Page images
PDF
EPUB
[blocks in formation]

breach of duty in a severe and exemplary

manner.

We have in this country in our legislation done everything to favour debtors and render the escape from liability as easy as possible to them. It will be well at all events that the very easy requirements of the Insolvent Act on debtors asking for their discharge should be peremptorily insisted on, and proper punishment awarded to any breach of the trader's duties in conducting his business.

I gladly avail myself of the power given me by sub-sec. 6 of sec. 7 of the act, and, while feeling bound to dismiss the appeal, do so without

costs.

I think Mr Lamb's creditors had just ground for feeling indignant at his conduct and in opposing his discharge, and endeavouring to have some punishment inflicted upon him.

CHANCERY REPORTS.

(Reported by ALEX. GRANT, Esq., Barrister at Law, Reporter to the Court.)

FOWLER V. BOULTON.

Practice Examination of parties

Where a plaintiff, though duly served with subpœna and the examiner's appointment, does not appear to be examined under 22nd Order of the 3rd of June, 1853, the defendant's motion that he do attend or staud committed, is made ex parte, unless the court sees fit to direct notice to be given.

A defendant has a right to examine the plaintiff as soon as his own answer is filed, though there may be other defendants who have not answered; and it is not necessary to serve such other defendants with notice of the examination. The plaintiff by amending his bill does not postpone his liability to be examined until after the time for answering the amendments expires.

Service on the solicitor of a copy of the examiner's appointment for the examination of a party is a sufficient notice to the solicitor; and it is not necessary that the appointment should name the parties at length.

Two of the defendants in this case, having filed their answers, obtained an appointment from one of the examiners for the examination of the plaintiff under the 22nd General Order of the 3rd of June, 1853, section 7, as regulated by the General Order of the 6th of April, 1857. This appointment was served on the plaintiff's solicitors, and was served on the plaintiff himself with a subpoena ad test. The plaintiff did not attend at the time and place named in the appointment, but his counsel attended, and objected that his client was not bound to attend for several reasons which the examiner set forth in a certificate of the facts, and which are stated in the Vice-Chancellor's judgment.

Mr. McLennan, for the defendant, thereupon moved ex parte for the usual order, that the plaintiff do attend at his own expense and be sworn and examined, or stand committed.

Mr. S. Blake, for the plaintiff, being present, was allowed to oppose the motion. He submitted, also, that the motion could only be made on notice.

MOWAT, V, C.-A motion of this kind is made ex parte where the person to be examined is a witness; 2 Daniel's Practice, Perkins' ed. 1057; and an ex parte motion has been allowed in several cases where the person to be examined

[Chan. Rep.

was a party to the suit. In one case of the latter class notice is said to have been required; but this appears to have been done not on the ground that a notice was necessary, but that the court, in the exercise of its discretion, thought it to be expedient in the circumstances of that particular case. A different rule would increase expense and delay, and would afford additional temptation to unwilling parties to try the experiment of declining to attend, and to put opponents to the inconvenience, trouble and expense which such a course imposes.

The first objection which the plaintiff's counsel made before the examiner was, that the plaintiff had amended his bill since these defendants answered, and that the time for answering the amendments has not expired. I see nothing in the order to sustain this objection. The examination is a substitute for the old practice of filing a cross-bill for discovery; and in such case the rule was, that the defendant to the original bill was not entitled to an answer to the cross-bill until he answered the original bill, but if the plaintiff in the suit amended his bill after the defendant answered, this was no ground for postponing his own answer to the cross-bill. see no reason why the amendmont should have a different effect in this respect under the substituted proceedings which have been adopted in this country.

I

The second objection was that the plaintiff's solicitors had not been served with sufficient notice of the intended examination, but only with a copy of the examiner's appointment, and that this appointment was entitled "Fowler v. Boulton," instead of being entitled with the names of all the parties to the suit in full. In proceeding before the Master, before whom all examinations were formerly taken in this country, his warrant is the only notice that is served on the solicitors, 2 Smith's Pract. 149, 2nd Ed. 150, and never gives the full style of the cause, Bennett's Master's Office, p. 1, App. There are many other notices and papers in a cause for which by the English practice this short title is sufficient, 2 Ayckbourne's Chancery Practice, pp. 73, 90, 93, 103, to 100. I think there is neither authority nor reason for holding the notice in the present case to be insufficient.

The third objection is, that the defendants who wish to examine the plaintiff have not served the other defendants with notice of his examination; but I see no ground for holding such notice to be necessary: the examination is not evidence against the defendants; the Orders of the Court do not declare that notice of it is to be given to them; if a cross-bill for discovery were filed under the old practice, the other defendants would not have been parties to it; and if, in addition to these considerations, I may compare the convenience of each course, as a guide for ascertaining what the rule is, I think that the balance of convenience is not in favor of what the plaintiff contends for. So also as to the expense. The rule contended for would add to the expense of almost every examination where the defendants do not appear in the suit by the same solicitor, and it would, I think, be very seldom, and only in very special cases, that the opposite rule would, in practice, render necessary the expense of a second examination of the plaintiff.

Chan. Rep.]

MCNABB V. NICHOLL-MORLEY V. MATTHEWS.

To these three objections stated to the examiner Mr. Blake, in his argument before me, added a fourth, viz., that the plaintiff is not liable to examination until the answers of the other defendants are in. This objection seems to me to have no better foundation than the others. The analogy in case of a cross-bill is against it. The language of the General Order is not in its favor. This Order provides that any party plaintiff may be examined at any time after answer: and any party defendant may be examined at any time after answer," &c. It is clear that the expression "after answer," in the second case referred to, does not mean after all the answers are filed; and the fair inference is, that the same expression in the first case had not that meaning either. I think that after any defendant files his answer, the plaintiff may, under the order, examine such defendant, and that the defendant may examine the plaintiff, whatever may be the position of the cause in reference to the other defendants,-over which the plaintiff, and not the defendant, has the control.

An affidavit must be filed of the service of the subpoena and appointment. The usual order will then go.

MCNABB V. NICHOLL.

Pleading-Pro confesso-Statute of frauds. The plaintiff by his bill alleged that certain lands had been conveyed to the defendant to hold in trust for the grantors, and that the defendant had not given any value or consideration therefor. the conveyance being made in order to prevent the gran or foolishly and improvidently disposing of or parting with his estate; but did not allege any writing evidencing the trust. The defendant having suffered the bill to be taken against him pro confesso. Held [Per Vankoughnet, C.] that the facts stated, remaining undenied, were sufficient to enable the court to declare the defendant a trustee, and that it was not indispensible that the bill should allege that the trust was evidenced by any writing.

[ocr errors]

This was a hearing pro confesso. The bill in the cause alleged that Peter McNabb, deceased, having, during his life time, been seized in fee of the east half of lot No 6, in the 4th concession of the township of Erin, containing 100 acres. did, on the 14th of February, 1851, convey this property to the defendant, without his giving any value or consideration therefor, and upon trust for him, the said Peter McNabb, and for his benefit, so as to prevent the said Peter McNabb foolishly and improvidently disposing of or parting with the said lot." The bill contained further allegations, to the effect that the conveyance was solely for the purpose of enabling the defendant to hold the lot in trust for Peter McNabb. It alleged the decease of Peter McNabb intestate, and that plaintiff and others were entitled as heirs at law; the occupation of the property by defendant, and his refusal to convey to the plaintiff and other heirs, and the pretence set up by the defendant, that the lot had been conveyed to him absolutely. The prayer of the bill was, that the defendant might be declared a trustee for the plaintiff and the other heirs of Peter McNabb.

On the cause being called on,

Mr. Crooks, Q. C., for the plaintiff, asked for a decree as prayed.

VANKOUGHNET, C.-I entertain no doubt that it was not necessary that the bill should contain

[Chan. Rep.

an allegation that the trust was evidenced or admitted by writing. The plaintiff states the trust in his bill, and this is all that is necessary for the purposes of pleading. He has then to prove the trust by proper evidence. The question here is, whether any evidence is necessary, the bill not having alleged the trust to be in writing, and the defendant having allowed it to be taken pro confesso, or as confessed-or having thus confessed it-though not in writing, as he might have done in an answer. There is no ndmission in writing here by the defendant, nor is any evidence in writing shewn.

In Davies v. Olty, 33 Beav. 540, the question arose, or might have arisen, upon demurrer. The bill did not allege that the trust was evidenced by writing. The Master of the Rolls held the bill sufficient and overruled the demurrer. Now, suppose the defendant had not answered, but had allowed the demurrer to stand, I apprehend the plaintiff would have taken his decree as a matter of course, and without evidence. He would not be called upon for proof, and yet the demurrer contained no admission in writing, of the terms of the trust. The effect, I think, of the bill being taken as confessed, cannot be less. It at least amounts to this, that the defendant waives all proof by the plaintiff.

MORLEY V. MATTHEWS.

Practice-Reference back to Master-Evidence-Correcting report.

Where a reference back to the Master to review his report is directed, the Master is at liberty to receive further evidence,

Where the court on a reference back to the Master, does not mean that he shall take further evidence, the order contains a direction to that effect; unless the reference back is expressed to be for a purpose on which further evidence could not be material.

The court will at almost any stage of a cause mako a special order for the correction of slips in a Master's report.

Motion to quash the certificate of the Master at London, on the ground that one of the schedules prepared by the Master had been omitted from his report by mistake.

Roaf, Q C., and Chadwick, in support of the application.

Blake, Q. C., contra.

MOWAT, V. C.,--The Master at London made a report in this cause, dated the 10th day of July, 1866, which the plaintiff's appealed against. The first ground of appeal was allowed by consent without argument, and was in the following words: "That the Master should have taken a separate account of the principal or corpus of the estate, and of the income which by the testator's will is charged with legacies, and have allowed against such principal or corpus the proper charges affecting the same, and have allowed as against such income, first, such disbursements as were properly chargeable against the income; second, the annuity to the testator's widow and sister; and, third, the sums payable to the testator's children."

Under the order allowing this objection (12th September, 1865,) the Master has ruled that he may allow as income sums which by his former report he did not allow either as principal or income; but that he is not at liberty to allow

Chan. Rep.]

MORLEY V. MATTHEWS-RE OWENS.

any sums as principal which he did not allow by his former report.

No ground was suggested to me on which this distinction can be supported. If the Master can take an account of further sums of income, he can take an account of further sums of principal, and I think the practice does not require or authorize the exclusion of either. The general rule is that on a reference back to the Master to review his report, he is entitled to receive further evidence. In Twyford v. Truill, 3 M. & C. 649, Lord Cottenham said: "I have always been of opinion that the Master is entitled to receive further evidence. It seems to me nonsense to refer it back to the Master, unless he is at liberty to receive further evidence; because the conclusion afforded by the evidence already taken might have been drawn by the court without the assistance of the Master." The case of Livesey v. Livesey, 10 Sim. 331, is to the same effect. apprehend, therefore, that where the court does not mean that the Master should take further evidence, the order must contain a direction to that effect, unless the reference back is expressed to be for a purpose on which further evidence could not be material.

I

The objection of the appellants in the present case that the Master should have taken a separate account of the principal or corpus," and income, respectively, not that he should by his report have distinguished how much of the amount thereby found was for principal and how much for income. I know of no practice that forbids the Master, upon the allowance, simply, of such an objection, to charge for either principal or income sums he had not charged by his previous report.

Whatever may have been the notion in the mind of the gentleman who drew the Reason of Appeal, or in the minds of the counsel who consented to its being allowed, all I can say is that the language employed, the meaning and effect of which alone I have to consider, is not such as by the practice of the court excludes additional charges.

It appears that the only item hitherto excluded by the Master was omitted from his first report by a mere slip, the receipt of the money having been admitted by the accounting party in his aecounts brought into the Master's office. The court will at almost any stage of a cause make a special order for the correction of slips of that kind in a Master's report, Richardson v. Ward, 13 B. 110; Ellis v Maxwell, Ib. 287; Prentice v. Mensal, 6 Sim 271; Turner v. Turner, 1 J. & W. 39; Turner v. Turner, 1 Swanst. 154. But the items which may be added by the Master when a report is sent back to be reviewed do not appear to be confined to this class.

I

The question was argued before me by counsel for all, and I have followed the example of Lord Cottenham in Twyford v. Traill, 3 M &. C. 649, and expressed my desire of the parties, though this is not strictly regular. No order can be drawn up on the motion except as to costs. think the costs of the application should be paid by Mrs. Matthews, who has wrongfully resisted being charged with the item which has given rise to the Master's erroneous ruling. See General Order, No. 36, of December 20th, 1865.

RE OWENS.

[Chan. Rep.

Insolvency Act—Appeal.

Notice of the application for an allowance of appeal must be served within eight days from the day on which the judgment appealed from is pronounced, but the application itself may be after the eight days.

Where the notice was served in time, but named a day for the application, which did not give the time the insolvent was entitled to, and was irregular in some other respects, the notice was held amendable in the discretion of the judge.

This was a motion in Chambers by creditors for the allowance of an appeal from the decision of the County Court Judge, in respect of the insolvent's certificate.

Mr. Hodgins, in support of the application.
Mr. Cattanach, contra.

MOWAT, V. C.-The 9th section of the Insolvency Act of 1864, sub-sec. 12, makes the order of the County Court Judge "final unless appealed from in the manner herein provided for appeals from the court or judge." This manner is pointed out in the 7th section, the 2nd sub-sec. of which provides that the party dissatisfied may in Upper Canada appeal "to either of the superior common law courts or to the Court of Chancery, or to any one of the judges of the said courts; first obtaining the allowance of such appeal ....by a judge of any of the courts to which such appeal may be made."

The third sub-section provides that "such appeal shall not be permitted unless the party desiring to appeal applies for the allowance of the appeal, with notice to the opposite party within five days from the day on which the judgment of the judge is rendered." By the act of 1865, chapter 18, section 15, the delay of applying for the allowance of an appeal is thereby extended to eight days, instead of five.

In the present case the order from which these creditors desire to appeal was made on the 2nd of June. The creditors reside in Montreal; the insolvent resides in Guelph; and the notice of application for the allowance of the appeal was served on the 7th, and was returnable on the 9th of June. The notice, therefore, was both served and returnable within eight days from the rendering of the judgment.

[ocr errors]

Mr. Cattanach, for the insolvent, objects, however, that the notice was insufficient on various grounds The most formidable of these grounds is this: A subsequent section of the act of 1864, section 11, sub-section 9. provides that one clear day's notice of any petition, motion or rule, shall be sufficient if the party notified resides within fifteen miles of the place where the proceeding is to be taken, and one extra day shall be sufficient allowance for each additional fifteen miles of distance between the place of service and the place of proceeding." Here, it is said, there has been but one clear day's notice; while the insolvent resides at Gue'ph, and was therefore entitled to longer notice: and that the notice served was therefore insufficient and irregular, and that the application for allowance should consequently be refused. The effect of yielding to this objection would be to prevent any appeal now from the decision complained of.

The notice contemplated by this enactment, according to the construction of this and the other clause which is contended for, would render

[blocks in formation]

all appeals impossible where the party to be notified resides 120 miles from Toronto. It seems necessary, therefore, to hold that, according to the intention of the act, if the service is within the eight days, the application may be for a day subsequent.

It is to be observed also, that the notice specified is declared to be sufficient-it is not declared to be indispensable.

Mr. Hodgins answers these objections by referring to the 13th and 14th sub-divisions of the same eleventh section, which provide, amongst other things, that "no allegation or statement shall be held to be insufficiently made, unless, by reason of any alleged insufficiency, the opposing party be misled or taken by surprise;" and that

no pleading or proceeding shall be void by reason of any irregularity or default which can or may be amended under the rules and practice of the court."

When the notice of allowance is served within the time required by the 7th section, can I amend the irregularity of the return day, not being such as to allow the time mentioned in the 11th section? I think I would not be carrying out the spirit or intention of the act if I should refuse to allow the amendment. The appealing creditors were guilty of no negligent delay; they served their notice with reasonable promptitude; the 7th section, as amended, seemed to require that not only the notice should be served, but the allowance moved for, within the eight days; and the notice, therefore, named the last day but one of the eight for the application (the last day, the 10th of June, being Sunday). I am satisfied that a mistake made under these circumstances, was not such a mistake as the legislature intended to put beyond the possibility of correction. I say this after reading the enactments of the English Bankruptcy Law, on the subject of amendments, and the English cases to which I was referred on the part of the insolvent.

The other objections to the form of the notice are, that it is not entitled in any court, and that it does not mention on what evidence the motion is to be made. I think that, according to the practice of this court, the notice must be regarded as irregular in these respects, but I think that it may be amended.

It is further objected, that the notice should state the grounds of appeal. I do not think this omission is an irregularity.

It is further objected, that it does not appear that the applicants have proved any debt against the insolvent. I think this omission may be supplied.

The appellants must pay the cost of the day. If the respondent insists on the objections, the motion must stand over to a future day; the defective evidence to be supplied, and the notice for the allowance to be amended

CHANCERY CHAMBERS.

Reported by J. W. FLETCHER, Esq., Solicitor.

WIMAN V. BRADSTREET.

Discovery-Principal and agent—Privilege. Letters received by the agent of a party to a cause from other parti:s, although written in confidence, but relating

[Chan. Cham.]

to the subject matter of the cause-Held, to be in the custody or power of the principal, and not exempt from production under an order to produce. No communication privileged, except as between a solicitor and his client. Such letters must be produced entire and not mutilated. [Chambers, 29th Nov. 1866.]

In this suit a writ of sequestration had issued against the defendants, for contempt in not producing certain documents admitted by them to be their property.

The bill was filed for the purpose of obtaining an injunction to restrain the defendants from publishing a mercantile reference book or directory, alleged to be compiled in part from a similar work published by the plaintiffs. The plaintiffs suspecting that the defendants would make extracts from their work, purposely inserted therein the name of a village called Apricot, in the county of Ontario, which village, in fact, had no existence; doing so for the purpose ef setting a trap for the defendants. The device was successful, the defendants actually inserting in their work the fictitious name. In order to prove the alleged misconduct of the defendants, the plaintiffs were desirous that the letter from the agents of the defendants, relating to this village of Apricot, should be produced. This the defendants refused to do, setting up that these communications were confidential and privileged, being obtained privately from particular persons, and necessarily so on account of the peculiar nature of their business. Certain letters were produced by the defendants, out of which the names of persons from whom information was obtained had been cut.

Huson Murray moved to set aside the sequestration, contending that the affidavit on production, filed by the defendants, was sufficient, and that as the letter spoken of had passed between third parties, that they were exempt from production. His clients had produced all the documents relating to the cause, which they were compellable to produce, and they were therefore entitled to have the sequestration discharged with costs. He cited Edmonds v. Lord Foley, 10 W. R. 210.

S. H. Blake, for the plaintiffs, said that the letters in question were material to support his case. They were not privileged communications; on the contrary, being made to the agents of the defendants, and being in the custody and under their control, they were liable to production. He cited Wigram on Dis. 216-7 and 289. The par

ties writing the letters, if known, could be examined as witnesses for the plaintiffs, and made to disclose the contents of the letters in question. Documents produced must be produced entire and not mutilated.

THE JUDGES' SECRETARY.-In this cause the defendants move to discharge a sequestration obtained by the plaintiff against them for nonproduction of books and papers, the order for production having now, as they allege, been obeyed. In answer to the motion, the plaintiff contends, that the defendants have not produced certain letters, which, by their affidavit on production, they admit are in their possession, and that others, which have been produced, are in a mutilated form, portions of the letters having been cut out before production. The defendants seek to excuse themselves from production of the letters which they have not produced, on the

[blocks in formation]

ground that they are not in their possession or under their control, but that they are the private property of their agent, written to him by a correspondent of his own, and not by any one in the employment of the defendants. I do not think that the excuse is sufficient to protect the letters. The statement in the affidavit on production is:

-COLENSO V. GLADSTONE.

We have been informed that our agent, who is engaged in getting up the manuscript of that part of our book which is in question in the suit, has in possession some letters received by him from correspondents employed by him, and in particular a letter giving the-Information as to the place or village called Apricot, but that he declined to produce the same." On the argument of the motion, it was admitted that but for the agent having been employed in getting up the defendant's book, these letters would not have been received by him, and there is no pretence made on the part of the defendants that it is out of their power to procure these letters and produce them. I must therefore hold that they are documents in the possession, custody and power of the defendants, and that they must be produced. As to the letters which have been produced in a mutilated form, the defendants say they have cut out the names contained in them, because they are letters sent by a travelling agent to the defendant's agent at Detroit, and the names cut out are those of the persons who gave him information as to the standing of the various merchants in the towns he visited, and that these persons gave the information sought from them, under a pledge given by the defendants not to divulge their names, and that "It was under such agreement only that their said correspondent undertook to admit them in said work." I do not think I can attach any weight to this argument. The law knows no privileged communication, except between a solicitor and his client. The agent had no power, by giving any such pledge to oust the jurisdiction of this court to grant discovery, and if he were put in the witness box and examined, he would be compelled to disclose the names of the parties from whom he obtained his information. The argument that the names of these persons are their own property, and that therefore the letters containing their answer are held by the agent as the joint property of those correspondents, so that the court cannot order the production when the latter are not parties to the suit, is answered, and cannot prevail. Besides, these letters are not in the agent's hands, and by their affidavits they are admitted to be the sole property of the defendants. The defendants are bound to supply those portions of the letter which they have kept back. The order to produce not having as yet been fully complied with, I must refuse the motion with costs.

CARR V. CARR.

Interim alimony.

An order for interim alim ny will be granted on the marriage being proved or admitted, without showing any other fact or circumstance.

[Chambers, 27th Oct. 1866.]

Fletcher, for plaintiffs, moved for an order for interim alimony.

Spencer appeared for defendant, and asked an

(Eng. Rep.

enlargement of the motion, for the purpose of procuring further affidavits to support the answer. Fletcher, contra.

The marriage having been admitted by the answer, no affidavits whatever can be read, and the order must be granted.

THE JUDGES' SECRETARY held plaintiff entitled to the order and directed the usual reference, remarking that the questions put in issue could not be adjudicated upon in Chambers, which would be done if the merits set up in the answer were considered.

MARSHALL V. WIDDER.

Master's office-Incumbrancers-Service.

G. D, and H. D., his wife, incumbrancers, were made parties to the Master's office, and not appearing on the day named in notice A., held, by the Master, that an order in Chambers must be obtained, giving the wife liberty to come in and prove her claims separate and apart from her husband. The order in Chambers was afterwards obtained. Service of a fresh notice A. dispensed with.

[Master's Office & Chambers, 7th Jan. 1866] This was a common foreclosure suit. The decree was the usual decree, with a reference to the Master as to incumbrancers. The defendants. George Dyett and Harriett Dyett, were found to be the only incumbrancers, and were made parties in the Master's office. On the return day named in the usual notice A. to incumbrancers, which notice had been duly served on the last named parties, the plaintiff's solicitor appeared in the Master's office to prove his claim, no person appearing for the incumbrancers.

The Master, in the absence of any person to represent them, ruled that the reference could not be proceeded with, but that an order in Chambers would have to be obtained, giving the defendant, Harriett Dyett, liberty to come in and prove her claim at some day to be named in the order, not less than fourteen days from the day of the service of the order upon her. The Master thought the practice in the Master's office in such a case analogous to the practice of serving an order to answer a bill of complaint separately upon defendant (a married woman), who had not answered jointly with her husband.

THE JUDGES' SECRETARY granted the order. Service of a fresh notice A. on the defendant, Harriett Dyett, was deemed unnecessary.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors]
[ocr errors][merged small]
« PreviousContinue »