Alliii,  '2  Old.,  37.S  ;  o/nol  l(ss  than  tm  dollars,     ■••  ,  to  In-  nror,  nil  in 

1  N.  S.  1).,  5.  the  vame  of  the.  City  of  Halifax,"  lir. 

35  Vict.  (1812),  C.  34- 
.SVe  2T  Vict.  (1864),  C.  81. 

36  VICt.  (1813),  C.  14- 
.S(  r  21  Vict.  (1864),  c.  81,  ss.  310  and  3U. 


30  VICt.  (1867),  c.  1,  s.  2- 

Stt  15  Vict.  (1852),  C.  13. 


30  Vict.  (1861),  C.  16,  8.  1  - 

''After  Iht  passimj  of  this  Act  it  shall  not  Ix: 
laiifttlfor  any  /lerson  exrijit  thi  oirncr  or  wjcnf 
ofiniiiinii  claims  then  hdmj  icorktd,  or  unless  by 
iht  authority  in  icritin;!  of  the  Deputy  Commis- 
sioner of  Mints  of  the  district,  to  sdl  orj/urchase. 


36  Vict.  (1873),  C.  17- 

(Aii   Act  to  iiicoiporiite   the   Town  of  Dait- 


except  from  mich  owner  or  authorized  jnrson,  any  j  '"""   ''"7 


quart-/,  contalnimj  '/old  or   sm<  licit   'jold,   at   o) 
within  three  miles  of  any  (/old  di.-lrict." 

This  section  creates  two  distinct  offences, 
that  is  to  .lell  or  /turchtisi  quartz,  except  from 
the  person  mentioned  in    the  first  part  of  the 


Per  Sir  \V.  Young,  C.  J.— 

Our  common  schools,  under  chapter  :«, 
derive  their  support  from  three  sources ;  tirst 
from  the  Covernment  grant  of  SllT.WW  under 
section   41,   secondly   from   an   addition   uiuler 


the  person  u.entionea  .n    ine  nrsv  pa.,   o.  "- ,  ,,^  annual  vote  of  the  Session.s  in 

section.     Where  an   .nd.ctment   .n   .me    count     ^^^j  ;,,^,,.  f„      ,„,,,,  County  purpo.es,  of  a 
charged  that  the  defend.u.tdul  sell  an.l  purchase     ^ '^„  "  '    .,.  af^r  certain  deductions,  to  yiel,! 


quartz,  it  was  held  clearly  bad 


sum  sutHcient,  after  certain  deducticms,  to  yiuW 

Queen  v.  lilacbt,  I  N.  S.  1).,  3SA.  ;  ^^^^^^  ^^^  ^^^^  ^l^^^^^^^.^  ^,^^  ^^^^^^  ^^^  _,^^^^^^.,^  ,,,  f,„.,„ 

and  l)e  a  porlicm  of  the  County  rates  ;  tliinlly, 
under  section  73,  from  the  sums  voted  at  the 
annual  meetings  of  the  sections  held  for  the 
election  of  Trustees,  and  for  deternnning  tiie 
amount  that  shall  be  raised  in  each  to  supple- 
ment the  sut-s  provided  by  the  I'rovince  luid 
County.  The  Act  also  creates  the  machinery  by 
wiiich  the  business  of  public  instruction  is 
carried  on.  Sections  84  lo  KKJ  provide  a  spcciiil 
system  for  the  City  of  Halifax.  Special  pro- 
vision, too,  was  needed  for  the  incorporated 
Towns,  but  this  has  been  left  to  their  own 
choice,  and  it  is  difficult  to  say  how  mueli  or 

^nuer    ^..»    .o„o,    ..    .„    how  little  of  the  Act  remains   in   force  witim. 

Annapolis  Railway  Company  are  liable  to  be  their  respective  limits.  The  Dartmouth  Act, 
assessed  for  the  maintenance  of  the  dyke  pro-  |  1873,  c.  17,  ii>  the  -27111  section,  gives  tlie 
tectiiv  the  marsh  over  which  the  track  of  their  ;  Council  jurisdiction  over  the  support  an<l  regu- 
road  passes,  owned  by  them,  section  16  of  chapter  lations  of  the  public  schools,  and  the  appoint. 
21,  4th  Rev.  Stats.,  applying  only  to  county  1  ment  of  the  teachers,  and,  by  the  '.Stli  suction, 
assessments;  and  recourse  need  not  be  liad  to  I  the  Council  shall  vote,  receive  and  pay  wluUeNCi 
the  land  itself  under  section  15  of  chapter  40,  1  monies  ar(!  re(iuired,  inter  alia,  for  schoo.  rate.^ 
4th  Rev.  Stats.,  as  that  section  refers  only  to  and  shall  have  within  the  Town  all  the  iKmei. 
the  original  construction  of  the  dyke  where  the  !  relating  thereto  vested  m  the  Sessions,  (.um. 

°  ,  -.  c._i iM .;.,,,o  oiwl  Tnvvii  Mei!tlllL'. 

owner  has  not  consented. 

Broirn  V.  Windsor  it-  Annapolis  Jiailway  Co., 

2R.  &G.,430; 
2C.  L.  T.,262. 


30Vlct.  (1867),c.  19,  s.  2- 

Kepeals  sec.  11  of  3rd  R.  S.,  c.  13,"),  and  pro- 
vides instead  that  in  all  causes  in  tiie  Supreme 
Court,  where  discovery  is  sought,  interrogatories 
in  writing  may  be  served  on  persons  competent 
lo  be  witnesses.  Neglect  to  answer  to  be  deem- 
ed a  contempt  of  Court. 

Set  3rd  R.  S.,  c.  135,  ss.  11-14. 

30  Vict.  (1867),  C.  36- 

See  KilUVAIS,  21. 

31  Vict.  (1868),  C.  24- 
Under    Acts    1868,    c.    24,    the    Windsor    & 


32  Vict.  (1869),  C.  1,  s.  110- 

Sce  MINING  LAW,  12. 

33  Vict.  (1870),  C.  99- 

Provided  that  "upon  the  Halifax  City  Rail- 
road Company,  diC,  via'ating  the  provisions  of 


Jury,  School  Meetings  and  Town  Meeting.  lli« 
powers  of  the  Commissioners  of  Schools  iuv 
thus  transferred  to  the  Town  Council,  um 
Trustees  are  no  longer  to  be  appointed,  by 
the  3.5th  section  the  then  school  house  hecaiuf 
the  property  of  the  Town,  and  by  tlie  .'iOtli 
section  it  is  declared  that  the  Town  shall  lie  at 
off  into  a  separate  school  section,  and  the  lown 
shall  have  the  expenditure  of  all  school  vm 
raised  within  the  limits  thereof  for  the  scliook 
of  the  Town,   as  also  of   all  Govennueut  aiui 


1417 


STATUTES,  NOVA  SCOTIA. 


1418 


scluiol  grants  for  such  schools,  which  shall  be  poses,  iiiul  proceeded  under  it  to  oxpropriiUe  land 
paid  to  the  Council— grants,  let  me  ask,  from  \  of  the  plaintiff.  The  bye-law  provided  for  the 
what  funds,  and  by  and  to  wiioni  paid  ?  From  :  appraisement  of  lands  taken  by  tliree  appraisers 
the  (iovernment,  drawn  from  the  Treasury  under  appointed  by  the  Town  instead  of  by  one 
section  41,  and  from  the  sections,  drawn  from  appraiser  appointed  by  tiie  Town,  and  one  by 
the   asbessment  equal   to   liiirty   cents  a  head,    the  owner,  as  under  the  Statute. 


under  section  5'J. 

Qiian  V.  Toini  Council  of  Dutimonlh, 

1  K.  &<i.,4(»2. 

36  Vicl.  (1873),  c.  40  - 

(An  Act  to  incorporate  tiie  Xictaux  and  At- 
lantic Kaihvay  Company)— 

*t  RAILW.\Y8,  7. 

37  TIct.  (1874),  c.  18,  s.  27- 

(Sunnnary  jurisdiction  of  Supreme  Court 
ahdlisiied)  — 

//'/(/,  tiiat  the  decision  of  the  County  Court 
(in  an  appeal  from  Magistrates  who  had  made  a 
conviction  for  violation  was  final,  since  the 
summary  jurisdiction  of  the  Supreme  Court  liad 
been  abolished. 

Cooinn  V.  .}fcL<(ui,  :i  R.  &  C,  479 ; 

Cochran  v.  Larconi,  3  R.  &  C,  480; 

AW   V.  Jinrkt,  1  R.  i'fc<J.,94. 


Ht/il,  that  notiiing  could  be  done  with  a 
summary  cause  removed  into  the  Supreme  Court 
liy  c(  riiornri  since  its  summary  jurisdiction  had 
been  abolislied. 

Ewjur  V.  Carey,  1  R.  &  (1.,  49  ; 
IVallacc  V.  Kln,/',-20'S.  S.  R., 

(8R.  &  C),  283; 
SC.  L.  T.,449. 


fftlfl,  /irr  Smitli,  Weatlierbe  and  Ritchie,  JJ. 
— That  the  bye-law  was  ii/trn  rin.s  the  powers 
of  the  Council. 

McDonald,  J.,  dixsenlinii. 

I\r  Ritchie,  J.— Tiie  making  of  bye-laws  for 
the  expropriation  of  land  is  an  extreme  power 
and  should  not  l>e  held  tol)e  given  by  implication 
unless  (li)solutely  necessary  to  enable  the  Coun- 
cil to  {'erform  the  duties  imposed  upon  tiiem. 
In  the  present  case  no  such  necessity  apjie^ireil. 

iJill'M  V.  77ic  Town  of  Pic/oit,  7  R.  &.('•.,  128  ; 

7  C.  L.  T.,  147. 

37  Viet.  (1874),  c.  104- 

(An  Act  to  facilitate  arrangements  between 
Railway  (\)mpanie9  and  their  creditors) — 

The  Act  is  published  in  the  Acts  for  187.'i,  as 
chapter  104  of  Acts  of  1874.  As  to  validity  of 
Act, 

Sw.  BRITISH  XORTII  .iMERICA  ACT,  2  &  :i- 

RAILWATS,  14. 


38  Vict.  (1873),  c.  47,  s.  1- 

"  The.  inhahitaiits  of  Iht  Toicn  of  Truro, 
within  the  limits  hereiiiafti r  ihlimd,  f"'c  connti- 
tuitd  a  tiody  corporate  and  politic  hy  the  name 
of  the  "  Toicn  of  Truro." 

Stipendiary  Magistrate  of  the  Town  hdd  dis- 
,  (lualified,   because    l)y    this   section   he   was  a 
37  VICl.  (1874),  C.  20  and  21—  I  member  of  the  Corporation,  which  was  to  benefit 

These  Acts  were  borrowed  from  the  Ontario    by  the  prosecution. 


Acts,  ;{(}  Vict.  c.  ^^  and  4.  ' 

*c  QUEEN'S  COINSEL. 


37  Vict.  (1874),  c.  54- 

Ciiapter  54,  of  the  Acts  of  1874,  incorporating  '■  Glasgow) 
Ihe  Town  of  Pictou,  conferred  upon  the  Town  | 
Council  "  power  to  control  the  making,  maintain- 
ill),',  improving  and  altering  the  roads,  streets,'' 
&c.  .  .  .  "  of  the  Town,  and  tiie  laying  out 
of  new  ones  if  necessary,"  and  also  to  make 
bye-laws  touching  all  matters  within  their 
authority,  but  gave  no  express  autiiority  to 
expropriate  lands  for  street  purposes,  or  to 
make  liye-laws  in  relatirm  thereto.  The  Act  of 
Inccirporation  gave  the  Council  the  same  power 
in  reference  to  the  expropriation  of  lands  for 
street  purposes  as  were  formerly  vested  in  the 
Sessions. 

Tlie  Town  Council  passed  a  bye-law  for  the 
fxpropriation  of  lands  retjuired  for  street  pur- 


Tupptr  v.  Murjihy,  3  R.  &  (J.,  173. 

38  Vict.  (1875),  c.  49- 

(An  Act   to  incorporate   the   Town   of   New 


See  ASSESSMENT,  IV. 


39  Vict.  (1876),  c.  3- 


39  Vict.  (1876),  c.  4 


SV'  RAILWAYS,  18. 


Set  RAILWAYS,  18. 


39  Vict.  (1876),  c.  11- 

(Act  to  regulate  the  sale  of  drugs  and  medi- 
cine)— 

A  person  holding  a  diploma  and  registered  as 
a  member  of  "The  Nova  Scotia  Pharmaceutical 
Society,"  cannot  indiscriminately  vend  intoxi- 
cating liquors  in  violation  of  the  clear  provisions 


1419  STATUTES,  NOVA  SCOTIA.  1420 

of  tlie  license  laws,  mid  excuse  liiiiisolf  on   the  or  art'  hj'i  to  a  jiirij,  or  n'ilh  hi-i  ilirisioii  xijictn 

plea  of  being  a  ilniggi.st.  motion  for  a  iioii-kiiI/  or  uki'  trinl,  or  in  ttrnsi 

fi'fir<hi<r  V.  I'cirr,  2  K.  itfLji^").  of  jfnli/nunl,    or  for    jit'lijminl    non     oh^iniifi- 

reredii'/o,  or  upon  the.  admiiiiou  or  rijifiimi  'it 

soviet.  (1870),  f.  49,  8S.  1,2  and  4—  l"//  n-iili'nn-,   he  mny  njtiihi    to   th>'   Jml.i,    .r/io 

Hy    leutiuii    l,a  ("oiirl  for  tiie  trial  of  civil/'"'"'""-  '■m""  M  a  ruM   .jrantiwi  him  In,,:  i„ 

canses  in  the  Town  of  Truro  is  constituted,  to  be  «/'/"'«'  >o  ""■  Sitpnme  Court,   vhl,h   s,,;,/  ml, 

known   as  tlie  "Town  Court,"  to    he   jjresided  "*"'''   "'"■'''  '*«  ohju'lions  or   iirouwls  o/' r,i,/,.ul, 

over  l.y  tlie  Recorder  or  Stipendiary  Magistrate.  «'"'  "•'"'''''  "f"''^  '""''   '*'  ''"''.'/'   "''"'''.  '"  '"-  '''<■ 

l{y  section  2,  it  is  provided,  that  the  olHces  of  '-'-./ion,  >irant  or  nfwo." 

Recorder  and  Stipen.liary   Magistrate   may  he  ^^''''^  ''"^^  >""''-''■  this  section,  tlierc  wiis  ii„ 

filled    by    the   stvuie   person,  appointed    by    the  '^PF'iil  f'"">  tl'C  'lecision  of  the  County  Conn 

Mayor  and  Council,  and  who  is  to  be  a  Justice  on  (luestions  of   fact. 

of  the  Peace  ;    and  tiiat  in  case  of  his  inability,  Lochhar/  v.  IFm-'on  ,1  n/.,  'A  R.  kV.,  :,i:i 
Ihrongh  sickness  or  otiierwiae,  to  perform  his 

duties,  tiie  (^)uncil  are  empowered  to  ajipoint  a  40  VICt.  (18*1*,  C.  0,  SS.  25  and  *U  - 

suitable    person    to    fill    such    olHce    during    his  Section  .S4,  read  in  coiinection  with  sect  ion  •.>:,. 

absence  or  iiicajiacity.     Section  4  provides  that  in  the  Act  to  amend  tiie  Act  to  establish  Coiuity 

all  tines,  costs  and  fees  are  to  form  a  fund  out  of  Courts  (1S77,  e.  0),  repeals  tlie  jirovisiou  of  .sec- 

wiiicli   the   salary   of  the  Recorder  and  tiie  ex-  tion  'I'A,  of  the  Coimty  Court  Act  of  lsT4,  c,  IH, 

penses  of    tlie    Court  are   to   be    defrayed,  any  allowing   an    appeal    from  tiie    decision   of  tin- 

deficiency   to  be  paid  out   of,  and  any  l)ahince  ;  Judge  upon  a  ([Ucstion  of  fad. 

remaining  after  defraying  such  expenses  to  lie  Din-ar  v.  Min-jihi/,  1   R.  it  C,  ^4. 
paid  into,  the  general  funds  of  tlie  Town. 

T!ie    ilefendaiit    was    convicted    before   F.  A.  40  VIct.  (18J«)    0.40  — 

Liuiience,  Stipendiary  Magistrate,  presiding  in  ,  ^„  j^^t  to  amend  the  Act  to  incorpoiaii'  tlic 

the  Town  Court  of  Truro,  of  selling  intoxicating    'p,,^^,,  „f  Dartmoutli) 

liquors  contrary  to  law.    The  Stipendiary  Magis-  ,^,,  ^q  y^f^^  (18»;{).  C.  1». 

trate  was  a  I'atepayer  of  llie  town,  and  received 

a  fixed  .salary  as  Stipendiary,  payable  out  of  tlie  |q  \•^„^    (\^11)    f,  57^- 

funds  of  the  Town,  to  whicli   half  the  penalty  ,  ^„  j^^l  to  amend'the  Act   to  incorpoiiitc  tii. 

imposed  became  payable.  r,,,,^^.,^  ,,f  j^-^,^^.  ,;i,^,g„„.) _ 

Nilil,  that  the  Magistrate  was  disqualitied  l)y  ,^««  ASSFSSMFVT  IV 
interest  from  acting  in  the  inattei'.                          | 

rui>i„r  V.  Mnrph,,,  li  R.  &  (1.,  m.  ^j  y^.^^  (jg-^,^  ^^  g^  S,  g_ 

„„  ...   ^    ,^„_„  wv         -        ....  "Xoiirllhslnniliini  mil/ iloiihlxnti'ii'l  hirin/on. 

30  ^  let.  (18I6),_e.  40,  S.  .1  and  13-  j  ^,   ,„  ,,,   ^,^„., ,.  „/„„,;  ^onnti,  Com-t  Ju,i,,  or 

(.Furisdictifiu  of  Town  Court  of  Truro) —  ^         .    .  <■     ,i        r  ,•„.••    „/.,„/ ,;)(„,.^ /„ 

^  '  CoDimit-iioiirr  for  fhf  rdut  of  iiiiolnnt  ihiiior^  to 

Section   •_'.■{   of  4th    R.  S.,  c.   T.".,  .lirects  the  ^.,,,^^.,,  i„,ol,;nt  ihhtor^  'in  'all  mv,,-  ,rh.,r  .urh 

penalties  under  that  cliajiter  to  be  reeovere.l  in  ,,^,^,^,.,  ,,^,.,,  ,,^^„  ,.^,,,^^.,,,  ;,,  ,,„   c"^,,,,,,^  Co»rf.s-, 

the  same  mannrr  and  with  the  like  costs  as  if  ^,.^^,.,,  ^,,„  ^,„„„,,,  „,-,;„,  ^,,,.^  /^  ,.taUish  C.„<i,ii, 

they  were   private  debts.     The   byedaw  of  .Ith  Courts,  Ih^'yonJiwis  in  .virh  rr,..,-.^  shall  h,  hid 

March,  IHTH,  approved  by  the  Covernor  in  Conn-  ,^  ,^^,    ^.^/.,  ^^^^^,  ,,;„,,,-„,,^  „„,,    „„  „,,;„„  /„  „,,, 

cil,  and  having  the  foice  of  law  under  s.  13ofc.  ^,^,^,.,  ^f^^j/  ,„.,., afltr  I.,-  tnbi,    or   siist„in,,l,  Uij 

49  of   187(5,  recognizes  the  jurisdiction  of  tlie  ,.^^^^„   ^j.  ^,^,^   ^.„,;,   pror„,liii;,s    h.i,,,,    ilhijal, 

Town    Court   over  offences    in   violation  of  4tli     •       ,■  i         «•;" 

III  ml  III  or  roiil. 

R.  S.,  c.    7o.  ,  t>    ,  ,,     0-.         JMI,   that   the  Act    was  not  iillrn  nV.^tiie 

In  ri  frasfr,  1  R.  &  (..,  .S,)4.    .        ,    '     .  ,  ,     , 

Local  Legislature,  and  that  sec,    0   was  retro- 

30  Viet.  (1876),  C.  74-  ,  '*^'^''^'' Johnston  v.  Poi/ntz  et  al.,  2  R.  &  <i.,  !!«; 

*^  RAILWATS,  r>  &  18.  '  Cuir,i>  et  al.  v.  Caldm-.U,  1  R.  «:  (i.,  74. 

40  Vict.  (1877),  c.  6,  8.  25-  |     41  Vict.  (1878),  c.  0,  s.  14- 

"/«  rase,  either  ]>artij,  in  a  cause  in  any  of  ''Xothintj  in  the  2iitli,  26th  or  29th  seetimis 
said  Courts  where  the  jud<jme.nt  obtained  is  orer  of  the  Art  hi'vr.htj  amended  shall  hr  cniistriim 
forty  dollars,  nhall  he  dissatisfied  vith  the  deci-  to  prevent  the  Judge  in  his  discretion  nUoirinil 
aion  of  the  Judije  upon  any  point  of  lair,  or  with  an  appeal  upon  any  point  of  law  or  praetice  "i 
the  charye  to  the  jury,  where  any  fart  or  facts  is    any  matter  tried  or  argued  before  the  VdmH  of 


1421 


STATUTES,  NOVA  SCOTIA. 


1422 


jH(liir,riHlin)itih  thf  fimouiit  ill  coiitrovt')'s>imnii 

hi    h  SK  tllllH    flirllj  lldlllirx,  such  jlllhU  (if  lllH'    to 

hi'  siirriiirtlij  .sliitnl  hij  hhii  fur  tliioiiiniuii  uf 
(hi  Ciiiirt  of  Ap/iciit ;  tniil  tlic  Jinliii'  h  hinhij 
iiuUinfiziil  to  i/rmit  mirli  (iji/wdlK  in  liis  dixrri- 
limi  iijinn  Kiirh  tm'ms  (ID  to  sn'Hn't>i  o)'  iitlicnnisr 

IIS    III'    Xllllll    .Sll'  jit." 

l)ufL'ii(laiit  ol)tiiiiie<l  a  rule  iiist  to  set  asiilc  a 
jiulgiiit'iit,  l)Ut  tlie  (.'(lunty  Court  Jiiilge  dis- 
cliiirgi'il  tlic  rule  on  the  grouml  that  it  had  not 
litcii  moved  for  witliiii  a  year. 

JI'liI,  that  an  appeal  lay  from  nueh  deci.sion 
uiiilir  the  ahove  section. 

Aiiilirsoii  V.  Tat/lor,  'A  K,  &  ('.,  .ViO.. 

There  must  he  something;  to  indicate  to  tlie 
Court  c)f  A])i)eal  that  the  a|)peal  is  sent  u\\  hy 
till-  .liidge  in  Ills  discretion. 

MiKii-du  V.  Oiih-(i),i,  .S  R.  Cm  (;.,  'JO!). 

41  Vict.  (1818),  c.  1«- 

s  <  15  Vict.  (1852),  c.  13. 

11  Vict.  (ISIS),  c.  35  - 

(nnnnissioners  were  appointed  under  i'.  .'{.">, 
Acts  of  187s,  to  re-appraise  lands  taken  for 
iiihvay  purposes  in  I>ii;liy  ('ciunty,  and  it  was 
pinvided  hy  the  Act  tliat  the  re-appraisement, 
"together  with  the  costs  heret.lore  incnrred," 
.siioiild  be  a  County  charge. 

Hilil,  that  the  co.sts  for  services  hefore  tiie 
Coiiitnissioners  for  re-appraisenienl  could  not  he 
tuxfd,  as  the  Act  pioviiled  only  for  tli.>se  incurred 
piinr  to  its  i)assing. 

In  ri    !!'« >Vr  m  Co)iiitiiss  linilimy, 
(X  pari  I  Ha  nil),  1  R.  A-  (i.,  170. 


I'iVlct.  (18J9),C.l 

Acti- 


(County  Incorporation 


/■'/•  Weatherhe,  .1. — Confers  upon  tile  Muni- 
cipal  Council  and  their  oiKcials,  the  power  and 
iuitliority  which  the  Orand  Jury  and  Sessions, 
aiiil  their  ollicers,  formerly  had. 

l!y  sec.  1  of  cliap.  'Jl  R.  S.  (4th  series),  the 
liraiid  .Jury  shall  nominate  three  persons,  one 
of  whom  shall  he  apjminted  hy  the  Se.ssions, 
Ticiisurer,  "who  shall  give  a  hond  to  Her 
Miijesty,  with  sureties,  to  he  approved  of  hy  the 
Ciistos,  in  a  sum  to  he  named  hy  the  Sessions, 
and  siiall  he  hworn  into  otBce."  The  contention 
is,  tliat  hy  this  legislation,  the  hond  is  reiiuired 
to  he  to  Her  Majesty.  By  .section  H4  of  the 
County  Incorporation  Act,  read  with  sub-section 
30,  tiie  Municipal  Council  may  make  regulations 
for  the  management  and  g(H)d  order  of  their  pro- 
ceeiliiiga,  and  may  make  bye-laws  for,  among 
other  things,  defining  the  duties  of  Municipal 
officers,  and  the  manner  in   which   they   shall 


account   for   money    received   or   exiiended    by 
them. 

And,  hy  another  section,  all  Acts,  and  parts 
of  Acts,  inconsistent  with  the  Count}-  Incorpora- 
tion Act,  arc  repealed. 

One  of  the  bye-laws  of  the  Municipality  in 
force,  read  as  follows  :  — 

"  The  clerk  and  treasurer  sluill,  eadi  year, 
give  bonds  to  the  Municipality  by  two  suHicient 
sureties,  in  Clie  sum  of  !*.'{, 'K^l  for  the  faithful 
|)erforinance  of  tlieir  duties,  'j'he  bonds  herein 
mentioned  shall  be  subject  to  tiie  approval  of  this 
Council." 

1  am  of  opinion  tliat  this  bye-law  is  not  ultra 
ririi,  as  was  contended  for  defendants.  And  1 
do  not  think  that  the  wonls  "give  bond  to  the 
Municipality,"  are  to  be  construed,  as  was  con- 
tended at  the  argument,  as  rei|uiring  that  bonds, 
in  which  Her  Majesty  is  the  obligee  aic  to  be 
J  lodged  with  the  Municipality  merely,  but  the 
words  indicate  that  the  Municipali' "  is  to  be  the 
obligee.  It  is  to  be  observed  in  this  connection 
that  the  Sessions,  not  possessing  a  corporate 
existence,  was  inciiiiable  of  hecoining  a  party  to 
a  bond  as  the  Muiiicijiality  is. 

Mnnir'iiul'ily  oj  Shillnirni  \.   .^f.iriliall, 

7Pv.  &  <;.,  171. 

Sii   BOXD,  -24. 

42  Vict.  (1819),  C.  1,  s.  «0- 

T/ip  Muiiiripiil  CuunciU  shall  appoint  n  mfficient 
ntiiiiher  of  pound  kecperx,  fence  vieirers,  overseers 
uf  the  hi(jhira!is,  road  surveytns,  and  of  sueh  and 
[  as  tnani/  officers  as  may  he  necessary  for  carryiny 
into  effect  any  of  the  provisions  of  thin  Act,  or  of 
\  any  other  Act  of  theLeyislature  confuininy  any  of 
\  the  sn'y'ecfs  placed  under  the  Jurisdictions  of  the 
'  Conncils  or  of  any  hye-law  of  the  Municipality  ; 
and  in  like  manner  to  displace  any  of  them  and 
ap/)oint  others   in  their  room,  and  to  (uhl  to  or 
.  diminish  the  numher  of  them  as  often  as  the  cor- 
'■  porafion  shall  see  fit,  and  to  reyulate  their  powers 
and  limits  wherein  they  sh(dl  he  exercised;  and 
shall  re(julate   and  prescrdie    the    duties    of  all 
officers  actiny  under  the  authority  of  the  corpora- 
tion, and  the  penalty  of  their  makiny  default  in 
the  performance  of  such  duties,  and  shall  settle 
the  remuneration  of  (dl  such  officers,  in  alt  cases 
ichere  the  same   is  not  settled  hy  an  Act  of  the 
Leyislature,  and  the  providiny  for  the  payment  of 
the  remuneration  which,    by  Act  of  the  Leyis- 
lature, or  by  the  bye-lnws  of  the  Municipality, 
may  he  provided  for  such  officers ;    and  shall 
reyulate  the  bonds  and  recognizance,  or  other  secu- 
rities, to  be  yiven  hy  such  officers  for  the  faithful 
(lischarye  of  their  duties,  the  penalties  for  refusing 
to  serve  in  any  office,  and  for  the  infringement  of 
any  hye-law  of  the  Municip(dty." 


1423 


STATUTES,  NOVA  SCOTIA. 


1424 


Ptr  Rigby,  J.— The  Councils  have  not  power  |     Affiilaviiof  ilefendant  contained  the  followinj,': 

iindtr  this  section  to  limit  the  term  of  ojRce  of  i  "  I  am  not  and  never  was  intleltted  to  tlic  pliun- 

County  officials,  indeiu'iidenlly  of  tiie  term  of    tifT,  us  alleged,  and  that  I  have  a  gooil  ilcfinco 

office  ua  it  existed  under  former  legislation.  |  \\\mn  the  merits,  and  I  believe  1  will  he  aijlf  lo 

Lttlntdj  v.  Dillon,  li  R.  k,  <i.,  14C.  !  sulistantiate  a  good  defence  on  the  trial  heruiif," 

//(A/,    that    defendant    had    not    "  inailf    it 


42  Vict.  (18J9),  c.  1,  8.  16- 

(Actions  l>y  or  against  Municipality  to  he 
brought  in  corporate  name,  method  of  service, 
&c.)- 

This  section  removes  what  the  .Judicial  Com- 
mittee in  the  case  of  llorow/h  of  IMhnrst  v. 
J/'7'Air.soH,  4  Appeal  Cas.,  •_'.")(),  held  to  be  the 
principal  objection  lo  tlie  maintenance  of  the 
action  in  h'lisxill  v.  The  Men  of  Ih  ron,  '2  T.  R., 
liHT  and  some  other  cases  in  jiari  mttl>  rin. 
Mi(Jiinn-ii:  v.   Thi   AIiuiirijKilifi/  of  St.  Mary'*, 

.-.  R.  &  (i.,  4!).3. 

42  Vict.  (ISIfl),  c.  2,  8.  3  - 

"/«  (til  cdsis  irlii  ri  (I  'ti/enilant  sha/l  lie  arri\(- 
III  on  (I  idjiiun  issuiil  hy  «  Jn'<iiri  or  Jiislins  of 
the  Piai-f,  it  nhallhe  vci'ismri/  for  the  /ilaintiji', 
in    thi    rijfiildril   on    irhirh   said   iitpiwt   niiiy   lie  < 
i/rantiil,  to  s(t  forth  /lartirularly  the  i/rounili  for' 
his  lieliij   that   dejendnnt    is  aliont   to  hare  the  j 
Cnnntij,  in  irhirh  msi    it    shall  lit    disrri.tionary 
with  thi  .histirr  to  issne  a  summons  or  cajiias  " 

Capias  issued  ity  Magistrates  set  aside  on  the 
ground  that  it  was  issued  and  the  defendant  ar- 
rested uniler  it  witliout  an  atlidavit  of  the 
grounds  of  plaintiff's  belief,  as  re(iuircd  by  tiiis 
section. 


appear  "  that  he  had  a  good  ileftiiee. 

Litres  V.  Jhirliw/,  4  R.  &  C,  I'.'s, 

42  Vict.  (1S79),  C.  39  - 

Htld,  intra  riris  the  Local  Legislature. 

.S^"  BRITISH  NORTH  AMERICA  ACT,  I. 

i  Pir  Hitdiic,  K.  ,1.— Such  a  corporalimi  is 
the  Halifax  Vacht  Club  would  not  conic  iimifr 

'  the  operation  of  the  Knglish  Winding  up  Act 
and  neither  that  Act  nor  ours  seem«  as  iqipli- 
cal)le  to  clul)s  such  as  this  as  to  iorporali(iii>  in 

I  general ;  but  the  wording  of  our  Act  differs  Iri.m 
the  Knglisii,  an<l  in  teruis  seems  to  embrace  tliis 
club.  The  second  section  is,  ^^this  Aft  slmll 
a/i/ily  to  nil  inror/inraled  rom/ianii  ■<,  assoriaiimii 
or  fliihs  inrorpwated   liy  the    l^niislalnre  of  ih> 

,  Prorinre  o/\orn  Sco'ia,  or  niidi  r  the  aulhorliij 
of  any  Art  of  this  Prorinn  ,"  it-''. 

//'/'/,  that  the  l'rr)vincial  .\ct  in  reference  to 
winding-uj)   of   companies,    differing   from   tiic 

<  Knglish  Act  in  that  it  was  ex])ressly  maile  ap- 

I  plicable  to  clubs,  could  be  invoked  for  tiie  pur- 
pose of  windinguj)  the  Halifax  Yadil  Club,  I'lit 
that,  as  there  was  no  inilividual  liability,  lunl  it 

I  was  admitted   there  were  no  assets,  the  i)riiyti' 

^fcL,au  v.  Jh-Kay,  1  R.  &(;.,  383.1"^  *''«   l'*^^"^'""   "'"'"'''    ""^.   '*    b"'""*^^''-  ^'^  '' 

would  only  create  needless  litigation. 


In  re  The  Halifax  Yarht  Chili,  R.  K.  j).,  \::, 
42  Vict.  (1819),  C.  66 


S"  RAILWAYS,  4 

42  Vict.  (1879),  c.  69  and  c.  70- 

S.I  RAIUV.ilS,  1^ 

43  Vict.  (ISSO),  c.  2,  s.  8  - 

•'And  the  Clerk  ahull  hare  pinrer,  in  enxe  >if 


42  Vict.  (1819),  C.  12,  .s.  1- 

"  In  no  canw  instituted  for  breach  of  the 
License  Law  for  the  sale  of  into.vicaliny  liquors 
shall  a  writ  of  certiorari  issue,  unless  the  jitirty 
applyiny  therefor  shall  make  the  same  affidavit  j 
required  in  case  of  appeal,  viz.  :  '  That  he  dtd 
not  by  himself,  or  his  ayent  or  clerk,  with  his 
hnowledye  or  consent,  sell  the  liquor  contrari/  to 
law,  as  charytd  in  the  summons.'  " 

Held,  that  the  .Statute  did  not  apply  where 

the   Magistrate  before  whom   the    proceedings !  «''•"''«'•£  f>-<»'t  ^'onu',  sickness,  or  l.eimj  othr- 

were  had,  was  dis.jualitied  by  interest.  i  '"■«''  ««""''  <"  "«''«'^  ^"  '"■■"  ''""■'•"•  '"  "'''"""' 

Tapper  v.  Murphy,  .3  R.  &  (i.,  17.3.  '  "  '^''/"''i/  ^'  <ict  for  him,  for  whose  comlm-l  he 

_      I  shall  he  responsible." 
CERTIORARI,  .31.  .      j^^^  Deputy  Clerk  of  the  County  Court  liciil 
authoi'ized  to  sign  writs,  although  the  Clerk  be 
not  ill,  absent  from  home,  or  otherwise  lumlile 
to  attend  to  his  duties. 

Hank  of  Nora  Scotia  v.  McKirroie, 

.')  R.  &<l.,i75. 

Held,  that  the  onus  was  on  the  party  seeking 


.SV. 


42  VIct.  (18«9),  c.  19,  8.  21- 

"  When  security  for  costs  is  applied  for  upon 
the  yroutul  that  the  plaintiff  is  beyond  the  Juris- 
diction of  the  Court,  no  such  security  shall  he 
ordered  unless  it  be  made  to  appear  by  aff^lacit 
at  the  time  of  such  application  that  the  defendant 


lias  a  (food  defence  to  the  action  on  the  merits,    to   r.void   the  writ  to  show  that  when  it  wiis 
rtjirf  that  such  application  is  not  made  for  delay."  \  signed  by   the   Deputy,  the  Clerk  was  neitliir 


1425 


STATUTES,  NOVA  SCOTIA. 


142G 


"  Slick,  iihsent  from  Ikhiu',  ikh-  (itlicrwitie  unaMe 
t<j  iittentl  to  his  ilntics." 

Kamlirl:  v.  Arthur,  "i  H.  &  (i.,  ■J.SO. 

43VICt.  (1880),  0.2,8.  II 

(Dt'finus  jurisdiction  of  ("omity  Court) — 
'•The  Count;/  Cnurtuhull  huri'  Drdjinal  juris- 
'U'li'iH  inul hiihl jilriis ill  (ill  iirti'ius tr  vniitrnrtu 

irhi  re  thr   ilrht  iir  (hniidi/r  (liiis  IKit  I'tCiril  j'liltr 

Itiniilrnl  iliilhirs,  tnul  in  nut  Ii-kk  than  lirrnty 
ihilhirx  ;  mill  in  'ill  other  (Vtionn  whirr  thi' 
'hiiiiiiijcn  vhiiincd  do  not  cj-rml  two  hundred 
'ii'lhirti,"  tt"'-. 

*'  PKOIIIBITION,  -'. 

43  Vict.  (ISHO),  c.  2,  s.  43- 
(l'roccc(liii{,'s  in  cii.su  of  ovcrliolding)  — 

^ v<  oth  K.  S.,  c.  lOi,  8.  43. 

43  Vict.  (1880),  c.  2,  S8.  .11,  32, 53  mid  .15  - 

Cf.  5th  R.  S.,  0.  105,  88.  r.2,  55  and  56- 

/'';•  Hig1)y,  .). — In  tiiu  caso  of  Alidriirs  V. 
IMiidirx,  4  R.  &  (i.,  'i.'JO,  I  took  occasion  to  sug- 
gest lliiatit  WHS  worthy  of  cousidoratioii  wlicthcr, 
in  trials  witii  a  juiy  in  County  Courts,  other 
tliiui  those  spuciticd  in  section  "i")  of  tiic  Act,  the 
pi'iiicchire  wliicli  was  adopted  in  this  case  was 
tl'.c  |iro|)er  one.  The  hmguage  used  in  section 
.'i,')  is  in  marked  contrast  to  that  employed  in 
-eition  ")!,  wliicli,  instead  of  providing,  as  tlie 
fiiriiier  section  ch>es,  tiuit  the  cause  shall  l)e 
tried  hy  a  .Jndge  with  a  jury,  enacts,  that  a  jury 
is  to  he  empaimelled  when  the  .Judge  deems  it 
pioper  to  have  any  fact  or  facts  coiitroverte<l  in 
the  case  tried  hy  a  jury.  And,  in  the  earlier 
part  of  that  section,  it  is  provided  that,  when 
there  is  no  jnry,  the  .Judge  shall  "decide  the 
tacts  as  well  as  the  law."  From  which,  it  is 
.ippart'iit,  that  the  Legislature  intemled  to  mark 
the  distinction  hetwcen  a  decision  ii])oii  the  facts, 
itnd  a  decision  upon  the  law.  .So  sections  .VJand 
"lS  refer  to  the  jury  as  emjmnelled  to  try  the  fact 
or  facts,  the  former  section  providing  for  the 
posti><)ning  of  the  further  trial  of  the  cause  to 
tiie  (lay  for  which  the  jnry  has  heen  sunmioned. 
It  seems  to  me  very  necessary  that  this  limitation 
"f  til'.'  power  of  the  jury  to  pass  only  upon  con- 
troverted (jnestions  of  facts,  should  lie  kept  in 
>ie\v.  It  is  important  that  the  .Judge  Iielow, 
as  Well  as  this  Court,  upon  appeal,  should  know 
precisely  what  view  the  jury  took  of  each  coii- 
trciverted  fact.  Unless  the  .Judge  hchiw  had 
■Hell  information,  I  do  not  see  how  he  could 
«ell  exercise  the  power  of  setting  aside  their 
tiiiiliugs  on  any  fact  or  facts  suhmitted  to  them, 
«heii  dissatisfied  with  such  finding,  as  provided 
i"r  in  section  50. 

Rhoiks  tt  al.  v.  Pntrid;  6  R.  &  (i.,  '2r,i. 


j     43Vlct.  (1H80),C.  2,  8.  .15- 

j      Qiuure,  whether  juries,  in  eases  in  the  County 

I  Courts,  other   than  those  mentioned  in  section 

'  ■">  of  the  Act,  should  Ik^  instructed  to  give  gen- 

I  eral  verdicts,  and  whether  the  projier  procediu'e 

is  not  tfi  olitain  their  tindings  on  the  controverted 

facts  which  the  .Judge  ilcenis  it   proper  to  snli- 

init  to  them,  after  which  tht!  judgment  in  the 

cause  shoidd  lie  given  liy  the  .Judge  irrespective 

i  of  the  jurv. 

j  ",  J  (,(/;-.  »'.s  v.  iMiidu-s,  4  H.  it  (I.,  •_•;{«. 

I     43  Vict.  ( 1880),  c.  2,  s.  50- 

••All  (iffld'icit.i  to  lie  nsi-d  in  the  Conntij  Court 
or  lii'J'ori:  mil/  Jiidiji'  thereof,  mmj  hi'  sworn  he,- 
I  fore  any  Judi/e.  of  the  ('onntij  Court.  A'r.  .  .  . 
!  mill  when  sueh  njUdnrits  ore  uinde  hij  imrlii  s 
residinij  without  the  I'rurinee,  they  shull  l-e 
swio'ii  us  jirorideil  in  sielion  ■'>■'{  of  ehupter  .'>■/, 
li'erisiil  St'ltutis." 

An  atiidavit  to  .set  aside  pleas  was  sworn 
without  the  Province  before  a  commissioner  ap- 
]iointed  to  take  attidavits  for  use  within  the 
Province,  hut  was  not  authenticated  liy  the  seal 
of  the  connnissioncr. 

//i/d,  that  the  atiidavit  could  not  he  read. 

Lirin  if  al.   v.  Ilrlniid,  .">  R.  &  (i.,  L'lW. 

43  Vict.  (1880),  c.  2,  8.  ;«-.1th  R.  S.,  c.  105, 

8.75- 

(Motion  to  (|uasii  ajipeal  to  Comity  (^ourl) — 
Ilild,  that  a  County  Court  . I udgtMiad  power 
to  amend  an  atiidavit  for  appeal  finni  the  .Magis- 
trates' (\)urt  which  was  not  headed  in  the  cause, 
and  hail  not  the  words  "  liefore  nie"  in  the  jurat. 
The  .Judge  of  the  County  Court  was  satisfied 
that  the  defects  occurred  through  inadvertence, 
and  without  the  fault  of  tlie  appellant,  and  with- 
out any  intention  to  evaile  the  re()uirement  of 
the  Statute,  Imt  dismissed  the  appeal  from  tlie 
Magistrates'  Court  (ui  the  ground  that  he  had 
no  power  to  amend  the  athilavit. 

IVoodirorth  V.  /;(«/<,  ti  I^  &  (J.,  •_'!)."). 

43  Vict.  (1880),  C.  2,  s.  83 -Cr.  .1th  K.  S.» 

0.  105,  8.  81- 

(Summary  causes  must  lie  so  marked) — 
.Moaning    of    the    word    "  del)ts "    discii.s.sed. 

"  Actions  for  the  recovery  of  debts  ''  comprise 

all  actions  ex  eoiitrwtii. 

IVomlloek  v.  Diekin  ti  al.,  0  R.  &  C,  290. 

43  Vict.  (1880),  C.  2,  8.86- 

(Xo  pleadings  in  summary  cause)— 
(irounds  of  defence  cannot  he  demurred  to. 

Ste  4tb  R.  8.,  C.  94,  8. 121. 


1427 


STATUTES,  NOVA  SCOTIA. 


142.S 


4»Vlct.  (1«80),c.  2,  s.  81-  ] 

•• '/'/(('  I'V/V  slnill  hitri-  iinlnrnid  thcvrnn  or 
(Uini-.i-ei!  thi'i'itn  a  unticc  "/  //•("/.  iniil  n  nntirc 
rfiiuiriiiij  thr  ih'/riiihnit.  vithiii  tin'  prriod 
thiviiii  Kiiirijlril.  Ill  jtic  <ni(l  Kirrt'  IiIk  iiriiinnlti 
iif  ilifinri-  ( vhirh  hiinj  hf  in  tlir  fiiriii  nf  the 
niitii-i'  In  iijijifitr  mill  pjiuil  Ini'iln/in'r  nsi'il), 
mill  til)'  ilifiiiilmit  kIiiiII  wd  hv  ohUiiiil  tn  pn- 
pm'i'  fur  triiil.  '•/•  ^'  jUr  i>r  sr-rrc  thf  ijronnds 
of  his  ih'fi'licf,  nvtil  xiirh  imtiris  linrv  In'rlt 
ftorrcil  the  rnjiiiKitr  liiiii'." 

l)ufi'ii(liint  sought  ti>  set  iiside  a  (li-fiuilt  on  tlu' 
gi'i)\niil  lliiit  there  was  ud  notiee  of  tiiiil  iiichir.sed 
on  the  writ  of  sumiiioiis  iiltliough  tliere  wiis 
H  notice  to  iipj)eiu'. 

Ifi/il,  leveising  the  juilgnient  of  the  County 
Court  .Judge,  tiiiU  the  default  was  reguhir. 

Iliii"(  V.  ILrim^,  .")  It.  iV:  C.,  ."i,V2. 

43  Vict.  (ISSO),  c.  2  s.  09  -Cf.  .i»l  R.  S., 

c.  105,  8.91- 

(. Judge's  decision  in  County  Coiut  may  ))0 
apijealeil   from)  — 

//'Id,  tliat  under  this  section  tiu'  Supreme 
Court,  on  appeal,  liad  tiie  right  to  decide  ai)peals 
on  the  weight  of  evidence. 

Miirphij  V.  Homo,  •_'  W.  k  (;.,  17."). 

43  Vict.  (1880),  c.  2,  s.  100  and  103 

S.  KHi.  '■  ft'  Hii'  Jiidiji-  .sliiill  rr/iisi'  In  ijrmit 
such  ridi-.  or  nrdir  (i.e.  for  appeal),  und  the  pm't'i 
dfsiriiii/  to  iijipfol  nhidl  vithin  fir/ht  dKi/n  from 
thr  dii'i  on  vhirh  tlu'  di'dsiun.  jiidijmciit.  ror- 
dirt.  rnlc.  order,  or  rhnnji'.  or  rnJinij  uppi-ilrd 
froiii  slodl  hiirc  heen  miole,  or  KiirJi  ixti-iolid 
tiiiii'  thcri-fifter  ok  the  Koid  Jiuhji-  shull  in  liis  dis- 
rrition  olloir,  jili'  a  Imiid  tn  thf  other  purt'i  in 
sii^firient  aurcties.  in  siirh  riiiKonidilr  mnoiint 
OS  the  Judi/c  liioij  diri'Ct.  to  respond  thr  judij- 
rncnt  on  such  njipeol.  no  jndijmint  shall  he 
fntiri'd  up.  hut  II  rule  or  order  stidinij  the 
ohjeetions  or  i/rounds  of  nppo(d  shall  puss." 

■S.  lO.S.  "  Upon  such  appeal  heiu'i  perfected, 
and  the  hand,  inhere  a  hond  is  ijiren.  heimj  by 
hihi  approved,  the  Judi/e  sh'dl  certify  to  the 
Supireme  Court  iinder  his  hand  the  pleadinijs 
in  the  cause," 

Where  the  hond  given  was  merely  to  pay  the 

costs  of  appeal,  and  not  to  respond  the  juilgnicut 

on  appeal,  so  as  t(j  cover  costs  below,  on  motion 

to  dismiss  the  appeal  the  Court  ordered  a  new 

iiond  to  he  filed,  appellants  to  pay  the  costs  of 

the  motion. 

Taylor  v.  Gavin,  G  R.  &  (i.,  296. 


Per  McDonald,  C.  J.— 

The  "  apin-oval  of  the  Judije"  could  extend  only 
to  the  amount  to  be  secured  by  the  bond,  to  be 
fixed  by  him  as  re(|uired  in  s.    100,  or  at  most 


I  to  the  further  approval  (<f  the  sureties  nthri'il. 

'  It  is   no  i)art  of  his  functions  to  see  tii.it  iliu 

i  security    is   given   in   due    time,    or    tlmt    tin- 

'  bond  is  jiroperly  drawn  or  executed,  or  tli.il  ii 

'  embodies  the  recitals  and  j)rovisions  necessiiry  tn 

make  it  a  valid  seeuiity.     Until  ii  sutlici  iil  iiikI 

valid   bond   be  tiled,    the   .ludge   below    ciMiiut 

grant   the  certificate   required   by   the  .St;itiitc, 

and  without  that  certificate  the  Court  of  Aiijieal 

has  no  jurisdiction.     A  motion  to  set  asidf  tin 

appeal  on  the  grouiul  of  defects  in  the  Imnd.  cm 

pro|)eily  be  made  in  the  Supreme  Court,  althoiiL'li 

the   |)apers   have    been  certitied   and    the   IhhhI 

approved  by  the  County  Court  .Judije. 

j  W'arson  v.  Ifnoy,  .S  K.  ,!.  C..  i;i|. 

I     43Vlct.  (1880),C.  2,  s.  101- 

" //  shall  he  the  duly  of  i lie  ap/ellaiii  /r,  n,, 

I  that  uH  the  papers  and  doeiini'  nis  und>  r  /c-  fou. 

I  trol,  ntcessary  to  the   hrarlmj  of  the  appi  nl.  ',. 

'   fili'd  in  the  Coiiiily  Court  in  the  Connltj  n-hi  v  Ih 

'  eaiisi    tens  trial,  or  the  riili:,   ord'r,  or  dfi^iui, 

ijlvi  n,  and  Ihi  Cli  rl:  shall  immediately  rc(».s.  //(./» 

to  If   fled   in  the  Supn  m<    Court   In  Hrdinix-, 

1  The  Sujirimf  Court   may  ami  ml  the  onhrfnr 

j  appeal,  or  etrtiricao   of  appeal,  in  any  },iii-ii>'\h 

I  lars  irhivh  the  Justice  of  th<  ease  may  reijuin,  ur 

j  wift?/  return  thf  appeal  papers  to  Ihi-  Judiji  from 

'  lehom  sneh  apjual  is  niaih    for  amindmmi,  nn'l 

such  Jiidiji'  shall  Art'''  pon-ir  in  siifk  ewi  In  mnl:- 

any   "iieh   amenilnn n>,    and   to    ri-lranind>    'le 

/mpi  rs  to  thi  Supn  nil   Court.'' 

The  rule  for  appeal  should  be  certitied.  A|> 
peal  papers  sent  back  for  that  ])uri)ose. 

U'inchisin-  V.  Ilohlei ,  '_'  H.  .'v:  (..,  >v 

/'(.)•  Wcatherbe,  J.,— I  do  not  think  tlie  Ad 
allowing  amendments  was  intended  to  liivc  an 
IX  po^i  faelo  application. 

Moiton  1 1  al.  V.  liriiinan,  '1  R.  il'  (i..  MiJ 

43  Vict.  (18801,  c.  2,  s.  lOI-Cf.  5lli  R.  S.. 

c.  105,  8.96- 

(Appcal  niay  be  granted  by  County  Cmiit 
Judge  in  any  matter  tried  or  argued  liefme 
him)  — 

Appeal   allowed    from    decision    refusing   to 

amend  the  atiidavit  for  appeal  from  Magistrates' 

Courts. 

S(;t43Vlct.  (1880),C.2,s.;». 

Woodworth  v.  Innis,  6  R.  &  (i.,  •-'!•.■). 

43  Vict.  (1880),  c.  2,  s.  111- 

(Court  of  Appeal  in  Indigent  Debtor  matters)  - 

See  APPE.U,  IV 

43  Vict.  (1880),  c.  13,  s.  6- 

"  In  case,  at  the  end  of  said  session  any  caw" 
remain   vpon  the   docket   of  causes  tuttred  f "' 


1429  STATUTES.  NOVA  SCOTIA.  UHO 

ivVinnnil   llnrfnl,    iur/vilhi,/   th    rmi.i.s  ,  ,ih  ,■<</  44  Vll't.  (1881),  €.  1,  S.  t     (f.  4»  VICt.(lHS«i, 

(liiriii'j  ■idiil  SI  .iiimi  ir/iii'/i  linfi  not  Im  n  (iriiin.il  or  c.  25,  ».  1- 

Olhiririsi'ilisjioiiil  of,  n  tissinii  or  si'tiloni  o/ sal)/  "  Xo  jur^oii   shall  In    ilir/.iln  I'lmiirlllor  )'7io 

Court  shall  /ifxuh'nqui  iil/i/  III  III  af  /fall  fax  from  hohls  thi   ojliri   o/ Coinih/  Cluk,  Coiiii'i/    Tnni- 

linn  lo  limi' lii-Jwi  flu  in rl  rii/iilnr  sissloii  fhirmf,  un  r,  nr  Collir/or  of  Hal i^  >'/ 'iii,'/  khnl,  rnnl  if 

irhi  II  a  siijliflinf  tniniliir  of  Jiulijis  an  nrnilnhli'  ant/  snch  im-son   Im  iiomiiinlnl  j'rr  Ihi    ojliri   of 

fur  ^iirh  /iiir/io-ii,  ii-hi  n  Ihi  i-iinsis  rmirtininii  n/ion  Coiiiifillor   his  uomiiinlion    shall   In     roiil,   iinliss 

■mill  iloiki  I  shall  III   rnlliil  ami  ari/inil  or  olhi  r-  In  fori  Ihi  rxiiiration  of  Iht  linn  far  tiiakiiiii  siirh 

irisi   i/is/iosiil  of;  <(((•//  sission   or  sissions  to  In  vominalion  hi  risii/ns  siirh  ojh'n  so  hi  Id  liij  him. 

riilliil  III/  an;/  /onr  of  saiil  Jinli/is  as    hirn'nln.  Any  CoiinriHor  irlio  shall  am/il  an;/  siirh  ojlln 

I'v  II    /iroriiliil  for."  iiniliran;/  M  iiniii /ml  Coinn-il  shall  tin  rilnj  ranili 

I'ikIlt  ail  onlcr  ]nirslliilit    to  tlio  Aft  of   I8S0,  his  sml  as  sm-h  Coiini'illor,  :inil  /(/<  /iliin  shall  In 

|iicivicliiig    tliiit    a   sfs.siciii   slioulil    lie    lielil    for  sii/i/,lii,l  in  Ihi  sani,  wanm  r  as  if  h'  hinl  n siijiiiil 

"calling,   aigiiiiiL',  and  ilis|posing  of  tlic  causes  his  s,al." 

miiaining  on  the  ilocket."  A    Seerelary    to    School    Trustees  is  not   ills- 

//'/(/,  that  the  only   motion  that  eould  Ipe  en-  (|ualitie(l  liy  tiiis  secti'Ui. 

ti-itained,  except  motions  relating  localises  (jn  Huhlsn-nrih  v.   /.'»>«//,  4  li.  k<''.,  1^4. 
the  docket,   was  a  motion  for  admission  to  tlie 

Hu  44  Vlft.  (1881),  c.  1,  s.  18  and  «ft  - 

III  A'hnissini,  In  th.   liar,  •_'  H.  .V  ti.,  .'{(It);  .\FaUes  the  decisions  nf  the  Judge   ImIow  in 

•_  (  .  L.  l.,!Mi.  iiiiiniiii)al     election     trials     final.       (Ainendi'd, 
otli    l!ev.    Stats,   c.    '',,   sec.  !t.)     Sec.   (»!»  gives 

43  Vict.  (1880),  C.  20,  S.  26  -  apjieals  "  from  every  order  and  decision  of  the 

■•All  .suits  for  inih-hinitij  for  anij  ihimiKjr  r,r  .liidge."      (.\niended    .")tli    lU'v.    Stats,    c.    .^T, 

iiijm'i'  .vintahii'il  III/  riiisoii  of  the  railvnii  .vhull  •''cc.   tilt.) 

In    inxtililti'il  in'thili  .th-  luinilhs  licrtaftir  thi  !f''<'<  tl'^'t  the  latter  .section  must  prevail. 

ti nil  of  .siirh  siipjio.sriJ  (hiniai/c  .xii.ilaiiiid,  or  if  When    two   sections  of   an    Act   conflict,  the 

lliin-  III'  roiithiuiilion  of  ilinniiiir,  then  vithhi  latter  must  prevail. 

,v(/  moiitlis  ncyt  nftir  thi-  iloinij  or  i-onimittimj  M'lliiihn  v.  Morrison  ft  al.,  ~  R.  i<i  (;.,  00. 
sui'h  ilamaiji'  rcasix.  and  nut  nfli  rn'iirds." 

If'ld,    that     whether    or    m.l     this    .section  44  VICt.  (1881),  f.  45,  S.  1 - 

cnuld  hee.xten.led  to  include  acti<.ns  for  hivach  '•^'•t  to  amend  the  Act   to  incorporate  Town 

of  contract  in  I'e.specl  of  injuries  to  gooils  con-  of  \\  ind.sor)  — 

tiacted  to  be  carrie.l,  the  limitation  had  no  effect  •'^-  '  ■     disorderly  driving.  i)enalty  for.  &c. 

on  the  present  case,  in  which  the  l.reach  was  the  Contract  to  race  <m  street  in  contravention  of 

iR".'lect  to  provide  proper  appliances,  or  to  use  ''''»  section  unenforceahle. 

pnipir  care,  in  the  hainlling  of  luoperty  intended  '  W-*-"*-^"*  '• 

...  he  placed  on  the  company's  ear.s.  ^.  ^.,^,^  ^^            ^         ^^  ^^     ^^^  .„,  ^    ^^^  ^ 

Whitman  v.   1  hi    Ihsti-rn  Conntn-s  I! y.  Co.,       104   O   T  TX   R  17 

')  R.  .\:  (i.,  40.').        ,  '     ■..'",  ^      „ 

((  onnmssioner  s  power  to  allow  cfrfiorari) — 

A  writ  of  nrtiorari  was  allowed  by  af'ommis- 

43  Vict.  (lS80l,  C.  20,  S.  70  and   «8-(l{all-    sioner,  Imt  it  was  not  shown  that  there  was  no 

way  Act)  .Supreme  or  County  Court  dudge  in  the  County. 

(Cattle  at  large  on  highway  killed  l)y  passing        Hi  id,  that  the  writ  must   lie  .set  aside,  as  it 

tiiiiu) —  was  not  shown  that  the  Commissioner  had  juris- 

'S''(  KAIL^f  AYS,  1-.    diction  to  issue  it. 

:      /''*•  McDonahl,  C.  J.  and  Weatherhe,  J.,  that 
43  \  let.  (1880),  C.  22,  S.  2—  [  the  indorsement,  "  allowed,  security  having  ))eeii 

".!//  thi  h;/i -lairs  and  ordinaiins  of  tin   City    first  given  and  filed,"  was  not  sufficient. 

of  Ifali/ax,  a/iprorid  li;/  thi  florirnor  in  Coiiiiril  Corlult  v.  O'lhll,  4  R.  &  ••.,  144. 

j'fi  rioiis  to  thi:  jiassini/  of  this  Art,  nrr   hi^rili;/ 

raiifiil  ami  i-onfirm'd."  j      45  VICt.  (1882),  f.  25,  8.  19— 

"This  section  cannot  he  held  to  have  a  retro-  I      Penalty  or  forfeiture  imposed  hy  chapter  81 

active   effect,  so  as  to  confer  jurisdiction  upon    of  Acts  of  1804,  or  by  any  ordinance  of  the  City 

'lie  Police  Court  to  entertain  a  suit  over  which    Council,  may  be  recovered  in  the  name  of  the 

it  had  no  jurisdiction  when  the  suit  was  insti-  i  City  of  Halifax  before  the  Stipendiary  at  the 

fiited.  I  Police  Court. 

Th(  City  of  Halifax  v.  0'CoH«or,3R.  &(i.,  190.  i     The  City  of  Halifax  v.  Broim,  6  R.  &  (i.,  W.i. 


U31 


STATUTES,  NOVA  SCOTIA. 


14:{2 


46  Vict.  (IH83S  C.  11,  ».  l-5lh  R.  8.,  C  02,        //'/''.  '''"•'«  '•'>'•'  "f  '•'«  I'n.vinuml  LegiHlaturo 
^^  4  _  uiiiUt  sec.  Hi',  sulisi'o.  !»  of  tlif  1{.  N.  A.  Act. 

"  E,;ry  Ml  of  ml>  or  .halld  morl;,w,e  of  prr-    The  City  of  /Mi/ax-  v.   inMu-n  .|.s.»m».v  To,, 
.■<oiial  />ni/iirfy,  olfur   than  mortijiuii s  to  .vciire',  "  '^'  'v<..,  .Is,. 

fuhtrf  adrnncfJi,   of   mnrliini/fn  for  leruriuij  thr.  \ 

mnrtiiwifi  winiint  lh<  iinlnrs,  iii<  iit  of  any  hi/lx  or  48  VICt.  (1885),  C.  28  — 
/iroiiii.'nory  iioh  x,  or  nihi  r  linliility  iwnrrnl  for  (,\ii  Act  to  eimlile  tlie  (Jovi'i'iiiiiciil  nf  N'nvii 
ih>  morfi/ni/rir,  shall  hnaflir  I"  wfompaiiiid  Inj  Sciitia  toiiiiproju'iiitel.iiiils  for  ])ul)lii;  |)iii|MiNf.j)  — 
an  nllhlaril  of  I  hi  /larly  iiiriii'i  Ihr  sniiii,  or  Am  />,,■  /{itrhii ,  ./.  -C'liupti'V  '2'.\  of  the  Ails  «i 
ai/cHt  or  ntformy  iliily  aiilhoriznl  in  Ih'it  hilinlf,  1S85,  wliicli  wiih  ])as«fil  nftor  tlii«  ivitioii  h;is 
ih'it  ihi  nmoiiiif  sii  forth  thin  in  at  luimj  th  I'on-  coniiiu'iiceil,  is  not  iiiikU'  rotroHpeutivo,  iiml  ilncrt 
siili  ration  thin  of,  irai  or  m  )u*ily  and  honistiy  not  in  my  opinion  ii])ply. 
dm  and  owimj  hy  the  ijranlor  to  the.  ijrnntt'f,  and  Kiarmy  v.  Dirkson  ft  ul.,  'id  \.  S.  H., 

that  thf  lilllof.i'ili  orrhattil  mortiimji  n-a-^txinitid  \ 
in  ijood  faith  and  notforthi  /mriiosi  of  protn-tinij  \ 
lh<:  /irojiirty  mrntionnl  Ihinia  wjain-'t  thi  rndi- 
tors  of  till  i/rantor  or  mortijai/or,  or  of  jm  n  ntinij 
till   rredilori  of  inch  grantor  or  mortijaijor  from 
olitainin;/  jiaymi nt  ofanyrlalm-'*  aiKilnut  him.' 


4S  Vict.  (18S5),  c.  35,  8.  1- 

(An  Act  to  iinienil  tliii])ttr  \'2  of  the  Actscif 
IH.S4,   "Of  the  .Sfpiiriite  I'loptTly  ami  Hi^'lit.- cf 


The  iiHitlavit  attached  to  a  liill  of  sale,  muler  Properly  of  Marrieil  Women) - 
whiclj  plaintiff  claimed  the  return  of  cert<iin  ,  •' 7'/,,  Snimmr  Court  "hall  han'  jiomr,  irlmi 
cattle  taken  hy  the  ShcrifT  under  execution,  ptn'- ,  „„y  marriniji  shall  han  Imn  du-laml  null  nml 
Iiorteil  to  he  sworn  hefore  a  .lustice  of  the  I'eace  ,-oiil^  or  ihall  hare  Iiku  dissoind  hy  thi  Court  for 
and  was  signed  hy  the  .Justice,  hut  not  hy  the  i  J)!,-orr(>  and  Matrimonial  Causis,  to  altn\  i-nnj 
grantor.  Tlie  hill  of  sale  having  hcen  executed  or  srt  aside,  any  nnti-nu/itial  or  jiost-nui'il'il 
under  the  Acts  of  18S.S,  sitthvvnt  or  srtflimnit.t  niadr  liy  and  hitmni  iln 

Ifild,  that  it  was  not  avoiiled  hy  reason  "f  p,trii,s  whosr  man-iaiji  shall  han  hti  n  so  ih  chin  it 
defects  in  the  atiidavitoi' hy  want  of  an  atlidavit.     „,^/  nud  raid,  or  dissoind,   as   afonsaid,  nml 

S'loi-omh  V.  .l/o»N' , '20  X.  .S.  R.,  (S  R.  &(!.), 60.    shall  hare  the.  same  poirers,  irllh  rifrenreto  ih' 

apiilicafion  of  thi    n-hoh   or  any  portion  of  ih 

This  section  now  appears  in  M\  Rev.  Stats,  propirty  disposid  of  hy  surh  s,iil,ni<iit  ors,iih- 
cap.  9'2,  sec.  4,  with  the  addition  of  the  following  ments,  as  the  respirtire  parties  tlureto  had  at  th 
words;  "otherwise  such  hill  of  sale  or  chattel  /('mc  of  the.  exemtion  of  surh  settknuul  or  s,ith. 
mortgage  shall  he  null  an.l  void  as  against  the  '  ments,  and  the  Court,  on  exircisinu  surh  pinrirs 
creditors  of  the  grantor  or  mortgagor."  xhall  hare  rnjard  to  the  eouduet  of  fin  parti.  -  lo 

Hi  Id,  that  the  wor.ls  of  sec.  1,  cap.  11,  Acts  ,  .si/r/i  marrimje,  and  may  exelude,  in  n-lwh  or  In 
ISS.S,  were  merely  directory.  Also,  uiat  even  if  |  part,  from  any  henejil  under  surh  setthmnif,  nun 
the  hill  of  sale,  upon  which  the  defendant  relied,  party  who  shall  hare  hn  n  found  i/nilty  ofadnh.  rij 
was  fraudulent,  that  would  he  of  no  avail  to  the  /'(/  the  deeree  or  sentence  of  the  Court  for  Dimn,- 
])laintiff,  who  was  a  purchaser,  he  not  being  a  ,  and  Matrimonial  Causes." 


creditor. 


Mcliriih  V.   Ward,  7  R.  &  C..,  11.5. 


46  Vict.  (1883),  C.  28,  s.  23- 

(An  Act  to  amend  c.  81,  of  the  Acts  of  18(54,  , 
entitled  "An  Act  concerning  the  City  of  I 
Halifax,    and   the   Acts   in    amendment  there-  j 

of  ••)-  I 

.Section  2."?  provided  that,  in  the  case  of  insur- 
ance companies  doing   business  in   the   City  of 
Halifax,  the  property  ot  the  companies  within 
the  City  should  be  liable  to  assessment  in  the 
same  way  as  the  property  of  other  ratepayers, 
and  also,  that  every   such   company   should  in  •■ 
additon  thereto,  pay  an  annual  license  fee,  and  ' 
that,  when  any  company  was  engaged  in  more 
than   one  branch  of  business,   it   should  pay  a  j 
license  fee  for  each  branch  of  its  business. 


Ste  HISB.iND  AND  WIFE,  -' 
49  Vict.  (1886),  c.  3-(LI(iuor  License  Act 

of  1886)  - 

No  ai)peal  from  County  Court  to  the  Supreme 
Court  in  prosecutions  under  the  Act. 

See  APPE.AL,  V.,-21. 

But  see  52  Vict.   (1889),  c.   17,   s.   1."),   which 
gives  such  an  appeal. 

49VICt.  (1886),  c.  34,s.9- 
"  Jn  all  actions  an  appeal  shall  lie  to  Ik 
Supreme  Court  sittiny  in  hanco  (from  the 
County  Court)  .  .  .  The  appeal  shall  he  l»j 
notice  of  motion  .  .  .  The  notice  sluiU  he 
served  icithin  ten  days  from  the  time  ichcn  (he 


1418 


STATUTES,  NOVA  SCOTIA. 


14.'H 


iHt  K.  8m  ('.  U'i,  N.  *i    (f.  'lilt  K.  S.,  r.  4.1, 


piili/iiiiiit.  mil',  urihr  nr  ilii'isiun  irns  jirn 
iKiiiiifiil  or  iniiilr.  i>r  /rum  tlir  liini'  ifln  n  Ih^ 
til^liiUnnl  jb'st  hud  Hiilicc  thifiiif    .     .     ."  (Mmlu   of    liiyiiii;   iMit    new    or   iiltLTiiin    i<\<\ 

WliDii   tho  iiolicu  wild   not  given    uitliiii  ifii    roail.H)  — 
(lii,v^  iifli'i' judgliu'iit,  tlii'  ii|)|K'iil   Uiis*  clisMiisNi.'il,        Till!  ('imiiiii.sMininTs  iiiid   SussioMs  liumiit   hiy 
hut,  iiiiisiiniL-li  lis  tliL'if  was  cUlay  in  moving  in    nut   a   rnul    sulpstantiaily  dilluivnt    fmni    that 
(lisiuiHw,  without  costs.  |)i'tition('il  for  hy  tliu  fiveliohleri*. 

/•■/■'(>«(•  V.  .]/,L,()il,  '2*>  \.  .S.  H.,  (H  II.  \  (i.),  7(1.  t^hiiiii  V.  Chii.iiKii,  It  a/.,  •_'  Thoiii.,  Ifiit. 


I»  Vict.  (IHMM,  c.  .»«- 

(An  Act  concerning  the  collection  of  fi eight 
iiiiil  wliai'fagc  and  warchou.su  charges)  — 

I'll-  'rowiishcnil,  .r.,  in  juilgnient  appealed 
tiiiMi  and  revcrseil  on  appeal,  on  another  ground, 
however:  "It  seems  \ery  clear  that  the  Act 
(iHStJ,  c.  .')(!),  wa.s  nitru  rin^  the  )Mnver  of  the 
[.Ileal  Legislature,  as  directly  legislating  on 
matters  within  the  exclusive  coiitiol  of  the 
linMiinion  Parliament.  Independently  of  this, 
the  Act  was  disallowed  ))y  the  Dominion  (lovern- 
imnt  on  the  iVird  April,  ISST." 

Thi  Eaifini  l)i  n  /ojiiiii  lit  Cn.  v.  MfKmj, 

•_'()  X.  S.  K.,  (S  K.  &  (i.),  p.  ;w<). 

Kcv.  Stals.,  1st  scries,  lainc  Into  rorce 
.Sept.  1st,  1H.11. 

1st  R.  8.,  c.  22,  8.  2H- 

^'Ap/H'tila  from  the  declsiou  of  the  Justices  for 
(1111/  pintal/i/  or  forfviturv  hiciirri'd  under  this 
ihiijiter  !i/iidl  be  (jranlcil  in  the  siinie  iniiiiiier  os 
Under  the  vhnplev  res^iectinij  suinniiiri/  triuh 
Iwfurs  ■/usfues  of  the  Peace  ;  hut  hefure  a  iieir 
(riid  shall  be  i/ranted  the  appellant  shall  show  hi/ 
(ijfi'larit  some  error  in  the  proceedini/s  hrlmr 
either  in  lair  or  in  fact,  and  a/ioa  his  failure  so 
III  do  the  Court  shall  conjirni  the  Jiuhjment  with 
cufis  ;  and  in  case  of  i/rantin;/  such  neir  trial  the 
Cmirt  nan/  ini/iose  such  terms  on  either  /xnti/  as 
mint  best  /tromute  the  ends  of  justice." 

Ihlil,  where  one  of  the  Magistrates  hefore 
whom  a  cause  was  tried  stated  that  all  the  paper.s 
necessary  for  perfecting  the  ap|)eal  were  tiled, 
acce|)ted  the  liond,  telling  the  party  it  was  nil 
right,  that  the  appeal  should  he  alloweil,  though 
11(1  afhdavit  had  l)cen  filed. 

McKay  v,  McKay,  -J  'I'honi.,  7.'). 

IstK.  S.,  C.  02-  I 

When  the  (ieneral  Sessions  confirmed  thei)ro-  • 
cccdings  to  establish  a  pent  way  which  had  been 
iliily  laid  out,  held,  that  before  such  way  could  ! 
k'  used  the  proprietor  of  the  land  through  which  ' 
it  runs  must    be   paid  the  damage  awarded  to 
him  by  the  jury  who  had  assessed  the  same. 

Cameron  v.  McLtan,  '1  Thorn.,  329.  i 


I  Three  MagLstrates,  forming  a  part  of  the 
Court  of  .Sessions,  l)y  whom  the  return  of  a  pic- 
cept  issued  under  1st  lie  v.  Stats,  cap.  ti'J,  for 
laying  out  a  road  is  to  be  deciiled,  are  not  the 
three  disinterested  freeholders  contemplated  liy 
liiat   .Act. 

l^'mni  V.  Chi/iniaii, 'l'\'\\i>u\., '2\^'l. 


1st  K.  S.,  c.  80 -Cf.  .Itli  R.  8.,  c.  3.1 -(Of  the 

settlement  and  support  of  the  poor)  — 

Overseers  of  the  poor  are  not  liable  for  money 
due  liy  their  predecessors  in  ollicc. 

/'</■  Desl'.arres,  .1.— It  is  oidy  necessary  to 
consider  what  are  the  ordinary  incidents  of  a 
corporation,  to  see  that  ()ver.seers  of  the  Poor 
have  not,  and  were  not  intended  by  the  Legisla- 
ture to  have,  any  corporate  privileges,  except 
for  the  limited  and  special  ol)ject  expressed  in 
the  law .  They  have  no  corporate  name  by  which 
they  can  sue  and  be  sueil,  nor  can  they  j)urchase 
and  liohl  lands  and  chattels  ;  they  have  no  com- 
mon seal,  nor  can  they  make  liyedaws  for  their 
own  goverinnont,  and  it  will  not  surely  be  pre- 
tendeil  that  they  have  (leipetual  succession, 
without  which  they  cannot  be  a  corjiorate  Iwidy. 
They  have  not  in  fact,  any  one  of  the  incidents 
essential  to  a  corporation,  and  cannot  sue  or  be 
sued  for  or  in  respect  of  any  contracts  or  oliliga- 
lions  but  their  own. 

nnrrit  <t  al.  v.  Hatliild  it  «/.,  •_>  Thom.,  Kil. 


1st  R.  S.,  c.  Si),  s.  (I 

Sessions  made  final)  — 


(Decisions  of  the 
V  '  CERTIORARI,  .Ss. 


1st  R.  S.,  c.  11.1,  s.  Ift-Cf.  5th  R.  S.,  c.  00, 

».  18- 

".■!//  such  estate,  reid  and  /lersonal,  as  is  not 
devised  in  a  will,  shall  be  distributed  as  if  the 
testator  had  died  intestate." 

Per  Hliss,  .1.— The  effect  of  this  clause  is  to 
give  to  the  Court  of  Probate  that  jurisiliction 
over  any  undevised  portion  of  the  estate,  which 
it  has  where  there  is  an  intestacy  as  to  the 
whole  estate,  and  to  prevent  the  necessity  of 
resorting  to  a  Court  of  E([uity  to  obtain  a  dis- 
tribution in  such  case,  where  the  only  necessity 
before    for    resorting   to   it    sprung    from    the 


l+.'^'>  STATUTES.  NOVA  SCOTIA. 


I4;j() 


■  Incli  iiif  that   llio  i'\icilt..r  Kink   thi.s  |■t•^ill^lu  a«         Ist  R,  8,^  f,  im,  ^,  >i\  fl  ,||,_ 

'""  '^'  ;■    /•,,/      ,•  1/   /.       ;/     I         ..    i.).|         <'(»iiiiKfl  «»•,'//„/('/'< -|!y    liiv.   Stills.  ,,i|i.    1,(1 


M.  •_'!,  I'xoi'iitiini  ix  til  isMiii'  ajiaiiist  tlic  ^j 


ut  K.  s.,  €.  I'ii,  s.  \  IT.  .itii  K.  s.,  c.  »i,  ;!':";:''^'.;;;;' '"'';""  ;';r"' "'-"'":'  "■*■  '"■''>■ 

„  liy  'III'  '-Mtli  .ti'ftuiii  (it  tliu  ttuMiu  tlio  foii.-talili' 

"..V         ,       ,  .      ,1        Is-  I    ..•     ji  i'* 'liii'i-'tL'il  to  tuku  Niitlii'ioiit  l'ooiIn  t(i  Natisfv  ilii. 

■'  ^o  luii/iacf  for  tin:  Kiilv  of  iiiii/ i/otx/s  for  t/ii'  .  ,   ,  •         ._   ,  • 

...  ;  I  '  ]    II  1  I  •-•xfcutidii,  and  liy  Mi'ctiou  •_'/   for  want  nf  .mkIi 

/*/•/(•(•  of  /ill  iiiniiiils  or  Hiiiviirdii  s/uill  lie  i/ooil,  ,     ,     .  ■       ,      ,     

.  ,;     /  <         ,     ^  ,1  1      '     II  fe"""l«  I"' I-*  ti)  takitthf  lidilv.      IliiTu  is  nil  IV • 

,      ,      ,,  ■     .,  ■   '         ,;  •      ■  i'i'I>tiiin  in  till'  All  lit  any  kiinl  ot  ukoiI.s,     T|,,. 

iiKil  (i<nicil/i/  riri'irr  t/ii' Mdiiicor yivi'Hoiiiit/iiiiif  III  .  .  ,  ,     ,  o      •  •      i  m 

,,,'■;,,;  ...  ■  l'.\<-l|lt|ll|l    Willi    ll'.'<|H'<.l    to   tllO   lllHt  COW  <ll(.ll|>l    ill 

fiuiiiHl  to  liiiiil  lliv  liariiiitn  or  III  iiiirt  of  iiiiiiiitiiit,  ,      ,  ,  ,',       ,.  ,  ,  n     m 

,,   ,  ,  ■  ,         .  .;.         .  iHt  l!fv.  .stilt.-*.,  o.  I;t4,  wliR'li  icL'iiIatf.s  ijic  iilia.i. 

()/•  tliiit  goiiiv  note  ur  iiieiiioriiiiilum  in  irrittiiii  oj  .  .  ■        ,   ,      ,  ' 

,,     ,  -I.         I         1     ■       I  I      ,1  .'■     i  ingsaml  piiiclicfut  tlK'Siiliiciiiu  (  (iiiit.aii.l  ill  hi 

Uiv  Imriiiiin  It  iiii'de  iiiul  nufneil  In/  tin'  /iiirfiin  to  ..?  ■       ,  .  ,  I     ,      . 

,        I    '       1  I  I         ,    '  ,         'i      ..    ■  ,  >  ift.  wip.  4,  wliii;li  rt'iifalH  till'  tormcr  Siatiilf. 

/;('  vhiinii'il  III/  siir/i  colli ruit,  or  In/  t/.iir  iii/viiU  „„     ,       ,  .        ,       ,, 

,,  ;;;■)•.  '  1  lie  IliNfiivfiit  All,  l.sl   Rev.  Stilts.,  1.'.  I.'JT n- 

tlivrvuitlo  iia'lwriziil.  .  .         .,,.,,,,, 

.         ,    ,  .   ,    .  .         1    1.    .1    .  taiiiH  no  e.xcfiitioii  of  the  kiinl.     If  I  loii-foii.  tin. 

A  vei'ltiil  agri'uiiR'iit  liftwefii  A.  iiinl   II.  that  i  i  i         i 

,,,,,.,  ,    •  ..ill.  '-'"^^'  "-'""hi  not  liu  taki'ii  on  I'Nt'Liition,  the  nwiur 

15,   shall   take   a  net  in  pnyinciit   oi  hi.s   dtlit,  ,,  ,       ,       ,   .      .  .,  ,      ,        ' 

,  ,        1    •   .      1    1  .-1  .  1      .1  eoiild  lie  iiliifi'il  III  jail;  and  w hen  liu  ciiine  t.p 

.ilthoiiL'li   intended  a.s  a  tinal  aL'ivfiiifiit   liy  tiie        ,        ,     f        „      -    ,      .       . 

...         .  .,•  •     .  !■  -.1    .1  'iil^e  the  heneht  (if  the  Insulvent  Act  ho  wipiiLI 

iiarlies,  is  not  u  .siithcient  i'oni|)|iain.e  with  the  ,  ,,    ,  .         ,,     ,  . 

,,,,..         ,.      .,  ,     .     I.  ''<-'  eoiiiiK'lled  to  assign  all  t he  jjoods  spi'L'itiiil  in 

statute  of  rniuds  to  tninster  the  iiidpuity  to  I!.      ,         ,     ,   ,         ....  *  ' 

,,    ,,       .  ,.1,1  ,„,  the  .seheilnle  to  hi.s  pftitioii. 

McKi.iiin:  V.  /io'/»(V.«ti«,  James,  ".'.U.         ,,      ,,,.        ,       ,  ' 

J'lr  IsIkss,  ■).  — Jt  was  never  intended  that  .m 

The  coiitiiiet  is  sutiicieiitly  anthenticated  if  it  exeeution  of  ii  .Magistrate  should  hiivu  gifaiir 

has  lieeii  recogni/cd  in  writing  by  the  party  sued  foreu  than  that  issued  out  of  this  Court,     As  to 

iilioii  it.     It  is  no  (ilijection  to  the  niiiinleiiance  the  olijcction  lelative  to  tin;  jirisonur's  sclu'ijiilf 

of  tiie  action  that  the  ilefendunt  liiinself  i.aniiot  under  the    Insolvtnt   Aet,  that  winild   ei|iialiy 

enforce  the  same  contract  against  the  plaintill'  »Pl>ly   to   an   u.xeentioii  out  of  this  I'mnt.    A 

liccause  the  plaiiititl' has  never  signeil  it.  prisoner  cannot  lie  eoiiipelled  to  assign  his  lii.st 

J'ojii.  V.   TIa  J'irlva  Shaiiilioat  Co.,  cow,  for   that   would   lie  to  deprive  him  liy  mi 

■J  Old.,  p.  i'.i.  indirect  way  of  that  which  the  Legislature  will 

not  allow  to  lie  taken  directly  from  him. 

1st   R.    S.,   C.    130,    S.  50 -tf.  oth  K.  S.,         /'"•  Wilkins,  ,J.-If  the  greater  Court  caimot 

c.  100    s.  19 take  the  cow  neither  can  the  lesser  ;  for  uimii. 

"  //■  (//)//  real  or  personal  estate  of  the  deveaml  ^  "'"!/"•••  ''O"''"' '  '"  ■•"-  ""'""-■■ 
s/iall  come  to  the  possession  or  kiioirleih/e  of  the  i  MeLmn  v.   Watson  iJ  nl.,  L'  'riioiu.,  40(i. 

r.vecutvr  or  administrator  after   he  shall  hiire 

filed  such  inventorif,  he  shall  within  a  reasonable        ■^^^  |{^  g^    f^  |3;{   gjj^  jq  jjm|  jj 

time  thereafter  Jile   in  the   lieyistrars   ojfice  a 

further  inventor;/  of  the  same,  upon  oath:'  '^' '  STATUTES,  IMPEKI.U,  23  IICII.  «,  C.  9, 

I'lr  Wilkins,  J.— This   obviously  relates  to 

property  of  the  deceased  coming  to  the  posses-  I      j^t  H    S      C    134    S   01 

sion  or  knowledge  of  the  executor  or  adminis- 
trator sulisenueiitly  to   his  e.xhiliiting   the  tir.st 


"  So  new  trial  shall  be  i/rnnted  on  account  of 

,  .  ,     ,  .  evidence  haviiii/  been  imnrotierli/  received  on  aw/ 

inventory,    which    his  cfjiivictions   recogiiue  as  ..,....,•.    ,         '     '.  .,      .,       ,   .,        , 

.,.,,,  trad,  ij  III  the  nulamcnt  of  tlie  Court  there  be 

inilisiiutalily  such.  .,  .,  ,,.■.     .,         .    •    .,  ,..., 

,.„  *    ,,,...,  ,         ,  .  other  evulence sumcieiii  to  sustain  the  cerdut 

Ihe  .Judge  ot    Probate   has  the  power,  utter        „,,  .  "^    .         ,         ...  ,  .  , 

.,  1     r  .         1  lliis  wasat  one  time  theiirniciple  updii  whicli 

hearinL' evidence  on  tlie  tacts,  to  order  an  execu-  ,      „  ,         ,     ,  ,  , 

...  .    •     1    1    •    .1     •  ;  the  Courts  acted  and  the  very  laiigaiige  of  our 

tor  or  administrator  to  include  in  the  inventory,  ,  ,  ,    .  ,  ^   ,.      ..  ,  i 

,.  ,  ,       ^.  ,       ,  .       ,,       .,  Act   seems   borroweii  trom  that   ot   Mansheld, 

as  propei'tv  of  deceased,  articles  elaimed  by  other  ,,    ^      ,,     .     ,        ,„■,         ,  „. 

.        .,  \  ,  .  •      .1  \  C.  J.,  Hirjord  v.   II  dton,  1  Jaunt.,  14. 

pa:  lies,  but  he  cannot  recjuire  the  executor  or  >        ^ 

administrator  to   swear   to   an   inventory    thus 

amended  by  his  order. 

Before  the  costs  of  the  proceedings  on  citation 

to  render  an  account  can  be  allowed  against  an  I      1st  K.  8.,  C.  134,  8.  63— IT.  5th  K.  8.,  C.  104, 

administrator  personally,  the  notice  reijuired  by    Appendix,  N.,  page  1143 — 

section  10,  chapter  I'i,  of  Acts  of  1853,  must  be  '      "  If  the  plaintiff  in  any  action  of  trespass,  or 

given,  and  he  must  appear  from  the  evidence  to  i  trespass  on  the  case  other  than  assumpsit,  shall 

have  acted  fraudulently.  recover  less  damages  than  forty  shillings  on  the 

In  re  Ettate  o/L'aUton,  2  Thorn.,  195.  |  trial  of  any  issue,  or  an  inquiry  or  default,  he 


Johnilone  v,  Brtiinn,  Jamea,  14; 
liu-isfll  V.  Marshall,  James,  .SSO. 


li'n  STATUTES,  NUVA  SCOTIA.  IWS 

"li'"    ""'   ''' v.T  liny  loxtM.  unli'HM  thu  .lu.lge  ^/«,jt,'  i/u<.i(tiv(l  to  «,-n;,  ,i»  i/rnwl  Jtirorit,    t/ifir 

K.I..if  whc.iii  tlu^  iHMiie  U  liif.l  »|iall  at  llic  trial  pl(„rg  of  rvtiihiHt;   iraiifi,   cdlliiiys  or  nn/ilui/- 

..titit'y  oil  llif  l)aok   of  tliu  JNHiif  roll  that  tliu  iiieiilK,  iiiid  irhvllifv  senior  or  /iiiiiur,  or  l.if  ,i„i/ 

notion   wiw  lii'ouglil  to  try  a  ii«lit.  liesi.luH  i\w  otinr  ajiiiMitiim  hi)  ivhirh  thiii  moi/  he  usiuiliif 

ihfif  light  to  rucoviT  ila.imgi'M  tor  tliu  tifspa»s  (•(///(■(/  or  known." 

1.1' i^riiiviiiK'.^  for  which  tlio  action  wuh  l.roiight,  S.  :{|.     ••  The  Court  or  /iretidin;/  Jnilije  mnij 

nr  that  till)  tivM|iaH8  or  grievance  for  which  the  amend  the  liii/»  o/  Jurors  by  gtrikinij  out  the 

viiiif  was  hioiighi  wa»  wilful  ami  nialicions  ;  l.iit  wimet  of  /lemonH  not  linhle  to  nerve,  or  insertin;/ 

iinthilig   ill    thiH  section   Khali    lie    coiiHtruc.l   to  the  trite  name  (n-  aili/ilion  of  (in;/  person  therein 

.li'|.iive  any  iihiintitl'  of  coxtx  in  iiny  aitioii  for  a  im/nv/itrli/  i/enii/noled  or  descriheit,  or  hi/  mliliny 

trespass  on  any  lands,  or  for  entering  into  any  the  name  of  any  qiuiUjiiu  person  hroiti/ht  to  their 

tiiieinent,  in  rt'siiuct  of  which  any  notice  not  to  kiioirleilye,  and  the    I'rothnnolnry  shnll  keep   a 

tiespass    tliereon    shall    have    heen    previously  meinorandum  of  all  siieh  on,en,linent»,,ind  annu- 

served  on  or  left  at  tile  last  place  of  aliode  of  all;/  return  the  same  to  the  Clerk  of  the  I'eaee  to 

the  defendant,  hy  or  on  l.ehalf  of  tlie  owner  or  be  laid  before  the  revisimj  Justiees.'' 

'"^yi'I"*-''"'  Tlie  omission  of  the  residences  and  occupations 

The  grunting  of  a  certificate  thai  an  action  of  „f  grand  jurors  in  the  list  and  in  the  panel  liel.l 

trespass  was  hrougiit  to  try  a  right  so  an  to  en-  sullicient  groundH  for  <iuaHliing  iin  indictment  for 

title  the  plaintiti'  to  costs,  is  a  matter  for  the  felony. 

■  liscretion  of  the  preniding  Judge,  with  which  V"""  v.  Ihhjia,  .James,  l.'-.'!)  ; 

tlie  Court  will  not  interfere.  V"""  v.  Murphy  ii  al.,  .lames,  1,")8. 

Mi'HUirary  v.  Jlclmm;  .James,  l.V).  .,        ,       n.,,..    ,. 

ht  It.  8.,  c.  I;{4,  s.  102- tr.  .itli  R.  S.,  c.  l8t  R.  8.,  c.  130,  s.  1- 

104,  O.  XL..  R.  40  -  y„  sLiTlTES,  IMPERI.iL- 

••  The  necessary  iveaniiy  apparel  and  heddiny 

uf  the  debtor  and  of  his  family,  and  the  tools  or  '"^"*  ^'  *''  '• 

Mlruments  of  his  trade  or  calliny,  ami  his  last  t^t   u    a     ^    tt4       ,.• 

^a,r  shall  be  exempted  f,om  e.iecntiou.-  ^  ''f   "l  f\^-  "*  -  '-^"^^'''t  ""^  Absconding 

'  Debtor.s  Act)  - 

S"  1st  R.  8.,  ('.  131,  S.  21.        /',,•  Hai:ilmrton,  C.  .J. -An  attachment  .loes 

not    bind    property    upon    mere    delivery    to   a 
1st  R.  S.,  C.  133,  8.  11—  .Sheritf,  as  i>,n  execution  does.     Jn  the  tirst  case 

"So  person  shall  he  an  incompetent  witness  l.y  I  evei  decided  I  was  of  opinion  that  where  there 
reason  of  incapacity  from  crime  or  from  interest,  were  two  concurrent  writs  of  attachment,  uuo 
t;.\cept  a  party  indivi.lually  named  as  such  on  from  the  .Supreme  and  the  other  from  the  Infe- 
the  record,  or  the  lessor  of  the  pluintitr  or  tenant  rior  Court,  the  rirst  levie.l  under  would  hind  the 
.It  the  premises  sought  to  he  recovered  in  eject-  property.  In  that  case  the  Court  were  divided, 
meiit.  or  the  landlord  or  other  person  in  whose  l,„t  I  am  clearly  of  opinion  that  a  writ  (if  attach- 
light  any  defendant  in  replevin  may  make  nient  does  not  hind  property  until  a  levy  is  nia.le. 
logmzance,  or  any  person  in  whose  iimne.liate  |  Crti.jhton  tt  at.  v.  Danieh,  James,  .S04.. 

.111(1  individual  behalf  any  action  may  he  brought  i 

..r  defen.led,  or  the  husband  or  wife  of  such  ^'"'  ^^^^^^'  J.-Tlie  words  of  the  Act  aro 
persons  respectively;  but  any  defendant  in  a  " '^'^'*^'"n<l'"fc'  <"'  'i'«^'»t  ""t  of  the  Province." 
cause  pending  in  the  Court  of  Clian<;ery  may  he  *^'^'  ""I"i-'s«'<"i  '»  that  absconding,  without 
examined  as  a  witness  on  behalf  of  the  plaintiff  ''''**^''"-''-'  f'"'"  '■'"  I'lovince,  would  be  sullicient 
or  of  any  eo-defendanl  in  the  cause,  saving  just  '"  ''"''^'""  ""  ^"''"^  '  ''""^  ""''•  '^''«L''"'i'ii'g  "i"st  be 
exceptions."  clearly  shown. 

A  party  directly  interested  in  a  defence,  who  Stapk'<  a  at.  v.  Taylor,  James,  .320. 

lias  indeninitied  the  defendant  on  the  record  and    'i''e'=,  aUo,  ABSENT  OR  ABSCONDING  DEBTOR^ 
who  slates   that   the   suit   is  defended   on   his  | 
iiulividual  behalf,  is  incompetent  as  a  witness  I      1st  R.  S.,  C.  141,  S8.  2  and  3- 

umler  this  Act.  '      u   .i      .I'/v  ,  /   ■      .<•  i 

T  ,     ,  „  ,  .S.  2.     "  7  he  party  apply  my  for  such  wrtt  (i.  e. 

Johnstone  v.  lireuan,  James,  14.    „f  attachment)  shall  make  an  affidavit  in  the  usual 

form  for  holdiny  a  party  to  had." 
1st  R.  S.,  C.  136,  SS.  7  and  31-Cf.  oth  R.  8.,       «.  3.     "  The  sum  set  out  in  the  affidamt  shall 
c.  106,  SS.  15  and  54—  he  indorsed  on  the  icrit  in  ivords  at  length,  and 

^.  7.  "  The  list  of  grand  furors  shall  contain  shall  be  signed  by  (he  person  before  ivhom  the- 
nil  the  Christian  names  and  the  surnames  of  all ,  affidaiit  is  made" 


I4:w 


STATrTES.  NOVA  SCOTIA. 


1440 


ThiM  pruutii.o  wu«  iHi'Heivuil  In  tliu  '-'ml  HuiifH    in  which  he  reniilfn,  /«'  mni/  np/wir  nwl  ftU  hi» 

(if  tliu  Ki!vi»fil  Stiiluti'i*,  mill  wiiH  Himilivr  In  tlir    thrlnnifioii  in  th«  Vouiih/  ii/irrr  hr  ilitm  i'rviti',iit 

|ni.vi«i(.iiH  fiHini'rly  i'xi»tiii«  in  ri'Ltiun  Ici  iippli-  i  thv  /ir»t  tfiin  mtlimi/utiit  tu  thr  Ai-rrice  of'  y»(jc,.« 

tatiiin  for  a  nipiiiH,  wliioli  uImo  ii'<|uiitMl  that  lliu    on  him,  anil  thull  mlnnit   fn  cnuiiinntiiiii  niiuii 

iiiilipisoniunt   (in   thai   writ   Nhcmld  la'  Hiniilaily    o'lfh.  if  irt/uiird,  itt  Ihv  mini  in-  Ihr  iieil  Kiilnf 

Hij^iii'cl.       .SV(     ImI     Kcvisi'd    Sialiitc.i,    iliaptcr    yHc///  Iviin." 

i;iH,  Hcction  .'i.     In    IM,"i;{,   JHUVi'VtT,  anil  I'hn'en        {{ffmu  llu^  jtuHxing  (if  11)  Vict.  c. '24,  tju;  Cumi 

VHiM  piidi'  III  liic   Hill  Mciit'H   (if   thi!    KuviHi'il    hail  pnWHT  tu  dini'liaiKu  a  pvrmin  as  agonl  nt  an 

Siatuti'M,  till!  Hii-calliMl  "  New  I'lactici!  Ai't  "  wan    aliHconiliiiK   ilolilnr',   the   tii'Ht   tiTui,    wiifii   ihr 

paMSL'il  (I'haptor  4),  which  I'xpifsuly  icpcali'il  thu    iicilitor  iliil  nut  give  any  miliio  nf  hi«  iiiliiiiiHii 

fdiniur  .StaliitL'M  rulating  tii  arruxt  (in  nicxne  pi(i-    in  ii;(|uiru  a  puiMimal  exaniinatidii.     'IT.i'  .imnt 

iiHw,  and  intriidiiced  llie  pri!H«nt  «y.stuin,  which    in  hucIi  ciiHu  ih  cntillud  t(i  hit)  (!0»t8  of  inotioii  ul 

«aH  taken  frnni  tiic  Imperial  Statute,  1  X:  'J  N'iet.    diitchargo. 

chapter  I  H».     TliiH  .Statute,  allhnugh  it  lefcrs  tn  , 

the  HUni  inddlHud  nu  the  capian,  has  nn  pidvisiou  | 

rei|uiring    that    hucIi    indnrnenieut     Nlinuld    he 

nigned,  nnr  do  tiie  fiuiUM  indicate  it.      I'liilialily, 

an  it  bocaino  reiiuisito  tn  have  an  (iider  tn  hnld 

t(i  hail,  the  sigiiatiiru  (if   the   .hidgu   nr   C'liiu- 

inis.Hinner   to  the  indnrHeinent  was  not  di^eniijil 

t'SHuntial. 

Mrpimalil  v.  rms,  r,  'A  II.  fi  C,  '-'DM. 


Cftiiihlon  V.  Cook  il  iil.,  '2  'riLiiiii.,  7^. 

Rev.  SInts.,  'ind  series,  eamc  Into  roroo 
August  llth,  1H.W. 


•2nd  Kcv.  Stilts.,  ('.  'i'i,  s.  lU  - 

'•.\'ii  iiirxiiii  sIkiII  riciivir,  ur  //<■  nlhin'id  in 

ml  iifl\  innj  rliiiri/r  fill'  iiitii.i'ii'iitiii'l  lii/iU'ri.  in 

iiinj  ijiiiiiiUlii  li'xn  Ihiiii   mil'  iliilliiii,  ililiri  fill  III 

mil'   mill   till     Kiiinr    liiiH',    ")/''    "//    k/h  riiiliir.s. 

1st  K>  8»,  C.  in,  s.  K— t'f.  iitll  Ut  a<,  C.  104,    /,,•//,,_  „,,<,..y  ur  luirri'inints,  i/in'ii  in  fhfiv  m-  in 

O.  XLVI.,  R.  6  - 


"  When  nny  jwrmm  shall  have  iinii  title  or  inter' 
flit  in  anil  real  estate,  i/ouds  ur  credits  altiuhed, 
as  a  siilisei/neiit  nt/acher  or  otherwise,  he  mini  tie 
allowed  to  disjiule  the  validity  and  effect  of  the 
attachment,  on  the  iji-Mind  that  the  sum  demanded 
was  not  juttlji  due,  or  that  it  was  not  paiiahle 
when  the  action  commenced," 

Wiieii  T.,  a  Huli-<ei|Ueiil  attaclief,   iu  his  alii- 

davit  in  sujipoit  nf  a  motion  to  set  aside  process        ^^  ,,,^^....5^  j --   

of  liivcedii-.g  attacher,  slated  that  the  ]ilaii\titr  ,((,^  j,_  ^^^^  .^^  which  ten  nude  r.itahle  iuiudiitaiits 
was  .fecuied,  in  part,  liy  a  mortgage  and  that,  if  ,,f  ^\^^,  iHsnicl  voted  for  assessment,  auil  live 
the  diroctiiiusof  the  Court  of  Chancery  had  lieeii  ^^^^.\^  jnlialiitants  against  it  ;  four  males  ami  fmii 
complied  witli,  security  had  lieen  given  for  the  ti;iiiales  who  wished  to  vote  against  usscssiuuiil 
wliole  amoinit,  were  rejected,  the  former  on  the  ground  of  tlicii 

//</(/,  that  T.  had  shown  a  right  to  interfere.  „„j  possessing  ratalile  property,  and  tiie  latlci' 
The  Court  directed  a  jury  to  imiuire  wliether  „„  nucount  of  their  se,\.  At  tlie  meeting  wliicii 
plaiiititf  had  any  and  what  gO(jd  and  sulHoient    iij,p„i„ted  the  trustees,   two    of   these  rcjcctui 


/iiir'  III  siciirc  mi;!  ■■""•/!  clmrijc,  shull  '"    rnlil." 
The   word    "agreements"  does   not    iiiciiulc 
"  accounts  stated." 

Snti/lh  V.  .1/,'.Vm7/,  •-'Old.,  ",. 

2ml  K.  S.,  C.  00,  s.l0-('r.5tli  B.  S.,  ('.  '2«, 
S.  45— 

(Assessments   for   schools   where    a    mainrity 

agree)  — 

A  meeting  was  duly  held  under  '2ud  K.  S.,  c. 


uecurity 


Xaxli  V.  McCurlniij,  "2  Thom.,  1(J7. 


males  acknowledged  that  they  had  no  property, 
and  no  right   to    vote,  and  tiie    oilier   two  iiiul 


Per  miss,  J.  -Two  cases  are  specified  in  which  '  never  been  assessed  for,  nor  paid  rates  or  taxes 
a  suhaeiiuenl  attacher  or  other  person  interested  "f  any  kind,  and  were  not  known  to  possess  ai.y 
may  apply  to  set  aside  the  proceedings,  and  they  properly.  A  copy  of  the  assessment  roll,  ami 
are  the  two  strongest  cases  that  can  be  imagined,  ;  not  the  original,  was  returned  to  the  .Sc.iniis 
andinwhioh,  if  in  any  case,  no  enactment,  would 'four  months   after   the  assessment   was  iiiadc. 


be  reijuired.  We  may,  therefore,  reasonably 
infer  that  the  Statute  did  not  intend  that  any 
other  objection  should  be  taken. 

CreiijhIOH  tl  al.  v.  Danidt,  James,  .347. 

1st  K.  8.,  C.  141,  s.  le-Cf.  Stta  B.  S.,  c.  101, 

O.  XLVI.,  R.  17 


//(/(/,  that  the  scliool  assessment  was  valid. 
McOi^i/or  V.  ra'itr-<on,  1  Old.,  •Jll ; 
Pi  mo  V.  Shaw  it  al.,  1  X.  S.  1).,  %'l- 

'2ndB.  8.,  c.  82,  s.  1- 

'•Ni>  person  upon,  any  contract  slmll  t"l<'' 
directhj  or  indirectUj,  for  the  loan  of  iimiv:* 


W.      .«».*J   «    ^.,      ^«.      .>.■  I  ./       -  ..   ■ 

''Where  the  supposed  ayent  or  trustee  is  sum-  ]  or  goods,  ahove  the  rate  of  six  per  cint.  />(''• 
7noned  to  appear  in  an;/  other  County  than  that  \  annum.    All  contracts  loherelij  a  ijrealer  rak 


1441 


STATUTES,  NOVA  SCOTIA. 


1442 


of  intervH  U  nm-n-xl,  .,i,iill  I,,   cut;  iiinl  nil,    proporty  Muize.l  l.y  liim  uiuUt  a  wamuit  of  ili^. 
jirrsi'iiM  tiikinij  <»•  rmichiij  ii/ion  iiii'j  noitfun   Ii'i'mh  for  tliu  iii)ii|Miyrnunt  of  hcIiooI  riitfii,  umlt'i' 


II,-  mnirUij  n  (inittir  fati\  »h(tll  furfiil  (fvhli: 
thr  vuliic  iif  till-  )urj»i(i'«  or  (IdihIh  in  Hiu'h  ciiw 
tnii't  or  mriiriln  roiitnirtnl j'ur  or  mruniL" 

Ve.  BILLH  UF  EXIIIANUE  AND 

PKUMIS80UY  X0TK8,  ViI.,J, ;»  &  4, 
t'OMKAlT,  H.-)- 
PBIXtlPAL  AND  AUEXT,  0. 

'iiid  K.  S.,  c.  K'2,  N.  t-dnlcrcHt)- 

A  Hpuciiil  iii(lori,c'iiinil  (111  ji  writ,  ulaiiniiig 
liiliruMl,  (111  a  mini  iiaiimil,  from  tlio  ilalc  of  ilio 
«iil  until  jiidgiiient,  given  ii  plaititillno  ligiit  to 
iiileruat  in  ca«u.i  wiiere  he  in  not  otiiuiwisu  ciiti- 
(ltd  to  it.  WiiL'io  a  iluniaiKl  is  inailu  in  wii^jiig, 
iiiiik'i'  tliu  Iiitcrt'Ht  Act  (lluvisuil  Statutes,  second 


KuviHi'd  StatliteH  (Mcuoiid  wrieM),  u.  (HI,  nee.  |l», 
altlioiigii  niiuli  wairani  lie  defective  in  not 
reciting  tii.it  the  collector  hail  made  the  oath 
iciiuiied  to  liiMiiade  previoiin  to  the  inMiic  of  hucIi 
warrant,  which  oath,  however,  had  in  fact  lieen 
niailc. 

I'lr  Voung,  L'.  .I.-Tlie  only  remedy  in  BUcii 
a  ca8o  iH  hy  in'iomri,  or  appeal  to  tiio  .SuHHionH. 
A  school  rate  in  not  \itiatcd  liy  the  excliwionof 
female  ratal)le  inhaiiitaiits  from  voting  agniiiMt 
the  rate. 

Midnijin-  v.  I'dlhr^on,  I  Old.,  '.Ml. 

'ind  K.  Sm  c.  S9,  h.  as-ir.  till  K.  B.,  c.  3.1, 

8.  23- 

"  If  any  /urioii  think  himxfl/onr-rahd  hi  may 


scries,  chapter  H'2,  section   4),  giving  notice  to  '  a/>/)w/  to  thu  mxl  Sisiioni  or  fo  'hi:  iiixl  S/iirial 


tiic  debtor  that  interest  will  lie  claimed,  it  is 
still  in  the  option  of  the  jury,  or  of  the  Court 
wlicii  there  is  no  jury,  to  allow  or  reject  the 
iiilciest  as  they  shall  think  tit. 

Xvnis  V.  Ttiy/oi,  I  X.  .S.  I).,  491. 

2nd  K.  8.,  c.  80,  H.  n-lf.  .Itll  K.  S.,  c.  35, 

s.  18— 

C-'iid  Uuv.  .Stats.,  e.  80,  s.  li,  same  hh  utli  Kev. 
Stilts.,  c.  3,")  s.  :i,  renders  townjhijis  lialile  to 
tile  maintenance  of  the  poor  who  iiave  gained  a 
settlement  tiiere)— 


Sisiiuiin  to  he  hi  III  for  hturiiii/  surh  ajijimls.  in 
Ihi  Cuiiiiiy  (!)•  Dintrii't  ii-hnnin  fhi  (is.-n.^^inni/  w(m 
ntciiii'  ;  (iiiil  ihi:  ovikr  of  nai:h  Courl  of  AjijikU 
ihall  hi'., film/." 

It  was  contended  that  the  appeal  did  not 
extend  ti.  a  party  wiio  oiigiit  not  to  liave  lieeu 
rated  at  all,  hut  was  so  rated, 

//t/il,  that  it  (lid. 

Mi-llriijo)-  V.  I'Hlh.rson,  1  Old.,  'Jll. 


2nd  R.  S.,  c.  112 -Cf.  5tll  K.  8.,  C.  88- 

"All  vatntoi  tail  ari:   "holishiil,  nnd   ci'erij 
S.  17  en,,cts  that  '' wu-y  loirmhir  sluUlhtliuUt  i  ,,tut<i  which  u'imid  hitlurtu  hair  hrni  Kiljmhjed 


lo  fiay  any  ix/nnif:  n'hu-k  ihall  nuxssarily  lit  in 
cm-nil  for  Iht  reliifofajiaiijiu-  hy  any  ptmon 
ii-ho 


n  fee  tail  shall  hvnaftii-  In:  adjuili/rd  u  /(.e- 
ninijdv,  and,  if  no  valid  remainder  be  limited 
/..  not  tmhk  hy  inw  for  hi.s  .support,  f^^cH  ^/jercoH,  s/K(/n>e  «  ?<■«  .s,m;</«  «/,.s,;/«<e,  ,/Hr? ,««» 
noureand  rtqmd  made  to  tht  Oi:rs,tr.  of  the  \  i,,  conveyed  or  devixed  In,  the  tenant  in  tail,  or 
M,p,  and  untd  provision  shall  o-  made  hy  utherwise  shall  descend  to  his  heirs  as  a  fee 
them. 


Ill  hi,  that  Overseers  of  the  Poor  are  not  liable 
in  Ml  action  brought  against  them  as  such  O/er- 
seen  to  recover  an  amount  expended  to  suppor.'^ 
a  pauper  belonging  to  that  township,  some  years 
licfme  the  defendants  came  into  olHce. 

lliirrilt  el  al.  v.  Hatfield  et  al.,  2  Thoni.,  IGI, 

'ind  K.  S.,  c.  89,  s.  25- Cf.  5tll  K.  8.,  c.  35, 

8.20- 

"  The  collector  shall  make  oath  iu  n-ritimj  be- 
fore such  Jmtice,settinij  forth  the  name  ofertry 
lUfmilter,  the  sum.  a.s.ses.ied,  that  the  demand  has 
km  made,  and  that  the  rate   is  unpaid ;  and  { 
th'j-eiipon  Slick  Justice  shall  forthwith  issm  a  yen- 1 
(ml  warrant  of  distress  aijainst  the  several  de-  j 
fmlturs  in  the  form  in  the  .schedule,  directed  to  a  \ 
m.-,tal)le  not   beiwj  such   collector,  commandimj 


.  simple." 

When  a  testator  devised  lands  to  his  son  R., 

"for  and  during  Ids  natural  lifetime,  then  to 

devolve  to  his  eldest  child  lawfully  begotten  in 

j  a  line  of  succession  forever,"  and  the  testator  died 

^  before  the  pass-ing  of  the  Act  abolishing  estates 

,  tail,  it  was  oontonded  that  II.,  who  died  child- 

!  less,  under  his  father's  will  took  an  estate  tail 

which    the  above  chapter  converted    into    an 

estate  in  fee,  and  that,  therefore,  the  defendant, 

to  whom  R.  had  conveyed  the  land  in  fee,  and 

not  the  heirs  of  the  testator,  were  entitled  to 

the  land  ou  the  death  of  R. 

Held,  that  the  rule  in  Shelley's  case  did  not 

apply,  and  that  R.  took  only  an  estate  for  life. 

McKay  et  al.  v.  Annand,  1  Old.,  247. 

The  Act  is  retrospective,  and  abolishes  abso- 


l>m  to  levy  upon  the  ijood-s  of  each  person  named    lutely  all  estates  tail,  even  although  a   valid 
in  the  warrant  the  sum  due  hy  .such  person,  with  j  remainder  be  liniite<l  thereon. 


mMahle's  and  Justice's  fees." 
Replevin  will  not  lie  against  a  constable  for 
48 


In  re  Estate  of  Simpson,  1  Old.,  317  &  745  ; 
McKenzie  v.  McKcnzie,  2  Old.,  178. 


1443 


STATUTES,  NOVA  SCOTIA. 


1444 


2nd  R.  8.,  c.  113,  s.  0-Cr.  5th  K.  S.,  c.  H4, 

8.8- 

"All  (IcpOh,  jiKhjments,  and  ultuchmcnts 
affectimj  lands,  shall  he  raf/istered  in  the  office 
of  the  County  or  District  in  which  the  lands 
lie." 

See  2na  K.  S.,  C.  113,  s.  20. 

2nd  R.  8.,  c.  113,  s.  19-Cf.  5th  R.  8., 

c.  84,  a.  18— 

"  Deeds  or  morltjaijes  of  lands  duly  executed, 
but  not  reyislered,  shall  he  void  ayainst  any 
suhsi'ijuent  purchaser,  or  mortijui/ee  for  valu- 
ahlc  consideration,  ivho  shall  first  reyister  his 
deed  or  mortyaye  of  such  lands." 

One  Hazel,  on  the  19th  August,  1809,  executed 
a  deed  to  plaintiff  of  .a  certain  lot  of  land,  and,  : 
on  the  '24th,  another  deed  of  a  second  lot,  both  i 
of  which   deeds  plaintiff   had   recorded  on  the  \ 
25th.     On   the  Srd   May   previous.   Hazel  had  ' 
given  a  deed  of  the  same  two  lots  to  defendant,  I 
which,  however,  was  not  recorded  l)y  him  until 
after  plaintiff's  deeds.     Plaintitl'  had  notice  of 
this  deed  wh'^n  he  received  his  second  deed,  but 
not  when  he  received  the  first.     The  jury  found 
that  the  deeds  to  plaintiff  were  liona,  fde  and 
for  good  consideration  ;   whereas   the   deed   to 
defendant  was  made  for  the  purpose  of  <lefraud-  ; 
ing  Hazel's  creditors.  i 

Held,  that  under  these  findings  plaintiff  must 
succeed,  his  knowledge  of  the  existence  of  de-  j 
fendant'sdeed  at  the  time  he  received  his  second  i 
deed  having   no  effect  upon   his   title,  as  that  ! 
deed  was  fraudulent.  I 

Fleldimj  v.  Acktrly,  2  X.  S.  D.,  526.  I 

.Set,  a/so,  2nd  R.  8.,  C.  113,  s.  20. 

2nd  R.  8.,  c.  113,  s.  20 -Cf.  5th  R.  8.,  C. 

84,  s.  19— 

"  No  mortyaye,  jiidyment ,  or  other  iucumbrance 
ajlhc/iiiy  lands,  .shall  hare  any  priority  or  fjTeet 
by  reason  ofhi'iiiy  held  f>y  or  rt.sltd  in  the  same 
person  with  another  mortyaye  or  incumbrance  of 
prior  date  and  riyislry." 

Where  a  mortgagor  by  two  distinct  transac- 
tions has  mortgaged  two  properties,  one  of 
whicli  on  sale  under  foreclosure  has  not  realized 
the  sum  for  which  it  was  mortgaged,  the  mort- 
gagor will  be  alhvwed  to  redeem  the  other  prop- 
erty without  payment  of  tlie  balance  due  on  the 
first  mortgage.  ! 

Upon  the  sort  of  tacking  here  referred  to, 
this  sect.if)n  can  have  no  effect.  It  is  affected 
by  the  ninth  section  of  the  Registry  Act,  where 
the  lands  mortgaged  lie  in  different  counties,  j 
How  far  it  is  affeeted  l)y  the  nineteentli  section, 
or  by  the  doctrines  of  implied  or  express  notice, 
are  points  of  more  difficult  and  subtle  inquiry. 


which  I  throw  out  for  the  consideration  of  tliu 
Legislature  ;  but  as  they  are  not  directly  in 
issue  here,  I  forbear  from  expressing  wiiat 
would  be  only  an  extra  judicial  opinion.  One 
thing  is  certain,  that  the  sooner  the  rule  is 
determined  and  known,  the  better  will  it  \n;  for 
all  parties.  Thousands  of  titles  have  Itccn 
searched,  and  numerfnis  securities  have  liccn 
taken  without  reference  to  such  a  ri.le,  ami  no 
cla.ss  of  transactions  w  ill  be  more  affe  :teil  l)y  it 
than  those  of  the  defendants  themselves.  It  is 
notorious  that  in  many  cases  the  same  ndivid- 
ual  has  borrcjwed  from  the  Building  So'nety  dis- 
tinct sums  on  distinct  properties,  and  if  tliey  liave 
the  power  they  now  claim  of  using  the  mortgages 
as  guarantees  for  each  other,  the  rights  of  tiie 
mortgagors  in  dealing  with  their  property,  ami  of 
purchasers  from  them,  willbetrannnelledinaway 
of  which  hitherto  they  have  had  no  conccptiuii, 
Slayler  v.  Johnston  el  al.,  1  Old.,  oU'J. 

2nd  R.  8.,  C.  Ill,  8.  5-t'r.  5th  R.  8.,  C.  89, 

s.  4— 

"No  ifilf  shall  tie  ralid  nnlis.s  it  shall  In:  in 
lori/iny,  -siymd  at  the  <  nd  or  fool  by  Iht  leslaior, 
or  by  .sonit  othi  r  person  in  his  pj-tstriice  and  by  Am 
dirtction  ;  and  sr.ch  siynalnrt  shall  be  mailr  or 
acknowledyed  by  the  testator  in  the  pre-sewi  'f/irn 
or  more  ici/ne-ssM  present  at  the  .same  tinir,  ami 
■such  teitne.sseH  shall  altist  and  shall  suliscril.n:  thr 
will  in  the  presence  of  the  lf;stalor,  but  no  form  of 
attestation  shall  be  necessary." 

Held,  that  a  will  is  suificiently  attested  where 
the  testator  could  see  tlie  witnesses  sign,  had 
he  chosen  to  do  so,  though  there  was  no  proof 
that  he  actually  did  see  them  sign,  and  tliey 
were  in  an  adjoining  room  at  the  time. 

This  Act  differs  from  the  English  in  that  tlie 
testator  need  not  sign  in  the  presence  of  wit- 
nesses. It  is  sufficient  if  he  either  sign  the  will 
in   their   presence  or  acknowledge  it  in  tlieir 

presence. 

Garriyan  V.  Carz-iyan,  2  Old.,  S, 

2nd  R.  8.,  c.  121— 

Per  James,  .J. — Up  to  the  passing  of  the  Re- 
vised Statutes  (2nd  series),  in  18.59,  this  (.'oart 
had  no  equitable  jnrisdicticm,  except  a  summary 
process  for  the  foreclosure  of  mortgages.  Tiie 
Chancery  jurisdiction  was  until  that  date  admin- 
istered by  the  Master  of  the  Rolls,  witli  an 
appeal  to  the  Lieutenant-Governor,  who  was 
the  Chancellor,  and  who  sat  on  appeals  with  the 
Master  of  the  Rolls  and  a  Judge  of  this  Court; 
but  this  Court,  as  such,  had  no  equity  jur'silic- 
tion.  By  chapter  127  of  the  2nd  series,  the 
Court  of  Chancery  was  abolished  and  the  whole 
e((uity  junsdiotiou  given  to  this  Court,  and  from 


1445 


STATUTES,  NOVA  SCOTIA. 


1446 


that  (lay  to  this  the  Siipronie  Court  has  been 
iKit  only  a  Court  of  K(juity,  but  the  highest  and 
indeed  the  only  Court  of  Equity  in  tlie  land. 
The  powers  tiien  given  to  tliis  Court  iiave  never 
Ijeen  withdrawn  or  repealed,  and  without  ex- 
press words  they  eould  not  be  withdrawn  or 
repealed.  Tlie.Indge  in  Equity  is  a  Judge  of 
ilii.-i  Court,  and  liable  to  perforin  all  tlie  func- 
tions of  a  Judge  of  this  Court  when  it  may  be 
necessary  for  him  to  do  so.  And  the  Judges  of 
the  Court  are  all  Judges  in  E<;uity  wheiiever 
the  necessities  of  the  ease  reciuire  tliem  to  exer- 
cise tlieir  powers,  which  necessity  is  occurring 
every  day. 
Bank  of  Nova  Si'olia  v.  Smith,  4  R.  &  <,'.,  14G. 

2nd  R.  S.,  c.  127,  h.  2-  Cf.  Srd  K.  S.,  c.  124 

3.  4— Cf.  4th  R.  S.,  c.  95,  a.  7— 

••  III  all  cases  heretofore  deteriainahle  Ui 
Cliiinrery,  and  henceforth  to  be  cond-tcted  in 
(III-  Supreme  Court,  the  practice  of  the  Supreme 
Oiurt  nolo,  or  hereafter  to  be  established,  as 
fur  as  it  is  applicable  thereto,  shall  be  observed, 
excejit  in  so  fur  as  the  practice  is  altered  or 
madiried  by  this  chapter;  and  in  any  (V(»'e  to 
irhich  such  pjractice,  and  the  provisions  ol'  this 
chujiter  shall  not  apply,  but  in  no  other,  the 
iiructice  of  the  L'wjlish  Chancery  shall  be 
rnhpted." 

I'(r  DesBarres,  J. — We  are,  it  seonis,  to  exer- 
cise all  the  powers,  and  apply  the  same  princi- 
ples of  e(juity  as  a  Court  of  Chancery,  liut  we 
.irc  to  do  tills,  as  far  as  can  be  done,  according 
to  the  practice  of  the  Supreme  Court.  In  a 
mixed  jurisdiction  like  this,  of  law  and  e(£uity 
combined,  it  may  not  be  easy,  at  all  times,  to 
iliscover  whether  the  practice  of  one  Court  or 
the  other  ought  to  be  adopted,  and  whenever 
any  difficulty  of  this  kind  occurs,  .ve  must  ueces- 
Mii'ily  shape  and  mould  a  practice  for  fmrsclves, 
to  unable  us  to  discharge  the  functions  of  ai; 
Ei|iiity  Court,  as  far  as  may  be  according  to  the 
course  and  practice  of  a  Court  of  Common  Law. 
Mi'Aijy  v.  ilruy,  Ccjcliran,  5"2. 

2ml  K.  S..  C.  127,  s.  13- 

(Decreeing  specific  performance) — 

See  SPECIFIC  PERFORMAXCE,  5. 

2nd  R.  S.,  c.  130, 88. 13  and  18-Cr.  oth  R. 

S.,  c.  100,  sa.  26  and  31— 

S.  l.S.  "  In  case  the  personal  estatu  of  the 
kf.msed  shall  be  found  by  the  Judge  on  affl- 
'I'lvit  insufficient  for  the  payment  of  ?iis  debts 
"ltd  Icyucies,  such  Judye  upon  security  being 
[ih'enfor  the  proceeds  of  the  sale  or  the  sum  oh- 
imcd  by  mortgaging  or  leasing  the  same,  may, 


nt  his  discretion,  grant  a  license  for  the  sale  oj 
the  whole  or  such  part  <f  the  real  estate  of  the 
1  deceased  as  he  shall  ileem  necessary,  or  for  the 
mortgaging  or  leasing  thereof,  provided  such 
lease  be  for  a  term  not  exceeding  tioenty-one 
years." 

S.  18.  IVhoi  any  iiart  of  the  real  eihtte  of  the 
testator  htm  been  undtriMed,  and  the  personal 
enlale  ahull  beiiMufficii.nt  for  the  /taymeut  of  debit, 
Ifgaciex  and  expiufis,  tht  uuderised  rial  estate 
shall  be  first  sold,  nn/ess  it  shall  appear  from  the 
will  that  a  diffirent  arrangement  of  his  assets  for 
the  payment  of  his  debts  or  legacies  was  intended, 
in  irhich  case  they  shall  be  applied  for  that  pur- 
jiose  in  rouformity  irith  the  prorisions  of  the  will," 

Held,  that  the  real  estate  of  a  testator  is  not 
liable  for  tlie  payment  of  legacies,  unless  it  is 
manifest  from  the  will  that  such  was  the 
testator's  intention. 

Real  estate  devised  to  one  cannot  be  sold  for 
the  payment  of  a  legacy  given  to  another,  unless 
the  testator  has  clcary  shown  such  to  have 
been  his  in)  ention. 

In  re  Estate  of  McKay,  1  Old.,  1.31. 

2nd  R.  S.,  C.  131,  8.  127-Cr.  .itli  R.  S., 
c.  104,  O.  XL.,  R.  32— 

Per  Young,  C.  J. — Our  original  .Statute  of 
Fniuds  (Provincial  Laws,  vol,  1,  fol.  27,  sec.  lo), 
was  in  the  words  of  the  English  Act,  and  our 
present  Act,  Revised  Statutes,  chap.  1.34,  sec. 
127,  means  the  same  thing ;  "  no  writ  of  execu- 
tion shall  bind  the  goods  of  the  defendant,  but 
from  the  time  the  writ  shall  be  delivered  to 
the  Sheriff  to  be  executed,"  words  sufficiently 
plain  and  sufficiently  ample.  In  this  case  it  is 
contended  that  the  writ  of  execution  did  bind 
the  goods  of  the  defendant,  not  from  the  time 
when  it  was  delivered  to  the  Sheriff  to  l)e  exe- 
cuted,—  that  is,  from  the  9lli  of  January,  —  but 
from  its  teste  or  date,  that  is,  l.'lth  December. 
Now,  I  contend  that  it  took  effect  only  from 
delivery,  and  I  find  sufficient  authorities  for 
this  position,  which  is  clearly  within  the  letter, 
and,  as  I  think,  also  within  the  spirit  of  our 
law.  In  2  Equ.  Cases  Abr.,  .381,  Lord  Hard- 
wicke  said  :  "  IJefore  the  .Statute  of  Frauds,  the 
defendant's  goods  were  bound  in  the  Slieriff's 
hands  from  the  teste  of  the  writ  of  execution. 
To  avoid  this,  the  Statute  was  made,  whereby 
it  is  enacted,  that  the  goods  shall  only  be  bound 
from  the  delivery  of  the  writ  to  the  Sheriff; 
but  neither  before  this  Statute  nor  since,  is  the 
property  of  the  goods  altered,  but  continues  in 
the  defendant  till  the  execution  if.  executed. 
The  meaning  of  these  words,  that  the  goods 
shall  be  bound  from  the  delivery  of  the  writ  to 
the  Sheriff,  is,  that  if,  after  the  writ  is  so  deliv- 


1447 


STATUTES.  NOVA  SCOTIA. 


144S 


erert,  the  clefmidant   make  an  assignment  of  liis    tion,  Rltliough   the   original   taking  niay   liavi- 
goods,  unless  in  maiket  overt,  the  Sheritt'  may    heen  lawful. 

take  them  in  execution.^'  I  Fra.mau  v.  Harriw/lnii  if  a/.,  1  OM.,  Xti. 

llnnoir.'i  V.  Iftntr,  1  Old.,  371. 


and  R.  S.,  c.  134,  8.  144 -If.  5th  K.  8., 

c.  104,  O.  XIII.,  R.  8.- 

"/)t   rnsi-  thin    '"    no  aii/iearwm  and  pita 
V'i'hin  tht  /imeniifoinlxl,  or  if  an  appearance  hi: 


2nd  R.  S.,  c.  135,  8.  28 -IT.  5th  K.  S.,  c. 

107,  s.  9— 

"  The  prohntc  of  a  icill,  or  a  copij  thircuf, 
carlifii'd  niider  the  hand  of  the  Judiji-  or  Jiiijis- 

tntored  but  the  dffevv,  limiledto  part  only,  the.   tmr  of  Prolate,  or  proved  to  he  a  true  n,p;,  of 
plainflir  Shalt  IH-  at  Hherty  to  .vjnjudument  tha>    the   oriyinul   will,    when    sneh    will   hus  hion 

',  ,       ,-,;.•  ^. .,>./,,/.■„/;„.  i/..-.'/  shtdl  recorded,  shall  he  received  Hit  evidence ;  h}a  ih: 

the  pirxon  irho-<i-  tilte  i.i  anserfta  virntntii  ■•>naii  > 

„/-  (».     /,.,.,;    n>.  ni'  ihp   unri    Court  mnti,  npon  due  cauao  shown  iiunn  offi- 
reronr  ?)0<.s».><(oh  of   I  In    tana,  or  oj   ihk  paii  ^  "         ."     /  ;         .; 

.,        J.,       1  •  1  .;      ;  .•„,.,  ,/o/^  1./-,/ ^.,,m/j/ "  diirit,  order  the  orii/ind  will  to  he  prndnreAin 

Iheriof  to  which  the  iliJiHiidoix  nor  apply.  .  „ 

Where  a  defendant  in  ejectment  first  pleaded  \  evidence." 

denying  the  plaintirt"s  right  to  the  possession  of  It  w'i«  contcn.led  that  m  an  action  for  iIr. 

the  irhole.  of  the  land  claime.l,  Imt  afterwards  recovery  of  real  estate,  the  original  will  slmuia 

obtained  leave  to  amend  his  plea,  so  as  to  limit  li^ive  l.een  produced  at  the  trial,  as  the  al.me 

his  defence  to  a  part  of  the  laud  only,  aiul  the  ««^t'<>»  uppl"-"!   "''b'   to  eases   where  personal 

plaint itr  then  signed  judgment  for  the  lesidne,  property  was  involved,  and  also  that  under  tia. 

and  discontinued  as  to  that  part  covered  hy  the  application  made  during  the  trial,  fouudul  upon 

1  an  aihdavit  tliat  the  original  will  was  reciuired, 

plea,  f  '■         ' 

If. Id,  that  the  plaintifTis  entitled  to  his  judg-  it  slu.uld  have  heen  produced, 
nienl  for  that,  part  of  the  laud  to  which  the  ff'''l<  that  in  tUe  construction  of  the  seclioii, 
defence  does  not  apply,  l.y  virtue  of  section  144  there  was  no  such  excepti.m  as  tliat  contendea 
of  the  Practice  Act  (Revised  Statutes,  '2nd  f"i'-  Also,  that  as  the  .lefendaut  lia.l  hcen 
series,  c.i;U),  with  costs;  for  though  that  clause  '  served  witli  notice  of  intention  to  producer 
of  ti;c  Act  is  in  Itself  silent  with  respect  to  the  copy  of  the  will  and  give  it  in  evidence  nearly 
costs,  the  form  of  judgment  in  tlie  Appendix,  f<'"i-  "mnths  before  the  trial,  he  should  have 
No  15,  is  given  with  costs,  both  where  no  ap-  applied  earlier  for  the  production  of  the  ongi- 
pearance  has  been  entered,  and  where  there  is  a  '  nal,  and  that  the  Judge  exercised  a  sound  .lis- 
defence  as  to  part  of  the  lands  only.  The  de-  '  ci'i-'tion  in  refusing  to  adjourn  the  trial  for  thai 
fendant  is  entitled  to  costs  for  that  portion 
for  which  he  defended. 

Fairhmd-s  v.  Jlolt",  1  Old.,  13. 

'     2nd  R.  S..  c.  141,8.  23-Cf.5th  R.  S.,c. 
2nd  R.  8.,  C.  134,  ss.  lll-lW-Cf.  5th  R.   104,  0.  XLVI,  R.  14- 


purpose. 


Carriijan  v.  Carrin'iii,  2  Old.,  S. 


S.,  c.  104,  O.,  XL V. -(Replevin) 

Per  Young,  C.  J.— These  sections  were  re- 
ported by  the  Law  Commissioners  to  our  Legis- 
lature in  185'2,  but  the  rough  drafts  having  been 
lost,  none  of  us  can  recollect  from  what  (piarter 
they  were  derived.  That  they  are  of  American 
origin  is  clear  ;  and  my  own  opinion  is,  from  a 
perusal  of  Morris'  Treatise  on  Replevin,  that 
they  were  borrowed  from  the  law  of  Pennsyl- 
vania; they  differ  toto  coelo  from  the  English 
law,  and  adopt  the  "claim  property  bond,"  as 
it  is  called,  permitting  the  defendant,  on  secur- 
ity, to  retain  the  possession  of  the  goods  reple- 
vied, which  defeats  one  of  the  main  objects  of 
the  writ.  It  is  unknown  to  English  practice, 
and,  in  the  Union,  is  confined  to  the  States  of 
Pennsylvania  and  Delaware,  although  the  isew 
York  Code  of  I'rocedure  has  introduced  h,  very 
similar  proceeding.  Section  171  of  our  Act 
permits  the  writ  to  be  brought  and  the  form  of 
the  writ  No.  2  is  given  as  for  an  unlawful  deten- 


"  Xo  execution  shall  ismt  aijaviM  an  ahsuii  or 
ahsrondimj  debtor  until  the  plaintiff  shall  ijin 
security,  to  the  satisfaction  of  the  Court  or  n 
Juilije,  for  the  re-payment  of  all  monies  kritd 
thereunder,  in  case  the  judgment  should  U  re- 
versed." 

\Vhere  an  execution  was  taken  out  without 
such  bond  having  been  allowed  by  the  Court  or 
a  Judge,  the  Court  set  it  aside,  tlioiigli  the 
sureties  were  unexceptionable. 

Allan  W.Caswell,  1  Old.,  405. 


2nd  R.  8.,  c.  144,  8.  7- 

"  In  all  causes  broiiijht  up  hy  appial  and  con- 
tested, the  Court  shall  try  the  same  anew." 

Held,  Rliss,  J.,  dissentin;/,  that  no  apFal 
from  a  judgment  of  non-suit  before  a  Justici'  01 
the  Peace  lies  where  the  plaintiff  produced  no 
witnesses  below. 

McCully  v.  Barnehill,  Cochran,  81. 


144!) 


STATUTES,  NOVA  SCOTIA. 


1450 


2iHl  K.  8.,  0.  liiO,  8.  a-tr.  nth  K.  S.,  c. 

101,  s.  16— 

"  \[7i(:r(',  (I  j)o(i)'  or  cnuHtij  rale  shaU  he  latcdc, 
mid  n  warrant  of  distress  shall  issue  aijuinst  a 
liirsiiH  rated  therein,  nnartion  shall  he  hranijht 
lujiiinst  the  Justice  irhn  (/ranted  the  nytrnint 
for  an;/  irreijularity  or  defect  in  the  rate,  or  hy 
misoH  of  any  such  jierson  not  heini)  liable  to  he 
ruled." 

I'd-  Young,  C.  J.— It  iippeiirs  from  the  lan- 
guiigu  of  the  first  sectif>n  tliiit  tliiscoin|ireliensive 
Mid  novel  in-ovision  in  tlie  tiftii  must  extend  Xc. 
actions  of  replevin,  as  well  lis  to  any  other  action  ; 
iuiil  in  an  action  of  tort,  where  the  constable  lias 
c(iinplie<l  witJi  a  demand  made,  and  given  a 
peiusal  and  eo|)y  of  his  warrant,  lie  is  also 
exempt,  although  the  Magistrate  may  have  iiad 
iKi  jurisiliction,  so  tiiat  tlie  party,  distrained  on 
liy  a  warrant  issued  in  good  faith  Imt  illegal,  has 
IK)  redress  against  eitiier.  Here  comes  llie 
peculiarity  and  tlie  hardship  of  this  case.  It  is 
iui  action  of  replevin,  and  heing  so,  it  is  urged 
tliiit  the  usual  demand  not  lieing  re<|uired  and 
not  iiaving  been  made  of  a  perusal  of  any  copy 
of  the  warrant,  tlie  constaljle  loses  the  1)enetit  of 
the  Statute.  Assuming  tliis  to  lie  law  (as  it  has 
Ijtcii  held  in  the  most  recent  cases,  wliich  admit, 
Itiiink,  of  some  doubt),  it  follows  that  when  tlie 
warrant  is  irregular  or  defective,  tlie  constable 
is  lial)Ie  in  replevin  when  the  Magistrate  is 
iKit.  Chapter  loO,  it  is  clear,  protects  the 
su|ii'rior,  who  has  all  tlie  advantages  of  a  higher 
]lo^iIion,  and  is  presumed  idso  to  have  higlier 
mti'lligence.  And  chapter  l.")l,  it  is  said,  does 
not  jiroteot  the  inferior  otticer,  whom  tiie  law 
compels  to  obey  the  warrant  and  indicts  for 
nfiising  to  execute  it.  It  would  be  a  violation 
"f  tlic  first  principles  of  justice  to  hold  that  the 
Liinstable,  who  was  compellable  to  execute  the 
warrant,  was  liable  to  an  action  of  replevin  when 
neither  tlie  party  wlio  set  the  Magistrate  in 
inotion,  nor  the  ^lagistrate  himself  can  be 
touclied. 

McOrt'/or  v.  Pai/er.io»,  1  Old.,  211. 

See  STATUTES,  IMPERHL, 

24  Geo.  2,  c.  44. 

iiul  K.  S.,  c.  151  —  (Protection  of  Con> 

stables) — 

SVt  STATUTES,  IMPERIAl, 

'24  Geo.  2,  c.  44. 

Kev.  Stats.,  3r(l  series,  came  into  force 
Marcli  21th,  1805. 

iul  R.  S.,  c.  12,  8.  9- 

'  If  any  declaration  or  oath  required  to    be 
>ii'i(k  under  the  revenue  hncs,  shall  be  untrue 


in  any  partiexdar,  or  if  any  person  required 
under  such  laws  to  ansieer  unestions put  to  him 
hy  offlcers,  shall  not  truly  ansiccr  such  qnes- 

I  tions,  the  person  ruakin<i  such  declaration,  or 

!  refusin(j  to  an.^mer  or  nut  truly  answerimj  such 
questions,  shall  forfeit  a  sum  not  exceeding 
two  hundred  dollars  over  and  above  (dl  other 
penalties  to  v'hich  he  may  he  linhle." 

Plainlitf,  as  collector  of  colonial  revenues  for 
the  I'ort  of  Sydney,  brought  an  action  against 
defendant  for  tlie  penalty  incurred  under  Re- 

I  vised   Statutes   (.'Jrd  series),   e.    12,  s.   9,   by  a 

I  violation  of  the  revenue  laws,  and  obtained  a 

I  verdict. 

I  A  rule  niKt,  in  arrest  of  judgment,  was  granted 
to  defendant  on  tlie  following  grounds  : 

First,  because  it  was  not  alleged  in  the  declar- 
ation that  the  action  was  lirought  at  the  instance 

j  of  the  board  of  revenue  ;  second,  because  the 
particular  ofTence  alleged  to  have  been  comniit- 
ted  was  not  specified  in  the  writ  and  declaration. 
Held,  tliat  neitiier  objection  could  prevail. 
The  Statute  provided  that  this  action,  though 
brought  for  a  penalty,  shouhl  be  prosecuted  in 
tlie  same  manner  in  all  respects  as  an  action  for 
the  recovery  of  a  delit,  and  the  defendant,  if  he 
wished  to  take  advantage  of  the  first  ground, 
should  liave  pleaded  it  as  a  matter  of  defence, 
while  the  second  ground  of  objection,  although 
uii<|uestionably  fatal,  if  this  were  a  criminal 
prosecution  l)y  information  or  indictment,  was 
of  no  avail  in  a  purely  civil  action. 

Leonard  v.  Co<isi-eH,  I  N.  S.  D.,  121. 

Srd  R.  S.,  c.  19,  .s.  16  - 

"  Xo  person  sludl  recover  or  he  allowed  to 
set  off  any  charye  for  intoxicatinfj  liquors  in 
any  quantity  less  than  one  yallon,  delivered  at 
one  and  the  sa.me  liuie,  and  all  specialties,  hills, 
notes,  ayreements  or  accounts,  stated,  yiven,  or 
made  in  vhole  or  in  part  for  or  to  secure  any 
suefi  charye,  sliedl  be  void." 

The  word  '■'■  KpicJalfii  s"  in  this  section  does 
not  include  "judynii-nf." 

Lnicrence  v.  McDnn(dd,  1  X.  S.  1).,  41.3. 

I'laintitF supplied  defendant  with  merchandise, 
and  among  other  things,  with  intoxicating  licjuors 
in  r|uantities  of  less  than  one  gallon  at  one  and 
the  same  time.  Defendant,  on  the  other  hand, 
supplied  plaintiff  witii  articles  which  were  placed 
to  his  credit  in  plaintiff's  liooiis  of  account.  On 
a  settlement  of  accounts,  plaintiff  struck  out  of 
his  account  all  charges  for  liquors  supplied  as 
above  ami,  with  defendant's  consent,  deducted 
a  like  amount  from  the  latter's  credits  by  way  of 
payment  for  the  li(juor.  Defendant  having  given 
a  promissory  note  for  the  balance, 

TIM,  that   the  note  so   given  was  not   void 


1451 


STATUTES,  NOVA  SCOTIA. 


14o: 


under  Revised  Statutes  (3rd  series),  olmpter  19, 
being  neither  for  nor  to  sectn'e  intoxicating 
liquors  in  any  (|uantity  as  for'oidden  \>y  the 
Statute.  Ti>e  Statute  being  restrictive  of  the 
Common  Law  and  of  a  penal  character  must  re- 
ceive a  restrictive  construction  and  on  no  account 
should  be  construed  to  mean  anything  otiier  tiiau 
tlie  plain  ordinary  meaning  tin;  words  would 
convey. 

Smith  v.  McKachn-n,  3  N.  S.  1).,  3.')  &  279. 

Action  on  a  promissory  note.  Defence,  that 
the  consideration  for  the  note  consisted  in  part 
of  ciiarges  for  intoxicating  lii|Uors  sold  by  plain- 
tiff to  defendant,  in  (luantities  less  than  one 
gallon. 

J/tl(l,  that  under  the  provisions  of  the  License 
Act,  Revised  Statutes  (3rd  series),  c.  19,  s.  16, 
the  note  was  void,  the  effect  of  the  Act  being  to 
render  such  sales  of  liijuor  illegal. 

Held,  that  the  law  would  not  permit  payments 
made  by  the  debtor  on  account  to  be  appropria- 
ted by  the  creditor  to  charges  for  li(iuor  thus 
sold,  even  though  the  appropriation  be  made  with 
the  debtor's  consent. 

Smith  V.  McEachren,  1  N.  S.  1).,  299. 

3rd  R.  S.,  c.  10,  s.  23- 

"Appeals  from  the  (/.(.'risioufi  of  the  Justices 
for  any  penalty  or  forfeiture  incurred  nnder 
this  Chapter,  shall  he  granted  in  the  same 
manner  as  in  the  case  of  summary  trials"  Ac. 

The  effect  of  the  appeal  is  to  vacate  the  judg- 
ment l)elow.  Tlie  case  stands  for  a  new  trial. 
Ry  appealing,  the  defendant  waives  want  of 
personal  service. 

Hand  v.  Rorkirdl,  2  N.  S.  D.,  199. 

See  3rd  R.  8.,  C.  128,  S.  33. 


3rd  Rev.  Stats.,  c.  25,  ss.  14, 15,  and  36— 

Something  more  is  re(iuire.l  than  a  mere  pro- 
clamation before  applications  for  areas  can  1)6  I 
made  under  any  other  section  of  the  Act  than  I 
section  36.     Areas  must  be  laid  oft"  in  a  particu-  ! 
lar  way  and  of  a  particular  size  ;  a  plan  must  • 
be  prepared  with   the  areas  laid  off  distinctly  ■ 
marked  thereon  ;  and  as  each  applicant  tiles  his 
■written  application,  and  pays  for  a  mine,  the  i 
name  of  the  applicant  must  be  written  on  the  j 
area  or  areas  applied  for.     When  the  relator  j 
made  his  application,  areas  had  not  been  laid  j 
off,   and  no  plan  had   been  prepared,  so  that  j 
applications,  if  made  at  all,  could  only  be  made  j 
under   the  36th   section.     As   I  read  the  Act, 
applications  are  to  be  made  under  the  14th  and 
J5ih  sections,  when  the  areas  are  within  a  gold 
district  laid  off  as  described,  so  as  to  enable  the 


jjrovisions  of  those  sections  to  be  carried  dut, 
otherwise,  under  the  .Sfitli  sectinn,  wliidi  inu- 
vides  that  when  the  mine  is  not  witiun  any  pin 
claimed  gold  district,  the  rights  of  parties  ami 
the  proceedings  to  be  taken  with  rffi'iiiiLu 
thereto,  shall  be  governed  as  far  as  possihli-  liy 
the  spirit  and  provisions  of  the  chapter,  mul 
that  parties  occupying  and  staking  olV  iul;i> 
corresponding  in  size  with  those  presentecj, 
simll  be  entitled  to  priority  in  the  order  <it  ilaii 
nuiking  applications,  and,  in  case  the  laud  ,-o 
applied  for  shall  afterward  be  included  ui  luiy 
j'.old  district,  and  laid  off  as  thereinbefore  ilu- 
scribed,  the  rigiits  of  the  occupants  sli;dl  \iv 
r-ispected,  so  far  as  is  consistent  with  the  terms 
of  the  chapter,  in  adjusting  the  boundary  lino 
between  the  parties  in  occupaliou.  This  setitinii 
i  of  the  Act  shows  the  intention  of  the  Leglslii- 
■  ture  to  have  been,  that  applications  iov  leases 
i  might  be  made  at  any  time  for  areas  wheievoi 
situate,  whether  within  or  without  the  limits  of 
a  gold  field,  the  applications  to  be  governed  liy 
the  spirit  of  the  Act  when  it  was  not  pnssilile 
to  comply  with  the  letter  of  it. 
I  Atlorney-Gtiieral  v.  McDonald,  2  N.  S.  1).,  l'2'i. 

3rd  R.  S.,  c.  45,  s.  1  -  (Appointment  of 

;  County  Treasurer)  — 

It  has  ever  been  the  policy  of  our  Legislature 
to  limit  all  County  and  township  appoiutinents 
to  one  year,  and  on  reading  this  section  we  see 
nothing  in  it  to  warrant  the  presumption  tluit 
as  regards  the  office  of  County  Treasurer  tlmt 
policy  was  intended  to  lie  departed  from. 

So:  BOND,  :): 

3rdR.  8.,  C.  45,  s.  15- 

Ry  chapter  4,-),  R.  S. ,  (3rd  series,)  "  Of  CouiUy 
Assessments,"  section  15,  it  was  enacteil  tliut 
the  words  "  per.sonal  estate"  and  "  persoiwl 
property,"  for  the  purposes  of  the  Act,  should  Ik' 
understood  to  include  all  such  goo<ls,  ehatteU. 
and  other  property,  as  were  enumerated  in 
Schedule  A,  thereto  annexed,  and  no  otlier,  ilie 
only  portion  of  Schedule  A  applicable  was  ii- 
foUows  :  "  All  personal  chattels  of  every  kiivl 
and  description  at  their  actual  cash  value." 

The  l?ank  of  Yarmouth  having  been  assessi  i 
under  the  above  enactment,  as  personal  estutf. 
for  $!20,000,  the  average  amount  of  cash  on  haiul. 
and  for  §100,000  cash  lent  out. 

Held,  that  the  bank  was  liable  to  he  asses>.  i 
for  the  average  amount  of  stock  on  hand  an' 
the  value  of  personal  property,  exclusive  "i 
stock,  but  not  for  the  amount  of  cash  lent  out. 

The  phrase  "personal  chattels"  means  only 
such  things  as  animals,  household  stuH',  money, 


1453 


STATUTES,  NOVA  SCOTIA. 


1454 


jewels,  corn,  garments,  and  everything  else  tliat 
can  1)0  put  in  motion  and  transferred  from  place 
to  place,  but  does  not  include  clioses  in  action, 
notes  of  hand,  lionds,  and  securities  for  money 
loaned  or  due,  which  may  he  realized  upon  by 
action  or  suit,  or  otherwise. 


of  Sessions  has  no  right  to  set  aside  the  whole 
assessment,  but  we  think  that  if,  on  an  appeal 
by  any  party  complaining  of  the  assessment,  it 
were  made  to  appear  that  tiie  rate  was  irregu- 
larly, and  therefore  illegally  made,  that  Court 
would  have  the  power  of  so  declaring,  and  give 


In  re.  The  Bank  of  Yarmouth,  '2  N.  S.  1).,  ,ms.    the  relief  sought. 

In  rf.  A'tics-immif  Srhool  Ihtfcs,  SirHou  4?, 


3rd  R.  S.,  c.  45,  s.  16-t'f.  5th  R.  8.,  c.  58, 

s.  5— 

The  Windsor  &  Annapolis  Railway  is  a  Pi'o- 
vincial  Railway  within  the  meaning  of  chapter 


Anthionish,  3  N.  S.  1).,  \'21. 

3rd  R.  8.,  C.  41,  ss.  3,  4  «L'  5  - 

S.  3.     "  Tltc,    liriind  Juries  in   the    several 


4."),  Revised  Statutes  (3rd  series),  "Of  County  i  Sessions  of  the  IWire  shnll  Hnnunlbj  nontinate 
Assessments,"  sec.  16,  and  is  exempt  from  assess-    s"*"/'  numlier  of  persons  for  Town  offlrers  os 


nient  under  the  Act. 


the  Justices    shnll    dirert,    out    of  ri'hoin  the 


The  true  tost  of  exemption  de])onds  ujMn  the    Justices  shall  appoint  such  number  <ts  ViO'j  he 
fact,  whether  the  road  is  or  is  not  a  portion  of  |  deemed  expedient. 


the  Provincial  Railway. 


S.  4.     ' '  //■  the  Grand  Junj  and.  Sessions  shall 


The  Connty  of  Annapolis  v.  The  irindxor  and  hiot  cipprjint  ft  Surveyor  of  llighicnys  or  other 


Annapolii  Raihray  Co.,  2  N.  .S.  1).,  307. 

3rd  R.  8.,  c.  45,  8.  6!- 

Per  Ritchie,  K.  J.— 

ISy  this  section,  no  certiorari  to  remove  rates 


usual  County  or  Tou'nship  oxlicer  for  a  par- 
ticular district,  any  tvo  Justices  of  the  Peace 
of  the  Township  or  Settlement  may  make  such 
appointment." 

S.  5.  "  The  officers  so  appointed  shall  be 
respectively  sworn  to  the  faithful  dischare/e  of 
or  orders,  or  other  proceedings  of  tlie  Sessions  j  their  duty  before  a  Justice  'before  entering 
touching  rates,  shall  be  granted,  but  upon  mo-  ^;,,,,.^oh  ;  and  upon  refusal  to  accept  (-i«''e  or 
lion  in  the  first  week  of  the  next  term  in  the  veijlect  to  be  sworn  in  within  fourteen  dat/s  ;  or 
County,  after  the  time  of  appeal  \^^»  c}im-<i'\,  \misbefmviour  therein,  every  such  officer  for  each 
and  before  its  being  made  to  appear  by  affidavit  ^,^^„,.p  gJ^„^  f„^.f^n  ^,v//,«  dollars." 
that  the  merits  of  the  (luestion  will  by  sucli  ^yhcrc  the  Custos  under  sec.  4  summoned  a 
removal  come  properly  in  ju.lgmcnl,  and  no  ,  ^^^^^^-^.^^  Sessions  to  appoint  a  constal)le  for  a 
rates  or  orders  shall  be  quashed  for  matter  of ,  ^y^^^^.^^^  „^,„g,|^  ,^.1^^.,.^^  .^,   t,,^.   j,^^;^^.  ^^^^^^i^ 

form  only,  nor  any  general  rate  for  any  illegality!  there  was  a   deficiency  of  constables,  and  the 
m^ the  rates  of  mdividuals,  e.xcept  as  to  such  |  Special  Sessions  pursuant   to  such  notice   met 

and  appointeil  two  constables. 

Held,  that  the  two  constaldes  were  duly 
appointed  under  sees.  3,  4  and  5. 

Pineo  v.  Shaw  ft  al.,  1  X.  S.  I).,  ,3G2. 

3rd  R.  8.,  c.  48 -Cf.  5th  R.  S.,  C.  «J- 

(Of  fences  and  fence  viewers,  and  impounding 
of  cattle) — 

The  contention  that  tlie  rule  of  the  Common 
Law  in  relation  to  partition  fences  has  been 
virtually  .<;uperceded  ))y  the  provisions  of  this 
chapter  cannot  be  supported,  for  there  is  nothing 
in  this  Act  to  alter  or  affect  in  any  way  the 
Common  Law  principles  applicable  to  the  making 
of  such  fences. 

A  fence  viewer  under  this  Act  has  no  power 
or  authority  to  fix  and  establish  any  line  of 
division  or  boundary  between  tlie  adjoining 
owners  of  land.  He  is  merely  re(iuired  to  de- 
cide what  proportion  of  fence  each  proprietor  is 
to  make  when  the  boundary  or  division  line  is 
fixed   or  assented  to,  and   to  make   the  fence 


individuals.  Without  taking  away  from  the 
Supreme  Court  the  right  of  reviewing  the  pro- 
ceedings cf  the  parties  making  the  school  rate, 
or  tliose  of  the  Sessions  on  an  appeal  to  them, 
the  Legislature  contemplated  that  in  ordinary 
eases  the  appeal  in  the  first  instance  should  be 
to  the  Sessions,  and  the  case  before  us  is  one 
wliich  that  Court  could  well  have  dealt  with,  as 
tlie  (|uestion  raised  liy  the  parties  objecting  to 
the  rate  ir»vohed  for  the  most  part  matters  of 
detail,  such  as  the  regularity  of  the  calling  of 
meetings,  the  appointment  of  a  secretary, 
wlictlier  certain  persons  were  or  were  not 
resident  within  the  section,  and  wlielher  cer- 
tain other  provisions  of  the  School  Act  had  or 
had  not  been  complied  with  by  the  trustees, 
&.C.,  all  of  which  could  very  perfectly  be  inves- 
tigated by  that  tribunal,  and  under  such  cir- 
cumstances the  p.  I'ties  dissatisfied  with  the  rate 
should  not  pass  by  the  appeal  given  them  by 
the  Statute,  and  resort  to  this  Court  by  remov- 
ing the  proceedings  to  it  by  certiorari.  It  was 
urgeil  before  us  at  the  argument,  that  the  Court 


1455 


STATUTES,  NOVA  SCOTIA. 


145(j 


thereon  in  case  titlicr  of  tlio  proprietors,  after 
due  notice,  nlial!  neglect  to  make  it. 

Hnntn-  v.  Itoiim,'!^.  S.  1).,  11.^ 

3r(l  R.  S.,  e.  58, 8.  '2«- 

*"  '2ml  R.  S.,  c.  60,  8. 10- 


3Pd  R.  S.,  c.  00- 


s.c  CERTIORARI,  G4. 


3rd  R.  S.,  c.  «2,  ss.  2,  3,  4,  and  «- 

Tilt  language  of  section  "i  is  as  follows :  "A'n  ry 
mate  lutirun  Iht  wjct  of  Ki  and  Ud,  Iiuikj  uh/i  fo 
do  a  reaxoniih/e  day's  irork;  xhall  hn  Uahh  to  ;)<  r- 
form  firo  days  lahor  at  a  j>oll-tax."     Section  .S  : 
'^  A//  7,ift/i  s   irfio-si    liumi'i  an   iwlitdid   in.   fin 
niisexmiHiit  roll  and.  «.<«.>■«'// /o*'  any   turn  onr 
.$•■200  (liy  Acts  ISO."),  c.  1,  s.  4,  reduced  to  .^KKt), 
Khali  III  llahli    lo  jirrform,  in  addif'on,  wrordimj 
to  the  folloirin;/  xmh  "  :   then    follows   a   scale 
graded  to  meet  the  exigencies  of  the  case  and 
the  circumstances  of  the  population.     Section  4 
provides  for  the  case  of   males   over  (iO  years  | 
holding  properly  over  .'*1,(XH),  and  section  G  of  j 
this   chapter   (02)   regulates  and    makes  liable  j 
"  y/co/'(  ;V)/   (■/(   Ihi    lianil-i  of  exi  rntorx,  adminix- 
Iralorx,  truxtn-x,  aijintx,  <iitnrdi(inx  and  n'onHn," 
where  property  is  over  .*>I,(Kl(>  in  value,  for  taxes  ' 
to   make  and   repair  highways.     Corporations,  i 
it  is  true,  are  not  named  in  section  (>  of  the  Act,  ■ 
but  the  intent  fif  the  Legislature  so  clearly  ex- 
pressed, to  tax,  not  persons  only,  but  property,  ; 
and  that  in  the  hands  of  trustees,  agents,  and  [ 
<itliera  in  fiduciary  relations,  brings  a  corpora- 
tion like  the  Bank  of  Yarmouth  clearly  within 
its  purview  and  within  the  scope  of  the  decision. 

//(  w  riii  Bank  of  Yarmoutii,  2  N.  S.  I).,  .-^08. 

3pd  R.  S.,  c.  63  and  c.  65- 

Stt  ASSIGNMENT,  II.,  -'. 

3rd  R.  S.,  c.  10— An  Act  to  authorize  the 

Construction  of  Railways  in  this  Province  — 

P,r  McCully,  J.— 

The  preamble  is  as  follows  ;  "  \\'h<rfn!i.i&c.,th(', 
constrw'tinn  ami  min'nti'nanrr  of  a  trnnk  line 
of  railnaij  from  the  harhor  if  Halifax  to  the 
frontier  of  New  Brunswick,  with  branch  lines 
cxtendinfi  to  the  harhor  of  Pictou  and  to 
Victoria  Beach,"  (a  place  in  the  direction  of  and 
beyond  Annapolis,)  "  mv7/  ijrealhj  ficilitate  the 
internal  trade  of  Xova  Scotia,  will  develope 
her  resources,  enlnri/e  her  revenue,  and  open 
more  frequent  and  easy  communication  with 
the   neighhourimj  Province  and  States: — " 

In   this  preamble   the   policy   and   object   of 
constructing  railways  in  this  Province  from  and 


to  the  points  <le«cril)ed,  are  clearly  set  fditli, 
and  the  railway  between  Windsor  and  Anna|.iili.s 
constitutes,  as  will  be  hereafter  seen,  a  scctiim 
of  a  branch  from  Halifax  to  Victoria  lieacli. 
Section  1  declares  that  "the  lines,"— in  tlic 
plmal  number — of  railway  to  be  constructed 
under  the  provisions  of  this  Act  shall  be  jiublio 
provincial  works,  &c.  Section  2  (U'signates 
the  line  to  be  first  completed  and  constiluu.s  it 
a  common  trunk.  It  was  to  liegin  at  tlie  iiarlinr 
of  Halifax  and  extend  northerly,  and  this  tnuik 
was  to  be  common  for  all  the  lines  to  be  there- 
after made  under  the  provisions  of  said  Act, 
It  is  the  trunk  line  for  thi^  \V.  &  A.  Railway  ut 
the  present  time.  .Section  3  provides  that  after 
the  comnum  trunk  shall  have  been  so  complctcil 
"tlie  railways," — in  the  jjlural  iiuml)er— "sludl 
be  carried  on  in  such  directions  as  .sliall  be  up- 
proved  of  by  both  Houses  of  the  Legislature,'' 
&c.  The  remainiler  of  the  Act  is  devoted  to 
details  jiroviding  for  the  manner  of  construct iiii,' 
tiiose  railways,  maintaining,  repairing  and  u.-iiig 
them. 

In  the  year  IS.'^ti  was  passed  an  Act  of  the 
Provincial  Legislature,  entitled,  "An  Act  to 
establish  a  more  eijual  and  just  system  ot 
assessment,"  wliicli,  amended  and  consolidateil 
with  other  legislation,  constitutes  chapter  4.')  of 
the  Revised  Statutes,  .Srd  scries.  Under  it  tlie 
present  assessment  is  made  and  sought  to  be  en- 
forced. Section  16  of  chapter  4.5  (being  a  trans- 
cri])t  of  section  4  of  chapter  20,  Acts  l.s.'itl, 
slightly  altered  in  some  jjarticulars)  exeniiits 
from  tax  "  the  Provincial  Railway  njlling  stotk 
and  railway  stations  and  lands  attached  tiieieti) 
or  to  the  railway." 

The  contention  o;i  the  nart  of  the  aiipellants 
was  that  the  railway  was  a  Ijranch  of  tlie  trunk 
line  described  in  18o4,  and  that  it  is  a  Proviiaiid 
Railw  iiy  "within  the  exemption  clause  of  cliapler 
4.")  above  mentioned."  On  the  part  of  tlie 
respondents  it  was  contended  that  this  railway 
being  constructed  by  a  company  incorporated  liy 
chapter  1,  Acts  of  I8(i6,  by  the  name  of  the 
Windsor  &■  Amiapolis  Railway  rompaiiy,  ami 
under  an  Act  passed  on  the  2nd  day  of  May, 
ISO,"),  and  the  agreement  set  out  in  the  Act  of 
1806,  it  was  not  a  Provincial  Railway  within  the 
exemption  of  chapter  4.5,  and  was  therefore  lialjle 
to  be  assessed  and  rated  as  the  property  of  an 
incorporated  company. 

To  entitle  the  appellants  to  the  exemptimi 
sought  it  mil  t  be  clearly  made  to  appear  tliat 
the  Windsor  iS:  Annapolis  Railway  is  a  Provin- 
cial Railway.  Now  the  agreement  set  out  in 
chapter  1  of  the  Acts  of  1866,  in  its  very  tir<t 
clause  refers  to  the  Act  oi  1865,  and  sets  out 
its  own  title  as  "  An  Act  to  provide  for  the  con- 
struction of  two  other  sections  of  the  Provincial 


1457 


STATUTES,  NOVA  SCOTIA. 


U58 


Hnilways."  .S'k  also  flmp.  7,  Acta  of  l%7.  In 
the  view  nf  tlic  Legislature  there  iicnxt  has  been, 
I  tliiiik,  anil  tlicre  in  not  at  present,  Iiut  one 
I'lovint'ial  Railway  in  Xova  Suotia,  tlu)\igli 
wiicre  referred  to  tin  trunk  and  branuhen,  it  is 
siil>se(|uently  spoken  of  as  tlie  Provinrial  Rail- 
ways, composed  of  a  trinik  running  northwardly 
with  two  braiu-'hes,  one  ruiniing  from  Truro  to 
Pictou,  the  otlier  from  Windsor  towards  Vic- 
toria Reach,  and  the  Act  of  lH(i,"»  makes  provisif)n 
"  for  the  construction  of  the  followin;,'  sections," 
(using  the  language  of  the  1st  clause):  "of  tiie 
IVovinci.'il  Railway,  that  is  to  say,  from  Truro 
to  tlie  boundary  line  of  New  Ri'unswick,  and 
from  VVindscjr  to  Annapolis,"  etc.  (^in  language 
make  it  clearer  that  the  Windsor  &  Annapolis 
Railway  is  a  section  of  the  Provincial  Railway? 
County  of  AmmiioUx  v.  W.  li;  A,  li'y  Co., 

•-'X.  S.  "l).,.S97. 

-SV.  RAILWAYS,  •■>  and  IS. 

3r(l  R.  S.,  0.  10,  s.  n- 

Dofcndants  were  empowered  by  Statute  to 
inter  and  take  possession  of  lanils  recjuired  for 
tlie  track  of  their  railway,  station,  kc,  the 
lands  taken  to  be  laid  otF  by  metes  and  bounils, 
and  a  ])lan  and  (lescri])tion  of  it  recorded  in  the 
Registry  of  Deeds  for  the  county  where  the 
land  was  situate.  The  Statute  prescribed  the 
extent  of  land  to  be  taken. 

//'/'/,  that  the  company  could  not,  by  making 
a  survey  and  tiling  a  description,  acNpiire  a  title 
to  private  property  lying  beyond  the  statutory 
limits. 

DeWolf  V.  Punrhanl,  3  X.  S.  D.,  224. 

3r(l  R.  S.,  c.  10,  ss.  44-59- 

i^te  RAILWAYS,  2. 

3r(l  R.  8.,  c.  72,  s.  2- 

"  The  Governor  in  Counril  at  the  rtquent  of 
•my  of  the  propreitor»  of  any  inurth,  xiramp, 
or  mindow-land  may  appoint  am  or  mori  Com- 
miasicintrs  of  Seirers  for  the  Connty,  Ton-n^hip, 
w  place  where  mich  lauds  lie,  u-ho  shall  he  sn-0)-n 
inlo  office  hy  a  Justice  of  the  Peace,  and  such 
-wenrinij  shall  he  entered  in  the  Commissioner's 
Book  of  Record,  which  shall  he  erielence  of  the 
/net,  and  the  Commissioners  shall  appoint  a 
Ckrk;  who  shcdl  he  sirorn  into  office  hy  any  of  the 
Commissioners,"  d-c. 

Plaintiffs,  as  Conimissioners  of  Sewers  for  the 
'listrict  of  B.  and  M.,  brought  action  against  the 
ilffendant  for  certain  dyke  rates  assessed  on  the 
wners  of  marsh  lands  in  that  district,  for  con-  i 
^inictiiig  and   repairing   necessary   dykes,  etc.  I 
r>efendant    pleaded    that    plaintiffs    were    not 


Commissioners  of  Sewers  for  that  district.     The 
I  Act  regulating  the  appointment  of  such  Com- 
missioners  proviiled    that    on    lieing   appointed 
they  should  be  swoin  into  olfice  by  a  Justice  of 
the    Peace,  and   that   such  swearing  shoulil  1)0 
entered  in  the  Comuiissioners'  Rook  of  Record. 
It  af)pearei'  that  oidy  one  of  the  |)IaintitfH  had 
full:!!od    this   reijuirement,    but    all    threi^    had 
acted  as  Conniiissioners  for  several  years. 
I      III  Id,  that  in  thus  directing  as  to  the  entry  of 
the  sweating  it  was  not  intended  by   the  l.egis- 
'  lature  to  shut  out  all  other  ])ioof  of  (|ualitication, 
;  and    that  there   was   sufficient   evidence   aside 
'from   this  to  afford  the   presumption   that  the 
plaintiffs    were     legally    a|())ointe(l    and    duly 
authorized  to  act  in  this  asscsstnent. 
I  Jiaker  et  at.  v.  McFarlaw,  2  X.  S.  D.,  94. 

3nl  R.  8.,  €.  72,  ss.  2,  3,  .i,  7,  and  12- 

The  2nd  section  empowers  "the  (iovernor  in 
Council  to  appoint  one  or  more  Conniiissioners 
of  Sewers  for  the  County,  and  they  are  required 
to  be  swf)ru,  the  swearing  to  be  entered  of  record 
in  manner  prescribed,  which  shall  be  evidence 
of  ihc  fact  ;  and  the  Cominissioneis  shall  ap- 
point a  clerk,  who  shall  be  sworn,  and  the 
sweari.  >,'  entered  of  record  in  manner  prescribed, 
as  ev  deuce."  The  '.\vA  section  authorizes  X.\\r>- 
thirds  in  interest  of  the  proprietors  to  select 
one  or  more  Coininissioners  to  carry  on  any 
work,  &c.  ;  they  may  add  to  or  diminish  the 
number  of  Conimissioiiers  so  selected,  or  super- 
cede, (fee  ,  and  the  choice  or  dismissal  shall  be 
in  writing,  recortled  in  the  prescribed  manner." 
By  the  7th  section  the  "  Commissioneis  "  so 
chosen  may  assess,  &c.  Hy  the  12tli  section, 
"all  fines,  rates,  and  assessments  shall  be  re- 
covered by  and  in  the  names  of  the  '  Conunis- 
sioners '  so  appointed  and  chosen,  with  costs,  as 
if  the  same  were  private  ilebts."  The  Act  is 
loosely  and  ungrammatically  penned,  and  "  rel- 
atives" have  in  many  places  no  clear  relation  to 
the  "antecedents"  to  which  they  are  probably 
designed  to  defer.  Singular  and  plural  numbers 
iire  also  blended  together  in  confusion.  On  the 
whole,  however,  we  think  that  the  selection 
referred  to  in  the  .Srd  section  has  relation  to 
"a  Commissioner  or  Commissioners  appointed 
by  the  Lieutenant-Oovernor,"  and  that  if  one 
only  be  so  appointed,  the  selection  must  be  con- 
fined to  that  one,  although  many  other  provi- 
sions of  the  sections  will,  in  that  case,  there- 
fore be  inoperative.  We  think,  also,  that 
wherever  the  appointment  by  the  Lieutenant- 
Oovernoi'  is  of  one  only,  the  word  "  Commis- 
sioners "  occurring  in  sections  7  and  12  must  be 
read  '  Commissioner '  in  the  singular  number. 
We  think,  also,  that  the   word  "Commission- 


1459 


STATUTES,  NOVA  SCOTIA. 


i4f;o 


CIS,"  in  section  12,  relatively  to  the  case  before  8rd  R>  8.»  C.  83  — 

m,  which  presontn  na  ii  fact,  tlmt  *\i\»  pliiiiitiff  Uoiu'uUmI  iiy  Duiuinioii  Acts  IST.'J  c.  40,  so  fm 

was  selcctfil  C'dinniiMsiontT  of  tlie  Villagf  Dyke  as  it  relates  to  tiic  rt'j<ulation  or  insiHvti.m  of 

l)y  two-thirds  of  the  proprietors  thereof,  might  "  fish  and  oil,  tlour  and  meal,"  itc. 


ho  read  "  ("ommissioner,"  and  that  the  words 
"n])pointed  and  chosen"  must  lie  read  in  tlie 
sense  of  participles  of  the  verhs  "select"  and 
"choose,"  which  are  used  in  the  thiril  section. 
We  are,  therefore,  of  opinion  tiuit  the  action 
can  l)e  inaintaineil  liy  Davidson  ahmo,  although 
at  tlie  time  of  liis  selection,  and  wlien  the  work 
was  (lone,  the  defendants  were  named  with  him 
in  tlic  Executive  connnission. 

Dariilion  v.  Lairri  iif  if  al.,  1  N.  S.  D.,  3'2. 

3rd  K.  S.,  0.  M,  8.  24— 

(Founded  on  7  &  H  Vict.  c.  112,  s.  1")) 


Su  Acts  1S(U,  c.  Si,  s.  450,  &c.,  siijiffi. 
Tin  City  of  I[iilifiix  V.  Ciiiniliniliiiiii, 

1  K.  S:*..,V^. 

SrdK.  8.,  c.  8ft,  s.  14- 

"  //"  iitn/  On  rti  I  r-i  on  In  liai/  of  llti  'J'lurii'liij: 
or  any  other  pi-rwu  ■iliull  j'nl  wjiiriinil  hy  niiij 
l>rori.ali)iii  niidir  this  Chajili-.r,  siirh  OrerHftrt  or 
/iiTiuii  mriy  nppial  to  tin:  next  Si  tsioiix  to  li-  liiUI 
for  fhr  County  irhm  tin  Toiriiihip  /i  or  ih 
pernon  tihaU  rrsidc.,  and  tht  SLiiionx  xhnll  hnr 
and  detirmuie  tht  mme  ;  but  in  caien  of  dix/miiil 
Hftthmintx  an  ajiprat  xlinll  I"  from  thi-ir  derision 
to  thi:  mxt  term   of  tht   Sn/irtrnt    Court  in   flu 


"  That  the  award  of  flit  Jnsfiox  shall  l,t  fnal    County  or  to  n  Jadijt  at  Chaml>trx." 
and  rourhmri'."  Hild,    tliat    no   appeal    lies    directly    to    tlie 

Tlieso  words  do  not  wrest  from  tlie  Supreme  Supreme  Court,  from  tlie  decision  of  twu 
Court  its)  jurisdiction  hy  nrfiorari,  and  do  not  JuMiicos  ordering  the  removal  of  a  i)auper. 
apply  wliere  tlie  rules  of  natural  justice  have  />, ,.  Hliss,  ,J.— If  even  tlie  aiipeal  had  coiuf 
been  plainly  violated,  as  if  a  party  were  con-  regularly  before  this  Court,  the  duty  of  tlic 
deiniied  on  insutficiciit  notice,  or  without  being  (ji,\\n  is  not  to  try  the  case,  but  merely  to  say 
heard  at  all.  i  whether  on  the  evidence  given  before  the  two 

Criiirhy  V.  Andirson,  1  N.  S.  D.,  3S5.    Justices,  their  decision  was  correct.     We  luivf 

\  no  power  to  take  new  evidence. 
I  Ortrxttri  of  tht  Poor  for  Oreenticid  v. 


von- 

I'lnn. 


3rd  R.  S.,  c.  4.1,  8.  '24  - 

.S"  ;  JL'8  Vict.  e.  112,8.13. 

3rd  K.  S.,  c.  i:i,^.i9  — 

The  Stipendiary  Mai/istrntt  at  Halifax  .  .  . 
•ihall,  irithin  tht  County  of  Halifax,  .  .  . 
hare,  and  extrri.ie.  tht  samt  juri-tdirtion  as  i 
ftrrtil  hy  this  rhnpti  r  on  tn-o  Justin  s  ofth 
The  jurisdiction  of  the  Stipendiary  Magistrate 
uniler  3rd  Revised  Statutes,  c.  73,  is  concurrent 
only  with  that  of  two  Justices  of  the  Peace  and 
not  exclusive. 

In  this  case  the  writ  was  signed  by  and  made 
returnable  before  the  Stipeailiary  Magistrate, 
but  two  Justices  of  the  Peace  were  substituted 
for  him  on  the  trial  by  the  request  of  the  defen- 
dant. 

Htld,  that  the  irregularity,  if  any,  was  cured 
by  the  assent  of  the  defendant. 
Andtrxon  v.  Mason,  1  X.  S.  D.,  1 ;  2  Old.,  369. 

3rd  R.  8.,  c.  82,  s.  1— 

To  an  action  on  a  promissory  note  defendant 


Ovtrxters  of  tht  Poor  for  Goihtii,  1  Old.,  09."). 

3rd  R.  8.,  c.  91 -Cf.  Sth  R.  8.,  C  37- 
Stt  STATUTES,  IMPERIAL, 

1  &  8  Vict.  C.  101,  8.  3. 

3rd  R.  8.,  c.  95,  s.  5,  8  and  18- 

Stt  JIDOMEM,  1. 

3rd  R.  8.,  c.  112,  s.  23-Cf.  5th  R.  S.,  c. 

89,  s.  25— 

"  When  any  rtal  estate  shall  he  dtvistd,  to  any 
person  without  any  words  of  limitation,  swh 
derise  shall  lit  construtd  to  pass  tht  ftt  sinipit  or 
other,  the  whole  e'ltate  or  interest  whirh  tk 
testator  had  power  to  dispose  or  hy  will  in  sitfh 
real  estate,  unless  a  contrary  intention  shall  appKir 
by  the  will." 

Quaere,  whether  this  section  is  not  retro- 
spective. 

In  the  Act  concerning  wills  passed  in  1840 
pleaded  usury.  The  note  was  expresserl  to  be  (c.  2."))  and  borrowed  almost  literally  from  tlic 
for  the  sum  of  £40,  but  the  evidence  went  to  |  English  Act  of  1838,  it  was  provided  by  section 
show  that  defendant  actually  received  only  £38,  j  30  that  it  should  not  extend  to  wills  made  be- 
although    he    paid    interest    upon    the    larger  '  fore  Oct.  1st,  1840  ;  but  this  limitation  has  not 


amouiil  for  the  space  of  two  years, 

Held,  that  the  transaction  was  usurious,  and 
that  plaintiff  could  not  recover. 

Hutchinson  v.  Dill,  2  N.  S.  D.,  448. 


been  repeated  in  any  of  the  third  series  of  the 
Revised  Statutes. 

A  mere  devise  of  lands,  previous  to  the  enact- 
ment of   the  above  section,  was  insutiioieut  to 


14G1 


STATUTES,  NOVA  SCOTIA. 


1462 


pass  a  foe  ftiinpU;,  Imt  if  tlio  tostatrir,  in  iimkiiig 
tin;  (lovise,  at  the  Hame  IIiir'  iiniMiHt'd  ii  uliai'gu 
upon  tlic  (leviHcu,  tlicii  tlio  (w  woulil  pan«. 

Chisholm  V.  Marlfonnill,  \  \.  S.  1).,  137. 

3rdR.  S.,  c.  115,  88.  2 -lU- 

Hchl,  that  these  8cction8  lire  directory  for  the 
iiiiiHt  part. 

SmiiU  V.  Mrhar.  fl  al.,  3  \.  S.  !>.,  11(1. 

»rd  R.  8.,  c.  115,  8. 3  and  10 -CT.  5tk  R.  S., 

c.  124,  a.  9  - 

"  Whin  (I  jiiilijinint  fifty  hri'n  ko  r<;iisf,'ri'l  for 
Ihi  /itrlod  of  one  yiar,  and  no  livy  /ia»  liuv  lUcuh 
on  (he  real  < state  hound  thereby,  any  jmhjminl 
rndl/or  irhote  jtidinnrnt  hit'*  h'ln  snlmiini  )il/y 
riijiili'rcd,  may,  Inj  <i  irrillut  notic,  rifinir^  tin 
]irior  jndijmint  creditor  to  levy  on  Ih  real  entatf 
v'ithin  thr«i  montlit.  The  Shi  riff  shall  diUra-to 
thi  jiurchasir  a  diid  of  snih  lands,  irhich  shall 
III  snff'rii.nt  to  ronriy  to  thf  jinrrhasir  all  thr 
interest  of  the  difindant  in  the  lands  tlurtin 
described,  mibjectto  prior  incumbrances." 

Tiii?  notice  is  not  indispen.sahle  to  ynalile  the 
SiieritT  to  give  a  valid  deed  where  he  .«elU  under 
a  second  or  third  judgment.  The  general  scope 
oftiie  Act,  and  the  language  of  section  10  i.s  j 
inconsistent  with  the  idea  that  sucli  notice  is 
indispensalile.  Tlie  right  of  a  second  mortgagee 
to  foreclose  was  recognized  hy  the  Court  in 
Kaster  sittings  in  Barss  v.  Chase,  March,  ISO'i, 
although  the  right  may  be  .subject  to  fjualitica- 
tion,  and  can  in  no  wi.se  affect  the  interest  rif  a 
fust  mortgagee.  A  second  or  subsecjuent  judg- 
ment creditor  can  also  sell  the  land  of  the 
(lefendiint,  whose  interest  will  pass  to  tiie  pur- 
chaser, "  mOjjtct  to  ]irior  inrumbrann  s." 

Smith  et  al.  v.  Smith  et  al.,  -J  Old.,  Mi. 

3rd  R.  S.,  c.  118,  s.  3-  i 

See  STATITES,  IMPERIAL,         I 

19  &  20  VIrt.  c.  07,  8.  3. 

j 

3rd  R.  S.,  C.  119,  s.  O-Cf.  5tli  R.  S.,  C.  92, 

s.  10— 

"  The  expression  '  /////  of  salt '  shall  include  bills 
of  sale,  assii/nnients,  A-c. ;  but  shall  not  include 
the  followiny  docttmentu,  that  is  to  say,  assiijn-  \ 
mtntsfor  the  i/eneral  benefit  of  the  creditors  of  the 
jvi'son  makin;/  or  f/irini)  the  same,  mai-^-iaije  .st^ 
llements,  «It." 

A  preferential  assignment,  no  matter  how  slight 

or  meritorious  the  pieference  may  be,  is  not  an 

"assignment  for  the  general  benefit  of  all  the 

creditors,"  within  the  meaning  of  this  section. 

niack  V.  Sawyer,  2  Old.,  1. 

See  STATUTES,  IMPERIAL, 

IS  ii  19  Vict.  C.  36. 


3rd  R.  S.,  c.  124- 

/'<;•  .Sir  Wm.  Young,  ('.  J.— 
We  have  a  facility  and  advantage  in  e(|uity 
cases  in  this  Court  which  they  do  not  enjoy  in 
j  Kngland.  Although  the  Chancery  Courts  there, 
'  under  recent  enactments  in  the  years  IS.IS  and 
l.S(t,S,  may  call  in  the  aid  of  a  jury  to  settle  dis- 
puted facts,  it  is  rarely  resorted  to,  because  it 
is  alien  to  tlio  habits  of  thouglit  and  the  pre- 
possessions both  of  Bench  and  Uar.  Itut  here 
it  is  the  familiar  practice,  and  1  must  take  occa- 
sion to  reiterate  my  strong  conviction  and  desire 
in  the  interest  of  suitors,  that  the  practice  of 
the  Knglish  Courts  of  Chancery  should  never  be 
intioduced  into  this  t'ourt,  except  by  legislative 
enactment,  when  our  own  Common  Law  prac- 
tice will  avail.  Under  the  Rev.  .Stats.,  c.  I'J4, 
and  the  Acts  of  iHOfi,  c.  11,  equity  causes  shall 
contunie  to  be  tried  liefore  a  jiu'y  to  whom 
issues  of  fact  shall  be  submitted."  How  is  their 
verdict  when  rendered  to  be  treated,  ami  on 
what  principle  is  a  new  trial  to  be  granted  or 
withheld ':  In  my  opini(m,  precisely  on  the 
same  principle  as  on  the  Common  Law  side  of 
this  Court. 

Hanks  it  al.  v.   ll7/>0((,  R,  K.  D.,  '-MO. 

3rd  R.  8.,  C.  124,  8.  43- 

Wlien  either  party  in  a  cause  has  invoked 
equit}',  whetlicr  by  plea  or  ajjplication,  so  far 
as  my  e.vperience  goes,  this  Court  has  hitherto 
granted  all  the  relief  to  be  obtained  from  a 
Court  of  E(juity  previous  to  the  enactments 
contained  in  c.  1'24,  Revised  Statutes,  sec.  4.S. 
Hank  of  Xora  Scotia  v.  Forman  et  al., 

3N.  S.  ]).,  154. 

3rd  R.  8.,  c.  124,  ss.  .11  and  53 -Cf.  3th 

R.  S.,  c.  104,  O.  LL,  R.,  1  and  5- 

The  power  ovei-  the  real  estate  of  infants, 
conferred  by  chapter  124,  which  was  first  passed 
in  the  Chancery  Abolition  Act  of  ISuo,  far  ex- 
ceeds any  ])owcr  that  has  ever  been  exercised  in 
England. 

//(•/(/,  that  the  discretionary  power  of  the 
Court  to  order  a  sale  was  not  determined  by 
the  appointment  of  a  guardian,  and  that  where 
the  guardian,  wIk)  was  the  mother  of  the  infants 
was  opposed  to  the  sale,  and  neglected  or  refused 
to  find  security  as  required  by  3rd  R.  S.,  cap. 
124,  see.  51,  the  Court  had  power  to  remove 
such  guardian,  and  substitute  in  her  stead  a 
suitable  person  as  next  friend  to  file  the  neces- 
sary bond  and  effect  the  sale. 

In  re  Estate  of  Lawlor,  2  N.  S.  I).,  153. 

8rd  R.  8.,  c.  127,  ss.  11  and  12- 

S.  11.  Enacts  that  "administration  of  an 
intestate  estate  shall  be  fjranted  to  some  one  or 


UO:} 


STATUTES,  NOVA  SCOTIA. 


14G+ 


iiirin  (it   ihi  /ni-'oii'i  hii-iiiinjhr  mnitioiitil,  iiml  attorney,  thoiigli  duly  utlvtrtiHfil,  lunl  in   tliu 

Ihii/    "hdH  In    riMp,i'tlr,h/  oilitlid   thinio  in  Ihi^  L'omt    Iicmimo    in   tliu    imvmciu'i'   of  lliivc   |MrH(inH 

fn/hirlii'i  ofilir  :—Fli:i/,  th.  iriiloir,  or  nixl  of  (inly,  ami  with  no  mil  (diniii'tilidii,  Mlidiild  liiml 

kill,  or  liotk  11.1  /hi   Jiiiliji   of  I'rolinli   may  think  the  widow  niul  cliildri'ii  of  thu  dfciMiHed  and  all 

fl.     If  Ihiij  ilo  iiol  i-uliiiilftrily  lab.  or  nnoiiurv  \\\n  tTi'ditorH  ;  lait  tlio  roniody,  if  runicdy  inn  Im 

aihui>ii'<lrali<iii  Ihy  xlml/ In  rihil.     Siromlly,  if  had,  nuiHl  he  with  tliu  LcgiMlaluio.     Knowing, 

irithin  ffii  ilayx  nftir  Ihc  lilation  Ihnj  ilo  not  /iro-  an  wo  do,  thi'  hahits  of  tin;  I'ountiy,  it  wdiiM  \:i- 

mil  to  laki   (ul  mini  "I  ml  ion  the  Jiiil<j<  of  Prohah.  too  dangfiims,  I  think  to  hold  such  a  Half  ///<f> 

may  rommil  it  to  ouv  or  more,  of  the  jirinei/ial  /aWo  void,  liy  cruatin),' or  ri'(|uiringclicck»  which 

eriilitriri,   if  com/ II  tint  ami  irillinij  to  ninli  r/akr.  the  Act  dot'H  not  iiui'post!. 


Iht  trnsi,  or  to  any  othi  r  /»  rxon  on  the  a/i/iUfitlion 
of  one  or  more  of  the.  vreililor*,  iirond  to  In  .iiifh, 
rw  Ac  shalt  think  ft.  Thirilly,  if  th'  itinasnl. 
in  re  a  marvinl  iroman,  ailmiiiiitra/ioii  of  her 
(state  ■*hall  lie.  ijranled  to  htr  hutliand,  <lr,,  il-c." 


Mr /.(Oil  V.  liilliiH  it  at.,  1  N.  S.  I).,  •.',•(7. 

3r(l  It.  8.,  C.  127,  H.  31- 

"  Ereriji'iinreijance  hkkIh  lunlirthe iiriivi.ti'in.t 
of  this  rhfipter,  and  reijixterid  in  the  C'nunt'j 

S.  1:].  Kuacts  that  "  in  ea.iii  -ineh  of  the.  next  ^i-here  the  lundK  lie,  shull  In'  luken  "s  premiiii,i- 
of  kin  an  shall  he  eonsidind  liy  the  Jndije  lie.-<l  (i,-,.  ,.,-,;i,.,i,;,  that  all  the,  jirnreedinijs  mi  n-liieh 
qiialijled  til  ad  mi  nisi  rati  in  any  (-"tali  .thdl  ih-^ire  ^^j,,  ,y,^,j,(,  is  fnnnded  n'ere  rii/hthj  had." 
it,  the  Jniliji.  may  assoeiate  leith  him  in  the  ad-  wiifcc  a  tluud  of  land  made  hy  au  adniini!<tr,i- 
miniHlratiou  snrh  person  m  may  think  Jit  ami  „„.  „|„l^,,.  ,i  Hccumi!  to  sull  and  n^gislurud  in  the 
pro/nr  fir  thai  /inrpo.ie."  County    wheru  thu  lamln  lay    sul  out    that  lliu 

On    tht!  question  whether   the  alternative  in    |,i.ii„titv  was  administrator  and  the  ileed  wa»  put 
the  seeond  i)aragrai)h  of  s.  II  is  discretionary,    jn  (.yidence 
or  whether  the  Judge  can  only  act  on  it  in  the        //,  A/,  tlmt  this  was  presuiniitive  evidence   if 


event  of  no  creditoi'  lieiiig  found  coni])etent  ami 
willing  the  Court  was  e(|ually  divided. 

.Johnstone,  R.  .T..  and  Dodd,  .1.  holding  that 
the  appointment  was  discretionary  with  the 
.Judge  of  IVoliate,  and  DesHarres  and  Wilkins, 
.J.J.,  liolding  that  the  princijjal  creditor,  being 
first  applicant  was  legally  entitled  to  ailministra 


plaintitl'  lieing  administrator. 

Smith  v.  Mel.ian  il  ft/.,  1  N.  S.  ]).,  ;U0. 

3rd  R.  S.,  C.  I'll,  H.  10 -Cf.  5tli  K.  8.,  e. 

100,  8.  72- 

"  Xiithinii  in  the  preredlmj  section  runtained 


tion   in   default   of  acceptance   by   the   parties  I  «''"''  "/'"'^  ''"'''•"  ''""  "«  """•'.'/".'/'■^  '>f  ^•'■"\"' 
primarily    entitled,    and    that    the    .Judge    of  1  i^'-^'y'|  ''''<«f';; '^'^'^^  •'"'l^'";;''';'  ';;^'^^^'';;;;,;,'^ 


I'robate   had   n 
him. 


iliscrelion,  but  must   appoint 


the  lifetime  uf  the  deeeiined  pernon,  so  far  an  the 


been  realized ;" 


nine  of  the  ])ri>pertii  so  mortijai/ed  nr  himh 
In  re  E--^tate  ofBraim,  1  X.  .'^.  1).,  .S90.  j  hunnd  hij  swh  jmhiment  Hindi  eHend  ond  no 

more,  leavinrj  the  mortijaijea  ur  iudijment  ereiH- 

tur  at  Ulicrty  to  claim  as  any  other  creditor  fur 

3P(1  R.  8.,  C.  127,  S.  28—  I  ^^^^^  i,„i„ure  that  may  remain  dne  to  him  n/ler 

"  Eri  ry  linnse  shad  he  entered  in  the  h'u/is-  \^j^^  ^.^^^^^^  of  .vtrh  property  or  lands  shall  have 

Irar'.i  hook,  and  a  copy  thereof  duly  certijied  hy 

the,  Judije  or  Jiei/istrar  shall  lie  reijistered  in  the 

office  of  the   lUylslrar  of  Deeds  for  the  County 

or  Di-^trirt  in  n-hieh  the  real  i.itati   may  lie,  and 

snch  artifed  copy,   or  a  copy  thereof  from  the 

ReijiMry  certijied.  under  the  hand  of  suck  Reijistrar 

of  Deeds,  shall  he,  eridenct  of  such  license  in  all 

Courts,  icithout  j'urther  proof. '' 

Per   Young,    C.  J. — Where   the   license   has 


See  PROBATE  COURT, 


Srd  R.  S.,  C.  128,  8.  27- 

"  The  constahle  to  irhom  the  execution  shall  lie 
deltrered  shall  proceid  jhrthirilh  to  lecy  J'or  tk 
■w.m  due,  and  shall  lake  sufficient  ijoods  of  the 
party,  aijainst  whom  the  execution  is  issuiil,  to 
■•<atisfy  the  same,  and  shall  came  an  advertisemmt, 
been  didy  granted  under  the  '26th  section,  it  is  i  ,;,,„.;,;7„„,^  /^g  ,/oo'/.s  taken,  and  specifyiwj  the 
safer,  I  think,  to  hold  the  registries  under  the  I  ^.^^^^  and  place  of  the  sale,  to  he  posted  up  in  tin 

or  more  puhlic  j^laces  in  the  Township  or  place 
wherein  such  sale  is  to  he  held,  at  least  Jive  dny.i 
hejore  the  time  appointed  for  snch  sale." 

An  execution  was  issued  by  two  Magistrates 
on  a  judgment  after  the  amount  sued  for  liaJ 
been  paid  to  the  judgment  creditor,  and  suhse- 


28th  section  as  directory  only,  very  proper  to  be 
done,  but  not  indispensable  to  the  title. 

McLeod  V.  Gillies  et  al.,  1  N.  S.  T).,  277. 

3rd  R.  8.,  e.  127,  8.  32- 

(Sale  under  license  of  Probate  Court) — 


Per  Young,  C.  J,— It  is  certainly  a  strange    quent  to  the  death  of  the  creditor, 
thing  that  a  sale  by  the  clerk  of  the  plaintiffs  \      Held,  that  notwithstanding   these  facts,  the 


14G5 


STATUTES,  NOVA  SCOTIA. 


UG(i 


<'iiii.stul)li!>t  to  whom  tlio  execution  \vii.-(  iliiuctiMl, 
were  jiistitied  ill  Ifvyiiiy  iiml  Moiling  tliuieiiniUi-, 
A  mere  notice  from  iinyhoily  of  un  ullegeil 
defect  in  un  execiiliun  U  nut  sutUcicnt  to  arreat 
u  mile  l)y  the  coiiMtulile. 

Mrl'lmil  V.  Mi'KiiiiioH  itnl.,\  N.  S.  1),,  Kjs. 

3rd  K.  8.,  e.  I'is,  s.  »;)- 

l!y  section  '_'.')  of  cluiptcc  l!»   "  AiipeuN  ffcir. ; 
the  (leciHion  of  the  Justices  for  any  iieualty  or 
forfciiture  incurred  under  said  chapter  hIiiiII  lie 
granted  in  the  nanie  manner  iih  in  the  case  of 
tiuiiimary  trials,"  &u.    "And  in  case  of  vtrtiorari 
instead  of  hail  re((uired  in  such  cases  (see  chap- 
ter 14S),  the  same  liond  shall  lie  given  as  in  ordi- 
nary ajipeals.   And  in  case  of  granting  a  new  trial, 
tiie  Court  may  impose  such  terms  on  either  party 
as  may  liest  promote  the  ends  of  justice."    "By 
section  "J.VJ,  chapter  l.'i4  ;   "  It  shall  lie  the  duty 
of  an  appellant  in  all  cases,  whether  plaint  ill'  or 
defendant,  to  enter  the  cause  for  trial  or  argu-  i 
uient  and  give  notice  of  trial."    And  liy  section 
'-'.")"  :   "In  a|.ipeal  causes  the  appellant  shall  cause 
his  appeal  to  lie  entered  on  the  docket  of  sum- 
mary causes,   and   in   case  he  shall  neglect  to  , 
enter  the  same,  the  original  judgment  shall  lie  I 
altirmed  at  the  instance  of  the  opposite  party 
with   costs,"     liy  section  "i.iS :    "In  all  causes 
hrought  up  by  appeal  and  contested,  the  Court 
siiall  try  the  same  anew."    The  condition  of  the 
appeal  lioud  is  as  follows  :  — "  If  tiie  appellant  at  • 
the  next  sitting  or  term  of  the  Supreme  Court  for  ( 
the  County  shall  duly  enter  and  prosecute  his 
appeal,  &e.,  or  render  the  body  of  the  appellant 
and  pay  the  costs,  &c. ,  or  shall,  previous  to  tiic 
Krst  day  of  the  sitting  of  such  Court,  pay  the  \ 
full  amount  of  judgment  and  costs,  then.  Sic."  I 
The  first  point  to  be  ascertained  in  this  case  is,  ' 
what  was  the  effect  of  the  appeal  thus  demanded  ( 
hy  defendant  and  perfected  ?     Hy  the  uniform  | 
piuctice  in  this  Court,  when  an  appeal  is  taken 
from  the  decision  of  Justices  of  the  I'eace  in  cases  ' 
of  summary  trials  and  perfected,  the  judgment 
below  is  thereby,  j'ywo  facto,  vacated,  and  the 
case  stands  for  a  new  trial.     And  by  section  33 
of  ciiapter  128,  referred  to  in  section  '23  of  chap- 
ter 19,    "  the  Judge  before  whom  the  trial  de 
noro  takes  place  shall  confine  the  parties  to  the 
particulars  and  set-off  filed  before  the  Magistrate 
and  shall  permit  no  amendment  thereof."    In 
other  words,  there  shall  be  no  new  cause  of  ac- 
tion or  defence  allowed  on  a  second  trial. 

Hand  v.  Rockwell,  2  N.  .S.  I).,  199. 

3rd  R.  8.,  c.  134,  s.  3- 

"  Provided  ulwai/s  that  nothiwi  in  thix  section 
contained  sha/l  operate  to  prereiit  a  defendant  no 
amsted  from  negativiwj,  under  affidavits  before  j 


ti  Jiiiliji  or  (^'iiiniiii-'iliiiii  r,  Ih'  furl  of  hi-t  In  iiiij 
iiliDiit  lit  hari  Ik,  I'rovince  ;  uiid.  ii/ion  such 
ajlii/ftrii,  if  ihi  mini  i<  not  ronlrndiriid  on  the 
/mrtofthr  plaintiff,  siirh  Jwlije  or  Commitiionir 
xhall,  ill  hii  diirri  lion,  iinlir  hii  iVurhiinji  from 
rilsliidl/  irilh  or  irilhonl  runts'" 

(^htaere,  whether  the  defendant  can  also  nega- 
tive the  plaintitl's  cause  of  action,  tiie  Statute 
only  enabling  him  when  arrested  to  negative 
un<ler  allitlavit  the  fact  of  his  being  about  to 
leave  the  I'rovince. 

O'Donnill  V.  flonnjinau,  I  N.  S.  !>.,  1(J1. 

3rd  H.  8.,  c.  134,  8.  20- 

'•  It  nliiill  hr  hmfid  fur  (I  Court  or  Jmlijn  un- 
ihr  siirli  ti  riiis  an  to  rusts  or  utltcrwisi:  us  thnj 
sliidl  think, lit,  lU  iini/tiine  icithin  one  >jmr  after 
Jhinl  judgment,  to  let  in  the  defendunt  in  any 

iictiiill  iir  ilpinid  til  difrnd  the  siUiie,    11)11111   iiii 

<ippUrntiiin  siijipiirteil  liij  satisfiirtorij  (qHilitvits 
accounting  for  the  non-appeurunce,  and  diselos- 
inij  a  defence  upon  the  merits  vith  the  purtien- 
hir  i/roiiiids  thereiif,  iiml  offlilitcits  shall  not  he 
rereiced  in  reply,  unless  the  Court  or  it  Judge 
shall  otheririse  order." 

Held,  that  under  this  section  "  verily  believes' 
alone  in  an  athdavit  is  nut  sullicicnl,  th.it  the 
deponent  must  have  personal  knowledge. 

Malont  V.  Diujijan,  1  Old.,  (J97. 

3rd  K.  8.,  e.  134,  s.  38- 

"  The  Hon-joiiidtr  of  a  pi  r ion  as  plaintiff  in 
any  action  shall  In.  a  variance  to  he  aiiuiidid  al, 
or  al  any  lime  hifort,  the  trial  hy  the  Court  or  a 
Jndije,  if  it  shall  appear  that  such  non -joinder 
icas  not  for  the  purpose  of  ohtaiuimj  an  nndut 
adrantaije,  and  that  injustice  would  not  he  done 
hy  amendinij,  anil  that  the  omitted  party  consent 
to  he  joined  as  a  co-plaintiff." 

Per  Johnstone,  K.  J.  — I  think  this  section 
only  applies  to  cases  where  the  omitted  person 
is  a  party  with  the  plaintiff  on  the  record  to 
make  out  a  common  right  to  the  matter  claimed 
in  the  suit,  and  of  whose  non- joinder  it  was 
competent  to  the  defendant  to  have  objected  at 
or  before  pleading. 

Wheelock  v.  Morrison,  1  N.  S.  1).,  345. 

3rd  K.  8.,  c.  134,  ss.  51,  32  and  33— 

Provides  for  trials  of  causes  after  writs  issued 
by  leave  of  a  Judge  in  this  Court  with  plead- 
ings, and  also  that  a  (|  uestion  of  law,  after  writs 
issued,  may  be  stated  for  the  opinion  of  the 
Court  without  pleading.  This  seems  to  be  a 
consolidation  of  the  .Statute  of  \Vm.  4., 
though  not  exactly  a  transcript.  By  sec.  251, 
chap.  134,  Practice  Act,  a  case  entered  into  by 
real  parties,  plaintiff  and  defendants  and  signed 


14G7 


STATUTES,  NOVA  SCOTIA. 


r.468 


by  counsel,  may  be  filed,  entered  and  agreed  upon 
without  a  writ,  and  judgment  and  execution 
follow.  The  15  &  16  Vict.  chap.  70,  seems  to 
have  been  the  basis  of  our  enactment  on  this 
point,  but  they  materially  differ  in  several 
retipects. 

.■itimpmi  V.  .V.  E.  it-  X  S.  Sfeamnhip  Co., 

3  N.  S.  D.,  184. 

3r(\  R.  S.,  c.  134,  ss.  «2  &  «3- 

Ste  FLEADINU,  54- 
PKACTICE,  76. 

3rd  R.  S.,  c.  134,  s.  10- 

Applies  equally  to  demurrers  in  Equity  as  at 
Common  Law. 

Ilormby  v.  Johnitoni:,  3  N.  S.  D,,  1. 


3rd  R.  S.,  c.  134,  s.  71- 


Stt  PLEADINO,  53. 


3rd  R.  S.,  c.  1S4,  s.  H— 

"  The  Court  or  a  Jmbjt  .shall,  in  all  c'a«e.<,  have 
power  oil  nick  terms  as  to  co-its  or  otherwise  as 
they  xhall  think  fit,  to  set  aside,  in  irhole  or  in 
part,  false,  friroloiis  or  rexatious  pleadiw/s,  and 
/ilcadiinjs  colourahly  amended  in  pretended  com- 
pliance with  a  Judije's  order  to  amend." 

Ptr  Bliss,  J.— I  think  that  to  be  "  frivolous," 
within  the  meaning  of  this  section,  a  plea  must 
be  false. 

Per  Young,  C.  J.,  delivering  the  judgment  of 

the  Court— The  facts  showing  the  pleas   to  be 

false,  frivolous  and  vexatious  should  be  stated 

in  the  affidavit  on  which  the  rule  is  granted. 

The  affidavit  must  be  made  by  plaintiff  himself, 

unices   soiiiu  sufficient  cause  is  shov,-n    \vh)   he 

should  not  make  it. 

Gibson  v    Kiky,  1  Old.,  7'24. 

See  PlEADIX'tt,  41—54. 

3rd  R.  S.,  C.  134,  s.  80- 

"  Where  a  defendant  intends  to  set  npf-and  as 
ft  defence  to  the  declaration,  or  a  plaintij)  to  rely 
on  fraud  in  answer  to  a  plea  of  the  defendant,  it 
must  he  jileailtd." 

The  defendant  insisted  at  the  trial  upon  what, 
if  true,  he  knew  before  the  trial,  and  when  he 
pleaded  that  the  telescope,  to  recover  which 
the  action  was  brought,  was  not  plaintiff 's,  he 
should  have  gone  farther  and  alleged  that  she 
claimed  property  in  it  under  a  gift  fraudulent 
by  virtue  of  the  Statute.  Of  course  such  mat- 
ter of  defence  could  not  be  entertained  without 
violation  of  a  statutable  rule  of  pleading. 

Clarke  v.  Fullerton,  2  N.  S.  D.,  348. 


3rd  R.  Sm  c.  134,  ss.  70  &  S3- 

Fer  Wilkina,  J.— But  let  us  now  enquire  what 
position  this  defendant  occupies  when  asserting 
his  right  to  contest  the  claim  of  the  plaintiff  to 
the  chattel  in  (juestion,  arising  out  of  a  transfer 
to  her  by  her  father,  since  deceased,  and  taken 
out  of  her  possession  by  defendant.  He  appears 
only  as  the  personal  representative  of  the  intes- 
tate who  was  the  donor  of  the  chattel  in  ques- 
tion. Section  79  of  the  Practice  Act  requires  all 
matters  in  confesiion  and  avoidance  to  be  plea- 
ded specially.  So  section  83  enacts  that  in  all 
actions  for  wrongs  independent  of  contract,  the 
plea  "did  not  do  whai  is  complained  of,  '  shall 
operate  as  a  denial  only  of  the  wrongful  act,  ami 
no  othe.r  defence  than  such  denial  shall  be  ad- 
missible under  that  plea.  And  then  follows: 
"  all  matters  in  confession  or  avoidance  shall  Ije 
pleaded  specially,  as  in  actions  on  contracts." 
Turning  to  the  only  special  plea  on  the  issue,  we 
will  find  defendant  confessing  the  taking  and 
!  rei.uning  possession  of  the  telescope,  and  alleg- 
i  ing  his  right  to  so  on  the  sole  and  single  ground, 
i  viz.,  "  that  it  had  been  the  property  of  Clarke, 
'  deceased,  and  that  defendant  at  the  time  of  the 
!  alleged  taking  and  conversion,  and  at  the  time 
I  of  pleading,  was  administrator,  &c.,  of  Clarke, 
!  and  as  such  took  and  retained,"  &c.  So  that 
j  whether  he  at  those  times,  and  whether  any 
other  person  was  a  creditor  of  the  estate,  is  a 
subject  of  insiuiry  that  is  not  before  us  under 
the  pleading. 

Clarke  v.  Fullerton,  2  N.  S.  D.,  .348. 


3rd  R.  8.,  c.  134,  s.  102- 

"//t  actions  of  libel  and  slander,  the  plaintiff 
may  aver  that  the  words  or  matter  complained  of 
were  used  in  a  defamatory  sense,  specifyimj  such 
defamatury  sense,  without  any  prefatory  aver- 
ments to  show  how  such  words  or  matter  were 
used  in  that  sense,  and  such  avernmds  shall  be 
put  in  issue  by  the  denial  of  the  alleyed  slander  or 
libel;  and  when  the  words  or  matter  set  forth, 
with  or  without  the  alleyed  meaniny,  shew  a  cause 

1  of  action,  the  declaration  shall  be  sufficient." 

j      Under  the  old  practice,   the  colloquium  was 

'  indispensable. 

I  Under  the  above  section  the  declaration  nsed 
no  longer  state  any  colloquium,  but,  after  setting 
out  the  words  complained  of,  may  put  any  con- 
struction upon  them  by  innuendo  that  the 
pleader  thinks  fit.  The  most  innocent  words 
may  be  alleged  to  be  libellous.     It  is  a  ques- 

!  tion  wholly  for  the  determination  of  the  jury 
whether  the  words  alleged  to  be  libellous  can  be 

I  80  considered  or  not. 

I  Bowers  v.  Hutchinson,  1  Old.,  679. 


1469 


STATUTES,  NOVA  SCOTIA. 


1470 


3rd  R.  8.,  c.  131,  8. 119- 

(Dirt'ercnt  causes  of  action  may  lie  joined) — 
Applies  only  to  civil  suits,  and  not  to  a  mixed 

proceeding,  partly  civil  and  partly  criminal. 

Bonk  ofB.  y.  A.  V.  Budd  et  al.,  3  N.  S.  D.,  97. 

3rd  R.  8.,  c.  134,  ss.  133  and  131- 

See  STATUTE8,  IMPERIAL, 
15  &  16  Vict.  C.  76,  ss.  128  and  129. 

3rd  R.  8.,  c.  131,  s.  136- 

"  The  Supreme  Court  and  every  Judge  thereof, 
'hall  (it  all  timci  have  the  power  of  amemliuij  all 
(k/ectn  and  trrori  in  all procudiniji  in  civil  eauieK, 
whither  there  lit  anythiwj  in  rvritimj  to  amend  by 
or  not,  and  trhtther  the  defect  or  error  be  that  of 
'he  party  or  not,  and  all  such  amendvientH  may 
he  made  with  or  without  costs,  as  to  the  Court 
or  a  Judije  shall  seem  jit  ;  and  all  such  amend- 
mints  as  may  be  necessary  for  the  pmrpose  of 
ihltrmiuiiiij  in  the  exiflimj  suit  the  real  ques- 
tion ill  controversy  between  the  parties,  shall 
k  made," 

This  section  is,  with  some  omissions  which 
impair  its  explicitness  and  force,  tlie  same  as 
•-'•-'•J  of  the  Common  Law  Procedure  Act.  The 
tirst  i)art  relates  to  disputes  and  errors  in 
proceedings,  and  would  be  applicable  to  such  a 
case  as  Cahoon  v.  Morrow,  1  Old.,  148  (Set 
AMENDMENT,  1,  5),  if  .Statutes  were  required 
ill  such  a  case.  The  latter  part  of  the  section 
is  of  wider  significance. 

Wheelock  v.  Morrison,  1  X.  S.  D.,  345. 

3rd  R.  8.,  c.  134,  ,s.  131— 

"Tlic  party  against  whom  such  amendment 
shall  be  made,  if  dissatisjied  therewith,  may 
'ipplij  to  the  Court  for  a  new  trial  on  that 
[inmnd,  and  the  Court  shall  thereupon  make 
mch  order  as  to  a  new  tried,  and  the  terms  on 
"■hich  such  new  trial  shall  be  grunted,  or  such 
iiiher  orders  as  they  may  deem  reasonable." 

A  discussion  of  tliis  and  the  otlier  sections 
relating  to  amendment  in  chapter  134,  and  of 
the  suliject  of  amendment  generally. 

Wheelock  v.  Morrison,  1  N.  .S.  D.,  3.32. 

3rd  R.  8.,  C.  134,  s.  173- 

'•  The  Court  and  the  Judges  thereof  may 
■'X-rcise  over  the  proceedings  in  the  action  the 
^ame  jurisdiction  \chich  is  at  present  exercised 
'n  the  action  of  ejectment,  so  as  to  insure  a 
'ml  of  the  title,  and  of  actual  ouster  when 
iimssary." 

This  section  reserved  the  then  existing  juris- 
liction  of  the  Courts  in  relation  to  actions  of 


ejectment,  so  as  to  insure  a  trial  of  tiie  title,, 
and  of  actual  ouster  when  necessary. 

Wheelock  v.  Morrison,  1  N.  .S.  D.,  343. 

3rd  R.  8.,  c.  134,  s.  174- 

Per  DesHarres,  J. — 

The  case  of  Lane  v.  Dorsay,  and  other  cases 
[  which  have  been  decided  and  reported,  must,  it 
■  appears  to  me,  until  overruled,  settle  the  princi- 
ple involved  in  this  objection.     In  these  ca.sea  it 
j  has  been  held,  as  I  think  correctly,  under  chap- 
ter 134,  section   174,  of  the  Revised  .Statutes, 
third  series,  that  replevin  will  lie  for  goods  and 
chattels  that  have  been  in  the  possession  of  the 
plaintiff  and  wrongfully  taken,  or  when  lawfully 
taken  or  received  have  been  unlawfully  with- 
held. 

Cf'rant  v.  Robertson,  2  X.  ,S.  D.,  247. 

3rd  R.  8.,  c.  134,  s.  197- 

"  IVheti  the  Judge  shall  refuse  to  grant  a  rule 
nisi  for  a  neic  trial,  in  a  cause  tried  before  him, 
and  the  counsel  for  the  party  shall,  on  or  before- 
the  last  day  of  the  term,  or  the  sittings  after  term, 
in  which  the  cause  has  been  tried,  jile  sufficient 
bail  in  such  reasonable  amount  as  the  Judge  shall 
direct,  to  respond  the  judgment  to  be  finally  given 
in  the  cause,  no  judgment  shall  be  enteral  up,  but 
a  lule  7iisi  specifying  the  objections  s'all  pass, 
under  which  the  party  shall  be  at  liberty  to  enter  the 
case,  and  it  shall  stand  for  argument  in  the  same 
manner  as  if  the  rule  7iisi  had  been  granted  by 
the  Judge  presiding  at  the  trial." 

In  taking  out  rules  to  set  aside  verdicts,  the 
bail  may  be  filed  without  notice,  but  must  jus- 
tify when  they  enter  into  the  recognizance  ;  the 
justification  may  be  oral  before  the  Judge  or 
Prothonotary,  and  when  made  should  be  noted 
in  the  recognizance.  The  justification  may  be 
dispensed  with  by  the  opposite  party,  and  the' 
s'lbstitution  of  one  bail  for  two  may  be  in  like 
manner  assented  to,  and  no  notice  of  such  bail 
having  been  given  shall  be  reijuired. 

.'^ntficient  bail  means  substantial  bail,  either 
accepted  by  the  opposite  party  or  prepared  to 
justify. 

Bockwell  V.  Boss,  1  X.  S.  D.,  183. 

This  section  is   confined   in  its  operation  to 

private  paities,  and   does   not   extend   to    the 

Crown. 

Queen  v.  Ryerson,  2  X.  8.  D.,  276. 

3rd  R.  S.,  C.  134,  ss.  252,  257  &  258- 

See  3rd  R.  8.,  C.  128,  8.  33. 

3rd  R.  S.,  c.  134,  8.  270-5th  R.  8.,  c.  104» 

O.  XIX.,  R.  30— 
"  In  case  of  any  action  founded  upon  a  bill  of 


1471 


STATUTES,  NOVA  SCOTIA. 


1472 


excfmvf/e  or  other  nei/utinhle  imfrument,  it  shall 
he  lawful  for  the  Cjurt  or  a  Judije  to  order  that  the 
loss  of  such  instrument  shall  not  he  set  up— pro- 
vided an  indemnity  is  ijivvn,  to  the  satisfaction  of 
the  Court  or  Judtje,  at/ainst  the  claims  of  any 
other  person  upon  such  neijotiahle  instrument." 

Held,  tliat  the  indemnity  need  not  be  tiled  at 
any  fixed  time  before  tlie  trial.     The  loss   in 
some  cases  might  occur  just  before  the  trial,  so 
it  might  not  be  discovered  till  after  the  com- 
mencement, and  no  wrong  could  be  done  to  the 
defendant  if  he  had  sutiicient  security.     In  this 
case  as  the  note  had  never  been  indorsed,  and  I 
without  indorsement  could  never  rise  in  judg-  i 
ment  against  the  defendant,  semhk,  the  plaintitT: 
could   have   recovered  although   no    indemnity 
had  been  given. 

Smith  V.  McEachrtn,  1  N.  H.  I).,  '299. 

3rd  R.  8.,  c.  134,  part  *i,  ss.  1  &  2- 

(S.  1.  1'rocee.lings  against  ^  ^^^-^^^f  ^^^^^  ,,  appoint  Commissioners  for  the 
resident  out  of  the  Provn.ee.  S.  2.  roeeed-  :  ^^^.^^  ^^^  ^^^^^^^^^^^^  ^^^,^^^^,^_  ,^^^^  ,^y  ^^  ,,,\,,,,,u.^.r 
ingsagamst  foreigners  resident  out  of  the  l"'""  |  ^^^,^j^,,^  j,,.^^.^i„,,   i3   „„,y   „,,ae   in   term.,  for 

'^■'"'^'^^  ,  w         ..  J  applications  by  persons  imprisoned  under  pro- 

These  provisions  do  not  extend  to  suits  against     n  -*....  ^.       .      ,, 

corporations. 


taken  under  commission ''.  Or  sliall  the  filing  of 
the  answer  purporting  to  be  under  the  luiml- 
writing  of  the  deponent  and  tlie  officer  be  hc- 
counted  enougli,  prima  farit.  My  own  opiuiuii 
inclines  to  this  latter  view,  and  I  cannot  regani 
the  case  of  F/tal  v.  Pe.rrini,  h.  R.  3  tj.  15.,  iVJii, 
as  inconsistent  with  it, 

I'Vindsor  Marine  Ins.  Co.  v.  Ladd, 

'2N.S.  D,,4!i;i. 

3ld  K.  S.,  c.  133,  s.  28  -  Cf.  3th  B.  S.,  c. 

107,  a.  3— 

( Documents  admibsible  in  evidence  in  Engliunl, 
etc.,  without  proof  of  signature,  etc.,  aduiissililf 
here) — 

Order  of  discharge  in  bankruptcy  in  Eiighuul 
held  2»rima  facie  evidence  of  the  bankruptcy. 

Mills  v.  Smith,2  0k\.,»2^. 

3rd  R.  S.,  c.  137,  s,  1- 

liy  this  section  the  (lovernor  in  Council  was 


Btlloul  V.  Sydney  it-  Louisbunj  H'y.  Co., 

2N.  S.  D.,73. 

3rd  R.  S.,  c.  135,  s.  11  ■  14- 

Pir  Young,  C.  J.— I  have  said  that  the  same 
principle  extends  to  the  affidavits  filed  in  a  cause, 
and  the  answers  put  in  under  oath  to  interroga- 
tories. The  latter,  however,  stand  on  a  differ- 
rent  footing,  and  depend  on  the  true  construc- 
tion of  our  own  Statute,  chapter  135,  sections  11 
to  14,  and  of  the  Act  of  1867,  chapter  19,  section 
2.  These  difler  considerably  from  the  English 
C.  L.  P.  Act,  1856,  on  which  they  are  founded. 
Section  57  of  that  Act  is  the  origin  of  our  section 
11  in  the  Act  of  1867,  as  may  be  readily  seen  on 
comparing  the  two.  One  remarkable  feature  in 
ours  is,  that  the  answer  may  be  sworn  to  before  a 
Justice  of  the  Peace,  as  has  been  done,  I  perceive, 
with  one  of  the  answers  in  this  case.  Section  52 
of  the  English  Act  is  not  in  ours ;  section  53  is 
nearly  the  same  as  our  section  12  ;  54  bears  some 
analogy  to  our  section  14,  but  this  and  section 
13  may  be  considered  as  peculiar  to  our  practice. 
The  former  declares  that  the  answers  to  the  in- 
terrogatories in  the  oral  examination,  under  sec. 
12,  shall  be  held  to  be  taken  absolutely  (there 
being  no  such  phrase  in  the  English  Act),  and 
unlesi    otherwise    specially 


cess  issuing  out  of  the  Supreme  Courts,  the 
County  Courts  not  being  then  in  existence. 
Since  these  Courts  were  established  no  Act  had 
passed  in  relation  to  persons  imprisoned  umler 
them,  and  the  Act  establishing  such  Courts 
is  silent  on  the  subject.  Chapter  8  of  Acts  of 
1878  provided  for  relief  of  deljtors  imprisoned 
on  process  out  of  the  County  Courts. 
//ild,  intra  vires  the  Local  Legislature. 

Johnston  v.  Poyntz  et  a/.,  2  R.  &  (i.,  1G.3. 

3rd  R.  S.,  c.  140- 

Plaintififs,  as  trustees  of  a  school  section,  had 
occupied  since  1853  a  lot  of  land  reserved  for 
them  by  S.  0.,  who,  however,  had  omitted  to 
give  them  a  deed.  In  1871  defendant  olnaiued 
a  deed  from  the  heirs  of  S.  0.,  knocked  down 
the  fence  round  the  lot  and  ploughed  the  laud. 
Plaintiffs  proceeded  against  him  for  forcible  en- 
try and  detainer,  but  the  Judge  presiding  at  the 
trial  ruled  that  in  the  absence  of  evidence  of 
violence  and  terror  the  complaint  could  not  1)« 
sustained. 

Held,  that  his  ruling  was  correct. 

lirundige  et  al.  v.  Thompson,  3  N.  S.  D.,  359. 

3rd  R.  8.,  C.  141,  s.  8- 

By  this  section  a  subsecjuent  attacher  may  in 
a  cause  in  the  Court  dispute  the  validity  of  the 
previcus  attachment  on   the  ground  tiiat  tlie 

*  _  1    1  _..i 1 1... 


not  de  bene    e-sse, 

ordered  ;  and  section  14  declares  that  they  may    j,-- -  ---  -  , 

be  used.  Is  it  necessary,  then,  efore  using  i  sum  was  not  due,  or  not  payable,  when  llie 
them  to  prove  the  signature  of  the  deponent,  |  action  was  commenced.  Defendant's  property 
which  is  not  necessary  in  case  of  a  deposition  j  was  attached  by  G.  &  K.  under  the  above  Ait 


1473 


STATUTES,  NOVA  SCOTIA. 


1474 


and  subsequently,  by  plaintiff,  under  the  Do- 
minion A:!t.  G.  &  K.  applied  to  liave  plain- 
tiff's attachment  set  aside  on  certain  technical 
grounds. 

i%W,that  G.  &  K.  could  not  attack  plaintiff's 
proceedings  under  s.  8. 

Jennett  v.  Petitmaitre,  2  N.  S.  D.,  524. 


3rd  K.  8.,  c.  145-Cf.  5tb  R.  8.,  c.  125- 

Ptr  Wilkins,  J.— In  1768,  Nova  Scotia  first 
legislated  in  the  matter  of  enabling  the  sale  of 
goods  distrained  for  rent.  It  is  certain  that 
tills  was  done  in  view  of  the  Imperial  Acts  then 
In  force  in  England,  viz.,  William  &  Mary,  Sess. 
1,  c.  5 ;  8  Anne,  c.  14 ;  and  11  Geo.  2,  c.  19. 

We  find  that  the  first  four  sectiops  of  our  old 
Stcitutes,  8  Geo.  3,  c.  4,  are  transcripts  of  the 
Acts  of  William  &  Mary  ;   the  5tli,   6th,  7th, 
8lh,  9th,   and    10th   sections   are   taken   from 
8   of    Anne,   c.    14,    as    is    also    substantially 
the  13th  section,  whereas   the   11th  and  12th 
sections    are    not    foimd   in    either    of   those 
two  last  mentioned  English  Statutes,  but  are 
copied  from   the  8th  and  9th  sections  of   11 
George  2,  c.    19.     It  is  observable,   also,  that 
wliile  the  Legislature  deemed  it  expedient  to 
enact  in   terms  in  section  12  of  our  Act,  the 
first  part  of  section  9  of  the  Act  of  George  2, 
which  requires  that  the  tenant  shall  have  notice 
of  the  place  where  the  distress  is  deposited,  it 
omitted  to  enact  the  remaining  part  of  that  sec- 
tion, although  it  is  very  important  and  entirely 
applicable  to  our  colonial  condition,  but  enacted 
no  other  of  its  provisions.     It  must,  therefore, 
oe  taken  to  have  said  that  the  remaining  sec- 
tions, including  of  course  those  that  toned  down 
the  severity  of  the  former  law,  which  made 
trespassers  ah  initio  those   who,   after   legally 
making  a  distress  for  rent,  were  guilty  of  any 
subsequent  irregularity  in  relation  to  it,  were 
inapplicable  to  the  circumstances  and  condition 
of  this  colony,  and  therefore  not  proper  to  be  in 
force  in  it.     This  necessarily  implied  view  of 
legislative  opinion  has  been  thrice  manifested  in 
this  Province,  viz.,  first  when  the  old  Statute 
of  1768  was  passed,  and  secondly  and  thirdly, 
when  the  two  consecutive  series  of  the  Revised 
Statutes  were  enacted.     Our  present    law,   c. 
U5,  Revised  Statutes,  3rd  series,  contains  no 
provision  that  was  not  in  the  Statute  of  1768. 

Such,  then,  being  the  Statute  law  which 
governs  the  case  before  us,  it  follows  that  this 
defendant,  having  entered  on  the  premises  of 
the  plaintiff  to  distrain  for  rent,  confessedly  due 
though  it  was,  and  having  sold  the  goods  of 
plaintiff  distrained  on  without  having  given  the 
notice  -equired  by  the  Statute,  was  a  trespasser 
49 


in  his  first  act  and  in  every  subsequent  act  of 
his  proceedings. 

Cornelim  v.  Burton,  3  N.  S.  D.,  337. 

3rd  R.  8.,  c.  146,  8.  11 -Cf.  Sth  R.  8., 

c.  115,  s.  11- 

"  In  case  of  any  such  arbitration  or  reference 
as  aforesaid,  tAe  Court  or  a  Judye  shall  have 
power  at  any  time,  and  from  time  to  time,  to  remit 
the  matters  refened,  or  any  or  either  of  them,  to 
the  re-consideration  and  re-determination  of  the 
said  arbitrator  or  referee,  tipon  such  terms,  as  to 
costs  and  othenvise,  as  to  the  said  Court  or  Judye 
may  seem  proper." 

Held,  to  extend  to  references  by  consent  of 
parties  as  well  as  to  compulsory  references. 

Annis  et  al.  v.  Cook  et  al.,  2  Old.,  163. 

3rd  R.  8.,  c.  147,  s.  23- 

"  Two  Justices  of  the  Peace  may  hear  and 
determine  in  a  summary  way,  all  complain's  for 
common  assaults  and  batteries,  and  upon  conviction 
the  offender  shall  forfeit  a  sum  not  exceediny  eiyht 
dollars,  to  be  paid  over,  when  recovered,  to  the 
County  Treasurer,  and  the  Justices  shall  forthicith 
fie  the  receipt  of  the  County  Treasurer  with  the 
Clerk  of  the  Peace." 

Plaintiff  instituted  an  action  under  section  23, 
c.  147,  3rd  Revised  Statutes,  before  two  Jus- 
tices of  the  Peace  against  defendant  for  an 
assault,  and  the  Justices  on  hearing  the  evidence, 
dismissed  his  complaint,  either  deeming  the 
offer.ce  not  proved,  or  so  trifling  as  not  to  merit 
punishment.  Plaintiff  thereupon  appealed  to 
the  Supreme  Court,  and  the  Judge  presiding 
at  Annapolis  dismissed  his  appeal,  but  gave  him 
a  rule  iiisi  to  bring  the  case  for  argument  before 
the  full  Court. 

Ifeld,  that  in  a  case  of  this  nature,  plaintiff 
was  not  entitled  to  appeal  from  the  decision  of 
the  Justices  of  the  Peace. 

Chedey  v.  Grasnie,  1  N.  S.  D.,  191. 


3rd  R.  8.,  c.  147,  s.  25  and  28- 

S.  25.  "  If  the  Justices  upon  the  heariny  shall 
deem  the  offence  not  proved,  or  so  tri/liny  as  not 
to  merit  punishment,  they  may  dismiss  the  com- 
plaint, and  if  required  shall  yive  the  party 
acquitted  a  certificate  accordingly." 

S.  28.  "  If  any  person  shall  have  obtained  a 
certificate  as  above,  or,  having  been  convicted,  shall 
have  paid  the  tvhole  atnount  adjudyed,  or  shall  have 
suffered  the  punishment  awarded  for  non-payment 
thereof,  he  shall  be  thereby  acquitted  of  all  crim- 
inal proceedings  for  the  same  offence." 

Held,  that  there  was  no  appeal  in  a  case  which 
the  Justices  of  the  Peace  had  pronounced  too 
insignificant  to  occupy  their  attention  and  to 


1475 


STATUTES,  NOVA  SCOTIA. 


1476 


which  the  production  of  the  certificate  of  the 
Justices  wouhl  have  been  a  complete  answer. 

Chedty  v.  Orassie,  1  N.  S.  D.,  191. 

3rd  R.  S.,  c.  148,  s.  1— 

(Provides  bail  to  be  filed  before  issuing  a  writ 
of  certiorari',  indorsement  required  on  the 
writ) — 

Held,  that  no  certiorari  should  issue  in  a  civil 
suit,  without  an  affidavit  showing  sufficient 
grounds  in  the  estimation  of  the  Judge  or  Com- 
missioner who  grants  it,  and  which  may  be 
controverted  on  other  affidavits  and  motion  to  set 
the  certiorari  aside. 

Crawley  v.  Anderson,  1  N.  S.  D.,  385. 

3rd  R.  S.,  c.  169,  ss.  12, 13  and  22- 

S.  12.  "  Whosoever  shall  maliciously  kill  any 
cattle,  or  cause  any  harm  to  any  cattle,  with  intent 
to  kill  such  cattle,  or  retuler  the  same  useless  to 
the  owner,  either  permanently,  or  for  a  time,  shall 
be  committed  to  jail  for  a  term  not  exceeding  one 
year,  or  fined  in  a  sum  not  exceeding  Jorty 
dollars.'" 

S.  13.  '^  Whosoever  shall  wantonly  and  cruelly 
hem,  abuse,  or  ill-treat  any  cattle,  shallbe  punished 
byjine  or  imprisonmeixt  in  jail,  at  the  discretion  of 
the  Court:' 

S.  2*2.  "  Whosoever  shall  maliciously  damage 
or  destroy  any  real  or  personal  property,  either  of 
a  public  or  private  nature,  for  xuhich  no  remedy 
or  punishment  is  hereinbefore  provided,  shall  be 
committed  to  jail  for  a  term  not  exceeding  two 
years,  or  fined  in  a  sum  not  exceeding  eighty 
dollars" 

Defendant  was  convicted  of  having,  in  a  secret 
and  clandestine  manner,  cut  off  the  hair  from 
the  manes  and  tails  of  two  horses,  the  property 
of  one  William  Ballam. 

Held,  that  the  offence  did  not  come  within 

sees.  12  &  13,  but  was  covered  by  sec.  22,  chap. 

169,  R.  S,  3rd  series,  under  which  defendant 

was  indicted. 

Also,  that  the  offence  having  been  committed 

wrongfully  and  intentionally,  without  just  cause 

or  excuse,  and  with  full  knowledge  as  to  the 

ownership  of  the  property,   malice  might   be 

fairly  inferred. 

Queen  v.  Smith,  1  N.  S.  D.,  29. 

3rd  R.  S.,  c.  171,  s.  71— 

"Every  objection  to  any  indictment  for  any 
formal  defect  apparent  on  the  face  thereof,  shall 
be  taken  by  demurrer  or  motion  to  quash  such 
indictment,  before  the  jury  shall  be  sworn,  and  not 
afterwards;  and  every  Court  before  which  any 
such  olgectima  shall  be  taken,  for  any  former 
defect,  may,  if  it  6e  thought  necessary,  cause  the 


indictment  to  be  forthwith  amended  in  such  par- 
ticular, by  some  officer  of  the  Court  or  other 
person,  and.  thereupon  the  trud  shall  proceed  as 
if  no  such  defect  had  appeared." 

An  application  to  the  Court  on  the  part  of  n 
defendant  to  (juash  an  indictment  will  be  refused 
unless  the  defect  is  clear  and  obvious.  Tlio  de- 
fendant, by  pleading  to  the  indictment,  will 
exclude  himself  from  having  his  application  en- 
tertained. 

Where  the  defendant  has  had  an  opportiuiity 
to  move  to  quash  the  indictment  when  the  cause 
was  called  for  trial,  and  before  the  jury  was 
sworn,  but  has  neglected  to  avail  himself  of  it, 
he  is  put  in  no  better  position,  as  regards  iiis 
application,  by  the  jury  failing  to  agree  on  a 
verdict  and  being  discharged  in  consequence. 

Queen  v.  Wallace,  1  N.  S.  D.,  382. 

A  motion  in  arrest  of  judgment  may  be  iniule 
for  any  substantial  defect  which  appears  upon 
the  face  of  the  record.  If  the  objection  be 
valid,  the  whole  proceedings  will  be  set  aside, 
but  the  party  may  be  indicted  again. 

An  indictment  is  clearly  bad  where  two 
offences  are  charged  in  a  single  count. 

Where  the  names  of  third  persons  cannot  be 
ascertained,  it  is  sufficient  to  state,  "a  certain 
person  or  persons   to  the  jurors  aforesaid  un- 

Queen  v.  Blackie,  1  N.  S.  D.,  383. 

3rd  R.  S.,  c.  171, 88. 99  and  100-Cf.  R.  S. 

C,  c.  174,  ss.  259  &  260— 

S.  99.  "  When  a  person  has  been  convicted  of 
criminal  treason,  felony,  or  misdemeanor,  befi  :e 
any  Court  of  Oyer  and  Terminer,  or  Jail  Delivery, 
the  Judge  before  whom  the  case  teas  tried  may,m 
his  discretion,  reserve  any  question  of  law  which 
arose  on  the  trial  for  the  consideration  of  the  Jus- 
tices of  the  Supreme  Court  at  Halifax,  ami  there- 
upon may  respite  execution  of  the  judgment  on 
such  conviction,  or  postpone  the  judgment  until 
such  question  has  been  considered  and  decided ;  and 
in  either  case  the  Court  at  which  the  trial  took 
place  shall  in  its  discretion,  commit  the  persons 
convicted  to  prison,  or  take  a  recognizance  of  baU 
with  one  or  tioo  sufficient  surely  or  sureties  in 
such  sutns  as  the  Court  thinks /U,  conditioned  for 
his  appearance  at  such  time  as  the  Court  directs, 
to  receive  judgment,  or  to  render  himself  m 
execution,  as  the  case  may  be." 

S.  100.  "  The  Judge  shall  thereupon  state,  in  a 
case  to  be  signed  by  him,  the  question  or  question! 
of  law  so  reserved,  with  the  special  drcutnstancet 
upon  lohich  the  same  arose  ;  and  such  case  shall 
be  transmitted  by  the  Judge  to  the  Prothmotary 
of  the  Supreme  Court  at  Halifax,  an  or  before 


1477 


STATUTES,  NOVA  SCOTIA. 


thejirst  dny  of  th$  term  of  such  Supreme  Court, 
at  Halifax,  next  after  the  Term  when  luvh  trial 
was  hml" 

Per  Young,  C.  J.— Looking  to  the  general 
scope  of  the  earlier  cases,  I  tan  find  no  assertion 
of  a  right,  nor  any  inclination  on  the  part  of  the 
Judges,  to  control  or  interfere  with  the  verdict 
of  a  jury,  where  there  was  conflicting  or  circum- 
stantial evidence,  and  the  cise  had  been  legally 
tried  and  properly  and  fairly  submitted  to  them. 
The  Judges  seem  to  me  to  have  recognized  the 
well  known  boundary  line  between  ijuestions  of 
fact  and  questions  of  law,  and  to  have  interposed 
only  when  the  law  had  not  been  satisfied  or  had 
been  misunderstood. 

Qiieeii  V.  Downey  et  al.,  2  Old.,  93. 


1478 

4th  R.  8.,  C.  9, 8.  6I-Cf.  5  R.  S.,  c.  7, 8. 65— 

(Lessee  to  receive  thirty  days'  notice  of  in- 
tended forfeiture  of  lease) — 

Held,  that,  where  the  notice  was  addressed  to 
the  .nortgagee  and  not  to  the  lessee,  the  Com- 
missioner of  Mines  had  no  jurisdiction  to  forfeit. 
Qme)i  V.  Ehe,  4  R.  &  G.,  130. 


96 


4tli  R.  8.,  c.  9,  88.  86,  87,  00, 91,  93,  and 


See,  also,  STATUTES,  IMPERUl, 
11  &  12  Vict.,  C. 


78. 


3rd  R.  S.,  c.  171,  8.  101- 

When  after  verdict  of  guilty  i;i  a  prosecution 
for  bigamy,  no  judgment  had  been  given  at  the 
trial,  the  Court  having  decided  that  the  prisoner 
had  been  rightly  convicted,  ordered  that  judg- 
ment should  be  given  on  the  conviction  at  the 
next  term  of  the  Supreme  Court  at  Amherst, 
where  the  prisoner  had  been  tried,  he  in  the 
meanwhile  to  be  detained  in  custody. 

Qtieen  v.  Alla7i,  2  Old.,  373 ; 
1  N.  S.  D.,  5. 

Rev.  Stats.,  Ith  series,  came  into  force 
Mar  Stta,  1874. 

4th  R.  S.,  c.  1,  s.  7-Cf.  5th  R.  S.,  c.  1, 

s.  7  (0- 

"  All  wordi  purporting  to  (live  a  joint  authority 
to  three  or  more  persons,  .shall  be  construed  as 
ijivimj  authority  to  a  majority  of  such  persons. 

Per  DesBarres,  J.,  delivering  the  judgment  of 
the  Court, 

I  am  decidedly  of  opinion  that  this  latter  sec- 
tion was  never  intended  to  apply  or  control,  and 
it  does  not  apply  to  and  cannot  control  the 
Judges  in  the  discharge  of  their  judicial  duties. 
It  was,  I  take  it,  intended  to  apply  to  cases 
where  three  or  more  persons  were  jointly  em- 
powered to  perform  some  specific  Act. 

Qu^en  V.  Quinn,  1  R.  &  G.,  139. 

4th  R.  S.,  c.  9-Cf.  5th  R.  S.,  c.  7- 

(Of  Mines  and  Minerals)— 
A  license  to  search  for  minerals  under  this 
chapter  is  assignable. 

In  r",  Milner's  Appeal,  2  R.  &  C,  522. 


S.  86:  "The  Commissioner  of  M tries  may, 
upon  application,  yrant  licenses  to  search,  to  he  in 
force  for  one  year  from  the  date  of  application 
therefor,  to  enter  upon  any  lands  in  this  Province* 
not  already  under  license  or  lease  for  mining  pur- 
poses," ^-c. 

S.  91  :  "  When  a  license  to  search  for  mines 
other  than  gold  has  been  granted,  it  shall  be  lawful 
for  the  Commissioner  of  Mines  to  grant  other 
licenses  to  search  over  the  same  area ;  provided, 
that  he  shall  grant  no  more  licenses  than  there  ai  e 
areas,  of  one  square  mile  each,  contained  within 
the  area  so  first  licensed ;  and  after  thejirst  licen- 
see has  chosen  his  one  square  mile,  the  others  shall 
select  theirs  in  the  order  of  their  licenses— provi- 
ded, that  the  right  of  search  of  the  second  licensee 
and  his  license  shall  commence  immediately  after 
the  expiration  of  the  license  or  renewed  license  of 
the  first  licensee,  or  on  the  selection  of  his  square 
mile  by  the  first  licensee ;  and  the  third  license 
shall  commence  at,  the  end  of  the  right  of  search 
of  the  second,  or  his  selection  of  his  square  mile, 
as  aforesaid,  and  so  on  until  the  whole  area  is  dis- 
posed of. " 

Per  Ritchie,  E.  J.— The  S6th  sec.  of  the  9th 
chapter  of  the  Revised  Statutes,  "  Of  Mines  and 
Minerals, "authorized  the  Commispio-if^rof  Mines 
to  grant  licenses  to  search  to  be  in  force  one  year 
from  date  of  application,  to  enter  upon  land  not 
already  under  license  or  lease,  and  to  dig  and 
explore  for  minerals  other  than  gold.  By  the 
87th,  no  such  application  shall  be  valid,  unless 
accompanied  by  a  payment  of  §20,  and  the  li- 
cense  to  search  may  cover  any  single  tract  of 
ground  not  exceeding  five  square  miles  in  extent, 
but  not  more  than  two  and  one-half  miles  in 
length. 

Sec.  90  allows  the  license  to  be  renewed 
under  special  circumstances,  subject  to  approval 
by  the  Governor  in  Council.  The  91st  section 
provides  that  when  a  license  to  search  has 
been  granted,  the  Commissioner  of  Mines  may 
grant  other  licenses  to  search  over  the  same 
area,  provided  that  he  shall  grant  no  more 
licenses  than  there  are  areas  of  one  square  mile 
each  contained  within  the  area  so  first  licensed  ; 
and  after  the  first  licensee  has  chosen  his  square 
mile  the  others  shall  select  theirs  in  the  order 


1479 


STATUTES,  NOVA  SCOTIA. 


1480 


of  their  licenses,  provided  that  the  right  of  searcli 
of  the  second  licensee  and  his  license  shall 
comincnco  immediately  after  the  expiration  of 
the  license,  or  renewed  license  of  the  tirst 
licensee,  and  so  on,  till  each  in  order  has  sel- 
ected liis  square  mile,  and  the  whole  area  is 
disposed  of. 

Tiie  93rd  section  enacts  that  the  holder  of  a 
license  to  search  may,  at  any  time  before  the 
expiration  thereof,  select  from  the  land  covered 
by  such  license,  an  ai'ea  of  one  sfjuare  mile,  for 
the  purpose  of  working  the  mines  and  minerals 
therein,  and  may  make  an  application  in  writ- 
ing to  the  Commissioner  of  Mines  to  work  the 
same,  whicli  shall  be  accompanied  by  a  payment 
of  850 ;  and  the  94th  section  provides  that  on 
such  application  and  payment,  tiio  Commissioner 
of  Mines  shall  cause  the  portion  so  selected  to 
be  surveyed  and  laid  off,  &c. 

The  9ttth  section  enacts  that  upon  complying 
with  the  reijuirements  of  the  chapter,  the  appli- 
cant shall  be  entitled  to  a  license  to  occupy  and 
work  the  one  square  mile  applied  for. 

A  license  to  search  for  minerals,  other  than 
gold,  was  granted  to  the  relators  under  section  86 
of  chapter  9, 4th  R.  S.,  to  expire  21  st  May,  1874. 
r.evious  to  its  expiration,  four  other  licenses  to 
search  over  the  same  area,  were  granted  to  the 
relators,  which  were  to  expire  respectively,  '2'2nd 
May,  1875 ;  2.3rd  May,  1876 ;  26th  May,  1877, 
and  27th  May,  1878  ;  the  area  containing  only 
four  and  a  quarter  square  miles.  On  the  28th 
of  May,  1877,  defendants  having  a  license  to 
search  over  an  area  overlying  in  part  tiie  area  of 
the  relators,  applied  for  a  license,  which  was 
afterwards  granted,  to  work  one  square  mile 
partially  overlying  and  including  within  its 
boundaries  the  area  under  license  to  search  to 
the  relators.  An  order  nixi  having  been  taken 
to  restrain  defendants  from  interfering. 

Held,  that  over  the  area  of  four  and  a  quarter 
miles  first  above  referred  to,  not  more  than  four 
valid  licenses  to  search  could  be  granted  under 
R.  S.,  cap.  9,  sec.  91,  that  the  relators'  fifth 
license  to  search,  which  was  to  expire  May 
27th,  1878,  was  invalid,  and  that  on  the  28th  of 
May,  1877,  there  was  no  obstacle  to  the  defend- 
ants obtaining  the  license  to  v/ork  granted  to 
them. 

Obiter  Dictum,  that  it  was  no  objection  to  the 
license  to  work,  that  the  license  to  search  on 
which  the  license  to  work  was  obtained,  was 
taken  out  in  the  name  of  one  only  of  the  de- 
fendants, Fraser,  as  it  appeared  that  they  were 
all  interested  in  the  license  to  search  and  it  was 
taken  out  for  their  joint  benefit.  There  is  no 
objection  to  the  course  which  has  been  pursued. 
Attorney-OenercU  v.  Fraser  et  al, 

R.  E.  D.,  275. 


Oil  apixat  from  the  Judije  in  Eqtiity  to  the 
Court  in  banco, 

Held,  that  the  practice  of  the  office  was  wrong 
in  s'oiiting  more  than  one  license  to  searcli, 
with  right  of  renewal,  to  the  same  party  over 
the  same  hrea,  that  on  this  ground  the  license 
to  search  rtlied  on  by  relators  was  invalid,  and 
that  without  respect  to  defendancs'  title,  tiiu 
injunction  must  be  refused,  but  without  costs, 
as  l)oth  parties  had  acted  under  an  erroneous 
view  of  the  law. 

Attorney -General  v.  Fraier,  3  R.  &  C,  331. 


4th  R.  S.,  c.  I'i-Cr.  5th  R.  S.,  C.  9- 

(Of  trespasses  to  Crown  property) — 
The  right  of  the  Crown,  in  respect  of  tres- 
passes to  Crown  property,  are  not  limited  ))y 

this  chapter. 

See  CROWJT,  3. 

4th  R.  S.,  c.  21,  88.  6  and  54- 

S.  6.  (Amercements  for  certain  purposes, 
when  Crand  Jury  neglects) — 

S.  54.  (Amercements  by  Supreme  Court  on 
neglect  of  Sessions) — 

These  sections  do  not  empower  the  Supreme 
Court  to  amerce  a  County  for  charges  incurred 
in  calling  out  the  active  militia  under  the  Do- 
minion Act  of  1873,  c.  46,  to  quell  a  riot. 

In  re  Amercement  of  Cape  Breton  County, 

2  R.  &  C,  410. 

4th  R.  S.  c.  21,  8.  16  —  (Exemptions  ffom 

taxation)— 

Held,  that  this  section  applies  only  to  County 
assessment. 

Brown  v.  Windsor  d:  Annapolin  R'y  Co., 

2  R.  &  G.,  430. 

4th  R.  8.,  c.  21,  8.  17- 

"  One-fourth  and  no  more  of  all  local  and 
direct  taxes  shall  be  levied  and  assessed  by  an 
equal  rate  as  a  poll  tax  on  all  male  jmsons 
living  xoithin  the  district,  of  the  age  of  twenty- 
one  years,  and  not  being  paupers,  and  the  other 
three-fourths  shall  be  levied  and  assessed  «j)oh 
the  whole  taxable  real  and  personal  property 
of  the  locality." 

Hdd,  that  a  vessel  registered  in  the  port  of 
Halifax,  and  owned  by  a  trader  resident  at 
Isaac's  Harbor,  and  not  at  the  time  of  the  as- 
sessment in  the  District  of  Isaac's  Harbor,  or 
the  County  of  Guysboro',  was  not  assessable  in 
the  District  of  Isaac's  Harbor  for  county  rates. 

James,  J.,  dissenting. 

In  re  Effie  Sweet,  3  R.  &  G.,  380; 
3C.L.T.,44. 


1481 


STATUTES,  NOVA  SCOTIA. 


1482 


4tb  K.  8.,  c.  21,  8. 61- 

" Any  person  oijifrieved  by  the  asBeiiment,  SfC, 
may  appeal  to  the  tuxt  fiesiioni,  Sfc.,and  the  Court 
of  Appeal,  without  prejudice  to  the  whole  or  any 
part  of  the  assetiment,  may  either  let  aside  or 
lower  the  rate  on  such  person  or  finally  determine 
the  appeal,  as  they  shall  see  fit." 

1876,  c.  29,  enacted:  "  The  following  clause  is 
added  at  the  end  of  the  si.ity-Jirst  section  of  the 
chapter  hereby  amended,  that  is  to  say:  Any  party 
af/yrieved  by  the  decision  of  the  general  or  special 
■Sessions,  may  appeal  therefrom  to  the  neat  term 
of  the  County  or  Su/n-eme  Court  for  the  County," 
etc, 

1879,  c.  1,8.  79,  enacted  :  "  The  powers  and 
authorities  which  in  chapters  15,  21,  etc.,  etc.,  of 
the  Jieiised  Statutes,  fourth  series,  ,  ,  .  are 
ijiven  to  Grand  Juries,  Justices  in  Session,  genera/ 
or  special,  etc.,  for  the  carrying  out  of  the  pro- 
linions  of  those  chapters  are  given  to  the  Muni- 
cipal Councils,"  etc. 

I/eld,  that  the  power  ot  hearing  and  deciding 
appeals  from  asaessmenta  waa  transferred  and 
legally  veated  in  the  Municipal  Council ;  but 
subject  to  the  limitation  and  appeal  provided  by 
c.  29  of  1876. 

In  re  Assessment  of  Crowe,  3  R.  ft  G.,  .301. 

4tb  R.  S.,  C.  22,  8.  7-Cf.  5tb  R.  S.,  C.  20, 

s.  7— 

"  The  Supreme  Court  in  the  different  Counties 
thall  from  time  to  time  make  and  publish  rides 
and  ordtrsfor  Jiximj  and  ascertaining  the  limits 
and  boundaries  of  jail  yards,  and  for  directing 
and  controtlinij  the  conduct  of  Sheriffs,  Jailers  and 
officers  having  the  charge  or  custody  of  prisoners, 
and  for  their  safe  keeping  and  protection." 

The  defendant  having  been  arrested  on  an 
execution,  obtained  the  privilege  of  jail  limits, 
as  fixed  by  an  order  of  Court  under  4th  R.  S., 
c.  22,  8.  7,  and  gave  a  bond  with  a  surety  to  the 
Siieriff,  who  assigned  it  to  plaintiff. 

Held,  that  the  bond  could  not  be  transferred 
by  indorsement  as  a  bail-bond  so  as  to  vest  a 
right  of  action  in  the  transferee,  and  that  four- 
teen days'  notice  of  action  must  be  given  by  the 
assignee. 

Quaere,  as  to  legality  of  the  bond. 

Roue  V.  Prendergast,  1  R.  ft  G.,  ,385. 

4th  R.  S.,  C.  28,  8.  22- Cr.  5th  R.  8.,  c.  24, 

s.  22— 

"JVb  person  shall  be  entitled  to  recover  any 
(harye  in  any  Court  of  law  for  any  medical  or 
turgical  advice,  or  for  attendance,  or  for  the  per- 
fomtance  of  any  operation,  or  for  any  medicine 
which  he  shall  have  both  prescribed  and  supplied, 
unless  he  shall  prove  upon  the  trial  that  he  is 
registered  under  this  chapter." 


The  plaintiff,  a  physician  practising  in  New- 
foundland, performed  medical  services  for  the 
defendant,  also  residing  there. 

Held,  that  the  plaintiff  could  recover  iu  this 
Court,  notwithstanding  the  fact  that  ho  was 
not  registered  under  4th  R.  S. ,  c.  28,  s.  '2^2. 

IVilmot  V.  Shaw,  2  R.  &  G.,  343; 
2C.  L.  T.,90. 

4th  R.  8.,  €.  "0-(Board8  of  Health,  etc.)- 
See  BOARD  OF  HEALTH. 

4th  R.  8.,  c.  32-(Or  Public  In8truction)- 
A>e  36  Vict.  (1813),  C.  12- 
8CH00L  LAW. 

4th  R.  8.,  c.  32,  8.  20- 

"  Inhere  any  section  at  the  time  fixed  for  the 
annual  meeting  fails  to  elect  three  trustees,  or  to 
Jilt  the  vacancy  occurring  in  the  trusteeship, 
or  vacancies  from  other  caiises,  the  trustee 
or  trustees  shall  lie  appointed  upon  the  written 
requisition  of  seven  ratepayers  in  the  sectioti,  by 
the  Commisioners  of  Schools  for  the  district  in 
which  the  school  house  is  situate,  or  in  which  a 
majority  of  the  ratepayers  of  the  section  reside, 
and  where  any  trustee  or  trustees  have  been  elected 
and  refuse  to  act,  or  shall  neglect  the  performance 
of  duly  for  twenty  days  after  such  eler'ion,  the 
Board  of  Commissioners  shcdl  appoint  trustees  or 
a  trustee  in  place  of  the  person  or  persons  so 
refusing  to   act," 

Held,  that,  wliere  no  vacancy  had  occurred 
and  no  proof  was  produced  of  any  refusal  or 
neglect  by  and  on  the  part  of  the  trustees,  to  act 
or  perform  their  duties  as  such,  their  dismissal 
by  the  Board  of  Commissioners  was  tdtra  vires. 
Trustees  School  Section  16  v.  Cameron, 

2  R.  &  C,  328. 

4th  R.  8.,  c.  32, 88.  34  and  37— 

See  SCHOOL  LAW,  14. 

4th  R.  S.,  C.  32,  8.  64-Cr.  5th  R.  8.,  C.  29, 

8.54- 

^' Property  held  by  executors,  administrators, 
trustees,  etc.,  shall  he  liable  to  be  assessed,  etc  ,  in 
the  section  in  which  the  original  oioner  of  such 
property  resides  or  last  resided." 

See  SCHOOL  LAW,  8. 

4th  R.  S.,  C.  32,  8.  76,  8Ub-8ec.  1— 

"  It  shall  be  the  duty  of  the  inspector  to  act  as 
clerk  of  each  Board  of  School  Commissioners 
^cithin  his  county,  and  to  draw  in  November 
and  May  in  each  year  from  the  treasury,  upon 
the  order  of  the  chairman,  the  Provincial  money 


1483 


STATUTES.  NOVA  SCOTIA. 


14S4 


n«  provided  by  this  chapter,  and  promptly  de- 
liver to  licensed  t>'<irhers  personally,  nr  upon 
their  written  orders,  their  Provineiid  allow- 
iinees  and  drafts  upon  the  county  or  district 
treasurer." 

Held,  tliat  inspectors  could  not  pay  those 
allowances  on  a  garinshee  cider  without  contra- 
vening this  section  of  the  Act. 

Fraser  v.  Mc Arthur,  3  R.  &  (J.,  498. 

4tb  R.  S.,  c.  33,  88.  8,  9,  10,  and  18- 

Cf.  6th  R.  S.,  c.  35,  88.  8,  9,  10,  and  18— 

(Proceedings  in  regard  to  removal  of  paupers 
and  liability  for  expenses  incurred  in  connection 
therewith)  — 

A  pauper  having  a  settlement  in  defendants' 
district,  was  seized  with  fever  in  plaintiffs'  dis- 
trict. Plaintiffs  gave  her  relief,  gave  notice  to 
defendants,  and  had  the  pauper  removed  as 
soon  as  it  could  properly  l)e  done.  They  then 
brought  action  for  the  expenditure  incurred 
previous  to  the  removal. 

Held,  that  the  Statute  was  not  sufficiently 
clear  and  unambiguous  to  impose  on  defendants 
the  expense  of  sustaining  the  pauper  previous 
to  I'cmoval. 

Overseem  of  Poor,  Jiridi/eirater,  v. 

Overneer.i  of  Poor,  Port  Medway, 
4R.  &(;.,  88. 

4th  R.  S.,  C.  35,  8. 1  -Cr.  5th  R.  S.,  C.  37, 

8.    1  — 

"  If  any  woman  shall  hecome  prefjnant  with  a 
buKlard  child  likely  to  become  ehanjeable  to  any 
Toirnnhip,"  il-c. 

Defendant  objected   to  an  order  of  filiation 
made  at  the  instance  of  the  Overseers  of  the 
Poor  for  Maccan,  on  the  ground  that,  although 
the  mother  was  resident  at  Maccan  when  tiie  j 
child  was  born,  the   legal  settlement   of    the  | 
mother  was  the  Township  of  Parrsboro'. 

Held,  that  the  father  was  I'able  to  the  plain- 1 

tiff  Township,   the  words  '  ■  likely  to  become 

chargeatjle  to  any  Township  "  being  equivalent  j 

to  "  likely  to  need  relief  from  any  Township." 

Overseers  of  Poor  of  Maccan  v.  Davidson, 

4  R.  &  G.,  58. 

4thR.  S.,  c.  36,  s.  2and4- 
S.  2.     Provides  for  the  appointment  of  guar- 
dians for  lunatics  '*  with  the  poioers  and  duties  " 
in  said  chapter  thereinafter  specified. 

S.  4.  Enacts  that  the  guardian  "shall  also 
settle  all  accounts  of  the  ward,  and  shall  sue  for, 
recover  and  receive  all  debts  due  to  him."  etc. 

Held,  on  appeal  that  the  right  of  the  guardian 
of  a  lunatic  to  bring  au  action  in  his  own  name 


for  the  lunatic's  chnses  in  action,  is  doubtful, 
notwithstanding  the  language  of  the  Statute, 
and  that  the  proceedings  in  an  action  brought 
in  his  own  name  for  a  debt  duo  the  lunatic  shoulil 
be  amended  by  substituting  the  lunatic  us 
plaintiff. 

Searran  v.  Porter,',  4  R.  &  G.,  292  and  49.'). 

4th  R.  S.,  c.  40, 8.  4-5th  R.  S.,  r.  42,  8. 4  - 

(Powers  of  Commissioners  of  Sewers  and  of 
Dyked  and  Marsh  Lands,  to  carry  on  works  ; 
new  works,  how  begun) — 

Per  McDonald,  C.  J.— The  intention  of  the 
Legislature  in  this  Act  would  appear  to  be  to 
empower  the  Commissioners  of  Sewers  to  act 
in  making  ordinary  repairs,  or  in  any  sudiluii 
emergency,  without  consultation  with  or  tlie 
consent  of  the  proprietors,  but  that  these  pro- 
prietors should  not  be  taxed  for  the  construi;- 
tion  of  any  new  work  not  immediately  esHcntial 
to  the  preservation  or  interests  of  common  pro- 
perty, without  their  consent  to  such  work  being 
first  obtained. 

Bumham  v.  Davison,  5  R.  &  G.,  388. 

On  appeal  to  the  Supreme  Court  of  Canada, 
The  al)ove  expression  was  adopted  and  ap- 
proved. 

Cas.  Dig.,  516. 

4th  R.  S.,  c.  40,  s.  27-5th  R.  S.,  c.  42, 

8.27— 

(Outer  dykes  protecting  lands  enclosed  Ijy 
inner  dykes  ;  how  kept  in  repair) — 

See  ASSESSMENT,  IIL,  4. 
4th  R.  S.,  C.  47,  s.  13 -Cf.  5th  R.  S.,  c.  48, 

8.13  — 

"  Perwnn,  in  dririnij  upon  the  hir/htuay,  xhall 
leave  the  centre  of  the  road  on  their  riijht  hand." 

The  strict  enforcement  of  this  would  render 
impossible  the  use  of  three-fourths  of  the  higli- 
ways  of  this  Province.  The  roads  are  narrow, 
and  the  travelled  track  in  the  centre,  simply 
because  there  is  not  room  for  two  tracks.  While, 
therefore,  a  party  may  be  liable  to  the  penalty 
imposed  by  the  Statute  for  disobedience  to  its 
requirements,  it  would  be  a  strict  application  of 
the  principles  of  law  to  impute  such  a  user  of 
the  road  as  circumstances  make  necessary  and 
use  familiar,  as  negligence  which  would  make  a, 
party  prima  facie  liable  for  the  results  of  a  col- 
lision, in  the  absence  of  evidence  of  actual  neg- 
ligence. 

liamie  v.  Walker,  6  R.  &  G.,  175. 

4th  R.  S.,  c.  49,  8. 16— 

Providing  for  the  retirement  of  Street  Com- 
missioners by  rotation,  appli  3S  to  the  appointment 


1485 


STATUTES,  NOVA  SCOTIA. 


1486 


of  CommitsionerB    by  the   Municipal    Council 
mufatiit  tnutaudin. 

McDonald,  C  J.,  dinHentinij. 

Letteney  v.  J)iUon,  6  R.  &  O.,  146. 

Ith  B.  S.,  c.  53,  s.  13-Cr.  Sth  R.  8,  C.  78, 

8.  13  - 

"  Xu  memher  of  any  corporation  shall  he  re- 
liereil  from  individual  liability  for  its  debts  or 
ohliiintions;  but  each  member  thereof  shall  be 
liable  as  a  partner  to  the  same  eirtent  as  if  no 
corporation  existed;  and  in  case  any  execution 
isnucd  on  any  judgment  against  the  corporation 
shall  be  returned  nnsatis\,fied,  the  individual 
real  and  personal  estate  of  every  member  of  the 
corporation  shall  be  liable  to  respond  such 
judi/ment,  xtnder  execution  issued  thereon  in 
the  same  manner  as  if  the  same  vere  a  priiute 
di'M  due  by  such  member,  nnless  the  special  Act 
creating  the  corporation  shall  exempt  its  mem- 
bers fro7n  such  liability ;  and  any  member  who 
shall  be  so  compelled  to  pay  any  moneys  on  ac- 
count of  the  debts  of  the  corporation  shall  be 
entitled  to  credit  therefor  in  the  books  of  the 
corporation" 

An  application  having  been  made  for  leave  to 
issue  an  execution  against  an  individual  member 
of  the  defendant  club,  an  execution  against  the 
chib  liaving  been  returned  unsatistied, 

//eld,  that  section  13  of  chapter  53  of  4th 
R.  fS. ,  created  no  new  liability  on  the  part  of 
members  of  a  corporation,  but  merely  provided 
that  they  should  not  be  relieved  from  any  lia- 
bility that  would  have  attached  to  them  as  pra't- 
ners,  if  unincorporated  ;  that  the  members  of 
defendant  club  would  not,  if  unincorporated, 
have  been  liable  as  partners,  and  the  Statute 
was  not  intended  to  apply  to  such  a  corpora- 
tion ;  and,  even  if  this  were  not  the  case,  that 
the  plaintiff  could  not  hold  an  individual  mem- 
ber liable  without  proving  that  he  was  a  mem- 
ber at  the  time  of  the  return  of  the  execution 
issued  against  the  club. 

Rule  m$i  for  leave  to  issue  execution  dis- 
charged, but  without  costs. 

Scott  v.  lioyal  Halifax  Yacht  Club, 

1  R.  &  G.,  322. 

See,  also,  CLIJB« 

4th  R.  8.,  C.  53,  8. 15-Cr.  5th  R.  S.,  C.  78, 

s.  15— 

"  The  acts  of  incorporated  companies  performed 
within  the  scope  of  their  charters  or  Acts  creating 
them  Hhall  be  valid,  notioithatanding  they  may  not 
be  done  under  or  authenticated  by  the  seal  of  such 
corporations." 

Held,  that  under  this  section  the  sealing  of  a 


bill  of  sale  by  the  corporation  making  the  same 
was  not  necessary. 

Hradley  v.  McLean,  2  R.  *  C,  684. 

See  CORPORATION,  17. 
4tb  R.  8.,  c.  75- 

Held,  that  a  violation  of  this  Act  is  not  an 
indictable  offence,  and  can  Im)  prosecuted  only 
in  the  mode  prescribed  by  the  Act. 

In  re  Fra.ier,  1  R.  &  G.,  .334. 

"Whore  the  words  "convicted"  and  "con- 
viction "  are  used  in  this  chapter,  they  are  used 
in  the  most  extensive  sense,  in  which  they 
signify  giving  judgment  against  a  defendant, 
whether  in  a  civil  or  criminal  case.  lb. 

On  appeal  to  the  County  Court  from  a  judg- 
ment and  conviction  by  two  Magistrates  under 
tiie  license  laws,  the  County  Court  .Judge,  with- 
out trying  the  cause  de  7ioro,  quashed  the  con- 
viction on  the  ground  that  it  was  a  conviction 
simply  for  violating  the  license  law,  without 
iitating  the  particular  act  of  violation.  An 
appeal  was  granted  to  this  Court. 

Held,  that  the  judgment  below  must  be 
atBrmed  on  the  ground  tliat  the  conviction  had 
rightly  been  quashed,  and  further,  that  the  sum- 
mary jurisdiction  being  abolished,  the  decision 
of  the  County  Court  was  final. 

Wcatherbe,  J.,  dissenting. 

Hose  v.  Burke,  1  R.  &  G.,  94. 

4th  R.  8.,  c.  75, 88. 2  and  3- 

S.  2.  "  JVb  intoxicating  liquors  shall  be  sold  in 
quantities  less  than  ten  gallons,  to  be  delivered  at 
one  and  the  same  time,  unless  in  the  original 
package  in  which  imported,"  dr.,  <fcc. 

S.  3.  "  Licenses  for  the  sale  of  intoxicating 
liquors  shall  oidy  he  granted  by  the  Sessions  upon 
the  recommendation  of  the  Grand  Jury,  concurred 
in  by  ttvo-thirdt  of  the  members  of  the  Grand  Jury 
present,  accompanied  by  a  petition  from  two- 
thirds  of  the  ratepayers  of  the  polling  district  in 
which  the  tavern  t»  to  he  established,  praying  for 
such  license.  The  genuineness  of  the  signatures 
of  such  petitions  shall  he  established  to  the  satis- 
faction  of  the  Court,  and  such  petition  and  re- 
commendation  from  the  Grand  Jury  may  be  re- 
jected  in  whole  or  in  part  by  the  Sessions." 

Held,  not  ultra  vires,  the  Legislature  of  Nova 
Scotia,  although  it  may  to  a  certain  limited 
extent  aflfect  trade  and  commerce. 

Keefe  v.  McLennan,  2  R.  &  C,  5. 

Held,  that  a  petition  of  a  previous  year  could 
not  be  used  as  a  basis  of  a  new  license,  but  that 
a  new  petition  should  have  lieen  presented. 

/>»  re  Liquor  License,  Co.  of  Halifax, 
IR.  &C.,257. 


U87 


STATUTES,  NOVA  SCOTIA. 


14S8 


4tb  R.  S.,  c.  75.  s.  6- 

"  The  ptnnltiet  for  viulatiny  th$  law  relatinij  to 
the  tale  of  into.>  icaling  lii/iiurg  ihnll  hereafter  he: 
forthefrtt  offence  ten  dollars,  or  iniprtionmetit 
for  twenty  day$  in  the  county  or  tlutrict  gaol  in  , 
the  event  of  non-pai/menl  of  th$  Jint :  for  the 
■second  offence  twenty  dollars  or  forty  days'  im- 
prisonment ;  for  the  third  offence  forty  dollars  or 
eiijhty  days'  itnprimmnejtf ;  and  for  every  subse- 
quent offence  ciyhty  dollars  or  three  months'  im- 
prisonment." 

Thi!  wonls  "every  8ubHC((uent  offcuco"  in 
thin  <;liai)tcr  ivntl  8iibHe(|Ui'iit  otlunuea  in  h.  7  i>f  c 
1,  Acts  of  1876,  nieiui  otFcncoH  coinniittud  Hul)Be- 
(|iicntlv  to  the  last  previous  conviction. 

WiiKins,  J.,  di^ieulhiij. 

McUreyor  v.  ^fc Archer,  2  R.  &  C,  302, 

Kach  of  the  three  last  imprisonmonts  depends 
on  the  same  contingency  as  the  first,  and  they 
are  imposed  only  in  the  event  of  nonpjvynient  of 
the  tine.  The  penalties  are  money  penalties, 
and  the  nonpayment  is  visited  with  increasing 
and  fixed  periods  of  imprisonment  which  can 
neither  be  diminished  nor  extended  nor  miti- 
gated by  admission  lo  the  limits. 

In  r«  Frostr,  1  R.  &  G.,  .S54. 

4tll  R.  S.,  C.  75,  88.  4,  25,  26  and  30- 

S.  4.  Any  one  who  violates  the  provisions  of 
this  section  "  shall  be  linhlc  on  conviction  to  a 
penalty  of  twenty  dollars  for  every  such  offence, 
to  he  pvnuecHted  in  the  name  of  the  Crown,  or 
any  person  who  shall  prosecute  therefor." 

.S.  25.  "In  cases  of  appeal  the  defendant 
shall  become  bound  with  tico  sufficient  sureties 
in  a  sum  double,"  itc. 

S.  26.  "  The  bond  to  be  yiven  on  such  appeal 
or  on  issuiny  t  icrit  of  certiorari  shall  be  in  the 
same  form  as  that  in  Schedule  E,  unto  Her 
Majesty  Queen  Victoria,  her  heirs  and  succes- 
sors." 

S.  39.  "  The  Clerk  of  License  or  any  private 
prosecutor  may  bring  an  action  on  such  appeal 
bond  without  special  leave  obtained  therefor." 

Held,  that  the  party  who  instituted  a  suit 
under  the  authority  of  this  Statute  in  the 
Queen's  name,  could  not  be  compelled  to  pay 
the  defendant's  costs. 

Queen  v.  Murray,  1  R.  &  C,  58. 

The  name  of  a  relator  should  be  indorsed  on 
the  bond  before  action. 

5ee  CERTIORARI,  9-11. 

4tll  R.  S.,  C.  75.  8.  28- 

"7ft  suits  instituted  by  the  Clerk  of  the  Li- 
censes, where  the  Justice  before  whom  the  trial 


is  had  shall  ylve  judgment  for  the  prosecutinn, 
or  if  he  ijlve Judi/ment  for  the  difindant,  ulinll 
cirtit'y  there  was  reasonable  yround  for  C'lin- 
menciny  the  suit,  the  prosecutor  shall  be  fnlbj 
indemnified  for  all  costs  and  rxpenses  on  hath 
sides,  to  be  taxed  by  a  <Jnd(je  of  the  Supvihu; 
Court,"  &c. 

Iltlil,  that  this  provision  was  appli'iablo  only 
tr)  suits  tried  before  a  Justice,  and  had  no 
reference  to  actions  brought  and  prosecuted  in 
the  iSuprome  Court. 

Queen  v.  Murray,  1  R.  &  C,  SS. 

(Amercement  of  County  for  costs  certitiud 
under  sec.  28) — 

I'laintitf,  as  Clerk  of  License  obtaineil  a  (■on. 
viction  for  penalty  before  two  Magistrates, 
which  conviction  was  set  aside  on  certiorari  for 
want  of  jurisdiction.  On  application  lo  ainerco 
the  Municipality  for  plaintilT's  costs,  of  whiuli 
payment  was  refused, 

Iltld,  that  there  being  no  jurisdiction  in  the 
Magistrates  to  issue  process  or  try  tlie  cause, 
plaintifT  had  ac(|uired  no  right  under  the  Statute 
to  1)0  compensated  for  his  outlay. 

Smith  and  Tiiompson,  J.T.,  dinxenfin;/. 
Jackson  v.  Municipality  of  Cumberland , 

6R.  &.(.':,  119, 

4th  R.  8.,  C.  75,  8.  41- 

(Sessions  siiall  appoint  member  of  temperiuiee 
organization  to  sell  licjuors) — 

The  omission  of  the  (irantl  Jury  and  Sessions 
to  follow  tiie  provisions  of  this  section  cannot 
confer  upon  a  druggist  the  right  to  sell  liquors. 
Gardner  v.  Pair,  2  R.  &  (i.,  •-'•25. 

4tli  R.  S.,  C.  79,  8.  0  -  Cr.  5th  R.  S.,  C.  84, 

s.  8— 

"All  (kedx,  judgmenlH,  and  allachmentu  afftH- 
iwj  lamh  shall  be  registered  in  the  office  oj  tk 
County  or  district  in  which  the  lands  lie. " 

Per  Ritchie,  E.  J. — (Jrants,  leases  and  moi; 
gages  are  mentioned  in  subsequent  sections,  but 
no  other  instruments  are  referred  to. 

The  only  section  in  which  any  general  words 
are  used,  is  that  to  prevent  the  tacking  of 
mortgages,  section  20,  where  the  words  "other 
incumbrance  "  occurs.  Registration  of  the  docu- 
ments enumerated,  and  of  these  alone,  is  con- 
templated by  the  Act,  and  the  registration  of 
instruments  not  within  the  provision  of  the 
Statute  cannot  be  deemed  to  be  notice  of  their 
existence  and  contents  to  a  party  claiming  under 
a  deed  or  mortgage  for  valuable  consideration, 
whereby  such  a  presumption  of  knowledge  is 
raised  that  the  Court  will  not  allow  it  to  be  re- 
butted by  evidence  to  the  contrary. 

Cogswell  v.  Graham,  R.  E.  D.,  30. 


1489 


STATUTES,  NOVA  SCOTIA. 


1490 


4tb  R.  S.,  c.  29,  H.  t'i    Cr.  3th  K.  S.,  C.  84, 

».  11- 

"  Sitrh  oath  may  he  adminislfred  hy  Ihf.  Hfijw- 
Irnr  of  thi:  roniify  or  diitrir/,  nint  xhall  he  m  rer- 
tiftr.tl  upon  the  dud  ;  or  it  may  he  admiiiifitfre.il 
hy  a  Jmli/e  of  the  Sn/treme  Court,  or  n  JiiAiIre  of 
the  /Vrt.v,  or  hy  any  olhir  Itniintrar  who  ithnll 
niijn  a  eert{ficnle  thereof  declarimj  the  dale  of  the 
nttentation  on  the  deed,  and  the  name  thall  he 
rii/iMtered  thereupon  alovif  with  mcch  re.rtijhnte," 

Wliero  IV  eortiHudte  r)f  the  att.oHUtion  of  the 
uxcuiitidii  (if  n  (locil  containoil  no  diito, 

Held,  that  tho  deed  wrh  properly  recorded, 
the  wordH  of  this  Hection  iMsing  merely  directory,  j 
McKkutie  V  Lamonl,  2  R.  kV.,  SI?. 

4th  R.  8.,  c.  79,  H.  18-Cr.  5th  R.  S.,  C.  84, 

s.  17— 

"  The  certificate  of  rei/iHlry  indorxed  on  any 
deed,  docket  of  judijment,  or  attachment,  and 
lii/ned  hy  the  lieijistrar,  shall  he  taken  and  allowed 
in  all  Conrtu  an  evidence  of  the  reijlxtry." 

This  Bfcction  only  makes  tho  contents  of  the 
certificiite  legal  evidence,  not  when  it  purports 
to  he  signed  by  the  Registrar,  but  when  it  is 
[iroved  as  a  fact  to  have  been  so  signed. 

Oould  V.  McGreijor,  1  R.  kV,.,  33f). 

4th  R.  S.,  c.  79,  88. 9  and  19  -Cf.  5th  R.  8., 

c.  84,  88.  8  and  18— 

.S.  19.  "Deeds  or  mortijagen  of  lands  <lnly 
exicnted  hut  not  rei/istered,  shall  he  roid  wjainst 
any  snhseqnent  purchaser,  or  morti/aijce  for  vnliia- 
Itle  consideration,  who  shall  Jirst  reijister  hi*  deed 
or  mort'iaf/e  of  such  lands." 

Plaintiff  purchased,  in  1872,  a  propei  ty  ad- 
joining defendant's  property,  and  to  the  north 
of  it.  In  1859,  Caldwell,  who  then  owned  the 
northern  property,  granted  by  deed  to  <lefend- 
iHit  the  privilege  of  piercing  tho  south  wall  of 
his  building,  carrying  his  stove-pipes  into  the 
flues,  and  erecting  a  wall  above  the  south  wall 
of  the  building  to  form  at  that  height  the  north 
wall  of  defendant's  building,  which  was  higher 
than  plaintiff's.  This  deed  was  not  recorded 
until  1871,  and  the  plaintiff 's  solicitor  in  search- 
ing did  not  search  under  Caldwell's  name  after 
the  registry  of  the  deed  by  which  the  title 
passed  out  of  Caldwell's  possession  in  1862,  and 
did  not,  therefore,  observe  the  deed  creating  the 
easement  in  favor  of  defendant.  Defendant's 
northern  window  was  so  close  to  plaintiff's  wall 
that  it  was  plain  to  one  narrowly  observing  it 
that  defendant  had  no  separate  northern  wall, 
and  the  defendant's  northern  wall  above  plain- 
tiff's building  resting  upon  plaintiff's  southern 
wall  was  obvious  to  any  one  looking  from  the 
opposite  side  uf  the  street. 

Held,    that  the  deed  creating  the  easement 


came  within  tho  Registry  Act  ai  "affecting 
lands,"  that  pliiintiff,  however,  was  not  IkiuuiI 
by  the  registry  of  it  in  IS7I,  although  previous 
to  his  purchase,  tht.  title  having  passeil  out  of 
Caldwell  in  IS()2,  but  that  ]ilaintiff  must  Iw 
held  to  have  had  notice  of  the  casement  as  tiie 
encroachments  were  plainly  visible. 

Uoss  v.  Huntir,  2  R.  &  (i.,  44. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  that  the  continuance  of  illegal  burilens 
on  plaintiff's  property  since  the  fee  had  boon 
acquired  by  him  were,  in  law,  fresh  and  distinct 
trespasses  against  him,  for  which  he  was  entitled 
to  recover  damages,  uidess  he  was  Imund  by  tho 
license  or  grant  of  Caldwell. 

2.  That  tho  drcd  creating  tho  easement  was 
an  instrument  reciuiring  registration  under  tho 
provisions  of  tho  Nova  .Scotia  Registry  Act  (4th 
Rev.  Stats.  N.  S.,  o.  70,  ss.  9  and  10),  and  was 
defeated  by  the  prior  registration  of  the  subso- 
<|Uent  purchaser's  conveyance  for  valuable  con- 
sideratiim,  and  therefore  from  the  date  of  the 
registration  of  the  conveyance  from  Caldwell  to 
tho  party  through  whom  plaintiff  claimed  that 
ta^e  deed  of  grant  to  defendant  became  void  at 
law  against  the  grantee  in  said  conveyance,  and 
all  parties  claiming  through  him. 

X  That  to  defeat  a  registered  deed,  there 
must  be  actual  notice  or  fraud,  and  there  was 
no  actual  notice  given  to  plaintiff  in  this  case, 
such  as  to  disentitle  him  to  insist  in  equity  on 
his  legal  priority  acquired  under  the  Statute. 

Per  0 Wynne,  3.,  dissentlmj.—'Wa.t  upon  the 
pleadings  as  they  stood  on  the  record,  the  ques- 
tion of  tho  Registry  Act  did  not  arise,  and  that 
as  the  incumbrance  complained  of  had  been 
legally  created  in  18.50,  its  mere  continuance  did 
not  constitute  a  ttespnss,  and  that  the  action  as 
framed  should  not  be  sustained. 

Hoss  V.  Hunter,  7  S.  C.  R.,  280. 


-cr.  5th  R.  8.,  c.  84» 


i     4th  R.  8.,  c.  79,  8. 

I  B.  21— 

j  "A  judijment  didy  recovered  and  docketed  shall 
I  hiiid  the  lands  of  the  party  aijainst  whom  the 
judi/ment  shall  have  passed,  from  and  after  the 
registry  thereof  in  the  county  or  district  wherein 
the  lands  are  sitnnte  as  effectually  as  a  mortgage, 
whether  siich  lands  shall  have  heen  acquired  before 
or  after  the  registering  of  such  judgment  ;  and 
deeds  or  mortgages  of  such  lands,  duly  executed, 
hut  not  registered,  shall  he  void  against  the  judg- 
mentcreditor,  whoshallfrst  register  his  judgment," 

The  words  "whether  such  lands  shall  have 
been  acquired  before  or  after  the  registry  of  such 
Judgment"  are  in  amendment  of  the  law  as  it 
stood  before  the  4th  series,  R.  S. 

Louisburg  Land  Co.  v.  Tutty,  4  R.  &  G.,  40U 


1491 


STATUTES,  NOVA  SCOTIA. 


1402 


•Iiiilgmcnt  rof^iHlured  takos  iireciidiiiu^o  of  a 
(Ittud  iiiado  [)rcvi()UHly  to  a  party  '.vlio  Iiuh  yono 
iiilo  pOHHCHHion  of  till!  laiiil  at  tliu  ilatii  of  tlie 
lived,  continued  in  |ioHHeHHioii  lor  hoiiiu  yuaru, 
hut  who  liaH  liot  rccordoti  IiIh  duud  till  after  tliu 
regiHiry  of  tho  jiidgiiiciit. 

llnmlley  v.  Jihdie,  1  K.  it  <!.,  '27. 
See  MOKTilAilE,  r>(»- 
JIUUHENT,  '-'7. 

4(li  K.  8.,  c.  79,  N.  'iter,  fith  K.  S.,  c.  H4, 

8.  2;j  - 

livid,  that  this  nectiim  is  cfintrollud  liy  the 
IiiHolvont  Act. 

Alinoii  it  a/.  V.  (''rdy,  ct  al.,  K.  Iv  I).,  (5. 

4thR.  S.  c.  H3- 

See  FUAIDS,  STATUTE  OF. 

4th  R.  S.,  c.  84,  NS.  1  and  0    IT.  5th  K.  8., 

c.  92,  HS.  1  and  10  - 

An  aHHigninent  wau  made  to  ])laintifl°  for  thu 
b(in(!lit  of  cri'dilorH,  whicli  thi!  aH.signue,  liaving 
taken  poHHeHHion  of  tlie  (.-Htatu  and  etl'euts,  deliv- 
ered to  the  HegJHtrarof  Deeds  at  iiis  house,  at 
3  A.  M.,  vvitii  iuHlruetirjuH  to  record  it  as  a  deed, 
and  lile  it  as  a  liill  of  sale.  Tiie  llegistrar  did 
not  murk  it  "Hied,"  or  file  it  aH  a  hill  of  nale, 
or  iniiuher,  enter,  or  index  it  in  the  liook  kept 
))y  liiui  for  entry  of  lulls  of  sale,  hut  recorded  it 
in  tiie  \isual  way  as  a  ileed  of  land.  It  remained 
in  liisollice  until  Decendier  ."),  when  it  was,  with- 
out any  instructions  from  jilaintill",  sent  hy  nuiil 
to  the  residence  of  the  plaintifl',  who  was  not 
then  at  home,  and  who  did  not  personally  learn 
that  the  deed  had  heen  returned  until  the  (ith 
Januiiry.  On  the  0th  January  plaintiff  returned 
the  ileed  to  the  Registrar.  Jn  the  interval,  the 
goods  w(!re  seized  under  an  attachment  issued 
'i'inil  Uecemher,  and  an  execution  ujKin  a  judg-  ] 
menl  ohtained  'Jn<l  .January  against  the  assignor. 

Held,  that  the  assignment  was  of  the  class  | 
reiiuiring  to  he  tiled  under  caj).  84,  H.  S.,  4th  ] 
series,  that  the  delivering  of  the  instrument  al  i 
the  Kegistrar'a  hou.se,  with  instructions  to  file,  I 
was  Hufiioient ;  that  the  removal  of  tiie  deed 
from  the  office  could  not,  under  tho  circum-  ! 
.stances,  he  taken  advantage  of  hy  an  attaching  1 
or  execution  creditor,  who  knew  of  its  having  '■ 
lieen  in  the  office  ;  and  that  replevin  for  the  \ 
goods  could  ho  maintained  hy  the  assignee 
against  the  Sheriflf.  j 

Fisher  v.  liUhop  el  al.,  5  U.  &  (J.,  451.  | 

4th  B.  8.,  c.  86,  s.  11- 

"  All  persons  (aid  corporations  icho  shall,  i7i 
reliance  on  any  such  order  or  decree,  as  afore- 
said, make  any  payment  to,  or  permit  any 
transfer  or  act  to  be  made  or  done  by  the  wife. 


who  has  obtained  the  same,  shall,  nolxnithslnnil, 
inij  such  order  and  drrrie  vunj  then  hun'  In  in 
disehanjrd,  rerersrd,  or  vnrird,  or  at  .iniiic  U'lni, 
since  the  makimj  the  order  or  derree  hn'n 
discontinued,  be  jirotictrd  and  indemiujhd  in 
the  same  iray  in  all  resjteets  as  if  at  Ihr  timi 
of  such  payment,  transfer,  or  othvr  art,  umii 
order  or  decree  vjere  valid,  and  still  snbuistiiiij. 
without  variation,  in  full  force  and  effect,  mul 
the  separation  of  the  wife  from  her  hiinlnniil 
had  not  ce(u*ieil  or  been  discontinued ;  viihun  nt 
the  time  of  such  payment,  transfer,  or  othir 
act,  sticli  persons  or  corporatiovs  had  noiicf  i,f 
the  discharge,  rariation,  or  rever:-,al  of  sitrh 
order  or  decree." 

I'er  James,  J. — This  section  corresponds  wilii 
sec.  10  of  the  Knglish  Act,  '-'I  k  'J-J  Vict.  c.  lOH, 
with  the  excejition  that  the  words  "or  al  some 
lime  mice  I  he  tnakinn  of  the  order  or  been  divon 
tinned,"  and  "and  the.  neparation  of  the  wife  f rum 
hir hU'thand  ha-i  not  cented  or  /teen  disi'ontiiitieil." 
which  do  not  occur  in  the  Knglish  Act.  'I'ln' 
.Statute  makes  no  provision  for  registry  of  iiny 
discharge  of  the  order  as  it  does  in  respect  to  tiie 
order  itself,  so  as  to  affect  creditors  with  ion 
structive  notice  that  they  are  no  longer  to  ileal 
with  the  wife  as  a  feme  sole,  and  this  claiisi:  i.s 
inserted  to  provide  that  they  shall  he  entitled  to 
actual  notice.  Itut  notice  of  what  V  And  why 
did  the  .Statute  depart  from  the  iMiglisii  Ai.t  Ijy 
the  insertion  of  these  most  significant  wnnls'; 
The  Knglish  Act  did  not  rei|uire  them  hi.'iaiise 
the  terms  of  the  Act  m.ide  the  order  tantaiiioiiiil 
to  a  "  decree;  of  separation  "  which  is  teuiiinalilu 
hy  re-cohahitation.  Hut  the  framers  oi"  our 
.Statute  had  used  the  term,  "  decree  of  divorie," 
and  these  words  were  evidently  iiiseitid  u(iiiii 
the  consideration  that  this  expression  iiiighl  \k 
understood  as  referring  to  the  continuity  of  t'le 
separation  ;  therefor  they  meant  hy  this  sect  inn 
that  it  shall  not  he  so  understood.  The  lan- 
guage of  the  first  interlineation  is,  "nolwilli- 
standing  such  order  or  decree  may  then  have 
heen  discharged,  reserved,  varied  or  discun- 
tinned,"  and  the  second  interlineation  uses  tiie 
same  word  in  connexion  with  the  wor<l  "  Ne[)ara- 
tion  "  ;  "  in  full  fori:e  aiul  effect,  and  tlie 
separation  of  the  wife  from  her  hushand  had  nut 
ceased  or  heen  discontinued,"  showing  tiial  the 
"discontinuance"  of  the  "order"  in  tiie  iir.fl 
interlineation  means  the  "  discontinuance  "  of 
the  "separation,"  and  that  notice  of  this  dis- 
continuance was  etjuivalsnt  to  notice  of  reversal. 
Sinclair  v.  Wakefield  et  al.,  1  R.  &  (J.,  40.'). 

I     4th  K.  S.,  c.  89,  s.  6. 

"  Tt  shall  be  lawful  for  the  Supreme  Court. 
:  or  for  any  Judge  of  that  Court,  before  wlium 


1498 


STATUTES,  NOVA  SCOTIA. 


1494 


tin:  rotmiilcratiini ,  trinl,  nr  hvnrinij  of  <niy  i/iti  h- 
lion  iifcijuitiihli'  jurLHiUctioH,  or  (tnijuucli  inij'id 
(lurntii)ns  (if  liiw  or  I'ljuiti/  m<iij  rmni',  i/  Uuij  or 
hi-  ahttU  di'fin  it  rxpcitifnt  (tint  rundurivit  to  the. 
ciiils  ofjiistici'  to  ilo  so,  to  orilcr  till'  vdHf  or  any 
nulijfrt  iiiiUtrr  arininij  thcnoii  to  liv  triinxfrm-d  to 
the  jurindirtion  of  the.  h'ljiiity  Judiji',  to  he  dealt 
irith  iirrordinf/  to  the  ]irini'ii>lvn  of  iijnilulih'  jii- 
riKiiriidrnre,  and  the  cxiijini'iiH  of  th<'  ritKi'." 
Ill  (111  uctioii  liy  plaiiitiir  ii^'aiiiHt  <K'fi'iiiliiiilH, 


4th  K.  8.,  c.  90  -Cr.  5th  K.  S.,  i*.  100  - 

111  lliin  I'lovinci-  till-  t?xi'(nitiirn  iiml  iidtniniH- 
tnitorH  iiDl  i.'ily  rrpicscnt  |iiTH(iiiully  the  tie- 
(-•(ninimI,  )ml  rf|i,fMt'iil  lijin  ccniiilly  in  rcfiMt'in'c 
to  tlic  fiiltiliiit'iit  <{  all  iihli^atiiiiiii  clmr^'t.'il  u|)<iii 
his  real  fstatu.  'i'o  lioM  olIicrwiMo  would  In'  to 
violate  liotli  the  letter  uiul  the  nj>iril  of  caii.  '.M( 
of  the  Uevim'il  StatutcH,  4lh  hcrieH,  liy  which  the 
(liHtrihiitioii  anil  niaiini'i'  of  dealing  with  the 
eHtales   of  deeeased    parties  an;    rej^iilaled.      In 


on  a  policy  of  insiiiam.e,  a  third  party  claiine.l  ,  t|,j„  ^x^.^  ,)„,re  is  no  recognition  of  any  (•harge 
lo  he  interested  in  the  insurance,  aixl  forl.ade  |  „,„,„  l^,^,\  „f  ,l,.,eas.'d  as  heing  preferential, 
payment  to  plainliir  Defendants  ol.taiiie.l  u  |  ,,xcept  as  to  "dehls  <luc  on  mortgages  of  real 
ride    iiln  for  an    interplea.ler,    upon    urgumeiil  j  ,.„tate  and  on  judgimjiits  registered  in  the  life 

lime  ^  '.e  deceased,"  and  it  particularly  pro- 
viil(;s  that  this  charge  sliall  oidy  cxteml  so  far 
as  the  value  of  tin;  lamls  so  mortgaged  or  hound 
liy   such   jtidgmont,    leaving   the   mortgagee  or 


of  which  hefon;  a  .liidge  at  ('hamliers,  the 
.iiiilge,  of  his  own  motion,  transmitted  the 
cause  to  l\w  jurisdii'tion  of  the  iJudge  in  Ivjuity, 
under  4tli  It.  S.,  e.  HiJ,  s.  (i. 

J/ild,  that  the  .ludge  hud  power  so  to  trans-  i  judgment  creditor  lo  claim  as  others  after  \.U< 
nut  the  cause,  allh<mgli  he  was  not  moved  to  do  ;  vulue  of  such  pioperty  shall  have  hem  rcali/.iMl. 


NO  liy  the  eoiiiiMel  on  either  side,  and  there  waH 
MO  plea  on  e<|uitalile  grounds. 

MrKnrJi    v.  .h'nia  liis.  Co.,  'J  II.  iV  (J.,  :{-'(;; 

•_•('.  I..  'I'.,  >M. 

Siiidi/i-,  that  uniler  section  ,'{,  ciiapter  l'J4, 
Revised  .Statutes  (,'lrd  scries),  whiih  corre- 
sponded with  Ith  R.  ,S.,  c.  M<»,  s.  (),  the  Court  is 
iiM|uireil  to  interfere  when  e(|iiitahle  consii'iMa- 
tious  aris(!  in  a  legal  suit,  (even  thougii  no  exer- 
cise of  its  eciiiitahlc  powers  has  heen  solicited  hy 
tlic  jiarties,  or  called  forth  hy  the  )ileadings), 
Mu\  to  |)rovide  such  relief  as  the  cireumstaneeH 
of  the  case  demaml. 

Mchiiiw  H  a/.   V.  McLcud,  1  N.  S.  I).,  -J.-fJ. 

.SV«r  IIEPLEVIX,  -'<> 

/''  /■  Young,  ('.  .1. — 

'I'liis  section  calls  again  into  heing  the  iinre-  ■ 
Htriited  eciuitalile  powers  hcdd  hy  the  Supieme 
('unit  and  the  .ludges  thereof  hctwecii  the  years 
IS.V)  and  IH(i4,  when  the  Ai't  for  appointing  a 
•Judge  in  Kcjuity  was  passed.  "All  actions  at 
l:iw,"  is  its  language,  "  in  tlu;  Supreme  Court, 
III!  the  trial  or  arguineiit  of  whicii  matters  (jf 
iM|iiitahle  jurisdiction  arise,"  and  "  all  actions  at 
liiw  to  which  eiiuitahle  defences  shall  lie  set  up 
ill  virtue  of  chapter  !t4,  section  l'i'2  to  1()4,  and 
friPMi  section  '2{)(i  to  ,'{0(). "  In  all  such  actions  the  orilcr,  neufi'.nri',  iln-rie,  or  di'itial  of  th'  Jiutiin  oj 
J^ii|Meine  Court  siiall  have  power  to  investigate  Proliati',diri'rlly  tothi.Siiprniu  Conrl  in  IlaliJ'tix, 
mill  determine  holh  the  matters  of  law  and  ,  irhirh  Court  ■■ihall  knn:  poirer  lo  conjiria,  altar  or 
tiiuity,  or  either,  as  may  he  nece.s.sary  for  the  riri^rm  the  Hiitm-  :  and  Ihf  n/i/ii'llatil  ihidl,  iri/hin 
complete  (idjiulicatioii  and  decision  of  the  whole  thirty  dayn  from  Ihf  makiiuj  of  luch  onUr,  i^li-., 
mutter,  a  comprehensive,  and  118  I  think  a  most  I  ««/er  AMa/)/>(:a/  .  .  .  and,  also,  irilhin  ttn  dayi 
W'liDlesonie  j)rovisioii,  extending  to  every  com-  thertafter,  xhall  file  a  hond  lo  the,  Jiulje,  withtiuo 
moil  law  case,  where  ecjuity  principles  are  duly  Hure.litn  to  hf  ai>i)ro,".il  hy  hivi,  in  thf  />i'nat  niunof 
invoked  hy  plea  or  replication,  and  legitimately  ^  tiro  hundred  and  forty  dollari,  londitione.dfor  the 
»pply.  Punch  v.  Chinhohn,  'A  N.  S.  I).,  4b9.  '  payment  of  inch  co'it-t  at  may  he  awarded  aijainnt 


I  Mrl.vlliin   V.  Mrl.vltnii,  I   U.  iVC.,  H(l, 

4th  K.  S.,  c.  UU,  H.  II,  sub-sec.  I  and  'i  -IT. 

5th  R.  S.,  c.  100,  H.  11 

j      (Admiiiistratioii,    lo    whom    granted    and    in 

,  what  order)  — 

!  iSiih-seclions  I  &•_' expressly  rei|uiiiMi  citation 
when  the  widow  or  next  of  kin,  or  hoih,  do  not 
voluntarily  take  or  renounce  administration, 
and  hcforc  a  creditor  is  appointed  ;  hut  there  is 
no  provision  fm  the  citation  of  the  next  of  kin 
as  hetween  theiusclvcs. 

j  //(  re  Ihitihi,  .^i   K.  &(;.,  .ST.'.. 

4th  B.  8..  r.  IM),  K.  VI    cr.  .ith  K.  S.,  c.  100, 

H.  12   - 

(.ludge  of  I'n.hate  may  associate  anoliicr  willi 
next  of  kin  in  the  adminislralion)  — 

Coverture  is  no  disijiialilication  when  the  hiis- 
h.ind  consents,  and  the  hiisliand  may  under  this 
section  he  associated  with  the  wife  in  the  admin- 
istration. 

In  re  Iliililji,  'i  K.  &  (i.,  'M7\. 

4th  It.  S.,  €.  00, 8.S.  7 «  and  HI    IT.  5lh  K.  S., 

c.  100,  «8.  79  and  84— 

.S.   77.     "  Any  jternon  may   a/ipia/  frum   any 


1495 


STATUTES,  NOVA  SCOTIA. 


1496 


Under  5th  R.  S.,  c.  102,  s.  33,  "for  want  of 
goods  whereon  to  levy,  "  the  constable,  if  in. 
structed  so  to  do,  shall  commit,"  etc.  No  exe- 
cution to  commit  shall  issue  without  express 
order  therefore  to  the  Justice  or  Justices  from 
the  party  requiring  the  same,  instructions  to  take 
the  body  to  be  indorsed  on  execution. 

A  constable  acting  under  execution  issued 
under  4th  R.  S.,  c.  91,  held  a  "  peace  officer" 
within  tiie  meaning  nf  Dom.  Acts,  1869,  c.  •_'(), 
8.  .S9. 

McDonald,  C.  J. ,  and  McDonald,  J.,  tlissevfiinj. 
Queen  v.  Lantz,  7  R.  &  O.,  1. 

4th  R.  S.,  C.  91,  8.  31-Cf.  5th  R.  S.,  c.10'2, 

8.34— 
(Attidavit  for  appeal  from  Justice)— 
Held,  the  attitlavit  for  appeal  must  be  made 

before  the  Justice  who  tried  the  cause. 

Curry  v.  Lecras,  4  R.  &  (1.,  HI. 


him  on  mch  appea/,  and  such  appeal,  u-hen  so 
perfected,  shall  be  a  slay  of  proceedinijs," 

.S.  81.  "  The  Suprane  Court  or  any  Judije  at 
Chambers,  upon  special  cause  shewn  at  any  time 
within  six  months  after  the  time  limited  for  enter- 
in;/  and  perfectiii)  an  appeal,  may  allow  an 
appeal  upon  such  terms  as  may  seem  just,  in 
n-hich  case  the  same  proceediwjs  shall  be  had  as  if 
the  apptal  had  been  oriijinally  entered  in  the 
Court  of  Probate." 

The  Judge  of  Probate  refused  to  grant  an 
appeal  from  his  decision,  on  the  ground  that  the 
bond,  although  in  the  form  given  in  the  Statute, 
('id  not  state  what  cause  was  pending.  The 
appeal  was  then  granted  by  a  Jiulge  of  the 
.Supreme  Court  at  Chambers. 

Hdd,  that  the  bond  was  in  tiie  proper  form. 

The  appeal  need  not  be  argued  within  six 
months. 

In  re  Bath  Estate,  2  R.  &  (i.,  182  ; 
1  C.  L.  T.,  66.3. 

4th  R.  S.,  C.  91,  8.  38- 
4thR.  8.,  C.  91,  8.11— Cf.SthR.  8.,C.  192,       _  "  in  all  suits  triable  before  tioo  Jus- 

8.  7—  tices  the  summons  and  capias  shall  be  signed 

''Any  person  arrested  on  any  swh  irrit  shall !  j^^  ^^^^  Justices,  and  the  execution  in  sttch  case 
he  admitted  to  bail  by  the  officer  in  the  same  I  ^^^^^  J^^^^^  ^^^^  g^^jg^  „,j,2  g/j^,;/^  ^^,f^fyf  prtixti- 
mann--  as  in  other  cases  of  arrest ;  but  in  case  I  (.^^g^  ;,£  siejncd  by  the  two  Justices  icho  issued 
the  party  arretted  .■^hall  be  committed  to  jail,  the  :  ^^^  mesne  process  and  tried  the  cause,"  t£v..  itc 
constable  who  committed  him,  or  the  Sheriff  on  j  j^^f^^^  ^■^^^^^  unless  some  specuil  reason  is  slio\ni 
demand  of  the  prisoner  shall  take  him  befov:  the  i  ^  ^^^^^^  ^^^^^^  ^^^  ^^i^j  ,,y  ^j^g  g^me  two  Justices 
Justice  or  Justices,  when  and  where  the  cause  is  to  \  ^^^^  gjgned  tlie  writ. 

be  tried  as  often  as  may  be  necessary  for  the  trial  \  Weeks  v.  Bonham,  2  R.  &  C,  ,^77. 

of  the  ca\Lse,  that  he  may  be  present  during  such  I 

trial,  and  attend  to  the  same,  and  shall  hare  him  j  m,  u,  g,j  e.  92,  s.  31  —  5th  R.  S.,  C.  106, 
in  his  custody  during  such  time  ;  and  the  constaUe  '  g_  39_ 

or  other  officer  soconceyimj  him  shall,  if  judgment  ..  xhe  Judges  shall  have  pencer  to  direct  thai 
be  against  him  for  any  sum,  unless  he  shall  forth-  ^„  extra  panel  of  petit  jurors  shedl  be  drawn  al 
with  pay  the  same,  re-conrey  him  to  jail ;  but  any  sittings  in  Halifax  before  a  Judge  in  eq^cn 
should  the  party  so  ai-resfed  appecd  from  any    Qourt"  &C. 

jiulgment,  he  shall,  on  perfectiiig  his  appeal,  be  |  jhe  prisoner,  charged  with  feloniously  reoeiv- 
forthwith  discharged  from  prison."  jng  stolen  goods,  well  knowing,  &c.,  was  tried 

There  is  no  provision  in  the  Act  for  the  issue  g_^^^\  found  guilty  by  a  jury  ca'led  from  an  extra 
of  execution  or  other  further  process,  but  the  panel,  the  order  for  which  was  signed  by  only 
party  remains  imprisoned  by  virtue  of  the  Act,    three  of  the  Judges. 

and  under  the  judgment  until  discharged  by  the  ,  JJeld,  that  the  order  was  valid,  although  not 
plaintiff,  or   due  course  of  law.     A  voluntary    signed  by  a  majority  of  the  Judges. 


discliarge  of  the  imprisoned  debtor  operates  as 
an  extinguishment  of  all  right  to  proceed  against 
him  in  any  form  under  the  judgment. 
Frater  v.  Jenkins,20yi.  S.  R.,  (8  R.  &;fi.),494. 

4th  R.  S.,  c.  91, 8. 39,  has  been  consider- 
ably altered  in  5th  R.  S.,  c.  102,  s.  33  — 

Under  the  former,  the  constable  to  whom 
an  execution  issued  out  of  Magistrates'  Court 
was  delivered,  was  bound  for  want  of  goods 
whereupon  to  levy,  unless  otherwise  directed,  to 
commit  the  person  against  whom  the  execution 
was  levied  to  jail. 


Queen  v.  Quinn,  1  R.  &  G.,  139. 

4th  R.  8.,  c.  94,  8.  5— 

"  ]Mien  a  Judfje  has  power  to  grant  an  order, 
he  may  in  place  thereof  grant  a  ride  nisi,  re- 
turnable at  Chambers." 

3rd  R.  S.  c.  134,  s.  238  reads  exactly  the  same 
down  to  the  words  "at  Chambers"  instead  of 
which  are  the  words  "  in  Term  "  and  then  follow 
these  words,  which  do  not  occur  in  s.  5  above, 
"  and  the  Court  in  term  may  make  a  rule  return- 
able at  Chambers. "  Probably  in  the  4th  series  a 
line  was  accidentally  omitted.    In  spite  of  the 


1497 


STATUTES,  NOVA  SCOTIA. 


1498 


omission  a  Judge  at  Ciinmbers  can  make  a  rule 
returnable  in  Term. 

Oakea  v.  Tht  City  of  Halifax,  1  R.  &  G.,  98. 

4th  R.  S.,  c.  04,  8.  6- 

"  The.  ikciiiom  and  judijmentH  of  a  Judi/e  at 
Chamhern  shall  hi  all  cast-i  he  nuhje.ct  to  np/teal  to 
the  Supreme  Court  in  Term,  security  for  the  coifs 
o/^nrh  appeal  beiuij  ijiven  by  the  party  appealiiiij 
in  the  ,mm  of  forty  dollars  by  a  bond  to  the  satis- 
faction of  the  Judije  who  shall  hare  ijiren  the 
judi/ment,  and  irilhin  a  time  to  be  limited  by 
him." 

Does  not  apply  to  an  order  in  the  nature  oi 
a  writ  of  heiheas  corpis  granted  by  a  Judge 
midur4th  R.  S.,c.  99,  a.  3. 

Ih  re  A.  L.  McKemit,  2  R.  &  (;.,  481. 

Where  a  Judge  makes  an  order  and  considers 
tluit  he  cannot  grant  an  appeal,  the  English 
])i'actice  is  brought  into  operation,  and  there  the 
practice  of  moving  to  rescind  the  order  of  a 
Judge  in  Chandlers  is  of  constant  occurrence. 
Our  Statute  provides  that  in  all  cases  such 
appeals  shall  be  allov^ed  where  parties  think 
themselves  aggrieved  by  Judge's  orders.  The 
case  of  a  Judge  refusing  an  appeal  is  not  provided 
fnr  by  our  Statute,  and  in  such  case  the  English 
practice  is  to  be  resorted  to. 

In  re  Cameron's  Circus,  2  R.  &  (j.,  248. 

4th  K.  S.,  C.  04,  s.  44- 

(Constructive  service  of  writ  of  summons)  — 
Plaintiff  obtained  an  order  under  this  section 
for  constructive  service  on  defendant  who  was  at 
the  time  absent  in  England.  The  affidavit  on 
which  the  order  was  taken  was  substantially  in 
tliese  terms,  "  That  said  defendant  is  absent  from 
the  Province,  and  is  as  I  am  informed  and  believe, 
in  (Jreat  Britain,  so  that  personal  service  cannot 
be  effected  upon  him,  if  at  all,  without  great 
cxi)ense  and  inconvenience  ;  that  I  have  a  good 
and  available  cause  of  action  against  defendant ; 
that  H.  P.  is  the  agent  and  partner  of  the 
defendant  in  this  Province." 

Held,  that  the  tvffidavit  was  not  sufficient  but 
that  it  should  have  set  out  the  facts  and  circum- 
stances necessary  to  make  it  "appear  to  the 
satisfaction  of  the  Judge  "  exercising  his  own 
jiulgment  in  the  matter,  that  tlie  case  came 
within  the  terms  of  the  Statute  providing  for 
constructive  service. 

McLtllan  v.  Baldwin,  3  R.  &  C,  554. 

4th  B.  S.,  C.  94,  s.  53- 

See  4th  B.  S.,  C.  96, 8.  39. 

4th  B.  S.,  C.  94,  8.  57- 

"  Previous  to  insuing  a  writ  of  certiorari  the 


I  Judge  or  Commimoner  shall  require  the  person 

applying  therefor  to  file  sufficient  bail,  in  such 
I  reasonable  amount  as  the  Judge  or  Commissioner 
!  shall  direct,  to  respond  the  judgment  to  be  finally 
i  giren  in  the  cau-te  ;  and  the  Judge  or  Commissioner 

shall  indorse  on  the  writ  the  amount  for  which  bail 

is  filed,  with  the  names  of  the  bail,  and  also  the 
'  date  when  the  writ  ivas  allowed,  and  shall  jnit 

his  signature  thereto.^' 
I     The  ground  was  taken  in  the  rule  to  (juash  the 

certiorari  tiiat  the  bontl  tiled  was  irregular  and 

bad  in  substance  and  form. 
I     Held,  tiiat  under  tliis  ground  the  objection 

could  not  be  taken  tiiat  a  bail-piece  should  have 

l)een  filed  instead  of  a  l)ond. 
I  Tupper  V.  Murphy,  3  R.  &  G.,  173. 

4th  R.  S.,  c.  94, 8.  68-(Judgment  by  de- 
fault)— 

Per  James,  J. — 
'  Whatever  may  liave  iieeu  the  intention  of  the 
Legislature  in  authorizing  plaintiff  to  "  sign  final 
judgment  "  in  this  form,  there  is  no  doubt  tliat 
ever  since  this  clause  was  originally  inserted  in 
the  Practice  Act,  at  least  twenty  years  ago, — 
for  we  find  it  in  tlie  second  series  of  tlie  Revised 
Statutes, — it  has  been  treated  by  the  legal  pro- 
fession, in  their  ordinary  practice,  as  authorizing 
a  cheap  and  convenient  form  of  record  ;  and  if 
we  were  to  come  now  to  a  contrary  conclusion 
we  would  invalidate  numerous  sales  of  real  and 
personal  property  effected  under  executions  based 
on  records  exactly  similar  to  this.  This  considera- 
tion should  make  us  very  careful  not  to  adopt  a 
contrary  construction  of  the  clause  except  upon 
strongest  and  clearest  grounds.  But,  ajiart  from 
this  consideration,  I  have  no  doubt  that  such 
was  the  intention  of  the  Legislature.  We  must 
suppose  that  it  was  intended  to  effect  some  good 
purpose,  and  I  can  conceive  of  no  other  purpose 
it  could  serve  except  to  promote  convenience 
and  save  expense  to  suitors.  These  objects  it 
effectually  accomplished,  and  for  any  other 
purpose  the  enactment  is  useless.  That  the 
Statute  should  call  the  paper  a  "judgment" 
instead  of  a  "  record,"  which  is  the  legal  evidence 
of  a  judgment,  when  a  record  was  intended,  is 
far  more  probable  than  that  the  Legislature 
should  have  inserted  in  the  Statute  book  a  wholly 
useless  clause. 

McDonald  v.  Fergmson,  1  R.  &  G.,  70. 

4th  B.  S.,  C.  94,  8. 102- 

"  The  death  of  a  jilaintiff  or  defendant  shall 
not  caiMe  the  action  to  abate,  but  it  may  be  con- 
tinued in  manner  and  under  the  restrictions 
hereinafter  mentioned." 

Copied  from  17  Car.,  2,  c.  8  (Imperial). 


U99 


STATUTES,  NOVA  SCOTIA. 


loOO 


4tb  R.  8.,  C.  94,  8.  106- 

"  The  death  of  either  party,  beticeen  the  ver- 
(h'rt  and  the  jitdfiment,  shall  not  hereafter  be 
aliened  for  error,  so  as  such  jud/jment  be  enter- 
ed vrithin  tieo  terms  after  such  verdict,  or  such 
other  time  as  the  Court  may  allow," 

Where  the  plaintifif  recovered  a  verdict  and  a 
rule  nisi  was  granted  to  set  it  aside,  but  tlie 
plaintiff  died  before  the  time  for  entry  of  causes 
for  argument,  and  the  defendant  did  not  enter 
the  same,  the  Court  refused  to  discharge  the 
rule  nisi  and  allow  the  plaintiff  to  enter  judgment 
nunc  pro  tunc,  as  of  the  last  day  of  the  sittings 
in  which  the  cause  was  tried,  holding  that  the 
defendant  was  not  bound  to  enter  the  cause  until 
the  plaintiff's  representative  became  a  party, 
and  that  although  plaintiff's  representative  was 
not  precluded  from  having  the  rule  nisi  dis- 
posed of,  he  must,  as  preliminary  to  that  end, 
enter  a  suggestion  on  tlie  record  and  become  a 
party  to  the  suit. 

Shepherd  v.  White,  1  R.  &  C,  155. 


Ith  R.  8.,  C.  94,  8.  Ill— 

' '  Where  the  plaintijT  shall  fail  to  (jive  security 
for  costs  icithin  twelve  months  after  service  upon 
him  or  his  attorney  of  a  rule  or  order  therefor, 
he  shall  be  deemed  o?(«  of  Court." 

Held,  that  it  was  not  necessary  to  move  the 
Court  for  leave  to  enter  judgment  under  this 
section  where  plaintiff  has  failed  to  give  security 
for  costs  within  twelve  months  after  service  of  a 
rule  therefor, 

dray  v.  McKeen;  Xelson  v.  Fulton, 
2R.  &  C,  402. 

4tb  R.  8.,  c.  94,  S8.  64, 110  and  111- 

.s.  04.  "-1  fummom  for  particulars  and  order 
thereon  may  be  obtained  from  a  Jxidije  or  the  Pro- 
thonotary,  by  either  party,  u-ithout  the  production 
of  any  a^^davil,"  d-c,  li-c. 

S.  110.  '*  Any  Prothonotary,  in  (he  absence 
of  the  Judge  from  the  County,  Khali  have  power  to 
grant  orders  for  the  stay  of  proceedings  in  a  cause 
until  security  for  cosLi  be  Jikd,  upon  sufficient 
grounds,"  d:c.,  itc. 

g,  171.  .  ,  .  "the  Prothonotary  in  any 
County  .  .  .  may  grant  an  order  for  further 
time  to  plead,"  Ac,  A-c. 

Held,  that  the  power  granted  by  these  sections, 
to  Prothonotaries  to  give  orders,  is  confined  to 
the  C'cur.ty  where  the  writ  is  returnable. 

Cummings  v.  Brown,  2  R.  &  C,  303. 

4th  R.  8.,  c.  94,  8. 121— 

"Either  party  may  object  by  demurrer  to  the 
pleadings  of  the  axlverse  party,  on  the  ground  that 


I  »uch  pleadings  do  not  set  forth  sufficient  ground 
of  action,  defence  or  reply,  as  the  fa.se  may  he; 
and    H-hert   the    issue   is   joined    on    drmurnr, 
the  Court   shalt  procenl  ami  give  judgmtnt  ac- 
cording as  the  very  right  of  the  cau-tt  ami  mn'- 
,  ter  in  taw  shall  appear  unio  them,  without  nganl- 
[  iug  any  imjierftclion,  omission,  deject  in  or  Iwk 
ofj'orm,   and   no  judgment   shall    be   arresti'!, 
:  stayed,  or  reversed,  for  any  imperJ'ection,cnnissiou, 
dej'tct  in,  or  lack  ofj'orm." 

!      Here    end    all    special    demurrers,    and   all 

'  attempts  to  revive  them  must  and  ought  to  full. 

Wallace  et  al.  v.  Ross,  2  R.  &  C,  I'Jd. 

This  authority  for  objections  by  way  of  de- 
murrer  refers  only  "  to   the  pleadings  of  the 
adverse   party,"   while  sec.   86  o*  the  County 
I  Courts  Consolidation,  Act  of   1880,  prescribes 
ithat  ''there  shall  be  no  pleadings  in  a.  sum- 
;  7nary  cause,  but  the  defendant  or  his  attorne'j 
[shall,  tcithin  the  time  specified  in  the  notice 
;  therefor,  Jile  with  the  clerk  or  deputy  clerk  oj 
!  the  Court,  and  serve  on  the  plaintijf,  a  brief 
\  statement  of  the  grounds  of  his  defence."  iCc. 
i  The  section  as  to  demurrers  is  made  applioal)le 
!  to  the  County  Courts,  but  affords  no  authority 
'  for  demurrer  in  a  summary  cause  to  the  grounds 
of  defence. 

Mahon  v.  Gammon,  4  R.  &  G.,  2.32. 


4th  R.  8.,  c.  94,  8.  131- 

(Mattei  of  law  to  be  stated  on  demurrer)— 
The  only  matter  of  law  to  be  argued  iu  a 

demurrer  was  contained  in  a  note  on  the  margin 

of  the  demurrer, 
Hild,  sufficient  to  satisfy  the  Statute. 

Gourley  v.  Carter,  5  R.  &  0.,  83^ 

4th  R.  8.,  C.  94,  8.  138- 

i     "7)1  action  on  specialties  and  covenants,  the 

\  defendant's  plea  that  the  alleged  deed  is  not  his 

deed  shall  operate  as  a  denial  of  the  execution 

I  of  the  deed  in  point  of  fact  only;  and  all  other 

[  defences  shall  be  specially  pleaded,  including 

matters  which  make  the  deed  absolutely  void, 

as  well  as  those  tchich  make  it  voidable." 

Per  Smith,  J.  —  Under  a,  plea,  that  the 
defendant  "did  not  become  bound  by  said 
bond,  nor  did  he  make  and  deliver  any  such 
bond,"  the  plaintiff  would  be  bound  to  prove 
the  execution  of  the  deed  "in  point  of  fact 
only,"  viz.,  the  sealing  and  delivery  thereof. 
These  essential  facts  he  must  prove.  I  cannot 
regard  the  absence  of  a  seal,  or  want  of  delivery 
as  rendering  a  deed  "  void  or  voidable,"  as  con- 
templated by  the  SUtute.     These  are  the  essen- 


1501 


STATUTES,  NOVA  SCOTIA. 


1502 


deed  is  not  executt-il  "  in  point  of  fact 

Haztll  V.  Dyax,  2  K.  &  C 


tial   elements  of  a  specialty  without  which  a   made  payable  to  one  An.lcrson,  and  before  the 

alleged  loss  the  defendant  company  by  notice  to 
36.  i  "tti'l  Anderson  terminated   the   insurance,   and 
said  Anderson  agreed   to  terminate   the  insur- 
ance and  deliver  up  tlie  policy  to  be  cancelled. 

Hdd,  that  these  pleas  were  bad  under  sees. 
151  and  152  of  the  Practice  Act,  as  they  did  not 
allege  or  show  that  the  policy  contained  any 
conditions  reijuiring  the  action  to  be  brought 
within  six  months,  or  enaliling  the  company  to 
terminate  the  insurance  by  notice  ;  and  that  the 
objections  to  the  pleas  were  not  such  as  could  be 
obviated  by  amending  them  under  section  124. 

Caldwdl  V.  Stadaconu  Fire  A  Lift  Inn.  Co., 

1  R.  &  (;.,  2.-)9. 


4tb  R.  S.,  C.  94,  88.  144  and  146- 

(Plead;..g8  in  actions  for  wrongs  and  in  actions 
for  taking  goods,  ho.) — 

Hild,  in  action  of  trover,  that,  under  4th 
R.  S.,  c.  04,  ss.  144  and  140,  defendant  could 
not  under  a  plea  denying  the  conversion,  avail 
himself  of  the  def-snce  that  the  goods  were  not 
tlie  property  of  the  plaintiff. 

Morrison  v.  FiKhwick,  1  R.  &  G.,  59. 

4th  R.  S.,  C.  94,  8.  145— 

•'  In  actions  for  trespass  to  land,  a  plea  that 
(he  dc/endaut  did  not  commit  the  trespass  com- 
jibdned  of  shall  operate  as  a  denial  that  the 
defendant  committed  the  trespass  alleged  in  the 
jilace  mentioned,  hut  not  as  a  denial  of  the 
j'lnintiff's  possession  or  right  of  j^ossession  of 
that  place,  which,  if  intended  to  be  denied,  must 
he  traversed  speiially." 

To  an  action  of  trespass  to  land,  defendant 
pleaded,  among  other  pleas,  that  the  land  was 
not  plaintiff's  as  alleged.  The  verdict  was  for 
plaintiff. 

Held,  per  McDonald,  C.  J.,  and  Weatherbe, 
J.,  that  the  plaintiff's  possession  was  put  in 
issue  by  the  plea. 

Ar  McDonald  and  James,  JJ.,  that  the  pos- 
session should  have  been  specifically  denied,  and 
the  plea  was  not  sufficient. 

The  Court  being  ecjually  divided  on  the  rule 
for  new  trial,  the  rule  dropped. 

Emhree  v.  XoiU'i,  3  R.  &  G.,  82. 

4th  R.  8.,  c.  94,  ss.  151  and  152— 

S.  151.     ",4  plaint ij' or  difendant  may  aver 


4th  R.  8.,  C.  94,  8. 152- 

"  The  general  ivsiw,  and  all  general  plea.'<,  a»-« 
abolished,  and  every  pleading  shall  specify,  par- 
ticularly and  concisely,  the  facts  intended  to  be 
denied." 

Defendants  pleaded  as  to  certain  agreements 
alleged  to  have  been  made  by  them  under  seal 
that  the  alleged  deeds  were  not  their  deeds,  and 
they  did  not  undertake  and  promise  as  alleged. 

Held,  that  under  4th  R.  8.,  cap.  94,  s.  l.Vi, 
an  objection  could  not,  under  the  pleas,  be 
taken,  to  the  authenticity  of  the  seals,  affixed 
to  the  agreement  as  the  seals  of  the  defendant 
companies. 

Gregory  v.  The  Halifax  a7id  C.  B.  Railway  tt- 
Coat  Co.  el  al.,  4  R.  &  G.,  436. 

Affirmed  on  app«al  to  the  Supreme  Court  of 
Canada,  ICth  February,  ISSo.     Caa.  Digest,  4,34. 

Leave  to  appeal  to  the  Privy  Council  refused 
3rd  April,  18S6.  Cas.  Digest,  544. 

Per  .Sir  \Vm.  Young,  C.  J. —The  plea  of 
nunquatn   indebitatus  in  all   cases,  as  I  think. 


ptrformance   of  conditions  ptrecedent  generally  ;   and  a  fortiori  when  pleaded  to  a  policy  of  in- 
md  the  opposite  party  shall  not  deny  such  aver- 
ment generally,  but  shall  specijy  the  condition  or 
conditions  precedent  the  performance  of  which  he 
intends  to  contest." 

S.  152.     C;eneral  issue  abolished. 

Plaintiff,  in  an  action  on  a  policy  of  insurance, 
referred  in  his  declaration  to  "the  condit-  ns 
indorsed  on  the  policy,  and  which  constituted 
the  basis  of  said  insurance,"  but  he  only  set  out 
one  condition  referring  to  notice  and  proof  of 
loss,  alleging  that  it  was  the  only  condition 
material  to  his  cause  of  action,  and  he  averred 
general  performance  of  conditions.  Defendant 
pleaded  that  the  action  was  not  commenced 
within  six  months  after  the  alleged  loss,  and  the 
same  was  not  sustainable  under  the  said  condi- 
tions indorsed  on  said  policy;  and  by  another 
plea,  that  by  said  policy  the  loss,  if  any,  was 


surance,   is  not  only  demurrable,  but  is  abol- 
ished, and  may  be  struck  out  as  of  no  avail. 
Barrett  v.  The  Isolated  Risk  Ins.  Co., 

1  R.  &  G.,  215. 

4th  R.  8.,  C.  94,  8.  188-Cf.  5th  R.  8.,  c, 

104,  O.  XL.,  R.  23— 

''During  the  Uvea  of  the  parties  to  a  judg- 
ment or  those  of  them  during  ichose  lives  execu- 
tion might  formerly  issue  within  a  year  and  a 
day  xcithout  scire  facias,  execution  may  issue 
without  a  revival  of  the  judgment,  at  any  time 
within  six  years  after  the  judgment." 

Under  this  section  a  plaintiff  has  six  years, 
instead  of  the  year  and  day  at  Common  Law,  in 
which  he  may  issue  execution  upon  a  judgment 
recovered  ;  nor  is  a  judgment  void  if  more  than 
six  years  were  to  elapse  before  execution  sued 


1503 


STATUTES,  NOVA  SCOTIA. 


1504 


out.  Having  suetl  out  a  first  execution  within 
six  years  of  judgment,  tlie  law  haH  not  declared 
that  it  shall  become  necessary  to  issue  the  next 
execution  within  six  years  from  the  issuing  of 
the  one  last  previously  issued. 

Cochran  v.  Bell.,  3  N.  S.  D.,  488. 

4th  B.  S.,  c.  94,  8. 189- 

( Reviving  judgment  and  entering  sugges- 
tion)— 

/Vr  Ritchie,  K.  J.— The  party  desiring  the 
execution  may  obtain  leave  to  enter  a  sugges- 
tion, but  there  is  no  autliority  for  his  making 
the  suggestion  without  leave,  and  such  leave  is 
not  granted  as  a  nuitter  of  course,  nor  ex  parte. 
Barton  et  al.  v.  Baldivin,  R.  K.  I).,  39'-'. 

4th  K.  S.,  C.  94,  8. 191- 

"  The  Su/nvme  Court,  and  trtry  Judijt  thtrto/, 
nhidl  at  all  timex  have  the  power  oj'aimndiiuj  nil 
de/ecti  and  trrorx  in  any  jironcdini/i  in  civil 
camex,  whether  there  he  anythimj  in  writinij  to 
amend  or  not,  awl  whethi  r  the  defect  or  error  he 
/hat  oj  the  party  or  not." 

In  an  action  for  trespass  to  real  estate  and  tres- 
I)ass  to  personal  property,  the  jury  found  for 
defendants  on  one  material  issue  as  to  trespass 
to  real  estate,  but  also  found  a  general  verdict 
for  plainti5. 

J'er  James,  J.— Under  above  Statute  the 
Court,  on  appeal,  could  amend  by  directing  a 
verdict  for  defendant  on  the  claim  for  trespass 
to  real  estate. 

Per  Curriam.— Verdict  must  be  set  aside. 
McKinnon  v.  McNeill  et  al.,  4  R.  &  O.,  25. 


Equity  ;  he  hears  the  application  for  the  t  dv, 

and  if,  on  application  so  made  and  unopjM)aeil, 

he  thinks  that  no  sufficient  grounds  arc  shown 

to  induce  him  to  grant  it,  I  do  not  see  any  good 

reason  why  he  should  be  called  upon  to  hear  llic 

same  arguments  again   addressed  to  him,  witii 

the  only  difference  that  tlien  the  other  parly 

should  be  heard  in  oppoiJtion,  and  at  ("ommoii 

Law  tiie  Statute  gives  an  appeal  from  the  ruling 

of  the  Judge  who  tried  the  cause  to  the  (.'oun 

I  in  hanco,  where  the  rule  is  made  returnable  ; 

\  but  in  Kiiuity  the  rule  is  made  returnable  before 

the  Judge  in  Ecjuity  liimself.    The  right  to  take 

I  the  rule  at  Common  Law,  where  the  Judge  lias 

I  refused  it,  is  strictly  statutory,  and  the  terms 

of  the  Statute  must  be  strictly  complied  with, 

whicli,  it  appears  to  me,  can  only  be  done  al  the 

Sittings,  or  on  Circuit  in  Common  Law  or  Iviuiiy 

cases  tried  there.     See  sec.  212  of  the  Practice 

Act,  as  to  the  time  and  mode  of  taking  out  the 

rule.     There  are  no  terms  or  sittings,  so  called, 

in  the  E(iuity  Court,  which  is  always  open,  and 

if  in   this  case  we  overlook  the   letter  of  tlie 

Statute,  which  requires  that  the  rule  should  be 

j  taken  out  the  last  day  of  the  Term  or  Siltings, 

!  or  such  extended  time  as  the  Judge  shall  allow, 

J  and  as  far  os  possible  act  upon  its  spirit,  we 

j  must  come  to  the  conclusion  that  the  plainliff 

allowed  too  much  <'me  to  elapse  before  lie  did 

I  so.      The   issues   were   tried    and    the   verdict 

i  found  on  the  25th  September,    1875,  and  the 

1  rule  was  not  taken  out  till  the  30th  Octol)er 

I  following.     I  think,  therefore,  that  if  the  plain- 

I  tiff'  had  the  right  of  taking  the  rule  under  the 

I  Statute,  he  has  lost  it  by  the  delay. 

Eaton  V.  Weatherbe,  R.  E.  0. ,  48. 


4thB.  S.,e.  94,  8.210 - 

"  It  shall  be  lawful  for  the  presiding  Judge 
at  the  trial  of  any  cause  ichen  he  may  deem  it 
right  for  the  j)?()yoses  of  justice,  to  order  an 
adjournment  for  such  time  during  the  Term  or 
t''>ittings,  or  to  the  next  Term  or  Sittings,  and 
subject  to  such  rules  and  conditions,  as  to  costs 
or  otherwise,  as  he  may  think  fit." 

At  the  trial  the  cause  was  continued  a  day  to 
enable  plaintiff  to  get  a  deposition  which  could 
not  be  found. 

Held,  that  this  was  no  objection  to  the  verdict 
for  plaintiff,  as  the  Judge  had  discretion  under 
aection  210. 

Foster  et  al.  v.  Lamie,  3  R.  &  C,  269. 


4th  R.  S.,  C.  94,  8.  212- 

The  reason  for  allowing  the  rule  for  a  new 
trial,  to  be  taken  out  under  the  Statute,  in 
cases  tried  on  the  Common  Law  side  of  the 
Court,  when  the  Judge  refuses  it,  does  not  seem 
to  apply  to  cases  tried  before  the  Judge  in 


4th  B.  S.,  C.  94, 8.  265  - 

'  Per  Smith,  J.— By  this  section  it  is  rendered 
"competent  for  the  party  suing  out  the  writ  of 
execution  to  direct  by  indorsement  in  wiiat 
manner  it  is  to  be  executed,  which  direction 
the  officer  must  ol)ey."  Does  this  not  mean  to 
meet  the  difficulty  which  might  reasonably 
occur  from  the  peculiar  nature  of  our  writ  of 
execution  ?  If  it  were  simply  a  writ  of  cnpia- 
ad  xatixfaciendum,  no  further  directions  coiiUl 
possibly  be  required  than  those  embodied  in  it. 
Our  writ  may  be  considered  a  combination  of 
the  Jieri  facias  and  capiax  ad  satisfaciendum, 
under  which  the  Sheriff  is  authorized  to  do  what 
in  England  would  require  three  writs  to  accom- 
plish. 


Gavaza  v.  Black,  3  R.  &  C,  r29. 
See,  also,  EIECUTIOX. 

4th  B.  8.,  C.  94,  88.  283  and  285- 

S    283.     Judge's  order  as  to  debts  due  by 
third  parties — 


1505  STATUTES,  NOVA  SCOTIA. 

Kxocutioii  may  isHiie  in  (lofault  of 


1506 


S.  '285. 
payment — 

H'lil,  that  tlif  true  uonstnmtion  of  thuse  sec- 
lions  is,  that  thmc  is  powur  to  make  an  oiiler 
iiK'ainHt  till!  garni.slioe  for  payment  of  his  delits, 
as  and  when  tlioy  l)ucome  payable,  instead  of 
making  a  fresh  order  as  caeh  falls  due. 

AVttwr  V.  Mc Arthur,  'A  li.  &  (".,  49H. 

4th  R.  Sr,  c.  94, 88. 290  and  295- 

Our  praetieo  Aet  provides  that  the  form  of  the 
writ  of  annunons  shall  be  that  given  in  the 
scheduio  No,  16,  whieh  form  simply  alleges  that 
the  defendant  withholds  the  possession  to  which 
the  plaintiffs  or  some  or  one  of  them  ehiims  to 
he  entitled.  The  writ  does  not  claim  the  ex- 
clusive possession  of  the  premises,  hut  the  pos- 
session which  the  defenihmt  withholds,  and  to 
which  the  plaintiff  is  entitled,  though  only  as 
tenant  in  eonnnon.  .Section  295  of  the  same 
Act  provides  that  the  defenihmt's  plea  shall  be 
conKncd  to  a  denial,  in  whole  or  in  part,  of  the 
pLintitf's  right  to  the  possession  claimed,  or  to 
.1  right  of  jjossession  in  himself  with  the  plain- 
titr,  or  to  a  denial  that  he  was  in  possession  of 
the  whole  or  any  part  of  the  premises,  at  the 
lime  of  the  action  brought,  and  is  not  withhold- 
ing the  same.  He  is  not  permitted,  therefore, 
to  plead  that  the  plaintiff  is  tenant  in  eonnnon 
with  a  third  party  who  is  not  joined  in  the  ac- 
tion as  plaintiff;  but  yet  one  of  the  grounds 
liiken  against  the  verdict  is  that  it  appears  by 
llie  evidence,  that  some  of  the  tenants  in  com- 
mon were  not  joined,  aa  if  that  which  cannot  be 
pleaded  as  a  legal  answer  to  the  plaintiff's 
Jcclaration,  is  still  a  legal  defence.  A  tenant 
in  eonnnon  of  undivided  property  is  entitled  to 
possession  of  every  inch  of  it,— only  possession 
with  the  other  tenant  in  eonnnon,  it  is  true,  but 
still  possession. 

The  question,  under  the  writ  of  summons  and 
picas  prescribed  by  our  Statute,  is,  not  whether 


lakimj,  or  for  an  unlairfiU  detention,  whether 
the  oriijinal  takinij  may  hare  hem  lawful  or  not." 

Where  there  is  no  complaint  of  unlawful  tak- 
ing, there  nnist  bo  a  demand. 

ijmtire,  whether  the  demand  in  sui;h  ease 
should  be  pleadcMl. 

IniiHi  V.  (f'reenwooU  el  al,  2  R.  &  ().,  'J. 

4th  K.  Sm  C.  94,  88.  329-345- 

There  is  nothing  in  these  sections  inconsistent 
with  the  fundamental  rule  that  the  defcmlant 
named  in  the  writ  is  the  person  from  whom 
ahino  the  goods  are  to  bo  replevied,  and  who  is 
to  answer  to  the  jilaintiff  for  takinj^  and  detain- 
ing them,  and  to  have  a  return  of  the  goods  if 
he  shows  hiuLself  entitled  thereto,  nor  with  the 
converse  that  if  the  goods  are  not  found  in  tha 
possession  of  the  defendant  named  in  the  writ, 
the  writ  is  not  applicable,  and  cannot  be  exe- 
cuted. 

Franer  v.  liriire,  3  R.  &  C,  61. 

4th  R.  S.,  C.  94,  8.  330- 

This  section  prevents  the  replevying  of  goods 
sei/.ed  by  and  in  the  custody  of  the  Sheriff, 
under  process,  out  of  the  Courts  therein  referred 
to,  though  such  goods  are  those  of  a  third  party, 
a  stranger  to  the  cause  in  which  the  process 
issued  ;  and  where  other  defendants,  acting  in 
the  Sheriff's  aid  and  under  his  authority,  are 
joined,  the  writ  will  be  set  aside  as  to  all  the 
defendants. 

Carty  v.  lionjieft  et  al.,  .*}  R.  &  C,  293. 

4th  R.  S.,  c.  94, 88.  347  and  3S0- 

S.  ;U7  provides  that  action  may  proceed 
against  defendants  who  have  been  served. 

.S.  .350  provides  that  suggestion  may  be  made 
as  to  absent  defendants,  "  and  the  truth  of  such 
swjijeKtion  shall  be  inquired  into  on  the  trial." 

Plaintiff  entered  on  the  record  a  suggestion 


tiie  defendant  withholds  the  possession  to  which  '  '-'"^*'  '-'"^  Canada  Imprf)vement  Company,  one  of 


iiU  the  owners  may  be  entitled,  but  whether  he 
withholds  the  possession  to  which  the  particular 
claimant,  from  whom  the  possession  is  withheld, 
is  entitled.  It  is  true  that  section  290  reijuires 
tlml  "  the  names  of  all  the  parties  in  whom  the 
title  is  alleged  to  be  "  should  be  mentioned  in 
t'lu  writ,  but  that,  of  course,  means  the  correct 
tliiistian  name  and  surname  of  each  of  the 
claimants  in  whom  the  title  is  alleged  to  be,  and 
from  whom  the  possession  is  withheld. 

Ellis  et  al.  v.  Colonial  Market  Co. , 
3  R.  &  C,  196. 

4th  R.  S.,  C.  94, 8. 329-Cr.  5th  R.  S.,  C.  104, 

0.  XL  v.,  R.  1- 


the  defendants,  was  absent  out  of  the  Province 
when  the  writ  of  summons  was  issued,  and  on 
that  account  could  not  be  served  with  process. 
The  suggestion  was  not  traversed,  and  it  was 
contended  by  defendants  that  it  had  not  been 
proved  at  the  trial,  and,  therefore,  that  plaintiffs 
should  have  become  non-suit  under  4th  Rev. 
Stats.,  c.  94,  sees.  .S47  and  .S.50,  and,  further, 
that  the  defendant  could  have  been  served  under 
section  41,  of  the  Canada  Joint  Stock  Companies 
Clauses  Act  of  1869  (c.  12  of  1869),  made 
applicable  to  this  Company  by  c.  119  of  1872, 
sec.  9. 

Held,  that  the  suggestion,  if  the  truth  of  it 
was  denied,  should  have  been  traversed  by  de- 
"  Replevin  may  be  browjht  for  an  tinlawfd  \  fendants,  and  that  the  section  of  the  Canada 
50 


1607 


STATUTES,  NOVA  SCOTIA. 


I'iOS 


Joint  HUhU.  (^lm|^anlc9  ClauHcs  Act  rtfciritl  to 
dill  not  iiiial)l>;  mTviuu  to  \»'  iiiiulc  liy  any  otlicr 
than  the  accuMtunu'd  oliiijur,  nor  hoyond  Uiu 
jiirimliotion  of  llit^  Court, 

llmjury  v.  Thi  Jfa/i/ax  and  C.  II,  It'y  and 
Cold  Co.  et  at.,  4  K.  it  (1.,  4;t((. 

Attinneil  on  apiH^al  to  llie  Siiiiifiiio  Court  of 

(y'unada. 

CaH,  DiguHt,  4.S4. 

4tli  K.  S.,  c.  01, 8. 355    IT.  Titli  K.  S.,  C.  101 , 
O.  LXI- 

"  Any  cinHUjniie,  liy  wriliinj  xiijiud  by  Ihi  aswj- 
nor  of  l/ir.  vntin:  iiihri'*!  in  any  rliosc  in  ac/ion 
J'oiindid  op.'iny  ronlrarl  fur  iHiymcnl  of  mom y 
only,  or  on  any  jiulijmtnl,  dtvrtt ,  or  ordvr  for 
paymtnt  of  momy  only,  and  who  nould.  han  luen. 
fHlilltd  to  mainfain  a  ikiV  //(  h'unify,  ax  sni:h 
mniijntt,  to  enforce  such  contract  or  the  iiuynitnl 
of  such  money,  and  the  ex'-rulor  or  administrator 
of  liwh  uisii/ncK,  shall  l>e  i  ntilli.d,  in  his  on-n 
name,  lo  maintain  such  jiirsonat  action  in  the 
Su/rretnt  Court,  and  hare  snchjinal  jmijment  and 
execution  in  as  full  a  viunnir  as  the  person  ori'ji- 
nally  entitled  to  swh  chose  in  action,  judijmeut, 
decree  or  order,  and  n'hose  intirest  has  Imn 
amijne.d,  miijht  have  had  or  done,"  Ac. 

Per  Townshuiid,  J.,  doli vising  the  judgment 
of  the  ('ouit,  the  words  "  in  his  own  name  to 
maintain  auuii  personal  action  "  simply  give  llie 
assignee  of  a  judgment  the  same  right  to  sue  in 
his  own  name  on  the  jiulgment  liiat  they  do  to 
sue  on  a  cliosc  in  action,  i.  e.  to  bring  an  action 
of  debt  on  the  judgment.  Ueviviug  a  judgment 
is  not  "  maintaining  a  personal  action."  A 
judgment  must  be  revived  in  tlie  name  of  the 
original  parties,  or  their  legal  representatives  in 
case  of  death. 

Jost  V.  McNeill  et  a/.,  '20  N.  S.  K., 

(8  R.  &  (1.),  159. 


sh<dl  hare  In  in  acc(  pted  Imnafdr  acrnmpnninl  l,ij 
the  poisissioH  of  the  instrummt  uxsliinnl,  and 
without  knowliiliir  ofthefrsl  asxii/nno  iil." 

I'lr  'I'liompson,  .J.  --  Win  re  an  luiiMii  is 
brought  by  an  assignei^  in  liic  n.ime  ot  I  he  ansi),'- 
nor,  and  tlie  assignment  is  pleaded,  a  re  iilicaliiiii 
is  good  setting  up  tiiat  tlie  action  is  brcmnht  liy 
the  assignee. 

I'umsey  if  al.  V.  Cnunin'jham,  ti  It.  k  (1.,  .'i.'iT. 

Itli  R.  8.,  C.  01,  s.  351 

//./(/,  notiiH!  not  necessary  where  dchtur 
assents  to  the  asHignmcnt  and  promises  to  pay 
assignee. 

Also,  that  del)t(tr  ah)ne  could  take  ailviiiitagc 
of  want  of  notice,  that  claimants  undiT  suhst- 
(|m;nt  bill  of  sale  or  mortgage  could  not. 

Words  "due  and  payable  by  the  defend  ml  " 
cannot  be  read  as  though  the  words  "to  the 
plaintiff  "  were  ad<led. 

Parsons  v.  MacLean,  .'}  U.  &<!.,  40.'). 

Defendant  was  indebted  to  plaint  ill's  us 
signor,  and  upon  demand  of  the  amoinit  by  the 
assignee,  acknowledged  the  indebteiliiess  !iii(l 
vcju  'sted  time  for  payment,  promising,  in  (  hii 
sideration  of  the  forbearance,  to  pay  the  amniiiii 
to  plaintiir.  Plaint  ill'  suing  for  the  ikKl, 
objection  WHS  taken  that  he  was  obligiMl  ;is 
assignee  to  give  fourteen  days'  notice  tnidci  the 
Statute. 

Held,  that  the  forbearance   to  sue  was  g 1 

consideration,  and   that   plaintitV  coidd    recovir 
on  an  accomit  stated. 

Parsons  v.  Mac  Lean,  5  R.  &  (!.,  4'>- 


4th  R.  8.,  c.  04,  8.  370- 

''Kcery  person  who  heivij  surety  for  the  deU 

nrdntij  of  another,  orbeimj  liahle  with  iinolhir 

fur  any  debt  or  diity,  shall  jniy  such  deld  nr 

perform  such  dnty,  shall  be  entitled  to  /(div 

4th  R.  8.,  C.  04,  SS.  355  and  350 --tf.  6th  j  ussiijned  to  fiim,  or  a  trustee  for  him,  ennj 


R.  S.,  c.  104,  O.  LXT 

{Assigmnent  of  chose  in  action)— 
tlonstruction  of,  as  to  whether  the  right  to  sue 
in  assignor's  name  is  taken  away  or  not. 

ThmnpsoH  el  al.  v.  Ackhurst,  6  R.  &  (!.,  1. 

4th  K.  8.,  c.  04,  s.  356- 

"  Upon  the  execution  of  any  such  assiijnmtnt, 
the  riijht  of  the  assiijnor  to  release  or  sue  upon 
such  chose  in  action,  jiidynienf,  decree  or  order, 
shall  wholly  cease  and  deten-mint  ;  and  in  case  it 
shall  happen  that  there  .shall  hare  been  more  than 
one  assiijmmnt  made  by  the  same  person,  the 
assiijnme.nt  thereof  Jirst  tmule  bona  fide  shall 
operate  to  transfer  the  riijht  to  release  or  sue  upon 
he    same,   unless  the   second  assiijnment  thereof 


jmlijment,  spiciully,  or  other  securiti)  vUhh 
shall  be  held  by  the  creditor  in  respect  of  .siid 
debt  or  duty,"  &c. 

This  section  is  a  transcrii)t  of  Imperial  Ail, 
19  &  '20  Vict.  e.  97,  s.  5,  and  introduces  a  ik« 
and  remedial  clause  into  the  practice  of  tin 
Courts,  and  extends  to  co-debtors,  being  cm 
defendants,  as  well  as  to  sureties.  The  olijict 
of  the  section  was  to  give  the  co-surety  ui 
co-debtor  a  prompt  and  ellieacious  remedy  fui 
obtaining  contributiim. 

Exchamje  Hank  v.  Brown,  2  R.  &  C.  •">"■'■ 

4th  R.  8.,  c.  05,  8. 6- 

''Q'leslions  in  eiiuity,  in  which  the  Juihji'  i» 
Equity  may  be  interested,  or  have  been  proh- 


150!) 


STATUTES,  NOVA  SCOTIA. 


1510 


niiinallij  n.iiiTrnnl,  xhitU  hr  Immijht  li</i,rr.  our  j  in  wliiuli  it  would  lie  lij-hi  or  just  to  iHHiic  <mi«. 
nr  ninn:  ,hidijrn  itf  the.  Siijii'vme  t'nurt,  ac-ord-  j  'I'lu.'  icniedy  at  law  bciiiK  iuli'.nuito,  an  injunu- 

tion  waH  rcfuNud, 

Vniyliloii  V.  Jtnkim  U  nl.,  5  H.  &  (i.,  352. 


iii'l  to  thv  iKitiirt;  i>f  ihv  ritn< 

Kilcliii',  K.  .1.,  whi'ii  at  llic  liar,  had  lici  ii  pro- 
IVHHionally  conHidtiul  in  rt^fcioiicc  to  tliu  8iiit, 
wliicii  «aM  afterwardH  inMtitiitcd  liy  liill  in 
i(|iiity. 

//'/'/,  that  under  tliis  Ncetion  liii  was  dis- 
'|Ualiliud, 

llnir'n  V.    Wiifhn ,  W  \{.  &  (",,  .'{•JCt. 

nil  K.  S.,  r,  0.i,  s.  18- 

"III  case  of  dvfauU  fur  muit  nf  n/ipcnrnnee 
mid  ((HHWi'r.  !,)•  irfiirc  idl,  the  )iiii/<  rial  furlx  nf 
till-  rtiHf  ir/iirli  iiititic  the  jihlhUiff  to  i<iniliddv 
riliif  <in'  inhiiiUvdhij  the  dvfi'.ndnnl,  the  Court 
I, mil  llii:riu)iiin  innkr.  siirh  onhr  iix  the  riijhl 
mid  Jiislin  iif  till-  nisi'  shall  rnpiur,  hoth  (is 
nijiirils  the  nlirf  priiyid  for  and  the  costs  of 
the  suit." 

A  Hj)ouial  vcrilict  in  ejectment  had  lieeu  laken 
for  phiintifis  l)y  conHcnl,  sulijecl  to  the  opinion 
cif  tlie  Court.  Jlai)pearcd  at  theai-j,'unient  that 
the  action  had  l)een  lirouglit  in  the  name  of  Home 
only  of  the  individual  incinl.'er.s  of  a  corporation, 
and  not  in  tlie  name  of  the  coipofation  itself. 

//(/</,  Young,  V.  J.,  disseiiliiiij,  that  the  ver- 
ilict  must  he  Hot  aside,  with  costs  of  trial  and 
iif  aij.'unient,  and  that  an  amendment  without  a 
nrvv  ti'ial,  as  granted  in  /loiifilier  v.  KiiofH:,  '2 
Old.,  77,  woidd  not  be  allowed,  the  amendment 
in  that  ease  without  a  now  trial  heiug  granted 
solely  on  account  of  its  peculiar  cii'cum.stances. 

.\  new  trial  was  granted,  with  leave  to  the 
pliiiul  ilTs  to  ameiul  by  adding  tho  names  of  other 
lilaintiflfa. 
Huithnmn  li  al.  v.  McKeuM  el  aL,2  Old.,  159. 

4th  K.  S.,  c.  0.;,  88.  31  and  32- 

Sce  NEW  TRIAL,  3-'. 

ilh  R.  8.,  c.  0.1,  8.  .'i3- 

"/;i  (ill  cases  of  lirmch  of  contract  or  other 
injury,  inhere  the  iiartij  injured  is  entitled  to 
maintain  and  has  hroiight  an  action,  he  may, 
in  like  case  and  manner  as  hereinbefore  pro- 
vided, with  respect  to  mandamus,  claim  a  writ 
"f  injunction  against  the  repetition  or  continu- 
unce  of  such  breach  of  contract  or  other  injury, 
or  the  committal  of  any  breach  of  contract  or 
injury  of  a  like  kind  arising  out  of  the  same 
''iiiiract,  or  relating  to  the  same  property  or 
ri'jht;  and  he  may  also,  in  the  same  action, 
include  a  claim  for  damages  or  other  redress." 

Held,  that  by  this  section  and  the  subsequent 
iiiiM  relating  to  injunctious,  the  power  to  grant 
an  injunction  was  not  enlarged  to  cover  all  cases 


ttliR.  N.,  c>0.1,  R.  73- 

"Aii  n/i/iinl  shall  in  nil  rnsrs,  rxirpt  mnllrr^ 
oj  /iraiiin  or  of  rosfs,  //,  /rum  tnry  dtri.^iou, 
ordir,judgminlaud,  dirnt  n/thc.Judgi  in  Kquily 
/o  thr  Sii/iri'itK  Court  in  haiir,"  ilr,,  ifr, 

A  ground  of  appeal  setting  out  that  the  .Judge 
erioiuu)usly  decided  that  the  demurrer  lieing 
had  in  part  was  had  altogether,  and  that  under 
the  practice  of  the  Court  the  said  .ludgi!  .shotdd 
have  ..Mveii  judgment  upon  the  whole  record, 

J/ild,  b,id,  as   reluiiug  only  to  practice  and 
coming  within  the  exception  in  this  section. 
IV,  ilA.  Ify  Co.  v.   ir.  C.  IVy  Co., 

W  K.  &'.  v.,  .17tt. 

The  expression  "  matters  of  practice,"  which 
arc  not  sidiject  to  appeal,  refi^rs  only  to  those 
matters  of  mere  procedure  in  which  tho  Judge 
has  a  discretion  hut  not  involving  any  legal 
principle. 

.?cc  PRACTICE,  101. 
4thi:.  8.,  c.  ».?,  s.  n- 

"  77i»  inlcHlion  loappial  shall  I ir,  siguijled  by 
pi  lit  ion  succinctly  slati'ig  Ihv  grounds  addrensed 
to  Ihi  Judge  in  Ki/nily  and  arromjinniid  by  the 
cerlijirnlc.  o/coiinsd  (not  bring  the  altomry  in  the 
cause),  that  in  his  jiulgment  there  is  rea.wnablc 
cuiisi:  of  appeal." 

A  ground  of  appeal  setting  out  that  the  judg- 
ment is  contrary  to  law,  and  the  allegations  and 
statements  appearing  in  the  hill  and  demurrer 
and  the  Statute  therein  referred  to,  and  also  a 
ground  setting  out  that  tho  judgment  should 
have  been  in  favor  of  the  defendants  for  the 
reasons  and  grounds  raised  by  the  demurrer, 
"  wliieh  said  reasons  and  grounds  said  defendants 
here  repeat  as  fully  and  to  the  like  effect  as  if 
they  were  set  out  at  length." 

Ifild,  to  be  of  no  avail  as  being  too  general 
and  indefinite. 

W.  <t-  A.  K'y  Co.  V.  W.  C.  IVy  Co., 

3R.  &C.,.376, 

Appeal  must  be  certified  by  counsel. 

Queen  v.  Donovan,  6  R.  &  G.,  19. 


4th  R.  8.,  c.  0.7,  8.  75- 

"  The  pelilion  shall  be  presented  within  ten 
days  from  the  date  of  the  decision,  order,  judg- 
ment or  dfcree  appealed  from,  if  the  apjttllant 
reside  in  the  County  of  Halifax,  fourteen  days  if 


mil 


STA'niTKS.  NOVA  SCOTIA. 


1512 


i«  mitf  n/hrr  Cnnnhj  in  \(im  Srolitt  /ini/ir/-,  awl, 
hrintif  ilityx  i/in  ('n/ir  Hrflim,"  il-''. 

//</'/,  iliiil  llin  titiiii  within  wliiili  iiii  ii|ip<'iil 
imiHt.  lie  tiiUrn  fiKiii  II  ilccMHiiin  of  iIm'  Ki|uily 
Coiirl,  iiMilor  iIiIm  Hrrtioii  niiiH  frinii  tliu  iliiy  "ii 
wliii'li  iIm^  ili'c'iNiiiii  iH  iiroiHiiinut'il. 

nnr/on,  Ailm'r.  v.  nnrnx,  '2  U.  A  ('.,  ■"M!!, 

4th  K.  8.,  c.  OS,  N.  IH - 

(diiiiiirul  |»roviHi(iiiM  iw  U>  iv|)|hmiIh  finiii  tlm 
ili'i'iHiniiH  of  tlir  .liiil)^)!  ill  Kc|iiily) 

Hi/it,  tlint  iiiiilcr  <!.  Ori,  M.  7H,  nil  (irdor  for 
t.lio  hciiii'iii^  of  an  appriil  from  thu  ilnuiHJoii  of 
Ifui  .Iii(lf{(!  in  K(|iiit,y  in  viicalion  iwvt]  not  liii 
;{ivc'n  liy  llm  Coiiil.  in  liaiiro,  Imt.  may  lit!  Hi^^iii'il 
Jiv  llu!  .Iiiilf^tm  inilivifliiajjy,  and  llii' appeal  may 
lir  lirani  liy  (lie  Hiinir  i|iioniiii  that,  woiilil  In: 
!'('i|iiii'<'il  for  till:  ri't^iilar  trrin  of  the  Courl. 
\V,  &  A.  Railway  Co.  v.    /K.  (J.  llaihmu/  Co., 

•,l  K.  &(J.,  Wi. 

4thR.  SMCOO.N.ll- 
IDiHcovcTy  l>y  interrogalorieH)  — 
'i'lie  (,'ouit  will  order  a  defi^ndaiit  liorporat ion 
doiiiK   liiiHiiuwH   in    Nova  Seotia,   tlioiigli   ineor- 
porale<l  aliroad,  t,o  aiiMwer  iiilerrojjaloriea  under 
III  is  Heeli<i!i. 
JIart  et,  al.  v.  iVculem  Union  Tdrum/ih  Co. , 

*2K.  kCM't. 

4th  K.  S.,  <-.  )MI,  H.  1.1  Cr.  fith  K.  S.,  c.  104, 
O.  XXX VI.,  R.  18 

'' IfjuiH  inoUitnH  fiiiindid  ujion  (ifflihiiiils,  it 
xliitll  he  limful  for  lilhir  juirti/,  wilJi  Icnui'.  of 
Ihr.  Court  or  n  Jwlijc,  tn  mukc  offlibtvits  in 
onswrr  to  the.  offlilnvitu  of  th<;  ojijioxitc.  porlij 
njinn  onij  non  iiuittrr  nriKinf/  out  of  surh  iiffl,- 
(Inm'ln,  Huhjrrt  In  oil  unrh  rules  an  maij  here- 
after he  made  renperMmj  nuch  aJtldaoils." 

I'rr  Siiiilh,  il. — 

The  Court  liaH  very  properly,  as  I  apprehend, 
rarely  permitted  Hueh  allidavitH  to  lie  produced, 
and  the  few  ca«eH  in  wliioli  tluiy  have  done  ho 
have  lieen  most  exceptional,  and  as  having  lieeli 
rendered  ncce.Hiiry  in  order  to  jirevent  tint 
grossest  injiiHtici.,  or  to  vindicate  the  standing 
of  memhers  of  the  liar.  To  adopt  a  different 
practice  would  clearly  open  a  door  to  an  undis- 
ciplined manner  of  conducting  arguinents,  and 
produce  inextricable  confusion. 

O'AfiUliu  V.  McDonald,  '.i  R.  &  C,  2fJl. 

4th  B.  8.,  C.  06,  8.  30-Cr.  5tb  R.  8.,C.  107, 

8.5- 

"All  nffidanlH/or  the  purfmse  of  holding  per- 
sow  to  hail  in  thin  Province,  or  harimj  relation  to 
any  jwlicial  jiroceedimf  in  any  Courl  of  Justice 
therein,  purporting  to  be  7Hade  be/ore  a  Commis- 


xiowr  ap/minlid  III  do  act'*  leilhoitl  Ihi  I'mnini , 
or  a  Judgi ,  i.lc,,  ,  ,  .  thiill  haii  Ihi  iidih 
iffirl  at  if  maili  liifori  a  Judiji  i>r  ollur  lawful 
aiilhorily  in  thin  I'rorincf. ;  provided  Ihi  mw 
purport  lo  he  malid  irilh  Ihr  iial  of  nuch  ('om- 
miiiiomr,"  etc. 

I'rr   McDonald,  C.  .1. - 

Section  r>;{,  chapter  04,  Revised  StatiilcH, 
appears  to  lie  limited  toallidavils  of  a  |iarliriiliir 
charauter  tlieruiii  N))eciHed,  namely,  atlidavils  of 
service  of  writ  or  noliiie,  or  any  other  altidavil 
for  th(!  purpose  of  eiialiling  the  Court  or  a.ludgi' 
to  direct  proccicdings  to  he  taken  against  de 
f(!!idants  out  of  the  Province,  or  liy  such  defend 
ants,  and  does  not  iiiidiide,  as  I  iinderstaiid  il, 
such  an  allidavit  as  that  wii  are  now  eonsideiing  ; 
Imt  in  my  opinion  the  atlidavits  referred  In  in 
this  section  must  also  Ihi  nutluMiticated  liy  tliescil 
of  the  Commissioner.  .Section  Tift  of  the  (Niuiity 
Court  Act  of  I HHO,  enacts  that '  'all  affidaciu  lit  In. 
nsed  in  the  County  Court  or  hefiire  a  Jwlge  Ihirinf, 
may  he  Kivom  before  a  Jmlije,  etc.,  .  .  and, 
leheii  xueh  afftdavilH  are  made  hy  partien  nvdimi 
leilhimt  Ihi  I'rovinre,  Ihi  y  nhall  he  nwitrn  ai  pro- 
villi d  in  sictlim  /i.l,  chaplir  t)//,  ItevinedSlahili  ■<," 
Now  section  .'i.'J, chajiter  <(4,  reipiiroH  all  aflidavilH, 
therein  referred  tfi,  to  lie  sworn  licforo  "a  Com- 
missioner apiKiinted  to  take  adidaviis  and  <l<i 
acts  without  the  Province."  Section  .'i?  of 
clinpter  9(i,  authori/.es  the  apiiointment  of  Coin 
missioners  to  do  acts  and  take  atlidavils  without 
the  Province,  and  section  .'Ml  of  th(!  same  chapter 
reijuires  all  atlidavils  sworn  liefore  such  ('oiii 
missioiier  to  be  certilieil  by  tlio  seal  of  the 
(!omniissioiier. 

JIilil,  that  an  allidavit,  to  set  aside  picas  in  an 
action  in  the  (lounty  ('ourt,  sworn  without  the 
Province  before  a  CommissioiKir  appointed  tn 
take  allidavitH  tti  lie  uscmI  within  the  Province, 
luit  authenticated  by  the  seal  of  such  Commis- 
sioncr  could  not  In;  reail. 

Levin  ct  al.  v.  liriand,  5  R.  &  (!.,  'JO.S. 

4th  K.  8.,  c.  06,  H.  31  -  €r.  5th  K.  8.,  c. 

107,  H.  6- 

"  J'Jnery  regi-iler  of  or  declaration  made  in 
respect  of  any  lirilish  xhip,  in  pursuance  of  any 
of  the  Ac.Ih  riJaling  to  the  registry  of  Itriliih 
ships,  may  he  jtrovcd  in  any  Court  ofjmlicr,  or 
he  fore  any  person,  having,  by  lam  or  by  consent  of 
parlies,  authority  to  hear,  revive  and  examiw 
evidence,  either  by  the  irroilnction  of  the  original 
or  by  an  examined  copy  thereof,  or  hy  a  co/y 
thereof  purporting  to  he  certified  under  the  hand 
of  the  ]>e.rsom  haviruj  the  charge  of  the  original 

.  ,  .  and  every  register  or  copy  of  regiskr 
and  also  every  certificate  of  registry  granted  nnihr 
any  of  the  Acta  relating  to  the  registry  of  liritith 


151.') 


STATIJTKS,  NOVA  SCOTIA. 


ir>l4 


vfAnf/n,  nnd  imrfHtrlimj  In  !»•  xii/niil  an  ritfuirid  hy 
lnii\  nhiill  lir  riri irril.  in  i  riih  iirr  in  mil/  Ciiiirf  of 
Jmlii'r,  or  lii/orr  iiiiif  jiirnoii  hnriinj  lnj  hiir  or 
ronnnil  of  /inrliin,  nnlhnrihi  In  hmr,  rn'iii'i'  nnil 
frnminf  iriihiin  ,  as  iirisiiiii/iiin  iiroiif  of  all  ihi 
mnllrrn  ronlniiiiil.  or  ririlnl  lit  siirh  ni/lKlir," 

Ifi/il,  lliiit  tU>:  oa'tilii'iilit  of  ri'^'lHliy  iif  a 
llritiHh   Hliip  iniiHt,  im  rcrcivnil  hh  /iriinii  fwii , 

or  IIH    tlUH  Mlllllll)!    (•X|ll'(!HNI'H    il,    HH    |ll'l'HIIIII|ll  i V(^ 

pr'Hif  of  lill  lliu  inalUtrH  contitinml  or  nii:it)Ml  in 
Hiii;!)  rc^ixtrr. 

Smilh  V.  Fulloii  il  at.,  2  II.  ,V  ('.,  '-*-'.'".. 

4th  K.  Hm  c.  (NI,  h.  »»     €r.  Slh  K.  H.,  ('. 

107,  H.  8 

"A  c i>!i  ofiuiij  i/rinit  fnnn  thv  <'rini<n,  or  of 
mill  dii'd  from  lln'  hoo/is  of  rrijintrii,  nrtijlnt 
initli'.r  till'  Imnil  of  Uir,  /{ri/intrnr,  or  jirounl  in 
hi:  a  Irnr  ropijtukrn  thrrifroin,  shull  hr  rrnirril 
rt,w  v.mlenrv.  in  thv,  nhHvnri>.  of  thv.  oriijiiuil,  if  il 
shall  he  made  to  rippmr  to  the  Court,  h>j  nffldu- 
»ii'(,  that  Kurh  oriijinal  in  not  in  thv  ponsi  union 
or  nndrr  the,  ronlrol  nf  thv  part;/,  anil  that  hr 
hiiH  ini/nircd  for  nnd  hr.r.n  nnalili',  to  prorure 
Ihr.  Kama." 

Whom  a  (inrtiHod  <iopy  of  a  (loud  waH  oflTonMl 
ill  nvifhiiioouniltT  lliiHH(!(;lioii  witlioiH  aniitliiliivil 
llial  tlu!  ori^'iiial  was  not  in  tln^  iioHHCN.sioii,  fii\, 
of  tli<!  IMvrty,  lull  (lie  ilrfcMilant  who  ofl'clM'd  I  hi! 
impy,  waH  I'xiiinincil  hh  a  witness  at  Ihr  trial, 
ami  provi!)!  that  tins  orij^inal  wan  not  in  his  {xm- 

Ilild,  that  thn  ccrlifnnl  copy  wan  midiciciit. 
McKnrJi.  v.  I.nmoni,  'J  K.  k  ('.,  .117. 

//(7f<,  that  cortidoil  copit*  of  iiiort^jiij^cH  wvxi: 
improperly  received  in  evidoiici!,  when;  no  alii- 
davit  had  lieeii  inado,  as  iinch  copies  can  only  he 
received  "  in  the  al)Hencc  of  llie  original." 

In  re  llalf.ly,  ti  K,  A  (1.,  .'{"."i. 

4th  R.  S.,  e.  00,  R.  35  -.'ith  K.  8.,  c.  107, 

H.   10    - 

Per  McDnnahl,  •!.-  It  in  projxT  to  road  tlial 
chapter  (iarofiilly  to  ascertain  the  intention  of 
the  Ltigislatnro  in  inserting  the  Hection.  'i'he 
Keneral  words  of  a  .Statiiti!  are  iu)t  to  Ik;  con- 
Rtriicd  so  as  to  alter  tlie  previfins  policy  of  the 
law  unless  no  Hensc  or  meaning  can  he  pnt  upon 
those  words  coiiHisteiitly  with  the  iiitiuition  of 
proserving  the  existing  policy  iintouuhod.  In 
the  chapter  referred  to  the  liCgislatiiro  was  ex- 
ceedingly explicit  when  it  intended  to  dispense 
with  proof  nf  seals,  signatures,  and  the  official 
or  judicial  character  of  parties  authenticating 
copies  of  documents  to  be  received  in  evidence. 
Section  27  provides  that  proclaniatiors,  treaties, 
judgmonts,  decrc-cs,  orders,  judicial  pruccudings. 


legal  docnini'iils,  etc.,  of  any  for<'it;ii  Slate  or 
any  Itrilish  Colony,  etc,  etc.,  iniiy  he  proved 
liy  examined  lopit'M,  aiithenlicaled  as  llicrciii 
afti-r  inetitiiiiH'il.  The  Hection  then  provides 
that  the  aillhi'lltical  ion,  to  lie  rvideni'i',  shall 
purport  to  lie  signed,  etc.  "  |(ut  if  any  of  the 
aforesaid  authenticated  copies  shall  purport  to 
lie  Healed  or  Higiu'd  iis  liereinliefoii'  rexpectively 
direi-ted,  the  Hamc  shall  lie  rcMpeclively  ad 
iiiitted  in  evidence  in  every  case  in  which  the 
original  document  could  have  liecii  received  in 
evideni'c,  without  any  proof  of  thi'  si«il  where  a 
seal  is  necesHary,  or  of  the  Hignalure,  or  of  the 
truth  of  the  stateniciit  attached  thereto  where 
such  signature  or  staliMnent  is  micessary,  or  of 
the  judicial  I'harai'tcr  of  the  persoii  appearing  to 
have  mail)!  hui'Ii  Nigliatllic  and  Htalemeilt." 
Section  *JH  provides  that  documents  which  are 
aduiissilile  as  eviditnce  in  Kngland  or  Wales,  or 
Ircdaiiil,  without  proof  of  IIk!  seal  or  Htamp  or 
signature  aMthciiticaliiig  the  same,  or  of  the  ju- 
dicial or  ollicial  character  of  the  person  appear- 
ing to  have  sigiKid  the  saiius  shall  lie  adiiiissilile 
h«!r(!,  "  without  proof  (and  1  here  (|Uoli!  the 
words  of  the  .Statute),  "of  the  seal  or  slainp  or 
signature  authenticating  thi^  same,  or  of  the 
judi<Mal  or  ollicial  chara<'tcr  of  the  perHon  ap 
pcaring  to  have  signed  ihi!  same."  .Section  .'1(1 
pi'ovides  for  the  ailiulMsiliilily  of  aflidavils  for 
I  he  pui'posi!  of  lioldiu;^  pcrsouH  to  liail  in  this 
I'roviiict!,  etc.,  |iui|i(irliug  to  lie  made  licfori! 
('onimissioneni  outNidc  the  I'loviricc.  It  also 
makes  ihi:  sc^veral  oilier  documeiits  tlit^rcin 
meiitioiuid  evidence  here,  liiit  the  language  used 
is  cxceiMlingly  r.\i:i\.r  w  licre  it  is  intended  to  dis- 
pense with  till!  rei|uii'cmentM  of  the  common 
law.  These  sections  which  dispense  with  proof 
of  handwriting  ref(!r  solely  to  matters  fif  cvi- 
dcn<!i!  autheriticaled  outsiile  thi!  rrovino!.  In 
ss.  '«»,  .•{•-',  :$:»,  ."M,  .'ttl  and  ."17  of  c.  !)(i,  providing 
for  till!  admissiliility  in  (ividence  of  documents 
within  the  I'rovince,  not  oik!  word  is  said  to  in- 
dii.'ate  that  the  Legislature  intcniled  to  ilispcnsc 
with  the  necessity  of  proof  of  handwriting  of 
the  ollicial. 

Honld  v.  A/illrnjor,  I  K.  &.  (i.,  .TIO. 

4th  R.  a.,  c.  00,  n.  41     Sth  R.  H.,  c.  107, 

H.    16- 

.  .  .  "  I'roridid  thai  on  Ihr.  trial  of  nnij 
inimr.  joiwd  or  of  any  mnllrr  .  .  nrimnj  in 
any  nnil,  adinn  or  olhrr  pnifridinij  in  n.vy  Court 
of  Jtisliee,  or  hefore.  any  pirnon  hnrinij,  hy  law  or 
liy  ronmiil  of  pnrlii's,  (lulhorily  to  hear,  ruceivp.  and 
rxnminf.  fridenrr  hrovijhl  liy  or  mjainxt  Ihf.  cxmu- 
lor  or  adminislralor  of  n  rlrrfasril  jwrson,  il  nhall 
not  hii  r.omprlint  lunnflir  for  any  other  of  the, 
partitH  to  Huch  action,  or  the,  tidfo  of  any  such 


l.'ilA 


STATUTES,  NOVA   SCOTIA. 


U)l(} 


imrly  lit  ijin  n-'ih  ini  on  In  hill/ nf  Minh  ixnhj  o/ j  (Uifi'lliliilll'H  liinl  pliuui  nf  iiliorli',  iih  |p|(.\  i.lcil  liy 
liny  ilriilintin,  Iriiniiiiiioiii  or  iiijrinio  uli  irl/h  lln  Hfitimi  '_',  iin  scivin'.  Siiiii  i'nni|iliiiiiri'  wiili  ilir 
ilieinsiil,  nr  of  niiy  Hliitn)inil»  or  iirkiii'irliih/  i«i|uiii'im'nlH  of  lliu  StiitultMH  lu'ONMiiiy  lnuivi' 
miHli   miiili    or  irorih   ^imki  ii   /ii/ /i/m  nc  i;/' f(»i/ ,  tln'  Coiirl  jmimlii'lioii.     Si'i'timi  'Jtl  imd  «iiliMti. 


roiiririnlloiii   irltli  him  ;  /irorlilnl  thni  iiiiij  -inh 
IKirly  or  hi*  irij'i  thnlUn  cnniinliiil  lunl  coinjii  lln 
hir,  lo  !firr.  iriiliiii'i  on  Inhitif  of  itiiy  iiirh  i .n  nilor 
or  iiilwiiiitlriilor." 

I/ihly  lliiil  the  iigolil  iif  II  l-iff  IliMUIUlicu  ( '<>. 
wiiH  not  coniiMituiil  to  givu  I'viiloiifc  on  liiluilf 
of  Hucli  (■oin|niiiy,  of  any  Ktiifcini'iilH  or  luknow- 
li'il^iiK'ntH  of  tliu  ili'iii'iiHcil  iiihUii'il,  ill  an  action 
Ity  liiM  vxi'iMilor  or  ailiiiiniHtrator  a^^aiiiNt  hucIi 
('oinpaiiy. 

WilliillH,  .),,  ilitsi  iilliifl. 
O'Oonuill  V.  L'oiifiili  riilioii  l.ifi  I  in.  Co., 

•1  It,  .V  C,  TiTO. 

Oil  njijiiiil  to  Ihi  Siijin  nil  ('oini  of  ('aiiiulii, 

III  III,  rtivt'iMing  liu!  jiiilginont  of  llu.'  Court 
liulow,  that  tlio  cvidonou  whh  not  inadniiMKilplc 
iiniltT  tlu^  Statnto  in  (|iu'Htion,  anil  slioiilil  not 
liiivc  Irt'i'ii  uitlilii'lil  from  tin;  jury. 

Thi',  Coiifi'ilinilioii  l/ifi  All.  of  Camilla  v. 
O'/iohiiill,  11/ h  Filiriinri/,  IS7f>, 

CivH.  |)ii<i)st, 'JIW. 

Ifrlil,  that  tliiH  prnviMo  appliuH  to  uvidunco 
tcnilcrcd  ill  oanscH  wlicrt!  the  cxri'iitorH  or  ail- 
iiiiniHtratorn  iiavc  licooino  partii'.s  liy  HiigjiCHtion, 
after  till)  (Iciith  of  tlits  original  party  ;  the  word 
"  Itrotight  "  in  «aiil  |)rovino1ifinj,'conMtriit'il  with 
till!  woril  "evidciiL'u "  iiiiiiu'iliatt'Iy  ini'i'nling, 
and  not  witli  tlin  words  "action  or  olju'r  pro- 
ceeding."    Wilkiiis,  .1,,  ilixsi  iilliiii, 

Chisliij  V.  M unlock  1 1  al.,  •-'  U.  it  C,  :V2\. 

Atliriiied  oil  appeal  to  tlic  .Supreme  Court   of 

Canada, 

•_>.S.  V.  R.,  AH. 


Su-  EXECITOKS  AND  AUMIM8TKAT0R8, 

13,  14,  &  15. 

4thK.  8.,  c.  07- 

Cliapter  97   "f   the  Revised  .Statutes  makes 
provision  in  cilmcs  of  alisent  or  altseonding  deht 


i|Uciil  HcclioiiM  of  liiat  diapli'i'  apply  lo  ii 
dill'ci'cnt  cliiHH  of  dclitoi'M,  nami'ly,  fnrclgii  com 
paiiicH  or  (.'orporiilioiiH  doing  liiiHincHK  liy  an  agent 
within  the  Province,  and  il  is  provided  tliiil 
service  of  process  to  appear  on  the  agent  shull 
give  the  Court  jut  isdi<I  ion  in  the  ease,  Iml  Ihcie 
is  no  provision  in  these  cases  llnil  the  attaching 
of  the  defendant's  property  shall  give  jurisdielioii 
as  is  provided  hy  section  '-'1  in  lint  cas4'  of  im 
alisent  or  ahsconding  delitor.  'i'lii'  writ  nf 
iitlachmeiil  here  is  not  proeess  lo  appear  al  nil. 
Sect  ion  -H  holds  the  agent  liahle  to  pay  tlic 
claim  mil  of  the  assets  of  the  company  or  cor 
lioialion  it'  jllilgliieiil  he  agailisl  llielil,  ami 
section  ,'to  provides  that  if  the  plaintill'  desiic 
security  previous  to  judgment  he  may  inakeoalli 
lolhecausi!  of  action  and  proceed  liy  allachliicnl 
against  Ihe  estate  of  the  defendant,  which  esliilc 
shall  then  he  availalile  to  icspoml  the  jiidgineiil. 
It  is  mil  necessary  that  the  allidavil  or  the  writ 
of  allachment  should  allege  ihal  the  dcfendanlH 
are  aliseiil  or  ahseonding,  and  the  law  provides 
ihe  inaiiiu'r  of  service  of  the  writ  of  Kiiiiimoiis. 
.1  Imoii  rl  ul,  V,  Cok  lliirhor  Laml  Co, , 

I  R.  .1  C.,  ;t!t(). 

4th  U.  S.,  c.  02,  8.  .1  IT.  .Ith  K.  8..  c.  101, 
O.  XLVI.,  R.  4- 

"  IVIiin  ijiiiiih  iirv  vxhihilrd  to  the  Shm'ff  im 
thi'  iiriijiirti)  lit'  thr  itlmi'iil  or  iihuroinlinii  ililitur, 
thill  ulinU  he  vithml  hy  two  sworn  u}ij>riii.iirs, 
ami  Hiiiin  an  appraisrmi'nt  hoiwj  miuli'  nmhr 
thiir  hnnil.1,  the  Sheriff  nhiiU  levy  npoii  mu-h 
jiiirt  of  the  floods  a.'i  nhall  he  .iinUeieiit  to  re- 
Sjioml  the  niim  unborn  In,  and  ]irubalile  cimtH  k.s 
ithore ;  hilt  the  defendant'n  proiierlii  hIuiH  nut 
he  lionnd  by  the  attachment  vntil  a  levy  ix 
made." 

Levy  nniler  the  attacliinont  undfir  this  chapter 
may  he  made  hefore  service  on  the  agent,  anil  is 
efTectual  from  the  time  of  seizure  of  the  property 
and  not  merely  after  appraisement  and  seleelinii 
of    the    pniperty    to   he    held   to   rcspr)nd  the 


ors,  section  2  reipiiriiig  that  the  allidavil,  which    judgineiit. 

must  ho  made  hefore  the  is-suing  of  the  sumnions,  j      Sec.  5  has  heeii  changed   in  Order    XliVI., 

shall  state  that  the  defendant  is  ahsent  or  ah-  [  R.  4  of  nth  R.  .S.,  c.  104,  to  express  more  ii|illy 

aconding  from  the  Province,  and  section  '-'4  pro-  I  the  meaning  put  upon  the  former  section  in  this 

viding  that  the  plaiiitilT  shall  not  proceed  in  the  i  case. 

trial  against  any  ahsent  or  ahseonding   debtor  j      The  words  now  are  "the  Shorifr  shall  retaiii 

unless  his  real  estate  or  goods  shall  have  hecn  ,  such  part  of  the  goods,  etc."  instead  of  "llie 

attached,  or   until   the  ag^nt  or   trustee  siiall  ;  Sheriff   shall    levy    upon    such    part     of    liie 

have  admitted  that  he  has  goods  of  the  ahsent  |  goods,  etc." 

debtor  in  his  possession  or  under  his  control.  The  Merchants   Hunk  v.  The,  Slid  Co.  oj 

A  copy  of  the  summons  is  to  be  left  at  the  |  Canada  (Limiltd),  5  K.  &G.,'258. 


ini? 


STATUTKH,  NOVA  SCOTIA. 


151H 


nil  H.  N.,e.  «I.  ".  IH    ('f..Hli  K.  S.,*".  l«l»       '''''I'  i'"^'  ""•  "«'"•'•  "'  '•'«'' '"'"'  '■'"'""•  '■"'■ 
O.  XLVI.,  R.  l.'i  i  led  wiiitiN,  iiiii  IIdwIiik  in  tUlliu'il  DlmiinulH,  In 

"A'o  ^:,mm«i,^  chilli  -\.».    »//  uiiirus,  „,,ul„^l  ''"i""*   "'"1    pHMipiliilr    lliHli    oil    tlic   laii.l    of 

<in  „l..n,l  uriil,,r„„<li„>iil>l.li,rl,>l,n„uiniin  r/,/,  »/  uiiollirr  jiiopiirtor  I.iIom.     A  Kmiil  lim)  In'  pir 

..,•  Ini^hr,  HHlil  Ihr  i>lni„/ljr  or  his  n,in,l  slin/l  Hiinic.l  wlini  lliinlmH  Imtii  iloiii.  iih  of  ii«lil  for 

imdr  ,1,1  njll,ln,l'  o/'/i/h  l„li,/lh,il  H,<  i„  ,'^,m  i„„  twriily  yciirs,  ini.l  tliU  iiol«  illiMaii.llnK  IHi  K«'V. 

I»is,il  /,)  hi    fill  III  1111,111  il  is  Ihr  ilijiii/  or  Inis/ii  nf  •'^IhIh,,  ciip.   HN»,  hcc.  '.M. 
III!    ili/i  iidnnt,  or  hath  ijooils  or  rnilils  n/  snrh 


Jfitrristiii  V,  //iirrisnii,  I  K.  iV  (I.,  .'I.'JS. 


ill  I'l  mill  11/  in  his  jiossi  ssidu  or  iiinl,  r  his  roiilrol." 

A    mcciiid    MUiiiiiioiis  (MM    Inniio    oil    tho    hhiiu'  '      4(|l  Ki  N.,  C.  lOII       (Of  thO  Hole  Of  liAlldH 
utiidiivit.  j  uiuliT  ton cKiHure  of  iiiortKiitfi))    Cf.  r)lli  R,  H., 

Hulij'ax  liankiiiij  (.'a.  v.  Wurrull,  g    j23 

-.11.  vt(i.,7(l.     '  .s'"  MOKTUAUK,  «7. 


till  It.  H.,  c.  »t,  N.  '.Ml  ( r.  Ttlh  l{.  S.,  c. 
104,0.  XLVII.,  R.  1- 

"  Si  rrli;  oi.  III,  it,i,iit  of  /iron  ss  to  n/ijunr" 
mi'iuiH  M«'i'vii.'ti  on  till'  i'oiiipiiiiy'.-i  iij^t'iil  of  pioccKH 
i'<'i|uiiiiih'  III!'  coiiipiiiiy  toiippcir, 

III  lliu  corrcHpuiiiliii^  HOL'tioii  in  otli  It.  S,,  c, 
lilt,  ().  .\I.VII.,  U.  I,  tim  woi'iIm  iii'u  cliiuigt'il 
|o  I  In:  following':  "  Hoivico  on  llin  iiyrnt  of  llic 
will  of  MiiinnionN  liy  wliicli  llii>  aulion  Ih  uoin- 
iiuiiic'i'd." 

Miirhaiils   lUiiil;  V.    T\\i  Sli,l  Ciim/inin/  of 
Cniiwln  ( lAmiUil),  .'.  K.  .t  ( ;  ,  LViS. 

4Ui  K.  N.,  f.  1)0,  8.  3    Cr.  5(li  K.  N.,  c  117, 

( /fii),i,i<  I'liri'iis  niiiy  \n)  j,'i'anlt'il  liy  .Snpit'inc 
Court  or  II  iliid^'c  tlicii'of,  wlio  may  givo  rulf  or 
onlur  iiiHtciul  of  writ) — ■ 

//(/(/,  I  hut  111!  iippoiil  from  suoli  iiii  onlcr  iIocm 

not  Ho. 

In  r,  A.  L.  AfrK,n:lr,  •_>  U  ^t  (I.,  4S|. 

4tli  K.  8.,  c.  lUU,  N.  13 -cr.  5Ui  R.  8.,  C 

112,  8.  12  - 

"  IIVh'H  the  vMitli'  (,r  iiif,r<'Kt  cliiim,il  nhiill 
h,nic  hi'i'H  an  rutut,'  or  intttrsl  in  rcrcrsinn  or 
rmiuindfr,  or  i,th,-r  fnlnrn  ixtiili'  or  intcrtnl, 
mill  no  ]iir.ion  nhull  h,iri'  ohtiiiiu'd  the  jmnsrs- 
s/o*;  of  th,'  rcri-ijit  oj'thf  projits  of  niii'h  I, mil.  or 
tl,r  nri'ijil  of  such  riiiL  in  ri'sii,;'t  of  su,'h  i-sliit,- 
or  intfrcst,  then  unch  riiiM  shall  be  (ko.nwd  to 
have  Jimt  accrued  at  the  time  at  tohich  awh 
(■stale  or  interest  became  an  estate  and  interest 
in  possession." 

Untlor  this  Hcution  posHuasion  docs  not  liugin 
to  run  until  tlio  piiitioa  iiro  in  a  position  to  make 
an  entry  upon  the  land. 

Kearney  e.f  ul.  v.  Kearney,  1  R.  &  C,  4'28. 

4tli  R.  8.,  c.  100,  s.  '28  -  cr.  5tli  R.  8.,  C. 

112,  8.  27- 

(('erlaiii  ulaiins  not  defeated  liy  showing  only 
that  the  enjoyment  began  more  than  twenty- 
one  years  previous) — 


llllR.  S.,  C.  tOI,H.  I'i- 

" //■  //(<  ,1,/,  i,,lii„l,  by  iiiilii'i  w(  irrtlinii  de- 
linn  ,1  lo  th,  ShirijI'  III  basi  I,  n  days  prii'ionsly 
In  Ihe  s,tli,ri,ii,iri  ihiil  ,,rlnin  /,orlions  of  Ih, 
lauil  so  ad,;rlis,,l  be  first  s,tld,  lit,  •Sh,  riji'  shall 
ransi  the  sami  lo  b,  first  /ml  hi,  fur  sale,  and  if' a 
siijlieient  snvi  shall!,,  rializnl  therefrom  lo  satisfy 
Ih,  ,  X,  r,illi,ii,  iiilirisl  awl  ,xi„ns,s,  no  oilier  part 
of  s,i<h  Ian, Is  shall  b,'  s,ild  ;  olhi  ririsi  he  shall 
liroi,,il  ,eilh  Ih,  sal,  oflh,  r,  mninder." 

Although  tiiiH  section  doea  not  extend  to  tlio 
ease  of  mortgagor  and  mortgagee,  yet  if  equity 
to  IV  eestiii  (jne  Irnst  rciiuiru  it,  ewpeeially  if  the 
mortgiigee  lie  not  prejudieed  thereby,  the 
.Supreme  Court  posnenHeM  the  power  and  would 
esereiKe  it  to  dispo.se  of  Hiieli  portioiiH  of  the 
mortgaged  properly  iih  would  leant  injure  an 
estate  and  yet  eomplelely  extinguiNli  the  delit 
Heoured  thereon  by  mortgage. 

Miir'loeh  V    Itilloni  et  ul.,  Il  N.  S.  1).,  n.'l'J. 

4iii  R.  8.,  c.  103 -cr.  r>tii  r.  s.,  c.  I'io- 

(Koreible  entry  and  detainer)  — 

Where  a  defendant  broke  open  the  door  of  a 
burn  without  any  cireum.stance.s  of  terror  or 
violence,  and  in  the  bona  fide  asuertion  of  an 
iilh'gi'il  right  to  the  possession  under  a  lease  from 
the  pliiintifT,  and  defendant  was  arrested  under 
a  warrant  issued  undei'  this  chapter, 

//(/(/,  tiiat  the  .Stat iitii  was  not  applicable  to 
such  a  case. 

Bertram  v.  Jionhum,  ',i  R.  &,  V,,  600. 

4tli  R.  8.,  c.  107, 88. 1  and  2-cr.  .Ith  R.  8., 

c.  125,  88.  3  and  5— 

8.  1.  (ioods  distrained  to  be  appraised  and 
sold  within  live  days  after  notice  if  not  replevied. 

.S.  2.  (Joods  to  be  sold,  and,  after  rent  paid, 
surplus  to  remain  for  owner. 

See  LANDLORD  AND  TENANT,  S. 

4th  R.  8.,  c.  107,  8.  7    cr.  Sth  R.  S.,  c.  1'2S, 

a.  14— 

((loods  not  liable  to  Ih!  removed  under  exe- 


1519 


STATUTES.  NOVA  SCOTIA. 


1520 


cution  till  rent  paid,  but  not  to  exceed  one  year's 
amount  of  rent)  — 

Ildd,  not  to  apply  to  goods  taken  under 
attaclnncnt  under  the  AbHconding  Debtors'  Act. 

Hut  .SIC,  5lli  U.  8.,  c.  I'J"),  H.  14,  where  the 
words  "any  attauliuient "  are  inserted  before 
"execution." 

Milkr  V.  Liwj,  4  R.  &  tJ.,  135. 


4th  R.  S.,  c.  109,  8.  22  — Cr.  5th  R.  8.,  C. 

115,  s.  22— 

"  Where  a  submission  has  been  made  n  rule 
of  the  /Supreme  Court,  the  Court  may  enforce 
obedienrc  to  any  award  duly  made  under  such 
submission  by  directing  a  jud<jment  to  be  en- 
tered or  execution  to  isstie  for  the  amount 
thereof  with  costs,  or  otherwise  to  carry  into 
effect  such  award." 

The  power  conferred  on  the  Court  by  this 
section  to  enforce  obedience  to  an  award  made 
under  a  voluntary  submission  cannot  be  exer- 
cised by  a  Judge  at  Chambers. 

Sir  W.  Young,  C.  J.,  dinstntimj. 

Collie  V.  Moren,  1  R.  &  C,  427. 

Held,  that  under  this  section  the  Judge  in 
Equity  was  warranted  in  ordering  that  in  case 
a  party  to  tlie  submission  should  refuse  to  exe- 
cute a  deed  reijuired  to  eflfectuate  a  sale  directed 
by  the  arbitrators  to  be  made,  the  same  should 
be  made  by  a  Master  of  the  Court . 

In  re  Frastr  d-  Paint,  R.  E.  D.,  68  ; 
3  R.  &  C,  10. 


4th  R.  S.,  C.  111.  8.  13  -cr.  5th  R.  S.,  C. 

101,  s.  25— 

"  Where  a  Justice  shall  refuse  to  do  any  act 
relating  to  the  duties  of  his  office,  the  party 
requiring  sxich  act  to  be  done  may  apply  to  the 
Supreme  Court,  upon  affidavit  of  the  facts,  for 
a  ride  calling  upon  the  Justice,  and  also  upon 
the  party,  to  be  affected  by  such  act,  to  shoio 
cause  xohysuch  act  should  not  be  done;  and  if, 
after  service  of  such  rule,  good  cause  be  not 
shown  against  it,  the  Court  may  make  the  rule 
absolute,  with  or  without  costs,  as  they  may  see 
meet,  and  the  Justice,  upon  being  served  with 
the  rule  absolute,  shall  obey  the  same,  atid  do 
the  act  required.  No  action  or  proceeding 
shall  be  commenced  or  prosecuted  against  such 
Jxistice  for  having  obeyed  such  rule." 

Rule  applied  for  under  4th  R,  S.,  c.  112,  sec. 
13,  to  compel  a  Stipendiary  Magistrate  to  make 
an  order  for  the  commitment  of  defendant  under 
Dominion  Act  of  1869,  c.  20,  sec.  25,  for  not 
providing  necessary  food,  etc.,  for  his  wife,  re- 
fused on  the  ground  that  the  Justice  in  declin- 


ing to  make  the  order,  had  exorcised  a  judicial 
discretion. 

Queen  v.  Shorlin,  1  R.  &  Ci.,  70. 

4th  R.  8.,  Appendix,  p.  109,  8. 12- 

"Any  person  being  on  any  street,  die,  ip/io 
atiall  use  abusive  or  provoking  language,  may 
be  forthwith  arrested  by  any  constable," 

Held,  that  if  a  superior  otliccr  had  authority 
to  arrest,  under  this  section,  it  was  the  duty  of 
an  inferior  ollicer  lo  obey,  and  if  resistance  were 
offered,  bystanders  might  be  called  in  aid. 

Peppy  V.  Orono,  1  R.  &  C,  '.W. 


Rev.  8tats.,  5th  8erie8,  came  into  force 
April  23rd,  1886. 

5th  R.  8.,  c.  1,  8.  7  (O- 

•S'ee  4th  R.  8.,  C.  1,  8.  1. 

5th  R.  8.,  C.  4,  8.  67— 

Disfranchises  any  one  "  ivho  at  any  time  within 
fifteen  dayx  befm-e  the  day  of  election  was  an 
employee,  or  in  the  receipt  of  wages  or  emolument 
of  any  kind  as  such  employee  in  the  Post  Office, 
the  Cuxtom  //ouse,  the  Inland  Revenue  Depart- 
ment, Ike  fjighthoiine  Service,"  tfcc. 

Held,  that  a  sub-collector  of  Customs  was  an 
employee    of    the   Custom    House  within    the 
meaning  of  the  Act. 
Munro  v.  Elliott,  20  N.  S.  R.,  (8  R.  &  G.),  330. 

5th  R.  S.,  c.  4,  8.  95- 

(Penalty  for  voting  when  disqualified  by  5tli 
R.  S.,c.  67)— 
Munro  v.  Elliott,  20  N.  S.  R.,  (8  R.  &  G.),  330. 

5th  R.  8.,  C.  7- 

(Act  to  consolidate  the  Statutes  relating  to 
Mines  and  Minerals) — 

See  MINING  LAW  - 

4th  R.  8.,  c.  9. 

5th  R.  8.,  C.  7,  8.  39— 

"  All  applications  for  prospecting  licenses  shall 
accurately  define  by  metes  and  bounds  the  lauds 
applied  for,  and  shall  be  accompanied  by  a  pay- 
ment at  the  rate  of  fifty  cents  per  area  for  every 
area  up  to  ten  areas  in  extent,  and  of  tioenty-fivt 
cents  for  every  area  in  addition  to  that  extent." 

The  application  for  a  prospecting  license  over 
certain  mining  areas  defined  the  locus :  "Be- 
ginning at  a  stake  marked  W.  M.  L.,  standing 
about  one  mile  westerly  from  Malega  Lake,  in 
the  County  of  Queens."  At  the  time  the  appli- 
cation was  made,  there  was  no  stake  marked  as 
described  at  the  locality  indicated,  from  whicl) 


1521 


STATUTES,  NOVA  SCOTIA. 


1")22 


5thB.  8.,  C. 'itf,  8.  34- 

•S  '  4th  B.  S.,  c.  32,  s.  04. 


tlic  (lesuription  could  start,  hut  ii  stake  nmrkeil 
■IS  desci'iljed  wiis  put  down  soon  iiftecward. 

Iltld,  tliat  tlie  application  was  bad,  as  not 
accurately  derining  hy  metes  and  bounds  tiie 
liiiuls  a])plied  for,  within  the  meaning  of  the 
Mines  Act,  ")tli  R.  S.,  c.  7,  s.  3i). 

IW  McDonald.  J.-That  the  reference  in  the  :      gj^  K.  8.,  C.  35.  S8.  H,  9,  tO  and  48 


3thK.  8.,  C.  33- 


See  1st  R.  8.,  C.  SO. 


Statute  to  a  description  by  metes  and  lM)unds, 
refers  to  metes  and  bounds  existing  at  the  time 
(if  the  application. 

(Jiintn,  j)(:r  McDonald,  C.  J.— Whether  the 

stake    having    been    subsequently    placed,    the  | 

application,  in  the  absence  of  fraud,  was  value-  I 

less  as  between  the  applicant  and  the  t'vown. 

Jie  Mahija  Ikirvtiis,  ex  part t  MuLeoil, 

•20  N.  .S.  R.,  (8R.  &(;.),  44. 

5th  K.  8.,  c.  7,  s.  «5- 

S "  4th  R.  S.,  c.  9,  8.  67. 

5th  R.  8.,  c.  I,  s.  82- 

(Manner  and  conditicms  of  appeal  from  the 
Commissioner  of  Mines)  — 

Appeal  dismissed  where  the  affidavit  was 
made  in  Toronto  before  a  Notary  Public  for  the 
I'rovinee  of  Ontario. 

Jk  Uedlty,  20  N.  .S.  R.,  (8  R.  &  G.),  130. 

5th  R.  S.,  c.  (,  ss.  84  and  89- 

.*»t(  4th  R.  8.,  c.  9,  ss.  80,  &c. 


Sth  R.  8.,  c.  10- 

S^t<  4th  R.  8.,  c.  12. 

5thR.  8.,c.  19,s.  3- 

Ste  8TATl'TE8,  IMPERIAL, 


!  *'  4th  R.  8.,  c.  33,  S.S.  8.  9, 10  and  IS. 

5th  R.  8.,  C.  35,  s.  18- 

*V.  2nd  R.  8.,  C.  89,  8.  17. 

5th  R.  8.,  c.  35,  8.  20- 

Si'c  2nd  R.  8.,  c.  89,  8.  25. 

5th  R.  8.,  c.  35,  8.  23- 

.SVr  2nd  R.  8.,  c.  89,  s.  28. 

5th  R.  8.,  €.  37- 

Sef.  8TATITE8,  IMPERIAL, 

7  JL  8  Vict.  c.  101,  s.  3. 

5th  R.  8.,  c.  37,  8. 1- 

S'    4thR.  8.,  c.  35,8.  1. 

5thR.  8.,€.  42,s.4- 
*^  4thR.  8.,c.  40,  8.  4. 


3thB.  8.,  c.  42,  8.  8- 

(Dyke  rates  exceeding  one  dollar  and   fifty 
cents,  how  assessed) — 

The  Commissioner  of  a  dyke  made  a  rate 
24  Geo  2  f  44  s  S—  '•'"'"""''"n  ^^  '""'''^  •^1"''^''  ^^-'^  pei'  'wi'e,  without 
STATIITI-S  VnV4  «rnTI4*  '  '  ~  '^'^"'"g  *•>'=  P''°P"«t"''«  together  under  the  Su- 
H1A11J1I!.»,  >OIA  SjIOTIA,  tute,  oth  R.  S.,  c.  4-2,  s.  8. 

54  tieo.  3  (1814),  C.  15.        Held,  that  he  had  no  power  to  do  so. 

I      Quaere,  per  Ritchie,  .J.,  whether  the  Commis- 
5th  R.  S.,  C.  20,  8.  7 —  I  sioner  could  levy  an  assessment  for  costs. 

■Sec  4th  R.  8.,  C.  22,  S.  7.  :  -^«  re  Bishop  Dyke,  '20  N.  S.  R.,  (8  R.  &  «;.),  (i.'.. 

5th  R.  8.,  e.24-(Of  Practitioners  Of  Medl-      ,*•,  »  c;    „  •.,  ^  .,n 

cine  and  Surgery)-  j     ^"'  "*  '*"  *'  *^'  ^-  ''''" 

See  MEDICINE  AND   MEDIC  IL  (l^'"»%'e«  for  sods  or  soil  cut  off  lands  of  dyke 

:  l)roprietors)  — 
PRACTITI0NER8. ;     ^  jyi-y  ^.^^^  assessed  Ijy  the  Commissioner 

-,1,  H    o     -  .,,    „   .,.,  I  included,  beside  the  legitmiate  expenses,  three 

om  n.  ».,  C.  i\,  8.  il-  ,  3„„j^  .  (,j^  j^^,  ,,,,,„.,y^,y  ty  ,.^,^,1^  ^j  ^^^  ,^f  ^^^^ 

Sec  4th  R.  8.,  C.  28,  8.  22.    owners,  valued  Ijy  assessors  appointed  by  the 

owners,  instead  of  being  agreed  upon  or  valued 


•')th  R.  8.,  c.  29,  8.  43— 

See  8TATUTE8,  NOVA  SCOTIA, 

soviet.  (1873),  c.  17- 
2nd  R.  8.,  e.  00,  8. 10- 
4th  R.  8.,  c.  32- 
SCHOOL  LAW. 

m 


by  freeholders,  as  pointed  out  iu  section  20  of 
chapter  42,  R.  .S.  ;  (2),  costs  incurred  by  the 
Commissioner  in  bringing  an  unsuccessful  action 
for  dyke  rates  against  one  of  the  proprietors  ; 
(3),  conunissions  on  the  whole  sum,  includin" 
the  above  items. 
Held,  that  items  1  and  2  could  not  be  allowed, 


1523 


STATUTES.  NOVA  SCOTIA. 


1524 


and  tlmt  tlieir  disiilldwiince  in\'f)lve(l  a  ruiluctioii 
of  item  3;  tlmt,  therefore,  the  rate  must  be 
(|uaslieil  with  costs. 

/,(  n  nishoi,hijl:,.,-H)'ii.  ^.  R.,(s  It.  &(i.),2();i; 

SC.  L.  T.,  440. 

5lh  K.  S.,  C.  45,  s.  2- 

Vtt  Ist  R.  S.,  c.  02,  8.  2. 

iilh  K.  S.,  c.  4.1,  ss.  2  iiml  3— 

Stt  ST.iTlTES,  XOVA  StOTI.l, 

4  Will.  4  (1834),  c.  00,  s.l. 

3th  K.  S.,  c.  47,  s.  20- 

y    ST.iTlTES,  XOV.\  SCOTIA, 

!  iico.  4  (1820),  C.  2,  8.  30. 


5tli  K.  S.,  c.  37,  s.  .1  — 

(Controverteil  elections  of  Munieipal  aniri'MUM 
C'oinieilldi's) — 

Same  as  Acta  1881,  c.  1,  .s.  14. 

"  The  trial  of  every  election  petition  shnll  he 
conducted  l/eforc  a  Jiuhje  of  the  Coitnty  Cmirt 
ill  the  district  in  vhich  the  eleetinn  coutrovi  rlid 
van  hehl,  or  the  Judije  pre.sidiixj  in  hix  ntnnl, 
tor  the  reaiions  mentioned  in  the  Acts  rehitimj 
to  County  Courts." 

Ilild,  infra  r/;v.sof  the  Provincial  Lcyislatiiii'. 
Croire  v.  McCiinli/,  ti  R.  &  (i.,  ;i<il, 

5th  R.  S.,  C.  57,  s.  00- 

V.    STATITES,  XOVA  SCOTIA, 

44  Vict.  1 1881),  C.  1,  ss.  18  illHl  0!). 

3th  R.  S.,  c.  38,  s.  4  - 

V' '  3rd  R.  S.,  c.  45,  s.  !.'>. 


3th  R.  S.,  c.  48,  s.  7- 

"Xo  /lerson  shall  ride  or  drive  any  horse  at 
full  speed,  or  in  a  disorderly  manner,  in  the 
pinhlie  street  or  hiyhway  in  any  town  or 
villaye." 

I'laiiiliffantl  I).  (!.  entereil  into  an  a<j;reement 
to  trot  a  race  on  the  Wentwortli  Road,  for  the  i      3th  R.  S.,  C.  58,  S.  0 
Slim  of  SM  a  side,  between  the  plaintiff's  horse 
"  Charley  "  and  a  liorse  owned  by  \V.  ( i.,  known  ] 

as  "  Royal  Harry."     The  money  was  deposited:      Jtli  K    S     o   07 

in  defendant";*  hands  as  stakeholder.  i 

In  an  action  brouglit  by  plaintiff'  in  the  Coun-  ■ 
ty  Court  to  recover  the  stakes,  it  appeared  that  :      3th  R.  S.,  C.  78,  S,  13 
the  AVentworth  Road  was  a  public  street  witliin 
the  limits  of  tlie  town  of  Windsor. 

Held,  that  the  contract  was  tainted  with  ille- 
gality, and  incapable  of  being  eniorced,  as  being 
made  in  violation  of  the  provisions  of  5th  R.  8., 
c.  48,  8.  7. 

Doran  v.  Chambers,  20  X.  .S.  R.,  (8  R.  &  (1.),  .S09  ; 

9C.  L.  T.,  7. 


3th  R.  S.,  C.58,  s.  a  ' 

s-  3r(l  R.  S.,  C.  43,  s.  10 
4th  R.  S.,  c.  21,  s.  10. 


Su  4th  R.  S.,  c.  21,  s.  n. 
5tc  3rd  R.  S.,  c.  JS. 

Sec  4th  R.  S.,  c.  53,  s.  13. 

3th  R.  S.,  c.  78,  s.  15- 

Sce  4th  R.  S.,  C.  53,  s.  1.1. 


5tb  R.  S.,  c.  48,  s.  13- 

S.t  4th  R.  S.,  c.  47,  8. 13. 

5th  R.  S.,  c.  .50- 

See  STATITES,  XOVA  SCOTIA, 

42  Vict.  (1879),  C.  1. 

5thR.  S.,  c.  50,  8.  70- 

See  SLAIl'TES,  XOVA  SCOTIA, 

42  Vict.  (1879),  c.  1,  8.  00. 

5th  R.  8.,  C.  50,  s.  88- 

See  STATUTES,  XOVA  SCOTIA, 

42  Vict.  (1879),  c.  1,  8.  76. 


.ith  R.  S.,  C.  84, 8.  8— 

So.  2iidR.  S.,  c.  113, 8.9- 

4th  R.  S.,  c.  79,  s.  9. 


oth  R.  S.,  c.  84,  8. 11- 

Sce  4th  R.  S.,  C.  79,  s.  12. 

5th  R.  S.,  c.  84,  s.  17- 

See  4th  R.  S.,  C.  70,  S.  IS. 

5th  R.  S.,  c.  84,  88.  8  and  18  - 

Se,<  4th  R.  S.,  c.  79,  88.  9  and  19. 

5th  R.  S.,  C.  84,  8. 18- 

Stc  2nd  R.  S.,  c.  113, 8. 19. 

5th  R.  S.,  c.  84,  s.  19- 

Ste  2nd  R.  S.,  C.  113,  S.  20. 


1525 


STATUTES,  NOVA  SCOTIA. 


ir.2G 


.nil  R.  8.,  C.  H4,  s.  '21  -  I     .1th  K.  S.,  f.  92,  s.  1 

•V"  4tll  K>  S.,  C.  70,  S.  22.        (Hill  ipfs^lc  111-  sworn  copies  to  he  filed  with 

Ueu'i^tiiU'  ol'  Dffils  u  luii^  iiiiikei'  resides)  — 
.nil  Kt  Sa,  C.  84,  S.  2:t  —  I      //■'''/,  not  to  iippiy  to  ii  eiisewheretliegrantee 

>'"  llh  Ka  S.    C  lO   S.  24.    '""''^'''  '^  'lillot  j-alf  not  tiled  Imd  gone  into  actiiiil 

pof-session  of  tlir;  ipro|»ilv. 

.5th  R.  S.,  C.  8K--  i  •'^'■/'■""  V.  Ii'ii  ■>«'■,  .1  R.  &  (i.,  l-'S. 


X  '  STATUES,  NOVA  SCOTIA, 

^i.Kieo. ;{  iisi.>),  c.  14— 
2ii:l  R.  S.,  c.  112. 


jth  It.  S.,  0.  02,  ss.  1  and  10- 

>'    4tli  R.  S.,  c.  S4,  ss.  1  and  <(. 


I     .ilh  R.  S.,  c.  »2,  s.  4- 

(Atlidavit  toiu-eoiiipiiny  liill  of  sale) — 


.»th  R.  S.,  C.  80,  s.  4  - 

'"<''(  2ntl  R.  S.,  C.  114,  S.  .1.  1      ///'/,  lliat   liie   only   ainoniit  reiiiiired    to  lie 


swoiii    to  in   tlie  iitiiilavit   is  the  iietual  amount 
seeiii'ed,  not  includlni;  the  nominal  eonsideriitioii, 


5th  R.  S.,  C.  00,  s,  18- 

>'"  1st  R.  S.    C.  11.1    S.  10.    '""'  tliat  the  omission  of  the  oceiipalion  of  the 

deponent  from  the  hody  of  the  iUtidavit  is  not  a 


.1th  R.  S.,  r.  01,  8. 1     Statute  of  Frauds)  - 

■■^1//     ll'dSC.I,     l-.st.ltiS,     III'     iillni-     ililclUxtH     ill 

liimh,    or   hi    niiiiimj   (i.ri'Ha  or   niJur  niiniiKj 
ri'jhts   III'  pririhiji'S.    imt  jnU  in    vritimj  and 
sliiiu'd  liij  the  imrliix  I'ridtiii'j  ar   imtkiiiJi  tli>;  [ 
fniiiie,  or  their  ikjihIs  thiriiintn  hm-i'iillij  mdho-  ] 

ri.Zed  hij  vrilillij.  shall  harr  the  fiirri'  (if  IntSf'S  i 
(ir  cstati'K  at  n'ill  iinUj.  i.rcijit  Iraxi-s  nut  f.rri'rd-  i 
inij  the  lina  nf  thrir  i/iars  fruni  liic  nuikiinj 
thereof,  v:herenii(in  the  ri-nt  r< .iirri-d  ahall  | 
mnoHnt  at  leant  to  tn-o-thirds  < if  the  anniial\ 
raliti'  of  the  lands  demised."  ', 

I'laintiir,  in  an  action  for  rent  under  a  parol 
lease,  omitted  to  give  any  evidence  of  the  value 
iif  the  property. 

H(/d,  ]i(r  McDonald,  ('.  .(.,  I'utcliie,  .J.,  ron- 
iiirrini),  that  the  point  that  the  lease  was  had, 
the  rent  reserved  not  having  heen  proved  to  be 
two-thirds  the  annual  value  of  the  i)ro[)erty, 
was  not  open  to  defendant,  not  having  been 
taken  in  the  Court  below. 


fatal   defect,   tlie   atlidavit    being   made   out  of 

Court. 

(.''iiiiiii'ihjhaiii   V.  .l/o/'-c.  ■_'(!  \.  i'^.   li., 

IS  It.  &  <;.),  110. 

SV    STATITES,  NOVA  SCOTIA, 

4«  Vkt.  (18S:{i,  c.  11,8.  1- 
ASSItiNMKNT    BILLS  OF  SALE. 

.ith  R.  8.,  c.  02,  s.  10 

V    :{rd  R.  S.,  c.  110,  s.  «. 

.1th  R.  S.,  c.  04  -(Jlarricd  Women's  Prop- 
erty Act,  1884)— 

*'  III SBAND  AND  WIFE. 

.1th  R.  S.,  c.  04,  s.  10,  same  as  Acts  1884, 

c.  12,  3.  6— 

(Hu.sbandand  wife  joined  in  action  as  to  iter 
property  or  torts)  — 

If' hi,  that  where  the  husband  was  insolvent 
and  absent  from  the  Province,  and  was  joined  as 


„      M   1^       II    I     w    -^11  -1    ^  I  plaintiff  with  his  wite  m  an  action  for  injury  to 

/'<;•  McDoiuild,  .J.,  Miiith,  .1.,  io;('Vt/-;-(//'/,  that    '  ,  .,      ', 

.,  .     .       ,  .,  ■         c    ,'  iier  separate  proi)ertv,   an  order  reiiuiring  the 

the  omission  to  prove  the  lu-oportion  of  the  rent        ...  .■.,.,. 


reserved   to  the  yearly   value   of   the   property 
was  fatal  to  plaint itf's  case. 
I'oinr  V.  drijliii,  'JO  .V.  S.  I;..  iS  K.  ,»e  (!.>,  ;V_', 

.1th  R.  S.,  C.  01,  s.  0 

Ste  STATUES,  IMPERIAL, 

10  A:  20  Vict.  c.  01,  s.  3. 

.1th  R.  8.,  C.  01,  s.  0  - 

S"  1st  R.  8.,  C.  121,  s.  4. 

.1th  R.  8.,  c.  02  '  lOr  the  Prevention  ol' 

Frauds  on  Creditors  by  secret  Bills  of  Sale) — 

Ste  STATITES.  IMPERIAL, 

18  ds  10  Vict.,  c.  36. 


wife  to  L'ive  secuiity  for  defendant's  costs,  or  to 
adil  a  ii'Xt  fiieiid  as  plaintilf,  was  bad. 

liohabnt  a/,  v.  J/w^s  7  K.  &  V,.,  lli."). 

Ith  R.  S.,  c.  04,  s.  22  - 

s     STATITES,  XOVA  SCOTIA, 

11  Geo.  li  (litis  c.  6,  s.  1. 


.1th  R.  S.,  e.  100 


s     Ith  R.  8.,  C.  90. 


Ith  R.  S.,  c.  100,  s.  11- 

Sre  STATITES,  XOVA  SCOTIA, 
32  Geo.  2  (1158),  C.  11,  s.  12— 
3rd  R.  8.,  c.  127,  ss.  11  and  12- 
4th  R.  8.,  c.  00,  s.  11. 


1527 


STATUTES,  NOVA  SCOTIA. 


1528 


5tll  Rt  8.,  Ct  100,  8.  12—  tl>L'  iiiMUllicii'iicy  iliil  imt  loiiio  properly  lioforo 

•V"  4tll  K>  Sf,  C.  90,  S.  I'i.    ''"^  County  dmrt  on  iippcil,  us  it  nliouM  Imvf 

Ix'i'H  hroii^lil  up  on  '■(  fili/riiri. 
.Ith  K.  S.,  f.  100,  S.  10-  ''"-  ^"'"'''  •'•-■''""^l  .leffU.lant  .shouM   Imv. 

v-      i^tu    a     o    tin  «    ';fl     ''ii'l  J"iU!""''"t  liefore  tlie  MagistnUi'. 

/'<  (■  McDoimlil,  (  .  .1.— I  liiit  lliL- (  ouiity  ( Hurl 
JudgL'  hiiil  no  jurisdiction  to  adjuclioiite  on  tin.' 
sulijeut   luiitter  of  tlie  uiiusi-,  an  tliu  appual  viis 


3tli  K.  8.,  €.  KM),  s.  W 

History  of  this  suction 


,      ...         ,  1      .   .     r      .1       troni  void  i)ro(;ccilini,'s. 

Tiio   power  of  scllni,^  tlic  real  estate  for  the  '  «>  _ 

payment  of  legacies  is  apjilicahle  to  tlio.se  cases, 

where  it   hiw  been  expressly  made  cliargeahlc        .      ,,    e     „    <«., 
...  1  .1       w    .    .i...iii.       i)lll  K.  8.,  c.  10*2,  s.  a - 

with  them,  or  can  lie  so  gathered  from  the  will  ;  '  ' 

and  the  un.levisc.l  lands  inu.st  then  tirst  he  sold  '**'"    ST.4TITKS,  XO>.i  SCOTIA, 

))efore  resort  can  lie  had  to  the  devi.sed  portion  I  42  VICt.  (ISIO),  C.  2,  S.  :{. 

of  testator's  real  estate.  ' 

In  r,  EMiaU-  ofMrKay,  1  Did.,  LSI.  3tli  K.  S.,  V.  102,  s.  I  - 


S",  al.^i>,  2lld  K.  S.,  f.  130,  8.  13,  ""/"'"•  i 

5111  K.  8.,  C.  100,  88.  20  uiid  31  - 

■v>  2nd  K.  8.,  c.  130,  88. 13  and  IS. 

5tli  K.  8.,  c.  100,  8.  04  -  ' 

(Review  of  taxation  in  I'loliate  Court). 

s     PltOK.\TE  (01  KT,  in. 

I 

5(li  K.  8.,  c.  100,  8.72- 

S"  3rd  K.  8.,  c.  127,  s.  70. 

6tli  R.  S.,  c.  100,  ss.  70  and  84-  j 

Sec  4tli  R.  S.,  ('.  00,  ss.  77  and  SI. : 

5tli  K.  8.,  C.  101,  8. 10 

<S'm   2ndK.  8.,  c.  150,8.  5. 

.nil  R.  S.,  c.  101,  s.  25  -  ! 

See  4111  R.  S.,  f.  112,  s.  13. 

dtli  K.  S.,  c.  102,  8.  2  - 

(When  defendant  does  not  reside  in  County 
where  summons  issued,  plaintiff  to  deposit  with 
Justice  a  sum  eipial  to  ten  cents  per  mile  each 
way  of  (lis'  aiico  between  residence  of  defendant 
and  place   )f  trial)  — 

I'laintiff  failed  to  make  sufficient  deposit,  the 
.Justice  allowed  him  to  make  up  the  deticiency 
at  the  trial,  went  on  and  gave  judgment  for 
plaintiff,  defendant  making  no  defence.  Defend-  { 
ant  appealed,  and  moved  in  the  County  Court  on 
above  ground  for  judgment,  which  was  refused. 
On  the  trial  on  the  merits  in  the  County  Court, 
plaintiff  obtained  judgment.  No  appeal  from 
this  '"as  taken,  but  the  .Judge  stated  a  case,  on 
the  interlocutory  application  for  the  opinion  of 
tlio  Court  as  to  the  power  oi  the  Justice  to 
permit  the  defect  to  be  cured  at  the  trial. 

Held,  per  Weatherbe,  J.,  that  the  question  of 


S"  4tli  R.  S.,  ('.  01,  s.  11. 

5tli  K.  8.,  f.  102,  8.  13 

V     ST.ITITES,  XOVA  SCOTIA, 

2SVUI.  (1S05I,  c.  1,  s.«. 

5tliK.  S.,€.  102,  8.30- 

s> '  3rd  R.  8.,  C.  12S,  s.  27. 

5tli  R.  S.,  f.  102.  s.  33- 

>"  4tll  R.  S.,  c.  01,  s.  30. 

,5tli  R.  S.,  ('.  102,  s.  34- 

Nt<  4tli  R.  S.,  c.  01,  8.  31  - 

5tli  R.  S.,  c.  103     (Siinimary  Convictions 

and  Orders  of  Justices)  — 

This  Act  docs  not  apply  to  the  .Slipcmliiiiy 
Magistrate  of  the  City  of  Halifa.x.  (Questionable 
wlicliier  i)rovisions  of  Act  excluiling  tlie  iiifor- 
iiiant  from  giving  evidence  in  certain  cases 
applies  to  prosecutions  under  the  I..i(iuor  Liceiist! 
Act  of  1S8().  Wlien  a  cause  uiuler  that  Act  is 
being  tried  anew  before  the  County  Court,  the 
evidence  of  the  informant  who  has  rciioumeil 
under  sec.  'A'2  of  c.  W.i  since  tlie  trial  bolim' 
should  be  received. 

(Jnn)i  V.  Shc/iiaril,  '20  X.  .S.  R., 

(S  R.  &  (i.),  470. 

3tli  R.  8.,  c.  104-(.Iiidi€aturc  Act)— 

Hi  Id,  that,  after  the  pas.sage  of  the  Judicatiile 

Act,  the  Judge  presiding  at  the  trial  was  hoiiiid 

to  give  effect  to  the  ecpiitable  rights  of  the  parties 

though  the  cause  had  been  at  issue  previously. 

McPhiir.wn  v.  M<:Douald,  C  R.  &  (i.,  •-'4-'. 

5th  B.  S.,  c.  104,  8.  20,  sub'sccs.  7  and  8- 

Sub-aec.  7.  "  Uimi  miif  trial  bif  ajury,  ichere 
the   Court    or  the   presidinij    Judys   otherKM 


I.'i29                              STATUTES,  NOVA  SCOTIA.  lo.'JO 

ilirpctt,  it  ahull  mt  he  lawful  for  suchjimi  toijive  .i|h  !{•  S.,  f.  101,  0.  .\I.\.«  H.  2  — 

n  nmcrnl  rcrdivt,  awl  if  xlmll  Iw  thv  du/i/  of  kiu/i  Uniieuessiiiy  li-ngtli  »f  i.kM.linj,'s  is  n  mutter 

Jnn/  h,  ;/ire  a  s/ieiinl  r>  rtlkt  if  I  hi'-  Court  or  /m-  „.i,i^.i,  ^.,1,,  l.i.'utifLtuull.v  dealt  witli  ..n  tiixiitioii 

»i(limi  Ju(hjf  80  (liriHt ;  ami  uult'ns  t/ie  Court  or  „f  ^,„yts.     I'k'iis  eximndfil  at  great    leiigtii  are 

//,(■  iirv^idina  Juili/v  otlwnrlx,    ilirei/s,  thv  juri/  ^^„^  „„  ^]^.^^  m.,.,,„„t  nuiessarily  einlianassin-. 

ma;/  i/iir  vitlar  a  (jeuvral  or  a  special  verilitt,  hut  MilJouald  v.  Clnrb  ,  •_'(•  N.  S.  H., 
//(('«  suh-aec/iun  s/iull  iiuf  aji/ih/to  actions  of  lihel," 


Sw  XEW  TRIAL,  Ml. 


(S  K,  &  (1.),  •_>.-)4. 


5th  H.  S.,  f.  104,  0.  XIX.,  R.  3- 

.1th  R.  8.,  C.  104,  S.  20,  Sllb>ser.  8—  "  A  defemlaut   iu  an  action  nuni  set  o{f\  or  ^et 

iliidge  may  iliieet  jury  to  answer  (|uesti()iis    upfhjl  way  of  countvr-claiiu  atjuinst  the  claiinx  of 

cit  fact,   "(aid  oil  'In  jiiidiinj  of  llii   Jiiri/  u/Ktii    the  /)laiutijf\  aui)  riijht    or  claim,  whether  .inch 

flu  qu('<llon>'  which  fhi  ij  (tii-^m  r, /hi    Jiidi/i    sh(dl    neZ-aJf  or  couufer-cluiin  sound  in  ilamat/es  or  not, 

niiir  Ihi  nrdici."  and  such  set-off  or  counier-cUunt  shall  hare  the 

'^Oii    /hi   jindiiKis"   means  arrordiini  to   the    mi  me  effect  as  a  cross  action,  so  as  to  enable  the 

liudings.     A   vercliet  canunt   Ke  enleied    ineon-    Court  to  pronounce  a  find  judijment  in  the  mime 

sistent  with  the  findings.  action,  ho/h  on  the  orii/in/d  and  on  the  cross  clnun. 

Criiijhiiin  V.  Sjiiiimi/,  ~  H.  fc  (I,,  HCJ,    Hut  the  Court  or  a  Judi/e  may,  on  application  of 

I  the  plaintiff  he/hre  trial,  if  in  the  opinion  of  the 

5th  R.  Sm  C.  104,  S.  43—  \  Court   or  Judije   such   set-off  or    counter-chiini 

(I'rnvisinns  in  case  defenee  or  coimter-ehiim  is    cannot  he  conrenientli/  disposal  if  in  the  pendiui/ 

licyond  tlie  jurisdiction  of  tiie  County  Cotirl)—    iJc^wif,  o'"  <>ui/ht   not  to  he  allowed,  refuse  per- 

11' Id,   tliat   the  County  Court   may  deal  with    mission  to  the  defciidun/ /o  ariid  him.<elf  th- renf.'' 

the  counter-claim,  which,   if  it  were  an  original  j  ■>'"   A',  f: ,  infra. 

claim,  woidd   lie  lieyond   its  jurisdiction,  to  the 

extent  of  an-iiri  riiiij  /h  /itaiii/ifi  claim,  but  not        5th  lt«  S.,  ('.  104,  0.  MX.,  it.  4  — 
further.  '      '^  Krcrji    /i/eadiiii/   shnll   contain,   and  contain 

llf/is  V.  Ci-'ii/Zhoric,  7  It.  .V  (;.,  •J.VI.    ,^^,/,^_  „  statement  in  a  suinniari/  form  of  the  ma- 

I  tei  iiil  facts  on  which  the  piirty  pltadinr/  relies  for 

5th  R.  8.,  e.  104,  0.  IX.,  K.  8—  l  /^/^  ^j^^j^^^  ^^  difeme,  as  the  case   maij  he,  hid  nut 

'•Where  hij  nnij  Stutute.  provisinn   is  niadc    the  eildi  nee  b;/  which  the//  arc  to  be  prored,"  .S-c. 

fur  sen-ire  i>f  amj  writ  nf  Kumnion.s,  hill,  pcti-       xi,e  case  of  Miirnuj/on  v.  Loriiuj,  (i  (^  15.  1)., 

/inn,  or  other  pmecss,   upon  au'i  corjionttion,    uh),  which  is  authority  for  the  proposition  liiat 

Nf  i(n;>  SDcietij  iir  fcUiivxhip,  nr  iin>j  hod>i   or  1  evidence  of  seduction  cannot  lie  given  in  an  action 

iniiulier  iif  jicrsiins,  whether  cortioriUe  or  other-  •  „(  hi-cach   of   (jromise  of   marria;j;e  mdess   the 

ii-ise,  ererij  writ  of  sumnn.ns  ma;/  la:  served  '«,  seduction  is  alleged  in  tiu;  statement  of  claim, 

//((■  manner  so  provided..     (Hhervise.  the  .srnKe    w-as  decided  upon  the  Knglish  rule  which  has 

hiiiij  lie  served  on  the  jirinci/nil  ufflcer.  nr  un  the  i  since  been  amended  Ky  inserting  the  wonls  "for 

ill  rli  or  .mcretnrij."  /i/x  claim  or  ihf  nn  ." 

Held,  that  in  the  absence  of  any  speciid  pro-  j  /',,■  Ritchie,  .T.,  <lelivering  the  judgment  of 
vision  in  the  City  Charter  for  sei'viec  of  i)rocess  j  the  Court,  the  amendment  materially  iilters 
iijion  the  City  of  Halifax,  this  rule  would  apjily,  \  the  rule,  in  my  ojiinion  confining  the  facts  re- 
and  woidd  make  sutiicient  the  service  upon  the  i|iiiicd  to  be  slated  to  those  material  to  ti\e 
Mayor  of  notii/c  of  action  as  well  as  of  the  writ  cause  of  action  or  <lefencc,  and  it  would  not  now 
(if  summons.  be  neee.ssary  to  plead  the  seduction,  which  is 

O'llrlm  v.  The  Ci/ij  of  Halifax,  7  R.  .t  <!.,  .S!).'? ;    not  material  in  that  view. 

7  C.  L.  T.,  4;{."..  ,    l-:,nlirii    v.   Wood,  -JM  X.  S.  H.,  (S  R.  iS;  V..),  40. 

5lh  R.  S.,  C.  104,  0.  XIII.,  R.  8-  .5th  M.  S.,  f.  104,  0.  XIX.,  K.  14- 

■S'l'  'ind  R.  8.,  C.  134,  S.  144. 1      ••Amj  eonditiun  precedent,  the  performance 

j  or  occurrence  of  which  is  intended  to  be  con- 

5lh  R.  S.,  C.  104,  0.  XVI.,  Rr.  2  and  10—    >  tested,  shall  he  distincthj  specified  in  his  phad- 

( Wrong  plaintitf'by  mistake,  and  remedy  for  I  imj  h;i  the  plaintiff  or  defendant  (as  the  case 

iiiiti  joiniler  ami  mis-joinder)—  I  mail  he),  and  suhject  thereto,  an  averment  of 

//•/(/,  tiiat  Rule  "J  nmst  be  read  with  Rule  10,  I  </ic  performance  or  occurrence  of  all  condi- 

luid  that  a  party  cannot  be  substituted  or  added  i  tions  precedent,   necessary  for  the  case  of  the 

iis  plaintiff  without  his  consent  in  writing.  plaintiff  or  defendant,  shall  be  implied  in  his 

Wnrzhnnj  v.  ll'ibh,  ~  R.  .V  ({.,  414.  ipleadinn." 


15ni  STATUTES,  NOVA   SCOTIA,  15:^2 

'I'lio  pliiiiilitl?^,  ill  ilirir  >i;itfiii(iit  cif  I'laini,  smr.il.s  in  ilaiMiiu'i'-,  .iinl  iiiiiy  involve  liithts  ui 
iillf;,'LMl  thai  llif  ">uiil  |iii>|ifily  Wii.H  iici|iiiivil  otli  •  iiiiitic-t  nut  in  tiic  ori^tiriul  «iiit,  and  iIrtc 
liy  the  said  A.  .1.  1>.  (tiiu  wifo)  dining  ripvuiliui',  (ovr  It.  17  faniint  aUV'ct  ii  case  wlit'if  a  Ml!  nl 
olliciwisu  than  fnun  Irt  Niiid  linsiiand,  and  In-  (•\chaii;;L'  i«  ii'lit'd  mi  as  a  Hct-otV  only.  Uiiilir 
liiii;;L'd  to  liiT  nndt.'i- and  liy  virtut!  nt'  the  Mai-  llulc  IS,  wlii'ii  the  jilaintitl' ini;ii;ly  join.s  is.siir, 
I'ii'cl  Wonu'ii's  I'lopcrty  Act  of  llS>S4,  in  her  own  ,  he  cnn  rai.sc  tiic!  dffi'iiou  that  the  liill  haviiiL' 
right,  and  whioii  she  claims  to  l>c  entitled  to  lieun  specially  indoised  to  the  i)ank,  cmiM 
luider  the  said  Act."  not     lie    transferred    to   the   defendant    excijit 

/'ir   .McDoiialil,    I'.  J.  -The   defi^ndant    was  !  liy  indorseiiiciit. 
lioiiiid   i«]   plead   non-perforinance  of  the  condi- ;       I'l  r  McDonalil,  ('.   .1.,  and   llitchic,  >1.  — 'llnil 
tion  precedent   ri'i|iiiiiii^'  the  lilin;,'  in  the  lieuis-    if  ])laintilT  wisheil  to  deny  the  indorseiiiont,  he 
try  of  Deeils  of  a  consent  in  wiitiii},'  hy  the  liiis-    should  have  replied  speiially,  and  that  liy  nu  re- 
hand,  if  he  wishcil  to  take  advaiitajje  of  it.  ly  joining  issue  he  conid  not  put  ilefendanl   tn 

/'rr  McDonald,  .l.-Tlie  plaintill'.s  .statement    jiroof  of  the  indorsenieiit. 
of  claim   iniplieil  an  averment  of  the  peiforni- I  /'o/'-i/'/i  v.  J.uirn  iin ,  '  K,  &(i.,  14s  ; 

ance  of  the  conditions  |)recedeiit  neces.sary  to  i  7  ('.  L.  T.,  174. 

maintain    her    ca:<e,    anil    the   defendant    must 

sjiecify  distinctly    any   condition  the  perform- 1      atll  II.  S.,  C.  104,  0.  XI.V.,  Kr.  t1  and  lU  - 
ance  of  which  he  intended  to  contest.  (tieneral  denial  iiisnllieieiit.     Answers  t<i  lie 

IUiIkiLi  V  it  III.  V.  ,l/o/'.<i ,  I  direct  and  full)  — 

•J(.  X.  .s.  R.,  (s  l{.  ^  (i.),  -Jl-J. ;  ''>'<''■  AMEXDMEXT,  II.,  II. 

I 

III  an  action  hrought  hy  plain'.itl'  as  indorsee  !  .5|h  it.  S.,  C.  104,  0.  XIX.,  K.  SO - 

uyaiiisl  .lefendaiit  as  imhirser  of  a    iiromis.smy  ,S;,,,  .jp,|  |{^  ^^^^  ^.^  ^j^^  g^  210. 

note,   it  appeared  that  the  note  was  made  pay- 

nl.le  "at  the  .Merchants'  I'.ank,   Il,iwke.-I.ury."  I  ,,„,  ^^    s^,^  ^^  ^Q^^  ^^^  jXj^^  ^^^  ^^_ 

'J'liere  wa.s   no    alleiration    in    the  statement    of        .,  ,      ■       ■      ,     ,  ■  if, 

,   .  ■  1  ,  ,  ,  ,    1       N"  aiitlioritv  in  tliidiie  to  ti.ice  detendant   tn 

claim  to  show  that   the  note  was  made  iiavahle  ■         r   '  i  •  i         ■ 

,  ,        .  ,    ,  ',    .        adoiit  iili'a  ot  L'eneral  issue,  or  otherwise  to  have 

nt  that  place  or  that  it  was  duly   presented  fori  .    ,'     '  ■        ,  ■ 

'    ,  ,  '■.,■,  iudL'inent  against  him. 

payment  there,  or  that   any  notice  ot   dishonor   "^     °  ^  cj^,^,  nvvyxyc   •> 

was  }j;ivcn  to  defendant. 

//-  /,/,  tdiat  in   the  alisence  of  such  averments  |      gj,,  ^^    ^^^  ^    ^Q^    ^    ^^^^     ,{^  3  _ 

and  jiroof,  jilaintitl  couhl  not  recover.  i  .  . 

, ,       .,    ^        1      .1  1        .  rill       "  ir/'A    (I   ihfiufii  sc/hii'i    nil  a   litiilir  In  I'nn 

Alio,  that  iin<ler  the  present  system  ot  plead-  •        ,  .         ,  , 

,      .         '      1   f      1     .        '  art  inn,   /he  "iiiii   of  ninmi/  nlln/nl  to  liari    Ih'k 
int.'.    It    was   not   incuiiilieiit   upon  detendant   lo  i 

,         c     .  .■   1  .       1   •    .n"         1..  '  /ciKlcnil  Diiiif  lie  hroiii/h/  into  Coiir>. 

deny  facts  essential  to  plaiiititl  s  I'lght  to  recover  ,.  e 

,  It.  11        1   •     .1       .    .  .         Where   the   ohjecl  of   a  tender  is  to    relieve 

uiiles.s  such  tacts  were  alleL.'eil  in  tlic  statement  ,  ' 

c     ,    ■  ""  I  i)ioi)eitv  of  a  lien   it  will  still   have  thai  eflecl 

of  claim.  I  '      '       "^ 

,,     I-  ,,■,,■      ,,,,x-   ^    1,     ,..  I,    t  ,.  V    ,.,.,      wiihoui   payment  into  Court  of  the  nionev  mp 

])(irliii{i  y,  (•illii ■■<.  "JOX.  .s.  i;.,  (s  K.  ,S:  (..),4J.{;  ■    •' 


!»  V.  L.  T.,  I-JO. 


tendered. 

ll'/7/;.<  V.  Si-nl,  -JO  X.  .S.  1!.,  (S  R.  &  (;.),  44il. 


sth  R.  s.,  c.  104, 0.  XIX.,  R.  II-  g„,  ,j^  ^,^  j..  ^Q^^  y.  xm.,  r.  « 

•Jt  shiiU  nut  III'  siQJiriiiit/iir  0  ihfiuihnit.  in        (Payment  of  money  into  Court  with  defence 
his  slatPinent  of  ilefenn-,  to  ilinnj  ijinii'milij  thr  '  dcnyini,'  liahility)  — 

rirrnimh-  ulhujcil  Inj  thr  uttitrnifiit  nf  rliiini.  ur  To  an  action  for  freight  alleged  to  lie  due  fn|- 
for  a  jiluintiff  in  his  rijihl  to  ilcn'i  (iincrnUil  the  cariiage  of  goods  defendant  pleailed  twe 
thr  ijrnnnds  aUeriml  in  <i  ilr/mrr  /<;/  mii/  of  ■.  pleas,  the  one  alleging  tender  liefore  acti'/ii 
cnnulrr-chiim,  hnl  rarh  jiort'i  ninst  ilriil  sjirri-  hronght,  ami  the  other  payment  into  Court  in 
fii-iillij  vith  enrh  iillnjatiun  offurt  of  n-hich  hi'  satisfaction  of  the  [ilainlitl's  claim. 
duis  not  admit  the  truth,  except  damnr/es."  \      Plaintiff  having  accepted  the  money  paid  iutu 

/'ir  McDonald,  J.,  Smith,  J.,  (■«/»■»*•;•/»;/.—  ' Court  in  full  satisfaction  of  the  claim  in  ivspict 
R.  :i  of  Order  \I.\.  distinguishes  hetween  a  of  which  it  was  paid,  in  accordance  with  Order 
set-off  and  a  counter-claim,  and  if  it  did  not,  xxii.  Rule  (>,  defendant  contended  that  the  plea  of 
there  can  he  no  douht  that  the  word  "  counter-  temler  involved  the  costs  of  the  action  up  to  tlie 
claim"  means  much  more  than  "set-oft'."  time  of  payment  into  Court,  and  left  an  iasiie 

R.  17  does  not,  like  R.  .S,  refer  to  a  set-otfnt  still  outstanding  which  he  was  entitled  to  liiive 
all,  hut  counter-claim  only,  which,  unlike  a  tried,  or  to  have  the  action  dismissed  with  costs, 
set-off,  may  be  set  up  as  a  defence,  though  it        Jlrlil,  that  the  acceptance  of  the  money  paiil 


i:)83 


STATUTES,  NOVA  SCOTIA. 


1534 


iiiti)  rourt  in  full  satisfiiction  of  the  plaiiitifr'n 
iliiiiii  wiiM  II  (k'ti'i'iiiination  of  the  ivctioii,  k-iiviiig 
only  tlie  (jucHtioii  iif  L'oHts  or  tt-mlui'  to  l>e  (lis- 
pKScd  (if  liy  the  .ludgu. 

Kinthiu  V.  AV//S  'JO  N.  S.  R,,  (S  R.  <&  ("..),  '.'.SS ; 

XV.  \..  T.,  :«»!>. 

r>th  R.  S.,  c.  104,  0.  XXVII.,  It.  14- 

"  Ain/jwlijmmt  hy  de/uulf,  vh:th<r  iiiidir  fhii 
Onli  r  or  iiiiil)'r\  ain/  o>hfr  of  th(''<(  Jhilfx,  may 
III'  .11 1  nslile  hy  Ihi  Court  or  a  Jtidije  upon  xurh 
/'  riiii  (ts  In  rns/.s  or  olheririn   «<  -iiii'li  Conri  or 

Jii'li/e  mm/  Ihiid'  lil." 

Si;  JIDGMEXT. 

5th  It.  S.,  c.  104,  0.  XXV  III..  It.  1- 

"  77i(  Cmirt  or  a  Jiuhje  maij,  nl  any  tlrnji  of 
l/ii  iirnciciHiiijii,  a/loir  (llli'r  /larly  to  ultir  or 
'lull  ml  hin  liidoriemeiit  or  iiliadiin/s  in  siirli  man- 
III  r  (tnil  OH  .iwli  lf:i-m>i  as  may  ht  jiiil  ;  and  all 
xiirh  iimi'ndmi  nil  ihall  In  mridf  (is  may  In  iierps- 
"(try  /or  the  /mr/ioie  of  dilerwiiiiwi  the  real 
iiue-itionx  in  vontrori  riy  Inlirein  the  jurtiii." 

Sec  AMEXDMEXT. 

-.til  R.  8.,  0.  104,  0.  XXVIII.,  R.  12- 

(Anieiulineiit  ut  iiiiy  stage)  — 

See  AMEXDMEXT. 

oth  R.  S.,  c.  104,  0.  XXVIII.,  R.  14- 

'•  In  ap/imli  liro,ii/h'  In/ore  ii  Ihi  Court  "hall 
hiiri  nil  Ihi'  jioin  rs  and  duties  in  rcj'i  renm  to  the 
iinii  iidmi  nl  of  jiroi'eidimjs  irhirh  the  Court  hni 
ill  niiisi'!  ori(jiH(itinii  Ihi  rein." 

On  appeal  from  the  jiiilgiuent  of  the  County 
Court  refusing  to  set  aside  a  default  where  tlie 
uiit  liad  not  been  personally  served,  the  Court, 
under  Rule  14,  Order  XXVIII.,  amended  the 
rule  iiiii  in  tlie  Court  below,  by  adding  a  ground 
setting  out  that  defendant  had  a  defence  on  the 
iiiei  its,  and  had  satisfactorily  accounted  for  hi.s 
iinnappearunce,  and  made  .ibsolule  the  rule  on 
tiM'msof  a  hon  1  being  given  to  the  County  Court 
.ludge  to  respond  final  judgment,  defendant  to 
I);iV  costs  of  argument  and  appeal,  otherwise 
appeal  to  be  dismissed. 

Ilayden  v.  McXutt,  5  R.  &  (i.,  541. 

5tli:il.  S.,  C.  104,  0.  XXX.,  K.  1- 

( Interrogatories —Order  for  interrogatories 
and  discovery  on  oath  before  defence) — 

Hi'ld,  that  the  Judge  had  a  discretionary 
p^iwer  to  make  such  an  order. 

Commercial  Hank  of'  Windsor  v.  lici-l-u-ith. 

7  R.  \  <;..  MT. 


5111  R.  S.,  c.  101,  0.  XXX.,  R.  10- 

'•  If  tlif  jnirtii  friDii  ii'hiiiii  ili.'triiri  r>i  of  mill 
kind  ur  in.iiii'riiiin  i.i  .'muiiht  nliji'fts  to  fheiKdiie. 
nr  11)11/  jiiirt  thi'riiif.  Ihr  Cinirt  nr  n  Judi/r  nuni, 
if  mttiKjlid  that  Ihr  riijhl  til  Ihr  dinrnnril  nr  in- 
sjii'i'tiiiii  niiiiijht  di'iii'nih  nil  till'  ili'tirinini'tiiiit 
of  mil/  i.isin  nr  ijinntiuu  in  di.i/iiili'  in  thr  riiiim 
ur  hiottir,  nr  llml  fnr  ninj  nthi  r  nnsnii  it  i.s  dr- 
airnldi'  tlint  iin>j  ixmii'  nr  iiinntinn  in  disi'iilr  in 
the.  niiisi'  nr  imdtir  nhnidd  hr  diti'rniinid  hifnre 
di'i'idinii  njinn  thr  riijht  In  thr  dixeorery  nr  in- 
uprrtiun,  order  that  nueh  insnr  or  i/uestinn  Ac 
drtrrininrd  lirM.  mid  rrsi'rre  the  qumtinn  us  tn 

thr  di^rnn  ril  nr  insjirrtinn ." 

Ihlii,  Weatherbe,  .1.,  iliHsiuiinij,  that  this 
order  leaves  it  entiiely  in  the  discretion  of  tlie 
Judge  to  whom  a]tpli(atioii  is  made  to  "order 
that  such  issue  or  (luestion  be  determined  lirsi, 
and  reserve  the  (juestion  as  to  discovery  or  in- 
spection." 

Jenkins  it  al.  v.  Tu/i/nr,  7  R.  it  ('>.,  oOiJ. 


5th  R.  S.,  C.  101,  0.  XXXVI.,  R.  6- 

(Atlidavits  sworn  aliroad)  — 

//(/'/,  that  tlie  atlidavit  for  appeal  from  the 
Commissioner  of  Mines,  mider  ."nh  R.  S.,  c.  7,  s, 
8"2,  was  not  such  an  atlidavit  as  c(juld  be  sworn 
abroad  under  .■)th  R.  S.,  c.  104,  0.  XXXVI.,  R. 
tj,  or  under  ."itii  R.  .S.,  e.  107,  a.  "). 

lie  Hedley,  20  N.  .S.  R.,  (S  R.  &  (i.),  1,30. 

5th  R.  S.,  c.  104,  0.  XXXVI.,  R.  18- 

iSee  4th  R.  S.,  C.  »«,  s.  15. 


5th  R.  8.,  c.  104,  0.  XXXVII.,  R.  0- 

".l  ni  ir  trial -^hiill  not  hi  i/ranlul  on  tht.  ijround 
ofmisdirertioii  or  of  thr  im/iro/itr  admission  or 
rijirtion  of  irithnri ,  or  herait-sr  the  rerdirt  of  tin 
jury  ii-ns  not  tahn  upon  a  qinstiou  n-hirh  the 
jndi/e  at  the  trial  ints  nni  nsk'd  to  Intn  to  Ihi  in  ; 
unliss,  III  thr  o/iiiiii)u  ofthi  Court  to  which  a/ii'H- 
eation  is  made,  soiin  sidisluntini  injury  or  mis- 
rarriui/r  lias  hnn  Ihirihy  orrnsionrd  iii  tin  trial," 
it''. 

Tlie  Judge,  at  the  trial,  was  not  reijuested  to 
put  any  <iuestion  to  tlie  juiy,  although  he  a^ked 
plaintiff's  counsel  to  suggest  any  (piestion  for 
the  jury.  The  Judge  thereupon  discharged  the 
jurj',  as  there  was  no  matter  of  fact  for  them, 
and  ordered  judgmei.t  to  lie  entered  for  defend- 
ant.    Motion  for  new  trial  dismissed. 

Fairhanks  v.  Cn  iiihton,  '20  N.  S.  R., 

(SR.  &»;.),  8S. 

Si:':  practice,  146- 
XEW  TRIAL. 


1535 


STATUTES,  NOVA  SCOTIA. 


In8(i 


Sth  R.  S.,  C.  104,  0.  XXXVIII.,  K.  4- 

(Motion  for  jiKl^'iiicnt  wlierc  juilgiiK'iit  wioiig- 
ly  entered  on  tiiidinga) — 

Creiijliloii  V.  Siiiiniii/,  7  H.  &  (1.,  p.  UCi. 


.->lh  K.  S.,  c.  104,  0.  XXXYIII.,  K.  10- 

(i'owers  of  I'ourt  on  motion  for  juilgnient)  — 
Cruijhlnti  V,  S/iiiiin!/,  "  '^'  >t  *'m  !'■  I"*'' 


.Kh  l{.  N.,c.  tU4,0.  XLVI.,  it.  II 

swand  K.  S.,  c.  141,8. 'iiJ. 

5th  K.  S.,  c.  104,  0.  XliVI.,  K.  i:> 

S<'c  4tli  R.  S.,  ('.  01,  M.  Is. 


.'illl  R.  S.,  c.  104,  0.  XL.,  it.  '2'i 


iiii  n.  s.,  c.  101, 0.  XliVI.,  n.  lo 

(KfFi'L't  of  simniinhH  for  iigcnl  of  iilisi'iil  or  iili- 
Huondiiij,'  di'lilor)  — 

Almost  tliii  Slime  uf  4tii  Rev.  .StiitH.,  c.  !>7.  s 
111  oertiiin  nises  tlie  piirty  aliegiiij;  iiimself  to    |,,_  ^.^^.^,^^^  j,,,^^  ..  i,„,.l„,li„^,  ,.h„.ses  in  action  " 
\<v  ii.titled  to  execution  iimy  iijiply  to  tlie  Court    i,,^^.,.,^,,!  ,if„,,.  u  ,,,„trol."     Delendaiil  liad  iiri.lc 

un    assi^'iimeiit    to    H.    McK.    for    tlie    lieiiclii 
of  eredilors,  iiuliidiiij;  a  delil   due  I'yC    IlinH. 
Tlie  rule  does  not  eiiuMe  an  assi^jnee  of  a  judg-  .  _.^j  ,1,^,  ,i„„,  ,,f  ,|h,  service  of  the  summons  M,  K. 


or  .ludge  for  leave  to  issue   execution  accord-  ' 
iiiu'ly)- 


meiit  to   ssue  execution  in  liis  own  name. 

./(W  v.  MrXiill  it  (tl.,  '.'(»  N.  S.  R., 


luiil  no  money  of  defemlant's  in  his  hands,  liiii 

two  days  afterwards  ( '.    Ilros.  ]iaiil  the  amouiil 

(S  U.  &  (;.),  lAft.  ^  ,|,„,  |,y  ,|„,,„       _\ii  „f  ,ij.fei„|ai,t's  creditors  win, 

liail    executed    the    assignmeut    hail    (ircvioiisly 

lieen  ]iaid  in  full. 

Sic  4th   H.  S.,  !•.  04,  S.  1S8.  ,       U<l<l,  that  the  del>t   due  hy  ( '.    Bros,   to  de- 

i  feiiilant  was  in   McK.'s   hands,   covered  hy  tin' 
I  words  of  the  Act,   "goods  and  credits   of   ihc 

iibHcnt  or  absconding  person  then  in  his  iinsses- 
I  aion  or  under  his  contrcd." 
I         Jtohirtson  «/  <il.  v.  William'*,  (i  H.  &  (i.,  ;iii;i, 


:>th  R.  S.,  c.  104,  0.  XL.,  R.  *i:t 


.'ilh  R.  S.,  c.  104,  0.  XL.,  R.  :{2 

Sit  2imI  It.  S.,  c.  134,  s.  121. 


.Ilh  R.  S.,  f.  104,  0.  XL.,  R.  40- 

Si-r  1st  R.  S.,  c.  134,  s.  102. 


.->lh  R.  S.,  c.  104,  0.  XLIV.,  R.  1  - 

(Arrest  of  defendant  aliout  to  leave  the  Pro- 
vince)— 

'I'lie  wor<ls  "in  any  action  in  which  the  de- 
fendant is  now  liable  to  arrest,"  embrace  the 
whole  I'uthority  in  relation  thereto  conferred 
bv  4tli  Rev.  .Stats.,  c.  94,  8.  .SI. 


.5th  R.  S.,  0. 104,  0.  XIVI.,  R.  17 

sVc  1st  R.  S.,  c.  141,  s.  I(i. 


"ith  R.  S.,  c.  104,  0.  XLVI.,  R.  18- 

(Agent  or  trustee  entitled  to  discharge  ainl 
costs  in  certain  eases)  — 

III  III,  that  even  if  a  .ludge  has  power  to  (lis- 
eliarge  an  agent  who  has  admitted  assets,  wliirli 
AVrA/.//  V.  (,'o,7/„/^:R.  &(i.,  .118.    i,    ,i„„„tf„|,    such    discharge    shouhl     m.t    he 

granted  until  plaintiff  has  obtained  judgment, 
Aiiilirsoi,  v.  /'(irkrr,  7  K.  &  <i.,  -'tJ. 


.■»th  R.  S.,  c.  104,  0.  XLV.- 

>ei  2iul  R.  S.,  €.  134,  ss.  HI  173. 

.•)Ih  R.  S.,  c.  104,  0.  XLV.,  R.  1  - 

SVe  4th  R.  S.,  ('.  04,  s.  320. 

.->!h  R.S.,c.  104,  0.  XLVI.-  j 

.Ste  1st  R.  S.,  c.  141  - 

ST.\TITES,  NOVA  StOTI.i, 
1  (ieo.  3  (1761),  C.  8. 


5th  R.  S.,  c.  104,  0.  XLVII.,  R.  1  - 

>"  4f|,  K.  s.,  c.  07,  s.  2«. 

3th  R.  S.,  c.  104,  0.  LI.,  Kr.  I  and  .1- 

See  3rd  it.  S.,  i*.  124,  ss.  31  and  .l.i. 


.3th  R.  S.,  c.  104,  0.  III.,  R.  3- 

(Len^  th  of  service  of  notice  of  motion) — 
The   notice  of   motion   for  an   order  setting 
aside  a  replevin  order  was  served  at  G..SO,  p.  in., 

See  4th  K.  !S.,  C.  97,  &.  5.    f''''%'  f"»'  ^''^  following  Tuesday.     An  appeal 

from  the  order  made  on  such  notice  was  allowed. 
McDonald  v.  McKeuzie,  20  N.  S.  R., 

(8R.  Scii.),'2S-2; 
8C.  L.  T.,4r)0. 


5lh  R.  S.,  e.  104,  0.  XLVI.,  R.  4 


3th  R.  !S.,  c.  104,  0.  XLVI.,  R.  6- 

tSeclstR.  H.,  c.  141,  8.  8. 


i:..'{7  STATUTES,  NOVA  SCOTIA.  lo.'ls 

rtth  n.  s.,  c.  104, 0.  MX..  It.  II  I    •"»<•«  "•  ^^  *'•  1"»'  »*•  « 

>-  STATUES,  NOVA  S<OTIA,  ^"  STATI  TES,  >OVA  SCOTIA. 

I.-.  Vht.  < iHS'ii,  «•.  2,  s.  10.  >=»  VUt.  ( iHHOi.  ♦'.  '2,  s.  S. 

.ilii  i{.  S..  c.  101,0.  lA.,  I{.  2  •'ith  l{.  S.,  ('.  lO.i,  s.  17      iCoiinly  Court 

Si'ivicf  (i.;i(i  |i.  111.,  Friiliiy,  only  comiis  I'loiii    "''''' 

Mtii.  III.  .Siiliinliiy.     >S'ii  ().  \Al,,  K.  .">.  I      "  Siilijici  lo  /li'  i  .t-iyp/ions  in  fh'   Itt^t  iDunilinif 

M<l)iiii((lil  V.  MfKni/.li  ,'H)'S.  .S.  K.,  \tevtioii  tin    Ctiiiiiij/  Court  iIkiI/  Iihii   ori'ihin/  Jii- 

(S  K.  1%  (i.),  '2H'2.  '  rimlirtinii   lual  Imlil    /i/hih  in   nil  iirtimiH  i  x  run- 

\lrwtii  ir/ti  II  tin   ill  lit  (If  iliiiiiidji    iliiii  not  ixiiiil 

.'•III  It.  S.,  C.  lot,  0.  L\'.,  It.  S  --  .''■""■  )"ii"'i"'  <l"l/(ir'<,  rtiul  ill  mil  (if  ihlil  irlv  vi 


Sir  STATl TES,  NOVA  StOTIA, 


it  ii  not  li  11  tlinii  tii;  nil/  ilntlnn,  iiml  in  nil  (itlii  r 
III  t  mill  irlii  n    till  11(1111(11/1  y  iliiiiin  il  ilii  nut  i  jn  •  il 

to  Vlft.  (1S.MI,  f.  4,  s.  '.'00.   '"■"  /"'/"//•"/  ilulhu-i." 

I'liiiiititr  ciiiiinpt,    liy  jniiiinj,'   ii  L'liiini   of  .•*|(l 

•ttll  It.  S.,  c.  104, 0.  Ii\T.      (T.  Itli  It.  S.,    ,.       ,,     ,.      ,     ,,         .       ,*^..  '    , 

„..  ^'l\|'   tlif  (  ouiily  (  iiiiri    iiiiiMlu'tiiPii  iis  to   tlic 

(!.  i»4,  a.  3ao  ,. 

tollllfl'. 

•',1)///  (diKihiti    (II  i,/niiiiiil,   III/  irritini/   iimli  r        ||v///.,  y^  Simt,  •_>()  X.  S.  I!..  (S  I!,  .^c  (i.),  -Mil. 
//,.    IkiwI  (iJ  tin    (tiil,/,ior  {nut  ji,ii;iorlliiii  lo  he  \  S, i  ViltUUIHrU%\    •> 

/.//  ii-ni/  of  clmri/i   onli/),  of  mn/  dilit  or  otlnri  i  lUfiiiiiiiiu.i,  -. 

Iii/dl  chosi   ill  action,  of  irliirli  i .r/irni  iiotin    in 

ii-riliinj  "hall  linn  In  in  i/iren  to  tin  ih  htnr,  trm-        ''^1'  '*•  ^^  ^'»  '**•»»  ***'•  24  I"*!  'i.»  - 
fii,   or   other  /nrion    from    n-hom    thi    asiiijiior        l>y  s.  24  a  ik'fciui' as  tn  jiirisdiciiiin  nmst   lir 
irinild  hdi'i  Ik (11  (iititliil  to  rii'iiri  (ir  rlidiii  nirh     Jileiuli'il. 

ill  III  or  rliofi  in  itrlion,  shall  In  and  lie  dnnnil  •'^.  -•">.  " /'  ""  ■""/'  dr/'mn-  In'  /ilmilid,  tin 
Id  htiri  Inoi  (ffictiial  in  Inn-  {niliji  rt  to  all  iijiii-  Judi/i  ihall  jnrniil  tin  iiliiinlijl'  lo  reilnri  hii 
till  irhirli  iroiild  lidrc  In  in  i  ntitlcd  lo  firiorlti/  clulni  to  an  amoiiiil  n-ithin  tin  jiiriidirlion  of  tin- 
on  r  thr  rli/ht  of  the  anii/ini,  if  thli  ridi-  had  Court,  and  Ihi-  raim  shall  tin  n  ii/ion  jiromd; 
not  III  I II  ninili),  lo  pass  and  traiisfr  the  ln/al  and  he  may  ijirt  jiidi/ini  nt  for  tin  amonni  firori  n, 
rii/hf  to  siirh  dilit  or  rhnsi  in  art  ion  from  the  dati  al'hoin/h  it  In  lielon-  tin  lit;/  dollars" 
of  sin'h  •lotlri,  and  all  lii/al  and  oihi  r  n  innlli s  <  /'< »'  .Mi.'l)oiiiil(l  uiid  Ititiliiu,  .1.1.,  that,  iiflcr 
for  t hi  sann,  and  Ihi  /loin  r  to  i/in:  a  i/ood  dis-  :  the  tiling  of  a  pioa,  ohjeoting  to  tiio  cinniti'i- 
ihari/e  for  thi  nimi ,  irithoiil  tin  ronnirrenre.  of  ohiini  a.s  lieyoml  thi^  jurisiliction  of  tlii'  C'oiiil, 
thi  assii/nor. "  —  {hu\).  .lud.  Act,  LST.S,  soc.  '_'■').  tlio  County  Comt  .liidgu  lia.s  no  jiirisilictioii  to 
.siih-seu.  6.)  iinit'iid  it,  liy  ifdiRiiij,'  it  lo  an  itniount  within 

An  iissignci',  iindi'i'  tiiis  oi-dcr,  cannot  revive    tlie  jurisdiclion  nf  the  Court,  tiie  County  Court 
a  jtiilgnient  of  liis  assignor  in  his  own  name.  i  Act,  ')th  R.  .*>.,  c.   lO.'i,  s.  •_',"),  (inly  pei-Miitting 

Jost  V.  MiXi  ill  it  al.,  "JO  X.  ,S,  K.,  :  siuh  aniendinent  lo  lie  made  in  tiie  aliseiici'  of  a 

(S  H,  fc  (i.),  I.")!),  .  plea  to  the  jmisdielion. 

/iatis  V.  Craythorin,  7  1!.  .t  (!.,  -.'.'lO. 


Sue.  STATUTES,  NOVA  SCOTIA, 

18  Vict.  (1S5.5),  ('.  '2»,  8.  48. 


•itli  K.  S.,  r.  10.1,  s.  43  -(Procci'dinKS  In 


_..   „    ,_,         J...    ,  ,,  ...„  case  of  overholdinp — 

5th  It.  s.,  c.  104,  Appendix  n,  p.  1143-         „,^,^,..  ^^^  „„,  ^.^^^  .,  ^^, .  ^., 

(Certiticiite  of  .Judge  for  costs  in  ceitain  '|-|,^.  lUKdavit  on  which  the  application  was 
cases)  intended  to  be  made  was  served  separately  fioin 

In  an  action  for  lil.el,  the  jury  found  a  ver-  '  ti^.  nr.tice,  although  l.oth  were  served  in  due 
diet  in  favor  of  the  plaintiff  for. s.-.  damages,  and  ti,„e.  The  Statute  lia.l  the  words,  "with  the 
tlie  presiding  .Judge  thereupon  gave  a  certificate    notice." 

that    the    libel   complained   of   was   wilful   an.l  j      //eW,  ,.,u- McDon.ald,  C.  .J.,  and  Thompson, . I., 
malicious,  so  as  to  entitle  the  plaintiff  to  costs.  •  t„at  the   service  need   not    be    concurrent,    as 

//(/'/,  on  appeal,  that  as  the  evidence  clearly    "witii"  meant    "also  '" 
showed    malice,    the    certificate   was    properly        j^^^  ^,,,.  Weatherbe,  Rigby  and  Thompson, 

''''■'"•  Bar.s  V.  Wallace,  '20  N.  ,S.  R.,         !  fJ- /'"^t^he  irregularity,  if  any.  was  waived 

/t)  n    t.  II  \    rcM      "y  ^"^  defendant  readnig  an  arndavit  in  answer 
(8  K.  ct  (>.),  xkH.  \  .     .,  , 

I  to  tlie  one  so  served. 

See  1st  R.  S.,  C.  134,  S.  63.  i  Smith  v.  Smith,  5  R.  &  <;.,  42. 


ISMO 


STATrTKS,  NOVA  SCOTIA. 


1J4U 


r>ih  It.  s.,  V.  io.'>,  M.  r»*i.  55,  and  5(1  ~ 
,sv,  STATTKS,  >OVA  srOTIA, 
4:t  VIcl.  ilHHO,  <'. 'itNM.  51,  Ac. 

51  h  K.  S.,  r.  105,  M.  01  - 

//'/'/,  tliiit  liii  M|i|i(';il  lirs  III  I  he  Siiprcinu 
('iiiirt  fiiimllH'  (iiiiiity  Cuiiil  in  (mii"*  luisiiig 
lllldfl'  (lie  Ciuiiiilii  'rflil|H'riilli'i'  Ai't  nf  |S7S,  iiH 
iioiiii  wiiH  cxproHMly  givfii  Ky  tin'  Art,  «liii;li 
cri'iiicil  tlif  otrcnci' iiiid  ^'iivf  llif  m|i|ii'mI  Id  the 
Cciiiiity  ('(iiiit,  iililininili  tilt' iiliovc  sfctioii  j,'ivt's 
u  liitifiiil  a|)]icil  til  till'  Sii)iii'iiii'  ('(Uirt. 

Mrl),wn/>l  V.  MrCni^h,  ■".  1{.  &  <i.,  1  i 
V'""(   V.    11'.-//;,  7  H.  *  (i.,  '-'■». 

5th  It.  S.,r.  105,  M.  1N>- 


51  h  R.  N.,  I'.  107,  N.  0 

>"  4lll  II.  S.,  c.  U«l,  N.  ni. 

5lh  l{.  S.,  f.  107,  h.  H 

•V' '  itii  It.  s.,  €.  00,  N.  a:{. 

5tli  l(.  S.,  c.  107,  M.  |;( 

>'  STATITKS,  XOVA  SKITIA, 

IH  Viet.  (lH55i,  ('.  0,  A. '20. 

5lli  K.  S.,  f.  107,  n.  10 

A"  4(ll  K.  M.,  c.  00,  NH.  :<0  niHl  41. 

5tlllt.  S.,  c.  (Otf- 

(•luilgu,  •hlHticuM  of  tile  I'l'iici',  i)f   pi'i'siiii  nil 
jiowcicil  liy  law  t"  i'\iMi'isi'  jiiiliiiiil  fiiiiiti(iii>, 


/hi   Juiliii    mm/  iirtiii'   'in    ii/ii'iii/   an    siir/i  , 

.     '         ,  ,11,  •     '"''"K   latt'liiiyc'iK,    &o.,    ii"t  (li'^iiiiidllli'il    tluiii 

tirnit  (n  to  sininlii  or  iilhi  firim  ,  at  h<  siinll  sic  iil  , 

■    ,  .   ,     ■       ,  ■       '  ,     iK-'t""),')  — 

liiioii  ail'/  iiKitfi  r  fri'il  or  ar'iii"/  /;■/!</■'  Iiiiii,  al- \       ^      n      .i    ^    •!•  .•  i  .    •     i    i 

.  .       .  ...  '.       .  .  \illhlr,    that     thlM    st'iJtliill  (llH'h     lliit     llli'lllilt 


/lioii'/li   Ihi,  aiiioiiiif  ill  ilit/iiiii:  111(11/ III    li.ii  than',  . 

.■.,,.....»,..•; I     .J 1 1 II         I    .  II  I  ..     J 


j'orti/  iloUari ;  ami  in  iiirh  riiKi'  thi  iiintti  r  »hall  lie 
ifisliiirth)  utaliil  III/  him  for  Ihi  ojiiiiloii  of' the 
Court  of  Aji/iinl ;  ami  thi'  (i/i/iia/  shall  hi'  roil- 
ihirtiil  onthi-  saiiifi  /iriiirljili  s  IIS  hi  n  In  roiititiiiffl." 

Ill  a  case  wlifte  the  aiiimiiit  in  dispute  waft 
less  than  .'*40  the  .liid),'e  lielnw  eeititieil  to  the  I 
('c)iiit  tile  paiR'is  and  the  evidence  taken  hefol'e 
liini  and  .submitted  the  ijiieMtion  whether  upon 
the  evidence  so  sent  up.  the  plaiiititr  was  en- 
titled to  I'ecovtif  aj.'ainst  the  defendant. 

Ifilil,  that    111)  case  hud   lieen  stated  fur  the 
opiniiiii  of  the  ('i)urt. 

Ill  rtnun  v.  J/crriiiiaii,  "Jd  X.  S.  H., 
(H  K.  .V  <;.),  (W. 

Case  stated    under    section    .sent   liark    to  he 
.anieiided. 

/lirtraiii  v.  /{i  rrimiiii,  7  It.  \'  *'•..  'J4ti. 

See  STATUES,  \OVA  StOTIA, 

43  Vict.  (ISHO),  c.  2,  s.  107. 

5th  It.  S.,  c.  100.  ss.  15  and  54- 

>"  l8t  It.  S.,  c.  1»0,  ss.  7  and  31. 

5ih  It.  S.,  c.  too,  s.  30-  I 

sw-  4th  R.  8.,  c.  02,  8.  37. 


5th  R.  S.,  c.  107,  s.  3  - 

Si'i'  3rd  R.  S.,  c.  135,  s.  28. 

5th  It.  N.,  c.  107,  s.  5- 

(.Mhdavits,  kc,  sworn,  &c.,  aliroad)  — 

SVe  5th  R.  S.,  c.  104,  0.  XXXVI.,  R.  «. 


Kliii/  V.  77i«  Mnniriiinlitij  of  Kiii'jt, 

7  H.  &<;.,t)(S, 
5lhR.  S.,c.  112- 
Sir  lilMITATIOXS  OF  ACTIONS  AMI  SlITS. 

olh  R.  S.,  c.  11-',  s.  12  - 

iSve  4th  R.  S.,  c.  100,  N.  13. 

.)th  it.  S.,  c.  112,  s.  27- 

Si'e  4th  R.  S.,  c.  too,  s.  2S. 

5th  R.  S.,  c.  113,  8.  4  - 

Si-e  STATITES,  XOVA  SCOTIA, 

32  ilco.  2,  c.  II,  8.  0. 

5th  R.  S.,  c.  115,  s.  11- 

sve  3rd  It.  S.,  c.  140,  s.  11. 

5th  R.  S.,  c.  115,  s.  22- 

St'  4th  R.  S.,  c.  100,  s.  22. 

5th  It.  S.,  c.ll 7,8.3 - 

.S(.  4th  R.  S.,  c.  00,  8.  3. 

5th  R.  s.,  c.  IIS  -  (Relief  of  Indigent 
Debtors)— 

iSee  INSOLVENCY- 
STATUTES,  NOVA  SCOTIA, 
3  1-4  Cieo.  3  (1703),  c.  5. 


5th  R.  S.,  c.  107,  8.  5' 


5th  R.  S.,  c.  118,8.  18- 

"  Whem  aiii/  /iirsoii  shall  lit:  ilischari/iil  iimh r 
tht  jirurisioiis  of  this  chapter,  any  propirty  oinii  il 
hy   him  at  the  time  of  the  judi/mfiit,  or  snhti  ■ 
Sve  4th  R.  S.,  C.  Ott,  8.  30.  !  qneiitly  acquired,  ami  not  in  the  posnensioii   of  (i 


i.Hi  sri5F;rv. 

Ilium  tlih  liiilili  r,  ir'iihitiil  iiiilii-i,  mnij  ni  ri  ffhi'li  ^i        *i|h  It.  Nt,  Ci  145  ^ 

III   li  riiil  ii/iiiii  foi'  l/li  til  1)1,  iliiilur  I  J'l  rill  lull  imitil 

nil  I  III   inmi'  jiiilijiiti  III." 

'I'lui  iiiitliority  tliurii  givi'ii  In  Irvy  ii|ii>ii  |nii|i- 

city  tlifli  (iwiicd  <il'  milpscijUi'Mtly  iiri|iiiii'(l  liy  ' 
till'  ili'litiir',  is  I'li'iirly  imt  apiilicalilc  tn  ii  ciisc  of  : 
Miliiiilary   <liMi'hiir>;i'    liy    tlu'    |iliiintitr,   iiml    il 

Ulllllll    MI'CIII    tllllt,    t'VCll     llllllcl'    till'    Ml'Ctinll,    ]ll'll|l' 

I'lty    ill    the    |i()sH('MMii(ii    iif    a  Imim  jlih    liolili'i', 
witliHiit  imtict',  coiilil  lint  III'  hn-ji'd  ii|i<iii. 
t'ln^ir  V,  Jiiikiiii,  •-•(!  N.  S.  I!,,  (M  I!.  .V  (I.),  »!»», 


V"  »rrt  K.  H..r.  ll.'i. 


r>||l  K.  Sm  c.  I'2'*.  s.  I 

Sir  STATITKS.  >0V\  srOTFA, 

3lli  R.  M.,  t'.  1>2:>,  s.  1 1  - 

>  '  4lll  R.  S..  t'.  lOi,  s.  \. 


5th  R.  M.,  c.  I'ill 


Sir  4||i  it.  S.,  c.  I0.>. 


''"'  "•  '*•'<'•  "^'  «•  '-'^  -  .-,11,  U.S.,  A  DiM'iiilIx  A .  p.  '2 1    I  or  offNin's 

An  upiical  fi'iiin  a  (IucIhIdii  nf  ('iJimiiiMHioiicrs,    mj,ji„^t  {t^li,,,„i,i._. 
ii'fii.'-iiii,'  to  clisihai'Ki'  an    iii-nlviiit  di'litcir,  was  |  iSVc  AIM'KAL.  V..  --. 

takili  to  till'    Court    of    Si'.MMiolls    nll    tliL'    }^loUlul 

that    tli.Ti'  was  no  CMinty  Court  Judg.   in   tl.o        .j„  „^  ^^^  A|.|M'II(IIX  A.  \U  :W.  S.  I 
(  oiintv   wlii'ii'    the    lii'litor   was  contiiii'd.      I  hi'  .   ..      ,  .  .         • 

,    .    '     1  t      1  .    I        .1  I  >"  '2ihI  It.  N.«  1'.  S'2,  ».  4. 

.Instills  liiiMiig  ri'fiisi'd  to  liiiir  Uw  appeal  on 
the  iK'roiiiiil  timt  tlivy  liad  no  Jiirisdii'tion,  andiin 
onli'i'  having  lii't'ii  applied  for  to  lonijii'l  tlii'in 
to  do  so, 

llilil,  that  till' order  must  lie  made  alisoliite, 
the  appeal  having  lieun  pi'(i|ierly  taken. 

Ill  this  ciiHe  tlio  pi'oeesH  iMHUud  out  of  .hixtices 
Court. 

(^hiiiifi,  whether,  when  the  process  issued  out 
of  thu  Siipreine  or  ("onnty  Court,  the  a;ipeal 
would  not,  under  similar  eircumstanees  to  tlioso 
ahove,  lie  to  the  Special  Se.ssioiis, 

Arm^lrtiiiij  v.   Tn/mi/,  7  M-  fi  *•.,  H). 


STAYING  PIUKEEIUNOS 
•s     PBAtTKE. 


5tll  K.  S.,  c.  1'23 


S<'i'  4lll  it.  S.»  c.  103. 


SIPIIEME  (OIHT  OF  (AXADA- 

A|)peals  to— 

S     AITEAL,  \ 


olli  It.  S.,  f.  1>24,!4.  U  - 

<Vi  :ird  U.  S.,  c.  113,  hh.  5  und  10. 

ottill.  S.,  0.124,8.21- 

"A  jiiirrhn'or  (il  67(<  >•///'"<  «//(    of  n  til  esl/ile,' 
solil  inidrr  fill  ixirii/ioii  'is.innl  (iiiil  jnilijini  lit  ilii/i/ 
nrnnlid  for  om:  year,  ami  hariini  oh/aiiinl  a  dud  I 
from  the  Shrriff  of  said  pro/ti  rti/,  viinj  f>/'l>^!/  to 
II  ./iiililH  of  till  Court  out  of  irllirh  tin-  ixiriitiou  ^ 
i-isiiiil,  for  an  ordrr  iiix't  to  xhoir  caiixf   trhi/  a 
irrit  of  poxxptxion  shall  not  ixxne  to  put  Iht  xaid 
jiiirrhaxir  in  poxxpsxion."  j 

The  Court  of  Chancery  will  not  grant  to  the 
l)urclia.ser  under  foreclosure  a  writ  of  assist- 
ance to  turn  f)ul  a  party  who  has  been  long  in 
jxissessinn  of  the  premi.ses,  and  claims  title  hy 
possession,  and  who  has  not  been  made  defend- 
a:it  in  the  foreclosure  suit,  hut  will  remit  the 
purchaser  to  his  action  of  ejectment  at  common 
hiw. 

IVoodf.n  V.  Jiiixhen,  James,  4'J9.  ' 


SIKETY- 

1.  Ball  on  capias    CoiHlltion  In  bund  - 

Discharge  of  suretv — 

Vm  BAIL,  l< 

2.  Contract  of  snrclj  ship - 

I.     HILLS  AND  XOIKS  - 

See  BILLS  OF  E.VCHANOE  AM)  I'RO- 

MISSOBY  NOTES. 

n.   noxD- 

IIL     (iUARAXTKK- 


See  BOND. 
See  CONTRACT. 


3.    Contribution -Surety  held  not  liable 

for  contriliution  where  there  was  no  liability 
shown  on  wliicli  money  shrmld  Imve  been  paid 
by  the  co-surety. 

Cariifi/  V.  PhaUn,  4  R.  k  d.,  V2(i. 


I  .u:! 


TKNANT. 


i:>H 


I.    licniurrcr  to  (Icclarnllon  by  obllxrr 

on  Imriil  iinxl^'linl  In  I'liHIII'l't  JCM,  M'liii  lliiil  |iiliil 
<li'fi'lli|iillt'H   lU'lit,    iiM'irilluil. 

AV'-A '(«'/'  HdiiL'  V,  Iti'oifii,  'J  K,  \  (',,  ;i;t.'>.  I 
S.    DlNrhnrffr  and  relenxc  of  Hiirrly  by 

ileed  of  iiitiii|riunent 

Sn  AHSIliNMENT,  v..  .. 

0.    liability  nf  Niirrty    II.  L.  and  dcfrnd* 

ant,  lifiii^'  Imlcliticl  in  \',  in  llii'  «uin  of  l''.','J(K», 
ilcfcniliitit  pivi!  iKiti'H  fill'  liJM  mIiiik',  wliicli  lie 
paiit,  l(.  I..  iiHHiiiiit'il  thu  ii.iyiiii'iit  III'  I  III'  iidii-r 
liiilf,  mill  itHNJ),'  It'll  tn  \',  a  niiii'tgitj^)!  nl  ii  |>i'ii|i- 
tity  on  uliicli  111'  liiul  liiiil  (»iii  livtwufii  l'.'{,(i(Kl 
ami  1'4,<NI0.  In  t'lii'tlu'i'  Ncoiirity,  ii  liniiil  iliitcil 
.SOtli  iFiiiii',  IH44,  wuH  jiivcii  III  \'.,  I'xi'i'iitiil  )iy 
H.  I.,  iiini  ilcfi'iiiliint,  in  ilic  pciml  miiiii  uf 
t''.',(MKi.  II.  I,,  ilifil  ill  IN.M,  III)  piiyiiii'iit  having; 
lii'iii  inaili'  I'iiliir  of  priiii'lpitl  or  iiitt'i'cNt,  Imt 
U'aviiij,' llir  piopfiiy  yi\t'n  as  Mci'iiiiiy  in  j.'(i(pil 
onli'i'.  'I'll!'  prnpcity  liclil  as  srciiiity  having 
lii'i'ii  ii'iliii'i'il  in  valiU'  In  CKKI  nr  t'.VKi,  in  I'nn- 
xri|iit'in'i'  nf  II  tii'i',  mill  an  aclimi  haniiL!  Iiccii 
luniiu'lit  a^;ainxl  tlu' Miircty  fnrtju'  piiiuipai  snni, 
witli  ilpwai'ds  nf  t\\  ciilyllvt'  yi'aiM'  intcruwl, 

//'/'/,  that  "lintwilhslaiidilig  lliu  iiiicxanipiuil 
and  iiit'xpiii'alili'  iliiay,"  the  niircty  wiw  luit  ills- 
ihar:.'('il  frnm  iiayiiiriit  nf  llu'  priinipal  mini. 

ijiimri,  as  In  the  ilaiin  fnr  inU'i't'st. 

S' mill, ,  that  if  the  Hiirety  had  rei|iU!»tt'd  the 
I'l'i'ditnr  toHiic,  and  hud  ai'i'mnpaiiifd  his  ii'i|iieHt 
with  mi  nll't'i' nf  indiiiiiiity,  hi'  wnnld  have  lift'ii 
ri'li'iist'd  in  the  I'Vfiil  nf  llu,'  i.iL'ditnr  fniiieariiig 
t(l  x\w. 

I'd^l,  .  1. «!«/;///((  ,   V.    l.lttoil,    I    \.   S.   I).,  .'17."). 

«.    Liability  or  surety ->i.  A.  H.  was  ap- 

pninted  tri'aMiircr  fnr  ihi'  Cniintv  of  'I'lii't'iis,  mi 
till!  I.'iiii  nf  March,  ISIi'J,  >,'iviiig  a  lioiid  in  the 
.Slim  of  .'*4,(MH»,  witii  suretius,  fnr  tlie  perfonii- 
uiice  of  the  diiticH  of  his  nttice.  He  cniitinueil 
to  Imld  tiio  otfioo  iinlil  the  l.')tli  Martli,  IS(iS. 
Having'  failed  to  iiccniint  fnr  and  jiay  over  cer- 
tain inniieys  received  by  hiia  as  such  treasurer, 
after  the  first  year  for  wliicli  he  was  appointed 
to  the  otlice,  an  action  was  lirought  on  the  lioiid. 
Ihid,  that  tlie  office  of  Comity  'J'reasiirer., 
miller  Hcv.  .Stats.  (.'h'd  series),  c.  4.'>,  a.  I,  being 
an  annual  riffice,  the  liond  made  )>y  J.  A,  H. 
and  the  other  defendants,  as  liis  sureties,  did 
not  extend  beyond  the  tirst  j'ear  lie  held  that 
utfice,  and,  as  there  was  nothing  to  show  that 
there  was  any  defalcation  during  that  year, 
there  must  be  judgment  for  the  defendants. 
The  Atlorncy-Gen^rnl  v.  Hemeon  ff  al., 

1  N.  8.  D,,  485. 


N.    Liability  or  Nurely- 

I.     UN   III  1,1,^  AND  NOTKS- 

•sv.   BILLH  WF  F;.\(  IIAMiE  AND  i>KO. 

MINNOKY  \0TF;.S. 

Srr    BOI^I). 


II.    ON  ItoNKS 

III.  (IN  d'AKANlKKS 

IV.  AS  HAIL- 


>S,;t  CONTKAtT. 
S"   BAIL. 


TAXATIOX- 

I.     OK  liANKS- 


II.     OF  COSTS  -- 

III,    OK  siiii'Imm;  - 


S"   BANKS. 

Sf  costs'. 

»'  Sllil'IMXi,  1  '1 


I  TA.\ES  - 

Lien  Tor 
i  V'.   HALIFAX,  (ITV  OF,  u  ,S7- 

MOKTtiAilE,  lis. 


TELEOKAPII- 

I.     COXTHACT  liV— 

sv<  CONIRAtT,  -  >. 

TI.     PROOF  OF  TKLKCRAM- 

Srr  EVIDENCE,  IKI. 

III.     i.IAI'.ILITV    OF    TKLKOKAI'H    COM- 

I'AXV    FOR   TRAXSMITTIXO    LI- 

BFLLOU.S  MKS.SACK— 

See  DEFAMATION,  1-' 


TENANT. 

1.  Action  by   one   tenant    In    commoit 

against  another— One  tenant  in  coniinon  caii- 
not  sustain  an  action  of  trespass  qiiare  clau-inii 
j'reijU  against  his  co-tenant. 

Elliott  V.  Smith  ct  al.,  2  Thoin.,  S.SS, 

2.  One  tenant  in  common  cannot  sustain 

an  action   against   another,   except    the   iicliun 

given  by  .Stat,  of  Westminster  '2,  c.  2*2  (l.S  Kd.  I). 

Freeman  tt  al.  v.  Morton,  2  Thoin.,  .'540. 


i:.45 


TIME. 


IHii 


:i.    Anion  b)  tenant  In  common  aKUlniit 

(*o«tenaiit  I'luiutiir  IhhiikIiI  uii  nction  nt  truM'i 
t'ni'  1ii;;h  t'-.it  ami  pilt'il  liy  him,  t'oi'  hit  own  um', 
on  litiiil  fiiiiiioily  lK<lriiigin((  to  .lolin  Lytull,  wlio 
liml  iIIimI  iiiti'ittati',  Icikvjii^  llirt't!  Iu'Iin,  hiiiciiik 
wlimii  Nvi'i'i^  till'  |iliuiitiH"M  wifi'iuicl  iiiiu  iif  tliti 
•  It't'i'iiiliiiitK.  A  f<i.'iU'iiil  verilii-'t  for  tin-  full 
valiu'  iif  lilt'  lii^M  u'lii  fciuiiil  fur  llio  plnlntiH', 
uiiilcr  tliu  ilii'(!i;tiiiii  iif  tilt!  .Imlgf. 

//■Itl,  tliiil  I  he  vficlict  must  1h^  Nt't  UMick'  on 
till'  ;;i'(iiiiiil  (if  iiii«(liri.Htiiiii,  Mil  fur  uh  it  iitl'f(;li'(l 
till'  iliunajji'N  U8  vvuii  t'l't^ai'iliiiji;  tliii  tlufviiiluiitM  iik 
\Miiii;{'i|ii('i'M,  till'  |iliiiiitiM'  wiiM  only  cntitlt'il  to 
oiii'  iliinl, 

■liiiiR'H,  il.,  iliiliitaiiii . 

tjinnri,  W'liutliur  the  {iluiiitiir  having!  iidinit- 
It'll  II  ti'iiaiicy  ill  uiimiiinii  with  ilt'fcniliuit,  tlu' 
liitliT  roiililiiviiil  liiiiiKt'lf  of  thill  ili'fi'liri!  wilhoiil 
11  (ili'ii. 

/tritiaiii  V.  J'nrbiii  al.,  ;t  II.  iV  ('.,  5S1I. 


/*'('  llliitii,  il. — TimantH  III  I'ommoii  t'liiiiiot  xiu' 
i*i!|>ai'ati!ly  for  a  ti'<'N|iar<M  to  tlii'ir  liiiiil,  lint  imiIi 
oiiu  may,  i  think,  Mt'|iaiuti'ly  clt'ffiicl  hi<  |)cmni'-- 
Nioii,  uiitl  do  luiy  uct  wliicli  ull  inijjlil  ilo  ton 
Jointly  ill  iK'fi'niH!  of  that  poKNt'MHioii,  Hhiii't  of 
niAiiitaiiiiii)j  an  action  in  ii'Mptit  of  it, 

AVio;/  V.  Mdi/lnrii/,  I  'I'lioiii.,  CJiicl  HM.),  iNtl. 

II.    Where  a  part}  conveyN  n  portion  of 

IiIh  IiuhI  to  iinotlii'i',  witlioiil  ik'sci  ihinK  it  l>y 
int!tt!N  uiiil  lioiinils,  gnintor  ainl  ^'raiitt'L'  ln'coiiic 
toiiiuit*  ill  common. 

.l/rA'/./  V.  MrM,/,  Coiiiraii,  ;«. 

I'i.    Writ  of  partition   The  Common  Law 

\M'il  of  piU'titioii  I'NtciiilM  to  joint  tl'llallt^4  ami 
it'iiantH  in  lomnion,  in  thix  I'roviiico. 

hiimii    \.  Mr K' null,  .TailiL'S,  .'l'2S. 


4.     Construction   of  will  to  determine 

whi'tlivr  liuiu>HuiarU':i  took  as  luiiuiitH  in  coiniiioii  | 
oi  joint  tenants, 

SVr    Will. 

.1.    Nonjoinder  of  tenant  In  common  as  | 

plaintiff  in  action  for  uae  and  occupation— 
Mesne  protits— 

Svr  I'R.iCTICE,  IS.J. 


TEMIKK  - 

•N"  BILLS  \iV  E\CH.V>UE  AM)  PKO- 
MISSOKY  NOTES,  VI.,  II 
PLEAIUNU.  I'«). 


<l.    Nonjoinder  of  parlle.s  entitled  m  ten* 

ant.s  in  common,  in  ejectment— 

Vr  c  E.IECT.MEXT,  -'o. 

4.    Ordinary  tenant  - 

S,!v.  LANDLORD  AND  TENANT. 

!<.    Rights  or  one  tenant  In  common,  In 

ejectment —A  plaintitf  in  (.'jcutmont,  ])idvt'd  to 
he  entitled  a.s  ii  tenant  in  coinnion,  ami  with  a 
(k'lincil  inturuijt  a»  such,  lias  a  right  to  recover, 
Muliject  to  the  rights  of  the  other  toimnts  or 
their  legal  re[)reseiitatives,  against  a  .stranger, 
altiiough  »uch  plaintitr  claims  a  right  of  posses- 
sion to  an  entirety. 

A  purchaser  ai  a  .Shcrifl's  sale  may  appoint  a 
third  person  to  receive  the  deed. 

Scott  V.  McNutt  et  nl.,  '2  N.  .S.  1).,  118. 

0.    Tenant  in  common  ousting  bis  co- 
tenant— 

Sec  EJECTMENT,  50. 

10.    Tenant  In  common —Rights  of— One 

tenant  in  common  may  prostrate  and  justify 
prostration  of  any  building  erected  by  a  stran- 
ger on  the  land  of  which  he  is  one  of  several 
joint  owners. 


TIME. 

1.  An  Action  was  lirought  by  the  plaln- 

titl'  bank  a.>i  assigneu,  under  the  Insolvent  Aot 
of  1H7."),  of  tlu^  liaiik  of  [..iveriiool,  against  the 
defendant,  for  a  lall  of  1(M»  per  cent,  on  his 
stock  in  the  said  Hank  of  Liveip"i/1.  The  only 
evidence  of  the  making  of  the  call  was  a  notice 
jiublished  in  the  (la-.'lti  of  the  ITtli  of  .January, 
and  following  issues,  as  well  as  in  the  local 
papers  datetl  the  lOth  of  .January,  by  which  a 
number  of  calls  weie  made,  payable  at  inter- 
vals. 

Held,  that  the  calls  could  not  all  be  legally 
made  al  one  time,  and  none  could  legally  be 
made  but  within  ten  days  after  the  expiration 
of  six  months  from  the  suspension  of  payment 
by  the  bank.  And  further,  that  in  computing 
the  statutory  intervals  between  calls,  the  time 
must  be  reckoned  exclusively  of  the  day  on 
which  the  previous  call  was  payable. 
Bank  of  Nova  Scotia  v.  Fo^-hen,  4  R.  &  G.,  29.'). 

2.  Enlargement  Of  time  Tor  doing  Act - 
<See  ELECTION  LAW,  14,  18,  21,  23, 24  &  25- 

PBACTICE,  276  &  277. 


1547 


TRESPASS. 


lo4S 


3.  Mnety  days  and  three  months  not 

equivalent  terms  —  'I'lie  Statute  euiiMiuj,'  tlie 
City  Ctiunc'il  to  inako  a  l>y-la\v  iirovidus  that 
iniprisimiiieiit  fiu'  uinoty  days  may  lie  aiinuxeil 
ti)  tiie  Ijreach  tlun't'of.  'I'lie  l)y-la\v  against 
Sunday  trading  providecl  for  an  iinpi'isonuient 
of  tliruo  months. 

//>/'/,  that  llm  I>y-la\v  '.vas  void,  a'ld  .i  con- 
viction tiiereunder  was  i|uashed  accordingly. 
Thi-  City  of  Hull/ax  v.  CIk-^ui,  6  K.  &  (J.,  oil; 

OC.  L.  T.,,-)4-2. 

4.  Notice  of  motion— Length  of  time  to 

be  served  —  Computation  of —  The  notice  of 
motion  for  an  ordci'  setting  aside  a  re[ilevin 
order,  was  served  at  ()..S(I  p.  ni.,  Friday,  for  the 
following  Tuesday.  An  appeal  from  the  order 
mad"  on  such  notice  was  allowed. 

MrDwiuld.  V.  McKur.o:,  20  X.  S.  R., 

(8R.  &t;.), -JS-J; 
SC.  L.  T.,  4.-)0. 

.1.    Time  Tor  presentation,  service  and 

trial  of  election  petition— 

Stt  ELEtTION  L.iW. 

6.    Where  the  plaintiff  marlied  a  default 

on  the  twelfth  day  after  tiie  service  of  a  writ, 
with  the  particulars  indorsed  thereon,  and 
entered  up  judgment  on  the  fourteenth  day 
thereafter, 

Hiflil,  that  the  default  was  not  a  nullity,  and 
even  if  it  were,  the  plaintiff  was  not  entitled  to 
sign  judgment  on  the  fourteenth  day. 

Writ  served,  Nov.  "JOth  ;  Default  marked, 
Dec.  '2nd  ;  Judgment  entered,  Dec.  4th. 

Ma-iltri  v.  PhiniHi/,  2  Thom.,  4l29. 


3.  Order  In  Council  Uh  January,  IHUI, 

not  to  trade  between  two  enemies'  ports,  applies 
only  to  vessels,  taken   l)etween  the    two  purls 
not  to  those  merely  intending  so  to  trade. 

Tin  Exjinsi,  Stewart,  ■2\}2. 

4.  Trade  of  neutrals- Letter  of  Dr.  f  roke 

respecting  trade  of  neutrals  with  the  C'ljlonies 
of  the  enemy. 

.Stewart,  Ap/n mlix,  ji.  X  I'll. 

5.  Trader,  deflnition  of  under  Insolvent 

Act,  1875— 

Sec  INSOLVEXCY,  m. 


THVDE  AND  TRADE  MARK. 

1.  Breach  of  agreement  not  to  manufac- 
ture or  sell  an  article — 

See  MEDICINE  AND  MEDICAL  PRAC- 
TITIONER, -'. 

2.  Infringement  of  trade  mark  — The 

imitation  of  la)iels  and  wrappers  whereby  the 
public  are  misled  and  the  plaintiff  injured  will 
be  restraineil  as  a  fraud  upon  him,  and  though 
an  imitation  will  be  deemed  colorable,  if  it  l)e 
such  that  a  careful  inspection  is  recpiired  to  dis- 
tinguish it,  yet  a  Court  will  not  interfere  when 
ordinary  attention  would  enable  a  purchaser  to 
discriminate.  It  is  not  enough  that  a  careless, 
inattentive  or  illiterate  purchaser  might  be  de- 
ceived by  the  resemblance. 

JohmoH  tt  id.  V.  Pavr,  R.  E.  D.,  98. 


TREATY. 

1.  American-American vesselsniay supply 

tishing  vessels  with  necessaries,  and  enter  an 
uninhabited  port  in  the  course  of  such  trading, 
under  the  American  treaty. 

The  Famt ,  Stewart.  !l."). 

2.  The  Aiiierican  treaty  was  a  complete 

dissolution  of  all  connection  between  the  i'viiig 

of  Creat  ihitain  and  his  former  subjects  in  tiie 

Colonies. 

Thi   /'roriilnicr,  Stewait,  ISIi. 

3.  Hnedish,  1661  —  Passport  not   being 

according  to  the  form  there  prescribed,  a  vessel 
restored,  but  claimants  condemned  in  costs. 

The  Stockholm,  Stewart,  .'JT'l. 


4.    Passport  under— 


Stewart,  ,')41. 


TRESPASS. 
1.    Action  for  trespass  involving  title  to 

land,    tiie   sole   (luestion    between    the    parties 
[  lieing  as  to  the  division  line  that  separated  tlieir 

respective  lots,      'i'lie  verdict  being  for  plaintifl', 
'  a  rule  was  taken  out  under  tiie  .Statute  to  set  it 

aside,  but  on  argument, 

I      //(/'/,  tiiat  the  verdict  ought  not  to  be  dis- 
I  tur))ed. 
I  Camphell  v.  McKinnon,  3  N.  S.  ]).,  321.'. 

i    2.    Costs— Certiflcate  matter  of  discretion 

I  —Tiie  gianting  of  a  certificate  tliat  an  action  of 
trespass  was  brought  to  try  a  right  so  us  to  en- 
title the  plaintiff  to  costs,  is  a,  matter  for  the 
discretion  of  the  presiding  Judge,  with  which 

j  the  Court  will  not  interfere. 

I  McGillivray  v.  Mchaac,  James,  ISo. 


1541)  TRESPASS.  looO 

3.  Damages  In- AsseSKlIient  of— Plaintiff  .Subseiiuently,  at  themiuest  of  lli^i(.■rl•^lit^)l•s.tllo 
(•llliIllt•(l  cliiiim^'cs  for  trt'siKis.sf.s  Loiniiiitteil  liy  iinsigiR'u  iilloui'il  liitii  to  ii'>im\i.'  jinssession  of 
ilufoii(liiiil'.s  iiitlle  on  liis  liuidii,  anil  (liiiniigos  llie  gooils  iiuil  to  svW  tlioni  for  tlii'ir  lieni'lit. 
sii.stiiiiieil  l>y  leiison  of  the  ovurtlow  of  water  on  Xo  deed  of  coniiio>ition  was  entered  into,  noi' 
plaintitr'ii  land,  caused  l>y  a  dani  elected  l>y  was  there  any  tiansfei'  of  the  goods  to  \V.  M. 
ilefeudant.  'I'lie  jiny  found  in  favor  of  plaintitl'  ('.,  nor  any  discharge  given  iiini.  Afttir  they 
on  liotii  grounds  of  his  claim,  assessing  the  dam-  had  iieen  some  time  in  his  possession,  the  ile- 
ages  generally  at  .'?.")0.  fendant  as  City  Mainhal,  acting  under  an  exe- 

As  to  the  liist  claim,  the  t'ouit  weio  of  culion  at  the  suit  of  '1'.  J.  \V.,  one  of  the 
opinion  that  the  evidence  sustained  tiie  plain-  creditors,  seized  and  sohl  a  portion  of  the  goods, 
tills  allegation  ;  hut  as  the  damages  were  The  assignee  thereupon  sued  lum  for  tresjjass. 
assessed  genei-ally,  and  thcif  was  some  doul)t  //>/(/,  that  the  scizme  and  sale  were  illegal, 
whether  the  liahility  of  the  defendant  for  the  the  goods  lieing  still  in  the  possession  of  the 
overflow  of  the  water  was  estaMished,  the  tind-  assignee,  and  that  defendant  was  liaMe  in  dam- 
ing  of  the  jury  was  set  aside,  and  a  new  trial  j  ages. 

was  granle.i  with  costs.  |  Jlmn /j  v.  CoN,,;  .'i  N.  S.  1).,  1(11. 

Cain.  V.  L'ltlmau,  -20  N.  S.  K.,  (8  R.  kC-.),  14S  ;  ! 

8  ( .  L.  1.,  ;{7:{.      10.    (liovernnient  Kallways  Act -Acts  1S81, 

■  c.  25,  s.  109,  Dom, — Who  employees  within  — 

4.  Damages— Where  the  Jury,  In  an  ac-  ■S'-<  KAILWAYS,  !i. 

tion  of  trespass,  finmd  for  tlie  plainlill'  on  the  I 

ground  of  adverse  possession,  the  .lefence  being        H.     Highway  -  DcdiCJltlon    Of-  EvIdcnce 
a  documentary  title,  the  Court    refused  to  set  i  *■<>  **uPPO''t—  IV  irvrTWkv 

aside  a  verdict  for  one  hundred  dollars  as  ex-  '  ^''"  J>JLMT10>,  l.'J. 

cessive,   although   defendant    hacl  a  goo<l  docu-  : 

mentary  title,  and  had  convince,!  himself  l,efore  '      ^'^'     Highway  -  Drainage  -  Dedication    Of 

.onnnitting  the  trespass  that  the  lau.l  was  his.    water  -  course  -^  Public    Easeme..t  -  Adverse 

,,  .  ,,    ;,.      I     ,1.     ,  p    V,  t^    .)-„     enjoyment  — Prescription — Action  of   trespass 

\  against  a  Surveyor  of   Higliways  for  cutting  a 
,       „,  ,  _  »     n   11  it        ,        ditch  through  i)laiiit  ill's  land  to  carry  oti'  walei' 

5.  Distress  for  rent-Failure  to  give  no-  ,         ,     ,    ,  ,,     ,„ 

™                       t    •     i.-        1.  .•      1     »          1  '"""   tlie   iiighway,  and   tor  tilling   up  aiiotlier 

tice— Trespasser  ab  initio— I )eteiidant  made  ,.    ,      .        ,       ,•  ,                  ,      ,       , 

,.                         ,   .     .,ri.            ^,      ,.  11      1        1    .  ditch     111    the    highway,    and    lliereliy    ciiusuil' 

distress  uiKiii  plaintitl  for  rent  lawfully  due,  but  „                   ,   .     .^,..    ,      ,       /\ 

'.       ,  .        1       ,.        ,       ,                  ..   .,  water  to  flow  over  plaintiri  s  land.     Defence;  — 

ilid   not  give  lum  the    live  days    notice  ot    the  ,,,      ,       .          ,              ,,,,          , 

.      ,  ,            1     1-  ..     •      1              1     11     i_..  ..   .  lo  tlie  first  charge:    1  hat  the  toriner  owin'i-  of 

sale  of  the  goods  distrained  prescribed  l)y. Statute.  ,..,.•11,,.                          .     . 

,-,,,,                  ^                      1    •    -^^           1  i)laintill  s  land  helped  to  construct  the  iiiuiuvav, 

Htlil,  that  he  was  a  trespasser  ab  initio,  and  '                                '       .         ,,,.,. 

,.  , ,    .     ,  and  agreed  to  the  cutting  of  the  ditch  for  carrv- 

lialde  in  damages.  %    .                  <•.,,■   1               ,          , 

.,        ,.            „     ,        ,.  V-    ^,    ,,     .JO-  ">«  off  the  water  from  the  highway;  that  tlio 

(Jorndiuf  v.  Burton,  .\y.  >.  \),,  Mi.  ,.°  ,     ,     ,    ,                         .         ,        '' 

ditch    hail    been    in    use   tor    that    purpose    for 

.Vee,  «/.>o,  4th  K.  S.,  C.  101,  S.  6.    tliirty-seven  years;  tiiat  occasional  obstructions, 


«.    Easement  —  Constructive  notice  of— 


during  that  time,  had  been  removed  by  the  Sur- 

^      ,  ,  .  .   .      ,.  veyor  for  tiie  time  being;  that  the  ditch  follows 

Deed  creating  easement  requires  registration—    ^,  ,  r      .1     u         c  r 

"  ID  jlig  natural  course   for  the  now  of  water  from 

See  KEUISTKATION,  13.    tlie  highway;  and  that  the  cutting  complained 

of   was   a    clearing   out    of   obstructions   which 

I.    Easement  -  RIglit  of  way -Excess-    plaintiff  ha,l  i.laccd  in  the  ditch  a  sliort  time 

Removal  of  gate -Proof  of  certificate  of  reg-  ln.f.ue.     The  defence  to  the  second  comjjlaint 

istrar —                                                              _  \vas  that  the  other  ditch  was  a  ditch  alongside 

Se<!  KEdilSTKATION,  :«.  j,,^.  highway,  too  deep  lo  be  safe,  and  that  the 

,,       _                .     „           _                ^         1.1  t.  defendant,  as  such  surveyor,  partially  tilled  it 

8.    Easement    Iser  of  a  way  to  which  a  ,     ,    ,         ,.  ,    ,       ,.  ,.    .     i    , 

,  111.  X        iE   •      i    i      "!•-  i'**  "^  "i"'  ii  light  to  do.     At   the  trial  the 

party   has  no  legal   right,    not   sufiieient  to    ,'  ,    ,    ,    ,  1  .■    ,  r 

'    ...,     .      ,  r  ,    .        ,.  .ludge  excluded  the  evnleiice  ot  defence  to  the 

entitle  to  damages  for  an  obstruction  —  ,.     "  ,  .  ,  ,.  ,      ,  .     ,. 

hrst  complaint  and  a  verdict,  under  his  direc- 

See  DEED,  •2-2  tion,  passed  for  jilaintiff. 

//</(/,  1st.     That  the    long    use  of   tlie  ditch 

ft.     Goods  —  Trespass  to  —  Assignee  In  In-  through    plaintiff's    land    was    evidence     from 

solvency — Power  of,  over  goods  of  trespasser  whi'h  a  jury  might  infer  a  dedication  by  deed, 

— Trespass — W.  M.  C.  becoming  insolvent,  his  though  there  was  evidence  of  an  assent  to  such 

estate  under  the  provisions  of  the  Insolvent  Act  use  more  than  twenty  years  ago.     2nd.     That 

was  placed  in  the  hands  of  the  official  assignee,  the  defendant  had  a  right,  as  such  surveyor,  to 


1551 


TRESPASS. 


1 


'Oi 


uliwe   or  alUT   llie  ditclie.s  iilong    lliu  liigliwiiy,  the  (lefemlant  ilid  in  iiHscitioii  of   ii  right  "f  Wiiy 

U8  a  priviite  propiiL'tcir  of  huul  in  the  saniu  situ-  over  tlie  ground  on  wliich  it  luid  heen  erecteil. 

iition  might.     Venliit  fvt  a.side  accordingly.  Tlie  evidence  was  concUi.sive  as  to  the  fact  of  ii 

'Pile  following  jii-oposit ions  were  atlirnied  :—  right  of  way  having  lieen  enjoyed  liy  the  puMic 

'I'liat  as   to  the  water  not   flowing  in  cletincit  r>ver  the  land  in  iiuestion  for  a  jieiioil  of  ii]iwaiil> 

channels    the    flowing    does    not    warrant    the  of  forty  years, 
presnniption  of  agrant.  //'''/,    Wilkin.'^,   .1.,   </m.«  ?i/»h;/,    that    it    ui^ 

That  as  the  owner  of    the  high   land   cannot  tliereliy   proved  a  ))nlilic  way  common  to  all  the 

collect   sucli   waters    in   drains   and    precipitate  King's   sulijects,    ami   although    defendant  hid 

them  on  the  land  of  another  |)roprietor  helow,  relied  upon  pleas  of  a  privnie  way  instead  of  ;i 

a  grant  may  lie  presumed  where  this  has  Iteen  pulilic  highway,  still  his  defence  was  sulistan 

4h)ne  as  of  right  for  twenty  years,  and  this  not-  tially  good, 
withstanding   the   ])rescription    Act,   c.    lOd  of 
H.  S.,  4th  series,  s.  "28. 

Thai  evidence  that  use  liegan  prior  to  twenty        lij,     JustlliCatlOll  IIIMlCr  Warrant— I  >efend- 

years  hy  consent  is  merely  evidence  against  the  ant  liroke  into  and  entered   plaintitl's  premises. 


Couixtii  V.  U/i/aiir,  'J  N.  .S.  ]).,  i;i. 


presumption    of   a  grant,  and    ma, 


lie  met  liy    not  lieing  witiiin  a  mile  of  any  mine  or  miniiii; 


of  right,  etc.,  for  twenty  years. 

That   the  consent  liy  paiol  to   the  estahlish- 


counter-evidence  that  the  use  was  afterwards  as    works,    and   seized   and  ilestroyed   intoyieating 

liipiors  found  thereon.  Plaintiff  lirought  an 
action  of  trespass,  and  defendant  justitied  undei 
ment  of  an  artificial  course  made  more  than  a  warrant  commanding  him  to  seize  all  the 
twenty  years  ago,  is  nf)t  conclusive  that  the  liipiors  founi.1  or  to  lie  found  hy  him  on  tiie 
suliseiiuent  twenty  years'  use  was  not  hy  grant    premises.     Verdict  for  defendant  set  aside. 

Jfiail  V.  Putnam,  1  H.  &  (i..  Hi. 

1«.    Leave  and  license  -Evidence  of,  can- 

not   be  given  under  plea  in  denial  and  justi- 
fication— 

>t'  iI.\LIFAX,  CITY  OF,  U 

II.    Ji'ewly  discovered  evidence  of  title 


liccause  such  a  right  could  not  he  c<infcrred  liy 
pared  alone. 

That  a  dedication  to  the  jiublic  of  an  ease- 
ment may  he  inferred  from  the  like  circuin- 
stances  as  warrant  the  infeience  of  a  grant  in 
the  case  of  a  private  person  enjoying  such 
easement. 

That    the  surface  and  ditches  of   a  highway 


may  he  altered  without  lialiilily  to  an  action  l>y    Application  was  made  to  .set  aside  a  verdict  Uw 


the  adjacent  proprietors. 

Ilarritou  v.  //(trn\oii,  4  R.  kS:  (!.,  .'WH. 


13.    jKstlllcatlon -Dedication  of  streets - 

Defendants  removed  plainlill's  porch  as  a  nui- 
sance, and  justitied  as  lieing  a  committee  of  the 
City  Council,  duly  authorized  to  remove  any- 
thing whicli  was  a  nuisance,  eneroachn\ent,  or 
annoyance  on  any  of  the  streets.  The  evidence 
showed  that  the  p<irch  which  encioached  upon 
the  puhlic  street  several  feet  had  been  in  exist- 
ence, just  as  it  was  before  being  ])ulled  down, 
for  a  period  of  sixty  years.  There  was  no 
evidence  as  to  the  origin  or  dedication  of  the 
street,  and  it  did  not  appear  whether  the  porch 
or  the  street  were  the  more  ancient. 

Hflil,  th"*-  '.n  the  alisence  of  evidence  as  to 
the  origii'.il  laying  out  of  the  street,  its  dedica- 
tion to  the  public  should  be  taken  as  subject  to  i  ticulars  of  alleged  trespasses. 


defendant  in  an  action  for  trespass  to  lands,  ami 
for  a  new  trial  on  the  ground  of  newly  di.scov- 
cred  evidence  favorable  to  the  plaintifl'.  At  the 
trial,  the  point  submitted  to  the  jury  was 
whether  the  defendant  occupied  as  tenant  of  W. 
or  in  assertion  of  his  own  right.  The  issms 
submitted  to  the  jury  on  this  i)oint  were  found 
in  favor  of  defendant.  The  newly  discovercil 
evidence  went  to  show  that  defendant  on  seveial 
occasions  had  admitted  the  title  of  \V.  and  il 
believed  by  tiie  jury  would  i)e  conclusive  on  tlic 
point  upon  which  the  case  turned. 

A  new  trial  was  ordered. 

Unrlawl  v.  Gtivry,  L'O  X.  S.  K.,  (S  R.  .S:  (i.),  \. 

IS.    Particulars  of  trespassci—Action  dis- 

mis.sei',  '  r  non-compliance  or  evasive  c<impliiiinc 
with  an  ..  der  reejuiring  plaintifl"  to  furnish  piu  - 


Fairbanks  v.  Ilartuhorne,  (i  R.  &  <i.,  41I.S: 
«C.  L.  T.,  .■)40. 


the  encroachment  in  (piestion,  and  that  the  ver-  | 
diet  for  defemlants  should  be  set  aside. 

Hwjarty  v.  Pryor  ii  al.,  '2  N.  S.  D.,  532.  | 

19.    Partnership  -  One    partner   cannot 

14.  Justification  of  right  of  way— Plea  of  enter  on  his  partner's  land  and  remove  a  build 
private  way,  proof  of  public  —  Trespass  for  ing,  though  that  building  he  merely  on  blocks, 
removing  a  dwelling  house  of  plaintift''8,  which  '  and  has  been  built  by  partneiship  funds,  and 


1 553 


TRESPASS. 


155-1. 


intfiidud  for  a,  store  to  curry  on  the  partnerBhip  I 

biiHinesa, 

McKiitzk  V.  McKur.ie,  1  Thoin.,  ('iiul  Kd.).  198.  i 

20.  Party   fence  —  Llc<^  ...a  —  Defendant ' 

built  a  Htoiie  wiill  lietwei'ii  iii.s  liind  and  tliat  of  1 
the  pluintiir,  of  which  tlireu  fuet  at  the  bottom  ' 
and  one  foot  nine  inches  at  the  top  were  on  i 
phiintiff's  property.  At  tiie  time  tlie  wall  was  . 
erected  plaintiff  said  to  defendant's  Imilder: 
"  You 're  hnilding  on  my  land."  He  said  fur- j 
tlier  tliat  he  had  no  objection,  but,  "I  caution  ; 
you  that  in  the  case  of  my  selling,  the  purchaser  \ 
may  put  you  to  trouble."'  ! 

Iltid,  that  '.his  was  a  ijualitied    license   jus-  • 
tifying  the  erection  of  the  wall,  but  going  no 
further. 

PiUrt  V.  Firrkir,  '.i  N.  S.  1).,  (57. 

21.  Party  fence -PlaintifT  and  defendant 

were  adjoining  proprietors,  tlieir  respective  lots 
being  divided  by  an  ordinary  |iost  and  board 
fence.  The  fence  was  blown  down  and  defend- 
ant employed  persons  to  build  a  new  one,  which 
diflFered  from  the  old  one  in  that  the  posts  had 
"shoes."  The  excavations  necessary  for  the 
posts  and  "shoes"  were  made  liy  defeniliuit 
partly  on  his  own  land  and  partly  on  plaintitl's 
land. 

Held,  that  defendant  liad  no  rigiit  to  excavate 
or  build  upon  the  plaintitl's  land. 

Hunt,,-  V.  Iloiini,  •_>  X.  S.  D.,  U.S. 

22.  Pleadings     Declaration  for  several 

trespasses,  including  the  placing  of  rubbish  on 
the  soil.     I'lea,  right  of  way. 

Hdd,  on  demurrer,  that  the  plea  shoidd  have 
stated  the  particular  tresj)ass  intended  to  be 
justified. 

7"o/<i(j  et  ill.  V.  O'Xiil,  .lames,  OO. 

23.  Pleading   in   trespass  —  Denial  of 

pIainti£P's  possession — To  an  action  of  trespass 
to  land,  defendant  pleaded,  among  other  pleas, 
that  the  land  was  not  plaintiff's,  as  alleged. 
The  verdict  was  for  plaintitf. 

Held,  per  McDonald,  C.  .1.,  and  Weatherbe, 
J.,  that  the  plaintiff's  possession  was  put  in 
issue  by  the  plea. 

Per  McDonald  and  James,  JJ.,  that  the  pcs- 
eession  should  have  been  specifically  denied,  and 
the  plea  was  not  sufficient. 

The  Court  being  e<iually  divided  on  the  rule 
for  new  trial,  the  rule  dropped. 

Embree  v.  Xoiles,  3  R.  &  G.,  82. 

24.  Pleading  —  Way  of  necessity  ~  When 

a  tenant  by  the  courtesy  of  one  lot,  who  is  the 
owner  of  an  adjoining  lot,  pleads  a  way  of 
52 


necessity  in  himself,  there  being  u  convenient 
access  by  the  lot  of  which  he  is  owner, 

Htid,  that  such  plea  will  not  be  a  good  de- 
fence. The  plea  need  state  no  more  than  that 
it  is  a  way  of  necessity. 

lUttchj'uiil  V.  Kiniuar,  2  Thorn.,  407. 

25.  Plea  of  right  of  way  —  Evidence  of 

way  of  necessity  not  admissible  under— It  is 
not  essentially  necessary  that  the  writ  ip  tres- 
j>as8  should  descril)e  all  the  lM>undaries  of  the 
]ilaintiff 's  land.  Under  a  plea  of  right  of  way, 
where  evidence  was  received  of  way  of  necessity, 
it  is  too  late  to  object  after  tiie  trial  that  such 
evidence  was  not  receivable. 

Tad  V.  lieifn,  2  Thorn.,  4'2«. 

26.  Possession,  adverse  —  Occupation  — 

The  .St-atute  of  Limitations  should  not  be  so 
construed  as  to  protect  or  be  a  means  of  fraud. 

The  plaintiff  exchanged  mud  flats  not  capable 
of  actual  occupation  for  sedge  banku  bearing 
grass,  into  which  plaintiff  entered  and  retained 
possession  for  twenty-five  years,  no  conveyances 
lieing  executed  on  either  side,  and  subsequently, 
as  tlie  mud  flats  became  productive  by  accretion, 
tlie  jtlaintifT  entereil  and  took  the  gra.ss  from 
tlieiii  also,  at  the  same  time  claiming  title  by 
possession  to  tlie  sedge  lianks. 

//(/'/,  that  if  the  exchange  was  completed  by 
a  mutual  surrender  of  the  lands,  there  was 
mutual  adverse  possession,  but  if  not,  the  par- 
ties held  jiermissively  from  each  other,  and  the 
Statute  of  Limitations  could  not  aj)ply. 

Hdd,  (ilxo,  that  tlie  fact  of  such  surrender 
being  made  is  a  question  for  the  jury. 

forty fh  v.  Griffin,  James,  241. 

27.  Possession,  adverse -Defendant's  tes- 
tator, in  IfS.'Jl,  put  plaintiffs  in  possession  of 
certain  premises,  without  any  deed.  In  1838 
tliev  executed  a  deed  thereof  to  him  in  trust  for 
their  daughter.  In  1859  he  devised  to  defend- 
ant all  his  farm,  Ac,  without  excepting  the 
portion  given  to  plaintiffs.  Plaintiffs  continued 
in  undisturbed  possession  until  1870,  when  de- 
fendant committed  the  trespfiss  which  was  the 
subject  of  the  present  action.  He  justified 
under  a  plea  of  title. 

Held,  that  plaintiffs,  having  had  possession 
for  twenty  years  after  1839,  had  acquired  a 
title,  and  could  maintain  their  action. 

Bowe7i  et  III.  V.  Shears,  2  N.  S.  D.,  507. 

28.  Possession,  adverse  -  Evidence  of 

continuous  user— The  plaintiff  claimed  a  right 
of  way  over  land  of  the  defendant  from  a 
meadow  lying  in  the  rear  of  defendant's  land 


1555 


TRESPASS. 


1550 


to  tlic  liigliwiiy.     Hu  tcstitieil  on  tlu;  trial  that  //</«/,  that  phiinlitt'  hiul    not  Nhowii  hiuIi  mi 

T.   (I()iirl(,'y,    till'   plfvioUM  owiilt  of   liis  lot   of  uclvcisf  ami  t'xulu.sive  piwsfs.sioii  uh  to  avail  Inm 

laiiil,    enjoyed    an    oasi'inent     for    tiiiity    yi'aiH  against  t lie  dociiiufntaiy  title  of  tliu  (Uifondunts 

adversely  to  the  party  from  whom  the  defend-  and  the  acts  done  thereunder, 

ant  derived  title,  Imt   he  produced  no  deeil  and  McDonall,  (".  ,],,  ilis.s,  iih'ii;/, 


did  not  show  that  the  easement,  if  such  theie 
was,  had  lieeli  conveyed  to  him.  He  also 
claimed  under  a  deed  of  the  meadow  from  the 
executors  of  T.  (Jourley,  in  ISIil  ;  hut  as  there 
was  no  evidence  except  that  of  the  plainlill" 
himself  of  a  contimious  user  liy  (iourlcy  for 
twenty  years,  and  tiie  eviileiice  taken  altogether 
negatived  such  a  user,  it  was  lieM  that  neither 
'r.  (iomley  nor  his  executors  could  convey  any 
right  of  way  t.>  the  plaintitl',  and  that  the  ver-  i 
ilict  fo"  tiie  defendant  must  lie  sustained. 

Tii/'i"r  V.  Caiii/ilx//,  'J  K.  .t  C,  (is. 


i!/i:irurf  V.    Watijih  it  «/.,  7  U.  &  <  1.,  l.'iT  ; 
7  V.  L.  v.,  •JOT. 

;il.    Possession -A  party  who  enters  upon 

and  takes  [lossession  of  land  to  wliicli  he  has  a 
right,  may  maintain  trespass  again.st  a  person 
who,  heing  in  possession  at  the  time  of  entry, 
wrongfully  continues  upon  the  land. 

MiJ)oiiu/(l  V.  Suthi  liuml,  James,  .'iO.'S. 


;t'i.    Possession    EITeet  of,  as  against  a 

party  not  showing  title     In  an  action  for  trc.>- 

m       P0SSe.SSi0n,     adverse        Wliere     tlie  l>''^-<  t"  I'H"'.  I'l'i'i'titl  relied  <m  a  grant  from  the 

fatiier  of  the  defendant  ha.l  a  l.lock  of  wilder-  *''"^^»  I"  "•  '^  '•""veyancc  from   H.  to  M.,  and 

ness  land,  to  wlii.^h  he  had  no  title,  surveyed  in  '^  conveyance  from   .M.   to  plaintill'.     The  grant 

lS4(t.    Imt   hnilt    no   hons.^,    except   a   h.mse   for  I"  "■'  '■•••'^''  '"  '">iiicction  with  a  plan  annexe.', 

lundKiing.  made  no  fences  and  onlv  cleared  ten  ''"-''fto,  covered  the  locus,  hut  in  the  sul.se.iuciit 

acres,    and   afterwards,    in    IS4.-.,   conveyed   the  conveyance  i>o  mention  of  the  plan  was  made, 

land  l.v  a  r.^corded  deed  to  Ids  two  sons,  oiu;  of  although  the  descri])tion  was  the  .same  as  that 

wliom'was   the   .lefcndant,  wiio  ploughed  .some,  "'  ''"■  fe''''l"t-     I'lii'l't'rt's  evidence  showe<l  that 

Imt    not   much,   ui.on   it,  and  the  land  .so  eon-  M.,  I"  whom  the  property  was  conveyed  l.y  the 

vcvcd  was  afterwards  grante.l  by  the  Crown  in  '"'^'i'li'l  giuntec,  erected  a  fence  including  the 

two  h.tshv grants  dated  lS,-.4  and  LSU.Stoa  party  '"^■"■'''    iu..l  cultivated    the   land,  ami    that    the 

from  wiio'm   the   i.lainlitT  derived  title,  an.l   to  '  Po««e«8i<>i>  had  Keen  continued  l.y  plaintift' and 

Iheplaintiiniimself  rcsi.ectivcly,  A.A/,  that   the  '"«  tenant  down   to  the  commciu'emcnt  of   llic 

possession  and   the  deed  of  the   defendant  diil  '"■ction. 
not  debar  the  Crown  from  so  granting  the  land 


w  ithout  otlice  fomiil. 

.V,/(('//(  v.  Mi/>i>iirilil,  1  Old.,  ■-'74,  and  <;il,hoii« 
V.  Kililaij,  distingtdshed  and  reviewed. 

Co-//(i  V.  Chn/j/ii/l,  1  li.  it  C,  4(». 

30.    Possession,  adverse     Evidence     In 

lS-_'4,  S.  W.  au'l  .M.  W.  olitained  a  warranty 
deed  of  land  known  as  .Shipyard  Island,  and 
Went  into  possession  under  it.  Tn  i.S.'JS  tiiey 
leased  tlie  Island  to  I'.,  who  went  into  posses- 
sion and  occupied  until  IS.'lIt  or  1S4(). 

I'laintiff  had  no  documentary  title,  Imt  relied 
on  continuous  acts  of  ownership  from  IS.VJ  down 
to  the  time  of  action  l)rought  (October,  ISS.")). 
It  was  proved  that  defendants  had  exercised 
occasional  acts  of  ownership  din'iiig  the  same 
period  ;  that  ten  years  Itefore  action  brought, 
plaintiff  agreed  \\  ith  one  of  the  defendants  to 
take  care  of  the  Island  for  him  and  to  keep  tres- 
passers off';  that  when  charged  with  liaving 
connnitted  acts  of  trespass,  lie  denied  having 
done  so,  and  said  that  the  acts  complained  of 
were  committed  by  other  persons,  and  that  on 
one  occasion,  when  logs  were  cut,  plaintiff 
denicil  having  cut  them,  and  the  logs  were 
removed  by  one  of  the  defendants. 


J/'/'/,    that    this    evidence    was    suliiciciil   as 
against  the  defemlant,  who  showed  no  title. 
McDonahl,  C.  d.,  (//•.«»///(;/. 

FnllirtOH  v.  /lnin<li;ii  if  id.,  '2(1  N.  .S.  R,, 
(8  H.  j;-  (i.),  18-Ji  !S  C.  L.  T.,  ;Cs. 

'i'i.    Possession  essential  to  maintenance 

of  action —Claim  of  title  -  Adverse  possession 
-  Conventional  line— Ratification  —  Plaimitl' 
brought  tresjiass  seeking  to  recover  damages  for 
acts  allegeil  to  have  been  committed  tiy  defeml- 
ant on  land  of  the  plaintiff.  It  appeared  that 
plaintiff  had  never  had  actual  or  constructive 
pos.session  of  the  land  in  (juestion,  but,  tiiat  it 
had  l)een  in  pos.session  of  defendant  under  a 
claim  of  title  for  a  period  of  fifteen  or  sixteen 
years. 

Held,  that  jdaintitf  coulil  not  recover. 

Weatherbe,  iJ.,  dUienttd,  on  the  grouiul  llint 
plaintiff  had  proved  a  documentary  title,  ami 
that  nothing  short  of  the  statutory  adver.se  con- 
tinuous possession  for  twenty  years  could  defeat 
his  title. 

Defendant,  as  part  of  his  defence,  relied  upon 
a  conventional  line  alleged  to  have  been  estab- 
lished with  L.,  a  former  proprietor.  It  appear- 
ed that  L.,  liad  no  title  at  the  time,  but  that 


1557 


TRESPASS. 


155S 


lifter  obtuining  title,  slie  nititicil  and  ailoptcil  tlic 
line. 

Ildd,  jiir  Wualherlie,  .1. — Tlint  tlie  alleged 
line  was  insutlieieiit  ;  (a),  lieeause  it  did  not 
appear  that  the  real  lioundary  was  ineapal)lu  of 
lieing  a.wertained  ;  (h),  lieeause  L.  had  no  inter- 
est at  the  time  it  was  estahlished  ;  (c),  liecause 
it  was  not  alleged  tliat  the  ratilication  took 
plaee  on  the  ground,  or  that  any  particular  line 
was  mentioned  ;  (d),  because  L.  was  illiteiate 
and  was  unaware  of  the  spt'citiu  nature  of  tiie 
desirijjtion  of  her  houndaiy  ;  (<  ),  i)ecause  tlie 
alleged  agreement  ajipeared  to  have  l)een  a 
compromise  whereby  one  piece  of  land  was  ex- 
changed foi'  an  eipiivalent  jiiece  on  another 
part  of  tlie  lot. 

MooiHi/  V.  Mcliiioxh,  7  K.  &  <i.,  41!»; 
7  C  L.  T.,  436. 

AtKrmed  on  aiipeal  to  the  .'^upreme  Court  of 
Canada. 

14  .S.  C.  U.,  740; 
7  C.  L.  T.,  ."WU. 

34.  PusHCssion  —  Evidence  of-  In  jiii  ac- 
tion of  trespass  to  land  l>y  cutting  and  removing 
tindier,  the  amount  of  damages  having  been 
agreed  upon,  the  Judge  presiding  being  of  the 
opinion  that  tlieie  was  no  otlier  ciue.stion  of  fact 
to  lie  submitted  to  the  jury,  directed  judgment 
to  be  entered  in  the  plaintill's"  favor  for  the 
amount  of  damages  agreed  upon,  and  refused  to 
^ul)nlit  to  the  jury  certain  ([uestions  of  fact 
which  he  was  reijuesleil  ))y  tlie  counsel  for  de- 
fendant to  submit. 

//(/(/,  there  being  uncontradicted  evidence  of 
possession  in  the  plaintill's' favor,  that  tlie  course 
[pursued  liy  the  .ludge  was  juslilied  under  the 
terms  of  5th  11.  .'^.,  c.  104,  s.  •_'(). 

Wliere  (juestions  of  fact  are  submitted  to  the 
jury  by  the  presiding  judge,  whicii  amply  cover 
all  the  issues  raised  by  the  pleadings,  and  leave 
nothing  necessary  to  be  determined  afterwards 
to  iiettle  the  issues  of  fact  involved  in  tiiC  plead- 
ings, he  may  decline  to  jiul  any  further 
(luestions. 

JJenBami  ft  al.  v.  Ilill  vl  al., 

•JON.  S.  U.,  (S  R.  &(!.),  4S-2. 

;t.i.     Possession  in   plaintifT— Dcrendnnt 

breaking  open  building,  &c.  -To  suceeed  in 
his  defence,  must  prove  right  of  property — 
111  an  action  for  entering  plaiiitilf 's  land,  break- 
ing open  a  barn,  and  destroying  contents, 
jilaintifF  was  clearly  proved  to  have  been  in  pos- 
session at  the  time  of  the  commission  of  the 
trespass  complained  of.  A  verdict  having  been 
founil  for  plaintit)',  and  iv  rule  obtained  to  set  the 
verdict  aside, 


llrbl,  tliat  plaintitf  being  proved  to  be  in 
possession,  it  was  incumbent  upon  defendant  to 
show  by  cleii-  and  positive  evidence,  that  the 
right  of  property  was  in  him,  and  he  having 
failed  to  do  so,  the  verdict  e<iuld  not  be  disturbed. 
Ulilani:  v.  C'ltltr  et  al.,  2  N.  .S.  ]).,  o.VJ. 


30.  Po.ssession,  joint  -Where  tlie  defend- 
ant in  trespass  pleaded  in  justification  an  exclu- 
sive possession,  and  the  evidence  showed  a  joint 
possession  with  the  plaintitl',  and  there  was  a 
verdict  for  the  plaintitl',  the  Court  refused  to 
disturb  the  verdict. 

Mouri:  V.  //iiniiaii,'2  'riiom.,  •J!M. 


37.    Possession    Limitations,  Statute  of — 

Judgment  entered  for  defendant,  evidence  of 
—  Plaintiff's  title  to  locus  insufficient,  and 
evidence  of  continuous  possession  by  defend- 
ant sufficient  — 

Set  EVIDEXtE,  4. 


38.  Possession  Occasional  acts  of  owner- 
ship—Accretion -Justiticationas  Commission- 
er of  Sewers  — riaintill'  brought  action  against 
defendant  for  cutting  a  trench  acro.ss  his  laiul  to 
carry  otf  water  from  dyked  land  to  the  Avon 
lliver.  Defendant  justified  as  a  Commissioner 
of  Sewers,  liut  the  justilication  broke  down  as  it 
was  founil  that  the  trench  was  new  work,  and 
no  agreement  had  been  come  to  as  required  by 
4th  K.  .S.,  c.  40,  s.  4. 

Plaintiff's  possession,  on  whicii  alone  he  could 
rely,  consisted  of  cutting  every  year  by  himself 
for  live  years,  and   by  ins  devisor  for  eight  or 

'  nine  years  j)revionsly,  tiie  wild  grass  growing  on 
the  land  in  (|Uestion,  between  the  ebb  and  tlow 
of  the  tide,  the  land  claimed  liy  him  having  been 
marked  otf  liy  slakes,  one  of  which  was  perma- 
nent, and  the  others  replaced  from  time  to  time 
as  removed  liy  the  tide.  Tiie  Judge  directed  the 
jury  tiial  the  plaintitl "s  ])ossessioii  was  not  in  his 
judgment  sucli  as  to  sujiport  trespass,  and  left 

i  to  them  twoijuestions  relating  to  the  defendant's 
justitication,  which  Llie  jury  answered  in  the 
allirmative,  linding  a  verdict  for  plaintitl'. 

J]i/(l  that  the  plaintiff's  possessiim  was  suf- 
ticient  to  support  trespass,  that  the  verdict 
settled  the  issue  as  to  possession  in  favor  of 
plaintiff',  and  that  if  not  the  defendant  could  not 
ask  for  a  new  trial  in  order  that  the  jury  should 
pass  upon  this  (picstion,  the  only  grounds  in  the 
rule  being  that  the  verdict  was  against  law,  and 
that   the  plaintiff'   had  no  title  by  deed  to  the 

I  laud  to  which  that  claimed  was  an  accretion. 

I  Hurahani  v.  Daviaon,  5  R.  &  t!.,  388. 


1559 


TRESPASS. 


lafiO 


On  appeal  to  tht  Suprtme  Court  of  Canada, 

Hdd,  that  there  was  evidence  cstablitihing  a 
I'ootinuoua  exclusive  posHcssion  by  the  phiintifT, 
for  many  years,  ijuite  Butticient  to  enable  him  to 
maintain  an  action  of  trespass  against  a  wrong- 
doer who  mteifered  with  that  possession. 

The  question  of  "  new  work  "  was  purely  a 
(juestion  of  fact  for  the  jury,  and  they  having 
found  in  the  affirmative,  their  finding  should 
not  be  reversed.  The  intention  of  the  Legisla- 
ture, in  this  Act,  would  appear  to  be  to  empower 
the  Commissioners  of  Sewers  to  act  in  making 
ordinary  repairs,  or  in  any  sudden  emer'"'  y, 
without  consultation  with  or  the  consent  fpf  the 
proprietors,  but  that  these  proprietors  should 
not  be  taxed  for  the  construction  of  any  new- 
work  not  immediately  essential  to  the  preserva- 
tion or  interests  of  common  property,  without 
their  consent  to  such  work  being  first  obtained. 

As  the  defendant  entered  upon  the  plaintiff's 
property  to  perform  this  work  without  the  sanc- 
tion of  the  proprietors  first  obtained,  he  could  j 
not  justify  the  trespass  imder  his  commission.      ] 

Davison  v.  Burnhum,  27th  Filiruary,  ISS."),       j 

Cas.  Digest,  515. 

39.  Possession  of  wilderness  lands— The 

occasional  cutting  of  wood  and  poles  on  wilder- 
ness land  is  not  such  a  possession  as  will  enable 
a  party  to  maintain  trespass. 

lUirnhUl  tt  al  v.  Peppa.rd,  3  N,  .S.  D.,  491.  ' 

40.  Possession  or  title  necessary  to  niain< 

tain — Plaintiff,  who  brought  an  action  of  trss- 
pass  against  defendant,  claimed  title  to  a  iot  of 
land  by  a  deeil  dated  March,  1873,  from  the 
husband  of  Eliz.  M.,  deceased,  to  whom,  as  one 
of  the  heirs  of  J.  M.,  the  lot  in  question  had  : 
been  set  off  by  division  under  the  Probate  Act, 
and  from  others  of  the  heirs  of  J.  M.  He  also 
produced  a  deed  from  another  of  the  heirs  dated 
March,  1874.  The  papers  in  the  proceedings 
for  the  division  were  defective,  two  of  the  heirs 
not  being  served  with  notice,  and  defendant, 
who  had  been  in  continuous  possession  of  the  lot 
from  1872,  living  in  a  house  on  the  front  (though 
the  rear  was  not  surveyed  or  fenced),  afterwards 
obtained  a  deed  from  one  of  the  heirs  of  J.  M 
dated  July,  1873. 

Held,  that  plaintiff,  having  neither  title  nor 
possession,  could  not  sustain  his  verdict  taken 

by  consent. 

Mott  V.  Fttnor,  1  R.  &  C,  387. 

41.  PoBsesBlon— Proof  of,  in  absence  of 

documentary  title — Plaintiffs  claiming  a  cer- 
tain lot  of  land  under  grant  from  the  Crown, 
passed  during  the  past  century,  brought  an 


'  action  of  trespass  against  defendant  for  cutting 

I  tiniber  on  the  land. 

1  At  the  trial,  plaintiffs  produced  their  original 
grant,  and  tendered  as  evidence  to  identify  tiie 
locus  with  their  lot,  ancient  copies  of  the  allot- 

1  ment  book  and  plan  of  the  township  in  which 
the  lands  lay,  which  had  often  been  received  in 

,  evidence  in  otiier  suits,  the  originals  having  lieen 
lost.  These  copies  were  received  by  the  Judge 
who  tried  the  cause  (McCully,  J.),  without 
proof  of  a  search  for  the  originals. 

Jlchl,  that  they  had  been  improperly  received 

I  in  evidence. 

I      The  Judge  directed  the  jury  that   plaintiffs 

1  had  proved  a  documentary  title. 

!      IIM,  that   under   the  above  circumstances, 

I  there  had  been  a  misdirection  on  that  point. 

I      Defendant  pleaded,  first,  that  tiie  laud  is  not 

'  the  land  of  tlie  plaintiffs,  and,  second,  tiuil  tiie 

I  land  is  the  land  of   the  defendant.     Plaintiffs 

I  gave   no  proofs  of  possession   of  the  land   in 

i  question. 

Held,  that  under  the  jileadings,  there  l)ciug 

i  no  plea  especially  denying  plaintiffs'  possession, 
the  plaintiffs  were  relieved  of  the  i)ur(len  of 
proving  possession.  Defendant  gave  evidence 
that  he  had  ciiopped  on  tiie  locus  ever  since 
aVxni!  1836,  at  first  as  a  trespasser,  built  a  log- 
ging camp  on  it  about  two  years  later,  which  he 
occupied  in  winter  ;  had  one  side  line  run  out 
by  a  surveyor  iu  1841  ;  built  a  saw  mill  in  18.")(t, 
which,  with  the  adjoining  yard,  continued  to  be 
used  for  upwards  of  twenty  years  ;  had  three 
lines  run  out  by  a  surveyor  in  1852,  one  of  these 
lines  being  that  run  out  in  1841.  Evidence  was 
also  given  of  three  parties  having  gone  upon  and 
cultivated  portions  of  the  land  under  defendant 
within  twenty  years,  but  two  of  their  clearings 
had  been  abandoned  liefore  action. 

Held,  that  in  the  absence  of  any  documentary 
title,  defendant  had  not  proved  possession  to  give 
him  title  under  the  Statute  of  LimitJitions  to 
any  portion  of  the  land,  except  the  mill  site  and 
mill  yard,  and  that  as  the  alleged  trespasses 
were  committed  on  other  portions  of  the  land 
and  the  misdirection,  etc.,  were  not  upf>n  mate- 
rial points,  the  verdict  for  plaintiffs  must  stand. 
Church  Wardens  of  Falmouth  v.  Vaughan, 

2R.  &C.,438. 

42.  Possession— Putting  in  issue  fact  of— 

In  an  action  of  trespass,  where  the  only  pleas 
were— 1st.  That  defendant  did  not  enter  plain- 
tiff's close ;  2nd.  That  the  land  and  soil  were 
not  the  land  and  soil  of  plaintiff,  but  the  land 
of  defendant ;  3rd.  Leave  and  license ;  the  de- 
fendant will  be  precluded  from  proving  that  the 
plaintiff  has  not  the  possession. 

Grotto  V.  Farish,  2  Thom.,  29L 


1561 


TRESPASS. 


1562 


48.    PoHseHHion,  title  by-In  an  action  of 

trt-Hpass,  plaintiff,  apart  from  liia  evidence  of 
title,  relied  on  posseHsion  for  a  long  period  f)f 
years,  the  acta  of  poHsesHion  consisting  of  the 
construction  of  a  system  of  canals  (several  of 
them  inside  of  the  lino  duinted  hy  defendant), 
connected  on  the  one  side  with  lakes,  and  on 
the  other  with  u  Bay  of  Fundy  river,  l)y  which 
the  lands  in  controversy  were  flooded  twice  a  | 
day,  and  the  surface  of  the  lantl  eventually  j 
raised,  tinis  converting  the  lai\d  from  a  "use- 
less swamp  which  could  only  he  crossed  hy 
a  team  when  frozen,  to  firm,  productive  and 
valuahle  land." 

Held,  tiiat  plaintiff  was  entitled  to  recover 
under  this  evidence. 

McCiilly  v.  lilair,  3  R.  &  (i.,  4,S.->. 


44.    Possession — Title — PlalntllT  brought 

an  action  against  defendant  for  trespassing  upon 
his  land  and  premises,  and  at  the  trial  proved  a 
clear  documentary  title,  as  well  as  title  hy  un- 
interrupted possession  for  a  long  series  of  years. 
Defendant  pleaded  title  in  iiimself  as  well  as  a 
rigiit  of  way  for  the  j)ul)lic  over  the  land,  hut 
failed  to  support  eitiier  plea.  Tiie  jury  having 
found  a  verdict  for  plaintif}', 

Jlild,  that  it  coulil  not  be  disturbed. 

The.rian  e(  al.  v.  Bf/liveux,  .'1  N.  S.  1).,  450. 


under  whom  lie  claimed,  to  entitle  him  to  re- 
cover. 

Shey  v.  JUcHej^y,  1  N.  S.  1).,  35(). 

46.    Possession  —  Trespass  to  lands  — 

Plaintiff  went  into  possession  of  land,  on  which 
was  a  dwelling  house  and  store  hoth  in  one  budd- 
ing, under  an  agreement  to  purchase  the  property. 
The  agreement  contained  a  condition  that  in  case 
the  payment  of  one  thousand  dollars  should  not 
be  made,  |>laintitf  would  yield  up  ({uiet  anil 
peaceable  possession  to  defendants.  Some 
months  after  plaintitl''s  failure  to  pay  the  first 
instalment,  defemlants  served  a  notice  upon  him 
re(juiring  him  to  deliver  up  tiie  possession  and 
annulling  the  agreement.  Tiiey  sold  the  proper- 
ty to  one  Collins,  wiio,  in  plaintiff's  ab.sencc, 
removed  the  lock  from  the  store  and  took 
possession,  after  which  OjUins,  with  a  clerk  of 
defendants,  acting  under  liis  autliority,  stopped 
up  the  chimney  of  tiie  dwelling.  I'laintiff's 
family  removed  to  ancighimring  iiouse,  to  which 
his  furniture  was  sent  liy  t'ollins.  Tliere  was 
no  assault  or  breach  of  tiie  peace,  and  defend- 
ant's said  clerk  swore,  uncontradicted,  that  the 
furniture  was  carefully  removed.  A  verdict 
having  been  found  for  plaintiff  in  an  action  for 
trespass  to  the  lanil,  and  trespass  and  trover  for 
the  goods,  the  Court  set  it  aside  and  granted  a 
new  trial. 

Smitk  v.  Troop  el  al.,  '_»  R.  &  (i.,  4S;J. 


45.    Possession— Title -Plaintiff  was  the 

lessee  of  K.,  who  was  owner  of  a  piece  of  marsh 
land  on  the  Falmouth  side  of  the  Avon  River, 
near  Windsor.  Defendant  was  proprietor  of  a 
piece  of  marsh  known  as  the  Oxbow,  on  the  op- 
posite or  Windsor  side.  About  the  year  IS.ST, 
the  I  iver  suddenly  changed  its  course  by  making 
a  breach  through  tlie  Oxbow,  carrying  it  away 
with  the  exception  of  two  acres,  and  forming  a 
new  channel  on  the  Windsor  side.  In  conse- 
(^uence  of  this  change  a  mud  flat  in  the  centre  of 
the  river  rapidly  filled  up  until  it  became  a 
large  Iwdy  of  new  marsh.  The  land  in  dispute, 
a  portion  of  this  new  formation,  was  claimed  by 
plaintiff  on  the  ground  that  the  strip  of  marsh, 
occupied  by  him  previous  to  the  change,  «as 
bounded  by  a  certain  creek,  which  creek,  he 
contended,  should  still  be  considered,  in  all  its 
windings  and  courses,  lengthened  as  it  was,  as 
the  boundary  of  the  newly  created  marsh.  The 
defendant  claimed  the  lands  as  an  accretion  to 
the  remaining  portion  of  the  Oxlww,  contending 
that  he  was  entitled  to  the  accretion,  formed  to 
the  middle  of  the  river,  as  it  ran  before  the 
eruption  or  change  of  course  took  place. 

Htld,  plaintiff  having  failed  to  prove  posses- 
sion, that  no  sufficient  title  was  shown  in  K., 


47.     Possession  to  support  trespass  — 

Plaintiff  and  defendant  entered  upon  land  under 
claims  of  title  derived  from  the  same  ancestor, 
and  exercised  similar  acts  of  ownership.  .Some 
years  after  his  entry  plaintiEf  received  a  deed  of 

'  the  land  from  an  uncle  who,  though  he  chiimed 
the  whole,  was  entitled  at  most  to  one-lialf. 
After  the  making  of  the  deed,  and  down  to  the 
time  of  bringing  the  action,  both  parties  con- 

'  tinned  to  exercise  acts  of  ownership  as  before. 

I  Htld,  Wilkins,  J.,  diKsentimj,  that  plaintiff 
had  not  such  an  exclusive  possession  of  the  lot 

j  as  entitled  him  to  l)riiig  trespass  against  de- 
fendant. 

Taylor  v.  Archibald,  ^  N.  .S.  D.,  '233. 

I 

i    48.   Possession  under  agreement— Refusal 

to  accept  particular  deed  tendered  does  not 
make  party  in  possession  under  agreement  to 
purchase  a  trespasser. 

Leirer  tt  al,  v.  McCulloch,  I  R.  &  C.,  31j. 

49.    Possession— Where  a  boundary  was 

I  a  straight  line  and  was  to  terminate  in  the  water 

of  a   harbor,  the   fencing  by   that  line  to   tlie 

:  water's   edge,    and   possession   of  the   land    so 

I  fenced  are  sufficient  to  give   possession  of  the 


1663 


TRESPASS. 


ir)C4 


water  up  to  whore  the  lino  was  to  terminate  anil 
within  tiu-  houndary  (>))taine(l  ))y  continuing  the 
line  into  the  water  in  tiie  direction  of  the  line 
on  the  land. 

McLxiH  V.  Jwohs,  1  Tlioni.,  (IhI  Kil,),  0  ; 

C'nil  K.l,),  !). 

50.  Possesftlon    Where  after  delivery  of  a 

(lei'd  the  grantor  rciiiaiiiH  in  pfisNCHMion,  tres- 
pass will  not  lie  aj,'ainst  liini  or  hix  tenant  for 
cutting  trees  previous  to  actual  entry  of  grantee. 
Lnnijilh   V.  /.(tiiijilh  el  <il.,  I  Tlioin., 

(1st  Kd.),  1.10; 

C-'nd  l-M.),  l.->!>.  I 

51.  Possession -Where  plnlntiflT  brought 

trespass  for  cutting  wood  on  land, 

//(/'/,  that  he  must  show  an  actual  possession,  ' 
or  that  the  land  is  within  the    liouiidarics  de- 
scrihed  in  his  docuincntaiy  title. 

Ciumron  v.  }[i'l>onal<l,  'J  Thorn.,  'J4(l. 

5'i.     Publlo    highway  -  Siibstttiitlon  - 

Where  land  was  used  as  a  way  in  tiic  early  set- 
tlement of  the  country,  hut  a  regular  public 
highway  was  afterwards  sulistituted  for  it,  ivntl 
from  that  time,  being  tifty  years  before  action 
brought,  tile  old  way  was  disused, 

//'A/,  an  abandonment  of  the  ancient  right  f)f 
way,  if  any,  and  tliat  the  owner  of  the  soil  over 
which  the  way  passcil  held  it  exemjit  from  the 
public  riglit  (wiiatever  the  extent  of  it  may 
have  been)  that  iiad  previously  burthened  it. 

The  plea  of  a  highway  is  not  tlivisible,  and  ; 
nnist  be  made  out  us  pleaded.  1 

Semli/i ,  to  constitute  a  public  highway  by 
user,  there  must  be  an  intention,  express  or 
imj)lied,  of  dedication  to  tiie  public,  on  the  part 
of  the  owner  who  permits  such  use. 

Lianj  v.  S(iiiii(ltr»  tt  al.,  1  Old.,  17.  ; 

53.  Reversioner  — The  person  having  a 

reversionary  interest  in  a  wharf  miiy  sustain  an 
action  against  the  person  obstructing  the  en- 
trance thereto. 

Crcamir  v.  Hoijan,  '2  Thorn.,  23". 

54.  Tenants  in  common  -  Ouster — Action 

by  one  against  another — I'laintiH'  and  defend- 
ant were  tenants  in  common  of  a  certain  dwelling 
house,  and  defendant  took  ofT  the  doors  and 
carried  them  away,  broke  down  partitions  and 
did  other  injuries  to  the  property,  whereupon 
plaintiff  brought  an  action  for  trespass  against 
him.  Defendant  pleaded  that  plaintiff  was  not 
in  possession  of  the  house,  but  that  he  was  and 
is  in  sole  possession.  The  jury  negatived  this 
plea. 
Held,  that  the  action   could  be  maintained, 


and  that  the  acts  nf  defendant  amounting  to  an 

ouster  there  should  be  judgment  for  the  plaintilt'. 

Mooi-L  V.  Moon,  ',i  N.  S.  1).,  t;«i. 

55.    Title  —  Evidence  of—  Mensurements 

and  distances  —  I'laintitT  had  to  prove  title. 
Flis  place  of  beginning  wan  identified,  and  his 
description  in  the  grant  then  read  ;  running 
south  iV2  chains  to  a  large  pine  tree  nuirkeil  ".I. 
(J.,"  and  thence  west,  etc.  To  reach  the  locus 
the  line  shoidd  be  extended  about  fifty  chiiins 
more.  To  that  increased  distance,  the  survey- 
or's line  on  the  ground  extended,  but  there  was 
no  pine  tree  so  nsarkeil  either  at  the  distance  ex- 
])i'essed  in  the  description,  or  at  the  end  of  the 
suiveyor's  line.  At  tlie  latter  point,  however,  a 
■fy/jv/ci  tree  was  maiked  "  H.  ('<."  anil  ".1.(1,' 
The  plan  attached  to  the  grant  ri'presentcd  the 
lot  as  a  diircrent  shape  from  tiiat  ilaiiiied,  mid 
the  aica  expressed  in  tlie  grant  was  incousjslcul 
with  jilaintilT's  contention. 

//(/'/,  /"/•  McDonald,  C.  .F,,  Weatherbc  and 
Thomjjson,  .1.).,  that  the  plaintilF  had  given 
no  evidence  of  title  to  the  locus;  and  /«'/•  Rigby, 
J.,  that  tlie  preponderance  of  evidence  was 
against  plaintitrs  contention.  Verdict  for 
plaintiff  therefore   set    aside. 

(idles  V.   Dariihoii  <l  (iL,  ."»  \\.  it  <;.,  l.'U. 

On  (i/tpi(i/  to  Ihi  Sii/iri  nil'  Court  of  Cdinnln, 

Ili/il,  that  there  was  evidence  for  the  jiuy 
that  the  line  claimed  by  the  defendant  \sas  the 
western  line  of  his  grant.  The  case,  however, 
was  not  so  clear  as  to  justify  the  Court  in  revers- 
ing the  decision  of  the  Court  below,  come  to  nn 
a  review  of  llic  evidence  ;  but  was  a  proper  case 
for  further  consideration  on  a  new  trial. 

Oalct  V.  Dnridsoii,  l.'lh  jfay,  ISS.', 

('as.   Digest,  .")l('p. 

5((.   Shubenacadie  Canal  Company  -What 

rights  conferred  on  by  Act.s  of  Incorporation  — 
Action  of  trespass  by — 

See   PRACTICE,  m- 
EYIDENCE,  4. 

57.    Verdict  against  evidence  —  Plaintiff« 

being  owner  of  a  certain  lot  of  inarsh  land,  al- 
lowed his  son  to  cut  and  appropriate  the  grass 
growing  thereon,  which  the  son  did  for  several 
years  previous  to  an  action  brought.  Defend- 
ant owned  an  adjoining  lot  and  plaintiff  brought 
trespass  against  him,  alleging  that  in  cutting 
his  own  grass  defendant  had  mowed  over  the 
division  line  and  into  the  plaintiff's  lot.  Two 
(|uestions  were  raised  by  the  issues :  first,  was 
plaintiff  in  actual  possession  of  the  lot  and  en- 
titled to  the  grass,  and,  second,  was  there  any 


1505 


TRIAL. 


156G 


IreKjHisH  at  all  coniiriittcil  ?  Tlio  jury  foiirnl  for 
|ilaintitr<>n  Ixitli  jhhiius. 

J/ilil,  llial  tlit'i'/  vunlift  imiMt  lie  si't  rt»iili!,  tlie 
ovideiK't!  ulfarly  Hliowiiig  that  |ilaiiitiir,  altlioiigli 
tliu  undiMputuil  owiior,  liail  not  hucIi  poHMCHMion 
(if  tln!  lot  at  tiie  time  of  action  brought  an  to 
ontitlf  liim  to  maintain  trfH])asH,  ami  lliuro  being 
nothing  to  warrant  their  liniling,  tiiat  tiiereiiad 
lieen  a  trexpasH  coniniilteil. 

Wilkins,  ,).,  iliiliiiaiiii , 

Wherever  the  jury  decide  against  or  without 
evidence,  tiie  Court  will  always  exercise  its 
riglit  to  control  them,  in  order  that  justice  may 
lie  done. 

Cox  V.   Wiiiy'l  N'.  S.  1).,  -i,-). 

.18.    Verdict  sot  aside -In  an  aetlon  Tor 

trespass  to  plaintitl'.s  lUvelling  Imiise,  dcfend;int 
admitted  that  |)lainlill'  at  his  (plaintifF's)  own 
door  had  tohl  him  he  did  not  want  to  hear  him, 
and  had  closed  the  door,  and  tliat  he  (defendant) 
had  tlien  said  that  plaintilt'  should  hear  him, 
and  had  gone  iimnediately  to  plainlitl"s  \s  indow, 
and  there  struck  on  the  sill  for  alH)Ut  live 
minutes.  Several  witnesses  testified  that  de- 
fendant liad  struck  the  sill  in  a  violent  maimer, 
and  had  used,  wiiile  so  doing,  violent  and 
allusive  language  towards  plaintilV,  alarming  the 
inmates  of  plaintitl's  house. 

Ill  Id,  that  a  trespass  had  lieen  proved  which 
entitled  the  plaintitl'to  some  damages,  and  the 
jury  having  fomul  for  tiie  defendant,  the  Court 
set  the  verdict  aside,  and  onlered  a  new  trial. 

C'itiiinii;/ltuin  V.  Jfail/ii/,  1  Ohl.,  ."i.'iO. 


TKUL.  I 

1.  Entry  for  trial    A  defendant  pleadliiK 

liefore  the  exjiiration  of  the  i)eriod  allowed  liy 
law,  will  not  entitle  plaintiff  to  place  the  cause 
on  the  trial  docket  within  the  period  allowed 
tlie  defemlant  to  plead. 

HntchiiifOii  v.   Widuim,  James,  .SS7. 

2.  Notice  of  trial  —  Defendant  souj^lit  to 

set  aside  a  default  on  the  ground  that  there  was 
no  notice  of  trial  indorsed  on  the  writ  of  sum- 
mons, although  there  was  a  notice  to  appear. 

Htld,  reversing  the  judgment  of  the  County 
Court  Juilge,  that  the  default  was  regular. 

liimn  V.  Utrmci,  5  R.  &  (S.,  55'2. 

3.  Notice  of  trial— It  is  no  objection  to  a 

notice  of  trial  that  it  is  headed  with,  the  name 
of  only  one  of  the  plaintiffs,  if  the  defendant  has 
not  been  misled  thereby. 

Ktane  et  at.  v.  Sharp,  1  Old.,  540. 


4.  Notice  of  trial -Tlic  time  for  serving 

notice  of  trial,  not  Iwing  fixed  by  the  new 
Practice  Act  (IS.'i.S)  is  to  be  legulated  by  the 
practice  of  the  Superior  Courts  of  Connnon  l-iiw 
in  Knglaml. 

Where  short  notice  of  trial  wiis  given,  and 
verdict  taken  for  ])laintitT  subject  to  the  objec- 
tion, the  verdict  was  set  asidt.'. 

Dntiiunoml  v.  Cnrrilt,  JaincH,  'J(18. 

5.  Notice  of  trial- Wliere   the   venue, 

originally  laiil  at  Halifax,  was  changed  to 
Sydney,  C.  B.,  by  rule  made  alu'.olute  on  t!ie 
Tuesday  next  preceding  the  Tuesday  on  which 
the  October  term  ojieiied  at  .Sydney,  but  not 
served  until  the  following  ilay,  and  the  plaiiititf 
did  not  proceed  to  trial  at  the  October  term,  luit 
tried  his  cause  without  notice  at  the  June  term 
thereafter,  anil  obtained  judgment,  the  defeiid- 
ant  not  appearing,  the  Couil  set  aside  the  judg- 
ment without  costs. 

//(((•-•/.    V.  ,V'AV<i/,  :{  K.  Jt  ('.,  !».'). 

tt.    Postponement  -.\bsence  of  witness— 

A  continuance  will  lie  granleii  to  defendant  for 
absence  of  a  material  witness,  although  he  might 
have  applied  eailii^r  for  a  commissiou,  whiih, 
liowcvcr,  could  have  iiardly  been  returned  in 
lime  for  the  .Sittings, 

JiiiKs  V,  Williams,  .lames,  ,'((>H. 

I.  Postponement  —  .\bsence  of  witness  — 

In  order  to  jirocure  a  continiiaiue  on  the  ground 
of  absence  of  a  witness  defendant  must  !?iiew 
that  he  has  used  all  possible  diligence. 

Smith  V,  .l/H.r/cr,  James,  ,S41. 

8.  Postponement  -Absence  of  witness- 
Where  a  material  witness  for  defendant  gave 
notice  after  action  brought  to  the  defemlaiit's 
attorney  of  his  intention  to  leave  the  Trovince 
without  stating  the  precise  time,  and  afterwards 
went  away  suddenly,  the  Court  refused  a  con- 
tinuance on  acc<mnl  of  his  absence. 

Kiilh  v.  Ihulley,  James,  170, 

ft.    Postponement— Application  for- The 

Court  will  not  grant  a  rule  iiitiiov  a  continuance 
on  account  of  the  absence  of  a  witness  when  the 
application  is  not  made  suthciently  early  in  the 
term  to  allow  plaintiff  to  answer  the  rule  the 
same  term. 

Ktiih  V.  7Vfw«(H<,  James,  177; 
Pnrcell  v.  Bark",,  Id.,  IV.U. 

10.    Postponement-At  the  trial  the  cause 

was  continued  a  day  to  enable  plaintitf  to  get  a 
i  deposition  which  could  not  be  found, 


15G7 


TRIAL. 


ir)Gs 


Hfhl,  that  thin  uin»  no  ol)j(M;tion  to  tlio  ver- 
dict for  ))lnintitT,  an  the  Jiidgo  liail  iliHorotion 
un<ler4th  R.  S.,  c.  94,  h.  '.'10. 

FoHltr  et  a/,  v.  LttmU,  3  R.  &  C,  269. 

11.  Postponement  —  CommlMlon  not  re- 
turned— Thu  tlufuiiilaiit,  ill  onlt'i'  to  oi)tuiii  a 
continuance  on  thu  ({round  of  a  couJUiiMHion  not 
)ieing  returned,  niUHt  Hhow  that  he  haH  uoed  due 
diligence  to  obtain  itx  return  in  time. 

Landry  v.  Jonex,  ilanioH,  ,341  ; 
Fenju-ion  v.  HyiU,  Id.,  334. 


I'i.    PoNtponemrnt  —  The  affldiivU  for  a 

continuance  on  the  ground  of  the  u)>8oiiuu  of  a 
material  witnusH  ougiit  to  hIiow  wlien  lie  is  ex- 
pected to  return. 

Dtvaen  v.  I>\ii>ut ,  '1  Tiiom.,  13. 


13.  Postponement  to  procure  evidence  - 

An  application  to  a  Judge  of  the  County  Court 
for  a  continuance,  in  order  to  unahle  plaintitYto 
jirocure  the  evidence  of  a  material  witness,  was 
refu.sed  on  the  ground  tliat  a  continuance  had 
been  previously  granted  for  the  same  purpose, 
ami  the  Judge  had  no  power  to  order  a  second 
cfuitinuance. 

//'■/(/,  that  the  Judge  had  a  discretion  which 
he  should  have  exercised. 

Cox  V.  C'forhr,  7  R.  &  <i.,  21  ; 
7C.  L.  T.,  r>_». 

14.  Venue  —  Chanare  of  venue  refused, 

preponderance  of  convenience  being  proved,  liy 
plaintiff's  utKdavit,  to  be  largely  in  favor  of 
venue  laid. 

The  Ju<lge  before  whom  the  application  for  a 
change  of  venue  was  made,  having  discharged 
it,  directed  the  plaintiiT,  in  accordance  with  an 
offer  in  plaintifll"'s  allidavit,  to  enter  into  a  rule 
to  make  certain  admissions  of  technical  but 
necessary  matter, 

Hi-ld,  that  this  condition  imposed  upon  plain- 

tifT  was  not  a  ground  for  appeal  by  defeiulants. 

Wocxlworth  V,  Blarkadar  et  al.,  '2  R.  &  C,  309. 


15.  Venue-Change  of— Defendant  ap- 
plied for  and  obtained  an  order  at  Chambers, 
changing  the  venue  in  the  case  on  the  ground  of 
balance  of  convenience,  &c. 

It  appearing  that,  at  the  time  the  order  was 
granted,  the  issues  had  not  been  settled, 
Hi'ld,  that  the  order  must  be  set  aside. 

Kidd  v.  Henderson,  20  N.  S.  R., 

(8  R.  &G.),  441  ; 
9C.  L.  T.,  198. 


16.  Venue  -Change  of-Defendant  moved 

for  a  rule  to  change  the  venue  in  a  cjise  from 
Halifax  to  Kings.  Jlis  MtatementH  were  precise, 
and  showed  that  a  large  amount  of  money  ami 
I  time  would  be  saved  by  the  change.  Against 
this  the  plaint  itr  offered  nothing  specific,  except 
that  the  cause  of  action  arose  in  Halifax.  The 
rule  was  made  absolute,  l.'Ut  without  costs. 

Foriylh  v.  I'orxylh,  I  N.  M,  1).,  494. 

17.  Venue -Change  of-Headlnff  aflldavlt 

— An  allidavit  is  sulliciently  entitled  in  the 
cause  although  the  words  "plaintilF"  and 
"  defeiulant  "  arc  omitted  in  the  heading  after 
the  names  of  the  parties. 

The  changing  of  the  veime  in  a  cause  dupeiuls 
merely  on  the  balance  of  convenience  as  regards 
'  the  trial. 

In  this  case  the  Court,  being  of  opinion  that 
the  cause  eoidd  be  more  conveniently  tried  in 
another  county  than  that  in  which  the  venue 
was  laid,  made  the  rule  to  change  the  venue 
absolute  with  costs. 

Harris  v.  Fader,  2  OM,  371  ; 
j  I  N.  «.  1).,3, 

IS.  Venue -Change  of- On  an  appeal 

from  the  i>rder  of  a  Judge  at  Chandlers,  wiio 
refused  to  change  the  venue  in  a  cause,  on  the 
'  ground  that  the  defendants'  attidavits  did  not 
satisfy  his  miml  that  all  tiie  witnes.ses  referred 
1  to  as  necessary  and  material  were  designed  to  he 
I  called  and  exannned  at  the  trial,  and  that  tiie 
atlidavits  were  not  in  Ids  opinion  sutiicieut  to 
deprive  the  jdaintitf  of  his  connnon  law  right  to 
I  lay  the  venue  in  the  county  he   had  selected, 
especially   as    tile  plaintiff's  athdavits   set    out 
'  his  conviction  that  he  could  not  obtain  an  im- 
partial trial  in  the  county  to  which  defendants 
sought  to  remove  the  venue,  the  Court  refused 
'  to   disturb    the    order   of   the   Judge   made    at 
I  Chambers,  as  there  was  no  rtason  in  Inslieve  that 
j  the  Judge  had  misconceived  the  fact.s  of  the  case. 
Ihirkee  V.  Cox  et  al.,  1  R.  &  C.,  143. 


I    19.    Venue-Change  Of -On  appeal  from 

I  the  decision  of  the  Judge  at  Chambers  changing 

the  venue  from  Halifax  to  Cumberland,  where 

the  statements  of  the  defendant  as  to  conveni- 

;  ence  in  trying  the  cause  were  in  their  essential 

j  features  uninswered,  and  it  was  not  shown  that 

the  Judge  had  misconceived  the  facts  of  the 

case,  the   Court  refused  to   interfere  with  his 

I  di.scretion,  and  although  plaintiff's  agent  swore 

I  to  the  existence  of  a  hostile  feeling  in  Cumber- 

i  land  which  would  defeat  the  plaintiff' 's  claim, 

I  the  Court  woidd  not  presume  that  an  impartial 


ir)C9 


TROVER. 


1570 


triftl  could  not  he  had  thorts  in  a  niiittor  having  ,  Hvo  witnonKcii  lOHiding  at  Haddock,  and  that  it 
no  guncral  or  ixditicul  iiii|>ortani.-u. 


i  would  coHt  liini  91'JI)  nioru  to  try  tho  oauae  in 
llolih  V.  Flinn,  •«'  U.  &  C,  '27.    Halifax  timii  it  would  in  Madduok  ;  and  plaintiff 

ullcgud  that  thu  uttorni'yH  and  cuunntil  on  lioth 
Hidc'H  ruHidud  in  Halifax,  that  liu  hail  two  wit- 
nuHHCH  who  coidd  nioru  iniHily  lit-  taki'u  to  Hali- 


tlO.   Venue -Change  of   Plnlntlff,  who  re 

«idi!d  at  Kontvillu,  brought   un  action   again.'*t 


lU-fundunt  and  lahl  tho  vonuc  at  Kentvillo.   Tho  |  fax  than  to  Haddock,  aii.l  that  it  would  cohI  him 

contract  waH  niodu  in  Halifax  w  heru  dufundant 

had  rt'Hidud,  and  all  hix  wilnidMcs  wen,-,  and  it 

waH  aH  convunient  for  tiu-  majority  of  iilaintiff's 

wilncHHoH  to  attend  at  Halifax  for  tiic  trial  m  at 

Kuntvillo.     On  appliialion  i)y  defendant, 

111  Id,  that  the  vunui!  should    hu  cluuigud  to 
Halifax. 

I'ay-Mnl  v.  Afonl'iomny,  ,*}  N.  .S.  1).,  40.>. 


21.   Venue— Chniiffe  of   Smith  moved  for 

ndu  nisi  for  changt!  of  venue  to  Andierst,  the 

cause  of  aetion  having  arisen  in  I'arrslioro'. 

Hallihurton,  C. .?.— You  are  entitled  to  a  rule 

ahsolutu  in  accordance  with  the  practice  in  the 

King's  Hench. 

iShfl,'  V.  Fi/i-,  .James,  18.3. 

•22.    Venue -Chanee  of- The  Court  will 


9'H  more  t<i  try  the  cause  in  Itadduck  than  in 
Halifax, 

Tho  Court  disniiHsed  the  appeal  without  coatii 
directing  that  the  testimony  of  ilefendant's  wit- 
nesses he  taken  i/'  lnin  mi'  and  received  in 
evidence  at  the  trial  in  Halifax. 

Kiii'i  V.  Tniilin  of  Sfhiinl  ^I'l'linn  of 

Jladilirk;  2  K.  &  C,  515. 


TKOVEK. 
1.    Action  asalnnt  SherlflT  -Ju^tlflcatlon- 

Where  the  defendant  as  SheritJ",  seized,  umler  a 
writ  of  attachment,  goods  in  tho  possession  of 
the  plaintifT,  to  whom  they  had  lieeii  transferred 


transfer  was,  in  a  suit  hy  the  plaintitl'  against 
the  .Slieriff  for  the  alleged  conversion,  attacked 


not  change  tiic  venue  on  the  ground  of  the  con- I '•>'    '|"'    '^I'^'S"''    ahscoiiding    dehtor,    and    the 

venience  of  trying  tho  cause  elsewhere  unless  it 

he  shown  that  there  is  a  great  and  olivious  \m\- 

pondcranco  of  convenience,   even  where   it    j..,  i  "•■'<  fi'iUKl'dent, 

nought  to  change  it  to  the  place  where  the  cause 

of  action  arose. 

liartiaiix  v.  Cohvquiil  IniHi-aiin-  Co., 

1  K.  &  (•.,  '255. 


Hi/il,  that  the  justiH^ation  of  the  seizure 
under  the  writ  was  not  complete  without  proof 
of  an  indebtedness  from  the  alleged  absconding 
ilel)tor  to  the  party  attacliing,  and  that  the  pro- 
iluction  of  the  alKdaviton  which  tlie attachment 

23.    Venue -Change  of-Where  an  order  '•'*'*"^'''  ""**  ""'  Nurticient  for  that  i)urpose. 

has  beenmadeby  a.ludgeat  ('hainbers  tocliange  1  Mill"  v.  McI.kiii,  I  H.  it  C,  .'<"!). 

tile   venue  in  a  cause  on  an  allidavit  showing  I 
special  grounds  for  it,   tlie  Court  will  not  inter- 
fere to  set  it  aside,  or  bring  back  the  venue,    property  by  execution  debtor— Misdirection 
uidess  it  is  manifest  that  the  .Judge  who  made    of  jury  — In   an  action  of  trover  or  conversion 


2.  Action  of,  against  SherlflT  -Transfer  of 


tlie  order  had  acted  on  a  misconception  of  tiie 
facts,  or  that  it  is  r>tlierwise  erroneous. 

Defendants  applied  to  have  the  venue  changed 


against  appellant,  Higli  .Sheritl'of  the  County  of 
Cumberland,  N.  >S.,  to  recover  damages  for  an 
alleged  conversion  by  the  appellant  of  certain 


from  Halifax  to  Windsor,  stating  in  their  affida-  personal  property  found  in  the  possession  of  the 
vits  that  the  cause  of  action  arose  in  the  County  execution  debtor,  but  claimed  by  the  reapon- 
of  Hants,  that  it  would  be  much  more  con-  |  dent,  the  pleas  were  a  denial  of  the  conversion, 
venient,  and  ler;a  expensive,  to  try  the  cause  at  "o  property  in  plaintitT,  no  possession  or  right  of 
Windsor,  and  that  it  would  l)e  more  convenient  ^  I'ossession  in  plaintiff,  and  justitication  under 
for  the  plaintiff  to  attend  tiie  trial  at  Wind.sor,  "■  wit  of  execution  against  the  execution  del)tor, 
than  at  Halifax.     These  statements  being  un-  i  The  learned  .Judge   at  the   trial  told    the  jury 


answered  by  plaintiff. 


that  he  thought  it  incumbent  on  the  defendant 


//)lil,  that  the  Judge  exercised  a  sound  dis-  ,  to  have  gone  further  than  merely  producing  and 

cretion   in   granting  the  order  to  change   the    proving  his  execution,  and  that  if  a  transfer  had 

venue.  j  taken  place  to  the  plaintiff,  and  the  articles  l>een 

DelVolfe  et  al.  v.  Niel  el  al.,  I  N.  S.  1).,  179.  I  taken  and  sold,  defendant  should   have  shown 

I  the  judgment  on  which  the  execution  issued  to 
24.   Venue— Change  of— Where  defendant,    enable  him  to  justify  the  taking  and  enable  him 
appealing  from  a   Judge's  Order  at  Chambers    to  sustain  his  defence. 


discharging  an  order  nisi  to  change  venue  from  ! 
Halifax  to  Baddeck,  alleged  that   he   required  j 


Held,  no  misdirection. 

Hannon  v.  McLean,  3  R.  &  C,  101. 


IT)?  I 


TROVKR. 


i:)72 


On  a/iii(ii/  Id  Ihi  Sii/'riiiir  ('mirl  ti/  Cdiiitiln, 

l/ilil,  tliikt  till'  Slii'iiir  wjiH  <'Mtitl('il  iinili'i' hill 
pli'iiM  Id  liiivi!  it  left  t<i  the  jury  •"  wiy  ulictlmr 
the  |iliiiiitilT  liiid  nIiowii  title  nr  right  nf  iminnciI' 
nidii  to  the  giiiiiN  ill  i|ii('Ntiiiii,  luicl  therefore) 
there  wuh  iiii>iiIii(<tiiiM. 

Jfrhdi,   V.  lliuiiwn,  :i  S.  ('.  |{.,  :<MI. 


:i.    (onvcrNliui     ncn'tidant  bccaiiH'  Ihc 

lixHcc  (if  fi'ilikiii  |irriiiiMi'H  upon  wliiili  uum  ile- 
poNltcil  II  i|iiiiiitiiy  (if  I'liul  licliiiigiiig  til  pliiin- 
titrn.  Shortly  after  tiikiii),'  poMHcuMioii  ilrfi'iid- 
ant  Kci'Vfcl  pliiintill's  with  ii  written  notioe  to 
theetl'eil  tliiil  if  they  iliil  not  reiiiovi'  the  eoiil 
lu'  woiiM,  mill  elmrjie  tlieni  with  the  exjieiiHu  of 
K'inoving.  They  piiiil  no  iitteiitioii  to  the  no- 
tiei'  iinil  ilefeliilani  tli'.'reii]iiiii  eiiiixed  nil  the  eiiiil 
til  he  eiirteil  iiwiiy  anil  the  yieater  part  of  it  ile- 
utroyeil.  Some  wiiiall  porlioii  of  it  was  useil  liy 
IiIh  Mervantx, 

//(/(/,  that  a  verdict   in  trover  fur  the  plain- 
till'm  eiiilld  not  he  di.stmlied, 

Snuii'iii  if  III,   V.  Ci(ff' r,  2  N,  S.   1>.,  -1,'iri. 


I.    ('<uiv«'r.sloii  —  Kvld»'in'«' of   A  cIumiiic, 

payalile  to  the  plaiiitill',  or  order,  was  mailed 
to  the  plaintitl's  aildiess,  Iml  he  did  not  reeeive 
it,  and  it  appeal e  I  that  a  few  dayn  afterwardti  a 
youiim'  man  whom  plaintilF  had  ])reviiinsly  dis- 
miHseil  from  IiIh  emjjloy,  had  lirought  the  ehei|ue, 
with  till!  )iliiintiH"H  name  indorsed  on  it,  witli- 
oiit  aiilliority,  to  \\w  hank,  and  had  drawn  the 
money.  I'laintifT's  attmiiey  wrote  to  defend- 
ants ileniaiidin|y;  the  nioiiey,  liut  not  the  eliei|iie, 
and  ilefendanln'  attorney  replied  that  if  plaiiititT 
would  write  a  letter  to  the  liank  declaiiiig  the 
indorsement  a  ffirgery,  and  statin^;  that  he 
would  lie  prepared  to  ^livo  evidtnee  if  reijuired, 
the  amount  would  he  jiaid.  I'laintitl's  attorney 
then  wrote  to  defeiiilantH' attorney,  askini^  that 
defendants  would  jiay  or  restore  the  eheijue. 
The  chei|ue  was  handed  liy  the  Hank  to  the 
lilaintiff  on  condition  that  he  would  return  it, 
wliieli  he  did,  hut  it  was  not  delivered  to  him 
as  his  own  property. 

Hilil,  that  the  demand  to  pay  or  return  the 
eheque  was  a  sufficient  demand  of  the  che((ue, 
hut  that  plaintitl'  had  no  such  property  in  the 
eliei|ue  and  no  such  possussiun  of  it  as  would 
entitle  him  to  maintain  the  action,  and,  even 
if  he  had,  that  the  defendants'  refusal  was  not 
such  an  absolute  refusal  as  to  constitute  a  con- 
version, 

(Jaaere,  whether  under  the  County  Court 
Amendment  Act  of  1877,  c,  6,  s.  25,  giving  an 
appeal  where  the  judgment  is  over  S40,  it  is 


Niitlieii'iit  that  there  hIioiiIiI  lie  a  judgment  for 
coMtit  to  that  amount. 

Annanil  v.  'J'/u.  Mir''hitiiii'  llittiK, 

•A  H.  *('.,.TJ1I. 

il.    Cnnvpritlon  —  Evidrnro  of     PInlnllir 

hired  defendant  to  travel  and  sell  certain  ^immIh 
for  him  for  cash  or  approved  notes,  to  return 
Hiii'h  j^'iioils  as  were  not  disposed  of  and  aeeoimt 
for  the  proce«(lH  of  those  Hold.  Defendant  hav- 
ing failed  to  aeciiiint,  this  luliim  was  lirou(,'lit, 
the  deelaration  lontainin;^'  a  count  in  trover  and 
a  eount  for  money  had  and  received.  !)efeiid- 
ant,  havinj.'  Iieeii  shown  plainlitrVaeiroiint  for  the 
jioods,  hy  his  attorney,  admitted  it  to  lie  in  the 
main  correct,  and  otlered  t<i  Jiay  .*I(M»  (lieiiij,' li'ss 
than  the  |)liiintitl'  claimed),  which  was  refused, 
and  on  ]ilaintitt"s  attorney  a.sking  defendant  if 
he  would  neither  account  for  the  j;iiods  or  give 
them  up,  nor  pay  for  them,  defendant  said  ho 
would  do  lieitiiei, 

l/i'il,  that  this  iiiiswcrwas  no  evidence  of  a 
wrongful  conversion,  tiieri'  lieing  no  evidencu 
that  tile  dcfeiiilant  when  he  made  it  had  any  of 
the  goods  ill  his  possession,  as  he  had  previously 
stated  to  plaintiff's  attorney  that  he  had  sold  all. 

The  jilaiiititr  stated  in  his  evidence  thai  de- 
fcinlant  had  prnmised  to  comi^  to  his  place  and 
settle,  and  that  he  (plaiiitill')  uuderstnod  from 
tlie  defeiidaiil  on  that  occasion  that  all  the  goods 
were  sold  excejit  a  few  luidlcs.  This  evidence 
was  not  contradicted  liy  llie  defendant. 

//'/(/,  that  it  was  not  siillicieiil  to  wuriaiit 
I  lie  lonclusion  tiiat  the  goods  were  sold  lor 
cash,  as  the  defendant  was  authori/ed  to  sell 
for  cash  or  approved  notes. 

Sniili/i ,  that  under  the  evidencu  the  plaintitf 
could  have  recovered  on  a  count  for  not 
accounting. 

Wa/Lir  V.  CiiiiiiIiiiiIkoii,  'A  H.  fc  ('.,  1. 

i     «.    ConvcrMion  —  Servant,  Juc.  -Plaintiff 

i  was  in  the  habit  of  hiring  liorses  and  waggons 
;  to  persons  renuiring  them.  During  his  absence 
':  from  home  his  wife,  contrary  to  instructions  not 
j  to  hire  li(>i-ses  or  carriages  in  his  absence,  though 
the  evidence  on  this  point  was  of  a  doubtful 
character,  hired  to  C,  one  of  the  defendants,  a 
waggon  and  several  horses,  to  be  used  in  con- 
veying a  gold  crusher  from  I'ort  Hood  to  River 
Dennis.  While  the  team  was  crossing  a 
bridge,  driven  hy  U.,  an  experienced  driver, 
who  was  joined  as  co-defendant,  and  against 
whom  alone  the  action  was  prosecuted,  one  of 
the  horses  received  injuries  by  getting  a  leg 
through  the  bridge,  in  consequence  of  which  he 
died.  The  plaintifif's  writ  contained  counts  in 
trespass  and  trover,  but  the  action  was  treated 


\r,7n 


TROVER. 


\'y7i 


thrnuKluiiit  an  iiiii'  nf  tri>\tr,  A  vvnllct  having 
lirt'n  fiiiiiul  for  |iluiiitiir, 

//'  /</,  tllllt  llllTU  WIIM  110  UVilU'llCe  llf  C'llllVlTHioll 

))y  th«  lU-fi'Dilunt,  I>.,  iiiiil  that  lii>,  M\m  iiicruly 
till'  Ncrviiiit  llf  I',,  (iii^lit  not  to  li«'  liclil  rcHpoiiHi- 
lilt'  for  III!  injury  wliii^li  wiim  uiliiiittcil  to  have 
Ik'cii  lit)  iiii'vitalilo  acc'iiU'iit. 

.1/i(/7«'"/  V,  Dii/haiifi/  ,t  at.,  '2  \.  S.  !).,  '.MH. 

7.  ('pnTemlon  -  I'nnuthnrlzcd  Halo  of 

(;on(lH  liy  widow  of  intentate— Tlic  wiilow  of 
uii  inti'stiitc  iliH|ioMi'il  of  a  pair  of  oxen  lii'loii),'iiig 
to  tilt'  iiitt'Htati'M  cwtiito  for  a  "  liarrol  of  Hour, 
I'aMli,  ami  otiior  lliiiigH,"  aiiiIa|)pli(Ml  tlu^  procuudH 
to  iu'r  own  HiiMtoiiaiict', 

//'/'/,  ill  an  aclionof  trover  I ly  the  ailiniiiin. 
tratrix",  that  the  Imyer  Nhouiil  have  known  from 
the  manner  of  Hale  that  it  wai  not  made  in  iliie 
eonrse  <if  adminiKtration  ;  that  there  waH  no 
reaxonalile  jfround  for  Hupposiii),'  that  the  wiilow 
had  aiithiirity  to  Hell,  anil  that  a  Hale  for  Hueh  a 
eonHideration  wax  not  a  lawful  one,  or  Hiieli  aM 
the  adminiHtratrix  would  have  heeii  lioiilid  to 
perform  in  due  eoiirse  of  adminiMtration. 

Mahrr  V.  /IiMi/,  .->  U.  Hi.  (i.,  '2'X>. 

8.  Crown  property  -  Pliiiiitifr  iipplicd  for 

a  grant  of  Crown  land,  ami,  wiiile  tlu^  appli- 
cation was  pending,  defendant  illegally  eiit  a 
numlier  of  logs  on  the  land  and  removed  them. 
The  logs  were  seized  liy  a  Crown  surveyor  under 
section  .'J  of  ehapter  12,  H,  S,  (4th  series),  and 
were  afterwards  driven  to  defendant's  mill  and 
sawn  up.  Plaintiff,  having  tirst  ilemanded  the 
logs,  lirouglit  trover  for  them  and  obtained 
judgment  ill  the  County  Court. 

II(/<I,  that  tlie  Crown  was  not  limited  to  the 
condemnation  proceedings  set  out  in  cap.  \'2,  H. 
.'^.  (4th  series),  as  the  cliajiter  did  not  expressly 
take  away  its  existing  reinodies,  hut  that,  as 
there  was  no  evidence  that  the  plaintitF  had 
ever  had  pos.session  of  tliu  logs,  the  appeal  must 
he  allowed. 

Moiynii  v.  h'ln ,  4  R.  &  (i.,  3GS. 

9.  Damages  in  -Excessive— How  reduced 

—  \V.  ('.,  the  master  of  a  merchant  vessel,  made 
a  voluntary  gift  to  the  plaintiff,  his  daughter, 
of  a  Hpy  glass.  Immediately  afterwards  he  pro- 
ceeded on  a  voyage  and  was  lost  at  sea.  De- 
fendant obtained  possession  of  the  glass  from 
the  plaintiff,  promising  to  return  it  to  her,  but, 
having  been  appointed  administrator  of  W.  C, 
of  whom  he  was  a  creditor,  instead  of  returning 
the  glasn,  he  had  it  appraised  and  sold  it. 
Plaintiff  thereupon  brought  trover,  to  which 
defendant  pleaded  :  (Ist),  denying  the  conver- 
sion ;  ('2nd),  denying  the  property  in  the  phvin- 


titl';  ami,  (.'ird),  alleging  that  tlu^  gJaKs  was  the 
property  of  the  deeeaHi'd,  of  whom  defendant  at 
the  time  of  the  alleged  taking  aiiil  coiiversioii 
wiiN  adminiMtrator,  and  that  iim  >fuch  he  trxik 
and  retained,  etc.  'I'lui  jury  found  in  favor  of 
plaiiititr  for  .f.'i.'ti)  damageM, 

I/i/it,  /iir  WilkiiiM  and  DeHllarroH,  J. I.,  Dodd, 
.F,,  coiieurring,  and  Sir  \V,  Young,  C.  d.,  and 
.MeCidly,  . I.,  <//<ii /(^i«i/,  that  plaiutiir,  being  in 
poMMeHHiou  at  the  time  of  the  taking,  had  a  clear 
right,  even  without  title  shown,  to  iiiiiiiitaiii 
the  action  against  the  defendant,  who  was  a 
mere  wrongilner.  That  the  defendant  was  not 
a  creditor  within  the  meaning  of  1,'ith  KM/..,  c. 
!\,  but  that  even  had  liu  been  Hiieh,  he  being 
administrator,  could  not  as  such  creditor  he  per- 
lllitted  to  impugn  till'  gift,  even  if  tlie  estate 
were  in.siilvent  and  otiier  ereditor.s  were  proved 
to  exist.  That  could  only  be  done  by  the  latter 
or  some  one  of  them  acting  for  hiinself.  The 
i|Uestioii  of  fraud  in  reliUiou  to  a  voluut.irv  gift 
is  in  etl't'it  a  ijiiestioii  of  frauihileiit  intention  iii 
till!  donor's  lirea.st  existing  at  the  time  of   the 

.\  piovi'd  creditor  alone  can  impeach  a  volun- 
tary conveyance  as  fraudulent  against  creditors, 
though  wh -11  it  is  .so  avoidi'd,  it  is  avoided  for 
the  benetit  of  all  the  creditors.  The  creditor 
must  |)iit  himself  in  a  position  to  complain  liy 
obtaining  judgment  for  his  debt  and  shnwiiig 
that  by  the  settlement  he  is  defrauded. 

C'Irirh   v.  riilhrloii,  •_'  \.  S.  1).,  'MS. 

10.  Dercncc  in  County  Court  tliat  ttio 

value  of  the  goods  is  under  $200   - 

S>,  PROHIBITION, - 

11.  Delivery  of  goods  to  carrier  -  Con- 
structive —  Where  the  plaintitT  gave  evi<lence, 
uncontradicted,  that  defendant,  the  captain  of  a 
vessel,  told  her  to  send  her  goods  to  a  certain 
wharf,  and  that  she  sent  them  there, 

III  III,  tiiat  there  was  evidence  of  a  construc- 
tive delivery  to  the  defendant,  which  imposed 
on  him  the  duty  of  looking  after  plaintiff's 
goods  and  taking  them  on  board. 

Morriion  et  al.  v.  Thompson,  '2  R.  &  C,  411. 

i    12.  Demand  and  refusal— Plaintiir  brought 

action  of  trover  and  trespass  for  nets  alleged  to 
I  have  been  run  over  by  the  M.  A.  .Starr,  of  which 
j  defendant  was  master,  and  judgment  was  given 
in  the  County  Court  for  plaintiff. 

Held,  that  the  presence  of  the  steamer  at  the 
place  where  the  nets  were  fouled  was  no  evi- 
dence of  negligence,  as  there  was  uncontradicted 
evidence  that  they  were  not  fouled  in  the  place 
where  they  were  set,  but  had  drifted. 


1575 


TROVER. 


1576 


HeM,  further,  that  a  demand  of  satisfaction  ' 
for  the  nets  destroyed  was  not  a  sutiScient  de- 
mand on  which  to  base  an  action  of  trover  for 
the  remnants  of  the  nets  taiten  on   board  the 
steamer  and  saved. 

Per  Thompson,  J. — That  even  if  thert  was 
evidence  from  which  the  County  Court  Judge ; 
liad  drawn  an  inference  of  negligence  from  the 
vessel  being  out  of  her  usual  course,  such  infer- 
ence was  open  to  review  on  appeal.  I 

Weatherbe,  J. ,  disxentinij ,  found  that  there  ' 
was  evidence  enough  for  plaintiff  to  prevent  a  ' 
non-suit,  and  the  Court  could  not  on  appeal  \ 
review  the  finding  of  the  Judge  on  the  facts  | 
where  the  only  ground  in  the  rule  for  appeal 
was  that  the  jud^'nient  v.as  against  evidence. 

Barrett  v.  Suttis,  5  R.  &  (J.,  262.  ' 

13.    Demand  and  rcftisal  —  The  plaintiff 

as  assignee  in  insolvency  brought  an  action  of 
trover  for  goods  which  had  been  conveyed  by  '. 
one  Ren  wick  to  defendant  in  contemplation  of 
insolvency.     The  goods  had  been  sold  by  de-  | 
fendant  before  action  brought. 

Held,  that  evidence  was  not  necessary  of  a 
•demand  and  refusal.  I 

Bli-jh  V.  Darling,  3  R.  &  G.,  248. 

U.    Gratuitous  bailment  —  Lien,  &e.  -  A 

watch  was  left  by  one  Von  Schoern  with  the 
plaintiff  for  repairs  and  when  called  for  two 
days  afterwards  was  not  :eady,  whereupon 
plaintiff  loaned  to  Von  Schoern  a  watcii  to  be 
kept  till  the  repairs  were  completed.  The 
watch  so  loaned  becoming  out  of  repair  in  Von 
Schoern 's  hands  was  taken  by  him  to  defendant 
for  repair  and  defendant  loaned  Von  Schoern 
another  to  use  in  the  meantime,  with  which 
Von  Schoern  absconded.  Plaintiff  learning  that 
his  watch  was  at  defendant's  shop,  demanded  it; 
defendant  refused  it,  setting  up  a  lien  for  re- 
pairs. 

Held,  affirming  the  decision  of  the  County 
Court,  that  the  loan  of  the  plaintiflf's  watch  to 
Von  Schoern  was  a  mere  gratuitous  bailment 
■existing  during  the  mere  pleasure  of  tlie  lender, 
passing  no  special  property  to  Von  Schoern,  and 
the  defendant  could  not  set  up  any  lien  for  the 
Tepairs. 

McDonald  v.  Stirskei/,  3  R.  &  C,  520. 

15.    Hiring,  lease,  Ac.— In  an  action  of 

trover  for  a  pair  of  oxen  the  learned  Judge  of 
the  County  Court  found  the  foUov.ing  facta : 
C  H.  D.,  the  owner  of  the  oxen  in  dispute, 
delivered  them  to  H.  under  an  agreement  that 
the  latter  was  to  have  their  use  for  a  year  or 


more  for  their  keep.  H. ,  pretending  to  he  the 
owner  of  the  cattle,  executed  a  bill  of  sale  of 
them  to  the  defendant,  who  permitted  H.  to 
remain  in  possession.  H.  afterwards  returned 
the  cattle  to  C.  H.  D.,  the  owner,  who  then 
sold  them  to  plaintiff,  who  was  a  honajide  pur- 
chaser for  value  without  notice. 

Held,  per  McDonald,  C.  J.,  that  there  being 
evidence  to  sustain  the  findings  of  the  J)  .Igo 
below,  or  the  evidence  on  the  part  of  the  defend- 
ant not  being  of  a  character  to  induce  tiie 
Court  to  reverse  them,  the  arrangement  made 
by  C.  H.  D  ,  with  H.  was  not  a  hiring  lease  or 
agreement  for  sale  within  the  letter  or  the  spirit 
of  the  Bills  of  Sales  Act,  c.  92,  oth  R.  S.,  s.  .S. 

Per  Weatherbe,  J.,  that  though  the  evidence 
for  the  defendant  as  to  the  terms  upon  whicli 
the  cattle  were  held  by  H.  was  of  a  suspicious 
character,  it  would  have  necessitated  the  grant- 
ing of  a  new  trial  had  not  the  defendant,  l)y 
permitting  the  cattle  to  remain  in  the  possession 
of  plaintiff  for  18  months  after  the  purchase, 
caused  the  latter  to  alter  his  position  by  incur- 
ring expenditure  in  regard  to  them  and  by  being 
prevented  from  taking  steps  to  secure  the  return 
of  his  money. 

Lewin  V.  Denton,  7  R.  &  O.,  2.'J.') ; 
7  C.  L.  T.,  323. 


16.    lien  for  repairs— A  chronometer  was 

left  by  the  plaintiff  with  the  defendant,  a  chrono- 
meter and  watch  maker  and  repairer  in  Halifax, 
with  instructions  as  sworn  to  by  defendant  to 
put  the  instrument  in  order.  Defendant  ou 
examining  it,  found  that  it  required  repairs  of 
such  a  nature  that  he  was  obliged  to  send  it  to 
Boston  to  have  it  made  right.  Plaintiff  refused 
to  pay  the  amount  charged  by  the  Boston 
mechanic,  and,  on  the  defendant's  refusal  to 
deliver  up  the  instrument,  brought  an  action  of 
trover.  On  the  trial  plaintitf  stated  that  he  had 
not  ordered  any  repairs  to  be  made  beyond 
polishing,  &c.,  for  the  price  of  which  an  ample 
tender  made  before  action  was  proved.  The  jury 
found  for  defendant,  stating  that  they  accepted 
his  version  of  the  instructions  given  when  the 
instrument  was  left  with  him. 

Held,  that  the  defendant  had  a  lien  for  the 
charge  made  by  the  Boston  mechanic,  and  was 
justified  in  refusing  to  deliver  up  the  instrument 
until  the  bill  was  paid. 

Wilkins,  J.,  diituntiwj. 

Webber  v.  Coyaivell,  2  R.  &  C,  47. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,  affirming  the  judgment  below,  that  the 
rule  nisi  for  a  new  trial  should  be  discharged, 
and,  as  no  fault  was  found  with  the  work  done, 


1577 


TROVER. 


1578. 


the  respondent  hud  a  lien  until  he  was  paid  his  by  defendant's  counsel  at  the  trial,  and  no  cases 

charges.  in  support  of  it  were  cited  at  the  argument. 

Wtlibtr  V.  Coifiicdl,  2S.  C.  R.,  15.  w  i^'  i     •  j    i  d    t  ..     m 

'  MorriHon  v.  ttxhinvk,  1  R  &  (J.,  ,59. 


1 7.    Pleading  —  Conversion  -  Possession  — 

Coats,  verdict  set  aside  without— Agent  act- 
ing beyond  his  authority— PlaintifT  in  Novem- 
ber, 1876,  at  the  request  of  one  McKinnon, 
shipped  by  defendant's  steamer  certtiin  goods  of 
which  he  took  a  bill  of  lading,  requiring  them 
to  be  delivered  to  the  order  of  the  shipper  at 
Bayfield.  At  the  foot  of  the  bill  of  hiding  was 
a  memo,  stipulating  that  the  goods  were  to  be 
taken  from  alongside  as  soon  as  the  vessel  was 
ready  to  discharge,  otherwise  to  be  landed  by 
the  master  and  warehoused  at  the  expense  and 
risk  of  the  consignee. 

Plaintiff  first  charged  the  goods  to  McKinnon, 
Init  afterwards,  on  the  same  day,  to  one  Thomp- 
son. On  the  8th  November  plaintifJ  wrote 
McKinnon  :  "  We  are  this  day  shipping  yriur 
goods  per  M,  A.  Starr.  We  have  drawn  on  you 
for  S41'2  on  account.  Please  protect  draft." 
No  one  being  present  on  the  arrival  of  the 
steamer  to  take  charge  of  the  goods  for  the  con- 
signee, they  were  warehoused,  and  the  day  after 
McDonald,  tiie  keeper  of  the  wai-chouse,  which 
was  the  property  of  a  company  in  which  it  did 
not  appear  that  defendant  had  any  interest,  de- 
livered the  goods  to  McKinnon.  There  was 
evidence  of  an  understanding  between  McKin- 
non and  Randall,  the  defendant's  agent  at  Bay- 
field, that  the  former  was  to  deliver  all  goods 
unless  forbidden  by  Randall.  McKinnon  dis- 
honored the  draft  at  mivturity,  and  plaintiff 
then  for  the  first  time  indorsed  the  bill  of  lading 
to  Thompson,  who  demanded  the  goods  from 
Randall,  after  which  the  plaintifiT  brought  an 
action  of  trover. 

Held,  that  under  4th  R.  .S.,  c.  94,  ss.  164  antl 
166,  defendant  could  not  under  a  plea  denying 
the  conversion,  avail  himself  of  the  defence  that 
the  goods  were  not  the  property  of  the  plain- 
tiff; that  the  goods  had  been  lawfully  ware- 
housed by  the  defendant ;  that  the  possession 
of  the  warehousemen  was  not  the  possession  of 
the  defendant,  and  their  failure  to  deliver  the 
goods  did  not  constitute  a  conversion  by  de- 
fendant ;  further,  that  even  assuming  that 
Randall  had  caused  the  goods  to  be  delivered  to 
the  wrong  party  it  did  not  follow  that  defend- 
ant was  liable,  as  Randnll  was  merely  his 
general  agent  and  had  no  authority  from  him  to 
interfere  with  the  goods  or  direct  McDonald  to 
interfere  with  them  after  they  were  warehoused. 

Verdict  for  plaintifiT  set  aside  without  costs,  as 
the  view  taken  by  the  Court  was  not  presented 


18.  Pleading  —  Departure  —  Evidence- 
In  an  action  of  trover  for  logs,  defendant  pleaded 
denying  plaintiff's  property  and  possession,  and 
plaintiff  replied  setting  up  an  ccjuitable  right  to 
the  logs.  The  Judge  at  nixi  jiritis  ruled  that 
there  was  a  departure  in  the  pleadings  on  the 
part  of  the  plaintitf,  who  had  in  his  replication 
set  up  an  ecjuitublc  interest  in  the  property  in- 
stead of  the  legal  right  asserted  in  hisdcclaration, 
and  he  directed  the  jury  to  find  a  verdict  for 
defendant,  which  they  did. 

The  Court  refused  to  set  aside  the  verdict. 
Smith,  ,T.,  holdiii;;  that  there  was  no  evidence  of 
proppr-  •  u!  ;'     plaintifiT. 

N';  t   ''  Mild,  J.,  that  the  replication  was  only 

a  reply  to  a  bad  plea  as  shown  by  the  pleadings. 

Chrimie  v.  Thomas,  3  R.  &  G.,  '203. 

19.  Plea  in  trover  denying  piaintiir'» 

property — When./H.<  iitiii  can  be  set  up  under 
such  plea — In  an  action  of  trover  for  quartz,  etc., 
defendant  pleaded  denying  plaintifiT's  property 
in  the  goods,  and  gave  evidence  that  tlie  [jroperty 
had  been  seized  under  execution  against  the 
plaintiff  and  sold  to  a  third  party.  The  plaintifiT, 
at  the  time  of  the  alleged  conversion,  was  out  of 
possession. 

Held,  that  as  the  plaintifiT  was  out  of  posses- 
sion, defendant  could  set  up  the  j'lt  ttrtii  under 
a  plea  denying  the  plaintiflf's  property. 

CamphfJl  v.  Yeadon,  5  R.  &  G.,  212. 


20.    Possession,  riglit  to,  at  time  cause  of 

action  accrued  sufficient  to  support  trover — 
Not  necessary  to  have  such  right  at  time  of 
action  brought — Wrecked  property  abandoned 
to  underwriters  and  assigned  to  them  by  in- 
dorsement of  the  bill  of  lading  by  the  owner  of 
the  goods  may  notwithstanding  be  recovered  in 
an  action  of  trover  brought  against  parties  ille- 
gally in  possession  in  the  name  of  the  owner  of 
the  goods  for  the  benefit  of  the  underwriters. 
It  is  not  necessary  for  a  plaintifiT  in  trover  to 
have  a  right  of  possession  in  the  goods  at  the 
time  of  action  brought,  provided  he  had  such 
right  of  possession  at  the  time  the  cause  of  ac- 
tion accrued. 

(ioods  assigned  in  troTisitu  by  indorsement  of 
a  bill  of  lading  may  be  revested  in  the  assignor 
by  cancelling  the  indorsement  on  the  bill  of 
lading. 

Stalktr  et  cU,  v.  PVier  ei  ad.,  James,  248. 


157:> 


TROVER. 


15,S0 


til.    I'oNsesHion  upon  which  to  maintain 

trover — I'laintitl  was  iiitnistuil  « itli  tlie  posses- 
sion  of  ct'itain  gucxls  l>y  the  owiilt,  wlio  was 
alioiit  tci  Usivi'  the  I'roviiice,  to  Ije  forwarded  to 
liiin.  With  tliis  intention  tiie  goods  were  sent 
to  a  wiiarf  to  Ih'  sliipjjed  l>y  a  vessel  tlien  lying 
tliore,  l)iil  tliere  was  no  formal  delivery  to  tile 
master  or  any  one  on  l)oai»l.  The  defendant, 
whosJKiwed  no  justitieatiou,  eauseil  the  goods  to 
he  taken  and  sold. 

IIilil,  that  until  tiie  assent  of  tiie  master  of 
the  vessel  to  reeeive  the  goods  was  shown,  they 
remained  in  the  possension  of  the  plaintitt',  a 
special  owner,  so  as  to  enalile  him  to  maintain 
an  aetioii  against  a  wrong  doer. 

.•^uii/onl  V.  /loir/is,  -A  X.  S.  1).,  .S(»4. 


22.    Kcprcsentution,  tie.    One  Niohoison, 

lieing  indehted  to  plaintitl',  gave  him  a  horse  to 
he  sold  towards  the  satisfaction  of  the  clelit. 
I'laintill' swapped  the  horse  witii  one  Haidwick 
for  a  eolt,  informed  Nicholson  of  tiie  trade,  tixed 
tiie  value  of  tlie  coll  at  !?."). 40  more  tliaii  tlie 
deht,  and  paid  tiiis  amount  to  a  ereditoi'  of 
Nicliolson  in  final  settlement.  Uardwick  after- 
wanls  liecame  dissatislied  witli  tlie  trade,  in- 
sisted on  iilainliff  giving  back  the  colt,  and  ap- 
])lied  lo  M.,  an  attorney,  wlio  wrote  plaintitl'. 
I'laintitl'  cailcil  on  tlie  attorney,  and  according 
to  the  evidence  of  the  attorney,  declared  to  liim 
that  the  horse  was  Nicholson's.  According  to 
plainliir's  evidence,  not  contradicted,  he  slated 
to  him  tiie  ariaiigemcnt  l)etween  himself  and 
Nicholson  in  reference  to  the  horse,  as  ahove  set 
out.  On  tiie  same  day,  and  previous  to  the  in- 
terview, M.,  actini,;  as  atlovnej-  of  other  parties, 
had  entered  ui)  a  judgment  against  Nicholson, 
and  the  Judge  of  tlie  County  Court  found  tiiat! 
the  attorney  had,  on  the  faitii  of  plaintitl''s 
statcmtiits  that  tiie  iior.se  was  not  his,  luit 
Nichol.-on's,  caused  the  defendant,  the  Sheritl', 
to  levy  on  it  in  plaintiil's  possession,  and  that 
plaintitl'  liad  alistained  from  .'ooking  after  other 
])roperty  of  Nicholson,  wiio  was  a  mere  tran- 
sient employee.  IJefore  any  exjienses  had  lieeii 
incurred  in  keeping  the  iiorse,  and  ijefore  the 
sale,  the  plaintitl'  notified  tiie  Sheritl'  tliat  the 
horse  was  iiis. 

Held,  ill  accordance  witii  tiie  previ<jus  ruling 
of  the  Court  ('A  H.  &  C,  Vil),  tiiat  tlie  plaintiff 
was  not  estopped  from  setting  up  his  ownership 
of  tile  iiorse. 

/'( /•  Weatheriie,  J.,  that  the  representation  \ 
was  not  made  with  tiie  intention  tiiat  tlieexeeu-  ! 
tion  creditor  or  the  .Siieritl'  .siiould  act  on  it  Ijy 
seizing  the  iiorse,  and  it  could  not  Ije  reasonalily 
inferred  that  sucii  was  the  intention  ;  and  fur- 
ther,  tiiat  the  assertion  of  plaintiff  liad  not  been 


made  l>aUliy,  but  witii  a  ijualitieution  explana- 
tory of  tiie  arraiigeinent  aiiove  referred  to,  from 
wiiicli  it  seemed  reasonaliie  that  tiie  attorney 
iiad  acted  ratiier  on  tiie  iielief  tiiat  tiie  iiorse 
could  lie  siiown  to  lie  Nicholson's  than  uiion  llie 
mere  assertion  of  plaintifl'  that  it  was  .so. 

McKay  v.  liomutt,  2  K.  &(:.,  !)ii. 


23.    Sale  of  fish,  Ac.-D.  S.  stored  a  lot 

of  tisii  with  defendants,  which  lie  afterwards 
sold  lo  H.,  giving  him  a  memorandum  iieadccl 
"  K.  Ixiught  of  1).  S."  signed  by  the  latter,  li. 
paid  half  in  cash,  and  gave  I).  S.  a  note  foi'  the 
balance,  which  was  indorsed  by  defendants, 
and  retired  liy  them  at  maturity.  ]\.,  aftei 
the  sale,  l>ecaiiie  insolvent,  and  plaintitl',  his  as- 
signee, produced  at  the  first  meeting  of  creditors 
a  slatemeiil  c,f  assets,  the  first  item  of  which  was 
"•j;{li  bills,  mackerel  stored  at  lilack  Urothers," 
defendants.  Due  of  the  defendants  altendtd 
tlie  ineeling  and  saw  tiie  statement,  remarking 
to  those  present  tliat  he  was  not  aware  of  any 
fish  of  H.'s  storeil  with  tlieiii,  inil  he  gave  no 
sucli  intimation  to  the  assignee  or  inspector, 
and,  long  after,  tlie  defendants  maile  a  chiim  on 
the  estate  for  tiic  anioimt  of  the  note,  stating 
that  tiiej'  held  no  secniitj',  and  a  dividend  was 
[laid  them.  The  assignee  having  Ijrouglit  an  ac- 
tion of  trover  for  tiie  fish,  recovered  a  verdict. 
//(/(/,  that  tile  defendants  had  no  right  to  re- 
tain the  fish,  no  claim  of  lien  having  liceii  set 
up,  and  that  by  holding  the  note  and  claiming 
for  the  amount  on  the  insolvent  estate,  tliey 
would  have  lost  all  right  to  retain  possession  of 
the  tisli,  if  they  hail  ever  had  any  such  riglit. 
llail,  Afitiiiiid ,  v.  Trooji  tt  rt/.,  '2  K.  tV:  (i.,  351; 

2C.  L.  T.,  !).->. 

Oil  ((jijKii/  lo  Ihi  Siijirnni  C'oiir/  of  Canada. 

Ill  Id,  Strong,  d.,  i/iiiiutiiiij,  that  the  ajipel- 
lants  having  failed  to  prove  the  right  of  properly 
ill  themselves,  upon  wliicli  tliey  relied  at  the 
trial,  the  lespondciit  had,  as  against  the  appel- 
lants, i.  right  to  tile  immediate  possession  of  the 
fisli. 

•J.  That  S.  had  not  stored  tlie  fish  witii  ap- 
pellants by  way  of  security  for  a  debt,  due  by 
liiin,  and  as  tlie  appellants  had  knowledge  tliat 
the  fish  sued  for  were  included  by  tlie  insolvent 
in  tlie  statement  of  his  assets,  to  wliicli  state- 
ment they  made  no  objection,  but  proved  against 
the  estate  for  the  whole  amount  of  insolvent's 
note,  and  received  a  dividend  thereon,  tliey 
could  not  now  claim  tlie  fii^h  or  set  up  a  claim 
for  lieu  tliereoii. 

7'roo/t  V.  Ha7'f,  7  S.  C.  K.,  Sl'i; 
2C.  L.  T.,  2o\. 


1)81 


TRUST. 


1582 


24.   Stoppage  In  transitu  -PlalntllTs,  mcr- 

cliiuil.s,  doing  liiiMiiiit.sM  in  Bostmi,  U.  S.,  siiippoil 
II   i|Uiintity   cif   nil    to  A.  it  Co.,  iiiurL'liiinls  in 
Hiilifiix,   \.  S.     liotwuL'ii  lliu  slii])inent  of  tlic 
oil  iuitl  itH  iiirival  at  tlic  hitter  port,  A.  &  Co.  : 
lit'Liimu  insolvent,  hut  previonM  to  their  a.ssigii-  I 
inent,  for  the  |)uri)o.seof  protecting  the  .-(hipiiei'M, 
luiii  without  any  intention  of  accepting  or  tak- 
ing ileliveiy  of  the  oil,  or  exerei.sing  any  contiol 
over  it  on  their  own  account,  l)y  a  custom  iiou.se 
order  made  ))efoie  the  goods  were  dischai'geil, 
transferred    the   oil,   together  with    the    bill  of 
lading,  to  (i.   it   Co.,  to  lie  held  for  and  on  ae-  | 
count    of   the   shipper.s.     The    oil    having    lieen  j 
claimed  liy  the  creditors  <if  A.  it  Co.  under  the 
assigmnent, 

l/i/i/y  tiiat  the  transitus  had  not  lieeii  com- 
))lcted,  and  tiiat  llie  stoppage  liy  (i.  it  Co.,  act- 
ing for  the  plaintitl's,  was  good. 

Itifhiirihoii  1 1  III.  v.  't'li'iiiiinj  1 1  (1,1., 

■_•  N.  S.  !).,  -.'.Sl. 


25.    Trover  for  house,  Ac.     Plaintilf,  in 

July,  INTO,  agreed  to  sell  certain  land  to  one 
lleynolds,  who  entered  into  possession  under  an 
agreement  to  pay  the  ))urehase  money  in  October, 
ISTl*.  l{eynolds  removed  a  house  to  the  land  and 
contimieil  in  |)nssi'ssicin  for  a  period  of  alioul  eight 
years,  after  wiiicli  he  left  the  land  and  sold  the 
house  to  defendant,  who  assisted  in  icmoving  it 
from  the  land.  I'lainlitl',  sulisLM|uenlly  to  the 
agi'cement  to  purchase,  executed  a  inoitgage  of 
the  ])roperty,  the  date  of  which  does  not  appear, 
but  liie  mortgagee  never  entered  into  possession. 
Tiu'  evidence  a.s  to  tlie  nature  of  the  attachment 
of  the  hou.se  to  the  soil  was  coullicting,  but  it 
had  bi'cn  occu])ied  as  a  dwelling  house,  had  a 
cellar  under  it  in  which  vegetables  were  i)rotecte(l 
from  1  lie  winter,  rested  partially  on  stone,  and 
had  a  drain  to  the  depth  of  live  feel  to  a  neigh- 
boring brook.  I'laintiir  brought  trover  for  tiie 
house,  and  the  jury  found  for  defendant. 

Ill  hi,  that  the  house  was  part  of  the  realty, 
and  on  being  severed  became  the  per.sonal 
property  of  tlie  plaintiir;  that  the  plaintiti'  was 
the  ])idper  party  to  bring  the  action,  as  the 
mortgagee  could  not  do  so  before  entry. 

.Smith,  .1.,  h<  <it(V(li . 

McDonald,  .].,  disxi  iiliti'j,  held  that  the  mort- 
gagee had  the  legal  title  to  and  constructive 
possession  of  the  property,  and  therefore  plain- 
till' could  not  sustain  the  action. 

liiyuolih  V.  Ihihmau,  'J  U.  it  (i.,4r)9; 
•2C.  L.  T., -JGl. 

2tf.   Trover  is  maintainable  b}  the  owner 

of  jn'operty  against  the  purchaser  where  a  third 
party,  to  whom  the  owner  has  given  the  use  of 


the  properly,  has  .sold  it  without  authority  ; 
the  rule  is,  that  wheie  there  has  lieen  a  misuser 
of  the  thing  lent  there  is  an  end  of  the  Itailment, 
and  trover  is  maintaiiuilile. 

SiU.'ji  v.  .W-/'i/,  "J  N.  .S.  I).,  ;{•_'.■). 

27.    Trover  wili  lie  in  this  Province  for 

minerals  which  have  been  taken  from  a  mine, 
out  of  thi.s  Province,  and  removed  here. 

(Illll'f    v.   fills  Coilljiltlll/,  ,]ni\w^,  '-. 


TRUST. 

1.  Acceptance  of     Presumption  —  The 

Court  will  not  direct  a  jury  to  presume  the 
ai;ceptanee  of  a  trust,  created  by  devise,  when 
there  has  l)een  tifty  years  adverse  ])ossession,  as 
against  the  trustees,  there  being  no  evidence  of 
such  acceptance,  and  all  the  facts  being  opposed 
to  such  presumption. 

Affhiliiihl  V,  ll/oi--,  .lames,  .SOT. 

2.  An  executor  and  trustee  who  has  by 

his  pleas  admitted  that  he  has  funds  of  the  tes- 
tator's estate  in  his  hanils,  may  lie  compelled  at 
the  suit  of  his  co-executor  and  co-trusteo,  on 
suflicient  groinids  shown,  to  pay  such  funds  into 
Court,  and  al.so  to  lodge  in  Court  all  secuiitie.s 
representing  such  f\inds. 

J)iiii/i/iy  il  al.  V.  \\'a//a<:c,  1  Old.,  liSX 

;j.    Conveyance  l)y  trustees  to  themscives 

and  others  —  Where  two  as  trustees  conveyed  to 
themselves,  and  live  others  not  trustees,  hclil 
that  the  title  was  sutliciently  conveyed,  and 
that  the  lease  niaile  liy  the  seven  could  be  held 
to  lie  the  lease  of  the  live,  who  were  certainly 
able  to  leaae. 

\hiain,  if   the  two   tiustees  eoidil   not   have 
conveyed  to  themselves  alone  as  tiustees. 
Ltssf'.t'  of  /tiijiloir  tf  al.  \.  Xof/oii,  •JTliom.,  u'S.S 

4.  Dealings  with  trust  funds    Trust  funds 

.settled  on  a  marrie<l  woman,  for  the  benefit  of 
her.self  and  children,  were  expended  by  her  anil 
her  husband  contrary  to  the  ])rovisions  of  the 
deed  of  settlement.  The  husband  afterwards 
repaid  to  the  trustee,  out  of  his  own  earnings, 
the  amount  so  expended,  but  while  repaying  it, 
he  said  that  he  wished  to  make  his  wife  a  pres- 
ent of  a  horse  and  waggon.  The  amount  so 
paid  was  drawn  by  the  husband  a  day  or  two 
afterwards  out  of  the  bank,  ami  a  checjue  given 
him  by  the  trustee,  and  a  horse  and  waggon 
bought  with  part  of  the  money.     The  articles 


1583 


TRUST. 


1584 


were  used  liy  the  wife,  iiiid  iiIbo  liy  the  huHhiiiid 
(who  was  a  phytiieiaii),  in  his  jiruclice. 

One  witness  said  tliat  tiie  horse  and  wajigon 
were  placed  in  his  diarge  hy  tlie  wife,  witli  in- 
structions not  to  give  tliem  to  her  husliiind 
without  her  onlera,  whicli  instructions,  lie  (wit- 
ness) said  he  olieyed. 

IhUI,  that  the   horse  and  waggon  were  not 

trust  property,  but  the  property  of  the  husliand, 

and  coidd  he  taken  on  an  execution  against  him. 

<ii/jiiu  V.  Hairyir,  1  Old.,  ">,S4. 

5.  Dealings  with  trust  property  -  Caleb 

I'utnani  conveyed  a  lot  of  land  to  the  persons 
named  in  tiie  deed,  for  the  purpose  of  liuilding 
a  I'reshyterian  church  and  for  a  burial  ground, 
to  hold  to  the  said  grantees  for  the  aforesaid 
purpose  only. 

Hdd,  that  e\en  thougli  the  grantees  unani- 
mously concurred  in  changing  the  use  of  tlie  prop- 
erty from  that  of  a  Presbyterian  church,  &c., 
such  change  coidd  not  be  etl'ected,  but  the  prop- 
erty, on  being  applied  to  other  uses  than  those 
for  which  it  luid  been  conveyed,  would  revert. 
Dowihi."  it  «/.  V.  //(lifts  it  al.,  R.  E.  !>.,  147. 

6.  Executors— Relieving  and  appointing 

others  —  Where  some  of  several  co-executors 
apply  to  be  released  from  the  trust,  the  Court 
will  re(iuire  other  co-e.xecutors  to  be  brougiit 
before  the  Court  ))efore  tiiey  will  refer  it  to  a 
Master,  to  report  on  suitaldeness  of  persons  to 
be  substituted. 

In  the.  Esialt  of  Tohiii,  2  Thoni.,  3.38. 

7.  Grant  to  Township  or  land  for  school- 
Charitable  trust — Acceptance  of,  by  trustee- 
Discretion  of  trustees— Doctrine  of  cy  pres- 


ets SCHOOL  LAW,  7. 
8.    Instrument  creating  trust  — Thos.  S. 

Crow,  an  ordained  Presbyterian  minister,  and 
David  and  Jacob  Frieze,  Presbyterians  and  mem- 
l)er8  of  his  congregation,  purchased  a  lot  of  land 
in  185.3  for  the  purpose  of  building  a  house  of 
worship,  and  for  a  burial  place  for  that  part  of 
the  congregation  residing  in  its  neighborhood, 
and  having  erected  at  their  own  cost  a  place  of 
worship,  and  fenced  in  the  land,  conveyed  the 
land  and  building  in  1854  to  W.  McDonald  and 
other  persons,  thirty  in  number,  by  deed  in 
which  it  was  stated  that  the  land  had  been  pur- 
chased for  a  Presbyterian  church  and  cemetery, 
and  that  the  grantors  had  agreed  to  sell  the  land 
and  church  on  the  same  terms  .and  for  the  same 
use  as  they  held  them.  The  deed  proceeded  to 
convey  to  the  said  thirty  persons  in  fee  simple 
thirty-eight  forty-fifths  of  the  land  and  buildings 


(reserving  seven  forty-fifths  to  Ihcgrantors)  to  be 
hchl  in  common  by  tiie  grantees,  but  as  separate 
and  sole  owners  of  the  pews  on  which  tiieir 
names  were  recorded  on  a  plan  annexed.  'I'lic 
persons  to  whom  the  deed  was  given  were  then 
Presbyterians,  and  Mr.  Crow  was  a  minister  of 
that  church,  and  after  he  ceased  to  othciate,  a 
Mr.  McLellan,  who  had  been  his  colleague  and 
succeeded  him,  otUciated  there  until  1871.  He 
was  a  regularly  ordained  minister  of  the  Presby- 
terian church,  but  alxiut  that  time  charges  were 
preferred  against  him  by  his  congregation.  He 
first  appealed  to  the  Synod  at  Truro,  but  after- 
wards intimated  that  he  had  joined  the  Coiigre- 
gationalists  and  was  thereuptjii  deposed,  some 
of  tiie  congregation  seceding  with  him.  The 
■•  plaiiititi's  (as  I'resbytcrians)  and  the  defendants 
(as  Congrcgationalists),  each  claimed  the  exclu- 
sive right  to  the  lot  of  land  and  building. 
I  Iltkl,  that  the  intention  of  the  parties  being 
!  clear  and  uneijuivocal,  that  the  house  of  worship 
I  was  to  be  for  the  use  of  Presbyterians,  the  Court 
must  carry  out  that  intention  and  could  not 
recognize  the  riglit  of  the  defendants,  even  if 
C(ini|)rising  a  majority  of  the  congregation  to 
defeat  such  intention,  tliougli  it  might  l)e  otiicr- 
wise  if  tiic  congregation  were  unanimous. 
MvJJoiiiiul  tt  ul.  V.  Ilauxii  (-t  al.,  K.  E.  D.,  147. 

9.  Liability  of  trustee  for  investment  —A 

testator,  by  iiis  will,  devised  and  beijueathed  his 
real  and  personal  estate  to  his  wife  and  another, 
executrix  and  executor,  in  trust,  to  sell  the 
same  and  invest  the  proceeds  in  the  best  secur* 
ities  they  could  obtain,  and  upcm  the  coming  of 
age  of  the  testator's  children,  to  divide  tlie 
money  among  the  children  and  the  widow,  in 
specified  proportions.  The  executor,  v/ith  the 
consent  and  ac<iuiescence  of  the  widow  and  exe- 
cutrix, loaned  a  part  of  the  trust  funds  to  mer- 
chants engaged  in  ship  building,  wiio  afterwards 
became  insolvent  and  unable  to  repay  the  money. 
//eld,  that  the  trustees  were  not  justified  in 
investing  the  money  on  personal  security,  and 
must  make  good  the  loss  to  the  children,  but 
that  the  widow  could  not  make  the  co-trustee 
liable  to  her  for  the  loss  she  might  sustain,  hav- 
ing acquiesced  in  the  investment. 

\  Perky  el  al.  v.  Snow  el  al.,  R.  E.  D.,  373. 

I 

10.  Liability  of  trustee  for  investment- 
Trustees  were  sought  to  be  made  personally  liable 
for  a  sum  invested  on  mortgage,  on  the  ground 

I  that  they  had  invested  on  a  second  mortgage, 

'  and  on  property  of  which  the  mortgagor  only  had 

i  title  to  a  part.     Before  making  the  investment 

the  trustees  had  been  advised  by  their  solicitor 

as  to  the  value  as  well  as  the  title,  the  solicitor 

considering  it  a  first  rate  security.     The  whole 


1 580 


TRUST. 


1)86 


pnipiirty  was  valiifil  iit  S.'siMM),  ilu-  lirst  iiiint-  '  «l'i'li  would  l.u  protcctud,  ami  riglit.i  which 
gago  ainoiiiitf.l  to  only  .■:!l,l.'IK»,  and  the  iiioit-  "ould  l>f  .niforuud  liy  tho  ( 'ourt. 
gaf,'or'.t  iiitertist  in  tho  leniainiiii,'  S'A,SW  ua.s  ,  (-'.)  That  tho  wonls  used  in  tho  lU'fds  "  triis- 
two-thiids,  amounting  to  S'_',.'.,T.',  leaving  a  mac-  ,  ''^''-''"  &*;•.  justitii-d  a  It-gal  infiMvuce  of  knowledge 
gin  of  !i|,l7l)overandaliove  tlie  amount  loaned  '"•  l'""  I'i'it  of  the  plaint  ilT  of  the  existence  nf  tli.' 
Iiv  the  trustees.  tiiisl  for  tlie  henetit  of  A.  M.  ('.,  which  placeil 

/Mil,  that,  even  if  the  security  was  not  lirst    ^hc   plaiulitl',  with  respect    to  tiie  rigiits  ..t   the 
class,  the  trustees,  having  lielicved  ii  to  I.e  good,     int'i'".  'n  "o  lielter  position  than  the  trustee, 
could  not  he  held  liers.mally  lial>le  for  delieiency.  ^        ''''^  appeal  was  allowed. 

4iii  K.  S.,  c.  KtS   s.  •J4.  I'ifr/i  V.  (Jiirrii  tl  ft/.,  7  R.  &  (i.,  .">!?•_'  ; 

li(   /■'  Chn^i  Cluirrh,  /Jiir/minifit,  R.  K.  I).,  4(m.  I  ^  ^'-  '-  '•'••  •"'"■ 


13.    Possession  of  trustees  iippolntcd  by 

Act,  held  pos.se.s.sion  of  <<v//(/.,  i/in  inti'iiii  —  In 
.Vugust,  ITSS,  \V.  Freeman,  in  eoii.sideration  of 
a  liuilding  to  he  erected  for  a  Court  House 
anil  .lail  at  Amherst,  conveyed  certain  land  to  a 
iinnilier  of  .Justices  of  the  I'eace  for  the  t'ouitty, 
naniud  in  the  deed,  and  their  associates  ;  hahiii- 
iliiiii  to  them  and  tiieir  successors  in  trust  for  the 


II.    Trustee,  liability  of-l'mvisioii  in  a 

will   that   defendant  sliould   hold   laml,  iVc,   ill  , 
trust  to  cidtivate,  demise,   let  and  manage  the 
same  to  the  hest  advantage  for  testators  daugh-  ^ 
ter,  without  impetiehnient  of  waste,  j 

//'/(/,   not   to  exonerate  the  trustett  from   re-' 
spou.sihility  for  wasting  tiie  trust  property,  hut 
simply  to  empower  him  to  do  "such  acts  as  he  i 
eouhl  do  if  a  tenant  who  was  not  acc.mntahle    •'"""^3'   '>f   <-'umherland    forever.      'I'he    Act  of 
for  waste. '"  IsfS,  c.  "28,  after  reciting  the  cxccLition  of  this 

//>/</, /iir/h<r,  that  the  trustee  imder  such  de-  'l''^''''  ^''"  I'lii^'ti""  of  the  Court  House  ami  .lail, 
vise  was  not  ol.liged  to  work  a  mill  ..n  the  trust  '""^  '•''^"  ''^■'^'-''  "^  *''^'  trustees  mimed  in  the  deed, 
property  ;  ami  that  if  the  trustee  was  muil.le  to  "'liK-'H^'l  I'l'i'l  the  (irand  .lury  and  .Sessions  should 
procure  a  snitahle  tenant,  he  ought  not  to  !,„  ,  iipP"'"'' ti">"*tccs,  to  he  a  hody  corporate  hy  the 
held  answerahle  for  tiie  unpfo.lucliveness  of  the  : '"""«  "f  "  tl'i^  Trustees  of  the  Amherst  Court 
pioiiertv  House    grounds,"    in    whom    was    to    vest    the 

H,/<l,/„r/h,r,  that  the  defendant,  in  selling  •'■^'•^1  ^^«''^t^^  '"  l'"'  '■''"'  '"  'li'i-^t'"".  piovide.l, 
the  grass  uncut  at  auction,  in.stead  of  making  it  '"»""«  "ther  things,  tiiat  the  Act  sliouhl  not 
into  hay  and  storing  or  di.sjiosing  of  it  as  such,  i"tcrfere  with  the  management  and  cntrol 
had  i.ursue.l  a  course  wliicli  lie  was,  under  the  tl>i-'i'^'>f  ''«'"g  vested  in  the  Sheritr  for  the  time 
circumstances,  at  liherty  to  mlojjt.  i  '"^'"«-     '1''"'*  ^""^  continued  for  six  years,  hut 

Vtrnon  ttal.  v.  S,:cman,  R,  !].  ]).,  HHJ.  ' '>'-'f"''«  '^^  cxpirati.m,  the   lirst   edition   of   the 

Revised  .Statutes  was  puhlished,  which  hy  c.  !)7, 
provided  for  the  appointment  of  "Trustees  of 
I'uhlic  I'roiierty,"  in  each  C'ninty,  and  vested  in 


I'i.    Mortgage  eirected  by  trustee  on  pro- 


perty o(  rciliti  <]ni  frii.if — Suit  to  recover  bal-  such  trustees  "all  lands  granted,  reserved  or 
ance  due  —  Notice  of  trust  to  mortgagee,  dedicated,  (.r  which  had  for  twenty  years  hefore 
effect  of — Jn  a  suit  in  the  Ki|uity  Court  to  the  passing  of  said  chapter  heen  used  for  piddic 
recover  a  halance  claimed  hy  plaintitlas  due  on  purposes  in  tiie  County."  The  .Statute  con- 
a  mortgage,  judgment  was  given  in  that  Court  taincd  a  clause  declaring  that  the  jnovisions  of 
in  plaintirt's  fav<jr.  On  ap[)eal,  it  appeared  ,  that  chapter  "should  not  affect  any  lands  or 
tiiat  the  defendant,  J.  C,  had  received  a  sum  of ,  ))uihliiigs  then  vested  in  trustees,  or  the  neccs- 
money  helonging  to  his  infant  son,  A.  M.  C,  to  j  sary  control  of  the  ISheritf  over  the  Court  House 
invest  in  real  estate.  He  apprijpriated  a  con- |  and  Jail."  This  .Statute  was  re-enacted  in  each 
sideralde  portion  of  the  money  so  received  to  successive  edition  of  the  Revised  .Statutes, 
other  purposes.  .Subsequently  he  purchased  a  !  Sheriff  Chandler  luul  held  possession  of  the 
property  from  McD.,  taking  the  deed  to  it iiu- ,  property  as  .Sheriff,  and  his  son  had  paid  rent  for 
self  as  "  trustee  of  A.  M.  C,  of  the  City  of  H.,  ,  it  up  to  18.")1,  and  on  the  appointment  of  the 
an  infant."  For  the  purpose  of  raising  the  pur-  I  defendant  as  .Sheriff,  late  in  18.")S  or  early  in 
chase  money  of  the  property  so  bought,  he  gave  i  18,")9,  he  ha<l  taken  possession  from  the  son  of  the 
a  mortgage  to  the  plaintiff,  in  which  he  described  ,  former  .Sheriff.  Defendant  also  claimed  under 
himself  as  "  trustee  of  A.  M.  C,  of  the  City  of  a  deed  from  Chandler,  the  former  Sheriff,  but  it 
H.,  an  infant."  appeared  that  in  18(i"2  he  had  voluntarily  accepted 


Hfhl,  (1.)  that  as  between  the  trustee  and  the 
ccMui  que.  trmt,  the  deed  to  the  former  gave 
the  latter  an   interest   in   the  laud   purchased 
53 


otiice  .as  one  of  the  trustees  of  public  property, 
and  acted  as  such  until  1875. 
Hdd,    that  the  moment  the  Act  of  18-18  ceased 


1587 


TRUST. 


loss 


to  have  cffeut  the  liiixl  vi'sted  in  tlie  trustees 
appointed  under  Revised  Stiitutes,  Ist  series 
(1851),  and  tlmt  apart  from  tlie  effect  of  tiie 
Revised  Statutes  of  I8,')S,  vesting  tlie  property  in 
the  trustees  subseciuently  a|)pointed  within 
twenty  years  of  the  eomnieneenient  of  tlie  action, 
tlie  phiintiffs  liad  not  lieeii  twenty  years  out  of 
possession  at  tiie  commencement  of  the  action, 
as  the  possession  of  tiio  defendant  and  ids 
associate  trustees  from  ISti'J  to  187."),  was  tlie 
possession  of  the  plaintiffs.  Jfdnder  of  the 
Trustees  of  the  Amherst  Court  House  grounds,  ' 
addeil  undcran  amendment  ohtaincd  at  the  trial, 
hdil  mere  surplusage,  i 

Thi'  'JViix/if  of  Pulilic  i'ropi  r/i/fof  thr 
County  of  Cnmhn-laud  v.  AVer,  .S  R.  &  C. ,  317; 

1  C.  L.  T.,  708. 

14.  Possession   of  trustee  —  Cestui  que 

truxl  —  The    adverse    possession    of    a    widow 

cfMui  qm   truxl  as  against  the  trustees  will  enure 

to  the  lienetit  of  lier  children  lieiug  also  Cdilui'i 

qui   trwlbiil,  and  cannot  he  set  up  against  their 

title. 

Archiliit/d  v.  />Vo/'<,  .James,  .S07. 

15.  Kenunclation-A  trust  once  accepted 

will  lint  lie  presumed  to  have  been  suiiendercil 
during  the  life  of  a  party  previous  to  whose 
death  the  trusts  cannot  he  fulHlled. 

Kmhru  V.  Dixon,  .James,  .S'2G. 

16.  Resulting  trust -Plaintiff,  in  his  bill 

or  writ,  set  out  that  .John  Blair  granted  certain 
lands  to  defendant  by  deed,  which,  though  ab- 
solute in  its  terms,  was  given  to  secure  i*(iOO,  i 
advanced    by    defendant    to    creditors    of   said 
grantf>r,  and  that  defendant  at  the  execution  of 
the  deed  promised  to  reconvey  to  the  grantor  ■. 
on  payment  within  three  years  the  amount  due  ;  i 
that  the  estate  of  the  grantor  had  become  vested 
in   plaintiff,   who   had   tendered   the  .*600  and 
offered  to  pay   any   balance   found   to   be  due 
defendant,  who  refused  to  accept  the  money  or 
execute  a  deed. 

Defendant'.s  answer  set  up  a  parol  trust  to  pay 
in  full  a  debt  due  by  the  grantor  to  defendant, 
and  apply  the  surplus  ratably  among  five  other 
creditors  ;  that  the  amount  thus  due  was  more 
than  the  ^600  tendered,  and  defendant  offered 
to  reconvey  the  land  on  payment  of  the  debts  as 
security  for  which  it  was  given.  A  memoran- 
dum, signed  by  the  grantor,  was  delivered  to 
the  defendant  at  the  time  of  the  conveyance, 
witnessing  that  "the  sums  attached  to  the  fol- 
lowing names "  (the  five  creditors  referred  to 
iu  defendant's  answer)  "  are  included  as  the 
consideration  money  of  John  Blair  to  Robert 
Chambers." 


The  creditors  referred  to  were  at  the  time 
pressing  Rlair  for  jiayment,  and  gave  him  lime 
in  consideration  of  this  conveyance.  The  claims 
of  several  of  them  were  bought  at  a  rediu-cd 
rate  by  Hlair's  son-in-law  in  Hluir's  interest. 

Hdil,  that  there  was  a  consideration  moving 
from  the  several  creditors  named  in  the  memo- 
randum to  Blair,  and  a  resulting  trust  in  favor 
of  all  the  said  creditors  ;  that  parol  evidence  of 
this  trust  cf>uld  be  given  consistently  with  tiic 
Statute  of  Frauds;  and  that  defendant  held  tiie 
land  in  trust  for  the  payment  of  IiIh  own  debt 
and  the  debts  of  the  other  creditors  at  tlieir  full 
amount,  notwithstanding  the  luirchase  of  the 
same  for  a  reduced  sum,  which  was  held  to  be  a 
matter  solely  between  those  creditors  and  their 
assignee. 

Pttiie  V.  Chamh,  ):■<,  I  R.  &  (1.,  •_>;{•.'. 

1 7.    Revocation  of  trust — Where  personal 

pi'fiperty  is  assigned  honalidi  to  pay  a  debt  due 
the  trustee,  who  accepts  the  trust,  its  rcvocatinn 
may  be  implied  from  subsciiuent  conduct  of  the 
parties  wholly  inconsistent  with  the  trust. 

Fdlfomr  V.  Sdinji  r  il  a/.,  ,Iames,  "277. 

IS.    Sale  of  land,  «kc.— Where  a  bargain 

was  entered  into  between  the  plainlitl'  and  de- 
fendant, for  the  sale  of  lands,  and  the  defendant, 
after  ])ayiiig  a  moiety  of  the  purchase  money, 
(piits  the  country  without  completing  his  pur- 
chase, leaving  the  plaintiti'  in  possession,  and, 
in  his  absence,  the  plaintiti'  takes  out  proceed- 
ings as  in  foreclosure  of  mortgage,  under  which 
the  property  is  sold  and  bought  in  by  him  for  a 
much  less  p;  ice  than  the  original  purchase 
money,  and  soon  afterwards  re-sold  to  third 
parties  at  a  large  advance, 

JIt/il,  in  an  application  by  defendant  to  be 
allowed  to  come  in  and  defend,  that  he  is  en- 
titled to  relief  in  e(|uity,  and  that  the  plaintitr 
must  be  considered  as  his  trustee,  and.  as  such, 
bound  to  account  to  him  for  the  profits  arising 
from  such  re-sale. 

Spurr  v.  Elderk-in,  Cochran,  47. 

19.    Trustee  to  sell— Purchase  by— When 

permitted— Action  to  recover  advance  at  re- 
sale— Limitation  of  action — Pleading— Plain- 
tiffs having  appointed  defendants  their  agents 
for  the  sale  of  a  vessel  of  which  they  were 
desirous  of  disposing,  defendants  offered  the 
vessel  for  sale  at  public  auction,  at  which  she 
was  knocked  do«Ti  to  Paint  one  of  the  defen- 
dants for  the  sum  of  £800,  who  a  few  days  after- 
wards re-sold  her  at  an  advance  of  £300,  which 
he  appropriated  to  his  own  personal  benefit. 
Prior  to  the  sale  at  auction,  defendants  received 
two  offers  for  the  purchase  of  the  vessel,  one  of 


1589 


VENDOR  AND  PURCHASER. 


1590 


an  uinouiit  tMjual  to  tlwit  piiiil  liy  I'liiiit,  ami 
anotlier  of  tTiO  more  tliaii  tliiil  anioiiiit.  Tliu 
previous  offers  were  not  <;oiiiinmiieateil  to  plain- 
tiffH,  one  of  whom  w.ts  jireHeiit  at  llie  auction 
sale  and  niailo  no  olijection  thereto,  A  settle- 
ment waH  had  with  ))laintitrs,  Imt  witlioiit 
knowledge  on  their  jiart  either  of  the  Hale  made 
liy  I'aint  or  of  the  previous  otliMs.  I'lainliirs 
three  ('arH  after  t)ie  sale  to  I'aint,  eommenied 
proceedings  to  compel  payment  of  the  amount 
realized  hy  him  on  the  re-sale  of  the  vessel  with 
interest. 

IIilil,  (1.)  tliat  I'aint  lieinga  trustee  to  sell  the 
vessel  eoiihl  not  he  permitteii  to  huy  without 
lirst  receiving  from  every  one  of  his  nxhiii  qun 
/ruxtnit,  v\vi\v  and  exjilicit  authority  to  divest 
himself  of  the  trust  ami  liocome  a  purchaser  of 
the  trust  jn-operty. 

(2.)  That  this  was  a  case  in  whicli  the  Court 
would  not  reoogni/u  a  liar  sliort  of  tiie  slatulaMe 
period  of  six  years. 

(3.)  That  if  the  plaintiffs  were  deharred  fi'oni 
bringing  their  action,  it  was  for  tlie  defendants 
first  to  plead  it  and  secoiul  to  estalilish  it 
affirmatively  by  facts  proved. 

Sfinhlc,  that  the  suppression  by  I'aint  of  liic 
fact  of  the  rece]iti<iii  of  ilic  previous  oilers  was 
of  itself  siitlicient  to  <lccide  liic  ca.M!  for  tlie 
plaintiffs. 

I'i.<h  •!  at.   V.  Fi-d.^ir  il  III.,  .'{  N.  S.  )).,  TA^. 


defendant  had  to  remove  the  machinery  was  in 
Sejitend)er,  INTO.  The  machinery  was  removed 
in  Ki'lirnary,  iSMd,  but  the  County  Court  .hidge 
held  that  the  agreement  lietween  plaintiff  and 
ilefendant  being  contingent  and  having  fallen 
through,  plaintiff  was  entitled  to  recover  for 
the  whole  period,  and  he  allowed  .'SlJlHt. 

//>/(/,  tiiat  tlie  plaintitl' could  only  recover  for 
the  period  after  the  agreement  fell  through; 
that  the  aii]ieal  must  be  sustained  and  judgment 
entered  below  for  plaintitl'  for  8H().(K)  for  the  use 
of  till.'  premises  from  Septcndier  to  February, 
being  at  tiie  same  rale  allowed  liy  tiie  County 
Court  .Jiulge. 

JJriiiiKiii  V.  Jui'L',  .'{  K.  &  (!.,  .'i(iH. 

2.    Xon-Jolndrr  of  tenant  In  common  as 

plaintiff  in  action  for  use  and  occupation  — 
Mesne  proftta— 

Set  PRACTICE,  l..!». 

S.    ^Vlinrf    PlulntlfT  brought  suit  for  use 

and  occupation  of  a  wharf.  I>cfendanl  pleatled 
never  indebted,  and  gave  eviilence  tliat  part  of 
the  wliarf  was  liuilt  on  a  pulilio  landing  over 
whiih  tlie  pulilic  iiad  for  a  long  period  been  ac- 
custonicil  to  p;i>s  for  ^\\^■  purpose  of  landing  lish 
from  their  lioals.  Defendant  contended  also 
tliat  plainlitr  could  not  build  a  public  wliarf 
without  Icive  from  t'n'  Crown.  The  .fudge 
cliaigcd  foi  plaintiff  and  tlie  jury  found  foi  de- 
fendant, but  tiie  verdict  was  set  aside  with  costs. 
I.'niil-'uii  V.  Cniijh'nit  It  n/.,  3  R.  &  ('..,  290. 


'    4.    Where  a  vendor  lets  a  vendee  Into 

I'SAUEi  possession  of  lands  on  a  contract  which  after- 

wards goes  off,  he   ciinnot  recover  for  use  and 

1.    Evidence  of  a   usage  contrary  to  a  occupation. 

settled  principle  of  hiw  is  not  admissible.  •  y,  ,„^,/,  ,/  nl.  v.  McDonald,  2  Old.,  155. 

Hardy  d  a/,  v.  FalrlidiiLi  it  nl.,  .Tame-i,  V,\'l 


2.    How  proved 


^  I  SUIPPINti,  .vs- 
EVIUEXCE,  119. 


USE  AND  OCCUPATION. 
1.    Action  for,  when  premises  occupied 

under  proposed  agreement  which  fell  through 
— Plaintiff,  brought  action  for  use  and  occupa- 
tion of  premises  by  defendant  who  was  assignee 
of  one  McCleeve.  The  alleged  use  consisted  in 
allowing  machinery  of  the  insolvent  (McCleeve) 
to  remain  on  the  premises.  Plaintiff  had  re- 
quested the  defendant  not  to  sell  the  machinery 
by  tender,  stating  that  he  would  make  a  better 
offer  than  any  one  else  :  and  the  first  notice  that 


USURY- 
S"  INTEREST  0\  MOXEF. 


VENDOR  AND  PURCHASER. 
Covenants  binding  on  purchasers— Lands 

never  to  be  sold— A  deed  of  conveyance  con- 
tained an  agreement  tliat  certain  laud,  described 
in  the  deed,  should  "  never  be  hereafter  sold, 
but  should  be  left  for  the  connnon  benefit  of  both 
parties  and  their  8ucce.s.sors."  In  asuit  brought 
to  compel  the  removal  of  a  house  alleged  to  have 
been  built  on  the  land  m  contravention  of  the 
agreement, 


loUl 


VKRDICT. 


l.'.Di 


llilil,  tliiil  tin,'  aj,'iot'iiiiiil  wii.s  oni'  the  |icrl'i>i- 
miinut!  (if  wliiuli  iniHlit  lie  cnfiiircd  in  cciuiiy, 
because  (/ii  tin;  tniu  const nicl  imi  i)f  it.i  terms  it 
ainoiuilcd,  imt  ton  |ici'iM'tuiil  icatiicliitn  of  .sulu, 
but  til  an  ugi'fL'nn'iit  on  tlit-  inirt  of  tliu  grantor 
to  leave  tlie  land  in  the  stale  in  uliicli  it  was  at 
the  time  of  tlit^  conveyance  ;  and  liccanse  the 
iigl'eeniont  ciintumplated,  not  an  umertain  and 
indelinite  use  of  the  liind  hy  the  iiartics,  liul 
tliat  the  land  .siiould  lie  left  o|ien  for  the  udvim- 
tiige  of  the  [laities  as  adjoining  proiirietors. 
Ciiri  jiorfi'il  '"  /'<(''. 

Mrl.fiiH  V.  MiKfiij,  L.  K.,  "i  I'.  ('.,  .T_'7; 

•-'!iL.  T.,  ;<:>•-'. 

•SV,,., /.so,  SALE. 


VEXIRE  DE  \0V0- 
S"  tKIMIML  LAW, -I 


VEM  E  - 
.St,  TKIAL. 


•'>.    Criminal    Power  or<'ourl  to  !ti>t  iiKlde 

Verdict  ip  criminal  case 

v     (KIMINAIi  LAW,  -'« 

((.    EJceliiu'iit    Yerdkl  lor  u  purt  of  llic 

laml  claimed   in  ejeiliiient,  s|iecifying  the  |iai  t, 
■  is  good, 

I  Mfjhiiiulil,  1 1  (il.  y.  Mi/)oii(i/il  !■>  III., 

I  1   K.  \  C.Wl. 

j     7.    Equity    Imniios  In    Tli«  priutlcc  oftlie 

'  Sniiremu  Court  on  the  connnon  law  side  in  rela- 
tion to  .settin).' aside  Verdicts  and  granting  new 
trials,  is  pccnliaily  apiilicalile  to  the  trial  ot 
issues  in  ei(nity.  on  circuit,  and  a  party  dissatis- 

!  lied  with  a  verdict  in  an  ei|uily  suit,  tried  on 
i^ircuil,  slwiuld  apply  to  ihe.ludge  lietore  whom 
it  \»as  tried  for  a  iiile  «/<(,  or  in  the  evt'Ut  of  his 
refiisinij;  a  ride,  should  lake  it  out  under  the 
Statute,  and  cannot,  haviiii;  iiiuored  that  prae- 
tice,  move  the  Ivpiity  Court  at  Halifax  lo  set 
aside  the  veiiliet. 

Cli'/iiiiiiii  V.  (i'<ir(t:(i  if  III.,  11.  K.  |).,-ti. 

H.  Evidence  conflicting  Where  conflict- 
ing evidence  was  given  on  a  i|Uestion  of  negli- 
geiu'c,  and  a  general  veidicl  was  found  for  the 
lilaiiitilV  the  Court  refused  to  dislurli  it. 

Wooil  V.  Allnii,  .•{  n.  it  <!.,  -Jll. 


VEKIUCT. 

I 

1.  Consent  verdict  -  Questions  of  fact 

treated  as  settled—  At  the  trial,  after  conHict- 
iiig  evidence,  a  verilict  was  taken  hy   consent  | 
for  defendants,  with  jiowcr  to  the  Court  to  set ' 
it   aside    and   enter   a    nonsuit  or    verdict    the 
other  way. 

Jltld,  that  all  questions  of  fact  must  lie  treat- 
ed as  settled  in  the  proper  way  liy  the  verdict. 

McAIuUeu  V.  Kcudrirk  i.l  uL,  5  R.  &  (J.,  308. 

2.  County  Court— Verdict  of  Jury  In  that 
Court — 

See  STATUTES,  NOVA  SCOTIA, 

43  Vict.  (1880),  c.  '2,  8S.  51,  5'i,  &e. 

3.  Court  can  alter  verdict  In  order  to 

give  it  its  legal  efFeot. 

Cochran  v.  Chi/iman  et  al.,  '2  R.  &  C,  254. 

4.  Criminal -Authority  ofCourt  In  banco 

to  enquire  into  validity  of  objections  taken  at 
trial  on  behalf  of  prisoner  and  overruled— 
Prisoners  jointly  indicted — 

Set  CRIMINAL  LAW,  1. 


1».    Evidence     Inipntper  receiition  of  - 

Ett'ect  A  verdict  will  not  lie  invalidatcil,  hy 
the  improjier  reee|ition  of  evidence,  when  there 
is  suHicient  additional  evidence  to  sustain  it. 

/,'»«(//  V.  Miirxhnll,  .James,  .'i.'JO. 

10.  Evidence  -  Question  of  fact  — Tiie 

(luestion  in  this  ca.se  was  simply  one  of  fact,  ami 
the  jury  having  found  for  the  plaintiff',  the  Com  I 
refused  to  set  the  verdict  aside. 

O'Mullui  i:t  al.   V.  J/cDonnlil  it  al., 

1   M.k  C.,  4ti. 

11.  Evidence-Question  of  fact  -  Where 

the  question  at  i.ssuu  was  purely  one  of  fact, 
involving  no  legal  points  whatever,  and  tiie 
Judge  left  the  whole  charge  open  to  the  jury, 
who  found  for  the  plaintilT, 

Htld,  that  the  verdict  could  not  lie  disturlieil. 
Lyou  V.  Morton,  3  N.  S.  1).,  4.'i!l. 

12.  Evidence,  rejection  of— Where  cvi> 

I  deuce  is  rejected  at  a  trial,  the  Court  will  imI 
set  aside  a  verdict,  if,  had  the  rejected  evideiicu 
been  received  and  a  verdict  found  in  favor  of 
the  party  offering  it,  that  verdict  would,  have 
been  clearly  against  the  weight  of  evidence. 

Allan  V.  Pttera  el  al.,  1  R.  &  C,  365. 


loon 


VERDICT. 


15!)4 


13.    Evidrnre  -  Vonlict  iiKiiliist     I'liiln*   tiu'  wcighi  of  cvi.i.im'i'  lingdy  pripoiKiniiirM 

till'M  <liiim('il  title  to  a  ixTtiiin  lot  of  liiiy  cut  liy  j  (tgiiiiiHt  it, 

tliciii  miller  an  M),'reeiiieiil  eiitereil  into  by  tlieiii  I  Dnrnr  v  /'mn/i'ii,  '2  N.  S.  1).,  jOL', 

with  one    McK.,    ilateil    IStli  June,    1S()7.     No  j 

cviiiejiee  wuH  Kiven  of    McK.'s   I'i^'hl  to  sell   thi'  10.        EXfOMHlVC         AKIlilINt     evIdCnCO     tiltA 

^.'lUNs  or  hay,  oilier  I  liaii  the  lux'Nunipliou  aii.siui;  ;  charge  of  Jiuljje  Where  a  veiiliri  is  foiiml 
fnun  his  hiiving  long  licuii  ami  then  heiug  in  i  against  the  eliarj^'e  of  the  .linlKe,  and  the  uin'ou- 
oeeiipiil ion  of  the  lainl.  Defeinliinl  iiroilneed  t lailiileil  eviilence  of  the  only  witiie.sM  exiiniiuud 
an  agreement  daleil  Slii  .lune,  lH{i(l,  with  MeK.,  nt  thi!  tiial,  for  a  larger  anioinil  than  the  evi- 
reeitiiig  that  MeKay  and  wife  liacl  that  day  denee  warrants,  the  t'ourt  will  either  order  a  new 
lonveyecl  to  defeiidanl  the  laiiil  on  «hiehllie  trial,  or,  if  the  ])laiiititT  eon.seut,  reduee  the 
grass  grew,  and  gave  evideiiee  of  having  reii:ived  '  damages  to  the  suni  warianted  liy  the  evidence, 
a  ileed  of   the  same  hearing  the'  same  date,  liul  1  It'L^sir  if  iil .  v.  Iliii'  il  lil.,  I  Old.,  7-7. 

did   not    produce  any   deed,  and  iil.so  gave  cvi-  | 

.leiioe,  mieontradieted,  tiiiit  ho  was  put  in  jioh-  20.  Exct'.SSlVC  KoilllttllUr  Wlicrc  il  TCr- 
session  on  the  !ltli  .June,  IS(i(i,  liy  .MeK.,  ami  diet  is  ixiessive  the  entry  of  a  remittitur  will 
that   from   thai   lime  onwiird   .\lel\,  was  aeting    !»'  Hullieient  if  the  excess  is  the  lesull  of  mere 


as  his  servant. 


inistuku,  and  not  of  an  intentional  disregard  of 


//'/'/,  that   theverdiel   for  tjie  plaintill' must     the  instructions  of  the  Court. 


lie  sec  iisnie. 

W'ilkins  and  .*<milh,  .1.1.,  ilii.ii iili in/. 

Mrlkiimld  1 1  (t!.  V.   Ilroilli,  •_'  II.  .V  ('.,  -Jl.'t. 

II.    EvIdonro—YordUt against    TliPl'oiirl 

will  review  a  verdict  negativing  fraud  in  an 
assignment  of  personal  property,  and  set  it  aside 
when  contrary  to  a  strong  prepondeiance  of 
evidence. 

rnlriiiii  r  V.  Sinri/i  ,■  ,/  nl.,  .lames,  ■J77. 

1.1.    Kvldcnrc    Vordict  ap;aiiist- Wlicrv  a 

\('r<lict  is  found  against  uncontradicted  evidence 
and  the  charge  of  tiie  .ludgc,  the  Court  will  set 
il  aside. 

Thui-iK    v.  SItnir,  I  Old.,  ,'if_>. 

1«.    fivtdencc  -Vpi'dlc t,  against  woljtlit  of 

— Where  a  verdict  was  fonml  for  plaintitliJU  the 
evidence'  of  one  of  pliiintilt's  witnesses,  against 
the  eviilciii  e  of  ail  liie  di'fendant's  witnesses, 
and  against  the  evidence  of  one  of  the  only  two 
witnesses  prmluced  hy  jilaintili'  on  the  point  in 
(piestion,  the  evidence  of  the  latter  not  having 


MrKaij  v.   Wvod'ilK  li  M.  >."v:  <!..  SS  ; 

(ic.  L.  'I'.,  U.S. 

21.  Fraud      Verdict   as  ti)      riaiiitlir»t 

lii'oiight  action  on  a.  poiii'v  of  insurance,  ;iiid  the 
jury,  in  answer  to  a  ijuestion  whiMher  the  claim 
had  lieen  honestly  maile,  replied  "heing  over- 
estimati'(l  hut  not  with  the  intention  of  fraud." 
I.utcher,  a  co-plaint  ill',  gavi'  very  strong  evidenc(! 
to  implicate  I.fiugley  tirsi  as  heing  privy  to  the 
destruction  of  the  Jiroperty,  ami  sei'ondly.  as 
having  made  a  false  and  fraudulent  claim.  The 
wlioU'  evideuci'  in  tlu'  opinion  of  the  Court 
showed  liadgcs  of  fraud,  aiicl  altlicaigh  the  jury 
had  negatived  iutentioiiid  fraud  in  llie  statement 
of  tlie  claim,  their  verdict  was  for  only  .•^4(MI, 
while  the  claim  had  lieeii  made  for  S.'it ».'».( Mi. 
Ililil,  that  the  vei'diet  must  lie  .set  aside. 
l.oii'i/i  1/  it  (il.   V.  Xfirflicrii  Iiisiiriitife  Co., 

:i  \{.  &  ('.,  .'lit). 

22.  (icneral  vordirt  Tor  plaintiflT    One  or 

the  issues  found  for  defendant — The  jury  found 
a  general  verdict  for  )ilaintill';  hut  in  answer  to 


taken  plaint itn.v  surprise,  us  he  had  lU'eviouslv  >'   'l"^--'li""  l>"t    t"   them  hy    the  .ludge,   found 

heen  examine.l  >/.  hm,  -...v.  l.y  .lefemlant,  '  "'"'  "^  ''"'  '''>*'"'^  ''•^''"■''  ''.V  ^'"•'  l'l«'i'li"Ks  »'"''  t'le 

Ihhl,   that  the  verdict  must  he  set  asi.le.  'lef.n.lant. 
Spiiiw  \.   IVimU.rd-  Ainin/iu/is  i;<n/,r,n/,  ^^'''''   t'''it    the  general    verdict    for    i.laintifF 


I  l;.  .V:  ('.,  Kit). 

II.    Evidenoe     Weight  of  -  Verdict  set 

aside  ii.s  heing  against  the  weight  of  evidence, 
and  the  .Juilge's  charge. 

Coxttli  r  V.  Honiiliy  it  ai,  .S  N.  S.  1).,  240. 

1 

18.  Evidence  -  Weight  of-  Where  a  ver- 
dict is  sought  to  be  set  aside  solely  on  the 
ground  of  its  being  against  the  weight  of  evi- 
dence, this  Court  will  seldom  disturb  it  unless  j 


must  be  set  aside. 

/'ec. lames,  J.,  that  it  c(uild  be  amemled. 
MrKiitnon  v.  MrXei/l  <l  al.,  4  li.  it  ('>.,  '2't. 

23.  .Furors  The  omission  of  the  resi- 
dences and  occupations  of  the  jurors  in  the  lists 
returned  by  the  .Justices, 

Hdil,    nf)t    sutiicienl   to   disturb   verdicts    in 

causes  where  the  ol)jection  waa  not  made  at  the 

trial,  unless  it  is  shown  that  injustice  has  been 

done. 

Siaman  v.  Campbell,  James,  94, 


i:)95 


VERDICT. 


ir)96 


24.   Jury  -Judge  ghiiiR  his  opinion  to 

It  iM  no  grounil  for  Hi'tliiig  uhIiIu  a  viTilict  tliiit 
tilt'  .ludf^e  ^{iivii  his  opiiiimi  cm  the  facts  to  tlio 
jury  iviid  ruudiiiiiu'iicK'il  tlu'in  tc)  givu  Nuiiill 
daiiiHjjuH, 

Fnnch  v,  WaKace,  .Iuur's,  337. 

*2S.   Jury  ~  Mliirnndurt  of  During  a  th'^m 

wliicli  (iccurrt'd  in  tln'  itionri'ss  of  u  tiliil  lUlci' all 
the  (!vi(lonuo  hail  hi-on  put  in,  l)ut  the  chming 
aililrt'WH  of  the  (^)unst'l  not  yt't  (U'livcrcil,  oiio  of 
tiio  juriM's  Mils  ht'iii'il  to  say  alfiiid  :  " 'I'lic  pliiiu- 
tiflf  has  got  to  get  liiM  pay,  ami  he  will  get  it." 
The  venliet  lieiiig  in  favoi'  of  pluiiitit}',  it  was 
Bought  to  lii^  set  aside  for  niisi'ondilct  on  the 
part  of  the  juior. 

//'/</,  that  looking  at  the  eireunistaiices  under 
wliieh  the  remark  was  made,  there  was  no  ground 
for  disturliing  the  verdict. 

Thilihi'an  V.  A'/•o•W^  3  X.  .S.  ]).,  31S. 

2(1.    .Jury -Kclationship    The  foremnn  of 

a  juiy  which  found  a  veidict  for  defendant,  was 
a  cousin  of  defendant's  wife  ;  this  fact  was  not 
known  tojdaintitT  till  after  verdict,  tho\igh  his 
attorney  stated  to  defendant's  attorney  liefore 
the  jury  announced  their  verdict,  that,  if  it  was 
for  defendant,  it  would  he  set  aside  on  account 
of  the  relationship.  The  .ludgo  who  tried  tlie 
cause  was  satislied  with  tlie  verdict  found. 
The  Court  refused  to  disturli  the  verdict, 

Lelilaw  V.  M,l!(u,  •_'  H.  \  ('.,  -.MO. 

2!.    Objection  not  taken  at  trial -The 

Court  will  not,  on  the  argument  of  a  motion  to 
Bet  aside  a  venlict,  ent"ilain  an  olijectioii  wliicli 
was  not  taken  at  the  trial,  where  the  olijeelion 
might  have  been  remedied,  if  taken  at  the  trial. 
lliUis  V.  Camplii'/I,  .James,  48. 

28.  Right  of  the  Court  to  control  vertllct 

of —Wherever  the  jury  decide  against  (ir  with- 
out evidence,  tlie  Court  will  exercise  its  right  to 
control  them  in  order  that  justice  may  he  done. 
Cox  V.   Witt,  •_'  N.  S.  D.,  2.-). 

1 

29.  Second  verdict  same  way  -Evidence 

conflicting — Where  the  evidence  in  a  ease  is 
conflicting  and  contradictory,  and  a  jury  have 
twice  found  in  favor  of  the  plaintiff,  the  Court 
will  not  disturb  the  verdict. 

Fotler  V.  Foider,  Cochran,  70. 

I 

30.  The  Court  will  not  send  a  special 

verdict  back  to  a  jury,  to  decide  upon  a  pre- 
sumption which  they  would  not  be  justified  in 
finding. 

Archibald  v.  Bloii,  James,  307. 


31.  Uncertainty    Ambiguity -Where,  on 

an  inilictnieiit  for  murder,  the  jury  returned  u 
verdict  in  the  following  «ords:  "(iiiilty  of 
murder,  with  a  reeoinmeiidation  to  mercy,  as 
tliere  is  no  evidence  to  show  malice  aforuthoiiglil 
and  ]irenieditation." 

Ill  III,  that  it  was  too  ambiguous  and  uncer- 
tain to  allow  tilt!  Court  to  promiunco  any  juilg* 

meiit  on  it. 

Qmth  v.  Jlealey,  '2  Tliom.,  331. 

32.  Uncertainty  in    In  an  action  Tor  de« 

famation,  tiitt  jury  in  answer  tti  a  ijuestion  said 
they  could  ikjI  ilecide  whether  the  defendant 
had  malice  or  not  wiieii  the  wortls  were  spoken, 
but  that  they  considered  that  hi;  had  no  right  to 
nm:  them,  ami  they  found  for  plaintiir. 

//(/(/,  that  as  the  jury  hacl  not  foinid  express 
malice,  the  verdict  must  fall. 

Sli.plonI  V.   llVuVt, 'JR.  &C.,3l. 

33.  Incvrtalnty -Verdict  In  ejectment- 

Refusal  to  set  aside — When  a  plaititill'  has  re- 
covered in  ejiktmeiil  some  portion  of  the  lands 
describecl  in  his  writ,  but  it  iloes  not  clearly 
ap]>ear  by  the  venlict  to  what  portion  of  the 
jiremises  claimed  he  is  entitled,  the  venlict  will 
not  be  set  aside  for  uncertainty,  as  the  Court 
will  not  assume  that  lu^  will  attempt  to  recover 
jiossession  beyoml  what  lie  is  entitled  to. 

The  verdict  is  ample  authority  for  this,  and  the 
plaintiff  must  ascertain  the  line  at  his  jieril. 

Hamilton  v.  /'/V/7(.<,  3  N.  .S.  ]).,  87. 

34.  rncertalnty  -  Verdict  set  aside  for— 

In  an  action  for  trespass  to  land,  the  ilefeiidant 
)ii'oved  the  establishment  of  a  conventional  line 
with  the  person  from  whom  jilaintilf  claimetl, 
giving  the  lorw  in  (]iiestion  to  tlie  defendant. 
I'liiintitf  and  defendant  lioth  jiroved  subseciuent 
acts  indicating  ownershij)  performed  by  them 
respectively  on  the  locus.  To  the  (piestion  "if 
S.  (i.,  when  propiictoi'  of  the  land  of  plaintiflf, 

,  had  met  C.  (1.  and  the  defemlant  on  the  land  in 
question,  and  agreed  with  them,  as  trustees  of 
the  A.  Church  jiroperty,  that  the  western  side  of 

'  the  stone  wall  should  lie  the  western  line  of  the 
land  known  as  the  A.  Church  property,  the 
jury  returned  this  answer  :  "  he  (S.  (i.)  said  so," 
ami  found  a  verdict  for  plaintiff.  .S.  (i.  ilitl  say 
80  in  his  testimony  at  the  trial  antl  was  not 
contratlicted. 

Held,  that  the  verdict  must  be  set  aside. 

Onrhait  v.  (loosilbij,  2  R.  &  C,  '23.). 

35.  Verdict  for  plaintiff,  by  mistake  en- 

tered  for  defendant— Jurisdiction  of  Court  to 
set  the  verdict  aside — In  an  action  for  malicious- 
ly procuring  an  execution  to  be  issued  against 


1597 


WARRANTY. 


1598 


111.'  piaiiitiir,  tiio  Judge  put  to  iiio  jury  tiiiM|uiH.      !|,    Property  found  In  the  country  at  the 

tion  whether  the  (lefeiiiliuit  isHuetl  the  exucutiun    coumienceMiuiit  of  war  iiol  liiilile  to  Im  Hoizeil. 
knowing  or  holieving  that  nothing  wax  (hie  to  iiim  !  Jhiil. 

I'y   the  piiiintiU';  if  not,  the  vonlitt  to  lie  for' 

thtMicfcndiint.    Tiif  jury  lumwerci  tiie  .lui^tion      3.    Thc  derlaratlou  Of  War  by  tlie  I'nitrd 

in  tlio  ni'giuive,  i)ut  founil  ii  verdict  for  ]tluintitr.    •'^liit«-'>'  "lid  imt  place  tlu;  two  countries  in  a  com- 
'I'iie  iludgo  on  Circuit,  on  motion,  ordered  ii    I'lete  Mtate  of  war,  till  the  onler  for  repriwiln  liy 
verdii't  to  he  entered  for  defendant  with  leave    thu  Urilish  government.  /''/'/ 

to  move.     After  argument  of  the  ride  nisi  to  net  j 
ttside  tiio  verdict  for  defendant, 


4.    Prize  of- 


JIilil,  that  there  wan  no  authority,  after  the 
verdict  fr>r  plaintiff  was  rendered,  to  enter  a 
verdict  for  defendant,  and  that  tiie  Court  in 
hnii f  hni\  jurisdiction  to  grant  a  rule  (ni/  to  set 
it  HHiile. 

MrKitij  V.   H'oodl//,  4  It.  &  C,  .■>:.. 

86.    Verdict  too  larsre  -  Remittitur  m  to 

exceHs  ornow  trial -Where  the  venlicl  of  the 
jury  is  f(jr  a  larger  amount  than  is  claiirii-d  hy 
the  plaintitr,  the  Court  will  not  aUow  him  to 
enter  a  judgment  for  that  anuiiint,  Imt  will  give 
him  leave  either  to  remit  the  excess,  <ir  grant  a 
new  tiiul. 

Miilhall  it  («/.  V.  lliirs.1,  '2  Tliom.,  4(5, 


S,>  PRIZE  OF  W.\R. 


VICE-AUMIKAL. 
1.    Commission  of  Extracts  f^om  - 

Stewart,  4'24. 


WAKEII01SEM.\>  AND  WilAKFINOEK. 

1.  WharniKc    How  recovered-  WliarfliKe 

is  recovtT.ihle  under  comits  of  iiiililiiiiiiii.\ 
(iniuiiiinii,  that  licing  the  proper  form  in  whii'h 
to  ))roceed. 

I)<  Wulf  V.  I'inirharih/  ti/.,  ',]  X.  ,S.  1).,  •.>'.>4. 

2.  Where  a  warehouse  keeper  retains  for 

a  consideialile  space  of  lime  a  delivery  order  ill 
liis  possession,  witimut  giving  notice  to  tiie  |iaity 
seniling  it  that  tiie  property  is  not  liu'  property 
of  the  party  hy  whom  the  order  is  made,  he  will 
))e  personally  resj)onsil)le  for  the  goods  contained 
in  such  delivery  order. 
Wilkins,  .).,  ili.tsi niiinj, 

Tirliiiini  V.  Oa'/f//,  •_' Thom.,  18. 


3.    Use  and  occupation  of  wharf  Verdict 

2.     Their  powers  and   history  —  Cannot    for  defendant  set  aside-I'huntilV  lirouuht  suit 

issue  letters  of  marque—  f„,.  i,go  and  occupation  of  a  wharf.      Defendant 

Th'  Litlli  Joi ,  Stewart,  .382.    pleaded  nt^ver  indebted,  and  gave  evidenijc  that 

part  of  the  wharf  was  hnilt  on  a  pulilic  landing, 

over  which  the  pul)lie  had  for  a  long  perioil  lieen 

i  accustomed  to  pass  for  the  i)urpose  of  landing 
fish  from  tlieir  hoats.  Defendant  contended 
also  thai  plaintilV  could  not  liuild  a  jmhlic  wharf 
without    leave    from   thc    Crown.     The   Judge 


VICE-ADMIRALTT  COURT- 
See  ADMIRALTY- 


SHIPPINO. 


WAGER- 
Sce  GAMINO. 


charged  for  plaintiff  and  tlie  jury  found  for  de- 
fendant, hut  the  venlict  was  set  aside  with  costs. 
Lindsay  v.  Creiyhlon  tl  al.,  ',i  R,  &  G.,  290. 


WARHAXTT. 


1.    Brand  — Warranty— Plaintiffs  sold  to 

defendant  a  ipiantity  of  lish,  packed  in  Ijarrels 
I  and  lialf-harreLs,  inspected  hy  one  of  the  plain- 
iirin  1  tiffs,  not  being  a  sworn  inspector,  as  provideil 

by  .Statute  (3rd  R,  .S.,  e.  8')),  and  by  him  l.iranded 
1.     Does  not  exist  till  authorized  by  His    "^'"'f  Herring,  split  Xo.  l,"  the  statutory  de- 
Majesty scription  of  inspected  herring.     Before  purehas- 

See  AMERICAN  WAR.    ing,  defendant  examined  a  few  barrels  which 


l.VJ!) 


WARRANTY. 


KiOO 


Writ'  ii|irii('il,  lunl  Haw  liniii'  iiiikiiiiiicI.  'I'Iic  HhIi 
Were  Nliippi'il  til  hiiHtiiii,  ami  on  iiiM|u-('tiiiii  tlici'v 
tliiy  tiii'iii'il  iiiit  liail,  ujtii  till'  i'\i'i'|ilii>ii  III'  tiiiii' 
IiiiIii'In,  mill  UcM'  I'ctiil'liril  to  lliililitx,  wliiTt' 
tlicy  wi'te  iigiiiii  iiih|ifiti  il.  'I'lifii'  whn  •<tioiij,' 
I'viili'iirt'  that  liu'  IIhIi,  wliiii  ndM,  iliil  iml  cur 
i't'N|iiiii(l  uitii  till'  lniiiiil,  aiiil  llic  jury  in  aiiNNMr 
tiMi  i|m'titiiiii  put  to  tlu'iii  liy  the  .luilgc,  I'miiiil 
that  tilt'  IIkIi,  wlit'li  Holil,  wi'i'o  lint,  an  a  wlmlu, 
lii'iipi'i'ly  I'liri'il  Hiiil  iiii'i rliaiitalili';  liiit  to  aiiollit;!' 
ilut'Ntioii,  whcliitr  the  li^li  wiii'  fraiiiliilriitly  put 
iij)  for  the  purpoMi'  o|  ili'ti'ptimi,  tiny  iiiailc 
iiiittwor  ill  till!  iicyativi'.  A  vinlicf  piiMHcil  for 
till.'  plaint ill'i*  for  f^'.i'iO,  the  liaiiii  luiiig  almut  , 
JIKK). 

//(/'/,  that  till!  Iiraiiil,  "(lulf  lluriinj.'.  >*plit, 
No.  1,"  anioiintt'd  to  a  warranty  that  tlu^  HmIi 
wtri' of  till'  ipiality  coiiiini'ri'ially  kiiown  uiulir 
tint  ili'iioiiiiiiatioii  ;  tliat  it  wax  not  ii('r('.'<''ary 
fur  ili'tfiiilaiit  to  liriiii;  a  iroMK-at'tioii  on  the 
warraiitv,  liiit  tliiit  lif  roiilil  j^'ive  uviili'iii'i!  of' 
the  liiiarii  of  till'  wai'iiiiity  iin  proof  of  tVi'urt' 
of  (.oiisiiUratioii,  ami  that  tlii'  viniiil  nIioiiIiI  lie  ' 
sit  asiili'  with  I'ostH. 

.l/(((/i  /•  ,/  ((/.   V,  ./o»i  V,    I    I{.  &  ('.,  S'J. 


'2.     Iin|ili«'(l   wnrraiil)    of  uiilliorlty   tu 

act  as  ayeiit  -  riaiiiiill'  luinight  aitimi  for  tiic 
prill'  of  goods  fuinislifil  to  ih'fi'iulaiit,  who  |)ro- 
ft'ssi'd,   hut  without  any  valid  authority,   to  hi'  ' 
actjiij.'  for  tlif  cstati'  of  a  dfi-i'ascil  pi'rsoii  iiaiiu'il 
Hiiliiirds.      I'laiiilitraml  difindaiit  wiru  I'ljually  ; 
awari'  of  the  death  of  IJichards,  Imi  yet  the  lie-  i 
I'ouiit  was  still  kept  in  the  name  of  Rieliards,  | 
who  hail  in  his  lifeliiiit'  had  dealings  of  the  same  | 
nature  with  the  plaintiH'. 

J/i/il,   that   if   plaiiititr  eould    recover  at  all 
under    the  evidenee,    wliieli    was   doulitful,    he 
eould  only  do  so  on  a  eoiiiil  for  the  Iireaeh  of 
defendant's  inijilied  warranty  of  his  authority  , 
to  ait  for  the  estate.  ' 

On.-mni  v.  /%/- ,  I  R.  &  (!.,  1.  | 

3.  liisurancv'— Warrant)  In  policies  of- 

*eL\siR.\XCE. 

4.  Sale  of  flsh  as  No.  1  without  express 

warranty — Implied  warranty — The  sale  of  Xo. 
1  salmon  without  express  warranty  ainouiiti^  to 
a  warranty  that  the  fish  are  in  the  eonditiou 
preserihed  hy  law  for  tish  of  that  liraml. 

Hardy  it  cd.  v.  Fairhunk'i  tt  «/.,  James,  432. 


3.    Sale  of  goods  specified  to  be  No.  1— 

Inspection  of — Measure  of  damages  —  When 
the  bought  note  specifies  the  article  bought  to 


lie  No,  I  iiiaekerel,  it  is  a  wiirianty  that  they 
ai'o  of   that   iiuaiity.     The  iiispeetioii   of  a  fow 

liirrets  liefoie  ihfpiiirhase  dors  not  invalidate 
the  warranty.  The  measure  of  damages  is  the 
ditt'ereliei'  lietWeiii  the  value  of  tlie  artirli' 
ai'tuillly  sold  iiiid  the  Millie  ill  llie  same  liiiuket 
of  all  111  tiele  ot  the  ipiality  Npeeilieil  ill  the  liollglit 
note, 

H'kr  V.  lii'Mii,  '-'Thoiii,,  I7h, 


41.  Sale  or  property  Contract  of  war- 
ranty Latent  deteetn  \  eoiitiait  amounting 
to  II  warriiiity  of  goods  sold  is  violated  it  the 
artielcH,  owing  to  a  Ht'cret  defeei  existing  at   ihe 

time  of  sale,  aftel'Mards  lieroines  deteriiiriitid   in 
value. 

//'(/■'///  1 1  III.  V.  /■'iiirliinil.'i  1 1  It/.,  .lames,  l.'i'.'. 


7.    Sale  or  property    From  nature  of  (lie 

tranmiction  held  iiierehantahle  charaeier  of 
goodH  Hold  not  warranted     riaintills  Mere  the 

eonsii;iiees  for  sale  of  a  lalgo  of  oats  eonsist  iiig 
of  upwards  of  CilKMt  bushels,  imported  from  New 
\'ork  by  parties  residing  at  ( 'ornwallis.  The 
oats  Were  stowed  in  bulk  on  board  a  vessel 
lying  at  the  Market  Wharf.  I'laiiitiH's  had  en- 
gaged an  auetiiiiieer  to  sell  the  cargo  at  aui'lioii, 
and  a  sale  li.id  lieiii  adverti/ed.  Siibsei|Ueiit  to 
this,  OIK!  of  the  ilefeliilaiits  called  upon  plailitill's 
and  made  some  general  ini|uiries  in  regard  to  the 
character  oi  the  oats,  their  color  and  weight,  and 
finally  agreed  to  take  them  oil  plaiiitiIVs'  liaiids. 
There  was  no  sale  by  sample,  and  no  stipulation 
on  the  part  of  the  vendors,  whose  eondiicl  was 
fair  and  o])en,  that  the  oats  were  lit  for  any 
particular  purpose.  I  (efeudaiits,  on  the  evening 
before  the  appointed  day  of  sale,  iliterv  eiied  as 
purclmsers,  and  gave  the  auclioneer  instructions 
under  which  he  acted.  After  a  large  i|iiaiility 
of  the  oata  (some  l.")()0  bushels)  had  been  disposed 
of,  the  balance  reiiiaining  in  the  vessel's  hold 
were  discovered  to  be  musty.  To  au  action  for 
the  unpaid  lialancc  of  the  purchase  money 
defcudant.s  pleaded  substantially  that  the  con- 
tract was  for  a  cargo  of  inerehantable  oats,  being 
in  the  hold  of  the  vessel  and  incajiuble  of  in- 
spection. A  verdict  having  been  found  for 
defen(lant.s, 

//i  Id,  that  the  nature  of  the  transaction  pre- 
cluded the  idea  that  a  inerehantable  character 
was  an  understood  condition  of  the  contract. 
Ijoih  parties  had  eijual  oj?portunities  of  inspect- 
ing the  cargo,  and  the  vendors  sold  and  the 
buyers  bought  the  specific  visible  thing.  The 
rule  for  a  new  trial  was  therefore  niaile  absolute. 

Young,  C.  J.,  dissenting. 

Fraser  tt  al.  v.  Salter  et  al.,  1  N.  S.  D.,  424. 


inoi 

WAbTE- 
By  trnant  In  dower  - 


WAY. 


1002 


Tlic  mom  nc'tliig  >«o  nn  in  Iciid  iici'mcihh  to  mip- 
I  piiNi'  tliiit  a  ua^  i-4  (Icclji'iitnl  cIhi'n  imt  luiinuiil  to 
II  clcclic'iitinii,  if   tlii'i'i'  liu  III)  ii^i'i'L'iiivnt  which 
•'"'  DOnEKi )  t'xpluiii'i  the  tiiiiiNiictiim. 

I  //f(<c//(M  V.  It(ihr<t  >i'.,  I  Old.,  »l!l. 


ViATER  \Sn  WATKR-(Ori{SE. 
I.    Duiiiiitfr  lo  waloM'oiirsc    >Vlii>ri' iluiii* 

ni;:t'M  arc  cliiiiMrd  luriiri  iiliNtnii'tinii  tnuuuit'i- 
rriiil'ic,  til  riltitli'  JilaintitV  til  I'i'riivi'f  lie  liillht 
hIiiiw  till'  «liiil('  dainaycH  icMultcd  friiiii  tlic  acts 
lit  the  ditciiilaiit. 

/■V/s/ 


.1.    (irrnt  roiKiN    Not  nlloKHhor  exempted 

(Viiiii  pi'oviHidii.-tut  (Jounty  Incorporiitioii  Act  - 
/■'  (•  'riiiiiii|iMiiii,  .1.,  dilivciinj,'  the  jiiil;{iiiciit  of 
I  lie  Ciniit  The  (.Meat  riiailH  arc  imt  exempted 
from  the  prnviNiiiiiM  of  the  ( 'iiiiiity  Iiicoi|iiiratiiiii 
Alt  ^.'iiuially,  liiit  only  thiiM'  prnv  ihioiis  uhidi 
eiialijc  the  I'liiiiiril  til  stop,  alter  and  dive  It  roailM, 


V    Foir/,,'    ''riiiim      t"'.   !''''■'.'""'•'•'■'  »•  'I'll'  M,i„lrli,iintj/n/Sf.  Mmi/'^, 


2.    WaterN,  navigable    Kl^ht  of  <  rown  to 
grant-  i>    HlKhwa}     lledlealloii  of     Iiijiiiietlon 

>!'  (iKAM.    to   compel   removal   ol'  water  ijijicH     I'liiiiitilF 
prayeil   an   iiijiiie'lliiM    to  cnliipi'l   drl'eiidaiits   lit 


S"    DUAIXACiE    WAY, 


WAV. 


«.     Iirainage "  —  remove   certain  water  pipes    laid    llnnu;,'h   and 

under  plaintill's  lanii,  a'ld  also  i  laimeil  dama^cH 
fill'  trespasses  coiumitted  in  iliL'j.'in;;  irenihei* 
nml  laying  pipes  therein.  It  appeared  that  tho 
HctH  complaliicd  of  were  I'nmmittcd  on  property 
covered  liy  a  grant  to  [ilaintilV,  Imt  dor.e  along- 
side of  the   travelled  Iraet  of  a    road   which    hail 

1.  Dedication  or  IllKbnay  Limited  and  hecn  UHcd  an  a  imlilic  highway  for  over  sixty 
subject  to  pre-existing  right.s  and  ohligations  [  years. 

—  I>cfendant  rtiiiovcd  plaintill's  ]iiiirli  as  a  nui- '  Xo  dedication  or  layinj,'  out  of  the  road  was 
sance,  and  jiistitied  as  Keing  a  cimmittcc  of  the  proved,  hut  it  was  shown  liy  the  records  uf  the 
City  Council  duly  authori/ed  to  remove  any-  Court  of  Sessions  of  the  Comity  of  Halifax  that 
tiling  whicii  was  a  nnisancc,  encniachment  or  proceedings  wei'c  commenced  in  17iM)  to  lay  out 
annoyance  on  any  of  the  streets,  'riie  c\iilcnce  the  road,  and  that  tlm  .■Sessions  r.iade  an  order 
.sliowcd  that  the  pori'li,  which  encioaciud  upon  directing  the  Sjicritt'  to  summon  a  jury  of  tiie 
the  iiulilic  street  sevcial  feet,  had  hcen  in  exist-  next  townshiii  to  lay  it  out  pursuant  tn  law. 
ence,  just  as  it  was  licforeheiiig  pulled  ilown,  for  'I'lie  Act  under  which  tiie  proceedings  were 
a  period  of  sixty  years,  Theie  was  no  evidence  taken,  .'id  (ico.  '.i.  c.  I,  iei|uired  that  the  return  of 
as  to  the  origin  or  iledication  of  the  street,  and  the  Sheritl'  should,  after  notice  to  the  owneis  of 
it  dill  not  appeal  whether  the  porch  or  the  street  |  the  nature  and  course  of  the  road  to  he  nuide  or 
were  the  more  ancient.  !  altered  through  their  landH,  he  confirmed  and 

Ilihl,  in  the  alisence  of  evidence  as  to  the  recorded  liy  the  Court  of  .Sessions,  and  that  tho 
original  laying  out  of  the  street,  its  dedication  road  sIkiuIiI  lie  made  or  altered  aci'oriliugly,  and 
to  the  pulilic  should  lie  taken  as  suliject  to  the  .shoidd  "thenceforth  liecome  a  pulilic  highway."' 
encroachment  in  (]uestion,  and  that  the  verdict  I  H(/il,  that  under  the  terms  of  the  Act,  the 
for  dcfemlant.s  should  he  set  aside,  I  road  would  not  hecome  a  public  highway  until 

//(ii/eir/i)  V,  Pri/or  I  f  ii/.,  'i  X.  S.  1),,  XV2,  !  the  return  and  notice  had  lieen  continued  anil 

I  recorded,  and  that  in  the  absence  of  proof  of  thia 

2.  Dedication  of  public  highway  —  Cul  having  been  done,  the  laying  out  of  the  road 
de  sac — There  may  be  a  public  highway  without  I  inider  the  .Statute  coidd  not  lie  presumed,  even 
its  being  a  thoroughfare,  but  where  such  high-  i  in  view  of  the  long  user,  merely  from  the  fact 
way  is  claimed  by  dedication,  the  acts  or  de-  '  that  the  Court  of  Sessions  had  ordered  tlie 
clarations  relied  on  to  support  it  must  be  clear  .  Sheriff  to  summon  a  jury  for  that  purpose, 

and    unequivocal,   with    manifest    intention   to  i      Alio,  that  even  if  the  road  had  been  laid  out 
dedicate.  ;  as  contended,  the  soil  in  the  highway  remained 

There  is  a  difference  between  a  ail  de  sac  in  I  in  the  owner  of  the  property  through  which  it 
the  city  and  in  the  country,  much  stronger  acts  [  ran,  who  could  maintain  trespass  for  digging  up 
being  required  to  establish  a  pulilic  highway  by    the  soil  and  laying  pipes  therein, 
dedication  in  the  latter  than  in  the  former.  I      Pa-  Weatherbe,  J.  —  That  as  no  irreparable 


1603 


WAY. 


1604 


Injury  was  shown,  the  injunction  to  compel  the 
reuioval  of  the  pipes  shouhl  not  be  granted,  but 
that  the  verdict  for  damages  should  stand  if  tlie 
trespasses  had  been  committed  within  the  limits 
of  the  plaintiff's  grant. 

Kearney  v.  Diction  et  a/.,  20  N.  S.  R., 

{8R.  &G.),  95. 

On  appeal  to  the  Supreme  Court  of  Canada, 

Held,  reversing  the  judgment  below,  that 
in  the  absence  of  any  evidence  of  dedication  of 
the  road,  it  must  bo  presumed  tiiat  the  proceed- 
ings under  the  Statute  were  riglitly  taken,  and 
K.  could  not  recover. 

Dick-ion  V.  Kearney,  14  S.  C.  R.,  143. 

I 

S.    Highway  —  Drainage  -  Dedication  of 

water-course  —  Public  easement  —  Adverse 
enjoyment  — Prescription  — Action  of  trespass 
against  a  Surveyor  of  Highways  for  cutting  a 
ditch  through  plaintiff's  land  to  carry  off  water 
from  the  highway,  and  for  Klling  up  another  i 
ditcli  in  the  highway,  an<l  thereby  causing  water  : 
to  flow  over  plaintiff's  land.  Defence  ;  To  the  ' 
first  charge  :  That  tlie  former  owner  of  plaintiff's 
land  lielped  to  construct  ihe  highway,  and  agreed 
to  the  cutting  of  the  ditch  for  carrying  off  the 
water  from  the  highway  ;  tiiat  the  ditch  Inul 
been  in  use  for  tliat  piupose  for  thirty-seven 
years  ;  that  occasional  oljstructions,  during  that 
time,  had  been  removed  by  the  Surveyor  for  the 
time  being  :  that  the  ditch  follows  the  natural 
■course  for  the  flow  of  water  from  the  highway  ; 
and  that  the  cutting  complained  of  was  a  clear-  ■ 
ing  out  of  obstructions  which  plaintiff  had 
placed  in  the  ditch  a  short  time  before.  The 
defence  to  the  second  complaint  was  tliat  the 
other  ditch  was  a  ditch  alongside  the  highway, 
too  deep  to  be  safe,  and  that  the  defendant,  as 
such  Surveyor,  partially  filled  it  up,  as  he  had  a 
right  to  do.  At  the  trial  the  Judge  excluded 
the  evidence  of  defence  to  the  first  complaint  and 
a  verdict,  under  his  direction,  passed  for  plaintifl'.  ' 

//eld,  1st.      That  the   long  u.se  of  the  drain 
through  plaintitr's  land  was  evidence  from  which 
a  jury  might  infer  a  dedication  by  deed,  though  i 
there  was  evi<lence  of  an  assent  to  sucli  use  more  | 
than  twenty  years  ago.     '2nd.     That  the  defend-  j 
ant  had  a  right,  us  such  Surveyor,  to  close  or  [ 
alter  the  ditches  along  the  highway,  as  a  private 
proprietor  of  land  in  the  same  situation  might. 
Verdict  set  aside  accordingly. 

The  following  propositions  were  affirmed  : — 

That  as  to  water  not  flowing  in  defined  chan- 
nels, the  flowing  does  not  warrant  the  presump- 
tion of  a  grant ; 

That  as  the  owner  of  the  high  land  cannot 
■colle-it   such  waters  in  drains  and  precipitate 


them  on  the  land  of  another  proprietor  below,  a 
grant  may  be  presumed  where  this  has  been 
done  as  of  right  for  twenty  years,  and  this  not- 
withstanding the  Prescrii  ion  Act,  c.  100,  R.  S., 
4th  series,  s.  28. 

That  evidence  that  use  began  prior  to  twenty 
years  by  consent  is  merely  evidence  against  the 
presumption  of  a  grant,  and  may  be  met  by 
counter-evidence  that  the  use  was  afterwards 
as  of  right,  iVc,  for  twenty  years  ; 

That  the  consent  by  parol  to  the  establish- 
ment of  an  artificial  course,  made  more  than 
twenty  years  ago,  is  not  conclusive  that  tiie 
subse()uent  twenty  years'  use  was  not  l)y  grant, 
because  such  a  right  could  not  be  conferred  lij' 
parol  alone ; 

That  a  dedication  to  the  public  of  an  easement 
may  be  inferred  from  the  like  circumstances  as 
warrant  the  inference  of  a  grant  in  liie  case  of 
a  private  person  enjoying  such  casement  ; 

That  tlie  surface  and  ditches  of  a  highway 
may  be  altered  without  liability  to  an  action  by 
the  adjacent  proprietors. 

Harriioti  v.  Harriion,  4  R.  it  (i.,  3.S8. 

0.    Higliway— Duty  of  corporation  as  to 

repairs — Malfeasance — Non-feasance -Where 
an  individual  or  corporation  is  liable  to  in<lict- 
ment  for  non-repair  of  streets,  an  action  will  lie 
at  the  suit  of  one  who  suffers  special  injury. 

Liability  is  not,  in  all  cases,  to  be  inferred 
from  enactments  placing  the  liighway  under  ile- 
fendant's  control.  The  obliijalion  must  have 
been  imposed  on  or  transferred  to  defendant. 

Xo   distinction   exists   between    non-feasance 
and  malfeasance,  in  relation  to  such  liability. 
Walker  v.  The  City  of //alij'ax,  4  R.  &  (i.,  371. 

On  appeal  to  the  Supreme  Court  of  Canada, 
Held,    1.     Ritchie,  C.  J.,  (litnentini/,    that  it 
was   the  duty   of  the  corporation   to    keep  the 
streets  in  good  repair  ;  and 

2.  G Wynne,  J.,  diisentimj,  that  the  plaintiff 
was  entitled  to  retain  his  verdict,  having  proved 
special  injury,  and  the  damage  awarded  not 
being  too  remote  nor  excessive, 

TheCily  of  Halifax  v.  Walker, 

IGth  Fehruarv,  1SS5, 

Cas.  Digest,  98. 

7.    Higliway  —  Negligence  —  Liability  — 

Plaintiff  sustained  an  injury  from  earth  left  on 
the  street  by  V. ,  who  had  obtained  permission 
from  P.,  a  public  officer  (Superintendent  of 
Streets)  in  the  employ  of  defendants,  to  place 
the  earth  there,  but  not  to  leave  it  there  after 
ten  o'clock  at  night.  The  earth  was  left  on  the 
street  all  night,  but  the  accident  occurred  before 


1605 


WAY. 


IGOG 


ten  o'clock.  It  did  not  appear  that  the  defend- 
ants were  aware  of  the  eartli  being  so  deposited 
or  left. 

Hdd,  that  as  the  defendants  were  a  public 
body,  discharging  u  public  duty  gratuitously, 
and  ha(i  no  share  or  participation  in  the  wrong 
complained  of,  it  having  been  done  without 
their  consent  or  knowledge,  they  were  not  liable, 
and  that  tlie  action  could  not  be  maintained. 

Erain  V.  The,  City  of  Halifax,  1  Old.,  111. 

8.  Highway  -  Title  to  soil  -  Tlic  title  to 

the  soil  of  higiiways  laid  out  uu<ler  tlie  Statutes 
of  tliis  Province,  tlu'ougii  tlie  lands  r)f  private 
individuals,  and  for  which  they  have  received 
compensation,  is  divested  (jiit  of  tlie  owner  of 
tlie  adjoining  land,  and  al)solutely  vested  in  the 
Crown,  for  the  use  of  the  pulilic. 

Halliburton,  C.  J.,  and  Dodd,  J.,  ili.i.ii>iititi,j.  ' 
Koch  V.  Daitjiltiiiii ,  ,]i\.mcH,  1.")!). 

9.  Laying  out  public  road  -  The  Commis- 
sioners and  Sessions  cannot  exercise  their  own 
discretion  and  layout  a  roail  substantially  ditlcr- 
eiit  from  that  petitioned  for  by  tlie  ficclioMcrs. 

Queen  v.  Chipmati  it  al.,  'iTlioiii,,  UiO. 

10.  Laying  out  public  road  -  Three  mag- 
istrates, forming  a  part  of  tlie  Court  of  Sessions, 
by  whom  the  return  of  a  precept  issued  under 
cap.  (i'2  of  the  Revised  Statutes,  for  laying  out 
a  rf>ad,  is  to  be  decided,  are  not  the  three  disin- 
terested freeliolders  contemplated  by  tiiat  Act. 

Queen  v,  Chl/i»iaii,  2  Tlioin.,  '2'J'2.  , 

11.  Municipal  corporation— Liability  of, 

for  negligence  in  not  keeping  bridge  in  safe 
condition— 

See  CORPORATION,  10. 

12.  Municipal  corporation     Liability  of, 

for  negligence  of  Surveyors  of  Highway-- 

See  CORPOR.iTIOX,  1-'. 

13.  Municipal  corporation  —  Liability  of 

town  for  injury  caused  by  defective  sidewalk  ~ 
See  C0RP0R.4TI0y,  7. 

14.  Municipal  corporation  -  Obligation, 

to  guard  dangerous  places  on  public  roads — 
Negligence — Plaintift'  sustained  severe  injuries 
by  falling  over  a  precipitous  embankment  ad- 
joining tiie  public  highway.  The  locality  was 
known  to  be  dangerous,  but  no  precautions  had 
been  taken  to  guard  against  accident  by  fencing 
or  otherwise.  It  was  admitted  that  in  the  ab- 
sence of  contributory  negligence  on  his  part, 
plaintiff  was   entitled  to   recover.      The   jury 


found  that  there  was  such  contributory  negli- 
gence, but  they  also  found  tliat  the  road  re- 
quired protection  between  the  travelled  track 
and  the  edge  of  the  bluff,  but  yet  that  it  was 
safe  after  dark  for  anyone  wiio  used  ordinary 
care,  and,  in  tlie  face  of  uncontradicted  evi- 
dence, found  that  plaintiff  had  sustained  no 
damage.  The  findings  of  tlie  jury,  and  liie  ver- 
dict for  defendants  based  upon  them,  were  set 
aside  with  costs. 

Sanlilf,  tliat  Ciiapter  109,  of  .')tii  Revised 
Statutes,  removing  certain  dis(]ualiticatioiis  of 
Judges,  .Justices  of  the  Peace,  or  persons  em- 
powered by  law  to  exercise  judicial  functions 
does  not  apply  to  jurors. 

Kiiiij  V.  The  Miiiiii'ijialily  of  Kiu<i<, 

7  R.  &(i.,  OS; 
7C.  L.  T.,  119. 

lo.    Pent-way— .tssessment  of  damages— 

Wliere  the  (General  Sessions  coiitirmud  the  pro- 
ceedings to  establish  a  pent-way  which  had  been 
duly  laid  out, 

Ih/il,  tliat  l)i>fore  such  way  could  lie  used,  tiie 
proprietor  of  tiic  land  througii  wliicli  it  runs 
must  bo  paid  the  damages  awarded  to  iiim  by 
the  jury  wiio  iiave  assessed  tiie  same. 

Cameron  v.  McLian,  2  Tiiom.,  .3'29. 

16.  Plea  of  private  way- Proof  of  public 

way— User— 'rrcs]iass  for  rciiioviuj,'  a  dwcllii;g 
iiouse  of  plaintiff's  which  the  dcfoiidniit  diil  in 
assertion  of  a  right  of  way  over  the  ground  on 
which  it  had  been  erected.  The  evidence  was 
conclusive  as  to  the  fact  of  a  right  of  way  hav- 
ing been  enjoyed  by  the  public  over  the  land  in 
question  for  a  period  of  upwards  of  forty  years. 
Hi  III,  Wilkins,  J.,  di'^si-iitliin,  that  it  was 
thereby  proveil  a  public  way,  common  to  all  the 
King's  subjects,  and  although  defendant  had  re- 
lied upon  pleas  of  a  private  way  instead  of  a 
public  highway,  still  his  defence  was  substan- 
tially good. 

Comian  v.  LeWanr,  2  X.  S.  I).,  1.'?. 

17.  Public  way  subject  to  certain  rights 

of  owner  of  land  through  which  it  passes- 
There  may  be  a  public  way  with  the  light  of 
the  owner  of  the  land  through  which  it  passes 
to  have  a  gate  at  certain  seasons  erected  across  it. 
Bar/let/  v.  Pratt,  2  Thoiw.,  11. 

18.  Railways  -  Liability  for  defective 

condition  of  cattle  guard  at  intersection  of 
railway  with  highway— Cattle  unlawfully  on 
highway — Onus  of  showing  negligence  in  such 
case  on  owner  of  cattle— Railway  Act  of  1880 
— Plaintiff's  cattle  were  turned  out  upon  the 
public  highway  for  the  purpose  of  being  driven 


1G07 


WAY. 


1008 


to  jiiistnro,  and  while  tln-re  uiiiil  Iciidccl,  tt<,i  njion 
il('fcn(!iiiit  ('r)iii|)Miiy'M  liiK!  (if  niilway  in  cdiisc- 
(|n('iii'c  (if  till;  il(.'fuctivi!  cduilition  (if  tlic  ciittlc 
gimnl  at  the  inlersectinn  (if  the  railway  with  the 
highway,  ami  imv  'if  the  cattle  was  killed  liy  a 
pasMiiit;  ti-ain. 

//(■/(/.  (1).  That  the  clanse  (if  the  Aet  (Hail- 
way  Aet  ISMK),  re(|iiiriii),'  ^'iiai'ds  at  ei'(issinf,'s, 
emild  iKit  lie  conHtilied  t(i  render  tlu;  cdiMpany 
lialile  t(i  (iwneps  (if  cattle  iiidawfully  (m  llie 
liij,'hway. 

{'2.)  'i'hat  tint  daiMa;,'e  ncil  liaviiiL,'  lieen  dune 
at  the  iiiiint  (if  inteiHcctinn,  jilaintili'  was  not 
alisiilutely  precluded  frcmi  recdvcTin^,  Imt  was 
sulijccted  111  tile  (iiui.s  (if  siuiwint;  that  def(!ndaiit 
niiL.'ht,  with  tlie  exercise  (if  (irdinary  cai<i  and 
dili;.'enee,  haveavdided  the  mischief,  and  havin!,' 
failitd  td  do  sd,  the  verdict  in  his  fa\(ir  c'nuid  nut 
stand. 

Whiliii'Ki   V.    ir.  <l'.l.  Ilni/icdii  Cijiiiiinini, 

(!  H.  .V  (;.,  1271. 

1!).    Kl^lit  or  roixl     i)('roii(1jiii(*s  .servant, 

wliiic  driviiij,'  at  a  rapid  pact^  (in  the  wi-onj.;  side 
df  till;  road  came  intd  cullisidn  with  plaintitl's 
linr-c,  wiicicliy  jilaintitr  was  injmed.  There 
licini,'  no  cdntriliiitory  nej^ligence  dn  the  ]iait  nf 
)ilaintiir, 

III  III,  that  dct'cndant  was  lialile. 

Marlii,   V.  Taijlor,  .'!  \.  ,S.  I).,  !H. 

'20.    Kijflit  or  way  -  AbaiHloniiieiit  (>r  - 

Plea  of  highway- -User  -  Wlieic  land  was  used 
as  a  way  in  the  early  settlement  df  the  cduntiy, 
liut  a  regidar  pulilie  highway  was  afterwards 
sulistituted  for  it,  and  fnim  that  time,  licing 
lifty  y'jars  liefore  acticm  lironght,  the  old  wiiy 
was  disused, 

III  hi,  an  alianddumenl  of  the  ancient  light  df 
way,  if  any,  and  that  the  dwiier  of  the  siiil  d\er 
whicli  the  way  passed  iield  it  exi'inpt  frdiii  x\\v 
jiulilic  right  (whatever  the  extent  (if  it  may  l'.a\e 
lieen)  that  had  jireviouHly  linriiiened  it. 

The  plea  of  a  highway  is  not  divisiiile.,  a;iii 
must  lie  made  out  as  pleaded. 

S/iiilili,  td  eunstitute  a  ])ulilic  hignway  liy 
user,  there  must  lie  an  iiitentidii,  express  dr 
implied,  of  dcdicatinn  tn  the  pulilic,  on  the  pari 
df  the  (iwner  who  permits  such  user. 

Li  (try  v.  Stmndtrs  it  III.,  1  Old.,  17. 

21.    Right  of  way  by  user -The  plaintiflT 

claimed  a  right  of  way  (iver  land  (if  the  defend- 
ant from  a  meadow  lying  in  the  rear  of  defend- 
ant's land  to  Lhe  highway.  He  testified  on  the 
trial  that  T.  (iourley,  the  ])rcvious  owner  of  his 
lot  df  land,  enjoyed  an  easement  for  thirty  years, 
adv(.;rsely  to  the  party  from  whom  the  defend- 


ant derivecl  title,  Imt  he  prddu(!ed  no  deed  and 
did  not  show  that  the  ea.senient,  if  mich  tlu^re 
was,  had  lieen  conveyed  to  him.  He  also 
claimed  under  a  deed  of  the  meadow,  fioni  tin; 
executors  of  T.  (iourley  in  iHtil;  Imt  as  there 
was  no  evidence,  except  that  of  tin;  jilainlifT 
himself,  df  a  cdutiniidiis  user  liy  (idurley  for 
twenty  years,  and  tht;  e\idence  taken  altngiMhcr 
negativeil  such  a  user,  it  wa.s 

III  III,  that  neither  T.  (iiiurley  nur  his  exccii- 
tdis  could  c(inv(;y  any  light  of  way  to  tin?  plain- 
tiir,  and  that  the  verdict  for  the  defendant  must 
lie  susta.incd. 

Tii/i/iir  V.  Ckiii/iIiiII,  'Jt  K.  &  ('.,  <>H. 

22.    Uishtnrnay    (i rant  of   Trespass  to 

T(i  an  actidii  of  trespass  defendant  jilcaiU'il, 
justifying  under  an  alleged  grant  df  a  riglil  of 
way.  I'laint  id' replied  excess,  and  pnived  that 
a  gate  on  I  lie  pidperty  had  lieen  reuidved  and 
IdiiJ  dd\\  n  in  the  exercise  nf  the  alleged  right  (if 
way.  I'lainlitl'  and  defendant  lidth  claimed 
their  adjiiiniiig  hits  liy  cdiiveyance  frum  the 
same  grantor,  and  defendant  relied  (ill  the  fact 
that  his  d(!ed,  which  (•dinprised  the  grant  nf  the 
right  df  way  nvcr  jilaintifr's  land,  had  liccn 
rc;,'i>lcrcd  huig  Jircvidiisly  tn  the  registry  nf 
plaintitl's  d(!ed,  Imt  no  evidence  was  given  as  to 
ihc  registry  or  the  dale  thercdt. 

//'/'/.  /HI-  .lames,.!.,  that  under  the  decisidll 
in  '•■on'il  V.  Miilriiinr,  I  I!.  ki\.,  XW),  the  cer- 
titicatc  sJidiiM  have  liceii  tiiidcred  and  pidvcd, 
if  dlijccteil  |i..,  anil  further,  thai  plaint  id'  was 
"•iililled,  under  the  evidcii.e,  in  hnid  his  vcrdiil 
on  the  giduiid  nf  excess. 

/'//•  W'catlierlie,  .1.  -Thai  the  locus  .if  llic 
trespass  had  not  licni  idcntiticil  liy  defeiahuil 
with  the  way  as  descrilied  in  his  deed, 

McDonald,  .1,,  ili^-ii  iiliiiij. 

.\fi'L'iiriiiiii'l  \'.   I )i  iiiii-<iiii,  ."i  l>.  i\;  'i..  71. 

2:{.    \\\'A\\i  oFway    Obstruction  of   Plain. 

till'  ami  one  of  the  defen.iants  diviihd  a  lot  of 
land  of  which  they  were  tenants  in  common  into 
two  eipial  parts  ,ind  executed  a  liond  or  agree- 
ment in  the  penal  sum  of  .•^'_'(H»  for  tlu'  piir]iose 
.,f  sc'uring  to  each  of  the  parties  the  free  use  of 
all  roads  existing  at  th<^  time  on  either  of  the  lots 
of  land.  I'laintitt'  having  lirmight  an  action  for 
an  alleged  olistriictioii  of  one  of  the  roads  referred 
to,  and  having  jiroved  no  title  apart  from  the 
liond. 

Held,  that  the  action  was  wr'  ngly  brought, 
plaintiff's  remedy  lieing  an  aeti  ri  on  the  bond. 

Also,  that  plaintiff'  was  estopped  by  the 
agreement  from  setting  up  prescription,  but  de- 
fendant was  not  estopped  from  saying  that  there 
was  no  grant. 


1009 


WIFK. 


1010 


/'i /■  I'li'iiiip.^oii,  .).  'i'lii!  wciids  ill  till;  lidijcl 
<Vu\  not  luiiciuiit  til  tin  I'.'isuiinMit  l>iit  ut  iiioKt  to  a 
liuoii.su  <ir  a  CDVcn.int  imt  Id  i)li.stiiii:t  tlu'  wiiy. 

Al^'O,  pliiilititl'lriij^lit  IjHVf  pioviil  a  lit  It;  to  tlu; 
Uiiy  iiiil(|)ciiilciil  of  the  iignoiiiint. 

Il'/iiiiiiiiii  V.  Joins  ii  III.,  .■>  H.  &  <i.,  44;{. 

21.    KlKlit  or  nay      I'artllloii   of  land 

8ubj(K;t  to  I'liUiitiir  and  liit:  Iwn  ilcliinilants 
pnrcliiisi'il  a  ticid,  (liviiliMl  tlio  front  |iortion  into 
lots  accoiding  to  a  (n^rtain  plan,  layini;  oU  two 
lots  as  |)i'opos('(l  St iiiits,  coionMtini;  an  existing; 
stiiMi  wilji  the  iindiviilccl  rear  portion  of  the 
land  and  fiirnisliing  tin'  only  access  to  that  ri^ar 
j)orii(in  from  any  existing  striM't. 

'I'Ik!  defendant  1'.  |iureliaaed  the  undivided 
rear  portion  and  two  of  tiie  front  lots,  one  on 
<;acli  .side  of  one  of  tlic  proposuil  Htre(!tM, 
the  said  lots  lieing  desi:rilied  in  tin;  deed  as 
lioiindecl  on  the  north  and  south  respectively  l)y 
the  street  in  i|nestion. 

//i/'/,  that  the-  plainlitV  was  estoppiid  as  a 
griiilor  in  the  died  to  defendant  I',  from  deny- 
ing that  a  right  ot  way  was  gra;ited  over  tlie 
land  designated  in  tiie  deed  and  on  the  plan 
miller  which  the  sales  were  nunU;  iis  proposed 
streets. 

//>/</,  al.so,  that  although  the  land  diisijjnated 
on  the  plan  as  proposed  streets  was  snliject  to 
a  rigiit  of  way  to  the  i'  ir  and  to  any  ol  her  por- 
lion  of  the  adjoining  lots,  yet  that  as  llie  title  to 
it  rein.'iined  in  the  ]>lailititl  and  defendants,  it 
was  suliject  to  partition  uiiiUm'  cha])tir  l('"J  of 
4tll  lievi.seil  Statutes. 

/'»;///   V.  /'ilirs  il  at.,  ■_'  II.  &  C,  i;i!t. 

23.    Itight  or  way    Possession,  unity  of— 

In  Older  to  acipiire  a  ligiit  of  way  liy  enjoynieiit 
for  twenty  years,  it  must  lie  ])roved  that  the 
claimant  has  enjoyed  it  for  the  full  period  re- 
<Hiired,  ft.i  of  riijht  and  if  theie  has  lieeii  unity  of 
possession  for  all  or  any  part  of  tiial  time  the 
cliiiinanl  will  not  have  enjoyed  as  of  r'njhl  the 
casement,  hut  the  soil  itself.  A  defeine  on  this 
ground  to  a  claim  of  right  of  way,  is  sullicienlly 
put  in  issue  hy  a  plea  that  the  claimant  in  not 
entitled  to  .such  right  of  way,  as  alleged. 

ijiumre,  whether  a  tenant  at  will  has  such  an 
estate  as  will  entitle  him  to  sustain  an  action 
for  obstructing  a  right  of  wiiy. 

Smith  V.  MrDoitiiJil,  .'{  R.  \:  C,  •_'«}. 


plaintiff's  properly,  which  he  claimed  to  enji>y 
liy  virtue  of  user  by  himself  and  tho.se  iindei 
whom  he  elaimiMl  for  a  jieiioil  ot  u|)wards  ot 
forty  years.  No  user  as  claimed  was  proved  at 
tlie  trial,  but  it  appeared  tiiat  plaiiitill'  hiul  no 
legal  right  to  use  the  way  as  his  o\\  n,  nor  any 
]  license  from  the  owner  to  doso.  It  wasconten- 
iliril,  that,  admitling  liiis  to  lie  so,  plaintill  being 
in  possession  of  the  way,  or  the  user  thereot, 
ciiuhl  maintain  his  ai;tion  against  defendant, 
who  was  in  no  better  position,  for  interriipling 
him  in  the  user. 

He/il,  that  the  mere  user  by  plaiiiliir  of  the 
way  in  iMiiiimon  with  other  |iaitics,  in  the 
absence  of  any  legal  right,  would  not  enable 
him  to  reeover  damages  against  defendant  for 
obslrucling  till'  way. 

/■;//>  V.  /;/'/'■/•,  7  H.  it  (i.,  •_'•_'•.'; 
7  ('.  L.  T.,  :!•-'<). 

On  aji/'i'i/  III  III!  Sii/iniiii  ('our/  of  Ciiiiii.i/ii, 
I/ilil,  at'-'ining  the  judgment  below,  Ilitchie, 
('.  .!.,  and  ( iwynne  .1.  ilis.iiii/iiiij,  that  as  plain- 
titr  had  no  grant  or  conveyance  of  the  right  of 
way,  and  had  not  proved  an  exclusive  user,  he 
could  not  niaint.ain  his  aetion. 

h'/ls  v.  Jl/ark;  H  S.  ( '.  K.,  740; 
7  C.  L.  'i'.,  :iW>. 

21.    W  ay  of  necessity    Tlic  riglit  to  a  way 

of  necessity  does  not  cease  by  the  sulisei|Ucnt 
construelion  of  a  public  road  )iy  whii.li  there  is 
less  convenient  access  to  the  land. 

ilarilwr  v.  //o/Vd,  2 'riioin.,  •J7!S. 

28.    Waj  of  necessity-  Wlierc  a  tenant  by 

\  the  courtesy  of  one  lot,  who  is  owner  of  an  ad- 
joining lot,  pleads  a  way  of  necessity  in  himself, 
there  ln'iiig  a  convenient  access  by  the  lot  of 
which  he  is  owner,  hid  tiiat  such  a  plea  will 
not  be  a  good  defence. 

The  plea  need  state  no  more  than  tii.it  it  is  a 
way  of  necessity. 

liulikfuril  V.  Kiiiiicur,  '2  'Ihotii.,  407. 


WEIGHTS  AND  MEASURES. 

inspecting  and  weighing  flour 

.V«  HALIFAX,  tITY  OF,  K* 


26.    User  of  a  way  to  which  a  party  has 

no  legal  right  not  sufticient  to  entitle  to  dam- 
ages for  an  obstruction— Reformation  of  deed 
— Joinder  of  parties  -  -  Damages  —  I'laintitl 
sought  to  recover  damages  against  defendant  for 
obstructing  him  in  the  use  of  a  way  adjoining 


WIFE- 
Sce  HISBAND  AND  WIFE. 


IGU 


WILL. 


1112' 


WILL. 

1.  Action  against  executors  - 

So  EXECVTOKS  AND  ADMIMSTKATORS. 

2.  Action  to  test  validity  of-  Costs -Where 

an  iU'tion  is  hronglit  to  test  the  viilidity  of  a 
will  in  wliifh  all  the  heirs  of  an  estate  are  in- 
terested, the  eosts  of  siieh  action  should  not  he 
home  solely  by  the  losing  ])aity  in  tlie  suit, 
Imt  those  of  hoth  jtartics  shoidd  he  a  charge  on 
the  estate  in  analogy  to  the  practice  on  feigned 

issues. 

Ziuk  it  a/.  V.  Ziid;  2  Old.,  17'). 

3.  Administratrix  witli  will  annex(>d  - 

Purchase  of  real  estate  by,  when  personal 
assets  of  testatrix  .sulhcient  to  pay  oft'  incum- 
brances—Subsequent  parol  agreement  to  sell 
part  of  said  land,  null— Compensation  money 
for  laml,  right  to,  and  how  to  be  treated — 4th 

R.  S.,  c.  36,  8.  40. 

See  CONTRACT,  s. 

i.    Advancement  —  Presumption  as  to  - 

Evidence  of -Circumstances  to  rebut  it— 'I'lie 
testator  desiring  to  invest  money  in  the  Savings' 
Hunk  and  in  l)oniinioii  live  jier  cent  stocks, 
aseeitained  tiiat  he  could  not  invest  more  than 
■■i^UMM}  in  the  live  per  cents  in  his  own  name,  nor 
more  than  .liilOifJOO  iu  the  four  per  cents.  After 
investing  up  to  the  limit  in  hoth  the  four  and 
tive  jier  cents  in  his  own  name,  he  wiliidrcw 
part  of  tlie  four  \)cv  cents  and  puichased  stock 
for  which  he  obtained  ccititicates  in  his  own 
name  as  trustee  for  his  daughters  and  his  wife, 
and  also  invested  money  in  the  four  per  cents 
in  the  same  way.  .Separate  passl)(Joks  were 
prepared  for  the  moneys  invested  in  the  names 
of  the  da\ighters  on  which  their  names  were 
separately  written  by  his  direction.  Hefore  thus 
investing  the  nK)ney,  he  learned,  in  answer  to 
inquiries,  that  he  wotdd  have  full  control  of  the 
money  invested  bj-  him  as  trustee.  In  entering 
the  smns  in  his  private  book  he  mixed  them  all 
with  his  own  money,  and  passed  the  interest  to 
his  own  credit.  On  one  occasion,  in  mentioning 
to  his  wife  the  fact  of  these  investments  being 
made,  he  said  he  did  not  know  how  the  money 
would  stand,  and  that  he  would  have  to  see  his 
solicitor  about  it  ;  but  the  codicil  afterwards 
drawn  up  made  no  mention  of  these  moneys. 
These  circumstances  were  relied  on  to  rebut  the 
presumption  of  an  advancement.  On  the  other 
hand  he,  on  several  nccasions,  told  his  wife  that 
he  had  put  such  and  such  moneys  in  the  Savings' 
Bank  for  Beatrice  or  for  Dora  (the  daughters); 
and  on  one  occasion,  referring  to  a  mortgage  he 
was  about  to  take  up,  he  told  his  wife  that  he 


did  not  intend  to  touch  her  money  or  the  chil- 
dren's, iiut  to  pay  it  olf  out  of  his  own. 

//i/il,  reversing  the  decision  of  Ritchie,  K.  J.,, 
that  the  evidence  given  as  to  the  circumstances 
miller  winch  the  deposits  were  made,  did  not 
rebut  the  presumjition  that  the  money  was 
intended  as  an  advancement  to  the  children. 

JoiKs  It  al.  V.  Kinmar  t7  al.,  4  R.  it  (I.,  1. 

3.    Bequest  of"  all  my  money  in  the  bank 

or  funds"  -Tlie  testatri.x  hcciueathcd  to  liei 
grandchildren  "all  my  money  in  the  bank  or 
funds,"  and  there  was  a  residuary  he(jUesl  to 
aiu)tlicr  party. 

//(/(/,  that  these  words  did  not  include  a  sunr 
of  money  contained  in  a  chest  in  testatri.x's 
house. 

In  /•(  E»tat<-  of  Catherine  Hurry, 

I  3X.  .s.  1).,  463. 

6.  Conditional  devise— A  testator  by  his 

w  ill  devised  a  farm  to  three  of  his  sons  in  these 
wonls  :  ■•  I  give  and  ilevise  to  my  beloved  sons, 
Alexander,  John  and  Xeal,  the  whole  of  my  lot 
or  farm  on  whicii  I  now  reside  ;  that  is  to  say, 
if  tliey  will  lemain  on  the  farm  to  maintain  their 
mother  ami  four  younger  sisters."  The  sons 
made  partition  of  the  lands,  and  .sold  and  re- 
moved from  the  same,  and  never  nuiintained  the 
sisters. 

Ill  III,  tiiat  the  words  in  the  devise  constituted 
sucii  a  condition  in  comiecfion  therewith  as  that 
for  non-performance  of  the  terms  of  the  coudi- 
tion,  the  estate  devised  was  sulqect  to  forfeiture. 
Sinih/i',  that  under  section  ',i,  chapter  l'J4,  Re- 
vised .Statutes  (.'{rd  .series),  the  Court  is  recjuired 
to  interfere  when  eiiuilable  considerations  arise 
,  in  a  legal  suit  (even  though  no  exercise  of  its 
e(|Uitable  powers  has  been  solicitetl  by  the  par- 
ties, or  called  forth  by  the  pleadings),  and  to 
provide  such  relief  as  the  circmnstunces  of  the 
case  demand. 

Mclsaac  it  al.  v.  McLfod,  1  N.  .S.  1).,  '232. 

7.  Construction  of— Bequest— Uncertainty 

—  Election  —  Testator  owned  a  property  on 
Spring  (larden  Road  in  the  City  of  Halifax,  con- 
sisting of  a  leasehold  from  the  City  for  the 
period  of  999  years,  upon  which  were  erected  a 
house  an<l  a  cottage,  together  with  a  barn  and 
outbuildings.  The  cottage  was  built  when  tes- 
tator acipured  the  property,  and  the  house  was 
erected  subseijuently.  The  two  were  included 
j  in  one  mortgage,  but  there  had  been  a  fence  be- 
j  tween  the  house  and  cottage  for  a  period  of 
thirty  years,  and  the  two  had  been  separately 
occupied  and  assessed.  By  his  will,  testator- 
bequeathed  to  his  daughter,  M.  S.,  one  share  o£ 


1613 


WILL. 


1U14 


tlie  rt'(ii<lue  of  liLs  estate,  or,  iit  her  election, 
"  tlie  house  iind  premises  owned  by  me  on  Spring 
(Jiinlen  Road." 

Hvlil,  that  the  demise  was  not  void  for  uncer- 
tainty, but  tliat  the  devisee  could  elect  wiiidi 
of  tlie  two  bouses  she  would  take  ;  that  liie 
iiouse  and  cottage  having  been  rented  sepa- 
rately, tlie  cottage  and  the  ground  immediately 
surrounding  the  cottage  having  been  fenced  olF 
from  the  remainder  of  the  lot  for  thirty  years, 
there  was  no  reason  for  assuming  tliat  the  testa- 
tor intended  it  to  pass  witli  tlic  liouse  and 
premises. 
J/./:/'/-  V.  Sjiih,  '20  N.  S.  R.,  (S  R.  &  (1.),  ];«(. 


S.    Construction  of-Death  by  saniR  rala> 

mity  —  No  presumption  of  survivorship  — 
Where  two  or  more  persons,  and  especially 
where  relatives,  perish  in  the  same  calatniiy, 
tlie  law  rccf)gnizes  no  presiimption  of  survivor 
ship;  but  in  the  total  absence  of  all  evidence 
respecting  tlie  particular  circumstances  of  the 
calamity,  tiic  m.ittcr  will  be  treiitcd  as  if  all  of 
tlicni  hud  perished  at  the  same  moment,  and 
cimse(|iuiuly  none  of  the  parties  will  be  lield  to 
hiive  iransmitted  any  rights  to  tile  other. 

A  testator,  .1.  C,  by  his  last  will,  be(iuealhe(l 
a  ccitain  fund  to  trustees  in  trust  after  paynjeiit 
of  an  aniiuitj'  of  t".S()  sterling  to  E.  H.,  and  a 
disposition  of  the  remaining  income  diu'ing  the 
life  of  his  da\igliter,  L.  C.  (who  was  illegitimate). 
Then  on  furtlier  trust,  after  tbe  decease  of  liis 
said  daughter,  to  transfer  and  dispose  of  the 
said  fend  to  such  of  her  children  or  grand- 
children as  sliouM  then  be  living,  in  such  parts 
and  piopiirtions  as  she  shoulil  appoint,  or  other- 
wise in  eijual  shares. 

By  a  subse(jv,ent  clause  be  provided  that, 
should  iiis  daughter  die  "  without  leaving  any 
lawful  issue,"  that  the  fund  should  lie  paid  to 
his  nieces  in  equal  jn-oporiions,  or  to  their  law- 
ful issue  then  living. 

He  further  provided  that  the  above  bequest 
to  his  nieces  should  be  subject  to  any  legacy  or 
legacies,  not  to  exceeil  in  the  whole  i.'KKJO  ster- 
ling, which  his  daughter,  in  case  slie  should  have 
no  lawful  issue,  might  by  her  last  will  give  and 
beijueath,  notwithstanding  her  coverture. 

L.  C,  shortly  after  the  death  of  the  testator, 
married  H.  S.  B. ,  by  whom  she  had  three  chil- 
dren, and  mailc  her  will  after  lier  marriage 
(under  the  power  reserved  to  her  iii  the  will  of 
the  testator),  whereby  she  bequeathed  out  of 
the  said  fund  to  her  husband,  H.  8.  B.,  X600 
sterling,  and  to  her  mother,  E.  II.,  £400  ster- 
ling. She  appointed  her  husband  executor,  and 
he  duly  proved  the  will  after  her  death,  as  here- 
inafter stated. 


I      L.  ('.,  thi;n  I.,.  B.,  with  all  her  children,  tlirce 

I  in  nund)er,  embarked  in  February,  lS(i'J,  in  the 
steamer  "  Wiesliach,"  bound   for  Halifax,   but 

I  neither  the  steamer  nor  L.  H.,  nor  any  of  her 
children,  ever  arrived  at  Halifax,  nor  had  any 

j  information  been  since  received  of  the  steamer, 

I  nor  of  L.  B.,  nor  of  any  of  her  children,  nor 
what  had  itecome  of  them,  nor  liow  or  in  what 
manner  the  said  steamer  was  hjst,  nor  how  or  in 
what  manner  the  said  L.  I!,  and  her  children 
died,  and  which  of  said  cliildien  died  Hist  or 
last,  lint  it  was  assumed  tliat  some  time  during 
the  year  Isti'i  the  said  L.  15.  and  all  the  children 

,  that  she  had  liy  the  said  H.  S.  B.  (wlio  survived 
her),  lieing  the  three  mentioned  above,  jierislied 
on  board  the  said  steamer  "  Wiesbach,"  that 
foundered  at  sea  under  circumstances  unknown. 
//(A/,  first,  that  tiie  fund  could  not  be  assigned 
to  H.  .'"<.  B.,  as  the  heir-at-law  of  the  children 
of  himself  and  of  L.  B.,  because  such  children 
were  entitled  as  should  be  living  at  the  decease 
of  F^.  B.,  and  there  was  no  proof  that  any  of  the 
children  were  so  living,  /.  (.,  that  any  of  the 
children  survived  iiei,  and,  siic  having  lieen 
illegitimate,  the  title  of  iier  children  depended 
entirely  on  the  will  of  tiie  testator. 

Secondly,  that  the  tuiiil  could  not  be  assigned, 
to  the  nieces  or  their  lepiesentativcs  because 
their  title  depended  entirely  on  the  daughter  L. 
B.  dying  without  leaving  any  lawful  issue,  and 
there  was  no  proof  wiictluu'  she  did  or  did  not  so 
die,  /.  »'.,  whether  her  children  did  or  did  not 
survive  her. 

Thirdly,  that  the  will  of  L.  B.  could  not  take 
effect  because  .she  was  only  emiiowercd  to  be- 
((Ueatli  the  I'KJOO  sterling  "  in  case  she  bad  no 
lawful  issue,"  and  she  had  issue  born,  and  there 
was  no  proof  of  survivorship  between  her  issue 
and  herself. 

F,astly  (there  being  an  intestacy  in  the  events 
that  happened),  that  the  whole  of  the  fund  must 
lie  distriliuted  among  the  next  of  kin  of  the 
testator,  subject  to  the  payment  of  the  annuity 
to  E.  H. 

The  question  as  to  whether  the  intestacy 
should  be  computed  from  the  time  of  the  death 
of  the  testator,  or  from  the  date  of  the  events 
which  produced  the  intestacy,  was  ordered  to 
be  argued,  and   the  decision  thereon  reserved 

,  until  after  such  argument. 

'       Hartxhore  el  at.  v.  Willcins  et  a/.,  2  Old.,  276. 


9.    Construction  of— Death  —  Intestacy 

from  what  time  computed — For  the  purposes  of 
I  distribution  among  the  next  of  kin,  intestacy 
i  will  be  computed  from  the  death  of  the  testator, 
i  and  not  from  the  date  of  the  events  which  pro- 
I  duced  the  intestacy. 


Kil".  WILL,  IGK) 

•  I.     ( ',     liy    lil>    Ntlll    lirijIii'Ml  liril    III    lii.i  iMtlllil  III    llii'    ti.iliLlc),    III    Mllii.-i    li'i'i'iM'il    aM    ililrli'^l    uri 

4lall;^lili'l',    MiM.    It.,  ii  I'l^l'liuii  rilliil,  iiml   ilii'M'liI  liJH  \\  itit'n  li';^;i,i'y,  iiliiiiuiil  lli;^  ill   nil  In  I  liii   \tliiili' 

(if  llir  ilrillh    willlHllI     l.iwtlll    isMlll',    il    W.IM  111    lie  JhlnrMl   llllll   NMilllillil'illM'  llll'li'illl.      'I'llis  WilMlinl 

illMili'il  .illlollg    llJH    IlilM'i'H    ill    i'i|ll,il    |ilii|ii'l  I  |iill'>.  ;illll|iil'|/i'i|   liy   Ilin  W  ill,  lilil   hlir  illil  Mill   iiliji'rl    hi 

Ml,'^.   11.   ii;ul  rliililli'll,  lilll  hill'  uliil  liny  |ii'i  i.ilii'il  It,  III'  ii|i|ily    tin    llii'  iiilrii'^l   IhihiII,       I  tili'liil.iiil 

111,  Ni'il  ill  lilt;  siUlir  ,illi|i,  lllf  inrlllll,'il.ilii('.s  iit  llic  1!  Imiili  (■.■<,s,  a«  .i.s,-.|;;iiic,  liiiN  iliK   rliiiliii'il  llir  liiiiil 

ciihuiiily   lii'iiig  iillcily   iinkiinwii.     'Ili(;in  lii-inj^  ili'|ii.,iiliil  in  llii-  I'riijilir'.s  Kimk, 

III!   |)ICMIIII|llilill  111    lil«    llllll    llir  lIllT  .slllMM'il  //«/,/,  l|i;i|    lIlc  illili  ll'I'll  llllili  till  illlrll'^l    lllnlil 

llir  rjiijilirii,  llir  lllirr.s  nilllil  Mill  )  ilKr  lllii  ii  I  I  III'  llirvull,  lull  lli;tl,  illilc|icllll(!lll  ly  iil  I  lli'l  r  ml  i  I 
will,  illlil  llll:  lllllil  riill,Mi|lll'lllly  \Ulll  lii.l,C,  f,sl,  il.-l  llllll'  SVa,-<  111!  I'Vllll'llic  llllll  .Ml,-,.  ,\l,lllli 
IlcM  III  kill,  ,siiii  liiiil  ,siiiii'liiiiii'il  lliu  ll.'sr  111    lllf  iiinlii'y  liy  liri 

Till'   i)iii',sliiiii   u,i,i  ii.^  Ill    tin;  ilivi.siiiii  111    iIiIh    IiuhIiiiihI.    |ikiiiiliir,  ii,s   ll'll^ll■('   lur   liii    ami    lui 
flllpl  lUiiiilig  llii:  iii'\t  III  kll..      i.e.  hail  a  liintlici     ilijlili  rii,  \\a,H  ciililliil  In  an  aim  mi  it  iijiial  In  llii' 
ami  a  ,Mslci'  wliii   |iri'i|i'i'i'a,s(;i|   llllll,  ami  a  ,si,-<li'i'    liakimr  iil   I  In-  lc;^any  aflcr  iliilml  iiij,'  llir  ililil 
Sl\n.    W.  w  liK  ,-.111  \n  I'll   llllll,  lull  ilinl    lii'fiili'  tin:    iIih'    l,y    ,\l,il  lii'-uii,     lull    llial    llir   a,-i,si-m'i'    \\a,-t 
OCclirirlli'C!  Ill    llll'  i'ala,-illii|ilii:  ill    »liii'li   ,\ir.M.    11.     ciililliil    In    llir    aiiiniilil    i|i'|in,>iilril    III     ililric.-^l 
llllll  licl' I'llililrt'li  ptuisliril,  li.'avillg  iwn  ilail^'lllri'.s,     llirinili,  a,<  llir  (  nml    niirsi     |il'r,M|inir    llir  mi'i{Iii 
VV'lin.sr  r.lii|ill'ril  nnw   rlailiinl  a  , shall'  in  llir  lllllil,     r.srriii'r   nl    t  hr    wilr    ill    I  lir  hll,sliallir,'S  ri'ri'i|il    n|' 
If  .).  ('.'»  ililr.slary  wa,■^  In  lir  riiiiijiiilril  linlii  llir     ihr  inlcirsl  fl'iiiii  yrar  In  yrar  in  ali.-Hrlii'r  of  \  "ly 
tlliir  nf  .Mrs.    11. ',s  ilralli  I  liry  Wniilil  lir   r\i'lm|ri|     ilea  l' r  \  nli'Mi'i'  In  llir  rnllll'aiy. 
as  I  HI  11^  rnl  llll  rials  Inn  rrninlr,  if   finlii  I  In.'  I  iinr     II  iiiil(  v  v,    /'lo    I'm/i/i  '.-,    IJiiiil:  nf'  lliilifiix  it  nl ., 
<if  Ills  nwnilralli  I  liry  wnlilil  li,;  nil  it  Inl    tniiiir  K.    I),   |).,!)|, 

ihinl  nf  llir  fliml,  /.  r.,  Iliril'  liinlhri'',s  ,s|ialr,  I 

Ihlil,    llllll   llir    inlrslary    liili,sl    lir   rniii|Milril  ' 
flniii     Ihr    iMiir   nf   .1,    C'silralh     ami    I  hri  ,;fnlr  H-      COIIStnidlOII     Of     lU'lrS   Of  lllC    IMMI)  , 

llii's   \M  rr  riilillril,  iiicaiiin;^  of     Kt;iiiiiili(lrr,  vi'Htt.'il  or  cnntiiigriil 

Jltui.horiK   >l  <l/.    V.    lli/Lur^,/  >i/.,  -^    Irslalni'    (.1.    I',)    ilrvisnl    rri'laili     iral    ami 

I  N  ,'s  I)  I'JS  |irisnliiil  csl.'ilr  In  1 1  iislrrs  fnl'  I  lir  lifliclil  nf  Ills 
I  wn  rliilillrn  (a  i|aii;^lili'i  ,'iml  a  snn)  in  IrirsI  In 
pay  iinr  llinirly  nf  I  hr  Irlils,  issilcN  iiliil  pi'niils  nf 
10,  COIIStrilCtion  or  (>.  K.  lilSSOl,  )))'  his  tin-  iral  rslair,  ami  nf  ihr  inlnrsl  nf  llm  pnsnn 
Mill,  I  in  I  111 'Ml  I  nil  In  his  i|ail;4lilrl'  ,Mai  i.i  ,M,illii'snll  ally  In  ami  fnl'  llir  lirnrlil  nf  his  ilall;,'lilri'  iliir- 
■C'J.dlll)  "fur  hi'|-.^rlf  ami  hrr  rhililrrii,  issiir  if  ini,'  Iht  lifr,  ami  "  llpnli  ihr  ilrrrasr  nf  his  ,saii| 
lirr  iiiai'iiaj,'!',  nnw  nr  hrir.ifli'i'  liviiij,',  In  lir  rx  ilaii;ililri',  hr  ^avr  ami  liripiral  hril  the  saiil 
t'lnjii.  fi  mil  iuiy  lirlilM  or  lialiilil  irs  nf  hrr  hiisliaml  '  inniily  nf  his  rral  ami  prrsniial  rslair  in  .\n\'a 
J)nnalil  Malhrsnii,  shniilil  hr  finiii  aniilriil  nr  Smlia  iililntin;  hrirs  nf  hrr  linily  lawfully  In- 
inisfnillim;  lirii!aflrr  lirrniiir  rniliariiusnl,  with  ;  gnl  Irii,  fnrrvrr,  sliair  anil  sliart;  aliki!."  Iliialsn 
powrr  ill  his  (■.xri.'iitnrs  In  iiivrst  llit;  sanir  at  lirr  tlrvisril  thr  ntlior  liinirly  nf  his  rual  iinil  pi.'i'.-iniial 
<lrsiir  ill  j^nnil  smiiilirs  with  intrrrsi  fnr  hrr  t'stato  in  liko  inaniirr  tn  anil  fnr  the  limrlil  of 
Hiiil  hrr  rhililrrn's  liriiriil ,"  Kiihjrrl  I  n  a.  ilriliir- |  lii.s  snn  iliiriiij;  his  lifr,  ami,  "upon  thr  ilrrriiHr 
tinii  nf  L'ST'I  iliU'  ihr  Irslalor  liy  l)niial(l  .Mallir-  I  nf  his  .sail!  snii,  liu  ga\r  anil  hi.'ijiu.'iitlieil  thr.saiil 
Hnn.  Thr  pl.iintill',  In^^rthor  with  .Malhr.snii,  rrlnainin;.;  ninirly  nf  his  rial  ami  prr,sonal  rslair 
trslalor's  wiilnw,  ami  alinlhrr  wcrr  appninlnl  in  N<i\  a  .Srnlia  iiiitn  ihr  lirii  sof  his  limly  law  fully 
C'^ri'iilni  s.  Ti^slatni'  ilinl  in  I.Sdl,  llirir  lii-ing  In  Im;  lii!gnllrli,  fnrrvrr,  sliair  ami  sharr  aliki,  ' 
111,  thai  liiiir  anil  at  ihr  linn;  nf  tin;  making  nf  j  Hr  filllhrr  prnviilnl  that  "in  tlii;i;v(;lil  nf  tlit; 
tin;  will,  rhililrrii  of  his  ilanght(;r  living,  liiil  '  dralh  of  rillirr  nf  his  .saiil  uhililrrii  (('('///i^k/ iVik^'k/ 
tin;  rslatii  wiiH  not  srlllril  until  .Srptriiilirr  IS"-),  In  irs  ns  n/oriMiiil,  llioii  the  survivor  to  liavi;  llir 
whrn  Malht'.son  ilr|insilril  in  llir  I'uoplr's  Hank  ;  whole  of  the  rents,  Ls.siie.s  ami  prnlits  iluring  hrr 
^tiUIHI,  lieing  the  lialanri;  of  the  lie<|ueMt  flue  IiIh  :  or  lii.s  life,  anil  at  her  or  lii.s  decease  to  ile.scenil 
wife  after  (l(;iliic'tilig  the  ainniinl  iliir  liy  him  to  '  to  lliu  lawful  liriis  of  hrr  or  his  lioily,  lawfully 
the  estate,  with  iiitt;rest  to   the  ilali;  of  the  ile-  I  to  lie  liegotl(;n  a.s  afore,saiil." 

posit.  Ill  the  same  inoiitli  lie  iiiaili;  an  assign-!  There  was  also  a  devise  over,  in  the  event  nf 
ineiil  iiniler  the  Jiisnlvent  Ai't  of  ISti!).  During  the  death  of  Imlli  his  eliihlreii  "  wilhnut  law  fill 
the  ten  intervening  years  the  ainnunt  had  lieeii  heirs,"  of  "all  his  estate,  linlh  real  uinl  persnnal, 
used  liy  him  in  his  Imsiness,  and  fnr  his  family,  |  in  the  I'rovince  nf  Nova  Seolia,"  to  his  lirother, 
though  without  the  knowledge  or  .sanetion  of  j  and  of  his  money  in  the  funds  in  Kiigland  to  S.  K. 
his  wife,  and  entries  were  made  liy  him  from  :  and  M.  H.,  share  and  share  alike,  upon  their 
time  to  time  in  aceoualH  rendered  to  the  widow  ,  marriagr  or  attaining  the  age  of  twenty -one 
(who  with  hiiiiHcIf  chiefly  niaiiaged  the  business  ,  years. 


1(117 


WILL. 


Kil.S 


'I'lic  li'.-tliilof'.s  Mini   iliiil  iniiiy  V'H'.-'  i'K"  ^^'ili  ilicii  .ir  ^'iiiiiilrliililicn  |ii«;uil,s  lii.t  or  Iht  xli.iri; 

mil     Ir.ivili^^    iiliy    iMHIir.      'I'lii'   (liiii;,'lil  i|-    iljril    in  of  iiiy  <'Ml;ilf. 

I''rlil  limy ,    lHli."i,  IliU  ill}<  llilil    llvi-  'llilillill  (soils),  III  till'    lifllilll  ll    rlilllsi'    llli'    llsllltor    Mild:    To 

foiiidl  svlioiii  Hill  A  iNcil  liiT.    'I'lic  son,  ,l.(  ■.  I'.  II.,  prrvnil  cli^|iiili' .iMij  (|is,salis|'iii-lioii   In  llicilivi- 

who   |it'('i|<'i'iMsi'il    Ills  MiolliiT  anil   ilii'il   \\illiiiiil  sjoii  of  my  |ii  ojin  ly  .'itlrr  my  ilnil  li,  I  may  iniUr 

|ra\  ill).' any  I'liililirn,  was  lis  Jul;  al  llii' I  jini' of  till'  siniii'  a|i|ioi'l  ioiiini'iit    of    my    Mininlii'  I'sliitr,   oi 

ilralll    of    till'    trsliiliil  ,  .iinl    liy    .'i    \vill    ni.iilr    in  |ial  ts  I  Inl  rof,  lo  l.iKi'  I'lli  rl  as   ii'S|ii'i'l  s  liiy  ell  il- 

.May,     Is.'iii,    ili'visi'il    ami     lM'i|iiral  Inil     all     Ills  iliiii  ami  ;.'r.iiiilrlnMi  rii,  or  somi' of  t  lii'iii,  afli'i 

"I'sliiti',  ii'al   anil   |iiM'.soiial,    wlii'tlii'r   In    posM's  my  iliivt  li,  il  is  iii\   s\ill,,inil  I  ijo  m  iIit,  t  li.il  all, 

mIoii,  rciniilinli'r,  ri'Misjon  oi  t'\|ii'i'taiii'y,  iiirlii  any,  ami   ivcry  |ioilloii   of  my   .Minnilli'  I'statr, 

hIvc    of   Ihi'   (llstrilnil  i\i'    sliarc    Im    liail    of   Ijii'  « Inl  lirr  niaisli  land  or   n|il.iiiil,  \s  linli   liy  ilccils 

(^sliit.v  of  Ills  l.ilr  f^ramlfal  licr,  .1.   I'.,  1 1  lir  Irslaloi )  i\i'iiiliil   or   loin-  I'M-riilnl    liy  iiii',   I    liaAii'on 

to  wlil'li  111'  «as  inl  ll  It'll  iiinlir  Ins  will,  or  in  M.iiy  M'ynl  or  shall  lonvcy,  oi  liavi'  i'.\|ii('sscil  oi'  shall 

w  ay  ili'iiv  alili!  I  lironyii  or  from  him  "  to  his  wifi'  <'\|)rrss    to    loiivi'V    to   any    of    my   I'hililri'ii    or 

I'l.   .\.   II.,  Iirr  hills,  ami  ,assli;Ms  fori'M'i'.  L'r.imlrhiMi  rii,  or  wliirh  i  h.nr  .illolliil  or  sh.ill 

/A/'/,   on    I  III'    aiilliorily    of    ///;//(/    y.   driliir,  allol    ami    a|i|iorliiiii    to   any   of   my   ihililrcn   or 

."i  ll.  i\   (   .,  .slid,  I  III- (|iii  ,1  Ion  111  ra-,i's  ollliis  kiliil,  ),'ra,lii|r|ii|ilri'li,    ami    ^liall     part  ii'lllarly    ilcsi'liiii^ 

lH'iii;{  iim^  of  iiicri!  Inti'iil  Ion,  ami  as  till' lan;^ii.i;;i'  ami    ili'^i^iialr    In    any    wrilinu'    liy   ini'    sIl;miiI, 

of  a   will  must    hi'  I'onsI  rinil  in    I  hi-  lif,'lil    of  i-ir  sh.ill,  m   I  In-  iln  i.-.ion   of  my  i-la|i',  ln'   Inrlii'lril 

I'limslaliri'S  siirroiimllti;^'  I  hr  tr.- lalor  at   I  lir  I  liiir  III  I  hr  shares  of  sinji  I'liiMl'i'll  ami  l;i  a  mli'hilill'i'li, 

of  lis  I'Xi'i'iit  ion,  .'iiiil   on  I'oiisiili'r.'il  ion  of  all   its  ami  I'M'ry  of  my  I'hililrcn  ami   L;ranili'liililri'li   to 

|ii'ovisloiis  ;  ami  till' \v  ill  in  this  lasf  liciii;.' inaih'  u  li'iii   or   In   whosr   iiaiiii'  I    li.ivi'  maili'  or  shall 

in  .No\  a  iSc'ol  1.1,  whi'ii'  |ii  Imoniiiil  mi'  i>  o|i|iii>i'il  iiial>i'  any  siiili   ilri'il   or  .illol  imiil ,  Nhiill   aci'))! 

Ill   ihi' i^ciiiiis  of  ihi'  ill  . I  inn  ions  of  the  I'oiinlry  llii'  ;-.>A\tv.   low.inls   tlirir   .'-lians   rrs|)i'rl  ivcly    in 

and    111   lh(^    ii'llrr   oj    llir    laws    n'L,'iilal  inj^     llii'  my  cstaii',  iVi'. 

ili'sri'iii  of  ri-,d  I'^l.ilr,  'I'uo  I'oilli'lls  Will'  niadr   li,\   llic   h'sl.itor,  mir 

Thai    llii-    VMirds  "  hi-irs  of    ihr    liody  "    In    tin ih;'  'J'Jnil  Ortoliia-,  iMIi'J,  and  llii-  ollni   on   I  hr 

uill    of  ihi'  ll  st.ilor,  .1.    I'.,  Iinilil     ihildnn,  .uid  l.'llh    Sr|i|i'iiilji'r,   I.Sdl,  lirillL^   Ihiday  liifoir    Ills 

that  .).  (i.  I'.   II.  look   a  Ni'strd  rcinaindcr  in  fi'i'  dralli. 

at   t  hi'  drat  ll  of  I  hi'  I  rst  at  or  in  t  hi'  really  di'\isi'i|  ||   ,i|i|)i'.iii'd  I  Ij.il   a  I    I  hi'  I  inir  of  I  hr   rM'i'ill  Ion 

111  his  niol  lirr  .IS  afdli'said,  iilid  .1  V  I'^li'd  inlil'i'sl  of   Ihi'    will,lhrii'    w.is  a,  ri'd    liook    In    r\is|i'lii'r, 

ill    the  iii'i'soiiilly  so   lii'i|iii'allii'il    to  her,  whii'li  in  wliirh   tin'  tislalor  li.id    madi' I'i'ilain  cnliii's. 

o|ii'iii'd   to    let,    in    lii'i'  aflcr    linrn   ililldri'ii   sm'-  Siili.-('i|ni'iit    lo    iln'   i  "vi'i'iition   of    tl.,'    will.    Iml 

rrsslvrly,  .■Mid    llial    all    llii'    inli'ir^l    of   ihi-   s.aid  jiri'vioiis    lotln'   I'M'cill  Ion    of  I  hi'    last  I'oiliril.    il 

■  I.  (i.  I'.    II.   Ill  llii'  s.iid    II   ll  and  |)i'r.^oiia,l   c^tali'  a|i|iiari'd    ill  il    In'  l%i'|il    amilhi'i'  hook    lallcij    I  hi' 

IllSM'd  lolii,  uidou    iimirr  his  will.  Mark     hook,  in    which    hr    wiotr    lllr     |ollllV\illL; 

J/iiJiliiir/'iii  1 1  (i/.  \.    //(///7)///-/o/(,  '.' Old.,  .'il'-'.  |iii'farr:     " 'I'liis   hook    is   k('|il    hy    liir,   and    Ihr 

rhaiL'is,    I'll!  ill's    .'ilid  nirmor.uidlims    liiailr    hnr- 
in    air     in     ronfoiniily     willi     ihr     rlaiisr  ,    in- 
12.     <'ons(riH'(loll     or       IncoriXiration     of   snlid  in  my   will,  I'Mrnud  on  tin;  Hth   .Mari'h, 

hook.s,   ■S.-r..,   ill       lti'|)illili(','U.ioii      .\    lr-,l,ilor  in  |.S(i'_' ;  ami  I  drsiic  and  dirrrl  tli.it  ihr  iilnniints 

Ihr    loiirlri'lil  ll    rlail--i'  of    his    last    w  ill,  ('.MM'liliiil  j  liL'trin    rliar;^'('il    .I'^ainst ,    and    ihr    srMial    allnl 

,Slli    .Mai'ili,  ISli^,  .said  :    liiasmiirh   .is  srvrr.il   of  niriits  and   dlvision.s  of  my    .\liiindii'  rjlatc  and 

my    rhildrrii   ,im[    /^'ralidrliildiin    liavr    rrc'ilNrd  olhn   lands  iiiid  |)ri'soiial    |)io|ii'rty  inadr   to   iny 

anil  may  rrrt'ivr  from   nit:  advaiirrs   In   iirrson.il  rhlldrrn  ami  thrir  lirirs  shall  hr  .idhrird  to,  and 

or  rral  t'slair,  or  in   Iml  h,  wliirli  il    is  my  dr^irt'  liind  all  iiartirs  on  I  hr  dist  rihiil  imi  of  my  est  ale, 

should     hr     rliar^^rd      aL^ainsI      llii'ir     irs|)rrli\r  hoi  h  rra  I  .i  ml  |irr.-o|ia  I.       .\Mii--    .s^|;.\  \I  AN." 

shaifs,   |)oi'lioiis  OI'   inirrrsl,   in  ami   out  of  my  'riii:  rnl   iiook  t'ontainrd  tlir  follow  Iiih  "'niiyi 

t'slalt'    or    soiiir    |iai'l    Ihrrrof,    I   tli>  dii'i'i'L   and  |ii'o\rd    also    to    lie    in    tlir    h.'imlw  ritiii;;   ol    the 

oidrr,  and    my  will    \<.  lli;il  ,ill   ,mI\  alirrs  of  rr. il  Irhlalor:      ".Sr|il.    'JT,    1>*II.      'I'his   hook    I-    in- 

or  |)iisoiial    |irii|ii'rly  and    all  siiiiih  and   rharj^rs  U'lidrd  hy  me  to  niakr  rharj^rs   to  earli   mrmlirr 

of    what     natiiri!  or    kiml    .sot^ver,    wliieli     liavi;  of  my  family  us  oeeasion  may  rei|iiire  froin  linitj 

hri'ii  or  shall   lie   hy  iiir   rnlrird  or  stM    down  as  lolinir  as  1  may  think  jiisland  ei|iiiii  and  rl;,dil, 

adviuieemcnl  to  or  rhai'i^ed  to  or  aj^ain.st,  any  of  il  hiing  my  ili:sirr  to  make  all  ei|iial  as  ri'jai'd.s 

my  i:hililreii  or  '.'r.indcliiltli'eii,  in  ii  hook  ll.setl  or  my  reiil   and   personal   pioprrty,  w  hirh   m.iy   he 

111  he  used  hy  nie   for  that   |)iirposi',  shall,  in  Iht:  left    liehind   when    I    have  for  a  hrller  world." 

dist  I'ihiil  ion  of  my  estalt:,  stand  a,s  advanrenient  This   hook   also   rontaiiieil    the    following   tiitry 

ni.-idt!    to   such    ehildreii    and    grandrhililri  n    vi'-  wliirli,   however,  was  srored  arross  hy  diagonal 
spi;i;tively,    and    he   taken    hy  each   tif  siieh   t:liil.    pencil  lines  :    "  This  hook  i.s  kejil  hy  me,  and  the 
54 


1G19 


WILI. 


I(i2(> 


cnlricH  uiiil  chiirKc^H  tlit'icjii  i^'ivcii  iiiinlc  in 
iiccon lance  with  tlir  i'Iiiumch  iiiHt'itcil  in  my  will 
rxcciitnl  on  tlni'-'.'fril  ScptfnilKT,  IS(il,  nlcirinK 
to  lliii  Hiinu'.  —Amos  Skaman." 

It  iiplirarccl  liy  llid  tcHliinony  of  K.  S.,  one  of 
the  cxccntorn,  that  the  tcHtalor,  ahout  a  month 
iH'fdi'c  liiH  ijealh,  hiiiI  the  rt'<l  hook  to  hinj,  ami 
that  hi!  Hhortly  after  miiil  to  him  refeirin^  to 
thiH  ho«)k  "  keep  it,  take  eare  of  it.  Vou  will 
Rco  hy  thai  how  I  want  itiy  property  diviileil." 
The  testator  al.Modirecteil  V.,  who  look  the  hook 
to  R.  S.,  to  hIiow  il  to  liiH  (teHtatorV)  HonM,  an<l 
to  «ay  t(i  them  "  It  in  to  he  the  tinal  (livinion  of 
my  ewtate  aH  the  hook  will  show  them." 

It  also  appeared  that  the  testator'  kept  lUv 
black  hook  in  his  own  poHsession,  and  that  he 
told  A.  Mel''.,  llu!  (!xeculor,  that  he  had  made 
the  red  hook  null  and  void.  At  the  time  of  Ihi; 
exeeuti(»n  of  the  last  codicil,  ho  told  A.  McF. 
that  tho  Ix-Hjk  waH  in  liiH  rud  box  where  he  kept 
hiH  money  ;  that  this  hook  containeil  his  direc- 
tions respectirif^  thi;  disposition  of  his  property, 
and  that  he  rtdied  on  him  tose(!  that  hisdiri^ctions 
as  therein  given  were  carefully  fullilled.  The 
testator  also  told  A.  McK.  that  he  woidd  get 
the  keys  of  his  hox  from  Mrs.  McF.  A.  McK, 
took  the  keys  and  founil  that  one  of  them  was 
the  key  of  this  red  ))ox.  He  opened  the  red 
box  and  found  the  black  iKiok  in  it. 

A.  McK.  testified  that  this  was  the  same  book 
which  the  testator  had  before  repeatedly  shown 
}iim  as  the  book  kept  in  connection  with  his 
will.  He  further  testified  that  the  entries  and 
writings  in  the  book  were  entirely  those  of  the 
testator. 

Neither  of  the  codicils  contained  any  reference 
to  either  the  red  or  black  liook,  or  to  any  cb'eds, 
writings  or  documents  of  any  kinds  except  the 
will  itself. 

A  paper  (marked  No.  l.S)  was  found  signed  by 
the  testator,  and  containing  allotments  of  land 
to  his  sevei'al  heirs,  all,  except  one,  at  the  like 
valuations  contained  in  the  Idack  book.  A  McF. 
prepared  this  paper  after  tho  execution  of  the 
will  at  the  testator's  request,  wlio  returned  it  to 
him  signed  with  the  valuations  filled  in,  and 
told  him  to  keep  it  with  his  will. 

Nine  deeds  were  found  signed  by  the  testator, 
three  dated  'J5th  March,  IS54,  and  six  dated 
14th  ilanuary,  18()4.  A.  McF.  staled  that  the 
deeds  of  ISM  were  hande<l  to  him  Ity  the  testa- 
tor in  18(52  or  ISG.'l,  who  told  him  to  retain  them 
aa  escrows  and  deliver  ^iiem  to  the  parties,  or 
those  who  init,'ht  represent  them,  after  his 
death,  should  he  (testator)  not  deliver  them  be- 
fore. These  deeds  were  never  actually  delivered 
to  or  accepted  by  the  grantees,  but  they  were 
registered  by  A.  McF.  after  the  testator's  death. 
The  deeds  of  1864  were  signed  in  the  presence 


of  ('.,  a  sidiscribing  witnexs,  to  whom  tcHtalor 
said  al  the  time  of  suliscriplion  :  "  Perhaps  jou 
may  be  called  on  some  day  lo  piove  thcHc  dceilH, 
and  perhaps  not."  Ti'stator  retained  thesu 
deeds  in  his  possession  until  his  death,  but  lohl 
A.  .McF.  shortly  befo'c  his  death  where  to  get 
them,  anil  that  he  u  islicd  him  to  lake  them  for 
delivery  to  the  parties  when  he  (testator)  waH 
goni!. 

//</(/,  as  regards  the  books  and  papers,  /h  r 
KesKarres  and  W'llkins,  ,1.1.,  .lohnslohi',  F.  ■!., 
iliiHiiilitiii,  that  the  red  book,  and  I  he  eiitrien 
existing  Iheiein  at  the  (inie  of  the  exeiiilion  of 
llie  will,  were  alone  irrrorpDraled  in  it,  and  that 
th(!  black  book  rrriist  be  enl  irely  lejerled,  as  also 
all  entries  made  iir  the  red  book  subsei|uenl  to 
the  execution  of  the  will. 

/'(;•  tlohnstoire,  F.  .I.--That  ihe  lilack  lioiik 
aloire,  with  the  entries  whiih  il  coirtaiired  on 
the  i;Hh  .September,  18(14,  the  writing  No.  I.'J, 
and  all  the  deeds  wer-e  so  incorporated  in  the  will. 

/'*r  Wilkins,  ,1. That  the  deeds  of  I8."i4  ami 
not  those  of  18(14  wer'e  so  irrcorporated. 

liy  another  clause  of  iIkj  will  the  testaloi', 
after  reciting  the  inrmediate  division  of  that 
portion  of  his  .Miniidie  estate  called  the  .loggiirs 
would  be  irrjuriorrs  to  the  jirolitable  working  of 
the  (juarries  and  ledges  of  frc^estonti  ther'eon, 
devised  to  A.  Mel'",  for  a  term  of  years  all  that 
[lorlion  of  the  shore  fioirlagi'  of  his  .Mirrudie 
estate  lyiirg  belweeir  Dogfish  ('ovo  and  I^ower 
('ov(!,  wilh  lire  larrds  ad  joiriirrg,  i*tc.  Iir  referring 
to  the  reversion  of  this  property  in  sid)sei|rrent 
clauses,  the  testator  described  it  as  "  the  said 
pr'operty  called  the  doggins  as  her-einbefore 
described,"  "  my  doggins  estate  before  men- 
tioned," "  the  said  .(oggins  eslale," 

Il  appear'ed  that  llie  prirrcipal  and  more 
valuable  ([irarries  wer-e  in  Lower  Cove. 

Held,  ptr  DeslJaries  and  Wilkins,  d.I.,  dolin- 
stone,  K.  J.,  expressirrg  no  positive  oj)inion, 
that  as  the  word  "  b(!tweer»  "  was  unarrrbigiroirs, 
and  was  sensible  wilh  reference  to  exlririHiu 
circumstances,  that  it  must  be  considered  iir  its 
strict  and  primar'y  .sense,  and  could  not  be  con- 
ti'oUed  by  the  most  conclusive  evidence  of  an 
intention  to  use  tho  word  in  another  sense,  and 
therefore,  that  the  (juarries  both  in  I)f)gtish 
(^ove  and  Lower  Otve  were  excluded  from  this 
devise. 

Hy  the  tenth  clau.se  of  his  will,  the  testator 
devised  to  A.  McF.  (the  side  executor  named  in 
his  will)  certain  lands  in  trust  for  the  use  and 
toward  the  support  and  mainteirance  of  a  public 
school.  IJy  the  codicil  execui  id  just  before  his 
death,  the  testator  appointed  R.  8.  execirtor 
"  in  connection  with  A.  McF.  with  the  same 
power  and  authority  as  if  his  name  had  been 
originally  inserted  iu  the  will." 


1G21 


WILL 


1022 


//(/(/,  lliiit  K.  S.  wiiM  iiiit  II  iniHiri'  with  A. 
McK.  of  tlii^  Hiiid  IiiiiiIh. 

Ity  the  Hi'vcnti'ciitli  cliuiHr,  tlit'  tcNliitui'  ili 
ntrtcil  lliiit  tilt'  ri'siiliH'  III  liiH  I'stitti'  (i^xix'pt  iiH 

('iintiollril  liy  picvinlis  rlallsiH)  mIiuiiIiI  lie  ili\  iilnl 


iliiri'  iif  wliii'li,  Niiliji'i't  1)1 1'i'i'tiiiii  I'diiilitioiiH,  ho 
M'si'i  veil  fill'  liiM  Niin  ( '.  Till'  will  I  lini  coiiiiiiiiuil : 
"  liiil  III  III!  I'lLNi'  nIiiiII  liny  ciciliidr  nf  i^iiliur  of 
my  I'liililn-ii,  or  miy  IiiinIkiiiiI  of  uitliur  of  my 
I'liilili't'ii,  lUii^lili-i'H,  liiivt' liny  rliiini  oc  ilcmiiiitl 
inlii  rj^lit  i'i|iiiil  hIiiu'cm,  lie  tlicii  ili'viHcil  si'V-  ii|iiiii  llir  hiiiiI  t'xi'riilni'i'H  iir  I'xt'ciitiir'H,  li'iiHtci'H, 
«!nil  (if  tJHwit  hIiui'cm  ill  IniMl  in  It.  S.  Inr  rcrliiin  luil  llirir  n'Mpfi'iivi'  mIiiucm  hIihII  lir  kiipt, 
litiliinl  pi^l'Hiiim.  <  iiinl  the  ililcn'Mt,  iiiiIh  itiul  pinlitH  tliri'cnf,  hIiiiU 

I/ilil,  /if-r  •liiliiiHtiiiK',   I''..    >l.,  tliiit    till'  ti  iiHlH  I  III- piiiil  mill  iillowiiil   III  lliiMi  iiiiiiiiiilly  liy  llx'ir 
well'  not.  iit'i'i'Hsiirily  iiiNcpHi'iilil)'.  ;  m  I  iiisIii'm  iiiiil    iIk'    Hiiiviviii'H   of    tlii'in   iliirin^ 

|{y  tilt!  twciity-tliii'il  cliuiHt!  nl  tlic  will,  lin'  tlnii'  ii'Hpiuiivc  livrn,  mill  iln^ir  rttct^ipiH  only 
tcHliilor  |)roviilu(l  thiit  fmiii  llic  n^MpccliN  i'  mIihi'cs  '  mIiuII  opfiiiii'  an  ilinclim'(<i'H," 
in  liiH  <!Htiil(!  of  till!  i^liilili'cii  of  liiH  iIi'i'I'iimimI  Till'  ilaiii^'litt'i'M,  ('.  M.  mill  A.  K.  I''.,  having 
HoiiM,  Aimm  T.  am!  ■ImncH,  iIhtc.  nIioiiIiI  he  iipplicil  for  iiiiiiii'iliiili' payiiu'iit  of  liie  HJiai't^s  ilit- 
ahatud  Hiich  ailvimccs  aH  lui  hiul  iiiailo  to  the  viwil  to  tliciii,  iinli'iiiiiint'lril  liy  any  trust, 
Haid  HonH  n^Hpi^ctivoly  in  tlniir  lifcliincs  in  like  //(/»/,  I  hat  Ihii  I'liMir  iliroclion  anti  intttntioii 
nianni'i',  ami  cviih'iu'eil  in  tlin  Kaiiie  way  iih  in  of  thd  tfmlator  was  that  tho  HharuH  of  tho 
till!  I'liHc  of   tin:  lulvani  TM  iiiiidi'   to  IiIh  Hiirviviiij,'    ilaii).!lili'l'H  nhoiild   ln!  Iii'ld   and   invt'Mtcd   liy   tho 


children. 


liiislci'M  dining  I'livi'itiirr  and  tlu!  iiH'omi!  only 


//(/(/, /Jt!/*  .JohliHloin',  v..   .1.,  that  the  advaiH'i's    paid  to  then 


I'Ik'  cosIm  of  all  partif'M  wero  directed   to  lio 
(laid  out  of  till!  I'Htalc. 

t'litili  1 1  III.  V.  Fiiuli  >t  at.,  '_'<!  N.  S.  K., 

(S  \i.  *.().),  71. 
Mlii'iiH'd  on  nppcal  to  the  Suprcini!  (.'oiirt  of 

If.  s.  (;.  K.,  tiiiic,  \n:  l.  t.,  kj. 


to  Ih!  rharj^ed  ajjaiiiHl  the  tiliildii'ii  of  Aiiios  T. 
ami  .lanii'M  could  only  lie  iisci'itaini'd  in  the  Name 
way  as  in  tlu:  caHe  of  the  otli(!r  licii'H,  and  iin 
(lireeted  in  the  foill't(!eiitli  and  tifteeiith  cI'iiihcs. 

The  (.'odii'il  of    the  •Jviiid  Oi'tolier,    iNlil',   pro. 
vided  that  in  ease  i'i!i'taiii  di^vi.Hees  and   h'>^ali:es  '  Canada, 
therein    iiani(!d    should    iiiiike   any    I'liargeM   or  I 

claiiiiH  iiKainst  testator's  estate,  su.'li  eharues  |  ||^  t'OriNtrUftlOII  Of  J.  W.,  by  IiIh  lUHt 
Hhouhl  lie  dedileted  from  the  .sliares  they  iiiiKht  ^.jn^  ,^,„„„^,  „,|„.,.  ,|,|„y.,^  devised  all  his  real 
l.f  entitled  to  r(!.'eiv.!  "either  from  his  pei'Honal  j.^,,,,,,  ,„  ,,.„st.ees,  to  let  it  .lliriiif,'  the  natural 
estate  or  from  the  rents  ari.siiig  from  his  (|uarries  ijf,.  „f  ,,i„  ,^,if,,_  ,„,_  i„  ^.,^^^^,  „i„.  „|,„„i,i  .jj,.  |„,f,„.o 
or  .lo>,'KinH  hinds."  I^j^^  youngest  surviving  child  should  attain   tho 

J/i/il,  i,<r  Desltarres  and  Wilkins,  .).).,  that  j  ^^^  of  tweiityone  years,  then  until  such  child 
the  codicil  could  operate  accordiiiK  to  its  ex- ,  „i,„„|,i  ,^t,tn,„  ti.nt,  ,^^„._  t„  ,.,,,,,, iv^,  the  rents  and, 
pressed  intent  without  a  contravention  of  any  |,j,,.,.  ,„^yi„^  a  certain  annuity  mid  charges,  to 
rule  of  law  or  eipiity,  as  it  simply  imposed  a  j  ,ijvi,i,,  ,i||  l.almices  eiiually  mn.mg  all  his  I.eforo 
condition  on  a  mere  voluntary  act  of  liounly  on  „„,„tj,„„,,i  diihireii,  and  such  further  chihl  or 
till!  part  of  the  testator.  ,  ,.1,11,1,.^.,,  ,^„    ,„ij,|,t  |,o    horn.     The    testator,  in 

fir  .folmstono,  K.  .J.,  that  tlu!  iiir|uii'y  was  ,^„„t|„.,.  p,^,.^  „f  1,)^,  vs'jll,  clearly  indicated  his 
premature  until  the  claims  against  wiiicli  this  i„|,'ntioii  that  upon  the  decease  of  lii.s  wife  or 
codicil  professed  to  1m!  direitcd  wen;  asserted  „,,„|,  I, i„y„„„j,,,Hi  surviving  chihl  attaining  tho 
in  distinct  form,  ami  that  miy  olijection  lo  it.s  j  ng^.  of  twenty-one  years,  whichever  event  Hhould 
execution  eouhl  only  come  hefore  this  Court  in  ;  |,isi  hapien,  the  real  e.stme  should  he  sohl  mid 
its  appellate  juri.sdi<!tion,  and  must  he  lir.sl  the  prmeeds  divided  e(|ually  mnoiig  hissurviving 
raised  in  the  1'rol.ate  Court.  children.       During    the   life    of    the    widow    a 

III  rt  h'xta/r  o/Siama,i,  'J  Old.,  IH,-|.  j  ,|,iug|itcr  died,  leaving  children,  who  claimed  tho 

daughter's  share  of  the  rents. 


//«/(/,    that  tliey   were  entith!il  to  .such  share, 
JMiiid  tt  (d.  V.  Viiilfi  et  at.,  H.  E.  D.,  46. 


1.1.    Construction  of  -  Legacy  —  Appeal 


18.   Construction  of   Intention  of  testator 

—  Costs  — The  will  of  the  Hon.  .1.  .McC.  ap- 
pointed  his  daughters,  A.  K.  F.  ami  ('.  M., 
executrices,  anil  N.  II.  M.  and  I).  .S.,  executors. 

It  tlien  devised  to  his  executrices  and  ex(!eutors  from  decree  of  Judge  of  Probate  —  Costs  not 
all  his  estate,  real  and  personal,  in  trust,  to  sell  allowed,  on  the  ground  that  appellant  huc- 
the  real  estate,  and  after  paying  certain  dehts  1  eeeded  on  a  ground  not  taken  below  and 
and  legacies,  to  divide  the  whole  balance  of  the  claimed  more  than  he  was  allowed— The  tcs- 
proceeds  of  the  estate  into  twelve  eiiual  parts,  i  tator  in  one  part  of  his  will,  after  devising 
live  of  which  he  gave  and  devised  10  his  daugli-  j  certain  property  to  his  wife  for  life,  directed 
ter  C.  M.,  four  to  his  daughter  A.  E.  F.,  and  1  that   after   his  decease,  the  whole   of   his  pro- 


lij'2:] 


WILL. 


1{,'24 


|ici'ty,  I'ciil,  |ii'rHiiiiiil  mill  iiiImmI,  iinluiliii^  tliiit 
(U'viNcil    Ici    liJH    wile,    nIioiiIiI     lit'    (lividi'il    iiiti> 

HOVIUI    l'l|lllll    Hlllll't'H,   mill     lliNtl'illlltltll     IIIIIIIIIK    llJM 

cliilili'i'ii  in  pritpoi'tiiiii  of  t'liiir  mIhuvx  to  IiIh  two 
«i)im  iiiiil  mil'  hIi;uc  ciii'li  to  tliri'r  iIiui^IiIi'im,  In 
a  HiiliMoi|iii'iil  puil  III' (lie  will  III'  ilii'i'i'li'il  tlud 
iiFtir  till'  ili'Hlli  of  Ills  w  JtV,  llic  piiitjoii  lit'  his 
csfiitc  ilcvisnl  to  licr  fill'  lifv  nIiouIiI  lie  iliviilcil 
into  four  fi|iml  nliiiii'M  ;iinl  ilistriliiitcil  i'(|imlly 
iiinonn  I  he  UMi  sons  iiml  two  of  tlin  ilaugliti'i'M, 
tlio  Hiii'viviir  III'  siirviMirs  <<v  ihrir  lu-ii's. 

ffilil,  tliiil  iIh'  \MiriIs  ill  llii'  lifst  part  of  tin' 
will  iiiiihI  111'  rcail  .■•o  as  to  uNccpl  that  porlioii  of 
till'  cslatc  ri'i'crvi'il  foi'  tin'  wiilow,  or  tliat  llif 
Wiinls  ill  llii'  siTiiiiil  pail  liriiii;  iiiiiiiisisli'iil  with 
tliii''^»'  of  llic  liisl  )iait  iiiusi  prevail,  tlii'  irsiill 
ill  (.'itiu'l'  I'asc  lii'ilij,'  to  cM'i'pt  till'  fstatc  ilr\  iscil 
to  ihu  willow  for  life  from  tlio  ^ji-nural  '.'state. 

Jii  rc^'iiiil  to  I  III'  "  hoiiit'stuad,"  luMiii;  a  ]iortiiiii 
of  till!  L'slatf  ili'visi  (1  to  till!  testator's  wife  for 
life,  it  was  jiroviileil  that  in  ease  liotli  the  sons 
duelineil  to  ai'i'e|it  il  at  a  viiliiation,  it  slioiilil  lie 
Bolil  mill  the  pioi'i'i'ils  ilivideil  into  tour  ripial 
whares  ainl  ajipropiiateil  as  last  ahove,  Thi' 
pi'opertj'  was  arcejileil  liy  one  of  the  sons,  anil 
thoru  being  no  provision  loiihe  aiiplicaiion  nt 
the  jiroceeils  in  stich  ease, 

llilil,  that  it  iiinst  he  treated  as  jiait  of  the 
assets  wliieli  the  testator  diieeteil  lo  he  divided 
into  seven  eijiial  shares  and  ilistrilmted  aeeord- 

iiiK'y. 

K.  A.  It.,  one  of  the  testiitor's  daili^htei's,  died 
without  issue  hefore  the  testator's  wile,  hut  after 
attainiiii;  tlie  a'„'e  of  ."(I,  at  which  age,  under  the 
terms  of  the  will,  she  would  lieeomc  entitled  lo 
the  halanee  of  her  share  of  the  estate,  a  portion 
of  it  lieini,'  made  payalile  at  the  age  of  "21. 

Iltld,  that  after  reaehiiig  tiie  age  of  30,  her 
right  to  her  share  of  the  legacy  was  indefeasilile, 
tIloii;_'li  payuieut  was  jiost  poned until  1  heniother's 
death,  and  that  her  exei'\itiii'  was  thei'efore  en- 
titled to  receive  one  seventh  of  the  a])))raised 
value  of  the  "  homestead'" 

'J'ho  appellant  having  sueeeeded  on  a  elaim  not 

made  hefore  the  Judge  of  Probate,  and  having 

claimed  more  than  was  allowed,  no  eosts  were 

given. 

Ill  re  Esfnft  of  Clark,  (J  U.  &  (i.,  DO  ; 

(iC.  L.  T.,  143. 

16.    Cons  ruction  of- license  to  sell— A 

testator  devi  ied  his  real  estate  to  his  wife,  "  in 
trust  to  sell  and  dispose  of  the  same,  at  such 
times,  and  in  such  manner,  and  in  such  portions, 
as  she  might  deem  suilahle  and  prudent,  and  to 
invest  the  proceeds  arising  from  such  sale  in 
some  safe  and  profitable  security,  and  to  apply 
the  proceeds  arising  from  such  investments  in 
the  support  and  maintenance  of  herself,  and  in 


the  siipporl,  eduialion  and  in.iinli'liani'e  of  siu  h 
of  his  ehildieii  as  should  be  under  age  at  the 
lime  of  his  death,  and  until  such  sale  to  receive, 
take  mill  enjoy  the  rents  and  prolits  arising  from 
sui'li  real  estate,  dining  the  term  of  her  natural 
life,  and  to  apply  the  same  as  aliiAc  directed." 

liy  a  slibseipient  clause  he  devised  and  )ie- 
i|Ui'atlii'il,  from  and  after  the  death  of  his  wife, 
all  his  real  and  pirsunal  estate  and  the  moniy« 
HO  invested  as  aforesaid,  to  and  amongst  IiIh 
sous,  of  whom  M.  was  one,  their  heirs  and 
assigns,  share  and  share  alike. 

M.  died  inleslate,  his  mother  was  appoiulid 
adiiiinisliatrix  of  hiseslate,  and  application  was 
made  III  the  Court  of  I'roliate  by  the  asNigneesof 
certain  ot  his  juil;;iueiit  cieditors  (his  |iersonal 
est  lie  being  sworn  to  be  insnlUciciit  for  the  pay- 
ment of  his  debts),  for  lieeiisi.'  under  sections  13 
and  17  <if  the  I'mbale  Act  (llev.  Stats.,  •Jnd 
series,  e.  13(1),  to  sell  his  interest  in  the  real 
estate  of  the  testator. 

//'A/,  1st,  /"(•  ^■oung,  C.  ,1.,  Dodd  and  Des- 
liarres,  .1.1,,  ( Wilkins,  .1.,  i/,'sM,'iih'/i'j),  thai  the 
wife  of  the  Icsiator  took  an  estate  for  life  only, 
with  ,'i  eojitingenl   remainder  in  fee  to  his  sons. 

I'l  r  Wilkiiis,  .1.— 'I'hat  the  wife  took  an  estate 
ill  fee.  y 

•Jnd.  /'(*•  N'liung,  (',  .!,,  and  Dodd,  .1..  I  li.it 
the  granting  of  a  license  for  the  sale  of  real 
estate  under  Hevised  Statutes  ("Jml  series), 
chap.  130,  sees.  I.'iaud  17,  is  discretionary  with 
the  Court  of  Probate,  and  that  that  diseretion 
was  rightly  exercised  in  the  ))i't;sent  instance  by 
the  refusal  of  such  license. 

/•/('  DcslSiirres  and  Wilkiiis,  .J.J.,  that  the 
Court  of  Probate  had  no  power  whatever  to 
grant  such  license. 

Ill  re  Exiati  of  Mi  chad  O'SuHinin, 

1  Old.,  .-)(!». 

n.    Constnictlon   of- .Hcanins  of    the 

words  "Protestant  Orthodox  Minister" —M., 
by  will  made  in    ISl!),  devi.sed  certain  lands  in 
trust  "for  the  benelit  of  a  Protestant  Orthodox 
Minister,  duly  authorized,  as  also  for  the  build- 
ing thereon  of  a  house  for  the  public  worslii)!  of 
Almighty  ( iod,  a  parsonage  house,  a  sclioolhouse, 
iuid  burying  ground  for  the  use  of  the  inhalii- 
tants  of  the   western   part   of   the  township  of 
Cornwallis,  whenever  there  may  be  a  suilieient 
number  united  in  the  jiroinotion  of  the  public 
worship  of  (iod  in  that  i[Uaiter.     There  was  not 
I  in  l^^W),  nor  up  to  the  time  of  M.'s  death,  any 
Presbyterian   Church  or  Protestant  Church   of 
1  any  kind  in  West  Cornwallis,  but  the  members 
j  of  the  Presbyterian  Church  residing  there  coin- 
i  muned  with   the  Presbyterian  Church  in  I'^ast 
I  Cornwallis,  and  P.,  the  minister  of  the  latter 
'  Church,  occasionally  officiated   in  West  Corn- 


1025 


WILL 


i(>2n 


W.illi.H,  M.  (linl  ill  |S-'t.  and  t'idiil  llir  yciir 
|H(I0  1(1  tliu  tilili'  of  liix  ili'iitli  was  uii  I'llilcf  111 
tlui  CliiiiL'li  iif  I'',,  who  \\HH  II  Mitii.sicr  of  the 
Chui'fli  of  Scotliiiicl.  'I'lu.i  |iliiiiitill',  who  was  a 
inillisti'i'  of  the  III  fdlliicil  I'risliytrriaii  (  hiiroh,  j 
aiiil  tlic  liisl  I'lTsl.yli'iiaii  miiii.slcr  that  was  svl-  I 
tliil  ami  hail  a  coiij^fcgatioii  in  WcmI  ('iiiMNvallix, 
liailiiril  till'  hciiclil  of  the  ilcvisr.  'I'lii' tl  llstci'S  of 
M.  hail  ih'clai'i'il  till'  la  III  I  111  111'  liclil  fur  tliti  use  of 
the  Ftfu  Chiil'i'h  of  Si'otlaiiil,  imw  lia\  iiij^  ii  rt'H 
lU'iit  iiiiiiistt'i'  ill  West  ( 'oi'iiwiillis,  ami  I'laitiiiiij,' 
the  land  as  i'i;{litfully  licloii^jiii^  to  tlicni.  It  iip- 
pcaii'd  that,  aocordiin,'  to  the  |iiiiui|ili's  of  tliu 
Jicfni'iiU'd  I'l'i'sliyti'iiaii  Cliiiii'li,  a  iiii'iiilici'  of 
that  ('liiiii.'h  I'oidil  not  (oiisisiciitly  hold  a  I'ivil 
ollii'c  iiinlci'  |;ov('i  nnii'iit,  or  lie  a  ma;,'istratt', 
No  siiuh  |)iiiii'i]ih's  wi'i'o  lii'ld  I'ithi'i'  liy  Ihf  Ms- 
tahlished  Chiiri'li  of  Sroiland  or  tlii'  Free 
Chiiivh  of  Scotland,  and  M.  had  liccn  for  many 
years  prt'vioiis  to,  and  at  thi'  liiiit!  of  his  decease, 
a  magistrate  and  a  iiiaior  in  the  militia.  It  fur- 
ther appuared  that  |ilainliir  would  not  eomnuinu 
with  the  nioinhers  of  the  Church  of  Scotland. 

//• 'i/,  tliat  in  order  to  ascertain  tlit!  inteiitioii 
of  M.,  the  Court  « as  lioiind  to  consider  all  the 
circumstances  surrounilin;i!  him  at  the  time  the 
will  was  inaile,  and  that  in  view  of  thesis  cir- 
cumstances, and  of  othei'  clauses  in  the  will,  the 
plaintitr  was  not  enlillcd  t'l  the  lieiiehl  of  the 
devise. 

Siiiiiiih  rri/li    V.   Murldii  <  I  iti.,  1  Old.,  .Vt. 

IS.    Constriii'tioii  or  —  Moaniii;;  of  word 

"heirs"  -A  testat'ir  liei|Ueathed  u  certain  sum 
of  money  to  his  wife,  which  ho  stated  he  sup- 
jioscd  to  lie  one-third  of  the  worth  of  his  |)io- 
perty,  after  the  payine!it  of  his  ilelits  and 
necessary  expenses.  Hy  suliseijiient  clauses  he 
devix'd  a  lot  of  land  to  one  of  his  children,  and 
liei|Ucathed  specilic  sums  to  others  of  his  chil- 
dren and  to  his  hrother,  these  sums  amountinj,' 
in  the  whole,  tocether  with  the:  valiu'  of  the 
lots  of  laud,  to  the  remainiiij.;  two-thirds  of 
his  estimated  valiuj  of  his  property.  In  a 
further  clause  he  said:  "If,  after  payinj;  my 
del  its  and  necci'ssary  expenses,  there  should 
lie  a  greater  sum  than  I  have  counted  on  or 
conveyed,  my  wife,  with  each  mid  every  of 
the  heirs,  shall  participate  in  or  receive  of  said 
sum  in  the  same  ])ro]iortiiin  as  I  have  already 
allotted  to  them  ;  and  if  there  should  not  he  a 
Kulticient  sum  to  pay  the  sums  conveyed  or  al- 
hittcd  to  e.'ich  heir,  each  and  every  heir  shall 
su.staiii  a  loss  in  proportion  to  the  sum  already 
allotted  to  them."  The  estate  yieldeil  a  niueh  \ 
less  simi  than  was  estimated  liy  testator. 

Ill  hi,  that  the  widow  was  not  included  in  the  . 
word  "  heirs,"  and  that,  therefore,  her  legacy  i 
should   not  aliate  ;    that  the  testator's  brother  I 


was  so   iu'luded  ;  ami,  that   afli-r   the  payment 

in   full  of   theMpeeltie   le^ai'y  to   the   widow,  all 

the  other  li'jracieM  shonld  aliate  proport innately. 

Ill  n  E^luli  o/  H'uuilii-iiitli,  I  Old,,  Ull. 


10.    CoiiMt ruction  or   TciiiiiiIm  In  common 

or  joint  tenants  Costs  ■reslalor  liy  his  last 
will  directed  that,  until  the  expiration  of  four 
years  from  his  deeeane,  his  exei'iitors  shoiihl 
every  year  place  to  the  credit  of  each  of  his 
children  .><lliiM»,  and  if  any  of  his  childieli  slionld 
have  died,  hiiviii;,'  issue,  then  a  like  sum  "to 
and  uinom,'  "  the  issue  of  the  child  so  dyiiij,'.  He 
then  [irovided  sulistantially  as  follows  ; —As  re- 
;,'ards  the  division,  appropriation  and  ultimate 
ilisposition  of  my  estate,  it  is  my  will  that,  suli- 
ject  to  lej,'acies,  expenses,  etc.,  all  the  rest, 
residue  and  ri'inainder  of  my  estate,  and  the 
interest,  increase  and  uecnniulation  thereof  "  ho 
distriliuted,  settled,  paid,  and  disposed  of  toand 
anionj.'  my  children  who  may  he  alive  at  the 
time  of  the  iliv  isidii  and  appropriation  into  shares 
of  my  estate  heicinafler  directed,  and  the  issue 
then  liviiij;  of  such  of  my  children  as  may  ho 
then  dead  "  in  manner  followinj.,',  that  is,  that  on 
the  expiration  of  four  years  from  my  death,  the 
executors,  after  ])roviiling  for  legacies,  expenses, 
etc.,  "shall  ili\iilc  all  my  remaining  estate  into 
as  many  just  and  ci|ual  shares  as  the  numlier  of 
my  then  sur\iviii^  children  and  of  my  children 
who  shall  hefnre  them  have  died  having  lawful 
Issue  them  then  surviving,  shall  atnoiinl  to  and 
shall  apportion  and  set  oil' one  such  share  to  each 
of  my  said  then  surviving  children,  and  one 
such  share  to  the  lawful  issue  to  each  of  my 
then  deceased  children  whose  lawful  issMe  shall 
he  then  surviv  iug,  all  the  issue  of  cich  deceased 
child  standing  in  the  ph.ce  of  such  deceased 
child."  And  a  separate  account  shall  lie  ke)it 
of  each  share  apportioneil  to  such  (.hild  or  chil- 
dren, or  wherein  such  issue  shall  lie  interested, 
"it  lieing  my  intention  that,  after  such  division 
shall  take  place,  the  inainteiuince, education  and 
su[)p(irt  of  each  of  my  children,  while  under  the 
age  of  twenty-one  years,  shall  lie  drawn  from  the 
sejiarcUe  iucouu'  of  such  child,  and  the  main- 
tenance ami  education  of  the  children  of  any 
of  my  children  who  may  have  liefore  then 
died,  leaving  issue,  shall  lie  drawn  from  the 
share  or  shares  set  a])art  for  the  issue  of  such  de- 
ceased child  or  children  ;  and  that  my  children, 
and  such  issue  of  deceased  children  heing  of  age, 
that  is  to  say,  of  the  age  of  twenty-one  years,  or 
when  respectively  they  shall  attain  the  age  of 
twenty-one  years,  shall  he  severally  entitled  to 
receive  for  their  own  use  the  whole  of  the  inter- 
ests and  profits  of  the  share  and  proportion  of 
my  estate  to  which  they  may   be  respectively 


an27 


WILL 


1028 


Fiititli'il."      Ami  us  t't^H|itK-tM  lliu  hIiiu'cx  of  my 

tliiii^litcrN,    I    ilirt'ot    tliiit    tlio  hIiiu'i'    of    vmU 

ilitii^'litcr  lio  iiivf.Mti'cl,  iiiicl  till'  iiiti'i'i'Nt  |iiiiil  lo 

Iii'r  HI)  loii^  iiM  slu!  NJiall  livo,  "  lUll  tliiit,  on  llic 

Uuath   of  my  (luiit^litcrN,  tlio  iihurt',  uliiiiii,  or 

ilitt'i'CHt    of  Hlli'll   of   tllt'lii    IIM    HJiall    liavi-   lici'ii 

iiiairiiMl  and  Nliall  Icavti  rhililicii  lu'i'  surviv  iii^, 

ttiiall  lie  a|i)Mirtiiim'il  ami  ilisliilmteil  aM  folloUH, 

lianii'ly  :  ten  tlioiiwiml  ilollaix,  part  of  tlii'i^liarc 

of  Hiirli  ilaii^'litcr  ill  Hiu'li  iiiaiiiK'r  ax  hIu^  NJiall,  liy 

any  iiisiruini'iit  in  \vi  itiii);  in  her  liami  Hiilii^i'iilK'il 

in  till!  pit'Hi'iii'c  of  one  oi'  nioi'o  witni'swi's,  ilirci't 

ami  Mp|ioint,  ami  tlio  liulanco  of  mucIi  Himru  nliall 

lie  |iaic|,    apportioiu'il   ami  iliHlriliiitcil    to  ami 

among  tlii;  cliililrcn  aliil  giamU'liililri'ii   in  niuIi 

proportions  as  hIiu  shall,  liy  any  instriiiiu'iit  in 

writing;  iimk'r  licr  liami,  siiJisi'riluMl  in  tin-  pri's- 

t'lii'i'of  ojuMii  niort!  wilnciiscs,  ilirci'i  ami  iippoint ; 

and  in  ilcfaiilt  of  any  hiu'Ii  appoinlimiil ,  to  ainl 

among  lu'r  cliiiiln'n  ami  graiulciiiiilren  in  cijuul 

Hliart's,  (III!  saiil  gramlcliililri'ii  stamling  in  tliu 

place  and  lu'ingt'utitli'il  to  tlit;  slaruor  Nliarcs  of 

tlii'ir  decfasi'd  paients  or  pari'iil  rL'spcutivcly," 

One  (if  tiiu  daughters  having  died  within  two 

years   after  the  death  of  the  testator  without 

making  any   will  or   exercising  her   power    of 

ap))ointinent,  and  having  left   three  sons  under 

age  her  surviving,  one  of  whom  died  under  age 

seven  yeais  after  testator's  death. 

Hi  III,  Weatherlie,  J.,  linxi  iilliiii,  that  tin:  sons 

took  as  joint  tenants  and  not  as  tenants  in  eom- 

inon,  and  that  the  interest  of  the  deceased  son  of  I 

testator's  danghter  went  lo  his  surviving  lirolher. 

Fhher  v.  Amlrrsoitif  a/.,  1  R.  ifc  (i.,  177. 

On  appml  to  the.  Suprime  Court  o/Canatlu, 
Hi/il,  reversing  the  juilginent  of  the  Sujirenie 
Cou.'t  of  Nova  Scotia,  that  the  intention  of  the 
testa "lor  was  that  his  estate  should  lie  divided, 
and  .hat  the  children  of  testator's  daugliter 
took  as  tenants  in  conimoii,  and  conseiiueiitly  on 
the  death  of  the  oldest  son,  the  whole  right, 
title  and  interest  in  his  sliare,  vested  in  the 
lilaintit)'. 

Fishir  V.  Aiiihrxoii,  4  S.  V.  R.,  4(MJ. 

20.  Costs  In  probate  proceedings— 

*Vc  PROBATE  COURT. 

21.  Cr  pres-A  testator  bequeathed  £2,500 

to  lie  invested  in  stocks,  Ike,  the  interest  on 
i.'100O  to  be  paid  to  certain  clergymen  to  provide 
fuel  for  the  poor  of  tlieir  Hocks  during  the 
winter  ;  the  interest  on  il7\()0  to  be  paid  to  the 
National  School,  and  a  like  sum  to  the  Acadian 
School  on  condition  of  their  each  teaching  at 
least  12  (twelve)  poor  children  ;  and  the  interest 
on  £500  to  be  paid  to  the  Institution  for  the 


Deaf  ami  |)iiinlilo  assist  in  educating  the  poor 
who  miglit.  be  thiiit  alltii'ted.  The  Acadian  and 
Vatiniial  Schools  were  afterwards  slipirNedeil  by 
the  Klee  Schools  estalilished  under  the  Act  and 
HUpporled  by  taxation.  The  niaster  to  whom  il 
was  referrecl  to  report  a  scheme  to  carry  out 
testator's  intention  reported  that  the  muiii  be- 
iiueallied  to  the  schools  so  superseded  shouM  be 
paid  to  the  School  < 'omiiilssioiiers  towards  the 
ert^ction  of  a  High  School  in  Halifax,  uiuler  the 
Act  of  l!S77,  cap.  ;«». 

//'/'/,  that  us  thr  /iiiiir  \\■^■]■t>  the  objects  of 
testator's  bounty,  his  intentions  would  not  bo 
carried  out  by  the  Hcheine  proposed,  which  Wduld 
simply  relieve  the  citizens  generally  of  taxation, 
but  tliat  the  )ici|Uest  in  (|liestion  should  be  divi- 
ded betwecr.  the  Ins'ilutjon  for  tiie  |)eat  and 
Dumb,  and  the  Asylum  for  the  Klind  (an 
analogous  inslitutiiin,  but  one  not  in  operation 
when  testator  made  his  will),  to  assist  in  edu- 
cating the  poor  inmates  of  those  institutions. 
The  Aliiini'  ij  til  mrnl  v.  liullock  tt  (tl., 

R.  K.  1).,  'J49. 

22.  (')  pres    Doctrine  of   Matthew  Walsh, 

liy  his  will,  directed  that  his  real  estate,  after 
the  death  of  his  widow,  siiouhl  bo  sold,  and  the 
proiH'cds  placed  at  interest,  to  remain  and  be  a 
per|ictual  fund,  and  that  when  the  principal 
and  interest,  tiigetlier  with  other  donations 
wliich  might  lia)ipeii,  should  amount  to  i;i,(MM», 
the  annual  interest  of  said  XI, INM)  should  be 
applii'd  "for  tiie  ])ur]iose  of  aiding  the  inhabi- 
tants of  till! Township  of  (iiiysboio',  to  maintain 
a  free  (Grammar  and  Knglish  School  in  said 
Township,  or  estalilish  the  same  into  an  Acad- 
emy, at  tiie  dis(.'retion  of  his  trustees,  for  the 
benefit  of  said  Tow  nshi]i  "  The  testator  died  in 
iM'i'i,  his  widow  surviving  him,  after  whoso 
death  the  property  was  sold  by  tho  trustees, 
and  an  information  was  tiled  at  the  instance  of 
the  trustees  of  .School  .Section  No.  I  (which  em- 
braced the  whole  'I'own  of  (iuysboro',  but  con- 
stituted only  one  .if  nineteen  school  sections 
included  in  the  Township;,  to  obtain  a  decree 
recjuiring  the  defendants  to  pay  the  jiroeeeds  of 
the  real  estate  to  the  relators,  to  aid  in  the  sup- 
port of  the  County  Academy  and  free  (Grammar 
and  English  .School  est-alilished  in  tho  Town  of 
(iuysboro'  under  the  free  school  law.  Tho  Court 
directed  that  the  fund  should  be  held  till  it 
accumulated  to  the  amount  specified,  and  that 
the  interest  arising  from  it  should  then  bo  ap- 
plied to  the  suj)port  of  the  County  Academy, 
assuming  that  it  should  continue,  as  it  then  was, 
free  to  all  the  inhabitants  of  the  Township. 

(iiieeii  V.  Cutler  et  al.,  R.  E.  D.,  159. 

See,  aho,  SCHOOL  LAW,  3. 


J  029 


WILL 


1630 


'iS.    DrvlMe  of  lands    Fee  nlmplc  pn»iies  If 

charge  iiiip(iHt'il  upon  the  tluviMeti     A  muir  ilo 

VJHl)  of    IiUIiIn,   |irt'viiMlH   t(l  till!    t'llllt'tlllUIlt  of    HI'O, 

'2H,  0.  HI,  4th  K.  S.,  wax  iiiMiitlioiuiil  to  piviiH  a 
ft^o  Nhiiplc,  Itiit  if  ilic  irMtiitiir  ill  milking  tlit'  ilu- 
viHt!  lU  thi!  Haiiiii  time  impnscd  ii  cIiiii'mi!  upon 
the  (UiviNi'u,  tht'ii  till'  fi'i'  \v<iiilil  paNt'. 

•I.  ('.,  )iy  his  will,  iliicctoil  that  tliu  lot  of 
hiiiil  upon  which  iiu  ruxiiUMJ  fhoiihl  lui  i!i|ually 
(liviihril  liftwui'ii  liiH  two  HoiiH,  u»  lliey  niiijht 
think  light  or  I'vpcilicnt. 

/{fill,  tiiat  lilt!  (htvi.so  of  itself  <li'l  not  givo 
them  the  fee  simple. 

lint  the  ti'Miator  lUrecteil  in  another  elaiiHu 
of  till!  will  thill  hix  Hon  Ateiiihalil  hIioiiIcI  axHittt 
liiM  other  Hon,  KiMleruk,  in  Imililiiu'  i  hoimv,  thu 
iiHHiHtatic'i!  heiiig  Hpueitled  as  a  iiiiliility  for  oiiu- 
half  the  expense, 

IIi/i/,  that  the  impoHition  .ii  '  iiiis  charge, 
whii'li  was  a  personal  one  upon  tiiu  ilcviscu, 
Arehilialcl,  and  not  upon  the  lands,  enlarged  his 
estate  to  a  fee  simpli'. 

Chi-'liohn   V.  M,tr/}„iiiii//,  |   \.  S.   I).,  l;{7. 

24.    Forged  will    I'roor  In  sitlemn  form  - 

Evidence  -  l)eeree  nui  aside  -  I'rohate  was 
granted  of  the  will  of  (i,  to  his  widow,  who 
was  a])poiiited  sole  cxeeiitrix  and  legatee,  and 
who  pi'oeeeded  to  collect  and  take  possession  of 
the  estate.  More  than  a  year  afteiwards,  one 
Meli.  proilu'X'd  another  paper,  which  he  alleged 
to  lie  the  last  will  of  the  deceased,  ami  a  cita- 
tion was  issued  to  show  cause  why  proliate 
thereof  should  not  he  granted. 

Tlie  ixccutois  were  cited  hy  the  widow  to 
prove  the  .  lleged  will  in  sideiim  form,  and  after 
hearing  evidence  the  thidge  of  I'rohate  made  a 
decree  setting  .  side  the  first  will  and  declaring 
the  will  produced  hy  McL.  to  he  genuine.  The 
ovidence  showed  eoi.clusively  that  the  will  pro- 
duced hy  McL.  was  a  forgery. 

//(■/(/,  on  apjwal,  that  the  decree  of  the  Judge 
of  I'rohate  should  he  set  aside,  and  the  appeal 
sustained,  with  costs. 

/.'<;  I'Jifale  Gainmelt,  7  R.  &  G.,  205. 

2o.    Letters  of  Probiite  —  Executor  not 

liable  for  moneys  paid,  though  will  afterwards 
set  aside— Notice  of  intention  to  attack  will — 
Defendant  was  appointed  executor  under  a  will 
which,  after  he  had  ohtaincd  probate,  and  had 
collected  debts,  paid  legacies,  iVc,  was  set  aside 
for  want  of  due  execution. 

//eld,  that  the  granting  of  probate  was  ii  suf- 
ficient defence  to  an  action  brought  l;y  the  ad- 
ministrator to  recover  the  moneys  paid. 

Alw,  that  plaintiffs'  case  was  not  strength- 
ened by  the  fact  that  defendant  before  paying 


the  legaeii'H  had  notice  that  the  will  would  he 
attaekcil  upon  another  ground  than  thi^t  upon 
which  it  was  set  aside. 

liamlall  <i  «/.  v.  7>/a;),  «  U.  A  (!.,  l()fl  ; 
(K*.  F..  r.,  lU. 


20.    Mental  capnrlt)'    Tndue  Influence- 

I  The  evidence  Upon  which  it  was  sought  to  net 
aside  a  will  showeil  only  marked  eccentrieitieii 

j  of  liehaviour,  and  the  will,  although  niaile  in 
favor  of  the  Holieitor  of  the  testatrix,  was  xliown 
not  to  have  iieen  piepart'd  by  him  and  to  have 
been  inacit!  without  any  jiressuie  from  him,  and 
as  till'  free  act  of  the  testatrix. 

l[ild,  that  the  ilecision  of  the  Judge  of  I'ro- 
hate Hustaiiiing  the  will  must  )>e  alHrined. 

/» >v  KHhih'  of  wiiki',  .'•  \{.  A  (J.,  :ax 


2t.    MLsrcndlne  will  to  testutor- Setting 

aside — Testator  w.is  a  man  of  religious  habits, 
and  a  inemlie!  of  the  Methodist  (.'hurch.  A 
fortnight  before  his  death  he  had  matured  the 

'  .sketch  of  a  will,  sul)slantially  similar  to  the  one 
executed,  MJiich  left  considerable  pioj)erty  ti) 
the  Churcli.  On  the  afternoon  of  the  Monday 
liefore  his  death  he  sent  for  Henshaw,  one  of  tlie 
executors,  who  came  in  the  evening  and  took  in- 

1  structions  from  the  testator  for  di awing  the  will, 
which  was  prepared  next  morning.     When  these 

'  instructions  were  taken  there  were  four  persons 
pi esent,  besides  the  testator  and  Henshaw,  three 
of  wlioni  were  interested  in  sustaining  the  will, 

,  but  neither  of  those  was  produceil  as  a  witness, 
nor  were  the  instructions  produced,   although 

I  tlie  Court  had  adjourned  for  the  purpose  of  en- 

\  abling  them  to  be  obtained  ;  and  T'oop,  who 
was  present  and  adversely  interested,  had  been 
sent  out  of  the  room,  without  it  being  shown 
that  it  was  by  testator's  rcjuest.  The  witnesses 
present   at  the  execution,  which  took  place  on 

!  the  Wednesday  before  testator's  death,  iliffered 
greatly  in  their  statements  as  to  wliat  then  took 
place,  but  it  was  admitted  that  one  clause  of  the 
will  had  beea  intentionally  read  to  testator  dif- 
ferently from  the  way  in  which  it  appeared  in 
the  will,  and  that  testator  made  no  remark. 
llis  name  was  added  to  tlie  will  by  one  of  the 
executfu's  w  ithoiit  his  consent  having  been  asked 

;  or  his  authority  given,  and  he  died  the  next  day. 

I      Hdd,  that  the  decision  of  the  Judge  of  Pro- 
bate setting  aside  the  will  must  be  sustained 
costs  to  be  paiil  out  of  the  estate. 

j  In  re  EMaU  of  Pine,  3  R.  i%  C,  307. 

28.    Practice  in  Probate  Court- 

Se>'.  PROBATE  COUBT. 


vm  WILL.  i(;:{2 

20.       Probate      -Appeal     Trom    JlKlKineilt  fully  mihI  wIlli  IkinIIIc  iiiliul   Ixin  an  iiistriliin'iil 

lulinittiiit,'   to    I'roliati)       UikIiic    inilinaici;  \>y  in  prciiiiiin^;  hi.-i  idiiliMciiniil , 
H|iiritil;il  iidviHi.T     ,hu\\^m(n\i  lit-low  HiiHtaiiiiMl        //(A/,  mi   ipiMjil  fioiii  tin'  I'lolmlc  ('rniil,  tli.il, 

—  'I'cHtiildi' WiiH  ii  ijian  (if  MiiMnrly  liiiliitH  «  iio  liail  the    iiruliali'    (if     llii!     will    liad     liccii     |ii(i|iirly 

ffir  liiaiiy  ycaiM  lived  iildiii',  ali'l  had  iiciMiiiiiliiiliid  icvokcd,  and  llial  I  lie  on  us  reeled  (iii  iIiomi!  mi])- 

ciiiihidiiahlc   |)i(i|Mily.       'Two    ycaiH    Iji-lnic  liis  |)iiit  in;.' t  lie  w  ill  Id  hliow  I  lial  tlii' Icstiildr  wlicn 

death  hi!  WiiH   viMited  liy  a  nieic,  his  next,  of  kin  he   nia(l(^  it    had   a  ('a|iaeily   lo  i'dnj|ii'i'lieiiil   tin: 

und   Moai'OKL  living  iclali\c   in  llie  same  de;,'ree,  iialnre  df  Ills   wife's  ciaiin,   and   to  deiiliei'aleiy 

who  was  infiirnieil  hy  him  I  lial ,  (in  liis  deal  li,  ail  fdnii  an  inl'  lii;.'enl  piii  jidse  (if  exrliiding  liei'. 
Ins  |(i(i|(eily   wdiild  gd  tii   her  and   her  nidtJKM'.  In  n    Afii.nri //  h's/ti/i ,  I   I!,  ,V,  ( '., 'J'_'!l. 

licl'iiri!    r'etiirniii;^    lioliK!    the    niece    dhtained    a 
|ii'iiiiii.se    frdni    ihi:    priest,  who  was   her  iinile'.s 

Hpiiiliial  adviser,  that  in  tlic<.venl  df  her  lUKle'.i        •{>•      l'r«<»f  Of  H  III   i!.y  <TP(inc«l  fOPi'     <'«»• 

illness  he  wonld   write  K.  Iier  and  infdiin  her  df  "tnieiive  piuHeliee  of  testator     A  will   is  siilli- 

llie  fact,  Sd  that  sh. -1111-111  letiirii.     Tlie  leslaldr,  '•'•'""ly  pidvd    l.y  the  Jilddliel  idli    of  a   cerlitied 

hasiiii,'   lieeii   .seized    wilh  an    illne.ss   wliicli    was  '"I'.V    win  re     lli<^    iioliee     rei|iiire(|    l,y     llevihud 

likely  Id  pidve  fatal,  was  advised  hy  the  Jiriehl  •^Lil  iiles,  chap,   l;;,"),  sec.  :i(J,  has  lieeii  ^ivcn. 
Id  make  a  will  as  a  means  of  l.eing  "  helter  pre  "  '""  ■i''*"  siiHieieiiliy  allesled  where!  the  testa- 

pared    Id   attend    Id    his    spiritual   allails."      II.  tdr  could  see  I  lie  «  il  iwsses  Hi;.'ll,  had  in,' (dldseli  to 

was  iil.sd  advised  Ihat  he  Wdllld  lie  pirlfeelly  li^rlil  '1"^".  I  li"ll^'ll  IIkic  was  lid  piddf  ihat  he  acllially 

in    dispdsing   df    his    pruperty    in    any    uay    he  'li'l  see  I  liem  sIl'Ii,  and  they  were  in  an  adjoining 

wished,  iKil.  ediilraiy  to  the  riioral  law.      A   will  <"'""  •'•    "'i''    'i'"'-      ''"''•''    I'"'  <''ii«l<^li''o   of   the 

was  drawn   iipliy  a  Sdlicitor,  who   was  sent    fur  testator's  signaliiic  l..  the  will,  at  the  time  of 

for  the  iHirpiise,  leaving  thc!  w  lidli!  (if  lestaldi's  'I"'  ackiKiwledgenient   hy   him   Id  the  witnesses 

property  for  idligi.iiis  and  (!liarit,alil<!  purposes,  ''I'^t  it  i«  his  will,  may  he  inferred  finm  cireiim- 

with  the  J!Xi!eptidn  df  two  small  heipiesls,  inelud-  Hliinees. 

i'^--i,  .      .1  M'l  .  < ''iri-iiinii   v.  C'(r/''i/'(//, 'J  Old.,  S. 

ing  one  ot  .'s.iO  to  tint  niece,       I  In:  niece  was  not  •  .;      .  > 

sent  fdr  in  aecdrdaiice  with  the  jiroiiii.-e  made  to 

her.and  .she  had  no  iiifoiiiiatidii  df  thee.xistenec        jj^.      |'|MtOf    Of      TWO    Of    lllO    SHl»S<TlblllK 

of  a  will  iiiilil  after  her  uncle's  dcalli.  witnesses  to  a  will  m  ai  ly   thirl>    years  did,   and 

■riiere  lieing  evidence   as  tii  t  h.-   .liiit  cxcciit  ion  supposed  t,i  li.a.vc  lieeii  h'sl ,  , hi   not  remeinher 

df  the  will  and  the  eapaitily  df  the  testator,  and  ,|,,^,  ,|„.y    i,,^,|   \viliies.scd   its  e.x.-eiilioii,  liiiL  oiii! 

lid  evi(lelie.;<ith(!r   thanlhalas  stated  of   iiiidiK!  ,,f  I  hem  said  that   Ik!   Iidieved    li.t  signed  It,   and 

iiilhicncc,  pressiiiedr  indileemelit,  Iml  h  adiinl  ted  th.tt   it  ini-ht  have  liceii  sign. mI  hy 

//(/(/,    Ihat    th.!  appeal  ffdiii  llied.Misidli  (if  the  (i,,.,,,    ,^,|,i    ,  |„.   „(|„.,.    suhscril.illg    witll'^ss    with- 

('(.'in    df  I'ldlLite  adiiiltin-  the  will  !d    I'ldliatc  ,„„    ,|,^.j,.    ,.,,c„|lcctiiig    it.      'I'h..    will    its.^lf   was 

must  I,,,  disiniss.-d  with  eosls.  '  fiiimd    n.-ar    the  chise  .if   Ih.'    trial,    after   t.li,-^,! 

Weatherlic.  J.,  (//~x. /(//»;/.  wit  iies.-..'S  had    lieeii  examined,   an, I  it  )iiiiporl(Ml 

/,'.   /•;</'("  './  /)>,o/,i/,  i;  H.  (V  (;..  -lo:  ;  ,„  |„,  ^\^n,,,\  |,y  il.cse  wilii.'S>es  and  anolher. 

'' '  •   '■■    '■'   ''•*'-•         .\ii(illier  witness  at    tlie  trial,   liuL  iKit  a  siih- 

scriliing  witness  lo  lli.'  will,   swor.!  that,  it  was 

.,,,        1.       1      ^  <■         III  ■>  .1  «.  .!\.'Cilti-(l   hy    the    tcslalur,    she    liclicv.-d,    in    the 

MK    l'roha(<;   «l    will      Kevoralion   ot  ,    ,      ,  ,       , 

,  II'  ,•  i      i.    X  >  II.  l>r.!seni;e  of  ilie  tlirite  siiiisci  il.iiig  w  il  iiesses,  aii.l 

Jnsany  delii.siou  ol  t.istator- A  ter-tal.ir  lia.l  at  '  " 

,.,..,,,  that  she  hail  seen  iIk'Hi  sign  their  names  to  It  as 
va.ioiis   limes  pre\  lulls  to  making   his  will   been  " 

in-, me,  and  lia.l  licim  plaei!.!  iiii.ler  restraint  as  a 

,  .      .,  r      1  ■   I  .  //'/'/,   (til.!  Court,  having  all  thi!  pow(!rs  of  a 

liinali.;,  the  propriety  ot   which   was  not  .piiis-  ,.  , 

I       ,,.        .r         11.1  11  III  iuiy   under  special   ver.li.;t),    that   the   will   was 

tldiied.      Ills  wile,  who  liy  the  will  was  excluded  '     ■  ' 

,,  .■   ■      .•  1-    ■  .II-  siiliicii!iitly  proved, 

troiii  p.irticipatioii,  was  living  separate  trom  linn  '    '  ,.  ,  ,         .,    . 

..,,.,  ,  1,11  1     ■  Mr hiiimhl  il  (il.   v.  Mi-Kiiiii(iH  < I  III.,  1  OhL.ri'JT. 

when  tlie  will  w,is  made,  ami  had  l.e.c'ii  .so  li\iiig 

for  many  years.      It  did  not  clearly  appear  that 

she  had  he.-ii  an  agent   in  pidciiiing  his  (diifi ;{;{.     TroOl' Ol'nill  III  Sdlomil  fomi   -  tOStS - 

m(!iil,  liiit  tesiatdr  atlriliiile.l  it  I.I  li''raii.i  all.-ge.l  ITp.in  |ii.idfdf  t(!slatdr's  will  in  sol.iinii  fdiiii  the 

it  iUiidiig  dtlier  groiiii'ls  fur  his  ave'rsidii  tn  her.  .iiidge  df  I'loliate  ihiereed  that  it  lia.l  lieeii  .Inly 

Apart  from  any  .piestiin  as  toiui  in.saiie.leliisioii  executed,  and  lu;  made  the  costs  payalde  out  of 

regarding  tiie  wife,  tiie  testator  had  stiflicient  the  estate.     On  app(!iil,  the  Court  A./'/,  that  the 

eapaeily  to  make  a   will,  lint  as  his  Montiinenls  will  had  lieeii  siiown  to  l^avu  heeii  duly  e.Kecuted, 

towards   his   wif.!  had  lic.'ii   col.ir(!.l    in   part,  at  aii.i   that  the  .lue  executi.jii  lia.l  heeli  provo.l  of 

loast,  hy  a  deluding  helief,  that  she  had  wrong-  i  a  codicil  which  (Hjurated  hh  a  republication  of 


l(i:n 


WILL. 


IG.Sl. 


till'  will.      'I'lic  uppcal   wits  llnTifiJii'  iJi.siiiiHMCil,     tlir    iiiiikiiij.'  of  the   will   ill  ilispiiti  ,   iiiiil    lifter- 
lull    willioiil,  cdmIm,  witicls,      III     tin;     liiMir     of     his    lIlMth,      tli.Stjfjfll 

\V  I'.itlliillii:,  .1.,  i/io/;///;/!/ ax  to  till' i|iic,stiiili  of  stioiij^lj'  to  IiIm  liHiiliil  .soiiinliifM.s  hihI  vigor. 
I'lisi-i,  i;oiiMiiii'ri:il  tliiit  till!  ii|)|iciil  .slioiilil  lio  ilis-  'ri!Ht.iilor  liiiil  hiiii  on  ii'iiiis  of  gieiit,  iiitiiiiiiry 
liii-.<iMl  with  iMistM.  with    Kiiiilliarli    uliili'   iil,    l,iiiiiiiliiii>',  wlnri!  Iio 

/;/  ;v:  h\/(i,/i-  o/  J!nilt( ,  .'(   jl,  ,t  {'.,  't'ti).     Ii\iil  from  IST'J  to  tin;  liiiie  of  iiis  ilial.li,  i  pi'Mil- 

iii;,'  till' ^ri'.ili'r  purl  of   liisliiin'  iil    KinilljarirM, 
aftir  wliirli  Kaiilliarli  mill    liis  family  liviil  «  il  li 

•M.   Ki-sl(lii«>    La|>s(>d  lMM|iM-sts     l-crscmal   ,..,„^„„.     ,<,,„„„,„,,  ,,.,,,  ,,i.  or.iisioiial  l-ank-r 

prnpiTly    ,l..v,M.„l    to    ..M.Milor.s    lor    a   purpoM-    ,„„|  ,„|i,i„„.^   ,,,,„ ,,  ,.vi,l,.,ir,.  was  t..|i,l.r..il 

Mliii'li  fails  must  In- ilistiilnitfil  liy  tlie  itxcciiiors    .       . i       .    i  i-    i  .1 

•'  to  show  thai   lie  liaii  iiiimoilfialiUy    siitipl|i-il  I  hi! 

aiMoiiL' till!  iii!Vl  oi  kin.  ...  .1    I-  .I'l       1     1-.     f.i  11 

"  ti'slator  witli  lioiior.      I  111!  iliatl  ot  till-  will  was 

Siir:li  (listrilmtioii  is  « illiiii  llic    jiii  isiliil  ion  of         i-      o      ,  .         ■.■        1     .  1      i-      . 

■'  III   Kaiilliaili  s  writ  iiif.',  Iiiit  was  sworn  liy  liiiii  to 

till'  I'loliato  ( 'oiirt.  ,      •    1  .    ,  ,     ,    ' 

liavc  l)i:rii  coplcil  rvaclly,  at    Irsla'ors    riMiiii'st, 

h's/ll/ro/A.    .l/'7>r,»,(/-/,  James,    IS.i.      ,■  ,.  I     i  .       ,     ,  \ 

'  '  Irom    a   will    piepareil   liy    leslalor    in    .\ii>,'ii-t, 

uilli   all  era!  ions   siij.'};e:,teil  liy  I  lie  leslalor,  and 

;{.!.    U«vociitl«iMtrf(>riiurlii  laUr     Suit    "pi'i  ^ ''"iin. 

for  iiiirtitiim     Where  later  will  revoke  earlier       ''''"'  "'"  'i''^^'"-'  '"'•"  'ti  LmI^i'I  '">  the  |.'roiiii.ls 

will    -I'laiiiliir,   elaimin-   a   partition,   set    up   a  "f  >""V<  '/' //(m/'/i,  a,„i  ,ni.liie  iiitluinee, 
SlieiitlV    ileeil    of    the     in-eivst    of    .1.     I.elilaiie,  //' /'/,  HUStainill-  the  ilecisioil   of   I  lie  .1  m  1;;,!  of 

ulii.'l,  she  .claimed  as  heir  to  her  mol  her.      I)e-  I'l'-l'^H''.  'I'itl  "'<•  will  must  I.e  eonhrine.l. 
rei.ilant   proved    a    will   made    l.y    tin    iiiolher's        The  ( 'oiirt  was  eipially  divide,!  upon  I  he  ipies- 

luieeslor,  ih'visiiiK  the  land   in  ipiesti  >ii   in  siieh  ' '""   "*   '""'''•  '^''''i''^'-  ' '•  •'■•  '""I    I  >i-^l!'"  I'S  •'.. 

a  way  iLs  to  disinherit  her.      I'laiiil  i  f  set  up,  as  '•"hM'li'iiu^' that  laeli  parly  should  pay  his  own 

a   revoealioii  of   the  will,  a  later  uil',  hut  it   was  ''"^"«  '   ■'"''"'"'   ''""'  •'■^'K'S  •'•'-  'l''''    ''"'.V  should 

nol  shown  that   the  later  will  devi  cd  any   part  '"'  I"'''   '""    "^   l'"'   '■-'■^''■-       N'""!'!''!'  W'l^  luiide 

of  ih.:  laiiil  claimed  in  the  parlilion  sail,  and  it  "''  '"  '■"^'''• 
eonlaiiied  no  elaiise  of  re\()i!al  ion. 

Ililil,    thai     there   was   no    i  evoe.al  ion   shown,  i 

and  tli(!verdiet   niiisl    he   entered  for  defendant  ,,  ,         ,       ,  ,,  •,,         , 

.  ,  1  1-  ,         ,  (Id  iiiiiii  III  Id  till  Siijiri  nil  (  imrl  III  (niiiiiln, 

under  a   rule  enahliiig  the  (  ourt   to  enter  ver- 

diet  for  either  parly.  //'/'/,  dm  a  motion   to  i(Uash   the  appeal,  that 

Mc/.'at  v.  Cornilirilnl.,  .".  II.  .*^  C,  ;i7;{.    ''"  ''I'l"'^'  will  not   lie  to  l  lie  .Supreme  ( 'ourt  of 

('.iiiaihi,  in  e.ises  in  wliieh  the  ('ourt  of  orij^inal 

jiii  isdielion   is    not  a  Superior  Court,   and   that 

m.     Senile  tU'lllClllia      Evidence  «r    t'(»S(s    \u,.  c,,,,!!  .,f  Wills  and  IV  hate  for  the  County 

-   Testator  made  four  wills,  all  ill  the  year  is:.-,,    ,,f    |,||||,.|||,Mr,L,',    Xova  Seotia,   i.s  not  a  Superior 

l.y    ihe   lirst   of  whieh,    madi!   ;\|.ril   (llh,    while    Comt  uiihiii  ihe  ineaningof  the  ITtli  seetion  of 

reshling  lit   llalifa.v  at  Ihehoiis,.  of  his  eoiisiii,     "  The  Supreme  and  Kxelie(|Uer  Court  .A.-l ." 


Ill   II    lliiiiiii^h  M iiiiliiih's  ll'i/l, 

.•{  l;.  .V  C.,   IL'7 


liiiiiiii^li   V.   Kniilhiul:,  .■{  S.  C.   1;.,  701. 


CliarleH  iieaniish,  he  left  nearly  lialf  of  Ins  proj)- 
Cfty  to  .said  Meainish,  and  I  he  other  half  in  trust 
for  Mrs.  If.  \.  \.  Kaiilh.ieh,  in  whose  favor  the 

fourili  will,  heiii.n  the  one  ill  i|uesiioii,  was  made      jjj.    SlielN'y's  easc,  mle  In  -A  testator 

to  the  exeliision  of  Ijeamisii,  on  I  he  l.'illi  .No-  devised  land  to  .\1.  Iv  I'.,  ;.;i\  in;.' her  in  terms  ,ui 
vemher,  and  while  the  testator  was  lesidini.,'  at  estate  for  life,  Ihe  property  to  ^o  at  her  di!atli 
the  house  owned  and  oeeiipied  hy  him  in  l.uiieii-  to  her  ehildriMi  then  horn,  w  hom  he  desi;.'naled 
hiirg.  The  suhserihiiig  wilnessi's  to  the  will  hy  ii.ime,  and  to  siieli  other  ehililreii  as  she 
hot  li  testideil  clearly  to  the  testator's  soundness  I  might  liavi!,  iiiid  their  lawful  el.ildreii,  and  to 
and  eapaeity.  Two  re'speetahle  witnesses  he-  |  their  heirs  lawfully  hegotteii.  In  the  next  elaiise, 
nide.s  I'lcainish,  speaking  as  to  .S(!ptemher  and  hi!  dee.lared  that  it  was  his  will  that  the  property 
the  latter  end  of  Oetoher,  1S7."),  deserihed  the  should  In:  entailed  upon  the  iliieet  deseeiidaiits 
tCMtator  lis  heing  ehihlish  and  imheeile,  eoiieiir-  of  his  four  eliihlreii  and  their  oH'Hpring  forever. 
ring  in  this  o|iinioii  with  the  testator's  nurse  In  the  eodieil  to  his  w  ill  he  referreil  to  the  estate 
and  h(!r  daiight(;r,  the  evideiieu  of  the  former  of  he  had  given  hy  his  will  as  an  estati!  for  life  to 
whom  was  not  eonsideied  worthy  of  attention  his  (!hild''eii  (one  of  whom  was  M.  K.  II,),  and 
for  various  reasons.  On  the  other  hand,  a  ;  stated  that  he  had  entailed  the  pi'o[H!i'ty  on  their 
miinher  of  intelligent  witnesses,  seven  or  eight,  '  ehildren. 

iiieludiiig  testiitor'H  elergynian  and  phymeiaii,  lltlil,  that  the  words  deliniiig  the  jiersonH  to 
who    had   visited    him   down    to   the    time   of    take  on  the  expiration  of  the  life  estate  were  in- 


lO.'J.' 


WORK  AND  LABOll. 


IG.'M) 


toiiiliid  iiH  II  (lt:nii/na(io  prrsotiarum,  iiiid  iiol,  uh 
worilH  (if  liiiiilatioii  ;  lliiil  i.ht:  luii;  in  ,Sli<'ll<iy'H 
ciiHc  did  not,  liiricforc,  iijijiiy,  and  l.li<!  dm'JMCi; 
look  only  a  lift;  (iMlal.o. 

/{(iliiiitdit  it  al.  V.  //I'lidri/,  R.  I'l.  I).,  ,'(,'()>. 

its.    Sliollcy'N  am'    When;  u  testator  d(s 

viH(!d  landn  to  liin  hou  R.,  "for  and  dining;  liin 
tialiiral  lifo  liniit,  llii^n  to  dHVoivi^  to  lii.s  ildi^xt 
oinid  lawfully  Ixjgottiin  in  (i.  Iiii<^  of  Miic.ci^HHion 
for  (!V<!r," 

//'/(/,  llial  tins  iiild  in  S/iil/ii/'s  casi!  diil  not 

apply,  and   that  R.  look  only  an  cstatt;  for  life. 

MiKiiij  ii  III.  V.  Ainiaiiil,  I  Old.,  '_'47. 

:t».    Spcclllc  deviNt' or  real  vstitte    Sped- 

lie  l)(!()ii(!HtH   -Real  cHtate  not  lialil);  to  conlri- 

buto    to    tho    l)l!(|ll)!HtH      CohIh       W'iirll!    Ir'Slalol' 

dcviHiMJ  (certain  rial  cMlati:  HpiMMlirally,  and  alHo 
iiiadi;  M|)(:(;iti(:  piM'uniaiy  lK;(|ii(!Mts  to  Hi;vi!ral 
)ii!rnonH, 

JIi/il.,  (allirininn  in  ri:  h's/a/r  i>/  Mih'ii.i/,  I  Old., 
i;il),  iliat  the:  real  (sslate  mo  dovi.ied  c;oidd  not  lie 
Hold  to  (iontrilmte  towardH  the  piHuniary  iie- 
<)UeMtH,  and  that  ea(;li  party  Hhoidil  pay  his  own 
eoHl.'*,  aH  ni:ither  party  appeared  to  have  liroiiglit 
Hie  eaHe  reported  liy  Oldri^lit  to  the  notiec  of 
tlu!  (Jourt  lieldW. 

In  re  S/i:/,hm  J'h^r'.t  Wilt,  2  R.  .t  ('.,  ;)ri8. 


j     40.    TruHt  frcated  by    Liability  or  trux- 

'  tee      i'riiviHioii  in  a  will  that  di^leiidant  Hhoiihi 

I  holil  land,  A'e.,  in  triiHt  to  <:iiltivate,  ileniiHe,  jet 

and  niana^<!  the  Haini;  to  the  liimt  advantage  for 

teMtator'H    daughter,    without    inipeaehinent'    of 

waMie, 

llilil,   not  to  exonerate  I  lie   tlilHlee    from   le- 

HpoiiHiliility  for  wastiii)^  the  trunt  propiMly,  lnit 

I  Hiniply  to  empower  liini  to  do  "  Mlieh  aetH  as  he 

eould  do  if  a  tenant  who  wan  not  aeeonntalih 

for  wante." 

Uilil,  j'nrlhir,  that  the  truHtei)  under  Hueh  de- 
viHe  was  not  olilij^ed  to  work  a  mill  on  the  IriiMt 
pi'operty  ;  and  I  hat  if  the  truMtee  waH  unalile  to 
proeini;  a  Huitalile  tenant,  lie  ought  not  lo  he 
held  annweralil(!  for  the  unproduetiveneMM  of  I  he 
property. 

J /i  III,  furl  III  r,  that,  the  defendant,  in  selling 
the  gra.MH  iineut  at  aueti<in,  instead  of  making  it 
into  hay  and  Htoring  or  iliHpoHing  of  il  an  ,su<:|j, 
had  pursued  a  eiuirse  whieli  he  was,  under  the 
cireumstaneiiM,  at  lilierty  to  adopt. 

I'lriioii  1 1  III.  V.  Sniiitii.ii,  R.  K.  I).,  I!M). 


WORK  AN!)  LAUUIt 
V  '  tONTKAlT. 


APPENDIX. 


TIIK    rOLLOWJNc;    TASKS   SIIOIJIJ)    MAVK   AI'I'KARKI)   UN'DKll    THKIK 

IIKSI'KC  I'lVK  IIKADS. 


ASSKilNMKMT.  Inn  lillr  m   djc   limi',    Iml    tlml  iifliM'    oliUiJiiiii),' 

lil.lc,  mIii'  riililji'il  unci  a<l<i|il(:(l  llic  lilli^ 

or  choM!  ill  action    Action  liy  assiKnci;  Jt'/<t,  i><r  Wcailn-ilii^  .1.    'I'liat  iIh!  hIIck'^'I 

Nolici;  iiii(l(!r  St.iii.utf;     H|)(M;i!il   iiroinis);  to  iiH-  i  lim:  wiih  inMiilIiciriit  ;  (n,),    liccuimi    il,   iliil   not 

M^ni'A'.  ill  conMidttr.-iiioii  oC  forhtsirjiiKK;  !  ii.|t|ic:ar  lliiil   I  lie  nal  Ixniiicliuy  wiiH  incapaliii'  nf 

iS'ir  STATIITFiS    NOVA  NCOTIA  lioiiif^iLHcuriuintMl ;  f //^,  IxicaiiHt:  L.  hml  no  inior- 

•!Hl  at  the  thiK!  it  wuw  OMtaliliHliinl  ;  ( <■ ),  lircaiwu 

it    was   not  allij^iMl    (hat    tin;    iatilii:atioii    look 

plai.'i-  on  \\\i:  ^I'oiinil,  oi'  that  any  partiiMilai'  linu 

j  was  rni-ntioncil  ;  (il),    lii'caiisc;   l<.    Wiis  illitiMato 

I  an<l   VMLs   unaware^  of  I  hi'  ii|i(:rjli(:  naliifc  of  tin) 

ih'sri  iption  of  h(M'  iioiindary  ;    ( >  ),   l>i:i:aiiMir   tho 

■  ,,   ,  /.    •     1  ,        ,  ,    .       .     ,      I  alli^ucil    a^HMMiicnt    apnuaiiMl    to    havi;     lucn    a 

cohIh   -  Jlfhiiim;    of     pi(l{,'nn!nt     ()htain<:(l     hy  '  •  ,        ,  .  r,      > 

I   1.  ,,  ,,  ,,,',     ,,  ,,  .,    !  (;oiMpionilH(!  whciiiliv  OIK!  piiMji;  (it   lami   Wiis  ex- 

Ut.'btor  CrilluHioii      iht!(oiirt  will  not  Mi;la.sii|i-  '  ^  ' 


4 til  U.  H.,  c.  1)t,  N.  :(57. 

ATTOKNKV. 
Attorney  and  client     Sollritor'N  lien  for 


a  rclirasc!  ohlainiMl,  pitnilinj^  snit,  hy  dcfcnilant 
from  plaintif)',  nor  i-oinpitl  I  In-  ihfi'nil.ujl  lo  pay 
|)laintiH".s  attornc'y  his  costs,  where'  ihcic  has 
l>i:on  no  iMilliisinn. 

Jiihiis/oii.  V.  Afiiflii.ioii,  ilanii's,  !CJ. 


{  i:lian;^cil    for     an    (M|nivalt!nt    piitm;    on    another 
pait  of  I  III'  lol. 

M  1,1,111 1)  V.  Vrliiiiisli,  7  li,  iV  <;.,  Hit; 
7  <'.  L.  'I'.,  r.M. 

AdiriniMl  on  appeal   lo  the  Supreme  Coiiit  of 


( 'anaila. 


II  S.  C.  I'..,  7IU;  7  <.'.  I-.  'I'.,  •■(!«' 


<  AI'K  KKKTOX. 


Kond  on  appeal  from  Justice  of  llic  Peace 

-  An  attorney  one  of  the'  KuntticH  An  appeal 
lieinj,'  taken  froiii  a  Ma;,'isl  rate's  decision,  tlii! 
(lefendant  and  one  \\'.,  an  attorney  of  the  Sii- 
jireme    Coiiit,    lieeame    siiretie'S    on    the    appeal' 

honil.    On  the  ground  of  w.  i.einK  a  snre-y  the  ; .  Annexation  Of,  to  Nova  Scotia  by  tlH)  frown 

lion.l  waH    held    ir.-i'Kidar  and    the    appeal    dis-  |  '"  ^'^^"     Legality  of  ^^^^    ^^^^  SCOTIA. 

inisHed    l)y   the  Supreme  Court,      i'liiiiitilf  then  i 

resortiiil  to  his  original  jiidKnii'iit,  and  the  i^.xe- 

ciition  lieing  returned  miMalislied,  sued  ih^feml-  ('OVST\lilF 

ant  on  the  liond. 

//.-A/,  that  he  .'ouid  not  reeover,  as  i,y  the      justiiicatlon  of  cottNtaiiie  Under  an  irre. 

oourse  he  had  laken  he  ha.l  waived  all  right  or    gular  execution     Notice  of  irregularity 
claim  against  defi.'iidant  under  the  appeal  hond. 

Mr.Xiu  V.  Mor.l,<,i,sr,  :i  \.  S.  I).,  .-(I  t.  ''''"'  K^KCl'TION,  H. 

Negligence  or,  in  investiiiK  money    Searcli  INSIKIM'E    FIUF 

of  title  —  ......,-.. 

s  "^  REIilSTlUTION,  IH       ^„p,gaggc  ,.„„„„t  „„,,  „„  „„„ey  issued  In 

name  of  mortgagor  The  defendant  eonipany 
isHued  a  policy  of  fire  insiiran(;e  in  the  name  of 
T.  on  projierty  of  T.,  of  wliieli  the  plaintiir 
company  weie  mortgagees.  'I',  having  released 
IiIh  eipiity  of  redemption  to  plaintilfs  in  Hatis- 
cation — Defendant,  as  part  of  his  defence  to  an  faction  of  their  deht,  plaintill's  continued  to  pay 
action  of  trespass,  ndieil  upon  a  conv<Hitioiial  line  '  the    premium     upon    the     policy,    hut    without 

having  received  any  assignment  of  'I'.'s  interest 
in  it.      When  the  last  premium  hecame  due  it 

i(j;w 


BOUNDAItrKS. 
Conventional  line    Real  boundary    Itatill- 


alleged    to   have    heen    estahlished    with    L.,    a 
foinior   proprietor.      It  appearc'd    that    L.,   had 

l(j:»7 


10:5!) 


APPENDIX. 


1G40 


Wiis  paid  hy  pliiiiitiirs  :is  ustiiil,  mid  it  was 
agreed  tliat  tlio  eiistmnary  renewal  reecipt 
slirmld  lie  given,  lint  in  c(inse((iienee  of  a  ciiangc  | 
ill  ilufeiidant  eDinpaiiy's  Ijnsiiiess  a  new  jmliey 
was  issned  instead  in  the  name  (if  1'.,  as  liefoie, 
lint  having  indursed  uiion  it  an  assignment  (if 
T.'s  interest  to  tiie  plaintill's. 

Hi  1(1,  tliat  iilaiiuid's  (;iiuld  not  fec'over  nnder 
a  renewal  of  tlie  original  poliey  as  there  was  no 
jirivity  of  contract  between  lliein  and  tiie  de- 
feiiilants,  or  under  the  second  poliey,  as,  liaving 
no  interest  in  tiie  property  at  the  time  it  was 
made,  the  assignment  hj'  T.  was  iiiefl'eulnal  to 
pass  anything  to  the  plaintills. 

/''/■  Wcatherbe,  J.,  that  there  having  heen  a 
intitiial  iinderstiuidirig  tliat,  in  eoiisideration  of 
the  ))reniiuin  paid,  a  poliey  slioukl  be  issued 
payiililc  to  the  plaintiffs  to  indemnify  them 
against  loss,  if  the  pleadings  could  be  construed 
or  amended  to  cover  the  case,  jiidgiiient  siiould 
be  given  for  plaintiffs. 

Wijnmii  tt  ttl.  V.  Tlir  Imi/eria/  Fin  /»<. 
Co.  et  (d.,  20  X.  .S.  R.,  (S  K.  ^S:  (i.),  tS7. 


should  be  untrue  or  evasive,  or  if  the  applicant 
should  conceal  any  facts. 

There  was  no  such  warranty  in  the  bond,  but 
the  applic'ation  contained  a  condition  to  tiiat 
effect. 

The  language  of  the  jilea  was  :  "  If  any  of  the 
answers  made  in  the  application  for  the  same 
should  be  nntrne,  evasive,  or  if  the  api)licaiit 
should  conceal  any  facts."  Tiie  language  of  tiie 
application  was :  "  If  tiuiie  be  in  anj-  of  the 
answers  luirein  made  any  nntrnth,  evasion,  or 
(concealment  of  facts." 

<Jiinere,  wiietiier  this  \\  as  not  a  variance. 

Wi'hsttr  eJ  ul.  V.  Thr  Mnlual  h'l/irf  Snri'/i/, 

•-'()  N.  S.  K.,  (S  R.  &  (!.),  .W; 
9  C.  L.  T.,  r.<). 

.\)tirmed  on  appeal  to  the  Su])rcnie  Court  of 
Canada.  9  C.  L.  T.,  2i:{. 


INSURANCE,  LIFE. 

Acllon  on  bond  of  nicmbcr.sliip  -  Misre- 
presentation —  Concealment  —  Warranty  — 
Variance — Tiie  dcfeudar.!'  .Society,  a  company 
doing  life  insurance  business,  was  sued  by  plain- 
tiff as  widow  of  J.  R.  L.  \V.,  to  recover  an 
amount  payable  to  her  niuler  a  bond  of  member- 
ship issued  to  the  deceased  in  his  lifetime.  Tiie 
main  defences  raised  were  concealment,  an  error 
in  the  statement  of  the  date  of  birth  of  tiie  de- 
ceased,  misrejjresentation  a.s  to  the  nature  and 
severity  of  an  attaci<  of  apoplexy  lij'  wliicii  he 
had  been  seized,  and  llie  date  of  its  occurrence. 

^U  the  trial,  judgment  was  given  in  favor  of 
the  defendant  on  the  sole  ground  that  the  attack 
in  ([ne.stion  was  proved  to  have  occurr-jd  four 
years  Viefore  the  date  of  the  a))plication  and  not 
five  years  as  represented,  the  medical  testimony 
showing  that  the  greater  the  length  of  time 
elapsing  after  such  an  attack  the  less  likelihood 
there  wonld  lie  of  its  recurrence. 

On  ap])eal  tjie  judgment  was  reversed,  and 
judgment  ordered  to  be  entered  for  plaintiff  with 
costs  of  the  appeal  and  of  the  trial  below,  on  the 
ground  that  the  issue  on  which  judgment  was 
given  for  the  defendant  was  not  raised  liy  the 
pleadings  and  that  the  other  issues  were  pro- 
perly found  in  favor  of  plaintiff. 

The  defence  also  set  up  an  express  condition 
of  the  bond  of  membership  on  which  the  action 
was  brought,  that  the  bond  should  be  null  and 
void  if  any  of  the  answers   in  the   application 


i  INSUR.INCE,  MARINE. 

j     At'tion  for  non-dclivcry  of  policy     When 

right  of  action  accrues — I'laintitis   insured  a 
j  vessel  in  the  oiiice  of  defendants,  on  Oct.  'J7th, 
ISCi."),  by  means  of  tlu^   usual   application   slij), 
lea\ing  the  broker  to  fill   up  the  policy  in   the 
usual  way.     t)n  the  .Slst  October  the  directors 
of  defendant  company  made   an  entry  in  their 
,  record  b(jok  in  the  following  word  :   "  not  aUow- 
j  ed  under  tlu^  policy  to  iimcecd  to  any  port  in 
1  .Soutli  dreenland,"  whicli  tliey  inserted  in  plain- 
tiff's policy.     Tlic  ])olicy  was  not  delivered  to 
;  plaintiff  till  tlie  1st  .iunc,    ISlUi.     The   first  i;i- 
',  tiniation    plaiutitl's    had    of   tiiis    new  condition 
was  a  notice  served  upon  them  on  the  I'ith  June, 
18()(i,  after  the  vessel   had  sailed    to  a  port   in 
South  Creenland.     The  vessel  was  lost  on  the 
I'itJ!  August,  l)S(!'i,  and  proof  of  loss  eyjiibiled 
;  on    the   •_''_'nd    Scjit.,    ISdli.      I'laintilfs    brought 
1  action  on   the  policy  on  the  'JOtii    Sept.,   1872, 
I  with  added  counts  for  tiie  non-delivery  of  a  pol- 
I  icy   in  accordance   with   the   original    contract. 
I  Defendants  pleaded  the  Statute  of  Limitations 
to  these  added  counts. 

Held,  that  as  the  action  for  brt^aeh  of  contract 

would  liave  lain  after  the  delivery  of  the  policy 

in  June,  lS(i(j,  and  before  the  loss,  it  was  barred 

by  the  Statute. 

Uolm-t.-iOH  <:t  al.  V.  Lorett  d  a/.,  2  R.  ct  C,  2d0. 


PENALTY. 
Action  for  — Proof  of  offence  necessary 

even  where  the  defendant  makes  default — 

See  JUDGMENT,  1. 


INDEX 


OF 


CASES  APPEALED  TO  PRIVY  COUNCIL 


ca8p:s. 


Where  reported    |     Where  reported 
on  appeal.  below. 


Column. 


Allen,  (Jow  r L.  U.,  Ii.'  App.  Cas., 

lis Unri'|)i'rtt'(l.    .  .  . 

American,   Tlio Sttwiirl,  •_".)•_',  ;( . . .    Stewart,  •J.Sd  , . . 

Bank  of  B.  N.  A.  r.  Strong I    App.    ('as.,  ,'«)7  ; 

:U  L.  '1'.,  (i'iT Unreported.   . .  . 

Bartisuix,  Till'  t'dbwjuid  Marino   Ins.  L.  K.,    (1  1'.  ('.,  .'M!!; 

Co.  '• .T_'  I..  ■!'. ,  .-)|(l 1  11.  .t  ( ■. ,  •_'.-..-) . . 

Bletliun,  Kxoli.  Bank  ot  ^'arnionth  c.   lU  App.    ('as.,  27.'!.   ."p  il.  iV  (■.,  .">."!.'!   . 
Britisii  Am.  A.s.s.  Co.,  Cos.snuui  r.  ,  . .  L.  II.,  I.'{  App.  Cas.,  (i  II.  \'  (I.,  4.")7: 

IfiO (J  ('.  L.  T.,  ,");{7  . 


i-_'o;? 

97-->,  n  •-'•-' 


.4.-)S 


,744,  ]-22-2,   1-_'7S 
101,  1IS4 


,7-'S 


Cape  Breton,  In  ro  tlie  Island  of .">  Moore,  1'.  ('. ,  ^''J ' (t7<i 

Chase,  Tlio V.  A.  ]\,  liV. V.  A.  1).,  1 1.'} ; P.Mill 

Coljeiaiid    Nhir.    Ins.  Co.   r.   liarteaux  L.  H.,  ti  1'.  C,  HI!); 

;)■_'  L.  T.,  .-.10 ,1  It.  &  ('.,  •_'.-..-..  .  .744,  \2-2-J,  1-J7S 

Colonial  Bank  >'.   Excliange  Bank  of  ' 

Varnionth  L.ll  ,1 1  Ai.p.Cas.,«4. .".  It.  *  <;.,  2]'^ 1S6,  SSO 

Cossnian  r.  British  Am.  Ass.  Co...  \   L.  It.,  l.'{  App.  Cas.,  (i  It.  ^  (i.,  4.->7,  401; 

Cossnian  /•.  West J     lOH 0  (.'.   L.  T.,   .■);i7 7'-'S 

Creelman,  Kearney  c Leave  refnscd 0  It.  vS:  ('•.,  {)2  : 

1  iOC.  L.  T.,  ]4:i 4II7 


DesBarres  v.  Shey. 


28    L.    T.,    592  :     i 

22   W.    It.,    27.'!.,.  2  N.  S.  I).,  ,S27.. 

PJxeli.  Bank  of  Yarmouth  r.  Blethcn.  .  IK  App.  ('as.,  273. .  ''>  It.  &  (i.,  ri'Xi  . , 
Excliange  Bank  of    Yarmouth,  Colo-  \ 

nial  Bank  c L.It  ,11  Api).Cas.,Sl.  5  R.  iS:  (J.,  21.")  . , 


485,844,958,1121 

101,  11S4 

180,  880 


Fly,  Tlie .\11irmeil IStewart,  171 | 1120 

li'or.syth,  McAllister  v i.eave  refused .")  K.  &  C,  151  ; 

12  S.  C.  R.  1 147 

Furieuse,  La Allirmed Stewart,  177 1 126 

CJoodall,   Hill  r   ...    .'{  Murd.  Kpit ,  149.    Umeporled 1<)U 

Gow  i:  Allen L.  It.,  12  App.  Cas., I 

118 iCnreported.      PJtKi 

Gregory   i\   The    Halifax  and    C.   B,  | 

Railway  and  Coal  Co (-'as.  Dig.,  ,544 ;4  R.  &  (J.,  4,S0 7GU,  1(J9G.  i;n  1 

Halifax  and  C.  B.  Rciilway  and  Coal  \ 

Co.,  (iregory  r Cas.  Dig.,  ,544 14  R.  &  (i.,  430 700,  1090,  LSI  1 

Happy  (\)U])le,  The 1   Kdwards,  1 IStewart,  05 1123,  1125 

Hill  V.  Goodall 3  Murd.  Kpit.,  149.  iUnreported 190 


Kearney  v.  Creelman Leave  I'efused 0  R.  &  (^i.,  92  ; 

OC.  L.  T.,143 


Kenny,  Parker  v Allirmed  . 


-)  R.  it  (I.,  4;57 


497 

.686,  1325 


1641 


1642 


INDEX. 


CASES. 


Where  reported 
on  appcul. 


Where  reported 
below. 


Lockhart,  Mott  v. 


,  iL.  R.,  8  App.  Civs., 
1568;  r)2L.J.,P.  C, 


61. 


McAllister  v.  Forsyth |Leave  refused. 

1 
McKay,  MuLenn  v 

McLean  i'.  McKay 


L.  R,  SP.  C,  327; 

29  L.  T.,  .S52 

L.  R.,  5  P.  C.,327; 

29  L.  T.,  .332 

McSweeney,  ^\'allace  i' . . .  L.  R.,  2  P.  C,  180. 

Morton  r.  Snow 29  L.  T.,  591 

Mott  I'.  Lockhart ;L.  R. ,  8  App.  Caa. , 

.-i08;52L.  J.,  P.  C, 
61 


Unreported 

2  Old.,  .332 

2N.  S.  D.,237.... 


Nancy,  The Reversed. 

Parker  v,  Kenny Affirmed. 


Shey,  DesBarres  v !28  L.  T.,  592  ; 

22  W.  R.,273    .... 

Snow,  Morton  v l29  L.  T.,  591 

Strong,  Bank  B.  N.  A.  w \   App.    Cas.,  307 

34  L.  T.,  627 


Three  Brothers,  The Affirmed 

United  States,  The Reversed 

A''enus,  The Affirmed 

Wallace,  In  re JL.  R.,  1  P.  C,  283; 

136  L.  J.,  P.  C.  9. 

Wallace  v.  McSweeney L.  R.,  2  P  C,  180 

West,  Cossman  v L.  R.,  13  App.  Cas.,  6  R.  &  G.,  461  ; 


Unreported . 


5  R.  &  O.,  151; 
12  S.  C.  R.,  1 


Unreported. 


Unreported.  . . 
Stewart,  28  .  . . 
5R.  &G.,  457. 


2N.  S.  D.,  327.. 
2  N.  S.  1).,  237. 


Unreported  . 
Stewart,  99 . 
Stewart,  116 
Stewart,  96  . , 


1  Old.,  6.54  . , . 

2  Old.,  .3,32. 


160. 


Western   Counties    R'y.  Co.    v.   The 

W.  &  A  R'y  Co L.  Pv.,  7  App.  Cas., 

178;  31  L.  J.,  P.  C, 
43  ;  46  L.  T.,  351  ; 
ll  Cart.,  397    


6  C.  L.  T.,  537. 


Windsor  &  Annapolis  R'y  Co.,  The 

Western  Counties  R'y  Co.  v..    . .  L.  R.,   7  App.  Cas., 

178;  31L.  J.,  P.  C, 
43;  46  L.  T.,  351; 
1  Cart.,  397 


2  d.  &G.,280; 
R.  E.  D.,383... 


.  2R.  &G.,280; 
'K  E  D.,  383  . . . , 


Column, 


.872- 


147 

81,469,1121,1590 

81,469, 1121,  l.')90 
....  1007,  1121 
470 


872 

1265 

.686,1325 


48,5,844,958,1121 
470 


458 

1126 

972,  1124 
1123 


. . .  166,  .323 
, ,  1007,  1121 


.728 


273,  1162 


273,  1102 


INDEX 


OF 


CASES  APPEALED  TO  SUPREME  COURT  OF  CANADA. 


CASES. 


Where  reported 
on  appeal. 


Where  reported 
Ijclow. 


Column. 


Almon,  The  Prov.  Wash.  Ins.  Co.  v. . 
Anchor  Mar.  Ins.  Co.  v.  C'orbett  . . . . 

"  "  V.Keith.,.. 


Anderson,  Fisher  i' 

Anglo-French  S.S.  Co.,  Guildford  v. 

Attorney  General  i'.  Axford 

Attorney  General  v.  Flint  et  al . . . . 


Axford,   Attorney  General  v 


Bank  of  Nova  Scotia,  Mott  v..  .    .. 
(In  re  Bank  of  Liverpool;, 

Bank  of  Nova  Scotia,  Smith  v 

Beamish  et  al.  v.  Kaulback 

(In  re  Will  of  Beamish  Murdoch). 
Black,  Ells  V 


Boak  )'.  Mer.  Mar.  Ins.  Co . 
Boasom,  Wallace  v 


Bowmanville  Mach.  Co.  v.  Dempster 

Bradlej',  McLean   v 

Burkner,  Wallace  v 

Burnham  v.  Davison , 

Butler  i'.  Mer.  Mar.  Ins.  Co 


Cas.  Dig.,  220. 
9S.  C.  R.,  73. 


9S.  C.  R.,483; 
4C.  L.  T.,  178  ... 
4S.  C.  R.,406... 
9S.  C.   R.,  .S03; 
2  C.  L.  T.,  200  . . . 
13  S.  C.  R.,294; 

Cas.  Dig.  ,55 

Cas.  Dig.,  324; 
4C.  L.  T.,  116.... 


4R.  &C.,  5.33.... 
2  R.  &  G.,  .375; 
2  C.  L.  T.,  107 ... . 


3R.  &G.,402     .. 

1  R&G.,  177.... 

2  R.    &  G.,   i54; 
1  C.  L.  T.,.5.54.... 
R.  E.  D.,429; 
5R.  &  G.,  107  ... 


13  S.  C.  R.,  294  ; 
Cas.  Dig.,  55. . , . 


14  S.  C.  R.,  650.. 

8S.  C.  R.,  .5.'i8  ... 
3S.  C.  R.,  704... 

14  S.  C.  R.,  740; 
7C.  L.  T.,  .390  ... 
1  S.  C.  R.,  110  ... 

2S.  C.  R.,  488  ... 

2S.  C.  R.,21  ... 
2S.  C.  R.,  5.35... 
Cas.  Dig.,  .380  ... 
Cas.  Dig.,  515  ... 
Cas.  Dig.,  221    ... 


3R.  &C.,453. 

R.  E.  D.,  429  ; 
5R.  &G.,  107 

6  R.  &  G.,  531 

4  R.  k  G.,  146 
3R.  &C.,427. 


7  R.  &  G.,  222; 
7C.  L.  T.,  326... 
1  R.  &;C.,288  ... 
2R.  &C.,  419  ... 


2R.  &C.,273 
2R.  &C.,584 
5R.  &G.,  504 
5  R.  &  G.,  ,388 
5  R.  &G.,  301 


Chisholm  v.  Kenny . 


Cliittick,  Creigiiton  i'. 


Cogswell,  Webber  v 

Colchester  r.  Watson 

Commercial  Union  Ass.  Co. ,  Logan  v. 
Confed'n  Life  Ass.  Co.  v.  O'Dounell. . 


Corbett,  Anchor  Marine  Ins.  Co.  v. 

Corbett,  McKenzie  v 

Corbett,  Prov.  Wash.  Ins.  Co.  v. .. 


Caldwell  r.    Stadacona    Fire  &    Life  II  S.  C.  R.,212; 

Ins.  Co 3  C.  L.  T.,  94. 

Cameron,  Pictou  School  Trustees  v. 

Chesley  v.   Murdock 

Chesley,  Queen  r 


2  S.  C.  R.,  690 
2S.  C.  R.,  48  . 
9C.  L.  T.,212 

Cas.  Dig.,  298 


.724 

.742 


,  .73& 
,  1627 


...370,759,  1277 
1238 


....28,266,  1144, 
1276,  1308 

1238 

184,  1107 


18H 
.*82,"ll()2,  i6.34 


...438,  47,3,  1610 

82,  552,  731,  1102 

....  91,  560,  680, 

778,  1023 

1119,  1227 

....18,  .378,  1000 

3S5,  llO'.i 

..963,  14i;4,  1.55!) 
723 


7  S.  C.  R.,  348; 
2C.  L.  T.,248... 
2  8.  C.  R.,  15  ... 

Cas.  Dig.,  98 

13  S.  C.  R.,270.. 
10  S.  C.  R.,  92; 
2C.  L.  T.,  337  ... 
13  S.  C.  R.,218; 
9C.  L.  T.,  211  ... 
Cas.  Dig.,  208  ... 
9S.  C.  R.,73.... 


3R.  &G.,218  ... 
2R.  &C.,.328  ... 
■2R.  &C.,321  ... 
|6  R.  &  G.,  313; 
|6C.  L.  T.,454  ... 
!?  R.  &G.,  497; 
J8C.  L.  T.,62  ... 
2R.  &G.,  90;    i 

1  C.  L.  T.,  568  ....  i . .  690,  1009,  1.329 

2R.  &C.,47 i 841,  1576 

'6  R.  &  G.,  549  . . . .  i . . .  374,  936,  1090 
|6R.  &G.,  309 697 

2  R.  &  G.,  231 ; 
1  C.  L.  T.,71l 714 


43,  709 

..  ...381,1240 
.538,  568,  1515 

246,  512 

255,  891 


Cas.  Dig.,  215 
9S.  C.  R.,  256 


1648 


Unreported  . . . 
2  R.  &  C,  570  . 
2R.  &G.,375; 
2C.  L.  T.,  107  . 
4R.  &G.,50... 
3R.  &G.,  109  . 


83,715 

538, 568, 712, 1515 


,742 
.736 
.725 


1644 


INDEX. 


CASES. 


WIllTI'  l'L'|)<)l'tUcl 
nil  a|)|iual. 


I    Wliei'o  reported 
btitow. 


County  of  C.  liivtoii,  ('rcwo-lU'iuli;  v.    II  S.  C.  I!.,  H    . . , 

] 
Cox,  C.imn  r ;{  S.  ('.  I!.,  -.'(Mi  .. , 

Craiyeii,  North  Am.  Lifu  Ass,  Co.  r. .   i;t  S.  C.  II,,  'J~H  .  . 

Crt'eliimn,  Kuiina'y  r M  S,  C,  K,,  .'{.'J; 

tiC,  L,   T,,  :VM  .. 
Creiglitoii  r,  Chiitick 7  S,  C.  U.,  'MS  ; 

'.'(',  L,  r,,  '.'IS  , 

Croiglitoii,  Dutl'iis  r 14  S.  C,  K,,  74(t ; 

7  C,  L,  'I',.  .'fS!l.   , 

Creiglitoii  r.  Kiiliii Cus.  Dig.,  .'ill    . . , 

Crewe- IvUiiile  c.  Comity  of  C.  ]lreton.   14  S.  C.  H,,  S  , . . , 


Cuiniiiiii.L,'s,  ( iliidwin  t' '('as.  Dig,, 'J4'i    ., 

CiiiiiiiiigiiiUii,  t,>i.'.eeii  (' Ciis,  Dig,,  l((7  ,  .  . 


Column. 


7  H.  &  <:,,  •.'('.( »: 

7  C,  L,  T,,  ;t4!t 371,  HO,-),  l-Jol 

i:iO!) 

•_'  R,  kV.,  ,VJS 1'2'_»,  4'.';},  M-1,  77... 

It.Vi,  1171 
II  I!,  .t  (i,,  440; 

tie,  N. '!",,  -as 711 

W  I!,  .V  <i,,  !i'.'; 

(ic,  I.,  r,,  14:1 496,  I2:i4 

;•-'  R.  .V  C,  ill); 
1  C.  L.  'I',,  nC.S  ....'.,  090,  KMMI,  1. •!•_'!• 

i  j 

Unreported I-.IO 

•-•  R,  .V  <;.,  147 .V-'4 

7  R.  HiV,.,  •.•(!(» ; 

7C,  L  T,,  ;U!) 371,  HOo,  I'JOI. 

I, '!()<) 

4  R,  iV  (i.,  lOS s;i,  7S'J.  1(»7<» 

ti  R.  ct  (;.,  .•!!  : 


tic.  L.  T,,  i;i!) 


.41(»,  701,  i;il7 


Dartmouth,  Wardens,  &c.  of,  Queen  v. 

"  "  (I.  " 

"  "  r.  (,)ueeii  ot  al, 

Oavidsoii,  <  lates  c 

Davisiiii,  llnniiiaiii  c 

Dempster,  IJowm.uiville  Maeh.  Co.  /', 

Diekie  '■,  \\' luoitii 

(Kings  Coiiiity  Kleetioii  Case). 
Diekie  el  al,,  Wundwurlli  et  al.  r,  .  ,  . 

Dickson,  Kearney  r   


fl.S,  C,  R,,  .•|()9  .. 
("as.  Dig,,  'JS,') , . , 
14  S,  C.  R.,  4.-)... 
('as.  Dig.,  .■)|ti... 
Cas.  I )iu,,. ■)!,■),,,. 
•-'S.  C.  Y;.,  •_'!.,.  . 
8  .S.  C,  R,,  |<r.>, .. 

14  S.  C,  R,.  7;!4, , 

Cas.  Dig.,  •_'.-)(»,., 


.,1  I!,  .';:  (i,,  4(I'J. , 

,  .-)  R,  k  (.',,  .'ill,, 

,  Uniep<prteil  .  .  .  . 

:>  R,  .V  C,  4.'il., 

i)  R,  it  (I.,  .'tSS. 


.,,1.38.  S.-a,    l'j;i(i 

l(».')4,  i-j;i7 

i.'is,  io;i7 

...  r)-.4,  !t44,  l.-(il 
0(W,  I4.S4,   l,V>ii 


Dom,  'relegi'a])li  Co,   v.  .Silver 


Doiill,  MrDonald  /• 

Doull  r,  Mellieilh 

Donll  el  al.  Western  Ass.  Co,  r 

Duffus  r.  Creigliton . . 


E1I.(  r.  Black 

I']sson  et  al.,  Wood  *• 

Kurt'ka  Woollen  Mills  Co.  v.  Moss, 

Fielding  et  al,  /•.  !Mott  et  al 


14  .S,  C,   R,,  743.. 
lO.S.  (\  R.,  -J.'W; 
•_'('.  L.  T.,-_'.VJ  .. 
Cas.|)ig,,'-'14.... 
14  .S,  C.  R,,  739.. 

IL'.S,  C,  R,,44(i., 

14  S,  C.  11,,  740; 
j7C,  L.  T.,  ;W!), ,., 

^14S.  C.  K,,  740; 
7C.  L,  T.,;{!)0.  .. 
0  ,S.  C.  K.,  •-';«»; 
4  C,  L,  T.,  )1(k,, 
n  .S.  C,  R,,  !t!  ; 
(i  C,  L,   'I'.,  20,.,. 

'14S,  C,  R.,  •2.~)4, ,, 


•-'  R.  i'v:  C.,273 lllll,  li.'L'7 

.  4  R.  &.  C,  IIC) (Ml,  .■|0(i 

,  7  R.  c\:  (i,,  !)(i; 

7  C.  L.  '1'.,  144  ....   8.",  -24.-),   V.V.) 

,  t)  R,  k<'.,  (m; 

X\V.  L.  T„    140,.,,    S.-.,  (l(;i 

,  ^OX.  S.  R, ,!).■),,    ,   ,.G.")4,  l.'?87,  l(iu;i 

•2  R.  >'v:  (i,,  17; 

,il  C,  L,  T,.  2S4,,.,     401 

,  3R,  &  ('.,  •27li 587,  7;il 

,  |7  R,  &  (;.,  341  ; 

17  C.  L  T.,  40(1,... 1.-2,  S.-.7 

,  (i  R,  .t  <i,,  478; 

it)  C,  L,  T,,  y,V.) i 40,  700,  70,-) 

'"  '  12,-.0 


Unreported. 


Fisher  v.  Anderson  . . . . 
Fitzrandolph  v.  Slianly. 


4S,  C,  R,,  400, 
Cas,  Dig,.  !.-•),, 


Flint  et  al.,  Altornoy  General  v 

Foote  )',  Footc  


For.syth,  McAllister  v. 
Fraser,  Simon,  In  re, , . 

Frasor  v.  Tupjier 

Fraser,  Wallace  v 


Cas,  Dig,,  324; 

'4C.  L.  T.,  110,.. 

lir>S.  C.  K,,  OlM); 
9C.  L.  T,.  10  ..,, 

12  S.  C.  R,,  1 

Cas,  Dig.,  240,  ,., 
Cas.  Dig.,  240.  .. 

!2S.  C,  R  ,  .522  ,.. 


Gallagher  v.  Taylor  , , 


,  ..,15  8,  C.  R,,  368  ,,, 


7R.  &(i,,222; 

7C.  L,  T,,  :Wi .,,4.38,  473,  lOlO 

4R,  &G.,  270 540,  '117 

(i  I!,  &C,,  274; 

tiC,  L.  T.,  451 85,  945 

0  R,  .K;  (i,.  .'l-'iO;         I 

OC.  L.  T.,  4!)l ' SOS 

1  R.  &  (;.,  177 1027 

2R.  &(i.,  l!l!t; 

1  C,  L,  T,,  705,,    ..|....160,  104;  ,121 


3  R,  &  G,,  4,53 , , .  ,28,  200,  1 1 44 

1270,  i:ios 

20  N.  S,  R.,71 1   1021 

5  R.  k  (!,,  151 i 147 

1  R,  i\:  (i,,  .•i.-)4 ....S2,  01.5,   1102 

1  R,  it  <  i,,  3.54 ; ,  , .  .82,   015,  !  I02 

2  R.  &  C,  3;}7 '■    512,  820 


1  R.  &  (;.,  279. 


,747 


INDKX. 


1(345 


(ASKS. 


Wlu'i't'  r<'|)()itL'(l 

nil  iipiK'nI. 


I 


<  illtfs  I'.  Idivid.iiill ('us,   |)ig.,   "ilti  .  .  .  . 

<;.clcl.s  Wllkiiis  r M  S.  ('.   It.,  •.'(i;i 

I  III  II'  lliiiikcr's  IsluMil),  I 

(;ill.s|,i,.,  Mcr,  hank  dt    lliilitiix  '•....  Id   S,  (',  K,.  .HI'.' ; 
(111  II'  Sici'l  Co,  oi  Ciiiiiiihi,  L'td),        .')  (',  t.,  'I'.,  •JTl'i.    .  . 


Wlu'i'i'  ri'iiiii'toil 

Ix'lliW. 


:.  K.  >'t  (i..  4.SI.., 

;!  K.  A  ('.,  ;i(i7.., 


Cnlllll 


.">»,  !I44,  I. ".(14 
.  MO,  ::.(•,  1144 


<  ilihln  ill  r,  (  'iiiiiiiiiiijjs 

<;M'l.'nlV    /'.    IliilifilS    \    C.      11,      I!'V     \- 

( '(Pill  (' '  . , , 


Ca;-,  Iti).'.,  '2\:>..  .    . 

Ciis,  Diu'.,  y.u.  ."M. 


(iiiililioi.l  /'.  An;. 

<  lllIlM    f\  (  'ii\     .  .  . 


■'rciirli  S,  .S,  ( '(] 


!»  S.  ('.  l:.,  .'ili.'l  ; 
■JC.  L.  'I'.,  'J.Vi. .., 
.'(S.  (',  1!.,  •_'!((;  .. 


llalif,t\   &    C.    1!.    Ky    .t    Ci.al    Co., 
( lici^oi'y  (' 


('as,  Dii;.,  4;U,  .'.44. 
Cas.   Dij,',,  L'l-J 


llali;';.\    >t  C.     1!.    l:'y    >*c    < '<.al    Co., 

Koikiii  r 

(Ill  ro  I'itaoii   l{'v  Daniau'i'.s). 
Halifax    iS:    C.    I!,    it'y    &    ('..al  Co., 

Levy  /• Cas.  Dig.,  .'il(i 

ll.ilifax.'City  of  /'.  Ki'iiiiy .'{  S.  C.  K.,  4!);  ... 

Oakcs  (• 14  S.  C.  K,,  040  ... 

'•.  Walkii'    ....jCas.  Dig.,  !IS   .,  .. 

Halit'ax  City  Kail  way  Co.  c.  <^>iilvii  .  .  ;C.i.s,  Dig.,  :!S!» 

Halifax  Sli'i'cl  l!ailv,ay  Co.  /•.  (^>iU'i:li,i('as.  Dig.,    IS 

Hamioil,  McLean  r.  .  .' .'IS.  C.   11.,  TtX) 

Halt,   rroo|,  ,1  al,  /' 7  S.  C.   I!.,  .".I'J; 

•JC,   L.  T.,  •_'.-.  1  ... 
llarvry,  I'irlou  liank  i-t  al.  '• 14  S.  C.  It,,  017.  .. 

Iln.kin    '-.    Halifax    ,«c   C,    I!.    Itv   & 

(  oal  Co Cas,  Dig,,   •_'4-_' 

(111  ri'  I'ii'tou  It'y  Damages), 

Ho- ten  nan,  l.i'(  'aiii  '• Cas.  Dig,,  .■)U4 

Ilowanl  .'t   al.   r.    l.anrashii  e  Ins,  Co.lll  S.  C.  It.,  !I'J  ; 

OC.  L.  "I".,  -JO 

Iluiiti  r.  Hoss  /' 7  S.  C.  It.,  'JSII 


.'>  It.  .V  (i.,  17,  41), 

lu  !:)1s,70I,7!h;,  iinc, 

I  1107,  i:i.'!-J 

I  It.  .\;  (;.,  !(is s4,  7s-.',  l(i7i» 

4  K,  >\;  (i,,  4;ill '    ,  ;t40,  700,  lll'.'ti, 

1  I0!m,  loiiit,  ii.vj, 
I  i;ni,  i.-)07 

■J  It.  \  C.,  .-.4; 

I  C.  I-.  'I'.,  .V.4 ;!70.  7.->!t,  l'-'77 

•J  U.  \  ('.,  ,VJS !•_'•_>,  4'.':<,  r.4-.',  77.'.. 

<x,:,,  1171 

4  It.  i\:  C,  4;ili :i40,  7f.O,  10:.'0, 

101)0,  10!)!),  II.VJ, 


I  It.  >>c  (;,,44S,,,, 


l.'Ul,  1.-.II7 

no,  i.Ti,  iitio 


Unri'iioi'lud !)liS 

I  It.  .\:  <;.,  .'{!) I-H».01s,lj(;(),l4it7 

I  It.  it  (i,,  lis s-2,  107,  171,  I0!)1 

;4  It.  iV  (;,,.'i7i •J4,  .'{77,  017,  0'j;{, 

j  0'J7,  into,  10O4 

riirc|)oi'ii'il I  ]{)'A 

L'liri'poi  ti'il Ill 

;<  it.  iV  c,,  101 looi,  I'J,'.!),  I.-.71 

I'J  It.  >t  (i,,  .'i.-.l  ; 

•J  C.  I..  T.,  !)."> KSO,li()S,rjJ.'),l.".so 

7  K  &  (;,,  l!)(i; 

7  C.  L.  'I'.,  I.'io .'i.'i.s,  IJI4 

1   K.  i'v:  t:.,  44S !)0,  i;),-.,    IKin 

•J  It.  .^c  ('.,  ^-^U .s;!o,  luMi 


.lohn-iin,  ( 1.  It.,  In  re 


Cas.  Dig.,. 'ISO,  .■.40,,. 


.ionrs  r.   Kinney II  S,    C.    It.,  70S., 

.loni's  (I  al,,  Slioley  et  al,   /• I.".  .S,  C.  It.,  ;Ji)S.  .  . 


Ix.in.liek  r.  Moll'i.soil     -J  .S.    C,    It,,  l-J 

IxaiiUiaek.  I'.eaniisii  el  al.  r :{  S,  C,  It,,  704 

(In  IT  Will  (if  lleainisli  Murdoeli). 

Keaii,  Kearney  r    .'i  S.  C.  U,,  .'{,'{J  ; 

(111  re  Hiisjiital  for  Insane).  Ciis.  Dig.,  oS.'l,  ;«).'?. 

Ki'arney  r,  Creelinaii 14  .'^.  C.  K.,  '.VA  ; 

(iC.  L.  T.,  .'W!)  ..,, 
Kearney  /',  Dickson ('as.  Dig.,  J.'.O 


.■.  It,  .S:  (;.,  I7J 701,  70S,  !)4."> 

'J  It.  .^-  (;.,44 4.".1,47I,117!),14!H* 

7  It.  ^  C,  ,-.1  ; 

7  C.  L.  '1'.,  !in .-.,-)!),  (il,'.,  IIOJ 

'.■)  U.  &  (i.,  •J44 0!)J,   l.'ion,  i:VJS 

•JOX.  S.  It..  .'{7S  ; 

!)('.  r..  '1'.,  lii  ]:>•),  4i;s 

•JR.  &  C.,  14S 44,    Si,    10.-4 

•A  K.  &  (',,  4'J7 .s^j,  I  lo^j,   io;u 


14  s,  c,  11,,  V4;{.,., 

Kearney  r.  Kean .'^  S,  C.  11.,  .'W'J  ; 

(111  re  Hospital  f(.i'  Iiisaiie).  jCas.  Dig.,  3S.'?,  'A<)'A 

K.'itli,  Aiielior  Mar.  Ins.  Co.  r    |J)  S.  C.  R.,  4S;< ; 

14  C.  L.  T.,  17S  .... 
Kenny,  Clii.sliolni  /•   jCas.  Dig,,  "JOS 


Kenny,  City  of  Halifax  )• JS  S.  C.  R.,  407 

Kings  County,  N.  S.  Eleulion  Case  .  .!8  .S.  C.  R.,  lO'J. . . . 
(Dickie  )'.  Woodwoi'tli).  I 


•J  R.  &  ('.,  .-.01 SJ,  :i'J7,  1 10 J,  1 1(1.'! 

0  R.  it  <i.,  !)'J: 

liC.  L,  T.,  i4;{ 400,  ]-2:n 

0  It.  it  (;.,  o.->; 

OC.  L.  T.,  140  ....   S.-),C01 

•JO  X.  S.  R,,  !).-> 0.-)4,    1387,  lOO.'f 

•J  R.  &  (',,  oOl ....  SJ,  .•^•J7,  1 102,  1  lo.'i 

•]  n.k  (i, 40-j 7:^s 

7  R.  &  (;.,  4!)7; 

8  C.  L.  '1".,  O^J   -J.V),  801 

1  R.  &(i.,:W 140,01 8,  rJOO,  1407 

4  R.  &  ( ;.,  10.-) I 00,  506 


n;4(i 


INDKX. 


CASKS. 


Win ri'  ic|i(ii(»m1 
nil  a|)|ii'iil, 


Wlii'iT  r('|i>irt('il 

Ill'loW. 


Cnllllhll. 


Kiiiu',  Si.  (;i(ir>.'(''M  l^lI•i^ll  (' 

Kiiiiiiy,  •Iciiu's  r     

Kllllll,  Clfiglltnll  ('    

I.aii(;i>liiic  Ins,  Co.,  HowmiiI  (I   :il.   ( 

I<:illi|iTN  r,    W Kvni  1 1| 

Lall.',   Mrltnlial.l    r 

f.iuiru',  I'dlici'tMoil  r 

!.<'(  'iiiii   /'.    Iliistoniiaii 

Ij'llnir    i\    IJilcllif 


I.i'vy '•.  Ilalilax  \('.  11.  K'y.'v;  CoaKo 

[..iviTpOdl.  Ill  II'  till'  llaiiU  III 

I  "''an  i:  'I'lic  ( 'MiiiiiiiTiial  IJii.  Ass.  ( 'n 


.Mi'Allisici-  /•.  I'ursvili. 

.McDiiiiald   r.   Dr. nil  ... 

"  ''.  Lane    . . . 


•is.  C.  It.,  14.T. 
II  S.  C.  K.,  70S, 

(a,.   Hi,'.,  .-)ll... 
i 

11  S.  C.    It..  !••.•; 
(i  ('.    I,.  'I'.,  •.'(!  ... 

•_'s.  c.  i;.,  I.">S  ., 

7  S.  ('.    l:.,   IC.'J; 

•-'('.  L.  'I'.,  ;t;is. . 
14  S.  ('.  I!.,  -.'.-.s. 
('as.  IH^'.,  ."i(U  ..  , 
;i  S.  ('.  I!.,  07(1; 

I  Carl.,    ISS     .  .  ,  , 

Cas.   I»ij^;..  ;il(l. 
14  S,  C.  II.,  (i.Ml 

i.'is.  c  "    ■'•■■ 

IL'S.  ( 


•_'  II.  iV  ('.,  ;ki I i(H>,  .'i<t(i 

I.-.  ll.iV:  (i.,  'JU '..(HCJ,  i:i(«i,  l.'f.'s 

'•-•  I!.  \-  C.,  147 I .''-'I 


I!.,  ii;(»  ., 


.M.l'hrrsnii. 


Mr|),,n,,l|  ,•.   Mr.Ma.t.T 
.\hl»(iii.L,MlI,  Sinyllic  '■. 
Mr(  iiiuaii  '•.  Mnckli  r  . 
.M.Iiit-sli.  .Mcai.'V  r  .  . 

M.-Iliviih,  I)<,i,ll  ,•.... 


M'-'Ki'iizic  r.  Cnrl.clt 

.McLean  r,   liiiiilKy 

Mi'Lcaii  /■.   Il:;nniiii   

.Mc'MasIrr,  .\|r|),,nfll  >■.,,. 
.\Icl'liul>.in,  .McDonald  r .  .  . 


.  Cas.  Dij,'.,  '.'14  ... 
.  7  S.  C.  I!,,  !(;•_' ; 

•_'('.  L.  'I'  ,:!;;s  ... 

.   I'JS.  C.   11.,   Ihi; 

(i  c.  L.  'I'.,. •is,-.  ... 

.  Cas.  |)ii{.,  141  ... 
.1  S.  C.  11.,  114  ... 
.  Ciis.  Dij;.,  L'.-iil  ... 
.14  S.  C.  i;.,  74(1; 

7  C.  L.  'I'.,  ;)!•(>.... 

14  s.  c.  i;,,7;{!i. . . 

.  ('as.   Di._'.,  '-'I,".    ... 

.  '.'s.  c.  i;.,  ,v!.-  . .. 

.,.■!  S.  C.  I!.,  701;  .  .. 
.'('as.  Dig.,  141  ... 
.  I-_'S.  C.  K.,  4I(J: 

(ic.  L.  'r.,;!s.-.  ... 

Mai>liall  /■.  Miiniii|i;i|ii\-  ot  SluHaiinc  14  S.  ( '.  It.,  7.'i7  ; 

7  ('.  L.  'I".,  I.'fd  ... 
liis.  c.  1;.,  ;;ii.'; 
,-. c.  L.  'r.,i.'7i;.... 


.Mt'ivliaiits'  r.uiik  lit    llalit'a.\  '■. 

( lilli'spic 

(In  re  Slccl  (  '...  of  Ciiiada,  L'lci 


.Mmx'liants'  r.ank  /•.  Smith 

.Mcr.  Mar.  Ins.  ('(..,  lioak  /• 

I'.iillvr  r   

'■  '■         ( )'( 'oiinor  ('  .    . . . 

"  "         /■.  KuMisi'y 

"  "         Trooi.  r 


.Mofkler,  Mc(Jr(\van  r 

Mf.ir,  Si.veioigii  Fire  Ins.  Co.  r.  . . . 

.Montreal  Ocuaii  S.  .S.  Co.  r.  lloniio. 

Moonoy  ('.  Mcintosh 


Cas.   Dii,'.,  .'SiMl     .  , 
1  S.  C.   I!.,  III!  .. 
Ciis.  Dig.,  '_>•_> I    .., 
!!l  C.  L.  4'.,-_'(l!l  .., 
!)S.  C.  i;.,.-.77; 
4  C.  L.  'J".,  17!l  .., 
I.'{  S.  C.  R.,  .■|(m;  ; 
(!C.  L.  T.,  .Ssii  ... 
Cas.  Dig.,  L'.'til    ... 
14  S.  C'  R.,(il2; 
7('.  L.  T.,  IL'9  ... 
Unreportud 


:.  1!.  \  C,   I7-' .  .  .   7t»l,  7ii>,  HI." 

•J  1;.  >^c  C.,  .S4... 
•J  1!.  iV  (;.,  IC; 

I  c.  L.  'I'.,  ;u(i iin.'i 

I'mi  polled I s:i..Mili 

•_•  1;.  \  ('.,  ■-'•-".• s.'Mi,    insu 

•J  1;.  \-  ('.,  tr.d sd,   I'll,  --'lis,  ((i;(, 

I  14(1.  I.'tiil 
I  jii  c-porlrd '.Ids 

<i  1!.  \  (i.,  r..'!i iM,  1 1117 

li  1:.  \-  C.,  .■lull (i!l7 

:.  K.  .t  (;.,  i:.l 147 

:i  K.  i^  ('.,  -..^c. ."1S7,  I'M 

•J  I!.  &(;.,  .".7. 

I  c.  L.  'r.,;un lilt;! 

1;  1;.  .S:  (i.,  -JV^  ; 

tic.  L.  '1'.,  n;{ Ki.'.s,  iiss,  I'.'ii 

:.  U,  A'  <:.,  4:is  ....i 447,  117."> 

I  U.  AC.  ;i7l   ....' Iii!t7 

Ciiicporlcd     .... 
7  K.  iV:  (1.,  4I!»: 
7  ('.  L.  'I'.,  4:!(i  .. 
7  K.  ^  C,  .'Ul  ; 
i7  ('.   L.  'I'.,  4IMi  .  . 

4  11.  &  (;.,."(! 7.'iil 

I'J  U.  i'v  ('.,  r>s\ is,  ;i7s,  KKKi 

.•t  II.  &  ('.,  Kil    10(11,    iLV.H,  l.-,7l 

.-.  1!.  vV  (;.,  4;!S 447.  I  IT"' 

i;  I!.  vV  C.,  •JfJ: 

lic.  L.  'l'.,4i;j lo.'is,  iiss.  i-.'ii 

7  1!.  .^:  C.,  171  ; 

7  c.  L.  •!".,•_•  ts ■_'.■.;!.  :ii:!.  :.l:f 

.■.  i:.  \-  (I.,  17,  4!i, 

141    .■ils,7(il,7'.lt>,  IM"i 

1107,  l.'CTJ 

lifi;! 

1  U.  .^  ('.,  'Jss  ....  s-_>,  .-..-,■_',  7:11,  1  iti-' 
r.  H.  .V-  (i.,  ;ioi  T'-'.'i 

•JO  X.  S.  l!.,.-il4 741 


icii: 

1.V.7,  iii;)7 

l.V-',  .s.'.7 


Morrison,  Kandick  r 

Mo.ss,  Eureka  \VoolIun  xMills  Co. 


Mott  V.  Tiiink  of  Xova  Scotia 

(In  ro  the  llarik  of  Liverpool). 
Mott  et  al.,  Fielding  et  al.  r 


Mott,  Stuart  r 

Murdoch,  Keainish,  In  re  Will  of. 
Mnrdock,  Chesley  r 


US.  r.  R.,  740; 
7C.  L.  T.,  ;{<)0  ... 
•JS.  C.  H.,  1-2  ... 
11  S.  C.  U,,  01  ; 
(iC.  L.  T.,12(J  ..., 
14  S.  C.  R.,  0.V)  , 
i 

14  S.  C.  R.,  •.>,->4  ., 

I 

il4S.  C.  R.,  7.'W., 
'3  8.  C.  R.,7()4  ... 
•2  S.  C.  R.,  48  ... , 


7;i4 

7-'!> 

ii;w 

.-.!)•_',  70;! 

111.-. 


II!.  .^  (;.,-j'jo  .. 
li  It.  .V  (!.,  ;c_';i; 

(iC.  L.  T.,  4.-.4  .. 

l'iire])(.rted 

'(I  K.  &(;.,  .-.O-'; 
OC.  L.  T..  .-41... 
7  Pv.  >.V  (i.,  .'il-J! 
7('.  L.  T.,  :I7.-... 
7  R.  &('•.,  41!l; 

7  (".  h.  'I'.,  4;i(i 1.'),".7,  l(i;)7 

•JR.  it  ('.,  14,S 44,  81,   l().-.4 

(i  R.  it  (i.,  •->74; 

|(iC.  L.  T.,4.-.l 8.-),  !)4.-. 

(J  R.  &  (J.,  .-..SI  184,  1107 

(IR.  &  <!.,  ;W!);        I 

(H\  L.  T.,4!ll  8()N 

Unreported 87.'-! 

•.i  R.  it  ('.,  4-_'7  ..... .  .S'2,  1 10i>,  W,U 

■2  R.  &  C,  .Sl>l  ......  ..-viS,  .W8,   l.-.l,-. 

i 


INDKX. 


I<i47 


CASKS. 


Wlnif  nimiictl     I     Willi  !•  ii|i(ii  iril  .,  . 

on  ii|i{iL':il.  liiliiW,  I 


Mutual  Mcliif  S(MJ(  ty,    Wil.stcr  c.  . 
N'liiili  Am.  I. ill'  Asm.  Cii.  c.  ('liiigoii 


»C.  I,.  T.,  -Ji;!  ....  •Jii  N.  s.  1}.,  ;U7; 

!M'.  I,.  'I'., .-.!) lu;;-.',  lii.'lll 


i.'is.  c.  i;.,  I'Ts 


O.iki's  ,•.  Cltv  "f  llalifilX |t  .•<.  r.  !!.,  dill  . . 

O'Cniiiir.r  -•.■'I'lic  .M.'U'li.  Mar.  Iim.  ( 'n.  It  ('.  I,.  'I'.,  ■.'n!(  . . 


<  I  I  »Miiii(.||,    ( '(iiitVili'iaiiiiii    l.il't.'    As^i. 
I '".  Ill'  ( '.iiiitla  '' 


(I'Tunl,.,  W;lllar|.  ,• 

I'alrh   r.    I'illiiitii 

I'irliui   Kallk  l!l  al.  r.  llaivcy    

rirl(]||  ,'^,■||n(l|  'I'lll.-it  CCS  C.   CalllCIOll    .  . 
i'itlll.in,    ralcli  r 


I'l'd'!"!',    <jtllCCll    !• 


I'l  (pV.  W'a^li.   Iii'^.  ( '(I.   r,  .\  lull  111 

"  "  /■.   Cdllictl 

I'lljjll,    Rolicilsdii   <• 


((•llCfii   '•.  (  'llliliili;^liaiil . 


KtS.  ('.    l;.,  ill'; 

•_>c.  I-.  ■)'.,  ;n7  .. 
i:i  s.  c.  i;.,  -.'is  ; 
lie.  I,.  ■!'..  •Jii  .. 
Cn.M.  hiu'.,  '-''IS  . . 
('us.  1)1  J,'.,  »•_••_'  .. 

('as.    Dig..  'Jill    .. 

II  s.  (',  ;;.,  (ii7 

•J  s.  ('.  U.,  li'.iu  . . 
•  iis,   Di-.,  •Jl!t    .. 


I."i  s.  ('.  i;.,  till  : 
!JC.  I..  'I'..  Is  .. 

('as.  ])■]•:.,  •.'•.'u    .. 

OS.  ('.  I!.,  •.'.-)(•,  .. 

i.'>  S.  ('.  I!.,  Till)  ; 
!>('.  L.  'I'.,  17  .. 


('as.   hi.'.,  |(i7 


'•      ll.ilil'av   Citv    Kailwav  Cii.  '•  ( 'as.   I  »ii:. ,  .•|S!)     .. 

"     The  llalitax  Si.  l;'v(''ii.  /■ ('as.   Hi;,..,  Is  ,  .  .  . 

"      '■.   l'lrr|Kr '. I.")  S.  C.   l;.,   nil  : 

!»('.    I,.  T.,    IS     .. 

'■       '■.   'I'lir   W.liarlis.   .^r.    of    D.irl.  '.I  S.   ('.    l;..  .'lUil    . . 

"     Tlir  Wanlrii.s  \-c.    "I    Dart.  r.  I  I  S.  ( '.  !;.,   1.".  .. 

"                    "  (as.  Diji.,  "Js.'i    .  . 

(.luiTU   r.  Ciii'-lrv DC.   I,.  T.,  •2\-2  .. 


(i  I!.  \-  C.,   nil; 
It;  I  .  I..  'I'.,  .'i.'ls  .. 


711 


.]!  I!,  k  (l..!ts S'J,  |(i7.  171.  H'iM 

.  •-'(I  \.  s.  It.,  ,•.!» 7tl 

•J  I!.  \  (;.,  '.'.'Il  ; 
.  I  <  .  I..  1'.,  711 714 

.    l'lllr|MilliMl , S",7l.'l 

,  •_'  I!.  \-  ( '..  ."i7"i  . . .    .VIS.  .'(■|N.7I-.  I"'l'< 
.  I  i;   \-  <:.,  .•i.'.7  ....  lii.'JJitiMn;;.'.  II  i;i 

.  7  l;.  >.<:  (..,  •-'!is; 

7C.  I..  •I'.,;:7l T'JO 

7  l;.  ,V  C,  I'.iii; 

7  c.  I..  'I'.,  i.'i'i ;i.'''^,  i'-i-« 

_'  i;.  >«i  c.,  .'I'js .'isi.  i-.'i(i 

7   I!.  .V  C.,  '.'DS  ; 

7c.  L.  T.,  ;i7i :•-'» 

Ciiic|Miiii'il     4l(i 

I  I!.  .^  (;.,  .■.;;.•! i-M 

;!  i;.  A  «;.,  Km 7'-'.'> 


•Jii  \.  s.  i;.,  i; 


.11, 7-'i,  I'l;;!) 


li  i;.  \  c.,  .Il  :        I 

lie.  N.  'I'..  i;;'.i  ......    jHi,  7!tl,  i::i7 

I'liicii.at.d     ' I  Hi:{ 

Ill 

IKi 


I  K.  iV  c.  III-.'  ......    I. 'is,  s.-.;;,  i  •_':;•> 

rMii"|i'ii't(ii   I.'ls.  i'j.'(7 

.">  I!.  \-  <:.,  .'Il  I  111." I,  I-.';;? 

(i  i:.  \-  c,  .'ii;: ;       ; 

i;  ( .  I,,  r,,  I.". I ....' •_Mi;.  .".!•_' 


I!ili!iir,  Liiioir  r 1:{  S.  ('.  |;..  0711  ;         •_>!;.  X-  c.,  i.-.u sd,  l!)l,  'Jils.  (I!;!, 

|l  Cai-t.,  4.SS j  I  lltCi.'  I.'in4 

Ui.lifrtsiiii   r.  I.alllic    |U    S.  ('.   K.,    '.'."iS,  .  . 'L'lliviinilcil N.'!,  ."i'»(i 

r.iilicltsnii  I-.    i'lmh h.")  S.   ('.   1;.,  70(1  ; 

j'.M'.  I,.  'I'.,   17  ....  -Jfi  N.  ■^.  1;..  I."' ....'ill,  7'Jl,   I'i'in 

lininic,'rhc  .Mmitifal  OiTaii  S  S.  Cii.  /■.  ilJiuciiiiftcil 7  1!.  ^V  •  J.,  ill-  ;  , 

7  ('.  1..  '1'.,  ;i7.".....  i iii.'i 

lio.ss  r.  Himtcr    (7  S.  ('.  U.,  -.'.S!)  ....  •_•  It.  .vc  r,.,  M 4,">1, 171 . 1 17!),  14!ii) 

Ki.yal  CaiiiKliiiii  Ills.  ('(!.,  Siiiiih  r.,.i('us.  Dij,'.,  lT .">  II.  ^^  ( i  ,  .'i-.'-J 7ls.   Iii7l 

Ituiiiscv,    'i'iio    Mercliaiils'    MaiiiK'     '!t  S.  ( '.  It  ,  ,")77  ;  ; 

liiMiraiic.'  ('(..  I' K'.  I,.  'I'.,  17!)  ....  1  It,  \-   C  ,   •_'-J0....    7.'U 


Seaman,  Wisl    -• ('as.  Dii,'.,  •_>|<l .".  It.  i'^c  C,  •-'(i7 

Sluuilv,    Kil/.raniliiliili  r ;Cas.  Dig.,  I.V.) •2  11.  i^cC,  I!l0; 

I  1  C.  L.  T.,  7i).->.... 

SlitlliuMio,    .Muiiiii|)alilv   of,   Mar-     lU  S.  (".  Tl.,  7.'i7  ;      |7  R.  it  t  i  ,  171  ; 

.'■liall  r ' i7  V.  L.  T.,  i:«) !7  ('.  L.  'I'.,  :.'4S 

Shdicy  ct  al.  ('.  Jimcs  ct  al ,1,'.  S.  V.  It.,  'AdS.        'JO  X.  S.  R.,  .•{7S  ; 

!  !•('.  L  'I'.,  (il 

Silvur,  The  Doiu.  Tclcgiaiili  Co.  v...;10S.  C.  R,,23S;       •_>  R.  Ot  C.,  17; 

\-2  (J.  L.  T.,  -i.VJ 1  C.  I>.  T.,  •_>S4 

Smith  r.  The  T.aiik  of  Xovii  Sc.-.ti;i  ..  S  S.  ('.  R.,  ,m,S 4  R.  it  C,  14(1 

"      The  Mfivhaiits'  Rank  r ;Cas.  Dig.,  :V.W 

"      Tho  Royiil  Caiuulian  Ins.  Co  v.  Ciis.  Dig.,  1217 .'>  R.  ^'v:  (1.,  ;«•_' 


Smylhc  r.  McDougall  , 
Souther,  \\'allace  r  . . 


1  S.  C,  R.,  114 1  R.  &  (;.,  .'{71 

2  S.  C.  R.,  .-)<)S  ....'_»  R.  it  C.,  r)4S  ; 

1  C.  L.  T.,  .V)ti  .., 


741 

.  1(10,  1(14,  .V_>I 

.2.-.;!,  :{4;i,  ."ii:? 

1 .'!),  4(1S 


4(11 

1S.S 

1103 

71s,  1071 
1()!»7 


200,  212,  224,  749 


1648 


INDEX. 


CASKS. 


Where  lejun'ted         Where  reportuil 
on  iippeiil.  lieliiw. 


Ciihmiii 


Siputli.'r,  Walliire  /• Cas.    l)ii{.,   3,s;i 

OC.  L.  t.,  --'lO.... 


Si)\uii'i:;ii  l'"ire  Ins.  Cd.  /•.  Moii' 


Unreported ' 82,  lUci.  1 1<»;{ 

•20  N.  S,  R.,  -)09 '.'O.-i,  -.M.-),  -.'is, 

22U,  4'JI,  ssu, 
I  1  I(i;f_',  IIO-J 

US.  ('.  1!.,  (il'J;      ()  It.  Sc  (i.,  .-)()•_'; 

7  ('.  L. 'I'.,  )•-'!) lav.  L.  T.,  ,-)41 .■)!):.',  7n.{ 

Stad.i. a   h'ire  anil    Life   Ins.   Co.,       11   S.  ('.  1!.,'_M'2;     I 

Caldwell  r ;{  (I.  L    '1'.,  !U :{  11.  &  ('..,  -JIS 4.S,  Td!) 

St.  Ccor^'e's  Parish  v.  Kinn •_'  S.  C.   H.,  U.S....  -J  U.  &  C.,  HSli KM),  .S'.Mi 

Stuart  r.'  Moti ' 14  S.  C.  K.,  I'M Uiweported S7.S 

Taylor,  (lallaglier  r ,■>  S.  C.  U.,  .StiS 'l   R.  &  C..  •_'7!) 747 

Tracey,  Young  r Cas.  Dig.,  S'J .">  II.  &  C,  ;ifSl .Tm,  .V_'S,  1017 

Troop  et  al.  /•.  Hart 7  S  C.  R.,  .".I'J  ;         •_'  R.  it  ( i.,  .S.")l  ;         , 

•2  C.  L.  T  , '_'.')!   ....  •_'('.  L.  T.,  it.-) 1S0,()(),S,IL'2.S,1.-)S0 

"     '■.  Menhants' Mar.  Ins.  Co iRl  S.  C.  R.,  .'>0(;  ;       (i  R.  &  ( i.,  ,T2.S  ; 

(i  C.  L.  T.,  .SHt)  . . . .  (i  C.  L.  T.,  4.54  . . . .  72!) 

Tupi.er,  I'raser  r Cas.  Dig.,  '240 1  R.  &  ( i.,  .•r)4 S2,  ()],■),  1 102 


Union  Hank  /•.  Whilnian  et  al. 


!)  C.  L  T.,  21.'! 20  X.  S.  R.,  194  ; 

I  S  C.  L.  T.,  ,SS1.... 


....  i.-s 


'•.  Souther !2  S.  C.  H.,  .ms 

!»('.  L.  T.,  210. 


Walker,  City  r)f  Halifax  )■ Ca.s.  Dig.,  itS 4  R.  .'t  (i.,  'Ml '24,  ;{77,  (il7,  t)2;{, 

i     ()27,  110(1,  ltio4 

Wall  ice  /•.  llossoMi 2  S.  C.  R.,  4SS 2  I.',  vt  C.,  41!) !)1,  .'tOO,  (WO,  77^, 

j  102;{ 

'■,  IJurkner ('as.  Dig.,  list) .')  R.  &  (;.,  ,"04 ! SS."),  1102 

"       '•.  Kra.ser 2  S.  C.  R.,  r)22 2  I!.  .V  ('.,  :W7 .">12,  S2ll 

'•.  O'l'oole iCas.  Dig.,  42:.' 4  R.  .t  (i.,  .•r)7....  4(».S,7!M),10.S2,  lU.S 

2  R.  IfiV.,  .-.4S  ;        j 

I  C.  L.  '!".,  ;■..-.() 20(i,  212,  22-t,  74!) 

20  X.  S.  H., .-)(!!). .  . . : 20:{,  21.-),  2l.s, 

22!»,  421,  ssd, 

lo;)2,  1102 

Uniei)orleil    S2,   1  l(r2,  IIO.S 

1  R.  &  ( ;.,  M)2 i;tS,  ,S,-).S,  12.Sii 

Unreported l.SS.  12:i7 

.->  R.  vt  C,  .Sll lir>4,  12.S7 

(i  \l.  &  (;.,  .■>4!t .S74,  !i;)(),   lO!io 

2  K.  vt  C,  47   S4I,  l.".7ii 

20  X.  S.  K.,  .•!47: 

•1  C.  L.  T.,  .-)!» 1032,   1(W!) 

.-)  II.  &(i.,  207 741 

(j  U.  ltd.,  47S: 

(1  C.  L.  T.,  .■).■)!) 4(f,  700.  711.-) 


'•       "        "        Cas.  Dig.,  -ASH.. 

Wardi'n,  >tt!.,  D  irtnioutli,  <,»ueen  /■..  .  !)  S.  C.  R.,  .-)0!). . 

'•.      '•         ..  US.  C.  R.,  4.-).. 

/•.      "         ..  Cas.  Dig.,  28,-).. 

Wat.son,  <  'olehester  r Cas.  Dig..  <)8  . .  . 

Wehher  /•.  Cogswell 2  S.  C.  R.',    1.")  . . 

Wel.ster  -•.  Mutual  Itelief  Sueiely !)  C.  L.  T.,  2i:J.. 


West  /'.  Seaman ( 'as.  Dig.,  21!)  .. 

We.-ilern  Ass.  Co.  r.  DouU  el  al [12  S.C.'R.,  44(j. 


West.  Counties  R'y  Co.   /■.  W.  iV   A. 

H'y  Co 

\\  hitman  et  al..  Union  IJank  '• 


Cas.  l)it,'.,:}!)l.. 
OC.  L.  T.,  2i:i. 


Wilkins  -•.  ( ;e<lde3 .S  S.  C,  R.,  20:! 

(In  re  Miinker'.s  Island). 
Windsor  iS:  Annapolis  R'y  Co., 

The  Western  (_'ountie.s  R'y  Co,  r..  Cas.  Dig.,  .S!)l     . . . 

Wood  /•.  Ivssonct  al !)  S.  C.  R.,  2;i!»; 

4(;.  L.  T.,  IK)  ..., 

Woodworth,  Diekie  v 8  S.  C.  R.,  192  .. . 

(Kings  County  Kleetion  Ca.se).        1 
Woodworlh.  et  al.  v.  Diekie  et  al US.  C.  R.,  I'U    . 

Woodwoith,  Landers  »• 2  S.  C.  R.,  \')S  . . 


Young  /'.  Traoey 


llo.S 

20  X.S.  R.,  194  ; 

8  C.  L.  T.,  SSI l.-.S 

;}  u.  &  c,  ;i()7 ',. . . .8t),  7.'>o,  1 144 


no:? 

4  R.  S:r,.,  27()  ....I .■)4(),  017 

4  R.  iS:(i.,  10.-)  !)(».. ■)0() 


7  R.  ^;  (i.,9e; 
7C.  L.  T,,  144 
2  11.  &  C,  84.. 


.8,-),  24.-),  4;W 
1'27 


Cas.  Dig.,  82 5  R.  it  C,  :?81    ......  X<r<,  .-)28,   1017 


index: 


ov 


CASES    IN    THE    DICIEST. 


('(II.IMN. 

Al)l)ey,  Aliuu,  Tliu  PJT.'J 

Ahigiiil,  Tlio 1 1->7,  I'JO'-' 

At'iidia  Co-oiit'i'iition  ISouii'ty  c.  Frascr.  ,  17.'{,  H'J'.I 

Autivo,  Thu !»IU,  1  l-i4,  I  l-Jd 

Adams  /;.  City  of  TIalifax (l-.Tt,  14(M) 

"        ('.  t'losliy lOSO,  l-_'i;{ 

r.  McFailaiio ;{U,  lOU.-J 

Aftoii,  Tlif    1  L'H(i 

A.  H.  W'ansD.i,  'Thu .'!(i7 

A.  J.  iMuiikliii,  Tlio WH 

Alexaiidor,  William,  Tliu 12M( 

Alliamhra,  Tiie 1:2(1!) 

Allan  r.  Caswell.. 3,  7,  17,  li-i,  -'4.S,  ,-,ri.-,,  71!),  14-lS 

"     ('.  McHuffoy   312,  .'132,  7')7,  Si>[ 

"     r.  Peters !)41,  10^0,  I.->!I2 

Allen  r.  <ln\v 12!(:{ 

Allianee  Society  of  London  r.  Cliisliolm  . .  .  .".107 

Allison  r.  Desliiisay 2.j,  10.5,  114,  177 

"       r.  (ioiidge 498 

Alma,  The 27,  12!I2 

Almon  r.  I5ritisli  Am.  A.s.s.  Co 7.'i'.l,  !»4;i 

"      r.  IJuscli 2.^."),  884 

"      r.  Cock    208 

"      r.  Cole  Hat-lioi-  Land  Co.   .'itO,  10C)2,  l.jl") 

"      r.  Fail  Uank.s 114,  WK^ 

"      ('.  Foote 1112 

"      c.  (!ray 9,  1.'>1,  074,  117lJ,  14!M 

"      r.  llntt     (i30 

"      t:  I'rov.  Wash.   Ins.   Co 72;{ 

"      I'.  Tremiet   8(il,  1 117 

"      ('.  Woodill    2r)!»,  4:J7 

Amanda,  The 1121 

American  'l"he U72,  1 122 

Amei'o  ('.  Ainero    3G3,  o'.tii 

Anchor  Mar.  Ins.  Co.  c.  CorlietL    742 

"  "      i:  Keith 7.'iS 

Anderson  r.  Arehihald 213 

"         r.  Ma.son..  819,  820,  1108,  1410,  14,VJ 

r.  I'arker L'.,  1  VJfi 

r.  .Suthuiland (1S2,  I. "(74 

r.  Taylor 782, 1041 ,  1420 

Andrews  r.  Honnett ")I3 

"       i>.  Landers 07,  .52."),  1420 

Angus  V.  Ihlietson 40.') 

Ann,  The 1297,  1298 

Annand  r.  Hrennan  3."{7 

Annand  r.  Merchants'  liaidi CO,  ir)7l 

Annapolis,  County  of,  r.  W.  &  A.  ll'y  Co.    I. '{2, 

1157,  14,-)3,  14,"),-) 

Annie  M.  Allen,  The I28.S 

Aunis  V.  Cook .  .'.'.i,  114.  1474 

Antigonish,  Asse-ssment  .School  Kate,  In  re  I.'IO, 

302,  123.-),  1244,  14.53 

Aral),  The 1 128 

Araniintha,  The  1 124 

Arclibold  r.  Mcr.  Mar.  Ins.  Co 73(i,  933 


COLUMN. 

Archibald  /'.  iilois.  .48:i,  491,  01,5,  042,  8.32,  H44. 

9112,  U')82,  1,587,  l.-'9.5 

"  r,  Moiii.son 4.34,  007 

Thos.  and  .loim.  In  le     .  ..  .080,  1311 

Architect,  The    1287 

Aniistioiij^'  r.  Trcfucy ,59,  003,  7!'2,  1(541 

Ariinjd  r.  |)ij.'L;doii 57 

Atiiole  Lod;;c'/'.  Williamson 392.  1021 

Atkinson  /-.Could 2.30,  ,548 

Atlantic,  The 1293 

.Attorney  ( Icneral  r,  Avcrv 12.35 

r.  Axfoi'd 12.37 

r.  I'.uUock 1027 

r.  Flint 2S,  ^M,  f>01, 

1143,  1275,  1.308 

"  r.  Fraser 05/,  872,  1478 

"  »'.  Her.icon 2.58,  1543 

('.  McDonakl   87.3,  1451 

r.  I'age 994 

.Vuguste  Andre,  The 1294 

:  Aura,  The 839,   1270,  1279 

:  Austin  r.  I'.oone .3.57,  5.55,  004,  1222 

I  -Vvon  Mar.  Ins.  Cii.  r.  IJarteaux 71t),   746 

-Vylward  r.  Aylward 976 

'  r.ackst.'om  r.  lick 122,  S18,  1 172 

iJaird  r.  Anderson .T51,  980,  1 1 18,  1220 

liaker  r.  Ihown 727 

"       r.  McFarlanc 31(i,    1247,  1457 

"       .".  Rcail    201,  901 

liaidv  of  v..  X.  A.  -•.  r,cll 881,  12,54 

/■.  Ihidd  21(1,  1007,  1010,  1409 

-•.  Harvey 209,  1314 

r.  Keith  ,520,  1048 

"  r.  Strong 4,58 

'•.  Worrall 0S7,  8!)7 

Hank  of  Liverpool  r.  Iligelow.  .  .  .   182,  180,  18«> 

512,  1148 

In  re 18.3.  1107,  13.33 

I'.ank  of  Nova  .Suotia,  Assessment  of ,  In  re     127, 

181,297,  309 

r.  IJar.ss 10,55,  1073 

i\  Chipmaii,      40,51,  205, 

220,  510,  ,539,  794 

lOOO,  1308 

1'.  Forbes     183,  1.321,1546 

r.  Forman    2.53,40.5,1,308, 

1412,  1402 

r.  Haliburtou  . .  .842, 944, 

978,  984 

i\  McKerrow.  .400,  1O06, 

1109,  1424 

r.  Smith     187,  1372,  1444 

liankof  Yarmouth,  In  re,.  128,  182,  989,  14.52, 

1455 
Banks  r.  Wilson 743,  1462 


56 


1649 


1650 


INDEX. 


COMiMN. 


Hiinneret,  Hoitoii  iuid  Alliiiinhra    TJTl 

HiiniKMinaii  r.  iMillcitoii T.'iO,    I'JIS,  l;!l)l 

Bar,  Admission  td,  In  ic I(i7,  lO.'i! 


Hai'uliiy  V. 

"     V. 
IJiirnaby  v. 

"  '  V. 


I-I-JS 
I  KM 
l'_''_'S 

7  IIS, 
1-_'M 


Diistan !I4, 

I'loas ,•{•2(1,  r)!l!», 

Kalt ")•_'!»,  I 

(ianlinur.    .  .,S4,  ;i(M,  ;!()().  .•i'.M,  : 

ift;i(;,  I 

Uariiliill  V.  IV'piiard I.V.!* 

liariLstuad  u.  ( )"Xuill ;  1 7 

Hariett  ('.  Jsulatod  Hi.sk  Ins.  ('<i,707,  KM '>,  l."iO'J, 

"    ('.  Siittis 71,  !C_M,  l,-)74  i 

Harry,  Catliorine,  Kstatc  of,  In  lu Kill' 

Harss  V.  ISanii  of  Nova  Scotia IHii,  i '(>•_'  j 

"   V.  Strong .SIU,  .''14,  l.'iO!),  i;U!»  j 

"    r.  Walhiue    4,V),   1(»47,  l.');{7  | 

Hai'toau.x  v.  ('ol>tM(uid  Ins.  C'o !.")()!)  i 

Itartlett  v.  I'lalt I fidti  | 

Kiirto  r.  Morris 44.">,   Ti.SO,  .'mI 

Barton  v.  Baldwin oil."),  !)((((,  1(M)l',  1'iO:{ 

IJalos  i\  CiaytiioMiu ,5(1,  401,  7SS,  l,VJi>,  \XiS 

Hatli  V.  Di'iniison •.',\S,  4(l'2,  5(i4,  787 

Batli  Estate,  In  ic SO,  •_'47,  oKi,  .'(IS,  1  l.TJ, 

I  KM,  14!»4 

Battleman  v.  McKunziu ?>'J,  !)27,  I."i0!» 

Bauei'  V.  (innn !)74,  I0S4 

"    Jolni,  In  ic (i74 

Beales  v.  Canada  Fire  &  Mar.  Tns.  Vo  .  .7(!.S,  !>4!» 

Beamish  v.  City  of  Halifa.\ ti.VJ,  |(M»S 

"       ('.  Kaulhauk S'_',    1  Mti,  Ki.'U  I 

(In  re  Will  I>eami.->h  Murdork).  i 

Beaver,  'I'lie !)7'2 

Beckwith  v.  Lordly <(S2 

Be«gs  r.  McDonald 184,  11  Id,  1  KSfi 

Belcher*.  International  Life  Ass.  Soc'y  ....713 

Bell  I'.  Brown 387,  r)37,  r)(>7,"!)0!l,  1 18(! 

"    V.  Carnithers 482,  087 

Bella  Mudge,  The 1278,  1280 

Belle,  The 1127 

Belloni  v.  Mnrphy 821,  1410 

"   V.  Sydney  &  Lonislrtirg  R'y  ('o.3S0,  7(>1, 

1044,  l(i()3,  i:!!!"),  1471 

Benjamin  v.  Campbell.   2r>,  (i37,  7tM,  1010,  lOtiti 

V.  To))in  !l!)!) 

Bennett  v.  Mnrray 103,  1  !(>(• 

Bent  V.  Banks  ...    772 

"    V.  McDougall S2(i,  111)4 

Bernmda,  The   1,  12,  13,  112(i,  1120,  1348,  V.\M, 

1378 

Berry  v.  ]5erry 828,   1340,  137ti  ] 

Bertram  v.  Bonham .")7!>,  lol  8 

"      V.  Herriman 01,  ir>3!t 

Betsy,  Sliip,  The I2(i,*) 

Benlair  v.  (iilliatt .    (i(i7,  78(1  \ 

Bigelow  V.  Blaiklouk 802  i 

"      V.  Norton 4r)3,  831,  iri82 

"      V.  Rand 20,  1210  i 

Billings  V.  Rust 842 

Bishop  Dyke,  In  re  130,  201,  307,  1  ")22 

Bissett  V.  Cordeaux 1(J02 

Black  V.  Barss 2r)0,  101 T) 

"      Estate  .lames  W.,  In  re 014,  (140 

"      V.  (iesner "203,  300,  (KM),  12.32 

"      V  Hallitmrton 1 281 

"      V.  Murray 030,  01 1 

"      v.  Sawy     148,1.300,1401 

"      V.  Stewart 1037 

Blair  v.  Sovereign  Fire  Ins.  Co 000 

Blake  v.  Stewart 1 17,  342,  aOO,  S7S 

Blauchard  v.  W.  &  A.  R'y  Co 288,  42.") 

Blethen  v.  (iardner 580,  1283 


ron-M.v. 

Bligh  r.  Darliiii,' .530,  1  .")7."> 

"   V.  Ki'nny 1  KM) 

Bli.ss  V.  .lltiia  Life  Ins.  Co 712,  027 

"   V.  Dickii! .-.74,  ll.'Si) 

r.lois  V.  Riciiards O.'.,  280 

Boak  V.  Mcr.  Mar.  Ins  Co 82,  .").'>2,  730,  1 102 

Boliakcrr.  Mor.se   .'i04,  030,  (ill,  1028,  l,-.2(i,  I.5;i0 

Bond  f.  Ilutcliinson 101,013 

Boml  r.  Ives 770,  004 

Bonnett  ('.  Cliesley 00,  .'iSO 

('.  Ritchie 240,  12.51 

Borden  v.  Chiuchill. .'{.'{7 

BoKsoni  ('.  ('ooiid)cs 07,  1041 

Boudrot  r.  Donovan 1020 

liontilier  r.  Ilaishman 801 

/'.  Knock AS,  401,  Oil,  027 

Bowen  I'.  Slieais I .-).")4 

"    r.  Troop .-m4,  041 

Bower,  .John,  In  re 1 148 

Boweis  v.  Ilutcliinson    450,  1012,  1408 

I'lowmanville  Macii.  Co.  r.  Dmnpster   1110,  1220 

Boyd  i\  Millctt .';I4,  4.34 

Biady  v.  Bell .583,  774,  121 1 

I'.iadiey  r.  McLean 17,  378,  KMIO,  14S5 

Braille,  Estate  Sojijiia,  In  re 404,  500,  1 1.35, 

l.37(i,  1402 

Rremner  l'.  Wallace 1024,  1 188 

P.ieiinan  ?,\  .lack 1 580 

Brciinoek  i\  Kraser ....  543,  007 

liiett  I'.  Lovett 225 

Biittain  c.  I'aiker 055,  1545 

Brooktield  i\  Symes (iO,  707 

Brown  V.  Boole 531,  8.30,  10.54,  1382,  1.385 

"         V.  Chcsley 840 

"        V.  If arri.s 227 

"        ?'.  I'cariiian (i04,  773 

V.  Wallace .380,  lOIS 

V.  W.  .\;  A.  R"y  Co..  120,  11.54,  1415,  1480 

Brundige  v.  Dclaiiey 100,  331,  .584 

"  V.  Tlioiii))son 570,  1472 

Brush  V.  .Etna  Ins.  Co 704,  001 

Bryson  v.  ( liahani 848,  1.S54 

Buckley,  David,  In  re 004,  1320 

Bunkers  Island.  In  re 80,  75(J,  1 144 

Burkner  >:  Wallace 7(),  .385,  10.50,  I  102 

Burnham  v.  Davison 0()3,    1484,    1.5.58 

Burns  /'.  .loius  .507 

"      V.  Rickards 81,  .382,  1004,  1120 

"       )'.  Snow    211 

I'.urritt  v.  llalticld 1030,  14.34,  1441 

Buirowes  v.  Isnor 500,  570,  775,  II. '{8,  1178 

Burrows  v.  Isener 555,   1040,  1440 

Burton  ('.  liurns 77,  1007,  1.304,  1510 

Butler  1).  Evans 220,  002 

"      i\  Merchants'  Mar.  Ins  Co 722 


( 'afTery  c.  Cameron 050 

Cahoon  V.  Morrow .38,  1200,  1306 

Cain  V.  Uhlman 538,  0.34,  1.540 

Caldwell  1).  Kinsman 440,  7(i(),  10()0, 

1177,  1.3.37,  1345,  1.301,  1303 
Caldwell  v.  Stadaeona  Eire  &  Life  Ins.  Co.     42, 

000,  700,  003,  1.501 

Cambridge,  The 12.50,  1284 

Cameron,  Assessment  of,  In  re 207,  12.39 

t).  Cameron 41,100.5,1102 

"        V.  McDonald 1.503 

"         c.  McDonnell    408 

V.  McLean 1244,   1433,  IfiOO 

Cameron's  Circus,  In  re 7,  1055,  1072,  1407 

Campbell  «.  ^Etna  Ins.   Co 700 


INDEX. 


1G51 


I'Ol.l'MX. 

('ain[ilK'll  ('.  Ciiniiilii  Ins,  Union T-l 

-',  (icnciiil  Mining  An.<(iij"ii.  .  ,,S(i(l,  il'J'i 

>'.  lliiUiljiMldn IMS  ' 

r.  llunilcrsdn ;i-'11,   I'J'JS 

"         t'.  .NK'Caskcll ;U!),  l-.'-J7 

"       V.  McisMiu: :u;{,  KHKs,  i;{70 

"         ('.  McKinnon    I.">1.S 

"         ('.  Vi.'iiilon mm;,  |((II,I.">7.S 

Cinii  ('.  Ini|)i'iiiil  Fire  Ins.  Co ."iSS,  702 

(  unl(;ilniiy,  'I'Ik; 


Ciipo  Hreliin  Ci 


.  1L".)I 
I4S0 


lll.V) 

1  •-'(;,•! 

I  .-4-J 

mill 


Anicit'LiiMcnt  of,  In  n^ .  . . 
,V),  S(l(»,  Slid,  I'JOO.  l.'flO, 

('a|R'  IJivton  Co.,  Ltd.,  i\  Dodil .•{'.i;{,  7.')S 

Cii|k:  IJiclon  Co.,  Mil.,  c. Cisliornc  Xil.  (>.")(»,  l()."iS 
Cii|K'  IJicton,  'riio  l.slunil  of,  In  ii:  ....(170,  l.'17t 

(  iiid  /•.  Wciks   (m,  ;{il I 

( 'lU'lottii,  'I'Ik^ 

CiUMiy  I'.  I'lialon 'J'ti 

( 'iur  /'.  ( 'aioy 'J.'iS 

('iuri},'aii  ('.  Ciiirij^iUi .").'i4,  iH4,  IMS,  Kl.'l^ 

Ciiity  r.  I'lonnull. .  .  10(i."),  KKSS,  llDl,  l'_'."i:i,  I.Mli; 
Caivull.  [n  Hi,  Kx  partu  (UitUlon,  1S!»,  .'lOS,  ,')7!t. 

7!ts,  \:\Jt:i 

"       i\  Wallace S4S,  1."m4 

Casey  ('.  Arciiil.ald 17!l,  U;!4,  il-JI 

Chaniliiirs  t\  ilimlcr 7.")4,   7li4,  HIS!) 

CiiandltT,  KstaU'  of.  In  ro 2').'),  SilO 

Chailcs  Foilus,  'I'Ik'    r-!>4 

Cliaso,   I'lit! r-'(i!» 

Ciiosluy  I'.  I'xnuR'tt 'Ai),  779,  lOSo,  1171 

"       i'.  ( iava/a 71 

"       c.  (liassi.i 77,  l'J4,  Sll  1474 

"       r.  Mnrdock •''A',  oCiS,  lalo 

Chipniaii  v.  ( iava/a.  ..  .!)4,  !»37,  104(i.  lOSl,  ITiilu' 
('.  Kitciiic  .  .  21.'),  i)!t4,  !)!ll),  lOO.'),  Hrj-' 

"         c  Sliaw 1(11  (i 

Cliisliolni  V.  Cliisholni  ■_';!() 

"         r.  Kenny  L'.V),  S'.)l 

"         V.  Maelioniiell I4(i(),  l(i-J!t 

V.  McHonald  4!I2,  .")71,  1 140,  l.",77,  l.'iSS 

Christ  Ciiurcli,  Darlnioiilli,  In  re l,"iS4 

Christie  v.  'I'honias 10r)7,  ir)7S 

Chnreh  i\  Chi'istie tilJ.") 

(.'Iiureh  Wardens,  Andiorst,  (,'.  Davison    3S4,  ").")(; 
"  [''alinoiitli,  V.  Vaughan..  .  '<U, 

H)-2-2,  !,■>.-.!» 
"  Tarrshoro,  r.  King. .  .  !)!),  -SiKi 

City  of  Petersburg,  The '20,  802,  127.S,  12!IS, 

1371 

Clarke  v.  Fiillerton 423,  588,  (504,  ()92,  !);U, 

1407,  1468,  ir)73 

Clarke,  James,  Estate  of,  In  re 1  (122 

Clementine,  The 801,  1271 

Clyde  Coal  &  Mining  Co,,  Jn  re  . .  .33,  2i)l,  1040 

Clyde,  The !»72,  1 128 

C()l)b  V.  Turner 128 1 ,  1 3!).") 

Cobciiuid  Mar.  Ins.  Co.  v.  Barteau.x    744,  1222, 

1278 

Cochran  v.  Boll ,558,  10G2,  1252,  1.502 

"      V.  Chipman 523,  54!),  (i8!»,  1591 

"      V.  Duncan 3,  1.378 

"      V.  Lareoni 04,  811,  1417 

Cock  V.  Bliss 104,  170,  383 

Cogswell  V.  Craham 912,  1170,  1348,  1488 

"      V.  O'Connor 4.30,  4.39 

Colchester  v.  Watson 374,  930,  lOiK) 

Coleman  v.  Duulap 203,  1254 

Collie  V.  Bell    1038,  1210 

t.  Moren. .  .  .98,  1040,  1357,  1359,  1519 

Collins  V.  Barss 1243 

"    V.  Doherty   490 


728,  732 


(OM'MX. 

Collins  i:  Held 1.53,  000,  840,  884,  1.380 

"     r.  .Story 405,  914,  1381 

Colonial  IJank  -•.  Kxehaiige   Hank    185,  879 

Com    IJank  of  Windsor  v.  lieekuilh.  .  .542,  7.54, 

1075,  1.5.33 

r.  IJorden 209,  !».57 

Conuau  7:  Leiilanc 141.3,  1,551,  H',00 

Condon  ;•.  Davis 480 

Confederal  ion  Life  Ass.  Co,  v.  O'Donnell.  .  .  .83, 

.5.38,  714,  715,  1515 

Coidon  r'.Citv  Railroad  Co 024,  1399,  1400 

7'.  Coiinoljv 033,  921,  1202 

Connolly,  ICstale  i)f,  In  re 399,  1141 

Cook  c' Davidson 41,  1081 

"     /•.  MeLeod 9!I3,   1207 

"      / .  .Sninner 709,  1053 

Coolan  /•.  .McLean 03,811,1417 

Coopci-  r.  Mylne 7.52,  789,  1005 

Coi)p  i:  Mttcr 875,  !I47,  9.50,  907 

CorlicU    ;'.  Anchor  .Mar.  Ins,  Co 742 

'•       r.  Corbclt      441 

"       r.  Mi'Ken/ie 730 

"      r.  ODcIl    275,  304,  1.329,  14.30 

"      r.  I'rov.  Wasli.    his.  Co 724 

"       r.  llobinson 15,  1100 

"      r.  .Slronach 1217 

Conb'lia  and  Ospicy,  The 423,  1208,  1.308 

Cornelius  r.  L.irtoii 820,  1.3.50,  1473,  1.549 

Cosey  /-.  Williams 388,  10.50 

Cossack.  Tiio     1130 

Cossilt  r.  Cook 197 

Cos.snrin  r.  Biit.  Am.  Ins.  Co.  \ 

"      /••  West J  ■• 

( 'ostin  r.  ('hapi)ell (i09,  1555 

( 'oulson  r.  Saiiuster 804,  141 1 

( 'owling  r.  LeCain .'i92,  !).50 

( 'ox   /'.  Crocker 10,50,  1,507 

"   r.  Klliott 300 

"   r.  C  mm.,.  122,  423,  .542,  7()2,  774,  i).5.5,ll7l 

"   r.  Will 1.51)4,  1.595 

( 'oxetter  r.  Hoiiisby 945,  15<»3 

Co/ens  r.  Wier.  .  .  .' 971,   1020,  1024 

Crane  r.  .lacobs 1108,  1,360 

Crawley  r.  Anderson ,  ,,33,  ,305,  1.302,  14.59,  1475 

( 'reamer  /•.  Kogan 150.3 

Cleelman  v.  MitMiiileii 101 

Creighton  i\  Chittick  ....  0!)0,  1009,  1.328,  1.389 

L\  Cook 382,  1439 

"        V.  Daniels 0,  10,  389,  1070,  1255, 

14.38,  1439 

In  re 081,  703,   1323 

"        V.  .lenkhis  048,  1509 

"        V.  Kuhn 524 

I'.   Lindsay      75,  7SK),  1027,  1245 

"        V.    Merehants'  Hank..  672,  08.3,   1.398 

V.   .Moore 908,  1062 

V.  .Spimiey     51,  901,  1083,  1529,  1535 

"        V.    Union  'Mar.  Ins.  Co 719 

Crewe-Read  y.  County  of  Cape  Breton 371, 

865,  1201, 1309 

Cripjis  ('.  Marriot .389 

Critlendon  v.  Municipality  of  (iuysboro  . . .  1069 

Crosskill  V.  Allison 1021,  1044,  1065 

V.  Morning  Herald,  The 456,  995 

Croueher  v.  (!unn 1027,  1214,  1246 

Crowe,  Assessment  of.  In  re  58,  139,  12.59,  1481 

"      V.  Lowden 479,  522,  826 

"      V.  McCurdy  ....  265,  400,  497,  789,  1524 

Crowell  V.  (ieddes 730 

"        V.  Jones 734 

Cuba,  The 1128 


1652 


INDEX. 


CulljCTt  V.  MiKcell SSd,  IC.Ci,  )(cj:>,  \-*-2\) 

Cuinl)orlinul,  'I'liistco.s  of    I'liMic    I'lippcity 

for,  V.  Kerr l."p,S(i 

CiiiiiiiiiiigH  c.  r>i(.wii    .'iSS,  ;t!)4,  1 1 44,  niili 

"         r.  (iliuluiii    s;!,  7,sl,   1(17(1 

t'uiuml  i:   Itviiii' 4.')(»,  4!lt,  S4!l 

C'liiiiiiiiglmiu  V.  Ifiidliy I.'iCm 

"  r.  MiilioiK'y '2i:t 

"  r.  Mof.so •_';i,S,  l.VJd 

('urlew,  Tlie 1  l.'io,  l.TiT,  ],'i.")S 

(-'urcy  V.  r.t!('iiis M,  77,  !l'-',  SHi,  1  !!)(> 

Cdiwiii  0.  \V.  i\.,  A.  R'y  Co L'ss,  1 1.'")7 

C'utlip?'.  Ciililwi'll (Ids,   l-_'.".s,   ll'Jo 

"     7J.  Cook I  Kks 

Cultfii  V.  McFarliiiie    :{7.  l-'!l!t,  l.'id.'!,  I.'fdd,  I;!(i7 
"      V.  SU'iiliiMis (i!)  ! 


Diilo  -'.  'I'lie  "  Volotity".    SO],  |-J7."),  l-".Mi,  l.'tOri, 

l;{(i,S 

Diiluy  V.  Kill  lull iV_'4 

Diiiiiel  V.  Vii'tli l(i'i-_' 

Darling  v.  (iillii's ■_'17,   Kc.'s,  i;,;u 

"       V.  MiLi'Uiui I(»!l,s 

"       V.  .MuLrllarid !»,s;{ 

Diirt,  Tin; .V),  !ll(i,    1  124,  I  l-.'(i,  l;i;{(i,  I.TiS 

Dartiiioiitli  School,  AssommiiuiiI  of,  Jii  vv. .  . . .  \;i~, 

1  •.';!■-) 

Davidson  v.  Lawrence '24,  '.Ui'>    124(),  U.YS 

Davison  v.  lienjaniin   .■)4r>,  (iOli,  (iOS 

"       V.  Ilurnliani I.'m!) 

"       V.  KiuNMian 2(!2 

"       V.  Mtdcahy ,S41,  1(121 

Delaney  t:  Hall 2l;{ 

Diilaj)  v.  Foster 114 

Delissor  7k  I'rov.  Ins.  C(j 7'{."),  !)(i2 

Deuuison  v.  Dill ;{.').'{,  l();{(i 

V.  (Java/a 1 1!)1,  l.'W.") 

"        z:  .lack   74,  :HH 

DesBarres  v.  \le\\ !J."il,   l(i.S7,  1,V>7 

"  V.  Laniiry   lOS,  ;W4 

V.  Sl)ey ....  484,  844,  [)M,  1121 ,1414 

"  V.  'i'reuiainc 4.")!t 

Desmond  v.  Fairhanks 42;j,  l."i4!t 

Devers  v.  (Javaza   2!t(i 

Devine  v.  McKenzie    7(i() 

Deuar  v.  Mm]iliy 70,  1420 

"      v.  I'eanlon 041,  l.VJ.S 

DeWolf  V.  Holmes 7(>H 

"       V.  Noilly 078,  774,  1,S24 

"       V.  Niel ;{2,  ITidO 

"        V.  I'ineo  ...    117 

"        V.  Puneluud 1(),'{:(,    10;{8,  l.'lOl, 

1457,  l.')98 

Diamond  v.  Municipality  of  East  Hants 373 

Dickie  ik  Klenkliorn 227,  877 

i>.  DeWolfe 3,S2 

r.  Mor.  iMar.  Ins.  Co 717,  1114 

"        ('.  .Spanks 8;i8 

"        (,'.  Woodworlli  (Kings  Co.  Election  Case) 

90,  .■>()(•) 

"       V.  Woodworth 85,  244,  432 

Dickson  r.  Kearney (i54,  1387,  KKCi 

Dill  r.  Wilkins   2."i0,  524,  035,  0.54 

Diocesan  Synod  r.  O'Brien 5S2,  8<)0 

Doane  v.  MeKenny 41,  420,  077,  001 ,  1077, 

1311,  154(i 

Dobsen  i\  McDonald 74 

DobsoJi  V.  McKay 1 102 

Dodge  II.  Halifax  Gas  Co 0(12 

"      V.  'i  unier 3t,Q,  1231,  1307 

"      V.  W.  &  A.  R'y  Co 2S(),  42ft,  lOKi 


t'OHMN. 

Dodsoii  r.  Crand  Trimk  R'y  Co 284,  ll5fi, 

1281,  1300 

Dogerty  r.  I'owcr 3(iO,  001,  121,'') 

I'oggctI  r.  'IVeniiiin    312 

Doniiiiiiiii  I'll.  Co.  ('.  .Silver 401 

Doiiiville  r.  Davies    lilt),  222,  000 

DoMolicec.   Borden 305,  1IHI3 

DoiKivan  r.  .Maliar 022,  78(! 

DooKy,  Mstate  of,  In  re 1031 

Doran  r.  Chandlers 43,  OUO,  1352,  1523 

Doliitla.s  1:  llawes 1070,  1583 

D.iiiil  ('.  Cariiiicliael 4!)7,  40S,  500,  ."lOI,  ri(l2 

"      r.  Fire  Ins.  Co 008 

"      i\  Linton 1.55,  440 

"      r.  .Mellreith 152,  8.57 

"      r.  Western  .\.ss.  Co 30,  700,  704 

Doyle  r.  (iallanl 310,  402 

"      1:  'rimniins .302,  10,53,  1305 

DrnnLniond  r.  Ciirrilt OOO,  l(*74,  iriO(J 

Dncacn  r.  Dmme 1004,  10,50,  |5(i7 

Dudley  r.  .hines 2,  8,  30,  0,5,  1044 

Dull'iis  r.  Creigliton 1250 

"      ('.  .MeI.earn 210 

Dunn  i\  Miller 004 

Dunphy  ('.  Wallace 50:;.  15,S2 

Dmkce  r.  Cox 084,  1313,  I5(i8 

"       V.  Flint 141,  235 

Duvar  i\  Biirkner 335,  031 

Dwyei'  i\  ( ia.sper 043 

Eagar  i\  Carey 58,  200,  1417 

Kastern  Development  Co.  ti.  McKay    1051,  1433 

Eaton  r.  Camphell 108 

Eaton  c.  Rone 07,  1004 

"      and  Stewart,  Reference  between.  In  re  OS, 

7()5 
"      ('.  Wcatherbe. . .  .,523,  0.37,  007,  000,  lOfiO, 

1503 

"      V.  Wright 34(),  .520 

Eaves  v.  1  )arling 303,  1 423 

Eoonomy,  The 018,  072,  1127,  13,50 

Edith  Wier,  The 1272 

l'',isenhauer  (•.  Frov.  AVasli.  Ins.  Co 740 

Kldorado  Union  .Store  Co.,  In  re 7()2,  1 100, 

1332 

Elizabeth,  The 1 2(i5 

Klliott  V.   Ladd 20,  384,  018,  0.50 

"       r.  .McDonald   ,300,  1004 

v.  Smith   028,  1.544 

Ellis  V.  Cohinial  Market  Co....  481,  1072,  1.505 

Ells  V.  Black 438,  473,  1000 

"    v.  Ells 570,  787,  835,  1370,  1387 

E^mbree  u.  1  )i.xon 1587 

"     V.   Nodes  ..  404,  1030,  10.57,  1,501,  15,53 

"     V.  Wood 423,  030,  030,  902,  1530 

Knmia,  Tlie  12S0 

Ennnes  v.  Taylor 1003 

Kngley  v.  Mc'llreith 831,  021 

Ernst  V  Waterman 493,  1018 

Esson  ('.  ( 'anipliell 223 

"      V.  Maylierry 204,  0(18,  1242,  1540 

"      c.  Wood 546,  017 

Etter  V.  Copp 52,  .531,  535,  93(j 

Eimiee,  The 1127 

Kuphemia.  The 1124 

Eureka  Woollen  .Mills  Co.  v.  Moss 85,  045 

Evans  y.  City  of  Halifax 517,  620,  1003 

"      V.  Foster 92,  219,  683,  10(75,  1604 

"      Estate  of.In  re,  Exparte  Falconer  6ti5,  1323 

"      v.  Ross 420,  910,  1089,  1 1 90 

"      V.  Stadacona  Ins.  Co 098 


INDEX. 


1G69 


COMMN. 

Kvoiis  r.  City  of  Miilifax (Wd,  irt'Ki,  ltil)4 

Kwiiil  r.  Mci'iliiiiits'  Mar.  Ins.  Co 714 

Kxi'lian^'i!  Hank  c.  lllcllicn \m,  I  IS  I 

"  "     /•.  ISrowii      1,")S,  2IS,  I02!(,  1.">()S, 

l.-.4:t 

Kx|K'<litinii,  'I'lic W'M 

KxpivsH,  Tlic 1172,  1  I'j;},  12(14,  l.-.4,S 


Fader  r.  .Smith (HIS,  I-J4-J 


COM' MM, 

KrasiT  r.  .McAitliur Km,  1(194,  1482,  \rm 

/'.  Mci'aiiiiif,'!' s:w 

c.  MrLcoil L';!,  ;U!),  MTC,  i4;w 

c.  Morrow I'J,  i:t(i4 

"        ami  I'aini,  In  re   1(11,440.  1047.  KUM,  l.-.III 

c.  Salii'r      .Tiit,  I'JIS,  KKK) 

"        r.  Town  of  New  (!lasj,'o\v    l.'(|,'_'!tS 

"       /•■    rni.p.r    «•_>,  (U.-),  1102 

"        /•.  Wallace r>\-2,  S'J.-.,  Il'l-J 

l''re(leriek  .\uj,'Us1uh,  'I'lie I  I'-'S 

I'VirUanks  c.  Creijiliton  .     '.)4!t,  KHii),  l.'is!*,  l.i.'U    Kieeman  /•.  .Mien 4S» 

c.  Ilartshorne 107;-),  l.Vi'JJ        "         r.  1  larriiij,'ton 1  UKI,  1.S40,  1447 

c.  Kulin .-)•_>:!,  1. 'ISO  !        "         c.  Moran 1041 

r.  Holes ;W(1,  47t'>,  1447  ;        "         )■.  Morion l.'Wd,  i;w7,  l.^W 

"  r.  Union  Mar.  Ins.  Co 71;".,  !)'.i7  !  Fremli  ,■.  Wallace 017,  IMt.') 

I'Vlooiiei'  r.  .Sawyei' l.-.'i,  .■)(•.(»,  (!«,'!.  !I4(!,  '  Friends"  .Adventure,  Tlie.    1)15,  1  I.SO,  KlOl.  l.'?47, 

i.^sH,  i,M»;i<  i;f.')4,  1  ;(.■).'>,  i;t.")() 

Fame,  The !»!.">,  1  i;!l,  i;i,'i;i,  I. "MS  |  l.'rost  r.  Mrennan 'J'Jl',  KKW 

Fanny  and  tliu  l'I<(iif,'hlMiv    1  l.'U  '  Fnllertoii  i:  llrumlij^'e    448,  i'i^)ti 

Farrell  r.  .McLaren '. :i47,  fi.'U,  8(;2  |        "  c.  ( 'liai.nian 'il'O,  iU^ 

Fawson  c.  Noonan .S('>0,  !)7!t         "  r.  Ililiiison    518,  907 


Felch  r.  Ilitchie L'.W,  ;{.•{() 

Fenerty  r.  Comity  of  Halifax 13'_',  1  l.V!, 


Fiilmoro  r.  Voiing  l'-23 

l''urieiisu.  La 1 1 2f) 

181)8  I  Furlong  r.  Cooper 1091 

Fergii.><oii  i\  Uydi! 1  ."iii7  ! 

"         r.  In'man !)!).")  I  (!allai;her  ,:  Tavlor 746 

Fielding  r.  Aekerly 44!),  144.'i  {  ( lallilnw  ,■.  Peterson    279,  .'{21,  791,  816 

"       r.  Moll 807  I  ( lamniell,  F.state  of.  In  re 1629 

l'"isli  r.  l''ra.sor ]()'X^,  ITi.^S  |  (lannnon  c.  .lodrey 445,  476 

Fisher  r.  Anderson KL'Ci  ;  ( lardner  r.  Home  &  Col.  Ass.  Co 094 

•'      c.  Archiliald 20-_',  .■..'!(;  "         r.  Ilorne 1610 

"      r.  Hishop 144,  234,  1 17(i,  1491  1         "        r.  I'arr 755,  818,  1418,  1488 

Fiteh  r.  Cnrrie S91),  i;"iS5  '  ( larhatt  r.  ( Jooseley 2)i2,  159(i 

Fit/ranilolpli  r.  .Slianly l.-.O.  KM,  .")2()  '  Carland  r.  Curry 9S8,  l.')52 

Fleiger  r.  Taylor .5(10,  7'50,  771,  107(1    (larvie  ,:  I'eliny    999 

Fleming  r.  Hill (j.'J.'i,  8."i9  i  ( iaslonguay  r.  .Soveieign  Fiii^  Ins.  (V).    702,  1009 

(••West 514  I  (;ates  r.  Diividson 5.54,944,1564 

Fletcher  /•.  Cliisliolm CO,  .'{()(i  i  (lavaza  r.  I'.lack 175,  251,  5,5(i,  1251,  1.504 

Flight,  The I  I2(i,  1 2(iti  |  ( iava/.a  >:  Neily 2:12,  1082 

l''lora,  The    801,  127.">,  1286  i  (ieiioral  Mining  .\ss"n  r.  X'ictoria  Coal  Mining 

Fly,  The 1 124  I  Co 963,  1074 

Fo'ote  L\   Foote 1621  '  (ienoa.  The 1268 

Ford  r.  F.iown .S4,  1004  |  ( ieoige.  The 972 

"      V.  Miles (;7()    (ierroir  r,  Di.kson   1  109 

Forrest  v.  Almnn 672,  951  '  ( lesner  r.  Halifax  (ias  Co 605,  868,  1.582 

"      r.  Miiir 141,  (!7I  i  ( iil.son  c.  Kiley :!4,  1006,  1467 

Forsytll  r.  JJell   51,S,  1221     Cidney  r.  Titiis 1-57 

V.  Forsyth 202,  ;i9.S,   l.5(;S    ( lillis  V.  Camiiliell.  .  .47,  .^'82,  4.S2,  .'=:29,  543,  9.57, 

"        ?J.  Critliii 5S5,  S4(i,    1.5.54  i  1046,1595 

"        V.  Laurence 21 ! ,    1019,   1,5:{1  i      "     c.  Town  of  I'icton     372,1417 

"        /'.  Sutherland 449  |      "     r.  Trustees  of  School  .Seoti<m  9^ 998 

V.  Symoiids 8.5,    17:?,    10S2    ( ;ilm<)ie  i:  1  )ewar '.. .525,  637 

Foster  IK  Chamliers 91  i  Ciljiiii  r.  SawycM- 042,  I5'S2 

"      V.  Foster 494  i  (iisl.orne  r.  ciipc  Breton  Co  (•.55,797,  1062,  1093 

"      V.  Fowler . .  156,  1,57,  4.55,  55.'S,  938,  1.595,  \  ( iladiator.  The 1200 

1601  I  (ilalwin  r.  Cunimings 8;i,  1070 

"      V.  Lamie 879,  9.31,  1049,  1.50.^,  1566    ( [odet  r.  LeI'.lane 381,  977 

"      V.  R.xmie ;tO,  (;()7,   132.T  ,  (J(.dkiii  r.  I'.eech     585,  677,  1009,  1315 

Fowlo  V  Smith 424,  9.T2    ( Jold  MJTiing  -Areas,  Wavcrley,  In  re    870 

Fowler  V.  Hordeii   242,  1281  ;  (iordoii  r  (iordon 1296,  1:150.  13(i7 

"       V.  FMerkin    149  i  (lough  r   Morton     576,  809,  1.396 

Foyle  V.  Hingham 983    (Umld  r.  Could 803 

Friiser  v.  Adams 671,  896  |      "      v.  MeCregor. .  .43.3,  .529,  908,  1175,  1489, 

"      w.  Bruce    240,  96.5,  1(J72,  1192,  1506  1513 

'•      V.  Cameron  2(i;?,  940  :  (iourley  i:  Carter 1001,  1500 

"      V.  Fraser   778,  1074  |  (iovernors  Kings  College  v.  McDonald 371, 

"      w.  H.  &  C.  B.  R'y  Co KJS  I  607,823 

"      Simon,  In  re  ...  .82,  615,  755,  800,  1419,  ;  (iow  i:  Allen    1293 

1486,  '487    (iraluim  '•.  Bell 1.344 

"      V.  .Jenkins 120,  .562,  836,  1495,  1540  |        "       r.  Bonk .551 ,  780 

"      V.  Kirk 263,  399  "       v.  Chiaholm 1.55,  443 


1654 


INDEX. 


finiham  v.  Onilmin   103,  108,  lilli'.  I  IO(i 

"      71.  I.ii|.iiiic    7<l,  Mil 

"       unci  McKny,  In  vo '.'(Ill,  (is.".,  !IS(( 

"       7'.  Miinii^'li'un i:i(i,  l-_':t!l 

Grant  t.  Cit'clinan ilT'.l 

"      Kstiiti^  of.  In  re    1,".  I,  (i(!l.  (i(i."i 

"      T.  Hull 1(14 

"      71.  .Idhnsdn .'I.VJ,  .")"- 

"      V.  IVnUiction   Ins.  Co •_>.">,  illi.'),  l.'CtS 

"      V.  HdlKirtson.-.'H,  rm,  ll!l."),  li'sJ,  i;{(17, 

I17(» 

"      71,  Siinjisfin Ki'J,  .Vil 

"      7',  Town  of  N(.'W  (llusij;o\v   ."t"- 

"      r^  WhcuitT  ..      .    .... (is.-.,  S!l(i,  1(177 

firiiy  7'.  MuKcfn ;t!l.-),  7Sl,  Kill,".,  1  MMI 

"    V.  .Stt'd  ("<>.  of  ("iiniulii  .  ,47,  ."UO,  ;iKi,  404, 

.'.,■.(1,  sr.!!,  !i;!(i,  |(l.->7 

"     V.  Whitman    '.'(I.'},  •.mi,  'M),  I •-':(•_' 

Greon  v.  Hai'o   !l(i.S 

(irounticM  v.  Y(.ike     ()7.'{ 

Gregory  r.  Ciiii.  Iniprovom't  Co.  (i.').S,  lOOD,  1  !.■)') 
r.  H.  fi  C.  li.  Il'v  .t  Colli  Co.  .  .3;i!t,  7(>(), 
102(i,  l(»95,  1(199,  11, -)0,  i;ill,  l,-)0'_',  15(1(1 

Griffin  r.  Taylor    CiVl 

Grindluy  r.  hlakie 454,  7'S5,  1180,  MiH 

Grotto  r.  Fari.sh    lO.Sl,  1500 

Guililfonl  r.  Anj.;lo-Frenoh  S.S.  Co..Sii9,  7,5S.lJ7(i 

Gunn  r.  Vox 122,  42;t,  .542,  775,  'M5,  1 171 

Guatava,  TIhi    ll.Tl 

Guy.sl.oro,   Miniicii.ality  of,  1:  Munii'i|iality 

of  .St.  .Mary's .•i7C.,  1  iri2 

Hailly  r.  .Shornian .'iSS,  477,  1(102 

Hagarty  v.  Vyym      (i20,  (12(1,  l.-),-)l,  KJOl 

Halil.urton  c.  1  )u\V(.lfu 141 

"  r.  iralil.mlon UUtl 

Halifax  Banking  Co.  r.  ( iillis 4.->,  208,  '.)28 

'♦  "  r.  Doni.  .Salvai,'c,  Xc,  Co., 

.-.7:{,  (i74, 790,  i:{;)2 

"  "  /•.  W.irrall   14..V_',2.">S,  874, 

()il(i,  1U3S,  110,'),  I.-.I7 

Halifax,  City  of,  )•.  IVntloy I  l!l 

r.  Mower 129,  (117,  1408 

"  "         ».  I!r(.\vn..(i28,  814,  987,  140.-,, 

U.'iO 

"  "         ?'.  City  K'y  Co 028,  a,'..') 

"  "        v.  Cliisi'n   (518,  1404,  l.'i47 

"  "         I'.  Cinniingliain (119,  1.S22, 

1409,  I4(i0 

)),  Kdw.mls o;iO,  1249 

"  "         c.  Hartlanil 297 

'«  "         v.  Konny   ....  140,  (.18,  1200, 

1407 
"  "  r.  Lisikc'. . .  .  170,  249,  292,  015 

'•.  MoLcarn    018,  |;W9 

"  "         1:  N.  S.  KkotricTel.  ("<.., 

017,  0.-)7 

"  "         r.  O'Connor  . .  .('.19,  SI.'.,  1400, 

1404,  1405,  1409,  1410, 

1412,  1429 

r.  T'ortor noO 

1:  Romans.  .171,  391,  54??,  022, 

028 

"  "         r.  .Scoton     629,  1248 

"  "        and  Sueton,  In  re    47,018, 

1083,  1410 

"  "         Vilwrt     309 

Walker  . . .  .377,  623,  027,  1604 

"  "         Western  Ass.  Co 207,  62(>, 

1431 

"      Street  R'y  Co.  v.  Queen Ill,  1103 

"      Yacht  Club,  In  re 315,  758,  1424 


rni,"MN. 

Hall  r.  Cariy 457 

ll.illil.iiiloiiV.  .Molh.y 833,  967 

llalliday  r.  Dcianry    1030 

Hamilton  i\  .Anglo- iMcni'ii  .S.  S.  C( 'Mt\ 

i\  IJrown    Or.2,  809,  1O04 

('.  Ilan.illon 980 

r.  .\ortlui|. (151,  1003 

(..  I'i.kK's ^95,  159(1 

llincock  ,■. 'I'oun  of  Dartmouth.  .  314,  (131,  877 

llannon  r.  NLL-an 1001,    12.'.^,  1.-.70 

Happy  Couple 1  Hi,    1123.  1 12.-) 

Haidy  r.  Fairbanks. .  307,  5r)3,  1110,  1228,  ir,S9, 

l.-.OO,  KiOO 

r.  Smith -)4K,  lOSO,  1 172 

Hare  r.  .Murphy .'18,-),  784,  1171 

Harrington  i:  HvynnUh  3.'l.'i,  1112 

r.  Witter  214,081,  687,  1009,  1022, 
131,5,  1.328 

Harris  r.  l''ailer       32,  .384,  ir.OS 

"     1:  M.Cormiek 107 

"      V.  MeKen/ie   806 

"     ,..  Shetlield 178,  227,  920 

"     ,..  NVallaee .509,  702,  1.508 

•'      ,:  Wier 824 

Harrison  r.  Harrison  471,  610,  ir.l7,  15,50,  1603 

r.  Hilton .392 

V.  Smith .577,  827,  833,  9.58,  1067 

Hart  r.  .McCnire    888 

"     ■;■.  I'ryor 171,804,  1114 

"     ;•.  'I'roop     179,008,  1222, 1'lSO 

"     1:  Western  Un.  Tel.  Co r)42,  754, 

1005,  1511 

Hartle  1:  llart'.e 12 

llaitman.  In  re 4()ri,  (t03 

Han.shoine  r.  Wilkins   427,  510,  528,  1013,  1014 

Harvey  r.  Cotter 1313,  1.549 

"    '    r.  I'ielon  I'.ank .3.58,  1213 

Harvie  r.  MeKay ,506 

"       r.  Wyhle 073 

Hately,  In  re .50.5,  1 1.33,  1494,  1513 

Hawes  1:  Hart  . .  .  .298,  3(M),  310,  798,  819,  1.322 

Haw  kins  -'.  IJaker 1601 

llayden  ?'.  .MeNutt 74,  760,  1092,  1.5.33 

Haydon  ;;'.  Dunn 97 

Hazell  V.  Dyas 2.57,  .5.34,  5.50,  1026,  15(M) 

Head  r.  I'utnam 15.52 

Heekman  ?'.  Zwiekei- 197 

Medley,  In  re .59,  800,  1.521,  1.5.34 

Hell'ernan,  Estate  of.  In  re .390.  7(i3,  1 1.35 

z:  Laey 1099 

Heindall,  The    1292 

Hendei'son  v.  Conu'au 4.30,  880 

Hendry  v.  City  of  Halifa.x 022 

"        P.  .Suott 8.38 

Hennessey  v.  New  York  Mutual  Mar.  Ins. 


Co . 


4-J 


■•18 


Henry,  The   1 127 

V.   McXeil 474 

Herkins  v.  I'rovineial  Ass.  (V> 097 

Herkimer,  The 984,  1122,  1131,  13.57,  1.3.58 

Herman,  The 1285 

Ludwig,  The 1295 

Hil.banl  v.  Tupper .501,  .505,  .506 

Hibberts,  The  1 132 

Higgins  V.  MeLacliLan 893 

Hill  V.  Archbold    .591 ,  940,  1008 

"   V.  Culman  215,  1005 

"   V.  Fraser 348 

"   V.  Goodall 190,  1364 

"   V.  MeLeod 196,  201,  ,349,  .590,  1229 

Hiram,  The 1128,  1132,  13-57 


INDEX. 


1655 


rOM'MN, 

Hin-kiu7'.  Kiilifiix  it  ('.  I!.  Il'yCi..  SS,  I.T.,  Il(li> 

Ifiij^Mii  7'.  Ilci'ian 447 

lid;,',!,'  -■-  Sli.a.l 4;)S,  4M-.',  IIKI'J 

lloldswdilli  ('.  ItiiMscll 4!)S,  I  i:tl) 

IfdUiiiKl  r.   I!..vvtr I-'O,  11147,  lOtll 

lloliiiim,  1>.  r.uViy,  III  i(!   3(14,  Mid 

(lolni.'s  r.  hiivisiiii -.MH,  '.IS'),  ll'-.'S 

lldiiisliy  r.  .h.hiistoiic ;1IH,  n'X),  iO.VJ,   II  I  I, 

|-.';I0,    I4(i7 

lloilcm  r.  'I'liliiii .TiO,  !W7 

lliKi>itiil  foi'  liisiinc.  III  ri H'J" 

llossock  r.  Xciily rm,  1  MM 

Ifowiird  c.   Liiiicasliiio  Iiim,  ('o    7'H,7tt7, 

7!».S,  !»4r»,  1II4« 

lldwc,  Kstiitc  (if,  111  10 IMS 

IliiM.'y  r.  llMiik I-'.S,  l<.)l,  Id.-il 

Hiit'siis  r.  Lyiiils 7,'< 

V.  L'ydiis 74,  7S4,  7!l!»,  HT.I 

HiiKliaii  r.  Mel  nlhiiii '-H.S,  !>!|4 

Hiiiiiplircy  i:  .lnucs KliKi 

"  r.  Ldiiduii  i*c  Liiii.  Ins.  Co 7<M 

Fruiit  I.  Ifiuliiw 117 

"     r.  Sdiilc "• 

HiMitir  r.   Mci)ciliiil(l 4!):. 

,■.   I'.n|.lc's  IJaiik |S.»,  (Ul,  Hil.'> 

"        r.  ItiiiiiK^   •">7">.  It. '14,  l.'i.'i.'J 

Hutchiii»(()ii  /•.  Dill     •-'!•-',  7.".  1.  I4.-.!I 

•»  III  10 :(«;{,  ()7:{,  (!77 

•'  r.  William !»10,  |0|S,  ir.li.-y 

Ifiilt  i:  SiitliiMliuiil "J'-H,  ti77 


Mil  liaitnii,  Till! I-'S!» 

liii,'Icli.4(l  '•.  Moikol llV. 

Jiijilis  r.  .MU'ii 'JlKi,  .'>4(),  '.m 

"      c.  (iiiciiwdiiil 10'24,  ll!)(),  I.")(i5 

"      r.  Morris (Wl,  1411 

Irish  r.  I'littiior :!.")!,  (U!»,  SC.3 

Irviiio  r.   S.  S.  Murine   Ins.  Co 747,  i'-'H 

Ives,  Kstate  of,  In  re,  Kx  [larle  Caiii|il)ell.  .2'M), 

7'.I4,  lIo(i 

Jaekson  r.  Cainpliell    25,  I'.'.VJ,  13ri9,  l.^"iO,  138-.' 

"        i:  Miinieipality  of  Cuinljci'laud o5, 

.•il3,  SI 2,  1488 

.Tames  Fraser,  The    '22,  8.")7,  1()S7,  127!) 

.lardine  r.  Itowlev    2US,  224,  544 

.lean  .Aiiilerson,  ■i'h.^ ()!)(),  1277 

.leiikins  u.   Iiossmn       2"4 

"        V.  .Slerlinj,'    325 

"       t».  Tiipper 21 ,  76:i,  1534 

,■.  Way    1147,  I2IS 

.Icnnett  v.  IVii'tniaitre 1045,  1472 

"       V.  Koss    1(».'>7 

"       V.  Siiielair 338,  RHH  429,  Ii2(»,  85? 

.loiinings  v.  Hart     172,  l.'iOf! 

ilennison  v.  Miinicipiility  of  K.  Hants  375,  1248 

Jerusalem,  The 1 1 24 

.Jcykal  V.  X.  S.  (Mass  Co  .    .  .427,  .^2;},  85S,  8fi2 

.T.  H.  Niekei-son,  The 307,  3()8 

•lohanna,  The I  I2fi,  1128 

John,  The 1285 

.Johns  V.  IJarbour    54,  U5,  649,  (i55,  1 101 

Johnson  v.  Arehihald 9."58,  1253 

"        V.  Lithgow   40,  534 

r.  Ross IKlit,  1197 

-Johnston,  (!.  R.,  In  re 558,  fil4,  1102 

"        V.  Johnston 845 

"        i>.  iMathesoii 396,  7ti8,  1186,  16.3" 

"        t).  McLean (•)7,  94,   lO.'iCi 

V.  Parr 823,  1647 


("OMIMN. 

.lolinsK.ii  r.  I  oviit/  73,  2(10,  (!ti3, 780, 1420,  1472 
.liihiistoiie  It.  r.Veiian  .  .  655,  783,  13(12,  143tj.  1437 

.loiies  r.  .Ii.lins 158,  4i'i7 

"      V.  Kinney    t>92,  1300,  1328 

"      I'.  Kinnear  loll 

"      r.   Loeke 95f.,  12Ui 

"      V.  Williams 527,  I5(U; 

■lout  V.  Chinch  Wanleiis,  ete...  54!>,  91(5,    1172 

"     t,.  Davis 488 

"     r.  Mc'Neill  ....778,  11190,  IC07,  1535,  1537 
Kaiuliek  ■.  .All  liiir. .  .225,  400,  1(M»3,  1109,  1424 

"       V,  .Moi  ri-^oii 44,  Si 

Kaiill.aek  r.  Spidle    ._.  ..914 

"  V.  Taylor 773,  893 

KciiiK' V.  Sharp I'><i6 

Kearney  c.  Cieelmaii 480,  495,  1077.  12.33, 

ir,03,  1.394 

(.  Diekson 84,  (1.53,  (iHO,  138(1, 

1432,  I(J(I2 

V.  Kean S2,  327,  1102,  1103 

"         M.  Kearney 1617 

V.  Oakes  .  . .  .3.38,  .''lOS,  (i05,  1154,  1331 

Keating  r.  Kllis 1029,  15.32 

Keefe«.  Mil.(!liliail 207,   854,    148(5 

Keiili  r.  .'viicli'.r  Mar.  Ins.  C( 737 

"      r.  Ciiimingham 17,  784.  1099 

"       ,..  Iladley 10.^0,  15(>6 

"      f.  Intel eolonial  Coal  .Milling  Co.  ..    .924, 

1148 

"      t>.  Treiiiain 1050,  l.'ifJG 

Kelly  v.  Ithodes 12,-),  9.-)3 

Keiiiiedy  7'.  Agrieiilliiral  Ins.  Co ()9(5 

"        Kstate  of,  In  re     1141 

Kenny  t.  Chisholm 2.-m,  S<K) 

"      ?'.  '  ity  of  Halifax 140,  12(iO,  134S 

"      ,  .  Halifax  Mar.  Ins.  C( 735 

"      1,1  re   90,  IKi,  811,  1.395 

"      T.  Union  Mar.  Ins.  Co 720 

Kerr  r:  I  )avison 4.59 

"    T.  .MeLellaii 505,  1 1.32 

"    V.  X.dson 1049 

Keys  7'.  I'olloek 842 

Kid<l  7'.  Henderson   15(J7 

Kieli^y  I'.  Thompson 4(i5 

King  7'.  Mnnieiiiality  of  Kings.. .374,  804,  1540, 

1(505 

"    V.  Trustees,  &c.,  Hail<leek 1.5(59 

Kingley  7'.  Smiili   .5(51 

Kings  Count V  Kleetion  Case,  In  re     ...5(t3,  .50(5 

Kinnear  7'.  liarri.son 481,  .591,  1(K»7 

7'.  .Silver   517,  888 

Kinney  v.  Dndman.  .91,  2(56,  42(J,  522,  555,  «(!(!, 

1098,  12.55,  1313 

"       I,.  Jones  ()91 ,  1299,  132(5 

r.  Ryerson    (584,  773 

Kitehin  r.  .M'iDonald 53,  942,  1082 

Knaiit  i>.  Sponagle (578,  1315 

Kiiodel  V.  I5est   3,  31(5,  807 

Kiiolan  r.  Dunn    430,  886 

Knowlan  v.  Dunn .397 

Koeh  «.  Danphineu 1391,  1605 

LiuU,  I'orter  &  (^o.,  In  re !167,  982,  1324 

Ladds  V.  Klliott    8,30,  1 192 

Laidlaw  r.  Taylor 51,  68,  .577,  828 

Lake  v.  Lawsoii 1025 

Landers  v.  Woodworth 127 

Landry  r.  Jones 1049,  15(57 

Lane  v.  Dorsay 1 188 

"    V.  McDonald 1192 


1650 


INDEX. 


rol.rMN. 


I 


COM^MV. 


I-iiiiK   I'.  l''(.iviM.ni .'!(»,  n|(5,  (18S,  i;U-',  i:il(i    Mcltrid.' p.  Wnnl    L>:i2,  14:11 

Liii.Kill.'  r.  I L'illr 4.''2,  l^x-'A    M-CiIm.  y,  M.K;,y    7'.',  lOlU 

Liinlii' f.  I''iiic|iiliiii- ■_'■_'    Mi('ipiiiiiuk  ('.  l)iiiiiisi)ii B30,  I I7B.  li'dX 

Latf  r.   Mrl,..aii .V.S.  CCd     MrCiillyc.   Hinnliill    7J),  Si  I ,  lMi4.  14  |H 

Liwlor,  Ksial.'iif,  lull!  "lOlt,  (lin,  (MT,  T'.'O.  III!-'  "         c,  I  Hair   ITifll 

r.  Mmutui.l    ;t;i7,  l'_Ms  '•         I-.  DyU.'iimii -17,  O'.'f^.  111!).' 

liiiwri'iicc  r.  McDoiial.l  ...7t!."',  i(»!l<»,  i;in.-.,  1  i: i'.  M'lKay    NH 

La\vs..ii  ,.  I'.(ll..iii   in,  mil     MiCiinly  v.  Ilarviy lOiH 

r.  City  .pf  Halifax I(i:i(i  "  r.  MiDaiii.'l , 6''<! 

r.  ('(.I'licit SU,  IIMI  "  I'.  Miinlocli     7^1,  Id'Hi 

>:  SaltiT Un,  ;il',l,  lls:t    M.Daiiiri  i<.  McMillan WJ 

0.  'I'oKiii W2  M.Doiial.l,  AlexaiuliT,  Kslalc  c.f,  In  ic    Ht,  HIK), 


I'.  Wliiliiiaii     ISli,  (i()6 

LiiytDii  (t.  McLean !tll.  '>\H 

('.  Sniitli    .'117,  11  lit 

Leake  \   Laiillaw  (hiMilvv'tilM)  In  I'e     S4(! 

Leaiy  i\  Sauniieis lOOS,  l.")ii.T,  1(107 

l^eliianc  »'.  ( 'uller 1  5."i7 

c,  Mcl!ae so:.,  l.'i'Cii 

LeCain  r.  Ilostennan. .  .487.  7!t'.l,  S'J'.t,  lUMl,  !I7(;,  I 
!»77,  lo;i7,  I07!l,  l.'lll,  VMU)  \ 

i\  Wielanil .■*J8  j 

Leiih  V.  Tii>U I'J.'t,  1278  . 

Lennox,  In  re 1  l.'ll  ; 

Len.iir  r.  Ititcliic.  .HO,  IIM , '-'(W,  ()i;i,  IlKi,  i;t()4  ! 

"         M.Wallace 878 

Leonard  ,:  (•o;.'swell il.-.d,   I0'.''>,  IHI7,  I44!l! 

Leslie  r.    Tavli'r 7l.'."> 

Letleney  r. 'Dillon .'117,   I  l'.''.',  1481 

Levatte  r,  Saltei' ;i;i-J,   ll.'(;7  1 

Levin  V.  Ilrianci H.".,  I4l'(1,  |;".||  I 

Levy  r.  H.  \  ( '.   I!.  R'y  Si  ("oiil  Co !I(S8  | 

Lew cr  V.   .Mc(  •ullo''li    487,  S-.'l,  l.-.C-J  j 

Lewis  r.   Denton    -j;!!!.  !lll,   |.".7.'i  I 

Lindsay  c.  ( 'ii;;,'liton    ill.'l,   IV.Mt,   |,'.!)S^ 

'.  Zwickcr I7'-',  -<>:i,  '■'<'>i,  .'liitl,  (!("». 

I •-'.•!((,  I •.';!•.' 
Lii|nor  License,  Co.  of   ILdil'ax  ...•!(I8,  7-ii,  l4S(i  | 

Litllc.loc  (IM  ,asc) ll'J7,   ll:;(),  1.V.I7  i 

"  {•-■nd  case) '.'S,  I  Il'7  j 

Liverpool,  liank  of.  In  re. Kl.S.'l  I 

LiviMi,'ston  c.  School  'I'mrtecs,  lioulardarie  l'.i4l  | 

Lockiiart  V.  Waisoii     .'■,;!;!,  l.H!»! 

I knian  Stri'cl.  lv\lensioii  of.  In  re     I04.">,  I4(t(! 

Lol;,iii  (».  ( 'nin,   I'nion  .\ss.  Co (i!(7 

Lon;;lcy  ('.   N'ortliern  Ins.  Co  ..4H,  '(»\.  •(•_'S,  I.VM  j 
Lonj,'vvortli  ('.  Mcrclianis'  Hank  . .  .."iS,"),  (17."),  ^S.")  I 

Loonier  V.  Starr ;i:>l,  1-J(i7  I 

Lord  ('.  ( irant    7-- 

Lonlly  ('    lieckwith '.I7!»  ; 

"      «.  Kiely    Ill.'l,  114 


r)(;7, 7'.ir>,  ii-'w.  I4!ii.  i(;;i;i 

C.  D.,  Kstate  of.  In  re..M),  .'i'lO,  6114, 

r.tui,  7i»r>,  1141 

r.  Hlois 4;i!»,  450,  .'•.17,  J'lH,  1105 

r.    Hiodie S4'.»,  lo'Jil 

r,  Cliisliolin     547 

r.  Clarke ....  7.'".,  42.',  fi(12,  WW,  1022, 

loits,  ii!>^,  L'.yo 

i\  |)<.nll riS7,  731 

r.  Kerynson 237,542,77!),  lO-<ti, 

1172,  I4!)8 

I'.  I''raHer 4,  I34!t,  I3(;2,  l4.'!8 

n.  (lelileri    ...40.5,  .'.63,  ,5!t4,  81.(1,  IKS  I 

V.  Korlosll    762,  llllli 

IV  i^ake  .Major  Cold  .Miniiij;  Co.  1((.".3 

V.  Lane ^....llil.'i 

V.    Lawrence    783,  1 0!I7 

I'.  .Mainiainl 104 

V.  McCnisli  . .  .(!2,  2(17,  275,  .185,  ;iH7, 

8i:i.  132!»,  l.53!t 

r.  .McDonald    ..      2(11,  .'133,  .'141,  .TS!), 

4,s;!,  48S,  4!I0,  53(1,  7(17.  ^82, 

11)0*,  lO'.M,  12211,  1,V.I2 

r.  McDoii;,'all    (I.',  1045 

,:   .\lc!\eli/ie     .  . .  IKS,  7.\'t,  Hl7;l,   l.".:i(i, 

I6;i7,  1547 

1.  .McKinnon   1(132 

c.  .Mc.Mastcr 44(;,  1174 

r.   Mcr.   Mar.   Ins.  Co.    ,'1117,  S.'ll ,  ll.'iS, 

lO.Vt 

)..  Mills 820,  1410 

r.  .N'ilclicll    770,   1071,  KliH 

V.  Neville 217,   1027,  l!i4.-. 

,..  Power (134,  978,   1215 

r.  I'.oiian 2!I7,  .'iOl!,  812,  1041, 

l.'l.VJ 

i:  Royal  Ins.  Co ...1110 

V.  St i'lskcy 170,  1075,  157i'> 

V.  SiUherland    15.")(; 

r.  Vaux 72 


V.  .MeKiie    il.VJ 

"      V.  YeoniaiiH (JHIi,  8!l(i  M.^Doiiell  r.  Mc.Master 447,1176 

Lt.uisl.urg  Land  Co.  v.  Tntty 48.".,  (Kiil,  77-'.,    .McDonnell  ?i.  .M(  Master  ...173,  4^5,  1047,  1180 

1177,  I4!I0    McDoii^al  1'.  Ilinslielw(.o(l 17 

r.ownds  V.  Rol.insoii    ii;{3,  !»'J2    McDongall  v.  ( icl.lert ;!il2,  10!)5 

Lynch  v.  O'lirieii ;i!ll  i  '•  v.  (iritliii  557,  lOf.O 

"       V.  Riiif,' 423,  .-.4.".,  !H;o,  |2-_'!»  "  v.  Hawes 1,")83 

Lynds  v.  Umr  .'litS,  7!I2,  80.'),  910,  948,  !t.">2,  1084  i  "  v.  .McDonald 38!).  39."),  91!»,  1098 

Lyoiiv.  Morton 9(i3,  l.")92    McKaclneii,  Donahl,  In  re 61(1,815 

Lyons  V.  Donovan 10.">    McKwiin  v.  Outiain . .  .fil,  1421 

Mi.'Karlanc  v.  Kliim     ()(I3,  9.")4 


MacAgy  v.  ConiK)rs    12 

Miickinliiy  v.  City  of  Halifax (12(1,  1247 

Mackintosh  v.  Alinois 689,  979,  1324 

MiicKiiy  V.  .McDonald .lOi') 

MeAgy  v.  Cray .102,  130(1,  1445 

McAllister  v.  Forsyth 145,  584 

McAhnont  v.  Boinlrot 389 

McArthur  v.  McGilvray 466,  914 


V.  .Smith 168,  396,  781 ,  118;") 

McFatridgc  v.  Carvill 1 1 10,  1 166 

V.  Hunter..  23,  221,  842,  876,  1373 

MeOee  v.  Perkins 177,  1019,  1 170 

McCibbon  v.  Imperial  Fire  Ins.  Co.       586,  694, 

706 

McCillivary  «.  Melsaac £98,  1436,  1548 

McOillivray  v.  McDonald 813 

McGilvray'w.  Gibbons 552,  1254 


INDEX. 


1657 


coi.rMN. 

Mi'( !i. Willi  f.  Iliildi'ii (i'J,  7.'>.''i 

i\  MiMklcr  ...    !i;V.' 

Mo(Jriin<if  r.  McAiclii'i' "•''<•,  \W 

"        V.  I'lith-n.iii .'tai.  r>!»i,  s-Ji.  1 1'.iii. 

l'.'.'l!».  IL'44,  i;t.Vt,  i;i,-,7.  i!j(;;i.  i;)!)-*, 
1110.  I  HI,  Ut2,  Ul!t 

Mi'Flri'itli  1'.  Doull . . .  I.")l ,  s.-.tl 

Mi'liilosli  I).  ( '(iinmissiKiicrM  of  ( 'iiiii  t  IIhiini", 

V.  Ciillfn   :iiU,  4-'(l 

"         V.  McL.'chI    ...  •.'{)(),  2-'-.'.  .ISli, .-)!»(!.  I •_'■-'."> 

Mi'Fsiiiic  r.  McL.mmI |():)7,   14!»;«,  HIIL' 

McKuy  V  .Mliiii  I(»:',  l!^H    M,.\i,.l 

c  Aiiiiancl 144'.'.  Kl.'l.'- 

"       v.  |{i.iin.li :,'>.),  VJW,  IL'.'.T,  l.'iTll 

"       t'.  Ciniplioll   B'.tl,  !MI."> 

"       ".  ('iiiiiiiiiii),'M     (S.'i7 

"       I).  (!l;ic(   l!iy  Miiiiiij,' Co .'t.V.,  .'185 

"       I',  fi.imiltoii     lolli,  |();)4 

"       Kstiitcof,  III  re...  8.3.'),  li;t',l,  I44.''>,  I  •V.>7 
"       V.  M.'Kiiy  .'lO,  77,:W:i,H)!t,SH,'>,  l-i;W,  144.") 

"       V.  MooK' '244,  ;{.-).•«,  IIIH 

"       r.  .Sntlifiliiiiil lifiH 

"       V.  Wooilill SOO,  i)3."),  I -i!»4,  l.V.Kl 

Mi'Kui'ii  V.  .McDoiij^all 84L' 

"        V.  McKiiy 847.  M>-J 

"        1'.  Naiit* 21(1,  1014 

"         V.  Powell I07;i 

McKiiima  i\  'I'liicey 1 7f!,  'Jl!l,  !i;i(t 

McKunzie  i».  /Ktiiiv  Iii.m.  Co.. 704,  17<',i,  7(>4,  HtIS, 

A.  L.,  line <I4,  OK!,  141)7,  ir.l7 

"         r,  IJlarkiiiore    ri7 

"         ",  Itiddii) |i;t,  •2i;-> 

"         r.  CoiIh'II 7;{(i 

"         I'.  ( lonloii     .Vt't,  .■.HI ,  !I,S4 

"         r.  IFiin i.s   ,")S_',  I'.'K! 

V.  i^iimoiit.  .4:»;j,  .•>.•«),  ii7.'«,  14H!»,  i.")i;{ 
"      n.  r.oiin  ,Ts.") 

"         ('.  .Mil>oiial<l    .'KW.  .V.».'i 

r.  McKay 7.S,  ll.">,  .S07,  l.'t!»4 

lu  McKiii/ii!    . . .  ,-)n,  <»,S.S,  l44-_',  I.Vc' 

"         V.  McLiaii 'Jl'H,  :Uu\ 

"         )'.  OMiiii; 10(il 

"       V.  MoiiiTti^oii ;{(;;(,  ,"i<»i,  I4;{.") 

McKilliijaii,  Kstatc  of,  In  it .S!WI,  I  \X.i 

.MuKiniloii  r.  I'nodii' 444,  4S2,  S47 

"  V.  McDonald 4;{(;,  ."r_'<J,  ."i.SI ,  H.i2 

"  IV  McDoiifiall (i.-.l,  (;,-).S 

V.  McXciU ,-.!,  a")0,  ir)0;{,  i.')!i4 

iMoIiaclilan  r.  Kennedy    lO.'ili 

McLaren  )■.  McNeil   47,  lO.V) 

MeLoiin  r.  Hell    24 1 .  I  r)-.(i 

r.  IJradley IS,  ;t7!».  1(MH» 

p.  Caniier 'JiO, '.'14 

r.  Ifannnn KMil ,  |-2.-)<»,  I  "CI 

"        r.  .lacolts '2m,  l.')(>-2 

V.  M.Isaac (i4."),  1  .'WO 

V.  MuKiiy. . .;«),  81,  118,  4«!),  812,  1 1'JI, 

14'23,  l.MM) 

V.  Watson     .")03,  SH!,  14.'<(> 

Afc Learn  v.  Lytle 780,  103."? 

McLellan  ?■.  IJaldwin 31,  322,  1049  14!)7, 

r.  Butler    223 

r.  Fuhnore 8»2 

"         V.  Ingntliam 535,  952 

V.  McLellan 253,  (531 ,   1494 

McLellttnd  o.  Jennett 96 

McLeod  V.  Campbell 447,  514,  887 

V.  Citizen's  Ins.  Co 695,  701 

"       V  Dunlap 65,  383 


f'Ol.ITMN. 

.Nfefieod  V.  ClllleM 4.11,  474,  .W7,  I4t;.1 

r.  Welsh 49.'» 

M.'MarHteiM  /'.  (lialian ;iS8,  l(H»2 

McMilli.ii  /•.  .McL.'o.l 49H 

M.'.Midl.'ii 
McNal)  r. 

"       ('. 

M(!Nair  v, 

McNeil  r. 

r. 

"        r. 


Keiidii.k s:tl,  159: 

Sawyer 'JUS,  1194 

.Sliorllaiid    777.  109« 

Miiiiro 263.  477 

jicil.in     1070 

Mcintosh 221 

McNeil 499 

Morehouse •_'47,    1182,    KI.'IT 

McNi.l '.'(14,  »;i.'{,  1.-.46 

.Mi^Nultf.  McCalie 20,777,  1017 

V.  .McDonald .'i27,  H61 

M.'l'liail  ».  McKiiiii(;ii 558,1464 

.Mi^l'lii'e  V.  ("anieion 495 

"        t).  Cai'Mian     991 

"        V,  Victoria  <iold  .Miniiin  Co 1'.'24 

.Mcl'liorHon  v.  ( 'iiiueron 2fi3 

V.   McDonald 510,  lO.'iH.  11S7, 

I'JIO,  l-<28 

Mc(i)uarrie  r,  Miiniii])alit  v  "f  i^t   Mary's    ..  37'2, 

■  377,   1013,  14J3,  1602 

McKae  o.  ( 'oriiiier  . .    I<i33 

"      II.  Diiidop 510,  1253 

"      V.  .M(tKa(^ 4.16,  571 

"       0.  W Iward 16,847 

McRitchie  1'.  Morrison 499,  14;U) 

McSwccuey  ?).  Wallace.  .Si,  10(1,  9.'-0,  1(106,  1121 

Mader  I'.  .Innes .•}29,  675,  1  MS 

.Mailer  I'.  Iliil.ley   .')()5,  1573 

MaKliolia,  Tiie I'-'91 

Mahon  v.  ( laimiion    383,  996,  I.IOO 

"       I-  Caiiiioii 480,  '.M)5 

'•      v.  .Mcfully .'551,  4(1.>*,  599,  12:!0 

Miiilliian  i\  ( )verseerM  of  Poor 1041 

Malc.liu.  The     1130 

Male;,'ii  HarreiiH,  In  re S7'J,  l'>-0 

•Mulone  ('.  I)u>,'i;aii 766,   10(17,  1466 

Manning  I).  I'lowiiiau     152,752 

J?.  DiAVolf (W8 

Margaret ,  Th'!    1  '-'95 

Marino,  Tlic 1293 

Marinaud  r   McCieady 521,  769,  1002 

|uis  l)c  Soiiierweles l'-'4,    1121,  12(i4 

hall  r.  Anderson    1191 

"        r.  Municipality  of  .Shclluinio  ....  253, 

.'543,513 

,..  .Stci'lc   397,  431,  f»87,  1023 

Marter,  K.  1!.  K.,  In  re C.'itJ,  W>7,  1408 

'•       r  Prvor I'i.3,8l» 

Martha,  The." 1'294 

Martin  r.  P.arnes   45'2,  888  1360 

"       ,:  Taylor 921,  liiOJ,  l(i07 

Mason  IK  Clianilierlain 172.  1373 

••      V.  Mahar 575,  764,  10117 

'•      ».i.  .Shedd 651 

Masters  r.  Pliinney       ...   76-,  1075,  l.'}96,  l.'>47 

Matheson,  Donald,  In  re 6^0 

r.  McLean 72,809 

Matthias  i\  Pace   .    . .    832 

Maxwell,  Kstato  of.  In  re 1631 

Mayette  r.  Ifuherl 448 

May  hew  v.  Ken l.Vi,  477,  665,  889 

Meagher  v.  Colinan 448 

V.   I'aulin 479,840 

V.  Queen's  Ins.  Co 361,  1806 

Meek  r.  (Jass 363,882 

Meisner  v.  Fanning  . .  ..^7l■),  601),  916,  r24'2,  1337 
Melancon  v.  CQinea,u..  ..1010,  1-297,  1360,  1368 


Man 
Mar, 


1658 


INDEX. 


COH'MN. 

Mrmd,  Lii 1  TJa,  1 1'.'H,  laoJ,  l.'IM 

Mci'cliiuitM'  Itiuik  r,  Di'Wolt'  Ittltl 

"  V.  (;illcM|>i«i ;t|H,  7(!1,  7!tii, 

IKK),  11(17, 1. 'in-.' 

"  V.  S|iiim('y '.'IH 

"  V.  Siiiitli    Il(i;i 

"  V.  Sti'fl  Co.  i(f  Ciiiiailii..!  I,  !H1, 

317,  '>(!•-',  7<II,h:JH,  1070.  I.")|ll,  1517 

V.  Stilling,'. .  I'.Mi,  •.'07,  -Jja,  •J'J'.i, 

OMti 
McrclmiitN'  Miiiine  Iiih.  Co.  ti.  IlniiiHoy  ....  'iU 

McKsciiKtT  r.  I'arkiT '.'81,  8'Jl ,  l.S'JO 

Mt'HHi'ivcy  *.  WiilliK^o \'Jt'2 

Mct/.lur  c.  Ifiiivio 1»,  I4J 

"       V.  .S|i('in'or 'iIV.l 

"        V.  Spike I(;i'.> 

Millur  V.  Liinty 480,  (lOS,  (i|o,   |;i;t,s 

"      V.  I.iiig 17,  ^I'll,  82!»,  1.-.I8 

Millet  V.  Lordly 71.  :is;{ 

AlillH  V.  MuLtiiii    8,  I'J.'i.S,  1570 

'•     V.  Smith.  ..3,  1 18,  .-12.-),  IS^y,  i:)7l,  i;»7-',  H7-' 

Miliior  V.  Ki'..gwoo(l 477 

Millier'H  A|)iitMil,  In  re >^~'2,  I  477 

Mimiit;.  Tlii! (14."),  HKi,  |-J(HI,  Il'7;1 

MiMi'iier  ('.  ( iiiMlon 877 

Mitchfll,  Kstiilo  of,  III  10 (i8!l,  I.SI4 

"        V.  Liiiit/.   U'.Ti,  11(10 

"        V.  lliiymur II,  ."riS 

r.  Tnnilmll :ii.'t.  ',m 

Mitelieson  i:  Dunuaii 3 

Molliitt  V.  KorKUson 147,  •J4'->,  |-J<)!I 

V.  McHituliio 04,  80M,  1 -,27 

Moir  V.  ItiiniHiiy 77,  810 

•'     V.  .Sov(n't'ij{ii  Kini  Iim.  (' . .  ..T.M,  70'J 

Montgomery  r.  Hurt  !)17,  1 1(!7 

In  re .S'.'."),  D'.IO 

Montreal  ct  Km-opcan  Short  Line  K'y 

V.  Sti'wart .  4I!»,  (l.'iO,  ll.'iB 

Moody  V.  .Ktna  Ins.  Co .'1118,  70!»,  !».')!» 

i\  IJank  of  N.  S (Mil,  770 

"         V.  Faulkner !)(;.'{ 

Mooncy  i:  Pio.s.soni .'{'.0 

"        A.,  In  re (17!».  Kf.'.'t 

"        r.  Mcintosh 1  .''."id,  l(;;t7 

;•.  Smyth 487,  I0'.i7 

Moore  V.  Hannan Kt'il,  l.'>.">8 

"       V.  Moore L';i7,  L"Uri,  l.-)(i;i 

"        *'.  I'owley !I7 

Moren  V.  .Shellmrne  Lumlier  Co         (li'iK 

Morgan  i<.  Kiuc         4-0,  157:1 

Morrison  /•.  Kishwick 3118,  UW,  1501,  1.-.77 

V   Kandiek 4;{,  81,  10.\} 

"         V.  Thompson 28(1,  5"J7,  !'55,  1574 

Morse  v.  Chesnult 385 

C.  K.,  In  re 1(19 

"       V.  Hueston 3(10,  4.'J3,  IJ.'M 

"       V.  Ripley     77'2 

Morton  v.  Cainphell 210,  lO.'if! 

"         Estate  of,  In  re 75,  (;(i7,  1043,  1325 

"         I'.  MeLeod     881,IJ(11 

"         u.  I'atillo 7-.'5 

"         V.  .Snow ......    470 

Mosher  v.  Doran .'iOit 

"      V.  Miller 478,  894 

Moss  V.  Eureka  Woollen  Mills  Co 944 

Mott  i;.  Rank  of  N.  S 184 

"    V.Burns 407,  «60,  1247 

"     w.  Feenor Ll.W 

"     w.  Lockhart 872 

Motton  V.  Brennan 44,  (18,  169, 1428 

Mulhall  V.  Barss 527,  934,  l.'JO? 


COLUMN. 

MiillMlly  i:  DilloM 101(1 

MuMifiird  I'.  Miiiiil'oril  712 

.M.MMo  r.  KlIioK 4-'2,  60H,  I52n 

)'.  OvfrscciM  of  I'oor,  Wallace lO.'t.'i 

.Miirdn.h    |Ii';imish.  In  re  will  of 82,  KIM 

V.  ilcll.ini    891,  1518 

V   Di  W.ilf '.'ao 

V.  Kra.sir '.^'O,  5S9 

r.Criinl    548,1171 

V.  lliigheH 5 

/•.  LiiwNon 7'.'3,  891 

(•   I'ittH 843 

r.  WalHh (185 

r.  W.  .'C:  A.  \Vy  Co. . . .  '-'(14,  1 150,  1 1(18 

.MuriH(.n    r.  Itoyd   '..(1.  1'-',  1097,  I2.".(;,  i;i78 

r.  .MuViHon.  . .  .4,  \-M\).  I-'KHI  1H81,  l;l,84, 

i;!81l 

Murphy  i\  Dulhunty 8C,|,   1.'.72 

r.  HouK.  71,1427 

"         /•.  'rrcnholni ...  119,   10(15 

Murray ''.<  iiiMtouguay   2."i2.  1)85 

r.  .MeDciuaid 5.'(i,  '.CIT 

r.  N.  S.  .Mar.  Ins.  (',>.      ... 740 

"       r.  KoHs 1021,  13(14 


Nancy,  The 273,  91(1,  11.M14,  I.'K.d 

\ash"l'.rick  it  Pottery  M'fg  Co.,  In  re .37'^, 

759,  898,  10M7,  1051,  1399 

"      I).  McCartney 4,  (!,  10,  1439 

Naums  r.   .Maskell 2'2(!,  1009 

N'avlor  r.  Bell     ,824 

Xeal  r.  Allan 4.\  918 

•     I'.  Henry 315,  1013 

Ncary  r.  lAiwler 5  1(1,  1 105 

Nelson  V.  Arcliiliald 1.58 

'       r.  Connors .'18.  518,  1 1(17 

"       I'.  Fulton .'195,  781,  1095,  1499 

•'       Estate  of.  In  re (143,  775,  1  i'M 

Neville  r.  ( iarrett 4(H) 

Xewcond)  V,  Sinimiinds 440 

New  Orleans  Packet,  The 4'.'9,  972 

Nictaux  &  Atlantic  K'y  Co,,  In  re 135,  8(((1, 

10(18,  11.53 

Norris  v.  Taylor 749,  10(14,  1441 

North  Am.  Life  Ass.  Vi>.  v.  Cr'aigei 7K( 

Northup  V  .lean 887 

N,  S.  Land  X- Cold  CrnsliingCo.  i\  Uolloug..399 
N.  S,  Salt  ( ;o.  V.  H.  Hi  C.  H.  K'y  it  (^.al  I'o, .    .:W, 

1149 

N.  S,  Tel.  Co.  V.  Am.  Tel.  C( 421,  835 

Nueslra  Senora  del  Carmen 2(1,  91(1,  !.'7I, 

11 '29,  13,55 


Oakes  v.  City  of  Halifax  . . .    82,  106,  170,  1091, 

1496 

"      V  Keating   4(12,  9(18 

•'      V.  Ryerson KIO 

O'Brien  r.  City  of  Halifax 6'24,  9(14,  1.5'29 

V.  Young 104(5 

O'Connor  v.  Com.  Union  Ass,  Co 096,  697 

"        »•.  Condon    305 

V.  Fisher 389,  9(13,  1098 

"         V.  Mer.  Mar.  Ins.  Co ...  741 

"         V.  Royal  Can.  Ins.  Co 1 092 

V.  Wallace •J04,  875 

V.  Weeks   148,  169,  1095 

O'Donnell  V.  Confederation  Life  Ins.  Co... 538, 

668,711,  713,  1614 
"        V.  Honeyman. 118, 1466 


INDEX. 


1650 


(■(II.I'MN, 

O'K.Il  V.    I'.rll 'SM,   II'.U 

(Miiiicl  r.  l!.iliiiiM. Ill' I,  I'JMl) 

(CMiillJii  iiihl  .liiliM^idiir,  III  re Wtd.s.'l'.i,  DO'.' 

I'.  .M, ■Dull, lid    L'!!,  7'-<-,  '.H'lL',   Kl.'ilt, 

(CN'.il  r.  Wills  !t!H,  K'l.'),  1145,  Il(i7 

Oninyr  r.  Mi'Kiiy .    I'.'TS 

OH riii^ iiT.".,  II-.N,  i-j^.;. 

OSiilliviiii.  KmIuU' ipf,  In.  V   .'Tl,  ('.'ft.  I  I  10.  lil'JM 

()"l'c"i|  V.  ]\»n]„v 7'.' 

(f|'(M,l,.  V.  Walliui' lO'l,  7M».  loai,  114.'! 

Oiiiiiuii  I'.  Uo.vif II  Id,  {•.'(111,  ir.'.i'.i 

r.  .^in'illi 7.'l-,  l-'ir> 

•'       »,  Tavlnr     lOjO 

OvcrmioiH  of  I'ihh'  v.  IIinsom ln',i> 

I).  llii'viilNoii  ..  |!»4.  Kilt.'p,  I  im;{ 
"  "  V.  I'i'Vli' m.'i 

"       "        V.  MrKdi/iii   no;'. 

V.  .M.|,,.||iiii |<i;{,  i;i(i-' 

"  "  (('(iriiuiillis)  V,  Ovorscu!/* 

of  i'.M.i((;iiuiviiii)  8ir> 

"  "         (liriilLtiwulcr)  v.  (.'oiiiiiiIm- 

siolHTM  of  l'ooi(  .\lc(l\\ay).    .  .  .  lO.'U,  1  IS.'t 
"  "  (( Ircfiilii'lil)  ('.  OviTuci'i'M 

of  Poor  (doslii'ii)   7!l,  SIO.  !l-J!l,  lOMi;,  !-i(i() 

Ow.Mi  V.  I.yiirli 4.'i4,  -ill*,  779,  1 17s 

"      V.  Oiiiui  Miiluiil  .Mar.  Iii.s.  Co TL'U 

Oxluy  V.  Spcmwalur l;^,  !)>ri,  I.'Un,  I'lii^t 

l'fij.'i^  r.  ( 'iiaiiiliciH . .  —  VfSH,  \:>3,  r,6:i,  .-i;;!,  1587 

I'liiiit,  V.  Mac  Lean 4:!(;,  1027 

J'ui'ker  V.  l'"aiil(aiiUs   -10(1,  X'M 

'-     0.  Kenny (iSCi,  I S^") 

Piii'sons  V.  .loni's •'i).">.  .'(17 

"        V.  .MacLcaii (i,  l."0,  .",1'.',  'u.H,  |.-)(iS 

I'atcli  V.  Pitman 72!l 

Paliiol, 'riii^    4l'.4,  ll.'U 

Pattoiwon  V.  Aivliiliald I()7.S 

V.  Dutliis l-'l-',  7.'il ,  l»8!l,  1."  Ill 

"  V.  .MiPhcTson 477,  4.S0,  S4« 

Patty,  'I'lu^ iH.'^ 

Pay/ant  v.  l*ii.L,'<'li>w lO.'ill 

•'         V     .MolllgoMK'IV ..  l,")('i<,( 

I'l'art  V.  Peart ". -I.'O,  487,  ;'!»l> 

Peere««, 'I'lie l!i7S 

Peillon,  K.\  parte I0S4,  I  ItiS 

ronpit 'V.  Tlie  North  IJril.  \'  .Mer.  Ins.  Co. 

.'Il.l'.'.il',  7711,  1016,  lOCH,  111.". 
Pe|)py  f.  Croiio.  .  IL'I,  ;!-J0,  3Jl',  547,  iOI-',  l.'ilK. 

I.V20 

Purley  v.  Snow .    .      lU.'i,   I  Ml 

I'oter'is  V   l''recker     «.".8.  I5."),'S 

"      t).  .Silver ".I4(;, '.(54 

Peltipas  V.  Crosliy   I'27(i 

Phaileiii;.  Phail.'n Pi'..,  I()!t7 

Phelani).  Kelly..    (MM 

"       V.  I'lielan    .      4SH 

Pietou  r.iink  v.  Ifarvey .'iu.'^,  1214 

"      )).  I'laser 678 

"       Uaihvay  l>aiiiaj,'<>s,  In  re  SS,  133,615,  I  ).5S 
•'      .SiJKiol  'I'ni.stee.s  V  (,'aineron    .  .  .3^1,  PJ40 

'•      Town  of,  !'  .\l(d)oiialtl .'lOS 

Pier.s,  ,Ste|)lion,  Will  of,  In  re   liSli,  I (i.'Jo 

I'ilgriin,  The 1 1'J.S 

Pine,  Estate  of,  In  re 3S;),  1 134,  1(130 

Pinto  V.  (iiivazu 236,  237,  H'^'.t,  1 1  !»■'>,  132o 

'      In  re 130,    •-'34,  1411 

•'      r.Shaw 321,1440,14.54 

Pitts  V.  Taylor 333,  955 

Voiicia  y.  MeDonnell     574,  776 

Pope  V.  Pietou  Steamboat  Co 8 1 ,  34 1 , 

1116,  1120,  1435 


I  roi.i'MN. 

Pophani  V.  Cahooii 165 

potters  r.  Taylor lO''    10.^6 

Powei'  V.  Cri'lliii .Mt7,  H2.S,  15-J6 

Pree.lv  r.    liahUviii ...7m,  lOHM 

Pliestr,   !!iiNM.|l 400 

Provi.liiirc,  I'he 3ii.  1)17,  i;i47.  IH.'O,  |3'i4, 

l.'l.jii.  I3:i7,   i;i.'>l>,  ;3Sil,  |.'i4S 

Piii\  iileiK  (•  \\ash.  liiM   Co,  /'.  .Miiion    7-4 

•'  ••  D.  Corhett 7-'r> 

Proviiiiial  Meilicil  Moanl   /'.  U'anhiiititoii.  ,  .H64 

I'll^'li  r,    Peters ;t!t7,  M'^  Ul\  160!) 

"       r.  Wvhle 733,  l'.M7 

Plllleli  V.  S'anfonl '2\» 

Piiii.h  /'.  Chisholiu .TiO,  I41i;j 

Plircell  r.  jhirUe 1566 

Piirily  i:  liiirl>riilj,'(! 110 

"   '    ■'.  .Mathens 71 

Pyke,  In  the  Matter  of.  .  . .  '230,  3.">7,  1092,  l'J'J4 
1 

Queen  »-.  Allan 408,  'A'.i,  IVM),  1414,  1477 

!        "       I',  lielvea 413,  804,  14.37 

•'       r.  jJla'ck .419,  1319 

j        "       r.  iilaekie  ....  114,  777,  1067,  141.5,  1476 

I        "       r.  Mrown .308,  KtS.V   1169 

"       r.  P.iir.lell ;i(i,  413,  80.5,  I.S.'IS    1.377 

I       "      V.  Calhoun 92.  280,  21t4 

"      r.  Cameron 'J.VJ,  992 

"       V  Caiter...-.'.'it;,  •JIC-',  *J1I.3,  769,  10.'>_'.  l.'\4'2 

"       ('.  ChesaiieakeaiiilCarj^o 27,990, 

1122 

"       r.  Chesley 246,  511 

"      )».  Clii|)iiian... .311,  818,  1244,  1434,  KiO.'i 

"       c.  Cialihey 418,1080.1169 

"      V.  CunniiiKhani 4011,  410  790,  1316 

'•      ('.  ("iitler 1628 

'•       )'.  Dehay 407,  1318 

'•       r.  l),,novan 76,  Kt.")8,  1610 

I       "      ?',  Dowse V 414,  I.'t(i4,  1476 

'•      ii.  Kl/,.   .'. .2911,  869,  1478 

"      I).  Flint .802,  1 199,  127.5  l.'iOS 

"      r.  Kraser S.'t9,  HK)2,  1 197,  1303 

"       IV  Cold  Watehe.s 1199 

"      V   (iraliani 2«2,  820,  1.329 

••      r.  Hawes 776,  10.-)2,  1.303 

"      r.  Ileah^v   414,  l.V.t6 

'•       r.  Ileiidt'v    417,971 

••       r.  Ilicknian 418,  l(»8r.,  1 169,  1320 

"       r.  Ill.ks 27.5,  817,  8.54 

"       r.  Ilohues  X"   I'.reckeii 412 

'•       r.  Ilucstis    410,81.5,  1.3.51 

"      r.  Ilu-hes .821,  1.349 

"       /•.  Iliiiniihrev    24.5,  10,S8 

"       r.  Kenned v" 406,  796,  803 

"       r.  KiMsniaii 417,  .581,  791,  1273 

"      r.  Lani/ .321,  1318,  1495 

"      r.  NcDanto   412,  1317 

»      ,,   Levy         311,  628 

'«      V.  lA.ms 276,299 

"      ,'.  MeDonaia 277,299,817 

"      r.  .M.Fadden 282,  293,  819,  1.351 

"      r.  MeKaieher 2.57,  292,  1088 

"      V.  McKer./.ie 1  76,  251,  293 

"      V.  Martin 409,  412,  79.3,  8.50,  1319, 

1,357,  1.309 

"      V.  Miller <i7,  827 

"      r.  Murphy 177,  407,  804,  14.37 

"      V.  M urray 244,  3 1 3,  387,  1 487 

"      r.  O'Xeil 278,  295,  403,  1087,  1 142 

•'      r.  Orr 278,296 

'•      r.  Porter.    .279,  295,  301,  307.  1330,  13.52 
"      V.  Preeper   416 


1660 


INDEX. 


Queen  v.  Qninn 411, 804,  1477,  14fl(i 

"  r.  Kiol'.y    ;W.> 

"  V.  Kill's •_'!)(! 

"  (.'.  H()l)in tid,"),  CO; 

"  V.  Ross tl'J 

"  r.  Kiiinsey •_'  IS 

"  V.  Hiiasdl 4(l!l 

"  I.'.  Ryerson 174,  i).".7,  1107,  1470 

"  V.  Suiter    •_'77,  •-Mt4,  .SI4,  l;{;)4 

"  V.  Sliepeard (iO,  :<MK  I  ."('JS 

"  V.  Shortis SIS,   l,-)l<,l 

"  V.  Sniitli 4I.S,  147.') 

"  V.  Snow    ST  I 

"  i\  Stowe 4i;i 

"  v.  Thompson 417,  lns"),  I  Ki!) 

"  r.  Toliin .SO.'!,  SOS,  KMd.  1(100 

"  V.  Todd O'i,  .■)7G,  0S7,  i;no ; 

"  I!.  Topple 411  I 

"  i:  Town  t'ouiiL'ilof  l):unnio\itli . .  \'M,  S."),"!,  ; 

1  •_•;)(),  1410  I 

"  V.  Upliani 0(i  I 

"  V.  Wiillace 411,  147.")  j 

"  r.  Ward •i7»,  -'07,  .'111,  104S 

"  r.  Warden  and  'I'own  ("oiincil  of  Dart- 
mouth   i.ss,  H:yA,  8.').'),  i(r)4,  i'_';{0 

"  r.  Watson     41S 

"  ('.  Wolfe (Kl,  'J07,  '-'To,  I.ViO 

"  r.  Woodwortli 4.m,  1(140 

Quirk  v.  Twininj,' !(4,  l(t(i4 


Ralston  r.  Rarss 1'207,  l.'l.VJ 

"        Estate  of,  In  re  .  .'A.  SO,  ;W2,  .'WKi.  .")7li, 
704,  WM,  11. -{7,  i;!!Ml,  14;!.'. 

Ramie  /•.  Walker !)'_'.'l,  I4S4 

Rand  r.  Flavin ',]'/,.  ."iO.'! 

"      r.  Roekwell.  .  4.'),  7S,  7!t;i,  8(10,  Ol'O.  lol.'l, 

14r.l,  14'i.") 

Randall  r.  Dela]) ."1.   1  i:!!t,  K-'JO 

RiUehford  r.  Chiimian 0,  70S,  l'..ViO,  l.".7S 

"  r.  Kinnear 10.S;{,   l.Vi;!,  Kilo 

Ray  /•.  ('nrl)ett   4.")7,  10i;{ 

Raymond  r.  Riehards 8,  l(i2,  004,  1 17S 

Read  r.  Munieipaly  of  (.'.  I>.   .•171,  8(m,  1201,  i.'iOO 

Kej;ina,  The " ll'.")!»,  l-J'.M 

Reid  r.  Smith .">1,  •JOl,  770,  lOSO,  1170,  I.'IS.") 

Reine  Des  Anf,'es,  La 1 1'_'0,  1,T)S 

Renner  /•   Halifax  Steanihoal  Co O.SS 

Rent  )'.  Adiington   ,"> 

RepuUlican,  The R>(;(! 

Reward,  The 07:i,  1 1--'7 

Reynolds  r.  Declimnn     01. '1,  l.'iSl 

"         i\  Gallagher  (iold  Mining  Co :j(i!». 

707,  1104 

Rhodes  r.  Ratriek    80."),  14l'."> 

Riee,  In  re92,  0;i,  'JitO,  'AUT,  41S,  OKi,  lOSO,  IIWO 

Riehardson  r.  Twining I'J'ili,  l.")SI 

Riehmoiul,  The 1200  ' 

Riekards,  Estate  of.  In  re ()S2 

V.  Riekards 104 

Riddel  v.  Gordon       120,  1. ");!."> 

Rimes  r.  O'Rrien 1 17,  1 10,   121 

Rines  i:  Hermes 7S4,  1074,  14'27,  l."i().">  | 

Ring  r.  IJrennan .  1 100 

Riplev  ('.  Baker s;{7 

Risser  v.  Hart 398,  420,  0;i4,  ],-)!)4 

Ritchie  r.  Hall 4.')  | 

"       Precedence  of,  In  re.  .80.  191,  208,  012, 

1140,  1243,  I.SO.T 

Roach  V.  Ware 200,  9.")8,  1007  ! 

Roberts  v.  Patillo 457,  580,  1012  | 


COLUMV, 

Robertson  r.  Ciimen  n 1 1,  .'l.">,  l(»90 

r.  I)<jm.  S.  S.  Co 2,s;{,  1202 

"  r.  Diidman 42,  71") 

r.  Iliilifax  Coal  Co 020.  1100 

r.  Lamic s;{.  .-)()() 

/•.  Lovett 74."),  84:i,  KilO 

r.  I'ugii    ,")4I,  720,  lO.'iS 

/•.  Stalls 74;{ 

r.  wiiii.uiis i;i,  i."):io 

Koliin.-^on  r.  City  ol  lialifa.x   2."),  017,  1407 

r.  Ilemlry Itm 

!!.,  Tlie 12,S9 

Rnihe,  L.,  Estat.' of,  hire .'i'.IO,  1134,  10.32 

Itoikwell  r'.  Koss .34,  173,  0.30,  1470 

llodgers  V.  .loiies 7.30 

Rogers  r.  Rogers 31(i,  1(»48 

Roiine  V.  Moiilrial  (Kran  S.S.  Co.  284.  .33,'),  1 1 1") 

Roo|),  K^tate  of.  In  iv .SO,  ."iC)!!,  1 1.33,  1 1,3") 

Roper  r.  Sliaiiiion 0,    l.")4,  043,  llil 

Koseio,  Tlie 42.-),  1 122 

Rose  r.  Riirke 7."),  700,  1417,  I4.S0 

Ko.^'s  r.  Harrington (iOl,  878,  1078 

"     r.  Hunter 4.")!,  470,  1170,  1480 

"     r.  MuKenzie 200 

"     I'eter,  In  re .34,  10."),  1040 

Roteh  r.  Flimi I.")(i8 

Roue  r.  IVendeigast 17."),  2.")2,  1481 

Rciwena,  Tiie 1280 

Royal  Arch,  The 1 289 

Royal   Can.    Ins.    Co.    r.   Merelumti'  Mar. 

Ins.  Co 74.") 

"  "  •.   I'ugii 74.") 

r.  .Smith  .")43, 7 17,  703, 1071 

lioyal  Ins.  ( 'o.  r.  .loncs 748 

Rule  r.  Rdliirtsoli 1.-) 

lillles  of  Coiill 1202 

Riimsey  r.  (jiinningham .  .48,  OS,  I4S,  092,  1214, 

1,")07 

r.  Hare S,  151,  1307 

"  /•.  .Meirhanls'  .Mar.  Ins,  Co 733 

r.  I'rov.  Wash.  Ins.  Vo 43,  7.38 

RiinelM'ig,  The 1293 

Ru.ssell  r.  ("ook 109 

"       /•.  Grant 214,  lOU 

"       r.  Marshall 540,  9.39,  12,80,  1.302, 

14.3i;,  l.")92 

Ryan  /•.  Hawes .")70,  1.322 

Ryerson  i:  1  )eil.y .342,  (10(» 

"         V.  Lyons .321,  1220 

Sally  Ann,  The 37,  1127 

.Salter  ?:  Full IdS 

"     t:  Hughes 30,  47,  610,  ri20,  1.3.")0 

.Sancton  v.  NIor.se 020,  1 181 

.Sanford  v.  Rnwles 1 7S,  1 579 

r.  .Sanford 110 

Sarah,  The 1 287 

.■^irdinian,  The 1270 

Saunders  r.  Holdswoith 21 

.Sawyer  r.  ( iray    274,  1213 

S.  15.  Hume,  The 1259,  1  287 

.School  ,Sec.  No.  29,  In  re 139,  302,  1241 

.Scott  V.  Angus    604,  1072,  12r)3 

"     c.  Rruin.m 352,988 

"     r.  Croekett    343 

"     r.  Henderson COO,  1.3.38, 13.39,  1341, 

1.346,  1300,  1.392 

"     V.  MeXutt 452,  494,  1258.  U46 

"     i>.  Royal  Halifax  Yacht  Club.    .  .315,  392, 

557,  1485 
Scottswood,  The 1288 


INDEX. 


1661 


COLUMN. 

Senman  r.  ramplicU 4?.'J,  804,  Ofil,  ir)94 

"      V.  CuttiT ITiTl 

"       V.  DeWolf 3-Jl,  IWl,  V.]X\,  insi. 

l.')8S,  i:{!io 

Estate  of,  Ii   re HUT 

c.  I'oiter.    ..."0.  C(J.  (113,  Sr.O,  lOOa,  1I>S3 

"       V.  West    741 

Seaway,  Tlie I  l!l!»,  i:><)2 

Se(li^e\vi>-.k  r.  hiiiliiiiiks li;7, 1'lU),  10.')1 

Seeiy  r.  (iill.eil Id'.IS 

"     ».  I'lacly 32,  !l.".!l,  |()3(l 

Seetou  r.  Aleirliaiits'  liaiik Iti.'i,  121(1 

Severn, Tlie 1 121,  l.'WI 

Seymour  t\  I'.ieliiiiei'.  ...      ."i.'VJ 

Sliaiily  7'.  ril/rand' "    '     Kid,  l(i4,  r.-_'l 

Sluimialiuii  i'.  1-t  J  an !C_'4 

Sliaij)  r'.  Maxnt  r 7S(i,  Kill 

Sliattonl  -•.  l.elilane I2()l 

-c>.  Nelson ■2V.i 

Sliell)iii'ne,  Miiniei|)alily  of,  t'.  Marshall ...  .■J.'i.S, 

M-2.  :>\:i,  i4-.'i 

Shepherd  r.  Wliite 4().S,  10!l!),    14!lit,  l.V.Mi 

Slierloek  -■.  .MeLelhin (is4 

Sliey  r.  Cliisiiolni 4.VJ,  .')47,  IMKI,  I  ISO,  l;U(l 

"     T.  McHetVey 1201,  l.-.(ll 

Ship  Uetsy,  The I '_'(),') 

Shorey  z-.  Jones    I.V.t.  4(1S 

Sililey  ?'.  Chisholni ilOd,  107!l 

"        c'.  Sil.ley 170,  1221,  l.-)Sl 

Silver  IJell,  'I'he I2!t.') 

Silver  7\  Doni.  Teletrrai)!!  Co 4(10 

"       V.  .MeC'iiHoeir. 10.-) 

"      V.  Petitniaitre (isd 

"      -■.  Silver (144,  VSI 

Simpson  r.  Foote 44.-> 

Estate  of,  in  re :W.S,  ;«l(),  ."ill,  .■)47, 

7(W,  704,  II. "54,  II. SS,  l.Tss.  1442 

Sinelair  v.  Wakefield 22(1,  (i;!7.  i;i7l,  14!(l 

Sini,'er  Sewing  M.  Co.  r.  McLeod.  .2;i;ii,  ;us,  ,s;{4 

Skinner  z:  Clarke !I!I2,  I ISS,  l;i!»7 

7'.  Lane 1!».S,  404,  NO.'I,  1 104 

Slayter  v.  .I.ihnston ilO.S,  l;iill,  |;J!I4,  144;{ 

Sloeoml)  z'.  .Morse 2;U,  .■);{7,  940,  H.'il 

.Smith  z:  Hank  of  N.  S l!SS 

"      V.  Cuff K),  .S4fi 

"      r.  Fulton .Vil,  12S1,  i;{(i7,  I.Vi2 

"      T.  (iiUies II (HI 

"      r:  Intereohuiial  Coal  Mining  Co..S(10,  !»22 

"       c.  .McDonald 4(i!l,  iltiS,  KrJO,  KlOi) 

"       r.  MeEaehren.  .201,  'X^'A,  !IS7,  I.T>2,  I4.-.0, 

Uol,  1470 

"      c.  MeKenzie 48(1 

"       c.  NeLean 442,  14(11,14(14 

"       r.  McNeil 247,  l.'iil'.l 

"       r.  .Maxner Kl.V),  l.-)()(i 

"       r.  Koyal  Canadian  Ins  Co 71 S 

"       r.  Smith.   .-Ml,  (112,  7.S0,  974,   KMKl,  1257, 

14(11,  i.-as 

"      t'.  Stewart 84vS,  84»,  102.-) 

"      I'.  Troop l.-)(i2 

Smithers,  Estate  of.  In  re 1 10,  -)72,  1 142 

y.  Smith .S!)0,  7>Si,    1461 

"         r.  Smithers r)72,    l(Mi4 

Smyth  V.  McDomihrHH,  4S4,()0!),84;!,  1:140,  l.'Hd 

"      I'.  McDougall I(«t7 

"      r.  McLean    475,  odd 

"      V.  .McNeil ;?.'),  8:!7,  14^0 

Snook's  Petitions 27,  1128,  ll.Sl 

Snow  r.  Morton 4ii9 

Somervillc  r.  Morion 11124 

Songster  v.  Pay/ant 533 


COI.UM.N. 

Souther  r.  Wallace .-)3.  203,  200,  212,  215, 

21  S,  224,  22(1,  229,  421,  749,  8S0,  lO.Ti,  1001 

Sovereign  l''ire  Ins.  Co.  r.  .Moir 592,  7<l3 

Speiue,  In  re 378,  (117,  1148 

"       /■.  W.  iS:  .\.  I!y  (  o 04d,  l.-)93 

Spinney  c.  .Matthews 107 

I        "        r.  i'ui,'slcv 334,  88;-) 

Spurr  r.  Khk  rkiM". 1231,  l,-)88 

Stalker  r.  Wier 8(ld,  I2(il,  I;'i78 

Stanford  r.  Inland  -Navigation  Co 0.-)9 

Stanwood"s  Ciise 2(5,    1(17 

Staples  c.  Tayh)r   5,  7,  .38,  1438 

Starr  r.  Heares 311,  813 

"     M'fg  Co.  -•.  Fairbanks  lOd,  474,  d.-)2,  lOOd 

"     '•.  Muucc  y 3,  d,  1378 

Stiiyner  r.  Ilow.ui 217,  1015 

Steel  V.   I'ife l.-)d9 

Steel  Co.  of  Canada,  In  re .34,  31H,  7dl,  7d2, 

'  79(1,  1071,  IKJti,  ll(J7,  1331,  1.332 

'  "  r.  N'ance 545,   1017 

Stella  Marie.  The 1285 

Stephens  r.  (Ia\a/a (1(10 

I  "         '•.  Twining 1(12,  8.30.  003,  0O4 

t  "         r.  Wier d.-)4 

'  Stel)]uMi.>oii  r.  (  olford l(K)d 

r.  Dulhanly 874,  9,-)(j 

.Stevens  /'.  ()vei>eers  of  P<ior 10.35 

Stewart  r,  V.ovM 0(K) 

!  "      r.  Waugh l.-)55 

I  "      r.  Wheeler 2.34,  9.50,  1 193 

St Ceorge's  Parish  v.  King 100,30(1 

Slimpsoii  /'.  N.  H.  it  .N.  S.  S.  S.  Co  .  .  .28.3,  048, 

007,  14(10 

'  Stockh(dni.  The 1130,  l.-)48 

Stuart,  C.  W..  In  re 804 

i       "         r.  .Moll 873 

Succe.^^s,  The 1124 

Sumner  r.  Iiiirnhill 07 

Suliierland,  In  re .387,  (185,  791,  10(14 

r.  Wi.idden  ..4,V_',   .-).-)9,  lOdI,  1110, 
'  12.58 

'■.  Wilson 240,  504 

S.  V.  Coonan 1280 

Swan  /•.  Pryor    381,  800,  1091 

Sweet,  .\ii|"ical  of.  In  re ,59.  .383,  800 

"      Ktiie.  lu  re 140,  291,  1200,  1480 

Sword's  Lease,  lu  re 871 

Svljili,  The 1288 

Sylpliide,  The 1290 

S'ymond.s  r.   IJeckett     1 100 

r.  Fishwick 41,  326 


Taniaahmah.  The 1203 

Tancied  r.  OMuUin 003,  6.37 

Tarratt  /•.  Sawyer 158,  2.30,  240,  589,  1.344 

Taylor  r.  .Aich'ihald 1502 

'"      i:  ( ;avin 48,  62,  03,  247,  281,  1427 

"      r.  McFarlane 207 

"      r.  Marshall 4!»,  207,  800 

Teed  '■.  IJeehe 540,  058,  1 105,  1.554 

Teujple  V.  .McDonahl 25,  8.3.3,  1500 

Tliayer  r.  Vance fi45,  045,  1014 

Tiierian  r.  iJelliveau   1561 

Thcdcheau  ?:  Everett 803,  940,  1605 

:  Thihidean  c.  Hyerson ,340,  1 18.T 

Thomas  r.  Kay 61 ,  00,  .353,  llfiO 

Thomas  Wilson.  The 972,  126,3 

Thomp.son  c.  .\ckiiurst 140,  1070,  1507 

f.   Ellis 9,  1 55,  .580,  797 

I  •'  v.  Longaril .302,  582,  1219 


1662 


INDEX. 


Thoriic  ».  Shaw .S5,  945,  1()4(»,  1  oOS 

Tlioipu  r.  McLean l-.T.O 

Thivo  Riotli.'i-M,  The I  iL't; 

'riiice  SiHteiM,  'I'hu I'-'tili 

TickU^r,  Tlii' l-JsC. 

Titua  V.  Hiiiiu'M   -liWi 

"      t).  Siilis 4(i.">,  ('..•{S,  1(114,  l.'itUt 

Tdl.in  V.  Dunn l(l-.'7,  lOT.'i.  l-'4(i 

"       Kstiilc  (if,   In  re   .Vi'li,  1  "i!s:t 

'•      V.  O'Xcill lo.'il ,  I  ■).■>:{ 

ti  SyiiKinds 4'_'l'i,  Wl,  l-'tiT 

'Pciry  ('.  Muniripiility  of  (juyshori)' 1 1."),  .'!'.•(! 

Townshend  /'.  I'ye    lOlU 

Ti'iu'ey  I'.  Yoimj^ IWi')  ."iJ".  1017 

Travel's  r.  MiM miay 'iJ^fi,  '.MO 

Trcniaine  r.  Halifax  ( ias  Co Ill,  174,  tlOL' 

('.  Mai'Intosh 101,  ."i'J.-) 

Tronhohn  r  Trt'iiliohii    4i'i,i"('*o 

Trois  Fiei'os,  Les 4il4 

Troop  V,  Anelior  .Mai'.  Ins.  Co 110 

"       r.   jtonnell (!.'»!> 

"      /'.  Hart    180,  (l()8.  r-"J3,  15hO 

'•      >'.  Jones    7'26 

"      r.  Merehanls'  .Mar.  liis.  Co 7'_',S 

"      r.  Mosier 73C«,  80S 

"     V.  Troo|/  2l.'() 

Truatjes  of  I'nldic  Property  r.  (Jillis 4!>;{ 

r.  Kerr.  .107!),  l.").S() 
''  School  Section  1()  c.  Cameron     .380, 

i--';V.»,  1  I.S'.> 

Tucker  r.  Creighton I'il ,  C.Sl,  Sil.") 

K.  1).,  In  re r.7C,  l.'H.'i,  l.'U.'. 

Tupper  ('.  Cainpl)ell.  ..117,  635,  UM2,  liVa,  1(!07 

"        r.  Crowe ■")!).'{ 

"       V.  Livingston 101!) 

"       I'.  iMurphy. . .  ,300,  81'.',  8l(i,  lod.'i,  13.51, 
1418,  14111,  1423,  I4'.t7 

"       V.  Wright 891 

Twining  v.  O.vley 180,  1,V.)8 

"        V.  Stevens •Jti.'?.  CO.') 

Two  IJiiles  of  Cotton    rJ87 

Two  Brothers 1 1-_>4 

Uniacke  v.  Urnndige 8,83,  lOD'J 

V.  Dickson  2rM, 317,838, 133*1,  l:U2,  VMli 

"         V.  (iariliner 80(1,  10.">() 

Union,  Tlie ilKl,  1273 

Union  Hank  ».  Farnsworth 2'_'5,  ,')1() 

Union  liank  v.  Whitman 1  ■>7 

Union  Marine  Insnrance  Co.  v.  Mel/ler....  734 
United  States,  'I'iie 1)72,  1 124 


Vass  V.  Letson .'")7''^,  1  ">43 

Venus,  Tiie   1 1±>,  1 1-_>3 

Vernon  v.  Seaman l.>8,"),  l(l,3(i  ! 

Viekcry  v.  I'rice    774,  047,  !M!4,  1018  ! 

Victs*.  Chute !»l!); 

Von  Metzku  i\  I'adtield 70 


Walker  v.  Hayers 477,  Mfi,  940  i 

'•       V.  City  of  Haifax        24,  377,  (iUf,  023,  I 
()27,  1106,  14(X),  140(),  l(i()4 

"       V.  Cunningham  21 ,  1,")7'-' 

"       r.  Stewart 777,  9,')7,  9(19 

"       The 1291 

Wallace  v.  Bossom 91,  559,  679,  778,  1(»23 

"      r.  Burkner 1102 

"      V.  Creelman 869,  870,  1022,  1029 

•'      w.  Fraser    512,826,1213 


COI.IMN. 

Wallace  llucstisCicy  Stone  Co.,  In  ri;  2(14,757 

"      r.  King 2ill,  1417 

"      ('.  Laidhiw  444,  lO'Jl,  ll!l(» 

"       r.  .McSwci'iicy    81,  I0()7,  1  l-_'l 

"      r.  Ol'ool.'..; 40;!,  790,  lo;{'_',  1143 

"       r.  Iloss   1011,  I  199 

"      /'.  S.mtiicr    82,  203,  215,  218,  221,  227, 
229.  880,  1  102,  1  1(»3 

"      T.  .1.,  Ill  ic 1(1(1,  .•<0!(,  ;!23 

"      r.  Young 404,787 

Walsh  ,-.  Il.irl   .' 1(13,  13!)8 

"     ('.  McDonald 1297 

\Vani|)atiii'!;,   i'lic .3(17 

Ward  t\  Cilv  ot  llalifiix (125 

"       r.  Mc'Doii.ild   lll'j,  |;i!l8 

Warden,  \c.,  D.irlinoulli,  v.  (,>iiccn  ...l.'iS,  l'_','!7 

Waiieii,  Sir  .lohn,  I'clitioiiof 972,  1129 

Watcrin.in  c.  Will ....V,)?.  815,  1232 

Watcrons  KnL'iiic  Co.  /•.  Chiistic '-'11,  lo:i2 

Walcrs  /'.  .Mc'Ciilioch 199,  •J2:f,  1028 

\Vat,«oii  /'.  llcncy (12,  171,  2.4,  1017,  I4J7 

r.  Mercantile  .Mar.  Ins.  Co 738 

"        r.  ,MMiiicii)alily  of  Colchester.  .371,  935, 

1089 

Wavcl.l,Thc ,S01,  1270.  1'271,  1371 

WeliUer  ('.  Co-^well 811,   157(> 

Welisler  I?.   Jlnlnal    llilief  Society ..  lOlO,   I0:i2, 

>i;;!9 

Weeks  /'.   I'.onhun .".88,  7.''(!,  821,  149(1 

Appliealion  of.  In  re 167,  191,834 

We're  Here,  The 1-272 

West  /•.  Ilontilier 92.3,  954 

"      r.   .MalI.eson     4.>l,  !M)1,  I  182 

"      r.  .Met/.ler lO.'iO 

"      ('..Seaman 741 

We.sleni  .Ass.  Co.  /'.   Doidl     -lO,  700,  705 

Western  Counties  K'y,  In  re   9(1.  1.33,  .381, 

11.50,  1  121 
Western  Counties  H'y  r.  W.  &  A.  K'y  ('o  ..273, 

'1103,   11(12 

W.  K.  Wi.r,  Tiie 1274 

W.  C.  Putnam,  The 12iK) 

Wheaton  r.  FranciieviUe, 322,  8'J(i,  12-22 

Wheelock  r.  P.rowii (17,  1042 

r.  Chcsley 213,751 

"  r.  .McKown (107,  i;«!t 

/'.  Morrison  475,9-28,  1341,  I4(!(i,  1409 

White  V.  I  )iinock .'187,  .5(10.  772 

"       /•.  '■''•'Miming.    .5.5-2,  942 

"       r.  Variuoul'h  (ias  Light  Co 9<i2 

Whitehead  r.  Howard ^ 9,50,  978 

Whitman  r.  Colp 3(il 

"        7:  Jones 473,  5-22,  1608 

,:  Parker 198,  1219 

r.  Western  Co's  K'y  Co.   285,  849,  14'29 
r.  W.  &  A.  H'y  Co  ...92,5,  1155,  KlOli 

W  iekwire  i\  liouhl 130,  141 

Wier  i:  Bissctl 4-2(),  1.599 

"    it  Cumminger,  In  the  Matter  of 109 

■'     r.  Letson 70,  336,  .595,  799 

"     r.  Walker    1042 

Wiggins  r.  Town  of  Windsor 58,  141,  307 

Wilkie,  Kstate  <if.  In  re 1(130 

Wilkins  r.  (ieddes 8(1,  751,  1 144 

Williams  r.  .Myers 37,  .3.5.3,  481,  1397 

Willis  ,\  Sweet   401,  838,  15.3-2,  l.\38 

Wilinot  r.  Shaw . . ,  8(13,  1481 

Wilson,  In  ro 33,  8-22,  851,  1397 

('.  Lyle 5-26 

"       r.  Merchants'  Marine  Ins.  I'o 723 

\^  inchester  v.  Roblee 49,  65, 1428 


INDEX. 


1663 


VV.  &  A.  li'y  Co.  V.  WcstiMii  Co's  R'y  Co  . .  .3S, 

L'liH,  2--2,  y;  1 ,  1 0 1-2,  1 1  (1 1 ,  1 1  ('.3, 

l.')l(t.  I -ill 

\V.  &  A.  i:"y,  In  ic KSO,  L'ti;.,  1 157 

Windsor  .Miir.  Ins.  Co,  v.  Ladd ri44,  IKiil, 

9t)>,),  117! 
Winds')!',  Town  of,  o  ('oni.  IJ.irik  of  Windsor 

ll'!>,  18-_',  •_'()!>,  1. •{•_>() 

Wolfe  r.  .loncs (jf)« 

Wood  V.  Allan   •_'M7,  ASS,  1.S70,  1  fliCJ 

"      «.  Ksson   <H7 

"       V    Hare     CHI ,  <)()l' 

"       ('.  Sniitli 4S-2 

Woodliniy  t'.  ( Jatcs 2iM) 

Woodiii  ii.  IJnslii'n 1(14,1541 

W(io<lill  V.  Lc(  'tas 73 

Woodldck  V.  I  )iikio  •_>77,  .S<t4,  .T.l.'l,  813,  !)!l,\  14i>{5 

Woods  ('.  KiasiT 4r)0,  5,Sii,  l.'iilS 

Woodwoitli  «.  niackadi'i-     ir>('>7  : 

"  V.  lionluii .  .;W(i,  lilS,  .■)(»(» 

"  V.  Cutten  . ~C>S,  lu;{!t  : 


cor.r.Mx. 

Woodwortli  V.  Dickio 8.">,  •245,  4,3.*) 

V.  Inni.s  48,  (>;{,  807,  l4-2(»,  l-J-.'S,  14:10 

Kslatc  ol,  III  It; (i;W,  l«'.>.-( 

"  r.  Troop I'JO 

"  p.  Witlirow 41) 

"  ('.  Woodwortli 544,  !Mt9,  1180 

Wright  V.  .Morning  llurald  Co 4t!0,  <Mi« 

»•  Ki(^\ iH 118,    1 7<i,  •_'.■)« 

Wnr/linrg  i>.  Wil.li...  .S8,  ;i2.1,  1081,  lll.S,  l.VJ!) 

Wylde  r.  Trcniainf 10S7 

"      V.  Ihiion  Mar.  Ins.  Co 744,  i:i7;l 

"       I'.   Wet  more 'M},  UHKi 

Wynian  t'.  Iiiipcrial  \-'\w  Ins.  C «•)<»,  1038 

Voniig  V.  DcWolf 98 

"       »   Ilait 71(> 

"       f.  Tracoy 3r)5,  528,  1017 

Vork  V.  McLaughlin . ,  ,  .(ii) 

/ink  y.  Zink       38'J,  3!I9,  lliU 

Zodiac,  Thf (-.78,  1 1'jii,  l(;i>3 

/wicker  v.  /ink 957,  1014,  1'_'41