COSTS.

1. A will having been produced for probate in common form, probate
was refused on account of defects on the face of it, and thereupon the
counsel present consented to proceed with an investigation to test the
will in solemn form without the usual citations and other preliminaries
according to the practice of the Court. The Judge of Probate decreed
the will to be invalid. A pecuniary legatee under the will, who had
not been a party to the consent, was one of the appellants from this
decree.

Held, that the appeal must be allowed, but without costs, as
there had been a consent to the proceedings below by all the counsel
that had appeared at the bar in this Court, who were the same proctors
and advocates that had appeared below.

In re Estate of Connolly

.........

2. The city ordinances authorized the Council to appoint a Recorder at
a salary in lieu of all fees for services, and made it his duty to act for
the city as counsel and attorney.

Held, that, notwithstanding the Recorder was a salaried officer, and
could not have taxed costs against the city as between attorney and
client, the plaintiffs were entitled in a suit in which they had succeeded
to be paid his costs as their attorney by the defendant.
City of Halifax v. Romans.....

....

73

... 271

......

Appeal papers were sent back to the Judge of the County Court to
be amended and were amendel, after which the appellant abandoned
his appeal.

Held, that the respondent was entitled to his costs up to the day on
which notice was given of the abandonment of the appeal.

McLeod v. Dunlap.......

See also McDonald v. McDougall

See also Wier v. Walker

493

158

166

See also PRACTICE, Costs.

COUNTY COURT, MINUTES OF EVIDENCE.

A motion was made to set aside a certiorari taken out in a summary
cause tried in the County Court, the ground for the certiorari being
that the Judge had refused to take down certain evidence. The Court
refused to amend the minutes of the County Court Judge, but, as to
the certiorari, held that it was safer and better that the rule to set it
aside should include a motion to set aside the order for the certiorari
as well as the certiorari itself. With the consent of the parties, the rule
to set aside the certiorari was discharged without costs.

DEMAND AND REFUSAL, WHERE NECESSARY IN REPLEVIN.

The writ alleged only an unjust detention, and no unlawful taking.
Held, that, the possession of defendant being wrongful, no demand was
requisite to sustain replevin. (See Inglis v. Greenwood, ante p. 2.)

Wallace v. Laidlaw..

DISCHARGE, PLEA OF, PUIS DARREIN CONTINUANCE

See INSOLVENT ACT OF 1875. 4.

420

DISTRESS FOR RENT.

Defendants let to a certain tenant premises the upper portion of
which was used as an inn or hotel for farmers, and a part of the lower
flat provided with stalls for the lodgers, in which to sell produce to all
buyers. Plaintiff occupied a stall in which, along with goods brought
there by himself, he offered for sale a quantity of apples bought in
this same market or outside. The apples were seized under a distress
for rent due defendants by their tenant, and plaintiff replevied, claim-
ing that the goods were privileged from distress, being in a public mar.
ket for sale. The County Court Judge held that the goods were so
privileged.

Held, that the exemption could not be claimed on the ground set up
in this defence, as plaintiff was not using the premises as a market, but
simply as a shop in which to offer in the ordinary way goods purchased
to be sold for a profit.

Bent v. McDougall et al.......

ABANDONMENT OF.

Plaintiff, through his bailiff, distrained on goods of his tenant Bryne,
April 5th, but no attempt was made to sell until twelve days after-
wards, no appraisement was made, and the tenant was left in possession.
One reason given for the delay was that the tenant's children were sick
and could not be moved; but there were other circumstances connected
with the delay that pointed to an abandonment of the distress by the
bailiff. The goods were seized, April 16th, under a writ of replevin, by
defendant, as sheriff, at the suit of a chattel mortgagee, upon which this
action was brought, to recover damages for the removal of the goods.
The County Court Judge found that the piaintiff must be considered as
having abandoned his distress, and he gave judgment for defendant.

Held, that the appeal must be dismissed with costs. (Per SMITH, J.,
that the goods had not been sold in reasonable time, and that, although
the agreement between the landlord and tenant for delay would obviate
this difficulty had the question arisen between those parties, there was
no pretence to hold that as against the sheriff they were in custodia legis.
Per MCDONALD, J., that the County Court Judge having found that
the distress had been abandoned, this Court had no power to interfere
with the finding, and that the Court could only reverse his decision, if
at all, on the ground, not that it was against the weight of evidence,
but that there was no evidence to support it, the appeal not having been
taken on the ground that it was against the weight of evidence. Per
WEATHERBE, J., that the evidence in support of plaintiff was of so
suspicious a character that the Judge was enabled, in the exercise of an
intelligent discretion, to find as he had done and had properly done.)
JAMES, J., dissenting, held that there had been no abandonment, and
interpreted the finding of the County Court Judge that there had been,
not as a conclusion of fact, but as a conclusion of law, which he held to
be erroneous.

Under chapter 54 of the Acts of 1868 the Windsor and Annapolis
Railway Company are liable to be assessed for the maintenance of the
dyke protecting the marsh over which the track of their road passes
owned by them, section 16 of chapter 21 R. S. applying only to county
assessments; and recourse need not be had to the land itself under
section 15 of chapter 40 R. S. as that section refers only to the original
construction of the dyke where the owner has not consented.
Brown v. Windsor & Annapolis Railway Co.......

468

444

225

430

EASEMENT, CONSTRUCTIVE NOTICE OF.

Plaintiff purchased in 1872, a property adjoining defendant's property,
and to the north of it. In 1859 Caldwell, who then owned the northeru
property, granted by deed to defendant the privilege of piercing the
south wall of his building, carrying his stove pipes into the flues, and
erecting a wall above the south wall of the building, to form at that
height the north wall of defendant's building, which was higher than
plaintiff's. This deed was not recorded until 1871, and plaintiff's
solicitor, in searching, did not search under Caldwell's name after the
registry of the deed by which the property passed out of Caldwell's pos
session in 1852, and did not, therefore, observe the deed creating the
easement in favor of defendant. Defendant's northern window was so
close to plaintiff's wall, that it was plain to one narrowly observing it
that defendant had no separate northern wall, and the defendant's
northern wall above plaintiff's building, resting upon plaintiff's southern
wall was obvious to any one looking from the opposite side of the

street.

Held, that the deed creating the easement came within the Registry
act as "affecting lands," that plaintiff, however, was not bound by the
registry of it in 1871, although previous to his purchase, the title hav
ing passed out of Caldwell in 1862, but that plaintiff must be held to
have had notice of the easement as the encroachments were plainly
visible.

Ross v. Hunter..

EJECTMENT.

Plaintiffs, as trustees of public property for Argyle, claimed to be
entitled to land alleged to have been granted for a Court House in
Tusket village. The grant of the village made in 1809 did not mention
the Court House, but the lot in dispute was set off for a Court House
on the accompanying plan. In 1858 the same lot was granted to
trustees of public property for Tusket for public uses; and it was under
these grants and the statute, (R. S., 4th series, cap. 58,) that plaintiffs
claimed. In 1822 the adjoining lot passed to one Crowell, who conveyed
it in 1832 to James Bingay who took possession, more or less, of all the
Court House lot not actually used for Court House purposes. In 1853
ejectment was brought against him by trustees of public property, Yar-
mouth, which was compromised, Bingay conveying to the trustees a
part of the land then in dispute and plaint:ffs paying his costs. This
conveyance was recognized by the Sessions in 1859; and, in 1864, after
the trustees hal again agitated the question, the Sessions resolved to
relinquish all claim to the so-called Court House lot. Defendants
bought the lands without knowledge of plaintiffs' claim, at a public sale,
which was not forbidden by the trustees, one of whom was a purchaser,
and five buildings were erected on it before the plaintiffs brought their
action.

Held, that the equitable principles prohibiting the disturbance of
settlements lorg acquiesced in, and prohibiting a party from lying by
and reaping the benefit of the expenditure of another's money on his
property, applied to the plaintiffs, and that, on these grounds, as well
as upon others appearing in the evidence, the judgment of the Court
must be for the defendants.

Trustees of Public Property v. Gillis et al

ELECTION PETITION.

See Rules of Court....

EQUITABLE ASSIGNMENT.

44

262

527, 540

See GARNISHEE PROCESS.

EQUITABLE DEFENCE.

An action was brought at common law by the Judge of Probate
against an administratrix and sureties for not faithfully administering.
The administratrix made default, and the sureties pleaded an equitable
defence that the administratrix had, with the knowledge of the creditors
at whose instance the suit was brought, continued trading instead of
settling the estate of the intestate, and that the deficiency of assets had
resulted from such trading. The jury found the issues raised by this
plea in favor of the defendant, and the cause was then referred to the
Equity Court, where the learned Judge held that the creditors were
estopped by their consent, and a decree was made in favor of the
defendants with costs.

On appeal from this decree the Court held that, however this equit-
able defence might avail against the creditors so assenting, it afforded
no answer to those, if any, who had not acquiesced; and the cause was
referred to a Master to ascertain whether there were any creditors
unaffected by assent or knowledge who were entitled to administration.
Sutherland et al. v. Wilson et al........

See also PROMISSORY NOTE.

JURISDICTION.

The assiguee of a judgment recovered by the plaintiff against the
defendant duly recorded the certificate of judgment and the assignment
in the Registry of Deeds. The plaintiff afterwards undertook to deal
with the judgment as his own and signed a satisfaction piece which was
also recorded. A rule nisi was taken at the instance of the assignee to
set aside the satisfaction piece, but the Court declined to interfere,
considering that the remedy must be sought in the Equity Court.
McNab v. Shortland...

.....

See also FORECLOSURE SUIT.

EQUITY COURT, TRANSMITTING CAUSE TO.

In an action by plaintiff against defendants on a policy of insurance,
a third party claimed to be interested in the insurance, and forbade
payment to plaintiff. Defendants obtained a rule nisi for an inter-
pleader, upon argument of which before a Judge at Chambers, the
Judge, of his own motion, transmitted the cause to the jurisdiction of
the Judge in Equity, under R. S., cap. 89, sec. 6.

Held, that the Judge had power so to transmit the cause, although
he was not moved to do so by the counsel on either side, and there was
no plea on equitable grounds.

354

326

RULE AS TO BUSINESS OF.

See Regula Generalis

ESTOPPEL.

1. One Nicholson, being indebted to plaintiff, gave him a horse, to be
sold towards the satisfaction of the debt. Plaintiff swapped the horse
with one Hardwick for a colt, informed Nicholson of the trade, fixed
the value of the colt at $5.40 more than the debt, and paid this amount
to a creditor of Nicholson in final settlement. Hardwick afterwards
became dissatisfied with the trade, insisted upon plaintiff giving back
the colt, and applied to M., an attorney, who wrote plaintiff. Plaintiff
called on the attorney and, according to the evidence of the attorney,

521

declared to him that the horse was Nicholson's; according to plaintiff's
evidence, not contradicted, he stated to him the arrangement between
himself and Nicholson in reference to the horse, (as above set out). On
the same day, and previous to the interview, M., acting as attorney of
other parties, had entered up a judgment against Nicholson, and the
Judge of the County Court found that the attorney had, on the faith of
plaintiff's statement that the horse was not his but Nicholson's, caused
the defendant, the sheriff, to levy on it in plaintiff's possession, and that
plaintiff had abstained from looking after other property of Nicholson,
who was a mere transient employe. Before any expense had been
incurrred in keeping the horse, aud before the sale the plaintiff notified
the sheriff that the horse was his.

Held, in accordance with the previous ruling of the Court, 3 R. & C.,
137, that the plaintiff was not estopped from setting up his ownership
of the horse.

Per WEATHERBE, J., that the representation was not made with the
intention that the execution creditor or the sheriff should act on it by
seizing the horse, and it could not be reasonably inferred that such was
the intention; and, further, that the assertion of plaintiff had not been
made baldly, but with a qualification explanatory of the arrangement
above referred to, from which it seemed reasonable that the attorney
had acted rather on the belief that the horse could be shown to be
Nicholson's, than upon the mere assertion of plaintiff that it was so.
McKay v. Bonnett.....

2. Plaintiff held a judgment against one George Cutten and was about
to sue Ryerson and Moses, whom he understood to be Cutten's partners.
Before doing so he consulted one of the defendants, by whom he was
informed that there was a balance of some $2,700 due from the defend-
ants to Cutten for work performed for the defendants on the Western
Counties Railway under a contract, and defendants suggested that this
amount might be made available to satisfy plaintiff's claim if there was
a garnishee law. Plaintiff's attorney, on the strength of this representa-
tion, issued garnishee process, when defendants pleaded denying that
there was any debt due.

Held, that defendants were estopped by their representation from
denying their indebtedness to Cutten.

Fitzrandolph v. Shanly et al.....

3. The Dominion Government, by minute of council in October, 1873,
reciting among other things that the plaintiffs had failed to operate the
Windsor Branch, cancelled the agreement of 1871 and transferred the
Branch in 1877 to the defendant company under the authority of the
act of the Dominion Parliament, 1874, cap. 16. Evidence was given
of negotiations between the companies for an amicable settlement of
their respective claims, conducted chiefly by DePass, who styled himself
a commissioner of the plaintiff company, but who had no power to settle
anything definitely without the consent of the directors.

Held, that the plaintiffs were not estopped from disputing the validity
of the cancellation of the agreement of 1871.

W. & A. Railway v. W. C. Railway ...

4. John Brown died in 1847 having devised land to his son John Brown
and his heirs, but if he had no children and should die before his wife
Susannah, then to her for life, and at her death to Janet West and her
heirs. Janet West and Isaac West her husband conveyed the land in
1848 to the John Brown who in 1874 conveyed to plaintiff, but Isaac
West, having afterwards obtained possession of the land through his
son to whom it had been leased, refused to deliver it to plaintiff, who
brought ejectment.

Held, that the conveyance of Janet West's interest, though it would
not have been good if made to a stranger was valid as having been made
to plaintiff who had the fee, and, even if not so, that defendants were
estopped by their conduct from claiming the land.

Fleming v. West et al ....

96

199

280

294