Upon a bill filed for a vendor's lien, Held, That, notwithstanding the statute, the defendant could show by parol a purchase from her hus- band and to this extent contradict the deed. Brown v. Harrower . 441 -Public documents.-By the Imperial Statute 14 & 15 Vic., c. 99,
* by the offi- A copy of a book within
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 cer to whose care the original is entrusted." 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 orig- inal had been entrusted. McKilligan v. Machar
-Self crimination. The owner of a judgment alleged to have been fraudulently obtained may refuse to answer questions respecting it. Brown v. Hooper. EXAMINATION OF DEPONENT.—1. An order for the examination of a person who refuses to make an affidavit is discretionary. the circumstances in this case it was refused. 2. Before a person can be said to have refused to make an affidavit it should in its main partic- ulars be prepared and handed to the person asked to make it, with the offer to modify or vary the statements according as he may be prepared to testify. Brown v. Hooper.
Of parties abroad.-An order may be made for the examin- ation of a defendant upon his pleas, even though the defendant resides out of the jurisdiction (affirming Dubuc, J.) It would be a convenient practice to grant such an order upon summons only, but a judge may, in his discretion, grant it ex parte. Service upon attorneys resident abroad as agents for the defendant's attorneys, is not sufficient if their power to receive notice was not established (overruling Dubuc, J.) Miller v. Henry.
EXECUTION.-Independently of 46 & 47 Vic., c. 30, (which is not retrospective), a writ of execution against goods binds from its delivery to the sheriff, except as against the title of any person acquired bona fide and for a valuable consideration before the actual seizure, provided such person had not, at the time he acquired such title, notice that the writ, or any other writ by virtue of which the goods might be sold or attached, had been delivered to, and remained unexecuted in the hands of the sheriff. Young v. Short.
That the plaintiff who notice of an execution
-Notice of.—Upon the evidence. Held, had purchased the crop from the wife had against the husband prior to his purchase. Parenteau v. Harris. . . 329 -Renewal.-Held, Section 103 of the Administration of Justice Act, 1885, is not retrospective. Writs issued prior to that Act must be renewed within one year. Ontario Bank v. Gagnon.
EXEMPTIONS.-Exemption from seizure under execution is a privilege that can be claimed by the debtor only. Young v. Short ..
-The defendant, a married woman, owned a building subject to a mortgage. She occupied a part of it as a home (her husband living elsewhere) and rented the rest to another for use as a shop. There were separate entrances to the two portions of the building. Upon a bill to enforce a registered judgment obtained against the defendant, Held, 1. That the portion occupied by the defendant was exempt from seizure or sale. 2. That the portion rented was not exempt. 3. That the mortgage should be apportioned. 4. Reference to the master
to ascertain exactly the portions occupied and rented and to apportion the mortgage. Warne v. Housley FIXTURES.-Machinery.-The boiler in a sash and door factory was set upon timbers for a foundation, suspended by rods to a frame, and covered over with brick work. It could not be removed without taking down a portion of the building. The rest of the machinery was not attached to the building, but was kept in position by sockets and cleats nailed round the feet of the machines to steady them. The whole con- stituted a sash and door factory and planing mill. Held, Upon a question between a mortgagee of the realty after the machinery was in operation and a subsequent purchaser from the mortgagor by bill of sale, that all the machines were fixtures and part of the realty. Adamson v. McIlvanie.
-Planing machine.-Articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels. (Holland v. Hodgson, L. R. 7 C. P. 328, followed.) After the execution of a mortgage covering a saw mill, the mortgagors brought into the building a planing machine. It was not attached in any way to the freehold, but was connected by belts with the engine which supplied the motive power. Held, That, as between the mortgagee and an execution cred- itor, the machine was a chattel and not part of the freehold. Canada Permanent Loan & Savings Co. v. The Merchants' Bank. . . . . . 285 -Trade.-Held, 1. Prima facie an hotel is part of the freehold. 2, But if it have been erected by a tenant for the purposes of trade it is to be regarded, in the absence of evidence to the contrary, as a trade fixture. 3. The right of a tenant to remove fixtures continues only dur ing his original term, and during such further period of possession by him as he holds the premises under a right still to consider himself as 4. A tenant, who had completed upon the demised premises a building, partly erected by a former tenant through whom he claimed and which was erected and used by both for trade purposes, having
held over after the expiration of the lease to the first tenant, and having subsequently been granted by his landlord a new lease, with the usual covenant to repair and a proviso that the lessee should have the privi lege, at the expiration of the term, of removing any building erected on the demised lands, unless the same should be purchased by the lessor at a price to be fixed by the lessee. Held, That, under the circumstances shown in evidence, the building remained the property of the tenant as a trade fixture, and could be removed by him at any time during the term. Gray v. McLennan.
FOREIGN CORPORATION.-Service on.-Liability of-Held, 1. A writ of summons, in form for service in Manitoba, against a foreign cor- poration having no agent in the Province, is not a nullity, and (semble), the irregularity will be waived by appearance. 2. Such a foreign cor- poration may be sued in Manitoba for work done for the corporation there. 3. It will be assumed that a United States corporation is liable to be sued there in its corporate capacity, until the contrary be shown. 4. Service of a writ may be affected under Con. Stat. Man. c. 31, s. 32, upon a foreign corporation out of the jurisdiction, but the service can- not be made upon a mere clerk. 5. Service of such a writ may, under section 35, be authorized upon an assistant-secretary, but it must appear that service cannot be affected upon one of the proper officers of the company, and the nature of the duties of the office must be shown. 6. An order allowing service upon a foreign corporation out of the juris- diction should be of a notice, not a copy, of the writ. 7. A writ for service in Manitoba may be issued concurrently with one for service upon an alien out of the jurisdiction. 8. An application may be made to set aside the service of a writ upon the ground that it was not served upon the proper officer of a corporation. It is not necessary to await the result of a motion to homologate the service or for leave to pro- ceed. Crotty v. The Oregon & Transcontinental Railway Company. 182 FRAUDULENT CONVEYANCE. Upon the evidence held that a transaction attacked, as fraudulent against creditors, was valid. Steele v. Ramsay
-Parties.-To a creditors bill to set aside a conveyance to a trustee for other creditors, the cestui qui trustent are not necessarily parties defendants. It is discretionary with the court. It is not usual in the style of cause to describe a party in the capacity in which he is made a party, e. g, Executor of &c." Semble. The grantor is not a proper party to a suit to set aside a conveyance as fraud- ulent against his creditors. A bill may be filed by a creditor who has not obtained a judgment, on behalf of all other credit ors, to set aside a fraudulent conveyance. The plaintiff's debt was in respect of two pro- missory notes, to which the grantor, in the alleged fraudulent convey- ance was an accommodation party only. Quære. Should the other parties to the notes have been parties to the bill.
FRAUDULENT CONVEYANCE.—Continued.
grantor has power to revoke and which he attempts to use as a shield against his creditors cannot be otherwise than fraudulent and void against his creditors. Retaining possession of the deed is a very strong circumstance to show that it was really intended as a shield. So also continuing to deal with the property as owner. The fact that the grantee has sold certain of the lands conveyed to him will not prevent a decree being made setting aside the conveyance as to other lands. Quere. Is a bill to set aside a conveyance as fraudulent and for administration of the grantor's estate multifarious? Leacock v. Chambers. . . . . . 645 FRAUDS STATUTE OF.-The Statute of Frauds does not prevent the proof by parol, of the performance of a condition precedent. McCaffrey v. Gerrie.
GAME LAWS. See Constitutional Law. GARNISHEE. See Attachment of debts. HUSBAND AND WIFE.-A judgment debtor worked a farm belong- ing to his wife. The seed grain had been purchased partly by each. The husband paid for a portion of the threshing by his labor. He did all the work, and the horses and implements used were his. Heid, That the crop belonged to the husband and could be seized under an execu- tion against him. Parenteau v. Harris . .
ILLEGAL CONTRACT.—Agreement between one creditor, and the debtor, to purchase debtor's stock from assignee. Toussaint v. Thompson.
INDORSEMENT ON WRIT.-A writ was endorsed "to recover the sum of $3,000, on a covenant contained in a deed for principal and $270 for interest thereon, also for interest on both amounts at ten per cent. per annum from the first day of March last until judgment." Held, Not a sufficient special indorsement. Stewart v. Richard. .
-The special indorsement upon a writ serves as particulars under the common money counts of the declaration; and no further particulars can regularly be delivered without a judge's order. Martel v. Dubord
INFORMATION.-The Attorney-General for the province is the proper informant in a suit to restrain the obstruction of highways. It is not necessary that an information should disclose an interest in the relator. If the relator be also plaintiff, he must have an interest. Attorney-Gen- eral v. Wright.
INJUNCTION.—Foreign Insurance Co.-An injunction will not be ordered to restrain a foreign life insurance company from paying the amount assured to an executor here, when the policy was issued in the foreign country, the premium payable there, the moneys assured pay- able there, and the company was not carrying on business here. Frontenac Loan & S. Co. v. Morice. .
To stay foreign action.-The court has power to stay an action brought in a foreign court, where the party bringing it is within the jurisdiction. But no order will be made unless a clear case of oppres- sion be made out. The plaintiff filed a bill against the defendant as administratrix of S. to set aside a policy of life insurance. After the commencement of the suit the defendants sued the plaintiffs in the Pro- vince of Ontario upon the policy. The insured had resided in Winni- peg, and the plaintiff and the witnesses were now there. The policy was payable in Ontario and the head office of the company was there. The plaintiffs were willing to submit to such terms as the court should think proper. A motion for injunction to restrain the Ontario action was refused with costs. The North American Life Assurance Co. v. Sutherland.
INTEREST.-Construction of mortgage as to interest, whether compound or simple. Canada Permanent v. Hilliard . INTERPLEADER.-Barring claimant for default in security for costs. -The defendant in an interpleader issue was ordered to give security for costs. After long delay an order was made that he do give security within a limited time or that his claim be barred. The Canadian Paci- fic Railway Co. v. Forsyth. .
Bond.—Costs.-1. Form of claimant's bond given and dis- cussed. 2. An interpleader order may direct payment of the sheriff's Ashdown v. Nash . .
By carrier.-The court has no jurisdiction under the Act relat- ing to interpleader by carriers, when the goods are not within the juris- diction. Although no jurisdiction, yet the summons may be dis- charged with costs. Re Brunswick Balke Co. & Martin.
- Costs.--Disposition of costs in interpleader proceedings where distinct issues taken by several execution creditors, the claimant being the same in all. Brown v. Portage la Prairie Manufacturing Com-
-An execution creditor consenting to be barred after an interpleader order has been made, must pay the costs of a sale by the sheriff of the goods seized as well as the costs of the application for the interpleader order, possession money &c. Man. & N. W. Loan Co. v. Routley...
-After declaration the defendants obtained a summons, under 48 Vic., c. 17, s. 54, calling upon various claimants to the fund sued for, to maintain or relinquish their claims. All the claimants abandoned except the Imperial Bank, and an order was pronounced directing the defendants to pay the funds into court, after deducting their costs; that there should be no costs as to those who abandoned their claims; and that an issue should be tried between the plaintiff and the bank. Upon settling the terms of this order the bank also abandoned, and the order, instead of providing for an issue, directed the bank to pay the plaintiff's
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