c. 37. 6 Edw. II., defence in any suit or proceeding instituted in the Court of Equity for the same or the like purposes before the commencement of this Act. Relief to defendants. (3); R. S. O. 1897, c. 51, s. (7)]. (4) The Court and every Judge thereof shall also have [J. A. 1873, s. 24 power to grant to any defendant, in respect of any équitable. 57 estate or right, or other matter of equity, and also in respect of any legal estate, right or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the said Court, or any Judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter, or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of Court, or any order of the Court, that might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim as if he had been duly sued in the ordinary way by such defendant. Court to take notice of equitable rights. [J. A. 1873, s. 24 (4); R. S. O. 1897, c. 51, s. 57 (8)]. Restraining. proceedings. (5); R. S. O. (9) ]. (5) The Court and every Judge thereof shall recognize and take notice of all equitable estates, titles and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Supreme Court in Equity would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the commencement of this Act. (6) No cause or proceeding, at any time pending in the [J. A. 1873, s. 24 Court, shall be restrained by prohibition or injunction, but 1897, c. 51, s. 57 every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto. Provided always, that nothing in this Act contained shall disable the Court from directing a stay of proceedings in any cause or matter pending before it, if it shall see fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the Court by motion in a summary way, for a stay of proceedings in such cause or matter either generally or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such order as shall be just. 6 Edw. VII., c. 37. statutory recognized. (6) R. S. O. 1897, c. 51, (7) Subject to the aforesaid provisions for giving effect to Legal and equitable rights and other matters of equity in manner afore- rights to be said, and to the other express provisions of this Act, the Court and every Judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, s. obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to, if this Act had not passed, by the Supreme Court, either at law or in equity. Final deter matters in con [J. A. 1873, s. 2467); R. S. O. 1897, c. 51, s. 57 (12) ]. (8) The Court in the exercise of the jurisdiction vested Multiplicity of therein by this Act in every cause or matter pending before be avoided. proceedings to said Court shall have power to grant, and shall grant, either mination of absolutely or on such reasonable terms and conditions as to troversy. the said Court shall seem just, all such remedies whatsoever, as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that as far as possible all matters so in controversy between the said parties respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. Rules of Law upon certain points. Limitations 24.—(1) No claim of a cestui qui trust against his trustee Statute of for any property held on an express trust, or in respect of any not to apply to breach of such trust, shall be held to be barred by any statute [J. A. 1873, s. of limitations. express trusts. 25 (2); R. S. O. waste. (2) An estate for life without impeachment of waste shall Equitable not confer or be deemed to have conferred upon the tenant for [J. A. 1873, s. life, any legal right to commit waste of the description known 253); R.S.O. as equitable waste, unless an intention to confer such right. 58 (2) J. shall expressly appear by the instrument creating such estate. 1897, c. 51, [J. A. 1873, s. (3) There shall not, after the commencement of this Act, be Merger. any merger by operation of law only of any estate, the bene-25 (4): R. S. O. 1897, c. 51, N. 53 (3) 1. 6 Edw. VII, ficial interest in which would not be deemed to be merged or c. 37. Action for possession of extinguished in equity. (4) A mortgagor entitled for the time being to the possesland by mort- sion or receipt of rents and profits of any land, as to which no gagors. s. 25 (5); R. S. O. 1897, c. 51, s. 58 (4) ]. [Cf. J. A. 1873, notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee may sue for such possession, or sue or distrain for the recovery of such rents or profits, or to prevent or to recover damages in respect of any trespass or other wrong relative thereto in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person, and in that case he may sue or distrain jointly with such other person. Assignment of debts and choses in action. [Cf. J. A. 1873, N. 25 (6); R. S. O. 1897, c. 51, s. 58 (5), (6) ]. Stipulations not of the essence of contract. [J. A. 1873, s. (5) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor; provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action, shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same; or he may, if he think fit, pay the same into the Court upon obtaining a Judge's order therefor to abide the determination of the Court in respect thereof. (6) Stipulations in contracts as to time or otherwise, which would not before the commencement of this Act have been deemed to be or to have become of the essence of such con25(7): R.S.O. tracts in a Court of Equity, shall receive in the Court the same construction and effect as they would heretofore have received in Equity. 1897, c. 51, 8.58 (7)]. c. 37. (7) In questions relating to the custody and education of 6 Edw. VII., infants, the rules of equity shall prevail. conflict or variance between Infants. . 58 (12)]. Conflict (8) Generally, in all matters not hereinbefore particularly 1897, c. 51, mentioned, in which there is any the rules of equity and the rules of the common law with between law reference to the same matter, the rules of equity shall prevail. 25 (11); R. S.O. and and equity. [J. A. 1873, s. 1897, c. 51, s. 58 (13) ]. Proof in tion of assets 8. (9) In the administration by the Court of the assets of any person who may die after the commencement of this Act, whose estate may prove to be insufficient for the payment in full of his debts and liabilities, the same rules shall prevail 101. and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being in England under the Law of Bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, may come in under the decree or order for the administration of such estate, and make such claims against the same as they may respectively be entitled to by virtue of this Act. to apply to all 25. The several rules of law enacted and declared by this Rules of law Act shall be in force and receive effect in all Courts in New Courts. Brunswick, so far as the matters to which such rules relate 1873, 8. shall be respectively cognizable by such Courts. ABOLITION OF TERMS, ETC. far 91: R. S. O. 1897, c. 51, s. 59]. Abolition of terms. [Cf. J. A. 1873, 1897, c. 51, s. 61]. 26. The legal year shall not be divided into Terms so as relates to the administration of justice; and there shall not be Terms applicable to any sitting or business of the Court. 26; R. S. O. or of any Commissioners of Assize; but in all cases in which, under the law existing at the commencement of this Act, the Terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority. Subject to rules of Court, the Court and the Judges thereof, or any such Com- Court and missioner as aforesaid, shall have power to sit and act at any transact time and place for the transaction of any part of the busi- any time. ness of the Court, or of such Judges or Commissioners, or for Power to Judges to business at VII, 6 Edw. II the discharge of any duty which by any statute, or otherwise, c. 37. Return days. Actions of libel, etc., to be tried by jury. is required to be discharged. The first Tuesday appointed for the holding of sessions of the Court of Appeal, and the three Saturdays thereafter, shall be days for the teste and return of all writs and processes required to be tested or made returnable at any particular time in session. TRIAL AND PROCEDURE. 27. In actions of libel, slander, criminal conversation, seduction, malicious arrest, malicious prosecution and false [Cf. C. S. 1903, imprisonment, all issues and questions of fact which might R. S. O. 1897, & heretofore have been tried by a jury, shall be tried by a jury, unless the parties in person or by their solicitors or counsel waive such trial. c. 111, s. 160 (2); 51. s. 102: O. 36, r. 2, (E) ]. Cases formerly within exclusive Court in 28. Subject to rules of Court, all causes, matters and jurisdiction of issues over the subject of which, prior to the commencement of this Act, the Supreme Court in Equity had exclusive [Cf. O, 36, r. 3, jurisdiction, shall be tried without a jury unless otherwise ordered by the Judge before whom the same is to be tried. Equity. (E): R. S. O. 1897, c. 51, s. 103]. Other causes to be tried by 29.—(1) Subject to rules of Court, all causes and issues Judge without other than aforesaid, and the assessment or inquiry of jury required damages, may, and (subject to the provisions of section 30) a jury unless by party. [Cf, C. S. 1903, in the absence of such notice as is in sub-section 2 of this c. 111, s. 160 (3), (4), (5); R.S. O. section mentioned, shall be heard, tried and assessed by a 1897, c. 51, ss. 105, 106, 107 (2)). Judge without a jury. Notice to opposite party. Notice to (2) If any of the parties desires the issues of fact to be tried or damages to be assessed or enquired of by a jury, he shall, at least ten days before the sittings or Court at which the action is to be tried, or within such other time as may be ordered by the Court or a Judge, serve on the opposite party a notice in writing to the effect following, that is to say:"The plaintiff (or one or more of them, or the defendant, or one or more of them, as the case may be) requires that the issues in this cause be tried (or the damages assessed) by a jury," and a copy of the notice shall be attached to the record or copy of the pleadings in the action for the use of the Judge. (3) He shall also serve a like notice on the Sheriff at least ten days before such sittings or Court, and it shall also be the duty of the plaintiff's solicitor in any of the actions mentioned |