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would have been the taxable costs of defence in the county

court.

No costs of the application will be allowed to the defendant. As his attorney failed to attend upon the taxation, and raise then the questions now raised, I would have ordered that the defendant pay costs if his absence had not been explained as it is.

MILLER v. HENRY.

[IN CHAMBERS.]

Staying proceedings under order to strike out defence.

The strict legal right to appeal from an order does not necessarily entitle the aggrieved party to a stay of proceedings. It is a matter of discretion, and may be refused when a stay would defeat the ends of justice, or where one of the parties would be materially prejudiced by it, while the inconvenience to the other party would be of a much less character.

G. G. Mills for plaintiff.

J. D. Cameron for defendant.

[7th April, 1885.]

DUBUC, J.-The plaintiff obtained an order to examine the defendants on their pleas at St. Catherines, Ont. An appointment was made and served on the defendants, but they failed to attend.

On this being shown, the plaintiff obtained an order directing that the defendants do attend before the examiner at their own expense, and in default that their pleas be struck out.

The defendants gave notice of appeal from said order, and now apply to have proceedings on the order stayed, pending the appeal.

In Ontario, under 36 Vic. c. 8, s. 24, which is about the same as our statute, Morell v. Robinson, 6 Pr. R. 210, decides that the statute is wide enough to include such proceedings.

But afterwards, by 41 Vic. c. 8, s. 9, the Legislature of Ontario seems to have thought it necessary to provide specially for the case of parties residing out of the Province, as stated in Bank of British North America v. Eddy, 9 Pr. R. 296.

I am inclined to think that our statute, as it is, is sufficient to cover the cases of parties outside of the jurisdiction of the court; but the defendants here have the right to appeal; and if the plaintiff is allowed to proceed, the appeal would be virtually defeated.

It may be urged that the defendants should show that they would be prejudiced by not staying proceedings, and they have failed to show that.

But the question may be asked, which of the parties will be more prejudiced: the plaintiff if the proceedings are stayed, or the defendant if the proceedings are not stayed?

It may be contended on the part of the plaintiff, that the staying of the proceedings would delay the trial for several months, until the appeal is decided, or he would have to waive or forego his right to examine the defendants for the purpose of discovery. But there is another thing which he can do. He might obtain the purpose arrived at here by taking out a commission to examine the defendants. On this there could be no objection.

As to the defendants, without deciding whether they would, or would not, be very materially prejudiced if the proceedings are not stayed, they have the legal right to test the question in appeal, and that right would be virtually taken from them if the proceedings are not stayed.

I do not mean, nor do I want this to be a precedent for the proposition that every appeal from an order of a judge should carry with it a stay of proceedings on the bare legal right to test the question before the full court, because the consequence would be that every party defeated in the most frivolous application would virtually attain his end by claiming his legal right to

appeal on the most futile and unreasonable grounds. The judge has to exercise his discretion, and may refuse to stay the proceedings when the doing so would have the effect of defeating the ends of justice, or when one of the parties would be materially prejudiced by it, while the inconvenience to the other party would be of a much less character.

In this case, in view of the action of the Legislature of Ontario who have thought fit to amend the statute which was the same as ours, and make a special provision to cover cases as the one in dispute here; and in view also of the fact that the plaintiff might obtain his purpose by another mode which is exempt of any doubt or objection,-I think the proceedings under the order to examine should be stayed until the appeal is disposed

of.

Summons absolute; costs to abide the event of the appeal.

WICKSON v. PEARSON.

(IN EQUITY.)

Vendor and Purchaser,—Limiting time for payment by notice.— "Prowling assignee."

Three of the defendants agreed to purchase certain lots from the H. B. Co., one-fifth to be paid in cash and the balance in instalments; time to be of the essence of the contract. These three defendants sold to Mrs. C., their codefendant, who afterwards filed a bill to rescind the sale on the ground of fraud, and for a lien upon the land for her purchase-money. Pending the litigation the plaintiff paid off the H. B. Co. and took a conveyance subject to the agreement. Shortly afterwards he filed a bill in the name of the Co. against the same defendants for a rescission of the contract. This was dismissed because the Co. had parted with its interest.

The plaintiff then gave the defendants notice to pay in three weeks, and in default that he would rescind. Payment not having been made upon the date fixed, this bill was filed to declare the contract rescinded and that the various documents might be declared to be clouds upon the plaintiff's title. Held. 1. That the time given for redemption was reasonable, and that the defendant Mrs. C. was not now entitled to redeem.

2. Upon the evidence that the plaintiff was not disentitled to relief as being a "prowling assignee."

G. A. F. Andrews for plaintiff.

F. Beverley Robertson for defendant Mrs. Cummings.

[12th June, 1886.]

WALLBRIDGE, C.J.-The bill is filed by this plaintiff against Alfred Pearson, Hector McLean, Robert Muir, Rebecca Ann Cummings and the North British Investment Co. (Limited), and prays that a deed from the first three defendants to Mrs. Cummings and the mortgage by her of $12,000 to the other defendant, the North British Investment Co., may be declared void and the registration thereof vacated, and also that two certificates of lis pendens filed in the registry office by the defendant Rebecca Ann Cummings against the first three named defendants be vacated.

The title set up by the plaintiff is that the defendants Pearson, McLean and Muir entered into a contract with the H. B. Co.

for the purchase of the lands in the bill mentioned, and paid part only of the purchase money. The H. B. Co. conveyed the land to the plaintiff, subject to the said contract, and he alleges that he had determined that contract by notice, by which the defendant's right to purchase has been forfeited and rescinded.

The defendants, all except the defendant Rebecca Ann Cummings, have permitted the bill to be noted pro. con. against them.

Mrs. Cummings answers by saying she purchased the land from the three first defendants, and was induced to become purchaser by their fraudulent representations. That she filed a bill for rescission, and in that suit filed the two certificates of lis pendens. And by supplemental answer that she obtained the decree asked for, and the court declared that she had a lien on these lands with other lands for a return of the purchase-money paid by her on account of the purchase. And she alleges in her answer that on the day of the expiration of the notice limiting the time for payment of the balance of the purchase-money due under the contract of purchase by the first three defendants, namely the 27th November, 1885, no decree had been made in her suit; that she used due diligence in prosecuting her suit; that she was advised that if she paid the money due on the contract she might be bound to pay the balance of the purchase-money on her contract; that she was entitled to a day for payment after the original purchasers had made default; that on the said 27th November she was ready and willing to pay, but acting on the advice of her solicitor she refrained from so doing, for the cause above stated, but that she now is ready and willing to pay the money, and she did in fact tender the money on the 3rd day of December, following, to this plaintiff.

The facts proved are as follows:

On the 1st December, 1880, Pearson, McLean and Muir entered into an agreement to purchase the lands in the bill mentioned from the H. B. Co for the sum of $1,850, of which they then paid down the sum of $370, being one-fifth of the purchase-money, the remainder being payable in four equal annual payments, with interest on all unpaid principal. Pearson, McLean and Muir in December, 1881, paid the further sum of $370, leaving a balance of principal at the date of that payment of $1,110.

On the 28th January, 1885, the amount then due in

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