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D. Glass and Chester Glass for plaintiff.

A. Monkman for defendant.

[12th May, 1886.]

KILLAM, J.-Demurrer to the plaintiff's bill of complaint, which alleges that the present defendants, five in number, brought a suit on the equity side of this court against the present plaintiff, that by and under the decree made in that suit the present defendants were adjudged to pay to the present plaintiff $217.19 for costs of suit, that an execution was issued upon the judgment thus recovered against the goods of the present plaintiff for this sum, and placed in the hands of the Sheriff of the Eastern Judicial District "where it remained in full force and virtue until the seventh day of January, 1886"; that on the fifth day of January, 1886, the present plaintiff caused to be issued a certificate of such judgment, and on the seventh day of January, 1886, the same was registered in the Registry Office for the City of Winnipeg, and thereby became a lien and charge upon all the estate and interest of the present defendants upon the lands described in the bill. The bill then proceeds to allege that at the time of the recovery of such judgment and at the time of the registration of the certificate the defendant Robert McDonald was, and he still is, the owner in fee simple or otherwise well entitled to certain lands in Winnipeg (describing them); there are similar allegations as to each of the other defendants separately, the lands alleged to belong to each being different from those alleged to belong to any of the others. The bill then alleges that the sheriff realized nothing under the execution referred to, and that on the seventh day of January, 1886, he made a return of nulla bona thereto, and that there still remains due to the plaintiff $217.19 and interest from the 15th day of December, 1885. The plaintiff then claims that, by reason of the matters and things aforesaid she has a lien upon the said lands for the amount due on said judgment, and interest, and is entitled to have the same declared and the lands sold in default of payment, and prays for a declaration of the lien, for an order for payment by the defendants of the amount of the judgment with interest and costs, and in default that the lands may be sold and the proceeds applied in or towards payment.

One of the defendants demurred to the bill for multifariousness, and to so much of it as seeks an order for payment of the amount of the alleged judgment for want of equity.

Upon the demurrer coming on for argument this defendant assigned, as further grounds of demurrer, that the plaintiff should not proceed by filing a bill, but by petition in the cause in which the original decree was made, claiming that the present suit is merely one to carry that decree into operation; that the plaintiff should have taken further steps to realize by execution before filing this bill; and that the bill should show the lands not to be exempt from seizure or sale under execution.

The proceedings are taken under the 11th section of the Administration of Justice Act, 1885, which provides for registration of certificates of judgments at law, and that from the time of the recording of such a certificate the judgment "shall bind and form a lien and charge on all the estate and interest aforesaid in the lands of the judgment debtor in the several registration divisions in the registry offices of which such certificate is recorded, excepting always such real estate as is exempt from seizure under any writs of execution issued by any court in the Province, the same as though charged in writing by the judgment debtor under his hand and seal; and after the recording of such certificate the judgment creditor may, if he shall elect to do so, forthwith proceed in equity upon the lien and charge thereby created." A sub-section provides for registration of any decree or order of this court, on its equity side, ordering payment of money or costs, upon the certificate of the registrar, and that such decree or order, when so registered, shall "have the same effect as a registered judgment."

The demurrer for multifariousness, in my opinion, should not prevail. All the defendants are interested to this extent, at least, that the debt is joint though the lands on which it is secured may be held by them separately. The realizing of any sum by sale of any lands will have the effect of decreasing the indebtedness of all. By one act the debt became charged at the same time upon all the lands, and the charge rather resembles one created by the joint deed of all the defendants than separate charges created by their separate deeds. If all had jointly mortgaged these lands, of which different defendants separately

own distinct portions, one suit could be maintained against all the mortgagors for sale of all the lands under the mortgage.

The doctrine of multifariousness is to be supported only by the consideration that no person should be put to the expense of being made a party to litigation in which he has no interest, or that several wholly distinct matters, some of which may involve little trouble and expense, while some may involve much, should not be mingled together in one suit. To dismiss this bill as multifarious might be to expose the plaintiff to the necessity, and these defendants to the risk, of having five different suits, instead of one, brought to realize the same debt. To carry the rule as to multifariousness to this extent would be to make it an instrument of oppression rather than one of protection.

I am, however, of opinion that there should be no personal order, in such a suit, for payment of the judgment debt. It should be the subject only of an action at law, and, in accordance with the views which I expressed in the case of The Real Estate Loan Co. v. Molesworth, 3 Man. L. R. 116, such a claim should not be joined with an equitable claim in a suit in equity. It is true that, in Ferguson v. Chambré, 2 Man. L. R. 189, I expressed the view that such relief could not be refused, if insisted upon, but my attention was not then called to the point now raised, and the remark was not really of importance to the matter then discussed.

As authority that the present plaintiff should proceed by petition in the original cause, reference was made to Fish v. Carnegie, 7 Gr. 479, but a reading of the report in that case shows that by Con. Stat. U. C. c. 12, s. 68, there was express provision for that course. Here we have nothing of the kind; but the only provision is that the decree when registered is to "have the same effect as a registered judgment." A judgment, when registered, binds and forms a lien and charge upon the lands of the judgment debtor, as if the judgment debtor had expressly charged them by deed; to obtain the benefit of such a charge the judgment creditor must file his bill in equity. The enforcing of such a charge acquired by registration of a decree cannot be said to be carrying the decree into operation. There is nothing in the decree itself binding or charging the lands; the charge is a creature of the statute, arising apart from, and

subsequently to, the decree, as if, after the decree, the judgment debtor should mortgage his lands to secure payment of the amount directed to be paid by him. I can see no authority for proceeding in any way than by filing a bill as the present plaintiff has done.

It does not appear to me that the plaintiff was obliged to take any steps to realize upon the decree by execution or otherwise, before registering the decree or filing this bill. No such limitation is expressly imposed by the statute, and I can see nothing to indicate that such was intended.

I agree, however, with the contention of the defendant who demurs that the bill should show the lands not to be such as to be exempt from seizure under execution. It is not all lands of a judgment debtor that are charged by registration of a judgment or decree against him; it is only such lands as are not exempt from seizure under execution. Unless the exemption is negatived the bill leaves it in doubt whether the lands described in it are subject to the charge upon which the plaintiff is proceeding, and a decree could not properly be made upon such allegations merely as are contained in the bill.

I allow no costs to either party.

The plaintiff may amend the bill within two weeks, without costs; if she do not amend within that time the order will go, allowing the demurrer and dismissing the bill without costs.

MCKILLIGAN v. MACHAR.

[IN EQUITY.]

Constitutional law.-Parliament of Canada.-Act respecting evidence in questions affecting land in Province.-Public document, proof of by certified copy.

1. Certain provisions of an Act of the Dominion Parliament (46 Vic. c. 17, s. 2, s.-S. 4) for the reception in evidence of certified copies of documents and records in the Dominion Lands Office is ultra vires, so far as they can be considered to apply to suits merely for the cancellation as clouds upon title of conveyances (not being letters patent from the Crown) registered under the Lands Registration Act.

2. By the Imperial statute 14 & 15 Vic. c. 99, s. 14, certain provision is made for the proof of books and documents of a public nature by the production of an examined copy, "provided it purport to be signed and certified as a true copy by the officer to whose custody the original is

entrusted."

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A copy of a book, within this statute, certified by "A. Russell, Acting Surveyor-General ", the original of which was proved to be in the Department of the Interior, in the Dominion Lands office, at Ottawa,—

Held, not sufficient evidence without proof that A. Russell was the officer to whose custody the original had been entrusted.

J. S. Ewart, Q. C., and C. H. Allen for plaintiff.
P. A. Macdonald for defendant.

[12th May, 1886.]

KILLAM, J.-The plaintiff has filed a bill, claiming title to certain lands in this Province, and asking that certain other conveyances thereof, or alleged to affect those lands, which have been registered in the registry office of the registration division in which the lands are situate, may be declared clouds upon the plaintiff's title.

The plaintiff sets up title through one Napoleon St. Germain, alleged to be the child of a half-breed head of a family, resident in Manitoba at the time of the transfer thereof to Canada, and entitled as such to allotment of a share of 1,400,000 acres of land set apart for such children. The bill then alleges that, on

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