INTER PLEADER. --Continued.
costs of the application, and the defendant's costs deducted out of the
fund. The claim of the bank was under two garnishee attaching orders
one issued in a suit against D., K. & A., and the other in a suit against
T. K. & M. K. The Hudson's Bay Co. in both suits being the garni-
shees. The plaintiffs in the present suit were T. K. & A. Held, That
the statute was applicable to the bank's claim and that an issue might
therefore have been directed. The defendants were entitled to deduct
their costs, both of the suit and also of the application, so far as related
to the bank, but not of calling in the other abandoning claimants. Where
a claimant does not appear, or appears and abandons, no costs are
awarded. Armit v. The Hudson's Bay Co.
-County Court.-Appeal. -No appeal lies from the County Court
in interpleader matters, Long v. McDougall.
- Interest —A sheriff made money upon a number of writs against
the same debtor, and held it during a contest, between the various exe-
cution creditors, for priority. Held, That the cred. obtaining prior-
ity were not entitled to interest upon their respective claims out of the
fund. Burnham v. Walton .
-Payment into court.-Costs.-The defendant being indebted to
Cr., M. a creditor of Cr., obtained a garnishing order against S. Instead
of paying the money into court, S. retained it, and was afterwards sued
for the same amount by the plaintiff, who claimed as assignee of Cr.
The defendant after issue joined obtained an order requiring M. and
the plaintiff to interplead. The plaintiff succeeded upon the issue. Held,
1. The defendant should pay the whole costs of the action down to the
interpleader issue. 2. M. should pay to the plaintiff the costs of the
issue. 3. No costs allowed to any party connected with paying in or
paying out the money. Clougher v. Scoones . .
-Style of cause.-An application for security for costs of inter-
pleader proceedings, made after the issue of the interpleader order,
must be styled not in the original cause, but in the interpleader issue.
McMaster v. Jasper.
IRREGULARITIES.-Collateral proceeding.—In a suit to enforce pay-
ment of a decree, that decree cannot be attacked upon any ground of
irregularity not affecting the jurisdiction of the court. Frontenac Loan
Co. v. Morice.
JUDGMENT.- Action upon. Semble. An action will lie upon a
County Court judgment. Boyd v. Irwin .
-Application to sign.—Anything which could have been pleaded
by a defendant under the old statutes of set-off, can now be brought for-
ward in answer to an application for leave to sign judgment under the
statute and will prevent an order being made allowing judgment to be
signed. Manoque v. Mason ..
– Application tɔ sign.-An application to sign judgment against
one defendant will not be granted, in the absence of evidence as to the
position of the action with reference to the others. Stewart v. Richard 610
In default of plea. A foreign judgment constitutes a simple
contract debt. Judgment by default, therefore, may be signed in an
action upon a foreign judgment; and also for the costs of a motion
made in a foreign action. Final judgment in default of a plea to a decla-
ration upon the common counts cannot be signed unless particulars
have been served. Judgment in default of a plea cannot include inter-
est subsequent to the issue of the writ although judgment in default of
appearance may. Judgment in default of a plea having been signed for
$4.93 too much it was set aside, and not merely reduced by that amount,
a meritorious defence being sworn to. Martel v. Dubord.
JUDGMENT DEBTOR.—Examination of.-Whether an order will be
made for the examination of a judgment debtor is discretionary with
the judge applied to. The debt being amply secured, an order was
refused and upon appeal this refusal was upheld. Per Dubuc, J.
When a judge has a discretion to exercise and has exercised it, his order
should not be rescinded unless it is found to be manifestly erroneous,
through misconception of some facts or of some principle of law.
Ferguson v. Chambre.
-Refusal to answer questions.—Unsatisfactory answers.—A
judgment debtor upon his examination refused to answer questions as
to his wife's property. Held, That his refusal was justifiable. To a
number of questions the debtor replied that he did not know, or that he
had forgotten. Held, That these answers could not be said to be unsat-
isfactory, although there was a strong suspicion that they were not
altogether truthful. Monkman v. Robinson..
JUDICIAL BOARDS.-By-laws of the Board except those under
which debentures are to be issued, need not be under seal. Eastern
Judicial District v. Winnipeg.
-DISTRICTS.-The Judicial Districts in apportioning among
the municipalities the amounts necessary to be raised have a discretion
as to whether the equalized assessments shall be of the real and personal
estate or of the real estate alone. Eastern Judicial District v.
Winnipeg.
NOTICE.—The court will take judicial notice of the territorial
divisions of the province. Eastern Judicial District v. Winnipeg . . 557
JURY.-Mixed.-Selection of.-The prisoner, a Canadian speaking
French, demanded a mixed jury. There were not upon the panel a
sufficient number of persons qualified in the French language. Instead
of fixing another day for the trial and having summoned the persons
next upon the jury roll, the sheriff called upon a person then in court,
who without objection acted as a jury man. The prisoner was found guilty.
Upon a writ of error, Held, That the trial was a nullity and that the
prisoner must be committed for trial. Regina v. Leveque
LANDLORD AND TENANT.-Distress.-Regularity as against
sheriff.-A lease provided as part of the rent that the lessors should fall
plough the land. For default, the landlords, on the 1st of December,
distrained certain horses. A sheriff under an execution against the
tenants seized the horses. In an action against the sheriff by the land-
lords, Held, That proof of their possession under the lease was not
sufficient. Evidence should have been given that the period for fall
ploughing had expired. Mowat v. Clement
-Denial of landlord's title.—Distress by mortgagee.—The
rule as to a tenant not being permitted to deny the landlord's title
applies only where the tenant obtained possession from the landlord.
Where a person having been in possession is persuaded to attorn under
circumstances which do not warrant it, he may show that the rent was
paid without sufficient ground. After rent became due, the lessor mort-
gaged the property, Held, That the mortgagor could not distrain,
because he had parted with the reversion; nor could the mortgagee
because the rent was not due to him. Dauphinais v. Clark.
LAW SOCIETY.-Retired judge.-Visitors.-The Law Society had no
power in January, 1883, to exact admission fees from a retired judge of
the Court of Queen's Bench. The judges of the Court of Queen's Bench
are visitors of the Law Society, As such visitors they have the power
to visit the society upon every matter in respect of which their Act of
Incorporation gives them the power to act.-(Taylor, J., dissenting.) Re
Miller
LIEN.-I. A workman employed to cut trees into cordwood has not at
common law a lien for his wages. 2. If the workman, however, con-
tracts to haul as well as cut the wood, he may have a lien for the car-
riage. 3. A common law lien will be lost by the sale of the article.
McMillan v. Byers.
-See Livery stable keeper.
LIVERY STABLE KEEPER.—In an action of replevin for the deten-
tion of horses the defendant avowed for money due for board of the
horses. The plaintiff pleaded that "at the time of the said detention
the defendants had not posted up in the office and in two other places
in their said stable a copy of the Act of the Legislature of the Province
of Manitoba, passed in the 47th year of Her Majesty's reign chaptered
15." Held, On demurrer, that the plea was bad, I. Because, Con.
Stat. Man., c. 56, s. 9, not being incorporated with 47 Vic., c. 15, the
lien given by the latter Act does not depend upon the posting up of the
Act. 2. And in any event the Act does not require the copies to be
posted up when the goods are detained, but only when they are brought
to the hotel. Held, Also on exceptions to the avowry that it was unne-
cessary to allege the posting up of the notices. Dudley v. Henderson. 472
MANDAMUS.-Delivery of papers.-Mandamus lies to compel the deliv-
ery of papers by a public officer to his successor. Meetings of a muni-
cipal council are prima facie regular and valid, and a person acting as
clerk at these meetings is, de facto, the clerk. A by-law requiring the
presence of the reeve as a condition of the transaction of business at a
meeting, is invalid. Unless the right of the relator to the papers is clear
a peremptory mandamus will not be ordered, but only an alternative
writ. Regina Ex-Rel Pacaud v. Dubord.
MARSHALLING LIABILITIES. See Vendor and purchaser.-Dis-
charge of liabilities.
MASTER AND SERVANT.--Dismissal.—Drunkenness.-The defend-
ants engaged the plaintiff as choir master.
Upon the first occasion that
the choir met for practice the plaintiff was drunk and unable to perform
his duties, whereupon he was immediately dismissed., Held, In an
action for wrongful dismissal, that the dismissal was justified by the
plaintiff's conduct. Martin v. Lane and the Churchwardens of All
Saints Church.
314
MECHANICS LIEN.—Assignment by contractor.—An assignment by
the contractor of the contract money, made before the registration of a
lien by a sub-contractor, takes priority over such lien. Anly v. Holy
Trinity Church.
Completion of work.-When the completion of
the work is alleged as of a particular day which is a considerable
time after the bulk of the work was performed, clear and satis-
factory evidence must be given to enable the court to find the date.
2. Upon the evidence held that the date was not sufficiently proved.
Upon rehearing. Held, That the evidence showed that the main work
was not completed before the date alleged, and that although some lev-
elling of the earth around the building was done upon the two succeed-
ing days, the plaintiff was entitled to his lien. 2. In a suit by a sub-
contractor it is not necessary at the hearing to prove that there is any-
thing due by the owner to the contractor. That is a matter for the
master's office. McLennan v. The City of Winnipeg
-Material.-A material man has no lien unless the goods were
supplied for the purpose of being used in the particular building upon
which he claims to have a lien. Sprague v. Besant ..
-Sub-contractor.- Material.- Public buildings. Under a
building contract the proprietor (the City of Winnipeg) was to pay 85
per cent of the value of the work and materials as the structure pro-
gressed; and the balance of 15 per cent. upon the whole of the work
being completed to the satisfaction of the City, and acceptance of the
work by the corporation. The contractor failed to complete the work
having at that time received payment to the extent of 85 per cent. Held,
That a sub-contractor had no lien in respect of the 15 per cent. Dur-
MECHANICS LIEN.--Continued.
ing the progress of the work another contract was made between the
proprietor and the contractor for certain extra work. In this contract
there was an agreement for payment of 85 per cent during the progress
of the work, nothing was said with reference to the 15 per cent., but
there was a general provision "that in all other respects said original
contract shall not be varied, altered or changed, but be and remain in
full force and effect." Held, That the 15 per cent. was payable upon
completion of the work, and this having been completed was available
to the sub-contractor. By the terms of the contract any materials placed
upon the ground were to be considered in the possession of the city,
and were to be considered in the progress estimates. Held, That a
material-man was not bound to show that his materials were used in the
building—delivery upon the ground for the purpose of being used was
sufficient. Held, That the city hall in Winnipeg might be sold under
execution against the city, and was therefore subject to sale in pursuance
of the Mechanics' Lien Act. The land upon which the hall was erected
was granted to the City by a deed which provided that it was to be used
only for the purpose of the erection thereon of a market building and
for other public purposes, and that if the City should use the land for
any other purposes and uses than those connected with the public pur-
poses and uses of the corporation the land should revert to the grantors
their heirs and assigns. Held, That there being some estate in the
lands vested in the city, the plaintiff was entitled to a lien to the extent
of such estate and to a sale of it. McArthur v. Dewar . .
MORTGAGE.—Leases by mortgagor.—A garnishing creditor of the
mortgagor is entitled as against the mortgagee to rent due in respect of
a lease of the mortgaged premises made after the mortgage (in the sta-
tutory form) by the mortgagor. Green v. Cauchon...
Liability of purchaser of equity of redemption.—M. mort-
gaged to McK., who assigned to the plaintiffs, covenanting that the
money would be paid. The mortgagor conveyed to P., subject to the
mortgage; the expressed consideration was $3,500, which was the
amount agreed to be paid for the equity of redemption; there was no
covenant by P. that he would pay the mortgage. P. afterwards made
payments to the plaintiffs on account of interest, and to obtain an exten-
sion of time for payment. Upon a bill for foreclosure, and for a per-
sonal order against M., McK. and P., Held, 1. No personal order
could be made against P. for want of privity between him and the
plaintiffs. 2. Nor as against M. or McK., there being a complete
remedy against them at law. Boultbee v. Shore discussed.
Estate Loan Co. v. Molesworth.
MORTGAGE SUIT.—Foreclosure iustead of sale,—In a mortgage suit the
master after hearing evidence ordered a sale instead of foreclosure, as
being more beneficial for infant heirs. Upon appeal, Held, That the
evidence showed that a sale would not realize the plaintiff's claim, and
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