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Les cartes, planches, tableaux, etc., peuvent Atre filmds d des taux de reduction diffirents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, ii est filrn6 d partir de Tangle sup^rieur gauche, de gauche A droite. et de haut en bas. en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 32 X 1 2 3 4 5 6 c REPORTS OF CASES ADJJtOBD IN THE COURT OF ERROR AND APPEAL. I B7 ALEXANDER GRANT, BARRISliJR-AT-LAW. VOL. II. TORONTO : HENRY ROWSELL, 1866. )<£ 0104 A TABLE or CASES REPORTED H THIS VOLUME. B. Bank of Montreal t. Hopkins. "^ *o* _ , 95 Bank of Toronto v. Eccles. Asv„for beneM of creditors-Preferred creditors-Pou>er of dehtor to mmt on release by creditors '' Bank of Upper Canada v. Brough. ^'"'''''^'"-^'"^''^■'''-Sale of eguit;, of redemption 95 ▼• Thomaa. Bernard T. Walker. Mort,je <-^tedhan^ absolute^ deed-Joint tenant-Tenant in corn- Black V. Black. ■'^* ^~:L;ij!;:;:r/'"'^'' r^ormauce-Part performance- rractm-Appeal by several defendants when one not entitled..., m 0. / Carpenter v. The Commercial Bank. Collateral security-Defence at lau>-PUa of payment ,„ Crow T. Martin. " ''''<^I''-'^<>f^<'nd^mctcfsurveyonlands,rantedbeforctkatd^^^ 4 * TABLE OP CASES. D. De«jardin,^Canal Company, The v. The Great Western Rai'way Com '*" Specific performance of agreement to accept ^ork after inspection^ t^uT '"'"'"' '" '''•'^«'-^'/-"'« '0 Lter to J., . . 330 Dickson T. Austin. Lease of Mill-Riparian Proprietor-Pleading gyg . V.Ward. lztof~'r' "-^ ^"' ""' ''""-^'"" '"'"' ''"" "//-' «"''- 275 £. Evans v. Evans. Specific Performance— Laches .. . 166 F. Freeman, Craigie and Proudfoot.-In Re. Practice- Appealable Order- Costs Freeman v. The Bank of Upper Canada. Mortgagor and Mortgagee- Judgment Creditor- Registry of Judg. *" 86 0. Ganton v. Size. Adhission against interest of party-Evidence o„» Uardiner v. Juson. V.n. Ex. issued on return to spent writ-Sale by Sheriff set aside in Mmtyat instance of another Jud-jment Creditor- Reai„ry of Judgment-Certificate of Deputy Clerk of the Cro.n-ZZ^. m Great Western Railway Company, The v. The Commercial Bank Corporaticn-Corporate Seal-Ultra Vires-M,sdirection-Non di recuon-Xew Trial-Eoidence-Res Gestae .....ZZ 285 H. Hall V. Hill. Sale for Taxes-Treasurer's warrant g„ Harper v. Knowlson. ''''^^'^-^'-P-Parinersretiringtoteindemnifiedl>ycontinuingpartners2,, Harvey y. Smith. Lien for unpaid purcUse money -Infant- Cost, 430 TABLE OF CASES. 5 Henderson y. Orores. PAQB Mtornn/ and clknt~Tru>lee m,d mlui que (ru,l- Constructive No- tice- Purchaae for value nil/tout notice Q Henriban v. Gallnghcr. Leaee with right of purchan- Personal rrpreeenlalive-Ifeir at law 338 Holcomb V. Hamilton. Mt of Exchange^ Joint action- Diuharge of one ofuveral defendants 231 J. Jamieson t. Fisher. Dower- Jointure-Marriage Settlement-. Lex locirtiiitm ojo K. Kerr v. Amsden. Registered judgment-Lien-m V.eloria, eh. 34, and 13 and 14 *'"'■><''>• ^^ 44Q T. Haldan. Interpleader issue-Assignment for benefit of creditors- J udqment creditors 382 M. MaoUonald v. MacDonell. Will, Construction of -Devising lands in Lower Canada- Condi- tional devise ^,, 341 Mo. McDonald v. McDonell. Mortgagor and Mortgagee- Mortgage created by deed absolute inform -Sale by Sheriff of equity of redmplion-ljcrm.ml cqmt,es- Statute of Limitations— McCabe v. Thompson (G Gr. 175) fol- lou-ed-Application of lUh clause of Chancery Act 393 McGuffin V. %all. Pleading— Judgment non obstante veredicto 415 Mclntee v. McCulloch, Slander— Privileged communication— Malice 39Q McQuesten v. Thompson. Mortgagor and Mjrtgagee- Chattels affixed to freehold „...., 167 N. Norwich v. The Attorney General. Advance under Consolidated Municipal Loan Fund Act-Discharge of railway shareholders by Act of Parliament-Consequent claim for equitable relief. ^ 6 Pouton T. BuIIen TADLB OP CASES. P. 879 Rcid r. Whitehead. RtgittraUon „ B. C60 8. Sexton v. Paxton. ^^ctmenl-Quudon of boundary-CotU Shiriff V. irolcomb. 219 PTomi„or,j KoU~Lown Canada Statute or r ■ : ■ l^pptr Canada ' ^ "*' ""''"■«'• reiidtnt in filmcoe T. Street. •• 616 Unpattnted landi~frilA i^^j rent land tL, 2 ::1::T"''"'~'''''"''"' ^■^'-" '0 pre- 211 Todd T. Cameron. T. Action/or rent accrued off rent w. W^estacott v. Powell. ^eduction^Lo^ofunice-Birthc/chUd.. 4S4 625 € PAOI 879 C80 •••• 210 iciion on fident in 616 ' to pre. 211 itignee to pay 434 626 REPORTS OF CASES 111 TRR COURT OF ERROR AND APPEAL. [Before the Hon. Sir J. B. Robimon, Bart., Chief Juttice; the Hon. W. H Draper, Q. B., C. J., C. P.- the Hon. Vice- Chancellor listen ; the Hon. Mr. Justice Burns ; the Hon. Vice-chancellor Spragge ; the Hon. Mr. Justice Richards, and the Hon. Mr. Justice Hagarty."] Oh an Appeal fkoji a Dkorm or tub Court or CuAiiciar. Between James A. Henderson, Henry Smith, the younger, Daniel Bryant, George Bryant, 1862. James Bryant, Charles Edward Clark, m .u,„, John Richard Clark, Wesley McRory, "wVoI" John McRory, Lewis Barclay, and James Graves, Appellants, and George Oliver Graves, Respondent. Attorn^ and eUent-Truitet and ce,tui que iruH-ConUructiv, notice — Furehate /or value wilhout notice ^1J?l*Ty '" the prosecution of suits to reooTer an estate for the fort^phtT;.?."" "T^'t*^ •" ^' A- ^''y '" » paramount t tie for the heir-at-law, and subsequently conveys the estate to A he K^h^/n' :^ •«'-«?<» """.v^yB to livers purchasers oi a b.ll filed by B., the real heir, against the attorney and A., and the Sr.^"!!.';'' ^'""^ tbem, the court-in this resrect affirmiuK Ihl decree below, as reported in 6 Grant, d. 806— adiuJffPrithl.^ . w Srhi/de?H' '''^'"'} ''•PP-re'd?hartbeltftt''h?d?o„'2 Detore his death nnnvnved I'wav oi) hi- -'-I' «— :- •• - • ■ - "K -[Sip J. B. Bobikson, Bart,C. J., dissenting.J-but somVof suoh * VOL. n. ERROR AND APPEAL REPORTS. ^ Sr.^.Srrh«^^ «-e Plaintiff, the wi.h constructive notice of th„il^^ "'7.«°' '" *''« '««»• estate by directing that under the niron.!.!. !? "® Other purchasers, profits against them should be liSjocor^l' ""'T' '' ""'" "«'' the bill, and that they should be al lid j.^^^^^^ ''<"» '»»« fi"ng of This was an appeal from the decree of the Court of Chancery, as reported in the sixth volume of the repor s of that court at page 306, Ij the defendant inTe cause, who assigned as reasons for such appeal .• 1. Because Captain Adam Gfravei, the respondent'^ anc^tor, dtd not die seised of the sai'd landsTa';!? sutement. . f- ^^^ause the respondent never had any estate or interest in the said lands, which could in any way IntitL hun to tnstttute or maintain a suit in the Cou^t ? Chancery m respect thereof. * 3. Because Messrs. Smith ^ Hendenon were never retamed or instructed by, or on behalf of the response' t' 4. Because the title acquired by Henry Sirnifi. ^ 5. Because no title or interest in th^ boIj i j ^ .he »;d mnr, Sr^uCt^l^^Ti 7^tlT^ Ba.f purchase for he Court of the reports mts in the al: 'spondent's > or any of 7 estate or ^ay entitle Court of ers never sponde-it. "nith, and le wholly urchased Is passed oa T.Jff. t of the "ore the d T.B. tutes in others, BRROR AND APPEAL REPORTS. they were bonajide purchasers for valuable consideration without notice of the alleged trust: and as such are' entitled to the protection of the registry laws as well as '""-""- the rules of equity in favour of such purchasers. "*'"••• J'/aT7 T \' '^' ^'y'''''' ^"^'^ were equitably entitled to the lands conveyed to them, under the said lease and contract for sale therein contained. 8 Eocause as to the Bryant, they had ths prior and the better equity. 9 Because the said respondent ou^ ^ to have been left to his remedy, if any, at law, the same not having been impaired by the appellants. 10. Because the said decree doth not direct any allowance to be made to the appellants for their improve- ments upon the said lands. 11. Because the said decree ought not to have charged the said appellants with any rents or profits whatever- or at all events, for any time anterior to the filing of the tta^Tltr '^' ''' ''' '''-' '' Ohancerylgainst 12. Because as to the Clarke they had been in possession of their lands for upwards of twenty years before the filing of the respondent's said bill. 13. Because the said decree should have ordered the dismissal of the said respondent's bill with costs. In support of the decree the respondent assigned the following reasons : ^ ^ 1. The property in question was vested in the defen- dant, ^enry Smith, in trust for the respondent, and the other appellants are not, nor is any of them, entitled to protection as purchasers for value without notice. I statement EHROIl AND APPBAI, BaPOKTS. 1& Ig^ and n,.e of .he .pH,.„., hasTbeeTi .^^^ W'^' retained bj tin,. '^ ""? *""■ ''«■> originally •=aoh of them no.iee of A^ ,, '''I!' "^ T""°'= ■■•* r:oi:;;-:r-°----te^^^^ ought not to be allowed to Z, "^'^'^^ ^^ appeal, and statement, pleading it. ^ "^ ^^^^ » Case without *.rp„e.a..iC:,y.fe;X^^^^^^ i» '^e »:»reiX";et,:'' ~ -^-^ .» Mr. (^-.W. f„Hhe£^,„^,^,^„^„„^ ^^^^^^ Mr. ^. CVoo*« for the Clarka. Mr. Moqf, for the respondent. Tie j«dgn,ent of ,h.oo„r.™s delivered by Bdrks, J._The ease may be 4J ■! .) • - subjeot natters of eonside™, .*t« I "" ""T "' nrat, as respects the ERROR AND APPBAI REPORTS. plaintiff '8 claim against the solicitors, Messrs. Smith d- Eenderson, and the defendant JameB Graves ; r,^6i secondly, as against all the other defendants who became purchasers either from James Graves or from Messrs. Amtth if Henderson. I see no room to doubt that Messrs. Smith ^ Sender- Bon must be considered as having originally been the attorneys and solicitors of the present plaLiff, and m the year 1846, and continued on until 1849, when several actions of ejectraent were brought in the plain- tiff s name against those in possession, but more par- ticularly the Bryants. While these actions were pen- ding, and on the 3rd of July, J«49, Mr. Smith procured the conveyance to himself from Thos. ff. Bridge the heirat-lawof^a..., S Bridge, in whom wifves d the legal estate of the lands in question; as we have every right to assume for the purpose of a decision of the . present case. The consideration paid by Mr! SmUh "^'^ aud which was from his own funds, for this^ransft was himself, or on his own account, for he says in his evi dence: «I stated to Mr. Bridge that ^I had be n employed to bring actions for the property: that I haS discovered that he had a title, and i'f he'convey d it to me, I would convey it to the heir." And Lin na^e against the^C^t:^^^ ime hat Br^d,e's transfer to him was a complete transfe of the legal estate, and that he did not become aware the fact was so, until after he had settled matters with wraiTvVf ''' t '''' ''''' ^^- *^« "^--^ was made by finding the notarial de^d or c^n- -a from Captain Adam Graves to Doty ^^^77^! Mr. Snnth did not know he had acquS thlga estt ^n make no difference in hia fiduciary relatiofand the 14 1862. ERROR AND APPEAL REPORTS. _^^ question is, what was that at that time. He certaiulv H.ode«on ^J '^cting OH behalf of and for the heir of Captain 0^,.. Adamaraves m^ that heir he then supposed and believed to be the present plaintiff, whom he supposed to be ahve. In this state of things the trial took place against the Bryants, and the defendants succeeded on the ground of the presumption that the plaintiff was not heird oT^' "" consequence of long absence without being Mr. Smith then applied to a sister of the plaintiff and of JameB Graves, to obtain instructions from Jame» Graves, whom he assumed to be the then heir of the property. An action was again commenced upon the several demises of the plaintiff and JameBQraves\g^\nBi th^ Bryants, and other actions in a similar manner against other parties. James Graves came from Lower Canada m 1850, and on the 14th of October, 1850, Mr .-.W-ent Smuh conveyed tu him the whole of the lands except lot 18 m the 3rd concession, and except what had been sold for taxes. No doubt at that time Mr. ^;;,^,/was acting as the solicitor of James Graves, and, as we mu suppose, doing so under the bond fide belief that thl present plaintiff was dead. ' *^® Ur. Henderson, m his evidence, says : "We shonld have conveyed to George Grave's iL.,oi^m' because we were bound, as I conceive, to convey to the person entitled as heir of Captain^rfam Graves" 8^. time before Mr Mh conveyed the estate to Jamis Graves and had claimed the services of Messrs. SmUh LZ r: r ^" '°""*"-^' ^^^ *'^« ^-^^^S that tTey were instructed to act in his behalf by his mother and sister; d as Mr. Smitk says, that <^ James Grave, acted as the agent of his brother, after Mrs. GraZ'l death," can any one doubt that i -ould halT legally adjudged that they stood in tba^Ht; re?: t.on, notwithstanding Mr. SmCh does say that heVeye" fe certainly of Captain pposed and e supposed took place sceeded on liffwas not hout being aintiff and m Jamet sir of the upon the ea against [* manner •m Lower 850, Mr. 'xcept lot lad been nith was fve must that the should JameSf T to the " Sup- at any Jame8 Smith it they ler and Graves ravea's ) been ?TeIa- neyer ERROR AND APPEAL REPORTS. jc saw or had any communication with the plaintiff until 1862. long after the conveyance made to J-am.«(yrat;.,.? And ^~v-^ can any one doubt, after reading the answers and evi- ""'r"" dence of Messrs. Smith jf- Henderson, that if the plaintiff ''""'• had so come to this country, that they would not volun. If' .\""^ ^"^*' '"'■^ *^^* '^'y ^^°"Jd neither have demed their position to him, nor would they have denied his right to claim the property. Then if that be so, does the fact that Messrs. Smith ^ Henderson became the solicitors of Ja«,.« Graves, under the belief that the plaintiff was dead, and acting upon that belief, having conveyed the estate to James, absolve them from account ability to the plaintiff? Looking at the facts and cir- cumstancesofthiscascldo not think they have any nght to claim such an exemption. In Kehall v. Bennett, (a) Lord Hardwicke held a w!L^ ^t!"S \P"^^'h^«^r for valuable consideration Jr^m. without notice bad, under the following circumstances : A being possessed of property in England, made his win, and devised to B. in tail, and in the event of that failing, then over to C. in fee. B. was living in Virginia and he led there, buUeft a son. C. supposinri; the estate tail was exhausted, sold the estate to D , and furnished him wich an affidavit of the death of B. with- out issue. When B.'s son afterwards filed a bill for a discovery of the title deeds and possession of the estate, ttTZl u '''Tr'^^''' ^'^ ^^'"« ^'^^^^t notice til i ^^^Z'^'"''' ^'' ^"^^"^"^^ ^« he derived title also under the same will, it was his duty to see Lculr .^'''.^'''''^""^*^^'^°^ that under the denTaTnf .r ' ''""' ^^^ "^^ ^ ^^^^^^ '' t'^le, but a wo2 1 f ^"T '" "'^""^ '^' '''''' ^««' '^"d that would not do. Now, so here in this case, Messrs. Smith tJly Z\ ^t "'> ""'^ '""""' ^'"^y '^^' ^t one time «ad a right iu equity to the equitable interest (a) 1 Atk.622. |i ! ERROR AND APPEAL REPORTS. in this property, but thej sot up as an answer to the u..j..„on plaintiff s claim, that they have accounted to another o^V.. person, whom they thought to be the heir of Captain tA\!'T: ""'^'' '^' ^'^''^ '^'°'' *1^« plaintiff was dead, but that amounts to this, that they in fact have accounted to the wrong person. The presumption which enabled the Bryants to defeat the action in ejectment, ^. the circumstances of this case, was not a sufficient w...ant for Mr. Smith in dis- regarding the plaintiff^, rights, and for all we see, he seems to have acted upon that, and, as he says, hat Miss Graves introduced James as the heir. It is true Mrs. Graves in h,r letter to Mr. Smith of the 8th of February, 1847, stated that she had not heard from her eldest son (the plaintiff) for many years, and for any thmg she knew to the contrary might not then even be m existence; but yet we see that the .-r«nt. plaintiff 8 sister had a letter from him dated at York in England on the 12th of April, 1843. Mr. Smithr.kl to this letter in his when writing to the sister on the 22nd of September, 1^49, and in his evidence he that th' T -I ''''' ""''''' '^ ^'' -'^^-- to prove that the plaintiff was alive, and that she shewed himZ outside of the lette.. holding it It a little drtance'u refused to let him see the contents. It is difficult o con It may have been, there was information which should :: Pr/^\'^--^^ "P- enquiry in respect of t e matter be ore he finally parted with the legal tate wh^ch he had acquired in his fiduciary charaf ter. Mr nlatfff '^^^''''f^ ^'' though the absence of the cent to justify a jury in defeating an action of ejectment which concludes not the righf of any oryet Jhen Mr. ^«.-,A was aware that the sister had h'eaM from him, and further, as he states, that this jZ, Graves was acting as an agent for the plaintiff after Is ngwer to the d to apother r of Captain plaintiff was in fact hare int9 to defeat ances of this SmitJi in dis- 1 we see, he e says, that • It is true the 8th of rd from her s, and for might not 30 that the at York, in i'weU refers ter on the i^idence he e to prove ed him the itance, but suit to con- ; whatever ch should ct of the al estate, ter. Mr. umed the ce of the be suffi- ction of one, yet d heard 8 James lifter his BRROR AND APPBAL REPORTS. 17 i 1 I mother's death, there was reason for pausing and making 1863 himself more thoroughly acquainted with the truth of -'^ the matter. Hendenon T. OraTM. The defendant Jame» Graves gave no consideration for the transfer to him; he knew the facts under which he acquired the property, and no reason whatever exists to excuse him from accountability, and from transferring such part of the estate as is vested in him to the plaintiff. With respect to all the other defendants, the decree of the court below compelling them to re-convey such parts of the estate as they respectively have become possessed of, is based, as I understand it, upon two pro- positions, one of which is, that some of the defendants have not as yet paid all their purchase money, and so are not in a situation to claim the position of purchasers for valuable considerauon, paid before notice of the plaintiff's equitable claim; and next, that some of the "*" defendants having employed Messrs. Smith ^ Henderson to prepare the conveyances to them from James Graves, and from Mr. Henderson, to whom portions of the estate had been conveyed, they must be considered as having constructively notice of all such facts as Messrs. Smith ^ Henderson themselves had knowledge of, and so are disabled from setting up such defence. The principles as enunciated of course are correct, but the question in the present case is, how far they apply to the facts of the case we have to deal with. Before entering upon the facts, as respects the defen- dants who have become purchasers, I think it right to make some observations upon the doctrine of construc- tive notice through agents, as applied to the business transactions of this country. I do not feel disposed to carry the English doctrine an iota further than as laid down in such cnses, as we must suppose people here either are or ought to be acquainted with, and upon ^ VOL. II. 'J :'l 18 „,;„., decision and d'^posi.fo^tCo^tr T'l.'^ °°"' J°" inow ihM i„ fo,„ Sfy- ^0 «» '"7 well eonve,«noingi„thopSwaSfr-''r'''' »'«••« »»myor,, .„d other nonrroSff''^ '"''<''''■■>■««■•». Wo proportion of 7eir°a, ?''"''•''''' ''W Forthor than that, we ho; .f? .T ""* """■"" """berles, instan es the part ' 1 1' '"'' """ « pared their own eonveyane ' r " ™ '""' P"" prepares thedeed, and 1°!''°°!'^^ "" '""•<" 'Je«gUtr,.or he Jal^? tr ''.r"''"'''"'' obtained at the instance of th„ ! j *' registrar, considerations, the genii int„r.°'-. ^^'"'' "««» «f the registration eftX hafsetr '".'^ """""^ vestigation of titles that m!„ simplified the in- for themselves, witho" rZ''ar:rr''"'r«'="^ gen leman, and inasmuch aa we know it^/'-T'''"'" /Mb,..,, the fact, that both profession J *. Jod'oially to be -ns rel, „„„i, an7^^T;'::'„ """r'"™""' "- «pon what the resistrv di<,„l„. .? '""'"'oes entirely, »% for eaeh partrinitiitwi. -? "^ '°°"' ■'«^- «rent -lioLsf a^ ttt 1 il't^ranT" '° "°"°' a <>'a;oa'r„rt:drhrr * -^^^ - ^°«'»-. ^e doctrine of eons^lr tt ^ "'y" *?« ^""O «»rf«.;.y, in J. .„ , j,^J2- ,^"'°-<""«eelIor from the case of sLitt „'"""'"'"»' W says: « N„„ referred to, it appfr/haut ilTl "'"°'' ''°» ^«» to a similar decision in afcr,!. ' "^""''=»' '"'« ""me ^^e-d to state .ha if^t^^^' »" --fess I a„ donbt whether I should arr^e at tl ""' ""'•"' ^ » I consider many ^^"'J ." ™ '""e oonclusion feethereasonforconclStw.r''' ^""' I '^"nol (a) i Drew. 883. ' ioing business -able and just all verj well 'ourths of the hool-masters, 8, and a verj nat manner, fact, that in s have pre- the vendor haps search 3 registrar, Bsido these his country led the in- be registry [■ofessional ially to be ional per- entirelj, >ch neces- employ England, 1 extend lancellor " Kow as been id come ss lam •inion I Jlusion • cannot tgagor mort- rora citor : 1862. Hendonon T. OraTM. BRROR AKD APPEAL REPORTS. and it would be a hardship upon him to say that because the mortgagor is a solicitor he is therefore to bo treated as the mortgagee's solicitor." In the same case, upon appeal, before Lord OhelmBford, (a) the Lord Chan- cellor, though approving of ffewitt v. Loosemore, yet says: « I find it very difficult to accede to the propo- sition however high may be the authority from which It proceeds, that where a mortgagor is himself a solicitor and prepares the mortgage deed, the mortga^^ee employing no other solicitor, the mortgagor must b?c°on- sidered o be agent or solicitor of the mortgagee in the transaction I think there ought to be som'eLsent on reLCthem!'' ""*'^^" '' '''''''''' ''^^ -^^*- There is one proposition which should not be over- ooked m dealing with those parties who purchased, and to which perhaps due weight was not attached, aid it IS this, that up to the time of the answers of th defen dants Messrs. Smith ^ ffendereon, fo the first bill fi ed '"'"'"' m this matter on 25th of August, 1856, and the evidence taken upon it on the 31st October, 1856, there was nothing whatever in writing in any' way 'upon which the court could enforce a trust for the heir of CapS Adam Graves. It is true that in 1850 Mr. SmitklZ veyed to the defendant James Graves all the tn , : th the exception of one lot, and as to that lot he took a conveyance to himself, and, as we can readily suppose and believe, this was done on the supposition tUZZ aravesjas the heir; but there is nothing on the facHf the deeds which would shew such to any purchasers to -have been the case. Everything, so far'ls'the ev den e discloses rested m parol until Messrs. Smith ^ Hender- ' «.n put m their answers. Mr. Smith had answer d the first bill, altogether denying his character of trustee, and Bridge on his own account, and with his own money. I am not prepared to say that it might not have afforded (a) 8 Pea. & Jones, 647. ' 19 I 20 -KiiOB A^r> ^ppHAL B,POKTfl. 1862 ^ ««PO«Tfl. ,i^ a c^"P^«to defence to all the d«f ^ • ZfZ t'on of Messrs. Smith ^ mnjf ''''^'' ^^'^^ t^* e,cep. a^,., «o far as the question o^ ZloTj^f ''"'"'' ^^4 leaving the court to dea with t '' '''' ^^"^'^^^H 'espect to some of them I slouj A° '''""'''*'«' '^"^ ^^th «ay.ng this upon such eviden t • ' "° ^°"^*- ^ «» ^«*Hessrs. ^^^V/^; CX^ ^'^ ^'^-ded inthiscase^ Po«'"oo, as being trustees Z ' "''^«'- denied their question now is^o" fl" Zt T "^' ^"^ *^« *-« other defendants. "' "'^ '^"^ehes upon the i".of May, ,841, 'i : iir/.r™ r™ ''"■» "■« Penod from £rij„. „h„° "r' ';P'"'«l'«ao within that «■» ';-« owner oV.h ' esTale" M°""c°'' '»''»'» l"" »«.horeforea„bjeo. to .twif' "*"?'' P"*"" r'"'«'" proceeds upon t jlu ^^ *• ^'^ ''•"<'« 'gainst ;'!!■» filing of .hVp,lt:^fe?^''r "' ""«~ tier purchase money in f„ll i J'"'? """^ »»' Paid up ««ate after the e,pii fj""' °^ »<>«» lad bought th^ d» fo, and therefore were in n„ -^ ''""™<' '1™ to P'"»'iff'a claim. ThTllrr '"?""» "> «sisl the "■fake, as it „^ supposed fhf°rf " ^"'""^'^ "Poo . »i.ch .0 p„„i,,,_ wC'ttTha'd r'f °'"= ^^-« i" ■ "'• They had succeeded I'n thT ''.'"',""'''« 7««rs to do .rounder the supposed delthofT^f' '"" ^ "» »ed,ately after, »amely,~„' ''^ PWntiiT, and im! '% applied through the.V ! , ""^ ^"omber, 1849 '^tt.out any idea that in p!^nToTfr,T/ ' """ "»» *>ne ^Wurehasewa.oomp,..edonthel8.hofOctoher. HBBOR AND APPEAL RBPOHTS. 1860, and the legal estate transferred to them hyJamet Oraves, he having a few days before received it by con- veyance from Mr. Smith. It is very true the Bryant, have not paid up their purchase money in full ; but the question is, whether there was any necessity that it should be done in their case to enable them to contest the plaintift 'a right. It now turns out that they do not at all derive title through the heir of Captain Adam Graves, and if they had done so it is equally clear that such heir, namely, the plaintiff, would have been equally bound to have performed the contract of purchase which the Bryants held, if they had exercised the option of purchase. No doubt they thought they were purchas- ing from the heir, irrespective of their contract at the time they made the bargain, but the question now is whether they are not in a position to set up the le«ai claim of title to them, in opposition to the plaintiff's equitable claim. The plaintiff would be bound by the contract which the Bryants held, and they have pur- , . chased from the right person to give them the title "'^* though from the wrong person to have received the money. They did not know the latter at the time, and had no reason to know that Mr. Smith had bought ud the legal estate as trustee, at least there is no evidence that they knew or had reason to know that fact. The deeds from Bridge to Mr. Smith, and from him to James Qraves, do not disclose that Mr. Smith was but a trus- tee, and there is not a tittle of evidence to shew that Mr Smith' sipoeMion was communicated to them in any way* and It now turns out that in equity the Bryant, were entitled to the land if they exercised the option of buy- ang, and this option they did exercise ; and therefore I think the doctrine of payment of the purchase in full . before notice is not applicable to their case. The fact that the Bryants did not pay money down, as their con- tract would imply should have been the terms of pur^ chase, I do not think should militate against them under the circumstances of the case. They bought in 1850 on terms somewhat varied from that of paying 21 '^'*' money (Jowii but had th ^ /™",..hojr wc>„,| |,„„ h°I°;'JTf'''''''"'°«''''' twelve *•» «n cqui(,U„ ri„|„ ,,„,, ^ « ■''"■» "« "gainst thorn "• Tho question, I tlLl„', '" '""""i '<> felain fi--! .0 .ho .,-.,„ .'„ th„;„I' :"«"•' 'V'"'"- '•" eon- I 'I'lnk tho plaintiff's bill „, „ °^ '""e PaiJ, and "wed with coats. ' °«°'»" "«"» 'kouU bi Z as to then,, ^hotho tho cot l^n "'"'' '" """"''W that is to say. »hother tZ ' "h 7'^'" "» ""I-'T, eumstanoos, that is, from 1! ^°'' ""'''"• '""b oir- '■^.cpajmont and prioe Z fuT' TJ'^' '° '«"»» of '-"unl Won,„str;n,e"b„'^';:;■'';^»'''•■■>J ''° ^eM was altogethor paramount t"''''": "«'" 'o l'""'"«e •ei^red. Tho plaintiff hid no? u^'j "" ?'««'» TOorlyexcopt s„oh as hoobtrL^.J "'""«'■ "> "-e k«v.ng bought as his » 1 -i?*' '''• **-!. lirnant, wero strangors. Tl 1 » ' °' "'"■»'' 'bo answor tho n,.„nor in which hotT" 'f °°' '» "■»» ^»M the property, and ,S was^tT'- "° "«■" '» »»' to sell to .hem, and tho S tM. "°« "° '«"%• O'-om, thoy completed .ho ™ 'J ' T« '" •'<"»■> wa- apprised of this by the r ?„'! . ^''° P'^tW admuiing the truth of .h ' » °°"""''' ''°' instead oi too mi,::!. , > Sn,... ' 'V*®^ ^^a* I think it wo„m ^ ™wo....;';:^»2^;ri"'ooirc.m..an:::^': J- "i»ue Tvith a person, that ia BBROR AND APPEAL REPORTS. M ^ncjjr. Who couia havo given them both tho equitable 18fl2. and legal title, ami afterwards completed with tho per- - son who could transfer them tiio legal estate Tho """t'""" plaintiff ,onld have raised s.ich an issue as to them if ho "'"" bad thought m jper, but he did not. Will, respect to tho purchase money, it appears that James Graves rocoivod £25, and Messrs. sZh^^-lZ derson the residue, except the last payment of X27 10s given by the Bryants. The purchase money bo received can be dealt with in tho accounts to be taken. Tho case of tho Clarks comes next in order. They purchased from James Graves, and obtained conve/ veyances on the 18th of October, 1850. JoJ^n liMard any notice of the plaintiff 's equitable claim, unless ho is VI messrs. ^mit/i ,^ Henderson, having prepared tho c»voya„ce and .I,» .ecuri.y., I. appear! .'..„: Jonfof lo „??^ T" f°«"»«ncod in .ho plaintiff's name, and ^soon .ho dem«o of J„nes Q.a.o, againa, both tho doclarafons ; and if thoy had boon sorvod, thcytaW have denvod tho information that Jamc. ff^^S •s he r as well as this plaintiff, f„r ^e deelaralions con ™.d the double de,„i»„. But Mr. Smith » y I hU evdenee ho docs no. think (ho declaration in riectmen TTf V^" **• I' »=»' ""y spok .„ Mr ^«(/. about buying, who introduced jLI aZeT^ the he.r ; and they consulted the same solicitor whom th^ J;oS;:i:romrL;s:r!f:,i'?.^''" r-^ iiB position, it is not pretended'thal lioW^f'M:' I:; K-'f I Is] 24 ERROR AND APPEAL REPORTS. T. J^^ SmUh'a position as a trustee in any way. The question H«nd«non ^^^y wer9 Seeking information upon was, whether JameB Graves was the proper person to purchase from. No one at that time knew that Mr. Smith was only a trustee for the heir of Captain Adam Graves, neither Bryant's solicitor nor any one else, and it seems that JamesGraves held then the legal estate quite irrespective of his being the heir.. Relying upon what Mr. Smit?t told them as to Jamea Graves being the heir, and upon the information they had from the solicitor they consulted, they bought. Mr. Henderson swears that Messrs. Smith ^ Henderson were not solicitors for the Qlarhs, and therefore it is re- duced to the mere fact of their having prepared the convey- ances and the Qla'.ks paying them, to establish construc- tive notice. I shall never bring my mind to think that so meagre an act as that shall cause a person the forfei- ture of an estate, and to assume that it was the duty of Messrs. Smith ^ Henderson to have informed the ClarJes that Mr. Smith was only a trustee himself, having bought the estate for the benefit of the heir of Captain Adam Graves. Therefore as John Richard Clark has paid all of the purchase money he was to pay before he had notice of the plaintiff's equitable claim, he should, I think be free. ' Judgment With respect to the other Clark, he has not yet paid up the mortgage which he gave to secure the purchase money, and as to him, I feel myself compelled to say, I think he must hold subject to the plaintiff's claim. The question with respect to him is, under what circumstances a person may be considered as a purchaser for valuable consideration without notice. It has been held in the American courts that a purchaser giving promissory notes negotiable, which may find their way into other than the vendor's hands, and so the purchaser lose both money and land, he may be considered as such purchaser the vendor having taken money's worth for the land! But here Charles Clark immediately reconvoyed the 25 1602. The money remains to be paid on thelnr.M ? °'"» ths other, .here must be either a retaTo o I,' ""'' °'' given, or a certificate registered T^ \f "" """'^ order to re-vest the lcX,a,ei„?.f ',*!,"'"""'• '» cannot admit that he sh.l ll „ . '!''*" '^'"•*- W» p.J".en.s as he may ha J Id ■ 1''' ^'•'' '""'» ''»"°"'' «fs claim, and com^U » „ Li ™ ""' "°«™ "^ P'-" "npaid of the purchase mon„ r . '"""P' ""' «"■''"• considerations, that wouTd .J: T «"'»P«»'l™' of other the circumstances of Z. '° '"^'"S' ""« ""'ior holding theleg est *e bar ""'^■' """ •^■'""■' »™''- of .he'piaintii's' : Sb n::,::rr'- to assert the plain. ffVS; /he „ °«" '' "•'"■ they should aeeount for wL, '"■^'°"^=' "<> that •ben, have or hath r IXl ft : ^.IV'^ " "'"" «f ^- War* on aeeount of th drrZc 1 '^T'' '""' ''■"*» and if it shall appear tha hXlrr "" ■°°"^^''> paid the residue of their Dureh.f "" •"" " ^"t "jgn the .eeurit/h d'b; rr';f ™"'^^"»» Plamtiff: and as .„ Jami Zv ttT '.° "° account to the plaintiff for so Tueh'of 1 °\°"''* money as he may have rJ- T, *' purchase a-d from ^eA„ iZr7:V'T '"» *^««. further directions, they should h. T" ''°<' "« the master h« made hi tpor, "'"'^'^ ''°'" f!«f , "'Vfrn BRROK AND APPBAL RBPORTS. m Sir J. B. Robinson, Bart t t«. « the evidence that Mr Cr vz « ' *PP®*" f*'o°» '862. i^ciouns occupying this property, or amftll n»,.fo ^e -^ ^ :: r ^ht t"c* ^-t;-'""-'" " "^- vested. ^ *° ^"^ '" ^^«°» the title was hea^d Jnme f """Z"' *' ^^''^^^ ^'•'^'^ ^^^^ ^^ then Orave>, „„„, f„„ ,„ ,^ " appeared bo 1^^ been „„„ than .we„.„e.. ab«„. f?„m clja ," rritt:hVsr;:£°?^=T grandfather ^rf.;« Graves Z'l^'^A "'" ^'' mi r, •!, ^^ 38 MBOK ATO APPEAI, JEPOETS. oiV„ to the land, rten the oetL? ^ «f ■Bnoi'e'. elaim plaintiff. There w"s M^edTo^'''"""' "= '"'"=■• "' "■» in the eounty regiatry frl """r^""" "P»n «cord 1886, which I LfZ%:lZ "•"'.' ""= 'th of J„r,„ry, fed respeeting ^.^1 T ." "I '" ""' *" *»■•«» »nd.i. i,,fhX:\r„\^t.L''^'t''^'- %t»irr^«:::;fi^-^tr^ to the land. But it ; " 7 * '®''* P™tonded tftle knowledge of th Z Z Z""'" ''" ""^ '""' 4 tkoyhad, „n,i. a fewlonths .% ""'f'"^ "^"^ «■«' only that he waslhe h^ f L!' T^"' "" "'"'^ ""t b"t also under the heLf .t?t-'""°^'''""«^''«; f'tkor had i„ a„coe„i „ diXi ^d frZ^I'"' '"" kavtng „,d, J ^^ « .aed the land. „„, and that George Chave> th! ^ 7 " ""■ """wwise, ?an>e the ejeotittrbUhtZf '"''''' -■■• ''•'— It as heir. "wnglit, had heoome entitled to The evidence shews al,n t .u- , . »a»ion the defendant l-j t'ln't'''';"''" '■■»' P"" "fined Ij this plai„tiK~r„r " "7'' ™'""'°' b«i»g ejeo-ment, or by Ij, J,' ™" 'j "ado plaintiff in tfif authority ,„ act for hi^.o 1° "'' "' f"^"<'''<' to have to earry it ,„ trial, in ord rl T ™ "" 'J'""""", and tkatho offered to ;heptnt»':rrV''"™"'>"°'''nd « 1.S own expense, i^theuta rlhtL I 7°"^'"" "'^ »°" kisoosts; being cenlent ,„".?,"' '"""^ '» '"y »ne for *». if be gainef posset nVelS g' """'"«» •fie were living, ov any one wh i m *'"'^'' *'•'■»«. ^..irheweredead.woJd~^r;-t-- ERROR AND APPEAL REPORTS. 29 the way ,o him to take possession. ^ "^^ QrvTM. Of all this it appears thai George Graves wli«r» ever he ™ living, k„ew „„.u J^^^ ZTJiul heref«„ „,ear that if he had returned to Canadl whUe be joement was ponding, or had otherwise become aw e d , f "■ "'V r 'u" ''"" """^ "f •"■» ■'■™». he might ha,e d.sela,med the whole prooeeding, and refu ed tofanotbn t L It '""' ■" °" ''°"''' ">"" le "-»' have doneTf he had known what we now see, and what is no" very I^ ly he eould have been ignorant of, that he had „ k his lif! Z'° "^ ''"''. '™™^ >"' grandfather hS wl t'T^- T"^"^ " ""y '" "^ohange for other lands, wh,ehh,s family had enjoyed till theP sold them The re .s no doubt that this plaintiff could have refused to pay any p„r„„„ of ,h, „„,j, ^^ ejectment that had been brought in his name, without his au h rS^' though I take .t to be equally clear that if, while the 2' """' oeed,ngs were going on, he had in any man'ner sanotS or acquiesced m them, the case would be different But so long as he was wholly ignorant of what hadl-eu done and had .„ no manner deprived himself of the rLht t ' tmt .t all as unauthorised, S„m rf- ITenJersntll think, as clear a nght to decline going on further with and at their own risk as to costs. ' As soon as they discovered either that this plaintiff ae<^ge Grave, was never seised of the land, " there was reason on legal principles to presume tha b. was no longer living, they were a. liberty, I Zkeibt for such reason, or indeed without any reason .'„ 1 tlTlj:, ^"O if a" we knew o'f the Xt^ that they had done so, and had commenced another snU at the instance of any one whom th»v v ,1 , l., owner,then there .Jm have been Z pttencet-lor u.g .pon a fiduciary relation ase.istinTheT;e« Iht M J?^ »rf Ihi, plaintiff, at ^ a~ nerer received any instracITo; T "" ""y '""' «*« never retained thL, or k ' w «n "l'?™'"""'' "t" ^ of their proeeeding • and »!,„ ?, "«' "" "' "PP"'". H™ said to have deposed. oonT. ""^ ''"'"^''" '""^ *.. in their power Jab„t ''™°° '- """■ "'"«'" " pWnliff George Grav ZT, °/-'°T "' "■» P«»«"« Before i. «.me on" he Ifend ^ J° o^'"'™''"-- !««• *™re, as he ad^ ttthatle » ^'^ *"? ^ '""' >>=-">« title fr„„ Samuel JZa^^^fT"'' °'"°'"' "■"■" " lad conveyed the land Lnft ''?°"' '"" ^"■^feWoty «.«»rfi)Lhad ,0 ° 1 1 """ °<" «'"' "hat righf *» patentee'^" ^ZT^'^'T^ "» ^-0 f""" one. having then been diCerlr^n "^f '» ""^ "e plaintiff's mother M. T I. , P™ "•"f"'-™™ to *»« "'"»fc»ei.herdidn„; W ""'^ '°°"''' "» '» «ates, tkal the plaintiff., granSr SI''"""" ■«" «° k-ow disposed of the landTpS k ^''T '''■'"='"' ''"' "«' •wears, whether ^X: I It" ?, „^°' ''"r »S, a, he •nee of the land, or had oX! V"'' """*" """"ey- eonsideration which he had or if ?" '" "'" " '■'"»°»e on with the action lains. .h» 1"°' '■"'™"°''' ""^ '''nt «•'. however, he h/n™ „„.?"""• ^"f'"'' «■« Snige, who it seems had ii-i^ *"" °' *«««' « ;/^<^« Ora^el, -lea Hf r,,'!,'"".'''/- * ^* for a very trifling consider,,' . , "S"" «o the land claim, though nothing of, ;*"J°"» b-Jing np the deed, which was a relel ,„. '""'"''"''''■" ">» Smm. "'"^ "> fee to the defendant ■This release or ninVni„- i *;.«y^gavehim,o,r:X^V*25\''°~' « ■ vonTe^„nce to shaw from ^^.1 ^ ' ^'^'^ ^^»'i Adam Qravi ^«/ and also UIlKOIl AND ippBiL BBPOETS. H We have no other account of this narf «p *i. x *« release or ,„i..e,„i„ „, ob J„ed Sof 'y^:: ^"J., I do not n,ake out from the evideDceVS >»nirt went to Sorel for the purnose «f l,-^' .hat ae^,eara.e., in .hoiX t at Z^ !!"/ on. and who had then been absent, i, ZZ^h^l Canada nearly 29 years, had been heard of '„fS even years. This, I suppose, it ™s .hough, n oe^ty to karn, upon the prineiples on which Doe^dem S y.Jfepean (a) was determined, in order that the pW„ "M^ oiectm'lVwTt in s^ 7:e!r\^f /'t^V" •'■« defendant Mr. ^^.V,, .^'^ r^^or' i^^ ? ff.»r^« ""'''<' demi«. for o.ho™i,o f . otoSrir """'"'"""•""■'r ff--^. «» in fact Iiv4°" "' "" '""' "■«' fi'^-'ir. «b«tliad been l,ear,i ..f.j,.""' """"'branding ««» wro nnable to 2™ jT"' ^"""'^ '»«<'«- o.bt:::;pr::;2.:s::ri:r;5o'TS'/«™" S'0'th.^Hendmon, on iho.IeL /., ' ''>' ''=f«»'i»nts «.son, according ,o „,„ ovidol" ,,7/' "-■■ '- 'k» •be tria i„ igjg „„,, , '","'■' """ from tlie event of 4a.ren.caJ,;drel^';":1:':' "'o defendants in the •"».»nd ft-on, other '„3rf"r"=;, '^»'«#^«'.rf..- 'be heir, on account of ,l!„ „ " ' ^'""" '=''■'«'«. "a, 0/ <^eo.o.-> death; nd npor,,!? ';'' ""' '"^P-'^''. tbat^a,,,,, arav,- iiVlZl '""''^'- "»''"«a°ding by a transfer to him f rtal?' "' """ ""'■ <•»"'««* P«»ed under tl,e .ZseutTT l"^"" '""'^ bare ■ from «»„„, i^. £, ■ : ', I-™ J-y 'bo defendant *«« ERKOR AND APPEAL REPOIlTd. 88 Ml om ftia tathei, to whom thoy had not descended About throe or four years after the selllemont made w h t|,o several ooeupauta of the land, by a,^„ ,™„° ttlo from Jam„ Grave,, the plaintiff 'al,,e L ..^ seem, came out from England. 1I„ ha,] been 1 "„„ in and had wntteu from thenoo a letter to hia mother Mr. Agn,, Grave,, then living at Sorol. This letter i;in evnlonco .„ t i, eause, and is dated the 12th o A r^ ""^ oft "^ ''"°" P"''""'' ""•' P"'ed at the tr aJ .helntS ' ;.".«°P'™'°'-. 185». '' would 1 ve .he™ that he «a hv.ng a few month, within seven years of the time when he was presumed by the iurv to b! dead. Mrs and Miss GrL. (a sister'of h s 1 ntim must have been able to provl the fact at t e r Juf nna it diflionlt to persuade myself that Mrs. and Miss Grave, .UJan,es Grave, ^ere not all aware of fto transaction between Captain Adam Grave, and the Rev ouu acres of it, had passed out of their family for a irood tion of the fact to Smith ^- JIender,on, they certainly S. hrd"''°"r'^' '"' '■' *^ f""' '■"'' •--» 'hat any thing had passed between them and Smith # Sender,.! or either of them, which could be reasonably lookedZn » a retainer or authority to act for George GraveZ the own„ of the property, I think under ™oh cTrcmJ! VOL. II. 84 ERHOR AND APPEAL REPORTS. on the pretence of id, „ J'-Z °' '" """'^' ^"•'"' orare.. ^n tlic prctciico of sucli a retainer. Mr. iSVwj'M'if letter fn Afra n « , - tliat .Into tl.nt Mr ^!J /r '"° """"^^^ ^^foro in^ "II the 980 aero, to lurn nnr .^ ^' ''"''^■ tl'atshewouI.lgivean.fnforJa 't ad::ot:^^^^ rjglit to convoy tl.o lan.ls That InH ''^ * -Kl p.-operone'forhi. tolve r et en "ori^ """"^ ^^"Pposing tl.at he ha.l been hitherto aetinr .r''"''°"' for the puposes .hieh hoad^its e^'we /olT"' what answer, if any, he received, but n hi! ''' tHophaintiff's bill Mr. ^..'M stlteft at LrX *° either was, or pretended to be, ignorant of 1; . I .a.K„.e„t. urged him to proceed with the action ''*' '°^ If nothing was heard of George Graves laf^r +1, i. h.s letter of the 12th of April ^g ™'* ^^^^^ t^^an bj other, toassumingaeLtoerthe""""™' ""'^ "° .0 ^™. Graces, I iuZofo^,7''ti^°:Cf was then the heir of George Graves ,nd IZ ,1" t entitled to any land in Upper c7XotlTli''' Grave, had died seised and intestate. ^'''"" n seems a natural inference, however ft„m nr &..«•. letter of the 22nd of Sep emblr, 1849 .^ l^'' «™~, that Mr. SM knew at the tin, of .t W."' f ke ejectment, which had taken place a few davsbefor > that a letter had been received from «lr « ' dated the 12th of April. IsllJZ ZTJ'"''': .lathe was alive, that ti.e,tho;hX.t*rC «IIR0R AKD APPEAL BEPORIS. not been allowed, .3 he etatea, ta roaj the loller and ISffi! h.dun„.,„ hie p„e,e,ei„„ ,„ p,,„,,„„ „,„„'r;:,^ J!^ If here wa, ,,„ later intelligence of l,i,„ „p ,0 Oet be r ""i™' 1850 whenlbe eonveyaneo ,vae -.an.le, tboa ,l,„ p™°,„„' °»~ ^:;::driTir;rir:r;;-'^^ fffffi-r:i;rriSrr^ h,e land and never had any. This is elear s f r a" regards the lot, 17 and 18 in the first and seeon, o" brir > . ^ "^''"' ■"'"*' ""'I'™ "° ""ention of tho broken lot m front of the lots 1 7 and 18. That prlbW arose from the eireumstanco «hieh I have stated hi the patent in his possession, whieh may have been lvin„ taken as his guide in making tho convevan-. ,!,„ whieh heboid of.be land La eertSer; ,^, 71 '"^'^ only have speeiBed the four full l„,s „„/,u ? T^ fronts may have been added in niaki'::^ Z p^;" I do not recollect that in the argument before ns an, r=:r„::titrb£'^:r '^--- Bndge, and the plaintiff's bill so states the ease Then the case stands thus : . ^. ^''^'' "^ Ci°wn granted these 980 acres of l„nj .n Pittsburgh, .0 Captain A,.„, gZ. ^ ml intb.paHshofSorel,in'w°:'c:;„ :::t;;,™ and this laud which Grave, got in exchange, bis'^family,' 80 m * (■> 86 ERROR AND APPEAL REPORTS. '802. it seema, aftorwnrda sold Thn n t , ^ Sr. «eoivo,l from ^^™ ot J ° " L •'°'''','?»'^.'»™« voyaneo, „l,ich was produrj amT ,■„ ■?'''"°' ™"- affection for I™, „„,, „.j„ ;, ° °' ' ' """"' '«« and affection for ,,i™ ^JZZZZ:: ZT' '"° ""'" ment of tl,c,„ through tho aUcTof I - - '«"" wo know i, eustomaty with ° e" ^„f . . ^f:''^' "' Canada, and this , Iced assumed t„ „ ""^ four lots of 200 acres each b,t I K?' ""' ""'^ "■« in all 980 acres. ' "' "'° '"•'''"'" f""" «l»o, con?e;^r9:fo°r:^:tfr;",^°'^ -" •"- for £280 • and «! , , ■ ' ^"'^'"' "' Montreal, whatever S„,n.el i)!). u dtnt;t„d h^T' '■°" '° '",*•",-; ^. i*.,-.,. ;. .„, on.,!;: j'ut mTr' JUii»i,t. released nil his interest to (I,„ ,l.f . „'• °^'' ■■« release, though o,pre d„ c mad "t" '""''''; ^'"' of £100, was in fa^t made Col J,7^"tVJZ "''''''' agreeing to give more, f„r .he r as'ons .ta od h .""' "araely, that at the time there was TdlTt ^ '"'"' from A,a„ ffra.es to the kerj-l «! ^''^'^''^ means of shewing th«f «,„ "ov. •/»/,„ ^„(y_ „j,j. of Lis title ; and for the f7r r„ "' "" ?™'«'' """If i?"-*,. harin. become bart?.T°" """ ^^'""^ =■ ..ohadnobeneHcialor logalV.riXorof/''"' ■ During all this time, that is from isni «.r, , 'o.'l.o Kev. Mr.i,„,;„::' ;'°,fj;f2'''°''''' evidence that either Acln.^ n ' ^^^^^ ^« «<> W= father, the eld s. son JZl « "" ^'^'^f' " entered upon the land „rl! . f '''"'"■ '"<' ^'o' . acted in a;mj:i::r:f;4^;::r.^i^ had since the sale to Botv in 1«ni / *'^'^* *'^®:^ ejalm to the propert,,^^ IftZ^:^^-'.^^^ ERROR AND APPBAI- ItEPORTS. ,, !| 87 tt y V 7:r„'''"'w", ' '" "'« "s"™™'. t-u." •ney wro, I s .pposo, ngl.ily consi.lcrc.l to bounimport- XctllL ^'^ " -Wiption ,l,„t it could not b, ouectual to convoy lamU in Upper Cunada. That at any rato can be of no consequence in the ca,e becauao the deed from A^.,n Graves to the RcTX « fol^ was one liable to no sueh objection • anHf Yw '"*""'• doeddiveacd the title r.ora A.aJi ^ZXlJtt enal .„ th„ case what became of the title afterwrd" If .n consequence of any«nt of due form SamuZt took no estate, then M„„,a, M. Bridge could never have hew any, and the foundation of the supposed la mo ehef m th,, case ,v„uld be that the defendant Z4 took a qu,t claim from a man ,vho had no interest rlt ;ng to lands in .hich the plaintiif in this su also rever ID fac had (and, for all that appears, had never rio .hat fme suppose! that he had) any i^eres" ^ ?°;l«».a»totI,eproof of ?/,„,„„ B„-ar^,.,ba„k,„-l„ and the appomtmcnt of assignees to his estate, al wh'Th .s shejvn ,n page 41 cr the case, was before he exelu cd !t ;,r . V'' ."' '"''■' "^»> " "»' «"■■» f- the'^p'roperty. »eyed it to me, I would convey it u the heir. I subse quently conveyed it to Jame> ffrave,, at the request „; Jus sjstcr, who introduced him to me, thiukingTe 11 .1, ?i° ?°i°'f '"*'"' **"' " "'• '^""■<* kM admitted tut he took th. conveyance for the heir, and JbZt ph.nt.ff waa .n fact U,e heir, that ho took the conve™ce mj^natforj.™, ffecr,e ffra„..,and thathehaaviS ♦I.-* *u ^' • -n on Uic other hamj, insist a»t th. conveyance w.. made to the person whom Z ' h.dr.a.on.obeHeve.0 be theheir, in ^paequlnrof'^ VOL. ir. 41 ''1 42 ERROR AND APPEAL REPORTS. ^ event Of the ejectment in 1849; and that the convey- Henderson ^''^ to James Graves was made not in fraudulent or GrIVe,. ^"tended violation of their undertaking or duty, but as a supposed compliance with it. The evidence siews that when the deed to James was made there was no knowledge hat aeorffe had been heard of, or was living withb seven years, wh.le it was known that he had been more than twenty years absent beyond seas, James Graves is his eides brother, and it is not in evidence that aeoral had any lawful issue who could have inherited if ThTd been m fact then dead. It is now clear, however, that in conveying to James Oravesas the heir of ^^a. (Graves, . r.LL .asloZ mated for his elder brother was at the time living though not known to be so. ^' So far as regards any really equitable consideration .«.,«.*. the propriety or impropriety of conveying to JaZ Graves is not to be determined by what waf discovered a terwards but by what appeared, and was supposed ' be the fact, when that was done which is complained of as improper. That men must in many cases be held liable to answer for the consequences of errors in o which t,ey have ignorantly fallen is undeniabeb^^^^ inor Het:: "r r«--y-J-7h- been u ! tamed Here there has been none, for the plaintiff had no nght the land in question that by an/act ^ the defendants was or could be divested or impaired. Besides, it appears to me thatjwherever in the corres pondence, or evidence, Smith ^ Senderson, or either of them, speak of the heir of Adam Qraves, the/must reasonably be considered to mean that desceLdanTo^h Who inherited this property ; not merely the person who by affinity was his heir, but the person who while these proceedings were going on was really entitlld to th land m Pittsburgh, as his h«ir. or hi-' -t ' - colour of right to it. "' ' "* '""'' '**"*« ERROR AND APPEAL REPORTS. 43 When It was ascertained, as the plaintiff in his bill 1802. admits It was, that the land had belonged to Bridge, and ^--^ when we see, as we do, from the deeds before us, that the """' "^" legal estate which the plaintiff admits was ascertained to *"""*• be in Bridge, was not merely the dry legal estate, or some outstanding interest or title which was necessary title of which the heir of Graves was seised, but that the ancestor of the plaintiff had for a good consideration divested himself more than fifty years ago of the property by conveying it to a purchaser, so that he or his heirs could no longer be the owners: when we see this to be the truth of the case, we must see, I think, that the plaintiff has no good ground for coming to a court of equity to seek to disturb the title or possession of other parties. He has no claim of any kind to stand upon-I mean no mterest-and never had any interest in this property to protect. If the court should interfere it would not be to redress any actual injury, for none has been suffered by the plaintiff, but simply fo vindrte fhe "^'"'" principle that a confidence reposed is not to be abused. Ihat the courts will sometimes interpose in cases solely on that ground, I have no doubt, but I think, for the reasons 1 have stated, that the facts of this case are not such as should induce us to do so, whatever we may think of the conduct of any of the defendants, and certainly not after the property has been dealt with as it has been since 1850, involving the interests of many parties, some ot whom have made extensive improvements. In Lester's case (a) it is said, " A man was guardian or trustee for an infant to whom lands are descended or devised, but the title in truth was in a third person : If the trustee or guardian buy in the title of this third person, this shall not be taken to be a trust for the infant, for he is at liberty to purchase it as well as any body else, and so it was held in the case of Combes and Throckmorton, by t he Chancellor." (a) 2 Freeman, 62. i Ij # 44 ERROR AND APPEAL REPORTS. ^^ InMrns v. Le^ve, (a) a case before Lord Sardtvicke bmself of the reversion from the heir of the lessor fo^ ^30 on y the estate being worth £1500 per annum uZ Hardmcke said, "it was a transaction LtrernTto Je disapproved; — "a counsel or agent/' he said, 4L' a conveyaj .. from theright heir for his own be^efitanl which he discovered by his being a trustee, does a v^v wrong thing - but he refused to declare thlt th ^Z held the reversion in trust for the infant. He though "here was no ground to stand upon, for the makfng iVbm., who had bought in the reversion, a trustee fol f person who was only a tenant for life, and took notwL m the inheritance, would be going to far." ^ This language of Lord Sardwicke, is, in this respect ^«ag«.„t, "ot.;; Po^nt in the present case: that these defendants Srmth ^ nen,er.on do not pretend that ^.^-^ATok^^^^^^^ conveyance from Bridge on his own account, thougVhe paid for It with his own money. He did take it hey admit in trust for the heir, and told Tuf^J that he would convey to the heir. Th.re is thereforoTo ques.on about there being a trust, for it is admul^ But the language of Lord Hardwicke is in point that the plaintiff here had no interest in the inheritare no noticing at present the omission of the broken fron fr, f r f '"*' conveyance,) and not being hdrto All the parties concerned were in acommon error in sun posing that the heir oi Adum dr'aves, whoever he ml be, was the owner of this land, if indeed wo can take so favourable a view of the conduct of the ChavJ^,^ o suppose them ignorant that Adan. Orav^Z IT^ with his land in Pittsburgh. It was a lar^A ..* ? ^ {«) 8 Atk. 88. ~~ BBROR AND APPEAL REPORTS. deed fr«™ n w ^ '"' '""' "' "■»' *».« took a be Jt it witV . H VT' 'f »'"«l"i"'01e,and that 46 >*i I [■ anoes.or had sold and conveyed it away for value Bv XZ ffi ! ?,5°t "'«"''"•"».) i»'» the bands of Jam, Urme,, for I think it cannot be said noon the •vdeneo that it was eertaiu:, conveyed to h?m wl anymtenfon of violating a trust-Ji,L ff^'ris". .r&int *""■'' ^ ^-"—-"d we :::: .t (?>•<.>,« i? ,h!f L . "■ '™"=''«i™« with j„„„ vrraves, it they have done any wrono- th^r-^ ov« means of redress- anri Jf f.. TT? T *^« P^^oper results an V n 1 ' , ^ ''^''** ^•"^^ '^^^^ ^o°e there 0- ^enaeraon or any just cause of complaint at thp ns^.ceof Ja«,e, ^.a.e,, or of m.nas ll\Vh^ credi ora, or his assignees, or of any one else, we'c nn go into such claim or complaint in this suit, n which 1 s only the plaintiff (^.0.^. araves who is prajng for rlief. And as to Qeor^e Graves, unless we are cleariy JodgDMIlt. ■Xl • it 'J 46 ERROR AND APPEAL REPORTS. J862^ entitled, upon the evidence, to conclude that what was l;;;^ done by the defendants in his name was not honestly o«V«. ^one, those who have bought the property, and have been in actual possession of it, and improving it, must have a better equity than the plaintiflF has, for it is now very clear, and has been ever since the deed from Adam Graves to the Rev. Mr. Doty was found, that any use that without his knowledge was made of his name and any con;iexion of his name with the proceedings in evidence arose only from a mistake ; for no one can sup- pose that if that deed had turned up before 1850 there would have been any thing done in his n tme, or any reference made to his family, or any trust declared or reserved either verbally or otherwise in his favour. Taking this view of the case as regards Smith S mnderson'aUMlitj to the plaintiflF, I do not go into the case as it respects the other defendants, the purchasers Jadgment ^om them, or either of them, for unless the plaintiff has a good equitable claim for a decree in his favour against the former, he can have none against the latter; and so It is in my view immaterial whether they had or had not notice of the alleged trust in favour of this plaintiff and whether they would or would not even without notice be liable, so long as any portion of their purchase money remained unpaid. I cannot but apprehend that my view of this case may not be correct when so many of my learned brothers whose opinions I respect, differ from it. The circum- stance that they do differ makes it proper that I should state as distinctly as I can the grounds on which my opinion is formed. ^ Seeing, as we do, little, if any thing, more of the facts of this case than is to be found in the testimony of Messrs. Smith 4 Henderson and of James Graves I think there is much ffround for infpi-r.'n" f»,=* «k-"' Messrs. Smith ^ Henderson began these proceedings to disposs desire ( was liv: evidenc advanti that afl by a fin able to 1 What each of veyance ■ that the, other po by Jami to streni accountc evidence What in the W£ that had ended, is But th of a brea( Henderso Mackreth and in nu: attorney dence rep which fail there was any ageni knowledge name, till plained of, («) 2 V< (c)8P. BRROR AND AP.'^'BAL REPORTS. dispossess the occupants, of their own accord, or at the desire or suggestion of the person named araves, who was living m Pittsburgh, (which is uncertain upoi the """'''*"' evidence,) they acted with a view to some pecuniary *"•'"• advantage to themselves, and probablj with the hope that after they should establish the legal title of the heir by a final judgment in a court of justice, they would be able to make a purchase from him upon easy terms. What they did in the end leads to this conclusion, for each of these defendants is found to have taken a con- veyance of one of the lots to his own use, and the fact • that they received the mortgages which were taken upon other portions of the land which were sold to purchasers by James Graves, as if he were the owner, contributes to strengthen this impression. We see how this act is accounted for, or attempted to be accounted for, in the evidence. I ! ; I. _ What an attorney may or may not be justified in doing in the way of dealidg with a client in the subject matter that had been in controversy, after the controversy is ended, is discussed in the case of Oldham v. Hand, (a) But this case before us is founded wholly on the idea of a breach of confidence reposed in Messrs. SmUh Jt- Henderson by George Graves. In the cases of Fox v Mackreth, (b) Osmond v. Fitzroy,{c)Qarter v. Palmer (d) and in numerous other cases, the reasons for holding'the attorney strictly to the proper observance of the confi dence reposed in him are fully explained in language which fails in its application to the present case, where there was no confidence reposed by this plaintiff, nor by any agent of his, in Smith ^ Henderson, nor any knowledge on his part of any thing that was done in his name, till every thing had been done that is now com- plained of. The only construction that can fairly be put Jndgmenb t. a) 2 Vea. 269. ;e) 8 P. W. 129. (A) 2 Br. C. C. 400. {d) 1 D, & Wal. 722, <*Am ''Mil • ERROR AND APPBAL EBPORTS. J8W^ upon the letter of his mother, who never was his agept H.dm» ^f' *"y tli'ng tliafc is ahewn, was, that she had no objeo- o^,^ tion to their proceeding as they pleased to dispossess the squatters, provided it was well understood that they were not to make her liable on any pretence for the costs of what they might choose to do. No information in regard-to the title was given by her or by any one else. She either did not know that the property had been parted with fifty years before, or if she did know it, she improperly concealed it. As to the fact which is clearly proved that Mr. Smith took the release of Brdgea' right as he now avows, and as he told Bridge himself, not for his own benefit, but for the benefit of the heir of Graves, that should, I quite agree, be decisive in favour of the prayer of this bill so far as a decree could be properly made against Smith ^ j-dr-i Henderson, that is, so far, I mean, as regards the interest which they retain in any portions of the land, but for the circumstance which is positively swotn to by them, and IS not disproved, that when they took the quit claim deed from Bridge's heir they did take it for the benefit of Adam Chaves' heir; and that when they conveyed to James Graves in 1850, it was because they believed then that he was the heir, as a court of justice had in effect determined. I do not consider that the evidence warrants us in hold ing that m this respect Messrs. Smith ^ Henderson have" sworn falsely; and unless they have, they were not guilty of a breach of any confidence that had been reposed m them either expressly or by implication. In addition to all this, the present plaintiff, we now see, according to his own statement in his bill, stands in farte^wltt 1 ^"^ °^. °°' "^^° ^*^ ^^'y y«»™ before parted with the estatA in rtrno*;«„ -^.i l.j ^ - .merest tt.t «,„id by p„,,i|,iii.j ^, j^^^ \°'\2» i ,4'Hfi ERROR AND APPHAL REPORTS. ^ release taken of all Bridge's right, for even if, contrary 1862 to ^vhat . stated in tho bill, the%roken fron h d n vor ^ toTeiir " ft"':' r " ""''''''' ^- '^' - ^^ ""^•'"" 1« r "", ^' ^'''^ *'^'^^" ^'•°'" ^''"^ «""! J no more °""- affect th.s land than any other land in tho province o than a release taken from any other person. ' tionV/t ' '^*"e^ °T ^'' ^'''' ^"J"^*^^ ^y *^'° transac ^on of Messrs. Smith ^ Henderson it is either m.as Bridge, (or the creditors of his bankrupt estate,) fron. whom a release was obtained for £2o, which, if he lad not been told it was intended for the benefit of those w1k> 1 may have supposed held the legal title, he mi^ht not have parted with for any thh.. like that small sum. That Messrs. Smith ^ Henderson, however, knew no ^X ,7.. l"\ ""*'l "^'"^ y"^" '^f^^'^^^'^rds, that Bndge s father had actually received a deed, seems clear on the evidence ; and therefore that fact could not have . influenced the transaction. •'"^•■*- The plaintiff according to his own statement in his bill, has no more interest in the subject of this contro- versy than any other person in whose name such a bill might have been filed without his knowledge : that he thing that has been done is certain. If, therefore, his suit IB entertained it can only be for the sake of vindicating the principle that an attorney cannot be allowed to violate a trust reposed in him, or turn to his pecuniary adva tage information which ho has derived from a client • an 1 I think we should not be expected to interfere on tha the plaintiff, or by any one entitled to represent him and where no remuneration was given by him, or by his agent. A decree in the plaintiff's favour under the d cumstances of thi. case would, I think, be carrying that" principle further than it has yet been carried. UrnTy VOL. 11. :!^' ■f 'i 50 ERROR AND APPEAL RBPORTB. 1869. cases that have been cited, the courts, it is true, hare H«nn «"fo»"ccd tho principle without enquiring whether the act T. Oravu. done by the agent or trustee has been in fact injurious to tho person ivhose estate and interest he was bound to consult and to protect; because, as they have said, he is not to bo the judge of that ; and in the next place, whether the interests of tho principal or ceatut que trust have, or have not in fact been injured by the agent or trustee having mixed his own private interests and trans- actions with theirs without their knowledge and sanction, would often give rise to enquiries, tedious and expensive,' which might not after all lead to any certain conclusion. But in these cases the person asking for relief has some estate and interest involved— something to protect— which is not the case here, if we take the facts to be as the plaintiff himself has stated them. jndj^ont The object of this bill is in effect to have the defen- dants declared by a decree of this court trustees for the plaintiff, contrary, as I conceive, to the usual course of equity as laid down in the cases 1 have referred to, and also in the case of Oolman v. Sorrell, (a) where Lord Thurlow says : " Whenever you come into equity to raise an interest by way of trust, you must have a vala- able, or at least a meritorious, conaiJeration : nothine less will do." ^ Upon the ground of the plaintiff's want of any bene- ficial interest in the subject matter, I think his suit should not be entertained, and that his bill should be dismissed, but not with costs as regards the defendants Smith jf- Henderson ; for there is much in the evidence to lead to the conviction that the Polictiors were acting in the matter with a view to secure a pecuniary interest to themselves, though professing to have only in view the object of dispossessing the squatters for the benefit of the (a) 1 Ves. Jr. 56. M 1868. Ilt'Dderwa T. Or«»T«i. EBROR AND APPEAL REPORTd. owners Of the land, whoever they might ho. The portion of land which each received, and the further fact that they procured from Jame, Grave, assignments of the mortgages to him which tho purchasers of other portions of the property had given for the purchase money, goes very far to shew that although the purchasers took their vlll . t\^rr'*' '^' '''^'' "''' "^ ^'^'^ respect- ively made on behalf of Messrs. Smith ^ Henderson, or of one or the other of them. There is evidence tendin. to shew that all this was upon an arrangement mud^ between ^ames Graves and them in consideration of the.r services and expenses, and money paid or advanced by them, but the testimony on that point appears to me to be very loose. I would therefore not give them their costs on dismissing the bill, but to the other defendants I would give costs. EsTEN, V. C.-I have perused the plea.Ifn , ,nd evidence as regards the Bryants, and thi ,. the^y are . , entitled to no relief whatever, as to their cove' ant "'" to entitle them to a specific performance, and the sale to hem by James Graves cannot operate as an execu! tion of the covenant, being for little more than half the and, and at a less price. Then the money has never tend that they tendered the money within the time. They would have now to take the remainder of the land, and pay cash for it, if a specific performance were !rr ; A" ' 1^"''^ ''" '""^ ""^^ ^" disappointment, for we must take the answer as stating the case as strongly as the facts warranted: and the master must report that they are not entitled to specific performance. A bill iu the shape of the answer would be demurrable. Their purchase money not being fully paid they could nol avail themselves of the plea of purchasers for valuab o „^,..u, TTUuuUt, notice, Charles Edward Clarke has not paid his purchase 52 ERROR AND APPEAL REPORTS. 1862. money. John R. Clarke was thought to have had notice n.nder,on "'^^^g^ ^^^^ '^^' McDonald, but it seema extremely A- Oraveg. 7udi;^ent. doubtful ]f such would be a right conclusion, and it ia unnecessary to express any opinion on this point. I think, therefore, that the decree should be aflSrmed m all respects except as to John R. Clarke, and except that the defendants should be allowed for permanent improvements, and of course in respect of the purchase money paid by Smith for the land on the purchase from Bridge. As to John R. Clarke, it would seem that the bill should bo dismissed with costs, supposing notice not to be established against him. Upon 1-3 general doc- trine that an attorney proceeding for the recovery of an estate for a particular person, his client, and acquiring an outstanding title, becomes as to such title a trustee for his client, I think there can be no doubt. Richards and Hagarty, JJ., concurred in the judg- ment pronounced by his lordship Mr. Justice Burns his lordship Mr. Justice ffaffart?/ stating that he did so with much reluctance, and only because he felt himself bound by adjudged cases. The principle of equity which IS hero enforced must, in this country 'be often attended with the harshest results; for a case may well be conceived in which a grantee of the Crown with the patent m his hand, shewing no trust or confidence whatever, goes into the market and sells for ^61000 payable by instalments ; which sale is duly completed by conveyance and mortgage, and all the purchase money subsequently paid up with the exception of the last instalment, say £50, when notice is given to the' purchaser of a trust in favour of a third party: under these circumstances one cannot fail to see the great har.lship of taking this property from the purchaser alter, it may be, spending many years in improving if and yet, applying the rule strictly, as we are bound to do according to the adjudged cases, the court is bound to decree in favour of the person beneficially interested 1 ; «^1 ERROR ^ND APPEAL REPORTS. al^w'Vv'rfZ' ^'^ ''• ^' ^''^^'«*^"' ^^'•^ O. J.; The Bon. Mr. Justzee Burns; the Bon. Vice-Ohancel lor Spragge; the Bon. Mr. Justice Richards, and the Bon. Mr. Justice Bag arty.-] On an Appeal proh a Jubomot of thk Couht o. Comhon Pleas. 58 1862. 5.^e...n The Bank of Torokto, Appellants, and Wit- LiAM EccLES AND OTHERS, Respondents. to vmst on release by credilon. satisfaction of Lis debtsw /!!./ ^ ^^'-■"*' '•^ ^'us'^es for the ment of the Co! of Common PearZ'; ^'"''- l'^''"""g "'« ■i"5* tered. And, fraud apart, if tho deed of the 4th of January must standalone then th^ A J a •nd proved by wS' nW ^^ ''"" '"' ""'"«■''»"<> tf"se, and o„ this princble ,> ^rt " "" '""'' ' lion of tr„,t bj/Zk!°'l I'^r '''''' ^'''^"'^ been heU, goodf a,K^:,tt d^r^ ^ l' r"^'°^' ■="' Chancery admit, n fr„.» .,"', """•"•' liy '"3 answer in .nd persona, p..„p,,,.„ .hel'lSoT^.toV'^i O^o"' This last circumstance deserves nohV^ 7 ' the main point in the case, 1 1 V w et L tl """^ ment of i^an..^', real estate for Le betlt ''l ""'" ditors should be held fraudnl.nf i f '"' *"'^- the clause in the declar t f '"^ ''"^ "" "««°»"t °f --rror:!';o:::r:,rp-::;:-^^^^ o-uI^tlX^'Sin-ritaTV'^^^""^-- I'M already been aet™l '"' " "e'"" "Web tbough J.M ;» teoTth'"" "" ^"™" ^'" notice of the terms of f . •■""■gnees, without to be disturbed „hel.--Tt',v'''' ""' '" ^'"""'^ («) 3 Ves. 707; 1 Atk. 5T;j^^^^:^_ ' 1 n*Dt. 62 ises. ERROR AND APPEAL REPORTS. the defendants, and the affairs of the trust might be placed in an embarrassing position. In the case of Owen v. Bodi/, (a) determined in 1836, and in the later case of Janes v. Whitbread, {b) and Coatea v. Williams, (c) assignments which had been made by debtors of their estates to trustees for payment of their debts, were resisted by execution creditors, on account of a clause which the assignment in each case contained, providing for the trustees continuing the business which the debtor had been carrying on, in order to the winding up more advantageously the affairs of the estate. The terms of this provision were not exactly the same in all cases : the deed that was executed in Owen v. Body, being such as afforded more ground than the deeds in the two other cases, for contending that the business being to be carried on for the benefit of the creditors of the assignor, who were to be paid jud ent ^^^'^^®"^^ rateably out of the proceeds of the business on " *"" • account of their debts, it would follow, as a consequence, that the creditors who, by executing the deed, should come in under it, and participate in the profits, would render themselves liable as partners for all the debts contracted in carrying on the business. It was on that account objected to by the execution creditor that the assignment did not make provision for a just distribution of the effects of the debtor among his creditors— since those only could take the benefit of it who might be will- ing to subscribe a deed making them partners with the trustees— that they might justly object to incurring such a liability ; and besides, as was remarked in discussing, at a later day, the effect of such a provision, it is to be considered that by employing in trade the goods and the assets of the debtor, " they put in peril the effects which ought to have been divided equally amongst the creditors."(c?) It wa s put strongly to the court th at the creditors («) 11 C. B. 400. {?^«nv. ^(,rfy, ,n the nature and extent of ih. tha?ttr°"'-' ^'^"'^' '^f ™^"^^ *^« *^« J'^^t c^ses, held that the assignments then before them did cWrll * .hat the objection taken'rl-'rrd .'^'1^ ment was not, f kt ij Tim.. ,^ • i . assign- .noes b„t„en the P^v^r ^^Ii^Vr l^ttf "^ bustnes. contained in those assi^nmenVtdXH' 64 ERROR AND APPEAL REPORTS. lfc'62. question, in Oiven v. Jiodyf and grounded their decision ^"^^^^^ entirely upon that (lifiercnce. Toronto T. EcoiM. Fiftecen yearfih id elapsed between the judgment given in Owen v. Body and those ciu^cs, win ,;h afforded ample time for considering the soundness of the decision in Owen V. Body^ first, as .to the legnl inference, that the executing creditors would, in that case, have made them- selves 1 artners with the trustees in the business to be carried on; and next, as to the consequence of such a provision, that being unjust and unrcusonablo in itself, it invalidated the assignment. The only doubt which the courts seem to have had in either of the hitter cases was, as to the effect of the assignment before them in creating a partnership busi- ness. If it had done so, they seemed quite prepared to have followed Owen v. Body in holding the assiignmcnt to be invalid ; and while they pointed out wha^ they *"*" considered to be essential differences between the terms of the assignments, they did not seem to doubt that upon the question of partnership or no partnership. Owen V. Body had been rightly decided. They inti- mated no dissent from that judgment on either ground but they held it not applicable in the cases before them, on account of the difference of the terms of the assign- ments. The late Lord Chief Justice Jervis, of the Common Pleas, in giving judgment in Janes v. Whitbread, explained the only ground of the difference. " As to the first point," he said, "the court grnnted the rule expressly for the purpose of having the deed contrasted with that upon which the case of Oiven v. Body had been decided." Upon examining that case, however, he remarked, " I am of opinion that it is not applicable to the present, for there the deed contained minute provisions, investing the trustees with power to carry on the trade, for which purpose they were authorised to lay ou up the one to} become the sa busincE on the subsidii In tl concurr also thi that tbii Body, standinc what he and a re in that ( for the who bee merely t and inte While interpose Body con must be s hend is, t reason be course of V. Body 1 "Alldeec ch. 5, sec. for any in shall be vc the intenti 'to delay, their just a 9 ERROR AND APPEAL REPORTfl. one wJuch creditors could not reasonahl, iTelZtat^ 7^ busin.3 ana ^ ^^^;:t^i:t:^:^:[:::; on the trade was evidently intended to bo mer Z subsidiary to the wiading up of the concern." ^ In the same case Mauh, J, expresses h,, ,,tiro concurrenco n tho decision of oL v. j v' aj" also ink,' he said, "for tho reasons ulread/,i>J ^atthiscaso is clearly distinguishable from ^O^n^ Body. What is there said by Lord 7) „», , what ho ,3 speaking about, lays do™, I thi,^k » ^ ana a reasonable rule. The „ai„ ol . ^f ' tL '"."l m that ease waa the earr.ing „„ an ^^^ ^ij^:^ for tho purpose of making moner to nav tl,„ ™"' w b „ , ,„ .ho'deed/ 'I^re^ " o"; r:: ..^.. While the argument was goin<^ on tbo rv.- r t . interposed „ith this observation: "Thtedt."" 3»;:*uig out t;uch trusts as are usually found in assignmerct. of fhia kind. The assign- ment contains a long list of debt.v, ^-hieh are to be paid in full before any divideml i;, j ;i d to other creditors. No objection has been taken o? account of these prefer- ence claims. But we have boon asked to hold the assign- ment invalid as against the plaintiffs in this action, on ivccount of the following provision at the end of the Judgment. "^^"'^ '' "^""^ *^^ ^''•'^ ^"'■^'^^ «^ ^he third part, (that is, the creditors executing the deed,) for the consideration aforesaid, do severally, for themselves and their respec- tive partners, release unto the said party of the first part (the a&.-'.gnor) all manner of action and actions, bonds, notes, bills, judgments, executions, and all other claims and demands whatsoever, from the beginning of tbft world to the day before the date hereof: provided always, that every such creditor as shall not come in and execute these presents within 30 days from the date thereof, shall not be entitled to any distribution or ad- vantage therefrom whatsoever; and in such case the proportion or proportions of the premises hereby assigned, which such creditor or creditors would have been entitled to receive if he had executed the same within the time aforesaid, shall be paid over to the said parties of the third part in proportion to their respective debts. " And it is lastly agreed, that wh v he said parties of the third part shall have received the whole of their respective debts, and all charges, commissions, and al!owanc< moneys, i and o-xj i the first J Now, 11 that can h is this a n creditors < gain a rig the real oi must exec that they i whatever i terms of tli expeotatior debts due t 22 Vic, ch cannot affe( assignment would seem law, Ranne did by this giving to so and that he notwithstan( his assignme ofi" creditorsj vation in hi no doubt, CO that statute, one or more be necessary the law is cor Janes y. Wh payment of d the effect of 10 (« ERROR AND APPEAL REPORTS. tho trst part, n,s executors or adminislratoia." ,.i Now, in the first plaee, independently of any tl,in^ ha can •« cted as authority bearing upon the ,L "nt creators «t Bmnei, to these eonditions before t ,cv en ga,„ a nght under the deed to sl.are in tl,o pro eei of the «a, or personal property assigned-first 'th . ty m« t exeeuto the deed within 30 days; ani seoondl/ that they must consent to aceopt in full of their dck whatever dmdend .nay fall to then,, aeeordin. to the ertns the deed ; and must, in eonsideration'o .1 expeotafons under the deed, release Banner from Z cannot affect th.s case, becanso it «s passed after tho as gnment was made. There are many cases rtch '""»»«• would seem to warrant ua in holding tb»t „! il'hyZTd'' '"'^'"' "' '"^'^^ ^» " - ^" d;d by th,s deed, notwithstanding it had the effect of g.nng .0 some of his creditors a preference over 1 rs .nd that he would have been equally at liberty to do 11' notwtthstanding the statute 13 Elizabeth, ch.troie h.. ass^gnment was not a fraudulent contrivance tol-ee! off credttors and made npon some secret trust reser! vatton m h,s own favour, (a) But although he m^^ no doubt, consistently under the common I„ a Jwitb ntrre'o'fT '™f ™' "'' P«Perty"di::c'ti;' one or more of his creditors, or as much of it as J.Z be necessary for payment of his or the r do . y"' J««v. TO.««ai, an assignment to trustee, ttZ payment of debt, wonid notle legal, andll'„rb: th» effect of tyrng up w, property so as to prote^ il 73 i ^ f 1 '■ ll S ! 1 ' .v-:'v* ' J .:a 4m 'm ;'.?? fit ' (t/t 76 IR62. Bnnk of Toronto T. Kcdei. Judgment. ERROR AND APPEAT. BEPORTS. So also, if what ho was surrender,.*^ ^uu of saiull value in proportion to his debts, and u Jio w^ro li. own to be in possession of a large income (1 M-ned from official sources, or from funds abroad, it wouUi have been a fraud upon his creditors to endeavour to place beyond the reach of execution his tangible property, and to deprive thm nf: the same time of all claim to be paid a divl'L-na out of his property assigned, unless they would release him from the debt in co'isideration of what they might receive from the trustees. A. might be indebted to B. in ^eGO, and to others i» X1,000, and might have only ^500 worth of property in this country which an execution could reach, but a large income derived from other sources. If he she ild endeavour to place his property out of the reach of B. by assigning it to trustees, on the condition that no creditor should be paid anything who should not consent to discharge hira in full, I think a jury might fairly be told that such a deed was a fraud upon creditors, and void under the statute. But fraud is not to be presumed, and we are not at liberty to act upon the mere surmise that Eanney might have owned real estate which ho had not conveyed, or other considerable means of paying his debts, besides the property which he had placed in the hands of the us- tees. The reasonable inference fi a whai, appears, and in the absence of any evidence leading to a contrary conclusion, is, that he gave up all his tno-^s of satisfying his creditors. _ Still it is to be considered that an assignment of thJ!? kind, voluntarily made to assignees selected ^erhap" wholly by himself, might afford a very uncert • ,. [ unsatisfactory provision for the due application (, all L, . assets to the satisfaction of his debts, and that a creditor might very ,turally and reasonably object to being a party to tho assignment, iC he must rest his hope of being satisfied entirely upon the contingency of t^o debtor honestly giving up all his effects" and of the trustees diligently realizing and faithfully applying ERROR AND APPKAL REPORTS. 7T them ; and it seems "hard that he should be deprived of 1868 ay benefit under the deed, unless at the same time he --!^ 'illZh ""V'T «^'--g -- than th deed ^^S^ tha r " '^' °'^'' '''^"^ '* ^^ '' ^^ «°n«idered «oL.. hat few If any, persons would make an assignment for the benefit of their creditors, if the exactinfT release would necessarily invalidate if f..r fhl woiilrl Kn ♦!, */ "vmiuaio It, lor the consequence Trtinn f ?.'' 7 ^'""'"'^^^ ^°"'^ ^« ^"^trated by a port on of the creditors refusing to come into the assign! the! ',/"'>" *'"'' remedy by execution agn'st the goods, for tins would wholly defeat the object I che debtor, and of those creditors who had been content to rely upon receiving their fair dividend. This, no doubt, has led to the general introduction of a release clause into assignments of this nature and of its ^ to crated, ., it appears to have been by the courts that IS, I mean, U ated . Lore there is nofhing in the circumstances of a ^., ticular case to make that a'n unjus or unreasonable conrj.on, which has been generZ •^-^«-'- tion had been generally alio \ and that assignments have not been held invalid on a count of it, I aS to the correctness of the view taken in the judgment of Mr. Justice JSagarty, deUvered in this casell mean a qSsIiln. ''''' '^ *^' ^°^^'^ '"*^°"*^^' "P^'^ '^^ 0.1W r'^ ''''/" ""^'^ " ^'''''''' ''''^' t° l^^ve been called for upon th.s exception to the assignment contain- ing a clause of release is that cited in the judgment below, of the King v. Watson, (a) and there 'the'cour entered ,nto no discussion of the exception, but in general terms said-the assignment (by which we must suppose them to mean, such as it was) - was a very com- mon arrangement, which it would be very iniurio s to disturb." The do ' !,.) 37 U. C. Q. ii. K. 183. EEKOK AND iPPEn KEPOItls. BoKNS, J._The case of Burritt v n^l .< governed by the new ,«„te 22 v" eat 6 1 T vi!^ the previous oases of Kerr v. Wilmn(T.nf\?T ^^ !: '^W% were n,enUoned b~f' rslf""''™ ''T- dispose of the question „!,!, ■' sufficient to M». debtor by the e ed or, b^ '7'°', •" " "'""""^ "^ *» madefor'thebe„:fl re;e : "t;: "" '"'■^''™"' -, upon .bis appeal. tt;ido\tTr::i::Ti;T s™f hrifrif f "' ""' ^' -" "^- *s V", ic was not necessary to decidp th^ »^,. • question— that is th^ nnJ,,* • P^^*^'^® t},« =.1 • ' P°'"* ^^3 not in either of them the sole question upon which the case turned rev ewed, there is also the case oUlcDonahl v P / decided in the Court of Chancery ^ .Th'other tf"' where n he held tli..<- fi.^ •• "^ . -^ "'^'^'^"Gr ^s Pennsylvania, and the deed of 1 ''""'' ^'''''''''f preferenee to any particular l, V, °r™' «"™ "» all rateably who sbS ^i „? trtl'".!^"''"' '" general release of all demands.^Tbo" J :T'' ! uju^^ous^^d^oso judges who gave the deei:io; did 81 'ft n (*J 2 Binnejr, m, VOL. II. 82 ERROR AND APPEAL REPORTS. 1862. so on the particukr facts of the case, and remarking ""^^^ that there were many and strong objections to deeds of Toronto assignment made Avithout the privity of creditors, and Eccie.. excluding all wlio do not execute releases. After the execution of the deed in that case, the greater body of creditors met, and accepted of the assignment before the writ of execution of one of the creditors came into the hands of the sheriff. The deed was upheld. In 1818, in the Circuit Court of the United States, embracing the state of Pennsylvania with New Jersey, I find .Judge Wasliinyton deciding the question in favour of the assignment, [a) There the deed of assignment pro- vided for payment rateably to all those who should execute a vclcise within a specified period, giving them of course a preference; and of course those who did not release would be loft to obtain what they could from the insolvent, if he had any thing. In 1833 a case of Brashear v. West, (b) was brought upon appeal to the Supreme Court of the United States, and the judginont of the court was given by Chief Justice Marshall. In this case the deed provided for a preference to particular creditors, who were to be paid in full before others shared in the estate, and all creditors who did not execute a release within a certain time were to be excluded all benefit. The deed was executed in Pennsylvania, and it seems had not been questioned in that state, but was questioned in another state. The court upheld the valility of the assignment, upon the ground that as the courts of Pennsylvania had so decided in the two cases I have quoted, those decisions must be received in the courts of the United States, and be acted upon. Thus I find the courts of the state (.f Pennsylvania and the Supreme Court of the United States upholding the law of that state to be, that a deed of assignment will bo upheld where made for giving preferences to Judgment. (o) Pioroont v. Graham, i Wash. 232, (b) 7 Pet. 608. those ( and he for dij The CI debtor of his say in ( the one siderati compels may dis order ai Turni of the s enunciat that lea\ mately p in 1817, to satisfy proportio of their ri in 1821, i conveying satisfy de was a pro to. He condition I rather a In 1823 tl that a de creditors a being paid under the in the leasi has a right deed which (a) 14 Jc (c) 20 Jo n !,£.■' ERROR'AKD APPEAL REPORTS. 88 ana noid.ng that to be so even thou;,.!, tl,o docl provides ^— v-^ for discharging the demand, in unoa.,..l '^'7"^'' ^ii^ The Cnforinn ^P *1 1-,. ""(^qu.ll proportions. Toronto may depose of it i„ satisfaction of his d bts i^lnv order and npon any terras ho thinks prorcr ^ en«noia.od, hat stij ^:t^ ::t^:^:T:zz that eaves the mind free fro,n douht as .0 „l,at IZ Z mately prevail oven in that state. The Snprerae Co t to sa ,sfy „ „„ji.„ j^^,_ ^^j ^,__^^ ^^ ma< proporfonably on eondition of their execuUng release 0^>he.rrespee.,ve demands, wasvoid. Cha„e..n„rT„t m 18.1, ,„ Seamng v. BrinlurUff, ih) hehl tl,ata deed conveymg a portion of the debtor's properlv onlv to »at,sfy debts and eontaining a release to' he d C wasaprov,s.o„ the creditor «s not honndtos baj to. He satd, "A partial assignment upon such a oondmon ,s pernicious in its tenSeney, if it be no as I rather app„hend it to he, fraudulent in its dest" In .8.3 the Supreme Court, in Amtin v. Bell, MUM .ba a deed providing for the shares of sucL of the crcduors as refused to sign a release of their demands bemg paid over by the trustee to the debtor, was void under he Statute of Frauds. The court say , ° tho^ .n the least nnpugning the doctrine that a n™ "^0^ has a r,ght .0 g,ve a preference to creditors, yet "ha deed^ehfe^^joMa^^ property *. ho" (a) 14 John. 458. (c) 20 John. 442. (A) John. C. C. 329. 84 ERROR AND APPEAL REPORTS. 1862. payment of his creditors, but reserves a portion of it to "-^^ himself, unless the creditors assent to such terms as he Toronto ghall prescribe, is in law fraudulent and void as against Ecoie,. the Statute of Frauds, being made with intent to delay, hinder, or defraud creditors of their just and legal actions. In 1833 the Court of Errors in Grover v. Wukeman,{a) upon appeal from Chanccller Walworth, affirming his judgment, held that an assignment containing a provision giving a preference to certain creditors in the distribution of the property, to depend upon the execution by them of a release to the debtor of all claims against him, was void. Tlio court consisted of no less than twenty mem- bers, and were diviacd in opinion, five holding that the deed was not void in consequence of such a stipulation. The deed provided for the payment in full of certain preferred creditors, and for the second class who should within a certain time agree in writing under seal to Judgment ''^''^'''^ "'''^' proportion of their debts respectively as • could be paid by the avails then remaining in the hands of the trustees, in full discharge of their respective claims, to be apportioned according to their respective debts. In 1844 the Supreme Court, in aoodrichv. Down8,{b) speaking of Grover v. Wakeman, says: "Until the Court of Errors is prepared to retrace its steps, this question must be regarded ag finally settled." Chan- cellor Kerit, in the 6th edition of his Commentaries, published in 1848, (vol. 2, p. 536,) in the note, says of Grover v. Wakeman, this appears to be the most stern decision that exists either in England or this country on this subject." He adds his own opinion as the result of his investigation, thus : " The weight of general authority, both English and American, is, that an assignment by a debtor of all his property for the payment of his debts, and at the same time giving preferences, and requiring (a) 11 Wend. 187. (b) 6 Hil. N. Y. 441. an al not p the d wit ho plus, in an( is dee unfair The nectici the de( held, t] and th residue ments the pai dividen( &c., dis( hereby ( entitled until he lent and In the Story, in a deed of Salsey v. the autho time, and ** The de( question i gives his ( is then in New York the naked rated into n^tnei^'^-^ — -, if any, to those oredi.orrif 1 hfZ'n ^ "" ""' m and aeree to rpl^oc^ . i • •'^' "° "°*^ ^o^e The Supreme Court of Lrrors if t),« 0. . , „ nectiri , ;„ 1001- r . "™ ^' ">8 t>late of Con- nectici,,, in 1820, Ingraliam v. CTm/,, /•„! f„i, , the dec s on of 77w„„ „ n , , ' <"' flowed held, that a led fo II! T^ '"''" ""'''• ^-I ana then providil;°asT. fws" w.^rtl;!"" '"l '"'!; residue of said profeeds, if an; ihere b afer 2 "^ ments aforesaid, sl,„l| be annll,l I T P^^" ae payment in who „ „r fpl ^Z:;! "T'?"™ '° dividends of ,1! other of the L, ."'"'"^ "»'' ^c.,diseharge their::;:;; ■:trde::r'::t"' etL^-rsctrd "fi °" -"-""V:.._ a deed of a similar eharae.er «s upheld inAee.'^'''^ question in emdlihrm " tt ^'^eretoie, leave the 1 tqumono. Hq sums up tl't whn1.. „., i g^ves Ins own opinion thus : " The woi j r of , U v ;s then in favour of the stipulation ^ ^ -'r^^ New York, (that was up to IS^n \ ^"l ' '" the naked pLt of a reC, ^^ZT^::'"'' tr±f.^::^^-"^^'^y new, and manj estates had nol m 86 ERROR AND APPEAL REPORTS. 1863. passed upon the faith of such assignments, the strong inclination of my mind would be against the validity of them. As it is, I yield with reluctance to what seems the tone of authority in favour of them." Mr. Justice Story reiterates his view as to the tone and weight of authority upon this point in his " Commentaries upon Equity Jurisprudence," so widely circulated, and so justly celebrated both in England and America. Many other cases before courts in other States of America, might be added to those I have mentioned, some taking one view, and others a different view ; but I deem it quite sufficient to notice those of the four States mentioned only, and two of these particularly on account of the eminent jurists who have considered the question. In JacJc307i V. Lomas, (a) the deed of trust, made for the benefit bf creditors, contained a clause of release by the creditors to the assignor, with a proviso that in case any of the creditors should not execute the deed on or before the 26th July then next, the assignor should receive from the trustees the shares of those creditors, and that no creditor should be entitled to the benefit of the trust deed who did not sign before that day. The plaintiff did not sign until the 31st July, and he refused to sign until the assignor had agreed to make good the deficiency. And it was upon tliis agree- ment he sued the assignor. The court held this agree- ment fraudulent as respects the other credi<:or3 ; but not a word was urged against the validity of the trust deed. It seems to have been taken for granted that the trust deed was valid. If it had been void on the ground of imposing terms which the creditor was not bound to submit to, there would have been nothing in the way of the plaintiff sustaining his action upon the original debt, for there was a count in the declaration to that effect. In 27ie very pc the dee certainl which I: creditor adds, " would b( no comi had the Richardi The Kh ought no attemptei such atte: The Km not consi( creditor a case of 1 the case bi stock for convey cei stock in tr up, and th^ agreement ors should there shoul necessary e conveyance execute, be release fron the original he held th for want of the creditors had been ap what they w (o) 4 T. R. ICO, (1791.) ERROR AND APPEAL REPORTS. Bank of Toronto T. Eccle*. the deed ; but the court !fP> ' '"* " °'™"'' '"> which has been made for ,L , ? ° "»'«nment, -editor, ^™«:f J:. ':, r 're'r"'"Tt "" "■' adds, "This is a very comm™ ^'^ """'•» —a he ver, iniurijj tor.: b rnrj :'"f -■' no commission." The case of 'P , ? , ' '""' Ha... then Just r.^.n^/Z:' ^f'j, t*^ JiiArf., remarking upon that ™,„ ,. "'°" ought not to be avoidable l^ an. , tiCl tt T ™'^ attempted to be excluded from iLZ fl 'ofTt 7°' such attempt has been mn^ln • 1 "^""^ ^* '<^ 5 and no not consider the release clauL .ll '"'^'"'^^ '^''^ creditor as to iustifv }L / ' ''''''"'' "P«" the case of r. jrfiYf Tr/r^''"^ ^^^ the case before us. There cerTain f, 1^ '''"^ "P'^^ t stock for the benefit of redio^r ''"*"" ^'^ ^'^^'^ "^^^ convey certain real estate fo,/' '"^ '-"'''•^ ^^^° ^^^ stock in trade was dispot/ tuh"?"-'"^' ^'^ «P, and the creditors realized 10s nj'?"" "T ^ agreement contained a provision th^ ^ ^"T^' ^^' ors should be called upon to c n vev - '^'' ''''^'" there should be inserted in he ^ ^U^^' '''^'V'^' necessary clauses and ..n^.vL;"^vl f [, l^f -^ conveyance was tendered thp rl«r , °'' ^'^^ ^^ed of execute, because the de d did tr "'' '""'''''^ '' release from the creditors I ? • ''^'" ^ general the original debt A Z'. "it ^.''"''^' '^^"^ «»«d for ^^ehefdthatiitr:;;.^^^^^^^^^^^ for want of the release wn« ,. """Jf^^on to convey .he creditors had ZZ r^:^ iT, '' -'"^. °' had been appointed for all thn 7 ? . ' "" '"^''*'"S What they would do aT; "he . I "r "' *« determine -■-^^anuthe p]a,nt,fi, i^^j commenced («>8Prioe, 6, (isig,) 87 ' i 88 ERROR AND APPEAL REPORTS. 18H2. Bank of Toronto T. Kcolei. Judgment their action before that meeting was held, the Chief ' Justice held the action was premature, and the plaintiffs were nonsuited. The court, upon an application for a new trial, upheld the ground that the action wag prema- ture. Sir iV. Tindal, who had been made Chief Justice of the Common Pleas in the meantime, says : " I do not say that an absolute refusal to execute the conveyance as it stood might not have remitted the creditors to their rights ; but in the present case it is only necessary to observe that there is no evidence of a sufficient tender of any release." The deed signed by some of the creditors which had been tendered, did contain a release of some kind ; but the defendants considered it insufficient. It is evident, I think, that Sir N. Tindal considered the defendants were entitled to some kind of release, for if they wore not there was no use of putting the judgment upon the ground that there was no sufficient evidence of any release, merely because some of the creditors had not signed it. And so with the judgment of the court in holding the plaintiffs were premature in bringing their action. In Small v. Martvood, (a) the defendant, a bankrupt, had assigned his goods for the benefit of creditors to four trustees also creditors, and the deed contained a clause of release ; and provided that the trustees and creditors should on or before the 1st February, then next, make proof of debts if required, and execute that indenture. A covenant followed that the creditors would not sue, and if any did tlie deed might he pleaded as a release. The deed was executed by two only of the four trustees, and because of that, one of the executing trustees considered the deed void, and sued out a com- mission of bankruptcy. The question before the court was, whether the deed was void, and whether the debt due to the trustee was a valid subsisting debt, sufficient to constitute a good petitioning creditor's debt. Bailey, J,, delivered the judgment of the court, and it was held (a) 9 B. & C. 300. (1829.) that t1 the de debt i wheth( due to unless considt inoperj all that fit to t assignn debt wa oommisi In th Coatea \ the claui made to deeds; £ Bidered t point wo for grant that poii scarcely i views en especially there as s Some c might be i an equal d ors ; and ii an unequal therefore si were propi claiming a the exclusii the assignn that it was 12 Bank of Torooto V, Eocltf. ERROR ASD APPEAL KEP0M3. 5lt^a r^i''^^ :2tf rii'r'--^*" inoperative on that ground. Barr & 1T\ °* all that the deed stipulated to Z thf^lf :, ''^^ ^ fit to take it. The release i, 11 ,' °^ ^^'""^ assignment; and it is t erefo - ^ consideration of the o , <*«m It js meretore an operativp don,} t^k^ debt was thereby extinguished, and it fol ows it 1 commission cannot bo supported." ^ In the more recent cases of Jaties v Whia^ ^ j Coates V. Williams, tho deeds of n ; ^^^f''< ^"^ " the clauses of relea e to the th/ "f^nment contained views entertained upon this ,i<,e „f ttHtl , especially as Mr. Justice Stov'/work, l '^' there as standards. " "^ "" ^'"'^P'^d Some of the cases cited, and many others whi.I, m,ght be mentioned, were cases of traders proWdinc f .n equal distribution of their effects among'^l cir crj, ors ; and it may be said the case before us p deslor' an unequal distribution among Banne,,: J^ZT I thereforestandsuponadifferenlfoothg:* y^'" !;," were propounded for the first timei hat s ?7. ^ daiming a release of debts due byhim or p/ovMinlt; the exclusion .. I g.ioh —ri-'f-- - - i'"^*^^"'"g tor ,, • ^-^^aitura as rolused to accpn*- <^f the assignment upon those terms T fh.Vi t i, ,! , th.titwasastipltionsorfrrhe:r„ft VOL. II. 89 I ( v J 90 ERROR AND APPHAL REPORTS. 1802. Dank of TordDto V. £cclcF. ^ debtor that would render tho deed void under the ' Statute of Frauds; but when I see that in cases of traders the courts in England constantly uphol.l these assign- ments, containing releases by tho creditors, whereon the deed itself is not avoided, on tho ground of tae deed itself being an act of bankruptcy: and when I sto that in cases of persons not traders, the courts con&tuatly say that a person may select any class of creditors, or any particular creditors, and pay them to tho exclusion of all others, and that the only question is, whether the debtor has honestly given up his property to hi.s creditor?, then I am forced to the conclusion that the tone of authority is that the provision for a release being given on the one side, is the consideration for suurrcndering tho j.rc.poity by the debtor upon the other side. If the transfer of the property can bo held to be done for a legal consideration, then, of course, tho case fall within the Statute of FriaJji, iloos not , Judgment. Pi ■• There is a provision iu thi* desd before us not common in these assignments, and ihaj is, in case any of the parties of the third part do not, within the time specified, come in and execute the deed, then tho shares which such creditors would have received shall be paid over to those creditors who do execute the deci.]. At the time the deed in this case was made, the law of Upper Canada remained the same as it was when Ta>/lo)- V. Whittemore was decided, persons who were traders, and those who were not traders being upon the same footing, and also leaving a debtor the power of saying in what order he would pay his creditors with his property. No doubt it is true that very many deeds of a similar character to the present have been executed and acted upon, and much real and personal property have changed hands under them, and I should say under the idea of the profession generally, there was no fraud apparent upon iho face of such deeds. Perhaps it was unfortunate that the point has been suggested, and that opinions given ; ;i to aettle tions. I thin Sprag agree, g( point i.ri It is o law stoor righ , alt more cre( vene the delaying Wliat has prci 'renc judge, lar be divide imposing share tht;-. It is adi deed is vc unreasonal after the p delayi -^g o: It is no trustees al creditors, t shall grant Bankruptcy the assets I it may still spirit of th must depeni carried. T l!»»OIl ASS Annt REPORTS. tions. ^ " P"**' transac- Toronto Eoclai, I think, therefore, the judgo^ont shoul.l bo alli.nied. Spragqe, V. c ATtr K,., *u TT agree, genekl,,, f^ o^Vjr^rto^rV.r^'' '""^t' point principally in question. ^'' "^^'" '^' It is of course conceded that the debtor h.n law stood at tl.o time this assirr.nnpnV ' •'' ^"' rigl^ although he was inlolt^f^^rZir:' ''^ more creditors to others Hla ,il- ^ ,.''f'"'^ one or ve»e .ho =.„„.„ Of 'SLbf'rr: I,;:-; ""■■'■■''■ do «,ing his creditors wi.hin .he ^oani :'„ .' " il'i;.^ Wln,t has ben, done by this assignment ■ °"°""'=• ^>•.■ ■.enco to creditors, larEoin numb!, „ /,'"■ " j« >IPPLIED^ IIVMC.E . Inc .^g 1653 East Main Street .^sr ^ Rochester, NY 14609 USA .aar-^ Phone: 716/482-0300 ■^^■—^ Fax: 716/288-5989 © 1993, Applied Image, Inc., All Rights Reserved « |\ ^\' <^ ' \ %^ 92 ERROR AND APPEAL REPORTS. J862^ reasonable and right, and does in bankruptcy prefer ^;;^ certain creditors; and if the like preferences are given Toronto ,n a Voluntary assignment, there is no reason, that I can *«='«• see, why tliey should be held to invalidate the deed; for that which is in accordance with the policy of one statute cannot be said to be a fraud under another ; and It may probably not be necessary that the preferences snould bo precisely the same as obtained in bankruptcy, if they are substantially in the same spirit. So far the court would have something tangible to go upon, in holding such assignments not avoided by the Statute of Elizabeth. But when an insolvent discards altogether that which is recognised as just and equitable m bankruptcy, and chooses to substitute his own caprice, or to consult his own personal or family advantage, and to postpone to these considerations the just rights of creditors, he places himself, it seems to me, out of the judgment. P'°*';f «" ^^ ^ho principle upon which assignments are upheld, which provide for a rateable distribution wholly, or with such preferences substantially as obtain in bank- ruptcy. It must surely bo competent to the court to draw the Ime somewhere ; otherwise the court must feel bound to uphold whatever disposition an insolvent may make of his estate by assignment, however unreasonable or unjust. If the insolvent does not stipulate for a formal release to himself, the creditor is in a very different position, because, with the debtor's right to prefer one creditor over another, he might be content to como in although the preferences might be unreasonable, because he might get something under the assignment; and at all events-his position as to his debtor otherwise would not be prejudiced, but with a clause of release his posi- tion IS very different. He may get something, or he may get nothing, for all may be absorbed by the unreasonable preferences given, and it is generally impossible to tell before hand how the estate may turn HBROIl AND ipPEAi, BBPORTS. there were no Bankruptcy Law in Fn!i ^'';^°™'"*- ^^ be doubted, I think JhZ ^"S'and, it may well not be held to Wr 1 ^ ' T^ ^''^''''''' ''' ^» ^ouU clause offelasej^r^ f .? '^^^ -->-nt, with a in Canada tl ;s^ i^ 'as r' f ^-f'^ ??^'^^^ principles of English law Pn^ TT , [^ '^''^''^ '^' in question trarfsg^l^^hosr^r „':1:1;:^^^^^^^^^ ^""'"*- and in soirit nnl *« i , ^^"''''P'^s in substance to .ho s!:xii:f:'"' "■"' "■'^™ " -^ ^m balion of his estate !,„ „rri 7 "'l """«' "jmt distri- "ill be promoted and ;, , '° '" f"™". toposodVn .t gvinglTlS:'"'/''"' "'" '^ preferences: whereas if v • """^ "nreasonablo V.H whether ritibr'fri" "'" "^ ''»■'' estate be just or ulst tea. r ^^^^ '»'«'<' «f h« for a release to h.Je [ astt' i^:; "^ "?»■»«"« the assignment, a pow'erf„r.oZ f LT'i' '" """^ Msignment will be taken awav" T , , . "^ " J"" «•« pono. Of the c;;rt firttersn:: 93 'I I m -' ^ ^'^'4H 1 -^-^a^^^^Bj^^^B ^'^I^^^H 94 1862. Bank of Toronto V. Ecoles. ERROR AND APPEAL REPORTS. fraudulent preferences, passed since the assignment in question was made. I do not think that tlio question is concluded by the authorities. Thty show, indeed, that a stipulation for a release does not ^ur so invalidate an assignment by ac, insolvent, for the benefit of his creditors ; but I think they do not shew that an assignment containing such stipulation, and giving unjust and unreasonable prefer- ences, will bo sustained. In the case of Itex. v. Watson, referred to by my brother Ilagarty, in his learned and elaborate judgment in tho court below, as the only express decision in England that he had seen, there were no preferred Jodgtnent. creditors, and tho circumstance is made a ground for sustaining the assignment. The language of the court is, " There is certainly no fraud in this case affeoiing the assignment, which has been made for the equal benefit of all tho creditors." " This is a very common arrangement, which it would be very injurious to disturb, when there has been no commission [of bankruptcy."] Richards and IlAttARiY, JJ., concurred in tne views expressed by his lordship the Chief Justice. Per Cwr.— Appeal dismissed with costs. [Eaten and Spragge. V. CO., dissenting.] ! , ■' T ERROR AND APPEAL REPORTS. [^vi,l, „,„ i„„„, the do.cri„,io„ of I,! J ■".I""'"!"-', ".V (,h,t i, «« tho Je"so, t Z"' °"''' '' ''"'• '» "PP'^ Act, (ch. 2nd of tho f!„„ «, . f ^ In'orprotation the en.o.„,„. i„ '° ^™-f »'-.) « -o of „p,„i„„ .,,.j "e-eg.. and e^oiS" .„ l'^;:'":-,'^" ->» of .«..». redemption of tho mortca^or LT' T '" "1""^ "^ 'gainst him and on Z " J"''s"«iit recovered tenement, ThroChout'Z""? °f '"" '"' '-<>' -^ reference i, made 1° e e^t a 1 ? "'f " ""^ eonsequeneo whieh under narhlh! ' °°^ '" "» follow, tho mortgagor aionor;: ' ' "T"""" ""^ P0«3ibi,ity that hlltorttld ^rt/'T' !"' -ay have been oonveycd by him ,„ f ,j 7''™''"™ "ever apparently contemplated tld f P"'^' '' to show that the obieot of th„' ? ^^ '° ^" »' '™t ' '^"Itiea of redemrS to a,e utdra"' '° '""•*"' •«e"tion, excepting i„ the and" „f .h!°"""°" '" "pon whose mortgaso thev ,vJ; . ""ortgagor •gainst him. Tho act d«.? ""'' "P™ " J"''s'»<"« e<.«i.y of redemption" ftlelTlT* ""' "■" :"r:r-"inr:toV"S=^-^^^^^^^ -a.otio„on.spo:™;;-d:t:7;:f~t: If; J„^3^ 102 ERROR AND APPEAL REPORTS. B4Bll 1862. 8uoh an action k maintninablo. It docs not seem to ^fu!o. ^''^"'cmplato tlio very possible case that tlio assignee by Bfaufh. P"''^''>"SO from the original mortgagor of the equity of redemption might afterwards mortgnge that equity for his own debt, and might have a judgment recovered against him on which an execution against his lands and tonemi'nts might bo issued; he would have an equitable right to redeem arising out of his own mort- gage, and the rights of the first mortgagor would also be vested in him; and yet to hold that the last created equity of redemption could bo sold on a fieri faciat, would bo more like a supplementary enactment than a construction of the act in its present shape. We think it safer and more consistent with the intention of the legislature, to limit tho operation of the statute to the case which its language plainly defines, namely, the legal and equitable estate, right, title, interest and property and equity of redemption of a mortgagor, Judgmtnt. on a writ of execution issued against his lands and tenements. The present bill is founded on an equity assumed to arise from the fact that the equity of redemption originally vested In the plaintiff as mort- gagor of certain lands (of which he had been previously seised In fee simple) was sold and assigned by him ; and that by virtue of a sale by the sheriff, on an execution against a subsequent assignee, the equity of redemption became vested in the defendants. We do not adopt this latter view of tho effect of the sheriff's sale and con- veyance to tho Bank of Upper Canada. Without the aid of some statutory enactment it is clear that this equity could not be the subject of a common law execu- tion, and we are of opinion the statute does not extend to a case like tlie present, where tho judgment and execution on which the sale took place are not against the original mortgagor. This is the judgment of all the judges who heard the case argued, except my brother JEsten, who, I believe, adheres to the opinion expressed in the court below. ■RHOll AND APPEAL REPORTS. |(^g BMkofC.O. ..!d;S-"'° •■"•»"-" -y"' '» ""•. decree "^ top»y .he dobe .„d .LJrusCit!; %"°™'i^' »cev.ry, .„d .„ H.,„ ^7;;', ° ^ '"S »; »" "'»"> in Ike 2nd. That the relation of nrineir,™) »„,i net been eons.i.u.ed bo.„on'^ "o fla ■ ,/°"'^ ''" entitle the supposed surely ,„ .I i^. ^ f° "' '» ..eereo affords hi. against .,L:p;Xtrp:;:'''''° whir a stttreaLv::,::'.:,":: ': --^' '^^ that remedy and that alon^ ca /;:::' J IT'"^' eases were cited in support of tS ' '""^ correctness of which a, » g eral r lo ?7°""°" "" I think, however it is ^JfZT, '^ '"' """^'M- The prepo,i.io::i"a;u:;;*f r: i:,,;:^ -' ir HghtLprescfibrn^^ared; hTcrrfci::^* will administer the equity of eomnellinr ^''T"' Vriori on a bill ^^aJ^Modlte .??,"''"' " ..ve the surety fro™ „ suit. ^^"^\ .^ , '"'■•''' ""d pnncipal and surety, the legal romojyof ,t "r""" ""^ to sue both or one, and if he su t ,eVu o.v h? ? " must sue the nrinpm«i p • I ^ ^® "* turn things, buttefd rtrprev^r' frcut' "" ,""'' "^ of actions, and in order to rljl^ » "ulfpncity danger of indeSnite dullf ; , terX'a"'"" " tkepmoipalbyecpciangii^m ., P^rdel.Ttr Jod^OMBt i I ^ i yw 104 ERROR AND APPEAL REPORTS. J863^ creditor; and I apprehend if a court of equity found* BwiT™.*^® ^^™® state of things, although arising under a BroV f*^*"te, creating a new right and prescribing a remedy, it would administer the same relief. Thus, if the statute imposing the composition in lieu of statute duty, had provided that the composition should be paid by one of two parties, but if paid by one he should be indemnified by the other ; I have no doubt a court of equity would compel the latter at the suit of the former to pay the composition, and save him harmless ; and although the act giving a remedy by dis- tress and therefore prohibiting an action might be thought also to prohibit a similar equity, yet I should think otherwise, and that even in this case the court would entertain the suit of the party entitled to indem- nity to compel the other party to pay the composition and save his goods from being distrained ; and of course the objection would not apply to a case where it was Judgment, provided that an action might be maintained as in the present instance. It was then urged that if the mort- gagor paid the debt and brought an action for its recovery, defences might exist to such an action by way of set-off or otherwise. This objection, I think, is much more untenable than the former. There is no possible defence that could be made at law to such an action that would not be equally available in equity to a bill quia timet. Nay, a court of equity would probably allow many defences which a court of law could not recognise. Equity recognises and gives effect to every legal set-off, and to many that are not legal but merely equitable. If the surety should owe a debt to the principal, he could not compel him to pay a debt for which he was surety and exonerate him without first paying his own debt. I am satisfied that there is no possible defence which could be raised to an action by the mortgagor which would not be equally available as a defence to a bill quia timet for payment of the mort- gage and the exoneration of the mortgagor, and proba- bly many other defences would be open to him upon such a In fact lie couh any pur and the not feel probablj made up without ; more wei ever verj relation between Antrobui suit was 1 far as hi regards t hj one pa agent, for who in h pal. But case, and were the to the def of their sui nae to arise Victoria, c and, 2nd, and surety purchaser a appellants ( equities of Such an ar^ title, for in was void. ' free from d himself pur( 14 ERROR AND APPEAL REPORTS. 105 not feel ™„eh p„s,e,l by U i/ar . ,„e„t T, '? probably oo„:,l „ot be i„„i,„,„„ „„,i7 X,^,, f ' , """ »aflo upon the purchaser, „„,! ,l,h-,y ™ 1, ,^ ." relation of principal and surely was ^ ; ^- ^ between these panios. For h^ loj ,?"'"""«' Antrolu, v. i)„„c« („) was ed T'.h ° '""° f Buit was not ly .he surety but a'^t hi ,, :" '■''° far as his im„odiale eon.raot « con led "i ™ regard, the genera, transaction, it wrsTlrc' d r "' bj ono party with another through The Jr .« agent, for whose acts ho was J:tt:;^:\Z who m his turn was bound to indemnifv ,h7 ™'°"' were' ."ht frni; a en it"l':,r„:fo?™'^*' '''° Tf tS^rtrii™ r --^ and, Jnd, if it does, whether the rekh'nn nf • • ,' and surety is constituted ieJnZtZ J'Zt purchaser at sheriff's ail^ Tu^ i •. ° *= ^"® appellants did no a" thaT he'et "r"?' '^ ""^ equities of rede„ptioi Lt haL" f 7 'rorltr Such an argument would have been fatal toWs Si: frer„a!:;nrihrif"r^-:*°"-°^" ^^..If purchase h^e is al^Ld'tf^i^rSVr^f ^ 1 ! , 14 (a) 3 Mer. 669. VOL. ir. 106 1862. ERROR AND^APPEAL REPORTS. debt which could not be done to an assignee of the j,;;^^^^^ equity of redemption. Perhaps a more important diffi Brongb. ^"^*y >•''' t^«^<^ ^7 tbo terms of the assignment the mortgagor may be bound to pay the mortgage debt. Such transactions are not unfrequent. In such a case if he did pay the debt it would not bo just that it should be re-paid. Under such circustances, however, it is not an equity of redemption which is transferred but the entire estate, tlio full value of which the assignee has no doubt paid to the mortgagor, who in his turn has undertaken to discharge the mortgage. I think, how- ever, tlicse difficulties may be overcome, and are out- weighed by the strong probability which exists that the legislature could not have intended to confine the act to cipcs in which the equity of redemption remained in the hands of the mortgagor, which would give the act a very limited operation, but must have meant it to extend to cases in which it had been alienated both to imme- Judgment. diatc and remote assignees. No injustice, as appears to me, could result from this construction. If the mortgagor have alienated the equity of redemption, and it were the intention of the parties that the pur- chaser should discharge the mortgage, then, if the equity of redemption be purchased at sheriff's sale, and the mortgagor afterwards be compelled to pay the debt, it is probably just that the purchaser should re-pay it. If, on the other hand, the mortgagor have undertaken to pay it, and have received the full value of the estate, or if any intermediate assignor have pursued this course, in which cases respectively the mortgagor or assignor -ill have covenanted to pay the mortgage debt; still it may be considered that the equity of redemption only passed, and may be offered for sale by the sheriff, and that the covenant for payment of the mortgage debt was collateral and to be enforced by the party entitled to the benefit of it against the party liable upon it, the purchaser at sheriff's sale meanwhile paying the mortgage debt, or re-paying it to the mort- gagor, if he shall have been compelled to pay it. ERROR AND APPEAL REPORTS. 107 TT ^ tion univo°'ai;;i'aat :t ™"T'' ^ " P™Po-- °"* « debt, he was 0, feio I , If' '^ """ P""^ P«M ted between the two parti, rt ^ { '"'' ™"'""- ': caned: L"::r:'di " '"'™""^ -^^ r;»pew; "ay be Jled tl J'„ ■ f """^ ""'^-^ '» '"''"mnify IqL.°o„tbet or rZ: 'r '"""■; "'^'"'^'^''' ^"' supposed Letv he ; "'. •""""" '""' ''»<' "» he i, „„ debtor 'af all. ' T,o Ic "e ir""' "l'° ''" «— debt, and zi::^: :'^^ t!^^ -^ "'° the securities • h..^ ;,. V ' ^° deliver up the creditor ™,ht deJl^Tdt^' rd":'; ""t "f wu^ h,„ and was not bound to rIceivM" = t^ .niat de rr VT '"^ '"■"=^"' '^ "-'' -" the p^rehrc'tbel": ::r 'r° '""" ''''-■" Tirif c»-> *i, , "Jorcgagee. Ihe mort.;r^;:;ijtnr^^^^^ 109 1862. ('M f;l ■!i 1 I ' '"ll 110 1862. ERROR AND APPEAL REPORTS. The Vice-chancellor, by the order complained of, did RaFmm.n/®^®^ ^^^ taxation baok to the master with certain oragi^ana directions, bearing principally upon the point whether the costs of taxation should, under the circumstances, be borne by Totten or by the solicitors. The costs of taxation had been allowed by the master at .£16 43. 3d. It ia objected on the part of the solicitors that this is not an appealable order. Th, -inds on which Totten objects to it apply to the propriety uf the directions given to the master respecting the costs of taxation, and the costs incidental to the reference. We think the proceedings in appeal must bo quashed under the 10th section of the Appeal Act, on the ground that this is not an appealable matter, there being no cause pending between the parties, in which the order complained of was made. It is true that the ninth section of the act gives an appeal " from all judgments, orders, and decrees of the Court of Chancery," but that has been already taken to mean judgments, orders and decrees— whether interlo- cutory or final in a cause. The fifty-fourth section of the act shews that to be the intention ; and the general principles which govern appeals in equity preclude an appeal from such an order as this, (a) Then, besides that, this is an order made upon petition and not in any suit upon a bill filed : the subject matter of the petition and order is such that an appeal does not properly lie against the decision of the court upon it which merely affects costs proper to be allowed by a taxing officer. No case has been cited in support of this appeal, and both principle and policy are against it. Judgment. Per Cwr.— Appeal dismissed with costs, (a) McQueen on Appeals, ch. 1. On Carpe; A defendi neglect facts a! ment «i An action iJ?fendn ■ecuiftj evidenc wards ii the juJ| the time Thebi ■Bank oj Oarpente the plain Bench a, and costs Wentworl certain la Id. had b( prayed pa The def that the ju( sory note r one McKi the circums the 21st M) had been ca and that 1 which they which notes that a large endorsed by by defendan as collateral paper, being one half of s in 1862. BRROE AND APPEAL HEPORTS. Carpenter v. The Commercial Bank oe CANAn. A defendant at law n?P»r?;„„ , "f payment. An act on at Inwhnvin^ k t. '"e juag- ■ecu, .ty for another debt, which L/l 1 *"^''" «» collateral Ih. juJgme,, .gain,,",,.;," f' ,™""«":V to c„f„ro, a^l^^JTr. th. plaintiff, reoo.sre ;;!;?„ Z^^ "' ^'7- 1859, Bench against the deinS™ , 'f^ ^S"o f-''"^"'' "d «o.ts, whieh wa, duly „. s.o ej 1 ^^ "'• '"''• Wentworth, in whici, the drf l ' """"'J" »' certain lands (settin.- them f„«M"'"r°, P°"''«^d of-w-t W. bad been 'paid o'n !:„"„'' 'l J' ' « ^^'^ "'• P^yed pa,„ent of the ^^...:l:-t^:^^ -^ sorynote made by the othnr A / T "^°"'*P''0'n'a- one M.K^n.r, 'nd'lt L trr/"'""^'' ^^ the creamstancos following: thTlT^ '' '"'^"' the 2ht March, 1857, was tnd L .«"•/""««'•, on bad heen carrying „„ Cn'c st:!!:;: ^"7'^ and that the bank held note, XseT " ?"'""'°"' Whjch they had disco„„,ed for hin, ° 1 ,!f '"'°' ""^ wb,ch notes so disconnted were nlTos f 1 ^'' '""°""'' bat a .arge portion tl.oreof i::d been L .Irr™"'' endorsed by other persons- amltu..i V notes by defendant was deliver' j T-.Tj'TT^'""'^'"'''^ li \ m 1 ■ 1 i -till ' 'it 1 ! mi fc 112 ERROR AND APPEAL REPORTS. 1862. thereof had since been paid : that the loss, if any, had "Jjljij;^ arisen in consequence of the bank neglecting to collect Com. Bank. ""'^ ^^^ ^" moncy due upon the other notes delivered to the bank in settlement cf the greater portion of such indebtedness. The cause had been heard upon a motion for decree. The affidavit of the managing agent of the bank was read on behalf of the motion setting forth that the defendant Bna7i Carpenter was not personally aware of the circumstances under which the note was given to and accepted by him ; that no such arrangement as alleged in the answer was made ; that the only payment on account thereof Wu.i the sura stated in the bill ; and that if any such defence had existed to the claim of the bank, the defendants had the opportunity of urging, and did by plea and at the trial of the action upon the note attempt to prove and urge, but without effect, all the Judgment supposcd defcuces set up by the answer. The defendants both made affidavits in opposition to the motion ; and an affidavit of McKinatry was also read, in which he swore that he endorsed the note for ^1,500 in consequence of the dissatisfaction expressed by the bank at the supposed lapse of a guarantee given for the amount of Carpenter's discount whilst 3IcKin8try had been manager of the bank ; and that there never was any intention that the said note for .£1500 should be held for any other purpose than the protection of the balance of the customers' paper. Upon the hearing, the court below directed that "it should be referred to the master of this court at Hamilton, to enquire and report whether the note on which the plaintiffs' judgment in the pleadings mentioned was recovered, was held by the plaintiffs as a collateral security merely, then, if so, for what ; and if the said master shall find that such note was held by the plaintiffs as collateral security for the payment of any other promis- sory nol ment of report \ the sura credited notes up( such jud exchange as collat( notes wei defendant the action recovered that enoug credited in said judgn further enq either of t lands, tene or interest! Wentworth, plaintiffs' bi other than t incumbrance shall find a; Served with court in that of what is dt brancer or i interest, and to settle their the considerat of this suit, ai said master sh Prom this appealed, assif and by the sai 15 ERROR AND APPEAL REPORTS. 118 juu^ment, or upon tho prom ssorv notoq h\]^a c lands tl ; '' '"^ °^^"^' ''^"'^' ^^ -' ^vhat ot or lands tenements, or equitable or other valuable rights or interests in lands or tenements in the countf f '"'"^'-'• pTattrbni ^^^r.'^^^^ r''^^'^^ cles'' -beTinV: nin !' '"^' '^''' ''^'''^''' ^^y P^'-son or persons other than the plaintiffs has or have any Hen,.eharl or incumbrance thereupon; and in case Ihe s d malr shall find any such, then he is to cause them to be served with process under the general orders of .V court u. that behalf and is to proLd to tatin 1 1^ of what IS due to the plaintiffs and such other incum brancer or incumbrancers for princinal mon.r i --tadt^taxtothemtheirL^^^^^^^^ to settle then- pnont.es. And this court doth re erve he consideration of further directions, and of the cos L of this suit, and of all subsequent costs, until after tie said master shall have made his report." appeal" *as'/-"'' *'' '''°"'^'^* ^'''^ ^^''i'-'- and bv 1 ^r;^ "' '''''''' '^''''^''' «••«*' that in and by^the said decree it should have been referred to VOL. I. ^11 '■■mm . -.JIH I^MIkH';'"' i-.-jiSBH^^ 114 ERROR AND APPEAL REPORTS. 1862. the master of this honourable court at Hamilton, in case cIS^ ^® ^^^^^ ^*^^* ^^^° "0^° °^ w^^c^ the plaintiffs' judgment Com. Bank was recovered, as mentioned in the pleadings, was held by the plaintiffs in a collateral security for the payment of any other promissory notes, bills of exchange, or securities for the payment of money, to enquire and report whether any, and, if so, what payments beyond the sum of .£100 lis., credited in the plaintiffs' bill of complaint, had been made upon tho note upon which such judgment was recovered, or upon such judgment, or upon tho promissory notes, bills of exchange, or other securities for the payment of money as collateral security, for which such first-mentioned note was deposited by tho said defendant Brian Carpenter with the plaintiffs, since the same was so deposited and held by tho said plaintiff's as such collateral security as aforesaid. Judgment Sccondly, that the defendant Brian Carpenter being surety for the other defendant Joel Carpenter to the said plaintiffs, is, but ought not to be, restricted by the said decree in this cause from shewing all payments made by him or any other person on the note first mentioned, or on account of the securities for which such first mentioned note was security, to tho said plaintiffs since ho became such surety as aforesaid, whether the same were made before or after the plea by the defendant Brian Carpenter in the action at common law. Thirdly, that such last-mentioned plea, although assumed and declared by the said decree to be a plea of payment, is not such a plea in tho form in which it was pleaded by the said defendant Brian Carpenter, nor does the said plea afford any evidence that the said defendant did or might show or attempt to show thereunder any pay- ment or payments to the extent or effect of preventing him from showing in this cause all the payments made at any time by him or any^other person since he became such as afo Mr. Mr. Sir difficul justice it is im judgme parties Thet upon th( the plea Carpent against might ac depositee seven th those of . Thatp was not Q\ to make j part of th prove wha been made the note o: to such am upon them verdict for £1500. B made upon of the dESOl evidence, a properly foj ERROR AND APPEAL REPORTS. r'foS " °'"""^' '" -'-«™ «f >..•» "a-ilUy .««. lit CarpenUr Com. Bank Mr. i'jf^^eraW for the appellant. Mr. It. Martin for the respondents. Sir J. B, Robinson, Bart. C T Tf ;. diflScult to deal witi, ihL '^ somewhat I' « .mportau. to mai„.am-of the conclu o„o~of S judgmont obUinod at la,v in .l,o action bZL PMties on tliis same note for J1500. The truth of tho caso appears to he that in (1,« .„.• the plea, that it was made and delivered by £rC GarpenUr as security for jiis son 7..; n r»»' anyaeficienc/not ^IZ, CLtZT^A 'Zz^T T"^ *° notes th:::::iit" -""' aeposited mth tho plamt.fTs after tho withdrawal of those of JIf.£-,„i.,.^ and others had been substitutid That part of tho plea was not only not proved b„t if w.snotovonatten,ptedtobeproved/lnorrr boVe°e ' p«rt of the demand, it was necessary to co farib.- ! i prove what tho plea further allegedf trat'patcnT; had £1500 R w,, i "T"-' "f *o defendants' note for «500. But the fact is, that no attempt whatever J!! evidence, and thri^'tt'^vclt^': ttZ T, properly for the piaintiifs for the full amount' i- SI u« ERROB AND APPEAft H»OKff. ^ In framing th poston, however, tliin error has been JJJ^j;;;;;;' connnltted— the jury arc ma.lo to negative the first o«*. W*' '^^"^'-'''^ '" ^''° ?'«•»» "amcly. '^at the XI. 500 note was mad' ■ and delivered as security lur the payment of the notes amounting toiJOOOO, which were still in the plain- tilTd' hands, to be collected and applied in payment of the debt remaining duo by Joel Carpenter. Now the plea could bo no defence, unless that allegation is true ; and if that had been in fact found against the defendant, it would havo been wholly immaterial whether the customers' notes to the amount of JC:JOOO had been paid or not ; and so the verdict for the plaintiffs upon tho plea w( ■lid bo correct, and it would be of no consequence that the jury had not specially found ono way or the other as to tho fact of payment. The trial of tho action on the £1500 note took place before the learned Chief Justice of tho Common Pleas ; and upon examination of what passed at the trial, it is fjuito evident that tho Judgment, postea had been incorrectly frnmr-d, as I have stated; for it was clearly proved upon tho trial, and not contra- dieted by any testimony, that the XI 500 note was made and delivered as security for the payment of the X3000 of notes left with tho plaintiffs by Joel Carpenter ; but as that fact alono would signify nothing, without proof of payment of tho X3000, or of so much of it at least as would go to show that the plaintiffs Avero not entitled to %'cover for tho whole amount of tho note, the verdict, in the absence of any proof whatever of payment having been made on account of tho £3000, was properly entered for tho plaintiffs, though not on the ground on whibh tho postca places it. Tf there were payments, in fact, made on the other not" ,vhich would havo shown this note in effect to be no L., r- rrnoverable either in whole or in part, tho defen dar wus ho.did to show it on the trial of the comnvui •■, f ai;iion. Th' plea allowed and called for such cvi'ieih \ if it couiu have boon fiven* and we are bound to treat the verdict and judgment for the plaintiffs as coni judgmi thejud I do referret given t( Joel Of. question judgmen is conclii judgmen however, dant £ri ground tl well as al to bo tak( before or V tho pla not leave i ^1500 no plaintiffs s defendant idea, from to that ext( the plea ph doubt, ther( reasons of s I think, T not to admi whether the , of so much and if the ji conclusive uf there would I made since tl judgment in t establishes th the X1500 no MROR AND APPEAL Rl; orts. IIT " eonclusivo between thon M ' '° " " """"'oci, judgment h.v,-„g Z ;„:X " °^-"S ".«« however, have aequicaied i„ 1 ° ' ^'"' P''"»'i«'». «11 as after that .ime shouLul "^ " ''''""'«''> «» 'o^b« taken by .he ^It' " I 'h': r''"""""' before or :ftcr the nW t},o,.. i ? ^ "' ''"J^ t'^e V ...e plaintiff, „„ t^e Te TexToo"""?',"' "'"'"» aot leave a defleieney as uL ,f ' "■""'' ""''l ^1500 „ete ,„ be m„°lo ntf I " """"'"' "f «'» '°*""'- plaintia sheuld be «S° in' ll ^'"" '''"•'°»''^'-. "-e defendan. the full ben fi.Vf , , T™"' '° «'™ '" "" idea, fron, the evidence given nt^^^'r ""'o ■"<> '0 that eiten. were made onll '! f °' """ P'^""""., tte plea pleaded ; a"d I ZiTr '' "-,= ^'"'^ before doubt, therefere, that there Lnoi'"'"'"^ ' """'" »f reasons of appeal. """S '"bstan.ial in the «ot' T^^r: zz: t '^ ''»'""^'- - -^^^^ whether the £1500 note , as' iveV. ""'" '° ^l"'™ of .0 m„eh of the £:mZnZJ" ",T° ""^ W"™« «»dif the j„dgn,en. as i. a "^XmTTT """-• conclusive upon that point ^J„J1 t ° '"'""' "> '^ there would be nothing ,"bel„- ^^ t^'"'^""'' t""™ »ade since the trial ol I'oZZ":^ "' ^^ ""^"^t' judgment in th. eo^-l , . -'^ " *""•*'■'' f"' «>•» establishes the fact't'lTa'; fcTlr!;;" '™« " " """''»' *o ^1600 note and the ^800ole by S':" ''""•"' !u "f fi I f f iia Carpenter T. Com, Bank, ERROR AND APPEAL REPORTS. I think we cannot properly do otherwise than reverse that part of the decree which refers it to the master to enquire whether the defendant's note, onwMch judgment has been recovered, was held by the plaintiffs as collateral security, and direct that it be referred to the master to enquire whether any and what payments have been made since the trial of tho common law action, on account of the verdict given in that action, or the sum for which judgment has been obtained ; and I will suggest that on account of the manifest error in entering up the judgment, the plaintiffs' consent that payments made on account of the £3000 since the trial should be treated by the master as payments made on account of the claim under the judgment on the £1500 note, as if they had been made by Brian Carpenter himself. In the accounts, as I stated before, the plaintiffs should be willing to admit an account to be taken of all Jndgment. payments at any time made on account of the ^£3000, in order that it may be ascertained whether in truth there remains any thing, and how much, due of the £3000, for £1500 of which the defendant made himself responsible ; but we could not properly insist upon that, because the defendant should have given proof upon the trial of any payments that had been made. EsTEN, V. C — It appears to me that the judgment is inconsistent with the verdict of the jury. The latter negatives the fact of the note having been given upon any such understanding as that alleged in the plea; while the decree supposes that such fact may have occurred, and directs enquiries, in order to ascertain whether it had occurred or not. I presume, also, that if any payments had been made on a note before the entry of the judgment, credit would have been given for them, and the judgment entered for the true amount; so that it was unnecessary and improper to direct enquiry as to any payments between the plea and the judgment. But the question is, whether, if this note was really given compel him fo: Court ( jurisdic could n case th the ju< Chance Carpem given a accordin proper immater obliged 1 it. Sucl affidavit, indeed, : rendered result mi^ having be evidence present, i tinctly sta although i upon what however, further ev it seems limited to right in m;; ment pass i of Chancer defence to i extend to tl think the d( indeed, Qai defence at h EBHOR AND APPEAL REPORTS. 119 given as collateral security for other «.. • competent for Carpenter LZ, 'I *''' '' ^«« ««* ^863. Wm for the full amoun and to T .f'"* ^^^^ ^^ainst ^W CourtofChancery for an ^ ''"*' * ^"'* ^^ t^e !'^-*« : • J. . """^''^V lOr an account, as flicf ^ ^ i Com. Bank. J«r«d.o..„„ over all matter, „f ,eo„ri.r '.,,,! '"' could more easily and effectually hellT, T '""""" owe the plaintiffs did not proceed t„ ,v , " ' "^ '" ".0 judgment, but inatit'd a li t" L"" r ''" °"' Chancery, for enforcing their eQuit!M„\ ^""^ "' Carpenter oonli not have nsLted rt . .f^'' '''"'"'°' given as collateral .ec^ity and nt > """' "^ accordingly. I ,i,i„i ,„^^ '' """^ P^yed an account poper fn'the parf of'"t;:r%r"''' '"^ -'"" .^material that he pleaded a 1 , • ?' " ■°°" '« obliged to plead, and offered n7 . "''* ''^ '"» »»' "• Such appear to hte bee„ t^ /"r J" '""'"' »' fffidavit, »noontradicted by ?hat „r^ '^'T ■"' "™ in«, ho had offered eridei' 1 f'\ ^'"■^- «• rendered a verdict against Wn,,!' \ ""■ ^"'^ '"»'• «.».t might have betnlfftn ''™,^*° ™f.-«. ■he .«^. having been properly raised at the hearL r^"' '^"'' evidence ™» received on both sMe^jf """"'>*». preeent, ,„ fa™„ „f ,|,^ defendant W ?"'' " tmctly stated by J/„£i„,(,^ and 1; ^ """" " '«»■ although it is denied by Mr pZl- u '^r'""^'' ■""» "pon «hat consideration the note ™s 'L;'' t? ' """= however, wishing to afford «n „ * The court, toher evidencef dir^^Td'e ui^^'tf b" f'"'' ' r"» '0 ""« that the enqXv w • ''' ''»' l™«ed to the time subsequent ?.?., ? "°P«P«ly right in my supposition tZ? ""' •"'* I' I am -nt Pa-Ur ^^f^" efcr "'*'' '" >^«- of Chancery, either by a bUl of hi, """"" '» ""' Court defence to the plaintiff's 6,"" T' " '^ "^ »' extend to the time of the deliverv 'f m"""™"' "'°"'<' th-nk the decree should bo varie7to th! "?' ""'' ^ ■ndeed, (7„.j„„(,, ,h„„,^ ^^ ^ bout f' '°'- '^' «nce at law, and having p,ea-, "^* ''z Common Pleaa • r;;* ^o«. Vice-chancellor Esten ' Th. n ^ V ^Mm«;* J%eJ7o« ^- ni' ^''' ^^'''- ^^>'' Justice Son. Mr ItZmn '"'''''''' ^'''^^'' ^^^ Justice MorrZ:^ ' '' ""' ^'^ ^'^' ^^- Bernard v. Walker. Mort,a,e, create, ly an a.soMe ..,_^,,„, tenant-Tenant in common. tenant tn Le Targe v. DeTuyll, 1 Grant 277 «. . , T. and B. being sure ies Zw '"' °7^"*^^ °» ^^"^ -PProved of. to the Cu/of"Sr;„etl red''?Z7'"^"'''^-^*--oneys powerofsaleby woyofi^demn ty afte^wi^^^ a mortgage with a to pay certain money to the city^^nd hoin , ' ^'^^'"S been obliged sums on his account, they obtfned iom fi'""' '"V^'" *" P"y other the nominal consideration of i"ooO^ f "^ ""^ '''''°'"'« ^^ed for nor did any accounting betwfen the' nLr ' "? ™'^"^3^ ™s paid quently the holder of a pr rmnrf ^900 that it was des^fed s^n loi? ""f ^' *^"' ^"^^^^^^ on its face purp^orod o be ! 'T ""' " ''^ '^"^ ""'" that either the said 7'/! ' ^' ^ '^'^"3^ '^ to bo true of our being at I l^sen tS ^'"^^f ' ^" ^''^ °'^<='^«'on or at or about the tin e^of th^ 1" ^ as aforesaid, or before ever stated to tJie ph ntiff f if ?.?'"''"•", "! '^'' '^'"^ ^^^d, considered ortlLnTfJt'-'^'}'^^ «^»°"^J be that might be due us'on Htl ff'""'"^ ^''' '^'' balance and I deny fuSfer that it w^ ' ^^««"nt between us ; understood by n e eitor fn ?J'\'^^^^^, agreed, o^ any person on h s'beh f 1?^ ^ -5° 'f P^'""^'«" «»• be a security for an v J. 'i T''^ indenture should be considered o'hernirZn''' T '^'' ''''^' '^'^^^ and I say, that o the L o? '"i^^^'^te purchase deed : and belief the said rL if/ '''^ ^""^'^^^S^ said deed as an absoSS'' '" /' \«,"^^""*^r took the the time of the oxecutL of 1 '"^^t^"°> ^'^''' ''' ^t said plaintiff, or in anv 1 ' '"^^^ '^''^' '^^^' *« the that the said Seed shUir' "^'-T ^^? ^^'^ ?'«'«*'«; merely, but I believe th! i ««"«'J«»-e(l as a securit^ regarded and treated t ! t ■^'^«.'"P««"' ^^ke myself; purchase of L pki, tiftl *??'''''? "' .'^"- ^^''^'^'te 128 •^^^ ERROR AND APPEAI. REPORTS. m2^ Bernard further stated, in his answer, that he after- lizard ^^^^^ ^«"' ^nto possession of the lands, upon an agree- Walker. ment between hira and Thompson, and had expended large sums of money in improvements. [This statement as to improvements was not borne out by the evidence.] That Walker having given a mortgage on the land to secure the purchase money to the person from whom he had bought the estate, and the holder of that mort- gage having pressed for payment and obtained a decree of foreclosure, the said defendant did, on the 28th December, 1853, pay to her solicitor ^£1200 12s. 4d., for principal, interest and costs, "and that thereupon the said solicitor delivered over to him the mortgage deed, and signed an undertaking to transfer the same as he should require ;" and that he did not belive it to bo true that Thompson ever admitted that the deed so made at St. Joseph's was intended by way of security merely; Statement, a^ if he ever did make such admission, it was without his, the said defendant's, privity, consent or acquiesence. The defendants ariffith and Diohon, executors of Thompson, denied all knowledge of what conversation took place with the plaintiff at St. Joseph's, at the time of executing the deed to Bernard and Thompson, or that they had ever stated that the deed, though absolute in Its terms, was intended to be a security merely, or that they had ever heard Thompson say so ; but they admitted that Thompson had told them that if, when he and Bernard should sell the estate, his proportion of the price obtained for it should exceed the amount of the claim which they had against the plaintiff by as much 08 would satisfy the debt which the plaintiff owed to Thompson individually, he, Thompson, would be willing to give the excess to the plaintiff as a free and voluntary gift; that knowing such to have been Thompson's mten- tion, they had admitted it to be the fact, and intended, If It could have been legally done by them as executors, to have carried Thompson's intention into effect ERROR AND APPEAL REPORTS. and aa.e 7h " ," ™ "" ""'""^^''^ "f-*™ '^-^ -rrf and not>l tZT'' ™ °™™^='' '» -fi"- IT^ deed stated, «?£ 000 V ? r''"*""''""' ■" "■« T^ lave been paid! '""''• '«"'°'«I«''sed in the deed .„ """• unpaid po.i„„ .rthe""ptet ": ;; T^wZ " the ho der of th-i^ TnnrK,„ "iuuy, mrs. yVaahburn, a -it instit ted W:Ttf: Ted °' '" """'""' " '« Joseph', tUnd and rtill tl, r •'™' "'""'"""' "' »'• afterthee^ecntionlfth fd d 71,r T''"'' ""^ which application was succefsfu T ' ^^^'^^^^n, toTe bel^oVJ^^ro fS S-.^ ;'^ *h'\ -use are, double the sum found due fn J 1. if ^ ?''? '"«•'« tJ^^^^ under the master's renort in i-^^^^'"'' *^ *^« P'^i»tiff, say that the said dS^nn hr"''' '"^,^ '^^ ^""^^r Island of St,Joseph,in"Lat Suro? S'r.^? '""^ making exertions on his behalf tn v , • ' .f *^*' ^ ^™ able to the plaintiff for prindD.] mf *^'^"^°"^J Paj- costs, und./the said repor S T f !f ' "^''''"'*' ^"^^ verily believe that if the 'tim. h '*'''/'^^' ^^^^ I honourable cour?. for the r! I f^''"^'^ ^y ^^'^^ premises, for a period of six m^i'^^'l'^'' .°^ *^« «aid >.ill be enabled KdeeLthe^^^^^^^^ In the other affidavit, he swore « thi^ T fi.- ^ and one^e^am G^..''ntcdatthefoot Thn J a bill bemff s ffncd hv W n n "^"t-root. Ihehand- « gnea by W. B. Crciv, as auctioneer. 127 1862. nf balance of the pSase mo /"r'^''^"'"^'" '"^"^ *^« annual instalments w^^^ ° '^^ ^""^^ ^'" ^""^ ^^"^1 payable in the same manw" ' ^'"'" ""'"'• • - year. c«di, a„^a .haVln^^ '^U .^-^.r ^^ Statement i f I f ! ' ' 128 ERROR AND APPEAL REPORTS. 1862. there were 200 acres of woofl land, worth ^40 an acre ; '—-V—' and that a farm in the noi;^hbourhood, not more valuable ■•;""* than this, was sold in 185G or 1857, for £25 an acre ; w»ik.r. that lie (Marsh) thought of buying the farm now in question in 1857, as Thompson was indebted to him; but the debt not being sufficient to cover the price, he did not purchase, though Thompson, he swore, told him he need bo under no apprehension about the balance," (that is, about being pushed inconveniently for the balance,) "for that, after settling certain claims that they had against Walker, the balance was going to Walker, and he wished it to remain invested, so that he (Marsh) would have time enough to pay." He also swore that he had several conversations with Thompsonj and " that it was always understood the balance was going to Walker, after paying their claims," which Thompson said was on account of moneys paid by them (that is, by him and Bernard) to the corporation of Toronto, for Walker. "I never had any negotiations," he added, with "Mr. Bernard about the farm. I understood Thompson to be speaking both for uimself Judgment. ^^^ Bernard, but I cannot say what he meant; how- ever, he always spoke in the plural number." Other witnesses placed the valuation of the property much lower than this witness ; and at the auction no one was found willing to give the upset price of £20 an acre, in consequence of which no sale took place. Another witness ( Watson) also called for the plain- tiff, swore that he was intimate with Thompson, and a connexion of his, " he frequently told me, in conversa- tion, to the effect that a deed of sale had been made of the property in question, as a means to relieve it of existing liabilities, and to protect Mr. Walker and his family, and that the balance would accrue to Mr. Walker for the benefit of his family, and that he expected there would be a handsome surplus." ^'Thompson," he adds, " told me what I have stated about the surplus on differ- ent occasions during 1854, 1855, and 1856, when I was doing business along the coast of the lake, as far as Sault Ste. Marie. Walker and Thompson were intimate friends ; Walker, I think, reposed great confidence in Thompson." The defendant Qriffith was called by the plaintiff as a witne he was knew n the pro frequen sold, ai intendec It wa! day or t suit of I the amo solicitor, 128. 6d., He des which was Walkir di was, that 1 to Bernar solicitor w paid by hii the proper and intere Walker. | inte did not con The deed at St. Josep who alone si gave this aci " The dee and wife. Be lineations wh deed througl were made a met Thompso As soon as w( with him and 17 ERROR AND APPEAL REPORTS. ii a knew nc,thi4'°I.o°Ll "„f V"!:';" f"':" "> '"«!'■ "1 —t the proportv until nflor T/L. ■ 'V"'".'S »".V claim to "•»« foW, an/ ho and Mr 111 !' ^f'T,""/ ''""'''' '■» ■ntendoa to gi,o Walter tt ball' " '"' '"''''• '" --a:.i„,?rer„r2r'„r:r;."'^'"» He desired to have tlinf- 't««„> "hioh «s declined for , IT o?""" ""'S""" '° *™. 'r<.^fc.directing=„e„U!^',„ ; P™"". "f' ^""n wa», that no authorilv «■■,» T- , J "''J^'ion made sohcitor who attended with ZnZ J ."""' *^^^ ^''*"'«*- paid by him, swore that ^Wrfol r ' t "'"^^ the property should be sol,! T ^"'" ^^^* ^^'f^^n and interest he intended tf.r'" ^^^^^ P^^-^>1 Walker. So far aglet ^'''"'° ^''°"'^ S° to always intended si ll ir^tTr'' '^ ^^''' '^ '^' did not consider Mr. wllkX T' '''"^' ^^'-^^ ^« ffa/zler was entitled to redeem. at s'Vtfphtt tW^^^^ ^^^^' - -cuted who alone ^gnirif LTXrlL^ ff ^^^ '^"^^^ .ave this account or what pa.:^;^i;:~^^^^ and S:/i:^r,---^/^in ^^^ presence by WaUer Imeations which made Charles tL '"'''^^ ^^« i^^^r- deed throughout; they are in ^l T'^'i ^ P''^''^^ to the were made at Mr wlfk7J u ™^ ^'^ndwriting ; they met n.ompsol Tnd Ber 7 ' ^°!!'' "* ^'- Joseph' s J As soon as^we arrivfd u" S ^'^"^ «^" *''« steamboat! -hhim.d.....:^^JV^tT^^^^^^^^^ VOL. II. 129 (! h(4 fl >-t I 1' 180 ERROR AND APPEAL REPORTS. I8W. document; I did not know wluit. I went with them to Walker'a house. We mot IVal/a-r nt the whni-f : ho did not accompany us to the house, WaUcer staid on the wharf. When we reached the house wo passed through two rooms into an inner or third room. WnUcer jo'inei i^ in about fifteen or twenty minutes. Wlion ho came, Thompson pro(hicorl a document, and laid it on the table, and said, ' Mr. WalJccr, I want Mrs. Walker and yourself to sign this document.' WaUcer went and fetched Mrs. Walker into the room. Mrs. Walker objected to sign the document ; she said she had already signed, and she did not think it necessary she should sign any more. Walker then examined the document, and found it was made to Bernard alone, and he objected; and then, and for tliat reason, tho interlinea- tions Avere made, to remove that objection. Walker required Thompson to bo a party. T'lonipson replied ^»^^^\^^(ifker's objection, that tho deed would not aflcct Walker's right of redemption ; that ho still would have a right to redeem, otherwise the property would have been sold to meet liabilities that had been incurred 8ut.«,nt. , '^ p^'°"'*\ ^'"'''^ ^c*^" sacrificed ; and ho urged this mode ot settlement as preferable. I understood it was to raiso money to pay off what was due on the place, and other liabilities that were pressing. After this conversation tho deed was executed. ^Bernard was present during part of the conversation. When Walker and his wife entered tho room, Bernard stepped into the adjoining room. The door was open between the two rooms, and remained open during tho conversation. It was an ordinary board partition between the two rooms ; a single row of boards set edge to cdtre ; it was not tongued and grooved ; it was not tight. "The room we were m was a small one. I have no doubt whatever that a person in the adjoining room would hour all that passed in the room where we were. No accounts were gone into; no statement of figures made: no money passed ; nothing more was said that I know of, and upon the statement I have mentioned the deed was executed I went up in the steamer with Thompson and lierna^d. 1 did not know what they were going for until a few minutes before we arrived ; they did not shew mo the deed till we got into the hc.a.-e ; I had no conversation with Ihompson and Bernard about the deed. I did not read the deed ; Walker read tho deed himself. All he said was that he wanted Thompson's name inserted as well as deed, sj meet lii Bcniar on tho the rooi in tho ai leave th room, bi did not I fact tliat myself a Avas abr took th( immediai Sault St. absent at him.;ust 1 I think li place. * senco; he at St. Jc at tho SB entered tl wanted to Tho def on behalf ( the taking it, were as "I rem( there, at ]i boat stoppe Mr. Thomp I don't kno interlineati( duoed, that I heard no t of that we corporation. tioned. No much duo o iKoro than h I thought or 80 said. I ERROR AND APPEAL REPORTS. moot liahilitic. It w 1 J , ' • "f '■"'™"»' """"^y "> ~— V— on .1.0 propor.y. I Lnn„r "' ,;, "ft" "rj T™^^ """•' tlio room V lieu tlii, „.„ ,„,-,i . r , i i ,""''™ "»» m in .1.0 a,u»ini„s ,:;,;; \"';ia rrS; ."'i" '" ;••"» n' , .^^'"^" ^"0 •''•'^'•iission took entered tie room i.ftc^- l' f 'Y .''^^''^''' ^«^««''^ '""'■"'"'• wanted to sign the deed." '' ^''' '' ""^^' ^'« ^^«^« nnf 1 tA"''r*' ^''"'"-'^- ^^« ^'^^'"'■ned in the cause on be alf of the plaintiff. His statements, bearin. upon there^rT«:;.f i",i/,^,«'; ^ I«'-^^' I -as boatstopped to ;ood andhnr' ^ ^'^^^^^ while the Mr. ^/.o^l;,«.^ wis with me ho .P'l'?,""^- , ^ ^'^'''' I don't know wl w^ te k ' T 'f '•'": ''^^ '''''' ^''•^• interlineatioL we. etse led T ''"'""'' '^'''^" *''° 'luced, that I rccoHect Mr ^' ''''""'' ""'''' P''^" I heard no tnlt „ J f ^- '^^'"'^^^ -^"t up with us. of ?hat we h ul " ""''T^'- '^^'' '^'"^""t was spoken corpomk,n I rJl '"^ ,7^'^' ''' ^"^'^ ^° P^3^. ^° 'he tioned ??; ' recollect any figures beinc. men- ^u^h due'^oTtiriSr"'- ' ''' "^* ^'""'^ ^^-- -- n.ore thin \ }l ^y^^hburn mortrra^e ; I thoucrht not rtroughtJ;f Sufis 'r ""/'^""' f"*^ ^f^--^d« 80 said. I don'tif k''"' .''"' ''^ ''^° ^^"^'^J it was 1 dont remember giving evidence in the 181 ' i I 182 1862. ERROR AND APPEAL REPORTS. mas or s office, but I might have done so. I don't »-«'« S ii"^. negotiations to reduce the amount. I wJk., f ■ f«^°'l<^°'^ st'^""?? 'n the master's office my reasons Z}%r'''''" '"^''^^' u ^ ^''''' ^«°°l'^«t sayinV that f and T/iompson were the absolute owners of the land- nor can I account for not doing so, except that I did not know much about the matter. I don't recollect about my evidence ; it is ten years ago ; my memory is no very good ; I have frequently foiVtten^mX7 I was in possession of the property when I went to St. liLZ ^^r^'f"'-'^ ''"'' P''e««i"g- When first asked I bought not, but on reflection I think I did; but no hing has ocQurred to alter my view. I went up to get he deed. 1 cannot say why I told him that the mortgagee was pressing. The suit had been commenced : thelhr' V?t^ ^'^'' V""' ^'■"^- ^ '"^'^ "°t know when the debt would have to be paid. * * * Thompson, I think, was not looking after the land more than myself. Tsl Vn!!'' T?'''''i: ^^'^'''^'^^ ^" J forwards to St. Joseph's island. _ He wished me to go to St. Joseph's. I had no stauu.,„t. Twent"' nr^TF f?t'' about giving the deed before 1 went. 1 think Walker knew we were coming. I don't know who told him ; likely it was Thompson. I do^'t know by whom it was arranged that we should go up ; I SD 4 rir^TF 'n ^ ^f''Z '^''' ^^'^'"^^^^ ^^^ been speaking to Walker with reference to our going up. Thompson proposed to me to take the deed iJmy own name some time before we went up. I objected to^it at the time, because I wanted my money back, and wanted Thompson to pay his share of what had been paid by me and was to be paid ; and then Thompson agreed to so shares and take a joint deed. I have been in possession hThi 1 \, P^'oP^rty has always been for sale, and it has been let fi-om crop to crop ; for the last two or three been pa Id when we went up to St. Joseph's Island. I tliink 1 have paid the corporation about £900. I have got receipts for all I paid, I think. The property was forlT/^r ''i^' TI^ ^l'^0<^; but it was offered for sale afterwards, and £1,350 only offered. * * * ihe property was offered for sale twice by me and mj^«.n; the last time in March, 1857. We instructed Crew to offer it for sale. Thompson fixed an unset pnce,and it was offered for that / 1 think seyenJy^ or ERROR AND APPEAL REPORTS. tttnt.'>" ^'^ ''''' ^'^-P^on prepared an adver- property, and nonfps^S iJ'^^u^' "^''^ ^^ '^^ the owners of it. WaLTLi T ^^"^^forth to be to be so. * * * %ZZ ""•^^'•stood the transaction the property for sale b!Jh"C'' " ' '^''^ '^ ^^^^'g I^e-examined. — * * * <« t j- 1 over before I swore to it NofMn """* '-^^ *^^ '^ns^er when the deed was executed th/'Y^r'^'" ^«« «aid «'gned ; nothing was said about tbl K ^'"^- ^^' "^^^e^J arranged before we went un i? ^f-^'"'" ' '* ^as ail the time." '''°* "P' ^"^^ nothing was said at In the foreclosure auif nf nr 77 made a deposition, i„ whieh 1 [ ^''""'~' ""d stated that he ",,™,;„ ,'■""« '"'">'■ things, he tnat 1 took an interest in effe^finl « .., ^''® '"^ason i>/«m.on and TF«//c.r respecting fl,/'"^''"'"* between I and Mr. T'/.o.,,;,,,,, w fse ufitv to"!?"^'^^ ^^^' ^^^^t thectyfor Tr«//,er. There L ?!?*?' '^''^^''^tion of -»• '^'.o »o.,a,e is ^olidiSeSSd';' tX" It was proved that soon after th. deed of the 28th of October 1851 I '"''°" '^ *^« possession of the farm and ZTJ ."'^ ^""^ ^"^o wards by himself or hs' tenants A^^^^^^^'''" ^^^er- ^ this was upon an^ ^drt.:^;^;;;':^^^ that he was to pay a renf fn i • ^f^ompson «.»,;,„„•, i„.oJ/i„ .ho ;;;„,•:: P7««»"a.e to governed by the proportion thaT TO ™ "> >■« found .0 have paid of the iiab ,i il^^^htfr "''™" '^ -n.ed to the city of Toronto In Vj;t:''r r °' T^oca« canteen to ho ieardnpon the pleading. i : ! i 1 ! 134 1862. ERROR AND APPEAL REPORTS. and evidence in May, 1861, before his Honour Vice- Chancellor Eaten, when a decree was pronounced in favour of the phiintifF, dechiring him entitled to redeem, and directing the usual accounts to be taken. From this decree Bernard appealed, assigning as reasons therefor, first, that the conveyance in the pleadings mentioned of the 28th day of October, 1801, was absolute in fact as well as in form, and was not intended to be conditional or by way of security ; second, that the evidence produced to the Court of Cliancery by the respondent James Walker to prove that the assignment was conditional or by way of security was inadmissible, as contravening the Statute of Frauds, and ought also on other grounds to have been rejected. In support of the decree, the respondent Walker assigned the following reasons : first that it sufficiently appeared by admissible evidence that the conveyance in Btatement. quGStion was uot agreed, or intended to be, and was not in fact, though it may have been in form, absolute, but was agreed, and intended to be, and was in fact though not in form, conditional or by Avay of security, as the same is by the said decree declared to be ; second, that the said decree must at any rate be sustained as far as respects the interests of the other defendants in Chancery, and the equities between the parties cannot be adjusted, or the said decree varied or reversed, in the absence of the said other defendants in Chancery who are neces- sary parties to this appeal. Mr. Strong, Q. C, and Mr. Crombie for the appellant. Mr. Blake and Mr. J. McNab for the respondent ( Walker.) The authorities principally relied on by counsel appear in the judgment. Robinson, Sir J. B., Bart.— As to the deed of the 28th October, 1851, which the plaintiff affirms was given by him, Thompsi ing that but only found to become s things ar of it an i chaser, ai was giver that the h standing , seems eqi intended, affords gr( sometimes vendor sho upon retur interest, or The con plain on th( any refencc agreed upo: in his own makes that of as the pi accounts wei He had advj have to pay out any thir that the plaii and Thompsc sureties for Ii should make of the inden claim. It would be ERROR AND APPEAL REPORTS bat only as securitv r! i ^'°'"" ™nvey»nce, found .0 o,v Iri:':'"™"™""' ^» '"-M ^e become .eouH,, fl^Ti:." rc^rof ^r^-"''"^ tb.ng, are ,ni.e plain-fl^., .h^ .^^j//, ,:^;7'.''' '- of It an absolute conveyanco a, f,.„„ 7, , " '"'"' cbaser, and contain, J, ,, ''"''^ '<> " P"'- W.S given „::':;; : tf;:: "";"""°." '"" " that the land was conveyed „„on,r;'"""« '''''"• " standing or agreement of 7 ^T ""P™'"' """i'"- -.s eVaiiy-ciTarifi //::;. :;;^;-»;"y. ■■' intended, this was nof o . • '^* * '^'« ^"^ affords ground Irsunno,- !.'" "^'^'"'^ '^' ^^^^«"«« -eti^fs is bete: t; 1 ^::;\^^^^ r f ^^ ^^ vendor should be allowed t Ipri , 1 ^ "' ^'^^ .^^^ upon returning the price thJ, .^!, t ^^ '^""''"^ '■"'e-t,orontysp''er,::':Ltn":^rLT""-''^ 135 1863. ^ 1 i The consideration expressed was £1000 • but h ' plain on the evidence thof-t),... ^^ ' out it is a»y refence to the vll f . 7 f ™T "''™'' "■'""'"' agreed upon by . , part L % !''; fj '" f^' » - in hio «t^« parties. Ihe defendant Bernard m his own account of what passed at Sf ^^5' makes that clear; "NosHrn'M Joseph's, 0-^ as the price that wf t bj p 'l^M'^^^ T'"" accounts were ffonp inf. i ^ *^® ''^"^ 5 "<> He bad adirnc'd , " aid"" Ir '™ "' »""<'-^-" bave to pay more oLM , * '"°"' "'"• "'■'P^^'J '» out any'^.UnT!!;ri Z-''"?"'''"™'"'"'; "'"i ''i*. •hat tb^ SiffX trr : t,!V° "'° ™°""' and Tfc,„p„„, i„ eonsequel of theth "' T ''™ sureties for him it »,.,. , ' '""'"S '^ome »hou,dmai.„'ri;::i.:«r -fh™"'"^--''.';-'" of the indemnity they wore or l', """"''^'"'°" claim. -^ tnoywco or m,ght bo entitled to It would be difficult to credit this statement, even if Judgment. ' ( m 186 ERROR AND APPEAL REPORTS. 1862. there were nothing expressd in the evidence to contra- dict it. Among men of business, it could scarcely happen that such a transastion would be conducted so loosely ; for the plaintiff could not have known at the time what he was getting for his land, a valuable improved farm in a highly favourable situation ; and for all that appears either in the deed or otherwise in the case, he got nothing, and asked for nothing, in the shape of a discharge from his liability to indemnify, which the defendant says was the real object of the transaction. No doubt the plain- tiff might have agreed to give up his equity of redemp- tion, in satisfaction of the debt, to his sureties, and that would have been as much a sale as if it had been made upon a new consideration, paid to him in money ; but we can hardly believe that such a transaction would have taken place without any attempt to ascertain the true amount of the debt, and without something being given that would show the plaintiff discharged. • udgmeot. The defendant Bernard states now that he has paid in all about £900 to the city. It does not appear that Thompson made any payments. But Thompson had had various dealings with the plaintiff unconnected with this matter of the suretyship ; and it appears to have been agreed between the plaintiff and the other two, that if Thompson should be found indebted in any sum to the plaintiff upon these private dealings, that should be allowed to stand against the advances made by the two on his account ; and Thompson and Bernard were to adjust the account between themselves on that under- standing. Whether a large portion of the sums advanced for the plaintiff might not have been covered by an amount of debt due to him by Thompson, is uncertain on the evi- dence. There are conflicting statements on that point, and no account has yet been taken. The plaintiff had bought the farm in 1845, for £1,150, paying for th( value J not wo more vj had nc incumb plaintifl would h above t would r Accordi others, t giving u] even if ] would hi been paid It is n( considerai did part t easy term the transa sale, if fc intended ; real inten considerati Looking yet remark such as to parties cou land was to nity for all the plaintiff accounting, to be consid( ship thus fifli But, gracl 18 ERROR AND APPEAL imORIS. v-l«at .he ttae ain.iff, before he rat f^lr,:?""" "■"' "^ wo»I« -iO p." with it absl'tf la Ititi; '' '" -"^ '"•■"' easy terms, however wo„l,I • , • ^ S° "P"" 'oo the transaction looked UP ' af ° °'' °'"™ "> '"'™ ««le, if for all Zt a.T °'°""'^ ""«"■ ">"» a intended; but wh „ ° C' V " ""'" "'"' "» real inteition I ." I pt ;°"°'°""« «™™" »f 'be consideration does ro^TSgrSX^ulr ^ °' .et^:ti:;vo:,ret:?rftr:- ^ "- land was to beg'en "tJT ""' '"*''''" "'»' 'be "ity for all thatTey lad nlw f °""n ^ " '"'' '"''™- 'heplaintiff as bis sTretS a^d tl 7 , '"'" '" P"^ f"-- accounting, or an v till ! t' ™"'°"' "Vf-nher '0 be oonliered f h r! r/ tt t'"' ^ ''"' ~' ship thus finally do,"i °' """^ "'' ■"""'■■ »f 'be surety. But, ranting that that would seem improbable, we VOL. ir. 187 t -1 Jadgmeni ERROR AND APPEAL REPORTS. are yet to consider, on the other hand, that no fraud or mistake in obtaining or giving tliat deed is proved or alleged, and that the deed must therefore have effect according to its language, unless wo find ourselves war- ranted, by evidence admissible in such cases in courts of equity, in directing that the transaction should be regarded in a different light. It has been urged by the counsel for the defendant Bernard, that there is no such evidence as can be relied upon, or can even be received in equity, for cutting down the absolute estate which the deed by its language has given to the grantees. This brings up several questions, which have been already so much discussed in this court, in several cases we have had before us, that we may assume them to be settled by decisions which are binding upon us, leaving only that occasion for doubt, that it is difficult in most cases to exclude, as to the correct application of the principles to the facts of the particular case. The cases in this court which I refer to are, Grreen- ahields v. Barnhart, (a) Rowland v. Stewart, (i) Matthews v. Holmes, (c) ArkcU v. Wilson, (d) Wragg V. Beckett, (e) Monro v. Watson. (/) Two of these cases— Gfreenshields v. Barnhart, and Matthews v. Holmes— having been carried to England by appeal, the judgments given by the judicial committee of the Privy Council are reported in 5 Grant, 99, and 5 Grant, 1. And besides these cases, the Court of Chan- cery had occasion, in the case of Le Targe v. DeTuyll, 1 Grant, 227^ to consider the nature of the evidence on which courts of equity can act, in holding a conveyance to be a mortgage which upon the face of it purported to be an absolute conveyance. We have expressed our \ a) 3 Grant, 1. c) 5 Grant, 1. («) 7 Grant, 220. (b) 2 Grant, Gl, (rf) 7 Grant, 270. (/) 8 Grant, 60. concurr thougli thought desired case.itse Upon the man^ must hoi not be al but the V Bernard 28th of ( admitted and was r ance. Si tions had there ma^ evidence, the court, face of it to operate proper foui plain what clear on ni oases of Le and in tht Justice Bw. out such ev of the defei have been a( a moment C( any declarai none in hia i the contrary plaintiff affir; But the pi; of which th ERROR AND APPEAL REPORTS. thought LT , "'' '" '"""'■ ■' "•"«'■'«<). « -V- Sto / °'f "■; "■'''"'' " ™ ■'"Opined was "".i"' no be allowed to redeem, if l,e had nothing to rely npo„ 'r "'' '"* '""' ''^f"™ "'» 'l««J was ma,lo That there maybe facts shewn, either by written o verb! evdenoe, whieb, when established to^he Itisfteti n „ he conr. may lead to the convietion tha a dee 'n, he ""^ face of tt absolute eould not have been intended so to operate between the parties, and that this wm lay a proper onndation for receiving parol tes.i.o y toL' plan what was the real natnre of the transaction, is clear on numeron, authorities, and is explained in he ,ascs of Z.ra.s,. v. l>eTu,U and MatZ. y. ^-it and m the well -onsiderod judgment given by m;' Just>ce^„™, in IMana v. Ste,vart. Whether with out such evidenee, the proof of mere verbal d cTaraH onj of the defendant Bernard in the ease before us could have been admitted to contradict the deed, need no be or a n^oment considered; for there is no proof what ver of any dec arat.ons or admissions of that kind by i IJ no- » t- answer, and none independe„t/of r On piamtiff aflSrms in that respect. of Iwct' fr''' '''''' ''' *he following circumstances, of which there is evidence: first, that according to 139 .' I A f J'' 'M 140 ERROR AND APPEAL REPORTS. J862^ the (lefcncant's deposition in this case, and from the Bornara °^^^^ cvulcncc, no Certain sum was paid or agreed to be wJker. P^;'^ "s the price of the land, nor any thing said or con- sidered between the parties in regard to its value, nor any reckoning of the amount which the grantees in the deed had already paid to the city on the plaintiff's account, or of tho amount which they would be called upon to pay thereafter, nor any amount brought forward or spoken of as being duo by Thompson to the plaintiff on their mutual transactions; though it had been understood that any debt due by Thompson should be allowed to bo set against the moneys advanced or to be advanced by tho grantees in he deed to the city on account of the plaintiff. If the transaction was really such as Bernard repre- sents-simply a sale of the land in consideration of whatever claim Thompson and Bernard might have Judgnent. upon the plaintiff for indemnity— it would certainly seem strange that tho parties should have entered into no calculations to ascertain how far the land would or would not bo a just satisfaction of the indemnity which the sureties would have had a right to claim. If the plaintiff had certainly no other property than this land and if there was no likelihood of his ever owning any thing else afterwards, and if it was quite clear that the plaintiff's equity of redemption in this lot, in addition to the amount of any debt that Thompson then owed hira, could not be worth so much at that time, then it might well be that they would agree to take the land in full satisfaction, and that the plaintiff might be willing to let it go absolutely and without any stipulation for redemption. But even then it would be strange, among men of business, that nothing should be done or said, either then or, for all that appears, at any other time, with a view to ascertain how the parties stood-how much the sureties had paid, and how much they would probably have still to pay; that there should bo no sum spoken of as the reasonable value of tho land that the fiRROR AND APPEAL REPORTS. "temp. „„,,e ,„ „scc,-. , „ l"° /.'v' '^.*.°'' '"'P°"' ^ »« >9<». • of M„„,„;„ .„.^ ,; ;^ 'f- tl,c „la.ivo intents ""'"■ "» bol,voc„ tLcmsolvc a, V u""'** '"' '^''''"^ "Me, or asked J,CoZ' 7"""^ f'"'" "" "'^ »"» "gainst any after c 1 ' ' ^ '"."""^ "'^ P'^^'iT -eiOOO n,en.Lcd „ the J„ T '"'"''"='" """ ««> pu'in witLont anVrelr/.o .hi" •" '"""^-^y •"»• 'anJ ; and (he deed eoll * '"''™ "■■ ™'"'' °f ""! tha. «„,d show a„rcer/ ","'•'' ''''^P'''»''«™ taken. ^ ^ "^"^ ^erwarc? had under- If it was necessary to form «« queseion of fae., whether .hrii„.iff.r°? ""^ *' '"'"»■•• land was or was no. a. ,1," .? ' '""'■*'' '» He anj thing „oro , ' n H , "^ '™"' "'°"'' "■»■■» "r sureties woaldharid ,"'"'" "''"'' ""' ?'■"»«»•» have paid ail .hey were Lr^ ■"" ^"'' '""^ "'"'■M to Mtisfy ourselves „„„„ ' "" '^""^^ ^' """He p.a.-=.»^ .or::r;r".h?,::nor l^olzir ''- •I.e elai™ whieh rW. , ndT ""^V"'''^'' '° °» afterwards have upon fhe'll,-^ T'' '""' '"' ""'«'" equal or exeeed wha^ ,1,, , , '"^ ™ '"' '"''^"es, would cannot tei, .Irr.nt;^".^:^? '° '^"' « kim a debt, and of wh., Mom/woj. owed precise evideneo of tie ^^"''"^u""'' "'""'"' »«» an.ou„t Whieh. he ::::;eVh:tVaLtJr' "''*'' por": l^eerl't' Tt ^ ""' "^ » ^ue pro- -»-"..: ere;r;r.h!:«^^^^^^^ 141 (..H I .J I »tl n < ' 'J 142 ERROR AND APPEAL REPORTS. 1862. as are ordinarily taken among men of business in conducting similar transactions, could bo relied on as sufficient for shewing that the deed absolute in its ternns must have been intended only as security, and should be so treated ; but that part of the case is nevertheless material as being in accordance with, and tending to confirm what may be inferred from, other facts which have the same tendency. Then another fact proved in the case is, that when, on the 4th November, 1857, Thompson and Bernard ofl"ered the land for sale by public auction, through Mr. CreAO, their auctioneer, they did, by a printed handbill, signed by Crew, their agent, and to Avhich their names are added in print as proprietors, advertise the sale as about to be made, " to close the settlement of an estate." Now, all three were then living ; there was no estate of a deceased party that could have been meant. But if, Judgment as the plaintiff asserts, the deed was only given as a security, and if it was intended that Thompson and Bernard should indemnify themselves by selling the estate, and should pay over to the plaintiff any surplus above their claim, then there would be a settlement to be made, which might naturally enough account for the sale being spoken of as a sale to be made " to close the settlement of an estate ;" for until the estate was sold, the ultimate rights of the parties respectively to its value or proceeds could not be settled. This does seem, therefore, to point to a sale about to be made for some other purpose than simply to turn the land into money, at the will and for the benefit of the vendees as owners. It is proved that Thornpson drew up this notice, and that both he and Bernard concurred in the terms of the sale, and were both present at the auction. I refer to this not as a circumstance by any means important, if it stood alone, but material as strengthen- ing the other evidence in the cause — I mean the circum- stance that ho was recognizing the attempt to sell, and acting, or endeavouring to act, through his agent, in Belling describ* Ther( closure i plaintiff; conveya Was pen( have tal Walker, to reduce but also 1 have joir though if 1851 was sale, the ] in the ec right to r person to But wh£ his favour, are the t^ respectivel filed in tl We have tc and what ei Bernard's ; The first contains no 1851; buti recognised t the person e son interestc express purp in that cnpac had been set cause. Itsta BKROR AND APPEAL REPORTS. Set "'"''• """" "" ""••""--"' -I. as I have ,m. 148 Thero is next tho further fact tl.o^ i ,. « closure suit was brought brM TF^L '^" ^'''- T»to., „, owner of I,o' 1 ;;;!:' '"','''° •""'"'* to reduce ,l,e „„„„„t „,!,''; Jh^r '"'"'' ""' °"'y but a.,0 .0 have tl,„ , ;i„,wf °" "'° "'"'•'"'Se, have joined in ins.rnet .c „„ ' ^7°""'' "'"' '° though if the deed ho h„3 hi !, f ""»= P-T"'-^' ; «ale, .he plaintiff eould hivo 1 ad'.. T"" ""/'»■''■"» in tho equity of red!!! r '"'""" """"rds H«ht.oLX^™';zir„'„ttrrx'"'"° person to he .ade defendant i„ the fleeTosarrsu'ir" -to:ra:^i:rLrt:-j:r— '" ^ ivoij^ on the lOth and 19th December 1«'^'? a filed in the foreclosure suit of ir ,7 ' ' ^""^ We bnv« f« • . °^ Washburn v. TFa^/ter i».™,,rrf.. n^ht ShtsuU." " "*"™ '""' "■•" -"f-' The first of the two affidavits it will i. oon.a.s no .a. „,,,„ ---^^^^^ i»ol, but It IS fan-Jy to be implied by it that Thn^.^ recognised the plaintiff to be tl.en (in Dec l! S the person entitled to redeem the proper y and L^ son interested in redeeminrr • n r^^ ^ P*'^" states that the mortgaged premises were worth Bernard Wklktr. Judgment 4\ 11 •I 144 BKROR AND APPEAL KEPOllTS. Btrawd Wtlktr. 1868. more than double tho sum found duo and payable to the plaintiff, Mrs. Washburit. " I am making exertions on his behalf," Mr. Thompson states in tluit nilidavit, "to raise the money." • • • "And I further say that I do verily believe that if tho time bo extended for the redemption of the premises for a period of six months, the said defendant Walker will bo enabled to redeem to same." Now, if the deed, niudo more than two years before by Walker to Bernard and Thompson^ were really intended to operate as an absolute sale to to them of all Walker a interest, which is what it pur- ports to be, then it would be altogether inconsistent with that state of things, that Thompson should, in December, 1863, be representing himself as making exertions on Walker's behalf to raise the money for Mrs. Washbnrn, in order to enable him to redeem tho property. Walker might indeed be liable under a covenant or bond for the mortgage money after he had parted with his equitable Judgment, 'nterest, but he still would not be the person entitled to redeem the property; and Thompson and Bernard would have been tho proper parties to tho foreclosure suit, instead of being content to appear as witnesses or friendly agents merely intervening for the protectiot' of Walker's estate in the land. But the other afBdavit, made in the same suit by Thompson a few day afterwards, is more clearly and expressly applicable to tho deed of October, 1851 ; for in it Thompson states on oath, clearly in reference to that deed, that by it Walker conveyed to them {Thomp- son and Bernard) his equity of redemption of and in the mortgaged premises, " upon trust, or under the agreement or understanding that they should sell the same, and pay off and discharge the mortgaged security held by the plaintiff, (in that suit Mrs. Washburn,) and the moneys due or to become due to him and Bernard under and in relation to their suretysliip to the City of Toronto. tnorot.llAr wifK oil onatc Xrr, ..^A *l,„„ X. . ,. i .-_ — ..^.^ ....^^ ineii tu pa,y the surplus of such purchase moneys to the said defend- ■HROR AND APPEAL REPORTS. 145 been in continuaco^t„'^,„!r.?^^r\ «""'•"" ^ ''«vo ^hat is Walker) onX iX LTs/'^^^ '""'^ Huron, and have had manvPoL ^^^''^''VK in Lake ^•'k«- to the said mortgaged SrLur""!'?'' ^'''^ ''«''»'■'«« authorised by him to net K'-r'^ '"'"^ ^ocn fully ceed in the^maUer of th J? "•"'''' '^"'^ *° P"""^ premises for his interes Iml '"'^'^'"P'"^'^ of the Jaid as on the behalf rfSf and "th.'^""! S- ''''"' "^ ^«» ^crnarrf. " ^'''" ''"'^ *bo said //iVaw (?ooi«(;jn Jt™:jifc,'t;r:'""» "^ ^'-^^ "-• -o .b.ol„.e,alo:b„,:' ° :"f' ""' "» PU'-cl.ascrs on an "er the ,„rp.„. ^ ZtJ'7JT'"'' ""'' ^ •amission that Walkrr .f.„j' • , '' "" ""P^ss right to redeem by tvi„?,^f '" """ "''"''''"> ''»'' « of oonrse wo^rd fen'draM t tvT "'""" '"' "'"■«" i. not i„oo„ri«o„t mlh that L^^l . ""'"""'"rj-. It did in this affidavit, at he w, " '•"'' , """' "' ■"> '■"»- •b« redemption of .'ho pre.i " VrS:'! °,"""" °f as agent for him n« ,; n '^^'^^er a interest and property might be prcveniod hv ■ " J""'"™ "'' ""= '0 .ell, or that thfvm °u\ ^ «'""« ""^ ■""o time '"rn ont to be nece^arf " "°"'''"> '' *"' ^'-'d l^ere can be no doubt that this aflidavit of Tl,„ "oald be sufficient to esl«M,-.i, ." "' Thompson ™e living, and a deftdttil'.T"''.''™-'''-' transaction of October 18S? ' '""-"■" ">« conveyance upon a si ^ „!.'«, "I-'" f"" »" -''oluto right in oons^dLatt':; h tb7'"^f^^"'°f »" intended to be used », » ! .1 '" ''"<'■ ■"" <"« <- in .hedeed t„sen'.:::C":^.'°f' "8 "- gran- .no .monn. „f .t,;, ae„and; to p ^ Zt TJ "'",'"'"« 'ke grantor, and it is .u.ci;ntn''o,^:'lthr^: VOL. II. 146 ERROR AND APPEAL REPORTS. 1862. Bernard V. Walker. in a suit against his devisees in trust representing the estate, who alono have been made defendants in regard to the interest that can bo derived under him. But it is denied that this affidavit of Thompson is evidence that can be made any use of to affect Bernard^ the grantee in the deed. If, on the face of the deed of October, 1851, the grantees could or rather should be regarded as joint tenants, then there are many authorities to establish that the admissions of one would be binding upon the other in regard to the property and rights held by them jointly. I refer to Taylor on Evi- dence, sections 674, 680, 681, 683, 686, 691, 712 ; Lucat V. Delacour, (a) Crosse v. Bedingfield, {h) KembU v. Farren. (^" can be plainer or more certain tan ^1 /°^"°^^>"S have been a sale J IZj] Zl'"'' *'» "-^ '» regarded nompson. The e„t™„n "^ " "'™"'^ "' point seems to be th« if ,^ '"'" "" "f «"> security only for one purpose andtl • "' " cnse, it must, for anr tbL! ,1. ""^ """''^ '" «« be held to be o for "n „ ® "P^'"' '" "«> "''^e, • That i> J^oouHt caiirtr ]°* ^""^'• statements made by y/J" I i v'^™ ""> That, however, ,vould seZZl'Jf ! ''°°'"- •ween the opposing tesiLly bu °d " ■"™"r '" --"«■ necessity must govfrn the 21 cTse star* *1 f was one transaction, which could not at Til "'" t:;n:.fX:;o^3r-;--^^^^^^^^^^^ P.n of the case I thinkTmrri ;tr:; «'" *'' of Pm^r V. Pr%. (a) " "^^^^^ *o t'le case Mr. ^«arH,, i^ ^jg treatise on evidence .h "that a community of interest or desrn ",.''?' -ke the declaration of one the decla^'i:" /l^J^*^^ "Thus," he says, "in the case where «...« others possess a community of intere L f • ' ,"' ««bject, not only the act and age 1 but thr^T^" tion of one in respect of ^Kt -ubi. V ^''^^'^" 147 143 EBROR AND APPEAL BEPORTS. 11 18fi2. makers of a joint and several promissory note that it ^'^^^ has not been paid, is evidence against all. Such an Walker, a^^^ission, however, ought to be clear and unequivocal." He cites as authorities for this principle, 11 East, 589, and 1 Maule and Selwyn, 249, which I have alreadyrefer- red to; and Whitcomb v. Whiting, (a) Unless, indeed, this principal were acted upon, the judgment of the court must, or at least might, in many cases be con- tradictory and inconsistent, and beyond question wrong in one part, if it be right in another. On the other hand, it is laid down in Mr. TayWt treatise on evidence, section 680, that in order to render the admission of one person receivable in cidence against another, it must relate to some matter in which either both were jointly interested, or one was deriva- tively interested through the other; and that a mere community of interest will not be sufficient; and he cites Judjment. a decision of Lord Ellenhorough at nisi priu8, in Jaggers v. BinningSy {b) where an action was brought against two defendants, part owners of a vessel, and an admission made by one as to a matter which was not a subject of co-partnership, but only of co-part-ownership, was held inadmissible against the the other. If it had been explained in that case, which it is not, what was the tendency of the rejected admission, we might havA seen that there was an obvious propriety in rejecting it, and that the decision could not be applied as an authority in the case before us. But whatever difficulty there may be in the way of receiving evidence of T/towjt?so»'« written admission in his affidavit, as binding 'per se upon Bernard, his co-tenant in common, especially in view of what is required by the Statute of Frauds, I feel the case to be clear on the ground on which the plaintiff's counsel put (a) Douglas, 662. (b) 1 Stark, Bep. 64. it on th has by sufficier took p; could n and tha tion of ] purpose plaintiff, Ifith publicly, made, tlj claims up the purp( any surpl had comp therefore, it might n the debt; put up at m the viev mere verbj port of the thing actm state of thi have let in real nature that what 2 was conduci posed. He part in ob Joseph's; U about it witi his request, Thompson t waiting, apnj procure the ] gage from th BRROB AND APPEAL REPORTS. sufficient reason .„ T'^^ , ""' "-""'aMion given . took p rat s Znv'r''," ^ '""""'™ 'l-h "'" oouldnothavebelntetf' l?^' '" °°""'°--' "^l, "■"" •nd that .he.:ir;Ve":„ olttLt t fh' '""^' I'on of parol testimony, i„ order to .,„l , ""^P" purpose the deed in anes.ioT u *■ '" '"'' "■"" plaintiff, WaZ ^ "' "■'» »»'''' V tho pubfiify'ltraJrAllar "■-^--''"ated "^e, that they heldTia" i?!: r/'ot 't^h '^ .07 surplus tt o-'tht be , ?"""'.' ""^ "'^'"^ ■"" had computed their ;? . ° P'"'""' ^ ""« *ey thcrefoTpt X;"'° »«*■-»■». and would! il might nolbesacri^inf ""'P"". i" order that t..ed'eh.;a?d7frird^?hrdr^^^^^^^^^ put UD at that nncnf ^ • t ®' "*^ ^^^n in fact .' t j^» :; a':27'e' uThV" V" "-" »»'• -r. verba, declaration of ^S.^rtrrTtoT" " port of the deed n «« i j u ^'O'^trary to the pur- fhiug actual^ le n t IZl "° '™'^'' ^^ =°- st.teof.hing'^^.obe nferredfrlrT'r "'"' "" have let in anv f„r,l,! , ? '^ ''*"'■ ""d """Id rca, „atro7the tZtn"^ rTatr "'■:' '^^ that what £„n<,rd actually didanH T ' ? "^ was conduct on his part st on«r'tha„ t ^ °''?'''°'' '"' pcsed. He allowed' n^': tllXl T' ""," part in obtaining the deed fm™ .f , • . "^ """P"' Joseph's; left him to maketb ''''"°'"' "' ^t. abou^t ;ith .he;:r„t^t:et\r:^rvr^''"'"' h.s request, and when Le arriL fer. T"'"'-°u TUy.on to negotiate the m tlr t .T'the 1, ■ TIr' waiting. i.nnr.,.««fi„ f^-r^ t, 7 ® plaintiff, procurTthf p,;,S ''\t;tld''ar7" '''°""' «.*. from the pi^tiff „po, i7^^t;x:::: 149 ,. M Jl 150 ERROR AND APPEAL REPORTS. 1862. to them a year before, to secure them against the con- sequencf of the liability which they had incurred on his account; and I cannot see why they should have desired to get this other deed for the mere purpose of security, if that were their only object, (which, indeed, is a difficulty in the way of supposing that the latter deed was meant to operate as a security only,) except that the mortgage of 1850 required ninety days' notice of any sale to bo made by them for the purpose of indemnifying themselves ; and they may have desired to act more promptly. But this result is plain, that Thompson, being allowed by Bernard to put himself forward, as he did in the matter, they came away with this absolute deed in consequence of what passed be- tween the three; and two years afterwards, when Mrs. Washburn was endeavouring to foreclose upon her mortgage, of much older date, the proceedings take place which Mr. Turner relates in his evidence. Upon Judgment all that is before us in relation to what was done in that suit by Thompson and Bernard, and the now plaintiff, Walker, for obtaining a longer day before foreclosure, Bernard seems again to have allowed Thompson to be the acting party of the two in whatever was necessary for obtaining their common object. Whether he did or did not know the exact contents of the affidavits made by Thompson, does not precisely appear; but upon the evidence before ua, I think no jury would hesitate a moment in concluding that Ber- nard was concurring in the statements made by Thompson, so far that he knew, and acquiesced in them ; that having a common interest, they were acting together in the common object of obtaining further time for the protection of Walker, as holding the equitable estate of a mortgagor, entitled to redeem for bis own benefit. The defendant, Bernard, does not pretend that he gave any intimation, while he was being examined in the master's office, that he and Thompson were the absolute owners of the estate. "I do not I'liKNUHS , '""'"• do.ng so except that I did not know much "Ju I matter; I -.0 no, recollect about mj evidence-t " ten je«rB ago; my memory is not very good"" ment/rde'by rirfri"; ™"''°""^ "-^ '""■ iispri *!,. ffi/ //«ow?;?8o«, and using, as much as he :nt:m:„?:fte:,t :,:;*"„:' ""■"- - to r*Hf he had absoiu.:,;'": tZyT^zr: Bernard „„„ affirms he did, »ith all his interest La and equitable, in the premises. ' ^ ' Mr. Turner swore that all three were acting i„ this matter in pursuit of their common object. "*»"'• The principle I now refer ,0 was carried somewhat further ,„ the case of I>re,eeU v. Sheard S p7^il where MtledaU, J., said to the jury, "Thel amei sergeant says that the defendants arf only lia ,e f defendant Pr,ee was present. Still, as on the first occasion, both defendants were present, and stated tha whTtheTMr" "]. • "7^'°" '' " "«•"• ^°" "'" ™"* Whether Mr. Prtce did not sanction and concur in the acts done when h. was not present." The act in tha case (the re-epcning of a ditch which had been filled ud was done by Sheard alone, in the absence of iVfe ^' It is reasonable upon the evidence of Mr. Turner and upon. .her testimony in the cause, .and considerinl.h^ pnvity between these parties, Thomfson and Jiermrd ;^^^;;sh«»whoj^,.a^ct^ ,h„„,a J^ (a) 7 CarT&PrieS. 161 1 i f r :• 1 ^'i\ 'A I 152 ERROR AND APPEAL REPORTS. 1862. Bernard T. Walker. Bernard as concurring with Thompson, in putting for- ward the Etatements contained in Thompson t aflSdavit, ' — ^ — . as the means of obtaining the end which it is proved they both had in view. The cases of Brickell v. Huhe, (a) Gardner et al v. Moult, (b) Boileau v. Rutlin, (c) and Johnson v. Ward, (d) are strong to shew, not that Thompson's affidav"'; signed only by him can be held to supply written evidence signed by Bernard of the facta contained in it, but that the putting forward that state- ment by Bernard, or with his sanction, is an act done by him quite inconsistent with what he now contends, that he and Thompson were to be, under the deed, the absolute owners of the estate as purchasers, without any agreement or understanding that Walker should be dllowed to redeem. And indeed his active intervention in the foreclosure suit, for the purposes for which he and Thompson did avowedly interfer \. would without the affidavits have been evidence to the same effect, less Judgmpnt strong perhaps and certainly less particular, but sufficient to afford ground for receiving parol evidence as to the real object in taking the deed of October, 1851. It was on that view of the case that the plaintiff's counsel relied in his argument, and I think rightly. Then parol evidence being thus let in, according to the principle constantly acted upon in such cases, we have the strong testimony of Mr. Spragg, the only subscribing witi ess to the deed of October, 1851, which may, as it appears to me, be confidently relied upon ; for besides that no attempt has been made to impeach his testimony, he seems to be in no manner mixed up with the transaction. Being casually a fellow passenger with Thompson and Bernard, on board the steamboat, he was requested by Thompson to go with them and see the deed executed; and his attention when they got there seems to have been the more given to the matter, from his being requested to make an alteration in the (o) 7 Ad. & Ell. 466. (e) 2 Exch. 665. (A) 10 Ad. & El. 464. (<0 6 Esp, Ca. 47. EBROR AND APPEAL REPORTS. «a,I the deed bi^solf, „d SZtiJrtZ' """'' ^^ w«a nol in the deed a, a grant o°b„t„„7vT TT ^^ objeeted to it on that acoonr 17 °, f f '"'"•'^••^ had been no sueh intention or «ncler,ta„din. n ,rl;t/ mmd, - .hat e wa» only baling thi, doed°a a e .7 and he was about to execute tl.o deed as a fi„!l j absoiute transfer ef a,I his rl,l.t in l" a d e^d .TJaXtli^tin X''onr''°?'™"^ aeedwhieh r.„„,.„ p.aeTd"So:^ I.tri' I « may suppose, have been ™„tent ,e iake the eon illTj"'" '.° """ " ''°*- - *ermght have" 3pipr:-L ■ rz?rh:h^:tiL::f-t™-{^:^ more secure that the understandin. o'n Zult ''"' about to convey would be more 00^:, ;trHed\r that the deed would net affect Wathr's nVl,t „f redemption; that he still would have a r ! o fdeem otherw,se the property would have been so Id to 2!; "■ab,h.,e3 that had been incurred • that Ti^uT sacrificed and urged this „ode o/s'ettl aT tfer! able. "I understood," he savs "it w,. . • money to pay off what ^s dueT'the placT and T .ab ities that were pressing. After h oLv^rat r the deed was executed." A^ain thi. »:,„„.' " n«,.™, when he produ^cer'thtdr," dTw"; for the purpose of raising money to meet lilMlili- rl was not said that TU,npson and Jiernarile^t, eel tte property, but to raise mo«ey on the properly.'" VOL. IL m ■ L f ,.i I 154 ERROR AND APPBAL REPORTS. Bernard ITalker. 1862. The witnesg Spragg speakg here of a transaction that had passed in his presence nearly ten years before ; and considering that he had no personal interest in the matter, and no previous knowledge of the circumstances which led to the taking of the deed, his testimony supports as nearly as could be expected in substance the plaintiff's statement in the bill, that the understanding at the time of taking the deed was that it should be and was taken as mere security for the baUt.jce that might be due to Thompson and Bernard on taking the accounts between them and him ; and that it was agreed that the indenture, though absolute in form, should be and was in fact a mere security for the purposes aforesaid. It supports also substantially the statements in 1 homp- aon'a affidavit, made on 19th December, 1853, that Walker conveyed to him and Bernard his equity of redemption in the mortgaged premises, uporl trust, or under the agreement and understanding that they should Judgment. Sell the same and pay off and discharge the mortgage security held by Mrs. Washburn, (upon which she was pressing,) and the moneys due to Thompson and Bernard under or in relation to their suretyship for WalJcer, and to pay the surplus of such purchase money to Walker. It has been objected that the case made out in evidence varies from that stated in the bill, and does not warrant the kind of relief which the decree gives ; for that the tendency of the evidence is to establish a trust, rather than a morti.age, that is, a trust to sell the estate and pay over to Walker any surplus above the debt due by him ; or a trust to raise money upon the estate, other- wise than by sale, in order to pay oflf the debt due. But take it either way, the substance and effect is that the land was conveyed, not absolntely and uncon- ditionally, but by way of security, as the bill asserts ; and whether the intention was to give power to sell the land for raising the money, or to mortgage it for the same purpose, Walker, in either case, would hold an interest in the property, and the grantees would not BHHOB AND APPEAl EBPOBIS. the L:;;i'Ca! "" ""^ "" '''''' '» p»y •"» tte Plaintiff Th.' "^ ^'"^ °™'' ""y PW^e'l' to thing but an absolute sale ^ "^ "^ °'°""* <"• ""^ Jr::u:tat:;:;er-'='-»^'''»^eo, It 1*8 true that the defendant liernar^J dn«= • i,- *b ,e,„i,e, „rz' .t t*:,™ ry-'^'"? witnees to everco„,e hi, unqualfl ddel „" •""«'" opmion abundantly complied „i.h here bv J' '". "^ tion «hioh Spra,,; evidencrreceTveaioIT t™" testimony relied upon. I „fer to 2 M.1 t ^°"'" eery, 680 (note i.) Maddoek's Chan- coat "^ °'"°'°"' "^ '"P^"' ""»" t« Oismissed with l-s^^»l that riTdiiT elf ;/r:;! If^^gA-d^taJemen^tc facts, „, .o say n,:;e.:a°„^ (a) 4 Bro. C. C. 472. 155 1862. Judgment. .>?;l ^t ,.■:. aia 1862. 156 ERROR AND APPKAL REPORTS. that subsequent reflection had failed to change the opinion which he entertained at the conclusion of the very able argument of Mr. Strong, by wliich he was impressed with the idea that the transaction which took place between these parties, if not an absolute sale was one of trust, the nature of which not having been evidenced by any writing signed by the party is void under the statute, and therefore that the appeal should be allowed, and the bill in the court below dismissed with costs. EsTEN, V. C, thought the decree pronounced in the court below was right, and that the appeal should be dismissed with costs. udgment. rpj^g other members of the court concurred. Per Cur. — Appeal dismissed with costs. [Draper, C. J., dissentiente.'] Evans v. Evans. Specific performance — Laches. In the year 1850, the owner of 100 acres of hvnd, with the view as was admitted of retaiaiag hia son upon the property and settling him in life, agreed to convey to him in fee simple 50 acres of this land, worth at least £150, upon payment of £5U, payable in six years without interest, and executed a bond for that purpose. After obtaining this bund, the son went to work about the country, and resided some years nt a distant part of the province, sometimes returning when oui of employment and residing with the other members of his father's family, and during such residence was in the habit of assisting in doing the usual work of the farm. Nothing was ever paid on account of the purchase money, although it was alleged the son was entitled to a credit on account thereof for services rendered. After the lapse of a period of about ten years a bill was filed by the son to enforce a specific performance of the contract evidenced by the bond, and a decree was pronounced in favour of the plaintiff. Upon an appeal to this court this decree was ve>erscd, and the bill in the court below dismissed with costs, unless the plaintiff !™'h3 after tobele.in,op„3esl;„,'t'"' ''''"'' '"'''■'"" c»n.i„„ed to reta r*. ™ «f"»'• '^'>"' bill defendant!: Z^:^! Zto 'T ■••'«"'-" thereon, such sums in oil °*^^°^ ^^0, with interest was due' to deil™ ^n' eTprer^th: ""1 ""^ "'»" agreed to be naid • nn^ . ^ purchase money -eon.rae.,r„:;:l-f-X:;^-Per^^^ oomttXd" b:."r:f,, '"^ ""• ""-■"■•"s «>e i-o i.. the prop It fo"^^^^ that his sole reason ri a ^""'"' '■"'"<■- ""-"l sell it for so s^ M ° . '"''"«""" for agreeing ,o to endeavourT; 1, . r "'' "! "" '''"'"'"f «" t"ew, ^ar., instead 'o :;::„? ?'? "" f'"""* °" 'he States or some other prt of S, *° '° ""' """^<' tba. plaintiff kad se:;;^"^!;::':^,^ 0!::;'"°' s:!ri" tr '^ «"« ''» -I'ttfrarz: been id d ' ha tpTaMff" "d' °" "" '"™ "' "'^ --sandeo.di.irritLTp;r::r 167 i'^v Statement 158 1863. ERROR AND APPEAL REPORTS. consideration money or taxes, and that therefore he (plaintiff) was not entitled to any relief. The answer further stated that, about the year 1850, and after the time limited for payment had elapsed, defendant set up the plaintiff and his sifter in a tavern belonging to defen- dant, where he remained for about a year, when he left, at which time he made a claim against defendant for boarding some of his wo kmcn, and that in consequence defendant gave plaintiff the note for .£30, at which time plaintiff did not assert any claim to the property, or to have the note credited on the bond, and which defei lant submitted was evidence of plaintiff having abandoned the contract : that the claim of plaintiff was a stale demand, and that by reason of plaintiff's laches the same could not bo enforced. The answer further stated, that on the 26th January, 1859, the defendant being in want of money, and sup- Buument posing that plaintiff had abandoned all claim to the property, had mortgaged the same with other lands to one Stephen a^. Lee and Allan Cameron, for ^900, of all which the plaintiff was aware, as defendant verily believed. Evidence was gone into; that on the part of the plaintiff, being chiefly with a view of shewing that he had complied with the stipulation agreed upon between , the parties of working for the defendant : one Evans, a relation of the parties, swore that about the 6th of February, ^861, he went with plaintiff to defendant in order to make an arrangement of the differences before suit, when defendant refused to give the deed, and said if plaintiff waited till defendant's death he would give plaintiff his share ; that the witness tendered defendarif $55, which was the balance due on the land, after deducting six months' labour ($66) and a note of $83 with interest on it ($19 ;) that on this occasion defend- ant stated ho hud uuered plaintiff $1000 and some farming utensils in lieu of the 50 acres ; that he would like to ] the offer. some tira plaintiff : a witness bond was that he hi ing impl« bond the '. defendant selling hi Matthews that she 1 about the for defendi her father he would [ after the bi settle and i had seen pi was given— keen back u inore frequ four or five heard plain! land. Othe that defends his family ; money (^IQi might get a the habit of at his fathei while there. The plaint his examinatl for work doa wages, which to get possess; IRROR AND APPEAL RRPORTS. r M plainliff l,,ed aftor getting the bon,!, . M,„ /,,,„ J„„ '■•" • "T" f" >"-"'*. P-voJ that in the u/ZrZ bond „a, g,ve„, plaintiff wa. ,„rki„g fo, jefrdan hathe ad hoard defond.n. offor tho'jlOOO d tm-' ■ng .mplemonts to plaintiff; ,h.t .t ■•„ ;''(,? bond the land «s worth ?1000. „„d .„.t ha Td he d . defendant .aj in presence of nlai ,t:" thn «!Hng hi™ the land to keep El::: • : "^™ Matthewa sister to pla ntiflF and callor ■ - \ .hat aho bad beard "plaintiff ^Vdlda^n;": nZ! •boat the land; plaintiff had boon working off a" d „„ her f r 1^7 "'" ''™'' ™' «-«" = 'ho l>aJ hea 3 her father apeak abom the bargain; ho always allowed !f.r., .*".° "° ""'" •" "-» P'"'"'*; about, year •fer the bond, the defendant said that if pl.i„,iff J^l settle and marry he might go upon the iLd; thaTshe ... Kad seen pla.ntiff working for defendant sinee t hot "" wa.g,ven_eo„ld„ot .ay how long; that plai ff h„d Jeen baok and left defendant frequently ; "ha e waa Aore frequently away than at home during he ,as four or five years, and that about six years afo she had hat defendant had always desired to keep the Ld „ his family ; that he bad stated he would ratb.r „!! .u -ney ,,.000, than break .he firm, aT Ir^^t ^.ghtget a bad neighbour; .bat pi..i tiff had befn in e habitof working for other people; that he staged :li":" ■■""'' "''°" »"' "^ -'-'"' worLd The plaintiff was examined by the defendant. On his examination he swore that the bond had been given for work done before 1850. after th- ho -a- ' ^ wages, which were to be applied to the land, which he wis to get possession of after a year. One witness (1^ 159 '- J^ I - (W P 1 ^t 160 EBROU AND APPEAL REPORTS. 1862. called by the defendant, stated that plaintiff had been living at the Grand River for about four years, and while there witness had a conversation with him, in which he stated that he tliought he would never return home ; that he had some claim against his father, but he did not like to put it in force, because he did not think it was his right, and his father was not able to pay it or suffer the loss ; he did not say what the claim was, and witness did not ask him. The cause came on to be heard before his Honor ' Vice Chancellor Usten, on the 25th of January, 1862, when a decree was made, by which it was declared " that the plaintiff is entitled to a specific performance of the contract in the bill of complaint of the said plaintiff in this cause set forth, upon payment of what shall be found due by the plaintiff to the defendant in respect of the purchase money agreed to be paid therefor, subject, Btatement. howevcr, to the mortgage security in favour of Stephen S. Lee aud Allan Cameron, in the said bill mentioned, and doth order and decree the same accordingly; and it is ordered that it be referred to the master of this court ft to take an account of what is. due by the plaintiff to t)ie defendant for the purchase money of the said land and premises ; and in taking such account he is to set off and allow against such purchase money whatever he may find to have been the value of the services (if any) rendered by the plaintiff fo- the defendant at any time subsequent to the date of the contract, and also to set off and allow against such purchase money any sum or sums of money he may find due from the defendant to the plaintiff upon any other contract or consideration, and also in li':-? manner to set off and allow against such purchase money and interest the costs of plaintiff to be taxed by the master, and upon payment by the plaintiff to the defendant of any balance which shall be found due to him upon taking such account, it is ordered that the defendant do execute a good and sufficient deed of conveyance in fee simple to the par » such co; in case defenda mortgag accordin order an charge s finding t money a: which sh aforesaid plaintiff not how( been so t: court dot! and of su From tl lowing rea 1st. £e( contract in by the par performan< 2nd. Be( court shouli The respi following re That the from, inasmi account whe payment, wh site provisioi fie performai would not in discretoa by 21 '4 jJs TO ERROR AND APPEAL REPORTS. the parcel of land in the said bill mentioned, bein. &c • such conveyance to be aettU^ h^ +1, ^' ' in case th/par«e/dWor a „1 !, 1 ' "-«■• "' ">« ""-rt defendant undereaXL.", / TT' ""^ "■" "'^ -.or.gageinfav„:XSl: alT^Zi'-^"'^ .ooording to the requirements thereof T^f"" order and decree that th,TJ j , " "'""'■ ''°"' oiarge said ™ r ' t and I ^^ "' ""'^^ ""^ ^i'- finding that the fr^nrdL' nXro'flhf " '"T money and interest is insufSeientTM . f""'*"'" which shall be foand dl! ° ^"'"""o ">e amounl •foresaid, it i rd 'e "th "thTd ; '"f"''"^ "^^ -"» ' plaintiff Ihe a Ju^of tt defi ^''™''""'/<' P^J ">o not however To^edr! ., ''"'""="''7. »"«!> deficiency beensoTrdaral-L'to Tpi^ff 'I'^r courtdolh reserve the eonsiderationofTtLd.' and of subsequent costs." ""^ directions lowtrrettt^r '"^ ^''-^- ^"^-'^^ '» '^» f»>- s._ contrlfrtr "";°°" '''°"''' ■'»"' ''-'-=<' *»' the Xj^^rdiarrr;:^— eorshfuirvrx:^ Lrx:;'ir--- '-» J»!"i'n:»u'r:: " t^fstr ~r?" "^^^"''■' account whereof has noVr ! T^ ",' °' """"y' "■' discr«fA. i: !v. "® judicious exercise of ^' ■ d>8cretoa by the court below, to whom the same 161 i ■• m i 21 VOL. II. pecu- 162 ERROR AND APPEAL REPORTS. Argmnent 1862. liarly belongs, and that, therefore, there is no error in the said decree. That there was no abandonment by the respondent of the contract whereof specific performance was decreed by the said decree in the court below, and no evidence of any such abandonment was furnished or offered in the court below. That there were no laches to disentitle the respondent to the relief granted to hira by the said decree. That if there was any error in the said decree the ap- pellant ought to have caused the same to be re-heard before the full court below. The appeal coming on to be heard, Mr. BlaJee, and Mr. G. B. Boulton, for the appellant. Although the lowness of the price agreed to be paid for the land may not of itself be sufficient as a ground of defence, it is certainly material when taken in con- nexion with the other considerations which arise in the case— such as settlement by the plaintiff on the property for it is perfectly clear from all the evidence that this object was the main if not the sole moving cause for the father agreeing to convey to the son. On this under- standing the bond was executed, and this may be shown by parol as a defence to a bill seeking specific perform- ance.— ^ecJiMwo?! ' V. Dukes, (a) Myers v. Watson, {b) The application for and refusal of possession occurred as stated by the bill, in 1851, was a sufficient repudiation of the contract, and yet no proceeding is taken to enforce the contract for ten years afterwards : this was such laches as should disentitle the plaintiff to any relief in a court of equity : Hook v. McQueen, (»»« » Provi- given .0 Wn, „p„f 4^: :;tL:tu7d 'Z" '"' """ measure a gift. ^ ^°"^" ^e m a great twraVrit::*::: r'v'™»«'^ «s«-' .reding ' «>.e son is^chargoa t;^^n :. ,lr"-°'^'™'^' """^ what he was bound to df T„ . '" ""''"'"S •» -I" within the te^s of hi, fathl'boTd" '° '""' ■""'''^ father aLaeelt it onfr?"' """"^ '" "»""""^ •ftermrds agreed to a 2 f ' "'"'"'' "«' <■"""=' fO. Itisver;1;:r,;";-J;"j;.o;ent of the that IS given i, contradicted *° ""'""'» The cases which are referi-«J .» • n „ Speoific Performance, ch Z 2^ ^"^'^ "■"''^ °° shew that the court sLuW no ,e^i T -P "~"S '» tiff to enforce specific nir' ""^ "> "«' Pl""- after a de.a, orZtZ'^Z^LTt f° '"*-• not in the meantime been i^ *° ''''""''f has no improvement and bt '!""'?""'• ""'' >"" -"ade •heagLmen taftrhc lid t°l ^^'™^ '° '"'"''^ •"at his father, in consc'en'ce f hVne";"' '"" ''°"'°' ■^tended not ,o consider the . «^''«™' """"J"'", whieh had been so lonX'ta lTTb°/-''r' '" '"''' specific agreement to LXtT'"' \'"'""' "^ offered no alternaUve. '""■' ' ''"'"S'' i" i^ad I ""■"'= *« O-ee should b„ reversed, and th» "'i!||! \ i? ■ r^ Judgment ERROR AND APPEAL REPORTS. bill dismissed with costs, though, if my brothers conciv, I should have no objection to follow the coursf taken i;i Spurrier v. ITancock, (a) by adding, " unless within one month the plaintiff should deliver up the agreement;" and in that case without costs. Draper, C. J. — I can see nothing in thio ca-;;; to take it out of the genera' rule, that tiio specific performance of an anrreemont for the sale of lands should bo deti ted. I think ";r ihe reasons assigned by the learned Yice- Chancelloi, tho »licreo i^iiould be affirmed, and the appeal dismi'^'ied mt-h. costs. Este;t, Y. fj. — I think the decree pronounced by m? in favour of the plaintiff should be affirmed. The est,'i,te was sold at an undervalue by the father to a son, who had acted towards him in a praiseworthy manner, but for a substantial consideration, and this circumstance can therefore form no bar to a specific performance. The bond is proved, and constitutes a valid contract within the Statute of.Frauds. The only defence, then, which can be raised to the suit is abandonment or laches on the part of the plaintiff. The defendant was anxious to keep his son in the neighbourhood, and see him married and settled. I am satisfied that he never intended to rescind the contract. The plaintiff paid a substantial part of the consideration, and at the end of the year asked for possession ; when the defendant said that if he would marry and settle he would admit him into possession. The plaintiff was not prepared at that time to marry, and time passed, the plaintiff and defend- ant having dealings with each other. The defendant never notified the plaintiff that if the contract was . j performed he would rescind it. He brought the Imi into cultivation, i ^ >ding, probably, the plaintiff *o Mve the benefit of it ' on he should settle. Do ;;.k- uas time the plaintiff left the. bond in the hands ot 7 )rge JEvans, with instructions to press it, but he did r'-f. av;? (a) 4 Ves.jr. 667. Mrs. i! from tl defends made a pJaintifl stances parties, laches e from the to the d( evidence the truth exhibited mony. j tran8acti( have acq accepted I think I Haqar' views expr and the bi T-. K. & Co., tracted verl was erectin, was to be p province on power of att during his a was greatly secured for ( of inducing a previous ai gage of the payment of instrument E until some tii the decree of this mortgng hotel; their material uiKi.-i Jaeguu v. Wort from the pres« The bill i ERROR AND APPEAL REPORTS. Mrs. Matthews took it awav On .i, , • .« from the Grand River L V .' P'''"*^^'« «*"rn defendant, not insfs tn' t atT''^ ^" ^'^'"' ^"'^ *^« -dea v^r, adva t ^^^^^^^^^^^^ pWntiff. Upon the 22 "//'?'" Promise to the '^tancesofthecasrandther.ir"'^""-^ ^^^ ''^''-^' partiesJthinknoaUnl ^n^^^^ laches exist in the nr.T?''"'''"^"^ sufficient ^- the reiie^fheXn T.: ^^^ ^^« P'"'"-^'^ to the declaration of the plaintiff '"^' ^^'''g^* evidence of ^..,, althou^hrl-nl 1"'"^' ^" ^'^^ the truth to the best of I,?. " "'^.'^^ ^''aa speaking "■ony. Sh,, ;,a, only ten ye'"! 1 'T'"« *""• '«"■ tr.n,ao.i„„ which shVrlT tI'V ' S'"" "^ "■» lave .cq„ie,„ed in the demand „f. J ",''""' ''"'°''' •ocepeed .he „„„ey ...iohtl'del't ht """' ""' I.I..nk.heappea!.ho„Mhedi™i.„<,,„„j,i,^ ' . Haqakty and Morrison JJ ,„ . newsexpressedbythepresident.h'. T'"« '" ""' .»^.hehiUinJeJ.,:tXrh'erir' T K&c ^^'^''^'^^^ ^- Thompson. province on nccount of ill benltl . • ' "■ "f'«rwnrds lefi .hi« ''" '" *^ «-" ^='". - amended, ,., ly 167 1862. Jadgmant •4 168 ERROR AND APPEAL REPORTS. 1862. James E. Thompson, David S. Keith and Cliarlea C. ^[J^^^j^ Thompson, against 6?eor^e Worthington, Calvin Mc- Thompson. Q^^^^^^ ^"^^ Others, praying, under the circumstances therein stated, and which are clearly set forth in the judgment of the court, that the personal representatives of Thomas Davidson (defendants to the bill) might be ordered to make and execute a mortgage similar to the one which had been executed by Stevenson as his attor- ney, and pay off certain incumbrances due to others of the defendants ; and that defendant McQuesten (a mortgagee in possession) might be ordered to deliver to the plaintiffs all the goods put or placed by them in or on the hotel and premises in the bill mentioned, subse- quently to the death of Davidson ; that the defendants might be restrained from using or permitting to be used the said goods and materials, and for further relief. On the cause coming on to be heard, before his statement, honour Vice-Chancellof Esteti, a decree was pronounced directing " that the defendants to the original as well as to the amended bill do forthwith deliver to the plaintiffs at the Royal Hotel in the city of Hamilton in the pleadings mentioned, all the goods placed by the plaintiffs or their servants or agents in or about the Royal- Hotel subsequent to the 30th day of December, A.D., 1857, and which remain in the condition of mere chattels ; such goods to be ascertained by the master of this court at Hamilton, in case the parties differ about the same. And this court doth declare that the said plaintiffs are also entitled to such goods as, having been so delivered subsequent to the said date, and having been affixed to the freehold, can be removed therefrom without injury to the inheritance. And it is further ordered that the plaintiffs be at liberty, at their own expense, to remove the same, restoring the premises as nearly as circumstances will admit to their former con- dition. And this court doth declare that the said plaintiffs are not entitled to such of the said goods as cannot be removed without injury to the inheritance as against paid hi defenda James j do forth up to an to be ta and as t hearing give cos parties a occasion hereby d: after the goods as inheritanc question c plaintiffs t From tl making th tiffs respor 1st. Be( sufficient re David S. . and the Co fere, or, if i case for th( 2nd. Bee fixture becai thereto was agreement i 8rd. Beca the said dec result of sue] the same pos: in fact. 22 ERROR AND APPEAL REPORTS. do forthwi h pay to tho plaintiffs their costs of this suit up to and inclusive of tho fomer hearin. of 1 ,ul rnd'aVrtleV'^ T'' '' ''' ^^^^ - ^^^l ana 83 to the proceedings subsequent to the origina hearing of this cause, this court do not th nkfi o g.ve costs to any of the parties hereto; an all th parties are to be at liberty to apply to his court a occasion ™ay require; and the costl of the ref e'nc hereby directed as to the said goods are reserved uiUi after the master makes his report. And as to such goods as cannot be removed without injury to the inheritance, this decree is without proiu" ice to anv question of compensation or otherwise T between he Pl-ntiffs and the estate of the late mmas^I^o^^ 169 1862. •MoQudttea T. Tbompton. From IhU decree the defendant McQucstcn annealed «.ak,„g the other defendant, to tho bill and thS m respondents, assigning as reasons for sueh app!al- 1st. Because, as to the pure chattels, the only and JJavid S. Keith, and Charles 0. Thommor, W .iuJ and the Court of Chancerv hn, '/.'y'°'': '^ '^^ ^^"^^ fere or if h >, "^"^"^^f ^J ^^^ no jurisdiction to inter- Ijf I ' «"ch jurisdiction, this is not a proper case for the exercise thereof. ^ ^ 2nd. Because, as to all fixtures, the same upon their fixture became tne property of the appellant, whose tiUe thereto was not and could not be affected b; the alleged agreement under which tho same were affixJd ^ 8rd. Because the alleged mistake in fact, upon which he said decree is founded, could not affect VeWl esu , of such fixture, and the parties are practical ITn the^same position as if there had been no Tuch mistake 22 VOL, II. Staiement. t .!; 1 ■ ^K -pi ■.I'M "m m EURO IXAL KEPORTS. ■ \ 1863. 4th. Becaiiso the agreement for a chattel mortgage ^^^jj^ was as to fixLurea manifestly void in law ap^ainst this ▼■ appellant, and therefore no equity can be raised in TnompMii' r 1 i t favour ot the respondents, Jamea E. Thoinpaon, David S.' Keith, tinA Charles 0. Thoim ., ... \,^ ground that the 3aid agreement turned out void on other grounds. r)th. Because the respondents, James E. Thompson, Da:: id S. Keith and Charles C. Thompson, affixed the said goods with a full knowledge of the appellant's legal rights, and of his intended assertion therrof, and they shoiild not be relieved against such rights and their assertion. statement. 6th. Because the said decree is bounded on rights al- leged to arise in respect of an agreement dated on the 6th day of January, A.D., 1858, and the relief granted should have been confined to goods -supplied on or after that date, whereas the said decree extends to all goods supplied on or after the 30th day of December, A.D., 1857. 7th. Because the Fiid decree f" ould have directed an account or e; (iry a;j 'o what, ' any thi \g, is due the said respondtuis, James E. Thompson, David S. Keith and Charles C. Thompson, in respect of the goods supplied by hem. ^a" should not have directed their unconditional restor;;/ion, but shoui i have reserved that question until after the state of the oncounts had been ascertained. 8th. Because th said deor sh 'd have directed the respondents, Jawjtjs J57. Tl^.ipsou, David S. Keith and Charles C. Thompson, upon removal of any of thi said goods, to place the premises in the same condition in which they formerly were. 9th, Because the said decree should have provided, but does not provide, any means for carrying out its provisions, by ascertaining what fixtures, if any, can be removed without injury to the inheritance. EnROR AND APPEAL REPORTS. 171 The plaintiffs assigned, in support of the decree, the 1862. toJJowing reasons : ^— v— ' UrQueaten 1. There is jurisdiction in equity as to the pure ''''"'"'"• chattels, and this is a proper case for the exorcise thereof; and if there .s a remedy at law, it is not au adequate remedy under the circumstances of the case • and oven assuming that there were no jurisdiction in equity in the case of pure chattel... there would be jurisdiction m this case, because of j, .. . being fixtures and not pure chattels, by reason whereof jurisdiction 18 gi en as to the whole. 2nd The fixtures did not, nor did any of them upon their fixture, become the property of the appellant, but tfc« property always remained in the respondents by vmn. of tho agreement uuder which the same were ftfflxtu. » > ''•:i'\ 8rd. :o mistake in fact could and did affect the result of sud x-tur.s, and but for such mistake the fixtures would n. ave been affixed or the goods formincr such fixtures been delivered, and consequently the parties are not in the same position as if there had been no mistake in fact. 4th The agreement for a chattel mortgage showed the intention to preserve the subject matter as chattels and not to allow the property to pass; and such intend tion must be carried out, not only between the parties, but also as against the appellant; for, among other reasons he did vm lend his money nor was he other- wise induced to alter his position because of the subjoct matter being supposed to become fixtures, and particu- larly the appellant would have been in as good a posi tiOL as he is if the said subject .natter had never been put upon the mortgaged premises. 5th. The respondents were not aware of the ap. statement «.■♦. 172 EUROn AND Al'PEAL REPORTS. 1802. pollant's legal ri^lif , or of liis intcnilod assortion of ]JJ^^^^ thorn ; but if tluy were, they ought not, under tho Thompaon. circumstiiiiccs of this case, to bo precluded from the relief granted by the decree. 6th. The relicfia not founded solelyon rights in respect of the agreement of the Gth January, 1858, but the same relief would have been granted under the circumstances of this case if no such agreement had been made ; and the respondents, James E. Thompson, Charles C. Thompson, and David S. Keith, rfclicd and stid rely on the circum- stances of this case to entitle thorn to the relief granted ; and thoy also relied and still rely on the said agreement, together with the other facts in the case ; and in either case the said respondents are entitled to the relief as to all goods supplied after the 30th December, 1857. 7th. The mortgage to the plaintiif did not operate to Butement. vest in him any property which was not the property of Thomas Davidson ; the goods in question, whether fixed or not, never were the property of said Thomas Davidson; nor were the respondents wrong-doers in affixing or placing them upon the premises. 8th. Even if the said goods did become at law the property of the appellant, tl)o respondents arc in equity entitled to a re-dtdivery of them, unless the appellant elects to treat them as goods sold and delivered to him, which he ban not done. The administrators of Davidson also assigned reasons against the decree, in addition to those assigned by McQuesten — that they, being mere tenants-at-will of MoQuesten, had no power or authority to deliver up the said fixtures ; and that they were improperly ordered to pay costs before it was ascertained whether t! property was put into the hotel before or after the 30th of December, 1857, (the date of Davidson's death,) and before the final result of the suit. ERROR AKD APPEAL REPORTS. J^g Mr. Proudfoot and Mr. lilake for tl.e appellant. 18W. «nt«, I'hotnpaon ^ Co. McQuMtMl T. ThoapioD. Inn'ollfl "' '■''^''■"^ *^ ^" *'•« '^••«"'"«"* of this P or of tho Cty Hotel in Ilumilton, which was death, had been m negotiation with those plaintiffs for a large quantity of furniture, to be placed in tho hotel ; but he had not entered into. a contract with them, o^ g.ven any order for the work, before ill-health obliged hnn to leave Canada and go to Cuba, leaving S^tevenson, h^ general agent, to manage his affairs for h,m in hi absence, and -in particular to do what might be neces- Cily notX- *° ""^"'' '"'^ management of the Judgment. «nf ^'% ^.! ^"^ ^°°'' ^''''''''^^ acting under his power-of-attorney, and in ignorance of Davidson's death, continued to negotiate with Jacques rf- IJav for the purchase of furniture; but before the delivery of the furniture, in January, 1858, there was no binding contract between them. In the meantime D.vidson had died m Cuba; and the question was, whether the contract which Stevenson had made in January or February, 1858, when he gave a chattel mortgage, in T o^T^ ' P""''P'^ I>avzdsou, wlio had died on the 30th December before, was bind-ng ,ipon Davidson's estate. The Court of Chancery determined that it was not The prayer of the bill was, that it should either be declared that the title to the furniture had not passed out of the plaintiffs, and that the defendants might bo ordered to restore the same to them, or that the defendants (the a^^ninistrators) might be' ordered 'to (a) 7 Grant, 192. 174 ERROR AND APPEAL REPORTS. P-il: 1863. execute a mortgage upon the furniture such in its terras )TT'^ as Stevenson had executed in the name of Davidson^ Thompion ^"' ^^'^^ Davidsou was in fact not living. The judgment in that case was, that although the court could not decree specific performance of a void contract, yet they must consider that the contract was void only in consequence of a mistake common to both parties ; that the defendants, (the administrators of Davidson,) who had set up that defence, could have no right to retain the furniture, which had been delivered to them under a void contract; and that justice required that the plaintiffs should be placed as far as possible in stahi quo; and they ordered the administrators, who had taken possession of the goods, to deliver them back to the plaintiffs, the vendors, and to pay thdir costs of the suit. Judgment. There can be no doubt that that decree was just, and that the only question in the case was, whether the aid of a court of equity was required or could properly be given. It was contended that the plaintiffs should be left to their remedy at law. Here we have a question of a similar nature in some degree, but varying in its circumstances, growing out of the supply by these plaintiffs of labour and materials for fitting up the same hotel, and supplied in part before Davidson's death, upon a contract made with himself, and in part supplied after his death, upon a contract, as the plaintiffs contend, made by his agent Stevenson with the plaintiffs, after Davidson had died in Cuba, but , before information of his death had reached Canada. In this case also other considerations present them- , selves, from the circumstance that the goods supplied by these plaintiffs were put up by them in the hotel, anu in such a manner tliat, it is contended, they are fixtures, and have become the property of the appellant JERROR AND APrSAL REPORTS. I75 Sr^l' \\ f'""^. ^'''^'''' ^""^ ^°"S before mort- 1863. gaged the hotel for advances. This difference between Ww the present case and that of Jacques .j- Hay against ""'".^•*'" the administrators of Davidson, gives rise to several "''"°'"°- questions. The labour and materials supplied by these plaintiffs were applied in fitting up the new hotel with gas-lights steam fittings, bells, and water closets. The work h appears was begun "pon a contract made with 7>a.^Wo« which the plaintiffs were engaged in executing atlh t I: of his departure from Canada. Soon after ho left Canada his insolvency became generally known ; and the plain- tiffs not being paid, as they should have been, according to the contract for what they had done, suspended their work and would not go on, till Ste.ennon, the agent, on the 6th January, 1858, agreed to give them, as h°e af er" wards did on the 28th of January, a chattel mortgage on the articles they were to supply, and to allow them j . . to remove them from the building ff they should not b^ "'" paid according to the agreement which he had made with them m Davidson's name. Davidson having died some time before in Cuba-viz on the 30th December, 1857-though neither the plain'! Uffs nor SUvemon were aware of that fact till the 4th February following, the question is, what are the rights of the parties under these circumstances, first, as to the articles not affixed to the realty, (if there were any which should not be so regarded,) and next as to those which are nxtures ? We do not see the deed of the 28th January ; but that cannot be material, since it is clearly void and of no effect, being executed in the name oi Davidson by Stevenson as his attorney, under a power-of-n^.n^.i which had been revoked nearly a month before by the death of the principal. The written agreemen'^ or understanding, however, between Stevenson and these i 176 ERROR AND APPEAL REPORTS. 1863. plaintiffs, which this chattel mortgage was intended to M^Wte^ ^"^^'» ^"^ signed by Stevenson in his own name, and is ao,i«,n. *8 follows jkodgmeiUc I "Hamilton, 6th January, 1858. " To James U. Thompson. "Sir, — I undertake that for whatever work and materials you do and find for Mr. Davidson's new hotel after this date, I will give you a chattel mortgage on the materials for the value of the work and materials, and also assign to you sufficient rents, and also the chattels to be sold by auction, as collateral security to cover said work and materials." (Signed,) "James Stevenson." The mortgages which Davidson had given upon the hotel and premises to MoQuesten are not shown to'us. From what appears in the case, and was said on the argument, I assume them to be mortgages in fee, given some time before (in fact in 1855) to secure advances that had been made, and that should thereafter be made, to Davidson^ for enabling him to erect and furnish the hotel. Davidson's interest in the hotel I assume was a freehold interest, but I do not find that stated. First, then, as to any articles affixed or not affixed to the freehold, which were delivered in Davidson's life- time, for which the plaintiffs have not been paid, they must of course take the chance of recovering from Davidson's estate. They had no lien on the goods, having delivered them, and not, as appears, upon any agreement with Davidson that they should have a right to reclaim them if not paid for. 2ndly, as to any delivered after Davidson's death occurred, and before it was known in Canada, I gather from the statements in the bill that the plaintiffs, on account of Davidson's failure to pay, and the apprehen- sion of his insolvency, had ceased to do work or supply articles for the hotel before or just about the time (30th Decen and af taking before, plaintii materit think, Davids receivir ing thei executi( What death, a my opin found ur just as il It was, a for carrj; them to 1 portion o in David. had recei The co; in the bill terms : "That: the manne and artich in the wav bell-hangir work shoul should be t No objec ing upon 1 could have administrat 28 ERROR AND APPEAL REPORTS. 177 and after the 6th of January, when the written unde'- ^-v-' taking was given by Stevenson, or perhaps a few days "^""^ nllYn7'ff"^r/ "''^"^ «g'-eement to the same effect, the """"'""• pla nuffs had resumed work and continued to su^p y materials. In domg this they must be looked upon I think as proceeding under the contract made with I>av^dson in h,s life-time, being content to do so upon receiving Stevenson's written guarantee, and thus waiv- ing their right to rescind this contract, and stop in its execution on account of default in payment. Whatever materials they put in after Davidson's death, and up to the completion of their work, must in my opinion, be considered as work done and materials found under the contract made with Davidson himself just as If no such interruption of the work had occurred' It was, as we may suppose, work necessary to be done for carrying the contract to a completion, ^nd entitling . . hem to be paid for it, and necessary for rendering af "^'^'^ portion of their work of value which they had exfcuted m Davidsons hfe-time, and on account of which they had received payments. ^ in ^^kT!''^ "\'^' P^''"'^'^^ ^^*^ ^^'^'^'0^ is stated terms "' "''^'^ °"^^' ^"' P"'*^''"^*^ '^ its " That is, to furnish, put up and supply the hotel in the manner required by Davidson, withall the material and articles which could be furni'shed by tt pi aS in he wa^ of their trade, which consisted of pCbin? bell.hang.ng, gas and steam fitting, to be paid for as tffe \\ f l'"l'' r'^''''> ^"^ ^s the goods tS be furni hid should be delivered at the hotel." lumished No objection is taken that this contract was not bind- ing upon Davidson, under the Sf' t„tp of F ^ could have been taken, I apprehend, with success. The adaunistrators have in their answers admitted it, and on VOL. n. i , i ' li'. 178 ERROR Ai;» APPEAL REPORTS. 1862^ the side of the plaintiffs it has heen fully carried out. McQu«ten ^' ^"^ binding also upon Davidson's administrators as Thomi,«,„. ■'^ell as upon himself. The plaintiffs have doubtless their remedy against Davidson's estate by action against his administrators, just as they would have had for any amount of ordinary moveable furniture supplied by them partly before and partly after the death o( Davidson, upon a contract made with him in his life-time, but which during the progress of it they had for a time hesitated to proceed in, but had resimed on receiving assurance from himself or his agent that their payment would be made secure ; and so long as they did waive their objection and go on with the contract, it would make no difference, I think, as regards their claim upon Davidson's estate to be paid the whole of their demand, and to hold his administrators liable, that their security for payment had failed in con- JudgmMt. sequence of Davidson's death having occurred before the new stipulation was entered into. I do not think that the plaintiffs could be told that what they did after they resumed work, about the end of December, or beginning of January, was upon a new contract with Stevenson, and that they could only look to him, and had no claim upon Davidcm's executors. Stevenson, by his written engagement of the 6th of January, may have rendered himself personally liable to the plaintiffs, that is, I mean, may have incurred by the terms of that writing a per' sonal liability, from which the death of his pHncipal would not relieve him. But the plaintiffs have good reasons for not being content to be referred to their common law remedy against the personal representatives of Davidson, or against Stevenson, and for desiring the aid of a court of equity to obtain a remedy more likely to be productive. If they should not be found entitled to any such remedy as the decree appealed from gives them, or as they have asked for^ their case will be a hard v.„..j ,- „,^.,... .^ .- .-.is.ij.-c suiu uuu ly tnem lor tiie work and materiala which they have supplied. McQuesten, ERROR ANr APPEAL REPORTS. 179 in hig answer, expresses his belief that there is in fact 1862. little or nothing due to them ; and it is an objection to ^-v— ' the decree, that it does not, as must have been intended, ""^r**" provide for ascertaining what debt, if any, is really ^ue """"""""■ to the plaintiffs for labour and materials, before they can obtain the restitution of the materials. Whatever may be the truth in th^s respect, and admitting even that there is such a large sum as $12,000 still due to the plaintiffs, as tney asst rt, and t*hat they have little certainty of being paid if they are confined to their legal remedy against the administrators of Davidson, or against Stevenson, still the case would not be harder than cases which are constantly happening, where a merchant sells goods upon credit, and before the credit is expired, or before they are paid for, they are seized by other credi- torj of the vendee, and sold to pay his debts to them ; or where a man has built a house for another, who dies before it has been paid for, leaving an estate which turns out to be worth nothing. o Judgment At any rate we cannot strain the law in order to protect thy plaintiffs from loss arising from the common cause of the insolvency of the persons with whom they had contracted. There are well-founded objections to what the plaintiffs have prayed for^ and to what has been decreed in their favour. 'A I The case of Jacques ft ffat/ v. Worthington was free from any such difficulties .s ouc.i in this. It was fouud there that the articles had no( been sold and delivered upon a contract with DavUkyn. but on a contract with Stevenson, supposed (it is vrno) to be made with him as the agent of Bavidsov. but not so, in faofc ; for his prin- cipal wag dead, and could no longer be represented as a contracting partv'. It was assumed, therefore,, that his estate could not be 180 ERROR AND APPEAL REPORTS. J862^ made liable. Whether Stevemon could not have retained MoQuMtan *'^^ goo'^s, if he had chosen to pay for them, was not Thompm "»a<^e a question ; nor whether he could have been made personally liable under the circumstances, which I think he could be. If the goods had been of a perishable nature, and had perished in the meantime, so that they could not be restored, the case of the vendors would have been hard indeed, if neither the" estate of the principal nor the agent could have been made to pay. But no such questions were made; and as the estate was held not to be liable, and to have no interest in the goods sold, and as Stevenson did not take them, nothing could be more just than that the vendors should, at least, get the goods back, for which no one was held liable to pay. But in the case now before us, there was a contract made with Davidson that extended to and covered all that has been furnished, and though the executing of Judg»ei>t that contract was suspended for a few days by the plaintiffs, and though it appears that Davidson had been m default upon it, so that the plaintiffs might have declined finally to go on with it ; yet on being made secure, as they thought, they did, in a short time, go on with it and upon such an agreement as shews that they were executing the work not for Stevenson but for Davidson, as they supposed, that IS, upon their contract with him, which they might do notwithstanding his death. The writing of 5th January, 1858, shews that Stevenson only intended to make the plaintiffs secure by undertaking to give them on \>M(o{ Davidson, a chattel mortgage on the things as collateral «ecwr%_col]ateral with w^at? with the contract between them and Davidson, on which they had hitherto proceeded-so far as the being able to give this collateral security depended upon Davidson continuing in life, who was then in a distant country- the plaintiffs must be taken to have trusted to that. r -. ' ^^^"^ security was, at all events, security m addition to what they had before; and, ERROR AND APPEAL REPORTS. m Thompton. pleted their co„.r„„t and .heirw rk d 2 or did ,T" -.eriaU ,vl,i.h .hey put i„ becZe Ihe propo t Tf' j! ti*T nhi:"Xr '"^ '""'"■'^' °' '-' ^^'--^ thJetdrf' D "' '^''"'T '" '^^" "" "'•I' ''»°« after the end of December a, done npon a new eontract, and and in no manner m execution of the former • h„V r 7 not look upon it in that liiht If n ? ' , ''° i« default L his paymel'tis a efeTt: tt i^° ' . « power of the plaintiff, to rescind" the otr'ac. anl op where they were; but they did determine not 'to „ "^ so, and tney went on, as I consider, under the contract Hanng received the collateral security thai TtLS It seems to me that the p'-ooertv I'n nil tu . ■ ■, P«Unto the hotel, by the ^^TlZ^, t,^:*:::f' tion of gas or water, putting up bells he.fi„„ f * or o.her work of that'ki«d,\efam Le ^Ly ^2 estate, as being furnished upon a contract with n„ t whtch did not cease with his life, bu Iwch :t:' onal representatives are liable, and these; airtiff'ia'u; to t em, on the principles which govern all such „t ", And I do not think that the property can be dl es d by any order of a court, and such things or p r s „f ^mg, as were delivered and put up after' the dea^ of f::t7: ;r "'ti^!- t-l -"=» --O -een r a« to r..'7 c r^ , '-'* '^"*^'' * separation in reeard to work of th.3 kind might be destructive of ^he value of that which remained, as well as of that takea .■,♦1 i' .' "m:f^^M ' 182 ERROR AND APPEAL REPORTS. T. Thompion. 1863. away, or, at least, very injurious to it; and though this ^ry'^ would be no reason for dcr.ying the equitable relief, if the plaintiffs were righj in what they had contracted for, yet it furnishes a strong reason against going contrary to strict legal principles, in order to protect them against a loss that all persons in business of that nature are subject to. If the materials furnished since the death oi Davidson belong to his estate, as, for the reasons I have stated, I think they do, save only as to the claim of McQuesten and others, in respect to their being fixtures, the plaint- iffs' bill should be dismissed; and it is incumbent to con- sider the case in reference to McQuesten' s interest. I will only, therefore, say as to that part of the case, that at present I consider that McQuesten, as mortgagee of the hotel, now in his possession, is as much entitled Judgment, to insist on being protected in the enjoyment of whatever has been affixed to the hotel, so as to form part of the realty, as he would be if he held the absolute estate, which in law, at this moment indeed, he does ; and that he would be so entitled in respect of fixtures put in since he took the mortgage, as well as in regard to any that were in at the time. And I apprehend that right of his would be found to interfere with the relief intended to be given by the decree to a greater extent perhaps than was contemplated by the learned judge who disposed of the case ; for in a question-concerning fixtures in a case of this kind, not involving tlie condition of trade fixtures as between landlord and tenant, arid relating to fixtures of such a description as those under consideration, I question whether we should* find ourselves warranted by the doctrines which are now maintained — in treating all articles as chattels that have not been actually affixed to the freehold — or, that having been affixed to the freehold, can be removed therefrom without injury to tbe inheri- tance. We should be bound I think to consider that many things that are in common use, as parts of some ERROR AND APPEAL REPORTS. 183 ' if .cm. casosX ::;:;; :„"";•"«• "^ '■■:« »>,„ i„ "-»- fixtures, fr„™ wZ „ot„ XT";, "'l"'' "™ ''""^ "ot .1.0 .e,s fi,.„r J and 'f„;, '„ ° '■>» '""""^> »" estate, merely beeauae tCellM 1 ''™'- "^ 'h" -j-y to the inherltance-that i^ T" "."''°"' breaking or destroying the buildin!' r " '""'°"' speaking of tl,e law of fixLe, a t- "^ ""T '«"" vendee, mortgagor and Z^IZ ZTJ"'" '"' anil not of trado «»»„„. i, "" e^entor, ^^^^ fatnres as between landlord and ten- a= it was si„ ,;::?;' frf :;--*"' «.» -. ,.,_ - far as regards i/^^.e*!? „ , r":??:" an assenting partv • anA rf ^ '''.'^ ;°"^ ^^ he was not to by the vie rf/ n ?''' '" '^' conclusion come to take^Tf t. V;;" "° ""7««"able line of conduct appears he did f:;^'/ ' ";' ''^ "^'^^^^ ^^ ^^ to put upandcomnI«? T^"'" <>f enabling i>ani,,^ P up and complete a large and valuable hotel upon 184 ERROR AND APPEAL REPORTS. ¥'.> 1862. the land mortgaged, for he would naturally rely upon ^■^N— ^ all that was to be 'done towards erecting and finishing ▼• ° the buildins: and rendering it habitable and convenient was enhancing the value of his security. The plaintiffs' bill should, in my opinion, have been dismissed, but not with costs. Draper, C. J.— Concurred in the opinion of his lord- ship, the president, except on the question of costs. [His lordship the Chief Justice thought the bill should be dismissed with costs.] EsTEN, V. C. — It appears to me immaterial to con- sider many points that were raised in the case. It may be safely saii C)'it there was no confirmation or adoption of the agrecr ( JU alleged in the bill, on the part either of the pt'i'^'onal representatives of i>ayj"(?«on or ilfc^Mcfifen. Tndgmcnt This point being settled, it seems immaterial whether the goods delivered after the 6th January, 1858, were delivered in pursuance of the original contract with Davidson, or of some contract supposed to have been made before his death with his agent, Stevenson, or of the contract of 6th January. That no property vested in the goods till delivery seems clear. In the two former cases the delivery should have been to the personal representatives of Davidson. But at that time he had no personal representatives. The delivery was to Stevenson, the agent of Davidson. There was, therefore, no delivery to Davidson, who was dead ; no delivery to his personal representatives, as he had none; no delivery to Stevenson in his individual capacity ; no delivery to McQvcsten, with whom there was no con- tract, and who was not in possession at the time. The only doubt that. could be suggested, as appears to me, would be whether what occurred would not operate as a delivery to the administrators when they were appointed by a sort of relation. But whatever conclusion might BRROR AND APPEAL REPORTS. jg* £:^ r:; err j7J:i.:^^^^^^^ the taZf 'Z"!'" '^ ""' "■» »'"«'»• i-^' - i» •t s:rr,t .h?p:;r;"Thr '?""-« .'■■' """^^ seem to be «h«tl,r '^ ^» • ''°'^''°'""'"'™''' exi..aelaw? Th.wUhhoir 'I"' """"'^ ''<'^' »-" Fe,™e, . w4f u* S ad '°°'" """' '"' ^ couM ho ,«»• * • "' *'°°^®'^sion, and an action of trover r-fficient remedy «i,teTif 7 "" """f ' ''"''°"«'' " misiake. The aue»,^™ u . ™ ""' Swund of "o«g«gee and heir a. lZl7n7!m' '7»""?."'» No doubt the n,ort«.ee i, entliM , ^7 ""' P™"""- "inently .„„e«d V tU eX Id ^'T '°''- - — ^estate, and bo is the heir, VOL. II. < )l ^-^a A^o IMAGE EVALUATION TEST TARGET (MT-3) fe /. n/ac»a« de terres in full force and effect, on which he made a return of "lands on hand for want of buyers, which was not the case herein. 4 That the action taken by the sheriff on the expired writ was void and illegal. «»pirea 5 That the respondents could not move in a court of law from which the writ issued to set aside the same, 'SI i 196 ERROR AND APPEAL REPORTS. 1862. Oil iIdm T, JUMO. StfttooMiit. becauso they were not parties to the judgment on which the same was sued out. 6. That the sheriff had in his hands a writ sued out on the respondents* judgment in force and effect before and at the time of tlio return of the expired writ, and at the time of the sale of land under appellants' writ. 7. That the respondents having registered and re-reg- istered a certificate of their judgment in tho county of Middlesex, as required by law, iheir lien by reason thereof attached on tho said lands immediately on the expiration of tho appellents' prior and expired writ, and then was and became a lien prior thereto. 8. That no sale by tho sheriff afterwards could affect that lien or destroy it. 9. That no consent by the appellant Gardiner could affect or do away with the respondents' lien against the said land. 10. That it was optional with the respondents to sell the said land under their writ of execution, by the hands of tho sheriff, or to proceed in this court on the said certificate of judgment to sell or foreclose the same. 11. That the respondents have not by any act or neglect prejudiced their lien on the said land. 12. The respondents' certificate of the judgment, and registered as aforesaid, is regular and in due form, as required by law. 18. That there is no error in the decree. On the appeal coming on to be argued Mr. Itoaf, for the appellants, referred to Moffatt v. March, (a) Morland V. Munro, (b) Commercial Bank v. Bank of Upper Canada ; (c) contending- that the respondents, having (a) 3 Gr. 623. {e) 21 U. C. Q. B. 91. (6) 12 U. C. C. P. 282. KRROR AND APPBAL REPORTS. neglected for more limn a year after tl.o entry of th«ir judgrriont to nlapo a wrif «f rf ^ 1 ; ^ " '°®"^ the shprlff ' I , ^' ^''' '''"'^'' '" the hands of .on.,-o„ of .HoSogiiz «".' r;^r.^^r;'°-r .".ong,. j„dg„„. creditor,. ,Io clZe Tri ./S sppcllent. by virtue of the .rit of « f„ ". . ' ^.d been pUocd i„ .„o sher!;: at^t'^, ':^^f >n alms. Tl,„ writ may Imvo been .oed „„, i„ecularlt^ b . „, not vcd, and, no. having been »oved S' ..I p™eecd,„g, taken under it .i,l be held and iZl Mr. Blahe and Mr. Kerr for tho respondents. The equitable charge created by the statute is not affected by the neglect of the creditors to place a ^ fl m the sheriff's hands within a year from ? e entfy"^. the judgment. ™"° °' upmm. The only person who could move against the writ in he .e..on a. law was .he defendant, flis .ss n , "Jh b. d,„g on h„ own i„.erea.s, cannot give effect o a vid wn. 80 as to prejudice the righrt of prior iudl.lT creduors. The respondents, having sued Tut .n i wr . arc entitled under it to' set asfde "t deed wS lantht^ihrifnr ^hirrwtr t r rtieh the lands i„ question wl e s fd The f" ° " tbough issued in one process Lrefertodir'"; ands. The sale was not and' could Tof he "„„* X /.>. residue, but under the <,«n. ^ and 'hi. ,i ,, .».» are eompelled to admit wa^'voR Vh/rt re«due was equally void, being founded on a spenf 'wlSi ler ■'■< * IS 1 1«8 ERROft AND APPEAL BEPORTS. 1862. and supposing a seizure under it, an alias, it was con- tended, was the proper writ ; but this would not havo given the priority desired. It was, in fact, a fraudulent attempt to obtain priority. Hughes v. Rees, (a) McDonell v. MeDonell, (J) Tiffany v. Miller, (c) Boss v. Harvey, (d) Cfilea v. Grover,{e) O'Brien v. Scott,[{f) Abbott y. Utratten. (g) Sir J. B. Robinson, Bart., President (after fully stating the facts to the effect above set forth.) — The defendant, Gardiner, the judgment debtor, was seised of the land in question at the time of the entry and registration of the judgment of Juson ^ Co. against him and Edwards. The answer contains a statement that certain pro- perty of Gardiner had, before the entry of either of jdifcrnent. these judgments, been assigned in trust for the payment, amongst others, of Juson ^ Co.'s debt; out of which property the debt of Messrs. Juson (f Co. either had been satisfied, as defendant alleges, or might have been, if the property so assigned had not been sacrificed and squandered, with the knowledge and acquiescence of the plaintiffs. The evidence, however failed to sup- port any such defence. The first question that has been made in the case is, whether the judgment of the plaintiffs was duly regis- tered. The suflSciency of the certificate has been denied; but, though it was not drawn up with the care it should have been, it does, I think, comply with the statute. The first statute providing for the registry of judgments (9 Vic, cap. 34, sec. 13) makes no particular mention of judgments to be entered in the superior courts before (a) 4 M. & W. 408. (c) 10 U. C. Q. B. 05. (e) 1 Clk. & F. 72. (g) 3 Jouea &. L. 003. (b) 9 U. C. Q. ii. 2S9. (d, 3 Qr. 649. (/) 11 Ir. Eq. 68. deputy judgmei passed t Theh such ju( registrat act purp< court onl the enact the signa court; ar court are Toronto, i would at f act; but w so entered without de 175, secffo each of th( several dep judgments i of the said mon Law P was given t( had entered certificate si same form j clerks of th about a seal, the court in signature of ture intended signed by the with the nece necessary in t suggested thai there should I to shew that t ERROR ANDAPPBAI, REPORTS. P"«a two yea„ BefC^lTstL. o:; 3^' "' " "' ' 190 GkMtiMr Jukoii, The legislature could hardly have meanf i. , ^ court; and as th^c k of th ""^''' '^^ ^^^' '^ *^« court are to be found onlv'^^''"'* ""^ '''^ '^'^' Toronto, the 0^:^^^^-^^^:^^^^^ office in would at first sight soem not to be provided t 7T. act; but we must consider th.f of „ /J ^" *^'^'= «» given to the deputy d ,rk in llT . '^ """""y had entered up a j'dgJufi "hT t ir; """ "' oertifioate signed b, hiLeif of .„ 'J^Z Tth' same form as certificatpa nf • a J""*™^"^^* m the clerk, of the CroTZ IZK^Jr "' *° •bout » seal, and as (h. ^„. \ """"« " « ) " that any judgment thereafter duly certified and regis- tered, as in the said act provided, shall affect and bind the lands, tenements and hereditaments therein specified m like manner as a judgment of any of her Majesty's superior courts at Westminster, when duly docketed would have bound lands before the practice of docketing judgments had been discontinued in En^^land " And further, " that a judgment to be entered up against any '"'"°"' person in any court of record in Upper Canada, after the Ist day of January, 1851, (as this judgment was,) shall operate as a charge, as soon as a certificate of such judgment shall have been duly registered, upon all lands, tenements and hereditaments situate within the county where such certificate shall have been regis- tered as aforesaid, or of which such person shall at the time of registering such judgment, or at any time afterwards, be seized, possessed or entitled, for any estate or interest whatever, at law or in equity, whether m possession, reversion, * • * and shall be binding against the person against whom judgment shall be so entered up and registered, and against all persons claiming under him. after such judgment and registry ; * and that every judgment creditor shall have such and the same remedies in a court of equity a^rainst the hereditaments so charged by virtue of this act or any part thereof, as he would be entitled to in case the person against whom such judgments shall have been sr. 26 VOL. II. 202 ERROR AND APPEAL REPORTS. 1862. entered up "nd registered had power 'to charge the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest; and all such judgments shall bo deemed and taken to be valid and effectual according to the priority of registering such certificates ; provided, never- theless, that nothing herein contained shall be deemed or taken to alter or affect any doctrine of courts of equity whereby p. )tection is given to purchasers for valuable consideration without notice." The 4th section of the same act is also to be considered here, which provides, "that every judgment recovered after the date last aforesaid, (that is, after the 1st January, 1851,) a certificate whereof shall be duly registered, shall be deemed and taken as good and effeclual, both at law and in equity, according to the priority of the time of registering such certificate ;" and the 8th section, which enacts, "that the registry of any judgment under the Judgment, fi^st recited act, or this act, affecting any lands or tene- ments, shall in equity constitute notice of such judgment to all persons claiming any interest in such lands and tenements, subject to such registry." I am. not aware of any provision in the Consolidated Statu.os of Upper Canada — I refer particularly to the Registration Act, chapter 89 — nor in any other statute, which can affect the question between these parties, or that it can be of consequence to refer to, except the 18th Victoria, chapter 127, section 1, which enacts, "that no judgment of any court of record in Upper Canada shall create a lien or charge upon any lands, tenements or hereditaments within the same, or upon any interest in lands that are now or may at any timo hereafter be liable to seizure or sale on any execution against lands, until such judgment shall be registered in the mp"ner now required by law for registering judgments in the registry ofiBce of the county or union of counties in which such lands are situated ;" which can be no further of consequence than as it tends to show by the reference ERROR AND APPEAL REPORTS. 208 made in it to the lialii'lltn. ^r i i thorn .0 be .!»/,„'; fo:^'::;:;:?- '"/""' '" z"'- "g.^tere,! jujg^ent a charge „p„ , t iLr ^* ," ^""- preserve for f ho ,-., i . , '^ ''^"^^? ^^'"s to 'ell i. in c I !"■•"' """:"■• " '•■"''>' '0 -ize and withstand ~' :;;■;';! f "■' "™ »-> ^l-argo, „,.. .lienalion b/thX^ '"'^"°™' °' ""^ «"™P"i orco, vi., .hath, the lUhsoZtXX^^ pondingen Zlmluy I 0. '' I,' """ ""^ ''^=" on .he OtK Ma,, ISet' :^l;'r^-Z:: 77 judgments thereto^ret le d 4 li"! ""' '?, "'" "^ hind the lands luZluol I? 1""' °f ■■'" "»' '» " aeotor. It ^^as so determined in 204 ERROR AND APPEAL REPORTS. 1862. Doe dem. Mcintosh v. McDonell, (a) and in Doe dem. Auldjo V. Hollister, (/>) and the law on this point has been so long understood to be well settled, that it would be a great hardship to disturb it, as it might affect many titles ; and though there was some difference of opinion in the court in one of the cases cited, yet, according to the opinions expressed in the case I refer ^^ (Doe dem Mcintosh V. McDonell) all appeared to coi. that the judgment alone of nn inferior court of record, without execution, did not bind lands. But in this case, the plaintiffs in the County Court judgment had put an execution against lands into the sheriff's hands before tae plaintiffs, Juson ^ Co., had even obtained their judgment : and if their execution had been acted upon before it expired, and there had been no acts in force respecting the registration of judgments, there could Lave been no room for doubt as to their right to be first satisfied. But as the facts stand, the case seems to me judpneni to be as clear the other way. Wo are to look at tjie questioiis raised, as we should have done if ail the pro- visions respecting the registration of judgments had continued in force. The fact of Harris and Hope having placed a fi. fa. against k'^ds in the sheriff's hands had only the effect at the utmost of giving him his first claim for satisfaction out of the lands by virtue of that writ, if it had been acted upon while it was in force. If any thing had been done under it which would have been an inception of execution, then the execution could have been perfected, and all would have been looked upon as done under the first writ. Whether in that case there would have been any good ground for contending that the plaintiffs, claiming under their registered judgment, were entitled to priority, oyer the creditor pursuing his remedy under an execution begun to be acted upon while both the judgments were unregistered, it is not necessary to determine. F ?J (a) 4 U. C. R. 0. S. 195. (6) 5 U. C. R. 0. S. 739. m5 1863. ERROR AND APPEAL REPORTS. At present my impression is that under such circum- stances the now plaintiffs would not, by virtue of the subsequent registration of their judgment, have been entitled to prevail. But when the writ of JIarris and Hope against lands was allowed to lie in the first sheriff's hands, not in any manner acted upon till it was no longer current, and was not handed over to the new sheriff till it had entirely lost its force, then I take it that writ became unimportant for all purposes. Ic could not either restrain the judgment debtor from alienating his lands, or prevent the registration of Juaon's judgment from having full effect as a charge, undiminished by any lien that might otherwise have accrued through Harris and jffbpe'* Ji. fa. Assuming this to be so, then, what is there in the way of the remedy which the plaintiffs in this suit are seeking through a court of equity, which is one mode given by the statute (13 & 14 Vic, ch. 63) of making j^^^^t his lien productive? Nothing, unless the defendant Hope is right in contending that the step which he or his attorney took in September, 1859, in getting the spent Ji. fa. returned in the manner it was, and pro- ceeding to a sale under the venditioni exponas md fi.fa. for residue, could deprive these plaintiffs of the benefit of their lien. I think it could not, and that the judg- ment of the court below was quite correct on that point, (a) It is quite clear that the only sale that was made was . of the one property about which this contention is ; and that property, and no other, was in contemplation o^ the plaintiff, Hope, and his attorney, and the sheriff, when they were considering whether the money could legally be made out of that property, by enforcing the execu- tion that had been suffered to expire without any thing being done under it; and when it was thought fit to (a) See Hughes t. Bees. ' ^" i -»l Til '4A 206 EUnOR AND APPEAL REPORTS. 1862. abandon the idea of selling, under the expired writ, property that had never yet been seized, an attempt was ventured upon to make the sale colourably legal, by pro- curing a return to be made to that writ, which was really untrue, that lands had been seized under it. I do not think the court should lend its countenance to such a proceeding, by entertaining the surmise that possibly the return might have referred to some other lands, about which we see nothing in the evidence, and that the sale that was made took place, not under the ven. ex, which was grounded upon the false return, but was made in October, 1859, under the fi. fa. for residue, which was contained in the same writ, that had only issued just a month before. To suppose that, would be to suppose that the sheriff, on the 22nd October, seized and sold, under a writ against lands which came to him on the 21st September before, land respecting which he seems to have done nothing in the short interval by Judgment advertising or otherwise, and which lie could not, with any regard to his duty, have sold as he did, if all the steps that he took were under that writ; and it is clear nothing had been done by him or his predecessor under the first writ. In my opinion, the sale 'made by the sheriflF was not merely irregular, but was a void proceed- ing, a nullity, because it was wholly unauthorised. In common cases the sheriff, acting under an execution, whether by arresting the body, or by seizing and selling goods or lands, is held to be pursuing under the com- mand of the court an authority derived from the plain- tiff, and he is consequently held to be bound to observe the plaintiff's directions, and cannot rightly go forward when the plaintiff directs him to forbear; so much so that actions of trespass have been maintained against the sheriff by the defendant in the writ, for arresting or detaining the person, or for seizing on certain goods, where the plaintiff has instructed him to do otherwise. But the evidence of an agency or authority is only to be fouad ia the writ itself; and here, can the authority :Vr ERROR AND APPEAL REPORTS. be held to be continuing under a writ which, havine 1862 expired, has lost its force? * ^ . ^ 207 C. L. P sec. 249,) that every writ of execution, exceo those ag„,nst the body, shall bear date on the day on heTc ■ of ^t "" "'' """^'^^' ^"'^ ^' ^^'^^ «Poa h.!n K / . ""'"""'"* ^^'''^' ""'<^«« execution had been begun to be made under it, which is not pretende and moreover, Ifoj^e, the surviving plaintifff bein„ ' « Sr"ii:i:''^ ''?' ^-^^ '^-'"^ ^« -^ ^^-^ an :!:: regular. The proceeding was at his risk, and he it was who bought the property at the sheriff- sale, an I as agent for any other, but for himself. Hi; sdl n. afterwards to Armstrov, was a distinct transac n^ He cannot be heard to say that he acquired a the by an abuse of the process of the com 11. resorted to in his own'case, or for li" ol 0'^'^ '-^-'- having acqu.red no title otherwise than by hil'.^id proceeding, he could transfer none to a^^p^r baser Arrnstron, wto bought to oblige the de'btor h ^ brother-in-law. and at his request, and who has paid bu a portion of the purchase money, can stand in noTetter position than JZojoe himself. ^ no oetter It has been objected that, admitting that the sheriff's sale cannot be sustained, yet the remedy to be sough by t e p amtiffs, Juson & Co., does not lie in a court^ court of law, by moving against the sale there- but Juson & Co. are not parties to the action in whi^L til J^^ egal proceeding took place, and could not Iw f e have moved on such ground. They mi^ht I sunnlr have insisted on following up their rLedfLy e eE •against the same land under their JudgLnTa:';' applying, if necessary, to the court to compel the Bhe«ff to sell on their writ, notwithstanding his former 206 1863. ^■B IB ^^^^^V imSm ^^^^^^^^H iW^m ^^^^^^HHS i^/R ^^^^^^Hp |Sb ^^^K H ERROR AND APPEAL REPORTS. invalid Bale ; but whatever course may have been open to Juson & Co. at law, it would not follow that equitable relief could not be extended on any of these general grounds which are the foundation of equitable juris- diction. But besides, in this case the plaintiffs are pursuing a course which is given to them in express terms by the Registration Act, (13 & 14 Vic, ch. 63, sec. 2,) which gave to every judgment creditor registering his judgment " the same remedies in a court of equity against the hereditaments charged by virtue of that act (that is, by registration) as he would be entitled to in case the judgment debtor had power to charge, and, by writing under his hand, agreed to charge the same with the amount of such judgment debt and interest." The jurisdiction in equity, in cases where a party has voluntarily placed a charge upon his lands by mortgage or otherwise, is at least as plain as where, in the words Jndcmrat. of t^'J' clausc, he has agreed to charge it ; and if a party standing in either situation can clearly go into equity, as he can, to obtain by a convenient proceeding the benefit of his incumbrance, he is by this clause equally entitled to the aid of equity to get the benefit of the incumbrance effected by the registration of his judgment. It need hardly be remarked, that the defendants* case cannot be strengthened by the fnc^ (if it were so) that the sale was made with the assent of the debtor Gardiner or by any thing determined in Doe dem. Morley V. McManus ; for this is not a case of a party endea- vouring to get rid of a proceeding taken with his own assent, or in consequence of his own representation ; it is a contest between two judgment creditors, acting independ.ently of each other, and each advancing a claim to satisfaction out of the same property, by reason of acts, done to which the other was no party. Much was said in the argument of the case, upon the ERROR AND APPEAL REPORTS. meaning and effect of the provision at the end of the 13th clause of 9 Victoria, chapter 34. It is a merely negative provision, by which we cannot hold any thing more to have been meant than is expressed in it; and that is, in effect, that under that act the party who shall have first registered his judgment shall gain nothing by priority in registration merely, if ho docs not put an execution against lands a,co the hands of the proper ahenff within a year after tho entry of his judgment. We cannot hold, I think, that even after tho passing of the subsequent act of 13 & 14 Victoria, chapter G3, that aection can be taken as an indication of an intention that the judgment creditor who has registered must take his common law remedy by execution for obtaining satisfaction, if at all, by that course ; and that such an intention, indicated in the statute of 9 Victoria, is to con- trol and in fact render useless and insignificant the provision in 13 & 14 Victoria, chapter 63, section 2, which jud«u.ent expressly gives to a judgment creditor,' for enforcing his charge, created by registration of his judgment, tlfe familiar remedy in favour of incumbrancers which the plaintiffs in this case are pursuing. If the two statutes are, m:the points to which I am now referring, inconsis- tent, the former must give way to the latter ; and it is enough at any rate to say that what the 9th Victoria chapter 34, requires, was in this case done, for the plain' tiffs did take out their fi. fa. against lands within the year and deliver it to the sheriff. And besides, the legislature m 13 & 14 Victoria, chapter 63, after assuring to such judgment creditors as should register the same remedy in effect as mortgagees, have followed up that provision im- mediately with this other, « and all such judgments (that IS, all judgments registered) shall be deemed and taken to b€ valid and effectual, according to the priority of regis- tering such certificates ;" which words cannot have full effect without excluding the contingency of registration being followed up by takeng out a Ji. fa. on the iuis- ment within a year. ^ 27 • VOL. U. til : t 210 ERROR AND APPEAL KEPORTS. 1862. ^1 to tli«pro/!so at the end of i - o second clause of 13 & 14 \\(s(^», chapter 63, tiiat nothm^' in that act shall be deemed lo iUep or affoct any doctrine of • '>nrts of equity, whereby pro' "Ction is given to purchasers for valuable consideration without notice, that can only be held applicable to cases in which relief is applied for under vaiious heads of equity, upon grounds on which such courts assume a peculiar jurisdiction, and in which, as a general rule, they decline to interfere actively for the relief of any party, where they cannot do so without inflicting an injury upon a bona fide purchaser for valuable consideration without notice of the alleged equity : but courts of O'luity cannot, moro than courts of law, on the footing of want of notice of the ille- gf^^'ty. g've effect to proceedings which, on principles of tJ3« common law and under acts of parliament, are Iti rly void. Draper, C. J. — I think the writ of venditioni expo- nas and fi. fa. for residue are wholly void ; for they lft,ve no foundation to rest upon, except the spent writ of fi. fa. against lands, on which sheriflF Glcss was ill- advised to make a return, as it came to his hands after it was spent, and nothing th«n had been or afterwards could be done upon it. Then as tht judgment of ffope and Harm against O-ardiner had never been registered, the plaintiffs' judgment, which I take to have been registered, became a lien or equitable charge on the execution debtor Gardiner's land ; and the present suit, to have effect given to that charge, is entitled to succeed. I am inclined tc -(.ry the decree so far as to permit Armstrong, the pu; '-f»,ur to redeem the plaintiffs. Gardiner having as?rt»i ' tc. if ;:e did'n^t procure, the sale by the sheriff, 1; ifi > oid,im to rcv.aideration at Armeirong's espensc. ERROR AND APPBAL REPORTS. su OardlDar ih^cZ'Tj' ^■" '°"'"'"'"^ '" ^''° ^'«^^« expressed by tho Ch.ef Justice of the Common Pious. P^r 6V.— Appeal dismissed with costs. r. Juion. Oh Af, Appka. r„u« a Judombnto. t,« Com of Commo» Pli^,. The Corporation op the County op Simcoe v STUEEr. part of the price therefor were "nii be t„^ '''"' ''*1 ^"'"^ " berecoifered bac'k untr're'crr.oVlrj^Sr"'' """^ "'"'' Tho suit in the court below was instituted by Thoma, C. Street against the corporation of tho county of suu«.... Simcoe, to recover from them the sum of «499.^^6 paid by h.m un er protest for taxes upon certain unpat'ented lands m that county, sold to Street after June, 1853 The amount was paid in two sums, «350 enclosed in a letter of the 29th of October, I860, and the balance enclosed m a letter of T.Oth November of the same year a", ressed to uio treasurer of the county. These lands had been advertised for sale by the sheriff, and the treasurer handed the money received by him from Street to the heriff m the early part of 1861. The declaration con- tained the common counts: money paid by plaintiff for defendants at their request; money had and received by defendants for plaintiff; and for interest ; and on an account stated. The defendants nlead.d ...L ,-..^4 11?'/"'"';"^ satisfaction. " Upon the^e pleas Ihc^ plaintiff jomed issue. The cause was tried before the 212 EKROR AND APPEAL REPORTS. Statement. 1863. Hon. the Chief Justice of the Common Pleas, at the Niagara Assizes held in May, 1862, when a verdict was rendered for the phuntilT for the amount claimed, with leave to defendants to move to enter a verdict for them ; the court to draw inferences of fact. At the trial several witnesses were examined ; amongst them the Crown Land Agent for the county, who swore that the plaintiiF had paid him an instalment of one-tenth of the purchase money for tlie lands in question, which were all unpa- tented until January, 1800, wild and uncultivated ; two of the lots were patented to plaintiff in April, 1861. The late treasurer of the county was also examined ; he proved the fact of the lands being in arrear and returned as absentee lands, and that on the 6th August, 1860, he had issued his warrant to the sheriif to sell these lands for taxes. The following letters, addressed by the plaintiff to that gentleman, were put in evidence at the trial : " Niagara Falls, Nov. 23, 1860. " Chippawa. " Dear Sir, — Referring to my letter of 9th instant, in which I proposed to pay you a visit, and discuss the subject of your demand on me for taxes on the clergy reserves ; I have now to say that as the sale is near at hand, and my time is so much occupied that I cannot well leave home for the purpose — that I will pay the balance which you claim if you will receive it under protest, and leave the matter open to be arranged at another time, rather than the lands shall go to sale. I have done this in other counties where I have lands of a similar description. Be pleased to answer by return of mail." Niagara Falls, Nov. 30, 1860. XJhippawa. " Dear Sir, — I have been absent from home aiid just got back, and have merely time ut present to en- close my check on the Bank of Upper Canada for $184 44c., the balance claimed by you on my clergy lands in your county, but which I pay, as before advised, and now accepted by you — under protest — as I claim that your demand to the extent sought, cannot be maintained 1882. ERROR AND APPEAL REPORTS. ihir^nr^ ^I'" ''' ^"''*^'' *•"« endeavour to arrange the matter with you, or have a case submitted to tfe courts for the r interpretation of the cas" Please in S?J/*''V^'* ^ P'^y ^" ^'^^^^ taxes, amounting o reftre^d t:^'"'' '' *^' '^''^ ^'*°^"' ^'''' ^^-« " I^EAR SiR,-The Public Lands Act of last session has reached the class of lands on vvhich I heretorre objected to pay taxes, namely, the unpatontercler Jy reserves, sold after June, 1853." P'"'«"'ea ciergy Jf y M "*".!'! T '''' *!'''' ^^^"'^ *^'3 act these lands w^o not hable, but I am in no position any longer to rS tl nr.? "^r!Y '-'""'y ^^^ th« r-^tes. ^I annex a St of those belonging to me, which you have advert tised for sale and I have to request that you w'll do me the favour to withdraw all of tLm f your schedule, and I will pay X 'tLs and "charge" tha are legally due upon them, without the necesSf «'"•'»»'• putting them up at public auction. Be pleased S^^^^ your concurrence by early mail, and at your con venfenl^ send me the charges against each lot. In the meanS I remit my draft on the Bank of Upper Canada f"r fbl^'e/' t.""' ^'"' '' P^^"^' '' acknowledge and The witness stated ;— . of Sil^onf 'Vf ''^" *u° J'^^ds^t'^^ed in the county d sniTed sJ ^'' r ^°"^' J' ''^''' *« the taxes now disputed. So does the second more distinctly I ro^^ • my answer to this^agreeing to receive the Sey unTer protest-It 13 in reply to plaintiff's letter of the 23?d?' The witness further swore that. "The knd« w«r« advert^ed for sale for taxes at the Jate of thisTet er was EvS^'aT^ •^^"^•^unication with plaintiff; all ml XlMAi /^^''\'f''}l'^S the two sums of $350 ana ot $iy4 44 from plaintiff, Mia Ur.Ao ,„<,-„ -^uva irom sale. 1 paid the^oney tolhe depu^rsheri^^^^^^^ The sheriff also was called as a witness, who swore, 213 Si 214 ERROR AND APPEAL REPORTS. 1862. " I caused these lands to be advertised under the war- rant proved by the last witness. I caused proper notices of sale, covering the lots mentioned, to be inserted in the Canada Gazette and local papers. I received from Mr. Lalli/y the last witness, the treasurer, through my deputy, the amounts claimed, including my fees, and paid the money for taxes over to the treasurer of the county, in the early part of 18G1." It was also proved that the plaintiff had always resided at the Niagara Falls ; that he occupied no lands in the county of Simcoe ; that he had since paid the instalments which were due on these lands, and that only one instalment remained ; that in 1861 plaintiff sent a person to inspect these lands; and that plaintiff, by advertising, offered some of these lands for sale ; and that of the two lots patented plaintiff sold one in 1860, and one in 1861. In Easter Term, 1862, the defendants moved for and obtained a rule, calling on the plaintiff to shew cause rutement. why the verdict should not be set aside, and a verdict entered for the defendants pursuant to leave reserved at the trial on the ground that the plaintiff shewed no legal right to recover the amount claimed, and that taxes were properly payable on the lands of the plain- tiff, being unpatented clergy lands, purchased by the plaintiff from the Crown after June, 1853 ; or to reduce the verdict by the sum of three hundred and fifty dollars, inasmuch as that sum was paid by the plaintiff voluntary, ^d not under compulsion, or under a mistake of fact. ft Upon argument, during the same term, the court dis- charged this rule, and from the judgment the defend- ants appealed, on the grounds, 1st. That the said judgment is erroneous and con- trary to law, in that, the respondent's lands being lands purchased by him from the Crown, through the Crown Lands Department, were, though unpatented, liable to ERROR AND APPEAL REPORTS. t«a,„rer of ThTln t f «° """' ™» ">» duty and Z ?JP'""°*^' '* ^^^s in discharge of his auiy, and he could not, withonf- the. „ directions of the appellantT bin 1 I 7^"f^^"°« ^"^ the 24th November a.l.n' I '"" ^^ ^^' ^«"^r of protest. ' '''^'''^S *^^ •^^"^y ^« paid under Mr. M a Cameron for appellants. ' ~::i?nSe;:d;rfr:;e-*tr'^' -fent to sustain the j„dg«nt appealed from " "" The judgment of the eourt was delivered by VI its own work In Upper Camula however, ti.e .leviation from tl.conlinary conse, rule, whieh was without precclent or authorit; n Engl sh cases, seems to have boeu i.Uro,Iuee.I, without tho sancfon o the court in the first instance, t ou^h it . subsequently adopted and acted on. But I belie 11 ng t ,n .tating that there never was a gener ru « of court introdueing or sanctioning the innovation by wh ch when a pla.ntifr declared in ejectment for (e^ Xl could-not adm.tt.ng possession as the gene.-al rule requ.red--stato that he was in possession of a specified p ooe of land wh.ch ho claimed and defended fori tt ot Ko. 2. Irom the t.me this chang. was established became, p..actically, the rule to make the ques.io" of title entirely subservient and secondary to the question advantages for surveyors and for attorneys, an.l for , . hos. su.tors who did not count the cost of itiga i n '"'"• however often renewed. I repeat, however, tit t"; th.3 pract.ce, neither reported cases of English courts nor text books of English writers affor.l .u) , ' or authority. ' '''''''' precedent And this practice was unchallenged until after tha passing of our Common Law Proced:.. Act! N " u tZZT ""''^ °' '^ "^" undiscovered or unfel but ftora a deference to the autho.-ity which permitted i to grow up, and finally Lad recognised and sustained il. With an exception, which I will p.-esently notice,' our Common Law Procedure Act of 185(i, wis, as t the ordinary act.Qn of ejectment, a transcript of the English statute. That an act of our legislature, identical nearly so m language with the English act, should mean ' s Turn r- \"'.^'"'' '''''-' ''^ ^'^-' --^ruction, ILV r { ' ""' "" reasonable expectation, more especiaHy when we draw upon English authority, Z VOL. II. 225 ■ I J il'; llSr 226 1863. ERROR AND APPEAL REPORTS. upon the fountain from which our jurisprudence is derived. If the effect of the plain language of the act is to alter the practice and proceeding which was pre- viously in use, then, we are bound by the expression of legislative will, and no argument can be solidly based upon previous practice. The courts may sanction a departure from their own rules, or an addition to what such rules prescribe, but the courts have no power to • add to or vary an act of parliament ; nor to add to the simple appearance which the statute directs, qualifying or varying matter, tending to raise a different question from that which the statute directs, namely, whether the statement in the writ of the title of the claimant be true or false. It is admitted that if the claimant proves title to a single inch of that which he claims in his writ he must recover ; that admission appears to me fatal to the contention that defendant can add any thing to his appearance except the notice that he defends for part Jvdgmttit. only, which is to form part of the issue to be tried. But unless the defendant may convert a simple appearance into a quasi plea in confession and avoidance, the claimant, by this decision, will have this advantage; for he may always in his writ name the lot for which he brings ejectment, and to the name may add a description by metes and bounds. If the defendant only appears, the claimant, in order to entitle himself to a verdict, need only prove title to the lot as named, without giving any evidence of the description ; and yet if the question of boundary is the sole matter in dispute, and if the verdict establishes the claimant's right to the land as described, he may succeed without proving any boundary whatever. On such an appearance as the statute war- rants, the defendant cannot raise the question, that the description covers part of another lot than that named in the writ ; and the statute does not authorise the defendant to do more than appear, and declares what the effect of that appearance shall be as to the matter put in issue, namely, title, but not a syllable about boundary. Up to this time I have not doubted that ERROR AND APPEAL REPORTS. an appearance which contained ad.litional matter was T863. irregular, because, all the statute authorises is, that the "^-^^ defendant may appear as he may in any other action : it '"!'"* goes no further, and, impliedly at least, prohibits more. '"*'"• The exception I have above adverted to is the require- ment that each party shall give to the other notice of the title on which he means to rely at the trial. I have not succeeded in extracting from this enactment any foun- dationfor an opinion, that our legislature intended to depart from the English act, and to sanction mere questions of boundary being tried under the name or colour of disputes of title. That a claimant may so frame his writ of ejectment as to mix, inseparably, the questions of title and boundary, I do not, and did not, m the judgment referred to, deny. But the defendant can always obtain an order for better particulars of the land claimed, and has some authority in one judgment at least, of the Cou^t of Queen's Bench, for asking that the number of the lot, or other name of it- when it has '°"~"*' one derived from public authority-should be given : and If the plaintiff then claims a lot, or part of a lot, to «tw t/t"'^?f ^'^ »« title, he is under no ne es- sity to defend. He never need be embarrassed by a want of reasonable certainty in the description in the writ, for. If that exists, the statute provides him a remedy ; and this affords an answer to any suggestion of unfair advantage that an unscrupulous plaintij, with the aid of a tricky attorney, might try to obtain. I will only add that I have endeavoured, but in vain discover how the section which provides what thj effect of a judgment in ejectment under our statute shall be can influence a decision as to what it was I M^'' fT'^ '""^"^ '"^ '•^P^^*^'^ consideration. I felt any doubt as to the opinion I have formed, I 227 .-11 ^28 ERROR AND APPEAL REPORTS. 1863. would have lot this case be disposed of -without making an observation. The real doubt which the decision of this court tends to create in my mind, is my ability to arrive at a right conclusion ; and hence must arise a distrust of my own judgment, embarrassing during the period, be it longer or shorter, during which I may continue in my present vocation. I may be excused frOm saying that if I stood alone in my opinion, this distrust would have been painfully increased. My opinion is, however, shared by three of the present Judges of the Courts of Common Law. I submit, as in duty bound, to the authority of this tribunal, but I have not been able to add conviction to submission. EsTEN, V. C— I think the judgment should be affirmed with costs. It appears that a practice had grown up in this country, of trying questions of boundary by means of an action of ejectment. I think the late Judgment.' ^^^ raaUs no difference in this respect. By the 21st section, I consider that the writ and notices annexed to it are incorporated for the purpose of affording a state- ment of the plaintiff's title; and the question to be determined at the trial is, whether that statement is or is not true. In the present instance, if we take the writ and the notices together, we shall see that the plaintiff shews a title, by his notice, only to lot ten, but not at all to the piece of land in dispute. By his writ, however, he shews a title to that as part of lot ten ; and the title[ as claimed, is composed of a right to lot ten, and a right to the piece of land in dispute as part of that lot ; and the question to be determined at the trial was, whether that claim was or not true. The plaintiff, who did not simply claim lof ten, has, by the form of his claim, raised a question of boundary; and the defendant, only meeting him on his own ground, ought, I think, to have been allowed to prove his case. Spragge, v. C, concurred in the opinion delivered by V. C. EsTEN. BRROn AND APPEAL REPORTS. 229 .ul:rc:;crer.ui- =;e- ^^ ^ McLean, 0. J., suggested that as the courts below It was a proper case m which to dismiss the ann^» LUBAPBH, c. J., and MOKMSON, J., diBsenting.] ElOHAKBs, J, who „, p„,e„, „|,e„ j„j.„,„t ,^ .! 'Ji 1*1 280 ERROK AND APPEAL REPORTS. 1863. {Before the Eon. Archibald McLean, C. J., the Hon. P. M. Vankoughnet, Chancellor, the Hon. W. H. Draper, Q. B., 0. J. 0. P., the Hon V. 0. listen, Hon. V. C. Spragge, the Hon. Mr. Justice Hagarty,* the Hon. Mr. Justice Morrison, and the Hon. Mr. Justice Connor. f] On an Appkal fbom the Court op Common Plbas. HoLCOMB V. Hamilton. Bill of ezehanffe— Joint action— Discharge of one of several defendants. Held, (affirming thb judgment of the court below,) that where the holiier of a bill of exchange or promissory note sues, under the statutf, tlie drawers, acceptors and endorsers, in one action, he may discharge the drawers or endorsers [or accommodation acceptors] after an arrest under a capias ad satisfaciendum, without losing his reine Jes against the other defendants liable in priority to those discharged. [McLeak and Ur .peb, C. JJ., dissenting.] This ^0.3 an appeal by the defendants from a judg- ment of i;he court below, in an action wherein Robert Ja'vis Hamilton and Milton Davis wore plaintiffa, and Btatomtnt San>,ael T. Holcomb was defendant. The facts of the case arc sufficiently stated in the judgment of his Lord- ship the Chief Justice in disposing of this appeal, and in the report of the judgment in the court below, in the 12ch volume of the Common Pleas Reports, page 38. From the judgment there reported, the present appeal was brought, ,on the grounds, that the judgment given by the court below on the demurrer by the defend- ant to the second replication to the third plea of the defendant is erroneous and should be reversed, because the action being upon a joint judgment against the defendant and John Macpherson and Samuel Crane, it is not competent to the plaintiifs in another action to sot up in reply to the defendant's plea the position in which the said John Macpherson, Samuel Crane and the * Was absent from the Province when judgment was pronounced, f Died before judgment was pronounced. JIRROR AND APPEAL REPORTS. 281 defendant stood in regard to each other on ih. ■ . ,o ment upon which thp i,,.? . ^'^^ '"^**""- ^S63. recovered • aid aL M ^ ^"'"^ "°^^ '"^"^ "P^» ^^3 W- plainti^ Lv r c"; dlv" ""^'"'•^^ ^'^^''^^ ^^o ^f- on account oJ T atd^e^ Th"'^^ ^T^^^ said Maopkerson, and his Sal Ahr"' °' '""l the plaintiffs, dperating in aw af a J- ^ ''"''"' °^ further re.edies'on the^saiS judgLt "'"^^ °' ^" ^r. aalt, Q. C, and Mr. Anderson, for the appellant. ^r. H. A. Harrison for the respondents. The cases principally relied on appear in th. ,• a ments of their lordships and Jn ^i! •'"'^S' in the court below. ^' ''P°'* °^ *^« ««^« McLean, C. J.-This was -n action on « • j recovered on the 12th day o^jTuI^ msTT Court of Co.™on Pleas, a^linst C/LZl^tl JohnMacpherson and ^amr..^ Oan., for £505 lis 8d together with ^19 7s. Gd., costs of «.,;.' together to £525 19s. 2d • whTch f • T '/"'"""''"^ «u' ^ce 1. ' ^^"'ch said judcraent thn plaintiffs allege, remains in full force, unreversed and unsafsfied; and the plaintiffs have ^ot obla nd „nv «ecut or satisfactionforor upon thel d Idglr whereby an action hath accrued t^ +», J""graent, demand and have of and ITtt d.f /?f '' *° Bum nf £«;o(^ iQ oi ® defendant the said Bum of £o25 19s. 2d. ; yet the defendant hath not paid t,r' " ^"^ '''' '''''''' -^ *^« Plainti;s cfaL "Ind for'^ f.'- '; 'i^''^ '^ ^^'""^•^^^ ^°' i^ '^^ follows: act^ igitll:v.tt^t:^^^^^^^^^^ was sat sfied in this thnf IL i • P^" '" *'"3 cause cover, f .k j-^S^^ft t trSlo^te i-T JudgntMb j-'i .| '^\l .282 ERROR AND APPEAL REPORTS. 1863. Counties of Frontenac, Lennox and Addington, whereby ^— V— ' the said sheriff was commanded to take the body of the Hoicomb gg^jjj jr^/j,^ Macpherson in satisfaction of the said judg- Htnderun. ment ; Under and by virtue of which writ the said John Macpherson, one of the defendants in the judgment declared upon in this cause, was arrested and taken, and detained in close cu, 10 Jur. SI. ERROR AND APPEAL REPORTS. 287 that the judgment was recovered, on a bill of exchange 1803. drawn by the defendant on iMacphers n ^ Crane, and ^"v— accepted by tbem for the defendant's accommodation, ""'r" against the defendant and Maophcrson ^- Crane- that a "'""'""°"' Man,; '""" '"''^ ""' "P°" ^'"^' J"J='"«nt, on which Maepherson was arrested; and that while he was a prisoner on the gaol limits, the plaintiff discharged hira from^ustody; and that the pUintiff. have not received any money or other property in payment or satisfaction of their judgment. It appears to me from the cases cited that the arrest and discharge of one of the joint debtors operates in law as a satisfaction of the Lu ment, and that the plea setting forth the arrest an^d discharge ,3 good, and the defendant entitled to judrr- ment on the demurrer. I am not aware that there is any thing peculiar to distinguish this case from other cases of joint judgments, in which after arrest and dis charge from custody ,he courts have felt themselves • bound to order satisfaction to be entered. The suit in ^hich t e plaintiffs' judgment was recovered was brolUt """'• on a bill of exchange against the drawer and acceptors under he 23rd section of the act of this province, (c"n anv h^; f" '\'P- '''^ "'"'' ^"^°'^' " ''-^ ^^« ^-'J- of any bill of exchange or promissory note may, instead of bringing separate suits against the drawers, makers endorsers and acceptors of such bill or note, include ali or any of the parties thereto in one action, ind proceed to judgment and execution in the same manner as though al the defendants were joint contractors." The plaintiffs have availed themselves of that act, and havl sued all the parties to the bill of exchange in ine actiol as though they were joint contractors, though it was not compulsory upon them to do so. If they^had roll severa actions as they would have been obliged to do " before the passing of the act 13 & 14 Victoria, chapter 59 hey would have been entitled to disbursem'entsCyt one of the suits and to full costs in the other ; bat the difference as to the amount of costs to which they would be entitled could not, in suing for so large anlou,^ SIPii ~" f j'^ ^H I i ' t'9 ^^1 ? \Ms ^H f 4}^ ^^1 y ^ifiaik^^^H r ' ' ^^E ^1^1 t' I^B 1 « i^H^^^^H « ^-^hHI^^^H •i',-m M ERROR AND APPEAL REPORTS. 1863. have formed any consideration to induce tlio plaintiffs to ^^^^ adopt the mode of proccedinrf nutliorised by the statute. T. BMdtnan Jmdi The oct, I think, affords a facility in cniibliiig all the parties to a bill or note to be sued in one action ; and in that action a judgment n<,'ainst all may bo obtained, either jointly, as in this case, or severally, as may be thought desirable by the plaintiff. The judgment sued on is against all the defendants jointly, and I can discover nothing to distinguish it from all similar judgments, nor can I perceive any reason why it should not be discharged in the same manner. In the second replication to the itliird plea, the plaintiffs endeavour to show that because the bill on which the judgment is recovered was made by the defendant and accepted by the other defendants for his accommodation, therefore he i^- not entitled to be discharged by reason of MacpJieraon having been discharged from custody. I do tt not see that the defendant's position in reference to the original cause of action can in any way afiect his position as one of the defendants in a joint judgment. The plaintiffs might have urged the facts stated in their replication, it they had failed to give defendant, as the drawer of the bill, notice of its dishonour after accep- tance ; but after the bill has become merged in the judgment, and all are jointly liable to pay the amount, they cannot, I think, go back and urge such an objection to a discharge from the judgment — a dischart^e •which they, by their own act, have placed within his reach. In my opinion the defendant is entitled to judgment on the demurrer to this replication to the third plea. The 26th section of chapter 42, Consolidated Statutes of Upper Canada, provides that the rights and responsi- bilities of the several parties to any bill or note, as between each other, shall remain as though that act had not been passed ; (saving only the rights of the plaintiff, so far as they may have been determined by the judg- ERROR AND APPBAL REPORTS. cnnnot bo treated a«.;r«n„j / , ^l ^ ''*^'®' "^"^ „ /• -'"ica.oj„,,,,,„,,,„,,^,,,,,;;']«^^;;o«c„.h„.i. itself sIioAvs the relation n. % T. *''^ J"' -"t it, and that it wif I^, 7:7/; ^ ^--^ I'^^-es to tJ'is purpose is roqu 1 Z) ^° '"'•■'"«''-' evidence for record to uscert-u-ni- • J^ "« S'^i"^^ behind the and the way . j" a i ?• 7"^ '"' "' ^'^« ^^^ ^^^^ wereobtainedtl eanf •'"'^"'""''J^'"^^^^^"'^^^^ e«^ctuatintt;x:r;,;:;;;,r"°'":'^^^"^ out the spirit of the act to In, T^ ''' '"^^ ^^'"'"^'"g the parties sev r ^^iK J"^^ ^'\^ "P°" «"«h a reeord several jud-Xm Ld ^' "° '' ^' '"'''^'^ -« though ^vfiS.erret:tiri::s-^-' several acions „g„i„,,. „„, „„ ,;7' , Ltr'°"'."« contractors; iio mav solJt ,i ', """"'""a' joint 28» iidgfflent. 240 ERROR AND APPEAL REPORTS. 1863. by the action in which he has joined the others. The *~"^''~^ iudcment is but the cord which binds together the sticks. Holeomb Jo -. , , , „ ^- The defendants are fixed by it so that they cannot dis- pute their joint liability to the plaintiff thereunder ; but each is, as to the character in which he has been made and is so liable, as much an unit as is every stick in the bundle. Section 26 of the Consolidated Statutes, chapter 42, which provides that the rights and responsibilities of the several parties to any such bill or note as between each other shall remain the same as though the act had not been passed, saving only the rights of the plaintiff so far as they may have been determined by the judg- ment, means, I think, nothing more than this, that the several defendants shall have their recourse, the one a<^ainst the other, according to their relative liabilities, as though they had been separately sued or called upon to pay, in their several capacities of endorser, drawer, accommodation acceptor, or as the case may be ; but Judgment, that as regards the plaintiff, their liability to him, as determined by the judgment, shall not be disturbed — that it shall not be open to any of the parties against whom he has recovered judgment, and who may after- wards be compelled to pay, to allege that he became liable on the note only for the plaintiff's accommodation, or that in any other way the plaintiff is liable to him. Draper, C. J., retains the opinion expressed in the court below. • EsTEN', V. C. — I have looked at all the cases that were cited, and have come to the conclusion that the judg- ment of the court below is right. I think the plaintiff is in the same position as if several judgments had been recovered. There is a merger, no doubt, but a several merger. The intention of the act of parliament was, not to prejudice the plaintiff; only that there should be one action and one judgment, but not that the parties should stand in any different situation as amongst them- selves. The replication here sets up, in effect, that the ERROR AND APPEAL REPORTS. 241 the now defendant was the principal debtor. ^-^ Boleomb of^hr/^' v\^r^P°'' ''"'^'°« *^« ««^«ral clauses =•"^^"• of the ac which bear upon this question, one is im- pressed with the conviction that the one object of the legislature was to enable the holders of bills and notes and in a sense to compel them, to sue all parties "able to them upon the instrument in one action, without disturbing the rights of the parties as betUin one another. In the 26th clause, which creates the dfficur this intention is manifested as strongly as in any other In express terms it leaves the rights of all parties a^ they were under the old form of feeding, wUh Is read the clause, one exception expressed, "saving only the rights of the plaintiff, so far as they may have been deer.,ned by the judgment ; " which^ tai to i ^ that the rights of the plaintiff, as determined by Ihe judgment, are to stand as so determined. One naturally enquires, with whatobject this "suing" was introduced. A reason may readily be suggeZ orttaTt'' ''' T- *° '''' '' -- «S : or as to all. Suppose him to fail as to one, and to succeed as against the others, if the clause h^d sLd the rights and responsibilities of the several parties to any such bill or note as between each othersha remain the same as though this act had not passed " and had stopped there, there might be room to contend that It enabled the plaintiff to prLed in another TS agains the defendant, as against whom he had failed in he action in which he had joined him with other p tie" and iterally he words used would cover such a case, ut' for the provision which excepts the plaintiff's rights s^ far ast eymaybedeterminedintheacLnunderthe statl It IS no necessary to say that a court would have' u , „nG legiaiaiufe may jUave add<»d thia pr„v..,„„.„„wu,e. doubt. It i ™ffioient „ »W that under o.rc»msta.ces,hich might .rise in ^'i^ VOL. II. Jodgment 3*2 BIIROR AND APPKAL REPORTS. ^1863^ the act, a result might have followed (or the legislature ^i;;;^ might have thought so) which it was deemed advisable H«»dli*,n. *<* P'^ovide against. Morrison, J., thinks the judgment of the court below was right. Per Cw.— Appeal dismissed, with costs. Richards, J., who was present when judgment was pronounced, said he still retained the opinion expressed by him in the court below, but, not having been present on the argument of the appeal, gave no judgment. Btatoncnt 1^4 [Before the Eon. Archibald McLean, 0. J., the Son. J^. M. Vankoughnet, Chancellor, the Eon. W. E. Draper O B., Q. J. 0. P., the Eon. V. Q. Esten, the Eon.V. C.8pragge, the Eon. Mr. Justice Bicharda, the Hon. Mr. Justice Morrison.'] Oh ar Appbal tbom thb Coubt op Common Pikas, Jamibson V. Fisher. DorBer-Jointure-Marriage tettlement-Lex loci rd tita. Bj a marriage contract executed in Lowpr rnnn,io ♦»,„ • * i j .. ■m consideration of certain pro'^^^^^^^^^ Kid av?.rrr^^^^^^ 'Vi^'T^' o/Ltzs^ made of 'lands in Upper Canada^ '^Iw fit th i Hm""'"/'"" ^''"/ which iight be afterwards acqulied L Mm '°'' " [VAUKonaHHBx, C, dissenting.] The action in the court below was by Margaret Fisher, widow of John Fisher, deceased, against James Jamieson, seeking to recover dower in certain lands in the township of^Hungerford; the declaration in the cajio setting out in detail the lands in which the demandant so claimed dower. ERROR AND APPBAt RBPORTS. The defendant, for equitable plea said »th^t- h.f ^rsfrheJtdf/m^^^^ twenty.sixth'darof 0^^^^^^^^^ °'^^«ly. on the one thousand eight hundred a^d t T' ^^ ^""^ ^^'^ marriage contract in wrUino.V„« *^«°*y:0"e, a certain at Quebec, in W Canada h.'^^^f^^ ^"'o punter, and it was thereby stbuktP^fn?'^ ^V""'^ the goods and chattels Sn Si I "^ ''•^'■^^•^' t^^at each of them had aT weH L 1 *"°^T°?> ^^ich they thereafter acqS duHni t' . *^?r^''^- *^^^ ^'^^"J^ respectively bl the pr^eft.'" ' ':L7lZ'%'''l''''' . the same should be acquirl , .ui t^ ? ' ^7 ^^°°» thereby stipulate and a^ree that in ^'T'^^*'^* ^^^ the said ji FMer she shonl,! 1 W^'® ?^® '"^^^^^d or hold any dow^r of and nthl 1°'^^"^*^*^"'^ **> ^^^^ ^«A.r, or whereof he sholtl^' °^ ^'^^ «*^^ '^^^^ any time during Ihe^ marr L ' aT °' ^« ««^«ePEAL REPORTS. 1863. Statement. plaint mentioned to the Commercial Bank of the Midland District, and the said «/ hn Fisher afterwards departed this life, and the tenai.it further saith, that the said demandant, after the death of the said John Fisher^ demanded, took and received the said goods and chattels, lands and tenements, which by the said marriage con- tract were agreed to be her proper goods and chattels, lands and tenements, and after the death of the said John Fisher, then took, had and received, the said sum of one hundred pounds annually, of the moneys of the said John Fisher, in the hands of his personal represen- tative year by year, from the day of the death of the said John Fisher hitherto, so stipulated and agreed for in the said marriage contract, and the sum of three hundred pounds, payable to her on her surviving the said John Fisher, and also the clothes and linen with the watches, rings and jewellery, of the said John Fisher, at the time of this decease, and the tenant says that the contract and the acceptance of the provision therein • made for the said demandant, are a good and sufficient jointure and release of dower, and that the demandant hath elected to take the same in lieu of dower." And for a second plea on equitable grounds, that " the said John Fisher after his marriage with the said demandant, was seised of and in the tenements in the plaint mentioned, and during his life-time sold the same by deed of bargain and sale by way of mortgage to the Commercial Bank of the Midland District, foi a good and valuabe consideration, namely, for the sum of one thousand three hundred and sixty- one pounds seven shillings and seven pence, and therein covenanting among other things that the said bar- gainees and their successors and assigns should and might at all times thereafter peaceably and quietly have, hold, occupy and enjoy the said tenements without the * let, suit or incumbrance of the said John Fisher or any . one claiming under him, and the tenant says that he is seised in fee simple of and in the said tenements, and that he derives his title thereto by deed through, from and under the said Commercial Bank, made to him after the said conveyance made by the said John Fisher to the said Commercial Bank, and the tenant further says that John Fisher afterwards departed this life, hav- ing first made his last will and testament in writing, duly executed according to law, and thereby devised to the demandant the whole of the revenue to be derived BRROR AND APPEAL REPORTS. from his estate in full of all benefit to be derived by the demandant from the said John Fisher't estate, not ex- ceeding five hundred pounds per annum to be paid to the said demandant for her support and thak of her children and their education, and the tenant further says that the said demandant after the death of the said John ±uher demanded, accepted and received the said sum of five hundred pounds, annually, from the time of the death of the said John Fisher hitherto, and the tenant says *hat the demandant claims title to dower as afore- said )y, under and through the said John Fisher, and not otherwise, and that thereby the demandant hath elected to take the same in lieu of dower, which falleth to her of and in the lands of the said John Fisher, deceased, and that her said dower was and is thereby waived and for ever barred." ^ The demandant took issue upon the jSst plea. And by way of second replication to the said first plea said, "that at the respective times of the execution ot the marriage contract in that plea mentioned, and of the marriage of the demandant and of the said JoA» ±isher, the demandant was an infant within the age of twenty-one years, that by the said marriage contract no good and suflicient jointure binding on the demandant (being an infant at the time of the marriage,) was pro- vided, and that the demandant had never since the death of the said Jb/m^w/fer accepted any of the provisions made by the said contract for the demandant, nor hath she elected to take any provision thereby made in lieu or dower. The demandant took issue upon the tenant's second plea. The defendant joined issue, and at the trial called the plaintiff as a witness : in her evidence she swore— « I was married on the 27th October, 1821, at Quebec, the^marriage contract made the day before; I then resided at Quebec, Fisher at Montreal. I ^as born lOth January, 1802; I am not aware of the extent of ^jMer« property when we married; Mr. Fisher died drd February, 1868, at Montreal ; the house I live in now my husband bought and we hAve lived in since; 246 J4 W- ' 1863. SUtement. 1863. BRROH AND APPEAL BBPORTS. li.iL Btone house No. 44, St. Antoine Street, Montreal ; I do not know its value ; I occupied it ; I consider it of more value than £1000, perhaps £3000; I remember Bigmng.the marriage contract before Mr. Tetu, the Notary m Lower Canada, Fisher carried on business in Montreal; I never claimed to hold property separate Irom his at any time ; I cannot say what property he had when I married; I supposed I was marryine well and never had a reason to doubt that; I believi Jfisher had no lands and houses when I married ; the property called the farm in the will he bought after I married, and he parted with it long before he died ; the turniture in the house when he died is there still and I r cupy it ; I was not paid the £300 mentioned in the mar- "if^.AA '°®'?*' never got it; I never asked the annuity of £100 mentioned ; all that my husband left when he died was the house and lot in Montreal, no money. He left property in Upper Canada, I believe; I never got any property from the estate; my son acted in the settlement of the estate; an inventory was taken of the effects and they are in the house still. The farm fiui.™..„t T 5 mountain was sold several years before Fisher died. 1 do not remember whether I signed off my right or Cross-examined.— '' At the time of Fisher's death his affairs were rather embarrassed. My son was appointed to look after the estate. I have never, since Fisher's death, taken or appropriated any goods ; just continued on living at the house and using the furniture. Fisher had been out of business several years. The farm was sold seventeen years ago. The family reside with mo in the house ; four of them live there. I have not signed away any thing in respect of the house I live in. Ihe tarm spoken of was a valuable one. Hammond O^owan, a barrister and advocate in Que- bec, was called as a witness, who stated, <» I am fa- miliar with the old law of Lower Canada. 1 look at the marriage contract. By the French law the widow 18 entitled to half of the property owned at the marriage, and of all acquired in direct succession, that is if there be no contract. This contract alters that. This con- tract is a perfect legal one in Lower Canada, and that though the plaintiff was not of age— her parents be- ing parties. (Custom of Paris.) The customary dower attaches on immoveables. By this contract the amount I ; ERROR AND APPKAL REPORTS. m is no other propel Mth^^^^^^^ f ."«'• •"" '^ "»" "^■ dent to pay lKL« S,™ 7 ""^ ""^ "■""»«« «»«- charged »ith rhaSnli*™ .'5°'? PrP'^i^' wonid be wonia be charged Sthf!^^.^"-''''^''?''- '^''^ f>™ Bho released it?' »'"^Sy "™" <"'"• °°'«» traet acts as a mortZf^T, ~ ^''° ?''"'''S» «">- less this was re^sTS" '""'^ '"«'"■■•' = '''»''"- The marriage contract, after reciting that it was entered .nto by John FUher and the demandant (tZ Crl""1^ """°«'' ■"' '•"'" -°J mother as al" ler bro her her friends and gaardiane, and sti^Iht "nongst other tbmgs, that each of the part „s £ pay h« and her own debts, proceeded as follows: Jt's^rjhTsXt^isTrtteirbfS^ stipdated and agreTb^SetestU' l^'''S:1k h?fXr:rf:"t'd\i„tdr*''%^'''^"*^^^ of the sinceTe aff lt™f i rnafhCf er" T'^ every, the effects, clothing and linen wWchm,; i %°^ »d^;wXT.''' '"'=*"'"' -" n-^] waS,,"?;/;- "And in addition thereto, the said John Fiaher, the fc J! (if 'I .... ..j 248 ERROR AND APPEAL REPORTS. 1868. Btotement future husband, hath given and doth give to the said Miss Margaret Hunter, the future wife, also if she sur- vives him, the sum of three hundred pounds, current money of this province, to be at once paid unto her, and which she shall take either in money or in furniture, or moveable eflFects belonging to the estate of the said John, Fisher, as she may think the most to her advan- tage, and this according to the valuation of the moveable property which may then be made." "And lastly, the said John Fisher, the future hus- band, wishing to provide the said Miss Margaret Hunter, the future wife, with suitable maintenance, hath by these S resents created and constituted in favour of the said liss Margaret Hunter, the future wife, assisted as aforesaid, and accepting thereof, the sum of one hundred pounds, current money of this province of Lower Canada, of a life-rent and pension, being and forming the exact interest at the actual rate of the sum of sixteen hundred and sixty-six pounds thirteen shillings and four pence, current money of this province, said rent being payable in and by two equal payments of fifty pounds each every six months, and in advance to the future wife up to the time of her decease, (being until then a widow,) and which said life rent of one hundred pounds said currency, in the case of the said Miss Margaret Hunter, being then the widow of the said John Fisher, should think fit to marry a second time, shall from the day of such second marriage of the said Miss Margaret Hunter be reduced t8 the just half, and the heirs and legatees of the property of the late John Fisher, the future hus- band, shall be bound to pay. the said Miss Margaret Hunter, from the day of hf^r said second marriage, only the sum of fifty pounds sa. i currency of the province, said sum being payable also by halves in and by two equal payments of twenty-five pounds currency each, in advance, to be accounted from the day of such second marriage of the said Miss Margaret Hunter, the future wife, up to the day of the decease.'' A verdict was taken for the plaintiflf subject to the opinion of the court upon the evidence and facts ; and after argument thereon judgment was delivered in favour of the demandant in Michaelmas Term, 18fi2, which is reported in the Common Pleas Reports, vol. xii., p. 601. BRROR AND APPEAL REPORTS. 249 first plea. ^ ^ *^' ^"=*' supporto.I the said "*"• ted, there was nothing "'^'"^ ^^'"S '»^'°>it- if ""^' '^^ ^■' "»" ''^- ^- ^"^enon for the eq"ity Within ie Tu' t of use/ .".d b'™" '°T' '" kaye operated a, a bar of dower To JJ '"1 "°''' i' 8 not neceM»r„ ,1, . ' ™""'- ■''• we»te such a bar "•"iage XuTd i„, ' '""'"°™' " ''»°'™'" of., . go BUOUia contain an GJrnr*>aa ..«„ • .• Statemont dower; it will be sufficient if anTn.. ''"""^^^*'°" ^^ can be gathered from !h! ''°" '° *° "^"°""«« court sh'ould Te f ^i L^ttT^; "; ^'^' ^' *'^ «houldgovern,itwould'b::ffietnt 1^1 was executed in Lower Cin.T I *^' '"'"^''^^t «fe*ei„g a par^reSut^hTi'slttr ^^^^ > y Jaw of that pro„„oo it is binding „po„ The settlement was a stood onii!f.H. ■ • ^ '"f -'* 5- '-e effect it ZZl^Z'Zlt.r instrument had not crm^mn^ «i>wer, even if the H.ht; and the Z:Ztl:ZX^ ^ ^'^ when, Tin .riyt'trd'SfS-r'""'"'^ -nana desire to n;ajf';tS:rt"n"t:r- 82 VOL. II. iff' ill 260 1868. BRROB AND APPEAL REPORTS. AmongBt other cases, he referred to and commented on Oorhet v. Corbet, (a) Caruthers v. Cnruthers, (b) Drury V. Drury, (c) Vizard v. Longden, {d) Killen v. Campbell, (e) Dyke v. Rendell, (/) Hamilton v. Jaok- son. {g) Bright on Husband and Wife, p. 45U. Westle- bury on International Law, p. 383. Mr. Jellettf for the respondent. The lex loci rei aitce is that which prevails as to the effect and capacity of the contract to deprive the widow of what w^uld otherwise bo a clear legal right. {Story on the Conflict of Laws, sees. 54, 63, 363, and 364.) But even if this were otherwise the evidence shows that the provision stipulated by the marriage contract has never been received, so that under such circumstances there can be no bar to the claim set up in the action, and the dower renounced is that in Lower Canada only. Argument, which Hmits the effects of the renunciation and forms no bar to the claim of dower in Upper Canada. Mr. Strong, Q. C, in reply. The judgment of the court was delivered by flsTEN, V. C. — The right in question is a right to dower in lands in Upper Canada. It must, therefore, be regu- lated by the law of Upper Canada. By the law of Upper Canada, a wife may be barred of dower by a jointure made pursuant to 27 Henry VIII., chapter 10, section 6, at law J or in equity by any reasonable provision made for her byway of jointure or for her livelihood or main- tenance for her life, to take effect immediately on the death of her husband; and if an infant at the time of the marriago with consent of parents or guardians to (a) 1 S. & S. 612. e) 2 Eden 39. e) lOIr. Eq.461. g) 8 Ir. Eq. 197. (6) 4 Br. C. C. 500. (d) 3 Atk. 8. (/) 2 D. M. & a. 209. ■• i' BBROR AND APPEAL REPORTS. 251 I»63. which they may prudently consent. The bar is not necessarily founded on contract, for the wife needs be no party, and when she is an infant can be no party, to the transaction. It is a power given by law to the husband, who must however exercise it reasonably, for an unrea- sonable provision would be deemed fraudulent and void at law, and which is followed by analogy by courts of equity m cases of equitable jointure ; at all events when the wife IS an infant at the time of the marria;,^e ; for when she 18 of age, and therefore capable of contracting and 18 in fact a party to the contract, it seems to depend entirely on the contract. There can be no doubt that the contract in question in this case was binding on the husband, and could have been enforced against him in any part of the world. Dower of lands in Lower Canada is expressly renounced, but not dower in lands m Upper Canada. The provision made for the wife consists of her linen, jewo-^ery. &c., and a gross sum of £300 to be paid to her immediately on her husband's death. Neither of these provisions would suffice to bar '"""""''"" her of dower, as they are not for her life. An annuity of £100 a year, however, to be reduced to £50 a year i8 provided for her during her life, and it would appear from the time of the marriage, and it is added for her suitable maintenance. Now this annuity is not said expressly to be in bar of dower in lands except in Lower Canada. If it is to be a bar of dower of lands itf Upper Canada it must be by implication. It is not called a jointure, which has been held to be a sufficient indication of an intention to that effect. But it is said to be for her suitable maintenance, and in the case of Visard v Lovgden, that expression or a similar one was held to be sufficient to make the provision a bar of dower But when it is considered that this contract was con^ eluded in Lower Canada, where the parties were domi- ciled, with exclusive reference as is evident to the law of Lower Canada, it would be too much, I think, to imply an intention to make this provision a bar of dower of lands in Upper Canada, where it does not appear that ^;w:i ' I 262 ERROR AND APPLAL REPORTS. 1863. Jadgmfiit. tho husbanf! latl at that time any lands, and which do not appear to li ..ve been in the contemplation of tho parties, from the use of expressions to which by the law of Upper Canada a particular meaning not in the contemplation of the parties is attached. I think the judgment is right, and should bo affirmed. Vankoughnet, C, said that ho could not bring his mind to tho opinion which tho majority of tho mem- bers of the court entertained. He thought that the pro" ision in tho marriage contract for suitable main- tenance for tho wife after the death of the husband should be taken and held as a provision for jointure In lieu of dower, and of all claim upon the husband's estate. It certainly seems as clearly so as the provision mado in Vizard v. Longden affirmed by Edward Sugden in Hamilton v. Jackson, to be unquestionable law. It seemed to him that it made no difference that the con- tract was made in Lower Canada. The question was did the contract provide against the claims which as widow she would otherwise have on the husband's estate ? He thought it did, but he agreed that the appeal should be dismissed, as the plea did not properly set up the provision for maintenance in lieu of dower. The plea alleged an express release of dower, and an election by tho widow to take the provision made by the contract, neither of which was proved. The annuity of dGlOO per annum seems not stated by the plea to be in lieu of dower, or by way of jointure. Per Curiam. — Appeal dismissed with costs. ERROR AND APPEAL REPORTS. 258 hy the continuing Harper v. Knowlson. Partnerthip — Partntri rtlirinj to lit indemnified parlnen. ^' V^un' " *'"'"^'"8 pn'tnership, entered into a joint HpopulntloB with C, Ai D. for tlio purcliasu nml kiiIi- of UwU ; iilt('rwuri>i K, wiia adoiitted into the concern npou th« umlcrsiiindirit? th.it eacli sl'ioiiia U entitleU to one fourth of the profits, uiid liable in tliu Hume pro- Bortion to nny Ios-^on incurred. For tin; purpose of cairyini^ on the businesK of the coparincrship, the parties were in iho hal)it of '»■•«. OOUtUing notes whicli were made hy E, and "'tidorMed by A. & '■'. aj,( by C. and D. in their individual names. Atu r tlie partuers'ip U,ul beep in operation for nearly three years C. wrote to A.^Si IJ. m. H jji-q. Closing to retire from the concern on rec-iviiij; a certain an ovui in andstiikm at a valuation, ho a).'reeingfur a ecrtnin period toe tif; ue to endorse renewals of the notes of the firm then out.'tandii, •. «*« •oooramodation endorser, which proposal was communicated t .'' . but nothing further was then done with regard to it. Hhortly after- wards D. made n similar proposition to A. & IJ. and K. on their " assuming -'!! my share of the liabilitie.s incurn-d by or f„r tlio saij company, exoej ting only my liability for lli or lo moutliH as accom- modation endorser utter Mr. Knowlson [C] on the paper in tho Ibink of Upper Canado," which proposal was accepted by A. &, U and E, Subsequently both C. & D. by a joint meinorandun> formally relin- quished their interests in the company, but it did not appear that D.'s stipulation ns to endorsing the notes was ever commiinicnted to C. The notes so endorsed by C. and U. had tieen nil consolidated into one note of £3,200, and upon a renewal of this note an action was subsequently brought against all the parties thereto, and a sale of D.'s Ittuds was effected under the execution issued in tlm t aetii n, which realized only a portion of the amount. Thereupon U. filed a bill against C. seeking to make him. as prior endorser, pay the amount Btili remaining due in respect of tho judgment, to reimburse D. what his lands had sold for, ond also to mako up the loss sus- tained by him in consequence of the sale of hi.'s lands at, ns was alleged, a great undervalue. Under tho circumstances of the caso the court below treate '""^'^^'■"" «f '^^' PJ^^intiff, the aetendant, and a him composed of two nerson, ii, /^ . , ^I'l'"-' v^'iu, 1(1,1 at Liinilsav. and tlnf nf the Commercia Bank at Port TFnnr^ ? '^'''^^^' of to their liability between 1^1"^,'^'''"^ agreement as would be that ^heTrontinued 1 'l7'' '^l '"^'^"^"'ent *ame manner that thev Z« i' ^^ """ ^-^^^ ''''' '" *^' ^oth are entit ed to b« TnT -^'V" ^'^^ ^'^^ P^Per. continuing partners bl ^nrf^'u^"^^^^ '* ^Ae *ion, as biWn themse ves I?'' "^'^T^ indemnifica- iwrtners, and liab e a" sich ThJ^V' '^'''''^'''^ Sot disputed; but i? is cont JJ 5 Pos'tion, indeed, is ^■■«ld on his retirement mak««Ef ''"* '^'^ P''''"^'' with the continuinrparrners a„d Zr'"-".^^°PJ«'''«^'^ ''""'^'" Aad any concern mthth.l' *"* ""'"b^'' of them of them ; that,Tn point of SThtV "'^'^^ ^^ ^^« ^^^^^^ did make separate and ind.nf'iV''^ '^^'''"S P^'-tners ferent nature- tLf^P'"*^'"* agreements of a dif- from CS;,thi]f 7wf P"^'^^^/ ^- ^"demnlly ex'eptforindemn^vfVn5ri, ''•"'?*^^ "° stipulutioj JJzranrhiT^i^vttd^^^^^^^ lUcDermot, Wahh mdfZnl f ^ * to assume that to him. To these ar^umen?fT"^ communicated them conceded that in he TbTenee ofT"' '"''^'- • ^^ ^' ^^ supposed to be contained in 1. ''''^'''' stipulation intendment of law would be th^'^'^r ' ^Srcement, the tHe retiring partners „ def u o'? \llTV'''''''''''> ners indemnifying them would Li: m ^°"*'""'"g P^rt- then cadit 9w%.«t^, because A^.l? 'u '^"'^^ ^'''^--os, of any such stipulat on must be^eZ??': \'''SM^or.nl according to th^ legal co^tucuf roTtL^l^.L^^t^'^li Se;;r:;St;:[L^:^:r^;^^^^^^^^^^^ ^Ignorance of a right for which h«h?^ ' o"f agement in -dupon thes«p|o3itio7ti:?oii^^-i^2i:;i^^^ « i fi • 'Ml* * ' -1 258 RRROR AND APPEAL REPORTS. 1863. Harper T. Knowlion. Statement. having so acted, must be precluded from enforcing such right against him. It is said that Knoxvhon being aware of the existence of Harper s agreement was bound to enquire into its terms. But I cannot assent to this proposition, which is also somewhat inconsistent with the argument that each had a right to make his own agree- ment, and neither had any concern in the agreement of the other. Knowlson knew that he could not be deprived of any right by an agreement between Harper and the continuing partners, and he had a right to suppose that if his position was altered by it in any way to his preju- dice it would be communicated to liim. Ho was not con- cerned therefore to enquire, and entered into the engage- ment relative to the renewal of the paper without appre- hension. It is then said that Harper had a right to conclude that the stipulation which he had made had been communicated to Knowlson by McBermot, Walsh and Lang. But it waa Harper's duty to communicate it to Knowlson, and if he relied upon the continuing partners to perform that duty for him, and they faileo to do so, he must be the sufferer who reposed confidence in them. But those gentlemen can hardly be blamed for not making such a communication, for tliey say, one and all, that they never understood that Harper stipulated for indemnity from Knowlson. John Knoivhoa first made his proposition to retire from the firm. Harper was a member of it, and, in offering the use of his name for a time for the purpose of renewal, Knotolson knew that he should have the indemnity of the three remain- ing members of the firm. Before this proposition had been conclusively accepted. Harper also proposed to retire from the firm. This, if carried into effect, would, of course, alter the position of aflairs. Accordingly all the partners meet on the 25th of June to discuss the matter, and it is agreed after a protracted discussion as to the time during which the renewal was to continue, that both Harper and Knowlson should lend their assis- tance towards the renewal of the paper in the Bank of Upper Canada, and then the date of KnowUons proposal is altered from some day in February to the 2oth of June, and Knowlson must be considered as engaging to allow the use of his name, on the understanding that Harper was to do so likewise; and it appears to me that if at any time' when Knowlson should be asked fcr an endorsation he should be informed that Harper's name was not to be appended, he might refuse compliance, fincl would be protected in such refusal by a court of equii appe Was 1 doubi cular appoa subjec tered case t for mc the sai Can ad attach refused name \i tion of name. would I to endoi would ei tain of t in quosti the niea think it anj such niaking a and in tlic tint this ( cal except form the s the suppo; order that son might did not int sorry to im ■f think th€ exception ti tinuing pan mmd, or to thereby an ^n their rcl; any such idt continuing j agreement t h's intention 'natural concl the expressio ! 'ih ^RROR AI.D APPEAL EEPOKTS. IS63. equity. It is observable tha^ 77 appear on the Commerchl B.nf'"'^'''* "^'"^ ^'^^ not J«s not to appear orthe r^T f '^Z'' ""^^ "« doubt ^--v^ doubt that ui jor the e, uVs". !? «/ J'' ''"t I canno ^ cular reason existing. aX //^^ '.""^ ^''^ ^"«« * Parti- Know^on appear, and no exm^Jj ^i'^>'per's name should nof -^ject,the posS:; t rr-d"' '"""r -^^« «' ti' :"' :f 'T^'^' '0 this p^pe " S''^ '•^--> "nal- case to be otherwise in th;« S^ ^^^ suppos ng the [- -0 to deeide this'o 2"^^' '']' uTneeelsary the same with re-a.-d to tl,I ^ • '"^^^n^ment must be Canada, on whicryri^Srr' '" '^^^ ^'^"k of ^pper a"aeh no importance to^.''""^ ^«« to appear^^ f ^•ef-used his emlorsat on on onVr""?''""^'' th^t ffarpet n.a,e was appended o tVZZ'Tl T^ Kno.u!^ t'on of that fact to K>,ruil ^''P''',' and the coramunica the n,eani„g ,vhich has been^Tt ..r?°''^ realj/bore' t'nnk It would be extremelv ;:"''''''^d to it. But I any such meaning to t '£ 5''''"^"'^^' *" *"^«h "^"k.ng an important al 'ratify inT'^^'f^' ^^'P'^ was a (hn the legal rights o t tp ?t es ^'^V'^'-''^ P^^^^'^n ' *','* thus effect would be inLulr;. ^'" ^* ^^ «"PPosed eal exception to another term t i • "" "''^ Parentheti- form the subject of a sub.foT.- "' agreement, and not '\ supposition tha? it wis f' '"P">^'''" unless upon order that it might escan?nh P''?'''^ ambiguousi/?; -? "^ight be en%rl;;:T -^t^T'^ d'd not intend? An unwonhv ob" P^?"^'"* ^^i^h he f^J to i^p.te to a gen leman in "m''' l^''^ ^ ^^^'d be ^» their rclativ^ positionT^V '^ '"*'"^^^ to be made any such idea to the m nd ' M " %^\ '^ ^'^ "ot convev continuing partnc s f '''}T' -""^ ^^owUon or of Ihe 259 r? 1863. Harper T. Knowlaon. Statement ERROR AN& APPEAL REPORTS'. least, extremely amblguorw, I think the plaintiff is not at liberty to put upon it the construction for vhiob he contends. I think, therefore, that the plaintiff is not entitled to treat the dflfendant as a surety to him, and to require him to indemnify him againal; the liability in question. In default of receiving indemnity from the continuing partners the^ are, fuj between themselves, jointly and equally liable. It does not appear in evidence, but h was understood at the argumcni, that Knowhnn had oaid more than JTar- »er, and in this case no' . aiycan Harper claim nothing from him, but I think ov is oititlcd to be re-paid by harper a moiety of the t xoe;. In this view of the case the plaintiff and dofea-.'nrt aro co-sureties, and the continuing partners are pxincipal debtors. I should think the proper form of •uv:\\ a suit, independently of any alteration in the piactioe, would be to make the principal debtors parties, utid to pray relief against them in the first instance. The continuing partners are liable not only to Knowlson, but also to Harper^ and Harper cannot make his case against Knowhon, without atiaesarae time making KnowUon's case against the conviiming partners. If, indeed, they are insolvent, it may afford a suflScient reason for jiot making them parties. A surety proceeding against a co-surety in equity to recover not merely a proportion of the debt according to the whole number of co-sureties, which is all he can recover at law, but a proportion of the debt according to the number of solvent co-sureties, is not obliged to make the insolvent co-sureties parties. Bttt the evidence of insolvency does not seem sufficient. McDermot and Walsh merely say that they have made an assignment for the benefit of their creditors, and are not at present able to satisfy the plaintiff's and defendant's claim ; .and Lang merely says that he 13 embarrassed in his affairs. Independently of the late orders, I should think, therefore, that they would be necessary parties to the suit, but my determination on the main point probably renders this a matter of no practical importance ; and under the eighth rule of the sixth general order they seem t- -. >cessary parties. The defendant is, I think, entitled tc < josts. If the plaintiff had made the demand upon tiie u^fendant, which alone he was entitled to make, I must intend, from the form the present contention has assumed, that he would hare acquiesced in it, and that no suit would have been ttecesaary. BRROR AND APPEAL RBPORTS. 261 eJ^^:ii^::r ^^^^p ^^f "?^ -^^^^ '^63. the othor 0^ liem to tZIf ? r ' ^?""^ *° indemnify ^— ^^ that the said defendant hath S" or caused ST'""! and «ati^:ed tc the said the Bank of TtLT 7. ^® P'i"^ sum of .oWn hundred and twentLL iS?' ^*"5^^ *^« five cents ia excess of 0°^!?? S t},?„ °i^" """^ "^*^- ordered that the said XinUff I J T^- T""''*' ^' '» jaid defendant the saT um of e J ^1^ .'' ^^ twenty.„ine dollars and six^y.fiJe i An'^ "f"^ ffltster of this court. '' '° '^ '»«'' V "■« Jf.rs: s;fV:,.^/M„ntr' ^"" decree ^as affirmed; wheriioon th« nf? *?£ ^o^^goiDg to this court, as8igning\:^Xns'of a^pTalf '''''''' rcsU^dttiTfauJe^y tTh?^^^^^^^^ -- *^« "'-'■ the bill in question, a/d Me SreX'^rf '• ^' the payment of the whole of it. "''^'^^'^J^ ^'"^ against and\?:l^l;Linf pTrSlrs"^^^^^^ 1 1^^^"-' the fourteenth and^nfneteenth dCf Mav ^'^^ t"^'^ '! eight hundred and fiftv «;i «f^ ? • y» °°® *^o"sand obliges the remlinfet^^^^ VV'' ^°^ endorsement of the respondent "" *^' P"°' paUrJh^T^^^^^^^^^^ from the and of each other, each looking to the rI»°-°^ P''*"''"' for his general indemnitv ai«?nof vl "laming partners sidt Jio^JCwnXmh'er'et^^^^ '" * ^^^"* -- ^, moving irom the remainxng partners to himself VOL. II. Si J if 1663. iRhOR AND APPEAL REPORlS. BMmnt the benefit of which he obtained and which was separate ^ and distinct, and different from the consideration received ^' by the other. The appellant's agreement to endorse Kaowuon. ^^g p„j, ^f jJjq consideration given by him for the one thousand five hundred pounds which the remaining partners were to pay him and the part of the assets he was to receive. It was competent to each to annex to his agreement any condition he thought proper, as he was not under any obligations to endorse at all. 5. That the partnership relation between the appel- lant and the respondent ceased when the original bill was taken up, and the ordinary relation of successive endorsers arose, both having become accommodation endorsers for the express purpose of enabling the remaining partners to pay off the partnership bill. 6. That each was bound to contribute to the payment of the original bill ; but the remaining partners having agreed to pay it all, each of the retiring partners could agree to assist them to do so with his name to the same extent and subject to any stipulations as if they had never been liable upon the bill at all, and the remaining partners having actually paid off the original bill, the partnership relation and liability ceased, and the relation of successive endorsers arose. 7. That the appellant was not bound under the circumstances to communicate to the respondent his arrangements as to endorsing for (he remaining part- ners. They agreed to pay him one thousand five hundred pounds in money secured by their own notes and mortgage, not the money or mortgage of the part- nership, but their ownj each made his own bargain and the best bargain he could. If the appellant had agreed to endorse, and had not stipulated for the respondent's endorsement prior to his own, he would have been bound to endorse whether the respondent did or not. ^ 8. That the position of the respondent was not inju- riously affected by his ignorance of the appellant's stipulation, (even if he were ignorant of it,) inasmuch as the respondent agreed unconditionally to endorse, as appears by his proposal of the twenty-fifth June, addressed to the Land Company, which must mean the remaining partners, and he would therefore have been comp( had a^ 9. ! depriv at libe andde assets, aware. 10. in evid< against In su followin 1. Be represer the app{ the Lino as partn senting i the appe to the pi exists or 2. Bee Tfinewal o all the pa of the do not give t responden in effect existing j( 8. Beca into by him tion that tl equally liai was a frai agreement would be a lant to insii 4. Becau BRROR AND APPEAL HEPORTS. 268 atiiberlv to make IS, 1 "'P.'^'"!™ ifWoh he v« aH the J"..'; S'delThe-rs oZrh?:^ .itrr.;"praraj^S'adt *T|5 listing jS tabilit" ""' ''°""°"»"" "f """^ tie" intoby^hTfot r&ntt°.V-? '?f ■"•^»/™=°' ™'»«J «nld be a fraud e^n Te "spontn" t aC" ?S a'n f iMt to insist on any such agreement. ''''°'" _ *• Because the other pM-tners of tie Lindsay Und ' •■f 264 ERROR AND APPEAL TtY^^OUTS. II ' II 'I 1868. Company are necessarj parties to any suit in 'which a ^— v— ' decree could be made in favour of the appellant. Hkrp«r T. Knowiion. 5. Becauso upon the whole facts of the case the appellant is not entitled to any relief against the respondent, and the decree is correct. Sir J. B. Robinson, Bart., Prest. — The facts of this case are fully statf <1, and I think quite accurately, in the judgment given ii ' he Court of Chancery by Mr. Vice- Chancellor Eaten, except in one particular, in which, if the fact had h'^r stated as it seems to me to be, upon the evidence, lu would have appeared that there was less to be said in favour of what the plaintiff was unsuccess- fully contending for below, than the Vicc-Chancellor appeared to suppose there was. I allude to that p'^^ssage in the Vice-Chancellor's judgment, in which he appears to have been under the impression that the defendant must have been aware of f^he nature of the proposition Jnagmmt. which the plaintiff had made, to be allowed to withdraw from the partnership or association upon certain terms which he specified. The learned judge seems to have said that, under the impression that in the tra'asfer which was executed by him and th<' plaintiff, a d the continuing partners of certain e ' "ts anfl j)ropert^ f the firm, mention is made of an agreeoiont between the plain- tiff and the contmuing partners, dated 19th May, 1856. The transfer npokeu of r st, I .hi', k, be the w iting marked exhibit C in the appeal cauo, printed near the foot of page fifteen ; but that makes no reference to the only paper dated 19th May, 1856, which is a letter fi om McDermott & Wahh and Lang to the plainl! n -■■ " ich the terms which the plaintiff had pr oposed are jnt ed. For all that appears in the transfer spoken of executed by plaintiff nr.d defendant, and dated 25th June, 1856, the defendant had not necessarily any knowledge that the plaintiff had stipulated that in any liability to be assumed by him upon paper to be held by the Bank of Upper Canada, he should stand in the position of accommoda- tion endorser after Mr. KnowUon. The main facts of ERROR AND APPHAL RBPORTB. S65 the case are, that the plaintiff and the defendant to- 1863. gether ^uh one Lang and a firm of McDermott and ^-v^ WaUh having associated together under the naniQ of """"• the I^^ndsay Land Company, for purposes stated in the ''"""'" bilJ, the defendant first and afterwards the plaintiff ' desired for certam reasons to 1. ave the firm; and severally at r],fferent times made proposals to that effect to the o hers who would remain partners in case of their being allowed to withdrnw. At the time this was under consideration the company had a note for X3,200 aeld by the Bank of Upper Canada, to which all members of the firm were par des, as makers or endorsers, which had been given for advances made by the bank, which note had for some time been kept afloat by renewals. The parties had signed in their ordinary names, that is the plaintiff, defen. .nt, and ian^, each individually, and McDermot and -^aUh, who were a trading firm for other purposes, iu he name of their firm. They were all equally interested in the concern of the Lindsay ,.,,„.„, Land Company tl „ .,, th. plaintiff, defendant, and rairo^foir --^^^^^— n^ It was settled among them on the 25th of June, 1856 !?T. ^^^^fi'lfj arranged that plaintiff and defendanJ might both withdraw and on what terms. Thit inde- pendently of certain mill property, which it was assumed was about equal in value to the company's debts, the plaintiff and defendant should each receive a portion of the other lands held by the company, estimated to be equal m value to a fourth, of the whole; that the remaining partners should indemnify the two who were retiring against all debts that had been incurred while they were together, (of which clearly the £3,200 note was one,) and a8 the partners who were to continue in the business wisL 1 to avoid being driven to se.l pronertv at a sacnnce m umer to meet that note, they exacted o'f he plaintiff a, 1 defendant that they should agree to lend their names for fifteen months longer, as they had iil if I S6d BRROB AND APPEAL REPORTS. done before, upon such paper as it might bo necessary to offer to the Bank of Upper Canada to obtain renewals, and thus enable the remaining partii rs to liquidate the X3,200 note gradually. The bank had gone on renew- ing the note till March, 1858, when they inBistod on its being paid at maturity ; brought an action against all the parties to the note and obtained judgment; and Lang & McDermot and Wahh having as it appears no means of paying, some lands of the plaintiff were sold under execution, out of which seven thousand six hundred and twenty-two dollars were made, leaving still due the difference between that and the amount of the judgment and interest. The defendant, on his part, has paid up more than half of the judgment, and contends that he can be liable for no more than half. The plaintiff on the other hand insists that the defen- dant, as being an endorser before him on the note, should Judpnent. be made to pay up the balance of the judgment, and to indemnify him from all loss and liability that he has incurred by reason of the judgment : including a great loss by the sacrifice of his lands under their value at the sheriff's sale. The defendant while he admits his liability to the bank for the whole amount of the judgment denies that under the circumstances he is bound as between him and the plaintiff to bear more than an equal share with the plaintiff. The plaintiff founds his suit upon the fact that the defendant endorsed the note before him as an accommo- dation endorser at the request of Lang & McDermot and Walsh; and he claims the benefit of the ordinary rule of law in such cases which treats the prior endorser as surety for those who endorse after him, and so liable to save them harmless to the full extent against the note. The defendant denies that because his name was ERROR AND APPEAL REPORTS. M7 th reforo to bo treated as coming witl.in the general rule, ^.hout regard to the nature of the transaction which IIL u. "*^ "' " ''' ^•^""'"^'^-- -'"^'^ -- We think the Vico-Chancellor took the right view of the case and decided properly in favour of The defend- * ant. -Tlrere are many cases in the booka in which it has been made a question in courts of law whether a person who had become a party to a note m a particular capa- city for instance, as one' of two joint makers, without any thing to denote that both were not undertaking as principals to pay the debt, was not at liberty to show that he was in fact only a surety for the other, and was not undertaking on his own account. It might be of consequence to him to mako that appear, in order that lie might avail himself of the defence, that there was an agreement to give time to the principal, by which he as ,.,^„. surety was discharged. 'uagmtnt. The decisions at common law were not quite uniform but m general the principle prevailed that at law the position of the parties must be taken to be such as the note imports, and that extraneous evidence to vary it could not be received. What is contended for here is the converse proposition, namely, that a person,who, from his position on a promissory note, would on general prin- ciples be assumed to have engaged to indemnify against all liability any party who should endorse after him may be allowed to shew that in the particular case tha' consequence should not be permitted to follow; but that ho and the subsequent endorser were in fact understood to be incurring as between themselves an equal responsi- bility, so that although either was unquestionably liable to the holder of the note to the full extent of the promise nhieh the note imported, yet that as between themselves neither was undertaking for the r her, but each assuming a liability >ffhich both were bound in the event to bew 268 1863. ERROR ANb APPEAL REPORTS. If ^^^^ equally between them : neither being left to bear more Harper ^^^^ ^^^. sbaro. The same principle must govern both Knowiton, dasscs of casos. These questions at law will now be seldom raised since the defendants have been allowed to put equitable defences upon record. I refer to the case of Pooler/ V. Earradine, (a) and to Purley v. Loney et al. (b) There can be no doubt now, that if the plaintiff had paid the whole note and sued this defendant at law to recover from him the amount on the principle that as the prior endorser he was bound to save him harmless, the defence which is here set up by the answer could have been pleaded at law as an equitable defence ; and here the parties are discussing their rights in a court of equity, where beyond all doubt their just position in regard to each other, according to the truth of rhe case, could always have been shewn. This subject is more fully discussed in Mr. Pitman's Judgm«t. Treatise on Principal and Surety, (c) than in the text books on bills and notes. I refer to the case of Cray- thorne v. Swinburne, (d) and Lering v. The Earl of Winchelsea. (e) The latter case was on the equity side of the Court of Exchequer and was cited at length in the common law case of Oowell v. Edwards, (f) Both decisions touch upon points which it is necessary to con- sider in the present case. If we consider that the debt out of which the note for £3200 grew, which was severally endorsed by these parties, was a debt for which the plaintiff and defendant were liable to the full extent in common with the other members of the firm, and for which they had not only been liable, but were still liable notwithstanding the change made in the firm; and if we consider also, that any one of the parties paying the whole of it, or more than his proper proportion, could make the others (a) 7 Ell. & BI. 431. (c) Ch. 14, pt, «,_pp. 146 to 166. 2 Bos, & P. 270, (A) 17 U. n Q. B 279. (?» fliA nlnintlff f/% n.-.'i.~ 4._ XT T^ __ =~ " i ''^' ntiic w Maljcrraot and Wahh that ho would sign after the defendant as accommodation endorser, but for the accommodation of i ■ ■ 4ffl 1 1 t? 2T2 ERROft AND APPEAL REPORTS. m 1863. whom ? It could only bo in fact of the whole firm, in "^^^^^ one sense, for all wore liable to the bank for the whole Knowison. *™ount both in law and equity ; and if he had explained to McDermot and Walsh, that in putting his name aftcT the defendant's ho would do so with the view of making the defendant re-pay to him all that he might have to pay in consequence of such endorsement, how strange an idea must that have appeared to them when they would bo all joining in the note in order to secure a debt for which all were in law and equity equally liable ? and of which, as among themselves, none could be made to pay more than the others, without having a claim on the others, to be reimbursed in the excess, unless they should come into an express arrangement to the con- trary. If either McDermot and WaUh or Lang had explained to the defendant that the plaintiff had made this particular proposition, and with what view, how could they expect to reconcile him to the justice of it, juagmwjt. aiid to obtain his consent on any principle? and with what shew of reason could the plaintiff have asked the defendant to become an endorser with him upon the note on such very unequal terms ? They both had gone . into the company on equal terms, and were about being allowed to withdraw on terms intended to be equal, though the defendant has shewn that in the arrange- ment the plaintiff came off with a better share than he did. It would be taking an unfavourable view of the plaintiff's conduct to suppose that abstaining, as he seems to have done, from making the defendant aware of the consequences which he intended to insist upon of coming after him as an endorser, he did at that time, nevertheless, conceive in his own mind the idea of con- tending for such consequences at a future day. We should rather, when the justice of the case is so plain, be disposed to think that the plaintiff, while they were all apparently hopeful and in solvent circumstances, »^2ant nothing more b'''' iisino' the words *' as accnrnTOfi- dation endorser after Mr. Knowison,'' than that if be went out and stili endorsed for the firm's accommodation, 278 1863. T. KdowIroc J3RR0R AND APPBAL RBPOBtS. ho wonld not sign till all had signed who were to remain liable for the debt. He knew that although the defen- dant had desired to withdraw, he had not withdrawn. So long aa he might remain he would be one of the parties accommodated, and whether he should withdraw or not, the plaintiff would probably have been unwilling to endorse without him, and could not in reason be expected to do so. By saying 1 e would endorse after him, he might, naturally, or a y'mr of the circumstances, be oii y understood as being solicitous or determined not to run any risk of losing the defendant's responsibility of endorsing without him ; and that would be best provided for by seeing before he gave his own signature that the defendant had given his. A banker, or bank ngent might have readily caught the idea that the plaintiff had in his mind, what he is now contending for ; but considering what the circum- stances were, I can hardly think that the defendant, j«.g^„t though himself a bank agent, if he had seen the letter which the plaintiff wrote to MoBermot and Walsh, would have sunpected that the plaintiff had such L thought in his mind, unless it was in some way sug. gested to him. Then as to the fourth point, that the plaintiff had on one occasion refused to endorse because the defendant had not endorsed, and that the defendant being told of this, put his name nevertheless on the note when it was brought to him ; it would be unsafe to infer from this any thing more than that the defendant ..cvf^ir.iy under- stood from this any thing more than .l.f«t tlo plaintiff made a point of seeing that he did not on-^oi^a without the defendant. It has not been suggested, nor liJo I see how it could be, thai whatever noce that note was which tfce pjaiatiff had so hesitated to endorse, there was any gvcand on ^hich be could have asked the defendant to assume a I: f n. 't'/ \ , -vi A m ERROR AND APPEAL REPORTS* \'L' [i'i 1863. liability greater or of a different kind in effect from that *^Jp^ which he was willing to assume himself; and in regard KnowW *° *^® ^°*® ^" question in this suit, we can see after knowing all that the parties have desired to put forward, that there really could be no pretence for imagining that the defendant would have agreed to place himself in such a position as the plaintiff is endeavouring to place him by means of this suit. We are all very clear that the only question can be whether the plaintiff's bill should .be dismissed with costs, or whether the decree, as it stands upon the re- hearing, is more proper ; ordering the plaintiff to pay to the defendant the amount of excess above his equal share of liability, which the defendant has been obliged to pay. In any event the plaintiff could have no claim in Jadgment. equity on the defendant to pay more of the judgment than the plaintiff himself is bound to pay. If all had continued solvent, each of these parties could only as between themselves have been made to bear his equal fourth part of the judgment debt. We can hardly, I think, come to the conclusion upon the evidence, that the plaintiff and defendant together, and by themselves, came on the 25th of June, 1856, or at any other time, under a joint engagement to pay the note. I mean what can be either in law or equity treated aa a joint engagement. Upon the note they became severally liable as separate endorsers, and the evidence hardly enables a court of equity, I think, to say that looking beyond or out of the note they can see a joint undertaking of the two to pay this debt to the bank. If not then, each can only .be held liable for half of the whole on another ground here, that of con- tribution to a joint debt. It may be that the evidence of the insolvency of the other two members of the firm is suflScient to enable us to say that these two members ERROR AND APPEAL REPORTS. Of it are necessarily left to pay the whole debt, and that as one cannot be held liable as between themselves to ftlT^ *5''*^''' '^' '"'''' ^^y - t^« actual state of affairs decree that what is right shall be done, namely, that the plaintiff and defendant shall each pay half of a debt which has fallen upon the two exclusively 276 1863. On an Appeal feom the Couet op Qpeen's Bench. Dickson v. Ward. Practice-Is,ue, of fact and lau>-Error v,Mle issue in fact undisposed of. This was an appeal from a judgment of the Court of gueen s Bench, on a demurrer to the defendant's second plea in a cause in that court, wherein the appellants ' were plaintiffs and the respondents were defendants, the declaration, pleadings, and proceedings, in which were as follows :—- hJ^n.f^^^^^ °^ ^^''^' 1^^^- ^^«^^«« Thompson ^J Sector Cameron, his attorney, sues U. B. Ward tA':rMS:T,f^' ^^^^-^ ^' awrit,issuTd;'n For that the defendant, having no reasonable nr probable cause for believing th?t the pZtiff ^as indebted to him in the sum%f twelve thorand dol ars and the plaintiff not then being indebted to the defendant in the said sum of money, ov in anv othflr S' 7f T«Jy/^-«eJ a certain stea^mboat S tt Kaloolah, then being the property of plaintiff to bp smed and attached by virtue%f'an attacbmeTt malicTous- ly issued from the District Conrf. nf tho tt^.-ZTj o.°"^ of America, for the district" of Michigan: brand'at the instance of the defendant, to answfr he^sairsuD posed claim or demand of the defendant aga^t tfe S79 1803. statement, BRROB AND APPEAL REPORTS. plaintiff for the sum of twelve thousand dollars ; which said sum was not then, nor was any part of it, due or owing by the plaintiff to the defendant ; aud the plaintiff avers that the suit or libel of the defendant against the plaintiff in the said court, in respect of the said supposed claim or demand of the defendant against the plaintiff, has been dismissed with costs by the said court, and the said suit is now determined in favour of the plaintiff. By reason of which wrongful and malicious seizure the plaintiff was obliged to expend and did expend a large sum of money in and about procuring the release of the said steamboat, called the Kaloolah, and for a long space of time lost and was deprived of the use thereof, and of large gains which he otherwise would have derived therefrom. And the plaintiff claims three thousand pounds. The first day of April, in the year of oilr Lord one thousand eight hundred and fifty-seven. The defendant, by John Boaf, the younger, his attorney, says that he is not guilty. The thirtieth day of December, in the year of our Lord one thousand eight hundred and fifty-seven. And the plaintiff joins issue on the defendant's plea. And for a further plea the defendant says that, after the libel of the defendant against the plaintiff had been dismissed in the said District Court of the United States of America for the district of Michigan, as in the declaration is alleged, and before the commencement of this action, to wit, on the ninth day of March, in the year of our Lord one thousand eight hundred and fifty- seven, the defendant prosecuted an appeal against the decision of the said District Court, to the Circuit Court of the state of Michigan, as by the law he was permitted to do ; and at the time of the commencement of this action the said appeal was still pending and undecided in the said Circuit Court. MVf«v>iv«te!ii; ctrciCj iiin,i a"j tilt; tituc Ui iUS commencement of this action the said suit of the defen- dant against the plaintiff was not, nor is it now, fully determined against the said defendant. .11 y ^■i Ill' BRROR AND APPEAL REPORTS 277 t^niJi^A suggest, and give the court hero to understand " and be informed, that after the said CharlesThompTon ana that they, the said George Penny Dickson and ;^n:n?£st:^ent^^'''' '- '- cxeJors of^lLst 1859.® thirtieth day of August, in the year of our Lord h J^ P/ainfiffs say that the plea of the defendant by him lastly pleaded is bad in substance. ^ The ground of demurrer is, that the fact of the * TtlTerl nfl '"'^ 5^'' ''' ^°2^^ ^^^^"S b«^" prosecuted ^HW ^1,-"'^'^ *^°'' ''^^ ^^^°' *h« plaintifi^' right of action m this cause. ^ LoJd ISSr** ^'^ "^ September, in the year of our fiff^h!v5f"''^°* 'J"^' *?!"* *^® P'^^ *« ^bich the plain. «»'<"»'""*• tiffs have demurred in this action is good in substance And hereupon, on the twentieth of September in thn year of our Lord 1859, come the partieratresa S, by their respective attorneys aforesaid, and it appears to the court here that the .aid plea is good in substance Therefore it is considered, &c. Lord y esl"*^"^^'^ ^'^ "^ ^'^'""'^y' ^° *^^ y^^r of o»r The plaintiffs say that there is error in the above We have found iio case decided, n^r on,r j:„.„-.--^ upon the question, whether, irhen a p"erson YnStedTr an offence, or arrested m a civil suit, has been acanittpd upon h.8 trial, he can sustain an action for the maSus ®* VOL. II. mm H s » 2T8 1868. Statement ERROR ASD APPEAL REPORTS. prosecution, or malicious arrest, relying upon such acquittal as "a legal determination" of the proceeding against bm, although an appeal fron^ the judgment in his favour is at the time pending undetermined in a higher tribunal. Upon principle, our opinion is, that till the appeal has been determined the party is not in a situation to bring his action for a malicious prosecution or arrest or, as happens to be the case here, for maliciously suing out an attachment against his property ; for in such a case the original cause cannot be said to be at an end, and that repugnancy and inconve- nience may occur, which has led to the establishment of the rule, that the original cause must be shewn to have been disposed of. It would be manifestly absurd and inconsistent if the plaintiffs should be allowed to proceed in this action and recover, on the grour.u ^Mt the steamboat in ques- tion had been maliciously t I ■,-.,; :i.md detained, without any reasonable or probable . vr., and it should be after- wards determined upon the ppeal, which was pending before and at the time this v: iion was brought (for that 18 what the plea states,) that the defendant had a good cause for seizing and detaining the vessel. It certainly seems to be entirely inconsistent with the language of the court in Fisher v. Bristow, (a) that this action should be suffered to be brought and pro- ceeded in while the appeal is pending. We refer also to Bac. Abr. "Action on the case," H., note; Bobina v.Hobins,^) cutty on Pleading, vol. ii,, p. 486, note y, Melhr y.BaddeUy, {c) Skinner v. Qunton, (d) Yeaton V. £he Ignited States, (e) Burton v. Place. (/)* The plaintiffs appealed therefrom, alleging as a (a) Doug. 215. (c) 2 Cr. & M, 675. (e) 5 Cranch, 281. I (b) 1 Salk. 15. d) 1 Saund. 228, a. f) 4 Wend. 581. «„r?„ see Scott V. Pilkington, 2 B. & S., where it was held in an action on a foreign judgment that pendency of an appeal in the foreijm court against such judgment is no bar to the action, although it may aflford ground for the equitable interposition of the Enirlish court m whicn ihe action is brought to prevent the possible abuse of its process, and on proper terms to stay execution.— S. C. 8 Jur N S ERROR AND APPBAt REPORTS. 279 1863. p^ound of appeal, that the second plea of the defon- lult to"l. t"'"'"' '"'^ *^'^ ^^'« *^^'""rrer thereto ""^•"" ought to have been suataiuod and allowed. '^'"'- On the appeal being called on for argument Mr^ Anderson, for the respondent, objected that the record was incomplete, there being an issue of fac ye ..disposed of That the judgment on the demure ^hmh was against tho plaintiffs, had been entered by them, and defendant knew nothing of the proceeding. app""*'^-'-'^"'^^'^-'-^— .^orthe ^ Defendants, under the pleadings, had a right to enter «'»»«—'• ment on the record on getting judgment on the demuf- rer to a plea that the action on tho foreign judgment was not at an end. This is not a writ of Lor, buTan appeal which is given by the adt (Con. Stat. U C ch. 13, sec. 9) from all Judgments. ' They referred to 1 Saunders n. 1, p. 80 • Be.i- Mr Andenon.-n^ provisions of tie Coosolidated Stotutos are traoseripis of the English Common Law ProoeduroAct. Two dasses of cases are ore ted by ftem-lst, error; 2nd, appeal. This mm be error^ rf not error, ,t ,» nothing; and before there can be a ; ^} W '> '^s'^ -^ SS. '/ A 1.0 I.I (4. HO 2.2 1^ 13.6 ' U 1.8 '1.25 iu 1.6 150mm y^PPLIED^ IIVMGE . Inc .^= 1653 East Main street .^s -- Rochester, NY 14609 USA J^S*^ Ptione: 716/482-0300 -^^.== Fax: 716/268-5989 © 1993, Anplled Image, Inc., All Rights Reserved "ci-^^^ '^:u 26a ERROR AND APPEAL REPORTS. 1863. Counsel also argued the question on the demurrer, "^^X^ but as the judgment of the court is given exclusively on Waia the preliminary objection, it is unnecessary to state the authorities cited. After taking time to look into the authorities Draper, C. J.— In this case the respondent has raised a preliminary objection to the appeal being heard, namely, that from the appeal book it appears that the respondent has pleaded not guilty, as well as the special plea on which the Court of Queen's Bench has given judgment for him, and that the issue in fact upon the plea of not guilty is not shewn to have been tried, nor any judgment to have been given on it, and so the record is incomplete and not in a state in which this court can give judgment upon it. JudgmoDt. It has been argued for the appellants that by the 9th section of the Consolidated Statutes respecting the Court of Error and Appeal, an appeal lies to this court from all "judgments" of the Court of Queen's Bench or Common Pleas, and that the judgment ren- dered against the appellants on their demurrer to the second plea having been entered, the right to appeal exists although the issue in fact is not disposed of, and that this court will assume if necessary that it is entered on the whole record. The respondent's counsel asserts (and asks for an opportunity to prove) that the judgment has been entered by the appellant without the respondent's know- ledge or consent, and that he had no notice of it until he was notified that this appeal was set down for hearing, and that the judgment is entered only on the demurrer. On enquiry, we find that no transcript has reached the clerk of this court, as required by the 4l8t section of the statute, though that section only authorises the BHROR AND APPEAL REPORTS. alleged fact (if true) that the appellants had entered the respondent which apparently would be irregular (see Hmony. Aeraman,) we should have given'an oppor! tumty for ascertaining and establishing the fac But he absence of the transcript is probabl by itself a sufficient ground for dismissing the appeal and Till objection be waived, we have oniy befor 's he pin ed appeal books, from which we cannot gather tha to ' terms directly shew for whom the judgment was given The suggestion and denial of error is a Lf for T , suhspniion* +^ *i, -J matter necessarily subsequent to the judgment, and it is only from these we 2 m er what the judgment was. The ca^se of ToZy. ifli r: I r "-'T'^ *'^* the judgment belowls ncomplete .0 long as judgment upon any issues in fact ad eer.i;en7''i"/^r'^' ^"^' -"^ncf/.n. ^^ ..^,.. Had been given for defendant on demurrer: and the court in that case, after hearing the principal questions argued, quashed the writ of error for fuf • ^"®', °"^ npsfl tL in*u . °^ that incomplete- ness The 10th section of our statute gives to this court a similar Dowpr a a *^ *u . appellants ma/^re'al tl^Xryl^C^nf "and w;;hturr ?. ^'-^^^^^^^ onp^ar^uirUd we think It sufficient to say that the statute provides for i^r'To:?"!"'^^' "^'^ '' broughtVe;:':^ court the one m the nature of appeal, and embraced of a wnt of error provided for by the 80th section which expressly enacts that ''no other app al from 1' or oh r in ^"°^^i' "«>««« the judgment decision or other matter appealed against appears of record '' Coupling this with the 10th section, wc think hit 1 legislature intend appeals contemplated br.he^^h m (a) 6 M. & 0. 636. 282 ERROR AND APPEAL REPORTS. 1863. section to bo on the same footing as cases formerly brought up on writ of error, and that the record must be complete before such appeal will lie. We have acted on this view of the statute and practice in former cases, and we therefore quash this appeal with costs. R ;l' ! .A n III Statement The Wisconsin Marine and Fire Insurance Com- pany Bank v. The Bank op British North America. Bill of Exchange — Bill of Lading — Duty of Agent, A bill of cxcbnnge was sent by a banking institution in the United States to a bank in Toronto for " collection and remittance," &c., accompanying which was a bill of lading for 10,000 bushels of wheat, which, on the bill of exchange being accepted by the drawees was delivered over to them, they being the consignees named in such bill of lading. Held, affirming the judgment of the court below, that it was not the duty of the bank here as the agent of such foreign bank in the absence of special instructions to retain the bill of lading until the bill of exchange was paid. This was an appeal from the judgment of the Court of Queen's Bench, as reported in the 21st volume of the reports of that court, at page 284, whore the facts out of which the action arose as also the pleadings in that action are fully set forth. From that judgment the plaintiffs appealed, alleging that the judgment was not according to law, and that on the facts as they appear in judgment the rule niii for a new trial thereby refused should have been made absolute. Mr. Hector Cameron for the_^appellants. Mr. EcclcB, Q. C, and Mr. Gait, Q. C, for the res- pondents. ith In addition to the cases cited in the court below, Wood V. Theidman, (a) Camming v. Shand, {b) Smith v. Virtue, (a) Brown v. Hare, (d) Wright v. London Dock Compant/, [e] Hoare v. Dresser, (/) Schust.r v. (a) 10 W. E. 85G. (c) 9 W. R. 140. (e) 5 Jur. N. S. 1411. (t) S H. & N. 95. (rf) 4 H. & N. 822. (/) 6 Jur. N. S. 371. ff ERROR ,'.ND APPEAL REPORTS. 288 fJi-^Uer, (a) Wingate v. Th. Mechanics^ Bank, (h) 1863 to L -^ on Agency, sees. 52, 82, 84, were referred b.„.\n. to and commented on by counsel. ^m^ After looking into the authorities VANKOUonNET, C.^Three material allegations are Tiliff^Vr °/""J'^^' ''''''^'''^- !«' That the tl h- 1 n r'^ ''f''''^' '' '^''' °f *'^« ) 10 Barr, 104. (d) 2 T. R. 187. (/) 11 A. & G. 888. 1S84 WROR AND APPEAL REPORTS. i>i 1863. custody. Tho wheat in question was out of tho posses- "^1^;^^ sion of the shippers ; for Clarkson, Hunter ,f Co. were fta,B»nk only their agents here to receive it, according to tho "Am5i«; terms of tho bill of lading, and it is proved that they obtained the delivery of it without producing or using the bill of lading, and without reference to it. Tho defendants received no instructions how 'to deal with the bill of lading, and it was not unreasonable for them to think that it Avas to bo handed to the party who accepted the bill of exchange. They had no information about the wheat, and were not told to take any action in regard to it. As it left Milwaukee, so it reached and remained in Toronto in the possession of the shippers and their agents. It might be more prudent for a bank to apply for and receive precise instructions how to deal with such an evidence of title to property, as a bill of lading when it is transmitted to them without any instructions at all. JMsment. As banks here may themselves become the assignees and hi Iders of bills of lading, and thus become entitled to the property covered by them, so also I suppose they may become agents to deal with them for others who transmit such instruments to be held in security for payment of an accompanying bill of exchange, and these may be transmitted under such circumstances as will render it necessary for a bank receiving them to act with great caution in dealing with them, that they may avoid any liability. The other members of tho court concurred. Per CMmm.— Appeal dismissed with costs. EBROa AN1> Al'l'KAL llJiroilTS. [Before the Hon. Arch. McLean Ft n r o j Hon w ir n ,"^'^^'^"^'> J resident the the Hon. W B. ItichanU, Chief JuHkc of the Con- On an An-EAL from t„e Coukt ok (^uk^Vs Uknc.. The Great Western Railway ^o^fPivv a of $942,672 03, was ndvnTcc , t ^'lin ''"''T^ ^''"'^ *''« «""' Great Western Railw/iv f'n.„^„ ^ V ^""'^ °° ^''^ credit of tlic the Great Western Ra Iw, v^ComLnv '"'/, •'"'''''"'•■'* ■■e-'^peotive /of ment of the Detroit aSiwuX^e luZ ^^ completion and er,u%- oontrol of the directors of rOroat wl n^' d ''•',''' *="'"° »»J" t^e At a general meeting of the Dronriltnlc. 7 . "n^'*'''''''^ Company. Company held in Lndon o^tre 1st oi r, ''. ^''^^M^'^^*''''" ^^^ay on the 2nd of November foL- ^. "•''"■• ^^"' »°'' »" Canada £160.000 sterling°rol; D " "f.'n.rvr ''T^'f '" "'^^-'° expenditure being under tI>o «.i. i ^ , '^''''^'*"'y motwff its traffic with railZlZftr Tfl' """""'°"' <^nd in pro- expenditure, it was provS shouM -^^''"' ''•^^"'^^'^«;" such vote of the shareholders at a'genem mee't! '°"'''^, ^ " ^^o-tXnH^ It was further enaci:»fl <• iLf.L, '"^•'''"ff ; ind by that section the said Co^pa^t: t IMrltaiTml ^?''T '''-"''J -^' " hereby declared to be /a^/rj" it f,f'i"'f ''^/^"'''^''^ (^'ompam, is and Reynolds stipulated wUh tt y^T'"'^ '»* Messrs. JJryLl ^ade by it from tLe to tim on the a"cco„n°t ^'''^'''■' "'' ''^^^»«« b«Il8 of exchange on the Great Westprn 7 • '" 1"««"°n. ^Y sterling or from the traffic receiprof t e So " 7^^^?'"P''"y• ^°"J°". under their control and orl.ii ! ' '^"'^ Mihvaukte Uailwav JE88,620 16s. 7d of steilinl 1 . "PP'""'«'l in the particularsTr fawn under thj In^-Z ""mZI^T' '' »^°"t «4lTooo %-.|.^ha. no authority tS'^heX^'; l^rd\hl7^^^ VOL. II. 285 Digest. •I 286 1804. Ot. Wentero Kail way Co. T. ComniiTcial fiimk. ERROR AND APPEAL REPORTS. no corporate soul to make defendants liable. Leave was reserved o move the court in banc (hereon, and after evidence for the defence 'tL wL^n :;;i:r=etd"ni^,=^^;';:^-;; hk Seeii:eoy^t^:rC;;ii^"^ ''-^- ^^^^^ -^^^ "fer7'iullil':rr ■ """''". """^ ^''•"'.'^'^' ""''""•'^y '■'•'"" ">e Great l)cS«n i^ L r^'n^ *" ""'''° '^'"'"'='"' ""angements for the int oit and Milwaukee Company on account of the Great Western ta.lwny ( ...npany to the extent of £250,000 sterling agreed o be cZlllf'^xT ''T"' ^""""'*"y '" ^'"' Detroit ^aml'M^aukl' nn. L. T . ^T' 7" *''.° "*''=°""' °f 'l-e Commercial Bank opened r/r, ,, nf; ''•^;"'"'" "' r«'''*"""cc of such authority ? ^ ^ 7///r,%_nad the Commercial Bank notice at any time while thn excSdTi';:>"';f '^'' """. ''^^^'•^- ^^^'^^^ .-a ^i^'ow^ S to"x":i\:iit i;::; tr;,;!.;:;::, r^-' ''■- '"« *- 'o-^. amounting ^'0rI^u'weZi'n'.V''r'''?!"''' "''"' was given by the bank to the !v .M M,o,.I l''""^ Compnny on the opening of the account. ^vas here any un,ler.stood limitation between tile parties as to the qucHfon of liability at the time the letter of the IGtSof December S.i^ m""""'""' o-- ""s the ;i.count continued on after hat period in he «,„nfi manner as before by the parties ? with the Detroit and Milwaukee Company, reap the benefit of the ElkeTaJi^^f^^ ''' '-''--^ "-•^ '- ''^ ^<^'^ ^'^Tni^Ji'fl '?;' "'•" ""'hority; and the account was opened and conducted by them in pursuance of that authority. ^ ttded tS aSo"i?y"°''<'^ '""' '''««"«• ^^^''^" -^ ^«^-'^» ^TitrJ''""" '"'' "° •'"''Nation, and the account was continued in was g" ven"""""" " ' '^' ''"''' °^ ^''^ ^^''^ »«''«'»l'«'-. ^^^s" /"irtA— They did. A verdict was accordingly entered for the bank, the amount to be ascertained by a referee to be agreed on between the parties who by an endorsement on the record was to have power to report upon he different classes of the account, and to submit a statement for wlZrc"" °^ *^' '"T-^ ^ '"'« ""•' ^"« "Stained by the Great Western Company ,n the Court of Queen's Bench to enter a nonsuit and also o set aside the verdict for misdirection and for non-direc- tion ; and for he reception of improper evidence as specially set forth .n the rule. The Court of Queen's Bench discharged tTat rule Tr,\ZlTT^P^ "" "PP""' ^"^^ '''°"Kbt from that decision. Held, on appeol, that .he nonsuit was properly refused; and that the bank was en itled to recover to the extent of so much of the two b^n^Wn'f•°'^"";' £100000 stemng respectively, as had no' that th^ cJuV i^J^"*""^^"!.'. C., dubitante, as to latter loan;) that the Court of Queen's Bench should have so declared the liability of the Great Western Company to the bank, and that not having done this there should be a new trial, unless ihe parties set- tled upon this footing or ascertained the amount by a reference: {McLean, President, dissenting:) the court being reminded that the parties at he trial had agreed to a reference of the amount, on consultation ultimately ruled that if a new trial was desired by the bank It should be without costs ; if by the company then with costs : ERROR AND APPBAl REPORTS. 287 opinion of the court. f ,t T ^ , ""' '" ''^•^••"•'•""co with tho Jj^L than anew tri.il wi.s on .,n i „f/> '•^ ""' '"' "' 'M'HI foUowiMjr ^ the Great ^ll^rcIpL^l"''' "^"'- "' "" "'"'' ^^ ♦"^' "1'P^"1-h; Hil.rir;'^- th/hank'a"ki^"'"f„ra c^ ft ' sSmS' '''.T^'""/ '""' '^'•^"'"' "'' """'■ which, on the 1st of An ri 1858 i^!'?' '"! 'i''"''' "• '^ ''*'■ "ccount. by tho directors »f the^^nkata^?,o,^'1 '.''''''■" "'"I ^^''-si'lm., •lay. an,l „n tho samdi,!, v he • caSl^ " "'" ''"V"' '"■''' '"' "'^'t thecourtbelow.) that tile ninutosnf^l'i 1 *■''''' ■'"''"'"i''''"'" Bible as ovi.lonco, as pan of 1 oL. ! °'"'l' '""■" f"'"l"'^'>' "''"'i^- the agent of the 'bank Ha iton Ct,. \''T> "'f •""i^'"'" *'"" statement shewing how tl e ncc-om. « i «• *'"' .'"''"' ""■"•<• '' Western Company was kept J/mLu «• ""•"'' r'"' ""' "'•«'*' the court below,) that such statomo, •'""•':'"1*? the Ju.I^-.uont of the cause. ^ statement was admissible as cvidcnoo i„ Ou!!ilT '".'^^''' ^''"^ a ju,lgment of tho Court of Queen s Bench, as reported in the 22 volunve of the reports of that court at page 233, where the facts of e case are clearly stated. From the judgment there reported the Great Western ® statement. -Firsi. — The rw^e nisi for a nonsuit °f '288 186-1.. KnnOR AND APPEAL REPORTB. il ' Isif Uf i III 1 't^^^B 1 |Hi ^I^^^^kI m ^^^^^^^^^^^HHf^ ' Wtiii.1*^ ^^^^^^^^^W'^ij ^POI^fjt ^H^^^^^^^l ^Bf ^ ■^^KhB^ ^p^s^t ^^ recover the samo to the prejudice of the stockholdera of nr;Cr„*^°''PP'"^"'" company. llNilwuy t'o. Commercial '^r*!— Tho act 22 Victoria, chapter 110, having onlv "auk. cmpoweicl the appellants to lend their funds in provi.l- in^ proper connections an.l in promoting their traffic with ra. w.ys ,n the United Statei, when sanctioned by a vote of two-thirds of the shareholders voting in person or by proxy at a general meeting of the stockholders spccia ly called for the purpose, and the moneys ad- vanced by the respondents and sought to bo recovered in the said action being in excess of any loan or loans authorised by the shareholders to the extent of a million ot dollars, and not having been applied in providing proper connections or in promoting the traffic of the appcilimts with other railways in the United States, but in paying the debts of the Detroit and iMilwaukee Rail- way Company due upon their bonds, coupons, notes and acceptances in many instances held by the respondents a cilau?' ^"""''' ** '''"'''' of action against the sffment ter'**!'';;;;^?." ^I^^l''"*^^''"° authorised by their char- ter, a public act of parliament, to borrow moneys only by bond or debenture under their corporate seal, and the money sought to be recovered not being so borrowed there was no legal evidence of the borrowing for the consideration of the jury. 5th.— The transactions out of which the respondents' alleged causes of action arose being out of the usual scope and powers of the appellants, could not be binding on the appellants Avithout being sanctioned under their corporate seal, and the evidence shewed they were not so sanctioned. "^ 6th.— The said judgment erroneously determines that a power to lend gires power to borrow. 7th.— The evidence established that the payments and advances made by the respondents, forming their cause of action in the said action, were made upon cheques drawn by Charles J. Brydges and Thomas Meynolds m their individual characters, without any official designation whatever from the commencement of the account in December, 1857, till the month of Janu- ERROIl AND APPEAL REPORTS. 289 Conm V ■ t"^ ""' "«""i'""'' Milwaukee Slwav "•"",■""■ advance „1 ,1,0 fl,,. ,„,„ „f SWMO, on ,1 30 hDo^ct bil 8 of oxchango drawn by the said Hn/A/e, and 7V» Zrr "«'';";•»"'' "'•■^'"•'J i" thosaVo account 0*,^ the fir.l Jay of February, 1838, and which bills Ire fZ„"c r "t1,«X", ,?rT° '' ™'"""« "■-»"'" uuviiiiLts. mat tlio said advances were charwrl f« «„ account into whicli tl.o traffic earnings and ot^ef It " of the Detroit and Milwaukee Railway ColanTSe earned, and a.a.nst which the Detroit^.nd M Kkee ^t-^-' Railway Company had a right to draw, and for monevs itairi;^ ,T°" '^'\fr^^^' the appelknts cou d not 1 legally held responsible as primary or principal debtors! 8th.~.Tho particulars of the claim of the respondents put in evidence, shew that all advances ma" : .the respondents previous to those made on the De.rcit and Milwaukee Railway Company's cheques and notes were 9th._The letter of the IGth December, 1858, written by Messrs fir^rf^.. and Jteynolds to wdiammTark the respondents manager at Hamilton, and put in evt dence at die trial by the respondents in term recol- nised the Detroit and Milwaukee R.ii;ay Companyfg principal debtors, and the cheques and other doSen^ tary evidence showing that the said company was treated by the respondents as a.debtor, and the moneys advanced having been applied to the uses of that company, it wis r. t competent to the respondents to shew by parol tes- dS "' Tm'^ *^1 appellants, a corporation, that the priiSpaltbtorf "'" ^''"^'^ ''^^^^^ ^^ -' Vt i I I i- S90 ERnOR AND APPEAL REPORTS. -'tfi V \i '8«1- 10th.— Assumin.? that tho .lirectors of the anpcllnntg' ^^;-;v-^^ company coul.l ovonlrajv the ....npany's h.nk account juiiw,,, Co nnil make tlio company Iiahio Im- th(> ovonlraii"'it, they cnmJ.rri«i ^ouhl not .K) SO hy cheques (h-awii in their individual ""..k. names, or by checjues in whicli they duscribo themselves as ofliccra of another incorporated company, or by ativ otiicr means than the reco-t.ised method of tlio companV in drawin;? upon their bankers, and without shcwinc upon the face of their che(|ues that they assumed to bind tlio appelhints and wero drawin;^ „po„ their bank account —nor couhl any number less than a majority of the (lircctora bind tho company by any unusual description of cheque or method of drawinj?— an.l the evidence showing that Messrs. lin/.f^jcs and /icj/nolds wero not authorised by tho appolhmts to draw chtques either in their own name or in the name of the Detroit and Mil- waukee Railway Company upon the bank account of tho appcHants, elaxiues so drawn and moneys advanced thereon cou d not bo legally charged by tho respondents to the appellants. 11th.— Messrs. liri/ijr/es and Jlei/nohh could not 8t.tea.ent l^S^''3^,«";<)r into a Contract or engagement with the «» "'■ respondents to open an account for the transaction of the business of another company, nor to obtain credit for another company nor for tho appellants' company, beyond that already in existence and recognised by the respondents and appellants. 12th.— The overdrawing credit agreed upon by and between the respective Boards of Directors of the appel- r" k' «">nn S""^'?^','.''?.' ^^t^^^'shed by the evidence to be $200,000, and this limit could not bo exceeded or varied so as to bind the appellants, except under the same authority that contracted and agreed for the credit —and no authority for a change in the credit was shown on tho trial, but on the contrary, that no such authority was given, was established. 13th.— The evidence shows that in so far as the agreement for opening the account in question was made with intent to bind the appellants, the same was planned for the purpose of enabling the agents of the appellants to keep It off the books of the appellants, and the respon- dents did, in pursuance of such agreement, describe the account m the pass book and in their correspondence as U91 1801. EHROIt AKD APPEAL IlEPORTS. v^-ith tl.o appollunts. TJ.c Lp ^I ^'^^^f^^^^^ °"«Co.™^„... not to be allowed to nnf fi. . ^i'""""f« tlicretoro ought B.Dk. iui utLuung mat tiie borrowing nowerq nF t),^ ,^ ii a railway corporation, are anaPoroTfo „n "f'''^'""">''' with, those of joint-s ock L^? ' ■ ^"-^•'''^"sivo in fact a.Ml in I^w thes'tl i n^ l'^ compan.es-whcroas, powers, except t o ^e ; e^^ ^ '"'t fi,f ' r '", ""-'''^'^'^ incorporation, and the ?eve Jl f* ? "''"I" '''' «^ authority under the act '>^ vjor • i '^"^ P'^^^^^'' o^ 12, to n^.ke or au 1 or se Mcw"^^^ V!;>' '''''''' to make the arrnnk. appellants as a company were aware of the advances being made, and had by laches, in not interferinir to prevent the same, precluded themselves from obiectine thereto, or in assuming that the knowledge of Messrs BrT/dges and Mei/noMs the chief officers of the company receiving the benefit of the advances being directors of tbe appellants was notice to the appellants. Also—In determining thatadvances by the respondents to assist the Detroit and Milwaukee Railway Company !T°f.TV''\^^**'°'^'"^ ^^^^' legislature and the Jul f *^7^,f ^bo'^e'-s >^'as not for a purpose that was Illegal, and that advances so made were recoverable against the appellants. nB«'*/r~'5' ^If ^7""'4"^ *^^* P^^'"'* *° ^^« appellants to use their funds for the purposes of a foreign company gave them authority to borrow moneys, to be so used ised mode of borrowing, that in fact power to lend gives power to borrow in order to lend. ^ ^/«o-In assuming that the fact that several directors MiW ?PP'"^".^ ''""'^ '^Is" ^lii-ectors of the Detroit and Mi waukee Railway Compay made the latter company less a distinct and independent corporation than it n-ould have been if the direction were entirely different and ff!;.' wf '1 '^^"^ '"' ^^^ '' ^1- re^spond nt 'we e affected thereby necessitating the acts of ?he appellants -and the appellants responsible therefor, although the said officers in so acting assumed to be acting for the said Detroit and Milwaukee Company. ^?«o-In determining that whether the Detroit and Milwaukee Railway Company were liable to the respon- dents or not, for the moneys advanced and applied for the purposes of that company, the appellants were liable ' -thus in effect determining under the evidence that two distinct corporations, not jointly contracting, could be lable at one and tue same time as principal debtors for the same debt. * r Also— In determining in effect that a parol undertak- ERROR AND APPEAL HEPORTS. ggg ing of Messrs. Brydaa nn,? r>. i- change on England'^t? over anv fT^'' '' "^'f'^' «^- ^^64. respondents to thp Ti.f -f ^,^, '"^^^^^ ^^^^ by the ^— ^-w Company, or to the niir'/"^^ Milwaukee Railwayg*^^ that an undertak n| of fi s ^''SP'"""*?^^"^ ^'«o> ^^""^'^"' as officers of the appellants to ^vt'' '"^ ^'Vnoldl earnings of a foreign rail w.' J ^^ *° respondents the ing upon the appeKts X^. '°P'"^.-^°"'^ '^^ bind- would rest uponThe apSn^^o "^'^'^''S^t^o" in law said under takinfr. fi,?J^ u . *° P<^r'^°"n either of tho power of ^S:bIII:T}T3 ""'^^f '^^ «-Po and agepts of the appeSfe;^^:^"^^'^ " '^"^^°^« - thaf rh7?ppt^itVdlu"tr;' Y,*'^"i^ j""^g-"t they would havrbeenliahl'^?"^^^ "'' P"*' *^''* Messrs. ^r^c?*;.; and 7P.1.L 'f '^',"S° ^'"'^^n by company in Entland ^n^rit ? *^/ ?^^^*°^« ^f the Detroit Ind Mllukee RaZv P °^ '^' ^°^" *« '^<^ sueh admsssion hafb en tjdJ ^7*12"'/'"^"^"^ requires it to be admitted r^ZrV . } , '^^^ "<^ither lants would have beei t'lSe Stu'lt ' ^'Z-'^PP^'" they would not have been so li !h'l. \ -^^ ^"^^ '"^ f'^cfc conclusion imposing a ]iabHtvr"t;;" '° ^^f '^^ ^"^ '''*""'°*' drawn from the saUJ suppo 7admis onT"'"*' '■' erroneous, and not supported by any premies ""'"' '' ca.e,as_ specifically pointed out in tl* rulelfc' rn support of the judgment of the court below th^^ respondents stated and sel forth the follow n!' to the grounds and reasons of appeal ^ '°'^'" Answer to first reason assigned: There was abundant evidence deduced -f fi, . • , this case to sustain the actfon of tt ' *^"^ °^ against the appellants, and his wa L'^'Pr^''^^^ mitted for the^'determi^ation of th^jur J. '^''"^^ ^"^■ Answers to second reason assigned: l.-The^objection taken on the second reason of the VOL. II. m 294 1864. Ot. Western Hallway Co. V. Commercial Bank. 1 1, a ''I Statement. ERROR AND APPEAL REPORTS. appellants is not open to them on the present appeal, inasmuch as such objection was not taken m the rule nisi of the appellants obtained by them m the Court of Queen's Bench, and the appel- lants are confined in their appeal strictly to the terms of their said rule nisi. 2.— If such an objection be open to the appellants, the respondents contend that the moneys advanced by them to the appellants for the purposes alleged, were and are in point of law recoverable from the appellants upon the following grounds (amongst others :) ^ o (a) The application of such moneys by the appellants was not ultra vires of the appellants' charter and illegal. (i) The respondents had no notice of such alleged improper and illegal application of the said moneys, (c) The respondents were entitled to presume that the application of the said moneys by the appellants was for a proper purpose. (d) The appellants having received and used the moneys of the respondents, cannot be allowed to raise an objection of this nature. (e) The principle of in pari delicto is not applicable. (/) The appellants, although a corporation, have power and capacity to do wrong, like a natural person, and they may in their contracts and dealings exceed the limits of their charter, and when they do so they cannot claim exemption from liability on the mere ground that they have thus so acted. (g) Further, the appellants as a corporation may have no right to violate their charter, but they have capacity to do so, and to be bound by their acts, when a repudiation of such acts would result in manifest injustice to third parties like the respond- ents. (h) Further, a corporatiDn is more than agent of the ghareholders, it is clothed with the legal title to the (l) t ERROR AND APPEAL REPORTS. 295 deal with i„ f„„»»'- n tact ontor „p„„ tho „„authori"ea « bt ,1?, they ought not to have cntercj ,m™ T-' i 5-' pita's'"'™" "'^ '"""'' «'-'»' - - a" ' * and Sro?' tl'r '',r° !r'"^'' ""= """'Mention C'tir ° "r °f "■' ™»-"So*ra™d : ^ong as the appellants retain this it Jq n r„u e comn^onhonesty'that they should r!pa^JtLmotev1 advanced to secure this benefit; ^ ^ ^^^ t^TS'^' ? ' °^Jr^'°" °^ ^^^'•^ ^"'^^ ^vith respect to the dealings of corporations like the appellants only applies to such as are clearly in excess of thei; 1- tie"'shSold '"' '' ^"^ '''^ o^Trocled g th//„/ 7 °^'^'''' ''*" "^'^e such rightf^, then the defendants are entitled to assume tha s nh vote or proceeding ^as duly had before he deal mga m question were entered upon. (w) Further, the statutes relatino- m ihn -v. ^^ . Vic ^oh nr'? '^ -'» 10 YiX cir. 9i S's Vie, ch. 116 give the appellants power and tJ.Pv are permitted to borrow and expend money ,n col statement. If He! i 1661 Gt Western KailwBy Co. Commercial Bank. (V, JBtetement. ERROR AND APPEAL REPORTS. nection .vith railways in the United States of America and the mere circumstance that the raoneva advanced by the respondents to the appellanrwere expended by them for the purposes TheDelroit and 3IzhvauJcee Railway Company Twhich if 2 extent only to which this objectC the appdknt goes, and to which they mist be conCd H not StaZt^fe V-' ''Tr ^'^•"■'^ '^' authority of the by the appellants that a resolution of the sharehol ders was any condition precedent to the exerdse of the competency or capacity of the person So mav enter upon it : any principle of kw nppHcable ^o Answers to tliird reason assigned : 1.— The third ground on which the appellants rplv f.. a nonsuit was not taken by theirT, 1 w.f- ^ /u Court of Queen's Bench, an^dteVetni^trr y' 2— If such an objection be open, to the appellants th^ respondents shew that it was unneceSv for thll recovery ,n the action in question to estu.mh thai • te^S^n t^^i;.>- ?.- - the ap^" authorised by the -shareholderfo^f re%L itt"' corporation; or that such moneys were S'd in ERROR AND APPEAL REI^ORTS. m SSE;^=S,!: kss •"■ Ot Werteni Kailvray Co. V. 5. 3— The respondents also refer, in connection witli fj,- comnTercii s=it.ri-s;.:;.wS= - of the jury. ' ^ '°° 'J«terainalion nor whether the same were e^eeded bv 7^"*'°" ' authored such 5„am " "^ "'°'"'""^ «'«'<''■ ^'"K!'' ' """ '^ '°°!' " "MMeration ;,», material Srtr'' for purpose, .M!,.iZTL^,^; Statement. 4 Answers to fourth reason assigned : .0 Buch''f„„r:r:,5i„:„fr;;r„t'' °""" 2.-If, however, such objection of the aDDellnT,f« „ TJ' 'T:-"^^'^' '^' respondents S^wThat r <^^ZtTjf% the ap/eliants, andTontring mem powers tor borrowing moneys by bond or , i i; i! 1864. ERROR AND APPEAL REPORTS. debentures under their corporate seal, do not pre- clude the appellants from borrowing otherw s? or m any other manner. ^ i-' wise or statement. Ot. Western Railntay Co. T. Commercial Ban.. 3.-Further, that this objection of the appellants cannot prevail when they have actually received, used and derived the benefit of the moneys lent to them by the^respondents, and now sought to be recovered Answers to the fifth reason assigned: ^■~ hwi^^*^ 'T°" °' S'ound of nonsuit was not taken by the appellants in their rule nisi in the Court of h.^lZ aT^'' •""'^ ^^'? appellants cannot therefore be allowed to raise such objection on this appeal. ^'~^vl.l"h';»f" ""^"^''"'r ^^ ^'^^ °P^" *° *h« appellants, h wU^ '•e^Pondents deny, then the respondents shew that uudcr the circumstances of the present case there IS no ground for the distinction attempted to be herein drawn by the appellants as to matters andl! 7'"'^ '°°P.' ^"^ P°^^^ «f tJ'« appellants, and therefore requiring to be evidenced by the cor- porate seal; and that even if the'e is any such distmctjon m point of law, which these respondents deny, the principle thereof is not applicable where the consideration has been executed by the respon- dents and the benefit received by the appellants Answers to sixth reason assigned: ^'~'^i^ appellants were authorised to borrow moneys^ firstly, as incidental to the objects of their incor- poration and the trading nature of their business ; and this IS fully apparent from the matters in eyidence at the trial of this action. Secondly, the statutes relating to the said company, and espec ally the act 16 Vic, ch. 99, confer expressl/or by to borrow"" '°" "^°'' the appellants the power 2.-Further, the respondents rely on their answers given to preceding reasons, so far as applicable, as a further answer to this ground of nonsuit. Answers to seventh reason assigned : 1.— The seventh ground of nonsuit was not taken by ERROR AND APPEAL REPORTS 299 V. _ Commercial ^.-If such ground is now open to the appellants thn ''""'' respondents shew that the question, who we o' the primary or principal debtors to the rrs^ondenK n respect of the moneys sought to be Covered n this action, was purely a question for theiury o determine ; and that the circumstances alleicd n this seventh reason of the appellantsfif udi d 3 exist, which the respondents deny, Ure mere v Items or pieces of evidence to be submitted t the jury, and were and are not conclusive between he o^nitt':'""'^" in any manner form abound Answers to eighth reason assigned: l.-^his eighth ground of no.isuit was not taken bv the appellants in their rule nisi in the Court of r^a^r/theTaV"' ^^"^ -w precluded fom Z 1 r •' '"'^ *'^" respondents rely upon statement. signed ' ' ""'^'"" *' *^'« ''^^^^ as- 2— If such point is now open to the appellants the respondents show that the alleged Smsances therein stated, even if true, whi^h the 'Spotdent deny, afford no ground for nonsuit. That such whereas on the contray, there was no 'v dence tj shew that the character of the utterances of the respondents, and set forth in the particulars of their demand, was ever changed from the firs openinir of the account to the conclusion of it. '*P«"''^S Answers to the ninth reason assigned: l—This ninth ground of nonsui. vas not taken by the 800 1864. at Weatorn Railway Vo. T. Commercial Bank. ERROR AND APPEAL REPORTS. appellants in their rule ntai in the Court of Queen's Bench, and they are therefore precluded from now raising the same, and the respondents reiron tMs objection as an answer thereto. 2— If such objection be open to the appellants, the suit. Ihat such letter was not conclusive evidence to shew that the Detroit and Milwaukee Sway Company, and not the appellants, were the prin- cipal debtors to the respondents ; but on the^con- trary, the said letter in its terras, and the true construction to be placed thereon, .Vas a confirm- ation in writing of the direct liability of the appellants to the respondents; and in any view thereof such letter was and is only one of a number of pieces or Items of evidence to be submitted to tbe jury in Its determination of the question, who were the principal debtors. • »"«", wno Answers to tenth reason assigned: ^ 1— This tenth ground of nonsuit is not taken by the flutament. appellants in their rule nisi in the Court of Queen's toiler '^ '■ "u* «0"Petent for the appellants 1 rn^the bPn^fi;" J^'^'PP.'.'^' .^"^ '^' respondents Claim the benefit of this objection thereto. ^'""■11.".°^ reason be now open to the appellants, then the respondents show that the matters therein aleged,eveniftrue, which the respondents deny? cannot form any reasons or grounds of nonsuit that such matters at the utmost are merely circum: stances from which the court or jury might infer a want of authority on the part of^ ^esTrlBrXes and i2,^n.?rf« but any inference of such a nature could be, and was in fact counterbalanced by express evidence of authority to bind the appellante rln' ''!?"' *" '^' transactions in question ; moreover, the respondents were not bound to have regard to the form but to the real character of the transaction ; ^nd it was to suit the convenience of the appellants that the form of cheque referred to was used m their behalf. «i«ireu lo Answers to eleventh reason assigned: 1—This eleventh reason for a nonsuit is not open td u. EHUOE iSD APPEAI, aEPOBTS. 301 ovidonco to bo Bubmitter ' ''"''"""■'' "» ^"ffioionl spondonts havo already fully atwrnd"^ ""^ '"^ T. Commeroia Bonk. ^^*^^''''« to twelfth reason assigned: statement. no i o;,^d f „'o±? 'If r«P°nJo„ts deny, f„™° a£H.y.:^dp::;!;„'L■lSd^2^tf and the respondents rely upon their ansyfclTti^l preceding reasons as als'o aWlicaSe herS, ^' ^ws^t'er* ", .he set forth irth™a?drS.'-''P'''''',''' *" S"'"™''' ground i3 now opon ?o ttV2l rl""" ,"" <"'"=' such of the said CToundsT; f"^["!^"'"' """ ""'y mWcan bo relicd*n™n i"r ,mci „f"Jr r''' 'i-i^ feason^of appeal a'« ^ow'S.ll I^'tj^t '•~I^'ntr;i^ f; .';:-''' f *« oy-'ion. ^c forth by then,! as m fas JhoTe .'""'"'"''•"re set liU 1 dot ERROR AND Ai>rEAL REPOttTi. imi at. WeuUn R»Hw»y Co. T. ComnifKUl Uaok. m^i, aa a sufficient .ui^'wcr to any reason of appeal assigned by the appclhuits, or ••.>lic.l on by them tiV Wn of thoaforcauid soc^ l branch of the saia fi) 10 mat. 8.-Without waiver of any of the aforesaid objections, the respondents rely upon their answers hereinbe- toro contained aa a sullicient answer to so much of the said matters of appeal as relate to the said verdict being contrary to law ; and tho respondents further insist that such verdict was and is not con- trary to tho evidence given at the trial, for bv reference to such ovi.lcnco it will fully appear that ho respondents ought to '-ave recovered, as in fact they did, ipon tho said evidence. 9.— (a) The respondents insist that the ground of appeal, based on the alleged decision of the Court ot Queen s Bench, as to tho borrowing powers of the appellants, ,3 not open to the appellaita under the second branch of their said vnlo nisi, and they claim the benefit of this objection. ^ Sfto^cnt. (i) The respondents further show, if such objection • Uv^'ffi ? ^^' appellants, that tho respondents have sufficiently answered tho same in their answer to the sixth reason of appeal under tho first branch of tho said rule nisi of the appellants, and the res- pondents crave the benefit of such answers th same as It they were hero again set forth. 10.— (0 Tho respondents insist that the appellants can- not under the second branch of their sLl rule mk' raise any question as to the power and authority of • Inn.^°^ '''' ''°*'°" °^ i^° ^'^''^ ^i directors^ of appellants company, and they claim the benefit of tnis objection. («) Tho respondents further aver and shew that the said i- . .nent'oned matters referred to as a ground iLtf'^^r "'''' ^*°t r^is^d or taken by the appel- {c) The re4.-,nde..,3 further shew that tho maH«ro assigned la the above reason of appeal were soTely mthm the province of the jury to determine upon^ BBnon AND ArpEAi, nEPORTS. fljt ;;« .1.0 :; i&tk'::U :s rr -i'-r^^r. Buk. ''" wJr 3:;™';''i" '■:,''''"r ,"'- "-i -i.o. ..,». ti,oro ^bjis. •""■' "°" "-^ ='™ .1.0 cjfi'';:?"^' appeal wo™ not rais™ oTtlS b", ."e'aS?" f at tlio trial of this cause nn.l tl, ^ !i "fP' """ »"™.i cannot thorcforo now rdMlerco* ' "'" ""P""""" ('0 Tho respondents further aver as the faot la *1 . tneir aforesaid claim was lor a hl}l i ^' *''''* overdrawn bank acclnt and tha J ° °" •"" appear! "™ '" ""' ^'^ "''' "'» """■•o M?; '^'"T.'f'i ^f' ^P""''""" '"Bisl that the ErounJ of in .f l?l '■•J< 1863. ERROR AND APPEAL REPORTS. '^i ^ ^ I. fu y*"/'' °^ '"'^^ o^dection, the respondents ot, weptorn ^'"^'^ /^^^ ^^^ ^^^^rs Set forth in this reason of Haiiway Co. ^^PPf^^ere Hot raised or taken by the appellants Commercial »« the trial of this cause, and that the appellants ««-k- are therefore now precluded from relying thereon. {c) The respondents further shew that the aforesaid matters were only proper for the consideration of tne jury, and that m) objection was taken to the verdict in this cause in the Court of Queen's Bench m respect of any of the aforesaid matters. (d) The respondents further aver that the appellants had full notice and knowledge of the advances of the respondents sought to be recovered in the said action; and that the evidence given at the trial of this cause shows this sufiiciently as by reference to such evidence will more fully appear. 13.— (a) The respondents insist that the ground of appeal relating to the advances of the respondents beyond an alleged amount voted by the sharehold- ers, is not open to the appellants under their said rule nm, and the respondents claim the benefit of this objection. (b) Without waiver of such objection, the respondents shew that the matters set forth in this reason of appeal were not raised or taken at the trial of this cause, nor m the Court of Queen's Bench, and that the appellants are therefore now precluded from relying thereon. 14.— (a) The respondents insist that the ground of appeal relating to the power of appellants to use their funds for the purposes of a foreign company, IS not open to the appellants under their said rule mat, and they claim the benefit of this objection. (b) Without waiver of such objection, the respondents rely, by way of answer, to the aforesaid reason of appellants, on the previous answers of respondents to similar reasons of the said appellants, and they claim the same benefit from such answers .og Jf the matters thereof were now again set forth. statement. ERROR AND APPEAL REPORTS. 307 peai relating to the circumstance that pprfnm ^f y . he directors of the appellants' company we Hlso^^'^n directors of the Detroit and Mihvauke^e Railwa^"'"'v" '"• objection. ^ '^^''" ^^'^ ^'"^fit of this • nlT ''{^r'''' ^ench, did not assume the sa?d PoTA ,^m'" ' ^^"'^^' ^^^^* the two corponiions could be liable as principal debtors, is nof open ?o the_ appellants under their said rule n^W and tin repondents claim the benefit of this objlc i'on (b) V^ithout waiver thereof, the respondents shew that the matters set forth in the aforesaid reason were no taken or raised at the trial of this cause as anv objection to the respondents' recovery therein ^ (c) The respondents further shew that it was not so determined by the learned judge who tHed thi. cause at the trial thereof, nor^y the Court of Queen's Bench, as is in the aforesaid reason of thf appellants erroneously alleged. ^ 17.-(a) The respondents insist that the ground of in &::'-Z % '"^ f!^'''' P'^''«^ ullemk?ngTf ^yfffes and Re7/nolds, to provide exchange on England to cover the advances of respondent, i^ not open to the appellants under their said rLl« ^b^'cdon.''^ "^P°"'°"^^ ^*^^'" *^« ^^-^^^of thl: (^) jVithout any waiver of such objection, the resnon dents shew that the matters set fith in he aforos^^l reason were not taken or raised at the tr al of Jh Statement ' « proper m hat behalf and that the appellants at the tHal pt this^ cause did not object to any ruling of the said judge m that behalf, nor did the appellants rai e any objection thereto ; and the appellants are now precluded from relying on any of the aforesaid matters as a reason of appeal herein. 18.— (a) The respondents insist that the ground of an- peal relating to an alleged assumption by the Court ot Queens Bench, that the appellants would be under their said rule nisi, and the respindents statement. Claim the benefit of this objection. (b) Without waiver thereof, the respondents show that the matters m the aforesaid reason set forth were proper for the consideration of the jury at the trial of this cause, subject to the ruling in that behalf of the learned judge who tried the said cause, and that the appellants at the trial of this cause did not nnf SL .r^ '"^"'^i*^ *^' '^''^ J^'^Se in that behalf, nor did the respondents or the appellants require any ruling of the learned judge therein ; as upon the general question submitted to the jury, and in issue between the said parties, the question whether the appellants were or were not in point of law liable on die said bills of exchange (as such) was imma-, 19.— (a) Without waiver of the several objections of the respondents to so much of the said rule nisi as seeks a new trial for the admission of illegal and improper evidence, upon the ground that such ob- jections are not the subject of appeal in this Lon- ourable court; the respondents further shew that saia alleged improper evidence was not sufficiently ERROR AND APPEAL llEPORTS. 309 (*) (Icsiro from the Icavno] ;.T r '^^ ^^^^^^^ or "^^ — ' cause, any s;J:7l^;fi:' ^^v !i>'^« -^"-^:^'^- respect to such evidence. ^ ' ' """^ '"^'"S with^^^j.^^^ (Bank. The respondents further show as tl.n f.. . • (c) The respondents further show that th. made use of the said ovuil • , *"® appellants in examining. and X ,-' on their own behalf, and ana the, ^^r!^ Z:^^:^^-^^^-^ ^'- -: prTpttd S"-^^^^ *^,^' *^--d evidence the LCd" ud'e t'l 't Tl t'' ""^ ^"^^°S of point of law, an fhaf H i • i ^'^ ''^' ^'^^^^c' in Queen's J3eLch in tl .^ Vrr'''' °^*^'^ ^^^^^ ^^ and in noresoec orvl ^'^"^^^y'^« and is correct by this Tonou^rbL eiur"'' "' ^''^^' '' ^' '''''^'^ ''"""""'• ''^•udS^; tKruiVo^^^ -.^ i-'-^t' *^-' t^o saM rale mJ fhT ^""^ ? ^™'''> "P"" the ami .ho .C; gite^LX^^ia?".™"'"'"^''' are correct in law nn.l ,1 . !' ™"'''' "">> """1 raised „o valM jrouml, If "' *,° "PP""""" have «» appeal shil7relliStiSS.°°' '"" l^Z: am. Mr'^IZ' **; •"•; '''• ^'•"■''^' <5- C-. Mr. /, aiui ivir. ^wc?ewn for the appellants. A^Ll'^Q TTI"^' ^•' '''' ^^^^' Q- ^^ ^-^ Mr. • ^/•oo/«, ti. C, for the respondents. .he'roZ;ri:*f,,vr:"i "^^"" ""'"-"^ '■- f).. • • , ° ^J" *^<^ parties respect vely ; and 40 VOL. ir. i. 310 ERROR AND APPEAL REPORTS. 1864. Vankougiinet, C— The facts in this case, so far as oTwCtirn^^^y *^*^ ^^ ''^"y importance, are sufficiently set forth in Railway Co. tho judgment delivered by my brother Ilagarty in the commmiai court below, and I need now mention only such of them as will render plain the reasons for the decision at which we have arrived. Tho appellants were incorporated as a company to construct and maintain a railway in Canada. The third section of the act 16 Victoria, chapter 3, relating to the company, after reciting " for the avoid- ance of doubt," declares and enacts, " that the company have had and shall have power and authority to borrow money from time to time for making and completing, maintaining and working, the rjiilway as they might or may think advisable, and to pledge the lands, tolls, revenues, and other property of the company, for the due payment thereof, and might and may make the bonds or debentures issued by the company for securing the payment of any sums so borrowed, or to be bor- rowed, convertible into stock of the company on the Judgment, terms and conditions expressed or to be expressed in such bonds or debentures, or in the by-laws of the com- pany, and might and may insert in any bonds or ? * *( debentures issued, or to be issued by them, such terms and conditions of any kind whatsoever as they mif^ht or may think most for the advantage of the said company." This, with the limitation prescribed by the 4th section of 22 Victoria, chapter 116, is the only provision of law which I can find that authorises the Great Western Railway Company to borrow money ; and, as will be seen from it, such borrowing is for the purposes proper of the company. The company conceiving that the Detroit and Milwaukee Railway running through the State of Michigan, and separated by the Detroit River from tho extreme western terminus of the Great Western Railway would be an important feeder to it, and a most important connection in its business with the Western States, resolved upon advan- cing money for the completion of that line of road and its eflfectiye working; and, accordingly, at a general ERROR AND APPEAL REPORTS. 811 meeting of the proprietors of the Great Western Rail- 18G3 way Company, held in London, England, on the 1st of ^^-^ October, 1857, and at a meeting held at the company's Kay'^co" office in Hamilton, Canada, on the 2nd of November, comJ^nia. 18o7, It was resolved, " That the directors be autho- '"""• nsed to advance to the Detroit and Milwaukee llailway Company, such an amount not exceeding ^150,000 sterling as may be necessary to ensure the completion of the railway across Michigan in connection -.vith the Great Western llailway of Canada ; such advance being made as a temporary loan, and on sufficient security; the expenditure of the. same being subject to the control of the Great Western Railway Company." That the Great Western Railway Company had, at the time of the passing of this resolution, no right or power to appropriate their funds to such a loan or to borrow money to effect it, I think, no one will dispute. They - were not empowered by the legislature to appropriate any portion of their capital and stock, or funds to sus- tain a railway or any enterprise in a foreign country or , , beyond the limits of their own road; and, for the purposes of their railway only, were they authorised to borrow at all. I think also it cannot be doubted that any one contracting with them to advance money to the Detroit and Milwaukee Railway on the strength of such a resolution, or of any guarantee or contract that might have been made under it, could never have held the Great Western Railway Company responsible for such advance if made. Were the subject otherwise open to doubt, I think the statute 22 Victoria, chapter 116, section 11, removes it: for there, all parties, as also the legislature, seem tc have considered that an act of parliament was required to legalise the advance which had been made under the resolution referred to. That section is in the following words : ^ " And whereas the Great Western Railway Company m order to form connections with railways in the United btates of America, has to lay down its rails out of the province of Canada, and to provide facilities at stations 'i :i .,) M '" ii 312 ERROn AND APPEAL LiiPORTS. 1864. and otWJf^e, for consolidating its traffic; therefore the o^';?:Zl?'r* J^''-f ". K'^'l^^ay Company shall have full power K«ii,.»y Co. and authority to use its funds, by ^Miy of loan or other- OomJirciai )^'3^» "i providing proper connections, and in promotinfr Bank. Its traffic with railways in the United States of North , America, .provided that no such expenditure shall be incurred unless sanctioned by a vote to that end of two- tb.r>.i of the shareholders voting in person or by proxy af r>eneral meeting of the shareholders specially called for that purpose ; provided always, that the power hereby granted shall not be construed so as to prevent any other railway company from using its funds in pro- viding the same connections, and promoting its traffic with railways in the said United States ; and provided also, that whenever any other railway company shall desire to make such connections, the said Great Western Kailway Company shall be bound to assent to the same on equitable and reasonable terms ; and provided further that the loan of seven hundred and fifty thousand dol- lars already made by the said Company to the Detroit and Milwaukee Railway Company is hereby declared to ' Jndgment It will be observed that while authority is thus given to lend money, no authority is given to borroto m^'oney for the purpose of lending or otherwise, and this is a most important distinction in my view. It is one thing to authorise a company to lend out of its own funds, but it is quite another thing to enable it to go beyond these and the amount of its authorised capital stock, and encumber the undertaking with a load of debt which may utterly paralyze it and render it worthless to the stockholders and useless to the public, whoso interests in such enterprises have a largo part in legislative consideration. There are certain trading concerns, incorporated or not incorporated, the nature "of whose business assumes, nay even requires, that they shall become borrowers or holders of moneys from others, at interest, or not, as may be agreed upon : and in sLch cases authority in them to that end is implied. But when a company is authorised to raise among subscribers to its stock a certain sum of money and therewith to BRROR AN© APPEAL llEPORtS. ^Jg reterred to any authority which docidos that they need ^-v^ not by such subscription to stock mocuvo th. J oT^rr, funds huff], nf \\ . ,"^'' Piocuie the necessary in onn . r ' «^.o.n of S7,,o.ooo x:e?/„ir. :ti'or : therebv iustifiprl w '^ respondents was contrary view. I think th. ^^^ *^® authorised to advance to 2 n ;^^" '^'/'''<^iors he properly provided or arranged for 'hetHf "'' .nerease of ,hare capital or otherwise ."i.fho^: loan., and that tko m„„,y „, „,,„,„; .h~° idi^ t^:l di4 1864. ERROR AND APPEAL REPORTS. I! ,i. i; m^ ml purpose. There is nothing to the contrary shewn, and ot. wostorn-'- ^'""'^ ^^® Cannot infer that they contcmphated or were K«iiw«y CO. doing any thing illegal in furnishing or procuring the commeHai money. I think also we should assume that these reso- lutions were .egularly passed,- and by proper authority: their legality has not been questioned before us. Adopting then this position, wo must, I think, hold that the directors of tiio company as the authorised agents of the shareholders were to arrange how this money so agreed to bo loaned was to be advanced from time to time, as well in regard to amounts and times. of advance, as to the method by which the money was to be procured from England to be made available in Canada, and in the locality where its expenditure was to take place. The body of shareholders could not discharge this ministerial duty, though it required the exercise of some judgment. The directors themselves, numerous as they were, could not collectively receive or disburse the money ; and hence it became necessary Judgment, for them to select sub-agents through whose hands the money should pass, and who should be authorised to receive it. They did select for this purpose, Mr. Brydgcs, the managing director of the company, and Mr. Reynolds, who had charge in Canada of its finances. These gentlemen, for we may take it that they were acting in concert throughout, in the month of December, 1857, proposed to Mr. Ross, cashier of the bank of the respondents, to advance, to the Detroit and Milwaukee Railway Company sufficient money for their requirements, and exhibited to him the resolution of the Great Western Railway proprietory, sanctioning the loan of £150,000 sterling. What passed at this interview, at which Mr. Reynolds, but not Mr. Bridyes personally, was present, is narrated by the parties thereat in statements most opposing. This-rauch, however, we can arrive at, that the final arrangement between the parties was that an account was to be opened in the name of the Detroit and Mil- waukee Railway Company, with the term ^'account Great Western Railway Company " superadded, and that any ERROR AND APPEAL REPORTS. 815 balances overdue on the account after crediting traffic 18(M. receipts of the Detroit and Milwaukee road paid in, were ^^^^ to be covered by bills of exchange on England, at least to "an^arc'o" the extent of the £150,000 sterling. An account inCo^nTereiM accordance with this arrangement was opened by the ""'• bank, and the moneys paid out upon it from time to ume were so paid upon cheques, by or on behalf of the Great Western Railway Company. It is admitted, if not proved otherwise, that the bank had notice of the two reso utions of the Great Western Kaihvay Company for the loans to the. Detroit an «-«->--•*• i. . '^"•'•'■^'"""opiopuBition that the superintendent of a railway or any other company ,^h08e biwincBs is not the borrowing or lending of money,' < n%l I* I' 1, I' >t i 1.1 S20 1864. ERROR AND APPEAL REPORTS. ^^^^ can involve the shareholders in any amount of liability 2Lir'r T ., ? l"s recklessness may choose thus to incur. The Railway Co. shareholders expressly limited the amount for ^vhich ihev --- were willing and intended to be liable, and the board In ^ngland again and again forbade Mr. Brt/dges and Mr Eet/nolds going beyond it. Every precaution to prevent any excess was taken, and yet in the face of all this we are asked to make the corporation responsible not merely for the unauthorised but for the forbidden acts of their officers. The report of the directors in answer to cer- tarn charges of a committee of investigation, which was rel.ed upon as shewing knowledge and acquiescence by the shareholders, shews the contrary. In that report they are expressly informed that the expenditure on the Detroit and Milwaukee railway consisted of the ^250 000 sterling loan, and an additional sum produced from traffic receipts and moneys obtained in America, not by or on the credit of the Great Western Railway Compariy, but by the Detroit and Milwaukee Railway Company. We J^*^.nt. think there was neither previous sanction nor knowledge from time to time, nor subsequent ratification by the sharehoiaers, or even the directors, of the dealin^rs be- tween Messrs. Eeynolds and Bridges and the°Com- mercial Bank in respect of this Detroit and Milwaukee .T "XTn"'.' '"'^ '^'' '^'''^'''' ^'' '^"y «"°^ beyond the £250,000 the appellants are not liable. As to the evidence objected to, we think that the entry in the Commercial Bank books of the minute of the Board of Directors in regard to the application made by Mr. Ret/nolds to Mr. Ross to open this account was properly received m evidence. It was an entry made at the time, and initiated and authorised the transaction on the par^ of the bank; and as shewing what they had agreed to do, and had authorised their own officers to do. we think It admissible, being part of the reagestx. The other two pieces of evidence objected to, viz., the monthly statement of the bank's transactions at the BMlOIl AKD IppEiL KEPOETS. . 321 iney nad any bearing at nil I'n th^ /• „ "^ "caiuij^ at an in the case werf> mtfioi. ;,» favour of the appellants, who object to th I CC which we have taken of the rights and liabilities of h! parties was not presented to the court belo nor indl was ,t prominently discussed before us E cTp " see. to Jave rested upon the extreme rights dle'd b^ them. The one to the full amount of the money ad vanced : the other to freedom from liability for any hint The co„,, below thinking the plaintiffs entitled to jdl" re use VnT^ro?; ''^"' "''"^ '''''''' ^'^' ^^^'-» refused and properly, a nonsuit, and also refused a new tml, inasmuch as something was undoubtedly due to thi bank, and a nominal verdict for it had boon rendered subject to the award of a referee, who T to 1 tie' amount to be paid by the appellants, with power o reVor special facts. We think, however that fl,» /^ ! •'"'"^'°'°'- m he amount for „|,ieh „ ,hi„k ,he defe„I« ca! be .lone made liable, or choose to asoer.,,i„ i" by a re ereoce, or, .„ ease any addition! faots likely to vL he op,„>o„s we have expressed ean be farnish^l, ehoose uZ otV° 'v.'™""™^ -sported ai;„t;: referee. Of course it is desirable that neither ad.liiion.l .xpense nor delay should be incurred, but n ss t ^ar ties arrange otherwise, wo have no iuerna.i o h Lto grant a new trial, and without costs. . thel'e-r;:ftrn:L':':ttrrM^^"°"°°"''' rtavr ;' r ■^-'^' "e^r Ser^ '" "•'' ■'J' His Lordship, Mr. Justice ff„garl!/. ' • i\ U' .h i li if! 822 ERROR AND APPEAL REPORTS. Mr^W V'"'""?'' '''' ^«^ *"^^ ^«f°r« the late Co»J-lu, !u -^ ^ ''"'' ^''■*'''" questions in writing, to which Co»».je.., they were requested to give answers in writing. to the Great Western or to the Detroit and Milwaukee ? or was the credit given upon the responsibility of Messrs Br,dffes ..^Reynolds, irrespective\f either^LpIny? from ^; J^^ ^'T' ^'y^^'' ""'^ ^^^""^^^ -"thority from the Great Western Railway Company to make CoZn TT'^"'''' ^'' '^' ^''''^' '^^ Milwaukee Company to the extent of ^250,000 sterling, agreed to be loaned by the former to the latter company, Ind was the account of the Commercial Bank opened and cln! ducted by them m pursuance of such authority ? 3rd Had the Commercial Bank notice at any time while the account was going on that Messrs. Brydges ..d^.nt. and Eeynolds had exceeded their authority, or that more tZ e/petded r' '"""""^" *° ^''''''' ^^^^"°^' ^^^ 4th Suppose the original credit was given by the bank to the Great Western Company on the opening of the account, was there any understood limitation between the parties as to the question of liability at the time the etter of the 16th of December, 1858, was given eitht to the extent of the second loan of ^100,000 sterling or otherwise, or was the account continued after that period m the same manner as before by the parties. Jh\^'V^' Great Western Company by its dealing. • with the Detroit and Milwaukee Company reao the benefit o the expenditure made by tlL ^oZerda Bank on the Detroit and Milwaukee account. The jury gave answers in writing to these queries- To the l8t. That the credit was given to the defendants. i Oomoureial g.ven, and the account was conlirued in tit' ■""""^ "» I'foro the date of that lelr "°" benefit of the exld- '. '^""^^"^ ""'' «'P *« Detroit and MiCroeTcLr'' "^ ^'""""^^ °''"" .■^r:f::^%ttfi;:^^^^^^^^^^^ .8 "greed o„ S ,, "="'"'""") "Po» a reference, . »^oledo„"the?e:orT^a::^TJt^^^^^^^ »hal. be entitled .: a ., . Xl b " ""^ •".'"'"'"^' a referee tn h. .u 7'^"'<^^» shull be ascertained by 'erm »; ; .X'trif'lhf ° T'" «"'=°''-'^' ^ a person for th . p "pc t eS TtT ""7.°^'" "^^ P.rtiea that I »h!„ T^ * ' "rS^tr '""^ oompulsory reference. The referee ZT ' " ' :":rrdrr~~^^ for the opinion of .Zc:„:lr"' °' '""' "P™ -"- P plaintiffs to shew cause why the verdict should p:': i i ii! 1864. at Weitom Ballway Co. T. GommeTcitl Bonk. i 824 ERROn AND APPEAL REPORTS. not be set aside and a nonsuit entered pursuant to leave reserved at the trial on various grounds, (a) The judgment of the court was delivered Mr. Justice Hagarty^ Mr. Justice Burns and McLean, C. J., after mature consideration, concurring therein. This appeal is against that judgment, and the reasons for appeal and the respondents' reasons against the appeal are fully set out in the appeal book from p. 11 to p. 24, inclusive. It appeared in evidence at the trial, and I believe is undisputed, that in August, 1857, an account was opened by the plaintiffs with the Great Western Railway Com- pany, under the sanction of the Canada board of directors, and this seemed to have been done in con- sequence of the Bank of Upper Canada, with which the Great Western account had been previously kept, refusing or declining to make further advances until the amount of overdrafts were arranged. This was done ixOfOMiA. through the plaintiffs, who assumed on behalf of the defendants the whole amount of such overdrafts. In the month of December, 1857, the plaintiffs were informed through their agent at Hamilton, that the financial director of the defendants wished to make an arrange- ment for drawing moneys voted by the shareholders in England for the Detroit and Milwaukee Railway Com- pany, in order that that company by the completion of its road should be brought into connection with the Great Western Railway Company. In consequence of that communication, the plaintiffs' cashier came up from Kingston to Toronto, where by appointment he met the financial director of the railway, Mr. Reynolds, and the agent of the bank at Hamilton. The cashier of the bank and the agent at Hamilton give testimony as to what the arrangement was with respect to the account for the Detroit and Milwaukie Railway Company, in which they perfectly agree, but Mr. Reynolds gives a totally different version of the transaction, and states (^See report of the case, 22 U. C. Q. B. R. 236. »ti ERROB. AND APPEAL REPORTS. 325 positively that the name of the Great Western Railway 1864. was not mentioned in connection with the arrangement ^-"v-^ respecting the moneys to be advanced for the completion KaiiwayT" of the Detroit and Milwaukee Railway from the loans com Jerdri made for that purpose by the shareholders in England. "'""'" In the statement f)f Mr. Reynolds as to what took place at the meeting between him and Mr. Ross at Toronto, he says, (p. 67,) that at that meeting he saw Mr. RosSy and took with him a statement and the resolutions of the Great Western board relative to the loans which Mr. Brydges and himself were instructed to employ in the completion and equipment of the Detroit and Milwaukee road. Mr. Reynolds may have inadvertently referred to both loans and the resolutions by which the London board decided upon their being made, but at the time of the meeting, i29th December, 1857, only one of the loans, for £150,000, had in fact been made ; that loan was under a resolution of the English board of the 8th of October, 1857, assented to at Hamilton by the Canadian board on the 2nd of November, 1857, and at the meeting at Toronto of the 29th of December, it could not possibly have been known that a further loan for a similar purpose would be made to the Detroit and Mil- waukee Railway Company to be expended by the same persons, the agents and servants of the Great Western Railway Company. .r- l. Jadgment. When the loan of £150,000 was made, and Messrs. Brydges and Reynolds appointed as agents foir expend- ing it, some mode must have been contemplated for transferring the amount to Canada, where the agents lived, who were entrusted with the expenditure, and it is not unreasonable to suppose that the agents were instructed to draw for the amount, as required, by bills of exchange. That they had authority to draw, is evident from the minutes of the English board, of the 18th May, 1858, (appendix, page 30,) at which it is stated that "a letter was written by the board to Mr. Pollard, manager London Joint Stock Bank, advising 42 VOL. n. . 826 ERROR AND APPEAL REPORTS. II i: J864^ him of t.he maturity on the 20th May, instant, of the eft. Mctern ^"^"^^^ °^ Mcssrs. Bn/dgcs and Rezjnolds on Detroit and R.i>";|y CO. Milwaukee loan account, accepted by the board for the Con,j.erciai gum of £G,000," requesting him to enter the same to the debit of the company. Again in the minutes of the same board on the 12th April, 3859, is a limilar minute in reference to a draft of Messrs. Brydges and Reynolda, for ,:o,000, accepted by the resolution of the board, and tailing due on the 17th April. The board by accepting the drafts of their agents, must be supposed to have given them, as individuals, a right to control the moneys which they were authorised to expend, and if the plaintiffs, knowing them to have such authority, advanced from time to time, on their request, moneys to be expended in carrying out the views of the board in making loans, I cannot think that the. plaintiffs, as bankers, were bound to ask what particular work, or for what particular object the amount was to be applied. That a large amount was advanced by the plaintiffs for Jndgmene. an object in which the defendants were deeply inter- ested, is manifest, and if the defendants' agents have exceeded their autiiority, the plaintiffs having no notice of that fact, ought not to lose the amount of their advances. The defendants were extremely anxious to have the Detroit and Milwaukee Railway completed, under a conviction that it would form a most valuable connection with the Great Western, and when they agreed to make the first loan of £150,000 sterling, it was under the impression that that would be sufficient. Subsequently a further loan of £100,000 was sanctioned," for the purpose of equipping the road, and providing stations. If, then, any portion of the latter loan was in fact expended in completing the road, such expendi- ture might be considered as contrary to the intention of the shareholders and ultra vires, but the plaintiffs could not, in advancing the moneys, be considered as parties to the misapplication of the money, and on that account not entitled to recover. The ill jury have found, upon the trial, that Messrs. ERROR AND APPEAL REPORTS. m Western Company to make financial arrangements for -vC the latter company, and that the account uith the plain- "•""• thereof, There was abundance of evidence before them on that point, and I think the finding is correct! f Jr"/f ^"'\'^l^' '^'' '''"P^"^'^ "^«°""* ^vas trans- ferred from the Bank of Upper Canada to the Com- m real ^ank, and wh ., in December following, the intelligence was received of the Great Western Board in London, making the loan of £150,000, it was quite natura that Messrs. Br,,,es and i? ^..?^/siruld uvaa themselves of the company's bankers' for the ur the -9th December, the interview between Mr. lioss the cashier of the bank, and Mr. Re.noUs, t.ok place when the arrangement was effected respectincr ^vhich the . . witnesses differ so very materially. Judging I I r^'" testim6ny, I cannot but think the testimony "of M^.srs of hTrr""^^; ^;- ^"'' '"^ '^' ''^y fi-' -«--n w th th . ^°^ ^''' ^'^'''^^'' ^"-^ ^^'''-"t consulting ^at £150,000 sterling was awaiting the drafts of Messrs. Br^/dgesand Reynolds, to be expended by them should Drd "d' ZT' '' '''^'^ -' the'crdi of :; Jirj/dges and i?c^noW« might require. It is muc'i rnore reasonable to suppose that Mr.'i^oa. should d"le such a responsibility, and that he should m ke the ofXte:: 'wT' T^'"' «^^^-ees toteVb ot tne (xreat Western Company. There can b^ r,n .he vera,«t ,ho„ld be for, wa, agreed upon ^27^ .'I 828 1864. ERROR AND APPEAL REPORTS. -I I, fill' parties, and is yet open ; if the referee has included aTw^n^"^ objectionable items in hia report, the court may iuuw.y Co. refer the matter back to him with their opinion, and he comnereiai ^ill, no doubt, corrcct any error he may have' made. 1 should be exceedingly averse to sending the case again to a jur^; the interests of both parties seem to forbid it. I do not see any sufficient grounds for the appeal, and therefore I am of opinion that it must bo dismissed with costs. While I am obliged to come to this conclu- sion, I must acknowledge that the intimation given by both parties that the case will be still "urther appealed, aifords me much satisfaction. The amount in c'spute is very large, and the law, as to the liability of corpora- tions, unsettled, and a decision from the highest court of appeal will go far to establish the law in such cases, Haqarty, J. — I was not present at the argument, and therefore give no judgment ; but I think it right to add to the judgment just delivered, that in the elaborafe Judgawt argument of the appellants in the Queen's Bench no dis- tinction whatever was pressed on the court between the liability for the unpaid portions of the two loans and the residue of the claim. Nor, as far as the papers shew, was any such point made at the trial. The voluminous grounds of nonsuit or new trial do not suggest it. It is clear there could not have been a non- suit, and as to setting aside the verdict the plaintiiTs were, it seems, entitled to recover about £100,000 ; so that in accordance with the views of the Court of Appeal, the judgment of the Queen's Bench was technically correct in discharging the appellants' rule. The difficulty is created by the fact of the verdict being for a nominal sum, with a consent endorsed on the record that the amount for which the verdict should be entered was to be fixed by an arbitrator: "The referee to have power to report upon the different classes of the account, such as amounts paid upon coupons, upon SRROP AND APPEAL REPORTS. 82d cheques, upon promissory notes or otherwise, aT,d to ' 1864 d aw „p a s atcent of facts upon each for the' opinion -^ ot the court." ^ at. w..t.rn Kail way Co. T. In the vow of the Conrt of Appeal the plaintiffs can- '"'• and «nlc3, orae new facts can bo given in evidence, if a new trial take place the jndge mnst so charge the jury. If the referee iind the facts as he is impowered to do •be court can apply the l„ „ow declared ^o these act, . an. so a new trial be needless ; or perhaps'if aTawaS bo tnade U could be referred back to the referee Sa trrcwed':"''"""""^""-"''^'^-'--''ot: On hearing the judgment of the court, the counsel for tjlTff T' '"r '"""^""""^ '= "° »- r b expressed by the court, should fii the amount due to th Pla,nt,ffs, as both parties had at the trial by counse wuhdrawn the question of amount from the consMeratiou of the judge and jury, and had consented to a v rd "c" for one sh.lhng, subject to be increased by the award of an arbitrator, who it is admitted was appointed The court on consideration ruled that if the plaintiffs Sd Jt'w t^si. itth?grii:>;t:r --^^ tfr.;^trr:?i:!ta.T'''^^""'^ -h notice Should bo bo'uT.Ler'et, ' /t^t f;t ^0 ERROR AND APPEAL REPORTS. 1864. appellants, the defendants below, did not give such orv!^n °°*'°® ^^^ore that day then a new trial to be ordered Juiiwv Co. with costs to be paid by the appellants, the defendanto Commercial ]„ tho COUrt below. [Before the Hon. Arch. McLean, Ex-C. J., President, the Hon. W. H. Draper, 0. B., Chief Justice of Upper Canada, the Hon. P. 31. Vankoughnet, Chancellor, the Hon. W. B. Richards, Chief Justice of the Com- mon Pleas, the Hon. Vice- Chancellor Esten, the Hon. Mr. Justice Morrison, and the Hon. Mr. Justice John Wilson.'\ On an ApPEAti PROM THH CotJRT OF ChANOBRT. The Desjardins Canal Company, Appellants, and Tub Great Wj^stern Railway Company, Re- spondents. Sptcific pnformanee of agreement to aeeept work after infpect{on— Appoint- ment ofehgineert to inspect— Reference to maaler to enquire. Two incorporated trading companies agreed by writing under their corporate seals, tliiU certain works wliich were to be constructed by one for the other, should, on completion, be inspected by engineers to be chosen by tho companies respectively, and if reported as completed, the works were to be accepted by the party for whom they were done, who from thenceforth should be debarred from denying or contesting the due and proper execution and acceptance of the works. After the works were alleged to have been completed the parties who performed the same notified the others thereof cal ing upon them to appoint an engineer, which was not done! and subsequently a portion of the works having been destroyed a bill was filed to compel the parties so neglecting to accept the Tu.!i J*?^ """Z.* ^'.''"'' ( ^<'"''0"i/>'"'l, C, dubilanle.) considering that the delay which had occurred in naming an engineer, accordinff to the terms of the agreement, ought not to preclude the parties from obtaining an inspection of (he works, made a decree in favour of the plaintiffs, but under the circumstances directed a reference to the nnaster for the purpose of enquiring and reporting as to the due performance of the works. On appeal, this decree was reversed. / J^ TT® ?.''^ \" ^^^ ?°"''' ^^^°^ ordered to be dismissed with costs {Mitten, V. C, dissenting.) This was an appeal from a decree of the Court of Chancery, as reported in Grant's Chancery Reports, volume 9, page 503, where the facts sufficiently appear. t The decree drawn up on the judgment there reported, MROR AND APPEAL REPORTS. 381 directed " thnt thi, a s.ould w.thin ono month aSr""'^'^'^<'"dant8 v-v^ tJieir solicitor of the said Inoln '•""' "P"" ^^em or "f'J"-'"-* referee, or in defaul hat tL' "''"'""V^ "" ^"g'""e'^r '"V.^ to co-operate with the cc^^Uter^^ ?'""'! "'''"^ oneStn:rc? and to proceed according othot.L ''/ T^ P'-^'^''^'^, and specifications tnentro^nld and tn' '^ '''° "S^eement whether the said works aran'v h1 V'P''^ *° ^'"'^ '^^^t completed according to the teC, P^l'"'''^^"''^ ^'"^ been and specifications. And in .. ' °^ ^^' '^''^ •Weement the plaintiffs and the en.inV' '"'"^^ °^ ^''« ^^ineer of dantsorby thiscourt aX ::eSrr' '.^ *^« ^«^- provided for, not bdn^ ablT/.^^^'^''"^^ engineers were to n.Sate . tl ""^l''"' •^''" *^« ««""d that case the said twoTst .amcdl'"^'"^^''' °"^ ^^ third engineer were to proceenL /'"''"' '^"^ «"^h of the said agreement a^nd snerifi.T^'"^ *° ^'^^ ^''"'' aforesaid ; and thej or any two of .\'"' *° '^"™'"« «« as aforei. a„„„„„_ f„^ „spondon«. In addaion lo ll.e oasc» citod in tho court below PM- ZL r't"" ^'"''"^ ^''- ") *-*- V. IV ill C .» / t , *" ■®"'''"''"' ''•"■■ ''""'""J Co., (/) p"""'"' "• ff'"P''er'•»' ing^LTse:™, rtrtt" "■" ™""' »' '"-"y- f°'>«- tribunal of . iliu 5' "° ""'/"" °™' '»"'« «f all ^ic..on. bave\;::t a ::t2o7r'"? '^T^'"™- ■■> which there i, a remedv ,?■ t ''°""« "^ <""«» the ground on wh.eh T ^ uf- ^"' '" ">«« ™«8 lO' " S. oil, J. 39a. (ro„gl,t before'- «».». km, eo that m „„& ,he effect of t!,e dccoe i, a>""°' already ,„.,„ateJ,.o transfer the investigation t ' .h and t:'' w\T-" t° '"'" ""^''°'»'' before a CO r and jury. What ,s shewn to be the oUecl of the decree as In the argument by way of sustaining the judgment m,lT "1":' " '■' °=™"-'' "■»' "' plaintiff? Z fo it V hit """ °' '"" ""d-'aking, and there- lore ,t «uld be unnecessary to decree specific perfor- h,8 case .t ,s not pretended would be directed,) even i .t«re manifest that the contract had not been perform .h« very fact and not to appoint the engineer to ascer- ,^ II seems to me that the doubts and difiiculties bu„ gmedby hi, lordship the Cl.ancellor in the cour be oT « to the propriety of makingthis decree under the fact^ disclosed, cannot be overcome. tJ}' T'f" °f "" ■''"'"'"f^ ^'^"^ ">» »"" is this- .h y ask that the curt may appoint an engineer tj proceed m company with their engineer to inspect the works and that the defendants may be pe pe „a t enjotned from commencing any suit at law ^l reference defendants from sumg them at law for a breach of this very agreement, and anticipating them in the commence me, . of the su„, they wish to have the matter dirposed appealed agamst, they propose to have the questions as he performance of the contract settled in the ma" ZL IT' '""'"' "' """™« '"^ ^I^f-dant" to bring tliem before a court and jury. ^ If' ' \ 1 ■ '' (■\ < ■ 1 ' 'i 'i'-- } !•• f i 1 1 *■ ^ . m I lv )■ "h i . ' f£ uLU 386 1864. ERROR AND APPEAL REPORTS. ^^^^ It being admitted that there cannot be an inspection D'-j.rdini °^ *b® ''ridge because it is destroyed, neither plaintiffs ^ c.n.1 Co. nor defendants can have the judgment of any engineer Biiiwy"(S?f''om his own personal examination (unless such exami- nation was made before the bridge was destroyed) as to how far tho work has been performed according to the contract. As what the parties contracted for and what both desired is not now attainable, I think the court below ought to have dismissed the plaintiffs' bill, leaving the parties to their legal remedies. If to enable the plaintiffs to recover something due them from the defendnnts it had been necessary to obtain the certificate of the engineers that the work had been performed according to the contract as a condition precedent to their recovery, and in consequence of the defendants' delay to name an engineer in their behalf, such certificate could not be obtained ; under such cir- cumstances the assistance of a court of equity might i^amtnt. ^ith some propriety be invoked to aid the plaintiff^in obtaining what was really due them, or at ail events in removing the obstruction to a recovery at law which the condition precedent interposed, but here no such obstruc- tion exists, and there seems no sufficient reason why the contest between the parties should be withdrawn from the ordinary tribunals. Although the e-^fendants might have appointed an engineer who could have attended to the matter, and in that respect may be considered responsible for the delay which took place in examining the work, yet it does not appear there was any intentional fraud in such delay, but It arose from the difficulty of procuring the atten- dance of Mr. Page, to whom they had applied to make the examination, but who, from his other engagements as engineer of the board of works, could not attend. If the plaintiffs considered it of such paramount importance to them to have the question of the proper peiforrnanr,« nf the contract on their part established they should have applied to the court within the two years in which the ERROR AND APPEAL REPORTS. 337 bridge was standing to compel the defendants to select 1864. an engineer, and they could then have submitted that W— they would perform their part of the contract if it should tt""^ appear that it had not been performed. But the plain-oe. w^.te« tiffs themselves having delayed until a personal examin- ^^'"'^ ""' ationof the bridge became impossible, and the agree- mentasto the certificate of the engineers from !uch examination not being capable of being carried out, and no obstacle existing to the plaintiffs enforcing at law '-'<^'-'' any of their other rights under the contract, I think the decree of the court below was wrong and ought to ILITI' r*;^"^'*'*^^ ^ '' '' ^'^"g^* f°r' '0 prevent the defendants from enforcing at law what may be their rights under tb^ .Atract. 44 VOL. IL 888 1864. :iil ERROR AND APPEAL REPORTS. ^Before the Eon. Archibald McLean, JEx-Q. J. Pr,.i ^n. P. M. Vankoughnet, Chancellor, the Bon miharn B Richards, C. J. O. P., the Hon, vZ Chancellor Bsten, the Hon. Mr. Justice Mrrion and the Hon. Mr. Justice Adam Wilson. Oh an Appeal fbom a Deomb op the Court of Chanokrt.. ^"iHA^'Tpnf ' Administratrix of Michael Hbn- sJoNDBN^'""''"^^' ^"" J^^^« GALLAaHER, rI Lease v>ilh right of purchase- personal representative heir-at-lau,. ^t':n^yt!it'oZ\\;L:^^^^^^^ ?--7. that an assign, carry with it a rigSt of Suroha J"^ the V« '''"/? ^.^'J"' •'°«« °o' but this court varied the decrp^^ hi !i- .•*"•"'["*'' '" ^^'^ J«ase; personal representative to e/pZl' .^ ^''^''♦"'g *he vendee of the the conve/ance'oTwW ^hTtd^r;iLTfr"ortt'^P'°P«'y• assignee of the lease. ootamed from the lessors as ^rra:^tll":iel^?rthat'fhl'?r?^ "^r -^ — 'e^^. lease was personalty! "'^ "«" '° P"''''''^^ contained in a Ai^gument. This was an appeal from a decree of the Court of Chancery, as reported in Grant's Chancery Reports vo ume .X., page 588, .here the facts giving rise to tl: case sufficiently appear. o 6 lu mtj From that decree the plaintiff appealed, on the ground that the term created in the parcel of land by thf lease m the bill mentioned, having, on the death of the lessee Mtchael Henr^han, become vested in the appellan a^ administratrix, and the covenant contained in the Tease on the part of the lessors. The Canada Company coT ferring on the lessee the privilege of purchasing thele simple and inheritance in the said parcel of land, bein^ m Its nature a covenant running with the land, the respondent, James Gallagher, by virtue of the convev- ance and assignment made to him by the ap pellant. * Wfts abaent whea judgment wfts pronounced! ERROR AND APPEAL REP0ET8. 889 became entitled to the benpfif «p « i, to the Canada Company of irn"^ "P°" pajment --^ to them according to the 1^ ^7t''' "^°"^^' P^^^^I^ 1'""* *""igco the tenor of the covenant. Oa"«gher. vested in .ho heir-aW.w, and W 2 '^.°'''*°°° "" ''' MsigniDg the term could ^ot th k "i"""'"'-'"™ in of 'he heir. The ieas in": et^^^v ' '"^ »''™' to pureha«e. 1"estion only gives ;,„ ^py^j^ i J'^in'hZ tetTvan^ 'o?h""T °^"°" "^•'-'- P»rchase, to which the court! m"^ ''°°"'»°' '» " and liabilities of elTtlbTel "'"""'''■ "" "'= "«h«» ereated a tern,, a^dl eevenr iTinc'"' '^"! '"'^ — • «. and ha, no existence out .for arar'ST' *"" woK„rdirra:rLXttr^^^^^^^ c"dtthtats::t:f;\^^^^^^^^ deed was to pass, and it didt f / ' ' '^''' '^^'' the residue of t.; erm^nd s ^2"% '' ""'"'^'^^ went with it. WelcLt v i T^'"' '' ^""''^''^ Vendors and PrrcLset "" Lf "f ^^'^^ ^^> -^"^^^^^ amongst other authorite^et-edl/^'^ '''' ^^^^' The respondent did not appear. (a) o L. T. N. S. 385, (c) C Sim. 66. (e) 14 Ves. 591. (b) 22 Beav. 625 frf) 1 Cox. 167. (/) n Ir. Ch. 136. 840 ERROR AND APPBAL RBPORTS, 1864. The judgment of the court was delivered by Ilenriban v. Oallagher. I I I l Draper, C. J.— The opinion given by the late Sir .7;! B. Bobinson, in Sampson v. McArtJmry was not concurred in by the other members of the court, and the appeal in that case was dismissed exclusively on the points raised by the appeal itself, upon none of which they thought the plaintiff entitled to succeed. In that case his lordship expressed the opinion that the bill should have been dismissed with costs; but the defend- ant, McArthur, did not ask for or desire this, and was willing to take what the decree gave him, not asking for more, and the Canada Company simply submitted to do whatever was decreed, and the majority of the court Judgment, neither expressed, nor intended to decide, that the right to purchase was to be viewed as personalty, ar Hi passed as such. I made a minute at the time of our dissent from the opinion as to that point expressed by his lord- ship, though we all concurred in dismissing the appeal. I think that the right of purchase did not pass to the administratrix ; and I should have been of opinion that this appeal should be dismissed with costs, but it has occurred to us that as between these parties it is just that a mortgage should be given by the defendant to the plaintiff. All we desire is to protect the rights of the infant heirs, which we think can effectually be done by inserting in the decree and mortgage that it is to be without prejudice to the rights of the co-heirs of Michael Bmrihan, under the covenant contained in the lease. The decree will, therefore, be varied to this ej?tent. BRBOK AKD APPEAL EEPOBTS. n^«.^ .1 „^^^P^^^ ^- ^-j Chef Justice of Upper A ;, \ -'*"''-'■'■*'. C. J. a p., the Hm. Yi.- Jushce John WiUon.l On an App«ai. ,roh ihi: Court op Qumk-. Bknch. a4i MaoOonoId V, Mocaonell, ^''''''''' P^^^'^'^'i^.'^' Appellant, and Alexandku Roderick Macdonell, Respondent. Will-CnHruciion of-DevUin^Und. in Lo.,er Cana,la~ConaUio.al ^ K'lK? wr'Sf JL'IfP'''- ^"-,'^''' - ^l-^ J-th December, •< I give, deWse, and beLeaK^Tun? °*7'"*'^ ^"« "^^ ^"""'^^ ' street, Montreal left Zhv\.y*•^""'^ property in St. Paul to my'Bon AUan, with powe^r WTf ^'"^^?''i ^'^''^^""'^ ^'"'Z^"". shortly after the makinVof this will n„ « '"o^'f ''f'"'" ""^ ''i^.l her husband made and published J il' !„?. ^f ^^^} ^^ March, 1842, fourth and fifth clauseVofwhSh' d "v eT S*^ '^'''^ ID question) to his son John B^«/,,I jrw ,, °; ,' ^'c premises son Alexander Roderick MacdJ^r S^tl!fl.f^^^ '°* ^°- ^^ to his his son Allan his watch, g£ si 'l a^d ?Ill-''' '^f '*' ^° «'''« *» part of the same will (vaml&\hl^^Z.F}\l^''^\ ^" ^ subsequent iracwl l^s Pigest, 842 1864. ERROR AND APPBAL RBP0RT8. ffs'^ow^n bfnefit "*°"***' " ""o'tB^KO ^^^raou, aa owner in fee, for ^^^S^ John Watson Macdonell had after his father's death chosen to take as « J- .. ^'8. share lot No. 32, and thereupon ^/«an« had IZratarollTe " vested in the sisters and brother absolute interests in the property in Montreal, and that no conveyance or assignment by Allan Macdondl was necoBsary to vest their portions of the estate in them. Ihinw J "^* tie judgment of the court below, that the event upon which the estate was to become divested from Allan an-^ to devolve upon the plamtiiFhad not happened: or. in other worud, that the rE«trvT"f '°\^""?.'^*'^ ^^'' *">***« I""!""* been broken. [t-STEN, V. C, dissenting,]* This was an appeal from a judgment pronounced by the Court of Queen's Bench in an action of ejectment pending in that court, wherein the respondent was plaintiff, and the appellant was defendant. The circumstances out of which the action arose, and the evidence adduced at the trial of the issue, are fully set forth in the report of the case in volume xix., page statement. jgQ^ ^f ^^^ ^^^^^^^ ^^ ^^^^ ^^^^^^ ' ^ 8 From the judgment there reported the defendant appealed, assigning as reasons of appeal :— Firstly,— That the codicil passes a present immediate interest in the land to Allan Macdonell, he not having taken orders of priesthood or holy orders. Secondly,— That the proviso or condition contained in the third section 0^ the codicil is a condition subse- quent, and cannot defeat the previous devise in the codicil, or give the plaintiff a right to recover on the facts stated. ij; ,K^i 1st. Because the performance of it is impossible, in this, that it requires Allan Macdonell to give over to to*^;L:i;?LtcTlotl*^Lt«:V°^^^^^^^ ^Mch tr^*°.'° '^ '.^^ ^"^ o?the-ia^"er;ih;c7ndyortherefor:^ ifhioh the eetato was given to him wa9 »Uent or inoperative. In nis brother and BJafo,.- ^" 1828, a» interpreted bV tV f f ";*'"""'"' of-~ "iere the property lies '„h /^ ^""^ Canada, "I""' «i«.d7p.,sedLdWv;»tedi„'':r'r °: '"'^«»' '«<' •nd therefore could not be 't" o;^"'^°"'' "»'«"> dU.on being in,pos,ibIe JZZT ^'f' ""> «'>''■ dense is absolute. Performance, the previous -U»-oid,anacanrdrtre:X--- property ,0 bis bro'tber and sil'° ",'• ^°"' '"«' refusal to do so bas been Ir? ?' "'' "" ^"°<»>i or "■'J yet bo performed "^ ""'' ""'' '"ei condition tbe inheritance of the St P.,,?? "PPe'itoent of t" brother and sist JN^iol T"' ^'"^"^ »■»»"« ■"V be exercised at anV itt T""' .°' »PP"»f»e„? estate devised to him hytlTcJT^ "' ''''' ""^ 'be ontU his death. ^ ° °°''"'' """""i be defeated eie»tlj comX° °.^°r°hell° """"f '"' >>«» «"«- "oeived the shares toXh thl , ^'^ ™'<'" '"'™g posed of the same. ' "'' '"'™« «old and dis- "0 right toTeeover."" "^ °'^'''"""'' P'^-'iff bas shown In snpport of the judanent „f .i jragment of the court below the Jndgment. , t 844 ERROR AND APPEAL REPORTS. 1864. respondent asserted that there is no error in the said ^~~^^^ iudgment of the CoOrt of Queen's Bench, and that the »• , pvstea was nchtly ordered to be deliverea to nim : that Macdonoll. ■* . , on the evidence, his right to recover was clearly proved, and that the codicil or devise relied on by the defendant was defeated and became void, in consequence of Allan Maedonell not having made over to his brother and sisters an equal portion in the St. Paul street property, Montreal, devised in the will of his mother ; and that this condition being broken, the devise over to the plaintiff took effect in law. Mr. 8. Bicharda, Q. C, for the appellant. Mr. J. Eillyard Cameron^ Q. C, for respondent Draper, C. J. — Ejectment for lot No. 37, 2nd con- cession Lochiel. A verdict was rendered at the trial in Judgment. ti"3 c^uso for the plaintiff, subject to the opinion of the Court of Queen's Bench, who in Hilary Term (23rd Vic.) ordered the postea to be delivered to the plaintiff. Against that decision the defendant appeals. The facts of the case are as follows: Mary Maedonell^ being at the time the wife of Angus Maedonell, and domiciled in Upper Canada, on the 17th December, 1828, executed her last will and testament, in presence of three subscribing witnesses, containing the following passages : " Second. — I give, devise, and bequeath my house and property in St. Paul Street, Montreal, left me by my former husband Michael Trudeau to my son, Allan Maedonell, with power to give an equal share to his sisters Helen, Catherine, and Harriett, and to his brother John. Third. — I give and devise to my daughter Mary Trudeau, two gowns and a shawl. Fourth. — Any disputes arising in the distribution of the above property to be settled by the executors." She appointed her father, her husband, and a third person executors, and died soon after making this will. EBROR AND APPEAL BEPORTS. Mscdoaald V. MaodontU. V* Allan Macdonell son of tJiA +««* . • 12th November 1818 A f/ 1 ,*"^' ""'' '^'^^^ ^^ J864. profits^ftL w: atT;:t;r^^^^ ^^-^^ -^ in the will unHJ }„•» /I :, ! T " Montreal, mentioned <*.««, .fee, h r f .i .,1 r:s:"° "^ ^-^ ^- fee of No. 37, 2nd concession of L chiel all' f '1 '"^ real estate in Upper Canada iZ a °^ "^'^'^^ 1842, by „h,„h he devised the rtole of k a? TV""-"' c ' "''"'' '™- «n tha 1st August 18J1 , r ' ■^ '"'"'""'■'I '» l">y ■oned ,„ the sai.l will, (.lZ,,C, f;;"""f ' ™™- bequeathed bj, the said la,„ MM,i L, T " W-- was. ,ha. he died™ e .r":"",". ?""' '"'"' "'<• 1« of Lower Canada, ouJha f ' ', " "'' '""' ''^ ""> >.« widow, the other ha, „ v4"^.'7'f"'V"'"' '" child. "^^ -iiudeau, their only In 1845 one Decoua^^ »,„. • «gains. ^(ta i,f„rf„„ ^' „7'"f .■■«»/"0'' judgment .J^irofMontreala^f-at": W f" """"^ "' •"« -^.... sheriff took in oxeeulionthe^i^r-'''' °" "'""'' "'o -.J property which had „ "'ll't'';/";'' f '"^ '">- and »o,d and eonve,„d the .al "^^^^t" Z""'-. *oOO, and by a iudfymonf nf i- •, ^'^'^"^ Munro, for Queen's Bend,, '7;™ ^"Jj"'"''" f" »' "- cou,' t of P^chase .one,, h. Virtue Of agreern.^:j-,th1„t On the 20th January, 1846 An -.^ consideration of ^260 hnS a "" ^^'-x^^onell, in I'oehiel, subject to a proviso T^.x '■ ""'' ™"«'»-'io» of ^250 and interest Zly,^' "'""1^'""' °" K^^u, On the 6th September. 18.5fi 7.7 7rr in consideration of Iign ' V '"'' ^^''''^''''^^^ said mortgage, and the landjlf ^^ n"' ;T7''' ''' Macdonald, the defendant in dJs'suit '' '^'^"^"'^^^ ..i4 '■1 :f;i 848 1864. ERBOR AND APPEAL REPORTS. On the 30th November, 1855, one Angus Kennedy Mcdonald I'ecovered a judgment in the court of Queen's Bench, MaJoneii. ^PP^'^ Canada, for £166 14a. 3d. On the 6th December, 1854, John Torrance, and others, recovered a judgment in the Queen's Bench, Upper Canada, against Allan Macdonell, for £995 2s. 2d. On this and on Kennedy's judgment writs of execution against the lands of Allan Macdonell were put into the hands of the sheriff, who, by virtue thereof, on the 1st April, 1856, executed a conveyance to Donald Alexander Macdonald, the defendant, in consideration of £950, of No. 37, 2nd concession Lochiel, as belong- ing to Allan Macdonell, and all the right, title, interest, equity of redemption, &c., &c., in the lot, of the said Allan Macdonell. * It further appeared that on, the 1st April, 1854, a Jnagment. Writ of execution against the goods and lands of Allan Macdonell, issued at the suit of Torrance ^ Co., out of the superior court of the district of Montreal, on a judg- ment recovered against Allan Macdonell, for debt, £923 6s. Id,, with costs and interest, on which the sheriff returned that he had taken in execution, as belonging to the defendant, four-tenths of the lot of ground, (describing it,) being the house and property devised hyMrs. MacdonelV 8 mWoi 11th. September, 1828. One of the plaintiffs in that suit bought the premises for £700 currency, and there was a proceeding in the same superior court, in which a judgment of distribution of the proceeds of that execution was rendered on the 30th November, 1854, and the sum of £658 2s. 3d. was awarded to be paid u the three sisters and brother of Allan, the devisees of Mary Macdonell, their mother. This sum was the ap'^unt produced by the sheriff's sale, less the costs and expenses. These four devisees stated, in coming before the court, that the undivided four- tenths sold Werf> their nrnnprf.Tr- hut. liawin« *V.fl ^r\c\l^ they made option of claiming the proceeds thereof, and BHROR AND APPEAL REPORTS. 349 ?act th« -^ ^"?' '^ distribution was founded. In 1864 fact, the claim was advanced in their name by TorranVe -^ f ^^- ^> h-d previously purchased the riit of each "^ devisee for the sum of £35 each. ^ ' ^'c^onen. The plaintiff therefore claimed title as devisee of his IhTwl %; ^°*"''' ^' ^^« a^'nitted at the trial John Watson Maedonell, to whom this lot, No. 37, was m the first instance devised, had exercised the electTon given him by the 16th paragraph of that wi 1 and Ld taken instead of No .^7 lof qo • i- , ' '*"" "^^ the will No qV 1 ] f ' '" ""^''^ ^^^"*' ""der , • ^'. '^ ^^^ ^^^'3ed to the plaintiff and th^ paintiff insisted that although Allan haVno tak „ tl "diret"-'"'""^'"'' ^^*' ^— ^> -"e d d flouse m bt. Paul Street, Montreal, as was his mother's tather s will, which gave Allan No. 37 in case he did not take hol^ orders, became null and void. ^-^«*- ^o^Zl'tTtV" 7:'f''^ '' ''''^"^ *^« devise of JNo 37 to the plaint'T, for in the event of Allan's not aking holy orders that lot is given to him (^'L t fee and the plaintiff's contention is, tha the ^gift cZ' ^T ? ^f '"''"" '^' '^««' '^°«J true construction of this will, for the plaintiff must stand or fall by t is Any reference to the will of Mar^ Macdonald I only ot the will and codicil of Angus. ^ The testator, when he made this will, knew Allan tLh m St "'r'.^'^' *'°"^^ ^^ expr'osses his :: Tuldno T'^'^^lJ' '' ^'^^ h« anticipated AlZ would not do so. Nevertheless, with that knowl..^ «ud anticipation, he gives to Allan immediately the'Tot m dispute, and, after making a change in the l^l^ 850 ERROR AND APPEAL REPORTS. J864^ of other portions of Lis property, rendered necessary ^i;^^ solely by this gift to Allan, he attaches a condition MacJincii. *° ^^^''^^ ^^^^ ^^^''-'^^ '»igl»t or might not operate upon it, for the pcrfonnance of which no time was limited, but which could not be deemed broken before the lapse of a reasonable time to fulfil it. This condition does not specify any particular act which is required to be done by Allan, in order to divide or give over an equal portion of the house in Montreal. If any such act had been directed, and had not been performed, it might well have been insisted that the codicil had become null, and a fortiori if any act had been done by Allan which defeated hia father's intention. ^ I have arrived at the conclusion that this is a condi- tion subsequent. I content myself with referring to Judgment. <^^avering v. mison, (a) and to the authorities collected in the 27th chapter of Jarman on Wills. I think, also, that the true construction of the last paragraph (the third) of the codicil is this: the testator construes his wife's will to have intended that the five children named therein should have an equal share in her Montreal property, and he is apprehensive lest the language of the will, even with the aid of the memor- andum endorsed by her executors thereon, might not be sufficient to effectuate that mtention. He therefore in effect says, that if Allan takes more than one-fifth, or deprives his sisters and brother of the other four-fifths of the Montreal property, he shall not have No. 87. The plain object of the father is to secure an equal division of the Montreal property among the five. He assumes that the power to do so is in Allan's hands, and he makes this part of the codicil to secure that result. He certainly never contemplated that the property in (a) 7 H. L. C». 707, BRROR AND APPEAL REPORTS. 361 afterwards died. Sho was incinnll ^ ' '"""^ i„„ r , . Jncapablo, accordmrr to our aw, of making a will to pass real estate; but ace dl e's tal'Jt ";' ''' ''-''^'''^ ^^^^ -"''^ -"^ at ' testamentary disposition of her property in Low r Canada, and it is a settled doctrine with us'^hat the L. hcz m sztc. IS to govern, among other things as to i^^! capacity of the testator to devise. If the devise had been Ie!?ally inoperative nn,? .1, the o„« „ ,„: :ititei:i x° In the opinions given, in this case, in tlio court I,ol.„ both .he then Chief Jnstice a„ces I do not tl,;„i. , properly held .hat the devise eflot No 37 .„ If" h« been defeated hy breaking the condSon Ibltt" and 80 g>v,ng effect to the devise over If tl,'^ t. ' e'o'uTdl^ lb" T'-'' '•"'■ »° "■"' - »o' of %;: : could alter the disposition, then his not UhM-,!! f n the clause of his father's \vill a to 1 vM ^ ^''^"^ ^"^«--*- abstaining fro. some inopi ve ^ '^nri^r"'" no authority .hiohn.al.est'hat a ground of Xr He cannot be said to have done any prohibitor n. f the codicil contains no prohibition. ""'' ^'' There are many cases in which, whero a nnrf^ .1 takes under a will subiect tr. « J r!- ? ^ ^ ^^'"^ nnfri^ «- wiu suDject to a condition that he shall not do a certain, act, on pain of forfeiting that which t Srrbv d '"'^'"" '' '^'"^ the%roMbU f a directly or by doing some other act which in the eml bnngs about the same result. And so it will bo whe^o act, If that ac is not performed within the time limited taTnla^rp .'"''''*'''''"'* ^'^^^^ '^' f°rf«iture will ant -? ,. ^"t It appears to me to be going beyond any decided onan tn hr-]-' f' <■ 1, b""^S weyona obiectof^',^.n7f- I .' ^""^ ""^''"^ *^« substantial Object of a condition has been attained, where nothing refused to be done which was requisite, iu 'i •It has 46 VOL. II. SS4 BRROK AND APPEAr:< REPORTS. J864^ order to attain such object, and where nothing has been Mcdonald *^°."® ^^^ch, SO far as we can see, could have defeated tie Mwaoneii. °^J6<'*» » forfeiture shall, nevertheless, be adjudged to have taken place, because the devi?oo has omitted to do some act, not particularly expressed, tc effectuate arj mten- tion of the devisor, which, by more operation of law, and without any thing done by the devisee has been oom- pletely fulfilled. Such a coratruction would be to defeat the object and ivnent of the testator by a literal adher- ence to the geiiu" ti whom the father ianruage, and the heir-at-law, to ■^ttn-.ny gave No. 37, would be dismhciited, and the -nft defeated, because ho had not done something whiuh, -if, is shewn, would have been an acJ of supererogatioa. I have examined all the cases referred to by the late Chief Justice. In Cleaver v. Spurling {a) one act was prohibited, another (the giving a release) was required. Judgnwai The former act was done, the latter omitted, and it was held a forfeiture was incurred. So in Doe v. EawJee. lb) So also in Webb v. Webb, {e) and in Macnamara v. Jones (d) In BougUon v. Boughton (e) a legacy was given to the heir on the express condition that he should not dispute the disposition of the reality made by the will which was not properly attested so as to pass real estate! It was held that the heir must elect whether he would take the legacy or the real estate, but that he could not have both. In Southei/ V. Lord Somervilh (/) the testator had assumed to devise an estate, over which he had no dispos- ing power, and two other parcels of land, which were his own, which should be post;- v :-d and enjoyed by and with the first mentioned °s ;, , and that in case the (a) 2 P. W. 526, (e) 1 P. Vims. 132, (<) 2 Tea. 12. b) 2 East, 4S1. d) 1 Br. Ch. Ca. 481, /) 18 Vea. 486. ERROR AND APPEAL EPRORTS. 855 ^M^e did not dwell in tho mansion house, on the first 1864 UK at^oned estate, after he should arrive at the a.e of wi ^von.y-one then he gave it over; and in a codidl he "1''-''<» repeated that it was his will and intention that the two "'^"•"• other parcels of land should be held and enjoyed by the person or persons to whom he had, by his will given the first mentioned house and estate The devTs e became entitled to that house and estate alio Jure Z dm not dwell in the mansion house for some years after he came of age. Lord ^on held that the devtee could no take the two smaller parcels, observing X he must look to what the testator had directed, not to what may have been his intention, supposing hi^se to S ;. . u ^ ^"^ *'''' ^''''''' P^''^'^'^" i" the will he though the principal estate, "which, if it had been subjec to the testator's will, would Lve also pas ed away" from the devisee, he had alio Jure under his wn . . father. I presume the positive provision" meTs '^" residence after attaining twenty-one years of age, as I find no other condition which would have deprived the devisee of the principal estate if it could have passed by the devise. But the case, though stronger, in my opinion than any of those cited in the court below T easily distinguishable, for a specific act was direct'ed which was not performed, nor was the direction one the m tent of which could have been reached except by Z act of the devisee himself. ^ ^ On the whole, I am of opinion the judgment should be reversed, and the postea be delivered to the appellants. Vankoughnet, C.~I concur in the learned opinion which has just been delivered. I desire merely to add to what has been said by the learned Chief Justice—' that the taking by Allan of the whole of +he rents and profits, to a share of which, by the law of Lower Canada, his sisters and brother were, as I assume .!?; 856 1864. ERROR AND APPEAL REPORTS. entitled without any deed from him, does not, in my M«aonaid °P"^'°,°' *^*^»* ^''3 position Or affect his rights under his MaJineii; [^^^f^ ^i"- Thcro is no ckuse of forfeiture in case he should wongfully take the rents or not pay over to his sisters and brother their share of what he might rightfu ly have collected. I suppose it was conve- nient that some one of those entitled should receive the rents and then divide them. The sisters and brother must be supposed to have known, at all events could have ascertained their rights, and compelled Allan to pay them their shares, or compelled the tenants to do so. Suppose a deed from Allan had been necessary to give title to his sisters and brother, and after executing It, he received and kept their proportions of the rents! would he then have forfeited the devise to him under the codicil ? and yet this act would have been equally wrongful with what he did. ;rM«„>.n, EsTE.y, V C.-Lot 37, the land in question, was deviseu by the testator, Angus 3Iacdonell, to his son John Watson, in foe, with a proviso that if he chose lot 32 instead, lot 37 was to go to his son Alexander Roderick. By the codicil it was provided, that if his son ^^^an should not enter into^ holy orders, he should have lot 37, provided that if he should not divide and give over in full an equal portion of the house on St. raul Street, Montreal, as was his mother's intention, as appears by her last will, the codicil should be void It IS admitted that lot 37 vested in Allan, he not having entered into holy orders, and the only question is whether there has been a breach of the condition as to the house and property in Montreal, in which case the Will has been re-established. It is no doubt a condition subsequent to defeat an estate, and must be strictly construed. The testator had, fourteen years before expressed an opinion on the meaning of his wife's will' butm 1842 considered that Allan still had an oppor' tunity of performing this trust. He evidently intended the will of his wife to be performed, whatever his own ERROR AND APPEAL REPORTS. 867 opinion as to its meaning m'wht be Tk;. m. apprehend, be construed ace fdil^t"o tl « \T'' ^ ^' Canada, at least snob T „ ''°^^'"S *o the law of Upper ^— v^ Canada; anO V^t ^1™' ^'afaV" "' ''''''' "^ "Carding to the law of Lower cln ad f ' """"''""' estate, immediately pass Ttl! 1 ' " "'''"''" "■"' -thoutthe neeoJt/:r.h^t::;t„T/ '"*"' anco; construed accordlnr, i. ;° 'V ^*'o° of a convey- the estate see.s to pa's !l ,lt thi I f ^'" '"^'"' is bound to convey fourifthstrb /'*'"'*'"''' ^^*» and to account to thpm f 1 ' '''*''' ^"^ ^'^^^^^^ It seems to ml It I^ilfrrs ^KlyJ-f ^' prescr be anv nr.^ f« i j . ^*iacaonell did not 'woh wo„7b : eh':??' iv"' "" "^^'»"' -f ber husband's will 1 -f ",™"''""'" ■" 1", under performaneeofhe 'wirte'd " Ti^ "'""""^ ""» .tr„::;orS:s ?t:rt;t:h°""^-'-^ and eompel him there to aeeount 1 ^[ '° '"'""y' '•*»' % but they would have r L 'dv atT^tT estate had been «i(„»t„ • tt """""^ "' '»"•• If the bave been en Ued to t ,e rer T """"•»' ""'^ ™»''' tioned, and no doubter/- .".'">°"y I have men- lewer'canad: wa "a 4roni"ro rr.^ "' "™"' '■" constitute on the r.JZT, ■ ""^ '"'"<'! ''"' « court of equi y "^Tl e T"" " """^ <" ''"'• ■"" « ''bo is en'ti ^d to u e'Tin'" 7 '° v'^"'"" '" entitle the plaintiiT in the action tfl ' "' '" n;ust appear that the estate ve, 5 in ZVf^r"' " divested. It could o,>l„ i T '"" ■"" become of a breaeh of tbi i "'" """"^ ''''"'"'^'' •>? "leans been a b^iltlf ?„!:;;- f^r^r "" of hi wifvf Iffl ,^°7!'', "» »P'"'<'n a» to the meaning posit vraetiril, r'r^'' '» "'Si" "-"'e had somf Ibe deriselfT. . ""^ ^'''"' ^''"' •■» «""»« cense of the lot « question to him, yet undoubtedly . ■ :'. 868 ERROR AND /nT8. 1864. it may be argued thaf, ho merely meant that he should "^^^^^^ perform his mother's \, »11 according to her real intention, Mtcdinoij. '^"'J *^** ^^ cannot recognise any breach of condition which is to divest Allan's estate at law, unless wo can be satisfied that his mother's will diro' ....^ „rfc to bo done, the neglect of wliich would constitute a breach of the condition contained in his father's will. The mother's ^iU certainly directs no act to be done, and according, ; lorefore, to this reasoning, we could not recognise any breach of condition which would divest Allan's ':'.ate. I confess that this reasoning has gjreat force in my mind, and considering the doctrine that conditions divesting estates are to be strictly construed, I was strongly inclined to this view of the case, but on consideration, I think the will of Angus Mncdonell'is sufficiently plain. It is true that Mrs. MacdonelVa will is not imperative, but merely enabling, but then her intention is clear that Allan should divide the property. Judgmtnt This he had not done up to 1842, when his father's will was made. Now the father says in his will that he has given this estate to Allan, on condition that he do that which his mother intended and Ciiabled him. to do, but he had not yet done. The words in the < vo wills are equipollent. The mothe. able *'himti ,Jve" to Lis sisters and brother an equal share, which implies divi- sion; the father uses the words "divide and give," and in effect :^ays that if iio dooa not " divide a ' give,' as his mother intended he "should, he shall forfeit the estate." The only question then is whether- ./.liar, has "divided and given," as he was ena1>^-d to i^) by his mother's will, and as she intended, x fa •- appear to bo thnt the >onts were divided amo, 4 t. devisees until the father's death. Allan saya in his evidence thav, iie drew the rents from his father's death, from which I infer that they were properly distributed pre- viously to that time, inasmuch as the executors had given it as their opinion that they were all equally entitled. The condition might embrace the occupation, the rents, and the conveyance of the estate, in other words, if ill. r. BRROR AND APPEAL REPORTS. ^ Man permitted them to occunv tr,« * . conveyed four-fifths of the Z^I X'T' ^ -' '^ J^ he corta nlv wonl.i J.^.,. r ^^"^'^ devisees, ^— v--^ i« does no7f„rw that .'' ■"''' "■" """''"''>"• "" "'" to convey might unrl<>r +»,« • ''^ omission .0 be i„L.eria : I 1 Zra'r'T' '" ™"'°"''°'' »'ruo.i„„ p„t upon Mr,. i^J^ ;; ["^"'^ " *» -- .' ™ c„„..;j,„<, .t,, i^^ed^a « It::?:";';- and h,s sisters without the intervention of aT " .^t;:^r::;o?r:r~^^ because ?„„„!,!! ."t^ffP" ^ '"'' ""^ '' ''""'"">' Canada t,?ert:etli" oHhfS l':,V:r^"°"°[ pper i^an,, i, and accordin;r to that l-nc T „ tend the con .tion «uld be differ t L !mT iowever, hav. been f ., fo, „,.ZT „ ""'S'". '«*.«. the conveyanco was n„ ^^ ™ "" '""'» *«' with son,fsh« of :in ;;7' »»'''' ""y^o contended have been waivrd kT ' T * '" '"' '^'""""' '» ■•' ought to ba: een ™ 7:;;!''°'' """ "r«-^ after the mother's death tlsofi""" " T"""^'' ''"" attained his fu,l age, ^ehVot'p'u: tu^'^ f"" the date of the fathor', win e . ^' ^"* ^^ '- ... -'^='*x:/rer/rfrr I'r :=:^-S^^:=.rdi:::s o»iy dreV-the „hr:nhf trtit"^- r^'*" ™g«ecu.or3 had given, as their";;::; tT; ^^1 14 .' .'I 1864. Maedonkid MtedOMll. 8$0 ERMK AND APPEAL REPORTS. Bhould bo divided, and ha'^ ordered distribution accor- dingly, and wo must suppose that Angus had acted up to this determination. I think, therefore, ho must have intended Allan to continue that distribution, and when he said in the codicil to his will that if Allan « should not dl. ide or give over in full an equal portion," it was equivalent to saying that if he should not divido the rents equally amongst his sisters, brother, and him- self, in this event his estate was to cease, and the land in question was to go to John Watson or Alexander Roderick, as the case might be. It ia clear that the testator considered that Allan would liavo power to divido or not to divido : that he had the estate vested in him, or some control over the property ; and ho intended that ho should voluntarily and without legal proceedings divide the estate or the rents amongst himself and his brother and sisters. It is immaterial in this view whether the estate vested wholly in Allan, Subject to a jttrtgmwt. trust for division, or vested in all the children equally. In other words, whether the will is to be construed according to tho law of Upper or Lower Canada. In either case the condition has been broken. Allan cer- tainly had tho control which the testator evidently considered that he would have, and respecting which he enjoined him to make a voluntary distribution of the rents. This injunction he violated by taking the rents to himself. It is clear that Allan did not divide the rents as his father intended. He drew them for his own use from his father's death ; and I think it must be intended that he continued to do so until the sale of the four-tenths to John Torrance ^ Co., in 1850. The event therefore happered on which tho conditional limi- tation was to take effect. In short, I consider that lot 37 was devised to Allan Macdonell in fee subject to a conditional limitation in favour of John Watson or Alexander Roderick, as the case might be in ' ^e he should not " divide and give" over an equal share of the property in Montreal to his sisters and brother accor- ding to the intention of his mother's will. I think he * BRROR AND APPBAI, REPORTS. 861 h a fa Lr'.t fJ'l ''^°^^'"« *° ^'^^ '-*««*'«« of 1861. and the land m question become vested in the plaintiff *"1°"'^ who IS therefore entitled to judgment in this action Th^^ ca«e was argued with much ability, and for some time T inclined in favour of the defendant in the acZ w 1 Te ot • «T T't ''-' ''' .Hg^Jn^rS:!: bv Mr ^ -^ ' T r«^* *° ^^ '^^"^^' It ^as argued will It ,s necessary to show ho had notice of what hi was bound to perform before he can be die nWi ed Such appears to be the rule according to the cTs f I>oe d Taylor v. Crisp, (a) and the rule appears to annlv equally to conditions and conditional limitXns 7ut il wou d eeem that knowledge on the part of the he r sufficient, and that a formal notification on the part o tiriTj' T 'r-' '' ''' -^ition tnC ! sary. Huch knowledge may be infflrrofl fr^«, *v crcumstances of the cat, and^n^h: ^^le rane'/ "^""• 1 JT f T''' '^ '^' ^"^ °f ^^« f'^*^- from* the f,7 of his death. He was entitled as heir-at-law in the absence of a will, to all the lands to which lis fa her was entitled, but he never claimed any but ot 8 " irl .'' r'*^°"' '^^''' 32 and Slf the other tlr7l''^rT'''''''''^''' P°««««-o; ever s nee Malm' \'T'' { *'^°' '' ^"«' ^« -tended th tho «! . ' ""f' '"'^ '^ '^' ^^^'«« contained ^. it of such knowledge trom the time of his father's death, as he never made any claim to those lands. 47 (a) 8 A. & E. 779. VOL. II. ERROR AND APPEAL REPORTS. IBefore the Eon. Sir J. B. Robinson, Ba'H.,Presiclent,the Hon. P. M. Vankoughnet, Chancellor, the Eon. W. E. Draper, 0. B., C J., the Eon. V. 0. Esten, the Eon. Mr. Justice Richards, the Eon. Mr. Justice Hagariy and the Eon. Mr. Justice Morrison."] 0» AH Appeal ibom the Cooai o» Chawek. Freeman v. The Bank op TJpper Canada.* A., on the 2nd of Februnry. 1857, created n. mortpige of rcnl estnte !n favour of B. which was duly registered on the i lih of Julv following. B., by nn endorsement on tho mortfrngp. assigned the same to • subsequently n judgment was r.cjvercd ng.iin- 1 B . which was duly registered after which C. registered the assiRhment of mo.tgage to himself Held, nffitminp tiie judgment of ihe court belnw, that tho judgment, by reason of such prior registration, had prinrity over the assignment to C, which, by reason ol such non-registration, wns Toid as against the judgment creditor. The bill in the court below was filed by the The Bank it»iumnt.gf Uppg^ Canada against Levi Potroff, Lewis Birely Freeman, Peter James Gage and William Freeman, Betting forth that on the 2n(l day of February, 1867, Potroff executed a mortgage on certain lands in the county of Wentworth, in favour of the defendant, Lewii B. Freeman, to secure the sum of ^750, which was duly registered on the 11th of July following : that on tho 80th of June, in the same year, Lewis B. Freeman assigned the mortgage to tho defendant William Freeman, which assignment was registered on the second day of December following. That on the 29th day of September in the same year, (185^,) the bank recovered a judgment in one of her Majesty's superior courts of law at Toronto, against the defendants, Lewis B. Freeman and Gage, for £610 28. lid., damages and costs, which judgment was duly entered up of record, and registered in the said county of Wentworth on the same day: that a.fi.fa, goods, issiel *The judgment in this case was mislaid, so that it could not bo reported in its proper place. ERROR AND APPEAL REPORTS. 868 prior to Wmiam Freeman ZZ I u '°''"^"^' secured thorehy »ppliedT„ 1 fil , "^ *' """^y' f.cortgagc premises. ' °' f"^"""' » From this decree the defendant win- „ appealed, on the following grou„d"-f ^'"^'^ ac,tef areUr Xi:t Z ^ ^ "^ ^'^ »on^_sec„red_.hereb„ inVe^elt ZZL^t^! 864 ERROR AND APPEAL REPORTS. JS63^ 2nd. Because by the registration of the judgment of ^1^ the respondents, the Bank of Upper Canada, before B«k\o. *^® registration of the assignment of the mortgage in the pleadings mentioned, the respondents, the Bank of Upper Canada, acquired no right to the benefit of the mortgage in preference to the appellant. 3rd. Because the registered judgment of the respon- dents, the Bank of Upper Canada, bound only the equitable interest of the respondent, Lewis Birely Freeman, in the said mortgage, and the money secured thereby at the time of the registration thereof, and that the said Lewis Birely Freeman having long before, and prior to the recovery of the judgment, assigned the said mortgage and all his interest therein, absolutely, for a valuable consideration and bona fide to the appel- lant, the judgment did not attach at all upon it. stfttemtnt. The respondents, the Bank of Upper Canada, con- tended they were entitled to retain the decree pronounced on the ground, that by eflfect of the registry laws in force at the time of the several matters in the pleadings men- tioned, the appellant's title to the mortgage in question, under the assignment thereof to him, was postponed to that of the Bank of Upper Canada, by virtue of the subsequent judgment recovered by them against the mortgagee, Lewis Birely Freeman, the said judgment having been duly registered in the county wherein the mortgaged premises were situate before the assignment was registered. Potroff also desired that the decree should be reversed or varied to the extent and for the reasons assigned by the appellant. Mr. Proudfoot for the appellant. The effect of the proviso in the third section of 13 & 14 Victoria, ch. 63, ■vas to render liable for sale only such pronertv as oelonged to im debtor. Xu this case, the propert> in ERROR AND APPEAL REPORTS. 865 long before the bank recovered the judgment under wh.h they now claim to have priorityovfrh appi ^T^ J^ord Oxford, (b) ffawkins v. aathercole, (c) Suaden'a Vendors and Purehasera, 424-427. .;^^' '?'''"^> Q- C, for the respondents, the ^an^fc of Ta Jnst Th /"" unregistered conveyanfe void aa against the judgment creditor, and ihe property embraced ,n such unregistered con^ance from' then ^ fo ward ,3 treated as belonging to the debtor untiUhe judgment ,s satisfied. He cited, amongst other cases Zatouehe v. Bumany. (d) ' |,...,.«i The judgment of the court was delivered by Vankoughnex, C.-This case rests within narrow . . hmits. The defendant, Lewis B. Freeman, having '"'^'""'• mortgage of certain premises as security to h m 'fo £750, assigned the mortgage by deed poll endorsed thereon, on the 30th of June, 1857, to L defend j mUam Freeman. The mortgage was registered bu the assignment of it never was. On fhe 29th !f September, 1857, the plaintiffs, the responden s Le' recovered a judgment against the defendant xl'i' Fre^an, the mortgagee, and caused the same to fe duly registered on the same day in the county where the mortgaged lands lie. The plaintiff, file their bm to hav this mortgage security realised to pay ff hL tion hey have fastened their judgment upon it as the property of Lewis B. Freeman, Hard as it mav appear, that one man's property should be tak!. olv another man's debt, yet I see no mean, of sc'prf'om ihe^operation of section 3 of the statute 18 andM I a) 6 Gr. Ch. R. 253. (§) C. D. M. & a. Wl Soil. &L. 187. 866 ERROR AND APPEAL REPORTS. W^ Victoria chapter 63, or of the sections 2 and 3 com- rmman ^"^«^- Under section 261 of chapter 22, Consolidated Banlu. c. ^^^^^^^ of Upper Cunada, the sheriff might upon a writ oi fi. fa. against goods, have seized this mortgage (putting the assignment out of sight for the moment,) and proceeded to enforce payment of it. The plaintiff could of course have execution of it in equity, and the only obstacle offered is the assignment of it. But under section three of the 13 & 14 Victoria, chapter 63, we must, as against the plaintiffa' registered judgment, hold that this assignment is void, or non-existent; for the language of the act is, " that every deed," &c., "whereby any lands " &c., "may be in any wise affected in law or m equity shall be adjudged fraudulent and void, not only against any subsequent purchaser or mortgagee for val- uable consideration, but aho agairiBt a suhBequent juda^ ment creditors who shall have registered," &c This language is too explicit to be evaded, though I confess I j.d,„.„t ha^'e sought, but in vain, for some distinction on which to withdraw this case from it. I have considered the opinion expressed by my brother Spragge in MoMaster V. Phipps, but I think we would not be warranted in putting upon the Linguge of the act the narrow construe- tion which he there ascribes to it, consistent as that would be with all our previous notions as to the rights of judsment creditors. Were that construction to pre- vail, the third section so far as it relates to registered ju^lgments would be inoperative, because the second section amply provides for all cases of transfer subse- quent to the registration of the judgment. In answer to the plea of hardship, it may be said that the policy of the legislature in enforcing registration was known alike to ail, and machinery provided by which each one nught secure his title. The provision may bo arbitrary bu.; so are ail acts of parliament, from the Statute of frauds c.own, and he who neglects to observe them has only lumself to. blame. Mr, Prmujooi contended, that he oame within ERROR AND APPEAL REPORTS. ser V. Bank V. 0. ■terally cop«d ,„to „,,r .=. f™„ section .l,i,.,eo„ of IS . V.c.or«, chapter 110, without regard to th! « » prov,a,o„ of great i„ portanee. Under or ao I do no. ^^^^ ^^ oire„,„,.a:ces , 'h that h.. !f '''^ '" ' "■"' °f " "•""'far, before that has anaen which, „p„„ registration there ft o we I'S'slature to prov.de against notice of that which o^>...e„tsanhae;:^,;^:c,;irnrt:e\;;r;^ co...i.„te" mcr.t::f 7'™ ='".".' '" -.-■■ ♦Y aen then can this p, ovision apply ? Juigmnt The appeal must be dismissed with costs. 368 ERROR AND APPEAL REPORTS. 1864. 1|| i 1^ IBefore the Hon. Arch. McLean, Ex-O.J., President* the Hon. William H. Draper, 0. B., 0. J., the Hon. P. M. Vankoughnet, Chancellor, the Hon. W. B. Richards, 0. J. 0. P., the Hon. Vice-Ohancellor Eaten, the Hon. Mr. Justice Hagarty, and the Hon. Mr. Justice Adam Wilson.'] On Appjul fbou the Cocri of Quun's Bench. Benjamin Ganton, Executor op Stephen Ganton, THE Elder, Appellant, and John Size and Annie Size, his wipe, Executrix of Stephen Ganton, the Younger, Respondents. In an action by an executor for money lent and advanced by his testator, the evidence of indebtedness consisted of a receipt, signed by the testator, and found amongst his papers in the words following :—" 5« "^^J O w y /APPLIED _^ IIVHGE !nc ^a; 1653 East Main street _^=r-: Rochester, NY 14609 USA .=r'^ Phone: 716/482-0300 ^='J:=S Fax: 716/288-5989 © 1993. Applied Image. Inc.. All Rights Reserved '<6- «' save in Ceeton,"" '"?""''' ""> "<"' "PPellane, P0S3es.i„„ „„s. be in I, s ete 7™'"° ""J"^ '" ""' nis lessee, the now respondent. lis mill, coL ructld tW r '^r'''' "'"=" "-""'"g .I«bs were revcll f ^™n'" ™°'' " "'»""'>' «'"" the -iob ^rnM-tavrLS;^,::::-;^^^^ natural influence of the water. *" ^^'^^ from IhTlt^&f ^"\^^"^^' - -'^ a distance reasonableuseof 1 1 '°L^' ^'"^ '^'' *'^- >« a shews that a nartf ' ^'^ ""'^ ^"'^ ^^ ^«"^«^^ (^) 375 (J) 8 Burr. 1345. II 876 ERnOB AND APPEAL REPORTS. 1804. Dlckspn T. AuitlD. author of his own mischief, as by the improper mode of constructing the pond and raceway adopted by him the slabs and refuse arc drawn into them. He also contended that Attstin, under the averments in his declaration, was bound to shew that he was a riparian proprietor, which he failed to do, the fact being that land intervenes betffeen him and the bank of the stream. Fentiman v. Smith, (a) Austin in his declaration alleges his right to the u.ie of the water to be by virtue of his possession. The fact as proved is, that he claims by virtue of the grant : claiming under a lease ho ought to have set it out and not asserted a claim as proprietor. The right to the water in this case is personal, not appurtenant to the mill. An assignment of the mill would not carry as ap- purtenant a right to the water. In Northahi v. I£arlei/,{b) cited in the court below, the right was appurtenant, puument. ■which is Sufficient for the explanation of that case. In such a case where all claim under the same deed it is sufficient to allege title by possession as again'^ oh parties. Emhrey v. Owen, (c) Mr. A. CrooJca, Q. C, for the respondent. If the argument of the other side be acquiesced in it would shcM that Rogers never had any right to construct the pond and raceway ; but the law would appear to be different as enunciated by Lord Kingsdown in Miner V. Gilmour. {d) Rogers, if in possession of and working this mill, could certainly have maintained this action, and so also can his lessee. Addison on Torts, pp. 10, G3 & 64, Eddingfield v. Onslow, {e) Here Austin stands in the place of Rogers, and can deck. re in the same form. Tucker v. Paren, (/) Zaing V. Whaley. {g) (a) 4 Bust, 107. (e) 6 Exch 353. (e) 3 Ler. 209 (g) 8 Hurl. & Nor. 676. (6) i Ell. & B. 665. (rf) 12 Moo. P. C. 181. { /■) 7 C. P. U. C. 209. BRROR AND APPEAL REPORTS. Even admitting that a natural right exists of throw- mg Blabs, &c, into a stream so as to injure a party making a reasonable use of the water, ^vhi/wH s arcel^ be contended for, the legislature Las exclul d ftct which IS here complained of. ^ Counsel also relied on the cases cited in the court below, and Con. Stat. U. C, ch. 48, sees. 3 & 13. The judgment of the court was delivered by ESTBN, V. C.-The evidence has not been given to us •n this case; but the facts appear to be' that on Bogers owned the land forming the pond and o round it boh«des the nver at this place, and the land anS the riThf'? ' '"^ ^'"'^'^ ''''' ^^"^' -'l -iJ'^ with lin -ff 1 "''"?/ '''''''' ^"'^"^'^^ «^' water to the . , plaintiff and one Vanalstine for the term of ten yea """"*• and that Vanalstine transferred all his interest in the case to the plaintiff: that a^ this time a dam anV ond and raceway existed which conducted the water of L aver to these and other mills ; which dam, pond a 'd raceway had existed for more than eight years and that he owners of mills higher up the nver^and ,' g them the defendant, had been for many yearsTn th! habit of throwing slabs and pieces and grfnj^ . of si .nto the nver, which gradually accumuLed in° he ond about he mouth of the raceway and prevented the jater from entering the raceway and flowi„rto th« t'XZf'Tt' T' '' ^" "'->^ oX'anTitie as before. Under these circumstances the presor, action was brought. It cannot be doubted that « plaintiff IS making a reasonable uae of the water o he rverin turning his mills, and that the defendan , b";"'r"r'V?"'''^' i"to the stream sol ob3uuo-. .he Sow of the water into the raceway is ! wrong-do.. It was objected that the plaintiffwZ: a VOL. If, i-H?r 878 ERROR AND APPEAL REPORTS. I' JP64^ riparian proprietor because hig premises did not extend Dkk-oB *° *^e bank of the river ; but it cannot be doubted that AMUn. ■«^5"'''» himself, if he occupied these mills, could claim all the rights of a riparian proprietor, and can it make nnv difference that he has demised the mills to the plaintiff, rcsorvin;r a narrow strip of land between the mills and the river? The plaintiff stands in the place of Rogors, and is entitled to the same remedies during the time that his interest continues. It was also ohjcctcd that tlie decl ration was improperly framed, and the right of the plaintiff not correctly stated in it, and that a variance existed between the statement and the proof, inasmuch as the right was claimed in respect of the possession, whereas it appeared from the evidence to have been derived from a grant. But this nppears to me to be a mistake; and it appears to me, although I express an opinion on the subject with much diffidence, that the declaration was framed with Jodgment Precise accuracy. The right created by the grant was not the suhjoct of the action. The defendant '{Dickson) could not be charged with a contravention of the grant because he was not bound by it, or bound to give effect to it. Any riparian owner injured by his act could have complained of it. Tlio plaintiff complains us a general riparian proprietor, and it is of no importance how he became such : whether by this lease, or by conveyance, or by devise. The lease in the present case seems to me to be only incidental as shewing how the plaintiff became a riparian proprietor, and so entitled to com- plain of the wrongful act of the defendant, which has inflicted injury on him in corauon probably with other mill-owners equally entitled to complain. It is strictly by virtue of his possession of the premises in question that the plaintiff is entitled to complain of this injury. If he had become a riparian proprietor in any other way he would have been equally entitled to complain of this act of the defendant, if it caused him injury. But even if the right ereated by the grant were the subject of the action, the case of Northam v. Harley shews ERROR AND APPEAL HEPOnTS. land f„ ,r " ''^ "'"" "'■ ■''" l-'-^"'!"" of '1.0 by he ease, ,. «u|,| ,,,.„ ^on snfRcic., ,„ ,",„!,' ° d.cl»rat,on r.s .. U f„,rao,I. I ,|,i„k ,i,c„.f„r. , ., h« the cause of the mKr-fii«f ^.e i • ^ . '^ Per C«r.-Appeal dismissed with costs. PoxTo.v V. Bulled. 0» AnXAl M0« IBB COUBI o> CoiiMoir Ptu.. ""i^'^r^TZ t,il^X^;^:^^l^^^: t^nt n preceding on an einmir.ntion as to ll cshi enn Iff "'"'"■y "*' '"^ ""^«'e,i other fu„crion..rj ,h„n .1 e juTe X^ol',!'''.,'""''"^'^^^ '''''•"■^' ""J •«ry fLat a summons to >^lLTm.llZt ■ t "T"' " '« •"><"»- Who made the order to%om , L v Hw '. ""■' ''"'■' "'' ""^ J'^Jge «Dd that the snmr appeared o t S ;'' .^' '^ ""'^^ '^'^' ^'A amult and faUe injpri«oiIm"ut °''""^ ""^ ^" «'«"«» »or This was an appeal bv TF^/Z/aT?* TT^mUr- ^ . the younger, frum ajudg.cn. of the Curt of CoZon 8T9 880 IS04. ERROR AND APPEAL REPORTS. Pleas, in a cause pending in that court wherein William -^^^ Honry BnUen was plaintiff and the said appellants, together with Wcddcrhurne Dunbar Moodie and Alex- ander Dunbar Moodie were defendants. Balitj. Statement, The facts and pleadings are fully set forth in the report of the case in the thirteenth volume of the reports of the Court of Common Pleas, at page 126. From the judgment there reported the present appeal was brought on the grounds (1st) that there was error in law in the record and proceedings. (2nd.) That the pleas of Ponton, Smyth and Matthewson disclosed a good defence to the declaration and new assignment in the action. The respondent contested the grounds of appeal, and asserted generally that the judgment was correct and ought to be affirmed. Mr. McMichael for the appellants. Mr. R. A. Harrison for the respondents. The judgment of the court was delivered by VankougiIxVet, C— I believe we all concur in affirm- ing the judgment of the court below. The main ques- tion argued there, as here, was as to the right or power of the judge of the County Court to commit the respondent to prison, because of the insufficiency of his answers to interrogatories administered to him on a personal examination as to his estate and effects, without having first given him an opportunity of being heard, either by summons or otherwise, against the application for such committal. We think that the authorities cited and the reasons given in the judgment of the learned Chief Justice of the Coiamon Pleas amply justified the decision pronounced by the court, and the recent of r fillROR AND APPEAL REPORTS, fully sustain i. T. ' *"" ''"'^°''' 'I'O M"") enJorsedthe following „™,""'' "' ""' «»!"'»''«««» " To the sheriff of the Counfv nf it .■ «ceivi„g from s"ii drfenSSl' '°'° ^"'""'^ "f" »f, etc., etc. ""'"""n. (Ihc respondent) the sum (Signed) Wm. H. Ponton." "Thisorderwasgranlcdon motion of it™ ff P™, of the town of Bellevill« in .1, V^ "•"■S.Pmton, ...orne^for the p in"^• 2^,u'^°''"7 "' ""■'"«». was delivered .0 W sheriff to h. "'^f '" °°'''>™'' sheriff by virtue of sul ! ™°"'°''' ""'' """ ""' dent, whfehrthe .;: ' a^err ''T;' "T, '"'r"" was the plaintiff's attorney in th^ ui " W ' assume that there was any chan; o a h ''""°' of th-^ "3r«*. « », •'^ ''"ange ot attorney or tw« -:^!l!!^i!:!^!i^!i^^ think we 881 l8fM. K" ♦ JuJglUDt, {«) 8 L. T. N. S. 278. (*) 4 Exch. 87. 882 1804. ERROR AND APPEAL REPORTS. must nasumo that the miHam 11. Ponton who signed tl;e endorsement on the order as plaintiff's attorney wa«, though not so expressly stated in the plea, the same attorney who had been previously acting for the plain- tiff, and who is the appellant, ns he himself alleges, and that he was thus instrumental in delivering the order to the sheriff and procuring the arrest of the respondent acts which make him responsible for the illegal arrest and the trespass thereby committed. We tlunk there- fore that the appeal must bo dismissed with costs. Ox Afnjii FROM THE Court or Common Puis. 1)1 Thomas Cockburn Kekr, John Brown, and William fokbes muiikay, appellants, AND Jonx Haldan AND Thomas Mokeland, Respondents. Interpltader utui—Attignmtnt for benf/it of crediton—Judgmtnt crcUilori, A testator hy bia will gave nil his estate, rent and personnl. to his executors in trust, empowering them nt the snnie timu to coutioue the business which he hud o irriud on in his life-time, wliioh they accordingly did for seveml yeura, nud in the course of so c.trpyinij on the business hud acquired ii large iimount of property, and subse- quently assigned the same, ns well ns that portion remaining on hand left by the tistator (about one-ninth) as that acquired since his death, to certain trustees for the benefit of ull creditors of the estate, and each executor severally assigned for the benefit of indi- vidual creditors ; the persons named as trustees took and continued in the possession of the chittels assigned under the peveral conveyances. The trusts declared were for the beni fit »nri pa»tu ofcreUitors coming in, and who were not bound to releace their claims Ajudgment having been recovered against the executors individually, upon a note made by the.u as executors, the judgment creditors claime.- a right to seiza the goods in the hands of the trustees, notwithstanding the assignments thereof. In an inter- pleader suit brought to try the question, the court below deter- mined that the assignments were sufficient to pass, and did pass the propPTty to the trustees, who were therefore en.itled as plaintiflFs in such interpleader suit to a verdict ; and that the judgment creditors wore entitled, if their judgment and execution were against the executors, to claim as creditors upon the estate assigned by them us such, and if necessary, on the separate estate of t*ich, the joint estate being exhausted. On appeal to this court the judgment of the court below was affirmed, uud the appeal dismissed with costs. This was an appeal from the court of Common Pleas reported 12th Common Pleas Reports, page 620. From EHROR AND APPEAL REPORTS. that judgment tl.odofen.lnntH in tJ.o • , , appealed, contending (Ist 1 1 V '''''^^''^'' '«"« '864 tives of the testator J.SJ^7 P""'"'^' representa- their authority b/ass^n^ ^Irr^'^f '"°^^^'^««'« to a third party for the llrAv ^""''' '" I'^'^^'^on the assignment' ::rby\;?;f:'^'-^^ (^'"'0 that severally would only pass t 1 , I" ""^ ^•^^''"''^" surplus, after pay Jron^;;-'-""' rights in the Pa«s, and did not profess T, u '' '"^ ^^''"''^ "^t goodsthemselves- tTa 1 ''"'' ^'^^ ^'•^''^'•^3' in the personal represent iLtrrTr^V""''^ ^'^ ^'^^ - disclosed in tho C...SO faud.' T ^'^'^ ^''•^"nistanoes defeat or delay t.;^^:,\::^^^^^^^^^^ to g.ve a preference to the e li / '. "" "' '^^"'""^ their individual creditor, , '^ ^'^'^ ''^^"te over P'«m..irs .n,he goods i„,J,r„„,,-°''"^ '° "-^ '" the ca,e, it ,,ppoare,l il,„t !. 1 ""'°PP™"'"6 Mr. Blake for the appellants. Mr. Sector Cameron for the respondents. The facts of the case and tu. • counsel, are stated in Jio'dUttT*' ""^' °" '^^ MCLEA.V, Ex-C. J., Presxi>,,i_tj^. i« * ■^'^'s 18 an appeal 888 BUtemtDt. 884 ERROR AND APPEAL REPORTS. i I 1864. from thu Court of Common Picas in an interpleader isauo ordered to bo tried by tbe uaid court, wherein the rcspondcnta were pluintilTd and the appellant! were defendants. The appollant.s having recovered a judgment in the Court of Common Pleoa against Mary Partotts, James P. Stonehouae, and George II. Parsons, issued execution on tho said judgment against the goods and chattuls of tbe defendants therein, directed to the sheriff of tbe united counties of Huron and Bruce, who seized certain goods as the goods of Mary Parsons mid tho other defendants mentioned in the execution. Tbe goods being claimed by the respondents an order was made by Mr. Justice Rich- ards that the plain tiffs and defendants in that suit should proceed to tho trial of an issue at the then next assizes, to be holdcn at Goderich in and for tho united counties of Huron and Bruce, and that the question to bo tried should be, whether the goods in the stores or jndgaiMit. warehouses occupied by the said Alary Parsons, Jame$ P. Stonehouse and George II. Parsons, in the market square in Goderich, or any part thereof, were at the time of the delivery of the said writ of execution to the sheriff tbe property of the plaintiffs as against the defendants. The issue came on to be tried before myself at the assizes held at Goderich in November, 1862, pursuant to the order of Mr. Justice Richards, and at the same assizes a similar issue involving the same question as to the same goods was tried in which the same plaintiffs were plaintiffs and the Bank of Upper Canada defend- ants. On the trial of the latter suit it was admitted that the defendants' writ of execution was placed in the sheriff's hands on the 11th day of December, 1861. That the judgment on which it was issued was obtained on a promissory note made by Mary Parsons, James P. Stonehouse and George U. Parsons as executrix and executors of Benjamin Parsons, and given by them as such whilst carrying on the business in which Bet^ja- ■RROR AND APPEAL REPORTS. ".do between Mar,/ J-a^Z r .^"""'l'". ISUl, "ill and tea..,„e„. of Z^" "'/' °T "''"'" '"" in hi. li(e.timo of .|,„ toZT.'r'T "'° ^"""S''''. 'hefl"> P.r., and «,. /M™ ! I^™ ' '"";] '• "^ of Iho second pan an,l .l,„ "" '"^"•«''""' -editor, of tho/a/dalj^r P '"""T "'"' «'"'^. i--«o„.o .,.,,, J--, f^-;;;.;^^^^^^^^^^^ P»rl, «nd the plaintiffs frf,, ,""" "^ ""> ""t l>.te of the will o(B^:X;: '"' '> ""•' "'" P- for,. M. krZlZ^lZTt "r"'"' -^ tors of the said will t. , '^i^nehoxise cxecu- »-ts were all dul,; fil Tilh:'^'"^?. '^'^' ^"^ "-«- W, and that there was an „n7 , . '"^ ''^l""-«^^^ ^y of possession to the p L LV^ri^f ""*T"^' ^^^^o The evidence shewed that » ' '"^^ Moreland. September, 1857. Tha aftf ? '^^ ^^'""'* '^''^^ ^'^ ?he business, which in his life-time h,fh ''"*'""''' 'n certain stores or warehoLr ? ''" """'^'^ °'^ r-h, (being the same ret^r,,".. *^«, ^^^ ^^ ^ode- order,) that such business was' carHedV"^ "^''P'^'^dcr ^^ jamm Parsons up to the date VOL. II. S85 886 ERROR AND APPEAL REPORTS. I 186 1. of the first assignment, 17th November, 1861. That eight-ninths of the goods in question in the issue were purchased on credit by the said Mary Parsom, James P. StoneJiouse and George H. Parsons in the course of such business, the remaining one-ninth having been in the store at the death of Benjamin Parsons, and remained therein until the seizure by the sheriff. In the assignment of the 7th November by Mary Par- sons, as executrix, and StoneJiouse and George H. Par- sons, as executors, it is recited that Benjamin Parsons in his life-time carried on the trade and business of a merchant in the town of Goderich, and incurred debts and liabilities to sundry persons and firms ; and further, that he made and published his last will and testament, and thereby appointed Mary Parsons executrix, and George H. Parsons and James P. StoneJiouse executors, and gave them power to carry on the said business for the benefit of Jiis estate, and gave and devised to them joapnent. all his real and personal property, except sundry small articles specifically bequeathed, in trust in the first place for the payment of all his just and lawful debts, and then upon other trusts in the said will declared. And it is further '-ecited that the said Mary Parsons James P. StoneJiouse and George R, Parsons, as such executrix and executors, continued to carry on the business previously carried on by the said Benjamin Parsons, and have incurred debts and liabilities in the name of and on account of the estate of the said Ben- jamin Parsons since the death of the said Benjamin Parsons', and the affairs and business of the said estate of the said Benjamin Parsons have become embarrassed, and the assets thereof are not sufficient and available for the immediate payment of the liabili- ties as they mature, and the said parties as such, execu- trix and executors are therefore desirous of making an assignment . of all the estate and effects vested in or belonging to them as such executrix and executors as aforesaid, and acquired by them in carrying on the said business for tho benefit of tho creditors of the said ERROR AND APPEAL REPORTS. the said deed %Z '^ ""^ "■"'" "P"""" '" (several parcels of land specified^ to T . ^"' with all h^^tc P J^enjamm Parsons, toijether dent to fte etLtn ?',, "^'' ""'' "'P™'"' -"i" «d deed a^d r ' ,"■"''' "™'""^'' « *« Merits and persona as they miaht thint „ tk^massnch trusses bLi/j'.:!"^'' T'"" '^ reasonable compensation forle care Tr "'"'" "I trouble required and bestoJd „ and aluf If ""^ """' Meoueion of the trusts ZIV T I ° '"''P" TH-ji i contained m the said d,-»,1 ^ 888 KHROll AND APPEAL REPORTS. i; i 1864. The first assignment in point of date is from Mrs. Parsons, James P. Stonehouse and George H. Partons, as executrix and executors of Benjamin Paraom, con- veying to the respondents all the property belonging to them as executors in trust for certain purposes therein mentioned. The objects of the trust are not objected to provided the executors had power to delegate to others the trusts prescribed by the will of Benjamin Parsons to be performed by them. It appears that Benjamin Parsons died in September, 1857, and from that time till the date of the assignment of the 7th November, 18G1, the persons named in the will as executrix and executors carried on the business, which he had conducted, in the name of the estate, and as they seem to have supposed for its benefit or loss. They purchased goods from Messrs. Kerr, Brotvn ^ Co., and gave promissory notes for them signed as executors and executrix of Benjamin Parsons, but when sued for Juapnent. them, they found that they were liable as individuals and not as executors. The judgment was obtained and execution issued against them as individuals in 1861, but before the execution was placed in the sheriff's hands the executors made the assignment of the 7th November, 18G1, in which it is recited that " the affairs and business of the estate of Benjamin Parsons have become embarrassed, and the assets thereof are not sufiicient and available for the immediate payment of the liabilities as they mature." Whether such embar- rassment existed at the time of the testator's death, or whether the subsequent dealing with the property by the executors caused the embarrassment, it is not mate- rial to enquire, but from the tenor of the will the strong presumption is, that the latter was the case, as the testa- tor makes several bequests in money, and gives to Mrs. 3Iari/ Parsons, his late father's widow, the annual income arising from the whole of his real and personal estate that is to sav. the annual rents and profits of his real estate, or of so much thereof as shall remain unsold, the interest of all moneys iuvested or which BRBOR AND APPEAL REPORTS. 1864. may be invested by his executors, and all profits arising from the busmess, and the use of his books, plate, and elat^ril^^ "'%""' '' ''' ^^^-- '- ^-ise^ and bequeaths a 1 his estate, real and personal, moneys, rights and interest of every descrintion L Ki Ifpnrti P^,„ m. "^ "tscription, to Oeorqe Henry Parsons The estate being embarrassed and he assets insufficient to meet liabilities as they matured he executors conveyed to the respondents al/the eff s' of the testator ^n trust, first to pay the costs, and then and fheV:: V'^i'r^^"^ ''' ^ '^^^'"^ out 'the tr ts of the Stat L '^' r'"^ "^"^""S^* ^» *he creditor ot the estate, share and share alike, without anv pre- ference whatever to any one Th« fLf , ' , Dowern fn KJa . testator gave ample estate, and to make, seal and execute such conveyances a. m.ght be necessary, and to stand seised and p'osses! sed of the said real and personal estate and property bills, notes, bonds, mortgages, moneys, securiZ S business, or the proceeds thereof in trust, in the first . . pace topay and satisfy all his joint debts\nd flra"'"'" and testamentary expenses, &c. The executors, when bey proved the will and obtained probate, became from that period entitled by law to dispose of any personal property, and in the exercise of th'a t power t'ansf re to the respondents all such property in trust for the payment of debts The object and terms of he ppe antfr *' '' "'°"^ unobjectionable, and the appellants have no ground on which to object to the • assignment of the goods of the estate, not be^n^ enUt d tract.drn f ^"'^' ^'' P^^'"^"^ ^f ^ 'J^^t not con- A to thl ; ^T. \''" *'^ ^^^^^ '' *he testator, supposed they were buying in their character as execu- tors there are separate assignments from each of the eaTof Thl^ "™^ '""" ''' ''''' '^ P^^ ^he debts o ^:l^''^''' -^? 'f '^^ assignment of each of invetthTr a' '^'"'^ '^' ^''^' ''' "°* «"ffi«'ent to nvest the respondents with a good title in such goods m the absence of fraud, I am at a loss to imaginfhot 389 11 4 ^m ERROR AND APPEAL REPORTS. a good transfer could be made. The parties to whom the goods were advanced remain still liable to Messrs. Kerr^ Brown, ^ Co., for their value, and it was optional with them to take the benefit of the assignment from the respondents, or to look to the original debtors for the amount of their debt. I think the judgment of the Court of Common Pleas must be aflSrmed, and the appeal dismissed with costs. The other members of the court concurring, appeal dismissed with costs. [Before the Hon. W. H. Draper, C. B., 0. J.; the Hon. P. M. Vankorcghnet, C; the Hon. W. B. Richards, C. J. 0. P.; tJie Hon. V. C. Spragge ; the Hon. Mr. Justice Hagarty; the Hon. Mr. Justice Morrison, and the Hon. Mr. Justice Adam Wilson.'] On an Appeal from the Court op Common Pleas. William McIntee, Appellant, AND John McCulloch, Respondent. Slander— Privileged communication — Malice. In actions for slander or libel it is the province of the judge to deter- mine whether the occasion of uttering the slanderous words, or writing the libellous matter complained of, was or not privileged, and if privileged, held, reversing the judgment of ihe court below,' that in the absence of evidence of malice, there is nothing to be left to the jury as to bona fides, or otherwise. This was an appeal from the jud^ ^ ont of the Court of Common Pleas in an action for slander, brought by the respondent against the appellant, refusing a rule to set aside a verdict rendered in favour of the plaintiff, and enter a nonsuit. BRBOIl AND APPB41 HEPORIS. 891 The ,vord8 for which the aetion is hrought, anj e.i ISM ZZ Hh" °' "r.'t'' "' '""^ -' tor,L'ZiZ ^ jn "^ "« absolute in form takinj? back a hnl^ p J l"'' °^ ^''"'' by a deed afterwards one of the sureties delivered 5;f ''"''*"''?• ^en days two other persons for about one half the If; " ^J^'^'^^y ""te of May of the following year T h^L .1.^* ".".'' ""«■•"«. and in -ureties desiring to bTrd.^eS'frL LhT.'''''-"' ^"^^ "°^ ^is between A. and B. that J should oonJ"^' •" ^'"' «"«"ged wh,chhad been so transffr'red to H- ^.•'"' " "^ *^" ^*"'''' accordinglydonebyan absSedeed ofr''*-'' '" ^■' ^^'<"^ ''« cancelled: i?. at the time Ji^ L L„^ ''°"'"'^'''°°«' "'''I the bond himself as follows: "RSd'f Mr ^ a memorandum signed by (enumeraMng them, part b ing cultWatfd t ^""f '•*"''" ■*« <'°"°^«." he sum of one hundred and Sv;il "''.''"i'" ''*"J») "f«r (this amount being the ori inal dlh, „ ^; ^ P°"°''^ ^^^ shillings;" the ,bove property I should hil ""^'^t^rest) •< should he wait Mr. A. J^c%Ll wJuld pay'me the "„t:«°° °' ?'^'"'' '' ''""k^f raents, viz.," (setting ou[ "^LJIT •'"■",'" '^''^^ '"^tal" mterest from tliis date." ^ ^as tZT- "'«"^''"«''ts,) .< „ith pation of the cultivated lands «n^, m possession and occu- ::lt 'T^'' .«°'' ^o continued 'until ml '1^''^'^ '' »"« proceedings in ejectment to obtain Sos,ession nf *^° i^" '°«'it«ted ? ^J^'ch action he obtained possession nie^o''®".'!"'^''''''^ ^^^^^. time (1849) other creditors ofThadoVliH*•^ ^''°"' ^''^ ^^^-e ion against him under which his interes in tni r?' ""^^ «««»- 1850, and purchased by £ through „n '^"se '"^nds was sold in (for the year 1849) entries wAr«/ ""> "8«nt- In the books of JS the amo1,ut from ^ 831 to 1849 it?^'"«^- ^''"^ '"'^^^^^^^^ amount of the promissory note receivfd brhTm^r' ^'f ?" ^°' '«•« 1 or account for it in any way in i8fio 1 A-n ^'"^ '^^ P'"'"'«ce «.,i,M. lh.d,ed 1. J(, iSbsIiilh .1,.°°''"'''" «i'M"»l»- p™....... of th, .„...„. 'Si "f irsf z*;!"" "»■"' "• 393 1864. 61 ^1 VOL. IT. 894 ERROR AND APPEAL REPORTS. 1S64, In 1831 a morlgnfre wng created by conveyance absolute in form, on s^^,^,.,^ eevernl lots of land, one of which was occupied and cultivated by MoD)nalona/., ho wrote anfaZ'o f "' ^^ "^"^^^^ in the worda following : ' ^'"'"^^^ "^ ^'"'ting fonlTij:^,^ f ?; i„^SfS ^^^^-^^^ '-^3 as No. 6 & 7, in the six /all in Mn '?".'^««'«"' ««8t half, half of 23. in the firs 'coi ^^^'j^V' P^ T'^ ""^'^ '^^' for the sum of one hun^r«,i °^ Charlottenbureh shillings ; shouirie 'nt tie"! "'"'^-^'^ P'^""^^-^' « 'e have no objection of g vin^ it tTj^n^^ ^ '^^'^^'^ would pay me the abfve "um in If/^^'.^' ^^'-'I^onell forty-two pounds one shiliin?amll; J! '"^^^''"ents, viz., day of July next, and Ses. T^* P^"«« «» the firs shilling and eight pence nex^-.n''^'''^^ P"""^« «"« forty-two pounds one shilHn^ ... f '^'T' ^"'^ ^"^^'-est: «'•'««««'• first day of September, 1832 ^t''^'^' ^'"''^ «» th« this date. ' ^' ^'^ bearing interest from Cornwall, 6th May, l^u^^ ^' McDonald. Witness. Signed' William Murchisox taving a» legal advice riZlff "^ ^ ™'^' ""^ sentation of thp pff«,.f »' , ^"^'^ "Pon his repre- ve^ance .0 U., cau3ed^.be'r;.:r*^,::,r °™- po«-.. or .b. o.L„ .a.d,:tr«iLed;':*b I ^^1 896 ERROR AND APPEAL REPORTS. 1864. McDoDkld T. HcDoDtU. possession, performing all the acts of ownership on the same until the year 1848, when Duncan McDonald brought an ejectment against plaintiff for the lands in Charlottenburgh, and having recovered judgment, enter- ed into possession of the said land in Janury, 1849, and had since continued in receipt of the rents and profits thereof: that about the same time an execution' was issued against the lands of plaintiff, at the suit of Scott, Tyre rf- Co., and tlio same was placed in the hands of the sheriff of the county where the lands were situated ; that Duncan McDonald thereupon procured a transfer of such judgment and execution, and caused all the lands of the plaintiff both in Charlottenburgh and Mountain to be advertised by the sheriff, and the same were exposed to sale in the year 1851, and Dun- can McDonald became the purchaser thereof, through his agent, one Archibald Macfarlane, for £285, being the amount remaining due upon the execution, the said , lands at the same time being well worth the sum of " £1,200. After the sale the sheriff executed a deed to Macfarlane, purporting to convey to him the equity of redemption of the plaintiff in the said lands ; and Mac- farlane afterwards executed a deed purporting to convey the same to Duncan McDonald, whose agent he had been in the matter of the purchase. The plaintiff submitted that by reason of the mortgage made by him to Duncan McDonald, having been absolute in form, the equity of redemption of plaintiff in the lands was not liable to seizure and sale under such execution, and that the deed of the sheriff was null and void, and Duncan McDonald took nothing thereunder. Further, that the sale was irregular and void, because the sheriff, instead of offer- ing the lands to competition in separate lots, put the same up in bulk, and for this reason the price realized was far less than might otherwise have been reasonably obtained therefor. The plaintiff, upon this statement of facts, asked the usual decree for redemption. ERROR AND APPEAL REPORTS. 897 1864. McDonald T. McDondi. The defendant Duncan Macdonald answered the bill, insisting that upon the change of the transactions, and on the tith day of May, 1831, when the deed of that date was executed, and the receipt of the same date was signed by him, the real transaction between him and the plaintiff ceased to bo a loan and security, and became a sale with liberty to plaintiff to rc-purchaso on the terras in the receipt mentioned. That before the Chancery Act was passed, in the year 1837, the time appointed for the liberty to re-purchase had expired, and the legal estate of defendant in the lands had become discharged from such liberty to re-purchase That the lands, other than the lot in Charlottenburgh* were wild lands, uncleared and unoccupied, and as to them he claimed that ho was protected by the Statute of Limitations: ho also claimed the benefit of the Dormant Equities Act, as a bar to the relief prayed. That even if the transaction should be considered a mortgage transaction, the same presents a case in which guument the court should, in the discretion given to it by the Chancery Act, refuse to decree redemption, considering the great lapse of time both before and since the pas- sing of the said act, the little value of the land at the time the transaction took place, the sales to other parties, and all the circumstances of the case. Amongst the evidence read at the hearing were the following copies of entries taken from the books of the defendant Duncan McDonald: 1st. An entry from his day-book or blotter, under date July 20th, 1848, as follows : . it' Arck'd McDonald, Front 18dl. To Mortgage Interest, 5th May, 1831. £126 5 12 7 126 17 7 3Si8 ERROR AND APPfiAL RUPORTB. 1884. /an* 7. By D. 0. ftu Honald 7 6 2 Aug. 4. Miirohiion , 4 4 01 T. M«DouU. Oct. '20. To oneflno comb Payable lat July, lit August, lit S«pt«mb«r. Ty Memorial and Registry To drawing and talcing affidavit!... Memorial and registry for Dundas... 2nd. From his ledger marked C. as follows : Arch'd. McDonald, Front. 1881. To mortgage £126 5 To interest, 5th May, 1831 12 7 StattmMt 11 10 11} 116 7^ 1 16 3 16 , ., T. ^ 126 17 7 Juno 7. By Duncan McDonald ... 7 6 2 By W. Murohiaon 4 9J 11 10 11} £116 6 7} 1 Oct. 20. To one fine comb Payable 1st July, 1st August, 1st September, Memorial and Registry in Gltiigarry. 16 " " in Dundas ... 16 1849. Writing and taking affidavit g 6 117 1 1} Mtroh 15. To int., 6th May, 1832, £7 6 ; to 83, 7 8 9} ; to 84, 7 17 9} : to 35, 8 6 8 to 86, 8 17 8 : to 87, 9 7 11: to 88, 9 15 3: lo 39, 10 llllj: to40, 1189}: to 41, 11 17 3: to 42, 12 4 «: to 43, 18 6 6}: to 44, H 2 6}: to 45, 11 14 6: to 46, 15 17 G}: to 47, 16 16 6} : to 48, 17 16 9 £198 1 9 By ledger D., page 24 198 1 9 And 3rd, from his ledger marked D., as foUoWb ; Archibald McDonald, Front. To ledger C 48 ^^4 10 '49. Ju.'Jv>,' Ca-i lar sheriff for dispossessing '< 2 10 ApU:; " T.jgerC 70 4 " •" ... • 143 198 1 9 UZ'i. Jane 26." Cash paid Com'r. 16s.; expenses, 58., April 28th, »48 10 HRROR AND APPBAL HEPORM. Jux'j. 6 " To ooits paid SBDdfleld, £80 12« 'jd • ooits about ' ' " Deed and Registry. Tlio nthcr evidence in the case bearinrr unon th« berl\rh:nrr(;° x:r ^^^^ -- ^^'-^ j„ . - ' '^P^offge, who pronounced a decree in favour of the nlaintifr ,?««! • i • ^^^ * to redeem, and dircctinethf « I"^ "" '""'"'^'^ thereon to be tak n tfo J ,, '''""*' consequential uo laKen before the master at Cornwall H,. honour, after e.ating tho fuots to the offeot a"."^ el forth eaymg, "Th. first ,„,„;„„ j,, „h„,h„ ;" .r.»sac.,o„ ». one of mortgage or wa, a at of and The great d.,proportion between the value of the land •.d the amount of tho debt i, one evidence of .^^1 o.ro„m..a„oe alluded to by Lord Ifottin^U^ it n^. like drcuZ "'" "f'r •" *" '""'•> "■•• »»" "ueh like eiroumatances might hav. made it a mortgage.' " Tho half lot in Charlottenburgh was tho plaintir. worth at that time at least £mo. If this was « n.,,. quarter of .ts value, but to throw in some 900 acre! ^e..des. Again, there is no evidence of a sale Trf •-.y treaty about one; what evidence there i, of what lor the debt. Then there wm a continued possession bv the plamfff, and that not only for the time agreed „Z or re-payment but up to im. There arfa 1T In^^ZtlnZT' '"°''- "''"«'"« '"^ PWntiff wilh ..Al flOf. UeDonm ^ ^ MoD^B»lI. '* (o) 8 Swan. 631, 40.0 1864. ERROR AND APPEAL REPORTS. The contemporaneous paper has apeculiar phraseology, but does not import a sale any more than a mere security. It was drawn by Duncan McDonald, a shrewd man of business, and taken by the plaintiff, an illiterate man, not of business habits. At most it is ambiguous, and it is not open to the man who drew it to place upon it a construction in his favour, when it may bear another construction, and which, too, is favoured by the surround- ing circumstances. I do not think these circumstances are outweighed by the fact of less land being conveyed to Duncan than had been conveyed to the sureties ; no explanation is given of it. It may have been because a note for ,£67 held by one of the sureties was given to Duncan on account of the debt. In 1849 the plaintiff was evicted from the Charlotten- burg farm, by ejectment, and in August. 1850, that and the other lands conveyed were sold at sheriff's sale, upon an execution by another creditor of the plaintiff, and purchased by Duncan, avowedly as the agent of one Macfarlane, to whom a deed was made by the sheriff, and who shortly afterwads conveyed to Duncan. The defendants Clarke, Black, Beggs and Ilgndeman, are purchasers from Duncan of different parcels of land in the township of Mountain. The defendants set up the 11th section of the Chancery Act of 1837, but I see nothing in the circumstances of the case, or the dealings of the parties between 1831 and 1837 to take the case out of the ordinary law of mortgagor and mortgagee. The Dor- mant Equities Act is also invoked, but cases of mort- gage arq not, I apprehend, within the act ; and this, in my opinion, was a mere case of mortgage. I do not think the sheriff's sale has altered the position of the parties. An apprehension was confessedly entertained that the plaintiff would at some time assert his right to redeem in this court; he had never abandoned, but always claimed it ; and shortly before the recovery of pos- session in ejectment a sum of money was tendered by ERROa AND APPEAL REPORTS. McDonald T. McDoneU. rr.~S': SIS" free from this claim, m i).«.a,, Jf.2>.na/^. I think he evidence shews all this; but even if it were not so the lands came again into the hands of nZlan and if rede ab^e before the sheriff. .,, wouldrr^af o ! would be, I think, ,n the terras upon which redemn tion ought to be decreed. i-" reaemp- It is urged that the right to redeem is barred as to These'f V" Mountain by the Statute of Limil t o„ These lands were m a wild state until after their sale by ^--^^- McDonald to the other defendants; there was, so far as appears, no actual possession, and posses- sion therefore will be deemed to be in the p rson h W , , ft le A mortgagee has a right to obtain possessionTu! remam m the mortgagor, as in fact it ordinarily does • and as It IS generally the desire and the interest of the' mortgagee that it should. I think, therefore, that I cln not ake the plaintiff to have been out of p'ossession of these lands so as to be barred by the statute. 1 think the evidence is not such as to affect them or sold to them without notice of the plaintiff's equity t! redeem would be bound to account I him for he vL of the lands or as is prayed in this case, for the purchase money received by him from the purchasers. I cannot but feel that the plaintiff's claim to redeem these lands is of very old dato.- and T hav T relrS-^^ give effect to stale demands, trth Ifh^ been in^this case no abandonment, no acquiescence, no VOL. II. 401 > - 402 BRROB AND APPSAL REPORTS. 1864. dealing to affect the plaintiff's equity, only lapse of time, "ry^ and that not of sufficient length to bar the right ; and McDoncu '' ^^"^ always, after ]837, in the power o( Duncan Mc Donald to foreclose if disposed to admit the equity. The decree must be to redeem, but, under the circum- stances, Duncan McDonald should be allowed to apply the rents and profits, or occupation rents of the Char- lottenburgh farm, in the first place, to pay off all arrears of interest, not confining him to six years ; and as was directed in Bullen v. Benwick, (a) upon re-hearing, he should be allowed for uU improvements, and should be charged only for occupation rent or such rents and profits as he received, not for what he might have received; and I do not think it a case in which the account should Ijo taken against him with rests, and he should also bo allowed the amount for which the lands were sold at sheriff's sale, with interest. As to costs, he should pay all the costs but those of an ordinary redemption suit, and those costs should not be excepted if the amount tendered in 1848 was the whole amount then due. The plaintiff must pay Clarke, Black, Begga and Hyndeman their costs, and have them over against Duncan McDonald ; the costs of Allan McDon- ald to be as is usual in the case of a subsequent incum- brancer. From the decree then pronounced the defendant appealed, and on the appeal coming on for argument, Mr. Blake (Mr. Wella with him) for the appellant. Before the passing of the Chancery Act, a creditor, when arranging with his debtor, would have been much more likely to take a deed with a right of re-purchase than a mortgage ; the absence of any equitable jurisdic- tion in which a mortgagee could enforce his rights, causing such difficulties in the way of his. realizing any security he might holdj as to render it peculiarly desir- able thftt he should place himself in as secure a position {a) 9 Qr. 202. ERROR AND APPBAL RBPORTS. 403 a creditor did accept a mortgage, he would, at the same ^-"v— Davlnr f !." ^"^''' «'"'"« * °°^«°*"' ««°""»g the """r"'^ payment of the amount intended to be secured: hero no "°'^°*"- covenant , as given. At the same time mortgagor "e" n no better position ; they could not redeem^ their only course was, m the event of ejectment being brought to tay proceedings by payment of the amou'nt appTaHng due If the mortgagee obtained possession of the pro perty there was no remedy for the mortgagor. The he only injury to the debtor was that it bound him to punctuahty in his payments. The words of Z to thTf!^ :'' !"'" "' ^^"^'^•^^ *^-« disadvantag Jor 1? . T"'' '"'^ '^' P"°«'P'« "°^ «o"tended SmytH. (a) He also contended that the disproportion uch as t. raise a presumption in favour of the claim set up by the respondent; true, the lands were much more va uable than the price agreed to be paid but that ' ' may easily be accounted for by the fact that the vendor had the right of re-purchase. He relied, also, upon the great lapse of time ^nearlv hiny years) from the giving of the deed untH h fiS of the bill as evidencing a knowledge on the part of hf preCs "' '"'^'' ''' re-purchasing the If, however, the court should be of opinion that this transaction was one of mortgage, and not a sal d tha the eleventh section of the Chancery Act is inpli- cab^, then the sheriff's sale is a strong reason wh/ln 1^ discretion, the court should refuse relief; refeSL Stanton v. MoKinlav. (h) TTn ..li'-d ', ^'^"""^ *° Dorman Equities Act. and the Statute of Ltaitation this bm '' a e„„p,ete bar to tbo olaim set „p "^i (0) Ante Tol. i, p. 1. (6) Aitt« Tol. i, p, 266. m 1864. McDonald V. UeDonell. ERROR. AND APPEAL REPORTS. Mr. Mowat, Q. C, (Mr. McLennan with him,) for the respondents. A reference to any registry office in the country will shew that before the passing of the Chancery Act mortgages were of just as frequent occurrence as they have been since. Sales with the right of re-purchase were almost unknown in practice, at all events, they were quite as little resorted to then by creditors as they have been since the act. The statute, 7 Geo. II., under which alone it is said the mortgagor could obtain relief, applies only to cases where there is no dispute as to the fact of mortgage, and the defendant's right to redeem, or as to the amount mentioned in the mortgage deed being iue whole debt secured. The entries taken from the books of the appellant, he contended, were of themselves sufficient to establish the right to redeem, even in the absence of any written memorandum or agreement ; but with the writing set forth in the bill, they are conclusive proofs that the original transaction between the parties was one of mortgage, and not a sale with the right of re-purchase. In those entries it is called " mortgage," and interest is charged up to 1848-9, and certain small credits are given on account. At to the evidence of value, it was shewn to be at least four times that of the sum secured, even if the note given by Murchison to McDonald were excluded. Besides that, a sale with a right of re-purchase has always been regarded with suspicion. Bulwer v. Astley. (a) It is not shown here that there was any treaty whatever for a sale., neither was there any discus- sion as to price. Another ground, sufficient of itself to warrant the court in granting the relief, was the fact that no profes- ~ (a) 1 Phill. 422. ~~ ERKOE AND APPEAL RBPORn. 405 sional adviser intervened between the parties- the I8fi4 r T ^ °^ re-purchase there would nnf ;« f ! lo.g before .he?Llof^lf;alo'^''°"""' """"^ '^O'"" Mr. ^^a^e, in reply. "^ "• ■*^'"*' W «■■« abo referred to by counsel. MoLeak, Ex-C. ,t. President, thouaht that f„, _^^^^f;;_^-J2^ "•" I"™ 'We «» bring myself 1 'm M 8 East, 671. (c)3Ad " - >) («) 5 A (y) IP &E11 &.561. W, 294. 67. (*) 5 U. C. Q. B. 96. (rf) 3 Exi!h. 219. (/) 18 U. C. Q. B. 575 W8P.W.368. 406 ERROR AND APPEAL REPORTS. 1864. McDonald T. MoDonell. to the conclusion that in the intention and contemplation of either the plaintiff or defendant the transaction of the 6th of May, 1831, was a mortgage. The marked difference between the transaction of the preceding year and the one now in question influences my mind strongly on this point, and as to the evidence I can- not rest with any degree of confidence on the recollection of witnesses as to transactions which happened thirty years before they gave their evidence, and whose interest in the transaction ceased at that time : I allude to Base and Murchison^ the only two persons except the plaintiff himself who give any account of what preceded and accompanied the execution of the deed and agreement of May, 1831. I must rely mainly on what is written of the facts. ' In April, 1830, the plaintiff made an absolute convey- ance to Rose and Murchiaon, to indemnify them Judgment for having become his sureties to the defendant, and he took back a bond expressly conditioned for a recon- veyance, when they should be freed from liability, or re-paid :f they had to advance money for him. But in this transaction he conveys absolutely, and takes back a writing by which defendant says, "should he" (the plaintiff) " want the above property, I have no objection of giving it back if Mr. A. McDonell" (the plaintiff) "would pay me the above sum" (£126 5s. Od.) "in three instalments." T^e phraseology is, as has been well remarked, peculiar, but contrasted with the language of the bond taken from Rose and Murehison that they " will re-convey " to plaintiff " his heirs and assigns for ever" the two thousand acres of land specified, it leads strongly to the inference that in the latter transac- tion a re-sale was contemplated. In Thornborough v. Baker, the case of ^Sif. John V. Wareham is cited, in which the defendant, for £3,000, conveyed the land to Sir R. Cfrobham and his heirs. He made a lease to Wareham^ rendering to him and his r^i^ BBHOR AND APPEAL REPORTS. McDontld T. UeDonell. beir. X280 p„ .„„„„, „„j n„ ,„„^^ years, mth „.„.>,, p<,„ jislrc^a.J da„,e of LZ -ig-, .nd pay the^ AOottn 'he ISX "f ..sure to JTarMam. The conn iTJ tC '"^ '° tl.e heir of Sir n. aroUa„, .„d „oT fth, Itti^'h'" executor, "andiustlv fnr ♦»,;« '" »"e Plaintiff, his -W, b».ofCi^ .f^xj";;^--' -- of . could ,not turn i^ *r. I^"rcnase, lor the proviso eonaterar.;rj:tt;h-n!rwar„:^^^^ equity." But Lord Nottingham Tdds "if th/ f '" money had not been near the ZmTuJ^ 1 ^u''^""" There is u great resemblance between the f.Z T.i present case, and those of St. jX v W T *^' the application of it as governing tL; '"':' '""^ on the existence of Z^ZV^ZZ^IT 'T' agreement (the language of which impoL "fe "c,- "; "'"'"' a mortgage only. In considering these '^^l'^ borne in mind chat to secure the' ure S i 1830 1' plaintiff conveyed three hundred acre L Cha.l ^ ' burg, four hundred acres in kZI ^^»^Jo«en- bundred acres in Mounta" l^TL Zt T''T conveyed one hundred acre irCharL ^ ' ^' hundred in Mountain, anTaccorl'^^^^^^^^ '"^ °'°« ment defendant was 'to ^112?!^'^^^^^^^^^^ interest, by three instalments the l«f/r ^-'ul^^'* ""'^^ the i., of April 183lTf.^i I J °^ ''^'<''' ^«" <^"e on agreed totec iU Jm ^^^^^ thedefendant other. Tt.SretifrvXrfZ'ilt'''' ' ''"" »itb the sum that WM dM.„rf .. ""' " """Pwed mi^ »^e i, jxtd.: ";:tif ■"°'"'' "" 407 408 ERROR AND APPEAL REPORTS. I«fi4. HcDonaM T. SfcDoncll. As to the first, there are some considerations, though not forming part of the evidence, which I cannot over- look or reject. There was but little money in circulation in 1831, we had but one bank of issue in Upper Canada; land, speaking generally, was notsaleable excepton credit, and that extending over years, and people in mercan- tile business would not willingly tie up their capital in land, and therefore if compelled to do so drove rs good a bargain as they could. The great influx of emigration was only then beginning, and tor a long time it did not consist of a class who were purchasers of land. Now not a single witness speaks of the value of this land in 1831. There is but one, John Rose, who goes back .-3 far as 1839, at which date he values the hundred acres in Charlottenburg at ^6500, and this value he arrives at from the fact that a similar quantity of land near thi& sold in 1839 for £400, and he thinks this worth £100 more ; what the terms of that sale were as to credit we Judgment. ^° ^°^ know : but his co-surety Murchison says " the plaintiff's lot in Charlottenburg" (the 100 acres in question I suppose) "is now worth from £500 to £600 ; I would give that for it." That is in the latter part of 1860 or in 1861 ; other witnesses rate the present value far higher, it is true, but no one but Rose goes farther back than 1849 : I cannot treat this as sufficient testi- mony of disproportion between the value of this land in 1831 and the price paid by defendant, under the circumstances, to make this a mortgage. As to the lands in Mountain they do not appear to have been estimated at a higher value than the wild land tax accruing on them. The evidence of the treasurer of the district renders further remarks unnecessary upon them.* i The entries in the defendant's own books present a more doubtful question : not one of them appears to have been made before July, 1848. It seems to have * This witness stated that at the sales in 1830 and 1831 frequently the whole lot was sold for the taxes— X3 53. Od. on each 200 acres— seldom only half the lot, and that a large portion never was redeemed. ERROR AND APPEAL REPORTS. 400 been in that yoar that the defendant brought efectment 18«4 was-!thn„r . * ^^''^ ^'^^ transaction of 1831 was~though never so intended or understoml h^ w statement of his claims as a hollr V ^' °"* '^ cnapter 7d, § 1, he purchased the right whi^h Hf^.f i had acquired under a sheriff's sale on •^'''' thereby united this *»«ii;fv «i> j . ^^* "® estate 'whioh he idyhfd '''°""'°'' '° '"^ "«*' re-sell to the nlainfiff T ' defendant's part to 10 tne plaintiff, and opposed to them is /ha «i, sence of any covenant on the plaintiff's Z to *!v VOL. II. 410 EBROE AND APPEAL REPORTS. 1864. Judgment. But the bill charges that defendant " is an uncom- monly shrewd man of business." I should not have deemed this allegation worthy of notice, if I had not found it alluded to in the judgment in connexion with the state- ment that the agreement of May, 1831, was written by him. The only evidence on the subject is that givon by the Hon. J. Sandficld Macdonald, who, speaking of the defendant, says, "he is a shrewd man and has had much experience." This expression is treated as reflecting back upon a transaction about thirty years^old, and as casting a cloud upon the defendant's share in it, as the plaintiff was and is confessedly an illiterate man. Ex- cept these few words there is nothing in the evidence bearing on the defendant's shrewdness. But how is it displayed in this transaction ? Is it in designing to draw an instrument by which he simply agreed to re-scU land just conveyed to him, on being paid the price named within a fixed time, and instead thereof writing that which the Court of Chancery have hdu to bo a mortgage ? It is not I presume questioned that the de- fendant intended only to bind himself to a re-sale, and not to convert the deed he had into a mortgage. Now if the parties had changed places, and it was the defend- ant who sought to redeem, founding his claim on the latent meaning of the writing, there would have been ground for thinking it the act of an "uncommonly shrewd man," which if such had been the case, might have been rendered justly into the words, " a designing knave," but all that the defendant's shrewdness has effected, as the case stands, is to enable the plaintiff to set up a claim which I firmly believe never entered the mind of either plaintiff or defendant when the deed and writing passed between them, and which but for the judgment appealed against, I should on this evidence have unhesitatingly said had no existence. Then .an argument in support of the contention that a mortgage was created, is built upon the fact that the plaintiff was left in unmolested occupation of the Wm J ERROR AND APPEAL REPORTS. 41t land from May, 1831, until the ejectment was brought 1864. m.1848 during all whicl. ti.nc defendant did nothing, ^-v— ' neither demanding principal nor interest, nor rent nor """r"' possession. What wag the plaintiff about all this time ? "'''""'•"• lie neither paid nor offevod to pay any thing ; hut if he could have held or three years or so longer on the same footing, the Statute of Limitations which was running in his favour would have barred the defendant's recovery It may be said that as mortgagor he might well remain in possession, but not as vendor. True as regards a mort- gage drawn in the usual form, entitling the mortgagor to hold until default, but there is nothing in this writing to entitle him to an hour's possession in one character more than the other, and in cither the Statute of Limi- tations would begin to run in his favour on the same day: whether as purchaser or mortgagee the defendant had the right to immediate possession under the deed and the writing did not qualify or limit that right. It is no part of the plaintiff's case that the writing "'""'°''°'' does not contain what the parties intended. The con- tention is that as it stands it constitutes a mortga-re. In my opinion, reading it alone, it is plainly an a-ree- raent for sale, and I do not think that there are circum- stances shewn sufficient to convert it into a mortgage. But oven if I arrived at the conclusion that this was a - mortgage I should not look upon this as a proper case for decreeing redemption. I look upon the lapse of time as a strong reason in the defendant's favour. The estate became absolute in law on the 1st September, 1832, the defendant got possession in 1848 or 1849. The phiin tiff's equity of redemption was sold, or rather was sup- posed to have been sold, under aji.fa. against lands in 1850, and this suit to redeem is not begun until April, I860 ; moreover, but for the peculiar manner in which the equity of redemption is created, I presun^e the sheriff s sale would have passed it:-I mean if it had been created by an ordinary mortgage, and then if the ^2 ERROR AND APPEAL REPORTS. 18(A. McDonald MeSoMll. defendant had acquired it, and as a consequence of his being the mortgagee, if instead of the equity of redemp- tion being merged by its vesting in the owner of the legal estate, it revived in favour of the plaintiff, I should not the less think this under all the circumstances a case falling within the 11th section of tho Chancery Act, and as one in which a redemption should not be decreed. But even if the decree as to redemption can be other- wise supported I cannot concur in what is said as to the land in Mountain. i Whether the deed of 6th May, 1831, be an absolute conveyance or a conveyance by way of mortgage it passed the legal estate in the 900 acres in Mountain. These lands were then, and for many years afterwards, unoccupied and in a state of nature. I have hitherto Jadimtnt Supposed that the legal title draws to it in contemplation of law the possession — if in fact the lands be unoccupied — and that it was on this ground that the party having the legal title could maintain trespass, though in actual fact he did not occupy them, and they were wholly un- cultivated and unimproved. I concede that if the plaintiff, as mortgagor, had con- tinued in actual possession of these lands, no inference could have arisen from the defendant's having the legal estate that he was in possession also. On the contrary, if by the terms of the mortgage the mortgagor had a right to remain and did remain in possession, the mort- gagee could not lawfully enter on him, and if without any such right the mortgagor continued in actual pos- session, doing nothing which amounted in law to a recognition of the mortgagee's title, the lapse of twenty years would bar the mortgagee's right of entry. But I cannot agree that where the mortgaged lands are wholly vacant both before and after the mortgage, the mortga- gee loses his right of entry because for twenty years '1 418 1864. McDnnkld T. M«Doo«l|, IRROR AND APPEAL REPORTS. after he acquired tKo legal estate he did not enter into thl7L rTT "' r'''''' '^"^ «^*« '^ °>vner8hip on the knd. So long us he has the legal estate an.l no other person enters or exercises acts of ownership on the Ulo 1 1 T'T"" ? '''° 'y' '^ *''« ^'^^ '« with the title, and though such title was originally acquired by an unequivocal mortgage which became absolute at law by the mortgagor's default ; though the lapse of twenty nothing having been done in the interval by any one ) .t^ <3ouId not affect the mortgagee's right as absdu^^ n,i,^!.'^'-.?°'" ^ *^'"^^' *'"^ ^"^ «»>°"1^ ^''^ve been dis- belIw™t"T/' ^-''>^' '^' ^--« °f *^e court ...... . Deiow right. If what is shewn to have taken place in his case had all occurred since 1837, no douBt u 3 We been entertained by any one as t^ the right o the mortgagor to succeed. Had the mortgagee here taken possession of the property, and used it af hi own H woud have been different : but he allowed everv thin!/n as before until 1848-9, at wl JlfrZctt' "^ h d been in existence twelve or thirteen years during r ghts of the mortgagor had he chosen to admit his nght to redeem Under all the circumstances hi" or ship thought the decree ought to be affirmed and th« appeal dismissed with costs. ' *^^ Richards, C. J., agreed in the views expressed hv his Lordship the Chief Justice of the Quien's pl ^ that the appeal should be allowed, and t e bi 1 1 tt court bplnw ri.-am.-cop,! -.-.I. . . ' '® "'" 'n the — 'lijoeu wita costs. B>™, V. C-I a„ s>tkM that thi. ,as . „or.- I ■J 414 18fi4. ERROR AND APPEAL REPORTS. gage, and that the decree of the court below was right ' and ought to be affirmed, so far as it declared it to be 80. Supposing it to be a mortgage the Statute of Limi- tations has no application, for the appellant did not take possession of the lot in Charlottenburg until 1849, and of the lands in Mountain he did not take possession at all. No case whatever is shewn under the Chancery Act, in fact nothing has occurred in this case but what might probably have occurred had a Court of Chancery always existed, and what' might reasonably occur in England. The mortgagee has sold some of the Moun- tain lands ; this should have no effect as to redemption of the remainder, and should not prevent him from being accountable for the proceeds of the lands sold, sold, too, long after the establishment of the court. Of the lot in Charlottenburg the mortgagee took possession in 1849, by means of an action of ejectment. This circumstance occurs every day every where, and the mortgagee is of Judgment course accountable for the rents, and the proceedings could not have been stayed in the action by a tender of the money,' as we must intend that the equity of redemption was disputed. The statute of 18 Victoria, chapter 124, commonly called the Dormant Equities Act, seems to mo to have no application to this case. It is true that the legal title of the defendant was -complete, and the equitable title of the plaintiff existed before the passing of the 7 William 4th, chapter 2, the original Chancery Act, but this equitable title was recognised by the defendant to a late period by the personal occupation of the lands in Charlottenburg without the payment of any rent until 1848 ; which extends in its effect to all the lands, by the accounts in the defendant's books, and by the sale and purchase of the equity of redemption in 1850. Then it has been decided that the act does not apply to mortga- ges framed with a proviso for redemption ; and it appears to me that for the same reason it ought not to apply to mortgages made by means of absolute conveyances, or by means of absolute conveyances accompanied by a bond or memorandum of agreement for redemption. Cases ERROR AND APPEAL REPORTS. of the two latter classes may call for discussion and debate and give rise to difficult questions, but the 18th Victoria, chapter 124, was not passed in order to exclude such discussions, but in order to quiet titles. The discus- sion will terminate in establishing either that the trans- action was not a mortgage, in which case the suit must tail, or m establishing that it was a mortgage; and this fact once established it is unnecessary to apply the pro- visions of the 18 Victoria to the case, because the 11th clause of the 7 William 4th, chapter 2, is amply sufficient to secure the ends of justice. I think, therefore, that for all these reasons the decree ought to be affirmed with costs. Morrison, J., concurred with his lordship the Chief Justice of the Queen's Bench. ^ A. Wilson, J., thought the decree of the court below right, and that the appeal should be dismissed with costs. Per CMmm.— Appeal dismissed with costs. [Draper and Richards, C. JJ., and Morrimi, J. dissenting.] 415 1864. McDonald T. McDonall. Judgment. On ArpEAL from the Court of Common Pleas. McGuppiN V. Ryall. Pleading— Judgment non obstante veredicto. In an action by a principal against Lis agent, for nedect in in„.,.i„„ .W "^"ZT ^" ''''^ °' ^'"'"'^ '" «"«'' "^ manner iS a oss occu^^ ng. the insurance company, on being sued for the anion nf!f ng the judgment of the court below, that the traverse of Varuafn" the declaration was an immaterial traverse, and that nlaint?fft" entitled to judgment «o«o6,<««<«r,.rerf,Wo ^ "'""* ^" This was an appeal from the judgment of the court Of Common Pleas, as reported in the reports of that 41« ERROR AND APPEAL REPORTS. 1884. MeOuffln ▼. Stotement. court, volume xiii., page 115, where the pleadings are fully set out. From that judgment the plaintiff appealed on the following, amongst other grounds : That there is error in law, in this, that the issues raised by the first and fifth pleas are immaterial, and although found for the defendant by the jury, judgment thereon, notwithstanding such finding, ought to have been given for the plaintiff. Mr. McMichael, for the appellant, referred to Stephen on Pleading, 89; Couling v. Coxc, (a) Down v. Hatcher, {b) Mr. J. H. Cameron, Q. C, for respondent. Every defence which was open to the company in the action brought against them is open to the agent, no matter how negligent the agent may have been in the mode of transacting the business of the principal. Judgment non obstante cannot be given here ; it can be given only when the cause of action is confessed, and the issue found for the defendant is immaterial. Here it is shewn the plaintiff authorised the defendant to effect an insurance on his goods, valued at $3,000, which was more than the goods were worth, and for that reason the plaintiff had failed in his action brought against the company. He referred to Phillips on Insurance, chapter 29, section 2172 ; Hughes on Insurance, page 98 ; Cooper V. Blick. (c) Vankoughnet, C.*— It seems to me that the first and fifth pleas raise immaterial issues. The declaration charges negligence generally in insuring the goods, not any specific act of negligence. It does not allege that plaintiff instructed defendant to insure as at a value of $3,000, nor that the defendant did so insure, nor (a) 6 C. E. 708 (b) (c) i2 Q. B. 915. *Drafbb, C. J., gave no judgment, 10 Ad. & Ell. 121. 417 ERROR AND APPEAL REPORTS. that ho made any representation of value to the insur- ance company. How, then, can the plaintiff's statement of value be material? and if it could, plaintiff avers that defendant had knowledge of this value. Richards, C. J., remained of the same opinion as expressed by him in the court below. ESTEN, V. C— It would seem that the tenth plea is an answer to the whole declaration, because, being found for the defendant, it shews that the statement that the stock was of the value of ^3,000, which caused the failure of the action, was made with the authority and sanction of the plaintiff. But it would seem that the third count, and the pleas to it, are withdrawn from consideration; and on the first and second counts, and the pleas to them, the state of facts appears to be that the defendant was employed by the plaintiff to effect the insur- ance in question ; that the policy became void through the carelessness, negligence, and improper conduct 'of J<"i8««t. the defendant, and that the plaintiff had not a stock of the value of $3,000 at the time of effecting the insurance : it no where appears what the instructions of the plaintiff to the defendant were, and it being consistent with all that appears that he might have instructed the defendant to insure in the proper amount, and that the defendant improperly insured in the amount of $3,000, the value seems to me immaterial, and I think the plaintiff is entitled to enter judgment non obstante, supposing the third count, and the pleas to it, wholly excluded from view. Hagarty, J.— It seems to me that on the face of the declaration the allegation of the value of plaintiff's stock is not traversable as a material averment. The defendant could readily make it material by aver- ring that plaintiff represented the value to be as alleged, $3,000 ; that such>lIegation was^ .untrue, and that ^hereby the insurance effected on its faith became'void * *^ VOL. 11. n 418 1^. J«4frment. ERROR AND APPEAL REPORTS. It fij one thing to hold all statements of value in insur- ance negociations to be material, and another to hold them material and traversable in an action framed as in this case. The gist of the charge is negligently effecting an insurance. I do not think plaintiff could be required to prove the value to be as laid in his declaration. Ho could recover, I think, on this count on proof of a value of stock of $500 if the rest of the count could be proved, viz., that such value was lost by defendant's neglect in effecting the insurance. Adam Wilson, J.— The question is, whether this is a good issue? I think it is; the plaintiff has bound himself to the allegation that he had in his store stock in trade and effects to the value of $3,000 ; the whole frame of his declaration has n^ade what might have been an immaterial matter a very material fact. See Colbourne v. StocMale, (a) Ohitty on Pleading, volume i., page 326, (6th ed.) If the plaintiff had complained of the defendant for not insuring for a suflScient sum in proportion to the $3,000, or for insuring for too much in proportion to it, the sum of $3,000 would have been a material and precise statement. But although it might have been made material in this view, it does not appear that any thing has been founded upon it which has made it material; the plaintiff does not complain of any neglect whatever in connexion with the amount ; he does not shew that the value of the goods has any thing whatever to do with the wrongful act charged. Because of its perfect immateriality, I thint that the plaintiff was and is entitled to judgment non obstante veredicto. Ter Our/tiw.— 'Appeal allowed, and the ritle to enter judgment for the plaintiff non obstante veredicto to be made absolute. (a) Strange, 498. BRROR AND APPEAL REPORTS. On AR Appkal from a D«oree of thb Court oj Chakckw. Charles Black, John Black, William Vader and ms WIPE n^RVi"^^^"^ ^- P-- - "m^r? *n» ^^^E' ^-LLtN Regan an infant, by John Hfc TOR, HER GuARMAN, AmOS VaNLEKK and M ARafRET ^NN HIS WIFE John Fowler and Willum Fowler John Black Fowler and Ellen Fowler^ inXs' BY John Hector their guardian, '^^^ants, Appellants, and ' William Black, Respondent. Agrement todevise-Specifio performance -Pari performance-PraHir. -Appeal by several defendants v,h.n oneJteZ7ed"'' reside with, and take Tr^of he'ffir ju nThi r/"'''"'"^'*"^ son to give him the farm upon whiX be3ithli?' P''°'"'«?f.«be and the son subsequently removed with^i f f ^ """^ residing, the father. After reraainin<^^-n tl A I ^"T^^ *° ""eside with Wife and famirdurTnThis^ "mnortrrfJ"' ^ "'«««"'» house of the father in conseaueZn^^i'"''"""' """"'^d f"-*"" •>•« before the son retui^ned t^f:", er Ji'r^irZf ^^'li 'l""' «"<* father had made a will devising he property b'taftS'^ 'J"V^' trace of any will could be discovererl nnr L o ?. ^ '"' '**''"' "«> account given of it A witness ,otbeaii„i 'm* ""^ satisfactory its execution by the tfsti or but i JH'^.^ T'" «"'« *^''^«"«« "f been a second wi ness to h nor w" ? ""' ' "''" ''''»' there had these circumsta^;r.ivi;vrsi::nh?dere^7ti:t^^^^ rcat^of tre'sSt:"ofri"^ ^-^^^^^^^^^^^ Where defendants appealed jointly, and the court thoueht that „ii <• them except one were entitled to be relieved from the deorp«»' I had been pronounced in the court below the com t - V"?^ decree, notwithstandlne that as to onrnf rh'« n ' ""e^ersed the was sufiicient to e^tablfsKe^m unde'r ihlT^S^nlaiJ iVf-^"*'! to be entitled to the estate in question. P'aintiflF claimed n\B waa an appeal from the decree of the Court of Ghancery in a cause wherein the respondent was plain- tiffand the appellants were defendants. The facts giving rise to the case appear sufficiently in the report thereof in the ixth. volume of the reports of that court, page 403= reports Jrom the decree there pronounced the defendants ap. m 1804. . ,t* 420 ERROR AND APPEAL REPORTS. je64^ Mr. Hector, Q. C, for the appellants, ot her than ^;^ Charles and John Black, and Mr. 0. S. Patterson, for Bil'ck. ^' ^ '^' ^^<^<^h contended that the decree ought to be reversed on the following, amongst other grounds : That there was no sufficient or binding agreement within the Statute of Frauds between the plaintiff and his late father: that there was no part performance of the alleged agreement sufficient to take the same out of the Statute of Frauds : that the alleged agreement was with- out consideration and voluntary, and was in fact can- celled by the late John Black in his life-time ; that such agreement was not such as a court of equity would en- force, and that there was no proof of the due execution of the will by the lata John Black. Mr. Strong, Q. C, for the respondents, contended that the decree appealed from was right and ought to be affirmed on the following amongst other grounds : that >rgmn.nt ^^^ agreement proved between the respondent and his father was founded on a good and valuable consideration, and that sufficient acts of part performance were shewn to take the case out of the Statute of Frauds ; that the agreement was such that it ought to be specifically per- formed by a court of equity, and the respondent there- fore was entitled to the relief given him by the decree : also that there was sufficient proof of the due execution of the will of the father in the pleadings mentioned. Loffus V. Maw, (a) and Fry, on Specific Performance, sec. 140, were cited to show that the court will specific- ally perform an agreement such as is shewn in this case. Had the agreement been reduced to writing no doubt can exist that the court would have compelled a specific performance of it ; the facts which are shewn constitute a good consideration for such an agreement, and the acts, of part performance are amplv sufficient to remove all obj ections under the statute. No one on read- Co) a GifF. 592. "~ ~ r ERROR AND APPEAL REPORTS. 421 ) V ing the evidence in this case, can doubt that a will was 1864 actually „,ade by the father, and in that case ZffuTv ' Ma.; shews that the testator, after having by hisTrolt ses and representations in .uced the responden^t to change his position, was not at liberty to alter or vary such will m other words, the will, under the circumsfances was' irrevocable. He referred also to Lester v. FoZln (Z and te cases there cited: Notes of Cases, tlS -[^ cl in ^ -* ''r^'l^ '^'^^"S '^' jurisdiction of the court m a case like this. In addition to the cases cited in the court below counsel re Wd to and commented on Montague vMax- well ic) Money v. Jordan, (d) Mundy vJolUmZ) n[ f- '• J^^'^^P'"''^ CO Whahy V. Bagnel U) Welch WhI JT " ^''^,^^^«^« ^^'-W, W Clark V. fright (n) Frame v. Dawson, {o) Webster v. Webster ip) Pnce V. Salnsbury, (g) Stump v. Gaby, (r) ' Draper, C. J., stated that so far as the claim of the respondent to the relief asked rested upon the fact of ^"^— *' part per ormance, he thought the evidence failed to e tabhsh the case stated in the bill ; and this ground alone was sufficient to preclude him from obtaining the r Tef asked. It was true that the facts that were p^roved „ dered he case one of such a peculiar nature that it f n/1 1??' ^r"^ *° "'•^"^ *^^* ^^'"^"ing the res- pondent had partly performed the parol agrefment by going with his family to reside with, and alend to the (a) 1 Wh. & Tud. 625. (c) 1 P. W. 618. (e) 5 M. & C. at 177. (9) 3 Br, C. C. 400. (•') 1 Br. P. C. 346. (A) 9 Mooro P. C. 131 (m) 5 Gr. Ch. R. 659. (0) 14 Ves. 886. (i?)9Jur. N.S. 888. (b) 9 Jur. N. S. 1267. (rf) 16 Beav. 372. {/)2Phil. 640.) («)2Gox 271/ (J ) 1 Moore P. C. 299 (/) 3 Qr. Ch. R. 513. " \n) 1 Atk. 12. IP) 8 Jur. N. S. 655. r) 2 D. M. & O. 624. (' m SRROR AND APPEAL REPORTS. 1864. care of, the lather, it must be taken that he had receded from, and abandoned the agreement, having left the homestead and the charge and care of his father in vio- lation of that which was to constitute, on his part, the sole consideration for the devise of the estate to him. On the other hand his lordship thought the weight of evidence, as regarded the alleged destruction by the father of the will (assuming a will duly executed) was greatly in favour of the respondent, and if the case had turned simply upon the question, whether the will had or had not been destroyed by the testator, the decision must have been in favour of the respondent. The relief granted however was founded entirely on fbe fact of part perfor- mance, which the respondent faileu in establishing, and therefore the decree which had been pronounced must be reversed, and the bill ih the court below dismissed with costs. juamoeat ^° ^^^ ®' Charles Black was concerned his lordship thought there was no good reason for saying that the evidence was not sufficient to shew a will properly execu- ted and unrevoked by the testator : but that, as against the other appellants, he had been unable to arrive at the same conclusion. EsTEN, V. C. — The will is not proved to have been duly executed. The mere declaration of the testatoi^ that he had willed the homestead to William doeu not prove the due execution of the will, and the evidence is wholly insufficient, although it appears that the fact could be proved by the evidence of Stevenson, for which purpose an opportunity might be afforded if necessary and expedient. But there is strong reason to think that the will was destroyed. The old man stated the fact to many persons : the defendants assert the fact in their answers ; the will was not produced, although every oppor- tunity existed for enforcing its production, and Charles Black, who is charged with its suppression, has been under examination. If however the plaintiff thinks it ERROR AND APPBAt REPORTS. of the plaintiff would depend l.„,^ ""^ ""'"«'" promise, and he would InJ^-T. " '•»?'•«»«»"'«<'» or will had ever been mad. T,'," '\""°' P"'"-"" «» 'f »» « ..w. .to^tiffr^I; r etfrlll-r '^"'5"' •nd to ask that he maj be »laced !„,? '° """"^ « if the will had not been revoked it ""^ """"i™ be.he,.u,e.?ifth;plaintiffre::slnXf:S^^^^^^ Lp\iffrii-r;:::;-,-xr£;: .0 the'Sd"' "°'il '""'•^'■•^ "•'..".endirp Iby to the old man and performini his Dart of ,, f °°™y -t : on the Sunday he depfrrwft'hhe Z^^ of the old man, but on .he understanding, I ZTZ ^^d attend to h,m properly during William; absence Wtttrnm does not return during the old m.n'« lif! ,• T:f "rr """•'' ™''"»o° boTat'e ::; the wife on the Monday deserts the old man tak in,/,.?,!, • iTdT'^ '"» .-' °f "■» ehildren Tt 'a „' hrb!' and !h S r"°« ^ ■'"■°' <■" *™« ■"■'■"•'» Previouf and when asked to return, or lo permit at le ^.^""1' to return, refuses. The visit of the bov and „• T/^ Tuesday till Wednesday seems immateri. |bi t?," return, indeed on Saturday, busierheretf Itt tS hou^e, stay, over night and prepare, breakfast on sl'; 4SS ■ I'M 424 BRROR AND APPEAL REPORTS. Black Black 1864. morning, but the old man is angry, speaks harshly to her; appears not to like to see her in the house, so that Charles advises her to leave the room or the house, and she does leave the house and goes to 31r. Gilbert's on the Sunday. I do not think that this desertion was condoned, and think that as the plaintiff must be respon- sible for the acts of his agents, and considering the large proportion which it bears to the whole time and opportunity afforded for performing his part of the arrangement, it disentitles him to the relief which he seeks. On the ordinary doctrine of part performance I should think the acts relied on insufficient. I do not say that this is not an agreement which ought to be speci- fically performed. It is a purchase of land in a peculiar manner. It is however a parol agreement, and there- fore contrary to the Statute' of Frauds. It is true that part performance of a parol agreement will take it out of the statute, but it must be such a performance as jndcment renders it unjust and a fraud not'to fulfil the whole agree- ment. In the present case the only acts of part per- formance are the removal of the family and furniture and staying a few days and waiting upon the old man ; at his death all that the plaintiff had to do when he found his hopes unfulfilled was to return to his own place, and resume his former occupation. It is true he had lost a little time and perhaps a little money, but this is not I think of sufficient importance to induce the court to set aside the statute, especially as the plaintiff brought it upon himself by his own mis-management, and moreover failed essentially in performing the agreement on his part. Upon the whole I think that the bill should be dis- missed with costs, unless it appear that a will was duly executed and not revoked, in which case the plaintiff woilld be entitled to a decree. Per Curiam. — Appeal allowed and the bill in the court below dismissed with costs. ERROR AKD APPBAL REPORTS. On Ai-PKAL KBOM THIS Cm Of QujtSNS JBe.vcu. Crow v. Martin. J>e.cHp,on of lan,-Effeci of survey on Ian,. ,ranU, tefor. ikat ,ate at the north-east ongle of thnnid it .In ?u^I" ''''' ^'""n«>«. west flfty-eight chains, mo ^0^/1 » zl"''''''' ^"'''^■five degrees granted to Hugh Holme.," Ic In 18 „ " '^T' °^ "'^ '""ds made, the plan of which hewed a road b^wlnn^?' 'I ""^ '""^'^ ^''« concessions fifty-eight chainrfrom ?he Hver wh 'h u1 ""'^ 'T''^ opened however, and the Un,U rom„' • ' , "" '""' "^''er l)een the year 17^ when a desollT "'',' V' "'«.«««''' Position as in in th'e name of o^o ^«Lt asTu "bi'lr^h''- T''^ '''' '"'"' '°^ chains, more or less to a po ','7ontl w'ooo';^;r^° «"" ^''«lf but no patent had OTcr been rnmn f ." "^* •"""■« <"• 'ess, McOarvin: interest in"his land t .? !.' "" '"""^ description sheriflFln 1811 under execution and t1«"^"'""^ ^"''^ ^"^ "'« number twenty, in the firs'ttncess n. c'ntaS^oO r "' '°' or less: net exnrcssinir on,, ^^. i- '"tuning ^uo acres, more Plaintiffwasm dTiTlf^XdpSold'r"''- '^^ '^''^'^iotbe twenty) as containing :iOO acres .^bou„,Ip*!.'-"T*'''J°'^''"'"''^' ^ond-oiee?sr-. 1^ ---^-^^--befrnMr^sS the river Thames, and that ho had Vff fm^ '^"^-^'S'" chains from action for trespass to lands to fhe'rrtt thereTaS"' 1° T^ "" were situate at a distance greater IhlnT.'^ although the samo granted to Bolme.. [A. Wi/so; J.^'dls" enting ]"* '""' ^''^ ''""^' This was an appeal by the defendant from a judgment of the court below, as reported in the twenlsS volume of the reports of that court, page 485 where tb« pleadings, the evidence, and the ;xhib ts used r th cause are fully set forth. " ^^^ From that judgment the defendant appealed for th. ollowmg amongst other reasons • that theT,' . m th te„, ,,ro«gh which the' pwLlff^ ^eTrd not embrace any part of the lands in question Z .W lz:::i "^' '^^^'^^^°"' e.ceptinrrnum ef : r„»trictne, oucli mimber and measarement m„=; govern, and if ,a, ,ho re,„U i, as above aS 2^^ the boundary mentioned in tie deaciption t '^C' VOL. 11. ' (•'1 426 EHROR AND APPEAL REPORTS. t*P" 1864. patent " as Innd granted to Edward Watton,''' could bo ascertained and rendered certain it was not so done, there being no evidence of any land so granted, nor of the locality of such so called boundary : that the patent tlirojigh which the defendant claimed vested in the grantee the lot (twenty) in the second concession, though such lot was not then ascertained by survey, and that the patent through which the plaintiff claimed being subse- quent thereto could not aflcct it ; and that if the patent through which plaintiff claimed covered the land in question, the deed to the plaintiff did not, nor had the plaintiff proved any title thereto. The respondent (the plaintiff below) contended that the description in the patent, through which he claimed, included the land in question, and that ho (the respondent) derived title to such land by the subsequent deeds put in and proved. Mr. Anderson, for the appellant. Mr. C. Rolinson, Q. C, and Mr. Roaf for the respondent. Draper, C. J. — Trespass to land of the plaintiff Judgment, commencing in the limit between lots Nos. 1^' & 20, in the broken and front concession of the township of Chatham, at the distance of fifty-five chains from the river Thames; thence north forty-fi«o degrees west twelve chains five links ; thence parallel with the river Thames eleven chaibs ; thence south forty-five degrees east twelve chains ; thence south forty-five degrees west eleven chains to the place of beginning. Pleas. — 1. Not guilty. 2. Land not plaintiff's. 3. Land the defendant's at the time of the alleged trespass. The plaintiff claimed under a grant from the Crown, dated 28th of August, 180 4, to James MoGarvin, in fee of lot No. 20, first concession Chatham, described therein as all that parcel or tfuct uf land situate in the township of Chatham, containing by admeasurement 20<- acres, be the same more or less, being lot No. 20, in BRROR AND APPEAL REPORTS. 1804. the front or first concession of tl.o said township, butted iess to wit/nn one chain of the lands granted to Hunh Holme.; then south forty-five degrees ws S chains more or lo^^i t„ +i,„ i- •. . '""^*y &1Q .1 ^ I "" J'fmt between lots Nos 20 & 19, then south forty.five degrees east to the R ver Thames; then along the water's edge followin7the era courses of the river against the°strean fh , 1" eg.nn.ng^ Then by a deed dated 25^ Oct er r ct 't Tv ^''"" ^'"'^^*' «'--''ff «f the western d! trict, to Wilham Everett the youn-^er unnn „ . / , that certam parcel or tract of lan.l A-a-^~ Z^ \ e ng i„ .,,„ .o™s,,p of C,.at.,a. li •;: n'o'Io" " the first concess on nf ti,« ♦ l- ' '" ;^easurement2:;:c:eVl rS' TheT? 'Vt dated 10th June, 1817 from IF/; r. ^ '^ ^''"^ Joungerto^.„..;r..i; ■ .h IT, """ *'^ "^'-'' in the deed from the sh- hr 'it T T^P^'"" "' 24thADril 181« f / " ^^ "" ''^^^^'^ dated m of all that land known and described as lot No ^0 Ch °' ^•''* '""^^^^'^^ °^ ^'- «-^J townsl l^of land b!!""'"""^^ '^ admeasurement 200 acs land be the same more or less * * * h.iff.,1 a T \ as follow,, tha. , .o,„y .M„ L„tb, th Ki^'T'L"""^^ •^cmi conceaiomr on one side by lot No W-IT the other side by l„t No, H An, „,.i' , ' "'' °" da.«, 2at,. .,„^„„ ,««-; frot"'^::^ ^.:, t The plaintiff also put in a copy duly certified dated 4th September, 1800, of thefollo.;;ngdL^•ntLn^t: |;u ^. tne o^oks of the Surveyor General's department f^-^rdWatson, ,,, ^o. 20, in front, Chatham, Cou„tv of Kent, Western District, commencing at a pos't olS 427 428 1864. Crow T. MarUn. ERROR AND APPEAL REPORTS. river Thames in the limit between lots Nos. 19 & 20, then north forty-five degrees west, sixty-seven and a half chains more or less to another post ; then parallel to the general course of the front, easterly, thirty chains more or less to lot No. 21 ; then south forty-five degrees east sixty-seven and a half chains to the river, and then westerly along the water's edge with the stream to the place of beginning, containing 200 acres more or less. With Land Board certificate. 22 August, 1792. No. 7244. In the margin of this description was the follow- ing memorandum : on the 18th August, 1804, the secre- tary certified that no deed had been completed to Edward Watson." The defendant objected that this certified copy was not evidence to prove that i^o patent had been completed ; it certainly does not prove the negative stated, but there ia no proof of the affirmative, and it seems to have been admitted that no patent for the lot in question ever wa? Judgment jggugd to Edward Watson. The plaintiff" also put in a duly certified copy of letters patent, dated 13th May, 1803, granting to Hugh Holmes lot No. 20, in the 2nd concession of the township of Chatham, containing 200 acres, more or less, and bounded thus : " commencing at the S. E. angle of the said tract, heing the N. E. angle of the lands granted to Edward Watson, then N. 45° W. QQ chains, 30 links, more or less, to the allowance for road in rear of the said lot; then S. 45° W. 30 chains, 26 links; then S. 45° E. 66 chains, 30 links, more cr less, to the rear boundary of lands granted to the said Edward Watson ; then along the said boundary to the place of beginning." Both parties admitted that the only survey on the ground of which there was evidence, was a survey made by Thomas SmitJi, in 1809, a plan of which was put in. It shewed an allowance for road between the first and second concessions south of the locus in quo, which al- lowance for road was fifty-eight chains distant from the m 1684. ERROR AND APPEAL REPORTS. river, on the course given in the patent issued to McGarvin. But the lot with that boundary would con- tain only 153 acres instead of 200. There were marks found of a blazed line corresponding with this allowance for road, which, according to the evidence, must have been made many years after 1809, and no road was ever opened there. No trace was found, nor any evi- dence given that a post was ever planted at the distance of sixty-seven and a half chains from the river as is assumed in the description for patent to Watson. A witness for the defence stated that he had lived near the locus in quo forty-six years, and that as long as he could remember there were blazes on the trees marking a straight line as a concession line between the first and second concessions, and the plaintiflf's fences were built up to that line and no further. The plaintiff had a verdict for him subject to the opinion of the court upon what, on this evidence '"">«»«*• 13 the legal boundary between Lot No. 20 in the front range, and lot No. 20 in the second concession ; and the Court of Queen's Bench in Trinity Term, 1863, gave judgment in his favour. Against this judgment the defendant has appealed. The appeal gives rise to two questions,-lst. Whether on the pleadings and evidence the plaintiff has shewn any title to the locus in quo, assuming that it is part of lot No. 20 in the broken and front concession of Chatham ? 2nd. Whether the premises as described in the declara- tion, or rather that portion of them on which the tres- pass was committed, are part of lot No. 20 in the said front concession ? I assume the identity of the concessions designated aa the broken, the front, and the first concession. • ^u' l^lf 1^'''^ '^ '^' 2^*^ ^'^'^''^ 1811, convey- ing " lot No. 20 in the first concession," though it ml tions no boundaries, does, I have no doubt, convey 480 ERROR AND APPEAL REPORTS. 1R64. whatever land upon evidence appears to be embraced within the actual limits of the lot so named, but this deed gives no information as to those actual limits. The same observation applies to the deed from William Everitt to Jamea Woods. The deed however from Jamei Woods to Thomas Martin is different. It con- tains a description of the lot, and bounds it on the rear by the allowance for road between the first and second concessions which was laid out on the ground in 1809, while this deed bears date in 1818 ; and the deed to the plalntiflF contains a precisely similar description. According to the evidence given by a surveyor at the trial, the distance from the river Thames to this road allowance is fifty-eight chains, and the patent for this lot describes it as commencing on the river at the north- east angle of the lot and running thence north forty-five Judgm.nt. degrees west fifty-eight chains more or less to within one chain of the lands granted to Hugh Holmes, evidently contemplating a road allowance between the first and second concessions. Taking into consideration only this patent and the subsequent deeds of this lot I feel no doubt that the plaintiff, under them alone, establishes no right or title to any land north of this allowance for road. The government intending to grant lot No. 20 in the first concession to McGarvin, and assuming it to contain 200 acres, described it by metes and bounds, ard made its depth from the river fifty-eight chains, ter- minating as appears when the description is applied to the ground at the allowance for road between the first and second concessions. The description however says, to within one chain of the lands granted to Holmes, and it is argued for the plaintiff that the distance given, fifty-eight chains, is a mistake, because that distance will not reach to within one chain of the lands granted to Holmes. I think there are two answers to this argument, 1st, that the northern extremity or rear of the first con- cession is reached, and the patent to McQarvin is only BRROR AND APPEAL REPORTS. 481 1664. for land m the first concession, and 2nd, that if the sheriff s vendee and Woods could by possibility claim more, yet the plaintiff, under the deeds of 24th April, 1818 and 28th January, 1843, is bounded in the rear by the allowance for road between the first and second concessions, and he sues for a trespass committed to the north of this road allowance. For these reasons I conclude that judgment should have been given against the plaintiff, on the ground that he has not proved title to tlie locus in quo as described in his declaration, for he has named no lot, but has only described a piece of land commencing ,5 chains from the river, on the limit between lots 19 and 20 in the broken and front conces- sion of Chatham, and lying further from the river than the point rf commencement. It is true that his title covers 5r .^s from the river, but the trespass was committv:.. suii farther back, and beyond the allowance for road between the first and second concessions. lam of opinion the judgment should be reversed, and ,.^,,, the postea given to the defendant. Adam Wilson, J._I consider it to be entirely a question of fact whether, in 1811, the sale by the sheriff of lot No. 20, in the 1st concession, included that lot, according to its original grant and survey, or according to what it was, if it is to be considered as governed bv the survey of 1809. '' In Doe d. Dunlop v. Servos (a) a person who held lot No. 5 by patent, and who had occupied part of lot No. 4, as and conceiving it to be a part of No. 5, was held entitled to defend it under the description of lot No. 5. In Anstee v. Mlms (b) it was held that a devise of all the testator's lands in the parish of Doynton passed the lands in question, although a portion of it was in Doynton, and the rest of it was in fact in the parish of Weeksand Absom, Pollock B., said, "If the land was (o) 6 U. 0. Q. B. 284. (6) 1 H. & N. 225 432 ERROR AND APPEAL REPORTS. 1864. Crow T. Martin. Judgment. reputed to bo in Doynton, then the testator meant to g've it. He did not mean that if on investi- gatic. this piece of land, which he supposed to be in Doynton, should turn out to be in Weeks and Absom, it should not pass; he never intended that the question should depend on the parochiality of the subject matter of the devisee if, in common with others, he thought that the land was in Doynton, it passed by that description." ****** " By the gift of land in a parish, a testator means to pass that which he understands; that which is generally understood to be in the parish — a subsequent discovery of the true parochiality will make no diflereuce ; if it were otherwise, a will would mean one thing in 1804, and another in 1855." Bramtaell, B., asks, "What is the primary signification of the wprds 'in the parish of Doyn- ton V is it that which shall bo proved to be in Doynton, or that which is commonly reputed to be in Doynton. I hold the latter to be the natural meaning of the words." There are other illustrations put in this case which strengthen the opinions of the learned judges. In Dodd V. Birchall{a) Martin, B,, remarks, "In order to understand the meaning of the instrument, you should put yourself in the position of the grantor and grantee, and read it with all the knowledge they had at the time upon the subject; having assumed this position, the writing is to decide the rights of the parties." The survey of 1809 could not take from the patentee the land which the Crown had granted to him. As respects him and his rights, he and they continued after that survey as they did before ; his land was still in the first concession; there was no road allowance through his land ; it continued to run, after 1809, in the same place, between himself and Holmes, as it did before that time. (o) 8 Jur. N. S. 1180. ERROR AND APPEAL REPORTS. If, however, a part of it be presumed to have had an imaginary line, called an allowance for road running near to the rear of it, established by the survey of 1809.' the auihoritios shew that the portions of it outside of this imaginary hne, and for some purposes in the second concession, may have a reputation, by name, of being in tne iirst concession. This more particularly applies when there is no evidence that the sheriff or any one else knew of the survey of 1809, and when the allowance for road professed to have been laid out by it has not been, in tact, opened out to this day. If the patentee, by his description, intended to grant What he knew and understood to be the land m the first concession, that land will pass, although it is not all in the first concession, and the same rule, I conceive, must appy to the sheriff, as his duty was to sell all the debtors lands, if necessary, for the satisfaction of the •'"<^«t. debt, and whatever would have passed by reputation if conveyed by the debtor should, and I conceive will, pass by reputation when sold by the sheriff. When, therefore, the court was asked to say on the evi- dencewhatwasthelegalboundarybetweennumbertwenty in the first range, and twenty in the second range, I felt, and still feel, that if the court were to determine it simply as a matter of evidence, and precisely as a iurv would do, that the weight of evidence was in favour of the plaintiff; but I am nevertheless of opinion that it was not a fit question for the court at all, and that it should have been specifically found upon by the jury. The objections to mere questions of fact being sub- mitted to the court to settle upon, are strongly pointed out m the case of Jonei v. Tapling, (a) and I think the present case is another instance of the danger and inconvenience of it. . I K" W 5Q (a) 9 Jur. N, S. 462. VOL. II. 434 1864. ERROR AND APPEAL REPORTS. I am not satisfied the conclusion I came to before was wrong, and therefore my opinion is against the appeal ; but I am quite certain it would have been better for the court to have remitted the case for the jury to deter- mine, than to have assumed the responsibility of settling it for them. Per Curiam. — Appeal allowed; the judgment of the court below reversed, and the postea ordered to be delivered to the defendant. [A. Wilson, J., dissenting.] Ox AN Appeal fbom the Court of Queen's Bekoh. Todd v. Cami ion. Action for rent accrued during tzislence of mortgage held by assignee of reveriion — Estoppel — Liability of mortgagee of term to pay rent. The owner of lands created a mortgage thereon in fee, and afterwards granted a lease of the same premises for twenty-one years, the lease being siknt as to the existence of any incumbrance ; and sub- sequently conveyed the premises to C. upon certain trusts, subject to the mortgage, which mortgage was afterwards assigned to P., who proceeded to a foreclosure and sale of the premises on default being made in payment, and the samo were under a decree of the Court of Chancery sold, subject to the lease, and the fee therein was conveyed to the purchaser by a deed, duly executed by the owner of the equity of redemption, the assignee of the mortgage, and C. the grantee named in the trust deed ; the purchaser as part of the same transaction giving to C. (the trustee) a mortgage secur- ing part of the purchase money, which mortgage was subsequently discharged by certificate of payment duly registered. It appeared that the lessee for years had assigned his interest, and that the same had been mortgaged to T. by assignment and not by sub-lease. The rent reserved by the lease having been allowed to run into arrear, during the existence of the mortgage from the purchaser under the decree to C, an action was brought therefor (after the discharge of the mortgage) in the name of C. against T. as assignee of the term. Held, affirming the judgment of the court below, that T. was liable to pay this rent, notwithstanding he had never entered into possession of the premises, and that the effect of the conveyances was such that T. was estopped from disputing the right of C. as reversioner to enforce payment thereof. [Esten, V. C., dissenting.] This was an appeal from a judgment of the Court of Queen's Bench in a cause pending therein, in which the respondent was plaintiff and the appellant was defend- ERROR AND APPEAL REPORTS. 43 set forth m the report of the case of Jones v. Todd, in W^ the 22nd volume of the Queen's Bench Reports/at plZ ^ pa;r3 0%* ^ "^"* °' '''' '^'^ - *^« court bow! ^~ page d90 of the same volume. From that judgment the defendant Todd appealed on the fo lowing, amongst other grounds : that he deed; under which the plaintiff claimed shewed that the estate of plaintiff was not a part of the reversion ofStLZt he premises, but an interest which accrued to te pUi" Iff under the owner of the legal estate, to whom sZ- ton had conveyed the same before the ;xecution of the lease to March : that at the time of the demise in quest on Stanton had only an equity of reden^ption in the dem eS premises, and therefore the covenants in the easrire only CO lateral to the land and not binding on d fldant especially without entry by him into possession of the property: that before action brought plaintiff 's estl and jnterest in the premises had celsed'and determt """•"'• and the same never was other than a conditional and defeasible estate : that the alleged reversion of stZn never vested in plaintiff, but the same at the t m of Z^zr'-'''' '''''-'- ^--^^^^^^^^^^- app^L?'' ^' '•' '''' ''-' ^- ^-^^' Q- ^-^ for the the"£'^^^^^^^^ In addition to the cases cited in the court below. DuJce V. AMy, (a) Heney v. Low, {h) Hill v. Price 7js Roche V O^Brien, (d) Stokes v, 'Lsel, ^e)Tui^, Leading Cases on Conveyanceing, 771, slelfordou '\ »'■:■ H/W-&N 60O;8Jur.N.S.236 (c) 1 Dick. 344. {«) 3 T. R. 678. (6) 9 Gr. Ch. R. 265. (rf) 1 B. & B. 830. 486 ERROR AND APPEAL REPORTS. 1864. Eeal Property, ' 542, Mayhew on Merger, 60, Piatt on Leases, vol. i., pp. 53, 64, vol. ii., pp. 163, 270, 393, 395, 399, were amongst other authorities refer- red to. ^KdCMBt Draper, 0. J. — The facts of the case, as I find them on the evidence, are as follows : — 1st. — Stanton was seised in <^^e of the premises in question, and on Ist June, 1830, he mortgaged them in fee to Hugh Carfrae. 2nd. — Carfrae died in 1839, having devised the mort- gaged premises, deht and mortgage to his er ^outers. 3rd. — Stanton, on 29th February, 1844, leased the same premises to March for 21 years, from the 2l8t March, 1844, and the lessee entered and took possession. 4th. — By lease and release respectively dated 11th and 12th April, 1845, Stanton conveyed all his estate and interest in the mortgaged premises to J. H. Cameron upon certain trusts, one of which was a resulting trust for Stanton. 5th. — Carfrae' % executors on 4th May, 1849, sold, transferred and assigned the mortgaged premises, &c., &c., to Patterson in fee. 6th. — The Court of Chancery, on 9th September, 1851, made a decree in a suit in which Patterson was plaintiff, and Stanton, Cameron, and the cestuis que trustent were defendants, ordering a sale, with the mas- ter's approbation, of the mortgaged premises, the proceeds to be applied to pay off Patterson, and the balance, if any, to be paid to the defendants as the court might direct, the master to settle the conveyances in case the parties differed, and all proper parties to join as the master should direct. fiRROR AND APPEAL REPORTS. 48t amotT.?' ''^' r'°^ P^'''' '"^J^°' ^' ^^' fo"owing 1864. among other conditions, -that the property was sold " ubjec to tho rights of the Crown in reVct oL:;c^^^^^^ thereon in consequence of the said Hobert Stanton the subject to any judgments outstanding against the said Hohert Stanton, and that the said property was Z "W^r '7: ''''''' '''^''' ^yl^oL/sZonTo imJT 1 *^'"*^""' '''''^ ^^°°^ 21st March, 27th T '\'j:''^y T'^' °f ^100." This was on the chlr t'S;"' '''-'' ""'''''' - ^^^ p- 8th.-.By indenture dated 27th July, 1853, made be- tween Patterson of the first part, Cameron of 'the second part the eestms que trmtent of the third part, Stanton the fourth part, Magrath of the fifth pan, and J^' of the sixth part; Patterson according to his estate &C., as mortgagee and at the request a!d direction of Magrath, testified by his being a party, bargaS Told ^----• and released and Cameron according to L estL te as' trustee, and at the request and direction of Magrath bargained, sold and released, and the eestuis que t^^ at the hke request, kc, oi Magrath, remised, released and quitted claim, and Stanton at the like request, ko aL '^7 ' T"''^' ^"^"'^^^' «^^^' ^«^«^«'d' ratified and confirmed unto Jones, his heirs and assigns, the ame prera^ses habendum to Jones in fee, subject as stated m the condition. 9th.-By indenture dated 27th July, 1853 recitin. the trust deed of April, 1845, the sale o the preSef by erder of the Court of Chancery, to Jone> for Si rematf £?,„'"",'' ""''' ^'"'' "^ «» '» -cure th 488 1864. ERROR AND AI>PBAL RBFORTS. 11th. — On 2nd September, 1861, the mortgage given by Jones to Cameron was satisfied and discharged. 12th. — This action is brought by Cameron for the rent from tho 2l8t March, 1855, to 1st September, 1861. Tho title of defendant is as follows : — 29th February, 1844. — Stanton having the equitable fee only, (being mortgagor in fee in possession,) leased to March for twenty-one years, from 21st March, 1844 ; Match entered into possession. 1st August, 1853. — March in consideration of £500 assigned his lease, estate and interest to Philpotts. 17th August, 1853. — PhilpotU mortgaged the term jodgmniit. to the defendant. 26th October, 1860. — Decree in a foreclosure suit, brought on that mortgage ordering a sale. 14th December, 1861.:— Sale of the term as mortgaged to the defendant. Tho plaintiflTs right to recover depends exclusively upon his being the assignee, during the period in -which the rent claimed fell due, of the reversion in fee in Stanton, which arose as between him and March out of the lease of 29th February, 1844. After the lease and release of April, 1845, Stanton had neither legal nor equitable estate in the premises except indeed the resulting trust in his favour contained in that release, nor can I understand any principle or construction of law by which he could on the facts as they appear be held to be in, as of his former estate. I do not understand that the decree being not merely one ERROR AND APPEAL REPORTS. Of foreclosure but directing a sale also, has the less effect on thenghtsof all the parties before the cou tinthe foredosure smt B, the conveyance n,ade in pursuan l^r 7' '^'' '^^'^ '''''' '^''•'^1^ theretofore was n Paerson became vested in Jones with all its incidents while the equitable estate which Stanton had as In gagor was wUh all its incidents extinguished an T n If as IS said by Lord Sardmcke inCashorne v. Scarf e (a) landTv T " ""''""^ "^ ^ new purchase ofthe and by the n^ortgagee, a like effect must attend he ale of the estate under the decree, for it must vest in the purchaser all that would have vested inThTJ . gee by an absolute foreclosure, and, as u„ er^ nTn: Z r-M""\*'^ ""^«^S- -" convey anTnLta The d ^^'"V'^ ^°"^"^^^"- «f *'- -Ttg "or" The decree that all proper parties shall be joined ftTs" convey. ' "^ "'^""^ '"'"«' to But I have failed to coivinoe myself, thouj-h mv first .mpre»,o„s were the other way that tl^e Jeereo or the conveyance made under its authority, p„t an end ( , til revers,on by estoppel a, between ii/aVdl;, when, he subsequently conveyed, and Marek and .h„ : who have acquired his interest. I assume it to be bevond ques.,o„ that the lease of 29th February, 18« crTatod ..ch a reversion, and that such rovers on was 1X1 face . reversion in fee, and if Stanton had SlnZZ ZtX;:r'"''°''''^'"'-''™'''ra (o) 1 Atk. 606. ,U'.; Todd nmeroii. Judgnunt. ERROR AND APPEAL REPORTS. it thereby was I assume vested in him. If it did not pass frou him to Jones by the conveyance of July, 1853, it must still be in him, nothing else is shewn which would divest him of it. Ifit did pass to Jones, then by the mortgage in fee made by Jones to the plaintiff it would be re-conveyed to him, and either way he had it during all the period for which ho is now claiming rent. If so, the plaintiff establishes his right to recover. The argument in the defendant's favour proceeded mainly on the assertion that Stanton having only an equity of redemption at the time ho leased to March, leaded only what he had ; and that the reversion expectant on the determination of that term, was of the same nature as Stanton's actual interest, namely, a pure equity, and that it either merged in the legal estate when the two were united in Jones or it was barred or extinguished by the decree of foreclosure. The answer to this appears to me to bo that the lease of 1844 says nothing as to the nature or extent of Stanton's estate or interest, but purports and professes to convey a legal estate, a term of twenty-one years, and the reversion that arises by estoppel, because Stanton had no estate out of which he could create the term, must be a legal and not an equitable reversion, and in the absence of any thing to the contrary, the intendment must be that it was a reversion in fee : that the fore- closure suit instituted by the mortgagee in fee could not affect this reversion, which arose out of a transaction long subsequent to the mortgage, and to which the mortgagee was neither party nor privy; that a decree of forclosure would not have vested it in the mortgagee, nor will the sale under the decree vest it in the purchaser, for it is altogether outside of and unconnected with the mortgage, and is independent of any and every actually existing estate, and if it vested in the purchaser it was by force of the apt words of conveyance used by the parties thereto, who were entitled to this reversion by iff I 441 1864. ERROR AND APPEAL REPORTS. estoppel and not by force of tho decrco. The oondition of sale, that It was subject to this lease, would rather strengthen than militate against this conclusion. For these reasons I am of opinion that tho judgment of the court below should be aflirmod. EsTEN, V. C.-Tho facts of this caso are these — Mobert Stanton, owner in fee of tho p. .mises in question on 1st June, 1830, made a r or t, a ago c them in fee to Ifuffh Carfrac, for the purpc k, .f seeding ^600 and interest. Carfrae departed th.-^ lifc^ ^ July 1839 having made his will duly attcslc , bearing date 18th December, 1838, and thereby gave all his property to Anne, Thomas and Jtobcrt Carfrae and James Leslie, on certain trusts, and appointed them executors. Thev proved the will. On 20th February, 1 844, Ifobert Stanton granted a lease of the mortgaged premises to one March for twenty-one years at a rent of £100 a year, which j„ag„.nt. March covenanted to pay; and Thomas Carfrae having died, tho surviving trustees and executors, namely, Atme and Eobert Carfrae, and James Leslie by indenture of assignment, dated 4th of May, 1849, transferred the mortgage to Patterson, previously to which, however and on the 11th and 12th of April, 1845, Robert Stanton by indenture of lease and release of these dates had conveyed his equity of redemption in tho mortgaged premises to the plaintiff in fee, upon certain temporary trusts for the benefit of his children, WiUiam, Sophia and James Stanton, with an ultimate reversion or resulting trust m himself. Patterson tiled his bill of foreclosure on the mortgage against Robert, William, James and Sophia Stanton and the plaintifi", and on the 9th of September 1851, the usual decree for sale was made in default of pay! ment of the mortgage money at the time appointed, and afterwards, and on the 16th of April, 1852, an absolute order of sale was pronounced, and the premises were duly offered for sale and purchased by Magrath for the sum of £1420, subject to the rights of the Crown in conse- ^^ . VOL. II. ■ i' t,- 442 ERROR AND APPEAL REPORTS. 1864. quence ai Robert Stanton having been an accountant of the Crown, and to all judgments outstanding against him, and subject also to the lease granted by him to March as before mentioned. By direction of Magrath the premises were conveyed to Jones, who was either the real purchaser or had taken an assignment of the purchase ; and Joyiea having paid the amount due to Patterson on the mortgage, and other sums as agreed, amounting in all to the sum of ,£782 18s. Id., made a mort. gage to the plaintiflf as trustee under the indenture of 12th of April, 1845, for securing the balance of the pur- chase money, amounting to £637 Is. lid., upon the trusts of that indenture. The legal estate in fee, therefore, in the premises is vested in Mr. Cameron, the plaintiff, as mortgagee in trust. March assigned the lease for twenty-one years to PMlpott^ by indenture of 1st August, 1853, who mortgaged it to the defendant Todd on the 17th of same month of August, and Todd having filed a bill Judgment, of foreclosure on the mortgage, a sale was ordered and the residue of the term was sold and purchased, I pre- sume, by Todd before the rent which is demanded in this action accrued. fit To sustain the verdict and judgment of the court below, it must appear that the respondent, Mr. Cameron, was entitled to the reversion immediately expectant on a legal term of twenty-one years vested in the appellant Mr. Todd. Todd's term originally was beyond doubt carved out of the equity of redemption, and was in the eye of the law existing only by estoppel, and as to third parties was in fact no estate at all. If Jones, taking only from Paterson, had conveyed to any other person than Cameron, confessedly the action could not have been mai^itained by that person. The right to maintain the action therefore must rest upon two grounds : one that the Stantons and (7aweron joined in the con- veyance to Jones ; the other, that the legal estate has come to Oamer n, who claimed directly under Stanton. Witk regard to the first ground, it would not appear to ERROR AND APPEAL REPORTS. 44, be sufficient. Whpn nn «of * • no more bound hv n ? -^ne purchaser is law under execiifion w. n u , " ' " *• purchaser at .for the do,-: 7t row:;:,! '^ " ■"" "'"'»" the purchase was made t "" ""'''"' "I""'' g»ge that had bee: a.ed :„T::' 7 ^ """"^ »»"- ' second mortgagee was nl ! " ''' "»'' "'" »'» -over bo th^tTnZ." "'"^ ^ '" "'= ™"' " """"l doctrine of e,Zn ° Tr^""? '° "'^ P"™"--- '^e be .0 vest thcT^,: ,r^f' f"*--U would "hereas the o„„ e'recr't iZlZtT'^^''^ "ortgagee is not bound by the decl \ . """""^ the estate, and so the lessee in th? """^ ''"'''™ redeem the estate iLT ^'""""' """ '""^^ Cameron in 1 1™^ e"?™" °""" '*''"'°"' """ '"^"•■ They could not ,«„ been ompS to"'- """"r"^' veyance. eompelled to jom in the eon- ren^eTfrre":!: tr """"' "^"- "■» --"■ iega. estate frotif:; , ^r^/- '/» |-3 .he terest nnder the decree as if,™ a. the , f "' mortgage. The esmt. „i,- u r °* '''"° »' 'he legalllte veatedt ];*.t t7t, """"1 ""' '"» which *„,„„ conveyertoeX! He'""""" T"" eoncurrence of the Stanlonsald % '""'"' *» c<.»«a,but he got all the; con ^IT' '\"°''" under the decree «n,I , ^ ""'. f™ h"° Md more ..^eonejotrirl'lZ'^rhfrn-'V:""^'" veyance therefore was I thlnt • • ^^''"' ^°"- oipie of ,„„, .acJSif:;:;:-''- »»''■« p™- which thov nurpr.rted foemr ^11 tho estates The oor,seciue„ce i, ,U ^<,„e, did ooHale X if m B -',g'> i ill Uf *! 1 mM M 1 H m ERROR AND APPEAL REPORTS. 18A4. Judgpient. estate by estoppel and was not bound by the estoppel, and could have ejected Todd from the demised pre- mises. The mortgage which he made to Cameron was derived entirely out of his estate. Jones received the estate which Stanton had at the moment of tho execu- tion of the mortgage to Carfrae, under an obligation or contract to make a mortgage to Cameron to secure the balance of the purchase money. But it was Jones' estate and no other that was mortgaged, and that estate was tho identical estate that Stanton had eo instanti that he executed the mortgage to Carfrae. With regard to the reservation of the lease by the conveyance to Jones, it would appear to me that it could not have the effect of creating the relation of tenant and reversioner between Todd and Jones. For that purpose it must amount to a demise to Todd for the residue of the term of twenty-one years with remainder to Jones in fee. So the reservation as to the judgments outstanding against Stanton would pot subject the estate of Jones to those judgments at law. Mr. Jones, I presume, did not undertake to pay what might be due to the Crown or all the judgments outstanding against Stanton. The object of the reservation probably was to protect Mr. Stanton in reference to his covenants for title. At all events, it could, I think, only give the lessee a right to protection in equity against any disturbance that might be attempted by the purchaser. Tho present case is on all fours with Lord Bowne v. Thompson. \^a) There a mortgagor after the mortgage granted a lease, and then joined with the mortgagee in conveying to a purchaser, the mortgagee being paid off out of the purchase money, and the balance being paid to the mortgagor, or rather his assignees — he having be- come bankrupt. It was held that ho could maintain ejectment against the lessee, although he had received from him two years' rent, and could also maintain an (a) 9 Q. B. 1037. w ERROR AND APPEAL REPORTS. 445 action for use and occupation after six months' notice. U Patterson and Stanton had joined in conveying the premises to Cameron, this case would have been identi- cally the same with Lord Downe v. Thompson, but it can make no difference that Stanton had previously con- veyed to Cameron, or that Patterson conveyed to Jones, and Jones to Camcro7i, and that the Stantons and Cam- eron joined with Patterson in conveying to Jones. If no foreclosure had occurred, and no conveyance to Jones, or by Jones to Cameron, both parties would have been estopped, and the result would have been the same had Stanton redeemed the estate, and either before or after- ' wards conveyed to Cameron: but Cameron having acquired the legal estate o^ Patterson and Jones, neither of whom was bound by the estoppel, is not bound by it m respect of the estate derived from them; and Cam- eron not being bound by the estoppel, Todd is not bound by It, and can shew the truth which he has done, and the consequence is that no legal term exists in Todd, or j„ag:aent reversion immediately expectant upon it in Cameron, and therefore that this action cannot be maintained and that the judgment of the court below should be reversed Even if the circumstance thai the reversion in fee by estoppel had been conveyed to Cameron by Stanton pre- viously to the conveyance by Jones to Cameron, it can- not have any effect under the circumstances of the case • for Cameron, the trustee, with the consent of his eestui's quetrustent, all sui Juris, joined with Patterson, the mortgagee, and his cestuis que trustent in conveying the estate to Jones, whereby the trust estate came to an -nd and the whole legal and equitable fee simple became vested in Jones, so that at the time of conveyance to Cameron he did not claim the reversion by estoppel. Per Curiam.— Aj)]^Qa] dismissed with costs. [Usten V. C, dissenting.] ' • 1 ERROR AND APPEAL REPORTS. On an Appeal from a Dbobbb op tub Court of Chancery., if ti U ! J.U Kerr v. Amsden, Registered Judgment— Lien— ^ Victoria, chapter 34, and\% ^- 14 Victoria, chapter 63. Held, per Curiam, affirming the judgment of the court below, that in order to a judgment creditor retaining the lien created by the registration of his judgment it was incumbent on him to lodge a writ against lands witli the sheriff within one year after th a registration of his judgment; in other words, if such a judgment creditor bad neglected to lodge his writ against lands for a year after the entry of his judgment, and an unregistered judgment creditor or a subsequently registered judgment creditor had lodged his writ before him, the sale effected under such execution will be freed and discharged of any lien created by such registered judgment. [VANKouGHNET, C, dissenting.] This was an appeal from a decree of the Court of Chancery in a cause wherein Thomas Cockhurn Kerr and Jon,^ Brown were plaintiffs, and Samuel Amsden and Angus McCollum were defendants, the bill in -which statement. Set forth that On the 28th of December, 1857, plaintiff's recovered judgment in the Court of Common Pleas against Amsden for ^306 lis, 3d., which was duly registered in the registry offica of Haldimand on the 30th of the same month, at which time Amsden had divers lands, &c., in that county ; and the same judgment was re-registered on the 28th December, 1860 : that part of the amount had been recovered by virtue of writs issued on the judgment, leaving still due £160 with interest and costs; that defendant McCollum claimed an interest in those lands by virtue of a sale and conveyance by the sheriff" of Haldimand, and prayed payment of the amount remaining due, or in default a sale. The answer of the defendants set up that by virtue of writs of fi. fa. against the lands of Amsden^ the same had been sold and conveyed to Mo Colli n, and that no writ against lands had been sued out on tho judgment recovered by the plaintiffs within the period required by law. Thei foUowiug admissions were made and signed by ERROR AND APPEAL REPORTS. IS.'ifl' fJiof K.f ^i- , ° -ioth December, ^-~v— which lands were sold wpr7„ -^ •^''''''* ""^*"* .aio ou .he third l;"'";/;::; ^j :,"? f ™^ f^ for want of bidders thatTh. 7 •' / ' '"' ""' '"''' on the»ve„.rday;fNo,lf ;:/"•''' "V^'"™"' were sold o„ the 2o.h of mZt ts7o ll'r:!' b.ll was filed on the 18th of Mav 1«(il , ' . "if aherirs hand, for ,„„iee Ll^^^To^ZV^ .ants resided in B„„„.lir:::5;:ll-t^ .nd^r;:--™^^^^^^^^^^ hononr Vice-Chane.llor Msien -who XT, • ° '"' consider the case, dis^isSThA "^IS ^:' "™ '° The plaintiffs being dissatisfied with that h-^ re-heard the cause before the full cou t when I T' ' which had been pronounced wa affirms J l. ^"'''' lordship the Chancellor tiratin!r. 7 r'^'^'^ fn>. the views expressed b^r^dtce-Chat^r Whose judgments were as follows:- ^^^^<^ellurs, Esm,V,C.-Thequestioninthiscasoiswhetherwhere 447 ':f£^-. 448 ERROR AND APPEAL REPORTS. 1864. a registered judgmenl; creditor has failed to deliver -t "vrh against lands to the proper sheriff within a year Irom the entry of his judgment, and an uniogisteved judgr^^nt creditor has lodged his; writ against lands ia the hari'^'v'* of the sheriff before the registered judgment creditor, the sale of the lands under 'he writ oo ihe unregistered judgment is, or is non subject to the equitable charge created by the registration of the prior registered judg- ment ? I have ;\iready expressed an opinion npon thitj point in a judgment which I delivered alone : but I thoug.tt h vr^ duty to re-consider the question, since the arguroen?, of hia appcni, and I adhere to the opinion which I ir^rore expressed. The clause in which the question avisos is a very singular one. In the I'th Vic- toria, chapter 34, it occurs in the form of a proviso in the ISth section of the act : but 'in the Consolidated St itutes of Upper Canada it forms a separate clause by II self- It seems to bo founded on a misapprehension of the law, Judgment, Or rather of the true construction of the act in which it occurs. It seems to indicate that the legislature thought that but for that proviso an unregistered judgment, fol- lowed by a writ in the sheriff's hands, would prevail against a registered judgment. But this, I apprehend, was an error in construing the 13th section. The sale under the unregistered judgment would convey only such estate as the debtor had, at the date of lodging the writ upon that judgment in the sheriff's hands; but this estate was subject to the registered judgment, supposing the writ to have been lodged after the registration, and must have gone to the purchaser subject to such registered judgment. And when the registered judg- ment creditor afterwards proceeded to a sale, under his own judgment, either at law or in equity, he ivnuld offer for sale and would convey to the puic!' ■ ar such estate as t^e debtor had at the dat'^oftl^ .ogis- tration of hit : Igment, and such conve^-. v 'vould therefore over-reach the conveyance under ' ■ 'vrit upon the unregistered judgment. Such w^uld have !i icn the effect of the 13th section without the proviso, .j" i irom 1864. ERROR AND APPEAL REPORTS. the terms of the proviso wo must suppose that the le(?is- that effoc, but intended that an unregistered judgmel? w.th a wnt should prevail over a registered judgment, restiuoo::::"^ [t'^'"' ^" °^^^^ *^ ^-^^^^^^ result to cases m which the registered judgment creditor had neglected to lodge his writ for a year'after Te r^ TZlV r'""'' T^ '^'' '^'y ^""''^^'^ °"iy th^t a registered judgment should over-reach subsequent sales and conveyances by the debtor, which, in fact, was the real effect of a docketed judgment in England, when docketing was practised. It might have been fairly questioned whether the proviso in the 13th section of 9^ Victoria, c. 34 was not repealed by the 13th and Hth Victoria, c. 63, but I should have thought that it was not so repealed. ^ _ The effect of repealing it would have been to have given absolute priority to the unregistered judgment j . . with a wnt, according to what we must deem' to'have " been the meaning of the legislature in framing the 13th section, or to have preserved the priority of ^he regis- tered judgment, notwithstanding the neglect to lodge the writ withm a year after entry, neither of which results would have accorded with the intention of the legislature. I should have thought, therefore, that the proviso in question was not repealed by the 13th and 14th Victoria, chapter 63, and the matter is placed beyond dispute by the 22nd Victoria, chapter 89, sec 52 which preserves or retains it in the form of a separate clause. The result is that if a registered judgment creditor should neglect to lodge his 'writ egai'ns Tnds with the sheriff for a year after the entry of hi judgment and an unregistered judgment creditor should lodge his wrrt against lands before him, the unregistered judgment will « take effect " against the registered judginfand the question is, what is the effect of this provision ? The meaning pf the legislature, I think, was that a 419 450 1864. ERROR AND APPEAL REPORTS. registered judgment should not only bind the lands, as against subsequent purchasers from the debtor, but should have priority over unregistered or subsequently registered judgments, although, with prior writs in the hands of the sheriff, provided the registered judgment creditor should issue and lodge his writ within a year from the entry of the judgment. If, however, he should neglect this precaution the unregistered judgment, with a prior writ in the sheriff's hands, should "take effect" against the registered judgment. The intention of this provision must be that where the sheriff should proceed to a sale, the judgment creditor, who had the first writ, should be paid in full, in preference to the registered judgment creditor. This is the only way in which the unregistered judgment could "take effect" against the registered judgment. The, whole object, however, of this provision will be defeated if it should be deemed that the equitable charge created by the registered judg- Judgment ^^^^ shouid, although the legal lien would not, prevail over the nrregistercd judgment with the prior writ in the sheriff's hands ; because, in that case, the sheriff's sale, under such writ, will be subject to the registered judgment; the purchaser will deduct the amount of it froh. his purchase money, and the unregistered judgment creditor, instead of being paid first, as the legislature intended, will be paid second or not at all. Thus, supposing the estate to be worth ^300, and the registered judgment to be for ^£200, and the unregistered judgment with the first writ to be also for jG200, the purchaser, understanding that he purchases, subject to the registered judgment in equity, will deduct the amount of it from his purchase money, and will offer only .£100 for the estate, and the unregistered judgment creditor must be satisfied with it ; and the purchaser, in order to preserve his estate, will have to pay the full amount of the registered judgment to the holder of it. In other words, the registered judgment will be paid in full first, and the unregistered judgment, with the first ERROR A!TD APPEAL REPORTS, writ, Trill be pni.l second, and only in pnrt or not «f „1T first m equ„y ; „|,„h „.„„,j ^^ ^^ ^^^^^^ ^^^^^^ P-"i "iter hll .;■''.'"/'• "''^^ ''''' "■" '"'="-) «» it ..^. " *;^P''iJn It. Iliej re-enacted and explained Of the lathana-Ht,";;::;:*,;! roTrrr:: been enacted mdemintuilu ■ fjfk. • ° bo nt.,.ib„,ea ,„ the" r;e.„„,r' '"'"'"" "'"^' Ko» the ..e„. of .,.„ 13-:::,:: rr .rih^ vi: l • .mn.ed,atel^ follow, would have been i„,elb,e Before this ael the first writ prevailed; the lerisla- ' ture »ea„t that it should still prevail, and sueh f h" true construcfon of the 13.h section without the pr viVo whtch q„„l,fied this priori,^, „„„ ,i,„M it ,„ '"3 °' J .ch the reg,s,ered judgment creditor should ne" " dehver h„ writ far . year after entry ct his iudCe'e The effect „f the entire section was that a fegCr"d judgment should bind the lands as against sublou „t purchasers from the debtor, and should°even prevZ "' an unregis ercd judgment with a prior writ, unless the regis ered judgment creditor shall neglect. loZ S wrtt for a year aftj, .utry of hi, judgment. ^ Thcncamethel8thandHthVictoria,ehapler63 which began by c,pi„i„i .h, 9,, ^ 4 P " '^^ oh 13, but as I have r V=ady observed, did not mean ,0 X°,! lent. 422 ERROR AND APPEAL REPORTS. mm L 1864. The effect of ilic iu^t ftecuon of the 13th and 14th Vic- toria, ohaiur (i-j v,uhjut the proviso being understood, would h ,VT been that all registered judgments would have been postponed to unregistered judgments with prior writs ipso facto, because such was the meaning and true construction of the 9th Victon^ > ' ^pter 84, section 13, without the proviso; an.- uns ecction was re-enacted in the 13th and 14th Victoria, chapter 63, with the same meaning with which it was originally passed, in the 9th Victoria, chapter 34. The second section of the 13th and 14th Victoria, chapteu 03, must have been enacted with the same intent as the first, because the legislature could not pass two clauses in the same act of parliament with a different and inconsistent intent. TIio first and second sections are to bo read as if contained in one sec- tion, as in fact they are in tl^o Consolidated Statutes, and the meaning of them, independently of the proviso, ip that registered judgments shall bind lands in the hands Judgment, of subsequent purchasers from the judgment debtor, in the same manner as docketed judgments in England formerly did, and should form an equitable charge on such lands, but shall be postponed to an unregistered judgment with a prior writ, unless (such is the effect of the superadded proviso, expres od in tiio 9th Victoria, chapter 34, ■ rlerstood in the 3th and 14th Victoria, chapter 63, au e-expressed in the Consolidated Statutes) the registered judgment creditor should deliver his writ to the sb-riff w*'hi, a year fron the entry o" his judg- ment, in which cr.3e the registoitd judgment shall nre- vail over tho unregistered judgmmt, notwithstanding the priority of the writ, both at la-,,- and in equity. This construction necessarily fl': ''ror he consideration that section thirteen jf 9th Vicf m, .pter 34, and saction oxw. of the 13th and 14tli Victor, a, chapter 63, mean the same thing, and section two of 13th and 14th V ic- toria, chapter 63, means the same thing as section one ; that these clauses per se gave an absolute priority to the unregistered judgmeat with the prior writ, in accordance with the previous law, but that this prima facie opera- BRROR AND APPEAL REPORTS. 18«4. tion was qualified by the proviso to the 13th section of 9th Victorm, chapter 3l.^«.ul the efTcct of the whot s i. founded, .„a effc:Lt". Sr,?X?'"V' the forcible prevalence of llio writ that ,1,S ■ ^.passing .he m, section of Th '.tvi tTrirTal t'r protection of the registered judffment Th^ T^.v. .t;.i::""r"' '' *- p™™. -"' --i™ *:::; th a^d' UH r' ■■"''" "'« =™» "on'tractio^ in „"„ i' *: arn':°:„di,:'r '*; ""™ '- ^" -"■'^^ '-« jr cApiainea, and the second section of the act unregiste, , .dgment „ not subject to a prior rcjsterej judgment, upon »h,ch a ;,ri, has no. been lodged Sn hlT, r "" ?f ^' """ "■^' *» P-^haser afauch ale holds dtseharged from such registered judgment SPMoa., V.C.-The r|ues.ion seems .„ divide itself mo two pomts. Firs., whetl.or the proviso LoTl, y.ctor,a, chapter 84, is conSned in it's ope a. on „ judgments registered under that statute, a'd d es n t apply .0 judgments registered undo, 18.1, a„7l4.h y o.or,a; and ne.., whe.her, if it applies under the in cquitj-. i'he first point has been decided i„ ,h„ 458 a 464 ERROR AN© APPEAL REPORTS. I!' J i : lis m It m 1864. Tlie Btatuto 0th Victoria gave to registration the effect of creating a legal charge, but provided that it should retain its efficac lor a year only; ]8th and 14th Vic- toria continued the same effect to registration, and gives the further effect of creating an equitable charge ; the proviso is not repeated in terms, but is held still to apply at law; the legal charge is still lost, unless ex( ution against lands be lodged with the sheriff within the year. If without lodging the writ tho charge in equity is preserved, tho salo by the creditor who has obtained priority at law must be subject to the equitable charge, and his priority is merely nominal. Tho words of the statute are, "shall take effect," and it is the respective judgments, not writs of execution— that are to take effect, and tho words are general, not confined to law or equity. If the equitable charge continues without fi.fa. lodged, then the judgment, having priority at law, jQdgmwt. ^Qgg j^Qj. ^^^^ ggp^^j against the registered judgment, but the registered judgment does very effectually take effect against it. The legislature was dealing with priorities as between judgment creditors, and prescribed under what circumstances priority should be obtained, should be preserved, and should be lost. It evidently contem- plated the registered judgment creditor pursuing his legal remedy, for it inflicts tho loss of legal priority, at least, upon its neglect. Suppose, then, the legal remedy preserved, as was the case in the common law cases reported, both having writs in the sheriff's hands, the contest at law has been, which judgment should be first satisfied— which should " take effect" against the other. It does not seem to have occurred either to the litigants or to the court that the priority all the while was really with the registered judgment creditor. Strictly, of course, the court of law had only to do with the moneys realized by the sale, but the whole contest was futile if the equitable charge remained. It does seem strange, certainly, that in order to ItBROR AND APPEAL BEPORM. . / preserve an equitable charire it .J.n„i i k »o do what fl,e act r>ro,cr\hJ ' . the omission " to the equitable chL Thid. ir^Vr •! '" ^'^"' terms by the act, merely hoclu 1 it^I '" «'"''""' cessary or anomalous. P^''" '" "^ "«"«- after the other ud^^L "' '"""'"™ '""• '•'«i-"=«'l prior rcgmcrcd X™ "7°' 'u'" """^ "S»"">' ">» prior regime cd iufc ' ,""^' ">" '""'J' ''"'"S »«h th. judgmen. ;i.h . i ,v Id, " '"'''" P'"""' ""» "Tec." .gain,. „,« p o tSl, "'7"'" ""^ " ""«» take effect against til * J"'lgment. Does i. eqai..ble ohaZ i, '" .°"^. P""'"'"' »™«. if the legal charge/' Th'e'"'"' '" ''"™''™"= "" ">= of .he 8,a.* „ has 7, ir r "T ""'" """^""otion .hinkthattheLrin„f .,';"•; '"'•."P™ "'» »''°'«. I necessary bv the ««!/ "'""" "" y""- '' "'-Je « the legal charge ' •"■""" "■» "J"'""'!' »• "-eH J^::trr;rreCrTr^'^^"-'""^ other grounds ;- ' *^' following, amongst 455 i H ■^•ftf 466 ERROR AND APPEAL REPORTS. 1864. county, formed a lien on the said lands prior to such ' judgments, and the executions issued thereon, and such sale was and should be declared to be subject to such lien; that the judgments, under executions issuei" on which, the said lands were sold, being judgments regis- tered subsequently to that of the appellants, and it not appearing that such executions were issued within one year after such registration, formed liens on • Am%- den's lands subsequent to that created by the appellants' registered judgment, and such executions could not give them a priority over it or change the relative priorities of such li^ns ; that the statute 13th and 14th Victoria, chap- ter 63, gives the registered judgment of the appellants a priority or lien in equity which cannot be affected by the proviso in 9th Victoria, chapter 34, which would seem to require a legal writ of execution against lands, to be issued and placed in the hands of the proper sheriff within one year to maintain such priority — the statute, Judgment. 9th Victoria, chapter 34, not, giving the registered judg- ment creditor the remedies in equity or creating the equitable lien which the statute 13th and 14th Victoria, chapter 63, does. The respondents on the other hand contended they were entitled to retain the decree which had been so pronounced on the following amongst other grounds : that the appellants lost the priority created by the registration of their judgment by not issuing execution within one year ; that the judgment, under execution, upon which the respondent Amsden's lands were sold, had priority over the appellants' judgment ; and that the effect of the appellants' neglect to issue execution was to destroy the priority of the appellants in equity as well as at law. Mr. Strong, Q. C, for the appellants, referred to and commented on Moffatt v. March, (a) Neate v. (a) 8 Gr. 623. J ! (1 S; ERROR AND APPEAL REPORTS. rn5''7^f '"? ^°' *''' ^^^P^'^^^'^ts, Cited amongst other cases The Commercial Bank v. The Bank 0/ T J r an anonymous case reported in 1 Vernon, 171, as to the delay m proceeding after bill filed. After taking time to look into the authorities the appeal was dismissed with costs, his lordship Chief Jus- tice Draper stating that he felt it unnecessary to make tZ "? n"'' "°'^ °" ^^° •^*^^«' - *° -y -ore than hat he fa ly concurred in the judgments given by the earned Vioe-Chancellors in the court below; an/ was th lefore of opinion that the appeal should be dismissed wim coSbS. I > Vankoughnet, C, retained the opinion expressed on he re heanng of the cause. The statute having declared that the registration of the judgment shall have the same effect as if the debtor had executed a writing under his hand creating a charge upon his lands, his lordship was of opinion, that in any sales made by the sheriff under Zl P TTr ^''"'^ "P°" ''^''' judgments the lands of the debtor must be sold subject to the lien in equity created by such registration. ^erOuriarn.-lVan1coughnet,G., dissenting.] An- peal dismissed with costs. ^ •Tudgmont; (a) 3 M. & C. 407. (c) 1 Eru. & War. 171. (c) (4 1 K. & J. 313. 68 iff) 21 U, C. 2 B. 91. (5) 8 New. R, 20. ('/) 3 Hare, 416. (/) 1 Y. & C. C. C. 206 VOL, H, 458 ERROR AND APPEAL REPORTS. 1864. [Before the Hon. Arch. McLean, Ex-C.J., President,* the Hon. W. H. Draper, 0. B., Chief Justice of Upper Canada, the Hon. P. M. Vankoughnet, Chancellor, the Hon. W. B. Richards, C.J. C. P., the Hon. Vice- Chancellor JEsten, the Hon. Mr. Juntice Adam Wilson, and the Hon. Mr. Justice John Wilson.^ On an Appeal from a Decree of the Cocrt op Chanckrt. St&tement. The Bank op Montreal v. Hopkins. Mortgagor and mortgagee — Estoppel — Representation affecting third parlies. The owner of real estate crentod a mortgage thereon, and afterwards sold and conveyed a portion of tlie property by a deed containing absolute covenants for quiet enj|oyment, tVeedom from incumbrances, &o., taking from the purchaser a bond conditioned for the payment of a proportionate amount of the mortgage debt. Held, reversing the judgment of the court below, that the fact of the purchaser holding such absolute conveyance was not such a representation to the holders of the mortgage as warranted them in executing to the purchaser a release of his portion of the estate from the mortgage, •ind afterwards looking to the mortgagor for payment thereof [Vankoughnet, C, dissenting.] The facts of this case sufficiently appear in the report thereof in the court below in the 9th volume of Grant's Reports, page 495. From the decree then made the defendant appealed. Mr. Strong, Q. C, and Mr. Crickmore for the appel- lant, contended that the decree should l>e reversed on the following, amongst other grounds: that the covenants in the deed from Hopkins to Kerhy were not intended to operate between any other parties than the parties to the deed, and the respondents should not have relied or acted thereon without further enquiry; that as between the parties to the said deed, the covenants were in equity of no force or eifect, it clearly appearing that they were not in conformity with the agreement of the parties, and 4l-_ J««,1 «.y^.,1^ ^./^ y.nfn^rr,aA n'l fllf> (Ymimd flf mV.'f'lVA* lllC uccu r;vu;--t r-rv iv!--» -•'- ;;, — -- ; that the respondents did not execute the release in pursua.ico of such covenants, or rely thereon in any way, * Was absent •when judgraont was proinouuced, ERROR AND APPEAL REPORTS. 469 but made a bargain with Kerlxj to release to him for 1864. £20, without regard to the rights between Kerhy and *— v — ' the arpfiUant; that the appellant never authorised the Mongrel, respondents to execute the said release, or assented Hopww. thereto, or concurred therein; that the respondents were guilty of gross negligence in executing such release to Kerhy, without enquiry of the appellant, inasmuch as the appellant lived in the city of Toronto, near the agent of the respondents, and they could, with less inconvenience and expense, have applied to the appellant, than to have searched the registry office ; that but for the said release Hopkins, by redeeming the respondents, could have enforced the payment "out of the released portion " of the £241, the amount of the said mortgage which Kerhy had assumed and agreed to pay ; and also that there was nothing due to the said respondents at the date of the said release. This case is easily distinguished from the one relied on by the majority of the court below. In Chandler v. ^'**«'"'°*- Ford the writing was addressed to the trustee, by which the trustee was informed that the cestui que trust was about to transfer the property, and a transfer was endorsed on the declaration of trust, both of which were in the hands of the transferee. Here, however, it is shewn the agent of the bank, McCutchon, did not in reality act on the words of the deed, for he states himself that he had searched the registry office to see if any incumbrance had been created by jr«%; in fact the covenants in the deed were inaccurate—the first two of them were broken as soon as made, and MoOutcJion must be held to have been aware of this fact, as he, of course, was well informed as to the fact of a mortgage being 'n exist- ence. It is putting the matter altogether too stron gr]y against the appellant to treat the fac- of the deed containing such covenants as a representation. The a|)pellanfc was, no doubt, responsible for the legal 460 ERROR AND APPEAL REPORTS. Bank of HontrciU V. nopklns. 1864. eifects of the covenants, whatever they might be, but ' not for the inferences which third parties might draw from the language of the conveyance, referring to Schoole V. Sail, [a) Pahner v. Hendrie, [b) Fisher on Mortgages, page 140. • Mr. Harrison and Mr. Hodgin for the respondents, contended that the decree was proper, and ought to be maintained on the following, amongst other grounds, namely, that the appellant, by giving to Kerhj a deed with full covenants for title, and for further assurance, enabled him to induce the respondents to believe that the appellant was bound to protect the land against their mortgage, and all other incumbrances, and if Kerby, by means of such deed, misled the respondents, it was in consequence of the act of said appellant in giving said deed; that it was the clear duty of the appellant, if he intended to restrain Kerh/s use of the covenants in such deed, to notify the respondents of the bond or agreement given by Kerby for a portion of the mortgage debt, or to have registered the same, as against the land, and he cannot now make the respond- ents liable for his own neglect ; that the respondents were under no obligation to enquire of the appellant whether the scaled instrument which he had given to Kerby really meant what it expressed, or whether there was any secret trust between them ; and as between the appellant and respondents, the appellant, in the absence of notice, is estopped from denying the effect of the contract plainly set forth in his deed ; that the covenants in the deed clearly showed that the appellant intended to throw the balance of the mortgage debt upon the remainder of the estate, and in the absence of notice the respondents acted rightly in recognising that inten- tion ; that in equity, the effect of the deed and bond between the appellant and Kirhv was to "ive the appellant a personal remedy against AV%, or a vendor's lien on the land; and for aU that appears the appellant statement. (a) ISch. &L. 176. (6)28Beav.841. Wi ERROxt AND APPEAL REPORTS. 461 theaD"enan -^^^^^^^ '^'' that 1864. X cuted bv ll' " "' r^ ^^^J"^'^^^ ^^ the release — coven 'in i, ; .'^^''^' '''^^ "°*' °^^'^"g to the Ho/i.. cov nants in the deed, enforce any part of the mortgage h ca foHlr^r"'""'"" ""'^'^^ ^=--t whol not ce of the 1 7 'l^ \"' ^'^'^^ '''' ^PP^"-^*, after notice of the release to Kerb^/, continued to make pay- ments to the respondents on account of the said mort- gage, and thereby waived his right to complain of the r ease executed by them, referring, amongst ther cases, to IToward v. JIudson, (a) Piokard v. Searl (7) Matdstone, (e) Young v. Grate, (/) ^^ parte Swan, {g) VANKOuanNET, C, retained the opinion expressed by him m the court below. «^pressea Richards C J.-The case . ^ Ford v. (JJundler is in my opm.on d,st:ngu.shable from this, for i^..^ merely -^«-t. tould bf 7"T " ' '^''^' ^^"^^^^' ^"'^ - that capacity would be hound to convey M to Chandler'e assignee A ransfer absolute on its face was presented to ll and in accordance with his duty, he conveyed the iari Te he d It h 1 '' ''' '''r '' ^''"^ ''' P-^ ^«-"- 1a .f T''^'^ ''• ^' ^^^d previously been advised by Chandler that he intended to sell the land and was therefore quite justified in carrvin. u haj he supposed was the wish of the reaf owner of tiL ' property. But here the Bank of MontreT could n under any circumstance. h«ve been co.ipelled to trans fer any portion of the n.,,o,od premise's to kZ or to release any portion .fthe.. to him, unless they had been paid the full amov. ,. the mJ^tgage monTy o hat ,„ th, respect v.hat they d-'d wa. .ot'dtno unS^fany l_egaI_o^^,on,_i^cu^t the reque.t of the defendant (a) 2 EU. k Til. Ki («.) 10 Ad & Eli. Ott, («) 18 C. B. 273. 60 page 13. 0?) 7 C. B. N. 0. 4U0, (i; C Ati. «i Ell 4oc)_ (1)70 B.N. 8.449. (/) 4 Bing, 263, VOL. II. 462 ERROR AND APPEAL REPORTS. ir'i 1864. The only ground on which it can be urged that they *"^|^^J^^ are not to be held responsible for the consequences of Montreal their Voluntary, and, so for as this defendant is con- Hopkinf. cerned, ofiicious act, is that the defendant, by executing the deed referred to, made a representation in relation to Kerhys purchase from him which was communicated to the plaintiffs, and that it could properly be inferred from that representation that the defendant intended to pay the mortgage money to the Bank, and tljerefore they were justified in releasing Kerby's portion of the property from the mortgage. As I understand the reasonable applicability of the rule on this subject, (which it is said is not properly an estoppel, but ia reduced to the somewhat homely adage that a man shall not be allowed to "blow hot and cold," in relation to the same transaction,) it is tjiis, that the representation must be made with the intention of being communicated to the party who acts upon it, and with the intention of having it so acted on by him. I have extracted the language of several of the judges in reference to this subject, which it seems to me will bear out this view of the rule. In Freeman v. Coohe^ (a) Parke, Baron, made the following observations: "If, whatever a man's real intention may be, he so conducts him- self that a reasonable man would take the represen- tation to be true, and believe that it was meant that he should act vpon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth ; and conduct by negligence or omission where there is a duty cast upon a person by usage of trade, or otherwise, to dis- close the truth, may often have the same effect." In argument he says, " You do not mean to argue that if any person makes a mis-statement without any intention that another party should act upon it, that in such a case he is bound;" again, "where a person makes a representa- tion under such circumstances that a reasonable man Jnigmtnt. (a) 2 Ex. 654. ERROR AND APPEAL REPORTS. m act upon It, then he is bound. ^«— v— ' Bank of In Bedford y Bagshaw, {a) PollocJc, C. B., says, nSl Generally ,f a false and fraudulent statement is J^l With a v,ew to dece.ve the pnrty who is injured by it, that affords a ground of action. But I think there Ls be always h.s evidence against the person to be charged, Viz., that the plaintiff was one of the persons to whom he contemplated that the representation should be made or a person whom the defendant ought to be aware he was injuring, or might injure." fully makes a representation to another, meanin/it to be acted upon, and it is so acted upon, that gives^i e o w at .called an estoppel. It is n'ot uite p ope ^ called, but It operates as a bar to receiving eviden e century to tat representation, as between tho°.e parties! ihe party setting up such a bar to the ^"'''^"*- reception of the truth must show both that there wa a wiu intent to make him act on the faith of the el sentation, and that he did so act." ^ rulfofhwth-'/V' '^"'"'^ '"^y^' "^' '' ' ""--«-! rule ot law that when a party makes a representation to another whereby the situation of the latte'rs a e d he 13 bound thereby. * * ^ V ^ p'e'rtL'tlUh!"'' '"""?^^ ^^'"'^ ^^ ^^^-- f-- class ol" '^; ''T "'''^' '""^ '^' '"'-y ""'««'-ou3 tars " K 1^7 f '; ^"^ '''^ '•''' °f ^-^-^ V. Sears. He added, referring to the judgment of Wood V. Cm Taylor y. The Great Indian Peninsular RaU wayCornpany^ (.) ^The party who claims t ben fit by this doctrine of estoppel must show that he has c ed int.e^ansacUon^hereliewas^^ece.edwithordi:^ 464 ERROR AND APPEAL REPORTS. 1 ,1 Mi 1864. throwing the loss from the party -who has acted with due "J^^^ care to the party who has caused the loss by wilful Montre.i imprudcnce must always operate to promote the sub- Hopkinj. stantial interests of commerce without producing any pernicious uncertainty." In the case then under con- sideration, he proceeds to enquire if the person who claimed that the estoppel should operate for his benefit had been wanting in ordinary care as to his part of the transaction. In the same case Keating, J., said, at page 441, " Had the parties against whom the application was made contributed to the misfortune by any laches on their part, or by improperly omitting to do any thing which could have prevented it, the case might have been differ- ent. In Edmumon v. Thorhpson et al, (a) plaintiff refused in January, 1860, to supply one of the defend- ants, Thompson, with yarn. Thompson advertised for a partner, when it was agreed between Blahely, the other judgineBt. defendant's father, and Thompson, that a partnership should be entered into between his son and Thompson on the 27th of January. After this agreement, Thompson wrote plaintiff that he had got u partner. On the next day defendant Blakely came to Thompson's place, and took a seat in the counting house ; gave orders to the clerks, and transacted other business to all appearance as a partner of the firm. On the 2nd February, Blakely' » father had another interview with Thompson ; said he had altered his mind, and wanted his son to be a clerk, and not a partner. To this Thompson assented, and the new arrangement was reduced to writing on the 14th February. Plaintiff, after the communication from Thompson, supplied him with yarn between the 9th February and 13th April, and both defendants were sued for the price of the yarn. It was held plaintiff could not recover, as Blakely was not a partner in fact when the yarn was delivered, and that he could not be considered as holdins? himself out as % cartn*? in f*ct t? the plaintiff, as it was not shewn that the facts in relation '(c)81L. J. N. S. Ex. 207. ERROR AND A»' iAL REPORTS. 465 elation to r'^'^' "'^ '^' '°"'^"°* °^ ^^^^"d'^"' ^n 1884. relation to ,t ever came to plai.uiff's knowledge, or that W^ hejas induced to supply the gooda on thf faith of ^ Hopklni. If before the Bank can bo justified in relensing Kerby^, ot It ought to appear that the ropresentation'was such hat a reasonable man would suppose that it was intended be commun.cated to the Bank, and to be acted on by them: was then this representation so intended? I thmk not. I need not repeat what is said by Vice- Chancellor^.,.n in giving his judgment, as to the prac- country, of using forms of conveyances which do not express the real transaction between the parties. Look- ing at the instrument as it is set out it seems to be the usual printed form of conveyance containing the ordi- nary covenants of seisin, and for quiet enjoyment. Now nothing in it was calculated to deceive the plaintiffs. Thev ^'1 'I \T'f "^ ^''' '^''' '^'' ^''^'^'^^ «o»veyed to ^«ar.«t ^erby by defendant were encumbered, and that in that respect the covenant was not true : they in fact were not deceived on that point. It cannot be supposed that the defendant intended the contents of the deed should be shewn to the plaintiffs, and that they would be deceived position."' *° '"'^"'' *^'"'' ^" '"^ ^''^^' '' ^^^^'^Se their It may be argued, however, that this representation or covenant that Kerb, might enjoy the premises free trom any mortgage, was a request to the plaintiffs to dis- charge the portion of the premises contained in the deed irom the mortgage. If such had been his intention it could have been much to do so'^ ''"' °"' ^^ ' '^°^P^' '''^''''' '' '^' ^'^^J^ I am by no means satisfied that the giving of t;-.e deed With the covenants referred to, exhibited so mucn reckless: • ' ''I s 466 ERROR AND APPEAL REPORTS. 1804. ness on the part of the defendant as was assumed on the '^^^ argument. If the deed were shewn to a stranger, notwith- Montr«»i standing the covenants which appear in it, he woii!d have aopkjai. searched the registry office, and would then learn there was a mortgage attaching on tliis and other lands held by the Bank of Montreal, and as a prudent man he would not purchase until that was rercoved. If i* was shewn to the Biink, the defendant would assume that the Bank would know that the mortgage was not satisfied, and would not act in relation to the matter until it was. I think if the Bank had acted with ordinary prudence they would not have been deceived by the mere use of the ordinary printed form of conveyance in the way they appear to have been. From the papers it appears that the gentleman who acted for the Bank as well as the defendant resided in Toronto, and the deed from him m utOl as the release by the Bank to Kerby wer^ <'S!;i'ji3ted at Toronto, and in such a case a Judgmwi. prutfent !8an would have obtained the direct authority of the defendant when he could have been referred to BO easily and readily before doing an act which might so seriously affect his interests withouthis consent. I think the plaintiffs' case fails as to the amount in dispute, because,looking at all the facts of the case, the form of the deed and the situation of the parties, no prudent man ought to have supposed that the covenant referred to in the deed to Kerby made by the defendant was any representation or request to the Bank that Kerby' i lot should be released from their mortgage, and that the loss which has taken place has arisen from their own laches, and therefore the Bank alone ought to suffer therefrom. I have en my brother Adam Wilson's judgment, and do not deem it necessary to touch on the points elaborated by him, but consider that many of his argu- ments have peculiar force against the plaintiffs' right to recover. BRROR AND APPEAL REPORTS. 467 res ondcn's are the assigness. was given upon a pro- -^ perty havmg 97 feet for frontage on Victoria Street! in £SS?,if, this city, by a depth of 122 feet. h„-,„.. This property was subsequently divided by the persons m possession and who were entitled to the er, of redemption into throe separate parcels, J^atrtck ,, the most northerly part, . onsiating of 41 feet fro.u.ge sisS^of'of r T^;"'"*' ^''''^ '^' ^^"*'«1 P'^'-*. con- sist ng of 26 feet frontage, and Kerb>, the southerly part, consisting of 30 feet frontage. ^ Patrick and ffopkins bought the whole of it jointly, Farzck retaining the northerly 41 feet for his share and conveying the remaining 56 feet t. Ifopkins for hi: share They were to have paid off the mortgage then jpon the premises, in proportion to their respective ^frVt' rr^'"'".' ^''"^''" ^^'^^ ^^^ Hopkins ^.% was to have pnid off the whole balance then due upon the respondent's mortgage, and he gave Hopkins gave to A.% a deed expressed to be in fee simple, and w th full covenants that the grantor was then seised of a per ct. absolute and indefeasible estate of inheritance in fee s mple without any manner of reservation, limitation, &c or any other matter to alter, charge, change, encum! be or defeat the same, and that he had full and absolute authority to grant, &c., to the grantee, his heirs and assigns in manner and form aforesaid, and that the fntnT I \T r ^ '^^'°"^' '^'''^^ P'^^^^'-^bly enter no, have, ho d and enjoy the premises, &c, without the let, &c., of the grantor, his heirs or assigns, or any other person or persons whomsoever; and that free Jd d ar and freely and clearly acquitted, &c., of and from all arrears of taxes and assessments, and all former ■•vS- IMAGE EVALUATION TEST TARGET (MT-S) 1.0 lllll^ I.I no US ■ 12 116 14,0 1125 i 1.4 2.2 20 1.6 150mm *A <5>> *; '^;> V c^^ '/. /APPLIED -s _ IIVMGE . Inc B 1653 East Main Street ^ Rochester, NY 14609 USA as Phone: 716/482-0300 ^ Fax: 716/288-5989 C 1993. ApDiiBrt Image. Inc.. All Rights Reserved # •^ l\ ^\ ^\ ^ 9) m ":^^:^' ^ "^ 468 KRROR AND APPEAL REPORTS. II- 1864. conveyances, mortgages, &c., &c„ and of and from all '"f"'^^ manner of other charges and incumbrances whatsoever ; Monire»i and that the grantor, his heirs and assigns, would make HopkiDi. further assurance. Hopkins did not register the agreement of Kerhy to pay the mortgage debt, but Kerhy did register the deed which Hopkins gave to him. This deed was of course manifestly untrue, as Hopkins, Kerby, and the Dank well knew. Kerhy could have brought an action upon it against Hopkins the moment it was executed, for it was broken as soon as it was delivered. The damages he would have recovered if he could not have been entirely defeated by an equitable plea would have been, how- ever, only nominal. Julgmcct. Shortly after receiving this deed, Kerhy applied to Mr. McCutchon, who was acting at this time as the agent of the Bank, with respect to this mortgage, for a release of his portion of the premises. The Bank, without requiring payment of the mort- gage money, which it had clearly the right to do, made a special bargain Avith Kerhy in which, among other things, it is recited that "it has been agreed between the said parties hereto that thirty feet of the said lot, number forty-five, should be released from the said above recited indenture of mortgage, and re-conveyed to the said Joseph T. Kerhy^" then the Bank, in con- sideration of twenty pounds paid by Kerhy, granted the land in question to Kerhy, his heirs and assigns for ever. Kerby registered this release, and sold the land so acquitted from the mortgage, to a bona fide and innocent purchaser. ERROR AND APPEAL REPORTS. 455 •and Which he had so long as it was in JTerAy'/hands • *-v^ himself h.\ '■'' f T'"' ''^'^y '' ^' «""buted fo Ho/i,.. t defl'; rin?"'' *'^ P"^^^ ^'^ ^-^/* hands to defraud h.m of the amount which he had not protected by registration or notice, but the amount of the mort him by the conduct of the Bank in releasing the l.nd to ir.%, without requiring from him payment ^fthc^Seb^ n.i!hT *l;',^'^"^^* ""'y h« '^'^^^ that they might or might no have released to Ker5>^ with or withoul pay- ment of their debt at their option; that although they need not have done so without payment, and could not have been required to do so, yet they might if they pleased release without at all prejudicing their right upon the rest of the land for tlieir claim, because they say they were induced to believe, and did believe, that JJopkina had undertaken to acquit Kerby's land from '"'^•»*- the mortgage, and to assume it himself, from the nature and character of the covenants which he had entered into with Kerbi/, and that they had no notice of any thing whatever existing between Hopkins and Kerby to alter or modify the effect of these covenants, and as they have been induced to grant the release innocently and in good faith by ffopkins' act and means, he must bearthe loss ,f any there be, which has been occasioned by his own deed, so calculated to mislead, and which has in pomt of truth misled them; in answer to which SophMs may say that, however his deed might have imposed upon others who did not know of the state of accounts between him and Kerb,,, or however justified the Bank might have been in entering into any new transaction with Kerb^, „pon the f ,ith of this deed being entirely true, it could not warrant the Bank iu --._a„!ng on Old .cui„i mmoin payment, unless at their own peril, as to what the actual condition of things then was between Kerb^, and himself. That in fact it was VOL. n. i 470 ERROR AND APPEAL REPORTS. 18,04. the duty of the hank to have insisted on payment before ^T"^^"^ giving the release, and as in truth they have injured Montrwi Hopkins by this breach of duty, they must bear the Hopkiiu. consequences of their own malfeasance. And the question is ^hich of these views is the correct one? If the Bank in dealing with this old debt is to be considered in precisely the same light ns a purchaser vrithout notice, or ns a new mortgagee in advancing a fresh loan, the respondents should succeed ; but if they are to be treated ns trustees ol the owner of the equity of redemption, whose duty it was to render to him the land mortgaged, upon receiving pnyment from him, and who lost their right to call 'for the debt whenever they had deprived themselves of the power to render up the pledge, then the appellant should prevail. The cast of Ford V. Chandler was relied upon by the respondents as a case directly in point in their favour. It will be observed that in that case Ford was a mere trustee for Chandler ; when he conveyed the property to Codd he had done all he was bound to do, and this he was compellable to do upon a duly executed trans fer of Chandlers rights and interests. He had no claim or lien of any kind upon the property for any debt or demand against Chandler or against any other person interested in the property ; so that on releasing the trust estate he could or might jeopardise or preju- dice the rights of others by any individual claim to be afterwards put forward by himself: and moreover, having been told by Chandler he was about to sell his interest ; he saw by the assignment that he had actually done so, and nothing can be plainer than that the assignee stood in the ai signer's place, and was entitled to get in the dry outstanding trust which was in Ford's hands. Whereas in the case in hand, while the Bank was a trus- Jadgmtnt. ERROU AND APPEAL REPORTS. 471 tee ior Hophns they were also his creditors and the credi- 1864. tors of all others interested in the .property, and if by ^->v^ releasmg the land to Kerby, who had not paid them their A'"oS.V/, debt, they exonerated the security or fund which was lopW answerable for it, they cannot hold Bopkina or any other accountable to them for its payment, because they cannot now deliver over to him the lion which tbey ought to have preserved for his benefit. If this act can be justified as against Sopkins so as to sustain this foreclosure suit against him, it would be equally justifi. able agamst Morpht^ the mortgagor; and the Bank might assert the righi of releasing the whole land to Banscome w.ihout payment from him of one shilling of - the money and then demand the whole debt from ^orphi/, although they could not give him back the land for h,8 indemnuy. This would be really making a gift to Banscome of the land and making Morp/,^ p,,y for the g.ft. The same thing might have happened again when Banaeome assigned to Patrick, ar I surely it can be no answer for the Bank to make, that by so general ^"^•"»' an assignment being m«de they were induced to deal With the assignee as the owner of the property acquitted from the mortgage debt, and to treat the assignor aa alone responsible for that debt, for they were not bound to treat the assignee as acquitted from any portion of the debt. No one could acquit him or his land from that debt but themselves, and it was their own interest If not the.r duty, not to have acquitted him without beirig first paid, unless at the risk of giving up all claim upon every other person, in respect of the same debt, who might happen to be affected by their act. And so in like manner the same rule must apply in the c.se of Kerbt, the purchaser or assignee of a part of the premi- 8C8 as m the case of Banscome and Patrick, the «88ignees of the whole premises. The Bank was bound on production of an assignment or deed from the person who had the nght of redemption to treat the purohasor or assignee as the representative of that right which the conveyance professed to grant, and to permit him to if.t 472 ERROR AND APPEAL REPORTS. 1864. Bai k of SJoDtreal T. Hopkln). Judgment < pay the debt if ho offered to pay it. This was all the Bank was bound to do ; and more than this — this was all the Bank ought to have done or had the power to do, where other interests were concerned. The Bank had not the right to discharge one foot of the mortgaged land to Kerby, to Hopkins' prejudice. Tliey were not imposed upon, nor could they have been by the produc- tion of Kerbi/^a deed, because they were not required by ii in any way whatever to release their claim. Hopkins may have released Ms claim as he had a per- fect right to do if he pleased ; but what had that to do with the Bank claim ? Their place was still to have given up nothing without being first paid their demand. This being their plain and manifest duty, it would have been supposed that it would have been alike their interest to have pursued su6h a course. All that was required of them was to mind their own business and not concern themselves with the affairs of other people. If they had taken the money from Kerhy before giving him the release, Hopkins and Kerby might have settled their matters without trouble or loss on either side ; but if they were determined not to mind their own business, which they did know, but to undertake the settlement of the transactions between Hopkins and Kerby, which they did not know, and were not required to know, they should have taken the precaution to have informed themselves of the nature of these transactions before they dealt with them. By thus doing what they ought not to have done, they have done it not only, badly, but wrongly, as might have been expected. They have re- leased a debtor without enquiry and without payment : and the fact is now apparent that they have released the wrong debtor, and as they have done this voluntarily and officiously, it is right they should bear the conse- quences of their own act ; and as they have set Kerby loose from Hopkins, they must set Hopkins in turn loose from themselves. The argument of the Bank is and must be, that if they are the assignees of a mortgngft, say for .£10,000, and the assignee of the mortgagor, ERROR AND APPEAL REPORTS. 478 who has not paid a farthing of his purchase money, and i864 who has covenanted with the mortgagor that hewH p^y ^ d ed tot : ''' "°"'^-^«^ "'°"^^' ^^°<'-- *« ^'^^ -- covenant - I "'°'"'^"^'''' ''''^ '"" ""'^ ""^"'^^'^^d '^°''"'* covenants such as are contained in the deed to Kerby that without not ce of any kind to the mortgagor tf^ may grant the land to his assignee wholly discha Id rom ^ aebt of ^10,000, and yet .ue'th'e m^^^fo upon h.s covenant at law, and recover it from him • although they cannot convey to him H.n • ' of .he land f„. M. indo™,-.,, L:^:Z^^Z:Z the whole a,„o„„. of l.i, debt, „„, wholl/br hZlnZ hM, wuho-t .„y special rcq.e« upon ,hem and wTho„t h power of any one to tnake such a request, oo™eved ' the land away „..thout first procuring pay^ei, of Tl This I think, is rather a serious proposition to b„ adopted as law. and yet it m„,t be so adopted, if .hj '•*— decree is to be maintained. ' °" The case of Palmer v. Hendrie is .in »...i. •. . to Hendne: P^mer then assigned his equity to 5.2 ^enrfn. and Hughes then demisod to purchastrT and ^..jeMhe owner of the equity, with'th c 'n "of ^.«in., the mortgagee, received the purchase moLv and misapplied it. The mortgagee afteLZ^T,^ mortgagor at law on his covenant; the mortgag fi Ld his bill for a perpetual injunction, as Bughe, had received more money than the mortgage debf and the injunction was granted. ' °" *^® The Master of the Rolls says :-'. The mortgagee can- not, If he has allowed the purchaser of the efu tv of redemption to receive the purchase money 8u7th! original mortgagor for the amount of the mon J !». u he has thus allowed to be paid to such pLha:^ ""^1 4t4 ERROR AND APPEAL REPORTfl. 1964. is one of the first principles of equity." The difference 'T^'C^ between that case and the one in hand is, that, in that Bftnk of ^ ' MontrtBi case, thc mortgagee allowed the owner of the equity to Hopkini. receive thc money; in this case the mortgagee has released to the owner of the equity without requiring the money from him, and in both cases the mortgagee claimed the right to fall back upon an ulterior party ; in that case it failed, because the attempt was "in viola- tion of the first principles of equity." The Master of the Rolls also says : — " It is then said the plaintiffs ought to have given Hendric notice of the assignment to Hughes, but nothing is more common than for the owner of an equity to sell it without giving any notice to a mortgagee, and nobody could consider this as a badge of fraud, nor do I so consider it." Judgment Most of the cases which were cited for the respon- dents apply to representations, express or implied, by act or writing of the party, which are claimed to be ' binding upon him by reason of another person having been misled and having acted upon such represen- tations, as explained in the case of Piekard v. Sears, and the numerous subsequent cases in the same branch of the law, but they have no bearing what- ever upon this case, because nothing which Hopkins had done was intended to induce or should have led the Bank to discharge Kerhy or Kerh/s land from their own debt. The cases in 7 Common Bench N. S., and in 9 Common Bench N. S., are cases not applicable to the present one in any way, nor are those in 8 Jurist ]N. S. It is to confound two very distinct transactions and responsibilities to say that because Kerby, with the possession of the deed, could have bound Hopkins to discharge the land from this incumbrance as against a bona fide purchaser without notice, that he could also authorise the Bank to hold Hopkins alone responsible for the debt upon their releasing to Kerhy. ERROR AND APPEAL REPORTS. 476 The case .3 rather that Hopkin, had two securities: 18fi4. one to himself, and the other to the Bank, either of ^-vw which he was entitled to avail himself of ; having lost the ^o^.'i^ benefit -fliis own mortgage by his omission to register, Uo/uo.. he 8U1I had the r.ght to fall back upon the protection of the Bank mortgage, and the question is what right have the Bank, holding him as a debtor, to discharge his security without his consent. There are some few principles in the absence of a direct decision which can scarcely be hoped to be met with in such a case, which will, I think, sustain the opinion now expressed, if authority be required, when it should rather have been supplied by the party seeking to maintain the present decree. • • The Bank can have nothing upon their mortgage from any one, " but on the condition of rc-conveyincr ." Schoolev.Sall, and Tasker v. Small; {n) and this they cannot now do. Nor were they compellable to release a par toftheproperty,evenonpaymcntofapartofthedebt, Ja4«i»nt. for the mortgagor must pay, or must redeem altogether or not at all ; Palk v. Clinton, {b) They cannot, therefore, now re-convey the property mortgaged in its integrity: the mortgagee can take no benefit of a covenant between the mortgagor and a vendee of the equity of redemption that the latter will pay the mortgage debt, for the mort- gagee ,3 no party to the covenant. Butler v. Butler (c\ Barham .Earl Thanet,iJ) ^- p. Keigljy re Stockdale\l Nor can the mortgagor take any benefit of an acknow- ledgment of his title made by the mortgagee to his assignee for the purpose of avoiding the Statute of Limitations, because the mortgagor is no party to the a^nowedgment. i...«v.i>..^„/..„,(^)5,^^^^^^^^ M^ddleton [g) The mortgagee cannot be redeemed by one who has only contracted to purchase the equity of redemption: as between the mortgagor and his vendee (a) 3 Mil. & Craig 63. <«j 5 Ves. 634. (*; 3 DeO. & S. 583. (9) 6 Hare, 76. (6) V^ Yes. 48 (d) 3 M. & K 607 (/) 13 Sim. 584. 476 ERKOR AND APPEAL REPORTS. 1864. the latter has the title in equity, but the mortgagee has ^^^^^ nothing to do with their relations: he can only deal with Montrau the vondce when tlio latter has acquired the mortgagor's HopkiM. legal title to ither to have been a private bargain, of which, in con- (a) 17 Jar. 161 ; 3 DeQ. M. & G. 293. (6) 2 Phil. 41. KRROR AND APPEAL HEPORTS. 477 •ideration of tho premium of £20 to thcmsolvos, they 1864. acquit tho land, than as influenced by the absolute cove- nants which wore contained in his deed. 4 f' Uank of MoDtrMl T. IlopUiu. I am not satisfied they have dhcwn any excuse for discharging Patrick's land and leaving Ilopkins solely liable for Patrick's proportion of tho debt ; and I think that whenever tho Bank incapacitated themselves from assigning their mortgage in its integrity to the person whom they called upon, or whom they would otherwise have had the right to call upon, for payment of their debt, that they lost all claim to the debt itself, for it ig only by reason of their position as mortgagees that they are creditors at all. Because, therefore, tho Bank by their voluntary and officious act have prejudiced tho appellant their cettui que trust by discharging Kcrf>//'s land from their mortgage, they must be held to have discharged the appellant from the debt also, and I think the judgment •'"*'«•»«»• of Vice-chancellor Estcn should bo affirmed, and tho decree of tho court below reversed. I may add that I think I should have come to this conclusion without hesitation if it had not b-rn for the contrary opinion of the two learned judges ii uie court below, but I cannot say I have been at all convinced by their arguments, and in my opinion tho decree should have been in favour of the appellant. John Wilson, J.-The respondents aro the assignees of the mortgagee of a piece of land for a given sum. This land, subsequently to the execution of tho mort- gage, was divided into three parcels, and owned by three parties, in the proportions of twenty-seven, thirty, and forty feet, measured on the front. It is admitted on all hands that each of these parties stood chargeable to the respondents with tho payment of a rateable share of the debt due on the mortgage, in proportion to the ^2 VOL. II. 478 ElinOR AND AI'I'KAL REPORTS. ^^^ qunntlty of lan.l nhlch they severally heM. The respon- n.Dk of ''*'"t8 could not rolc.iso any of tliom to throw a greater Montr... siiaro on the others without their consent. All this the Hopkin,. respondent, admit, but they say, '« You, the appellant, represented to us that you had no claim on the land as against Kerhi/, to whom you sold it, and on this repre- sentation we released him." Now the question is whether the deed of conveyance, with the usual covenants, from the appellant to iiV%, was such a representation as justified the respondents in releasing Kcrbi/ and charging the appellant with his share of the money duo on the mortgage. As I understand the law of representation, it amounts only to this : thiit if a man represents a certain state of facts to exist, which really do not exist, with a view that they shall bo acted upon as existing, and the party to whom it is made acts upon that representa- tion, he who untruly made it shall not afterwards Jodpaent. be permitted to deny it. This deed did certainly on the face of it carry out the idea, that as against the appellant the land was unincumbered, but the other ingredient was wanting. It was not made with the view of the respondents acting upon it. It was a representation as between themselves, which Kerbi/ himself would not have been allowed successfully to hold as true against llojykim. It does not appear that the respondents acted solely on this representation, for they took .£20 for executing the release ; this they credited on the mortgage, but it was not a nominal consideration. It was such a sum as no man would have paid who was of right entitled to be discharged from the incumbrance, and the payment of it, or the willingness of Kerhy to pay it, in the face of the representation which he held as entitling him to a release, should have made the respondents pause and enquire, as otherwise it wiis their duty to do. I concur, therefore, with the learned Chief Justice of KRROR AND APPEAL IlKPORTS. 479 the Common rien., that it was not hucI. a rcprcsontntion INfl4. OS authon.ca tl.o releuHo. and with .ho Icarncl Vieo- wl to ;"""''",^f' "' ^^ '^ ^^'"^ »•'<• -luty of the respondents S^r!^ to enquire before they executed it. „„p;-,„,. revltd.'' ''"•''"'S"^"' '^ '•'« ^^-^-^ l>olow ought to be /Vr (;umm.-Appeal allowed, an.l the decree of the court be ow to be varied by introdueing a decLn t on ^erem that so much of the mortgage dolt as it tz Kerbi, .n the pleadings mentioned was boun.l by the . . . terms of the agreement with the defendant CV.' /Z! "'"•" McGuFFiN V. Ryal. iVb The bill in this cause was filer! by Victor Oolborne Harvey against Eobert Smith (the younger) and her *The court, in pronouncing judgment, expressed a desire that in appeals the origma' style of the cause should be retained, and that the profession on, knowing the views of the court in this respect would adopt the course suggested : their lordships not deeming it of Buftoient importance to make any formal order of court on the subject. BRROR AND APPEAL REPORTS. 8, m the 8rd concession of Haitkcsbnrv t.L^ 7 .u '•'»• pnco of 12s. 6J. nor aero „,„ ii • •'^ * °"> f""" ">« 'ke price, e'nZi it pes ess ™ !„!. " ™*'"™' " Pfemises, cleared T; ,„ V ? ■ """P"'™ of the thereon ; and ,1 1" ""'' ""'" " '""''« "»'» ''»™ tied pra tice of to Crorr' '""'"*'"« '" "'" «»■»«- of the slipnlaLd pricrro ' ^' •"'' ''"f"^''' ™ P'^""™' the Crown as 1!,! "'"" "'""'"te «™nt from "ndor his hand ™d' setf ' ?""] ^" ™'™' ""^ """■•« oonveyodZTntres t »rr;"1^ -«-' ^"^ the plaintiff) who wen in!o „ ' °"'^ C""""- »f 'ke -„e byhimsllf ts'eTar"°'r'\™'"'"'''' — «■ which happened in 1840. thaTr Vl *"' ''"'"■• "•J/ died intestate Ieavil',1, • '""' ^o""" Bar- koir-at-Iaw, his wM ; „3 '„! f'"'*' *"» °»lj' "on and Wm surviv ng, but no t» f"" "' ""'" «' ^i". ever granted ?f 1 ,1" e'on ~ t't-'t" "^« death of his father h.. ®^''^^' t'^at plaintiff, on the J^is father, iT'Z', tTL '^ f ^'^ ^^^^ of could take no part theiSn ,„. r '^ ''I °^^"*^^ '^^^ ' she had no title thereri]/ 1 ' ™°'^'''' ^^'^^ough f -of fro. ti* tr isi To :id 'r-' ''- ^^ '^^ demise made by his father n..i ^ '™'''' ""'^^^ '^ demise his motLr ei^ored il ' ''P"^*'°" '' ^^'^^ «es in the year 1840 T, P°''''''°" "^ *h« P^^^i- agreement or underrndfnlf ?''''" "P°" ^^'"^ t^e particulars ther&Srrj^^^ ~j^~~ — .^^x io^o M/amund Marnfin 4«1 482 ERROR AND APPEAL REPORTS. 1864. induced Vigner to execute to him an assignment pur- porting to assign his interest, as purchaser from the Crown, in such half lot for a nominal consideration of ten dollars, upon production of which to the Crown Lands Department and payment of the balance of the purchase money due to the government a patent for the premises was issued to Edmund Harvey in his own name, he having concealed from the government the various facts stated, as shewing the title of the plaintiff, and which, had they been communicated, would have induced the government to refuse to issue the patent to Edmund Harvey. That in 1858 Edmund Harvey executed a mortgage of the premises to his brother Henry Harvey, ixf to secure a sura of money alleged to be due to Henry by Edmund ; and that subsequently a release of his equity of redemption in tlie premises was executed by Edmund to Henry ; and charged that Henry Harvey had notice of the claim of plaintiff before the execution statement, of such mortgage and release of the equity of redemption. That subsequently to the execution of such release, and while plaintiff was still an infant under the age of twenty-one years Henry Harvey, by indenture, conveyed the premises to the defendant Smith in fee simple, who thereupon entered into possession thereof, and has since continued therein and charged Smith with notice of the various facts above set forth before the execution of the • conveyance to him, and before the payment of the con- sideration therefor, (if the same had been paid,) and submitted that under the circumstances the plaintiff was entitled to have the patent and the conveyance there- under set aside and cancelled, and to have a patent of the premises issued to him ; or to have the defendant Smith declared a trustee and bailiff for the plaintiff, and to have a conveyance of the premises and an account of the rents and profits from him. The prayer was for relief in accordance with these statements, and also for an injunction to restrain Smith from alienating or incumbering the premises, which the bill also charged he intended doing. ERROR AND APPKAL REPORTS, forth in the bill • .1 , , ''"^ ^'rcumstances set ^-— frauds and pe' He Tna r'H'''''' '' ''' ''^'^'^ ^' """' having been a S'..? ''^"''^^ ^''^^ *^« ^^^le paid and satisfied the whole of t he ? '^ '^' ^' ""'' therein expressed and H r f °"«'^^^at»on money leased hi.\S,Tht n^ ^ d "^'"f ^"' ^^ benefit of want of notice on tTe 'pa -oft " u' ''^ before he obtained his conveyance of 1 "'^ "''"'^ ' paid the consideration therefor" '''''""'^' ^'^'^ The Attorney-Gcneral answered statins i,- • ranee of the matters and things etlrinfhebm^'"^^^ claimed to bo dismissed with L costs '''^ The plaintiff havinir nnf f J.« « .a™ ,L for ti. e":Lr.i : ™Lr:rd hf -"'^ at the sittings of the court at Cih ''""^''^^"'^^ bearing as a witness for the nininfiff , i • , • ^ examined "I was a brother of' Lt^^^'Jf ''^^^^^--' --e, at one time in possession of S^nfr?^" '"^ ^^«« here; I entered into persona oil°^^''"^;",q"««tion 488 ^ ,<*••({ here ; I entered TnTrZ.o"' 7^ ^°' °* ^'^"^ '" question - the deXtf't Ste,-r li-P'- ossession of the nkce h«fn™Zf ','''? ^^l^'ered after n>e possession of t 'e' J retfo.?!^ '/^'t ^^"^^^^^ jear after her husbaifd -r/.i^ ' ^\^^^'b, about a father of the defendan u£ T ' *^'?*^ ' '^''^^■^>''. the place from Irst ;,:!,?/" «» i^ ' I bought the husband's claim/at 1 '.si kno^fT".? '^'"''^^ ^'' brother bought the place he nut V^vf'^'' ' "^"'^^ "^^ the widow delivered me ill ^ "^^ ""^ «« f«>-»ner ; Smith; and f^^om XTtimi br''?'" ^" Presence of crops; one or two seasons mvLr'"^ T \'^^'' ^^ ^be «y >hare of the crops "..^-t'' ^"?^''^ ^'^^ ^^^7 remained his term Tl r'ee ! ."^ron T'^f ''' ^^^'^^ haps something m'ore, and^ h n' ?eft tfr^'/^^.P^^- put on Valois to work the fZ if sWo' "th"'' '"? '4^^"^^'-^ ,,.„,— --^i;^h^me; J ana Of the plaintiff, rights. KXISL^E^:^:;;^' -J! 484 1864. EtaUneni ERROR AND APPEAL REPORTS. place, and after my bargain with the widow ; when I bargained with her I got all the papers belonging to the place ; I was advised by another man to get the paper from Vigner, to whom I paid two pounds ten shillings for signing it ; the widow got the first year's crop from Smith after my brother's death ; Smith was harvesting when my brother died ; as far as I could understand my brother put Smith on the place ; George Clifford 'lad it before this ; I heard that my brother bought tht place from CliJ^ord ; I was from home when he bought it, and learned it on my return : my brother was sick at the time, and frequently asked me how Smith was getting on with the farm. * * * * I was to pay the widow for tlie lot, but no amount was mentioned, and I never paid her any thing ; I went on to the lot and lived on it after Smith left ; I made it my home ; took Valois on to work it ; he and his family lived in the house with me j I think Valois remained on the lot for at least five years : I then commenced to farm it myself, and remained in possession till I was ejected ; I either got the papers from Vigner while Smith was on the place, or shortly after he left ; I had previously gone to the government office at Kingston — the Crown Land Office, I think, witli the papers I then had, which I had got from the widow of Thomas, to see what I could do about the lot ; I was told by a man there to go to another man, who advised me to go back to Vigner and get a transfer from him, and not to show the other papers ; I sent the transfer from Vigner to the Crown Land Office, and got a patent to myself; * * * * at first when I bought I thought the widow could sell the lot ; my brother Henry lent me some money on the lot; I gave him a mortgage on it; he was living with me at the time ; I was not sure at the time I so borrowed that I had a good title to the land. * * * * I was sued by my brother before any agreement with regard to it; *• * * I could have paid my brother if he had given me a chance ; his refusal is the cause of this trouble here to-day ; had he agreed to give me time this suit would not have been brought; I could have settled with my n'^'^hew ; a year before my brother and myself quarrelleu my nephew, the plaintiff, told me he would [not*J put me off the *Tbe word " not," it is evident from what follows this passage, had been omitted in taking the evidence ; in additieu to whicii this witness in a subsequent part of his evidence swore that the plaintiff, >n cod. BKROR AND APPBAL KEPORTS. place ; but he said Senr^i wo» ^ • would yet have it; fT^/^^ Pressing me hard and 1864, the patent I wanted to nav »n Zhf ^''^' ^^'^^ *° get v-v in my brother's name! Sd Ittt ""^l '^f .*^« ^'^^^ ^ name ; I did not know hof I t ff*'°* ''^ "^^ ^^^ «^' myself, and it was then suilJ/f"'^ ^et a deed to fer from llgner in m? owf^''''*^ *°/°l*° g^t a trans- get the land% payil^ ^^V^^^^ 5 I thought I could what my brothe?/ad^pai5 '^^tr^v' 1?^ ^/^^^^ back was wrong, and two orlSj^ "-^ *^*er found out I got the pften?,Va:r dl 5 llTtfaT, 7t '^''^^ ^ nothing about it, but trv anri "^"^.^^ ^, had better say way; this was I'ong bf^rel f'/'''''^'^ "P in somj brother, long before I ^ave mfi! ?/ "^^^'^ ^^o'" ^7 told my brother of ^f Jthaf I thl';''.? f °^*f ^g« ' I It with my nephew ; * * * VT^^'^ ^ ^'^"^^ settle advice my brother mnrtj and T k i'l if ?®"^"g tbis matter; I had spoken S an Ji, ^"^ **^^^ «^0"t tbe told to keep it secret Tltr^T^^^ "'^'^ ''e^ore; I was from V,,nl some" da'y or Xr' f J!* "^ *'*/« righ" tbink that rimer mi/hf LI i' """' sometimes to I think I oofy mSlT,! ''"^ ? """^ """We B« ; JXT '^' '" "^ ™° »'"»" «"ffi«i»«y in tl.e P-attiEtfeatr ™ "f » f-«of the ca™ «, heard IfLrh',""'""' ''''"^ """»» ""« forth, obaerZ f ^"'™fly »'ati.g the facts abeve set '■.eti»ehe;;ts:,tMht'Zf'-''' ""'"■" »"t: the onlj evidence of tttW '^5 !' "»' "ad' examination of the i„t^„A \J . ^'"^^ '7 ""e ttat can be obtained frt h ^is Tf ' "" ""^ '°°" !>« was quite a youth hT t ^' ^™" '«»' "'"» bourEbodihatth^wL f t ''°°"'" '" *<' ""igl"- plaintiff claimed or had at ,' "'"•' ''™''' "■«""» VOL. II. 485 486 1864. ERROR AND APPEAL REPORTS. after the sale and deed to himself ; that Edmund having had the patent for some years, and having been BO many years in possession of the land, he assumed that a title derived from him was good ; and in this assumption I think he was justified as against mere vague reports which he had heard years ago— to which he was under no necessity to pay anv attention— which did not come from any one interestt the property— which may have been nothing more tuan the gossip of the neighbours, and which it is not shewn here or from any circumstance in evidence must have been present to his mind when he made the purchase. But it is claimed that, nevertheless, the plaintiff can enforce his equity, inasmuch as the whole of the purchase money has not been paid by the 'defendant ; and this, as to £75 of it, I, after some doubt, find to be the case. That sum of £75 is represented by the note of the defendant's father, which the defendant swears was taken by Senry Harvey in lieu of his, the defendant's own note, and instead of a mortgage, f jr the convenience of all parties, as the father was considered good for the amount, and near to or on the spot to make the payment when it fell due, whereas the defendant was frequently absent from home on his business ; and it was arranged that the father was to provide money to pay this his note, or to recoup himself for it, if paid with his own funds, out of moneys which he was to collect upon cer- tain promissory notes belonging to the defendant, and left in his hands for collection. This note of £75 is still unpaid and in the possession of the executors of Henry, now dead. Whether it was or not a negotiable instrument does not appear. But however that may be, it is unpaid, and has never been transferred ; and as it was to be paid in reality with the defendant's own money, and the defendant has it in his power to prevent its being paid, in order that he may not be called upon to re-pay his father in case he pays, or that his own funds in his father's hands may not be appropriated to the purpose, I think I must treat so much of the pur- ERROR AND APPBAL'rEPORTS. 487 T. Smitb. chase money as it represents as still outstanding and 1864. under the control of the defendant ; and that this being W^ so the plaintiff's equity is let in, and entitles him to a ^-"' decree restoring him the land of his ancestor. It may be a very harsh equity to administer when, as here, the grea er portion of the purchase money has been ^aid But the rule is too well settled as a doctrine of equity for me to attempt to shake it, and my duty is to apply It when he facts admit of it. Here the defendant short y after his purchase, received direct noti e from the fact, that any improvements had been made by him on the premises. It does not appear what improvfmen" may have been made hy Mmund ffarvej^ ; nothing was said about any allowance for them, or'l'hether if 1 S to apply to this case the decision in Bevis v. BouUon (a) If u is desired to raise any question on this head It can be spoken to before me on settling the minutes of the decree. ^ I think the plaintiff should not have costs. It is true t.l 7". ^'""' 1 '^' ' ^''' '' t^^° l^«fo^« tbe sale to the defendant; but long before he came of age he was aware of his rights, although he may not have had possession of the evidence with which to support them. With this knowledge he allows his uncle Mmund to remain in possession as apparent owner, telling him he would not disturb him, but that if his unclf ^T..; thL'I T 'Y-^'T'^ ^°^ «J^«ted his brother, and his after the plaintiff came of age. But stiU the plain- tiff does nothing until after the defendant, six months later, had made bis purchase. I cannot say that this want of action on the part of the plaintiff disentitles him to relief; but at has led the defendant into the difficulty; for bad the plaintiff been more active the defendant would have known of his claim and not have purchased. An infant of an p^e and of intelligence (o) 7 Or. Ch. R. ^. ' 488 &RR6R ANi) APPEAL REPORTS. 1664. sufficient to understand hia own rights, is not allowed any more than an adult designedly to mislead another ;* and though there was no design here to mislead the defendant, yet he suffers from the plaintiff having been very inactive ; and I think the plaintiff must share so much of the consequences as to bear his own costs. From the decree drawn up on this judgment the defendant Smith appealed. Mr. A. Crooks, Q. C, for the appeal, contended that the decree so pronounced should be reversed on the grounds that the defence set up by the defendant in the court below was duly provtJ by the evidence taken in the cause, he being shewn to have been a bona fide pur- chaser for value without notice of the equity set up by the bill ; that he is fully protected by his legal title against the alleged equity of the plaintiff, which equity, however, the plaintiff had failed to establish by evi- Arjfwn'nt- dence in the cause ; and that the proceedings to set aside the patent referred to should have been by and at the instance of her Majesty's Attorney- General. The plaintiff comes into court claiming that, upon the footing of an agreement, Edmund Harvey was a trustee, which it must be inferred the plaintiff adopts ; he also founds a claim for relief on the ground that the grant from the Crown had been issued through improvi- dence and mistake. The defendant contends that Henry Harvey was a purchaser for value without notice. His lordship the Chancellor assumed notice, but that it is submitted was not proved. True, Edmund Harvey says, that he told his brother Henry all the circumstan- ces attending his obtaining the patent, but his evidence must be received with extreme caution under the circum- stances. Now, notice to be of any avail must be distinct and unambiguous. Eice v. Bice, (a) Barnhart V. Cfreenshields. (b) (o) 2 Drew 73. (6) 9 Moore, P. C. 18. * See also on this point Leary v. Bose, 10 Gr. Ch. B. 846. BRBOIt AKO APPllil, BBPORM. point tho wtoe, ,1 " I T"/ ,'"™ P"''- 0» *"■'■» WM paid in cash at thlllJnLfJeX "j "'""^^lO* my own notes for £175 Mri T„v It ''"'''i ^ ««™ who, for the reeidw, give 1 „!, '°V ?'5'' "J^ =''°' parties; the balance llOoT... •'','""' "f other "-as examined in tT; tiil? «""""»i '"' "■" ««o was offered a miVale K? ^J'' .■^''"■* -»'»™J' was no part of the bariah, tt ,'"/'"'"'^ ""^ »<"«»• ^^ land in secnritv-ncS „ 5 ?™r^ ""' " hold the 0- wa, or th^e o^? Z i^ is'tn' tSd'T^'t rejected by, hin,. SMaJytjuJs^A V"'' baWle^lntX'^tr/" T""™' »' "» lien, which tho vfndor 2ht It '"'"^'°'' '" '"°'' the purchaser was discha^^d frctTlia "^ "' f .0, it is difficult to see how'.he Cd !„ tmli ^"f ' to any extent. He also referred to »n J '° _!?Lf!!!l^!i^fl^ontra, contended th., .he AlflUMBt (a) 11 C. B. 191 (c) 10 lb. 659. (ft) 6 Jur. N. S. 977 {d) 16 Bear. 850. (•f)2D.&W.31. («) 6 H. I. Ca. 905 riii 490 BRROR AND APPBAL REPORTS. 1864. ArgDB«nt facts alleged and established by the plaintiff entitled him to the relief given by the decree appealed from, the defendant not having suUiciently set up the defence of a bona fide purchaser for value without notice, and that defendant has not shewn himself entitled to set up such defence within the meaning of the rules in that behalf ; nor is he entitled to the protection afforded to such a purchaser. The arrangement was never adopted by the plaintiff to any extent. On the application by Edmund Harvey for the patent to issue to him, it was not the case of con- flicting claims for the same property ; but Edmund represented himself to the department as being the assignee of Vigner^ the original vendee of the Crown ; this the evidence distinctly proves he was not, and therefore it was correct for the plaintiff to allege that the patent had been issued through improvidence and mistake on the part of the Crown : indeed, the plaintiff is prepared to assume a higher ground for set- ting aside this grant ; the evidence of Edmund himself affording ample proof that he had obtained the same by fraud and misrepresentation. Phillipa v. FhilUps. (a) Counsel also contended that the defence of purchase for value without notice was not sufficiently set up by the answer ; and the defendant's own explanation of the transaction, when examiaed in the cause, does not establish it ; and his evidence, such as it was, was not given in such a manner as to impress any one favourably as to its correctness. The effect of the whole transac- tion was, that Smith the elder was simply a surety for his Bon, and it is incorrect therefore to treat this as a case where the note of a third party was taken as and for payment of the land. The reason assigned why the father's note was given was for the convenience of pay- ment, as the defendant would probably be absent at the time it fell due. Had a mortgage been given Henderson V. Qravei (6) shews the right of the plaintiff would {a) 7 Jur. N. S. 1094, S. C, 8 Jur. N. S. 145. Xb) Ante page 9. KRROR AND APPBAL REPORTS. 491 H»nr»y Inltb. have been .rre8,8tible. Now, the same witness who 1884. proves the taking of the notes also establishes that, ' but for the expense, a mortgage would have been cre- ated m favour of the vendor ffenry Harvey, besides which the notes themselves were to be retired by the fa her out of the proceeds of notes left bj the son for collection In fact, they were to be paid with the moneys of the defendant. TiWe«% v. Lodge, (a) Qrant v. Milh, (b) Ogilvie v. JeffetBon, (c) Ford v. White, (d) were also referred to. Draper, C. J.-The plaintiff's case is, that in 1889, his father acquired by purchase and assignment the right of one Vigner, who had a contract for the purchase from the Crown of the east-half of No. 5, 3rd concession of East Hawkesbury, at 12s. 66. per acre, payable in ten annual instalments, of which Vigner had paid the first of ?25. The plaintiff's father died intestate, in 1839 or 1840 the plaintiff being then about six months old. Plaintiff's mother, within about a year from her husband s death, gave up possession of the premises to ^dmund Harvey, an uncle of the plaintiff, together with he papers relative thereto. Some years after her death, (for she only survived her husband sixteen months, Edmund Harvey got Vigner, the original purchaser from he Crown, to make a new assignment directly to himself, and upon this assignment a patent from the Crown, dated 20th February, 1856, issued, granting the premises m fee to Edmund Harvey. On the loth September, 1859, Edmund Harvey mortgaged the premises in fee to his brother Henry Jadgmtnt *!~.!^?' "I'^'J^^^^'^^ij^^^^'" *^« eq»'fcy of redempt: (<') 16 Bear. 120. in BRROH AND APPIAL BEPOBIS. 1804. t£ i the plaintiff charges that fTenry Wnrvey had express not. CO \if *i! ►he iaots at and before tho ; '"oution of each of these dueuJ. The defendant purchased, and, as the bill states, before the plaintiff became of age, from Henry Harvey, and it is charged that before the payment of tho consideration the defendant had full notice and knowledge of the facta and of the plaintiff's rights. It appears tho consideration for tho purchase was X375, of which £100 was paid down in money, £175 by notes given to Henry Harvey by defendant's father, to which notes defendant was no party, andthe remain- ing £100 was paid as soon as a* search had been made at the registry office, by which it appeared that the title was in Henry Harvey. Jadgmnt I believo there is no difference of opinion in the court upon the matter of law. There are two questions of fact to be established, failing either of which the decree cannot be upheld. 1st. Notice of the plaintiff's rights to Henry. 2nd. That there was part of the pnrchase money remaining due by the defendant to Henry i arvey on tho conveyance of the land by the latter to defendant. As to the first, Edmund Harvey is the only witness, for bis vendee Henry is dead, and he admits that he wished to have kept this lot, as he said he could have paid off his mortgage to Henry if more time had been allowed him, and he insinuates that he executed the release oi* conveyance of the equity of redemption in ignorance ■ its contents. He refers, however, to Henry's lofu. ' c .ait or him, and adds, "this refusal is the cause cf t ' » ii'OJibb here to day. Had he agreed to give me irr? :' s -uit would r -t have been brought. I could have - •t bomg turne.l out of tho r.laon I / \ ""^'^ had fair plav" iL , . ^ ''"^ "^^ think I had before th'o 1.. ^;r t: r^.^ ^'v.^'//^'-^ >-« to got U.e p,ecnt to 1 i, ,f l'" ^t'^'' T^'^"^"' •dv...! .n the matter Tn d L T', '"^ ^' '"^•' '^^•^" a good title to theJanHut hi V T "'*'"''' ^'^^^'^'^ thought of the title ' ^'^ ""' ''""^ what^.n.y -tLf::::::;::cti;;r;^^^^^ a material link in ^ ^' } '" "'"°° ^o ^mry is plaintiff seqey othtTf ^^''^^ '^ *° ^^* ^ ^'^^ for notice T t IT V ^''"'^ ^'^'^''^^ '^^^'^^lished, proved, and hot on r -7 ''""'''' "^^^'"'^ '« °ot for valie. " *'' ^"'^""^ '"^ ^-''^ ^'^^ Purchaser ,„,,^ if not with h sfti' ?f ^ '" ^'''^' '' '^' plaintiff, The followinrpam"; 'f t ^^'^ ^^""^ ^^^"^'--o. indicate suclf a'^X '?i^: ^"'f"^"' ^P^^- ^o equity to administer, when as h 7,, ' ""'^ ^'^''^^ of the Purchase monPvJK ^^'^ greater portion been too well sotUed L ?''" P'^'^' ^"^ *^'« ^^^^ has attempt to Ike fan LTT '' ^^"'^^ ^^^ ^^ *^ facts admit of it.''' ^^ '^"'^ '^ *° ^PP'^ ^'^hen the contu:red int e^Sn" Th I '^'^"^' ''^ ^^ ^^"^ -officiently proved andft T'''.' *' ^^"^^ ^«« °ot of the inconveni nt col '^^7 ^'°"^ ' «^^°°g ^^'^^e -tainingj^;:r?!:s:^::^'^^^^--^o. proof where there is proof Vhan T '"'^''''''7 of iiiduces me not to givTl t ,h7 ^' ''^^^^^^ ^^ give way to the scruples that I feel VOL. II. 498 ERROR AND APPEAL REPORTS. in acting on the testimony of Edmund Harvey as to notice to Henry. But on tlio other question of fact, I am compelled to say that I think the evidence insufficient to support the plaintiff's contention. The account of the transaction given by the defendant's father is, that the defendant bought from Henry Harvey for £375, of which the defendant paid £200 in money, and the father gave his own promissory notes to Henry Harvey for the remaining £175 : that Henry preferred to take these notes to taking a mortgage on the land, which was offered to him, and that only £75 remains unpaid on those notes given by the father. The defendant, who was examined as a witness by the plaintiff, stated it thus : " My father was to pay the £75 Judgment over the £100, for which he gave his notes, out of moneys he would collect from notes outstanding payable to me : he gave his notes, as I would be from home when the payments would fall due : £75 has been paid on my father's notes, I think in February, 1862 : the balance remains unpaid. My father proposed to Henry Harvey to give his own notes for £75 : Henry said he would accept them, as he thought they were good for the money. It was said my father would be at home •when the payments to be covered by the notes would fall due, and that I, likely, would not be, and that it would be better to give his notes." The father, in explaining why he gave notes for £175, stated, that he owed the defendant part of it, and for the residue the defendant gave him notes of other parties : that there was at the time of the purchase about £100 of the defendant's money in his, the father's hands. The defendant on this point stated that he thought his father was owing him £100 in money ; " he owed me only the £100 in money that he had used." The ERROR AND APPEAL REPORTS. 495 defendant also said that he never claimed wa.es from 1864 V. Smith. It seems, therefore, clearly admitted that £75 is still vemlor A„.,eloc.oa .„ take thco ,,o.crmh 7 hi' tue old man gave his notes, as he was m,]oU. i . i,- son, and i. „. .hough, to b^ cheapo: VulZul notes m question ,vere taken by Senm w" .« stitution fo, the unpaid r-^rllZZ^^ZlV: themselves a part of the consideration eontraet.,5 . t |ven b, the defendant, and wore so IJ^tZ^ -ffamy m payment for the land. "J-^^^r^ If the evidence upholds this view, and shews that th« vendor meant to rely on the notes alone, then thli e agreement was merely by parol, yet I't puts n ef d the hen, as I understand the doctrine of equity I think this conclusion may fairly be dedu.Pd f ^\u proof that Ifenr, W elect'ed to ethe frher ! It would be a strange thing to hold that a man who expressly waives a legal security on the land f^r „ pa' of the purchase money, shall nevertheless be presumed to have intended to retain an equitable lien for [t . t "1 496 ERROR AND APPEAL REPORTS. 1864. In my opinion the evidence warrants the court in holding that as between Henry Harvey and the defendant there was no unpaid purchase money, and consequently the plaintiff's bill should be dismissed with costs. Vankoughnet, C— My judgment in the court below did not at all proceed upon the ground that there was any existing lien for a balance of purchase money unpaid. It was unnecessary to consider that. I held that the whole of the purchase money had not been paid, inas- much as the appellant, on receiving notice of the respon- dent's equity, was entitled to require from the vendor a delivery up of the note which his father had given for his accommodation, because he was bound to re-pay his father what the latter should pay upon it ; and having this right, it was his duty to insist upon it, and if necessary to file a bill in this court to enforce it. If after knowledge of the plaintiff's equity, he, without JodgsMni. remonstrance or ^'action, allowed his father to pay the note, he would have permitted a paymeilt in his own wrong, and could not afterwards be heard to say that he was a purchaser for valuable consideration fully paid. He was bound to submit to the plaintiff's equity when he became aware of it, and to protect himself against the vendor, if he chose. If he did not so choose, the blame and the loss should fall on him. I think the opinion I expressed in the court below is in accordance with the rule of decision in England, which the statute law of the province and my judicial oath compel me to observe, and I cannot conscientiously concur in any other view, though the conclusion at which the court has arrived may probably be the more just one as between the parties. Richards, C. J. — I fully concur in the views which have been expressed by his lordship the Chief Justice. No case hag been cited where the note of a third person has been accepted by the vendor, and the lien for the unpaid purchase money held still to remain j and cer« ERROR AND APPEAL REPORTS. carrv h 7 ! ^^P"^*''^^^^^^' ^ ^0 not feel inclined to carry the doctnne further than decided casea compel us to do. On the whole, I think the appeal should be alWed, and the bill in the court belo/Lmissrd ti^h Spragoe, V. C.-I am unable to concur in the judg- ment of the majority of the court. ^ in ^Jr^" '' V"- TW ^^ '^' J"'^^"^^^' °f t^>« court m Graves v. Sm^th, (a) and to be clear law upon English tlut nir ^P^^'^'-'l-'y'-apurchaser forvalu Without notice :f any portion of the purchase money remain unpaid at the time of bill filed, or notice given In this case it is clear upon the evidence that a portion of the purchase money has not been actually paid, and the fh s'Tw 'T''^' ^""''^ '' ^ purchaser is'resed upon ...... hiMhat as between him and his vendor Menr, Harvey ' thanor r rf' "^P^^ P"^^^««« money" because given to the vendor for the amount. The nature of this equity-lien for unpaid purchase money-is familiar; Lord ^^ Ze.na.rf. says of it, -It IB immaterial that the seller had no intention to reserve personal security : ,n either case the lien will be raised ' m h s favour, if the security which he has accepted does not from the nature of it preclude the claim.'' And has been wen observed by the learned reporter in Bank ruptcy Mr Rose, (B) that no general collusion can be drawn from the nature of the security alone; that the conclusion of abandoned lien must sdll depend n the particular circumstances of the case. _l!^!!!!!!il5!MPoin^^ ^h,tl,g^ .^ ^^^ (a) Ante p. 9. (*) 2"i^;;^n;^l];7irZ- ■ iv. . < '■ 498 ERROR AND APPEAL REPORTS. 1804. Harrey Smith. Judgment. case of q. note being given by a third person for the unpaid purchase money the lien is gone. In this case the circumstances under which the note was given should be looked at. The note was for £175. Of this, £100 was due by the giver of the note to the purchaser ; or, in other words, the purchaser had £100 in the hands of the giver of the note. There were also in the hands of the latter notes of third persons due to the purchaser, sufficient, as it was estimated, to answer the balance of £75, and which it was expected he would receive before the note which he had given would fall due ; and the reason of this note being given by the purchaser's father, instead of by himself, was, that the purchaser expected to be absent, while his father would be on the spot, when the purchase money would fall due. Now the real nature of this transaction was simply this : the father having in his hands moneys of the purchaser, and securities for further moneys, which he expected to realize, undertook to apply these moneys at a future day in the payment of the balance of purchase money, and became responsible to the vendor for the amount, at the request of the purchaser. If this request had been written, and the promise to pay, upon the paper coU' taining such request, it would have been a bill of exchange, accepted by Smith the father, and so within the case of Grant v. Mills, before Sir William Grant. In that case a bill was drawn by the purchaser and accepted by the firm in which ho was a partner ; and Sir William Grant was clearly of opinion that there was no waiver of the lien by taking the bill. He observed, " The only question is, whether the plaintiff has parted with that lien, which, unless it has been parted with, every vendor has for the price of his estate. It is said, that by taking bills, accepted by the partner- ship in which the purchaser was a partner, the vendor has got the security of a third person, viz., the other partner, which must be considered as a substitution for the lien. What may be the effect of a security, properly ERROU AND APPEAL RKPORTS, 499 to the drawer in his hands L. "'°"'^ ^''°"S'"S tnoney forthcominraccordilT r^'^'' .*° ^''' '^'' bill. The accentor T ^ *''' requisition of the the debt of aTo£ V rcULt^^^^^^ ^^ \^"^^*^ ^- be debtor to the drawer X k.."''^^ *° in tho hands oS ''°"''"'° "-^y^-ain, looking at what was reallv the r,«t„„ c .u •otion in .hi, case, I cannot Tany "a "of , ' '""'■ more than in Grant v. Mills • tZ '"' ""^ indeed substantially the same s '•"T""""" ''" been indebted ,o !h„ s „ ,t thcTr *' '"""" ^'^ unpaid purchase mo„e;:„rhar.t':er;":: o1 1 nrsat-irttir ""-"^ »'"'"-. ^-itt - because he h d m „ey t his ,"?"/ '° ""^ "'^ portion of the amoZt ^L \ ""^ '"' ""' S^ter balance, and ?o7that T "T"' "' "'"'''"« "■« undertoLl .0 %;; td not "' '" ""' «■■"-"« " F"/* ana not as a merp Bnrn»-,T r i puf chaser. surety for the ^^^^^^^^!lf^Lli!!L!12iZ!E^^ that the . "? 600 ERROR AND APPEAL HEPORTS. 1864. Jv4(iiirat protection accorded by a court of equity to a purchaser for value without notice rests upon the same principle as lien for purchase money. Lord St. Leonards, in treating of a plea by such purchaser, says, {a) " The plea must also distinctly aver that the consideration money rav-tioned in the deed was bona fide and truly paid i • jpendently of the recital of the purchase deed, for if the money be not paid the plea will be overruled," and gives this as the reason " as the purchaser is entitled to relief against payment of it." For this Hardingham v. Nicholls {b) is cited, where the plea was, purchase for a valuable consideration, and that the purchase money was paid or is bona fide secured to be paid. Lord Hardwicke overruled the plea, observing, " The defend- ant has not paid the money yet ; and therefore, as he has notice now of the plaintiff's title, the money he has only secured to be paid may never be paid." For what reason is it that the purchaser is entitled to relief against payment of the purchase money ? For this reason only I conceive, that the equitable title is in another than his vendor; and it is inequitable that his vendor should exact payment of his purchase money when he cannot make title for the land sold. And this reason is quite independent of lien ov no lien for the unpaid purchase money, and is just as sound and forcible when there is no lien as when there is. For the court to say, true it is, the vendor cannot make a good title, and the general rule in equity is, that in that case the purchaser shall be relieved from the payment of purchase money, but here the vendor has no lien, and therefore the purchaser must pay, seems to me, I con- fess, an illogical conclusion. I take it to be proved in this ease that the equitable title is in the plaintifi", and I think that that coming to the knowledge of the purchaser Smith, while there was purchase money unpaid, was a ground to excuse him (a) 14th £d. 789. (6) 3 Atk. 304. 501 ERROR AND APPEAL REPORTS. from further payment, and for relief in a court of equity ; and if so, he cannot be a purchaser for value without notice. The facts do not exist which enable mm to plead the necessary defence. I cannot conceive that the circumstance of the pur- chaser s father having undertaken to pay, that under- taking being m effect to apply the purchaser's moneys in his hands to the payment of the unpaid purchase money, can make any difference. I certainly should not hesitate to apply the equitable rule in such a case against the vendor. If he ought not to be allowed to compel . he purchaser to pay directly, he ought not to be allowed to compel the application of the purchaser's moneys. I should consider that point too clear for argument. To recur for a moment to the point of lien. If in the Z« K*/'"i7 ''*'^"^"« " ^^^'^ for unpaid purchase money, but unable to make title, his purchaser is relieved irom Its payment, can it be that because he does not retain •'°'"^""- a hen he shall, while unable to make title, compel payment. Such a distinction appears to me, I confess, unintelligible, and I venture to think is not founded in reason or upon authority. For these reasons I am obliged, with deference to the majority of the court, to dissent from the conclusion at which they have arrived. Per (7™.-Appeal allowed, and bill in court below rc"tin;f t^-^-^^->^->-d^..,,. 65 VOL. II. 602 ERROR ANl) APPEAL REPORTS. 1864. On an Appi'ai, from the Cocbt of Chakcbbt. The Bank of Upper Canada v. Thomas. Judgment creditor — Form of decree telling aside deed for fraud — Dower of wife of grantor. In setting aside a deed for fraud, at the instance of a judgment oreditori by a decree of this court, the proper form is to avoid the deed only as ngnin!.i™ a,' griiet „r'ir:: T "^'"""'•' "-rt .he validity and exis e^e f h 'Lr; '"■" ances, and eo obtain Driorlt, „„ .1, " convoy- ..judgment credito" f n7h « ° .T' ""? °'™' inconeistent with itself- ,1 „ , "'"' '^''"■' « «f the agreen,:«r aid :f;:":7 '"""™°"'"° appellant was never ™fo„„ 7 * l ° P"""" *« yAm<,.fren,sarfvinThl! >" '"'""'°" '"■"""f "nd i» the pleading tnld^lrt ."h"' '' '"^ ""•" ■Jwaye entitled so to satisfv A. '' ""^ /"""ary, w«i plaintiffs cannot at any tt , = ""'' ^""""' "■» th.n those of ThoLjn th ° °"^ «""« "e""" the appellant wTs ,0 "to n dT"'" '"' ""^ "» '^ *o ...tiffs arenotenStrr-s^rr i'-WyiLespcf f h Lrit' t' ""^ "■«'" of wa. not discussed or settled i„ 7 f °PP°°' "■«"'» PWings mentioned "r odd I ° " I""' '" "■' discussed or settled ii .nch IT """'' '"""' ''««'' ..".e to have beersW dt T' TV" ""«•" ""' lecanse the nlaintwi "'"' °"'" »»'''»; and their billin the nrl! """' ""'" ""> «""? «f "nder whicVtt ' d olr" •"' "^ -«"™.a.ces agreement in 1 1 't T"'' ™'°"'^ '»"' "" question, nor the particulars of such SUtetBtnt. I M A06 KRROR AND APPEAL REPORTS. 1864, agreement ; that Bealttj did not, in the suit in the court ^■""v— ^ below, prove the proceedings in the said other suite, so ° »• as to bo able to uso the same ; and they submitted that the said other decrees cannot bo U3ed or referred to on this appeal ; that the decree made in the premises is not inconsistent with nor is it in effect a reversal, variation or modification of the. decrees in the said other suits, having regard to the pleadings, and the circumstances under which the said other decrees were made ; that the conveyances in the bill mentioned being good and bind- ing between the parties thereto, they were entitled to take advantage of any benefit which such conveyances (binding between the parties thereto) give to the said respondents, and that, although such conveyances are, as they are declared to be, fraudulent and void as against the respondents, as creditors of Thomas^ and there is not, therefore, any inconsistency in the said decree; that upon the true construction of the agreements and CtatoBtnt. dealings of the parties, the said Beatty was and is estopped in manner in the said decree declared, and the respondents being creditors, and not having been parties to the said transactions between the said Thomas^ Stephens, and Beatty, are entitled to greater rights than the said Thomas; that upon the true construction of the said agreement and dealings, the said Beatty abandoned his said judgment, and substituted therefor other con- siderations referred to in the said agreements and dealings ; that the judgment of Beatty became merged as against the lands and mortgages in question, and on this ground also he was estopped from setting up the same as against the said lands and mortgages ; and that there is no reason in law or equity why the rights of the respondents should be limited to or measured by those of the said Thomas. Mr. Fitzgerald and Mr. B. &. Boulton for the Bank of Upper Canada. Mr. Blake &nA Mr. Wells for Beatty. B«ROil AND APPKAL 1.EP0RT8. 607 Watts V iZZ.% ''""^''' Grioe y. ^a., (^) ""V' - V counsel. '^'^*'^"» (0 were referred to '^« pi-tiff. „„, .,,0 1;;':;, ;;xr °' ""'"' '^ ■ DRAPBR Q J rn, of tie defendant &X " *' ""' """'■• °» "■= p.r. As to the first tho i • -a- to ehe defendant SelZt^' ""l'''"^'"''^"' «»««. o'tate and in.or.a. f S °? t '^ "' '"°^ P«'' '"o •'o^eed,*„Mwo&:;::[Xif;^^^^^^^^^ , to ««^w f„ .h p i'*:rr'""' '" "■»»« ■»'=''» Wm and those who mi„, T I ?"'"'"« '"'• ''o''^'- to ' under him, her T e." ,h ?"" ""I"'™ "■"' ^''"e »f ) »honW in ete S.t '' °° """^ '° ""■» of the plaintiffs as oredUo.,!;. ?"'" '° ""> '>™ofit •» Ws conveyanee of he aldf. r'""'"''' '■"»"°"o'' plaintiffs, heL adJ„;:Si tf:,':,-'''' 0' "■» fiVI (a) 1 Ver. 294 {e) 29 Beav. fis? (e) I4jBeav. 642 (ff) 10 Hare, 76 (0 9 Hare, 47. (*) 2 Beav. 420, W3Dea.647.SP a^. .. (rf) 21) Beay. 453"' '"••''^• (/) 19 Beav. 656. ('J 8 Grant, 666. 608 ERROR AND APPEAL REPORTS. 1864. We do not agree in this proposition. The effect of the decree is not wholly to avoid these deeds, for aa between grantor and grantee it has not been denied that they are effectual to transfer the estate. All that has been urged against them, and all that the court have decided is, that they were made with the intent and design to defeat and delay the plaintiffs and other creditors of Thomas, and were therefore, as against such creditors, fraudulent and void. To this decision the defendants have submitted. But the plaintiffs desire to carry it further, and under it to obtain a right against the inchoate interest of TJiomas wife to dower in the lands conveyed, which interest their judgment did not reach or bind, nor did their execution attach upon it. What effect may properly follow this release of dower and to whose benefit it may enure, we are not now called upon to decide. But we have no doubt, that the plaintiffs having had originally no claim against the wife jad ent 0^ her interest in these lands, have not acquired any by adfmen . ^^ jj^g-^^j^^-g conveyances of his estate therein, and by the decree, that such conveyances have, as against credi- tors, been declared fraudulent and void. This appeal must therefore be dismissed. The other appeal comes from the defendant Beatty. The facts material to be considered in relation to this seem to be the following : He is a creditor of the defendant Thomai upon a judgment for $6000, entered against Thomaa on the 12th of March, 1859, and duly registered, upon which writs against Thomas' lands were duly lodged with the proper sheriffs. This judgment, though charged by the plaintiffs' bill to be fraudulent, stands unimpeached by the decree. He also holds by conveyance dated in November, I860, from the defendant Stephens, those certain lands BEROR AND APPEAL REPORTS. 509 Sank U. 0. V. Ihomai, Which Thomas by the indentures of the 13th April, 1864. I860, conveyed in fee to ly^e^/ien*. ^ The Bank of Upper Canada hold by assignment a judgment against Thomas, which was registered the 16th November, 1858, on which executions against ands were lodged with the proper sheriffs in August l»bl. They also hold a second judgment recovered by themselves against Thomas, and registered in April, I860, and they hold a third judgment for a very large sum recovered by them against Thomas on the 6th June, 1862, on which, as well as on the second judg- ment, executions were lodged against Thomas' lands with tbe proper sheriffs. The indentures made by Thomas to Stephens have by tlie decree been declared to be fraudulent and void, so tar as they pass the estate and interest of Thomas. Ihe appellant, Beatty, has therefore no recourse to those lands under his conveyance from Stephens until the ,,a«i^t. bank judgments are satisfied, and to this extent the appellant, Beatty, submits. But the decree further declares, that the defendant. Beatty, 18 estopped from setting up any claim on the Jt^gment recovered by him against the defendant, Ihomas, as any lien or charge upon the lands or mort- gages m the bill mentioned by virtue of the registra- tion thereof or of writs of execution or otherwise, and orders a writ of injunction to restrain him from making any such use of the judgment. Against this part of the decree the defendant, Beatty, appeals. ^ It has been urged on behalf of the bank that the judgment obtained by Beatty was merged in the inheri- tance acquired by him under the conveyance from Stephens, and therefore cannot be set up by him for the purpose of having eseeatioa against the lands of Thomas. The decree is not rested on the ground of merger so ^^ VOL. n. ' . ^j m- 610 ERROR AND APPEAL REPORTS. 18f)4. far from it that it treats the judgment as valid and ^^^^^ existing. If the learned Chancellor had thought the Thomw. JiJ^g^c^t extinguished he would not have declared Beatty estopped from setting it up and claiming to have it satisfied. JudgDMnt. I do not differ from the view taken of the judgment. I have seen no suflScient authority for holding it to be merged and much which tends to an opposite conclusion. In addition to the authorities cited at the bar, I refer to Tynvhitt v. Tyrwhitt, (a) Davis v. Jones, (b) Swinfen v. Swinfen, (c) and Brandon v. Brandon, {d) The decree is in express terms rested on the ground that the appellant is estopped by^ the taking of this deed under the circumstances from setting up any claim on the judg- ment. It in effect declares that the very conveyances which by the same decree are adjudged fraudulent as against The Bank, do nevertheless work an estoppel in their favour against the appellant, who, as between him- self and Thomas, has become the owner of the lands, &c., mentioned therein. As I understand the argument, it is, that the appellant was a party to deeds by which the lands of Thomas were conveyed to him : that such deeds were fraudulent and void as against the creditors of Thomas, though valid to pass the estate as between himself and Thomas : that the appellant therefore is estopped from asserting that these lands belong to Thomas and are liable to his, the appellant's, judgment and execution ; and further, that he cannot be permitted to derive a benefit from the setting aside by the court of these deeds on the ground of fraud, to which he, the appellant, is a party. It seems to me important to remember, that so far as we are informed, the appellant's judgment is a bona fide claim and charge against Thomas. The Bank charged (j) 9 Jur. N. S. 346. (e) 7 Jur. N. 89. (b) 8 Jur. N. S. 592. {d) 81 L. J. Chan. 47. ERROR AND APPEAL REPORTS. fill that it was otherwise, but failed to sustain their allega- 1864 TL ;• ''''\'T"''^ '^"^ '•egistered long before this ^^^ transaction of the conveyances of Thomas' lands- is^'V'"- entirely unconnected with it, and it is still unsatisfied: ''°'""- and apart from the question under discussion, it has priority over a very large portion of The Bank's demand. The effect then of the decree is not only to set aside conveyances which passed the estate to the appellant, and to subject the lands to be sold by execuli^n, bul hi n^'.i? T P'"''*^" °° '^' ^PP^"^'^^ by depriving him of the right to enforce his judgment in the legal prion y ,n which it stood, and in effecS as is said, owin<. to the large amount due The Bank on all their judgment^ ^pm,i Thomas, to depri.o him of any prospect of get- ting paid out of the proceeds of Thomas' lands. Treating this as a question of legal priority, I have been unable to satisfy myself that the appellant has lost It, j,or do I discern the equity on which The Bank relies for defeatmgtheappelhnt's recovering satisfaction upon J»^««t. hi8 judgment. He is not claiming anything which depends upon the fraudulent conveyances ; but he urges that The Bank should not be allowed, on the one handfto set aside these deeds in order to let in their execution and on the other, to assert their validity for the purpose of shutting his execution out. Reclaims that they who not only are not parties or privies to the conveyances, but are acting in opposition to them, shall not be allowed to set them up by way of estoppel to his prejudice. No authority has been cited which supports the con- tention on the part of The Bank; and though neither Dohn V. Qoltman nor Stokoe, v. Oowan appear to me as precisely in favour of the appellant on the point in question, yet they tend that way with sufficient force in the absence of anything to the contrary, to induce me to hold that the appeal should be allowed, and so much of the decree, as relates to the estoppel to making use of the judgment, should be reversed. iff K ht^ ERROR AND APPEAL REPORTS. 1964. Vankotjghnet, C. — The question debated on the appeal in this case, though presented to me in the court below, was not much discussed there, nor were any authorities bearing upon it cited. After careful consideration of rll that has been now urged, I am constrained to the con- clusion that the opinion which I formed at the moment was correct, and that this appeal should be disallowed. It must be assumed that the decree was right in declaring that the deed under which the appellant claims was frau- dulent and void, as against the respondents, the plaintiffs in the court below, and other such creditors as were in a position to prosecute their claims against the lands of the debtor, Thomas, by whom the fraudulent conveyance was CAOCUted. As betwee^i Thomas and the appellant, Beatty, the transaction is binding. Beatty cannot repu- diate it on the ground of fraud, nor refuse to pay Thomas the purchase money of the land, because, by reason of the transaction between them; or between Thomas and Jn«gjient. Stephens, in whose place Beatty stands, being fraudu- lent, claims of creditors of Thomas have been let in, which may sweep away a portion or even the whole of the property. Now, when the court sets aside a deed as fraudulent against creditors, can any instance be found of one who has been a party to the fraudulent deed being ranked among the creditors who are entitled to the benefit of such a decree, as against the property which such party obtained and holds by fraud ? Could such party himself set up the fraud and ask to have the deed on that account declared void, and if he could not do it himself, can he avail himself of the proceedings of others for the same purpose ? Once a decree is made for the benefit of creditors, all creditors become or are entitled to become actors under it, and prosecute the decree. What then would be the effect of holding the judgment of Beatty against Thomas, as still a charge upon the land which the latter conveyed, and which Beatty up to the last step of this suit claimed, and indeed still claims as his own ? Why, that Beatty himself could not file a bill to enforce his own judgment against this land, ERROR AND APPEAL REPORTS. Sis yet that, m the suit instituted by the respondents he -^ wo be enab ed to take up the decree andVoi ^'^^ >f they neglected to do so. and sell his own land as '''"'•• Thoma,^ land still, though the law says it is his land L be ween hi. and Tkomas^ and the traLa t n 'y Ich irr; " "; 'l ^^^^^^^ '^^ *^^«' ^^^nding ? ' J^ppose Beatty directed the sheriff to sell this land under an eT returned the writ, no lands, would an action there- for he against him? Could not the sheriff shew the truth and prove that Thomas had conveyed these knds to Beatty, and that they had therefore ceased to bo th! TlLTr' f-"^ -'^ notre.rt thLu in IhomM bj merely sajing they w«r« hi, * • ..ppo=e .h, ,beriir had aold ul^der^hre^™ i.^tf Z' respondent, ,he,e land,, would he have b'r I^t B.t.sfy,„g out of the proceed, .h« execution in h hand" writ ( I think not. I think that if, as between m«<„ '"*"'■ r^^iBeamj, the land, had become Se»«„™Theeh"fi would not be justified a, between them, ltd „««",! •nolher creditor, in treating the land , still rSr He certainly could not, in my opinion, be compel edW f ™ f f t/.° '' T'^ ^ "''°'= ""y ""ditor who hS mmm, would have a right to insist that, as betwcfn the latter two, it was binding. Equity in these case gi « «.r^V„, y. Th> York BuOdina, Ompany, (a) " I do not knew, in the case of frandden 2'ojances, that this court have ever done any tS more than remove such fraudulent conveyance, ouiof thf way, . . • b„tequityfollow,the law, and leaves them to their remedy by ekgit, without interfering one way or the other -the rule being.as I understand lord J.4." ' - ana as I understand the law of the court Vo be,' thatno person affected by, concerne d orjntere,,.. ;. .k'. . " ;; (a) 2 Atk. 107! """ ■ 614 ERROR AND APPEAL REPORTS. 1864. ing out of the way of creditors a fraudulent conveyance, acquires thereby any higher or other right in this court than he held at law. This court may allow the parties to proceed upon their executions at law, as did Lord Hardwicke in the case cited ; or according to the modern practice, it will itself sell the property, or procure money to \ ■ , ^iscd on or out of it to pay off the creditors; but in so dealing with the estate it never has, in any instance that I am aware of, created or acknowledged any other rights than those which the parties might have enforced at law ; or interfered with the order of those rights, un- less it be to enforce some equitable claim which this court would itself have directed against the land, had it remained in the hands of the fraudulent grantor. But it is said that the court removing the deed out of the way of creditors, will revive against the land the judgment of Beatty, and the well known doctrine of the court with regard to charges which have merged at law but have jndgment. been Tcvived in equity, is brought in aid of this position. What I have already said seems to me to answer this position. This court treats the fraudulent transaction as binding upon the parties to it, as does a court of law. There is no difference on this head in the law as admin- istered in both jurisdictions, and, in dealing with this particular class of cases, equity but follows the law in settling the rights and claims of the parties before the court. But does the reason or the principle on which courts of enuity have held that a charge does aot merge, or on which they have given resurrection to a charge against a particular estate apply to this particu- lar case ? Is there any, the slightest reason to presume here that Beatty did not intend to hold this property absolutely as his own ? Has he not up to the last mo- ment — does he not now claim it as his own ? and does not the law hold that, as between him and the grantor, the property has become his, and that he cannot repudiate the transaction, and must pay the full price agreed to be paid for it, even though it all be swept away to meet the demands of the defrauded creditor. Where that is the case, is there any presumption of a charge ERROR AND APPEAL RBPOETS. 515 against such an estate in favour nf tl,. instances, it is with refln .^' '"^'''^'' "^^'^o"* '"v^ sort of use to h^e a 1^ *'*''! P*^^^ ^'^^^^^ -We that is the se, tZ Z hi"" ^^*^*^' "°^ ^^ something shall have ieendl. . *' ''''^' ""'««« foot." I take this to be a r ^ *° ^'"^ ^* ^'^ If the intent of t e t tv b! T'^'T '' ''' ^-• shall go. go it will, howeveTm oh T V *'' ^'"^«« to his interest af^rward to t • '"•°''* ^''' ^''"^ party acquires absoIur,;.;ie:tT ^' t" ^''"^ ' the presumption of law I that t ' . , f^'^ '^'^ ^'^^ to go or merge and thlf "*'"^^^ *^« charge ^-n.sa,s,bt:i;p^: L';:r,7^"- -Hve. It cannotT e ed'I""'°l''^'"P'"S'^ something done afterwards ft' . '' ^^ '^^'^°" '^ have bac^n for his in rest tad h 7' °"' *^^' ^' ^^^^^ the charge subsisting t It tT' "T "* ^° ^^^^ this doctrine of merir has «?, ""'' ^"""''''^ *hat case, and that it must b ,? ^^^T'"" '' '^' ^'^^'^t indicated abov Zll'^"''^ '^ °° °^her grounds » >«">o»t • •nd Wer Cal^- ,, "T""" ''^S'^'""'" °f Upper proof. "°° "' ""> »""""'. "ithout further .ndthattlf.etXll^rrSZ-:Cfr f^ ■ rr^oLrr 11^.1^"*™"'' ■•""-ca^^^^^^ decision inUonlr r ^ ""' "'"''" "'o '«!« of leading c.,e:iliets\:;/;^,i^Vt;'' on Private International Ln p 23a ' *' CaS:;„reTi^wtTa\'i: *" '""^ ^"- be in writing under seaTanV! """^ "I"™'" "> "*»«■ only were »h'e™tra:ob en. enTT" "'"'" "°*° would contend that our court" we" ^Mf?"'".'"' ""' with the more formal !„., '""'y '° "'"Pense .hero he when thoTw in tolTLld'" "^'^°°= °™ sne within five years • trTZ ,,T "'^' y™ ""»»' «»e,.nym„refha„;e;:iro ; 7 '° '^'"^ *" notice I have mention!d?T '" ''"P=°'° """ «■» beShfsUr^rLrr '"'- "-^ "™'>'»'» note, to Most,n v Zl:''(:f^"'"S '» "r. S„m'. . Mr- ffoft, Q. C, for the respondent R, .u . (o) 20 U. C, O, B. 366. («)10Jur. N.S.I 07. fil7 67 107. («) 1 Sm. L. C, m tpage VOL. II. 518 ERROR AND APPEAL REPORTS. Sblrlir T. HoltKBkb. 1964. act shall come into force, shall be held and taken to be absolutely paid and discharged if no suit or action is brought within four years next after the day on which such bills or notes shall become due and payable ; and all such bills and notes made and not duo when, or to be made after, tiiis act shall come into force, shall be held and taken to be absolutely paid and discharged, if no such suit or action is brought thereon, within five years next after the day on which such bills or notes shall become due and payable." If the effect of JTolconib's being resident in Upper Canada is to render him liable to be made pay the note sued on in this case after the lapse of five years, he would be unable to enforce contribution from his partner who, it was shewn, had tbeen the contracting party throughout the whole transaction, and resident in Lower Canada. An endorser can only be responsible accor- ding to the law of the country where the note was Aigomcnt. made. Here one of the conditions to the defendant's continuing responsible is, that the rote shall be sued on within five years from the date of its maturity. Mr. Anderson, on the same side. The point really in issue here may be divided into two questions : First, is the act now under discussion really a statute of limi- tations. And second, if so, and passed by the legislature having jurisdiction over the whole province, whether it does not bind parties resident in Upper as well as those residing in Lower Canada ? But if wrong in that respect, then he contended on the principle of the lex loci solu- tionis prevailing over the lex loci contractus, that the defendants would be entitled to judgment, and here the case was stronger, for Montreal was the locus contractus &s well as the locus solutionis. The learned Chief Justice, in disposing of Servey v. Jacques, says, " We are not asked to admit its operation merely upon the ground of comity of one independent nation or people towards another, "but the statute in itself is a direct binding obligation upon us." There is not therefore any ques- '11 ERROR AND APPEAL REPORTS. tion here as to the power of the logislature to bind struaion of the language of tho statute, which he ''v"" contended was olearlj in favour of the judgment nro ^"'"""^ mITTI V C._The note in question wns made in Montreal, by a firm carrying on business in that place! and was made payable at Montreal. The endorsemen by Henderson and IlolcomB, by the hand of mnZZ must be taken to have been in the ordinary course of hebusmessof^e..rf..,.„^. ^,^ otherwise T/ comb would not be liable ut all: the business of fhat firm was earned on at Montreal. The whole transaction was a dealing m Montreal, and was not less so from the circumstance of SolcomO being a resident of Upper The note is clearly within the provisions of the act • and according to its terms, must be held to have been absolutely paid and discharged at the expiration of five years from the date of its becoming payable. I think the statute (c) operates to extinguish the debt, at the expiration of five years without suit, and not to bar the remedy only. When, by the law of the country where the contract LZu, '""""'^^ '"'^ '' ^''''^' *he weight of English decision is certainly in favour of the case being governed by the le.forl This may be open to ques iof upon principle, and Dr. Fhmimore, in his elaborate r;r i "^°" ^7''' international law, observes that the preponderance Of veaaoning and authority seems to be against the princ/ple maintained by English law ; and he quotes, with approval the language of ^a.,,„, ^.^n th point, "according to all ^-- • • • - - Jnd(ment. iii;!itiii m ERROR AMD APPEAL REPORTS. 1604. Bblrlff r. ^oloomb. place of performance shoulJ prevail. The reasons upon which the law of prescription is founded are intimately connected with tho nature of the obligation; and, apart from this ground of theoretical justice, tho practical equity of tho doctrine is obvious. It takes from each of the parties all power of making an arbitrary selection which may bo injurious to tho other. So in tho case of a variety of jurisdictions to which recourse might be had, it prevents tho injustice which tho plaintiff might com- mit, by selecting that which recognises the longest term of limitation; and it will not allow the defendant, by transporting his domicile within tho jurisdiction which recognises the shortest term of limitation, to defraud the plaintiff. The time of prescription has been immutably fixed for both, at the time of the contract, by the law of the pidce in which it is agreed that it shall be fulfilled." We are, of course, bound by Engliish decision ; but Judgments there is so much force in tho reasoning in favour of the law of the place of performance of the contract, being the law to govern on the question of prescription, as well as of the interpretation of the contract, that I think the doctrine of the English courts upon that point should not be carried further than it has already gone. The distinction taken by Mr. Justice Story, excepting out of the rule of the lex fori cases, where the Statutes of Limitations of a country not only bar tho remedy, but extinguish the debt, with the qualification he appends to it, is approved by Sir Nicholas Tindal, in Ruber v. Stei7ier,(a) and by Lord Brougham, in Don v. Lippard,[b) In the former case the learned Chief Justice said " un- doubtedly the distinction, when taken with the qualifica- tion annexed to it by the author himself, appears to be well founded. That qualfication is ' that the parties are resident within the jurisdiction during all that period, so that it has actually operated upon the case,' and with such restrictions ^ does indeed appear but reasonable (o)2Bing.N. c, :;U. {b) 5 C. & F. 16. ERROR AND APPBAL REPORTS. HI the contract t bo a ^1 tl T " '^'"^ '^^^"«' ^^• time, without anv i^, '"'''^ ^°"^ '^^ » cortain limited ^-v^ rega del bv hof '"•'''''^"'"g «"'^ should bo equally 'K'^ gftruct by tbo foreign countrv as the Dart nf T , «»'^»^ that a contract is JJr .T .■ ^ ^'^ °°""'^? '» H l»tely oxt, Itw 17" " '""^ '° ^ ■'«"■'"' '"'=°- . «.at4e .ri^of r;:r or':/:™"^".'" "^ while that time is rnnnJn^ r ,j ^'^^^ jurisdiction, ofthiscountr; oeons efit ' "f "'^^ ^'^^ --'» fixed TU „ . "'.""'''^^'^ '' «« ^w« after the pr ■ ;od nre nxed. ihe authorities establish tbnf *i , ^ country whcro the contract i ml " '" -"^ "^ must be l„„k.,i „„ „3 impUedt „r ^rlr •,.'°'''-«- No.f, if tho contract had ,o/ut^^ ' "'""'■ Bhodd be absolutely void if Z f f °"" """ " Wn time, nodoubt^hlFn Ik ""''""^ """° » »<'■- .f.ertbeW.-mtr^^S'tr-^'Jt^^'fJ'™''' being expr^sre'd^^'tr™! TrnoTt :.?' ^ " •qnallypart of the contract' If ,„. ? ,1°"' "'"' the foreign law be, .bat the contract sWl.V'!/"'" °' of a certain time, become void ^o itj Jb Juh ""J™ to .t continue to reside all tba «me „ M, P"'"' the .nival of tbe period prefl'edf! *° "'"/ """"try, depend on the contiigen'cy of th I ""'''"'" ""' absenting themselves ; CfiflbtTeatT'"* '""^ never ,ill arrive at all ; and til ° . """"y- Judge Star, intends by t e words . ha'; .r'""' "''" . --.^.u.;. -.vHuin tile jurisdiction durin., aTI *u /"" . "' " '.hiJli^fJf^i^ny^pera^^ (a) Smith's L. C. 642^ — — - 522 ERROR AND APPEAL REPORTS. 1864. the law be so framed as to operate upon the case, with- out such residence, the qualification appears to be inap- Bbiriff ▼. Holeomb. Dr. PUllimore concurs in this reasoning of Mr. Smith ; and I must say that to me it appears unanswer- able. It is not necessary, however, in this case to impugn the qualification which Judge Story annexes to his proposition, for he applies it evidently only to a change of residence after the contract entered into ; as Mr. Smith expresses it, " the removal of the parties out of the jurisdiction while the time is running." In this case there has been no removal ; the special case states—*' Henderson has always, at the time of, and since the making of the note, had' his domicile in Montreal, in Lower Canada, and Holeomb, in Toronto, in Upper Canada." Then, taking the law applying to such a contract to jndgmuit ^^ incorporated with the contract itself, it is as if the parties had agreed that the contract should subsist only for five years after it matured, unless sued upon ; no change of circumstances has taken place : the holder of the note has had all along to bring suit in case of default against the same parties, and in the same local jurisdiction, as when the contract was made. Suppose the law had been expressed in the contract, and the plaintiff suing upon it, had set it out in his declaration, what fact could he have avowed to prevent its being demurrable ? I should, therefore, have felt obliged to hold the debt extinguished even if the law applying to the contract had been that of a foreign country. Its being an enactment of the Legislature of Upper and Lower Canada makes the case stronger for the defendant. We do not give effect to it from the comity of nations ; it is binding upon the courts of Upper as well as Lower Canada. The act provides in effect that all bills and notes due and pay- able in Lower Canada, after a date limited by the act, ' -h ERROR AND APPEAL REPORTS. 528 1S(M. Shirlff T. Holeomb. shall be held to be absolutely paid and discharged, if no suit or action be brought within five years after the same shall become payable. An action is brought upon such a note after five years ; none before. Is it not brought upon an extinguished debt? It is so, unless we are at liberty to engraft qualifications upon the statute which the legislature has not thought fit to make. There is nothing in the act that indicates an intention that the Slst clause was not to apply, when one of the parties liable was a resident of Upper Canada. If that distinc- tion had been presented to the legislature, I do not know that it would have been adopted : there are, I think, sound reasons why it should not ; but if I thought such a distinction ever so reasonable, and its absence ever so mischievous, still I do not find it in the act. The courts cannot prolong the liability of parties upon any notion of theirs as to an unexpressed intention of the legisla- ture. I make these observations because it would be necessary to go all that length, in order to hold the Slst clause not to apply when one or more parties liable are Judp«.t resident m Upper Canada. I think the judgment appealed from, right, and that the appeal should be dismissed with costs. Haqarty, J.-The defendant Boleomb was in part- nership with Henderson, and their business was carried on in Montreal, where Henderson resided; Holcomh always residing in Upper Canada. The note sued on was made by the firm of Hooker, Jackea, ^ Co., in Montrea , payable at the bank there, and was endorsed by Henderson, the defendant's partner, in t: e name of the firm, in Montreal. The case relied on by the appellant of Hervey v. Fndham, in the Common Pleas, differs materially from this case. The judgment in that case was upon demurrer Ihe declaration charged the defendant Pnrf^iaw as tHe maker of a note (not averring that he had any Lower ■I'll 524 ERROR AND APPEAL REPORTS. 1864. Jodgment. Canadian partner, or carried on business there) to one Hooker^ or order. The plea averred that the note was made and payable in Montreal, and set up the five years bar. The replication averred that neither of the payees lived in Lower Canada, and that Pridham, the maker, at the time of making the note, and since, always was a resident of Upper Canada. In the present case the facts are very differently stated. It shews a note duly endorsed in Lower Canada by the resident partner of a fii*m trading there, and I do not see how this contract, so made, can be governed otherwise than by Lower Canada law. I concur in dismissing this appeal, without deeming it necessary to re-consider the reasons assigned for the judgment in Pridham' s case. Morrison, J. — I am of opinion that the defendant is entitled to judgment. It is admitted in the case that the note, the subject of this action, was made at and payable in Montreal, in Lower Canada, dated 26th of October, 1857, payable two months after date. That after it fell due five years had elapsed before the commence- ment of this suit. By the 31st clause of chapter 64, (Con. Stat, of L. 0.,) it is enacted, that all notes due and payable in Lower Canada, made after the 1st of August, 1849, will be held to be absolutely paid and discharged if no suit or action has been brought the reon within five years aftef the day on which such notes became due and payable. I can hardly find words stronger or more pre- cise to indicate that the intention of the legislature was to extingush the liability of all parties on any such note ; nor can I place any other construction on the clause itself. This is not the case of a foreign law. It is our own lecrislature that npeaks ; and if the legislature had in contemplation that the clause in effect should be read as contended for by the plaintiffs, that any such note ERROR AND APPEAL REPORTS. when prosecuted in the courts of this section of the province should be subject only to the Statute of Limi- tations in Upper Canada, it would, I think, have so manifiested its intention by express words : and as I see no ambiguity-nothing inconsistent or unreasonable in the enactment itself, I am bound to read it and construe It according to its plain literal meaning, and I do not feel myself at liberty to restrict its operation. I am therefore,of opinion that the plaintiff is barred, and that the judgment of the court below should be affirmed [Before the Hon. J. /; Vankoughnet, Chancellor, The Hon. W. B. liichards, Chief Justice of the Common Pleas, The Hon. Vice-chancellor Spragge, The Eon. Mr. Justice Hagarty, The Hon. Mr Justice Adam Wilson, The Hon. Mr. Justice John Wilson, and The Hon. Vice-Chancellor Mowaf] Oh an Appbaii pkom the Court or Qcksn's Bskoh. Westacott v. Powell. Seduction— Loss of service— Birth of child. In an action for the seduction of the daughter of the plainUff the action may be maintained before the birth of the child • and ' Per curiam, the statute (7 Wm. IV., chapter 8. Con. Stat.' U. C chao 77) does not dispense with evidence of a pecuniary loss or damage" such as was required before the act-lSpraggc, V. C, and V WUion, J., dissenting.] This was an action for seduction of the da'ughter of the plaintiff, tried at the assizes held in the city of Toronto in the spring of 1864. The declaration was in the common form. Plea, not guilty. The only evidence called by the plaintiff was the daughter, who stated her age to be sixteen years, and proved the fact of sexual intercourse in the September previous, and of her being then pregnant in consequence of such intercourse. ^^ VOL. II. 525 lfi64. ShirifT V. ' ■ Uolcomb 526 ERROR AND APPEAL REPORTS. 1865. The jury roturr od a verdict for the plaintiff for $300, and in the following term a rule for a new trial was moved for, on the ground that the verdict was contrary to law and evidence, and upon the grounds of misdirec- tion in this, that the learned judge charged the jury that the action for seduction would lie before the birth of the child. This application the court, during the same term, refused ; but gave the defendant leave to appeal to this court, which he accordingly did, assigning as reasons, that the evidence did not shew any cause of action, and the learned judge at the trial should have directed that, the action would not lie before the birth of the child, or evidence of sickness, so as to occasion loss of time. Mr. Bell, Q. C, for the appellant. Mr. Anderson for the respondent. ' Kimball v. Smith, (a) L'Uaperance v. Duchene (6) Mcintosh v. Tyhurst, {c) Egan v. Q-rimwood, {d) Hewitt, V. Prime, (e) Crrinnell v. Wells, (/) were referred to by counsel. The points discussed are fully stated in the judgments. Richards, C. J. — This appeal must be dismissed and Judgment ^jjg judgment of the court below affirmed, as the only ground of objection to the judge's charge on the trial, and the only ground taken in moving the rule nisi, was that the action would not lie until the birth of the child. At common law the action lies for the loss of service, and as soon as the plaintiff's servant becomes ill, in con- sequence of the wrongful act of the defendant,' the right of action is complete.. It is true the defendant states in his grounds of appeal that the judge ought to have (o) 6 U. C. Q. B. 82. (c) 23 U. C. Q. B. 565. («) 21 Wend. 79. (6) 7 U. C. Q. B. 146. (d) 1 £xch. 61. (/) 7 M. & Qr. 1088. KRROR AND APPEAL REPORTS. 627 1 r 1 r ^u^ ^'"' '^' "''*'''" ^""'^ '^°' l'« before 1865 the birth of the chad, .. evidence of sickness, so as to ^-v— occaszon loss of time; but as this latter ground was not """l"^'' taken either at the assizes or in the court below it ""'"• cannot be urged here. ' TV^'/n ^^l ^^''* ''^ **"' Provincial Statute of 7 Wm. IV., (Con. Stat, of Upper Canada, ch. 77,) I concur in the judgment of the Court of Queen's Bench, in Kemble V. Smith, (a) that the legislature did not contemplate any other change in the law in relation to the action of seduction, than simply to enable the father, or, in the- event of his death, the mother, to bring the action, though the daughter was not at the time residing with him or her. In England, the father has been permitted to recover where the daughter was seduced whilst tempo- rarily absent ; and in a comparatively recent case, (b) a verdict was sustained where the daughter was Imng with the defendant, attending his shop during ,„,«.«„* hs wife's absence, and this on the ground that th! "• plamtiflf had lent his servant for a short time to the defendant, during which period he seduced her. In many cases the service of the child, in this limited sense, is for the benefit of the father, for he oft'en receives the reward of her services, of which he is deprived when she is unable to labour, in consequence of the wrongful act of the defendant. Even where he does not receive directh the wages of his daughter yet when she clothes and supports herself from the compen- sation she receives for her own labour, she reb'eves her father from the burthen of supporting her ; and when she is unable to provide for herself in consequence of illness arising from the defendant's wrongful act, and the father does support her through her illness, he then sustaig a direct pecuniary injury from the defen- dant's unlawful act. I see no practical difficulty in working out the provisions of the statu te which has (a) 5 U. C. 63. (A) Griffith v. Teetzen, 16 C. B, 844. i 5^8 ERROR AND APPEAL REPORTS. 1865. now been nearly thirty years in force in this province. It may be urged that the decisions under it have or may involve some logical absurdities, such as requiring some loss of service to be shewn, where the statute says it shall not be necessary to give proof of any act of service ; and no proof shall be received to the contrary. But it seems to me, as to the point now under discussion', that what the legislature meant was simply to make the service, to whomsoever rendered in lawj be considered service to the parent, and to place the law in this country in a)l cases just where it is in England, when the action is brought by the father and the daughter resides with him, and there is no plea denying that she is the plaintiff's servant. The case of Eager v. Cfrimwood is authority, that in such a case, before the actioh can be sustained, some loss of service arising from the defendant's wroagful act must bo shewn. I think in the case before us, if the jury were satisfied .that the plaintiff's daughter was with „e„t child by the defendant, and that she had been pregnant for several months, they might assume some slight illness or inability to serve as effectually as she did before the ' wrongful act of the defendant ; and, if so, the legal right of the plaintiff to maintain the action would be established. In discussing this matter, I am only considering the effect of the first two sections of our statute, and do not doubt that under the third section, when the action is brought by the master, the same evidence would be necessary to maintain the action as in an action of the same kind in England. I am therefore of opinion that this appeal must be dismissed, and with costs. Spragqe, V. C. — It is material to consider the state of the law at the time of the passing of our Provincial Act, 7 Wm. IV. While service, and loss of service, were in theory the BRROB AND APPEAL REPORTS. 62i) legal foundation of the action, it had been determined that 1865. no evidence of actual service rendered, was necessary • that service would be presumed ; that it was sufficient if the daughter was under the control and command of the parent, so that he could require service if he desired it • and as to loss of service, very slight evidence was necessary In case of the birth of a child, loss of service followed of course ; and so in the crse of sickness caused by pregnancy : and if Lord Denrnan was right, m Joseph V. Cavandar, the birth of a child was not necessary to constitute the action, but the fact of pregnancy was sufficient. It would appear rather as if the loss of service must be negatived :, as if it must be shewn that, from the relative position of the parent and child,, there could be no loss of service ; as where the child was living in service away from the parent, or an apprentice with the person who seduced her. or otherwise absent without any intention of returning to her parent; an^ even in the case of absence, the courts judgment have got over the difficulty where the legal reZyl ' position of master and servant could still be maintained as in the case of the absence of th Ahild on a visit by reason of the animus revertendi. ' In England the right to service and the loss of service have long been regarded as mere technical grounds for the maintenance of the action. As long ago as when Lord Eldon was Chief Justice of the Common Pleas we find him using this language .— " 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 chid : m such case I am of opinion that the fury may take' into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter," &c.. Bedford v. McK-H • f-^ ^-A ■' judgesjavejxpre ssed the like sentimen t in different («) 3 Esp. 120. ~~~ 630 ERROR AND APPEAL REPORTS. 1866. language. Indeed the amount of damages given in such actions and sustained in banc, shews conclusively that the loss of service is the technical cause of action only: while, in the language of the late Chief Justice, Sir John B. liobinson, "the grievance which the law regards and desires to afford redress for, is the injury to feelings, the mortification, the domestic unhappiness, the blighted hopes, which follow the seduction. L'Uape- rence v. Duchene. This being the state of the law, the statute of William was passed, and it recites, " whereas in some cases the law fails in affording redress to parents whose daughters have been seduced." The seduction is put forward as the wrong for which the *parent ought to have redress ; and in the failure of the law in some cases to afford such redress, is the defect in the law which the new statute was avowedly intended to remedy. If the law failed in jndcmtnt Bome cascs to afford redress by reason of the existence of mere technical difficulties, it would certainly be the . intent of the ne^gr statute to remove them ; so that they should no longer stand in the way of redress for that which was the real injury. It may be that the statute does not do this effectually, but we must construe the statute, keeping in view the intent with which it was The great technical impediment in England has been, that the right of action was founded upon the rela- tive position of parent and child, being, quoad the action, that of master and servant ; whence it fol- lowed that the action failed in certain cases, to which 1 have referred ; the child being a hired servant elsewhere, or an apprentice, or so absent as to negative for the time the right of the parent to the service of the child. The failure of justice in this class of cases is remedied by the first section of the act, which provides, that in cases where the parent could maintain the action, in case the child were dwelling under his or her protec- BRROR AND APPEAL REPORTS. 631 that the failure of justice in thj, „,„,, ^f "^ piu. remedied, because I apprehend the eeur.s weuld fee no ' d^culty ,„ holding the action to appl^ where .E .b.eneewa,not.ill after the scduction"i take" the t.me of »edue.,on i, named in the Act, because the le of seduofon .s .ntended .0 be made the cause of aetior no proof .0 the contrary shall be reeeted "ih" .v"] .ectton provide, that any person, other than the pa '. who, by reason of the relation of master and se,™ "r o^erw.se, wond, before thepaseingof the aet.h ben entitled ,„ „ ,.,„ .^^ ^^.^^^ ma nZ it if the parent who might sue according ,0 the ae' eh. 1 of the child; or, being resident, shall bring no actLn within SIX months thereafter. ^ ^ witbirf f ^ "" ""^ """'"^ ««"™ only dispense. with proof of service, not with proof of loss of serZ ? dees more than dispense with proof of eervilrir n no evidence to he given in disproof of •[; .„ ' 'efir ^7 t.on gives a right of action in circums. nee, wher there couH be no service I, doe, appear to me thai e re „ " proof of loss of service, i, tonullify the provision, of IT seetiens of the act, especially the J rT here': hat the child 1, not under the command and control of he parent-that the parent i, not in a pcition to elact service of the child, there can be n'o pr of of s service, .imply because loss of service is incon Len with the relative position of parent and child. It will hardly be contended, I suppose, that loss of serv.ce must be proved in .ome ea.e., ^nd need n^t 632 1865. ERROR AND APPKAL REPORTS. be proved in others ; that where there is service, then loss of that service must be proved. There is nothing in the act to indicate this : the object, scope and tenor of the act are all against it; and it would be an anomaly. The second section of the act is the one that applies to cases where there may be actual service. But suppose evidence offered to shew a state of circumstances in which, though the child w- re living with the parent, there could be no service rendered, or that in fact no service whatever was rendered, such evidence would not be receivable. It would surely be inconsistent with the rejection of such evidence to require proof of loss of service. I think that the preamble and the sections of the act to which I have referred, all manifest an intention to abrogate the technical ground, upon which the action was previously founded, where the action is by the Judgment, patent. One phrase in the 2nd section may appear to militate against this— that acts of service shall in all cases be presumed ; but this single expression is not sufficient, I think, to countervail so much that is of an opposite tendency. My conclusion is, that loss of service need not be proved. What is proved in this case is the seduction, and consequent pregnancy of a young creature, who, when she gave her evidence, was but sixteen ; proved, it must be taken, to the satisfaction of the jury. Looking at the statute, independently of the ruling of Benman, C. J., I think the cause of action was complete without the birth of the child, and without proof of sickness, or of a condition entailing loss of service. I think in the 3rd section the birth of the child is merely made the time to limit the period, after which another than the parent may bring the action ; and that there, is nothing in it to prevent the parent bringing the action before that time. It has been suggested, as a difficulty in the way of bringing the action before the birth of the child, that the 1865. BRROR AND APPEAL REPORTS. lo«8 Of service and expense attending that event might fhlh TfT '^"°"'°" ' *^« '^"«^«'- ««^™3 to be tha or ^h h d ''\'^'"^ ''' natural result of th for which damages have already been recovered can furnish no new cause of action. ' Hagakty J.-I think that our statute has had theeffect of establishing conclusively the relation of mastertij ervan between the parent and a daughter said to be educed; and that any wrong done to the servant the effect of which as to render her less able, or unab e to do her master's business, is a good cause of action It 18 unnecessary to prove that she was in the actual service or actually performed any service: the s atute grves her that position, and if she be disabled fm performing or doing service, the law assumes there wa^ such service to be done, and will receive no proof to 2 contrary. It contents itself with proof of the disability ' .r lessened ability .o do the service. This, I think s , the vaew of the courts heretofore ; and L'Usperance y '"^"*' J)uchene takes that view in substance. A father f consider acquires no right of action against a defendant merely for an illicit connexion with the daughter not causing 11 ness&c. As the late Sir J. B. '^:;;. H says Few things could be less desirable than that parties should be encouraged to suppose that an acltn for seduction could be maintained upon the mere proof of criminal intercourse, not followed by the birth of a child, nor even by pregnancy." I think the action is maintainable before the birth of a child, If proof be given of a pregnancy, pro ed to have caused illness or weakness, in any sensiWe degree affecting the ability of the servant to work for, or frve e master, (i.e., in nearly every case the parent If any injury or sickness followed the act of inter course creatine thfl aam- ''i-hn^- -h- - ,, , ^ **•'" ■^'SuwDliiiv, illo cause 01 apfinn would be equally complete. °° I cannot accede to the proposition stated thus, that VOL. II. 5SB 584 1866. WtJttoott Powoll. ERROR AND APPBAL REPORTS. « conn' don, followed by pregnancy, gives a cause of action. A Id to it the qualification above suggested, as to disnbility, and I think it ia law . Without such addition, a very absurd consequence would follow; namely, that if a daughter had connexion with a person, and in four or six weeks after was accidentally killed, and on examina- tion of tho body it was found that pregnancy had ensued, the action would lie from that fact, although it had never affected her ability to servo her master, and although she herself might bo unconscious of its exis- tence. I see no other course than to adopt the view above suggested, that no action lies unless the ability to serve be affected. But as tho only point raised on the rule in the * Queen's Bench was, whether the action would lie before JiMUmtBt. *'^® birth of a child, I think tho judgment below must be affirmed. For the reasons above given I think the action may, under certain circumstances, lie before the birth of a child. A. Wilson, J. — The reasons of appeal go beyond tho rule moved for, and if the defendant were held strictly to the terms of the rule which he moved, the appeal should be dismissed, and, as I think, must be dismissed on this ground, because it is perfectly clear that, as the action for seduction will lie before the birth of a child, as a mere abstract proposition of law, the learned judge was quite right in directing the jury accordingly. But this case has been argued, though not with the consent of the plaintiff's counsel, upon that portion of the reasons of appeal which states that the action will not lie before the birth of a child or evidence of sickness so /lo */> nnnno{nvt Inaa nf tivno and ik baa bflpn 'nrpaapd bftforfi US, because the learned judges of the court below, it is eaid, understood the motion to have been made in the ■RROR AND APPEAL REPORTS. 686 larger sense, and refused it peremptorily without com- 1865. menting upon the precise nature of the motion, in order "^^ — ' that the case might bo reviewed on appeal, if the '"'-~" defe.Khmt desired to prosecute it further: that wo '"'^*"' ought now to give our opinion on the rule as it ought to have been, and not only aa it has been moved. Judges do occasionally express an opir. on beyon. the strict boundary of the proposition befort tbcra, but aot very frequently, because it is not binding in 1 -, !vr,,ever fully it may be accepted as a correct exposition of the law. As the case has been argued beyond the terras of the rule, I shall express my opinion quantum valeat. But for our statute relating to this kind of action, this declaration would bo held to have contained threo traversable facts. Firstly, that the woman was the daughter or servant of tho plaintiff. Secondly, that the defendant was guilty of tho act charged upon him ; and Thirdly, that the plaintiff had, by means of the defen- dant s act, lost the services of the woman. The second and third facts are included in the general traverse of not guilty: the first must be the subject of a special traverse. In actions of this kind, when they are brought by a master and not by a parent, the declaration must, notwithstanding our statute, be framed as at the common law, and all these three facta are still traversable. In this case the relationship of father or master is not denied. The only facta then traversable at the common JndfBtnt. \ii^iih 536 ERROR AND APPEAL REPORTS. 1865. law are, that the defendant debauched and carnally knew ^^^^J^ the young woman, and that his act occasioned loss to po^iu. the plaintiff. Now the statute declares, that when the parent brings the action it shall not be necessary to give proof bf any act of service performed by the person seduced, but the same shall in all cases be presumed, and no proof shall be received to the contrary. From this it follows that it would be an idle traverse that the plaintiff had not lost his daughter's services, if the defendant could have specially pleaded to it ; it cannot therefore be covered by the general traverse of not guilty. I see no difference between giving no proof of any act of service, and giving no proof of any loss of service, for if there be no act of service, there can be no loss of service ; and if there is to be no proof received denying any acts of service, it liiust be because no acts of service are necessary. Loss of Judgment. Service implies of necessity that there, is a'servico which has been lost, but if the service is dispensed with, or need not or do not exist, and if by law its non-existence is not even to be affirmed, it is unreasonable to say that this same law still contemplates a loss of service as surviving ; it is an impossibility, as well in law as in rea- son, and therefore I treat the statute as dispensing, by ipferenco irresistible, with proof of loss of service as well as of acts of service. In this view, what is not to be proved and is not to be controverted but is to be presumed, cannot form an important ingredient in the action. The plaintiff is obliged only to state such circumstances as are necessary to constitute the charge which is made, and all beyoi.d is surplusage, for the object of pleading is to evolve some question either of fact or law disputed bo ween the parties, and mutually proposed and accepted by them as the subject for decision,— ^it is to ascertaur the subject for decision. But aa no proof is to be given of the loss of service, and none is to be received to the contrary ; it is mani- fest that the question of loss of service is not inteoded ERROR AND APPEAL REPORTS. .1, and ,t can never form the subject for decision. Westacott i am therefore of opinion, as the recovery must always '"'^■'"• be secundum prolatd et allegata, thatit is not necessary e anv all"':" " '1°"^'' '^ ^ P*^«"*' *^^* ^^cre sho fd be any allegation whatever of the loss of service. It is now by the statute an idle and superfluous sLment! What then remains to be tried in such a case, when not gu.u 1, • ,,,,^, , ^^^^ ^^^^ ,jhen . daughter. If this be so, then the remedy is given to e parent for the mere seduction of his child, 'and the act of fornication, if it constitute seduction, i made a punishable offence. This must be the result Brhow can It be avoided? The declaration is plainly mad! that the parent may maintain an action for seduction diXwaTaTti!::?' r'^' -- ^^^^^o: sr,-- aaugnter >^as at that very time serving or residing with another person upon hire or otherwiL Sup^ofeThe defendant to entice the daughter from schooTand to cohabit with her for some weeks, can it be said, although he daughter has not had the further mis/ortune lo become pregnant, that an action cannot be maintained under this statute, merely because acts of service have not been performed by the child, and loss of serv L has not been sustained by the parent ? v ce . ser^m*^ T- ^"^^''^ ^" ^"^^ ' '''' ^^»^«r acts of iT . , . '' *^'' '"*'^'"S and prostitution of the child to be left unpunished ? Is it no injury to he parent ? Is all recompense to be denied fo'r the !nj r^ which has been done, because that injury has not been .creased as much as it might have been'? and aceo" ding to this reasoning, should have U.n b-^for- ^h parent had any cause of complaint. '^ ^ This is to repeal the statute, and to revive the fiction . « M 588 1866. ERROR AND APPEAL REPORTS. of service, but not as before, to afford a remedy ; but for the mere purpose of defeating redress for the only actual wrong which has Jbeen done, and which always was the only ground upon which damages were awarded. The decisions of our courts have certainly not been in accordance with this view. But according to the best opinion which I can form from the language of the statute, I think the legislature has expressly given to the parent a remedy against the seducer of a daughter for the act of seduction alone ; that act having always been the gravamen and sub- stantial ground of actiorj, and the loss of service being merely the form to be complied with in any way, so long as it was complied with, to enable a recovery for the substantial ground of action to be had. No doubt this may be a dangerous power to be placed in the judgment, hand of a parent, as it may be enforced on every occasion when the daughter may be pursuing a life of prostitution ; and yet there can be no difference made between the child who has made but the one lapse from virtue, and whose single act has led to her ruin and brought affliction upon her family, and the child who is following a course of profligacy from choice, unless in the latter case the act of fornication can be distin- guished from an act of seduction, which it is not impos* sible to do. But if the statute does not confer this right on the parent for the mere, act of seduction, and if it is not necessary that he should have sustained any loss of service to entitle him to sue, when is it that his cause of action does accrue ? Is it to be upon the delivery of the daughter of a child, and if so, why then ? Her delivery does not necessarily, in law, imply that there has been a loss of service, and it may happen that she may not be delivered at all; she may die in child-birth, or before the time of her delivery has arrived. Is it ERROR AND APPEAL REPORTS^ 539 Judgment. my IZ \7J7'""'"^'r^ '' '°' "''^ '"^ ' Ther. 1865. 71 iM . '"■"!" """""S ="* «">»• I» it "hen -V- xi ,. --""'6 oui;u lime. IS It when he parents d.cover the injury they have suffeverb; ^e corrup ,on of their child ? If not then, why no ^ What further ,s to be waited for under this statute ? ' lean see no reason why the parent should not sue, then and If so, the remedy is, as I think the statute has n^ad^ t, for the mere act of seduction. The law would seem has:i:;Tft'""" ^" ^-vingwhol.yunprote:ted ti: verv2 .rr"' '^''P''"^ ^^'^^' incongruous and V y unsa xsfactory mode of redress, in which the person not directly wronged is the person who gets the recom pense,^and the person who is the most wrtged recovl The legal principles in awarding damages in this form it;; '"^ '"'^ ^°"^ '''''^^^'^''- '-- V ^t The mere fiction of loss of service, standing as an Impediment in the way of a recovery for the act afwron, has ever been practically regarded as not salfac' ory or creditable to the law. The substantial rem I" has always been for the wounded feelings of the parent "for the loss ^hich the father has sustLed, bv'be" deprived of the society and comfort of his child.^nd by the dishonour which he receives; for the dist ess and anxiety of mind which the mother has felt aTd for losing the comfort, as well as the servic s of hL daug ter, in whose virtue she can feel no rolat on.'' «nnl '' "^'''^ °^ *^« ^''^tute encourages som improper actions, it is yet infinitely better ul anVof ""'" 'r "^*^^^"^"^ influences of th courts and of juries, than .that the most afflicting and lasting injury which can beful a family should b^ left Drov.d7n'f;^ T' '""^ ^""g^*«^ cannot be p_roved^ve^ house, (o) II East 23. if. WMtieott Powell. 540 ERROR AND APPBAL REPORTS. 1865. and because her father has not lost her services : facta which scarcely ever were proved but by the distortion and perversion of the evidence, and by the acceptance of the wildest fiction, for the purpose of defeating the settled rules of law. I think the declaration sufficient in form, and I think the evidence is sufficient also to sustain the verdict, for it shews the plaintiff's daughter was an unmarried woman, and had been seduced, and was pregnant by the defendant ; pregnancy being certainly sufficient to confer a full right of action on the plaintiff; and from what I have said, the mere act of seduction is now, in my opinion, tL^ true and only cause and basis of action under the statute, when * the action is brought by a parent. I think, therefore, a declaration which alleges that the young woman was the daughter of the plaintiff,* and Judgment, ^as unmarried, and had been seduced by the defendant, would be a sufficient declaration under the statute, for it contains all that it is necessary to prove, and therefore all that it can be necessary to allege. MoWAT, V. C. — I concur with the other members of the court in holding that an action of seduction will lie before the birth of the child. As to the question which was argued before us on the construction of the Upper Canada Statute, and on which 'there is a difference of ^ opinion amongst us, I may say that I agree with those who are of opinion that the statute is not so expressed as to dispense with the technical necessity, in a suit like the present, of giving the same sort of evidence as was previously necessary, of damage, however slight, having been sustained by the father, as the consequence of the defendant's wrongful act. The other members of the court concurring : Appeal dismissed with costs. BRROR AND APPEAL REPORTS f On A» A-'PftlL PBOM THE CODBT OF ChanOBRI. Norwich v. Attorney- Gkneral. Advance under Uon.olidaUd Municipal Loan Fund \ct-Di»cha.n . railway stockholder, by an of ParliamJ r '^'^ ^^"'""St of equitable relief. ' "-^ ^ '"■^'"""""-Coneequenl claim for Where a township municipality advanced a large sum of n,.... . the new corporal, ons from the construction of the onVinall IJ Ea,lw.y Oomp„„y, „„der the authority „f „« C„n,o ! dated M„„,„pa, Loan Fund Aot, «20O,O0O, to aidt he eonstructton of the road which », to run thrlh -W. the t„.„sh,p. A by-law of the corporation had befn P .ously passed for that purpose; and government debentures were accordingly delivered to the .gen" of .he company, conforn,ably to the provisions of the ac" The company .1,0 gave their bond to the n,unicipali,y to pay the debt to the township treasurer, comforL bly to the terms of the loan. ^^laaoij By tneans of the advance in question, with other s.mtlar loans made by neighbouring municlpa/i L to railway company commenced operations early in 1854 rX:'^-_^-^- «/.^-^ ^over, whiohU'ttle' — .o„the.n t„,a,.,us 01 the iine ; procured the rieht of way forepart of the distance, and graded a s J. pS VOL. ir. i '^j> 1,11 1.' 9 642 ERROR AND ATPJ^AL REPORTS. 18f)5. of the road. Nearly $800,000 were expended in this ^^^;^ way ; but tlie work -was stopped for want of funds m /• January or February, 1855. Accordinof to Uie contract, Geuerai. the road, including rolling stock, was to cost ^!, 824,000: but only an inconsiderable portioii of \vhat wiij rrquired by ti»o contract had been constructed : and unpaid oall.^, *to tho amount of about ^2*.0,0C0, coaslituted all tho exisuiig assets of the company. Matters stood irs this ray till lli> 19th of June, 1856, when ihe act of ];):!; Victoviii, chnpter 74, was passed; the 7tli scciion of w.iic'i aiitlio 'ized the shareholders to surrender their stock, and be then discharged from any further liability. Several of the stockholders were discharged accordingly, who were responsible for the claims ag.'iinst them. But it appeared that the muni- cipalities had agreed to take the company's bonds for the previous advance, which should be postponed to first mortgage bonds to be issued by the company, to tlio amount of $4,000,000. This agreement was made on the 10th of March, 1856, and was confirmed by the act. fitottment. The Woodstock and Lake Erie Railway Company was amalgamated in 1858 with the Amherstburg and St. Thomas Railway Company, under the name of " The Great South Western Railway Company :" and the deed of amalgamation was confirmed by the 22nd Victoria, chapter 118, (passed 18th August, 1858.) The 23rd section of this act annulled all contracts relating to the lines of road of either of the amalga- mating companies ; and the new company Avaa released from constructing the branch from Woodstock to Lake Erie, till the main line she ' be completed, and it earneJ eight per cent, over all t .^ nscs. It was also recite, in the deed (which is set out at length in the act) that a mojority of the municipalities interested consented to the amalgamatioD. KRHOK AND APPEAL REPORTS. 643 1865. The 22nd Victoria, chapter 90, (ind session) repealed VTul?''!""^ "''"' '"^^ ^'^^'"^^ =* "e^v company, called "The Niagara and Detroit Rivers Railway Com- ''""'"" pany,' which was authoriznd to construct a railway fcT fvom Oafton on the Niagara River, passing through .he towns of Suncoe and St. Thomas, to some point on the Detroit River, near Windsor or Sandwich, with a branch from the Eastern terminus to Fort Erie and requiring the new company to construct the Woodstock and Lake Erie branch, as soon as the net revenues derived from the other parts of the line should amount to eight per cent, of the capital expended. By the ^7th section, the now company were required to assume and pay to the provincial government the sums loaned by the municipalities, with interest. The new company did not construct any portion of their lines. The Woodstock and Lake Erie Railway Company paid the first instalment of principal and interest due on the loan: but no subsequent pay- st.u«.nt. ment was made by any party. Tlie Receiver-General, therefore, early in 1862, reported the matter to his Excellency the Governor-General, who accordingly issued warrants to the sheriff of Oxford to collect the arrears, conformably to the provisions of the Municipal Loan Fund Act. The Township of South Norwich then filed a bill of complaint m Chancery, praying to be relieved from any further liability, on account of the said acts of the Legislature, which, they charged, had prejudiced them. Ihey charged that, under the circumstances, they were only sureties for the railway company, and that, as the Legislature had, in effect, released certain of their stockholders, and postponed the construction of their line of road, they were in equity discharged from any further liability. They also charged that the Crown Had taken the new railway company as its debtor '■^:l i^P' 544 ERROR AND APPEAL REPORTS. 1865. instead of the municipality : and they prayed for a perpetual injunction against the sheriif. Norwich ▼. Attorney' Q«n«ral. •tettrntat Besides the Attorney-General and the sheriff of Oxford, the township of North Norwich (one of the two municipalities into which the old township of Norwich had been divided in the meantime) was made a party defendant ; and some contingent relief was prayed against them. The answer of the Attorney-General admitted the acts of the Legislature set forth in the bill, but put the plaintiffs to the proof of the other allegations of the bill. He also demurred t^ the jurisdiction of the court. The bill was taken pro confesao against the sheriff of the county of Oxford. The answer of the township of North Norwich admitted all the allegations of the bill, and submitted their rights and interests to the protec- tion of the court. An interim injunction was granted on the application of the plaintiffs, and the cause came on for examination of Avitnesses and hearing at Hamilton, in March, 1863, before his Honor V. 0. Spragge, when the facts above set forth were given in evidence. It further appeared that the construction of the railway along the original line would have greatly benefited the plaintiffs ; that the money expended had been of no benefit to them, and that the stockholders refused to advance any more money before the work stopped. The secretary of the original and amalgamated companies also testified that if the stock had been paid up, there would have been, he thought, sufficient funds to finish the work, but it did not appear whether he referred to the old or the new company's stock. He also testified that, in his opinion, the line from the Niagara to the Detroit River would pay eight per cent, J if built through from one river to 1 the other. i ^ i i BRROU AND APPEAL REPORTS. 546 _ After argument the court decided that they had no 1865. jurisdiction, (a) and directed the bill to be dismissed ^"vw with costs. But before the decree was entered, an "":'* order in council was passed (June 1864) waiving the wT question of jurisdiction, and submitting to have the cause decided on its merits, as the plaintiffs could not otherwise have justice done, owing to an omission in the acts of parliament relating to the court. The cause was then, 30th June, 1864, brought before the court on the morits, when his Honor Vice-Chan- cellor Spragge gave judgment conformably to the prayer of the bill ; aiid a decree was made accordingly. From that decree the Attorney-General appealed, which came on for argument on the 29th December, 1864. Mr McGregor, for the appellant, contended that the municipality was the principal debtor, and not merely a sure^. In proof of this he referred to the ConsoH- Arg«.„..t dated Municipal Loan Fund Act, (16th Victoria, chapter 22, sections 5 and 6,) which directs that the advances be made to the municipalities, not to the parties who are ultimately to receive them, and that the remedy is given against the former exclusively. He also shewed that the by-law of the township (dated 1st December, 1853) authorized a loan by the township to the company' to aid in the construction of the railway, and directed the money to be borrowed and raised on the credit of the Consolidated Municipal Loan Fund. He also shewed that, although the debentures were delivered to the company by the Receiver-General, they were debited to the municipality, so that the p .vment to the company was merely to save trouble, .- luey were ultimately to receive them, and was no indication that the Crown ever looked to the company as its debtors. He also referred ,<"' mi (a) 9 Gra"* 663, 646 ERROR A.. ■> APPEAL, u PORTS. 1805. to the bond given 1>;/ iho company to the municipality, which recited the loan by the hitter to the former, and bound the company to pay, not the Receiver-General, but the treasurer of the municipality, '^^'» 650 ERROR AND APPEAL REPOUTS, 1805. adversely before, might arise in favor of the speedy construction and successful workin{» of ihc line. Vankouqhnet, C. — It is to be borne in mind, in the discussion and consideration of this case, that the Government are not, or at the time of the various occurrences referred to in the bill were not, liable to the holders of the debentures therein referred to for their payment ; that these were only payable out of the consolidated municipal loan, to be provided and secured under certain stringent regulations, calculated to give the debentures, issued on the credit of it, value ; one of the most important being the assurance implied, and indeed furnished by their issue, that the Government had seen that they were properly and safely secured in the provision of a fund ample for their payment. Judgment. In support of the bill many arguments occur to one's mind. Suppose the Legislature authorizing the issuing of debentures for the construction of any particular •work ; the debentures issued, and the Legislature then destroy that work, or rather declare it shall not be performed, who is to bo the sufferer? Is it the municipality or the holders of the debentures ? If there bo a surety to the Crown for the performance by a public officer of certain duties, and the Legislature alter these, the surety is discharged. Then here the Government advance out of the consolidated municipal loan fund certain moneys, to or for, the township of Norwich, which guarantees to replace them, having collateral security therefor, from a railway company composed of certain shareholders. This collateral security the Legislature destroys. Is not the promise of the municipality to replace the amount borrowed released by this act ? It may be said that the holders of the municipal loan fund debentures, having nothing to look to but this KRROR A\D APPKAL WEPOIITS. 551 fund, ought not by the act of tho Legislature to be 1805 deprived of it; and that the loss should fall on the ^^-^ municipality. But did not th. purchasers of the ''%'"' debentures rely as much on the good faith of the Legis- wX iature, as did the municipality i and, if the Legislature have taken away from the latter their means of obtain- ing the amount loaned by them out of these debentures, are the holders of them in any better position than is the Crown as against sureties, for any oiBcer whose duties the Legislature have changed ? or for the per- formance of a contract which the Legislature has materially altered? As to the case of a surety, the Crown of course can require fresh security to bo given If the municipality had issued its own debentures, constituting a direct debt to the holders of them, could It have repudiated them because of any act of the Legislature ? Here, however, the municipality is not the direct debtor ; the holder has no recourse against it, but only '"'*°"'°'- against the fund which the Crown is bound to get in • and if that fund fails by reason of the act of the Legislature, what recourse has the debenture holders ? Suppose the Legislature directly relieved the munici- pa ity without providing payment to the debenture holder, what recourse would the latter have ? Does it make any difference that the Legislature has so acted as to change the position and rights of the municipality, and thus relieve it indirectly through the aid of a court acting "on equity and good conscience," from the same liability? If the municipality promised to pay this . sum to the Crown on the faith of certain security known to the Crown, and which the Legislature has destroyed, ought its liability to the Crown to be greater than that of a surety whose position and responsibility are altered by the act of the Legislature? That the Legislature in its omnipotence may put on and take off burdens-may by its interference with m 552 ERROR AND APPEAL REPORTS. 1865. private charters and rights cause losses and profits, cannot be denied, but the question remains who is to gain or lose thereby ? In this case is it the debenture flenerai. holders ; or the Government acting for them ; or the municipality ? Or, if the rights of the municipality have been impaired, may not the question be left to be settled by the two other parties. These are all considerations which might have weight, were we at liberty to use them, against the deliberate enactments and policy of the Legislature, omnipotent in dealing with private rights or public questions. We have only to read the various enactments referred to in the bill, and bearing upon the subject, to see that the Legislature considered it for the benefit of all parties, that the old company, upon whose security and obliga- tions the plaintiffs claim they had a right to rely, should be replaced by another company, which should assume the obligations of the former one, and that the liability of the municipality for the debentures issued on its credit should continue. This may be just or unjust. We have no right to say that the action of the Legisla- ture was a wrong to the municipality There is no evidence that it has been, even were we at liberty to consider it. We know that private rights are not touched by the Legislature without notice to the parties interested, and such consideration of them as the Legis- lature thinks it right to bestow. This much we may know judicially, for the Official Gazette, as well as the established practice of Parliament, informs us of it. Have we then, sitting here as a court, any right to say that the highest tribunal in the land, entrusted with the enactment of laws which we are to interpret and administer, has, in dealing with rights and interests which it considers it proper to legislate upon, acted unjustly, and that we are therefore at liberty to grant Judgment. However hastily we may think the Legislature has ERROR AND APPEAL REPORTS. 558 1866. aealt with individuals, wo are not at liberty, for that reason, to release them. It is said, however, that the -v^ Crown being the prosecutor here, and having assented ''T'"* to the bill which altered the position of the plaintiffs, is a'neX in equity and good conscience bound to abstain from enforcing its demand. This is, however, confounding the position of the Crown as an independent body, with Its position as a constituent of the Parliament which enacts the laws. The Crown merely assents to the bill which the two other estates pass, to enable it to become a statute; and, in doing this, in no way derogates from Its own rights, or those of individuals, or adds to them any further than is provided by the statute itself; and It 18 a rule, that the rights of the Crown are not inter- fered with unless by the language of the statute' Here the Crown represents no rights of its own, but merely those of the public, or if it be so insisted on, those of a portion of the public; and as the Legislature, as such, did not mean to forfeit or prejudice these, it cannot be said that the Crown, as distinct from the other bodies of the Legislature, in assenting to their act intended to do so. We think that any mischief that may have been done to the plaintiffs can only be repaired by the power that occasioned it. Spraqqe, V. C.-I think the point that we have to decide comes to this, whether the acts of the Provincial Parliament, in regard to the municipality and the railway, for the construction of which the debt was contracted, from which it seeks to be relieved, have been such as to make it inequitable for the Provincial Government to enforce that debt. The debt, though due nominally to the Crowu, is in substance and effect a debt due to the province ; only due to the Crown in the sense of the Crown, quoad hor representing ihr; province as ita sovereign ; not dua to the Crown in respect of hereditary revenue, or the like The debt arose out of a loan of provincial funds, and Judemont 554 ERROR AND APPEAL REPORTS. 186B. its payment would be in augmentation of provincial ""v—-' funds ; and not the less so because kept separate, and Norwich „ . - - 1 n 1 for specific purposes, from the general revenues of the Attorney- Qeneral. province. Judgment. The fund out of which this loan was made has every mark of being a public provincial fund. It is raised under the authority of a statute of the Provincial Legislature. It is managed by one of the great officers of the pro\'ince, under the direction of the Governor of the Province in Council ; and it is raised upon the credit of the province, the debentures of the province being pledged for its re-payment. Loans from it are made only with the sancti(^n of the Governor in Coun- cil, his approval being necessary to the by-laws passed for that purpose by the municipalities. I understand a distinction is attempted to be drawn between the Government and the Legislature of the province. This must mean, if it means anything, that the Government ought to exact the payment of a debt, which the Legislature ought, by reason of the effects of its own acts, to forego ; and that a court of equity, seeing that by reason of the acts of the Legislature it would be unjust and inequitable to exact the debt, and having authority to adjudge whether the debt shall be exacted or not, should leave it to be exacted, because it is tie executive and not the legislative authority of the province liiat is the instrument of exacting it. This distinction appears to me most unsound. The debt in question is a debt due to the province ; the affairs of the province are managed by a legislature and an executive ; the name of each sufficiently designates the functions of each ; the name of the latter imports that its function is to execute what is ordained by the former. If it attenints to do tliafc which, looking at the acts of the Legislature, ought not to be done, it attempts to do wrong and ought to forbear, and if the law of the BRROK AND APPKAL REPORTS. 555 ^i province has committed, to any tribunal, authority to 1865. pronounce upon the propriety of the officers of the ^ — ^ — ' Government doing a particular act, it seems clear to me ^°"""' that it ought so to pronounce, irrespective of any such Gene?«7" distinction as is attempted to be drawn. In truth, to admit such a distinction would nullify the judgment that ought to be pronounced. The constitutional doctrii.e, that one branch of the Legislature is also the executive, makes it all the more clear that the executive ought not to do that which, looking at the act of the Legislature, ought not to be done. Because, to do so would be at variance, in spirit at least, with acts to which the Executive, in another capacity, had been a party. My opinion, therefore, upon this branch of the case, is against the contention of the counsel who represents the Attorney-General. I think we must look at the whole of the transactions in question as dealings ''"''«"""'• between the province ai.d certain people of the province, or, in niore correct legal phraseology, between the Crown and the f^ubject. And I apprehend that any equity upon which an injunction ought to issue to restrain proceedings at law between subject and subject to enforce a legal debt, under the like circum- stances, would be a good equity to support the plaintiffs' bill. The old statute of Henry VI'J.., la} gives effect to equitable defences to proceedings h t-'ie suit of the Crown to enforce Crown debts. It provides, "that if any pf vson or persons, o: whom any such debt ov duty is, or at any time hereafter shall be demanded or required, allege, plead, declare or shew m any =..-.A a cu arts, a ) fc'- i, perieoi ana auUicient (a) 38 Hon. y'lm, ob, 89, sec. 79. 556 ERROR AND APPEAL REPORTS. 1865. Norwich V. Attorney General. Judgment. • cause and matter in law, reason or good conscience, in bar or uischarge of the said debt or duty, or why such person or persons ought not to be charged or chargeable to or with the same ; and the same cause or matter so alleged, pleaded, declared or shewed, sufBciently proved in such one of the said courts as he or they shall be impleaded, sued, vexed or troubled for the same, that then the said courts, and every of them, shall have full power and authority to accept, adjudge, and allow ihe same proof, and wholly and clearly to acquit and discharge all and every person and persons that shall be so impleaded, sued, vexed or troubled for the same." It has been held that the Crown debtor may proceed by bill to set up his equity Against enforcement of the Crown debt. Sir Thomas CeciVs case; Ex parte Colbrooke, (a) and other cases. With regard to the relative position of the Govern- ment, the municipality, and the railway company, I did not, in giving relief in the Court of Chancery, proceed upon the ground that the relation of principal and surety was constituted between them. The plain- tiffs' contention is, that the railway company is the principal debtor, the Government the creditor, and the municipality the surety. To constitute this relation the Government must have made the loan to the rail- way company, and the municipality have been surety to the Government for its re -payment. Looking at the Municipal Loan Fund Act, it appears to me this could not have been the position of the parties. The Govern- ment could lend only to the municipality. It is true the money lent could be appropriated to no other purpose than a loan to the railway company, but it was lent to the municipality, in order to enable the municipality to lend it to the railway company. The relation of the parties thereupon being, the municipality debtor to the (a) 7 Price, 100. ERROR AND APPEAI. REPORTS. 557 ™St' "th""" '!""y"»P-.y aeblor .0 the .805. pecuhar, but perfect y «11 n„der,tooj. I, „a, assumed "■%*'' to be „ „„ch ,h„ ,„^„,, ^f ^,^^ n,„„;cipality to have "S.T tho ra,hvay oonstrucle,! as to make it wor h it3%vhile to borrow money in order to lend the „.,ne money the ";:rtr„T:;;"j7"™™'-'-e,::: pal ly to lend the money for the advancement of that partcular purpose ,„ the municipality: the Gov rn »en.. representing .he province, iudir'^cly beneZ: ho provmee rts.lf by advancing provincial money fof It is in evidence that the municipality would have benefited greatly by the construction of rte ^ailw"! »nd ,t ,s to be inferred that the expected benefit "as , , he reason which induced the municipality " borr" the money. It ,s indeed certain that it must'^have been and the concurrence of the municipal council of th' rate-payers, and of the Qovernor-General, is „ c Lat obtam .t : all must have concurred in th opin „ S sancLed "';,"'™""P»''.'J' ^ofore the loan could be sanctioned. The money in question in this case was ^-,y_3weiiw.totK;erntrrt::: In what was done afterwards affecting the pronosed a, way ,t was of course in the power of Sie ISZt have .nterfered more directl/than it did. ifiS ' """"•' "^'"^ ^upeaieu the act authorizing V},« VOL. ir. 558 ERllOR -AND API'UAL RKP0RT3. Norwich V. Attorney- Genoral. 1865. progress, and after the money lent, to the municipality had been transferred to the railway company, and had been expended in the work, surely nothing could be more unreasonable, more utterly inequitable, than for the Government under such circumstances to exact payment from the municipality. I am not supposing an act of wanton wrong done by the Legislature. It might bo an act of sound policy in view of the general interests of the Province ; and the acts of the Legislature, which have in this case altered the position of the plaintiff, are, it is to be assumed, acts of that character. But, suppos- ing a repeal of the Woodstock and Lake Erie Railway Act under the circumstances I have mentioned, it would hardly be contended, I suppose, that the Government could justly exact payment from the municipality. I think I may assume, that in so strong and clear a case the money could not be exacted ; and if this be so, what remains is only a question of degree. Are the acts of the Legislature in relation to this municipality and the railway, in the construction of which it was interested, of such a nature as to make it inequitable in the Executive Government to exact the money. I thought in the court below, and I still think, that they are. I have said that in my view of the position of the parties, the relation of principal and surety was not constituted: nevertheless the principles upon which equity proceeds in relieving sureties are not altogether inapplicable to the position of these parties. As I understand the law of principal aud surety, sureties are not relieved because the debt for which they are answer- able is not their own, but the debt of another ; to relieve them on that ground would be mere weakness, savour- ing rather of compassion for their position, than of sound reason. They are relieved from their contrwot, and the law does not do so sericas a thing as relieve a party from the nerfonnance of a contract on so untenable a ground as that. They are relieved, as I understand, because the person to whom they ar3 answerable has ERUOR AND APPEAL REPORTS. altered their position, in relation to the person who is answerable over to them. In dealings between subject and subject tthe power to do this can very rarely exist, except when the relation of principal and surety exists ; and for that reason it is, I appi-ehend, that we find the law applicable to the case of a party being discharged from liability to answer a debt, by reason of the deal'ngs of third parties, under the head of principal and surety. In speaking of the ground upon which sureties are held to be discharged, I do not forget that the fact of the surety deriving no benefit, and receiving no consideration for his suretyship, is dwelt upon as a reason for holding him only to the letter of his engagement; but still it is because his position to the principal debtor is altered by the creditor, that he is absolved from his liability ; and if that be the true reason, as ih my humble judgment it is, it must apply in all cases where there are two parties entitled in different interests to receive a debt due from a third party, and that party of the two, who, as between themselve" is the creditor, discharges the third party from paying the debt to him, who, as between the two, is answerable to the creditor. To illustrate my meaning, take this case : A. lends B. ^100, in order to his lending the same £100 to C, and B. does lend the money to C, and A., then acquits C. of his liability to repay the .£100 to B., (I am supposing of course that he has the power to do this.) It would surely be against the commonest principles of justice that A. ^ should still exact payment from B ; and so if A. instead of absolutely acquitting C. of his liability, so dealt with C. as to affect prejudicially the position of B. in relation to C, I can see no reason why the law of principal and surety should not apply. If the law of principal and surety can at all apply in this case, then I think the dealing of tho Legislature with the railway company has been of such a nature as 180,5 Norwich V. Attorney- Qencral. Judgment. 560 KRllOU AND APPEAL REPORTS. 1805. to bring the municipality within the clearest cases of "■^J^J;^ relief, by reason of tho position of the surety being Attorney- prejudiccfl by the dealing of the creditor with the Oinorai. principal debtor. This is so clear that it would be a waste of time to quote authorities in support of it. But if the case were entirely outside of the law of principal and surety, there arc still equitable principles which apply to it, and which entitle the municipality to relief. It is a rule, that where it would be against equity and good conscience to enforce a legal right, its enforcement will be restrained by injunction ; and that is what is in substance sought in this case. The Govern- ment is enforcing paymei^t of its debt by summary process given by the ' rtnte ; in effect, enforcing a legal right ; and an inju .,d'>fi to restrain this is asked for. Upon this the qUi.-»t;o;i arises, whether it is against equity to enforce t!il' legal right. It is unquestion- able that the position of the municipality has beeji ' changed, greatly to its detriment, by the acts of the Legislature. I need instance only two or three particulars. The extent and course of the railway have been changed. Shareholders in the railway company have been allowed to retire, and the company thereby rendered less able to meet its engagement to the municipality, the security of the municip&.lity for the payment of this very debt being thereby impaired. The whole property of the railway company has been handed over to another railway company, whereby the security of the municipality has been lost; and what is a stronger instance still, the construction of the railway itself is postponed in favor of a larger scheme, until a remote period and a contiiij^ency which may never arise. ifad|[meiit, Now the equity upon which I thought the munici- pality entitled to relief was, that the Legislature in the exercise of its paramount authority, did by i;hese acts thwart the purpose for which the money had been lent ; that it intervened between the municipality and the ERROR AND APPEAL REPORTS. 661 Norwich T. Atturiii-y- accomplishment of the object lur which the municipality 1805 became debtor to tl e Government; that of its own deliberate act it disappointed the purpose for which the municipality incurred the debt; and deprived the muni- cipality of the expected benefit for which alone it was incurred; and thi.t it caused an ent re failure of the consideration for the contract: T mean of the consider- ation in its true sense, which was not the technical one of the receipt of so much money; but the construction of the railway, towards thr building of whi.h the money was to be applied. In all this I suppose no capricious injury inflicted by tho Legislature, but acts which, while they did inflict injury upon the municipality, are for the general benefit of the Province. They are ho^vcver acts of a character which, If they had occurred between subject and subject would, in my judgment, have raised a clear equity in favor of the party who was injured by them. I do not know whether it has been determined that the statute of Henry VIII., to which I have referred, is in force in this Province. I apprehend that it is ; and that It applies to all debts of the Crown of whatever ^»''««"'»*- nature. I understand it to be so put in Manning's Practice, on the l^evenue Branch, in the Exchequer- (a) and this seems to be the case from the authori' ties to which ho refers. But even if not in force here, a Court of Equity ought, I have no doubt, to act in the spirit of the 79th section, and to allow the party charged with a Crown debt to shew "just, perfect and sufl5cient cause and matter in law, reason or good conscience, in bar or discharge of the debt or duty." It seems to me inequitable to exact payment of this debt after all that has occurred. The municipality contracted a debt, under certain circumstances, to the Crown, i.e., to the Province ; an d the Legislature of the (a) Pago 101. \H ^, ^^'^-- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 la 12.8 12.5 ■» •^™ !!!!■■ us 125 iu 2.2 - ll 1.6 I^Omm S>^A '^ ^} / /^PPi_IED^ IIVMGE . Inc .a:a 1653 East Main Street ssr ^ Rochester, NY 14609 USA ■SSS"^ Phone: 716/482-0300 -='-== Fax; 716/288-5989 O 1993, Applied Image, Ine , All Rights Reserved «■■ |\ ^ S> '^ ^ ''-^^ ^o^ '^ SV'" 662 KRUOR AND APPEAL REPORTS. 1865. Province, as an act of public policy, altered the circutii' *~'"^i'~~^ stances, to the great disadvantage of the municipality ; Norwich ^iT«i 1 r 1 I ' ,▼• and the Legislature appears to have felt that it was not General, jugt, undcr the circuHistances, to hold the municipality still liable, for it provided, by 22 Vic, 1859, chapter 90, section 27, that the new railway company, incor- porated by that act, should assume and pay to the Provincial Government the very debt in question in this suit. No municipality was made to intervene. It was made » debt, direct from the new railway company to the Provincial Government by that name. I should myself read the clause as meaning that the debt should be transferred from the municipality to the new railway company, and this was m*st just under the circumstances, and particularly in view of the fact that by the same act the whole of the lands and other property ol the Woodstock and Lake Erie Company were vested in the new company thereby incorporated ; so that the com- pany, against which the municipality had formerly its remedy over for the recovery of this debt, was thereby in effect annihilated. Surely the hand that did this ought not still to exact the debt, and, as I read the act, it was not intended that it should. Judgment. But, it is said, we must accept without question the decision of the Legislature. I grant that we must. I admit that a Court of Equity cannot grant relief on the ground that the Legislature has done what is inequitable. I place my judgment upon an entirely distinct ground, viz., upon this, that the Legislature having done what it has done, which I assume to be for the best interests of the Province, has made it inequitable in the Government to exact this debt. If the Legislature had enacted that the debt should still Jje exacted ; or if it were a neces- sary implication from what it has enacted, that the municipality should still be held liable, there would be no queafciou open for the decision of a Court of Equity ; but this is not the case ; on the contrary, so far as we have any indication of the mind of the Legislature, it is ERROR AND APPEAL REPORTS. 568 the other way, for it creates a new Ibbility in another 1865. quarter for the payment of the debt, in substitution, ^^-^ there is reason for contending, of the liability of the '""""'*' municipality. I think it may well be held to have been «*n«^'" in substitution ; for the necessary consequence of the act of the Legislature was in effect to cancel the bond of the Woodstock and Lake Erie Company to the municipality ; and instead of the like remedy being given to the muni! cipality against the new company, the act makes the new company directly liable to the Government; the previous direct liability to the Government, and the only one, was from the municipality; there was none from the Woodstock and Lake Erie Railway Company. By the act the Government obtained a new direct liability, and at the same time cancelled (in effect) the liability of the old company to the municipality, 1 think it unreasonable to hold that the Legislature could have intended any thing so unjust as to add to its own security (the security held by the Province), and at the same time destroy the only security held by the municipality. '"''«'°•""• This consideration derives additional force from the language of the clause: "The company incorporated by this act shall assume and pay to the Provincial Government," &c. The word ^'assdme," in this con- nection, appears to me to import that the new company should take upon itself the payment of certain debts which had been the debts of the old company, and instead of the old company ; the new company in that respect, as in other respects under the act, being made to take the place of the old company. I think that the proper conclusion is, that the new liability to the Government was in substitution of the former one. The position of the parties appears to be this : The Gov- ernment by its proper departmental office: , or the proper departmental oflRcer in the name of the Government, is proceeding to enforce this dfibt. • j.r.^ ti.o «,,,^;„:_„i:.._ files Its information against the law officer of the Crown, Betting forth certain equities, by reason of which it i- kli 564 ERROR AND APPEAL REPORTS. 1865. claims that the debt should be held discharged, and *T""'*'JT' that the proceedings to enforce it should not be taken. Attorna • '^^ ^^'^ ^'^® Attomej-Gcneral answers, admitting the o«ner»i. a^fg of the Legislature, upon which the plaintiffs' equity is mainly based ; but not admitting that the Crown is responsible for thera, or that the plaintiffs are entitled to the relief prayed ; and the answer submits that the plaintiffs are not entitled, upon their own shewing, to the relief prayed. The Attorney-General at the first hearing objected to the jurisdiction of the court, t^is being a revenue matter ; and that objection was sustained. In the order in council subsequently passed it is stated that " the Attorney-General recommends that he be author- ized to abandon the privilege of the Crown in respect of its freedom from jurisdiction before the court of Chancery, and so allow the matter to be docidcd by the .Tudgment. ^°"^'' "P°" "^ merits." And this recommendation was adopted in council. I cannot help thinking thft if the case is decided, upon the supreme power of tne Legislature to do as it pleased, without reference to what ought to be the consequence of the acts of the Legislature upon the municipality and its engagement to the province, a decision upon the merits of the cnse is intercepted, and the submission to the jurisdiction is simply illusory. When the case was before me in Chancery no such point was raised. The case was argued upon its merits, and I dealt with it and decreed relief in it just as if the like case had arisen between subject and subject : and no exception was taken to its being treated in that light. Supposing the Legislature silent as to whether the municipality should remain liable under the altered circumstances which it has created, (and that is, in my view, putting the case most strongly nguinst the muni- cipality), the point for the Court of Chancery to decide was, whether, upon the principles of a court of equity, ERROR AND APPEAL PEPORTS. the municipality should remain liable. If that point is not open for decision there is not, that I can see, any point at all for the court to decide; and the submission to Its jurisdiction was a mere idle form. « IIaoarty, J.—I think the municipality has wholly failed to establish the position so ably contended for by their counsel, that they in substance were sureties, and the railway company the principal debtors to the Crown. The township borrowed the money strictly on the Loan Fund Act, and the amount was dclr'ed to them by the Hoceivcr-Gencral, and I do not src how the Crown had nny debtor or any claim ;.ti.i„st any person or corporat'on for the moneys mentioned in their debentures except the municipality. With the aid thus obtained, and other funds, the railway company commer-ed the road and spent all its avaihiblo funds, and became wholly unable to complete the roud. This was prior to any interference by the Legislature. All subsequent legislation would seem as so many attempts to resuscitate this broken down enterprise, and if possible save from total loss the amounts already sunk. It is to be noted that all the municipality money was expended and their debtors, the original company, insolvent before any cause whatever of compl.nnt on the score of Government dealings with the company had arisen. h must be conceded that the paramount authority of Parliament could continue the liability of the munici- pality, if it thought proper so to do, although it might have materially affected by its enactments the security relied on by the township for its indemnity. In a well known case of the Toronto and Lake Huron ^^ VOL. II. 565 1805. Norwich T. OitDeraJ. Judgmtai 566 ERROR AND APPEAL REPORTS. 1805. Norwich ▼. Attornej- Graeikl. Jodtant Railway Company v.Crookahank (a), the late President of this court, in speaking of railway companies, said " When the Legislature does pass an act for controlling or regu- lating.their affairs, it becomes, generally speaking,a matter beyond the authority of any court of justice to deny to the provisions, whatever [they] may be, their plain effect, upon any idea, however well founded, that they do not seem reconcilable with either public or private claims. * * * The changes which the act authorizes are inrleed so exten- sive, that it would scarcely be a greater alteration of the original design if the railroad stock had been allowed upon the prayer of the petitioners to be changed into canal stock." The first grave reason urged for discharging the municipality, is the effect of the statute of 1856 (6), vrhich permits existing stockholders to retire. But the preamble of this act expressly states that this munici- pality is interested in the railway company, and contem- plated converting its bonds into stock, and declares that this may bo done. It seems clear to me that this act leaves the debt due by the township to the Government or the loan fund untouched. Then came the amalgamation agreement between the old company and the Amherstburg company, postponing the construction of the part of the road in which Norwich was chiefly, if not solely, interested, falsely, as respondents assert, stating that the municipalities had ngrccd to this course, and contracting that the new company should assume and pay to the Provincial Government the loans made by the municipalities to the railway, and the act passed in the same year expressly confirms the deed of amalgamation (he paramount authority of the law making power interposes and docs similar acts, this court cannot inquire whether Buch have or have not a prejudicial effect on the debtors, or whether the law of the land docs or docs not sanction such a dealing, so long as that supreme power chooses to treat and hold the debtor as still liable. The only question open to the court would be, as it seems to me, whether the Legislature have by its express declaration or by necessary intendment, according to the rules for construing statutes, put an end to this liability. I think that up to and in the last sta- tute, the liability is expressly treated as existing, and thus the whole question is narrowed down to one point, viz., by directing the new company to assume and pay the municipality debt to the loan fund, is the municipality released from its obligation therefor ? I think it is not so released, and that the decree of the court below must be reversed. Ttr Curiam. — Appeal allowed, and the bill in the court below dismissed with costs. [Spkaqqe, V. C, dissenting.] RRROR AND APPEAL REPORTS. 569 1865. Hall v. Hill. v»y..^ Sale for taxti—Treaturer'i warrant. Htld, nffirraing the judgment of tho court below, that the provision of tiie etntute 10 Vic , ch. 182, sees. 65 and 50, Cod. Stnt. of Upper Cunodo, chop. 55, requiring the county treasurer in the warrnot issued by him for the snle of InnJs in nrrcftr for tnxcs, to distinguish those that have been patented, from those under lease or license of occupation, is compulsory ; and that sales effected under a warrant omitting such particulars are void. Tho action in the court below was, as stated in the special case, one of ejectment for the west half of lot No, 10, in tho thirteenth concession of Emily. The plaintiff claimed under a sheriflF's deed for taxes, dated tho 19th of December, 1855, made by Wihon S. Conger, then sheriff, to the plaintiff. The trial took place at Peterborough, in ApWl, 1863, before the Hon. Mr. Justice Ilagarti/. ^*"*""*- Letters patent for the land in question id been issued, dated the 8th of February, 1838, grant ng the same in fee. It was proved at the trial that the land in question was in an ears for taxes for six years before the issue of the warrant to sell, which bore date the 7th of August, 1854, and was issued by the treasurer of the county in which the land in question was situate to the sheriff of the same county, commanding him to levy upon the land for tho arrears due thereon, with y his costa. m The warrant and advertisement thereon did not distinguish between lands gir-ted in fee and those which were under a lease or license of occupation, and the fee whereof remained in the Crown. The land in question was advertised by the sheriff and sold by him at public sale, the plaintiff becoming the purchaser thereof. The notice of sale was dated the 9th of it] ''1 ♦To ERROR AND APPEAL REPORTS. 1805. Auguef, 1854, and first appeared in the Gittada Gazette on the 19th of August, 1854; it was also in the O^iruida Gazette of the 11th of November, 1854, which was apparently the last advertisement. Tiiis mlvpiiisement was not inserted in the local paper; the sale was advertised for the 2ath of November, 1854, but this lot was sold at an adjourned sale on the 4th of December; the sheriff signed the usual certificate of sale to plainfifT, and the land not having been redeemed he executed the conveyance of the lot to the plaintiff. For the defence, it was objected that there was no evidence that the taxes were in arrear, and that neither the warrant nor advertisement distinguished between lands patented in fee or under lease, or license of occupation. The objections were overruled, but leave was reserved to move on the first point. Btotenrat. Plaintifi* had a verdict. Defendant afterwards obtained a rule nhi to enter a nonsuit on the leave reserved, or for a new trial on the law and evidence, and for misdirection in regard to the suflSciency of the advertisement of sale. The court made the rule absolute for a new trial, with costs to abide the event. From this judgment the plaintiff appealed for the following amongst other reasons. That the judgment of the court was erroneous, in holding that the statute of the Parliam nt of Canada, 16 Victoria, chapter 182, section 56, is, as regards the requiremonts of the 56th section, mandatory and imperative. That the appellant in this cause, having purchased the land in question in this suit at a sale thereof for ERROR AND APPEAL REPORTS. 571 ,1: IH Ball mil. taxes, such taxes having been more than five years in 1866. nrreiir, which was duly proved at the trial of the cause, and having obtained a deed thereof from the sheriff, WHS enti'lcd to recover possession of the land in such action, notwithstanding the warrant of the treasurer for the sale of said land did not distinguish lands which hail been granted in fee from those which were under lease or license of occupation. That the land before the sale thereof had been duly advertised, as required by law. That whether or not, tho appellant, as purchaser, was not affected by any irregularity in the mode of advertisement. Tho respondent submitted that the judgment of the Court of Queen's Bench was correct, and should be sustained. C(«tofflMt The case in the court below is reported in 22 U. 0. Q. B. 578, where tho facts are fully set forth. Mr. 11. A Harrison and Mr. J. Boyd for the appellant. Mr. #S'. J. Vankoughne* for respondent. For the appellant it was contended that at the most the warrant of the treasurer was only an irregular proceeding ; it could not be deemed a void one. Tiiere was no evidence shewing that any of the lands directed to be sold were unpatented, the presumption therefore would be that all those directed to bo sold were lands for which the patents had issued. That to effect a valid s:ile of lands it was essential to show only that the lands were taxable ; that the taxes rated were in arrear, and that the sheriff had a warrant to sell, and which, if pven held irregular, would not have the effect of vitiating •B \:i 572 KllHOH AND APPEAL REPORTS. 1803. BdlcB mado under h.— Morgan v. Parn/ (a), Oou$c v. Hannon (A), Allan v. Fi»her (e), Doe .' 'mtley v. MuKenzie {Jj, I)oc (IreemJnchU v. Qarrow (e), Doe liurnham v. Simmondt (/), 77a' Attorney-General v. »SV//e»» (//), y\'rr^ V. Powe// (A), Doe Stafford v. ^rowH («j, weie, with other cases, referred to. For the respondotit it was submitted that tho effoct of the statute wna to make tho municipalities, not tho individual proprietors, the sufferers by any informality in the proceedings to enforce payment of the taxes; here the loss must in tlic first instance fall on the appellant, his recourse being against the municipality. Jarvia v. Cayley (j), Harlourn v. Bouahey (it), wore referred to and commented on. Jad(m*nt VANKOUonxET, C— Tho judgment of the court below should, I think, be affirmed. Tho treasurer's warrant is the foundation of the subsequent proceedings, irregularities in which, where they have occurred in acts merely ministerial or executive, the courts have gone a long way to excuse ; but we cannot throw aside every provision of the statute, and permit men's properiios to be sold after any fashion which the officers charged with the duties of enforcing payment of taxes may choose to devise. I look upon the act of the treasurer, in determining what lands are in arrear for taxes and liable to sale, as a ^Mfltsi judicial act, and one which must be performed in accordance with the pro- visions of the statute. His warrant declares what lands are liable to sale, and this it must do in tho way which the statute prescribes. (a) 17 C. B. 834. (c) 13 U. C. C. P. 63. («) 6 U. C. Q. B. 237. {g) lOJiir, N, .S. 203. (i) 3 U. C Q. B. 0. 8. 90. (*) 7 U. C. C. P. 464. (6) 14 U. C. C. P. 26. ((t) 9 U. C. Q. B. 569. (/) 9 U C. Q. B. 436. {h) 8 U. C. Q. P. 251, U) IIU. C.Q. B. 282. ERIIOR AND APPEAL nEPORW. 678 Richards, C. J.— Tho case turns upon the qnestion 1803. whether it is essential to the validity of a sale of lands for taxes, that tho county trcas.M-or in tho warrant to be issued hy him under tho Provincial Statute 10 Victoria, ch. 182, sections 65 and 6(1, in effect the same as Con- solidated Statutes of Upper Canada, chapter 65, sections 1-4 and l:i5, should distinguish the lands that have been patented from these which are under lease or license of occupation, and of which the fee still remains in tho Crown. If this provision be compulsory, then the jud '• ment of the court below is correct; if directory only, then It IS wrong, and ought to bo reversed. On the best consideration I have been able to give this subject, I think the proceeding required is compulsory. No doubt son;o of the cases which are decided on the point as to what provisions in statutes arc mandatory and what are directory, would seem to lay down the rule in terms broad enough to sustai.i the plaintiff's case. But J»d,-«t. It must not be overlooked that the courts have presented to their minds the peculiar circumstances of rnch case and have applied and acted on the well known rules of interpretation of statutes, which would aid in arriving at just conclusions. Thus, when tho essential part of the statute was that a certain thing should be done, and in the enactment it was stated it should bo done on a certain day, it has been held that it might be done after that day, when it would cause no injury to any one by its being duno after the day, and when tho statute did not in terms prohibit its being done after that day. The case of The King v. The Inhabitants oj- Birmingham (a), so often referred to as bein^ one of the strongest cases where tho words of an a"ct of parliament apparently shewed that it was intended to be compulsory, and it was held to be directory, arose under the Imperial Statute 4 George IV., e-up. 75, sec. 16, by which it was provided that the father of any ti 74 (a) 8 B. & C. 29. liill VOL. II. 674 ERROR AND APPEAL REPORTS. 1865. party under twenty-one years of age, should have authority to give consent to the marriage of such party, and " 8uch consent is hereby required for the marriage of such party." In giving judgment Lord Tenterden said, the language of this section is merely to require consent, it does not proceed to make the marriage void without it. He also referred to a provision in the 16th section, that if any such marriage shall be procured by a party to the marriage when either of the parties are under age, not that the marriage shall be void, but that all the property accruing from it shall be forfeited, and adds, " this is the penalty for disobeying the direction of the Legislature given in the sixteenth section." But in relation to legal enactments on the subject of making marriages void the clearest words are required for that purpose. InCatteralv.Sweetman (a). Dr. Lushington said, " There never appears to have been a decision where words in a statute relating to marriage, though xadsmtBt prohibitory and negative, have been held to infer a nullity, unless such nullity was declared in the act ; and that viewing the successive marriage acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the Legislature to create a nullity, and that this is the Legislative interpretation of the acts relating to marriage." In this view, the case of the King v. The Inhabitants of Birmingham, will not be viewed as so decided an authority in determiuitlg what are directory provisions in statutes as it might otherwise be considered to be. The courts in this country have always held that the imposition of taxes on wild lands^ and the selling those lands for the arrears of such taxes, with the additions and accumulations to the amount of taxes which these acts require, in effect works a forfeiture of the property of the owner of the lands. In relation to statutes of this class Turner, L. J., in Hughes v. (a) 9 Jurist, at p. 954. ERROR AND APPEAL REPORTS. 675 Hill. Chester and Ilohjhead Railway (a), says, " This is an 1865. act which interferes with private rights and private "— ^^ interests, and ought therefore, according to all the ^"^ decisions on the subject, to receive a strict construction so far as those rights and interests are concerned. This 13 so clearly the doctrine of the court, that it is unnecessary to refer to cases upon the point ; they might be eited almost without end." In Morgan, appellant, and Parry, respondent (h), most of the ar • .rities, as to what are mandatory and what are meie.y directory proceedings in acts of parliament, are referred to and discussed. The con- sideration of the thirteenth part of the 101st section of 6 & 7 Victoria, ch. 18, was before the court : it provided that the overseers of every parish, &c., " Bhall, on or before the first day of July in each year, make out a voters list, and the said overseers shall sign such lists." And by section 35 they are required to deliver the •'"''«"«*• lists by them made to the revising barrister, and the question was, whether a list duly made by the overseers, and delivered to the revising barrister, but not signed, was to be treated as a valid list or as a nullity. If the 13th section was imperative, the list might be held altogether void if not signed, but if it was only directory, then, although the overseers might have neglected their duty and be liable to punishment, the list might be revised by the barrister. The Chief Justice, after considering what the object was in furnishing the lists, and the reason why they should bo signed, concluded that the Legislature did not intend the whole proceeding should be void from the omission of signature, and the court came to the conclusion that this section of the statute was to be considered directory only. fir. (o) 7 Law Times, N. S. 203. (6) 17 C. B. 834 676 ERROR AKD APPBAL REPORTS. V. Bill. 1865. Hunt V. Hihbs (a), waa an action for a penalty aginst an overseer for not making out the Burgess roll fceforo the first of September, which, under the statutes in relation to the subject, was required to be made out on or before that day. The defendant pleaded that the roll was made out and delivered by the 5th September. On demurrer, it was argued, on behalf of the defendant, that the statute was only directory, and that he was not liable for the penalty. The court held he was liable. Channell B. said, *' it is urged that the enactment is directory only, but the very object of it is to fix the precise time." Chapman v. Milvain (5), was an action by the plaintiffs on a covenant, made with them by name, contained in the deed of co-partnership of a joint stock .banking company, by the defendant, as a subscriber, to pay the different calls. The defendant pleaded that the banking company was a co-partnership for carrying on the business of bankers according to 7 Geo. IV., ch. 46, and there were public oflScers of the co-partnership according to the statute ; and that tlie Judgment, moncy sought to be recovered in the action was a debt duo to the co-partnership and relating to the concerns of the same. The plea was demurred to on the ground that under section nine of the act the action must bo brought in the name of the public oflScer. The section was to the effect, that all actions against any person who may be at any time indebted to such co-partnership, and all proceedings at law or in equity to be commenced or instituted, for or on behalf of such co-partnership, against any person or persons, whether members of the corporation or otherwise, for recovering any debts, or enforcing any claims or demands due such co-partner- ship, or for any other matter relating to the concerns of such co-partnership, shall, and lawfully may be commenced, or instituted and prosecuted in the name of any one of the public ofiicers nominated as aforesaid, for the time being of such co-partnership, as the nominal (a) 6H. &N.128. (6) 6 Ex. Gl. ERROR AND APPEAL REPORTS. plaintiff on behalf of such co partnership. The section also provides that all aclions against the corporation shall be brought against the public officer, and in indictments, &c., the public officer may be alleged to be the owner of any goods, «hattels, &c., of the corpora- tion, that may be stolen. In discussing the question, Baron Par;tg considered the inconvenience that would result in having the action brought in the name of any one but the public officer of the company, both as to costs in the event of the suit failing, and the set-off by the defendant, if the corpora- tion was indebted to him ; and he came to the conclusion that the inconvenience afforded an additional ground for construing the words, which were primd facie obligatory, in the usual sense, and he concluded his judgment as follows : " Upon the whole, we think the words shall and lawfully may, are obligatory, and ought so to be construed in this case." 677 1865. m Judgment. ^ In deciding what the intention of the Legislature was m reference to the matter before us, we must not only ook to the statute itself, but to the other statutes that have been passed on the subject, repealed and unrepealed. The words of the 5Sth section are in effect, that whenever any portion of the tax on any land has been due for five years, the treasurer shall issue his warrant, under his hand and seal, directed to the sheriff of the county, commanding him to levy upon the said lands for the amount of arrears due thereon, with costs; and the o6th section, as before mentioned, enacts, that the treasurer in the warrant shall distinguish such lands as have been patented from those which are under lease or icense of occupation. The sheriff has no means of knowing if a lot put up for sale has been patented or not, and can give no information to intending pur- chasers if it is not given in the warrant. The conse- ^)i> 678 1865. ERROR AND APPEAL REPORTS. quenco may be that the whole of a patented lot may be sold to pay a small amount of taxes, because the purchaser maybe under the impression that it is merely under lease or license of occupation, and that the fee is in the Crown, and that he can only acquire by the purchase the same rights as the original locatee or purchaser had. Or, supposing the sheriff proceeds to sell a lot under the section, and sells it as a patented lot, what remedy has the purchaser if it should turn out to be but a leased lot, or one held under a license of occupation, and if he could get no redress, and I do not at present see how he could, would that not induce him to look on every lot sold as one that the fee was in the Crown, and so work iryustice to the owners by sacri- ficing the property because the treasurer had failed to do that which the law said he should do. The 22nd section, 6 Geo. IV., ch. 7, declared that no omision of any direction contained in the act Judgment. , . relative to notices or forms of proceeding previous to any sale made under that act, should extend to render such sale invalid, but the person guilty of any such omission or neglect should be liable to punishment therefor, and should answer to the party for any damages occasioned thereby In any legal proceeding that might be properly instituted for that purpose. This provision to cover omissions or irregularities, and to give a right of action to any one who suffered damages from the neglect or misconduct of the officer, was dropped in the act of 1850, and has not been intro- duced into any of the statutes on this subject passed since. An inference may be drawn from this omission that the Legislature did not intend to cure irregularities, partic-;^ly those of a character that might seriously affect the interest of the owner of the property. The sta- tute of 1853 made no further provision on this subjectthan is contained in the act of 1850, and I am not awaro that there is any legislation on that particular point subsequent to the act of 1853, until the passing of the Provincial Statute 22 Victoria, ch. 19. ERROR AND APPEAL REPORTS. 6T9 By the fourth section of that act it is provided, « that the 1865, treasurer and sheriff of every county shall not be required to inquire, before sale of land for taxes, whether there is any distress upon the land ; nor shall they be bound to inquire into or form any opinion of the value of the land ; and if any taxes in respect to any lands sold by the sheriff after the passing of the act shall have been in arrears for five years, as in the first section of that act mentioned, preceding the first day of January, in the year in which the sheriff bhall sell the said land, and the same shall not be redeemed in one year after the said sale, such sale, and the sheriff's deed to the purchaser of any such lands, (provided the said sale shall be openly and fairly conducted,) shall be final and binding upon the former owners of the said lands, and upon all persons claiming by, through, or under them." The intention of this section would seem to be as to j„d ment all future sales, when any of the taxes were in arrear " "'"' for five years, with a sale fairly and openly conducted, if the land is not redeemed within the year, and is conveyed to the purchaser, that the purchaser shall then hold the land, though there may be irregularities ; the law under this amendment, making the arrears of taxes for five years, and a fair sale by the sheriff, the essential requisites to a good sale. Looking then at the course of legislation on the subject, the injustice that might arise from the omission of the requirements of the statute as to distinguishing the land patented from that held under lease, &c., and the absence of any provision indemnifying those who may suffer from that omission, I think the conclusion arrived at in the court below, was the correct one under the statute of 16 Victoria, ch. 182, under which the lands claimed by the plaintiff were sold. The appeal must therefore be dismissed with costs. Per Cwriam— Appeal dismissed with costs. ERROR AND APPEAL REPORTS. Reid V. Whitehead. Begiitration. ^ .i, reyersing the judgment of the court below, that when the me- morial follows the description, which in the deed itself is sufficient, registration thereof is eflfectual. The decree appealed against is reported in the 10th volume of GranVa Chancery Reports, page 446, where the facts out of which the suit arose suflSciently appear. From that decree the defendants, The Canada Life Assurance Company, appealed ; assigning as grounds : Tha*- ihe evidence taken in the cause sufficiently estab- Matmrat ^^'^^^^ actual noticc to the respondent of the mortgage made by Pomeroy, of which the appellants are the assignees ; that the assignment of the appellant's mort- gage, and the memorial thereof, and affidavit of execution, sufficiently comply with the requirements of the Registry Laws of Upper Canada, and the registra- tion thereof, is, in every respect, sufficient, and constitutes notice of the instrument, and its contents, to all persons claiming any interest in the lands embraced in the mortgage subsequent to its registry, the same having been so registered prior to the making or registration of the plaintiff's mortgage; that the due registration of the said assignment^ the mortgagor being a party thereto, is a sufficient registration of the appellant's mortgage, or is itself a sufficiently registered mortgage of the lands therein comprised, within the spirit and meaning of the Registry Laws of Upper Canada, and that the memorial of the assignment complies with the requirements of the Registry Acts, as respects the descriptions of the lands, and conforms thereto in every particular, inasmuch as it mentions the lands contained in the instrument of ERROn AND APPEAL REPORTS. 53] stualV i!'n "^'"°^'^''.""^' ^'>° ^'ty ^horo the same arc ISOr,. B.tuato in the manner ,n which the same are described ^-— ' jn sa, ,rumer.t, or to the same efTeef, .hich is a, ^^'- tha the Registry Acts require ; that the description ''"'■'""' c n a. d ,„ ,,^ ^^., .^^^^^^^^^ issufUcicntly eerta n to pass the property, and the said instrument, bein. Id as a conveyance, the requirements of the act .n°e suffi c.enty complied with by importing into the ml i!l' esenpt.on, in the same words as it is con" ne tl deed; and there is no obligation imposed by the a to define upon the registry boohs tl.e partfcu Ir portmn of a lot intended to be conveyed-sueh d cr ' ^on, be,ng by reference to a plan or survey, or otl ^ise, surT,c:ently certain to pass the property-and he registry ,n th. case was a sufficient 'egi try'witln h "I-: JLT " ''""' "PP™'"" "S»''°" *« plaintiff J.gned as reasons : that it did not appear iLt th" ""-•'• Pla.nt,ff had aetual, or any, „„tiee of .he n,ortgago to Sray when he took his own ; that the mortgage to L, was not registered, if at all, nntil after the'rfgistrS of the mortgage of plaintiff, „„d became ^nd was thereof to the appellants was inoperative and nid as J.ga.nste plaintiff; thatthe registration of the assig ! ment, .f ftere were a valid registration thereof, eould no'. -' ^uf/hnet, C, duhitante), consid- ering that the delay which had occurred in naming an engi- neer, according to the terms of the agreement, ought not to preclude the parties from obtaining an inspection of the works, made a decree in favour of the plaintiffs", but under the cir- cumstances directed a reference to the master for the purpose Of inquiring and reporting as to the due performance of the "^^ VOL. II. 586 ASSIGNMENT. works. On "npeal, this decree was rovcrspJ, and the bill in the CMiirl below ordered to be dismissed with cosis, (Eaten, V. C, dissenting.) ^ The Desjardins Canal Tompany v. The Great Western Railway Co'npany, 3:K). (to devise.) See " Specific J^erforrnance," 8. APPEALABLE ORDER. See ''Practice," I. APPEAL. (by SEVERAt DEFENDANTS WHERK ONE MOT ENTITLED. See "Practice," 5. (style of CAUSE IN.) See page 480, note. ARREST. (order for by judge.) See "Practice." 4. /3S1GNMENT. (for benefit of CREDITOnS.) Vll" y^,%'^»''':b'«7ad. before the passing of the statute 22 Vic. ch. 98. assigned and surrendered his ostate and effects to trustees for the satisfaction of his d.b.s u iihout reserve, held, aftrmingt^heji;,ljment of the Court of Cur., inn Pleas 1 1 • 1 J Zt^'JH '^V^"' T^ ""^ ihelHu,„ipulu.e for the pay- ment ol some of his creditors in full, and a ratable distribution as to the rest ; and also, for a release to himself from all further Jabil.y [A^«S/,rawe.V.CC.. dissenting] Held also, that «uch release may still be insisted upon without any reference to the amount of the dividend to be paid by his Bank of Toronto v. Eccles, 53. .«?:/ *?-'*'°'" }^ ^'"^ '^'" S:ave all his estate, r?al and per- Bonal, ,0 his pxebutors in trust, empowering them at the same time to continue the business which he had carried on in iiis ifetime, which they accordingly did for several years, and in tli8 rour.se of 50 carrying on the business had acquired a laree amount of property, and subsequently assigned the same, L ATTORNBir AND OLIKNT. 587 w.II that portion wmunUyg on hand left by the testator (:ihout one-niMtl,)astl.HtMC.|uirf.l sin... his d.'afh. to certain trust...... f.,r llu. h,.iu.|it oC «|| crr.l tor. o( the estate, and each ext.cutnrs..v..mlly H.ssi^r„ed for the bcn-fii of in,l,viduHl credi- tors; the persons named as trustees took and continued in the possesMori of ihe chattels assigned under .he several convey- ances. 1 he trusts declared were for the benefit n„r! pa»*u of creditors comint,' in, and who were not hound to release their claims. A judgment havinjr been reco/ered against the exe- cutors individually, upon a note made by then, as execuio.s. t 10 judgment creditors claimed a right to s. ze the poods in the hands of the trustees, notwi.hs.anding rhe assignments hereof. In an interpleader suit brought to y ,he ciuest.on, the court below determined that the an appeal to this court th ■ judgment ol the court below was affirmed, and the appeal disn^issed with costs. Kerr v. Haldun, 382. ATTORNEY AND CLIENT. An attorney in the prosecution of suits to recover a estate for the heirat-law, who is supposed to be A., buys in a para- mount title for the heir-at-law, and subsequentlv'conv-vs the estate to A., the supposed heir, who sellsand conveys tr divers purchasers. On a bill filed by B., the real heir, agai. u the attorney and A , and the purchasers from them, the cm t-in this respect affiriiiing the decree below, as reported in 6 ^ rant, p. .W($— adjudged them to be trustees for B., although t an- peared that the ancestor had long before his death conveyed away all his interest in the lands for value-F^/r J! i^ lilin. son, Bart. C. J., dissenting,]-but some of such purchasers havng had a prior or better equity than the plaintiff, the curt - arying the decree of the court below in this respect— directed that they should not be disturbed although thoy eo in the legal estate wuh constructive notice of the opposing clan, ; YLstcn, V. C., dissentinsr,] and also varied the decree as to the other purchasers, by directing that under the circumstances the account of rents and profits against them should bo limited to commence from the filing of the bill, and that they should be allowed the fair value of all suh/,fges and //Vm/ '^^^^^ Company, and financial directors resjH-clively o X Sre^w"^"'"^ Railway Company, on the comnlotinn „ ^' Western Detroit and Mil?vanke rS ! ^hfcl ''^"'^™ 'he controi^of the directors of tii? o;;^^ Vrrn" tfivv^;; Milwaukee Company U.e exnenrfh F -"^ '''^ ^''"•o'' and Of the Great WestVrrCoXa L ^r a? ""'^ meeting of the proprietors Ttl e Grett WeT'^''^ §^'""^' held in London on the 7th of Ocnhnr /Y ^^^'m Company 2nd of November, I85S, I washes iv^cj tot/" ^""f^*^ °" '^'^ sum of £100,000 sterling to the Detroit and '^T "f ^""''^'• pany, such advance also » (o he -LaZlZ ^'^''T^'^^ C"™" ofthe Great Western mrectorty^On^^^^^^^^ the statute 22 Victoria, chapter 1 was n T"''' '^^®' section II, the Great Western f'!, passed, and by ccnnec/wns anrf in promofhr, its tram,- ,,,wf •/ ^"^"^'^^"'^ proper States of America /" such expend hure 7'^""^' '". ''*'' ^"^'^^ be authorized by' a two-tl^lrTt ^'o ^rrrSV'""''* general meeting ; and by that section t „f. r f'"'''^''^ »' « ^'that theloan of ,^750,000 aWy'Z j Inl^'^^'^' '''^'''^> to the Detroit and Mihcankec Raih'L.f ^ • T'^ Gompany to be la.fuV^ It app^a;" t^^ M 4': S'-' ^-rel^ ^eeL^l stipulated with the'b'ank to disclm;.rall X'^^^^^ from time to time on the account in%ue io„ bu„ r'^' \^.'' of exchange on the Great Western R^i wa v J^^.!.^ ""'^'r^ ^'"» or rom the traffic receipts of t e D tr^oa and'Yn^°"1°"' Railway under their control, and credits „nn ^^^j'«'^"'f«e particulars for £88,020 iGs-.TJ. of Lwm.evP^^ '" the about 8515.000) drawn under this sti Lon A?n^'^""l '" nonsuit was moved for upon the frmn X ^' ''"^ ""'»'. a .he.e d=.l,„g. wore Xlt T.i.X'Zr^^'^Z''^^^. 690 CORI*ORATIONS. pany ; that Bryd(jes and Reynolds had no authority to bind the company ; and that there was no corporatu seat to make defendants liable. Leave was reserved to move the court in Banc thereon, and after evidence for the defence, the learned judge {Burns, J ) left the following questions to the jury : Fh'stlj/ — To which company was the credit given by the bank, to the Great Western or to the Detroit and Milwaukee? or was the credit given upon the responsibility of Messrs, Bridges and Reynolds, irrespective of either company ? Secondly — Had Messrs. Brydges and Reynolds authority from the Great Western Railway Company to make financial arrangements for the Detroit and Milwaukee Company on account of the Great Western Railway Company to tbe extent of £230,000 sterling, agreed to be loaned by the Grt-^. Wes- tern Company to the Detroit and Milwaukee Company? And was the account of the Commercial Bank opened aad conduc- ted by them in pursuance of such authority? Thirdly — Had the Commercial Bank notice ^^at any time, while the account was going on, that Messrs. Brydges and Reynolds had exceeded their authority, or that more than the two loans, amounting to j£250,000, had been expended? Fourthly — Suppose the original credit was given by the bank to the Great Western Railway Company on the opening of the account, was there any understood limitation between the parties as to the question of liablity at the time the letter of the 16ih of December, 1858, was given, either to the extent of the second loan of £100,000 sterling or otherwise ? or was the account continued on after that period in the same manner as before by the parties ? Fifthly and lastly — Did the Great Western Company, by its dealings with the Detroit and Milwaukee Company, reap the benefit of the expenditure made by the Commercial Bank on the Detroit and Milwaukee account? The jury returned the following answers to the questions submitted ; First — To the Great Western. S'^cond — They had the authority ; and the account was opened and conducted by them in pursuance of that authority ? Third — The bank had no notice that Messrs. Brydges and Reynolds exceeded their authority. Fourth — There was no limitation, and the account was continued in the same manner as before the letter of the 16th December, 1858, was given. Fifth— They did. A verdict was accordingly entered for the Bank, the amount ORPORATIONS. 591 to be ascertained by a referpp tn h^ «„- j parties, who by an [ndVrsernt o„ thfr ^^^^ ITW''' power to report unon thfl rliffi>r„„. record was to have to submit a^taS„t L te ;V'^^^^^^^^^^^ account, and «m was obtained by the Great W«. n '°"'''- ^ "-"'^ Court of aueeri's BeLh to i'?i. ^ ^°"'P*"y '" »''« aside the verdict formisdJectiin " Tr'""'"' «'"* ^'«° '« set for the reception of LnropeTel^^^^^^ "on-direction ; and the rule. The Courro7 Cen's BpLv. h'^'u *''^.''' ^^''^ ^» and on leave eiven an Int^r , ^^^nch discharged that rule, Held, on apped!?ha?the^'nll?, ^'"'^hi from that decision that the BLk was ent fled toT/o ^' ^u^''^y '•^^"s^d ; and of the two loans" f^i'S^TnTy^oi'^^^^^^^ tively, as had not been drawn for /r««A' / '"i'"" '"^"P^^- as to latter loan;) lhnltheCn,,lZr a ^"^^^^^^^ so declared the Jiibm y of^he qI? W ^T'' ^'^"""^ ''«^« Bank, and that not halCdone^his tJ^r? 7" nTP'^">' '° '»>« unless the parties settled unon .1.' f ^ '''°"''^ ^^ ^ »^^^ '^'al amount by Lefrrenc-erS„^p'^°°f',"8: or ascertained the court bein'g rernSu.^f'^f^^^^^^^^ jhe a reference of the amnimt «„ „ ■ "^""*' "ad agreed to .ha. if a ne>v'!'r1.frs"'d:Lrb';'r"B.„t'r"h'^ ^7'f without costs; if bv the comn«n« .i -J ' ®'^°"''^ ^e both parties consented, the case ^l,iu ^'^ "''''^ ' ^^' "f arbitrator to ascertain the amonnf^."''' ^' '""'""'^'1 •o 'he opinion of the cou n If Z ^ '" f^o'-dance with thi? following, then a new trial was o^^'" ^^ '^' *«' ^^ ^pri by the ajpellanrs."th: S?LT We^l^^r^C^'-;-' '« '' ^^^' an?"4^.S:' :: tirm°a"nilirat 7 '''' ^Z^^- ^^^^'^- written to the bank ask^nr£^ ^•^"^""^' directors, had D & M. account "whfcto'n "e Is^trir'isy " T ^'^^'^ before and considered b; the d.reclsSf L^®', '''"' ^'"""S'" of the Board held on (b»7rh'? J f ''""^ «' * '"^eting Cashier wrote acceptf„j'^f^^''^*^' ""^ T «!.^' '"'"^ ^^^^ '^ei? Heym/ds. Held riffivLll^T^ °^ ^^'''^- ^''^^^^ and that theminueL of^h" Efar/ l^'"'"' "^^'^^ '^^"^ 'b'^'^^M evidence as part of he mi I? P'""??'^ admissible in agent of the bank at Hamfhor^-l '"'' «'«V''*^^^" '''»' '^e statement shevvin/how ^bl ^^ ««"' to the head office a Great Western clpty wa^ kZT\l t , °''^.^ "'''' '''« udgment of the coun below^ h?, c T ' ^''''° «*''ming the sible as evidence .nihe cause. ''"'"'"""' "'"^^ «^'"'«- '"B^n^o" Sr^^^^^^ ^°™P-^^' - The Commercial [Affirmed on appeal to the Privy Council.] ;i 592 DESCRIPTION OP LAND. COSTS. Where the Court of Queen's Bench and Common Pleas ha^ given opposing judgments on the same question, this court, on affirming one of those judgments, dismissed the appeal without costs. Sexton V. Paxton, 219. See also " Practice," 1. CROWN. (deputy clerk of.) Certificate signed by him for registry of judgment. See " Registry of judgment." — *— DECREE. (form of, setting aside deed for fraud.) See " Fraudulent Conveyance," 1. DEFENCE AT LAW. 1. A defendant at law pleading a plea of payment, and either failing or neglecting to establish the plea, cannot after- wards set up the same facts as a defence to a bill in equity to enforce payment of the judgment at law. Carpenter v. The Commercial Bank, 131. 2. An action at law having been brought upon a promissory note, and the defendant having pleaded that it had been given as collateral security for another debt, which had been paid, but adduced no evidence to establish this fact, was held pre- cluded, in a suit afterwards instituted in the Court of Chancery to enforce the charge of the judgment against lands, from shewing any payment prior to the time of plea pleaded. [£«ght ,lollor» Jur merest of A'3O0 at Jour per cent, due the \n h "-^ '^y';'^*^ according to agreement, which I cannot find, so J have put the receipt on thh paper." Held, affirminir the judgment of the court below, that Sis was not admSe as ev dence against the estate of S. G., the same not being an en- try against the interest of the party making it. Ganton v. Size, 368. See also " Corporations." EXAMINATION. (of defendant.) See "Practice," 4. FIXTURES. See "Mortgage," &c., 3. FRAUDULENT CONVEYANCE. (setting aside.) 1. Insetting aside a deed forfraud. at the instance ofajude- TnMH h"°'^^^,*'^'"''.'^''1" court, the proper form^-s To avoid the deed only as against the parties injured by the con- veyance, and direct a sale of the property ; the court will not simply set aside the deed and allow the judgment creditor to proceed and enforce his claim at law: and where the wife of the grantor joins in such a deed to bar her dower, it should be avoided only so far as it passes the estate atid interest of the grantor : the creditor not being entitled to the benefit of such release of dower, m such a case what is properly the effect SZf. """i^ '^' release of dower, and to whose benefit it win enure : — (Jucere. The Bank of Up^6r Canada v. Thomas 502. rrS;.^''?^ * debtor conveyed away his estate, in fraud of creditors, to a person having a judgtnent against the debtor, JOINTURE. 595 which conveyance was declared fraudule-nt and void acainst creditors, upon a bill filod at the instance of certain of the creditors : hdd, m this respect varying the decree of the court below, that the creditor, to whom the conveyance had been made, was not, under the circumstances, precluded fium en- lorcing his judgment against the lands of the debtor, the con- veyance of which had been so avoided.— [ VanKouu/a.et, C, dissenting.] lb. l j t v^m HEIR AT LAW. See " Lease with right of purchase." INTERPLEADER ISSUE. See "Assignment for benefit of Creditors," 2. ISSUES OF FACT AND LAW. See ''Practice," 3. JOINT ACTION. .u ■^''f' (affif"'""? '^e judgment of the court below.) that where the bolder of a bill of exchange or promissory note sues, under the statute, the drawers, acceptors and indorsers, in one ac- tion, he may discharge the drawc'rs or indorsers For accommo- dation acceptors] after an arrest under a capias ml satlsfaden- rf«m, vyithout loging his remedies against the other defendants liable m priority to those discharged. [McLean and Draper, C. JJ., dissenting.] Holcomb V. Henderson, 230. JOINT-TENANT. (admissions by.) Whether the admission of one joint-tenant or tenant-in-com mon, as to the extent of the interest held by him and his co- tenants, IS admissible as evidence against his Co-tenants : Bernard v. Walker, 121. JOINTURE. See " Marriage Settlement." 596 LESSOR AND LESSEB. JACaUES V. WORTHINGTON. (7 GRANT, 192, COMMENTED ON, DISTINGUISHED FROM THE PRESENT CASE AND APPROVED OF.) McQuesten v. Thompson, 167. LACHES. See " Specific Per'brmance," 1. — ■• — LAW. (defence at.) See *« Defence at Law." LEASE. (with right of purchase.) Held, affirming the decree of the Court of Chancery, that an assignment by the personal representative of a lessee for years does not carry with it a right of purchasing the fee contained* m the lease ; but this court varied the decree, by directing the vendee of the personal representative to execute a mortgage upon the property, the conveyance of which he had obtained from the lessors as assignee of the lease. Henrihan v. Gallagher, 338. Sampson v. Mc Arthur, (8 Grant, 72,) remarked upon and overruled, so far as the same decided that the right to pur- chase contained in a lease was personalty. lb. LESSOR AND LESSEE. The owner of lands created a mortgage thereon in fee, and afterwards granted a lease of the same premises for twenty-one years, the lease being silent as to the existence of any incum- brance ; and subsequently conveyed the premises to C. upon certain trusts, subject to the mortgage, which mortgat^e was afterwards assigned to P., who proceeded to a foreclosure and sale of the premises on default being made in payment and the same were under a decree of the" Court of Chancery'sold, subject to the lease, and the fee therein was conveyed to the purchaser by a deed, duly executed by the owner of the equity of redemption, the assignee of the mortgage, and C. the grantee named in ihe trust deed ; the purchaser, as part of the same transaction, giving to C. (the trustee) a mortgage securing part 0. the purchase money, which mortgage was subsequently dis- charged by certificate of payment duly registered. It appear- ed that the lessee for years had assigned his interest, and that LOWER CANADA. 697 th. pure";: "r Se ", "«i ' "ef,':'™':/ ;,"■' ■""•^r '""^ being such that T wa, pT,1 '^ ^""^^ °^ ^'^^ conveyances Todd V. Cameron, 434. LE TARGE v. DE TUYLL. (1 GRANT, 377, COMMENTED- ON AND APPROVED OF.) Bernard v. Walker, 121. LEX LOCI REI SITiE. See "Marriage Settlement." LIEN. See «« Registered Judgment," 3. " Unpaid Purchase Money," LOWER CANADA. (devising lands in.) See " Will." (statute of limitations of.) W.S sued ...-''a"^st,^t7re,::7,tra^ly'„^s °°""''- from the maturing of the note • tl « !.!• j ^ ., ^"^^ J'^*" Within which an action mt"st be 1^'?^ P''^^"'''^^ «« that of exchange in Lower cXd« rrn l^ "P°" * "°'« " bill of the court be?l, that fl ; ,Sif ™'"^ ^^« J^^^^ment recover; the lapse of time de^rrftatute' "°' '"'"^*^ '° extinguishment of the debt withn ., ! "Peraiing as an remedy only. ' "'"'"' ^""' »«' as a bar to the Shi riff V. Holcomb, 516. 698 MORTGAQK — MORTQAQOR — MORTQAOEE. MALICE. See "Slander." t MARRIAGE SETTLEMENT. By a marriage contract executed in Lower Canada, the in- tended wife, in consideration of certain provisions made there- in for her separate benefit, agreed to renounce Iier dower in the lands of her intended husband, either "customnri/, prefix, or atiprilatecl," no mention being made of iandr in Upper Canada. Ilehi, that this did not preclude her from claiming dower out of lands in Upper Canada, held by her iusband during the coverture ; and that notwithstanding tho contract which was entered into would form a first charge on all the property which the husband held at the time of the contract, or which might be afterwards acquired by him. L VanKaughnet, C, dissenting.] , Jamieson v. Fisher, 842. MILL. (LE3SEE OF.) See " Pleading," 1. > ■ MISDIRECTION. See " Corporations." » MORTGAGE— MORTGAGOR— MORTGAGEE. ffeld, reversing the decree of the court below, that the provi* ♦ sion in this statute 12 Vic, ch. 73, sec. 1, (Consol. Slats, of U. C, ch. 22, sec. 357,) which authorizes the sale under execu- tion of an equity of redemption, applies only where the execu- tion is against the mortgagor himself, and on an execution issued against his lands. — lEsten, V. C. dissenting.] The Bank of Upper Canada y. Brough, 95. 2. T. and B. being sureties for W. for the due payment of certain moneys to the City of Toronto, obtained from him a mortgage with a power of sale by way of indemnity ; after- wards, having been obliged to pay certain money to the city, and being also liable to pay other sums on his account, they obtained from him an absolute deed for the nominal considera- tion of JEIOIK); in fact no money was paid, nor did any ac- counting between the parties take place. Subsequently the holder of a prior mortgage instituted proceedings to foreclose, and on an application to extend the time for payment, T. made MOKiaAOB— M0KT8AO0II— MORIaAOBB. 099 «h.w„ ,h., when ,h„ d...d v.„ic„e °^ "^^ business durincf hs ab- sence. 1. K., & Co., having d scovered that D '« «=,„.„ ng to 1., K. & Co. payment of their demand. At the time of no! kn^n7o^i;e""^'"''^"™?' ^' ''''' '^^«^' but t^ s fa r^at of thework mirr """' T^"'"^ ^'■'^^ '^' completion L T K & r^ 1 "f "^ j''" .^?"''" •''" »he court below, mnl r 7 ? 7^.'"^ "°*' ""''^ this mortgage, entitled to re^ Mcauesten v. Thompson, 167, .0 a !S irL'^±;\T'"'if '"' '""- ^""e indebted 'ng year, A. being still unable to pay, and his siireties desiring if I 600 MOHTOAOB— MORTQAQOR — MORTQAOBB. to be relieved from liabilily. it was arranged bolweon A. and B. that A. should convoy certain of iho lands, which had been so transferred to the sureties to H., which was accordingly done by on absolute deed of coveyance, ami the bond cancelled : B. at the time giving back a memorandum signed by himself as follows : " Received of Mr. A. McDnnvIl lands as follows," (enumerating them, part being cultivated, the rest waste lands) "for the sum of one liundred and twenty-six pounds fivo shillings;" (this amount being the original debt and interest) " should he Want the above property I should have no objection to giving it back, if Mr. A. McDoiwU would |)ay me the above sum in three instalments, viz.," (setting out the several instal- ments.) " with interest from this date." A. was then in pos- session and occupation of the cultivated lands, and also in Eossession of the wild lands, and so continued until 1H18, when I. instituted proceedings in ejectment to obtain possession of the cultivated lands, in which action he obtained possession in 1849. About the same time (184!)) other creditors of A. iiad obtained judgment and e.xeculion against him under which his interest in these lands was sold in 1850, and purchased by B. through an agent. In the books of B. (for the year 1849) entries were found charging A. with interes' on the amount from 1831 to 1849. B. never gave credit for the amount of the promissory note received by him, nor did he produce it or account for it in any way. In 1860 a bill was filed by A. 'claiming a right to redeem, and a decree for redemption was made. On an appeal from the court below. Held, {Draper and Richards, C.JJ. an J Morrison, J., dissenting) affirming the decree of the court below, first, that, under the circumstances stated, the deed to B., together with the memor- andum signed by him, operated as a mortgage security only. Second, that the circumstances appearing were such as did not warrant the court in its discretion in refusing redemption under the provisions of the eleventh clause of the Chancery Act. Third, following McOahe v. Thompson, 6 Grant, 175, that the security to B. having been created by a deed absolute in form, the right or interest of A. therein was not saleable by the Sheriff under common lav*- process. Fourth, that the Dormant Equities Act did apply, and Fifth, that under the circumstances the lapse of twenty years since the time appointed for payment did not bar A.'s right to redeem. McDonald v. McDonell, 393. 5. The owner of real estate oreHted a mnrtg.'>.ge (hereon, and afterwards sold and conveyed a portion of the property by a deed containing absolute covenants for quiet enjoyment, free- dom from incumbrances, &c., taking from the purchaser a bond NOTICE. 601 condilioned for the pHymnnt of a proportionate amount of the mortgage Mn IhM reversing ,),„ judgment of the court be- low, that the fact o( i he purchaser hohlmg such absolute con- veyance was not such a repr.sentaiion to the holdersof the mortgage us warranted then, in executing ,o the purchaser a release of h,s portion o( the estate fro„. ,he mor.gnge. and fvTl' J '7'S^"R '^ ^''«. mortgagor for payment fh^reof- L KaHAy«yi«t7, C, dissenting.] Bank of Montreal v. Hopkins, 408! See also " Lessor and Lessee." "Registry of Judgment," a. MUNICIPAL LOAN FUND ACT. (auvances under.) Where a township municipality advanced a sum of Z'^P, ? « '•"''*"*^' ,'^?'"P«".v. ""'I^-'- "'« provisions of the Con sol dated Municipal Loan Fund Act. and some of the „cX holders of the company were afterwards released from their .ability by an act of the legislature, passed nearly eTgl teen nunilis a her the works on the roml were .topped Ibr van of funds, and new companies were formed unde hat and subse queni acts of the legislature, which released the new orpora tions from the construction of the original line of road ZtU a new line had been constructed, and ii appeared that there was no immediate prospect of such a reMil . //,/,/ reve sVnV b^ judgment of the court below, that the municlpa ."CnoV Norwich v. The Attorney General, 541. ill McCABE V. THOMPSON. (6 GRANT, 175, FOLLOWED.) McDonald v. McDonell, 303. NEW TRIAL. See "Corporations," NOTICE. Courts of equity cannot, anymore than courts of law. on the foot ng of want 01 notice of the illecalitv. aive efTect to '„ common law and under acts of pari lament, are utterly void. 78 See also "Constructive Notice Gardiner v. Juson, 188. VOL. II. 602 PARTNERSHIP. NON DIRECTION. See " Corporations." NON OBSTANTE VEREDICTO. See "Pleading," 2. PAROL EVIDENCE. The principle upon wliich parol evidence will be received to cut down a deed absolute on its face to a mere security con- sidered and acted on. Bernard v. Walker, 121. Le Targe v. De Tvyll, 1 Grant, 277, commented on and ap- proved of. Ih. — • — PARTNERSHIP. A. and C, a trading partnership, entered into a joint specu- lation with C. & D. for the purchase and sale of lands; after- wards E. was adiniited into the concern upon the understand- ing iha'. each should be enlilled to one-fourth of the profits, and liable in the same proportion to any losses incurred. For tho purpose of carrying on the business of the co-partnership, the parlies were in the habit of discouniiiig notes which were made by E., and indorsed by A. and B. and C. and D. in their individual namts. After the parinersbip had been in operation for nearly three years C. wrote to A. and B. and E. proposing to retire from the concern on receiving a certain amount in lands taken at a valuation, he ajrreeing for a certain period to continue to indorse renewals of the notes of the firm then outstanding, as accommodation indorser, which proposal was communicated to D., but nothing further was done with reganl to it. Shortly afterwards D. made a similar proposi- tion to A. and B. and E. on their ''assuming all my share of the liabilities incurred by or for the said company, excepting only my liability for 13 or 15 months as accommodation in- dorser after Mr. Knowlson [C J on the paper in the Bank of Upper Canada," which proposal was accepted by A. and B. and E. Subsequently both C. and D. by a joint memorandum formally relinquished their interests in the company, but it did not appear that D.'s stipulation a's to indorsing the notes was ever communicated to C. The notes so indorsed by C. and D. had been all consolidated into one note of £3,200, and upon a renewal of this Hote an action was subsequently brought against all the parties thereto, and a sale of U.'s lands was effected under tlie execution issued in that aciinn, which r?»l- ized only a portion of the amount. Thereupon D. filed a bill against C. seeking to make him, as prior indorser, pay the amount still remaining due in respect of the judgment, to re- PLEADING. 608 imburse D. what his lands had sold for, and also to make up the Joss sustained by Jiim in cons^'fjucnce of the fale of his lands at, as was alleged, a great underviilue. Under the cir- cumstances of the case the court below treated C and D as co-sureties for the continuing partners, and as such liable o'nlv to make up the amount of tlie claim in enual proportions: and It appearing that C. had already paid more than his moiety of the demand, ordered D. to repay the excess to him, togeiher With the costs of the suk, which on an appeal to this court was affirmed and the appeal dismissed with costs. e o^^-^"/"' y-.C— Prior to the General Orders of 1853, (Rule », Urder Vl„) it would have been necessary to make the con- tinuing partners pa.iies to such a bill unless it were shewn th^ they were insolvent : in which case that would aflord a sutfacient reason for not making them parties. Harper v. Knowlson, 253. PART PERFORMANCE. See " Specific Performance." PAYMENT. (plea of.) See " Defence at Law." PERSONAL REPRESENTATIVE. See "Lease with right of purchase." PLEADING. 1. The lessee of u mill situate near a river and driven bv water drawn m a channel from it, sued for damages sustained by him by reason of the obstruction of the flow of the stream caused by the defendant throwing slabs and other waste stuff into the stream, and thereby obstructing the flow of water into thechannel aforesaid. The lessor of the^iaintiffwasthnjner of the land adjoining the stream, and also of the land surround- ing the pond used f r the working of the mill /r«/(/, affirming the judgment of the court below, that the lessee had a right to maintain such action ; and that the decla- ration stating the plaintiff to be possessed of land and premises near to the river, and as such entitled to the use of the stVeam for the working of his mill, was sufficient. Dickson v. Austin, 373. ^ 2. In an action by a principal against his agent, for nedect in insuring his property (a stock of goods) in such a manner 604 PRACTICE. that, a loss occurnnor, ilie insurance company, on beintr sued lor the amount of insurance, obtained a verdict on the ground that the goods had been insured at an over-value, the declara- tion alleged ihe value to be 83,000. to which the defendant amongst other pleas, pleaded that plaintiff had not. at the time 0/ making application to insure, nor at anytime thereafter, goods in his store lo the value of «:U)00, and the jury found for the defendant on these pleas, //c^*/, reversing the judgment of the court below, that the traverse of value in i1ie declaration was an immaterial traverse, and that plaintiff was entitled to judgment non obstante veredicto. McGuffin V. Ryall, 415. — ♦— PRACTICE. 1. The right of appeal from Chancery is confined to orders or decrees made in a cause pending between parties; where tlierefore, an appeal was made to this court from an order directing the taxation of a solicitor's bill against his client in a particular mode, the court dismissed the appeal with costs. In re Freeman, jJragie and Proudfoot, 109. 2. The respondent, although he may, is not bound in such a case to move at an earlier stage to quash the proceedings, lb. 3. The plaintiffs demurred to one plea pleaded, and took issue on another; and the demurrer, on argument, having been overruled, iho plaintiffs entered judgment against the demurrer, and before the issue in fact was tried brought error, which was quashed, on the ground that until the issue in fact was disposed of, error could not be sustained. Dickson v. Ward, 275. 4. ffelJ, affirming the judgment of the court below, that in proceeding to arrest and imprison a party for the insufficiency of his answers on an examination as to his estate and effects conducted before any other functionary than the judge who orders the arrest, it is necessary that a summons to shew cause should, in the first instance, be issued. Afso, affirmino- the same judgment, that the fact of the judge who made the order to commit having authority to make such order, and ihat the same appeared to be regular on the face of it, was not a suffi- cient justificatioi for the attorney of the party suing out such order in an action brought against the attorney and his clients for assault and falso imprisonment. Ponton V. Bullen, 379. 5. Where defendants appealed jointly, and the court thought that all of them except one were entitled to be relieved from the decree which had been pronounced in the court below, the court reversed the decree, notwithstanding tlmt as to one of the appellarils iho eviuericu was sufficient to establish the will under which the plaintiff claimed to be entitled to the estate in question. Black v. Black, 419. REGISTERED JUDGMENT. PREFERRED CREDITORS. See "Assignmenl for benefit of Creditors," 1. PRIVILEGED COMMUNICATIONS. * See " Slander." 605 PROMISSORY NOTE. (made and indorsed in LOWKK CANADA— sued ON IN UPPER CANADA.) See "Lower Canada Statute of Limitations." PURCHASE FOR VALUE WITHOUT NOTICE. The doctrine of constructive notice, and the defence of pur- chase for value, as applicable to this country, commented on. Smith V. Graves, 9. RAILWAY STOCKHOLDERS. (discharge of, by act of parliament.) See '' iMunicipal Loan Fund Act." REGISTERED JUDGMENT. 1. A certificate of the entry of judgment, signed by the deputy-clerk of the Crown, held sufficient for the purposes of registering such judgment under the statute. Gardiner v. Juson, 188. [Since this case was decided the act for the registering of judgments has been repealed.] ^ 3. A., on the 2nd of February, 1857, created a mortgage of real estate in favour of B, which was duly registered on the llih of July following. B„ by an indorsement on the mort- gage, assigned the same to C. ; subsequently a judgment was recovered against B., which was duly registered, ah.-r which C. registered the assignment of mortgage to himself. Held, affirming the judgment of the court below, that the judgment by reason of such prior registration, had priority over the as- signment to C, which, by reason of such non-registration, was void as against the judgment creditor. Freeman v. The Bank of Upper Canada, 363. 3. Held, per Cnrinm, affirming the judgment of the court be- ow, that in order to a judgment creditor retai ning the lien created by the registration of his judgment it was incumbent on mm to Jodge a writ against lands with the sheriff within one J ''I I i| 6tl6 SAtE For taXes, year after the registration of his judgment ; in other words, if such a judgment creditor had neglected to lodge his writ against lands for a year after tlie entry of his judgment, and an unregistered judgment creditor or a subsequently registered judgment creditor had lodged his writ before him, the sale effected under such execution will be freed and discharged of any lien created by such rcj^nstered judgment. [^VanKouffhnel, C. dissenting.] Kerr v. Amsden, 446. — • — REGISTRATION. Held, reversing the judgment of the court below, that when the memorial follows the description, which in the deed itself is sufficient, registration thereof is effectual. Reid V. Whitehead, 580. REDEMPTION. (right of, after twenty years.) See " Mortgage" &c., 4, 5. RELEASE. , (power of debtor to insist on by creditors.) See •* Assignment for benefit of Creditors," 1. RENT. (liability of mortgagee of term to pay.) See " Lessor and Lesee." REPRESENTATION. (affecting third parties.) See Mortgagor and Mortgagee," 5. RES GESTAE. See *' Corporations," RIPARIAN PROPRIETOR. See " Pleading," 1. SALE FOR TAXES. See "Taxes." SPECIFIC PERFORMANCE, ,607 SALE BY SHERIFF. (SET ASIDE IN EQUITY AT INSTANCE OF ANOTHER JUDGMENT CREDITOR.) ^tLu ''"''^•' ^^-'."^ ^^'^" '°''g^'^ '■» 'J^e sheriff's office, was allowed to expire without any thing beinff done under it either by seizing or offering for sale the lands of the debtm- ' A ,er w! L;,r7 ''""'' .^''"= appointed, this with o Le pro es Tsale the 1^:5' '°f r™ ' '"^ ^' proceeded formally K of "lands on Li V ''''"^'°? t^''^'^ ^"^ "^^^^ « return wi lanas on lianas for want of liiiv«rc ." ,.,k i plaintiff sued out a ..«.//.W ^^^L^^d /.' /a t d'ur^undrr which the lands which Jiad been previotly offe ed for ale upon a bill filed by another udgment creditor, the court thri": 3 Tff:' 'h ' °i:'"^' "'^ '^^"^ ^° be cancer; absS?--jf;;Sien:t:sxi^^t;-^^ Gardiner v. Juson, 188. SEDUCTION. In an action for the seduction of the daughter of the plaintiff the action may be maintained before the birth of the child , and r/^w '■''""' '5' ""'"'^ (^ ^'"- IV cJ' 8. Con. Stat U c' ch. 77) does not dispense with evidence of a pecuniarv W «; and Adam Wilson, J., dissenting.] L^i^-o^i^e. v.o., Westacott v. Poweji, 535. SLANDER. In actions for slander or libel it is the province of the indir« to determine whether the occasion of uttering the S^^^^^^ words, or writing the 1 belous matter compiaifed of, wa" or n"^ pr.vijeged.atjd if privileged, Ae/rf, reversing the judgment of he court below, that in the absence of efidencl of mal ce th^.^ IS nothing to be left to the jury as to io»^/ See " Description of land." TAXES— SALE FOR. Behl, affirming the judgment of the court below, that the provision of the statute 16 Vic, ch. 182, sees. 55 and 56, Con. UNPAID PURCHASE MONEY. 609 Stat, of Upper C&nada, chap. 55, requiring the county treasurer in the warrant issued by him for the sale of lands in arrear for taxes, to distinguish those that have been patented, from those under lease or license of occupation, is compulsory; and that Shies effected under a warrant omitting such particulars are void. Hall V. Hill, 669. • TENANT IN COMiMON. (admissions by.) See '< Joint Tenant." TRUSTEE AND CESTUI QUE TRUST. See "Attorney and Client." ULTRA VIRES. See '' Corporations." UNPAID PURCHASE xMONEY. (vendor's lien for.) The purchaser of land from the Crown sold and transferred his right to C. in 1834. C. subsequently transferred his interest to T. H,, whoenleied into possession, and remained in such possession until 1KJ9, when he died, leaving an infant son his heir-at-law. About a year after his death his widow assumed to sell ihe estate to E. H., a brother of her late husband, who entered into possession ; and havino- subse- quently procured, from the original vendee of the Ci'own, an assignment of the .«ame date and in the same words as the one executed by him to C, by means thereof procured from the Crown the patent for the lot in his own name, ;ud mortgaged the property to his brother H. H , who had notice of all "the circumstances attending the title, and to whom E. H. after- wards released his equity of redemption. In the spring of 18H1 H. H., by means of an ejectment, evicted E. II., who up to that time had continued in possession of the. property, and in November of that year H. H. sold and conveyed the'estate to S., who took without notice, and paid the whole of his pur- chase money except £175, for which sum the father of S. gave his promissory note for the purpose of facilitating the carrying out of the bargain, S. leaving in the hands of his father ceriaio securtties, out of which it was agreed that the father should collect means over and above a sum owing by the father to S. to retire the note, which note, however, was not paid in full, 79 VOL. II. 610 WILL — CONSTRUCTION OF. ^675 being still due thereon. In 1863 a bill Was filed by the heir-al-law of T. H., cJHiming under the circumstances to be entitled lo the estate, and to set the sale to S. aside, which was decreed on the ground that the purchase money had not been paid, so as to entitle the purchaser to plead a purchase for value without notice. On appeal this decree was reversed, and the bill in the court below ordered lo be dismissed with costs. [VanKounhnet, C, and Sjtraijfje, V. C, dissenting.] Harvey v. Smith, 480. UNPATENTED LANDS. See "Wild Land Assessment." ♦ - VENDITIONI EXPONAS. (issued on return of spent writ.) WARRANT (TREASURER'S.) See » Taxes— Sale for." WILD LAND ASSESSMENT. Held, affirming the judgment of the court below, that un patented lands, tljough held by purchasers from the Crown who had paid a part of the price therefor, were not liable to assessment, although purchased from the Crown after June J853. \^Esten, V. C, dubitante.] The Corporation of the County of Simcoe v. Street, 211. See also <' Voluntary Payment." WILL— CONSTRUCTION OF. A married woman, domiciled in Upper Canada, on the I7th December, 1828, made her will, the second paragraph nf which was as follows: "I give, devise, and bequeath my house and property in St. Paul street, Montreal, left me by my former husband, Michael IVndeau, to my son Allan, with power to give an equal share to his sisters ^«;f»?, Cafhen'ne and Harriet^ and to his br 'iherJohn,'" and died shortly after the making of this Will. On the 20ih of March, 1W42, her husband made and published his last will and testament, by the fourth and fifth clauses of which he devised lot No. 37 (the premises in ques- tion) to his son John WatKon Macdonell, and lot No. 33 ti his son Alexander Roderick MacdonelL By the 14th clause, he gave to his son Allan his watch, gold seal and gold ring. In a WILL — CONSTRUCTION OF. 611 subsequent part of the same will (para. 16) he directed, that ^ould John Watson Mncdonell prefer to take possession of lot No. 3:2, then lot i\o. 37 was to become vested in Alexander Roderick, the same as if it had been willed to him. By a codi- cil to this will, dated on the 1st of April following, the testator declared his will and desire to be that his son Allan should take holy orders, but should Allan's health or any other reason- able cause or circumstances cause him not to enter into holy orders, he ordered and devised that Allan should have to him- self, and his heirs for ever, the whole of the said lot No. 37, in which case John Watson and Alexander liuderick were ordered to receive certain other lands particularly mentioned, adding in a subsequent clause of the codicil, '< But should mi, son Allan not divide or give over in full an equal portion of the house in St. 1 aul street, Montreal, as was his mother's intention, as appears hy her last will, in which case 1 order and devise, that my son Allan shall only receive of my property what has been willed to him in my last will, be/ore this will was written, then this codicil to be null and void; otherwise to remain in full force and virtue." After the death of the testator, Allan, not having taken holy orders, entered into possession of No. 37, and also into the receipt of the rents and profits of the property in Montreal devised by his mother, treating it as his own absolutely, never having made any conveyance of any portion thereof or paid any share of the rents and profits tft his sisters and brother, and having also ex- ecuted a mortgage thereon, as owner in fee, for his own benefit. John Watson Macdonell had after his father's death chosen to take as his share lot No. 32, and \.hexe\ii>on Alexander Roderick Macdonell, clai.Ttiing that under the terms oHhe codicil he had become absolutely entitled to lot 37, brouffht ejectment there- for. It was shewn that by the law of Lower Canada, the words of the will of Mrs. Macdonell vested in the sisters and brother absolute interests in the property in Montreal, and that no conveyance or assignment by Allan Macdonell was necessary to vest their portions of the estate in them. Held, reversing the judgment of the court below, that the event upon which the estate was to become divested from Allan and to devolve upon the plaintifT had not happened : or, in other words, that the condition upon which Allan held the es- tate had not been broken. {Esten, V. C, dissenting.] McDonald V. McDonell,343.