Daniel Boyd v. Miller.

.D. S. Kerr, Q. C., in reply, contended that, as the verdict was for $21,500, and the plaintiffs were entitled to their money on the day judgment was entered up, they were entitled to interest on that amount until 29th October.

ALLEN, J.-I think that, in this case, the plaintiffs are clearly entitled to interest from the 18th June until the 29th October, not on $21,500, the amount of the verdict, which would be giving the plaintiffs compound interest, but on $20,000, the amount of the policy. We cannot give the plaintiffs leave to enter judgment nunc pro tunc as of Trinity Term; that formed no part of your notice. An application for that should have been made immediately after the judgment of the Court was delivered in October last. WELDON and FISHER, J. J., concurred.*

DANIEL BOYD v. MILLER.

FEBRUARY 18th, 1871

The Court sent down a feigned issue to be tried at the York sittings. At the first trial plaintiff was nonsuited, at the second a verdict for defendant, which was set aside. A term elapsed without notice of trial by the plaintiff, but the Court refused to allow the issue to be taken pro confesso, but ordered it to be tried at the next sittings, either party to give notice of trial.

A feigned issue was sent down from this Court to be tried at the York sittings. On the first trial the plaintiff was nonsuited, at the second trial there was a verdict for the defendant, which was set aside in Trinity Term last. One term had since then been allowed to pass without any notice of trial, and it was now moved by Fraser, for the defendant, that the Court proceed to judgment, that this issue be taken pro confesso, and a satisfaction entered on the judgment roll.

A rule nisi being granted,

A. L. Palmer, Q. C., now showed cause, contending that the defendant was as much bound to bring the issue to trial as the plaintiff, and that it was optional with either party to do so.

Fraser, in reply,

Per Curiam, ordered that the issue be tried at the sittings in May next, either party to be allowed to give notice of trial.

*Ritchie, C. J., and Wetmore, J. took no part.

RYAN v. MCINTYRE.

FEBRUARY 24th, 1871.

The issuing of a writ or other act by an uncertificated attorney is illegal and void, and cannot be made valid by the consent of the other side.

This was an application made before Mr. Justice WETMORE in the first instance, and by him referred to the Court, that further proceedings in this cause be stayed, on the ground that, at the time the writ was issued and the cause entered, the plaintiff's attorney had not taken out his certificate, as required by the Act 22 Vict. cap. 28. It appeared by the affidavits that the plaintiff's attorney had taken out no certificate for the year ending on the first day of Trinity Term, 1870, which was the 14th June. The writ was issued in April, 1870, and the cause entered on the 21st May following, the declaration was received by the defendant on the 11th June following, and the cause tried at the Kings Circuit in July when the plaintiff obtained a verdict. The declaration was not filed until after the trial. The affidavit of plaintiff's attorney set forth that the defendant's attorney told him he was aware that he had not taken out his certificate, but would not take advantage of it, and that the defendant's attorney, who was clerk of the Circuits, afterwards gave him the postea, and it was not until the judgment roll had been made up and notice of taxation given that the summons to stay proceedings was obtained.

Skinner, Q, C., on a former day in this term moved that further proceedings be stayed. He contended that this case was similar to Des Brisay v. Mackie (ante vol. 1, 138) and that any proceeding taken by an uncertificated attorney was an absolute nullity and, therefore, no waiver on the part of the other party could make it valid.

A. L. Palmer, Q. C. For the sake of the argument I am willing to admit that this is just the same as if a man who was not an attorney had put his name on the writ. But such a writ would not be a nullity, for it is not the attorney's name that gives a writ vitality, but because it has the seal of the Court. In Levi v. Muzevoll (3 Allen 598), it was held, that the omission of an attorney who signs a confession under a bond and warrant of attorney, to add the date of signing and mark his initials, as required by the rule in the warrant, does not make a judgment signed on such confession void. But here the defendant has consented to everything and waived everything, and, now that the trial has gone against them, says it is a nullity. In Andrews v. Elliot, (5 E. & B. 542), it was held where a cause was tried without a jury by a commissioner of Nisi Prius, not a Judge of the Supreme Court, and the parties had consented, and the Judge in open Court had sanctioned this course, but there

Bartlett v. Glasgow.

was neither Judge's order nor consent in writing, that as the commissioner had a general jurisdiction to try, the verdict must stand. It would, I think, be difficult to find a case where a party may not by waiver deprive himself of any right he has. Here, Morton, with the full knowledge of all the facts, in his capacity of clerk of the Circuits, goes on taking fees from the plaintiff, gives him his postea, and lies by until the last moment, surely all this must estop him! Skinner, Q. C., in reply.

Cur. adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.

Having decided in DesBrisay v. Mackie (1 Hannay 138) that an attorney who has not taken out his certificate under 22 Vict. cap. 28, and who practices, is guilty of an illegal act, it necessarily follows that such illegal act must be void, and if the law will not allow him to do any act as an attorney, no waiver of his opponent can render that legal which the law declares illegal. The prohibition was for the purpose of securing the payment of the yearly sum of $3 from each attorney for maintaining the law library. What right has a party in a suit to waive any thing that destroys this security? If this could be done, a general agreement among the attorneys to waive in all cases would entirely frustrate the intention of the Legislature by rendering wholly nugatory their express enactment. We trust that the clerk will be extremely careful to receive no paper from an uncertificated attorney. This will afford a large protection to the public.

Rule absolute to stay proceedings, as moved.

BARTLETT v. GLASGOW.

FEBRUARY 24th, 1871.

An aplication for relief of sureties on a limit bond should be made to the Suprem Court although the bond was given on the arrest of the principal on an attacliment issued out of the Court of Equity for non-payment of costs.

е

The principal on a limit bond broke the limits, and the plaintiff having taken an assignment of the bond, called on the surviving surety for payment, who obtained an order from the County Court Judge and rendered the principal to the custody of the Sheriff. The surety afterwards was sued by the plaintiff, and applied to a Judge at Chambers for relief. Held, That the defendant was entitled to have proceedings stayed on payment of costs up to the time of his application to the Judge.

J. R. Macshane, on a former day in this term, applied for relief on the part of the defendant as surviving surety on a limit bond given to

Bartlett v. Glasgow.

the sheriff of St. John, on the arrest of George Stymest on an attachment for the non-payment of costs, issued out of the equity side of the Supreme Court. He read the affidavit of W. H. Glasgow, the surety, which set forth that he was not aware that Stymest had broken the limits until the 6th December, when he received a letter from the plaintiff's attorney announcing the fact, and that the bond had been assigned, and calling on him for payment. On the 10th December, having obtained an order from the County Court Judge for that purpose, he rendered Stymest to the custody of the sheriff of St, John, who received him and took a new limit bond with other sureties. That on the 13th December he was served with a writ at the suit of the plaintiff on the bond, and immediately replied for relief to Mr. Justice Weldon at Chambers, who ordered proceedings to be stayed until the defendant could apply to the Court. He contended that the facts disclosed in the affidavit entitled the defendant to relief, Mr. Stymest being in the custody of the sheriff before the suit commenced, of which the plaintiff had notice.

S. R. Thomson, Q. C., contra. I have great doubts whether this is the proper Court to apply to for relief, it should be the Court out of which the process issued for which the man was arrested. The sheriff was not entitled to take bail for the limits on such an attachment.

[RITCHIE, C. J.: That is against you, I think; if so you are out of Court. ALLEN, J.: You are in no worse position than before, you still have the man's body as fully as when the first limit bond was executed.]

The defendant's affidavit is not sufficient by itself: there is no affidavit from Stymest that he was insolvent. The County Court Judge has only a pure statutory jurisdiction, and has no power to make the order of render. By 32 Vict., cap. 13, sec. 10, a Judge of the County Court has only power to make orders of render in cases of special bail, for the word bail which is used in the section is a technical term which only applies to special bail; the order was therefore improper.

J. R. Macshane, in reply,

Cur. adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.

This was an application for relief on behalf of the defendant, as the surviving surety in a limit bond given to the sheriff of St. John on the arrest of George Stymest on an attachment for non-payment of costs, issued out of the Court of Equity. The defendant's affidavit states that he had no intimation, until the 6th December last,

Bartlett v. Glasgow.

that Stymest had broken the limits; that on the 10th December, Stymest was rendered to the custody of the sheriff of St. John, in discharge of his sureties in the limit bond, under an order from the Judge of the County Court of St. John, and that since that time this suit had been commenced,

An application had been made to a Judge at chambers, who, having doubts whether it should not have been made to the Court of Equity, stayed the proceeding until the defendant could apply to the Court.

The power of the sheriff to take a limit bond in a matter of this kind is put beyond doubt by the Act 24 Vict., c. 6. There is no doubt that the application for relief is properly made to this Court, in which the action is brought. By the express terms of the statute, (1 Rev. Stat., c. 124, s. 13) the Court where the action is brought is authorized to give such relief as is agreeable to justice. The Court of Equity would have no power to give summary relief to the sureties in an action brought on the limit bond in this Court.

We also think that the render of Stymest was sufficient. By 1 Rev. Stat., c. 124, s. 17, any debtor having the liberty of the limits, may render himself, or be rendered by his surety, to prison, in discharge of the limit bond. By 12 Vict., c. 39, s. 14, a defendant in custody of a sheriff by virtue of any legal process, may be rendered in discharge of his bail in any action depending in the Supreme Court, in the manner therein before provided, that is, in the preceding section for a render in discharge of bail; and by the 31 Vict., c. 13, s. 10, a Judge of a County Court may make an order for the render of any defendant in discharge of his bail, in any cause in any Court in the Province, to the gaol of any County.

Though the word "bail" in these Statutes may, strictly speaking, mean special bail, or bail to the sheriff: still, looking to the fact that the sureties in a limit bond are authorized to render their principal to prison-a proceeding analagous to that of render by special bail -we are inclined to think that the word "bail" may be held to apply to the sureties in a limit bond. Admitting, however, that the Act will not bear that construction, as Stymest had a right to render himself in discharge of his sureties, see Campbell v. Henan (Bert. R. 72,) and he is now actually in the custody of the sheriff, who has received him under the order for render and taken a new limit bond, we think the defendant is entitled to have the proceeding in this action stayed, on payment of the costs up to the time of the application made to Mr. Justice Weldon. Rule accordingly.