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Las cartas, planches, tableaux, etc.. peuvent Atra filmAs A des taux de rAduction diffArents. Lorsque ie document est trop grand pour Atra reproduit en un seui clichA, il est filmA A partir da I'angle supArieur gauche, de gauche A droite, et de haut an bas. en prenant ie nombre d'imagas nAcessaire. Las diagrammas suivants illustrant la mAthcda. n 32 X 1 2 3 1 2 3 4 5 6 CO REPORT OF CASES DECIDED IN THE COURT OF KING'S BENCH. OF UPPER CANADA. BY WILLIAM HENRY DRAPER, ESQ., BARRISTER AT LAW. _.„ „. O0NT*INr THE CAfBS DSTBRMINED FROM HICHABLUAil T«BM 10 010. IV, TO BA8TBR IBRM I WM. IV. WITH A I ABtS OP rns NAMR8 OF CASKS AilO'TBD, AMD DIGUT or THI PKINaPAL UATT^as. SECOND EDITION. ,.. , MVISro AND OORRKCTRD BT TIIK REPORTER, WITB Tmt ADDITION OP NOTES OP VARIOUS OASEj BEARING ON TUB DB0I8IONB BBPOKTBD. t TORONTO: HENRY ROWSELL, 1RA1. -^"S 'S^Z '"'^rZXfJSll^^^.i'.'''^-^ <»' O" ^ on. thou, ofthe ProTiace of Cawd,. " " Bowbki, m th. Office of the Begirtrw Tb ■**'•■» *«'««.»»iimiM,«M ■nuT, TOKovn). iv Lord one thoa- of tho Begutrar JUDGES or THE COURT OP KING'S BENCH. DVBIHO THB PBRIOD OF TUBSB RIPOSTI : The Hon. John Bbvbrlby Robinson. Chief Juttiee. « M Levics Peters Sherwood, "j James Buchanan Macaulay. p «***'« Juifye$. Attorney-General: Henry John Boulton, Esq. Solicitor-General: Christopher Alexander Hagerhan, Esq. t A TABLE or xu NAMES OP CASES REPORTED IN THIS VOLUME. PAP» A. AndnusT. Ritchie 6 Atkins T. Thornton 280 Attorney General t. Spafford 320 B. Bank of Upper Canada, on the appli- cation of Robert Baldwin, Esq 65 Baker t. Booth 65 Beard T. Orr 40 BeardT. Orr 241 Benham T. Shaw na Bell V. Stewart 159 Bergin v. Thompson 1 Bergin v. Whitehead 608 Bnrford T. Oliver 9 Gallagher ▼. Strobridge I68 Campbell t. Madden 2 Campbell T. Hepbnm... 3 Cavan v. Welsh 246 Chisholm t. Simpson 2 Ohnreh t. Bamhart 213 ChnrohT. Barobart 443 PAoa. C. Chisholm t. Ward 478 Cooper V. The Canada Company 189 Cooper T. The Canada Company 418 Cornell t. Qaick 427 CoxensT. Ritchie 167 Dickson t. Crooks 117 Dickson v. Markle 286 DougallT. McLean 818 Doe T. Lindsay 128 Doe v. McDonnell 874 Doe T. Mitchener 471 Doe Y. Roe 162 Doe V. Chisholm 216 Dmmmond t. Bradley 248 B. Erans t. Shaw. 14 Falls T. Lewis 26» Falls T. Lewis 600 Ferrie T. Rykman 61 TABLE OF CASKS. F, PAfll. PAOI. Fmi«T. StsrkwMtiier 413 FenieT. Tuiuhm 827 "^»- D<7l« 828 Ponyth T. Hall 291 I«oiurd T. Qltndeniun 28Z Lindsay t. MoFarling 5 IJBl«y T. ChMMman 58 M. 0«d««rT. Stoddard 94 1 ^'T"!' ^-^Foator 479 0»t«t T. Crooka QttMT. Crooks ^ 180 446 *«• T. Meigiwn jgy H. Halt T. Matthison Holt T. Janria Howe T. Newman HngUI T. DrisooU 284 68 201 190 90 MaitlandT. Seoord 455 MoDougall T. Young ]]] McNab T. Bidwell ,4^ Meighan v. Browne iqj Moffatt T. MoCrea j, Moore T.James 233 MulgrewT.Pringle 269 Murray T. Orr . Hyde T. Bamhart , Hyde t. Bamhart , 1. P. Phelanr. Phelan., 380 PWUlpa T. Redpath gg PhiUlpa V. Smith 290 IngrahamT. Cunningham 109!^*"" ^' **°*'*'*^ 169 In re. SherilT of Newcastle !......' 503 ( ^"""'" ^- H»n>"t<»n 898 Irea t. Hitohcock iTes T. Hitehoock 247 480 Jarris t. Washburn , Johnson t. Durand , Jones T.Chace B. 60 163 68 822 filbom T. Forrester . 882 I<««nardT. Metritt jg^ Leonard T. Merritt ,„..." gSl R«x T. Jaokson Bex T. Justices of Newcastle 114 Bex T. Justices of Newcastle 204 Bex v. Theale gjg Bex T. Sheriff of Niagara... 331 Bex T. Ires Bobinet v. Lewis BobinetT. Lewis Bobinet T. Lewi* BobinetT. Lewis Bowsell T. Hartwell 90 Boohleau v. Bidwell 345 Reggies T. Beikie 244 440 44 164 228 TABLI OF 0A8B8. rxaa. . 6 .. 68 . 479 . 460 . Ill . 144 167 11 283 269 8 PAOI. Small T. MoKauia.. Small ▼. MeKauia.. 174 341 ftt PAOI. VaryT. Mniriiaad 4M Tmax T. Chriity.. V. Vineant t. MoLaan.. Waahbomr. FothargiU. 2JJ Whitahead t. FothargUl. ! Whitney T. Stona WUlardr. WooIoDtt Williama t. Kbg..'. 168 Winehaater t. Cornell .. 476 200 286 201 480 UPPER CANADA REPORTS FN THE KING'S BENCH OAHES DETERMINED IN MICHAELMAS TERM, 10 GEO. IV. Present The Hon. John Beverley Robinson, Chief Justice *^ Levids Peters Sherwood, Judge. James Buchanan Macaulat, Judge. Bergin v. Thompson, The court set aside the interlocutory judgment and assessment of damages in this cause, upon the following grounds : first, that the affidavit of service of process stated only that there was a notice on the copy explaining the '^intent" of such service and not the " intent and meaning." Secondly that there was no rule to plead ; which the court thought requisite, by the terras of the statute 2 Geo. IT. ch. 1, in all cases in which the plaintiff appeared lor the defendant ; and they remarked that this omission was a substantial defect, not a mere irre- gularity. In answer to a question which arose in this cause. (a) Vide 4th rule of court, made ia Euter Term, Hth Oeo. IV, infra. ^ vol. I. 2 MICHAELMAS TERM, 10 GEO. IV., 1829. the Chief Justice remarked, that notice of intention to move to set aside proceedings, as in this case, should be given two days before the commencement of the assizes in which the damages are assessed. Washburn for plaintiff, King for defendant. Chisholm v. Simpson. Motion for costs, for not going to trial pursuant to notice. Per Curiam.-^This is a peremptory rule, (a) Campbell v. Madden. ^offiJer"""" ""* properly filed till it is marked "fiU"°'>l«J "PPly for leate to entn^ a -nM^tion in oMsr to ae^jHTo too piamUff or his costs. sg-i-oa, .n This was an action of assumpsit. The damages i 4 MICHA»IJ«AS TERM, 10 OBO. IV., 1829. in the declaration were laid at £100.— Plea non assumpsit and notice of set-off. At the trial, at the last assizes for the Home District, the plaintiff had a verdict for £1 6s. 7d. The master refused to tax the plaintiff his King's Bench costs. Washburn now moved for a rule directing the master to tax full costs, and cited Langham v. Cruikshank, decided in this court last Easter Term and cases.— Temp. Hardw. 5. Ridout resisted the application, on the ground that the judge who tried the cause had not certified under the statute .68 Geo. III., ch. 4, and on the small amount of the verdict. Sherwood, J.— The statute creating the District Courts gives them jurisdiction in cases from 40s. to £15 of unliquidated demands, and to £40 where the amount is liquidated, or ascertained by the act of the parties. Now this verdict is below the jurisdiction, and the cause of action, as spread on the record, is beyond the jurisdiction of the District Court. As to what might be decided if thfs appli- cation came from the defendant, to resist costs I give no opinion. As it is, I think the plaintiff' is entitled to his King's Bench costs. Macaulat, J.—I cannot subscribe to the case in Hardw. to the extent urged, for I cannot agree that the party's own statement on the record shall be considered decisive as to the amount of his claim. Prima facie, I take it this court has juris- dicrion in every case. Its being restrained Is a matter of exception, and the party who claims to MICHAELMAS TERM,. 10 GEO. 17., 1829, fi benefit by that exception must take proper steps to bring his case within it. I think this exception should appear in some way upon the record. Sup- pose one count only in the declaration, and verdict for an amount of the proper competence of the District Court; or for a promissory note of the pro- per competence of the District Court, with other counts, and a verdict for the note only; or a verdict for goods sold and delivered to £14, and on every other count verdict for the defendant.— In all these cases, by comparing the record and postea together, there being no certificate, it would appear that the action might have been instituted in the inferior court. The plaintiff may apply for the certificate or not, as he pleases, but I do not think the master is bound to infer, either from its absence or the small amount of the verdict, that the plaintiff is not entitled to King's Bench costs. The plaintiff's cause of action might be beyond the inferior juris- diction, and reduced, as in this case by set-off, to £1 5s. or less, still the judge cannot certify that this was a case pro{)er to be withdrawn from, when in fact it could not have been brought in the District Court. In all cases, where the record and postea taken together would not warrant the conclusion that the action was improperly instituted in this court, the proper course for the defendant is, in my opinion, to apply for leave to enter a suggestion on the roll, to deprive the plaintiff of his costs. By this means consistency will be preserved, and the matter will appear clearly on the record.— The learned judge cited the following cases as applicable to the question : 3 B. & P. 617 ; 1 Str. 49 • 2 Str 1120, 1191; 2 H. B 250; Hullock on Costs' 260 ' 6 MICHAELMAS TERM, 10 GEO. IV.. 1829. The Chief Justice having been counsel in the case when at the bar gave no opinion. Rule absolute. («) Andruss v. Ritchie. ''t::t!jz^:f:n^i:r' °'"'"^'' ^^ *'>" -«^-'* '» ^^^^ *» ban. the The court set aside the arrest in this cause, on the defendant filing common bail, and engaging to bring no action for a defect in the affidavit to hold to bail which stated that the defendant was indebted on a promL'^sory note made by him to Burr, Wakeman, and Co., or order, at the Rochester Bank, six months after date; omitting the word "payable." Attorney-General for plaintiff, Baldwin for defen- aant. I .,, Lindsay et al. v. McFarling m al This was an action for mesne profits, tried at the last assizes for the Eastern District, before Sherwood J. On the trial, the judge refused to allow the defendants to give in evidence, in mitigation of damages, the value of certain buildings thev had erected on the premises. Verdict for plaintiff. ^idwell h ad obtained a rule nisi to set aside the (o) See Gardner t. Stoddard, ittfra. MICHAELMAS TERM, 10 GEO. IV., 1829. f verdict, and for a new trial, for the improper rejec- tion of this evidence. Tfie Solicitor-General shewed cause. The jury are not limited to the amount proved in giving damages, they may go beyond the mere rent of the premises. 3 Wils. 118; Doug. 584; Adam's Eject. 337. The costs of the ejectment, and not merely the taxed costs, may be given in evidence. In this case, much expense has been incurred be- yond the costs taxed, and the damages are under £21. The action being sustainable, some damages must have been given, and the court cannot say the sum rendered is unreasonable. No evidence of this sort appears to have been admitted in any reported case; and the very buildings, the value of which the defendants seek to have allowed to them, form part of the estate which was recovered in the ejectment. In order to have availed themselves of this mitiga- tion, the defendants should have pleaded that these buildings were taken in full satisfaction of the mesne profits, not offered the facts in evidence under the general issue: the plaintiffs then, if they persisted, would have recovered nominal damages only, 4 Taunt. 459. The plaintiffs were clearly entitled to the mesne profits, from the time of the demise laid in the ejectment. The defendants, in erecting these buildings, committed a trespass, and cannot there- fore call upon the plaintiffs to pay for them. Bidwell, contra. The amount of damages is not the question now. The point in discussion is, was this evidence properly rejected or not? and this was what the defendants had leave to move. It was 8 MICHAELMAS TERM, 10 GEO. IV., 1829. proved that the defendants went into possession Zrt H "' T *'^ P'^''^^'^^' apprbatTon- sure y this being the case, the value of the buildings ereced should have been taken into conside at ion in mitigation of damages, although it could no a^ argued that the jury may consider extraneous matter to increase then why not to mitigate damages tIs hav bZ ""' ''"^ '^^° pleaded, it could only have been given m evidence under the general issue. 2 Bac. abr. damages, B. Godb, 63. If dis- ^an be allowed m damages. Com. dig. Trover, npJJ'.^^"^^ J^swcE.-I think this evidence pro- per to have gone to the jury; it would most proba- bly have materially aflFected the verdict. dpn^T 1^'- ^•"^'^ ''^''*'°"' I *^^"k this evi- dence should nave been received at the trial. At that time, it struck me that the erection of this house was a trespass, and therefore could not be taken into consideration, but I am now of a different opmion, and agree that there should be a new trial. Macaulay, J., expressed no opinion. It was afterwards directed by the court, that the rule tor a new trial should be made absolute, with-' out costs, unless the plaintiffs would reduce their damages to forty shillings sterling, and enter their judgment accordingly , which they afterwards did. (a) (a) Sn Fattenon t. Beordon, 7 V. C. Q. B. S26. MICHAELMAS TERM, 10 GEO. IV., 1829. BuRFORD V. Oliver. 9 In case for distarbing plaintiff's ferry, it is not necesury to proTe that the defendant either received or .luimed any hire or payment. Action on the case for disturbance of the plaintiff's ferry. At the trial, evidence was given that the defendant carried passengers, goods, &c. The plain- tiff 's right to the ferry was also proved, but no evidence was offered to the jury that the defendant either received or claimed any hire or payment. The defendant's counsel objected that such proof was necessary, and this point was reserved »or the opinion of the court, which was this day delivered by The Chief Justice.— The single point referred to the decision of this court is, whether, in an action on the case for disturbance of the plaintiff's ferry, it is necessary to aver that the defendant ferried for hire or gain. In the declaration there are counts containing such an averment, and others in which it is omitted; but upon the trial it seems, although abundant evidence was given of the carrying pas- sengers and their goods by the defendant, to the manifest injury of the plaintiff, there was no proof that gain accrued to the defendant, or that he stipu- lated for any hire, and upon an objection that such proof was necessary, the point was reserved at nisi prim. Upon argur lent no authority has been pro- duced to shew that such evidence is necessary to sustain the action, and upon reason and principle it cannot be required. The case of Blisset v. Hart, Willes 608, is so far satisfactory on this point, that the declaration in that cause contained no such ° VOL. I. 10 MICHAELMAS TERM, 10 GEO. IV., 1829. averment; and though various exceptions were raised, none of them proceeded on that ground and after mature consideration that declaration was sus- tamed. In the case in 4 T. R. 666, there was no such averment; but though in other cases such averments have been introduced, because the facts happened to be consistent with them it cannot be reasonably inferred that they are necessary in all cases to sustain the action. With respect to fairs and markets, the same question might arise. More cases are to be found under that head than respecting ferries, and they commonly proceed on: the same principle. In 2 Saund. 172, there is a case of this description which shews clearly that the true question in such actions is, whether an injury has been done to the pla-ntiff 's right. In that 'case the plamtiff had a franchise of a market to be held every Wednesday, with right to tolls, stallage, &c. The defendant, without right, held a market in the same place every Tuesday. It was contended that this was no direct contravention of the plaintiff's privilege But the court adjudged that by fore- mjury than if held on the same day, and that whether nuisance or not was the question with the jury So here, the carrying gratuitously, if the case really was so was probably a much greater injury to the plain- tiff (as was urged in argument) than if tolls had been charged. It will be found also, that in the case in Saunders, just alluded to, there is no averment that defendant charged or received any thing for the stalls m his market, or that he erected them for gam. Upon the reason of the thing, many consider- MICHAELMAS TERM, 10 GEO. IV., 1829. 11 ations occur upon very slight reflection, but they are so obvious that it is unnecessary to state them. We think the point is clearly with the plaintiff. Per CMnaw.— Judgment for the plaintiff, (a) Moffat et al., Executors of Paterson, v. McCrea et al. In an action for use and occupation, a declaration which stated the occupation to haye been by A. B., at the special instance and request of the defendants; Held good on motion in arrest of judgment, though it was not averred that A. B. was tenant to the defendants, nor that defendants held under the plaintiffs. This was an action for use and occupation, ^he declaration stated that defendant was attached to answer to plaintiffs, executors of one Paterson, and was indebted for the use and occupation of certain premises held, used, occupied, &c., by one A. B. at the special instance and request of defendants. In- terlocutory judgment had been signed and damages assessed at the last assizes for the Bathurst District. The Attorney-General had obtained a rule nisi to arrest the judgment, and in the meantime to stay the proceedings; and now no cause being shewn, moved to make it absolute as a matter of course, without argument, which the court refused unless some substantial objections were shewn to the record. He then urged that the declaration does not shew that A. B., who occupied the premises, , was tenant to the defendants, nor that the defendants held under the plaintiffs. It cannot be inferred that such was the case — the more apparent inference is, (a) See Peter t. Kendall, 6 B. & C. " Trotter t. Harris, 2 V. & j. 286. 12 MICHABIIUS IHUl, lo aEO. IV.. 182». that the defendants were mere guarantees for the Wn.ent of the rent. This is not within the statute of use and occupation. It also appears on the rS ha tplamtiffs have no right to claim the reuTof hese premises. 1 admit that in an action of ml sort the tenant is precluded from denying the t«^ of h,s landlord; bnt here the plainti Jhave'r fa' of It. They shew that they were the executors of SSH' Tr '''" ^"^"'"S' 'f defendants we °e liable at all, it must be to Paterson's heir. Plain! .16 were not bound to shew title, but ha;ing done so, the court will see that it is defective and bad (taEFjusTica-An action for use and occupation would be sustainable, stating the use and occu^ on to have been by a third party. This would aCbe the ^e though in point of fact the premises were empty. Although the defendants m,K itabk yetTA ".err X*" ""' "' ''" p-^" It- 1 tu • "*" *' possession of premises to which he has no right, he may maintain this ac on Vpon this dechration it is competent for the plain- tiffs to prove that by the wiU of Paterson they were enftled to this rent without pleading the fact^d ae objection comes after an interlocutory judgment. There IS another objection, which has not been noted in argument, which is, the want of any statement or averment that the premises were occupied with the consent of the pLtifls. iTm however indmed to think that the statement of the request of the defendants, is sufficient, as I think it to permit A, B. to occupy. MICHAELMAS TERM, 10 GEO. IV., 1829. 1 g Sherwood, J.— concurred in thinking the decla- ration good. Macaulat, J.— I think there is no averment of permission to occupy, sufficient to support this action. It is true the plaintiffs need not have the legal title in them to maintain it, as the defendants cannot contest the tiUe of those by whose permission they occupied. 6 T. R. 4; 10 East. 352; but the plaintiffs must sta*e with correctness, by whose permission the defendants occupied. 1 Camp N P 0. 466 ; 2 Stark. N. P. C. 356. For the plaintiff,' unless the defendant came in under him, or recog- nized his title, can only recover from the time the legal estate is vested in him. I certainly think the permission of the plaintiffs is a substantive aver- ment and necessary to be proved. No action would be sustainable by the plaintiffs upon a re- quest made by the defendants to Paterson, and it does not appear that the permission to occupy was after his death given by the plaintiffs as his execu- tors. The occupation, for all that is shewn to the contrary, might be under a permission given bv Paterson. The plaintiffs do not shew that they were ever recognized as landlords by the defendants. Per Curiam.— {M.AQA.JJLAY, J., dissenting.)--Ruie ntsi discharged. [Wrnam Henry Draper, Esq., was appointed Re- porter to the Court this term, in the room of Simon Washburn, Esq., resigned.] [14] HILARY TERM, 10 GEO. IV., 1829. Present : The Hon. John Beverley Robinson, Chief Justice. Levius Peters Sherwood, Judge. James Buchanan Macaulay, Judge. (I Evans et al. v. Shaw. To an action on a bond for the limits by the assignee of the sheriflF, the bail pleaded, Ist. That the debtor left the limits without the knowledge of the bail, and before the commencement of this suit, »nd before the assignment the debtor returned, and after such return rempined upon the Umite ; and before this suit, and before the assignment, the bail surren- dered, and the sheriflF received him into custody in satisfaction and dis- charge of the bond. 2nd. The same down to the statement of the debtor s return to the Mmits, and then averring that after the return the debtor remained within the limits in the custody of the sheriff until the commencement of this euit. Held bad on demurrer. This cause had been argued last term, and judg- ment was deferred till now. It was an action of debt for £4.0, on a bond given by defendant to the sheriflF of the Midland District, conditioned that L. A., who was in execution on a ca. sa. issued out of the Midland District court, should not go or remove beyond the limits. The declaration alleged that L. A. did go and remove beyond the limits during his confinement at the suit of the plaiiiflPf , and did withdraw and depart from and out Oi ' - . limits. After Oyer— defendant pleads that L. A. cltparted from the said limits privately and without defendant's knowledge, and avers that before the commencement of this suit, and before the assignment of the bond from sheriflF to plaintiflFs, and before defendant had noli 36 of L. A's departing from the said limits, he cctumed, '\dd continually after his return he re- iaained within the said limits, until afterwards and before the commencement of this suit, and before HILARY TERM, 10 GEO. IV., 1829. 16 the assignment of the said boud, defendant surren- dered L. A., and the sheriff received him into his custody in full satisfaction and discharge of the .said bond, with an averment of notice to plaintiffs, and of identity. Second plea the same as the first, to L. A.'s return, and averring that continually after his return L. A. remained within the said limits in the custody of the said sheriff, until the commence- ment of this suit. To both pleas there was a gene- ral demurrer. The question arose on the construc- tion of the provincial statute 2 Geo. IV., ch. 6, which reciting the expediency of assigning limits in which debtors may have the benefit of exercise and air, without subjecting the sheriff to an action for escape, enacts that justices in quarter sessions may appoint limits not exceeding six acres, and that debtors may be or remain at any part or place within such limits, without subjecting the sheriff to an action for escape from such gaol or limits; but it shall not be incumbent on the sheriff to allow any debtor the use and benefit of such limits, unless he shall furnish good and sufficient security that he will not at any time during his confinement go or remove beyond such limits. By 2nd section. — If any debtor who may have given security, &c., shall withdraw or depart from or out of such limits, it shall be lawful for the sheriff from whose custody he shall so with- draw, to sue such debtor and bail, &c. By 3rd section. — The sheriff is bound, on such debtor so withdrawing or departing, to assign such security to the plaintiff if required. This act is amended by the 7th G-eo. IV., ch. 7, which enacts that it .shall be lawful for any person 16 HILARY TERM, 10 GEO. IV., 1829. having given security to the sheriff for any person to enjoy the limits, to surrender such prisoner into the hands of the sheriff, his deputy or gaoler, and upon such surrender the sheriff shall deliver up, &c., the bond or security given to him by such person, so that he shall be wholly discharged therefrom. Provided always, that nothing therein contained shall be construed to prevent the sheriff from re- newing such security in the same manner as if such prisoner had not enjoyed the limits, &c. The Solicitor-General in support of the demurrer. In England it is true that an action could not be sustained against the Marshal in K. B., who pleaded a plea similar to the above. But there the security is not assignable. Here the statute makes it so. The condition of the bond is not leaving the limits— if this be done the bond is forfeited and the leave or knowledge of the bail is immaterial. If it were otherwise a party might continually slip off the limits and return. The forfeiture of the bond clearly takes place when the defendant leaves the limits, and his subsequent return cannot cure it. The security is not merely to the sheriff, but to the creditor. P. 639. Cited 2 T. R. 126 ; 5 T. R. 37 ; 2 C. & Bidwell, contra. The demurrer admits the facts stated in both pleas. It is not indeed ^averred that L. A. remained in the sheriff's custody in gaol, till the commencement of this suit, but that is implied in the averment that the sheriff received him into custody, in full satisfaction and discharge of the bond. In 11 Ea. 406, it was held that an averment ill a HILARY TERM, 10 GEO. IV., 1829. 17 that the sheriff detained prisoner without stating how long, was a sufficient averment of detention until the commencement of the suit. So the aver- ment that the defendant surrendered L. A. into the sheriff 's custody, and that the sheriff received him in discharge of the bond, implies a detention until the commencement of this suit ; at all events, it appears from the pleadings that the escape was not voluntary but negligent. This appears from analogy in the case in 2 T. R. 126, It is clear that a return of a prisoner to custody before action is brought is a bar to a suit against the sheriff. The sheriff then would not be liable to the plaintiffs. If so, why should his security? The 2nd Geo. IV., ch. 6, was passed for a humane purpose, to give the debtor certain liberty without subjecting the sheriff to an action. If, then, in this case, the sheriff would not have been liable, he could not have maintained an action against his bail. If he had no right of action, his assignees cannot be in a better situation, especially as the plaintiffs had notice. But further, when the surrender to the sheriff took place, he alone had a right of action, and this is discharged and released by his accepting the prisoner in the manner stated in the pleas. This was an actual executed satisfaction, and its legal effect is the same as if the bond had been given up to the defendant. Chief Justice. — This is an action brought by the plaintiffs, as assignees of the sheriff of the Midland District, upon a bond given under our provincial statute, 2 Geo. IV., ch. 0, by a prisoner, and the defendant, his surety, upon occasion of the former obtaining the indulgence of the gaol limits. The VOL. I. 18 HILARY TERM, 10 GEO. IV., 1829. bond is not denied by the defendant, but he pleads two special pleas, setting forth, &c. (as stated.) The question upon the general demurrer to these pleas is, whether either of them is a bar to the plaintiflFs' recovery, and it is a question which must be decided without the aid of cases precisely in point, because in England the same circumstances cannot occur. I am not aware that any decision involving this question has taken place here. The court are strongly impressed with the importance of the principles which it involves, and my brothers and myself have anxiously endeavoured to bring our minds to the same conclusion upon it ; but 1 regret to say we have hot succeeded in that at- tempt, and it therefore only remains that we de- Clare the opinions which we have severally formed. In my judgment, the matter set forth in these pleas is no bar to the plaintiffs' action, and though I may think it reasonable, and perhaps desirable that the facts pleaded should constitute a good legal defence, I cannot satisfy myself that upon any sufficient authority I can determine that in law they do so. Great solemnity is attached to con- tracts under seal, and the law deals with them in a manner which partakes of mathematical pre- cision. Here the defendant has executed a bond to the plaintiffs, or rather a bond which, under the statute, has been assigned to the plaintiffs in the penalty of £40; but the plaintiffs' right to sue upon the bond is subject to this condition—that if a (pertain prisoner, who has been allowed the gaol limits, shall not depart from those limits, so long as he remains confined at the suit of the plaintiffs in the original action, this bond shall be void. The HILARY TERM, 10 GEO. IV., 1820. 19 plaintiflFs sue upon this bond, averring that the con- dition has been broken and is gone, and that their right of action is therefore absolute, and stands discharged from that condition or defeasance. The defendant neither denies that he executed the bond, nor does he plead that it was illegal, or that it was fraudulently obtained, nor does he pretend that the condition was kept ; on the contrary, he admits that, in fact, the condition has been broken, and he relies for his defence upon some thing that has been done since the breach. The prisoner, he says, departed, it is true, but it was without his knowledge ; that he returned, also without his knowlege ; that he (the defendant) surrendered the prisoner to the custody of the sheriflF, who has received him and holds him, and that all this was before the action was brought, and before this bond was assigned by the sheriflF to the plaintiffs, the creditors in the original action. Now, considering the strictness that prevails in pleading upon specialities, in which many equitable defences that may be entertained in actions of assumpsit, or debt on single contracts, are of no avail, I cannot see upon what authority the matter pleaded here can be adjudged to be a bar to the plaintiflfs' re- covery. It cannot be upon the principle which governs the court in interposing, on various grounds, to relieve bail to the sheriflF upon mense process, even after the assignment of the bail bond and an action brought upon it, neither can it be upon the same principle upon which the court relieves bail above after a sci.fa. is brought upon their recogni- zance ; because, in the one instance, the power of extending relief is given by the express terms of a statute, and in the other, the court ground their 20 HILAR! TERM, 10 GEO. IV., 1829, right to interpose, upon the principle that a recog- nizance is a record of their own court, over which they can exercise such a control as to prevent it being used oppressively or unjustly. And besides, in both these instances the court interposes upon motion, and it is expressly declared that the relief which they extend in that manner could not be ob- tained by pleading, after the condition of the bond or recognizance has been broken, because the ground on which they interfere would form no bar to the plaintiffs' action ; and therefore it is, that although after a sci. fa. brought, the bail may surrender their principal upon motion, and obtain an exoneretur and stay of proceedings, they could not plead such a surrender in bar, as they may, when they have surrendered the principal upon the return of the non est inv, to the ca. sa. — 1 Ld. Raym. 167. Then it remains to be considered, whether our provincial statutes, with respect to gaol limits, au- thorise us to treat a surrender, after the bond has been forfeited, as a discharge or satisfaction of the obligation. The statute, 7 Geo. lY., ch. 7, expressly empowers the surety to render the prisoner in dis- charge of his bond, and the question is, whether it gives the surety power to do this, and thereby bar the plaintiffs' action against him, after the bond has been broken. If we could fairly discover, from any thing in the act, that the legislature had (hat inten- tion, we should be bound to give effect to it ; but without pretending to conjecture what may have been meant, further than the language furnishes us with a guide, I c^annot discern such an intention, and I do not, myself, feel authorised to supply it HILARY TERM, 10 GEO. IV., 1829. 21 from implication, contrary to the contract of the parties in the bond, and contrary to the principles of the common law, which certainly would not re- cognise, in the matter pleaded here, any legal defence to the action. The case of Bonafous v. Walker (2 T. R.), is good authority to shew that in an action of escape against the sheriff, a retak- ing on fresh pursuit, or a voluntary return, which is equivalent, may be pleaded in bar, but, for ob- vious reasons, it is inapplicable here ; while the case of Chambers and Garabicr, cited in it from Com. Rep., though it is loosely stated, tends strong- ly to show that in this action the surrender is no defence. If it be thought reasonable, on the other hand, that it should be a bar, it ought to be con- sidered that the granting the limits is an indulgence which, in some cases, may have a tendency to di- minish the creditor's chance of obtaining payment of his debt, and therefore it is due to the creditor that abuse should be guarded against by rigorously enforcing the conditions upon which the indulgence is granted. I am not, therefore, certain, that it would be safe to found my judgment upon a pre- sumption that the legislature intended to give the right to surrender, after breach of the condition ; and, at any rate, as I see nothing to indicate such an intention, I am in favour of the demurrer. Phbfwood, J. — (After stating the case.)— It ap- pears to me that the principal question in this case is, whether the bail for the limits are liable to the creditors, in a case where the sheriff is not at any time liable. It is my opinion that the bail are en- titled to equal protection with the sheriff. Under ^2 HILARY TERM, 10 GEO. IV., 1829. great U.e flrst act (2 Geo. IT., ch. 6,) I should doubt whether the defendant is liable in this action Th,s act directs the sheriff, if required by the plamftr, to assign to him the security, on the debtor wuhdrawins or departing from the lim ts and I am not at all clear thit the "sheriff Ts bound not T- 1''°"'' '" *'^ ""'«■ " '•'^ plaintiff did no require h,m ,o do so, before the debtor voiun- terily returned, and was placed by the sheriff in close confinement. The words of the act are " on such debtor withdrawing or departing," the keriff shall be bound to assign the security t^ the plaTni ff wh,chezpression makes it at Icasf doubtfnU; my mmd whether the proper construction of U,e 2t would not require that the debtor should be provTd to have been off the limits, at the time the phS demanded the assignment of the security, in order g,ye h.m an absolute right to such assignment and enable h,m to sustain an action againsf the sheriff for refemg to assign. It is very clear, however fc th.s statute does not confer any authority on , he whatsoever tV'', ''•','"• "'"'' -^ "-"-tance Whatsoever, The legislature found it expedient to an^end this act by the 7 Geo. IT., ch. 7., by g v ng th^ ba 1 the power of taking and surrender ng the deb or m the,r own discharge. It is urged, on the mrt of he p amtiffs, that the bail have no a;tho,!^;,Ce; h.s aet, to take and surrender their principal af°er f .r XZh V'"'"' ^™" '"' "">' ''o^!e:t''st and h.; ^ . ' '""^ '■■=«""■ ™ the same day and before any other person has knowledge of hh snrS:: • the' debt" "'"• '"^ """"^ <" *« ^^^ surrender the debtor is circumscribed by the eaol linnts, and cannot be exercised beyond thos"^ boun"^' HILARY TERM, 10 GEO. IV., 1829, 23 Before 1 proceed to state the views which I take of these acts, I will remark that, in my opinion, they should receive a liberal and equitable construction according to the rules of the common law, respect- ing special bail, prisoners confined for debt and the officers themselves charged with the custody of debtors. The statutes now under consideration were made for the relief of prisoners confined for debt, and such acts should be construed equitably.-Burr 747, 901. Suppose the sherifi" should allow the debtor to remain on the limits without exacting bail from him, which I think he has an undoubted right to do ; if the debtor depart from those limits, and the sheriff should immediately fol- low and bring him back, before any action was com- menced for the escape, would the sheriff" be liable ? I think he would not, if the escape were a negligent one. Now I consider that the intention of the legislature was, to give equal power and equal pro- tection to the bail for the limits, as regards the creditor, to that which the common law gives to the sheriff', for the same purpose ; because, while the debtor IS on the limits, he is as much at the risk of the bail, as he would be in close confinement at the risk of the sheriff- ; therefore, the reason for protec tion 18 as strong in the one case as in the otJier It appears to me, that the justice and necessity of placing the bail on the same footing with regard to nnmunity that the sheriff is, must have been evident to the legislature ; and I therefore conclude that thev intended to do so, by the very general words which they have thought proper u, use in the creation of the power given to tlie bail, of surrendering the principal. They had no such authority by the first 24 HILARY TERM, 10 GEO. IV., 1829. act, and were left by that statute to rely on the honesty and correct conduct of the debtor, which, in many instances, were found to be imaginary. This circumstance undoubtedly rendered the obtaining bail for the limits extremely difficult, and, in my opinion, formed the principal inducement for changing the law. The legislature must have bec"! convinced that nothing could fiicilitate to the debtor, the obtaining bail for the limits, more than the conferring on the latter the power to take and return the debtor to close confinement, whenever their vigilance should discover, or the conduct of the debtor, prove that his intention was fraudulent, and his design was to ab- scond. So long as a debtor continues on the limits, there is nothing to indicate any bad intention on his part, and there is little or no probability that his bail would surrender him ; and if the legislature really intended that the bail should have the power of taking their principal for the purpose of surrender, no longer than he quietly remained on the limits, I certainly think that they intended to confer but a very small benefit. This, however, is not my opinion. I think the legislature extended their views much farther, and that they intended to allow the bail for the limits the right of taking and surrendering their principal, if they found him within or without the limits, at any time before the creditor took an assign- ment of the bail bond, or brought an action against the sheriff for an escape. The principal objection to the equitable construction, which I give to the statutes in question, is this— that the bond is a con- tract, and the condition of the obligation being once broken, the creditor has an absolute right to an assignment of it from the .sheriff, at anv time after i^ii: i-Mi. 'U HILARY TERM, 10 OBO. IV., 1829. 25 the infraction of the contract, and that the sheriff would be liable to an action for refusing to execute the assignment. Now it appears to me, the very words of the statute last enacted, contain a suflScient answer to this objection, without resorting to the aid of any equitable intendment, on the part of the law makers. The expressions are to this effect : " that it shall and may be lawful for the bail to surrender their principal into the hands of the sheriff, who is directed to give up the bail bond upon such surren- der." In my opinion it would be difficult to find words more general and extensive, in their ordinary acceptation, than these are ; and I think the legisla- ture contemplated 'hat all courts of law would give a liberal construction to a remedial act, conformably to the rules of the common law. The best construc- tion of a statute is, to construe it as near the rule and reason of the common law as may be, and by the course which that observes in cases of the same nature.— 2 Inst. 148, 301. There is great similarity between the liability of the sheriff and that of the bail for the limits j while the prisoner remains in close confinement, he is there at the risk of the sheriff— while he is on the limits, he is there at the risk of the bail. If the sheriff allow the debtor to be on the limits without bail, then the situation of the bail is exactly like that of the sheriff. If the debtor, in such a case, escape from the limits without the knowledge and against the will of the sheriff, and voluntarily return to the limits on the same day, and the sheriff; being informed of the fact, should place the debtor in close confinement, before an action were brought for the escape, I think the sheriff would not be liable. In the present case, the first ^ VOL. I. 26 HILARY TERM, 10 GEO. IV., 1829. plea alleged that the prisoner left the limits without the knowledge and against the will of the defendants (his bail,) and voluntarily returned on the same day' and before any assignment of the bond, took and surrendered the debtor to the sheriff, who received him m custody in full satisfaction and discharge of he obligation It is alleged, however, that the con- tract was broken, and therefore the surrender was inoperative under the statute. My answer .o this objection IS, that the words of the statute are suiB- ciently comprehensive to give the bail, and the legislature intended to give them, the full right of surrendering their principal, so long as the bond is not assigned and the sheriff cannot be injured The sheriff cannot kntow that the plaintiff will elect to take an assignment of the bond a^d discharge him until the phintiff require the assignment, according to the words of the first statute ; and ulitil this bf nZ:,"t"r "r""" by accepting a surrender o the debtor from the bail. The prisoner is again priced m he custody of the sheriff, to answcr'the exigency of the writ upon which he was first arrest- ed : the subsequent liability of the sheriff remains good to the plaintiff, and the things resume thelmo position which they occupied before the debto oT tamed bail for the limits. It may be sa^, howevt that there is a difference in the legal principles whTch govern the twocases I have just now put-that rhen a prisoner escapes from the sheriff, the law gives an action to the creditor, on the ground that there Ins been a breach of duty; when a debtor, who ha b n escapes rom the limits, the law give; an ac Li ^: breach Of contract. For my part, I discover no e en. tial difference between such a breach of duty and such HILARY TERM, 10 GEO. IV., 1829. 27 a breach of contract ; the form of actiou, it is true could not be alike in both cases, but the h-gal effect must be precisely the same to all parties concerned and the statutes relating to gaol limits, if construed accordmg to the common law, would operate as favourably to the bail, in the one case, as the com- mon Jaw does to the sheriff in the other. Whether .the plamtiflF elect to sue the sheriff for the recovery of his debt and costs, or whether he elect to sue the bail for the same purpose, the action in either case IS substantially the same, and intended to produce similar effects. I have thus endeavoured to shew that the statuses protect the bail for the limits, to as great an extent as the law does the sheriff, and upon the sane principles of justice and equity: and farther, that it protects them for the benefit and relief of prisoners confined for debt, who might find It extremely difficult, and perhaps impracticable to obtain bail without such protection. I will now ex- amine whether the bail for the limits have not this right from their analogy to other bail. In civil ac- tions there are three kinds of bail -to the sheriff— to the action-and bail in error. The first and last of these descriptions of bail have no right to take their principal into custody, or to surrender him in discharge of themselves, but. like mainpernors at the common law, they can do nothing, but are barelv and unconditionally sureties for their principal. Like sureties for the performance of any other act* they become liable when the condition of their obli^ gation is broken, and are entitled to no more favour by the common or statute law, than other obligees' with one exception— when the proceedings are by original writ, the bail to the sheriff are not liable to 28 HILARY TERM, 10 GEO. IV., 1829. be sued upon their bond till the fourth day, inclusive, after the return of the writ.— 4 D. & R. 160. Speelai bail, or bail to the action, may, in some respects, be compared to bail for limits. Both are equally responsible for the safe keeping of the debtor— both have the right of surrendering their principal in dis- charge of themselves, and where either kind exists, the plaintiff necessarily has the choice of two reme- dies for the recovery of his debt, and, in my opinion, is equally bound to take some step declaratory of that choice, before either description of bail become liable to him for the payment of the debt. Special bail undertake by recognizance, which is a high spe- cies of contract, that if the defendant be condemned in the action, he shall satisfy the costs and condem- nation money, or render himself a prisoner to the sheriff, or that they will do it for him— when the plaintiff recovers final judgment for the debt and costs, the defendant is then condemned in the action, and according to the plain words of the contract^ they must be liable, if the defendant should neglect to pay the amount of the judgment, or to render himself a prisoner to the sheriff within a reasonable time, that is, as soon as the existing circumstances of the case would fairly allow. The law, however is clearly otherwise. The plaintiff has his election of two remedies: he may take out process against the lands or goods of the defendant, or he ma" have the body of his debtor as a security for the debt. If he wish to make the bail liable, he must sue out a ca. sa. against the principal, and this is the only means by which he can effect his purpose. The bail are always at liberty to surrender their principal, in discharge of themselves, till the plaintiff takes this HILARY TERM, 10 GEO. IV., 1820. 29 .step. Years may pass without lessening the riglit of this surrender ; it remains good till the writ of ca. sa. issues, and if the principal should die, before the plaintiff takes out the writ, the bail may plead the occurrence, in discharge of the recognizance. An examination of the laws relating to special bail, clearly evinces that they have the right of surren- der, till the plaintiff takes some step, indicative of his ultimate determination to sue the bail upon their undertaking, by recognizance, it appears to me that the provincial statute, which I last cited, gives the bail for the limits a similar right of surrender, till the plaintiff takes some step, equally conclusive of his determination to sue them, or till he actually sues the sheriff, when he is liable for an escape. The taking an assignment of a bail bond is a proceeding which as definitely proves his intention, in the latter case, as the suing out a ca. sa. would in the former, and there is no other step which he could possibly take that would be capable of conveying greater certainty. The legislature, in my opinion, intended to protect bail to an extent commensurate with that which is conceded by the common law to special bail ; because, as I have already stated, they have made their liability and power of relief very analo- gous, and it is not probable they designed to restrict the exercise of that power to such a degree as would almost destroy it. I therefore think, in a case cir- cumstanced like the present, the penalty of the bond is not forfeited to the plaintiff, till he require and obtain from the sheriff an assignment — and that a surrender of the principal by the bail, before such event, amounts, in operation of law, to a perform- ance of the condition, and may be pleaded in bar of IIRii: 30 HILARY TERM, 10 GEO. IV., 1829. Iliii t'M I \ an ac ion by the creditors on the bond suggesting a breach of the condition before such as^ntae^it This position, I am perfectly aware, is open to ob- jection. It may be said that the rules of the com- mon law, which govern the proceedings on bonds or her specialties, ar(> ditierent from those which ap- ply to an action on a i-ecognizance of bail ; that the jurisdiction of the courts of law, in the latter in- stance, IS founded on their inherent authority to take care that no imi)roper use is made of their records 5 but in the former instance, their jurisdic- lon rests on the strict rules of the common law • that those rules admit of no defence, short of the performance of the condition of the obligation, or the release of the penalty, by some instrument, hiif ^TZ^' l'^'^^ ^'^^ ^^"^'"S as the bond Itself. Admitting the force and correctness of such objections, I think the present case is wholly ex- empted from their operation. The legislature bv virtue of their amending statute, as I think have made the surrender of the debtor to operate as a complete performance of the contract, either before or after its infraction, at any time before the bail are fixed with the debt, in the manner before stated. If this be the effect of the statute, then I think, that the legal consequence is, that the defendant may plead the fact, in bar of any action brought on the bond. For the legislature to allow a specific act to have the eff"ect of performance of the condition of an obligation, even after it is broken, is, by no means anomalous. Many instances of the kind mi-ht ner' haps, be produced, but I shall mention o°nly one HILARY TERM, 10 GEO. IV., 1829. 31 which I think sufficient to shew that th.. rigidity of the rules of pleading has been relaxed, and the principles of the common law have been set aside by the legislature in England for the purpose of arriving at the justice and equity of a particular case By the common law, a bond given in a penalty conditioned for the payment of a less sum at a stipulated period, would become absolutely forfeited if the money were not paid on the day and a plea of payment after the day would not be available. The statute, 4 Ann, ch. 16, sec 12 gives a remedy in thfs case, and, in substance' enacts that if the debt shall have b;en paid S any action ,s brought on the obligation, although It was forfeited by the nonpayment of the money n bar of the action, by virtue of the enactmen contained m the statute. Solvit post diem was no plea before this statute, but the act makes it a good plea now. I have already expressed my opinion that the tatutes rela ive to bail for the limits, were introduced for the so e benefit and relief of debtors confined gaol, but I cannot think the legislature design d o make any alteration in the remedies which fhelaw gave the creditor. Those remedies were left precisely where the legislature found them. The conditL of the creditor was not to bo worse, but it was not intend d to be made better by increasing his power of com pehng payment. The construction which I give the lights of the creditor. His legal remedy against the property and the body of his debtor remains unhn 32 HILARY TERM, 10 GEO. IV., 1829. I paired, while the power of proceeding against the bail for the limits is equitably restrained to those bounds which the law prescribes, in cases similar in their nature and alike in their circumstances. The foregoing remarks on the liability of bail for the limits are intended only for a case where the bail are sued by the original plaintiflF, on an assign- ment of the security by the sheriff ; if the actions were brought by the sheriff himself— a rule some- what different in practice, though not in principle, must necessarily prevail according to the different circumstances in which the parties would be placed. Upon as full a qonsideration as I have been able to give the present case, I am of opinion the first plea is sustainable, and that the defendant is entitled to judgment on that plea. With respect to the second plea, I am of a different opinion ; I think it is not good. It contains no averment that the defendant surrendered his principal to the sheriff, conformably to the provisions of the statute. Nothing but a sur- render before the assignment of *the bond, in the case now before the court, could have the effect in my opinion, of satisfying the condition of the obli- gation. Macaulay, J.— The first consideration is, how stood the law upon the passing of these acts ? A ca. sa. could issue, as in England, and the sheriff was bound to observe the same duties, and subject to the same liabilities, as in England. By the com- mon law, the sheriff and every gaoler ought to keep persons in execution in saiva custodia, and if he permit an escape, an action lies. — 3 Co. 44 j 2 Wils. mLABY TERM, 10 GEO. IV., 1829. 33 294 ; 2 Bl, 1048. At common law, case was the only remedy against a sheriff for an escape in exe- cution on final process, and that form of action must still be adopted, when the escape is before final pro- cess. But the statute, Westm. 2, (13 Edw. 1 c 11,) and 1 Ric. 2, c. 12, gives the action of debt agamst the sheriff or gaoler to recover the sum for which a prisoner is charged in execution. They do not deprive the party of his action on the case — Cro. Jac. 288 ; 1 Saund. 38, n. 2. Debt is, how- ever, generally preferable, as entitling the plaintiff to his whole debt.-2 T. R. 129. In case the dam- ages are m the discretion of the jury.— 2 Chit. Rep. 464. To a voluntary escape, re-captfon or a volun- tary return is no plea. To a negligent escape, re- caption on fresh suit, or a voluntary return before action, (but not after,) is a good bar.-— 2 Co. 62 • 2 Str. 908 ; 1 Saund. 36, n. 1. A voluntary return is held tantamount to a caption on fresh suit —2 T R. 129 ; 11 Mod. 341. The obligation of the she- nff arises out of common law liability ; the common law remedy was in case for the tort, and re-caption is a good plea, (I suppose,) as being a full answer to all damages ; for if the sheriff, having negligently suffered an escape, promptly pursues and re-takes before action, and has the defendant in custody when action brought, it would seem to negative any dam- age to the plaintiff It is true a re-caption may be pleaded in debt, indeed it formerly could be given in evidence, under nil debet ; but this seems an ex- tension of the common law defence to the extended remedy. This defence must now be pleaded and sworn to.-8 & 9 W. III., c. 27, s. 6, and, I should think, a plea of voluntary return must bo verified ' VOL. I. 34 HILARY TEEM, 10 GEO. IV., 1829. in the same way, when urged as a defence.— 4 Star Ev. 1349 ; Imp. SheriflF, 160-1. No special plea is to be received without affidavit that the escape was without the consent, privity, or knowledge of the sheriff. After a voluntary escape he cannot re-take and IS therefore liable. ' It is obvious the law of escape, as between the creditor and the sheriff, rests upon its own princi- ples, and is comjjosed of common law and statutory provisions. A duty is, by law, cast upon the sheriff • an obligation is, by the bail, voluntarily assumed • . between which a' very solid distinction will be found to prevail— 6 T. R. 754 ; Alleyn, 27 ; 3 B. & P. 420 ; 1 T. R. 418. The case in 2 T. R. 126 was an action of debt on the statutes, brought against the marshal, and, of course, he being charged by these statutes, which extended the common law remedy had an obvious right of defending himself, as in other cases of escape. The gist of the action was the es- cape ; the form of action was extended by the sta- tute ; an escape in a sheriff is a breach of duty • a tort, not a breach of contract. Upon an arrest being made, the law imposes it on the sheriff to keep his prisoner safely. If he carelessly suffer him to go at large, the plaintiff has an action, against which a re-caption before suit, though not after, is an an- swer ; but if the fugitive die before action, the she- riff is fixed. In the present case it is a specialty contract. In one case, a tort— in the other an agreement ; and to be governed by Cie rules of law, applicable to the respective actions. The case in 2 T. R. 126, is in debt, founded on a tortious act, bv yirtuG of the statute, and k not in point, unless to HILARY TERM, 10 GEO. IV., 1829. 35 prove that the prisoner is in the sheriff's custody though on the limits, and that he is responsible in the event of escape. Had tlie sheriff, in that case, refused to accept his voluntary surrender, and sued the sureties, and they had pleaded the return as a bar, the cases would have been more similar and we should have known the nature and terms of their engagement. An escape against the bail of the sheriff IS a tortious act of the prisoner, for which an action lies by the sheriff; he is not obliged to pur- sue and re-take him, nor is he compellable to accept a voluntary surrender, but may at once sue the party, by reason of his liability to the creditor — Cro. Eliz. 237, 53, 124, 264 ; Godbolt, 120 ; Filzh. N B. 130 h. So also, after a voluntary escape and a voluntary return, though the sheriff cannot detain the defendant, still the plaintiff may admit him in custody, so as to charge the then or subsequent sheriff-1 Vent. 269, 2 Lev. 109, 132-and can, if at large, obtain an escape warrant. He is not obliged to resort to the officer. It is said, also, that It the sheriff permit a voluntary escape, the subsequent assent of the plaintiff is not a bar to the action. I mention this to shew iUi oxi ex post facto defence, when admissible, rests upon pre-established rules'. It appears to me, if analogies are to be resorted to, the present case must be determined by a consider- ation of the law of bail in other cases, rather than by the law of escapes respecting sheriffs. The undertaking of bail is a contract, and the contract here was not that L. A. should make no escape, but that " he should 7wt so or rmove hnjn^^ the limits " of the gaol. The breach is, that he did 36 HILARY TERM, 10 GEO. IV., 1829. go, remove, withdraw, and depart. The plea ad- mits a departure and seeks to avoid the penalty i)y avoiding the breach. A departure is doubtless a literal breach of the condition, and if so, the penalty was incurred ; but it is contended that the condition was saved by the subsequent render. Such a de- fence rests, I fear, rather upon equitable than legal grounds. If we look to cases of bail bonds, and bail to the action, we find that nothing can be pleaded to the bond or recognizance, after action, that does not strike at the root of the contract. A bond may be avoided upon some grounds, so also a recognizance : but the pleas will be found to anticipate the possibi- lity, or deny the fact of any breach. After breach mthe case of bonds, the court is enabled to grant summary relief by stat. 4 & 5 Anne, c. 10. In case of recognizance, they exercise a similar control over their own record.— 5 B. & A. 192. To an ac- tion on the bail bond, defendant may plead compe- rmtaddiem; but if the appearance is not entered of record the bond is forfeited.— Cro. Eliz. 460. Or, that the bond was taken for ease and favour. Or' if void on the face of it, they may demur ; or they may plead no process against the principal ; or no affidavit, shewing the arrest illegal and the bond void, as under a species of duress ; or that the as- signment is not stamped. But matters of defence in equity, or merely founded on the indulgence of the court, are not pleadable ; as that the bond was given to plaintiff as trustee for his officer, to whom defendant had paid debt and costs.— 7 Ea. 147 Satisfaction after breach cannot be pleaded —Cro |]liz. 46 ; 6 Rep. 43 ; 2 Wils. 86. If good, it should be pleaded to the condition, not to the bond.— Yel HILARY TERM, 10 GEO. IV., 1829. 3V 192, Cro. Jac. 99, 254. Before the statute 4 Anne c U— solvit post dwn could not be pleaded to a bond. The undertaking of special bail is, that defendant If condemned, shall satisfy the debt, or render him- self, &c. These bail are discharged, by death of their principal, before the return of a ca. 5a. ; but not, if after the writ is returnable.— 6 T. r'284 After judgment, plaintiff may elect to proceed against the body or effects of defendant, and. owing to this election, it has become a settled rule that before proceedings against bail, a ca. sa. must be sued out and returned non est inv. The render ought to be when plaintiff signifies by ca. sa. that he will have the body A render can never be. pleaded after the return of a ca. sa.^l L. Raym. 156. Nor would the court formerly accept such render.— 1 Cro Eliz 738. Indulgence was gradually extended by the court exercising a control over the record.— 10 Mod 267. The forfeiture of the recognizance takes place by not rendering before the return of a ca. sa. issued against the principal ; when once forfeited, it will be found that nothing can be pleaded in bar, predicated upon the breach. Bankruptcy of principal and cer- tificate is no plea, though held an equitable defence. ■~2 B. k P. 45. The courts have enlarged the time for the render of principal. But a render after the return of ca. sa. is no plea in bar. Acceptino- a cognovit will, under some circumstances, discharrre the bail. Yet such matter is not pleaded, but sub- ject of motion.— 4 Taunt. 465 ; 5 Taunt 319 • 7 Taunt. 126 ; 15 Ea. 616 ; 4 B. & A. 91. Bail' in error cannot render, their contract being absolute • ,and, upon the same principle, the defendant here' being liable under the bond, upon the departure of 38 HILARY TERM, 10 GEO. IV,, 1829. the debtor, cannot render afterwards in discharge of the bond ; the right of render is gone. I think the present defendants had a righ: of surrender, so long as the condition of the bond was not infringed ; but, when once broken, (as ^t was by the departure admitted,) the right no longer existed. The act upon render requires the bond to be given up, that the bail may be wholly discharged therefrom, V e., from the bond— not from the condition or conse- quences of a breach : it contemplates no present forfeiture, as is shewn by what follows, that the sheriff may renew the security as if the debtor had not enjoyed the limits ; but, if rendered after an escape, It is not probable another enlargement would be allowed. Upon breach of the condition, the she- riff is bound to assign the bond to plaintiff ; and I do not see that the sheriff can, by a subsequent acceptance of the original defendant, affect the riglits of the plaintiff, however he might his own ; besides the detention of defendant may be perfectiy consist- ent with a subsequent assignment. The plaintiff having a right to resort to the she- riff, in his common law liability, he might desire to be in a position to plead a re-caption, or a volun- tary return. Whether, after plamtiff claims an assignment of the bond, the defendant becomes supersedable, may be a question On that I give no opinion, though it might appear that plaintiff had a right to detain defendant and proceed against his bail, as a collateral remedy, till satisfied.— 2 T R 129 ; Skin. 582. The sheriff may accept ii volun- tary render of defendant, in discharge of the she- riff's bail, before the return of the process, but not after; not after breach of the condition to appear 1 -i' HILARY TERM, 10 GEO. IV., 1829, 39 ~1 Ea. 390 ; 10 Ea. 100. It is not stated in the pica that the departure was with or without the con- sent of the sheriff; nor does it appear that the ren- der j)leaded was made before plaintiff had notice of the dei)arturo. The sheriff shall not avail himself of his own irregularity. I find no case in point. The one most resembling it is in Com. Rep. 554 • Chambers v. Gambier— debt on bond— condition' to be a true prisoner, without making any escape '; plea, that J. L. did remain a true prisoner, without making any escape ; replication, that on the 13th Jamiary he made an escape ; rejoinder, that he went a little way out of the rules, and being sent for back, immediately returned, with consent of plain- tiff, was received as his prisoner, and so continued ever since. Demurrer,~the rejoinder was held ill as being a departure. Reeves, C. J., said, "If it would have excused the escape, it should have been pleaded at first. This plea, in the matter of it, is no excuse. It is not said he was re-taken on fresh suit ; but he returned, being sent for, without say- mg when, or after what time, or any thing certain." Considering, therefore, the nature of the undertak- ing, the principles that govern the court in the con- struction of specialties, and those which seem to have regulated the decisions in cases of bail especi- ally, I am constrained to hold that the present de- fence is not a good plea in bar of the action on the bond, however desirable I may deem it that the court should possess the power of granting equitable relief under the facts disclosed, if true. Per cwr.— Judgment in lavour of the demurrer— Sherwood, J., dissenting. 40 HILARY TERM, 10 GEO. IV., 1829. Beard v. Ore. Qumr6.-.Vndn what circumstances the court will allow the costs to a defendant, under the provincial statute 48 Geo. 3, o 4 This was a case argued last term, but as the court were divided, it stood over till now for further con- sideration. Ridout obtained a rule nisi under the provincial act 48 Geo. 3, c. 4, that the taxed costs of the defendant in this cause should be allowed and set off against the sum recovered by the plaintiff The facts were :— defendant was arrested for £60 At nisiprius a verdict was tu::en for the plaintiff by consent, for £50, subject to the award of arbi- trators, to whom that verdict and all matters in difference between the parties was submitted, with power to call for books, papers, &c., on either side Affidavits were put in on behalf of defendant, statin^r that plaintiff arrested hira without probable cau^e" as plaintiff well knew that the said demand had been considerably reduced by the work and labour of the defendant, and otherwise ; that a day or two before the arrest defendant called on plaintiff for a settle- ment of accounts, urging, as a reason, that he was about to go to Cavan for a time. That Joshua Beard plamtiff's son, in presence of plaintiff, said that it made no difference ; that the accounts could not then be attended to, or words to that effect That subsequent to the arrest, he paid plaintiff £lo' included in the above award, upon an understanding that the plaintiff should withdraw the action pay costs, and settle amicably. That plaintiff, instead of so doing, declared that if but Is. was coming to him he would make defendant pay costs. Ou the part of the plaintiff an affidavit was produced, stating HILARY TERM, 10 GEO. IV., 1829. 41 le costs to a that the defendant had not performed the agreement under which he claimed to set off, and tliat h'e (plain- tiff) had been put to a considerable expense in get- ting others to finish what defendant had begun. Also, that defendant would hot produce a book, ' containing entries of their transactions, to the Arbi- trators, when required by them. The awitrd was fof£37 10s. 8d. Draper shewed cause.— The courts have always laid great stress on the circumstance of parties goino- to arbitration, and when no verdict has been taken that circumstance has always been considered an answer to this application. Particular attention has also been paid to the fact (when such has been the case) of the power of examining the parties them- selves, and of sending for books and papers.— 1 B & B. 278 ; 1 Moore, 92 ; 3 Moore, 590, 605 • 3 B & C. 494 ; 5 D. A R. 383. In this case' a// mat/eu .m difference were submitted, besides the verdict The court will presume that there were such other matters, or why was any mention of Ihem introdueed " in the submission. In one of the cases cited it was said that the examination of the defendatit gate him the opportunity of reducing the plaintiff's demand to a trifle ; here he withheld the evidence of his books, when those of the plaintiff wei-e produced Non constat, bat' those books wbtild have rfedtifced his set-off, or proved, by aekrtowledgment; a lareer sum due. The cases in 6 B.'& A. 5l3, an,f I'B' & 0. 91, will probably be cited on the other side ' '■ It is sufficient to reply to them, that in eaeh of those cases the plaintiff had expressly agreed to ta'-e a smaller sum than that for which he hMd' the d'efLd ant to bail. In those cases, too, the defendant could a VOL. I.' "^1 = 42 HILARY TERM, 10 OEO. IV., 1829. not have been held to bail for the sum which was actually recovered. The Attorney-General and Ridout, contra. — ^The court will consider the introduction of the words, " all matters in difference," into the submission, as mere surplusage. It is not shewn that any thing but what regarded the verdict was submitted or determined, and, in the absence of such shewing, the court will presume against it. The cases in 1 B. & C. 91 ; 2 Smith, 261 ; and 5 B. & A. 513, are in point. In the last case, the court said that where there are mutual accounts, the plaintiff should only arrest for the balance. Here he has arrested for the whole, and has recovered little more than half of what he held defendant to bail for. Surely this is without probable cause, and if so, the defendant's application should be granted. The Chief Justice having been retained when at the bar, gave no opinion. Sherwood, J. — I think there are sufficient grounds for this application. It is decided that if a verdict be taken, subject to award, the sum awarded is to be considered as recovered in the action ; and I do not think the wording of this particular submission alters the case. As to the want of probable cause, I think that is to be inferred fairly from the fact that the plaintiff held the defendant to bail for £60, and recovered little more than £30. \r . _ . . J. — lu this case the nature of the dealing between the parties, or of the testimony on either side is not disclosed. It is urged, on behalf HILARY TERM, 10 GEO. IV., 1829. 4d of the plaintiff, that it was a general reference of all disputes. But it is not shewn that any subject mat- ter was considered that might not have been dis- cussed at nisi prim. The plaintiff's counsel also objects that this application cannot be entertained after a reference ; but where there is a verdict, I think it may ; at least where the case only is re- ferred. Nor do I see that the arrest being on the affidavit of plaintiff 's agent, can make any difference, if unwarranted. The learned judge then went into an examination of the following cases :— 2 Smith, 261 ; 1 Moore, 92 ; 1 B. & B. 278 ; 6 B. & A. 613. This appears the strongest ease in favour of the defendant. It was obvious that the plaintiff there arrested for as much again as he pretended to be entitled to. He made no allowance for a previously admitted set-off. But in fhe case in judgment, plain- tiff says hecredi;ou all that was paid ; that he knew not the extex.. jf defendant's unliquidated claims, but intended to dispute the whole, on the ground of breach of contract. 6 B. & A. 661 ; 10 Ea. 525 ; 13 Ea. 90 ; 2 N. R. 76 ; 1 Smith, 428 ; 1 Taunt. 60 ; 1 B. & C. 91 ; 1 Smith, 521 ; 2 Smith, 667 ; 1 B. k B. 66 ; 2 Marsh, 532 ; 2 D. & R. 266 ; 4 D. & R. 186 ; 6 Price, 126 ; 5 Price, 1 ; 2 Chit. Rep! 147 ; 7 D. & R. 369 ; 1 Marsh, 21 ; 5 D. &R. 383 ; 6 B. & C. 193 — which last case is quite against the defendant's motion. Upon a full consideration of the cases and matters submitted on the present occasion, I cannot consent to make the rule absolute, but think it should be discharged, though without costs, as not being made without probable cause. The court being divided, Ridmu took nothing by his motion, (a) (o) See McGregor t. Soott, Tayi. U. C. Rep. 66 ; Powell t. Oott, 1 U. C. Q. B. 418; MoMicking t. Spe&oer, Uil. Term. 6 Vio., per MeLem, J. 44 HILARY TERM, 10 GEO. IV., 1829. RoBiNET V. Lewis. , ^"i'lhTJ^l "pHcatioa to a plea of <,««,«<, need not lay any venue as »..„ i T "* ^i'*' '^**'''' **»« allegiance, nor state of what Dlrenta* Z 4'/i«i n«,inp.y be pleaded in bar. This was an action of dower. Plea in bar, qc(io non, because demandant is an alien, born in foreign parts, and out of the allegiance of our lord, the late king, and, within the allegiance of a foreign state to wit. the United States of America, and is not made a subject of our lord the king, by naturalization, denization, or otherwise, esl hoc par. est ver. Replii catioq,-^^mMi non, because she is a natural born subject of our l6rd the king, born in the allegiance of our late lord, the then king • to wit, in the then province of Pennsylvania, and not an alien born in foreign parts, or within the allegiance of a foreign State, in manner and form as is in ithe plea alleged —conclusion to the country. Special demurrer-^ assigning for causes, that th^ place of birth was not pleaded with an avetment of time, nor of > of Anne, Com di? Maud. A. B. Bull. K J 199. The motion for a maiidamus io inspect is . :=vaumed only where an action IS pending.—Barns, 236 ; 3 Wlls. 398 • 5 Mod 386. These cases are, however, shaken bv the following .—1 T. R. 689 ; 3 T. R. 303 ; but th'e same doctrine is established in 8 T. R. 690 • and it IS decided to be by no means a matter of course to grant a mandamus.~^iv. 646, 717, 1005 1203 When granted, it is confined to an inspection of matters relative to the point in issue.— Str V/o^ 1242;3T.R. 579;7t'r. 746;10Ea.235i M. & S. 162 J 2 Chit. Rep. 288. The right of 'in- specting public documents is well treated in 1 Phill Ey. 406. If we refer to the cases and circumstances attending them, no one in point will be found and in applying the principles they establish, it is open too much to question whether the present applica- tion is at all sustainable. Mr. Nolan, the editor of Strange's Reports, (2 Str. 1223,) says he can find no instance of a 7nandamm to inspect books of this kind and that it did not seem settled how far any cor^ porators could apply for a general inspection &c 1 believe no case can be found down to the present period. On the contrary, the authorities would rather seem to restrict than extend the privilege desired. A distinction prevails between public corporations, having the government of towns &c VOL. I. 68 HILARY TERM, 10 GEO. IV., 1829. or constituted for purely public purposes, and trad- ing companies, such as banks, &c.— 5 B. & A. 399 ; 2 B. & A. 620. The case last cited would seem to deny the right of mandamus altogether. The facts of that case were far stronger than the present. The applicant had an interest at stake, and was actually seeking a private benefit— his share of profit. Here nothing is sought, but the right claimed without any definite object. When parties are litigating claims, the power of the court to interfere is quite a diflferent question, and for obvious reasons. The constitution of the bank is contained in the act of incorporation already mentipned. The directors are the repre- sentatives of the whole body. They are required to declare half-yearly dividends ; but, it seems, cannot be compelled to do so by mandamus. They are re- quired to keep stock books ; but where is^t found that they can be compelled to shew them to any or all of the stockholders, at any or all times ? They are to make rules touching the stock, property, effects, officers, clerks, servants, and all other such matters as appertain to the business of a bank. Now, had they made a rule that the stock book should not be open to inspection, except at the time of election, would it be held to be an unreasonable or illegal by-law ? i am not prepared to say it would. To many purposes the corporation is a partnership. A great object in a corporate charter is, that individual partners are not personally responsible ; but if an act of parliament authorised a trading company of a thousand members, liable to all the usual partnership responsibilities, I do not see that a member of that coroi ,iny might not as well apply for redress, by mandamus, if aggrieved or abridged in his right, as HILART TERM, 10 GEO. IV., 1829. 59 in the present instance. I cannot admit that it is because a public body is a body corporate, that the courts assume the right to interfere ; but because of their public character. Now, as between thr stock- holders individually and the directors, I question whether the bank is to be regarded as more than a private trading company. The interests of the whole are intrusted to directors of their choice, and those who wish to become interested in the corpo- ration, must do so, relying upon their management, and that alone, unless where private rights are litigated in courts of law; when, for the ends of justice in judicial proceedmgs, the courts may inter- fere so far as the particular case may require. The directors represent the whole, and they have access to all books, &c., and the control of all matters. If a majority of the directors refused access to the minority, and the latter sought the aid of the court, it would be a much stronger appeal. It is not necessary, at present, to say whether a case might not arise, that would justify the interference of the court by mandamus, as between the stockholders and board of directors ; but I by no means find authority that it would. It is not now incumbent on the court to decide this, for however a case might arise, calling for the high prerogative writ, I am quite satisfied it ought not to issue upon the present application. Pe)- Cwmm.— Rule nisi refused. 60 HILAKl TERM, 10 GEO. IV., 1880. Winchester v. Cornell. This was an action of covenant. The defendant had leased certain premises to the plaintiff, and con- tracted to give possession on a certain day subse- quent to the date of the agreement. The breach was the non-delivery of a part of the premises leased Plea nonest factum. At the trial, at the last assizes for the District of Niagara, the subscribing witness was called to prove the execution of the agreement. The defendant was illiterate, and could not write The witness could not positively state that he saw the defendant make his mark, or deliver the deed • but, to the best of his knowledge and belief, he saw both. Two witnesses, daughters of the defendant were called on his side, who swore they were pre- sent at the same time, and did not see the defendant execute the agreement. The Chief Justice who tried the cause, charged the jury " that it was proved the plaintiff entered into part of the demised pre- mises, under agreement." The jury found for the plaintiff, and last term a new trial was mox.d for principally relying on the ground that there was no evidence of the execution of the agreement. On r.eading his notes, The Chief Justice remarked that he did not find the fact, which he had stated to the jury as having been proved, with regard to the plaintiff's taking possession, in his minutes of the evidence, and time was given till this term, for the plaintiff to file affi- davits, stating that such evidence had been given And now two affidavits were produced, both swear- ing to the fact itself, but neither stating it had been HILARY TERM, 10 GEO. IV., 1880. 61 proved on the tnal. Under these circnmstances, the Chie Justice, being satisfied that a new tria would not alter the event, was of opinion that le rule mst should be discharged. Sherwood. J.. diflFered-thinking that when anv reasonable doubt existed, as to the verdict be ng the same, in case the fact had not been proved as stetpd Macaulat. J., having been concerned in the cause, when at the bar. gave no opinion. tJntVT ^''"^ ^''''^'^' ^^' ^^f^^^^^nt took no. thing by his motion. Ferrib v. Rykman. Assumpsit, brought to recover the amount of a promissory note, drawn by the defendant T / :^' "'zi' rr^''' ^'""V ft:: ireai. ihe decaration was in *».« ^« / and the defendant demurrld s e airSnT' cause the want of an averment ihli',^^ ^ '"'' presented for payment atT ^^1 ";, ™'; J- It was made payable. ^ ^ ^^*^^® Ridout, in support of tlu. (lemm-r"- ». i , 65i HILARY TEBM, 10 GEO. IV., 1880. principle of this demurrer as good law ; and, al- though, in 2 Camp., lord Elknborough denies' the necessity of such an averment, yet that opinion is overruled in 3 Camp. 247. He contended that the case of Rowe v. Young, 2 B. & B., applied in prin- ciple to this, and was decisive. He also cited 2 Taunt. 61 ; 5 Taunt. 32. The Solicitor-General, contra.—This case is clearly distmguishable from that of Rowe v. Young. That was an action against the acceptor, who had accepted payable at a particular place. He had a right to narrow his undertaking, and it is in the option of the holder to accept or refuse this qualified accept- ance. But this action is by the payee against the drawer of a promissory note ; he, surely, is every where liable. The introduction of the words 'on demand," into a promissory note, does not make a demand a necessary preliminary to bringing an action. The bringing a suit is, according to express decision, a sufficient demand. So here the introduc- tion of a particular place is only a notice that the party will be prepared at that place, but ought not to narrow his liability, which is general. The Chief Justice.— In consequence of the deci- sion of the House of Lords, in the case of Rowe v. Young, an act of parliament was assed, w"th refer- ence to acceptances payable at a particular place • but I am satisfied that act does not, and was not intended to apply to promissory notes. Then, as to them, the decisions are certainly contradictory ; but I think the weight of author! lies Is in favour of such an averment, and that on the trial it must be proved and, al- jaies the •pinion is that the I in prin- cited 2 !S clearly ?. That iccepted, right to option of accept- linst the is every rds '-on ; make a ging an express atrodue- that the light not he deci- ^owe V. h refer- place ; was not n, as to fy ; but of such proved. HILARY TERM, 10 GEO. IV., 1880, Shehwood, J.— Concurred. 4d Macaulay, J., having been concerned in the cause, gave no opinion. Per C«m»i.--Jud-nient for defendant. Johnson v. Duranj. ^mall moved to revive a rule nisi, which had been obtained in this cause last term, and which had apsed, on affidavits stating that the rule, which had to be served in the Gore District, has been duly served and sent to York , but was by some accident misiaid, and did not reach until after term He argued it on the ground that he was too late to ob- tain a new rule, and that if this motion were refused the party would be without remedy. The court, under the circumstances, granted the Hale et al. v. Mattheson. A mis-recital in a aubmlssion wiU not titiate an award. The Sohcitor-General, last term, obtained a rule ^^ to set aside the nonsuit granted in this cause The action was brought on an award, with the com ' mon counts. The submission recited in the del' ration was between the plaintiff in that suit and three defendants; but in the award, the n^m^ nfone ut the defendants was omitted. For this variance bhcrwood, J., nonsuited the plaintiff. 64 HILARY TERM, 10 GEO. IV., 1P30. Jonas Jones now shewed cause. The declaration states an award between the plaintiff and three de- fendants ; and to supfii;, this thej- give in evidence an award between the piaintiflF and one defendant- This is a fatal variance, it is net tlif instrument declared on, and consequently tbc iionsuit is r'glit. The Solicitor-General, contra.^ln the award a dmunvi relerence is made to the identical submis- &'o'i -. it is made on the authority given by that sub- .nudsion, and is made in the same suit, and refers also to the rule annexed, which i;^ a rule in that same action. The recital of the nar?ies was wholly unnecessary. The true question is, was there not an award made, such as described in the declaration, and grounded on that very submission, Besides,' the omission of the name of one defendant is not in the body of the award itself, it is in the recital of the submission, and the reference to the rule annex- ed shews clearly that the award was made in that suit. A mis-recital will not vitiate.— 1 B. & B. 360 A submission mis-recited was judged immaterial in an action on a bond.— 1 B. & P. 40. In an action on a promissory note the plaintiif 's name was Ed- ward, the note was given to Edmond ; this variance was decided to be of no consequence.— 1 6 Ea. 110. The Chief Justice— Two grounds ^f nonsuit were taken at the trial. 1 st. That the arl - i iors had not suflBciput authority. 2nd. T^at (?; ve was a vari- ance The first ground was - properly over- ruieu ac the trial-for the fifth z,mt in the declara- tion sets out an award made by f jc e- bitrator on a submission by ttie parties to him. M to the second HttARY TERM, 10 GEO. IV., 1830. 65 submi88ion-did the arbitrator make this award between the parties to the suit, or between other parties? Looking at the papers as attached to-e- Iher, I cannot say but that the award is made between the Identical parties. The annexed rule is expressly referred to, and that rule is in the cause referred The mis-recital of the submission cannot, in mv opinion vitiate the award, and the variance is there- fore, as I view it, insufficient to warrant the nonsuit. Sherwood, J.— Concurred. Rule absolute. Baker v. Booth DEBT.-The declaration contained two counts • one on a submission, the other on the award The' case was brought before the court last term on a n„7 i7r *? ^\'^py^^^tions to the 2nd, 3rd 8th and 16th pleas but was ultimately decided on the declaration only. It is therefore unnecessary to stote the other questions, as the court did not decide them It was argued last term by Bidwell for the plamtiff, and Bethune for the defendant, and in this term dy The S<^idtor-Oen»-al for the plamtiff, and the ^/ftwwy-Gmwa/ for the defendant. ■"'""'« aJ^'*''%';l"'"*'Lr "'«*^' *"«' 'teting the a^rd,™ follows -That the defendant should p.y VOL. I. HILARY TERM, lO GEO. IV., 1830. 66 I !l' to the plaintiff £149 on the 5th January then next, and that plaintiff should deliver up to defendant a dwelling-house, then in his occupation, on the 5th January then next, in as good repair as it was at the time of the making the award. That the plaintiff should have liberty to harvest a crop, then growing on the land. That all suits should cease, and mu- tual releases be executed. That the objection raised to the declaration, is the want of an averment of the plaintiff's readiness to deliver up the house to the defendant, it being insisted that the delivering of the house is, a concurrent act with the payment of the £149 awarded— to recover which, this action is brought— and that therefore such an averment is necessary. These two acts are not necessarily con- current, neither are they made so by the express terms of the award ; it depends entirely on the will of the parties, whether they should be done at the same time, or whether one should precede the other. The way in which the day is fixed by the arbitra- tors, for the performance of these two acts, shews that they did not intend them to be dependent, one upon the other. They do not say the defendant shall, on a given day, pay £149 and at the same time, or on the same day, the plaintiff shall give up possession ; on the contrary, they give a specific date for the performance of one independent act by the defendant, and a specific date (not referring to the one already given) for the performance of ano- ther independent act by the plaintiff. The manner in which this is done, is equivalent to laying two distinct days. The acts, therefore, are not necessa- rily concurrent ■ but if concurrent, it is only neces- sary to aver performance where the one concurrent HILARY TERM, 10 GEO. IV., 1830. 67 act is the consideration of the other.— 1 Saund, 320, n. 4. Now, neither act, in this case, depends in the slightest degree on the other ; each stands alone, to be performed at all events, not as the consideration by which performance is to bp obtained from the other side. They are like independent covenants, and in principle this is similar to an action of cove- nant. But supposing this to be a consideration ; by examining the award we find that if it is to be thus viewed, there are also other acts which are, with equal reason, to be taken in the same light: the plaintiff is to have liberty to harvest his crop, ac- tions are to cease, releases to be executed. ' The delivery of the house, if a consideration at all, is only a part consideration, and then such an aver- ment is not necessary. For the defendant, it was argued that this is simi- lar to an action on a covenant between the parties, and the established rule of law is, that where anj' two acts are to be performed, one by each party, they are necessarily co ..arrent acts. The award is the agreement of the parties, declared and carried into effect by the arbitrators. That such an aver- ment is necessary, appears clearly by the reasoning in 2 Saund. 351, and the cases there cited ; as to there being other considerations, they do not appear in that pf^rj of the award which the plaintiff has thought fiT ; ) set forth in his declaration. In the replication the plaintiff has set forth the whole award, but the declaration must stand or fall on its own merits— the subsequent pleadings cannot be called in ,o its aid. n HILARY TERM, 10 GEO. IV., 1880. The Chief JusTiOE.~The court think this decla- ration cannot b- r^yc. i.,- ; on a demurrer nothing can be intended ; after a verdict no notice could be . taken of the facts thereby found. The facts pleaded and the manner in which they are pleaded, are what we must determine. The declaration contains two counts, one on the submission, the other on the award. The pleading is not sustainable. In debt on a submission bond, the whole award must be set out, either in the declaration or replication ; here he has only set ou^ part, not the whole, and this is a fatal objectioii. When the whole awarJ ^j set out. It appears that neither count can be supported' There is no averment that the concurrent act was performed, or that the plaintiflf was ready to perform IS part. We entertain no doubt but that these are concurrent ach, and that such an averment is strictlv necessary.-4 T. R 762 ; 8 T. R. 366 ; 1 Ea. 203 ; '^^ ^- ^^^j ^ ^'' '°<^- 320, note c. ; Doug. 691 ; 1 Sa. 112, 171, all uear on the question. For w 'nt of this averment, we think the defendant entitled \o judg-^T , and the declaratioi being bad, it is not neces^-iry to decide npon the objections to the ;ub. sequent pleading. Per Curiam Jnc^ iient for defei dant Phillips v. Redpath and M'Kay. In trespsHe, if the defendant rest bis defence on ac«ng under the Rirf..,, Canal act, he should be prepared to prove that thf act wh^h %« f plained of was regularly done under that sUi^XdnlTZtZ. fhtcanT *"' '"«'-•»♦-'"' '^'^^ •>« -« e-ployedtCcon "truX'if TRESrvss qu. claus.freg. and a count, de bonis HILARY TERM, 10 GEO. IV., 18«0. this decla- 3r nothing 5 could be s pleaded, , are what itaius two 3r on the In debt, ust be set ion ; here d this is a <'^ set out, upported. t act was a perform these are is strictly Ea. 203 ; ?. 691 ; 1 For w .nt ntitled to it is not 1 the oub- : theRideau 'hich ia oom- not reat hia astruotion of de bonis asportatis. Plea, not guilty. The cause was tried before Sherwood, J., at the last assizes for the Johns- town District, when the following facts appeared in evidence : —that the plaintiff had authority from Charles Jones, Esq., the owner of the locus in quo., to erect a frame buildin there : that the agents of the defendants wrote to plaintiff, forbidding him to erect a frame at the place proposed, on the ground that the land in question was required for the Rid- eau Canal : that one of the defendants interfered, to prevent its erection on any part of that land : that the frame was torn by the defendants' servants : iLat defendant Redpath used insulting expressions respecting the plaintiff, stating also that he wanted the place for a friend of his to keep a store on : that the "ame was drawn away and destroyed by Red- pa and that the land in question had never been used, in any way, for the canal. No justification was attempted. The learned judge left it to the jury to find for plaintiff, and to measur q damages according to their opinion of the defendants' mo'vob. If they thought the defendants were actuateu by a view to the public service, or even inadvertenlJ} , not to enlarge upon the damage actually sustained • but if their conduct, under the evidence, was not entitled to such favourable consideration, to exer- cise their discretion. The jury found for the plain- tiff, £100. The Attorney-Gineral nad obtained a rule nisi for a new trial, last term.— 1st. Because a sufficient justification under the Rideau Canal act was in proof, in coKseiiuence of the letter produced to that effect. 2nd. For excessive damages ; and this term, ■f ■II ro HILARY TERM, 10 GEO. IV., 1880. Jonas Jones shewed cause.-The actual damages sustained by the party, does not constitute the so" question 10 a case of this sort. The current of authorities proves the contrary, and that other con ^derations are properly left to the jury to influence a proper discretion as to the damages. The matter as to probable, or even possible damage. Thev were to consider what had been the conduct of the defendants ; and, taking all into consideration these damages are not outrageous. In the case in 2 Wils! 160, imprisonment for a few hours-damages £300 and a new trial refused. In 2 Wils. 206, it is said' It IS dangerous to meddle with the damages in actions for torts." The learned counsel cited also, 2 Wis 252, 405 .- 6 Ea. 256 ; 5 Taunt. 281 : 4 T R 654;3WiIs.62;2Bl.Rep.929.942,.Cowp.230 1 Marsh. 139, as establishing the principle that there was no ground to interfere on account of the damages. ^ The Attorney-General, contra.— There was no evidence to shew that the plaintiff sustained damages beyond the mere value of the frame. The cases cited result from the personal injury and affront • it was not a question of injury to property, which a^ose m them. In those cases there was no criterion as m a case like the present ; nothing whereby to measure the damages. This is an action for an Z7T: J^«^«^"^'g^t have been brought equally well, for taking scantling and ^.oards, the value of which IS the true estimate of the damages. The HILARY TERM, 10 GEO, IV., 1830. 71 land in question was in possession of the defendants, who cleared it. (This was shewn by one of the affidavits.) No evidence was given that plaintiff meant to set up a tavern, as was pretended. The proof was confined to the putting up and pulling down a frame, and an idle expression uttered in heat. They do not, nor could they prove, that the intent of defendants was to favour some other per- son ; it was merely an empty assertion of Redpath, a subordinate agent to the other defendant. There is no ground to allow the plaintiff damages for the loss of tavern keeping, where non constat that he would get a license. The Chief Justice.— This is a case of consider- able importance, from the tature of the defence ; not properly the defence made out by evidence at' the trial, for the defendants called no witnesses ; but the defence which has been adduced in the affidavits produced on the argument for a new trial. This defence has been grounded on the act of this prov- ince, commonly called the Rideau Canal act, which confers on the persons employed in constructing the Rideau Canal certain powers and privileges. Under these powers and privileges the defendants claim to be protected against this verdict, and it is equally necessary for the public service, and for the peace and interests of individuals, that any legal questions likely to arise upon the extent and application of the act alluded to, should be speedily and clearly set- tled. The Rideau Canal is a public work of great im- portaD' to the province in several points of view, 72 HIIABV TERM, 10 GEO. IV., 1830. and that its accomplishment will confer immeDse advantages „po„ this country, there can Tel doubt. Like other great and general benefits h^ ever It cannot be attained but with some partial sacriflces-and, of necessity, private inte«,8t8 and convenience must, for the sake of such objects be made to yield to the public welfare. It is To n al countries. It is the duty of the legislature, howrver and without doubt it is their wlh, to iake such provisions upon these occasions as will secure to' EeSllf''™'^""™ *«"-"— The statute now in question confers large and libera powers, such as manifest, on the parfofThe legishiture the greatest confidence in the judgment and discretion of the public officers and agents "t employed. It may be, that the powers'given by he a«t now under consideration, are unusually ei tensive ; but I believe, upon a comparison of its provisions with those of acts passed for similar p„ ! poses, and even for less important purposes, both in these colonies and in Great Britain', it will be found that they are, m no respect, unprecedented. It is evident that the legislature, when they ere- ate such powers to be used only for the public good act upon the double assurance that there will Co disposition to abuse them, and that even if such d disposition should discover itself, there is inherent in t^CtT^'""^ P"r- '» <=»'■■•<«" it. The language of the Rideau Canal act is so comprehensive as to afford great latitude to the court, fn applvin? the amp.c protection it gives, according to the" truth of HILARY TERM, 10 GEO. IV., 1880. is the case. I say, according to the truth of the case, % if indeed a mere pretence should be advanced it ought not to be suffered to succeed, and the law will take care that it shall not. In this case, the plain- tiff complains that the defendants committed a tres- pass on his close, and pulled down and destroyed the frame of a house that he had erected. He proves the acts that he complains of to have been committed and defendants produce no witnesses ; but it appears from the testimony brought forward on the other side, that they are contractors on the Rideau Canal and if any question can arise as to their right to pro- tection in that character, I have no hesitation in considering that whatever power is given to the Military Superintendent employed in constructing the work, is equally extended to them, as his servants or agents, and that whatever he could justify as ne- cessary for the service he is engaged in, they could equally justify, if done under his discretion and with his sanction. It would make no difference, in my opinion, whether they were labouring under' the su- perintendent, in a military department, or upon a contract. They are protected, when they shew that the act complained of was done under the authority contemplated by the statute, and was necessary for some of the purposes to which its provisions extend But here, in my judgment, the defendants have failed to prove any thing that might establish such a defence. It is true that since the trial, and upon the motion before us, for setting aside the verdict the defendants have read an affidavit of an engineer upon the necessity of the act committed by the defendants ; but we cannot try the cause here nor can we properly direct a new trial, in order that it 74 HILARY TERM, 10 GEO. IV., 1880. S«i I I may be decided upon this new evidence. In evidence of that nature the defence, if any could be urged entirely consisted. None such was offered at the trial. There is no allegation of surprise, nor any reason given why the defendants were not prepared to justify their act before the jury. la all other cases the rule is, that a now trial shall not be granted in order to ena,ble a party to give fresh evidence, which he ought to have given upon the first trial. it It were otherwise, there would be no end to liti- gation. The exceptions to this rule are so few and under such circumstances, that they tend stronglv to establish ikQ rule. Law is administered upon general principles, and if, without some satisfactory reason, we should forbear to apply a well known rule here, which is applied in other cases, we should act arbitrarily, and against authority. The only reason suggested is, that the case affects the public officers • but I cannot, in the absence of all necessary proof' attach importance to that circumstance. In common cases, between party and party, ignorance or poverty may sometimes really have occasioned a defendant to omit evidence necessary to his defence ; but the very aUegation that here the defendants' acts were done under higher authority than their own. implies that there was no such want of intelligence or means as might sometimes be pleaded, though not effectually' by 01 defendants. Why the defendants did not take the necessary measures for bringing their de fence properly before the jury, does not appear; but It may be gathered from the argument at the bar that they relied upon the act for protecting them But to have the benefit of that protection they should have shewn, if uwy could, that their conduct was HILARY TERM, 10 GEO. IV., 1830. 76 such as the act justifies ; they should have proved themselves within it; primd facie, their act was a trespass. It was a forcible interference with another's right, and the proof of every fact necessary to justify such an interference, was incumbent upon them. There are numerous statutes which protect indivi- duals in the discharge of public duties. They all proceed upon the same principle, and, with respect to all of them, the party claiming protection in a suit at law, must raiike out his case, and not leave it to be conjectured by the jury. He cannot content him- self with merely proving that he was a public officer, and call upon the jury to presume that all he did was legal. It may, without consideration, appear a hardship to the officers employed on the Rideau Ca- nal, that they are exposed to be harassed with actions at law, and put to great trouble in vindicating acts which the lavv has authorised for the public good; but this is unavoidable, because, on the other hand, pri- vate rights must be protected; and this can only bo done by providing that when an injury is complained of, there shall be a complete investigation. Magis- trates, for instance, are acting gratuitously in the discharge of duties very important to the public, and in no way beneficial, but often disagreeable to them- selves; still they are liable to be harassed with actions, in which they must defend themselves by proving their acts to be legal. It is so also with path-masters, sheriflB, custom-house officers, and many others. It is not their ptiblie character alone, but their conduct in that character, which constitutes their protection; and that condurt, therefore, must .)G She^n by them to be legal, whuuevei- ii is brought into question in a court of law. 76 HILARY TERM, 10 GEO. IV., 1830. i ft) In this ca^e, the only particle of evidence that conld make for the defendants, came out by an ad- mission of the plaintiff that a clerk of the defendants had written a letter declaring to the plaintiff that he would not be allowed to place his house where he ?o"r"'""^"'"'^«™-'^''''"^-^-^ rt is impossible to contend that this is any evidence • because If the mere assertion of a clerk of a contrac-' tor, Uiat a piece of ground was necessary, is to be cousidered conclusive proof that it was so without his bemg held to declare afterward on oath, on wha authonty, or with what degree of justice and reason he said so, then every proprietor of land in the vici- nity or indeed in that district, would hold his land and house at the mercy of the discretion and honesty of a contractor's clerk. ' t hi,!l7 ""^^""l' ^" ^''"'"^^ ^^ *^^ superintendent hunself wonld be equally inconclusive, if he cannot afterwards shew that in making such a declaration he acted i^a^^ and within the fair scope of his duty If he really did want, for the purpose of the canal, the land on which the frame was erected, the act pointe out how he is to proceed, and if his taking It should be afterwards complained of, he must be prepared to shew on what ground and for what pur- pose he took It. A custom-house officer has power by act of parliament, when he suspects unlaw/ui goods are concealed in a house, to take a peace offi- oer m the day time, and search for them: but if under this authority, he should enter the house of a most rospectable person, a magistrate for instance HILARY TERM, 10 GEO. IV., 1880. 77 dence that ; by an ad- defendants tiff that he where he ? required evidence; a contrac- Y, is to be 3, without I, on what ad reason I the vici- i his land i honesty ntendent le cannot claration >e of his 3e of the ated, the is taking must be hat pur- ! power, mlaw/ul ace offi- but i^, use of a istanee, or a clergyman, and pretend to search, when in fact there was no cause, it would not serve his purpose to shew m his defence upon an action, that before he went m, he had asserted, that he did suspect unlaw- ful goods were concealed there, he must shew some reason for his suspicion, or a jury will not believe that he entertained it; they will regard him not as acting under the statute, but as acting oppressively under colour of the statute, and they will give dama- ges against him accordingly. But then, it is said that the statute makes it sufficient that the superin- tendent shall think it necessary to do the act com- plained of, and that there was in this case a legal justification made out under the statute. There is no room here to contend that any thing was proved on behalf of the defendants. Whether the superintendent really did think the exclusive possession of the land in question neces- sary for any purpose, was not proved at ust act carefully and cu-cum- yecay m availing themselves of the privileges which the act confers. pr'vnc^es nufslJ^' '''""'T *"' ^'» "« bronght in question, they must be prepared to shew bv le^l evidence that they have keprwithin their aul^! unfbt I'tJ^f^t"- ■'"""''''■ ""' "" ""^^ sn ♦1,.^" i- u, P^^^eeamgs, ti neglect to do 0, ihej are liable to sueh damages as a jury luay think It right to give, and that, although this^Z 82 HILARY TERM, 10 GEO. IV., 1880. 1; has undoubtedly a right to exercise a control over the discretion of a jury, they -will not do so, except upon the same principles as would justify such an interposition in other cases, and that they must be very strong grounds indeed that would lead i le court to think such an interference proper in an action of trespass. Sherwood, J. — I concur with the t ief Justice and my other learned brother, in the opinion which they have formed on the question for a new trial' in this case; but, I am not prepared to express any opinion at this time, on the general construction of vh ;; act to authorise the formation of a canal Irom the I'ver Ottawa to lake Ontario. I give no opinion on that subject. There was no evidence offered at the trial to shew that the officer superintending the works on the Rideau Canal, had set out or directed any specific quantity of land to be appropriated for the use of government, or that the frame of the house destroyed by the defendants was erected on l^nds necessary for the use of the canal. Macaulay, J. (after stating the case) — The aflfidayit offered by the Attorney-G-eneral, on behalf of the defendants, I think inadmissible. It discloses matter very proper to have been proved at the trial, but does not seem to contain matter discovered since the verdict, on which principle alone it could receive consideration. This canal is an undertaking of his Majesty's gov- ernment, under the superintendence of a military officer of high rank and distinction ; and as it must necessarily pass through various tracts of private HILARY TERM, 10 }E0. IV., 1880. 83 property, legislative aid became necessary in the outset. The provincial act, passed according .-, re- cites tfie object of his Maj sty's governmr * and the expediency of affording every f:>dlitr The first section enables the superintending ofii r to make surveys and take levels, upon any lands within a prescribed range, and to set out and ascertain such parts thereof as he should think necessary and proper for making the said canal, &c., doing as little damage as migh be, in the execution of the several powers to him granted. It expressly authorises the officer la charge to set apart such lands as he might think ne^^essary and proper for the object contemplated. Without thi- authority he could not do so, and this being the only k -al authority, must be adhered to ; for beyond fts prov 'sions no one can safely go. In acting under this statute, it appears to me, the head of the departm nt should, in the first place, exercise his sound discretion in determining what lands should be set out for the canal, and in the next place cause the same to be set out and ascertained accordingly. The court is pressed to say whether in doing so he is amenable to any and what control. As a servant of the Crown, he is of course responsible to his Ma- jesty for the judgment and discretion with which he selects lands, as well as for the discharge of all his other duties. Independently of which, he and those acting under him are liable to be proceeded against in the courts of justice, whenever they infringe the private rights of individuals, however inadvertently; in other words, whenever by exceeding the powers conferred by the Rideau Canal act, they tortuously interfere with the property or possessions of any of the King's subjects. But as long as they confine IMAGE EVALUATION TEST TARGET (MT-3) A. & ^ .^ .^ 11.25 mOioglBphJC ^Sciences Corporatioii 23 WBT MAIN STMIT WMSTM.N.Y. I4SM (71«)B72-4S03 ^^% 84 HILARY TBRM, 10 OBO. IV., 1880. themselves within the statute, they are justi6ed under its provisions; consequently, as long as a sound dis- cretion is used in setting apart the lands requisite for the intended navigation, no risk is incurred. Should any person, however, deny the power to appropriate any particular tract to the public use, he can insti- tute a suit, in order to obtain a judicial decision on the subject In such action (if trespass) he would have to prove un act of trespass against the party prosecuted, after which it would be incumbent upon the latter to establish a justification under the act. Should it be proved that the superintendent had set out and ascertained the locus in quo, as in his opinion necessary and proper for the canal, I should think those facts would constitute a good primA Jacie de- fence. While I conceive, nevertheless, that every reasonable construction should be given to the statute, so as to afford the protection cootemplated by the legislature ; I at the same time think it open to any party aggrieved to rebut the defence set up under colour of its sanction. If it could be shewn that the principal officer, or any of those acting under him, had not proceeded bondjfide in ascertaining and set- ting out any particular piece of ground as necessary and proper for the work; if it were made appear that the act of parliament was resorted to under a pre- tence merely, the party being actuated by a different and, therefore, an unjustifiable object; should it be manifest and obvious that not a sound but an arbi- trary discretion had prevailed, and that, in fact, the land evidently could not be requisite for the purpose alleged; or if it were established, that they had not refrained from doing as little damage as possible, or, in the words of the act, " as might be in executing HILART TERM, 10 OBO. IV, 18M. 85 the powers graoted, but had wilftilly or carelessly done otherwise," then, in such like instance, I am of opinion, that the courts of the country, in construinR and giving effect to the statute, as respects the King's officers on the one hand, and adjudging upon the rights and properties of individuals on the other would be constnied to deny its operation to protect those whose conduct might be arraigned. Still I would hold, that a glaring want of discre- tion, or a manifest abuse of the privilege granted by law, could alone sanction the exclusion of the parties accused from the protection sought, when they could shew an ostensible compliance with the ♦erms of the act. It should always be presumed, until the con- trary appears, that the agents of the government act bon&fide and discreetly in whatever thay do in the discharge of their public duties, and it should equally be presumed, that courts and juries will do so likewise, when called upon to adjudicate between them and others of his Majesty's subjects. If in the opinion of the court, the jury should inad- vertently exercise an unsound discretion upon any matter within their province, relief may h, afforded by a new trial ; and should the court concur in their findmg. on any occasion, the parties interested may secure to themselves an appeal to superior tribunals as far as such privilege can be enjoyed by suitor^ generally, under similar circumstances. To sustain a justification, under the first section of the Rideau Canal act, it seems to me, that not only a sound discretion should be used, (which will be presumed in the absence of proof to the coU' 86 filLARY TERM, 10 6eO. IV., 1880. trary,) but that it should be further proved, that the land in dispute was set out and ascertained as proper and necessary for the canal, by or under the direc- tion or authority of the superintending officer ; set out and ascertained by some regular act or process susceptible of proof, and which, when necessary, should be proved. It- is important, that all private estate to be appropriated to this undertaking, should be accurately defined, not only to guide those em- ployed in the work, but to apprise the owners of the extent to which they are entitled to be abridged, as well as to enable them to claim the remuneration to which they become entitled, and not the least essen- tial, to enable the public agents to justify, under the act, when called upon to do so by legal proceedings. This act follows very closely the Welland Canal act. The Welland Company derive, under their act of incorporation, powers fully as extensive as the Ri- deau act confers, with respet the right of appro- priating private property, auu many of their pro- visions will, upon comparison, be found almost similar. The officers conducting the Jlideau Ctoal service, and the agents of the "Welland Company, act under similar protection, and are stibject to equal respon- sibility to the laws of the province. I do not con- sider, that the circumstance of remuneration, accord- ing to the valuation of referees, would entitle the one or the other to monopolise whatever lands they might please. The power to appropriate is with a view to the pubLc good, to which private interest and inclination is made to yield. Remuneration may be loag deferred ; many might not be willing (unless HILARY TERM, 10 GEO. IV., 1880. 87 compelled) to submit to the estimate of others, or perhaps, to part with their property at all, and when forced to do so for public purposes, no more could be legally exacted, without consent, than may be necessary and proper for the object intended. It is unnecessary to remark, that as the laws we enjoy extsnd equal protection to all, and are open to all, that any one who considers hiip^elf aggrieved has a right to appeal to them for redress ; and that the court must indiflferently administer justice, accord- ing as the facts in evidence, in each particular case, shall warrant and require, The Rideau Canal being an object of great public riomeut is a very good reason for the legislature granting powers and facili- ties not previously possessed, but when public ope- rations of this kind clash with private rights, the authority given over the latter should be kept fully in view. The object being a public or valuable work, cannot Teigh with a court of justice in apply- ing the statute to individual suitors, because it af- fords no satisfaction to the party in whose case it is urged. He cannot be compelled to sustain any dis- turbance or loss, by reason of the public and bene- ficial undertaking, beyond the peremptory provi- sions of law, unless personally assenting. Such being the case, and considering the scrupulous re- gard which the constitution pays to private rights ; also the strict and rigid rules by which the courts must govern themselves in judicial enquiries, too much circumspection cannot be observed in carrying into effect the powers of the statute. To advert more especiaUy to the present c^ej I am by no means prepared to say, tha,^ the /«:«/«» d8 HttARlf TBBM, 10 OBO. IV., 1880. quo may not, with great propriety, be set apart for the canal; but the court must decide upon the evi- dence addaced, and upon that alone. If previous to the trespass complained of, it had been set out as thought necessary and proper, the fact should have been proved; in the absence of proof it must be taken not to have been so set out. Then it appears a tres- pass was committed without justification, and conse- quently the damages were in the discretion of the jury, subject to the review of the court. When the court is satisfied the jury have exercised a wild dis- cretion, by giving outrageous, intemperate, or exces- sive damages, relief may be afforded; but this being a delicate prerogative of the court, is reserved for extravagant cases. The principles which govern the court have been frequently, and on the present occa- sion were fully and ably discussed. On some occasions the actual injury inflicted should form the measure of damages ; as where an officer acting &wd>*, and intending to confine him- self within the act, unintentionally and innocently exceeds his powers, there the conduct of the party and the important public service in which he is engaged, are proper to be regarded by the jury in estimating damages, though not by the court in deter- mining whether the facts disclosed amount to an actionable trespass in law or not. Notwithstanding a strict right of action may exist, the circumstances would not warrant vindictive damages. But if, under the pretence of authority, an injury is committed ; if improper motives are shewn; if a needless excess of damage is in proof, wUfully and knowingly com- mitted, the jury hare a right to punish the offenders, niLABY TBBM, 10 OEO. IV., 1880. 89 and the absolute protection which the statute affords when conformed to, strengthens the call for damages when it is abused to sinister objects. In the present case, some part of the defendant's conduct would argue the absence of a justifiable mo- tive, and although the expressions used may have been spoken in haste, or under excitement, still it was properly left to the jury to pass an opinion upon the whole merits of the transaction, as in evidence. They have found that the defendants were actuated by improper motives, and that they transgressed the law. The testimony warranted such finding and having so found, I do not feel that we are at liberty to say they have acted incorrectly. The verdict is right in law, and though less damages would doubt- less have redressed the plaintiff, yet I cannot declare that the jury have so far exceeded in the discretion . reposed in them, as to warrant a new trial for exces- sive damages. I think the rule nisi should be dis- charged. Per Cttmin.— Rule nisi discharged, (o) Segula Generalis.— Ordered, that the first Friday the second Monday, and the second Wednesday in every term, be paper days for the arguing demur, rers, special cases, special verdicts, or points reserved- and that on those days the paper list be gone through before any other motion or business is entertained Edward a Campbeil, Walter Hamilton Dickson and John Bogart, Esquires, were called to the bar' au'^ sworn in this term. ' (o) "Vide, 1 B. & C. 168; 2 B. & C. 768j 2 Bl. 1141.' N m EASTER TERM, 11 GEO. IV., 1880. Present : The Hair. Jobn Bevakust Bobinsox, Cbief Jwtic«. Levius Petkbs Shbbwooo^ Judge. Jambs Buchanan Macaulat, Judge. (< t« BowaiLL V. Hartwbll. A rute fop payment of costs had beea gninted in this cause. The court, on the usml affidavit of the service of that rule and demand, made the rule for an attachment for non-payment absolute in the first instance. Howe kt al. Newman bt al. This was an action of covenant, Iwought upon an agreement, by which, aa it is stated in the dfeclawi- tion, the plaintiffs covenanted " that they woald quarry and deliver, at or near the lime-kiln, on the lot of land occupied by Colonel Fei^son, adjoining the north easterly part of the town of Kingston, two hundred toises of stone for building the piers and abutments of an intended bridge over the great river Cataraqui, and that ^11 the stone should be good sound quarried stone, subject to be inspected by the overseer of the Cataraqui Bridgje Company; and that if any part of the said two hundred toisea of stone should be condemned by the overseer, efther as not sound or as not fit for the intended purpose, the same part so condemned should be replaced by the plain- tiffs, and at their own proper costs and. charges. All BAflTER WRM, 11 oeo. TV., 1880. gj ™.»^ . . ■i"* ^^ "'^ defendsnts on tbeif p«t^cora.«nted "fliat they wouM pay to the plata. ««* ftw b to (ay, the son of 68. 9d. fof everT216 we and 8im to be payable within one-third of the meaw^ment .8 fl,e mid worit Aonid progre^ 'a S'o^' "' ""t'"""""*' "f *« cX't" And ^ffMhen aver that althongh they have per- «to trne ntmt «r Sie agreement, and althongh they 200 toB« of goo,Ho«ndqpa.Tied stone, nea.,ke«Hd *«'*•/« a>,«„rf, jrtjeet to be inspected, as .'he Stone was always ready for the said wort &c Z P^t^ that the s«a defendants ha^'nTt'p^ fomed any thing on their part to be perfom^,'^^ t^^eS^llf*^' •» » *» "i* "greement is men- merit Of (he said stone, as the said work did proeress «.d *« residue of the said sun, on the famimToi asM^d contract M delivery of the said stone, bat o« a,e«,ntt«y themf, althongh the said conlract *«v«««dMiabw«H|, y«t (he **«d«nta have not 92 BASTBR TERM, 11 GEO. IV., 1880. paid the said sum of 6s. 9d. in manner as aforesaid, for each and every toise of stone so delivered in manner as aforesaid, amounting in the whole to £67 10s.; but to pay the same, or any part thereof, the said defendants have hitherto wholly refused, con- trary to the effect of the said agreement. In the second count, the agreement is stated in the same terms, and the plaintiffs aver, that although they have always been ready and willing to fulfil, &c., on their part, &c.; and although they have, in part per- formance of their covenant and agreement, well and truly quarried and delivered for the defendants a large quantity, viz., 196 toises of good sound quarried stone, at the said lime-kiln in the said agreement mentioned, subject to be inspected, &c., as in the said agreement mentioned ; and although the stone was always ready for the defendants, according to the agreement, and although the defendants received and took away the said stone so delivered, and laid the same in the walls and abutments of the said bridge, yet the defendants did not pay, or cause to be paid to the plaintiffs, the said sum of 6s. 9d. for each and every toise of stone so quarried and delivered as aforesaid, as in the said agreement is mentioned: that is to say, within one-third of the measurement of the said stone, as the said work did progress ; but on the contrary, although often requested, the de- fendants have hitherto wholly refused to pay to the plaintiffs, in manner as aforesaid, the said sum of 6s. 9d. for each and every toise of stone so delivered as aforesaid ; by reason whereof, the plaintiffs have been unable to perform the said covenant and have been prevented and hindered from quarrying and delivering the residue of the said stone, to wit, five BABTER TERM, 11 GEO. IV., 1880. 93 toises Of Stone, according to the said agreement. And so the plaintiffs say that the defendants have not kept their said covenant, but have broken the same, &c. The agreement is afterwards set out on ouer; not varying from the statement of it in the declaration • non est factum, and four special pleas were pleaded.' Ihe plaintiffs took issue on the two first special pleas and demurred to the two last, and last term this de^ murrer was argued. The judgment of the court was deferred until this term, and was given on the de- claration only. And the whole court were of opinion, that the second count was not sustainable. For though the plamtiffs in that count do aver, that the 196 toises which they say they delivered, were laid in the wall they do not claim, according to the number of toises of 216 cubic feet, as measured in the wall ; nor do they aver how much the 196 toises so quarried and delivered measui - when laid in the wall ; and they state therefore as a breach, that the defendants did not pay 6s. 9s. fo;- each toise of stone so delivered as aforesaid; that is, delivered at the lime-kiln, which they never covenanted to do. The want of a state- ment what the plaintiffs are entiUed to claim by measurement in the wall, and still more that such a measurement has taken place are fatal objections to this count. A^ to the first count, the Chief Justice and Sher- wood, J., were of opinion, that it was also bad for want of an averment that the stone had been laid in 94 EA8TER TERM, 11 OBO. IV., IIM. tbe WftU and measured there; imtMaeaula^,^., thought that Althoiagh the plaintiffs did not speciaUj aver thait the stone delivered by them was vsed in the irork, still it might be fairly intended under the pleadings on this demurrer. That if it were not used in the work, much of what the plaintiffs afirm, and the defendants do not deny, wcnld be UBtiae ; although the objection would be fat^l on special demurrer. On the subsequent pleadings no judgment was given, as the declaration was held bad by a mfyority of tiie court. Per Curiam.— (Dias. Macaulay,J.) Judgment for defendant. Q^ARi>yBR v. Stoddard. In eoTeunt, when the platotiff hu » T«rdi«t for £2 only, the eoort ImM h* waa not entitled to King's Bench eoita. It ia not neccm^ for the defen- dant to apply fur leare to enter a suggeBtioa to depriTe the pldntiff of hie King'B Beaeh eosts. The Solicitor-General iiad moved, last term, ft* an order on the master, to revise his taxation of costs in this cause, or for leave to enter a suggestimi on the roll, that the case was of the proper competence of tiie distrid; court, in order to deprive the plaintiff of King's Bench costs, under the stat 68 Geo. HI., c. 4. The defendant had leased to the plaintiff a saw- mill, and defendant covenanted to put it in immediate repair. This action was brought for not repairing, and the plaintiff had a verdict for £2 damages. No certificate was obtained or applied for, and the ma8>- ter ixSn*. tascd isli C€@t3, aiidef the suiAoisnr of Mo^ uaa nm, ii aio. iv., un. 95 «arrvv.Oj-r.(a). The court took time to consider «d not agreeiog, delivered their opinion «^™;''^ Macauiay, J._After final judgment no suarestion ««. be entered, and the queationl, whether Su^ «« be restrained from taxing more han dfaWc »!« costs upon this record and'Verdict, or wScranv .Uffiestion benecessary of the facts which (exXvZ of the verdict shew the cause a proper one S lutes were repealed by 2 Geo. IV c 2 IR29 which last «,t constitutes (he district conri luh 40s. to £16 ; and when the amount is liquidated or «cert...ed by the act of the parties, or tte Sc the transaction, to £40. Also in tort respectinrwr sonal chattels, when the damages to be^e^veTed Kr::U"«n:"'«'^"'^'»'-^'*»»- The atst question is-can covenant fordamaees be brought ,n a district court ? All matters of c^! tract include contracts under seal, as well as simple contracteandlshouldthinkboth descriptions eqS withiu the jurisdiction. Then is the 68 Geo UI which was made to apply to the 34 & 37 Geo III" be extended to the 2 Geo. IV., which repealed ttem and consUtutod new district courts ? Ass„m nl for the present th atiUs, the next question i.,, ,„ wh"^ (•) •■•«.». S» Wl,«l„ ,. Sta,, « u. 0. «. B. S66. 96 EASTER TERM, 11 GEO. IV., 1880. suits does 68 G-eo. III. extend? Some obscurity exists in the use of the word withdrawn. I do not take it literally; but merely to mean not instituted, as if it were enacted, " unless the judge, &c , certi- fied that the cause was a proper one to have been instituted, in the King's Bench, and not in the dis- trict court." It seems to me, that it extends to all suits that might have been efiFectually carried on in t^ 3 district courts, although commenced in the King's Bench, and to no others. Then the question arises, what is the jurisdiction of these courts ? Is it over all transitory actions, the defendant being within their jurisdiction; or local, over such causes of action merely as arise within the limits of its jurisdiction ? If, as I believe, generally over all suits, depending only upon ttie residence of the defendant, then how is this court to be informed that the suit is of the compe- tence of the district court, and how is the defendant to avail himself of the provisions of the 58 Geo. III., as to costs ? It seems to me, at present, that a suggestion is requisite unless it appear unequivocally on the re- cord ; and even then, I doubt whether some entry is not necessary in the nature of a suggestion. It is obvious the King's Bench has a concurrent jurisdic- tion, and a case may, at nisi prius, though not before, appear to be of the competence of the district court. The judge of assize, if moved in such a case, may certify, and there is an end of the matter, and the plaintiff is entitled to full costs ; but if the plaintiff has omitted to move, or should the certificate be refused, it would not appear, unless by the amount of the verdict, that the suit was within the district BA8ETR TERM, 11 GEO. IV., 1880. 97 court cognisance. Had it been intended that the verdict should regulate, why was it not so expressed ? As thus, that suits which by the verdict rendered should appear to be of the proper competence, &c. ; or, suits in which the plaintiflF shall not recover more than such sums, repeating the district court limits. It may, in the first place, be very doubtful whether a suit is of the proper competence or not ; for ex- ample—the cause of ction may have occurred abroad, or in one district, defendant residing in another. When the ouestion occurs, as to the origin of suits, over which these inferior courts have juris- diction, it may be very doubtful whether the title to land comes in question or not. In cases of doubt a certificate would settle it ; but if the certificate should be refused it might be very important to have an adjudication of this court on the point. Again us justifying resort to the King's Bench, admitting 'the district court jurisdiction, it might be urged that de- fendant contracted in one district and afterwards removed to another ; or, the sufficiency of the cause, in law, might be questioned ; or, it might be alleged that witnesses resided in different districts, and such fact might be contested. It might be doubtful whether the facts establishing a claim to £30 prove a liquidated demand or not. Indeed various points of law might arise, and various facts be contested in acting under the statute. Yet still the question re- mains, how are they to be disposed of? If the verdict is to regulate, the judge at nisiprius must hear, examine, and decide facts as well as law, un- less he is disposed lo reserve any legal point for further consideration. But I do not perceive why tho verdict should regulate, for it seems obvious to 98 EASTEft TERM, U GEO. IV., 188a me that the propriety, of resorting to the King's Bench, does by no means generally depend upon the amount to be recovered, but upon various collateral circumstances. The verdict may be re- duced by set-off, from £100 to £5, yet it would not appear on the record. To ask a judge to certify that such a cause was a fit one to have been withdrawn from the district court, i.e., not brought into that court, would be inconsistent, if it were per- fectly apparent to the court that the plaintiff could not have effectually prosecuted and obtained his right there, if it were plain that the district court could not have jurisdiction over the matter. The act applies only to suits which might be brought in the district court, but which, for special reasons, were withheld and instituted here, and the judge of assize is required to exercise a discretion in such cases. In assumpsit, or tort, various defences under the general issue may reduce the verdict from a prmti /acw claim far beyond, to a recovery much within the competence of the district court, in point of amount • payment of money into court— partial payments accord and satisfaction to a certain amount — a dis- pute how fiar the articles sold constitute necessaries recoverable fr :m an infant— value — iailure of evi- dence — want of notice of dishonour, by which whole counts may fail — insufficient evidence to sustain some counts in other respects — conflicting testimony left to the jury, &c. In tort, trover for example, a re- turn of the chattels — opposing testimony as to value, &c.; in short, a great variety of circumstances, in mitigation of the plaintiff's prtmA facie case, might EASfBR TERM, 11 GEO. IV., 1880. H frequently weigh with the court or jury in reducing the amount to be recovered ,- and as the act does not provide that the amount recovered is to be thfe cri- tenon, but whether the case, being origlrtally of the competence of the district court, was properly coiu- menced in the King's Bench, I do not think the con- clusion can be drawn from the verdict alone I think the act only includes cases which by the plain- tiff's own shewing, independent of the defence were competeut to the district court. If that appear con- clusively on the record, it is sufficient ; if not it should be suggested. If it appear at nisi pritts, Ihe judge may certify or not, in his discretion. If in doubt and willing to give costs, a certificate would end the matter ; but if in doubt, and not willing to give costs, the facts as elicited at the trial being sug. gested Without leave to traverse, (but with permission to demur,) would bring the question before the whole court. It is questionable what considerations are to be entertained in determining whether a suit is proper to be withdrawn from the district court • that is whether the merits of the case itself, as respects the' mtncaey of legal questions, &c.. ought not alone to be regarded ; or whether extraneous facts^-as the residence of the parties-the witnesses, &c.,— ought to be admitted. Upon this subject I forbear ex- pressmg any particular opinion, though I incline to thmk extraneous facts ought rather to be rejected than received. A contrary practice has, however, hitherto obtained, and perhaps the act requires amendment on this head. ^eaT.ng m mind that the district courts are coorts of inferioD and of ioe^J jurisdiction, I would enquire 100 EASTER TERM, 11 OEO. IV., 1880. into the English practice in analagous cases. The right to costs, given by the statute of Gloucester, was first restrained by 43 Eliz. c. 6. The 3 Jac. 1, e. 15, makes a further exception in favour of citizens or freemen of London residing within the liberties thereof, when the debt to be recovered by the plain- tiff shall not amount to 40s. This act is extended by various subsequent enactments. The mode of taking advantage of these acts is by plea, su^estion, or motion. If the bringing a suit be absolutely prohibited, it may be pleaded ; otherwise the more proper mode seems to be an application to the court, by affidavit, for leave to enter a suggestion of the facts necessary to entitle the applicant to the benefit, which may be traversed or demurred to. There are various cases on the subject. — Str. 46, which case has been overruled by 2 H. Bl. 854, and 9 East. 322 ; Str. 50, 974, 1120, 1191 ; 2 Wils. 68 ; 3 Wils. 48 ; Barnes 354, 470 ; Sayer 273 ; 8 East. 239 ; 4 M. & S. 171 ; 1 Chit. Rep. 636, n. ; 1 Bing. 100 ; 6 Taunt. 36 ; 2 Taunt. 169 ; 1 Taunt. 397 ; 5 Taunt. 820 ; 3 M. & S. 591 . As to the mode of entry, it might be alleged simply that it appeared to the court that the case was of the proper competence of the district court, or by the report of the evidence at the triai, which, being received under oath, is equivalent to an affidavit. Such a suggestion not being a fact, but a legal result from facts, could not be traversed. The facts themselves might be entered with a view to a demurrer, but not a traverse, after the same had been proved at nisiprius. — Cases Temp. Hardw. 126. The present is an action of covenant. — Breaches are suggested, by which it appears that the plaintiff goes EASTER TERM, 11 GEO. IV., 1830. 101 for unliquidated damages. The defendant does not deny the breach, but denies the covenant. The issue is upon non est factum of a deed involving in- terests on the face of it, liable to exceed the juris- diction in the contemplation of the parties ; and how can It be inferred from the amount of damages assessed, which are collateral to the issue, that a suit m which such issue was to be tried, was com- petent to the district court, or how could it be fore- seen what the issue would be ? The case is surely primd facie, properly commenced in the King's Bench. The defendant denied his deed ; this is found against him. What evidence was received on either side, in support or in reduction of damages we know not. Plaintiff may have given pnmA facie evidence of much more than was recovered. Various mitigating circumstances may have been offered. There may have been much conflicting evidence as to the amount, and it may in fact be true, for all that appears, that the district court could not have dealt with the case. I cannot infer, that because the damages are only £2, therefore it was a case competent to the inferior court. I should desire to know the fact, in evidence, and the testimony ad- duced, to enable me to determine that question. If it appeared to be so, I would approve of a sugges- tion to that effect ; but in the absence of any such suggestion, I do not think that the defendant is en- titled to reduce the plaintiff's, or to be allowed his own costs in taxation. Chief Justice.— This is an action of covenant brought upon an agreement, by a tenant against his landlord, for not putting premises in repair. The 102 tiABlXR TERM, 11 GEO. tV., 1880. claim for damages is left perfectly open by the agree- ment ; they are laid in the declaration at £500. Oa non est factum pleaded, the parties go to trial, and a verdict is rendered for the plaintiff, with £2 damages. Judgment is entered on this verdict in the vacation after last Michaelmas Term ; the master taxing King's Bench costs ; and now the defendant moves to revise taxation, in order that the plaintiff may be restrained to district court costs, under the provincial statute j and he also prays liberty to enter a su^estion that the cause was within the jurisdic- tion of the district court ; conceiving, I suppose, that such a suggestion may be necessary, to entitle him to the benefit of the statute referred to. Though, as between the parties, this question merely involves the value of the difference of King's Bench and dis- trict court costs in this particular suit, the decision upon it is of considerable importance, if it is to settle the proper method of giving effect to the statute 58 G-eo. III. It is many years since that act was passed, and one would ima^ne, that the consequences of its provisions must have been so far ascertained and established by this time, as to have led to an under- stood practice under it. — But there seems to be doubts as to the real intention and sound construction of the act, and it is of consequence that they should be removed. It was suggested, when this cause was first men- tioned, that in construing the statute, attention must be paid to tho words "fit cause to be withdrawn," &c., and that those words seemed to restrain the application of the statute to such cases as, by the statement of the cause of action set forth in the BABTBR TERM, 11 OK). IV., 1880. 103 declaration, appeared to be such as the district court could have entertained ; because, it is argued, the judge could not certify with respect to any cause ^t It waa a fit cause to be withdrawn from the district court, when, by the record, it appears mani- lestly that the cause was such as never could have been brought in that court. The judge consequently It may be argued, cannot give such a certificate whatever the cause of action might in fact be. Upon consideration, I do not feel this difficulty I cannot suppose that the legislature meant by the term "withdrawn," as it is used here, a taking from the district court suits that had actually been com menced there ; because they doubtless knew that such an expression would, in that sense, have been mapphcable to the course of proceeding: the word withdrawn is, I think, inappropriate. The intention of the act would have been better expressed bv the term withheld from, than withdrawn from, the dis- trict court, ajid that is the meaning which I attach to it ; as if the legislature in other words required the certificate to be, that the cause was not a fit cause to be instituted in the district court. Then if no difficulty arises from the peculiar ex- pression " withdrawn," (and I think none does ) the statute is very similar in its intention to many that have been passed in England, for confining small causes to inferior courts ; and having considered the eases, of which there are many decided upon those statutes, and keeping them in view as far as they are applicable, I do not perceive a difficulty in givinc to tiie statute the effect which the legislature intended 104 EASTER TERM, 11 OEO. IV., 1880. In the first place, to use the words of the statute, is this action " of the proper competence of the dis- trict court?" This question, I conceive, is now to be answered upon a full view of the case in this stage — i.e., after the verdict — when the evidence has disclosed the true circumstances of it, and the jury have reduced all doubtful facts to legal certainty. Knowing what is now known of this action, I am of opinion that in the first place, so far as amount is to be considered,- it was within the proper compe- tence of the district court. In an action of covenant, unliquidated damages may be recovered in that court, to £15. Here the jury have given £2 ; that ascertains that the damage to be recovered in this action did rot exceed two pounds. It is true the plaintiff has laid his damages at £500, a sum far beyond what he could have recovered in the district court ; but that is his assertion merely. It affords neither proof nor argument of the amount of dam- ages. He may have estimated his damages sincerely, at a large sum, or he may not, and his having laid them at £500 does not prove that in this action he could not have recovered in the district court his real damage, now ascertained to be only £2 ; but simply that he could not have recovered there, upon this declaration. The real cause of action, and the cause of action which the plaintiff chooses to state, are very different things. The statement of damages is not a traversable allegation. If the deed set out shewed that the inferior court could not determine upon it without exceeding its jurisdiction, the case would be different ; but here is no such difficulty. In England, when a debt is sued 4br, and the de- fendant's attorney makes oath that it is under 408.^ BAOTEH lEIlU, 11 OEO. IV., 1880. 105 iwtif, " "a ^"'^'"^ '•y "■* P'^'-'iff. '«« ^legation s entertained against the record, and the conrt stav the proceedings. So they do when he sal tot rrndT^Rf "." "' '"' p^"^- " rt,V*'.i. ®* ' "'"' """"y 0*" cases shew hat the court of King's Bench receive proof of th! rue debt or damage to be recovered, in opposit on L tt r'"" ™ *' '^™"'' -^ "P™ -» beneath tteT" "' jf' ^ "»*" ■« *» ""''^ " n^:/?5- V'° P""»'<'i»g'- Then, surely, in order to give effect to this statute, »hich in ilsna" ^d vL'?.""^^ "■' '=»"' "'°^' '»'^» *" "O"^ tnding of a jury is less satisfectory evidence of the true amount to be recovered, than the affidav t of fte defendant, though uncontmdicted. The plato ff^ «%ate f P^-*^". and it cannot therefore be left to swef n J .t '"P"'"" J""*""", by his mere statement of the cause of action. Then if his laying his damages at £600 does not exclude the application of the statute, when they have been found to amount tone more than £2 what other reason is there why the plaintiff in this Juse should not be confined to district court costs, CZ obtoed no certificate, such as the statute directs^ I find no reason on the record. I see nothing in the statement of the agreement and the breJh that rf andV' ""' " '"' <»^'«««- on^distri rourt, and there is no «- on why an action of cove- "ant, in partlctto, *,,.. be «emp,«. i^Z 106 EASTER TERM, II QEO. IV., 1880. operation of the statute. There have been cases in England, and in this province, in which the judges have considered actions of covenant so frivolous that they have certified under the 43 Eliz., when the damages were small, so as to deprive the plaintiff of his costs. But then it maybe said that although there is no reason apparent on the record, why the action ought to have been brought in the King's Bench, there may have been good reasons arising from mat- ters dehors the record; undoubtedly there may have been ; and hence, in my opinion, arises the necessity for the certificate which the statute authorises the judge to give. There may have been difficulty in the case, or difficulty in bringing the defendant into court, or in compelling the attendance of witnesses from other districts, all furnishing good claim to the certificate. The plaintifl', however, has moved for no certificate, and therefrom I infer that he had none of these grounds for moving. The case, consequently, comes before the court upon a verdict of £2, without certificate, and why is not the statute to have its effect ? I see no reason. The officer, however, has taxed King's Bench costs, and to be relieved from them, the defendant prays to have the taxation revised. In my opinion it ought to be. But then it has been conceived that perhaps a sug- gestion is necessary in order to give the defendant the benefit of the act. It is plain no suggestion can be entered after final judgment— 2 H. Bl. 352 ; be- cause the record must be still open, the suggestion being traversable as to facts stated, and it may be demurred to. But if the parties were still before the court, the necessity for a su^estion does not strike BASTBR TERM, 11 010. IV., 1880. 107 me. In the numerous cases in which suggestions have been admitted to be entered, for the purpose of giving defendants advantage of the court of conscience acts, the necessity of a suggestion is apparent. Those acts expressly state that the inferior court has juris- diction when both parties reside within the countv and m some of them, other circumstances are required to give jurisdicti )n. These facts are not apparent on he record, nor ascertained by the verdict, and there- fore, as the acts, by the express terms of them, have no application, unless such facts exist, their existence n f ^f r"^ ascertained. Hence arises the necessity of the suggestion. The jurisdiction of the district court depends on no such circumstances. The nature of the action and the damages to be re- covered being shewn, the question of jurisdiction is reso ved. It is true, that if the defendant lived ou of the district m which the plaintiff in this action resides, the plaintiff could not bring him into the dis^ net court of his district; and it is held nnreaso at to compel him to follow the defendant into the district m which he happens to reside. It is true also, that If the plaintiff 's witnesses reside in different districts from that in which the defendant lives, they could not be compelled to attend by subpoena from the dis- trict court. The court, however, has jurisdiction of the action; these are mere practical inconveniences which, when they occur, prevent the plaintiff from resorting to it. and when they can be shewn to have existed, the plaintiff urges them at the trial, or imme- diately after, as his reasons for preferring the higher court, and he obtains his certificate and full costs He has but to be vigilant and not to omit to ask it' The facts are stated in the presence of both parties' 10$, EASIER TERM, 11 GEO. IV., 1880. and before a judge who has heard the merits. They can be discussed and determined at the trial with little trouble or expense, and it was then, that in my opinion, the legislature intended the point to be settled, and it is then that I have seen it settled in ordinary practice, since the passing of the statute ; and I do not see what the defendant has to suggest, or why he need be put to the expense of suggesting any thing. The cause of action and the ascertained amount constitute his case, and the plaintiff is to meet it by applying for a certificate at the trial. If he does not, the officer ought not, I think, to tax King's Bench costs. It may be said, that actions of covenant are in their nature proper for the cogni- zance of thw King's Bench, and that it is unwise to force them iftto the inferior jurisdiction ; but they are unquestionably " of the proper competence of the district court;" and since the legislature haa made the provision in question, we must give it the effect they intended; Doug. 246, Str. 46, 974, 1120, and 1 ^ 362, are cases which have appeared to me clearly to point out, that suggestions were in those cases required, for reasons having no applica- tion here. It does not strike ^ ^ u> m ''. is repug lant or insenaibie to require the ird'^w ^ certify, ia a ease when the small amount ot damages is occasioned by a large set-off, or by any other fact which, when disclosed, shews that the cause could not have been instituted in the inferior jurisdiction. That is pre- cisely what, in my opinion, the legislature meant should induce him to certify. This certificate is not w&T, ;ed for his information ; it is the mode in which he is to convey to the court above, the information which he, and not they, have had an opportunity EABTBR TBRM, 11 QfiO. IV.. 1880. Iqq Of acquiring. His finding it clear that the cause could not have been brought in the distric couTs certify. It is simply his warrant for certifvino- Sherwood, J., fully concurredwiththeae^//«,^,c.. Per Curiam.~-iI)iss.MACAVLAY, J.) Eulegraned. Ingraham v. Cunningham. In trespass de bonit asportatia an affidavit stafin» ♦!.„♦ j » j session of plaintiff -a goods, and still k«n/ ^ * defendant took pos- sufficient to warrant an ordw^o hold to & '"""'*'"*<"» tJ'weof. held An application had been made to Macauhv J at chambers, for an order to hold the defendant ' 'o bail, in an action of trespass. At his request and m order to settle t'. practice as to what araffidavU for such purpose should contain, it was moved by forth that the defendant broke into plaintiff's dwel ling house, and by force expelled him therefrom of £100. and still keeps possession thereof; stating also generally, that defendant, at the same ime as^ saulted and beat plaintiff. ' Chief JusTicE.-By the forms in use in England It seems, that m an action of trover no special state- ment is required ,- but arrest in actions of trespass seems to be very rare. If the taking possession of the goods wer. not s.^oru to, and the matter de- pended on the trespass to the person. I should think a more special affidavit necessary. But I see no no EASTER TERM, 11 GEO. IV., 1880. material diflFerence between trover and trespass de bonis asportatis. In either case the verdict would be regulated by the value of the goods. Sherwood, J. — I should think this affidavit in- sufficient to warrant an arrest for the assault only. The forms require a much more particular statement. But for taking and keepfng the goods I think this sufficient, as it is not to be presumed that defendant had a just cause for so doing. Macaulat, J. — In deference to the usual practice, I shall not object to the order going. I do not think the legislature intended to encourage arrests, but left it to the discretion of the judge to decide whether the case, as disclosed, warranted such a proceeding. This discretion can only be exercised where the facts are fully and certainly set forth in the affidavit. In 1 Archb. Pr. it is said, " In trespass defendant is not to be holden to bail, except on judge's order, in cases of very violent and cruel assaults." It is in the discretion of the court or judge, if the cause of action be attended with aggravated circumstances, and it is apparent the damages will exceed £10. This, however, is only done where good cause is shewn, and upon an affidavit of facts. 1 Sell. Pr. 36, Sid. 307, 189. In 1 Mod. 2 and 6 Mod. 230, bail was denied, though in gross batteries. In the note to Archbold's forms p. 14, it is said, " In affidavits of this description, it is merely re- quisite to sta^e the facts of the case specially as they really are, with certainty and precision, and that the facts so stated disclose a case sufficient to warrant BASETR TEKM, 11 OEO: IV., 1880, jjj the judge in making tie order required." I think hee,rcumstances should be stated as fuUy l^e L a^ "England, and the apprehension of departare from he provuice should even be more strongly Verted than in an action of assumpsit, by disedVl!: grounds of the plaintiff's apprehension ^ " Order to arrest for £100 granted. McDoUOALL V. YODNO. Debt on bond, conditioned for the mvmen. „ gjven days of the rent of certain premises C b » to defendant. Breach, th'at theTen^^^'^^^ pad Ac. Pleas Ist-that plaintiff, before thererh of the condition declared on, and before any renUe peron'C'f """"r '" ""^'"o- '» » d^Snt held sTTra."!.? '"^' '"''' ^"'"^ become due, before'ieKaSZjiT^^^^^^^^^^ mises to another person, and that when such nn -' ment ecame due defendant paid itTo the a^oTe" To these pleas the plaintiff demurred Jud^lf' was given on the last plea only. ^'"'^^ SoHciior.Oeneral.—Iu ordpr it, . x , jMrd plea, the defendant s^M l^^n Z fte assignment on which he relies waa in wrUinL herwiso it could take no ciTect, and the myment he pfeads would be perfectly nugatory, '^p he should have pleaded, that on the Ignment being 112 EASTER TERM, ll GEO. IV., 1880. made, he attorned to the assignee ; for without this, the statement is incomplete, and does not constitute a legal defence. But independently of this, it is not competent to a lessee to dispute or deny the title of him under whom he went into possession. This plea is tantamount to nil hahuit in tenemenits, which would not be sustainable in such a case ; 5 T. R. 5 No- thing can discharge the tenant from payment but an eviction. He cannot set up the title of a mortg«Qcee against the mortgagor, 1 T. R. 760, (n. a.) 3 T. R. 441, 7 T. R. 536. Spragge, contra. — The rent is incident to the re- version, and the tenant is entitled to it without attornment ; 1 Woodf. 206, 403. And although a defendant is estopped from denying his landlord's title, at the time of the demise, he is not estopped from shewing, that during the demise that title ex- pired ; 4 T. R. 682, 3 M. & S. 516, 8 T. R. 487, 2 Wills. 143, 3 Saund. 418, (n. 1.) If lessor grant his reversion, he cannot have debt for the rent, but his grantee may ; Esp. N. P. 202. In this case, pay- ment to the grantee is pleaded, which is admitted by the demurrer. Chief Justice. — The third plea is clearly sus- tainable, and the defendant is therefore entitled to judgment without adverting to the other pleas. The condition of the bond is, that the defendant will pay the rent at four quarterly periods to the plaintiff, (the lessor,) his heirs or assigns. Defendant pleads that only one payment has fallen due ; that before it became due, plaintiff assigned the premises to one Joseph McDougall, and that when the first payment EASTER TERM, 11 GEO. IV.; 1880. 113 became due, he paid it to the assignee. By law, the assignee in such a case, would be entitled to' the rent, the contract being entire, and no part falling due until after the plaintiflF has parted with the re- version ; and it is consistent with the express con- dition of the bond declared o|, that the payment should be made to his assigne". The bond is not therefore forfeited ; Cro. Car. 188, Co. Lit. 152, a. By statute, an apportionment of the rent, as to time, is provided for in some cases ; but not upon an assignment of the reversion, and the whole rent was, in this case, properly paid to the assignee. Sherwood, J., and Macaulat, J., concurred. Per Cwmwi.— Judgment against the demurrer. Benham v. Shaw. In Michaelmas Term last, a rule nisi for judgment, as in case of a nonsuit, had been granted in this cause, for not going to trial at the preceding assizes, pursuant to notice ; which rule was discharged at the instance of the plaintiff, on the terms of his paying the costs and entering into a peremptory undertak- ing, to go to trial at the next assizes.— And the court now, on motion of King, made the original rule absolute in the first instance, on the ground that the plaintiff's own laches had deprived him of the oppor- tun i ty of discharging the rule, {a) Rule absolute. (a) See C. L. P. Act, 1850, see. 151 ; ComoI. St»t., U. C, oh. 22, sec. 227. 114 BASTBR MRM, 1], (JBO. Vf., 1990. The Kino v. The Justicbs ojp Newcastle. A writ rfcmwnwtwill U9 to remoTo orders of sesaioiu reUtinar to the et S^hirnf'tSl p'""* rateeand M8e«ment»; »>d the AtSy-aSewl^ behalf of the Crown, has a right to have it isBued. "'""to, on The Attorney-General, on behalf of the Crown, applied for a writ of certiorari to remove all orders, rates, assessments, iaccounts, &c., had before the justices of the district of Newcastle, since the 1st of January, 1829, touching, or in any wise concerning the erection of any building as a new gaol or court house, within the said district, &c. Argued— that all orders respecting building a new gaol affect the public money of the district, and the King is inter- ested in its being legally expended. A certiorari is the first step to bring up the proceedings to see if they are right or wrong.— 4 Burr. 2458. There are many instances of removing orders of sessions, even when parties are concluded by statute ; for the Crown is not affected, unless particularly mentioned -Ld. Raym. 580; 5 T. R. 279; Doug. 116. The court would not, perhaps, interfere in any order, the sub- ject matter of which is left to the discretion of the justices ; but when they have no authority, the court clearly wiU control them. As this application is on behalf of the Crown, no notice is necessary. The general principle is, that whenever the Crown thinks necessary, it can remove proceedings, because that is the first step the Cfown takes to litigate its rights —1 Ea. 303; 4 M. & S. 447 ; 2 T. R. 89 • 4 T r' 6W, 161 ; 2 M. & S. 321 ; 2 Ea. 244 ; 15 Ea. 333. " After taking time to consider, the opinion of the court was delivered by the Chief Justice.— This application, with reference BASTEB IE«M, II OR), IV., I8S0. UJ to the natnre of the order sought to be removed is »™ewhat new In this p™,f„ce, though not al tately without precedent. It i, an i»%rta„t ca«e, aware iifom statements in atgnment, that great in- convenience m ght follow onr decision, whether we awaMed or denied the writ.(a) Upon fall exami,^! t.«n wehave feU onr»>Ives compelled to gmnt ?he ta by the ^«^^.G«^««n complied with, which declare that no order of sessions shaU be remoTcd by cert,orari, unless the writ be applied for wi hm SIX months from the order being i and unless six days' notice of the inte„ded™cat,w be giren to the Justices, that they may be prem eS to resist the motion in the y the post road between the road betweeu the .wo places, iL Jg^J LC of the lake wh.eh ia practicable at ill times andtv wh,ch ^oad the mail is sent regularly thoXttJe uTmr Tir t^,i:2\r """^'^ places is onlv L T' ***® ^'^^"ce between the two schooners and steamboatfpassing antTet^ir Z among them a steamboat called the TnT^ ?' ^ Which is a 1^. for letters. 4^ I'Z^ Z ^ of the Postmaster-General, who hL direcM hi, depufes, and the defendant in particula tot Ji' that arrangement. Letters put iSo the p^ t X 118 EASTER TERM, 11 QEO. IV., 1880. at either place, directed to the other, would, accord- ing to the ordinary course of the post, be sent by land and not by the boat -, the latter mode of con- veyance being an accommodation offered to such pei-sons as choose to take advantage of it by placing their letters in the box kept in the boat ; which let- ters, on the arrival of the steamboat, are taken to the post office, and from thence distributed in the same manner as if they had been conveyed by the ordinary land route. The captain of the steamboat is paid by the deputy postmaster at the rate of 2d. for each letter conveyed by him and delivered into the Office upon his arrival. The Postmaster-General has directed the same rate of postage to be charged upon letters so conveyed as if they had been carried by the post on the land route between the two places : the differerce of the distance, one route being 35 miles and the other 110, was admitted. A corres- pondent of the plaintiff being aware of all these facta, put into the box on board of the steamboat Canada, at York, a single letter directed to the plaintiff at Ni8£;»ra ; he did not take it to the post office at York, but took it himself to the boat. The plaintiff received this letter from the post office at Niagara, and a charge of 7d. being exacted upon it, he paid it to the defendant; but contending that such a charge is illegal, he brought this action to recover it back^ and a verdict was rendered for him by consent, with 7d. damages ; subject to the opinion of the court upon the question, whether the defendant, as a deputy postmaster, had a right to exact the same rate upon a letter, conveyed in the manner described, by the steamboat from York to Niagara, as upon a letter conveyed by post on the land roac^. If be it..'*'"' *"■ ««' -«"•«' '0 be entered f„. to tlie general scale nf I.. ''^ ""'**■ a<»ordiog be for plaintiff, with 7d. ^T '"""" *" «^<" for the deLt.t-a,d C t***-^"""'^- o»»rt was delivered this term ^te "'"'"" "' '^^ We do not aiink iTn!! "^ «"'*™' '"te«st. ably urged on the part of the rJ^m I ^ *"""• or to esunine the deducHori»f '^T'""'""' from them, beW„,e in o„r \^,^'f T *" *""" question lies in « i.»rr„„ *° ""^e, the consider onl^es at liZw""'*"' ™'' "" <"> »»' consideration,*^ fte ri4 " ^^ """ '^^ »*- which has been ackno vlS t '^^ *' ""^ been exacted Tli« Wn„« ^ J? *'^ "**« 'o have points retoUng to^e Sft 1 "^"""^ '^'^- "P™ 2149, 2709^5; mi are 'th nT"" 'f ' * '"'"■ ^' ^^^ ^'^^ pwucipal They do 120 EASTER TERM, 11 GEO. IV., 1880. not meet the circumstances of this case, but they are nevertheless decisive of the present question ; because they recognise the application to this par- ticular department of the public service, of a general principle of law, which we are of opinion must govern in this and in all similar cases ; which prin- ciple is, that clear legal authority muet be shown for a rate exacted from the subject, the rate being in the nature of a public imposition, and professedly demanded under puolic authority for public pur- poses. We are, therefore, to enquire whether the charge made in this case of 7d. for the conveyance of a letter 35 miles be warranted by any of the acts of parliament relating to the post office. If it be, there is no longer a quest; n- as to the right to exact it. If it be not, then we think it can stand on no other foundation, and the defence must necessarily fail, because, in the first place, we cannot look upon this question as raised upon a contract, express or implied, between the parties as individuals ; and, in the next place, it is not pretended that a regulation, inconsistent with the acts of parliament, either has been made or could have been made by any oth^r authority. We have carefully examined the various acts relating to the post office, and we find no pro- vision that in our opinion can be made to sustain the charge. Except for the purpose of illustrating the intention of some of the clauses of 9 Ann, c. 10, and 5 Geo. III., c. 25 ; no other statute need, we think, ba resorted to, in order to ascertain the autho- rity for this charge. The most material general regulations respecting the post office still exist in the statute 9 Ann, and the scale of charge for the colonies which that statute prescribed having been MSIER TBBM, „ OBo. IT., ,880. igj UlTh^f/V^ "■" '^'^ """"'■=''»d by the 5 Geo m., those two statutes taken together exh,h,r.i, wte'herJ! :re7r^ ""^'""^ «'"'«" »""-''- Chief Justice) ' '^ "''""°'''"''' "P°» "-y the For the inland conveyance of letters n„ ... , charge can be found in the st»t,, Jo ' *'* "'^ SttiHSS-r^-^ d^-stance upon the postZr^i ^tsld^s t'h' general pjwisions on this headfn the 2d sec 6 Geo Dacke*9 fho r. J • • "•'^ **®'°S post-office packets, the provisions of which, as well as of *^! .avTetrertCrdSr.^^^^^^^^ We considerations of cil.sS.Tthe'aS"'t of any ^press legislative provision ,„ the eont;;: 11 'rt f h'*:^ ■if4ir 122 EASTER TERM, 11 GEO. IV., 1880. the actual port of the letter determines the charge. The discretion allowed in some cases by 41 Geo. III., c. 7, sec. 5, is for a different purpose and under dif- ferent circumstances. On the whole, we think it clear that a letter, con- veyed by the post from one post town to another, in this province, must necessarily be considered as having been conveyed by sea or by inland convey- ance. We do not consider it as having been carried by sea, although it has been conveyed by water, and if we did so consider it, we should then be compelled to decide that the rate would be limited to 4d., by the 5th Geo. III. We regard it as having been car- ried by inland conveyance, and we consider that the rate is limited by the distance the letter has been carried ; that distance is admitted in this case to have been thirty-five miles, and it therefore becomes unne- cessary to consider the necessity of applying the cri- terion of actual measurement, which pai'liament may be thought to have indiscriminately required to be applied when the distance is in question. Whether even a rate proportioned to the distance may be im- posed, was another question made at the trial, and we have thought it necessary to give consideration to that point also ; because it was contended that the letter, not having been put in the post office, in the ordinary manner, no rate whatever couM be legally exacted. We have not arrived at that conclusion, because we find it in several statutes contemplated, that collections of letters may be made by the Post- master-General and his deputies, to be sent by vessels not belonging to the post office ; and because we find it no ^here enacted that letters shaU be taken JASTER TERM, 11 GEO. IV., 1830. 123 to the post office in the first instance. It is admitted m this case, that the Postmaster-General pays a cer- tain charge for conveying the letters ; he therefore procures them to be carried, and ultimately they are received and distributed by him or his deputy; and a responsibility unquestionably rests with the depart- ment, from the time the letters are deposited In the box. Whatever, therefore, be the legal charge for carry- ing a letter thirty-five miles by inland conveyance m this colony, that rate, and not more, we all thinki ought to have been exacted in this casej and for the excess that has been charged, the plaintiff in this cause may enter up judgment, (a) Per Curiam.— Judgment for the plaintiff. Doe on the demise of McParlane v. Lindsay weU aa their children^, to Kn'; i^;:;' e^U ^^,5'?^ ?^^^^^^ " BjEOTMENT.~At the trial, a verdict was rendered for the plaintiff, with leave to defendant to move to set It aside, and enter a nonsuit on the foUowine pomts-lst. That it was not proved that John Gar- diner under whom the lessor of the plaintiff claimed and John Gardiner, who took the^athofallegiance' t«t. within-.yo;t town or See It Srr/l«r '" '." '^^ T l"' "''»«- rate of postage^ « estlbttd'^ a^^orprrSl"" °' ''"^'' ** """ 124 EASIER TERM, 11 GEO. IV., 1880. as proved, were the same persons. 2d. If the iden- tity were established, there is no proof that the oath was administered by one having authority. 3d. If the oath were administered by one having due autho- rity, the provincial statute of naturalization does not extend to legalise the claim of the lessor of the plaintiflF, holding under the deed proved, Gardiner having died before the passing of the act. The lessor of the plaintiff claimed under a deed of bargain and sale, from John Gardiner, who was alleged to be the heir at law of one Richard Duncan, deceased. Rich- ard Duncan held the premises under a grant from the Crown, and John Gardiner was in the peaceable possession of them, when he conveyed to the plain- tiff. John Gardiner was admitted to have been a citizen of the United States, and an alien, when he first came into the province, about ten years ago— but it was alleged he took the oath of allegiance about eight years ago, before Solomon Jones, a commis- sioner for administering the same in the district of Johnstown. It was further admitted and proved, that Solomon Jones and John Gardiner had both been dead for several years before the action was brought. In Michaelmas Term last, BidweU shewed cause to a rule nisi, obtained by the Attorney-General, to set aside the verdict and enter a nonsuit. He urged, on the first point, that as there was good evidence to go to a jury, of John Gardiner's identity, by shewing that he lived in the same neighbourhood with Solo- mon Jones, the commissioner, and as it was not proved that any other John Gardiner resided in that neighbourhood, the finding of the jury rendered any EASTER TERM, II GEO. IV., 1830. 126 further discussion on that head unnecessary. On the 2nd. It was proved that Solomon Jones acted, both as a commissioner, as well as a justice of the peace or several years This is good evidence of authorit; as between third parties, and where their interests only are at stake. It raises a sufficient legal pre- sumption to warrant the finding of the jury 3d It was proved that Gardiner lived in this province when the oath of allegiance was taken by him and remaned a resident till his death. This case is cl'early included m the third description, contained in the first clause of the Naturalization Act. The benefit given to the children and other descendants of such persons forcibly points out this as the true construe tion. This is a remedial statute, and should conse- quently receive a liberal construction. SolicUor-General, contra.-The statute is not reme- 11^ II 'T I '"''" privileges, and must be con- strned strictly-Bac. abr., Title Statute. The fact proved that a certificate, signed by S. Jones, of his having administered the oath of allegiance t; John Gardiner, was found among the papers of Gardiner under^homthelessoroftheplaintiff claims, amounts to nothing-for the certificate is no evidenc; that (he oath was admmistered-~l Star. Ev. 106 294. 2 ^ar Ev. 362 ; Doug. 173. Where an oath is ref;r? red to as taken, the oath itself, or a copy at least must be produced. And the death of S. Jones cannoi alter the question ; for he neither had, nor could have had power to administer it. The statutes, which give the power of administering the oath of allegiance o„*kr~7' * " ?'^''"^''''« any delegation of that authority to commissioners. By the 13 Geo. II., m H" "^1 '^-i 126 EASTER TERM, 11 GEO. IV., 1880. c. 1 ; 20 G6o. II., c. 44 ; and 30 Geo. III., c. 27, the Otief, or other Judge, Governor, Lieutenant- Governor, or Chief Magistrate of the place where the party seeks the benefit of the act, liiay administer this oath, and to them the power is confined. As to the 3rd point, it is only necisssary to compare the 1st and 15th clauses of the Naturalization Act, to see that persons who died before it passed, are not within its purview. Sherwood, J., this day delivered his opinion — (after stating the case.) It was left to the jury on the evidence to determine whether the John Gardi- ner of Williariisburgh was in truth the same John Gardiner whose name appeared in the commissioner's certificate. They ha/e found he was — and I think their finding is conclusive on the first point. As to the 2nd point, it appears by Stokes' view of the bonstitutiott of the British Colonies in North . America and the West Indies, 149, that in every provincial establishment, or King's government, the Governor is the representative of the King. He also gives the form of a commission to the Governor of a province, in which appears an authority to appoint fit persons to administer the oaths mentioned in the Ist Geo. I., c. 18 ; among which is the oath of alle- giance, and I have no reason to suppose that the King's commission to his Governors of provinces has been materially altered, in point of power or form, since that period. That the Governor, or Lieutenant- Governor, has ample power and sufficient authority to appoint persons to administer the oathof allsgianrft within this province, I have not the least doubt; and :i|:i{«:;'^ : r EASTER TERM, 11 GEO. IV., 1880. 127 I believe the legal proposition is too clear to admit of argument. Without alluding to the terms of his commission, I think, as the reprsentative of the King, he possesses this power, and I have no reason to think his commission qualifies the power. Taking it for granted, therefore, that the Governor has the power of appointment, I proceed to the principal part of the question, viz .-—whether the commissioner had due authority. It was proved at the trial, that Solo- mon Jones acted as a commissioner for administering the oath of allegiance, and as a justice of the peace, m the district of Johnstown, for many years before this action was brought, and no evidence was adduced by the defendant to show that he was not legally authorised to fill either of the situations. Now the general rule of law, applicable to the acts of public officers, is this, ''omnia presumantur esserite et solem- nitur acta donee probetur in contrarium;" and the principle is fully recognised in the following cases, as well as in many others :— 4 T. R. 366 ; 1 Leach' 66, 615. lam therefore of opinion, that as there was no evidence against the legal presumption raised by the acts of Solomon Jones as commissioner, he must be taken to have acted in that capacity under a legal appointment, so far as relates to the present action. At the trial of the case, an objection was taken by the counsel, respecting which I entertained much doubt, and although the objection was not contained m any of the points reserved, it was again made in the course of the argument in Bank, and is quite \79rthy of consideration. The counsel for the defen- dant alleged, on both occasions, that the certificate, which was prov«d to have been whoUy in the hau^- 128 EASTER TERM, 11 GEO. IV,, 1880. writing of Solomon Jones, was only hear-say testi- mony, and could not come within any exception to the general rule of law, that mere hear-say evidence is not admissible, when unsupported by other testi- mony, which might be considered suflScient to lay a foundation for its reception. If this be a valid excep- tion, then there is no legal proof that John Gardiner took the oath of allegiance, and it therefore becomes necessary to examine what weight the objection in reality possesses. The statute of this province, com- monly called the Naturalization Act, and assented to by the King in council, requires by its first section, that the descriptions of persons therein mentioned should be proved to have taken the oath of allegiance before a person duly authorised, before they should be deemed to have been natural-born subjects of the King. John Gardiner was a person of that descrip- tion. The statute does not require the oath of alle- giance to be subscribed by these persons; the taking of it is sufficient, unless there be some other law to make the subscribing of it necessary. By the 1st Geo. I., c. 13, all persons holding offices, except parish offices, are bound to take and subscribe the oaths mentioned in that act; among which is the oath of allegiance. But I am not aware of any law requir- ing private individuals, holding no office, to take and subscribe the oath of allegiance at any time, unless they be specially required to do so by some autho- rised officer. John Gardiner was not required to take the oath. He did it voluntarily and with a view to his own interest or convenience, and not for the performance of a mere public duty. In my opinion he took the oath precisely in the same manner, and with the same intention of gain, with which applicants EASTER TERM, 11 GEO. IV., 1880. |29 to the executive government for land are in the habit of taking the oath of allegiance. It is a matter of public notoriety, that for more than thirty-six years laat pa. of the making of the same, shall be within the same remedy that the statute provideth, and the reason hereof is, for that the law makers cannot possibly set down all cases in express terms." " 'jEqidtas est con- venientia rerum qucs cuncta cocequi parat, et quce in paribus rationibus paria jura et judicia desiderata " "The statute of Gloucester," (he says in 54 b.) " which giveth the action for waste against the lessee for life or years, (which lay not against them at the common law,) speaketh of one that holdeth for a term of years in the plural number, and yet it ap- peareth, by the authority of Littleton, (sec. 67,) although it be a penal law, whereby treble damages and the place wasted be recovered, yet a tenant for half a year, being within the same remedy, although EASTER TERM, 11 GEO. IV., 1880. 135 it be out of the letter of the law, for 'qui hesret in litteraharetincortice,' which is an excellent example whereupon a man may in many like cases settle a certain judgment." The intention of the legislature is the best method to construe the law, even in penal laws, 8 Mod. 65. The preamble is a good means for collecting the intent— Com. Dig. title Parliament R. 11. I have made these few quotations from the great mass of authorities which may be found in the books upon the same subject, to shew that a remedial law, under which denomination I have already said the Naturalization Act comes, should receive a liberal construction, in order to carry into the fullest effect the intention of the law makers, and I ^vin now proceed to the examination of the statute. The preamble is in the following words :— "Whereas, it is expedient to remove by law doubts that may have arisen as to the civil rights and titles to real estates of some of the persons hereinafter mentioned, and to provide by some general law for the naturaliza- tion of such persons not being by law entitled to be regarded as natural born British subjects of His Majesty, as are actually domiciled in this province." It is evident, because the legislature say so, that they intended, amongst other things, "to remove doubts as to the titles to real estates," of some of the persons mentioned in the act. Now there are two classes of individuals alluded to in the first and second sections of the act. The first class, as stated m the first section, embraces the following descrip- tions :— all persons who had received grants of lands from the Crown : all persons who had held any public office in the province under the authority of the executive government : all persons who had ri: f,4 I. ^m (I 136 EASTER TERM, 11 QEO. IV., 1880. taken the oath of allegiance before any one duly authorised to administer the same : and all persons who had their settled place of abode in this province before the year 1820, and were resident in the same when the law was made. The second class as men- tioned in the second section, includes all persons domiciled in this province on the first of March, 1828, (not being of any description of persons men- tioned in the first section,) who have resided or shall continue to reside seven years in this province, or in some other part of the King's dominions. After enumerating the persons mentioned in the first section, the enactment of the legislature in that part of the act is in the following words, respecting all of them, and declares that they "shall be and are hereby admitted and confirmed in all the privileges of British birth, and shall be deemed adjudged and taken to be, and so far as respects their capacity at any time heretofore, to take, hold, possess, enjoy, claim, recover, convey, devise, impart or transmit any real estate in His Majesty's dominions, or any right, title, privilege or appurtenance thereto, or any interest therein, to have been natural born sub- jects of His Majesty, to all intents and purposes whatsoever ; as if they and every of them had been born in His Majesty's United Kingdom of Grreat Britain and Ireland ; and that the children or more remote descendants of either of the foregoing de- scriptions, who may be dead, shall be and are hereby admitted to the same privileges, which such parents or ancestors, it' living, could claim under this act." The legislature further enact, in the second section, that the persons therein mentioned "shall be deemed, a<^udged, and taken to be, and so far as respects BASTEE TERM, 11 GEO. IV., 1830. 187 their capacity at anytime hereto/ore to take hold possess, enjoy, claim, recover, convey devise im^ part, or transmit any real estate in this province or anyright. title privilege, or appurtenance ther;" IS '?^ J^''''"' '" ''"^^ *^^« "«*»r^l born subjects of His Majesty, to all intents, constructions, and purposes whatsoever, as if they and every oi' them had been bora within this province "-with a proviso, that the persons mentioned in the second section shall reside seven years in this province, wifhilt' '''^"^ '"'^'""^^ (^^^^Pt females within three years after attaining the age of sixteen years It appears to me the legislature had two objects in view with respect to the persons alluded to in the first section of the act, who had taken the oath of allegiance before the passing of the act. The hrst was, to mnke such of them, as were alive when the lav .ssed, natural born subjects, and to be deemed ,ad adjudged as such from the day of their birth, 1 3 all intents, constructions, and purposes whatsoever, us If they had been born in Great Britain or Ire and Whoever reads this section with attention, I think will readily admit that it is decidedly retros^ pective in its provisions, and that all those who were ahve when the law passed, and had takm the oath were, m the eye of the law, really and truly natural bora subjects; for I take it for granted nn one doubts the power of the legisgature to produce this effect rhe legislature may do any thing that regards legis- lation, which is not altogether impossible from the nature of our constitution. This certainly 13 not After the legislature had made natural bora British subjects of such persons as to^*"* «]••*- -^- - act passed, and they were in considet^tion and 11 tit: 1* f 138 BA8TBR TERM, 11 GEO. IV., 1880. judgment of law to be taken to have been born in Great Britain and Ireland, just as if they had in fact been born there, nothing further was necessary to be done for them; they always had a right to hold real estates, and their titles were free from the objection of alienation, and so were the titles of those who had purchased from them or ac- quired any real estate from them by other legal means. There was no necessity for the legis- lature, therefore, to go any further for the benefit of those people who were alive, than the making of them natural born subjects from the day of their birth. Still, they have gone further, in my opinion, and I will endeavour to shew that the reason for so doing was to confirm the titles to real estates of those who had taken the oath of allegiance and were supposed to be dead at the passing of the law, that their children might have their just rights, and that honest purchasers might not be defrauded. These, it must be admitted, were objects worthy of a legis- lature, who wished to promote the peace, welfare and happiness of the province. To settle and con- firm the title to real estates of men who came into the province with the intention of becoming British subjects, who had resided long in the country, and who had in the most solemn manner manifested their determination to become members of the great family of Britain, by taking the oath of allegiance to her Sovereign, and by joining themselves to the number of his subjects, was a moral, political and public duty. Justice as well as policy required the measure. To attain this object completely, it was equally necessary and proper to confirm the titles to real estates of such men who were dead, as of EA8TBE TERM, 11 GEO. IV., 1880. 139 those who were living. The comnmnity at large were alike interested in both, because the titles of heirs and purchasers, in proportion to their num- bers, were as much concerned in the one case as in the other. The legislature clearly prove by their own words that it was their intention to confirm and make valid the titles of all the descriptions of persons mentioned in the first section of the act, who had taken the oath of allegiance, without discriminating between those who were dead and those who were living, and without regard to the time their estates were acquired. They certainly were not unmind- ful that some of the persons described in the first section might be dead, because they expressly re- cognise the possibility of such a contingency, and secure to their children the privileges of British subjects. The words of the statute which relate to the descendants of those who were dead are the fol- lowing:— "And that the children and more remote descendants of any person or persons of either of the foregoing descriptions, who may be dead, shall be and are hereby admitted to the same privileges which such parents or ancestors, if living, could claim under this act." The thirteenth section of the act is in the following words, and relates exclusively to the persons mentioned in the second section— " That if any person, not entitled to be regarded as a natural born subject of His Majesty, who, at the time of the passing of this act, was domiciled in this province, shall die before the period limited by this act for his taking the oath according to the pro- visions^ thereof, such person shall be, nevertheless, deemed to have boon a natural born subject of His M^esty, so far as regards the taking, holding, im- 140 EASTER TERM, 11 GEO. IV., 18S0. parting and transferring of any real estate by grant, marriage, dower or inheritance." Now, unless the legislature designed to confer greater privileges on the persons mentioned in the second section of the act, who should never take the oath of allegiance, than they wished to secure to the persons mentioned in the first section of the act, who had actually taken the oath, I think it quite clear they intended to con- firm the titles to real estates of the latter, as fully at least as of the former. It would be unjust to suppose the legislature would give a preference to the unde- serving class ; and, in my opinion, the whole tenor of the law goes to prove the reverse of the pro- position, and to show their unvaried solicitude to secure to every one of the persons mentioned in the first section, who had taken the oath, the lull eiyoy- niont by themselves, their children or grantees, of all their real estates, unaccompanied with any doubt of the validity of their titles. The obvious meaning of the expressions in the preamble of the act — " To remove doubts as to the titles to real estates of some of the persons hereinafter mentioned," is to show an intention of confirming all such titles as the act manifestly admits to be just and necessary to confirm. Could any thing be more just and necessary than the confirmation of the titles of men who had taken the oath, and who bad lived and died in the province ? But it may be said that the act does confirm the titles of such men, by admitting their children to the same privileges which their parents, if living, could claim under the law. The children, it may be asserted, can inherit, but grantees from the pa- rents cannot hold. If the parents are considered to have been natural born subjects, ao far as r«Utes BA8TBR TBRM, 11 GEO. IV., 1830. 141 to the holding and transmitting real estates, as I thmk they must be according to the words of the act then both children and grantees can 'hold their estates, but if they are not considered to have been natural born subjects to the extent before mentioned /,!,'?."' '^"^'"^ °°' ^'^""^^''^ i« ^y opinion! can hold their real property. It therefore becomes necessary to enquire what privileges such parents could claim, ,f living, so far as relates to real estates. The legislature have said they should have the capacity of "taking, holding, possessing, enjoy- mg, recovermg," &c., any real estate, in the same -^er as if they had been natural born subjects '. His Majesty. Then the question arises-can a natural born subject inherit to an alien ' The law of England on this question may be read in Co. Lit 2 B. and in Plowd. 229 to the same effect-" If an alien purchase lands to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee r^ '. n ."'* *^ ^'^^ ' '■«'• "P«^ office found, the King shall have it by his prerogative of whomsoever he land is holden. So it is, if the alien do purchase land and die, the law doth cast the freehold and in- heritance upon the King.'- It appears, therefore, if an aaen die holding real estates, the King imme- d^ately takes his land without office found or in other words, the freehold by act of law becomes vested in the King. The statute declares the Z- dren shall be admitted to the same privileges which he parents could claim under that act. The parents, 'f living, could not claim to inherit to aliens con sequently their children cannot inherit to th;m if nZJr "^''Z' '"^' ''''''''' '^' ^'^ ™a^e thm natural born subjects when living, it is not denied 142 EASTER TERM, 11 GEO. IV., 1880. they were aliens. If, indeed, the parents are not to be deemed and taken to have been natural born subjects, so far as respects the holding of real estates, then the inconvenience in society will be almost in-» calculable. It may be said, however, that an argu- ment drawn altogether ah inconvenienti is by no means conclusive, and this I readily admit ; but still such arguments are allowable, to assist in determin- ing the true balance of the scale, when the law is not perfectly clear and explicit in its language. In the 1st Inst, this kind of alignment is noticed. The text is as follows: — "Argumenfum ah inconvenienti est validum in lege quia lex non permittit aliquod incon- veniens^ And the law that is the perfection of reason cannot suffer any thing inconvenient. It is better, saith the law, to suffer a mischief that is peculiar to one, than an inconvenience that may pre- judice many. When the words of an act of par- liament are plain and clear, so as to admit of no doubt, convenience or inconvenience is out of the question; because the court must be governed by the principle of the law, and not by the hardship of any particular case; but the act now under consider- ation is not perfectly plain and clear, and therefore the last quotation may properly be applied to the present case, so far as it may be deemed consistent with known principles. If the persons described in the first and most important section of the Naturaliza- tion Act, who had taken the oath of allegiance and were dead when the act passed, are not considered to have been natural born subjects to any purposes whatever, the children, as I before said, cannot in- herit. The law, as T think, i?. nnt so ; but confirms the titles of the parents in the manner I have before EASTER TERM,:n GEO. IV., 183u. 143 stated. This is the conclusion at which I arrive from a consideration of the following particulars :~ the words, tenor, and scope of the whole act taken together-the intention of the legislature, manifested by the justice and equity of their apparent induce- ments m making the law-and the public incon- venience and hardship inevitable, from the construc- tion contended for by the defendant. This act in my opinion, should be allowed to have its course and ought not to be interrupted by objections of trifling slips or doubtful ambiguities in its diction or arrangement of matier, and should receive an equitable and liberal construction, particularly on account of its being a remedial law. My opinion is that the legislature, by the first section of the act' confirm the titles to real estates of all those persons who took the oath of allegiance and died before the making of the law. and that all such persons are to be deemed and adjudged to have been, when living natural born subjects of His Majesty, so far as respects their capacity, at any time before their death, of holding, conveying or transmitting real estates, to the same extent as if they had been born m Ureat Britam or Ireland. Chief Jusike and Macaulay, J., gave no opinion. Postea to the lessor of the plaintiff. 144 EASTER TERM, 11 GEO. IV., 1880. M'NaB V. BiDWELL AND BALDWIN. The House of Asgembly in this province have a constitutional right ts call persons before them for the purpose of obtaining information, and if the Honse adjudge tbe conduct of such persons, in answering or refusing to answer before a select committee to be a contempt, they have the right of imprisoning them. Trespass and false imprisonment against the Speaker and another member of the House of As- sembly. The Speaker pleaded, that he was a mem- ber of the House of Assembly in this province, and Speaker of that House at the time when, &c. That the Assembly being then in session; it was by them resolved that the present plaintiff, " having refused to answer questions put to him by the select com- mittee appointed to enquire into the Hamilton ouc- rage, and the t'leged threatened release of Francis Collins by force, with po .yer to send for persons and papers, and otherwise misdemeaning iiimself before the said committee, had been guilty oi a high con- tempt and breach of the privileges of the House of Assembly;" and that it was therefore further resolved and ordered by je said Assembly, "that the Speaker should issue his warrant, directed to the Sergeant at Arms or his deputy to apprehend the present plain- tiff forthwith, and bring him to the bar of the said House on Monday, then next, to answer for such contempt and breach of privilege." That the de- fendant, as Speaker, did 'issue his warrant, in pursu- ance of these resolutions ; particularly reciting the proceedings of the Assembly on which it was grounded, and requiring the Sergeant at Arms to ap- prehend the plaintiff forthwith, and bring him to the bar of the House of Assembly on a day therein named, to answer for such contempt and breach of privilege. That upon this warrant the plaintiff was EASTER TERM, 11 GEO. IV., 1880. 145 apprehended and brought to the bar of the House of Assembly ; that the resolutions of the Assembly were there read to him, and he having been heard m his defence before the said House of Assembly respecting his said contempt and breach of privilege It was by the Assembly resolved and ordered, that for his said contempt and breach of privilege he should be committed to the common gaol of the Home District, during the pleasure of the House, and that the Speaker should issue his warrant to the Sergeant at Arms or his deputy, and to the sherifiF or gaoler of the Home District, requiring the Sergeant at Arms to take the i-Iaintiff to the said gaol, and the sheriff or gaoler to receive him and keep him in custody during the pleasure of the House. That the defen- daut, as Speaker, did, while the House was still in session, make his warrant, in pursuance of this re- solution, which warrant, before being signed by him was read to and approved by the House— the war^ rant is then set out, containing a precise recital of the proceedings on which it is founded, and being exactly m accordance with the resolutions of the House. The defendant farther states, that upon that warrant the plaintiff was apprehended by the Sergeant at Arms and delivered into the custody of the sheriff of the Home District, who received him and detamed him during the pleasure of the House of Assembly, from the 16th February to the 3rd March in the same year, in obedience to the resolu- tion, order, and warrant last mentioned; and that during all the time mentioned the parliament was still sitting. The other defendant, (Mr. Baldwin,) pleaded specially, relying on the same facts and privileges, and setting forlh that he was a member » 146 EASTER TERM, 11 GEO. IV., 1880. of the Assembly, and sitting and acting as such, and in that capacity assented to the resolutions ordering the warrants for the plaintiff's apprehension and commitment for contempt, after plaintiff had been heard in his defence at the bar of the House, and adjudged guilty of the contempt. To these pleas the plaintiffs demurred generally. This case was argued last term at great length and very ably by the Attorney-General for the plain- tiff, and Rolph for the defendants. The judgment of the court, however, embraces every matter of importance fhich was raised and discussed, and was this day given. Chief Justice. — As a mere legal question, the point in this case seems to me to be so free from difficulty that it is unnecessary to labour it, and I shall not consider it, in its several branches, with that minuteness which would be proper if I enter- tained doubts on the subject. Whether in any par- ticular case that may be under discussion in the House of Assembly it may be expedient or just to dispose of it there, and those opinions may proceed upon considerations which the members of that body and they only can entertain. But whether the As- sembly, as a branch of the legislature of this pro- vince, have power to commit for a contempt, in a case like the present, is altogether a different ques- tion, and when it comes for decision here, it must be decided on strict legal principles, and wholly apart from all other considerations. The justification in this case would have been morQ strictly formal,, EASTER TERM, 11 GEO. IV., 1880. 147 If It had given to the legislature of this province, and to that branch of it whose powers are in question the precise designations assigned by the British statutes, which create iheni. The term " parlia- ment," regarding merely the import of the word may perhaps be correctly applied in reference to the nature and functions of our legislature, as ii i, cer- tainly applied to councils of far inferior importance and It IS certain that the term has grown into use in this province, and has the direct sanction of manv of the acts of our legislature, but it would have been more technically proper, I think, on such an occasion as the present, to have preserved the precise names assigned to our legislature and its several branches m our written constitution— and in calling the re solutions of the Assembly, which is but one branch of the legislature, the resolutions of parliament as is done in one of the special pleas, there is certainly an inaccuracy which would have been better avoided The substantial defence, however, is before the court on this general demurrer, and it is upon gene ral principles of the law and constitution that the question has been argued. If, in consequence of a similar commitment by the House of Commons an action of trespass against the Speaker and a mem- ber of that House were depending in the court of King's Bench in England, it cannot now be doubted for a moment, that it would not and could not be sustained. Many authorities have settled that point conclusively, and whether the right to commit for such a contempt should be questioned upon the re- turn of a habeas corpus, or as in the present case in an action of trespass, it is certain that the court of King's Bench would disclaim the power, either to us EASTER TERM, 11 GEO. IV., 1880. discharge the prisoner, or to examine into the par- ticulars of the alleged contempt, with the view of affording the party a remedy by action for his im- prisonment. They would decidedly hold, that for a contempt offered to the Hoise in session, the offending ^wirty might be committed by order of the House. I cannot imagine that any distinction would be drawn betwc n a contempt alleged to have been offered to a committee of the House, or a contempt offered to the House in a body, j».ud I am convinced that when the House had repoived that refusing to answer questions proposer' by a committee was a contempt of the House and a breach of their privi- leges, the court of King's Bench would not question the propriety of that decision. It is equally clear that no exception would be considered to lie to the warrant of commitment on account of the general nature of the charge, "that the party had otherwise misdemeaned himself before the committee." On the contrary, the court would disclaim, as they have always disclaimed, the power of enquiry into the particulars of the contempt— Ld. Raym. 1105 ; 1 Mod. 158. They'would, therefore, hold it needless to specify a matter into which they could not examine, and as the charge that the party had "otherwise misdemeaned himself before the committee of the House " might include contempt of a very flagrant description, they would rather think it reasonable to infer that some such contempt had been commit- ted, than to presume that the House of Commons had gravely imputed an offence where none existed. The cases in 3 Wils. 190 j and 14 Ea. 1, are most explicit aid conclusive upon these points, and the judgment of Mr. J. Bailei/, in the last case, shews i& BASTEE TERM, 11 OBO. IV., 1880. 149 very clear and strong terms ho^ contrary it would be thought in England to reason and to law that under such circumstances as are stated in this record the bpeaker, who simply carried into effect the re- solution of the House, and much more an individual member who merely voted upon it, should be held responsible as trespassers. It is unnecessary here to reason upon the decisions adverted to or the eases which are cited in them ; they establish nothing new with respect to the doctrines of contempt, either as applied to the House of Commons or the courts of justice, but the elaborate judgments of the court and particularly of Lord Eiienboroug/i, in 14 Ea are so full, and to my mind so satisfactory, that notwith- standing the apparent danger of entrusting to anv tribunal the power which is the subject of discussion in these cases, the arguments proving its necessity seem to me unanswerable in every point of view. We are then driven to the question, whether there IS, m the jurisdiction and constitution of this court or in the nature and powers of the House of Assem- bly m this province, a sufficient reason for conclud- mg that m a case like the present, a control, which m England the court of King's Bench cannot exercise over the acts of the House of Commons, ought to be exercised by this court over ilic House of Assem- bly. Perhaps in favour of personal liberty, and considering the right to its enjoyment as a natural right only to be abridged when the authority is manifest, the question ought rather to be reversed and we should be held first to satisfy ourselves that ^- — eA....o tv control ima natural right. The terms of the question, however, are immaterial, >:^ma '■ ■ 'M3 oBkp HI ■m' 160 EASTER TERM, 11 GEO. IV., 1830. since the investigation must be the same. In a case then of contempt, so clearly and directly alleged on the pleadings, and resolved by the House, I cannot see upon what sound principle the power of the As- sembly can be denied. If it were admitted that in England the authority of the House of Commons to commit has, when questioned, been sustained by the courts, upon the ground of precedent and usage only, still it is material to -onsider that this usage must have had a beginning, and that in the first in- stance, we must suppose the power to have been assumed, and acquiesced in from a conviction, that upon principle it might and ought to bo exercised. Although the precise era at which the House of Commons began to exist as a separate branch of the great council of the nation is still a disputed point among historians and antiquaries, still a period is assigned by very general consent, which was long subsequent to the regular organisation of the great Common Law Court of the Kingdom, and they must, therefore, have begun to exercise this power at a time when there was a tribunal to control them, if such control could in the nature of things come within the jurisdiction of that tribunal. But the power of the House of Commons to commit for a contempt has not been taken to rest wholly or even mainly on the ground of precedent and immemorial usage, and upon the imagination, or fiction built upon it, that an act conferring such a power must be presumed to have been passed, though the record can no longer be found. If it did in England rest on this ground exclusively, then it seems to me that, in order to vindicate the assumption of such an authority by the Assembly here, it would be neces- EAflTER TERM, II GEO. IV., 1830. JSj sary to rest the argument upon an adoption " of the laws of England as the rule of decision in all matters of controversy relative to property and civil rights " and to reason thus.-By the law of England, the House of Commons, as one branch of parliament may commit for contempt, therefore, as we have adopted the law r; C. -land, the House of Assembly of Upper Cap ida, as .art ot the legislature of Upper Canada ,, r my ; gaily exercise the same powers, without .<.fere'..e to the principles upon which such power, are assumed. I am not prepared to say that upon that footing the argument can be maintained, and most of the objections, that in this case were very forcibly urged against the existence ot the authority, have appeared to me to be appli- cable, only upon the supposition that it is endeavoured to be mamtained simply upon the fact that we have adopted the laws of England. But the question is to be taken up on broader grounds, and I think upon the most convincing authority. In 14 Ea Ld. EUenborough expressly declares his opinion Ihat independently of any precedents or recognised practice on the subject, such a bodjr as the House of Commons must a priori be armed with a competent authority to enforce the free and independent exer- cise of its own proper functions, whatever those functions might be. On this ground it has been I believe, very generally admitted in argument, that he House of Commons must be, and is authorised to remove any immediate obstructions of its own proceedings." Then if, a priori, and independently of precedents, such a body as the House of Com- mons must be armed with an authority to commit for contempts, and thereby to remove any immediate s ^ 152 EASTER TERM, 11 GEO. IV., 1880. obstructions to its proceedings, I think the same power, for the same reasons, must be admitted to reside in the House of Assembly here : for that Assembly represents all the people in this province : it has, in conjunction with the other branches of the legislature, power to bind the lives, liberties, and estates of all the inhabitants of this country. Although the legislature of this colony is subordi- nate to the imperial parliament, it is the supreme power acting in this province ; its legislative autho- rity extends to the most important objects, and the instances in which it is restrained are, perhaps, not those of the greatest and most immediate conse- quence to the welfare of society. If a legislative body with such powers, and established for such pur- poses, had not also the power of giving effect to their consultations, by protecting themselves from insult, and removing obstructions from their proceedings, I am not certain that more injury than good might not be found to result from the constitution conferred upon us, and I cannot satisfy myself, upon any reasoning, that it is not as important for us as the people of England that our legislature should not be compelled to make laws in the dark, and that they should Lave power to enquire before they come to decJdp!. When it is considered that this particular branch of the legislature is elective, and that the nature of its functions is such as occasionally and inevitably to raise up against its proceedings much excitement and opposition, and often much prejudice from various causes, it is obvious that it would soon become utterly helpless and contemptible, if it had not the power of deterring persons from menace, BA8TEE TBRM. 11 he commn courts. If once then it be established Jhen ihe law relating to all commitments for coii^ tempts necessarily applies, md accordii^.- to a series of authorities necessarily restrains us from interfer- ing in the present instance. It has been contended that the co tempt which is particularly specified, namely, the refusing to answer certain questions put by a select committee appointed to enquire mto the Hamilton outrage, and the alleged threatened release of Francis Collins by force, could have been no contempt, inasmuch as the Assembly not having Criminal jurisdiction or power to try or to enquire, were exercising functions that did not belong to them. Neither the premises nor the infer- ence can, I think, be admitted. How can we possibly know that the outrage spoken of may not be con- ee.ved to have implicated the character of one of heir own members so deeply, that, for the honour of the House, it waa necessary to relieve him from suspicion, or to expel him as unworthy. Again the outrage and the threatened violence spoken of may have been of a nature so serious as to demand stron^ legislative measures, and surely it would be a verv imperfect constitution that should furnish those who have to act in such emergencies with no authority to acquire the necessary information. There is no occa- sion foi^ examining here into the means of conductincr an impeachment in this province, but suppose for a moment that no such means exist, if the united repre- sentatives cantiot therefore bring a great public offen- j^ii-i '< , ( .1... ,1 154 EASIER TERM, 11 GEO. IV., 1880. der to justice in this province, there would seem to be very urgent occasion for their representing to the King or to the imperial parliament the necessity of a remedy from another quarter. In making such representations, the assembly could not be said to be arrogating a criminal jurisdiction ; and if it be admitted that such representations are within thescope of their liuictions, which all usage would shew them to be, then there is certainly a rational object for enquiry, and a necessity for a power to punish such contempts as would obstruct its exercise. We can- not divine, and we ought not to presume to conjec- ture the specific object of such enquiry, much less can we entertain and act upon the presumption, that because such a power might be abused, it was there- fore in this case intended to abuse it. It is said that courts newly created cannot prescribe, and can there- fore have no other power than is expressed in their charter. The courts of Oyer and Terminer and Gen- eral Quarter Sessions in this province have their power defined by no act of our legislature, and yet I doubt not that upon the principle of reason and necessity they must be allowed powers to preserve and enforce their authority. Without discussing further the objections that have been or may be raised, I am on the whole of opinion that this action cannot be sup|)orted. I do not say, that because the British House of Commons has the power, therefore, under our adoption of the law of England, the same power is vested in the House of Assembly, as a body perfectly similar; but I consider the question in this woy: — the fact that the House of Commons assumes and exercises the right shews, that EASTER TERM, ll QEO. IV., 1830. 16^ It IS felt to be necessary in order to enable them to' discharge their duties. I think the same necessity exists here., and. from principle, the same conse- quence m my opinion must follow such a necessity It IS p am that if upon this record this action could be sustained against one of these defendants, no one could venture hereafter to fill the situation of Speaker, and If It could be sustained against the other cer- tainly there would be an end of an independent exercise of the will and judgment upon constitutional questions by the members of tliat body. Argumentb were very ingeniously raised upon the possible abuses that might follow the recognition of the power exercised in this case by the Assembly and some of them certainly were formidable in appearance at least; but every objection of this na- ture would equally be against the House of Commons It IS scarcely possible for such objections to be pushed to a greater length than they were by Sergeant /^M- son in 3 Wils. 190 ; and they cannot receive a more satisfactory answer than is given to them in the judg- ments of Ld. C. J. De Grey and Blachtone, J The true point of view in whicu to reg-ard the question is that these powers are required by the house, in order to enable them to promote the welfare of their con- stituents; we are bound to suppose that they will use them with discretion and for good ends, and if we had the power, we should have no right to with- hold them, on the assumption that they desire to per- vert the objects of their constitution. Sherwood, J.— (After stating the case.WIJpon these pleadings it becomes necessary to determine the following questions :~ im EASTER TERMk 11 GEO. tV., 18S0. 1st. Had, the House of Assembly a constituitioaal right to make the enquiry stated in tlie defendants' special pleas? 2nd. Had the House of Assembly a lawful night to imprison the plaintiff for refusing to answer the questions put to him by the special committee ? 1st, The House of Assembly is a C0r0Pdinp,te branch, of the legislature established in thia pro- vince by 31st Geo. III., c. 31. The legislature so established are authorised and empowered by that stt^tute "to make laws for the pea^ie, welfare, and good government of this province." It is my opinion that the right of enquiry for the purpose of enabling the legislature to exercise t^eir constitutional func< tions is necessarily incident to both branches, for I do not see how they could jpin in naal^ing law* for the good government of the King's subjeotPi without obtaining the information requisite to form. £^ correct, opinion of the niet^iures and ajterationp proper to be adopted. It think thisf: is, an, inherent rights Qss^ntial to every legi^ftt^ire. And. the right of q:i?aminatipn imp] i@a a right to, compel the answering uf all such queatiions q,S; ti^e law of the land will sanction; It does not appear- by the pleadings, what question^ the plaintiff in this case refused to anawer ; but I think it must, be presumed, they were lawful. Proper respect should be shewn to i\,d procsedinga of both Houaos, aftd they should alway% i>e considered as acting correctly, and ^ri^eatly to the rnles of law and natural justice, unless the contrary appear be- yond a dpubt* 2nd. I am of opinion that th«k raqpiry t^Uoded to EASTER TERM> ll OSO. IV., 1880. l&t was correctly made by the committee, because tiieir acts, when received and adopted by the House be- come the acts of the House itself. This I believe to be conformable to the ordinary course of parlia- mentary proceedings. As the right of enquiry implies the right of compelling answers, so, it seems to me, it implies the further right of punishing for contumacy or wilful prevarication. If it should at any time evidenUy appear, in the manner required by law, th t the Legislative Council, or House of As- sembly, had committed one rf the King's subjects for some matter which could Jot, with the le«st sem- blance of truth, be considered a breach of privilege according to the established principles of our con- stitution and the laws 0/ the land, courts of justice would do their duty and grant such relief as the law prescribes. I am of opinion that the House of As- sembly had a right to punish the plaintiff for ref\ising to answer the questions put by the committee and the only point, therefore, which remains to be dis- cussed, is whether they have exercised that right in a lawful manner. It appears to me that a breach of privilege can in no instance be considered to amount to a higher offence than a misdemeanour, and consequently that it ought to be punished in the same way. There can be no good ground for asserting the existence of right in either House to impose or levy a fine • and the only mode, therefore, of punishing an individual not a member of the House, which can lawfully be exercised, is that of imprisonment. Every court from the highest to the lowest, possesses the power to imprison for contempts offered in the lUce of the i68 EASTER TERM, 11 GEO. IV^ 1880. court. Upon as full a consideritiioii as I have boeK able t'> give this case, I am led to ih^ crncb: ion th;tt judgment should be entered for the deienuants. {a) Per Cwi'mi. — Judgment for defendants. wm^ Gallagher v. Strc imiDGE et al Tii debt on bond conditioned for the iitnits, tae plain' 'i', in assessing ditma- sres, took a Terdict for the penalty of the boad. Lea re was granted him toamei-f' by the judge's notes— altering the verdict to the endorsement on the cc. so. interest and sheriff's fees as proved. Damages must be kssessed ia such a case. Debt on bond, conditioned for the limits. Breach assigned, that J. G. S. did leavo the limits, and judg- ment by default. The damages were assessed at the last assizes for the Home Distrl? t, and a verdict was taken for the penalty of the bond, and one shilling damages generally. Baldwin moved to set aside the verdict, for irreau- larity, alleging that the damages should have been assessed on the breach, and not taken for the penalty. The Solicitor-General moved also for leave to amend the postea by the judge's notes. Both these rules came on together. And a question was raised whether it was necessary to assess damages in a case of this kind. Chief Justice. — At the trial, the plaintiff proved that the damages on the brer 1' amounted to £62 19s. Id. He then took his vc for his debt, and .ne shilling damages. I tht k he has a right to (a) See Beaumont v. Barrett, 1 Muu. F. C. 03 ; Featott v. Hampton, r. -iticoro 69; Keilly v. Corson. 4 ■•^■K). P. C. 347. EASTER TERM, 11 GEO. IV., 1830. 169 amend the postea by altering his damages to what he proved. As to the propriety of assessing the dama- ges I am clear that it is a proper case to be referred to the consideration of a jury. Sherwood, J., concurred in amending the verdict. Macaulay, J.-At iirst I thought it unnecessary to go to the jury, but on looking into the matter, J am of adiflferentopinion. When the bond is assigned by the sheriff, I take it for granted the plaintiff may recoT 3r the amount endorsed on the ca. sa. together with the sheriff's fees and interest, which are matter of uncertainty, and proper for a jury to compute. I have also no doubt but that the court can order the verdict to be amended. The judgment is always entered for the debt, with damages for the detention and the plaintiff levies at his own peril the actual damage and costs. Per Curiam.-hQ^Ye granted to amend the postea. I s ^il Bell v. Stewart. aUJc.u«h the plaintiff woul^a.^^ r^Xhrs ti^feVCS Judgment had been given for the plaintiff on a general demurrer to the declaration in this case dur- ing this term, and the SoUcitor-General moved for leave to withdraw the demurrer, which was opposed hy Draper, on the ground that a trial had been lost, anu that a similar motion had been made in this cause and abandoned before the (^emurrer was argued. 1190 flAATER TERM, 11 GEO. IV., 1880. l^iBP Justice. — I am opposed to allowing this -demurrer to be withdrawn. The judge refused to allow time to plead, when application was made in the first instance, because it wcMild throw the plain- tiff over the assizes. The demurrer was then put in, and if this motion prevail, the defendant will gain precisely what was refused him. It is laid down in the books that a demurrer cannot be withdrawn after a trial is lost, a principle, however, which I believe has some exceptions. In argument, no substantial cause of demurrer appeared, particularly to the third count of the declaration, which appears very unex- ceptionable. Such a precedent would be bad. it would encourage frivolous demurrers to allow this, which does not appear to have even plausible grounds to be withdrawn. Sherwood, J., differed. — I see no reason to sup- pose the demurrer in this case was entered with the intention of unnecessarily delaying the plaintiff ; but it seems to me it was filed, bo7\a fidr, under the sup- position that the declaration could not be sustained. The plaintiff, it is true, has lost a trial ; but it seems clear by the books of practice, that leave is some- times given to withdraw a demurrer, and plead issuably, even after a trial has been lost. If judg- ment be entered on the demurrer, damages cannot be assessed before the next assizes, and a trial can be had as soon. The plaintiff would not be injured by delay in the one case more than the other. I think the defendant, in a case like this, (libel,) should have an opportunity of trying the facts before a jury, and I therefore think he should have leave to withdraw the demurrer and plead issuably. EASTER TERM, 11 GEO. IV., 1880. X61 Macaulay. J.-I cannot consent to this motion. I entertain no doubt but that the matter complained of and set forth m the declaration is libellous The ground of refusing time to plead, was the delay this would occasion. Delay was not asked for the pur- pose of demurring, as, if time to plead had been given, It must of course have been on the usual terms of pleading issuably, &c. Then a demurrer is put in which throws the plaintiflF over the assizes. After the assizes the defendant's counsel made a similar motion to the present, which was withdrawn before the court came to any decision upon it. The case is then argued-the objection overruled, and the decla- ration sustained; and now this motion is made for the second time. The demurrer did not rest on sub- stantial grounds, nor does this motion. If the sen eral issue wefe to be pleaded, the plaintiff would have to prove the publication, which is now admitted. Perhaps a justification may be attempted, which would put the plaintiff to proof much less accessible than It was at the last assizes ; or the justification may be bad in law, and still the plaintiff would suffer inconvenience and delay 1-. shewing this. It is true the plaintiff cannot assess his damages till the next assizes ; but this i. occasioned by the defendant's conduct, who oufet. not, therefore, to be allowed TublT (T'*"°'*^ °^ P""^"S ^^' plaintiff to further Per Cwmw.— Motion refused. London and S. W. Railw^ Corn^ny, 18 a fi. 2^"' ^'""'^- ^'''"'"'«>' '• 16?. EASTER TERM, 11 GEO. IV., 1880. Doe v. Roe. Court will not nltow a deolaration in ejectment to be amended by alter' ng the name of the townehip in xhicb the land for which the aotiun is brought lies. Baldwin moved to amend the declaration in this cause, by P*ri' " v t the word " Elizabethtown," and inserting " Young," in lieu thereof, as the land for which the action was brought lay in the latter township. Notice of the intention to make this ap- plication had been given to the tenant in possession before term. The Chief Justice thought the amendment might be allowed, both townships being within the same district, the venue would remain unaltered, and the trial take place at the same assizes. Sherwood, J., and Macaulay, J,, differed, think- ing the amendment prayed for went too far. A lot or concession might be amended, but not a township. In Adam's Eject. 201, an amendment of the parish of G. to the parish of St. John in G., was allowed ; but the cases re not parallel — the principal division (G.) remain* ; but here it is not within the same limits. The affidavit of service shews it to have be:n made on the tenant m possession ; — of course that must mean of land in the township mentioned in the declaration (a) Per Curiav —Motion refused. (a) Bee Doe t. Beok, 18 C. B. 229. BAflTER TEEM, 11 GEO. IV., 1830. Jarvis V. Washburn, one; &c. 163 them into the%herS"hand« '^ *'"' """ °^^" P""'"* A VERDICT waM taken for the plaintiff bv consent, subject to the opinion of the court upon the following 1st. Plaintiff, being sheriff, sues defendant, as an attorney, for the service of writs and subpcenas. for clients of the defe^-lant, both in the King's Bench and the district couit. 2nd Plaintiff's demand i composed, in part, of Items for the services of notices and other papers not writs. f i' o, 3rd. Plaintiff's demand also contains items for money paid for postages and swearing affidavits. 4th. The writs and papers were sent by the de- fendant, as attorney in the causes to which they late by post, in the ordinary way, with directions irom him to the sheriff to have them served ; but with no particular undertaking on the part of the attorney to be personally liable. The court were clearly of opinion that the atton o j IS liable to pay the sheriff's fees, and cited the foi- lowing cases :--2 C. & P. 118 ; 5 B. & C. 328: 2 B & A. 562 J 12 Ves. Junr. 349 ; 2 M. & S. 438. (a) Judgment for plaintiff. I J] k ^l^m". 4 i^^t'' ±y^t7y '• Mansfield, 11 .T„r. 60; Q. B. 764: 8«My, H"-i."" 164 EASTER TERM, 11 GEO. IV., 1880. *RoBiNEi' V. Lewis, (a) The court refused to arrest the judgment ia dower, on an objection that the declaration stated the tenant had been attaeked to answer, instead of lummoned. The AttoTTiey-General moved in arrest of judgment. The declaration stated that the tenant (Lewis) was attached to answer ; but he should only have been summoned. All the forms agree that this ' the correct mode in an action of this description. ^en there is another objection : it is not stated that the tenant had possession, or was seized of any property out of which dower should be assigned ; although the demandant's right to dower is admitted and estab- lished, still, before the tenant can be charged, it should appear by the record that he has lands, out of which her demand can and ought to be satisfied. Sullivan, contra, insisted that the first objection came to late ; and if there were any weight in it, the court would not entertain it at this stage of the case. The second he contended was answered, by con- sidering that the tenant by going to issue, only on the right of the demandant to claim dower, as not being a subject, had in effect admitted that he had lands out of which her dower should be satisfied, if she could establish her right to dower at all. Chief Justice. — I am of opinion that the judgment ought not to be arrested. The objection raised can- not, I think, be received now upon a motion in arrest of judgment. There has been a verdict, which not only cures statements of actions defectively made, but which, in many cases, is taken to supply (a) See page 44. EASTia TMM, 11 »i«»>>iM. The principal reasons advanced by the defendant's counsel are the two foU«wing:-lst, that as the iu^ were sworn to try the issne joined betv p the par- ties, they could not discharge their consciences wMi- out gmng a verdict on all the counts. I have already remarked on this h<«d, and I think it unnecessaTto ™ Zf ,'r":;!Ti »"*'"''«»■'«• The se«,nd rein TO, that the defendant had been put to expense in preparmg for h.8 defence. This is decidedly L aivu" meat ai mc«.venienH, and \f there were any thLg ■u It, It would apply with equal strength to many parts of flie established practice of this coort. The defendant is not entitled to costs, when the plaintiff enters a noUe prosequi at any stage of the proceedings to a part of his declaration, although such entry fa coiBuualiy made, and there is no doubt of its lenity 186 TRINITY TBftM, ll GEO. IV., 1880. In the present case, should the verdict remain as it is, the defendant could recover no costs, and conse- quently the right which he claims would be insuffi- cient to produce the effect. Upon the whole it appears to me, the entry of a verdict for the defendant, under circumstances like those that attend the present case, if at all allowed, must always be a matter of practical convenience, subject to the discretion of the judge at nisi pritis, and the ultimate control of the court above. The remaining counts in the declaration contained distinct causes of action ; the counsel for the plaintiff believed the interest of his client required him to for- bear further proceedings on those counts, and he ex- pressed his determination to do so ; there was no evidence to show on which side justice had ranged, as respected those counts ; the defendant had neither merit nor testimony, and the jury had nothing to try. It seems to me, the practice at nisi prius did not re- quire a verdict to be entered for the defendant wnder such circumstances, as a matter of right, and I am therefore of opinion that it should be struck out. If the plaintiffs be desirous of entering up judgment on the fourth count of the declaration, they will find it necessary, first to dispose of all the other counts; and if they enter up their judgment and cannot legally do this, ie defendant will have his remedy by way of appeal. If the plaintiffs allow the present action to remain as it is, and bring a fresh suit for the same causes, the defendant can plead the pendency of this action in abatement of the other. These last con- siderations are not necessarily involved in the dis- puted point, but they serve to show that the defen- dant is not deprived of any advantage to which he hm 9> just and legal olmm. They ^uxthcr shew, that TEINITyTMM, 11 OK). IV., 18S0. 187 If a plaintiff take a verdict on one count only, when the declaration contains many, he tacitly undertakes to dispose of the remaining counts in some other way or submits to the consequence of entering an errone- ous judgment. ThB Chief Justice and Macaulay, J., having been retained in this cause when at the bar, expressed no opinion. Rule absolute, (o) Grace v. Mbiohan. If defencUnf « attorney file common bail for him, it i, a enfficient appearance. Ktng had on a former day moved for security for costs, on the ground that the plaintiff resided out of the province, and to stay proceedings until such seen- li ^ ^t ^'I?' ^^*''* ^^^^^^ «»"se. a«d objected that the defendant was not in a situation to make this application, not having, as he contended, entered an appearance. A common bail-piece has been filed by the defendant's attorney, but this is not according to our statuf . - Geo. IV., c. 1 ; for that act distinguishes between tiic defendant's appearing and the plaintiff's appearing for him. In the former case, the defendant IS to enter and file an appearance, in the latter, the plamtitf is to enter common bail for him. • ^^^^ Justice, (after stating the case).-There seems to be no good reason in the nature of things for resorting, in this province, to the fiction of com- mon bail This court has its jurisdiction in all cases by^tatute^an£with^^ ^^^ {«) Vide 1 M. & M. N. P. C. 822. ~~ " 186 TIINITT TIRM, 11 OSa IT., 1880. defendant in custody upon some other cause; the putting in emumon bail, therefore, has no sensible object, but still it has been made a part of our pro- ceedings. In all unprovided cases this court has by rule adopted the practice in England, and if this were an unprovided case, we should then have to enquire what that practice was ; but this case is provided for by our own statutes, and in a manner that appears to us to sanction, if not to rendc necessary the mode of appearance by entering common bail. The statute 2 Geo. IV., c. 1, sec. 4, enacts, that when the defen- dant does not appear, the plaintiff shall enter "com- mon bail " for him; that is, he shall do for the defen- dant what the defendant, within the proper time, ought to do for himself. In England it seems not very clear from the books of practice whether in ac- tions by original, a defendant usually appears by entering common bail, or whether he is merely to enter a common appearance. According to Tidd, it seems that he ought to enter a common appearance only, and that it is when the action is by bill, or sum- mons and attachment, that the defendant should file common bail ; but the other books of practice do not lead clearly to that conclusion. If in an action so commenced entering a common appearance were clearly the regular proceeding, it does not, therefore, follow that a defendant, having entered common bail, could be said not to have appeared; because in the British statute, 12 Geo. I., and 5 Geo. II., appearing and putting in common bail seem to be used as equi- valent expressions; and in the form of notice directed by statute to be put upon non-bailable process, the party is told he must appear, when it is intended that he is to put in common bail. la 1 Salk. 8, it is ex- TRINITr TEEM, 11 GEO. IV., 1880. 189 pressly sa.d oy the court, that common bail is an appeaianco as wel! as hail. Independently of any reasoning on the English practice, onr statufe recog^ n «es that manner of appearing and we are therefore of opinion that the defendant in this case has ap- peared to the action, and that the plaintiff, if norther objection be urged, must give security fo^ costs The other judges concurred. Per Curiam.--U\x\Q absolute. Hit Cooper v. The Canada Company. A wnt of dUtringat is not the proper Drocess with wKi„k T' °Jf""''S'» had been issued in this cause upon which the sheriir returned issues. The SoUci,^: Gmeralmov^to set aside this writ, on the ground that no wnt of summons had been previously sued out and served, and therefore there was nothinrto warrant the dislringas. * i(««i«n answered, that as there was no Chancerv here, out of which the writ of summons could be sue f and as the court had decided that a capias, which s e ongmal writ of this court, was not a process „ serve on a corporation, a di^trmga, was in fact the "is°::f;.''"'*^p'^'""^-'^^-'<— ■ a^%T'*' f" "»''°S """t "Ithough the statute 2 ml. Ii;-\ ' f'"'""^' ""'y an original writ of O'pttts, which cannot go against a corporation ag-'e gat«, expressed an opinion that it did not prewnt a 190 TRINITY TERM, 11 GEO. IV., 1880. suitor from availing himself in other cases of such description of process as by the law and practice of England is proper in such cases. They, therefore, under the authority of that statute which created the court, made a rule directing the process of summons to be issued against corporations aggregate, leaving the law and practice as to service and appearance to stand upon our general adoption of the law of Eng- land, and of the practice of the court of King's Bench, and made the Eule absolute. Leonard, Esq., Sheriff, v. Merritt. Several actions having boon brought on a bond to a sheriff for the gaol limits, the court granted a rule to consolidate them. The plaintiff had instituted a separate action against each obligor in a bond, conditioned, that one T. M. should not depart the gaol limits. The court, on mo- tion of Draper^ stayed the proceedings in all the actions but one, on the defendant's entering into a common consolidation rule. Holt v. Jarvis, Sheriff. In an action against a sheriff for seizing and taking goods, it is sufficient to prove that the deputy sheriff seized them "colore officii," without proving the writ of execution, or giving other evidence of his being deputy sheriff, than that of general reputation. Trespass against the sheriff of the Home District, for seizing, taking and carrying away boards, the pro- perty of the plaintiff. The cause was tried before the Chief Justice at the last assizes for the Home District, and after the plaintiff had closed his case, the Chief TEINITY TERM, 11 GEO. IV., 1830. 191 Justice expressed doubts as to the sufficiency of the evidence to sustain the action. The plaintiff's coun- sel, anticipating a charge unfavourable to his client took a nonsuit, with liberty to move to set it aside if the court above should deem the evidence sufficient to go to the jury. The facts proved were as follows: — HoUister was the known deputy of the defendant and acted in that capacity. He went to the lumber m question, stood upon the pile, and publicly declared that he seized it, and forbade any person to meddle with It. A part of the same lumber was afterwards taken away; bu did not appear by whom nor what quantity. No writ oifi. fa. to authorise the seizure was proved to Lave been delivered to the sheriff. SvUivan last term obtained a rule nisi to set aside the nonsuit and for a new trial. He argued that the evidence adduced made out a prima facie case, at all events sufficient to go to the jury; that the produc tion or proof of the writ of/, fa. was not necessary as Holhster acted professedly in his charact^^r of de- puty sheriff, and that his connexion with the sheriff was sufficiently proved by general reputation. He cited 1 Lord Raymond, 190; 7 T. R. 117- 7 B Rr C. 636. The Solicitor-General contra, argued that plaintiff having closed his case, and seeing every reason to anticipate an unfavourable verdict, should not be allowed to take a nonsuit and then move to set it aside, in order to go down to a second trial better prepared. That HoUister was to be viewed, not as the deputy, but the bailiff of the defendant, and there- fore it was incumbent on the plaintiff to prove his 192 TRINITY TERM, 11 GEO. IV., 1880. authority derived from the defendant. That there was no proof the defendant autuorised the trespass; as there was not a tittle of evidence to shew that Hollister was acting under a process directed to the sheriff, or that he was not proceeding on his owrf authority and at his own risk; and lastly, that the evidence adduced did not shew any trespass to have been committed. The fact of Hollister 's declaring he seized the lumber and forbidding any one to interfere with it amounted to nothing; and the mere stepping on the pile cannot be construed into such a corporal taking of possession as would per se constitute a trespass. The court took time to consider, and now delivered their opinion. Chief Justice, — In this case, it was my impression at the trial that the plaintifif was bound to give some proof that there was actually a process under which the deputy then was acting, and that the mere asser- tion of the deputy that he was acting colore a^ciivfus not sufficient to charge the sheriflf with the conse- quence of his acts. It seemed to me necessary to shew that a duty had been by law imposed upon the principal officer, (whom alone the law regards,) and where that was shewn, there could be no doubt that the sheriff must answer for all irregularities and abuses of the subordinate officer in the execution of his duty. Such is the law with regard to bailiffs of the sheriff, whether general or special, and such it appeared to me, nn the first impression, ought the law to be even in respect to the acta of the under sheriff ; the reasona' Hisnt tiitu, 11 646. It., itto. 10^ But ohto .f J^' '^'''^ ''^'"'"S *° ^^^«'>^ 't. «.„ n? T .f ''^"*^*' consideration and examina- ^ n r"l T''J ^'^'"'^ °*'^^''^'«^- Jt •« *••»« that 10 a note by Mr. Doaglas to his report of the ease of Ackworth and Kempe, he seems evidently to con- sider the under sheriff as standing on the same foot- mg wi h a bailiff, for he says " if the act of the bailiff IS not the act of the high sheriff, neither is the act of the under sheriff;" and in 7 T. R. 113, the impres- sion of Mr. Justice Grove seems to have been that under the authority of Yabslev v. Doble, in Lord Raymond a bailiff who gives a bond of indemnity to the sheriff stands on the same footing as an under sheriff If this were really so, then it would hav6 been necessary in this case to shew that the deputy was really acting under colour of some process for with respect to bailiffs that must be shewn- but the case in 7 T. R 113 and other authorities shew that there is a clear distinction between a bailiff and the under sheriff, who, as Lord Kenyon says " is the general deputy of the sheriff for all purposes." The latter repr.-sents the sheriff fully and in all things- he gives bond that he will well and truly demeln himself m his office, and it would be extremely pre- judicial to the community if he could, when clothed by the sheriff with this authority, assume and pro- fess to act in his name, without at the same time making the sheriff responsible for his acts. It would also, for obvious reasons, be injurious to the public peace. I think, therefore, that the opinion I formed at the trial on this point was erroneous. And as it may have had some influence in inducing the plain- iff to accept a nonsuit, I think he should have a new trial on the terms that the costs shall abide the event- 2 ' 'A- H ^ ''1:1 :. If ■'J.' if 194 TRINITY TERM, 11 GEO. IV., 1S80. a condition which I deem reasonable, because, on one other ground at least, his case was so defectively nia«1e out at the lust trial, that I am not sure a sense of that would not at any rate have determined him to accept a nonsuit as a matter of prudence. If I could be assured of that, I t>hould of course not set aside the nonsuit, but as I cannot bo certain on that point, I think the plaintiff should have a new trial. I cannot say that in my opinion he proved no cause of action, such as he declared for, though I adhere to the opinion I stated at the trial, that the evidence was npt .such as gave him a claim to compensation for property he alleged to have been seized, and if the case had gone to the jury, it would have been necessarj'- to submit to them another consideration, whether the possession of Holt were bona fide, or whether the transfer made by the two Churches were not colourable and fraudulent, on the principle of the case in 5 Burr. 2631, (Martin v. Podger.) Sherwood, J., (after stating the case, and the points urged by the defendant's counsel,) as to the first objection — the plaintiff elected to be nonsuited. If a plaintiff voluntarily request a nonsuit, on grounds which originate with himself, and respecting which he has formed his own opinion independently of any suggestion of the judge, I think he should give very urgent reasons to entitle him to a new trial. The present case, however, is different, as the judge or- dered a nonsuit with leave to move, and therefore, it seems to me the plaintiff is not precluded from making the present application. As to the second point, that Hollister must be con- sidered as the bailiff, and not the deputy of the de- TOISirr lEBM, 11 BEO. IV, 1830. ] 95 fendaut-it appeared by (be evidenco .hat nollislcr was the k„o„„ deputy of the defendant andactd : ^d ZtT" ""' '"'^'"' '-P"-"--^ mittcd, but there was no evidence to shew that he .h.f.h" '^r"'!,'^ '"'•''"'"■™' ""' «'«■•<' ^as no proof that the defendant authorised the tres™,, f™ tbe report of the trial, there cer.lMy'^Ves 1°: appear to have been any evideuoe o? a speoK .nthonty from the defendant to Hollister to'seize fte goods m question, or, indeed, to seize any <-ood belonging to the plaintilT. It was proved, however that Holliater was the known deputy of the difend consider this as ;,rima/«c« evidence of hold.w and ezercismg the office of under sheriff which 1,»„ office as well known as that of sheriff 'and * a -^ corporated with it, that the act of the deputy for ali ciyil purposes is the act of the sheriff hfmself A salts for wi^ng, m„,t be brought againsUh hcrt.^ although the deputy is in fact The ^le „g fn in |fo transaction against which a complaint ismadV No action can be bron^ht against the deputy o"b,iiff^r a new sheriff be appointed -mrf wM! i ' Rlio^iff u ' ^''"""'^^'' '"'« wLiie lieacfsasliiirh Bhcriff ho may appoint a deputy sheriff, X'X *■ _ 1 dl^il 196 TEINITT TERM, 11 GEO. IV., 1886. virtue of the statute, will posses.s the like power and authority as himself. The official acts and admis- sions of the deputy sheriff are binding on the sheriff, because he is the general officer of the sheriff for all purposes, and the sheriff is responsible for all inju- rious acts done by his officers, colore officii, when deputed by him to execute the law. — Doug. 40 ; 2 T. R. 148. This is not the case with a bailiff, who is only a special officer of the sheriff ; and therefore it is necessary in every case to show a privity be- tween him and the sheriff, as well as a special authority to act.— 1 Ld. Ray. 190 ; 7 T. R. 119 ; 7 B. & C. 635. I think the plaintiff established a prima facie case against the defendant by praving that Hollister acted officially as deputy sheriff when he seized the lumber, and if the f*ct had been other- wise, it was incumbent on the defendant to show who was his deputy, as I take it for granted he had one, because it is his duty to appoint a deputy. 1^^ general law with respect to principal and agent ^, that the principal is not responsible for the *cts of the agent beyond the limits of the pjirticuliir bnsioess or commission in which he is employed ; but in the case of a sheriff, the law extends his responsibility much further, on the broad principle of necessity and public policy. It is for the interest of society in general that all official acts of the sheriff or his deputy, in civil cases, should be peaceably submitted to, when done in the ordinary course and manlier of public business, but this would not be the case, if the sheriff hiujself were not answerable for the ofiBlciaJ acts of his known officer whom he appointed, »$ the law presumes, because he is trust-worthy, and whose charafttpj: ougl^t to be M^wp t9 h49> U ith$ sbef iff TBINIW TBBM, 11 OBO. I?., 1880. 197 give a warrant to his bailiff to seize the goods of A and he seize the goods of B., trespass vi et armis lies against the sheriff, for the law views the sheriff and his officer as one person, and the act of the bailiff becomes the act of the sheriff.— 3 Wils. 317 The deputy is the general officer of the sheriff for all purposes within the scope of his office. The bailiff is the officer of the sheriff for a particular purpose only ; but when either acts quatenm officii of Msi^ sheriff, and commits a trespass, the sheriff is an- swerable cimliln, but not criminaliter : the sheriff may employ whom he pleases, but he is responsible for the acts of all those employed by him.— 2 T R m. It has been objected by the counsel for "the defendant, that it was necessary for the plaintiff in this case to shew that the under sheriff had a writ of fifa. against the goods of some person, before the sheriff could be made liable in this action but I tjimk no such necessity existed. This doctrine is recognised in 7 B. & C. 635 in notic, that when an authority is proved to have been given by the sheriff, it is sufficient. Here a general authority is established, because Hollister was the general officer of the sheriff, and acted officially in that character • but had he been a bailiff, a special authority must have been proved. * s to the fourth point, that the evidence does not shew tt trespass to have been committed— under this objection :t will be necessary to examine, whether there was an actual seizing or taking possession of the lumber j and if there were, whether such act amounted to a trespass. When personal chattels ^re iigl^y ft^(^ pumljersoipe, and it is impr^Uc^ble \\ pi ml- it* if ■ k I 198 TRINITY TERM, 11 GEO. IV., 1880. for the sheriff to remove them immediately, there is no other way by which he can seize them, than by performing acts which shew his intention of dispos- sessing th3 owner, and by declaring that the acts are done for the purpose of changing the possession. Here all these requisites coincide. If the sheriff seize hay, or unthreshed corn in stack, or growing crops in the field, he must do so somewhat in the same way as he did in this case. It is qnite impos- sible for him to remove them instantly; and if it were once admitted that such unwieldy and ponder- ous articles were not in the custody of the law, by such acts ot the sheriff, and that the owner had a legal right to make use of them, many frauds would be the consequence, and many judgments would eventually be unproductive, because more was re- quired to be done by the sheriff than it was possible for him to do. The sheriff, by his officer, in this case, publicly declared that he seized the lumber, and forbade any one meddling with it. It seems to me that he could do no more with this description of property ; that he had dispossessed the owner and taken the goods into his own possession at the time. The removal of the goods might have rendered the custody of them less hazardous for the .sheriff, but was not indispensably necessary, in my opinion, to constitute a seizure. In 1 M. ^ S. 711, the sheriff's oflicer went to the house of the debtor and declared that ho came to levy on his goods, but made no manual or actual soizui-e, except laying his hand on a table and saying, "I take this table," and then locked up his warrant in the table drawer, took the key, and went away without leaving any person in possession of any part of the goods which were la IRINITT TERM, 11 GEO. IV., 1880. 109 the house It appears by the ease, that the seizure was considered good, both by the court and by the couusel. although that was not the point determined. The question then was, whether the possession was abandoned, and the court determined that it was which they could not have done, had they con.sid^ ered that there never was any possession taken of the goods by the sheriff. P.-esuming then that Hollister did seize the lumber, as under sheriff, and that the defendant is answerable for his acts, the last ques- tion to be determined is. did such taking of posses- sion constitute a trespass. Trespass vi et arm,s may be brought by him who has the possession of goods of a house, or of land, if he be disturbed in his nos' session.-l Inst. 57; Co. Litt. 4. b.; 6 E.st. 602 In Detinue and Trover, the plaintiff must have a pro- Zl^^ r '^^^ ^Z ^^'^^ '^' ^^^'"^^ ••« brought, otherwise it cannot be sustained : but nossessfnn alone is sufficient, in trespass again;t all the wZ except the rightful owner: for the injury done to the possession is the foundation of the suit. If one man dispossess another of his goods, and return them m as good a state as when he took them, still tres- pass will he for the change of possession, and the jury may give damages in proportion to the actual injury proved In addition to the actual injury, the plaintiff has also a right to give in evidence the par- ticular circumstances which accompany and give a character to the trespass ; and the jury are no e' strained, m their assessment of dLages. to the actual loss of the plaintiff, but may awari further damages on account of the insulting and malicious conduct of the defendant, when the trespTi L"' committed. I am therefore of opinion, that thc^ non- m ittimi TEiir. h dt6. i^., iHd. snit should be set aside, and a new trial granidd, nod that the costs should abide the event of the suit. Macaulat, J., having been concerned as plaintiff'^ attorney, in case of Comfort v. Church, gave no opinion, (a) Per Curiam. — Rule absolute. Whitehead, one, &c., v. Fothergill and Brown. The process of this court can only be served bjr the sheriff, or some one of bis lawful officers. The court set aside the service of the process in this cause, because it had been served by a person not a sheriff's officer. The statute 2 Geo. IV., c. 1, directs that the process shall be served by the sheriff, his deputy, or a lawful bailiff. In this case it had been served by a clerk of the plaintiff. In giving his opinion, however, Macaulay, J., remaiked that, though by the strict letter of the act the service in this case was bad, it might be a question whether such were the spirit of the statute, or the intention of the legislature. When the writ of capias ad res- pondendum was substituted for the writ of summons, it became necessary to enact, that the sheriff should serve it, for he could not otherwise have been bound to serve a copy of process,*which, on the face of it, required the defendant to be arrested. — 2 Geo. IV., (1821,) c. 7, and 2 Geo. IV., (1822,) c. 1, sec. 4. Baldwin for plaintiff, Attorney-Generai for defen- dant. (a) See Miuk t, Jarvis, 8 U. C, Q. B. 897 ; 13 U. C, Q. B. 84; Oregorv T. Cottrell, 2 Jar. N. S. 16 ; 6 E. & B. 671. TRINITY TBKM. 11 QEO. IV., 1880. Hyde v. Barnhart. 201 "^^h* Iffithi'r/ty^'e^ot"* o;"h^"V' •"*"''•''-• '•^^ *••• benefit ta entiUed to further pSine„t. ^ ' "*"™ '" "'•"«' ""^'o^Jy beC be fr.Mi«,„ „oved to discharge the defendant in execution out of custody, for the non-payment of the duced affidavits that the defendant had b^en ouUn the limits some time, and that no notice had been served on the plaintiff's attorney of his return He contended first, that notice was necessary and secondly, that by going on the limits the defendant had waived all right to his allowance, and must o^^^^^ tain a new rule for it, before he could claim his dis- charge for non-payment. Sherwooi,, J after taking time to consider, de- cided that clearly the plaintiff was entitled to notice He also intimated that his impression was with the plaintiff on the second point, but gave no opinion. The Chief Justice and Macaulay, J., having been concerned as counsel in the cause, gave no opmion.* ^ " WiLLARD V. WooLcorr, Administrator of M'MURTRIE. The court allowed a judement on n >/../%„_■ ^ amended in the name ofZ intestate' bv mfJi"'' ? */ correspond with the issue as a matter of course, without enq^ ' " '"' '"- '''""' "°* Washburn moved to set aside the judgment on ../a. the writ of/./.., and the ca. .a., issu'edTn this cause, for the following irregular! ties:- the original judgment and the writ oU cireJacias were both right *Thi8 case, though moved in term. wa^d^^JHS^T^^ii^ii^i;^ ' 202 TRINITY TERM, 11 ORO IV., 188(t. ^'•ffi:^^ hut the judgment ou the sci.fa. was entered against ^oolcott, administrator of M'Martin, with which the precipe for they?, /a. corresponded, but the writ was against the administrator of M'Murtrie. The ca. sa. was right in the name, but it was issued on ihe sheriff's return to the Ji. fa. of a small lev.v, and a devastavit, and on an affidavit, stating ihe retuiu of the devastavit, and that plaintiff wrs n | .prehensive defendant would leave the country, &c. The ca. sa. appeared to have issued for the whole amonnt, though the sheriff had returned a small levy to the fi.fa. Baldwin moved a cross rule to amend the judg- ment on set. fa. and the subsequent proceedings as far as the return on thef.Ja. ; and the court on this day gave judgment on both rules after argument. Wasfiburn for defendant. — The application to amend comes too late, and to grant it would, in effect, be allowing a new roll to be made. No case can be found in which the court will admit a judg- ment to be amended by the insertion of a new name — 2 Str. 1209, a judgment against an executor shall not be amended to his prejudice. In this case, with- out the amendmeii pi .'y ed for, the administrator is entitled to his dirvhd ;, At all ' ^«'iits the ca. sa. should be set asiue. ic is lounded on a judgment not in existence. There is no judgment on sci.fa. against the administrator of M'Murtrie; and the affidavit on which the ca. sa. is founded, is defective in not stat- ing the sum due, and for which the writ is sued out. Baldwin, contra. — This application is not to amend the name of the defendant, but an adjunct to his TaiNITYTKKM, II GEO. IV., 1880. 203 name The error i one of mere mispHsioD, and is therefore clearly amendable. As to the motion for setting aside the proceedings, the opposite party are irregular in giving notice of their intention to move on one ground, and in term taking a new and totally different objection. If the court grant the amend- ment prayed, the only remaining question is as to the ca sa. This writ is not founded so much on the judgment, as on the sheriff's return of de^mstavit It may be doubted whether an affidavit be at all neces- sary, it can certainly only be required 1 r the pur- pose of complying with our own statute, instating the plaintiff's apprehension that the defendant is about to quit the country. Chief JusTJCE.-In granting this amendment to the extent asked, it does not appear to me tuat we are authorising a new judgment to be made. But I am strongly impressed that before the ca. sa was issued, a s- re feci enquiry should Lave taken place My present opinion is, that the ca, sa. is unwar- ranted. The sheriff returned on the/, fa. a lev - of part de bonis testatoris, which is entered of record and yet the ca. sa. is issued for the whole sr m! With respect to the affidavit, this is a case iii g^iert^ The true ground of the arrest is stated n the affidavit, i. e., the return of the devastavit, and I should think this sufficient. I am of opinion tiiat the ca.sa, should be set aside, and the amendment as far as the return of the/. /a. allowed. Sherwood, J.-I give no positive opinion as to whether an enquiry be necessary or not, at present I incline to thinlr if ia no* -A-nlr-^ T ♦1. nu- i-T —-"*■ ^^^ ^®4«if«d. I agree with the thief Justice as to the amendment. v'l n I* 204 TRINITV TERM, 11 GEO. Itr., 1880. Macaulay, J. — I agree as to the amendment ; but with regard to the ca. sa. I think it unlawftil. The party should have an opportunity of defending himself upon a return of devastavit. An executor cannot be held to bail without a judge's order, and I cannot see upon what ground a ca. sa. should issue, when under the same circumstances a ca. re. could not. The affidavit is, I think, defective in not stat- ing the amount, and the practice of issuing a ca. sa. under these circumstances, though it once prevailed, has, I believe, become obsolete. Per Curiam.- allowed. -Ca. sa. set aside, and amendment The King v. Justices op Newcastle. Justices of the peace cannot apply the district funds to building a now gaol and court bouse, without an act of parliament, specially conferring that authority. The certiorari which had issued last term to the justices of Newcastle had been brought in on a former day, and the return filed. The return set forth vari- ous orders of sessions, applying large sums of money towards building a new gaol and court house in the Newcastle district. There were orders also to authorise a committee to enter into contracts for building, and to obtain a lot of land adjacent to the old gaol and court house, and to authorise levying a full rate for the present year. It appeared also that the building had been commenced, and about £2,400 of the district funds actually expended on it. TRINIW TERM, 1, OEO. IV., 1880. 206 The Atlorney-Gmeral, on (he relurn bemg filed moved to qnash these orders on two grounds s.' hat withont an act passed for that ezpfess purpose the jusfces had no power to build a new Snd court house ; and 2nd, that they had no author ty to apply the rates and assessments for that purest an attdaTit, that no gaol and court house had been tods t^T " ''T"""' °»' "f "-= "'^'^t lunds. They then argued, that a general anthnrin, III n ; ' '• ; ™' ''*'"'" ^^ "y fte 42 Geo ™tle %;r'^'y f-'^led to the district of New-' castle. The magistrates, by the former of these i';r:^e^:tthf;''afo'?r.°vi' Now, as the building hift^ttu^^'s",';: ^d court house was not built out of the public fS The vested m them by law, and are at this moment onlv doing what the statute empowers them. It was Z n«ed«,at the British statutes, and particula^ -4r r ' r. , "I' i;"?:' ilo h 206 TPRINITY TERM, 11 GEO. IV., 1880. the passing of that statute to have the building finished. It is therefore impossible to say that they are now acting under its authority. The sum they have now expended on the new building exceeds the annual income of the district, and they have ordered a new rate. But the application of the district funds to this purpose is no legal expenditure, and all that money, in the eye of the law, is still in the treasurer's hands. The order for a new rate is therefore con- trary to 59 Geo. III., c. 7, s. 8. The court took time to consider, and tl;i ; day their opinion was delivered by The Chief Justice. — In this case the court are moved to quash certain orders of the quarter ses- sions, for building a gaol and court house in the dis- trict of Newcastle, which orders have been removed hither by certiorari^ granted on the prayer of the Attorney-General. It is objected to the orders that they are absolutely illegal, the justices having, as it is said, no power to build a new gaol and court house without express legislative authority, from whence it is urged, that they are expending the district rates on a building which, when it is finished, cannot be appropriated by them to the purpose for which it is erected. Such an expenditure it is also contended is beyond their authority, and it is stated as a griev- ance resulting from these orders, that by undertaking these buildings without any legal right, they are use- lessly incurring such an expenditure as compels them to continue upon the inhabitants of the district the charge of a full rate, when otherwise it would not be required. On the part of the justices these orders have been defended, and they have maintained: 1st, A, TRINITY TEEM, 11 GEO. IV., 1880. 207 that they had a right to erect a gaol and court house for the district; 2d, that they had a right to place it where they have placed it, and 3d, that they had a right to appropriate the district rates towards de- fraying the charge of the buildings. There cannot be a more convenient arrangement of the question than this order, in which it was con- sidered on the argument; but every thing manifestly depends on the opinion that may be formed on the first point, since if that be found to be unsupported it IS to no purpose to discuss the others. If the justices had no power of themselves to take measures for erecting a gaol and court house it fol- lows of course that they had no right to place it anv where, or to expend any public moneys upon it Novv all that can be material to the decision of this lirst question lies in a narrow compass. It is stated in books of the best authority, that by the laws of Eng- land, " gaols are deemed to be of such universal con- cern to the public, that none can be erected by any less authority than by act of parliament "—2 Inst 706 IS expressly upon that point; and accordingly in England, the statutes 23 Hy. VIII, c 2- 5 Eliz c. 29; 13 Eliz. c. 25; 11 & 12 Will. Ill, c.'ig- and 24 Geo. III., c. 64, have been passed to establish a convenient system for the regulation of this important matter, on which the interposition of legislative autho- rity was so clearly held to be necessary. The last mentioned statute is now in force in Eng- land, and the provisions it (>ontains are excepdingfy .ludicious and convenient, and such as in general are perfectly applicable to the circumstances of this pro- vince. ^ fits- i d;: \. , -*"1^ ft ¥ 'C 208 TRINITY TERM, 11 GEO. IV., 1880. It has been argued on the part of the justices in this case, that the statute 24 Geo. III., c. 54, is actu- ally in force here; but without deciding that question, it is sufficient at present to say, that no authority to be derived from that statute could justify these or- ders; and indeed, in considering their validity, the statute may, without prejudice to the justices, be left out of view. It is either in force here or it is not. If it be not, of course these orders cannot be vindi- cated under its authority. If it be in force, nothing can be more certain, than that these orders were illegally made, because that statute wisely provides that there must be a presentment of a grand jury, and that public notice must be given before such measures are entered upon as have been adopted here. That the general principle of the common law of England, which requires the authority of the legis- lature for erecting gaols is in force here, I have no doubt. It is a principle involving important conse- quences to the administration of justice, in civil and criminal cases. It remains therefore only to examine, whether that principle has been superseded or de- stroyed within this province, by any general act of our legislature. I think it has not, but rather that it has been recognised and received confirmation by several provincial statutes; so that, in my opinion, as applied to the several districts of this province, there is no general continuing authority, under our local laws, residing in the justices, enabling them to build new gaols and court houses, either when the former have gone to decay, or are thought by them to be inconveniently situated. There is next to be en- quired, whether, in respect to the district of New- castle particularly, there was vested in the justices, immTr tbrm, n oio. it., isso. 209 by reason of any legislative enactment, or of any cir- cmnstocea, a power to make the orders wh.°h are meir aistnct. The arguments that were raised on the provincial statutes 42 Geo. III., and 45 Geo In were .ngen,ons; but they must fai to produce eon -««>easthes^dSs-.Td':„^i:::?',i\ti:: bv Irdlsfnvr ■ "■ ""' "f *" f'-d produced by the district assessments and rates or otherwise it shall be lawful for the majority of his M^e ^ „ ficcs of the peace, residing within the disl^iet to an- was substituted for the town of Newcastle, we^buai ftom the district assessments, or, as it wa said fr"m flie subscriptions of individuals, it is neverthele ' to be reccBmsed as the legal gaol of the district It s admitted to have been long used as such and he justices in their order gave no other reason for desfr! He. This being so, I cannot entertain a doubt that «o other goal can be substituted for it by the mere act of the justices, and I think it was correct ysS conld not be legally used, and would notconstHu^ h^^ol and the prisoners could not legally be moved rato It. The case m 7Mod. 280 is in point expressly ' I 'l-' \H u'^ 1 t^' ^H i ■ ^H^K't.- •f H :^H 1. ' ^^1 M ^^^^^H^fc.3rt iti ^^1 ^^Hl' '^^ 1 ^1 ^^Hslt-'i t ^H ^^^^^^^^g i. ^ ^^^^^^n?^ ^^H * ^1 ^^H^>' ^^1 ^^^^^^^^^^f. i ^^1 ^^^^^^H|f , h' ^^I ^^H^' ^H ^^^^^^^^^ > « ^^^1 ^^^^^^^^n^ 1 '{ 1^1 ^^^^^^B 1 , ^ ^1 ^^^1 ^^^^^^^^Ki''"*^"' ^^^^^^M IH 210 TRINITY TBRM, 11 OEO. IV., 1880. But, though this is my opinion at present, I desire to be understood as merely intimating that opinion, and not pronoancing a formal judgment. The ques- tion from its general nature is important. It may aflfect other districts, and the sooner it is known in what light it appears to the court the better. Upon the propriety of quashing these orders immediately, I have not come to a conclusion, though as to the power to quash them 1 have no doubt, on the autho- rities cited last terra, and particularly 4 T. R. 591. It has been said in the Court of King's Bench, in a case somewhat similar, that though these questions may appear clear to the judges, they may not have appeared so clear to the justices; and, indeed, it was candidly admitted in argument here, that the justices most probably conceived they were doing nothing but what was right, and their duty. In 1 Burr. 247, Mr. Justice Denison says he " will intend every thing in favour of the justices in their orders." It is denied by no one that the present gaol and court house are altogether insuflficient. The justices in their orders declared it to be untenantable, or untenable, and that is not disputed. It was necessary, therefore, to pro- vide another. It is not alleged that the old one should or could have been repaired. To have built on the very same site, could not have been done with- out pulling down the old one, and thus leaving the district without any gaol. The justices have not pre- sumed to change the site to any other part of the dis- trict than that which the legislature had sanctioned. If they had, I could not have looked upon that mea- sure in the same light that I regard their present order. They set about building a new gaol in the same place, though not on the very foundation of the TMiiiiT mm, 11 oEo. IV., leao. 211 old one. I think it very possible thev mav have autnority. If others, who complain of their- ordpi, M not think so, why did they ,,o, peren^ lih ap; ply for the interposition of this co rt. The reason was given last term. It was said they or their Tun sel were not aware sneh a course confd be take^ pereeive that one of the gentlemen, whose affldavi was filed on the motion for the c^iiorari (ha, 1 ' ma e h«t term, was one of the justices pres'e lie" ftese orders or some of them, were made. He elthtr concurred then or dis.,entcd, and in either case he must be supposed not to be aivare that the ^o, »uld be restrained, and their oZ^^^STu' shouldhave applied, before many huS of Cnd: have been expended upon contmcts entered Irr h before the building was far advanced towlltl dtrandlS r r-^ '" ^'~^ » '" l; aone, and if this arose because others were nncer,»i„ OP Ignorant what the law was, it is not ™r «" 2^ that a full .ate is^tt :?XTa: rr. ■-•1 1 ni ' If :nfr>' 212 TRINITY TERM, 11 GEO. IV., 1880. authority the site could not be changed; and of that fact they could scarcely be ignorant, though it may not have been sufficiently known that the justices re- quired legislative sanction to build a new gaol in the same situation. It is the want of that authority which alone raises an objection ; we cannot know whether the legislature would refuse to confer it, or whether the inhabitants generally would desire any thing else, and therefoie I think we should be acting most dis- creetly, considering how lately recourse has been made to us, to forbear any final interposition till the legislature can have an opportunity of deciding the matter. I am aware that, from the same causes, the Court of King's Bench in England have suspended pronouncing their judgment, even when they had no doubt upon the legal question involved ; and I am happy to find, that on an occasion exceedingly simi- lar, the same course was taken by the judges ; and avowedly in order to give parliament an opportunity of rendering legal, if they should think fit, an order of justices, that was plainly out of the scope of their authority. I refer to the case of Rex v. Loxdall and others ; Burrows, 445 ; and upon that authority, although I do not pretend not to have made up my mind upon the legal question, I pronounce no judg- ment at present upon the motion for quashing these orders. The justices, however, are not to understand that they have the sanction of the court, either ex- press or implied, for continuing to act upon the orders which have been removed ; but that the court only forbear, at present, pronouncing their judgment for quashing these orders, and thereby absolutely nulli- fying all that has been done; which would throw upon the justices, and possibly upon the district, the most TRINITY HEM, 11 OBO. IV., 1880. £13 mconvenient consequences. If the legislature shall • decline to interfere, such a judgment of this court as the law may require, must ultimately be pronounced. Sherwood, J., and Macaulay, J., concurred. Church v. Barnhart. In debt on bond, order for parUcular« of breaches will be granted Debt on bond, conditioned that a prisoner in exe- cution should not leave the limits. Baldwin moved for particulars of breaches, and the court seeming in- clined to grant the application, it was consented to by the Solicitor-General. Truax et al. v. Christy bU, plaintiff BhoiJd have demurred! P'"^*"* °° '"•'"°''- ^• Assumpsit on a special agreement. The declara- tion contained two counts on the agreement, and the common counts. The defendant pleaded the general issue and seven special pleas. The facts pleaded were such as could have been given in evidence under the general issue; one waa fraud and covin. Notice was given to the defendant's attorney, of the plain- faffs mtention to apply to the court to strike out all the pleas but the first, and on a former day that mo- tion was made by the Solicitor-General. The Attor ney-General shewed cause. The court will not strike out pleas on motion, unless they are evidently absurd and nonsensical, or filed vexatiously. In the present case every plea will oe a good defence to the action • i' ' li i '; it . ■> ''t i i 214 TRINITY TERM, 11 GEO. IV., 1880. if proved. Excepting one, they are all pleas of a eonditioQ precedent ; and if this bad been an action • of covenant, they must have been so pleaded. It is true that^the court have granted motions similar to this, but it is principally in cases when pleas, leading to different issues, are put in without necessity. As where one plea would be tried by the record, another by the Bishop's certificate, arother to the country, and a demurrer. Each of the issues to be thus tried must be determined by a different mode, and if these pleas appear unnecessary, the court will strike them out. It is too much to say that the pleas in this case can be considered trifling with the court, or abusing the indulgence allowed of pleading several matters, when every plea constitutes a good defence. The Solicitor-General, m reply, urged that these pleas were to be considt^ved in the same light as unneces- sary counts in a declaration, which the court will frequently strike out on motion. The same reason applies; all that can be proved under any of them can be proved under the first, and the record is unne- cessarily loaded with pleadings, all the facts of which are substantially put in issue by the general issue; he cited 1 Chitty's Rep. 355; 2 Chit. Rep. 642; 1 Bing. 66; T Mod. 351; 6 M. & S. 134. Judgment was given to-day by the Chief Justice, as follows : The Chief Justice. — The ground ou which the court will set aside pleas is, where they are either double, or inconsistent with one another. In this ease we are asked to do so, because it is alleged they amount to the general issue, which is also pleaded. This is certainly a good ground of demurrer, but it does uot by any means follow, that we should decide TRINITY TERM, 11 GEO. IV., 1880. 216 It on motion— perhaps it is desirable that the court should assume such a power; but I am not prepared to do It without any precedent. I cannot find that It has been done in any similar case in England although there are many reports of demurrers argued on objections precisely similar. None of the cases cited shew this to have been the practice, but rather the contrary, and I am not at present prepared to introduce a new system. Sherwood, J., concurred with the Chief Justice . Macaulay. J., differed.-I think that from a view of the case a pnnciple may be extracted. The party must obtain the leave of the court to plead double in England. Here he does it by authority of our stat- ute, but it is done, subject to the power of the court to correct and restrain him. Suppose that in Eng- land a defendant asked leave to plead five or six such pleas as are put in this case, would the court permit hira? I think certainly not. In an action for an escape, or founded on a bill of exchange, or a promis- sory note, the general issue would put the parties plaintiff on proof of every material fact. Ought a defendant, in such a case, to be permitted to split the facts of the defence into several special pleas ? In this case, the declaration sets out every material fact and allegation, and the plaintiff is put to the proof of each of these by the general issue— for what good purpose are they denied in distinct pleas? The courts do not hesitate to strike out superfluous counts in a declaration. I cannot see any principle by which that course can be distinguished from the pre- sent. The whole defence can be proved under the general issue. Nothing is stated in any of the special t«r" 11 216 TRINITY TERM, 11 GEO. IV., 18M. pleas, which is not admissible under that plea. The pleas are evidently useless, and that being the case, 1 think they should be set aside. The learned judge cited the following cases: 3 T. R. 124; 13 Ea. 256; 2 B. «k A. 197, 777 ; 4 T. R. 194; 1 Chit. Rep. 626, 666. Per Curiam. — Diss. Macaulat, J. Rule refused. Dob on the demise op Magher v. Chisholm. In an aetioo of ejectment between a person claiming as heir, and a stranger, the court allowed very slight evidence of pedigree to go to the jury. When the jury found tliat a will had been revoked, upon very conflicting evidence, the weight of which, in the opinion of the judge who tried the cause, was against the finding, the court refused to grant a new rule. Ejectment for lands in Toronto, of which one Thomas Carroll died seised. The cause was tried at the last assizes for the Home District before the Chief Justice. At the trial, the evidence to prove the lessor of the plaintiff, the heir at law of Thomas Carroll, was as follows : — that Thomas Carroll employed a per- son to write to Ireland to enquire about his sisters and their children : — that a letter was received in reply, stating that his eldest sister was dead, and had left two children, viz., the lessor of the plaintiff and his sister. There were other members of his family spoken of, but excepting one sLter, they all appear- ed to have died without issue. The sister was said to have been married, and to have left a son, whose death was not clearly proved. The lessor of the plaintiff came to this province with his sister, and they were acknowledged by Thomas Carroll as his tamr tarn, i, oeo. iv., ,sm, jlT ship, tat waVovTrrd iTT'' '"' """^ "^ ''^'- scribing witneZ thf; Th ?,'''""'' >>y"™s»b- desth, made h s »ill a^ , J """"i F"^'""' "^fo^e hia satisfaction at haTinir nTh?. ^ ^pressed hisdis- '".aa, and, ^Z' C^^XZZT '''''' nesses to both deed and win „ n '"'"""'"■8 W't- wiich was Kiven to hi™ J ,: ^"'"' ''"" "■« 'J«e ra n 1099 ; and that all the branches inte'pised between the claimant and the ancestor, which, I'f in exi 60™ ^i (a). The evidence m this case, on these noinf, seems principally to consist in lett rs, wh h rno; appear to have been written by any memZol T tolly ; and which do not set forth on XalLw ?jrs;^ct:mJrH35 Uiratmg. It « „„t pretended that the will °n one, Uon was either burnt, cancelled, torn orXerated but 1 18 argued that the testator's intent Cas hi™ and that as this act was prevented by thTtad^f the devisee, it operates as a revocation Great stnctaess is required by the statute in the execu ton of wills to pass lands, and the decisions hew Ca K" ni, f '^' M Ik' . ^; '1 ■ ^Ht' '^l ^ ^1 ■ HRP'' i ^1 w^ ' " ^H 1 1 w *Vr-^H 'i' 'f '^^1 ^''1^1 'iiiM 220 TBINII7 TERM, 11 GEO. IV., 1880. li':!^* rigid compliance has always been required with its terms — Show. 89. The words relative to a revoca- tion are equally strong with those referring to the execution of a will. The destruction of all the sheets but one of a will, under particular circuipstanoeB, was held no revocation — Eq. Ca. Abr. 409. It is a principle, that the execution of a second will revokes a former — 3 Atk. 798. Yet when a second will Wfifi executed, but the witnesses did not subscribe in the testator's presence, it was held that the first will, though cancelled, was not revoked— 2 Vern. 742. So when there was a second will, but the contents were unknown—Sal. 692 ; 3 Wils. 497. Wherever the court hav^ leaned to a liberal construction, it has been to support the will. Here they are asked by that means to destroy it. The most unequivocal intention to devise would not avail, unless done ac- cording to the statute ; why then should it to revoke, admitting that the fraud alleged was clearly proved, which was by no means the case. It is clear, that the mere intention to revoke, unaccompanied by the act, cannot affect the will — 3 Burr. 1244 ; 4 Burr. 2512 ; 3 B. & A. 489. As much perjury and fraud might be committed to revoke the wills, as to set them up ; and if evidence of a testator's intention to do that which he manifestly has not done, can be ad- mitted for the purpose of destroying the will, half the benefit of the statute will be lost. The court took time to consider, and this day their opinion was pronounced by the, Chief Justice. — This is an action of ejectment brought by John Magher, as heir at kw to Thomas Carroll, deceased, to recover certain lands in the TRINITY TERM, U OBO. IV., 1880. 221 township of Toronto, of which Thomas CarroU died seised. It was tried at the last assizes for the Home Difltnct-^the proof of pedigree was by no means sa- tisfactory and conclusive, but I thought there was leg^ evidence of the relationship, sufficient to be left to a jury ; and it was accordingly left to them, with remarks upon its inconclusive and unsatisfactory na- . ture ; and at the same time, with explanations, that the law relaxed much of its strictness in receiving evidence of pedigree ; and that it enabled claimants to recover, upon prima facie cases, though not free from doubt in all circumstances. Proceeding upon the. principle, that when the contest is not between two persons, .both claiming to be heir, but between a person claiming to be heir, and a stranger to the deceased, the court may be satisfied with a pnma facte case, it being at all times open to any person having a better right to the inheritance, to appear and make good his claim. In this province, more especially, which is inhabited principally by emi- grants from other countries, whose pedigree could not be strictly traced in most cases, without great delay and expense, and not without doubt and diffi- culty m many cases, from the obscurity of the claim- ants, there is need of all the liberality extended by the courts in England, to persons offering proof of pedigree. It was contonded, however, that the plaintiff must in this case be nonsuitod, for that there was absolutoly no legal evidence of heirship to to be left to the jury, and the point is again moved against the verdict. The case in 2 Bl. 1099 & 16 Ea. 293 were cited to support this position. The case in Bkckstone, when it is compared with the pre- sent, is sufficient, I think, of itself, to shew that there ' I' •! ' !■ ;M^ . H '»iiti se,«. fl 'A 222 TRINITY TERM, 11 GEO. IV., 1880. was evidence of pedigree, in this case, proper to be submitted to the jury, and that in such a case fts that cited, the court should have been divided in opinion as they were, furnished an authority in favour of the present lessor of the plaintiff. The two cases cited in the argument of that case are much weaker than the present, and it is not denied that verdicts were obtained in them; nor is the authority of these cases objected to. The principal case in 16 East, is deci- dedly in favour of the plaintiff here, and the case in th3 note which was the authority cited for the defen- dant, does not apply here, inasmuch as the lessor of the plaintiff did produce evidence by hearsay, such as the law in these cases receives, that the brother died without issue. John Magher, now dead, is proved by Thomas Magher to have declared to him that all the brothers died without children. That declarations of deceased members of a family are ad- missible evidence to prove relationship, is too clear to be disputed, and this principle applies even where the members of a family are not related by blood. It was so decided in 13 Vesey Jun. 148. See also 3 T. R. 719, 723; besides this, other evidence was given to the same pointe, such as appeared to me at the trial, and I think still to be admissible for the purpose for which it was produced; though it was extremely weak and liable to objection, as was ex- plained to the jury; and at all events, upon the whole evidence, it is impossible to say there was not evi- dence of pedigree to be submitted to the jury. It was such as left room for much doubt, but it was left to the jury, and with a charge strongly in favour of defendant, upon another ground; but the jury found for the lessor of the plaintiff. The case on his side TRINITY TERM, 11 GEO. IV., 1880. 223 would have been much less open to suspicion if he had produced his sister as a witness, or accounted for not producing her, since she could, unquestiona- bly, have given more direct testimony respecting the fiuniiy than any that was offered, and so the iurv were told. ^ Whether John Magher were sole heir or not was very doubtful on the evidence, but no objection on that score was raised at the trial. Some enquiry was made of Thomas Magher as to a third sister of Thomas Carroll, and whether she was married or not but he could give no evidence on the subject and none was obtained of any other witness. The time of Carroll's death was not clearly ascertained and it does not appear on the notes whether it was' before the death of Edward Magher, the only child as ap- pears of the married sister of John Magher's mother I apprehend, although I do not find it to have been clearly made out, that Edward Magher survived Carroll. If he did, he would inherit a moiety, taking the case most strongly in favour of the lessor of the plamtifiF, and excluding the claim of any other per- sons than the children of the intestate's two sisters- but being a joint tenant with John Magher, the latter would take the whole estate by survivorship. So far as respects this part of the case, I am not disposed to disturb the verdict. There was some evidence of pedigree certainly, and more than has been deemed sufficient in other cases. The jury were satisfied with it, and if in truth there be a better heir behind, he may come forward and establish his right Then as to the next point in the case, after the plain- .1 1;, "'I W; 224 TRINITY TERM, 11 GEO. IV., 1880. tiff had proved his case as heir, the defendant set up a title to himself as devisee, and produced and proved a will of the testator, devising the estate to him in fee. The will is a valid will in its terms, and was properly executed; but the heir at law contends that it is not a subsisting will, the testator having mani- fested his intention to cancel it by an act which it is maintained is sufficient for that purpose. The case is new in its circumstances; the opinion which I ex- pressed to the jury at the trial seems to me now, after more deliberate consideration, to be correct- and, though I have been unable to find any case exactly similar, the principle on which the opinion rests is supported by authority. Besides others that might be cited, the case in 2 Vesey Junr. 426 expressly decides in respect to the revocation of wills, that the law is the same in courts of law, as in courts of equity. Lord Loughborough in that case delivers an elaborate judgment upon that point, in which he says:— "It struck me as a point of great difficulty, to make out, without very cogent authorities, that a court of equity could adopt differ- ent rules as to the transmission of estates, from the rules at law, and upon the fullest consideration I can give it, I adhere to that idea, which I think I shall shew to be founded, not only upon such reasoning as satisfies my mind, but upon the strongest authorities, that there is no distinction whatsoever; and this court has no authority, nor has ever attempted to* exercise an authority, to determine that revocations of wills are subject here to different rules fVom those that would govern that question at law. The creation and transmission of estates must be governed by the TRINITY TERM, 11 GEO. IV., 1880. 226 ome law in both courts." In 6 Yesey Junr. 215 r Vesey Junr. 348, the principles of revocations are laid down which are equally applicable in law as in equity; and these, and other cases on that point con- firm me m the opinion that, if the jury found, 'from the evidence, that Carroll, having made his will de- livered it mto the possession of Chisholm, the defen- dant, and soon afterwards repenting of the disposition he had made, demanded it back of Chisholm, in order that he might destroy it; and that Chisholm, mean- ing fradulently to impose upon Carroll, who was an Illiterate man, unable even to read, delivered to him another paper, declaring it to be the will ; that Car- roll had thereupon destroyed that paper in the pre- sence of Chisholm. imagining he had destroyed his wUl. and died without making any other-if the iurv found this to be the case, then I think Chisholm could not be suffered to advance this will, in a court ot justice, aa a valid subsisting will, and thus take advantage of his own wrong. Mr. Roberts, a respectable writer upon the law of wills, thus expresses himself upon the subject of re- vocations:--" Parol evidence of the facts, accom- panying the act of cancelling, is clearly admissible. Ihe principle, however, of the admissibihlfy of parol evidence for this purpose requires that, in a case when the mtended cancelling or destruction of the instrument has been prevented by fraud or contriv- aiice, affirmative proof of the animus revocandi should ^0 be received ; and that effect should be given to the intention so established, even if such intention so eadejivoui-ed to be defeated by fraud were mani- fested by no act of the testator ; it would be conso- 2 G f! If''" ' 'f .If 4 226 TRINITY TERM, 11 GEO. IV., 1880. nant to the general maxims of courts of equity, to give effect to the intention, and to treat as perfected, that which would have been perfected but for the fraud. So the slightest act of tearing, or an incipient burning, amounting only to scorching, will satisfy the statute, when the intention to revoke can be manifested by accompanying acts, or even declarations; but that, mthont proof of /raud, or par- tially executed intention, parol evidence could be re- ceivea to shew a design to cancel, unaccomplished through mistake or accident, no case has yet estab- lished. Such a latitude would indeed tend to frus- trate the caution of the legislature in respect of this object of the Statute of Frauds." Mr. Cruise says of revocations, ''Any act of a testator, by which he shews his intention to cancel his will, though the will be not actually cancelled, operates as a revocation." The jury were distinctly told, that unless they found iihe fraud suggested by the evidence, they ranst give effect to the will. It must, therefore, be presumed that they did find it. The evidence upon which they gave that verdict, however, was exceedingly contra- dictory, and some of it of a questionable character ; and it seemed to me at the trial that it preponderated greatly against the conclusion to which the jury came. It was su^ested that the will was revoked by a deed subsequently executed by Carroll, conveying the estate to the defendant. I have looked into the cases cited for and against that position, and am of opinion that there is nothing in it. The case before cited, 2 Vesey Junr. 246, is very material so far as respects the general principle of revocations by sub- TRINITT TERM, 11 GEO. IV, 1880. 227 sequent conveyance. The deed in this case being destroyed, we have only parol evidence of its con- tents, and that evidence exceedingly xa^ue So far as it can be relied on, it proved the deed not to be a conveyance, but an agreement to convey, and the disposition contemplated is not inconsistent with the will, but decidedly in accordance with it Such as It was, it was soon repented of by the testator, and destroyed by him, as the defendant's witnesses inti- mate expressly in order that the will might subsist ^- ";',,^°;y/'«Position of his property, until he might think fit to change it. The effect of this ver- dict, If confirmed, is to change the possession, and therefore I was inclined to think at first, that a new trial should be granted upon payment of costs : but on consideration, I agree with my brothers, who are disposed not to disturb it. There was certainly some very strong evidence on the side of the verdict by a witness whose character was not impeached. It the defendant be inclined to take the opinion of another jury, he may bring his ejectment ; his case IS plam and simple ; he has but to produce the will and prove it by the subscribing witnesses, and then the question of revocation arises for the jury to dis- pose of -and it is better they should dispose of it without their minds being prejudiced by a judgment of this court, expressing disapprobation of the former verdict, (a) Per Curiam.—nnle discharged. fire and another peraonsMcK '"*V™^ ** J'""'''' " *"' *•*" bnmt. and «,nH IZV^ °**4---i f'- """"^'L^f *•"« enyelope only being the win. Promi^ertrb^ i7,^\f p^e'arfavWnU:!""' "^ ^'^ "' hi I'l Si,' ti If m TRINITY TERM, 11 QEO. IV., 18tO. RoBiNET V. Lewis. In dower, a soggesti^n may be entered after final judgment, that the hw- band ilied seised of lands, and enquiry sbrll go eoneeminc th« dcmagM since that death, though the tenant is the alienee of the hev. The Attormy-General, on a former day, moTod to strike out a suggestion which had been entered on the record in this cause after final judgmeLt oiseisiu — that the husband of the demandant had died seised of certain lands ; and also the award of enquiry con- cerning the damages, on the following grounds : — 1st. That the suggestion should have been entered before, and not after final judgment. 2nd. Because the tenant is the alienee of the heir, and not the heir himself ; and damages ought not, therefore, to be assessed against him for the whole term of which the widow has been deforced. He also objected, that the notice of assessment had been served on the attorney iu the original suit, when it should have been served on the tenant, as this is in the nature of a new prooeedii^. Baldwin shewed cause, contending that this is a continuation of the old proceeding, and the service is therefore good. In answer to the first objection, he cited 2 Saund. 45, (in notes,) where a similar course had been pursued, and a joint writ of kaib.fac. seis. and to enquire of the damages had issued. In this case a joint writ could not go, as the sheriff in this province has no authority to enquire, but the record must be taken down to the assizes. To the 2nd objection he answered, that by the statute of Merton, they that be convicted of a wrong- TEINITY TBEM, 11 QIO. IV.. 1880. 229 ful deforcement shall pay damage to the widow of all issues beyond reprises that accrued since the death of the husband, and cited 1 Leon 50. Attorney.General in reply.-Having entered final judgment, they are estopped from going further A jomt writ of hob. fac. mis. and of enquiry should have gone. When seisin was delivered by the shenflf, the suit was at an end. The damages are nbt the only thing to be enquired of ; the jury must find of what lands the husband died seised, and this cannot regularly b^ done at the assizes. The widow, in order to be entitled to her damages against the present tenant, who is alienee of the heir at law, should first make a demand. The heir can ykad tout terns, prisi but the alienee cannot, not hav- mg been in possession ever since the death of the husband. If the heir plead tout terns prist, and it be found for him, the widow can only claim damaces from the time of demand-1 Lev. 38. If no demand were necessary, the tenant, however short a time he has been in possession, would have to pay damages from the death of the husband, and would have no remedy against the heir, who, if sued, might plead tm terns prist, from the death of the husband to the time of alienation After taking time to consider, the judgment of the court was delivered by the Chief Justice, and it was decided: — 1st. That the suggestion and enquiry may well be after judgment in the action of dower, as in this case- and besides other authorities, 1 Salk. 262 was cited- W3' I ^ 'MmI I a." 230 TRINITY TBRM, 11 GEO. IV., 1880. and that the enquiry may be before a judge at the assizes, and not necessarily before the sheriff, as was argued by the Attorney-General. Barnes 234 was cited, where damages are stated to have been so assessed. 2d. That the demandant rightly claimed damages de morte viri, although the tenant is alienee of the heir, and for this Coke's Inst, and other authorities were cited. 3d. That it appeared doubtful, from what is said in Lev. 409, whether service of notice on the attor- ney to the tenant in the real action would suffice, inasmuch as his authority to represent the tenant may be considered to have been at an end by the judg- ment in the original action. However, the court gave no opinion on that point, as they said the objection, if well founded, might be taken hereafter, if the tenant thought it worth while to insist on it. Per Curiam. — Rule discharged. JRegtda Generalis. — It is ordered by the court that the process for compelling the appearance of a corpo- ration aggregate, in this court, shall be by a writ of summons, in the following form: By the G-race of God, &c. To the Sheriff of Greeting. We command you that you summon the (insert the proper name of the corporation) to appear before us \nov-r fourt of our Bench at York, nn ths day of to answer the complaint TRINITY TERM, 11 OEO. IV., 1880. 231 i^\f '"a plea Of (as the case may be) and have then there this writ. T 7 '^"ffj*'' ^^"' (Chief Justice or Senior Puisne Judge of the Court of King's Bench, as the case may ^^) this day of ^ '°*^^ year of our Reign. Which writ shall be served agreeably to the law and practice m England, in respect to corporations aggre^te; and that if within eight days after the re- turn of such process, the corporation, having been duly served therewith, shall not have appeared, then It shall be competent to the plaintiflF to obtain the pro- cess of e/«/n;iga., and to proceed thereon according to the law and practice in England. Warrev ^/a;/,, Miles O'ReiU^, and Jam, Jessup fisq' ., were called to the bar in this term and swcrn m. ' ,/ I" {)fL">l [282] MICHAELMAS TERM, 1 WM. IV., 1830. Present: The Hon. John Beverley Robinson, Chief Justice. " Levius Peters Sherwood, Judge. " James Buchanan Maoaulat, Judge. Leonard, Esq., Sheriff, v. Glbndennan. The court refused to order an attorney to pay the costs of • suit on a bmd to the limits, he having signed one of the obligors' names thereto, and executed it on his behalf on a mere parol authority. Dickson moved for a rule calling on D. W. Smith, one of the attorneys of this court, to shew cause why- he should not pay the costs of this suit in which the plaintiff had been nonsuited. The action was brought on a bond for the limits. On the trial it appeared that the name of the defendant had been put thereto, and the bond executed in his absence by Mr. Smith as authorised by him. He had only a parol autho- rity, but he stated on the trial, when giving evidence as the subscribing witness, that he had been directed by the defendant so to do, and thought the execution binding. He did not however communicate the fact to the sheriff, nor did it appear that the sheriff was made aware of it till after the action was brought. But the court refused the rule, and added, that before they could grant such an application they would require to be convinced that he had acted mold, fide, and that when he executed the bond and subscribed his own name as a witness he was aware the execution was null. Rule nisi refused. MICHAELMAS TERM, l WM. IV., 1880. 233 Moore v. James. King moved to set aside the ca. sa. in this cause on two grounds. 1st. That the affidavit on which it was issued did not state the debt and that it was made in the alternative, that the defendant has made some secret or fradulent conveyance of his property or has parted therewith in order to prevent it being taken in execution. 2nd. That the affidavit appear- ed to be taken by an illiterate person, but the jurat only stated that " it was first read and explained to him," without adding that he appeared to under- stand it. Cited 4 T. R, 284. The court overruled the first objection, deciding that there was no necessity for setting out the debt in fliia affidavit, and that with respect to the affidavit bemg m the alternative, it followed the words of the statute 2 Geo. lY., chap. 1., and was good. They however, considered the second objection fatal ai the rule of court in England was expressed on'the point, and had been adopted and formed part of the rules of this court. On this ground the ca. sa. was set aside with costs, on the terms of bringing no action. * m' ^ Rule granted. 2h 284 MICHAELMAS TERM, 1 WM. IV., 1880. HUGILL V. DrISCOLL. Where the defendant resided in one district, the plaintiff in a second, and a witness in a third, and the defendant was applied to for payment before action brought, which he refused ; the court directed the master to tax full costs, although the defendant had confessed judgment after issue joined for a sum within the District Court jurisdiction, which the pluntiS' accepted. The master refused to tax King's Bench costs to the plaintiff, (the cognovit being within the jurisdic- tion of the district court,) in compliance with the ninth rule made in Easter Term last. Small now moved for an order on the master to tax full costs on an affidavit, stating that the plaintiff resided in the Home, the defendant in the Newcastle, and a necessary witness in the Niagara District ; and further that bpfore this action was commenced appli- cation was made to the defendant for payment, who refused, stating his intention to defend. A cognovit was sent to the plaintiff's attorney last assizes. The court, on the ground that the plaintiff had good reason to expect there would be a defence, and therefore, that he might reasonably expect to require the attendance of a witness not residing within the same district court jurisdiction as the defendant, Granted the rule. Anonymous. A rule to return a.fi.fa. cannot issue out of the office of a deputy clerk of the Crown in an outer district. The court held that a rule to return a writ oi fieri facias could not issue out of the office of a deputy clerk of the Crown, in an outer district, as the writ itself did not issue out of that office; and the proceed- ings in the cause, final judgment having been entered, were necessarily in the Crown office at York. w. MICHAELMAS TERM, 1 WM. IV., 1830. 236 loond, and a n«nt before aster to tax i after issue the pluntiS' costs to jurisdic- with the laster to ! plaintiff 3wcastle, rict ; and 2d appli- ent, who cognovit (ses. ntiff had >nce, and require ithin the ant, e rule. puty clerk of it oi fieri a deputy the writ proceed- entered. iS". Whitney v. Stone and Wells, bail op Smith ''"""'*^iutei\V3LW'« *" '^' "*""' * '"'"■P'«<=« •»»«* "e trans, miiiea to a judge of K. B. or it was not regularly put in. Debt on recognizance of bail had been brought against the defendants in this cause, and a number of objections were raised on an application to stay the proceedings: but one single point was decided which went to the foundation of the cause. The original action was instituted in 1812; and special bail was entered for the defendant as of Trinity Term in that year. The bail-piece was filed in the office of the deputy clerk of the Crown in the Johnstown district, but it did not appear that the bail-piece had ever been transmitted to, or filed through the inter- vention of a judge. The Chief Justice and Sherwood, J., had both been engaged in this cause when at the bar; and the cause was argued in vacation, at cham- bers, before Macaulaij, J., who this day delivered his opinion on the one point above mentioned. Maoaulay, J.— By 34 Geo. Ill, chap. 2, sec 27 provision is made for the appointment of commis- sioners to take bail " in such manner and form and by such recognizance as the justices of the Court of King's Bench might take or thereafter think fit; which said recognizance of bail so taken should be transmitted to any one of the justices of the said court, who upon affidavit made of the due taking of the recognizance of such bail, by some credible per- son present at the taking thereof, should receive the same; which recognizance of bail so taken and trans- mitted should be of the like effect as if the same were taken de bene esse before any of the said justices." A jndge of assize, on his circuit, might take such recog- mm n mm I'M ■rJf' V-- ■ • 286 MIOHABLMAS TEBU, 1 WM. IV., 1880. nizance of bail, which being transmitted in like man- ner as aforesaid, the court were authorised to make rule for the justification of such bail. At present, by 2 Geo. IV., c. 2, sec. 40, commis- sioners may in liks manner be appointed to take bail, and the bail-piece with the affidavit of the due taking thereof shall be filed in the office of the clerk of the Grown, in the district where the same shall be taken, iuid being so filed shall be of like effect as if taken in open court. In Easter Term, 46 Geo. III., (1806), it was or- dered that the practice of this court should conform in all possible respects to that laid down in Tidd and Sellon. I In Easter Term, 60 Geo. III., it was ordered that all recognizances of bail taken by commissioners and transmitted, should be delivered in person to one of the judges of this court, by the party, his attorney or agent. 3^^l^^^l^^l^^^^9 The first question is not whether the omission to transmit the bail-piece would have entitled the plain- tiff to treat it as a nullity, or to have excepted on that ground, but whether the bail-piece constitutes a recognizance valid in law which the plaintiff might adopt and recognize, or whether by proceeding to declare, &c., he waived the bail altogether. HIIHII^H^^HH The provincial statute clearly contemplated the transmission of the bail-piece to a judge; and the rules of court long subsequent to 1812 evince the opinion of the court as to the existence of the prao- Jti'^e. They refer also to Tidd and Sellon. ■ MWIUBLMAS TBRM. 1 WM. IV.. 1880. 237 v^l^T^ ! "^ '^' ^""'* °^ ^^S's Bench m Engknd, bail m town are put in before the court or fhitf 1 '""'^T^l' ^' ^t Ws house ; and prior to the bail attending the judge to enter into the ne^es^ sary recognizance, an instrument called a bail-piece 18 prepared, which it is said may be considered the foundation of the recognizance. The condition of the recognuMnce does not appear as part of the baU- piece, but the judge, or his clerk, verbally repeat the undertaking, and the acquiesence of the bail is caUed entering into a recognizance, and their liabilitv as bail immediately commences. It was, however at an early period ordered that no bail taken before a judge m chambers should bind the plaintiff with- out his assent thereto, or the confirmation of such bail by all the court.-2 Sid. 91. Consequently aotice of bail is required, stating names of baO where to be found, &c. The rule recited does not affect plaintiff 's right at once to acknowledge the sufficiency of the bail The notice should state before whom the bail was put in and the plaintiff may accept or except to them' which acceptance may be absolute or by implication' BaU may be entered before commissioners under the statute, but such bail is entered sub modo, to become effectual by transmission duly authenticated to a judge. Until transmission the acknowledgment be- fore a commissioner appears to be an inchoate act and the filing the bail-piece in the district office would not seem to help it, (vide Petersdf. 287 et »eq.) That bail before a commissioner is not (Con- sidered as put in till transmitted, and filed with a judge, may be gathered from the following authori- f 238 MICHAELMAS TERM, 1 WM. IV., 1880. ties—Imp. Prac. 137 ; 1 Arch. Pr. 116 ; 1 Se!lon 143, 4; 1 M. & S. 199 ; 5 B. & A. 704. Rtiles of K. B. Michs.; 8 Win. & M. — and that the bail may urge the objection, — 1 East. 603. Upon the best con^^ideration I have been enabled to give this point I arrive at the opinion, that the omission to transmit the bail-piece rendered the proceedings a nullity. A bail-piece duly transmitted has only the same validity that would attach to it if entered before the judge who received it Without the statute no commissioners could have been ap- pointed, and the statute declares how far such com- missioners shall be concerned in the perfecting of bail. Whether after the establishment of our dis- trict offices the course of trpnsmitting the bail-piece to York was consistent witi\ practice thereby in- tended, is not the enquiry. The statute in England and here, merely appoints the commissioners to act as agents of the court or judges, and the authority grantea must be pursued. If bail was not efifectually entered, the bail could not arrest or render their principal. The plaidtiff in the suit, it is seen, may waive or exact certain formalities, as notice, &c., superadded to the entry of bail ; but if the recogni- zance is not so taken as to be obligatory, his future acts, instead of attaching obligation, will be regarded as an abandonment of the right to such security. In addition to the above, it is in this case to be observed, that the affidavit of caption may not have been sworn before a person clothed with competent authority to administer it. It is taken before Henry Arnold, deputy clerk of the Crown. t¥f: MICHAELMAS TERM, 1 WM. IV., 1880. 239 If the bail-piece therefore be a nullity, and such is my opinion, the foundation of the action fails, and it is unnecessary to decide upon any other objections which have been raised. Rule absolute to stay proceedings. Atkins v. Thornton. I- cae for ...„ ..e co„. j^Uo. ,.„,_,,, „„ ,,^ ^_^ ^^ ^^ I'his was an action for a verbal slander The cm') was clearly proved at the trial. The defence set up was insanity on the part of the defendant but no proof was adduced of it. After the jury 'had retired to consult and returned into court to deliver their verdict, the judge who tried the cause was applied to, to charge them how much was necessary to carry costs, which he declined doing at that stage of the trial. The verdict was then given for one shilling. Bidweil moved lor a rule nisi for a new trial, and IsuUtvan argued on the other side. Chief Justice.-I think it quite imoossible to grant a new trial in this case, consistently with the authorities. It is true that in many cases, perhaps m this particular instance, a plaintiff would sustain less actual injury if a -verdict were rendered for delendant. That might arise from a failure of evi- dence, from conflicting testimony, or because the words complained of wore not used in the slanderous mapuer imputed, or were coupled with such an ex- ^t! ..r t, i,»'i i'.n ,1. •I* .tiriiiLJi 240 MICHAELMAS TBRH, 1 WM. IV., 1880. planation as would do away with their injurious tendency. But giving one shilling damages, shews the slander to have been indisputably proved, while it also shews that the jury thought the plaintiff entitled to no coinpensation. However, this is a vindictive action. Unless under very special cir- cumstances, the court would not interfere on the grouttJ of outrageous damages, and therefore it is less proper that their interference should be ground- ed on the plaintiff's complaint that the damages are too small. Sherwood, J. — The court have no standard in actions of this nature by which they can undertake to measure the damages. It is one of those questions which must be left to the sentiment and feeling of the jury, who hear the evidence and most probably know both parties. I do not think the smallness of the damages is to be considered as necessarily re- flecting on the plainlifT 's character. The jury in the first place find the slander untrue, but that the plaintiflf sustained little or no injury from it. His accuser, in their estimation, was probably unworthy of credit, or, as was urged at the trial, he was not in his right mind. I quite concur with the learned judge who tried the cause in his refusal to enter into the question of costs under the circumstance of the case. Macaulay, J. — I submit to the authority of the cases reported, but not to the reason of them in refusing a new trial on the ground urged. I think the verdict in this case should have been greater ; and if I had supposed when I was giving my charge that the jury would have found as they did, I would MCHAEIMAS TEEM. 1 WM. IV., 1880. 241 have explained distinctly to them what sum it was necessary for them to give in order to carry costs. After they came in prepared to render their verdict I could not give that explanation. If I could find any authority to support me I would wish to grant a new trial now, but the current of decision is altogether the other way. Per Curiam.— Rule refused. I' i*- Small v. Mackenzie. The court held that parties are bound to reply rejoin, &c., in eight days after service of a proper demand thereof, and that the proper mode of obtain- mg further time for that purpose is by rule of court m term time, or by order of judge in vacation j and that a side bar rule does not issue in this case. This decision was grounded on the forth rule of this court made in Easter Term last. h'' h^. '■ ^^IM "« Beard v. Orr. The plamtiflF m this cause died after the defendant had been charged in execution and had obtained a rule for his weekly allowance, and received it for a considerable time. The first Monday after the plain- tiff's death the allowance was tendered to defendant by the person who had usually paid it, and was re- 2 I 242 yiCHA£I.SI4S TEBIf, 1 Vr|l IV., WO- fused. The same thing took jpiace for two or thjf/de weeks ejjsuing, whun adijiiaiatratio» was taken to plain^ff's estate. Au application was made to d|B- (^ge defendant out of custody on the ground ttiat these tenders of payment were ineffectual, not having been made by a person duly authorised or having any privity to the plaintiff's estate. That they were to be viewed as no tender, being made by a mere stranger, and defendant was, therefore, entitled to his discharge, and 1 B. & P. 366, 176 ; 1 N. R. 306 ; 2 N. R. 240 ; Bar;ies 356, were cited. The court said, il n^^ght be urged with great shew of reason, that the provincial statute being silent with regard to the payments being made by the exe- cut{)fs or administrators of a deceased plaintiff, some othef person might do it on behalf of the estate. In the cases cited there had been a great delay. The plaintiffs in two cases had been dead more *}t|^^^ a ye^, and then there was neither executor nor ^Imin- i^trator, nor h^ any payment been piade. Even if in this case no payment had been mad/e between the death of the plaintiff and the granting administrati,«jn, there having been no unreasonable delay, it might be questioned if the defendant would have been en- titled to his discharge. Bule refijsed. Draper for plaintiff. Ridout for defendant. R «ttBA«Li»AS Timjr, 1 m. IV., mo. 2^ IfeUMMbND V. BradlET A^HMPsiTfor work and labour, and th, money ^nts mth an account stated. Plea nan-assuinpsit «ad notice set-off. The ptotiff had delivered Pj^Ucnlar of bis demand, under a judge's orFer wtach^was for pointing and glazing Ly. At ^fe trwl tiie plaintiff prored that the def^indant had ac^ knowledged himself indebted to the plaintiff iu a Cer- tern sum. and said it was for painting and glaring. bH. without any reference to the items. The defefll- «rt s counsel objected to thie eviden(.e being rcceiviid fri^Mlof particulars, and could not give a generil acknowledgment of a debt due in evic'.ncc, but must prove the items ot his account as delivered. ^J^f^^'^'^'*'^'''' ""^^ ^"^^ t^« cause, allowed the evidence to go to the jury, with leave to the de- lendant to move the objection. King now moVed a rule nisi to set aside the ver- diet which had been rend,3red for the plaintiff, and to enter a nonsuit on the objection, and cited several authorities. But after consideration, the court thought that the authorities, particularly the modern ones shewed this evidence was properly received, and mentionedi the following cases: 2 B. & P 243- *> & P. 267; 1 Stark 224; 3 M. & S. 380; 1 Cai^p'e^: 4^Taunt. 189; 2B. & B. 682; 6 Mt)ore 567; 4 Esd' 147. They therefore refused the rule. ^'■M, f f' ■r , • f [ 1: 1 ^; 1 fi r:\ 244 MICHAELMAS TERM, 1 WM. IV., 1880. BuaoLES v. Beikie, Esq. In an scUon against a sheriff for the OTerplos of money leried under an «ze- outioo, the plaintiff must prove a demand of the money before action brought. A judgment had been recovered against the exe- cutrix of plaintiff's father, for a debt contracted by him, under which, after a ji. fa. against goods, a/. fa. issued against the lands and tenements of the deceased in the liands of his executrix. Lands were sold for a sum considerably exceeding the amount endorsed to be lev -d. Some years after the sale the present plaintiff brought an ejectment for the lands so sold as heir at law to the deceased, and re- covered possession. Prior to that, an application was made by the executrix to order the sheriff to pay over the overpltis of the levy to her, which the court refused, on the ground that as the land would have descended to the heir the proceeds of it were his. Another ejectment was subsequently brought by the purchaser, at the sheriff's sale, against the heir, and a verdict was taken for the plaintiff sub- ject to points reserved. Before the ensuing term the parties compromised. The heir gave security to the purchaser to repay him the money he had advanced, and he released all his right and title to the heir ; and now this ac- tion was brought against the sheriff by the heir to recover that surplus. At the trial the plaintiff was nonsuited for not proving a demand upon the sheriff before action brought, and it was at the same time urged, that in no event could the plaintiff recover. If the sale were invalid, then the purchaser not the heir should have the money. If the sale were valid, tlien the proceeds, after satisfying the execution, should go to the executrix. MICHAElMAfl TERM, 1 WM. IV., 1880 246 In this term Small moved to set aside the nonsnit aUegmg that no demand was necessary, and no case could be adduced to shew that it is requisite. Attortiey-General, contra, cited 2 B. & C. 684; 3 Chief 'J-jstic ^.— I certainly think a demand ne- cessary, iarticula! ly when the sheriflf is called upon topay th >tt .ney. rotto the original defendant but to a third pen -i, ^?, ^ alleges that he is entitled to it as heir. Itwau asserted that an indemnity had been offered to the sheriff, but a court of law cannot en- force payment on that ground. If, indeed, it had been shewn to the sheriff that all persons who could have a claim had released that claim to the present plamtiff, there might have been more reason for cal- ling on the sheriff, though it would remain a question whether the heir has a right to the money. Sherwood, J., thought a demand necessary. Macaulat, J., agreed as to the demand. As to whether this action is sustainable or not I give no opinion. In answer to Small, who urged that the plainfirf would be barred by the Statute of Limitations if 'a new trial was not granted, it was intimated, though no opinion actually given, that the sheriff could not avail himself of the statute in a case like the present. I r I't, IK S' / , ... ' Per C«ha«».— Rule refused. ftM MtCSAttLltAB TEBM, 1 WM. tV., ISM Cavan V. Weiab. The plsiiitiffmay bring either treapass or case for Mcdiodo'b: Case for seduction and verdict for tlie plaintiff. Bethune moved in arrest of judgment, that the plain- tiff had misconceived her remedy, and that t]fesp«ss, not case, was the proper form of action. Cited 2 N. R. 476: 2 T. R. 167. The court, howevei*, after considering the follow- ing authorities; 2 M. & S. 436 ; 3 Burr. 1878 ; 3 Wils. 18 ; Pcake N. P. 65, 240 ; Gowp. 54 ; Lofft. 493 ; 6 Esp: 32 ; 3 Camp. 420 ; 5 Ea. 46 ; 2 Chit. Rep. 260; 11 Ea. 23 ; Holt. N. P. C. 461 ; * Ett. 388, 251 ; Ball, N. P. 28 ; 2 Stark, F. P. C. 493 ; 3 Wils. 319 — thought either form of action gbod : and Macaulat, J., mentioned the cage of Smith r. Book, decided in this Court in Michs. 3 CMo. IV., wiiere it was so held. Per Curiam. — Rule refused. William Wallace and James Hubhel, Esquires, were called to the bar and sworn in this term. m7] HILARY TERM, 1 WM. TV., l«30. Present: The Hon. John Beverley Robj-tson, Chief Justice Levius Peters Sherwood, Judge. James Buchanan Macaulat, Judge. Ives v. Hitchcock PleM.— Tl«t borws w*re damage fewlm. " RwircliUonTThLTrf' ' "*••.— regnlaUons, fences ahould be flye feet hth .-TPf jV *?'*»Mtu>g not Wpg that height, but ruSus^l'S'ofleJa'i'^te escaped out of his close into defendant's clo«« .„5 £*!f' Pl*'"^« • horsM snd consent of plaintiff. MMl^l'^Z^t^:^' *'"' '""'"•^«« Trespass for taking and selling plaintiff's horses Pleas, Ist—The general issue. 2nd plea to the first count-That defendant distrained the horses damage feasant ; that the damages were assessed by three freeholders, (according to the provincial statute 43 Geo. m., ch. 10,) and that those damages and the pound keeper's fees being unpaid, the pound keeper ^t the request of defendant sold the horses, accord- m^ to the statute. 3rd plea to the first count- That the horses, with the knowledge and consent of plaintiff, were damage feasant in defendant's close whereupon defendant impounded them : that damages were assessed according to the statute: that those damages and pound keeper's fees being unpaid the pound keeper at defendant's request sold them according to the statute: that plaintiff demanded the surplus which defendant paid, and plaintiff accepted t*-" sanofi. 4th plea to first count-That the hordes n h , I ■ 1 i, 248 HILABT TERM, 1 WM. IV., 1880. with the knowledge and consent of plaintiff, were doing damage, wherefore defendant took and im- ponnded them as he lawfully might. Replication to 2nd plea.— That plaintiff is pos- sessed of a close contiguous and adjoining to defen- dant's close: that the inhabitants of the township did at their annual town meeting, in 1828, ascertain and determine that fences on Wolfe Island should be five feet high, and that horses should be allowed to run at large: that his (plaintiff's) horses were depasturing in his close as they lawfully might, and because the fences of the close of defendant contiguous were not of sufficient height, to wit, of the height of five feet, and were ruinous, broken down, prostrated, and in general decay, for want of needful and necessary re- pairs, &c., his horses escaped out of his close into the close of defendant, through the defects and defaults of the said fences, and remained there till the said defendant of his own wrong took the horses, and drove away and impounded them, &c. Replication to 3rd plea.— Plaintiff's possession of the contiguous close; town r eting regulations as to fences, &c., as in last replication: that the fences of the close of the defendant were out of repair; that the horses of the plaintiff, without his knowledge and consent, escaped out of his close into the close of the defendant, through the defects of the fences afore- said; that defendant took them and impounded and sold them, and converted the moneys to his own use, with the exception of the surplus, &c., as in the plea mentionec|. Replication to 4th plea the same as to the 3rd HIIARY TERM, 1 WM. IV., 13«0. 249 i^ Omitting the statement as to selling, &e.. the mm plea extending only to the impounding. Rejoinder to replication to the second plea merelv takes issue on the sufficiency of the fences, asserts that they were five feet high, and were not ruinous broken down, prostrate, or in great decay. &c. General demurrer to the replication to the third and fourth pleas. The cause was tried on the issue in fact, at the last assizes for the Midland District, and the iurv found a verdict for the plaintiflF. The cause was argued last term by the Solicitor. General, m support of the demurrer, and McKenzie contra. ' Chief JusiicE.-We are not familiar in practice with the laws respecting distress of cattle damage feasant, and I have found it necessary to examine it step by step. There remains no doubt whatever in my mmd. that if w, could leave out of view all our provincial statutes and judge of this case by the com- mon law of England, the replication must be pro- nounced bad, and judgment must be for the defen- dant on this demurrer. The question would then tand thus Hitchcock is not bound of common right to fence his close against ihe cattle of Ives If it were possible that he could in this province be bound by prescription, it is not siated in the replication that he was so bound, or that he was bound in ai- -aa ner to repair. On the other hand Ives is bound to keep h,s cattle from trespassing on his neighbour 'A i !l' m 4, % 'f'll I,' 1 260 HILARY TERM, 1 WM. IV., 1880. and therefore as the act of trespass is admitted in the replication, and is not justified by throwing on the defendant the onus of repairing, judgment upon such a case and such pleadings, in England, must be given for the defendant. As all the authorities agree in this, it is scarcely necessary that I should refer to them. In Com. Dig. Pleader M. 2 ; Cro. Jac. 665 ; 1 Salk. 335, 360 ; Fitz. Nat. brev. and 1 Taunt. 529 ; this law is clearly stated, and the case iu Cro. Jac. clearly shews, that an obligation to repair is not inferred, merely because the whole of the fence is on defen- dant's land, as it appears to be in this case, from the language of the pleadings. But we are not left to decide this question by the law of England ; we mast consider how it is aflfected by our statutes, of which there are several bearing on the subject, and in which the legislature have, clearly interposed to qualify or restrain the remedy of distress. It must be exercised subject to these restrictions. "The right of distress, damage feasant," (as stated by Lord Mansfield, Cowp. 414,) "depends upon a peculiar systen) of positive law. Distrainii^g cattle doing damage is a -ummary execution in the fir.st instance." The distrainer must take care to be for- mally right. It .J necessary therefore to consider whether this distress can be supported by our statutes. The first statute bearing on this subject i? 33 Geo. TIT., ch. 2, which declares that the pound- keeper of each township is "authorised to Impound HILABY TERM, 1 WM. IV„ 1880. 251 all horses, ct.ttle, &c, that shall trespass on the lands of any person havinnr enclosed the same by such high and sufficient fence as shall have been agreed on by the inhabitants at their annual town meeting." The next is 34 Geo. 111., di 8, which enacts, " that horses shall not run at large otherwise than under the regulations and restrictions contained m that statute: that the inhabitant householders shall at their annual town meetings determine in what manner an(' at what periods horses shall be allowed to run at large, or to resolve that they ^hall be restrained from so doing ; and further . nat if any horse shall be found running at large contrary to such town meeting regulation, any of the pound-keepers may impound such horse so trespassing, and detain him until satis- faction and payment of fees, &e." The next statute IS 43 G-eo. III., ch. 10, which declares that " any horse taken damage feasant or running at large con- trary to law shall be impounded and sold," and it is under this act that the defendant professes in his plea to have proceeded in disposing of the distress. Taking these statutes together, as they must be taken for the purpose of construction, being in pari materia, I discern no other intention in the legisla- ture than this— that if horses are allowed by their owners to run at large, when by the town meeting regulations they ought not, they may be impounded and sold as a distress damage feasant, at the instance of any one on whom they are found trespassing anc^ this whether the field in which they are trespassing be enclosed by a sufficient fence or not. But that if horses are by the town meeting regulations allowed to run, then they cannot be impounded and sold as 262 HILARY TERSI, , WM. IV , 1880. ll^'i. UJil a distress damage feataat, inless m the words of the first statute they are foond trespassing cm the lands of some person " haviag eLclosed the ; * me by snch high and sufficient fence as shall have been agreed on by the inhabitants at their annual town meeting." This pre visiori is adapted to the actoal state of the province now, md still iiiOi'c; when these statutes were passed, all wliioh the legislature must be sup- posed to have had in view. People had in general but a portion of their lands enclosed, the part that was uncleared commonly lay open, but it was neverthe- less useful to them, that their cattle should be able to run in it and gkan sustenance from the woods. If, however, they were to be subject to have their cattle impounded whtiicver they passed from their woods into woods of tneir neighbours, or even into their neighbours' field, which might often be imper- fectly enclosed, it is clear they could not venture to avail themselves of this use of their unenclosed lands. For the general convenience, therefore, the law was put on this footing by the earliest of our statutes, viz.: "that cattle were to be impounded only when they trespassed upon lands sufficiently en- closed," and as this seemed to imply a general indem- nity against being impounded, unless when they broke into enclosures of lawful height, which arrangement tiiight not suit all parts of the country equally, if it was thought expedient to allow this matter to be regulated by the wi-hes of the inhabitants of each township. They w ' ^^herefore empowered to de- termine in the sevt U townships whether their cattle should run at ^^. :;; ? not ; and whenever they re- strained them K ^ in.w, then cattle so running at large rro' HILARY TBRM, 1 WM. IV., 1830. 2113 illegally, and doing damage, were liable to Jbe im- pounded without enquiry as the suflSeiency of fences. Now it is admitted on these pleadings, that at the place and time in question these horses were al- lowed to run at large. If, therefore, plaintiff's horses had escaped from his close into the highway and had from thence broken into defendant's close there would, in my opinion, have been no right to impound them, unless the close was surrounded with what, in reference to the town meeting regulations is usually called a lawful fence ; but when the plain^ tiff's horses were in his own close they were there at least as much of right as they could have been in the highway : they committed no wrong till they actually broke into the defendant's close, and that wrt)ng could not under our statute law subject them to be impounded, unless there was a lawful fence surrounding the close. The owner of the horses might, perhaps, be subject to an action of trespass however defective the fences might be, and in Eng- land, even where the repair of the fences is the duty of the party trespassed upon, cattle may be im- pounded notwithstanding defect of fences, if the owner allows them to continue trespassers after no- tice. Whether the same principle would under the circumstances apply here, it is not necessary to con- sider, because it is expressly stated in the replication and admitted by the demurrrer, that the plaintiff's cattle escaped without his knowledge and consent The case in Dyer, 317, 318, bears strongly on this ques- tion. " Two men being severally seised of two closes adjoining together, and the enclosure and fence between the closes belonging all to one of tlifem •? u }^ ;si 264 HILARY TEEM, 1 WM. IV., 1880. by prescription, the cattle of the other by a defect of fence, escaped out of his close into the other, and immediately before the owner of the beasts could drive them into his own close the lord distrained them for services. Whether he could do so was the point on demurrer, and was adjudged for the plain- tiff, and against the defendant, for no default can be assigned in the owner of the beasts for this esca,pe, jwr does any law oblige him to keep hin cattle in Us own close.'^ On the whole I am of opinion, that the taking in order to impound, as well as the impounding and selling, were not warranted by the laws of this pro- vince upon the case disclosed in the replication, and as the taking is the very substance oi the trespass which the plea attempts to justify, and was, I think, wholly illegal, I am against the demuner. Sherwood, J., concurred. Maoaulay, J. — The question in this case, though I have found much difficulty in its solution, lies with- in a very narrow compass. The plaintiff in his re- plication, after stating that by the township regula- tions, fences were required to be five feet high, and that cattle were allowed to run at large, says he was possessed of a close contiguous to and next adjoining a close of defendant ; that being so possessed his horses were depasturing therein as they lawfully might, and owing to defendant's fence being ruinous, and not five feet high, they escaped through such defect. The defendant demurred on the ground that plain- HILARY TERM, 1 WM. IV., 1880. 255 tifif has not shewn that it was incumbent upon him to protect his close bj any fence. Did the case rest upon the laws of England alone, the replication would doubtless be insuflficient, no one being thereby bound to fence against his neigh- bours' cattle unless by prescription or other special ob- ligation. The provincial statutes seem to infringe this rule, and the matter turns upon their construction. The ordinance of the province of Quebec, 17 Geo. III., ch. 11, which provided for the repair of high roads, and required the fields to be fenced oflf from such high roads by the owners, and which prohibited horses from running on the high roads, was repealed by the provincial statute 33 Geo. III., ch 4, ^^assed at the same time with the statute 33 Geo. III., ch. 2, hereafter mentioned, and although the repealii, ' statute, ch. 4, was itself afterwards repealed by 60 Geo. III., ch. 1, I do not think the ordinance revived, other provision being substituted. It appears alsr by reference to ordinance 30 Geo. in., ch. 4, that at the time of the division of the province of Quebec, cattle were not allowed to run at lai^fc, ^nough the custom or usage h&^: I len recognised by our provincial legislature as pi c vail- ing in Upper Canada, so much so, that if important to the present case, I think the court would be con- strained to assume that such usage continued to obtain when 33 Geo. III., ch. 2, became a law. Owing to the repeal of the ordinaiice 17 Geo. III. the former regulations respecting fences ceased, and in lieu thereof the provisions contained in ch. 2 were introduced. I ! 1 1 d;.' fi!l ft' ! f < ,1 iM tilt m HIIAKY TSRM, 1 WM. IV.. ItM). By this act the overseers of highway^" were ap- pointed fence-viewers, with authority to determine upon the sufficiency of any fences within their limits, confi^"*^"^^ to the regulations established at the ict^n meetings. This act also provided for the nomi- nation of pound-keepers, with authority to impound cattle that should trespass on the lands of any person having enclosed the same by such high and sufficient fence as should have been agreed upon as aforesaid, and also to impound any stud horses that should be found running at large upon the highways or com- mons, &;c. Considering how the law stood at the period of this act, in relation to fences, pounds, and pound-keepers, it would seem that the statute en- grafted its provisions upon a, previous law, i at that in these respects it was introductory of new : ' in- dependent regulations, on whicli account th«^sie portions that in their language are merely'affirma^" i. may acquire a ! me In coiijjtruction eqivaler to negative terms ; and T incline to adopt the opinion that ^ le sixth section, authorising pound-keepers to imp( nd cattle trespassing on the lands of any person having enclosed the same, &c., iiuplies negatively that cattle are not to be impounded for trespassing, unlesi-) the owner shall have so enclosed his lands, &Q. Such i believe lo have been the contempo- raneoi^L coniStructi&n and liie received sense of the otm it ever sincp. This int rpretation is, I \: iev susceptible Oi universal application consis- tently w th the principS^s of common law applicable to the subject, and amongst others, to the maxim that the owner of cattle distrained damage feasant cannot maiutaiu trespass against the owne~ of the close in which, kc, unless he can shew not only that HIIAIIV lEBM, 1 WM. IV., 1880. 267 the obligation to feaeo was upon th,, latter but that be ea tie escaped from a place in which tLeywere lawfully depasturinnr or bcinn. " H r /,a I was. 120. c - n. B. fi28 : 3 The provincial statute already mentioned iuiplie, bat no one shall impound cattle unless his close be fenced, and that the inhabitants at the annual town meeting are , determine, not whether fences are to be erected or not, but merely the sufficiency ol the fences required by la,-. The oWi,^,i„„ f„ f,Z seems general, and applies as well „. ,he cattle of mdiTidual neighbours, as to cattle running a 1 or legally passing along the public roads. The act 34 Geo. III., o. 8, abrogates the usage or custom o sutreringcattle to run at larjre, unless unde he sanction of the township regulations; and I, for a long time, thought the obligation to fcn^e dep nded upon the usage mentioned, but reflection has Jn vinced me it does not. If cattle running at C contrary to the regulations be distrained daZe feasant, by a person not havin.a suflicient fence Z owner could not maintain trespass ir he would he which they lawfully were; but if .atde alW o run at lai^c and enjoying such easement, or lawful Iv passmg along the highway, though res ricted from running at large, or lawfully depasturing in an ad^ 2"^ held should err into the field of an," individual he occupier could not disirain, unless h s land w«e ™'r^,'i i™f '"■ '""■ ""^"^ "-^ -- »f "" "" r' '" ^"^^ lostauces avail himself of fhp preventive duty imposed upon the party j^rld! Mi I : nmwm^< % m HILARY TERM, 1 WM. lY., 1880. Should the above views be correct, then the replica- tion is sufficient, for the obligation to fence being a general law under the .statutes, the court is bound to notice it, and the plaintiff has shewn *he other cir- cumstances necessary to concur in . »* to entitlp him to urge its omission— namely, what description of fence the regulations required, the insufficiency of the defendant's fence, and that by reason thereof the horses escaped from a close in which they were law- fully depasturino'. into the defendant's adjoining land. I have experienced uo little difficulty in making up my mind upon this demurrer, and cannot say 1 am yet perfectly free from doubt. It struck me at first that the onus of fencing was only designed to extend to cattle running at large, without interfering with the common law rights and duties of individuals in relation to private contiguous closes, or to cattle depasturing therein, and that if the right of distress was not restricted when cattle so at large erred from a place in which they were in the lawful enjoyment of such easement into a close not defended by a suffi- cient fence, it would have been incumbent on the plaintiff, in a suit like the present, to have averred that his horses were running at large at the time they escaped into defendant's field : in other words, that they were participating in a privilege out of which a protection arose not afforded under any other circumstances. It did not occur to me that because cattle might be allowed to run at large it was to be intended or presumed that all cattle taken damage feasant were running at large. On the con- trary, I wa disposed to think it was a inatter of fact (susceptible m some cases of being traversed) whether HILARY TERM, 1 WM. IV., 1880. 259 or not cattle were running at Jarge. I cannot admit that cattle feeding in the owners enclosure, or shut ap m his stable, could be held running at large within the meaning of the usage and the law, when- ever they might happen to escape from such stable or enclosure into the neighbouring grounds. And had 1 come to the conclusion that defect of fences could only be urged in flivour of cattle lawfully run- ning at large, I should not have been prepared to uphold the replication : indeed I should rather have deemed it substantially defective. But since the best interpretation I have been able to give to the statute leads me to believe that it was not intended to al ow any one to distrain, impound, and sell cattle (the latter not lawful in England,) for trespassing and doing damage, unless his lands were enclosed with such a fence as the township regulations prescribed provided the cattle erred from any place wherein they were lawfully grazing or roaming, and not tres- passing, I am relieved from the necessity of express- ing a positive opinion upon a point that engaged (I now believe,) unnecessarily, much of my attention. After all, I cannot say I am perfectly free from doubts as to the proper construction and application of our provincial statutes, but, as at present advised I am disposed to think the replication sufficient for the reasons I have assigned. Per a 23 WIST MAIN STRUT WIUTIR,N.Y. I4SM (71«)I72-4S09 ■i? -**1. \ i\ ^ U ^5^- *M 'i 272 HILARY TERM, 1 WH. IV., 1880. charged by any writing or deed. Surrejoinder to second rejoinder, precludi non, because the said agree- ment was not discharged, waived, determined, and at an end modd et forma, &c., concluding to the country, 2nd count of the declaration. — That defendant, vi et armis, ss. 28th May, 1830, broke and entered another house of plaintiff, situate, &c., as before, and expelled plaintiff, and kept him expelled thirty-live days, whereby, &c. 3rd count. — That defendant, vi et armis, ss. 28th May, 1830, and divers other days before suit, broke and entered divers ss. three closes of plaintiff, situate, &c., and broke gates, trod down grass, depastured with cattle, cut trees, also placed a plough, a cart, a harrow, &c., on said closes, and encumbered the same thirty-five days, &c., whereby, &c. The pleadings on these two counts are precisely similar to those on the first. 4th count. — Asportavit 26 bushels of potatoes and an iron chain, &c Pleas. — 1st, general issue. 2nd, Actio-non, that defendant was possessed of a freehold, and because said goods were incumbering the same he removed them as he lawfully might. Replication, because goods were in a house of plaintiff's, and new aosigns a house on part of 150 acres of No. 6, 3rd concession Loughborough. — To this defendant pleads liberum tenementum as to the house newly assigned, and justifies removal of goods So iRcUiSwsring tns same, iue repticatiGn Ko this HUABY term, 1 WM. IV, ISSO. 278 plea and the subsequent pleadings are similar to those to the first count. At the trial it was proved, that before plaintiff entered into possession of the locus in quo an agreement of the following purport WM entered into : " I (defendant) bind myself firmlr under a penalty of £200 to plaintiff, to furnish him with a good and sufficient deed for 160 acres of land bemg part of No. 6, 3rd concession, Loughborough' m consideration whereof, at the time there is a title given me, (plaintiff,) I bind myself to pay to the said defendant one hundred dollars, and one hundred do ars yearly for five years, namely, one hundred dollars at the expiration of each year, till payments are made." That plaintiff entered in November after the agreement ; that defendant was in posses- sion as owner when the agreement was made How plaintiff got possession in the first instance did not clearly appear, but from all that took place it might fairly be presumed the defendant approved of it It appeared that after the plaintiff was in possession defendant exhibited his title deed, and offered to amvey the premises to plaintiff upon receiving the £26, but defendant did not actually tender » con- veyance. The plaintiff was unable to pay the money, but offered £12 10s. and craved an extension of the time for the residue. Defendant steadily refused any alteration of the terms of the agreement and as plaintiff was not prepared to pay he declared the contract at an end, in positive and emphatic terms to which plaintiff assented, fully admitting his right to do so in consequence of plaintiff's failure De- fendant agreeably to plaintiff's desire then verbally agreed to accept £12 10s. to suffer plaintiff to enioy ihe premises for a year, when he was to pay £37 t l| ' fr. 274 HILART TERM, 1 WM. IV., 1880. lOs., in which event defendant was to convey, &c. At the end of a year defendant again oflFered to con- vey, (but oifercd no deed,) and the plaintiff was still unable to pay. There was evidence to jro to the jury to shew, that plaintiff had actually loft the premises according to the terms of the verbal contract, being unable to pay the £37 10s. before defendant's entry, and sufficient to warrant a verdict for the defendant on that ground. The jury wero charged to. decide. Igt — Whether any act of trespass was proved in- volving the consideration how far the plaintiff was actually in possession at the time of defendant's entry. 2nd. — Whether the agreement was proved to be cancelled or not. The jury found for defendant, but did not explain upon which ground. In Michaelmas Term, Bethune moved for a new trial, for a mistake of the judge at nisi prim, iu having admitted verbal pro: the rescinding or abandonment of the original Ug, . ennent. Cassidy shewed cauGC : and the case stood for judgment till this term. Chief JtsTicE. — Without examining the question whether, in general, an agreement in writing respect- ing an interest in lands, can be discharged by parol, I am of opinion, there is no ground for setting aside this verdict. That it is quite in accordance with the justice of the case, seems plain from the evidence. The plaintiff brings trespass not for any injury offered to his penon, or for any entry on the lands in question, while he was In actual possession of it. To sustain this action, he shews that he had once HILARY TERM, 1 W.\f. IV., 1880. 276 le had once entered iato a written agreement with the defendant for the purchase of this land. By the terms of that agreement no time is set for the completion of the sale, but defendant is to make a title on plaintiff paying the purchase money. By the rules of legal construction the acts were lo be contemporaneous, and though no time is set, it cannot be contended that the defendant was to wait an unlimited time, till it might suit the convenience of the plaintiff to pay for the land, of which it appears he was let into possession. After a time defendant offered to make him a conveyance, but the plaintiff honestly owned he had not the money to pay for it, and the agree- ment was consequently not ca ricjd into effect. The written agreement contains no stipulation that plain- tiff may retain possession under such circumstances. What then ouc^ht to be done? Clearly he should have relinquished the land he could not pay for, and if he had then immediately quitted the premises, and the defendc.it had re-entered upon his own land| could it be maintained that such an entry was a trespass? Surely it could have been no trespass upon a possession, or a right of possession. But then it is explai-^ed why he did not at that moment quit the possession. The defendant was confiding enough to enter at plaintiff's own request, into a second agreement, under which a longer time was given to plaintiff to pay for the land, if he could: he failed in every thing, and finally left the place, and £3 the jury have found (for that was expressly submitted to them) abandoned his possession of it, and the defendant entered upon his own land which the plaintiff had thus relinquished. It is plain, under all these circumstances, that he a i! ; II ,' .1 'i,> 276 HILARY TERM, 1 WM. IV., 1880. ought, in common honesty, to have given up the land and all claim to the title or possession — ^he did leave it, and the jury have found that he did so in- tending to abandon it, and this, after hearing evidence about his leaving some potatoes and things in or about the house, which was a circumstance for them to weigh, as they have done. The question of a parol agreement rescinding a written one, does not present itself here. If it did there is an apparent contradiction in some of the authorities on that head, that would render a strict examination of them necessary. Sherwood, J., concurred. Maoaulat, J. — I shall forbear at present to ex- amine how far the issue of fact raised by a second replication to one of the defendant's pleas could regu- larly be tried, while there js upon the record depend- ing on a demurrer another replication, containing the only unexceptionable answer to the plea, if not itSttlf vitiated by the other, or whether it is compe- tent to the parties by the course of pleading adopted, to create various issues of law and fact, each embrac- ing the same subject matter, and to raise out of the same facts similar questions upon points reserved at nisiprius, and likewise on the demurrer. Confining myself to the evidence given at the trial, I should think it ought to be considered, in the first place, uuder the general issue, and if requisite, in connexion with the special pleas. The first and second counts being identical, they, with the plead- ings applicable to them respectively, may be treated RtLAItr TERM, 1 WM. IV., 1880. 277 together, though it is not without question whether the plaintiff ought not to have been restricted at the trial to one of them— 3 T. R. 296; 7 T. R 727 The special matter elicited was, in my opinion, admissible under the general issue, upon which plea (assuming that ^j^ma facie case, owing to a possession by the plamtiff with the defendant's sanction, at the time when. &c had been established) it was competent to the defendant to shew the original contract waived discharged, determined and at an end, and so to justify peaceable entry into his own freehold 7 T B. 354; 8T.R.403; 11 East. 72 ; Willes 222; 1 iJmg. 158. ' There was much evidence offered to shew that the plamtiff had actually abandoned his possession pre- vious to the defendant's entry, and clearly no forcible or violent possession was effected; but since it was left to the jury to determine, in the first place whether the plaintiff was or was not in possession.' with the direction in the latter event to find for the defendant; but in the former case, to enquire further whether the original agreement continued to exist at the period of the alleged trespass, or had been pre- viously revoked, and if rescinded still to return a verdict for the defendant, and as they did not explain upon which ground they proceeded, it is due to the plaintiff to decide upon the legality of the adverse result in either event. Should the jury have thought that the plaintiff's possession continued at the period of the defendant's entry, in other words, supposing the verdict turned upon t^e lirst contract, I think the defendant's offer I !i ill; I 278 HILARY TEEM, 1 WM. IV., 1880. to execute his part, as proved, followed by the plain- tifiPs declaration of inability to perform his, and a dispensation with any more formal tender from the defendant, as also in evidence, exonerated the latter from the necessity of observing additional formalities, or of superadding acts that would be obviously nuga- tory, and left it in his power either to adhere to and enforce the agreement by action, or to rescind it in consequence of the plaintiff's default. 1 Salk. 112, 171; 2 Sal. 623; Doug. 694; 1 T. R. 638; 4 T. R. 761; 6 East. 555; 1 Moor 498; 1 Saund. 320. The defendant having elected to rescind the bar- gain, and it being proved that the plaintiff also failed to observe- the subsequent invalid verbal agreement, in consequence of which the defendant was, by its terms, entitled to re-enter, I am of opinion, that the steps taken by the latter, whereby without violence he regained quiet possession of his own premises, were justifiable; that the circumstances formed a good defence under the general issue, and that the facts essential to support the line of defence adopted were satisfactorily substantiated. The special pleadings now under consideration not going to the whole cause of action upon the record, it would be necessary to dispose of the demurrer, unless the defendant prevails under the general issue, which I think he ought to do. Were it in my view of the case important to regard the evidence as restricted to the special issues of fact, I should still be in support of the present verdict. Although it was contended at nisi prius that verbal proof could not be given of the abaudonmcut bcfof e breach of an HILARY TERM, 1 WM. IV., 1880. 279 executory contract, required by the Statute of Frauds to be in writing, yet such is not precisely the ques- tion growing out of the testimony received. The issue was whether or not the agreement mentioned m the second replication to the first special plea to the first count, and in the replication to the first plea to the second count had been discharged, waived and at an end, as alleged by defendant, and the pro^ position would more correctly seem to be whether it could be shown, viva voce, that when defendant offered performance of his part of a written contract respecting the sale of lands, containing concurrent or dependent conditions to be mutually observed, he had been relieved by the plaintiff from a full and perfect execution, in consequence of his Iplaintirs) not possessing adequate means to fulfil his part, upon which it was mutually declared and agreed, that the bargain should be rescinded, and whether by these circumstances it was in law revoked and determined accordingly. However, viewing the evidence un - any aspect of which it is legally susceptible, I am of opinion that the parol proof was admissible. Not- withstanding much doubt has existed whether an agreement in writing, conformably with the Statute of Frauds, could be abandoned or cancelled by ver- bal consent or arrangement, I think the weight of authority preponderates against the absolute neces- sity of a written document, to rescind or annul an agreement of the foregoing description. Authorities may be cited on either side of the argument, and some elementary writers speak diffidently on the sub- ject, but the cases in favour of verbal proof outweigh those favouring a more formal course, and amongst other eminent writers, Mr. Roberts, in his treatise '^>m 280 HILARY TSRlf, 1 WM. lY., IStO. on the statute, page 189, says, " it has long be^n con- sidered as settled, that agreements, thoagh they can- not be altered or contradicted, may, nevertheless, be discharged by parol;" 1 Ver. 240; 2 Vez. 379; 9 Vez. junr. 250; and the present Solicitor-General of England,* in his work upon the law of vendors and purchasers, page 110, after noticing all the cases adds, " that it is universally considered that an agree- ment in writing concerning land may be discharged although it cannot be varied by parol." Comyn. on Contracts, 304, 319, and 328, is to the same point. A distinction with respect to the admissibility of verbal as distinguished from written evidence, will be found to exist in equity, at least between cases in which a party seeks to enforce a contract and those in which the call for performance is resisted. In the latter instance verbal testimony is received, when it would not be allowed in the former, and it seems to me, that in an action like the present, when the whole turns upon the contested possession, or right of possession, and in which the agreement of sale is not the foundation of the suit, but incidentally in- volved in the point of controversy, it might be just ijid salutary to adopt the rule obtaining in equity, in favour of ihe defensive side, in preference to that of a more strict and rigid character prevailing, when an agreement is sought to be established and constitutes the gist of tlie action. But I do not deem it necessary to resort to any ameliorated construction of the principles of legal evidence, for I deem the verbal testimony received """"^ *8ir E. Sugdw. HILARY TERM, 1 WM. IV.. ,880. g^l ^^lll^r"^^^ '''' "'^^'-^^^ ^« the issue it ^76 ; 1 Ves. Jr. 404 : E^f ^r f Z ^^' " '>28 ; 9 Mod. 32 : 6 B & r f;q4 * ^11:0 Taunt. 269. ^ " 260. 'm ■A. Leonard v. Merritt. ''l-o't'tlr?::^^^^^^ al the time Of the exe went, though not In h?spr5rencefln«,'"''''7'.'' ?"'' ''*«'• the ojfi '"i m 18s. from 18th J^!'; '/cfo'' wi"^^^^^ ^" of Niagara. '^P^Z^liVt^^A:'" ^' that an abandonment of the whol- ^'^"^ "^' '' » ««««»: "The S/i; oowt will look at the eTlde„«w?hlr^^^^^^ hTJir ^L'4«'"_»p'i'-.» that it"; SdmiSv^ jr^-^'rV '»'' ■' i,i.r^«' -t'f**" wc« aociOed. for th« m^oo.. **"• "" case. p^^^jj^ right to po««.io„, -d' Z dXKiK tt^ ^'£Mi 2o 282 HILARY TERM, 1 WM. IV., 1880. or suit for an escape from the gaol limits by said S. W., then the obligation to be void, &c. Breach that Markwcll left the limits, whereby, &c. Plea without oyer non est factum. There were other pleas, but not material to the question raised. It appeared in evidence at the trial, that the words in the condition of the bond within the parenthesis, were inserted after the execution theroof by defendant, but in pur- suance of his assent, given previous to such execu- tion, and a motion for a nonsuit was made on the ground, that such insertion, although so assented to, vitiated the instrument. It was in evidence that the plaintiff had assented to the blank being filled up with the debt, but the interest or sheriff's fees were not specifically mentioned, nor was defendant pre- sent when the insertions took place, though one of the co-obligors was. A verdict was given for the plaintiff, subject to this point, and in Michaelmas Term last Draper moved to set aside the verdict and enter a nonsuit. The Solicitor-General shewed cause. Chief Justice.— The authorities upon the effect of erasures on deeds are collected in 9 Ea. 351 ; and in 4 T. R. 320. In 3 Esp. N. P. C. 246, a bill of exchange was altered by adding the words " or order,'" with the consent of parties, and held not to be void. In Cro. Eliz. 027, it is stated, that an ad- dition made after sealing and delivery, but by a previous assent, does not vitiate the instrument, and such was the case here. As to the alteration going beyond the assent of the parties, I think it is not said on good ground. The obligor doubtless knew HILARY TEHM. 1 WM. IV., 18*0. 288 he o^ect of the bond, and when he consented to th. filling up the blank with the debt, he must in reason be taken to have assented to th. insertion of he endorsement, as it stood on the ca. sa., and not to have intended that u false description should be given the writ. The debt necessarily drew th costs and sheriff's fees with it. The filling it nn is not immaterial certainly, because it is the only mat^- ter that renders certain the suit in which the sociiritv was meant to bo given, but I agree with the judg;. and jury, for it was left to them, that the assent of the obligor was given to the insertion of those words. If, mdeed, there had been any ground laid for surmising that the assent had been perverted and abused, by applying it to a different suit, the jury would no doubt have come to a different conclusion I think the verdict should stand. Sherwood, J., concurred that the verdict right was Macaulat, J.— My researches have not satisfied me that a material alteration in a bond or other deed, made after execution, though in pursuance of a previous or subsequent assent, would not vitiate the instrument upon a plea of non est factum; and if this case depended upon that point I should not at present be prepared to sustain the verdict But in ray opinion, the matter added to the recital of the condition is not material, and that it struck out the bond would still subsist as effectual to the purposes contemplated by the parties as if the passage rejected had been inserted previous to the sealing and de- livery. Being immaterial, the same, as forming no 1 I r-'x . hi 284 HILARY TERM, 1 WM. IV., 1880. part of the original instrument, may be expunged, without prejudice to the plaintiff's right of action, unless rendered material to be proved though not to have been introduced, from the manner in which it is incorporated with other statements essential to up- hold the declaration. All are familiar with the dis- tinction prevailing between allegations descriptive of written instruments or specialties set out on oyer, (not done here,) and non est factum pleaded-— and those purporting to set forth merely the substance of tht, deed or writing; and I am of opinion, that in the present suit, the objectionable portion of the declara- tion (namely, the alleged endorsement of the ca. sa.) is not pleadecl as descriptive of the bond and condi- tion, but as substantially included in the recital to the latter.— 2 Bl. Rep. 1104; 1 Mar. 214, 311; 2 Doug. 667; 9 Ea. 157; 3 B. & 0. 2; 5 Ea. 440; 3 B. & P. 456; 1 B. & P. 281; 5 Esp. 133. It is not clear from the cases whether the unexceptionable part of the condition substantially establishes the declaration, in the matter of the endorsement, but, in my present opinion, it does not. — 3 Mar. 214; 1 Bing. 6; 2 Camp. 525; 2 Stark. N. P. C. 76. This leads me to another well known difference between an immaterial allegation that mig^t have been omitted, but being stated, imposes the burden of proof, as laid by reason of its connexion with some- thing essential to be retained, and from which (as forming together one substantial averment) it cannot be separated by the court, and an irrelevant allega- tion, which being not only immaterial and unneces- sary, but not connected or incorporated with any thing that is substantial and important, might there- HILARY TERM, 1 WM. IV,, IWO. 286 I 1 fore be struck off, on motion, or be rejected as sur- plusage.—l R. & M. 291. I do not however entertain the opinion, that the endorsement of the ca. sa. as suggested in the decla- ration, can, strictly speaking, be irrelevant, though immaterial; but in this peculiar case, since the redun- dant and objectionable part of the supposed recital was proved to have been added to the bond with the approbation of the defendant, who could not conse- quently have been dece 1 or misled by its inser- tion, and as the same might have been omitted with- out affecting the plaintiJ's right of action, or might have been struck out of the record upon motion of the defendant, or at the instance of the plaintiff, upon an application to amend before trial, I am of opinion, that under such circumstances, it is iq the power and discretion of the court, in furthering the ends of jus- tice, to relieve against its prejudicial operation.— 2 Camp. 306. I deem it competent to them to reject that portion of the declaration which recites the amount of the endorsement, whenever the defendant in virtue of a plea denying the obligation, grounds his objection upon a variance produced by the plain- tiff, inadvertently, perhaps, representing a passage to be contained in the original condition which turns oat to have been supplied after the execution, with the assent of the obligor accompanying the delivery Did the sufficiency of the plaintiff's case depend upon his retaining the clause the court could not aid him and a nonsuit must have followed his failure, to establish that in law material matter introduced into a deed after execution, with the maker's assent, is to be regarded as a portion of the instrument, on a plea ii ../i'! If im 286 HILARY TERM, 1 Wlil. IV., 1880. of non est factum, the rejected portion not being in- dispensable to the validity of the bond, it follows, in my view of the subject, that it may be suppressed, in which event the bond may be sustained under the plea, and the plaintiff be entitled to retain his ver- dict under the evidence. Per Curiam. — Rule nisi discharged. Dickson et al., exors. of Hamilton, v. Markle. Where the plaintiffs declared as executors laying promises to the testator in his lifetime, promises to the plaintiffs as executors after his death, and an account statea with plaintiffs as executors, and proved an acknowledg- ment of the debt to plaintiffs. The court held that it was not necestiary to produce the probate for the purpose of establishing their representative character. Indebitatus assumpsit — promises being laid in the lifetime of testator, and a count inserted upon an ac- count stated with the plaintiff's executors after testa- tor's death. Pleas. — The general issue and Statute of Limita- tions. At the trial at the Gore assizes, before the Chief Justice, a cognovit given by defendant to the plaintiffs and another person, as executors of Hamil- ton, was given in evidence in support of the account stated. No objection was raised that a cognovit was not proper evidence of an account stated, nor that the cognovit pre luced was given to three persons as executors, and not to the two present plaintiffs only. But a nonsuit was moved because the plaintiffs did not produce the probate, and it was urged that the cognovit did not, by admitting an account with plain- tiffs, in that character, dispense with the necessity of formal proof of their representative character. It ^,w HILARV term, 1 WM. IV., 1830. 287 was also proved, that recently before the action the defendant admitted the debt to the clerk of plaintiffs' attorney. The point was reserved, and the jury found for the plaintiffs. A rule tiisi to set aside this verdict and enter a nonsuit was obtained last term by SiUlivan. The Solicitor-General shewed cause. The case stood for judgment, which was this day given. « Chief Justice.— I think there is nothing in the objection taken at the trial, and especially under the evidence given. The plaintiffs have declared in one count, upon an account stated with them as execu- tors, and a promise to pay them as executors. The general issue is pleaded. At the trial it was proved that the defendant has in writing acknowledged to be debtor to the plaintiffs as executors of Hamilton, («. e.) in the very capacity in which they sue, and has also admitted the debt verbally to the clerk of plain- tiffs' attorney. If it would otherwise have been incumbent on the plaintiffs to have proved their representative charac- ter, this admission would, I think, dispense with it, on the authority reported in 10 Ea. 104, and many other cases. Those which relate to actions of slander, when the plaintiff sues in a particular capacity, proceed upon the same principle. But I find nothing to shew that without such an admission the executors need have produced the pro- I' i -i I. MMm 288 HILARY TERM, 1 WM. IV., 1880. bate. No case has been cited to that effect. In an action of trover for a conversion after the death of the testator, the principle which requires such proof is very distinct; the plaintiflF asserts a property, and the plea of "not guilty" goes to the foundation of the title; nothing is admitted by it, and the plaintifi" must prove his special character in order to prove his property. The case 3 Ea. 409, and other cases in which the question has been raised, whether after the Statute of Limitations pleaded, and a promise within six years replied, the action could be sustained on proof of a promise to the executor— the declara- tion charging only a promise to the testator, give every room to bonclude that at the trial no proof of the being executor was tendered or thought neces- sary. It is true, Mr. Chitty, in his notes to his trea- tise on pleading, appears to consider the proof neces- sary, but I do not find his conclusion supported by the authorities he refers to, or by any thing expressed elsewhere, but at all events, I think the admission in this cause included the character in which the plain- tiflfs sue, as well as the existence of the debt; Sherwood, J., concurred. Macaulay, J.— The question is not without nicety, but upon the best consideration in my power I think, that when the party, plaintiff, declares as executor, and in separate counts alleges debts and promises to the testator in his lifetime, debts to the testator and promises to the executor after his death, and an ac- count stated with the plaintiff as executor, with a profit of the letters testamentary, to the whole of which the defendant pleads a single pica of mn as- HUART term, 1 WM. IV„ ISSO. 289 sumpsit, the representative character must be taken to heprima/acie, at least admitted, and consequently that the present verdict should not be disturbed. It 18 unnecessary to enquire whether a different re- sult might have attended distinct pleas, or whether the defendant could have contested the special char- acter as alleged without pleading ne ungues executor. On some occasions a different rule may obtain, as in trover for a conversion in the time ot the executor or in an assumpsit for goods sold by him, or other right of action arising after the death and grant of administration. The cause of action prima facie accruing to the executor in his own right he might sue in his own name, though the claim be susceptible nevertheless of being prosecuted in his represent- ative character, because the amount claimed would when received, form assets. In such instances it might be necessary to prove the special right, unless conceded by the pleadings or involved by express or tacit admission, in the nature of the transaction. Were this a cause partaking of the foregoing descrip- tion, I am of opinion, that by accounting with persons as executors, the special character is (until the con- trary be shewn at least) recognised and acknow- ledged, and that the party so accounting cannot, in general, afterwards impugn their right to sue in such capacity. Had it not been for the recognition of the debt in favour of the present plaintiffs, proved by the clerk of the plaintiffs' attorney, I should have much doubt- ed whether the cognovit affording evidence of an account stated with three individuals could support 2p fV'-'- 1 -.;;» nnMHIHIHB^BBBHi mmHII^^^I i^^^l ' f. flH^I ! ^^^^^^^1 = m fl^^^^^l 290 HILARY TERM, 1 WM. IV., 1880. an action instituted by two only, without accounting for the omission of the third. Generally speaking, the non-joinder of plaintiffs suing in auter droit can only be taken advantage of by plea in abatement, but when they seek to enforce a contract not entered into by the party they represent, but with themselves as his representatives, (an account stated with three or more persons as executors, for instance,) I do not perceive any sound principle upon which they can be regarded in any more favourable light than other suitors with whom a joint contract may have been originally made. When one of several executors prosecutes a debt accruing to the testator, whom the plaintifif repi-esents in conjunction with others, a different rule may well prevail and does subsist. The subsequent acknowledgment however to the agent of the present plaintiffs would seem to obviate the objection, independent of the consideration, that tb's exception was not made a point at the trial. Per Curiam. — Rule nisi discharged. Phillips v. Smith. When jadgment was given for defendant on a demurrer to plaintiff's re- plication after a trial, verdict for plaintiff and contingent damages assessed. The court refused to allow the pluntiff to amend his replica- tion. In this case the plaintiff had gone to trial at the last assizes for the Bathurst District, upou an issue in fact, and had recovered a verdict. He' also as- sessed c^antingent damages upon a demurrer. Judg- ment was given for the defendant upon the demurrer. HILARY TERM, 1 WM. IV., 1830. 291 . which was to the replication, and now plaintiff apphed for leave to amend his replication. The whole court were of opinion that no authority warranted the amendment after a trial of the facts a verdict, and assessment of contingent damages' and Macaulay, J., said that judgment would be en- tered for the defendant on the demurrer without regarding the verdict for the plaintiff, which becomes nugatory ; and he intimated, that when a judgment on demurrer is founded upon the defective manner of pleading, and not the defective matter thereof, such a judgment is not a bar to a future action iii which the matter is correctly pleaded.— 2 Bl Rep 831 ; 1 Mod. 207 ; Burr. 273 ; 2 Lev. 210 ; Burr 321. 754, 1232 ; 1 Saund. 81 n. {a) Per Curiam.~Ru\Q refused. FORaTTH AND RiCHARDSON V. HaLL. ''^roT?nc?af th^lltt^hf "''' °°' 7" "«""«' * plaintiff absent from the N^rM?m • ! ^^l ^''"''' ^'^ """on accrues, till he cornea here No action lies against an heir in this province on the simple contact drti tLtltTv":, Lands and tenements held in fee simprbH debtor at l^K 1 /'a Sd o^'^ ■''^"'«''"^ ''''"'° '" "«"»«»'' and sold under Sislt&"„rd:L^id"&r '""'="' »«-» the executor or Debt against the heir upon the simple contract of the ancestf The plaintiff declares that George Benson Hall, deceased, whose son and heir at law defendant is, and irom whom defendant, before the commencement of this suit, had divers houses, lauds &c., situate in the province of Upper Canada by descent, in his lifetime, to wit, &c., was indebted to 12^D^ r'o «"fiK?" « ?,"L°°'i U.C. Q.B.281; MoLdhTnd t. Ro«„ 1^ U. C. Q. li. 661 ; Mallock t. Scott, 9 Q. B. U. C, 428. sogers 292 HILARY TERM, 1 WM. IV., 1880. plaintlfiFs in the sum of £4500 to be paid upon re quest, for divers goods, wares and merchandizes, whereby an action hath accrued, &c. 2nd count. Quant mer. — For goods, wares and merchandizes. 3rd count. — For money laid out and expended. 4th count. — ^For money lent and advanced. 6th count. — Upon an account stated. Damages £20. First pleaj — That George Benson Hall in his lifetime did not owe. Second plea. — Actio non accrevit infra sex annos. Third. — Actio non, because plaintiflFs heretofore, to wit, &c., impleaded one A. Hall, executrix of the last will and testament of the said George Benson Hall, and recovered against the said executrix £5005 6s. 2d. for the same identical causes of action in the declaration above mentioned, to be levied, &c., which judgment still remains in full force, not in the least reversed, satistied and made void, wherefore, &c. Fourth actio non as to the sum of £2276 5s. 6d., because plaintiflfs, &c. (as in the last plea.) Whereupon plaintiffs for obtaining satisfaction thereof sued out a fi. fa. against the goods and chattels of the said George Benson Hall, in the hands of his executrix, to be administered, by virtue whereof the sheriff levied £103 3s. 6d., and returned that there were no more goods and chattels whereof, &c., whereupon plaintiffs sued and prose- cuted another^, fa. against the lands and tenements of the said George Benson Hall, for £4902 28. 8d., HILARy TERM, 1 WM. IV., 1880. 293 by virtue whereof the sheriff took in execution divers lands and tenements, which were of the said George Benson Hall, at the time of his death, and levied thereout £2173 2s. Et hoc par est vn. Fifth plea.— Ontfmn non, except in the messuage and land in this plea mentioned, because defendant has no lands except one messuage and 492 acres in the township of Maiden, and 800 acres in the town- ship of Colchester, of the value of £2300. Et hoc par. est verificare: wherefore he prays judgment, except to the said messuage and land. Sixth plea.— ^c/w non, as to the sum of £2276 6s. 6d. (as in the fourth plea to the end of the return of the /./a. against lands) and then pleads nothing by descent except the lands and tenements so seized and taken in execution, whereof the said sheriff so levied, &c. Et hoc par. est ver: wherefore he prays judgment, &c., as to the said sum of £2276 5s. 6d. Seventh plea.— Owwan non, except in the sum of £2300, because he haa nothing by descent except one messuage and 492 acres in the township of Mai- den, and 800 acres in the township of Colchester of Ae value of £2300, whereupon he prays judgment «c., as to the said sum of £2300. Replication.— Takes issues on the first plea. To the second piaa.—Precludi non, because plaintiffs when the several causes of action accrued were resi- dent in foreign parts without this province, to wit at Montreal in the province of Lo .yer Canada, and stiU remain and are resident there ; and that the said I . r-' \'^ 294 HILARY TEEM, 1 WM. IV., 1880. plaintiffs have not been within this province at any time since the accruing of the said causes of action Et hoc par. sunt ver. To the third plea.— A general demurrer and joinder. To the fourth plea.~A general demurrer and joinder. To the fifth plea.— Prays judgment of the assets confessed. To the sixth plea.— A general demurrer and joinder. To the seventh plea. — Prays judgment of the as- sets confessed. Rejoinder to the replication to the second plea actio non, because when the said supposed causes of action accrued, the plaintiflFs resided in Montreal, in the province of our Lord the King of Lower Canada, adjoining this province, and not separated therefrom by any sea, and still continue to reside in the said city of Montreal, absque hoc, that plaintiffs were resident in foreign parts, as in the replication al- leged. Et hoc par. est ver. To which the plaintiflf demurred generally and joinder. This cause was argued in Hilary Term last on the demurrer to the pleadings upon the Statute of Limi- tations, by Draper for the plaintiffs, and Baidwifi for the defendant, and afterwards in the same term, on the question of the sale of the lands in the hands of HILARY TERM, 1 WM. IV., 1880. 296 the executrix, by the Attmiey-General for the plain- tiffs, and Baldwin for the defendant. Sherwood, .1., delivered his opinion this day (After stating the pleadings)-Under these pleadings It seems necessary to determine the three following pomts : 1st. Whether the Statute of Limitations in this province runs against plaintiffs residing in Lower Canada, who have never come into this province. 2nd. Whether an ctiou on the simple contract of the ancestor lies against the heir. 3rd. Whether the lands which a testator or intestate held in fee simple at the time of his death, can legally be sold under a .judgment recovered against the executor or adminis- trator. As to the first point. Before the passing of the statute 31 Geo. IIL, c. 31, that part of British North America now called Upper Canada formed a portion of the late provinQ^ of Quebec, and so far as con- cerned matters of controversy relative to property and civil rights, was governed by laws principally of French origin, called the laws of Canada. The act last mentioned divided the province of Quebec into Upper and Lower Canada, and gave each of those colonies a legislature with full power to make laws for the peace, welfare and good government of the mhabitants residing within its limits. The first exer- tion of legislative power in this province wholly abolished the code of French laws, and introduced those of England in their stead, not by enacting such pans of them separately as appeared best adapted to the local circumstances and political state of the pro- vince, from time to time, as occasion required, but ''J I jil ;, 296 HILARY TERM, 1 WM. IV., IMO. by adoptii ' them in a mass, subject to a few excep- tions only. The consequence of this sweeping mea- sure was to range in our statute books many English acts whose phraseology strongly marks their insular extraction, and if construed according to the strict letter would produce effects never contemplated by the adopters. Upon examination it might be found that no Brititsh act which has been made the law of this province, in the very words in which it was found in the English statute book, is more liable to this kind of objection than the one I am about to consider. The stature 21 Jac. 1, c. 16, was passed in Eng- land, as the words of the preamble declare, "for quieting men's estates and avoiding of suits," and is a very important and beneficial law, which the public good imperatively demanded, both in Britain as the act of the British parliament, and in this province as the law of the provincial legislature. In the case in Bl. Eep. 28Q,Wilmot, J., said, " the Statute of Limi- tations ought to be construed liberally; I think it is a noble beneficial act. Interest reipubltcae ut sit finis litiumJ' A part of our Statut*^ of Limitations must receive an equitable construcnt. *• i* can receive no rational construction at all- -it n'omu ^s to sonic im- portant points without such assistance become a nullity. An equitable construction of a statute is thus defined by Lord Coke : " The equity of a statute is a construction made by the judges, that cases out of the letter of a statute, yet being within the same n'jchief or cause of the making of the same, shall be within the same remedy the statute provideth." Co. Lit. 246. This rule is in truth no other than HILAEY TERM. 1 WM. IV., 1880. 297 that which ought always to be applied in every case of a fair and correct exposition of any instrument of a pnbhc nature, which is to pursue its meaning ac •ording to Its true intention and entire text and to give eflFect to every part of it as far as possible. This end could never be accomplished by a strict construction adhering to the very letter of the Statute of Limitations; I shall therefore not attempt it bat will endeavour to be guided by its true meanin.^ which I consider the proper course. By the Statute of Limitations the legislature say " that all actions on the case shall be commenced within SIX years next after the cause of such action or suit, and not after," and in the seventh section declare, that any person entitled to such action who 18 "beyond the seas at tlie time of any such cause of action given or accrued," fallen or come, may bring an action within sir years after he has returned from "beyond the seas," as any other person having no such impediment might do. The first question which naturaUy presents itself upon reading the seventh section, is, what did the legislature of Upper Canada mean by the expression " beyond the seas." The slightest- acquaintance with the geography of the country must convince any one that the legislature which adopted the law well knew that there was no sea in Upper Canada, nor within many hundred miles of its borders, but as they introduced the statute here as part of the law of England, they must have supposed it would have been construed aooordincr to th^ nr''nf"riia" -^ ^! Ji^nglish decisions on the same statute, and I think it 2q I. 298 HILARY TERM, 1 WM. IV., 18«0. will be found, that even in England the act does not always receive a literal construction. The cases which have been decided there on the statute 21 Jac. I., ch. 16, go to prove, that the words "beyond the seas " have two different meanings. 1st. — They mean out of the Kingdom of Great Britain. 2nd.— Out of the bounds of the British seas. An explana- tion of the phrase is given in Co. Lit. 107, 260, A. & B., both in the text and in several notes subjoined. " Beyond the seas," according to those authorites, is the same as to say ''extra regnum,'' and is likewise the same as to say "extra qmtuor maria," but every lawyer knows that the latter expression is vastly more extensive than the former. A place " extra regnum," or out of the Kingdom of G-reat Britain, is ex vi termini, either out of the allegiance of the King, or beyond the four seas which surround Great Britain. It may be out of the realm or kingdom and still be within the four seas and within the alle- giance of the King. The most entended sense of the phrase "beyond the seas," undoubtedly means be- yond the four seas which surround Great Britain, and are often called the British seas. According to Mr. Selden, in his mare clamum, Hb. 2, pp. 24, 31, the British seas to the west extend quite over the Atlantic Ocean, which washes the western coast of Ireland, and consequently Ireland in fact is within the four seas. Ireland, however, before the union, was '* extra regnum,^^ or out of the Kingdom of Great Britain, and on that account has, by legal construction, been determined to be " beyond the seas." Lord Holt held that any place in Ireland was 4(1 J *!.« ^^^f If within thp rnAnninir nf the Statute DUyUUU l^lC ocas, Triliiiti I'i^ .Il~~- 75 -- -— - — of Limitations, as appears in Show. 91. Lord Hdi HIURY TIRM, 1 WM. IV., 1880. 299 ace " extra dwi not advance it as a fact, that Ireland was situate beyond the four seas or out of the allegiance of the King, but he merely said it was " beyond the seas " within the meaning of the Statute of Limitations, or in other words, such a construction of the act was ne- cMsary to carry the intention of the legislature into effect. By a literal construction of our Statute of Limitations, it would clearly run against all persons on the two continents of North and South America out of the limits of Upper Canada, for such persons ar^ not in fact "beyond the seas," and still it is well known that most of them are foreigners and out of the allegiance of the King : such a construction would therefore be in direct opposition to the decision in England. According to the case in Bl. Rep. 723 and 3 Wils. 145, the court say, "If the plaintiff is a foreigner and doth not come to England in fifty years, he still hath six years to bring his action after coming to England." Upon the whole I am of opinion, that the phrase "beyond the seas," which happens to be found in our provincial law, can mean nothing more than the phrase "out of the province of Upper Canada," and that a person who is out of the province when the cause of any action like the present accrues may commence an action within six years after he comes into the province, and if he never comes into the province the statute does not run against him at all. t 'm . ,f' As to the second point, no case is found in the books which throws any light on the subject. One instance, however, is said to have occurred in this province, in which a majority of the judges of this coftrt entertained an opinion consonant with the doc- U--3VX. 300 HILARY TERM, 1 WM. IV., 18M. trine advanced by the counsel for the plaintiffs. Unfortunately for us the lapse of time has borne away all recollection of the remarks made by the judges on that occasion, and there was no reporter then to note the arguments which must necessarily have followed a difference of opinion among the learned brethren. The result is stated, but nothing more, and yet there is one important fact admitted on all hands, which is, that the judges were not unanimous on that occasion. I probably entertain the same general views of the question whicu iie learned judge did who then stood alone ; and after considering the case in all its bearings, I am con- vinced I shall not alter my opinion, unless the King in council determines it to be erroneous, and then it would be my duty to conform to the judgment of a superior court. That such an action as the present does not lie at common law need not, I think, be laboured at this time, because I take it for granted that such a pro- position would receive the immediate assent of« all professional men. If the action, therefore, does lie at all, it can only be sustained by virtue of the statute 5 Geo. II., c. 7, and before I proceed to make any remarks on that statute I will briefly pre- mise, that real estate situate in the plantations seem to have been considered, before the passing of that act, in the nature of personal property, and to be assets in the hands of the executor or administrator f jr the satisfaction of debts.— 2 Yentr. 358 ; 4 Mod. 226 ; 3 Ves. Jr. 118. The knowledge of this fact mav be of some assistance in forming a correct opinion of the real intention of the British legislature HILAKY TERM, 1 WM. IV., 1880. 301 m^passiDg that law, as it is not at all probable they were desirous of making any important change in the long established opinion, that real estates were assets Ike goods and chattels for the payment of debts in the statute 6 Geo. II., that the legislature were sin- cerely anxious to facilitate the collection of debts in the plantations, by giving a more ready and easy remedy to the creditor than was in use before that time, and by establishing one uniform mode of pro- ceeding. Britain, at that period, possessed many extensive and populous colonies on the continent of of North America, as well as in the West Indies and almost every one of them had a separate legis- lature, and consequently possessed its own municipal institutions, at least to a certain extent. In some It is most likely, lands were assets for the satisfaction of debts; m others, most probably they were not; and this diversity in the laws of the colonies must have been productive of vast inconvenience uncer- tainty and delay, to the English creditor. ' When the wealth and power of a nation depend on com- merce It will uniformly be vigilent to discover, and prompt to remove all obstacles to its free course The legislature clearly express their motives in the preamble of the act. The words are the following • '' Whereas His Majesty's subjects trading to the British Plantations in America, lie under great diffi- culties for want of more easy methods of proving recovering and levying of debts due to them than are now used in some of the plantations, and Where- as It will tend very much to the retrieving of the credit formerly given by the trading subjects of (^reat Britain to the natives and inhabitants of the ■i-.MCstg&^^um 302 HILABT TEBM, I WM. lY., 1880. said plantations, and to the advancing of the trade of this kingdom thither, if such inconveniences were remedied." The legislature then proceed to make some important and beneficial alterations, relative to the mode of proving debts sought to be recovered by an action instituted in the colonies, in which a person residing in Great Britain is a party ; then they pass on to the present subject, and by the fourth section of the statute enact, " That from and after the said 29th September, 1732, the houses, lands, negroes and other hereditaments, and real estates, situate, lying or being within any of the said planta- tions belonging to any person indebted, shall be liable to and* chargeable with all just debts, duties and demands of what nature or kind soever, owing by any such persons to His Majesty, or any of his subjects, and shall and may be assets for the satis- faction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other speciality, and shall be subject to the like remedies, proceedings and process, in any court of law or equity in any of the said plantations, respectively, for seizing, ex- tending, selling or disposing of any such houses, lands, negroes and other hereditaments, and real estates, towards the satislaction of such debts, duties and de- mands, and in like manner as personal estates in any of the said plantations are seized, extended, sold or disposed of for the satisfaction of debts." The legis- lature expressly declare that creditors were placed under great diflftculties by the method in use in some of the plantations for the recovery of debts, and ex- press their determination to remove the inconvenien- ces complained of, and it appears quite evident from 'dp HILARY TERM, 1 WM. IV., 1830. 808 tb6 whole teaor of the act, that they were quite anxious to establish some uniform system through the colonies, founded on better principles and calcu- lated to place the colonial trade on a more advan- tageous basis. With this view the parliament then proceed to make real estates in all the colonies liable to the payment of all just debts, whether due by specialty or simple contract, precisely to the same extent, during the life of the debtor, as personal estates are liable for the same purpose, and they dis- tinctly give the like remedy, process and proceed- ings, and in like manner for seizing and selling the one species of property as the other while the debtor lives. Real and personal estates are therefore placed on the same footing for the payment of debts during that period— the statute clearly makes them so, and gives one and the same remedy against both. ' The position to this extent seems indisputable: no doubt is now entertained on this subject, for a superior court has settled the question. After placing real and personal estates in the same condition for the payment of debts, while the debtor lives, what possi- ble inducement could the legislature have to make any diflference after his death ? Would such a step give a more easy method of recovering debts as ex- pressed in the preamble of the act ? What method was in use before the 5 Geo. II., I have not been able to learn, but it appears to me that no method of collectirg debts could be more inconvenient and more liable to objection than the one which compels the creditor to resort to the heir for satisfaction. The heir might be an infant of the most tender ag«: he might be in a foreign country, or he might be un- known for many years to the creditor, and in every > ■s..a'.l '■.ti'\ ^ta^xmiA 304 HILARY TERM, 1 WM. IV., 1880. one of these cases the necessity of a resort to the heir would almost amount to a discharge of the debt. If the heir, however, might conveniently be sued, still he might not have sufficient assets to satisfy the debts, and then the personal property must be rea- lized through the medium of the personal representa- tive, and consequently two actions must be brought instead of one, which would be sufficient, supposing the real estate liable in the same manner as the per- sonal, because both could be sold under the same judgment. The necessity of a double proceeding under any circumstances, for the purpose of selling the real and personal property, would, in my opinion, destroy the pledge given by the legislature in the preamble of their act, and therefore goes a great length to prove the construction incorrect which forms its foundation. The plaintiffs allege that the part of the fourth section of the statute which de- clares that real estates shaU be assets for the satis- faction of debts, means only as they are liable for debts in England, due by specialty, and that the heir must be sued in England before the real estate of the ancestor can be taken in execution. The plaintiffs further insist, that the allusion I have just stated necessarily implies this consequence, that the heir must be sued in the colonies, by virtue of 5 Geo. II., before the real estate of the ancestor can be sold for the satisfaction of his debts. Now, it appears to me, the fallacy of the argument consists in this, that the right of the creditor to satisfaction from the real estate is confounded with the remedy to recover such right. I think this part of the fourth section clearly gives the creditor in the colonies an absolute right to satisfaction of all just debts, from the real estate of HILARY TERM, 1 WM. IV., 1880. ^i 305 the deceased debtor. In my view, this part of the act fixes the liability of a deceased debtor's real estate to the satisfaction of all his just debts, but it was never intended to designate the remedy by which such debts might be recovered; that important pro- rn ri'"f .^? ^^' ^^^^^q^ent part of the act. Ml that the legislature declare in this part of the statute IS, "that real estates in the colonies shall and may be assets for the satisfaction of all just debts, in Ike manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other speciality," which is substantially the same in my opmion, as if they had said, "that real estate in Uie colonies shall constitute a fund to their full value for the payment of all just debts, after the decease m Eng and constitute a fund for the payment of speciality debts due by a deceased debtor in his life time. When any description of property which belonged to a deceased debtor in his life time, is made liable to the satisfaction of his debts, it is styled " assets " m law ; and lands are assets in England, when the owner dies indebted on speciality, by which he has expressly bound his heirs, and therefore the contract made by the owner of lands is the sole cause of the lands becoming assets. This proposition is fullv established by the following passage in 2 Bl Com 244 ; where Finch's Rep. 86, is cited as an authority' If a man covenant for himself and his heirs to keep my house in repair, I can then (and then only) com- pel his heir to perform this covenant, where he has an estate sufficient for this purpose, or assets by 2r ^ 306 HILABY TERM, 1 VM. IV., 1«&9. descent from the covenanter; for though the covenant descends to the heir, whether he inherit any estate or no, it lies dormant, and is not compulsory until he has assets by descent." It appears, therefore, that lands are assets in Eng- land, independently of any pr-^ceedings against the heir, and consequently are assets without such pro- ceeding in this province, because the 5 Geo. 11. expressly makes them assets for the satisfaction of all just debts, in like manner as they are assets in England for the satisfaction of speciality debts. In England the creditor has a right to the annual value of the deceased owner's lands in satisfaction of his debt in certain specified cases only ; but by virtue of the statute he has a legal right in this province to their entire value in payment of ^11 debts which shall appear to be just and legal. When the creditor in England wishes to reduce this right into aclual possession by recovering the amount of his debt from the real estate of the deceased debtor, the law then requires him to institute proceedings, and to obtain judgment against the heir, when the estate has descended to him; but when the lands have been disposed of by will then the proceedings and judg- ment must be against the heir and devisee. The security, therefore, given to the creditor in England, varies according to the existing circumstances of the case ; sometimes the devisee is joined with the heir, at other times the heir is sued alone; and if the British parliament had thought it expedient by 3 Wm. & M., ch. 14, to change the common law remedy altogether, and to direct all proceedings to be had against the personal representative of the HILARY TERM, 1 WM. IV., 1880. 307 debtor instead of the heir and devisee, I think no one would have attempted to prove sneh a law un- constitutional. The power of the legislature to modify the right or remedy as frequently as occasion may require cannot properly be disputed, and the only doubt m any case must be whether they have done 80 or not As the law of England does not authorise an action on simple contract of the ancestor to be brought against the heir, and as it appears to me the statute 5 Geo. 11. makes no alteration in the common law in this particular, either by express words or necessary intendment, I am of opinion; that no action lies against the heir in this province on the simple contract of che ancestor. As to the third point. It is contended by the counsel for the plaintiffs that we have the law of England in this province, and that according to that law the real estate is assets in the hands of the heir for the satisfaction of speciality debts; and the reason 18, that he IS the person most interested, and should never be deprived of his inheritance without an on- portunity of defence. It is also urged, that when debts on simple contract are to be satisfied from the real estate in this province, the proceeding, in prin- ciple, must be analagous to the other, and conse- quently the same necessity of proceeding against the heir here as in England, notwithstanding the differ- ence of the nature of the contract. That true it is the statute 6 Geo. II. subjects lands in the colonies to the satisfaction of simple contract debts after the decease of the debtor, but yet the statute makes them assets m like manner as they are liable in England foi* speciality debts, and therefore the proceedings to 308 HILARY TERM, 1 WM. IV., 1880. make them productive to the creditors must be the same as in England. The answer to these objections is obvious. Lands in this province are not liable to simple contract debts by the laws of England. Their liability to that end is created by a statute forming no part of that code. When by the law of England real estates are assets to satisfy creditors in this province, then the heir is the legal representative of the ancestor, and may be sued if the creditor elects that course. The 5 Geo. II. gives a right to the simple contract credi- tors wholly unknown to the law of England; and the same act gives a remedy to recover that right to which the English law is a stranger; and if we are desirous of obtaining corrcc<; information of the mode of proceeding in such cases, we must resort to the statute. When the statute was passed, a debt on bond, by which the heir was bound, could have been collected in England in two ways — that is to say, either against the personal representative or the heir of the deceased obligor. The law of England there- fore provides two separate funds and two distinct remedies to enforce the payment of such a debt. If one of the funds is insufficient, recourse is had to the other, and often to both, by simultaneous suits, the inconvenience, trouble, and. expense of which were most probably one of the chief inducements of the legislature for establishing a new system in the colo- nies. They distinctly enact that both the real and personal estate of a debtor shall be liable to the pay- ment of all his just debts, and that they may be pro- ceeded against and sold in the most convenient maimer then in use — that is to say, precisely in the HILARY TERM, 1 WM. tV., 1880. 309 ■i rij same manner as personal estates are proceeded a^nst and sold for the satisfaction of debtr S m^e of proceeding by seizing and selling the -oods under a writ of/./., is in my opinion the'mostC and at the same time the most efficacious mode of proceeding against the lauds which conld possibly be devised, and the only one which offers a fair pC peel of recovering colonial debts. The properlyl lands IS acquired with more facility, and therefore o ZZT '^'!.'" '" "■" '="'"■""'- ""^ o""" kind of property ; and most of the inhabitants have a suffi cjeucy to produce satisfaction of their debts, especi- ally when the personal property is called In aki of Ue remedy created by this statute unites all the advantages of the two remedies given by the law of Lngland without the delay and uncertainty which attend the one against the heir. By that mode of proceeding no writ of>./.. can issue agatostthe huids; and those who entertain an opinion tha the heir should be sued in this province, are comp 1 led to admit that without the aid of the statute the lands would not be sold at all: an admission, I think con dusive against their opinion. The statute el'early gives no remedy partaking in part of the nature of the proceedings against the personal representative and m part of proceedings against the heir: but the me, as appears to me, is distinctly drawn, by which ected; for there ,s an express enactment giving the lie remedies, proceedings and process, against he Tl XT; "^ ri "' ""^ g'-^" "gainst tic gl^d and chattels, and therefore a writ of/./a. by virtue ! 1 im 310 HILARY TERM, 1 WM. IV., 1880. of the statute may issue to sell the lands because it may issue to sell the goods. If the creditor proceed to the seizing and selling of the real estate as he does the personal, he finds abundant authority in the statute to support him; but if he pursue the course which the law of England directs against the heir, he finds himself driven to the necessity of placing a forced construction on the statute, which neithei* the words nor the general tenor of the ict can possibly justify. The system he forms is composed of heterogeneous principles which appear irreconcileable, or at any rate extremely diflficult to reconcile. It may not be improper here to give a brief statement of the ordi- nary proceedings according to the law of England, against the executor as well as against the heir, in order the more clearly to show the diff'erence between them, and the probability that the legislature in- tended to adopt the former and reject the latter altogether. When the creditor on bond brings an action, in England, against the personal representa- tive; the declaration must state that the defendant unjustly detains the debt, not that he is indebted to the plaintiff, and final judgment is entered for the debt and costs, to be recovered against the goods and chattels of the deceased debtor. A writ of /. fa. issues on the judgment, on which the goods and chattels are sold for the satisfaction of the debt. When the bond expressly binds the heir the creditor may sue him if he has real assets, or as they are usually styled assets by descent. The declaration must state that he is indebted to the plaintiff and unjustly detains the debt ; and final judgment is HILARY TERM, 1 WM. IV., 1880. 311 usually entered against the heir, to be levied of the lands and tenements descended to him. The writ of extent then issues, under which the yearly value u', w^f .'' *^^'" ^y *^" ^'•^^'tor, and the lands are held till he is satislied the amount of his debt after which the possession of the lands returns to the heir. This is the most beneficial mode of proceed- ing which the law of England gives the creditor against the heir, but the estate in lee simple in the lands is never sold, either on an extent or an elegit against the heir. Now it is quite evident that these two modes of proceeding are unlike each other, and distinguished by a marked difference at every step in each pro- ceeding. The object of each is the obtaining satis- faction of the debt, but that end is reached when the heir is sued by means of a proceeding and process entirely dissimilar in substance and in form from those which must be adopted against the executor or admmistrator, and consequently neither the whole of both, nor a part of one and a part of the other can be adopted consistently with the express words of the statute, which declare that lands shall be liable to the like proceedings and process for seizing selling and disposing of them, and in like manner as personal estates are seized, sold and disposed of for the satisfaction of debts. When two different roads lead to the same point you cannot legally make use of both under a license to proceed on one ; and when a statute enjoins the doing of a certain act, the per- formance of another act different in itself, but pro- ducing somewhat similar effects, cm never be projjerjy deemed a compliance with the law, even if 312 HILARY TERM, 1 WM. IV., 1880. what the act directed to be done should be found on trial to be in some degree more inconvenient than the other. Arguments ah inconvenienti are admissible only when the intention of the legislature is doubtful, but when the words of a statute are explicit and the meaning plain, it is in vain to insist that the act is inconvenient to particular individuals, or class of individuals in society. If the 5 Geo. II. produces inconvenience to the heir, it is at the same time pro- ductive of incalculable benefits to the community at large, and its repeal would be followed by great public detriment, and therefore cannot legally be objected to on this ground. Lex citius tolerare vult privatum damnum quam publicum malum. Co. Lit, 162, b. In 4 M. & S. 261, Lord Ellenborough says, "The court is governed by the principle of law and not by the hardship of any particular case. What can be more hard than the common case in trespass, where a servant has done some act in assertion of his master's right, that he shall be liable not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage, and his person also shall be liable for it, and what is still more, he shall not recover contribution." I am not convinced, however, that the statute 5 Geo. II. can properly be said to occasion any in- convenience to the heir greater than what the law tolerates as respects the other children of the deceased. The heir perfectly well knows that when lands descend to him they come to his possession accompanied by the same liability to the satisfaction of the just debts of his ancestor, which is attached by law to all the personal estates. Now, suppose i-y HOAEr lEIla, 1 JTO. IV., 18J,. 313 the he,r to be the only child, and entitled to all the Z ,! '',"?™*' ""*'"■ '^<' ^PPO'o tie ancestor ha. appointed a stranger his executor, who has the sole possession and management of the persomil property, amounting to twenty times the TZot fte lands, what just cause of complaint canX heir h'.ve against a statute which sanctions the sale of lands to satisfy the debis by the same proceeding and process by which the goods and chattels o a much greater amount are disposed of or at lea<,t hab e for the same purpose ? Ifter the ^y^'e^t debts the he,r will became the owner of both lands and e^ods, and yet he is dissatisfied with the law in regard to the former, and satistied with it as esplc,^ the latter. There can be no danger of fJdrn pracfce between the creditor and executor in the case of lands more than of goods, and if fm„d Z aetuallyoecur, the remedy would be as open and effe- tual m the one instance as the other. I the creditor prosecute the executor when there are no St enforce payment from the goods, the heir isTever allowed to become a parly to the proceeding aU though he may be entitled to a large^urplu ^'.t personal estate. Is not this as hard a case as h! other? And yet this is the law. "'"^'^^^ It may not be found irreleyant here to state, that the 5 Geo. H. was (he law of this conntry for may years before the law of England superseded the laT of Canada, as I have before stated. The W Geo f Ihf-R'-'/r- '";■ "'^P'-'^^'y «'»«'-- " «'s rLt,in!T r ^'""" """^^ '^'"^"''"S or r^?? r° " -Oxonies or- plantatwus in America should be in force in the late province 0^2 314 HILARY TERM, 1 WM. IV., 1880. bee, which then comprised the territory now called Upper Canada ; and the 31 Geo. III., ch. 31, sec. 53, enacts, that all laws and statutes which were in force in the late province of Quebec should be in force in this province till repealed or varied by the legislature. Since the substitution of the English for the Canadian law in this province, the highest court of appeal from the colonies has determined the 5 Geo. II. is in iull force here, and the act must therefore be construed according to the common law rule in such a way as to give full eflfect if possible to the entire provision of the act, and the intention of the law makers. The great object of the statute is to 'facilitate the recovery of just debts, and this object must be kept steadily in view whenever a correct exposition of the law is expected. To attain this end I think the legislature intended the very same proceedings which led to a sale J the goods should simultaneously produce a sale of the lands. This, in my opinion, is the keystone of the fourth section of the statute, which unites and sustains the whole. It is difficult for a professional man to divest himself of the idea that when real estates are assets for the satisfaction of debts, the heir must exclu- sively form the medium through which such estates can ever become available to the creditor ; and yet this general principle is subject to some exceptions even by the law of England. Circumstances have existed in England capable of effectin" a necessary alteration in the nature and quality of certain freehold estates to as great HILARY TERM, 1 WM. IV., 1880. 315 an extent as the measure is carried by the 5 Geo. II. I allude to the estate pur auter vie. That is a freehold estate, and in no respect partaking of the nature of goods and chattels. " It is given or conBrmed by the same feudal rights and solemni- zation— the same investiture or livery of seisin, as estates in fee simple themselves are ;" and so rigid was the common law rule, that until an occupant actually entered after the death of the tenant, the freehold was said to be in abeyance. The definition of this term is cited in Co. Lit. 362 b, and I will cite It for the purpose of shewing how extremely averse the common law was to allow real estates ever to assume the nature or qualities of personal estates. The anxiety to keep the two descriptions of estates distinct, even against the dictates of jus- tice, was carried 8o far almost as to border on the ludicrous. A kind of temporal and neutral estate was created and kept waiting for some transient occupant, rather than allow any circumstances to have the eflfect of assimilating the real to the per- sonal estate. Lord Coke says—" If tenant pur auter vie dieth, the freehold is said to be in abey- ance until the occupant entereth, that is in expec- tation, in remembrance, intendment or consideration of law. In consideratione legis, because it is not in any man living ; and the right that is in abey- ance is said to be in nubibus—m the clouds, and therein had a quality of fame whereof the ' poet speaketh, " Ingrediturque nolo et caput inter nubila conditJ' The British parliament, however, seemed to have entertained a less exalted opinion of the doc- 'V tu HILARY TtVtd, 1 WM. 17., 1880. trine of abeyance, and at once put an end to its existence in the case of estates pur aitter vie, by an entire abolition of general occupancy. The statute 29 Car. II., c. 3, s. 12, and 14 Geo. II., c. 20, s. 9, make freehold estates pur auter vie like goods and chattels in some cases, and give them to the executor or administrator, although by the rule of common law a freehold estate could never vest in the personal representative. The first statute declares that estates pur auter vie shall be deviseable ; but if not devised, and they descend to the heir as special occupant, they shall be real assets, precisely in the same manner as lands in fee simple. The second statute enacts that such freehold estates, when not devised, and when there is no special occupant, shall go, be applied and distributed, in the same manner as personal estates of the testator or intes- tate. These statutes most judiciously make real estates of a certain description, and under certain circumstances, to assume the nature and quality of personal estates ; and can it with truth bo asserted that the 6 Geo. II. does more ? By that statute real estates . in the colonies are made quasi personal estates, for the satisfaction of just debts ; and at this point the innovation on the common law principle completely ends, and never after makes its appear- ance through all the multifarious changes incident to the transmission of real estates by descent, devise, conveyance or marriage. The honest debts of the deceased owner being fully satisfied, the diverging line marked out by the statute for the sole purpose of affording distribution and speedy justice, imme- diately returns to the ancient parallel of the com- mon law, -and uniformly continues in ihe same »'.' HILARY TEEM, 1 WM. IV.. 18S0. 317 direction without further deviation. In my opinion the more any okb reflects on the intrinsic jus- tice and moral obligation of making all kinds of property subject to the satisfaction of all just debts --the more he considers the great advantages of simplifying the proceeding for the recovery of debts m order to avoid a waste of the means~the more he will appreciate the provisions of the 6 Geo. II., and the wisdom and justice of the British parliament in making that law. Upon as full a consideration as I have been able to give the subject, I am of opinion that lands and tenements held in fee simple by a debtor at the (ime of his decease, may be legally taken, sold, and disposed of under a writ of/./a. sued out on a judgment recovered against the executor or admin- istrator of such deceased debtor. Judgment must therefore be entered for the defendant in this case. The Chief Justice and Macaulay, J., having been concerned in this cause when at the bar gave no judgment ; but after Sherwood, J., had decided the Chief Justice said that he felt it right to state that he concurred with his learned brother in the conclusion he had come to as to the intention and effect of the statute 5 Geo. XL, e. 1, in rendering ands liable to executions upon judgments against the executor s or administrators, (a) ^"^^^^^^^^^ 1 ' J , ■ 318 HILART TBRM, 1 WM. IV., 1880. DouGALL V. Maclean. When notice of intention to moTO, on tlie ground of irregnlanty, is re- quired in England to be given two days prior to tlie execution of the writ of enquiry, a similar notice shall be given in this court not later than the first day of assizes at which the damages are asyessed. In this case, which came before the court on a motion to set aside the interlocutory judgment and subsequent proceedings, it was determined, that in all cases when by the English practice two days' notice of intention to move to set aside proceedings prior to the execution of a writ of enquiry was necessary, that the notice here might be given not later than the first day of the assizes, for which any notice of assessment of damages was given, and they directed that such in future should be the practice. The King v. Theale. On the traverse of office, the issue was whether Lane, an alien, was seised on the 1st July, 1812, of the lands in question, the traverser having proved a prim&faeie title. A possession was proved in the aliea about 20 years before the trial. No conveyance was produced, but a memorial of a mortgage for years from Lane to the original grantee of the Crown, under whose heir traverser claimed. Jleld not conclusive evidence of a seisin in fee of Lane ; and the judge at N. P. having left it to the jury to find under the evidence whether the original grantee had conveyed m fee to Lane, and they finding for the traverser, i. «., negatively, the court re- fused a new trial. The defendant had leave by a private act passed in the last session of the provincial legislature (11 Geo. IV., c. 33) to traverse any inquisition or oflfice found, whereby the real estate in lot number eighteen in the tenth concession of the township of Grantham, has been vested in his Majesty as forfeited, as having been the property of one Thomas Lane, who with- drew himself from this province daring the late war; and he pleaded that the land in question was granted to George Turney, the elder, who died seised there- HILARY TERM, 1 WM. IV., 1881. 319 of, whereupon the same descended to George Tur- ney, the younger, who conveyed to the plaintiff, traversing t' at Lane ever was seised in fee of the premises, and on this issue was joined. At tlie trial the grant to George Turney was proved, and that George Turney, the younger, was his heir at law and the conveyance from him to the traverser, dated 6fh January, 1825, was put in evidence. On the part of the Crown witnesses were called to prove that the lot in question had been known as '* Lane's lot » for upwards of twenty years, that one McMar- lane occupied it about twenty-two years ago and made improvements on it, and represented himself at that time as tenant to Lane. That Turney the the elder, in 1810 or 1811, said Lane had paid him for the lot, but there was no proof that any deed had been given. The register of the county then pro- duced a book which he stated he believed to be a book of his registry office— he received it from an attorney in Niagara—it was one of the books which was carried off by the enemy during the late war This book was further proved to be in the hand • writing of John Powell, Esquire, who was formerly register of the county. It contained an entry in Mr. Powell's hand writing purporting to be a memorial of a mortgage from Lane to Turney the elder, to secure payment of a sum of money; it was for a term of years. And the Attorney-General contended this was conclusive evidence, and that Turney, and those who claimed under him, were estopped to deny a fee in Lane having received a mortgage from him. Sferwood, J.— Left it the jury to say whether under all the evidence they believed Turney had h![ ii't . 820 HIIART TERM, 1 WM. IV., 1881. conveyed the land to Lane or not ; and after retiring for a short time they found fc* the traverser. In Michaelmas Term last, the Attorney-General obtained a rule nisi for a new trial, and now Draper shewed cause. The court, however, thought the evidence properly left to the jury, and that there was no reason to dis- turb their verdict, and the Chief Justice intimated, that if il had been necessary to examine into the question, a good deal might be found in the objection raised by Draper, that this was not a case in which the court would exercise its power of granting a new trial. Per Curiam. — New trial refused. Vid. Cowp. 37; Show. 336 ; 1 Lev. 9; 1 Sid. 153 ; Willes 533. The Attorney-General v. Spaffosd. To an information for the condemnation of goods as illegally imported, the defendant pleaded that they were not imported modi el/ormd. Oo the trial of this issue the defendant was not allowed to prove that the poods were landed through stress of weather, and the jury found for the Crown. The court held the evidence should have been received, and granted a -Bew trial. iNFORMATrON for the condemnation of certain goods seized by the collector of the port of Brockville for having been landed without being duly reported. The defendant claimed the goods and pleaded that they were not imported modd et formA, on which issue was joined. At the trial at the last assizes for the Johnstown District j cor, Macaulay. J,, the de- fendant oflfered to prove that he reported in writing BIURT lEMI, 1 WU. IT., ij,,. j„, to the collector of Brockville, that he inteDded im- porting certain goods on the day of the seizure but olerk to bring over from the United States those articles only, and to remove other merchandise from TfT i"- f"."""' "" "■' ^'"'■"•'d States side, in- stead of which, (he clerk brought all over to Canada arriving at 11 o'clock at .light. That the "' being Stormy prevented the clerk unloading on ot er side the articles ho was to have left there and t f, r/? bring them to this side. That the clerk landed the goods that night before the claimant accessary. That as soon as the claiman t was apprised of It he reproved his clerk for bringing them oT, and told the clerk they had not been reported Thli I e clerk said they might be taken back, which claimant refused, and directed them to be left 11 morning, when he would see the collector on the before he had time to report them. Maoaplat, J.-Thonght that the above facts if pmved, would not sustain the issue to be tried , J the goods being imported and landed before entry he facts alleged in the information as constituting a legal cause of seizure, and forfeiture, were admittfd A verdict was rendered for the Crown, and leave given to the claimant to move for a new trial on tte ground of the rejection of the evidence offered Last term Draper moved for a rule nisi to set jBide^this verdict and grant a new trial on the point 2t 322 HILARY TERM, 1 WM. IV., 1881. And this (iay the Attorney-Gtneral shewed cause. The court thought the fact of au absolute necessity (tlirough stress of weather) for landing the goods contrary to the will of the party, would constitute a good defence ; and that as the question involved a contemplated breach of the law, no special plea was necessary in this case. It would be unreasonable to say a party must look on and see his goods de- stroyed for want of a report which he had no opportunity of making The following cases were mentioned; 2 Wils. 2o7 ; 1 B. & P. 267 ; Cro. Eliz. 533 ; Repves on Shipping, 196, et seq. Per Curiam.— -B,u\e absolute for new trial. Jones, qui tarn, v. Chace. On debt g. t. on the imperial statute 6 Geo. iV., c. 114, which gives the penalty i to the King, J to the Lt. Oovernoi-, and J to the person suing, the court refused to arrest the judgment, on the ground tho', the plain- tiff claimed the penalty for himself and the King only, not naming the Lt. Governor. An action of debt will lie on that statute to recover the penalty. Debt qui tarn by the Collector of the Port of Brockville, for a breach of the statute 6 Geo. lY., c, 114. • The plaintiff sued as well for our sovereign lord the King as for himself, for £600. For that whereas on, &c., at, &c., certain persons unknown were employed with a horse and cart removing goods illegally imported ; and while so employed, two persons, deputies of plaintiff, seized the same. and that defendant, contrary to the statute, opposed and molested the said deputies, and rescued the said goods, whereby, and by force, &c., an action hath accrued to plaintiff, as collector as aforesaid. HILIRV TERM, 1 WM. IT, 1831. 323 7 ; Cro. Eliz. demand ol defendant ^•iOO, parcel, &c.; seeond 11 V"™.' ''^'' "" *''"»• ™'->-i''S 't^ =ta.e. Tm I'T^-^'^ defendant ((hough often re- quested) hath not paid to our sovereign lord the King and plaintiff, as collector as aforesaid, Z sues as aforesaid, or either of them, the said sum of f 600, or any part thereof, but to pay the same or any part thereof, to them or either of them haft aherto refused, and therefore, as well forTur sad ord the King as for himself, plaintiff, as collector as aforesaid, brings his suit. Pi3a.--That defendant does not owe to our said lord the King and plaintiff, who sues as aforesaid, or either of them, the said sum of £600, or any part thereof, m manner and form, &c., concluding lo the country, whereon ipue was joined. There wa!s a ver- d.c for the plaintiff, and in Michaelmas Term lasl M moved in arrest of judgment, on two grounds 1st. That an action will not lie by the plaintiff (not IV ^''*{ ^'^'^'^^ "P°" *^'^ ^'^*"^«' »>"t that the C ( ''i ^Vf'"'''^ '"'^ ^y information. 2nd. That he plaintiff prays the penally for the King and h:raself, contrary to the provisions of the statute which gives one-third to the collector for the Kind's use, one-third to the Governor of the colony, and the other one-third to the person who shall inform and sue for the same. This term the Solicitor-Generai shewed cause and Draper replied. ' Chief JusTicE.=The penalty for which this action sbrought is imposed by the imperial statute 6 Geo Av., c. 114, sec. 62, which says, that "the person 324 HILARY TERM, 1 WM. IV., 1831. committing such offence shall forfeit the sttm of £100." The 57th section enacts, that all penalties and forfeiture shall and may be prosecuted, sued for and recovered, in any Court of Record having juris- diction in the colony where the cause of prosecution arises. The 59 th section enacts, that no suit shall be commenced for the recovery of any penalty under the statute, except in the name of some superior offi- cer of the customs or navy, or other person employed, (to seize and secure, &c.,) or of his Majesty's advo- cate or Attorney-General for the place where such suit shall be commenced. The 68th section enacts, that all penalties and for- feitures recovered under that statute shall be divided as follows: After deducting the charges of prosecution, one- third part of the net produce shall be paid into ihe hands of the collector of customs, at the port or place where such penaltie? or forfeitures shall be recovered, for the use ot his Majesty; one-third part to the Gov- ernor or Commander-in-Chief of the colony or planta- tion; and the other third part to the person who shall seize, inform and sue for the same. The 69th section enacts, that all actions or suits for the recovery of any of the penalties or forfeitures imposed by this act, may be commenced or prose- cuted at any time within three years after (he offeuee committed, by reason whereof such penalty or for- fpi^nre K-hall be incurred. The action is brought by , the plaintiff, "who sues as well for our said lord the King as for himself in this behalf," and the record HILARY TERM, 1 WM. lY., 1881. 32^ after the statement of the offence concludes thus, ••whereby an action hath accrued to the said William Jones, who sues as aforesaid, to demand and have of our said lord the King and for himself the sum of £200, &c." It is objected in arrest of judgment, Ist.—Thatan action will not lie by the plaintiff (not being a party grieved) upon this statute, but that the penalty can be recovered by information only. 2nd. That the plaintiff prays the penalty for the King and himself, contrary to the provision of the statute. Upon the first objection. This action cannot be said to be brought by a common informer, but by an officer who is exprrssly authorised by the act ; and further, the is action, sue for, recover," in the 69th, 68tl' f nd 69th sections, if they were extended by the statute to common informers, which they are not, would undoubtedly enable such common infor- mers fo bring debt, though they might not authorise him to proceed by information. They clearly, how- ever, enable the present plaintiff to bring debt Com. Dig. Debt K and 5 East. 313, shew this clearly. Upon the second objection there may be more room for doubt. In support of it the authority most relied upon is in Hobart 245. The case is not re- ported as having been decided, but Lord Hobart intimates bis opinion, and probably there have been few judges whose individual opinions would have more weight. That was an information for penalties under a statate which gives £6 for each offence, and ■Ul, 326 HILARY TERM, 1 WM. IV., 1831. divides the penalty into three parts, one for the king, one to the poor of the parish, and one to the informer. The informer claimed the moiety for him- self. Lord Hohart thought the information bad, and says, that in an information, as in an action, the party suing should demand his due, which it is his office to demand certain, and not the court to decide; therefore, if he makes no demand, or demand what appears not to be his due, his information is in- sufficient. A case more directly in point is in 2 Keb. 820 ; in debt qui turn, on stat. Eliz. ch. 2. It demanded for the king and for the "informer, and said nothing of the third part, that is to the poor, sed non alloca- tur, for being debt the poor cannot sue, but their part shall be severed in the judgment. Contra in an information which may be pro dornino rege pro seipso et pauperihus sed adjornaiur." Upon looking to th3 1 Eliz., ch. 2, the act for the uniformity of the Common Prayer, I find there is no provision in it upon which such an action could have been brought. However this may be accounied for, Keble is not an authority to be so safely relied upon as Lord Hobari, and especially when he does not report a final decision. If, therefore, the cases were contradictory, as at first they appear, it would be difficult to decide against that in Hub. but that case is clearly not the present case. Here the plain- tiff claims the whole penalty — he is entitled to re- cover it— he says an action hath accrued to him to demand the penalty, the £200 for the King and him- self, but he does not pray a moiety as in Hob. He i-e' HILARY TERM, 1 WM. IV„ 1881. 327 prays judgment for the whole, but suggests that it is for himself and for the King, which the statute over- rules. The plaintifiF may rightly have his judgment for the whole penalty, and the part of the Governor may, as is said in Dickenson and Clare, be severed in the judgment. Several cases support this opinion, —1 Jones, J 56; Cro. Car. 330; Burr. 2021; Parker' 105; 1 Andrews, 139; 2 Mod. 100; Hardw. ISs' Hawk. P. C. b. 2, ch. 26, sec. 17, 20, 76. Although I do not think that all the cases on this point are strictly reconcileable, I consider that the weight of authority as well as the reason of the thing, requires that the rule to arrest the judgment should be discharged, though certainly my first im- pression was contrary. Sherwood, J., and Macaulay, J., concurred. Per Curiam.— Rule discharged. Ferrie v. Tannahtll. When defendant had an attorney upon whom several services of papers were made, tlio court set aside the assessment of damages because the notice was given to defendant and not to his attorney. The court set aside the assessment of damages in this cause, under the following circumstances. The defendant had been arrested, and employed an attor- ney to put in bail, on whom the declaration, demand of plea, &c., were served; judgment by default was signed for want of a plea, and notice of assessment given to the defendant himself, but none to his attor- ney, which the court held to be irregular, and held 8^ HUiARV TEEM, 1 WM. IV., 1991. that no notice of intention to move to set a^ide the assessment was necessary. Solicitor-General for plaintiflF, Draper for defendant. Tid. 2, Y. & J. 276, in point. Fish v. Dotlb. An indenture of apprenticeship, though contrary to the prorisioai of $th Eliz., c. 4, is not void, but voidable only. Semble, that the 6 £liz. is not in force in this province. Covenant on articles of apprenticeship against the defendant as surety. Breach. — That the apprentice did unlawfully absent himself. Pleas. — Non est fac- tum. And 2dly. — ^That the apprentice was an infant, and that the articles were made for a less term than seven years, to wit, for the space of three years, con« trary to the form of the statute, and that the appren- tice did of his own free will absent himself from the said service, by reason whereof the said articles were void. Demurrer and joinder in demurrer. Sullivan, in support of the demurrer, argued that the circumstances of this country at the time the English law was introduced, shew that it is impossi- ble that the legislature could have meant to introduce and give force to the statute 5 Eliz., ch. 4. Draper, contra, said the question was whether the statute 5 Eliz. was in force here. If it was he then relied on the cases 1 Anstr. 256, and 6 Esp. 8. Chief Justice. — I am of opinion that judgment should be given for the plaintiff on this demurrer. Setting aside the question whether the 5 Eliz., ch. 4, HttABT THIM, 1 WM. IT., ij,,. jjg is in force in this country, the olaintiff is, I think entmed to prevail, although there are in some Le^ srong ,„t,mations of a contrary opinion upon one of the objections. The deed of an infant 1^,^ votdable on account of his infancy, is to be a Sd t'hi^b:!^™^""'''^^^' "''"'• '--^"-"^ Thus far I consider the case clear. Then so far as rerrds the deed being void nndcr the stotme o ' ■'f"' »"««'>'"" of the apprenticeship being for . (erm than seven years, it is decided, as I con- ce.ve by the weight of anihorilies (and the ease, npon he question are numerous) that the deed is not vo,d, bnt voidable: that the infant may not avoid i by a mere .nfraction of the articles duri^. h. pmod service, and if so, it would follow tirat the person who covenants for the infant could not d s- haije himself from his covenant by pleading Z .he deed ,s absolutely void. This stat ,e htLver teen a favourite in English courts, and as Lo," *-.»,<,„ has remarked, in one of the cases, the iud°^ oou after ,ts passing ■■construed it away." Km- fess however natural might be the desL to lean ^amst the provisions of such a statute, I shouTd f "el C. 0, than to reconcile myself to the reasoning of the many cases which have established the d'octrL above mentioned. ""tinue If it were necessary, however, to decide on those cases alone, they have, I think, settled the question K'- )■ •ii^siii Mim 380 HILARY TEEM, 1 WM. IV., 1831. that the defence as pleaded here would not have availed in England while the statute of Elizabeth was in full force ; 5 T. R. 716 ; 3 B. & A. 59. The provisions of the statute which are relied on in the plea are no longer part ot the law of England ; they have been repealed as impolitic, even in the condition of that populous country, (54 Geo. III., ch. 96.) In my opinion those provisions were never part of the law of this province ; I have no objection to express that opinion, although it is not necessary for the decision of this question. Sherwood, J., concurred. Macaulay, J.— It is unimportant to the demurrer whether the 5 Eliz., ch. 4, is in force or not. If it is in force, then the articles do not come within it ; arc not sustained by it, and may therefore be treated as i^ there were no act : not being void, but voidable only under the statute, and equally so at common law, 2 Str. 1066 ; Hardw. 323 ; Burr. sett, cases 91; Biirr. 6. Articles in England not sustained by the statute, are to be regarded not as void but as at common law, and the consequence of a case not being within the act is that the common law rights of the ittfant subsist uninfluenced by legislative provision. ATI thfi authorities therefore upon cases held not within the 5 Eliz. apply and should govern this case. 2 H. Bl. 511 ; 6 T. R. 556 ; Burr. 1801 ; 2 T. R. | ^ l60. The cases are not uniform, but tend to estab- lish that articles of apprenticeship are voidable by the infafit, but not void. Other authorities shew that ih tiuch cases the covenants of third persons to HltART MBM, 1 WM. IV., 1981. 8S1 ensure performance are not void tat broken by an mtot avcdanee by the infant, however in Us dta! cretion ,f «,„,rary to the terms of such wvenan, 1. a. 760 ; 4 T. R. 769 ; 8 Ea 26 • Q Fn oan o M. & S. 190 ; 7 T. R. isi ; 4 Taun /s^e 7 ll'c 568 J 8 Mod. 190 ; Doug. 518. '' ^^'^^ ' ^ «• « C. i'^r CMhaw.— Judgment for plaintiff. R^x. V. Sheriff op Niagara f J.„™» "f ^"f ^"^ "'"*'''*<' '■" » «>">»' term for an attachment aRainst the sheriff for not ob^e able before Mr. Justice Macautay, at Chamber, ta vacation, who, on hearing the parties, gj,,^ ™le for the attachment. The SwicL-W moved to set aside the attachment for seveTIf leged irregnlarities, and the case was argued at gr^J length by h.m for the sheriff, and lap^^^ when a question arose as to the regularity of ^ % the attachment by a judge, It cffi^t vacation ; and on this ground the court, afJer ZZ tnne_to consider, set it aside without ci^sts. (a) ^ (a) By Gommon Law Procedure Consol St t IT r — Too ~-~ 332 HILARY TERM, 1 WM. IV., 1881. KiLBOBN V. Forester. A. hating a claim on the goternment for certain wild lands, gave a bond to B. to procure the patent for the same in B's. name, on condition that B. should pay him a certain ilipulated sum, on a fixed day. He did so obtain jlhe patent, and informing B. of it, requested payment. B. without refusing, put it off, and afterwards an action of assumpsit was instituted to recover this money, in which the plaint' T declared, among other things, for the value of lands sold and for services rendered in procuring letters patent to B. grauting him certain lands in fee simple. Ueld that A. could recover. Assumpsit. — The declaration contained several counts; one for the value of lands sold by the plain- tiff to the deiendant; another for services rendered by the plaintiff to the defendant in procuring letters patent from the Crown, granting him certain lands in fee sirapje. At the trial the following facts ap- peared in evi lenco : K'lborn, who seems to have had a claim upon government for a lot of land which had not yet passed into a patent, t'tipulated with Forester to assign the lands to him, ind executed a bond, dated ilth August, 1827, binding himself to procure the King's letters patent for the lands in question, to be issued in the name of Forester, and to deliver him the patent on or before the 1st day of Augnst, 1829, provided Forester should have well and truly paid him £101 4s. 7d. on or before that day. This bond he delivered to Forester, who pro- duced it at the trial upon a notice given for that purpose. Kilborn further proved, that within the period he did procure the letters patent in the name of Forester for the lands mentioned, and gave For- ester notice of it and offered to give him the patents; Forester, however, told him he might keep them till he should see him again. To this evidence the defen- dant's counsel took these exceptions — that the bond produced contained nothing binding on him, and does not bear bis signature — that no other writing HILARY TERM, 1 WM. IV., 188). 383 \"as produced, and that he cannot be charged "upon any contract or sale of lands, or anv interest in or concerning them, nor upon any agreement not to be performed within a year from the making thereof" unless upon proof of an agreement in writing or a memorandum or note thereof signed by him as the party to be charged, or by some person thereunto lawfully authorised by him-that the action cannot therefore be sustained. In Michaelmas Term la.st the case was argued on these points, the verdict having been given for the plamtiff, subject to the opinion of the court upon them.. ^ Judgment was not given till this term. Chief Justice.— This case is one arising out of a description of dealing very common in this province where, from the low price of real estate, the frequent transfers that are in consequence made and the bar- gains to which that kind of traffic gives rise, are not accompanied with the same cautious circumspection that attends such transactions in older countries. No ground appears in evidence on the part of Forester for repudiating this contract— no failure is imputed to Kilborn— it is not pretended that Forester has not the full beneat for which he stipulated, and no reason is assigned (besides the legal exceptions upon which the case turns) why he should not pay Kilborn the sum agreed upon, or at least the fair value of the lands. Forester, it is plain, under the letters patent which were produced at the trial, holds a title by matter of record to the land mentioned in the bond. 834 HILARY TERM, 1 "WM. IV., 1881. The patent has the legal effect of giving him an abso- lute title in possession. No impediment to the enjoy- ment of the real estate is suggested, nor any fraud OP unfairness on the part of Kilboia. Although the points raised are very important in their bearings upon a multitude of transactions in the country, this case is not one of very particular mo- ment in itself: the object in litigation is not large; for all that appears, Forester has received an estate for which he ought to pay, and the justice of the case as it stands before us is plain, and is evidently with the plaintiflf ; 1 ut the remedy is sought in a court of law, and it is objected that in consequence of the Statute of Frauds certain legal evidence is necessary, without which the remedy cannot be obtained here, whatever may be the real merits of the case. If we find this to be so the objections must prevail haw- ever hard may be the consequences, for we must en- force the statute with the same regard to its letter on the one side, and the same attention to its spirit on the other, as have governed the decisions of courts of law in England. If the facts which appeared on the trial were not made out by that description of evidence which the law requires in order to support a case upon such a claim, then we must discharge our minds of the facts as entirely as if they never existed, and if the plain- tiff for this reason is defeated of his remedy in this court, and having no other jurisdiction to apply to, shall remain without redress, the fault is in himself, in neglecting to take proper precaution in this busi- ness, though he may be regarded as unfortunate in '?i'^! ( HILARY TEEM, 1 WM. IV., 1881. 335 there being no Court of Equity here which can afford redress. I make this observation because I disclaim the idea of venturing upon any consideration to deny to the Statute of Frauds whatever effect would in ray opinion, be given to it by the courts of common law m England. We are clearly to construe that act as strictly as it is there construed in courts of law— to carry its provisions into effect in this coun- try with more rigorous exactness, would in my opinion, be exceedingly injudicious and unjust as well as illegal. To determine this ca^e satisfactorily it is necessary first to consider, whether, if Forester had so recog- uised the bond by his signature as to comply with the Statute of Frauds, there is such an agreement expressed or implied in it as can support this action It IS true there are not in the bond any words ex- pressly obligatory upon Forester, for the bond was meant to be, and is the bond of Kilborn, and of him alone; the language consequently is such, that if Forester had sealed it no declaration could be framed on it charging him in debt on bond. To show a right to the penalty of an obligation the party must bring his case within the letter of the condition, with strict legal precision ; but without reference at present to the question of signing, cove- nant will lie upon specialties, and assumpsit upon written agreements, whenever the fair understandini? of what IS written will raise or imply an undertakiiiff I take the fair and reasonable interpretation of the traasaction disclosed in the bond to be this, thatKil- born bound himself to procure for Forester the pa- i' ' 886 HILARY TERM, 1 WM. IV., 1881. tents, on or before the 1st August, 1829 — that he had until that time to obtain them — that it was not to remain optional with Forester v/hether he would accept them or not, but that the payment of the money wa an act as much incumbent upon him as the procuring the patents was upon the other. In other words, I think that Kilborn was not bound to wait till Fore.'iter paid the money, from any uncer- tainty, whether the contract was mutually binding or not, but that he might procee'' to enable himself to fulfil his part of the bargain, and that when he had done so he had an absolute righi to enfore from For- ester the payment of the price agreed upon, though he could not oring his action to compel him until the 1st of August had arrived, that being the day men- tioned for the convenience of both parties. I think this point clear upon the authorities respecting con- ditions concurrent or precedent, many of which were considered and cited in this court in the case of Baker and Booth. If this case comes within the Statute of Frauds, and if upon adjudged cases the signature of Forester can be considered as supplied under the circumstances, then I think the nature of the contract raised by the bond given by the one and received by the other, is such as I have stated. If the Statute of Frauds should be thought not to apply under the circumstances of this case, then no agree- ment or memorandum, or note of any agreement in writing would be necessary, and it would remain for us to consider, whether upon all the evidence an im- plied assumpsit would not be raised against Forester, to pay for the estate he had received the sum men- tioned in the bond, or its fair value, to be allowed by the jury. I think an assumpsit would be raised. '^ ii HILARY TERM, 1 WM. IV., 1881. 387 Now with respect to the Statute of Frauds This case does not turn upon a part performance merely which might have the effect of placing the plaintiff m such a situation that he could not be restored to his original rights, while at the same time it left an agreement still open and incomplete on both sides to which a recourse might be necessary in order to give either party the full benefit for which he stipu- lated. If the case were so situated, it might then be necessary to determine whether a court of law con- sider part performance as taking a case out of the statute^ Upon that point, the case in Brown's Ch n^' i V f^ ^^^^ '*'^°g ^^"«"age used by Lord Mm^fie^m the case of Simon and Moltivos, and by Mr. J. Buller, in Brodie and St. Paul, 1 Vesey Junr might be found to be contradicted by such a'weight of authority as to make it unsafe to adhere to the doctrine they lay down, in its fullest extent. I do not, however, express any such opinion at present for it is not necessary, and I should reluctantly bring myself to that conviction. In this case, how- ever, the plaintiff has done all he engaged to do- on his side the contract is executed. The defendant holds the laud, and why is he not to pay for it? The statute was made to prevent fraud. I do not conceive the legislature can be supposed to have in- tended that in consequence of its provisions one man onght to receive an esiate from another and hold and enjoy it for nothing, and tell him it is true you have bound yourself to procure me a title to an estate, for £100, ani that I accepted your bond, and that you have fulfilled it and given me the estate nevertheless, as you trusted to my honesty and took no undertakmg in writing from me to pay for it, I ^ X !«" 838 HILARY TERM, 1 WM. IV., 1881. will keep the estate for nothing— I will not only not pay you the particular sum you demand, because you can shew no agreement in writing for that particular sum, but further, T will not pay you any thing be- cause you can shew no agreement signed by me binding me to do so. I do not so construe the Statute of Frauds. I admit that whenever either party can have no cause of action except upon an agreement, then he cannot prove his agi ement otherwise than the statute requires ; but I conceive the circumstance may be such as to imply an assumpsit, without the necessity of any special agreement, and that in such a case the statute will not preclude a plaintiff from recovering the value of the estate he has transferred. Suppose by deed poll to which he only is a party, A. conveys an estate to B., and mentions in his deed that it is in consideration of £50 paid, and of £100 to be paid by B., in a year from the date, could it be contended that B. could take thisconveyance and enjoy the estate, and that upon being sued for the £100, he could produce this deed at the trial, as the bond was produced here, and yet say you can show no agree- ment signed by me the party to be charged. The Statute of Frauds protects me in this case in which there could be no fraud. I will hold the land and you shall loose your money. To say nothing of any distinction between contracts executory and not executory, there have been many cases in which courts of law have departed from the strict letter of the Statute of Frauds, grounding that departure upon the principle that the danger of fraud in those cases did not exist. Again it is said, ssales under the direction of a master in Chancery are not within the statute, be- HILARY TERM, 1 WM. IV., 1831. 389 cause there can be no danger of fraud in a transaction under the sanction of the court. Where then is the danger of fraud in the present case? Kilburn has given Forester his bond to bind himself to his part of the agreement : under it Forester has received the estate. There can be no doubt as to the terms, so far as the bond exa-^^^s them, nor any danger of raud as to the t^rms o. ,hat bond, because the de- fendant has sane io/^d its vuthenticity by accepting 1^ and by holding .^ ., oonpulsory upon the opposite party. The only p. .ibiiity of fraud in such a case that I can see, is the possibility of Forester's defraud- ing Kilborn of the purchase money. He seems to thmk he can do it under cover of a statute made to prevent frauds; but he should remember that the statute (as great judges have said) is to be used not as a sword but as a shield, and that, as was observed bv the court in 3 Burr. 1919, the statute being passed to prevent fraud, it shall never "be so turned con- strued or used, as to protect or be a means of fraud." If the estate had not been conveyed by the one and received by the other, and if the parties were iitigating upon an alleged agreement, either of them charging the other for not conveying, or for not ac- cepting and paying for it, then it is clear the Statute of Frauds would preclude any recovery upon such an agreement, unless it were in writing and signed • but here the act is done ; the question is not as to the agreement about it, but the legal consequences ot It, and the obligations arising from it. I do not however state it to be my opinion, that an agreement 18 not in this case supplied by the evidence, suppos- ing an agreement necessary. m* i • I 340 HILARY TERM, 1 WM. IV., 1881. Because the title procured, which in its nature conifers a title in possession, the bond is evidence of the terms on which it was procured. It is true it is not signed by the party charged, but I have a strong conviction, that his acceptance of the bond, and re- ceiving under it the full benefit he stipulated for, ought to be taken as equivalent to his recognising it by his signature. Many cases might be quoted in which this principle is advanced, though not with particular reference to the Statute of Frauds. With reference to that statute, and upon this particular point, I will advert to what is said by the court in a case reported in LoflFt. 332. The case is obscurely reported, but the sentiments of the judges are clearly given upon that question, and they confirm the position I have stated. See also 4 Moore, 642 ; 6 More, 119. I have not yet felt it necessary to consider the objections on the two points of the 5th sec. of the statute separately, because the same reasoning applies to both; nop have I lost sight of the arguments, that the declaration might be sustained by considering the procuring the patent as a service rendered, if a remedy could not be obtained by suing, as upon a sale of land. If the plaintiff were driven to main- tain this construction, and if it were not open to the same exceptions on the statute, I should feel every inclination to support the verdict in that way, but I consider it legal on the other and more obvious view of the transacticoi. The examination of the various decisions on the Statute of Frauds has led me to deduce from them HILARY TERM, 1 WM. IV., 1831, 341 Je principle I have stated. I have not been free from doubt, and am not now, but my opinion is, that the verdict is supported by the evidence, and as was well expressed by Mr. J. Bulkr, 1 Ves. Junr 421 " I will only say, that if I err I will take care, as for as is in my power, to err on that side on which ius- tice lies." I must also add, that if under such cir- cumstances as these, the statute were to preclude a recovery in a court of law, any country which like this has not a Com t of Equity, would, in my opinion be much better without a Statute of Frauds for I think it was truly said by Mr. Justice Wilm!ot (Bl Rep. 601,) sitting in a court of law, "had the Stktute' of Frauds been always carried into execution accord- ing to the letter, it would have done ten times more mischief than it has done good, by protecting rather than by preventing frauds." I am of opinion that ihepostea should be delivered ta the plaintiff. . Sherwood, J.— I think judgment in this case should be entered for the plaintiff. In my opinion the intention of the legislature in making the Statute of Frauds was to prevent those fraudulent practices which are usually attempted to be supported by per- jury, and in order to prevent them the statute requires, that the terms of contract shall be reduced into writing, or that some other requisite should be adopted to prove, beyond a doubt, that the contract was completed: I think it was the object of the statute to prevent a recourse to verbal testimony to prove the terms of the contract upon which the plain- tiff seeks to recover against the defendant. This 342 HILARY TERM, 1 WM. IV., 1881. objection must always hold good so long as the con- tract remains open and executory, but when the requisites of the contract have been complied with by both parties in all essential points, it is then exe- cuted, and I think no longer liable to the objection before mentioned. The case is then out of the statute, there is no danger of mistaking the terms of a con- tract, because the parties themselves, by their own acts, have recognised the contract and ascertained the terms.— Gow. N. P. C. 109. In the present case I think the contract was exe- cuted. The plaintiff procured a government deed for the defendant of the land, and the defendant ap- proved of it, and said he would take the deed. The defendant was therefore the owner of the land and in legal possession of it by virtue of the King's deed. The amount of the price of the land is fully proved by the bond given by the plaintiff to the defendant, and therefore the jury had suflacient to enable them to ascertain the measure of damages. Macaulat, J.— It would seem the iph intiff accepted of the defendant a bond, dated lltL August, 1827, conditioned, that if plaintiff should procure from the government of the province a patent, to be made out and issued for certain specified lands, on or before the 1st August, 1829, providing defendant should have paid him £101 4s. 7d. on or before the same day, then the obligation should be void. That in pursuance of such bond the plaintiff, did procure pa- tents for the lands in question, to be issued in the name of defendant, such patents bearing date up- wards of a year subsequently to the date of the obli- HILARY TERM, 1 WM. IV., 1881. ill 'I 343 gation, namely, the 11th October, 1828, and that by reason of the non-payment of the sum mentioned in the condition this action is instituted. The declara- tion is for a messuage and tenements bargained and sold, work and labour generally, the money counts and an account stated. ' Without delaying the case till next term, which I am unwilling to do, my learned brethren being in favour of the verdict, I could not go at any length into the case, or examine in detail the arguments and considerations which suggest themselves. As at pre sent advised, the matter appears (o me to lie within a narrow compass. The evidence, I think, imports a contract or sale of lands, or an interest concerning them, or an agreement not to be performed within a yeai- from the making thereof, in either of which events itis required bytlie Statute ofFrauds that such agreement, or some memorandum or note thereof should be in writing, and signed by the party to be charged therewith, &c. At the trial, the plaintiff failed to Shew any agreement, memorandum or note in writing, signed by the defendant, and consequently' however in other respects the facts disclosed might be deemed sufficient to sustain an action, or however a Court of Equity might effectually interpose, lam of opinion that applying the evidence to the present record, a nonsuit should be entered for the foregoing reasons, did no objection exist to the form of the pleadings. I have not been able to satisfy myself that upon the footing of part performance, or any other princi- ple grounded upon the presumptive fraud of the party 344 HILAEY TEEM, 1 WM. IV., 1881. charged, or upon the merits ot the plaintiff's claim, the present suit can be legally sustained upon the evidence adduced, consistently with the terras of the statute. As the moral right to recover is to me, nevertheless, manifest, 1 am glad my learned brothers take a more favourable view of his legal resources. And it is not without much diffidence and great mis- trust of my own judgment that I feel constrained to differ from them. I shall be extremely happy if my future researches justify me in adopting an opinion different from that which I at present entertain. Par Cwnajw.— (Diss. Maoaulay, 3.)—Postea to the plaintiff. * ' , [346] EASTER TERM, 1 WM. IV., 1831. Present : The Hon. John Beverley Robinson, Chief Justice. Levius Peters Sherwood, Judge. James Buchanan Macaulay, Judge. ROCHLEAU V. BwWELL. The reoogmtion of a bond in a letter from defendant to plaintiff, with proof that a document purporting to be a copy or draft of such an in- strumsnt, was shewn by defendant with the title deeds of an estate to which It related, affords evidence to go to a jury in proof thereof, after notice *y defendant to produce, and a failure to defendant to produce any bond, copy or draft. '^ Several documents may be construed together as evidence of an aereement or note in writing under the Statute of Frauds. A conveyance in fee from plaintiff to defendant, with absolute covenants for title, but not for further assurance; a bond to defendant for further assurance at a fixed penod, on receiving an additional sum, and interest, wilh a subsequent written offer from defendant to plaintiff, to purchase another pronertv on paying a portion down and the residue at a future period, reoeivinK a bond from plaintiff like the former bond for a deed of confirmation as in the former bond, held under the facts proved and found by the jury to con- stitute an agreement, or note, or memorandum thereof, within the statute on defendant s part, to pay the sum specified in the bond and interest, on plaintiff's tendering a confirmation and demanding the same. SembU, that when to pleas of no agreement or note in writing, and also an agreement not to be performed within a year to the same count of the declaration ; an agreement was replied to the first plea, and a note or me- morandum replied to the second, and sufficient evidence of a not6 or memorandum is given, the plaintiff is entitled to judgment on the whole record, though such evidence might not amount to substantive nroof of an agreement. ^ Assumpsit.— The declaration contained two special counts, on a sale by plaintiff to defendant of a house and land in the town of Kingston, setting out in terms a special agreement, that in consideration that plain- tiff had sold the estate to defendant, defendant nnder- took to pay plaintiff £265, wilh 5 per cent, interest thereon, after the 13th April, 1829, if plaintiff should after the said 13th April, make and execute to de- 2y 846 BASTBR TERil, 1 Vhl. IV., 1.&87. fendanb a dfeed of confirmatioii fc ifeoicnt t6 conllnn and secure to the defendant a legal title in fee to »;l;,ft premises; and that after the iSth .Ipril plaintiff did execute, &c., a sufKe'ont deed> &c., and tendered the same to doiendant, and required him to pay the said sum of £266 with ititei'es* yet (lef^ndatit refnped to accept the deed and to pfty thf.^ moae;*, &c. 2nd count.~That it was agreed between plaintiff and defendant, that plaintiff should sell to defendant, lor considerations thereinafter mentioned, a certain other house and knd, and that plaititiff should exe- cute a deed of bargain and sale to defendant, for the consideration of £335, and that ailer l3th April, 1829, plaintiff. Upon payment vo him of £265, With 5 pet dent, interest, should execute to defendant a deed of totifirmation sufficient to confirm to defendant a legal title in fee, and that defendant should pay the said sum, ahd interest, on the delivery of the said deed. Mutual promises are then laid, and although the defendant in part performance paid the £336, and although plaintiff executed a deed of bargain and sale, &c., and after the 13th April executed a suffi- cient deed of confirmation, &c., and tendered the same and requested defendant to pay the £265, and interest, in all £423 15s., yet defendant did not nor would, &Ck The common counts were added. The defendant pleaded, 1st, the general issue, and 2ndj the Statute of Limitation^ " "d, after reciting the Statute of Frauds requiring ,;, ;;ment8 respecting ;he sale of lands to be In - 'ing, that there never 'viiB anv such agreement ■?■• miv memorandum or note thereof in writing and sign . hy the defendant as in the first count, &c. iABtm TEllM, 1 WM. IV., 1881. 847 4th to Ist count, reciting the Statute of Frauds re- quiring agreements not to be performed within a year to be m writing, that the action is to charge defen- dant with an agreement not to be performed within a year, and that neither the said supposed agreement nor any memorandum or note thereof, nor the sup- posed promise of defendant ever was in writing. 6th to second count similar to third plea. ,^lt to seeomJ count similar to fourth pjej^. 7th t first count th,t neither of the agreements werjB m writing, &c. 8th to second count similar to the last. Implication tP first plea joins issue. To 2nd, that action did accrue within six years. To Bri, precludi non, because the said agreement promise and undertaking, was made in writing and !!f ^ <^efendant, concluding to the country. To m,precludt non, because a memorandum or note in writing of the said agreement, undertaking, and pro- mise of defendant, was made in writing and signed t)y defendant, concluding to the country To 6th and 6th same as to 3rd and 4th. To 7th. precludinon because although true it is neither the undertaking or promise of defendant in said first count mentioned nor any memorandum thereof was in writing and signed by defendant, yet plaintiflF says that at the time of making the said promise in the first count „.........„,a, piamtra m part performance executed a conveyance or deed of bargain and sale in fee of the n '. 348 BASTBE TEEM, 1 WM. IV., 1881. said land, &c., under which the defendant entered into possession, and so continued from thence hitherto to the great loss of the plaintiff. To 8th plea, that there was a memorandum or note of the said agreement in the second count mentioned in writing, &c., conclud- ing to the country. The defendant joined issue on all but the replication to the seventh plea, to which he demurred and joinder in demurrer. The cause went down to trial and to assess contin- gent damages on the demurrer at the last Midland District Assizes, cor. Macauhy, J. The plaintiff proved a notice to produce bond, paper, &c., but no bond was prbduced. A paper, purporting to be a copy of a bond, was then produced and shewn to plaintiff's first witness; it was in plaintiff's hand- writing, and witness saw it in plaintiff's possession in October or November, 1826. He never saw a simi- lar bond in defendant's office, but he saw a paper something like a copy which was also in plaintiff's hand-writing. It did not appear to be signed or wit- nessed. Defendant, when lecturing witness on con- veyancing, said in illustration of the deeds essential to constitute a valid title, that on occasion of his pur- chase from plaintiff, plaintiff had tendered him a bond similar to the copy, but that he did not want it and rejected it— his title was perfect without it. That paper witness thought was signed by plaintiff, but it had no seal attached; never saw the paper but once. It was a copy only, and was handed by plaintiff to defendant, as defendant told witness. Defendant said he never had assented and never would consent to such a bond. Is confident it had no seal, and was neither executed nor witnessed. Defendant she\^ed witness other papers, receipts, &c. EASTER TERM, 1 WM, IV., 1831. 349 The next witness recollected being called upon to witness papers in 1818, at Mr. Washburn's office next door to which he lived-he witnessed three «; four papers-has seen the deed from plaintiff to de- tendant for the premises defendant now lives on- could not say whether there was a bond. One or two papers were read, but he had no recollection of a bond being read, nor of any paper being exhibited said to be a bond, nor had he since seen any paper which he then witnessed that is a bond. None of the papers he witnessed were printed-he thought one paper was drawn up while he was in the office. The attorney for the defendant was next called and gave testimony only to his knowledge not ac- quired through professional and privileged communi- cations. He knew of no bond-never saw a bond from plaintiff to defendant, nor any agreement- never heard of any arrangement such as that sug- gested by the plaintiff-oould not say there was any bond. -^ Another witness who had been a clerk in defend- ant's office was cal'-d. He knew of no bond— had no impression of a.y such bond : plaintiff often told him there was a bond, and abused defendant for cheating him, &c. The deed of confirmation was proved, and a tender of it to defendant, who refused it. It was then proved that plaintiff's father died in possession, and that plaintiff is his eldest son. The will of ;;laintiff's father was produced, but not re- ceive!, ^here being no subscribing witness produced to prove it. A note in the hand-writing of defend- ant was put in, dated 22nd May, 1818, addressed to ugo Master tbUm, i wm. iv., ieii. the plaintiff, in these words : " You said the ottipr day you wished to find somebody who would buy your house, (the stone one I suppose you meant,) on the principle «<' T>'>^i'^^ about a thousand dollars down, and the reL.uue when you sliould give a deed of con- firmation, at the age of 35, on which principle you said you would dispose of it very low, but did not name a price. Will you gratify my curiosity so far as to name your price." Other notes were produced, written by defendant about the same time, to the plaintiff, which shewed that he was in treaty for the premises, but contained no new propr sition. A copy of the deed was pro- duced and admitted, dated 22nd Ouue, 1818, con- veying the premises in question in fee simple abso- lutely, for £335. No receipt for the purchase money was endorsed, and it was executed by pkin- tift' alone. The second witness called by the plain- tiff w'^.s one subscribing witness. The other is dead. On the back of the deed is a writing, signed «nd seak 1 by pi ntiff and defendant, referring to the deed, and stipulating that a lease of the hoL e which HA been made till May next, should remain. That plamtiff shoull receive Uie rent, and that his wife should, within four n^onths, duly Lar h' to be charged herewith/ No question rises in this case as tofhe stature by an authorised agent. After examining the different cases, I think the bond found by the jury may be regarded as if signed by the defendant in consequence of his recognition of k in the note of in 2 B Tp ';7« '^ '"'' '"'^"'^^ ^^ ^•"^- The case in 2 B & P. 238, is strong to this point ; 3 Br Ch Oa. 319 ,• 1 Esp. N. P. C. 105 ; bears upon the same question, and it shews also to what extent the courts have been willing to go in giving a liberal construction to this statute. In 2 M. & S 289 is a case in which the court held that the printed name of the vendor at the top of a bill oi parcels made a sufficient signing to charge him with the bill of parcels, as upon an agreement, because he had filled up m his own hand-writing the name of the vendee which was looked upon as an acknowledgment by him of the printed name as his signature. That the signature to an agreement which itself is not signed may be supplied by a letter or other paper referrino^ to It, and which latter bears the signature of the party to be charged, is clear upon the authority of several cases. This is treated as an undoubted principle of law, in the respectable trMfi.P nn ih,. «mute, by Mr. Roberts, whose reasoning and obser- ,' ^1 1^! 358 EASTER TERM, 1 Vlit. IV., 1881. vations show much research, and a familiar acquain- tance with his subject. Sugden, in his work pn Real Property, and Evans, in his edition of Pothier ou Obligations, treat this as an admitted doctrine, and the cases are numerous on that point, and some of them, I think, are grounded on facts less conclusive ill their nature than were in evidence here. The next question that arises is, whether if the signature of the defendant to the bond be supplied throns;h the medium of the subsequent letter, there is in that bond any agreement upon which the defendant can be charged: it contains, it is said, nothing obligatory upon him : it professes only to bind the plaintiff to do certain acts : it was given to secure the defendant, and how (it is asked) can there be derived from its language any stipulation binding upon the defendant ? That objection, it appears to me, is answered by many decisions which have taken place in similar cases, and indeed the statute itself allows reasonable latitude on that point. It does not require that there shall be an agreement signed by the defendant, but a note or memorandum of an agreement, a re- cognition, in other words, under his hand that he did agree, no matter whether verbally or otherwise, to the stipulation which forms the ground of the action. Tt is clear from cases in law and equity, that it is not necessary the defendant should have signed a writing containing the language of an express undertaking on his part, such as covenant for instance could be maintained upon, if it were in a specialty. The case in 1 Wils. 118, and 3 Atkins 503, is a remarkable one upon this point, for there the defend- aiit signed a deed us a witness, not irieaaing to csc^ EASTER TERM, 1 WM. IV., 1881. 359 cute as a party, and not being a party to the deed ^"e ouTo'l'" : T': "^ »«-' ""e taken : stetement of certain terras to which he assented or point to shew that the'stlr-is^o'; LIS:;; require such an agreement in writing as woSd in its very language sustain an action against lede en »t.t,a„d that it is not held to be an objectioft ^ the other party is not reciprocally bound I,y h' Hgreementm evidence. I have met with a™, „ case ,„ which a party having signed an arb t a io bond refemug it to a third person to lix a va u o an estate, was received as sufficient evidence ol a" agreement to bind him on a contract for the sale although .t is clear that the arbitration bond could ". Itself have constituted no contract of sale nor have furnished any words of covenant or nroiuise on which alone a declartion could be framcj andr; ported. I think, indeed, no question arises here as to mutuality of obligation in the agroemen iTe^e" to be made by the bond and letters ; for in the !Z htm elf content w.th his title ; and if he wa, not, the bond 01 l..r. ,.,„r.;(r as found by the jury obliges hira to ma... th.,,leed of conlirmation; and fhisdeed he did mal , aad tender to the defendant. There was another objection on which the defend- ant s counsel laid much stress. It was argued that I 3aQ BASTEB TBRM, 1 Wll. I?., 1881. if the terms of the agreement caa be taken as stated in the alleged bond, they are such as to defeat the present action, because they made it necessary that the defendant should have required the deed of confirmation, and the plaintiif has not alleged any such request. That on the contrary he has proved expressly that tl»ere was none, and that the defend- ant declined even accepting the confirmation when it was tendered, and cannot therefore be held liable to pay the money which he was only to pay as a consideration for the plaintiff giving him that deed whenever he (the defendant) should request it. That argument appeare*: to me at the time in the same light tl^at it does at present. Nothing is better established than that contracts are to receive a just and sensible construction ; it would be useless to cite cases to this effect ; I will only advert to 12 Ea. 470, which turned upon the construction of a provi- sion in an indenture of lease, and in which the court say, " We think the true construction of this pro- viso is not according to the letter but according to the spirit, and that we may adopt the expression iu Dyer, 15, a., that in every deed and condition whicii are private laws between party and party, a reason- able and equal intention shall be construed, althougii the words sound to a contrary meaning." It ap- pears plainly on the face of the bond, and by de- fendant's notes of May and October, 1818, that the sum behind was part of the purchase money of the value of the estate, and a very considerable part, which the defendant, not being quite satisfied with the title the plaintiff could then give, determined to withhold for the present, and until the plaintifl' should at his request give a deed of confirmation. EASIER TBRM, 1 WM. IV., mi. 361 Indeed it would be a very strauge and forced sud position to imagine, that defendant was to pa^^^^^^^^ more than the actual value of the property in ordeJ to get a deed that he had a fancy to. TheVason of the thing IS apparent, and the very stipulation in th^" bond, that interest shall be paid on the £265 hews that sum was not a mere consideration for a pkperTo be executed, when the plaintilT was thirty-five years oW but was a part of the value of the land withheld till that period, and upon which therefore it was rea- sonable defendant should pay interest, as he enjoyed he estate. The mention of request I consider as having been inserted in the bond for no other pur- pose than to give the defendant an opportunity of hastening the performance by plaintiff, by making his request, or, perhaps, in order to show it was the defendant who was to prepare and tender the deed and It would be giving an iniquitous effect to those words, to allow the defendant to say, " I don't want your deed, I am satisfied with the title you have al- ready given me. and tiioreforc I request no olher and will keep the estate and pocket the remainde^ of the purchase money." His waiving the deed is m my view, equal to accepting it. especially when he declares that he waives it. because he is satisfied with his title as it is. What is said in Comyns Bk Covenant. A. 3, and in the cases there referred to has no application to the circumstances between these parties. I have had less doubt upon any of these points than upon the one which I will next proceed to mpn- i.ou. The aeed declares in the body of it, that the plaintiff conveys "in consideration of £335 to him o A 362 EASTER TERM, 1 WM. IV., 1881. in hand paid, the receipt whereof is thereby acknow- ledged." It contains no words stating that to be the consideration to be paid, nor any words releasing the grantee or the land, and there is no separate receipt endorsed. Whether under these circumstances the plaintiff is absolutely estopped from proving that the consideration was a larger sum, and the excess is not yet paid, is a point on which T have had much diffi- culty in coming to a conclusion. The case in 2 T. R. 366, and 3 T. R. 474, are clear authorities to show that for other purposes and as between other parties such proof can be received, and that, even where a formal receipt has been endorsed, and in explicit language. They show also, that the allegations o( an additional consideration, besides that expressed, is held not to be repugnant to the deed. The cases in 2 Taunt. 141, and 1 B. & C. 704, however, are strong authorities to show that an express release and receipt contained in the deed are binding on the grantor, though certainly in the case in 5 B. & A. 606, the court got over the difficulty by a very forced construction. In Styles 462, the receipt in the deed is not considered to be conclusive evidence of pay- ment, and in 2 P. Wras. 295, proof from a letter of the grantor that the purchase money was not paid, was allowed to prevail against the receipt in the deed and the separate receipt endorsed. Upon the autho- rity of these and other cases Mr. Barton, a convey- ancer of much reputation and experience, comes to the conclusion, that the evidence of the deed and receipt endorsed is not conclusive. Mr. Sugden, whose opinion receives weight from his present high legal station, clearly comes to th» same (tonclusion. In equity the cases are numerous to show, not only EAS'ii-.. TERM, 1 WM. IV., 1831. 333 L^le tefri'"?'^ '"" ^^ '^^'^^'^ ^« unpaid in the face of the deed and receipt, but that it forms a hen on the land, and when no' sepamte e Lt endorsed on the deed, it is such a lien as may be n forced a^inst any purchaser, on the ground that the want of a receipt on the back is fair notice that tt estete was not paid for. The case in 15 Vel u r 329, 18 most satisfactory on this point. S Jli' !r'' *^'* ""'^^ ^^' '"'^'P"^^ «f the case in ' J^^llul 1' '"''?'' '" '^i"^^>'' ^"*' I cannot bring myself to the conclusion, that when equity will dvf a remedy even against a third person, a court of Taw tZl^H^J'" ^'/" ^^^^^^-' -evitably regT Ae deed to be an absolute estoppel between the ori- ginal parties and allow a purchaser to hold the estate without paying a shilling for it. If the case wee one on the strongest ground in favour of a party when the deed expressly states the same to be in ful for the consideration, and contains words releasino- the grantee and the land itself from all further de! mand, and when the usual receipt is endorsed, and if this release were pleaded as an estoppel I am not sure t at in the absen. of fraud, it would iTouod possible to sustain an action for any pm or the pur- chase money really unpaid, and indeed, few more important questions can be agitated in this province where we have no Court of Equity, and where the practice which obtains in England is much more gen- eral of endorsing a receipt where in truth the monev has not been paid. In this case there is not the asuax separate receipt; the body of the deed acknow- ledges the £365 to be paid, rat It does not say thit Ml ..il 1 S94 EASTER TERM, 1 WM. IV., 18U1. it was the whole consideration, though probably that is the fair inference, yet it does not in modern cases seem to be so considered. Again, the case has gone to the jury on the facts: no estoppel by deed has been pleaded, and the jury, it is said, may in all cases where the estoppel is not pleaded and is not by matter of record, find the truth, not'vithstanding such estoppel. This doctrine is laid own in all books on the subject, particularly in Bull N P. 298, and is recognised in 2 B. & A. 672.- -(See Com. Dig. Estoppel C.) The plaintiff does n( here claim any part of the £365, which the deed states to have been paid, but he claims a sum beyond that, as part of the consideration^ not yet paid or acknowledged to be paid. This, nevertheless, is the point on which I have had aud still have the greatest donbt; my opi- nion upon it is in favour of the plaintiff, and as that opinion accords with the justice of the case. I have the less difficulty in inclining to it. There are other considerations which apply in this case, and which are not immaterial. There ha? been a part performance to say the least of it ; the defen- dant has received the estate— botli the title and the possession— as I understand to be admitted. The weight of authority seems to me to preponderate against that being sufficient in a court of law, and the opinion of the Lord Chancellor, in 6 Ves. 39, is strong to that effect. There is, however, some weight due to the authority in 1 Br. Ch. Ca. 417, in which it is stated to be the received doctrine in the Court of King's Bench, that a part performance would avail there to take a case out of the statute. In 1 Ves. Juar. Mr. Justice Bidler expresses a strpng QpiniOB EASIER TERM. 1 WM, IV., J881. 3«6 A^/rf, in 1 Bl. Rep. 601 is remarkable. " The oues- ion IS singly upon the Statute of Frauds, whether he contract is void by the provisions of tha posi t law. The object of the legislature in that, atut Tas a Wise one, an.i what the legislatn .eant is The the same. The key to the construe >n of the statute^ IS the intent of tl.e legislature, and therefLe many ca^es though seemingly within the letter, have been n Courts of Equity, not in courts of law. but the rule m both IS the same." The language of the court in 3 Taunt. 169 is similar. I do not however rely in this case on part performance, nor indeed on the entire performance on the part ^ the vendor, which makes it a sale of ands ami not an agreement for a sale, and seems to reduce the question to recompense for a thino- done on the onr ide and acceptcJ on the other. (See 1 Vvils. 117.) ^ I think it worthy of observation, also, that thede- iendant has in fact executed the deed of conveyance as well as the plaintiff, by signing and sealing the yeement endorsed on it, which expressly refers to the deed within. This, independently of the bond and other evidence, shows a sale of lands by a writ- ing signed by both parties, and then it remains a question whether an additional consideration can be proved by parol. It has occurred to me, also worthy of some attention, that in a case on the Statute of Frauds, in Lofft's Rep. 332, much stress is laid upon pS' ■ ^ IMAGE EVALUATION TEST TARGET (MT-S) ^/ ^- .*t^ 1.0 1.1 11.25 » Bi 12.2 S US 12.0 U 11.6 Phntnarapl-iip .Sciences Corporation '^'C' ^^^ 23 WBT MAIN STRHT WnSTIR,N.Y. 14SM (7:6)t7a-4S03 '^ 36C EASTER TERM, 1 WM. IV., 1831. the party being in possession of the instrnment on which he is charged, although he has not signed it. Lord Mansfield says, " I agree that every construc- tion of the statute which would be good in a court of equity would be good in a court of law, for equity cannot relieve against the legislature, and every court of law is bound to construe according to the intent of the legislature." The note was signed by the plaintiff only,. but it was in possession of defen- dant, and in allusion to this Lord Mansfield says further, if it were necessary it is out of the statute, because a note signed by one and in possession of the other, amounts in this kind of case to the same thing as if the party had signed it. Here the jury have found that defendant accepted the bond signed by the plaintiff. I do not however rest upon the authority of this case, nor am I satisfied that if strictly applies. The Statute of Frauds, it has been said by a great authority, is to be used as a shield and not as a sword; and Mr. Justice Wilmot, a very eminent judge, has observed, (1 Bl. Rep. 600,) "Had the Statute of Frauds been always carried into execution according to the letter, it would have done ten times more mischief than it has done good, by protecting, rather than preventing frauds." Against rigorous and unfair applications of the statute, courts of law and courts of equity have constantly leaned. Here, unfortunately, we have no court of equity. That inrcumstance would not justify us in advancing one step beyond the proper jurisdiction of courts of law ; but if we should fail in allowing to contracting par- ties the benefits of every principle which courts of ich courts of liSTER lEBM, I Wll. IV., IMI. 3g» ^n,"^'^, '" ^'"Bland, it makes such failure examined (he decisions which have talten place in raised I have found less reason to donbt ttat the aw m this case is in accordance with justice aiuin .ngwhatfte jury have fonnd-that t^^ZZ Ih. described was given by tlic plaintiff and aecente^ by the defendant, and considering that suchTln was subseqently referred to by the defenrtl paper signed by hi™. The te'rils „ " fe t elt expressed in writing, definitely, and wi ho„7 al ".guity are thus recognis.u by the parr o bJ chaiged, and the requisition of the Statute of ftaud IS substautially complied with. It is said by Lo„ fta^lr ^.-^"'- '»'■ '"^^ -eaning,, Z Statute of Frauds is to reduce contracts to a cerlaint v m order to avoid pe.-jnry on the one hand and f™,,' on the other and therefore both in this Ir and the courts of common law, when an agreemen h" ofZlta: h*" 'r" " '''"'"'"^' '^'^ *" '""Slant 01 the stotnte has been complied with in the material p«rt, the forms have never been insisted on." We have felt it necessary to look particularly into the proceedings, to see whether thev are such as to admit of the application of the evidence in manner that will sustain the issue. Not that th,- court would in general be desirous of favouring any technical objection that had not been insisted ,„«, "1 argument ; but from the peculiarity of the cir eumslances, the learned judge was induced to reserv,. the case m terms so general, as to make it incnmbeut !J ". 368 EASTER TERM, 1 WM. IV.. 1881. on the court to consider the whole record and evi- dence minutely. I should therefore feel bound to give way to any legal objection to the plaintiff's recovery, if any appeared. Two or three questions have presented themselves upon the pleadings, which it is unnecessary now to state, because a full con- sideration of them has resulted in the opinion, that the action is sustained upon the whole record. Sherwood, .).— I think it unnecessary to add any thing to the statement of the Chkf Justice, as to the material parts of the evidence adduced at the trial of this cause. I concur in the view which he takes of the Statute of Frauds, so far as regards the pre- sent case. This action, in my opinion, is sustained on the second count of the declaration ; and with respect to the other counts, it is not necessary to enter into a pa'**'calar examination of each of them on the questin 7 before the court. The demurrer is yet to be argued, and I take it for granted the counsel for the defendant is prepared to object to some of the counts. Macaulay, J. — 1 entertained much doubt at the trial, whether in this case there was sufficient evi- dence to go to the jury, in proof of the delivery and acceptance of the bond alleged to have been given by plaintiff to defendant, but further consideration has satisfied me that the case was proper for their consideration. It would have been satisfactory had the existence of the obligation in defendant's hanils been more fully and explicitly established; yet, jis the finding of the jury is not sought to be disturbed on the ground of the testimony being slight in itself, ' II EASTEn IBIM, 1 WM. IT., ini. sa» M Wigbing ogainat the verdict, but to be impnened ^nnaupported by any legal proof, the courtTnot a^ ed npon to express any opinion npon the resnlt or It to be snbmitted to them. „»?!' 'l'''™""" "l"''!! the «rst witness saw was not produced on notice, and it was competent t'oZ W not only to bear this in n>i.,d, but to we'Ih his testimony with the other circumstances elpriat l^T^^'r^T'"' """^ Oo'-dantf „d^ The letter and proposal of October were oronerlv considered in the «rst place as alf,rdi„rpro7„"'l iwnd. The bond being found by the jurV ,he conr. miat now consider the whole of iZ aI " ^.her. . illusti^ting one'tn^ct. '"Srthe CMC depend upon the bond alone, I should h sitlte ong before I held that per « it contained ev due of ri implied promise or agreement on defendant^ 2i« '"V^r""' ""'' '°'"^" mentionedTn e condition, at all events, the langnaee be.n„ Z, r the phintiff only, and not imS mufnamv^ coutr^^t. but a discretionary con'S^^tion'pCfot defendant's part. The bond, however nZ Z with flie consideration and description of the propert v »r„ ^^en .>«cAer, they seem to me to explain the t'. , 370 EASTER TERM, 1 WM. IV., 1881. bond, and to establish, by the occasion and nature of the transaction, that the ostensible condition pre- cedent on the face of the condition, was in truth the consideration promised on defendant's part, upon a reciprocal agreement. It is unimportant to enquire minutely whether the deed in July could estop plaintiff from disputing payment of the consider- ation. It is not pleaded as an estoppel, and the evi- dence shews that the money sought in this action forms no part of the sum acknowledged in the deed. The whole subject matter is laid before the court, from which it appears that a balance of the original price is now claimed, which was postponed till u confirmation should be delivered, after a named period — an arrangement consistent with the convey- ance of July.— 3 B. & P. 181 ; 2 P. Wms. 292 ; 1 Camp. N. P. 392, 3 ; 5 B. & A. 606 ; 1 Ea. 624 ; 1 B. & 0. 704 ; 8 T. R. 379. A bond and condition may, by recitals or other- wise, contain ample proof of the consideration and agreement on the obligee's part, and such instruments are often received in equity as proof of agreements. In other cases, they may be totally silent as to the obligee's promise. Again, they may partially shew it, and in combination with other matters, fully es- tablish it. The court must receive and construe the contents of conditions like other written evidence. II is clear too, from a review of the authorities, that although under the bond the plaintiff's became a specialty contract, still, in the absence of any sealed agreement by defendant, the agreement on his pari amounts to no more than a simple contract. — 2 B. k A. 375 J 3 B. & A. 587; 5 B. & C. 602. EASTER TERM, 1 WM. IV., 1881. 371 The Statute of Frauds being pleaded, I have de- voted much attention to that part of the ease, and am of opinion that the whole written matter amounts to a sufficient note or memorandum of the agreement withm the statute. The proposals iu May mention the premises, suggest the probable amount of the immediate advance, and mention a confirmation The deed includes the same premises; names a considera- tion not much greater than defendant spoke of, and no receipt is endorsed, and no covenant for iurther assurance inserted. The conveyance being to operate permanently, sufficiently accounts for the other cove- nants which it does contain. The bond recites the deed, mentions a sum to be paid with interest, and guarantees a confirmation. The letter and proposal of October refer to the residue of the same premises: the bond, and a confirmation, &c. The last letter is signed by defendant, and refers to the enclosed pro- posal, with which it might be connected even by parol as well as by internal evidence being referred to and with which it is connected by the verdict The proposal is in defendant's hand-writing, and con-' tains his initials; it refers to the bond, to a confirma- tion, to a sum to be paid at a future day, with in- terest, &c. The bond referred to is ascertained by the jury, and being found, the whole are connected together, either by such finding, or their internal evidence, the last of this train of documents, which by pursuing the references extends to and links the whole, being signed, and the whole amounting to such note or memorandum as the statute requires, it fol- lows that a note or memorandum of the agreement signed by defendant is established.— 2 B & P 238- 5 Esp. 190; 3 Yes. Jr. 333; 1 Atk. 12; 9 Yes. Jr' ■Mill ■m 872 EASTER TERM, 1 WM. lY.. iMh 262; 12 Ves. Jr. 471; 3 Taunt. 169; 6 B. &C. 438; 1 Bing. 9, & 196; 7 Moor. 219; 1 Price 64. The last objection is the application of the agreement to the record. I incline to think the consideration is incorrectly stated in the first count, but I conceive the second count sustained. The agreement is there- in detailed according to its legal import. I for a time thought the plaintiff should have stated the whole consideration to move from defendant, to entitle him to a confirmation, namely, a request as well as pay- ment, the latter of which only is set out, but as the plaintiff has set out the entire consideration on his part, and the entire act in respect of which he seeks redress, I d^em it sufficient. Were defendant suing he would be bound to show a request, but plaintiff might anticipate it, there being no discretion in de- fendant to forbear indefinitely to make it. —2 Burr. 899. And in an action for the money only, after a tender of the confirmation without request, I do not think it incumbent on the plaintiff to notice it in his declaration. Then under this second count several issues are raised; I think all are supported in favour of the plaintiff, unless it be the third, which applies to the Statute of Frauds, and asserts that the agree- ment was made in writing, signed by the defendant. Now, though I think there was a sufficient memoran- dum or note thereof within the. statute, I am not satisfied this issue is supported, though perhaps it might be properly held to be substantially proved by evidence, either of an actual agreement, or of a note or memorandum thereof. However, the fourth issue relating to the same section of the act, and the same act, and the same count and agreement, being found for the plaintiff, it follows, that upon the whole re- "«B»iHm, iwnnr, iMi. 373 cord, plamtur u, entitled to jadgment on the second oo«Dt; the event of the third iseue therefore is nnin,. portant; acomplmnce with the statote is establish^ n » no necessary to «lvert to the snbseqoenTrnte ' side.^L"".f'"l,'"'°P"""''' "J"" «"« f»"»»tcon. fflderation, though not free from donbt Ist that there was snfficient eridence to go to L inrv ,! warrant them in finding the sealf^ deter7.nd a««ptance of the bond, 4c. 2nd, L all Si menta conshtate together snfficient evidence ofTe mntoal agreement, and amount to a sufficient note or dared upon m the second count. 4lh, that the firat second and fourth issues under that conn are sn,: toed m pUmtilFs &vour, though the third is doub • ful. 6lh that npon the whole record the plaintff is enflied to judgment on the sec 3 conn" for the amount of the verdict. Per Ciirasm.— Judgment for phtintilf. See 6 Ea. Ill; 6 Ea. 564; 8E87&8-9R* B. 369; 4 Taunt. 286; 7 Bing! 67476 B.Vc. 2?6,* 374 SA8TEB TBBM, 1 WM. tV., 1881. Doe ex. dem. Howard v. McDonnell. A. & B. received patents for kdUoioing lots. A. inxlTerteDtly o«enpiej: S76 ■Asnm ntii. i wm. it., i«ti. Grown to these twenty-two acres, which at the time Oalpin went away, and long before, and since, were openly in the occupation of defendant, or those under whom he holds, and not in privity with Galpin, and that the Statute of Limitations has therefore ran in fkyccr of defendant. BidmU shewed cause. Jndgme:.!; was not given till this day. Gbiif JtrsTicB. — So far as respects that part of lot No. 9, of which Howard could be considered as being in actual possession with Flint's conseift, at (he time Flint made the deed in question, there could be no ground for contending that the deed could not operate as a release. As to its operating as a covenant to stand seised to uses, that is of course out of the question for want of a legal consideration to support such a covenant ; but that Howard could take under it as a release, which it purports to be, is clear, because Howard being in by Flint's per- mission, was tenant at will to Flint, and being so, could take from him a release in fee. — Go. Litt. 270, b. I am further of opinion, that upon the case before us, Howard being in possession of the lot generally, as tenant to Flint, and taking from him a release of the whole, is entitled to be r^rded as seised of all that Flint could legally convey, or in other words, to stand in the place of Flint Then the question seems to be inevitably brought within a narrow compass by the expresaive provision of our pro- EA8TBR TERM, I WM. IV., 1881. 377 yincial statutes 64 Geo. III., ch. 9. and 58 Geo. Ill ch 12 Under the former statute the inquisition which was returned against Galpin had the eflTect of vesting lot No. 9 m His Majesty, subject to the right of any person interested in the land to traverse that inquisition with- in a year. Under the latter statute, particularly the 7th and 12th sections, the commissioners of forfeited estates, and by consequence their vendee, must have acquired, for any thing that appears in this case to the contrary, indefeasible and incontroveri.l>ie title to No. 9 ; and I hold, that we arc not now at liberty to enquire, whether by the operation of a disseisin and torce of a twenty years' possession, or even by any direct title derived from Galpin, or from the King himself, a better claim to part of lot No. 9 can be made out by any person else. If the defendant m this action, or any other person, had in truth a better title than Ga'pin had, at the time when the jury found him to be seised, he certainly is pre- cluded from urging it now, and in this manner, or no faith can be placed in the express enactments of the legislature. What land No. 9 embraced could always have been ascertained and clearly shewn since the pa.ssing of the statute 69 Geo. TIL, ch. U, and if a title ad- verse to that of the Crown and contradicting the finding in the inquisition, had been acquired in any part of it, it was incumbent on the claimant under such a title to have advanced it before the purchaser of this forfeited estate became absolutely confirmed under the statute, as I think he now is in all the lands that No. 9 comprehends. Being of this opinion, as to the effect which must 8o m EA8TBB TSBM, 1 WtS. IV., ISai. be given to the statutes respecting forfeited estates, the points which were ably argaed upon the opera- tion of the alleged disseisin and of the twenty years' possession by the defendant and those under whom he claims, could not be allowed by us to affect the decision in this case. I have, nevertheless, endea- voured to make up my mind upon them, as upon questions which have doubtless an extensive bearing upon real estates in this province, I mean chiefly in tiiose cases in which boundaries are in dispute, and I rill only say here, that as at present advised, I do not think there Is any thing in those points which would have brought me to a different conclusion if we were at liberty to have decided upon them. Sbisrwood, J. — (Alter stating the case.) — I am of opinion, the facts contained in the inquisition could not be legally disputed except by traversing the in- quisition itself, conformably to the 2nd sec. 64 Geo. III., ch. 9, or by making a claim before the com- missioners, according to the 7th sec. of 58 Geo. III., ch. 12. It is not alleged in this case that the de- fendant or any other person traversed the inquisition. or exhibited a claim to any part of No. 9, before the commissioners appointed to decide on claims of that nature, for which reason I think no claim to any part of the premises can now be set up against the King OP those claiming under him. The words con- tained in the 7th sec. of the last mentioned statute, appear to me to be plain and conclusive on this point : "In default thereof," (that is of .jaking a claim,) " every such estate, right, title, interest, use, possesii.ion, reversion, remainder, annuity, rent, debt, charge, or incumbrance, into, out of, or upon the EASTER TERM, 1 WM. IV.. 1881. . \'-lM m hereby declared to be null and yoid to all intents and purposes whatsoever, and the estate or esltes Z T"'' w ^^ ^"' "^'^'^^ there^Uh Tal from thence be freed, acquitted and discharged of and from the same." By virtue of these two statutes and the proceedings which were had under t em Wnk the legal estate in No. 9 was wholly vested in • ,tjrrr''"'''' '°^ '^''' '^'y ^«^« l»^f°"y pos- sessed of iU. pj.e„,.ses, and held sufficient right and anthority L. .ell and convey them to Flint It is ^mitted by both parties, as I understand, that Flint sold the premises to the lessor of the plaintiff and gave him a bond conditioned to deliver him a deed at a future period, and at the same time gave him possession of the lot so far as he was in possession of It himself as grantor of the commissioners. After- wards, and while the lessor of the plaintiff was in pOTsession, Flmt for a valuable consideration execu- ted a deed to him, by which he " remised, released and for ever quitted claim " to the lessor of the plain- tiff, his heirs and assigns, "all the estate, right, title and interest " of him the said Flint, to lot No 9 aforesaid. The deed was duly registered. The counsel for the defendant objects, that the deed from Flint conveyed nothing to the lessor of the plaintiff, because it can only be considered as a release. The lessor of the plaintiff had no estate in the premises upon which the deed is considered as a release, only it had the effect of vesting a legal title mfee simple in the plaintirs lessor; I think that he was tenant at will, and that his estate was enlareed by his having received a release of the inheritance S80 EASTER TERM, 1 WM. IV., 1881. by virtue of the deed. If a man enters and enjoys land by the consent of the ow4er, although there be no express lease, he is tenant at will. — Co. Lit. 66, b.; Bo. Abr. 859; 1 Wils. 176. The deed might also operate as a bargain and sale, because it is not necessary in such a conveyance, to use the precise words " bargain and sell," for any equivalent words are equally valid.— 2 Inst. 672; Cro. Eliz. 166; JL Vent. 138; 3 Leon. 16. When one man for a Valuable consideration in money de- clares by his deed duly executed, that he has quitted claim of all his estate, right, title and interest, of, in and to certain lands, to another man, and to his heirs and assigns for ever, I think his intention is quite as well understood as if he uses the words " bargain and sell," and that such a deed is sufficient to convey the estate. C. J. Willis said, " the words are not the principal thing in a deed, but the intent and design of the grantor."— 3 Atk. 136. And the same judge said on another occasion, " by the word intent is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any parti- cular mode or form of conveyance, but an intent at all events that the land shall pass one way or the other."— 2 Wils. 78. In Cowp. 601, Lord Mans- field said, " the rules laid down with respect to the construction of deeds are founded in law, reason and common sense, they shall operate according to the intention of the parties, if by law they may." I think the whole estate in No. 9 was vested in the Crown by the inquisition, and was subsequently vested in the commissioners by the 58 Geo. III., ch. 12, and that the King in the first instance, and the EASTER TERM, 1 WM. IV., 1881, 3^1 commissioners afterwards, were in legal and actual In 'ny opmion. therefore, the Statute of Limitations. 21 Jac. 1, ch. 10. gave the defendant no right to possession because the possession of those under whom he claims, prior to the return of the inquisition w^ taken away and ended by that proceeding nd the registry of the extract of it transmitted to the commissioners under the subsequent act 58 Geo. It is therefore unnecessary, in my view of the ^ol t'TT f '''''' '^' P"^^^^^'«° «^ tbo«e under whom t^e defendant claims title to a part of lot No 9 was adverse to the possession of Galpin or not «; whether such possession constituted a disseisin, be- fore the premises were forfeited to the Crown I til li' '!'?'^'"* ''^"'^'^ ^^ ^'g'^t of possession, since the estate vested in the commissioners and consequently that plaintiff's lessor is entitled to judgment. ^Tn't\ *^-~^^ ""^^ P'^^^^ '"^ this case that one W. C. had possession of lot No. 10 thirtv-two years ago, and that the land in dispute was taken possession of by him as a supposed part of that lot and as such occupied ever since, being cleared' fenced and built upon. Lot 9 was occupied about the same period by Galpin. or those who claimed under him. Galpin was seised of lot No. 9, on the Ist July, 1812. and having left the province during the last war his estate was confiscated under the alien 6i Geo. III., eh. 9. An inquest of office was taken in 1817, finding lot No. 9 forfeited to the \\ k 382 EASTER TERM, 1 WM. IV., l«8l. King. In 1818, the act passed which at present regulates the manner in which side lines are to be run between lots, and at the same time was also passed an act for vesting in commissioners all the forfeited estates, for the purpose of being sold. Lot No. 9 became vested in the commissioners, according to the provisions of the latter act, and was some* years afterwards sold and conveyed, according to the act, to Billa Flint, who sold to the lessor of plaintiff. The occupiers of No. 10 have all along possessed the twenty-two and a-half acres claimed in this action, all parties until of late years suppos- ing it to compose a part of that lot ; but under the system of survey established by the boundary act they are found to fall within the limits of No. 9, consequently within a few years disputes have arisen on the subject, so much so, that a tenant of No. 10 under defendant restored the lot: he had possession two years and then delivered it to another person, on defendant's behalf, who had it for one year, and was the tenant in possession at the time of the trial. It appeared that Flint had not been in actual visi- ble possession of the disputed part, nor in receipt of the profits and rents thereof, within the last three years. When the disputes first arose did not clearly appear, and the survey which determined the tract in question to belong to No. 9 had been made about a year or so before the trial. The affidavit admitted since the trial shows, that the lessor of the plaintiff was in possession of No. 9, generally, under Flint, for two years before the release executed by the latter to him, and that the release was executed in the spring 1830. It is contended, 1st, that under the MSISR mu, 1 WM. IT., IMl. 388 faefa proved, the twenty-two and a half acres were no vested i„ ,he Cro™ by ,he inquisition ri8U and consequently not in the commissioners, or Fl nt under the.r deed. 2nd, that the deed fr m F n does^not contam operative words to transfer the The provincial statute 54 Geo. III., ch. 9 enacted grants of land, or become seised of land within the province, by inheritance or otherwise, and should w.t draw &c., should be taken to be ali.. and in 1 pable of holding lands within the province; that com- missions should issue to enquire by inquisition under the hands and seals of twelve jurors, and of the com- missioners, of all persons who seised of lands &c should have withdrawn, &c., and from and aftc; the finding of such inquisition his Majesty should become seised of the lands'so found to have been in the seisin of such person, on the 1st July, 1812. It was assumed, that both lots had been granted by govern- ment abcmt thirty-two years ago, and that thereby the grantees respectively became seised, and that they respectively entered into po8sesf5ionaccor(^ingly In 1817. the King, by office found, became seised of the lot m law and in fact, as far as the same was vacant, that is as far as the freehold was vacant He of course, was seised of all except the twenty-two and a half acres now in dispute, and of them he acquired an equal seisin as forming a part of lot No. 9, If Galpin was in law seised thereof, on the 1st July, 1812; in other words, if he had not been dis- seised before or upon that day. The authorities do not fieem to warrant the inference, that the occupa- I V f 1' 884 EASTER TERM, 1 WM. IV., 1881. tion of the premises in dispute by the ownerg of No. 10, as proved, (being inadvertently embraced as a supposed part of the latter lot, without any view or apprehension of an encroachment upon No. 9,) con- stituted a disseisin. Consequently by the ostensible possession of the owners of lot No. 10, the proprietor of No. 9 was not disseised of the freehold of the twenty-two and a half acres, but continued seised thereof until the 1st July, 1812; that in short the possession was not adverse, that there was not ouster fenough to bar an ejectment after twenty years, unless after the expiration of such a period a jury would be warranted ii^ presuming an ouster, but the title of the King intervening excludes such presumption. The boundary act, and act for selling forfeited lots, were passed the same session. In the absence of claim, the latter seems to have vested absolutely in the commissioners lot No. 9, without exception, ol which the twenty-two and a half acres formed part. I do not think the boundary act is meant to operate upon possessions so as to supersede the Statute of Limitations,but the question always should be,whether the occupier of a tract of land as composing part of one lot, found by the mode of survey therein pre- scribed to belong to another, so occupied as a dis- seisin of the owner of the adjacent lot, or adversely within the Statute of Limitations; if not, then the Statute of Limitations would not run; if otherwise, I should think twenty years' adverse possession would bar an ejectment, whether the period expired pre- vious or subsequent to the boundary act. After twenty years' undisturbed possession the usual legal presumptions would equally operate whatever He origin might have been. The 69 Geo. IIL, ch. 12, BAflTBH TERM, 1 WM. IV., lesi. 355 whnJ!® ?.?' commissioners the actual seisin of the whole of No. 9, they were seised of the freehold estate m the twenty-two and a half acres, notwit^ stand.ng the occupation by the defendant who did not possess as. a disseisor but by mistak; Being Flint, who, by entering mto possession of No. 9 gene- rally, became possessed constructively of the whole plamfff, who had entered into possession as much as two years previous to the release, and to whom whde possessed, he released in fee. The possession of the freehold being consistent with the occupation of the owners of No. 10, through mistake, and not as disseisors or adverse holders upon the ouster of the tenants of No. 10, the lessor of the plaintiff was capa- ble of recovermg, and Flint was in a capacity to U;ansfer an absolute estate. As neither Cxalpin, the King, the commissioners, or Flint, were, by reason of the inadvertent occupation of the owners of No 10, deprived of their possession of the freehold so as to have a right of entry only left, any of them could convey without making entry, only requisite when a disseisin or an ouster of the freehold has been effected. Sad Galpin been disseised, which I was at first uisposed to think was the case, the King would not be m r ossession by office, without seisin by his offi- cer or a scire facias; but the doctrine of disseisin as laid down m adjudged cases, constrains me to hold that Galpin was not disseised, no such intention or object actuating the owner of No. U, in assuming or continuing the occupation of the premises in dispute 3d f • . '1 886 EASTER TEBM, 1 WM. IV., 1881. The possession of the Crown being once established, it appears to me the parties deriving title uiider the Crown are to be regarded as equally seised, for all purposes of tranter, &c. The fact of Howard's possession previous to the release, seems to me to obviate the second objection, for the deed purporting to be a release, might well operate upon such possession so as to vest a fee sim- ple estate in him. (a) Per Curiam.— New trial refused. Phelan v. Phelan. A M re. iB not the first and original process in a real action, as dower. An infant demandant may sue for dower. If an infant be tenant the parol is not allowed to demur. Costs of motion discretionary. DowER.— The demandant issued a ca. re. against the tenant, commencing in the common form— "We command you, that you take, &c., to answer to (de- mandant) widow, who was the wife of W. W. P. now deceased, of a plea that he render to her the said (demandant), her reasonable dower which falleth to her of the freehold which was of the said W. W. P. her late husband, in the township of Southwold, whereof she has nothing, as she says, and whereof she complains that the said (defendant) deforceth her, and have then there this writ, &c." The affidavit of service states that a copy thereof, on which was endorsed a notice of the intent and meaning of such (a) See Doe ▼. Serros, 6 U. C. Q. B., 285 ; Doe v. Rattray, 7 U. C. Q. B., 321 • Doe T. Gander, 1 U. C. Q. B., 3 ; Doe v. Simpson, 6 Old Seriep, 835, 666; Doe t. Nightingale, 6 U. C. Q. B., 618. EASTER lERM, l WM. IV, 1881. 387 process, was personally served on defendant, subse- qoentlj to which a guardian has been appointed for demandant (an mfant.) and steps adopted L the ap- pearance of defendant, also an infant, as in a per- sonal action. There is not fifteen days between the teste md return of the writ. The Altorney-General moved to set aside this writ for irregularity. Baldwin shewed cause. Chief Justice.-Iu one or two actions of dower which have been conducted to a termination in this court, no occasion arose for considering either the legality of the process issued or the regularity of the service, for the tenant appeared and pleaded and the attention of the court has hitherto been called only to the later stages of the proceedings in dower. It has now become necessary, for the decision upon this motion, to determine upon the kind of pro- cess upon which the action is to be commenced in this court, and in what manner it must be served. In England, the action of dower unde nihil haht was commenced originally in the Curia Regis, other- wise more commonly called Aula Regis, which was the supreme court of judicature established by William the Conqueror, and which, before the erec- tion of the Court of Common Pleas, exercised an original jurisdiction in all pleas, civil and criminal. The writ issed out of that court, in the name of the King, but with the teste of the Grand Justiciar. I6 was under the seal of the King, and was obtained f\ 388 EASTER lERM, 1 WM. IV., IWl. from the Chancellor, who was necessarily a member of the Curia Regis. It was an original writ of sum- mons, and was returnable into the Curia Regis, and issued under the great seal, because the King was properly head of that court, and might, and did pre- side in person, and the Chancellor, who had the custody of the great seal, was a member of that great court, of which his office formed a branch. Upon the erection of the Court of Common Pleas, this action of dower properly belonged to it, for it did not fall within any of those of which the King's Bench took cognisance, either originally and directly, or by the fiction upon which so great a part of the jurisdiction of that court in England rests. The jurisdiction of the Court of Common Pleas, however, in cases of dower unde nihil habet, was not, and is not original, but upon an original writ issued out of Chancery, and necessarily made returnable into the Court of Common Pleas, according to the provision in Ms^aa Charta. There can be no doubt that in England such pro- cess as in the present instance has been issued and served in a case of dower, would be void. — 1st. Because it professes to proceed from a court having original jurisdiction, whereas the Common Pleas derives its jurisdiction in dower from a writ out of Chancery. 2nd. Although appearing to be an original writ, it is in form a capias, which is not an original writ, but one adapted to enforce obedience to a real or supposed original writ. A capias is grounded on a contempt of the original process, and this is not one of those actions in which it is used at EASTEH IWIM, 1 WM. IV., 1881. 389 all, the process subsidiary to the original in dower being grmid cape or petit cape-ih^ former, when the tenant has in the first instance ne^^iected to ap- pear—the latter, when he has made default atter his first appearance ; but both these are writs againt the land, not against the person. 3rd. This writ in England would be void, evan though it had been a summons, and not a capias, on account of its depar- ture from the established form, in omitting the direction, '' quod juste et sine diiatione faciat habere It remains to be considered whether, although irregular and illegal in England, it may not be the proper process here. Upon the remedy for the re- covery of dower, our provincial statutes are wholly silent. We are therefore left to enquire, what there IS to affect the question in the constitution of this court, in the law by which it is bound, or in the practice which it has established. The constitution and jurisdiction of this court rests upon the firmest and broadest basis, and appear clearly in the provincial statute 34 Geo. III., ch. 2 sec. 1, by which act it was created. There is no question of jurisdiction of this court upon questions such as that before us. It has power to adopt the "proceedings of the common bench in actions real personal or mixed," and its jurisdiction is original' therefore no writ under the great seal of the province is required— but the writ is to issue from this court, under its seal, and returnable into this court. What^ ever process or proeeedintr thA Co»»''- "f '^- , Pleas in England can adopt in a case of dower which I ' 890 EASTEB TEBM, 1 VkM. IV., 1881. ,^\. has been brought into that court by original writ out of Chancery, the same process and proceeding this court can adopt without any such original writ, the statute giving jurisdiction in all such cases. 60 far is clear; and now as the process n;;ed in tli< case in judgment is not the same as tCat usad in Eugland, the question is, what then l?-: in the law of this province, or the practice of the court, to compel or authorise a different description of process. For the law which governs the right and the principles of the remedy, (our own statutes being, as I have said, wholly silent on the subject,) we must look entirely to England, according to the third sec- tion of our first statute, which provides, "that in all matters of controversy relative to property and civil rights, resort shall be had 10 the laws of England, as the rule for the decision of the same." This legislative adoption of the law of England has no direct application, however, to the form of process in this or other cases. This court has not, under the authority conferred upon it, prescribed any par- ticular form of process, or mode of proceeding in the action of dower, and therefore we must carry the enquiry furi. i; imd aee whether the legislature, by any genor-l riuvirion, or ' 'f court, by any general rule 01 a>^jiem ot practice, has given occasion and authority for issuing such process as this de- mandant has sued out. And first, as to the legis- lature. In the first act already referred to (34 Geo. III., ch. 2) it was provided, (sec. 5,) that the original and first process of this court should be by writ of capias ad respondendum; and in order that the defendant or defendants might be immediately ri;*.' IA8TER Tf»M, 1 WM. IV., mi. m apprised of the cause of coraplaint against him or them, the sa.d writ should state the cause of action and refer to the declaration, which should always be Z'f ^n T'^ "''^ '^' ^"^ '^"^ "t was fur- ther enacted, that no process should issue at the suit of any pla.ntiflF when the defend-nt is not to bo holden to special bad, until the declaration on which it may be founded shall be filed in the office. By 37 Geo. III., ch. 4. the pro. ess of this court was placed on a very different focing, and it was provided that m cases whicn do nor require special bai^ the first and origmal process of tl is court should be by writ of summons, to which the . eclaration was also annexed. This continued to be th. form of nro- cess m aM cases to which, in the nature of things it was applicable, until the 2nd Geo. I\., when the legislature repealed these enactments, anl provided that the original process for compelling he appear^ ance of any defendant or defendants in anvsuiUere- after to be brought in this court, shall b a writ of capta^ ad respondendum, tested in the na le of the Chief Justice or senior Puisne Judge of the said court for the time being, a copy of which p,. ocess, in actions not bailable, shall be personally serve 1 on the defendant or defendants, by the sheriff to wj m the process shall be directed, or his lawful deputy or bailiff, being a literate person; and that upon every copy of such process to be served upon any defen- dant, there shall be written a notice to such cefen- dant, of the intent and meaning of such service &c " This, so far as I am aware, is all the legislature lave done which can affect this question. Then as to the acts of this court. No particular M '-i 8d2 £ft8TEB TIBM, 1 WH. 17., 18S1. direction has ever been given as to the form of pro- cess or proceeding in dower, unde nihil habet, or in real actions of any kind. In regard to its practice generally, it has been declared by rule of court, Hilary Term, 1824, " that the practice, where not otherwise provided for, is to be governed by the established practice of the Court of King's Bench in England." And further, with respect to process, that no less than eight days, inclusive, shall intervene between the teste and return of all mesne process to be sued out in any personal action. Upon this pro- vision of the legislature in statute 2nd Geo. IV., ch. 1, atid upon these rules, the question turns. There hfts been no decision of this court, within my know- ledge, upon the process in dbwer, nor can it be said that there has been a course of practice in dower sttch as could give a sanction to the form of writ used in this case, or to any other form. From the premises I have stated, I come to the opinion, that the process sued out by the demandant is not warranted, and must be set aside. 1st, it has not fifteen days between the teste atid return, which it ought to have clearly, upon the authorities in England. This requisition is not, I think, intei*- ffeted With by the rule of this court which I have quoted abotej it is not dispensed with by our statutes; and, on the other hand, the conformity to the English practice in unprovided cases, to which we are bound by the rule, renders it necessary. 2ncl, it omits the command to the tenant to render to the demandant; and if (which I am not prepared to ad- mit} it were within the competence of the saitor, as our statute prescribes no form of the capias, to devise BASTEE TERM, 1 WM. IV., 1881, 393 r I one suited to his purpose, possessing the essential character of the writ, still he had no power to deviate from the prmcp e of the law, which prescribes that the process shall contain this alternative. Without looking further, therefore, I think this writ must be set aside, and that the demandant may be allowed to sue out a writ according to the form which the court have ordered by rule of this i^n^.-iVide post,) ^ Upon consideration of the general practice in cases of dower, the court do not find that they can properlv lay down any system which shall dispense with the writs of grand and petit cape used in real actions generally, and which form parts of the proceedin-^s in England m the actions of dower nnde nihil hahet which IS in the nature of a writ of right The pro' ceeding in England for the purpose of obtainin*^ dower, is almost obsolete, and the forms seem so little adapted to the present condition of things in this country, that the court would willingly endea- vour to devise a system more simple, by which the same end might be obtained; but upon mature con- sideration, we apprehend that such an improvement must be left to the care of the legislature. If the single object of the grand cape were to bring the tenant into court, we might venture to prescribe for the same purpose a process more in accordance .with modern forms, but under the writ by the laws of England, the land of the tenant making default may be seized into the King's hands, and in consequence of such seizure the demandant obtains a remedy although the tenant wholly makes default. This is a substantial remedy of which she must not be deprived 3 E 394 EA8TEE turn, I WM. IV;, 18M. by «ny new regulation of practice; and it is a. right of that nature that we think we must leave it to be acquired and used as the law gives it, until the legis- lature may think fit to devise another course, since we will not attempt to interfere with the freehold of the subject by any process not expressly sanctioned by the common law or by statute. Since we deem it necessary, in the actual state of the law, to retain the process by ^mwc? and petit cape, it appears on the whole better lo allow the pro- ceeding throughout to preserve the distinctive cha- racter of a real action, and therefore, instead of commencing by a capias, we have preferred the summons, as in England, since it is more in accord- ance with the principles and object of the action; it would be rather incongruous to adopt the proceed- ing by capias, because it accords with our general practice, when the steps which immediately follow must be different from those taken upon a return ot a capias. Confusion will best be avoided by not blending these different systems of proceeding. S9ERW00P, J., concurred as to setting aside the process and service for irregularity. He conceived sufficient cause had been shewn to warrant such a step. Haoaulay, J.— Upon much consideration, I feel bound to hold that the ca. ad re. prescribed by our provincial act being only adapted to, was only intended to apply to, ordinary personal suits, and not to real actions, which should be regulated by the principles which would have governed the court uni- EASTER TEUM, 1 WM. TV., 1881. m , ■•t'4 "h 111 pfoccss in ordinary cases. I conceive the tru. cob- strnction of He provincial sfalutc fo be, .ha "he"" re. IS enjoined in all eases .here the pkrty may le arrested, or where, after a personal service aTap! pcarance or common bail may by the English IZ tiee be entered by the plaintiff for ,he defenCt mn affidavi. of such service, bn. not n sa» of '^ a.ffo,-ent description. The act is directory and alBr! zr:T^T^^ if Tr ;" "^ '"" * ""•»*'. I ti.nt. 12. Real actions have fallen »lo disnse ; and it is diflicnit satisfactorily to tm™ many points respecting them; but with remd to pr^ess generally, the use and object of it sh'onld be ooked 0, and if those ends at^ secured, it can bo of no great moment (unless the court can be held down ;o prescribed forms) what course is adopted. ThoZh IJIT i".r"'°" '' '=°"'""'°d«d. yet in substance and effect the ca. re. is but a summons in non baHa- ble cases ; so that when no incongruity altendS it a process meant to operate exclusively L a summons mig"; assume the shape of a .«;,«,, if absolnteTy im! posed by the statute. But when the course of pro- ceeding in dower is looked to, and the reasons duly weighed and considered, I think the inapplicability o^ a wp,as as the first process, is apparent. The Engish original contains a mandate lor the assign- raent of dower, and a summons to answer in default thereof-yct the one is not bound to tender, nor the other to accept, dover in pais, but in court. The mode of service varie.i, and though it may be per- sonal, still it is not indi.po„.,bi„ Th- -f \ . ■-'-< p-ii-.tui,,. 1 uc Same obser- vation applies to ojecttntnt. I at first thought the fom of the ia. re. might b. preserved with propriety, 396 EASTER TEEM, 1 WM. IV., 1881. and now think that if the court was restricted from proceeding in any suit except by capias, the form of such writ might be moulded as effectually to answer the object as a different process in England. But the more I consider the subject, the more I am con- vinced that the capias was not intended to form ex- clusively the only process, even to the obstruction of the due administration of justice in those cases to which it is not adapted. In real actions, by origmal and grand cape, I think both writs may emanate from and be returnable in this court, which posses- ses original jurisdiction, and consequently may issue oric^inal as w^ll as judicial process : in other words, pro^cess either founded upon a previous record or upon the original jurisdiction of the court, under the statute Of course an original out of this court cannot in all respects be considered a King's origmal writ but it may answer the same object m suits between subject and subject. The process being similar, the service and subsequent proceedings must of course accord with the practice in England in dower unde nihil habet. It follows that the pre- sent process wanting, first, the mandatory clause; 2nd the command to summon the tenant; 3rcl, fifteen days between the teste and return-must be set aside for informality. The mode of service may be also objectionable ; although, without expressing any positive opinion, I am disposed to think that a personal service, on or off the land, will be found sufficient, and that pro- clamations are only requisite when there has been merely a service on the land not personal, and where there is a church either in the township or BASTEB TERM, 1 WM. IV., 1881. 897 county within the meaning of the statute of Elizabeth. Should any suitor be advised to obtain a return of due summons without actual service, as usual in England, and to proceed at once to the grand cape, it will be for the court to decide upon its regularity if excepted to. The grand cape, at all events, forms the second step, subsequent to which, I believe, the way to final judgment may be traced in the practical works on the subject. Per Curiam.—Rvile absolute. Baldwin then prayed that as this was the first instance in the province, and no practice had been hitherto established, that the rule should be made absolute without costs. Parties being also infants. Sed. per Curiam.~An infant defendant is liable to costs as other defendants, and an infant plaintiff is not exempt. Generally in dower—that is in the action, costs are not taxable, but in all actions and cases, costs, on application to the court, are in the discretion of the court. We think they ought to follow here, because the not allowing fifteen days between the teste and return, is a clear irregularity. Our statute law in that respect could not have misled the demandant ; and our rule of court adopting the English practice, plainly made a longer return ne- cessary, (a) (a) Sm Consolidated SUtntes, U. C, cb. 28. 3^8 EASTER TERM, 1 WM. IV., 1881. Prentice v. Hamilton. A continuance roll found in the proper office, and entered and filed there by the proper officer, is a record of this court, although trot bontpitred with the papers filed in the cause. Parol testimony capnot be receiTtd to eoDtradict the roll. Case for slander, in saying to the Reeciiver- G-eneral of Province, "He (the plaintiff) bas^len " three hundred dollars from you." The defendiint pleaded— 1st. The general issue. 2nd. The Statiite of Limitations. Issue joined on both pleas. In order to prove the issuing of the first process within two years from the time the slander was spoken, the plaintiff offered in evidence an examined copy of a continuance roll, entitled of Hilary Term, 10th Geo. IV., and filed and entered and docketed by the clerk of the Crown, setting out a writ of capias, a recital of an alias and pluries, and are turn Of the sheriff of no?i est inv. on the two first writs. A verdict was taken for the plaintiff, subject to aii ob- jection on motion for nonsuit, that the continuance roll in the office was no record, and consequently an examined copy of it could not form legal evi- dence of the facts of issuing the writ of capias or its return. The deputy clerk of the Crown proved that the roll of which a copy was produced had been brought to the office of the clerk of the Crown, by the attorney for the plaintiff. That it was dociceted, numbered, and filed, without comparing it with the original papers filed in the office. That wHts of capia.^, alias, and pluries, had issued in the cause. That the capias had been taken out on the 26th November, 1829, and was made returnable the first day of Hilary Term then next. The witness did not know whether the continuance roll corresponded with the original papers filed in the office or not, EASTUft IB.HM, 1 WM. IV., 1881. 399 and he did not know in what kind of an action the first writ issued. He could not say whether the first writ was taken out in this action or not. although he knew it had been issued, and had been returned i«tp the office. The continuance roll had been docketed by some clerk in the office, and had been filed m the name of the clerk of the Crown, as other rolls had been filed. To prove the slander, the plaintiff called the Re- ceiver-General, who proved that the plaintiff and defendant were clerks in his office at and before the time of the alleged slander stated in the plaintiff's declaration. That to the best of his recollection in the spring of 1828, the defendant told witness the plaintiff had embezzeled £75 of the public money and the witness thought, made use of the following words:— "Mr. Prentice has stolen three hundred dollars from you "—meaning that he had feloniously stolen them. The defendant made a similar accusa- tion to the witness before the time to which the witness alluded in his evidence, and repeated it to the witness after that time. To the best of the wit- ness' knowledge, the plaintiff conducted himself with integrity while he was employed as a clerk in the office of the witness. That from defendant's frequently repeating the charge against the plaintiff, without any variation, and fiom the apparent sin- cerity with which it was advanced, the witness was impre.ssed with the belief that defendant thought it true ; the witness himself did not give credit to the statements of the defendant, but thought the plaintiff might have told the defendant some stories in a jesting way, which had led him into error. The witness, however, did not state that the defendant. 4 400 BA8TBE TERM, 1 WM. IV., 1881. or any other person, alleged that the plaintiff had told the defendant stories of the kind. Previously to the defendant's making the accusation against the plaintiff to the witness, the parties were not on good terms, frequent disputes having occurred between them. On this evidence, which formed the plaintiff 's case, the defendant's counsel contended that this was a privileged communiciition from a clerk to his employer, and that in such a case malice was not to be presumed, but expressly proved. Sherwood, J., who tried the cause, charged the jury that the words proved imputed the crime of felony, and in* the total absence of any circumstances to shew the defendant had reason to believe that money had been stolen at all, and therefore was acting in the discharge of his duty, and for the ex- press purpose of putting their mutual employer on his guard against being defrauded, the law would presume malice. The jury found for the plaintiff. In Michaelmas Term last, the Solicitor-General moved to set aside the verdict, and grant a new trial. Baldmn shewed cause. Sherwood, J,, this day delivered his opinion.- (After stating the case and the evidence.)— The only objection to the validity of the roll is that it was not compared with the original papers in the office, when it was entered and filed : when the examined copy of the roll was obtained the roll itself was in the custody of the proper officer, and in the office where all the rolls and records of this court should be kept. EASTER TERM, 1 WM. IV., 1881. 401 When a roll is found in the proper office the law intends that it has been regularly made up, and parol evidence is not admissible to destroy this presumn. tion~l Bl. Rep. 6G4. If fraud were alleged and proved it would be different. Although the officer did not compare the continuance roll with the original papers in the office at (he time he tiled the roll still he might have previously examined those papers and might have known that they satisfactorily ac^ corded with the roll ; and if the defendant had dis- covered any material discrepancy between the documents, he should have produced a copy of the writ filed in the office, which of itself is a record The defendant wishes this court to presume a«^inst the regularity of the roll, merely from the fact of the officer not having compared it with the oricrinal papers when he,' filed it; but I am inclined to tliink no such presumption is allowable, and that the parol testimony adduced at the trial in support of it ought not to have been received. I am therefore of opinion that the continuance roll being found in the proper office, and being entered and filed there by the proper officer, is a record of this court. The next question to be considered is, whether the examined copy of the continuance roll produced in evidence at the trial was sufficient in law to estab- lish the fact of the issuing and return of a writ of capias in this cause. When a writ has been returned into the office it becomes a record, and a sworn copy of the record is a good testimony, and is usually given in evidence to prove the fact of issuing the writ.— Bull N. P. 234; 1 Phiil. Ev. 370; 1 Stark. Ev. 286— and the return of a sheriff upon a writ 8f im EASTER rtWr, 1 )*M. IT., Ml. which has been duly returned and filed is primA facie evidence of the acts stated in such return, for full faith oupht to be given to the official act of a public officer like a sheriff even when third parties are concerned— 11 East. 297. In order to establish the affirmative of an issue like the second in this case, I believe it is the usual CDurSb.to produce in evidonce a copy of the writ and of the sheriff's returns ; bui it does not thence fol- low that no other course is legal, or that you cannot prove the issuing and return of a writ in any other manner. In 2 M. & S. 565, the plaintiffs proved at the trial an -examined copy of the record against a third person, containing the. judgment, the award of the elegit, mA return of the inquisition; and it was objected that a copy of the elegit and of the inqui- sition should have been produced, but the learned judge overruled the objection, giving the defendant leave to move for a nonsuit if he were wrong. In the succeeding term a motion for that purpose was made, and the counsel in support of it cited Grilb. Ev. 9; Bull. N. P. 104 ; 2 Saund. 69, C. in notes. The court decided that a copy of the judgment was good evidence, and Lord Eiknborough said "the judgment roll imports incontrovertible verity as to all the proceedingE it sets forth, and so much so that a party cannot be admitted to plead that the things which it professes to state are not true." There is a later case still more in point in 3 B. & B. 312-trover brought by the plaintiff against the delendant his assignee in consequence of an order of the Vice* Chancellor to try the validity of a commission of bankruptcy issued against the plaintiff. The plaintiff tASTER TEUM, 1 W5I. I?., 188I. 40S relied on (he Statute of Limitations to shew that there was no legal debt by which the defendant could sus- tarn the commission. At the trial the defendant in order to shew that the debt was not barred by the statute, produced an office copy of a roll in the court of Kmg's Bench containing entry of a writ onapias ahas, and pluries, and brought down to the term next before the trial, and these proceedings the de- fendant insisted took the case out ol the operation of the statute. It appears that the Court of King's Bench had considered the continuances regulaily entered. The counsel for the plaintiff did not ob- ject that the roll was not legal evidence, but insisted that, as the proceedings were stated to be in the Court of King's Bench, they could not have the effect to take the case out of the statute, when the action was brooght in the Common Pleas. The court decided the proceedings sufficient to take the case out of the operation of the statute, and the defendant had judgment. In the last case a copy of the con- tinaance roll was admitted to prove the issuing and return of the writs without any objection, and it strikes me the roll was properly admitted to prove a similar fact in the present case, although the issuing and return of the writ of capias might have been regularly proved in another way. I am, therefore of opmion that the plaintiff should not be nonsuited on the objection taken at the trial. As to the motion for a new trial for misdirection, I told the jury that I thought the case established by the evidence produced could not properly be con- sidered a privileged case, beeaose the words were clearly slanderous, and in my opinion stood un€x- »i 404 EASTER TERM, 1 WM. IV., 1881. plained by any collateral evidence indicative of the intention of the party who uttered them. At the trial the counsel for the defendant insisted that the rule of law which applies to a master when giving the character of a servant must always prevail in favour of a servant when making any communication to the master, and consequently that malice will not be presumed against a servant under any circum- stances whatever, but must be expressly proved in every instance. In support of this position many cases were cited, all of which I have since examined, together with others on the same subject, but I am not yet convinced of the correctness of the doctrine. When a master gives a character of his servant, whether he is requested to do so or not, malice will not be presumed, but must be expressly proved to sustain an action— 1 T. R. 110. The superintending authority of a master and the subordinate situation of a servant necessarily imply a right in the master to express an opinion of the conduct and moral prin- ciples of a servant. The interests of society sanction this right, and the policy of the law supports it, but it seems to me no good arguments can be found in favour of a right in' the servant to impeach the cha- racter of a third person to his master whenever he may feel disposed, without any apparent cause for his assertions. I am inclined to think the communi- cations of a servant to his master stand on the same footing as other communications made from one indi- vidual to anotlier in society, and may be confidential, anJ consequently privileged or not, according to the facts and circumstances which attend them, and the occasion on which they are made. When the words are spoken in the discharge of any duty, the perform- liSTEB I£RM, 1 TO. IT., mi. 4J5 ance of which is required by the ordinary exigencies of society, a hough the party was under uoabole and lega obligation to perform it, the occasion ope ! ales m the nature of evidence, and supplies "ZZ /«« justmcation. When a person is himself inter- ested in any business or transaction, andTsupC of such interest makes a confldential commun cE to a third person, h„a^, ,he law does not imi^v mahce nor docs it when such communication s made by a disinterested person to another who is inter" ed fte s^bfr '", T"™' """ '^""^''^ information on Th.!? ; 1' } '''™P- ^"^^ ^"''"'"^ "■'« principle .^„ M ? r' ^T " '*"" '0 ""^ "ankers charr. the plaintiff, a sohcitor, with misconduct iu the mZ T }. 'ft" was written confidentially, and that the defendant himself was interested in the s^me concern, Lord £&„i<,„„gA nonsuited the paiS and his lordship at the same time referred to a case ^"n »" '''f. "f "'«™ circuit. That was also a c^e of alleged libel contained in a letter from the def^ dant to the Bishop of Durham, who had elioyed the plaintiff as a steward on his estates. I ™ proved that the letter wa., written confldentia Iv te nform the B shop of some supposed malpractic s on the l»rt of his steward, the plaintiff, and that the defendant had acted io«aJi^, „p„„ ^i.-^^ ,^^ J' who presided nonsuited the plaintiff. It does nol appear by the case what was the nature or extenu ae malpractices alluded to in the confldential letter nor does the case slate whether the Bishop had made nfer that he did, because the case states that the letter was written on the subject of supposed mat 406 EASTER TERM, 1 WM. IV., 1881. practices on the part of the plaintiff. Admitting, however, that no enquiry had been previously made by the Bishop, and that he had no suspicion of atiy improper conduct on the part of the plaintiff, before he received the letter from the defendant, still I think that letter must have contained a particular statement of facts and circumstances sufficient of themselves to create some suspicion of malpractices, otherwise the learned judge who presided at the trial would never have declared himself of opinion, as he did, that the defendant had acted bona fide. In 1 C. & P. 279, in a case of slander, when the decla- ration stated a colloquium between the defendant £ind one B. II., in ,which the defendant said of the plain- tiff, *' he is a rogue and a thief, and has robbed me," and as special damage it was said that B. H. being the under sheriff of Middlesex, would have nominated the plaintiff a sheriff's officer, but in consequence of these words he refused to do so, whereby the plain- tiff lost great gains which would have accrued to hirti from such nomination. The defendant pleaded, 1st, the general issue; 2nd, a justification, which stated that the plaintiff had been a servant to the defendant, and received certain sums of money for him, and that he had secreted and embezzled the money. It ap- peared in evidence, that the defendant had been a sheriff's officer for many years, and that the plaintiff, who was his follower for several years, had sent an application to the sheriff's office, to be appointed a sheriff's officer. B. H. the under sheriff saw a person named C. of whom he made enquiries, and afterwards on meeting with the defendant said to him, *' C. tells jp.e that (the plaintiff) who formerly lived with you is a thief, and has robbed you niany times," ontrhich BASTES TERM, 1 WM. IV„ 1881. m the defendant replied, " what C. has told vou is very true." The under sheriff further stated Ihat he hid made these enquiries of the defendant in order to mertam whether the plaintiff was a tit pe^J 1 1 appointed a sheriff's officer. It was proved bT' It kept defendant's moneys., and he said upon beiuir Z cused, <'that he was sorry for it, and musuS out." Under these circumstances. Best., C J 1' of opinion, that the conversation with the under sheriff was confidential, and entitled to just the sam. protection as communications relative to the cha-ao ter of servants. i"e cna»ac- I have looked into the case on which the counsel for he defendant seemed to place great reliance " Si h ^V^'J^'^^^ ^PP^^'-s to be an action of slan- der brought by a tradesman against the defendant for saying of the plaintiff, .' Ho cannot stand it lo.^; he will be a bankrupt soon ;" and the plaintiff lafd m bis declaration by way of special damage, tha bv reason orspeaking those words a certain pe son would not trust h.nj for a horse. This person was the only witness called by the plaintiff, and it an- peared by his testimony that the defendant spoke the words to him, and in consequence of the commu- mcation he did not trust plaintiff with the horse It further appeared that the words were spoken in friendship and confidence to the witness, by wav of warning, and not maliciously. C. J. J'ralt left it to th3 jury to determine whether the defendant spoke the words out of malice to the plaintiff, or whether he spoke them throush friondshin t^ *ho h-^p--' < This case comes within the class of cases which are A'll : c 11 m-i Liii 408 EASTER TERM, 1 WH. IV., 1881. protected by the laws, on the ground of friendship, and the communication of the defendant is similar in principle to those which are made in a confidential and friendly manner to a person for his own advan- tage, for the purpose of reclaiming him from some vicious habits, as by writing to his parent or guardi- an to acquaint him with the fault of his child or ward. In the last case the defendant's remarks were alto- gether prospective, and alluding to a contingency which he thought was probable, and they were de- signed for admonitory suggestions to his friend, and for prevention of a loss of his property. The case is reported in a very concise manner, and it does not appear whether the remarks of the defendant were made in answe^ to enquiries of his friend, or whether Ihey originated altogether with the defendant, but at all events no positive allegation was made, and the entire observations were altogether conjectural. The friend to whom they were made was undoubtedly interested, and he most probably reaped an advan- tage from tlie advice. " And if a communication of this sort," to use the words of Lord Ellenborough, " which was not meant to go beyond those immedi- ately interested in it, were the subject of an action of damages, it would be impossible for the affairs of mankind to be conducted." In the case now before the court there is no evi- dence to shew that the defendant acted in the char- acter of a friend to the Receiver-General, or that the witness was at all interested in the communication which the defendant made to him, because it was not proved that any public money had been embezzled, that any money had been stolen from the witness, or EASTER TERM, i Wil. IV.. 1881. 400 c a fait On th' ''7 ''''''''''' ^ «"«P-- of believed the pli.ff bad ^^^L^t \S " tegnty It does not appear the defe S ~ or from the information of any other nercon n.Yl he bad the slightest gronndsfo sus e^rX' iff of stealing or embezzling money It dopVn.f that the Reeeiver-Gene^al ever' made .n. 'P-^'"' of the defendant respecting ^e'eoXt^Ttr^ir tiff when he was employed in his office, or It the" defendant made any statement to the witness of time, place, or manner of committing the allo^J cnine The defendant merely assertodlhe.S the fact unaccompanied by any concomitant or x planatory circumstances. The evidence does not the alleged offence, and the period when the defend- ant communicated the occurrence to the witness. The evidence therefore which was given at the tnal throws no light on the case, with regard to the motives and intention of the defendant, but the words themselves unexplained by any extrinsic evi- dence clearly import malice. It appeared, indeed, by the evidence of the Receiver-General, that ho was impressed with a belief, that the defendant thought the charges which he brought against the plaintiff were true, and the reason given is, that the charges were frequently repeated without any varia- tion, and they were advanced with apparent sin- cerrty. If the defoodant did really believe when he made the charges that they were substantially true 14 410 BiSTEB TBBU, 1 fW. Tf^ inl- and if he considered that fact material to his defewe, it was incumbent on him to disclose the grounds and reasOTis ot his belief to the jury, by sufficient testi- mony to enable them to determine whether his inten- tion was pure and honest or not. If it were once admitted that the mere circumstance of frequently repeatiiig a criminal charge with apparent sincerity were alone sufficient to remove the legal presump- tion of malice arising from the nature and imiport of the words themselves, then the question of malice would depend on individual perseverance and man- ner of speaking, which it must be obvious to anyone, might be varied by existing circumstances, at t'ae pleasure of the agent, and consequently would form a very unstable basis for the support of any legal principle. Such incidental circumstances may some- times be admitted as auxiliaries to facts of impoi*- tance, but it seems to me they never can be properly substituted for such facts, and were insufficient in this case to prove whether the defendant thought the charges true or false. In my opinion, however, if that fact bad been Kitisfactorily proved by explanatory and indubita- ble evidence of collateral circumstances connected with the transaction itself, it could not have con- stituted a valid defence to this action. There ap- pears to be no occasion to warrant the publication of the words; th« defendant was not acting in the discharge of any duty which the convenience or exigencies of society required him to perform, and I think, if one man of his own accord voluntarily makes use of 'leliberate expressions which directly impute to an innocent person a feloniotts offence, ««T5R TIRM, 1 ms. TV, 1881. 411 mept he do so with a band^^ie intention and for he purpoee of public prosecution, there can be no X. r'Z^T /" '"^^'^^^ °f '^'« -«"d»c^ even a he honestly thinks the charge is true~3 Esp 33 Te policy of the law originating in the pnbhc good tenli^i r'!u^''''' '' ^' brought for any mat ter dBclosed m the common course of criminal oro secufons but the unfortunate parry whr as b'en harassed by a groundless and malicious proceeding mns seek a remedy by writ of conspiracy or by a Id "^ ""'f '^*'^ ''' '^' ^^^'^''^tio; been uaed in that way they must have been considered m^Kions m law as being necessary for the support of public justice, but it does not appear that they were spoken for any such purpose. What has been m^A 1? r ^''^ '^'^ ^y '^' ^^^^'^^^"t ^^^ been Ufcened by his counsel to the ordinary communica- Uon of a servant to his master, and the remarks which I have made on that head might seem to imply an admission of analogy, without further ex- planutioB. I do not consider the two cases alike. The de- fendant in this action was a clerk in one of the public oflteee in this province, and I understand, these sub- ordinate officers are uniformly appointed by order of the person administering the government, and consequently are the servants of the public, and it seems to me they are bound to disclose to the government, without unnecessary delay, all felonies committed by other individuals while actually era- pioyed m the same department. If such information be made, it should always be accompanied by a par- 412 EASTER TERM, 1 WM. IV., 188L ticular statement of oil the facts composing the transaction, and of the manner, time, and occasion in which they came to the knowledge of the informer. Such communications possess a sort of public char- acter, and in that respect essentially differ from those which are ordinarily made by servants to their master in private life. I think the words proved in this case are nndoubtedly slanderous, because they impute to the plaintiff the crime of felony, and staud unexplained by any extrinsic testimony, in my opinion, to establish a primd. fade presumption of the absence of malice. Malice in a common accep- tation means ill-will against another, but in its legal sense it mean^ a wrong act done intentionally, with- out any just cause or excuse. — Cro. Jac. 271. As it has not been shewn the defendant acted in the dis- charge of any public or private duty, I think the presumption of law is against him, and that malice must be inferred, from the injurious nature of the charg3 which he made against the plaintiff, and re- peated so often at different times, and that proof of express malice under such circumstances is not indispensably necessary to sustain this action. — 4 B. &C. 247. The Chief Justice, and Maoaulay, J., expressed no opinion. Bale nisi for new trial discharged. EASIER TERM, 1 WM. IV., 1881. Cooper v. The Canada Company 413 eommon seal are all in EoglnSd ' ""» S*"""-**. directors, and the Ited unnn .r"'' '° '""'^''^ ^^•'™ ^««^' ^^^^ been RALLr /" '^' P''°"'°^^' and last term me iiOlictlor-General moved to set aqMo ♦»,„ • 5«^tt;»« contra. ^® *^^ ''''^'°®- anf^'-r^i!''''' '^°P'°'"°' that without legislative authority they could not order a distringas upon such a service as the present. The cofporS diction, IS like any other corporation of foreign ongm and residence, and beyond the reach o he LTf V^u ''^''' ^^^^ *^^ ««r-i«e was inva id and should therefore be set aside, (a) ' Rule absolute. if, en Ferrie v. Starkweather. wrc?SdSrt^7fhe7^ovtrat*;L%'?'°"'' "^ »be partner. Of •Ut. 60 Geo. m oh 2B «.Ii tt. ' '"'*'.""» endomr, confonuaWy to Ih. U>« Ml not dua to ttoplStS * '"P""' "toaaa to pre.' Ml of exchange, drawn by one Bartlelt, in favour of a third person or order, who endorsed it to the pbintiff. The busmess of the partnership is carried on tt H,^;ara, ander the flrm of Starkwea ther and (•) if CmuiUdalKl Slualaa 0. c, ah. !B, aaa. ll 414 tASTER TERM, 1 W». IT^ iVL Brown, by the defendant. Brown has always re- sided in the state of New York, and the present action was brought against the defendant alone, under the statute 59 Geo. Ill, di. 25. The decla- ration averred Brown's absence from the proviuoe. At the trial, Brown was called as a witness on the part of the defence, and proved that he endorsed th« bill in the name of the firm, and delivered it to the plaintiff; and according to the understanding when he negociated it, it was to be credited by the plain' iff to the firm, as a payment, but plaintiff afterwards objecting to receive it absolutely, the same amount in money was paid by the firm to the plaintiff, and at their request he retained the bill, in order to present it to the drawer, and endeavour to collect it; and if he had collected it, it \v as to have been placed to their credit; but the drawer iailiDg to pay it, the firm finally paid up all their debt to the plaintiff, and he in fact only held this bill as their agent to collect and account for, and not as their endorsee for value. He was objected to for incompetency, but having a release from defendant, discharging him from all liability to costs and con- tribution in this suit as a partner, he was admitted. The jury found for the defendant. In Michaelmas Term last, moved for a new trial. the SoUck^r'-Oetieral The Attorney-General shewed cause. Judgment was given as follows : Chiif JtjsTiCB.— (After stating As c^s.^^=^*ns peculiarity of this case ifl «r«a(ted hj •v provincial »Mi» ■mm 1 tw. iT„ un. «6 •Wote riloded to; and as the qnes.ion now raised W■»" feCSX bond, Ob yton or other written evidence on which srsata^r'^'''^''"'''""'"--^^ Upon the general question, when a witness is held have been Ia.d down, which in themselves .eTelv *«and reasonable, but when we come to apriy them to particular cases, we find often a great S of embarrassment, from the very subtle dis, n tt hat have been drawn, and from the appar n and wmelimes «,taal contradiction in th.'L^t Mr Jwtice £«ilcr. in di^ussing the leading pr^;„ 2«t m '^ 416 BA8TBB TBBM, 1 WM. IV., 1881. no person interested in the question can be a witness, observed, "that there is no rule in more general use, and none that is so little understood."— Bull. N. P. 294. The truth of this remark becomes very ob- vious upon an examination of the cases, for there is perhaps no other matter in law upon which ije opinions of so many and such eminent judges have been held, upon deliberate examination, to be erro- neous. The legislature intended, beyond doubt, to afiford a convenience and advantage to plaintiffs by the statute of 18iil, by allowing a party to sue such part- ners as are resident in the province, omitting any one or more who are absent. The defendant is disabled from pleading the non-joinder of the absent partner in abatement, because he is absent ; but I confess it seems to me that the plaintiff obtains this facility upon no very safe or reisonable terms, if the partner who upon the record is alleged to be absent from the country can make his appearance at the assizes, be received as a witness for his co-partner, and his testimony wholly defeat the plaintiff's action, not merely by shewing that others are liable instead of the defendant, but that the plaintiff has no cause of action at all upon the instrument on which such witness and his co-partner are apparently liable, and upon which his co-partner is sued. I cannot con- ceive that the legislature could ever have contem- plated that such a use could be made of the statute, nor do I think that in law it can be. In the case 3 T. R. 36, in which, by the way, the nisi prius decision of Lord Loughborough upon the EASTER TERM, 1 WM. IV., 1881. 417 oas, ^tt^«-, J says, the rule is-" Is the witness to gam or lose by the event of the caused Try ng the case by this standard, I think Brown was not competent. He surely was not indifferenr o Z event of that cause. If Ferrie had recovered a^ilg Sterkweaher, he would have had judgment S him-that IS against Brown's partner, for £90 and cos ts^ It 18 true that by the second section of tSe statute that judgment, and the execution upon it would have had the same effect only as if he had .Z'ylVf'- ^'^^'^ ^''^'''y'^ this pro. vmce, If he had any, would not be liable to the execu- tionj and a^ to the partnership property, the interest of Starkweather in it is all that couid be sold, and the vendee would become owner of a moiety, as ten- ant m common with Brown, the other partner. But sorely the direct consequence of the recovery in rendering- Starkweather so much the poorer, h^ an unequivocal effect, injurious to the interests of Brown He remains liable to all the partnership debts : and sappose, while he was in the province upon this veiy occasion, he and his partner had been served with a process, at the suit of any creditor of the firm would It make no difference to him that Stark-' weather's having to pay this verdict and costs, would render him so much less able to pay his proportion of^this other debt. Each partner is liable to the whole ; what one partner cannot pay, the other must If he is able ; and each has a plain interest in pro- tecting the property of the other against judgments and executions for aUeged debts of the firm Upon this principle, the case in R. & M. 29, must have been decided. This interest, the release given in as EA8T£K TXRH, 1 WM. IV., 1861. this case does not remove. It only pretends to discharge Brown from all claim of contribjition. Against the general effect of a recovery upon the effects of the partnership it could not indemnify him. See the case in 4 Camp. 27. Upon the same princi- ple that this witness would be admitted, suppose one partner of a firm were generally believed to have died abroad, and a plaintiff proceeds against his partner resident in England,— if the partner suppos- ed to be dead should return before the trial, then he would be a competent witness against the plaintiff, upon the very merits of the cause. The case in 3 T. R. 27, is a very leading case now. and all that is there said tends stroi^ly, in my judg- ment, to shew Brown to be an inadmissible witness. Bowden, the witness there, was liable as an under- writer upon the same policy; he was not a joint in- surer, nor liable to be sued in the same action with Baker. He was released from all obligation to con- tribute to the costs of the action against them, and yet the court, in deciding that he was competent, felt that they were much pressed by the weight of oppo- site authority, and all the judges laid great stress upon the peculiarity of the case, which imposed a necessity for the admission of his testimony, on ac- count of his agency, as broker, in effecting this insur- ance with others before he became a party to the policy as underwriter. But in this case, as well as in all Others, the effect of a direct interest or advan- tage from the event of the suit, is held clearly to dis- qualify. A very remote, or barely possible interest, niii Tirtt- Viut if thfi interest is Dositive. and directly consequential upon the event of the suit, it is not the iASTBR TBRM, 1 WM. IV., IMl. 41 9 amonnt of that interest which the law regards. It is the principle then which excludes. It is true that here the question could only affect the interest of Brown's partner to the extent of only about £100, but the same reasoning that would admit him in this ease would admit him in any other; and suppose the action were between the foreign correspondents of the firm and Starkweather, involving many thousands of pounds, and the whole course perhaps of a very extensive dealing, could it be possible that Brown would be allowed to give evidence of his own con- duct and intentions, and to place his own colouring and construction upon transactions in which he was as deeply interested as Starkweather, and in which he was acting on his own account, with a direct view to his own interest. If it can be regarded as a mat- ter of no interest or advantage to him ihat his part- should escape a liability to a debt of £5 or £10,000, then it must follow that it is of no conse- (luence to a man whether his partner be in affluent circumstances or insolvent. It has often happened in England, that one of several partners has not been included in an action, and if not pleaded in abatonient, the plaintiff may recover against the partners sued, as he may here, under the statute ; but I 'an meet with no case in which the partner so omitted has been received as a witness for the defendant upon the merits of the ac- tion. It was indeed ruled in 1 Esq. case 20, " That when the plaintiff had chosen to proceed against the defendant solely, he should not be allowed at the trial, by suggesting merely the existence oi a part- nership between the defendant and the witness, to 420 EASIER TEBH, 1 WM. IV., 1881. deprive the defendant of his testimony, particularly when the effect of her testimony was to make herself liable." But it is not a bare suggestion in this case; this witness swears himself to be a partner of the defendant, and his whole testimony is formed on his power as a partner. It is by evidence of his own acts and agreements as a partner, sworn to by him- self, that he comes to defeat the plaintiff's cause of action ; and instead of his testimony tending to make himself liable, it tends to remove all liability from his partner and himself. I understand it to be en- deavoured to maintain Brown's testimony simply upon these two propositions — that the record in this action could neither injure nor avail him in any ac- tion that could be sustained against himself by the present plaintiff ; and secondly, that his interest, so far as depends upon liability to contribute to his partner, is removed by the release. But upon these principles, any dormant partner, of whose interest a plaintiff may be utterly ignorant, may be produced as a witness for his co-partners, upon the very merits of the action. I lind no precedent for such a thing ; and it is evident to what abuses it would lead, for defendants in important cases would be careful not to plead non-joinder in abatement, in order to avail themselves of the evidence of their co-partner, if such a release as this could qualify them. The ad- mitting a co-partner to give evidence for the mere purpose of proving who was the proper person to be charged, as in 1 Esp. c. 103, rests on different grounds. I can no where discover that a partner, while he continues such, can be a witness for his co- partner upon the very merits of the point in litiga- tion, and the doubts that were so gravely discussed BASTEE TERM, 1 WM. IV., 1881. 42X m Bent v. Baker, with respect to the underwriter ntt bT I?V ''''r.' ^°^"'°^^^ ^' *^at he ca" not be. If Brown had remainPfl in n,^ • and Starkweather beings^ar, stea?o"pird: ingm abatement, had chosen to defend hiLlfbt ontendmg that the endorsement was forgeil Lnk he certoinly could not call Brown, his partnei m prove It J and yet the verdict in that acCwould neither more or less affect Brown than the vlS m the present case, and he misht hp tli ! Tl contribution as he has been We \\''^'^''^ ^T ferencein principle betlte ^^]^^ dence m proving the endorsement to be fictitious or m proving that it was given under circumstoe XonT "'"'™^ *' ""'''"^ In the ca^e of Burton v. Burchall, cited in Mr Peak's digest of cases on the interest if witnesses U was determined, "that if two persons jontrc;^^^^ tract, and after the death of one an action is bLgl against the survivor, the next of kin of a contracL- TL *l . "' ^ ''^*^''' ^'' ^^' plaintiff, to prove the joint contract, for the same evidence which fixes the debt m the survivor creates a charge a^mst himself for a moiety," and it is added, (note) In this case there was no other witness." I can not but conclude from this case, that upon general principals neither the representative nor next ol km of the deceased joint contractor, would have been admitted to disprove the contract altogether Oiough perhaps the release might have qualified! In the ease m one T. R. 30, what is said by Mr Justice Bulkr, is strongly in point. 4^22 BAttlil TEEM, 1 Wil. IV., 1«W. Independently, however, of the raain objectioili, the particular nature of the evidence which Brown is called upon to give shews him, I think, to be clearly incompetent, upon the authority of 5 T. E. 578. There the endorser of a bill in an action by the endorsee against acceptor, was called by the acceptor to prove, as in this case, that he had merely transferred it to the plaintiff, in order to enable him to get payment from the acceptor, and not to convey any interest to him. He had a release from the defendant. Lord Kenyon rejected him as an inter- ested witness, and the plaintiff recovered a verdict which was afterwards supported in argument in bank. Lord Kenyan says, "The whole question turn oh this, whether the witness' situation would or would not be altered by the event of the verdict in this case. I am still of opinion that it would, for if the plaintiff should succeed, Gregson would be put to much greater difficulties to get back the money, than if the plaintiff should be foiled by means of his testimony." This was after the case of Bent v. Baker, and I do not see that the authority is shaken by the case 2 Ea. 458, when the court noticing this case decided differently, but under different circumstances. Certainly Brown, the witness here, comes to de- feat the action, by proving that notwithstanding the endorsement there is still a right of action and a property in this bill, in his partner and himself ; and if on his testimony the plaintiff fails, what is to hinder an action b*y himself and his partner against the drawer, for the amount ; and ii his partner could alone recover this partnership debt, still his interest ""BTBE THIM, I yns. IT, |8,1. 4M would be equal, siuee it would clearly belong to th. ;^on,and if the plaintiff had then suce ffi^S less the witness could legally recover against himl for money had and received for his mnZeT^ dTu"'' "r """'»'*'™'' becauseTe ^^thttod SL" •'" T""^-'"^ on this grorirfa aatth. decision has ever been doubted; but here f the plaintiff had recovered against the defendaW the note was lost to the partneThip. Brown all could not have sued Ferrie for money hS«! ceived. because his interest was joint with Ster^ weaflier, and Starkweather could iotjl in s7n^ ^^^^use he would be barred byth^recove:;"^ As to the other point, that without this witness there was sufficient evidence to show thaTlS d^ould not recover, I will only say, that it ought I ttmk, to be left to a jury to say whether thef are ilrtlrT' '"' """""'y *» ""»' direct and m^portant evidence received by the court, was that Sheiwood, J._The declaration in this cause specially refers to the statute just mentioned, and charges the defendant as a sole contractor, aid it struck me, on perusing the act, that the bringing of th« action against one of the joint contractors, while tile other resided in a foreign country, had the effect to render the contract several, and to destroy its 424 EASTER TERM, 1 WM. IV., 1881. joint character altogether. If that were the case, I should still be of opinion, that the witness was com- petent, because he would under such circumstances be liable to be sued himself for the amount of the bill, by the plaintiff, whether he succeeded in re- covering a verdict against the defendant in this case or not, and consequently, as the witness would be liable to the plaintiff in either contingency, he would stand indifferent between the parties. When the contract is several, the recovery of a judgment with- out actual satisfaction against one contractor is no bar to an action against the other.—Yel. 67; 6 Co. 45; a. 2 Cro. 74. When a witness is reduced to a state of neutrality by an equipoise of interest the objection to his testimony ceases.— 2 T. E. 267 ; 7 T. E. 480 ; 2 Ea. 458. It was urged by the counsel for plaintiff that a partner not sued could never be a witness, under any circumstances, for his co-partner who is sued, because the whole of the partnership property would be im- mediately liable to be sold for the satisfaction of a judgment recovered against any one of the firm, and therefore the witness would be directly interested in the event of the suit. This objection, I think, is not tenable, for it appears to me the law is clearly the other way, as relates to the joint property of the firm. Upon an execution against one partner on a judgment recovered against him alone, his interest only in the partnership estate can be sold, and the vendee of the sheriff would be tenant in common with the other partner, and hold precisely the same interest which the partner whose share is sold was entitled to, and subject to all the claims existing EASTER TERM, 1 WM. 17, isai. 425 ag»n8t him--.4 V.es. 396; 16 Ves. 557. The vendee of die sheriff would have only the surplus of the partners share, after payment of all just debts to strangers and to the other partners, ^d therefore he might ultimately receive nothing. nf tT^l.^^"" ^"^ "^ jurisdiction over questions of this kind, they are exclusively settled in courts of equity, whose principles of decision are generallv as well defined as legal decisions. I am not therefore of opmion that one partner not sued can never be a witness for his co-partner in a separate action brought on the joint contract. I think a case might hap^n m which he would be a good witness like any other joint contractor not sued, and who has a release I have changed the opinion, however, which I formed at the trial of this cause. A further consideration of the 69 Gee. III., ch. 26, has convinced me thac the act has not the effect to make the joint contract of the two partners a several contract, as I once thought out merely to make the remedy a separate one as regards the partner resident within the province It appears to me now, that the suing of one joint con- tractor under the provincial statute, has the like effect only as the proceeding in England against one joint contractor after the outlawry of the other In such a case, if the joint contractor who is sued'han- pens to die before final judgment, the creditor must proceed against the survivor, though he be outlawed ^d he cannot continue .his action by sci.fa. agp''Mt the personal representative.— 1 M. & S. 242. In this view of the law, the present contract re- mains jomt, as it was first made, and consequently 426 EAPTER TERM, 1 WM. IV., 1881. if the defendant pucceed in recovering a verdict against the plaintiff, on the merits, or in other words, for the reason which he alleges in his defence— "that the bill was endorsed by the defendant and his partner to enable the plaintiff to collect the money for them as their agent, but not for the pur- pose of transferring the property in the bill to the plaintiff"— then Brown, the witness, could not be sued in a separate action, as he could be if the con- tract was several, but he and his partner, the defendant, might bring an action against the first endorser, or the drawer, for the amount of the bill, because the property remains in ihem if the plain- tiff icted only as their agent and did not purchase the bill. Considering the contract therefore as remainin[' joint, notwithstanding the action is brought against one of the joint contractors alone, under the provi- sioL^ of the statute before mentioned, I think Brown was not a competent witness, and that the plaintiff should have a new trial. Macaulay, J.— It is averred on the record, that Brown was a joint partner, and out of the province. No plea in abatement is offered, and under our statute I should think, in sound construction, if the fact of absence is not disputed, the proceeding, when the joint contract appears of record, should be treated as analagous to outlawry in England, where the party outlawed is not a witness. — Hardw. 123, 264 ; Peake Ev. 169-70 ; 1 M. & S. 242. If other- wise, then, though the cases are not uniform, I think, upon general principles of policy and justice, a EASTER TERM, 1 WM. IV., 1881. 427 general partner, defendant, declining to plead in abatement, cannot, because released, be made a wit- ° wf /r ^''. ^rP"'^"''- ^'^ '"t^'-^st is identical with the defendant's generally, and cannot be super- seded by a release in the particular case.-l R & M29;M&M430.2Bing.l33;Stark.E.:i084 If the partnership effects are not liable for the in- dividual debt of a co-partner until the co-partnership accounts are first settled and deducted, and if it was not pretended that this was (if a debt at all) not a partnership, but an individual sole debt of defen- dant, had not Brown an interest, notwithstanding u/ ff'/^' partnership property being liable although he had claims as a partner? Clearly he would also be incompetent on another ground, for if plaintiff failed on the ground of beinff merely the agent of defendant and Brown, though ostensibly a bonajide endorsee, then Brown and de fendant could sue the drawer for the amount of the bi I. This is a direct interest, not affected by anv release.— 5 T. R. 578 ; 1 Esp. 85. Per Curiam.— Rule for new trial absolute, (a) Cornell v. Quick. A writ of replevin with a yw<,WM clause is irreitulftr An „«•»!- i •. altat and pturiet, modified in form so «« fn o^f / .^°. °"8'"al writ tions. should be adopted " ^""^""^ '° **''' local jurlsdic- A writ of replevin was sued out of this court and put m the handsof the sheriff, in the following form :~ "William the Fourth, &c., &c. To the sheriff &e. We command you , that justly, &c, you cause (a) See the Evidence Act, ConsoUdated Statutes U. C, ch. 82" " tSi 1—1 4S8 BABTSR TERM, 1 WM. !▼., IWl. to be replevied to W. Quick his goods, &c., which William Cornell took and unjustly detains, ae- it is said, and afterwards cause him to be justly remedied in this behalf, that we may no longer hear any clamour thereupon for want of justice." Tested in the name of the Chief Justice. And in last term a motion was made to set this writ aside, as not founded on any recognised practice of this court. The question being new, the court took time to consider, and this day gave judgment as fellows : ' JHiEP Justice. — The difficulty is so great in ac- commodating the English process of replevin to the circumstances of this country, that the court must feel every inclination to facilitate suitors in the at- tempt, rather than to throw any unnecessary obstacle in the way. But with every desire to assist the plaintiff's proceeding, it is impossible that the process which has been taken out in this case can, in any view of it, be supported. The writ before us is nothing else than the writ of replevin which by the common law of England issues out of Chancery, directed to the sheriff. It is a vicontiel writ, and is usually termed Ajusticies. The ii|)ject of it is to command the sheriff to cause reple- vin to he made, and to hear the cause, and do justice to the parties. The writ commits the cause wholly to him, and though under a subsequent proceeding, it may be, and usually is, transferred to the King's Bench or Common Pleas, by a writ returnable into ^t court, still ihe office of this writ is to j^ace the EASTER TJERM, 1 WM. IV., 18M. 429 matter who ]y under the cognizance of the sheriff in ^e first instance. It is therefore not returnable into the superior court, and indeed has no return what- ever nor ha.s the sheriff or either of the parties un- der It any day in the superior court. Following the form, under circumstances wholly different, this writ in like manner commands the sheriff to replevy and to remedy the complainant but we cannot give the complainant a remedy here' for our sheriffs have no court in which the proceed- ing can be conducted. The command therefore is nugatory, so far as respects the ulterior proceedings m the cause, and upon such a writ as this all must drop Neither under this writ which is by the com- mon law, nor upon the plaint of the party under the statute of Marlebridge, can any proceedings take place which will end in placing the case within our cognizance. In England, when the action of replevin IS depending in the. inferior court, it comes into the superior court upon the pone in the former case and upon a recordari facias in the latter. A writ out of this court having no day of return, nor commanding any thing to be done or certified, and giving no day to any one to appear, is an anomaly that has nothing to support it in our own or the English practice : it can tend to nothing and must end in nothing In England the writ of replevin, and an alias and pla- nes are usually all issued together from Chancery to the sheriff, the two former have not returns it is true, because on the principle of the proceeding it is contemplated that the sheriff will do as he can do complete and final justice in the matter, and there- fore neither the first writ nor the alias are made re- 4S0 EASTER TERM, 1 WM. IV., 1881. tamable into a s'lperior court, because so far the superior court have nothing to do in the case. From their having no return the complainant is enabled without any repugnancy in practice to take them out together, and indeed Le takes also a pluries at the same moment, and as the pluries is supposed by a fiction to be rendered necessary by the neglect of the sheriff to act upon the two preceding writs, that writ which like the others issues from Chancery is made returnable into ths King's Bench or Common Pleas, and it contairo a clause of " vel causam signi- Jices" commandin ' the sheriff to do as in the others, or to show why he La? not done it, and it gives a day to the sheriff ip the superior court for that purpose. If the sheriff replevies he need not return this writ, but the cause may go on in his county court, but if from any cause he cannot replevy he returns his ex- cuse, and if that excuse be that the cattle or other chatties have been eloigned by the defendant, then a capias in vnthernam issues, which, besides a specific direction to take the defendant's own goods and keep them until he shall allow the distress to be reple- vied, commands him to attach the defendant to answer for the contempt in the court above. All these proceedings are clearly explained in many books, and it is unnecessary to trace the re- medy further in order to determine that the plaintiff here is not in the right track. It is an important general question to ask what he might or should have done ? I do not at present pretend to deter- mine that it is in the power of the party to adopt, upon sufficiently clear authority, any line of proceed- ing that shall place his caase of action under the EASTER TERM, 1 WM. IV., 1881. 431 cognizance of this cour^ or that this court can, with- out the aid of the legislature, remove all ob (I Is to a coavement remedy. An original writ from this cour contaming m the first instance a command to the shenff, as the pluries writ of replevin in England and given him a return as in other process of this court, appears to me at present to be the most pro- per and consistent course. ^^Sherwood. J., concurred in setting aside this Maoaulay, J._The mode of proceeding in this action at co^nmon law was by issuing an original writ called a justiciary writ, directed to the sheriff bv which he was authorised to delivei the goods and to determine the matter in the county court.-Roscoe 623. This IS long obsolete, and the usual way has been to levy a plaint in the county court, which plaint ought regularly to be levied before the goods are replevied, (3 Price, 18,) butwhich may be entered I he court next after granting the precept to replevv (2 te. 139, Co. Lit. M5, b.,) the sheriff'being autlo^ rised by the statute of Marlebridge, (52 Hen III c 21.) to deliver the goods and to hold plea in replevin of any value, as he might at common law on a writ ' of replevin, and upon which it is said he might ver- ba ly command his bailiff to replevy the goods.- KyWb. 192. Replevin by original writ is said to be still frequent in Ireland. The county courts originally had jurisdiction of ■;^' ^' ^"^^^"^ otfcuCcM generally. After the con- quest their power was abridged and they fell from i;*' 432 EASTER TBBM, 1 WM. IV., IMl. their pristine splendour and dignity. The Sovereign Eyre or Supreme Court, which at first possessed an appellate, acquired ultimately an original jurisdiction, and upon the establishment of the Aula Regis the influence of the county courts was still farther less- ened, by the Conqueror ordaining that all causes of action of 40s. and upwards should be determined by the King's writ, at first usually returnable into the Aula Regis, at oth r times returnable into the county courts, when they were called vicontial writs. When afterwards the powers of the Aula Regis were dis- tributed amongst various tribunals, the King's Bench, which name the remnant appear to have assumed, retained amongst other things its jurisdiction in re- plevin. In the peculiar case of replevin, the restricted jurisdiction of the county court was obviated, and the suit might be instituted there by plaint or by original returnable into that court; from thence the proceedings might be removed into the King's Bench or Common Pleas, in the former case by re. fa. lo., in the latter hj pone, both original writs issuing out of Chancery, and being returnable in one of the su- perior courts of law. As we have never had county courts in this province the practice by plaint could not be pursued, but I conceive this court may issue an original writ in replevin, which should so far differ from the form and substance of that used in England, that the sheriff should not be clothed with any justicial power, but should be required to replevy the goods and cite the defendant to appear in this coat t, as in England is observed with respect to the county court. I see no objection to a day being KA8TER TERM, 1 WM. IV., mi. 433 given to the defendant, and when the writ is returned I should think thiii court would have possession of the case precisely as the King's Bench or Common Pleas have upon the return of &pluries original or oUpone, and that ulterior proceedings should cor- respond with theirs. An attention to the nature of the proo,,;;i-g8 by original in England, will illustrate my -leaning. The law and practice ot replevin is well It^- sted a -d laid down in Gilbert on Distresses- Fitz. i< il 68, 2 Sellon's Practice; Roscoe on Real Actions, impey's Sheriff; Selwyn N. P.; Hammond N. P., and other works and cases to which they refer. The original writ is said to be vicontial being returna- ble into the county court, and justicial from the words m the writ, "et mm juste deduci facias,'' which gave the sheriff power to proceed judicially in the matter in his court. Various objections existed to this course of common law. 1st, being by writ, the iippli- cation was required to be to Chancery, which was tedious and dilatory. To remedy this, the statute of Marlebridge was passed, giving the sheriff an imme- diate jurisdiction by plaint. 2nd, if the plaintiff in replevin pleaded to the lord's avowry that the tenant was heir, then the inferior court had no further cog- nizance, because this plea brought the freehold in question. This was remedied by Westminj'tei 2, c. 2, which gave the lord a;wwe to remove the cause out of the county court into the king's courts, a step now usually taken in all cases, either by pone or re. fa. U)., according to the nature of the incipient pro- ceedings. 3rd, that a judgment was often nugatory, the defendant having sold the cattle and become in- sOxVent, and the sheriff being unable to exact any securities except from the plaintiff plegii de prose- O K I 434 EASTER TBBM, 1 WM. IV., 1831. quendo, in this, as iu other cases, a mere matter of form. This was remedied by Westminster 2, c. 2, requiring pledges de retumo habvndo. 4th, that after nonsuit the avowant could not have a return irre- pleviable, but the tenant might repleyy ad infinitum. This was also remedied by the last mentioned statute. The establishment of district offices with us obviates the first objection. The second does not apply to this court, and the third and fourth are susceptible of the redress afforded by the statute of Westminster here as well as in England. The writ sued out in this cause follows strictly the Bjjglish original writ, and in its terms profe^ees to conifer upon the sheriff justicial power. I think a writ in the following form might be adopted :— " William the Fourth, &c. To the sheriff, &c. We coihmand you, that you justly cause to be replryied to A. B. his goods, &c., which 0. D. took and un- justly detains, as it is said, and afterwards take the said C. p. if he shall be found in your district, and him safely keep so that you may have his body (as ip common writs of ca. re.) on the — day of — (the return dsi.y) to answer to the aforesaid A. B. hereof, or aigaify to w the cause why you would not or cQuld uot execute this our command, and have then ther? thi? writ. Witness, &c." A copy of such a writ should be served as in other C»sea, with a notice endorsed of the intent and meaning thereof. My reasons for approving of this co^r8e are threefold. Ist. In England upon the Qflgln^l (justicial) writ the sheriff makes out a pre- cept to deliver the beasts and attach the defei^dant BASTER TERM, 1 WM. IV., 1881. 435 to appear at the next court day. So when the nr«. b^JlffV^.^T P'^i^^t the precept isZtZe fachmlt ' ?r: ''' ^ ''''''''' ^^t, When ah at! tachment is the first prov -ss, which means the attachment of the goods not the body. 2nd. When the original has been executed so that the county court is in possession of the suit a ^ issues for its removal into a superior coul^' C wri commands the sheriff to p„t before the Kin^!; mUce at Westminster, on (the return da^ the plamt before him, and to summon, by good sut moners the defendant, that he be then there To answer the aforesaid plaintiff thereof, &c. The reason of defendant being summoned in this writ IS that being already attached in the court below and having appeared, it is presumed he would come in upon the summons ; but as far as the original with us m^ht be sutetituted for the other process used in England. I would use the word take instead of sum- mons m literal compliance with the provincial statute, as ,t may be done without incongruity, and theTaw "'"'' '"^ ^^^sMml compliance with 3rd. Further, it is laid down, that if the sheriff do notog upon the original writ an alias may issue and^then a piuries returnable in the King's Bench or Common Pleas, and it is sai* in Chancery for reasons given in Glib. 106. In the piuries mm ^ be insmed the ctee -'vel nSis causam ngnt^ees,'^" or signify to us the cause why you 436 EASTER TERM, 1 WM. IV., 1881. would not or could not execute our commands here- tofore directed to you," which may be includfed in the (lUas. These writs give no day to the defendant but to the sheriff to account for his default ; yet, though there is neither summons nor attachment in the phries, the return of it is a good day in court to the parties. There is an attachment, too, in conse- quence of law, the defendant being obliged to appear upon the peril of a mthernam, — Lord Raymond 617. The alias and plurvs may be sued out without the original, or all may be obtained together. It is said by 0. B. Gilbert, 107, but questioned in Ham- mond's N. P. 407, who refers to the year books, that the pluries supersedes the proceedings of the sheriff in his county court,' and that the proceedings are upon the writ and not upon the plaint, as they are when the plea is removed by recordari. That the alias also supersedes his power when it contains the clause of ''velcausam nobis, ^' &c. If the plain- tiff comes into court, et obtulit se, on the day on which the sheriff by alias or pluries is to show cause he shall have an attachment against the defendant, to bring him in to answer, and iiis writ gives them both a day in court. The reason, as mentioned before, is, that replevin is in the nature of a trespass, and in tresspass attachment is the first process, and as well in the county court as in the court above the plaintiff may have attachment in the first process, and if the defendant fail to appear then a capias on the statute 25 Edw. III., ch. 17. As far, therefore, as the first process here may be assimilated to the plurits attachment or capias mentioned, combining as it may the effect of any or all of them, I perceive no inconsistency. It seems, too, that by delivering EASTER lEKM, 1 WM. IT, 1881. 437 fte «&« and phrves to the sheriff in the first instance omitting the original, the plaintiff may at once tote he canse ont of the sheriff's coarf, so that "! reqmred to be more rigidly adhered to, the pTamttf ?/««., similar to those obtained in Chancery and ZZt T r 1° ™ •"'■ ^•"' "PP'"'™"^ i" '"e Kin's Bench, by dehvering only the aXas ^ndpluries aid tZr^r '"'"''"'™' *'"' '"?'■'«■ »-»' ^ee^U efficient process to enforce appearance, much nn- neceyary delay and expense are saved, and obso- ete fictions are dispensed with, by resorting at once to a process under sanction of our proTincial m-t Jated to afford redress with justice and despatch. In failure of a due return an attachment may be had agamst the sheriff, in England, and equally felLeofiT? "'^ i^'^^'^'^^P^^ries may issue in failue of he first, and when so the clause "velcausam s^gntjces" shorn be inserted. Previous to execuN ing the writ of replevin the sheriff should of course teke pledges, de returno habendo, &c., according to Westminster, 13 Edw. I., ch. 2, sec. 3, for the sufficiency of. which he is answerable, 2 Bl. Rep 1220 And m cases of distress of rent the provisions of the statute 11 Geo. II., ch. 19, sec. 23, on this head require special attention. It is not necessary at present to give any opinion as to the ulterior proceedings. If defendant fail to appear, in England, the capias is followed by process 438 EABTBR TERM, 1 WM. IV., 1881. of outlawry; perhaps a like course may be opened here; if not, the court, I should suppose, would pro- tect the plaintiff, so that upon the return of the ca. ad. re. by appearing for the defendant under the pro- vincial statute, or otherwise, the plaintiff would be enabled to go on as effectually as in England. The non-appearance is in the defendant's delay, and the plaintiff has the goods, but diligence on his part is requisite to preserve his bonds and preserve the benefit of his replevin. A day being given in the court the practice on that head in the courts at home when a day is given does not apply, and the plaintiff may be non-suited or non-prossed as in other actions. I see no objection to the writ of withernam, founded upon the clongata returned by the sheriff, and per- haps upon a return of nihil & capias may follow. Nor do I see any objection to the writ de proptietaie pro- banda, if necessary. After the parties are both in court I am not aware that any difficulty presents itself in the further stages more than in England. The proceedings throughout are complex, and the strictest attention is required to avoid irregularities; but with th«it attention I ap- prehend that practitioners will be able to trace their way to judgment whatever shape the pleadings may assume. Per CiiWam.— Rule a^ wlute to set writ aside, (a) (a)S««th«lUt)l«vin Act, Contolidated Btotutw U. C, oh. 29. EASTEH TERM, 1 WM. IV., 1831. WiLUAMS V. Kim, ONE, &C. 439 • t- Assumpsit for money had and received against the defendant^ an attorney of this court. The facts were that one Pmdar confessed a judgment to the prelen plaiLtiff under circumstances which raised a strong presumption of fraud. The present defendant 2 as attorney for the piaintif , entered up judgmenrand issued an execut:or, under which the IhStv'ed about £200, which the attorney received. After w^ds diflferent creditors of Piudar put in their claims and applied to the court for an order to pay Z money into court, to be paid over to the creditors on he ground that the judgment entered up was fraudu" lent and without consideration. This application was refused. The defendant then refused to pay over the money to his client, and this action was brought to recover it. At the trial coram the Chief Justice, the defendant gave in evidence all the facts shewing that the judgment was fraudulent, and the jury were charged to take that evidence into consider- ation, m order that they might find whether there was a fraud or not. The jury found for the defen- dant. And in Easter Term last, Draper moved to set aside this verdict, on the ground that the evidence waa improperly admitted, and that at nisi prim no considerations but the legal rights of the part.e. could be entertained. It was argued in the term following by Draper for the DlamtifP and thp .c«/.-.v^~ rsr-. •> f ., , . ^ i._j _in« iut5 utTst!.cWfvr6TtcTCH tor tne defen- dant. Judgment was deferred till to-day. 4 ' 440 BASTBR TEBM, i WM. 1\ , ii881. mm^ The Chief Justick said, that on lonsideration the court were jmanim^asiy of opiaion i-Aat the ver- dict could not be supported, as it was not competent to the defendant to set up this defence against his own clieui They therefois j^fanted a ne^v trial without costs, but intimated stro^ly thvt the fraudulent conduct of the plaintiff and Pindar with regard to the con- fession, might form the ground of an application to the court itself, to set aside the judgment in favour of the creditors, wb-n the rights of all parties could be investigated and the question fully argued and properly determined -See 8 B. & C. 211 ; 1 Ves. Junr. 161. Rule absolute. The King v. Abner Ives. On putting off the trial of an information for penalties at the instance of the defendant, the court will make pa:'mont of costs a condition in the same way as in civil cases. This was an information for penalties under the imperial statute 6 Geo. IV., c. 114. The defendant, at the Midland District assizes, moved to put off the trial, upon affidavit of the ab- sence of a material witness, and a question was re- served for the opi^ of the court, whether the court could, and i< . »., cou d whether they ought to make the pay : • of the costs of the day a con- dition of gran' .' Uu^ indulgence^ and the court took time to consider ;. question till to-day. BASTER TEEM, 1 WM. IV., 1881. 4111 fh^TL,T^'^\^'^ °^°P^"*^^ *^^t i" this case the defendant may be properly made to pay the costs of the day for being allowed to put off the trial for the absence of a material witness. It is trne ^ a general rale, that the King neither receives 'Z pays costs, and therefore the doubt is raised whether afi m this case, the defendant would not recoive costs m (^se of an acquittal, or the prosecutor not going to trial, he should be made to pay costs for the indulgence granted him. The case in 1 Esp N P 126, ,s an authority to shew, that when a defend-' ant on an indictment for perjury puts off the trial as m this case, he must pay costs.-that miisi be upon the principle that an indulgence is granted to him which ought not to occasion ad- ditional expense. In 3 Burr. 1306 it is stated by Lord Mansfield, that in informations or mis- demeanours, the constant course of the court is that the defendant is entitled to costs if the prosecu' tor gives notice of trial and neither goes to trial nor coantermands it in time, so that it is clear that when the King IS party, costs may be receivable when there has been a default on one side or an indulgence on the other, although upon a conviction or acquittal none would be taxable. That the argument of want of reciprocity is not conclusive appears from the ease in Cowper 367. In qui tarn actions for penal ties, costs are in general not recoverable against the defendant, and yet when such an action is com pounded, with leave of the court, it is made a condi- tion that they shall be paid. In 1 Salk. 193 it jg said, the King pays costs for an amendment, aod this exception to the general rule must arise froin its being aa indulgence. In 3 Price 72, the Crown had 3l 442 EASTER TERM, 1 WM. IV., 1831. obtained a verdict lor penalties, and a now trial was moved for on the ground of no notice of trial to one of the defendants. On the part of the Crown it was answered that the defendants were partners, and that notice to the clerk in court of one was notice to both. The court decided that under the circum- stances each defendant was entitled to a separate notice, and they made the rule absolute as to both defendants. The costs of the trial to abide the event of the verdict. Here is a case of proceeding precisely similar. An information by the Attorney-General for penal- ties under the revenue act, where no costs on ver- dict are taxable against the defendant, but the court in granting a new trial thought it was reasonable, under the circumstances, that the Crown should not bear the expense of the last trial if the prosecution^ should in this end prove to be well founded, and* they therefore annexed a condition that the costs of the trial should be paid to the Crown. In many cases, when under the general principle the King would have no right to costs, the legislature, never- theless, takes care he shall have them, when an in- dulgence is granted as in traverses in claim to goods seized, &c., it is made a condition that the party shall give bond to secure costs. Then here the court in exercising a discretion as to putting ofif a trid, may impose a condition. Executors or administra- tors would pay costs for such an indulgence, an exception from the general principles. In 1 P. Wms. 227, scire facias to repeal a patent on a new +5.jo]^ the defendant had to pay costs, though it is expressly said, that the suit was carried on by ir7 KASTER TERM, 1 W^f. IV.. 18.i vtt'-- v.uv TTVtv •-»• Jtt... i3 , dant and IVidtthew Crooks were merchants in part- EASTER TERM, 1 WM. IV., 1881. 447 orooka & Co. The house of Maitland, Garden and Auldjo. were their correspondents in L^wer Canada and supplied them with merchandize to early on £ business which they regularly continuecf tSl the month of June, 1818, when the iina of Matthew Crooks & Co. dissolved partnership. On he 26?h September 1819, Maitland, Garderi and Auldjo in lormed Matthew Crooks, by letter, that th fhad consented to relieve the defendant from his resDon Co., and at the same time requested Matthew Crooks to give them security on the whole of his fixed pro perty. On the 22nd December, 1820, Maitland" Garden and Auldjo informed the defendant, by letter' hat in case of any of Matthew Crooks' other credit tors getting impatient it would be important that the necessary securities should be completed on the An caster property, and on any other property which he rrught possess. A mortgage was given on part of Matthew Crooks'property, but not accepted by Mait- land, Garden and Auldjo. The last communication by letter from Maitland, Garden and Auldjo on the ■subject of the liability of the defendant to the pav- ment of the debt due them by Matthew Crooks & Co wa^ on the 10th January, 1826, addressed to the defendant, m which they say, "as matters have turned out we must resume our old position in respect to thp, estate of Matthew Crooks & Co., and look to the individual partners," soon after which Maitland Garden and Auldjo failed, and assigned their effects' f«9f' tV }^'J^'''''^'^'- ^^ *^« 31«t March,' 182L Maitland, Garden and Auldjo rendered an account to Matthew Crooks against the firm of I 44S EASTER TERM, 1 WM. IV., 1881. Matthew Crooks & Co., in which the balance due Maitfend, Garden and Auldjo was stated to be £6924 4s. 9d., and Matthew Crooks, in his testimony at the trial, stated he thought that account correct. The defendant's counsel offered at the trial secondary evidence of the contents of a mortgage held by the plaintiffs for this sum, which evidence was rejected by the court for want of proof of notice to produce the original, and which notice defendant's attorney neglected to give, although notice had been given at a former trial. In August, 1826, defendant went to Montreal with his brother Matthew, and at an inter- view with two ot the partners of Maitland, Garden and Auldjo, and* the plaintiffs, for the purpose of a settlement, defendant contended he was discharged by the mortgage and the correspondence with Mait- land, Garden and Auldjo. The plaintiffs insisted the contrary, and threatened to arrest him, and try the question in Lower Canada immediately; upon which, after some discussion, the three notes in question were given. Verdict for the plaintiffs. The Attorney-General moved for a new trial on the following grounds : 1st. The defendant was prevented by the negli- gence of his attorney from making a full defence. 2nd. The notes are void for want of consideration. 3rd. They are usurious on the face of them and therefore void. The Solicitor 'General shewed cause. EASTER TERM, 1 WM. 17., 1881. 449 nlainrr""' ^T^^l^'' '*^"°^ '^' case.)-.The plamtifif s counsel made a preliminary objection to his appUeation. in his argument agains't mSg th ru 6 absolute, and insisted that the negligence or default of the attorney will never be allowed to in duce the court to grant a new trial, and cited the case m 2 T. R. I13.-That case, however, Tes fo seem to warrant the position, for it clearly appears It was owmg to the defendant's own neglect n that case that a full defence was not made : th? negligence of the attorney was therefore not in questron Tn 3 Taunt. 484. the Court of Common Zs^^ a new trial m a cause which was meant to be de- fended, but was called on and tried as an undefended cause, in consequence of the defendant's attorney neglecting to deliver his brief to the counsel em- ployed, and the court ordered the attorney to pav all costs out of his own pocket, as between attorney and Chen . So far as relates to the negligence of an attorney forming a ground for a new trial, it appears to me there is no difference in principle between the present case and that which I have last cited- and If I were convinced the deed of mortgage would form a just and legal defence to any part of the plaintiff s claim, I would grant a new trial upon payment of costs on the authority of that case In order therefore to dispose of the first ground urged by the defendant for a new trial, it will be necessary to ascertam whether the deed of mortgage if pro duced would have formed a good defence' to any part of the plaintiff's claim. The counsel for the defendant alleges that the simple contract debt due Maitland, Garden and Auldjo. by Matthew Groo^° & Co. was extinguished by the mortgage executed 'if 450 EASTEE TERM, 1 WM. IV., 1881. by Matthew Crooks, and delivered to the plaintiffs in this cause, and consequently that there was no consideration for the notes in question. In Bac. Abr. title, Extinguishment D., it is stated, as a general rule of law, on the authority of Roll. Abr. 470, 604 ; 6 Co. 44, and Yel. 38 ; that if a creditor by simple contract accepts an obligation this ex- tinguishes the simple contract debt. The rule of law thus generally laid down, appears to me to be subject to some qualification. If it should be the clear intention and meaning of the parties that the obligation should operate as an additional and col- lateral security only, I think the simple contract debt would not be extinguished as in 3 B. & C. 208. In that case Bayley, J., adverting to the general rule of law with respect to extinguishment, says, "In general, when a simple contract security for a debt is given it is extinguished by a specialty security, if the remedy given by the latter is co-extensive with that which the creditor had upon the former." In the present case, however, I think it unneces- sary to examine whether the remedy given by the mortgage was co-extensive with the remedy on the simple contract debt or not, because it does not ap- pear from the evidence that Maitland, Garden and Auldjo ever accepted the specialty security. On the 26th September, 1820, they expressed their in- tention to do so, but on the lOtb January, 1826, they expressly declare that a change of circum- stances had determined them to adhere to the orig- inal contract, and to retain their remedy against both partners in the firm of Matthew Crooks & Co. The asstnt of one of the partners, in 1824 or 1825, EASTER TERM, 1 WM. IV., 1881. 45^ to the registry Of the mortgage, does not, in my opmion amount to an acceptance of the deed, be- cause It does not appear by the defendant's affidavit fnnl^T ^'^''°^''' '^ ^^"^ P^^'^'^^^ ^ere men- tioned m the deed, or what sum was secured by it Gain ^'f A Tv ^^'^ ''' P^^^^t- M^itlL; Garden and Auldjo requested security on all the real property possessed by Matthew Crooks, but whether the mortgage embraces the whole of his property does not appear, nor does the affidavit show what premises are mentioned in the mortgage or tha any of the parties or their attorney ever pe^ rused the deed. What is the extent of the power of the trustees lam not aware, but I see nothing in this case to warrant the opinion that they were clothed with legal authority ether to accept or reject the mortgage for Maitland, Garden and Auldjo nor does It appear by the laws of Lower Canada, ^here the notes were given, that a specialty security ««•.. merges a simple contract. The case, however, seems .0 me to be relieved from difficulty by the act of the defendant himself. In the month of August, 182C he went to Lower Canada and took the mortgage with him, and he states in his affidavit that he gave It to the trustees of the estate of Maitland, Garden and Auldjo, ihe plaintiffs in this cause. On the 23rd of the same month the defendant, his brother Matthew, George Garden, George Auldjo, and the plaintiffs m this cause, met for the purpose of a settlement ; at the same time the defendant contend- ed that he was wholly discharged from his liabUity to the payment of any part of the debt due by Matthew Crooks & Co. in Mai-*io«/i n^«^ j Auidjo. The pk ntiffs on the other hand insisted on § if 452 EASTER TERM, 1 WM. IV., 1831. his liability at that time, and were desirous of trying the question in the Court of King's Bench for the district of Montreal. They alleged the existence of the simple contract debt, and contended that the de- fendant was still a partner and liable to Maitland, Garden and Auldjo, for the balance due them by Matthew Crooks & Co. The defendant therefore had a fair opportunity of a legal invpstigation of the question, and of ascertaining whether by the laws of Lower Canada he was then liable as a partner on the original contract which had been made in that province. At length all the parties came to an ar- rangement, and the defendant and his former part- ner signed the notes in question. Now, it appears to me this was an explicit admission at that time of his liability as a partner : he certainly knew all the facts ; he had an opportunity of contesting the matter and of obtaining a judgment on the point of law, and he was fully apprised of the determination of the other party to have a judicial decision on the ques- tion. Under these circumstances he elects to de- termine for himself, and admits his liability, and it is quite impossible for me to say he was not right in doing so, according to the laws of the country in which the transaction occurred. The principle established in 5 B. & A. 117, goes to prove, that the defendant ought to be bound by the election which he then made, and, in my opinion, it is too late for him to dispute his liability as a partner, after the settlement which took place in Montreal. The second objection is the want of consideration. The counsel for the defendant contends that no con- sideration whatever moved from the present plain- EASTER TERM, 1 WM. IV., 1881. 463 tiffs to the defendant, because they were total strangers to the original contract between Maitland Garden and Auldjo. and Matthew Crooks & Co That tt Xif T !r/'l'^'* '^"^ ^'^ *^^* --tract That the debt alleged to be so due formed the basis of the contract upon which this action is brought. and was the sole consideration for giving the notes ir^TV ' ^l" ^.'^°''"* of which the defendant re- !f ; ^^.'^^^^J^^t'o- proceeds [upon the maxim that the lega interest in a simple contract resides with the party fromlwhom its consideration moves, and that he alone can support an action at law on the contract This rule is certainly recognised Tn many cases, among which may be ranged the following: Hob 44, pi. 117 8 Mod. 116 ; 1 Vent. 6; Str. 592. But there are other cases which are equally {?ood to prove that the rule does not always prevail Lh as J^\ i ' 1 ^'^''' ^^^' ^ ^' ^ P- 101, note c. I think the rule, at all events as regards negociable securities, is now obsolete, if it were ever in force in such cases. If a note is made payable to A. or order, for the use of B., the legal interest is in A - fiTp'^of ^^A^^^' ^ ^^"*- 20^' Skin. 264; IK. 124— and B. has only an equitable interest In the present case the notes are drawn payable to the plaintiffs as trustees of the late firm of Maitland Uarden and Auldjo, and consequently if they re- ceive the money it will be received in trust for Mait- ■and, Garden and Auldjo, to be paid to them or to thetr creditors, according to the terms of the agree- meat under which the plaintiffs are authorised to act as trustees. Two of the firm of Maitland, Garden and Auldjo were present at thp sfiHiom.»«* i.„i.__- mentjonfjd. and I can draw no other conclusion from I* 464 EASTER TERM, 1 WM. IV., 1881. the testimony than that they assented to it, and to the execution of the securities in consequence of it, and presuming this conclusion to be correct, I think the notes are equally valid as if they were drawn in the names of Maitland, Garden and Auldjo. The notes are payable to their use, with their apparent approbation and consent. It now remains to examine whether a legal consideration was given for the notes. After the admission of the defendant, as before stated, of his liability as a partner to that payment of the debt due by the firm of Matthew Crooks & Co., when he possessed a full knowledge of the facts and might have contested the question at law, I think I am bound to confeider him liable; and then it appears that he and his partner in their settlement in Lower Canada with the plaintiffs as trustees, and two of the partners, agreetl to a composition, and that the trus- tees and the two partners of the firm of Maitland, Garden and Auldjo, agreed to accept the three notes in question for the amount of a composition of 13s. 4d. in the pound, on the original debt due by Mat- thew Crooks & Co. to Maitland, Garden and Auldjo. Matthew Crooks was also indebted to that firm in his individual capacity, and the composition included his debt at 6s. 8d. in the pound, for which the defen- dant agreed to be surety, and accordingly signed all the notes with Matthew Crooks jointly and severally, which secured the payment of the composition money on both demands. The defendant was not originally responsible for any part of the debt due by Matthew Crooks alone. The account against the firm of Mat- thew Crooks & Co. and the one against Matthew Coooks individually were blended together, and set- tled at the same time and under the same agreement. EASTER TERM, 1 WM. IV., 1881. 465 U.m^Cr^^Tr'''''' ^^^ original contract with Ma rZ « 1 ^^' '''' «^«°g»ished, and that Maitland, Garden and Auldjo cannot now sue upon it.~8 Taunt. 277. There was also a further tfme given to the defendant to pay the debt, and this for The counsel for the defendant contended that the tisfact on for a larger sum after the debt is due and there is no doubt, I think, of the correctness of tWs position. To produce that effect something else necessary; the acceptance of the smaller sum itself 1 not enough. In the present case there was an other consideration ; a benefit accrued to Maitland Garden and Auldjo, by the defendant becom'ni se curity for his brother's debt, and, in my opinion the composition of 13s 4d. in the pound would not iav been effected if the defendant had refused his re- ir f ^J'l '^: ^'^* ^"^ ^^ M^«^^^ Crooks alone. I thmk, therefore, that the agreement and composition operated as an accord and satisfaction of the original debts due by Matthew Crooks & Co and Matthew Crooks alone, to Maitland, Garden and Auldjo.— 4 B. & C. 507. The last objection is, that the notes are usurious on the face of them and therefore void. After as lull a consideration as I have been able to give the subject, I incline to think the notes are valid The debt from Matthew Crooks & Co. had been due for hve years or more before the notes w^rp pvo«.,*„^ and it IS a constant practice in England and hereto iU 456 BA8TBR TERM, 1 WM. IV., 1881. give interest in damages on a balance of an account between merchant and merchant, which appears to be due for a length of time.— 12 Ea. 419; 2 B. & P. 337; 3 Camp. 467; 3 Bing. 353. The notes bear interest for only sixteen months before their date, and if the interest for that period had been made a part of the principal and included in the notes, I think they would not have exceeded the measure of damages which a jury would have given, had the question been referred to them. I am not of opinion, therefore, that the notes are tainted with usury. Upon the whole I cannot think the defendant has shewn sufficient* grounds to warrant this court in granting a new trial, and I think the rule should be discharged. The Chief Justice, and Macaulay, J. expressed no opinion. Per Curiam. — Rule discharged. Maitland et al. v. Secord. The court will not interfere to reduce the sum endorsed to levy on afi. fa. on a strict legal ground, unless the defendant has an equitable ground to sustain his application. Qu. Mfhen the defendant gave a bond payable at a distant period, and the plMntiffis continued their dealings with him, lendering accounts which contained debits and credits, and which ac- counts included the sum for which the bond was given, though the last of them was rendered before the time for the payment of the bond had arrived, can the defendant treat the credits contuned in those accounts as payments on the bond ? The facts of this case are detailed in a report of the decision of this court on the points reserved at the trial. {Post, at end of this term.) Ridout ob- tained a rule returnable the first day of this term, to shew cause why the amount endorsed to be levied BABTEB TERM, 1 WM. IV., 1881. 467 «? h! 7; /'^'; "^"•'^^* ^'^^ ^^°ds and tenements of the detendant (£1969 12s. lid.) shonld not be reduced, by deducting from it the amount o? the credits contained in the accounts current and a^so oZL'"' ^^ ^ ^"^^ ^'^ ^^^ consignment of flo Halifax which put together would exceed the sum due the plaintiffs on the bond. Draper shewed cause. The Chief Justice having been retained by the plaintiffs in this cause, when at the bai-, ga^e no opinion. . 6 c uu Sherwood. J.-( After stating the case.)-It seems somewhat extraordinary that the plaintiffs should continue to include in their accounts current, with the defendant alone, the amount of the debt for merly due by the defendant and his partner, because the simple contract made by the defendant and his partner had been wholly extinguished by the bond conformably to the express intention and agreement of the parties. They did so, however, and the ques- tion now is, how shall the payments made by the de- fendant be applied ? Shall they go to satisfy a debt which was due when thej were made, or a debt which was not then due, nor till a considerable time afterwards ? The cases decided in courts of law an- terior to the case in 2 B. & A. 3P, with few ex- ceptions, went to establish the principle, that when there are distinct accounts, and a general payment is made by the debtor without a specific appropriation to a particular account, the creditor may at anv time apply such payiueni to which account hi thinks pro^ 3n ^ WrX 458 EASTER TEEM, 1 WM. IV., 1881. per.— 1.4 East. 239. ' Taunt. 597. A distinction, however, was taken in the case in 2 B. & A. 39, and about two years afterwards in the case in 2 B. & B. 70, to this effect, that when there are distinct c- counts and demands blended together in one account, and they are all treated by 1 ^th parties as forming one account only, and the dt otor makes a general payment on such account, the l;i\ will intend that it was paid and received in satistaction of the first jbt or account in order of tii \ rather than of the later items. The two last cases were decided on the au- thority of a decree in the Court of Chancery, in Clay- toas case, reported in 1 Mer. 530 ; and it appears by that case, as well as the cases at law which shortly followed, that all the debts or demands so blended in one entire account were actually due at the time the general payments were made by the * debtors. These late decisions, like the former, ad- mitted the right of tiie creditor to apply a general payment to the satisfaction of any particular demand, when he possesses several, but decide that he has made his election when he gives credit on an account which ostensibly blends all the accounts existing be- tween the parties into one, and that the giving credit in that way evidently shews an intention of receiving the payment in satisfaction of the early items in the account rather than late items. Sir Wm. Grant said in Clayton's case, " It is the first item on the debit side of the account which is discharged or reduced by the first item on the credit side. The appropria- tion is made by the very act of setting the two items against each other." All the cases clearly shew, that if the debtor make no specific appropriation of the money he pays to a creditor having several distinct EASTER TERM, 1 TVM. IV.. 1831. 459 flphfnn • ■ ^°^*^^^ ^Jie consent of the ueotor IS never dt-psih ;,« • , . aUows an « ,<«, faco right of approS^toa The present case, in my opinion, differs in a m» terial pomt from those already cited ^.il\ I agrees with them in shewing th Jt ttLdU "b°,fnd ^ m one account several distinct demandslTns S ttm ofte ' ""T "' *^ ^^""^ "-• "^ "e ni St Item ot the accounts made out bv the nlainf.-ffo ^ns,sted entirely of the simple contracVdebt dTet the defendant and his former partner, which ha^ been fally satished by the bond which thTdefen^ ant evented, payable in December, 1826 a pttod" c^^Z^rr^r" '"^ P'^y-nt^crediiedr accmmts. It farther proves that the remaining items of tie a«onnt were dne when the defendant made I»yments. I am inclined to think wheneveHi! Plamtiffs give the defendant credit in tS acZnt they, by snch act, appropriated the moneys stcredS ed m d^charge of the earliest item in point of «! which was then due. I am alsoof opinbn" hey tad ZlmlT'^r" P*^"'™'^ in satisVacL of m Item not then due, without the parUeuIar dfrcc- pir tor™!"'*' '"^'"''""' ^'"«'' "0^' »»'%- pear to have been g.ven. The consent of the de- fendant cannot, in my opinion, be inferred from Z 1^^ ^' IMAGE EVALUATION TEST TARGET (MT-3) 11.25 UIM 121 u HA 1.4 6" 1*0 1.6 ^Sciences Corporalion 23 WKT MAIN STMIT WIBSTn,N.Y. I45M (716)S72-4S03 ^^^^ '^^'W^ ^ 460 EASTER TERM, 1 WM. IV., 1881. mere circnmstance of his receiving the accounts without objection to the manner in which they were made out, because both parties must have been fully aware that the first item of the accounts was em- braced in the bond, and consequently, that the time of its payment had been fixed to a period long sub- sequent, by the solemn contract of the parties them- selves, under seal. I think it more consistent with reason and the ordinary transactions of men in busi- ness, to infer that the defendant intended to pay the plaintifiFs that part of their account which he knew was due at that time, and the payment of which the plaintiffs had a l^gal right to enforce, rather than a part, which he well knew wis not due, but had been fully satisfied by a bond upon which the plaintiffs could bring no action for some years. Indeed, con- L'dering the nature of the two debts, I am inclined to think the plaintiffs themselves could not prefer receiving payment of the specialty debt before the simple contract debt, because an executor or admin- istrator is obliged to pay a debt on bond before a simple contract debt, although the latter is due and the debt on specialty is not; and it haabeen adjudged, that if an action be brought against an executor on the simple contract of the testator, he may plead that his testator entered into a bond payable at a future day, and it shall accordingly cover assets to the full amount of the sum payable by the condition. — Leon. 187; Cro. Eliz. 315; 3 Lev. 57; Cro. Car. 362; Ca. temp. Hardw. 228. The defendant had an undoubted right to pay the debt on bond belore it became due, if he thought proper, but there is not express evi- dence that he did, on the contrary it appears that his payments were general, without any order ior a SASTER T«RM, 1 WM. IV., 1881. 4fll specific appropriation at the time of raakine them and consequently that the defendant resigned the nght to the plaintiffs of applying the money, and I think It was not in the power of the defendant at any time afterwards to resume the right.— 2 Ver 607 It was once with him but it passed to the plaintiffs by his implied consent.— Str. 1195. The plaintiffs, therefore, having the exclusive right of appropriation, it remains to determine how they coula legally exercise it, for, in my opinion whatever might have been their real intention ii must now be presumed they applied the payments in discharge of those items in the accounts which the law sanctioned when the credits were actually given According to the rule in Clayton's case they were bound by the act of giving credit. There is one circumstance which throws some light on this part of the subject, and as far as ex post facto acts may be allowed to explain antecedent conduct affords a presumption that the plaintiffs applied the payments in discharge of the debits for merchandize- they made no demand of payment of that part of the' accounts, although it became payable more than a year before the bond was due, but they brought this action on the bond without any delay, thereby shew- ing their own impression of the manner in which the payment of the defendant had been previously ap- plied by themselves. In my view of the present case, the plaintiffs were not warranted in making any other app.opriaUon of the different payments than the satisfaction of the debt due at the time of the ap- piication of each payment, by giving credit for the 462 EASTER tERM, 1 WM. IV., 1881. same in the accounts current. I think there are decisions which establish this proposition, that a cre- ditor having several distinct claims against his debtor, cannot apply a payment made on account generally to the satisfaction of a demand, to which at the time of applying the credit, he has not a clear prima facie right of payment. The first case I will mention is Str. 1195. S. B. was indebted to the plaintiff at the time of his death for coals; he made his wife execu- trix; she continued to deal with the plaintiff and received coals on her own account; then she married the defendant, who also received coals on his own account, and afterwards made several payments on account generally, without making any appropriation to a particular demand. These payments, altogether, were sufficient to discbarge the demand against the executrix, as well as the debt she contracted while a widow. The plaintiff brought his action for the price of the coals delivered to the defc it after he Lad married the widow. The court ho. * that the defen- dant, by virtue of the marriage, was equally liable on the account against his wife before marriage as he was on the account against himself after marriage, and that the plaintiff had a right to apply the money received to the discharge of these two debts, but as the demand against the executrix was not certain, but depended on the question, whether the executrix had assets or not, as well as on the manner in which they should be administered, the court were of opinion the plaintiff could not apply any part of the money received from the defendant in discharge of the latter demands. The case m 2 Star. N. P. 74, will further illustrate the principle. The plaintiffs held bills of exchange which had been accepted by the defendant, and they also were in legal possession of a deed of mortpss gmn by the defendant to a third peln and by hira sold to the pWntilTs, bnt no Z^Zli h^» Kw °""^""^'- '''"' plaintiffs however 1* Ws fsom of'" '"'""^- ^"^ '"''»'''"" P»M^' pia mtiBs a sum of money on account eeneraL ,„^ took a receipt for it in that way, which the Z'„,* appropriated to the satisfaction of the dL':™^; by the mortgage, and brought an action against he defendant on his accepted bills. On the ^r,t th phuntiffs It was contended that the paymen was general one, made ona^nnt ..ot merely of the Mis of e«hange. bnt lilcewise of the mortgage, for wh 'h he had a good claim in equity, and from which it defendant could not extricate himself withltn * ^al payment of the debt due on the mortgage. LTd Elkniorough said, "They might have a claim H proper means were used, by application to a Cou of Equity, bnt the payment was on account generaZ and was applicable to any existing demand, ton- legal demand existed except on the bills. I can„„t go beyond the terms of the receipt, on account there means an accouni which the deleudant was liable to m. but he was liable on the bills of exchange only ■ then there .s a qualification without prejudice to any claim we have upon any securities, but they were not .na situation to make a claim on any oth^^r se^nri- 1/ i :. In the case now before this court, the plaintiffs were not m a situation when the credits were given by them in their accounts current to enforce the payment of any demand, except that for the goods .'ii 464 SA8TEB TIBM. 1 WM. IV.. ISSl- advanced to the deiendant after the execation of the bond, and therefore they had no legal right to apply the moneys received from the defendant to the pay- ment of any other debt. In my opinion, that claim was satisfied by the credits given by the plaintiffs in their accounts current, and the debt which afterwards became due on the bond is still unpaid. The defendant moved the court for a rule nisi calling on the plaintiflf to shew cause why the sum of £1343 5s. 5d. should not be deducted from the amount of the endorsement on the writ of Ji./a. against the lands and tenements of the defendant, and now in the hands of the sheriff, upon the ground that that amount had been paid in discharge of the debt due on the bond. For the reasons already stated, I think the rule must be discharged, on the ground that the plaintiffs had no legal authority to credit the money in discharge of a demand not due when they gave the credit. Maoaulay, J.— This is a motion to reduce the levy under the Ji. fa. against lands issued, in this eausr The leading facts of the case are contained in the report of the decision of the court upon the points reserved at nisi prius, and it is now stated, that in pursuance of the judgment recovered by the plaintiffs upon the decision, they have directed the levy of the whole sum specified in the condition of the bond, £1337, and interest from 4th December, 1822. The cases cited in argument, I think, estab- lished, that when various money demands being due are mingled in one set of accounts, and all payments being made without appropriation by the debtor, are by the creditor, in his discretion, introduced into BASTBB TERM, 1 WM. IV., mi. 435 the general account, such payments both at law and m equity are to be applied in reduction of the earf^st m preference to any subsequent items ,- but " js ound m which the effect of such entries is det^r! mined when the eariiest charges consisted of items n,K,n which a credit was running, not expired whTn the payments on account were introduced, though subsequen Items were at such periods due and Z able AuOionties, however, were produced to shTw ^l^nTlWl ^^'^^.«^) *^^t - creditor (havingi ^ht to elect the application) cannot, contrary to or without the assent, express or implied of the debtor appropriate any advances in reduction of demands Tw Ll *'""'' ^'* °" ^^ ^«»Jd seem to hold that with the assent of the payor the payee m.^hi not apply the credit to one as well as the other The present case differs in some of its features from all that I have seen in the books, inasmuch as in Uiem aU tiie items were due, while here the first Item of the accounts current was not payable bv reason of an extension of credit under the bond but nevertheless, it has been included in account a^ if it formed a subsisting balance due presently, and has been placed at the head of, mingled with and in all respects placed upon the same footing with other demands actually payable ; and the credits have been entered promiscuously iu the general account cur- rent, without specific application, uotwithstandinir such accounts embraced the old balance not payable m common with later charges for subsequent ad- vances upon which the credit had expired, still the defendant did not dissent from the course adopted by t.e plaintiffs ; and previous to the commencement 3 466 EASTER TERM, 1 WM. IV., 1881. of this suit the item in question became payable, and the defendant is now willing and desirous to abide by the rule of construction that would have pre- vailed had it been due from the beginning, an object which the plaintiffs desire to avoid. The bond declared upon merged the simple con- tract debt, yet it is obvious how the plaintiflfe happened to include the same demand in the accounts current. The debt was originally contracted for mercantile advances of goods, moneys, &c., by the plaintiffs' house to defendant and his brother, and was payable and l?ad been bearing interest before and at the time the bond of defendant alone was taken and substituted for it ; and as defendant after assuming this balance continued, on his sole account, a course of dealing with the same house similar to that previously carried on by the partnership, and as by the course of mercantile dealing and of the dealing between these parties, annual rests were made .and the arrears of interest turned into prin- cipal at each yearly rest, it is obvious, that without regard to the bond bearing interest from the 4th December, 1822, merely, the plaintiffs conceived it open to them to continue the old balance in account, charging interest from 31st March, 1822, at which period it was struck, and after the rendition of a series of such accounts, unexcepted to by the defen- dant, I think it may be fairly presumed, that if not expressly agreed to, it was mutually conceded or understood that the order of accounts observed by the plaintiffs was regular, approved of and acquiesced in, so that it would not lie with the plaintiffs at least to dissent from the accounts rendered with a view to EASTER TERM, 1 WM. IV., 188] . 4(57 oaiMce m 1822. Had the plaintiffs been constrained to rely on the accounts rendered, in supjK,rt oHhelr ucuon the defendant could unquestionably avai kZ self of the usual application of the credits but as the accounts, even if affording sufficient evince of an account stated, would not merge the bond, (1 Bur ' silir.'^'^P'^'''' *' P^"'"*^«"« t« «"e upon the specnilty, however the accounts transmitted in or! dinary and due course of dealing would of them- selves have amounted to prima facie proof of an ac ^fl^'-^^^K ''' ' ' ^- ^^'') - -tionTf assumpsit and m absence of the bond. The inde pendent remedy in the plaintiffs' hands obliged the defendant to resort to and introduce the accounts in V dence with a view to establish partial payments. I think It was competent for him to do so, but he shews a the same time, that independent of the twnd a large balance upon subsequent dealings re- mains due the plaintiffs on the same accounts f^er deducting all credits. It has been determined, t^at had the defendant been allowed the benefits of all the payments credited in these accounts he could not sustam the issues created by his pleas, and the plain- tiffs having obtained a judgment for the whole pen- alty, as they legally might do, and issue execution without any further suggestion of breaches, (5 Moore 198 ;. 2 Chit. rep. 697 ; 3 Price 219,) it becomes a question whether it is the rigid duty of the court now to interfere, upon motion to restrain the levy or merely discretionary, according to the equitable cir- cumstances of the case. I have no doubt of the power of the court to interfere even now, and per- haps by additional pleas the defendant might have 468 EASTER TEEM, 1 WM. VT., 1881. entitled himself to a strict legal adjudication on the point, but I incline to believe, that a summary ap- plication 18 to the equity and discretion of the court to be exercised with a view to substantial justice. The plaintiffs by prosecuting the bond seek to take the first item out of the accounts current, and waive all right to compound interest thereon, and I have not discovered that the defendant, either at the trial or on the present occasion, has sought to restore it, so as to be governed in all respects by those accounts ; but on the contrary, it seems to me, the defendant likewise desires to withdraw the first item, in order to ascertain the aptiount at simple interest, and then to restore it at that reduced rate in order to meet the credits of the opposite side. I am much disposed to think the accounts must in all respects subsist entire in their present shape, on the debit side, if the defen- dant desires any advantage in construction from the credits. It would seem just, that if he exercises a right of review in one respect the plaintiffs might claim a similar right in another; that if the defendant is not concluded neither should the plaintiffs be so; and that if the accounts are to be remodelled on the one side, an equal privilege should hold on the other; still as the debit side is merely exceptionable in respect to the mode of reckoning interest, and since a revision in that behalf could not effect the applica- tion of the credits, it is not perfectly dear that the amount of the first item at simple interest might not be ascertained without abstracting it from, or opening the accounts, though at the same time plaintiffs might reasonably be allowed to say, we only made such an application of the credits in consideration of tl e first item being eontittucd from the old account, as due BASTER TERM, 1 WM. IV., IMl. 4^9 ZZ^!^' T^ *' ^ ^^^^^ti\e balance liable to ac- cumulate at compound interest, to which defendant ha hitherto assented, tacitly at least, and if he nX desires abatement with a view to be charged wUh 2 r fT'^lf' "^"'^ ^P««'^^-- the ap^ - sTve^ril r''*'' '"^ '^'" '' W'^ '^'^ delu- sively to the other mercantile transactions embraced m the same set of accounts, a course to whicH^e defendant should not object, as we thereby reducfa stl rr°^ '''^''''' ^'" preference to one at simple interest merely. Upon the most deliberate consideration of the authorities, 1 am led to the cTn nTr/''!'^*''"^' '''' ^^^ ''^^ ^- «ot payabL until after the period of the last account rendered yet the credits in the accounts rendered being all a ong acquiesced in as made, it is not in the election of either party to dissent from them now that it has become due; but that whatever the rule of law on the subject of interest might be. the application of the payments must be governed by the rule fully estebhshed both in law and in equity, viz., that the earliest Items are tc be first paid; and if the present application depemi .. merely upon the construction of the accounts, with a view to the application of the credits even admitting that under the bond the first item did not accrue payable until December 1826 I should be obliged to hold, that the principle to be extracted from Clayton's case, 1 Mer. 672, 623, and ^ 15. & A. 39, must govern. But this is an application to the discretion of the court, to be exercised soundly, and subordinate to the true ends of substantial justice in this particular case. The court cannot fail to see the nature and 470 EASTBR TERM, 1 WH. IV., 1881. origin of this debt, the way it came into the accounts current, and that the ultimate balance has yearly in- creased instead of experiencing diminution by the intermediate payments. Were it apparent that the defendant would have to pay twice over the sum now prayed to be abated in the levy, unless a restraint were imposed upon the plaintiflfs; in other words, if the debit side of the accounts contained no items but the one in controversy, or none unliquidated, then, while it would confirm my ', lew of the rule of appli- cation, it would be manifest injustice if the defendant were not protected to the extent of the credits; but when he himself shews on the face of the same ac- counts that he has contracted a large debt on simple contract, for advances on the bond bearing compound interest, according to mercantile usages, and that after allowing full credit for all payments a balance would still remain due the plaintiffs, independent of the bond, and that applied to the items of simple contract, a debt accumulating at compound interest would be reduced, while by detaching the first item from the accounts, a large sum included therein, by a similar computation is reduced to simple interest, it appears to me that there is no merit in the defen- dant's object, if prejudicial to plaintiflfs, which does not appear. On the contrary, as far as disclosed to the court, it would seem that the course pursued by the plaintiflfs is most beneficial for the defendant, as exonerating him from compound interest on one large sum, and to the full extent of all his payments redu- cing in his favour other demands liable to accumulate by the conversion of arrears of interest into princi- pal, at each annual rest ; and upon the whole, in the exercise of a sound discretion, I think the present EA8TER TERM, 1 WM. IV., 1881. ^*ji rule Should be discharged, and more especially a.s there is not a unison of opinion in the court upon the mam question-a question not free from intricacy and donbt and though liable to affect to a larg T- tent the interests of the plaintiffs, not in a shape to th'l«rr.''''!f^ '"^PP'"^ *"^ higher resort in tne event of an adverse decision. Per Curiam.— Rule discharged. Doe ex. dim. Pell v. Mitchener. •tely. fftU th«t unS« fh. • .^"* •»» deed registered immedi- t^ir^^^dySdXiZt^^r^^'t.t '^'JT^ hi "Mistered 1. notice of this deed wh" T^lhLed ""* "'^'*"""'' ^'"'"8'' «• ''»<' Ejectment for premises in the district of Niagara The facts were-the lessor of the plaintiff claimed under a fegistered title : his father being seised of the premises by such a title, in 1820, conveyed to him. Some years ago the heir at law of the father recovered in ejectment from the lessor of the plain- Uff the premises in question, and afterwards con- veyed the same for a valuable consideration to the landlord of the present defendant, whose title, under such heir at law, was duly registered, before the conveyance from the lessor's father, under which he claims title, was registered. The purchaser had no- tice of the prior deed. At the trial a verdict was l-endered for the lessor of the plaintiff subject to be set aside and a nonsuit entered, if the court above should decide in favour of the defendant, upon points reserved. The case was argued in Hilary Term by Draper (or the plaintiff and the Attarney-General hv 472 EASTER TERM, 1 WM. IV., 1881. the defendant. The decision of the conrt was con- fined to the last point, which was in substance as follows : that the deed from the father to the les- sor of the plaintiff having been registered subsequent to that given by the heir at law, was fraudulent and void, under the Registry Act, 35 Geo. III., ch. 5, sec. 2. The Chief Justice, having been retained for the defence when at the bar, gave no opinion. Sherwood, J. — The provincial statute, 35 Geo. III., enacts in substance, that after the confirmation of land to any person, by grant from the Crown, under the great seal of the province, a memorial of any deed or conveyance of such land may be registered, and that any deed or conveyance made after a me- morial is so registered, of any part of the land con- tained in such registered memorial, shall be ad- judged fraudulent and void against a subsequent purchaser or mortgagee, for valuable consideration, unless a memorial thereof be registered in the man- ner described by the act, before a memorial of the deed or conveyance uader which such subsequent purchaser or mortgagee claims, shall be registered. This act, generally, in its most important provisions, and particularly in the part to which I have alluded, is substantially to the same effect as the registry act in England ; many parts of it indeed are copied ver- batim from the 2d and 3d Anne, ch. 4. Neither the registry acts in England nor the one in this pro- vince make the registry of deeds imperative on the grantee ; he may cause a memorial to be registered or not at his election. No deed unregistered is de- Wm TEIM, 1 WM. IT.. IMl. ^yj elared void by this statute, except against a ,„bse 2^»ent porehaser, for valuable cousidla „ « tud Wntouedm some prior registered memorial • and therefore, in the absence of such subsequent conver oe ra Id. As onr registry act is in strict aual,».l w..h the statutes 2 & 3 Anne, ch. 4 ; 5 l„„e T 1.8 ; 7 Anne, ch. 20, and 8 Geo. I[., 'ch, 6 the de aecmed conclusive. J' Swdet, in i,:. i j franri<,/> ™ . i ^"oa"/, m ills Ivaiiied ti^atise on vendors ano purchasers 887, spcukinir of he reltef to which -he first purchaser wodbf eptitled in a court of equity, in ^se the subseouent he bought, makes the following remarks '■ It will occur to the learued reader. .h!t although the' p,^ purchaser would in a case of Ibis nature be relieved yinst he subsequent sale, (that is in equi v vet the legal estate would be vested in the 6nb.:eqnen purchaser by force of th, statute." In auj.po". o ♦!,„♦ 4- . V °^^' -^"^ ^^^ doctrine at that time rested eotirely on his own opinion of ,he proper construction of the Registry Act. as no de- Q.s.on m a court of law had yet occurred Ibou eight years afterwards the case in 6 B & A 146 was decided in the Court of King's Bench, in'com: plefe accprdance with Mr. Sugrkn's opinion. The court determined, that where there were two deeds executed m the county of Middlesex, affcctinit the same premises, and the one executed la.st was regis ered first, the deed last registered rnust^e considered m a court of law as fraudulent ai^d void I? consequence of 7 Aune, ch. 20. AbboL C J ' 8p t ; 474 EASTER TERM, 1 WM. IV., 1881. said on that occasion, " A court of law is now called upon, for the first time, to put a construction on the words of this statute, by which it is enacted, that every deed or conveyance which shall, after the 29th September, 1709, be made and executed, shall be adjudged fraudulent and void against a subsequent purchaser or mortgagee, for valuable consideration, unless a memorial thereof be registered before the registering of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. Now it is impossible that plainer words could be used, and I think, that sitting in a court of law, we are bound to give leffect to them, and we cannot say that this deed is not fraudulent and void, within the meaning of the act, because possibly it may turn out on examination that the defendant is entitled to some relief in equity." I see no material difference between the 7 Anne, and the Register Act in this province, so far as relates to the question now before the court, and feel compelled to follow the authority which I have just cited, and say, that the deed last registered must be adjudged fraudulent and void, conformably to the enactment of the Register Act of this pro- vince. The statute applies, in my opinion, to every description of deed and conveyance affecting real property, and execuiied after a memorial comprising or containing such property has been registered, because such a proceeding is considered in law a sufficient notice, that all deeds of the same premises executed afterwards must be registered. Under such circumstances, if two deeds are given of the same premises, the last, if registered first, will hold EiSMB TBBM, 1 WM. IV., 1881. 4J5 ftem, although the first may also be registered because the act of registeriug the first decdeomes too late to authentieate the instrument : Ms no more valid as respects the seeond deed than it .t never were registered. The court is not eloLd with authority to modify the striet rule of tw established by the words of the RegLtry Z althojigh the equitable circumstances of the tl might possibly be found, upon an examinatton by an equitable tribunal, to warrant snch a measure to all such instances resort must be had to nourt of equity. I am, therefore, of opinion, the pres^n" verdict must be set aside and a nonsuit entered B *T""ty' i"" "PP^"''' "> ■»« *e ease m 5 B& A. settles the question, and that as a court of law we are here constrained to abide by that de- -ion. There is certainly room for much'a™ m favour of an e::tension of the rule in eq^tyto courteo law; but the tendency of several casfsfe to establish a distinction, and the only adjudged case m a court of law is positive. Until that de- cisran is reveled I conceive the point determined. B follows, that notwithstanding notice of the lessor's ctoim, the registered title of the hmdlord of defen- Amt under the deed of the heir at law of the party under whom the lessor claims, is conclusive a^inst the deed of the latter not registered, until aftefZ of he former even if since duly registered according to the provisions of the statute. It is unnecessary to enter upon the other points reserved, and if the parties interested are not satis- fled mth the present result, I see no alternative, except a special v udiot in which all the questions 476 £ASTER TERM, 1 WM. VT., IStl. may be carried by appeal to the labt resort — the King in Council. Vide.l Ves. 07 ; 1 Eq. Ca. abr. 356 ; 9 Ves. 407; Str. 664 ; 3 Atk. 646 ; 2 Atk. 276 } Amb. 624 ; 3 Ves. 478 ; 19 Ves. 439. Per CwrwOT.— Nonsuit entered, (a) Washburn v. Fothergill. A party bfls th6 name tiin« to plead after partiealars are deltrdlcd on a judge's order, as be had after tbe summons was returnable. JST^w^ moved to set aside the interlocutory judg- ment and assessment of damages in this cause, for irregularity on the following objections: 1st. That the plaintiff sued by attachment of privilege, while the King's Bench Act, 2 Geo. IV , ch. 1. enacted that the original writ should be a ca. re. 2nd. That there was no rule to plead, which he contended was necessary, if the mode of suing by attachment of privilege is sustained. 3rd. That the interlocutory judgment was signed too soon. The judgment had been signed at the opening of the Crown Office, on Mouduy morning. On the Friday previous the de- fendant took out a summons, returnable before a judge in chambers the following day, for particulars of the plaintiff's demand. The same day the plain- tiff's attorney, having been served with the sum- mons, delivered a bill of particulars. On the return of the summons the defendant got a judge's order for pavtieulars, and served the same immediately on the plaintiff s attorney, who, after the closing of the (0) See Lioe v. Meyers, 2 Utd Series, 4i4; Due v. Aiklnkun, 4Uld MrlM 140 ; Neesou v. Eiisiwood, 4 U. C. Q. K. 271 ; Uoe v. Smith, 7 U^C. Q. B. ITS ; and a«« tL« Ut^iinijr Act, CbttsoUdatetl Statutes V. C, eb. 80. BA8TER TERM, 1 WM. IV., 1881, 477 prematarely signed Z he I, ^^ ^T ' '^^ Wnnj.„.„ , J , *°* aetendant liad till Monday to plead, for the plaintiff was not bonnd by the particalara voluntarily delivered on theTf day, (Peake's N. P. C. 229 I tIZ\Z i .% as by delivering othl; pal" a^'t L?!' the Monday at all, he certainly conld not do so tm fte ctostog of the office; but « the "ylcto Jf one of very strict practice, and as an appliSn to set as.de this inleriocntory judgment S, We been made before a judge in chfmbes,bfto 'he .TS T^''"^ *' P'^'°"''^ ■»«I.t stil have a^ne to trral, they refused to give the defendant his cf^ % i*«r Cttm^i.— Bole absolttte. Vide 13 Ea. 608 ; 3 B. & P. 319 • 9 N ?? rai 3 Moore 666 ; 4 T. R. 667 ' ^ ^^^ ' '.■ ■S I #1 *il 478 bastes term, 1 wh. iv., 1881. Ghisholm v. Ward and Terbt. When tha plaintiff, in his afBdavit of debt, iworc that two penona, trading under the name and firm of T. & Co., were indebted to him, and sued ont prooesa against one only, the other being at the same time within the jn- risdiotion of the coort, the arrest was set aside for irregiUarity. The affidavit of debt in this cause, stated that Ward and Terry, trading under the name and firm of Terry & Co., were indebted to the plaintiff in £ , &c., and that plaintiff was apprehensive Ward would leave the province, &c. A ca. re. was issued against Ward alone, who was arrested and held to bail. No proceedings were taken against Terry. Draper moved to set aside these proceedings for irregularity, and to order the bail bond to be deliv- ered up to be cancelled, producing an affidavit that Terry was living within the jurisdiction of the court at the time the suit was commenced, and might have either been served with process or held to bail. Barn. ''0 ; 6 T. R. 688 ; 16 Ea. 159. 68. The Solicitor-General shewed cause. 1 Bing. 48, The court all agreed that the writ was irregular and should be set aside, and Maoaulat, J., added, he considered the process here a part of the suit — a step in the cause ; and that it should therefore con- tain the names of all the defendants. As to costs, Sherwood, J., thought this case stood on the same footing with any other irregularity, and that the rule should be made absolute with costs, but on terms of bringing no action. The Chief Justioe and Maoaulat, J., held, that BAflTIR TEMf, 1 WH. IV., 1881. 479 as this was a summary interference of the court to Per Cmarn.— Bule absolute. See 4 M. & S. 360 ; 1 Ghit. rep. 282 • 1 T R •7«9 lB.&P.481;2B.&P.i09AMa;sh.47r^ Macanadt v. Foster, one, &c pwlMoea. * "•' ""' "^ *'"» court dispeneing with im- S/«;ag«. obtained a rule ,i„ on a former day to A hT^i'l'' P'°<««*»'°8» » "-fe case for irregularity Abil had been filed against the defendant, an attor^ of plea were served at the same time. Eight davs after »ch service the plaintiff signed jndXt ^ Baldwin shewed cause. inlT/^"'"-""^^ ^^' '' '■'Sular, then attorneys instead of hannf? privilege may be more rigidly pro- oeeded agains. than other defendanls. Process must be returnable in term, and no defendant therefore could upon a writ sued out in vacation have iudir- ment signed against him before the next tei^m. Here this bill IS m the place of process, but surely the de- lendant must have a day in bank, without craving an imparlance. The case in Doug. 312, and the note thereto, confirms that view of it, and that you m sAsiEn TOM, 1 WW. ly-. xm- can go no farther m vacation. By tb@ gen^Tftl pra^r tice of tbe court, I conceive nothing cm be done on a bill filed in vacation, till the next term. The error, it seems to me, is in demaoding the plea before the term, the bill being in the nature of process. Shehwooi), J., concurred. Macaulay, J., differed, thinking the rule i)f court included all cases, and applied as well to attorneys a'^ other defendants. Per Curiam.^^B,\x\B absolute without costs ivm V. HiTCiec9$>$t. After » ^enwrn hud be«n deei4rd (gtiaBt tbe pMsUff. lAUh aduittcd th* facts wbioh bad been found by tbe jury on a trial of tbe issues joined. Tht eonrt refused a new trial, wbifsh was moved for on th« alleged groQDd tbkt the verdiot vas against eridenpe. The pleadings iu this cause are stated iu the t^- port of the judgment of the court upon the demurrer. (Ante p. 259.) After that the Solicitor -General moved for a new trial, on the ground that the ver- dict was against the evidence of the fence viewers, appoiuted according to law, who stated the sufilci^ncy of the defendaut's fences; which eyidepce being given by persons appointed by law for the purpose of 49terQiiniDg the sufficiency of the defendant's fences, he epntended was conclusive. ffraper objected, that this very question was e?^ presgjy raised by the plaintiff's replication to the ti^ird f^ld fourth pleas, which had been deterfliiiied against him*. ■A8IBE TBBM. 1 WM, IT.. 18«. 481 into^ J^J'f -Upon looking more particalarly into the pomt, I am confirmed in the opinion thS the prmcple that a demurrer admits alHacts weH pleaded, has such an apDlication in ihi? wnnW ri^r^A^^ ,* appjicaiion m this case as does not deny that tbe pSt ZltyT^l ■ '"*■ ™ ™PP<»-ted by the evidence, LL L it S^TX"?' ^^ ''°'^"' "»' "- -nteLs ftaTh gave sufficient evidence to the juiy that the horses were doing damage at the time he^eized hem L .I.^TnUel'^' ';^'"'"^ wassurrenJedwift ■ „ 1°**' "* ** »•»'""« »f the province re- fendant was not a point questioned iulhe evidenc^ nor B It pretended that upon that point there .S m conflicting evidence, or that the ^T^Zl iX'thr.t"^ "^ "'" ■■ •"" *•> ^'f'-'^" e^»o. ■ ^t'"'"^ ''"" «»'''''' *e weight of evidence in this respect, namely, that they came to the conclusion that his, the defendant's fen^e ren":l*r*'t''V™™ "°'" *"« statute,;^ to entiUe him to distrain cattle damage feasant whereas he conceived he proved by thTblHd most conclusive evidence that the fence was law fill and sufficient, and because the verdicrwa^^n ^ground against evidence, he prays a new trial WiU^out considering at present, whetlTer thisSg of fte jury ,s so well founded that the court I ordinary curcumstances would grant a new triri \t » to be seen whether the defenlt is norp^Sd' by his own admission, from denying this'^Xfac; jury, ^e has pleaded ■ general issue, -ind three O Q 482 EASTER TERM, 1 WM. IV., 1881. special pleas; the plaintiflF has replied specially to all the special pleas ; and in all his replica- tions he avers that the defendant's fences were not of sufficient height, and were ruinous, broken dovm, and in great decay. The defendant takes issue on this averment in his rejoinder to the replication to his first special plea : his fences, he says, were of the proper legal height, and were not ruinous, pros- trate, and in decay, and upon this the parties are at issue. To the third and fourth replications he de- murs generally, and therefore (juoad those pleadings, at all events he admits that his fences were insuffi- cient and ruinous, that is, he admits all the facts stated in those replications demurred to, provided they are well pleaded. The plaintiff has judgment on the demurrer, and therefore the facts are adjudged to be well pleaded ; and it follows, that quoad the third and fourth replications the fact in question is conclusively admitted. Can the defendant now call in question before a jury on the trial of the general issue, and of the issue upon the first special justifi- cation, the very fact that he has admited upon the record by demurrer to the two subsequent replica- tions? I have been perplexed by considering that at nisi prius the ordinary practice undoubtedly is, to try the general issue, and any one or more special issues, quite independently and upon their own merits, as made out in evidence, without regard to any thing the defendant may be said to have admit- ted in any other special plea, whether that plea is followed by an issue of fact or of law upon the re- cord : but I think this does not affect the present RASTER TERM, 1 WM. IV., 1831. 4^3 rnJ^Ii ^T'' '^ ""*■ ^**^ ^^ ^«"W certainly be whe her the demurrer to any other pleading is well or .11 founded ; that waits the judgment of the court and until that judgment is given it cannot be said that the facts in the plea demurred to are well pleaded and consequently, whether the defendant c^n be held to have admitted them or not. Again If the special pleas have not terminated in demurrers' but m issues of tact, it would seem unjust to take such parts of them, merely, as make against the de- fendant, to bo admitted, without admitting also the justification to which they are only introductory hat IS, the motives and purposes for which the de- fendant aUeges he did the act. In either case there seems good reason, whUe all are depending and before the judge at nisi prius, why the jury cannot mix the issues, and take as proof of the one the admissions of the other. The parties are now before us under different circumstances. The case of Broadbent v. Wilks, in Barnes 266, though short is expressly in point, to shew that the defendant can- not now dispute the insufficiency of the fences having demurred to a replication averring that fact' and that demurrer having been determined against him and in favour of the replication. But it is said Barnes is an authority not to be trusted, his notes of points are short and often unsatisfactory, and 1 am aware they have been frequently found' to be incorrect. On the other hand, many decisions of the court will be found to rest mainly upon the authority of some case reported by Barnes, especi- ally on points of practice. He was (though he may 484 KMSTEK TBRM. 1 Wlf. IV., IMl. not have been a profound lawyer) long secondary of the court, and this is precisely one of those points on which an error on his part would be least ex- cusable and least probable ; nor would it be likely, one would think, to stand without correction in the several editions of his book — besides, I find nothing to contradict it in any other case. That same case is reported in Willes, Wilson, and Strange. Wilson and Strange report it chiefly for the other point involved in it, as to the legality of a custom stated in the plead- ings, but they notice also the point of pr9ctice stated by Barnes, unless we are to infer from their silence that the general isstie was not pleaded in the action, as Barnes says it was. We ought not to infer, that because they do not profess to give the pleadings entire, or to recapitulate them — ^but Willes 364 does, and a report of higher authority cannot be, because he delivered, in the name of the court, the very judgment which he reports : he states the pleadings precisely, and fully confirms Barnes. Not guilty was pleaded to the second count, and a special jus- tification to the first, and the issue was found for him ; but inasmuch as the justification to the second count was found to be no justificc t'')r and the de- fendant had in that justification arl:n -t'.J .' trespas. which thus stood not justified, the court gave ju^- ment against him, notwithstanding the judgment which he had obtained upon the issue. This case clearly shews, I think, that when the defendant is r^cucluded upon a point that goes to the whole action rpon any pleading, he cannot treat that as a point Lvili open on which he may have a verdict and jndement on another issue. KtmsR nim, i ««. tv., mi. 435 plamtiff s catUe dcpasluruig in a close, driviw then! to the pound selliDg them and convert og the monev to defendant's use. The evidence we musM^k .nt. on ,h„ appiieation for a new trial, =^°t tir„s pro™ 'the « /° """' "' "' ""^P-'' """J '-dZ' prove the Urst or special count. We could not grant a new trial to allow the pWntiff go Mo econd trespass under the .second count. TbTC by defendant's demurrer to the replication to ^ne of f„; 1. : ^ *"■*' " '''"M^ed ?«<«d that count Lnd^to'-h'^T ™ ** •'""'""^ *« 'i^'Hre mS d^m T ^'^ ""' P"*'^'"'- I have had so much difficulty m coming to a satiafactory opinion on h,s pomt of p.:^i„e, ,b,, jf itwere^thelty mtter to be considered, I should even yet hesto e to look upon the defendant us absolutely conduded f«.m going to trial upon the issues, but fhe truth fe he has a ready gone before ajury upon it, and upon toft Sr '^\'»'«""'»y of "'a-y ''itnesses'^n both sides, the jnry have found against him upon the express fart of the sufficiency o7the fences. Now Hn,?h f ?S '"''*'"* '° '"'™ •'»» questionable oi doublftil, I certainly wonld not direct a new trial in order to try a second lime, as disputed, a fact that oe Has admitied on record. Shbbwood, J., and Maoaulay, J., concurred. Per Curiam.— B.ule discharxred. L 486 EASIER TERM, 1 WM. IV., 1881. VaEEY V. MUIRHEAD. Covenant for title. Breach, want of seisin, and an eviotion by B. alleged in the declaration. Pleat seisin in fee. -fiii/cf, that upon proof of eviction by B. it was incumbent on defendant to prove seisin without proof of title in B. by plaintiff, as though averred in the declaration it was not denied, except indirectly by defendant's plea of seisin, in himself; at all events that defendant going into evidence of his title cured the objection. That a judgment on tci. fa. against B. the heir of the deceased owner of the land, and a fi. fa. thereon awarding the sale of lands, of which the party deceased was seised on a specified day, previous to which he died, could not sustain a purchase, and that a sheriff's deed under such judg- ment anifi.fa. could give no title. Qutere. Whether in order to sell the lands of a deceased debtor against whom judgment was obtained in his life time, the proceedings should, under 6 Geo. II., oh. 7, be against his heir or personal representative. Covenant. The declaration alleged, that by in- dentare the defendant in consideration of £112 10s. did grant, &c., to plaintiff, his heirs and assigns, for ever, lot No. 110, in the town of Niagara, with a covenant that defendant then was the true, lawful, and rightful owner of the said lot, and then was law- fully and rightfully seised in his own right, of a good, sure, perfect, absolute and indefeasible estate of in- heritance, in fee simple, of and in the said land, without any limitation of use or uses, or any other matter or thing to alter, charge, change, incumber or defeat the same. Breach protesting that defend- ant hath not kept, &c., that defendant was not the true, lawful and rightful owner, &c., and was not lawfully or rightfully seised, &c. 2nd count. — Simi- lar to the first down to the breach, that defendant was not lawfully or rightfully seised, &c., by reason whereof plaintiff hath not been able to have and to hold the said premises, to him, his heirs and assigns for ever ; but one J. M. had lawful right and title, and was seised as in fee of the said premises, and did enter into the same and ejected the plaintiff by due process of law, by reason whereof the plaintiff hath not only lost the premises and divers large sums BASTEB TERM. 1 WM. IV.. 1881. 4gy defend the same, to pLJmZ^^Z"'''''^ '" the-T^^^t-ttrfenZtttfrr- "''■ "■ ing the indentnre wi the tte Lti "'. "^ ™''- ^^e trial at the last Niagara as3i.es, ^. of etle^t U IT^:^ •" "'^"'' ««" "» "'^'ion oi ejectment had before that time been bron^ki a^ns h.m by one J. M., who recovered a" dS liim out of possession. He then nrov^^ h,-o a the price of the land and intere'^ t IZ^T^' provements erected by him, and the ^stherd paid on the defence was proved a ^^04 in thf court of Trinitv Term imn .„. J^gment m this .gainst one O.'m':"" C„"; 'SnTant TT margin of the roll there was an X"^adt *,' 8«ned by the clerk of the Crown, shewingtta't fte f!L The w tor'"?" ^^"^ ■■■' «^'*»'=ea« y«. roll, ihe wntofra.ya. contained an aUeealinn „e o M [ f •" i *"' "^■^'■J''- "Spins' the goods of C. M. had .ssued, and been returned in part satisfied m 468 EASTEE TtaiA, 1 IfU. TV., IMl. and that a 'writ of Ji. fa. against the lands of C. M. had issued for the residue of the debt and costs, directed ^o the sheriff of the District of Niagara, who had returned thereon that C. M. had no lands in his district The writ of set. fa. further com- mands the sheriff to make known to J. M., heir at law of C. M., and to the tertenants of the lands whereof 0. M. on the 11th December, 1820, being the day on which judgment was given against him, was seised in fee simple, to shew cause on the first day of Trinity Term then next ensuing, why the residue of the debt and costs recovered against C. M. should not be kade of those lands. At the re- turn of the sci. fa. the heir and tertenants made default, and judgment was given in favour of the present defendant, that he should recover the residue of his debt and costs of the lands owned by C. M. on the 11th December, 1820, upon which a writ of ji.fa. was awarded against the lands and tenements which were of C. M. on the 11th December, 1820, and upon this writ the sheriff sold and conveyed the lands in question to the present defMidant, who was plaintiff in the suit against C M. The defendant sold the lands afterwards to the present plaintiff, and gave him the deed on which the action is brought. It appeared that C. M. died between the 16th and 20th November, 1820. The plaintiff's counsel ob- jected to the validity of the judgment against C. M., urging also that the}?, fa. against the lands was void, as on the 11th December C. M. had no lands. The defendant's counsel contended, that no objection could legally be made at nisiprius to that judgment, and if it were defective at all, advant^e could be taken of it by writ of error only. The judge ruled BUIEB IKBt, 1 mt. 17,, 18S1. tai that the plaintiff, being neither party nor privy tot In Michaelmas Term last, Drape,- obtained « mi^ m» 10 set aside the verdict/on the gronnT^t t^^^^^ parol evidence adduced, to avoid the j-udgme^^^^ not to have been received. ^ ' ^ cause. The Solicitor-General shewed «,nl^r'°* ''^.*';'' ^'^ S'^"" '• *^^ ChIE^ JtTSTIOE some of the proceedings when at the bar. Sherwood, J.-i think the opinion I formed at the tnal. that the plaintiff, being neither partv no pmy, but a stranger to the judgment, might adduce parol evidence to shew it void ab initio, coi-'rect. and 9 M A If ^Pf *'^ ^^ ^^^ P'''"«'Ple established in 2 Mod. 308. It is true, the judgment objected to in that case IS avoided by special plea, but the doctrine advanced by the court is general and applicable to every mode of defence adopted by a stranger to the judgment, Many subsequent cases prove, that a final judgment may be shewn to be void under the plea of the general issue.-T. Ray. 404 ; Cowp. 640 I thought at the trial that the judgment against c" M was void, and I still incline to that opinion, but 1 have not made up my mind fully on that point because it does not appear necessary to do so in the present case. Other obstacles to the defendant obtaming a new trial present themselves, upon which 3 B 490 EASTER TERM, 1 WM. IV., 1881. there is no doubt. I will, therefore, briefly st«te the objections to the judgment, which occurred to me. A judgment is uniformly entered of some term. By intendment of law a judgment entered during term, or during the succeeding vacation, has relation back to the first day of the term. The pre- sent judgment was entered in the vacation after Michaelmas Term, and consequently its legal rela- tion extends back to the first day of Michaelmas Term, but no further.— 1 Wils. 39 : 7 T. R. 21; Willes 427. — The judgment, however, was entered as of a term before Michaelmas Term, and the roll is entitled of frinity Term, and therefore the record itself shews it cannot be a judgment of Mic- haelmas Term. Now, it appears to me, a judgment entered on a cognovit or warrant of attorney, in vacation, after the death of the defendant, cannot be considered as entered of his life time, without the aid of legal intendment already mentioned ; and as the record itself clearly proves tlie judgment to be entered of a term not within the scope or protection of this legal fiction, it necessarily follows, as I am inclined to think, that it is no judgment at all, in the technical sense of the word. I am not aware of any established intendment of law by which it can be supported. It might be urged that this court, upon a proper application, would order the record to be amended, by entering the judgment of Michaelmas Term, but as such a step is never a matter of course, after the term in which the judgment is entered, it must be more problematical after a lapse of ten years, as in this case. I give no opinion, however, on the subject of amendment ; all I wish to intimate is, that you consider it a matter of course for the purpose of supporting the judgment, RASTER TERM, 1 WM. IV., I8«,. ^gj It appeared in evidence on the frial hv ih. ■ . roll and the proceedings thereon ht^ ^, ^^ " /«. for the residue of tho rioi.t i " nt ot >. which i. was\„a«.r;r ; t,rr '°™ '" commanded fo sell the landTwhL r^ '"^ "*•" the nth December 1820 tJ .\. "'"'''' "" sheriff to sell ^tLUZntfytrnTl,:! '-"^ t.on of lands which had no ex," i^ if p T «sua, ^, Of „,, ,„, J ,^,;J7; heS:^rn"d by the special terras of it, and could "eS^ttf lands which had then descended and be om ,1 property of J. M. the heir at law even if f W k ^ me m.ja. I am also mchned to think the nroceerl ngs under the sa. fa. were insufficient t?^'; the «samg of a writ of elegit for the purposed « tendmg a mo.ety of the lands descended to the heTr .w?"'^"" in that action had been inc^Led to collect h,s debt according to the con,.e in E^gtd rf he were desirons of obtaining his end in that w«.' to should in my opinion, fe. sue out a .t/Z SI ,V/'^°" representative, and upon L ~tarn of mhU agamst the executor or adminfatmtor' Us 492 EASTER TEEM, 1 WM. IV., 1881. he might then have recourse against the heir and tertenants, but not before. — Oarth. 107. In this instance the plaintiff did not elect to take his remedy according to the English law, but pro- ceeded, under the statute 5 Geo. II., to sell the land Uself. I have already said I thought the terms of the execution made the writ void, but if it were in other respects unobjectionable, I think it could not be sustained as a legal proceeding under that act. I consider the remedy given by that statute against the lands to be exactly like the remedy given by the laws of this province against the goods. The latter part of the 4th sec. appears to me to contain the en- actment in so many words : the first part makes real estates in the British plantations in America liable to, and chargeable with all just debts, dues and de- mands, of what nature or kind soever, and the latter part expressly enacts, that they shall be subject tu the like remedies, proceedings and process for seiz- ing and selling the same, and in like manner as per- sonal estates are seized and sold for the satisfaction of debts in any of the plantations respectively. When the parties in a suit are changed by the death of a defendant, after the entry of final judgment, be- fore the plaintiff can proceed he must sue out a sci. fa. against the personal representative 6f the defend- ant. If he follows the words of the statute he must also proceed in like manner before he can sell the lands. The writ of./?. /a. against the lands in this suit, issued more than twelve months after the entry of final judgment, and after the death of the defend- ant, so that the case in that part is precisely parallel to the one I have before stated respecting thft goods^ EAam TERM. 1 WM. IV.. 1881. 493 m been pnrsued ; but I am inclined to goZ^Tr tentative altogether, aSw'l'i^" X tne plain and obvious terms of the law would nro m many instanees. Aecording to the law of Eng Jd the tertenants are not to be charged on a iudgCni Wl the he,r .ssummoned, or it be returned Uiat'Ze charged ; for the heir may have a release to plead or otter matterto bar theexec«ti„n.-6 Bac. Ab m dJSr Jr^*^." r'' '"■' "•'^^ "e^ «"> parol may demur tm he is of age, and if the land descend to several females the pirol may demur during the mN nority of any of the co-parceners.-RoI. Abr Ho • Co. Lit. 290 a.; 2 Salk. 698. If any one of he cl' parceners should die, and the share of the deceased d,2f ,!r™' '""'^''' •'■^ "-baraasment and diffleully of the creditor would be greatly increased ; Wd the residence of the heir in a foreign country when h,s lands in this province are entirely uno^^ cupied presents an obstacle altogether insurmonnt- ■ °? "" »"'"■ '"a"'' «he heir himself might be iigured If no »./«. should issue against the personal representative. There are many just and legal pleas which the executor might readily make and effectu- ally sustain for the benedt of the heir, because the facts and proofs would be peculiarly within his own ■M m 494 EASTER TERM, 1 WM. IV., 1881. knowledge and power, but which the heir might not be able to make for want of information, or if he could make them, he might find it extremely difficult, or perhaps altogether impossible to prove. For in- stance, a release to the testator himself, or to the executor ; payment of the judgment *^y the testator or executor ; or that goods and chattels of the testa- tor, in his life time, sufficient to satisfy the judg- ment, had been seized in execution. I am of opinion that all these, and many other similar obstacles to the attainment of justice by cre- ditors as well as debtors, might be surmounted by following the simple and well known remedy against the personal property in all proceedings for the sale of the real estate. The statute, in my opinion, directs this course, and the interests of society seem to require it. I am quite aware the cases I have cited to shew a set. fa. according to the law of England should issue against the personal representative before recourse can be had to the heir and tertenants, may be met by the case in Dyer 208, in support of the contrary opinion. That case, however, was reported more than a century before the one in Carthew ; and the reporter himself seems to have doubted its accuracy, by subjoining a quere at the conclusion. Bacon, Tidd, and Bingham, evidently consider the case obsolete, because they take no notice of it in their treatises on issuing the writ of sci.fa., where the parties are changed by the death of the defendant, of the entry of final judgment. I am inclined upon the whole, to think, that whether the defendant had in this case been desirous of extending one moiety of EASTER TERM. I WM. IV., 1881. 495 e^ sale of the premise. i„ que"tiX ve ten had, and am thereforp of onjn.v ^ ^®®° not to be gmnted ^ "''" " "'^ *"^^ ^"g^^* Maoaulat, J.-The first question relates to ih. Shewing .hat the piaintlHS^i: ' hV"ne: »d covenant «de, been ejected by the MrTiaw of C M. upon the nsual demise, &c. fndepe»de„T of the consideration that tide in T u "Jj-^ are alleged in tLe seeondtu:?; tt ZZ^ ^S\ ''"1 "'^^^^"^ *>^ assertion of r^ defendant on whom lies the affirmation of the issue this objection seems obviated by the ev dpnf ^ tiUe adduced by the defendant giWngte tol " other points, the result of which^mu't eslb S whether the covenant were broken or not It 1' pears the defendant's judgment against CM Z actually entered on the lUh December, 1820 in Michaelmas vacation of that year, a day subsequent to his death. The roll being entitled of TrinUy lerm preceding and no continuance is entered, the first question is to what day such judgment relates the sa:d CM having died in Michaelmas vacal' but previous to the entry, as against purchasers' judgments relate only to the actual entry and dockeL-29 Car. 2. ch. 3, and 3 & 4 W. & M ch 14. By purchasers are meant purchasers indepen- dent of the judgment, not those buying at shedff's sale and claiming under it. But between the parties m I' ',} H if 4§6 BA0TEII TERM, 1 WM. TV., 1881. and their privies, jadgments relate to the first day of term in or of which they are entered, as I think is fully shewn in the following anthcrities : — Willes 136, 427 ; 6 T. R. 368 ; 7 T. R. 20 ; 7 Ea. 297 ; 1 B. & P. 671 ; 5 Bing. 1 ; 3 P. Wms. 399. And a mere irregularity in the proceedings cannot be urged at nisi prius. — 4 Camp. 68 ; 4 Price, 13. 1 there- fore think that the present judgment must b» taken to relate to the first day of Michaelmas Term, at latest, (when C. M. was living,) if not of Trinity Term, in the absence of a continuance which, if important, might now be entered by leave of the court. And as the plaintiff and defendant claim title under the judgment, such relation applies to them equally with C. M. and Lij heirs. The judg- ment subsists as of the first day of the term, and proof of the defendant's death in the ensuing vaca- tion cannot invalidate it. Owing to the relation of the judgment, the Ji. fa. against goods tested in the life time, ss. the last day of Michaelmas Term appears to me to have issued regularly. I, however, do not conceive its regularity important. If it were, I must sustain the writ. Although our provincial statute declares that the same process shall not include lands and goods, and that a writ against the latter shall precede that against the former, still the lan- guage of the legislature being directory and not restrictive, I am by no means inclined to think that the validity of a sale of lands depends upon a com- pliance with the act in this respect. A failure to observe them might induce the court, upon appli- cation, to set aside the execution against the lands previous to a sale, but when acted upon it could not, I apprehend, be treated as void, and BASTER TEEM, 1 WM. IV., 1881. ) first dvy a I think :— Willes a. 297 ; 1 I. And a t be urged 1 there- b bB taken Term, at »f Trinity which, if ve of the ant claim applies to rhe judg. term, and ling vaca- relation of ited in the m appears er, do not ire, I mu6t lal statute >t include the latter [1 the lan- and not think that on a corn- failure to pon appli- »inst the i upon it void, and 497 that no relief could be aflForded to the prejudice of a bonayide purchaser, unless under Sar circumstances, still less could the whole proceed^' be ti^atedasnugatoryatm«>n«.. if therefore Z tamed on all other grounds, I should^ not think the want of a return of nulia bona against the personal reTuT^^r ''J'l^^'' ^- ^' ^^ ^^^'"^^ to the return of the^ writ that went against his chattels tested m his life time, but executed after his death' a valid objection to destroy the defendant's title! The plamt.fr seeks to impugn the legality of the sale on other grounds; and it is objected that he cannot avail himself at nis^ prius of the exceptions urged but as he IS a stranger to the proceedings, and in- competent to impugn them by direct application, I 920 ir^/'Z^^'V'^^' ^^^- ^^^' ^"- Eq. rep. I ' u fo "• ^^ ' ^^'^^- 1^^ 5 2 Saund. 72 ; 4 Campb. 68; 4 Price 13; 1 B. & A. 40; 3 Taunt 543. The main objections are two fold. Jst. That the judgment with a view to lands is revived by sci fa against the heir and tertenants, instead of the personal* representatives, through whom alone, it is contended, the landa could- be sold, however liable to elegit or extent by the course pursued. 2nd. That the judgment on sci. fa. even if sus- tainable, is special, to levy the residue of the debt of the lands of which C. M. was seised on the 11th December, 1820, a day subsequent to his death. The first point involves the important enquiry, by what course of proceeding lands may be sold as 3 s 498 EASTER TERM, 1 WM. IV., 1881. assets for the satisfactioa of debts. But the opinion I have formed supersedes the necessity of pronoun- cing any decision of the general question. I would remark, that the judgment recovered by the defen- dant against C. M., though in debt upon bond, can have no greater or other effect than a judgment on simple contract. It does not appear on the record whetbor the obligation bound the heir or not, and if it did, the security being merged in the judgment would exonerate him ; that is, he would be no fur- ther bound or liable than under a similar recovery in assumpsit So that this case would have pre- sented nothing peculiar, had it been the duty of the court to decide the proper judicial course to be pur- sued in enforcing a sale of the lands of a party dying indebted, against whom a judgment had been obtained in his life time, and remained unsatisfied at his death. The judgment relating to a time antecedent to the death of C. M., I deem it competent to the present defendant to sell the lands of which he was seised on the day of his death, if not, upon the day to which the judgment has relation ; and the set. fa., if in other respects regular and eflfectual, should have fixed the remedy to one of those periods, in- stead of which it recites the judgment as entered on 11th December, 1820, and that C. M. died after such judgment, and then commands the citrtion of the heir and tertenants to shew cause why the sum should not be revived against them, and the plaintiff in that suit have execution for the residue of his debt, to be levied of the lands whereof C. M. on the 11th December, 1820, or ever after, was seised in fee. Upon the return of the service, and the default ?pf the heir, the plaintiff recovered on the sci. fa. >r^ EASTER TERM. 1 WJf. 17., 1831. 499 ne lands of C. M. deceased, on the llth December 1820, the day of the aforesaid jtid^^ment Hil' conforming to the \m]trmnr,t J ° /^^: ^ fi- >• which thfi innl ^ ^' '^'••^^- '«sued under wnicn the lands m question were j, >ld Tf „„« turns out that C. M. was dead before te lUh De any lands on that day or afterwards. The iud^ ment specifies no lands in particular, and the fS do not seem to warrant the sale of ;ny real estt wha tever^PIow. 441. The defendanrthererre would fail on this ground, and indepenientTf the' ulterior considerations. in Jtf Tf T.!"^"^ '^' P'°P"^^^ «' *h« proceed, ings adopted, the court could amend the .«• fa .ludgment and execution, so as to obviate the pecuHar objection, it ,s unnecessary to enquire-re T Pi 2R- e«na.. iDiss. Shebwoo.. J.) R^e absolute, (a) In ke. Sheriff of Newcastle. conve, the lands to th:'j:rc£?aUhrr^^ """"'^^ »^'«St 1831, «,e a.oun. ^lI'^L^l Z;' ^'f. percent, on it, was paid to the depuTsT^riff . frequently acted for the treasurer i/re^S l*' sheriir refused to JZ.y7e tod to 2"*,. ^"'^ on the ground, that the m»e7waa jTr.''T' t.me. Soultm, contended thaTth^l"" ^^ '" ^"^ expired on the lastdavnfPK '"■P"^"'^'" payment to the thl^iff February, and that the -Su tuti':rtrrtf"^'«'^^'»'-'» &^S. 32 , 2 M^& s. 80 teeasurer.-l M. (a) See Mahnna^ IT '^trint- i r>ij -. ^ " ~ ■ 604 EASTER TERM, 1 WM. IV., 1881. -AiX'j^^ Chief Justice.— In the first place, as to the time allowed for redemption, the words of the statute are "'within twelve calendar months from the time of such sale." The sale was on the 1st March, 1830. If no fraction of a day is to be reckoned, as we must begin to compute from, that is after the sale, then the reckoning must be begun on the 2nd March, and the twelve months would not expire before the night of the 1st March, at all events. However, it is not an inflexible rule that the fraction of a day should not be reckoned. For the purposes of justice the court will divide a day or an hour, and it is not shewn that twelve calendar months had expired upon that minute calculation. To save a forfeiture, if in any case, the court would give a party the benefit of every moment of time. But I think this question not worthy of much consideration in the present instance, because certainly the court would not interfere by granting a mandamus, if the question were only, whether the taxes had been paid a day too late to save the forfeiture. The strict letter of the law may leave the sheriff no power to shew indulgence, and the purchaser may be so rigid as to authorise none ; but in that case I think the court would be satisfied to leave all parties to the effect of the ordinary legal remedies. Here another question is raised. The payment it is said was made, not to the treasurer, but to the deputy sheriff, which I look upon as if had been made to the sheriff. It is admitted, that about the time the twelve months expired the treasurer was absent from his district, and that the sheriff and his deputy were in the hubit of receiving taxes from «Mm TESM, 1 mi. n, mi. 555 lot. or some one 7nZtb!u: '""''"''°' »' *« surer of the district fL' T'"^ '° *««'»- such ievyand 20 1 ''-""■"levied, the cost of .haU, o7dTld ezecuTe re"'""'""' '"^ ^"-f nothing whatever in thC.t^fX?'"?- ' '^^ an interposition ^y 'nalZl' ''^.TitiZT purchaser to which pnblic olfiZil ""^ paid ? The sheriff i, »„ 1« t *'"' """""y ^ 1-s a great dX ^ ." ^v^ tt' '^ ''' ^'*'""'' effect. He l»ows the amoIS^Thertl"'" any one else the exuense nf t),. il """."e'ter than can have no doubt Ttn ,f ^' '"■<' ""erefore, Tn h/ ^ *" ""e amount to be receivprt To be sure, a payment to him instead J,Z f^'"'*''- is informal, but whKn ti, J^ , ** ''easurer district anfl „«r treasurer was out of the ie2g w!ft the sLrr "'" '" «■« "« »f land in this case to tot i P'opnetor of the and sav_' tT • * ■"' ""•"«? «» the sheriff tTei27is n„rhrT '" """^'^ "y """'-^h;' it with you Ttisru'an„''T"' "" ""^ ^ '^^^e tyhepUJr:ror::tru:i;[''rr sheriff may Jvit en uLtdT If* "'''' ""^ to receive moneys for hi^ ilT f treasurer court should not';^^ it and ° ^t TZj, ""' '"^ such an inference. It may be^M tl T r"" "" though , he Sheriff. asT^l.t'Trnm^dX^rhta self; and certamly the sheriff, knowing Zhett and reco,vmg the money himself, would act a ^t 5d6 BASTER TERM, 1 WM. IV., 1881. UDJust part if he did not as much as possible en- deavour to prevent the hardship of the proprietor losing his estate by an informality of this kin(J, to which a public officer was party, and of which' he might, in fact, be justly charged with being the principal occasion— for it was his duty, as he took the money under these circumstances, to have paid it immediately to the treasurer. It may be said that from the payment not being made to the trea- surer, the purchaser finding, upon enquiry there at the end of the twelve months, that it stood as unre- deemed, may have felt himself safe in commencing improvements, and that he is injured if he afterwards loses his land, so improved, in consequence of a ^payment having been made, within the period, to an officer who had no right to receive it. That is true ; and there may be cases where the irregularity is so clearly intentional and inexcusable on the one hand, and the hardship so great on the other, that this court might feel inclined to use any power they possess for giving to the purchaser the bene- fit of his legal right. This, however, does not stand before us in any respect as one of those cases, and at all events, for any such damage the party would have a legal remedy, which, in such a case as the present, I think quite sufficient. It is alleged that the payment here was made by a person not privy to the estate, nor having any authority or consent from the proprietor to make the payment, and that it has been made officiously and in order to prevent the purchase at sheriff' 's sale from taking effect— which purpose, it is said, was made for the express purpose of confirming a title in the pur- chaser, which before was equitable, but which was EASTER TERM, lWM.m, 1831. 607 subject to some lerJ donbt or difficultv Tf .!.« the court miffh^ hp o „«^/i ^ , . U ^"^^gnt at first extending afdes'^f"'' *"' '"""e-eed by this, in I do not tok tri; !;!?f ■ '"' ™ """^Meration, weight to it. Th sfngle „Sct"X»r ""^ anthorisine the <,nl. „„ , • "" %isIatore, in moment to the ,Lr "'"" " '^ "^ »<> «"'fe creditor. „f- , '° "'"' W8 it, than it is to the vidnala, wLIoVmotCiftolf "''*"'' *"*• miseries of a aaol Tn .1! . "^ ^Sainst the interferes ™m'^e" S t.f °' T" "''"'"' ""o A» to the generel quwtion-the right to grmt a 608 EASIER TBBM, 1 WM. IV., I88l. mandamus to the sheriflf in a case of this kind. My present inclination is in favour of the right where the refusal of the sheriflf to do his duty is such as to give rise to no question but that he wilfully disregards the provisions of the statute. If such an interposition can be maintained it must be upon the footing that it concerns the court to see that an individual, who can have no other specific relief, is not deprived of i*s legal right from the wilful disobedience of a pub- lic officer to the direot provisions of an act of par- liiment. I think, however, that this general question ahbrds much room for argument, on the ground that the subject matter is a mere private right. Sherwood, J., and Macaulay, J., agreed that this was not a proper case for granting a mandamus. Per Curiam.— 'Mandamus refused. Bergiit v. Whitehead. Rnle for judgment as in case of a nonsuit havinit been disdiatM.! «« a ?SS ""*"**"*"«' •5°'^ payment of costsithe court on fcit flSiSse. '"" ""* P"*^ '^'^' *'"' "'P""' "»'« absolute,"" S first A rule for judgment, as in case of a nonsuit, having been discharged on a peremptory undertaking to go to trial, and payment of costs, during last term, the court were now moved to make the first rule absolute, on an aflSdavit that the costs were unpaid This was opposed on the ground that the costs had not been demanded of the plaintiff. The court said, that it rested with the plaintiff io get the costs taxed, by making an appoiniment, as in EASTER TERM, 1 WM. IV, 1831. g^g casts Of new trials, 2 Arch nr 29« nn^ a another coun^rrthatLnft'"'?'"^ "'^'"^I '•» costs, went to trial w.n.™,t ■ . ° Payment of The ;)nrt set aU a^H?, f^'^^*''"' '^ "erdict. the costs wet iTf;,?''/''''^ " ^'^ "«" »■"««» should be reS'''"''''.'^y^'J»'3g'»ent of nonsuit judgment (on ac^unToftrr*"^ ""^ ""<= f"' flrsfinstance- toUs 1 . '"''^ *"'"'<' » «>« fa in not gdn. to trM ITT"" ''^''' ""o •■»""« undertaktog!;?and ie'eourTt^ '" 'ke peremptory same cons4uence steuld not M "" T™ '"'^ «■« other part ^f the JSn""'' *"'"""' ""> i'«- C«m»._R„,e absolute. William the Fourth, &c. &c. To the sheriff of ^ he rendoMoTB^w^or r"^-" """^'S^ ____f ^A.B.widow,wh o was the wife of E B (0) A new nMn«!>. . . . * V 510 EASTER TEBM, 1 WM. IV., 1881. her reasonable dower, which falleth to her of the freehold which was of E. B. her late husband, in whereof she has nothing, as she says, and whereof she complains that the said 0. D. defor- ceth her, and unless he shall do so, then summon, by good summonses, that he be before us in our Court of King's Bench, at Toronto, on ' the ^^y 0^ ^ Term, to shew wherefore he has not done it, and have there the summonses and this writ. Witness (as :n other writs issued from this court.) Regul^ Generales. It is ordered, that in real actions generally, a writ of summons may issue from this court, corresponding with the form usual in England, and tested in the same manner as writs of capias ad respondendum issued from this court. The time of return to be conformable to the English practice in such cases. It is ordered, that when by reason of any privi- lege, the proceedings are not commenced by writ of capias ad respondendum, a demand of plea may be served at any time when, by the practice in England, a rule to plead might be served, and not before; and that the service of such demand of plea shall suffice as in other cases, without the necessity of taking out any rule to plead. ler of the sband, in she says, D. defor- mmon, by 3ur Court le re he has i and this From this BASm TERM. , WM. IV.. ,8ai. 611 ly, a writ sponding d in the ndendvn ra to be cases. ly privi- r writ of may be England, ore; and 11 soifiSce king out (Statement of facts referred to ««,H56) JUaitlanb et At. V. Secoro Pleas-after oyer" /LL.*'' ^"' »»<=™ber, 1826. -on Which ii«^:^"ti'r;^'^r'^'^ the facts of the case— the def.n7 / °"'"'8 *"« co-partners and merchant, f rr*"" *'"' ""^ E. S., "Oebted to the P W 1 ;,h^r L''^'^''' ""« the sum of ^1337 is, m """™°'« "> Montreal, in Tie plaintiffs hfs r L ed theTr ' 'I'' '"'"'''■ ^«22 ■""J mortgage for thTs debf andTl '" "^^ " '»'"' thereupon given. On tht sL M^°f '■" ^•'" '''^ plaintiffs rendered an aeconn, ■ 'u'"' ^^^^- ""^ "^■» on the debit s,de Zl h i"""" "^ «■-' 18s. 5d. Sundry debite IS "'^^.'^'anee of £1337 in this account, and the i""*" ^''' '=»"'»'«ed « «3 due the Plafntt t JC/* '"^ '"' «' were rendered to the defeLI "^ *'• A««>"nts down to ,he 31st March ?S ^'"'^ '"''*"'«"J^ this balance of £1043 ., ' i,?26-carrying forward were entered in such account 'T t'Y^ *"'' ""^dits of the phintilTs inereastraT;: ^' '""'""=<' '■» '"vour tm the hst, wien iHrnfunLd^^ ^J'o""'" "»'»■»»"' defendant had also cousZ!,, f '» «^- The to be shipped toHalSTuj^r' """ "" P'^'^'f' for ; and it did not apSr to h!f ?^' '^""'ted their accounts. The ft,r. f f " ^"^ ""''diled in f 0-, with intere^ to be lu, ^ ^"'"^ "^ """ taken tor the plaintiff, suLfto L f n^'"''"' '"^ fons :-Ist, Whether there l! "■» fo"owing ques- to go to the jury ,0 eS ITIf"'""^ ^''"^ce -edit for this flo'nr. t" wt.fi^" »' «» <"aim ^.™u ,or m.s flour. 2ud. Whet^Tr' "> <='« sneo claim could be applied », ! ^. " ^""""n' "Ppued as a credit in favour II of of 612 EASTER TERM, 1 WM. IV., 1881, the defendant, and given in evidence under either of these pleas. 3rd. Whether by reason of the partnership debt of defendant and E. S. being carried forward, and incorporated in the accounts current between plaintiffs and defendant from March, 1822, to March, 1826, defendant was entitled to apply those credits in liquidation of the bond on either of the pleas. The bond and interest amounted to £1926 5 10 The credits in the account, with in- terest 1329 10 5 Balance due from defendant and E. S. independent of subsequent advances to defendant alone .. £ 596 15 6 And if the defendant could avail himself of the credit for the flour, the bond would be overpaid. But the court held that the flour could not be set up as a payment-^it could only have been evidence under a plea ol set-off ; and being divided in opinion as to whether the defendant could avail himself of these 'credits in liquidation of the bond, and not of the subsequent advances to himself, the plaintiffs kept their verdict. A DIGEST or ALL THE REPORTED CASES DIOIDID IX THE COURT OF KINGS BENCH ACTION ON THE CASE. I. The Court wiJl not granf new trial on the ground of smalln.ss of damages in action for «! ,dar Atkins V. Thornton, 239. 2. Action on the case lic^ us wolJ 3. No action lies against an heir n this province on the simple con- TiallXT' ^"'=^^'-- ^--^^'^ 4. In case for disturbing plain- tiff's ferry, it is not necessary to prove that defendant claimed or received hire. Sur/ord v. Oliver, 9 a» .. Vr » * *^°" omitting to ^ay 'payable" to B. W. & Co. s defective. Andnm v. JlitchieX 3. In trespass ome V.Forrester, 332. reciting that submission, only no- h'-V-Tu^"' referred o the rSfe by which the submission was mi3e rui:";he'i,!° '^'.^r'^' '•« s rule the three defendants wer*. ?weTn't-hf ''^' ''^''- '^« -«"«nceTe! aeciaration and that recited in the award, was immaterial, as the sub! ra;r"S^^"^'^f''»h'deda: ration, ^afo v. Matthmn, 63. BAIL. ATTORNEY. A^ee Assumpsit. I.-Evidenck, 19. an ;i^ trespass c?e bonis asportatis, an affidavit stating that del^dan inH FmT' *"» of Plaintiff's goods and stil keeps possession thireof ' th^' ^^^'^ ''^<* plaintiffs are of the same name, the non-repetition of the simame after each christian name. IS not a sufficient i„eS to warrant au ass,-m,rr,<.«»*^„/ 'Vy ;- ' * — ^vijjEwcK, ly. „„ "- -•".».«« Buer eacn christian half Z '^^^•^uiea It on his be ^alt on a mere parol authority Leonard v. Glendennan, 233 ^ 2. Where a bill ig filed against d'v's T„"?hi" ^^'=^*'''"' h« Sou W m the next term to plead JUamnadjf v. Foster, 479. ^ °* AWARD. *ecPtEADIN0.5.-PRACTICE, 16. Submission to arbitration as *•■- recovered a ver^ dis^ct cou;%:n:(i as soon as the verdict was ...orded the court ad! ^^.T /i* '"°''°" ^°'' « certificate, tZfnl?. •'°P'"'"S°^^'^«<=°"«on the following morning, held too late. FaUs V. Leiois, 500. DAMAGES. See Action, 1.— Practice, 39, 30. — Evidence, 9. In trespass for mesne profits, defendant may prove, in mitigation of damages, the value of buifdings erected on the premises by him lAndsay v. McFarling, 6. A. and B. received patents for adjoining lots; A. inadvertently occupied, fenced, and improved part of B.'s lot, in the belief tha? it formed part of his own. Some years after B.'s lot was confiscated under the Alien Act, and sold by Uie Commissioners for Forfeited Estates A. and those claiming under h.m had held the disputed tract upwards of twenty years at the time of action brought, but not twenty years when B. forfeited the estate to the Crown, became seised by inquest of office. Held, that A. s occupation did not work a dmeiinn of B., and that B. con- tinued seised so as to entitle the Crown to that portion of the lot in As possession. Doe v. McDmneU, DISTRINGAS. DEBT. 1. In debt on bond to the limits by the assignee of the sheriff" a voluntary return, surrender or re- caption by the sheriff- before ac non brought and before assignment made is no bar. Evam v. Shaw, U This wru is not the proper process wuh which a suit agaiSsI a corporation aggregate should com i;^;- 9.^-/- V. Canada Col- DOWER. 3. Debt lies on the imnerial statute6Geo.IV., ch. inTe cover the penalty, though claimed bjr the informer for himself and the R-mg, omitting to name the Lieut- -Pr-EAD- See Practice, 23, 39, 30.- INO, 3. 1. Demandant in dower may assess as damages her taxable costs on obtaining judgment of seisin, ex- ecuting the writ of hab. fac. \2. and her necessary travelling ex- penses incurred in prosecuting her suit. Robmet V.Lewis, mi 518 DIOBST OP CASES. 2. An Jfant demandant may sue for dower ; and if an infant be tenant the parol is not allowed to demur. FJielan v. Pheian, 386. EJECTMENT. See Disseisin, I. -"Registry, 1. The count will not allow a decla- ration in ejectment to be amended by altering the township in which the lands, for which the ejectment IS brought, lie. Doe v. Roe, 163. EVIDENCE. See Award. — New Trial, 4.— Practice, 28.— Disseisin, 1. 1. In trespass for mesne profits defendant may give in evidence, in mitigation, the value of buildings erected on the premises by him. Lmdtay v. McFarHng, 6. 2. In case for disturbing plain- tin s ferry, it is not necessary to prove that defendant claimed any payment. Bur/ord v. Oliver, 9. 3. In trespass the defence was rested on acting under the Rideau Canal Act. Seld, that defendant should be prepared to prove not only hia authority, but that the act complained of was in pursuance of the powers given by that statute PhiUips v. Redpath, 68. 4. The certificate of a commis- sioner for administering the oath of allegiance is evidence, after his death and that of the party taking the oath. Doe v. Lindsay, 133. 5. In case for libel the truth of defendant's remarks on a report of a trial and the evidence given thereat, is not admissible under the general issue. Smaltv, Mackenzie, 174. 6. In an action against a ahetifl^, for seizing goods, it is sufficient to prove that they were seized colore officit, without proving a writ of execution. Eblt v. Jarvis, 190. 7. And general reputation is sufficient to prove ihe party seizing deputy-sherifl^. Ibid. 8. Under a bill of particulars for work and labour, plaintiff may give in evidence an acknowledgment of a specific balance due for work and labour. Drummond v. Bradley, 243. 9. In dower, deVnandant's resi- dence on the premises at the ex- pense of the heir-at-law for part of the time between the death of her husband and the bringing her ac- tioh, cannot be given in evidence as a set-off to her damages for the detention, though proper to go to the jury in mitigation. Robinet v. Lewis, 360. 10. Evidence may be given of a parol agreement to discharge an agreement within the Statute of Frauds. Mulgrew v. Pringle, 369. 11. A. agreed to pay B. for a lot of land upon receiving a deed. When B. offered the deed A. de- clared his inability to pay, and proposed new terms, which were accepted. Held,, that B. was thereby relieved from the necessity of prov- ing a tender of a deed to enable him to sue. Ibid. 13. Where the plaintiffs declared, as executors, laying promises to the testator in his lifetime, also to the plaintiffs as executors since his death, and an account stated with the plaintiffs as executors, and proved an acknowledgment of the debt to plaintiffs, JBeld, unneces- sary to produce the probate of the will to establish their representa- <^e character. Dickson v. Markle, 386. -^^ is sufficient to •e seized colore nng a writ of Jarvis, 190. reputation is e party seizing particulars for lintiffmay gire owledgment of le for work and '. Bradley, 243. landant's resi- ises at the ex- aw for part of B death of her inging her ac- i in evidence images for the oper to go to n. Robinet v. be given of a discharge an le Statute of JPringle, 269. ijr B. for a lot ring a deed. I deed A. de- to pay, and which were \. was thereby sssity of prov- to enable him tiffs declared, promises to stime, also to tors since his : stated with jcutors, and ment of the Id, unneces- obate of the representa- i» V, MarJcle, DIOBSr OF OASES. 519 '3« On a traversp nf a: memorial of a mortgage for y^arslm^'Wi^ *° '^e statute 59 Geo V. Theak^]^ "^'"'S^Se. RexLeather,m ^'^"'^ ^- ®^'-^- th^r aV. ""^"ugn stress of wea- ther. AUome,.GeneraU,SpaJ:-d, FORCIBLE ENTRY. See Restitution. FRAUDS (STATUTE OF.) Sea Evidence, 15, le. w- brought igftasr hta%'r°" .bo^°g'sro"f' i?"'""'-? "i'hm agreement telatmg ,„ ]„?, V?/ waived ™w.- [ ^'","'''' "V be PortinHn k1 document pur- hptp porting to be a copy or draft of "EIR. SUCH an instrument was shewn hv ^' ■^<=''f^n does not i;« defendant, with the title deldg of r" ''^^ ^in^P'e comJ^a d .?^^rT> e'ri^^A'l'^^J'-'ated/atrd/--^^^ ^^^^^2^/^'^ flifflU evidence of pedil5'"^'[' lowed to eo to ,u / • °^^® '« «!- HOUSE OP ASSEMBLY. 'S'ce Imprisonment. evidence to ^n T ■ *'°''' «™rds iraT T *T^ ^""^^ boid. ojy or draft. i?ocA?ca« -. ^i'^^,^^;, gg . 17. A continuance roll fm,r,A offlcer, is admisaiwJ eridJ^T' 18 m '"^'i^;^«'"*''^. 398 ;^U^dwt^f-X P"rtnef= of which resided out of INFANT. 'S'ee Dower, 2. IMPRISONMENT. "' -■- - ^"^^^'^^^^.^^J^ 620 DIGEST OP OASES. guiltyof contempt, in answering or I absent from the province at the refusing to answer before a seTect committee. JUcNabv.Bidtcell, 144f. INSOLVENT DEBTORS. See Practice, P, 18. Payment of the weekly allow- ance to a person acting as turnkey is good. Hi/de v. BamJuirt, 55}. time the cause of action accrues until he comes here. Forsyth v. BiaU,29l. INSPECTION OF BOOKS. See Corporation, 1 . MANDAMUS. See AssEssMLi^T. The court will not grant a man- damus to permit a stockholder to examine the books of a bank, unless some special reasons be assigned. Ill re. Bank of Upper Canada, 55. See INFORMATION. Debt, 2. — Evidence, 14.— Costs, 5. INTEREST. See UsBRV. JUSTICES OF THE PEACE. Cannot apply the funds of a district towards building a new gaol and court-house, without an act of parliament specially con- ferring that authority on them. — Rexy. Jmtices of Newcastle, 204. KING'S BENCH COSTS. See Costs, 3. — Practice, 23. LANDS AND TENEMENTS. Held in fee simple by a debtor at the time of his disease, may be legally taken in execution on a judgment against his executor or administrator. Forsyth v. IMl, 291. LIBEL. See Evidence, 5. — « — LIMITATIONS (STATUTE OF.) Does not run against a plaintiff MESNE PROFITS. In trespass for, defendant may give in evidence in mitigation of damapres, the value of buildings erectti on the premises by him. Lindsay v. McFf^. ume, 6. NEW TRIAL. 1. ?^ew trial refused in case for slander, where damages were com- plained of as too small. AtUns v. 7%on., '1,239. 2. The court will not grant a new trial because the defendant's attor- ney had omitted to give a notice to produce a deed, by which omission defendant was precluded from going into one branch of his defence, when the facts, if proved, would not have formed a legal bar to the action. Gates V. Crooks, 446. 3. QMcerc— Where the judge, who tried a case, has omitted to noto the evidence of an important fact — which he charged the jury was proved, and upon which their ver- dict was founded— whether, after af&davit that such fact was actually proved, though it did not appear by the judge's report of the evidence, the court will grant a new trial? Winchester v. Cornell, 60. 4. After a demurrer had been sr had been BWBST OP OASES. 521 on the ground lua against evidence. cock, 480. NON-SUIT. ^« BaII-BOND for the IIMITS, 4. trial «c. x,„.,BONp FOR THE iiM,Ts, 4. of the sher fl of a bon^d to thtT^'?*' Where a cause was called on for * '"'""^"^ ^«'"rn o.'^a irrlTdeJ' ,.,.,, 'i'^'jw, neither counsel ? '''•caption or attorney for plaintiff appeaS?'^"" and be r..r«e, joined o„ «w ,^j*,it,!t%t'r»d*'l •'' •*ftei iMue joined on mW <« «««* and . „j,j, ^, court D,^ niitted the Dtaintifr .- """''per- ORDERS OP JUSTICES. ^wftCM o/Mtocastle, U4. olio- ^ ° "* "'"H Within tbfl allegiance, nor state of what parent or when the demandant warborn' in Dar. JSohnet v. Lewis, 44. nott" ]Va T*'*"? ''^ * promissory semmln. /"^"*''°" muBtaverpre^ wherTJhe^"' r^^«»^ ".' '^^ ?'«« u,"^\o tne note is made navAk). PARTNER. &e Evidence, IS—Pbactice, 41. PARTIC"LARS OP DEHJaND. See Practice, 40. itt^S-"-"^- t ff shin W 5 ^* J"»""y. and Jlara- "n snouJd deliver up a houa« J» k;- possession on 5th January. So JS currentacts,aBd plaiatifP, ~!^- to fulfil his par?ra'S«cTiary r,' mem. ^a^cr v. J5«,«'thT--'"''."^»-"'»''""v to a tnisn in ♦!._ . it „.."'" 'e*' 3x PEDIGREE. ^ Heir, 3. to a toise in the wall mM~hlJ^* demurrflr XT •*'*'» bad on «emurrer. Sbwe v. JVewwon, 90. 522 WGBST OP CABBS. 7. In debt on bond conditioned to pay rent ; a plea that before rent became due plaintiff assigned to A. a. to whom defendant paid: held rXrin!'""""- ^''^-^««- 8. Trespass for taking, impound- ing, and selling plaintiff's horses ; plea, that horses were damage ha- sant. Replication, that b/ town meeting regulations fences should dam s fences not being that height, but^ruinous and out of repair, pi Jin- ^tI^^ ?"!f ««f«Pedout of his close inll!?"'**''!,' «'°se, without the faiowledge and consent of plaintiff. I ^eld good on general demurrer Ives V. Hitchcock,^!. ™""^'- PRACTICE. 1. Where plaintiff appears bv statute for defendant, 7 rule tJ plead cannot be dis:.8nsed with Bergin v. Thompson, 1. ' (Rescinded by rule of court. Easter, 11 Geo. 4.) 2. No pajper is properly filed until markecf"filed"^y^ihe proper officer. Campbell v.MaddenU. blank had been left at the time of execution m the condition, which was afterwards, and with the obli- fp°n.\*«n"i <^'''°"S'' »°tin his pre- jence) filled up with the endorse- Jactum. Defendant held liable. Leonard v. Merritt, 381. 3. Where a writ is bailable the court will not amend an original ca. re. by making it a testatum, though &pr(Bcipe for a testatum is filed LampbeU v. H^hum, 3. f-v^if^n® "**^'" " "°' *o 'efuse to tax K.. a. costs, merely because the ,yerdictis within the district cour' IT'? -"'iT "'""""gJ^ the judge who tried the cause has not cer ified. McMurray v. Orr, a omt.tZi^^ "^""^ "i«^J^a6&" being om tted m an afliaavit to hold to bail on a promissory note, the 10. A plea to an information for 1jL^.1? •°'"**'°5 "^.fi^*""^' " teing Illegally imported ; that "they werl not imported rndo et forma" is sus- tamed by evidence that the vessel S^«tT^-A*"'^*'>•'tthegoods were landed through stress of wea- tgwr. Attorrui^ General v. Spafford, POSTAGE. On a letter carried by inland ;»;;ft'°« ^'T "»« post town "S t^fe ?"'* be charged according llrrjL"*^*'^ ^^^ ^«"«' is actually carried, and not according to the distanceby the post road between the two places. DkJcstm v. Crooks, to «n JJ " '*'" "°^ grant leave to enter an exaneretur when bail have surrendered their princina without a ce tificate from the sheriff! LtnUi, V. Cheeseman, 53. 7. Payment of weekly allowance to a person acting as turnkey is a good payment to the debtor. Byde V. Bamhart, 53.- " 8. After a rule for weekly allow- ance, plaintiff cannot filefresh inter- rogatories, and suspend the pay- ment, although he hear of property supposed to have been made away, of which at the time of filing the first interrogatories he had no know- ledge. Semhle, {bid. 9. The court revived a lapsed rule nisi, upon affidavit that it had been served and transmitted but LCTICE. laintiff appears by _endant, a rule to be dis-ansed with. pson, 1. by rule of court. 4.) is properly filed lied" by the proper ^11 V. Madden, 2. writ is bailable the Qcnd an original ca. a tettatum, though testatum is filed. 'mm, 3. • is not to refuse to merely because the I the district court dough the judge se has not certified. •.a "paycaie" being ffidavit to hold to iissory note, the side. Andnus v. ill not grant leave iretur when bail their principal, e from the sherifl: (», 53. veekly allowance f as turnkey is a 16 debtor. Byde or weekly allow- ot file fresh inter- I spend the pay- bear of property een made away, me of filing the he had no know- d. vived a lapsed ayit that it had ransmitted but DIGEST OP CASES. 528 10. An affidavit made of a rule '''^ ^e^n. ^t of fhrithsT' ''''^'* Jor payment of costs served and^''"« »«"<:« of hfs reTurn ♦ V demand, the court will 3e "hen^"«^y. before he 7s entwrJ""' hart, 201 19. The court allowed « i..^» .fnento„,«./„.againsT2n\a: trial, rule nisi made ah.ni.l' :?°J°I ^^liard v. Woolcut, |oi^ ^'"®"*- trial, ruil„rZra3riK f- -stance. BenkanT Sht] 12. In debt on bond to the limits damages must be assessed. Sa argu;dTnd"i.f/''"""''' ^«^ l'^^" it cannoTi,J ^?.^"' Pronounced, hL K . «^«hdrawn if a tria Tli^^J""* plaintiffs named M The non-repetition of the sir-name !?J:'::«^^^^"='^"3tian-„ameir„ra ca. «a. does not issue, as a matter of course, without enquiry. S5. 31. The court will not. on mo- be'enttdTer%3T'r -^>^ that the husband diel ^s" feT^of lands, and enquiry shall i« '^"ning the SaSges 1?^ The" period of his deatl though the «.Vffl . ^" .''""stzan-name ig not a Period nfi^.- ""'""^s since th< sufficient irreeularitv tn „ perioa ol his death, thouffh th. 23. Where defendant resided in one district, plaintiff in »««!. and a material witness in a th^^J' the court «iu„.-j T^^ inatJiird, bond M." A *^^'S'i™ent of a b; Dond. Meighan v. Brown, 167. 15. When a cause was referrPfl to arbitration, on a verdict trkenb J consent, and thu o„,„-j i. .^'^^" ".y tereTbeZ'e ?h1 tt";"' T ^"- *^°"^'^. ?« «'^««-'' was* gfv'en for a alMhe^^'onnt^ plaintiff abandons 24. A rule to return a a f butonp «n]^ J". '^'^ declarationC^nnot issue out of the offi!.' •^"; tha\r^b?lfc•-.^-'dicton the d put ^ ^^^ ^^^ ^ an outer district. Aru>nyniS^^^ ticf ;t*''i'"''^'°8f '° *h« old prac- tice, a bail piece must have Wn S-'i^'^fif-mthecoXtn 26. After service of a demand of 624 DiaEST OP OASES. replication, rejoinder, Ac, a party desirous of having further time must obtain a rule of court or judge's order for that purpose. SmaU v. Mackenzie, 241. 27. The court will not disrlmrge a prisoner in execution when the plaintiff died, and the weekly aliow- anc« was tendered by a person who had usually paid it, although no ;id- rainistration was granted for some time. Beard v. Orr, 40. 34. When defendant had an at- torney on whom service of several papers had been made, the court set aside an assessment of damages, the notice having bion served on defendant only. Ferrie v. Tama- hill, 327. 28. A demand is necessary be- fore suine a sheriff for overplus of money levied under an execution. Rvggks v. BtfUek, 244. 29. On a writ of enquiry in dower, the mesne value of the premises, between the death of the husband and judgment obtained, should be assessed. RoUnet v Lexois, 260. 30. Th6 demandant may assess as Jamages her taxable costs, on obtaining judment of seisin, of exe- cuting the writ of hah. foe. seiz. and her necessary travelling expenses inciured in prosecuting her suit. lb. 31. After verdict for plaintiff and contingent damages assessed, judg- ment was given for <.efendant on demurrer. The court refused to allow the plaintiff to amend his replication. PhiUips v. Smith, 290. 32. Lands and tenements of a deceased debtor maybe taken in execution on a judgment against nis executor. Fimyth v. Hall, 291. !i3. When notice of intention to move on the ground of irregularity IS required in England to be given two days before the execution of the writ of enquirys a similar notice shall be given in this court not later than the first day of the as- sizes, at which damages are to be assessed. JDougall v. McLean, 318. 35. A ca. re. is not the first and original process in this country in real actions, as dowci. Phelan v Phelan, 386. 36. In dower fifteen days must intervene between .he teste and return of the sum'aons. Ibid. 37. An attu -ii.iient against a sheriff for not obering a rule to bring in the body, ci^nnot be granted by a judge at chambers. Rex v. Sheriff of Niagara, 331. ^ 38. A writ of replevin with a justicies clausQ is irregular. Cor- nell v. Quick, 437. 39. The court will not interfere to reduce the sum endorsed to levy on&Ji./a. on a strict legal ground, unless thedefendant has anequiial.le ground to sustain his application. Maitland v. Secord, 456. 40. A party has the same time to plead after particulars delivered on a judge's order, as he had after the summons was returnable. Wash- bum V. Fothergill, 476. 41. Where the plaintiff in his affidavit of debt swore that two per- sons, trading under the name and firm of T. & Co., were indebted to him and sued out process against one only, the other being within the jurisdiction of the court. The ar- rest was set aside. Chisholmv. Ward, 478. 42. If a bill is filed against an attorney in vacation, he has the four first days of the following terra to plead. Maoanadu v. FoOer, 4'jo. 43. A rule for judgment, as in n defendant had an at- rhom service of several been made, the court assessmpiit of damages, laving bien served on raly. Ferrie v. Tama- re. is not the fint and cess in this country in , as dower, Phelan v. wer fifteen day« must Btween .he teste and I sun>uions. Ibid. atlu.ij.nent against a lot obeving a rule to )ody, ci^nnot be granted at chambers. Rex v. igara, 331. it of replevin with a tQ is irregular. Cor- ,427. )urt will not interfere sum endorsed to levy 1 a strict legal ground, jndanthasanequiialile stain his application. ^ecord^ 466. r has the same time to irliculars delivered on 3r, as he had after the 3 returnable. Wash- gill, 476. the plaintifl in his >l swore that two per- under the name and 'o., were indebted to out process against ther being within the the court. The ar- aside. Chisholm v. is filed against an ication, he has the if the following term anadv v. Fogter, 4'tQ. for judgment, as in i)rOBST OP CASKS. case of nonsuit having been dis- charged.on the terms of entering in- to a peremptory undertaking, and paying costs, the court in the foliow- ing term, on affidavit that the costs were not paid, made the original rule absolute ,n the first instance. ^^gm V. Whitehead, 510. PREROGATIVE. o. JJf ^"°'n«y-««neral, on behalf oder,?r"'^'''*'"f'^'"'r«'°°ve orders of sessions relative .o the expenditure of district rates, bv f^es of Newcastle^ \U. 525 PROCESS. See Corporation, 2. 1. A writ of diitringoi is not the !l!?j\.* corporation aggregate s^uld be commenced in S P 2. The process of this court can PROMISSORY NOTE. See PtEADiNo, 4.— UstJHv, 1. . ^ '^^^} tlue to a bankrupt estate IS a good consideration for promis- sory notes given to Hie assignees Tr'TfJ^ 'he estate, TaZ V. Crooks, 446. aUI TAM. In debt for penalties on the im- perial statute 6 Geo. IV., c. 114 which g,ves the penalty one-third L . n'"^' o»e-third to the Lieu- tenant-Governor, and one-third to the informer; the court refused to pJamt ff claimed the penalty for himself and the King only. Lr- q- t. V. Chace, 328. ^ REGUL^ GENERALES. 89, 170, 280, 512. 3. Process to compel theappear- ZV^ *»»« ?»n*da Companfcan. no be served on the Commissioner here. Cooper v. Canada Company, PRIVILEGED COMMUNI. CATION. Receiver-General's Office, told his derk'^aH"'';>.'^' S'.*'"*'^'' *"°the Clerk, had robbed him (the R. G ^ of money; there being no proof or that the Receiver-General had ever suspected it. l,.m *^^t -- • „-„ F , " --T — — * tJsBt SUCH communication was not privileged REGISTER. Where A. being seised of real estate, under a regist- red title con- vevedtoB.anddied,andA.'aheir- t"o C Jr^L'^/l'-^" same premises to C. who had his deed registered immediately, mid that tffe deed last registered is fraudulent and void, as against tho deed first regis- tered, though C. had notice of this deed when he purchased. Doe v RIDEAU CANAL ACT. If defendant rest his defence on should be prepared to prove that the act he justifies was regularly done under the statute, and LtrZ raereiy on his being employed'in , the construction of the canaJ. Phi. Utpsy.Redpath,69. 52G DIQEST OF OASSS. REPLEVIN. See Practice, 38. RESTITUTION. The court refused a writ of resti- tution after a conriction of forcible entry and detainer, where the pre- mises were a Crown reserve, the lease of which had expired. Rex V. Jackson, 50. STATUTES. Semble 6 Eliz. c. 4, is not in force m this province. FUh v. DoyU, 888. SECURITY FOR COSTS. Defendant's attorney entering common bail is a good appearance to sustain a motion for security lor cost. Grace v. Meighan, 187. SCIRE FACIAS. See Amendment, 4. Judgment on tci. fa. against B. the heir of the deceased owner of land, and a/i./j. thereon, awarding the sale of lands of which the de- ceased was seised on a specified day, previous to which he had died, will not sustain a purchase, and a sheriff's deed under ouch judgment and^, fa. gives no title. Vareu v. ifMiVAcarf, 486. SUGGESTION. In dower a suggestion may be entered, after final judgment, that the husband died seised of lands. Rohinct v. 2/etow, 228. TRr\L. When neither plaintiff's counsel or attorney appears at nisi prius, when the cause is called, a jury may be impanneled, and the plain- tiff non-suited if the defendant ap- pear. FaOs V. Lewis, 269. SLANDER. See Action, 1.— Evidence, 5. SHERIFF. See Evidence, 6, 7. 1. Process can only be served by a sheriff or one of his officers. Whitehead v. FothergiU, 200. 2. In an action against a sheriff for overplus of m6ney levied on a fi'fa. a demand before commencing the suit is necessary. Ruggles v. Biilcic, 344. USURY. Notes given, bearing interest from a period antecedent to their date, are not usurious on that ac- count, when it appears that the debt for which such notes were given was due at the time from which interest is computed. Gates V. Crooks, 446. VARIANCE. See Award, I. VENUE. See Pleading, 3. » - VERDICT. If a plaintiff at a trial abandons all the counts in his declaration but one, on which he obtains a verdict, the defendant is not entitled to a verdict on the other counts. Gates V. Crooks, 180. WEEKLY ALLOWANCE. See Insolvent Dsbtor, 1. WITNESS. See EviOKNcs, 18. ES. > is not in force 4v.Z>oyfc,888. ION. stion may be udgment, that ised of lands. itifi's counsel at nisi priui, ailed, a jury ind the plain- defendant ap- 289. ring interest ident to their I on that ac- lars that the notes were le time from tuted. Gatet 1. ,3. ial abandons :Iaration but ns a verdict, ntitled to a mts. Ocaes VANCE. TOR,]. 18.