SUPREME COURT-IN BANCO.

Evening Star, Issue 7485, 2 April 1888, Page 4

SUPREME COURT-IN BANCO.

Thursday, March 29,

(Before) His Honor Mr Justice Williams.)

Guoviss v. Caluek.—ln this previouslyheard case His Honor now gave judgment as follows :

I think the present case is distinguishable from Dillwyn v. Llewellyn (4, De G.F. and J., 517). As was said in that case, the equity must depend upon the acts done. Now hero David Calder, being an old man, wished his son, John Calder, to reside near him for the rest of his life, and in order to induce him to so reside put him in possession of a piece of land to build a house on, and provided the timber to build it, John Calder providing the labor and other material. I certainly cannot infer from these circumstances a contract by David Calder that if John Calder built the house and resided in it till David Calder's death the land should be conveyed to John Calder in fee simple. The object of David Calder was that John Calder should live there duriDg the rest of David Calder's life. David Calder actually lived more than five years after the house was built, and he might well have considered in providing a site and the bulk of the materials for the house that it would be worth his eon's while to put it up if he could sit rent free for a period, the length of which David Calder would certainly not be disinclined to undcr-estimatc. The then value of the land appears to have been L3OO, tho value of the timber LSO. John Calder says he paid for other materials (including a range costing L 9) from L2O to L3O; one man (Chisholm), for labor, L 6; another (Mills) an amount he forgets; and that the rest of tho labor was that of himself and his brother, to whom he paid nothing. He was boarding and lodging at his father's house without payment while the building was being erected. This is a very different state of aifairs from a man being given a piece of farming land and erecting a mansion costing L 1.4,000 upon it while the donor stood by and approved. I should certainly say that the intention of David Calder in giving the land was not to give it absolutely, but to give it during the term of his own life only. That this was his intention is shown by the subsequent conveyance of it to Helen Groves, subject only to his own life interest. In his will, made after the conveyance, he also makes a provision for John Calder and Helen Groves, of course on the assumption that the prior deed is valid, and that the land belonged after his death to Helen Groves. John Calder, for some months before the death of David Calder, was aware of the conveyance to Helen Groves, and made no protest that it interfered with his rights. After David Calder's death also he became aware that the land had been brought under the Land Transfer Act in the name of Helen Groves, and that it had been mortgaged by her. Before this action was brought John Calder never claimed a right to the land, but merely compensation for his improvements. This appears by his letter of February 7th, 1887. If, indeed, John Calder had any equity after the death of David Calder —and I doubt whether ho had any equity—it was certainly no more than that he should be paid by the person claiming under David Calder the valuo of his own expenditure upon tho property up to the time of the death. The death, however, occurred in October, 1870, and since then John Calder has lived in the house without paying rent. If in October, 1879, Helen Groves had only a right to the possession on payment of, say, some L6O, she, by allowing John Calder to remain there for eight years free of charge, would have given him much more than that sum. I think, therefore, that Helen Groves is now entitled to judgment for possession unconditionally; costs as if L3OO claimed.

MOFFETT AND ANOTHKK V. SIIEABS (eZ parte Beswick). Judgment was given in this case as follows :

By rule 6 of the rules of 1875, the sheriff is entitled to the same fees in respect to an order to arrest under the fifteenth section of the Imprisonment for Debt Abolition Act, 1874, as he was then entitled to on a capias. On a capias he was then entitled to poundage on the aura for which the body should be taken in execution (see table of fees under Sheriffs Act). If the body is taken in execution on a capias tho sherilf, in my opini&n, becomes entitled to the poundage. Tho right to poundage was originally given by 28 Bliz., C. 4, and was given upon the sum levied, or upon which the body should bo taken in execution for (see Watson, on tho Office of Sheriff, p. 100). Tho case of Miles v. Harris, 31 L,J., C.P. 361, simply decides that in the case of a jl. fa. there is no lovy within the meaning of the statuto, unless thcro has been a sale as well as a seizure, and by the statute tho right to pouudago on /['. fa. does not accruo until thero has been a levy. If, however, thero has been a lovy, the cases of Bullor v, Ansley, (>, Ertp. HI, and Rawstron v. Wilkinson. 4 M. and S,, 256, nhow that the subsequent setting aside ol thb

writ will not disentitle the sheriff to poundage. It would follow, therefore, that in the case of a caputs, if the sheriff has taken tho body in execution, he would bo entitled to poundage, notwithstanding that the writ may be afterwards set aside. If, then, tho rules of 1875 are in force, I am satisfied that tho sheriff is entitled to the poundage claimed. It seems, however, to be conceded that they are no longer in force owing to the operation of the schedule to the Suprano Court Act, 1882. If the rules have been repealed, it is evidently becauae their existenco was overlooked by the framers of the Act of 1882. The poundage was, by the rules, given to the sheriff aB a reasonable remuneration for his trouble and responsibility. The repeal of the rules in the way in which they havo been repealed cannot be taken as an indication of opinion by the Legislature that the remuneration given by them was unreasonable, or that the sheriff ought to act without remuneration. The repeal simply leaves it as a case unprovided for, and enables the Judge to fix tho amount under section 18 of tho Sheriffs Act. Tho remuneration fixed by tho old rules waß recognised by the rules as a reasonable amount, and I follow the rules as the only guide in the matter, and fix the amount at L 27 10s.