1860. RANKIN against ANDERSON. CARTER, C. J., now delivered the judgment of the Court. The reason given by the plaintiff for not proceeding with these actions, would be quite sufficient to discharge the application for judgment as in case of a nonsuit, on a peremptory undertaking, and payment of the costs of the day and this application; but under the circumstances of these cases that would be a course not to be desired by either party, as it appears the suits are really settled. If the defendant Anderson is put in the same position as regards the costs, in which he would have been by the terms of the plaintiff's giving a peremptory undertaking, he cannot expect any more, especially after the delay which has occurred in making these applications. We think this will be effected by the plaintiff's entering a stet processus in both cases, pay. ing the costs of the day and of the application in the case in which notice of trial was given, and the costs of the application in the other case. The applications may be dismissed on these terms. Rule accordingly. It is sufficient ground for enlarging a peremptory under claimed under a CONNELL against HALEY. ISHER had obtained a rule nisi to enlarge a peremp tory undertaking to go to trial in this cause at the last taking, that the Carleton circuit. The affidavit of the plaintiff stated that plaintiff, who the action was trespass to land, and that he claimed title will, was una- under the will of Peter Dickenson; that two of the witnesses the residence of to the will were dead, and though he had made diligent the subscribing inquiry, he was unable to discover the residence of the third Semble, that witness until after the last Carleton circuit. ble to discover witness. a certified copy be given in evi 1 Rev. Stat. c. 112. of a will cannot Fraser now shewed cause, and produced an affidavit stat donce under the ing that the will was recorded in the Registry Office of the county. He contended that the witness was not necessary, as the plaintiff might have given a certified copy of the will in evidence. 1 Rev. Stat. 287. [PARKER, J. I think it is necessary necessary to call the subscribing witness to a will. I know of no case where a certified copy of a will has been received in evidence.] The 4th section of the statute declared that all conveyances or instruments affecting lands should be registered. A will was certainly an instrument affecting lands; and in the 1 Rev. Stat. 462, the word "conveyance" was defined to mean any instrument by which any interest in real estate might be transferred or affected. [CARTER, C. J. Does not a will transfer the legal title of land to the devisee immediately on the death?] No: not till it was registered. Per Curiam-As this is at least a doubtful point, we think there is sufficient excuse shewn for not going to trial, and that the peremptory undertaking should be enlarged. Rule accordingly. 1860. CONNELL against HALEY. END OF MICHAELMAS TERM. AN INDEX TO THE PRINCIPAL MATTERS. ABANDONMENT. See TRESPASS, 1, VOTE 2. ABATEMEMT. See HUSBAND AND WIFE, 3. ABSCONDING DEBTOR. 1. Property seized upon a warrant issued ACCEPTANCE. See CONTRACT. See APPEAL, 2. ATTORNEY, 3. ACCOUNT STATED. See ESTOPPEL, 1. Plaintiff being lessee of land, assigned one dentally omitted to insert the amount of damages and costs in the judgment roll, but issued execution for the amount, the Court allowed the roll to be amended nunc pro tunc; though the defendant (relying upon the omission) had brought an action of trespass against the plaintiff for seizing his property under the execution. Smith v. Sonea. Page 266 APPEAL. 1. An appeal to the Queen in Council, under the order of November 1852, from a judgment of this Court affirming a decree in equity, may be applied for within fourteen days after the minutes of the decree are settled, though more than fourteen days have elapsed since the judgment was pronounced. Brookfield v. The St. Andrews and Quebec Railway Company. 496 2. On a reference in a suit in equity to take an account, the Barrister received evidence of a claim by the plaintiff in a matter not mentioned in the reference, but made no report upon the validity of the claim. At the hearing of the cause, this evidence was not used, and a decree was made without noticing this claim. Held -on appeal from this decree-that though under the Act 17 Vict. c. 18, it was proper to produce the evidence before the Court of appeal, the Court was not bound to use it. Deveber v. Andrews. 626 APPORTIONMENT OF DAMAGES. See TRESPASS, 3. ARBITRATION. See ACCOUNT STATED. 1. The defendant having cut lumber on the plaintiff's land, agreed in writing to pay him such sum as two arbitrators should decide-it being understood at the time, that the plaintiff was to show the bounds of his land. The plaintiff afterwards, without notice to the defendant, pointed out his boundaries to the arbitrators, who awarded a certain sum to be due him. Held that the award was bad for want of the notice. Therriau v. Therriau. 48 Quare, whether the agreement to refer, being signed by the defendant only, was not bad for want of mutuality. Ibid. 2. An action of assumpsit and an action of debt pending between the parties, they agreed |
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