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Prac. Ct.] different if it were a simple bond upon which judgment could be recovered and execution issued in the ordinary manner without proceeding by scire facias. He referred to 1 Saund. 58 b, and Foster on Scire Facias. The statute which gives interest on a judgment does not apply in cases like this, where execution cannot issue for the whole amount of the judgment recovered, and where proceedings by scire facias must be had.

RANDALL ET AL. V. BURTON ET AL.- -WILSON ET AL. V. DEWAR.

He contended that the case of Mc Clure v. Dunkin was not analogous, and cited Wilde v. Clarkson, 6 T. R. 304; Brunscombe v. Scarborough, 6 Q. B. 13; White v. Sealy, Dougl. 49.

MORRISON, J.-The only point on which I had any doubt was with regard to the $50 expenses of levying, arising from the peculiar wording of the 8th section of the Statute of Wm., and from what is said in Foster on scire facias, page 39; but I think, under the 270 sec. of our Common Law Procedure Act, which provides that upon any execution against the person, lands, or goods the sheriff may, in addition to the sum recovered by the judgment, levy the poundage fees, expenses of the execution, &c., as well as from the reason of the thing, that the defendants were liable to pay such expenses over and above the amount of the penalty; and I think I am borne out in that view from what is said in Bac ab. 2 vol. 335, Title Costs, L.: "If the judgment be for a penalty the plaintiff has a right to recover the whole of his debt, independent of the expenses of the execution, which in that case must be sustained by the defendant," and refers to marginal note "a," which cites 43 Geo. III. c. 46, s. 5, which is a provision almost similar to the Common Law Procedure Act, sec. 270. It seems to me it would be very unreasonable were the rule otherwise. I am therefore of opinion that the defendants were not entitled to apply the expenses of levying in reduction of the amount due on the penalty. As to the other point, the whole current of authority shows clearly that the plaintiff having sued on his bond and having recovered judgment for the penalty, under the statute of Wm., the whole amount he is entitled to recover is limited to the penalty, which in the present case is $3,000. The plaintiffs also contended on the argument that they were entitled to compute and charge interest on the penalty and the amounts remaining due thereon from time to time. No authority was cited to support that view, nor can I find any; while the principles upon which all the decisions rest go to show the contrary; see Clark v. Seton, 6 Ves. 411. I am therefore of opinion that the $50 paid into court should be paid to the plaintiffs. That all further proceedings in this cause be stayed, and that satisfaction be entered of record on the judgment roll in this cause. As the question is a new one, no costs are allowed to either party on this application.

WILSON ET AL V. DEWAR.

Interpleader-Notice of trial-Affidavit of merits. Notice of trial is as essential in interpleader and feigned issues as in ordinary cases. [P. C., M. T., 1866.]

This was an interpleader issue, the order in which was made on the 18th day of May last,

[Prac. Ct.

whereby it was ordered, that the claimants should be the plaintiffs and the execution creditor the defendants, and that the usual issue was to be prepared by the plaintiffs, and that it should be tried at the then next assizes for the county of Halton. The issue was entered for trial at Milton assizes, and a verdict taken for the plaintiff, no person appearing on the part of the defendant. No notice of trial was served or given by the plaintiffs to the defendant, or his attorney, of the intended trial.

During last Michaelmas term, Beaty obtained a rule nisi, to set aside the verdict for irregularity, with costs, on the ground that the issue herein was entered for trial without any notice of tria! having been given.

cases.

M. C. Cameron, Q C., shewed cause. Notice of trial is not essential in interpleader The order directed the issue to be tried at a particular assize, and the making up, delivery and return of the issues is in itself a sufficient notice of trial. Even if a notice is necessary, a verbal one, under the circumstances, was sufficient, and that was given, as appears by affidavits filed.

As to the practice laid down in Ch. Arch., p. 903 (1866), the direction there given is under a statute different from ours, and the order there would not state when the trial would take place. No case is cited in support of the Editor's position. The defendant's affidavit of merits is also insufficient. In case of decision being adverse, he would ask that the order might be amended to allow the plaintiff allowed to go down to trial at the next Halton assizes.

He filed affidavits to account for the want of notice, and shewing that the parties were practising on easy terms.

Beaty, contra.

As to affidavit of merits in interpleader cases, and the necessity for same in moving against verdicts, see Proudfoot v Harley, 11U C. C. P. 389: Vidal v. Bank of Upper Canada, 15 U. C. C. P. 421; Consumers' Gas Co. v. Kissock, 5 U. C. Q. B. 542.

The practice has always been in this country and England, to give notice of trial in interpleader cases. He referred to Ch. Arch., p. 90, and p. 1398, to be read in connection therewith, Verbal notice is insufficient, see R. G., No. 131. and even if parties on easy terms, it would make no difference.

As to the terms which were asked to be imposed, he cited Sewell v. B. B. & G. R. W. Co., 3 U. C. L. J. 29.

MORRISON, J.-The only question to be determined is, whether in interpleader cases a notice of trial, as in other cases, is necessary. 1 can find no direct authority; but the text-books, in referring to notices of trial, say it must be given in all cases: Lush 492, and in Arch. Prac, 11 ed., p. 891, under the heading of "Proceedings upon a feigned issue," the practice is said to be after the issue is settled between the parties to indorse on the copy served a notice of trial, as in ordinary cases; and in looking into Gilbert's Bills of Costs, in Sheriff's Interpleader Cases, I find the charge for the notice of trial; and the Master here informs me, the practice is to give

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notice of trial, and it is allowed as a taxable item.

Then, as to the contention of the plaintiff's that it is unnecessary to serve notice of trial, as the judge's order states that the issue shall be tried at the particular assizes. In cases of peremptory undertakings to try at particular sittings, a fresh notice of trial is required: 1 H. B. 222; 1 Dowl., P. C. 148-same vol. 444; and in Ellis v. Trusler, 2 W. B. 798, it was held that a notice of trial must be given by plaintiff, notwithstanding a special day is fixed for the trial by rule of court. The plaintiff in the issue has the conduct of the cause; it is his duty. I take it, to enter the record for trial; he may decline to go to trial or contest the right of the defendants, and it is only reasonable and certainly convenient that he should give a notice of trial, in order that the defendants may prepare for the trial of the issue; any other practice would lead to confusion and uncertainty. I am therefore of opinion that a notice of trial was necessary, and as the plaintiffs did not give such notice, this rule must be made absolute with costs. As the assize mentioned in the interpleader order has passed, and considering the special circumstances mentioned in the affidavit filed by the plaintiffs, it will be part of the rule that the issue shall be tried at the next assize for the county of Halton, and that the interpleader order must be amended accordingly.

COMMON LAW CHAMBERS.

(Reported by HENRY O'BRIEN, Esq., Barrister-at-Law and Reporter in Chambers.)

ANONYMOUS.

Ejectment-Con. Stat. U. C., cap. 27. ss. 57, 58-Lease with right of purchase-Holding over.

The defendant went into possession as tenant of A. under a lease with a right to purchase at a certain sum. He elected to purchase and remained in possession for about a year after the determination of the lease, when plaintiff, the mortgagee of the lessor, brought ejectment and demanded security for costs and damages, as against a tenant overholding.

Held, 1. That the plaintiff was entitled to the relief asked, as the defendant's character as tenant had not been that of a vendee. 2. That it made no difference that the plaintiff was mortgagee of the lessor.

[Chambers, 1864.]

This was an action of ejectment. The plaintiff obtained a summons calling on the defendant to show cause why the defendant, within such time as the presiding judge in Chambers should fix, should not enter into a recognizance, by himself and two sufficient sureties in a reasonable sum, conditioned to pay the costs and damages, which might be recovered by the claimant in this action, in pursuance of the provisions of the statute in that behalf.

The plaintiff filed a lease made, dated the 15th of May, 1860, between A. of the first part, and the defendant, described as a Barrister-atlaw, of the 2nd part, by which A. let the premises in question in this cause to the defendant for three years at the rent of £50 payable quarterly. There were the usual covenants to pay rent, &c. &c.

The lease then concluded with a clause that the defendant should have the right of purchas

[C. L. Cham.

ing the premises at any time during the term that he might elect for £837 10s.

A. covenanted for himself, his heirs or assigns, that he or they would, at any time during the term, whenever the defendant should signify his intention to purchase, by mailing a notice of such intention addressed to A. at his last place of residence in Canada, sell and convey in fee simple, free from dower and all other encumbrances whatsoever, the said premises to the defendant in fee for the sum of £837 10s., psyable by the defendant after having made such election to purchase.

It was sworn that the defendant had enjoyed the premises during the said three years, and that his interest had expired.

That some short time before the expiration of the lease the defendant gave notice to A. of his intention to purchase the premises, and demanded an abstract of title; which the defendant says he proceeded to have made out but had great difficulty in making it.

That about the 29th of September. 1863, the abstract was served on the defendant-that it was afterwards corrected and served again about the 13th October thereafter, and that he has taken no objection to it.

The affidavit then set out various facts bearing upon the case and material to be considered, because they have not been answered by the defendant, to the effect that the defendant never had any intention of purchasing, and was not acting in good faith, and was insolvent.

The ejectment summons was issued on the 28th of April, 1864, and served on the 30th of the same month.

Before the writ was sued out possession was demanded of the defendant, but he refused to give it up.

He was also served with a notice informing him that he would be required to give security for the costs and damages of this action.

The defendant appeared to the writ and put in a notice of title, by which he denied the plaintiff's title, and set up title in himself, under the agreement to purchase.

John B. Read showed cause, and insisted on the right to purchase upon which the defendant had acted, having put an end to the relation of landlord and tenant between the parties, and therefore the defendant, although it were admitted he was holding possession without a legal title, was yet not holding over his possession as a tenant after the expiration of his tenancy, and could not therefore be called upon to give the security demanded of him; but whatever A. might have been entitled to, this claimant was never entitled to, as he was not the lessor.

Hector Cameron for the plaintiff, contended that the existing demise by deed was not put an end to at law upon the election made by the defendant to purchase; that this lease expired by efflux of time, notwithstanding the election. so made, and the defendant having remained in possession after the expiration of his tenancy, was a person holding over within the meaning of the statute. He referred to Robinson v. Smith, 17 U. C Q B. 218; Henrehan v. Gallagher, 10 Grant 488, and afterwards on appeal.

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ADAM WILSON, J.-The defendant had a term created by deed for three years from the 15th of May, 1860, which would therefore continue to subsist for that period as a valid and legal estate unless expressly determined by surrender or other effectual method.

The defendant contends that the election which he has exercised to purchase the property in fee simple has so put an end to the term of years, so that from the time when he gave notice of his election to purchase he no longer stood in the relation of tenant for years to the owner of the reversion but in the character of a vendee of the freehold, and when the three years expired by lapse of time that he did not then hold over as a tenant against his landlord, but was in possesas such vendee.

The statute cap. 27 of the Consolidated Statutes for U. C., sec. 57, enacts to the effect following: In case the term or interest of any tenant of any lands, holding the same under a lease or agreement in writing for any term or number of years certain or from year to year expires, or is determined either by the landlord or tenant by regular notice to quit, and in case a demand of possession be made upon the tenant, or any person holding under him, and in case the tenant or person refuse to deliver up possession, and the landlord thereupon proceeds by action of ejectment to recover possession, he may at the foot of the writ address a notice to the tenant or person requiring him to find such if ordered by the court or a judge. Sec. 58. Upon the appearance of the party,

and upon the landlord producing the lease or agreement, and upon affidavit that the premises have been actually enjoyed under the lease or agreement, that the interest of the tenant has expired, and that possession has been lawfully demanded, the landlord may move the court or apply to a judge for a rule or summons for the tenant or person to show cause why he should not enter into a recognizance by himself and two sufficient sureties in a reasonable sum conditioned to pay the costs and damages which may be recovered by the claimant in the action; and the court or judge may on cause shown, or on affidavit of the service of the rule or summons if no cause be shewn, make the same absolute in whole or in part, and order such tenant or person within a time to be fixed upon, on consideration of all the circumstances, to find sach bail with such conditions and in such manner as shall be specified in the rule or summons, or the part of the same so made absolute.

When the defendant elected to buy under the provisions of the lease his right to purchase was the reversionary interest, he did not then necessarily and immediately put an end to his estate for years. In equity no doubt he did do so, or perhaps it might rather be that he would do so or not according as the vendor would or would not be able to perfect the title, and until it was known whether this would be done or not the term would be in suspense and the rent also, as consequent upon it. It might not be beneficial to the tenant that his term should be absolutely determined by his election to purchase without any regard to whether he was to get the benefit of his purchase or not; for in this manner he might lose the interest on a long beneficial leasehold merely by electing to buy the reversion,

[C. L. Cham.

while the vendor might never be able to perfect his title to it during the time of the treaty for the purchase of the reversion. The term and rent would in equity probably both be suspended, and the tenant would during such suspense be in as a vendee and at interest instead of rent Townley v. Bedwell, 14 Ves. 591.

Besides this it is clear that A. had first to make a good title to the defendant before their relative positions were to be altered, for he is to convey free from all encumbrances, and the defendant is to pay the purchase money after electing to purchase, and "immediately upon receiving such conveyance free from all encumbrances."

The mere election to purchase, particularly where from a title having to be first made perfect by the vendor, or from any other cause, the tenant may never be bound to accept the reversion does not operate as a surrender of the term, the term still subsists: Doe d. Crey v. Stanion, 1 M. & W. 695; and rent is still distrainable at law for the same: Tarte v. Darby et al., 15 M. & W. 601. The term, however, would expire by efflux of time on the 15th of May, 1861

The question then arises, to what claim is the defendant's prolonged possession referable?

Is it in right of his agreement to purchase, or is it a mere tortious holding over after the expiration of his tenancy?

He was never let into possession as a vendee. He had the right of possession as a tenant when he elected to become a vendee, and his holding over after the term cannot, without the consent of his landlord, be converted by the defendant into an actual assent by the landlord to the rightfulness of such an occupation, commenced at a time when the landlord could neither give nor withhold his consent.

It appears from the papers filed that the defendant, whatever the landlord meant, intended to keep the possession as a vendee, presuming he had the right to do so, but I think the affidavit filed requires me to consider the proceedings of the defendant with a good deal of caution.

In an ordinary case I might feel much difficulty in saying that the possession of a person having the right to purchase and having elected to purchase, being in possession for about one year after the determination of his lease before the landlord disputed his possession, and negotiating all this time respecting his rights as vendee, was and could only be in the possession of such person as a tenant wrongfully holding over. Yet on the facts of this case and the character of the defendant's possession not being a fact or act in law, but a matter of fact only, to be ascertained and determined by the circumstances, I do not think I can say that his character of tenant has ever been clearly and irrevocably altered, so that I think I ought to hold that this defendant is still a tenant wrongfully holding over the possession against his landlord, and that he is within the provisions of the statute in question.

I find no difficulty in extending the same rights to this claimant, who is a mortgagee in fee from A., the lessor, under a mortgage executed before the defendant's lease expired, which I would have extended to A. if he had still continued the landlord, although this is the ground upon

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which Mr. Read most strongly opposed the present application.

The defendant should therefore be ordered to find security for the equivalent of the rent at $200 a year from February, 1863, when it was last paid, till November, 1864. when possession may, if it can be, be recoverable, making $350; and in the further sum of $100 for the costs of the suit, making a total of $450. The recognizance will be in a penalty in double this amount, conditioned for the payment of the costs and damages of the suit. The two sureties must also become respousible in the like penalty, but in the same recognizance jointly and severally for the due payment of the costs and damages of this suit, and that this recognizance and security be perfected by the sixteenth day of July instant.

IN RE LAMB, AN INSOLVENT.

Insolvent Act of 1864-Applicatim hy insolvent for discharge -Frawtulent preference-Neglect to keep proper books of accounts-Measure of punishment.

It appeared. on an application by an insolvent for his discharge under the Insolvent Act of 1864. that he had within three months before his assignment paid one of his creditors in full under such circumstances as was considered to amount to a fraudulent preference. and had neglected to keep proper cash books or books of account suitable to his trade. The County Judge granted a discharge suspensively, to take effect, four months after the order made.

Upon an appeal from this order by a creditor the judge in Chambers thought that the judge below had acted with extreme leniency, and though he would not interfere with the order that he made, dismissed the appeal, but with

out costs.

Remarks upon the breach of duty in not keeping proper books of account which should be severely punished. The requirements of the act on debtors asking for discharge sould be peremptorily insisted on.

[Chambers, Nov. 27, 1866.]

The facts of this case are fully set out in the petition of the creditors of the insolvent, who appealed against the order made by the judge of the County Court of the United Counties of Lennox and Addington, granting to the above insolvent a discharge, suspensively to take effect on 1st February, 1867.

The petition stated:

That the above named insolvent, Thomas Lamb, on the first day of June, in the year of our Lord 1865, made an assignment under the Insolvent Act of 1864, to Henry Thorp Forward, of the Town of Napanee, in the County of Lennox and Addington, Esquire.

That the petitioners were at the time of the said assignment, and previously thereto, and have ever since been, and still are creditors of the said insolvent to a large amount, and duly proved their claim against him before the said assignee within the time and in the manner prescribed by the said Act.

That the insolvent gave notice of his intention to apply to the judge of the County Court of the Counties of Lennox and Addington on the tenth day of August, A. D. 1866, for a discharge under the said Act; and on that day he presented to said judge in his Chambers, in the Town of Napance, a petition for such discharge by his attorney ad litem, which said petition was in the words and figures following, that is to say:

[C. L. Cham.

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60

That one year has elapsed from the date of the said assignment, and your petitioner has not obtained from the required proportion of his creditors a consent to his discharge.

"That your petitioner has given notice of his intention to apply for his discharge according to the provisions of the said act, and has complied with all the provisions and requirements of the said act

"Your petitioner therefore prays that he may obtain an absolute and final discharge under the above mentioned act.

"Dated at Napanee this 10th day of August, A.D. 1866.

That on the said tenth day of August, at the time of the presentation of the said petition, the petitioners appeared, by William Albert Reeve, of the Town of Napanee, Esquire, their counsel, and opposed the prayer of the said petition. Petitioners, examined the said insolvent upon oath before the said judge.

That after said insolvent had been so examined and had been cross-examined by his attorney ad litem, the said application was adjourned until the tenth day of September, A. D. 1866, to enable the petitioners to produce certain witnesses for the purpose of examining them before the said judge on the said application, and upon the said tenth day of September the said William Albert Reeve did produce certain witnesses before the said judge, and examined them on behalf of the said petitioners touching the affairs of the said insolvent, which said witnesses or most of them were cross-examined by the attorney ad litem for said insolvent. [A copy of the examinations of the insolvent and the witnesses was annexed, but the matter of thein is sufficiently stated hereafter]

That after hearing the evidence and the arguments of counsel for the said insolvent, and for the petitioners and other creditors of said insolvent, the said judge of the County Court of the County of Lennox and Addington, on the sixth day of October, A D. 1866, in presence of counsel aforesaid, delivered his judgment in writing upon the matter of said application as follows:

"In the matter of Thomas Lamb, an insolvent. "The petioner made his assignment on 1st June, 1865, and having been unable to obtain a composition and discharge from his creditors, now seeks for an order from the court granting his discharge.

"The prayer of his petition is opposed by several creditors on the grounds of f audulent retention or concealment of part of his estate, prevarication and false statements in examina

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tion, fraudulent preference of particular creditors, and lastly, of deficient books of account.

On hearing the parties and attentively considering the facts disclosed on the insolvents examination before me, I see no reason to believe that he has fraudulently concealed or retained any part of his effects, nor do I think that he was guilty of any prevarication or false statements, on the contrary the insolvents conduct since his assignment seems to me to be fair and honest, and not liable to the censures attempted to be cast upon it.

There are, however, two charges made against the insolvent respecting his conduct before the assignment to which no answer appears to be given. It is shewn that in the month of April, 1865, within less than three months before the assignment, the insolvent being indebted to his shopman, McCan, in $300 for wages and borrowed money, gave him promissory notes of bis customers to the amount of $400, in full satisfaction of the debt. There can be no doubt that this transaction was wholly illegal and amounted to a fraudulent preference; however natural it may be for a man pressed by his servant, who was also his creditor, for wages and loans to satisfy such a claim in the way the insolvent did, yet the provisions of the Insolvent Act of 1864 clearly point out that such a payment is a fraud upon the other creditors.

The second charge made against the insolvent is, that he did not keep a cash book or other sufficient books of account suitable to his trade, which is not denied by the insolvent.

Under these circumstances, although I do not consider with the creditors, that the insolvent should never be discharged at all, yet it seems right that some penalty should be inflicted in consequence of the faults committed by him in the above mentioned instances I therefore order that his discharge shall be suspended until 1st February, 1867, and will sign an order granting his discharge suspensively to take effect on that day."

That in accordance with the said judgment the said judge granted and signed an order, bearing date on the said sixth day of October, A D. 1866, as follows:

"INSOLVENT ACT OF 1864.

"In the matter of Thomas Lamb, an insolvent. Whereas, Thomas Lamb, of the Town of Napanee, in the County of Lennox and Addington, Merchant, made an assignment under the Insolvent Act of 1864, bearing date upon the first day of June, in the year 1865; and whereas after the expiration of one year from the date of the said assignment, having given due notice thereof, and having in all respects complied with the provisions of the said Act, the said Thomas Lamb did on the tenth day of August, in the year one thousand eight hundred and sixty-six, present his petition to me, James Joseph Burrowes, Judge of the County Court of the County of Lennox and Adlington, praying for his discharge under the said act, and whereas the said insolvent has undergone a full examination before me touching his affairs.

Now therefore I, the said judge, after hearing the said insolvent and such of his creditors as objected to his discharge, and all the evidence adduced as well on the part of the said creditors

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as of the said insolvent, and having duly considered the said allegations and proofs, do hereby according to the form of the said Insolvent Act grant the discharge of the said Thomas Lamb suspensively, and do order that such discharge shall be suspended until and shall go into operation and have effect upon and after the first day of February, in the year one thousand eight bundred and sixty-seven.

"Witness my hand," &c.

The petitioners being dissatisfied with the said order and decision, made an application to a judge of one of the Superior Courts of Common Law, presiding in Chambers in Toronto, to be allowed to appeal from the said order and decision, and on the seventh day of November, A.D, 1866, an order was granted by the Chief Justice of Upper Canada, allowing the petitioners to appeal to one of the judges of the Superior Courts of Common Law in Chambers from the said order.

That since the allowance of the said appeal, and within five days therefrom, the petitioners gave security in the manner required by the said Insolvent Act of 1864, that they would duly prosecute the said appeal, and pay all costs.

The petitioners therefore prayed that the said order and decision of the judge of the County Court of the County of Lennox and Addington might be revised, and the same reversed and the discharge of the said insolvent, Thomas Lamb, under the said art might be absolutely refused, or that such order be made in the matter as should seem meet.

Osler for the appellants.

Holmested for the insolvents.

No cases were cited by either party.

HAGARTY J-The learned judge below considered the insolvent's conduct to be reprehensible in not keeping proper books of account, and suspended his discharge for six months I do

not think it wise to interfere with the exercise of such a discretion on the part of a judge who has heard the examination of the insolvent and been cognizant of the various proceedings in the case, except in a very clear case in which the appellate jurisdiction is necessarily invoked to prevent an undoubted injustice.

I think that the learned judge acted with extreme leniency, and possibly took a milder view of the bandrupt's misconduct than I should have done, judging wholly from the papers before me. Had he, with his superior opportunities of forming a correct opinion, passed a much more severe sentence I should certainly not interfere with it on the insolvent's application I think the insolvent's neglect to keep proper books a most serious breach of duty, causing great possible injury to his creditors, and tending to raise strong distrust of his integrity. The evidence of his being a very illiterate man suggests the only possible excuse, and weighed, I presume, with the learned judge. It might perhaps be said that it was not very prudent for his creditors to trust a man so unfit for the conduct of business or the keeping of accounts with such large quantities of goods ou credit. I do not differ from the learned judge's view as to the alleged preference. As to the neglect to keep proper books I think it would be well always to punish such a

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