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Frederictoii, jjd March, I835. ^ r^ u I PREFACE. • /V^'j"/ *** "l" ^*8^' Profession and the Public, Reports of th* r«« j lo ff„,« "^h^^f f"™'"'^ ''^^•"•^ ♦•'« S"P«'"« Court of h" Kovince ; beTl' ^1' to state that I am actuated solely by a wish to be of servir« « u ^ ^*? has long been much desired, and every year must become of Lr "'' ''.'^°''' and as no other person has undertaken t^,e faT I ha^de^Lmr J'?P°''''"'*=^' BenSflslt :?„'stituVer°' ''"' '' ^'° -«"»«'^— ' of thelabors of the apXio^°;f my'^dtS^'Jftra? if m?p7of"'^" \T ^i"'''^. «P--d their not regret the ti,Je an! labor I may e^/eJi * """' ^''''''''' " ''^^'^' ' «">»" Fredehicton, 21st FBBRtTABT, 1835. ^" ^' ^' ^^RTON. i SUPREME COURT OF JUDICATURE. Tb« Hob. Wars Chipman, Chief Justice. William Botiford,') " James Carter, \ • Justioei. RoDERT Parker, j Charles J. Peters, Attorney General. Georub F. Street, Solicitor General. JoKN S. Saunders, Advocate Genera]. MM REPORTS. Hilary Term, 1835— 5th William 4>th. TUE KINO, ^ ^IIHIS wai an iDformation for Io(ru< V. > -'■ sion on Crown Lands, in Chailotte John Wilson and others. ) County, tried at Bar in latt Hilary Term — Verdict for Defendant. The Attorney General moved, in tbe same Term, to set aside the Verdict; tbe grounds were — Ut. That a Plan, purporting to be a Grant plan, waa improperly received in Evidence, not being annexed to the Letters Patent. 2d. That tbe Grant, called tbe *' Chamcuok Grant," did not include the locus in quo, and was not intended so to do. The cause having been argued at the ' present Term bf the Attorney General for tbe Prosecution, and by Mr. Street (the Solicitor General,) for the De- fendant — The Chief Justice now delivered the opinion of the Court: Upon the first point, it appeared in Evidence that Colin Camp- bell bad found the Plan and the Grant together in tbe same bundle of papers left by his Father, that they bad been in his possessien 25 years, and bis Father had held them for a longer period before that: The proper place for a Plan is in company with the Grant which refers to it. It is said this Plan was never annexed to the Grant, but it is material that the Grant refers to a Plan, and in the habendum, the lots are designated only by numbers, referring to the Plan; and there is an exception out of the Grant of a particular Lot, No. 70, and of certain tracts " marked on the Plan," it is ob- vious that effect can be given to the Grant only by the Plan. It cannot be supposed the Grant issued without a Plan; the maxim of Law is, that a Public Officer shall be supposed to have properly discharged his duty. The Plan is signed by the Surveyor General, whose duty it was so to authenticate it: an objection was taken that this was not the best evidence — that a copy of the Plan might have been procured from the Record. away Timber, White, Garrison, and Woods. ) Plea lit. Not Guilty. 2d. As to the toking and carrying away. &c. White and Garrison pleaded that it was seized by Garrison, as the Deputy of the SheriflT, White, under a Writ of Replevin, at the suit of Woods against one William Turner; and that the same, just before (he taking, Sic had been taken possession of by the PlaintiflT under a sale from one Dibbleo, but there was no allegation of fraud or collusion. To the second Plea, PiaintilTdomurred. Tho Demurrer was argued in Michaelmas, by (he Solicitor Ge- neral for PlaintifT, and N. Parker for Defendant. Chipmanf Chief Justice : This question depends on the exigency of tho Writ of Replevin. Tlio argun^ent for Defendants is, that the exigency of the Writ is to rcplovy the Goods specified therein, and that the identity thereof is the only thing material. The Counsel for the Plaintiff urges that it is further requisite that tho Goods be found in the posseasioD of the Defendaut against w.homlhe Writ issued; I am clearly of opinion that the last is the correct construction. Replevin is an action of a peculiar nature in which the Plaintiff is in the first instance put in possession of the Goods in dispute, and the Defendant may claim and have a return of the Goods; and from the principle in Replevin fhat the Defendant, and the Defend- ant alone, can claim and have a return, it is evident that the Goods can only be replevied from the person against whom the Writ issu- ed. The English Practice (see Sellon's Practice,) our Rules of Court. The Writ itself, the Capias to bring the Defendant into Court, the Replevin Bond, all shew and confirm the same doctrine. There muat be Judgment for the Plaintiff on the Demurrer. Botsford, J.: The Writ of Replevin is confined to the Parties named in it. Tho Action of Roplev'iQ nhould be extended wherever it can , and thould be encourosed; but it might be greatly abused iT the SherifToould under the Writ take properly from a elranger. Carter t J. : Not having heard the argument, did not give an opinion. Parker^ J.: Concurred. The plea admita that the Goods were replevied from a Ktranger, against whom it is admitted that replevin would not lie, because he neither took nor commanded the taking. The Writ gives a general diToction to the Sheriff*, but it does not mention the numerous exceptions thereto; yet the Sheriff is bound by those. I need only mention the familiar instance of a Fi Fa. The Sheriff is commanded to take the Goods ofDeTendant, but although he may see them through a window, yot he cvnnot break the door to get them, and may return nulla bona. The Sheriff under a Writ of Re- plevin cannot take the Goods out of the possession of a stranger. Ward, ^ Clearv, tho Attorney for the Plaintiff, ia lust Hilary Va- V. > cation issued a Writ of Inquiry of Damages, ruturnable in Doto. ) Easter Term. The Jury woutd not give a Verdict for any thing in favor of the Plaintiff, and not being able to find for Defend- ant, vore dismissed without giving a Verdict. The PlainiiflT's At- torney, in Eas'er Vacation, issued another Writ, and Damageii were assessed at £"20. In Trinity Term last, Wilmot for Defend- ant, obtained a rule nisi to set aside the becond Writ of Inquiry and Inquisition for irregularity with Costs. The irregularity courplaincd of was, that the second Writ of Inquiry was improperly issued with- out the leave of the Court having been first obtained. Perton for Plaintiff, showed cause in Michaelmas Per Curiam. We think the Plaiutiff has pursued the correct course, and that which was least oxpensive to the Defendant. Aule discharged with costs. Rex, ^ Indiclment for obstructing a Highivay. Tried before V. > Botsford, J. in Michaelmas Term. Sterling. ) On the part of the Prosecution, a Record of the Road made by the Commissioners of Highways of the Parish of Saint Ma- ry's, in York County, was put in Evidence. The Road never had been marked or laid out on the Land, and never had been opened. Several points were taken by the Solicitor General for the Defendant : Ist. That It was necessary to shew not only the Record of the Road but that the previous steps required by the Act, in altering a Koad, had beerji tcken by the Commissioners, and that the Record could not be considered even prima facte Evidence of the correct- ness of the preliminary proceedings. 2d. That the Road never had been laid out and opened, and therefore could not be considered a Highway. 3d. That before the Road could be opened, it was necessary that the compensation awarded to the Owners of the Land should be first paid. 10 Tho Points were leBOivcd, and a Yoicliot entered against tli* Defendant. Tho SolL^itor General having obtained a rule nisi to enter a Ver- dict for the Defendant upon the Points above staled. D. L. Robinson at this Term bhcwed cause. Tiie Court in giving Judgment, considered only the second point. Chipman, Chief Jasiice: This is an Indictment for obstructing a Highway. The obstruc- tion mast be shewn upon a Highway. It is not necessary to re- mark on the doctrine of uso>-. It is quite sufRcicnt to refer to the Act of Assembly, 50 Geo, 3, c. 6, under which these proceedings were had. This return is not snfHcient Evidence oi a laying out. It is not necessary for the decision of this case to prescribe what would be sudicient, but in the present case the return or Record does not specify or particularly define through what part of the Lands the Road was intended to pass; it is so vague that the in- tended course cannot be ascertained, — one expression is " running from point to point, as straight as the nature of the ground will per- mit." The strong inclination of my opinion is, that in order to make a good laying out under this Act, there must be some marking out upon the Land — this may also ba designated upon a Plan. The return is only the Record of the Road as actually laid out, and the tenth section of the Act clearly shews that the Road muat be "laid out," before it IS entered in writing or recorded. ^ , Bolsford, J. : In order to sustain this Indictment, it is necessary to establish the locus in quo to be a Highway. The Act of Assembly, before referr- ed to, prescribes tho course the Commissioners are to pursue; thoir duty is plain, and following the directions of the Act there can be no difficulty; but here, instead of doing so, from some fear of the correctness of their own acts, as appeared by the evidence of one of the Commissioners, they have neglected to open the Road, and ha7e instituted this proceeding to test their legality. Looking to the return, can any person point out-the exact course of the Road? If Evidence had been adduced of the actual laying out of the Road, I am not prepared to say the return, vague as it is. would not be BufTicient Evidence. The return or Record is not to be made un- til the Road is actually laid out. Carter, J.: . - • • The locus in quo nnust be shown to be a Highway. Even grant- ing that the return is correctly made, it must be so definite that any person may go upon the Land and point out tho Road. Here two persons may go from one terminus to the other by different courses. Parker, J. : The only question I will consider here is — Is the Road laid out? What, in the first place, is a Road? It is a piece of ground stretch- ing from point te point and of a certain specified width. Tho Re- cord is not the laying out the Road, but the Evidence of it. Then is it to be Evidence of an act or of an intention only ? Who can, by the Record before the Court, point out the Road? Verdict entered for the Defendant. 11 JJicliinson,^ Jlssuiiipsil. Tried bofure (lie Ciiiel' Justice, at the V. > Carleton Circuit, in September last. UuUock. ) TiiG Declaration contained only the Common Count's Plea — the General Issue with notice of set ofT. The PlaintiiT'fl demand was for a lar^e quantity of Timber, for work and labour in driving that Timber, and there were also sundry small items of account. By an agreement put m Evidsnce, by the Plaintiff, it appeared that Defendant was to make Timber in thn Woods, and PlaintifFto haul it, and have one half for so doing — but the first half that was hauled was to belong to Defendant, and ho was also to have the refusal of the remainder. Dy the same agree- ment it appeared that Defendant had paid Stumpago on the Timber, amounting to £'2.5, one half of which was to bo repaid to him by Plaintiff. Plaintiff alleged that Defendant had received much moro than his half, and sought to recover payment for the remandcr — the Evidence on this point was vague, and it evidently was not con- sidered Buflicient by the Jury. There was Evidence also of work and labour, and it was questionable if the Jury did not set off ihu c£l2 10s. tonnage money, against that — the amount, it sufliciently proved, being about that sum. Two items, amounting to 259., were clearly proved. No evidence was offered on the part of the De- fendant. The Jury found a general Verdict for the Plaintiff for !J5s. In last Michaelmas Term, Berton and W if mot for the Defendant, obtained a rule Mist to enter a suggestion to deprive the Plaintiff of Cost? ; they urged that the lOlh Section of the Provincial Act of 50 G 3, c, 17, was a literal copy from the London Court of Itequests Act; and that by the decisions under that Statute, the Verdict must be considered the amount in demand. They cited 2 Tidd's Prac. 994, 4 Burr. 2133, 8 East. 238, 346, 1 M. & S. 393, GTaun. 452, 1 Taun. 397, 2 Cromp. St Jer. 505, 4 B. & C. 769, I Dowl. Pr. Ca. 580, 2d do. 58. The Solicitor General at this Term shewed cause, and contend- cd that this Action did not come within (he intent of the Act of As- sembly. It wai* for a large and important demand, and the Ver- dict was a general one, and it could not be said that it was upon any particular item of the account, and further that the sum of £I2 lO^-. mentioned in the agreement must bo considered in the nature of u setoff; he urged that had the Verdict been for the Defcndunt, thu learned Judge would not have certified to gwa double costs, and that shewed the cause was not within the Act. The Action could not have been tried in a Justice's Court. Clupman, Chief Justice: This action was for Goods sold — the Verdict was for 2os. The cause involved matters of a large amount; there wore two small ar- ticles proved distinct therefrom, which made exactly the amount of the Verdict. It has been contended on the part of the Plaintiff that the real matter or cause of Action should be considered. The law in cclarly settled thai the sum recovered by (he Verdict is to be con- sidered the Debt due— 4 B. & C. 769, 2 C. & J. 505, 1 Dowl. Pr. Ca. 580, 603, 704, all settle the same point— ;))(ma/ac»c the Ver- diot is Evidei.co of the Debt due. In 2 Dowl. Pr. Co. 58, tho Plaintiff failed in proving part of his demand from tho absence of a 12 WitneiB. The Verdict being under £5, a auggestioa was entered. The Law, as collecied from iheie cases, is, that the ca.*ount of the Yerdict is the sum in demand, and the onus is on tue PlaiiitifTtn shew circumstances to lake the case out of the Rule. Here it is evident that but for the two items, before mentioned, the Verdict would have been for the Defendant. Bolsford, J.: I entertained doubts upon a case in 8 E. 346, where Lord El- lenborough remarked upon the Plaintiflf having a reasonable cause to bring his Action for a larger sum than £o. But the Law is clearly settled by later decisions. The present case is stronger than 1 M. & S. 394, where failing on the special counts, Plaintiff lecovered a small Verdict on a balance oflnrge accounts. 6 Taun, 452, is clear also as to the Yerdict being the amount of the Debt. Carter, J. ; Looking at the circumstances and applying the Yerdict to tho Evidence, little doubt can be entertained that the Yerdict in this case was for the two small items ; but even supposing it were otherwise — that the Yerdict was upon the larger claim, the case in 2 Dowl. Pr. Ca. 58, and other cases, make it imperative to enter the suggestion. I cannot draw a distinction between this and the case I have mentioned. Parker, J. : ' ' I have looked at all the cases. There appears a perfect unani* mity in Westminster tiall upon ihe subject. The Verdict is tho general rule, not the exception. The Judge's notes shew there was doubtful evidence of the larger demands, and clear proof of the small — and so His Honor charged the Jury. The Court must bo sBtisHed that the Jury found upon tho large demand and not on the small, or the suggestion must be entered. Rule made absolute. Foidis, '^ J]clionofJ2ssumpsit. — Referred by Rule of Court. V. > Judgment to be entered on award as on the Kinnear Sf anjther. ) Yerdict of a Jury. The award was made on the 8th July — the first day ofTrinity Term, 1834. In Michaelmas Term, Wright for Defendant, obtained u rule nisi to set aside the award upon two grounds: 1st. The award was not conclusive. 2d. The improper conduct of the Plaintiff's Attorney. Cause was shown at this Term by N, Parker for Plaintiff, and the Solicitor Genera! was heard in reply. , Chipman, Chief Justice : The first point depends upon the circumstance of the Arbitrators having thrown out of their consideration two articles, a Cylinder Bottom on the one side, and certain Boiler Plate on tho other, which they directed to be oxchanged. Now if the it rbitrators undertook to determine the Tjaw upon this subject, it was competent for them to do so, and the Court will not interfere; but on this point, even if there were grounds for tho application, tho Defendants are out of time. Tho award was made on the 8th July — the Defendants wero 13 Bware of ii before (he I lih, and if they did not know, had full op- portunity to inform themselves of the grounds oi it; they sufTered iha Trinity Term to pass, and on the £2d day of July g&ve notice oi'motion. The same rule as to time must prevail in this case, as i I motions fur new (rials — the award being entered on iAieportea as the Verdict of a Jury. As to the secnnd point. It is stated there was misconduct on the part of the Plaintiff's Attorney. To support that, it should be clearly shown that there was a breach of faith in entering up the Judgment; but the paper to support that contains uo condition precedent to, but is predicated upon the award. It expressly stateii the award, and merely guarantees the return of one ar^<;le when the other shall be restored. There is not the slightest ground of imputation agaiust the Attorney. Bolsjord, J : The award is final, so far as as the Arbitrators have considered the accounts. It appears that the two articles they directed to bo interchanged, they considered not matters of account, and as they could determine Law as well as fact, the Court will not decide that they have not done risht; but at any rate the Defendants are guilty of laches. On the 1 1th July, they expressed that the award would be paid with the costs, although they were dinsatiafied. The last day of Trinity Terra was the 19th, and not until the 22d, did the De- fendants intimate their intention to question the award. On the let of August notice of Taxation of Costa was given, and Judgment was signed on the 5tb August. The Defendanla should not have allowed the Term to pass. As to the second point. No imputation can be cast upon the Attorney ; he has acted correctly and with diligence. Carter, J.: The award is final. It awards £11 10 10 to be paid to tlio Plaintiflf, and the other articles are not considered. — As a matter of Law — the Arbitrators determined, the two articles were nut includ- ed in the reference, and did not consider them in making up tbo amounts of the accounts; but under the circumstances merely di- rected an exchange. The Attorney appears to have acted properly and honorably, and the Defendants are clearly in laches. Parker, J. : Concurred. The Action was for Goods sold and delivered. The Arbitrators were to consider what Goods were so; ihcy determined that the two articles could not be so considcrevi. Some discrepnn- cies appeared in the affidavits, whichhowever could be reconciled; but it was worthy of remark, that there were in this case two De- fendants, and two Attornies jointly acting for them — all of whom acted in the matter of the relerence, and yet the Affidavit of only one had been oflered: the Court should have hod Affidavits from all. As to the conduct of the Attorney — when the term improper was applied, there should have been something to found it upon: there was clearly nothing. The Defendants were in lachts, in nwt having moved in Trinity Term. Rule discharged ■.viih Costs, J I 14 John Heaney, ^ .Aclion Jar a Malicious Prosecution jor Fclunij. V. > Tried before Botsford, J. at the Northumbeilaud Richard Lynn. ) Circuit, in September last, when the Plaintiff waa non-suited. The question aroae upon the production of the Record of Acquittal of the PlaintilT. An order of the Judge, presiding at the Court of Oyer and Ter- miner, having been obtained, the Clerk of that Court was sworn as a Witness, and produced the Record, signed by himself, as the Of- ficer of the Court. J. A. Street for Defendant, inquired from whence he obtained the Record, by whom was it made up, and had it been compared with tho Indictment, &c. Berton tor Plaintiff, ob- jected to any question being put, and to the admission of any parol Jil vidence, to affect or impugn the Record . Ttie objection was over- ruled, and it was stated by the Witness that the Record was mad<) up by Mr. Harding, the Plaintiff's Attorney, who tiled it with him, and that he had not examined its contents with the original papers. Two objections wore then taken: lat. That even if the Record was correct, an order of the Su- premo Court should be obtained for its production, without which it could not be received in Evidence. 2d. That it could not be consjidered a Record of the Proceedings in the Criminal Prosecution. Berton contra. As to first oUj'?ction, cited fjeggatt v. Tollervey, 14 Cast. 302, and urged that the Record being properly authenti- cated, could not be questioned. The learned Judge supported the objection, and ordered a non-suit. In Michaelmas Term, a rule nisi was obtained to set aside the non-suit and grunt anewTrial upon the grounds taken at JVisi Prius. J. A. Street at this Term showed cause. Chlpman, Chief Justice; This is an Action for a Malicious Prosecution for Felony, in which the Plaintiff was acquitted. A Record was offered in Evi- dence, produced by the Deputy Clerk, in whose custody it was. I am of opinion that the Record, however improperly made up, could not be questioned at the Trial. The Rule as to affording co- pies cf Records in such cases was made by the twelve Judges, and is a wholesome restraint upon Actions which might tend to prevent the prosecution of public offenders. The Clerk acted improperly in authenticating a Record made up by the Attorney for the purposes of this Action. It is upon his signature the Record depends, and a Record produced from his custody, and with his signature, cannot be questioned. A copy of the Indictment should not have been furnished e.\cept upon the order of the Judge, and 1 think the appli- cation for such an order should have been made in open Court — no- vertheless these matters cannot be looked into at JVtsi Prius. The case of Leggatt v. Tollervoy in conclusive. Botsford, J. : There should be an applicntion in Court when the circumstances are fresh in the mind of the Judge, for a copy of the Indictment; but I am now satisfied that the Record should not have been refused. -M Cause contained Counts on promises Charlotte Jlgnew. ) to Testator, anrl also on promises lo the Executors, and a Count on an account stated with the Plaintififs as Executors. The Plaintiffii were non-suited. Tho Master hav- ing refused to tax the Defendants costs — 1st. Because as Executors they were not liable to pay costs, end 2d. Because he wai a party PlaintifT. Barton at this Term moved for a rule nisi, to allow the De- fendant her costs, and that the enme should be taxed by one of the Judges ot the Court, and cited 2 Chit. PI. 102, 110, and 9 Bar. Sc Cres. 666, Dowbiggin Adrnx. v. Harrison. Robinson for Plain- tiffs, showed cause, und urged that the casj cited in Bar. & Cres. was directly contrary to all the other cases. Per Curiam. This case is precisely the same as the one cited at the Bar, and as the latest decision the Court must be bound by it. Carter, J. mentioned, that since the case of Dowbiggin v. Har- rison, it was very unusual in England to insert a Count on an ac> count stated with Executors. Rule absolute. icua ecu f \ ADVERTISEMENT. SiwcK the Publication of the first Number of this Work, induced by kind oSera of assJBlancti received from Members of the Profession in different parts of theProvinetilhave determined to add to the succeeding Numbers such JVut Priui Cases, involving legal points, as may occur. This Number contains eo- veral Cases tried at Bar during the Term. The Work will be continued during the present Year at the cost originally mentioned; after which, the expense of Publication, &c. will render an in- creased rate of Subscription necessary. G. F. S. BERTOxV. t I 1 1 CASES TRIED IN EASTER TERM, IN THE FIFTH YEAR OF THE REIGN OF WILLIAM IV. NoTB. —In this Term there wero present only His Hoaor the Chibf Jvstics and Mr. Justice CAHTEa. SCOULLAR vs. HAZEN. This was an Action on the case against the Defendant as She> rifr of Siinbury County, for the escape of a Prisoner in custody under mesne process. A Debt of £60 and upwards from Prisoner to PlaintilT, the iasu* ing of process, the arrest and escape were established. It appeared that the Prisoner was not possessed of any property except £8 in money at the lime ofthe escape; evidence was given that some se- curity would have been oiTered for the debt if the Prisoner had not escaped, but the sufKciency of the intended security was very doubtful. The Solicitor Ganeral, for Defendant, contended that if the Jury thought no damage had been sustained by the Plaintiff they wera not bound to give even nominal damages, but might find for the Defendant— 5 T. R. 37, Plank v. Anderson. Berton contra, cited I Saun. PI. and Ev. 483, 2 Bing. Rep. 317, Barker v. Green. Curler, J. directed the Jury that the escape having been proved, some damage had boen established, because the PiaintifT had lost that which the Law considered one means of satisfying a debt, viz.: the body ofthe debtor. He left it to them to consider what pecu- niary compensation would satisfy that loss, and also directed them \n ascertaining the amount of damages to consider by how much the Plaintiflf's chance of getting his debt was worse by reason of the escape than if there had boen no escape. Veidict for PlaintifT— Damages £10. Cleary and Barton for PlaintifT. Solicitor General for Defendant. 18 EASTER TERM WHITE t>j. BADCOCK. Aisump^it by tho Indorsee Qirainit the mtker of the fullowing; In* Blrument, declared upon as a Promissory Nuto within the Statute. " Ton (luys after date, I protnwo to pay Mr. Nfaruiis Scully or order, tho mm df £44 currency, (or eucli oilior b^ilance of h>s account furnished,) for a Survey made for iho MiigHlratoa of tho County ofCliarlotto ofn certain piece of Lund at Saint AndrOA:), commonly railed iho Commons, as per account an- uexoJ. FroduriCton, lir^t Aujusi, 1833. '* William Dabcock. «' Account— sny £04 " Paid Shonfl', JCI23« " Uy titariiti, 7 £19 3 6 JC14 16 6 (Indorsed.) " Fretlcricton, Kith JVov. 183J. •• Pay to Stophon Wlijto, or order, tho amount of this Note of Hand. "M. Scully." The Solicitor Goneral for Defendant contended that this Instru- ment could not bo considerod a Promisnory Note within the Statute, and therefore moved for a non-suit. Chipman, Chief Justice. Ic it usiial when you may demur or can movo in arrest of Judgment for adefent appearing on the face of the Record to move for a non-suit? I know where it clearly ap- pears (hat there is no cause of action the Court will non-suit; but I have doubts if it in usiia] to do ho when the action is upon a writ- ten In«irumont, which is clearlv sftt out in the declaration. The Solicitor General cited 2 Ch. on PIdg.; (5 Ed.) 700 Note; 1 Camp. 256, and 2 Star. N. P. C. 375, to show that under any circumstances the Court would entertain the motion, and pru> ceoded to argue that the writing declared upon and produced in evidence was not a promise for a Bpecific sum, but for an amount to bo ascertained by future investigation. In Smilh,'&c. v. Night- ingale, 2 Star. 375, the promise was lor a certain sum, but being filao for a further uncertain amount, was held not within the Statute. lie cited also 4 B. & A. 679, Ferris v. Bond, Nealis v. Langen, Sic. M. S Trin. 1834, Ch. on Bills, 42, 66, and 4 M. &S. 25, Hartley V. Wilkinson. Wilmot, for Plaintiff, urged that tho amount of the Note was rendered certain by the memorandum at the foot of it. In Hartley r. Wilkinson, the condition was indorsed on the Note, and the con- Itogency affected the whole Note. In this case if there was any contingency it affected only the sum. Ckipman, Chief Justice. \ entertain a clear opinion upon the point. To make an Instrument negotiable and current, the sum to bo paid must be certain and fixed — it must be distinctly stated, to be for money, for what certain amount, and payable without any con-' tingency. Looking at this paper it docs not possess those requi- 8ite.s>-it is not absolutely for £44, but for whatever balance was really due to the payee. It is said the memorandum at the foot mnkea it certain, but if that were true why insert the contingency, and besides iho amount of the Note is £U, of the memorandum ,i*fi»«(My» '^- IN THE FIFTH YEAR OF WILLIAM IV. 19 £4i IGs. 6(^, shewing yoi more plainly thai (lie Bum mentioned in the Note was merely nominal — the real amount, more or loss, re- mcined to bo asoorlained. I cnnnider the paper as merely an agree* ment betwoon Uabcock and Scully to pay the amount of Scully's account. The PlainliiT was nonsuilcd. Jtobinson oud Wilmot for PlaintifT , , S>>licitor General fur Dofcndant. DUNN and WIIF. vs. MILLER. This wna nn Action of Treep.i'^j for nn Aisaull on Siiphronia Dunn, one of the PlairitifTj — a feme Covert. The Defendant ploadod— Ist. The General Issue, 2d. That OjTendant was lawfully possessed of a certain dwelli.ig house, and being so possessed the said Soplironia was unlawfully in the said house, and with force, Sic. makmg a great noise and disturbance, and thereupon Defendant requested her to cease and depart from said house, which she refused to do — whereupon Defendant in defence of his possession gently laid hands upon the said Sophronia in order to remove her out of the said House, as ho lawfully iniKht— which are the trespasses, &c. R eplicalioti — De injuria sua propria. The Defendant was possessed of a house in Frodericton — the Plaintiff was negotiating for a lease of it; the Defendant had sent a workman to make some repairs in the house, and while these wero going on, some of the PlaintifTs goods wore hurriedly moved into the house — furniture had been arranged in one room, and more was being carried in; when Defendant coming to the house, was in- formed of the circumstance by his workman. An altercation ensued between Defendant and Mrs. Dunn; he threatened to throw the furniture into the street; she dared him to meddle with it; and thereupon the Defendant committed the assault charged, and af- terwards left the house — Mrs. D. and the furnituro still remaining there. Evidence was given of the subsequent illness ot Mrs. D. as ground of special damage. Alter the close of the PlaintifT'a case, Wilsiot stated that a Wit- ness, on the part of the Plaintiff, was anxious to return to the stand to correct a mis-statement she had made when under examination. The Solicitor General, for Defendant, objected. Th ewitness had retired, and had communication with the parties; while on the stand she might have corrected a mis-statement, but to allow a witness under the present circumstances to make a new itatement would be striking at the root of the advantage of cross-examination. Why were witnesses excluded (if desired,) from Court but to pre- vent them from hearing the statements of each other, and by that moans making their tales agree. Such a proceeding would be useless, if they could be permitted after conversing together to return and correct their testimony. 20 EASTER TERM CUipm.7n, Chief Justice. It must be a muitor of discretion in tho Court. I will allow tlio witnoaa to curiio to the itaiid, but will nut itllow her to bo questioned oxccpt by myself. The Solicitor Genera), in opcnin;; ihe defenco, conlonded tliat (he only point to b^ dotorminud was n9 to the pofiossioii ol tho promisos. If the DcTendunt was justifiod in uiinj; any, tho alight- eft force or violence, he wua entitled to a vordint; if the viulonrtt) had beon oxceaaivo, tho PlaintifTi flhnuld havo ruplind spnciolly. In support of this ductrino ho cited Uulo v. \Vo>jd, 7 B. IMooru'd Rop. 33, Buwcl V. Purry, ftc. 1 Car & Puyno, 394. Tho Defence boing closed, Wiln.ot was about to give further tRs- timony as to tlio posacaaion, and tendered evidoncoof a Liccnco of occupation of the prcniaes Irorn Dofondant to PlointilF. It was objected by tlio Solicitor Goneral, that tho PlaintifTi hav- ing in the first instance giAon ovidoinjo of circnniatuncos rebutting the plea of Justificatio.i, wero not now ontltlod to add further testi- mony upon that point. Roe^ V. Sfni;h, 2 S'.nr. Rop. 31, Roncoe'd Ev. 139, Brown v. apjrray, Ryan & Mojdy's Rop. 254. VVilmot conirn, contended that tho PlainiifT^ caso had been di- rected professedly to the assault, and they had not attempted to onswor the Juatidcaiiun— not ono wiinesd bad boon called upon that point. Cliipman, CItirf Justice, said that ho entertained no doubt on Iho point. Tho principle i.i clear and it U a reaaon curity." m I 26 TRINITY TERM In Baylis v. Dineley, 3 M. & S. 477, Lord Ellenborough said^ " It is clear upon the face of the instrument, that it is to the preja* dice of the Infant, for it is an obligation with a penalt/ and for the payment of Interest." But I do not find any decided case, or even any dictum, that an Instrument, merely because it is by the commercial law negotiable, is on the face of it so prejudicial to an Infant, as not to admit of con- firmation when he comes of age; and if such bad been the Law, it is most extraordinary, that in the universal prevalence of such in- Btrumeuts in modern times, there should not have been an adjudged case to this effect; the authority of tho most approved writers on the Law of BiWa of Exchange and Promissory Notes is directly in favor of such contracts, falling within the general rule and admit- ting of such confirmation. The drawing, indorsing or accepting Dills by an Infant is voida- ble only, not void; and if he ratify the act after he comes of age, it will bind him. Bayley on Bills, (dth Ed.) 45, citing Gibbsv. Merill, 3 Taun. 307. and in Chitty on Bills, (8th Ed.) 23, "As the contract of an Infant is only voidable and not absolutely void, be may, by a promise to pay the Bill made after he attains full age, and before action, (2 B. &G. 824,) render it as operative against him, as if he had been of age at tho time it was made. (Taylor v. Croker, 4 Esp. R. 187.) ' The dicta of Text writers such aa tboee which I have quoted, are at the least, good evidence of what are the received rules of Law on the subject of which we are treating. In Taylor V. Croker, Lord Ellenborough applied the general rule, of Infants confirmii ^ contracts after they became of age, to a Bill of Exchange. And in another late ease, to which I shall presently more parti- cularly advert. (2 B & C. 824,) although the Judges in terms consi* dered all contracts made by Infants for purposes of trade as abso- lutely void, and not merely voidable, yet they recognized the doc- trine of the Infant when at full age, binding himself to the perform- ance of such contracts. I am therefore of opinion, that a negotiable instrument made by an Infant, is not by law distinguished from other contracts, which may be confirmed by him after he arrives at full age; and be there- by rendered binding upon him; and this being a contract not made under seal, a verbal confirmation is of as high authority in the con- templation of the Lav» as a confirmation in writing, in cases whero a written promise is n»t expressly required by Statute; and by a late Statute in England, (9 G. 4. c. 14,s. 5,) indeed, confirmations ufter full age, of promises made by Infants, must be in writing. Having come to this conclusion on the general question, I will only add with regard to the particular circumstances of the present case, thut I have not found in the English Books any authority for holding, that a contract of suretyship is distinguishable from the ge- neral run of contracts made by an Infant, and Is incapable of being confirmed at full age. The general rule is, and I think it just and IN THE FIFTH YEAR OF WILLIAM IV. 21 reasonable, that the contracts of Infants should be deemed capable of being confirmed when they arrive at full ago; and 1 should not be disposed, to limit the operation of this rule, beyond what decided cases of binding authority oblige me to do. It was argued by the learned Counsel for the Defendant, that the legal efiect of the note was to bear interest from the time when it became payable, and therefore according to Fisher v. Mowbray, 8 E. 330, it was utterly void against the Infant Defendant, and would not be made valid by a promise at full age ; but there is a clear distinction between cases, where there is an express underta- king to pay Interest on the face of a written intrument, and where it ia only allowed by the usage of trade, as in the present instance. In the latter, it constitutes no pait of the Debt or Contract, but is in the nature of damages,whicb a Jury may allow or not, according to the circumstances of the case. Interest cannot be added to the principal sum due on a Bill of Exchange, so as to constitute a good petitioning Creditor's Debt, unless Interest be specially made payable on the face of the Bill 2 B. & A. 305, Cameron v. Smith, and in 10 Bmg 257, it is said " A Plaintiffcannot arrest for Interest, unless reserved by the Bill." In the present case therefore, as there is not an express under- taking on the iHce of the Note to pay interest, it does not fall within the range ot the case of Fisher v. Mowbray, or Baylis v. Dineley, which I have referred to, and it is to be remembered that at the trial, the learned Counsel for the Plaintiff very discreetly, waived all claim to Interest, and took bis verdict for the principal only. There is still another )>oia(, on which from the impression of the Judges, in Mounten v. Illing worth, 2 B. & C. 824, I at 6rst enter- tained some doubt, viz. whether the distinction should not have been founded on the special promise after the Defendant became of age. In that case, Bailey, J. said, — " In the case of an Infant, a contract made for goods for the purposes of trade is absolutely void, and not voidable only; the law considers it against good policy, that he should be allowed to bind himself by such contracts. If be make a promise after he come of age, that binds him on the ground of his taking upon himself a new liability, upon a moral considera- tion existing before, it does not make it a legal Debt from the time of making the bargain." And per Holroyd, J. " The new promise is the sole ground of action, and not the renewal of the old one." AndperLittledale,J. ''Thecontract of an Infant under such circum- stances as the present, being void and not voidable, the promise in this case did not prove that any legal cause of action existed at the time when the action was commenced, but infancy is a per- sonal privilege, which the Infant may or may not set up, in answer to an action brought upon a contract made during his infancy. The constant course and settled rule therefore seems to be, to de- clare on the original contract, and if the Defendant pleads infancy, to state the promise made at full age in the replication, or if (bo defendant gives infancy in ovidenee under the general Issue, to i i! ! w ■ -f' -j^i 28 TRINITY TERM give the aubsequeDt promiae in evidence, and I agtin see no ground for a diitination in this respect, between negotiable instruments, and other parol contracts." The only point decided in Mounten v. Illingworth was, that the confirmatory promise after full age, must be made before the commencement of the action. Upon the whole, I am of opinion that the rule for entering a nonsuit, must be discharged. BoTSFORD, J. I concur in opinion with his Honor tbeChief Justice. The question, whether the contract of an Infant is void or only voidable, must depend upon the nature and circumstances of the case, and in many instances, must remain in doubt and uncertainty, until the Court shall have decided, whether it bs one of benefit or prejudice to his interest — a rule so variable may in some measure account, for the conflicting decisions in the books, and may have led to that general position, that the deeds of Infants are not void, but only voidable, and will admit of subsequent confirmation by them. ^Lord Hardwicke held in Harvey r. Ashby, 3 Atk. 607, that where an agreement appears upon the face of it to be prejudicial to an infant, it is void ; but if for his advantage then voidable only. In Zooch, V. Parsons, Lord Raymonds Rep. 818, the semblance of benefit to the Infant was made the ground of Lord Mansfield's decision, by which the surrender of a Mortgage by an Infant was held to be voidable only, contrary to the opinion of the Court in Thomson v. Leach, 3 Mod. 300, which made the surrender of an Infant by deed absolutely void. It was this rule by which the case of Keane v. Boycot, 2 H Bl 511, and Warwick v. Bruce, 2 M. and Sel. 205, were decided. In looking to the facts and circumstances of the case now before the Court, and supposing the contract, to be one rather of prejudice than benefit to the Infant, I had great doubt, wheiher the present action could be sustained, but these doubts have been removed by the case of Bishop v. Chamber, in 3 Car and Payne 55, which I consider much in point. The law seems settled that Courts, will support actions against infants, if they confirm their contracts after they come of age (except in the few cases of contracts with penalties, for interest, &c.) as already mentioned. I have considered all the cases with attuntion, and am of opmioa that the rule should be discharged. Carter, J * I am also of opinion that the rule for a non-suit in this case should be discharged; I B'.all not take up time unnecessarily, by reviewing all the cases on this point, after they have been so carefully gone through, by His Honor the Chief Justice. The general ruL «/hich I deduce from them, is this— that if a person afterlattaming full age confirm aeon- tract entered into during infancy, such confirmation being express and voluntary, and with a full knowledge of the privilege that the Law allows him of avoiding his former contract, such confirmation is one which may be enforced by Law. This rule seems to me so consistent, with the principles of reason and justice, that I should not be inclined to narrow its limits, more than decided cases compel IN THE FIFTH YEAR OF WILLIAM IV. 29 no ground itrumenU, ouoten V. age, muBt mtering a if Justice, id or only 908 of tbe cei'tainty, benefit or I measure may have not void, lation by 607, that rejudicial ible only, emblance ansHeld's cfant was Court in ier of an i^hich the Bruce, 2 w before irejudice ) present noved by 5, which Courts, sontracts acts with fopmion non-suit he cases I, by His ICO from m aeon- express that the irmation me so [ should I compel I me to do. Much difficulty has arisen on this point, from the use of the terms absolutely foid, and voidable, as terms of clasaifioation for the contracts of Infants. Now it would seem quite clear, that a con- tract which could be pronounced absolutely void, in the full extent of the meaning of those words, could not be confirmed by any sub- sequent acknowledgment or promise, and would be one, of which the Infant ..imself conld not take advantage, as stated by Mr. J. Best in Goode v. Harrison, 5 B. & A. 147. It would therefore seem reasonable, that the Court should only pronounce the contract of an Infant absolutely void, where they can pronounce from the terms of tbe contract itself, that it must be prejudicial to the Infant; and that where they cannot from the terms of the contract itself, pro- nounce whether it is advantageous, or prejudicial to him, they will leave it to his own election, after he attains full age, to decide whe- ther he will avail himself of the privilege the Law allows him, and avoid his contract or not. Consistently with this view of the case, I find the only oases m which it has been decided, that tbe contract of an Infant cannot be confirmed by a subsequent promise after full age, in the cases of an obligation, with a penalty, and for the pay- ment of interest, Baylis v. Dioely, 3 M. & S. 477, and Fisher «. Mowbray, 8 East. 330. There the Court distinctly held that the obligation was void, because on the face of the instrument itself, it was clearly to the prejudice of the infant. To apply these rules to the present case — This Note is not for the payment of interest, and can the Court by looking at the note say that its efiect must be to the prejudice of the Infant? I think certainly not. We find then that alter he attains full age, being aware that he was not legally liable on account of his having been under age when he drew the note, he voluntarily and expressly pro- mises to pay it. Under these circumstances, it occurs to me that he is in law bound by that promise, and that therefore this rule must be discharged. Parker, J. I am free to confess, that during the trial and subse- quent argument, and until I had carefully examined the various cases on the subject of Infants' contracts, the inclination of my mind was in favor of the Defendant; yet I am now happy to say on full conBideration,ray opinion is in accordance with that of the Chief Justice and the rest of the Court. It is singular, that among the variety of eases, commencing with the earlier Reporters, and extending down to the present time,none are to be found in which the point in question has come up for ex- press decision in Westminster Hall, although one would suppose it must have frequently occurred in the ordinary business of life: Upon more than one occasion however it has been adverted to, and I shall cite some authorities, in which the Courts of England have treated contracts like tbe present, if not strictly speaking capa- ble of ratification, yet as affording a sufficient consideration to render valid a subsequent promise made for their performance. The contracts of infants have been divided into three classes, viz. good, void and voidable. The first, such as bind the Infant from the 30 TRINITY TERM time of the making, requirina no affirmance or ockaowledgment, ■nd admitting of no avoidance at full age, extend not beyond ne- oeaaariee, unleas indeed (he general prmciple laid down by Lord Mansfield be adopted — that if an agreement be clearly for the be- nefit of the Infant at the time, it shall bind him. Muoh discussion has taken place as to the bmding nature of a marriage settlement by an Intent, with the consent of parents and guardians, in which a good deal of general learning aa to the acts of Infants may be found. 3 Atk. 610. a Eden. 72, 1 Bro. C. C. 106, 18 Ves. 275, 5 B. P. C. 670, 2 T. R. 159. In the second class, viz. such as have no operation, being wholly incapable of confirmation by any promise at full age, the Court have placed bonds made with penalties, for which a double reason is given, that Infants are not bound by forfeitures, and cannot be made chargeable withmterest, Cro. Eliz. 700 & 920, 8 East. 330, 3 M. & S. 477, Co. Litt. 172 a. 10 Bing. 257; and the rule would appear by the reasons giren in these cases, to comprehend al! con- tracts, to the noofulBlment of which penalties are annexed, or by which interest is expressly secured, tho' before it is extended so far, a further consideration would be highly desirable. Warrants of Attorneygmade by Infanta have aUo been considered void and set aside by the Court. Rep t. Wards, 376, W. 61. 1133, 1. H. B1.75. In two old caRCs, In Cro. Car. 502, & 3 Mod, 301 , a rent charge and a surrender of lease made by Infants were held void, but from more recent decisions it would seem that such were capable of ra- tification. Hudson V. Jones, 3 Mod, 301, and Zooch v. Far- sons, 3 Burr. 1794, and the cases there cited. All contracts o( Infants other than those abovo enumerated, have either by express decisiona been included in the third class of voidable, or remain to have their department assigned to them as they may seem to fall, either in this or the preceding division. I speak of voidable contracts under one head, although Bome,of the nature of tho present, might with more propri- ety be termed affirmable, as not requiring any act to repudiate them, but needing an express con&rmation and promise at full age to render them obligatory. There is manifestly a great want of precision in the language of some of the learned Judges, as their opinions are reported; the distinc- tion between void and voidable is often not adverted to ; many contracts are spoken of as void, not because they were incapable of,but because they had not received, an express confirmation, 1 Vern. 132, 2 M. & S. 205, and the same case in error, 6Taun. 118. The language of Bay ley, J. in 2 B. & C. 824, already adverted to by the Chief Justice, is remarkable, and that of Mr. J. Littledale is to the same effect. After the full review which the different cases have already undergone, I will not take up time by again going over them. 1 come to the same conclusion as His Honor, that in whatever way the Courts may have ex- pressed their meaning at different times, the general rule deducible from all cases is broadly this— that the contract of an infant is not absolutely void, but voidable or afHrmable at his election, the few instances of valid and absolutely void contracts being exceptions. 4 Bae. Abr. 354, Scr. 938 & 690, Fitzg. 175 & 275, 2 Atk. 34 & 243. The reasons urged by the learned Counsel for the Defendant for making thepresent case an exception to the above rule, are : IN THE SIXTH YEAR OF WILLIAM IV. 31 lat. That the contract on which the action is brought is a negotiable instrument, and consequently liable to be enforced by a person not on* of the original parties. 2nd. That it is neceasarily a contract lor payment of interest. These objections are on the face of the instrument. Sd. That the Defendant did not himself receive value for the note, but signed it as a surety for his father, the other Promiser and a Co-depend* ant. This objection is to be gathered from the evidence. As to the first ob- jection, no decision, or even express dictum has been cited at the bar, or have 1 been able to find ; nor indeed is it laid down in any of the text writers that the Bill or Note of an Infant must be considered void, on account of its negotiability. It is not essential to a promissory note that it should possess this quality, nor does that make it necessarily prejudicial to an In- fant. It might indeed be a good ground for the Defendant's availing him- self of his legal right, but I can see no good reason for saying, he shall not have the option to affirm it if he please, when he comes of age. When the subject has incidently come before the Courts, no such distinction as this has been drawn, and in some of the cases to which I shall refer as recogni- zing the defendant's liability, the securities appear to have been negotiable. The expressions of Mr. Justice Ashurst in Cockshott vs. Bennett, 2, T. R. 766, and of Lord Ellenborough iu Taylor, vs. Croker 4 Esp. 187, have already been noticed. In Holmes ws. Blogg as reported in 1 B. Moore 468, Copley serj., in ar- guing on the effect of infants, contracts, contrasting such as require soma act to disaffirm, with those which must be expressly aflirmed, considers en- gagements such as Bills of Exchange and Promissory Notes, which ex- pose the Infant to losses, capable of ccnflrmation, by some positive act at full age. In Bishop v. Chambers 3 C. & P. 55, which was an action on a negotiable note, and the pleadings were precisely the same as in the pre- sent case, evidence having been given of an acknowledgment by tho De- fendant and a promise of payment, some objection arose to the Plaintifl's recovery by reason of an alteration appearing on the face of the note, and Dcnman of Counsel for the Plaintiff, ivas desirous that the whole case should be left to the jury; Lord Tenterden C. J. says— "I will ask the jury whether they they think the word may is in the same handwriting as the rest of the note, but the effect of the Defendant's admission asanatBer- ing the plea of infancy and the plea of the ijtatute of Limitation is for the court and not lor the jury." A verdict was found for the Defendant on: account of the alteration, but so far from the promise being considered imperative by reason of the nature of the security, no objection was made on that ground,and a rule nisi for a new trial was granted on the question whether the admission of the Defendant was not sufBcienI, to entitle the Plaintiff to recover, on the account stated. In Jeremy's analyt. Dig: 1834 p. 100, the case of Hunt vs Massey is ab- stracted from 3 Nev. and Man. 109 as follows^-" Where after attaining lull age, the party directed a third person to pay the amount of a Bill accepted during infancy, from funds in his hands held that it was not necessary to declare specially, and that the letter would be presumed to have been written on the day of its date." The full report has not yet reached this country, but so far as we can judge from this short abstract, the afHrmability of such a contract was not questioned. The best text-writers on Bills of Exchange and Promissory Notes, viz. Mr. Justice Bayley and Mr. Chitty speak distinctly of such contracts, though made during infancy, becoming available by virtue of an express promise to pay. A very late author Mr. Bvles in his Treatise on Bills, B m TRINITV TERM 11. though be speaks of Infants' Acceptances and Contracts made in tlie coarse of trade, as absolutely void, yet says " the moral obligation to fulfil them will support an express promise to pay, aitor he is of full age and before action brought." There are cases also to shew, that the promise in order to be binding, mutt be voluntary, and with lull knowledge of legal rights. The promise in the present case fully satisfies these requisitions, and I do not \hink, the Defendant can now avail himsell ol the objection to the nature of the Se« curity. to avoid the promise he has so deliberately made. The case ol Cameron & al v. Smith, 3 . B. & A. 305, is a sufficient answer to th necond objection. — The note here is certainly made payable at a fixed >! ly, which arrived belore the Infant attained his majority, but no interi-.^' is expressed, and though in practice it has been rustomary to allow interest as a matter of course, after the day of payment, yet it ap. pears clear, that such is not necessarily payable on an instrument in that form, but allowed by the Jury, only in the value of damages. — They are not bound to give it in every case, and in the present, none has been al- lowed . As to the last objection, which does not appear on the face of the con- tractj but arises out of extrinsic evidence, — It has been argued, that a!" though contracts of an uncertain nature as to benefit or injur/ may be af- firmed, yet that the contract in the present case, was entered into under circumstances, which made it necessarily prcjudical, and the Court seeing this> are bound to declare it wholly void. By ail the authorities it appears, that this is a question for the Court, and not for the Jury, and it may well be doubted, whether the rule is not confined to those cases in which the ^objection appears on the lace ol the instrument. In Bacon's Abridg. vol. 4. p. 360, the rule is thus laid down~"That for the better security and protection of Infants, the Law has made some of their contracts absolutely void, t. e. all such in which there is no appa- rent benefit or semblance of benefit to the Infant ;" but it is evident from the subsequent passage in the same Book in which the question whether the lease ol an Infant not reserving rent be wholly void or not, isdiscussed, that no judicial determinations had gone to the full extent ol the above rule ; and many sound reasons are given lor holding it even for the Infant's benefit, that he should be allowed when becomes of age, and is capa- ble of considering over again what he has done, either to ratify and af** firm his contracts, or to break through and avoid them. — This power being a sufficient protection to him against imposition, and the full ex« ercise of it, being essential to his freedom of judging for himself. From the language of Lord Raymond in the well known case of Holt V. Ward, Strange 969, cited and relied on by Mr. J. Dampier in 2 M. ^ S. 210, the Infant has equally the power of affirming the contract whether it turn out to his prejudice or to his benefit— and from the manner in which Lord Ellenborough expresses himself in the case of Baylis v. Dine- ley, 3 M. & S. 4S1, it would appear that he considered the face of the instrument as that which was to govern the Court, and it is to be remem- bered in using these qualified terms he refers to the words of Eyre, C. J. in Keansv. Boycot, 3 H. Bl. 515, which would admit of a broader con- struction. The language of Best, J. as just cited, by Mr. Justice Carter, is similar to that ol Lord Ellenborough, and I think afiords the safest rule for us to go by, Taking ths whole matter into consideration, I am not disposed to carry the doctrine of void contracts more beyond the decided cases than it has been extended by this rule in its qualified terms, aad there being* nothing iiivi I IN THE SIXTH YEAR OF WILLIAM IV. 33 lie course uifil them 11(1 before binding, promise hink, the ^ the Se' t answer able at a I but no umary to yet it ap. It in that They are been al< the con- that aN ay be af- to under rt seeing B Court, ule is not ce oi the That for some of no appa- lent from whether iscussed, he above ! Infant's is capa- f and aN is power iuM ex. of Holt 2M. ^ ivhether nner in . Dine- > of the •emem- 8, C. J. ir con- similar 5 for us 3 carry I it has othing more in the presciit instrument than the ordinary words of a Promissory Note, I think we may, without touching on any of the standing cases, or violating any principle necessarily doducibia therefrom, treat it as the security of the Defendant, which ho might by his promise at full ago, ren- der himsell liable to pay; and in this view ol the case I do not ieel bound to say what ought to be our decision, had it appeared on the face of the note, that the Infant Defendant merely signed it as security; or whether considering the relative situation of the two Defendants, and the nature of the consideration, the transaction was attended with no benefit or sera- blance of benefit to the Infant. It was clearly a Note for a lair and valuable consideration; the aflir- mance of it at full age was voluntary and deliberate — it recognised the consideration ; it was made with a full knowledge of legal rights, ai d con- tained a positive promise of payment, by which I think the Defendant must be bound, and that the rule for entering a non-suit should be discharged. Fisher lor Plaintiff. Wilmot for Defendant. THE QUEBEC AND HALIFAX STEAM NAVIGATION COM- PANY V. CUNARD & ALLEN. This was an action of assumpsit for Money had received, Plea General Issue, tried before Botsford, J. at the Northumberland Circuit in 1834. Verdict for Defendants. It appeared in evidence, that the Defendants were appointed agents ac Miramichi by the subscribei's to the above-named company resident there, previous to the incorporation of the Company to collect, receive, and re- mit, the amounts oi the several shares to Quebec, where the same were required to be paid, the number of shares at Miramichi was at first 97, whereof 6 were abandoned, of the remaining 91, some paid the first In- stalment to the Defendants, others remitted the money to Quebec, and some jointly gave Defendants fiills on Quebec, for the aggregate amounts due from them; part of the subsequent instalments were paid in like man- ner, the Defendants took promissory notes from several expressed payable to them "agents for the Quebec and Halifax steam Boat company,'* at spe- cified periods, "with such sum in addition as might be necessary to make good the remittance to Quebec;" some of these were paid, others remained unpaid, and were handed over subsequently to Plaintifi^s solicitor. When the Company commenced business, the Defendants were their Agents at Miramichi, and settled the disbursements there ot the Compa- ny's Steam Vessel, lor which services they charged commission and ren- dered accounts stating the same at each voyage. A settlement between Plaintifls' agent from Quebec and the Defendants, was made on 15th Oct. 1833, at which time the Defendants rendered an account current in which was the following item. "Agency and compensation for trouble in attending to the business of the Association on 91 shares, at £25 each £2,275 at 5 per cent — £113 15s." The account was settled except this item which was reserved for future consideration, and this action was brought to recover the amount so re- tained. At the Trial Evidence was admitted of the Defendant's services as the general Agents of the Company, and the Defendants claimed to retain the amount as a compensation for their services generally rendered to Plaintiffs. His Honor left it to the Jury to consider if the Defendants were the agents of Plaintiffs, but did not distinguish between their capacities as agents foe the Plaintifi"and agents for shareholders. ! 34 TRINITY TERM In Michaetraaa Term, a rule niai was olitairted, to ad aside tha verdict and irrant a new trial on the rullowinif grounds:— iat— The admiasion ol improper evidence on the part of Defendanta. 3J— The misdireu;i>',n of his Honor the Judge. 31— That the verdict wos against evidenoe. The pointa were argued in Hilary Term, and stood over tor the opinion of the Court until thia Term. CuiPM&N, Chief Justice.— The question in dispute between the Partiea in thia cause, turned upon the right of the Defendants to retain the sum of £113 15). mentioned in the account stated by them on 15th October 1833. The ahares mentioned in this charge it appears from other evidence were the shares in the capital siock of the Quebec and Halifax Steam Navigation Company, (the Plaintiff in the cause) that had been subscrib- ed by Persons at Miramichi, which shares bo subscribed amounted to the number ol 01. An obvious remark upon this charge upon the first reading of it in the manner in which it is framed, is that there seems to be neither justice nor propriety in making the compensation lor trouble in attending to the bu- ■mess, that is, the general business ol the Association after it was formed, tu be rated by a per centage on a certain number ol Shares which contri- buted to form it, especially as it appeared from other accounts, which were given in evidence that the Defendanta uniformly charged, and were nl'iowed a commission on all their receipts and disbursements in attending to the business of the Association, [after its business commenced] at Mirami- chi. These commissions, thus charged and allowed, must be considered as the compensation, for attending to the business of the Association alter it went into operation. There can be no propriety in charging a per centage, on the specific charges subscribed at Miramichi, unless it be tor Agency in collecting the amount of those shares, and remitting the same to Quebec. And here arises the question whose agents were the Defendants in performing thia service. Their appointment as agents took place at a meeting of the Subscribers at Miramichi on the I2th October, 1830, more than five months before the act of Incorporation of the Company, aud they were at that meeting elected by such subscribers by ballot. Their duty under thia appointment appears in the minute ofa previous meeting ot these subscribers on the 8th October which declares the ob- ject of the meeting which was to be hold on the 12th, to be ''that of " appointing an Agent to the Shareholders in Miramichi, whose business " it shall be to receive the Instalments now due, and to take notes in hia '* own name for the balance and to transmit the sum when collected, to ■' the Treasurer at Quebec, pursuant to the resolution of the Quebec *' Committee." It appears from the evidence of W. Stevenson that the resolutions of the Quebec Committee required "£25 net per share free of all deductions to be paid in Quebec." At the above mentioned meeting on the 12th October, it was resolved " that the Miramichi Shareholders should not be liable for an| more than "the sum of £25 for each Share subscribed, except any loss or exchange "inremitting to Quebec." The Notes given by the Miramichi subscribers for their respective ba- lances were in the following terms, "being balance due by me for— shares in the Quebec and Halifax Steam Boat Company, with such sum in "addition as mav be necessary to make good the remittance to Que- bec." All these things shew incontestibly that it was the understanding and ■tipulation of the Miramichi Subscribers before the Incorporation of the IN THE SIXTH YEAR OP WILLIAM IV. d5 Company! that £25 per aliare without any deduction was to bo paid into the handa of the Treaaurer at Quebec. The act of incorporation pasted on the 31st March. 1831, speaks the same lanjfuage, for seo. 2 provides, that the shares shall be £25 eacli to be paid "into the hands ol thaTrea> surer ol the said Company;" indeed it ia evi'lent that any deduction Irom the amount of the shares paid at Quebec would have been pro tanto a di- minution oi the capital stocl( of the Company which it is obvious was in- admissible. It is clear I thinic, that :i wm considered at the time the Agents wereap* pointed, that the collerting the amount of the Shares at Miramichi, and remittinGT the same to Quebec, should be a gratuitous service on their part, so far as they shonid be called upon to parform it, for m many instan-. ues the Subscribers made their own remittances to Quebec. Nothing appears upon the proceedings of the meeting of the Miramichi Subscri- bers with regard to compensation for the service. Johnson in his testi- mony states, that nothing was said about commission at the time — that he was a candidate lor the appointment of agent — that he expected if ap- pointed agent for the Miramichi Subscribers lie should be appointed Gene- ral Agent for the Company in Miramichi, which was his sole object in seeking the former appointment. The conduct of the Delendants themselves shews clearly that they did not consider themselves entitled to any compensation for this service of collioting and remitting the shares, at least from the Company: In several of their letters they enclose remittances lor shares to Quebec, and say nothing about commissions ; these remittances were made before the act of Incorporation : In June, 1831. they state an account with the Com- pany after its Incorporation,and give credit (or amount received on Shares, and charge a remittance for the lull sum without making any charge or deduction for commission : In subsequent accounts they charge commis- sion on receipts of freight, &c. and their disbursements for the Conpany, and still make no charge of commission on the shares; and it is not until their last account of 15th October, 1833, after a lapse of nearly three years, that they bring forward this claim, and it does appear to me that they sre not upon any principle entitled to it. It remains to apply this view of the case to the proceedings at the trial. It appears to me that these proceedings were much complicated and per- plexed, and that the attention of the learned Judge was for the greater part of the time kept away from the true merits of the case by the Defend- ants withholding till a very late period of the Trial, the production of the account of the 16th October, 1831. I think that all tlie evidence which was given as to the trouble which the Uefendants were put to in attend- ing to the general business of the Company was entirely irrelevant to their claim for a commission on the amount of shares as developed in the ac- count of 13th October 1833, and was therefore inadmissible. Moreover, the point that the Defendants were (in the business of collect- ing and remitting the shares) to be viewed entirely in their original cha- racter as Agents of the Miramichi Shareholders only, and therefore were not entitled to make any charge for this service against the Company, was not put by the learned Judge to the jury so distinctly, as upon full consid- eration I think the case required. On these grounds I am of opinion, that the rule for a new Trial should be made absolute. Carter, J. — This was an action for money had and received by the De- fendants to the use of the Plaintifls, and the defence set up by the De- fendants was that they were entitled to retain £113 15s. the sum in question as Commission at the rate of 5 per cent on the whole amount of 91 shares of f'^j each which they were employed by the Company as i ii ii iniiiih III I ! iiili ^ll 36 TRINITY TERM itheir Agente to collect. To establish this defence it vra\i\d he necessary to shew two things : Ist, that these Defendants were the Agents of the Compuny for this purpose; and as such Agents were entitled to a com- mibsion of 5 per cent on the amount of shares received ; and 2dly, that this money claimed to bo retained by the Defendants was part of the monev received by them as such Agents on account of the 91 shares. I( there has been any difRculty in considering this case it seems to me to have arisen mainly if not entirely, from confusing the characters of the Defendants in the collection of the shares where their agency was confined to the 91 shares, and that in which they afterwards acted, when they attended generally to the concerns of the Company, by superintending all business connected with the Company and the Boat at Miramichi. From the evidence it seems to me quite clear, that at the time when the agenc> of the Defendants was confined to the 91 sharesj they were not the Agerits of the Plaintiffs. It is quite clear they were not originally appointed to act in that capacity by the Plaintifl?, nnd every thing which was proved respecting what took place at that time is perll'ctly consistent with the fact of their actiPf; as Agents for the holders of the 91 shares, while the regulations of thr Company, that the whole and complete amount of every share was to be remitteJ and made good at Quebec, is wholly inconsistent with the fact of thrir having appointed agents at Miramichi, who were to have a right to retain a certain proportion of each share. The fact too of the Defendants having rendered accounts in which commise;inaI form it clearly was a writ of fieri facias; but m its altered form where it purports to be an alias, it seems to me to be nothing more than a piece of parchment issuing from an Attorney's office, and carries with it no authority as a writ. As welt might the Attorney have made such alterations and interlineations as would have transformed it into a cap. ad sat, and offered it as a justification for the Sheriff in making an arrest. The 2d document was an exemplification of a writ of fieri facias against Bishop at the suit of Banks, which appeared by the Sheriff's indorsement not to have been received till the 16th Aug. 1834, whereas the seizure which was the ground of this action took place in October, 1833. It was proposed to shew by the Sheriff's book, tliat the writ was in fact received IN THE SIXTH YEAR OF WILLIAM IV. 39 on the 16th Aug. 1833, but this evidence was rejected by His Honor the Chief Justice as tending to falsify a record. I see nothing in this case to make it an exception to that which is well known as a rule of evidence, and which is distinctly recognized by Lord Ke- nyon in a case of Reed v. Jackson, 1 East. 357, where it was attempted to shew by other evidence that a verdict which had been entered generally, had been so entered by mistake of the ofHcer, instead of having been en- tered on a particular plea. Lord Kenyon in his judgment, says, '■ The Evidence oftered by the Defendant went to impeach the authenticity of a record, and therefore was inadmissible.'' This case is a stronger one, inasmuch as the part of the record which is sought to be contradicted, is an entry made by the very person who now seeks to contradict it. I think His Honor the Chief Jnstice was right in refusing to admit the evidence offered in both cases, and that this rule must therefore be discharged. Parker, J. — I think, on both the points which have come before the Court in this case, the Chief Justice was right in rejecting the evidence offered at the trial. As regards the first execution, had the question merely tUTDcd on the effect of erasures and interlineations, it would have been a matter of consideration whether they were in material parts, and at what time made; Crowlher v. Wheat, 8 mod. 243 — 6 com. dig. 290; but when it appeared that what was produced as an alias fierijacias, had in fact been the original^eri /actas, which had as such been already in the Sheriff's bands, [ think it was properly treated as a nullity; and could no more warrant the Sher- ifTs proceeding, than if it had been a mere blank. In 2 Dowl. P. R. 745, a summons originally issued into Middlesex but altered to Surrey without reseaiing, was treated as a nullity. This new doubt is a case of great hardship so far as the Sherif! is concerned, but if the Attorney has put into his hands to exe< cute that which purported to be the writ of the Court but in fact is not, he must have his recourse on him. The nature of the Sheriff's office exposes him to much risk; nothing perhaps more exemplifies this, than the decision in Lake vs. Billers, 1 L. R. 773, fully confirmed by Martin v. Podger, 5 Burr. 2631 and 2 BI. 701, that in an action by third persons against the Sheriff for seizing goods under execution, he must not only shew a good execution; but a judgment to warrant it. A'lother objection in the present case as strongly put by the Solicitor General, is that there is no original Execution remaining to warrant the award of an alias, but the first ground is I think sufficient. With regard to the second Execution offered in evidence by the Defendant; I think the Indorsement made by the Sheriff of the time of receiving it, pursuant to the direction of the Provincial Statute of Frauds, 26, Geo. 3, c. 14, s. 13, was conclusive. To allow evidence at the trial on the part of the Sheriff to contradict this, would in effect render nugatory that which the Legislature has provided for the better manifestation of the time of the Elocu- tions coming into his hands. Besides in the present case the writ had actually been'returncd (o the Court; and was with the Indorse- : 111 I I "in hi ■:i';i ^l il 11 I 11! m 40 TRINITY TERM ment thereon exemplified as a record, which on clear principles of Law, cculd not be contradicted by parol testimony. Upon a proper application to this Court, shewing a mistake in the Indorsement, an amendment might, I conceive, have been allowed, 1 T. R. 782; and the Defendant, who must have been aware oflhe necessity ofthis evidonce, should have applied before the trial to have the error, if such it were, corrected. Chipman, C J. — I remain of the samo opinion I expressed at the trial. The Sheriff in an action by a third person must shew himself right in omnibus. That which purported to be a writ was a nullity. The 2d Writ was a record taken from the files of the Court, and exemplified under the Seal of the Court. I had no hesitation in rejecting evidence to contradict its contents. No evidence can be admitted to contradict a record. The Rule nisi must be dis- charged. The Solicitor Genera! and Wilmot for PlaintifT. Dibblee, Wetmore and Berton for Defendant. FOWLIE V3. STRONACH and ANOTHER, Administrators of English. In this case a Rule Nisi was obtained in last Michaelmas Term, by JV. Parker and fVilmot for Deft ndants, to set aside tho Writ of Inquiry for the Assessment of Damages, and the return thereto, for defects and irregularities apparent on the face of them. The Solicitor General and J. A. Street shewed cause in Hilary Term. Cur. adv. vult. until this Term, when the Judgment of the Court was pronounced. BoTSFORD, J. — It appears that a Writ of Inquiry for the Assess- ment of Damages was issued, directed to the SherifTof the County of Northumberlaad, and to the Justices assigned to take the assi- zes in and for the said County, bearing date the twelfth day of July in the fifth year of His Majesty's reign, and returnable the second Tuesday in October then next following. That the SherifT was commanded to summon a Jury to appear before the said Justices of Assize, who were commanded to certify the Inquisition: and it appears by the return that the Inquest was holden before the Jus- tice of Assize who signed and certified the same. It is contended by the Counsel for Defendants, that the Writ ought to have been directed to the SherifTalone, who is the person designated by law to hold the Inquest — that the Judge at Nisi Prius IS only an assistant to the Sheriff, by whom the return ought to have been made. The irregularity is admitted by the Counsel for the Plaintiff, but it is contended, that the same was waived by the Defendants, whose Counsel were present, and who attended on their behalf, before the Judge of Assize on the taking of the Inqui- sition, and by taking subsequent steps in giving notice of an inten- ded motion to this Court to set aside the Inquisition, on the ground of improper rejection of Evidence by the Judge of Assize. IN THE SIXTH YEAR OF WILLIAM IV. tl principles mistake ia have beea have been ied before pressed at lust shew writ was ourt, and silation in lence can 3t be dis- '" English. las Term, Writ of lereto, for in Hilary It of the I Assess- 9 Gountv the assi- Y of July e second riff was slices of : and it the Jus- ie Writ I person at Nisi n ought Counsel ived by ided on Inqui- I inten- ground To this it is onswered, that the proceedings are defective, and cannot be amended, cured, or waived. With respect to the Writ of Inquiry and the Return thereto, I am of opinion that they are defective — that (ho Judge of Assize had no power, neither could he derive any, under the Writ of In- quiry— that he could only act as an Assistant to the Sheriff, agree- able to what is said by Holt, Chief Justice, in an anonymous case, (12 Mod. 610) « A Judge at Nisi Prius upon trial of a Writ of In- " quiry, is only an Assistant to the Sheriff, and has no Judicial " power." The Writ of Inquiry and proceedings under it being defective and not merely irregular, I am of opinion that they could not be waived by any of the steps taken by the Defendants. In Massey and Wilson, 5 T. R. 254, a distinction was taken be- tween a mere irregularity in the mode or lime of the proceedings, and a* defect in tiie proceedings tbemselves, that the latter kind could not be waived by the adverse party, though the former might, and this distinction was allowed by the Court. Carter, J. — This was a motion to set aside a Writ of Inquiry, which had issued to assobs damages (after Judgment on demurrer) and the Inquisition thereon, the action bein? in covenant on a lease. It appeared that the Writ was directed to the Judge of Assize and not to the Sheriff, and that it was executed before the Judge of Assize, and the Inquisition was under the hand and seal of the Judge of Assize — and that the Defendant appeared and made de- fence at the execution of the Writ. It i|!l III;, ,:, ■■L \h m TRINITY TERM before they are upon the record. In all such cases the Court must exercise a sound discretion, and in one like the present should cer- tainly not interfere to deprive the PlainUflf of any benefit which he might derive from those statutes. Indeed I am of opinion that the Court would, if the dafect were amendable, allow the Plain- tifT to amend, although he has made no direct application for leave so to do. My reason for thinking the rule obtained in this case must bo made absolute, is, that the defect is of such a nature as cannot bo waived, and would not be aided by any of the statutes of amend- ment or Jeoffail; that if the Plaintiff proceeded to enter up his judg- ment it must be erroneous; that seeing this the Court will not allow him to incur useless trouble and expence, but in order that he may have his damages properly assessed, will set aside the Writ and Inquisition. H is clear from all the authorities, \hat there is a great distinc- tion, between a defect in the proceedings and a mere irregularity; i' ifermay be waived, the former cannot be. Sell. Pr. 100. 5 ; .-I, '>'>4, 4 T. R 349: Mr. Sellon says, "The time of taking I ^.' . .'''^,40 of any irregularity depends on the nature of the defect, whether it be such as vitiates the proceedings in iolo so as to ren- k-*- them i:ul) and void, or only such an irregularity as may be cures, r w... oJ by some subsequent act of the parties, for there is a distinclucr; Lii:./een a defect in the proceedings and a mere ir- regularity." In 1 Dowl: P. R. 29, Mr. J. Taunton says, "there is this dif- ference between an irregularity and a nullity, — an irregularity may be waived but a nullity cannot." In the present case a Writ of Inquiry has issued, directed to the Sheriff*, and the Judge of Assize, by which the Sheriff* is di- rected to summon the Jury and the Judge to make the Inquiry, and return the Inquisition under his hand and seal. The action is covenant in which the damages are to be assessed in the ordina- ry way, and not debt on Bond with breeches assigned, for which a partit ular mode of Inquiry is appointed by statute. We are to determine whether the Writ and the proceedings thereon are a mere nullity or only an irregularity. As a rule was obtained for having the Inquisition taken in pre- sence of the Judge at the circuit, the first point for consideration is, whether that circumstance makes any difference in the nature of the proceedings on the record. It appears clearly from all the Books of practice, that the Writ and Inquisition are precisely the same, whether taken in presence of the Judge or not : The Sheriff* is the officer in either case, in whom the judicial power is vested, and the Inquisition is returned under his hand and seal, and those of the jurors. In 12 Mod. 610, Holt, C. J., said, "a Judge of Nisi Frius upon trial of a Writ of Inquiry, is only an assistant to the Sheriff, and has no judicial power." in this Province the Judges sit at Nisi Prius under the act of Assembly, 26 Geo. 3, c. 8, by which they are empowered to try causes brought to issue in the Su- preme Court. Any other power by them to be exercised on the i IN THE SIXTH YEAR OF WILLIAM IV. 43 Circuit, must be derived from the eatabliihed ptaetioe of the Court, or some special enactment. The Sheriff, where he is not an interested person, is the known offi- cer of the Court to whom the duty of Inquiry of the Damages in or- dinary cases, as well as the execution of other Writs, must be assign- ed, and we have no power to substitute the Judge or any other person; we can no more I conceive award a Writ to the Judge to make the inquiry in ordinary cases, than we can authorise the Sheriff to do it under th? stat. of Wm. 3d. relative to Bonds. The Sheriff undor the Writ now before us was fundus officio after re- turning the jury, if he appeared at the Inquisition, it was wholly without authority as the Writ gave him none: the Judge and not the Sheriff has the judicial authority by the Writ to swear the Jury and Witnesses, and he alone has made the return. I cannot but think the whole proceedings were coram non judice, and are conse- quently defective. In support of this opinion I find it laid down in 6 Com. Dig. 289, " If Writ of Inquiry be executed before him who has no authority, it is error as in an Inferior Court if it is di- rected to the Serjeant at Mace, and is executed before the Mayor who is Judge of the Court, Yelv. 69." In the case in Yelverton, the Court said, "An Inquiry before the Mayor is not warranted by any Writ, and by consequence judgment to recover such dama- ges placed before a wrong ofKcer is erroneous." In Comyn, it is further said, *< If a Writ of Inquiry is erroneous it shall not be amended, but the Plaintiff may have another writ." In 2 Wils. 378, — An Inquisition taken before two under-Sheriffa extraordinary was set aside, the Court holding that the High Sheriff could appoint no more than one under Sheriff extra. In Blakamore's case, 2 Rep. 310, it is held that misprision of a Clerk to be amended did not extend to a case where the Clerk mistakes the form of the Writ. The case of Grant vs. Bngge, 3 East, 128, is important to shew that a Writ directed improperly to an officer not accustomed to receive such would be quashed on motion quia improvide emanarit, and would not justify the officer who took upon him to execute it. In the Queen vs.Tuelein 1 Salk, 51, Lord C J.Holt and Powel & Fowys J. say, that though a misawarding of Process on the roll might be amended at common law of the same term, because it was the act of the Court, yet if any Clerk at common law issued out an erroneous Process on a right award of the Court, that was never amended in any case at common law. Some cases have been cited of Amendments in Jury proceas, such as the distringas and vmiri after verdict; and it has been ar- gued that the statutes of Jeofiail curing defects in substance as well as form, extend now to cases where judgment is given by default, confession or on demurrer, as well as those after verdict. I have carefully examined the statutes of Jeoffail, and find that the position is not exactly correct*, by stat. 4 8(,5, Ann. c. 16, it is true all omissions or defects which were then cured after verdict were equally cured by judgments of confession, default, &c.; but it is not until the statute 5 Geo. l,c. 13, that defeota in sub- ■'i 'ip! liJl I II i! ! >!';!;■■■■; i K'i' TRINITY TERM stance injudicial Writs are aided; and this is expressly confined to cases arter verdict. But independent of this statute, there is a great distinction between Writs o( venire, &c. which do not convey the power under which the trial is had; and Writs of Inquiry which are the direct authority to the officer for his proceeding. In Crowdervs. Rooke, 2 Wils. 144, where the cause was tried at a certain sitting, subsequent to that for which the nisi prius Re- cord, &c. were made up, the Court considered the trial as coram nonjudice, refused leave to amend; but ex officio awarded a venire de novo. Two oases have been cited from Strange's Reports, in one of which p. 878, it is said the want of a Writ of Inquiry is aided by the statute of Jeofails; and the other P. 1077, where (he Writ of Inquiry had been lost, and the Court made a rule for a new Writ and Inquisition from the Sheriff's notes. Both cnses are very loosely reported, and the first contains no statement of the pro- ceedings, nor does it inform us of the nature of the action, or how the damages were assessed, or the record made up. The last turned evidently on the ground thai the proceedings had been re- gular, though the Writ and Inquisition were lost: and the only ground on which I can conceive the first to have been decided, is that the Court would presume that a Writ had issued, and that it was a proper Writ; but we can make no such presumption here as we have the defective Writ before us, and can presume no other. In truth this is not the case of a mistake or misprision of the Clerk, but an intentional application of a Writ provided by statute for one purpose, to another, for which it is not warranted; I say intentional, for the FlaintifTs Counsel at first insisted that the Writ was proper for the purpose, and according to the latest book of practice, though he is now satisfied he was mistaken. The rule to quash the Writ and Inquisition, must I think be made absolute, but without costs : If we do not so interfere what can the Plaintiffdo? It is not a case in which the Court could assess the damages, for supposing that we have the power, which may be questioned, when the provision of the act 26 Geo. 3, c. 21, and the uniform practice in this Province are considered; the Plaintiff has not called on us to do this, but has resorted to a Writ of Inquiry. Can he award a proper Writ on his roll, and enter that which has issued; oi can he enter a different Writ from that under which he has proceeded? I think not: if we discharg- ed the present rule obtained at the Defendants' instance, the Plain- tiff must himself ask it of us if he wishes to proceed. Were it ne- cessary indeed the Court might I think ex officio award a new writ; but there is no occasion for that being done, Chifman, Chief Justice. — I was not present at the argument, but I fully concur in the opinions expressed by their Honors. A proceeding after default is necessary to inform the Court what amount of damages the Plaintiff has sustained by reason of the premises. A particular statute has altered the common law in some proceedings therein especially mentioned; in those Iaws,e very thing ji! Bljr confined there la a not convey of Inquiry 'eeding. > was tried >i priuB Re- I AS coram ed a venire ■n one of is aided by the Writ of new Writ are very of the pro- 'n, or honr The last d been re- i the onJy iecided, is and that it on here as no other, lion of the by statute d; I say t the Writ : book of think be fere what urt could Br, which 5 Geo. 3, isidered; >rted to a roll, and I'^rit from iischarg- le Plain- re it ne- 3W writ; IN THE SIXTH YEAR OF WILLIAM IV. 45 is mentioned to be done according to the form of the statute, and if that course is imported into other cases not specified in the sta- tute, the statutes of Jeoffaila will not cure the defect. The present proceeding is coram non judice, and must be set aside. The Solicitor General and J. A. Street for Plaintiff. N. Parker, Wetmore, and Wilmot, for Defendants. WILMOT V. BABINO and CORNWALL. The Solicitor General moved in last Easter Term, on behalf of the Defendants, for relief under the Insolvent Act; but after argu- ment the Court dismissed the application {vid. ante). Notice was given to Plaintiff's Attorney of a further application at this Term; but copies of the affidavits to support same, were not delivered. The Solicitor General was about to call the attention of the Court to the former affidavits and to some further statements — Sed Per curiam. This must be entirely a new application, and it does appear con- venient that we should pursue the practice which has been estab- lished of giving notice and communicating copies of all the Appli- cant's affidavits to the opposite party, that he may be prepared to answer them: the course has been not to grant a rule nisi, but to take the matter into consideration in the first instance. BRAYDON V. MOREHOUSE. Berton moved to set aside Serviceof Process in this cause with costs, on the ground that the Capias ad resp. was addressed to the Sheriffof Carleton, and was served in the Parish of Queens- bury in York County. He cited 1 Arch. 345, 8 T. R. 235: 1 M. & S. 442, & 4 M. & S 412, and 1 Arch. (Ch. £d. 1835,) 520. Rule nisi granted, which by consent of Wilmot for Plaintiff, wa« made absolute in the first instance. , I DICKINSON u. KETCHUM. |( Replevin for divers quantities of Timber. V Defendant pleaded as to part of the Timber, non cepit. |> 2d. As to another part, Property in himself. ^ 3d. As to another part, non cepit. '^ 4tb. As to another part, Property in himself. ' And 5th. As to another part, the same. At the Trial before Chifman, Chief Justice, at the Carleton Circuit in September last, a Yerdict was found, on the first issue for Defendants. On the 2d, as to part of the Timber therein men- tioned for the Plaintiff*, and as to the remainder for the Defendant. On the 3d and 4th. issues for the Defendants : and on the 5th for Plaintiff. A question thereupon arose as to who was entitled to the record, and which Party should recover costs. The Solicitor General for Defendant obtained a Rule in Hi- m {VI I Ml I 1. r nil liiii n 46 TRINITY TERM lary, to shew cause why the Poetea should not be given to the Defendants. Cause was shewn at this Term by Wilmot for Plain- tiff. Per curiam. Each party is entitled to costs on the issues determined in his favor, see 2 Bos & Puller, 368 ; as to taxing costs in replevin,8ee La- ter, i 190,confirmed in 4 B. & A. 43. The Plaintiff having carried down the Record, let bim have the Postea for one month to enter up the judgment, and after that time if Plaintiff shall neglect to do so, the Defendant may enter up the judgment. Wilmot for Plamtiff. Solicitor General and C. Wetmore for Defendant. BATES vs. LYON. This was an Action of Trespass quare clausumfre^it, tried before Parker, J. at the King's Circuit, in January last. Verdict for De- fendant. The Plaintiff proceeded for two distinct Trespasses on different Grants of Land, viz. : — One on what is called the Middle Land Grant; the other in what is called the Taylor and Underhill Chant . In Hilary Term, the Solicitor General obtained a rule nisi to set aside the Verdict, and grant anew trial on two grounds, viz.: That the Verdict was contrary to evidence as relating to the Middle Land Grant, and secondly to the charge of His Honor the Judge as related to the Taylor and Underbill Grant. JV*. Parker, for Defendant, showed cause at this Term, and con- tended as to the first point, that there was conflicting testLnony be- fore the Jury, and therefore the Court would not interfere ; and as to the second point, that the question was wholly of fact, and within the province of the Jury; and even were it otherwise, the damages sought to be recovered being trifling, was a sufficient reason for not disturbing the Verdict. The Solicitor General, in support ef the Rule, urged with regard to the Taylor and Underhill Grant, that although the Trespass was in itself of no great importance, yet as the object of the action was to try a question of boundary, and the Verdict would establish a eight, the Court would on the second ground set aside the Verdict. Chipman, Ch. J. — This Rule was obtained on two grounds; the first, that the Verdict was against Evidence, as to the Middle Land Grant, has been virtually abandoned by the Learned Counsel for the Plaintiff, and at any rate there was conflicting testimony before the Jury. On the second ground, with regard to the Taylor and Underhill Grant, we are urged to grant a new Trial, because it is said that the Verdict will establish a right. On looking at the evidence as reported by Mr. Justice Parker, I am of opinion, that the Plaintiff has brought his cause into Court in a way that will not entitle him to a new Trial. He produced a Grant in evidence, called the Taylor and Underhill Grant, which specified certain bounds and courses. The next step on his part I ii:.! IN THE SIXTH YEAR OF WILLIAM IV. 47 iven to the t for Plain- ined in his yin,8ee Lu- ing carried ilh to enter gleet to (Jo ried before ict for De- n difTerent drf/e Land hill Chant. nisi to set y>z.: That ddleLand Judge as , and oon- i-'nony be- e; and as »nd within ' dam ■;;■ r: ■'■ ■'•■ .•■■♦, . l\l"''\. ■c.v MICHAELMAS TERM, IN THE SIXTH YEAR OF THE REIGN OF WILLIAM IV, M'lLHANEY vs. WISWALL. A Rule Nisi having been obtained in this cause, to deprive the Plaintiff of his costs, pursuant to the A( . of Assembly, 50 G. 3, c. 17, s. 10, cause was shewn in last Trinity Term. The Court took time to look into the Cases, and at this Term, deli- vered their opinions. Chipman, Chief Justice. This was an action of Assumpsit, for work and labour, tried before Parker, J. at the St. John January Circuit, 1835. — Plea, General Issue. — Verdict for the Plaintiff for ^3 4s. 6d. — The Plaintiff proved work done for more than six months as a car- penter, and the amount of his account therefor was about ^30 ; it was proved that the Plaintiff had received sundry articles from the Defendant, under his order, which might be considered as payments, to a considerable amount ; and that Plaintiff had ac- knowledged, afler all these payments had been made, that he thought a balance of £7 or £8 only was due to him. There was a notice of set off, but whether the evidence given by the Defendant, was as set off or payment, did not distinctly appear. There was no evidence to reduce the demand, below what the Plaintiff had stated was due to him, viz. j£7 or £8, and it is not known upon what ground the Jury did go. The clause of the Provincial statute, 50 G. 3, c. 17, s. 10, on which this application is founded, is in the following terms. — " If any action or suit shall be commenced in any other Court " than the Justices Court for any debt not exceeding the sum of " £5, and recoverable by virtue of this Act in the Justices Court, " then, and in every such case, the Plaintiff in such action or D I '1 50 MICHAELMAS TERM « suit shall not by reason of a verdict or judgment for him, &Cv *' have or be entitled to any costs whatever." In order then to deprive the Plaintiff of costs under this Act, it is essential, that the uebtyor which the action is brought shall not exceed the sum of ^5, and shall be recoverable in the Justices Court. If the original debt be reduced by a set otF, it is clear and has always been held, that it could not have been sued for in the inferior jurisdiction, and the Act does not apply ; and it is only in case this evidence should be considered as evidence of payment, and not of set off, that this application can for a moment be sustain- ed ; in this view of the matter it may indeed be considered to be settled as a general ruhf that the verdict shall be taken as the evidence of the amount for which the action is brought. Fitzpatrick vs. Pickering, 2 Wils, 68. Shaddick vs. Bennett, 4 Barn and Cres. 769. Drew vs. Coles, 2 Tyr. 503. 2 C. & J. 505. 1 Dowl.P. C. 580. Jones vs. Harris, I Dowl, Pr. Ca. 433. Baddley vs. Oliver, 1 Dowl. P. C. 598. 1 C. & M. 219. Moore vs. Jones, 2 Dowl. Pr. Ca. 58. Nevertheless, it is only as evidence of the amount of the ori- ginal debt rightfully due, that the verdict is to be I'eceived, and it is not conclusively binding on the Court in all cases, to de- prive the Plaintifi' of his costs, when found for the Plaintiff for a sum, which is within the Justices jurisdiction ; accordingly in Drew vs. Coles, Lord Chief Baron Lyndhurst says, " It is not "necessary to say that in every case the verdict shall rule " as to the amount of the debt due to the Plaintifi' which might " have been rightfully demanded by him, but there is no doubt " that in the generality of cases it shall decide the question ;" and Baron Bayley says, ^^ prima facie, a verdict is to be taken, " as evidence of what the debt was, when the action was com- " menced." In any case therefore, when the original debt pro- ved at the trial shall exceed five pounds, and the Jury shall think fit to bring in their verdict in respect of that debt, for a sum under five pounds, and without there being a foundation in the evidence given at the trial, for so reducing it, I do not con- sider that the Court Is bound to receive the verdict, as such con- clusive evidence of the debt originally due, as to deprive the Plain- tiff of his costs under the Act. The case most analogous in its circumstances to the present, is that of Harsant vs, Larkin, 3 B. and B. 257. In this case the action was brou^rht for measured work and labour, which a surveyor of the Defendant's own appointment, had estimated at upwards of jfi34, and upon this estimate, the balance proved to i IN THE SIXTH YEAR OF WILLrAM IV. 51 for him, &c. )rder then to ssential, that ceed the sum 3urt. If the d has always the inferior only in case ay men t, and t be sustain- iidered to be aken as the rht. DowJ.P. C. ; M. 219. of the ori- ceived, and ises, to de- Plaintiff for ordingly in " It is not shall rule hich might s no doubt ition ;" and be taken, was com- 1 debt pro- Jury shall lebt, for a ndation in not con- such con- the Plain- e present, this case r, which a timated at proved to I be due the Plaintiff was more than /€9 ; the Jury however, in a manner unaccountable to the Court, reduced the estimate to £26, and thereby reduced the balance dut .^ the Plaintiff to j£l 2s., for which last mentioned sum they gave their verdict, and the Court, under these circumstances, refused to deprive the Plaintiff of his costs. Now, although the doctrine broadly laid down in Harsant vs. Larkin, as to the discretion of the Court in these cases, must be considered as very much limited by subsequent decisions, yet the decision itself under the peculiar circumstances of the case, has never been questioned, and I think affords a precedent, for the determination of the present case under its peculiar circum- stances. The Plaintiff in the present case had an original de- mand which was proved, of j£30 ; this demand had indeed been reduced, and in the view I am now taking, let it be supposed that it was reduced \:^' payments, yet there was no evidence of a reduction below £7. — Under these circumstances the Plaintiff surely could not bring his action in the Justices Court for a sum under £5. This case differs entirely from that of Dickinson vs. Balloch, fante p. 11) formerly decided in this Court. In Dickinson vs. Balloch, the Plaintiff had a distinct demand, amounting on'y to 25s., for which sum the verdict was given, and although a large demand had been litigated at the trial, yet it was evident that if this larger demand only, had been in question, the ver- dict would have been for the Defendant, and that the verdict was found for the Plaintiff, only for the separate demand, of £\ 5s., which separate demand might have been sued for in the Justices Court. The decision of this case is not of much moment as a prece- dent, as the late Act for the recovery of Small Debts, 4 W. 4, c. 45, makes improved and more complete regulations on liic subject, the present rule for entering a suggestion must, I think, be discharged. BoTSFORD, J. — I fully concur in opinion with liis Honor th« Chief Justice. I am very much governed by the case of Moore vs. Jones, in 2d Dowl. Pr. Ca. 58 ; although the items proved on the part of the Defendant might have been in the nature of pay- ments, yet having been treated as set off by the Defendant him- self, he is not now entitled to co'.isider the Plaintiff's demand as reduced by payments ; pnd at any rate it was not reduced below £b, and therefore was not a demand recoverable in the Justices Court. Carter, J. — I am of opinion that in this case no ^ucrg^stion ;>hould be entered. sS?ss!^ memsmmm ( T 1 1 1; i 1 1 ''1 H iliii^ilili 1 it; '!''! '. i'i 1 ■ : ; i!';ii i ii 1 lliiif 1 I. Ill ill I , .u..d f II k nj III 1 1^ if III ■^'1 52 MICHAELMAS TERM In cases of this description it seems very difficult, if not im- possible, (o lay down any general rule which may govern all cases : — The question to be decided is whether this was an ac- tion brought to recover a debt not exceeding 5/., and in order to determine this we must consider how far the debt for which the action is brought is ascertained by the sum which is actually recovered by the verdict. If, in all cases, the Court can only look to the verdict to ascer- tain the amount of the debt, and are bound by that, it would seem that this might become a motion of course, on an affidavit stating the nature of the action, and the amount of the verdict ; that this is not so, the numerous cases and arguments to be found in the reports of the English Courts plainly shew, and if not so, it would then seem that each case n:nst rest on its own circumstances, and that there is a discretion left to the Court, to take the circumstances of each case into consideration, to look at the evidence on which the verdict was founded, and the verdict itself, and then to decide the question on all these considerations jointly, and not by looking to the verdict, and to that alone. The language used by Chief Justice Abbott in Shaddick vs. Bennett^ certainly goes very far to the con- clusion that the debt for which the action is brought is to be ascertained by the sum which is recovered by the verdjct ; but referring that language to the circumstances of the case, then under tne consideration of ihe Court, it seems that there was no doubt as to the amount of the debt, or the facts of the case, but the only point was, 'hether a debt, barred by the statute of limitations, was to be taken to be the debt, for which the action was brought, or the sum admitted to be due in the acknowledgment produced, to take the case out of the statute. No doubt existed in the mind of the Court as to the propriety and justice of the verdict on the law and evidence of the case, and under such circumstances there can be no doubt that the debt is to be ascertained by the amount of the verdict. So in Younger vs. Kilsby, (6 Taun. 452.) Chief Justice Gihbs says, " The debt is that which is found by the verdict," but it does not appear that there was any reason to doubt the proprie- ty of the verdict in that case. In Tucker vs. Crosbi/, 2 Taun. 169, the ground on which the Court give judgment, is that the verdict was rights which expres- sion clearly shows that the Court conceived it within their dis- cretion to consider the propriety of the verdict on the law and evidence of the case. The language of Lord Ellenhorough in Horn vs. Hughes^ (8 East. 317,) leads to the conclusion that in the opinion of that very learned Judge the verdict was not in all cases conclusive, IN THE SIXTH YEAR OF WILLIAM IV. 53 lit) if not im- y govern all s was an ac- and in order bt for which 'h is actually Jict to ascer- »t, it would > an affidavit the verdict ; nents to be shew, and if t on its own he Court, to ion, to look 1» and the n all these erdict, and tice Abbott o the con- tit is to be Jrdjct ; but case, then there was cts of the ed by the for which lue in the le statute, propriety the case, t that the iice Gibbs t," but it J proprie- ivhich the expres- their dis- law and Hugkes, n of that rtclusire, as to the debt for which the action was brought ; for he says, '■* It is unnecessary to say what we might have thought, if it had " appeared that the Plaintiff had a reasonable ground for bring- " ing his action, for more than five pounds, but that from the "absence of a material witness, or other cause, without his de- " fault, he had failed in proving his whole demand ; but here it " appears," (/. e. to the Court, as well as the Jurj',) " that less " than that sum was due at the time of bringing the action, by " means of a part payment, of which he must have been cogni- •* zant." This therefore was a case in which there appeared to the Court bo reason to be dissatisfied with the verdict of the Jury. I come now to the case of Harsant vs. Larkin. In that case the action was brought for ^34 5s. Id., a sum fixed as the value of work done by Plaintiff for the Defendant, by a surveyor appointed by both parties ; the Defendant proved pay- ments on account, amounting to j£24 .18s., but the Jury form- ing a lower estimate of the work, found a verdict for £\ 2s., instead of £Q and upwards, which would have been the balance, taking the surveyor's valuation ; there the Court took all the cir- cumstances of the case into consideration, and decided that it was not a case which ought to have been submitted to an infe- rior Court, and therefore refused the application. The lan- guage oi Justice J. Burrough seems to me very applicable to the case now under consideration. He says, " in all cases much " must be left to the discretion of the Court upon the facts as " they appear in evidence ; the intention of the Legislature was, " that the suggestion as to costs, should be applied to cases " where there was a clear demand for less than forty shillings ,* " but if we look at the facts of this case, we can have no doubt " that it is not one of that description ; here is a demand for " more than j£34, a valuation by consent of both parties, a ba- *' lance struck, particulars of demand given, and the valuer cal- " led, and though for some reason to us unknown, the Jury have " found a verdict for less than the balance, I am satisfied on "the merits of this case, that it is not within the Act." The principle laid down in this case has not been over- ruled by any subsequent case, for in Drew vs. Coles, in which this question was fully argued, Lord Lyndhurst carefully ab- stains from saying that in all cases the verdict of the Jury should be the criterion of the debt justly due, and he also says, that " in t.he case then before the Court, in a conjlict of tes- " timony, the Jury decided that the Plaintiff was only entitled " to a sum under jfi5, which sum he could only rightfully de- " mand." In the same case, Justice B. Bayley says, " prima *\facie the verdict of a Jury is the estimate of what is the just ^^ ^i Vf • MICHAELMAS TERM I ■ ' I ' I 1 'i: Pi I'::," ii'.. i!!: .11 i m •* debt due between the parties at the period when the action " was commenced," and he further says, " if the Oourt could " exercise a discretionary power in ordinary cases of this kind, " this is not in my opinion a case in which such a discretionary " power ought to be exercised." Justice B. Holland expressly says, that tlie judgment of the Court in that case will in no way trench upon the decision in Harsant vs. Larkin. The result to which a careful consideration of all the cases leads me, is, that the Court are not finally and universally con- cluded by the verdict of the Jury, as to the amount of the debt, though I am quite of opinion that the discretion which rests with the Court, should be very cautiously exercised. Looking to the facts of the present case as they appeared in evidence, it seems that the original debt proved by the Plaintiff amounted to between ^20 and j£30, but that by his own admission, it had been reduced to about £1 or £S. The Defendant proved payments or delivery of goods in lieu of payment to the amount of only £& or £6, and the learned Judge who tried the cause told the Jury, that as the balance made by deducting the amount proved by the Defendant from the original debt would be larger than that admitted by the Plaintiff to be the real balance due, they had better take the latter amount for their verdict ; the Jury however found a verdict which can be explained by neither mode of calculation, viz. for s€3 4s. 6d. Upon these facts as they appear in evidence, though the Jury have found a verdict for only J£S 4s. 6d. (an amount which it seems impossible to explain by anv construction of the evidence,) I must say I am satisfied that this is not a case in which the Court should feel themselves prevented by the amount of the verdict so found, from refusing to allow the proposed suggestion, which I am satisfied is not called for by the merits of the case. Parker, J. — I agree with the opinion expressed by His Ho- nor the Chief Justice and my brethren. I think we may decide this case without trenching on decisions either at home or here. The Plaintiff proved between j€20 and ^30 ; the Defendant gave notice of set off, and proved items which perhaps might have been payments, but were given under set off, and it was not made a distinct point that they were as payments, and he put a witness on the stand to prove the Plaintiff's admission that only £1 or £S was due to him. The Plaintiff ought not to be deprived of costs unless he has sued for a demand reco- verable in a Justice's Court. Now, if the verdict is binding on the Court as to the amount of the debt due, this application, (as has been remarked) would be a motion of course, but in all the cases, the Courts have looked at the circumstances and consider- n the action iJourt could of this kind, discretionary nd expressly ill in no way all the cases i^ersally con- of the debt, which rests 1* Looking evidence, it imounted to > it had been ?d payments unt of only Jse told the sunt proved larger than e due, they - ; the Jury either mode S[h the Jury It which it f evidence,) which the )unt of the suggestion, the case. y His Ho- nay decide le or here. Defendant aps might and it was s, and he admission Jught not and reco- nding on ;ation, (as in all the consider- IN THE SITXH YEAR OF WILLIAM IV. 56 *d them, and if they have a right to do so, then there can be no doubt that in this case the rule should be discharged. Lugrin and Wilmot for the Plaintiff. R. L. Hazen and R. Sands for the Defendant. CA.MPBELL, Sheriff op Charlotte, vs. WILLIAM HENAN, MORRISON, O'NEIL, FARREL, and THOS HENAN. This was an action of debt on a Bond made to the Plaintiff by the Defendants, conditioned for William Henan, one of the Defendants, then a prisoner in the Plaintiff's custody, continu- ing within the limits of the gaol of Charlotte County. Thomas Henan was not brought into Court. The Declaration contained only one Count on the Bond. The Defendants, William Henan, Morrison, O'Neil, and Farrell craved Oyer, and set forth the condition of the Bond, which was as follows, viz. : " Whereas the above-named Colin " Campbell, Sheriff as aforesaid, hath given permission to the " above bounden William Henan, a debtor confined in the gaol " of the County abovementioned, to go about and have his li- " berty, within the yard or limits of such gaol ; Now the con- " dition of this obligation is such, that if the said William Henan " shall not go or be at large, out of the said limits of such gaol, «« or escape at any time while he has the liberty of the same^ then, " &c." being in the form prescribed by the Act, 10 and J 1 G. 4, c> 30, s. is, and pleaded, 1st. Non est factum; 2d. Actio non. Sec, because that after the making, &c., ar'l while the said Wil- liam Henan had the liberty of *he said limits of the said gaol as in the said condition is mentioned, to-wit, on, &c., at, &c., the said Morrison, O'Neil, and Farrell took the said William Henan to the said gaol of the said County of Charlotte, and then and there surrendered and delivered hin^ up to the custody of the Plaintiff as such Sheriff as aforesaid, in tlischarge of the said writing obligatory, and their liability thereon, and the said Plain' tiff as such Sheriff as aforesaid^ then and there, received afid took the said William Henan into his custody, as such Sheriff, in dis- charge of the said Morrison, O'Neil, and Fajrell, and committed him to the said gaol of the said County of Charlotte, and there kept and detained him for a long space of time, to-wit, for the space of two days. And the said Plaintiff afterwards, to-wit, on, &c., without the consent or leave of the said Morrison, O'Neil, and Farrell, discharged and set at liberty the said Wil- liam Henan. 3d. That after the making, &c., to-wit, on, &c., at, &c., the said William Henan surrendered and yielded himself to the 56 MICHAELMAS TEftM 1 1, ' PlaintifT, as such Sheriff as aforesaid^ iti discharge of the satti writing obligatory, and the said Plaintiff" aa suck Sheriff then and there received and took the said William Henan into his ats^ tody^ and aflervrards on, flee, at« &c., suffered and permitted the said William Henan to go and be at large, &c. 4th. That the said William Henan aid not go nor was at large, out of the limits o^ &c., nor did he escape at any time while he had the liberty of the same. 5th. That the Plaintiff hath not at any time since the ma^ king of, &c., hitherto been in anywise damnified ; nor hath he sustained any damage by reason of the said William Henan gO" ing at large out of the limits of the said gaol. The Plaintiff demurred generally to the second, thiru, and fiflh pleas, and took issue upon the first and fourth. The De-* fendants joined in Demurrer. Chandler in support of the Demurrer. The Bond declared upon is under the Provincial Act, 10 and 11 G. 4, c. 30, the 11th sect, of which empowers the Justices of the Peace to designate certain limits to the gaol yards ; by the ISth sect, the Sheriff is empowered to permit prisoners to have their liberty within such limits upon a Bond being given to the Sheriff, conditioned that the prisoner shall not be at large or escape, he. The second and third plens can only be sustained on the principle that the Defendants were in the same condition, as principal and special bail, and that the bail for the limits under the said Act have a power of render, which is not the case. The power which formerly was given to the Sheriff by 6 G. 4, t. 10, upon reasonable cause to revoke the permission to prisoners to go about within the limits, and renew it if he thought fit, is can-, celled by 10 and 11 G. 4. c. 30, which contains no such provi' sion. It would be an Act of Trespass on the part of the sureties, to take the principal for the purpose of surrendering him, as well as on the part of the Sheriff to receive or detain him when so surrendered. The effect therefore of sustaining the Pleas in question would be to establish that the illegal conduct of the par- ties is a sufficient answer to the action. (BoTSFORD, J. — Is it not alleged that the Sheriff received him back.) If the Bail had no right to render, it would follow that the principal had no right to render himself, and that the Sheriff had no right to receive him, or if he did, and the Prisoner applied for his discharge, the Sheriff would have been a trespas- ser by detaining him. The only available defence would be to show a discharge by some instrument, or by some act tantamount thereto, on the principle eo ligamine quo ligjstur, dissolvetur. ^ Itj tttE 8lXTtt YEAR OF WILLIAM IV. 0l i of thft saui /»to his ats^ ermitted the nor was at at any time ice the ma" lorhath he Henan gO" i thiru, and The De* ^ct,iaand Justices of Is ; by the fs to have ven to the t large or ed on the iditioi], a» nits under :ase. The . 4, t. 10, soners to it, is can- ch provi- J sureties, him, as lim when Pleas in ' the par- receive(f Id follow that the Prisoner trespas- Id be to amount ^etur. As to the 5th plea* non damificatus, it is clearly bad Upon the authority of Holmes and another vs. Rhodes, I B. & P. 638, and 1 Saun. Rep. 1 17, Note 1. There is also a discretionary power vested in the Court to extend relief to the bail in such cases as they may think propen The Solicitor General contra. If the construction of the Act Were as contended for by the Plaintiff's counsel} it would render the Act of Assembly in a great measure nugatory* as it would be impossible for mnny debtors to obtain security for the limits* if (having obtained it) they were at once placed beyond the control, either of their sureties or the Sheriff. But the fair construction of the Act and the form of the Bond contradict the position ; the party shall not escape* ** while he has the liberty*" and the She- riff *< is authorised and empowered to permit," &c.* neither the words may or shall are used* but tlie Sheriff is merely empow- ered to permit debtors to go about within the limits ; and while there they are in the eye of the Law as much in custody as if within the prison walls ; and it cannot be contended therefore* that the Sheriff has no controul over them. A debtor is not discharged as he would be on a Bail Bond be- ing given* when he is entirely at large ; but even in that case if he should deliver himself up before the return of the Writ* he would be in custody in the same maimer as if he had not been at large. The second and third Pleas are a full answer to the action, the Defendants* (and one of them the very debtor himself*) plead that the debtor was delivered up to the Sheriff* and received* taken and detained by him in custody. Now the condition of the Bond is* that the debtor shall not escape while he has the liberty of the limits ; the pleap aver that he escaped while in close custody after his surrender ; how then can the Sheriff after receiving and detaining the debtor as stated, and afier eith^^r a negligent or wilful escape* turn round upon the Baih Bonds may be discharged by things equivalent to perform- ance* as here* by rendering up the debtor, although a question might have arisen if the Sheriff had refused to receive hmi. In Hptham vs. The East India Company, 1 T. R< 688, IMler, J. says* ** If an act undertaken to be done is dispensed with by *< the other party* it is sufRcient to state it on the Record." As to the 54h Plea* no action is contemplated by the Act* to be brought by the Sheriff unless he has sustained an injury. If a debtor escape* he mc;- •»ssign the Bond to the Plaintiff at whose suit he was confined* or else it stands in effect an indemnity to him against any loss or damage by reason thereof. (Cmipmak, Chief Justice. The Bond is given by the law* and if f(M-feited* why should not the Sheriff sue on it ; it only miM 58 MICHAELMAS TERM i!l!l "•i;-:^*ii' mm protects the Sheriff for enlarging the walls of the gaol.) The Bond is intended as a guard to the Sheriff in respect of dama- ges, he is entitled to the amount of any damages he may have sustained, and no more under the statute; then what is the quan- tum of damages the Plaintiff' in this case is entitled to recover. The Bond is in effect an indemnity bond. . «> , , Cmifman, Chief Jitstice. — This is an action of Debt on a Bond commonly called a Limit Bond, given by the Defendants to the Plaintiff as Sheriff of the County of Charlotte, under the Act of Assembly, 10 and 11 G. 4, c. 30, s. 13, (afler recapitula- ting the pleadings as before stated, Flis Honor continued,) this Demurrer has been argued during the present term, and now stands for judgment : — With regard to the second and third pleas which may be considered together, it is not necsesary for the decision of this case to determine, either on the one hand, whether the Sheriff after having given a party the liberty of the gaol limits upon the requisite bond being entered into, may, against the will of the party, replace him in close custody withm the walls of the gaol, nor on the other hand, whether the pai'ty himself or his bail, may, against the will of the Sheriff, make a surrender into such close custody. The essential allegation in both these Pleas is, " that tne Sheriff received the Debtor" when so re-delivered to close custody, as stated in the second plea upon a render by the sureties, and as stated in the third plea, upon a render by the debtor himself. Being then delivered up, and receivM into close custody again, the operation of the Limit Bond necessarily ceased, for this bond by the express tenor of the condition, was only to be in force while the party had the liberty of the gaol limits. Upon this single and short ground, I am of opinion that there must be judgment for the Defendants on the second and third pleas. Upon the Demurrer to the fifth plea, I am of opinion there must be judgment for the Plaintiff. The Plea is no answer to the condition of the Bond ; it admits that the condition of the Bond has not been complied with, and alleges that the Plain- tiff hath sustained no damage thereby. Non damnificatus is a good plea only when the condition of a bond is merely to irt' demnify. When the condition of a Bond is for the ful^lment or per- formance of any particular thing, and not merely to save the Plaintiff from any damage by reason of such thing the Defen- dant must set forth specially the performance of the condition, BoTSFORD, J. — I shall forbear t.^ give an opinion as to the fifth plea, but as to the second and third pleas, I am satisfied \M •}A^i^:-:^:,i-:^.::ii!ii:-r4a^i-f'&&'^^^^ IN THE SIXTH YEAR OF WILLIAM IV, 59 they contain a full and sufficient answer to the condition of the IBond, and therefore upon those pleas the Defendant is entitled to judgment. Carteii, J. — I am also of opinion that there is sufficient in the second and third pleas to answer the condition of the Bond. When the escape took place the Defendant had not his liber- ty within the gaol limits, and the condition of the Bond was only that he should not escape while he had such liberty. Without deciding the question on a render by the sureties, or by the debtor himself, or their right to make such render, or upon a taking into close custody by the Sheriff' against the will oi' the debtor, it is sufficient to determine this case that the She- riff rectfived the debtor and had him in close custody. There is also a further allegation in the second plea, upon which it is not now necessary to decide ; but it might have been argued that the escape took place by the sufferance and permis- sion of the Sheriff. As to the 5th Plea, I had considerable doubts, but have now a strong opinion that the plea is insufficient. Parkep., J. — I quite agree in opinion with the rest of the Court. The fact as substantially set out in both the second and the third pleas, "that the debtor was rendered to, and recei- ved by the Sheriff in the gaol, and ke}"rt there in discbarge of the Bond until releaseil by him," is, I tl)ink, a sufficient answer to the action of the Sheriff thereon. The demurrer to tlie 5th Pica is, in my opinion sustainable. No7i damnificatvs is a good Plea to an action on a Bond only where the condition is specifically for Indemnity, for in that case it denies that the condition has been broken — Carthew 374, and 5 Mod. 2i3. In the present case the plea admits a breach of the condition. It must be remarked that the form of the Limit Bonil has been prescribed by the Legislature who would have given a dif- ferent one, or might specially have authorised the plea of iion dnmnificatus, had they Intended that the Bond should not be available to the Sheriff until he had actually sustained damage himself III consequence of the debtor going at large. .Judgment for Defendant on the Second and Third Pleas. » J. /F. C/ifl/ir/Zfr for Plaintiff. The Soliciior General and J. L. and G. D. Street tor Dtfen- flants. ;>«,'♦ mm -U^ 60 MICHAELMAS TERM ELLIS VS. NEWTON. F. A. Kinnear in last Trinity Term, obtained a rulu nisi to set aside a Judgment as in case of a Nonsuit in this cause for surprize, the Rule was served on the Defendant's Attorney on 81st August. X). L. Robinson now shewed cause on Affidavit Ffill CURIAM. The Rule must be discharged ; the facts are differently stated in the affidavits, and in such cases the affidavit of th« party shew- ing cause must prevail. There was great Laches in not serving the Rule nisi at an earlier period. GIBBS v$. DeVEBER. A Rule Nisi for security for costs in this cause was obtained by Wilmot in last Trinity Term. J. W. Chandler for Plaintiff shewed cause, 1st. on affidavits which stated that the Plaintiff's absence was only temporary. — Issue was joined in Trinity, 1834. The Plaintiff went to Eng- land in January, 1835, to seek evidence in the cause, and was shortly expected to return. 2d. The Defendant was too late in his application, having known of the Plaintiff's absence previous to last Easter Term. Rule discharged. JOHNSTON vs. BRANSFIELD. The Plaintiff sued out two writs against Defendant, returnable in Hilary, 1835, one to York, the other to Cavleton, both were indorsed on oath for the same amount. The Defendant was ar- rested in York in November, and immediately entered Special Bail, of which notice was given to the Plaintiff''s Attorney. In December he was arrested in Carleton, and again entered Special Bail, of which notice was also given. The Plaintiff's Attorney then apprized the Defendant's Attorney that there was but one cause of action and expressed his intention to discontinue on the 2d Writ. In June a Declaration was filed, but the 2d Recogni- zance remaining in force, the Defendant afterwards signed a Judgment of Non. Pros. ■ ■'■.. v.* mtm IN THE SIXTH YEAR OF WILLIAM IV, (il e nisi at an Wilmot fur PlaintiH'in Trinity Term obtained a Rule Nisi to set aside the Judgment for irregularis, a Declaration luiving been filed in the cause previous to the Judgment. J. A. Street for Defendant, now showed cause, contending that the Judgment of Non. Pros, applied to the Writ which was set out in the record, and that there having been two arrests, it was not competent for the Plaintiif after Uie arrest made, and bail entered, to assert there was only one cause of action, and even if such were the case, o Judgment of Non. Pros, might be signed as to part of the action witliout afTecting another part. — 2 Ch. Arch. Pr. (18S5,) 893, Dordsy vs. Cooh 4 B. and C. 135. Per curiam. The leading fact in this case is, that there is but one cause which has been put an end to by a Judgment of Non. Pros, which is irregular, a Declaration having been filed previous to the sign- ing of the Judgment. It is competent for a Plaintiif to sue writs into different counties, and if in this cause there has been an ir- regularity, the Defendant has misconceived his remedy ; he should have applied to the Court/or relief. The llule was made abso- lute without costs ; and on the application of the defendant, it was further ordered, that an exoneretur should be entered on the Bail-piece last given, and that the Plaintiif should pay to the Defendant, his costs of entering such last mentioned Bail and appearance. - Wilmot for Plaintiff. i7. A. Street and Berton for Defendant. CALIFF vs. WILSON. Trespass for taking and carrying away Fish Nets, &c. The Defendant pleaded — 1st. The General Issue ; and 2dly. justified the taking as an Overseer of the Fisheries, for that, the said net was set contrary to the provisions of the Act of Assem- bly, 8 G. 4, ch. 11, and avered that the said nets were not claim- ed within five days, and were thereupon sold as forfeited, i)ur- suant to the said Act. Plaintiff replied, that the nets were claim- ed within the time limited, on which issue was joined. I'lie cause was tried at the August Circuit in Charlotte, and a verdict given for the Plaintiff. J. IV, Chandler for Defendant, movad lor a liule Nisi to set aside the verdict, and grant a new trial, on tlie ground that tres- pass was not sustainable, hiasmuch as the original taking by the Del'eudunt having been legal, there was not proved any such c? MICHAELNf AS TEIlM ,".!!' subsequent Act na woulil make the Defendant n trcspnsscr, a\t initio. OiiirMAN, Chief Justice. — There were in this case two issues. — 1st. The Gencrftl Issue. 2(1. That the PlaintifT did not appear to claim tiie Nets within the time limited by Law. Both tliesc Issues have been found in favor of the Plaintiff, and it thereby appears on the record, that the Defendant after, and notwithstandmc the claim of the goods made by the Plaintiff, sold them ; if this is not such an Act as would make the Defen- dant a trespasse<', ab initio, the Defendant can move in arrest of judgment ; but the case is so clear that it is not necessary further to agitate the question. It is clear tliat when a person having authority by Law, as contra-distinguished from an authority in fact, abuses that autho- rity, tliis abuse of the authority, mnkcs every thing done under it void. It is not, however, a mere negative abuse of the autho- rity, that will have this effect. There must be some positive act, Qot a mere non-feasance ; some direct invasion of property, to make the whole proceeding void, and the party a trespasser, ab initio. What then is the present case ; the Law provides that if the nets seized are not claimed in a certain time they shall be forfeited and sold ; in this case they were claimed within the time limited by law, and therefore no forfeiture was incurred ; the Defendant nevertheless went on to sell and deliver the nets as if they were forfeited. This was a direct invasion of the pro- perty of the Plaintiff", and made the Defendant a Trespasser, ab initio, and all his proceedings void ; the case of the Estray, re- ported in 1st T. li. 12, Oxlcy vs. Wat is, is directly in point. The seizure here was originally lawful, but became unlawiul by reason of the subsequent sale, when not forfeited according to Jaw, and the Defendant is therefore rightfully mulcted in all the damages arising from his proceedings^ BoTSFORD, J. concurred. Cauteu, J. — If there was anything in this objection, it np- pears on the record, and the Defendant might have d< imrr* » , " ^ Igment, new trial, ic is nothing ;,ral s and or moved for a non-suit, or may move in arrest but clearly there is no groim j for an ap))licati( I agree with His Honor the Chief Justice thu in the point taken by the learned Counsel ; the ;^al so was an act which mad*" the party a trespasser, ab initi ^ and cnder- ed him liable for al! the damage the PlaintilF sustained iii con- sequence of such sale. In Comyn's Digest, Tres. C. 2, are two cases of acts which make a man a trespasser, ab initio, which seem applicable to the present case. "If a purveyor who takes " mv cattle for the Kinix's lionour — sells ificm" m IN TIIK SIXTH YEAR OF WILLIAM IV. 68 trcspftsscr, ul> til is case two Plaintiff did itcd by Law. Plaintiff, and nt after, and tlie Plaintiff, e the Defen- 2 in arrest of ssary further by Law, as s that autho- done under )f the autho- positive act, Moperty, to espassei', ah rovides that ley shall be within the s incurred ; vet' the nets of the pro- ;s|)asser, ab Estray, re- 1 point, ne unlawful I according Icted ill ail Jon, it jf]|V di uin, . Igment, new trial, is notliinir 1 ^ I s, c was id ender- d m con- 2, are two io, which wlio takes " If a man has authority given by statutr, and does not f>ur- *' sue, or abuses liis power ; as if a ntnn having authority by Mta- « tute, 2 W. and M. to sell a distress for rent if it be not rcple- " vied within five days after notice, he sells it without notice " given." In both these cases the original taking was legal, but the sub- sequent sale was illegal, and therefore the man was a trespasser, ab initio. Parker, J. — I agree with His Honor the Chief Justice and tny brethren. This was an action of trespass to personal pro- perty. The Defendant, it was proved, took, carried away, antl disposed of the Plaintiff's goods. The defence set up was such as could only be available on a special plea of justification. This justification was so pleaded, and an issue joined thereon, which being found for the Plaintiflti destroys this defence. The only other issue was the general issue, denyiiig the fact of the taking, and which was necessarily found for the Plaintiff on the evidence. I think the verdict was clearly right on both the issues, and ought not to be disturbed. Rule refused. PINE AND ANOTHER, VS. McLACHLAN. fl The Defendant demurred to the Plaintiff's Declaration. — Demurrer books were delivered to the Court, and the cause entered in the special paper for argument. J. W, Chandler for Defendant, moved for leave to amend his Declaration on payment of the costs of the demurrer, 1 Arch. Prac. 479. The Solicitor General suggested that the Rule, as to amendments at the present stage, was not general, but appli- cable only to special demurrers. Sed PER CURIAM. This is a matter in the discretion of the Court, and we think the Plaintiff should have leave to amend on payment of costs. BLACK AND OTHERS VS. KIRK. R. L. Hazen obtained a Rule nisi in Michaelmas to enter a uggestion to deprive the Plaintiffs of costs, under the Act of Assembly, 50 Geo. 3, c. It. The action was Assumpsit. The Declaration contained counts for use and occupation ; for wharf- age and slippage of vessels, and the common money counts. ■-"— II ;i/ !i 1 I hIII'IIB I > mm I 'illlll i m mhililii' liiiliiif !; I 64 MICHAELMAS TfiRM '.fc At the trial before Carteh, J. at the .St. John Circuit in June, the Plaintiffs obtained a verdict for £4i. Carter, J. now report- ed the cause as an action brought to try the right to a wharf and part of a slip in the City of St. John, and the wharfage ap- purtenant thereto. The Plaintiffs proved their title to the pre- mises under the will of the late Hon. John Black j atid also put in evidence a conveyance made by the said John Black to L. Donaldson, of adjoining premises, which the Defendant bad Oc- cupied under Donaldson. It was proved that the Defendant's vessels while lying at Donaldson's wharf had extended over the Plaintiff's property, and that the Defendant had received the wharfage dues of other vessels similarly situated. Notice had been given to him of the Plaintifl'*s claims. The defence rest- ed on the construction of a particular clause in the Deed of Black to Donaldson, which His Honor conceived to be clearly in favor of the Plaintiffs ; and that as they had made out their title to the freehold of the property, so partially occupied as aforesaid, they were entitled to recover ; and directed the Jury accordingly. That the amount of damages was not very mate- ii?l, the action being brought to try the right, and so specifi- cally stated in the bill of particulars. His Honor considered ttiat the freehold had been in question. N. Parker shewed cause at this Term. The action was of an intricate nature, in which damages were not the object, but the settlement of an important right j it was tried by a special Jury, and certified as a proper cause for a special Jury j the amount of the demand, if insisted on, would have exceeded j£25, and besides the title of the freehold was expressly in question. He cited Drew vs. Fletcher, 1 B. & C. 283, Axon vs. Dalit' morCf % D. and R. 51. 22. L. Hazcn in support of the rule, urged that the Plaintiffs* case did not affect the freehold; the Defendant did not claimthat ; the question was more in the nature of a right of way claimed by Defendant over the Plaintiffs' property. An easement, 12 E. 162. The action was for money had and I'ficeived in which the title to the freehold could not be tried j the Plaintiff' called for and gave in evidence the Defendant's deed, but the Defendant made no question as to the freehold, and called no witnesses. The difficulty or intricacy of the case formed no sufficient objection to its trial before the Inferior Tribunal, if by its amount it was confined to it by the Act of Assembly. Keay vs. 72/^^, 1 B. and P. H. BoTSFORD, J. referred to Double vs. Gihhs^ 1 Dowl. Pr. C. 583, and Sandhy vs. Miller, 5 East. 194. Holdcn v;. Newman, 13 East. 160, was also referred to. fm^m^-",^'" ammmmaKm wmmmmit^iltammi IN THE SIXtH YEAR OF WILLIAM IV. 65 Circuit in June, J. now report- lit to a wharf wharfage ap- tle to the pre- i and also put Black to L. idant bad oc- e Defendant's ided over the received the Notice had defence rest- the Deed of to be clearly ide out their occupied as ted the Jury t very mate- d so specifi- considered ction was of 2 object, but ^^y a special Jury; the ;eeded ^£25, in question. > vs, Dalli- e Plaintiffs* : claimthat ; claimed by ent, 12 E. which the called for Defendant itnesses. sufficient if by its ^eai/ vs. vl. Pr. C. Newman, PEJI CURIAM. The Act of Assembly, 50 G. 3, c. IT, excepts from the Ju- risdiction of Justices of the Peace, actions wherein the freehold of lands may in any way come in question. The learned Judge has reported the material question to have been the construction of a deed under which the Plaintiffs' right to recover for the occupation of their land was disputed, and he considered the freehold in question ; the case is therefore clearly within the ex- ception of the Act. Parker, J. having been concerned in the cause when at the bar, gave no opinion. Rule discharged with costs. JV. Parker for Plaintiff. ^ R. L. Hazen for Defendants. DOE EX DEM DUNCAN vs, CHRISTOPHER. This was an action of Ejectment, tried before Parker, J. at the Gloucester Assizes in September. At the trial, a motion for non-suit was overruled, but leave was given to move in Banc upon the poirt reserved, and the case went to the Jury. After the Jury had retired, a Juror was taken suddenly ill, and it be- ing considered by a Physician, who by direction of the Court bad visited him in the Jury room, that his attack was of an alarm- ing nature, and required mimediate medical aid, the parties not being able to come to any agreement, His Honor discharged the Jury. J. A. Street at this Term moved for a Rule ww/, for a non- suit on the point reserved at the trial. Sed per curiam. The point cainiot now be considered ; there is no verdict to set aside ; the cause has not in fact been tried, but stands as a Remanet. Rule refused. ,f;. .n.., j..(f' FLAHERTY vs, SAYRE. This was an action of Trover tried before Carter, J. at the We&tmorland Assizes in September last. The Plaintiff offered in evidence a Bill of Sale to him of the property in question, made by John Smyth and William Smyth. F 66 MICHAELMAS TERM iil!!!! i' ■ ;' ik- Tlie instrument was attested by two witnesses, one of whom was proved to be out of the Province, and evidence was given of his nand writing; the other witness was the wife of John Smyth be- fore mentioned. The Plaintiff proposed to give evidence of her hand writing, but it appearing that she was within the Province, J. Stewart for Defendant, objected to the evidence as inad- missible, the witness ought to be produced. A. Stewart contended, that the witness being tha wife of a person immediately interested in the event of the suit, was in- competent, and could not be examined, if produced ; and he sub- mitted that the Deed was sufficiently proved by the evidence of the hand-writing of the other subscribing witness, that it was unnecessary to go further, as it appeared that Mrs. Smyth, at the time of her attestation was incompetent, the Deed was therefore the same as if the name did not appear on the face of it. He cited 5 T. R. STl, Swire vs. Bell, and Roscoe's Evidence, 68. E. B. Chandler and J. Stewart submitted that the incompe- tency of the witness was occasioned by the interest of her hus- band, through whom the Plaintiff claimed title to the property, and they had it in their power, by releasing the husband, to make her competent — knowing her to be interested, the Plain- tiffs had made her a witness, and could not now object to her competency. 3 Camp. 195, ii/bwdrywootZ us. P^acocA:. The deed could not be read without the testimony of the attesting witness. Carter, J. was of opinion that the witness should be pro- duced. The Plaintiff not being able to produce the witness, and the Bill of Sale being the foundation of their action, they became non-suited. The Solicitor General at this Term moved for a Rule Nisi to set aside the non-suit for the improper rejection of the testimo- ny. No notice of the motion had been given to the Judge. Chipman, Chief Justice. — The rule requiring notice of motion to be given to the Judge, appears not to have been fully understood, and therefore as Mr. Justice Carter has his notes in Court we will hear this motion, but it is to be distinctly under- stood that the Rule requiring notice to the Judge of motions for New Trials is to apply to all cases, whether the points be reser- ved or not. The Solicitor General^ in addition to the arguments used at the Trial, urged, that if the wife had not been a witness then the proof necessary to establish the deed was completed, that she being incompetent at the time of the execution, the attesta- m ti m t( '% o 1 ti w 1 I ti 9 a S r IM THE SITXH TEAR OF WILLIAM IV. 67 e of whom was i^as given of his ohn Smyth be- hand writing, t ence as inad- th3 wife of a suit, was in- i ; and he sub- le evidence of that it was Smyth, at the was therefore ^e of it. He idence, 68. the incompe- it of her hus- the property, husband, to > the PJain- object to her • The deed ing witness. >uld be pro- 2SS, and the hey became ^ule Nisi to he testimo- Judge. I notice of I been fully !iis notes in % under- noJons for s be rescr- leflts used tness then eted, that e attesta- tion by her was a nullity. It was unnecessary for the plaintiffs to bring or produce the witness, if in fact sl)e would have been objectionable when produced. The learned Counsel took a dis- tinction between this and the case if the wife had been the only witness, then there would have been no eviiience to establish the Deed ; at the trial moreover, evidence of tlie vendor's hand wri- ting was offered. He cited the case mentioned at Nisi Prius, and also 1 Star. Ev. 103, S37. On a subsequent day the Court refused the rule. Chipman, Chief Justice. The ground of the incompeten- cy of a wife as a Witness, is the interest of her husband in the subject matter of the suit ; but it did not appear in the present case that the husband had any interest in the suit. His Honor mentioned a case in 1st Strange, 504, cited in Bac. Abr. Til. Ev. '•■ A., where in an action for goods sold, a wife was admitted to ' prove the goods delivered on the husband's credit, and observed ' that this case was much stronger; the husband in the case in" Strange might have been subject to a legal demand in conse- quence of the wife's evidence ; it did not appear that even this would be the effect in the present case. If this objection to the wife's competency should be sustained, a wife never could be a witness to prove the signature of her husband. The Solicitor General and J. Stevom-t for Plnintiff". J. Stewart and E. li. C/iundler for Defendant. MARTINDALE and WIFE vs. MURPIIV and WIFE. This was an Action on the case fc r defamatory words spoken by the Defendant's wife of tlie wife tf the Plaintiff, tried before Parker, J. at the last Northumberland Circuit, to which the General Issue was pleaded, and a verdict given for the I'laintiff" on the third count, with ^32 damages. The declaration contained the usual averment of good cha- racter, and that the v/ords were spoken with tiic intent to impute unchastity — the expressions charged were very gross, but the material words were, " She is a d — d strumpet^ and J. F's whore ," there was no inuendo explanatory of the words. J. A. Street for the Defendant, moved in arrest of Judgment, and contended that the words were not actionable in themselves, nor had the Plaintiff's put such a construction on them in their declaration as would make them actionable, and there was no allegation or proof of special damage. The Act of Assembly, 31 Geo. 3, c. 5, which had been referred to at the trial in sup- port of the action, applied only to ri^'rtain specific offences,- viz. MM ii^ 68 MICHAELMAS TER-V Incest, Adultery, and Fornification, neither of which|were neces- sarily comprehended under the term unchastity, as that term would equally apply to the adultery of the heart, which was in the Scripture considered as much a crime, as the commission of the act itself; unchastity might be imputed without any charge of the offences to which the act of Assembly refers, and the De- claration in order to sustain the action ought to have charged a specific imputation of adultery or fornication. Per curiam. Under the Act of Assembly, a charge of this nature is clear- ly objectionable in this Province, if the words are such as to im- pute the offences thereby made actionable in the temporal courts. The words in this Declaration, calling a married woman a strum- pet and J. P's whore, admit of no ambiguity, or doubt. Un- chastity is a general term, like theft, which may include various particulars. To call a man a sheep stealer, thereby meaning to impute theft, is an analogous case. There is nothing in the in- ducement (supposing it to be material,) which can be taken to contract or abridge the natural and commonly received import of the words spoken. Rule refused. W. Carman for Plaintiffs. Street «§- Kerr for Defendants. CLARKE vs. ROBINSON. Assumpsit, tried before Parker, J., at Northumberland, in September last. Verdict for Plaintiff. J. A. Street for Defendant, moved on affidavits, for a Rule Nisi to set aside the Verdict. The affidavits stated that a release had been executed by the Plaintiff previous to the trial, and that he had not authorised the bringing of the action. The release was annexed to the affidavits, and contained a certificate that the Plaintiff had not authorised the bringing of the action ; this was dated 19th August, 1835. It appeared that the Plaintiff former- ly resided in this Province, but had left it some years ago, and was now living in the United States, separated from his wife, who had been left by him at Miramichi. This action was instituted by her for wages due her from De- fendant for services performed subsequent to her husband's de- parture. When the case was put at issue, the Defendant went to the residence of the Plaintiff at Calais, in the State of Maine, and procured a full release. The Defendant's affidavit further 'Ww"' ;ii. IN THE SIXTH YEAR OF WILLIAM IV. 69 i^were neces- is that term I'hich was in >mniission of any charge and the De- 'e charged a ure is clear- ch as to im- oral courts, lan a striim- 3ubt. Uq- ude various meaning to g in the in- )e taken to ved import erland, in >r a Rule t a release and that le release e that the this was ffformer- ago, and his wife, rom De- >nd's de> ant went f Maine, further stated that he was prevented by illness from getting to Mirami- chi in time for the trial, and that he did in fact arrive the even- ing of the day on which the case was tried. It was urged tliat although the action was for the services of the wife, yet being in the name of the husband, who alone was entitled to the money if recovered, his release and acknowledg- ment were sufficient to induce the Court to interpose and prevent his having the benefit of a verdict which had been obtained in consequence of the return of the Defendant having been delayed by illness. An application had been made at Nisi Prius to put off the trial on an Affidavit of the Defendant's Attorney, which however was admitted to be insufficient. The following authorities were cited — 8 Taun. 206 ; Cov. and Hughes 144., 1442 ; 10 Mod. Rep. 202 ; 3 Chitty's Arch. Pr. 927 ; 2 Salk, 648 ; 3 Taun. 484 ; Pratt. Dig. 629. Per Curiam. This is an application to the equitable Jurisdiction of the Court ; to re-open a cause for the purpose of admitting an un- conscionable defence. — The plaintiff had abandoned his wife, she was compelled to seek her own livelihood, and earned an amount by her industry, to recover which she instituted this action ne- cessarily in the name of her husband ; the defendant did not attempt to meet her claim on any just or meritorious ground, but went out of the Province in quest of the plaintiff in order to procure a release, which would cut up by the roots the demand against him ; had he been in time, probably in Law, the release il pleaded, Puis darien cojitiimance, would have been a bar to the action, but having failed in that, he is not entitled to the least favor ; he has not shewn that any actual adjustment of accounts or fair settlement took place between him and the Plaintiff, upon which the discharge was founded ; he has no right to appeal to the equitable jurisdiction of the Court. Rule refused. "^'* End 4- Jfheckr for Plaintiff. J. A. Street and Kerr for Defendant. HOLMES vs. CLARKE. This was an action of Trespass tried before Parker, J. ut the Carleton Assizes in September. ^ The declaration contained several counts for Trespa , quare elauiumfregity and others, de bonis asportatis. Mil 70 MICHAELMAS TERM 11 4 i An agreement was put in evidence by the plaintiff by which it appeared that the defendant had let to the plaintiff the premi- ses in question for the years 1834 and 1835, and covenanted "to Jtirnish a team for the use of the farm'" in a subsequent part of the instrument it was mentioned that " defendant should have the mare to ride 'when not employed on the farm." The Defen- dant reserved a pai*t of the house and farm to himself, and had a right of access over every part of it. It appeared that the defendant was dissatisfied at the plain- tiff's manner of working the farm, and had declared that if he did not funish more labour, he, the Defendant, would not allow him to remain on the place or use the team. It was proved that there was a team of horses on the farm belonging to the defendant which the plaintiff had been in the habit of using in ploughing and other farming operations. On the 7tli of May the plaintiff and his son took the horses of this team from the barn, and were getting them ready to put to the plough, when the Defendant interfered with much vio- lence, and took them from them, and returned them to the barn. The other trespasses complained of were abandoned, and the Plaintiff''s case rested upon this alone. The Solicitor General and Berton moved for a non-suit, on the ground that the horses in question were the property of the defendant, in his barn, and in his possession ; and that the fact proved did not amount to an act of trespass, but a breach of con- tract. The plaintiff had not such an exclusive possession of the horses as would support trespass. Parker, J. overruled the objection, but reserved the point for the consideration of the Court in banc. The learned Judge left it to the Jury to consider whether the team of horses in ques- tion was that which by the terms of the agreement was to be furnished by the defendant ; stating it as his opinion, if that were the case, that the plaintiff had at the time such a possession as would enable him to maintain trespass even against the defen- dant himself for forcibly taking them away. His Honor con- fined the attention of the Jury in assessing the damages strictly to the Act of Trespass, and the injury immediately resulting to the plaintiff thereupon. A verdict was returned for the plaintiff with j€4) damages, to set aside which, and enter a non-suit, The Solicitor General now moved for a Rule Nisi ; he con- tended that the Act of the Defendant was only a refusal to al- low the plaintiff to use his, (the defendant's) horses, or to fur- nish a team, and that if the plaintiff had thereby sustained damage, his remedy was by action on the agreement, and not for trespass. IN THE SIXTH YEAR OF WILLIAM IV. 71 ff by which ' the premi- nanted " to lent part of hould have rhe Defen- If, and had t the plain- that if he I not alloMT R the farm leen in the ions. the horses ady to put much vio- 3 the barn, i) and the n-suit, on srty of the t the fact ch of con- lion of the the point led Judge s in ques- I'as to be that were lession as le defen- nor con- strictly ulling to plaintiff uit, he con- il to al- to fur- ustained ^ not for (Chipman, Chief Justice.^ — If the plaintiff had been plough- ing, could defendant have t'xken the horses from the plough.) If the horses were engagfcd in ploughing, then the presump- tion would have been that the defendant had allowed them to be taken for the day ; but as it was when the plaintiff was about to take them, the defendant stopped him. The property was in the defendant, and even if the plaintiff had a right to take the horses without reference to the defendant, his right was only that of a tenant in common, and would not sustam trespass— 1 T. R. 658. Chipman, Chief Justice.' — Had no doubt upon the ques- tion. By the agreement the defendant let to plaintiff his farm for two years, and agreed to provide a horse team ; the import of the expression was that the plaintiff should be put in posses- sion of the team for the use of the farm. The subsequent part of the agreement explained any ambiguity as to the intention of the parties, and provided that the defendant should have the use of the Mare when not engaged at farming, for riding ; the definite article implied a specific team provided. The question put to the Jury was, whether the horses were the team provided for the use of the farm. In point of fact they were not in the sta- ble, but were in the plaintifi's hands for actual use on the farm, when the Defendant took them. I think a clear case of posses- sion was proved, and that the verdict should not be disturbed. BoTSFORD, J. — The agreement produced was a lease of a farm on shares, in a way very common in the country. The de- fendant reserved a part of it ; all the rest was let to the plaintiff on certain conditions. The defendant had a qualified right to the mare to use her for riding, when not engaged on the farm. The verdict establishes that the horses were furnished under the agreement, and it appears that they were in actual use- when they were taken they were in the possession of the plain- tiff, and the defendant had no right to take them. Carter, J. concurred. Parker, J. — I thought at the trial, and so stated, that it would have been better if the action had been on the agreement, as thereby the material matters in dispute between the parties would have been settled, which were necessarily excluded from consideration in this action, and I took much pains to confine the attention of the Jury strictly to the particular act of trespass proved. There was direct evidence that a team of horses was on the farm, which the plaintiff had been in the habit of using in the farming operations, to the exclusive possession of which for that purpose I considered him entitled under the agreement at the time they were taken away by the Defendant. Mm^ < III 72 MICHAELMAS TERM The Jury have by their verdict established the point that the horses were in the plaintiff's possession under the agreement, and I think there is no ground to disturb it. Rule refused. Beardslejf and Wilmot for Plaintiff. The Solicitor General^ Berton^ and Needham for Defendant. u\ BRANSFIELD vs. BISHOP, WHITE, and Two Otheri. Trespass for Taking Cattle, tried before Parker, J. at the Carleton Circuit in last September. There was evidence that the Plaintiff's Oxen had been at different times employed in the work of the several defendants, and that one of the oxen while ploughing for White had been se- riously injured, and afterwards died. But supposing these to have been acts of trespass, there was nothing to show a connection be- tween the defendants, except a declaration made by White, that *^theif had killed the Ox, and ought to pay Bransfield for him." At the close of the Plaintiff's case, the learned Judge requi- red the Plaintiff's Counsel to elect against which of the Defen- dant's he would proceed. BertoHy for Plaintiff, elected to proceed against Bis.hop, and claimed also to be allowed to proceed against While, because his admission was sufficient to connect him with any other de- fendant. This not being objected to by Robinsofi, the defen- dants* Counsel, was allowed, and the other two defendants were thereupon acquitted. On the part of the defendants, evidence, was given that the plaintiff's agent had the cattle, and had used them in the service of the defendants respectively, and some evidence of his autho- rity from the plaintiff was also given. His Honor directed the Jury that they might find against the two defendants jointly, or against either of them individual- ly, if jointly, then only for the trespass proved against Bishop ; and left it to them to consider if the cattle were in the possession of the plaintiff's agent, and if he had authority to use or permit them to be used, or if the defendants were ignorant of his want of authority, stating it as his opinion, that the defendant's act in using the cattle by permission of the plaintiff's agent, was not a trespass ; if the oxen had been left in the agent's possession^ and the defendants were ignorant of his want of authority so to em- ploy them. ttf THE SIXTH YEAR OF WltLIAM IV. 7» point that the le agreement, or Defendant. ^WO OTHERf. ^ER, J. at the had been at l1 defendants, ! had been se- these to have )nnection be- ' White, that eld for him." Judge requi- fthe Defen- Bisihop, and ite, because y other de- the defen- ndants were en that the the service his autho- against nd individual- st Bishop ; possession J or permit >f his vi^ant ant's act in vvas not a ssion> and so to em- Berton for plaintiff, moved to set aside the verdict as being iigainst evidence, and contended that the admission of White was conclusive against him, and without reference to the other defendants, entitled the plaintiff to a verdict against him. Sed PER CURIAM. White's admission might be sufficient to charge him with the value of the ox, but connected with the other evidence is cot sufficient to make him a trespasser ; it is consistent with his ad- mission to suppose that he hired or obtained the oxen from the authorised agent of the plaintiff, and if so, and the ox were in- jured, the plaintiff's remedy would not be by action of trespass. Parker, J. intimated that he had submitted the cause to the Jury against both defendants, in the manner already stated, at the instance of the plaintiff's counsel, which was not objected to on the other side, but he thought it had been lefl much more broadly than even the plaintiff's case justified. Rule refused. Berton and Needham for the Plaintiff. L. Robinson for the Defendants. FERGUS vs. M'INTOSH* Chandler ihoved on affidavit to have the expenses of issuing a Commission to examine Witnesses, and in taking the deposi- tions allowed in the costs of the cause. Per curiam. Let the costs of the Commission and depositions be made costs in the cause ; under the late Act of Assembly such expen- ces are made part of the costs. L. Robinson — Am Cur mentioned a case* Barlova vs. JTie Saint John Marine Insurance Company i \n Easter, 1830, where on motion the Court ordered a review of the taxation, and the Master to allow £\Q \Qs» costs of executing a Commission. l!l!ll Av mm I i liilf ■41 m. MICHAELMAS TERM, 6th Wm, 4tii, 1835. OEl¥ERAL RULES. I. It is Ordei-ed, That there shall be Sittings of Nisi Prim for the County of York, after the respective Terms of this Court, on the following days in each and every year, that is to «ay:— ' Sittings after Hilary Term, on the Third Tuesday in Febru- iny. Sittings after Trinity Term, on the Fourth Tuesday in Jim«. Sittings after Michaelmas Term, on the Fourth Tuesday in October. The said respective Sittings to continue for so long a time, as in the opinion of the Judge holding the same, may be necessary for the dispatch of the business depending. II. It is further Ordered, That the Sheriff of the County of York do summon and return Grand Jurors and Petit Jurors, to attend at the several Sittings in that County, now appointed or hereafter to be appointed, in like manner as has been here- tofore accustomed with regard to the Terms of this Court: and that hei'eafter no Jurors be summoned to attend at the Terms, without special order. HI. it is further Ordered, Tiuit all general Rules of this Court, which relate to the entering of Causes, the filing of Nisi Prius Records, or other proceedings at Nisi Prius, shall apply to, and be in force at, the Nisi Prius Sittings in the County of York. IV. It is further Ordered, That in all Actions in which the Issue is made up and the Venire facias Juvatores is awarded, as of the last return day, that is to say, the second Saturday after the first Tuesday, in any Term, such Writ of Venire fa- cias Juratores may be awarded, and made returnable forthwith. V. It is further Ordered, That the matters contained in tlie Crown Paper and Special Paper respectively, shall come on to be argued on the second day m each Term, any former Rule to the contrary notwithstanding. GEVERAL RULE3. 75 VI. It is fiirtlifr Ordored, Thnt no motion for a new trial shall be made after llie first Saturday in any Term. VII. It is lurtiitM Ordt^rcd, That in all cases, where applica*' tion shall be made to a Judge in Vacation after judgment by default, to make in(|iary or assessment, under the Act of Assem- bly 5 Will. 4, c. 37, s. f), there shall be produced to the Judge a certificate or memorandum, of the day on which interlocuto^j- judgment was signed or judgment by default entered, signed by the Clerk of the Fleas or his deputy : and that uo such inquiry or assessment shall be made, unlejs such certificate or memo- randum be so produced. VIII. It is further Ordered, That every mesne process, in any Action, shall contain the names of all the Defendants, if more than one, in the Action. IX. It is lurlher Ordered, That the names of any number of Witnesses may be put in one W^rit of Subpoena. X. It is further Ordered, That in all Actions of Ejectment, the notice to appear, may be for any return day specifically, but when the notice to appear is for the Term generally, the day of appearance shall be the first day of the Term. XI. It is further Ordered, That in all Actions of Ejectment, there shall be fourteen days exclusive between the day of ser- ving the declaration and the day of appearance, whether the person served with the declaration lives within the County where the Court sits or not, any former Rule to the contrary notwithstanding. XII. It is further Ordered, That when a Rule to shew cause is obtained to set aside an Award or Warrant of Attor^* ney, or a Judgment entered upon an Award or Warrant tof At- torney, the several objections, intended to be insisted upon at the time of making such Rule absolute, shall be statecf in the Rule to shew cause. XIII. It is further Ordered, That any Attorney, who on his being admitted an Attorney, was a Graduate of any College, may be called to the Bar after the expiration of one year from the time of his admission as an Attorney. XIV. It is further Ordered, That the above Rules shall take effect on the first day of January next. WARD CHIPMAN, W. BOTSFORD, J. CARTER, R, PARKER. Ill mmmmfmi~- CHARLOTTE CIRCUIT. August, 1835. Before BOTSFORD, J. DEWEY against ATKINSON. This was an action of Assumpsit ; the Declaration only con- tained the common counts. J. W. Chandler for the Plaintiff, offered in evidence under the account stated, a parol submission between the parties, and an award made thereon, and cited 1 Esp. 194, Roscoe's Digest 256, and 2 Phil, on Ev. 112. N. Parker^ for Defendant, objected ; the Plaintiff should have declared on the award, which was the usual practice, and the only decision in the Plaintiff's favor was the dictum of Chief Justice Eyre, in the case in Esp. which was unsupported by any modern authority. BoTsroRD, J. reserved the point, with liberty to the Defen- dant to move to enter a nonsuit. The submission was in wi-iting, and expressly referred to a certain account between the parties, to be settled and adjusted by the Arbitrators. It was insisted by Parker, that before the award made by the arbitrators could be read in eridence, the account referred to should be produced as part of the necessa- ry evidence for the Plaintiff, and in fact part of the submission itself; — unless the account were produced, it could not be known whether the award was consistent with the submission. The Plaintiff moreover was precluded by his bill of particulars from recovering ; it purported to be for a balance due on an account stated, and therefore the Defendant was completely G iMH iifliiiliinii'iiiiyir 111:,! /.ii.Mi 78 CHARLOTTE CIRCUIT — TRIN. VAC. l[} taken by surprise. The Plixintiff should have stated the award m his particulars, BoTSFORD, J. — The question is — could the Defendant from these purticulars know what he was to meet, if they had stated it as so much due on an account stated, as would appear by an award made that would have been different ; but here they are too vague, and the party is not made sufficiently ac- quainted with what the Plaintiff is proceeding for. I shall therefore reject the evidence. The Plaintiff obtained a verdict on some other charges. J. IV. Chandler for the Plaintiff. 2^. Parker and Hill for the Defendant. Doe on the several Demises of M'KAY and WIFE, and FOSTER, vs. HOFFS. J s 1 !i 1 iiifiiiiiilli j The lessors of the Plaintiff claimed title to two-third parts of the Lot No. 109, in the Penobscot Association Grant, granted to Moses Gerrish, under a deed regularly recorded, . t which had not been acknowledged by the grantor ; one of the w ifnes- ses had proveJ the execution before the Register previou .. to the registering of the deed in the mode pointed out by the Act of Assembly; on this deed being offered in evidence, N. Parker^ for the Defendant, objected to its admission, un- less the execution was proved in the usual way, as a deed not registered; — he urged that the section of the Act which authori- sed the admission of a deed recorded without further proof only related to deeds the execution of which was acknowledged by the grantor himself, and that the subsequent Act enacted merely that the Register should record deeds proved as this deed was, but did not make the certificate of registry sufficient proof of such deeds. BoTSFOUD, J. was of opinion that the deed was admissible, but reserved the point. The deed when put in, appeared to be erased in several im- portant parts. N. Parker then contended that this appearing on the face of tlie deed should be explained. Alexander Stewari for the Lessors of the Plaintiff, insisted that the Act of Assembly inverted the Common Law principle, and dispensed with the necessity of calling the subscribing wit- ness to a deed to explain erasures or alterations, consequently it must do away with the necessity of any proof as to erasures. jSc^^^f^^ IN THE SIXTH YEAR OF WILLIAM IV. • 79 ted the award sfemlant from , if they had would appear nt ; but here iifficientlj ac- for. I sliall ciiarges. kVIFE, AND lird parts of mt. granted J ' 'f which the \ ' es- previou.. to t>.y the Act iJssion, un~ a deed not ch authori- proof only ledged by ted merely deed was, t proof of dmissible, veral ini- lie face of ', insisted arinciple, bing wit- icquently erasures. ■■■€ ')5 hardly leed made in the early settlement of the Province without erasures ; and if the objection should pre- vail, it would do away with all benefit under the Act of Assem- bl}?^, which dispensed with the strict proof of deeds, as in almost all cases it would be necessary to produce the subscribing wit- nesses to explain erasures and alterations. BoTSFORD, J. — I think there is something in the objection, but I shall allow the deed to be read, reserving the point. It was proved by a witness who had examined the deed with the Record, that no alteration had been made subsequent to its being registered. ; The lessor of the Plaintiff rested his case on the proof of the land in question having been originally granted to one Moses Gerrish, who, it did not appear, had ever been in possession of the premiaes, and on a conveyance from Gerrish to the Lessors of the Plaintiff. On the part of the Defendant, it appeared that a man named Jacob Young, had some time previous, and up to the year 18 J 8, been in possession of the land, and cultivated and improved it ; that in that year he had conveyed to the de- fendants, who had ever since remained in possession. It also appeared in evidence that Jacob Young, in a conversation had v.-ith one of the witnesses, eighteen years ago, told him that he had the lot in question from one Charles Dupnach ; that Dup- nach was to have a certain part from Gerrish — he believed one third for settling it; that he (Young,) was to have Dupnach's part ; and that Young said when Gerrish called for his part he would let him have it; upon winch tacts, N.Parker, in addres- sing the Jury, took the four following objections to the Plain- tiff's right to recover. 1st. That there was no right of entry in either of the lessors of the Plaintiff at the time of the demise laid in the declaration. Moses Gerrish having been disseised, and the premises convey- ed by the disseisor Young to the Defendant. 2d. That even if ejectment could have been brought by Ger- rish, there was no right of action in the lessors of the Plaintiff, because the deeds frosa Tvloses Gerrish to Foster, and from M'Kay and wife to Foster were executed while the premises were in the adverse possessiosi of a third person, consequently no title could pass by either iA' tiiose conveyances. 3d. That Moses Gerrish had lost his right of entry, not ha- ving entered within twenty years alter his title accrued. 4.th. That there had been an adverse possession of upwards of twenty years by the Delendant. On the first point he urged, that Jacob Young having been in possession until 1818, and having then conveyed all his estate ••^•■"'^""'■^'"■•^iflmmiiWim^ M\ M 80 CHARLOTTE CIRCUIT — TUIN. VAC. to the Defendant, that Act was a disclaimer of title in any i,.,her person, and amounted to a disseisin, therefore the defendant, the alienee, came in by title. Jacob's Law Diet. tit. disconti- nuance ; Adams on Ejectment, 1, 8, 10. On the 2d point, he contended that deeds of conveyance made by a party who had a mere right of entry to land, and while another person was in the adverse possession of that land could not pass any thing to the Grantee. Undoubtedly he urged the operation of the Province Law allows property to pass without a formal Livery of seisin, but it cannot be extended to all' party to convey who has not seisin ; it cannot enab' .y to convey what he has not got ; the Act only dispeu .:> with actual livery of seisin, which is in fact a delivery of possession ; whenever therefore a person could not give livery of seisin at Common Law, he cannot convey under that Act. It will not be contended that a person might maintain trespass on the pos- session given him by virtue of the Act of Assembly, without ever having had any other possession. He also cited the fol- lowing authorities — 4 Dane's Abridgement, 15 ; 1 Johnsoi s Cases, 85; 1 Schoale and Lefroy, 65; 4 Cruise's Digest, 112. On the 3d point, he cited Adams on Eject. 45. A person must enter within 20 years after his title accrues. In a recent important case brought by the Corporation of Saint John, this very objection was taken, and the Judge non-suited the Plain- tiif. — (Judge Botsford. — If there is an adverse possession.) — But without that a Plaintiff would be barred, even if a per- son had but ten years adverse possession. As to adverse possession he cited 1 Esp. 363, 229 ; 1 Lord Raymond, 741 ; 1 Cowper, 217. Botsford, J. — Left the question to the Jury as to the ad- verse possession, and told them that if they should be of opi- nion that Young and Hoffs had possession of two third parts of the lot, and held the same for and under Gerrish, the objec- tion made by the Counsel for the Defendant would not avail him. But if they thought that there had been an adverse pos- session of twer ty years, (and he did not see how they could find otherwise,) their verdict must be for the defendant. V'^rdict for Defendant. J. W. Chandler and A. Stewart for the Plaintiff. N. Parker and Hatch for the Defendant. I i^'Hiii' IN THE SIXTH YEAM OF WILLIAM IV. ^eyance made d, and while at land could he urged the pass without 2d to alio ^ ibl. iy peu;u„a with possession ; of seisin at It will not on the pos- )Iy, without ted the fol- 1 Johnsoi .;, digest, ll ; I Lord the ad- be of opi- hird parts the objec- 1 not avail verse pos- could find DOK ON THE DEMISE OF WILSON AGAINST MILLIKIN. A Grant was offered in evidence without any seal attached, but a piece of an old seal was pinned to the Grant. The Solicitor General for the PlaintiflF, contended that ne Grant was inadmissible, unless it was first proved that the piece of seal pinned to it was originally annexed *o the Grant. A witness was then called who proved that he had had the grant in his possession more than thirty years ; that it then had a seal attached to it n: the usual way, and he thought the piece pinned to it was a part of the same seal. The Grant, on this evidence, was admitted. In the course of the cause an objection was taken by A. Stewart, for the Defen- dant — that the King cannot grant land which is in the peacea- ble possession of a subject, without office being previously found ^ and the land thereby vested in the King. But BoTSFORD, J — was: of opinion that the King in such a case was to be considered in possession, and that no office was neces- sary ; the subject would only be considered as an intruder. Verdict for the Defendant. The Solicitor General and A. 1 . Street for the Plaintiff*. A. Stewai'i and J. W. Chandler tor the Defendant. WATERS against WILSON. • Assumpsit on a special agreement made between the Plaintiff" and the IDefeudant, for the manufacturing and delivery of a quantity of Logs. The Plaintiff proved a written contract made between the parties, and having established the quantity of logs made under the contract, and their delivery to the Defendant, there rested his case. The Defendant then offered in evidence a contract nearly similar in its terms to the one produced, but which was under the hand and seal of the Plaintiff, there was no subscribing wit- ness to the contract, but the Plaintiff''s signature was proved. J. W. Chandler for the Plaintiff' objected to the contract be- ing admitted on two grounds. 1st. That a seahng and delivery should have been proved ; and 2dly. That this was an action brought by the Plaintiff on a parol Contract, signed by the De- fendant, and the deed now offered was signed and sealed by the Plaintiff alone, and therefore there was no mutuality shown by that contract as between the Plaintiff and the Defendant. On the 1st point, he urged that the sealing of the deed must always i IP i,lll ill', I'lllii ffll I! 82 CHARLOTTE CIRCUIT TRIN. VAC. be proved, otherwise a party might put the seal on himself and thereby defeat the Plaintiflf 's remedy. — He cited 1 Saunders* Pleading and Evidence, 423. Deed. The Solicitor General in reply, cited Roscoe's Ev. TO, 1 Phil, on Ev. 457 ; 7 Taunt 251. BoTSFORD, J. expressed a doubt on the point ; he seemed to think that the cases cited by the Solicitor General, (which deci- ded that proving the handwriting of a party executing a deed to which there is no subscribing witness, was sufficient,) meant to imply that the witness must have seen the party sign the instru- ment. He however admitted the Contract, reserving the point. The Solicitor General then moved for a Nonsuit. It ap- pearing that there had been a contract under seal made by the Plaintiff for the deliverer of the logs in question, he should have resorted to that as being the highest security, and could not maintain assumpsit. 1 Chitty on Pleading, 117. 2d. There appeared a variance between the Contract and the declaration, and there had not been sufficient proof of some of the averments. J. W. Chandler insisted, that at all events the Plaintiff might resort to the Common Counts ; but BoTSFORD, J. having intimated an opinion in favour of a non- suit, suggested a reference, which was acceded to by the par- ties, and the cause was referred. J. W. Chandler and Jack for the Plaintiff. The Solicitor General and A. L. Street^ for the Defendant. TURNER against HANSONS. Trespass quare clausum freglt. A witness called on the part of the Plaintiff was objected to on the ground that he had executed a deed of bargain and sale of the locus in quo to the Plaintiff. But it appearing that there was no covenant for title in the deed, . BoTSFORD, J. decided that the witness was competent, and that the objection could only go to his credibility. Another of the Plaintiff's witnesses had stated in his exami- nation in Chief that he owned one of a tier of lots butting on the Plaintiff's land, which were known by the name of the Penob- scot Lots. On his cross-examination, A. Stewart^ for the Defendants, asked the witness what quantity of land his lot ought to contain. The Solicitor General, for the Plaintiff, submitted that the question could not be put in that way, the witness could not be 'i 1 IC. on himself and d 1 Saunders' Ev. 70, 1 Phil. he seemed to 1, (which deci- iting a deed to ent,) meant to gn the instru- 'ing the point, nsuit. It ap- made by the i should have ind could not itract and the >f of some of laintifF might J 3ur of a non- by the par- defendant. objected to tin and sale J that there etent, and his exami- ting on the he Penob- 'efendants, contain. 1 that the uld not be IN THE SIXTH TEAR OF WILLIAM IV. asked as to the contents of the Grant, unless the Grant itself were produced ; the witness might be asked what land he held, but not what the grant gave him. A. Stewart insisted that on a cross-examination he had a right to put the question ; the witness having been examined as to his owning one of the Penobscot lots. BoTSFORD, J. — I cannot allow the question to be put in the way proposed ; the witness may be asked what he calls his own lot, but not what was granted to him. Before you can do that you must produce the grant. There was a verdict for the Defendants. The Solicitor General and A. L. Street for the Plaintiff. A. Stewart and J. W. Chandler for the Defendants. TURNER against HANSONS. '■ This was another action of Trespass, quare clausum fregit, between the same parties, but on different land. On the part of the Plaintiff a deed upwaFds of thirty years old, and recorded, was offered in evidence ; but the acknow- ledgment before the Magistrate was merely in these words, " acknowledged before me." A. Stewartj for the Defendants, urged that the acknowledg- ment was)|not sufficient, and therefoie the deed should be proved as if it had not been recorded. But, BoTSFORD, J. admitted the deed, and said that the deed be- ing so old, he would presume that the acknowledgment had been made according to Law. A witness was then called, who, on his examination, it appear- ed, was entitled, as tenant by the courtesy, to an eighth share of the lot on which the trespass had been committed ; he had never conveyed his right to the Plaintiff, but his children had. He was then objected to by the Defendant's Counsel, as being an interested witness. The Solicitor General for the Plaintiff submitted, that it could be no objection to the competency of the witness, that this was merely an action for an injury done to the possession of the Plaintiff, and did not decide the title to the land, consequently the verdict in that cause could not affect the witness. He cited the case of a landlord, who might be called to prove his tenant in possession ; also the case of an underwriter who was called as a witness for another underwriter on the same policy. BoTSFORD, J.— I think the case of a landlord is different ; here there has been an adverse possession ; the witness may I' 'V I'l , III' . : p' W m CHARLOTTE CIRCUIT — TRIN. VACi wait to see the result of this action, anil if the Plaintiff recovers he may then proceed for his share ; he is therefore, I conceive, interested in the result. Under the circumstances, however, and there being no plea of liberum tenementum on record, I shall admit the witness, and let the objection ^p to his credibility* One of the acts of Trespass laid in the Declaration, was for erecting a house on the Plaintiff's land, and one of the Plain- tiff's witnesses having stated that he saw two of the Defendants at work at the house on a certain day, but that the third was not present. A. Stewart for the Defendants, insisted that the Plaintiff ha- ving given evidence of a trespass by two, he was then bound, and having made his election, that he could not now go into evidence of a trespass committed by three. The Solicitor General contended that the Defendant's Coun- sel was premature in the objection he had taken, as he should have waited till the evidence for the Plaintiff had been gone through with ; and then if all the Defendants had not been proved to have been concerned in that act of trespass, he must of course make his election ; but he had a right to show that all three were originally concerned in building the house. BoTsroRD, J. — No doubt where a person proves first a joint act of trespass, he cannot afterwards go into evidence of a tres- pass committed by other parties ; but this is an action of tres- pass for building a house, not two or three houses ; the build- ing the house is therefore a continued act of trespass, though committed at different times. — In the Gully case which has been mentioned by the Counsel for the Plaintiff, the action was brought for building a dam, and the Plaintiff having proved that at one time all the Defendants were present at the dam, he was afterwards allowed to shew that at other times some of the defendants were working on it. This case is therefore pre- cisely similar in principle to that. The lot in question formerly belonged to a man named Ben- jamin MiUikin, who left eight children, from most of whom the Plaintiff had purchased. Norman Millikcn, the eldest son soon after the death of his father, being indebted'to one of the pre- sent Defendants, gave him a deed of a particular part of the lot, containing about twenty-one acres, which part, that defendant, by the consent of the other heirs, had taken possession of under the deed, and had continued to hold ever since ; but there had never been any partition of the land among the heirs. On this evidence. The Defendants' Counsel moved for a non-suit, on the ground that by the Plaintiff's own showing, he and the Defend- ants were tenants in common, and consequently trespass was ^ \ IN THE SIXTH YEAR OF WILLIAM IV. 85 ntiff recovers Jj I conceive, however, and cord, I shall s credibility* tion, was for of the Plain- e Defendants he third was Plaintiff ha- then bound now go into Jant's Coun- »s he should been gone id not been ass, he must to show that house. 3 first a joint ice of a tres- tion of tres- ; the build- ass, though ich has been action was nng proved at the dam, nes some of erefore pre- lamed Ben- f whom the ;st son soon of the pre- ■t of the lot, defendant, )u of under t there had !. On this not maintainable. He urged that the assent of the heirs to the conveyance made by Norman Millikin could not affect the question, as they were at that time under age ; they had all, therefore, as much right to that part of the lot as to any other ; all the Deeds they had given to the Plaintiff tended to shew that, for in all of them they had released their right and title to the whole lot, describing it by metes and bounds, and compris- ing as well the parts sold by Norman Millikin as the other part. The Solicitor Generalf contra, admitted that if the Plaintiff in this case w«re seeking to recover damages for trespass com- mitted on that part of the lot sold to the defendant, then the ar- guments advanced by the Plaintiff's Counsel would apply, as perhaps as to that part the parties were tenants in common ; but even supposing them to have been tenants in common of the whole, still he contended that where there has been an agreement between tenants in common, that each shall hold a particular part of the common estate, and one afterwards dis- turbs the others in their possession, trespass will lie against him ; and in support of this he cited 4 Kent's Commentaries, S70. At all events, the argument could only apply to the de- fendant. BoTSFORD, J. — The general principle, it is true, is, that one tenant in common cannot bring trespass against his coteBant, but there are cases where that principle will not apply. If one tenant in common occupy a part of the land for twenty years and upwards to the exclusion of the others, and receive all the rents, that would be considered an ouster of his co-tenants. In this case it appears that Norman Millikin sold a particular por- tion of this lot to one of the Defendants five and thirty years ago, and that he has occupied that part ever since, without any claim or interruption by the heirs. I think therefore the Jury would be justified in presuming an ouster of the heirs as to that part. For these reasons I shall let the cause go to the Jury. The Solicitor General and A. L. Street^ for the Plaintiff. A. Stewart and J. W. Chandlery for the Defendants. lit, on the le Delend- 2spass wa$ H li! I WM WESTMORLAND CIRCUIT. September, 1835. Before CARTER, J. I! WILLIAM SMYTH versus GEORGE ROGERS. In this cause, Chandler fcr Defendant, moved to put off the trial on aflidaTit, shewing that Joseph Rogers, a material wit- ness for Defendant, had left the Province for England in July last, before notice of trial given, and had not since returned. On behalf of the Plaintiff, affidavits were produced, by which it appeared that the Plaintiff was under a peremptory underta- king to try the cause at the present Circuit ; that the witness, (who was Defendant's brother,) had returned to this Province, from a voyage to England, in the early part of the past summer, and his intention to proceed to England on another voyage, was notorious and well known to the Defendant long before the wit- ness left the Province. Upon which it was contended that as the Defendont had put the Plaintiff in a situation which obliged him to be ready, the Defendant ought also to have been prepa- red for trial ; that being aware of the witness's intention of leav- ing the Province, the Defendant could, and under the circum- stances ought to have had his testimony taken before a Judge, as authorised by an Act of the Province, (5 Wm. 4, cap. 34,) and availed himself of it at the trial ; not having done so, he was in default ; that the application was to the discretion of the Court, and as the Defendant had neglected to procure the evi- dence, when in his power, he was not now in a situation to ask the Court to exercise its discretion in his favor. In reply, Chandler mentioned the case of Fergus vs. M'Intosh, in which, ^ %L m IN THE SIXTH YEAR OF WILLIAM IV. 87 under similar circumstances, the present Chief Justice, had last year postponed the trial. He also cited 2 Arch. Prac. 287. Carter, J. said he at first had doubts whether the Defendant ought not to have had the testimony of the witness taken before a Judge, as authorized by the Provincial Statute, but on further consideration, he thought that in this case the Defendant was not bound to do so. The case therefore came within the gene" ral rule mentioned in Archbold, and Defendant was entitled to have the trial put off on the usual terms. J. Stewart for Plaintiff. E. B. Chandler for Defendant. M. HASHI vs. PETER LYONS and CHAS. LYONS. This was an action of Trespass for entering upon Plaintiff's land in Shediac, called Lot No. 3, and cutting and taking away saw logs and ton timber therefrom. The close was only descri- bed in the first count, and the declaration contained a count de bonis asportatis. The Defendants severed in their pleas. Peter Lyons plead- ed the General Issue to the whole declaration, and several spe- cial pleas upon which issues were taken. Charles Lyons, Not Guilty, upon which issue was joined. Liberum tenementum to the 1st and 2d Counts, on which issue was taken ; and to the 2d, 3d, and 4th Counts, " that our Sovereign Lord the King was seized and possessed of the several closes and lands in those counts mentioned in his demesne as of fee in right of his Crown ; that license and permission was duly given to the De- fendant to enter upon the same, and from the trees and wood thereon growing and being to cut down and take away for his own use a certain quantity of Saw Logs and Ton Timber;" and Defendant justified the entering, cutting, and taking away the Saw Logs, &c. under such license : averring the same to be the trespasses complained of by the Plaintiff in those counts. The Plaintiff replied that the closes mentioned in 2d, 3d, and 4th Counts, were not seized and possessed by our Sovereign Lord the King, in his demesne as of fee in right of his Crown ; upon wrhich issue was joined. On the part of the Plaintiff, a Grant from the Crown of seve- ral Lots of Land, numbered from 2 to 14, to several French In- habitants of Shediac was given in evidence ; among which the Plaintiff was the Grantee of Lot No. 3. It appeared that th« front and base lines of the whole tier of lots had been run out, but not the side luics until after the present action was brought. 88 WESTMORLAND CIRCUIT — TRIM. VAC. ,!;•! lii In the winter of 183S-4, Charles Ljons, who worked the one half of a Saw Mill at Shediac obtained a license to cut a quanti- ty of Saw Logs upon Crown Lands in Shediac, and it appear- ed as well by the Plaintiff's Grant as the Witnesses, that part of the Crown lands adjoined the rear line of the French lots. It was proved by the owner of Lot No. 2, that on one occasion, he, in company with another of Plaintiff's witnesses, met Defen- dant's team loaded with lo^s driven by M. O'Brien, [his team- ster] and another person with him upon Lot No. 2, near to No. 3, and the witness forbid them taking away the Logs ; they how- ever carried the logs away to Defendant's mill pond; the witnesses followed the team track on to No. 3, where they observed the marks of recent cutting, but it also appeared that the road they met the team on, passed over the Lots Nos. 2 and 3, and on to Lot No. 4, on all of which trees had been cut down, and it did not appear from which Lot the logs upon the team had been cut or taken. It also appeared that one Taylor had his hired men about the same period, cutting on and hauling from some of these lots. The Plaintiff then gave evidence of the number of stumps remaining on Lot No. 3, in November following, afler this suit was commenced ; some of which the witness had obser- ved in the preceding May, when running out the Plaintiff's side lines. The principal witness in the cause was W. Lay- ton, a Deputy Commissioner of Crown Lands, from whose tes- timony it appeared, that in the Spring of 18S4, he was at the mill worked by Taylor and Charles Lyons, to ascertain the quantity cut by the latter on Crown Lands, and whether he had exceeded his license : and on that occasion a quantity of logs and deals were pointed out to him as being cut on private pro- perty. Charles Lyons called his teamster, O'Brien, and one Porrier, to satisfy witness that the logs were not cut upon Crown Lands, and upon the examination which then took place, the witness understood from O'Brien and Porrier, that the logs he was enquiring about had been cut on the French lots, Nos. 3 and 4. Some of the owners of the French lots were present at the time, (the Plaintiff was not one of them,) and there was much angry dispute between them and Charles Lyons re- specting the logs. At the instance of the witness, who urged a settlement, Lyons offered to pay them for all that his men might have cut on their lands, the same price as he paid to the Crown, which they refused to receive. The evidence by which Plain- tiff attempted to connect Peter Lyons, was that he was the own- er of the one half the Saw Mill ; that he had been frequently seen carrying loads of hay and provisions towards the mill, that Charles Lyons was his son, and he had said he intended to give him the property, and that after this suit was brought, he had iB IN THE SIXTH TEAR OF WILLIAM IV. 89 endeavoured to effect n settlement with Plaintiff. It was proved that his place of residence was at Sussex Vale, more than sixty miles from Shediac, and he had never been seen working at, or interfering with the management of the mill, nor selling the lumber, nor receiving any oenefit from the produce thereof. Upon the close of the Plaintiff's case, A, Stewart moved that . Peter Lyons, against whom there appeared no evidence, should be acquitted, which after argument was directed by the learned Judge. For the Defendant, Charles Lyons, it was proved, that under his license to cut upon Crown Lands, he sent his men into the woods, strictly charging them to be careful in cutting ; to keep upon the King's lands, and not to trespass upon private proper- ty, particularly not to go upon the French lots, which adjoined to the Crown Lands. It also appeared that the Defendant did not go into the woods himself, and was not aware but that his men had been cutting on the King's land, until afterwards in- formed by the Plaintiff and other owners of the French lands ; that he then offered to pay the Crown rate for all the logs his men might ignorantly have taken from their property. That Taylor's men and teams were in the woods about the same place, near a month before his men went there, cutting and hauling ton timber and logs ; that it was impossible to tell upon whose lands his men had been cutting, or how much ; and Defendant had always before supposed they had been cutting on Crown Lands under his license. Upon this evidence, Stewart moved for a nonsuit ; the testi- mony on the part of the Defendant explaining and being consis- tent with the evidence given on the part of tne Plaintiff, shew- ed that the Defendant was not a trespasser, and not liable in this form of action. He was not present at the time any tres- pass was committed on the Plaintiff's property, if any ever were committed by his servants ; he did not command, but on the contrary expressly directed them not to trespass on the French lots ; and there is no evidence of subsequent assent on his part. The offer to pay the Crown rate to all the owners of French lots then present for whatever his servants mig/it have cut on their lots was not proof of an assent to the previous unauthorised trespass. The French people were claiming damages from him ; there was angry recrimination between them ; the Defen- dant did not admit there had been any trespasses, but at the in- stance of the witness, and for the sake of peace, he offered to pay the Crown price for any logs his servants mtg/it have cut on private property. The only testimony which in any way shewed a trespass by Defendant's servants, was that of Lay ton, and although the Defendant would be bound by what O'liricn, his IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I Sr lia IIIIIM 1.25 1.4 l'-6^ « 6" — ► p /i ^» 7: '^ > ^ '^ 7 4' Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 C/j 90 WESTMORLAND CIRCUIT — ^TRIN. VAC. M i^'ia servant, said, when produced by him, as a witness; yet Lavton did not state what O'Brien said — he gave the result of his investigation upon examination of O'Brien and Porrier, the lat- ter belns; produced by Taylor; but, at all events, it only shewed that at that time the Defendant wm aware that logs had been cut against his authority upon the lots, Nos. 3 and 4. Beinc avare of the trespass was no proof of aa assent on his part, and his offer 0n the same day and at the same time to pay the Crown price, would not put him in a worse situation. Carter, J. noted the objection, but refused to nonsuit, as in his opinion there was some evidence of a subsequent assent ; the trespass being for Defendants benefit In summing up to the Jury, he said there were three questions for their conside- ration. 1st. Whether O'Brien, the Defendant's servant, cut any timber on the Plaintiff's lot. No. 3. — 2d. Whether in cut- ting the logs, he was acting as Defendant's servant and by his express direction.-~3d. Whether O'Brien cut the timber with- out the direction of the Defendant, and that afterwards the De- fendant knowing of the trespass, availed himself of it. After recapitulating the testimony he stated- It Charles Lyrnis, knowing the logs to have been cut on Plains tiff'f land, afterwards used them, and availed himself of the benefit of the trespass, he will be liable, but if otherwise, he will not ; therefore, if on the whole case you think there was no trespa^i committed by O'Brien on Lot, No. 3, your verdict will be K>r the Defendant ; if otherwise you find there was a tres- pass, and that it was committed by direction of the Defendant, or that it was without his direction, but that he afterwards know- faie of the trespass availed himself of the benefit, the Plaintiff wul be entitlea to your verdict. Vefdict for Plaintiff— damages, £7 : 10s. After the verdict. Chandler applied for a Certificate under 8 and 9 William III, c. 11, that there was reasonable cause for making Peter Lyons a Defendant, in order to deprive him of his costs ; and he cited Hullock, liO, 9 Arch, 284, and 3 Camp. 65, to show that diis was a case in which such certificate ought to be granted. Stewart opposed the application, contending that the reason which induced the Court to direct an acquittal, there being no evidence was sufi&cient to shew there was no rea- sonable cause to make him a Defendant ; that the case in Camp- bell was an authority against the Certificate being gsanted ; there Lord EUenborough held that Solomons was in point of lav a trespasser — here the learned Judge had directed an acouittal of Peter Lyons, because there was no evidence to make fiiio a trespasser. IN THE SIXTH TEAR OF WILLIAM IV. 91 CarteRi J. after referring to the statute and Hullock 140, granted the Certificate. E, B, Chandler and J. W, Weldon for Plaintiff. Alexander Stewart and J. Steaart for Defendant A motion was afterwards made in Michaelmas Term, by Ber- ton for Defendant, for a Rule Nisi, to set aside the verdict upon the same grounds taken at the trial on motion for nonsuit. The Court refused the Rule. PECK v$. ROGERS ako others. This was an action of Trespass, qu. cl. fre. to which the Ge- neral Issue was pleaded. The Plaintiff proved that Defendants in December last, after being forbidden, came upon his land, claiming aright of way ia the winter season, from certain mills belongmg to two of the Defendants, over the Plaintiff's marsh to the high way, and against the Plaintiff's will, passed and repassed wim empty and loaded teams. It was also proved that some trees wmcn the Plaintiff had placed in the road to obstruct the Defendant's passage, had been cut out, the Plaintiff's fence thrown down, and some of the poles broken by the Defendants ; but the da- mage proved was trifling ; the land having been at the time of the trespass hard frozen, and covered with icer and snow. The Defendants, in * litigation of damages, gave evidence, to shew that it was custoinary in the winter season, in this Pro- vince, to put down fences, and pass over any person's land wherever convenient for passage ; that a wint^ road over the Plaintiff's marsh had been used for many years, and the sum- mer road from the mills being impassable in the winter, the way over the Plaintiff's land became one of necessity ; — ^tbat De- fendant's had offered to pay whatever damage had been done, and it was contended that no actual damage had been sustained. Verdict for the Plaintiff-— damages, j63. E. B. Chandler and J. Stewart for PlaintiiE A. Stewart and Dickeif for Defendants. SAYRE w. JAS. KELLY, EDGET, & JOHN KELLY. This was an action of Trover for a quantity of Boards levied on by the Plaintiff under an Execution against James M. Kel- ly, at the suit of Levi Lockhart. ■''Sim l"9l MM^ IbIK'^ iiHn'i' 11 m 'J He' ^ <)eM mi m 4 w ■"' % i:l 92 WESTMORLAND CIRCUIT — TRIN. VAC. The Declaration contained but one count, which alleged that Plaintiff, as Sheriff of Wesimorlandf on the 1st September, 1832, was lavrfaWy possessed of the goods in question ; that De- fendants knowing the same to be the property of the Plaintiff, as such Sheriff as aforesaid^ converted the same, and it con- cluded to the damage of the Plaintiff as such Sheriff as afore- said. The Defendants had shipped the boards for which the action was brought, and carried them from Petticodiac to Saint John. In support of the Plaintiff's case, an exemplification of the Judgment, Lockhart vs. Kelly, was civen in evidence, and an ex- emplification of the Writ of Fi Fa, issued on the Judgment was also offered. On examining the latter, it appeared that besides the execution, the indorsements made thereon by the Plaintiff of its receipt by him, and his return thereto, (viz. " received 22d May, 1832," « levied on boards, 80lh May, 1882,") were copied in the exemplification. A. Stewart for Defendants, ol^ected to the reading of the in- dorsements, alleging that if the Writ itself were produced, the Plaintiff's endorsements could not be read as evidence for him, although as against him, and between other parties^ they would be evidence ; and he contended that the Seal of the Court be- ing affixed to such copy, could not make that evidence, which would not have been evidence, if the original had been produ- ced. He urged that the Court had no power to exemplify affi- davits, vouchers, pleadings, or any documents on the files of the Court, not being records thereof; the power of exemplifying being confined to its own records, one of which the Writ was when affiled ; but the Plaintiff's endorsement formed no part of such record. As proof of the Writ, the exemplification was admissible, but he submitted the Plaintiff's endorsements could not be read as evidence of the facts stated. He cited Stark £v. 13S5, 1357. J. W. Weldon, in reply, offered the exemplification as evi- dence of all it contained, as well of the writ as of the Plaintiff's endorsements. That the Sheriff was a public officer, and his official acts were entitled to credit ; he was required by a statute of the Province to endorse on every Writ the time of its receipt by him, and in a late case, {Johnston vs. JVinslow, ante 37,) it iras decided that such endorsement formed part of the record, the exemplification of which was conclusive evidence of the fact sta- ted in such indorsement, and could not be impeachecT That the endorsement of the return being a necessary official act of the Sheriff iw the performance of a public duty, was of equal vali- dity, and became part of the same record when the Writ was affiled which the Court had authority to exemplify. He therc- i I- ■:': IN THE SIXTH YEAR OF WILLIAM IV. ^ fore submitted that the exemplification was admissible to prove evety thing contained in it. Cartkr, J. admitted the evidence, reserving the point. It appeared also that the Plaintiff about the latter end of May, or early in June, went to the house of John Jones, near which the boards in question were piled, and requested Jones to take carge of them for him, stating he had been making a levy on them ; Jones refused, telling the Plaintiff he already had them in his charge for Mr. M'Cardy, a Deputy Commis- sioner of Crown Lands, who had previously seized the same, as being made from Logs cut on Crown I'ands without license. ' The witness stated he was with M'Cardy at the time of the sei- zure, and that he marked the boards with the broad arrow, and placed them under his charge. — It also appeared that in July following, the Plaintiff went to the place where the boards were piled, and offered to sell them to Aaron Jones. The Deputy Sheriff stated fie iiad the Writ of Execution, (Lockbart vs. Kel- ly,) in his possession, when he passed the boards tlie latter end of May or first of June, but he did not then levy, because he had not time to secure the property. The boards were piled near the highway, and were claimed by John Kelly as his pro- perty ; it was admitted he was under age at the time, being no more than nineteen : all the Defendants were aiding ana as- sisting in the shipment of the lumber in the latter part of July, 1832. The witnesses stated they knew the Plaintiff as the Sheriff of the County. On close of Plaintiff's case, a nonsuit was moved for on the following grounds : 1st. That the special character of the Plaintiff alleged in the Declaration was not sufficiently proved. Roscoe, SlS; 4 B. and C. see ; 8 T. R. 303. 2d. That the property in the lumber at the time of Plain- tiff'g levy was vested in the Crown; or whatever property James M. i^elly might have had was divested by the seizure of the Deputy Commissioner of Crown Lands. Selwyn, 1294 ; 1 Camp. 435 ; Stark Ev. 1493 ; 3 Stark, ISO. 3d. No possession in the Plaintiff at the time of the taking by the Defendants ; — actual possession or custody of personal pro- perty, seized under execution, being necessary on part of^ the Sheriff, who has only a special property for the purpose of sale. 3 Stark Ev. 1488 ; Selwyn, 1332-34 ; and Impey, 109, 287, and 289, were cited. A. Stewart submitted, that as the Plaintiff had chosen to al- lege in the declaration, his special character of Sheriff, and to found his title to the property in virtue of such • character ; it was incumbent on him to prove it according to his allegation ; the witnesses stating that the Plaintiff was called the Sheriff, I" j; ij 94 WESTMORLAND CIRCUIT— TRIM. VAC. and that he had acted as such was not sufficient. His patent of appointment, the best evidence the nature of the case required, was within the Plaintiff's power, and ousht to have been produced; — the General Issue put every alTeffation in issue, and the Plaintiff must recover secundum aUeffata et probata. The second objection, he contended, was fatal to the action. Whatever property James M. Kelly might have bad in the lumber, ceased before Plaintiff's levy ; there was no property in Kelly for the Writ to operate upon ; it was vested in the Crown, or at all events divested out of Kelly. As to the last objection, he submitted that actual possession was essential to enable the Plaintiff to maintain the action. The Sheriff could not have a constructive possession c^ personal chattels in Execution ; he had only a Special property in a debtor's goods npon seizure for purpose of sale, until which it was necessary the ffoods should remain in his custody. In England it was the ordinary course when a seizure was made, to put an officer in charge until the goods were sold, and leaving tho-possecsion was an abandonment of the goods. Weldon, in reply, (being desired by Carter, J. to confine him<« self to the second point,) urged, that although at the time of the levy, the boards were under seizure of the King's Officer; from the circumstance of the subsequent shipment by the Kellys, it might &irly be inferred, that the property had been released from the seizure made by the Deputy Commissions of Crown Lands, upon which the previous levy made by the Plaintiff would attach, and give him a special property imder the Exe* eution sufficient to maintain the action ; and he submitted that it was a question for the Junr to determine under the circum- stances given in evidence. He cited Impey, 289 ; Dalt 19. Carter, J. was of cminion there was no property in James M. Kelly at the time or PlaintifTs levy upon the boards : — they were then under seizure, and in custody of the officer of the Crown, and Kelly's right, whatever it might have been, divest- ed out of him ; on the first pomt he said he certainly should not have nonsuited, but the second could not be got over. Nonsuit. J. W. Weldon and Sayre, for the Plaintiff. Alexander Stfiuart and J, Stewart for Defendant DODGE t;e agreement set forth as forming part oif Defendant's plea of non est factum, the same not bein^ set out in the Plea deli- vered, urging that until the decision m the last case, he was of opinion that it was correct so to enter the deed when a Defen- dant craved Oyer, and as in this case it had been entered under a misconception, it might be considered a mistake or mispri- sion of the Clerk, and amendable without referenc© to the Pro- vincial statute. He cited 2 Arch Prac. 2T4, Tit. amendment. 100 GLOUCESTER CIRCUIT — TRIK. VAC. But Carter, J. refused to interfere, or allow the nmendinent unleis the Defendant chose to consent ; he referred from me- mory to a late case, where Lord Tenterden had refused to al- low amendments of this nature. The case vus afterwards pro- duced, 2 M. and M. 196, which confirmed the impression the Judge had of it, and he observed, Lord Tenterden's opinion was great authority in such cases. The Record was withdrawn. Alexander Siewart and J. Stewart for Plaintiff. E. B. Chandler for Defendant. GLOUCESTER CIRCUIT. September, 1835. Befobe PARKER J. U^ik LEE versus SMITH. Assumpsit — Summary. The Plaintiff declared on a conditional acceptance, but did not aver a performance of the condition, and in his particulars vtated *' Defendant's acceptance of Daly's order in favor of Plaintiff." End objected that the acceptance offered in evidence did not correspond with that charged in pnrticulars. Parker, J. — The instrument is set out in the Declaration as a conditional acceptance, and therefore I think the particulars are sufficient, they could not mislead. The Defendant's name was William Smith ; — Napier, a wit- ness, to prove the acceptance, stated that he knew two persons so named, one a Tavern Keeper, the other the Defendant, a Lumberer ; he had seen each of them write ; had dealings with both of them, and believed the acceptance exhibited to be the IN THE SIXTH YEAR OF WILLIAM IV. 101 handwriting of one of them, but could not deterniii},e which of them. Another witness proved that the exhibit was not the hand- writing of Smith, the Tavern Keeper. Carman submitted, that this was sufficient evidence to go to the Jury. End objected. That the testimony did not come within any of the Rules of Evidence, and was not sufiicient to authenticate the exhibit. Parker, J. — It appears to me if there are two persons of the name of William Smith, the Defendant and another, and a witness swears the exhibit is the handwriting of one or the other of them, and it is otherwise proved not to be the handwriting of such other person, there is evidence to go to the Jurv The point is new to me, I have no recollection of any case ia which such evidence has been tendered. I will receive it, and reserve the point, giving the Defendant leave to move for a non-suit, if the signature is not established by bett.' proof. William Smith, the Tavern Keeper, was afterwards called, and swore timt the acceptance was not his writing. Evidence of the performance of the condition was offered. End objected, that the Plaintiff could not prove a fact, he had not averred. Parker, J. — I have no hesitation in saying, according to the ordinary rules of pleading, that the Declaration would be defective, but as this is a case under the Summary Law, in which the Declaration is inserted in the Writ, and the Plaintiff will not be entitled to recover on the contract set out without the proof now offered, I shall not reject it, although the aver- ment has been omitted. The objection is on the Uecord, and the Defendant might have demurred. Verdict for Plaintiff— damages, £\0 : 1 : 6. W. Carman for Plaintiff. End for Defendant. The case was not again moved. REX versus M'GEE. Indictment for Rape. J. A. Street, Counsel for the prisoner, questioned the prose- cutrix as to her having previously had connection with the pri- soner and other persons by her own consent. K : sH i 10^ NORTHUMBERLAND CIRCUIT — TRIN. VAC. Peters, j^l. Cor. objected that it was not proper to question the witiiess a*^ to particular facts, and cited Rex vs. Hodgson, Russell & Ryan, C. C. 211. Parker, J. — That decision is shaken by a late case in 6 Car. and Payne, 562, Rex vs. Martin, and it appears now that evidence of particular facts may be admitted. There is one objection here which however would not occtir in England ; there the offence of fornication is not indictable, but being so in this province, the answer to the question in the affirmative, might tend to criminate the witness. I think in a case of this description, the questions should be put, but the witness will understand she is not bound to answer them. (;;i;!l ml' I w fU M ^' • ^fi: ^ i ,J4; il ir.i :) Hi j . . ., 1" ■ k ;: 1% ■ ■|'''': '^W .■■■ tijT l^v 1-. vi NORTHUMBERLAND CIRCUIT. Septsmber, 1835. BcFORE PARK£R J. GREEN versus TIERNEY. Trespass for Assault and Battery. On the part of the Plaintiff the Assault and Battery was proved ; but the cause of commencement of the affray was not shewn. Evidence was also given of damage sustained by rea- son of the Plaintiff's consequent inability to pursue his oc- cupation. On the part of the Defendant, evidence was offered in miti- gation of damages, of gross abuse by the Plaintiff of the De- fendant's wife at the time of the assault and immediately previous thereto, on the same day and at the same place, which was the provocation that induced the assault. J. A. Street objected, that it was evidence of a conversation, not b«tvfreen the parties, or in the presence of the Defendant. IN THE SIXTH YEAR OF WILLIAM IV. 103 Parker, J. — It is part of the res-gestae, and may be given in evidence in mitigation of damages and more ei^cRally as the Plaintiff has not shown the commencement of the affrtty or as- sault. The Defendant offered evidence as to the habits of the Plain- tiff as a man of industry or otherwise, previous to the assault. J. A. Street objected, that the testimony was irrelevant, ap- plying to general character, and not to the circumstances of the present case. Parker, J. — You have exprefsly gone for damages conse- quent upon the inability of the Plaintiff to carry on his busi- ness, and it is material the Jury should know what loss he has sustained by not being able to carry on his business ; the evi- dence is therefore relevant and proper. The verdict was for the Plaintiff, with six ■pence damages, and the Judge refused to certify under the Statute 22 & 23 Car. 2. c. 9, considering that although there was proof of battery, the granting or withholding of the Certificate was discretionary,* and the case did not call for a Certificate. J. A. Street and Kerr for Plaintiff. W. Carman for Defendant. * It was so decided by the Supreme Court in Hilary^ 1834. WILSON versus WILLOUGHBY. Wilmot moved on the part of the Defendant to put off the trial of this cause on the ground of the absence of a witness ; the application was resisted by End for Plaintiff. Parker, J. — There is a great difference between the requi- sites of Affidavits to put off trials, when the applicant has been guilty of laches or delay, and when helms not. I always look at such applications with care and anxiety; they ought not to be favored, but it is material to the ends of justice that a party should not be hurried to trial in the absence of a material witness,, if the party is not in fault in not having him present, and there is reasonable ground to expect his at- tendance or testimony at the next Circuit. I think the Affida- vit in the present case is sufficient, and the cause must be put off on the usual terms. I will suggest to the Bar, that as Commissions to examine witnesses abroad can be obtained on application to a Judge at Chambers, whenever a cause is at issue in which it is neces- sary, even if the Commission cannot be returned in time for the ■ Ijl 104 NORTHUMRLAND CIRCUIT TRIN. VAC, Circuit, that an immediate application should be made for the Commission, which will save the trouble of carrying down the Record, and the expence of the attendance of witnesses. The Quebec and Halifax Steam Navigation Company, versus CUNARD AND ALT EN. This was an action for money had and received, in which the Defendants obtained a verdict in September, 1834. That ver- dict was set aside in last Trinity Term, {vide ante page 33,) and the cause came down a second time for trial. The Plaintiffs claimed ^1)3 : 15s. which the Defendants retained in their hands. The case on the part of the Plaintiffs was much the same as on the former trial, except that the original account stated be- tween the parties was produced by the Defendants on the re- quisition of the Plaintiffs. In that account, the Defendants charged, " Agency and compensation for trouble in attending to the business of the Association on 91 Shares — at £25 each, ^€2275, at 5 per cent — £\ 13 : 15s." This item was reserved for further consideration, and all the rest of the account was settled. It appeared by the account rendered at the time of the settlement, in which the disputed item was charged, that ^60 : 10s. part of the funds in the Defendants hands was re- ceived on account of the Shares, and was specified therein, as " the first instalment on eleven shares." On the part of the Defendants, evidence was tendered, to shew the trouble and service of the Defendants, relative to the business of the Plaintiffs respecting the 91 shares generally. J. A. Street and Berton lor the Plaintiffs, objected that the Defendants should, before shewing their services, prove their retainer by the Plaintiffs, it having already been shewn on the part of the Plaintiffs that they were employed by the owners of the 91 Shares, and not by the Plaintiffs, and even if they could shew an express retainer by the Plaintiffs under the pleadings as they stood, the evidence would be inadmissible ; the Defen- dants had pleaded only the General Issue, and had given no notice of set off, they had therefore rested their claim to the money in question solely on a right to retain. That claim ap- plied to agency on the whole 9 J shares, and having paid over the principal part of the amount, without any deduction for com- missioii, they had themselves defeated that right. IN THE SIXTH YEAH OF WILLIAM IV. 105 ;rein, as End and Wilmot contra — contended that the Defendants ivere entitled to retain their commission as charged, out of any money in their hands, whether received from the same source or otherwise ; and cited Roscoe's N. P. Ev. 250 ; — 4 Burr, 2221. Parker, J. — The only evidence as to the trouble or services of the Defendants that is admissible Is as to the first instalment on eleven shares, £fiO : 10s., the amount in their hands at the time the charge was made. The Defendants cannot apply th'> ^60 : lOs. to commission on the 91 shares; and their right to retain, if they have such a right, can apply only to a commission on that ^60 : 10s. I speak after very full consideration, ha- ving given much attention to the point. If the defendants had given notice of set off, they would have stood in a very different situation, and might be entitled to shew their retainer by the Plaintiffs and their services relative to the shares generally ; but on the case as it stands they can only have a right to retain a commission on so much as remained in their hands, and not on any parts which they had paid over without making a charge or setting up a claim for commission. The Defendants gave in evidence the letters of the Plaintiffs, and called witnesses for the purpose of establishing that the De- fendants were the Agents of the Plaintiffs in the business of the Shares. His Honor confined the Jury in the consideration of the De- fendants' right to retain strictly to a commission onthe.^60 : 10s.; and left it to them to consider if in respect of that amount they were the Agents of the Plaintiffs or not. The Jury returned a verdict for the Plaintiffs— damages, jS95 10s. 9d. J. A. Street, Kerr, and Berton for the Plaintiffs. E7id and Wilmot for the Defendants. REX versus ROGERS. jr com- A Bill of Indictment for Robbery was found by the Grand Jury in the Northumberland Court of General Sessions, and at the present Assizes handed up to the Clerk of the Court of Oyer and Terminer. Peters, CI. Cor. moved that the Defendant should be called on his Recognizance, and arraigned. Parker, J. — Robbery is a crime taken out of the jurisdic- tion of the Courts of General Sessions of the Peace by the Act of Assembly, 1 W. 4, c. 14, consequently a Bill of Indictment for the crime, found in that Court, must be void. m : 11 106 CARLETON CIRCUIT — TRIN. VAC. The Defendant appearing in Court, His Honor refused to commit him, or to act in any way upon the Bill, but the recog- nizance being in general terms, and not applying to the Indict- ment, His Honor directed the same to stand for further con- sideration. CARLETON CIRCUIT. i V:i\\ i h Septxmber, 1835. Befoke PARKER, J. DANIEL versus JOHNSTON. This was an action of Assumpsit. The three first counts were on a special undertaking of the Defendant's to pay for goods to be furnished by Plaintiff to R. Smith & Co. ; every material averment was laid at Fredericton in the County of York. There were also the usual common counts laid at Woodstock in the County of Carleton. Wilmot opened for the Plaintiff, and rested his case on the undertaking set out in the special counts. Bertonf for the Defendans, moved for a non-suit ; the sub- ject matter of the Special counts having arisen in York Coun- ty, was not triable by a Jury of Carleton ; and the learned Counsel having put himself wholly upon the undertaking, had virtually abandoned the common counts. The Solicitor General contra, admitted that the Plaintiff could not rest upon the special counts, but contended that the com- mon counts were not abandoned, and offered evidence under the account stated of an account rendered to Defendant of foods furnished on the undertaking to Smith & Co. ; but His lonor expressing an opinion that on the Counsel's opening, the IN THE SIXTH YEAR OF WILLIAM IV. 107 evidence offered was not admissible on the commou counts ; the Plaintiff submitted to be nonsuited. The Solicitor General and Wilmot for Plaintiff. Berton for Defendant. WINSLOW verm JOHNSTON anai others. The Solicitor General challenged the array on the following grounds appearing bjr Affidavit. ^ One William S. J. Dibblee was a party interested in the ac- tion. (The Plaintiff being the Sheriff of the County,) the dis- tringas was directed to the Coroner, and the Jury was sum- moned, and the Writ returned by John Bedell, who was a second cousin of said Dibblee. Tidds Pr. 9th ed. 851. Parker, J.— The Affidavits do not state that the Coroner is connected with any party on record, but with a person who is interested. If it appeared that Dibblee was so immediately in- terested as to stand in the same place as the Plaintiff, the case might perhaps have been different ; but the affidavits do not go to that extent, and I am by no means satisfied that the circum- stance of the Coroner being a second cousin to a person inter- ested in the event of the suit, is a sufficient ground of challenge to the array, Dibblee and Berton for Plaintiff. The Solicitor General and Wilmot iot Defendants. ADVERTISEMENT. The Annual Subscription for this Work will in future be One Guinea per annum, payable on the delivery of the Trinity Number. This amount and arrangement, it is hoped the Profession will not think unreasonable, when they consider the rapidly increasing number and importance of the cases and the expenditure of time and funds required in preparing and publishing them. The Numbers will be forwarded as heretofore, unless other- wise directed. Gentlemen are requested to pay their Subscriptions to any of the undermentioned persons, viz. G. F. S. Berton, . - - Samuel D. Berton, George D. Street, Street & Kerr, ... W. J. Berton, _ _ _ J. W. WlLDON, - _ - Christopher Milner, Junr. Fredericton. Saint John. Saint Andrews. Miramichi. Gloucester. Kent. Westmorland. ACT OF ASSEMBLY. 6 Wm. 4. Cap. XIV. An Act to provide for Reporting and Publishing the Decisions of the Supreme Court. Passed 8th March, 1836. ^ X^HEREAS it is an object of great importance to obtain ^ " • correct reports of the decisions of the Supreme Court ' in cases heard and determined in the said Court ;' I. Be it therefore enacted by the Lieutenant Governor, Le- gislative Council and Assembly, That His Excellency the Lieutenant Governor or Commander in Chief of this Province for the time being, by and with the advice of His Majesty's Executive Council, is hereby authorised to appoint some suita- ble person, learned in the law, to be a Reporter of the Opinions, Decisions, and Judgments, which may from time to time be given, made and pronounced, by the Supreme Court of Judi- cature in this Province, or the Judges thereof, in, upon or re- specting causes pending or that may hereafler be pending therein ; and that it shall be the duty of such Reporter, by his personal attendance, or by any other means in his power, to obtain true and authentic reports of such Opinions, Decisions and Judgments ; and such Reporter shall publish not less than two hundred copies of the same in pamphlets after each term of the said Court. IL And be it enacted. That the sole liberty of printing and reprinting, and publishing such reports, shall be and the same is hereby vested in and secured to the Author and Compiler thereof, his heirs and assigns ; and if any person shall print, reprint or publish any such reports, without the consent of the Author and Compiler or Proprietor thereof, he shall be liable to an action on the case, at the suit of such Proprietor, in which L 110 action such Propritttor shall recover double the damages he may have sustained by any such infringement of the copy right hereby secured to him. III. And be it enacted, That in addition to any profits that may arise from the publication and sale of such reports, such Reporter shall receive annually from the Province Treasury the sum of fifty pounds, to be paid by warrant of His Excellency the Lieutenant Governor or Commander in Chief for the time being, on the certificate of the Chief Justice of the said Court that such Reporter has diligently performed the duties by this Act required of him for the year for which such allowance may be claimed. IV. And be it enacted. That this Act shall be and continue in force for three years and no longer. in BY AUTHORITY. CIVIL APPOINTMENT. Georoe F. S. Berton, Esquire, to be Reporter of the De- cisions in the Supreme Court. Royal Gazette. HILARY TEPM. IN THE SIXTH YEAR OF THE REIHN OF WILLIAM IV. WIGGINS vs. WHITE, GARRISON, & WOODS. Persons who jointly manufacture Timber, which it ■*$ agreed shall be divided between them, are not Partners, but Tenants in Common, or Joint Owners, and each has only a right to dispose of his own share. QuERE. — If any and what acts of a Tenant in Common or Joint Owner of a Chattel, other than a destruction of the property, teill ena- ble his Co- Tenant to maintain Trespass or Trover ? This was an action of Trespass, for taking a quantity of tim- "ber, tried in last Trinity Term, before Chipman, C. J.; the verdict was for the Defendants. A rule nisi to set aside the verdict having been obtained, the rule was argued in Michael- mas Term, and in this Term the Court pronounced their opi- nions. The facts and circumstances of the case and the arguments of Counsel are fully detailed in the opinions of the Court, and are therefore omitted here. Cmipmaw, C. J. — The only question which, I think, should be decided under the present circumstances of this case, is that which arises upon the construction of the following agreement, made between the Defendant Woods and one George A. Lockwood, and produced in evidence on the part of the Plaintiff:— " This Agreement made and entered into this day,'betwcen George " A. Lookwood of the one part, and George Woods of the other part, " witnesseth ; the said fFoods is to make one thousand tons white " pine Timber on Little River at the Grand Falls— pay the Stumpage, IH HILARY TERM 'vl ufK "■■.5!''. . ii " (each to pay half , und the said fVooda to ndvanee,) nrul mako Hani " Timbor in Huch n placo iii not to have inoro than two miles to liaul " on Rn avoratfu — each to find c(iu»l hninN in cuttin,'' all main Roads " through tho Timhor and cUarin;^ tho Stream Hufliciont to drive said " Timber — and said Lockioood is to haul said quantity of one thousand " tons for one half on the brow. Each party to find equal hands and " supplies to drive, raA and take the samo tn market. Suid Woods " to take all dofoctivo Timbor when re-examined at Saint John, and " said Lockwood to take any Timbor that may remain in the woods of " the said quantity: — dhouUl ho fuil in hauling tho whole quantity — and " should ho be kept idle for want of Timber to haul, his time to be paid " for by tho said Woods. For tho true and faithful performance of " this agreement, each bind themselves unto the other in the penal sum " of five hundred pounds of lawful monoy of New-Brunswick. /«s!„„o,n " GKO. WOODS, (Signed) „ Qj^Q ^ LQCKWOOD. " Dated the 18tb day of Oct. ISSl. •' Witness present, (Signed) " Johh Grint. The parcel of Timber, which was in question in this cause, had been made by Woods and hauled by Lockwood, under this agreement. It was rafted and carried to market at Saint John, under circumstances which it is not at present necessary to ad- vert to ; and there it was taken by the Defendants Garrison and Woods from the Plaintiff, who was in possession thereof, having derived his title thereto from Lockwood. The De- fendant Garrison was proved to be the Deputy of the Defend- ant White, he being the Sheriff* of the City and County of Saint John, and Garrison was considered by the witness who spoke to this transaction, as acting in his capacity of Deputy Sheriff". This taking constituted the trespass complained of in this action. The view taken of the agreement, at the trial, on the part of the Plaintiff", was, that it constituted a partnership between Woods and Lockwood in the Tiaber made and hauled under it — that Lockwood had a right, as partner, to dispose of the partnership property — that the sale by him, from which the Plaintiff" derived his title, operated as a valid transfer of the whole property in the Timber in question, and that the De- fendants were trespassers in taking the same from the Plaintiff". On the part of the Defendants it was contended, at the trial, that Woods, as the maker of the Timber under the Licence from the Crown, which Licence they gave in evidence, had originally the sole property in him, which had never been changed; that Lockwood, by hauling the Timber, gained no property therein, but only a right to receive, as a remuneration for his labour in hauling the same, a. certain portion of the Timber, and that, until Woods had allotted to him a specific part of the Timber, as payment for his services in this respect, Iii. IN THE SIXTH YEAll OF WILLIAM IV. 113 WO j)roperty in any of the Timber vested in him : that no .cli iiUotmcnt Imving been mndc, the sale by Lockwood did not ni- ter the property in the Timber, which remained in Woods, and he, theretbre, had n right to tuke his own property out of the Plaintiff 's possession. On the argument for a new trial, a new view of the agree- ment was presented by the learned Counsel for the Defendant, and it was contended by him, that if Woods was not the sole proprietor of the Timber in question, and if Lockwood had any right of property therein by virtue of the agreement, such right of property in Lockwood was at most that of a Tenant in Commont and not that of a Partner — that as Tenont in Com- mon, Lockwood had only a right to dispose of his own undi- vided share, and, therefore, that the sale by him, under which the Plaintiff derived his title, operated only as a transfer of the property in one undivided vioiety of the Timber, the property in the other undivided moiety still remaining in Woods. — Woods being, in this view of the case, a Tenant in Common with the Plauitiff, it was contended that the latter could not maintain Trespass against Woods for the bare act of taking the Timber, the common property of both, from the Plaintiff's possession. Upon a review of the agreement, I am, in the first place, of opinion, that it cannot be maintained that Lockwood nad not, by his acts under it, gained any property in the Timber in question. The most material stipulation on this point, is the following : — " said Lockwood is to haul said quantity of one " thousand tons for the one half on the brow." It is further stipulated that " each party shall pay one half the stumpage" (the expression it would seem in common use among lumberers, for the purchase money of the timber paid to the proprietor of the land, in this case, the Crown.) And further, that each party is to find equal hands in cutting main roads and clearing the stream, and equal hands and supplies to drive, raft, and take the timber to market. The expression, "j^r the one half on the hronso" necessarily imports that the hauler is to have the property in one half on the brow. The price stipulated for this property being not merely the hauling, but his liability to pay one half of the stumpage, and to provide for an equal share of the other ex- pences and labour specified in the agreement. It is clear from the subsequent part of the agreement, tha<^ it was not intended that there should be a division of the tim- ber on the brow. Each party is to bear equally the expence of conveying the whole timber from the brow to market, and it is not until the timber reaches Saint John that a division is 114 HILARY TERM contemplated ; and upon the division, Woods is to take all de- fective timber, and Lockwood to take any timber that may re- main in the woods. An undivided moiety is therefore clearly the nature and extent of Lockwood's property and interest in the timber on the broiv under the agreement ; the property and interest in the other undivided moiety being in Woods. Each of the parties to this Agreement, thus having the property in one undivided moiety of Uie timber on the brow ; the next question is, whether under the stipulations of the Agreement, this common interest constituted a partnership between them. In the case of Cooper vs. Eyre, 1 H. Bl. 37, it is laid down by Lord Loughborough, C. J. that " in order to constitute a " partnership, a communion of profit and loss is essential. — " The shares must be joint, though it is not necessary that they " should be equal. If the parties be jointly concerned in the " purchase, they must also be jointly concerned in the future " sale, otherwise they are not Partners." Let us look, then, at the agreement in the present case for the purpose of ascer- taining whether it contains this essential condition of a commu- nity of profit and loss. The parties, it is true, are as we have seen, to be jointly interested, each in an undivided moiety, in the timber on the brow ; they are to be jointly concerned in carrying the timber from the brow to the market. But when the timber reaches the market at St. John, it is not to be sold or disposed of for their common profit or loss ; but on the con- trary, as we have seen, a division is to take place according to the particular stipulations of the contract, and each party would thereupon have the separate profit or loss upon his own indi- vidual lot ; and this circumstance it is, which is conclusive, to prevent the relation of partners arising between the parties to this Agreement, and to confine the nature of their common in- terest, to that of a mere tenancy in common, in the chattels which are the subject of it. Nor is this a mere technical dis- tinction without a substantial difference. It is a general Rule of the Law of Partnership, that each Partner has a power, singly to dispose of the whole partnership effects ; but a mere Tenant in Common, where the relation of partners does not exist, has a right ©u'y to dispose of his own sho'e. And I apprehend, that it would be entirely at variance with the mtent of this agreement, to consider it as giving to each party a right to dis- pose of the share and property of the other party, in the timber in which they had this undivided interest and possession. Upon the whole, I am clearly of opinion, that the parties to this agree- ment. Woods and Lockwood, were Tenants in Common, not Partners, in the timber, which is the subject of this suit, as it lay on the brow. '••>!» IN THE SIXTH YEAR OF WILLIAM IV. 115 in ion m- mttels al dis- l Rule singly .^enant St, has ehend, jf this to dis- timber Upon agree- n, not it lay And here I think we should stop Tov the present, and let the case go to a new trial, in order that the/acis may be investiga- ted, under this view of the rights of the parties which was not taken on either side at the former trial. Such further investi- gation is, I think, essential to the ends of justice, for the atten- tion neither of the parties nor of the Judge at that trial, having been directed to this view of the subject, the examination of the facts with reference to what now appear to be the true bearings of the case, was imperfect. This view of the case, moreover, might have elicited particular questions proper for the distinct consideration of the Jury ; as for instance, whether there was before the sale by Lockwood, under which the Plaintiff claims, a severance of the tenancy in common, and a vesting of the exclusive property ijfi the lot of timber in question, in him, — and if this were not the case, and the tenancy in common continued quite down to the taking of the timber by the Defendants, whether there were circumstances attendant upon this taking, which would give one Tenant in Common a right to maintain an action of trespass against his companion. As there is to be a further investigation of the case, I abstain from expressing any opinion whatever upon the eflfect of any evidence bearing upon these points at the former trial. For the reasons I have stated, I thjnk the rule for a new trial should be made absolute. BoTSFORD, J. — The question in this case must be governed by the agreement made between Woods and Lockwood, by the terms of which, Woods undertook to make one thousand tons of white pine timber, and Lockwood was to haul the same for one half on the brow : — the former was to be at the expense of making the timber, the latter to contribute his work and la- bour in hauling it, both were to be equally concerned in making roads and clearing the stream sufficiently for driving the timber ; the stumpage, (so called,) was to be paid by both; but in the first instance to be advanced by Woods ; the timber was to be rafled and taken to St. John at their joint expence, and when re-examined at that place, Woods was to lake all the defective timber, and Lockwood all the timber that might have remained in the woods. By this agreement it would appear that the timber was to have been divided between them at St. John, and not to have been sold on their joint account ; they were not to share with one another in the profit or loss, each party was to have a dis- tinct share or moiety of the timber, and they were not jointly interested in the future disposition or sale of it. — There was not that community of profit and loss which was held by Lord Loughborough in Cooper vs. Eyre, ( I H, Bl. 37.) as essential to II mm rl'ii lil'^^' .,>;'"' ;;3 B- i i^- 116 HILARY TERM constitute a partnership. I am therefore of opinion that Woods and Lockwood were not Partners in this transaction, but Ten- ants in Common and Joint Owners of the timber on the brow, each entitled to one undivided moiety or half part thereof. As it is clear that one Tenant in Common cannot lawfully dispose of the whole property held by him in common with another, but only of his own share or interest, it consequently follows that Lockwood could not sell more than his own undi- vided moiety or share of the raft in question to Dibblee, and that the Plaintiff who derived his right to the timber from Lockwood, through Dibblee, cannot be in a better situation, but must be considered as the purchaser of one undivided moiety of the raft, which Lockwood owned as Tenant in Common with Woods, whose right to the other undivided moiety had never been legally divested. It is equally clear that one Tenant in Common cannot main- tain trespass or trover against a Co-tenant. In Coke Lit. 199 and 328, it is laid down, that "if one Tenant in Common take all the chattel personal, the other hath no remedy by action, but may take them again." — In Brown vs. Hedges, (1 Salk, 290,) it was resolved, " one Joint Tenant, Tenant in Common or Parcener, cannot bring trover against another because the pos- session of one is the possession of both." In Barnadiston vs. Chapman, (4 E. 121,) it was said, that, " when one Tenant in Common doth not destroy the thing in common, but only takes it out of the possession of the others and carries it away, there no action lies by the other Tenant in Common." The case of Graves vs. Sawcer, in Sir J. Raym. Rep. 15, is to the same point. Although the authorities deny the right of on 3 Tenant in Com- mon to maintain trespass or trover against a Co-tenant, there are some circumstances which have been alluded to by His Honor the Chief Justice, which make it necessary that this case should be sent to another Jury for further consideration. Carter, J.— As this case stands before the Court, the Plain- tiff, Wiggins, must rest his case entirely on the interest of Lockwood, in the timber in question. In order, therefore, to decide the case, it is necessary to ascertain clearly, what that interest was, under the agreement put in evidence by the Plaintiff. In the course of the argument, three positions have been taken with respect to this point — 1st. That Lockwood never had any property whatever in the timber, but was merely to re- ceive a certain proportion in lieu of wages. 2d. That Woods and Lockwood, under the agreement, became Partners in the iN THE SIXTH YEAR OF WILLIAM IV. 117 /oods Ten- brow, if. A\ fully 1 with uently undi- 3, and [• from on, but • moiety an with I never t main- .it. 199 take all on, but k, 290,) mon or he pos- d, that, ling in others [Tenant lep. 15, n Com- [, there )y His lis case Plain- Irest of sary to sement te been never tore- '^oods in the transaction, and therefore a sale by Lockwobd of the whole or any pai*t was good against Woods ; and — 3d. That Lockwood and Woods were, under the terms of the agreement, Tenants in Common in the timber, and Lockwoodj by a separate sale could only transfer his own interest in the timber. With respect to the first position, viz. that the sole property in this timber was from first to last in Woods, it seems to me impossible to read the agreement, and for a moment think that such could have been the intention of the parties, or the legal effect of the words of the agreement, it seems to me quite cleai', from that agreement, that, at all events, on the braWf there was a joint property in Woods and Lockwood in the timber which had been hauled ; the stumpage money was ulti- mately to be paid jointly — the labour of cutting roads and clear- ing the stream was to be provided jointly, as also the labour of driving, rafting, and carrying to market; indeed, the whole ex- pence and labour of getting the timber and carrying to market was to be joint, with this exception, that the whole of the making of the timber was to be done by Woods, and the whole of the nauling by Lockwood. Smith vs. Watson, (2 B. and C. 401,) is an authority to shew that under the terms of this agreement, there was a joint inte- rest in the timber. In that case it was decided that an agree- ment that a Broker, instead of brokerage, should receive a pro- portion of the profits arising from the sale of goods purchased by him for a merchant, he at the same time bearing a propor- tion of the losses, did not vest in the Broker any share in the goods so purchased, or in the proceeds. In that case, Mr. Justice Holroyd says, " If Sampson, ^the merchant,) had in terms agreed that Gill, (the Broker,) should have that propor- tion of the property itself, it would no doubt have become the joint property of the two." Then comes the question, was the interest of the parties under this agreement a partnership or joint tenancy by which one can dispose of the whole property ; or, a tenancy in common, under which each can only dispose of his own undivided moiety. The case of Barton vs. Wil- liams, (5 B. and Aid. 395,) cited in the course of the argument, quite satisfies me that under this agreement Woods and Lock- wood were Tenants in Common of the timber on the brow ; the agreement contains no provision for that which is an essential ingredient in the formation of a partnership between two per- sons, inter se, viz. a participation in the profits and losses of tlje whole transaction, it contains no provision for a joint sale of the timber, or any division of the proceeds of such sale. For these reasons, it appears to me that, under the agreement, Woods and Lockwood were Tenants in Common of the timber M 118 HILARY TERM I m 'I on the brow ; and it therefore becomes unnecessary to consi- der any argument founded on the doctrine of Mr. Justice Best, in Barton vs. Williams, in which he denies the right of each Partner to dispose of the whole partnership property, in the case of a partnership in a particular instance, and confines it to partnerships in trading concerns generally. It follows from this that unless a division of the property took place before the sale to Dibblee, Lockwood by that sale could only transfer his own rights to Dibblee, and therefore Dibblee would become Tenant in Common with Woods, and the same would follow with respect to Dibblee's assignee the Plaintiff in this action. This view of the case however, being one which was not consi- dered at the trial, but which has been wholly suggested since, I quite agree that the case had better go back to a Jury in order that it may be fairly and properly decided. Paeker, J. — I quite agree from the evidence reported to us by His Honor the Chief Justice, that the Defendant, Woods, was Tenant in Common of the timber in question with Lock- wood, under whom the Plaintiff derives his right. — I think also as a general proposition, it cannot be disputed, that one Tenant in Common, Joint Tenant or Partner cannot maintain trover or trespass against another for the common property. — There is one exception, however, in the case of Tenants in Com- mon, equally clear as the rule L .J^ namely, where there has been a destruction of the property ; and it is a matter worthy of very serious consideration, whether any and what other acts — which so far as the interest of the patties is concerned, are equi- valent to a destruction — can come within the limits of this ex- ception. I had intended to have said more on this point, but as further remarks in the present state of the case would be con- sidered extra-judicial, I forbear ; I fully concur with His Honor the Chief Justice, and my brothers, that the case should go to a new trial, and for the reasons which have been stated by His Honor. Rule absolute to set aside verdict. The Solicitor General for jf 'aintiff. N. Parker for Defendant. IN THE SIXTH YEAR OF WILLIAM IV. CAMPBELL versits WILSON. 119 Jl verdict was taken fof the Plaintiff for £1000, " subject to the rneard of .Arbitrators, to be agreed upon.'* Plaintiff's expressed inten- tion was to secure a verdict ; The reference was, " of all matters in the cause.'' The .Arbitrators allowed the Defendant half the price of a vessel, sent by him and another to Plaintiff to sell, without any evidence of a sale by him. Held \st. Under the submission as explained by .Affidavits, an award for the Defendant was bad, the power of the Arbitrators was confined to the quantum of damages. Unless it appear distinctly on the Rule that Arbitrators may ehtmg* a verdict, they shall not be held to have any such power. 2d. The Defendant's right of action, if any, on account of the vessel, was for a breach of duty in the Plaintiff as his Agent, and for unli- ^idated damages; the claim was therefore inadmissible, either as pay- ment, or set off, and, having been allowed by the Arbitrators, vitiated the award. A Rule Nisi was obtained in this cause in last Michaelmas Term, by the Solicitor General for the Plaintiff to set aside an award made in favor of the Defendant, on the grounds stated in the Affidavits recited in the opinion of the Court. The cause was argued at this term. Chifman, C.J. — This is an application to set aside an award upon two grounds. 1st. That the Arbitrators made an award, and found a ba- lance in favour of the Defendant, when they were only autho- rised by the submission, to reduce the verdict entered at Nisi Frius for the Plaintiff. 2d. That the Arbitrators took into their consideration a mat- ter not referred to them. As to the first ground, Kinnear^ the Plaintiff's Attorney, states in his Affidavit, *' that during the sittings at Nisi Prius, a proposition was made by N. Parker, the Counsel for the Defendant, to arbitrate, which he, ^^Kinnear,) refused to accede to, but said he >vould agree to take a verdict for the amount claimed, subject to the award of three Arbitrators, chosen in the usual way ; and at the same time remarked that he supposed the Defendant would not consent, as he claimed to owe the Plaintiff nothing ; that Deponent's intention was to secure a verdict for the Plaintiff, and that the Arbitrators shotdd only have pcwer to settle the amount of damages, thinking the practice was so; that on the last day of the sittings, Mr. Parker mentioned that the Defendant agreed to the Plaintiff's proposal, and a memorandum was drawn up by Mr. Parker, whereby it was agreed, that a verdict should be i P 1 t -i' 1 h:"\ I v.V 120 HILARY" TERM im^(\ taken by consent, for jfilOOO, subject to the award of three Ar* bitrators to be mutually agreed on," &c. As the statement in this Affidavit is not contradicted, nor explained in the Affidavits on the other side, it must clearly be taken to have been the original understanding and agreement, that at all events there should be a verdict for the rlaintiff, and that the power of the Arbitrators should be confined to the quantum of damages. An agreement or consent rule ^as afterwards drawn up in a more extended form, (and signed by the Plaintiff's Attorney and the Defendant,) whereby after reciting the terms of the first agreement, and that a verdict had been thereupon entered for the Plaintiff^ the parties agreed to nominate James Keator, E. DeW. Ratchford, and Angus M'Kenzie, as the Arbitrators, and that their award, or the award of any two of them should be entered on the Postea, as the verdict of the Jury, and judg- ment thereupon with costs to be taxed, &c. Now, although this consent rule is more full and particular in its expressions than the original memorandum, yet no inten- tion appears on either side to vary the meaning and substance of this original memorandum. If this Rule had formed the original agreement between the parties, and were to be construed by its terms alone, without reference to any extrinsic matter, I think a strong argument might be raised upon the clause, " that the award should be entered on the Postea as the verdict of the Jury" that it was intended to subject the verdict itself to the award of the Arbi- trators ; but it is by no means clear that such would have been the effect of it. The practice of entering a verdict at Nisi Prius, previous to the submission to arbitration, has not by any means been so usual in this Province, as that of referring to arbitration generally, upon the condition that the award should be entered on the Postea as the verdict of a Jury, and there- fore the effect of such previous entry of a verdict has not been much considered by the profession. But in construing Rules of referenrc, where a verdict has been entered at Nisi Frius, I shoulci be disposed to hold most strictly in all future cases, that unless it appeared distinctly'on the face of 'a Rule, that the Arbitrators should have power to change the verdict so entered, and cause a verdict to be entered for the opposite '^'•ftrty, they should not be held to have any such power. Where .«-;,ch power may be intended to be given, it will be very easy o express it. Under the circumstances of this case, as stated in the Affida* vits, I think that upon the first ground, the Rule must be made absolute to set aside the award. m Wi IN THE SIXTH YEAR OF WILLIAM IV. Ul future I Rule, lerdict Iposite ^here easy Iffida* made The second point, that the Arbitrators considered a matter not referred to them, is equally clear to set aside the award. The action is Assumpsit ; the Plea was the General Issue, with which a notice ^^ set off was given, as stated at the bar, in ge- neral terms. The submission was of all matters in the cause, not of all mat- ters in difference between the parties, and it was not competent to the Arbitrators to enter upon and consider any matter which would not have been receivable in evidence on a trial. The subject matter which they improperly considered was the value of the brig Active, alleged to have been sent by "Wil- son the Defendant, and one Mackie, to the Plaintiff, to sell on their account. This evidence could have been made admissi- ble, only, by proving a sale of the vessel to have been made by the Plaintiff. It was agreed, indeed, that the property in the vessel was jointly in "Wilson and Mackie, and therefore was not a proper matter of set off by Wilson alone. But it is to be observed that the letter of instructions sent with the vessel, con- templates separate shares in the proceeds when sold. The es- sential defect is, that there is no evidence of the sale. The expression in the Affidavit of the Arbitrator is, that only one half of the value of the vessel was allowed to "Wilson ; the Affidavits do not state that the vessel was sold, or that any evi- dence of sale was given before the Arbitrators. I take it for granted then, that there was no evidence of any such sale, and if the vessel was not sold according to the instructions, the De- fendant's right of action, if he had any, would be, for a breach of duty in the Plaintiff as his Agent, and for unliquidated da- mages, which could not be considered, either as a payment or a set ofiT, and admissible in evidence in this cause. BoTSFORD, J. — I do not think under the circumstances of the present case, the Arbitrators were empowered to find for the Defendant. I am not clear, that apart from the undertaking which must be considered to have existed, the Arbitrators would have been justified by the strict terms of the Rule in so doing. I agree with His Honor the Chief Justice that on both points the Rule should be absolute. Carter, J. — I had doubts as to the terms of the consent Rule, and I think from the mere terms of it, I can see a line of argument which would entitle the Arbitrators to find for the Defendant ; but under all the circumstances, I am of opinion the award should be set aside, and in future, parties should state clearly and distinctly the powers they intend to vest in the Ar- bitrators. 125 HILARY TERM m ■M iS On the second point also, I think the award should be set aside. It is clear the Arbitrators have considered the value of the ship as estimated by the owners ; and it is equally clear that no evidence was produced before them of any sale, or the proceeds of any sale ; it is quite consistent with all the evidence that Wilson and Mackie are still the owners of the ship. Parker, J. — I agree also, that the award must be set aside, on both the grounds taken ; and as the cause is of some amount and importance, I will take the liberty of stating my opinion at some length. 1st. As to the form of the Rule. — With this much of the ar- gument of the Defendant's Counsel I agree ; that were we call- ed on to decide the case, on the mere literal construction of the Rule, my present impression is, that as the terms are general, and there is no restriction on that point, it would authorise a verdict to be entered for the Defendant ; and for damages in his favour, if under his set off he were legally intitled to a ba- lance. Again — if it had appeared that the Defendant's Coun- sel, when the proposition for a reference was made, on the basis of a verdict being entered for the Plaintiff, did not understand this condition, in the same manner as the Plaintiff's Attorney has sworn that he did ; or afterwards, when the rules were en- tered into, he had conceived it agreed qn both sides, that the Ar- bitrators were to have power to alter the verdict into one for the Defendant ; the Court ought not, I think, to go out of the strict construction of the Rule. Further — if it were a matter of clear established practice, that a Rule in the form of the present would authorise a verdict for Defendant, whatever might have been the understanding of the Plaintiff's Attorney on the subject, I think nothing but a case of misconduct on the other side in ob- taining it, would warrant the Court in disturbing it. But con- sidering this an unsettled point of practice, there being in fact other forms of rules in the books so expressed as to be clear of the present objection (see 5 East. 139, and 1 Taun. 151,) and finding that what is distinctly sworn to on the Plaintiff's side as to tne condition of the reference, has not been contradicted or varied by any counter affidavit ; the Court ought in my opi- nion, to take all the circumstances into consideration, and having done so, are bound in the present case to set the award aside, which is, in fact, only placing the parties in the same position as they were when the reference was assented to. In so doing, I would observe that there is no comparison between the extent of injury which the Defendant sustains, in having this award set aside if right, and that, which would be inflicted on the Plaintiff in upholding it, if wrong. IN THE SIXtH YEAR OP WILLIAM IV. 1S3 lid be id the iqually y sale, all the of the t aside, imount nion at the ar- jve call- a of the reneral, lorise a ages in to a ba- j Coun- he basis lerstand Lttorney irere en- the Ar- 3 for the le strict of clear it would e been [bject, I le in ob- ut con- in fact clear of 1,) and *s side adicted [my opi- having aside, ition as loing, I extent ard set 'laiutiff I am well aware that o form of Rule might have been adopt- ed, which would have secured to the Plaintiff a judgment in nis favour, without any question ; and for that reason, I think he was bound to make out a clear and strong case, to induce the Court to go out of the terms of the rule. 2d. As to the award itself — I heartily concur in the expedi- ency and propriety of giving effect to awards, whenever we can do so with justice ; but, I conceive, in order to induce parties to resort to this domestic tribunal, which (in many cases, and par- ticularly those between merchants,) is enabled to settle differ- ences more satisfactorily than Courts and Juries can do; it ii necessary, carefully to examine their proceedings when proper- ly brought before the Court, and not less important to set them aside when manifestly wrong, than to support them when right. Nay, I think it essential, that such a controul should be exer- cised, particularly as to references at Nisi Prius, where the award is to take the place of a verdict, in order that parties who have legal rights, may feel confidence and security in re- sorting to this mode of settling them. And no case calls more for the consideration of the Court, than one in which it is to be determined from the evidence before the Arbitrators, whether a matter in difference, on which they have acted and decided, was or was not included in the submission of a particular cause. The material objection to the present award on the merits, is, that the Arbitrators have allowed the Defendant the value of one half the brig Active, (a certain deduction from vessel and cargo excepted ; ) that they have done this is admitted ; and also that it was objected to by the Plaintiff ; their power to do it therefore rests solely on the point of the notice of set off in the ordinary form, properly including this as an item of charge, re- coverable in an action of common assumpsit. Was this so re- coverable? It certainly was, if the vessel were sold by the Plain- tiff; it certainly was not, if no such sale took place. It is not said there was any direct evidence of a sale, but it is insisted, that the facts afforded a sufficient presumption thereof, and that in the absence of any account, the Arbitrators had a right to charge the Plaintiff with the value. In order then to determine, whether the matter was submitted or not, we must examine the facts as brought before us ; and giving full credit to all that has been stated on the Defendant's side in support of the award, I think sufficient has not been shewn to justify the presumption on which alone the question depends. It is important to observe that the nature of the property was such as to require certain forms, and rules in the transfer, which would make the proof of sale of a ship easier than that of other personal property ; and that it has not been shewn, that the Plaintiff was vested with autho- 1S4 HILARY TERM rity to make a legal transfer in regular form under the Registry Acts. In the absence of any evidence, to shew that the vessel was in fact sold at all, regularly or irregularly, of any legal power to transfer in the Plaintin, of her ever having passed out of the possession of John Mackie, the Master, and other part owner, of her not being in existence at the present day, and the Defendant still vested with the legal right of owner, which would ( ^ntinue even if this award were to stand ; I think the Arbi: orswere not justified in presuming a sale, in order to chargt he Plaintiff with the value under the set off. Something was said in the argument of its being a payment ; but a payment is a satisfaction of an adverse demand ; and, if the Defendant were entitled to any credit as an overpayment, the difference, if allowable at all, could only come in as a set off, but independently of this, there was nothing to shew that the ressel was to be a payment in speciey although the proceeds of sale might be so. It has been further urged upon us, by the Defendant's Coun- sel, that Arbitrators are not bound by the same strict rules as govern Courts and Juries, and that they might, if it appeared to them on the evidence that the Plaintiff had deprived the De- fendant of his property, allow him the value of it in this action, if he were entitled to recover it in another form of action. I need hardly advert to the different effect which a recovery in tortf and a recovery in this suit, would have on the property in the ship ; and on this part of the case, it is sufficient to say that before Arbitrators should be allowed to take into their conside- ration, a demand not properly cognizable in the form of action submitted, it ought to be clearly shewn, either that the party ori- ginally agreed, or subsequently assented to their so doing ; and that tne racts were such as would entitle the party to recover in another action ; none of which have, in my opinion, been made out in the present casej — I mean not to impute any inten- tional misconduct to the Arbitrators, who are admitted, on all hands, to be highly respectable and intelligent merchants ; but it would have been more satisfactory, as they did not trust to their own judgment, but took legal advice, from which it is to be inferred that they meant to proceed according to Law, if they had communicated to the Plaintiff's Attorney, and now set out in the Affidavits, the opinion they received and the questions proposed ; for, as the case is presented to us, they certainly went beyond their powers, and their award must be set aside. Rule absolute. The Solicitor General and F. A. Kinnear for the Plaintiff. N. Parker for the Defendant. not irbich Irding ]rney, keived id to Iward ff. IN THE SIXTH YEAR OF WILLIAM IV. 125 SHAW versus GRANT. if a Tenant in Common, with tho consent of hit Co-Tenant, nil more than hia own share of the common property , he shall be considered in respect thereof to have acted as the Attent of his companion, and money had and received may be maintained against him. QuERE — If the sale were without the consent of his Companion, if tuch action toould be maintainable ? Th was an action of Assumpsit, tried before Chipman, C. J. in last Michaelmas Term. The Plaintiff charged in his par- ticulars, ifiier alia^ a sum of money had and received by the Defendant to the Plaintiff's use, as to which item, It appeared in evidence that the Plaintiff and Defendant worked together in getting Timber in the winter of 1833 — 4, each furnished his own team, hired his own men, and procured his own supplies; they had no joint accounts; the timber was all put on the same brow, and rafted promiscuously in four joints. There was no evidence of any agreement as to the man- ner of working, or dividing the timber. When the timber was rafted, each took two joints ; those taken by the Defendant con- tained the greatest quantity of timber. Plaintiff and Defen- dant met at Fredericton, on their way to St. John, to sell their timber, and some discussion took place in the presence of a third person, T. R. Robertson, as to the timber, when Grant said, " Shaw is to have half the whole timber at St. John," and also, " he is to half one half of the proceeds of the timber." The Surveyor who measured the timber being called to prove the quantities contained in the several joints, Wilmot, for the Defendant, objected — that the Plaintiff and Defendant were Partners in the transaction, and therefore one could not sue the other until a division and settlement took place ; and secondly, that the conversation in the presence of Robertson, amounted to a special agreement as to the disposal of the timber, which should have been specially set out in the Declaration. Berton, contra — contended, that the parties were not partners in the transaction, and that the conversation proved, rendered Grant liable to the Plaintiff for money had and received, on proof of the sale of the timber. Chipman, C. J. — The relationship between the parties is that of Tenants in Common ; and the question is, whether if one Tenant in Common have, or dispose of more than his share of the common chattels, his companion can maintain monej had and received. As at present advised — I think he cannot. 1«6 HILARY TERM w i. 1^ Berion, fur JMaintif}', tht^n submitted that the evidence should be received (as the point was new and important), subject to a motion to reduce the verdict; which being acceded to, It was proved that the two joints taken by the Plaintiff, con- tained 90 tons and 2T feet of timber, and those taken by the Defendant 109 tons and IS feet, and that the Defendant sold ihe timber taken by him to one Hammond ; the amount of the Plaintif!''s claim for his proportion of the excess was agreed at j610 : 14s. and he thereupon had a verdict for jfS33, to be re- duced to the sum of j£22 : 6s. if the Court should be of opi- nion that this claim was not sustainable in this action. fVilmotf in the same term, in moving for a Rule Nisi to re- duce the verdict, took the following grounds : 1st. That the parties were Tenants in Common, and therefore the Plaintiff's claim was not sustainable at Law. Smith vs. Oriell, 1 East. 368; Martin vs. Knowlys, 8 T. R. 145 ; Bovill vs. Hammond, 6 B. & C. 149, and 9 D. & R. 186. 2d. That money had and received could not be maintained, inasmuch, as it had not been shown that the Defendant had r«- ceived money for the timber. Nightingale vs. DeVeme, 5 Bun, 2589 and 2 W. Bl. Rep. 684; Harvey vs. Archbold, 5 D. & R. 500 ; 3 B. & C. 626, and R. & M. 184. Sd. The conversation in the presence of Robertson, if it amounted to any thing, constituted a special agreement, and was not evidence under a count for money had and received. Defendant was to account or deliver one half the timber. Berton, for the Defendant, on a former day in this Term, shewed cause. The Plaintiff and Defendant were Tenants in Common, each had a distinct property in an undivided half of the common chat- tel, and neither had any right to convert the whole to his own use. It was not necessary that an absolute destruction of the common property should take place, but a sale of the whole property by one Tenant in Common would equally constitute a conversion, and consequently Trover would be maintainable. Barton vs. Williams, 5 B. & A. 395, and the party might, if he pleased, waive the tort, and sue for money had and received. Willes, 209 ; Martin vs. Knowlys, 8 T. R. 146, 1 Chitty on Pleading, 45 ; Evans vs. Bennet, 1 Camp. 299 ; by tlie sale the joint interest was determined ; but apart from so broad a position, the conversation in the present case constituted the Defendant the Agent of the Plaintiff; under that agreement he had a right to sell, and having sold, must be presumed to have sold for mQney, and was liable for money had and received.—* IN THE SIXTH YEAR OF WILLIAM IV. 127 erm, , |i, each I chat- Wells vs. Ross, 7 Tuun. 404 ; Spratt vs. Hobhouse, 4 Bing. 178 ; Longchanip vs. Kenny, 1 Doug. 137. Chipman, C. J. — This is a motion to reduce the verdict of the Jury under the following circumstances. Tiie Phiinlilf'and Defendant were Tenants '.it Common of timber at Fredericton, when a conversation tool* j»lace in the presence of the witness, Robertson. The timber was then undivided ; ench hnd two joints ; those of the Defendant contained the most timber. The witness proved that Grant said, "one half the timber was Shaw's, and should be delivered accordingly at Saint John." He also said, " one half of the value of the timber was to be Shaw's." The action is for money had and received ; and a question has bean raised, if this action can be maintained between these Earties, for the value of one lialf the overplus quantity of tim- er sold by the Defendant, the whole amount ot which over- plus was J:2l : 8s. It was mnintalned by the Counsel for the Plaintiff', that if one Tenant in Common sell u larger portion of the common property than would fall to his share, an Assunipsit should be raised, and he should be made to account for the ovt;rplus to his Co-tenant, ami that the proceeils of the sale would be mo- ney had and received in his hands to the Ose of his Co-tenant, to the amount of the share of the latter. The authorities certainly go far to substantiate this position, but it is not necessary in the present case to decide that point. The conversation in Fredericton was quite sufficient to convey an authority from Shaw to Grant to sell the timber. In that conversation it must be considered to have been agreed be- tween the parties that S/iaw should have one half of the value qf the timber : and this necessarily implies an assent on the part of Shaw that the timber should be sold by Grant. It was proved that Grant did sell, and thereupon under the authority of Wells vs. Ross, 7 Taunt, 40 1, he must be taken to have sold for money. He therefore received Siiaw's share of the proceeds as his Agent, and is liable in an action tor money had and received to the use of Shaw. BoTSFonn, J. — I am of the same opinion. — Grant took the timber to Saint John as Agent for Shaw, and sold it to Ham- mond, and thus as Agent is clearly liable to the action for mo- ney had and received. C/^RTER J. — I think the conversation with Robeitson, amounted to an autl»rity to constitute Grant the Agent of Shaw. The sale of the timbf : took place, and under the authority of Wells vs. Ross, money had and received well lies. 1^8 HILARY TERM 'ill 'CiL :. It is not necessary to decide the other point, whether ii a. Tenant in Common sells the joint property, money had and re- ceived, will lie by his Co-tenant for his share ; but if the case in Willes is good Law, there can be no doubt upon the point, Chief Justice Willes' expression is very clear, and is certainly recognised by Lord Kenyon in 8 T. R. Parker, J. — "Whether the Plaintiff would be entitled to re- cover the sum in question, in this form of action, if the sale of the timber had been made by the Defendant without the con- sent of the Plaintiff, I will at present ofler no opinion, as I think the other ground is quite sufficient to sustain this verdict. The parties were Tenants in Common, and, as such, each had a right to dispose only of his own sliare ; if, then, the Defendant sold die Plaintiff's share with his ai:>en',, which the evidence shewed, he may be fairly considered to have received the purchase mo- ney of such share as Agent for the Plaintiff, and is liable to him for the amount as money had and received. I cannot see any difference between a case of this sort and a sale of sola property ; and I am glad that this decision settles the transac- tion between the parties as justice requires. , Rule discharged. Berton for Plaintiff. Wilmot for Defendant. 4 SPENCE vs. STEWART, impleaded with THOMP- SON. On Nul Tiel Record, pleaded to debt on recognizance of Bail enttred in the Charlotte Common Pleas, and Issue joined. The Court on the Trial, confined their consideration to the single point, " whether the Record produced, corresponded with the Record set forth in the Plead' in^ ' An Allegation under a videlicet, that a lort'f iocs sued out on a parti' cular day, does not necessarily import that the day stated is the teste of the Writ. Chipman, C. J. — This was an action of Debt on a Recog- nizance of Bail entered and acknowledged in the Inferior Court of Common Pleas for the County of Charlotte. The Defen- dant pleaded, first, Kultiel record oi \\ig Recognizance of Bail. Secondly, Nul tiel reeord of the Judgment set forth in the De- claration. Thirdly, no Ca. Sa. issued on the Judgment. The Plaintiff replied to the two first Pleas, respectively, " that there is such a Record," &c. which she prays may be inspected, &c. IN THE SITLTU tear OF WILLIAM IV. 129 nd re- case in point, rtainly 1 to re- sale of le con- I think . The a right old the hewed, ise mo- able to not see of sola ransac- OMP- enUred [t on the ilher the Plead- I a parti' teste of |Recog- Court iDefen- )f Bail. leDe- The it there 5d, &c. To the first Plea she replied, that after the recovery of the Judgment, &c. and before the commencement of this suit, to- wit, on the 8th day of September, 1830, a Ca. Sa. was sued out, which she sets forth. To the replication to the third Plea, the Defendant rejoined, Nid tiel record of the Ca. Sa. to which re- joinder the Plaintiff surrejoined "that there is such a record of the Ca. Sa. which she prays may be inspected," &c. Upon these pleadings, the cause came on for trial by the Record by the Court at the last Term, and the tenor of the several Records put in issue was brought in by Writ of Certiorari, returned ' from the Inferior Court of Common Pleas for the County of Charlotte. The Defendant's Counsel at the trial made no objection to the Record of the Recognizan ce an d Judgment on the two first issues. On the issue arising from the third Plea, he objected, first, That the Ca. Sa. did not pursue the Judgment, the Judg- ment being for ^567 19s. 2d. Debt, and ^8 17s. lOd. costs, and the Writ of Ca. Sa. set forth in the Rejoinder, and sent up under the Certiorari, being for £12 9s. debt, and ^8 17s. lOd. costs. Secondly, that by comparing the teste of the Ca. Sa. with the indorsement on the Writ, it appears to be tested on a day after it issued, viz. on the 1 7th September. With regard to these objectiuns, whatever might have been the result of the ^rstf if properly brought before the Court, the second is a mat- ter of irregularity, of which advantage could be taken only by motion in the Court below, and neither of them can avail on this issue, which depends on the single point, whether the Re- cord produced corresponds with the Record set forth in the pleadings. And this is to be ascertained by inspecting the Re- cord brought in, which is so much a matter of mere compari- son, that it appears to be the practice in the Court of King's Bench in England, that this inspection should be made by the Master, (2 Tidd's Practice, 744.) It is alleged in the Repli- cation that after the recovery of the Judgment, and before the commencement of this action, viz. on the eighth day of Septem- ber, 1st Wm. IV. the Plaintiff sued out a Writ of Ca. Sa., by which said Writ, &c. setting forth the Writ, — and the Record produced corresponds with this Writ thus set forth. The Writ produced bears teste it is true on the seventeenth day of September, 1st Wm. IV. but I do not consider that the time of suing out the Writ therein alleged, especially as the allega- tion is under a videlicety uecessarily imports the day oi the teste of the Writ. In the actual setting forth of the Writ in the subsequent part of the Plea, the return of the Writ is set forth, but the teste of the Writ is not set forth, and there is no variance between the Writ thus set forth and the Writ produced. I am 180 HILARY TERM § )%l fi-^ ik therefore of opinion, that the Writ produced supports the Plea on all the issues now under trial by the Court, and that upon these several issues there must be Judgment that the Plaintiff hath perfected the Record. BoTSFORD, J. concurred. Carter, J. — The only question we are called on to decide in the shape in which this case is presented, is, %vhether or not there is a variance between the Writ of Capias ad Satisfacien- dum, set out in the Replication and the Writ itself as sent up by the Court below : — If the 8th September mentioned in the alle- gation necessarily imported the teste of the writ, which on in- spection appears to be the ITth September, I am inclined to think the variance would have been fatal on Nul tiel record^ but on looking at the allegation, it appears to me that the ma- terial part of it is that the writ of Ca. Sa. was sued out after the recovery of the Judgment, and before the commencement of the suit, and the date is merely put in under a videlicet as mat- ter of form, and does not at all import the teste of the Writ. I am of opinion therefore, that the Replication is supported, and Judgment must be for the Plaintiff. Parker, J. — In my view of this case, the duty now assigned to us, is merely that of trying three distinct Issues, which have been joined by the parties on these pleadings ; and for the proof of which, certain Records of another Court having jurisdiction in the matter are appealed to. On the first and second no question is now made. On the third the issue is not made up on the Plea and Replication, but substantially on the Replica- tion and Rejoinder, and in my opinion the objections urged by the Defendant's Counsel do not properly arise in the present state of the Record. As to the first objection, the issue is not whether a Ca. ISa. was duly sued out on the Judgment, but whether a particular Ca. Sa. as averred in the Replication was in fact issued and returned ; and if it appear by inspection of the Record of the Inferior Court that this was done, the aver- ment is proved. It is true the Ca. Sa. set out does not follow the Judgment, it being for a much smaller sum, but that objec- tion is, I conceive, completely waived by the course the Defen- dant has taken. Let us for an instant suppose the parties be- fore us giving in their pleadings ore tenus. The Plaintiff first says, the Defendant owes me ^567 19s. 2d. as he was special Bail for one Ebenezer Tuttle, at my suit against whom I ob- tained Judgment in the Charlotte County Common Pleas ; and who was not rendered a<;pording to the undertaking of the Bail. Defendant answers : — No ; I am not liable, for though I did become Special Bail, and though you did recover Judgm?nt as you allege, no Ca. Sa. against Tuttle IN THE SIXTH YEAR OF WILLIAM IV. 131 was duly issued or returned. The Plaintiff not making an is- sue on this, replies : — A Ca. Sa. was sued out on that Judg- ment against the principal on the 2d Sept«3mber, returnable, Stc. for j€72 9s. debt, and ^8 17s. lOd. damnges; the same was delivered on the said 2d September to the SlierifF of Char- lotte, and was returned hy hiin voji est inventus, as by the said Ca. Sa. and return, duly filed of record in the said Inferior Court will more fully appear. On this, several courses were open to the Defendant ; I will not say wliich would have been the most advisable, but it is clear, if he simply deny that such a Ca. Sa. was issued and returned, he puts the case on that fact That he has done in his Rejoinder ; the Plaint: T surrejoins and produces the Record of a Ca. Sa. from the Inferior Court, which on inspection is found to correspond with his Replication, and we are bound to pronounce the allegation proved. As the pleadings stand, I agree with His Honor the Chief Justice that the point of variance with regard to the teste, is not brought dis- tinctly up. Had the whole Writ been set out in the Replica- tion, or on Oyer in the Rejoinder, it might perhaps have been taken advantage of; but as it is a question of practice of ano- ther Court, I have doubts whether even then we should be bound judicially to notice, that the day of issuing must necessarily mean the Teste, in opposition to the real time. See Sandon vs. Proctor, 7 B. & C. 800, and the case there cited. As the case stands, there must be Judgment as to all the Issues, that the Plaintiff hath perfect- ed the Record. jF. a. Ktnnear for Plaintiff. J. W. Chandler for Defendant. was )n of iver- >llow bjec- jfen- be- [ first jcial ob- land the for did ittle RAYMOND AND Another versus LUKE. If a cause he referred to three Arbitrators, ivith a .itipulation that any tteo may make an award ; and two of them meet, without notice to the third, and make an award, such award is irregular. This cause was referred by Rule of Court to three Arbitra- tors, * the decision of whom or any two of whom should be final.' Weldon moved to set aside an Award made by two of them, on the following grounds, as stated in the Affidavit of the third Arbitrator. The three Arbitrators met and completed the examination of evidence ; they met to consider and make up their award. 132 HILARY TERM One dissented from the opinion of Deponent and the other Ar- bitrator, and left them, declaring his intention to act no further in the reference. Deponent and the other deliberated further, and adjourned with an understanding that they would have another meeting, of which their absent companion should have notice. Deponent was not further consulted, the other two brought to him an award they had made up and signed, and requested him to sign it also, which he refused to do. He cited 2d Vern. 19, Ruton vs. Knight ; 2 Chitty's Gen. Practice, 119; and Goodwin vs. Sayres, 2 Jac. and W. 249. A Rule Nisi having been obtained, Chandler now shewed cause. The Rule submitted the cause to the decision of three per- sons, or any two of them. All attended and heard the evi- dence ; they deliberated upon the case, and afterwards two made their award, and it was no ground to disturb it, that the third Arbitrator dissented from it. [Chief Justice. — Ought they not to be altogether (or no- tice be given to the absent person) until they igreed to disagree.] They had finished their deliberations, and merely went to the dissenting arbitrator to execute the award. Weldojif in support of the Rule, was stopped by the Court. Per Curiam. The doctrine laid down in Goodman vs. Sayres, that if two Arbitrators out of three meet alone, excluding the third, or not giving him notice, it is irregular, and will vitiate the proceed- ings, must govern this case. Here it appears when the three Arbitrators last assembled, a further meeting was contemplated, and such a meeting was in fact held by two without notice to the third. The Rule must be held strictly, that every Arbitrator who takes upon himself the burden of the reference, and consents to act, must be pre- sent, or have notice of the meetings of his co-Arbitrators. It is impossible to say what arguments might be used by the absent person to change the opinions of the others. — It would strike at the root of all just judgment to suppose that an Arbi- trator before the final decision of the question, had so made up his mind as to exclude argument. Rule absolute. E. B, Chandler for Plaintiff. Weldon for Defendant. m Mr :: I IN THE SIXTH YEAR OF WILLIAM IV. 133 r Ar- irther rther, have [ have ought sted ue J Gen. 249. . jhewed ee per- he evi- •ds two that the (or no- isagree.] nt to the Court. It if two ^1, or not )roceed- kembled, lung was lule must himself be pre- tors. It by the Lt would in Avbi- lade up TURNER versus ELLIOTT. IN ERROK. From the Inferior Court of Common Pleas for the County of Westmorland. w9 general release to an interested person, " excepting a certain Judg- ment in the Releasor's favor," held si^fficient to make such person a tompetent witness, it not appearing that the Judgment related to the matter in question. The Defendant in error, sued the Plaintiff in error in the Court below, in an action of Special Assumpsit. The cause was tried in that Court in November, 1834. It appeared in c!vidence at the trial, on the part of the then Plaintiff that the then Defendant (the Plaintiff in error,) was owner of a vessel, and engaged with the Plaintiff to carry cer- tain goods for freight from New Horton Flats to the City of Saint John. The goods were accordingly shipped ; Edward Buck was master of the vessel, which sailed on her purposed voyage, and proceeded to Saint John ; that the said Edward Buck did not there deliver the goods to the Plaintiff, but sold and converted them to his own use. The Defendant thereupon in his defence offered and produ- ced the said Edwrard Buck as a witness on his behalf, to prove both the carrying and delivery of the goods according to the agreement; Whereupon the Counsel for the Plaintiff insisted that Buck was not a competent witness for the Defendant to prove the matters proposed, by reason of his interest as master of the ves- sel in the question at issue ; whereupon the Defendant's Coun- sel prddpced a Release, duly executed by the Defendant to the said Buck — releasing him " from all and all manner of debts dues, demands, claims, sum and sums of money due, or owing by or from him the said Edward Back to the said Defendant, and all manner of, action and actions, cause and causes of ac- tion, from the beginning of the world to the day of the date, except a certain Judgment in the Inferior Court of Common Pleas in the County of Westmorland in the said Defendants favor" and insisted that such Release restored the, competency and rendered Buck a competent witness for the purposes proposed, but to thii, The Plaintiff's CpunseJ replied that tHe Release was insuffi- cient to restore the competenty — and the Justices delivered theii: opinion that the said Edward Buck was not a competent, witness ; and that siicli Release did not restore ot make him a 134> HILARY TERM ii I competent witness on behalf of the Defendant ; and thereupon refused and rejected his testimony, and with that opinion and direction left the cause to the Jury, who gave their verdict for the Plaintiff for ^615 2s. 6d. damages. A Bill of exceptions having been tendered and allowed, the proceedings were brought into this Court by Writ of Error. E. B. Chandler for Plaintiff in Error : The competency of the witness could be restored by i-elease, 1 Phil. Ev. i25; Rose. N. P. Ev, 96-7. Whenever a witness can be released, he is made competent by the release, and any ob- jection goes only to his credibility. The question therefore is as to the sufPclency of the Release. The instrument tendered was sufficient to release the witness from any liability to the owner of 0\c v ' the cause of action as between the Releasor and Rele.iS^e •■ *v) had already accrued and was complete, and therefore ■ ^^* fiarged by the Release. Bac. Abr. Rel. 2. The Solicitor General for Defendant in Error. The witness may be relets ; .u, but it ir.ust be by such an instrument as will re- move any liaoilicy . o n>.._^ -z under by reason of the subject matter in which he is to t- u w uness ; nor was it necessary for the owner of the vessel to wait until action brought against him or until he had suffered loss by the conduct of the master ; his right of action had already accrued, but the question must turn upon the sufficiency of the instrument. In this Re- lease a Judgment is excepted, and for aught that appears the action in which that Judgment was obtained may have related to the very cause in which his testimony was required ; [Chief Justice. — If so, the Witness was competent without a Release.] but that Judgment may have been by confession, with a defea- sance relating to th's action and its event, or it may have been an interlocutory Judgment ^ and taking into consideration the position of the parties and the want of explanation, it is fair to presume that the Witness was not fully released. General words in a Release shall be qualified by special words. Stark. Ev. 1291. Chipmam, C. J. — The true criterion of exclusion is, if the Verdict to be given in the case in hand, can be evidence for or against the witness, in any subsequent trial ; and if the owner of the vessel had already recovered a Judgment, then the Verdict would no longer affect the witness. The point before the Court, is narrowed, to the import of the terms of the exception in the Reliease, and upon that I entertain no doubt ; the words of the exception are " except a certain Judgment," &c. these words Import a final Judgment, and even if it were for this. cause of action, it would not be a necessary consequence that it was conditional or subject to the determination of this action. si, ' IN THE SIXTH YEAR OF WILLIAM IV. 135 ;upon n and ct for 3, the ror. elease, witness nyob- fore is ndered to the eleasor [nplete, Rel. 2. witness will re- subject iary for nst him his must Re- ars the related IJhief elease.] defea- i^e been on the fair to eneral Stark. if the ! for or vner of Verdict re the :eption words these )r this :e that iction.. ^er; lis It is said there micht have been fraud or collusion between the Releasor and tne Releasee, that might have been shewn, but cannot be presumed. Then it is urged that the judgment excepted may have been only interlocutory, but we are not to presume this against the natural import of the term. It was open for the party objecting to have shewn by evidence that the judgment was merely interlocutory; we will adhere to the natural meaning of the language, especially in a Release, where every thing must be taken most stronjjiy against the Releasor, the effect of which would be to extend the general words, and to narrow the exception. BoTSFORD J. — Concurred Carter J. — The only ground to render the Release inope- rative, is to suppose the Judgment excepted was an interlocu- tory Judgment — or that being a final Judgment, it related to this cause of action, and was affected by fraud or collusion : either of these circumstances might have been proved, but we should carry the doctrine of presumption much too tar, in the absence of any evidence, to support either supposition. Parker J.— -There can be no question that the witness Buck was incompetent without, but could be made competent by a sufficient Release. It is said the R lease does not cover all demands, but excepts a Judgment wliich might relate to the present cause of action; nothing however of that kind appears on the face of the instrument, and, prima faciei the Judgment has no relation to the cause of action in the present case. The party objecting, might have had the witness sworn on his voire dirty and have shewn the relation which the excepted Judgment had, if any. Not having done so, he could not, I think, call upon the Court to make that presumption so as to destroy the effect of the Release. Judgment for Plaintiff in Error. Chandler for Plaintifl' in Error. The Solicitor General for Defendant. REILLY versus GILLAN. An award xoill not be disturbed, because, the witnesses were examined without being sworn, although the Rule of Reference required them to be sworn, if the party objecting to Ike award loere present^ and consent- ed to such examination, ^fk- ^ In last Michaelmas Term, Robinson for Plaintiff obtained a Rule Nisi to set aside an award made by the arbitrators to 136 HILARY TERM f»? m whom the cause was referred. The teriiiji of the submission were that the witnesses should be examined on oath. The PlaintifTs affidavit, on which the Rule was granted, stated that the witnesses, contrary to his expressed wish and protes- tation, were examined without being sworn, and that the Plain- tiff's wife, from whom he lived apart, was also examined, con- trary also to his protestation and remonstrance. The Solicitor General, for the D«fendant, now shewed cause and produced the affidavits of two of the Arbitrators, which directly contradicted the statement of the Plaintiff as to swear- ing the witnesses. The Plaintiff's own witnesses were first examined, and without being sworn. The Plaintiff was pre- sent at the examination of his wife, and did not object, and the Arbitrators expressly swore, that her testimony was immaterial, and without i^ iheir award would have been the same as they had made. Per Curiam. — The Plaintiff must be considered, as having consented to the examination of the witnesses without theit being sworn, inasmuch as his own witnesses were first examin- ed in that manner. The wife could not properly be examined, without the consent of the Plaintiff; he was present however, and did not object to it, and, as it appears by the positive state- ment of the Arbitrators, that her testimony did not alter their opinion, and that they would have made the same award with- out it, there remains no reason for disturbing the award. Rule discharged. D. L. Robinson for the Plaintiff. The Solicitor General for Defendant, DOUGLAS versus HANSON. m mi 5i ;i;i: Plaintiff before action brot^hty rendered Defendant an account amounting to £6'd, reduced by credits therein to less than £20; Defend- ant did not admit the balance. Plaintiff sued for the whole amount, and recovered a balance 0/ £16 Ida. 3d.; Defendant at the trial gave in evidence the account rendered, and sowht further to reduce the balance. Held that Plaintiff vias enti- tled to full Costs. J. W. Chandler^ for the Defendant, obtained in Michaelmas Term last a" Rule Nisi for taxing the Plaintiff's costs, on the scale of the Inferior Courts, according to the practice of the Court when the action is brought for a sum under j£30 ; on an Affidavit of S. G. Andrews, the Defendant's Attornev, which stated that the arfmn ^ ^- I'arkery for Plain f.-ff* « ^^ S«TSFORi^V.lReDo^* ,"r "^^^'^^ to .hew cause J* ™a«inff the balancf> JUa i e « . ®» amountini? to j£4a lo- The Action was brouX Zf^ ^^ ^«"« ^"to evidence Sm "° P'«««e now to set is. """'^ ' "»<» *« Defendant ^OE EX DEM HOWE vwm MEALLY. '"Id. absented hiSV ^^ w^tlT'^^'.'"™''^' "d a«^- ^-« been „^e a. I^^St^^^^^^ IM 1S8 ^ HILARY TERM PALMER, FOSTER and six others versus LONG. Whin a number of persons jointly agree with another as to any par- tieidar matter, the agreement or contract can only be rescinded or put an end to by the consent of all. Indebitatus Assumpsit, for work and labour in and about Defendant's ship ; the declaration contained the common counts : Plea, General issue, and notice of set oJif ; but Defendant not having complied with a Judge's order for particulars, was pre- cluded from going into evidence of his set olF. On the part of the Plaintiifs, a special agreement between the Plaintiffs and Defendant was proved, by which it appeared that if the Defendant failed in paying either the first or second instalment of a certain sum therein mentioned, the Plaintiffs should be at liberty to quit, and rescind the whole contract ; holding the Defendant answerable for the work done. It was proved that the Plaintiffs worked for the Defendant under that agreement, and the Defendant failed in making payment agreeably to the contract, — that it was rescinded by the par- ties about the 24th July, 1832, — that work had been done about the Defendant's ship from February to July, and some extra work, which jointly formed the subject matter of the action. The defence was, that before action brought, the Defendant had settled with six of the Plaintiffs acting on behalf of all, who gave the Defendant a discharge of all claims, both under the special agreement and for work and labour done. An agreement-dated 28th July, 1832, signed by the Defendant and six of the Plaintiffs, was given in evidence, which specified " that the special contract had been and was given up, and *' rendered null and void ; that the Plaintiffs were to be paid *' monthly wages diiring the said time the said Plaintiffs had *' been at said work, according to the account of their time kept " by Mr. John Lobey. That the Plaintifls renounced all *' claim upon the ship, and gave her up to the Defendant, who " agreed to accept her, and pay the Plaintiffs for the time " they had been at work at her." A letter written by Robert Lobey, and signed by Lobey on behalf of the said six Plain- tiffs, was proved to have been sent by two of the Plaintiffs to the Plaintiffs' Attorney, (notice to produce had been given,) desiring " that all proceedings against the Defendant might be " stopped on a certain contract for building Defendant's ship, " as they had settled with Defendant all differences relative " thereto," also cautioning him " not to commence any action IN THE SIXTH YEAR OF WILUAM IV. 189 I action " in their names against Defendant at the instance of Palmer, ** as they would not recognise any such proceedings, and to " transmit fiis account^ the amount of which they would pay." It was proved that Palmer and Foster, the two remaining Plaintins, did not agree to these arrangements, but that the pa- pers were executed during their absence, and against their will ; that neither the contract nor its contents were sent to the At- torney; that Palmer and Foster had never been paid their proportions of the work and labour, and that the amounts due them remained unpaid by the Defendant ; — the amounts due the other six Plaintiffs had been paid. The object of the De- fendant in taking possession of the special contract was to pre- vent them or any of the other Plaintiffs from bringing an ac- tion thereon. Chandler^ in support of motion for Nonsuit, contended, that as this was a partnership concern, the agreement of 28th July* 1832, coupled with the letter to the Attorney of the Plaintiflra, was f discharge of Plaintiffs' claim, and that, therefore, no ac- tion could be sustained. 5 Stark. 1068. Roscoe Ev. 184. 12 East. 317. 1 Stark. R. 102. 2 Camp. 5C1. Gow on Part- nership, 141, 202. And further, that the papers of 28th July, 1832, operated as a severance of Plaintiffs' claim under the special contract, and vested a separate right of action in each ; that the payment of the then respective shares to six of the Plaintiffs, could not be deemed a payment to the other two, therefore that Palmer and Foster could recover their respec- tive proportions by actions in their own names. Stewart, in reply, contended, the agreement of 28t.h July, 1832, was a mere arrangement for the payment, and although probably rescinding the special contract, yet did not destroy the Joint interest of the Plaintiffs ; that the Plaintiffs did not declare on the special contract, considering it as rescinded, but that they resorted to the Indebitatus Assumpsit, which the law implied with the Defendant, for their joint work ; that the spe- cial contract was merely, therefore, used for the purpose of as- certaining the proportion and mode of payment of the eight Joint Contractors ; that the testimony of Defendant's witness shewed that Palmer and Foster had not been paid. As to the letter, it was a mere direction to the Plaintiffs' Attorney to sus- pend proceedings; it might be made a question between the Plaintiffs and their Attorney, but could rot affect Paintiffs* claim against the Defendant — it could not be considered a release or discharge to Defendant, and evidenced no statement or payment by Defendant. It was not pretended that the six Plaintiffs who were paid their monthly wages, settled for Palmer and Foster; the receipts being after action brought, were evidence ^P^T^ 140 HILARY TERM F I 1^'. to reduce the damages, and they only shewed payments of indi- vidual proportions according to the agreement of 28th July^ 1832. — The authority adduced was a case where a debtor had agreed to a severance of the joint debt between Joint creditors, wnich, although it vested a separate right of action in each, did not preclude the creditors bringing one joint action ; but the debtor who assented to a severance, was estopped by his own act from asserting a joint debt. 2 Saun. Pi. Sc Ev. 714. 3d B. & C. 421. Carter J. suggested that the parties had better agree that the Plaintiffs should take a verdict for a certain sum, reserving the points for the opinion of the Court above, on a motion for n nonsuit, which was agreed to, and the Plaintiffs had a ver- dict for ^20. A rule Nisi to set aside the verdict was obtained in Michael-, mas Term, and the points were argued at this Term by Chand- ler for the Defendant, and the Solicitor General for tlie Plain- tiffs — the Court gave Judgment at the close of the argument. Chipman, C. J. — It does not appear that any time is wanted for consideration in this cause. A Joint Contract was entered into by eight persons with the Defendant for building a ship, and six of those eight persons afterwards agreed with the Defendant to put an end to the for- mer ..ontract. Now, if the contract had been put an end to, these eight contractors would have been entitled to an action on the quantum meruit ; but tlie question is, if the joint Con- tract were put an end to. It is clear, that when a number of persons j.ointly agree with another as to any particular matter, no number of those persons can end the agreement or contract unless all consent. Here the agreement to put an end to the original contract, was, made by only six of the eight Joint Contractors; and I do not consider they had aright to destroy the remedy of the other two. Then as to the Receipts: there might be reasons why the other two did not consent to the agreement; the settlement, made may not have been a fair one, and unless they had all agreed to rescind the relation of Partnership, as I have before, said, that relationship mu£: have continued. Then the joint Contract remaining in force when these receipts were given, the receipts must be considered under the particular circum- stances of the case. The substantial matter of these imports, that the six who agreed to rescind, had been paid, accord-, ing to the time they nad worked, and the Court will, look to the substantial effect of them; having been giver, therefpre,, under the agreement, they are to be received only pf:a tanto to reduce the whole amount of the claim of all the eight. ■;■• !■ ■ ,' •■?■*'■:,; HI ' ^ifMi till I m THE SIXTH YEAR OF WILLIAM IV. 141 iniU- July, r had itors, each, ; but )y his .714. e that srving an for a ver- ichael- 'Jhand- Plaiu- nent. wanted rith the )ersons le for- snd tOs action It Con- agree those onsent. ict, was do not ler two. hy the tlement. had all J before e joint i given I ircum- ports, accord- look to No injustice can be done by this view of the subject. These parties, although they sue iointly, recover only the balance, deducting the payments ; ana the apportionment of that balance, is a matter for them to settle among themselves. If parties names be improperly used, they may apply to a Court of Equity to prevent it tU inter se, but that does not af- fect the rights of joint parties as to others. Great injustice would be done by alfowing Long by an agreement with six of the Plaintiffs to defeat the joint claims of the other two. BoTSFORD, J. — I take the same view of the subject. An agreement was made between eight persons, the Plaintiffs, and the Defendant, to build a ship. Under the agreement they performed labour on the ship ; aderwards, on the 28th July, 1832, six of those persons, leaving out Palmer and Foster, agreed with Long to rescind the agreement, and made a set- tlement for the amount of their labour respectively, and on the same day a letter was addressed to the Plaintiffs' Attorney, di- recting him to stop proceedings. They appear to have com- bined with Long to settle, and perhaps tor t^e purpose of throwing out Palmer and Foster. There is lair ground to infer connivance for that purpose ; and I think another infer- ence is, that proceedings had been already commenced in this action, the instructions in that letter were to stay proceedings. Now, eight persons having contracted, six could not rescind the agreement, without the approbation of the other two. Is it not just that the other two should use the names of the eight to recover the amounts due to them^? The receipts are only evidence pro tanto. If Palmer and Foster had brought separate actions, the re- ceipts might, and, I think, would have stopped Long from set- ting up the joint Contract ; but it does not, therefore, follow, that the balances due cannot be recovered in the action by the whole eight. Carter, J. concurred. Parker, J. having been formerly engaged in the cause at the Bar, gave no opinion. Rule discharged. The Solicitor General^ Stewart and Weldon for Plaintiffs. E. B. Chandler for Defendant. ianto to 142 w HILARY T.EftM KEYS vrnus FLINN. Under very peculiar circumstances the Court set aside a Verdict for the Plaintiff—the weight of evidence being in favor of the Defendant, and the Verdict evidently the result of a compromise. This was an nciion of Assumpsit, for Goods sold and deliv- ered "and money had and received, tried before Parker, J. at the last Northumberland Circuit, in which a Verdict having been returned for Two Hundred Pounds, in favor of the Plaintiff, a Rule Nisi was obtained by J. A. Street, in Hilary Term to set the Verdict aside, and grant a new trial on the grounds of the same being contrary to evidence and the Judges charge — cause was shewn in this term by Wilmot for the Plain- tiff. The circumstances of the case were very peculiar ; there was evidence on the part of the Plaintiff, of considerable pro- perty having been transfered by him to the Defendant ; and of a large sum of money being paid into the Defendants hands for Plaintiff's account; the Defendant gave evidence of several payments made by him for the Plaintiff— he also endeavoured to impeach the testimony of the Plaintiffs principal witness, but principally relied on declarations both written and verbal, made bv the Plaintiff; one, even as recent as the day before the trial, that the Defendant owed him nothing, and that the suit was not carried on by his direction?. These declarations were attempted to be accounted for by the PlaintifTs mental imbecility of which there was some, though not very clear, evi- dence. It was late in the evening before the evidence was con- cluded, at which time the learned Judge proposed an adjourn- ment to the next day, but the Jury, most of whom were tales- men, stating that they could not attend at that time without great inconvenience, the Counsel on both sides agreed to waive the privilege of addressing the Jury, and united in a request to the Judge, to sum up the cause without hearing Counsel, to which His Honor very reluctantly consented, deemin^j; it a case which peculiarly called for their assistance in closing, as it was opened very briefly. In charging the Jury, His Honor read over to them the whole evidence, and left the case rather favourably for the Defendant, considering, that even if the Plaintiffs witness were entitled to credit, the Plaintiff's decla- rations would be a auf&cieut answer to the action, unless it appeared that at the time of making them he was from imbeci- lity of mind, or otherwise the dupe of the Defendant ; and His Honor adverted to the circumstance, that he had particu- larly called the attention of the Plaintiff's Counsel to the im- IN THE SIXTH YEAR OF WILLIAM IV. 143 portuncc of giving distinct evidence on thnt hen 1, which he offered to receive after the Defendants case had closed. II these declarations were got rid oi\ and the Plaintiff's witnesses were believed, the state of the accounts between the parties, shewed a balance in his favour of about j6400, or over. Ano- ther question arose, as to whether the whole transaction be- tween the parties, was not entered into with a view to defraud the PlaintiiT's Creditors ; and His Honor stated his opinion to the Jury, that if such were the case, the Plaintiff ought not to recover, there being nothing to shew that the Creditors were at all concerned in carrying on tliis action. The Jury retired between 11 and J 2 o'clock,* and were out the whole night, and part of the next day, before they could agree, and then brought in a Verdict of ^200, which would not accord with the evidence on either side. Under the very peculiar circumstances of this case (of which it is not necessary to give a more particular detail at present,) the Court made the Rule for a new trial absolute on payment of costs, considering it a proper case for investigation before another Jury ; especially as the weight of the testimony was hi flivour of the Defendant ; the Plaintiff's declarations that the Defendant was not indebted to him, having been established by several witnesses, and the state of his mind, if that afforded a sufficient answer to these declarations, admitting of more satis- factory evidence, than was given at the former trial. The a- mount of the Verdict also a})peared, the result of a compro- mise, and not in accordance with the evidence. Doe ex Dem KINNEAR versus WISWELL. o waive request ounsel, ling it a sing, as Honor rather 1 if the s decla- nless it imbeci- and A peremptonj imder taking will n«l be enlarged, merely on the ground that when the cause was called on at the Circuit, a Toithess who rtsided in the Town was not in Court, and that thtrefora the record was with- drawn. The Solictor General moved to enlurge u peremptory un- dertaking of the Plaintiff to proceed co trial in this cause, at the last Saint John Circuit, oa an affidavit wiiich stated that the cause was entered for trial, and the Plaintiff''s witnesses who were resident at Saint John, were not in attendance when the cause was expected to come on — the Attorney sent for them, but two of them could not be found; expecting them to come into Court, the Plaintiflf's Counsel moved tor trial, if' w 144 HILARY TERM and withdrew the record after eight of the Jury were sworn, soiely from the absence of the witnesses. N, Parker, for Defendant, urged — that the absence of wit- nesses under such circumstances, might be a sufficient cause to discharge a^rs/ rule for Judgment as in case of a non-suit, but was tmolly insufficient to enlarge a peremptory underta- king. Chipman, C. J. — Absent. BoTSFORD, J. — Very little ground is stated, no reason ap- pears for the absence of the witnesses. The undertaking ought not to be enlarged. Carter, J. — It appears the witnesses were in St. John, and the only ground of the application is, that they were not in Court when the cause was called on. Parker, J. — This matter is important as a point of prac- tice. Parties and their witnesses must learn the necessity of a punctual and regular attendance. No sufficient reason has been given for the non attendance of the witnesses in the pre- sent case, to Justify the Court in opening the peremptory un- dertaking. The rule for a non-suit must be made absolute. MOULTON versut DIBBLEE. Servict on a Clerk is intufficient, unless at the Office or DtoelUng House of the Jittomey. Robinsouy moved to make absolute a rule nisi, for Judgment, as incase of a nonsuit, on an affidavit of the service of the rule on one Hammond, the clerk and agent of Needham, the Plaintiff's Attorney. Per Curiam. — The rule if served on a clerk, should have been served at the office or at the dwelling house of the Attor- ney, which is not stated in the affidavit to have been done. Rule refused. m\i ! 1 ♦"II i ExpARTE. THE ST. JOHN WATER COMPANY. Jin application for a warrant to assess the amount to be paid for cer- tain Lands required by the Company — was refused, it not being shetDn, that the Corporation deemed the Lands absolutely necessary. N. Parker, moved for a warrant to be issued to the Sheriff of Saint John, to summon a Jury to assess and ascertain the IN THE SIXTH YEAR OF WILLIAM IV. 145 have Lttor- le. Y. w cer- \hewn, Iheriff the ■urn, or annual rent to be paid for certain Lands of the Hon. Ward Chipman, upon and through which the Company were de- sirous of making reservoirs, and carrying pipes and conductors. The application was founded upon an affidavit, stating that a Committee of the Company bad applied to the owner of the Land, who had declined to sell the Land or to name an Arbi- trator to determine the value. The Company were incorpo- rated by Act of Assembly, 2 W. 4, c. 26, the 15th sec. of which act authorizes the Company " to draw water from, erect reser- " voirs on, and to carry pipes or conductors through (when " stick shall be deemed absolutely necessary for the conveyance of " water to the City by the said Corporation) the private pro- " perty of individuals, whose lands may lie at the source or in " the line, the said Corporation shall think it expedient to con- " vey the water from, or through, &c." and then provides that the Corporation shall first pay for the use of the same, or any damage to the owner, which, in case of disagreement, shall be determined by arbitration ; and if, the owner shall decline ma- king such agreement or appointing an arbitrator, *' then the " said Corporation may make application to the Supreme " Court, (stating the grounds of such application,) and such " Court is empowered to issue a writ or warrant, &c." Carter, J. — How does it appear to be absolutely necessary to carry the water through the Lands required ? The Commit- tee do not themselves swear that the Lands are necessary — they should report to the Corporation. The Corporation must adopt their act, and determine the necessity, and such deter- mination must be made to appear by the Oath of the Com- mittee, ©r Directors, or other persons. 1 do not express this as a Judicial opinion, but throw it out as the least terms the act will admit of — it is sufficient in refusing this applica- tion, that it is not made to appear that the Corporation deem the Lands absolutely necessary. Parker, J. — I am also of opinion that sufficient grounds have not been laid, for the interference of the Court. It does not appear that the Corporation have, as yet, decided on the necessity of obtaining the Land, which must at all events be done ; but I am rather under the impression that the Legis- lature, in directing the grounds of the application to be stated, intended that the Court should also be satisfied of the nececsi- ty, before exercising its authority. I mention this now, as the Corporation may consider it expedient to apply to the Legis- lature for an alteration in the act, if the powers already granted are not deemed sufficient. The present motion certainly can- not be sustained. Note. — The Chief Justice, and Boisford, J. did not sit during this application. 'e 1 [K n F1 r;^!! 146 IIILAUY TERM HATTON versus FLAHERTY. A Judgment signed on the 16th October, (he Rule Nisi having been entered on the ISth — voai held irregular, the four day Rule not having expired. This cause stood for trial at the St. John Circuit, in June 1835, when bjr the consent of the Attornies, a Verdict for ^520 15s. was entered for the Plaintiff, " subject to be redu- ced by the award of Angus M'Kenzie, — — , , or any two of them." Angus M'Kenzie, the only arbitrator named, was nominated by the Plaintiff; the Defendant was to name another, and the two were to choose a third, " their award to be final and binding upon the parties, if made and ready to be delivered on or be- fore the first day October, and the said verdit ;t, or such re- duced amount as the first arbitrators might award to be enter- ed on the Postea and Judgment thereon to be entered up with costs to be taxed of the then next Michaelmas or any subse- quent Term." The Defendant's Attorney was under an impression that the first day of Michaelmas Term was the time appointed for ma- king the award ; on the 8th day of October he applied to the Plaintiff's Attorney, and offered to appoint an Arbitrator and proceed; the Plaintiff''s Attorney declined doing so; and on the Ist day of Michaelmas Term, the 13th of October, entered a Rule for Judgment on the Postea, and on the 16th the Roll was brought in, and final Judgment signed for the amount of verdict and costs. On a subsequent day in the same Term, the Solicitor Gene- ral for the Defendant obtained a Rule Nisi for setting aside the Judgment upon two grounds : 1st. That the Judgment was signed before the expiration of the four day Rule. 2d. That the Plaintiff was not entitled to enter up Judgment for the amount of die verdict without a special application to the Court. Cause was now shewn by F. A. Kinnear for the Plaintiff; the Defendant would not within the lime limited appoint an Ar- bitrator, and therefore the Plaintiff was entitled to act upon the verdict which had been entered for his protection and benefit. Evans vs. Davies, 3 Dowl, P. C. 786 ; Doe d. Fisher vs. Saun- ders, 3 B. and Ad. 783 ; Hall vs. Phillips ; 9 Bingham, 89. Per Curiam. The argument of the learned Counsel for the Plaintiff, might have been a good ground of application to the Court to call IN THE SIXTH YEAH OF WILLIAM IV. ^147 red of the of to lAr- the lefit. lun- upon the Defendant to shew cause why the verdict should not stand ; but without agitating the second point the Rule must be made absolute on the first; the Judgment is irregular, having been signed too soon. The Court strongly recommend a new arbitration. The Plaintiff has a right to pursue his own course, but he should be exceedingly well advised before he ventures again to enter up his Judgment, without an application to the Court. Rule absolute. F. A. Kinnear for the Plaintiff. The Solicitor General and L. Hazen for the Defendant |i(i;ht I call HILARY TERM 6th WILLIAM IV- ANNO DOMINI 1836. GENERAL RULES. 1st. It is ordered, That in future the Clerk of the Pleas do keep a paper to be called the Motion Paper, in which shall be entered all Motions of which notice may have been given ; such entries to be made on or before the first day of each Term, and to stand in the said Paper in the order in which they may be made ; and the matters contained in such Motion Paper shall come on to be heard on the second day of the Term, before the Special paper is gone into. 2d. It is further ordered. That if notice of any motion, and a copy of the affidavit or affidavits on which it is intended to be grounded, shall be served upon the opposite party, his at- torney or agent as the case may be, fourteen days before the Term at which the motion is intended to be made ; a rule ab- solute may be made in the first instance, if the Court shall see fit ; and in all such cases the cause shall be entered on the Motion paper. 3d. It is further enacted that no Motion shall be made for Judgment as in case of a nonsuit, pursuant to the Statute 14 G. 2 C. 17, without notice having been first given thereof to the Plaintiff, his Attorney or Agent as the case may be, to- gether with a Copy of the Affidavit on which the same is ground- ed at least fourteen days before the Term at which such mo- tion is intended to be made, and without entering the same on the Motion paper. 4th. It is further ordered, That on motion made in open Court pursuant to the said entry, and on due proof of the ser- vice of notice, and copy of Affidavit as -directed by the prece- ding Rule, the Defendant shall be entitled to a Rule absolute for Judgment as in case of a nonsuit, unless the Court on just cause and reasonable terms shall allow a further time for the trial of the issue, or unless the Court should think fit to en- large the time for showing cause to the next term. ' )en Ice- lute lust Ithe 149 5t1i. It Is further ordered, That no Judgment of non proi !ihaU be signed for want of a Declaration Replication or other subsequent pleading until ten days next afler a demand thereof shall nave been made in writing upon the Plaintiff, his Attor- ney or Agent as the case may be. 6lh. It is further ordered, That demurrer Books be deliver- ed to the Judges on or before the first day of the term, at which the Demurrer is to be argued ; the Books for the Chief Justice and Senior Puisne Judge to be prepared and delivered by the Plaintiff's Attorney, and the Books for the two Junior Judges by the Defendant's Attorney ; and that the sauje Cule do also apply to other cases in which Paper Books are requir- ed by the practice of the Court to be delivered to the Judj^es. 7th. It is further ordered, That a copy of the bill of parti- culars of the PlaintifTs demand, and also of the Defemlants set off (if any) shall be filed by the Plaintiff's Attorney with eve- ry Record of Nisi Priusatthe time of entering the same. 8th. It is further ordered, That it shall not be necessary to issue more than one summons for attendance before a Jud^fe upon the same matter ; and the party taking out such sum-^ mons shall, if the Judge see fit, be entitled to an order on the return of the summons, unless cause is shewn to tha contrary. WARD CHIPMAJ^, W. BOTSFORD, J. CARTER, R. PARKER. piiH li >'« it- 3| TRINITY TERM, IN THE SIXTH YEAR OF THE REIGN OF WILLIAM IV. KERR VERSUS CONNELL. A License to cut a certain quantity of Timber from Lands des- cribed in the Licence and to remove the same^ does not convey an interest in Lands within the Statute of Frauds, or give any pro- perty in standing Trees. Such License gives the Licensee no right to Timber cut within the described limits, 'by a stranger, without authority ; Timber so cut remains the property of the Owner of the Land : against every other person, the possession of the Timber and the labour bestowed upon it gives the Maker, although a wrong doer, the right to it. If two persons expend labour in cutting and hauling Timber under an agreement that such Timber is to be got on the halves, they are Tenants in common — and neither can convey as against the other more than his undivided share. THIS was an action of Trover, to recover damages for a quantity of Timber claimedTay the Plaintiff, and taken and con- verted by the Defenur.nt. At the trial before Parker, J. at the Carleton Circuit in September, 1835, it appeared in evidence on the part of the Plaintifl^ that a Licence issued in December, 1834, from the Crown, to one William J. Bedell, " to cut two hundred tons of white pine timber from Crown Lands therein described, and to remove the same." This licence was pro- cured by the Merchant fiedell, for the benefit of the Plaintif!^ who was a Lumberer. The Defendant hjid a Licence at the 9. 1.52 TRINITY TERM B f'' lame period, to cut Birch Timber on the same land, and in like manner had placed it in the hands of the Lumberer for v/hom he had procured it, one Walton. Walton employed a person named Price, to hew Birch Timber for him (Walton,) under Connell's Licence ; and it was agreed that if Price should find any Pine Timber, he should miike and hew it, and pre- pare the roads tor hauling, that Walton should haul it, and that it should be shared between them, when hauled to the brow. Price, under this agreement, commenced making birch timber, and also manufactured sixteen sticky of Pine Timber, which were hauled part of the way to the brow, by Walton. At this lime the Plaintiff forbade Price to make any more Pine Timber, and at the same time paid him for his labour in mak- ing the sixteen sticks, and bought from him his right thereto, and hauled the said sixteen sticks to the brow ; they were raft- ed in the Spring by the Plaintiff, and carried down the River to a place where the Plaintiff had other Timber. In the night the fastening of the timber was cut, and a part of the timber carried away — eight sticks of it, which were the subject matter of this action, were afterwards found in the possession of the Defendant, who stated that he had purchased them from Walton, and refused to deliver them to the PlaintifiP. A nonsuit >^as moved for by Berton for the Defendant, on the following grounds ; viz. That the Licence to Bedell could not be transferred by pa- rol, inasmuch as an interest in lands was vested in the Licensee, within the Statute of Frauds ; and being an instrument under seal ; it could not be assigned except in a similar manner. That the Licensee derived by the Licence only a right to cut Trees to be made into timber, and had no right to timber already cut and made by others. That Price was only a servant of Walton, to be paid in kind for his work and labour, and had no right in the timber to sell, or if he had, his right was only as a tenant in common to one half the timber. The learned Judge reserved the points, and gave leave to the Defendant to move for a nonsuit. The Plaintiff obtained a verdict for the value of the Timber. Berton^ for the Defendant, moved, in last Michaelmas Term, and obtained a Rule nisi^ to set aside the verdict and enter a nonsuit. In support of the first point, he urged that the Li- cence fi om the Crown, which gave metes and bounds to the land comprehended therein, vested in the Licensee an interest in lands within the Statute of Frauds, and therefore, if assign- able at all, was not so by parol, 6 E. 502 Crosby v. Wads- worth— 2 Bos and Puller, 452, Waddington v.. Bristow— S m\ IN THE SIXTH TEAR OF WILLIAM IV. 153 to )ne to led Irni) sr a ILi- Ithe rest Ign- \ds- Taun. S8, Eramerson v. Heelis. The Court in granting the rule, excluded this point, and determined that the Licence vested no interest in the lands within the Statute of Frauds. Cause was shown by the Solicitor General in Hilary Term. The licence under which the Plaintiff claimed the timber, was obtained by Bedell expressly for the benefit of Kerr, as was shown by his declarations in evidence. That fact was further substantiated by the document being in the possession of the Plaintiff; the manner of obtaining it agreed with the common custom of the country, and even, if in the opinion of the Court, the license should be considered not transferable, yet Bedell must be taken to have been only an agent, acting for the Plaintiff his principal, 1 Camp. 337, Duke of Norfolk v. Worthy : as to the right in the Licensee to Timber already cut, Walton and the Defendant had no right to any but Birch Timber; if, then. Price, even under his agreement with Wal- ton cut Pine Timber, no right thereto was vested in Walton, and it having been transferred by the maker to the Plaintiff, his right to it could only be questioned by the Crown, and even as between the Plaintiff and the Crown, he having paid stumpage for a certain quantity of timber, of which this was to be reckoned a part, and having paid for the manufacture thereof, was, even as against the Crown, the owner of the Timber. Berion, in support of the Rule. The license issued to Be- dell and nothing appeared therein to shew that he acted for the Plaintiff, the stumpage money was paid by him — the li- cense was to him, and to him alone — and no other person could claim in his own right under that license. The Plain- tiff rested his claim to the Timber, on his right under Bedell's license ; if then the license gave him no right, his claim to the Timber was unsupported. And again, even supposing the Timber to have been got under Bedell's license, it would be fair to presume, that Kerr was but the servant of Bedell, and if so, any action should have been by Bedell, and not by the Plaintiff In this term the Court delivered their opinions. Chipman, C. J. This was an action of Trover for a quantity of fVhite Pine Timber in which a Verdict was given for the Plaintiff, with leave reserved at the trial for the Defendant to move to enter a Nonsuit. The main question discussed on this motion has been, as to the Plaintiff's property in the Timber in question. The facts as deduced from the evidence given and the finding of the Jury, may be stated as follows :-^ 154 TRINITY TEAM m ■X\r Mirk. On the 18th December, 18S4, the followiiiff Licenite was is- sued t'rom thd Crown Lands Office, to W. J. Bedell. " Applicatioa No. 1807, Liconsa No. S45 (or 200 T. Tonnage. « £12 153. paid (L. SO " By Hid Excellencv Major General Sir Ar- '^ cbibald Campbell, Baronet, G. C. B. Lieu- Abchibald Campbbll. " tenant-Governor and Commander in Chief " of the Province of New Brunswick, " Stc. &c. &c. " Upon application niado to me by William J. Bedell, " of the Parish of Fredericton, in tho County of York, " in the Province of Now-Brunawick, and recommended " by the Commissioner of Crown Lands and Forests, " who has hereto sot his hand and seal. I do hereby " grant License unto hitn the said \Vm. J. Bedell, to out, " aubject to the Regulations heretofore published, and " under the terma and conditionn in those Regulations " contained, Ttoo Hundred Tons White Pint Timber, " from ungrantod and unapplied for Crown Land, situate " on the East side the River Saint John, to be bounded " South by the lino run by Deputy Garden, East by the " Monquat, North by Smith's Brook, and West by the " Granted Land, and to remove the same. The said " William J. Bedell, is not to cut any Timber without " the limits before described, uor any more than the " quantity herein specified, on pain ofhaving tho whole " seized. This License to continue in force (unless le- " gaily suspended) until the first day of May next ensu- " mg the date hereof, and no longer, after which time no " Timber is to be cut or hauled out under pretence " thereof." (Signed) THOMAS BAILLIE, Commissioner of Crown Lands and Forests. (L. S.) " Given under my Hand and Seal at Fredericton, the " 18th day of December, in the fifth Year of the Reign " of His Majesty Kins William the Fourth, and in the " Year of our Lord One Thousand eight Hundred and " Thirty Four. " By His Excellency's Commaqd, (Signed) WILLL\M. F. ODELL. " Deputy Surveyor Maclauchlait." This License was placed in the handsr of the Plaintiff bv the Licensee Bedell, to get the T'mber under it» and if the Li- cense could be assigned by the Tacensee to another person, and be transferred by words and delivery only, it was not con- tended that it was not sufficiently transferred by Bedell to the Plaintiff: It appeared indeed that the Licence was procured by Bedell for the benefit of the Plaintiff, according to what IN THE ilXTH YEAR OF WILLIAM IV. 155 the the and ^. was stated to be a common custom, Bedell being a Merchant dealing in timber and Kerr the Plaintiff being u Lumberer. The Defendant Connell, had a licence to cut Birch Timber on the Land described in the above License to Bedell, and this License was in like manner put by the Defendant, who is also a Merchant, into the hands of one Walton, a Lumberer, to get the timber under it. One Price was employed by Walton to hew thp Birc/i Timber under the latter License, and it was agreed between Price and Walton, that if Price found any Fine Timber upon the ground, they Price and Walton should get it to the halves, on the Brow. Price was to cut, hew, and swamp it, and Walton to haul it out to the Brow. The Pine Timber in question in this suit was cut and made by Price, and hauled part of the way and yarded by Walton un- der this agreement. In this state of aftairs the Plaintif!' inter- fered and claimed the timber under his Licence, i. e. the above License to Bedell, forbidding any more Pine Timber being cut by Price, and bought from Price all his right to this timber, paying him for the labor he had expended upon it. — The Plaintift' then hauled the timber to the bank or brow from the place where Walton had yarded it. There were in all sixteen sticks of this Pine Timber, and the Defendant Connell, under a transfer from Walton took possession of eight of these sticks — this action was brought for these eight sticks. The Plaintiff founded his right of property in this tim- ber upon the above License to Bedell — and it is advisable in the first place to inquire into the nature of the right which the License conferred upon the Licensee named in it, supposing him to have been the person who actually exercised the right which the Licence gave : for if it should appear, that the Li- cence vested no right of property to the timber in question in this cause in the person to whom it was expressly granted, it will be unnecessary for the Court in giving judgment to go into the questions which have been mooted, as to the power of the Licensee to assign the License, no such power being ex- pressed in the License ; or whether the Plaintiff might, under the circumstances, be considered as the Principal m the Li- cense, and Bedell only as the Agent in procuring it. The nature of a License is explained by L. C. J. Vaughan, in the case of Thomas vs. Sorrell — Vaugh. 351, in the follow- ing manner : — ** A Dispensation or License properly passes no interest, nor " alters transfers property in any thing, but only makes an *' action lawful, which without it had been unlawful. As a " Licence to go beyond the Seas, to hunt in a man's Park, to ** come into his House, are only actions, which, without Li- 156 TRINITY TERM ffi*'^!'. t,'i«.(,: " cense had been unlawful. But a License to Imnt in a man's " Park and to carry away the Deer killed to his own use^ to " cut down a Tree in a man's ground and to carry it away the " next day after to his own use, are Licenses as to the acts of " hunting and cutting down the Tree, but as to the carrying " away of the Deer killed and Tree cut down, they are Grants. " So to licence a man to eat my meat, or to fire the wood in *' my chimney to warm him by, as to the actions of eating, " firing my wood, and warming him, they are Licenses ; but " it is consequent necessary to those actions that my proper- " ty be destroyed in the meat eaten, and in the wood burnt, " so as in some cases by consequent and not directly and as its " effect, a Dispensation or License may destroy and alter pre- « perty." A reference to the terms of the Licence in the present in- stance will best explain its meaning. It is " to cut" and " to remove," subject to the conditions of the Licence, " two hun- dred Tons White Pine Timber" from ungranted and unap- plied for Crown Land, situate as described in the Licence. A License in these terms clearly amounts to a Grant of the Tim- ber which may be cut and removed according to the terms of the License, but of no more. It conveys no title whatever to any Timber which is not cut and removed by virtue of the License. The case of Basset vs. Maynard — Cro. Eliz, 819, in which a question arose as to the sale of a quantity of wood to be taken at the Vendee's election, is so apposite to the present case, and so fully supports the position I have just stated, that 1 will cite it at large. " Action sur trover and conversion of certain loads of wood. " Upon a special Verdict, the case was, — Sir Thomas Palmer " was seized of a great wood, and bargained and sold to one " Cornford and his assigns as many trees as would make 600 " cords of wood, to be taken by the assignment of Sir Thomas " Palmer. Cornford assigns over his interest to the Plaintiff. " Afterwards Sir Thomas Palmer granted to the Defendant so " much of his wood as would make 4000 cords of wood, to " be taken at the Defendant's election. The Plaintiff after- " wards by the assignment of Sir Thomas Palmer, cut down " the trees in question, to make 600 cords; and the Defendant " claiming them by virtue of his Grant, took them. It was " found that there was sufficient wood left for the Defendant " to make his 4000 cords, et si, &c. Upon this Verdict, it " was moved, that here was not sufficient title found for the " Plaintiff. For first, it is not found that the bargain and sale " was for any sura of money, nor upon any consideration. Sed " non allocatur. For it is intended to be so, being found by 1 c & I s IN THE SIXTH YEAR OF WILLIAM IV. 157 " the Verdict. But if it had not been so found, it might per- " adventure have been otherwise, as Dyer, 91, is. " Secondly, it was alleged, that this Grant to the PlaintiiF " is void, for until the assignment made by Sir Thomas " Palmer, no interest vested in Coruford himself, so as he " could not make any Grant thereof, over. But all the Court " held the Grant to be good ; for being made to him and his " assigns, he may make an assignee, which shall enure as a " nomination to one, who is to have by the appointment of " Sir Thomas Palmer ; and it may well vest in him, as the " interest also. And here he hath no interest before the as- " signment made by Sir Thomas Palmer ; insomuch as if Sir " Thomas Palmer will not assign it in convenient time, he " himself might take them; and therefore he may assign this " interest, as 44 Edw. III. pi. 43 is. But admitting the Grant " to the Plaintiff had been void, yet Popham said that the Ac- " tion was maintainable ; because hy the cutting down of them, " he had possession and a good title against the Defendant and " every stranger ,- and being cut down it was not lawful Jbr the " Defendant to take them : for if one sells 1000 cords of " wood, to be taken at the Vendee's election, and afterw£.rds " the Grantor cr a stranger cuts down some of the wood, the " Vendee cannot take that which is cut down, but he ought to " make his Grant good, out of that which is growing. As if " Estovers were granted unto him, to be taken in a great " wood, and the Owner of the wood cuts down some of the " wood, the Grantee cannot take that which is cut down, but " he must take his Estover out of the residue. And if all be " cut down, he hath not any remedy, but an action upon the " case. So here, although the Plaintiff' hath not a good title, ' *' yet his having possession of them, being cut down, sttfficeth. " Quod Gawdy et Clinch concesserunt — wherefore it was ad- " judged for the Plaintiff, 5 Co. 24 v." In the present case the Timber was not cut under Bedell's License, but oy persons altogether unconnected with it, and so adverse to it, that they were forbidden by the Plaintiff to proceed. If the argument adduced on the part of the Plain-* ' tiff, that the Licensee under Bedell's Licence had a right to avail himself of Price's acts in cutting Pine Timber on the Land included within the Licence, by paying him for his labor in so doing, were acceded to, it would make the Licence to convey a general authority from the Crown to compound for any trespass committed in cutting White Pine Timber on the Land described in it — an inference, which requires only to be stated, to shew its utter inadmissibility. I am clearly of opinion that not a shadow of title can be derived under Be- 158 TRINITY TERM *-^'-''i md ■U mm ■ ''ili if m •A dell's License to the Timber cut by Price, which is the subject of this action. In whom then was the property in this tim- ber ? I answer that the property un-iloubtedly remained in the Crown, the Timber having been cut on Crown Land& without authority. But it is for the Crown to enforce its own rights. Against every person but the King, the possession of the Timber and their labor bestowed upon it, gave to Price and Walton the right to it, and the nature of their relative rights is to be determined by their own agreement. Each of them had expended labour on the timber under the agreement, and by that agreement, as the timber "was to he got to the halveSy they were Tenants in Common, each of one half; and neither of them could convey as against the other, more than an undivi- ded moiety. The sale from Price to the Plaintiff therefore conveyed to him Price's interest onlj', i. e. an undivided moiety, and the Plaintiff became a Tenant in Common with Wal- ton or Walton's assigns, when Walton conveyed his share. Walton's interest in the Timber was transferred to the Defend- ant, who thus became a Tenant in Common with the Plaintiff — and as it is the general rule, to which this case does not afford an exception, that a Tenant in Common cannot maintain trover against his companion, I am of opinion that upon this ground^ the rule for entering a nonsuit must be made absolute. BoTSFOBD J. — Concurred. *> Carter, J. — To maintain this, which is an action of trover, the Plaintiff must shew some right of property in the subject of the action ; this he has attempted to do in two ways : — first, he claims a right to the Timber in question under a License from the Crown ; the Licence which he offers in evidence in support of this right appears to be a Licence from the Crown to W. J. Bedell, to cut (subject to certain Regulations which do not appear in evidence) Two Hundred Tons of White Pine Timber, from Crown Lands described therein, and to remove the same : — now it appears most clearly from the evidence that the White Pine Timber, which is the subject of this ac- tion, was not cut under the License either by the Plaintiff, or by Bedell: but was cut by a person named Price, without any authority or right whatever. The case of Bassett vs. May- nard, already cited from Cro. Eliz. 819, is a direct authority, to shew that this License could give neither the Plaintiff, ;ior Bedell any right to Timber so cut, and so far as this case i» concerned, it will be sufficient, on this ground alone, to decide that the Plaintiff has failed in establishing any title to the Tim- . ber m question under the License. On the second ground on which the Plaintiff rests his title, I think he has also failed : claiming this Timber by a transfer IN THE SIXTH YEAR OF WILLIAM IV. 159 any lay- rity, l;ior 36 i» Icide rim- fe,I isfer from rvice, he cannot have a better title to it than Price him- self had. As far as all three parties are (-oncerned : — from the agreement between Price and Walton, they would become joint owners of the White Pine Timber cut by Price — then Wal- ton transfers bis share to t!ie Defendant, and Price his share to the PlaintifF— the Plaintiff and Defendant would thus be- come Joint Owners of the Timber, and therefore an action of trover would not lie by one against the other. For these reasons, I think the rule for a nonsuit must be made absolute. Parkek, J. — It is impossible for the Plaintiff to establish his right to recover in this action, by virtue of the agreement made with Price ; unless he can make out a title to the Tim- ber in question, fiom the Crown under the Licen5e given to Bedell. At the time of such agreement, the Timber (setting aside the Crown rights) was either in the sole possession of Walton or in the joint possession of Price and Walton, under a previous agreement made between them, for the purpose of being hauled from the woods to the brow of the river upon shares, an agreement which constituted between them the re- lationship ot Tenants in Common ;-^it is clear then that Price at the time of his delivering the Timber to the Plaintiff, had neither the right of property nor exclusive possession ; and as the Defendant stands in Walton's shoes, if ihe Plaintiff cannot shew a title independently of Price's act, he must fail. One very material question which was suggested at the ar- j gument by His Honor the Chief Justice, whether the License was assignable at all, was not mooted at tl e trial, but the two which have been argued, namely, whether the License from the Crown to cut so many tons of pine Timber, would give the Licensee a right to take pine Timber cat by a stranger ; and whether the interest in the License could pass by a parol assignment were urged by the learned Counsel for the De- •, fendant ; and as it was admitted on all hands that they were most important in a general point of view, as they affected the great staple trade of the country, I was glad to reserve them without giving an opinion, and the case went to the Jury on the questions of fact as to the identity of the Place and the Timbet\wh\c\\ they found, and very properly so, in favor of the Plaintiff ; for there could be little or no doubt, that the Timber which Connell the Defendant avowedly got from Walton, was part of the same which had been cut by Price within the limits of the Berth described in Bedell's License. I should remark also that I stated to the Jury, that allowing a parol assignment to be valid, I thought there was quite suffi- cient evidence to presume an assignment in this case; and thiis •eeraed rather conceded by the Defendant's Counsel ; but R ito TEINITY TERM m \i 1- i^J! ilii then, part of the evidence, namely, Bedell's declarations, were distinctly objected to, and received by me also subject to the opinion of the Court j and the entire question is, I think, fairly open for discussion if the case required it. As to the first point reserved ; on a full consideration and review of the au- thorities, I entirely concur with His Honor and my Brothers, that the Licence gave no property in the standing Trees, and would not enure as a grant until the Trees were selected and cat by the Licensee or under his authority ; that the property ia the Pine Timber so cut by Price, was, and still is, for aught that appeared in evidence, vested in the Crown, and consequently neither the Plaintiff nor Bedell, could maintain trover for it, Rgainst the person who has a riglit to the possession, as against Price and those claiming imder him. The case of Thomas vs. Sorrell, from Vaughan, 351, (which has been already cited) puts in very clear terms the nature of the rights which the parties derive under these Licenses. There is a manifest distinction in the form of the Instrument between a License to cut Trees within certain prescribed limits to make a specified quantity of Timber, and a bargain and sale or grant of particular Trees, or all the Trees, on a particular spot of ground — on this point the case of Dewclas & al vs. Kendall & al, in Yelverton, 188, is well worth noting. It would appear indeed, by the cases that a demise of all the trees, though with liberty to cut, would not transfer the property until cut- there must be an actual sale or grant — see 14 Vin. Abr. 83 & 84. Stukely vs. Butler, Hob. 174, 6— also Cheltham vs. Williamson, 4 East. 469.— Still vs. Butler, Cro. Eliz. 434. — Russell vs. Maynard, Cro. Eliz. 819 — Raebban vs. Jessup, 3 Wils. 333 n. Woodson vs. Newton, Str. 777, and Smith vs. Surnam 9 B. & C. 573. As to the several other objections which have been raised, the view which we have taken of the principal question, renders it unnecessary to give an opinion ; but I beg my present si- lence may not, as the case now presents itself, be considered in consequence of any thing which fell from me at Nisi Prius, as agreeing to the position that the present Plaintiff* was cloth- ed with the rights which Bedell derived from the Crown Li- cense. It is well also to observe, that there was nothing ia this case to make it an exception to the general nile respect- ing Tenants in Common, add that any presumption of seve- rance of the tenancy would make against the Plaintiff", as, for anything that appeared, he retained possession of a moiety of the Timber, and his claim went to the whole. Rule Absolute. The Solicitor General for Plaintiff; S. fVetmore and Berton for Defendant. vs. IN THE SIXTH TEAR OF WILLIAM IV. Doe ex dem WILT versus JARDINE. 161 ^ Deed whereby the Beleator released to the Releasee, his Ifeirs and Jissigns, all his right, title, interest and claim to certain Lands, to have and lo hold the same, to him, his Heirs and Jissigns, forever ; the same having been duly executed, proved and registered, pursuant to the Act of Assembly, 86 Oeo. S, c. 3, is a good Conveyance of Lands, within the meaning of the lOth section of the said Act. THIS action of Ejectment was tried before Carter, J. at the Kent Circuit in August, 1835. The Lessor of the Plaintiff es- tablished a prima facie case, under a Grant from the Crown to him of the land in question, bearing date 17th June, 1830. The following deed was given in evidence for the Defendant, and formed part of his title, viz : — " Know all Men by these Presents, that I, John Wilt, of Liverpool, •* in the County of Kent, Yeoman, for and in considerution of the sum " of two hundred pounds of lawful money of New-Brunswick, to m» " in hand paid by Robert Jardine and John Jardine, of thesame place, " Merchants, at or before the sealing and delivery of these presnts, the " receipt whereof is hereby acknowledged, have remised, released and '• quit claimed, and do by these presents remise, release and quit claim " unto the said Robert Jardine and John Jardine, t/ieir Heirs and As- " signs forever, all my right, title, interest, and properly claim in and " to the following demised premises, viz. a certain Lot of Land applied "for by me to Government, situated on the South side of the Ilichi- '* bucto River in the County aforesaid, in the Rapids of the main river " aforesaid, with all and singular the appurtenances thereunto belong- " ing. To have and to hold the same premises, unto the said Robert " Jardine and John Jardine, their Heirs and Assigns, forever. In Wit- " ness whereof, I have hereunto set my hand and seal, this fifteenth " day of October, in the year of our Lord one thousand eight hundred " and thirty. (Signed) " JOHN WILT. [L. S.] '*' Signed, «enled and delivered •" Jn presence of (Signed) " Peter Stubs." " Kent, > Peter Stubs, of Liverpool, in the County aforesaid, Esquire, to-wil. 5 " inaheth oath and saith, that he, this Deponent, was pre- " sent, and did see the within named John Wilt sign, seal and execute " the foregoing Deed freely and voluntarily, for the use and purposes " therein mentioned, and that the name John Wilt, set and subscribed " as the Grantor aforesaid, is of the proper handwriting of the snid " John Wilt, and that the name Peter Stubs, set and subscribed as the " subscribing witness thereto, is of the propsr handwriting of this De- "ponent. (Signed) " PETER STUBS." " Sworn lo at Liverpool aluresaid, " in ilia Coiiniy nfuresnid, this " 27ih day of October, 1830, <' Before (Signed) " Geo. FiCAN, Rag. Deedi, kt" " Registered in Book B. pages 442 aod 443. this twenty-seventh day " of October, 1830, and is number 208 in said Book. (Signed) " GEO. PAGAN, County Reg," I' 1^2 TRINITY TERM J. A. Strcetf for the PlaintiiT, contended, that the deed being merely a release, recjuired some previous right or interest in the Releasee in the Land released, upon which the deed might operate, and no such right or interest having been shewn, the JDeed was inoperative. The learned Judge ruled, that the De?d was suflicient to pass the fee simple in the Land mentioned in it, and under his direction in this respect, a Verdict was found for the Defend- ant. In last Michaelmas Term a rule Nisi, to set aside the Ver- dict and grant a new Trial, was obtained. t/. A. Street, in moving for the rule, took the following points i That no Deed would operate as a Convej'ance of Land in this Province except such as would operate by the Common Law, or under the Statute of Uses and Inrollments in England. That the deed from John Wilt to Robert and John Jardine, under which the Defendant claimed title, would not operate either as a Feoffment at Common Law, or as a Bargain and Sale under the Statute of Uses. 4 Cruise Dig. 48, 49, 107, 1 15.— 1 Cruise Dig. 354.— 1 Shep. Touchst. 165, 222.— 2d do. 113. Cause was shewn in Hilary Term. 4 JE. B. C/iatidler for Defendant. The Deed was not offered as a Release at Common Law. It is a good Feoffment, and, having been recorded under the Act of Assembly, has all the effect of a Feoffment in England, with Livery of Seisin. To constitute a Feoffment at Common Law, or by Statute, no precise words are necessary. By the Common Law, a Grantor might go upon land, and express and declare the estate intended to be conveyed, and under the Statute, it is only necessary that the intention of the parties should be expressed in writing. 4 Bl. Com. 310, 311. 4 Com. Dig. 285. The word give, may be suflicient to con- stitute a Feoffment. 2 Bac. Abr. 602. The Registry under the Act of Assembly is in place and dispenses with the neces- sity of Livery and Seisin. The 10th section of 26 Geo. 3, c. 3, provides, that all Bargains and Sales of Lands, &c. and all Grants and Conveyances whatever, which shall be entered and registered at full length, as required by the same. Act, shall be good, effectual and available, to all intents and purpo- ses, for the passing and transferring such Lands, &c. and the estate and possession thereof, without Livery of Seisin, or other act, deed or ceremony whatsoever. Then the question is, whether this Deed is a good Charter of Feoffment at Common Law. The material circunfistance IN THE SIXTH YEAR OF WILLIAM IV. 163 [ter lice t)ece.ssar)r in such an instrument is, the declavfttion of th« quantity and duration of the estrle. Again — Tlie Deed operates as a Bargain and Sale under (he Statute of Uses, as CDUuectcd with the Act of Assembly. No precise form of words is necessary to constitute a Bar- gain and Sale. 1 Bnc. Abr. 686. Tit. Bargain and Sale. Any words sufficient at Common Law to raise a Use, will en- ure as a Bargain and Sale. Then what words will raise a Use? any, which shew the intention of the parties. 7 Com. Dig. 572-3 Tit. Uses. D. 1. 3dly. The Deed may, with the aid of the Provincial Statute, operate as a Release — tlie Act supplying the place of a Lease. Language cannot be more conclusive than are the words of the Act. — [Carter, J. Is not a previous Estate necessary to sup- port a Release?] It has been held in the West Indies — in Antigua, Saint Vincent and Jamaica — under their Registry Acts, that a recorded Conveyance requires not Livery of Seisin. 2 Bythewood, 222.-3 Bythew. 165.— 7 Bythew. 149. ^ The Solicitor General followed on the same side. The situation of these parties is of a peculiar nature. The party who made this Deed is now attempting to avoid its ef- fect, and turn out of the possession of the Land the persons to whom it was given : it is an attempt on the part of the Les- sor of the Plaintiff' to defeat his own Deed, made for a valuable consideration. Unless, then, a very clear case in point of law- is made out, the Court will not assist him. The question is not within any of the authorities cited on the other side. By the Conmion Law, an entry on the Land and actual Livery of Seisin, were necessary, but these are not necessary here. The Lease for a year was necessary to do away with Livery of Seisin, all which is wholly unnecessary by the pro- visions of the Act of Assembly. The Deed shall enure ac- cording to the uses, intents and purposes therein expressed, is the language of the Province Law: what then, are the uses, intents and purposes of this Deed? There can be no doubt on this point; the Habendum expresses that the Gran- tees shall hold to tliem, their Heirs and Assigns, forever. The intention of the parties being clear, the Deed, by the Act of Assembly, must take effect. The Solicitor General was stopped by the Court, who di- rected the attention of the Counsel on the other side to the Act of Assembly on which they considered the question must tui'n. J. A. Street in support of the Rule. The question then is, whether this Deed is a good Convey- ance under the Act of Assembly, or, in other wordib, is it such 164 TRINITY TERM s «- t m M Ui a Deed as, under the terms of the Common Law, restrained by the Statute of Frauds, would create a Feoffment. The 10th section of the Act enacts, that all Deeds duly recorded, &c. shftll be sufficient without Livery of Seisin ; and comparing this with the Statute of Uses and Inrollments, it is clear that our Act is founded upon those Statutes, the question, there- fore, is resolved wholly into the point above stated. A Deed which will amount to a Bargain and Sale, is a good Feoffment ; but he J there are neither such words as will raise a Use or a Covenant to stand seized. If it contained the words grant, bargain and sell, or any equipollent words, it would be suffi- cient under the Act of Assembly. A Release may enure by way of mitter le droit — enlargement, or extinguishment ; in either of which cases, it is founded on the Privity of Estate be- tween the parties ; here the parties are strangers, without any Privity of Estate or interest in the Release, upon which to found this Release ; therefore, it cannot operate as a Release ; and being without words of Conveyance, or such as will raise a Use or Covenant to stand seized, it cannot operate as a Feoff- ment, and therefore cannot be considered a good Conveyance •within even the extensive meaning of the Act of Assembly. Cur. adv. vtdt. - In this Term the Court delivered their opinions. Chipman, C. J. — Referred to the Deed as set forth above in the statement of the cause, and then proceeded. The learned Judge ruled at the trial that this Deed was suf- ficient to pass the fee simple in the land mentioned in it, and under his direction in this respect, the Verdict was found. A rule for a new trial was obtained on the ground that this Deed was not good as a Release at Common Law, there being no antecedent interest in EM HANNINGTON ver&us M'FADDEN. WM rftfiffl m U. s. The Statute of Usex, £7 H. 8j c. 10, and the Statute oflnrollmenls, 27 H. 8, c. 16, extend to, and are in force within this Province. THIS action of Ejectment was tried before Carter, J. at the Kent Circuit in September last. — On the part of the Plain- tiT and as part of his Title, a Deed Poll by way of Mort- gage of the Locus in quo, from Francis Boucher to the Lessor of the Plaintiff was offered in evidence. This Deed had not been acknowledged, proved or registered pursuant to the Act of Assembly. Boucher derived title by a conveyance from one Jerva, which bore date previous to Boucher's Deed to Hannington, but was acknowledged pursuant to the Act of Assembly on the 28th IVIay, 1835, long subsequent to the date of the Deed from Boucher to Hannington. This Deed was re- ceived in evidence as a registered Deed without other proof. J. A. Street and Weldon, for the Defendant, objected that this Deed from Boucher to Hannington, was insufficient to pass the estate it purported to convey, without Livery of Seisin, and that as to Boucher's title, the date of the acknowledgment must be taken as the date of the Deed, and therefore Bou- cher's title arose subsequent to the conveyance to Hannington. It was answered by E. ,B. Chandler and William Chandler, that the Deed was prima facie sufficient, and could only be defeated by a registered Deed to a subsequent purchaser : and that if it could not take efiect under the Act of Assembly, it might operate under the Statute of Uses ; that Boucher's Deed must be held to have been made at the time it bore date, and the acknowledgment related back to that period. J. A. Street objected, that the Statute of Uses did not ex- tend to this Province, and even if it did, the Statute of InroU- ments must also extend, and by the latter Statute the opera- tion of this Deed would be prevented, it not having been in- rolled. It was ruled by His Honor Judge Carter, that if the Deed depended on the Provincial Laws alone, it was inopera- I' IN THE SIXTH YEAR OF WILLIAM IV. 173 to )U- )n. tert ibe Ind it ?ed nd Ira- in- khe tive, but that under the Statute of Uses which his Honor considered applicable to this Province it might operate, and that such operation was not pi'evented by the want of Inroll- ment, as (iu the opinion of His Honor) the Statute of Inroll- ments was not applicable, and therefore did not extend to this Province. On the part of the Defendant, several Deeds were put in evidence and parol testimony was offered to shew that the land which was described in the earlier conveyances as lot No. 4, was the same which was intended to be conveyed to the Defendant by the last Deed by a different description — this evidence was rejected by His Honor. The Lessor of the Plaintiff obtained a Verdict, and in Michalemas Term, J. A. Street, moved for a rule Nisi, to set the same aside and grant a new trial, on the several points raised at the trial. 1 he Lessor of the Plaintiff claimed title through Jerva and Boucher. The coi veyance to Hannington was a Deed Poll of Bargain and Sale by way of Mortgage, which purported to have been made by Boucher on the ^-ith February, 18 IT. This Deed must stand independent < the Act of Assembly, 26 G. 3 c. 3. By sec. 6 of that Act, ihe manner in which a Deed should be proved, or acknowledged and registered, was directed — by the 10th section of the same Act, it was provi- ded that all Deeds and Conveyances made, executed, proved, or acknowledged, and registered according to the terms of the said Act " shall be good, effectual, and available, to all in- " tents and purposes whatsoever, for the passing and trans- " ferring such lands, tenements, and hereditaments, and the " Estate and possession thereof to the Bargainee and Bar- ** gainees, Grantee or Grantees therein named, according to " the intents, uses, and purposes in such Deeds and Con- " veyances expressed, without Livery of Seisin or any other " Act or Deed, or Form or Ceremony whatever." And by the llth section. Deeds and Conveyances so executed, ac- knowledged, and registered, and copies thereof duly certified, *' shall be allowed in all Courts where such Deeds and Con- *' veyances, or Copies shall be produced, to be as good and " sufficient evidence as any Bargains and Sales In rolled in any " of the Courts of Westminster, and the Copies of the Inroll- ** ments thereof are in any Courts of Great Britain-" The Deed before the Court could not be assisted by the Act of Assembly not having been " proved or acknowledged, and registered." The question was for the first time presented to the Court, whether a Deed under such circumstances, was a food conveyance in this Province without proof of actual jivery of Seisin. The learucd Judge had ruled at Nisi Prius, 174 TRINITY TERM that it was a good conveyance under the Statute of Use$— but that Statute could not be separated from the Statute of InroUments — both were passed in the same year — their operation commenced at the same time — they were in effect incorporated, and formed one Statute, and it was for the Court to determine, if they extended to this Country, or if the machinery of the latter Statute was not in its nature so local as to confine the operation of both to the Mother Country — if it should be held that both were in operation here, then the Deed before the Court not having been inroUed was ineffectual— and again, conveyance by Deed of Bargain and Sale, was a creature of the Statute of Uses, and that Statute as restrained by the Statute of InroUments applied only to Indentures— but it was evident from the terms of the Provincial Act 26, G. 3, c. 3, that the Statutes of Uses and InroUments had been viewed by the Provincial Legislature as inapplicable, and therefore they had appointed a more simple mode of acknow- ledging, or proving and registering Conveyances. No mode of transferring Land could oe good, except that pointed out by the Legislature. If property could be transferred inde- pendently of the Act of Assembly, Feoflment was the only common Law mode, and that must be accompanied by Livery of Seisin. In support of this point the following authorities were cited, Adams on Ejectment, 281. — American Jurist, No. 6, 151. — Prescott vs. Nevers, 5 Mason Eep. 326. — I Shepherd's Touch, 54, 223, 507, 508, Chitty's Notes to Sta- tute of Uses. — 2 Bl. Com. 32T, 336, Attorney General vs* Stewart, 2 Merivale, 163.— Rex v. Vaughan, 'i Burr, 2500. — 1 Atk. 544-, Sugden on I*owers, T, 10. — 4 Com. Dig. 28, 105, 115, 123. A» to the Deed conveying the Locus in quo to' Boucher, that was only proved by the certificate of acknowledgment and registry endorsed thereon — that certificate bore date the 28th May, 1835, long subsequent to the date of the Mortgage Deed from Boucher to Haunington. At what time then was this Deed delivered, at the date of the Deed or of the ac"» knowledgment ? the Instrument was only effectual by its de-» livery, and there was no proof of its delivery at the date — • the acknowledgment was that the Grantor executed the Deed for the purposes therein expressed, and not that he executed it twenty years before the time of the acknowledgment, 4 Cruise Dig. 29.— Com. Dig. Tait. Coke 264, 1 Phil, on Ev. 534>. 1 Starkie's Ev. 332. American Jurist, No. 26, 426. 1 Dallas Rep. 38*. As to the evidence offered by the Defendant which was re- jected, it was tendered to explain an ambiguity in the descrip- IM THE SIXTH YEAR OF WILLIAM IV. 175 3ed Ited jise 14. Lias Ire- }ip- tion of the Land, not to contradict oi* alter the effect of the Deed, and for that purpose was admissible — 1 Phil. £v. 52T, 628, 534.— Peake's Ev. 113.--6 T. R. 671.— 3 Star. Ev. 1018, 21, 24.— 1 Shep. Touch. 247, 76 (n)b. 87.— 1 Barn, and Aid. 247, 699.-1 T. R. 701.— 8 D. & R. 594. Cause was shown in Hilary Term. N. Parker for the Plaintiff. The Statute of Uses and the Statute of Inrollments were distinct and separate Acts of Parliament, and in determining their extension, the former should be viewed without re- ference to the latter, and should it be considered as a general regulation applicable to the Colonies it must be in force here, whatever might be determined as to the Statute of In- rollments. The Statute of Inrollments contained provi- sions which were essentially local ; Deeds were by that Statute required to be entered and inrolled at Westmin- ster ; eould a Deed of Land in this country be so entered and enrolled ? If it were necessai y for a party to plead an In- roUment, he must state the Court in which the Deed was in- rolled. Cro. Jac. 291—1 Saund. 250—2 Saund. 12— could he plead a Deed duly entered and enrolled in the Supreme Court of New-Brunswick? and even if such an Inrollment could be made or pleaded, it would be ineffectual by the ope- ration of the Province Law — it would be held fraudulent as against a subsequent purchaser, unless registered in pursuance of the Act of Asvsembly. In England there was a particular Officer, the Clerk of the Inrollments, but no such officer was known here. The Provincial Statute 26, G. 3 c. 3, shewed by its terms that the Legislature did not contemplate that the Statute of Inrollments could apply or have any operation here, else why take the English Practice as an example for admitting copies as evidence. Assuming that the Statute of Inrollments did not extend to this Province, could the two be separated ? he contended that they could — that the Statute of Uses was such a general regu- lation, as was applicable to the Colonies, that it was com- plete in itselfj and could be, and was effectual without assist- ance from the other Statute — it had been held to extend in the Old Colonies. 4 Kent, Com. 482, 4 Danes Abr. 214. The next question was, if the Deed from Boucher was a suf- ficient conveyance within the Statute of Uses ; it had sufficient words of conveyance to create a Feoflinent at Common Law, and it had been held what was good as a Feoffment at Common Lnw would raise a Use. R 176 TKINITY TERM Another point worthy of consideration arose from the re- lation of the parties, Boucher & Hanninston as Mortgagor and Mortgagee. Boucher was in possession at the time of ma- king the Deed, and the rule of Low was that the Possession of the Mortgagor was the possession otthe Mortgagee — if a time were appointed for the redemption of mortgaged Pre- mises, and it was not expressed that the Mortgagor should re- main in possession, it was tacitly implied. If Boucher had declared subsequent to the Deed that he held as Tenant to Hannington, eras Mortgagor in possession, it would have been sufficiert proof of Livery of Seisin — if then his parol decla- ration would have been sufficient, so solemn an Instrument as a Deed must be good. 1 Powell, 135, 157, 3 Powell, 1034 — Doe vs. Macey, 8 B. & C. 767. — Doe vs. Mason, 3 Camp. 7, and could only be defeated by a conveyance to a bona fide purchaser, for a valuable consideration duly registered accord- ing to the terms of the Act of Assembly. The Deed from Jerva to Boucher when recorded related to the period of its date, it was acknowledged to have been executed for the pur- poses therein mentioned; Boucher moreover was in possession at the time of making the Mortgage Deed to Hannington. E. B. Chandler, followed on the same side. If the Sta- tute of InroUments ever extended to the Colonies it w^as vir- tually repealed by the Act of Assembly, 26 G. 3, c. 3. A Deed of Land in this Province inroUed at Fredericton or Westminster would be avoided by a Deed duly registered, 1 Bac. Abr. Tit. Bargain and Sale, E. The Act of Assem- bly did away with the Statute of InroUments, and itself only related to subsequent purchasers for valuable consideration. As to the admission of parol evidence contended for by the Counsel for the Defendant, ifthe position could be main- tained, the protection afforded by the Registry Act, would be at an end. When parol evidence had been admitted, the Deed had been consistent with the evidence when given. Rose. Dig. 11. 5. T. R. 564, 13 Star. Ev. 1025—1028. J. A. Street, in support of the Rule. The Statute of Uses as contended for on the other side did not exist, and never had existed in England. The Statute Law only applied to Colo- nies as part of the Common Law ; the two statutes were con- temporaneous, and if Colonists brought with them the provisi- ons of one it could only be as restrained or affected by the other, and unless both were applicable, neither could apply — the Sta- tute of Uses so far as related to bargains and sales of freehold was in effect repealed by the Statute of InroUments. The question whether a man could dispute his own Deed did not arise here. IN THE SIXTH YEAR OF WILLIAM IV. 177 It could not be contended that a Mortgagee could stand on a better footing with respect to the Deed than if the Instru- ment had been an absolute conveyance. [Chipman, C.J. — This is not ejectment between Mortgagor and Mortgagee.] — The Counsel was stopped on this point. As to the Deed from Jerva to Boucher which was recorded the day previous to the Demise in this cause. [Chipman, C. J. — The 10th section of the Act of Assembly will help this ; the date is to be taken as the time of delivery, unless the contrary be shewn.] In this Term the Court delivered their opinions. Chipman, C. J. The first question which arises in this case is on the opera- tion and effect of an unregistered Deed produced in evidence, and proved by a Witness on the part of the Plaintiff. The Deed is a Deed Poll in the following terms : — " Know all Men by these Presents, that I, Francis Boucher, of " Bucktush, in the County of Westmorland, and Province of New- *• Brunswick, (Farmer,) for and in consideration of the sum of Fifty " Pounds of lawful monev of the said Province, received to my full " satisfaction of William Hannington, Junior, of Shediac in the Pro- " vince of New-Brunswick, (Trader,) the receipt whereof 1 do hereby " acknowledge, have Granted, Bargained, and Sold, and by these Pre- " sents do Give, Grant, Bargain, Sell, Convey, and Confirm unto him " the said William Hannington, his Heirs an^ Assigns, two certain " Lots or Parcels of Land, situate, lying and being on the North side " of Bucktush River, containing in the whole one hundred and fifty " acres, be the same more or less, as laid down in th^ Grunt, bounded " on the East by lands in the possession of Charles Cormier, and on " the West by lands in the possession of Benjamin Girouard, (the said " lots being now in the possession of the aforesaid Francis Boucher.) " To have and to hold the said lots or parcels of Land, together with " all the Buildings, Improvements, and Appurtenances thereunto be- " longing, unto the said William Hannington, his Heirs and Assigns, " for ever. Provided, nevertheless, that if the said Francis Boucher " shall pay or cause to be paid to the said William Hannington, his " Heirs or Assigns, one certain Note of Hand for Fifty Pounds, bear- " ing date the twenty- fourth day of February, one thousand eight " hundred and seventeen, with lawful Interest thereon, and that on or " before the twenty-fourth day of February, that will be in the year " of our Lord one thousand eight hundred and nineteen ; then the " within Deed, being given for ihe security for the payment of the " within named sum, to be void ; otherwise to remain in full force and " virtue. In Witness whereof, I have horeunto set my Hand and " Seal, this twenty-fourth diiy of February, one thousand eight hundred " and seventvea, and in the filv -seventh year of His Maji-sty's Reign. his "FRANCIS BOUCHER, X " Sealed, Signed, and Delivered in picacnco of x mark. " William Hannikgtox, Sra. fits " T.iNNis Law Collet, X war A." } 178 TRINITY TERM The learned Judge at the trial ruled that this Deed, although not acknowledged or proved and registered according to the provisions of the Provincial Registry Acts, was sufhcient to pass the Estate which it purported to convey, liable, however, to be defeated by a registered Deed to a subsequent purchaser of the same Land for valuable consideration. The opinion of the learned Judge upon this point was objected to on the part of the Defendant, and formed the principal ground upon which the rule Nisi for a new trial was obtained. This rule for a new trial has been elaborately and ably argued by the learned Counsel on both sides, and presents, for the first time, to my know- ledge, within this Province, a very important question relating to me conveying of Lands. On the one hand, it was contend- ed on the part of the Defendant, that the Deed which I have recited, not being accompanied by Livery of Seisin, is not suf- ficient to pass a Freehold at Common Law, and that allowing it to be sufficient for this purpose by the operation of the Sta- tute of Uses, (27 H. 8, ch. 10,) still, if the Statute of Uses is held to extend to this Province, the Statute of Inrollments (27 H. 8, ch. 16.) must be held to extend also; and this latter Statute would prevent any Inheritance or Freehold from passing under this Deed, it being a Bargain and Sale and not indented and inrolled according to the provisions of the Sta- tute. On the other hand, it was contended on the part of the Plaintiff, that the Statute of Uses did certainly extend to this Province, and the Deed was therefore sufRcient by the opera- tion of this Statute to pass the Estate, which it purported to convey, and that the Statute of Inrolments was not in force in this Province, and tbe Deed therefore, stood unaffected by this latter Statute. It was further contended on the part of the Plaintiff, that if the Statute of Inrollments had ever extended to this Pro- vince, it was virtually repealed by the Provincial Registry Act. The question, what acts of the Parliament of the mother Country shall be held to extend to a Colony is undoubtedly one of the most grave questions which can occupy the atten- tion of a Colonial Judicature, and may be in many cases one of considerable perplexity. The Rule laid down by Black- stone (1st Com. 107) is that " Colonists carry with them on- " ly so much of the English Law as is applicable to their own " situatioii, and the condition of an English Colony ; such for ** instance as the general rules of Inheritance ; and of protec- *' tion from personal injuries." The same doctrine in sub- stance is maintained by Lord Mansfield, (Rex vs. Vaughan 4 Burr : 2500— Campbell vs. Hall, Lofft. 710,— 2d Howell, State Trials 289.) In the case of the Attorney General vs. IN THE SIXTH YEAR OF WILLIAM IV. 179 Stewart 9 Mer. 143, in which the question was, whether the Statute of Mortmain (9th Geo. II. ch. 36,) extended to the Island of Grenada, Sir William Grant, the Master of the Rolls, also adopts substantially the same Rule, and makes the determination of the point to depend upon this consideration, " whether it be a law of local policy, adapted solely to the ** Country in which it was made, or a general regulation of " property equally applicable to any country in which it is " by the Rules ot English Law that property is governed." He comes to the conclusion that the Mortmain Act is quite inapplicable to Grenada or any other Colony, because *' in " its causes, its objects, its provisions, its qualifications, and " its exceptions, it is a law wholly Englisn, calculated for " purposes of local policy, complicated with local establish- " ments, and incapable without great incongruity in the effect, " of being transferred as it stands into the code of any other *' country." The two Statutes now under consideration, the Statute of Uses and the Statute of Inrollments, having been passed in the Reign of Henry the Eighth, long before the planting of any of the American Colonies, no question arises upon the time of their being passed, in reference to the period of any Colonial Settlement ; and the only matter for consideration, with respect to each of them will be, whether it be applica- ble to the Colonies, or, in the words of Sir William Grant, whether it be " a law of local policy" adapted solely to the particular circumstances and condition of England, or whe- ther it be "a general regulation of property equally applica- " ble to any country in which it is by the Rules of English " Law that property is governed." With respect to the Sta^ tute of Uses, by the operation of which the person who has the Use, that is, is entitled to the profits and benefit of land, is held to be in the possession of the land itself^ the provisi- ons of it are so mingled with the whole body of the English Law of Real Property, that no doubt can exist as to its ap- plicability in every country, where that law forms the basis of jurisprudence. Lord Bacon describes it as " the Statute which of all others hath the greatest power and operation over the heritages of the Realm ;" and it was, very generally, if not universally considered to have been in force in the old Ameri- can Colonies, (4 Kent's Com. 1st Ed. 283, 452, 477, 482, 1st Dane's Abr. 9th do. 362,) I cannot entertain a shadow of doubt that the Statute of Uses is in force iu this Province. The remaining question is whether this Statute is so in force, without its concomitant passed in the same Session of Parliament, the Statute of Inrollments. In order to decide 180 TRINITY TERM this question, wc must examine the Statute of Inrollmentt for the purpose of ascertaining whether this be a general Regula- tion of property, appHcnble, equally wit!i the Statute of Uses, to any Country where the Law of England prevails. Thi;< Statute provides, " that no Manors, Lands, Tenements, or " other Hereditaments shall pass, alter or change from one to " another, whereby any Estate of Inheritance or Freehold " shall be made or take eifect in any person or persons, or any " use thereof to be made, by reason onlj/ of any Bargain and *' Sale thereof, except the same bargain and sale shall be *' made by writing, indented, sealed and inrolled in one of the *• King's Courts of Record at IVestmitister, or else within the " same County or Counties where the same Manors, 8cc. so " bargained and sold lie or be, before the Ctislos Rotulorum ** s nd two Justices of the Peace, and the Clerk of the Peace of •* the same County or Counties, or two of them at the least, of " which the Clerk of the Peace to be one, &c. &c." Mr. Hargrave in his notes upon Coke Littleton, (Coke Litt. 48 a n. 3) explains the objects of the Statute of Inrol- ments in the following terms : "Those who framed the Statute *' of Uses evidently foresaw, that it would render Livery un- ** necessary to the passing of a ' Freehold,' and that a Free- ** hold of such things as do not lye in Grant, would become *' transferable by Parol only, without any solemnity whatever. " To prevent the inconveniences that might arise from a mode *' of conveyance so uncertain in the proof, and so liable to " misconstruction and abuse, it was enacted in the same Ses- ♦* sion of Parliament, that an Estate of Freehold, should not *' pass by Bargain and Sale only, unless it was by Indenture « inrolled — see 27 H. VIIL c. 16. The objects of these Pro- *' visions evidently were — first, to force the contracting parties ** to ascertain the terms of the convei/arice, by reducing it into ** writing ,- secondly, to make the proof of it easy^ by requiring " their Seals to it^ and consequently the presence of a witness ; " and lastly, to prevent the Frauds (f secret conveyances, by sub- " stituting the more effectual notoriety of Inrolment, for the " ?nore ancient one of Livery." These three objects of this Statute, namely, the ascertainment of the intent of a con- veyance by the reduction of it to writing, the facilitating the proof of it, and the preventing of Frauds by the notoriety of Inrollment, are evidently applicable to any country, where the Statute of Uses and the English Law of Real Property are in force. The only difficulty in the way of extending this Statute to a Colony, arises from the designation of the places in which the Inrolment is required to be made ; and if there should be no IN THE SIXTH YEAR OF WILLIAM IV. 181 IS )f ie in la lo establishment in a Colony corresponding with those in En- gland, designated in the Act for making the Inrolment, I a- gree that it would not be practicable to transfer the operation of this Act to such , Colony. The Act requires the InroU- inent to be made " in one of the King's Courts of Record at Westminster," or else within the County where the Lands lie " before the Custos Rotuloruni, and two Justices of the ** Peace or two of them." Now as this Province is divided into Counties in like manner with EngLmd, and as in each County there is a Custos Rotulorum and a Clerk of the Peace, and Justices of the Peace, also with like official powers as in England, it is quite practicable to carry the Statute in- to effect, so far as respects Inrollments in the Counties. With regard to Inrollment in the King's Courts of Record at Westminster, Lord Coke's comment updn this part of the Statute is as follows, (2d Inst. 674.) " I?i any of the King^s " Courts of Record at Westminster^ that is, in the King's " Bench, The Chancery, The Common Pleas, and the Ex- " chequer-^and though the words be, " at Westminster," for " that at the time of the making of this Act, these Courts ** were there ; yet if these be adjourned into another place, the " Inrolment may be in any of these Courts, for the Inrol- " ment is confined to the Courts wheresoever they he holden'* The Supreme Court in this Province has by the express terms of the Commissions to the Judges, all the powers of the three Superior Courts of Common Law in Westminster Hall ; and thtre is also in the Province a Court of Chancery with juris- diction and powers similar to those of that Court in England. We have therefore within the Province all the local establish- ments, constructed upon the plan of English Institutions, which are necessary for carrying the Statute into effect. The practice of Inrollment moreover, is not one which ori- ginated with the Statute of Inrollments. It is required in the Statute, not as a new proceeding, then for the first time established, but as one of familiar occurrence, which the Sta- tute makes imperative with regard to Deeds of a certain des- cription, namely. Bargains and Sales of Estates of Inheri- tance and Freehold. In 14th, Vin. Abr. 443, tit. Inrolment, citing 2d Lilly's Prac. Reg. 67, a definition is given of the term, and " Inrolment of a Deed" is stated to be " theenter- *' ing of it fairly upon the Records of one of the King's *• Courts of Record at Westminster^ or at the Qiiarter Sessions " of the Peace." So that Inrollment of a Deed, ex vi terminiy " independently of the Statute, imports an entry of the Deed upon the Records of the Courts named in the Statute ; this practice of Inrollment being evidently an incident to these I": m %\'' •b, ^, & ^J^ ^.^v^ IMAGE EVALUATION TEST TARGET (MT-3) .V f/j 1.0 ^i- I I.I 1^ 1^ lAO IL25 ynii.4 2.5 2.2 2£ 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 7.x 1812 TRINITY TERM m Courts at Common Law — another circumstance which strong* ly marks, that the inrolling of Deeds is a proceeding at Com^ mon Law, entirely regulated by the Courts themselves, and not originating Ttrith or derived from this St^itute, is, that the Statute contains no provision for Deeds being acknowledged before they are inroUed ; and yet it is laid down in Coke, Litt. 235, 6, that no Deed can be inrolled unless duly and lawfully acknowledged. And in Lilly's Practical Register, as cited in Jacob's Law Dictionary, Title, " InroUment," it is stated, that ** every Deed before it is inrolled, is to be ac- •* knowledged to be the Deed of the Party before a Master of *' the Court of Chancery, or a Judge of the Court wherein •* inrolled, which is the Officer's Warrant for in-rolling the " same." And in 1 Salk. '389, there is a general rule of the Court of King's Bench " Tha^, all Deeds shall be acknow- " ledged on the plea side in this Court and not on the Crow:^ " side ; and that the acknowledgment shall be in open Court." It appears from the case of Worseley vs. Filisker,. 2d. Rolles, Rep. 119, cited 14th Yin. Abr. 443, that the InrolN ment Office in the Court of Chancery, was not erected until the 16th Eliz. many years after the passing of the Statute of Inrolments — hence it follows, that the existence of a special office in the Courts for the purpose of inrolment is not a ne- cessary preliminary to the operation of the Statute. The business of Inrolment being then an incident at Com- mon Law to the Courts mentioned in the Statute of Inrol- ments, and a matter regulated by the Courts themselves ; when Courts are established in a Colony with powers and inci- dents at Common Law identical with the powers and inci- dents of the Courts in England mentioned in the Statute, all difficulty in the application of the Statute for the want of local establishments to carry it into effect, vanishes. The extension of Statutes to this Province which are in terms confined to the Courts of the Mother Country, is not by any means without precedent, as is obvious from two very familiar instances, namely, 1st. the Stat. 4lh Anne, c. 16, sec. 20, authorizing the assignment of Bail Bonds, which is ex- pressed to apply to persons arrested by any process " issuing ** out of any of His Majesty's Courts of Record at West- " minster"— and 2dly, the Stat. 14th Geo. II. c. 17, autho- rizing Judgments as in case of a non suit ; which in like manner is expressed to apply to suits in the King's Courts of Record at Westminster, the Court of Great Sessions in Wales, and the Courts of the Counties Palatine — and yet each of these Statutes is daily acted upon in this Province, and must be considered as fully incorporated with our Provincial code. rN THE SIXTH YEAR OF WILLIAM IV. 183 t' Upon full consideration of this point, in the aspect in which I have now presented it, I have come to the conclusion that the Statute of Inrolments being a cotemporaneous modi- fication of the Statute of Uses, equally applicable in principle with the Statute of Uses to anjr country in which the Law of England is in force, and there being in this Province local Courts with powers and incidents at Common Law for carry- ing the Statute of Inrolments into elffect, the Statute of Inrol- ments equally with the Statute of Uses extends to, and is in force witnin this Province. As to the fact of the Statute of Inrollments having been considered to be in force i« the old Colonies, Chancellor Kent in that part of his commentaries in which he treats of con- veyances, expresses himself as follows : — " Conveyance by Lease and Release was the mode univer- " sally in practice in New- York until the year 1788, — the re- " vision of the Statute Law of New York in 1788, which rc- " enacted all the English Statute Laws deemed proper and ap- " plicable, and which repealed the British Statutes in force in " New- York while it was a colony, removed all apprehension " of the necessity of Inrollment of Deeds of Bargain and Sale, " and left that short plain and excellent mode of conveyance to " its free operation : the consequence was that the conveyance " by Lease and Release, which required two Deeds or Instru- " ments instead of one, fell ir- mediately into total disuse, and " will never be revived." (4 Aent's Com. 1st edit. 452.) From this passage, it is evident, that the Statute of Inrol- ments was at least apprehended to have been in force in the Province of New- York, and that this apprehension was so Sirong, in its practical effect, as to cause the universal preva- lence in that Province, of the conveyance by Lease and Re- lease. There is a case I understand in one of the Massachu- setts Reports, in which it was assumed that the Statute of In- rollments had never been in force in that Province. This case will be remarked upon by another member of the Court. It was argued on the part of the Plaintiff that even if the Sta- tute of Inrolments was in force at the time of the erection of the Province, it was repealed by the Provincial Registry Act, 26th Creo. III. c. 3. the provisions of which Act, it was con- tended were inconsistent with the Statute of Inrolments. I do not perceive any inconsistency in the two Acts, the provisions of which very well stand together. The Provincial Registry Act, (S. 1.) provides that Deeds may be registered, and that unregistered Deeds shall be adjudged fraudulent and void a- gainst subsequent Purchasers and Mortgagees for valuable con- sideration, wnose Deeds shall be registered. And the 10th 184 TRINITY TERM section of the same Act provides " that all conveyances made in "writing, and signed, sealed, and delivered, ackncwledged, and " registered, according to the provisions of that Act shall be " sufficient to pass Estates in Lands, according to the intent of " the Deed without Livery of Seisin or any other Act or cere- *' mony whatever," As compared with the Statute of InroU- ments, the effect of he first section of the Provincial Registry Act, would undoubtedly be that a Bargain and Sale although in- rolled according to the provisions of the Statute of Inrolments, would not, any more than a Deed of Feoffment at common law, accompanied by Livery of Seisin, be good against a re- gistered Deed to a subsequent purchaser lor valuable consi- deration, unless registered according to the provisions of the Registry Act. But this section leaves untouched the provi- sion of the Statute of Inrolments, that no Estate of Inheritance or Freehold shall pass at all from the Bargainor to the Bar- gainee, unless the requisites of that Statute are complied with. The Provincial Statute in this respect is similar in its enact- ment to the English Registry Acts ; I refer particularly to the Stat. 8 Geo, II. c. 6. for establishing a Registry in the North Riding of York, from which Statute it would seem that many of the clauses of the Provincial Act were copied. Yet so far from this Statute being considered as repealing the Statute of Inrollments with regard to the North Riding of York, the latter Statute is expressly recited in the twenty-first section of it, which makes Bargains and Sales registered ac- cording to its provisions, of equal validity with Bargains and Sales inroUed according to the Statute of Inrollments — so the tenth section of the Provincial Registry Act, the words of which are affirmative, and the effect of it enlarging, undoubt- edly makes a Bargain and Sale, in respect to which the pro- visions of that Act have been complied with, sufficient to pass an Estate of Freehold or Inheritance, although it be not in- rolled according to the Statute of Inrollments ; but it leaves untouched all Bargains and Sales with regard to which its own provisions have not been complied with. Such being the operation of the Provincial Registry Act, if the Statute of In- rollments be not in force, there is no Law in this Province, even at this day, to prevent an Estate of Freehold or Inheri- tance from passing under the Statute of Uses, b^ writing alone without Seal, as the Statute of Frauds requires a Writing only, not a Dec -1 under Seal. It was further atgued on the part of the Plaintiff, that the relation of Mortgagor and Mortgagee, having been establish- ed by the Deed m question between the Parties to it, it is not competent for any person holding under the Mortgagor, as the IN THE SIXTH YEAR OF WILLIAM IV. 185 r r |e u )t Defendant does, lo invalidate it. Upon this ground of argu- ment it need only be remarked, that if the Deed be not sufficient to pass the Estate which it purports to convey, the relation of Mortgagor and Mortgagee was never established. Upon the whole I am of opinion that the Deed upon which this discussion has arisen, not having been acknowledged or proved, and registered according to the provisions of the Pro- vincial Registr\ Act, and being a Bargain and Sale not indent- ed and inroUed according to the Statute of Inrollments, is not sufflcient to pass the Estate of Inheritance whit h it purports to convey, and therefore upon this ground, if the point had been reserved at the trial with leave to move to enter a son suit, a nonsuit must have been entered ; but this not having been done, a new Trial must be ordered. There was another ground upon which the motion for a new Trial was argued, and that was, the improper rejection of evidence by the learned Judge who tried the cause. It is un- necessary to say more on this point, than that I am of opinion that the evidence was properly rejected. BoTSVORD, J. — I entirely agree in the opinion expressed by His Honor the Chief Justice. Carter, J. — The material question on< which this case de- pends, is the validity of the Deed of Mortgage from F. Boucher to W. Hannington, Jun. because if it be determined that this Deed is invalid, the Lessee of the PlaintiiF has failed to make out such a legal title, as will enable him to recover in an action of Ejectment. The view which I took of this pdint at the trial certainly was this : — that the Deed was inoperative if it depended on the Provincial Laws alone, but that it might operate under the Sta^ute of Jses, which I considered applicable to this Pro- vince, and that such operation was not prevented by the want of Inrollment, as I considered, the Statute of Inrollments did not extend to this Province. On full consideration of the case and the arguments which have been adduced on both sides, I think that on the last point, viz. as to the extension of the Sta- tute of Inrollments to this Province, the opinion I expressed at the trial was wrong. I confess I had very great doubts on this point, and have felt much difficulty in coming to a decision upon it; the point being one perfectly new, and on which there is no direct authority, and hardly any decision which may be an authority by analogy. After the elaborate Judgment which has already been given, I do not think it necessary to go at any great length into all the bearings of this question, but shall state, very briefly, the reasons which bring me to the con- 186 TRINITY TERM elusions at which I have arrived. I take it that of the Statute Law of England which existed at the original settlement of this Province, so much is in force here as is adapted to the circum- stances of the Province, and is not local in its nature and pro- visions. On this principle there can be no doubt that the Sta- tute of Usesi must be in force here ; and there seems to be au- thority in the passage cited from Dane's Abi'. to shew that in Colonies similarly circumstanced, this Statute was considered in force. How, then, does this principle affect the Statute of Inrollments ? It cannot be said that the policy of this Statute is local, that policy being to give publicity to Deeds of Bar- gain and Sale of freehold property, which, but for this Statute, might have been, under the Statute of Uses, of a private na- ture. This object is one which is equally applicable to this Province. Nor is this object fully effected by the Registry Acts, so as to render the Statute of Inrollments unnecessary, for besides this consideration, that if the Statute of Inrollment formed part of the English Law which extended to the Pro- vince at its first settlement, it would still operate unless re- pealed by some Provincial enactment, the Registry Acts do not fully effect this object — because a Deed of Bargain and Sale, so far as it depends on them, is good against all but sub- sequent purchasers for valuable consideration without any re- gistry or inrolment ; whereas, by the Statute of Inrollments it is absolutely void if not inrolled within six months afler the date. Wherever, therefore, the Statute of Uses will extend, it appears to me that the policy of the Statute of Inrollments will also extend. Is there, then, any thing in the provisions of that Statute which shews that it is local? On first consi- dering this, it certainly appeared to me that the provision that the inrolment of Deeds of Bargain and Sale should be made in one of the King's Courts of Record at Westminster, shewed that the Statute would only apply to that country over which those Courts had jurisdiction. But on consideration I think that this provision is not so purely local as the words, strictly taken, would imply ; because, if it were so, an Inrol- ment in the Court of King's Bench when sitting in any other part of England than Westminster, would not be good. Yet we have Lord Coke's authority in the 2d Inst. 673, 674, that such Inrollment would be good. The meaning of the words seems to be, that the IiroUment must be in one of the King's Courts of Record, viz. the King's Bench, Common Pleas, or Exchequer. For this Province, this Court is undoubtedly the King'& Court of Record, combining the powers and authority of the King's Bench, Common Pleas, and Exchequer, and there- fore an Inrollment of a Deed of Bargain and Sale in this Court £ V t t o U i 1 n a S( St tr IN THE IIXTH YEAR OF WILLIAlf IV. 187 would, I think, meet the provisions of die Statute of Inroll- ments as applicable tp this Province. For want of such In* roUment, 1 am of (pinion the Deed in question is void, and therefore the Plaintiff failed in making out a legal title, aqd on this ground I think there should be a new trial. On the other question, with respect to the rejection of the parol evidence tendered on the part of the Defendant to shew that the land intended to be conveyed by the Deed from Casey and Jerva to the Defendant, was the land described in the for- mer Deed as Lot No, 4, I have seen no reason to alter the opinion I expressed at the trial. P> iKER, J. — I entirely concur in the Judgment which has been pronounced on the principal point reserved in this case, namely, whether a legal Estate in fee of lands in this Province will be considered to have passed by Deed of Bargain and Sale, on the mere proof of the signing, sealing, and delivery by the Bargainor. It is important as involving the question of the extension and adaptation of the English Statute Law, in deciding which we have no very definite rule to guide us. That Colonists take with them the Statute Law to a certain extent (as well as the Common Law) is clear ; and when we consider the state of the Common Law which recognized no valid transfer of the legal Estate in land, of freehold or inheri- tance, beside that by Feoffment with livery of seisin ; the period at which the Statute of Uses and Wills, 27 H. 8. c. 10, was passed and the general nature of its provisions which, intend- ing to carry into effect at Icto what Courts of equiti/ had alrea- dy enforced, were certainly as applicable to the condition of new Colonies, as to that of the mother country, I caunot doubt of the extension of that Statute to this Pxovince. If additional reasons were required to confirm this opinion they would be found in the general understanding of the Legisla- tures, and Courts in the former North American Colonies, and of the most distinguished American Jurists of the present day. If then the Statute of Uses extends, it must be admitted that a Statute passed in pari materia during the same Session of Parliament must extend also, unless its provisions be wholly local or inapplicable to our Colonial situation, or un- less there be something in that or some other English Statute limiting its operation to the realm of England ; and as it re- mains in force there, it must also be in force here, unless actu- ally or virtually repealed by some Act of the Provincial As- sembly. That tlie intention of the Statute of Inrollments (notwith- standing the manner in which it has been evaded by the con- trivance of lease and release) was to control the operation of 188 TRINITY TERM the Statute of Uses in the transfer of real Estate, we kno«r from the concurring testimony of the best v/riters near the time, and since. It is difficult to select from among them, I will quote Lord Bacon's observation, and that of a late Judge. Lord Bacon in his Elements, 2d Tract, p. 66, after com- menting on the Statute of Uses, proceeds as follows: — " But the Parliament that made that Statute did foresee ** that it would be mischievous that men's lands should so sud- ** denly upon the payment of a little money be conveyed from " them, peradventure in an Ale-house or a Tavern upon *' strainabie advant^es, did therefore gravely provide another ** Act in the same Parliament, that the land upon payment of " this money should not pass away, except there were a wri- " ting indented made between the said two parties, and the ** said writing also within six months inroUed in some of the " Courts at Westminster, or in the Shire Rolls in the Shire " where the land lieth ; unless it be in Cities or Corporate " Towns where they did use to enroll Deeds, and there the Sta- " tute extendeth not." \ Mr. Baron Graham, in 3d Price, 507, says, — " The his- « tory on InroUments is well known. — The preamble of the " 27 H. 8. c. 10, details the inconveniences which arose from " the effects of the clandestine nature of the doctrine of Uses, " and it was intended that those inconveniences should be ob- " viated by the Act requiring deeds of bargain and sale to be " inrolled in some Court of Record, thereby supplying that no- *^ toriety from the absence of which, in such modes of con- " veyance, so many mischiefs were said to have arisen." That we have not the same authority for the extension of this Statute as there is for the other, is not surprising when we consider the fact that Registration, of Deeds was provided for among the earliest acts of all the Colonies. There was an ordinance of the Governor and Council in Nova Scotia passed in 1T52, for this purpose, ratified and confirmed by the Gene- ral Assembly in their first Session, 32 Geo. 2d. c. 2, (when that which is now New-Brunswick formed part of Nova-Sco- tia ;) and a registry is provided for those who choose to take advantage of it, by one of our first Acts after this Province was erected ; and when the facility with which registry may be made, without any limitation as to time, under our Registry Acts and the priority which they clearly give to registered con- veyances are considered, it is less to be wondered at t^at the present question should not have arisen before, than that it should now be agitated. I quite agree that these Acts were passed for the regulation ff registered Deeds, leaving unregistered conveyances on the IN THE SIXTH YEAR OF WILLIAM IV. 189 same footing as they were before, and no farther interfering 'with them, than was requisite to give that eflect to the regis- try which the Legislature contemplated ; and that although re- gistry, if complied with, would supercede the necessity of enroll- ment, it no more operated as a repeal of the Statute if In- roUments here, than the invention of Lease and Release did in England. The assertion that conveyance by bargain and sale inroUed is out of use in England is not quite correct, as may be seen by many instances in the books at different peri- ods. The establishment of Registry Offices in some of the Counties in England did not repeal the Statute of Inrolmcnts as to them — the registry of bargains and sales, is by the Act made as effectual and available as InroUment, but the Dsed may still be inroUed, and must be registered or inroUed. The fact stated by Mr. Chancellor Kent in the 4th vol. of his commentaries p. 482, already referred to by His Honor the Chief Justice, is very strong to evince the opinion of the profession in New-York ; for there appears no other sufficient reason for the general use of the double conveyance to pass the freehold or fee there and elsewhere, than the restraining effect of the Statute of Inrollments upon the one simple Deed, I should incline to think that while using the terms " appre- hension of the necessity of InroUment, &c." Mr. Chancellor Kent, meant to include registered and not merely unregistered Bargains and Sales, as Registration seems to have been almost universally practised in New- York. Until a short time since I had been under the impression that in the neighbouring Co- lony (now State) of Massachusetts, the question of Inrolunent bad not arisen in consequence of one of their early Acts, in the reign of William 3d, having provided a simple mode of conveyance ; but I find by a case reported in 5 Tyng's Mass. Rep. 24, that of Marshall vs. Fisk, which occurred in the Su- preme Court of that State in 1809, that the Statute of In- rollments has been held not to extend to that country ; and that the delivery of a Deed of Bargain and Sale was sufficient to convey real Estate until the Colonial Ordinance of 1641. Their Registry Act of 1783, I perceive, provides " that no *' conveyance of a freehold in, or a lease for a longer term than " seven years of any land shall be good and effectual in the " law to hold such land against any person, but the Grantor " and his Heirs, unless the Deed of conveyance be acknow- " ledged and registered in the County Records." It is not stated in that case, nor am I aware at what particular period of their history, in what manner or on what grounds it was de- termined that the Statute of Inrollments did not extend to Massachusetts ; but without questioning the propriety of their I9D TRINITY TERM deciiioiH I think a su£Rcient distinction may be found between the Institutions of the old Colony and Charter Government of Massachusetts, and oar own, that would render a Statute wholly inapplicable there, which might nevertheless be very suitable to as, for the Rule is not so general that we must in order to give effect to a Statute here, determine that it is ap- plicable to the state and condition of all Colonists. Statutes may extend, bmt yet be without any operation until there aie Institutions in a Colony to which tneir provisions are applica- ble. The very origin and constitution of the Superior Court in Massachusetts gave it probably a different character from that of this Province, and may have formed the ground of their decision* If I recollect rightly. Governor Hutchinson says, the Writs in their early days, did not run in the King's name. The registry acts of that C<^ony would appear to nave fol- lowed the decision, and were perhaps consequent upon it, (though of this I can speak with no certainty,) but I will for a moment consider how tar our Registry Act is reconcileable to the notion, that the Statute of Uses extends without the Statute of Inrollments. By the former of the»e Statutes the Land would pass without any Deed or even writing. A wri- ting however, was rendered necessary by the Statute of Frauds, and both in Nova-Scotia and New-Brunswick, the provisions of this Statute were introduced among the earliest of the Colonial Acts, so that the transfer without writing may be considered as not having existed ; but still we have the pos- session transferred to the use without Deed ; but supposing even a Deed to be necessary, no further Act would be requi- site. Then comes the Registry Act, 86 Geo. 5, c. 8, which by an express section, the 10th, provides, " that all bargains " and sales of any lands, tenements, and^ hereditaments by « Deed indented or Deed Pole, and all grants and convey- << ances whatsoever, made by writing, and duly signed, sealed, " and delivered, and acknowledged by the Grantor or Oran^ *• torSySfC. 'which shall he entered and registered at full length, " hy tha^ Begister in the Ptd)lic Office, Sfc" shall be good, ef- *< fectuAl and available to all intents and purposes whatsoever, ** for the passing and transforring such lands, &c. and the ** Estate and possession thereof to the bargainee and bar- " gainees, grantee and grantees therein named, according to " the intents and uses, and purposes, in- such Deeds, and con- ** veyances expressed without livery of seisin, or any other act " or Deed, or form or ceremony whatever." This section being confined to Deeds achnovoledged hy the grantor or bar- gainor, a fonder Legislative provision was made (52 Geo. 3, c. 20, sec. 2,) giving the same effect as above to all deeds, grants. IN THE SIXTH TEAR OF WILLIAM IV. 191 and Conveynncesy duly acknomkdged or proved, and duly regis- fered; which Legislotive protisions were unnecessary, indeed almost absurd, iff as now contended by the Plaintiff's Counsel, the legal seisin would pan by the deed alone ; and unregis- tered transfers are governed only by the Statutes of Uses and Frauds. I think no one can carefully read the two sections I have quoted) without being of opinion the Ledslature consi- dered the Law as it stood, without such provision would re- strcin Lands from passing according to the intent of parties by mere Deeds of Bargain and Sale, or simple grants and con- veyances, though duly registered according to the Act^ and there- fore an express clause was necessary to give proper efibct to the registry. For, without this, conveyances would probably have been made here as in the old State of New- York, by Lease and Release:; thus subjecting the parties to the unne- cessary trouble and expence of this double form, for the very same purpose which originated it in England, viz. evading the Statute of Inrollments* There iS) I should observe, a great difference between the wording of our Act, and that of tho Massachusetts Act of 1788 ; the words of our Act are words of extension, those of the other, words of restriction ; well suited to the different state of the law produced by the reception or rejection of the Statute of Inrollments. However it is said (and the position was first taken by the Counsel for the Defendant as a ground for the Statute of Uses not extending,) that as the Statute 27 H. 8. c. 16, provides only for enrc^ment in the Courts at Westminster, or by cer- tain Officers in the several Counties ; no enrolment made in this Province would be valid, and that we are driven to the alternative of rejecting the Statute altogetherj (as was done in Massachusetts) or allowing the enrolment at Westminster to be goodk That the enrolment of Deeds at Westminster would be unsuitable to the state and condition of settlers in an American colony^ can hardly be denied; but be this as it mavi, I quite concur with the rest of the Court in thinking that without resorting to the alternative just mentioned, and "with- out any great incpngruity in the dOfect" this act is capable of being transferred to our code, to an extent sufficient to give it application} if not to the whole ; my opinion being that the Sn- pveme Coi^ as part of its- Constitution possesses the pow» of enrolment, which was not indeed conferred on the Courts at Westminster by the Statute, but existed by the Common Law ; and was in use long before the reign of Henry 8th. We have intrinsic evidence of this in the Statute itself, which gives no new Ministerial power, appoints no officers, or fees for the T i 1 ■fct 19!3 TRINITY TERM enrolment in the King'g Courtf, but refers to It as n powir bI-> ready exercised, and this probably to some extent, as would seem lirom a Statute, 6 Richard 8d, c. 4, which provides that the exemplification of the enrolments of such Deeds as had before then been enrolled in the Rolls of Chancery and either Bench and Exchequer; aid had been destroyed in the late insurrection or otherwise eloigned ; should be as valid as theDeeda themselves. - Lord Coke's exposition, 8 Inst. 673, has been already noted. The principal reason given b^r the Courts in deciding that cer- tain Statutes do not extend, will not opply to the present^ while some have been considered in force, and others constantly act- ed on, which are liable to nearly the same objection as this. The Statute of Mortmain, (which, by the bye, was passed afler the establishment of numerous Colonies, without naming them,) and certain other Statutes mentioned by the Mast^.T of the Rolls in the case, 2 Merivale, 143, are inapplicable either in their object, or provisions, to the situation and condition of Colonies. So it is said by Lord Mansfiekl in 4 Burr, 2600, as to the Statutes 12 Rich. 2d. c. 2, and 5 8c 6 Ed. 6, c. 16, that being positive regulations of police, they are not adapted to the circumstances of a new Colony, and therefore no part of the Law of England which every colony from necessity is sbp- posed to carry with them at their first plantation. The Statute of Frauds has been held not to extend to Bar- bados or Bermuda ; but for the reason that they were settled before the passing of that Act, 2 P. Wm. 75, 8 Ves. 487. — For the like reason it was held in the Pennsylvania Courts in 1754, not to extend there. 1 Dallas 1. His Honor the Chief Justice has already referred to some instances of the adaptation of English Statutes to our Pro- vincial establishments ; I will mention one or two others. Exemplifications of the King's Letters Patent under the Great Seal of the Province, are of daily occurrence in the Courts, yet exemplifications are not evidence at Common Law, but made so by 3 & 4 Edw. 6, c. 4, and 20 Eliz. c. 6, which speak only of the Great Seal of England. By Stat. 34, Ed. 3, c. 16, traverses of offices found before Escheators and certified into the Chancery shall be tried in the Court of King's Bench, yet it can hardly be doubted that the Supreme Court has authority to try such traverses in thb Province; The Stat. 29 Car. 2, c. 5, for issuing Commission& ta take affidavits is in terms to the Judges of the Courts of King's Bench, Common Pleas and Exchequer, and expressed to be for the greater ease and benefit of all persons in the taking of « it IN THE SIXTH YEAR OF M'lLLIAM IV. 193 affidavits, to be made use of and rend in His Majesty's Courts of King's Bench, Common Pleas and Exchequer, at West- minster, Yet this is th« only original authority for the Com- missions issued by this Court, the yalidity of which has never been questioned, indeed has been repeatedly recognised by the Legislature. Commissions to take Bail stand precisely on the same footing, depending on the Statute 4 W. & M. c. 4. The Stat 5, Eliz. e. 26, empowering the Queen's Coutts in the Counties Palatine to make Inrolments was referred to by the Plaintiff's Counsel fur the purpose of shewing the limited extension of the Stat 27 Hen. 8, c. 16, but will not, I think, bear out bis argument; for these were Courts of local jurisdic- tion within the Realm in existence at the time the Stat'^-^ passed, and the act not having mentioned them, was conside- red not to embrace them, on the same principle which decides that Statutes passed after the settlement of a Colony do not extend to it, unless named therein. The Statute of C.t. 2d. for Commissions to take Affidavits, was in the same manner extended to the Courts of the Counties Palatine, by specific enactment Another branch of the argument rested on this being a Mortgage Deed ; but as this is not a proceeding to recover the amount secured on the Mortgage, but to obtain posses- sion of the Land ; I do not very well see how the Proviso inserted in the Deed of Bargain and Sale, for the benefit of the Mortgagor is to give it a more effectual operation to pass the Estate, than if no such Proviso were inserted and the Deed were absolute. The Statute of Inrolments does not make the Deed void qua deed, but merely says Lands shall not pass by Bargain and Sale, unless by Deed indented, seal- ed and enrolled. Lord EUenborough in 3 East. 442, says, — ** a Deed qua Deed certainly requires no Inrolment to give it ** validity, that is not a thing whicn arises from, or is connected " with the nature of. the Instrument itself." So had this Mortgage contained a covenant for the repayment of the mo- ney, without doubt an action thereon would be maintainable without registry or enrolment : but beside that, it is by no means clear that this is a case between Mortgagor and Mort- gagee, to which the maxim could properly apjMy ; and allow- ing even the parties to stand in that relation, the Plaintiff does not fail in this case by reason of a better or prior title to the Mortgage Deed, set up by the Defendant, but in con- sequence of his own omission, he has brought his ejectment before completing his legal seisin. If satisfied as to the Law, it is not for Courts to regard con- sequences, but the only effect of our decision this day will pro- '41 194 TRINITY TERM bably be to enforce the Registry, and not the Enrolment of Conveyances, and in that respect cannot fail to have a salu- tary operation. As there must be a new trial on this point, I shall decline at present saying any thing on the other, not be- ing quite satisfied that I clearly comprehend the purpose for which the pared evidence was tendered. Rule absolute. N, Parkert -E. B. Chandler and W. Chandler^ for the Plain- tiiF.' J. A. Street and Weldon for the Defendant. READ vs. SMITH, AND OTHERS. A PUa in Trespass justifying an entry upon land to re-lake Tim- ber of the D^ftndant, carried there by a sudden rise of water, in a ri- VdV in 'which it was being floated and carried to market, held bad, because it xbas not shewn that the Defendants were not in fault, by hav- ing used their best endeavours to prevent tha Timber coming upon the Plaintiff's land. Semb — An entry for such purpose and an injury to the herbage, and a subversion of the soil occasioned by the hauling and removal of Timber, are acts which cannot be justified by any averment of ceere ana diligence to prevent the tiinber getting on the Plaintiff's land. Trespass — The Plaintiff declared that the Defendants on &c. broke and entered a certain meadow of the FlaintifT in Ba- th urst, &c. and with feet in walking, and with cattle trod down, crushed and spoiled the grass and herbage — and cast and threw divers logs thereupon, and with the said cattle and the said logs tore up and subverted the soil, &c. The Defendants pleaded, \$t. The General Issue-— and each Defendant separately pleaded the following special Plea, viz.— • Action, non, &c. — because he says that, he, the said Benjamin D. Smith, before and at the said several times when &c. was seized and possessed of and of right entitled to a quantity of pine timber and other timber lying in the big Ne- pisighit River, above the said meadow, or close in which, ftc. which said timber the said Defendant Benjamin D. Smith, was about bringing or floating down the said Nepisighit River to Bathurst to market, when the said River became veiy much flooded by aa unusual flow of water, which sudden flood or m THE SIXTH YEAR OF WILLIAM IV. 195 me of water iu the said River with the winids and natural current of the said river caused the said- timber to be floated and driven about, and the said close or meadow* being. also in- undated and overflooded by the said great rise or flood of wa- ters in the said river* the said timber was against the .will of him the said Benjamin D. SmUUand tobis great injury md damage, floated and driven bv the said flood, wind, and ,cur- rent, trom the possessi»' such tions. The provision in the sSteof f ?''!^".P™P«'' «stric- ""'' -« - 'He State of Xsafe^t,t t^^; i 2(H TRINITY TiaSf 1799, which then included the present neighbouring State of Maine, authorizing the owner to remove timber which has been floated on the lands of another, on paying or tendering luch reasonable damages as may be occasioned by the remo- yal ; which is also deserving of attention. For the reasons above assigned, I concur in opinion that there roust be Judgment for the Plaintiff on these Demurrers. End ^ Berton for Plaintiff. The Solieitor General, J, A, Street 4^ Kerr for Defendants. 1 t