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Maps, plates, charts, etc., may be filmed ."(t different reduction ratios. Those too large to be entirely includrid in one exposure are filmed beginning in the uppbr left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diff^rents. Lorsque le document est trop grand pour etre reproduit en un seul cliche, il est film6 d partir de Tangle sup^rieur gauche, de gauche h droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 LAW EEPOETS: CON'TilNINO DECISIONS OF THE BENCH OF THE SUPREME COURT IN NOVA SCOTIA, BETWEEN THE YEAES 1834 AND 1851. SECOND EDITION, tVITH MANY -A.DDITIONA.L REPORTS. BY JAMES THOMSON, Q. C. HALIFAX, N. S. : A. t W. MACKINLAY, PUBLISHERS, 1877. 184850 Entered la^ f,r P.-.i-riament of Canada, In the cUiCc To the Honorable Brextox Halliburton, Chief Justice of the Suiyreme Court for the Province of Nova Scotia. Sir,— In dedicating to you these reports, I perform a duty which is as agreeable to myself as to the whole profession to which I have the honor to belong. For half a century the public of this Province Las had the inestimable advantage of your sound common sense and legal learning in determining litigated rights. From the high estimation in which your decisions have ever been held by the profession, it is a source of great regret that so few are in existence in a tangible form. The fear that even those might be swept away in the Lethean stream, and the juridical learning of yourself and the other Judges who have illustrated the Bench of Nova Scotia, become merely traditional, has induced me to attempt the present compilation of judgments, delivered during a long course of years. I am, Sir, With the highest respect. Your most obedient, Humble servant, JAMES THOMSON. Halifax, December, 1853. PREFACE. fi Every man owes as a duty to his profession, that he use his Ijest exertions to leave it better than he found it. Even where talent is wanting, industry may do much to catch the rays which genius sheds in its meteor-like course, and stamping them in a ))Ook, preserve them for futurity. The stores of knowledge are increased, and the powers of original thii kers no longer mis- spent in working out problems that genius has already solved. The humblest member of a profession may thus contribute to aid the progress of science by setting down that which has already been the subject of thought. These views have led me, in pursuing the line of duty which nature had pointed out, to collect and arrange the more impor- tant decisions of our Supreme Court. To the profession, I felt such reports must be exceedingly valuable, since they render doubtful points certain, and enable its members to advise with promptness and accuracy. To the public, it is a boon of still more importance. It prevents the recurrence of suits on similar questions ; for few lawyers will be found who would advise clients to prosecute or defend a suit in opposition to a settled deciiiion of the court. Thus, by the publication of faithful reports, much of the ill-feeling engendered by long and har- rassing litigation — of the amount expended in prosecuting and defending suits — of the time of counsel, parties, witnesses, jury, and court, would be saved to the country. LAW REPORTS. MASON vs. CHAMBERLAIN. Easter Term, 1834. Where an Auctioneer received an article with instnutlons not to sell it under a certain price, held that if he shall sell it (ur a less sum, he was liable to lualce f^ouU the loss. This was an appeal from the Commissioners' Court, wliere judgment had been given for plaintiff. The plaintiff had sent a table to the defendant — an auctioneer — to be sold at auction, with directions not to let it go under 40s. The defendant re- ceived the table, with the directions, and sold it for a less sum. He refused to make good the deficiency upon the ground that it would have been a fraud, if, upon the sale, tlie auctioneer had bid, or provided a bidder for the owner. Hill, J. — This, like the case of Bexwell v. Christie, in Cowper, (p. 395) must be viewed as an action on the case against an auctioneer for carelessly and negligently selling at auction the property of the plaintiff for a less sum than he was directed, and undertook to sell it for. The case of Bexwell v. Christie seems to have been decided on the broad ground tljat the owner of goods sent to auction cannot employ a person to make a bid for him, unless in the conditions of sale he expressly reserves a bid for himself. The doctrine, however, to the extent laid down in that case, has not been approved of in later cases, and indeed has been overruled in many cases in Chancery ; and by those to which we have been referred, it appears to be now put beyond doubt that an owner of goods may employ a person to bid for him with a view to prevent his goods being sold at an undervalue ; and in doing this there is no offence, as it strikes my mind, against the laws of morality, fair dealing and good faitL In Braml)y & al. 8 LAW ftEPOBTS. [3 Ves. 020,] the owner of property .sold at auction employed a person privately to bid for him up to a certain sum ; the pro- perty, however, was sold for a greater price to the defendant, who refused to complete his purchase on the ground of the plaintiffs having employed a person privately to hid for him. The Master of the Rolls, however, decreed a performance to the contract. In the case cf Connolly v. Parsons [3 Ves., ()2o] an objection was raised to the completion of the purchase of an estate at auction, because the plaintiff had employed persons to bid at auction for the purpose of advancing the price above its fair value ; but the Lord Chancellor did not hold it any objection to a sale by auction, that a person had been employed by the vendor to bid for him, although he had not given notice. The same doctrine is held in Smith v. Clarke. [5 Ves. 477.] From all the ca.ses and books, I collect this to be the true principle, — that it is lawful for the owner of goods sold at auction to employ a person to bid for him, with a view to prevent a sale at an under value ; but that it is not lawful to employ persons to take advantage of the eagerness of bidders to screw up the price, or get up what is called a trap auction. [G T. R. 642, 3 Benj., 368.] There being therefore nothing illegal or immoral in the in.«itruc- tions given by the plaintiff in this case to the defendant, nothing to uphold or encourage fraud — nothing done with a view to .screw up the price of the article beyond its fair value, or to take advantage of the eagerness of buyers, it was the duty of the defendant, after he had consented to receive the article under those instructions, to have complied with them. I think, therefore, the judgment ought to be a^i^ied. N. B. — This decision, though in conformity with the rules and principles of the Court of Equity, is contrary to the prac- tice prevailing in Courts of Common Law. The conflict between the Courts was settled in England by 30 &; 31 Vic, Cap. 48. LAW REPORTS, f '4 ■I ilcLEAN vs. JACOBS. Vl'hirc the nur\«t «i a lot lotd a part, ami in the deml to the )frant«« dctcrlhtd the dlvldlnt; Ihie m ruaninK in a oerttiin direction by cdniimiia ; and the courac of tlie line waa iM>lntcd out on the land, aijrufd to, and ao<|«lf»ccd In for a miniber «f years : hold that auch lino could not b« dta- tiirbed, thouifh ahvwn not to ' 3 the lanio aa thr.t hi the d«fd. This was an action of trespa.sH trieo. Eliz. ossession ontinued cognized Cin.sman. rt stated 1 in this ^NY. he case md the i\ asked aken. id been iced an fter he or de- t if not lich he ence is "The of the > made akes a itift L«< law,) to be given, for there he is demand able." ' At common law, upon every continuance or day given before the judgment, the plaintifl* nught have been nonsuited, and therefore before the stat. 2, Hen. 4, even after verdict, if the court gave a day to be advised, at that day the plaintiff was demandable and might havo been nonsuited. The plaintiff, then, at common law, would be non- suited wherever he was demandable ; and che passage from Coke shows he was demandable to hear a verdict. In the case of O'Mealy et al. v. Wilson, [1 Camp. 482,] where there was a nonsuit at the request of the plaintiff, after the case had been gone through. Lord Ellenborough says, " At any period whore the plaintiff is demandable, if he does not appear, there shall be judgment of nonsuit against him, unless there be something on the record inconsistent with such a judgment. Nothing of that sort appears in this case to prevent the plaintiff from abandoning his suit when he is called upon to hear the verdict." It has been said that a nonsuit can onl^ be at the instance of the defendant, but the reason given shows in what sense we are to understand that position in the books ; for, say they, " where the case at Nisi Prius was called, and the jury sworn, but no counsel, attorn ies, parties, or witnesses appeared on either side, the only way was to discharge the jury, for nobody had a right to demand the plaintiff but the defendant. The Judge could not order the plaintiff to be called." I think a nonsuit ought to be entered. Bliss, J. — Whatever may have been the origin and ground of the judgment of nonsuit, I am of opinion that wherever the plaintiff is liable to have such a judgment entered against him adversely, he may obtain it for his benefit. What is a jtionsuit ? In the language of Lord Ellenborough, in Paxton v. Popham, [10 East, 868,] " a nonsuit is a judgment against the plaintiff for not appearing on a day when he is demandable." By neglecting then to appear and prosecute his suit further, he puts a stop to all proceedings and thus entitles the defendant to the judgment of the court against him. But the act which so entitles him to the judgment proceeds wholly from the plaintiff, he can at all times, >, hen he is demandable, by absenting himself, bring about such a judgment. It is obvious, therefore, that the plaintiff can, when so disposed, avail himself of this proceeding for his own advantage, provided it is not inconsistent with his previous proceedings as they appear on the record. Nor have such proceedings on the part of tha plaintiff, for his own benefit, grown 'very lately into use ; for we find so far back 14 LAW REPOBTS. IHl as the reign of Henry 4, a statute passed to restrain the right of the plaintiff. By this statute it was enacted, " that whereas upon verdict found before any Justice in assize of novel disseisin mort d'ancestor or any other action v/hatsoever, the parties before this time have been adjourned upon difficulty in law, upon the matter so found, it is ordained and established, that if the verdict pass against the plaintiff, the plaintiff shall not be nonsuit." Before this statute, then, it is evident that even after the verdict against him the plaintiff might become nonsuit by not appearing at the day given him to hear the judgment of the court. And to this effect is the language of Lord Coke, [Co. Litt,, 139 (b)] "atti-*^ common law, upon every continuance or day given over before judgment, the plaintiff might have been nonsuited, and therefore before the statute of Henry 4, after verdict given, if the court give a day to be advised, at that day the plaintiff was demandable, and therefore might have been non.suited, which is now remedied by that statute." And even since that statute, after a special verdict it was held that the plaintiff might still become nonsuit at the dies datus [Cro. Car., 575,] the reason of which seems to be, that until the judgment of the court was given no verdict had passed, since it depended on that judgment of the court what the verdict should be. The courts have, indeed, extended that statute beyond what the words of it might appear to warrant ; [Keat. v. Barker, 5 Mod., 208,] and where a plaintiff being dissatisfied with the amount of the verdict in his own favor, wished to become non- suit ; which, having a day given him to hear the judgment, he undoubtedly might have done before the passing of the statute ; the court refused him leave, and referred to the statute as if it clearly prohibited him. It passed against him as to' the higher damages which he wished to claim by a new trial. This position, that wherever the plaintiff is demandable he may be nonsuited, except after the verdict, under the statute of Henry 4 appears perfectly consistent with all the cases to be met with on the subject. Where the proceedings are in the same term with the appearance, and the parties are already before the court, no day is given over ; and they are, of course, not further demandable for any purpose. Such is the case where the de- fendant offers to wage his law upon his first appearance, and there the plaintiff cannot be nonsuit. [Lilly Prac] So it is said that after demurrer, if *he court give a day over, the plaintiff may be nonsuited because he is demandable at that day ; but not after the demurrer has been argued, and the court LAW REPORTS. 15 I 't are fnving their judgment — although only two of the Jndges have given their opinion — the plaintiff cannot be nonsuit ; [1 Sid. 84, 2 Sid. 113, 3 Leon. 28,] because such a case has been likened to that where a verdict has passed. But as the above statute does not at all apply to such a case, I can scarcely think that a sufficient reason ; and a better one, it appears to me, may be given. The entry on the roll in such a case would state the demurrer, and the continuance over to the dies datus to hear the judgment of the court ; it would proceed to shew that at the said day given, (and when the plaintiff was demandable,) came the said parties, kc. Here then the plaintiff is before the court, and being there he has no further day given, and consequently under the above rule cannot then become nonsuit. If the court liad not commenced with their judgment, such entry on the roll could not be made ; and having commenced, decency and respect for the court require that they should not be interrupted by any motion which is to cut short the decision of the court in the very act of its being delivered. I can well understand, then, why this motion should not be permitted, and that the court should refuse to allow the plaintiff to become nonsuit, which would no longer here be matter of right indeed, but of favor ; and that could only be granted by their consenting to take no notice of thei" having commenced their judgment, that it might be no longer necessary to state on the record the appearance of the party at the day. It was, to be sure, once held that a nonsuit could only be had at the instance of the defendant ; and accordingly in Arnold v. Johnston, [1 Strange, 267,] where the cause was called, and the jury were sworn, but no counsel, attorneys or parties appeared on either side, the Judge thought that the only way was to dis- charge the jiiry, for that nobody had a right to demand him but the defendant, and as he did not the Judge could not order him to be called. And in the late edition of Saunders, [1 Saund., 195 (c), n. (f),] the learned annotators remark, " that in the old books discontinuance and nonsuit are frequently used as having the same import ; but in modern times it has been held that a non- suit can only be had at the instance of the defendant ;" (for which the above case of Arnold v. Johnston is referred to,) " which doctrine," it is added, " has completely distinguished the term." It does appear, certainly, that in the older cases these terms are used almost indiscriminately ; but it appears a mistake to say that a nonsuit cannot be had but at the instance of the de- fendant, although the above case from Strange, and that of 16 LAW REPORTS. Harris v. Butterly, [Cowper, 484,] show that such opinion was at one time held. In O'Mealy v. Wilson, [1 Camp., 484,] in scire facias against, the bail, the plaintiff' was nonsuited, although the Attorney General, for the defendant, opjwaed it. Lord Ellenborough then said, " I have no doubt he may be nonsuited in the action." " At any period when the plaintiff is demand- able, if he does not appear, there will be judgment of nonsuit against him, unless theie be something on the record inconsistent with such judgment." In Hulhead v. Abrahams, [3 Taunt., 81,] which was an undefended cause, Bayley, J., nonsuited the plaintiff for a variance between the proof and the declaration. In Symes v. Larby, [2 Car. & P., 357,] in replevin, Best, C. J., nonsuited the plaintiff where no counsel appeared for him, on the authority of a case so decided by Abbot, C. J., though it was objected to by the defendant's counsel on the ground that it was the defendant's record, and that a verdict must be taken for him ; and another case to the same effect is added in a note to this case. And in Murphy v. Donlan, [5 B. & Cr., 178,] it was decided after argument, and therefore against the wishes and not at the instance of the defendant, and overruling other cases and the established practice that where judgment by default had been suffered by one defendant, the plaintiff on a trial of an issue joined with the other defendant may become nonsuit. The plaintiffs right to become nonsuit must, after these cases, be admitted to be wholly independent of the defendant's acquies- ence or instance. It rests solely, as before stated, on this ground, wherever he is demandable he may be nonsuited before verdict has passed in the cause. Rut the plaintiff* is not merely demandable when a day is given over ; he was always demandable when a verdict was about to be given. And it was the old practice ; and, as stated by Lord Tenderden in Murphy v. Dolan, [5 B. &; C, 179,] it was so followed in some cases within his memory (and it may be added that such is the common, and I believe the invariable practice which prevails in this Province,) for the officer of the court to ask the jury, after they had considered of their verdict, if they had agreed in their verdict. If they answer in the affirmative the officer then called the plaintiff by name to hear the verdict, and if he appeared the verdict was pronounced, — if he did not appear to prosecute his suit he was nonsuited. The reason of this was [3 Bl. Com., 376] tb \t the plaintiff should appear in order that he might be amerced for his false claim if the jury gave their verdict against him. If he did not appear, a nonsuit was entered, for a verdict cannot be given in the absence of the plaintiff". 1' E ' I LAW REPORTS. 17 lion was 484,] in although !. Lord lonsaited demand- [ nonsuit lonsistent was an iff for a lest, C. J., • him, on gh it was lat it was taken for a note to 8,] it was 3s and not cases and t had been f an issue hese cases, b's acquies- lis ground, )re verdict ly is given IS about to i by Lord it was so Y be added practice court to ct, if they affirmative le verdict, he did not ison of this in order ■ gave their y^as entered, aintift*. 4 Notwithstanding, therefore, that the plaintiff had a day given him in court, and that he was thus during the trial in court, it was further necessary, according to the ancient practice, to de- mand or call him when the jury were about to give their verdict after they had stated that they were agreed. The plaintiff having been called in this case at the instance of the defendant, before the verdict was given in, cannot preclude him from the right to be called at the proper time when he should be called, viz., when the jury are about to give their ver- dict ; for his answering then does not put him more completely before the court than he was previously to his being so called. At the return of the jury process, when a day is given him, unless he then made default, he is in court, and the very language of the postea shows it : " Afterwards at that day, before the Justice* aforesaid, come the parties aforesaid, &c. ; and the Jurors of that Jury being summoned also come, who to speak the truth of the matters within contained, being chosen, tried and sworn." Thus far it is the same whether a verdict is given or the plaintiff' suffers a nonsuit. If a verdict ia given it is unnecessary to re- peat that the plaintiff is present, because that already appears on the record ; and therefore, although the practice has been to call him to see if he be there, if he answers the verdict is taken without that unnecessary repetition on the record ; but if he should not answer then a different judgment is necessarily en- tered, for the verdict cannot be pronounced in his absence. But the record first gots on to state, that the jury withdrew from the bar to consider their verdict, and after thev had considered thereof, and agreed among themselves, they returned to the bar to give their verdict in this behalf ; upon which the said plaintiff solenmly called, comes not, nor does he further prosecute his bill against the defendant, therefore, &c. This form of the record however, shows that it is for the pur- pose of his being present at the delivery of the verdict that the plaintiff is called ; and therefore that the true and only time to call him is just when the verdict is to be pronounced, as indeed all the authorities state ; and that this right to be called continues up to the last moment until the verdict has actually been pro- nounced, or as the statute of Henry, which has abridged the plaintiffs right, has stated until the verdict has 2>ci8sed in the cause. The fact, therefore, which appears in the case before us, that the jury stated they had agreed upon their verdict, is what, according to the practice which did exist in England, and does exist here, should be first ascertained by the officer before he calls the plaintiff; and is also precisely the language entered in the 18 LAW REPORTS. record liefore it is there stated that the plaintiff was called and mad(! 468,] and the case tlien cited, leave a wide field open for the discretion of the Court in the protoctioQ of the Sheriff. " If theror be no established practice (he says) in such oases, there is at least a rule of right, reason and justice which ought to be applied to the case before us." In that ease his Lordship rested the appli- cation of these observations upoii the delay, but they are very strong and might well apply to other cases of hardship. I havfr not, however, been able to discov"er that they have ever gone so far as to relieve the Sheriff even in those hard cases when there has been no neglect or delay on the part of the plaintiff, nor could they well do so, for as Lord Chief Justice says in the case before- cited, " hy the express ivorcls of the statute trie Shei^ff is charge- able to have the body at the day of the return. I think it can scarcely be contended that if those words had not been introduced into the statute the Sheriff would still have been liable to produce the body as he was at common law before the statute passed, because he was not then bound to enlarge the defendant upon bail. The writ commanded him to. take the body, and if, after taking it, he let it go upon such bail as he chose to take, and had it not on the day of the return, it was his own act, his own default, for which he was liable to be amerced by the Court for disobeying the writ, and also to an action by the party either for an escape or a false return. [2 Saund., 51 -.51a., n. 44.] But after the act passed the Sheritf was- compelled to enlarge the defendant on bail, and. if the clause had 1 a (lepa- uce in- 1 it waa interest (1 action, ho hay \mve> bring- ing the riod to to the of any exprea- East., for the If there, at least plied to appli- re very I havfr gone so n there or could a before' charge- rds had ill have f before irge the ike the as he it was. to be a to an n-n. [2 ritr was use had if.- LAW REPORTS. 23 not been adtle r was not ute meant lad taken when no ng to the iking him e was the 1, but the tate of his eriff with d with — bound to j:es proper sible per- le Sheriff vs, and if suiiicient esponsible this in an ices under ffto hold ley would under the ivhere the I to let the Red he did Supreme 'or taking lugh they [• decision II the Act ) be bailed at statute, t an action right to be S. That } the body as bailed f the de- render or d to bring in the body of the defendant after he has returned that he has enlarged him under the Act, and that if the sufficiency of the bail is disputed, the fact of the bail being sufficient or insufficient must when so disputed be submitted to a Jury. For these reip,son» I think the plaintiff can take nothing by his- motion. WiLKLXS, J. concurred with the opinion given by the Chief Justice. Hill J. — (After going over the facts already stated in the- beginning of the opinion cf the Chief Justice.) The whole question turns on the English statute of 23 Hen. G. and our Provincial Statute of the 18 Geo. 3, and really when con- sidered with attention is not attended with any difficulty or doubt, and after consid-'-p^^'on it strikes me with some astonish- ment that the liability o\ ...x.jriffs under our statute has not been long since solemnly settled. Previous to the statute of Henry, a Sheriff was not obliged unless on a writ of mainprize, to admit to bail a peison arrested on mesne process. In fact, however, they did take bail from parties so arrested and for such indulgence, for indulgence it was, they exacted large sums. This practice was found so grievous as to induce the interference of the Legislature. The Sheriff wa» bound at common law to have the body of the defendant at the return of tha writ, and he could offer no excuse if it were not forthcoming, for the Court would amerce him until he produced the body. Then came the statute of Henry, which recited the great extortion and oppression that had been in the realm by Sheriffs,, under Sheriffs and their clerks, and enacted that the said Sheriffs and all other officers and ministers aforesaid, shall let out of prison all manner of persons by them, or any of them, arrested or being in their custody by force of any writ, bill, tfcc, upon reasonable sureties of sufficient persons having sufficient within the Counties where such persons be so let to bail." And the 14th section enacts that " if the said Sheriffs return upon any person cepi corj^ua or reddidit se, they shall be chargeable to have the bodies of the said persons at the days of the return of the said writs, bills or warrants in such form as the'^'' were before the making of the said Act." We gather then from the very preamble of this Act, that the officers enumerated therein did not stand m a very favorable light before the Legislature, and that it was not its intention to make any enactment in their favour, but in favour of the subject upon whom great extortion appears to have been practised, nor can we find anything to lead to the supposition that it wa» $0 LAW REPORTS. intendc'l to relieve the Sherift from any of the tespon.sil)ilitie.s he Was un 177,] show clearly that the Sheriff is bound to have the body \lnder the statute. Porteru v. Hanson, et al, [2 Saund, 59)] was case against the Sheriff of Middlesex for taking insufficient bail upon a bill of Middlesex, sued out by the plaintiff against Michael Di'ew who did not appear to the action at the return of the Bilk They pleaded the statute of Henry, and that by force thereof they admitted Drew to bail on the security of Lee &; Allen, then iiaving sufficient within the County, whereupon they returned cepi corpus. To this plea there was a demurrer. It was agreed for the plaintiff that the action might be sustained upon the 14 section, which makes the Sheriff chargeable with the body of the prisoner, for before the pastnng of the Act if the Sheriff had taken a prisoner by writ and let him at large, and afterwards returned cepi corpus, he was chargeable with escape or false return. But it was resob^ed by the Court that the action did not lie, because the Sheriff was compellable by the statute to let the prisoner at large upon reasonable siireties, and as to the clause of the statute that if the Sheriff return cepi corpus, he shall be chargeable to have the body, it is to be understood that the Sheriff may be amerced for not having the body at the day, and 1t)ecause he is liable to be amerced, the statute gives the sureties for his indemnity. And at common law if the Sheriff returned ixpi corpus and had not the body he was ameiced, but no action lay. Here there is a decision with those already mentioned, and many more might be given, showing very distinctly and clearly that the Sheriff, after the statute of Henry, could be amerced for Hot having the bcdy only in virtue of the very words of the 14 LAW REPORTS. 81 ii»ilitie.s li6 ed hi in to y put the i the body ] was case bail upon Michael the Bill. reof they len, then returned as agreed m the 14 dy of the eriff had Fterwards or false n did not to let the clause of shall be that the day, and sureties returned 10 action ned, and I clearly erced for •f the 14 section. And the inference is it seems to me inevitable that if that section were not to be found in the statute, the Courts in England would not have held the Sheriff chargeable with tho body as before it passed. The case.^ cited shew that in England an action on the case will not lie against the Sheriff for taking insufticient bail, and the decisions commend themselves at once to our reason, for as the Sheriff is "bsolutely chargeable to have the body at the return of the writ and will be amerced ad injinititm until it is produced, whtther he took sufficient or insufHcient bail (the bail-bond being f)r the appearance of the party) it would be absurd and unjust to punish him for taking insufficient bail for the appearance of tie defendant, Avheninfact the Sheriff himself w^as bound to have the body forthcoming. Had the statute relieved the Sheriff frori naving the body at the return of the wiit, or rather had it been silent, then there might have been a good rea.son for supporting s\ich an action, for other- wise there might be a failure of justice, b'icause the Sheriff who is the sole judge of the sufficiency of the bail might take very insufficient ones, and if no action could be supported against him, and he could not be chargeable with the body the plaintiff might be without remedy. The statute makes no provision it will oe observed for the assigning to the plaintiff the bail-bond taken to tho Sheriff, for whose benefit alone it was, and therefore if he did not chose to assign he could be got at only by amercemen'. for refusing, and if he did assign, as the action might have been brought in his own name, he might have released it and thutj at law defeated the plaintiff. These then I consider as good reasons why tie Sheriff was by the statute held chargeable with the body. It was not until the 4 and 5 Ann. that the Sheriff was bound to ass'.gn the bail Lund to the plaintiff, but neither this nor any prior or subsequent statute has altered the provisions of the 23 Hen. 6 as regards the liability of the Sheriff to have the body. It remains therefore in full force. So that in fact as far as the present case is concerned the common law was in no respect altered by the statiite of Henry. The same duties and indeed gi eater were imposed upon and the satne liabilities attached to the Sheriff. It is clear then that in England the Sheriff would be bound to bring in the body, and if the statute under which the Sheriff must if at all be liable, .should be found similar in its enactments to the statute of Henry, I should hold mystif bound by the decisions in Engla.id, provided they are founded upon the san}e facts and circumstar;ces as those brought before Us. 82 LAW IlEPOllTS. It cannot be disputed tliat the duties and liabilities of the Sheriff in tliis Provineo with respect to bail arise out of our statute of 18 Geo. 3, before mentioned. That statute gives the subject arrested upon incsne process a right to be bailed, it prescribes the mode of taking it, the nature and tenor of the b^-il-bond, and the manner of proceeding in the action. But it is widely different from the statute of Henry, The one obliges the Sheriff to admit to bail, ])ut obliges him also to have the body. The other compels the Sheriff to admit to bail, but does not compel him to have the body. Upon the omission of the 14 section of the statute of Henry, in our statute I entirely l)uild my opinions. From that omission I can drav\r no other conclusion than that it never was the intention of our Legislature to fix upon the Sheriff those liabilities to which he is subject by the statute of Henry, and the practice thereunder was before the framer of our statute. But whether it was or was not so intended, our statute obliges the Sheriff to let the defendant to bail, and does not oblige him to have the body, and we should by making this rule absolute punish the officer for obedience to the law. The King's writ commands him to take the body, and a law of the land compels him to release that body on sufficient bail. The statute of Henry has been felt to bear hard in many cases upon the Sheriff, and therefore the Courts in England have constantly relieved him when there has been delay or irregularity in the proceedings, and we ought not unless upon strong grounds to add other duties to those already sufficiently onerous upon the Sheriff Although I might content myself with having gone thus far, it may not as the question is new be unnecessary to remark that there are other essential differences between the two statutes.* But without deciding upon this or making any further remarks upon the difference between the two statutes. I repeat we are called upon to impose a penalty upon an officer of this Court, and before I could assent to do so a clear case must be shewn to warrant it. Such case has not been presented to us, on the contrary, I think for the reasons already stated the Sheriff under our statute is not bound for the forthcoming of the body, he is functus offi^cio, when he has taken what our statute compels him to take, a bond with two sufficient sureties. This under the statute he might assign to the plaintiff /or his benefit who may * As the peculiarity in the clause to which the learned Judge alludes, viz., the personal appearance of the defendant in Court no longer exists, I have omitted that portion of his decision. LAW REPORTS. 33 s of the r statute ; subject ;nli(js the )nd, and The one > to have liail, but ission of entirely lan that ipon the /atute of 3r of our r statute does not this rule le King's the land J statute ipon the nstantly in the s to add Don the hus far, ark that utes.* remarks we are urt, and own to on the ff under ^, he is els him der the 10 may le pergonal la decision. Ijring an action thereon in his own name. By this decision no injury will be worked to the plaintiti", for we shall th(>n leave him to pursue his action on the case against the Sheriff' for tak- ing insufficient bail, as in the case under the English statute^ of iTOeo. 2, Cap. 19, relating to replevins. Such was the action of Hundle v. Blades, [5 Taunt., 255.] As to what might be con- sidered sufficient sureties under our statute, I give no opinion : the plaintiff, however, is entitled to "uch sureties, and with them he ought in justice to be satisfied, without any resort to the Sheriff. Though as I have already said, nn action on the case for tak- ing insufficient bail will not lie under the statute of Henry because of the 14th Section, yet such actions have been held to lie maintainable in the Uniteu States of America unuld nob yet in rred the rt would 1 of the ter this, bhus the rhich he custody. Without, however, disputing the policy or propriety of such jM'actices, it is at least proper to inin- dation on which it stands, for the reasons which support such junctice in England may he indisputable, ar.d yet be wholly inapi»licfll»Ie to this Province. Now this mv)de of proceeding in England owes its existence )ert, C. P., 21.] The Shentt* having- returned ccjii corpus, it is a breach of duty in him not to bring him in according to his return for which the Court amerces him, as one of their officers who had been disobedient to their writ which is leturned and filed. The Court amerces him liecaiise it uppcarn on record that he has disobeyed the King's writ. So in Buirough v. Ro.s.Hiter, [2 H. Bl., 434,] Eyre, C. J. says : " If the Sluirirt" has let the partv out of prison upon bail he must return cepi corpus, and when he has made that retuni, ho is by the express words of the statute of Hen. (J, in the 14th branch of the 1st section, chargeable to have the body of the person at the day of the return according to the course of the Court; if he has not the l>ody to produce he is to be amerced, and being amerced, he may then and not till then put the bond in suit to reimburse himself. The practice and authority of the Court in this proceeding against the Sherifi' resulted therefore entirely from the statute of Hen. 0. But next comes the important point of our enauiry. How stands the law here? and have we the same authority to .sanc- tion the adoption of the practice ? If w^e were without any enactment of our own on thissubjectr there might have been, as I confess there would have been in my own mind, great difficulty in deciding that we should iiot be governed by the .statute of Hen. G. What was our «.arliest statute on this subject I have not been able to ascertain. An act concerning bail passed in the C Geo, li, the title of which only i» printed. The first now to be found in our statute book is [P. Laws, vol. 1, p. 140,] 8 Geo. 3, Cap. 7^ entitled " an Act for taking special bail in the County upoii actions depending in the Supreme Court of this Province," which authorizes the appointment of Commissioners to take ciffidavits to hold defendants to hail and to mark the writ for hail accord- ingly, Two other acts i* appears were passed soon after this, viz. : 8 and 9 Geo. 3, Cap. 13, and 9 and 10 Geo. 3, Cap. G, con- cerning bail, of which the titles only are printed. Then foUow.s LAW RKPORTS. 37 Leing ihc 15 and 1(5 Geo. 3, Cap. 4, [P. Laws, vol. 1, p. 108, taken from Eng. Stat., 12 Geo. 1, Cap, 2!),] "in amendment of the several laws concernin;,' bail," which enacts that in all causes where the I XJi the Provost Marshal '>r his Dep- .1. )all uty may arrest, imprison or liold to hail any debtor or debtors upon affidavit of tli<; defendant, and the sum speciHed exceec iprison o tin; defendant, and the sum speciHed in the aftidavit shall be endorsed on the writ for which the Provost Marshal, Sh'-ritt", Coroner, or their deputies fthdll take bail, and for no nmre Now these two acts appear plainly to recogni/e tlui law as introduced l)y the statute of Hen. 0, viz. : that it was obliga- tory (m the Sheriff to take bail ; but yet that statute is neither ^^-nacted here, u[) to the period to which the above act refers, nor ■were any other statutory regulations in force, unless contained in some of those expired laws. The English statute then, and the practice founded upon it, may have been considered to have been lirought to this Province : at all events, they nnist, in some measure, have been adopted from necessity, or s(jme other expres.s regulations nuist have been made, since Sherifis here could no longer, after the two acts above mentioned, be considered as having the common law right of taking or rejecting bail at their jjleasure. But however the law may at that time have been held, and whatever may have been the Provincial practice under it, as it then stood (if any settled practice indeed did exist, which is rather questionable) all uncertainty with respect to this parti- cular subject was soon removed by an express statute, that of 18 Geo. 3, Cap. G, which was passed about three years after the one last mentioned : " to amend, render more effectual, and reeen from design. And that inten- tion, it appears to me equally clear, must liave been to alter tho responsibilities of tl>e Sheriti* whicli resulted from tlie omitted clause. Instead of compelling him first to take bail and to return cepl corpuH as if he had not done so, and then making Idm liable to punishment as for a breach of duty and conte.npt, whieli would not, I think, be the most obvious means of giving tlie plaintifi" redress against the Sheriti' if a remedy by statute were now for the first time to bo provided, our act has pur- sued a more plain and direct course. It prescribes alone the conduct which the Sheriffs must pursue in taking bail, namely ; that they must be fiujlficienf, leaving to the plaintiff', if he is injured l)y a neglect of duty in this particular on thei»art of the Sheriff", the remedy by action whicli necessarily results to him therefrom. Nor was it without a precedent directly in point derived from the English Statutes themselves. [11 Geo. 2, C. 19, ^ 21.] The statute of 11 Geo. 2 which compels Sheriffs, for the benefit of landlords, to take proper replevin bonds, may have been adopted by our Legislature as their guide on this occasion, under which the Sherifi* is not punishable by attachment for taking insufficient securities ; but the plaintiff's remedy is by action : [2 T. R., 017] a further and very convincing argunuiut^ I think, that under our statute, as it is, no attachmeiit can be granted, but that the plaintiff must resort to his action as in that case. In England, it is true, the remedy under the statute of Henry is different, and the ivason is because that statute is itself so different from the statute 11 Geo. 2. And, on the other hand^ in this Province the English practice and proceedings ought not to be pursued against the Sheriff, but tlie plaintiff .should be left to his action, not oidy because our Provincial act differs from the statute of Hen. 0, but because it agrees with the other statute of II Geo. 2. Nor can there assm-edly bo anything unjust either to the plaintiff or to the Sheriff in sending them to the same tril)unal — the jury — on a question of taking insufficient suretii'S on a bail-bond, which is the true one to decide, the similar point in a replevin bond. For the jury may award such damages as may be reasonable and proper, while the Court has, according to the rule in England, no middle course to pursue, but must either reject the application altogether or sulject the Sheriff to the payment of the whole debt and costs. It may also be noticed that our act does not, like the English statute, require the Sheriff to let the defendant on bail only when he gives sureties of sujffi.- LAW REPCRTS. 3!) giving elent persons havhig suj[fi.cientrmthin the Couvty, and it soeins till' Slu'i-iff could not be compelled to take sueli as did not answer this description. [13 East. 320.] Our Act is nnicli more o-eneral, and is at once more in ease of the defendant, and im- poses also a greater difficulty on the Sheriff, who cannot so well sati.sfy himself of the sufficiency of iiose whose suffi- ciency is not confined to his own Cojnty, and yet who cannot reject them without the hazard of an action by the defendant. Tliis is an additional r a.son for not extending his liability beyond what it is expressly made by the statute. His being liable to an action is, on the other hand, a sufficient protection to the plaintiff against any misconduct of the Sheriff. But the very words used in our act so nearly resemble those in the stat- ute" of Geo. 2, that they strengthen my impression that our Leoislature meant the remedy under that should also be followe*! umU'r our own. The language of that statute is tliat the Sheriff shall take the bond of tivo responsible persons, in ours the words are tivo siiffcdent sureties. At all events it is rath(.'r singular that we should have departed so much from the word- in ti- Of the statute (jf Henry, and adopted so nearly that of Geo. 2, and it v.^ould, I think, be still more remarkable if this wph purely accidental when the object of the two statutes are taken into consideration. But there is another l)ranch of our act which deserves also to be noticed, viz. : that which requires the bail-bond to be assigned to the plaintiff. In England the sufficiency of the bail was re'|uired solely for tiie benefit of the Sheriff, and was introduced into th"! statute for his indemnity and protection as stated in Clifton V. Web, [Cro. Eliz., 308,] " that if he be amerced for the non-appearance of the party, he may liave his remedy over against the bail," or, to use the language of Postern v. Hanson, [2 Saund., 00 c.,] " l)ecause he is liable to be amerced to the King for not liaving the Vjody, the statute gives him advice that tfie sureties shall have sufficient within the County for his indem- nity." In reading such expressions and numerous other authori- ties to the same effect, we must not, however, forget that the opinion of the Courts as to the effect and meaning of this clause of the statute, did not depend on that clause alone, but was greatly, if not entirely influenced by the decided language of the 14th clause, compelling the Sheriff still to have the body at th.^ day. When that statute passed, the bail might reasonably be said to be for tho Sheiiff's security. He was not compell- able, it must be recollected, to assign the bail-bond, and however sufficient the bail may have been, it would have been of little '^: 40 LAW REPORTS. advantage to the plaintiff if the Sheriff did not think proper to assign it. And one principal benefit derived from the practice of amercing the Sheriff was, in fact, to compel him to make an assignment of the bail-bond which he had taken. The statute of Ann, wliich at length compelled the She-iff to do this, gave the plaintiff cei'tainly an interest in the sufKciency of the bail, but still that statute left the former one of Hen. G wholly unaltered, and, consequently the construction which it had received remained as it had always had been. If, however, the statute of Ann, instead of providing only for the assignment of the bail-bond by the Sheriff at the request of the plaintiff had, at the same time, gone further and repealed the 14th section of the statute of Hen. 6, how completely would it have shown that the legislation no longer meant that the bail should be considered as taken for the benefit or for the protection of the Sheriff alone. They could not be for his indemnification, because there would be no liability against which he could require indemnit". His duty would be performed and ended by taking suffici< n^ • xnd "ly the assignment of the bail-bond when demanded otnim. Now our Act has just done this ; it at the same moment directs the Sherift to take sufficient bail, and to assign the bond. And the entire omission of that clause which imposed the further duty on him of having the body at the return is as strono-and intelligible an inteipretation of its meaning as a repeal of that clause would have oeen of the views of the English Legislature, if it had been made by it when the statute of Ann was passed. The oToimd wovk of the attachment as we have seen is the Sheriff"s return of cepi corpus which he was obliged to make ; he falsifies his own return if he has not the body, and for this he is punishable. Upon referring to the writ in this cause, I find that the return is that he had discharged the defendant on bail. If this were an improper return the attachment against the Sherifi should have proceeded upon that ground — it would, if no<' sanctioned by law, be no return; but it could not support the rule for bringing in the body, which the Sheriff returns he has not got, nor an attachment against him for not bringing it in. Is such a return then no return under our statute ? To say nothing of the common usage which supports that adopted in the present case, the oidy answer which need be given is that on v, hich I have already so nuich dwelt ; viz., that our Act is without that clause which made such a return of ce^J^ eoiyus necessary. Bi^t our Act it appears to me furnishes even some positive proof of the correctness of the present return. It directs that " the Shei-if^' shall then and there in Court, upon the request of the plaintift' ''4 LAW REPORTS. 41 proper to I'actice of iiake an 3 statute lis, gave the bail, ) Avholly it had sver, the imont of ititf had, ;ction of wn that nsidered iff alone, B would ■r:. Br, K md m. Now ects the ^nd the duty on elligible i would id been 1 is the ' make ; this he I find )n bail. Sherifi if no<-. ort the has not in. Is lothinof present hieh I it that . But ■ of the Sheriff' laintift' ^ or his attorney, assign the bail-bond by endorsing his name thereon for the benefit of the plaintiff." Is it not then most reasonable if the advantage of the plaintiff' himt-elf be alone considered, that where the Sheriff' has taken bail which he is then to assign over, that his return should apprise the plaintiff' that such is the case. I have myself no doul»t tliat the return made in this case was the correct and true one, which the duty enjoined on the Sheriff' by our act required him to make. And this return may also help to establish the point more immedi- ately under Considerption, that with us the ren:edy against the Sheriff" in such cases is by action on the case. The opinion of North. J. C, in Ellis v. Yarboro, is to this eft'ect, in which, after some doubt, it was finally settled that an action would not lie arjainst the Sheriff" for taking insufficient bail — " there would (said he) be some color for the action if the Sheriff" might return that he let the defendant to bail, for then It might have been necessary to have alleged the sufficiency of them, which might hav^e been traversed, but now he must pursue the substance of the statute ; so far as to take bail he is the proper judge of the sufficiency. And when the bail is taken he must return a cejn corpus, so that he is only to be amcced till he bring in the body." The inapplicability of this latter part of this opinion to our stat- ute has already been pointed out. On these grounds, I have no doubt whatever that the attach- ment cannot be granted and that an action will lie in this Province against the Sheriff' for taking insufficient bail. We but decide the law as we find it, and if the jiolicy of it should be questioned, as I am far from saying it is by me, I can only add, in the language of Eyre, C. J., in the cuse of Burrough v. Rossiter : "Let the Legislature, if the matter is of sufficient weight to merit its interposition, alter the law." WHEELOCK vs. McKOWN. Easter Term, 1836. Where plaintiff cl.aimed under a Orart from the Cr«-*n, containing a condition that Grant shall be void It not settled on within a certain time, held that a subsequent Grant from the Crown for the same locus, under which defendant held, was void, there having Oeen no inquest of otllce previoai to the issuing of such subsequent Grant. This was an action of trespass quare chiusuvi fregit, and for cutting down and carrying away trees ; tried at Annapolis. Pleas the general issue, and also that tha locus in quo was the soil and 42 LAW REPORTS. freehold of Francis Smith ; and that the defendant, as his servant and by his command, entered and cut down the trees. Verdict for the plaintiff. Rule to set verdict aside and for a new trial. Hill, J. — The place where the trespass was committed is Lot No. 47, at Nictau, in the County of Annapolis, and is called Steele's Lot, from having, as it appears, been originally granted to a person called Steele. The only point to which the attention of the court ought now to be directed is, as to the operation of the two grants that have made their appearance upon the trial ; the case evidently Itcing with the plaintiff, provided the latter grant to Smith shall be considered as having no operation to give him a title. The jury have found the possession to have been in the plaintiff, and upon testimony quite sufficient to warrant such finding ; and they had the whole testimony before them. The case lies \vithin a narrow compass, and may, 1 think, be disposed of without much difficulty after the able argument it has under- gone, in which it is but justice to the gentleman who opened it on the part of the plaintiff, to say he bore a creditable part. Now as regards the grants to which I have adverted, how does the case stand. On the 30th October, 1765, a grant of confirma- tion is made by the Crown, to various persons, of certain lands, including the locus and forming the township of Annapolis. The lands w^ero granted in common and undivided, and each grantee was entitled to a share or right. Steele being one of the gran^o-es, appears to have drawn lot 47 as his share or right, or part of it ; for I have not discovered that this lot formed the whole of his portion. This grant contains the following words : " And for the more effectual accomplishment of His Majesty's intentions of settling the lands within this province, the grant hereby made is upon this further condition, that if each and every of the said grantees shall not settle either themselves or a family on eacli of their respecti"- e shares or right, with proper stock and materials for the improvement of the said Ian \s, on or before the last day of November which will be in the year 1707, then this grant shall be null and void and of none effect to such of the said grantees as shall fail to settle the premises in manner aforesaid, and within the time above limited. And the Governor, &c., may at his pleasure grant the rights and shares of all and every of the grantees mentioned in this deed so failing, to any other person or persons whatsoever in like manner as if this grant had not been made." Grant dated 30th October, 17G5. Grant to Francis Smith dated 1st July, 1803. LAW REPORTS. 4S his servant 5. Verdict new trial. tied is Lot 1 is called y granted 3 attention tion of the trial ; the ktter grant ^ive him a en in the rant such lein. The e disposed las under- 10 opened le part. how does confirina- lin lands, 'olis. The 1 grantee !graD^o'es, ait of it; )le of his Majesty's ;he grant Bach and Ives or a h proper I -Is, on or ear 17G7, ; to such 1 manner Jovernor, all and , to any his grant The grant conveys a freehold upon condition that the grantee shall perform such and such thir^"" The very clause that I have read, and in which the defendant has placed so great reliance, contains the word condition. This is by no means like the cases where an estate is granted dmxmie vidiiiiate, or dum aisia et sola vixerit, or where words of limitation are used, such as dunnnodo, quamdiu, donee, quousque, and the like ; nor whei-e a man by will devises land to his heir upon condition that he pays, or does such an act, and for non-payment devises it over. On the 1st July, 1803, the Crown made a grant of the same lot No. 47» being the Steele lot, to Francis Smith named in the second plea, without office found ; and the question is, had the King a "ight to grant to Smith. I feel no difficulty in saying he had not. It cannot be denied that l)efore the Crown can laake a second grant the condition of the first grant must be unfulfilled ; and that that fact nmst be shewn by somo testimony and before some tribunal, and at some time. If the Crown is not bound before the second grant to shew the conditions of the first broken, it must shew it afterwards, or at the least atford the grantee an op- portunity of shewing that really he kept his contract with the crown. The condition of thegmntof 1765 is: "That if each andeveiy of the said grantees shall not settle either themselves or a family on each of their respective shares or rights, with pi-oper stock and materials for the improvement of the said lands, on or before the last day of November, 17C7, then the giunt shall be void." Now I can find no proof in the case tliat Steele did not settle either lumself or a family, with proper stock and materials, on his share or right in this grant of the township ; nor do I find that he has had any opportunity afforded him of shewing, if that burthen lay on him, that he had performed the conditions. To strip this man of his freehold on presumptions, does not meet my view of either the law or justice of the case. The verdict might be sustained on this consideration alone* and the argument stopped in limine. But the grant of 1803 to Smith is a nullity ; no office has been found, and the King had not in 1803 i-einvested himself with the title that passed out of him in 1705, and therefore not being in possession he could no more grant than an individual out of possession could grant. I do not feel it necessary to advert to what has been urged on both Sides as to the construction of grants from the Crown ; they are to be construed accoi'ling to the evident import of the words used, and those of the present grants are too plain to be mistakeu* wsmmsemmoBem' 44 LAW REPORTS. Our decision in this case may be wholly rested upon that of Doe on the several demises of J. Hayne, of His Majesty King George the third and others vs. Elizabeth Redfern, 12 East, Oo,and cited at the bar. The doctrine as applicable to this case is there fully discussed, and all the leading cases gone into ; and the court decided tliat the statutes of 8 and 18 Hen. 4, ch. 10 and 6, restrained the King from granting until office found, and that all grants made without office were void. The first of these :: atutes recited as a grievance that the lands and tenements of many of the King's subjects were seized into the King's hands upon the inquest of escheators, or let to farm by the Treasurer or Chancellor before such inquests were returned; and to remedy that, the statute enacted that no lands seized into the King's hands upon such inquests should be let or granted to farm by the Chancellor or Treasurer, or any of the King's officers, until the inquests and verdicts be fully returned into the Chancery or Exchequer, but that they should remain in the King's hands a month after the return, and patents made to the contrary should be void. The latter statute recites the provisions of the former act, and sets forth that, to evade them, persons had obtained gi-ants before inquisition or title found, pi-etending that such were not prohibited by the act ; and then enacts that grants so obtained should be void. The object was that the possession ■should be open to all claimants against the King till the final decision of the right, and that no grant shoidd be made to obstruct any person who might traverse the inquest. Hero, then, we find a grant made to Smith in opposition to both these statutes. Not only has the King granted before the time limited after office found by the first statute, but he has granted without the formality of office. The subject has been deprived of this freehold without any notice whatever These two statutes are liighly beneficial, and cannot be too closely adhered to. It is due to the honor and dignity of the Sovereign that his name should not be made use of by interested parties ever ready to grasp at possessions of this kind, and to put forward false representations to accomplish their own views. The very grievances intended to be remedied and redressed by the statutes of Henry, are those under which the subjects of this Province might well say they labored, if we were to hold that they could thus unceremoniously be deprived of their possessions. An inquest of office is the con- stant ban-ier between the Crown and the subject. Our own Provincial statute of 59, Geo. 2, c. G, will be found to have some bearing on this, for by that (which by-the-bye does not seem even to contemplate for a moment that the Crown can LAW REPORTS. 4ft hat of Doc 11' ' Georofe , and cited there fully the court in and a, nd that all b the lands ,'ized into t to farm } returned ; seized into granted to ^•'.s officers, into the in in the ade to the provisions crsons had iding that hat gi-ants possession the final made to lere, then, oth these ne limited d without 'd of this itutes are It is due lie should grasp at mentations tended to are those say they noniously 1 the con- ! found to ■bye does rown can ro-invcst itself of lands without office,) the Legislature have guarded most pta'ticularly against improvident grants. Three ixionths' notice must be given of the escheat in tlie (lazette — a copy of the notice must be fixed on the church an 3 court, however, thought otherwise. The jury had found a special verdict, and had thereby referred the question of fraud to the court, which they might have decided tlu;mselves. The equitable case of the parties who were resisting the bill of sale in the name of the Sheriti*, \ is very st-ong. The assignor ha/ the court, (although the assignor remained in possession of the goods,) so as to defeat the claim of the creditors under a fi-fa issued upon a judgment entered up on the warrant of attorney. It is true that Lor^, in 5 Bing., (pages 432 and 400,) that of Leicester v. Rose, 4 East., decide nothing more than that no legal effect can be given to an agreement by which cei-tain creditors are to have a better security foi- the same sum than the rest of the creditors, after having entered into an agreement with them importing that all we)'e to have the like satisfaction. The scope and object of these decisions were to ensure the strictest good faith and fair dealing between creditors entering into agreements for composi- tions with their debtors. But who is complaining here, and where is the bad faith. If Austin had the right to transfer all his effects to Tarratt, which I think he had, then it will be (piito time enough to discuss the tendency of the verbal agi'eement to LAW REPORTS. 00 'i)« pay some other of Austin's creditors, when those creditors come here or apply to some other court by way of complaint. The moral right of the creditors to share equally the effects of the debtor, has been brought forward also on this point of the argument ; and it is strenuously contended that in all cases cre- ditors have a just right equally to share, or, in other words, that all are equally meritorious. But if we were to be influenced by this (juestion of ethics rather than law, I know^ not whithei- we should be led ; for then if Austin has turned all the chattels in question into money, and paid that over to Tarratt, the latter ought to have refunded, and that was not contended for in the argument. But if Ifeltnn^sclf at liberty (which I do not) to enter into that question, I cannot say that I find anything in this case deviating from the principles of morality in the strict- est sense of the term. ' If then we find no authority for the position, that transferring all a debtor's property to a creditor, and an agreement to exclude particular creditors, if\ fraudulent and void in law, the l>ill of sale assigning Austin's stock stands free from any other objec- tion, because possession as to that did accompany and follow the deed, and so the jury have found ; and it cannot for a moment be said that the fact of possession was not for them, and that there was not ample testimony of possession in Tarratt. The remaining question, therefore, arises upon the bill of sale of the household furniture, the possession of which, it is said, did not accompany and follow the transfer ; and upon this part of the case the bold positio — and that indeed which comes to the real point — has been taken, that, Avith some exceptions, in transferring chattels, immediate possession mnst accompany and follow the deed tiansf erring, — that there nuist be an actual exclusive possession in the assignee ; otherwise, thn' the fact of the assignor remaining in possession, makes the deea void in law. As to this, Twyne's case, and that of Edwards v. Harben, have been relied on. We must not forget, in discussing this matter, that a verdict has passed for the plaintiff, and that the question of fraud, upon the whole circumstances of the case, has been submitted to and negatived by a jury. Now, after a jury have pronounced their deliberate opinion that the transfer was l»ona fide, the court, unless they saw clearly that injustice had been done, would and ought to require a decision directly in point before they would interfere and disturb a verdict founded upon a consideration of facts submitted to them for their determina- tion hi/ the 'h'fer.dant himself, — for I have already noticed that there was no i' motion for a non-suit. Now, both these cases of 5G LAW REPORTS. Twync and Eclwanls v. Harben, were decided upon special cases submitted to the court for their decision, upon a statement of facts agreed on. Twyne's case was decided in the Star Chamber, and the question of fraud was expressly submitted to the court for their decision, as to the fiaud, upon the facts stated ; and they came to the decision, upon the whole matter, that the deed of gift was fraudulent, and so perhaps the jury would have come to the same conclusion in the case under consideration had Austin remained in possession of the furniture and sold part of it, and used it in all respects as his own. It is expressly stated in Twyne's case that the bill of sale was made in secret, and during the pendency of a writ against Pierce at the suit of C. That it was a general deed of all Piei'ce's goods and chattels. That Pierce remained nevertheless in possession — that he sold some of them — that he sheared the sheep and marked thei with his own mark. Here secrecy was expressly negatived, for it is in proof that Austin had on more than one occasion declared his intention to transfer, and he followed up that intention by transferring. Austin's bill of sale enumerated the goods ti-ans- ferred. Austin's transfer was before any writ sued out against him, so that the facts of the case are widely different. This case, therefore is no authority for the general proposition that in transfers of the description under consideration, possession must accompany and follow the deed transferring ; indeed I draw the contrary inference, for had that been the doctrine held by the court, they would probably have so resolved, wdiereas the very first resolution is that the deeds had the signs and marks of fi'aud because it was general without exception of his apparel or anything of necessity. The case of Edwards v. Harben has then been pressed upon us. It is material to observe that that case came before the court upon a special case reserved for its opinion, and it was the duty of the court to give their judg- ment upon it. A very difTerent conclusion was drawn from the facts stated in that case, from that which I should feel inclined to draw. The court in that ca«e admit that if the bill of sale is not absolute but conditional, and the delivery is to take place at a future day and not immediately, it is not fraudulent ; for the vendor's remaining in possession is consistent with the deed. Now, if the doctrine, that possession must accompany and follow the deed transferring chattels, is to subserve the interests of society, by upholding fair dealing and by preventing fraudulent covert transfers, it is difficult in my mind to draw any distinc- tion between absolute and conditional bills of sale. The vendor remaining in possession under an absolute bill of sale is surely LAW REPORTS. 57 not more calculated to deceive the world than when his posses- sion is under a conditional one. If Tarratt had stipulatc.'d that Austin sliould have remained in posse -ision for six months, and then that he should enter, it must he c(mceded under Edwards v. llarhen that the transfer had been good, and yet Tarratt Avould have had these transfers locked up in his desk, Tarratt and Austin being the only persons cognizant (^f the matter ; and yet the )noment the Sheriff came to make the levy the bill of sale would have been brought to light and the Sheriff must have stayed his hands. How this mode of transfer can operate to prevent fraud, I cannot discover. There is no magic in words ; and the good sound sense of the thing requires that if inunedi- ate possession must follow, it must in all cases, for the world will be equally deceived. But are we so fettered by the case of Edwards v. Harben, that we cannot support the verdict in this case ? Eastwood v. Brown, et ah [1 Ryan & Moody, 312,] would of itself be sufficient authority for me to uphold the transfer unless I saw the principles of justice wounded. It seems decis- ive. One Pope assigned a leasehold, house, and all his furniture and household effects to the plaintiff", who was his creditor. Pope, out of the purchase money, paid several of his creditors. There was no direct evidence of fraud, and the full value was given. Pope continued in the occupation of the house and fur- niture after assignment precisely in the same manner as before. Abbott, C. J., left it to the jury whether, under all circumstances, they were satisfied the assignment was made to delay or defeat the creditors in the recovery of their debts. He expressly dis- sented from Edwards v. Harben, and told the jury that the assignor remaining in possession of property assigned was always suspicious ; but if it did not appear from other facts in the case that this took place under a fraudulent arrangement between the parties for the purpose of delaying creditors, it was not of itself a conduslue badge of fraud. There was a verdict for the plaintiff, and no motion for a new trial. Martindale v. Booth, is an express authority on this point of possession. Parker, J., no mean authority, there says that Edwards v. Harben has not been considered in subsequent cases as deciding that the want of delivery of possession makes a deed of sale of chattels abso- lutely void. He says that the want of delivery is only evidence that the transfer was colorable. He refers to Brenton v. ThornliiJl, and he quotes Shepherd's Touchstone that a bargain and sale of goods may be made withoi'V, delivery, and adds : " it is evident this bill of sale in this case without delivery conveyed the property. It may be a question for the jui'y whether, under the circumstances, it be fraudulent." 58 LAW REPORTS. The case of Benton v. Thornliill is also of great weiy^lit, for there tlie bill of sale was not conditional, hut absolute ; it Avas niade also between debtor and creditor, and conveyed idl the jjroperty of the debtor. In moving for a new trial the very ground taken by the Solicitor General was, that possession must accompany a bill of sale of chattels, — the question of fraud being left to the jury ; antl yet the court refused to tuib the ^ further iiills of I .-^ sale to be fraudulent and void ; and 2ndly, that it is for tho court and nut for the jury, to pronounce under this evidence that, they were fraudulent. The ca.se has been most fully discussed, and every argument, that could be raised, and every authority which the learning and industry of the counsel could adduce, have been j)re8ented to our notice, to estal^lish these propositions. I confess they failed at the time in bringing conviction to my mind on these points, and the consideration which I have since been enabled to give them^ has left my former opinion unaltered. It is true that decided cases and dicta of Judges of high authority are to be found, in which the validity of bills of sale or assignments, like the- present, ai'e treated as questions of law alone ; yet, notwithstand- ing these, I am of opinion, both from other and later decision.s. of not less weight, and also from reason and prineiple, that the present case was properly submitted to the jury and that it was their province alone to decide upon the validity of the assign- ment under which the plaintiff claimed. Undcjubtedly the whole case presented a mixed question of law and fact; but a reference to the statute of 13 tlliz., Ch. 5,, will at once shew in what that mixed (question consisted, and how the two parts are and ought to be distinguished. The very statement of this according to its twofold character, keeping that distinction in view, goes very far, it appears to me, in set- tling the pcjint before us. The Judge, then, is to instruct the Jury, if he wishes to follow minutely and strictly the statute, that feigned covinous and frau- dulent assignments are void in law, — that those assignments are so to be considered which have been devised of malice, fraud, covin, or collusion, to delay, hinder or defraud creditors of their just and lawful actions, to the hindrance of the due courso of law and justice, and to the overthrow of true and plain dealing, — that no pretence or color, or feigned consideration, or expres- sing of use, or other such matter, will uphold them, if made with the aforesaid design ; but he will add, that if indeed the assignment be made upon a good consideration, and bonS fi-'}0,] and the con- )so motives ransaction, V(!ry thing i'X])re.ssion fact from conchisivo ^vas to be res gestd'. ess stronL', to other ;ing those usion can o do ; and on before it. Nor ound less al'jections ich these i ; that it Jnt of the ^re thom- led. But tlierefore on — that collusive ; not pro- rs, then, fered on his ? If instance, I'echided destroy- possibly hicli he assign- ' inves- it sees, torially decide, nd that the court itself must pronounce on the main fact with regard to tliem. And what are these circumstances which might liave such effect, but must not. In the first place it is shewn that the prop- erty, though nominally stated at a certain value, was in fact of nmch less. But, says the defendant, the plaintiff having agreed to take it at the sum named, is precluded from shewing this — is precluded from shewing that which is so material to the very point in issue, viz,, whether the assignment was made fairly (jr fraudulently. I do not see how that question could be decided without giving a proper attention to that fact. In the next place, the plaintiff shew;' that his own debt did not foi'm the whole consiileration— that the debt of other creditors, whom he assumed to pay, formed a \)M'i of it. Now, this again seems a very proper and legitimate subject of inquiry for the jury, as constituting a part of that by which the bon^ or maU fide of the transaction was to be determined. That this took place without any communi- cation with those other creditors for whom the benefit wa."* intended, was, with other things, to be regarded in order to ascertain whether it was a mere; color and pretence to cover Austin's property, or so much of it, from other creditors. But there was the positive oath of Austin that this was not the case, and other testimony to support it ; and if that led the jury to a contrary presumption, as it appears to have done, can this comt be called upon to say that the fact was clearly the other way — that the consideration was not good — that the assignment was colorable ? Upon this point tlie language of Tindall, C. J., in Ansell V. Brown, [8 Bing, 91,] may be cited, though indeed it i» e(|ually applicable to every point in the case : " If in any case a doubt arises, as to the real value of the consideration or as to the real motive of the debtor in making the assignment, such question must be decided by the jury, who will determine whe- ther it is a bond fide transaction or a mere collusion to evade the .statute." The fact of the creditors who were to be benefitted by the assignment being ignorant of it, was also to be found in the case of Meux v. Sewell, antl Ingles v. Grant, cited by defen- dant's counsel in the argument ; but this does not appear to have been considered of any importance. — Secondly, we are next called upon to pronounce these assignments fraudulent and void, because possession did not follow them. Mr. Harris has quali- fied this in some measure. He in.sists that the possession should be immediate and exclu.sive, or, if the possession can be dis- pensed with because the ti-an,sfer was notorious, such notoriety nmst be equally immediate. With regard to the notoriety, I confess I cannot well imagine anything more sf i:i '&> '*H^. t}2 LAW ni<:ronTS. ticrtainly shewn t(!> be very iinicorsnl, alt'rough there Wore some thin^^'s, such as the leaving thr shj;u up, whicli, without the Jiotoriety, mi(jht havi; <^ivcii a dirtercnt appearance to the case. The want of pos.se(?sion is much to he rot^farded as an inc to the transactiitn, and if not explained might warrant the strong- est presumption ; still it cannot of itself conclusively show that the assignment was intended wholly as a cover, notwithstanding the vendor was left in possession the transaction might be most honest and bond fide ; as on the other hand, though the property were actually handed over, the possession, as well as the trans- fer itself, mi'dit be colorable. As (^ther facts Would be broufjht forwArd in th(! latter case to show the real nature of the trans- action, so with equal justice it ought to h in the plaintirt"s power to do so in the former. The issue is not whether there was possession but whether the assignment*was bonA fide. Had the statute intended to have made all assifmments void that were not accompanied by possessi(ni, it should have done so in express terms ; and I d. think it looks more like a new enact- ment than a construction of the old to decide that the want of possession Tiecensarily vitiates the instrument ; nor can I under- stand why, where possessson itself is not necessary to perfect the transfer of personal property, the absence of it alone should he deemed conclusive evidence of fraud, the statute itself not having noticed it. But I apprehend the question is now put at rest by the later cases on this point, which have all been referred to in the arguments. [8 B. & Ad., 490, 1 Ry. & M., 312, 1 B. & B., 511, B. ii a, (554, 8 Bing., 00.] They have left at least no doubt on my mind that this is but evidence, and not con- clusive evidence for the jury alone to decide upon. Anything that tends to show the transfer covinous may be adduced in evidence for that purpose, and this may again b^ met by any- thing and everything that disproves it. I come now to another objection of the defendant, which might at first seem to raise a question more proper for the decision of the court than the jury, though this, too, 1 am equally of opinion, belongs to the jury. It is said that the assignment is fraudulent, and we must so presume it, as it is of all Austin's property to some favored creditors to the express exclusion of Hill's estate. The right to prefer one creditor over another can- not be disputed, nor do I understand it to be ; and yet it appears to me that this right necessarily extends to the whole length for which the plaintiti' contends, and includes all that the defendant disputes. Where, indeed, is the limitation at which the debtor must stop in giving that preference, or where is the case to be m LAW tlKPnilTS. 6^ \''i'o Romi', Hioiit tho tlierfcct the should be itself not now put all been ^ M.,312. ft at least not con- Any thing Iduced in by any- it, which ■ for tho n equally :nment is Austin's [iision of iher can- '> appears 'ngth for efendant e debtor se to be foun.l tliat limits him at all. The atithoritics, fts well an reason, support the proposition, that in givinj^ this preference the <;oiied as an o((cnt of Uarvie by |)iaintlfF under tlio abscondiu); debtor's act, Har>'ie writes to him in favor of two other creditors, whose claims ho wished to be paid out of the proceeds :'.ftcr payment of the debts under the a8si)fnmcnt. Anderson, on receiving these letters, did not come under any written eng'ogement to do so, but said " that without incurring any personal liability, he. would, provided he had sufficient funds, pay the amounts as directed in the letters." It was deciited that the i)roceed8 of these effects in the hands of Anderson, (not l)elng sufficient to meet the amount referred to in those letters,) could not be attached in his hands as tlvo goods, credits or effects of Harvie. A writ of attachment and summons was issued against John Harvie as an ahsent and absconding debtor, and John H. Anderson was summoned as his factor, agent or trustee, under the absconding debtor's act of this Province. A copy of the writ was served upon J. H. Anderson on the 1st April, 1834. LAW REPORTS. 65 J. IT. AndoTson appeared in the term of Easter, 1'834, anay- ment of his own debt and liabilities. After delivery of tlie note or order, and before the service of process in this cause upon J. H. Anderson about the 24th March, 1834, the following letter or document written by Harvie, and addressed to J. H. Anderson, was presented and shewn to him : " Sir,— John Leander Starr, Esq., having joined me by way of security and accommodation, and without any benefit or profit to himself, o r ;. -.■ .:,4j 60 Law reports. ID promissory note, for £200, and indorsed for me another noi<3 £120, I do hereby authorize and request you to pay to him the said two amounts, making together £320, with interest thereon, out of any residue tha*/ may remain in your hands or 'inder your control, of the vavious securities, stock, real '^siate, and debts, belonging to me or to the firm of Harvie k, Stamper, held and of right claimed by you, under the assignment and judgment in your favor, or otherwise, after satisfying your own claims and personal liabilities for and against myself and the s'lid firm. And likewise three other claims which you hav<; promised, at my request, in the next place to discharge, so far as th'- aforesaid funds and securities will go, viz. : M. G. Black, Esq.. £100 ; B. Smith, Esq., £100 ; W. Lawson, Esq., £150 ; with a small balance also due to the Tract and Temperance Societies ; it being my wish that Mr. Starr should be protected from loss next after yourself and the parties above named. I am, Sir, your obedient servant, John Harvie. To J. H. Anderson, Halifax." The sums mentioned in this letter or document as due to Mr. Black, Mr. Smith, and the Tract and Temperance Societies, the said J. H. Anderson, at the request and by the direction of J. Harvie, had before assumed and paid ; but the two amounts therein referred to as due to W. Lawson and Mr. Starr, formed no part of liabilities in the assignment, and had never been assumed by J. H. Anderson ; nor had he become in any manner personally liable or responsible therefor before the above letters. The letters or documents in question were left with J. H. Anderson. If the amounts to Mr. Lawson and Mr, Starr were paid, no balance would remain in the hands of J. H. Anderson ; but otherwise, there was a balance of £20 14s. WiLKiNS, J. — I feel no difficulty in saying that Anderson should appropriate the balance in payment of the two orders. He had no funds of the debtors in his hanSs after the orders were drawn. The case of Crawford v. Gurney [9 Bing., 372,] is deci-sive on this point. Hill, J. — The courts of law in England have gone great lengths in supporting transfers of choses in action both upon legal and equitable grounds, even in cases of bankruptcy, which are much stronger than any case that can arise under our statute relative to insolvent debtors ; and wherever a legal or equitable •r.. LAW REPORTS. G7 transfer has been made, the common Irav courts have endeavored, and particularly of late, to give effect to them without compell- inrr the assignee to go into chancery. The case of Crawford and others, assignees of Streather v. Gurney [9 Bing., 372,] is decisive upon this point. The court there held that an e(piitable assign- ment of a debt was good in a court of law, and so clear were they as not to recpiire to hear the counsel who were to have argued in support of the assignment. The language of Bosanrpiet, J., is this: " If Jolly, (the party to whom the order was given,) had any right in law or e(piity against Streather, (the party giv- in"- the order,) upon the order, the assignees cannot recover, I am of^opinion that he had a right in equity to claim a formal assign- ment. The cases of Bailey v. Culverwell [8 B. k, C, 448,] and Carvalho v. Burns, [4 B. & Ad., 382,] recogniice the same doctrine that ertect will be given to equitable transfers. Now, if in the case of bankrupts, where the assignees take under a statute, and hold as trustees for the benefit of all the bankrupt's creditors, the courts thus decide, much more will we decide so in this case, where the plamtiff has no property vested in him by the oper- ation of a statute, and where he comes to take the whole in exclusion of the other creditors. Then the question here is, has an equitable assignment been made of these funds by Harvie to Lawson, and could the latter, according to the language of Bosanquet, J., in Crawford v. Gurney, compel Hai'vie in a court of equity to give him a formal assignment if any more formal one were necessary. There can be no doubt that a court of chancery would so order. The lano-uarje of the case is. that Anderson considered the funds that were to come into his hands, if any did come, as appro- priated to the payment of the order given by Harvie in favor of Lawson. It is true that he says he declines becoming personally liable ; but if the funds were so, that is sufficient, — if they came into his hands, whatever he might have considered, a court of equity certainly, and perhaps ev^en a court of law, would have compelled him to have paile interest remained in the bankrupt, and therefore passed to his assignees. And the decision pro- nounced by Lord Lyndhurst, [1 Ad. & Ell., 803,] in the same case, in tli". Exche([uer Chamber in Error, was on the same grounds. This distinction between the plaintiff and the assignees of the l)ankrupt was i»roperly made at the argument, — the latter take all the effects of the bankrupt in which he was beneficially' interested, but they take it, too, subject to all the beneficial interest of others, though the mode of enforcing these rights belong to a court of equity ; and in this case, therefore, it was not necessary to decide whether che assignees would not take as trustees for the defendant under the alleged assignment. But in this case, under the absconding act, it appears to me, we must decide the question ; for the plaintiff claims, under his process, to bind the property fur his own particular benefit — to respond his own judgment — and to exclude any beneficial rights which others may have acquired. The agent in whose hands the property is placed, submits himself to the decision of the court. It seems to me, with respect to the question, we are exactly in the situation of a court of equity who would be called upon to decide between the assignee of a bankrupt and a creditor under such an assign- ment. The attaching creditor takes the property of tlie debtor in the hands of his agent, he must take it jnst as it is in his hands ; and, therefore, subject to all the liabilities and rights wdiich others had acquired in it, I cannot see how he can acquire rights beyond those of his debtor by this process of law, or divest the rights of others in that property. Wo are therefore bound to inquire into the situation of all the parties as they are disclosed by the agent. This informs us that Lawson had acquired, as I thinj?: J. have already stated, a right to the proceeds in the agent's hands, to the extent of £150, which Harvie him- self could not recall, and which therefore the process of law did net revoke or put an end to ; and, consequently, Anderson cannot hold the proceeds in his hands to respond the plaintiffs judgment until the claim of Lawson is first satisfied out of them. qnitahle nkrupt's epended and till inkrupt, on pro- le same le same ssigneos latter ificially sneficial rights it was take as But in '■e must )cess, to ond his 1 others >erty is icms to tuation etween assign- debtor m his I'ights acquire aw, or ore fore ley are m had •oceeds e him- iw did cannot giuent W: LAW REPORTS. 75 RALSTON vs. BARSS, ET AL. Wlijre a Seamnn who hns Bhiviied for ii whole voyatre Is injured la the service of tho ship, and Is left lit an liitmncdlnfe p jrt, ho in entitled to wnyes for the whole voyiijfe. Where ilip niaster funiishjd such ncanmn at the internitdiate port with gurtical aid and with 111 I'ntoimnco, he eanimt set off the sums expended therein as aifainst tlioae wages. r^ud-rt'.- Whether tho master is lioiind to fimiiah such ussistauco ? Tliis was a special case. The plaintiff was a seaman on hoard of a ship belonging to the defendants, on a voyage from New York to Port Medway, N. S., thence to Livirpool, England. While the ship was at Port Medway, and the plaintitt' was engaged in "loading her, he received an injury by which his leg was l)roken, and he entirely disabled from further duty ; and his health rendering it necessary, he was put on shore, and before he could with safety be removed again on board, the ship failed on her voyage to Liverpool, where she subsequently arrived. The plaintift" was taken care of on shore by the defendants, who fur- nished him with board and surgical attendance, and when able to be removed he was sent by them, with his own consent, to the poor house at Halifax, where he has since continued. Tho plain- iiii' now claims his wages for the whole voyage. The defendants dispute this claim beyond the amount of the expenses incurred in the plaintiff's cure, which are stated to exceed the wages of the whole voyage. Hill, J. — This case, though the sum in dispute is small, involves a question of gi'eat importance and considerable diffi- culty. After the best consideration that I have been enabled to give it, I cannot say the opinion 1 have formed is entirely satis- factory to my own mind. The first point for disposal is, whether the plaintiff, under the circumstances of this case, is entitled to the full amount of his wages from the time of his shipping (15th April, 183.5), until the voyage on which ho shipped terminated, 2nd July, notwithstand- ing he performed no duty on board the ship after the Sth of May ; and I am of opinion that the defendants ought to pay him the full amount of the waffes. Merchant seamen have ahvays been considered as a merito- rious and useful body of men, on whose labor and exertions the prosperity of every mercantile state rests, and all c ntracta touching them have been construed favorably towards thorn* ^i 76 LAW REl'ORTS. The contract Ijctvvcen the master and seaman is a peculiar one, referable to, and to be c(mstnied l)y, the law and custom mari- time. These impose severe duties upon the; sailor, compollinij him even to peril his life for the benefit anre kept and maintained as if he were on board, and attended by a ship boy. If he recover, his wages shall be paid to him to the full due, and if he dies his wages shall be paid to his widow or to his next kin." It is not certainly said here that wages shall be paid up to the termination of the voyage for which the mariner shipped ; but it does appear to nn at the words " shall be paid him to the full " can mean nothin;r else than his wages for the whole voyage. If it was intended that his wages up to his leaving the ship should be paid, then the passage would have so expressed it ; but the expression is general and strong — his wages shall be paid " to the full." Here we see also how careful these laws were to protect and guard the seaman. He was not to be left on shore in a sickly and helpless state, unprotected ; but he was to be maintained and attended on in his sickness. Malynes, who himself w^as a merchant, in his Lex Mercatoria, treating of the duties of masters and merchant ships, and quoting the La-\vs of Oleron, has these words : "And if a mariner falls sick, the master shall cause him to be laid in a house, with sustentation necessary and usual in the ship, but shall not stay in the ship until he be healed ; and when he recovers health shall give him his hire ; or if he die, shall give it to the wife or nearest friends. But if the mariner be not hurt in the ship's service, the master shall hire another in his place. So far back, then, as 1G8G, the opinion was, that if a mariner fell sick, or was hurt in the ser- vice of the ship, which prevented him from doing his duty on board, he was entitled to maintenance on shore, and his wages. The extract of Malynes from the Laws of Oleron does not, it is true, fix the time to which the seamen would be so entitled, but it does shew that he was entitled to wages for some time while LAW REPORTS'. 77 iliar one, 1 111 niari- '1 ijipolling J'u ship, illy per- n, then, -4 ' of his ccoi'dinif ■s. The l('])nve(i of the "iow, in case a iry him opt and lip boy. ue, and is next >aid up lipped; liiu to whole ng the ^^«^ssed hall be > laws left on was to ; , who \ :)f the ' iws of ; ^, the 1 i^ation i ship i 3 him ends. aster , the -4 ser- f: y on i ages. it is i but i* •hile 1 he was maintained on shore, and it does not shew at what period the jiglit to transfer ceased. Tn Cutten v. Powell, [(J T. R., 320,] which was an action for seamen's wages, Grose J., in giv- ing his opinion, says: "The liaws of Oleron are extremely favonil'le to seamen, so much so that if a sailor who is agreed for a voyage be talren ill and put on shore before the voyage is completed, he is nevertheless entitled to his whole wages after deducting what has been laid out for him." Mr. Justice Grose here (piotes the laws of Oleron, with api)rol)ation, as favcjrable to seamen, and I feel disposed to the same favorable consideration and construction of tliese laws. The case of Chandler v. Grieves, [2 H. Black, GOO,] cited in the note to Greener v. Meyer, appears to me an authority directly in point. The vo\age in that case was from London to Honduras — thence to Philadelphia, and thence back to England. At the Bay of Honduras the plaintifi', from a blow leceived on board, was entirely disaWed, and was put ashore at Philadelphia, and the wages were paid him to the time he was put ashore. Loi d Lough- borough, who tried the case, was of opinion at the trial, that as the plaintiff had not performed the whole voyage, though without any default on his part, he was not entitled to wages for the whole. The jury gave wages up to the time the ship left Phila- delphia. Bond, Serjt., on shewing cause against a rule to set aside this verdict and grant a new trial, contended that the plaintiff was entitled to wages for the whole voyage — first, because by the conuuou law no contract for wages was apportionable ; secondly, because, in particular, by the law marine and usage of the sea contracts for seamen's wages, such wages could not be apportioned ; and he quoted, among other authorities, Malynes's Lex M ere, and Meige's Laws of Oleron, observing that these were received by all the nations of Europe. The court said that clearly the law marine ought to be folloM'ed in the construction of the contract, and before coming to any decision, they directed an enquiry to be made in the court of admiralty whether, according to the usage there adopted, a disabled seaman in similar circumstances would be entitled to wages for the whole voyage, or only up to the time when he was so disabled. On a subsequent day the counsel for the defendants stated that he had macle the enquiry, and that in every instance there to be found, a seaman disabled in the course of his duty was holden to be entitled to wages for the whole voyage, though he had not performed the whole. The rule obtained by the defendant to set aside the verdict was then discharged. The court, in this case, adopted, recognized and acted upon the practice of the admiralty, or the law maritime. ft LAW RKPOIIT9. or tlioy must linvo inado tho rule alwolute. Tlic jury lm>v on shore as well as on board sach vessels, receive such hvit ji la ige I 'Hi^K 'A LAW REFORTS. 85 i that it may endanger their lives to send them to the port to •which the ship or vessel do respectively belong : tlierefore, be it further enacted, that in case any seaman or other person employed on board any such ship or vessel, shall, in doing his duty on shore or on board, break an arm or a leg, or be other- wise hurt or maimed, so that immediate care is nec>:^ssary to be taken of him, it shall and may be lawful for the president and governors (of the institution established by the act) at the port c| of London, and the respective trustees for the outports, and they ^ are hereby required to afford proper relief for such seaman or other person so hurt or maimed, until he shall be so well recovered of such hurt as to be removed and sent with safety to the port M to which such vessel belongs ; and the expenses of removing such I seaman or other person to such port, not exceeding 2d a mile, :| shall be paid by the president and directors at the port of London, I or by the trustees of the respective outoorts to which such sea- I man or other person shall be so removed and sent." Now if there was already a legal obligation on the part of the ship or i owner to provide for the care and relief of the seaman, there would have been no necessity for requiring others to do this — i^ much less to make a deduction from the wages of the seaman to defray the expenses of it — if the law imposed that burthen on the ship itself. The act of parliament [6 Will. 4, ch. 19,] " for amendinir and consoHdatino; the laws relating; to merchant sea- men," has provided for such cases as the present. The LSth section of that act is as follows: " \nd whereas it is necessary that due provision should be made for the preservation of the health and lives of the seamen employed in the merchant service, be it further enacted, that every ship sailing from the United Kingdom to any place out of the same, shall have and keep con- stantly on board the same, a sufficient supply of medicines suit- able to accidents and disaases arising on sea voyages, which shall be renewed from time to time an shall be found requisite ; and in case any default shall be made in providing or keeping supplied such medicines, or in case any of the seamen shall receive any hurt or injury in the service of the ship, the expenses of provid- ing the necessary surgical and medical advice, and attendance and medicines, which the seaman shall stand in need of until he shall liave been cured, or shall have been brought back to some part of the United Kingdom, shall be borne and defrayed l)y the master or owner of the ship, or one of them, without any tleduc- tion whatever on that account from the seaman's wages. If this clause makes it obligatory on the owner to provide the jaecessary medicines, &c.. for the seaman, beyond what he has 1 I I ^m m LAW REPORTS. provided in the ship, as directed by this Ci 'ise, and extends to cases where the seaman is not brought back in his own ship, but is left abroad to be cured, it does most undoubtedly establish a very different rule from that cited from MoUoy. By the 44th section it is enactcHl, that when the seaman is left ashore at any place abroad, from sickness, &c., his master is to pay him his wages up to that time. Taking these two clauses together it would seem that a new rule was then established deviating no less from that settled in the case of Chandler v. Greaves than it docs from the ordinance as cited by Molloy. This statute does not extend to the Colonies, — it has been re-enacted in part ; but though the 18th section of the English act is to be found in ours, the 44th section, I know not M'hy, has been excluded. There are, no doubt, many considerations which entitle seamen to a more favorable regard than domestic or menial servants ; yet it may not altogether be inapplicable to this subject, to see how the law stands with respect to the latter. Formerly it was held that they were entitled to that right which is now claimed for the seamen. In Dal ton's Justice, (p. 129,) it is said : " If a servant retained for a year, happen, within the time of his service, to fall sick, or be hurt or lamed, or otherwise to become non potens 171 corpore, by the act of 'od, or in doing Ins master's business, yet it seemeth that the master must not therefore put sucli servant away, nor abate any part of his wages for such ti nil'." And in Seaman v. Castill, [1 Esp , 270,] Lord Kcnyon held that a master was obliged to provide fir ])\h servant in sicknees and in health, and was under a legal as w I) as a moral obligation to provide him with necessary medicines, and to pay for such as were administered to him. The moral obligat]>;n none may feel disposed to doidjt ; but, as Lord Mansfield -aid, in a case prior to tliis, N wly v. Wiltslijre, [1 Esp., 7 jucstion now is, w]jat j» ili- (pw'i and ii w/sis decided by tJie whole C'lHit of King's lieij//!/ Hiat the mas- ter was not liable to tlie overseers of tlio pnfi>h for money expended in tlie cuie of his servant. In Winiiall v. Ackny, [^ B. & P., 247,] the same doctrine was held by the Court of C. Bench, and the opinion of Lord Kenyon — who, it was said, was misled by his humanity -was overruled. The obsi-rvatious of Rooke, J., in this case, nuiy, to some extent, l)e applied to the owners of vessels, at least of coasters and snuill craft, upon whom the law n.ust equally operate. " If," says he, " the general prin- ciple contended for by tlie plaintiff were to be adopted as a rule of law, many persons who are obliged, for the purposes of their trade, to keep a number of servants, would be unable to fulfil ' itii., '' LAW REPORTS. 87 tho duty imposed upon them by the law. It must be loft to the humanity of every master to decide whether he will assist his servant according to his capacity or not." It is, however, but proper to add, that in the decision of this case a reason is given for exempting the master from this liability to provide for his servant, wliich is less applicable to the case of the ship-owner and seaman, namely, that l)y holding the master not liable, the servant is not necessarily left destitute, as it is the duty of the parish to provide relief, and more for the advantage of tho ser- vant that their claim should V)e against these — an advantage ]>y no nieans certain to those who may be unconnected not only with the parish but with the country itself, I have made these observations rather in justification of what I have said respecting my own doubts and the difficulty of finding any sufficient authority to remove them. But I think, and I feel relieved in so thinking, that I am not called upon necessarily to decide this point. With respect to the claim for the wages for the whole voyage, I have already stated my opinion that it must lie allowed. As to the other point, there was at least a strong moral obli- gatio!i on the part of the defendants to provide th'^'^e things which the necessities of the plaintiff required from the injury re«?ivr-d >)y him in their service. That obligation has been compIi.»r'J ■ itii, and those necessaries furnished. There was no contra*-t > ' A-een the parties that the plaintiff -ti^niM pay for them, nor is there anything stated in the case from which "when there was a moral obligation on the part of the defeni:ant to provide them, I can say that the law ■will raise an implied promise on the part of the plaintiff to pay for them. The money, therefore, e.\|' nded W them, as it could not form the jround o^ i if^ir-- against the seanam, cannot be allo-vred as matter against his claim : and in this view of the cisje I am an action of assumpsit for wages, to whicn under the pie -'t-off, the same defence was set up as in this case ; and Gas^ee, J., before whom the cause was tried, thus expresses himself: * I ^b not pr»p»ired to say that a master is bound to provide a meniti servant with luedicine, — witli respect to some other servants he im clearly not so. However, though it is often done by masters for their mt nial servants, I do not think I should be authorized in saying they an- bound so to do. But if a master, when a nieniaJ servant falls ill, calls in his own medical man. I think he cannot afterwards charg*« that against the servant's wages, unless then- he some special contract between the master and ser\ ant that he should do JK>." 88 LAW REPORTS. On tliis ground, then, I consider the defendants cannot make the deduction from the p]aintif{''s wages, and that lie is entitled to judgment for the whole amount which he claims. BILLINGS vs. RUST. Hilary Term, 183S. Where action founiled upon notes made by defendant and another, to which JefontUnt pleaded Btivtiite of limitation, and plaintiff proved that defendant, when applied to fi)ri)a.vnient, said, " if he must pay the notes he would, if he had time ^iven hira," held not sufficient acknow- ledgment to take case out of statute. This was an action upon four joint and several promissory notes made by defendant and one Benjamin Harding, dated 17th June, 1820, for £12 10s., payable at 3, 12, 15 and 18 months res- pectively, after date. Plea, statute of limitations. Issue thereon. There was a rule to set aside the verdict and enter a nonsuit. Coffin, one of the witnesses, whose testimony was relied on to take the case out of the statute, stated, that in 1830, thi-ee years before action brought, defendant, on application to him for pry- ment, said, " it was very hard that he should be called upon to pay these notes — that Israel Harding," (whose name was on these joint and several notes), " ought to pay them ; but if he must pay the notes, he would if he had time given him." To this account of Coffin's conversation with defendant, is added a letter addressed to him by defendant, bearing date 2oth March, 1830, in which the defendant declares that he has once paid those notes, and thinks the receipt he holds will clear him in law from paying them over again. He admits, however, that the man to whom the notes are justly due has not received value — states his willingness to take the notes — find security to pay a part of them in a reasonable time — give bond that they shall be prosecuted, and if collected will pay all," " More," defendant adds, " I cannot do ; for were T justly owing them and felt a desire to have them paid, it would be utterly out of my power at present." Halliburton, C. J. — As it respects the letter of Israel Hnrding, (the joint maker of the notes with defendant,) to Mr. Grantham, a^WMMgsjs LAW REPORTS. 80 if it were properly receiverl in evidence, it only admits that these notes were unpaid when he left Yarmouth in 1831, and that he had never paid them since. But it is unnecessary to consider whether this admission of a co-contractor that the notes were still unpaid, would, under these circumstances, take the case out the statute against the defendant, (the other joint maker of the note,) because we have sufficient proof that the defendant himself admitted three years before action brought, tliat the notes were unpaid ; and after such admissicm we must presume they remain unpaid until the contrary is shewn. Without resorting to the letter therefor, the plaintiff possesses all the advantages that such admission of the co-contractor ccndd give to him arising out of the defendant's own admission of the same fact that the notes were unpaid. The principles upon which cases have been ♦ aken out of the statute, and the practice under these principKs, have been very fluctuating. At one time it was held that where six years had elapsed, jiay- ment must be presumed ; and wherever it was admitted that the debt was unpaid, the statute did not apply, and the law would raise an implied promise to pay from such admission. The abstract justice which supported this construction led the courts to adhere to it until they had almost deprived the community of the benefit which this useful statute was well calculated to confer upon it ; indeed so much uncertainty was introduced in consequence of the nice distinctions which the courts were com- pelled to make in applying this principle to the endless variety of circumstances which presented themselves, that it might have been questioned whether the statute was not productive of more evil than good ; for before it passed every man knew that he was bound to pay his simple contract debts, however long they might have remaine^d unpaid ; but wh !»,] it •11 led the ■ the by Lonl Elh'iiboroujjfh in support of this docision ; but how is tlijs- ivconcilal»k' with Richardson v. Feam, whfie an acknowled;^- lueiit to a stranger at a fair was lieUl suHieient to support an averment of a promise to plaintiff. In Bryan v. Horseman, (44 Geo. 3,) [4 East, 509,] defendant said to the Shei itfs officer on boing arrested : " I do not consider myself as owing plaintiff u farthing, it being more than six years since I contracted. 1 have had the wheat I acknowledge, and I have paid some ] 'art of it, and £2(j remains due." Lord ElKn- borough, 'it the trial, said that, accordlixj to the authorities, such an jK'knowledgni'nt must be deemed sufficient to take the case out of the statute, though, if the matter had been rea integra,. it might have admitted of a doubt; Mud in deciding upon the rule to set aside the verdict for plaintiff", his liordship again said, the court had looked into all the authorities, and whatever their opitdon upon the statute might have been, had the question been neiv, after the long train of decisions upon the subject, it was necessary to abide by the construction put upon it ; from which^ I think, it may be inf< ired, that Lord Ellenborough was not quite satisfied with the view which his predecessors had taken of these questions. He however, deemed it right to adhere to the precedents thus established ; for, nine year.-; afterwards, (53 Geo 3,) in [Lcaper v. Tatton, 16 East,, 420, 1816,] an action brought upon a bill of exchange drawn in 1796, and accepted by the defendant, who pleaded the statute, a witness proved that defendant, when applied to for payment shortly l>ofore the action brought, said, " he had been liable, but was not liable then, because the bill was out of date, but acknowledged tliat it was his acceptance ;" and when told that the plaintiji would take the money by instalments, said that " he would not pay it, it was not in his power ;" I ord Ellenborough, at the trial, held the words sufficient to take the case out of the statute, — aiid in deciding upon a rule to set the verdict for plaintiff aside, he said : " As to the sufficiency of the evidence of the promise, it was an acknow- ledgment by the defendant that he had not paid the bill, and that he could not pay it ; and as the limitation of tlie statute is only a presumptive payment, if his own acknowledgment that he has not paid be shown, it does away the statute." But in Rowcroft v. Lomas [4 M. & S., 457, decided in 1816,] plaintiffs demand was founded upon an accountal)le receipt, 29th August, 1803 : " Received of Mr. T. Rowcroft, £80, to account for on demand." A witness proved that, in 1814, he called on defendant for plaintiff", shewed him the receipt, and asked hinx if he knew anything of it. Defendant answered, " Yes, I knaw ^J. IMAGE EVALUATION TEST TARGET (MT-3) /. £/ A<^ .S' ^> t/u ^~«<. 1.0 I.I III (.25 |45 il28 I4£ 6" M [22 2.0 |||M U IIIIII.6 e °m* c"l V' ^^v c^^ \ iV ^ 0» VV ''- >^ een jarring and contradictory ; different Judges have taken different views of it, and its policy ; and, in fact, the same Judges have seen occasion to over-rule their own decisions. On the argument a multitude of cases have been cited on both sides, many, if not most of them, having a tendency to confuse rather than afford light. I shall, however, without examining all the cases — for I think it quite unnecessary — rest my opinion on the case of Tanner v. Smart, [6 B. & C, 603,] decided in 1827. In this, many of the former decisions are investigcvted and examined, and the doctrine in it is most consonant to principle, and ought to govern the present. That was assumpsit on a promissory note, dated 19th January, 1816, — payable 30th November next ; plea, non assiimiiisit infra sex annos. The plaintiff proved that, in 1819, the note was produced to defendant, and payment of it demanded, and that the defendant said, " I cannot pay the debt at present, but 1 will pay it as soon as I can." There was no proof of any ability on the part of defendant to pay. A verdict having been found for the plaintiff, a rule to set aside the verdict and grant a new trial was allowed. In giving the judgment of the court. Lord Tenterden, says : " The question in this case was, whether an acknovvledgment which implied that the debt, for which the action was brought, had not been paid, was an answer 98 LAW REPORTS. to the statute of limitations, — whether this is such an acknow- ledgment as, without proof of any ability on the part of the defendant, takes the case out of the statute. There are, undoubt- edly, authorities that the statute is founded on the presumption of payment, — that whatever repels the presumption of payment is an answer to the statute, — and that any acknowledgment which repels that presumption, is, in legal effect, a promise to pay the deV)t, — and that though suqh an acknowledgment is accompanied with only a conditional promise or even a refusal to pay, the law considers the condition or refusal void, and the acknowledgment of itself an unconditional answer to the statute." His Lordship then adverts to the conflicting authorities and to the statute, and says, " that though all the actions mentioned therein — trespass, detinue, trover and others — are put on the same footing, yet it is only in actions of assumpsit that an acknowledgment has been held an answer." He says, " that Lord Ellenborough, in the case of Hurst v. Parker, gave the true reason why an acknowledgment in trespass was inapplicable, but applicable in assumpsit : because in assumpsit an acknowledgment of the debt is evidence of a fresh promise, and that promise is considered as one of the promises laid in the declaration, and one of the causes of action which the declaration states." His Ijordship concludes : " All these cases proceed upon the principle, that under the ordinary issue on the statute of limitations, an acknowledgment is only evidence of a promise to pay ; and unless it is conformable to, and maintains the promise in, the declaration, though it may show to demonstration that the debt has never been paid and is still subsisting, it has no effect. The question then comes to this : is there any promise in this case which will support the promises in the declaration ? The promises in the declaration are absolute and unconditional to pay when there- unto requested. The promise proved is, ' I'll pay as f oon as I can ;' and there was no evidence of ability to pay, so as to raise that which, in its terms, was a qualified promise, into one that was absolute and unconditional. Upon a general acknowledg- ment, where nothing is said to prevent it, a general promise to pay may and ought to be implied ; but where a party guards his acknowledgment and accompanies it with an express declaration to prevent any such implication, why shall i-ot the rule expreseum facit cessare taciturn apply. The court made the rule for a new trial absolute. I do not find that in any of the cases since decided, this doc- trine has been questioned, certainly not to introduce one more favorable to the plaintiff, for the courts have been leaning more xiii >. LAW REPORTS* 99 find more a;^inst petmitting stale demands of this kind to be set up, and thus, in some measure, annulling the statute. 'J'liis very feeling was the cause of the passing of Lord Tenterden'a ^ct in 1828. Whippey V. Hillary, [5 C. & P., 209,] Edmunds v. Downs, [2 C. & M., 459,] Gould v. Shirley, [2 M. &} P., 581,] and Linsel v. Bonsor, [2 Bing., N. C.,] decided in 1835, are all in «,ccordance with Tanner & Smart. In Linsel v. Bonsor, the lan- guage was, " you know I gave up all my affairs, and therefore I consider I have nothing to do with your claim, nor shall L I wish you would make nve a bankrupt, — this is in your power. I regret your arresting me. You had the same as the rest, why should I pay you in preference to those who have executed the deed. I nad rather go to jail than do so, I shall I'ely on my •own integrity." Tindal, C, J., says : " Is there any acknowledg- ment ? A. distinct dnd unquaiijled acknotcledgment would have had the same effect as a promise, because from such acknowledg- ment the law implies a promise. But why should an acknow- ledgment be construed as a promise when it is accompanied with a contradiction of any promise," Taking, then, the latest and best authorities, and such as seem to have their foundation on principle and not to be decided on the particular hardship of this case or the other, I assume it to be the law, that to take a case like this out of the statute under the ordinary plea, there must be either an express promise to pay or an unconditional and unqualified acknowledgment from which «. promise may or ought to be inferred. Now, first, is there in this case a promise to pay ? The promises here, as in the case of Tanner v. Smart, are laid in the declaration to be absolute and unconditional. I can find no such promise in the examination •of Charles J, Coffin. He says he had a conversation with •defendant in 1830 relative to these notes. That defendant in that and in other conversations, (the time of which is not accur- ately fixed,) dwelt chiefly upon the hardship of having to pay the notes, and stated that he thought he had some docu- tnent which would screen him from paying them. Again he says : " In 1 830 the defendant told him if he must pay the notes he would if time were given him." Coffin then evidently does not bring home to, or fix on defendant, a promise to pay. The letter of the 25th March, 1850, addressed by the defendant to Coffin, commences with a positive declaration that he (the defendant^ had once paid th« notes, and that he thought he was not bound by law to pay them again. It is true he subsequently admits that the holder had not received value, and proposes to take Uie notes under certain conditions, and. conditionally to pay i 100 LAW REPORTS/ a part without stating what part ; yet there is no pj'omise la pay, none that could support those laid in the declaration. A letter, however, from Israel Harding, the joint promissor, addressed to Mr. Grantham, the plaintiffs attorney, dated 1st February, 1837, written not only since the commencement of the suit, but since the first trial in the inferior court, is urged as favorable to plaintiff. But without entering into the question as to what operation the admission of one joint maker of a note who is not sued under the present circumstances would have by way of binding his co-promissor, who is sued, it is quite clear that such admission must bind the maker of it, and render him liable, or it can have no effect against the one making no admis- sion. Now, Harding, in this letter, certainly makes no promise to pay these notes,— on the contrary he says : " I cannot now pay these notes, for I have no property." He then states that previous to his leaving Yarmouth, in 1831, the notes wei-e not paid unless Rust had since paid them'. For anything we see, then, defendant may actually have paid them since 1831 ; and if ne had not, there is no promise in this letter on the part of Harding to pay, and if so, it can have no effect as a promise against the defendant. But 'f there is no promise to pay in this case, is there not a distinct unqualified acknowledgment of the debt, from which a jury might fairly infer a promise to pay. There are certainly some passages in the deposition of Coffin that wouM appear like an unqualified acknowledgment on the part of the defendant,, that these notes were due to the plaintiff; but we must not select isolated parts of the testimony— its general bearing must be taken altogether. If the defendant had admitted in his con- versations with him that these notes were unpaid and were due to the defendant, it might perhaps have been put to the jury to say whether they would not presume, from such an admission, a promise to pay. If there is no unqualified aicknowledgment m this deposition, much less is there one in the defendant's letter of 25th March, of which I have already spoken. I think the rule for a non-suit ought to be hmmI© absolute. LAW REPORTS. 101 GILMORE vs. DEWAR. Emter Tei^, 1838. '^Yvtt action was brousrh^ for breach of pramiio of marriage, held the Roduction of plalntllT and conseiiuont pregnancy, may bo given In evidunue in oKgrnvntion of damages ; held alMu that the statement lOf a partgr to witnew that lie had tiad previuui cunnexicm witii her, waa not adniinsible. This was an action for breach of promise of marriage. There •was a verdict for the plaintiff and £80 danu^ges. A. Stewart, at the trial, proposed to question Kenneth McKenzie, a witness pro- duced at the trial, whether one Oxley had not told him (witness) that he (Oxley) had had connexion with the plaintiff Evidence was received by the Judge to prove the seduction and pregnancy of the plaintiff, by the defendant ; and the Judge, in his charge, told the jury that they might consider that fact in their verdict. There was a rule Nisi to set aside the ver- dict on three grounds : 1st, improper rejection of evidence ; 2ndly, improper adraission of evider recover damages for the voluntary sacrifice of their own virtue, will have an innnoral effect, that applies well to such a case as Paul v. Frazier, where no contract of marriage existed ; and it is w^ell comment(Hl upon by Parsons, C. J. But we must consider how great a difference such a contract makes in the situation of the parties ; — they meet each other wit'i greater confidence — their intercourse is conducted with less reserve ; and a woman may, with the most innocent intentions, admit of endearing familiarities from a man to whom she is betrothed which might sometimes lead to a loss of self-command, and betray them into a breach of chastity which neither contemplated and which both may deeply deplore. Such an occurrence may be attriluited rather to weakness than depravity. Let me not be und«nstood to be an advocate for undue lenity to such transgi'essions. Both will deeply pay the penalty of their misconduct in their loss of mutual respect and their degradation in the eyes of the virtuous meml)ers of tho community to whom their misconduct becomes known. But, as in such cases, the man must be presurLcd to be the instigator to the offence, it cannot afford him any excuse for not fulfilling his engagement — on the contrary, renders the per- formance of his promise still more imperative, and the non-per- formance of it a greater injury, requiring at the hands of a jury a grea+er compensation. As such an unfortunate occurrence as pregnancy taking place after a promise of marriage may, in my opinion, be given in evi- dence in aggi-avation of damages, 80 do I think it might be given in evidence in mitigation of damages if extraordinary circum- fitances should enable a plaintifi" to give such proof. If a man, after having promised to marry a woman he thought possessed of the usual delicacy of her sex, should discover her to be so wanton as to court his embraces, and pregnancy on her part should be the result .of an intercourse which she herself had 104 LAW REPORTS. fi si. ii sought, most persons woald think him prudent in declining to tal:e such a woman for the partner of his bosom ; and although it might not fully justify rescinding the contract, as the proof of intercourse with another man would do, yet, I think, if such an extraordinary case were proved, a jury woidd think a plaintiff entitled to but little damages, I mention this in support of what I deem a just and general rule, that, wherever an action sounding in damages is sustained, everything immediately con- nected with the transaction, which is not of icself a distinct and substantial cause of action or a distinct and substantial matter of justification, can be given in evidence in aggravation or mitiga- tion of damagos under the general issue, unless there is some positive law prohibiting it. I know of no positive law prohibit- ing the proof of this fact. It is in the nature of things an aggravation of the injury attendant upon the breach of the pro- mise of marriage. The evidence, therefore, was rightly received, and the jury were rightly instructed to consider it, unless the third objection must prevail. Now, I cannot see how the right of this plaintiff to receive such damages as a jury think that she has sustained, can be affected by the circumstance of another pei3on having been injured by the same occurrence. If a man by one blow should injure two persons, (which might happen,) would he not be liable to both ? If A. should throw a stone at B., which should pa^s through C.'s caiTiage and break the plate-glass windows of it on its passage to B., would he not be liable to B. for the blow he received from the stone, and to C. for the injury done to his carriage ? If a man beat my servant and deprive me of his ser- vices, may I not sustain an action against him for the loss of service, and the servant for the assault and batteiy ? And if it be the case that any other person than the plaintiff has been injured by the defendant's conduct in thiy transaction, in such v>'ay as to enable such psrson to sustain f n action against him, the court and jury will decide upon that case whenever such action is brought ; but the right of such party cannot and ought not to affect the rights of this plaintiff. Should such action be brought by a father or relative in that form in which a jury may take injured feelings into consideration, there can be no doubt that they will also take into consideration what the defendant may hav>j already suffered in consequence of his misconduct, so that oxemplary damages will not be twice awarded against him. it is not in the power of courts to sift too nicely the motives w^hich actuate juries in the jury room ; it is our duty to see that the action can be sustained, and that nothing but legal testimony LAW REPOfiTS. 105 is produced in support of it, or to aggravate or mitigate the damages. When that is done, it is their province to decide upon the question of the damages ; and t think it will generally be admitted, that in 99 cases out of 100 they decide justly. I think that the rule for a new trial should be discharged. Hill, J. — On the argument for ♦^he rule, it w^as held by the court that the evidence rejected on the trial was properly rejected, and the plaintiffs counsel was relieved from any argu- ment on that part of the case. The defendant's counsel then insisted tliat the verdict for the plaintiff, in 'is case, ought to be set aside, and a new trial granted on t' o grounds. 1st. The improper admission of the testimony as to the pregnancy. 2nd. The misdirection in instructing the jury io consider that fact iu estimating the damages. These are resolvable into one, for if the proof of pregnancy was properly admitted, it would follow that the fact was also prop'irly left to the jury. Thoufi^ii this is, strictly speaking, an action of assumpsit, yet in realivy , it sounds in damages, and is intended to afford a remedy in dt^niages to a party not only whose pecuniary interests have suffered, but whose leelings have boen lacerated and wounded ; and no one can deny that the wounded feelings have been constantly given in evidence in these actions, anil that you are not confined to the bare proof of the contract and of its breach. You may shew for instance, the peculiar circumstances under which the promise was made, as that it took place in the presence of many of the plaintiff's relatives and friends ; as that the plaintiff declared, at the time, his intentions were never to fulfil the promise made — m.erely to wound and delude ; or that a refusal to fulfil a promise, made in good faith, took place under circumstances that must of necessity deeply injure the feelings. It may undoubtedly be shewn, and it is every day's practice to shew, that after the refusal to perform the promise, the plaintiff pined away and languished. You niay, in fact, sh^^w all or any aggravating circumstances attendant on the contract and its breach ; " but you must not," says the defendant's counsel, ' shew pregnancy as one of these circumstances, because it is urged the damages nmst be the neces>sary result of the breach of promise." Now, I say that pregnancy is one of the circumstances of the case, and is so connected with the promise as not reasonably to be separated, and ought to be considered ; unless we are so tied down by some stubborn rule of law as to be confined to the mere proof of the contract and its breach, and to be denied the oppor- 106 LAW REPORTS. tunity of shewing the circumstances connected with them, the damages here are the necessary result of the breach of promise and its concomitants. The promise was proved to h&ve been made not only before but after the pregnancy was discovered, and after the defendant had admitted that he had been its cause. Is not the pregnancy, then, an aggravating circumstance attend- ing this breach of promise ; and do the principles of reason and justice require it to be shut out of our view. Is there, then, any principle of law requiring us to exclude such testi- mony. I find none ; nor has any case been produced to us that could lead us to think that such testimony had ever been rejected. In i -uth these are actions whicn we know — whatever may be the nice technical distinctions of the law — to be, in effect, actions on the case for the recovery of damages to repair, as far as the law can, the wounded feelings of the female, and to punish the author of them. And will any one say, that to gain the affections of an innocent young female under a promise of marriage, to ruin her in a too confiding moment, and then to desert her, ought not to bring punishment on its author ; and does not justice say that ample reparation ought to be made. It is said that no case has been found in which such testimony has been admitted ; but the answer to that is, shew one in which it has been rejected. It has also been argued, that if such testi- mony be admissible, you will permit the plaintiff, indirectly, to recover damages for a cause of action which the law would not permit her to recover directly ; that an action of seduction will not lie at the suit of this plaintiff. " The fact of pregnancy could not," says the defendant's counsel, " have been expanded on this record ; it would have been ill." Nov/, first, I am not quite pre- pared to say that this fact might not have been put on this record properly , for, whatever propriety there may be in refus- ing an action to a female against the seducer where there has been no promise of marriage, I cannot just see such propriety whore there has been. But secondly, does it follow, necessarily, because you could not have alleged the pregnancy in pleading, that fact may not be given in evidence ; or is it an inflexible rule that damages can be recovered for that only which strictly falls in with the cdlegata. Take the action on the case '>rought by the parent, or one standing in loco parentis for seduction jier qiuod servitium amiait. That action, strictly speaking, goes for the loss of service ; and you must, to sustain it, give proof of service. But who ever dreamed of confining the damages to the strict letter of the declaration. The language of Lord Eldon, in Bedford v. McKowl, [3 Esp., m LAW REPORTS. lor 119,] is explicit that you are not confined to the allegata^ Tliat was an action on the case for seducing the daughter of the plaintiff. The plaintiff's counsel were proceeding to examine witnesses as to the general good conduct of the plaintiff's family — what other children she had, and how she was affected by the injury complained of. Shepherd, Serjt., for defendant^ objected to evidence of this nature. He said it was an action for loss of service, and that the evidence should be confined ta shewing how far the plaintiff' was damnified by Ixyss of service^ Lord Eldon — " In point of form, the action only purports to give a recompense for loss of service ; but we cannot shut our eyes, to the fact that this is an action brought by a parent for an injury to her child. In such, a case, I am of opinion that the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon lier as a parent, losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation, and as the parent of other children whose morals may be corrupted by the example."' His Lorship summed up to the jury accordingly, and a verdict passed for £400. Here, then the eminent judge refused to confine the plaintiff strictly to the nature of the case, or to what was expanded on the record. It will not be said that any pleader, in such a case, alleged in his declaration that the defendant got his daughter with child, whereby the morals of his other children were corrupted, and he lost and was deprived of the society of a virtuous daughter. The action professes to recover damages upon no such ground, yet damages are constantly given upon those very grounds. The same doctrine was held in Irwin V. Dearman, [11 East., 23,] wherein £100 was given for five weeks' loss of service of an adopted daughter and servant. Lord Ellenborough suys, " the loss of service is the legal founda- tion of the action ; and though it may be difficult to rec(mcile to principle the giving greater damages en the ground of the .servant being the plaintiff's adopted daughter, yet the practice is become inveterate and cannot now be shaken." To confine the proof, then, strictly to that ;rhich is alleg.*d in the declaration, is not the rule in all actions ; it is not so in case for the seduction of a daughter. Then, why make a rule in the present case. " We shall inflict a wound upon public mojrals," urges the defendant's counsel, " if we suffer the plaintiff thus virtually to recover damages in a case where ;"^he shews lierself to have been guilty of a breach of the laws of morality." The inadequacy of the law to afford proper security to females in such cases, has been a subject of regiet, as remarked by Mr. 108 LAW REPORTS. Christian and others ; a circumstance that ought not to induce us to narrow the grounds of relief and protection. An action for seduction, unaccompanied by a promise of marriage, will not certainly lie at the suit of the female ; the law has so settled it, and perhaps wisely, and I am content to take the law as I find it. Perhaps it is proper to refuse to entertain an action for seduction merely. It might be a want of that strict care we are bound to have over the public morals, if we were to allow a female to come into court, and without setting forth any extenu- ating circumstances, shew she had permitted herself to be seduced, and claim damages agiinst her seducer. But the present action, I presume, stands on different grounds ; and the plaintiff, though not justified, yet shews a case that all must, I think, admit, is extenuated. Surely the unfortunate female who has been betrothed, and has yielded to the improper solicitations of the man under a sacred reliance that he would make her his wife, stands on different grounds from one to whom no such promise has been given, and who had no such expectations. I can see no danger to morality in our letting in the testimony given in this case — no fear that temptation may thereby be held out to incontinence. Eve»y case must be decided on the facts proved in it, and the juiy weigh the testimony, and award damages commensurate with the injury. I find, then, neither case nor principle against the plaintiff, and on that ground I should be content to decide. But we are not left without both case and principle in favor of the admission of the testimony ; Mr. Christian, in his Notes on Black. Com., (3 vol., 143,) has this strong language : " It appears to be a remarkable omission in the Law of England, which, with such scrupulous solicitude, guards the rights of individuals, secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it by punish- ment of death from force and violence, but has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatever, unless she has had a promise of marriage, can a woman obtain any reparation for the injury she has sustained from the seducer of her virtue." Here, then, we have the authority of Mr. Christian, and no mean one surely, that a female who has had the promise of marriage, may obtain, in an action like the present — and in that only, reparation for any injury done by her seducer. But, we are asked, still further to leave the sex unprotected, and to deprive against the them of their only refuge who are to be permitced to do the wiles of base seducers last injury to female LAW REPORTS/ 109 character, and to go unscathed. But further, the case of Paul v, Frazier, [3 Mass., R., 71,] (which, in the absence of any conflict- ing English case, and taken in connexic«i with tho opinion of Mr. Christian, may, I thinkj be fairly considered an authority,) expressly recognizes the propriety of the reception of such testi- mony. The declaration, in that case, set out that the defendant began to court plaintiff under pretence of marriage ; having gained her affections, got hei- with child, and forsook her ; where- by she was greatly injured in her reputation, and hurt in her peace of mind. The plaintiff obtained a verdict in the Common Pleas, which the Court arrested ; and from that decision the plaintiff appealed. The court were of opinion that j adgment of the Common Pleas ought to be affinned ; and the judgment wa» accordingly arrested, because the action was not given by statute, and there was no principle of law to support an action on the case against defendant for seducing plaintiff under a false pre- tence of courtship and intention of marriage. Parsons, C. J., in giving judgment, says : "As the law now stands, damages are recoverable for a breach of promise of marriage ; ar 1 if seduction has been practised under color of that promise, the jury will undoubtedly consider it as an aggravation of the damages. So far the law has provided, and we do not profess to be wiser than the law." For the reasons to which I have adverted, I retain the opinion I originally held, that this testimony was properly received and put to the jury ; and, therefore, that the rule should be discharged. Rule for new trial discharged. KEYS vs. POLLOK, Easter Term, 1SS9. Where fln action n-ns byougftt on a Promissory Note thirteen years old, held that the following' answer to a question respecting the Note : " I hate ha4 considerable accounts with the plaintiff, and, if upon those dealings, there is anything due to him, I am willing to i>ay him," will r ot b9 a sufficient aelinowleilgtWnt to Uk a the case out of the statute. Assumpsit on a Note thirteen years old. Plea, statute of limi- tations, Halliburton, C, J., said— I have looked in vain for a promise to pay this note in the report of the evidence given at the trial. So far from it, the defendant appears cautiously to have guarded against committing himself by any such promise. The witnes» mentions the note to him thirteen years old, be it remembered, 110 LAW REPORTS. and all tlial lie saj^ that can bear the semblance of a promise, is, *' I have hasi is not only not impossible that Keys may be indebted to Pollok, accordint^ to the proof in this case ; but, taking the admission altoj'ether, I think it highly probable that, at all eventn, uho whole amount of the note is not due ; for it is Tiianifest from Logan's testimony, without referring to the admission of Pollok, that there were accounts entered in the books of plaintiff between these parties. Logan says : " I was employed by plaintiff to make up his books and accounts. But we are not at liberty to resort to conjectures or probabilities ; the plaintiff was bound to give us certainty ; his evidence ought to be clear and special ; ambiguous admissions are not now pern;itted to obviate the whole- some effect of the statute. The conflicting' decisions in England gave occasion to the 9 Geo. 4, cap. 14, a wholesome act, which sweeps away the effect of theso loose, verbal, and most unsatis- factory admissions often made upon a sudden, and unguardedly, and without the maker being aware of the true state of the facts ; and compels a written promise to take the case out of the statute, and to bind the promissor. The writing, then, speaks for itself, and is not liable to have that coloring given to it, to which hasty conversations are so subject. Time is given to a party to examine, reflect, and deliberate. If, then, in cases where the debt is actuallv admitted to have been due, and allecced to have been discharged in a particular way, the couits have so stnctly held plaintifi'to negative the mode of payment alleged, and have not called on the defendant to shew anything, how much more necessary is the call on the plaintiff for certainty in this case, where there is no admission of anything being due. If it should be urged that the conversation referred wholly to the note and not to the account, I answer, that assuming it to be so, it v^ould make no difference in my opinion. Had the defendant said, " If there is anything due on the note, I will pay," the case would still be within the statute. Keeping in mind the language of the of the court in Beale v. Nind, it would have been incumbent on the plaintift" to have shewn that no payment had been made. Can we, with certainty, say that Pollok has not made payments on this note which the plaintiff has both omitted to indorse and to give a receipt for ; or if a receipt were given, it has not been lost through accident ; and shall we put the defendant in such a position, that, from this conversation, the whole laboring oar shall be thrown on him. Had the plaintiff exhibitfxl this note to the defendant, and the latter had said, " you know I have made pay- ments upon this note, for which I have had no credit, but if anything is due I will pay," could we let the plaintiff recover on such an admission as this^. the face of the note ; if he could not sill' LAW REPORTS. 115 »hew the payiiienta alloged by hhn in the admission, upon which alone he rests for placing hin case hoyond the statute, must they (_■•) for nought ? Hut has not the defendant, in substance, set up payments ; has ho not referred to his con- siderable accounts against the plaintitt* Lech man et al. v. Fletcher, [1 Cr. & M., (523,] is in support of what I have endea- vored to shew. The defeneing aware of tke fraudulent conduct of his servant. This was an action brought by plaintiff against defendant, a merchant in Boston, to recover from him the price of a quantity of copper sold and delivered m Halifax, to one Lane, wno com- mandf d a vessel called the " Acadian," belonging to defendant, and engaged in trade between this port and Boston. It appeared in evidence, that Lane was in the habit of pur- chasing copper to realize freight ; and that in June, 1838, plaintiff's managing clerk met Lane in the street, and asked him if he wanted a lot of copper. Lane said he would purchase it, if the price would admit of its paying freight. Plaintiff's clerk named lOd. Lane said that would not do for the owners. On the afternoon of the same day the clerk again met Lane, and 118 LAW REPORTS, (f IH offered it for 9d. ; which Lane agreed to. The copper was sold for casli. The bill of parcels was made out on the l4th of June. There wac some uncertainty respecting the time of delivery of the copper. The witness at first said that the copper was delivered on the following day. Lane's certificate at the Consulate office, however, was dated the 14th. On the same day, the I4 LAW REPORTS. 119 S0l(i th of le of ^pper the day, ];ents ppper and •■or for which we expected to get immediately paid." Nor w^as tliere any proof of any general agency established in Lane ; although it did appear that Lane received passage money for the defendant here, atid was in the habit of purchasing cordwood and other small articles for him with cash. In supporting the plaintiff's claim, the Solicitor General, his counsel, did not contend for ctny general authority on the part of Lane to make purchases on the cred't of d'ifendant. There was not a shadow of proof to support such a ciaim ; but he eon- tended: 1st, that where there is no such general authority, if a party is sent to make purchases for another, and after the pur- chase is made, and the goods received, he who sent him gives the money to him he sent to pay the party from whom he received the goods, and if he does not pay him, the loss falls upon the purchaser who employed the party, and not upon the vendor of the goods. And he contends, that as Lane received the money from Starrs, (defendant's agents,) to pay Almon for the copper, which had been then delivered, and Lane did not pay it, that the loss must fall upon defendant, and not upon Almon. Halliburton, C. J. — I think there are two objections to plaintiff's succeeding upon this ground. First, — iJcfither the defendant nor the Starrs sent Lane to make any purchase for them. The transaction commenced on the pai-t of the plaintiff, who^:e clerk met Lane accidentally in the street, and offered the copper to him for sale. This is not an unimportant distinction. If I want an article and send my servant for it without the money, and he brings it to me, it is unquestionably my duty, after receiving it, to see that it is paid for ; and if I then give the money to the servant to pay for it, and he misuser it, 1 must bear the loss ; it is my confidence he has abused. But if, withou*'. sending him on any such errand, he is accosted on the street with the offer of any article I am known to use, and on his communicating this to me 1 give him the money to pay for it, and the article is delivered to him without insisting on payment, whether that delivery was made before or after I had given him the money, provided such delivery was n^ade unpaid for without my knowledge, I am not bound to sustain the loss ; the confidence was reposed in the servant by him who delivered the goods, as I had not sent him abroad to procure goods on tny credit. Now, all that the Starrs (defendant's general agents) 120 LAW REPORTS. did, was to give money to Lane to purchase copper for cash. Starr expressly negatives Lane's having any authority to make purchases of any kind on defendant's credit. The plaintiff's own witness proves that no credit, (in the mercantile sense «of the word,) was given to any body in this transaction. It was a sale for cash ; but, unfortunately, the plaintiff reposed confidence in Lane that he would bring the money for it, according to the agreement made with him ; and the article was delivered to him without exacting the payment from him at the time. Now, it was the plaintiff who reposed that confidence in Lane ; and if Lane abused it, he must take the consequences as far as this part of the case goes. Secondly. — It is by no means clear that the copper was delivered before Starr gave Lane the money to pay for it. The date of the Consul's certificate of the shipment on the 14th, is not conclusive; but admitting it to have been deli- vered on the 14th, the check for the money was given to Lane on the same day before the bank closed ; and there is no proof as to the priority of the two facts which it was incumbent on the plaintiff to establish, to support his claim upon this ground. It is next contended, that the defendant, by receiving the copper, has recognized the authority of Lane to make the pur- chase on his account ; and that such recognition is equally bind- ing upon him, as if he had originally authorized Lane to make the purchase. In McLean v. Dunn [^ Bing., 722,] Best, C. J., says : " In my opinion, the subsequent sanction of a contract signed by an agent, takes it out of the operation of the statute more satisfac- torily than an authority given beforehand. When the authority is given beforehand, the party must trust to his agent, if it be given subsequently to the coptract, the party knows that all has been done according to his wishes." This reasoning is as sound as it is just ; but, is it applicable to this case. Under what cir- circumstances did defendant receive the copper ? Lane, the captain of his vessel, not authorized to make pur- chases on credit for him, but occasionally buying articles for him with cash, purchases this copper from Almon for defendant, and agrees to pay cash for it. He receives the money to pay for it from defendant's general agents here — ships it on defendant's account — sails (without paying for it) on the I'jtli of June, and delivers it to defendant on the 20th of that month at Boston. There is no proof of Lane's communicating his own roguery to him, nor does it appear that he was then made acquainted with it through any other channel. He, of course, then received it asi his own property, which had been bought and paid for with his ■|f LAW REPORTS. 121 own funds. Nor can the mere reception of the copper, under these circumstances, amount to a recognition of Lane's authority to purchase the copper on his (defendant's) credit, when, in fact, as I have before observed, it was not sold on the credit of any person, although it was unfortunately delivered under a mis- placed confidence in Lane. In the case of Horsefall v. Fauncleroy, [10 B. & C, 755,] the plaintiff had advertised the sale of ivory at Liverpool, payment to be made on delivery of bills of parcel by good bills in London to the satisfaction of the sellers, not exceeding three months' date to be made equal to cash in four months from date of terms. Lloyd and Williams, brokers at Liverpool, who were frequently employed by defendants to purchase ivory for them, sent one of these catalogues, with the conditions, io defendants, who directed them to buy certain lots for defendants, which they did. At the sale, the auctioneer made the following verbal alterations as to payment : " Payment by known buyers, the usual credit of two and two months ; by strangers, as in condition annexed to catalogues," The ivory was delivered to Lloyd & Williams on their own account, and charged to them. They transmitted it to defendants, as bought of plaintiffs, payment equal to four months cash, and then drew upon the defendants a bill for the amount at four months' date, adding brokerage and commission, which bill the defendants accepted and paid. L. & W. stopped payment within two months after the sale ; and the plaintiffs discovering that the ivory was purchased for and received by defendants, brought this action against them for the amount. They were non-suited by Parker, J., at the trial, and on arguing a new rule Nisi to set aside the non-suit. Lord Tenterden said that " the plaintiffs, by circulating a catalogue with certain con- ditions of sale, naturally led the defendants to suppose that Lloyd &L Willian could not have received the ivory without giv- ing good bills on London for it, and that therefore they might properly accept the bill drawn by Lloyd & Williams for the amount; and if we held that the acceptance "nd payment of that bill did not exonerate the defendants, it would be ".n exceedingly hard case." The mere reception of the goods, therefore, does not amount to a recognition unless they are received uiider circumstances which authorize an inference that the party receiving them wants to recognize the power of another to make purchases on his credit. Now, here a party who had never authorized Lane to purchase goods for him on credit, but was accustomed to receive goods from hira out of this vessel bought for him with 122 LAW REPORTS. 'i cash, receives this copper from hira out of that vessel in the usual manner. Can that amount to a recognition of a purchase made on his credit ? where, I repeat it, that purchase was not made on the credit of any one, uut was really a swindling trans- action committed by Lane upon Almon. But this case is subsequently put in a new light. Under whatever impression the defendant may have received the cop- per, we are tuld that before he had sanctioned the advance which Starr had ma)efore the " Acadian " left the port. Captain Lane was to pay it." The terms of the sale then were casn, and so it was at the time understood by both parties.' It appears, too, that Lane shewed where he was to get the money —from Starr. This was indeed stated after the sale and delivery; but if nothing of the kind had been said before, couM the plaintiff have doubted that, as the defendant lived in Boston and the money was to be paid by Lane himself before the vessel sailed, that Lane either had the money in his own hands or within his reach ? It was upon this understanding that the bar- gain was made. The sale, by the very terms of it, had no reference to any credit, and could not therefore have been made on the credit of the defendant. The plaintiff looked to a better mark than either Lane or defendant, or any other person — the money itself. He sold for ca..'i ; and if he was so improvident as to part with the goods before he secured the price, it was not and could not have been on the credit of the defendant, which Lane had never professed to pledge, and which the plaintiff had not a pretence to suppose was pledged. But it could only have been on the reliance which he placed in Lane's promises of pay- ment — that is, the credit, if any was given, was to Lane alone. Such, then, being the nature of the transaction, what is there to raise any liability on the part of the defendant ? for his accept- ance and using the copper afterwards can no othenvise create liability, than as being evidence that Lane had atithority to make the purchase for him, and to pledge his credit. But if Lane did not, in fact, pledge his credit, but purchased for cash, the subsequent acceptance of the copper cannot vary the previous transaction, or change a cash sale into one upon credit ; it can, at most, but recognize Lane as his agent to purchase in the manner and on the terms on w^hich he did purchase. The plaintiff, then, by his own shewing, has no right to resort now to the defendant ; and, I think, he ought to be non-suited. On the defence, it appeared that Messrs. Starr, who were the general agents of defendant, had actually advanced on his behalf, money to Lane to pay for the copper. It was contended, at the argu- ment, that the money was not in fact paid over to Lane for this purpose, until after the purchase had been made ; and the case was likened to that so often referred to, of a master giving his 9 130 LAW REPORTS. servant money to pay for j^oods previouHly bou^'lit, in which case the master's lial>ility still remains, f am by no means so clear that the facts stanil as the plaintiff puts them. The barjjfaiii, whatever was the rimn fticie evidence t)ia' thf defi'iulant hud authorized its pur- •chase oti credit, is under these additi(»iml facts, proof of no such thing? Under the plaintitt^s own casoi, it was clear enough ; hut it is now made still stronger. Every presumption is against the plaintitt"; the implied authority from defendant to Lane to pledge his prearty is to Hufier from Lane's uiisconduct, surely the loss skould fall on hini Avho might, but di 1 not, prevent it. MURI80N vs. MITRISON, Hilurij Term, 184.0. ^here t^e affidavit tincler «Ii(ch th« writ isiiuero- ceeded on the 31st October towards Bedeque, to complete her cargo there ; but night coming on, and the wind being foul, they anchored her in Orwell Bay. On the morning of the 2nd November, they were compelled, after several inettectual attempts to raise the anchor, to cut thti chain cable. They set sail for Bedeque without the anchor, and ariived there on the 4th, where her loading was completed. They saihid thence on the afternoon of the 10th, determining to replace the anchor they had lost at Charlottetown, On the morning of the 11th she struck on Indian Rocks. After every exertion had been made by the crew, assisted by persons fi-om the shone, during that and several succeeding days, to get her off the rocks, she was finally abandoned by the master and crew on the 15th, being then, a3 supposed, in a hopeless condition. The crew did not leave till^ from her exposed situation and the state of the weather, it was deemed dangerous to remain lonf;er on board. She thus remained for several days, the waves breaking over her so, that no man could have lived on board. She was in this situation when a very heavy gale of wind lifted her off the rocks, and she was seen on the morning of the 21st November, floating a short distance from where she had struck. A steamer, from Pictou> which had been employed by the underwriters to go and look after the vessel, found her in this situation on the 23rd Novem- ber, and towed her into the harbor of Pictou. Notice of aban- donment was giv 1 to the underwriters on the 19th November. The underwriters, on the 20th, determined to accept it. On the 25th they notified plaintiff that vessel had been brought into Pictou, and of their readiness to pa}*^ all expenses for her repaid The plamtiffs, on the 26th, declined to resume charge of the vessel and relied on the abandonment. On the 27th the under- writers notified plaintiff that they would proceed to repair vessel, I LAW REPORTS. 143 fer, in iplete 2y. by fnvint? P^' the pro- :e her [, they 2nd actual 'y set n the ce on • '^l^ey and wnidd serve hlni witli such further notice as might he ncces- Hary. On the I7th Decend)er the underwriters again state that they had not accepted, and did not intend to accept this aban- donment, and that the steps they had taken for recovering and preserving tlie property, couhl not he considered, according to tlieir policy, as on acceptance thereof. At the expiration of tho GO days limited ])y the policy, the plaintiffs dismanded payment The defendants informed them that they would resist their claim, on the ground that the vessel was unseaworthy ;,and that, at all events, they were not liable for a total loss. A rule was applied for to set aside verdict, which was opposed in the first instance. Halliburton, C. J., said : — Four (piestions arose at the trial of this cause : 1st — Was the vessel seaworthy ? 2nd — Did she deviate from the voyage ? 3rd — Is it a partial loss only ? Or, 4th — Are the underwriters liable for a total loss ? The jury liave found that the vessel was seo worthy— that she did not deviate— and that it was a total loss. They have, there- fore, given their verdict for the wh(;le sum insured upon tho vessel, freight and cargo — £1950. Upon the argument, little objection was made to the finding of the jury on the question of seaworthiness ; and I am clearly of opinion that the evidence fully warranted the verdict upon that point. But it was urged that the plaintift had been guilty of great negligence in not procuring an anchor at Bede(pie — that the vessel had deviated in sailing from thence to Chai lottetown to procure one — and that the vsrdict should be set aside upon those grounds. I cannot, however, concur in this view of that part of the case. It is admitted, or at all events, cannot be denied — that, as respects the equipment with anchors, she was Beaworthy when the risk commenced. She lost an anchor by one of the casualities insured against, after she had commenced her voyage, and arrived at BedeqUe (where she was permitted by the policy to touch to complete her cargo) deficient in one anchor. From the description given of that place, the owner or master might very reasonably conclude that there was no pioba- bility of procuring an anchor of the weight required, at Bedeque; and in the exercise of a sound discretion, whether it would not be better to supply this esseiitial want at Bedeque, by remaining at Bedeque at the risk of being frozen in for the winter, until he could get one round from Charlottetown by Water, or call there in the vessel for one, I think he was well m i,:t ." 144 LAW IIEPOIITS. warranted in deciding', as he dires- but But it necessarily recognizes the principle which I have already so much dwelt upon, that if, under these circumstances, just as well as in case of capture, a loss total at the time is made partial by after events, the assured cannot recover for a total loss. The mere restoration of the thing insui-ed in specie will not reduce it to a partial loss, as Bailey, J., states, and as had been before decided in Mclver v. Henderson, [4 M. & S., 570,] and Cologan v. London Insurance Company, [5 M. tfc S., 447,] for if the restora- tion leave it still a total loss, the contract of indemnity which the insurance is, entitles him still to I'ccover for a total loss ; and therefore when it is said by Bailey, J., in this case, " that if at one period of time, there was a total loss and an abandonment, before news of the vessel's safety had been received, her sub- sequent return did not entitle the underwriters to say it was no longer a total loss ; he meant to say that her return under the circumstances of the case — that is, in that valueless condition — did not so entitle them." To suppose him to lay that position down as a general one, and not with reference to the particular fact of the case, would make him not only opposed to the whole current of authorities and to his own clearly expressed opinion in many of them, but it would be inconsistent with the whole of his then argument ; for he goes on to shew that a mere restora- tion, which is not a beneficial one to the owner, will not reduce it to a partial loss. " The ship," he says, " must be in esse in this kingdom under such circumstances that the asssured may, if they please, have possession, and tnay reasonably he expected to talce it" Lord Tenterden, in Parry, v. Aberdeen, [9 B. & C, 41 G,] referring to the case of Holdsworth v. Wise, says : " the court held the loss total on the desertion of the crew, and not turned into a partial loss by the subsequent events, the effect of ivhich will he of no real henefit to the assured." And the judgment of his lordship in the case then under his consideration, proceeded on the same grounds, that though the goods which were the subject of the insurance remained in specie after the desertion of the ship, the subsequent events produced no beneficial restora- tion of them to the owner, and therefore did not reduce the loss to a partial one ; from which the converse of the proposition is to be collected, that if by the subsequent events a beneficial restoration had taken place, the loss then would have been no longer total. Naylor v. Taylor [9 B. & C, 718,] may be referred to as one of the latest cases upon the general principle which we have been discussing, that the ultimate state of facts must decide whether the loss is a total or partial ; in which Lord Tenterden, alluding to the doubts of Lord Eldon, says : 15-t LAW REPORTS. 'f ^^ " that notwithstanding that we consider the point to liavc heon W'cll settled, and the rule established, by tlie authorities wluch he mentions, and which have been ah-eady cited." I will only refer to the eiises of Dcyle v. Dalton, [1 M. & Ry., 4*S,] and Gardner v, Salvador, [1 M. & Ry., IIG,] which were among those cited, that i may say there is, in my opinion, at least, nothing in them that weakens or is opposed to this position ; and it is unnecessary to extend my remarks by examining how far they may strengthen it. In the course of the argument mucli refer- ence was made to the law on this subject as it exists in the United States ; and independently of the character of their jurists, which is deserving of great consideration, we may with great propriety, and perhaps with advantage too, inquii-e how such a case would probably be viewed in a great commercial country, where the law of maritime insurance is so continually, and under such varied circumstances, discussed and decided. Now, though it does not appear to bo there held, [3 Kent's Com., 270,] that where there has been a total loss at the time, and an abandonment thereupon, subsequent events will change the nature of that loss, and adeem the plaintiflTs right to recover for a total loss ; yet, they appear in a case like the present, to arrive at a similar conclusion to that which the decisions of the Eng- lish courts would lead us, though by a different way ; for they look to the subsequent events and to the ultimate state of the case to see whether the loss, whicli appeared to be total at the time when notice of abandonment was given, was then acturJly a total loss ; and on referring to several cases of theirs on this subject, it appears that they, too, would hold that in this case the plaintiff was not entitled to recover as for a total loss. I will refer to a few of these. In the case of Wood v. The Lincoln and the Kennebec Insurance Company, [G Mass., R. 479,] tlie ship was driven on the rocks, where she was overset, so that at high water her hull was nearly covered. An offer to abandon was then made, which was not accepted. The vessel being after- wards disengaged from the rocks, wholly sunk. The defendants caused her to be weighed and brought to a wharf in her port of discharge fifteen days after the misfortune, and having consider- ably repaired her offered her to the plaintiff, who refused to receive her. It did not appear that the vessel was wholly repaired by the defendants, nor what degree of injury was sus- tained by the stranding. It was, however, presumed, that it was not such as rendered her not worth repairing, and it was held that then it was a partial and not a total loss. Parson, C. J., remarks : "If the plaintiff, when he made the offer to abandon, had L*^ * LAW REPORTS. 15; Ive been wliich ['ill only ^^,] and ig those tiling in h«l it is •dv they \h refer- in the |)f their |iy with 10 how iiiiorcial inually, :Iocided. Kent's mc, and ngQ the 3ver for arrive le Eng- or they 3 of the at tlie ictufJly on this lis case loss. I Lincoln he ship at high )n was : after- ndants port of nsider- i3ed to wholly IS sus- it was s held , 0. J., n, had a legal right to abandon, the verdict must stand, notwithstanding the subsequent recovery and arrival of the vessel ; the right to abandon is a vested right, and when legally exercised, the assured is entitled to recover as for a total loss, which subse({uent events cannot prevent unless with his consent." But he afterwards remarks, that " where a ship is sti'anded, the assured cannot for that cause merely abandon immediately, for, by some fortunate accident — by the exertion of the crew, or by extraneous Assist- ance, the ship may be again floated and rendered capable of pursuing her voyage ;" so that, in truth, it is after events tliat must decide whether the abandonment were properly made. Jn Poole v. Suffolk Insurance Company, [7 Pick., 254,] this is expressly stated. The ship in question was driven on the rocks, and received great damage. While she lay there, an offer to abandon was made. The defendants caused her to be taken from the rocks, and having made certain repairs upon her offered to restore her to the plaintiff", who declined to accept her. Parker, C. J., in giving judgment, says : "That the ship at the time of the offer to abandon was in a state of peril to justify that offer, cannot be doubted. She was upon the rocks, and "whether she could be got off' or not was altogether uncertain. Sithsequent events must determine whether the loss was then total or not. The mere stranding, however perilous, is not of itself a total loss, for the vessel may be relieved and the damage may be small." In Sewell v. U. S. Insuranc Company, [11 Pick., 90,] the ship struck a rock on 22nd April, and beat heavily on li; for forty- eight hours, when the wind forced her on a shoal, and she sunk in seven fathoms water, eight miles from shore, and remained under water six weeks. She was abandoned to the under- writers 30th April, who raised and repaired her, and tendered her to the plaintiffs, offering to defray the expenses, which offer was refused. After verdict for total loss, a new trial was ordered, on the ground that these facts did not constitute a total loss. In Hall v. Franklin Insurance Company, [9 Pick., 4G6,] Putnam, J., says : " The real state of facts at the time of aban- donment is to govern, but that is to be ascertained from sub- sequent examination. The information may show such damage as would render it expedient to abandon ; but if it should prove incorrect and over-stated, the abandonment would not avail. The facts in all of these cases are extremely like the present, and the law thus laid down with regard to them in these courts, woidd be applicable most clearly to this. The French law appears to have adopted a principle similar at least in its effects, and leading to the same results. It does not, in 13G LAW REPORTS. such a case, sanction the riglit to abandon. In the Code de Com- Tnerce, [Tit. 10, sec. 389,] it is thus expressed : " Le delaimement a litre d'innavlgahillt^ ne peut etrefait si le navire /chou/ peat etre rclev/, repar^ et mis en etat de contiiiuer sa route pour le Ilea de sa destination. Dans ce cas Vassur^ conserve son recoiira sur les assureara pour le frals occasion^ ixir I'echoitement." As it can only be ascertained by future events whether the ship which is stranded is capable of being repaired, the recovery as for a total or partial loss in every case of strand- ing must wholly depend upon subsequent circumstances ; and thus the law of this great commercial nation appears in this respect to agree also with our own in arriving at the same result. It was insisted upon at the argument, that the Ju ige, in his charge, had left the question open to the jury; and that they had found it a total loss. The opinion of my learned brother was, evidently, that if the abandonment at the time was justi- fied by the state in which the vessel was, th'^ right to recover for a total loss remained unaffet' d by subsequent events. Can it be said that the question was left open to them when the Judge told them expressly, " that nothing that took place subsequent to the abandonment could vary the case." With great deference, I think that the very converse of this should have been laid down. But another point of some moment has been also raised by the plaintiff, — that there has been, in effect, an acceptance of the offer to abandon. That an express refusal to accept was given, when the offer was made, and the same as plainly repeated at subsequent periods, is distinctly shewn. We are therefore to enquire how far, notwithstanding the language of the insurei's to the contraiy, their acts can be considered as amounting to an acceptance of the abandonment. Now, it appears to me, that there is no such inconsistency between what the defendants said and what they did, as to raise any question with respect to what they intended. The doubt, if there be any, as to whether they did or did not accept the abandonment, is not one therefore purely of fact which the jury have to decide ; but ia one depend- ing on this : whether the insurers could do what they did without thereby fixing themselves with an acceptance of the abandonment. Upon this subject we can derive very little assistance from our own authorities, whether of text books or decisions of the court, which are singularly deficient on this point. We must, therefore, chiefly consider it on principle and sound reason, as far as we are capable of bringing them to bear upm it. The rescue of the vessel, by bringing her into Pictou, v.r*"- LAW REPORTS. 157 de Com- imement ite 2)our conserve m^ par events epairod, stranJ- les ; and in this result. in his at they brother Eis justi- recover Can it Judg-o sequent fcrenee, sen laid ised by 3 of the • given, a tec I at fore to n.surei-s g to an e, that its' said what ir they srefore epend- sy did of the little )ks or n this e and ) bear *ictou, was effected l)y the underwriters. Had they a rir the first time, entered on the land, and claimed it as his own. Upon this entry he brought trespass against the defendants, then in possession under the grantor, for cutting wood thereon. There was a ver- dict for defendant. 160 LAW REPORTS. f 1 ; i ; r : f :( " ! A rule was obtained for a new trial, on these grounds : 1st-- That the delivery of the deed from grantor was a valid, com- plete, and good delivery, as a deed. 2ndly — That if so, it trans- ferred ijjso facto to the plaintift possesslcu^ of the land described therein, and consequently enabled him to maintain trespass. Srdly — That no agreement could operate as a license to enter unless pleaded. Hill, J. —As to the first point, I think there has been suffi- cient evidence to sh jW that the deed was delivered ; and upon the third point, I think it clear, that under the general issue the defendants could not shelter themselves under any licenj,3, for that must be specially pleaded. The difficulty, if any, arises on the second point — the fact of possession. Now, the principle upon this is clear. To maintain trespass, the plaintili' must not only have the freehold in law, but an exclusive possession in himself. For trespass quare clausum frenit is an action to recover damages for an injury done to the possession only. The freehold in law may be in one, and the lawful possession in another. The plaintiff, therefore, must undoubtedly show a possession in himself, and an exclusive one, or he has no right to maintain this action. It has been urged that the deed being delivered, carries with it the possession, so as to enable the plaintiff to maintain trespass ; but this posi- tion must not be taken so broadly, because a deed frequently transfers the freehold without the actual possession, and without conferring upon the grantee the right to bring trespass against a party in possession. This is so in the case of there being a sub- sisting lease at the time of the deed given to the grantee, and many other cases. In the case of a mere trespasser and wrong- doer, the delivery of the deed may caiTy with it the possession, so as to enable the tenant in fee to bring trespass. That is a reasonable doctrine for it not to lie in the mouth of any person, without a shadow of claim, to commit a trespass, and then to fly to some nice technical rule to cover him from his responsibility to the undoubted and undisputed owner of the soil. But I find no case like the present where trespass has been maintained by the grantee against the grantor who remains in possession. This is not like the case of Butcher v. Butcher, [7 B. & C, 399,] cited for plaintift' at the argument. In that case the defendant had no claim whatever to the premises, nor ever had any ; he was a mere wrong-doer. In January, 1827, the plaintift was entitled in law to the premises, not claiming through the defendant ; on the 10th March, 1827, he entered with bis servants, and began LAW REPORTS. 161 1st— corn- trans- cribed ispass. enter .suffi. upon le the for to plough. — the defendant then having entered, and being in possession. Now, I appreliund tliat if Butcher the plaintitf had derived his title through Butcher the defendant, who had never given up the possession, the decision -vrould have been different. It may be remarked, too, tliat in Butcher v. Butcher, the tres- pass was committed subsequent to the entry on the 10th March : in the present case trespass was committed eitlier before the actual possession, or was in progress of committal at the very time, It may have been perfectly understood l)etween plaintiff and the old man, that possession was not to follow the delivery of the deed. Circumstanced as the pai'ties were, I think the supposition far from unnatural. Upon the ground, therefore, that plaintiff has not sliewn him- self in the actual possession of the locus, but that he has shewn that to have been continually in the grantor, I think that the verdict was right, and that the rule ought to be discharged. MILLER vs. LANTY, Ead not. Hold also that the returning to defendant a promissory note, given \}j him to lessor of plaintiff, payable upon getting a gotKl title to the land, waa not a sufficient consideration on which te found protnis« to relinquish the possessions This was an action of ejectment tried at Lunenburg. There was a verdict i6r the defendant, and a rule Nisi was obtained to set aside that verdict. Halliburton, C. J., said; — The plaintiff founds his claim to the premises: 1st— Upon a grant dated 11th January, 1828, of 500 acres of land, in the township of Chester, being the .sam« tract of land formerly set off to Simon Griflin. 2nd — Upon an attorn- ment signed by defendant, acknowledging that he held the premises as tenant to plaintiff, dated after the grant. 3rd — Upon a promise made by defendant to give up the possession of the premises to plaintiff, in consideration of plaintiff's returning to i: '•4< 102 LAW REPORTS. defendant a promissory note, which defendant had giveil i& plaintiti' as a security for the ])ayinent of purchase money, on a contemplated sale of the pn.'mises from phiintitf to defendant. Tlie defendant resists the plaintiffs claim upon the following- grounds : 1st — That the premises were formerly allotted or granted to one Griffin. 2nd — That sevei-al years before the grant to the plaintiff passed, he made an agreement in writing with Griffin for the purchase of the premises ; entered then under that agreement, built a house thereon, and cleared and cultivated part of the wilderness land. .Srd — That plaintiff knew that defendant had built and cleared upon the premises before he (plaintiff) obtained his grant from the crown. That as to the attornment : 1st. He wa& not sober when he was prevailed upon to sign it. 2nd. That plaintifl's attorney had assured him that the plaintiff had a good title to the pre- mises, which defendant contends was not true. That as to the promise made in consideration of receiving back his promissory note : That the note was payable only on condi-' tion of receiving a good title from the plaintiff; that plaintifl' had not a good title, and consequently could not convey one ;. that the note was tlicrefore valueless to him, and could not con- stitute a consideration to support a promise. On turning to the proof, it appears that the land in question had been called Griffin's land for thirty-six years past ; that a person calling himself Griffin was at Chester 15 or IG years ago, and entered into an agreement with the defendant and his brothers to sell them this tract of land, one hundred acres to each, for the price of £12 10s per hundred acres ; that this agree- ment was reduced to writing by Caspar Eisenhaur, of Chester, and loft in his possession. It cannot now be found. The last account we have of it was, that the plaintiff was seen )'eading it.. No money was paid ; but Griffin promised to return in the fall to give the title and receive payment. The purchasers Avere at once to enter into possession under the agreement, which they did, and built their houses, and commence(.l clearing the land, the whole of which was then wilderness. Griffin never returned. One of the Avitnesses says he understood he went a fishing voyage to Labrador that sea.son, and he has never heard of him since. In the fall of that yc^r, after the defendant and his brothers had entered and built, and were living upon the land. Miller came to Chester and advertised it for sale, as executor of one Stevens, who he said, had a license of occupation of it. The Lantys attended the sale, and forbade it, stating that they had bought it from Griffin. ■ Miller said he only sold Stevens' title. The land LAW REPORTS. 163 en t(y on a It. )Aving^ d or gr-ant Avith that part !ient lias been macle> and having been thus recognized by the grant, it must have been mediately or immediately under the sanction of the crown. The grant admits that the crown has Ix^en divested of the possession, if not of the title to these lands; and it could only in one way regain the possession, until which it was incapable of granting the lands even if the title was still in it. But the evidence of the crown being out of possession is not derived from tlie state- ment in the grant alone. At the very time it passed, the land was actually in the full possession of the defendant and others, who had before tliat purchased it from a person of the name of Griffin, claiming it as the rightful owner. These purchasers had entered into possession of their several portions of one hundred acres each — had built houses thereon — had improved, cultivated and fenced part of the land. Now, if the person from whom they purchased was, as he represented himself to be, the real owner, and claiming under the crown, and in the absence of any proof whatever to the contrary, and particularly after a general verdict for the defendant, I do not know how we can possibly assume it to be otherwise, then undoubtevUy the defendant and the other Lantys liold as he held, and their possession being lawful and not merely that of trespasser and wrong-doer, would cover, not only the part of the land actually occupied, but would extend over the whole tract. Even if the Lantys are not to lie considered in possession of the whole tract, the crown is not the less out of possession, and the right of possession must still be in Griffin or his heir, until the crown has taken, if it can take, the proper steps for re-investing itself with that right. This is one of those cases which shew the great propriety and wisdom of the law in requiring an inquest of office for this purpose. It had its origin in a distant peiiod, when the state and circumstances of the country more nearly resembled our own, and when, no doubt, it often happened that the title of the crown and the possession of the subject were found to clash together. In such case the right of the latt.n- were likely to be overlooked and concealed when they stood in the way of those who were suitors for the regal bounty ; and if a gi-ant passed when another Avas in pos- session, could only be defeated by subsequent proceedings, tho odds might have been fearfully against the lawful claimant, whilst those whose claims were only of an equitable nature would be wholly precluded from the opportunity of redress. " Inquest of otKce," says Lord C. J. Hobart, [Sheffield v. Ratclitlc, Hob. 847, Yiner, office A,] "was devised by law for an authorized means; to bring the King to the land hf solemn matter of record suit- 170 LAW REPORTS. al»lc to liis ro^^ality, and for the fi((felif of the svhject, that he sliould not cntisr or seize tlie lands of the subject without matter •of record. " The King," says Lord C. B. Gilbert, [Gilb. Ex. 132, Vinner ib.,] " could not take but by matter of record no more than hi! could give without matter of record ; and this was a part of lite llherty of Englavxl, that the King's ofticers might not enter upon any man's possession till the jury had found the King's title. The law entitles the King where the property is in no man, but if any body else is in possession the land carniot be divested without matter of record. The statute of 8 Hen. 0, cap. C, appears therefore to bo only in furtherance of the conuuon law. The former of these enacts ; no lands or tenements seized intj the King's IuukIk, upon incjuest before Escheatcu-s or Commissioners, be in anywise let or granted to farm, until the same inquest and verdict be fidly n^turned into the Chancery or Exchequer. And the latter act, which was passed to remedy an attempted evasion of the other, enacts : that no letter a patent shall be made to any person, of lands or tenements l)efore inquisition of the King's title of the same be found in the Chancery or Exchequer returned, if the King's title of the same ^ lot found of record, nor within the month after the same retui.i, if it be not to him or them which tender their traverses as before mentioned ; and if any let- ters patent lie made to the contrary, they shall be void and holden for none. "The object of which," says Lord Ellenboro', [12 East., 112,] ''was, according to the words of the act, that in all cases 111 which the King's title did not appear upon record, the possession should be open to whoever could claim against the King till the final decision of the right ; and that any grant to obstruct him should be void ; and the authorities correspond with this object." The doctrine of the conmion law is : " tliat wherever the crown makes a grant which it has no power to make, or which cannot take effect, as on the face of it, it purports to do, the King is said to bo deceived, and the grant is void ; for it is the duty of the subject to see that the King is duly informed, for the King hath the charge of the commonwealth, and there- fore cannot attend his private business, and the grants which he makes he makes as King, and therefore as King he ought to be so instructed, that his purpose and intent shall take effect," This grant shews that the crown must have already parted with the possession. If it has not, therefore, lawfully regained that right which it has not been shewn to have done, the grant is incon- sistent with itself, and upon the face of it void. To induce the crown, then, to do such an act, which neither comports with its honor nor its power, restrained ^ it is both by the common and LAW REPORTS. 171 '/, tliot he it luattei- l^^x. 132, no more is was a hi.i^ht not i^und the 'orty is in cannot be I'n. G, cap. raoii law. 1 intj the |i.'isioner.s, iicst and 51'. And I evasion to any e Kinnr's ■oturned, r within or tliem any let- 1 holden bro', [12 tt in all ord, tlio inst the •■rant to nd with hicrover lake, or I to do, or it is formed, there- lich he to be I his th the t right incon- ce the th its tl and statute law, it is clear that it must have been deceived by a mis- representation of the true facts of the case. These facts were wt'll known to Miller, the grantee, and we may well believe that if when he applied for the grant he had coimnunicated to it his own knowl('(lge of the facts, a grant could never have been made to the })rejudice of others, who, unde • such circumstances, were then actually dwelling upon the land. As the crown, then, " can only grant what it may laiufulh/ gnmt" [1 Co., 52,] and that rule has been here violated, it has been deceived, and the grant to i^Iiller is void. The lessor of the plaintiff, then, would have no ground on which he could recover in the action, unless tlie defendant has precluded himself fi'om setting up any defence to it by the facts which appear in evidence. The defendant, after Miller had ob- tained this grant, entered into an agreement witli him for the purchase of this land, which he was already claiming to hold Tuider Griffin, and gave his promissory iiote for the stipulated price, which some years afterward, being unablo to pay, was given up to him by Miller, on the understanding that the latter sliould retain the land ; and subsequent to this. Miller applied to, and obtained from, defendant, an attornment, by which he consented to become his tenant at sixpence per week. An objection was raised to this last piece of evidence, that it had been obtained from defentlant when he was in a state of intoxication and in- capable of executing it, which was a fact submitted to the jury, who must be taken to have decided for the defendant : and one of the grounds of the present application for a new trial is, that they were not warranted by the evidence in so finding the fact. If the case depended upon this, I confess I should have wished that matter again left to another jui-y, for I am by no means satisfied with the conclusion Avhich this one has come to upon it. But it will not be necessary to do this, for, admitting that it was executed when the defendant was perfectly competent to do it. I think, under the circumstances of the case, that even tins attornment, (and it is the strongest point in favor of the plaintiff,) does not preclude the defendant from shewing the absolute want of title in the lessor of the plaintili, and, in the absence of such title, from successfully defending the action. The purchase and the attornment are of the same class of evidence. They are admissions made by him, very strong, no doubt, and, taken by themselves, would be conclusive ; but far from being so if the defendant is not precluded from shewing that they were made under mistake and ignorance on misinformation. — [9 B. & C, 68G.J When a party has come into possession under another, ho 172 LAW REPORTS. sliall ner.s()n it!r, [()' >ijIo i.s title ; n lias lod to ay not icioMt net, in nee of ■nnian that it n and I ini.s- I'ulo oi^ent, ion is ession ly and made l>y tlio attoinmont, cannot for a nioniont oonntcrvail the (th.'ar |»0Miti(»n and certain fact that Milh-r had no title whatever to any part of the land, for that admission heing made in if,morance cannot ho hindinj^', and the plaintift' then is without any case and cannot recover. The verdict, therefore, ought not to be disturbed. ELLS vs. ELLS. Easter Term, 1841. HolU that M\ Rction WdUldJ ho at Common Law atfahist one of tho Executors of a will con* taliiin;^ thu fiillowln^' ht!(|iu'st : I )(ive anit bu(|tifath tn my wifo KlUahotb, a decent, Rititahle mill riiinfortiihle iniiintoimiico, to bo fiinilithuil luul proviilcii for her hy my son, Elmha Klls, hi^ioiimftt'rdireetod." And ii mihsixiuent beqiifnt and d«vi»iu of nil rusiduo, of {KirHoiiid and ro!tl estate to Kllxha, chari^ud with that bequosit. KliHha and Juiiathan KIIh wvru a|>|>olntcd Executorn. Action nKainst Ellsha. An action for a certain legacy can be maintained in Connnon Law Courtj), affainst any person, whoi under a will, is made liable to pay guch letcney, and receives undt r such will, fuiids sufticiuiit to imy it. This was an action of assumpsit against one of the executors of the will of Samuel Ells for a bequest in the will of testator to plaintiff, his wife. Plea non assumpsit. The action was brought on the following bequests, Lst., I give and bequeath to my wife Elizabeth, a decent, suitable and com- fortable maintenance, to be furnished and provided her by my son Elisha Ells, as hereinafter directed, in sickness and in health, during her life. After several devises and bequests, the will closed thus, " And all the residue of all my estate, real and personal, (after payment of my debts, funeral expenses, and other expenses) I give and devise to my son Elisha, subject, nevertheless, and chargeable with the maintenance of his mother Elizabeth Ells, and to the payment of the legacies not provided for before to Joshua Ells and his sisters, at the several periods herein directed. I hereby appoint my sons Elisha Ells and Jonathan Ells, Executors of this my last will and testament." The First Count of the declaration complains of defendant Executor of this last will, &c., for that the testator made the aforesaid bequest in favor of plaintiff, and the last mentioned devise and bequest in favor of defendant, one of his Executors, that 174 I AW REfOKTfi. testator Jicd without altering his v.iil, and that defendant took ?i.[ on hinis^olf the burtiien and execution of the wdl — that goods, chattels, and real estate of the testator came to the hands of defend:.nt. n\ore than sufficient to pay the just debts and funeral expenses and charges of proving the said will, and all the bequest.s, gifts and devises in the said Avill contained, and all the ?'esidue came to the hands of defendant pursuant to the said will and subject to the aforesaid charges, by reason of which premises the defendant became liable to furnish and provide for plaintiff a decent, suitable, and comfortable maintenance, «fec., &c., and being so liable promised, &c. The Second Count states that the testator made his will, con- taining the before mentioned becjuests and devises, and did appoint defendant one of his Executors, that goods, chattels and real estate came to defondiint's hands, more than sufficient, &lc., by reason whereof defendant became liable, &c., and being so liable promised. At the trial there were was a motion made for a non-suit upon the following objections, which were then reserved : — 1. — There is no sufficient contract between the parties either express or implied. 2. — The object sought to be recovered is too vague and indefi- nite to be the subject of assumpsit. 8. — This is not such a legacy as an action can be maintained for at Common Law, as it is not a certain legacy, nor has it ever been reduced to a certainty. 4. — That being a special action there should have been a demand and refusal proved. 5. — The witnesh, Jonathan Ells, should have been rejected on the ground of interest. The interest is that if plaintiff fails, he is, himself, bound to maintain her, having married her daughter. C. — That he was a co-ex'-^utor, and should have been joined in the action as a defendant. 7. — That he had sold lands to which the plaintiff would have had a right of dower, if nhe does not establish her right to a ip.aintenance from defendant in thi.';. LAW RfiPORTS; 175 ve mt took t goods, aiids of funera] all the all the ie said wJiicli ide for •, &c., con- upon in HalLIbUhTOX, C. J., said in considering the first ol)jection ^vhicb g-oes to the root of the action, it nuist at once ho af the ExeeufcQp's accounts with the esta,tc of the testator. I would by no means be understood to insinuate that the Statute meant to place executors here in a worse situation than * The law as it now stands is in still more gnneral lantfuasto. (I. R. S. : cap, 143, | 4. [" Every legatee n>;iy recover the atnouiit aiul value of his lej^ai^y annuity or boquest ut the common law from the uiiinlnistrator with the will an'inv.'.l ..r oYni'u(,.r, <>lfbi'i- in i^ti.^n fnr inone^' lnul mul r«o«ived or vrtherwiiia " LAW REPORTS. 177 »n that >t.s and onfi in [Tcater sIio-]it when 4^'T }ii\d LAW RKPORTS. 179 kind [nexo. mdly our loui-ts lored Exe- lit be [es or be, to •demanded, and that the defendant had refused to give her the benefit she was entitled to under the will. And I think they tnight draw this inference from presumptive evidence without positive and direct proof. This is not like a case in Trover, .vhere the original taking was lawful and not tortious, and where a direct demand and refusal must lie positively proved in order to )"ender the retention of the goods a tort. The 5th and 7th olijections are both to the admissibility of •Jonathan Ells as a witness.* As it respects the 6th objection that -Tonathan Ells was a co- executor, and should have been joined in the action as a defendant, it is clear that no action could have been sustained against him b}' this plaintifi' under the will of the testator, for he expressly directs that the maintenance he berpieaths to her shall be fur- nished and provided for her by Elisha Ells, the other executor to whom he Wjueaths property for that purpose. Nor do I con- sider this action to be brought against the defendant solely as the representative of the testator, but as being himself personally Haljle to this demand under the circumstances of the case ■declared upon and proved. [7 Pick., 296.] It is true that in the commencement of the first count he is called executor of the will of Samuel Ells (and executor he is) but he is not charged as executor. The facts are stated which gave the plaintiff' a per- sonal claim upon him, and he is charged with having personally made a promise in consideration of that pei-sonal liability. The cases in Cowper, particularly that of Hawkes v. Sanders •art} decisive ujKDn tliat point. It was contended that those cases •are overruled by Decks v. Strutt, and in England they certainly •are not, however, because any objection could be made against the justice of the decisions or the soundness of the argument in support of them, but loecause those decisions were made in a ■court which had no jurisdiction over the subject matter, Now^ .as the Legislature have expressly conferred that jurisdiction upon this court, I conceive th(i reasoning of Lord Mansfield and Mr. Justice BuUer in which the whole couit concurred, is strictly •applicable to this case under consideration. The first ca^se of Atkins v. Hill was upon a demurrer to a declaration, sul>staritialiy, and hxtin the brief statement of it in the report, I should think almost verUatim the same as the second count in the declaration in this ca.se of Ells v. Ells. It is true that the demurrer was oontiidered to admit an express promise having been made by the defendant, and the decision was founded * I have omitted these portions of the Chief Justice's opinion, ag no such fjuestion couid «e!l ■uriae iiiiUor tiie law of evidence in iiw Revise^j .^Jtatutea> 180 LAW REPORTS. mam upon that promise, liaving Leon matlu upon a sufficiui.! conniiler-' ation to maintain the action. The second case of Hawkes v. Sanders was after verdict, and an ex})ress promise had been proved on the trial. But v/e can- not fail to infer from the observation of the learned judges in those cases, that when the action was brought in a court which had undoubted jurisdiction over the subject that the proof of sufficient assets to pay a legacy would raise an implied promise on the part of him who was bound to pay it. In the case of Camden v. Turner, cited in Atkins v. Hill, it was held that an acknowledguient by an executor " that he had enough to pay," was sufficient to support an assumpsit, a.for(iuri actual proof of assets would support an assumpsit. In the next case of Hawkes v, Saunders., Lord Mansfield says, " When a man is under a legal or equitable obligation to pa}', the law implies a prouiise.. though none was ever actually made." He subsequently adds, " An executor who has received assets, is under every kind of obligation to p ly a legacy. He receives- the money by virtue of an office which he swears to execute duly. He receives the money as a trust or deposit to the use of the legatee," again, " He retains what I olongs to the Ic -atee, and therefore owes him to the amount." And be it rememi red, that^ tliis language was used in a case where the defendant, although an executrix, was held liajjle personally upon her own promise, and the judgment was de bonis propriis, (iiul de honu testatoris. Lord Mansfield, upon that part of the case said, " the demand is- certainly a personal demand against the defendant, if^ con-s^e- ({uence of a promise (express it is true) made Ijy her, she heing executrix" And in this case the same language may be used. The demand is a personal deuiand against 'Jie d*;fendant in cou- se(pience of an iiripljed promise ajising out of I/in having receivwd assets under tlx h directe/| him to apply th from the lanouage of Lord Mansfiehl, already «t*:^l. a«4 still more from that of Mr. Justice Buller, "If th€»e kud k»ei«d« iv promise, nor even an assent to the legacy, the 4efendant aaiglit have been compelled in a Court of Equity, tx" in die Boclesiastical Court to have paid it." Whether withom afeimnt she could be compelled in a Court of Law to pay it or not, » a question which it is not neces.sary to give any opinion upon t^v." But this doubt merely proceeded from the authority of the ' -nni'ion LaM v'ourts- to take cognizance of legacies, ha\ ing been q^uestioned and eaa Trtiti to su.st&in th (' ■^'- LAW REPORTS. 181 iflei*-' aiul can- !s in Jiich 'f of inise it had have no influence npon this Court if jurisdiction over such cases has been expressly conferred upon it by Statute, as I firndy think, has been the case. I ain therefore of opinion, first, that an action for a certain legacy can be maintained in this C(^urt against any person who, under a will, is made liable to pay such legacy, and receives under such will funds sufficient to pay it. Secondly, that this legacy of a decent, suitable and comfortable maintenance, is in its nature sufficiently certain to sustain an action as has been decided in the American Courts of Law ; and if withheld, I think a jury of the vicinage more competent to decide upon the compensation to be made for it than a master of a Court of Chancery, 1 am thei'efore of opinion that the plaintiff is entitled to judg- ment against the defi;ndant, upon his cnvn personal liability, and that this rule for a new trial should lie discliargi'*i iliLL, J., the question for our consideration is whether the action can be sustained. I niay at once relieve myself froiu con- sidering whether an action might not be maintaineik against the defendant in his chaiacter as , and in that capacity throughout the plaintiff seeks ti« recover against the defeiidunt solely in ccmsequence of his being possessed of sufficient assets as executor to pay and dischariie this iegaey. The pro- mises of the defendant aie laid as springing fi-om *ad arising out of the executorship and possession of assets. If the plaintiii" then i> liable at all, he is iiallt- as executor (d Sansaiel Ells. > '(W how docs the law stan< I in England witli »vg-ard to uhe sustaining of such atci actitjii as the present. The k>equeH'. of a leir»cy, whether ^Bvrai or si>ecitic, transfers r>ut an incliou-ie properr- to the l('ga5«^ To render it complete and perfect the assent -^t the ExecntciT is V'-'^iuisite- On tlie executor is devolved ah the tesuitors jir-rjMjiial piMtperty, to be applied in the tirst ■^» ■' ^ ■ payment of debts, and therefore l>t»f pre he can pay lega* . safetv he must see whether, independently of them, he hun a sul^ iency to pay creditors. If the assets prove inadequate the lo'S - ustabateor fail altogether, at^cording to the extent of <]' and if on failm of assets th*- executor pay legacies, he mak iself personally responsiljle fur debts to the amount of such iegacies. Hence, to protect tlie executor the law impr»ses th*- necessity f>f his aswnt before it can be absolutely vested. If, witlioiit such assent, the legatee take possession of th* thing bequeathed, the executor may maintain trespass against him. 182 LAVr REI-ORTS. But an assent even to a locfaey will not, in all cases, rest it in the legatee so as to enable liini to sustain an action at lawagainst the executor for its recovery. It is only in cases of specific, not general legacies that such an action can lie. To shew that an action foi' a general legacy cannot be supported, the case of Decks vs. Strutt, [5 T., R. GOO,] i.s decisive. In that case the testator had bequeathed £40 per annum for life to tlie Avife of the plaintiff", out of his goods and chattels. The defendant had proved the will and taken possession of the goods and chattels which were quite sufficient to pay the annuity. The defendant had actually paid the £40 for several years, and then refusing, th© plaintiff brought the action to recover the arreai's. But the Court held the action not maintainable and stopped Anderson who was to have argue)urt. In giving judgment Lord Ellenborough says, "General language used by the Court in giving their opinions in any case must always bo understood with reference to the subject matter before them. The question of a specific legacy assented to by an executor was not before the Court in Deeks v. Strutt, but whether the law would raise an implied promise on proof of an acknowledgment of assets by the executor so as to sustain an action against him for an annuity payable out of the general funds of the testator. But it never could be doubted but that at law the interest to any .specific thing bequeathed, vests in the legatee upon the assent of the executor." So it is plain that in no case in England can an action at law be i Maintained to recover any legacy, unless the executor has a.sseiited to it, and the necessary consequenf'e is that the present action could not be then sustained, because there is neither alleged nor proved any assent of the defendant to this legacy. But it is argued that this action can be supported under the 9th Clause of our Pro- vincial Statute, [32 Geo. 2, Cap. 11,] which enacts " That where any certain legacy is, or shall be bequeathed and given by any person in his or her last will and testament, as also where any residuary or uncertain legacy is, or shall, l>y the accounts of any executor, be reduced to a certainty, every such legacy and legacies, as aforesaid, may be sued for and recovered at the common law, any law custom or usage, to the contrary, notwith- standing." These are certainly strong words, and at first reading woidd seem to favor the position contended for by the plaintitt^", but when the results that nuist follow our decision in favor of the plaintiff, are considered, I cannot biing myself to think that it ever could have been the intention of the Legislature to have given every legatee a right to an action against an executor for a legacy, whether he assented to the same or not. To establish the doctrine contended for, the plaintiff would enable every legatee under a will, were these tw^enty or more, to commence a separate action agamst the executor at Common Law, and without the executor being able to discover how the est^ate stood, or without any assent on his part, a recovery must take j)iace. In cases where there were many legatees, all would resort to actions, and in small estates the whole w^ould be consumed in costs. A party might, Ijefoie the estate was settled, recover a legacy in a Court of Law, when, upon an adjustment of it, the 184 LAW llEroUTS. wliole estate niioht not .suHiee to pay the delits duo by tlio tes- tator. It may be said, Cluiiicery is open to the executor and he may resort thitherto compel the h'j^atees to do what justice and equity nnght lecpiire, but is an executor to be tlius (biven into Chancery when, perluips, tliore may bo no necessity for such a step, if tiiiKi wei'o yiven. Supposin*^' him, hovvtjver, to <4<) there, still he will have suffered j^reat inconvenience and incurred heavy costs in the Common Law Courts. Wo cannot, in our considera- tion, go beyond the matters directly befoio us, we can neither call before us other parties nor impose any tei'ms upon the parties to the record, but must try the naked question of legacy or no legacy. Let us look at the present action i It appears that there are several legatees under this will besides the ])laintiff, and for aught that ap})ears, the estate may at this moment b(i insolvent, at all events we have no power to incpiire into that fact, and then should it be insolvent, we shall have p(!rmitted a recovery to be had against the defeJidant for X39, which he imist certainly lose or else he must be told to go into (Jhanct^ry to recover back a sum of money which he has paid under a judgment of a Court of Law. I think he would find great ditHeulties in his way in that ('ourt, and how he would reind)urso himself for his expenses I cannot see. Could, therefore, the Legislature have intended to have conferred on a legatee a vested right, under all circumstances, to recover from an executor a legacy to which he never assented, and to drive an executor into a Court of Chancery to get rid of the action ? If the plaintiff has a right to recover she has that right, irrespective of the final settlement of the affairs of the estate, I do not find any case in which it was ever pretended even on argument that an action could be maintained at Common Law for a legacy to which the assent of the executor had not been given. In the case of a sj^ecific legacy the assent of the executor is always shewn, and if the assent must be shewn in England, I can see no reason whatever for determining an assent unecessary here, and I should be driven to it befject of tlie 0th Clause of our Statute was not intended to go beyond declaring that a certain legacy, or an uncertair one reduced to a certainty by the executor might be recovered in a Court of Law, provided that the executor, as in England, had assented to the legacy, if it was .specific or if uncertain, provided the executor, by his accounts shewed his assent from which the Clause would raise a proinise to pay. The Legislature, as it were, said, you shall not, if the executor, by any clear and distinct «ct of his own, shews LAW REPORTS. 185 that tlio estato is amply sufficient t'l pay the loi^acy, and assents to pay it, be diivcii to a Oourt of (Jlianceiy, but may n'cover it at Law. The greatest i fticacy then that can be given to this Clause is, I think, to enable a legatee to recover a general legacy when the executor assents to it, Avhieh he could Tiot in England. In short, in my opinion, the Legislatm-e, under an impression that the (Jonuiion Law Courts had i > jurisdiction whatever in cases of legacy intended to give them such jr.iisdiction, in certain cases wher( it might be proper, leaving th(i pi-opii.-ty to 1:)0 decided according to the practice and decisions in England, Now in cases of specific and general legacies, to w'lich the executor has assented, it might be very just and right to give an action at law, because it might fully bo presumed th;it such assi nt would indicate clearly the sufficiency of assets ; but until such indica- tion, 1 think it wcjuld as clearly be wrong to give connnon law jurisdiction. If the executor assents to the legacy, then, under this clause, a promise to pay is raised, and the action can be sup- ported ; but otherwise not. No assent has been shewn in this case, and therefore I think thf action not sustainable under this clause. But, granting that the assent of the executor were unneces- sary, I am by no means clear that the present legacy falls within the words of this clause. There has l)een no account of the executor shewn which would make this legacy certain, and therefore it must be referred to the words in the first part of the clause "certain legacy." Can this legacy, with accuracy, be termed certain ? I am inclined to think tluit the word certain, here used, was intended to convey the idea of a specific legacy, such as the Ijequest of a particular chattel ; but if il i3an apply to a general legacy, I still cannot discover its certainty. If the bequest, for instance, had '">een of 4()s. pc annum for life, as in the case of Decks v, Strutt, there would have 1)een certainty, and the executor would have known with precision and certainty what he was to perform and to what he was to assent ; but to bequeath to a person " a decent, suitable and comfortable main- tenance," docs appear to me a very uncertain bequest, and to depend upon many contingencies. The station in life of the legatee nmst be considered ; the place where the party is to receive maintenance ; v/hether the maintenance is to be pro- vided at the house of defendant, or whether he is to pay plaintifT in money ";ufhcient to provide it elsewhere ; whether medical aid foi nis part of this maintenance, and various other contingencies which might be put. Now, I cannot say tliat a legacy can, with any propriety, be called certain, which inv(dves ^^ii:ii„^-<^.. ^h ■■>%< ^0. O^. %^1>Tk^. IMAGE EVALUArSON TEST TARGET (MT-3) ^^ .^^.,% ' - ^ v^ ^ /,„. % w/1/ Mo i/i f M. me 1.0 !fiM I.I L25 2.2 1.8 JA ill 1.6 cf'^i^., ■' 0>. ^i=^ J^^ ^ v'' ^ % \ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY 14580 (716) 872-4503 #3 ^ /A, % %>-.. *> 186 LAW REPORTS. SO many considerations and contingencies. But it is said id certmn est quod certitm reddi potest. That maxim, however, if applied so broadly, would supersede the necessity of using i,he word certain in the clause of the statute, for there could b.e few uncertain beciuests that might not in some sense be reduced, to a certainty. The wo»'d certain, if not used in the same sense as the word spr^cific, applies in such cases as when in general legacies, a specific certain thing is given, as, I'or instance, £100, or a house, (n- a yoke of oxen, to be taken out of the estate. I think, therefore, the action must fail. 1 Zf. i ESSON vs. MAYBERRY. Trinity Term, 184-1. The Graiitc;f< of a water lot, bounded on the shore, is entitled to take up to high water mark ; and that lino of his grant changes with the gradual encroachment or retirement of the sea. This was an action of trespass, quare clausum /regit, for erecting a building on plaintiff's land, and for prostrating and removing plaintiff's buildings. The plaintiff obtained a verdict and a rule Nisi was granted to set it aside for a misdirection. The plaintifi' derived his title to the land in question through several mesne conveyances, from Mrs. Jane Donaldson. She, it appears, was, in 1818, and previously thereto, in possession of lots Nos. 4, 5 and 6, in division letter W, in the townplot of Dartmouth, derived originally by those through whom she claimed by conversance from James Purcell, of whose right or title no evidence whatever was adduced. These lots adjoined and were bounded by the waters of the harbor of Halifax, which had actually, from year to year, encroached upon the land so, that the ordinary high water mark in 1818, and still more at the present time, v/as far within what was the original bounds of the lot. In 181G the crown granted the water lots C and D in front of the division letter W, extending 400 feet into the harbor, to William Allan, Robert Hartshorne, and two others, in severalty, from one of whom the defendant derives his title. In 1818 Mrs. Jane Donaldson obtained a grant from the crown, of the lots numbered from one to six, in division letter LAW REPORTS. 187 d id >r, if r i-he .1 b.e need, sense nei-al El GO, I W, (including therefore the lots above mentioned, then alreody in possession,) together with the water lots number 3 and 4, in front of the same number. And by the description in this grant» and the plan annexed, we find that the water lots in the grant of 181 G, are those in f'.ont of lots numbers 5 and C thus granted to Mrs. Donaldson. The trespasses which are the subject of this action, are alleged to have been connnitted on the plaintiff's lot. No. 6. The defendant claims the locus in quo as being within the limits of his w^ater lot held under the grant of 1816. Hill, J. — This was an action of trespass ti'ied in Hilary term last, wherein a verdict was found for the plaintiff. A rule Nisi has passed to set this verdict aside and grant a new tjial. The trespass complained of is alleged to have been on lot No. G, letter W , at Dartmouth ; and the only question, as it seems to me, is as to what is the true line of this lot, on the western side, wdiich looks into the harbor of Halifax. The defendant owns a lot adjoining w^estwardly the lot of the plamtiff, part of which is covered with water ; and insists that the locus forms a part and parcel of this l(>t ; and if so, then there ought to have been a verdict for the defendant, because he had a right, under the pleadings, to do all that, he has done, supposing him to be the owner of the locus. Now, the plaintiff derives his title to the lot No. 6, upon which the trespass is alleged to have been committed, under a grant from the crown to Mrs. Jane Donaldson, dated 13th August, 1818. This gi-ant makes it, beginning at high water mark, on the eastern hore of Halifax harbor; chon runs from the shore several courses until it brings you to the east angle of a lot granted to the late M. Wallace ; and then it directs the course to be from thence south 55 degrees west by the south boundary of Wallace's lot 100 feet to tho said shore—- that is, the eastern shore of the liarbor as previously mentioned. The course is then easterly by the same, (that is, by the shore to the eastern angle of the water lot No. 5 gi-antod to W. Allan and others ;) thence the grant was south 55 degrees west into the harbor 400 feet ; thence south 120 feet ; thence north 55 degrees east 4()0 feet to the shore at high water mark aforesaid ; thence southerly by the dif- ferent courses of the shore to the place of beginning. The defendant claims the locus to be under a grant of water lots C and D, in front of division letter W, to W. Allan and others, dated July, 181 G, extending 400 feet into the harbor. The grant of 1818 to Jane Donaldson appears to be a grant of confirmation^ 188 LAW REPORTS. for the lot had been previously possessed and occupied. Tt appears from the case, that previously to the date of this grant, the sea imperceptibly and gradually had encroached upon and washed away pari/ of the shore, and of the land which origin- ally might have been within the bounds of lo^. No. G ; auvl that at the time of its passage there was not 100 feet in measure left between the eastern angle of M. Wallace's lot and the high w^ater mark at the shore ; but that to complete this, you must run into the harbor and take in the loons. And the plaintiff contends that he has a right to run and complete his 100 feet ; if he has not, aiifl must be bound by the high water mark as it was in 1818, then the whole trespass complained of was within the bounds of defendant's lot, as granted to Allan and others, through wdiom he claims. The grant to Jane Donaldson, it must be remarked, bounds the lands therein on the lot granted to Allan and others. Now, the plaintiff can stand in no 1 tetter situation than Mrs. Donaldson ; the grant that he took from the crowm bounds her upo^i high water mark, and the language is, that the line is to follow the courses of the shore at high water mark. But it is contended, that as originally the high water mark extended into what the defendant now claims as his, and as the possession was in conformity therewith, the crown would not, by its grant to Allan and others, pass anything failing within this original hijjh water mark. But the cases cited from 3 & 5 B. & C, are conclusive upon this point. That where the sea recedes, and gradual and imperceptible accretions are made to the land adjoining the sea, these belong to the owner of. the land adjoining ; so where the sea makes imperceptible and gradual encroachments upon the land, these belong to the crown. We have, not long since, had this question mooted in this court, wdiere the wdiole doctrine touching it was very fully gone into. I take it. therefore to be (pdte beyond dispute, that the crown had a right to all the water, and land covered -with water, up to high water mark, on the 13th AugUjSt, 1818, when it passed the grant to Mrs. Donald- son : because whatever may have been previously the precise point of high water mark, that if altered by degrees would give the crown a right. The question, then, for the cons'deration of the jury, was to ascertain where this high water mark was in 1818. But their attention w^as draAvn to high water mark as it originally existed, and the verdict has evidently been founded upon the assumption that the plaintiff had the right to sustain his action for any act of force committed by the defendant within that original mark. The question as to the right of the crown, in 1818, to the encroachments made by the sea, appears to have been reserved for the consideration of the court. LAW REPORTS. 189 The plaintiff, then, has obtained a verdict for acts of trespass committed, as appears from the evidence, below hiyh water mark, as it was in 1818. It has been urged that the one hundred feet given in the grant of Mrs. Donaldson horn the eastern angle of Mr. Wallace's- lot, are not limited and restricted by the words " to the shore," but that the plaintiff has the right to his complement of feet though they should carry you beyond the shore. But this can- not be so. Where a gi'ant or deed gives a starting point from which you are to run so many feet to a natural tixed and deter- mined boundary, the boundary is the ne plus ultra. A mistake in the measui'ement cannot operate against that about which there can be no mistake. Besides in this case such a construc- tion would, independently of being against all principle, be absurd, and in reality give the plaintiff nothing ; for, granting him entitled to his one nundred feet, and to rini beyond the shore to complete it, still the grant directs the line to run from thence south-easterly " by the shore." Now, certainly running in the water would not be running by the shore, and we nmst therefore retrace our steps from the extreme "WTist point of the one hundred feet directly to the shore, in order to enaljle us to run by it southerly, as the grant directs. This, in fact, would give the plaintiff no more than if he stopped at the shore, unless indeed it might be the imaginary line itself. It has also been urged, as a technical objection, that the defendant is a ten&nt in common y\\i\\ others of the lot he claims, and therefore he is not entitled of himself to set up the defence ; but no authority has been cited to show that one tenant in com- mon cannot in any way and every way defend the position and occupation of the whole land held in common. I see no pi'inci- ple against it, nor do I find any case warranting such a position. If the defendant stood here in the position of plaintiff, the case might be difterent, for then damages recovered might belong to all the tenants in common, but I see no possible objection to one tenant in common defending his possession against the acts of trespassers. I am of opinion that the rule should be made absolute. Bliss, J. — It appears to be fully and clearly settled that the sea .shore is that which lies between the ordinary high and low water marks. " That this originally belongs to the crown, and can only vest in the subject as the grantee of the crown." — [Per Bayley, J., Scratton v. Burne, 4 B. & C, 498.] That when this high water mark, in the course of time, becomes gradually and imperceptibly changed by the encj'oachraent or retiring of the 190 LAW llRroUTS. i sea, the land in the one case which is thus gained bj* the accre- tion belongs to the proprietor of the land — and in the other, when it is the shore which is enlarged, " it belongs to the person who has the shore at the time when the accretion takes place." • — [Per Holroyd, J., il). 402.] The rule operates alike for and against the crown, or the grantee of the crown as the owner of the shore, on the one hand, and the riparian proprietor on the other. The principles of natural justice seem to require that the rule should be reciprocal, and the case of Scraiton v. Burne leaves not a doubt on this point. — [4 B. &:, C, 49.'.] This prin- ciple, being established, appears to me to be conclusive on the whole case now before us. Until th^ grant, in 1318, to Mrs. Donaldson, she had a poawssion only of the lot which adjoined the shore, but no sufficient title against the crown : and if her title had been ever so good, the principle which I have mentioned would have limited her right according as the sea advanced upon the land, unless she took steps to reclaim her possession against its encroachments. Mrs. Donaic>on, however, not only had no sufficient title to the lots in letter W, l)ut by her acceptance of a grant fi-om the crown she precluded herself from all claims incon- sistent therewith. The crown, then, having a clear and indisput- able right to the shore— that is, to the high water mark as it then was and nnght be — and Mrs. Donaldson being in possession of the land above it, the crowm granted, in 1816, to Allan, Harts- hornc and others, the water lots C and D, in front of letter W, • — that is, the water lots in* front of Nos. 5 and G, letter W, for so it is clearly and demonstrably shewn by the subsequent grant of 1818. The term w^ater lots might possibly, if taken per se, be of a doubtful meaning : l)ut here, explained as it is by the subse- quent grant, I think there can be no doubt as to what was intended to be granted. They ai-e described as water lots in front of lot letter W, but the lots in letter W were at this time, accord- ing to the principle which governs land so situated, bounded by the then high water mark. The grant, then, of 1818, must have included the sea shove. " which would convev not that which, at the time of the grant, is between high and low water mark, but that which from time to time snail be between those two ter- mini."- -[Per Bailey, J., 4 B. & C, 498.] The description in the grant of 1818 supplies, I think, also some further evidence that the water lots in the grant of 181 G Were intended to extend as far as the high water mark — or, in other words, that the grant to Mrs. Donaldson of the lots in letter W, which were immediately in the rear of those water lots, only intended to givew them to her down to the high water mark. It LAW REPORTS. 191 begins at high water rtv 7j on the shore, and runs Up tlie breadth of division letter W, and then the length of the six lots to the eastern angle of No. 7, and from thence one hundred feet to the said shore ; thence by the same (that is by the shore) to the eastern angle of water lot No. 5, (granted to Allan and others;) then by the south line of that water lot four hundred feet into the harbor ; then at right angles, or nearly so, one hundi-ed and twenty feet ; thence four hundred feet again to the shore at high w^ater mark ; and lastly, thence by the different courses of the shore to the place of beginning. Now, in this last place, by the courses of the shore is meant the line of high water mark, and notl:nig else can be meant, for it runs from one point at high water mark to another. In this part, therefore, the lots in letter W are distinctly bounded by the shore at high water mark. Can we then suppose that when other parts of these lots are also bounded by the shore — the proper and correct meaning of which would extend it up to high Water mark — that any other than the same connect meaning is to be affixed to that word, and that it is to bear two different significations in one and the same description of one and the same continuing line ? It is true the line from the street is des- cribed as one hundred feet to the shore, but the shore is the substantial part of the land described ; and if there be any inconsistency between the measurement as stated and that, the former must be rejected in favor of that which is fixed and certain. The Attorney General, in support of his view, would read it as if it were one hundred feet into the shore. Bufc this, besides being contrary to the obvious and proper meaning of the word, and opposed to the sense in which the shore is spoken of in the rest of the description, would be reversing the rule by which grants from the crown are to be construed, and giving a forced construction in favor of the grantee. He also urged that the grant to Mrs. Donaldson was to be considered as a grant of con- firmation, and was therefore intended to extend the whole one hundred feet to confirm her prior possession ; but if the crown had previously granted in 1816 the water lots, which I consider to have included the whole shore up to the high water mark, it could have had no right to grant any part of that shore subse- quently to 1818. I have, however, already pointed out how, by this shifting of the high water mark and the principle of law applicable thereto, Mrs. Donaldson could have no claim to the possession of the land lying below it, although it may have onco formed part of the lot of land of which she was in possession. To suppose, then, that the crown intended to grant to her the 192 LAW REPORTS. whole one hundred feet, which would carry it below this high water mark, would be a violent presumption to entertain as against the crown, and we should not be warranted in giving that construction to the grant even if tliere were no other objections to it. I think, then, that the defendant who claiins under the grantee of the crown of the shore was entitled to the increase which the shore has since gained ; and the question for the jury should have been, whether the supposed trespasses had been committed above or below the then high water mark. This was indeed the strong inclination of mv opinion at the trial ; but as I did not suppose much doubt could be entertained as to that fact, and having not much opportunity of examining fully the grant of 1818 and its plan, it appeared to me that the question which was to be decided by the court could be raised as well under the directions which I then gave. This, I am satis- fied, was wrong ; and the case must therefore, if the plaintiff' require it, be submitted again to the jury. There was indeed another objection taken as to the defendant's not having shewn a sufficient title to justify him in prostrating and destroying the plaintiff's building, but it does not appear to me to have any weight. The defendant, it is true, derives his title from one only of four several grantees of the water lots ; but by that conveyance he became a tenant in common with the other three, and was seised of an undivided fourth part of the whole. The erection of the building by the plaintiff on any part of these lots was equally an unlawful act as regarded him, and he had the same right to remove it as if he were the sole owner of the whole. It is true that tenants in common cannot sue separately for a trespass to their land, because the damage is entire, and all must join in personal actions. But each one may, I think, separ- ately defend his possession, and do any act which all might do conjointly in defence of that possession short of maintaining an action in respect of it. Rule absolute for a new trial. LAW REPORTS. 103 high in as iving other laims o iLhe >n for liad nark, the lined SEAMAN, 2nd. vs. DEWOLI. Trinity Term, 1845. The Provincial Statute, 34 Qeo. S, c. 16, protecting offlucrs and others their assistant*, acting under the warrant of a Justiue, extends to, and includes them, when acting under an execution sub* stituted for such warrant. Tliis was an action of trespass for taking a Sleigh ; tried before His Lordship Judge Hill, at Cumberland, in October, 1843. Besides the general issue, the defendant pleaded in justification that he was a Surveyor of Highways for Pugwosh ; that the plaintiff was a resident there, and liable to perform statute labour on the roads ; that he had been duly warned, and neglected to attend and perform his work, whereby he forfeited Ss. for every day's neglect ; tliat defendant had applied to a Magistrate to sue plaintiff for the forfeiture ; that the Magistrate accordingly issued a summons for plaintiff to appear before him and answer the said suit ; that the writ had been served upon the plaintiff, but he did not attend at the return of the writ, and the Magis- trate, after examining witnesses to prove the case, had given judgment against the plaintiff for 21s. debt and costs ; that on the defendant's application, the Magistrate issued an execution on such judgment directed to a constable with instructions to- levy the amount on the plaintiff's goods and chattels. The- defendant then alleged that under said execution the consta- ble and the defendant as his assistant took the sleigh in. question, and therefore justified the taking complained of. To this the plaintiff replied that he had not been duly* sum- moned to appear before the Magistrate in the said suit, upon which issue was joined. On the trial it was proved that a con- stable accompanied by the defendant had seized and taken away the plaintiflf's sleigh, worth about £6 10 — the witness also stated that the constable had at the time a writ against the plaintifl;' with him, and seized the property under such writ. Upon the pleadings and proof, J/j'. James Stewart for the ^^efendant, submitted that the action could not be maintained •It appeared by a demurrer in this case, that the Justice had In the summons named the .plaintiff— James Seaman, Igt, instead of 2nd— which was the error relied upon by the plaintiff. 13 194 LAW REPORTS. i against the defendant, inasniucli as tlie plaintiff liad not proveil any demand of the perusal and copy of the Execidion&H rerpiired hy the Provmclal Ad uJf Geo. 5, Cap. lo. Sec. ?, hy whieli the constable and the defendant actin^^ in his aid, waiv. protected in this acticn. The learned Judye being of this opinion, directed a nonsuit, but the plaintiti's counsel declini'ig to submit thereto, the jury under the charge of his Lordship, found a verdict for the defendant. A rule nisi vas obtained on the ground that the Statute only applied to WARRANTS granted in criminal matters, and not to process, for the recoveryof debts before magistrate,**. At the sittings after Michaelmas Term last, Gray for tlie plaintiff, argued strongly in support of the rule on the aboVe ground ; he also contended that there was no distinction between a Surveyor of Highways proceeding before a magistrate to recover forfeitures incurred under the Highway Act for the benefit of the roads, and a person sueing in the same manner for his pri- vate debt — that if the protecting statute did not apply to the latte ■ it could not apply to the former, as the proceedings were precisely the same in both cases. He also urged that it was no part of the defendant's duty as Surveyor of Highways to point out the plaintiff's property to the constable. That by sueing the- plaintiff to judgment and causing execution to be thereon issued, the defendant had fully discharged the duty imposed on him by the Highway Act, and that accompanying the constable after- wards to levy the execution was voluntary and gratuitous. And defendant could therefore claim no protection under the 54th Geo. 3 : — That as the 8ummo7i8 had not been duly served upon the plaintiff, the Magistrates had no jurisdiction in the matter, and the whole of the proceedings were erroneous. For the defendants /. Stewart insisted that the verdict could not be disturbed in any view of the case. He contended that by the Common Law, all Judges, Officei's, and Ministers of Justice, and 'persons acting in their aid are (without the assistanqe of any statute) protected where the subject matter is within their jurisdiction ; whether the proceedings are erroneous or otherwise. But 2nd — That where magistrates e^xeed their jurisdiction^, tSVf REPORTS. 195 oved the 1 in ivto, fur Y/liother in ciiiuiiml or civil nrntters, if acting ho^mjidc, they as Well as the otticers executing thcur process, and persons acting in tlieir aid are entitled to the benefit of the protecting statute o-t Geo. 3, the Magistrate's execution authorised l»y tlie Provincial Statute, being in reality a warrant under tlie Imnd and seal of tlie Just'ce } the only ditterence being in the name. That in the present case by the pleadings, the plaintiff admitted the Magistrate had jurisiiiction over tlic sulject matter X)i the suit before him, and as the constable was by law boujid to 'execute the writ, he woidd be justified taking the plaintiff's pro- perty as directed by the execution, and if the constable was jus- tified, the def<'?idant acting in his aid was also justified, or if not Jalii/ justified at Common Law, uras at all events entitled to the .protection of the statute. The opinion of the Court was in Trinity Term last deliveretl hy Judge Bliss, viz. :-^ This was action of trcspas?* for seizing and carrying away a «leigh of tho plaintiff. — 'JMie defendant pleaded 1st, the general issue, and 2nd, that he was a Surveyor of Highways, and that plaintifi' being a person liable to work thereon, and refusing to do •so, the defendant caused him to be summoned before George Bergman, Esq., a Justice of the Peace of the County, for the for- feiture imposed by the statvite in that belialf. That the plaintiff made default, whereupon the said Justice gave judgment against him for tho forfeiture and costs, and on the defendant's applica- tion issued execution for the same, directed to John Kelvine, a ■constable, under which the said constable and the defendant as his assistant, seized and took the said sleigh. The Repacation denied that the plaintiff had been summoned before judgment was given, and on this issue was joined. At the trial of the •cause before Hill, J, at Amherst, the plaintiff proved the taking •of the sleigh, by the defendant and the constable, and rested ; when /. Stewmi) on behalf of defendant, moved for a nonsuit, on tlie ground that as the defendant was acting in aid of the con- stable, no action could be brought without a previous demand of the warrant acconling to the Pro. Act 54th, Geo. S, c. 15 ; the Jearned Judge was of thrt opinion, but the defendant's counsel •decliaing to submit to it, the jury, under the directions of the Ju.ge found a verdict for the defendant — a Rule Nisi to set this verdict aside was granted, which was argued in Januaiy last, at tlie sittings after term by Gray for plaintiff, and J. Steivart for 19G LAW REPORTS. n defendant. The question raised and now to be decided is whef^ ^ this case falls within the statute. That is, 1st — whether thd statute which protects officers and otliers acting under the luar- rant of a Justice, extends to and includes the officer who act.9 under an execution issued by the Justice in a case like the pre- sent, and 2nd — if the officer himself is entitled to the protection of the Act, whether the d(!fendant here can claim it as acting in his aid. It is wholly unnecessary to inquire whether the .statute applies to the case of an execution i.ssued by the Justice of the Peace, upon a judgment in an ordinary suiiv between two parties ; the present case differs widely from that. The defendant here is a public officer ; a Surveyor of Highways, compellable by the Pro. Act. [7 Geo. 4, cap. i?,] to serve in that office unrler a pen- alty — sworn to the faithful discharge of its duties and liable too, to a penalty for every neglect of them. One of these duties is to notify those who are bound by law to perform labour on the roads and see that they do it, and when it is neglected to prose- cute for the penalties thereby incurred, and to receive and expend them in the public services of the roads and bridges. Formerly under the old Act I, Geo. 3, cap. IJf, the forfeitures imposed for neglect of labour on the highways, were upon the complaint of the surveyor, to be levied by warrant of distress and paid over immediately to the surveyor. But by the 13, 14, Geo. 3, c. 3, the law was in this respect altered as it stands under the Act at present in force, [7 Geo. 4> C. 2 ;] and these for- feitures are now " to be sued for and recovered by the Surveyors of Highways before Justices oi." the Peace in like manner as debts are sued for and recovered" — and when received to be applied to the repairs of the Highways, &c. Had the original mode of proceeding still continued, there could not be a doubt that the officer to whom the wan-ant of the Justice was directed would have been within the protection of the Act 54, Geo. 3 ; the case of Harper vs. Carr, (7, T. R., 370,) is conclusive on the point, in which it was held that a Church- warden who distrained for a poor rate under the warrant of a Magistrate, came within the Act of 24, Geo. 2, c. 24, of which our Provincial Act is only a transcript, and Lord Kenyon then said it had always been extended to Surveyors of Highways, whose duties it may be remarked are very similar to our own officers with respect to enforcing labor on the roads and recovering penalties for neglecting it, (See Bums' Justice, 716,) and the alterations in the manner of recovering these penalties substi- tuting a suit for a complaint and an execution for a warrant arc still essentially the same. In both the proceedings are imposed LAW REPORTS. 197 upon the svrveyor as a public duty, and in liotli tlie process by "A'hich the forfeiture is enforced, is to he issued hy the Justice. The difference between a wan ant and such an execution if any at all there be, is in name only, and in King vs. Hens, [0 T. 11., DcS] Lord Kenyon says a " Wairant of Distress is in the nature of an Execution." If then, the party who executes such warrant is protected by the statute, he who levies under the fxccuf ion which has been substituted for the warrant, must come within it also ; for the policy of the law must bo the same in both cases, when the two are identical ; and if the very letter of the Act does not include such an execution, it comes within the fair meaniuf^ and spirit of it ; and indeed it would be the most narrow construc- tion which could exclude the officer io whom the execution is directed from that protection which it was the intention of the Leofislalure to afford him in all such cases ; and the statute should receive a liberal interpretation, — Nor can we doubt that this defendant also comes within it, as one p ^ting in aid of the con- stable. He was not, as was ar^ied at the ar<]jument a mere gratuitous actor in this matter. His duty — the fair and efficient discharge of his duty is not fulfilled by the sim])le act of pro- secuting to Judgment and causing the execution thereon to bo issued; by doing all this and no more, he itilght very possibly exempt himself from incurring the penalty oi nedect, but tho highly important and public service of the roads requires the officer to see that the forfeitures which he is to receive and expend on them should be promptly levied. And he only is tho efficient and faithful surveyor who attends to this ulterior duty. He therefore who accompanies the constable to p' int the pro- perty of the delinquent, and assist in seizing it, is but performing a part of the duties of his office and deserves, and is entitled to the same protection as the constable himself. It wuuld be singu- lar indeed if the surveyor was protected by the statute when the warrant is directed immediately to himself as it is in England, and was out of its protection, when thus acting only in aid of the officer who executes it here ; though a stranger would be entitled to it, — There can be no distinction m principle between the two cases. But the case of Patron vs. Williams, et al [3 B. and Aid. 330,] has decided this matter though the case turned upon another point. The question there arose upon the 8th Sect, of the English Stat, of 24 Geo, 2, c. 44, [the 10th of our Pro, Act,] which enacts that no action shall be brought, unless within six months, against any Justice of the Peaqe for anything dpne in the execution of his office or against any constable or other officer or person acting as aforesaid. And these last words 108 LAW KEFORTS. were held to apply to the last antecedent word ^Kvson, and t»> mean acting in aid of the constable." And not that the constable must be acting in obedience to the warrant. — And thcrefore- where under a warrant directing him to take the goods of the plaintiff', believing them to be his he was entitled to the protection of ihe statute. Now in that case the warrant was issued against the late Overseer for the arreai-s of his account, and two of the defendants were the succeeding overseers who, with the consta- ble, seized the goods in (piestion, and the Rule for a nonsuit waa made absolute, thus shewing that the overseers were equally pro- tected as the constable undei that clause of the statute. And as the language of the clause of tiie Act, under which the present question arises is the same, the same decision mvtst equally apply to it. The ruling of the learned Judjje at the trial of tlds causo was then perfectly right, and tlie verdict cannot be disturbed. The rule therefore m'l^t be discharged. McKENZIE vs, McKENZIE. Michaelmas Term, I84.S. One partner cannot enter on his partner's land and remove a buildinff, though that building be mere'y on bK)ck8, and has been built by partnership funds, and Intended for a store to carry- on the partnership business. Thi!5 was an action of trespass qu. cl. fr. The plaintiff had carried on business in Cumberland for many years. He took into partnership his nephew, the defendant, who had resided with him from boyhood. The business was carried on in a store situated upon plaintiff's land. Some time in the yeai 1845 or 1840 a new store was built on plaintiff's land and placed on blocks. In the Summer of 184G, the defendant entered iind removed this neAV store (which was unfinished) and placed it on land adjoining the plaintiff's. It if; for this act the plaintiff has brought this suit Verdict for plaintiff. Rule Nisi to set aside the verdict for misdirection was granted. Halliburton, C. J. — The defendant contended that this store was partnership property, and therefore he had a right to enter and remove it. The learned Judge thought that he had no auch right, tind directed the jury to find for plaintifir". The proof that defendant entered the plaintiff's land and removed the store, was clear. 1st. To support the defence. LAW REPORTS. 199 therefore, it was necessary for the defendant to estahlish the fact that the store was partnership property, and, 2nd. If it were that the law authorized him to enter upon the plaintiff"8 land and remove it. The first question of fact was for the consideration of the jury. What the learned Judg'c's directions were relative to it, does not appear upon the very brief report of the char^^e ; hut had 1 presided at tho trial, I shouW not have hesitated to have told the jury that I deemed the evidence insufficient to estahlish the fact of the store being partnership property,* ♦ * * * But admitting the fact to be established in favor of the defend- ant, doc the law sanction what he has done ? In the consideration of this branch of the case, our attention has b'^en turned -o those cases between Ipndlorvl and tenant, in which, for the advancement of agriculture and commerce, the old rigid rules of law, relative to fixtures, have been judiciously relaxed, and tenants who, while in possession of premises which they have rjnted, have been permitted to remove buildings whi^h they had placed on the land for agricultural or eommer- cif • purposes solel}'. It is not necessary to enter into any of the distinctions which these cases exhibit, because I should readily admit, that if the relation of landlord and tenant had subsisted between these parties, and this building had been erected by the tenant for the purposes of trade, that it was not fixed to the freehold in such way as to prevent his removing it. That rela- ti(jn, however, did not subsist. But it is said that as a co-part- ner, he ha^^ a right to enter upon the plaintiff's land and remove the partneiship property. We have been told of the unlimited power which every co-partner has over the partnership property. The power of every individual co-partner, acting ostensibly as such, is undoubtedly very great over the co-partnership property ; but I do not think it would justify the defendant in entering upon the plaintiff's land for such an olject, even if the plead iiigs would allow us to consider such a defence. There was a build- ing in the course of erection oix plaintiff's land for the purpose of carrying on the partnership business therein. The defendant, while that partnership subsisted, might have justified entering upon the plaintiff's land to carry on the business ; but he enters not for the purpose of carrying on the business, but of can-ying off the property of the co-partnership, a>id removing it from the premises of the plaintiff and placing it on the land of the stranger, so that the plaintiff, who, to say the least, had an equal ♦ His Lordship here commented rpon some of the evidence as respects that fivcv. This has been omitted. 2U0 LAW REPORTS. right with himselt, could not enter this store without becoming a trespasser ; and this he requires us to consider a defence under the general issue. In the case of Anthony v. Haney, [8 Bing, l^G,] which was as this is, — trespass qu. cl. fr., — the defendant pleaded a justifi- cation that certain goods of his were on plaintiff's land, and that he entered for the purpose of removing the same, doing as little damage, &lc. This plea, upon demurrer, was held illegal. TiNDAL, C. J. said — to allow such a statement to he a justi- fication for entering the soil of another, would be opening too wide a door to parties to attempt rightirg themselves without resorting to law, and would necessarily tend to a breach of the peace. Independent, then, of all difficulties relative to the proof, the act complained of was not within the scope of the co-partnership. The entry for such purpose was not sanctioned by the relation between the parties, — could it have been, it should have been specially pleaded. For these reasons, I think the verdict was right, — that there was no misdirection, and that the rule for a new trial should be discharged. HECKMAN vs. ZWICKER. Easter lei^m, 18^9. Where the detendant had been discharKcd by plaintiff's consent out of custody, and subsequently gave a nott *or the debt, held sufficient consideration to sustain action on note. This was an action of assumpsit upon a promissory note. The plaintiff" had recovered judgment against the defendant in a for- mer action. Under that judgment execution had been sued out, and defendant had been taken. To procure his discharge from that and other executions, he entered into a composition deed with his creditors, and transferred his right in certain land to his creditors, which it was expected would realize sufficient to satisfy their claims. The plaiiitifi" agreed to become one of the tri. tees, and paid the expense of preparing the deed. The property did not produce enough to discharge the claims of those prior to the plaintiff"s. The plaintiff" received nothing, and defendant having been once taken in execution for his debt m LAW REPORTS. 201 under and discharged, a rule of law prevented his proceeding again. Under these circumstances, the defendant subsequently gave the defendant a promissory note for the debt. There was a verdict for the plaintiff. Rule Nisi to set aside verdict. Mr. Whidden, for defendant, argued that defendant, having been once discharged under an execution, the debt was entirely gone. — that the judgment had been sati.Siied, and there was an extinguishment of the debt, and cited [1 Str., Go3, 3 Wils., 13, 1 T. R , 557, G T. R., 525, 7 T. R., 420, 1 B. & Aid., 297, 7 Dowl., 604.] That being founded on a mere moral obligation, it was nudum factum. Mr. Johnston, in reply, contended that the cases only shewed that where a party has been discharged on an execution, he can- not be again taken on the same judgment. That there was a distinction between the extinguishment and satisfaction of a debt. The former may be by merger, the latter must be by payment. Here there was merely an extinguishment of party's right to proceed under judgment. But there was a new promise, founded on a sufficient consideration. Halliburton, C. J., said — It can scarcely be necessary, at this day, to shew that the law considers . charging a defendant in execution as a satisfaction of the debt, and that the voluntary discharge of such defendant by the plaintiff debars him from proceeding again against the defendant unon the judgment under which the execution issued. Such a discharge is not only con- f.idered as a satisfaction of the judgment against a defendant who has been taken, but it operaces as a discharge of every other defendant against whom that judgment had been entered up. But the rules of law cannot alter the nature of tilings, and although it designates charging the defendant in execution as the highest satisfaction of the debt, it is obvious in ninety-nino cases out of one hundred that it is the least satisfactory. When payment is made, the judgmen< in point oi fact is satis- fied — there is an end to the transaction — the parties are disen- tangled from each others claims, and the relation of plaintiff and defendant no longer subsists between them. But the satisfaction in point of lavj has none of this finality. The measure is gene- raPy resorted by the plaintiff with an ulterior object. He looks, if I may use the expression, for more satisfactory satisfaction than the mere detention of the defendant in custody, and hopes that it will terminate in tiie payment of his debt. The defendant, on the other side, equally knows that the claim upon 202 LAW REPORTS. tr. ..ti him is not finally settled by taking hi."? body in execution, as it would have been by payment of the debt. The relation of debtor and creditor, of plaintiff and defendant still subsists ; both have their rights. In the latter character the plaintiti" can detain the defendant in custody, until the law of nature, the common law, or the statute law will discharge hiin. Death alone can relieve him under the first. Under the second ho can compel the plaintiflT to direct the Sheriflf to discharge him, on payment of the debt and costs to the plaintiff or his attorney, as was decided in Crozer v. Pilling, et al., [4 B. & C, 26.] Under the third, he may seek relif as an insolvent debtor, in which ca.se the plaintiff" is entitled to be heard in opposition to his petition, and after his discharge, any property he may acquire is still liable for the debt. With this relation thus subsisting between them, we every day hear of negotiations between parties so situated, — the one seeking his debt, the other his liberty. Should the law impose difficulties in the way of parties seeking such legitimate objects, and, by so doing, render plaintiff's more obdurate, which Avould be the case if contracts made between parties so situated could not be enforced ? The law is neitliv^r so unjust nor so absurd. If, indeed, tlie plaintiff^ discharge the defendant from custody without guarding himself by a new contract, he can never again proceed against the defendtint upon that judgment. To such an extent has this doc- trine been carried, that in the case of Jaques v. Withy, [1 T. R., 557,] where a defendant had been discharged upon giving a fresh security, which was afterwards defeated on a mere informality, and subsequently brought an action for money had and received against the plaintiff" who had discharged him, it was held that in a court of law that judgment must be considered so com- pletely satisfied that it could not be set oflT in the latter action against the then plaintiff's demand. Had this action been brought upon the judgment, this and several other cases cited by Mr. Whidden, would have been there would be an end to the safety which our maxim that ex nudo iKido non oritur actio throws over the community. Indeed the moral obligation to perform any promise might l)e urged in support of it, and thus the whole doctrine would be overthrown But, although the law does not recognize every moral obligation as a sufficient consideration to support a promise, it does not discard such obligations altogether. Mr. Addison, in his recent work on contracts, [§ 30 & 31,] states, " That in cases where the remedy is taken away by a positive rule of law, and the pajnient of the debt remains a voluntary duty, binding only in /o)'o co)lscie7^tiaey an express promise revives the liability." The case of Wennall v. Adney, [3 Bos. & Pul., 249,]— the cases in which debts incurred by infants have been recovered upon promises made after they came of age and the numerous instances of the recovery of debts barred by the Statute of Limitations, upon subsequent promises, fully sustain the position, and, it appears to me, thia position will sustain the plaintiff's action. It is contended that the action cannot be sustained on this note because the consideration is insufficient. But dues it not eome within the letter and the spirit of the rule laid down by Mr. Addison, upon the authorities I have mentioned. That a debt was due by defendant cannot be disputed. It is equally clear that the plaintifT lias never recovered payment of it. And under the circumstances of the case can it be questioned that it was a debt due in foro conscientiae, at the time when the defencU 204 LAW REPORTS. ant gave liis promissory note, although a rule of law prevented his enforcing it. It undoubtedly was — the promise therefore revived the liability. The plaintiff is enlitled to judgment upon his verdict, and the rule to set it aside must be discharged. DoDD, J. — Concurred. Bliss, J. — I am of opinion that there was a good consideration for the note in question. The defendant boing in custody under an execution upon a judgment obtained against him by the defendant, and being liable at the same time to other creditors who had also obtained judgments against him, entered into an arrangement with them and assigned all his property to the plaintiff as trustee for the general benefit of his creditors, under which arrangement the defendant was discharged out of custody under the execution by the plaintiff. The plaintiff, under this trust deed, exhausted all the funds, in the payment of the debts due to the other creditors, receiving himself nothing out of them, but having borne the expense of preparing the trust deed, as well as the costs and trouble of the trust, without remuner- ation. Some time after this the defendant gave the note upon which the action was brought, the consideration of which the plaintiff admitted, according to the evidence of one of the witnesses, to have been the previous judgment and execution. Now, by this expression of the witness I understand to be meant that the note was given for the same debt for which the previous judgment had been obtained, and the execution levied on the person of the defendant, and from which he was discharged as before mentioned. The co7isideration for the contract, the material moving cause for entering into it — that which is the subject matter of inquiry on the (Question whether the consideration is a legal one or not, is to be collected from the whole facts. The previous judgment and execution are obviously but a part of them. The plaintiff held the defendant under execution, and discharges him upon an assignment of his property from which, both he and defendant must have expected that the debt would have been paid, they are disappointed, no part v. paid — and that which is thus recognised by both as a debt, notwithstanding the discharge from the execution, remains still a debt, but the plaintiff not only receives nothing himself in discharge of his debt, he is actually out of pocket — he has paid for the trust deed and devoted his time and trouble in collecting the funds and paying off the debts due by the defendant to his other creditors — that is, there is money paid and work and labour performed for the defendant and at his request. There is benefit to the defendant — detriment to LAW REPORTS. 205 the plaintiff — what better or stronger legal consideration can exist. If, instead of this being inferred or implied from the whole transaction, as most clearly it is to be, suppose the con- sideration established by these facts had been expressed, it would have been somewhat to this effect : The plaintiff, at my request, having discharged me from execution under an assignment made to him in trust, by which I have undertaken that his own debt should be paid as well as others, having, for my benefit and at my request, paid for me the costs of the deed. » .aployed himself in the trust and paid out of the same all other of my debts, but that due to himself, for which the funds assigned to him have,, contrary to my expectations, proved insufficient, whereby the debt still remains due to him, I hereby, in consideration of these matters, promise him to pay the said debt. It appears to me to leave no room for doubt that here is a good, legal consideration, not a mere moi'al on^. Nor need we enter into the question which has been chiefly pressed at the argument, whether the dis- charge from the execution is an extinguishment of the debt, so that a subsec^uent promise to pay it would be a mere naduTii pactwni. So far from the debt being extinguished, it is kept alive, recognized as still subsisting by the assignment under which the defendant obtained his discharge, and for the payment of which that assignment provides, though ineffectually. Nor, again, is this a mere promise to pay the debt, without other con- sideration, but new motives and other and different causes are combined with it. Acts done, services performed, money paid, at the request of the defendant, producing an advantage to him, and a loss and detriment to the plaintiff, which the promise, the note in question, to a certain extent, but not altogether, was in- tended to recompense. If such facts do not constitute a legal consideration, I know not what will, I think therefore the verdict was right, and the rule to set it aside mixat he diacharged. Verdict sustained. 13 206 LAW REPORTiS. i' li>i I HUNT, ET AL, vs. SOULE. Eaattr Term, 1860. Xppllcatlw to Rct aside process of attachment. lIcUl that when attaihinent issues npalnst a part abHi,o:uliii(f, plaintiff must furnish clear evidence of the fact to theCourt to prevent the exorcisd of their MU'iiniary jurisdiction In settinj; it aside. But when against party ahsent, defendant must i)rovo that such absence was temporary, and its issue an abuse of th« process. feliss, J. di i.-entinjj; Tliis wa.s an application to tlie Court to set asick a writ of attachment Which issued against the defendant as an absent of absconding debtor. The writ of attachment was founded upon the usual affidavit that the defendant wasbeyond the jurisdiction tof the Court when the process was applied for. Halliburton, C. J., said — These applications arc becoming frequent, and it is necessary for the Coui't to lay down some safe pi'in(!i})les for their guidance in deciding upon them. It was evidently the intention of the Legislature to restrain the issue of Writs of attachment against the property of persons resident "within the province, and to continue the right to issue them against absent or absconding debtors. While the right to issue these writs against residents as well as absentees existed, it was t)f little importance to decide under what circumstances a party Was to bo considered a resident or an absent debtor, as both were liable to such process, and perhaps it would be difficult to lay down any precise rule upon the subject. It is contended, and with reason, that the temporary absence, either u})on business or on pleasure of a person whose domicil is within tlie Province, ought not to subject his property to this incipient execution as it was formerly termed, for that might to a great extent continue the evil which it was the intention of the Legislature to terminate. And upon this principle this court iias set aside such process when it was quite evident that the absence was of that nature, deeming the issue of it under such ■circumstances to be an abuse cf the process of the court. The court has also set aside such process where it issued against a person who was within the Province at the time it issued although he had changed hiis residence from Halifax to an inland ■county. Then it was contended that the party was absconding ' — but the court were of opinion that the plaintiff must make out a very clear strong case of absconding before such process could be sustained against a person who was still within the jurisdic^ tion of the court, and upon whom with reasonable inquiry and diligence a pei^onal service might be made. LAW REPORTS, 207 apalnst a \>n.t\, mt thu uxurc'isA lent, defoiiiiant a writ of absent oi" (led upon irisdiction becomincj )wn some I. It was le issue of I resident sue them i to issue d, it was s a party both were lit to lay ' absence, iomicil is y to this might to entlon of this court that the nder such t. id against it issued an inland )8condin^ make out less could jurisdic^ [uiry and On the other hand, the court decided in the case of Starr v, Muncey, that the mere return of the defendant into the Province \vould not authorize the court to set aside the ])rocess if circum- stances authorized the ismue of it at the time, i. c, if those cir- cumstances authorized the plaintiff to deem the defendant an absent or absconding debtor when he sued out the process. It is contended that such proct^ss may issue aitlier against per- sons absconding within the Province or absent out of it. If per- sons of the first description are liable to it, then it is incumbent upon the plaintiff to estaljlish the clearest case of absconding. If the defendant is actually absent, r id out of the jurisdiction of tlie court at the time the process issues, then I think it is equally incundient upon him (the defendant) to establish to the entire satisfaction of the court tliat his absence was merely temporary, and that it was an abuse of the process of the court to sue out such a writ before they should exercise their sununary jurisdic- tion to set it aside. If the circumstances leave any dou It upon the minds of the court that summary jurisdiction ought not to be exercised, but if the defendant thinks his property has been attached unwarrantably, he should be left to his action. These are, I think, safe principles to guide them in the decision of such applications. The defendant in this case was absent at the time process was issued, and the perusal of the affidavits have not impressed me with the opinion that it is a case in which the court should exer- cise their summary jurisdiction. I think, therefore, that the rule to set aside the process should, be discharged. 208 LAW REPORTS. 1 i! LESSEES OF LAWSON, ET AL., vs. WHITMAN. Trinity lerm, 1851, This WM an action of ejectment, the loggeea of plaintifT claimlnyf under a irrant from the Crowi1< which i>aHHtid in 1773, UiclUdlnK within the description the land in qucHtiun. Tlio defendant's title wus derived under a ((rant which passed In 1784, describing the lands to bo tiilcen under It, as lyinijf tu the north of the fonner grant. In point of fact, however, the land taken possession of under the latter grunt at the time of its passing was within the linos of the furnior grant. One of the 2, wlion he convoyed it with a dwcllin;yf house, cow house. &c., to Peitzsh. Nearly (JO years a^o then the grantoo sold it and it has since passed fi'oiii puichaser to pur- chaser. It has dtv^onded from gramlson to {^nandson, and has been held adversely to the lessors of the plaintitt' and those under whom they claim, ever since Sutherland, the <,Mantee, first took possession of it. Although the possession was oripfinally taken erroneously there is no reason even to surmise that the error was intentional, no one who has been long conversant with the proceedings in this court will be surprized at it : grants, partif'ular! ;/ those con- veying large tracts or land, were seldom, if ever, laid out with any approach to accuracy, and though the mistake was a great one, and that south line of the soldiers grant, if established, would deprive the claimants of the Belcher grant of 2,000 acres of land ; yet it was not greater than that originally committed by the officer of the Crown, who, with the intention of granting, 6,000 acres of land, described it by metes and bounds, which according to the testimony of Kent, included upwaids of 8,000 ; such mistakes were of frequent occurrence, sometimes operating against the grantees, but more frequently in their favor. But without adverting to motives with which we have little to do, it is clear that in point of view, a grantee under the soldiers grant took possession upwards of 00 years ago (.)f a lot of land as part of that grant which it now clearly appears had been granted to Belcher. That he conveyed it by metes and bounds to Peitzsh in 1792, that Peitzsh conveyed it to McDonald in 1798 by the same motes and bounds, and from McDonald it has descended to his grandson, the defendant, who has long occu- pied it and exercised the usual acts of ownership over property of that nature, and therefore without laying down any inflexible rule as to adverse possession taken by metes and bounds under color of title, I think that under the circumstances of this case, the defendant is well entitled to hold all that his grandfather bought ; and therefore that the rule to set aside this verdict should be discharged. ."'i^-r .*, ."'iP-.r iisriDEs: 64 ABSCONDING DEBTOR : p^«"- Where the affidavit on which to ground an attachment contained a claim in an action sounding in damages, held that the proc comply , was summoned as agent by a creditor not named in the letter, held that not having sufficient to pay the parties mentioned in the letter, there was no goods of the absent debtor in his hands that could be attached.— We<3/<'r V. Ilarvie Held that where attachment issues against a party abscondinr, plaintiff must furnish clear evidence of the fact to the court to prevent the exercise of their summary jurisdiction in setting it aside. But when against party absent, defendant must prove that such absence was temporary, and its issue an abuse of the process. — Hunt, et al., v. Soule ACKNOWLEDGMENT : Where a party, in answer to an application for payment of curtain notes, said, " if h.3 must pay the notes he would if he had time given him," held not to be a sufficient acknowledgment to take ca^.s out of the statute. — Billingg v. Rust Where, to an application for payment of a note, defendant said, " I have had consideraole dealings with plaintiff, and if, upon those dealings, there is anything due him, I am willing to pay him," it was held not sufficient. —Keys V. Pvllok 206 88 109 ADVi^RSE POSSESSION : Possession by me»es and bounds for more than twenty ytars under colour of title, sufficient to bar claims by grantee under a former grant, even of the portion within such metes and bounds still in a wilderness state.— Z.ai«- son, et alii v. Whitman ^^^ AGENT : Where the master of a vesseirat the instance of the plaintiff's cleiK, purchased <"or cash, .' nd received the amount fron the general agent of the owner either before or immediately affir the delivery of the goods, and the master fraudulently retained the sum so received to his own use, held that the owner (who had received the goods without knowledge of the fraud of the master) was not liable.— i4/mon v. Tremlet H7 214 INDEX. ARBITRATION: page. Where arbitrators, after having examined witnesses on both sides, selected an umpire and then refused to allow plaintiff's witnesses to be re-examined, but re examined defendant's, and gave an award in his favor, tiie court would not support the award. The exclusion of the parties during the examination ot the witness before arbitrators, will not necessarily invalidate the award. — Moore v. Powh-y. li.^ ASSIGNMENT : Preferential to a bona fide creditor valid. Where the consideration expressed on the face of an assignment is larger than the actual debt due by the debtor to the assignee, it is not necessarily fraudulent. The declared intention to exclude any creditor or class of creditors will not render such an assignment invalid. The assignor continuing in possession of the goods assigned is not a con- clusive badge of fraud. — Tarratt v. Sawyer 46 ATTORNMENT : Where A holding land under an agreement for purchase from original grantee was prevailed upon bj' B, claiming under a subsequent grant, to attorn, held that such attornment was not sufficient to enable B to turn A out of his possession. — Miller v. Lanty 161 AUCTIONEER : Receiving an article, with instructions not to sell under a certain sum, is liable if he part erc the deposition of a witness was talcen, and the witness was examined at the trial of the cause, but that trial was set aside, and witn-jss died, held that such deposition could be used at the new trial.— Broiim V. Book ^ Vide Damages. FRAUD : Where question of fraud arises on n bill of sale to a creditor, it is exclusively for the consideration of the ]\xvy .— 2 airatt v. Sawyer GRANT : Where a grant of land by the crown contained clause making it void unless land granted was settled on within a certain time, luild that a subse- quent grant was invalid, not being founded on inquest o» office.— Wheelock v. McKown Where a grant to A contained a recital that the land had been formerly set off to B, and where a party was in possession under agreement to pur- chase from B, held that the grant was void, the crown not being m possession. — Ali'ler v. Lanty INSURANCE: Where a vessel being in a hopeless condition, notice of abandonment was given to the underwriters and accepted by them, but by fortuitous circum- stance she was suved from her perilous .iituation, held that the under- writers ^erc not liable for a total \oss.— Kenny v. Halifax Marine In- surance Company LEGACY: Ac. action for a certain legacy will lie in the Common Law Courts against devisee of sufficient property chargeable therewith.— A7/.s v. Ells 173 LIMITATIONS— STATUTE OF: Vide Aeknowkdgment. NONSUIT : A i)!aintiff may become nonsuit at any time before the delivery of the ve-dict. . — Gnint i\ Prui'-clion Insurance Comjiany 1* 41 161 141 V 216 INDEX. PARTNERSHIP; PAGE One partner cannot enter on his partner's land, and remove a building, thongh that building be merely on blocks and has been built by part- nership funds. — McKei tie v. McKenzie 1 98 Rl «li' ; '''■ t\ fc '.I POSSESSION: Where a boundary is a straight line terminating in a harbor, the fencin;j by that line to the water's edge, and possession of 'and so fenced, is suffi- cient to give possession of the land covered vith water. — McLean v. Jacobs 9 PROMISSORY NOTE : Where the defendant had been discharged by plaintifTs consent ou' of cus- tody, and subsequently gave a note for the debt, held sufficient consid- eration to sustain action on note. — Ileckman v. Zwicker 200 SEAMAN: Where a seaman shipped for an entire voyage, and being injured while in the performance of his duty, was left at an intermediate port, held that he was entitled to wages for the entire voyage. Where the owner furnishes a seaman, so injured, with surgical aid, and maintains him at such intermediate port, held that he cannot set off the sums so expended against such claim for wages. — Ralston v. Barss. ... 75 SHERIFF : No attaciiment can issue against sheriff in this Province for not bringing in the body of a party whom he had enlarged on ho\\.— Jackson i Campbell 18 TENANT: Notice to quit in April next, the tenancy expiring on the 8th of that month, served three months previous thereto, held to be sufficient. — Brown v. Boole 137 TENANT IN COMMON: 'gf^ One tenant in common may prostrate, and justify prostraBp of, f^ny i)uilding erected by a stranger on the land of which he is joiW owlift. — Esson v. Maijhc.rri/ 186 TRESPASS : Will not lie against grantor or his tenant, by grantee, l^rore actual entry of grantee. —Langille v. LaiKjUle W^> - ' S* U- Li. •'(,.. PAOB. a building, lilt bj part- 198 i fencin/j by il, is suffi- ■McLean v. ou' of CIJS- :nt consid- 200 I while in , held that • aid, and set off the Barss.... 75 ■nging in Campbell 1 8 at month, ■Brown v. 137 'l)uilding ■Esson V. V, f- \ 186 entry of 159 W^ .i-fif'f*^