1897. payments of the principal money secured by the judgment Judgment. or of any interest thereon within the meaning of the At the trial in this case defendants' counsel asked leave to amend the THE plaintiff filed his statement of claim to recover $402.53 for money paid by him for the defendants, at their request, upon a promissory note made by him for their accommodation, and $136 for livery and feed furnished to the defendants. In their statement of defence, the defendants denied all the facts alleged in the statement of claim, and, by way of counterclaim, the defendants claimed from the plaintiff $1,000 for money lent to him and money paid for him. In his statement of defence to the counterclaim, the plaintiff denied the loan of $1,000, or any sum paid for him by the defendants, and alleged further that he and the defendants were partners in building and operating a skating rink in Brandon, and that, upon a settling and adjustment of accounts between them, a sum of $700 was found due to him by the defendants, upon which he had received only $200. The case was tried before Mr. Justice Dubuc at Brandon. At the opening of the trial, the defendants' counsel applied to amend the statement of defence by adding that the plaintiff and defendants had been in partnership in working a skating rink, and that when they dissolved partnership an account was taken by which it was shown that the plaintiff was indebted to the defendants. Plaintiff's counsel objected to this amendment on the ground that the defendants, on the order for the production of the books of the partnership, had not produced them, and that the plaintiff had been refused access to the books. The learned Judge reserved this point for consideration after hearing the evidence. No points of law being involved in the disputes between the parties referred to in the pleadings on the record, the case is only reported upon the question of allowing the amendment asked for by defendants, and only that portion of the judgment relating thereto is printed. G. R. Coldwell, Q. C., for plaintiff, cited Daniell's Chy. 1897. Statement. 1897. Judgment. DUBUC, J. DUBUC, J.-The defendants sought at the trial to have a full investigation of the whole skating rink transactions and of the partnership affairs between themselves and the plaintiff, and brought into Court the books of the late firm of Mann & Durham, in which were found the rink property dealings and accounts. The plaintiff objected to that on the grounds: 1. That there was nothing in the statement of defence or the counterclaim under which such investigation could be gone into. 2. That the said investigation would require the taking of accounts of the partnership, and involve the necessity of thoroughly examining the books of the firm of Mann & Durham, to which the plaintiff objected at this stage of the proceedings on the ground that he had been refused access to said books. Under the pleadings as they appear on the record, the first point is well taken; and such investigation could not be had unless the amendment applied for by Mr. Cameron at the opening of the case should be allowed. The other point gives rise to a question of procedure. The plaintiff took out and served on the defendants' solicitor an order for production. The defendant Mann made an affidavit on production, in which he stated that he had in his possession or power no document relating to the matters in dispute in this case. The plaintiff wanted to see and inspect the books of the firm of Mann & Durham, and he was refused access to them. When the defendants went into insolvency their books were handed to their assignee, W. H. Hooper, who subsequently went to British Columbia, and left the books in the hands of his son, H. R. Hooper, a clerk in the office of Mr. Cameron, counsel for the defendants. The defendant Mann had access to them and examined them in August last, before giving instructions for his defence. He had again an opportunity of examining them the evening before the trial, and he went through them with H. R. Hooper, who charged him $1 for his trouble. 1897. At the trial, Mr. Coldwell objected to the books being produced and examined on behalf of the defendants, be- Judgment. cause of the statement made by defendant Mann in his affidavit on production, and because the plaintiff had been refused access to these books. In Daniel's Chancery Practice, (5th ed.) p. 1686, the following principle is laid down : "Where the possession of the documents is admitted, but the party claims to be exempted from producing them on the ground that, under the particular circumstances of the case, he is unable to do so, he must satisfy the Court by evidence that he cannot obtain access to them, and a mere statement to that effect in his answer or affidavit is not sufficient." That was held by Turner, L. J., in Mertens v. Haigh, 11 W. R. 792. The learned Judge found in that case that the plaintiff had failed to satisfy the Court that he was unable to obtain access to them, though the difficulty to produce them was much more serious than in this case. Strictly speaking, it is true that, in the present case, the books were not in the legal or actual possession or power of the defendants. But I must say, in the words of Turner, L. J., in Mertens v. Haigh, that he has not satisfied me that he could not obtain access to them, and, under the circumstances, I think I would be justified in holding that the said books were not properly before the Court, and should not be examined on behalf of the defendants' counterclaim. It being so, I do not think that the amendment asked for by the defendants' counsel in regard to the partnership affairs should be allowed. It involved the thorough examination of quite a number of voluminous books of accounts, of which the plaintiff knew absolutely nothing. The plaintiff's counsel stated that his client was unprepared to go into the examination of the books at the trial, and he might be greatly prejudiced if they were to be produced and received as evidence. If, by refusing to go into the partnership accounts, the defendants' rights under their counterclaim were to be DUBUC, J. DUBUC, J. 1897. finally concluded, I would have hesitated in refusing the Judgment. application of the defendants. But it is not so. I refrain from adjudicating upon the merit of the said counterclaim. If, therefore, the defendants think they have a bona fide claim against the plaintiff in respect of the skating rink partnership, they may file a statement of claim in an independent action, and have an investigation into the whole dealings had between them. I think a verdict should be entered in favor of the plaintiff for the amount of the note sued on, with interest, and for $136, amount of the livery and feed accounts, with costs of suit. IN RE BAIN AND CHAMBERS. Before KILLAM, J. Limitation of actions-The Real Property Limitation Act, R. S. M. c. 89, s. 4-Mortgagor and mortgagee-Foreclosure-Tax saleAssessment Act, s. 194–55 Vic., c. 26, s. 8, M. (1892). The surplus proceeds of land sold for municipal taxes in 1888 paid to the treasurer in November, 1890, were claimed in April, 1896, by the holder of a mortgage on the land, and also by the assignee of the equity of redemption. Judgment against the mortgagor had been obtained upon the covenant contained in the mortgage and execution placed in the sheriff's hands. The holder of the mortgage had in 1887 obtained a final order of foreclosure and had afterwards renewed the execution issued in the suit upon the covenant. It was contended by the assignee of the equity of redemption that all rights under the mortgage were barred by The Real Property Limitation Act, R. S. M., c. 89, s. 4, as more than ten years had elapsed from the time when the principal money secured by the mortgage fell due, also that the renewal of the execution opened up the foreclosure, and that the foreclosure action did not interfere with the running of the statute in his favor. |