'->. IMAGE EVALUATION TEST TARGET (MT-3) A :/. f/j 1.0 I.I 1^ 12.2 ■IP I 11:25 ■ 1.4 1.6 V] ^ ^ /^ A ^ .^ /A //m y Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. I4S80 (716) 872-4503 ^ iV iV \\ 'iy > s ^ l/u CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. 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SK<'()N|) KDirioN lltMM IH-j;. TO HASTKK TKUM .INCI.I -I\ !.» lS7't Sm p»ges I?// :o IJOO for Cditi /■» Hildrjf jnj £dstcr fertu, 1819. ('oNr»isi.sii riiK I iMKM kH HKfonrr.i' i\ dik «i\>(rH« hii'T iiKiMiir>> '>r itm i.Air. > iiiRr jiHru:*! riiirWkN. vMi> no: kkhpki rivK «i:iMiKrH ^\r IHK lAtK liRoHiir. r H. MKItr IN. Ksg.. l>iVII> s KKHK. MKHHttH. UANNiT. i'l' niHRIIxtK. lUHRIsrKKHir-l.kW. rii\ • wnr-Ki.i. \i i.KN. < KIBI irHTII.\ n KK mK FIIK Sill. With \tiiir kiiul jM riiUHriiitii I
  • ii of lliiH ili:.'»^t to \iiii in Jicknowl. iIlmii' lit of tin- kiihl ii-^rtist ui)<'f r«'uy \oii ni its |tr»p:iratioji. Siiu'*' tli.it liiiif JIM ho'iourul»l«' iiini |iist!\ ilfull\ tU'\ Mt til IJ> ports i>: tin- Stiin lUf ( oiirt ot II w III iiii.-.\viclv h.i hciu pri'pJiii ( H<«>iK'r tlmri Wii.s m ( •iiunipliitioii, owiiiu' t<» th« ih'stnic- tinn of tll«^ lIUHoM copD' < of til*- lirst rditimi \u tli< |i;iiu1m ol MrKrtrn. McMilluii, Suiiit .Inlm. It\ tli- l.it< disiistroiH lire m that eitv, iind tin Iosh from Hiiim ciuihi (if inaiiv copii'H in the privutt liltruruH. At 111'- ur^^rnt Mij^i*! Htioii of s«'v< r.il of tlit- in< iiiIh '•h of thf bar, 1 li,i\<' iiiidtrtiikt I) :iii t. inclusiv'. I ST'.J. iistrr •nn. Siiici' tli«' pul'licatioii of tin lii^t t'liiioii. tin casts m H:itui' inarkt "I as iinr-pTtrd, havi , witii noiik ft w excep- tions, now apprar (1 in tin lirst voimn. of rtporis of \\ illiani rn^^sliv, I sq.. and tin liftli and sixth viduims of r< portH of thr lloiMural'l' .lt)liii < Alltn, and rilt roncis art' now madi* to tli'. s« rt spi i*tivi irpoiis, mstt-ail of. as m foriiuT edition, to flu ttriii and v« ar in wliicli jii l^'in. iiv was dtdiviTtd ; a few cuw« s havf invu overlookfd and ft luani in llu- di^i st eit« d a^ of th-- t«Tin and >• ar. hut ar«' rnrrt'ttni nud fu'itiihf ritril us of the rt'8p»'ctivc piih- lislitd ri'porib m tht tndtu nj intiiua of citsi-A. Sonu* ti w cases rt main still nnnportrd, the full jutl^^- m»'Ut>4 in saint) liavin;^ lu-en loHt or miHlaid. Whilst tin se are not numerouH, then* an- several addi- tional casus now reportt' unio or othrrwis**. anti thn I'roltuHion will duly iipi-n'omtj' tlif )>raiH«'W(irlliv, nUlioiit^h It)ii^ (1» liivtcl noti<>n of th«« Loj^iHlutur*', in liiivm;; pri)vii<' iitiii v:iliiiil>t(« rcj'ortH of CHAVH hh nr«' now coiilaiiu'tl m rtporls known and cited AH tiftii anil Hixth Alltn'^ ri)M)rtH. My distancr from tli.* puMislxT'H prt -•< huM |>r»'Vi«nt»d nn- from rrvisinj^ uilii hucIi • ar*' a^ 1 dosircd tli»< proof 8li«'( tn, and oorrrrtin;^ Hevmil minor «rrorh nnd ina<('urm len cliutly occurrinj^ m mim«'H and ti^^un-H, wlnoli, liow« v< r arc in most part, \^}n rt* conbidtrtd n(c\ tin- I'liMihlu'rH in the ex«TUtion ot tilt ir part, and it is hoped that tiie central uorKnianhhip and style of hook will prove sat i*- factory. I have endenvoiirid to make the present edition aH complete and servie* Hi le tt) the N pal profesftioji as kmcIi nn undertakinj' demanded, an prove, what. — wi h much lalour I hav. endeavoure.l to make i.— i useful help to the practising lawyer J AS. (i. .sti:vi:n8. Saint Stki'Hkn, N.H., .lai:uarv. 1880. :li \ t) CHIEF JUSTICES ANI> .inhi,K> (iK Tin: srniKMK (orKT. inf«»M t'l» riRXT HITTINo ■ 'T TIIK tOl'HT Is ITM.'. Tn iMr HKKHKNr riM> niiKK jrsTi'K-' \|ilM>'nl<' 1 Ke«i(iir' l)ii'idv< l.i flltiw. J ii!i(h«n lliia*. J Iri S» I'l.lnrn. ^V iril I'liMxntn. •^ir .( uiv I ■ if'rr, WillMuJ Kit bit. J < n < ' A. It'll. J I ■ 1 1 • K?<. J «nic« I' itii iiu, I- If Ali-ii. J '•>>'> I I phiia, J"h'i • I in'iMr*. K-4«.rl ^V'l i. ."<«n.. J>> III Mil 1^ llli»*. Kl-*«r'i.J I irvM.' taniponr)' • >i>')ii''iii' It IrtitB "ctnhor W . f I tin II i' • 'rl. W kf I I 'lii|>in III. Sir J4'in>. •'dr(>-r. Rii i«ri I'irkwr. »}«">r«<« Kr«» liTi.-k .<4tr<«(. L" iitii'i \ ^V ' '. 'ii»t. • PtHiim- I I.niiit. iovrr- :■ >r t Vew KruiMWiplc. July. IHV* ) N.mII.1 I' fk^r. M R.. oiirl 'if <'lii>ii*«r» w«* «'M>lt4he<|. itii 1 lli«» M«i ff '>f R.ilU w 4.« (r»ii«f>Tr.' I In - (i>r«iiBu I" ••If 'i> \ct IT Vio 0*11 •>.*! I WiltiitiaJ Kitctii-. X «• ix)iiil«l It I'uimi* .'■I'liti" "f thf >iiitr«in« • 'ourt ••f tlit> (••iiiiiiii.tn. Mh'i't .ijfir HT.. »ii.|t'hiel JtKii -t. .,(' «»in-- III IhTS. J- )|a ( . MIttii. •» ■»< «i>priMa« Tourl. • '. t'ltMtr <», IHTS J., n W \Vel.|..„. '** »rli»< Kulmr. \ llitii*i<>rl WM(ii»<)r«. v'U^rlM Uud. ^eiiiU' I. P,t!tn«r, \n> .". ITM .Nov, n. *« Jiin.' > lilK> ()pt 1 i'. .*>«»|>t .' .IVift \M< \ lit..-, .i. IH. Oct ■*. M7i \..» A I?H4 ITHI \'.i» 2^ iTM <.., 12. IH \.,v. r>. 17v4 |4«4 '•••t -11. I7»» , M»» '.M. Ixlli hifflii'tlM j.iiv .'. Nrr ( .lillv til .r.iiie». IH19 Ket.'i IH'.M f ily^ ini>< Auk -".' KU Ai.ril.' 1HJ1 ,I)«.o 1H|^ >r l" I Mir 17. .S'llMichV* 1HV> >,^^ ^i l- I • n-f-la-Ho* J.ly 12 mi friH V*. l<-i". iti't. *. Ill) I»i. iH(.!i .I.»ii H. IV.l K\» Air. IT. IHkV <«ru S. I«M l>««. H. 11W& • lot IMS M.y -Ik M70 <>«t K. I •»,■,■. JtiiMi IH7V 'iirf .III- tier. }*i% I'hii • Itflietf l-l.*! »IUil»> I-"" I iiK t ./ iii<-.iudt«-> Ki|iiir> ./aJa,-ii \i;i:iiK\i\riH\ <'. MS. Chi) iiifii. - >l«iiiiw rifK lU ("'il* Vll Alluu'ii (Jiilai {' \ i(«<|x>rt< tlaa HauiiA>°» |.lkii • -I lt4|Mit- I'tiR l*in;hl.>'t>(\Villimi,( U.|.. ii. I'. A 11 — l'»t;nl.r<>n I ot >UR» )'iiii«ir»i> i ClnrlMtti <'f.rl«tnn, ^ Jmiiioh (2 Sl«»ii.n Vnt<'rin, i»ii«l Mmir • lt»tli t nil, im;7 • u. . 1 Y"«k Suiilair*. mwi i ,,„, , , -. JaniiM Htmiliiiitii < ,, I'HJi .liim-. l"a\, I _ ,. ,., 1, 4 AlUri, VVi«iiiior«- t ,.^. , ,^, , , JaniiN VN lliHDiiir ', , , . • , I'tli .?•»••. iHt,,, «|r«««««id. t Uinl Hii.i K< nt . . I nU('<'i I >|i»l \-\ ( UtiitliiiitiUrliUi>i, I Uli<-i . I*^!? i Hftitit .loliii A Kiiik'it ' « i.ijtt ..( Adtiiintltv '-'4 !•: u I* A r A . ■i^ N'lTM. A f»«w ciMM'n n'|>iirt«*tl m lifili iiiiilum«ii of ■' VIImqii •< I'orl'* ri'iiiitiii ritfil ikx III (niiinr iln'-tut i»^ >>t Ui" l^rin iii wliio)> I'l K: iiUMit WM ihdiviTiHl. Iiiit »rf< ,;„rectUj fit^.t itoi iitfly III ilio ni't-r of niimt .i>' «•,!<,•< It \\%^ l> -oil ooii)ti'l»r»'| tiriii(> ^wftry t<» ri >ti(? ■ wira • iii th« errutA Tho fiillow iuj{ crtH.'s. ii'«.| iiH if HM i»iiil IH73 itrj rfjKirt»*d ii» 1 I'uc* lr\ U'lxirt'i Hii1 aro pr >p'»rly ciUhI in in l"X <>' n^int'H, vi/ , l**f ili-m. ./•iHn-liu, \ lurthtf, (iil'iri v. uim, //iinntt^dx' » s'Jfirarf, t/-(',iui/,|i,,{ V. I'litc.r, lifinnii v. Ilitrthmun, M'(».i.i v T/i/- <ri, lor " AwrinI " re»il " ncoorJ." • 11. liiit lih.'. HiH.rr (h-; •.•«• I'., It l» -J." i'», t<«rill» liiH' rr'>iut<<(), for "• "J llan." road '• KiitT. H7I." !•;. fur '•iuin.lfr iif (' •nrt»" ri'Stl " r«»nut!i." •• o:>. Not*. 6. for r. All ••.Jfi" ri'Ml " .'»•»." " I'Mt. N.)t.> Ifi, rt.l I It f....t.)f Mot"'- WrrWium v. /», rkiiw,:« /'«> IHj ' 71, N'otn S, till I ktt liiio. fur •• iiiovtMl " r-!».| "■ prosfd." • HH, N.-lo 1. f..i I All ;m;1 ■■ rii»»i •• :>«! •' %'t, third hii.' frmn tup. f.ir '• 17 " read • -'7 " " ln;j. N.>t.'G. for ' Mtwl T. l-iTi" r.rtl I Pu^ I'24.' • 11.1. NoU- :J. for I All •H.H) • r.'Ad f..'t •• I l«i. NoUr ;0, for 3 Tun; " 3.t'J " ri»d • li?" Il'.i. Nolo H, for 1 Putj. • r.>7" n<»«l " -.'-'G " •' 171. N..t«i ".:». f.rlU'u- 'GCH ri-;id • His." ■' l«0, Not.. H. for •• I). \%olf,- ii<«d • Spurr." • IHI. Not.' H. for • ll.fk ■ rii»d • Peek " • I'.U. Not«' 17. f..r t I'u;; • iU'J ' ruad ' il'J.' •■ •-'«)1, Nolo If,, f,,r 4 All 7f, • n i»d •• 7.i • •• Ji.'.. S,u- M, (or • Harding t. ;*d • 8:..wurt." •• iHj, Not« G. for .'. All. •• 2% ■ r«-i»d - 1 .0. " •• liM). :ird liitu fn)iii t«»p. for " '»i3 " r«».' • 515." •• .Mt7. Not,. -J, for :i K.Tr 'Ml- r»f.»*l •-MJ.' • US. N.ito 1(1. f..r i All •• .■>»•,.•. ■ r.Mil " 3Gi." " ;U.>. Not« 13. »fl«ir K.»nt T. iii^.-rt " 1871." •• Mi, Nolo »7. for 1 All. '• a.w' r«i»d • 4*.»J. ' • :J73. Nolo I. ior •• Mil. T. iSiH " r.-»«l " C. Ma. Ml. '• MA, Solo .'i. for 1 K.-rr • 16.1 " r.»»d ' 13G." '• ;*76. liflh huu from lop, for No. ••GO " n'ad " Gi)." .Wl. Noto y. for •• Hil. T lH7:r' roAd • 1 V»^ 'iU " KRRA1 A. niwrt ' IM 4'.td. thir.i lint* from (t.'i. Not* '>, for 3 K«'ii I'M " Tf i08. N>U' V fi>r B.r :t4^ iia. Not.' foi i PAH f.r ••5'J.H' ro»l 5 '). 4 •• I • I' A H ri'ft' ii3. Note-:., for -i ruR, •• -^v. !*•« I •• .vi; •• .".14. N' to 6. for C Ml. ••47'J" rvnd " 4T.» .VVI N >U»2, hfU" ( .iitin V. Wli.W-n itKM-rt " 4 \il 3. NoU' :23. for • 1 ' Kerr r**. »3. for " dt-rv*!*" ri'H.l •' (lirvpii. ■>i'J, Noll- ;5N. fur SA*ai;<.' >. II. k ■ rf».l "StH.-k .-.Jl. Note 4. (or • \V«'"■■' •8, N. U- 0. for • {'ointll" n . I • (VjunoU ' 1. Nolo 11. tor 3 Km •* M:> " rt-mJ " «»4,' M5. Notp 1. uft^T J .\ll. miMrt •• 21S." • M, Nolo 17. <• r •• GiUj* " ninl ■ C.iliw." ,A'^, S.-U- I f.-r 1 All. -HO" •.«'! -My NH. lifth liiu fi"U> l'»r. f«»r • » r. A B r.'i«.l " V ^ 0%. Sou X for Hil. T. IfZT' read • I'. M*. 5T :;s*i. N.tf 17. loi 4 'KTr'" r.A.l ' .Ml." T Vi. Notf .'.^, f»T •• Tinker ' niui " I'orkiu*." T>3. Notr JV iiu " McAii«lr«\-«i" r«Ml • hJtuuilein." wr7. SuU- .5. ftr •■ 5' run rtiKi ' 'i vcj, ..i. illi lui« ffoiii V. i> »»<1>1 M-^ t«rr»lj» .•iuiUckl c«»«e Hift-h v tVrkiu-. J I'uK- :07, iiiul«r ' m»li< i<>M* :irT»"»l ' uiwerl " U.fou v. IN-rknm. 'i !'«*♦: 3'27 • M?!. Nui*. lO. (or 5 .Vil. • &V" r»ad •* 53y " "»73, NoU- 7, for •• ?v-«ldi>ii " r«aJ •• I.*JJ. -v!j3. »c*ii4.1 lii.«' Iroiu t..|i, for <") .vll • 3 "l v.«|. NoU- -Jl. for 3 Ml. •• 43a'' (.-•d • <3 '.M4. NoUj 17. f»r • ( nik " rf»«i • I'laik." 'Hi, Nnlt- :!. for • WiIm.u v K)1i»' rriui 'J13, Nctu 77, f'lr ('<>> V '• T«*otn-iti" r«-hJ V».'>3, NoU- H. for lUyuioiid v. « McMmIiou r«^nl ' M.-5I*. i».ii y^>. NoU- 72. for :. All. • 558 •• rf-wi - .lit." nx»2, N. t. :',3. for -• Vitlnrn " n**! " ViHum ' loll, NoUrt4^ for' Harnn-.'ton " rtiul ' liftuniti^Vtu l(''-'3, NoU- i, for " C»M>inort' ' i< mI ' l'fcj»«iuor«.'" HcH, hixth hill from U>\t. b««fotv Pug mwrt '' 4." 1<);U). NoU' V2, for Jvnit'f "no" j.<,T»f-i n »J " h»d." HM6. NoU* 11. f. r Alh-l V. " Fnuich" rtwiU " Fnnk." UYA'J, NoU- 32, for Nu{(i'nt v, • lirx>wu " remd '' B*i imh." ion, NoU" 11 for Trill. T. ' \HTi " n^ " l»a4. 104»;, NoU» Jl, for Wlureler v. • Oov«f" rmmii " (Jo»-. " m .»t -.niM \rom%o." KI'llAfA. )•»«.. 1(V).. Not- U. for " 3 Korr" r«-R4 '• ^ All '■ " l(if.4, Notr 17. for '2 • K.rr" rvtil "All ' in«-,|. Not.' -JO, f<.r I All. ■■ U«f ■■ r.'n.l " 4'.tO." I0f»*t, N«it«« 4, for •' Homo" v. Cumuu r^-Ril ' H'>w»*.' " ll.'ifi, under not*' lU'plHviii, (t.r'AiiKtin" v. Uo.vill r»M«* jiidicinl 11, for " DttviHVilU' ' \ r.rauMMii r.-al " D..n»villi " 117-J, N«)t»i l». ftT McIiitoHh V. •• MumerH" r- '«.! " Mum* it." " I'ilH, for I)<'«' V Wftlw-n. '• 6 All." read "1 Ail " " rj.Vl, Not« 2, for I All. '• S'J.') " rt'fi.l " .'.■-•'•." " laiU. Kot«' 14, for '• 111 ' i:( riH.l ■ u ." W. Ami uta i-ithi llirch V. IN rkm»*, '2 V\\^. if.'T. " \'I>->*. unvti to luw Hti:inn \ M' rriHtn. //./(/. ().> Alien, ('..1 Weldon. F islior, snd iM.fT. .1..!.. \V..f,mon'. J.. .li.Htn'inu.) ti:ut the in-liot n: .lit WH- n. (\\>\-: oMinKi' Shoulii h(V e npprnrnt im.ln 'I'ltl- '/>'l«- :iimI |»rol»;il>lr « »!••.«• %»«r*«iHj ol prool (If. Infornintion linvir^; Im. n laiti !•< for- llir d»'f«nf tlu' !'( nc. . n:.aiiisf tin jilnijitilT. lir iKHUnl a sum- nn^ns and ««>pv. hit lli* vo\\ was «1< f«'»tiv«' in not roiitMin- inu the rtturn d.iy. 'IIm- oonstal'lt niadr oath • rfort- the Justice tliat lie lind ^^ rv« d a triir ropy of tlu simunonH, wlunuiion tlir I'laiutilT not apixannj^ at th^ nlurn, tlio difenr« tht* drf. n<.'iiisan(*<' and uas tht r< ti|H>ii n inanih rhnr;j:i'«l hv a Jtid;:* k onh r. An Act had jii^t hi«n passi d not known to llie dt ft-ndunl rtino\in{^; tin- Shirt town from Kini^ston and nnikinj^ th*- coinmoji paol of St. John or \V( htnior« lanil th< *'c!nn»«'n ^•aol of Km^^'s. An ai tion for falst- iiii| nsontnent havinf? h«t'n hroiiflit aiMiin>t th< JuntaM-. //./dirtion ov» r thr .suljtct niatt« r of the coinplaitit. anr ls-25 To MICHAELMAS TKKM (INCLFSIVE), 1M7.S. iiti'ri:^ii:^T Sir VhiuViUff II. '• liilU ana Notes VI., 10, Kdly v. li.iUock. " FurtiiurBhip. S,, I'loadin^ II., oo, M,lh,n,ild v. < 'ninuiiitf). l*r<»<-4'4*«liiiK*> iiuiiiiiHl il»<»4-<»ii4liiiK I>4'l>t4>i' not ubaliiiy ti> r. .S'»»' Al)Hcon(linK debtor, 12. Kx juirte Aicldbuhl. Ilii«>litin«l iiiicl %% Il4'. I>fatl'. of liuHband. Action dots not abate. See Huhbunil and Wife. II n-ritfjtnn v. McMaiKunin. or Joint tr«>«>|»iiH<* «iii trial. St> Tif.spasH II., s, M,ilnn,'ij V. Piinhfi. " 12, Lnntun v. J(/(///m. IM. . I <•/<#• V. Alexiiiiilrr. It II I* II -•>. Atk IttSi'll V, 3/r h/.i/. 4M ritflit to t oti* lid nit«*|>a)<>r. Sff Election 2. J '..r parte I'uttle Kll^iiWUWU l>i:ilT«>IC. I -Mii|>i>r*>4'cli*a<». Thi' tourt huH no power und« r 2(1 Cuo. III. cap. 13, to K'rant a superHt'deas of a warrant of attacbment, is- Buud aj;ainHt tlic goods of a coiicealt'd debtor, unless it appears tliat all the creditors consent thereto. Ex jurte (itive. lift. 1H7. t.S''<' Now Consol. Statutes cap. 44, Bee. 12.) i ■^\ y-t 10 ABS('(»M>lNCi i>El>TOll. »i H«'fiisiil lo Kiniil rroliil»iiioii. The Cinirt iclus.a a ml,. . itlur for a prohihitiiMi or certiornri, in r-K'nr.! to proCi'o.i.iiK'H uiulor the Almcoiiil- in- Debtors Act. '2(] (uo. III. cap. i:». tak.'n U'foro a Jmlj^i of nn Inferior Court of Comiuon I'h Uh. it not ftj- pennnj:, uj^ou the ulViaaviti^. that the .lud^M. haa uctea miiuviurly in anv part of thr proctaings. ArpUoation had h. tn maat- to tli.- naia Inferior Court to Htuy the prom-aiuKS. l-ut it aid Jiot api^ar that Huch npplicft- tion was in the form prfHcrihi-d I'.v th.' H.v.nth wfctiou of till' Act, ana tlie Court, after h.annj; the parties, mailf no order in the case. /.> prr *J«V|. 4— l>4'l»loi- IdininUtralor Idulil of Trii«.Hr«» in I»i'«- |MII). Under the Act of A.s.seml ly 'iCGeo. Ill, cap. llJ.the truh- tec8 of an absconding debtor do not bt-come entUletl to the projierty and credits held by i'uch debtor nn tu\- ministrator of a deceased person. H'tbim v. A/« //n«<-. *2 Kerr i't'Ao. •1— Kitflil ■>• l"iii«»l«'«'«» In *«-ll rr«»|»«Tl) l*«i«»«»f«»*li»ii. The trustees of the estate of an abnconding debtor ap- pointeil under tin- Aet '20 (leo. Ill, cap. l:i, have a right sell and convey the real e^itate of the debtor, though they have neV( r taken posseHsion. Ih^ v. Mrduire, 1 All. r,12. I'riiii(liil4-iii < i-t> s4>i/.«Ml l.itil»ilit> Tor mil. rroperty tii'i/cd upon a warrant issiuil uudor tlie Ab- Rcondiii}^ Ut'btorH Act (1 Uev. Stat. cap. I'i'x i.s not lialilo to the lancUonl for a year's rent, though notice of iiis ehiiiii is |.;iven to the shrrilT hffore the (U-Hvery of tho property to the trustees. Stantun v. Johnnon, I .1//. .51. T. Arlioii iiKiiiiivf n«>l>l4ir Siis|»4>iisi4»ii Hail. i'roceeilink's unth-r thr Ahseon(hn^ I wbtors .\et do not 8U8pe!id an action pendini:; against the (hhtor ; nor are tho hail discharged hy tije plaintilV tihng with the trustees his chiiui against tlie (hditor, and having the amount ad- justeHi4l4'lir4S Whrr.' a ih'l)t(>r was a resident of tiio State of Maino hut did husiurss in this Provinet', and wtMit away for tlui purpose of defraiiding his creditors. — Ifrll, That he might he i^roccedt d against under th<^ Al»8conding Debtors Act. liri/ini v. Sd'i'tiihin, 1 lliin. lUVj. O A w'lrr.int cannot issue against a person as an absent (hbtor under I liev. Stat. eai». l'l'>, unh'ss lie has been a rtsi-hnt in the Province. A'r p'trtr Ki'tth\ '> All. 81. lO liiV4-*>fiiiK oi l*i*<»|»4>riy >4»ti4-4> I*iil>li4'ali4>ii. I'roctcihngs Wire taken against S., a debtor, unel>tor8 Act; a warrant issuttl l27th Novem- ber, anil notice as required by the .\ct. was published in the Koyal (la/.t'tte. December *2. The warrant was dtlivcred to tlu! SheritT of York on the loth February following. On the oth l\d»ruary, a creditor of S. having obtained judg- ment against him in the Supreme Court, issued an execu- tion and r»'cordeil a memorial of the judgment in the County of York.-- //♦'/NI>IN<1 I>F.HTOR. imported into tlu- cnno to prov.-nt tin' plnintifT from rrnping tilt' fruits of Ills jii(l|;int nt. Krrr v. Seoul, '1 lint. \k\. J, -The nal ostate of an almoondinj; (lil)tor is div- ♦'rtted bv tlio publication in tho (raz^-ttfof tli»' warrant of at- tachment, ami vt'sts in Ww trusti't-s whm appointnl. and is not affected by a subwe.pu'nt convoyanc*' by th«' debtor. Tliereforewliire ])rortt'din>;s werrtakrn a^'ainst an abncond- inj^ debtor in K«bruary lHr.<>, and notice <.f the warrant wan I)ublisbid in the (iazette m April 1H«;(>— //W«/. That the instate of the debtor was thiTtliy divi'sU'«l, and that a ault- sequent deed from Inm was inoperative, thouRh the truH- tees were not api>ointehi':hciiu v. lilnrk, Mirh. 7*. 1m71. I*i Dealli of l»el>l(>r lltlirf r within thret' months after the [)ublication of the H(»lice of the warrant in the Gazette, nor by the debt«)r being de- clared bankrupt in Knj^land within that perioil. Kx parts An-hihall, '2 Unn. 'M\. i:t-l'(>ri*iKii 4 orporatioii. A foreign corporation having an agency and carrying on buhiness in this Province may be proceedcil against as an abs-nt d»btor under the 1 Hev. Stat. cap. 125. Kx j'lrU The ('nhim).inn Ifi^iir-inr,- Co., Hij. T. 1h71, ll-Jurai— ^iKuuiiir«>-Ut«ai of. The want of a hij.'nature t<. tin- jurat of the ?itlidavit of the applying creditor ujK.n which a wan>i :'. > ttai'hment i-< issued under the Act '2i) (it^i.lll, cap.!-' . ^k fatr.l defect in the pntceetlings. and is not waiv-d. Uy tx j.plieation for u superriedeas by the debtor. Kx j^rt^ S\uon, Kaster T. 18H8. I'f ~in«»oiv«>iit %«,;. 176, ABUTTAL. 1» I4i— l*r«»|i«'i-l> a4-4|iiiml h) ilrhtoi* •*iih«>«'<|ii4>iitly t4» ii|>- |»oiiiliiiriil 4»f I I'll *«t <•<••» ^ 4><»tliiK of. Wlicrt' procordiiij^H \n\\v \>ci-n taken against !V in-rson rt« an aliHcondin^ deMor, and trust<'»'s haw been appoint- ed undrr 1 II "V. Slat. cap. 12.'>, i«rop»>rty accpiirncl by tho (1* btor after the appointment of the tru.steeH, doe.H not Vust in them ll-innimituii v. ni' i>»«iii4' of uarriiiii l'\ i«l4*ii<-4' ^Iiii4>iii4>iii*> 4»r «l4*ht4»r I'liil- iir4> l4» pr4i\ 4' Iu4't u Ii4*ii 4>|i|i4>rtiiiiil>' liiid. I'roof that an .\hHc;)ndin;^ hehtor bad property aubsc - (juent to the iHHuitiji:; of a warrant against biin, docs not raise a presumption that he owned it at the time the war- rant issued. The phiintilT shouhl shew that debtor owned tho i^oodrt before the issue of warrjint. The statement of (»iie of the trustees that lie w.nt to d.-f. ndant ami a.skeil hiin for tiio projjerty belonging' to the estate and his rei)ly was that tl property liail l)een phieid in bis hands by lioychii for his wife, and tluit ho wouUi ^ive it to no one elau, — Held, not sulhcient e^iilcuce to leave to the jury of property in plaintitTs, and if the plaintiffs K'ft it in tloubt whether the goods belonged to Boydeu at the time proceed- ings were taken agamst him, which doubt might have been reMjoveil by examination, the defendant was entitled to the benelit of the doubt. Cullrn ft ill., Trustees of lioyden, an al)Sconding debtor, V. Tn**. 2 I'u'i. ir.4. IM >>iip4*rviHi4»ii 4>f' |>ro4*4M^diiiK*» 4>r Trii«t4M>«». See Supreme Court in Hipiity 7. Outhoust' v. llirlonnn, ABI TTAI.. ICo|>l4*vlii 4l4'«i4rlhliiK |»liiii 4>f itikliiK b> ahiittal**. Sn- I'leading 1. JU. MUU v. Dntitt. ,4C€;i:PT.4.>iiK. Str Hills and Notes. Of Bill by AK^nt Aiillioriiy. iSVf principal and agent 10. .McGUie v. Gilbert. Per-pru4'uratiou -Aulliurity AK«^n4*y* See Bills and Notua 11. IG. ^«. u ACCOMMOl>ATIi»N I'.ILL. l>roi<>«.f i:\iii4'4' «>f ii««-|tliiU(-«>, A«-. ^■.. lulls jiiul Noll f 111. ;i. I'.iii.it \. U'llmnt, .%('4'«'|»laii4-r ui' utfvf of i«»u*>. Si< Contract s, J'|MorH «•( 'I'iiiih4'i- «»i 4l4>i*> l.itihllto I onuc. St' ("iintraot 2. liitukiu v. (iintrotfHtrti (or non-payuH'nt. Qua If. Wht'tlur i>r(H»f of accfptjiiUM' m iniu'tisjiry l»evon»l tilt' I'lotosi for iion-pa> jjunt ".' If nt»t mcoHhary in or.lmiiry caircs, whcthi-rit would hr, wlnTr thf acoi'i>tancr |iurjKirl«oU8, and ihr j)rv)lt'«t for nonj'uynn'nt is niatU' UjKdi tin- itrijK'iitu»«'nt to .such third i>(i>.>ns only;' Sw /'..///■.; v, Cttmird, 2 Kur, 2iU. 2— ^iiiiiiM' 4»f' l'niii«l« -%«-4Tpii»nrr. A !!ii re delivery <»f i^joodh l>y tin- v«iidor witluMit an actual acoojitanoc hy th<' v«ndcc of some part thcr»H)f, in not '.iilVu-i* nt, within tho statute of frauds. The roccipt of th« goods hy a coniuiou carrier from the vcnilt»r, without any spt'citic direction or authority from the vendee, will not amount t<> an acceptance hy the vi-ndee, within the statute. JhtUy V. Markt, Her. SU). Iii4l4irs4i ii'< i*i%iiiK |»i4>|M'rf) 4 4>ii«i4l4>ruiiuii l4>r pr4»nil<»«* 4U 4l4'Hl|-4>> bill. ykiu*. A< iF.U TIO!>. l-li4l4'iilioiiol Draft |*r4M»uinpitou. Plaintiffs, merciiants in liohton, haU sold Koods to de- fendant in St. John, and he had made payments i)n account ; A('('<>i;i) \Nh s\Ti^i'V('ri()N. 1.-) th« TO Wfm HotiM tlisput" wlit'tlui" tin- prid ^ of tlu' ;^i)(m1s whs to ln' piiiil ill ^'iM or Ajiifrican curi'tucv. On tlif l:Uh Miiy. l.s«;.'», »1» f.'iidiiMt Hcnt till' pliiiiititT.- )i j^oM ilnift for $71'.», stilting' tliiit ho coiisih Ttd that it would hahinci' ilw uocoiint hrtwcfii thcin. On th.' I'.Hh May tho plaint'lTs Ufknowh'd'^'fd th*- rt'cript of thf draft, hut (h'nio(l that it halimccd tho account, and stat»'«l that 'liey wouhl hold it suhjcot to till' ih'frndant's ordt-r ; and on tho 28rd N[ay ho ro(|u«st«'(l tlu in to return the draft to hitn. Thoy noitln r answor.'d tho lottor nor returned the draft, hut afterwards sold it in tho money market, and claimed a halanco. Hfld, That the draft hoin;; of an uncertain value, deiundent on tho price of <,'(»ld in the United States, mi,;ht hu accepted as an awanl and .satisfaction of tho i»laintitTs demand, and that hy retaining and disposing of it after tho defoiuhint had refpusted them to return it. it mij^ht he presumed that thev had ace i.tod it in full. \i<'i v. l>rrrr, t\ Ml. lol. 9.— I.rttrr <'oii<»trnrfinii Wlicii \iiit>i);iioil*« I iiliqili- «liitiMl ilfiiiiiiKl ^aiiofiii-tion of. Disputt's arising' and e\iHting about tiu' juana^^euiont of a certain vessel, and complaints iiiaile, plaintitTs proposotl by letter— "to ond thu matter if your brother will ilispot-o of his ipiartor I will purchase it say fir :^l,'ii)i'> in cash" — dofondants accepted tho olTor and tho trausfir was made to plaintitT on his payiuj.; the sum named. llAd that tho word.'< "end tho matter" referred to. and wer«> predicated up^n the prt vious causes of complaint, anil that such were set- tled hy tho acceptance and carrying out of tho terms pro- posed in idaintitTs' letter, and tlid nt>t m<;rily reftr to tho purchase of plaintiffs* share in tho vessel ; and that as to tho grouu'ls of complaint a^^ainst defendants which wero sot out in declaration — being samo as wero contondoil to have boon settled -and for which assumpsit was brought, tliero had boon an accord and satisfaction. Wddan V. Wiuiihnn, 2 1*. \- B., 70. Amount paid iu satisfaction of an unliijuidatod domaiid will not be onuuirod into. ib. If languago iu letter is ambiguous it must be construed most strongly against tho writer, ib. ir. ACCDINT. AtioiiM > « ..mpromUlMi: -"•• « in. •«*«"»•»»•. im%i «tl II Vrmiiriii < oii*iii< Att<'rnov V. 7. /^"|'- "^ ^"rn Srofii v. M'rr* >ii ll«.f»< lion i qiM«.i»«»n lor |Mry TiikliiK (till «>■' "*>**' '*'* "'* Mi'lllriiM'liI' .SV( Contract 18. Turn,i v AVir »T. . I »'/»>•« «. n«*l>ilo Mini rr«-dh«. I •»«• ol our ".lilr. iVr Kvidi-nce \l. l:i. l',dm,r v. «,.//^Tf. <;rii«>ral a<f<>rrii<-«> lo BHrri*>trr lo liikr iirroniit. See Sup. Court in lv|Uity. «'», lidcixr \ Itili lll<-(l for ii« < oiiiii. .S>f Kquity. 1. liotaj. r,l V. linen. Uiirrio|ri*% llr|»«>rl. .SVf Barristers licinirt. A4COI "ST UTITDU. ^'t•t' Assumpsit ill. riiu»l by alluviuu), has a channel (hvuhiii^ it fmui the luuti uiija- cent, naviguble for caiiut-s at low water m suimuer, the pro- prietor of the ailjacent lan^l cannot claim the ihIuihI ixa be- lun^'in^* to it by accretion. I>u„j,},ij v. WiUittint, '1 I'u^. :i5(>. Ke<-<>tliiiK of lo\« %«n|pr ititirk F\ii*u»loii of whMrf < u\i'iiiiiit <-«Miflliioii% biiiclliiK u%^lKiit*r Stc Covenant 7. Mayor, ,(c., St. John v. Smith. Ai FTIA.tl. Noruu«*«'of anion •«i»i«>d iu u«- rilnui <-Ium»<* tii uiil. St€ Practice IV. 1. i'uinph'H v. L<.inUn. A< K^owi>:iHiMr.!%'r. 4rkiioul4>dKiii«*iil t»> Adiiii<*%ion«»- Aqnlmrritre. tire EviiUnco 1. ACKN()\VLi:iHiMi:NT. 17 ol Arkiio««ltr(lKii><*iil <>f l^«*<*tl. l*roof oii fiikliitf. .Si (• (I red. n'liiii II ^iiin«'«i. St'i' tit't 1. 1. — l'i-oiiil*t« to |>ii>' d«*ht harrt'fl l»>' l»iiiikrHi»li*). Ill till juti' a to lucovii" u ileUt ti<»in wliicli tlu- do tVuilniit hud liccii diHcliar;{*'d l>y i\u; li.iiikiiipt Act, tlie pluiiitilT rtdi«*d upon tlu' following' proniihf ton cr»'ditor of tli«; iK-feii- daiit KJiicc Lis liiinkriiptcv : " I ucknowN d^c that I owe H. (the pIiiiutitT) iind you. u.h soon iin I »iu iildf I will \my you." Iltld: 1. Tliiit iIjih whs not surli a distinct and un- equivocal pitmiisc to pay the plainlitT as was nt'Cfssary to entitle him to rt'cover. 2. Tlmt the plaintilT should iiavo declar«il specially on the coiulitional promise, uml proved the defendants ahility to pay. liliitr v. Al'tec, 8 All. W. H.- .4<-kiio\«'l4*4lKfii<>iil — \o |»roiiii*>i* !<» |»iiy. A nu-re acknowhdj^nu'nt of a d»'ht hy an a«l!ninistrator is not Hulhcient to take the case out of the Statute of Limi- tations; there must hv an t-xpress promise to pay, and if there iri more tluin one administrator, sfinhlf that the pro- mise bIiouUI he hy all of tht'Ui. (HhhHW Sentll, Trin. '/'. IHBa. Vk Ii4>ii iiiiiot hv iiiii«l4' t<» bur Kliiliil4> 4ir fJiiii- tall4Mi%. See Limitation of Actions U. S.— .44liiii«><»i4»n 4»f Tlll4* II) V4>rl)al d4>4*luraii4»ii>». The verhal di-daration of the j.,'rantee of land that he has sold it to a person under whom the defendant claims, is not surticiint to show title out of the i^rantee. /'.'<• v, Totld, 2 All. 2r)l. 4.— By %« ritl4'ii a|i:>'«'4'ni4>iit lu bu). L. havin»» ht-en in possession of land upwards of twenty years, made a written aj^Teenient to huy it from the lessor of the plaintiff, hut, hefore the time of payment, went away 18 ACTION AT LAW li'ftvin^j tin- (K'fciidant in noHsossioii. .iu«l utrttinK tlnit ho ooul.l not pay for tli.- Inn. I. //W./, That this tiKriM-mint wju HI) luiiniHsiuU of title in the ItHKor <>f V.w pliiintilT, anil that li«' mi^'lil rtcovi-r in ijrctinrnt \\itliout any nthfr prtwjf o. titl.'. /*.-<• V. i.ifi:-. 'J I/;. .-.-M. •% Irkii4»t«l<' of l.tMitiiiiloiiH. A stntrnn nt in a p«tili«)n bv dtfriitlant t«) tin* Proltal*' Court, for l«'ltor8 of administration, that ('••rtain land in Iuh posst'Hsion htlonv;»d totlu- intrstatt', on whicli petition lot* ters of administration wtTf granted to the defendant, is n sulTicient acknowledgment of title to the heir of the intes- tate to provent the operation of the Statute of LimitationH. —/' -^ d. Sjinnr v. U'rilni.i, t\ All. 410. «i. On<ii<»e lllddiiiK til «iiilr. A vei'hal olTrr iiy a i»« r>on m advtrM (H)SseH8i<)n of lantl to lea'^e it from the owner, or hidciinj; for tlie land at an auction of it hy the owner, is not an acknowh-d^iiuent of title, within the Statute of Limitations, hot- v. H>isn'ii, 3 All. ir.i. t.— II) l.«-ii«>r. In . j. I'tment, the lessor of the plaintiff ndied on the foU lowing letter as an admissic n . f title hy the d' fendant: " If you intend to sell the place, I want you to ^ive me the I'lrst otTer as scon as i>ossihle : writo me an answer hy the tirst op- portunit\ ; don't stll it to nohodv till vou let m« know, and as to the money it shall he ready as Hwrn as you give a gmxl deed.'* //«///, Not li KUtVioimt acknowled^Mnent of titlo in tijc K-ssor to he suhmitted to the consideration of the jury. D'c V. //r./«H, 3 A'<;t 821. ^(atiiiM'iii ill IVhiioii. l.kiioMile.lKMMMl .if Tiilf. >' ■ Liimtaliun of Actions II. H.—Jhu- d. Spnot- v. Helliioj. \i TlO> %T I.iW. I. CoilMKNCUMKST OF AcTlo.S. II. CoSlUrioS I'KKCEDKNT TO mU.N01S(i ACTION. III. FouM OF AcriON.I n. ItianT OF Immkdiate Actios. ^. Illi.HT 10 I)KTKhMlSE Co.NTIUCT, ACTIOS AT r.AW. 19 VT. SrHI'KNHKtN OF AcrioN. VII. r.K.KoUK KxrillATIoN OF '''UK.I>IT. VIM. FonMF.ii Uk<'ovf.ky. I\. r.Y AND AdUNsT WIIoM M MNTAISABI.K. \. V*m WHAT Maintaisahi.k. \I. NoTKF, OF Action, (I'lvrtiiH tutitltd to— Service of.) \II. .I(t|M»Kll OF ArTlorrH. XI 11. .lolNItKU OF I'aHTIKH. I. CoMMKSfKVKNT » n Mimiimry writ, ami not tho day of tt'Htf, in cotisiilt nd thf c'onnu«nc«ini*nt of the action. Sec Sti I'Jii-iisnii V. Mi-l.rlliin. 1 .1//, !*.♦. 8— TliiM* lli'intiiid. A r» ii>oiial»lf tijiH- niiiit cliipMc httwi-tu ih-nuinil of nioni'y Iield by htiiki holdtT tind coiiuiD-ncctntiit of Huit. Where the rnco for Nsljich money in ih ixiHitttl us ii stake, liftH not In-eii run, tlir stakclioIiUr is » ntitlid to rttuin the money till he luiH a oi'iiortuuity of cniiuiring to whom it tel(»nK>'"; hut hf Iihh no ri^ht to liold it l)t'y(»nd that tinu', ht'cause on»i of tlu' partitH to th«' rucr witlihold.s iiis a.^stiit to till' {tayment. The plaintiiT drposittd I'lOO with the de- fendant as a staki holihr, to abide the result of a raee to he run ()n the ritratorH \vh.os»' awanl should 1m' final. //K, 5 All. f)?". (^mrrf — WlktluT, if (hfmtlant hal lUu Aci, such a tU'clara- tion is not sutlicii-nt afttr Vfr.ln't? IhuL 9 Auaiiiol *»lif'ritr. Casi', and not lnnpa«H. is thf proper roiU" Iv ai^ainst Sheriff for refusing' to j»iv.' a confin-d delitor the h«»MefU of the gaol limits. See CMnell v. \V^•^»lu^, 1 AH. 2')i. See Suj)ni 1. Infra H. AKain«.i Altoriif). Dechiratiou di^duHiii;; sulVlcient eatH- of action in as- Bumpsit. See PU^uliun I. (>0. The option ;^rante.| hy tiie Act 5t> (}ih). 8, cap. *2I. Ht*c. 7, to hring trespass, or caso. is to ht- un.ierHtoo.l accor.jjng to the suhjoct matter of the grievance, and not tlie mer«^ Aac- tion of the party. Set- 7V.*/. m, II . 22. W.j.n v. HnnUn. 4-Tr«Hpti<.r<'t'«'<|(>nt W't'H HhoJlld M' nrliitr.'i- I labour? >«• frnnh'r mill s«rviint I'liltrc roiif riKt 4li*>iiii«>«.Hl u itli- oiil riiii*i«'. St'c l)a!uams, I, 15. 1. — Where a party to acontract disables himself from per- foriDiriK' it, the other jiarty's rij^ht of action for the l)reach immediatt'ly attaehes. (iilhirt v. ('nmj)hi-ll, 1 //'///. 171. «. — May recover for poods delivered under contract for work, where hotii parti»'S have di^ahlod themselves from perfo»'inance. Soe McAult-ii \. (inhhti, 4 All, 52ti. V. Kl(iHT TO 1)KTKU.MINE CoNTKACT. JD«>viiifi4»ii H4>iiiiian'«i %«-hk*'*>* See .lurttioe of the I'eace, II. \\. Shippiuf^' Law. VI. Sfsi'KNsioN OF Action. EK4*4-iiier«>. Actions a^'ainst Executors and Administrators for re- covery uf (hhts. not HJispended for eighteen months. See Kxecutnrn and Adminiatrntorft I. *2. AKr«'«>in<*ni Krt>u4-h of Pri% at<> Acroiiiil. See AiiHiimi>i'it 1. 1. VIL lU'.KoHK Kxi'lIlATION OF CllKOIT. I— llr«'a<-li of %Kr4*«'in4'iit« Wlien goods were delivered under an ai^rct ment to bo paid for by endorsed notes payable in . . . days after de- livery, the vendor recovered in assumpsit before the ex- piration of the time of credit for a breach of the agreement in not giving the said notes, linuni v. Frink, lUr. H»)8. 'i ^l»«'4*lal C'ontrari. Payment to be made after logs driven into boom. Vor diet general on special and common counts. PlaintitT could not recover, as special avernunts hal»ll v. 'i'oJN AT LAW 1~ I ai'iiir i W WW 111 I VIII. FORMEK HkCO%T.UY. II I'loof liniiH fi. nssumpsit for ^ooiIh hoU\ and tlclivorc Julj^'c's (lirt'ction. as not iirovotl ; no n«'W u-tion can bo niaintainod for such itvms. Ii}f v. //.imi7/.»n. 2 Krrr, 511. (^>,,,<. ;.,.._ Whet ht-r th«' plauituT roul.l in Ruch a raso o\- pri'sslv withtlraw part of his ibniau.l from thf consiclvration of thr jurv. in onicr to brin<^ a new action tli^rcfor ? llul. *i l')i>itiriil. A I'iUiy wiio has nia»)ry on account of articles .soM auti iK livcrtti. antl who, in an action brought for the price of such articlrs, has faiU^i to prove huch paymtnts, cannot aftvrwards nuuntain an action of iuil'littdim iisitiinpgit against the vendor to recover back the money or the price of the goods. WiUnn v. l' inurun, i Ktir ."> J'2. :t l.iiiitlhtiti aiifl 'l'<-iiaiii l'oriii«T a|>li>\iii l'\ i!!!aiii arrival of the i^oods ; the plaintilT withdrew the char}.,'es for these floods from the particulars, and the difendants f^ave a confession for the ])al!ince of the account. In a subsetjuent action for these goods, aj^'ainst two members of the I'lrm, on an alleged sab' to tliein sinco tlio former action, tliey set up as a defence, a recovery in tlie first action. Held, Tliat there was no evidence of a former recovery. .!/«»,«* v. dirmfin, /vrsf 7'. 1H71 JikIkiii-'IiI ^afi*>rartioii lor Wroiiu I>oii<>. See Trespass HI. .'». L-nit .\0A1N.ST whom >rAINT.\IN'.\ltLK. I JiKlciiiriK < i-<-ot 4ll«>4-liarKiiiK ll<>l>toi-. \n action on the case will not lie against a judgment crcilitor for omitting to discharge his debtor from prison up(»n iui .iiuitaide .satisfaction of the debt, thert having been no order for his discharge, anil the creditor not being Ugally bound to discharge him. Mcl'ltelivi v. W'ldoii, '» All. Hi>H. *i — Defendant arrested the plaintifT on a covenant for payment of a mortgage thbt, and while he was in custody his eipiity of redemption in the mortgage was sold by the SherilT under an execution issued ou a judgment confessed 24 ACTION AT LAW. to tlie .Icfin^iiint us collfttrrnl srourity for tli.' i>avni.'nt of tlio mortgage <1( I't, iiiu\ was juirclmsrd l»y and conv.'ViMi to tlu' .U'ftndnnt l-y tlio SlurifT. Hil.l, That an th.- urriMt WHS Icgnl, iiinl tho action of covenant was not l.gally <1»'- tt rmimd, nor the debt actually ition, though the mortgivge dt'lt might tlurohy in equity be ex- tini^iiiHlu'ih //w.f. :t 'l'eiiaiil<» ill < oiumoB. liahh it U) hiH co- in common is lialflf in aHsumiH tinant when he sells more tlian his bhan* of the coininon property wiUi the consent of his co-tenant. Shuw v. drnnt, lUr. 111). — Whether any and what aetw ^hortof the (hstruclion of joint property will «ual>K- lUie tenant in ooiniuon to HUhtaiu trispass against his co tenant. See \\'ujniu$ v. W'hxtf, iWr. \r,. S — One ti-nant in common cannot n^covt-r in axsiunpHit ligaiubt his co-tenant for th«' valu»- of his share of eonuwou pri>perty unUss a sale hy tht: co-t^uanl ht? actually proved. Ihnjh V. Tixrilor, J3irectiou in Act to th«- culjector of nion«y atis* nged, to imy momy collected over to tho Chamhtrlain, tlu- Char-.j- herlain cannot sue the ColKctor. Action must be brought by Corporation. See Cnrj^iratu.n <). H- Feiire Vic%««*r. A person employed hy a fenci- viewer to npair a divis^ion fence under the Act 1 Wm. 1. c. \i, on failure tif the occu- pier to make the repairs .iir» cted, may maintain an action against such occupier for the amount of such repairs. .Stcf^ H90H V. Stnitnii, '1 Krrr T.TO. fiJ *'^^»>?*- ACTION AT LAW. 24a Thedt'feiiflants, iiiidor the Act 7 Win. IV., cap. i!s,\vcrel)y tbodfiioral Sessions of the IViicc for the Coiitity of York uppointed a oominittef of iimiia;.;einent for tln' orection of ft lunv ^Miol ; and in that capacity contracted witli tlie plain- tilT, l)in(iinj4 theinselve.s and their successor.^ as such, on hthalf of th(! said county, and sui)scrihing Huh natnts " a ooniinittt'o on hehalf (»f the county." //-/'/, Tiiat tliey went mere iii^ent.s for the puhhc. and not personally Hahlo on thf contract, liltir v. linhin-i'in, '.\ K>rr [H7 . Piiblii- Olti< «r. Srr Tuhhc Otlic.T. Bitrri»r and < oiin*i«>l. No legal remedy to recover remuneration for profes.sional aerviccH. Ser Attorney. lO— Mlii'i'**" lot lial»l«> for ii«-ul<'<-ttntf to iirrcHt on iii«>*«ii(> |»r4»4-<>«»«» iiiil«>««s plaiiititt lias sii«.taiiii'k of Il4»iis4> o( AsHriiihl) liahl*' to prr^oii riii- pio)«'«l l»y liiiii. Sit' As.sump.sit III. t:!. O'lhirn v. Wttmnrr. VI Joint 4>4-<-ii|ii«*r of I iind Tr4>H|»u«>«i. A per.si)n working a farm on shares, and occupying part of the houst' jointly with the owner of the farm, has not such a tenancy as to prevent the owu^r of the farm from maintaining trespa.HS on thu land. Sre Landlord and Tenant 7. 13 lliiHhaiKl ai*» It4>|>r«>*><>ntativ«* 4»r \Vil4' l.4*Ka4-). If a le^'acy is beijueathed to a married woman who dies before an\ act done by husband to reduce it into possession. he can only maintain an action for it as rei)resentative of his wife, though he may be benelici^illy entitled to it- <\>Uin>i V. Cihir, "2 .1//. Ilt3. LeiCtK') ra>Mi4'iii |4» F.«4M iit4»r l>i»4'liarK4> 4»t l*arl). Sfv Assumpsit III. II. 4'on*«lal»l4> 4'4>rlifl<*4l fvvs. Sie Criminal Law. It I*ay4>4>*»4»f'n4»l«> n«>iiv4>r>' by onr. PlaintifT and two other persons being payoo^ of a not© indorsed it generally, the others giving plaintitT authority to collect it : plaintiff put the note in the hands of an at- toruey to collect, who, without authority, compromised with V 246 ACTION AT LAW the uii\k»r. //,/,/. Tiiat til.- aK^HMnriit to collect tbo nmoun t of the n<»to having l>f*'n ma I,, witli tlio i^lftintifT. li* t'i> uld sur th.' att.irn. / u'rril\ (It lltT payer |/l I'ail < oiiinn i«r«. y for nt^: Hutch W'fruco witli >ut jominK th. i4<>», -ll«".« **•»*"»• " f f oitlriK-t l») %< - lion III naiiH* "t «•••• \v \Vln'n sotiu' ol a iiuiiiIkt ol j ith f i f »r a broach of tli • c^u\ ant othor contri'-tors. th.-y m\y mu- tni.-t in th- nanu- of all tii- p:^rt'*... /•«o«-r v. /. -. /. AloK'^cv was U-.iu.^atli.a tu th. i.hiiiUilT to hr pai.l to bo uai.l to' hor fatli-r hi trust for bor. anl to bo i»vit at in- terest bv him for her iiso till sb.' altaino.i oi«btoon yoarn of aK'o ana lb. n tbo amount of prin -ipal and intorost to bo paid to lur. The logaoy not bavin« b, m paul to bor father —Ihhl, I'hat tbo trust was at an emi wbon tbo phuntitT attahu-a oi-hteen years of a^;e. an I that she Imd then a Vested right, an.l couU sue for tho b-gacy. lMin,j»U,n v. 17 Joliil l>r|Mi*ii I>. silli ul our |mrl) Hur* i» orn rl«lil A receipt of money d. positca in a i»ank was uivou \v\ tiio following worab: "UiCt.'ivea from T. C. and 11. C, to Ih^ drawn by either of them, or the survivor, ?1 Hn> for wbioh we are aocountablo with interest, on rocoivin^ 15 einj,' satisfi- .1 that the person who applied bad authority to receive tbo money, declined to i»ay it. 1*. C. died three days afterwards. //«/.t'Ji. S'tthAmtr'w't, Tn'\. 7*. 1^7'K IM ^iiriiiicl ^i'r%aiit < oniriiti \t orkluruilicr I'urt) — Adoplioii ol Hi'r%it-<-s \%ui\<'r <»f turl. Sie Assumpsit 111. 15. lif-inUltu v. C>t}k-hin'{. I!)— I*«>ihI li.r«'prr~\oI liable l«»r Ioh% ul lo|{% It) otorm. See Pond Keeper. *iO— < uiitrat-i iu fraud o( third pnriir«. Seuibk -An actiuu cannot bu tupported on a contract -^ ACTION AT LAW. 24c ' j^lftintifT. l»o t joininj^ tli" ;:.. r» .(//.a2t». riict h> %«-- Ihir rr>ntriiot Hl.HtMlt of th" I of th • roil o 1)0 pa ill to 1)0 put )it in- :liti'«»n vears iitorcst to bo to hvr fiitlirr tlio pliiiiititT imd tiuii A lAvtuiintttn V. i\ oiN rtul*! tilviu in tlif II. ("., to tH« ) for wliirli !'» (Ijivrt no- applied f..r \ that tiu< tht.' mon«-y, aftirwjirilf*. thf rnoii* V r I'ouM n >t riM.V. 1M7(>. liter l*Mrt> 'I. l>) otorm. ;i contract iniidp iK'twt'on two persons in fraud of tliinl parties. Sliiirp V. McKirn, '1 K^ n '>ll. *2l — i*»i'ti4'» ii<»l ill Htiilii quo. N'V As:,UIU|'Sll 111, I'J. }'llhJI-> V. \\',lt.'i>ilt. *Iii — Olili^t'cs of 1)011(1 payaliU' b) \ or IJ, or cillier, can- not l)r sued in nanu' of oni' unKss tlio other is dead. Hiinii V. f H'lninihiiiil . I I//, *2ti7 'i:t lii<«ui-iiiirr Loss (o u lioiii |tu)sil>l(' — liilri-«'«>| - \ssiuiiiii«-iii «>l I'olir). '"'( f I USUI itiici . *It ^arri<>4l uoiiiaii lliisliaiKl iiisaiii'. Tin auhuiul due I'roiii a Iniurdrr uuiier such circuni- Ktancrs, v-sts in the woman as iier separate! pro[HTty, and will not pass to th<* hu.shand's represmtativis onhis death. .1/..// V. I.i.iht, 1 H,i>,. i>7. 'i.% Widow l>o\%4'i-. A widow i-annot maintain action at law for dower in land in which luT iiushand liad only an cipiity of redemp- tion durm^' fov. rtuir. S.c />-., v. KHtiihroiiL.i, t .!//. 155. 'Hi %iirv4*>or of l.iiiiil»4>r. A.TSumpsil liv s hy a .-^urvivor of lumhi-r to recover liis fees against the t'lrsl purchaser after the survey, under I Kev. Stat. cap. IMJ, see. 10. F>-rnuA„n v. Mnlrhrt,!, (\ (//, ;{ \:\, '21 4>\ «-rH<'rrs of Toor l'au|M-i-s hronuhl into I'arisli. Tiie overset-rs oi tiie poor not liavinj.; uny corporate rights, cannot maintain an action a'.^'ainst a person who Lriuf^s pauiH'js into the luirish, wlio hccotue char^'eahie thereon, .sucli act heinj^ no injury to tho ovi-rseers indivi- dually. (;ill'-ir V. l*hillij>^, 5 ML '111. *iN — \%aiit <>l liit«>r<>«»i. ConvrViince by oiu* of renuiinder men, devi.sees divestinj^ liiniself of intt-rest in tho property, ea mot sue for cause o( action which aro.se after lie had ceased to have any interest in the property. See Will. 'IH, Knoiip v. Kni'j. '2U 4;o\vi-iiiii4-iii 4»(lii lal l.i:il»ilit>. 1 defendant was one of the coniiuissioners for tiie con- struction of the Intercolonial llailway, appointed hv the Ciovernor-General. I'laintilf had a ctjutract with the com- missioners to i^rade the statit)n {^'rounds at M, according' to a Certain plan atul speeitication. While plaintitf was per- forming^ his contract, defendant directed him to till up a cidlar where he was working, and upon the railway 24r/ ACTU)N AT LAW. gronn.ls. vxliioli n .piir. .1 uttm.linK' <'» '»» «"»'''• »»"'• '^■'*'* "'^^ iiichulr.l in plaintitfs cotitmct. I'laintilT statrd In- w-ml 1 do liio work if d. f.-ndiint would jmy him. and dofrndant. slntid that he wcuild. and t-dd him io do th.> work inuno. diiitily. On lu'ini,' ii|>i)h»d to uftorwiird;^ for tin- pay. d." fiiulant tol.l i>!iintitT ho would s.'.- tlio KnKin.-or in char:;.' iind liav.' the amount put m tin- rstimatt-s. to ho paid hy tVovcrnmtmt. Th.' amount. Ijowovor, not Jxinjj paid, jdaiM- tiiTsut'd doft-ndant, prrsoually. and was non-rtuit.'d. IlrU, (hi motitm to s. i asi !»■ tho non-suit, por iMifT. .1.. that, as in the cam- of contracts witli puldic aj-^-ntrt. th.« presumptiim is that tho jnihhc faitli or tlu- juslici- of tin- Crown is nlii-d upon, and the work in .pn-stion was do:»t< for tlic puhhc. and dffi ndanl in ordt-rin^ it dono was art- inj: within the scope of his authority as a railway commm- sion«r. lu'diility. antl that th»' non suit was tlureforf ri^'lit ; hut, pt-r Fisht-r, J., that, as the contract was entirely vrrl>al. it should liav.- lM«'n hfl to the jury to detennint . under tlie dirt'clmn of th«- Jnd^je as to the relationsliip of thr partits, wlietlur tin- defendant hail personally contract' «i and aj;ree«l to pay for the work. Siinnur, Assif^mee. vVc, v. ('lnnuUrr, '1 I'. ,( H. 17.1. :tO tt-lioii aKiiiiiHi Sir^iinl of 4 rowii ^iiinniar> iip- plicalioii to %tu\ |>r«»rri'flliiK*>> T>i fiudant was sueii for tr« ^paKs to land claimed to h«- lonj,' to phiintitT, hut which luul hem taken and used for the hittrcolunial liuilway. I).-fendant was Supi-rintrntlmt fur Ciuvtrnuunt iiailways. anil an application was matle for a stay of proctedin^^s on an athdavit alh'K'inq that the allej^ed trespass was conimitteil l>y him in tin- employ of the Government as Huch Superintendint. and not other- wis?. Plaintiff, in anhWtr. swore that the action was hrought against the deft-iuhint for periionally tnapawHin^; on his land, and denied that tho laud had beeu legally taken hy the Government. II'U, per Allan C. J., and Fisher, and Wctmore, J. J.. AVeldon, J., difts,, That the Court ought not on a summary application, to stay tlie proceedings, hut should leave the defendant to resist tlie action hy plea in tho ordinary way. Milncr V. liryd'ji-v, 1>. d U., 118. ACTION AT LAW. 25 ) ii|>. U) be- Ht'd for ii-l pnMuiHi'H and pullinj^ down a chimnt'V. Such an act nicnly amounting to a dcttT- niijiati<»n of the tenancy. lir'uin^i wlirrrj/titdu, 2 /'////. 115. ll'I 4 oiaiiilitrr of I.MiiHii<'«i I*««iiii4> ^liitl«>rs rrlaliiiK to oliiritil iiiill«>*.. Jielil, liy Wrldon and Wctinorf. J. J., (DulT. J. diHH.,) tliat a suit in ('([uity cannot be brouj^'lu ak'iiin.^t a coinniittor of a luiuitic's t'stato in rospi'ct of mattorH n dating to the dirt- charge of tht'ir otVicial dutii s, witliout the leave of the court for iluit purpose I'lrHt obtained, the coininittoe being subject to tile control and direction of the court ; and where a suit was conunenced witliout such leave, tlie bill was ordered to be taken otT the tiles of the court. lh'vrh>r v. Oiilton. Oul- ton App't.. and Deveber He.sp't.. 2 /'. .(' li., 5M3. 33 l.i<'i>ii*»4>«' of 4'romi Land oh*.trii4'tiiitf roa«l not liabl<> to tr(>*tpa<<«H4>r on land. A trespasser on Crown fiand cannot maintain an action against a licensee of the land for ol>strui'ting a road tiirough it and preventing the plaintitl from hauling away timber illegiiUy cut. lyt'jhtnn v. linhnn, i) All. 4-40. Brra4-ii and daniaK<' in lif«>tini«> ol t«'«ttatoi'. iSVc Covenant 1;}. Jiteh v. Iiarl>>u\ Bail***'— l\« u. S4-tor 4>i < n<>it4»ni«« - l.4» no r4>4tor. See Trespass, i, U. li'.ctur, dc, St. Oetujt'ts Church v. dntiile. €'4»notablc~ l.iabliil)'. S>-f Constable. K&4*liibUK4* of (j>ood)»~Mub«*4>queiit account rt'iidered— l*ruuiif»4^. See Assumpsit III. 6. Grant v. Aiken. InfMiii Railfl<>ution hy. See infant. 2 26 ACTION AT LAW. .V'u ">i (^lrr of •.hip I.OH*. b> i«-ili««.or jSVr Cjirriir. JohusUmf v. (V.jm*-. :»ljiBi«»lriHr nniiiu Milhoiit Jml-illrlloii. See Trespass V. -2. S^ny v. Om//. iSVf Jubtice of rLiico, III. <>Ui«-<>r fliopliKiul %tillioiil « iiii«»r. Sir Assumi'tjit III. 33. Jnyliti v. I>iHuhon. ri-4>Hi(l4iii <»r « oi|M>ralioii Miliir>. See Corporatiuii 27. Fellvui v. AUfft MmiiKj Co. I*:iuiiri' lt<*|>l«>\iii for ivroiiKful lukiiiK oT |{oocldK4>r> of oHii nioiiry. *SV«' Assuiiipsit III. U>. Sr,)tt V. (iarnrt. It<-Ki**li'ai' !n<'4li<'Hl Act. .S'iiiaiiHl«iiiiaii ItiKlii (o inaitiiaiii rji-t iiik'iii u ith- Olll (I<-Illitll«»«-o<»ioii. .SVf Will H. l>>-t (i Ltiiuijuttnif v. Carrie, IC<-4'toi- l*art> |4» iiiaiiiiiiiii iri-*>|»jt*>*>, I. n. lUctur, dc, <;/ St. .Stijtlun v. 1 urt,l>>tt, >hi|> ou ii4'r iit,'iiiti<>t iii«>iir<-r J«>tii«.oii 4'oiitrit»iiiioa. Sec luhUiuucu iiG. Marks v. H'.j/«i»»i. ^4'aiiiaii. .S't- Seaman's Wages. iHiii. Sli'iil<''*» toilet* CourtHof JusticuH of tho reaco, cstalilishocl iindei the Act of 1 ^Wm. cap. iiJ, arc not CourtH of li-'conl; ano»«f/v. ir<>')(/ro«A-, 3 AV/;- r).5l. *i l'<»i-«>iKii JikIkiiK'IK' A forcij^n jud^iijcnt is not a debt of record, Init only evi- dence of a debt ; ii\u\ the Hitnple contract on which it in founded i.s not nuriie*! iu it. J-'injim v. W'ludlaii, Jj Kerr :i No action will lie in this country on a forei^^n judx'ment, if the defendants were not resident within the jur- isdiction of the fop'i>:jn Court, and had no property or agent there, and wore neither served with process in tlie forei^^n country, nt)r deffiided thr suit ; though they were served in tiiis country with notice of the pendency of the suit, and the judgment may have been obtained according to the practice of thu foreign Couit in similar cases. ( '//'■ v. S„, '2 All. tJ41. ^fMliinioii. .S'V Seduction. I'uder the Act of Assembly \Vm, I, cap. 1, sec. 11, a person st-rving processes directed to the SheritT, but without any authority from him, is precludetl from maintaining any action for his services. Ihrrin it<>n v. Lnjiin, 1 Kirr 1U.>. Where claim is simply for salvage Hervices, and no (jues- tiou of apportionment arises, au action at law can be maintained, although where apportionment of the amount among sev<'ral claimants is asked for, it is proItaMy a mat- ter exclusively within the jurisdiction of the Admiralty Court. Ci'i>p» <•^ at., v. lieuil *t. ltii*.lai-«l.> lloiiil 0%«i-«<-i«> iiiriiriliiu liiilillll) VIoiir) not iMliiiilh piiiil. Tlu' I'lmilition itf a Itiistaniy bond was to indt tnuify tlit> jmrisli iii^'iiinst fill iliai>;iH for or on aocoimt of tlit- nupport of tbi' cliiM. ill*' ovcrst'tTs of tin* poor haviti^^ tintrrrd into a contract for tln' HUpport of the ciiild. and in('urr«'^h tlicy Inul not aotnally paid over tliis amount of nionoy. li'-nuii v. AirhilxiLi 2 /*. .( //., '2M. )-- lilliiiH'lioii. olifiiiiiiii. (lid**!- lor. no iill«'Kulloii of iiii»r4>|ii-«>»4>iiliiii«>ti of lii«-|«>. T'k' sirvlon "f !i (*"Vy of -,\v, i^rdrr of injunction. •'V.ji ;ii'>U'4li :il!c^tMl to lta\'- l'<.-n nii».l«- tiinli«-ihnn rt nl. a /''»./. V.l ^ ( oiiiil> 4 oiiii JiKlKillfiil. An action may hv brought in the supreme court on a judgment t)l>tained 'n a County Court. l>,irf. r v. ( ''irli^t ,t .— (iood*. J«>iii%oii«ii. An action for goods jettisoned will lie. although the master has signed clean bills of lading for tliem and aiiould not have stowid them on deck. .SV.- Siiipping Law. 16. C'lmeron v. l> »t r\«M'iilli>ii ri-4'iliior lor lovs of itoiiils hy •tlK'llll. S' • l',\.'Ciiti<>n -JO. Mitl.ir v. J t.iniil, %<'roilil iK'lloii ^lii)iiiu |ii-«»v«M>tliiiu^ tt lirii \ <'\ :ilioiis »r iii*uliK<'iil> Sft .">i ODlld Aclioil. 4'4>ii««liil»lr for H«T«ir<'H < rrlillcd lc«>«. >'<•>• ("rijiiiiml Law. 4|ii>iiiliiin Hci'iiil < oiitiiirl i-4'i>riii |»iii-tii*<» «li<». iil»lliiU iIk'111%4-1% <*% Iro.ii |»i'rloi-ai)iii<-«'. Str ABHUiniHit III. ^'i. M< Aul-y v. UoMi . i ML .j2t». Ai'lioii •)f (It'ltt to r. i'ov«-r ilii!im'»('s will not Ho. .SVf Firert. llaiiiiiKi'o HpiiiiiiiK lip i-liiliii. I'lirty eiimiot wplit up liin oUiiii for (lam 1'.?«'h. hikI pro- ccad for a part of tUo trtHiia-<.s ut one tim \ arvl part at unotht'r. .SVc TroHpasH III. i). Lirln v. (/(//m. See Soparatf i'itloa of .\t*tionH. XI. NoTicK OK Action — pAuriErt kntitlkd to — Skuvice of. I l*ollr<*. The Police Act 11 Vic. cap. 1:1, sec. '2:1, onacttvl that in uU actioiiH to be coiumcnciil aj^aitust any peraon for any tiling don*' in purrtuanco of tho Act, notico iu writing of Huch action HhouUl bo given to the ilofomlant ono month be- fore the commencement of the action. IleM, per Chipman, C J., Cr.rter, J. and Street, J., In an action brought for breaking open a house, that the defendants (ono of whom was a policeman, and the other acting in his aid and under the orders of the Mayor) were entitled to notice ; the police- man, because he acted in tho buna nd>- belief that he was in the legal discharge of his duty, and the other defendant i ' ■';■ I ■] t H iHy ^- ii * -'f.*r^"> 80 ACTION AT LAW. because he acted boua/uU^ in aid of the poHooman and undor the beliif tlmt he had authority to do tiio act comidainod of. .V.'.VfV/,,,/ v. (olir«>iii:iii B«Ii«r. hoiisi li«lr«. ol ••nbinK'.ion ol qiir-iioii lo Jur) . In an action against a policeman, if it appears hy the plaintitfs t vidtncc, or it may rtas»)nahly be inferred from thf facts, that he acted undtr a l>oiirflou liitf. \\hirt^ tiu' (hfendant JKcame th«' own* r of property with a dam on it wiiich overflowed plaintiffs land, In* was hvh\ to be entitled to notice before acti(»n brought, li'h/'.i v. Han tin, 2 Ihin. 27. .1— ' Kllrr of IVarr llcqiiisii«>«. of >oti l<4*a*»oiiiil>li> t;roiiiicI«» of Ix'lit'l*. l>efendaut, a Justice of tiio Peace, commenced a trial, but being required as a witness in the cause, anotlu r Justice took up the trial, during tho examination ; after which, tho ilefendant resuuied it, and during th<- latter stage of tho trial, committed an assault on the plaintifF. lltUl, That though the defendant at the time he counnitted the assault was acting without jurisdiction, having no right to resumo the trial under the Uev. Stat. cap. I'M, see. '2H, still if he had reasonabb' grounds to believe that he had jurisdiction to do HO, he was entitled to Dotico of action ; and that this (juos- tion shoub! have been left to tlu jury. i:iuinnir v. McMon- (igle, .1//. 203. H— Ju«»tl('«* of l*<'ii«-«* .^«'i-oiir di>«*oiifinu- iiiHT I'Irol iioiiic avitilaililr— It4*qiiihit4>« 'l'4>ii«l«w ol tim«>nd. A notice of action for false imprisonmont was served on defendant, a Justice of the Peace, on the IDth March, and ACTION AT I, AW a writ issueii on tlu- ITlli April. Tlic I'laintifT took out a riilr to discontimu' that suit, jiiul j^otan ftj'pointiiuut to tax the costs on the iHh July. On tlio Ttli .lulv. a Htroiul notice of action was served on the «1« ftndant, ami a writ issued on Monday thf Wtli Auj:;ust. Held, Ist. Tliat if the second notice \v;is had, the phuntitT C'.-::hl avail himself (tf the lirHt uoticf. notwitiistandin^ tin- discontinuance dftlie suit com- nuncrd tlk icon. 2nd. That the srcond notice waH sutlicient, thouf^h it did not allege that the difendjiut liad acted ma- Mciously. — he havini; acted, citlur cntin-ly witiumt jurisdic- tion, or in cxci'ssof his jurisdiction. Hrd. That though the last day of thf month's notice expired on Sunday, tlu- dc« fi-ndant had not the whole of tlu- following day to ttiuier amends ; and tlur»fore the action waa not couinn net d too soon. Iliitih V. TiOjliT, 1 I'lKj. 3y. tl— <'onHtiil»l4>. A constahlf appointed hy the Sespions under the 1 Was. Stat. cap. oG, and acting under the Justice's Act 1 liev. Stat, cap. 137, is entitled to notice of actii»n. Uohnht tu v. .Irjii- 7U(iu, () All 12. 10 A constable appointed hy the Municipality in an incorporated County ia not entitled to notice of action undtr 1 Hev. Stat. c. oG, in an action for faist* imprison- ment under an execution ihsued hy a .lustice of the I'eaco. nuii(tr\.M.td,i,:r, Inn. T. 18Gr>. >VrActai Vic. cap. 19. II 4'oitHial»lr |'iilM> finiMiounitiriK lliiil\«a) %€|- l.iiiiilaliuii. The Act for the regulation of Hailwayfi, 21 Vic. cap. IH, authorized the appointment of constahlea within a certain district, and gave them all the p..vverH and priviKges in- cident to the ollice of I'olice constahleH hv the i'ortland Police Act, 11 Vic. cap. 12. By bection 4u'of that Act, no action shall he brought against any person for anvthing done under the authority of Die Act, unless it i.s commen- ced within three m..nthH. The d-fendant, a constahje ap- pointed under the Act 21 Vic.cai.. 1«. arreHttd the plaintiff on a charge of having committtd a breach of the peace ACTION AT LAW. 83 within tho district. Il'Id. In lui action for falso impris- oiuncnt. that tin* (lefcnthint was fntith'-l to tlio ])rot«'ctio)i of tlu' Act 11 Vic. cap. 12, sec. U), and tliat tlio action must Ik' hrou^ht within tlir»'(> months. li«>loii4>r. 1 1 Xhe .\ct 18 Vic. cap. 1 din i,) the appointment of commissioners of highways, and direets that no action shal! be brought against any person for itnythinl<>«i. Tho action of replevin is not within the Act 18 Vic. cap. 80, see. 15, whicii recjuires a month's notice before an action is brought against any person for anything done in pursu- auco of the Act. Sterlinii v. Joma, 2 All. 522. 10 N«>r%tf4* of. A notice of actit)n to a Justice of the Peace need not bo served by tlie Attorney of the party who oues. See Chilton v, Poudl\ 1 .1//. 578. 84 ACTION AT LAW. 17 Any person to wlioni suoh a notice is }^'iv<'n to sorvi', is the agrnt of t\w party f'>r tli.it pnrposc. Ihi.l. IM— Pinro of nhodr of riniiililt'*> ittono). Tlio nniut' and plaoo oi aluxU- of ilic j.laintitT's Attornt y need not ho oniiorsod on the luick of tlir notice : it is stiflii"- if nt if it appears on any part o{ it. U All. tiri. 41— r<»limnaii *«i|. St<>|»|i<-irs Polit c la<»n»tt»l»l<'^ h'rouiid .liir}. hy the St. Stephen's r.)lioe Act, 27 Vic. cap. ',:,, Bee. I, polic. men appointed umbr that Act w.-re to have " all such powers, privileges and advatjtages," as any constable ap- pointed by law iuis, or may have by virtue of the common law, or any Act of Assembly. Section 3 authorized any policeman on duty t . arrest, " without warrant, any idle or disorderly person whom he shall have just cauKo to huh- pect of having committed or being about to eonuuit any felony or misdem.aiejr."— Defendant, a policeman, arres- ted the plaintiff witliout a warrant, on information given by E. that the plaintiff had feloniously set Gre to his barn. ACTION AT LAW 86 In trespass for falao imprisonnu'nt — Held, Ist. That lioliconun nppoinUd under the Act were entitled to the lionefit of the provisiona respecting not'.co of action }^iven to eonstiiltlrs l»y 1 U«v. Stat. cap. ^>{\. 'ind. That, in order to (htcnnine wIk thcr the defendant was entitled to notice of action, it should liave hcen left to the jury to find whether the defendant, at the time of the am st, hon< dtly he- lievcd, and had reasonahle ground for leliiving, that the jdaintilT hail committed a felony, for which he was liahlc to he arrested under the Act. Murphif v. Eillfi, 2 Ilin. 817. MV-'Volirr of Action f.ivi'ii Uy iiii<-ri-lifl«al«Ml Atloiiioy. Wht n the Attorney who gavo a Justice uf the reace notice of action as reipiired hy Uev. Stat. cap. 121), sec. 8. (consol Stat. cap. 1)0 sec. 8) liad not paid the Liinary fees under 22 Vic. cap. 28) (tonsol Stat cap. Hi) at tlie time of giving the notice, hut paid hefore the Writ in the cause wan issued, the Court refused to set aside the proceedings. The name of an Attorney on the notice is sutVicient as comply- ing with the reijuirements of tlie Statute, if the person is an Attorney on the roll. The notice is not any proceeding in the Court. U.tmore v. ll.irdnt.}, 1 1\ i( IL StlO. 'i3— .4llorii4'>*«. >aiM<' on "\ofi<«' ; It is sullicient if the Attorney's name appear in any part of the Notice. MiGiUery v. (hiult. 1 I'. .( J}. Oil. .>uli4«' Ki\ i-ii l>> iiii ttloi-ii«-> ufM» litiHiiot liikcii out lii% ('<>i-tifl<-atr.* See .\ction at Law (^Notice.) *il Kr|)|«%ln I i<.li4>il««. A«t :ll Vir. lap. til. The Section of Act \M Vic. cai>. 01, sec lU, re([uiriug Notice of Action does not apply to replevin. Nor can the want of notice be made avadahlo as a pKa iu any way McUoutin V. JUttM 2 I'u>f. yO. 4A~ !V<>«c*>sity <»l «'\|>li(it ^>iat«'iii<>iit !\uti4'<> |4» Jii%ti40. A notice of action against a Justice must state the cause of action explicitly, and in a case where the Justice issued a void warrant, directing the conRtable to take tbtt i 1 :{() ACTION AT LAW. l>IaiiiitfT's g<)(>.ls auil in (Iffault to tiiko liis liody. uivl'T whiclitho Coiistablo arrostfd tin- i)iaintitT. altliou^li tliort- wore gocnis on which lie mij^ht liavo levied, a notice nlh'^: inga joint trespass ajjainst tlie Justice antl Constable wa-- lielil (lefectiv*^ in that it did not clearly sot forth the .liistice's liahility. The notice should r\j»licitly have stated wiiat the Justice did and what the Con-«tftMe did, so that the Justice might distinctly know what he was accused of doing under the warrant, and not tnixtd up generally with wliat the Constahle did. M-dilfrif v. lianlt, 1 /'. ,( H. Oil. XII. JoiNl>ER OF ArrioNS. Smee the Act 21 Vic. cap. 20. see. 5, the plaintitT may join in th' im .^olaratiou. an action for trespass jig>tt v. McL^t'j.rm, All. oOli. .loiiidor orC'oiirt*>. See Pleading IV. l>«'i'liirtilioii. See Supra HI — also Pleading 1. XIII. JoiNDEIi OP PaHTIE^. I— C'oiilrart .loiiii or Mev«>ral— iiiiliiKuii). Wiiere the interests of a nuinl>er of persons to a contract are distinct and stparate, and a covenant made by them is not unmistakably joint, hut ambiguous, they must be sued jieparat.ly. Therefore where J. contracted with A. and eight other persons to raft separately and deliver at a cer- tain place, luml)er which bid,.ngt-d to tlum individually, for whicii tiie latter agr.-ed to pay <;.> cents per thousand ; and it was als.) provided that il any of the parties failed to pav the amount owing by theiu when due, J. could sell sutUc- ient of the lumber belongmg to said party or parties, to ACTION AT LAW. 37 [iiy tli(» aniomit due. //»•///, timt thiri was a Ht-vtiiil con- tract on tlir part of A. an«l tlu- other ownors of tin' luujlicr, ami that a joint action woiiM nnt Ho a^aiast tlu-ni. Tho lan^ua;^t> of m'Viralty. nion^ than intcroHt, ou^ht to lit- rfliocl nti. Trill' iiiiil St-iir.'*. V. .Ithi'itnn t't >il '.\ I'nfl*> 4>f^iil4' of H|ii|» Jiiiiii 4>u ikt** - !>«'4-4>«»«iif t «»| J«»iii4l«'r<« «»t all a*« I'liiiiif itln. ('. L. and (i. th' jiliuiititTs with S. •!. (i. were owners of the Si'hoont r Aila. They all united in executing a cttrtili- cateof sal«' to thedrfendant, under theprovisioiiH of the Mer- chant Shipping Act. under which the veSHtd was Hold. The plaintitfs having; brought an action a^'ainst the dtfendant, without joining S. . I. (1. with them as phiintifTs. for their ^liar«- oi till' pn»eetds ot such sale, and of the outwaril t rei^ht. Jt was h» Id thai the contract Nvith defeiulant was a |\)int cttntract, and that all the owners should lie joined in tlif action a^^ainst tlu- defemlant. C(i)npi>i'll rt iil. v. Jom-s, 1 /'. ,(■ II. »;.'.»;. .\ rai-ii«-*> «-4iiii|M>*iiii|{ tlriii IC«'a*»oii!ihl«' h4>li4*f'a*» t4». Win re plaintitTs had rearfonahle grouiuls for Itelievin;; that th(> three defendants 8Ued alone composed tht; lirni. it was lu Id sutlicient to join them as defendants. St'c I'Uading 11. oo Mrlhtnnld v. Cuinmimi, ct ^iiii %ii4*iiafinii l*4>ii«liiiK ^nit. Wilt re tlh' plaintitT, pending a Huit in equity, makes such an alienation of his property as to render the alienee a necesHary party to the suit, he should apply to the court to have the latter made a party to the suit. SemhU, The defendant when he hecoiues aware of the alienation might api>ly to the Court to stay proceedings until the proper {•arties are before the Court, t'raser v. Peuitt. l>iintt^ Appvllant, Frn:er, He8|>ondent, 2 /'. d U. 73b. »a;SieiiiSii)jj.j^g|^ 88 ACTION ON THE CASK. Puj«*rH of \of«> ijiMM'tiu'in lo 4 «ll«Mi, iua«l<> l») on«*. See Action at Liiw IX, 11. />'rn/ .f Ilut.hinson. Panics nilillrd to brinK i. iice Tractico in Equity JU, Jours ,vu{ irit'e v. AilLinH it iil. At Tio:> oy Tin: < %*»i:. I. By AKD AGAINST WHOM MaIXTAISAIU.F. LiaIULITY. II. NKOLUiKNTE. Ill NriSANCE. IV. Obsthictions. I. By and AGAIN.ST WHOM MuNTAINAliM:— LlAlULl TY. Sec Action at Law. 1— Colicrtoi- ul 4 iiHioiiiH .i(-< idciiial l'ir«'. The Collector of lli-r Majesty's Customs, who has, aa 8ucb, the charge of the Qufeu's wanhouso, is not liable to an owner of goods dtjM)sited therein for a loss to huch gouiis by accidental fire, although he may bavo nfuscd to o[>vn the warehouse and jurmit tluir ninoval during the lire ; if in so rcfu.sing he ha.s acted uudir a sinsc of duty for tho i^eneral good, and not maliciously with intent to injure the plaintiff, or in a negligent, wanton, or arbitrary manner. Klrh V. Smith, 2 Kerr 187. 'I l.aiMliortI jiiitl Tetiaiil— l*ir«>. In an action by a landlord against his tenant for neg- ligently allowing lime to get wet with the tide, in conse- quence of which the landlord's property was burned, the jury were directed that to render the defendant liable he must be guilty of gross negligence, and that being aware of the danger of getting the lime wet, he uegUgeutly stored it without taking ordinary care to protect it from the water ; but that if he had taken such ordinary care, and it got wet *«ffia f ACTION ON TllK CASI-:. ;j'.) liy an uiuisimlly liij^h title, lie would not be li;il)lo. Held, tlmt, tjikinj^ it ultoK" tinT, tlic direction wiis correct. I'}>f"ii V. rin'ivc, 2 All. iHCi. :i Ki'KiHiiar 'V|«>fll«-iil %4-t IMriKliiiK. l>y the Act 22 Vic. cap. IH, sec. 11, every pt^rflon in tlio Trovince poHsesseil of a medical dej^n^e or diploma to j^rac- lice medicine or Mirgery, from any college in (Ireat I'.ritain, Ireland, I'unaila. Trance, or the United StateH, authorized to j^rant the same, shall, on payment, etc., he entitled to he n'K'istered under the Act, and hy sec. 12, no qualilicatiun .sluiU l»e entered on tlie register, unless the Registrar is .'satisfied hy the projter eviiU'nce, that the person is entitled to it. Ill hi, in an action aj^'ainst the Registrar for refusing to register the phiintitT. 1. That the defendant was not li;ihle unless he acted maliciouslv ; and that an averment in the declaration that ho wvnnnjulhi and itijnriously refused to register the plaintitT, was insulVicient. 2. That tile mere proiiuction of a diploma to tlie Registrar, was not sutVicient eviihnce of the authority of tht> college to grant it : the declaration shonld have averred tlmt proper evi- denc(' of the plainlitT's title to registry was tendered to the lr, that no appointment could bo made under sec. G before the 1st June. Ihul. t lii<»4M' of'< ro\«ii l.tiiidH %%'ronK Do«>r. A licensee of erown land, with authority to cut and take awav timber therefrom, mav maintain an action on the case against a person who wrongfully cuts the timber, in con- secpience of which the licensee sustains damage. Jicckuitli v. MrPlulim, 2 .1//. 501. •"i ^ihcrill'— Kr%-rri>ilonur> lut«>ro«t oi Plulutifl. Phiiutitr leased cattle to T. for ten years, at the end of .w4U'9«iu^&^Nt 40 ACTK'N ON riii CASi;. ^^llu•h titiu" T. was t.» nivc up ll>f nittlr. ..r ofA* r- ih Hon- «/,,«,/. in ns iiood vowdnwu as at th<> dato of tli.- Iraso. 7/-/./. Thht the i>liiiiititr lia.l in. nbsolutr r.-vrrnionary iiitrnvst ill tlu tattli. an .liKluiiK III rn'ililoi IC«liiHiii lo «- l.<|iiit!il»l<- sali«.larlioii \rlioii on llii- « a-r no! -"— laiiiahlc. Se<' Ai-tion at Law I\. 1- M PhrUm v. II;U Ihird r«i*.oii. The defendant hecanie tlu- purchant r of a cpiantity of timher iyin^; on the dose of i". L.. and agreed with him to removi; iht- sanu l>y a crrtain day. T. L. nohl and con- veyed th«- land to the plamtitT. who called upon the dt-f.-nd- ant to rcniovf the timher ; and the same not having hctn removed at the time agreed on hetwieii T. L. and th«' defundant. the plaintitT proceeded to remove the Hanio, and incurrtd ixpensr in so doing, which he required the »h fend- ant to luiy. //././. That no artu»n cttuld he maintained hy the pluintilT against the defendant for any huppostd hreach of duty in nut n moving the timher; the only gr(»und vif action was on the contract, and did not vest in the plaintitT. 80 as to he enforced in his name hy reason of hia purchase of the land, line v. llanlan, '1 Kerr, i5!i. 9 T«>iiaiiiH ill < oiniiioii \% n%u- Duiiihk*'**- The saws, water wheel, and mill gear, fixed in a saw- mill, and the cog-wheel of a grist-mill, the property of two or more tenants in common, are a part of tlie inheritance, the damaging or taking away of which, except with the intent to repair or replace them, is in natun- of waste, for which one tenant will be answerable to his co-tenant. Linton v. Wihnn, 1 Kerr, 223. ACTION ON THK CASE. 41 In an iirtion on thn cm>' for wiiHto, tho dainii^^rs aro 4'()ntint'd to tiio aotiial injury tl<>n»' to tho prfmirtoft. //'«./. lO %llrK<'4l iirKl4'<'t of lliity 4 iiicf i:iiKiti4'<'i' of Virv l>«-l»iii'l iK'iil -IC4>*>|>«Miilriil ^ii|»«'i'i«M'. Thf corporation of tin.' city of St. John arc hy law autliori/.tMl to cstalflirtli a firn (It-partinont, and to enact by- liiWH for its j^ovcrnint'iit and niana^rtiicnt. IlrlJ, That hav- iuf^ (lono this it was an eiul of thoir rosponsihility, and that the chief oni^inoer could not in case of a liro ho conuidered the servant of the cor;, ration ; but as acting in a '/»H, in an action aKainsl the chhf . ngiu.tr that h. had a n^;ht to exercise his jiulKnunt as to sena.n^? an vu^mv o thr the plaiutitTH proiurtv. una that having actea /«.,.../../. ana to the best of hi« jnaKMiu-nt in thr nuitt.r he was not h Jlnni* V. Mortrr, ,t nl, 2 i'";/. H»5. IXrliiiutioii loimol Tirs|Mi*«. or «»•»#•. Si( Action at Law, III. .SV.- ritaain^ I. 75 <;..r./«'» v. Citu "/St. .I»hn. iirnnU'v Klitlil lo iiiukf M jiHt rour^r. iV. Deea V. ^, M'Knulrirk v. I'nniui. «»li4>i-itl >ol iiiiikiiiK nrrrM. S<< ShtrilT, 11. Curran v. linkuith. |'n\«iiliiiu*»l"r4l!rroiii «-i«'rnllnK m rll of r«'«.l»lMlioM. >.( Lunaioi-a ana Tiiumt. VII. o. Allnuich v. /'.-/tmi :ni»f«'a»aiH r U suit ol i:* **.irtiii^(). Ill tile proj^rt'Hrt of the ruft down thi^ rivt-r, it hecnine liont, wliioii rt'ndrml it inon> ilitVicult to iimnftj^e. Krlil Tliiit tliou^'h tlu5 (IrffUilant hviu^ only a carrhT, niij^ht not lie liablf for tlif improper construction of the ruft, he wan houihl to use that care in the niana;^ein»'iit of it, wliich its lualfonn.ition reiKiered .it';:e9Hnry to avoid injury, and that the jury were properly direo' 'd to consider wlietlier he had done HO. Uml. 'i AllrKiilioii -Injur) 4'iiii*i4'4| l»jr iirKliK«*iir«*. In an action for injuriii;^ ntts set in a puhlic river, hy runniii)^' into tliein witli a raft, it is sutlicient to aMe^'o in the ihchiratioii that the injury was < lusod hy the nej^ligonco of the defendant in navigatinj;; tiio raft. Wollidnptcr v. Fole>/, J .1//. 1«;7. 3 *iiiritl4 >«l Priirtlrp €*l«»t of %rtl«»H — \<>KliK<>iir«* In- H'lil lmuiiil«>i*ittl l*l<*iiu, 4 .1//. 4135. i:vi*»*»«*l <'olli«»ioii- lnd«'niiiil)r— Prr^noiplivr kiio\« l«> of uiila\« fill iwt italiflruliuii— liiii^lit'd liubllii) ol i»riii«-lpal l>uiiiaK4'«t. Srllo\t iiiK lnii«l. A., tilt' owner of land, throuj^h which a river Hows, is on- titled torecover dftmages in anaetion on the case from H.,tho owmrof theland adjoining, situate lower down the stream, for erecting a mill dam upon his own land, which caused the water to How hack ujion A.'s land. Smith v. Srott, 1 Kerr 1. The circumstance of A.'s being present while the work was going on, and himself assisting as a hilumror in the trnjiloy of B., is not conclusive evidence of a license so as to estop A. from maintaining such action ; but is for the consideration of the jury, in connection with the otlur cir- cumstances of the case, paiticularly such as tmd to shew- that A. could not have been aware of the elTect of the dam- The extent of the license, if any, was also a (juestion for the jury. Ibid. V» Ih'ul tt— i:i-f l>aiM :v|otlK**K»r iiii«l ^ortK<(K«*<*. A mortgagee of land through wliich a stream llows, is not lialdi- for an injury caused by a mill dam erected by tlie mortgagor in possession, theiugh the mone-y for which the mortgagL- was given, was lent by the mortgage-e fe>r the pur- pose e)f building the dam. Mi\\\iujht<>n v. Fnuer^ 3 .(//. 247. a-ErrciiiiK lUiin fi to Jury a% lo rriMiion t oiiiiiiuiiiiK* and Injur). In an action for ov.'rtlowing lan.l, the plaintiff alleged the injury to have been done by the defemlant's raising a mill-dam, and thereby overUowing more land than the dam origmally did. It appeared, on crobs-examination e>f oi.« of the defendants witnesses, that he \m\ worked the mill for a longer time during the summer than the formerlowner In ai the plain defendan -//./r<'nt mannrr, and at d.ilTaiii]iK4>«. ■.iniitiitlon of Arftnn. In an action on tho cas.' for nuisanco in ow rtlowing the plaintitT'H land iiy a dam, whicii wha oroctcd l»y tho ili'fentlant more tiian six years Ix-f.^ro hrinfiin^ tho action —Iffhl, That tho effect of a pica of tho statute of limita- tions was not to bar tiio action, but only to limit the re- covery r)f dama}i;es to tho last six years. Connnm v. M('Lriloii of ^l«>aiu .nill-IUId*'!!*-!* DuniiiKr «ur- plU«tHK«>. In an action on the case for a nuisance in erecting a steam mill on laud adjacent to the plaintitfs dwelling boi'se, the evidence of persona living iu other adjoiniug 46 ACTION ON THE CASE. l.mnisfS fiK to tho injurious t'fToot of tho st.'am mill upon tliem. is admissiMe. in onlor to shew In- ni'ocssiiry inftT- <»nco. tlie (laniiij,'!" dono to the pliiintifT by the eroction. No otlior (laniapo nood hv ^licwn thiin tho ftbridi^'onimt of tlio iilaintitTs iMijiunu-nt in tlu' occupation of his prfniiHOH. The jiidj^incnt will not he arnstod hrcausf in oxw or mori' of tho counts annouinco to the plaintiff's t«'nams. a, well as to himself and family, it* alleged : it will hv deemed a surplusage. Ji'irhnc v. Ktiuu|>air«> not krrphiK — ove where the tide rtowed, and tfcat the plaintiffs might maintain an action against the defendant for obstructing them in the driving down timber, by the erection of a pier and l»«»om in the river, though the river, there, was within the defendant's grant : Such rivt rs may be private property, ani*nn v. Mc.Mtmti-r, 1 Kt-rr 501. H .\ll rivers above the flow of the tide, which may be used for the transi>ortation of proixirty, as for floating rafts and driving timber and logs — and not merely such ACTION ON THK CASE. 47 jis will Ix'ar boats for tlio aecoininxliitii)!! of trav* Ih-ra — are hi^'liwavH by watrr, and litibjt'ct to the pul)lic use ; anh*>lriirliuii lo iiKlX >*i><< n^i' l*r«<»iiiii|>lioii of grniil - QiKolioii tor jiid|{«>, not |iir> l>iiiiiu|{o<». .SV< Evidiiici', VI. /i')/j'/ V. IUi(]itli'y, •%~|{iiniiiiiK •'Ircniii KiKtit of mill o«t nrr fo ii«i><* flic wntvr. In an action on iho caso for obstnictin)^ th«' flow df water to itlaintiffs mills, tho facts proved and ndmittt^d on tlu- trial wert', that plaintiffs land was granted in IHM.Mind mills had lucn (iri'Ctod on a titream tht-ro ujiwardK of thirty years n^^o. lie lairchascd in iHiYJ and rf paired the mill. l>efend:int (nvned land further up the striam ancl built a mill and dam in lH7i, and at certain H«'aM)n8 wljen gates of dof( ndant's dam were closed for the purjK)3e of raising a head of water to work his mill, sufticient wat»'r did not llow down the stream to enable the plaintifT to work liis mill. It was admitted, defendant -if he had a right to stop the water and use it for the purposes of his mill — ilid not detain it for an unreasonable ti me IfrU, Per Alli'n, C J., I'isher and "SVetmore, J. J. (Weldon J., dissenting^ that defendant had the right to detain the water as he had done, and t)ie verdict was, pursuant to leave reserved at the trial, entered in his favor. Knth v. Coretf, 1 /*. d- li., 4tM). Aii«-) >Va). See l)eed, V. 1. Lenrxt v. Annfttroyi'j. Ereclioii of dam in pnlilii Miriini -> liilrm Hon i<» r«>- «.lraln |M>r^oiis not ol»«»trn« lid from d4'«»tro>iuK dam. (SV( Water course. Fi«»li«'rj - i:rlr. S,'c Fishery. " Crown Grant." Hurlihy. v. Loggie. !\iiviKaiion i:r<'i tion ol Boonit. See Boom Co. Wa> OhHirnctinK riKlit of «-urriiiK<> and foot wny din- linKnKh4>d. See New Trial, II. 51. McliobertM v. McBride, ACTS 01- PUOVINCUL LKGLSLATUIU:. 4'.> lllKlit of <'or|M»i-iilion to rrinov*' 4»l>*»iriirfiou -Jus |*ii. hliniiii. .SV.- Crown (rniut, 11.8. lllrKiillt nilliiiR liinhrr- rr«»\« «i l.ii<-«>iiH4M' ObHtriirliiiu road >ol liiihit' for 4»l>*ilrii<-lioii. N.'' Action Lhw, IX. '.V.\. WTH or PKovi^riii. i.r4;i««i. iniii:. Sir British N. A. Act. I Intitxirntofl l*arty rxcriitiiiK l>4'«*d. WIktc a (Icctl cxecutotl by a party incripiil)lt' of con- tractin).^ as the result of intoxication, might 1)0 avoiiled hy reason of the inaiUM[uacy of conniiKration, and the t,'rant(>r was at times sohrr an, he must have heen fully infi>rm«'(l of hi.n ri^'ht, and cupahic of acting on his own hehalf in order that his not repudia- ting' the deed during his lucid intervals shall amount to ao'- ipiiesccnce in it. ./'<»»•,•» tuiil it'ifr v. C. 'i f'oiifriK-f — Viirluiirf* in - Dt'ffiidaiil roiidii«-l II%i- Set' Assumpsit, HI. 42. FosIkii/ v. liaxtcr. 'I MutAutnvnt drhlor. In «>al4> 4>f'laiid. The ac(piiesconce of the judguu-nt debtor in a Sheriff s sale and suhsctpient possession of the land by the purchas- er short of twenty yiars, though prtsum[)tive t-vidt^nce that all the necessary proceedings have beou taken, will not give a title to the purchaser by estoppel. I>t>e dem Ua:cn v. llazeii, 3 AH. HI. t The plaintitT claimed fifty acres of laud under a deed in fee from his father J. li. in 1K22, of a trftct of four hundred acres, of which the fifty acres were part, which deed was subject to a condition that J. B. should receive and itxiMaSmi 50 ACQUITTAL. fujoy nil the prolits and tinolmiu'iits aocruinK from thf land (luriiif; his lift*. .1. 15., in ouUr to pay n debt, al)out two years after the conveyanot' to the plaintiff, and with Ills consent, caustd the fifty acres to l>e 8old hy the SherifT, the plaintilT hid at the Bale, and afterwards aj^reed with th»' ]'urc'hase» upon a division line between that and the re- mainder of the land. There was no proof of any jud^nient or execution aj^'ainBt J. B., or of any advertisement hy the Sheriff under which the land was sold. Jleil, That if the jdaiutiff had a jiresent estate in the land at the time of the Sheriff's sale, his acquiescence in such sale would not di- vist him of his estate. ]h,c v. Jiiutrr, 3 AU. 23i. /(— IMHiiiliir \«orkiiiK under iiduiil'<» ilitliii of right. SiC Railway Company. 6- RoiiiidHr> lln«>«M>4'oiidilloiiHl UHsriii to ruiiulu||. Sec Crown Grant, II. 7-Pre«.*'ur«' of pluiiiiiir at cmm tion of dam. >'(V Action ou the Cast, III. 1. Smith v. Scutt. Aiidaiiio»— i:iifr) of Judirmrni. No Costs, VI. 1)7. McLaihMin v. U'i/jion. « osm i>«>priviii|{ icqiiliKd I>4 friiduiit or Appllrailoa -TIlIM' of. Sec Costs, I. 17. illodiiiir Allov%Hiire ol-To ii< qulll«>d dcfriidauti .Vtv Costs, VI.J>8. A»joK!%:vii:\T. Of Fro«« odiiiit^ l»ow«rofoM«. Jndirr. Sec Justice of Peace, IV. 8. Anji>iT:»iE^T. See Pleading II., 4. McLean v. Ph.rnix Im. Co. ADMINISTUATION. r>l See Exocutore, \c. An^i\i**Tic%Tio:\ iio:>D. So' Bond 1). Anill.\l*«TUATOK«<. Sec Kxocuiors, A:c. An^lK%I.TY. I — Jiiriotdlrtlon. On motion for a prohibition U) the Court of Viof-Adinir- alty. //«/./, Tliiit that Court Ijuh jjirirtiliction undtr tin? Stat- ute 8 (Jeo. I, cap. 12, and 2(fto. II, cap. 85, to tntortain asuit in rrm, instituted hv tlic Crown against pine timber seized as rut on Crown Land witliout license, and to proceed to ad- judge the forfeiture and condemnation thereof, although there has been no prosecution for the pecuniary penalties! imposed by the said Acts on persons cutting or carrying away the same. A prohibition was accordingly refused. The (Juirn v. Hi2 pifces of timUer, liir. 410. 4— l*ro<-c>t'din|[«»— l*rop«*r iu«iK«> of. Wlien a prosecution is carried on in the Court of Vice Admiralty, that Court is the proper judge of the mode of proceeding applicalile to the case, it being a matter of prac- tice which, if irregular, may be corrected ui)on appeal, but is not a ground for prohibition, especially after judgment has been given. linjinu v. Iieverul>jf, 1 Kerr 58. 3-MnlvttK«>. .SV.'V||NMI4».\N. AU%AM4;fr:.'riK-«T. See Heir at Law. hWM 62 ADVEUTISEMKNT. Ai>vi:u*ii: ro^«»i;*»«»io^. S>c Limitation of Aotioijs. iiMr.iiTi«»i:'ni:'iT. l-.«iihriirt'<»«»iil<- \uiiib«r«M«»l l«n l»lnnK *»ulr n«l in \iiliiiiil4'rfiHliiK. Sft do. Ki ri V. .JaniirsDn. 3 i;\rrnIor*<. fl«'rd \nid:i%il l\ldi'Mrrol idvrrlUo- 111 «> III. .SW Kviilence IV. "2 H. } > . \. liounvan. !>» \. Th.mp- $on. 4— *»aU' ol I-Hiid l'o«.liiiK >«Hlii'«». Set Lioensf. U<>r v. 'J'tcmr;/. rulilioation in w<» kly nt\v»j>a|»trs for thrtf thiys rannnt be ma(U' as notice for tljr«»- ilays. Sre Eleclion LaNv. lltrhtrt V. UnrniKjtnu. 5— Ordnfor *»rTvl« «• b) piihlh alictii In . W'lh 1 » !i writ of ftttHrlinimt rannot l>o .• rvt'd |>«'rfwinally, and an tirtlt-r is niailv for Htrvici- by i-ul»lication in (i»z«rocftHlings should bo givin to i-nablf 4bu dtfrmiant to ai'- pear, and that during the wet:k he had a riglit to appear, and that the terms of order were not sutiblifd Hh soon Vk& one publication took place, and that on tlie name day tho order was made. ColueU v. linh,rt/s>>tt, 1 }>, ,ili, 4Hl. AII'll>iVIT. I. Al IHoHITY TO TAKK. iUrouK WHOM swons. II. Im II LINO. III. In i^llT[rI•L^a Cxsku. IV. Pautioular Prusonh. V. Jr-RAT. VI. Mihckllam:ol'8. AFFIDAVIT. 68 AUTHDIUTY TO TaKK — BkFOUE WhOM SwoKN, I. Ilrili<«li 4'uii>»iil. All alVhlftvit iniulc in a foreij^n country, and duly jiutht'iiticat«(l hy tlif o(>rtiJioato of a J^ritisli (,'onsul, is sullieii'ut to authorize a Ju(lj»»' to make an iordor for bail. />r.S('onding IV'btorH Act is issued, nuiy bo sworn before tlio Attorney of pttitiuning creditor. Riijinti v. S(>iulm>ni, 1 Ifini. \W.). | An aftidavit sworn i)eforo a Judf^e of the Supremo Court of Nova Scotia, wliose si^'naturo is veritiwl l)y an atVulavit made in this Trovince, may bo read in this Court. Kirk V, Anxlt'ji, I Krrr MOl. I % rritiriitioii of ^iKii>itiir«>. Aflidavit of due execution of Tower of Attorney to denuuid costs made in Nova Scotia before a Jud}^e there* Verilication of his si{,'nature necessary by athdavit made hero. Ste Fnuer v. llr 4'oiirfH. A commissioner authorized to take atVidavits to bo road in the Supreme Court has no autliority to take an atVidavit of the servieo of an order for review of the proceedings on a trial before a .Justice of the IVace. See lleijina v. Mr- intogit, 1 II,tn. 372. tt <'oiiiiiiiH*tion4'r, 4'oiirt of Baukrupl«-3r KnKl»"rvi« 4> of *iuiiiiiion«> hrfnrr *ir«»«lon tako tlu! aftiilavit. Tlie (Jurrn v. (i>>Uiwj. 2 I'n.i. 385. AfliirliilK'llt in. Win r<' an nttnohiiunt Ihsuoh with tlm writ in the cause tlio ntlidiivit iiiav Ik- sworn lufort' tho attornoy who i8»uea till' writ. I>'('<.«»<•//. rt al 3 i*/w. 081. The Htlulavit in Huch etiHo Hhould not he entithnl in thu ciiiise, tiiougli if 80, it miiy hetrejitod an siirphi.siigo. lb. ^ liiforiiiiifioii !>oi Criminal Jii<»iii-4*«k. In an action for slantU-r for Htatiti;^ tliat tite phiintilT had nwurn falsely, it apptaritl that the pn^ceeiliuKH in which the alleged false swoarin^; was done, wore before two Justices, on an information for unlnufiilly killing cattle. Iltil, That this hein>^ a mere tre.npass, the Justicts had no jurisdiction *,o admniistt-r an oath. Giiuowj v. luiucitt, 2 iV/. 12H. U roiiluiMl 4'ivll < oiiit itfflii«' of iwo Dcrriidsiiim. In an application hy one of two d<-fendants for relief under Insolvent Act. 1 \\m. IV, cap. i3, the affidavit was intitli-d in the name only of one of tlu- defendants, the ap- plicant. //./ ill Conn. Where an api)Iication was made under the Act of As- fiembly « Wm. IV, cap. 11, ss. 11, 12, by a Sheriff against AFFIPAVIT. Off an Attorupy, t«) conipcl liiin to \u\\ tl»o SlurifT's fceH in ct-r- tain HuitH in wliich the writs hud not l)oon served bv the SlicritT, mid tlio ntVidavits wvrv entitled in the name of the Sheriff a^'ainst tlio Attormy by name. IfeU, Tliat the nfti(hivitH wt'r(( improp^'rly cntithd, th(»re l)einj; no such cause in Court. I^runj v. Ilnur, ;i K' rr MH. ,.| AHithivitH used in niovinj; for a rule nm» for a mandanniH ar.' irnj^ular if entitled in a eauHe. htit the rule will ))»' disehargeil withoutoosts. lirijiihi v. JiiHticiH or Ynvk 1 .1//. IMI. * 1 VariiiiHM* ill drorriplioii of l*lulii(ill«». Where the title of a causf described the plaiiititYs as " trustees for all the en-tlitors of the estate and effects" of an absconding debtor, and the athdavita Herved on the plaiutilT with a view to the dischar^^e of bail, in their titles describi'd the plaintitTs as " trustees for all the creditors, etc." omitting the words " of the estate and etTects," held sulVuMi'nt. AIUadii and utlwr^, truAtet'ii v. li-thin-ion, 2 H'tn. Kil. •1 ^eviTiil <'iiii<»<'H NaiiK* riil«* iiio«<<«l lor. Where tht' same rule is to be moved for in several causes, the motion may be moved for on a single atlidavit, entitled iu all the causes, liroicn v. Trfiiltolm, 2 .1//. 515. tt 4bhr«>vliitloarrou', 1 V. Si IJ. 311. H An atlidavit may be read, though not entitled iu the Court, if it api)«ai* to be sworn before a Commissioner, Supreme Court. Kerr, tv ptrtc, 2 Ptuj. 62. Cotter v. Jiroun-ll, 1 Puf. 35li. :l 1:1 56 AFFIPAVIT. 9 An afiidavit tMititloa "In tlu" niatUT of an floe- tion." llt'hl, nuTo siiri>lusam\ per AlK-n, C. J. Kf'/c, fr p,irtt', 1 r. iV 13. r>. 10 An alVulavit used on tlir part of tlu- .li lon.lant iu moving; for costs of tlu- ilay, lu-ing i-ntitUd " Stack ntM. llichanl V. Cotton anil Kliza V. Cotton, hin wift-," not al- lowed to be rtail. i'ntUm v. Stuck, 2 /'».'/. VM. I l-€*]inii«>lirr prorrH** \fll, Scf Attacliment U\. Whtttctwri v. Ilnhnt, III. In rsHTuri.AR Casks. I - Uy ^>iir«>ti4'*» on l.iiiili B4»iiil. lk)tli sureties on limit l-ond sliouM join in application for relief on etpiitable grounds, and collusion with pruicipal denied by l>otli. Sre GtHHluin v. Mnrroij, ',i All. .liiri. •i Should state that application iH made at the ei- pense of bail, and without collusion. .SVf lirailjord v. FaiUni, 3 AIL -107. :l— T« hold lo bail liilrrrof Tloiir). An allidavit uf debt, statinj^ the defendant to be indebted in i:i()0 for j)rincipal nion»y paid and iwlvaneed I- th< plaintiff for the defendant," and in l'5<> for int'*-' .#nthe said principal sum,'" is bad as to the inte out the causes of action being separate, the arrest w stand for the amount propt-riy sworn to. SimmU v. Siiwmd*, I All 468. t -To sot a*>i«l«> J II «1 Kill ('II I. An affidavit to set aside a regular judgment and let ft party in to defend, must give a clear statement of merits. Jiippey V. Austin, 4 AIL 77. I I l^hin I' ■\\ Wheth.r Mi two (uit of f swore to lui ■'i 'I'o «.<•! il On an a the name o his " iiaiiie i atlidavit in al'atement f a ^eeiirify .\ deiuai as to ritpiir state in iiis was not awi ton V. i'<> iImti* iir<> ««i>%4>i-iil . .) 'I'o orl ii**i«lr iiri-4'«tl i t'l'ltiiiil) u<« to iiiiiii«>. On an a|»plio!itii»n to tliHcliarj^r a ih'f«'n f«ir ro«»|H. A (Ictiiand of |iarti(-ular.s is not such a Bt>-p in the causu as to re(|uire defendant aindyini^ for security for costs to state in liis atVidavit that when h«- demanded pariicuhirs he was not aware of the phiintilfs residence uhroad. ./o/ IIK-lll 4>l « OHi*. alli«li«- \ il •»lioiil«l Hialo* Ih4* |>ltir«* uImti* ilniiiiiid wns Illik«l4-. .S'» (• Altachnient IW. linjini v. Ihliney. S<< Attaeliuient 2it. (\iini>l>cU v. '/'■"/4-«*«i<«if) «if^liitiiiK «% Im'ii <°aiiH<' ol a<-li4>iE a4-ri-ii4'4l \% 4>i-4|h of Hialiil4' ~^4>\4-ral |i>irlii4'i'«t ilU«la% it l>> «»ii4*. In l^^luni^ an allaehinent ini ier the A*'t 37 Vic, cap. 7, it is unnecessary that llie atlidavit on whicij the attach- ment issues, should shew thai tlie cause of action accrued iifier the p.issing of the act. (,^«t' now C jusol. Stat, cup. 42.) It is not necessary that plaintiff should swear that he IS "apprehensive" of losini^ his debt, but he may use ejuivalent words. 58 AFFIDAVIT. Wluri' 8ov«^ral pnrtiiors niT plfiintilTH. An fttViiiuvit for altaoliimnt ni»«lf l>y oiu' is suOiciMit. aiii<-. i'laintitVimist in his nrtiiiavit for j.ttufluiunt in an action on a note sit lortli '. '.V.H. {»— HiiiiciMciii of « ail'** ul initni I'aitK iilai ». \\hir< an atiicia\it for an atta«hnu-nt nndi^r thi- A<-t :i7 Vic, taj'. 7. stated that il« ft ndant wa« in pluintitT in a ot rtain sum upon a contract 1m arin^: date Ac. win r< bv plaintitT airr* eii to npair a Idiildinj^ for il» ftinlant, and lor < rtrM. fl^Mirc; dence itnr;th attach] in nioiii V accouiii !>' din- ( An iii'tion, 1 < n(ir«(l SJM ct of ft is til'- ;,:roi I '11 ill a,, I in r» i)d. lO 4 :iiiH«' aiKl ^aliiit* ol i« iioii %iioiil«l l»i' <»c| om Kill ol l.\< iiaiiur l!ii«lorH«>i'. Thiintill iishUcd lie 'Utachujeut under " riu Atlaclr.nent and .Vhtditioii of In-j .isonment for I), hi Act. ' ajiaiij.>>t (h • fendant. a.s endor.>i r ol a hiil of exohan^. ; hut the atiiU<'n V. SuuUn, a I'utf. 210. II~|{««>I«|<-III'«- o( l»«'friltlaiil Vll^tlroi • i|ill«>ll ^«-|llllii out III fik'iir« %. In an alhdavit for an altachnuiil, the defnnlant wa deserihetl 'is of the piirihh of Lincoln, whtrean he reall;. lived in tin' parish of liurton The dates of the notes^ lor the Hino!i»it 01 whicli the attachiuent inbUed were btatetl ii. AFFIDAVIT. 59 fi^niiTS. //<•/'/, tluit lu'itlur thi- misdescription of tliu resi- deiUM' nor tlir st.'it«nutit in lij^nrrs, instead of wordn at itiij^tii. nlTorded ^Mtlicimt {^'rounds for setting aside tlie attacliiiient. (iiini v, Alr-.tu, 1 /'. .t 11. .").")."). I'i «»iifli4-i4>ii«-) ol iftl«lii\it. In an atVulavit tor Jitfaeliincnt for a certain sum of money for goocin sold and delivrr* d, money lent, and on an aocount stated, it is not necessary to distinguish how much i<^ dui' itn t acli account. An athdavil for attachment set out several causes of action, and th • phaintitV statitl that no av'^inont iuid heeu entert'd into, wherehy no attaclinniit shouhi issur in r< - sprct of " such r-ni.<'' of action." If'!'l. insutVicii nt. It is unnect'ssary in an atVidavif lor attachnifut to state the j,jrounds of phiintitT's apiirehtu-ion ol lo^in;^ his drl)t. Ii'iiolsiiii V. ( y ( '••nii'U »7 .//.. .)' /'»'/. TiiSl. (jifiin' — As to etlect of r«f»'rt'nce to particuhirs ann«xed in ri iith riii'^' atVidavit unctrtain. //-. An atlithivit for an attachment madt- hy an a^'ent is in tliat rt sju'ct m>otl if it desorihcs the deponent a.s " aj^ent " without aUe^in« tliat h< is a;4ent. The agnit may state liis own " apprtdn-nsion that unhns attachmiiit is issued tliv phiintitY will l<»s. liis di-nmnd." Tlu' statciurnt that no agreiiiMiit was made wht-rehy an attaohmtiit should i>nUt in rt hpict oi such " causf of actiiui " is not sutficieiit. win r» tile allidavit allej»»'S sevi-ral i-'uisix of action. Per W. tnioit . ,1. liithin tt ,il V. 'I'iii/l,>r, 1 i'. a /,'. *i(is. II. \ifi«lii\ii l<«-<|iii»ii«>«. Before an attaoliwent can issue uniler the act 87, Vic, cap. 7, there hliould he all athdavit of the plaintitV himself, statin.^ tliut no u^reeint-nt was lUt* r< d into wherehy no uttaclin:»'nt should issue, that the attachment is not sued out ft)r tl:e purpose of harassing d« hndant or to delay or dt fraud his creditors, and the appr» hen.iion of plaintiff that h*' Will h)se his d< uiand unless attachment is issued. H* •60 AFKIPAVIT. Aiui if sucli iin alVKliivit cau \y a tliird pfrsoii, it must 1)0 shown tliat lie is a«»'"t «f tl>'' l'l>t»ntitY. tliat ho hiui \ho K'l'JU'ial eliarjic ar.'i uianaK't'iDviit ( ' hia buHiin-sH, ntiMi witli thf fdct. an«l that the ntla»'h- was full V ai'.niai itisiuii hv his tliri'ctuui. nit nt \va; Thf alVniavit inii>t also -tat.- that I'lamtitT -not tin- (hjiont'ut — is appivhinsive, (No, howtvtr. now, Con. Stat., cai^ 1*2. aUowin^j aK'«nt to state his own appri'licnsion. ' It is net ntcH'Ssary that one jHTson shouhl swt-ar to all tho facts required hy the statut -. hut there may he s<'Veral ntlidavits. Mitirhohl v. Arh", 'A I'l'i. 'Jsn. l-> liii|>i isoiiiiitiil lor «!«>I>| -l>t. :t7 ^ i« .. 4 ii|i. "}, •»«■!. 77. An alVniavit niatle uncier thf " Attaennient aiitateil that tiiere wa-i a probable cause for helieviuK defendant wari about It) tjuit tije pro- vince, and that his absence wouKl materially prejutliee l^laintilf in the prosecution uf his suit. //-r !>lain about to tpiit. the provMitre, and in what ni will be i)rijutliceil in pioseoutiou of hn HUit. i' r iUlchie, C. J., and Allen and Wetuiore, .1. J.. Wehlon and Fislur dJBSeiitlentlbUH. 1«« In an ulhtiavit to hold to bail uuder the act H8 Vic, cap. 1. 8cc. 2, it ia not uullicieut to swear ai the AFFii>Avrr. 61 words of tlu' htatutt'. without Hotting forth the Krounda of the phiintifT's rxjM-ctiitioii of r»'('()vcriii;^ his (h'ht In' Mif dc- ffiiihuifH arrest. I't-r .VUtMi.C. J., an-l sVctinon' and hiitT, ,1. .1.. Wfliii) 1 and Kisher disscntinitihu-i. SfrjihrnHnu \, yjhntt. n I'h'I. 1 '.»'.». MrhifuHli V. liunirtt, rf ni., ij l*,ii}. 'l'i\\. (See iiL-w aiu«'Uthntnt5 to act :W. Vic, cap. \, sec. i!, l)y ('nil. Stat.. ca{). !}S. s.c. I, whioh oiuits the |)rovisiou of ri'jiiiriii'^ yrouiids, otc, to he stat/^d.) 1^ i^iioolvoiil Vrl of IN7.) I>rf«>ii'll v. luiln-rtHoii, 1 /'. ,( n. 4x]. Th>' alVidavit must state facts sliowin^^ that thf deffiul- ant'ti estat'' lias l)«'Com. suhject to compulsory liipiidation ; inert' hearsay is not sutlicient. //'■. 1^ I'o liold to Itail liaHiiltlririK > of ittida\il. An atVi'lavit to liold to hail -tated. that certain ^oods \vlhr»' shipped at liivtrpool on hoard a certain vessel, of NvliJi'h thf thleiidaiit uas nui^tir. to hf hrou;.;ht to St. -lohn ; that the defendant .si;,'nid a hill of hiding to deliver thr said ^oods te) the plaintitT at St. John; that the vosse arrivfd at St. .lolm with only a part of thf };oi)ds on hoard: that the dffendant "'if<;rnn'd tlie plaintitT that he had sold Curtain ^;iM»ds ideHCiihin^ themt helotij^'itig to the plaintitf, of thf value, etc. //•/(/, that this atrll ivit tliscIose Ilt«*ii4laiir4- ot \% ilii«>««*«4-<» -^iitll<-ifiir> 4»l>tal<']iieiil An allidavit of atten»hincf of witnesses, which referred to a Schedulf annexed, and merely stated, "that the ann« \etl contains a true statiinent of thf names of the NNitnetwefi Buhpoaiied, attending and examined at the trial, was held insutUcKUt. ShipharA v. Shei>hM'<>»<»iii4*iif of DiimiiK<*^* In ftsst'ssing diunam'S on judK'uu'nt l)y »l«'ftinlt the drht must bo estal>lislu'(i l>v Icj^'al proof, un aooount sljowiiiK several euins of nionov duf from d«ft'ndant to tli« plaintiff on various transactions, witli an atVidavit of tlir plaintitT that th«' nccount was just autl trie //./-/, insulVwitnt. MitrhcU V. Louth, y,\ l'u,j. 71». *il Palo'iit liUiiii«'tioii.| A I'arty a{>i>l\in^' for an injunc{in, 8 I 'no. '287. 'i'2 liiool\«-iii «ontlii<'<'l>ior*t' i< I ^4M«»iid i|i|»li«-a- tio». In apjdication to court for tliscbarK^ uuib-r " Insolvent confined iNbtors' Act.' tilt atbdavit ujust state tbe reason why fonnrr application In fore justices was refused, Sre Insolvent contimd l»tbtors" ti'*. IIkhjius v. UiimdUm. 43- l^-eoeiiiiiKiit iftltliii it to hold Ui hail olioiiUI set it forth. An allidavit to liuld to bail in an action on a note pay- able at a particular place, must albf^'t- presentment at tbat place. CnxhtU'j v. (i(,r(h>n,C) All. f>'H. til — If tbe note is drawn and payable in a foreign country, by tbt law of wbicb presvutnu nt at tbe place of paynu nt is not necessary to be provKJ as a Ci)ndi*.ion prece- entaidislj tbe pbuntitT's rii^bt to sue. it must b« so stattd in tbe atlldavit to bold to bail, and cainiot \>v sbown in answt-r to an ajipli'-ation to st t ahide tin arrrst beeuuse the artuiavit did not alb-ue jirisentnunt. Ih. «.f.— Afiidat II «»l |>i>hi l*aii Had Kail r«>dii« <'d |i> ainoiiiii |irop4>rl) %iai«-d. An attldavit of debt alKging several distinct and separ- ate causes of action, some of wliicb are w»-ll stated, aiid others n(»t so, is not bad alto^'itber ; but m such case the the hail will In reduced to sum propirly stated. CitshtiKj v. Gordon, All. ft'Ii. *i«(. Iltid of. S>;' At *7. IfHd %«ai See W'.i I .liiror*> Alii. lav evidence a impeach tl tbat one ol tbf vt-rdict llodOSn/l V. ;j that they f( mind to un as a reason M . I //.;{::{. NhrrifToi >" She l-l'ariy — . Allldavi nesscH attel ;J .1//. 505. — Idiiiiiii«.i .S'.v |),.,.d — KuTiiior •SV. I),., 1 !i~ irhiirai Not ad I a no jtower ov amount to r -K4'qiii*tilo«t ol. .S Alliiliivits (if .Jurvnu'ii statitiR that tlioy had roccivcd cvidincf aftrr nlirin^ from tlu? har, cannot he received to impeach tln-ir verdict, Alt'ti (hncritl v. Ihoffr, ('. Ma. 78. •2 On a motion for a new trial, an atVitlavit stating that one of tlio jurymen liad informed tlie deponent that the verdict was decided hy lot, will not be received. .S\r llixhsnii V, C'lrr, [i A'- n- VJ\). :i -.\nidavits of Jurors refused to be receiveil Htatini; that they found the defendant was not in a propt-r state of mind to und'Tstand the 4mI riin«> «>riiiakiiiK. >■' sh- riiT's htfd a. Se,' h.'d I. ;J7. I-I'iirij ltt(>ii«lau««> of H itii()r>. - %4liiiiiii«.irafor 4»ii 4l4>4'4l— i:vi«l4>ii4r 4»t %vliHt. S.r |).-ed I. Ji. -II\4'4nt4»r l>4*4>4l. V" i'r.d V. 7. ■)— irhitrator ittidavit of. Not admissible to sh»w tiuit if they ha I known they had no power over the costti. they Wt)uld have awartU-d a ditTerent amount to plaintiff. .SV** Arbitrations anil Awards V. 3. « %fli4luvit 4»l 4ll%<»4'niliiK Jiiryiiian. An allKlavit of a dissenting Juryman in relation to what passed betwet-n the dissenter and his fellow Jurymen is ob- jectionable, and siiould not be received on motion for a new •rial. This rule would not be applicable as to statements G4 AFFIDAVIT. wliioh look phuM' in optn ooiirt. or in donyinj^ personal mis- conduct imputed to tlicni. Itrtnu't v. Smith, 1 /'. li d. 27. V. Jrn.vT. I.— <»iiii»«ioii ol riii<-«'. When tlu' jurat omittoii to stato the place wlurf an aO'uiavit taken iKfore a ("onuniRsiontr was sworn, the Court would not allow it to be read. H<'iru'ii, 1 A'< rr HS. ^— Sljrimnirr. Omission of ni-znaturo in jurat ci atVulavit of applying; creditor under Ah.sondiuR l>el)tors Act, a fatal defect. Sfe Abseondin-: Dehti^r 1 L '•I n«>^«'ri|»ti4»ii ol 4 oiiiiiii»«.ioii4>i'. If an alVidavit is properly entitled in the Court, it in RUtVicient in the jurat to describe the jierson before whom it is swoni, " A Coinmissioner, etc., Supremo Court." Kx part* Mnra, . :>, K. rr ;{«»«*.. 1 lliileraie I'eiooil. 'Ml. jurat of an atUdavit mode by an illiterate person mufct i>tate that it was read liy the Coirmiissioner to the de- ponent before t-weariu)^. in the tt rm« of tlu' rule of Hil. T. 181.S. Kx p.ut, Irriu','2 Ml. 172. ,'(~0^li*i^ioll of woi'ffH. If the words "before me" are omitted from the jurat of an allidavit. it is a nullity. Lu,.t,s v. Mliinu, 5 All. 'Mu . 6— Ol»liif'ralioii<». If there is an < ra^ufe. obliteratifMi. or alteration in the jurat <»f an atlMavit, it cannot be read ; but where it appoarod, <>n inspection of the adatUvit. that the allepd (d)- literution wa.s a flourish with the peji. foirninf; part of the gi^^iuiture of the Commissioner, the atVidavit was htld sulll- cient, though Huch " tlourish" pa.ssed through the date of the jurat and partially obliterated it. /*<»<• dem Triilcr v. Milutofh, K>iM. T. 1871. 7— Ohjrrt Where been Hervi any objei'ti ual a tibia \ caimot !»>■ 4'oiiiiiii*> See /;. M «lf2l|l>l|| Au atli' Halifax, b. is SUtVu'iel: Scotia. S' city uf Bl. public for t luuik III .V< .liinil ^ The wai applying cr is.sut d initl in tlie proet a Hiijhrgfdfi. I ^iK'Uilli Where 1 rule uixi i,- ntlidavits u^ /•://'.■ V. .V, ,. *i 1 in shewing be given to AFFIDAVIT. 05 )_4>l»|4Ttioii l» iuriit— %%li4>ii iiiii*kt he takni. Wlioro copioH of atVuliivits iti HUj)[)ort of a motion Imvo htM'Ti sorvpcl at^rot'rtMy to nilo '2. Hilary T«>rm. Win. I\', any ohji'Otion intejitk'il to hf inaioiM>ro ii]iiii4> oiiiilHMl -tlotloii i'<*fii*i«>fl for Soo Hiliji. An atVi'lavit purportiiij.; to \tv nworn in tlio County of Halifax. Ixforo a ju(lg»'(»f the Supreme Court of Nova Scotia, is Hutticicnt. without it stalinj^ that Hiilifa\ in in Nova vScctia. So also wIkt*' tin' jurat was — " Sworn to at the city of lUooniin^jton, this iVc, hrforo nw, A. I'-., a notary public for the stato of lUincns." It was ht'ld sutlicirnt. — Ihink ni' S'-ifii S'Otiii V. MxiTi'ti, 1 /'. ,i /.'.. :UI. 9 .liinil %% tint ol^iiKiiHtiii't' %%ai\ri-. Tiic want of a >i>^Miaturt (o a jurat of the atVnlavitof the applyini^ crtditcr. upon whifii a warrant of attachment is ishUdl uniit r tlic Act 'iii (ito. Ill, cap. l:^. is a fatal ihfcct in the proci'c' S'lisnn, l-'.,i.sttr 7'.. Ib'Mi. VI. Mi>. Whore the facta stateJ in the atVitlavit. upon wliich a rule nisi ih obtained are positivelv contra^ cause, the latter must prtvail. I'Alis V. \t;it-ni, lUr. 77. li''!/ V. lUtfniAiiif, Mirh. '/'. IHtW;, *i If tile afVidavit in support of a motion, and ttuit in sht wing oau8e are contradictory, greater credence is to be given to the last atValavit, unless there are circumstances •66 AFFIDAFIT. in the case to tlirow discredit on tlio latter ; thinrofore, on motion of a party for thf nstitut'on of certain r(M)ins in a house. sui>|>orti'tl by alVidavits. wliich were eontrudictnl l»y atUdavits in shewing' eause, and thr proljaliilitii'S of thf case supjiortt'd the last statiiuent, tin* nit>tit)n was dis- misst'd. I hn' iltiu JoltiiKton v. /i<»«', ;J K' ft UK), 3— D4*|>oii«'iii'«. i«|«lition ticiiKirial. The omission <>f the deponents addition in an affidavit of tile Clerk s si<^'naturr to a nn-morial, does not make it a nullity. Srntt V. (innict, '1 All. »",ii|. I — I ii«>iis«.fii| ii|»|tli( iilioii l*r«>\ioii>> %lli(lit% lu. ^^h«•rl' an unsuccr^Hful application is made to a Judge, and afterwards renewed before the (."ourt, all the atVidavits used before the Jud^'e should be proiluced. Jiionloti v. Ihtiin. a .1//. 121. .^ lrr<>i;iiliiritv— Wtiivrr. An irregularity in an atTidavit to hold to bail is waived by pleading to the action. .S.< i'ractioe VI 1. I. M. Plolim V. I.irSnli. i:\<>iii|)li< iilioii l>rool or. Sec Evidence \ II. .0. U'mtwnrth v. II<•< iirii> for < o«ii%. \Miere an application to a Ju.ige at chambers for security for costs has failed on the merits, a new applica- tion may be made to the Court on amemled afVidavit. See Costs VI. F,.st,r V. Amintuj-. ^tlHrill*. <|<«.<| i>,.|Mii> Slurirt. See Evidence XI. 1. I ),„ v. Ji.irlntr. in*>UHl i:j«Tior -.liMlKiiK'iii aKHiii-i Vnrniii l*r<>ini%et». Set- Ejectment 1\'. 2. J foe ,/,;« (JUhert v. Uoe. LoM U«M* Kvidf^nrr. See Evidence Vll. IH. hoe dem Cri4ie^r v. Mrlntoah. AFriDAVlT. 07 7 i:|4'i-|in«>iif >ioii-|>ii>in«*ii( of K4-nt. .VnUlavit of Horvict' of doclu ration l»y living a copy to tho (ioor of hou8«», hIiouM stato the naiuf of tlic tenant from whom till' rt'iit is due. .SVf Ih»- Arm Whitr v. Hot-, '1 Kiivc. There is no arbitrary ruh' that an application for have to tile artidavitw in answer to " new matter, " un»ler the Act l[) Vic. cap. 41, HOC. '10, should he made hefor*- argument commenceH on the atlidavitH containin^^ the new matter. \Vt tmore, J., ilijinentifntr. Sfv {Sirint'ni v. Sninhii, I ('. B. \H'A.) MitrlhU v. .S'rurf/i'T, Mir It. T. IHTI. » Leave will not he j^nanttd t<) file at^idavitH in answtr to " ntw matter" umh-r the Act l!> Vie. cai>. 41, sec. '2(1. where the factH sought to be auHwered muHt have been within the knowledge of the party at the time he niaile luH afVidavit, ainl should have been stated by him at that time. K.r purtr (iilhrrt, 1 I'mj. 'I'M. 10 r<>rtiir) \%li«-ii not ii*>HiKiiiil»|i- oii. I'erjury cannot be a-snigned upon an aiViitbivit taken before ii l,'ommiH.'*ion(:r wiio had no authority to take the atbilavit. Src H^;iinii V. Mrlntnuh, 1 11, in. H7'i. 11 '««'ivi<-« -«<«iiiN<-MiMy of Allldavlt. Whtii the atHdavit stated .service ot motion to have bren i>n I:. W. II.. without stating that he was the party's attorney -//»///. insufhcient. limtm v. Ii trflrtt, H K>rr :W.K ~ ^4*r\if'(> <»| ||iHi4«> OH <«tll(l4>ll( It«*(|lll<«it4' HlUt4>- lll«Ul. AlUdavit of .-ervice of a notice t>f motion "on a stuilent in the otfiee of plaintitF-s attorney " not sufticient, it not stating that the service was at the ollice. Jirr. 'M'l. I'i Athdavit should state name of person upon whom process served, when not served personally. Sn- Handaii v, liudHon, 1 .4//. 441. 68 AFFIDAVIT. i:t llniuii ill iliii-d |»4>r»oii. Sinco niK' of ooiirt. Hihiiv. 1'.. IsT/). Ar» utVidjivit drawn in tho tliinl i^trson cnnnot hv niul. UVZ/ih^/ ♦•.!• piirt>, 3 /'/"/. 'J17. 17 UUUtii II lii«>ol« ciil l4-liiri^7'\. '*l4ili<»ii fo <»«*t iih|(|«> iifliifli- IIM-lll f«M- 4l4'l«Tl ill alll«iii\ il. An nplication to Hft asidt- an attacliniont for dofoct in atVulavit on which it is {^'vanttd. must he hy petition uiuUr the 18th section of tho Insolvent Act of iHT'i. as amended by tho \VJ Vic, cap. 'M). sec M. ('nlu-,'U v. Jioln-rtiton, 1 I\ ,(■ B. \X'l. l>'l— M ai« «'i' ot er, and I'lled on l!ith January, followmt^; no appearance was entered for di fenihint. On the 'JOth January the bail gave notice of Hpecial hail, previous to which it was agreed Ix tween defendant and plaiiitilT, this 8|K'cial bail should !)»■ put in and the amount should he paid within a certain pi riod from the arrest, until which time plaintifT should not tib- tUelaration. On F« bruary l»th, defenilant told plaintilfs attorney he was t,'oin^ to see plaintilT and arranj^'e. On Fel'ruar} Hth. defendant's counsel moved to set aside arrest for defect in afbdavit to hold to bail. //'/Jn('.s}i \, Jinnirtt, 8 Puff. 251. Itt— .^iaitii'H <>l aiil l.r^»oi» ol piaiiitifl not «>iat«'«l in ImmI) 4»f alli4la\ it. Wlien, in atlidavit for ajiplication lor an aliji, 1 p. a- li. 288. I l.tahiiiM AGUEEMKNT. t)9 17 \4lilifioii of «l4'|»oii<>iit. It is sntVicicut to ^:ivc the ii(l(litir)n of a iltponcnt tliiiH: — ".I. V. of, Sn\, foniu-rly u int'inlitr of the tinn of I*'. iV S. of, \e., iittoruf'.VH for tin* aljovo namiMl pluiutilTH." Jiii* iiimI iKiiiiiHHioii ol oil iriiil. N" hefaMiation I j. Miht>i\.(iiUi>rt. Sn- furtlR'r-~rracti.si' in E4 V. S>r I'riiu'ipal ami Agent. " Election. i<^i'*- Contrai't. I l.iitliilii) l.iiiiilaltoii ol roiioiriKtiiMi. I»<■!'ll.iallt^. trustees o! A., uu insolvent debtor, pur- clm.sia from the plaintiff, huulier .sawed by him at a mill wiiuii had been occupied by A., and in consideration there- of agreed to releawe bim from all debtn duo by him to A., and to pay him i'l'Ju. It wa.s Htipulated in the aKrcooient that the defendanta were not to be personally chargeable Tor the payment of the money, but that the "lumber alone TO AGHKFMKNT. was to he suhjtrt to tho pftviiH-nt tluToof. II' hi. timt ihc effect of thin ilinix \va» not to rxttnrrate the dt friKhints from Hahility if lh» \ ini|iroi>«rlv iii)pro|>riuteti the iir»»o»'e(ls of tlie hiinhi-r (ah m \m\iu^ a ohiim lor rnit i»n thr mill), hut to limit tin ir liahilitv to thr truf m t jtrooeeilH of tin- lumhtr, .\ihIiiI V .1/. / t»liliil«-4l %ur<'«>iii«-iif l*4ioili<»ii of |»ai-ti«-*> iill«*i-«*il li> llrliiM-c ill 1« lion. K., who held a 'luanity of lupH cliiinn'd hv P., sohi tluni to II.. wiio iilacrd thf iiioiii y in tlif lianils ol tl« f«inhiiit. hoth jMirtit s afjn'«'ini,' that if not r«.i"l«vit «1 l.y V. in six ihiys it was to he pai^l to 11 1'. was ahout to reph-vy. hut hrfore till' six thiys ixpin tl, K. a.Tt i d with him t(» nuhmit tin- matter to aihitration. thf mont'V to uhide thf «vtut : hut afttr thr tim«' claiisrd. K. rrfusfd t(» arhitrat*. and (dainird tlir money undt r tlif !ir>t aKruiuiiit. //»/»/. In an aetiiui aj^aint dtft-ndant ou tlu- first a«,'r»«niant f»>r the monry. that as the sulistitutcd a^Tccmeut alt»ri'd the position of th iiiliiiiiiistnitvi'<, V V ])arti«s, It \va> an answer to tl le ai tion. K> ith it ill. bk tunc r. 1 // ii}i. ,) Hi. '.I 4 oiii|>«-ii«>:ilor> (k'i'criiK'iit %%iiiil of roii*>i4l«'i'atioii ^o looo oii*.|:iiii«o liulii ot sH'lioii I'liiinf on < |-0\t II. PlaintilV and defi iidaiit heiii^ licenHed hy the Crown to cut tijulter "U adjoinint^ tracts of land, and the def« ndant having l.y mistake cut upon the plaiutilT's license. tlie\ entered into an a^-r. run nt wherehy th»' d. feudant. in coji- sideration <'f the tindu r cut hy him on the phuntitTs lieeUM-. !S ' ns gi-anted and nuide over to the plaintiH" all hiH (def.iidant interest in a certain jiurt of the ^'roun«l descrihed in 1 license, with tiie right to cut ai;d carry away the timher therefrom, anro thort' wrh no conHidcriition for tlu' rtprottnont. *2ii(l. That without tli«' iiHHciit of the Crown. th«> nKn't'iucnt (liti not operate iih tin iiHsi^^Mnnnit of any ri^'lit to the [)hiiti- titV, iind therrfore the l>i«U( li of it ^uvr him no rii^ht of ut'tion. Ilni. That tlie etVect of the a^jreenunt In'in^^ to allow tile plaiiititT tti eoiiiuiit a wntn^'on the Crown it was ilh^'al. Slmrji V. Ml l\i'ii, '2 l\in 'I'H. Il4'll'«»«t|»«*«-|i%4' 4*ll4'«-|. W lit re an ii^'rei iiieiit tr!ii work has heen retliiced to writing', hut is not actually sij^'ne.l till a future day. there is iiotlim^' to i»rev»iit the |.artie.« from hindin;,' theniselvt<8 aiitl iiiHkin.; liie aKU'oenient etieetive from th<' tlay it waH (literetl into, thouj^h prior to the Bi^nin^ of it. /Vmm*-/// v. Sniiniiils, r» .1//. T)-!?. A contract to deliver a <|uanlity of Ioj^h does not neces- sarily mean " merchantahle l«)eh.' according; to 1 lU'V. Stat. (•a|i. IM). hill may mean such \o^s as are actually K'ot in the pait lit tin i-.uintry ulure the parties li»'e. and in constru- ing; the contiact. the surrouuiiin;; circumstances, anil tlio lact tiiat nierchantahle h)^s could not he v^ot in that part of till country, may he taken into consiileration. /»<-//,//■,/ v. /'-.'/v. i; .III. \i:\. •1 < lletlaialioii on «>ii4-|i <'»iitrart. it ih n«>t iuceh.-.ary in ih ciiu m^ on such a contract to (icscrilM the lo^^s otherwisr than as htatnl in the a;.;reement. The detdaration set out a contract to di liver lo^s in the dt UiKhint's mill pond ; the rviiUnce was that tlie defiiidant t,'s down. //■/'/, Tiiat the coiitraet was moved. //'. ^^ - ^liiliiie ol li-aiKlo — %ol atailul»li> a«ll«T «l«'lit«*r> •Vftt r lielivt-ry of the loj^b to defindant he cannot ohjeet ill ail iii'tion for hrea( li ->f the agreement, in not paying a biim of monev to a creditor of the plaintity, in consideration of getting the logs, that the contract is void under the tatiite ol frauds not heing in writing. //'. 72 ACJHKKMENT. « eN'i-«>oiial Hjil»ilil>-< oiiiimii> i<|»i«'«.riH«'«l H» li«' iii- « «M-|H»|-iltr iiH oi|Miia- tioii. riiiiiitilV . nti iT(l int(> sui nK''t^"ini'nt with n Society l)y namo, to do crrtiiin work: tlir So.'ii'ty was nprcst'iitcd I'V tlu- CtMnniittri' uctin}4 on its Ix liiilf to hv iii(M>ri'oiiit»-(i, antl thr contraot was uiuUr seal, rrpri'scntfil to I'l tlif eur- iHU-ati- s. ai of ihv iSocietv. ami l>y a clause in th'- <-ontract it was pn.vnl tli»t the Coininittft' should uo{ ho pcrsoiuiUy or individually liahh- to th.- ])hiintity. It ajipearrd after- wards that the Sociity was not incorporated. //l Ml l.aiiil. AVliere tlie retptcti'-e ovner.^ of adjoining lan;ree hy parul tn a >urviy aiih>>iriiU. Jin •2s«;l. ^ lloiiiiilai > line I'aiol aui'«-«-iiirii( a* lo IiiikIiiiu When a division hue is in disjtute In tweeu partie.., and they agree to « .itahlish ', time, ami ilo ho, utul a< I upon it by putting up their (enoej, and hy sove'-ally occupying the land on each hide, tiiey are hijund hy their agreemiiit, whether the hue js ngia or wrong, and cannot repudiate it, though th»y may not have held under it for a {.trioil of twenty years, s) as to gam a title hy adverse |>ohhessiun. Ptrry v. I'littngnu, '1 I'tuj. liGT. AGUEKMENT. 7S 9 i:»iiBrnl l^ru«ir Mtatntr of rritii«l«t. An agr«'«'nif»t for tho uho of driviiij^ powrr of an engine is only an «as«'m('nt which cannot hv cnmttMi hy pp.rol, and a parol ak'rccniont would hv detormin'Ml by a conveyance to a third person from th*- party agreeing to give the power. A vtrhal agr«M'nient to liase preniiseH for three yoara from a future time is voiuld hccotne a tenant from yar as to him. In- would be nothing more than a tenant at will to the Mortgage*', or a person claiming through him* Hviiniuj V. lirninnnii , '1 /'//id<*i*afloii. i'1-uniitl .sunl u|u)n th'' foll.Avin^ mstr Muent : -" 12 inontlis from tin- '.MUli .lum-. IHTH. 1 uh-fendant) will j)ay J. C. iplaintitfi. $'.»() for l>. I'., or otherwi.sf settle th.' sum of $'.•0 fur him on a notf that In- says he gav» J.('. for $!()<).' //'/J. That this wa.s not an a^'reen)«-nt with plaintitT with I). v., and tinrr was no t.nisid» ration for the contract. ('"rhr'Ho V. Ciirr, :S I'lni. '2'2\. 11 %ui4-<-iii«'iii. iunii iiiili<>i-if> 'l'ro%«>r. Ill trover for timhcr, plaintiffs claiiiit d und. of the one part. ii\u\ S. und.r whom the lit ftiitiant claimed! of the ther part, ^vhj-rt'hy I), granted lu'. lis* to S. to cut timber . ii certain !.►.: i, the timi)er to rt inuin tlu- property of the grantor tiil the stuinpage wa« jiu.d. Tix' agreement was signed by h. "for the proprie- t'Ts." and it was hworii by l». that the plaintiffs were the jiioprictur.s of ill.' land, uiid that In- act* d as their agent 111 uialuii^ ilie agit'cmi«nt. //*/t. That if ai'ptared by the agreiiiunt that it whs made ly h. an ;it;rnt rt»r tli.- p^oprit-tors of the land, and that liny could tak- th»- benifit of it. -nd. That if t\u agrtenunt was made Intwei-n the plaiiitillrt and .S., ilu dff.ndant. < biiming uiub-r S., could net disput*- thai the plamtitTs wt-rt- th«' pr>)()rietor'- oi tl land. //.7>i// ,t „1 V. !h,(h.niu, {', Ml. -JdT. Hi ;• jEK mm 74 AtUiEEMKNT. I'i — |*iirli<'s <>ii|iili'4><«|. Where the words of nu aj^reeiiient are joint, vet if tlio interest he H«veriil. eucli juirty may maintain an action, thus: — \Vliere the dt hndant j^uaranteed " lliat tlu' wa^eH due \V. K. and (J. N. from .1. K. fi.r making' timlier . liall he satisfied whtii tht v hroutzlit tiie tinilxr up.'" ajid the con- tract oi luring: hy \V. 1\. and (t. N. was stparatf and ilis- tinct. //'/'/. Tliat eacli couKl maintain an action on the guarautet'. A'crj/Zc v. Jasrph, IIiL T. 1832. 13- Ititflil 1<> r<*s«-iiid atfreriiii'iit. Wliere a numher of persons jt)intly aj^ree with anotiier as to any particular matter, tlie agreement can only l)o rescinded hy the consent of aU. V-dmfr v. Luntj, livr. Vll. .%l(r4'<>iiiciil ill u riiiiiu for «>\('l(aiiu:i- (»f iiiiio«>«'s««ioii O|t«>(atioii ol. tic iJecd \. 1. Siithcrl'jii'l v. ll'-iltt-r. Sll(>«.C||||<>| »SVf' Deed TriiHr«'4' ai hvtw, Ser E>jui! ""•earli ol < ro»> '^'<''' i'atiDi Artioii Im.|„ '*^'"' Action Ai ion for I '>ll*>|M>i| To *«-il lat!4l ll«'fii*>al lo <-oin|t>l«'if— laahility for iiH4> ai*«l or«ii|>alioii. Si' r.-i- and ()ci-uj»ation, 1. I'irk'r v, Emiiand. lo l«'a«.«> l>a>in«*nt Prilil) of aii« <■ of land !'u*»fifft<«ioii niKh'r aKr«'4-in. iSVe Tenant at Will 3. Ih,. v. hrnny. lo |»ur4 lia<«4' land fioiii oMiur l.flrri of %« rii iUK 'l'«'iianr}. .SVf Tenant at Will J. />„• v. I'tntmin .ly. Kf-pccliuu •*iiaMd«*d %«<.<>il \o proprri) |>a< l3iK> See Siiiij'in^' Law '. linnrn v. Sukerton. * ill drrd Whethtr niiiulj.T of ji, M»'rc explan; dence. <»' Will m-i '^>'' Amen I' 1, -1. •i K«.-H. Mliiij ^'t alt.rat ^^"iigh 1.,-for. «*''*l'''l. And,, «» >o»,.. ALTFJlAriON. 75 .SV(' Dt't'd V. H. Mi'K' u-lrirL v. I'lird'in. Ti-ii«>l«-<- and <'r«>liii qii<- IriiHi %ali«iil> of aui'«'<'iii«'iit IM-IU «M'II. .SV'' Ei|uity. IhitAt'ifl V. ('ninf. Itrrarli «>l \ui'«'<'iii<'iit I iipaiil lii»ialiiifiit IkaiiiaKf'V <'i-o>>s a«-lioii. .SV'' Pamagea. ArtKiii brloir rxpiratioii r4*a<-li of aiKi'tM innii , \% lii'ii rc*iu««ly uot s||H|»4>||<|«'d, See Assumpsit 1. I. L<>i-h v. I'unlon. ii,Ti:iii']'io>. 1 III dr<>d 'Vlalrriabily. Whetiur au alttraiioii in a deed of cotiveyaiK'o of tbo number of acres sold in suolj a tnat»'rial alt«'ration as to re- 't v. IV'tUli. 76 ALBKirr MINING COMPANT. ArKi:KT !VII!\II%4; «OIVirAi'\l. iVr Joint stock Conii)jUiv 15. AiTIHlia ITl. Boiiiitliii-) l.iiK*. N( Crown Cirunt I. 5, 1». Polir) <>l iii«>iirnii4-f>— I>c«»cri|»li<»ii ol vo>»k*'> >>«• Insunuu'f 21. l.niit:iiiiK«' in l«>ti(>i- aiiil>ii:ii<>ii<» < oiiHirii<'ti«>ii a|{aiiihf \vrii«T. >" Acidid unn "J. M- /f«'ii«laiil 4iiiiii«'«| to iMiicfil of •• HiafiiT ill «loiil>i. S' • Absconding I)»'l>tor 17. (ulhiix, I"«>««. AiiiliiKiiin i». |ilfali-iM-tioii a|{2iiii*>t |»iirl) l»l«>afiiM lion t« hill (loiilMfiil Bnicfll (o \% lioiii ui\ «>ii. Sff MandaTiiu- 1 1*., must he re in inctirrt'd th*' years 1 masttr apj nrannrn v. .1 Qtlivvr'- III 1«> I II Kl I \4 I \««. Siirrifi'K ^2(|i> on l^ii^iiial \tiii iiol| ii«-«-CHoai > to b<- n pruvi'd. Scr SlicrilTb Dciil (i. I l>ial>ilif) fHi Tax. ; AMI -\. An aliin rchiiitnt in {hi> I lovinct- in liubh- to tht- j'n\ mtnt of an txtnijit tax of thirty hliilling8 annually, undir the Miiiiia Act G dto. I\', eu].. IS: and not nunly to on. paymtiit of that sum. U'.itson v. IluUi^, 1 Krtr I'll. *i 'l'a\. u ticii §«■! o\ craliii' Till uluu tax iuijofcid hy thi Act G Gto. I\ , cai>. IH, 'Vf' Court fl ill. Kk,ok[ ■5>V< Maliciol ALIMONY. 77 must 1)0 rt'c ncrocl hy tlie (juartor mastor in «)tlico when it is iiuMirrt'il ; flifreforo. a conviotion for i!:t for alion tax for the yoars IHI') and 18 4«). on tlie prosecution of a (juartor master appointt'd in IHtO, not being severable, ih bad. Braumn v. huini, 1 All. 218. :| •ffi«-4'r'*» Itoiiirii r.vi. Tilt' return mado by a <'aptain of a company to a quar- ter master of militia, according; to the Act ♦'» (f«!0. IV. cap. 18. staling ii })arty to bo an alien, is not sufficient evidence ottliat ta-'t. H'in v. WUlvitiUy 1 .1//. 221. .1 DUrliurKc An ahen cannot discharge himself from the ta\ im{)osed by the Act Geo. IV, cap. 18, by shewing that he had eu- rolli'd himself and served in the militia of the Province. lirfnnanw H'lUuitns, 1 Kerr "I'Z'l, 4 -^itturnli/.ailoii of. The certiticatf required by the Act 31, Vic. cap., 06, sec. 5, must be both tiled and openly reatl in Court on the drsl day of the term. JixpurU Dor, 2. P. mt:nt. i'%i*.i riiii«> IC<< or \ :ii iaiiKi'. See New Trial 111. ');^. Ani<-ii4lm<>iil a« I'liiil l>««.< ri|Hii»ii ol ^lill. Srf ririiaillL' 1. '1\. I<»l:iliiloi) fonii. iiii lioml lb. Afln l>«niiiiirr Itooko «l«l. jSVc /'/)(' V. MiLnchUm. /.'»;■. hi. I \:iri;iii<-<' Hrrord l>4>st-ri|»lioii. On tlu' trial of an insnc on nul tul rrronl. a variance b('tw< tn tlic record prodnct'il and tlic description of it in tilt- ihclarntion and roj>lication may ho auiendtd. *SV(' Rubcrtnw Uittsvii, 1 Mi '1. D4M'lsir:iilioii. Promissory Note-doubt nhetlur ^iven to one or l.oth defendants. >V< I'leadin^ 1. -*'>. *i All'-i .IimIwiix'III *•■> llriiiitri-*'!-. Court urantt d leave to anund tin declaration wlnre the i''ea. if allowed to ntand, mi(.'ht h*- a har to the whole caupe of action- thf demurrer haMni; likewise arisen out ('f Actrt of Awicmldy. complex auti djtUcult in construction. Cnt^ \. lUnhr. 1 All. •J«.». :i ill4-i- •>«'« <»II4| l>eiiiM|-l«-|-. Aft«r judgment on a -ircitud dt niurr»'r to a liechiration on an administration l»ond. have was j^iven to make & e* t(Uiil annndint-nt : the iiJ^iutitTs counsel atatinfj; that hu liad been misled h\ an » xpresMon of the Court in ^mmuk judtrnN nt en the deiiii;rrer. Sh«-«'ltM*u(i<>ii liid«*i'%ciu«-iil (»l Bill. in action i'y Surviv(»rs of Firm, the dtelaration allej^^cd the bill was ii:dors».i to Kirni. JhU, That the d.claration xnijiht be amended luider Act 7 \Vm. 1\. cap. II. Mec. 7- Set Turrutl v. U'llmvt, 1 .1/^ 303. A^^^Nl)^rKNT. 7'.> ,"% TrrH|ta*i«> l^ri'iir in ropyiiitf Ikrcliiriition. Whoro Jiti iittorncy'H oh'rk in copying a (Icrluriition in tn.'S));iss. inrti'rt«'(l tlif word " wlu-reaH." in ci)nrt»'<|Uon('o of which t!"' n fil.-d were correct. WiUnn V. Amlrews, 1 All. «'>70. 'l'r<'*.|»ii^s- |l«>l«*ii(laii(o nol all «>4>r% ctl \t ifli |»ror4>«i«i— *«friKiiiu oiii of %i^i I'liii- Iti-roitl and llcrlara- lioii. iiaiiiio of 4i«'f<-iirvr- taiiit i, and tiie plaintitT sustaine I datnage, and had to pay a Huni of money to get posstssion of the cargo, a verdict was given for the plaintitT. On motion to enter a nonsuit on ♦he ground that the d. f. iidant, as registered own* r, was not liable, the Court refused to amend the declaration hy adding a rount chaj;ging him with being the agent of tiio of the master, and wron;:fully advising him to detain the cargo unless plaintiff paid him $I".m;, tmd alleging that tho defeii lunt did d»^-ttin the cargo till such money was paid, 80 AMENDMENT. — tlio object of such amondmont hoinR to retain the ver- dict for the amount bo paid to defendant. Smlmry v. YauniJ, 1 /'».'/ MH. •- StrikinK out iifiinr of oii4> ol d«'f«>nclniif«* TVol «hrw liiK pr«'ju. An application to amend at Nini Triiis by strikinp out the name of one of the defendants was opposed on the ground that sueli defendant wan iiilitled to costs, and that the other defendant was entitled to shew \>\ athda\it that be would be prejudieed by thi' amendment. Tin -ludRe otlereil to receive the lim ?•<»•«• e\ idencc of thi' attorney and the other defendant on these points, which whh declined. IlfUi, That the amendm* nt was properly made, without costs to the defendant, whose name was struck out. Mar- rou- V. Iliimtlton, IIiL T. 1H72. 9 Variuncf ill .\ot«' JudKf'^ d«'«-i«>lon ou irinJ. in an action on a promissory note alleged to be pay- able on demand, the note offered in evidence was payable twelve months after date : the plaintiff having applied to amend, the defendant asked for time till the next day to obtain the a*1idavit of the real defendant. The Judge re- fused this, but offered to allow the defendant about half an hour for the purpose, which he declined, and the amend- ment was accordingly made. The Court refused to inter- fere with the Judge s decision, — it appearing that thore was but one note between the parties, that the defendant had seen it in the hands of the plaintiff's attt)rney after the action was brought, and had iJromised to pay it, but after- wards refused to do so. .\(%rnit Insuranci' Co. v. Hiieri, 1 i'w^. 163. tO-Eirrlin<>nf DrmU*' «*ipirt>d. Where the demise stated in a declaration of ejectment Lad expired, the Court refused after a delay of throe years, to allow the plaintiff to amend by extending the demise, though it was suggested the defendant would set up the statute of limitations as a defence to a now action. lh€ V. Todd, 1 All 601. AMKNDMENT. 81 II ^Wlirrp an action of ejoctraont was commenced in 1H19, thcdcmiso intlio (ioclaration l)oin^» foracvon years, ami jii(i;^raont waH KJK'no.l in that ytar, but no writ of port- Bt'snion was issued, and th.' tmant had since died ; tho Court refused to enhirj^e the tl-mise, though the lessor of tho pliiintiff swore that he liad abstain. •«! from issuinR execu- tion at the request of the tenant, wlio luid promised to pay the costs an•<• *>rri|»tioii— %hiiltul*>. In trespass qioin- CL irnjit, not describing tlie dose by abuttals, defendant pleaded hhirum tinrnwntum, and proved title to a close within the parish mentioned in the declara- tion ; the plaintitT was allowed to amend, setting out the close by abuttals, the defendant refuHin;^ to swear he would be prejuiliced thereby. Df^hri-iiu/ v. IAvin(j$tonf, 5 All 240. 13 Mprclnl KnIltlInK ('oinmrumnnit of Artlou. In an ag»tlou— Proof. It is necessary not only to allege the actual considera- tion, but the proof must correspond with the allegation. In this case the plaintitT alleged that th*> considt'ratiou consisted of cerUiin ttamitntj trfe*, goinis, wurt's, and mtT- <:hnndue,,iiul itmujhinf ,• the evidence shewed the considera* tion to consist of stumpage alone. A verdict having been laken for the plaintitT, subject to a motion for a nonsuit, W^' 82 AMKNl'MKNT. the Court allowrd tin- j^lftintilT to ninrnd on puvinfiit of all coets, and inadr tin rult' absoluto for a n«\v trial instrad of a nonsuit, on tlu- condition of tin- itaynicnt of such costs. U'liitiiri/ V. Miirhs, 1 K' rr 17l». 1.1 lliiiilliiiu l»4'« liiialioii III ilii- l<<>« okI l.iiiiilali*n of i«lr«»ii Iiioiiraiirr I'olirt. By one ot tiic conditions of a policy of insMr.ino' tho non-coinincncrnK nt of an action within a y^ar after tho lobs was d» chirrd to he a dtft net'. In a suit on the policy this ohjcction was taken ; it appearing' l)y the Nisi I'rius record that the action was coinnunced after tlie year. Ap- j)lication to amend tin- entitling' of tho declaration in tlie ri cord was refused, there hoin«^ nothing:; to siiow that su«'iiiiiir«'i-. Aftt-r (hniurrtr is ar^uul tin Court will allow the plea to he withdrawn upon payuh nt (.1' costs of dennnTfi-. Stnnt;i V. /.'.//, /;. ;. liMT. i{<-|»ii4'alioii Oiiiis«.toii int <'iiir> of rdiiiicr |iror«>«-«|. iii;:>>. See i'leadin;.; 1.7. D«'alii Sii);K«>««ii(>ii ol. See Summary Actii'ii 1. IM — lliil in llqiiil) IMradiiiKH l*rarlirf. A Court of Eijuity has an inherent powtr to annnd the pleadings in a cause, antl an amendment may he made t fX /hirtr ; t Win I mix V. / In a fore* out in tint rnri.sli of l\ taki Tl prii ri)\ that part of j ex /mrtr ordf situation of decrtf in l-'tl iiiiiit, and wi to st't nsido Tliat the moi hill, no amen ni. nt was nee I'v it. 'A. Th ular. tin- d.-fc s( t aside the delay. Ihip ft id. V. heen deceivei the jierson Wi Dfcceasarv, I',| AMKNinri'.NT. m f.r pitrtr : thou^'li. ordinarily, noticr hIiouM 1»o Rivt^n. U'i;l'irr.' ordiT to ani'nd the hill in tho dfscription of tho situation of the huul. Thr proporty was soKl unthr tho (locrrr in F«hrMary : thf difrndant know of the advfrtisi;- unnt, and was present at the salo ; and in >fay ho appliod to set aside the proeeedint^s tor irre>,;\ilarity. ll'l'l, I. Timt tlio mortf^'ai^e having heen partieiilarly set out in the bill, no amendment was necessary. '1. That if tlu'ani.nd- iiit nt was nec(*ssary, the ilefentlant luul not hee^n prejiidieed by it. 'A. That if an amendment nnulo >.r jxirtr was in •),,'- ular. th" defrndant shotild hav<' applied before this salf, to 80t aside the order, and had wjiived the objection by his delay. //'/«/. The Appellant in this casi> liavinj^ applied for cost-*, the application was refused, there bein^ no misconduct shown on the part of the respondent. //»/./. lU lli'i-iaralioii. Where the declaration did not alle^'e any usagoto carry de.'k loads in tlie trade between New York and Saint .lohn, and both }»arties j^ave evitleiicu in re^'ard to such usa;,^o, tho onoto establish, the other to no^^'ative any such usa^^c, it was held that an objection on that ground taken on mo- tion for a new Irial was made too late, and that the court niiL,'ht allow the pluintilY to ameml the declaration or aild a new emit. (',un> nm v. lh,miill>', 1 P ,(• />'. VAl. •iO HiHiioiiior. A Judge at ni)ti priu.'i has power to ordir tlw mime of a plaintiff to be amended umler section 1«53 of C. Ij. P. Act ; Copp rt al. V. li.ntl ,'t ,d\i Pwj. .".'27. If defenilaut has not been deceived and knows, tliat the action was hrouglit by the person who actually sues, amendment in such caae not necessary, Per Wet more. ./. Ibid. U,Wl;,"'" ' 'V'Jl " '.til l.^" ' f i IMAGE EVALUATION TEST TARGET (MT-S) 1.0 UitTB |2.5 ISO ■■■ ii 1^ 22 I.I ■UMU 1.25 U III 1.6 II == 111 = '/y o! /}. 'V o 7 /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 873-4503 ., a plra Ktatin^ tliat tlir {daintitT at thf tinu' (»f «'tTi'ctin>^ the inHurancc falstly inisr«prrs»'Ptod the valiu* of the property, without uvrrrin^^ that tl» * d«'f»'n- dantH wore not aware of the fraud wh«'n they ; ccepted the ahandonnu nf . au(i tendei'«'d hack the proceeds aH hoou a8 the} heeituie aware of it. whs held haH. Application to anu-nci held ^ »c i^ecessary to he made on common motion or before a ju(?j;e at Cliamher.s. //»»r/. *J4 i:j«>rfineiii DeinU«>. An application to amend tlie term of the demise Htated in a declaration in ejectment, so as to enable the lesaor to issue execution, refused after the lapse of 16 years, and after the deatli of the tenant. /><»<• ({.hauls v. Fni, 6.1/7. 328. Obj«Mtlou lo pl4*n» on •»«'v«'rHl irr«»iindw— PInlnilff' Hur- <«>«'diiiK on on«> onl> Aint>ndm«'nl allowrd with- oui |»Hyni«>nl of io^In, Uee Pleading 11. .">!. )filn»r v. .U- A'. n/f>. Derlnmtlon Hni<'ndubl«* um io d**«^rrt|»ilon ;%Hiend* ni«'ni niu«it b«* inadr hi irlnl. See Pleading I. 24. ll»Uhrne»t v. WeUiiKf. PI«>Hdinv«i in KqHit> 4mrndni«*ai« In. Hee Practise in Equity. A|rrff>rnt«>nl of rrfrrrnrr hi uI*>I prtu%. See Arhitratioit, V. H. <;«B»<*nt rule Laienf *!<» oi .%aicBdm««ni. See New Trial III. 51.^ AMKNDMKNT. 86 Appllrnlloii to i»d«l picn on trlnl In replevin ^'o p»«« «>r In Jii«Ik«> to roinpel pliiinlin to reply. Sir |{«j)l('vin 12. II. WKITS-UKTlRNa I SherllT— lietum on writ. \Vlu*rt« t\w SlicritT hati wiuh'T an pxeciition aj^ainst B., at the suit of A.. Irvird on the Rootls of C, ami returned the execution satistied, hut C, liad since recovered the amount from th«' Sh^ritT, wlio wan indemnitied hy A., the Court allowed the execution to l)e taken from the liU'S of the Court, in order that the Sheriff uiij^ht amend liiw return ► A. having lost the '.fruitH of his execution. Krtchtim v. (iihrrxnii, 1 K''rr ')l\). 4 -F.\«>riitioii an«l Jii«lKin«'iit Variance. On a motion to stt aside a judgment and execution on tlie f^mund [iiitrr iiliii) that the execution differed in amount from tile jud^^'ini'iit, a cross apphcation to amend the exe- cution was ^{ranted on payment of e«»sts. Lifitott y. Srcli/, 1 .1//. ;{■,. :i— si. it nut chiuse, will not l)e i^ranted un- less the writ is found on file, or some record of it is pro- duced. (Jiurrc. W'iuther sudi an amendm.'iit would ho made afti-r such a laj«se of time, and after the defendant had heen arrested on a 80c4>alli ori-or«l r.Jrifiiit'iil >o i*i*>ur. If aftt r tlio jury are sworn in an action of ojoctmcnt, it be discovend that tlitrt- is no iKSUi-, the trrspaHs and t-ject- mtr.t htin^' charpd on tlu- record to have been coinmitttd by the casual t-jector instead of the dift'iidaiit ; the i)ro{)er course is to discharj^e tiii' jury, and amend the record at Chamhirs. hoc tlnn Andrtwn v. ,S,ilij,\ '.\ Knr Wi-i. tl— Jll«l|{lll«>llt K4»ll. On a (icclaration containinj^ live counts, tlu're waH a verdict for the phiintilT on the second, and no notice taken (rf tlie otliers. After the expiration of two terms, while a motion for a new trial was pending, thu plaintilT entered up jud^Muent on the verdict witliout anycontiniiances : the defendant brout^ht a writ of error, assi^'nin-; as grounds, the absence of an; Nnding by tlie jury on the four counts, and the want of continuances on the roll. The Court al- lowed the plaintif! to anu nd the roll by an entry that the jury were discharged from any finding on the other foiur counts, and also by entering continuances from the return of the (li.striiKiiiit to the tinn- of signing judgment. Mi • MiU.ni V. Jiit'hir, 2 .1//. .l«;;). S— IMiiiK- |»r<> tiiiK*. Where the jdaintilT's attorney had accidentally omitted to insert the amount of damages anil costs in the judgment roll, but issued execution for the amount, the Court allow- ed the roll to In- amended nunc pro tnur ; though the de- fendant (relying up(Ui th*- omission i iiad brought an action of trespass aganist the plaintilT for stizijjg his ]tri>pertv under the »\eeution. Sinitl; V. Snfini, 1 All, litW). 1 Jiidt(»*<'"i Koll and r.K'MiiiiMi |]rror<>». Sostea may afterwards he amended by contlniiiK tho verdict to the }^'ood counts, if the evidence ^'iven at the trial WHS iidniiss.ihle upon them, and it cannot ho inferred that any (W" the evidence or any part of tiie damaj^'es was j^iven dintinclly on the i)ad count. Miht'-r v. (hlhrrt, 1 .1//, 51. 6— Kail ricrr- KiKlit to aiiinid. AVhere the defenilants' attorney in preparing' a special hail piece hy mistalve omitted otn> of the initial h-tters of the plaintilT's name, hut stated the name correctly in tho notice of hail, and proceedings were taken against the hail, the Court refuseil to set aside the recognizanctf roll on ac- count of the variance between it and the hail piece, and allowed the plaintitT to amend the hail |»iece by inserting the initial letter, on payment of costs, it appearing that tho bail could not have been misled bv the mistake, and that no injustice would be dono by tho amendment. Estntj v. Broun, 'lAU. it'll. ^uch a mistake would have been amendable without con- sent of the bail, before tho Act II Vic. ch. '20. A hail piece is a "legal proceeding," within the meaning of that Act. Semhlr, That the bail would Inive been liable on tho recognizance, without amendment, if the facts had been properly suggested in the recognizance roll. Ilnd. 7— <'oiiH4>iii ICiil«> Trrititt ofaiiK'Udinriil. The (lefeiidant in ejectment entered into a general con- fiont rule ; at the trial, the Judge directed a verdict for tho delt ndant for all but a small part of the huul described, I'ut the jury did not agrei-. aiul after the trial, the e anu'ndod. .SV<' lu'phvin, T). />'iif Aiiii'iidInK- .SV( C'riminal Law. II. 21. Uniina v. rhfin. rv. MiKC FLLANKOrs. I All«>riifi«»ii of Writ K4>fii*>iil i«» iiiii«>ntatute of limitationH from bringing a fresh aetion. /)'./r/f»» v. f //'"///.. //. 1 All. 'Mil. *i l'roiiii«>*.or) '^iitc Ifrfiioal to iini4ii«l. Th( (i. claration in th( tirst and second eounts stated a proniisHorx note madf hy thf def* ndant to the plaintiff 3l8t Mareh IHJI. for ilOl. and in th. third and fourth counts a not*- dat* d '.»th .July iHll, of a similar anu.unt : the note provt'd was a joint note, made hy the defendant and one J. V. ]].. to the j-laintifT. dat. d liHth February 181*2. lid I 17s. Id. Application was made to anund, which was r» fused. On a rulr to set aside the verdict : IJilti, Ihat till iiot« set out was a separate note, and the note prov* d wa.- a joint note; that if tin- note had been truly set out tli» d. Kndant would havr had a right to plead in abattnunt ; and tlitn fore tin Jud^'c was ri^'ht in refus- ing; the amendnu nt. aiid the variance was fatal. McKctn V. J-:stiihr<»'hK, i^ i'.rr 'MV.K :i Jii«Ik4' rrfiioiiiK aiii4-ii«liii«'nl. When a iJuii^e at Ni.m I'nus refuses an amendment, the Court \\ill not review his decision unless they art- satisfied injustice has been done by the nfusal. M( AUistn v. Ihiy. 4 AU. liT. Smhir, T new cuii^ic (»f A v,triaue( of ejectrn.nt ii n, .'ifbr thr , IS lint bound dt.'fendant, to alter fill. ;iniei ■"i AtlditiK ti<( Uli. r«' an I'y addiri;,' pbii was allowed a ftintiid. and ii 1 //"'(. •_>;{•_>. <» -AllK'lliliiiri TJi- Court which coiiiisil ! "f coinis.-I on 1,1 J^leadiii^'s (Ml /"•<• ('■'. V. .U All llldu!;,' 'AnnU■^ at tl„ "M th.. trial ai f'"' api'lication to iihi.b- the ,.^ was iniproprr. ^''•tt'ii^ th,. H„ See I'ractise ~" l.en\« P»»l) to I ^'''' I'ractise 'V CniverMt fi A MOTION. 81^ Seml'l'-, Tliiit (in uiiu'inlint'ut wliidi woiiM introduce a new (':iu>^'' of iK'tion, (ni;,'lit not to Itf iilloutil. ll>ir v. I'itt, 1 .1//. HS"). .\ Aildiiiff iiiiiiK' ror4>4*l4»«>iir4> *>iiit. \Vh«n> an anu-ndinont was made in a foreclosure suit, i)y adding,' plaintifTs after the hlinj^ofthe hill, the (h f(Midant was allowed a month to answer after service of the order to amend, and a copy of the amended hill. ]]'ri'ilit \\ F.vimsoHy 1 lim. 'I'.Vl. <» illl<*ll4llll<'llls lUllHl Il4> lll' Court will not su^;^est am«'ndment to ploailin;;, whicli counsel have nat asked fttr, althouj^h hy a;^'reement nfrouns-lini hoth siiles, the Court to b( at liberty to allow pleadini^s on either side to he altered to meet case. Ihuinnr Inn. Cn. V. MrL'n.l, -2 /'. .( li. ni. 7 Orvi( -<'4>»|«*. An nidu!>^ence jjranted to the plaint itT should not )>o arrant, d at the expense of the otlier party. Where a i)arty on the trial apjdied for have to ainend his declaration, and the n|tplication was Knitted anH\ *2 /'»-/. Ilif). ^iiUK<'*«tioii 4»r %Mi4'ii4liii<>iil«« 4'4>iii't will not So' rradiseXlV. IS. /,',»;/./ .r ///«. Co. \. M,J .r,.,l, — I.4'a\4* K^^t'ii t<» aiii«>it(l l*l4>ii(iiiiKo l>iitj 4>f pari) |4» faik4' 4>iit riil4' aii4l •««>r\4> it. ^'<«' rructisf VIII. 'ill. I'^ittrr.fitn v. l\itt>rMm. A .^lOTIC^. >'•' l>niversity of New Ikuuswick. G 00 ANcr.s'nM: am* iikii:. ^>ri>roic iM» iii:iit. S,t- Covt iijint. N. ' livLiiw, Kijuity AXIIOIC MiV. A>«»U I.K 1"> l.■" Su|irrnio i."«'Uit ill l".'|uity, i:iilr> «»1 l|>|M>al. ,Sf «• l'riicti>t' \ . ;K < •■i-iioraii %|>|msiI I.)iiik- .^. I Ctiliuiari, 1. ."»(■». .Iii(Ik<>'*> Older 4ii-tiiiliiiK l.ca% v lo appral lo l*i'i« ) i oiiii- 4-il— I'iiialil) 4>l. Si •• I'ractist' \. .'». . The Siii>rtim' Court lia- jiin'siiictioii tt» In iir iin appuil Mum tlu' dirision of ii .luil^c in Kcjuity, tlioUi;li notion of tin' ^rouiuls of apitt'ul lias not \k'v\\ st rv.d on tin- .lu-.l^jf as di- rected liy the Aft 17 Vio. ojij). IH, bcf. \V6. M< Ihule v. J'ltrrs, Mtrii. r. 1871. *i rr<»iii l*i-olial4' 4'oiirt. ApjMals from the dt-cision of tin' Troliftte Courts must l>e made to tlif Supretn*! Court, and not to out* Judj.;o sit- ting in K'luity. I'.i ji^ntr lin.irh, Mi.li. J'. 1S71. :|— ost' tlu- ai>i)Lal. Ihid. •I -4araiiiiii;; fiii-ili<-i- tiiiK*. When in consc<|uence of an appeal having heen made to ■> < alloc i|4> Ih*Ioi-4> , Al'!'i:\L. Id the wiMMi; triliiiiiiil, tln' hill'' f"U- ii|ii>r;ilin;^' iillowid liy 1 llcv. Stilt. Clip. l:Wi, si>('. M», liuil fxpircd : tlir Coint Ljrtintcil fiirthfr tinn' on lilin;^ a proix-r hoiid for coats, and on payinj.,' tlic opiiositf i>arty tlio costs of applyiiij^ to set aside tlif appt-al. I'.r i>n4liiiu OH «-ri>flil»ilil) of u iliir«>H4><» lii'iirtl Im-Ioi'4' Jiiiliic I'iiiiilif). Wlnii a caiisi' was lirard viva voce Ixforc a .Iiid;^f in lv|iiity, ami di-pcnded alto;^ytln,'r U['on tiiu crt'dil»ility ot' tlu' rcspt'cfivo witni'ssi's, the Court refused to lirar an ap- peal froiii the dudgo's decision. Smitlt v. .IniiHtinnij, Kuit. r. isT'i. <» limrt'— % ai'iiifioii oi- r<>\ 4'rsiil ol ^iil>«»4><|ii4*iii pro- <'«><-« If a dtcrco or order of a Ind;,'" in l''(pnty is reversed of N.'iritd l>y till' Court of .\pi>i'al. any subseipient proceedin'^g Ml the cause taive place la llu; Court btdow. M,l.t,„l \, riinui.iH, l:a\ «' to a|»|M'>il < oii«|ifioiiH. A .lud^r in I'.piity rifiis.-d to luar an appeal from tliu i'n'bate Court on tli«» k*"'"""' t'"^^ '"' '"^'^ '^'* jurisdietion, tliat the appeal sliouid have heen tnadt to the Supreme < ourt. Application was then made to the Supreme Court within si\ months after the decision in the I'rohate Court, and leave ^'ivt-n to appeal, on which the appellant tiled a 1' 'lul for costs. On application to set asiile tlie order for iiftve to appeal, on the j^round that the affidavits on which It was olitaineil, were improptrly entitletl, and thav the •miuI w l:i(; a«4 not in th- form required hy the I Kuv. Stat. cap. Sec. it), tile appeal was ordered to he lieard on the ap- jHliant tiliiij,' a hond conditioned Ui pay su(di costs as tho >iiprt iiu' Court should adjud^'e, and on payment of tht? >'>sls of tlit> upplieation. though more than si\ months had ipsed since the decision of iIk- -lulg' of I'robates. /•. !"rt.St>,'i-tn„, I l>„.i. 1 l-.>. ^ < oiiiii> 4 uiii'l liilciioriKory r. V'h./v, Whether there is any ap[)eal to the Supremo J) 2 AlM'KAl,. Court midtr the Act !^0 \w. cip. 10, from tin iiitirloLMilor} onlor of 11 .Tudj^r of ii County Court : hut iin ordi'r aliHolut* - l.v to stay the ]>roPtH'il ilia's in ft suit, is a I'mul (KriHion, aiiil may ho appoaltil from. lln v. Sh inirt, 1 /'«'n<'(l*'<'< A\ lit re dt feiidant appealed from a decision of a Ct)unt\ C'»iirt dudf^e, and an «)rdi r was nnide stayini; pr«u*ecdin^,'s till jud;,'ment wa> ^^iven on the appeal, and the .ludge suh- Becpuiitly resc'indi d that order and K'ave the plaintilT leavt t ■ j)roeeed, whioli he ac'cordini^ly did, and nij^ned judj^'inent. t!ie defendant's attortiey attendin-^ without ohjeetion the t \ation of costs. //'.'!». A jtarty ajipealiiig from the decision of ft Judge of tin Ci>unty Court, under sec. H3 of Insolvent Act of IHOO, i> (•( uiid to shew (hat all the iiecissnry preliminary steps hav' h, n t:ikt n. Iliiniiltoti v. Hurgcitia, 3 I'n'j. 232. !*.{ — 'VlioioiiKlrr. An ohjeetion that a party was improperly joined as c< - I'laintilT in a suit in l"!(pnty. cannot hi raised as a grouii'i of appeal from the decision of the diidge helow at tlie lieni- iug of the cause, hut nnist he dispiKSed of under the 17 aH'i IK Vie.,cai>. IH.. hul. cn\K 2., bcc 24, fConsol. Stat. en). -l;», Bee. ')().) .louts ,( II'*/' V. CilLin, 3 I'liij. S^C). l:i— 4|ii<'*»ti«iiis of l'a«-f .liKluiiK'iit <»f <'oiir* i»«*lo\v on. Will re the jiulge of th • Court hflow, whose judgment l^ appealed from, has had the witnesses hefore him, ami hearl their testimony, an appella a tribunal will never interfer-- AJth his decision upon Ji (piestion of fact, unless for an errei in it which is overwhelming. Ibid. Al'l'KAL. M I I JiKiur'N »l'«. (,>uirre. — \Vli»tli«r iiii onbr for costs iniult' !•}• a JikIko of a County Court, if tlio Hul>j«'<'t of iin iipiM'ul umlcr tlio words, "the (ifcision of the .Iiidi^c upon any point of liiw, ' in th.-Jltli Hd'tion <>f tlir Act, !l(» Vic, ciip. 1<). Little v. Cut', M /'/"/. :. In iii>['t':»l from County CourtH, only such pupirs us aro n<'('os8!iry Uw tho ilecision of thu cftso sliouM i)i! leturueil. //.»■crlor. Win ri' tin- proc»'«'ilin;^'H of a school nvctin^; ar<> voi'l an i arc a nullity, as in the cane of a nicctin;^ hcM at otlu'r tiiuc than dircctd l>y tlu' Cotninon Schools Act, HTl. iCon. Stat. cap. (J.', sec. 'M < th" Inspector cannot eii- t rt:vii» uu appeal, th«^ procoeilin;;s not hoing held under till' Act. otherwise if proceeding's wen^ merely irrt-L^ular ; I'lit iiieetinj^' properly htdd. I'nrr v. /•.'/// ct .»/.. 1 /*. ,(■ />. 7i>s. I(i ^-vcriil 4 It deteruiininj,' the othor grounds of ohjeetion which Wile raised on appeal : this jud;.;nient was reversed with- out the Coin*t considerin;^ tho other gri)unds. < ir.jnrif v. M'(hi,,:l,', ;{ I'll,/, I. 17 On appeal from an order of a County Court •hiil)^.' refusin^^ a rule for a new trial on the gn)und of tho vt r.hct hfiuf^ contrary to evidence, the court will not intor- fire with the finding of tho Court helow. Uiliind v. I! tinm, 1 /'. .(■ />'., '1H\). 1^ < <'itil>iiiK IM<>a4liiiK<». On an apiteal Inun County Court, tho Judge should ^'filify a copy of pleadings. Mi Intyi-': v. McMmiiijle, '1 I'lij. Jf.O. I1>— Tiuu' r«r %p|»('Hl <'uuiit> Court. ; No preliuiinary ordor having boon malotoutay proceod- v% lii^r^ 111 mill 111 \'ctr ImuiiI tiU'd, unl -. - .Ml of .lii (iliiKT i\f III II. I tiiiiilii ni *. I'jiK. 1(1. and :V.\ \ ic tliat tluri' was notliin . cap. '20, to prt lit froniappt aliiii^aftt r rvpiratioii of twt n \i(l>,'.''s dtrisioii, tin- .Iiuli^i' having aft llli- llllll^ 1>I ■>l>lltl, Mill jud^Miii nt nliould ' /•/<;/. CIO. '.to llriiiiiiK of ti'i i< ordrr staying,' proctMiliuj^s til ;ivru oil .'ippral. Cnniir v. T/.m/w/, ; 1 IK .Till 'I I'lin- \ uui I i^ik..«il til i^rtwx-t^ /* 1 un i< i (^iiiiff lin« )iii ilisrf il ti 1 to ri'fiHf II j'j'i HI III V t < 'M II V uni- 1 1 n* I » < u 1 1 I >i li \ wi I the (lt>fi'lid:int has loft. t)ii> ( 'oiititr\ . iiiul uiv (u'M'iitiaiu lias wn THirvcd fri>ni County Court, he s not undtr can IK till' lint viirt'ittirf t.i rt'Ot'ive smtiiico. \N 1m n rt'coj 1 1' ,1 /;.. MVA. luar it. lifiiiiii \l\o caso / V. W'riili 1 * I 11 1 1 »i. .1. .<■..., - — "11 I" It'll al)andon*-d liis a|ip*'!il. tin illlU lilt li ill>llli(l< HII-I ,>. .. ♦.. 1... ,-..;.> ....♦ • court dircct«'(l t to till' iilaiiitilT .V' T liiKnn. liici) V. Minn III. '1 I'. , /;.. tli>. I. ( f • 7 - ........ . ...... ..,...„, .. 1 appt HI jji'h lo r>upr<.iiit' i. ouri iioin tjruii .luduf. S<'< Irsolvcnt Act of W>\K SI V. Mt'l ji I'll, 11'.. ^ I III. I Pin. i:n. innir, ( I'^-^iij ipi ^■■« *i iiifi ■■■•■I *■■■ ■ lir«'il tiik<*il. mr iu.'?»Mii ;\«;i oi inoi>. .in nui ' lft«»Aft il»l»l'lll lllk ol>»4'i See Univerbity of . IIUI«*. Miiriiii»ii% ' ^''V Ju.stift VoliiiUar> <| Si'i I'li-adii niiiiu vivH St't> Sumni riiicriiiu ^|> Kntli« aiioii Wliero writ made for 8trv| 8ot«ms that til may appear. ai'!m:ai{\N( i:. 95 JXiiiniiioiiN l>rf«Ml 111. iiii-4'il l»> ii|i|M-iiriiui-4'. .S'«c Jlisfii'rs (if tllr rnifi', l\. 17. Voliiiil:ii> ili«>|H>ii»iiiu u Itli liiiM** S,r I'l.'a.iinu' I. :17. filiiiK I'Ica l»4'loi-<> a|>|»4'nriiii4'4*. Sri' Siiinmjirv Action '1. rmi'riiiu ^|t<'4-i]il lliiil. Entering spcciiil l):iil iind ;^'iviiif» a notice tlicrcnf sipn'Ml " Attorntv for drfoiuliint," in u sufVu-iont iipin'iirjinco. with- out (iiMin'4 rxprt'ss wonU of appearivncc. Fhmin'j v. Sltmr, C. .Us. 117. .4p|»«>iii-:iiic4' |4» \%'i-it. .S'*y County Coiir* \'l, <'iirn/ v. T.nw»tii-iiii4-4>. Wlicrt' writ cannot 1k> Hcrvcil pfrrtonaliy, atnl an (uder in mado ft)r 8< rvio<» l)y puMicalion in (lazi'tte for ono wiM-k, it setMiis that the (icfcndant ha^ tliat week durinj^ which ho may appear. Cnluell v. li<>!>rrtin,i, 1 /'. ,{ Ji. 4Hl. .4l*l*OI^Tlir.M- Ol' 4»I'I'IM:II. 1- Il»|-Il4»ll|- 'V|u*it4'l' ll4ll4lillK 4>V«>r IC4M'4»«'4>ry of INm**!. ^Vhere the .Tustices of the Peace at the General Sessions had always appointed tlie harl)our master annually, includ- in^j; iiirn in the atnuial list of the ])arish ofticeis, a!\i4»ii«'i**> of K<>\« ri'iiK*** By IIk Act 18 Vio. ciij'. :5s, tlif (\)iniiion Comu-il of St. Ji'lin in autl;oii/»il uiul tiiiiuwt r«'»l to iii>p()int, luul iilso"to n inovi' mill ri'-a|>pi)int from tiiuf to time, us may 1)0 ox- iK'ilii'iit," two CommissioiuTs of St-wcraj;*' and Watt r Suit- ply. Hihl, That tlif ai'i)oiiilim nt was diiria}^ the j'lrasiirt' of the Coiuinon Council, and that tliey wiic th.' ju-opcr judges wht tiler it was " ixpedient '" to rtniovo the Commis- sionern. /■.'.'■ jxntc Srius, (I .1//. 2'l'i. :i l*ai-i»li 4>lli4 «*r H4>H«»ioii% |.4>K>ilil> <»1 ili'riinu: A. was, at a parish moetinf;:. nppointtd to the otlico of collector of rates for the parish of \V., and a list containinj.; Lis name with a nnmhi r of otlu r parish otiicers was duly certilied and attesti d, anil forwarded to the chrk of the peace. On the list i»eiiig laid hifore the sessions, a resolu- tion was passed reeitinj^' that, whereas a sutlicient numh' r of collectors had not heen elected f.>r W . (and several other ]>arishes named^ resolved that additional collectt)rB he ay- pointed, and K. \\a> appointed an additional collfctor for the parish of W. On application for rrrdnrdri, contradict- ory atVidavits wt re read, those in support of tlie applica- tion stating that A's election was coiitirnn d, while those read on shewing cause stated that the s» ssions, instead of confirming the election in the usual way, appointed the same persons to the same offices, adding K. to tiie list. It was also shewn that neither the chairman of tiie parish meeting, nor the pi-rsons who hail »-lected A. had paid their ta:;cs. ILU (per Allen. C. .!., and Weldon, J.^ .that hy the re- turn of the chairman, A. was collector lie facto, and while Lib election stood, the sessions had no j)o\ver t4>«. I«> OilllN>|-S tl|)|M>illt«>«l llfOr4*4> l'4'KlllilliOM>>. .SV. Stiihitc 2, l>i< hit' V. I.iinniin. 1C4>4cii4'<>i |4» 3i|»|>4>iiil A|>|»riiio4>r<» :\4>4'4>«»«»i|y 4»f <'4»V- 4'iiaiif |4» l|>|iriiiH4>. Iiilaiil Il4>ii'. /?«•' Cov.niint IH. 4|>|M>iiii»ii4>iit %1 iilMMii Iiiiiilafi4»ii, i«» mi ti|»|>4iiiiiiii4>iit lui' Iil4-. Jiijilin V. I >iiii(lK|4>4li4lll A4l. Src rit';i(liii<; I. r»(», Piitti VAoii V. Ifiiiiliiiij. at I>ii 4>4-|4»r*i 4»r Itaiik. >'(■ iJiuik. or ^ :ihial4»i'«i. Sre f,iin(ll(U\l and Ttnunt. Of %|»|ll*ais4>l'«i. iS'tv Liindltn-d junl Tenant. S'C Covenant. AI*l*0|{TIO\^li:>T |T|AC^i:«i. Tir<.|Kiss 4>ii tU4» l4>tH 4 laiiii V4>r4li4i 4ii4>ii4>nil. See Trespahs 1\ ., U U'luu- v. Smith. Ai*i*it ii^i:iiK. >«4 rssil) 4»r|-4>4|ll4>«>l |4> li|»poill|. Ser Covenant, H'ooilny, Pittn. il>p«»iiiliiiK »t'. Sc Laudloitl und Tenant, V. 2. %ri'iii:M'iri:. iiilani < 4>iivi4'ii4»ii. A conviction of an indented apiJientice for making :! 1 :l !■■■ 1 :! 1- *>s APPHoriUATION OF TAYMKNT. brooms confnirv to an Mj^rot'iiient oontaiiu"! in an indrn- tii rr wliic'li 111" t'Xt'Cutiil while an infant, is l)atl. linjiihi v. i/(f/rv. 1 All. 100. Tlu' provisiouH of tlio licv. Stat, raju 1:M, s<>c. I), apply to all in(K'nt'ir«'8, whotlior tin* apiu'cnticc is al>ovo or nndcr fourtton vtars of w^v, jmd nnK'ss the rtijuisitcs of that sec- tion arc coniplit'd witli, the ap[)rt'ntic»' is not liahlf to im- jirisonnicnt hy .Instict-s nndcr the IHth section of tlie Act. 7/(»//(>: V. /^^)»/^■^>//, 'J'r'oi. 1 Pli^l. 171. Ari*i{oi>i{i I'l'io^ oi' i>%iui:>'r. l>(-2iliii;;«. uiili Ohl siimI \r\\ I'iriii lti'iiiillaii<*4'«t l|> l>li<-alioii 4>l'. Dt'ftiuhint ht'iii}; intlc'htt'd to a firm, of which one of the plaintilTfj was a numlHT, after th«' transfer of the debts and businfs.s of that lh"ni t<> the plaintifTs, continurd to deal with and make remittanees to the new hrm, with a know- leiige of the transfer. //'///. That the jury were warranted in tuiding that the remittances were intfiided to be, and wtre prOj.irly ajiplied by the plaintitTs, to pay tlie drd)ts duo the old lirm. Ksann v. Ihiuu, 3 All. 417. \%aiil of l*rit ii>, .So iJills and Notes V. 20. set aside awart .SV*. Bills and Notes V. 17. .4|>|>liratioii hv law ^4>t-(»ll and |»a)iiH>iil ItiKltil of ii«laiii lo «»lio%t a|>|»i-4»|»i-itQiM»ii «»ii «-r«>*»*> i>\aiiiiiia- Ii4»ii of \t iiii<>%«««><«. :Sei' Evidence VIIl. 7. '%% Ork aiift l.aboEii* %vr«><'in«*nt to appropriate to«t ar r«>Ml. iSee Assumpsit III. 2(», 40, 54. ]Vl4>ii«>> .4ppr<»prialr. Ol' i>icoi*i:i. Ai'i>i III i.'s AM i:m. ,S',, Cii'Wii (iraiit. I. iiiiiiTKi'i lo^ \yu iu iitn. 1. Hi-nMis-'ioN AND Ri;rF.nF.N(F.. II. Hkvocation. in. M\TTi;r,>^ Vri!ATiN(; A\vai;i». IV. Ski 1 iNii .\si!«i: .Vw ai;I>. v. MiSc KI.I.ANKOIS. sriiMlSSldN AM> KKFF.KKNCK. I Y Huljiiii.ssion to iirliitratioii ullowid tn hv tiia It* a ml*' of tlio Suiircinc Court mulcr tli«' .\ct of rarliumcnt 1> and 111 Win. 11 Leap. IT). h«>f dnn. Allot v. .V»/ ;;>ti v. Mmiro, 2 Kn r <»»»(), 11. llKVOrATlOS. l~JoiMt Miiliiiiissinn I'oiTci|iiii«> or Roiid l>iiiiinK«**>. One of two persons on tljo same side may revoke a joint sul'inissloii to arbitration : and such revocation will be a forfeiturt' of a joint and several l)ond by both, conditioned to staiiil to, obey and perform the award. Ilathtuay v. ^''"'■. 2 .!//. 'iOT.' ^Ml» n arbitrators, after a revocation, make an award 100 AinuTn.vTiox and award. wliicli is uniinpoiiohetl, the amount awiirdcil is u propor Tii'-asiiro of (lamagcs in sin notion on tiio arbitration bond. fhid. '2 \olii-o to ii'l»ili'iilor«» iittt to |>ro4- dr^tiroiis to i'4'v<»k<> - Prii«'ti4'<>. On a rt'fi'rcnco undor a rule of Conrt, notico given by one of the parties to the arbitrate rs not to proceed, eannot. since the Act 7 Win. IV., cap. 14. sec. 27, nlT» ct the vahn'd to [h rform an awartl, it is a good [>lea in bar, that i).irt of one entiri; sum awardi'il by the arbitrattn\s, arose out of a matttr not included in tlie sui'mission. Hill v. Coif, I K'lr 1.S7. ti~Wiiiil oi \4»ti4-r. Where a (juestion upon a di-put.-d boundary was left t.* reference, and the arbitrators informed th'- parties that they woiild employ a surveyor to make a survey of tlie land, Nfhich they were empowered to do undtr thi- t< rms of the submission, before they made their award ; but they n» vt.r. thcless proceeded to make their award without any such survey, and witho\it any not'ce that tley had changed their intention; the Court set aside their award. P>>t'. il rr 18'J. :t iward l») tuo \«i:lioiit iiotici' to tliird. Wliere a cause is referred to threo arbitrators whos« award, or that of any two of wiiom is to be Ihial, two of these caniiot proceed to make an award without givin;^ otice to the third. lii>jin>md and (inotJur v. Lnhi', i\ Her. IIG. AKHITIIATIOX AND AWAIU), 101 I I iir4>ifaiiiil}. All Mward dircctin}; " scctirity to 1" Riven mi a cortniii pfirt of the property of A. I?." without stilting wliiit part, is void for uneertiiiiity. /inriidi/ur v. litivini/nr, ('. MS. I'JM. H liitrri'Ht l*iirfiiilil>. Tlie(\Mirt will not disturb an award made under a rulo of rcfereiiee. ou tlie {^[rounds of interost and partiality in tlio arliitrators, unless tile interest or partiality is very clearly shewn; especially [per Parki-r, 7.) where a party after dis- coveriiif; this had an opportunity of applying to a Judge to revoke the suhuiission. of which he has not availed hinisolf. JJni/il \. HnsLiiis, 1 Kirr ]'.V2. tt'cniiciif <'4»iiiitiir4>. Ser Pleading I. 10. H Ainoiiiif <-\4-«><>(liiiK Ffiiall). All award i^ not invalid hocause the amount awardt il rxoeeds the penalty of the arbitration bond ; neither will the recovery bo limited to that penalty iu an action on the award which proceeds on the mutual submission of the parties. Src l\rt \<»|>ro\i<- Hioii ill l)(i'4>4'iii<>iif for ii%%iii-. An agreement to refer matters in tlitTerencc between the parties to ArbitratiiMi, nnide no provision respecting the costs of tl'.o reference. An awar.l was made stating that the Arliitrator found for plaiiititY the sum of S-iOO to be paid to him by defendant, idaintitTand defendant each pay- ing their own costs. Ihhi, That as the clause that each party hhoiild pay his own costs, '. loO. *< i\\ sird iiol t'ollou iiiK ••iil»iiiis«.ioii. By agreeimnt of referenc« between partners, the Arbi- trattas were to award as to the division of the partnership I'roperty, part of which was real estate, and all matters in dispute relative to the dissolution. The Arbitrators merelv i! I ii 1 102 AlUUTIIATION AND A\VAU1>. A awar.l.tl tli:it t!i' ilifnulftut sliouM pay ih.' ithiiiitilT a sum of mouthy. //(•///, l)ail bm^auso it ilid nut lUcidc an to tho . and C. or any two of them, they agreed upon an awaril, and it was drawn up, signed by A. and 13. and delivered to C to be signed by him and handed to the parties ; C. dis- covered a mistake to which A. and B. consenting, the award was corrected li time liuiited. WtUnii V. A. /•/• I li iMli';il<»r«i All award n: account of arbii /.| \\ Ii' n a vt'ri subject b. (he a mil i>f Pi brenci iiii; til • agreem* el iiu file jiDH.'i-ii award c.iild iii> that the power ( turn of damages was "all matt- 1 defendant eredil li' a Inf jiayiiicnt /.'•'•. 101. <» I'lirtlHT iiir \\ ie n ulli r f'T the parties 1 uiade a ('(Hiimui i'- :.rxiu-r in '' ■ratoirs obi', a * n them Hw v..n(l thertd.'v ; aside, though tl liot iulJuenceil /'""/ V. P(>ir,r, I 7 liii|>i-o|»«>r r* Where arbiti t'ie award will 1 '"iity of their Ibul. AKl'.ITHATION AND AWAllD. 1o:J ,f liM was corrrcti'd mid Ki;;n«il liy all tliicc, luit not withiji tlio tiiiif liiiiitcn V. !\rrr itiKi ('>niii>lnlt, li,r. "JHO. I Is i>ili°:iloi-s 4>\rr(>«liiiK |i(>\«4*i'. All iiwMi'il iM.'ulf miilt T 11 rule of rcfrrcni-c. '^•■t fisiilf on ai'Oiiiiiit of arliitnitors (xciiiliii;^ their jtowi-r. Sec i'ltinp- ;.,// V. ir//.v"/». />•<•/•. lol. ."i ^lakiiiu auai'il in fiivor of 4l4>f<>ii of i-«-tri-riir4' lo iis<-4>rijiiii iiiiii»iiiii «lii«- |»laiiitill - liii|>i'o|i«>i- <-i-<-. Wli. II !i vri-ilict was taken for the plaintitV for l"l(M)() snhjecf to the awaid of arhitrators to he a^^reotl upon, and a rule of r. f< rence, Huhse(|uently drawn iii), which aft« r recit- ing; tli- ai^ri'cinent, directed that the award should li- • iiter- eil mi the j>ox!,,i as a verdict of the jury, — //-/o. That as thi- sul>n)ission WHS " all matters in the cautie,' they could not i^'ive the defendant credit for an item wliicdi could n/(, ll-r. 101. a I'lirllier iiiroi-iiialioii an«'r rlo*>r of r\ ideiirr. \\ hi n after the evidi-nce had closed, aud the attorni'v.-* fur the [)arties ha«i left the room, the defendant's attonun' iua(h' a communication to one of the arhitrators respecting J'- :.;'»i'ier in controversy, in couseiiuence of which the '^ t::;tu):s ohiiained furtluT informatit)n on the suhjcct, and y. of them swore that his decision was Jnuiterially intiu- v-.i;«d therehy ; un award in favt)r of the defendant wa^: set aside, tiitiu<^h the other arhitrators swore that they were not inlluenced hy the suhsetiuent information. MCauH- l-iinl v. Pnirrr, E.txt '/'. IH72. 7 liii|»i-o|i«'r r(M-c|>iioii ol'4'%'id«'ii4'«'. Where arhitrators improperly receive evitlence ex purte tho award will he set aside without reference to the proha- I'ility of their having been influenced by the evidence, Ihiil. 101 AIIJ'.ITKATION AND A^^AT;^. An awjii-i] will not ho disturlx'.l wlioro \ho witnossos wore (^xiimiiu'd witlnmt hi'liij; swon;. iilthoiij^ii tlio riilo of rt'f»'rt'npo roi|iiin'tl them to ho sworn if the party oltjcctiii}^ to tjjo iiwiir-l wi re lu'cscnt and consented to sucli i'\anuna- tion. Jitilln/ V. (iilltm, 11 r. I'JO. >*'' An award made nnd«r a roft^ronco at S'ul Priiia will not lu' set aside on the ground that witnesses were examined without heing sworn if the ohjeetion was not taken hefi.re the arhitrators. Scclyr r. K-Uii, Ifd '/'. lf^-27. f»— 4>lij«>rlioii«. ^l4>iil«». An application to set aside an award will not hosuR- tained on ohjtvtions going only to the merits. /•'»;■/"•< v. Lord, ('. M-i. «;o. 10 l>i<«(-o\ CI') of ii<<\\ <>« i<(*. 11 -\uar>i«l Srr l'racti( I'rius is ent( i Vic. cap.:5!>,n time hefore ji the award is V. llnJin,!, :! VI i.ailK'H. The Court will not entertain an application to set aside AHBITUATION AND AWAUD. 105 un award iniitlf muhr nil.- <»f rof.'r.'ner. when tli.' awanl wiifl to lif nitcnMi on tlii> postoa i\a a vonliotof a jury when the api'liiaut lias hocn miilty of laclu'H. ^Vf /•'('/'(•( riiU'tit'n \ I. '>• 13— Tiiiir o( :i|»|>li<'iifi4>ii lo «>i-l nsi4l«> ii\tai-(l. An ai)i)lioation to si't asido un awanl ni)on a snl)niis.siou mailf i«nrsuant to tiio Statuto 1) and !•» Win. ;5, cap. 1'), must 1m' made hiforc tlio last day of tin' ttrni luxtaftfi" the publishing,' of the award. <''ir(>r v. .{•inii't, '1 All. •ill. II Annttion to sot asidf av award under a suhnjis- sion with a clauso of consent to make it a ruK' of Court, mu.st ht' niadr hcfore the last day of the term next aftc r till' award is puhlished. Xinifiit v. llin'>ii, '1 All. t'.il. Lt Where an award nuide under an ordtr of Nisi Trius is inttrt tl on the post^a as a verdict under the Act 1*2 Vic. cap.:5'.>,nn ap[»lieationto set it aside nniy he nuide at any tini. In fiirf judi^njont is signed, if within twenty days afdr the award is lillc1. Hi Suhjcrl lo flic saiiK' riilos ]••• iii4»ti<»ii for ii<>\\ irials. Motion to disturb award entered on postoa as a verdict of jury, must bo governed by same rules as motion for nuw trials. See Fitulin v. Ke)iiiriir, Her. !>♦». 17 I iii|»ii-<> JuiiiiiiK uilli ii'l»ilral4>i-«t. Where the submission to arbitration was by mutual bonds, conditioned to abide the award of two arbitrators if made by a certain day ; but if they failed to make an award, then to abide by an utnpirauie to be made on the same day. IleUl, That an award nuide in due time would be valid as the award of the two arbitrators, althou<,di the umpire joined with them. Ffnjunon v. Miinro, 2 Kerr 0«)0. The name of ij, i*. was inserted as umpire in the lOG AKr.ITKATION AND AWAKD. (.'ondition of tlnMlrffiuiunt's lioiul, l»ut Dinittnl in tlmt of tlio liliiintilFs, 11 Itliiuk lift for his iiiiiiu' not Imviui; ln'i'U lilU'ii u}». //<•/'/, Tlmt the uwaitl was not vitiuti-il i»y Ji. V. join- ing with till' two lu-hitriitors in niiikin;; it, alliioiign tht-ro was no mutual Huhnii.'i.sion to him. Ihiil. Arlutrators counatiiit to dtciilf mutlLTs of Law. ,S«'f' J-\iiiits V. Kitinoir, Ilrrformani'i'. .SV' Murks V. .U./rA.s a J\,rr ISO. V. Mircr.i.LANT.ors. I — A\%ai'o*>lrti. An act'on of trovir was rifirroii hy onlcr of Nisi Trius; the arl'itrators awariled that tlu' defendant sh.tuld rrsloro the proj)irly to the plaintilT, or pay him I'l.VJ. Il'l|M-i'atioii (»l autii'•.•<•' j/ v. I', niu.iiin, lid. i. l^i<)n. linjur v. Ai<'.iiin l<<*ii*>4iii:iii|(> rrriaiiif)'. All ai^Mvement of ri'ferenco recited tliat an action by ibfcndant against plaintiff was petidin;^; that the parties had aj^'ret'd to refer tlie actii^i and all <'laims, etc., between them relating tln-reto, or gro'vinj^ out of their dt-aliugs ; that the action should )><■ discoutiuued, and that the costs of the cause and of the ref»»rence sliould be in the discre- tion of the arl»itrators. The arl)itratorrf awarded that de- fendant should pay i)laintilT I'lODO, in full payment and sat- isfaction of all acci)unts and transactions between them, iuul in full and I'lual adjustment of all matters in ditTerence ; tiiat defendant should pay plaintitT I' 12, the costs of the ; fereuce, and that on payment of these two sums, tlit? parties should bt; tpni hirtn mutually disf'har;:;ed from all < lainis and denninds which they had against each other. if'lil. That the award was reasonably certain, and in etVect ilecided that each party should pay his own casts of the Hction. A'l lilt V. ('•irtrr. Nil. T. isOJ. <> AiuriKlmoiii oi igrt'4>iii«>iiii ol rt'lVri'iirc -K4'lM«»al lo iii«><'r( 4liiii*t«*. ^^ hero the plaintiiT'ti attorney, in making a fair copy of K'M Ai;r.iTi;\Tin\ .\m> .\\v\i;i>. an n^'rco'iirnt (»f n-ftrtiirr nt Nisi I'rins, hy iniHtuKr oinitt' .1 llu' c'laiisi' tliut tlif Mwaitl was to lu' mtcnd on tin- postia fts a ViTilict, tlu' Court r»'fuscil to alli>\v tliut claiHr to l».' iiistrtcd 111 tin aj,'nM'mt'!it aft " the plaintilT had caiiscd it to l»t' inailc a ruK' of this Li)urt. J'ohtn v. l.-nffon, 2 All. ;'84. f < o««|*»- l*o\tri- to ti««iii«l-l*OHt4*ti Si'iniriHr ttcliiiim. An action of assuini>.sit and an action of d< ht jtcndiii;; bc'twt'rn tlif paitiis, tht-y asroid toivftr thnn to arltitratiiu — the award t<» he cnti-rrd on tlir i>ostta as a vi rdict, the cost ofthe caust'S to uhiilr the t vmt. and th-' I'osts of the reffrtnco to he in tlic discn tion of th«' arhitrators. The arhitrators awarded tliat the action of d('l)t should he di - continih'd, »acli imrty payitiu' h\A own costs : that I'lM wen- duf tlif idaintitT in the action of assumpsit, and tliat each party -h.mld pay half the costs of thi- nfcrtnci' — tlic moiety payahli' l |<> 0|-«l4>r 4'Osls ^4>l oil'. Where a case is ref» rred at Nisi Trius, and judgment on till' award i^^ to he entered, the Judge of the rourt of Ni-i Prins may make an order for full costs, where the plain- titT'fi demand is reduced hy set ■ oil ; and sucdi order nniy l-e made '■'• }iaiti\ Scrh/r v. Sti/lrs, :i All. 2 Ml. 9— I<4*r4'r«'<'«« %% Ik'ii «-oii<*i«l<'i-i>«l a*> aK<'iil*> *>t' |»iirli4'<« ill •ttatiiiK H('<'4»iiiii*>. I'laiiititT hein'j; lessee of land, assigned one half of it to the defendant, who entered into a bond to pay the plainti'T for half the buildings, such sum as twt) arbitrators shoul I determine bifore a certain day ; the arbitrators not having been appointed under tlie bond, the parties afterwards agreed verbally to refer the valuation to arbitrators, who made an award of the value. Held, That the rebrees were Ai;r.iri;\ri()N and awaiid. lO'.l tli»' au'i'ntrt of tho parti^'H to Hrtllf tlii« vjiluc, uii'l tliiit tlm |)l!iiiitilT iiii;^lit rt'covt'r tin- iitnouiit iiwaril.il l)y tlu'tii, um lui nci'ou !it stutrd. Cor.im V. 117/. 7,,/, 1 .1//. '2\r,\, 10 roiM-iiriTiil \rl% %% Ih'II not roiisiilrrril ••iirli. Am jiwanl dirortcd that tlif d-ft'iidatit hIkimM pay tli«« liliiintitT II Slim of money on a certain day, and tliaton hucIi |-iiyincnt hfiii}; iiiade tli-' difrndant should he rntitlt'(l to nctivt', and thf iilaintill should dilivtT him two parcrln of sli'epers thill Ivin;^ frforiiiiiiir«' of iiuiii'il I'iii- lieiilai- Im-«':m'Ii iiiii»f Uv «>iair4l in ili<> ailtitration hond, or on the award, tjiou'^h such facts do not aii|)e:ir on the fa<'e of the award. Hiihoiif v. Stiihnrfi, I .1//. :{.->( I. i:i ^taliii«> 'I'akiiiu \«>rro jnnii'i to authorize an awartl to he entered on the po.stea* i^iuieif — Whether judj^meiit can he si;^ned on the postea even in term, until the expiration of twenty days after til- inytiif award. Hce liroicu v. Iliidinij, 3 All. *240. II - .\oli«-«' ol.itdioiiriK'd iii<'«'liiiK. Necessary to give notice of iiti adjourned meeting,' when tlit3 parties are not present at the adjournment. Qiut-rc — ■ Whether notice to the counsel in u cause which is referred is uutico to the party. .S'C Jirotni v. < riirrlcr, '2 .1//. 124. 110 A];p.m;ATiox and awaiid. •At ', ■ « |.^ ^^ Mill of (lii-illis«>l l'r<' V /•'/•(•'.'.•»'. I4i l*iil»li(-:slioit of a\i 3ir%4>rali<>ii oT aiitlioi-it> - \i-l>ilr :ilor'«> aii:lioril> to 4l('t<-i-iii)ii<> litflits 4 4>r- taiiit> . \\ lit It' eaiise referrnl to niliitration and tla^ arbitrator arriv- s at a eonilusion on matters referred to liini and rt- diu'i s such decision to writing', and roniniunicated same to parties, tile awanl is comi)l« te and it is too hito afterwards to rovctke bis autliority. An autlicrity to arbitrator to tU'terminf svlu'tlur pbiir.- tin has " any le^^'ul or wliat rij^lit in t aeb of said claim or claims, and the luiture antl extent of such rij^bts" extends to rif^bts ie^al or eijuitalile in fee, life or years, and whetbtr in ])08S'^'ssion, riinaindt r (>r rrVt rsion. Ci rtainty to a common intint is sutVicient. Mihtfr v. Jin/'I-jr.^, 1 I: ,( /;. ST. 17 Awai'il iiiailr *«>iil»*.r4|iieiil anion Via} in;; pro* <-< -etliiiu^. '1 lu' Court will st:iy action en nn.iliuu wbt-re an award has bten made in uuitters wbert.- objections to award are properly (luestiuns for Court to dt termino and not properly deUrminable hy a jur\ ; ami party not compellable to plead the award. 7//. th AMioii oil %uai4l Alh>u«'hiitititT aj. CUU. Ift- tll<'!.M'(l iiiipi'oprr roiMliirl o( \i-hifr:itoi-s iiiswri- iiiu :ifii«lsi\ ils itfoi'iicy dniwiistf awarti Ix'iii;; AVoi ii<<} oi' oii4> party. Whtrc arbitrators w^rc ciiarj^'cd by the pbiintilT that in inakiii;; ihi ir award tht-y went Im th( al»scnci' of tin' phiiii" titV to the otlicc of tiio (b'fondjints' attorney, and tliat the ||cfl•Il(blnt^■ attorney, ay ho bolii vod, inlluenccd tlio arbi- trators in making *,hi,'ir award whicji chargf wan distinctly (b nird that they wvro infhieni'eii <'r<'ii Iia4l. ^■T. I -!*«»« n, 'A !<< 1 The I'ublisliin}; of a newspaper containing libellous re- lloctions on >[eniliers of the House oi' Assiiuitly, is not such a breach of tli" privileges of the Assembly as will justify the arrest of the pulilisher, and subserjuent coniinit- mont of him to prison, under the S[)eaker's warrant, made pursuant to the order of the House. Jlii^l. No power of arresting, adjudicating, and i>unishing by imprisonment in such cases belonged to th.' House of As- gembly in Nova Scotia, undir tlr grant made of a pertained to the AHsemldy as a legal or necessary incident to a Colonial L( gislature ; nor has been obtained by usage and ac(piie- scluco ; and consetjueiitly no such power is vested in the Assembly in new IJrunswick from the circmnstancf of that I'rovince having bun formerly included within the bounds of Nova Scotia, neither was it obtained by the grant of a beparate Legislature to New Brunswick in 1874. //'/^hile engaged in their public duties, is such a contempt in the face of the House as would justify the arrest of the olTender under the Speaker's warrant, and comniitmg him to prison ".^ An arrest and imprisonment cainiot be justi- lied on any such grounds, when it has not been cliarged as a distinct olfence, and mtiitione.j in the warrant of comiuit- mtnt. J I ill V. ll'liloii, 3 Km- 1. Where an tiie Speaker i iiiijirisrnnien (iiilitioii fron: JK'ted under t no nutlmrity vrrsc with a: (jiithfion does excuse or jiisl CillUlot be le^ directed. //./(/ *i i'ii\ile;;«' A defendan AllliKST. IIB ^Vlu•r(• ati action oi trcHpass luis been l»r()Uf4lit ni^aiiirft tiic Siitaktr of tlio JIoiiho of Ass(inl)ly for an arrest niid iiniirisrnnn'nt made under lii.s warrant, if he clainiH vk- ( inption from personal liability in conscnjucnco of having iK'tfd untlcr tlie order of the IIouHe, when the House had no authority to nnike the order, ho should specially tra- verse with an iiJittipir hir. If he justify generally, that (jut stion does not arise. Uiid (Jitiir<', Whether the order of the Mouse of Assenihly will (xcuse or justify the Speaker in issuin;j; a warrant, whiidi cannot he Ki^ally executeti by the otVicer to whom it is directed. //'/'/. >i- I'rn ilr^r iVoiii. Adefmdantis not exempt from arrest ])e(Miuse ho ban boon before arrested and di^ebar-^ed on "ground of privilege. <,illint V. MrLiiiichhm, 2 K'lr iV.Wi. •J— The privilej^e of meinl)er.s of the House of Ass.'iably from arrest during the session is for forty days, before and uft'r the [trorogation or di.-solution. .SVt' lliHuic V, luuikin, 1 .1// S2(). Anienilttrof H(»us(! of Assembly must bo sued bv bill and summonH. Had. I-MkiIII. SheritTs being rc(iuired by rule of Court (East T. *i, (leo. lll.i to attt-n I Court every t«»rm, are privileged from arrest wlun iluy e.-nie to Frederieton (hn-ing term, ami the par- ticular cause of their so coming will not be eu.iuire I into. Sn,tt\. Chrl., Tnn. T. IHM. a %VitiM>^«. Waivrr. Aiii-liciitioiis to discharge defi-ndant on the gn)und of b> uig jM-ivileg.'d as a witness, dismissed with costs, it ap- iHuniig that he lui.d waived his privilege at the time the arrest U)nk place. (iHhapie v. Fnnjnrty, 1 A'r/r liVl. « \Viiiir*»}hi)i(*>. 7 l>isrliiir^r of'ilrlriiilaiil by oiii* orH«>v«'rai iilaiiilills. If a (Icfiiiilant in cusiody ni an cKooution, is dischari^cd liv one (»f several plaintifTs. lie cHnnot he a^ain arrt-stcd at the instance of a co-j>laintilT. Amhtuii v, I'iirhr, lirr. IVl. N % oliiiilai 11} all(»\%iim 4l«Jrii If a judgment d«djtor arrested on a*-''. .<-/. is volinitarily allowed by the creditor to ^40 at larj^e, ln> cannot lie arrest- ed aj^ain on a new <<». si., and if he shonld l»e so arrest* d, and give hail for the limits, these facts will he a good de- fence tv^ an action on the limit hond for an escape. .SVe Atiilrtiis V, IhiictiiiU, {Uiiiiii VI.) 1> iB'iTst of {iiilu^nient ilrbior -I <*<' of'i'riiiiiiial |>ro«'('s«. riaintilT recovered a verdict against defendant, hut hi. fiire judgment was signed, he left the Province and went to Nova Scotia. I'laintitT afterward^ mad*' eomplaint before a .lattice of the Peace that the defendant had corntnitted p- r- jury in giving evidc-nce on the action in which thf ver'•< It:Miiou|. A ptTsiiii clared a Umk niptcy Act, a I a (U ht incurn tlie hail bond pivcii up iiinl AKUKST. 11, 10 lfn«l:uif t'ov ordi'i' to liolil to I>iiil-~lii*>tini4-i4>ii4 > ot l|i]>li«-aiioii to < oiii't priKliiiK iiiiplirnlioii fo An at1i(l;ivit t»i hold to Imil statt tl -that ctniain ;,'ooi1s were sliipptd at Livcrjxtol on l-oard a certain vt^ssel, of wliicli the (Itftndai.l was master, to ho hroiight to S*. John; that tho defendant sij^ned a hill of ladin;^ to deliver the said j:oods to the ]daintitT at St. Jolin ; that tlio vessel arrivt*! at St. Jolin witii only a i>art of tlu' {^ooda on l>oard ; that the defendant informed tho plaintitT that hf Imd sohl certain jAoods (descrihing them) helonj^injj; to tho plaintitT, of the value, etc. Hilil, That this atlidavit disclosed no cause of action ; that it was consistent with the statements h\ it, that the sale of tho j^ood:' hy tlu> master of tho vessel was justiliahle; anil therefore that an order for hail should not liavf luen mad". .\< /nis v. Coll, Ilil. I'. 1H71. Where a defendant has aitjilied to a Jiul^^e at (TuunlH rs to Set aside an arrest, on tho ground that tin re is no 'ir iliitDi clause in the writ, hr may afterwards, ajid wliilethis iipiilication is i-' iiding. ai»idy to the Court to rescind a -hidge's order for hail in the casf, on the ground that the atlidavit to hold to hail is defective. ^Fisher, .[., iH>tg(ii- tintt''.) (hi, I. 11 lirest wiiluMil \\;iir:iii(. To justify a private individual in arresting a ptrson on a charge of felony, without a warrant, he must not (udy make nut a reasonahle ground of suspicion against sucli person, hut nmst also prove that a fdony has heen coiu- mitt.d. Mnriihii v. J'.ilh, !•:„.•<( T. 1H71. I'i Killlkilii.i. A person resident in this Province who has been (h- clared a hankrujit in Mngland under the Englisli Ihink- ruptcy Act, and who has heen afterwards arrested liere f»)r a lUht incurr. .1 in this l*rovince, is not entitled to have tho hail hond which ho has entere.l into upon sucli arre.-t given up and cauctdled, upon atliilavit that lie was on hi* no AHKKST. way to Eii'jliind to surrt'iuliT liiinsi'lf to the ConimissionorR at a (lay aj'itointrd by them win n the arii st took place. J'hi Mityor ((<•. I't' St. John V. Lttihwooil, '1 1\' >i\K i:{ -A (iifriitlant wlio was in custodv on t'Xt'cutii 111 at the suit of tiio plaintitT at tlio tiino of tlif IJanlvruptcy Act o Vic. cap. V,\, coming into t>j>«Tation, ami nvIid iia> sinco been (KclariHl a bankrupt uiitbr tliat Act and duly surn'ndtTL'd, is ontitlfd to bis discliai}^*' from custiujy inulrr the twonty-fourtb svction. llrtpKillx v. //<<;//-'/,/, -j K rr. 111. II A ct'rtillcato uiiibr tlie present Enj^lisii I'auk- riii)t Act is a discbarj^e of debts im-uind in this rruvinot'. and may be so pliuled in tlif I'rovincial Courts ; but Si inblf, Tlie certilicate cannot in- pleaded j;enerally a> in England, but the proceedings on which it i^ founded inubt be 8ut out. J'nu'tt V. l.^fi<«rliai-;if li\ slicriii %o .liul (.'<•*•> order. A fU'btor wa^ in the limits when the- Act Wl \'ic., v\\\\.1, al)olishing imprisonment for dtdit came into force, which provided that sueh persons in confinement wlien Act canu into force, who were not liable to be arrested, should he ''iiieV .fj^ed from custody, and was discharged by the sheriti / .v. . /u^/^y V ithout any judge's order ; upon an action iju ?». • ;. ...V bond, the Court doubted if more than noiniiKil •;•.,. J ;..._- .duld be received. ]\.r jKirtf I>'uknaH, 3 iV/. -'.*J. 17 PrrnoiiH ollM'r lliaii roii>»tiil»li>s iiitikiiiK urri-si. Where an otTen<'e was committed in the County of G. and warrants were issued for the arrest of the guilty p;»r- ties, persons from another county who came to assist tur AiniKST OF .l^I)(i^r]^NT. 117 constjiMta of the (Vumty of (1. in makin;:? arrests wcro hold cntitltil to tli«' siinio protoction jih tin; coiiHtablr'S. Ilvijiun V. ( 'li'ii.o'ii, '.\ I'li'i. a III. Iilioii liu t|isnoiin>i' Drlorfii r rM'Milioii l*.siiiii^ ot ^(M-<»]i(l <\rriilioii.lMloi«' irliiiii of fii-*«l. ,Sr(' Trespass V. S. Jiivfifii-Mlioii I»rorr*.* irtfilliir. Sir Trt S1)!ISS \'. 7. Arro^f iiiul*'!' «>v<*4 iiiioii (roiii JnHiiirV 4 oiiit lor r\r<'«»- «>i\ V iiiiioiiiii. Si',' Execution IV. in. Krdisiiiu fo dohloi- :iftor |»si>Hloiif of law iiiii*>l itr slirw II. N'V Action at f.iiw 1\. 1, 2. A|>|ilir:ifioii for 4li««4-liarK<* fVitiii iirrr*«t on :i«-i-»tiiil of (Irln ii\4' alii(>l;i> ill liliiiK :illifla% il Rlisi liai-K<> ol 'i' or .11 i><;:fii.>T. Sa' Pnictice \ 1. Alt IK 1. 1>. Sii: Sliipiiin^' Law. A*»*iVII/l". >V. TrLspuds v., and Criuiinul Law. A«*«»i:?»j*Mr.\T. L 1*\i;tif,s LiAiiLE roil. Lani> Damaoks. n. I'ltod'.KDrNGS. School Asskhsments. IH. MiSCKLL.vNKOUB. hi;: lis ASSKSSMhNT. I. Pautiks T.iahi.k ron. 1 — Corporations are liaMo to ho hjjso.ssi'iI uiiilt'r tho Parisli Sc'iool Act '21 Vic Ciip. D. F.r jiirt-' Thr Xrir lininsuirk iiH'! Ciiiiiid I llitliviiji itml Liiul ('('., t .1//. 'MCi '2 Joint Sioi'k <'«Mii|»aii) ^aiiK John >»ns}M>n>ioii ICrid^c i'u. Thv Saint Jolm Susponsion lU-iil;:!!' Company i.- ii^t rateable by the luv. Stat. cap. ");{, sto. 17, in tlie City of Saint John, lucanso it has an oflioc there and the aimuul meetings for the election of olTicers is held there. l\r inrtf The Saint Joint SusjxnHion Jiridjc (^luijuinjf, H ,-1//. I'.H). If a Joint St(xdv Company owns real estate in S'jveral I'arishes, it is rateable unler the Ib-v. Stat, as a resideiit (tf that Parish in which its principal l)Usine8S is carried on. and as a nou-resident in the other Parishes. Iliid. '.I l*ari«.li -"\t» l*oor. Py tiie Act II Geo. IV, cai>. '1'), all the annual expenses of the York County almshouse are to be assessed on tin several i)arishes mentioned in the Act, accordin;^ to the num]»er of poor eacii parish has i:i the house. Ilfhl, That a parish having no poor in the house could not be ussesstil at all. 7i< {• V. Jiutiies of York, ('. .Us. ItlS. 1 1 poll whom OuiM'i- ol l.aiitl. An assessment made by connnissioners of s -wiTs, uud r *22 Vic. cap. o:3, sec. 10, must he upon the owner of tin- land by nam»-, and not upon the hunl itself. Thr Qi(.-ni v. The ConimissionrrH, (fc, aii). The E. .v N. A. liailway Co. purchased laud upon whicli there was a steam mill ; part of the land only was use.l for the purpose of the Ituilway. lldl, That tlx* null not being a i)art of the land so used, was not exemi»t from taxation by the Act 33 Vic. can. 4r». Ex p irU- The E. d .V. American Itaduay Co., Mich. T. 1871. (i l.iriKciiai ASSl':SS>rKNT. ll'J Tilt w)nls " niil and personal property" in tlie tirnt section of the Act are limited and ex[)lained l»y sec. li. I!>i'l. (i |,i( iiteiiaiil f»ot rriior ^tiliii) 4»r. The olVu'ial hahiry of tiie Lieutenant riovernt)r t»f tho Trovince is not Hahh' to he asHerised under thfCity Charh-r of Frnlerieton, '2'2 Vic eap. H, as an income " (hrived from iinv trade, profession or eaUin^, within thi- i'rovince." Wihnot aiitl Kitchie, J. J. >litisrntii-nti ; per lUirker, J., that till Lieutenant governor is not an '* inhahitant " of tho City within tlu' nieaniiij^ of the Act. Jir pr(Ml •.iirli. riiimtity had a Imusi- and property in tiie parish of S. \\here he }^t lurally resided, and where he was assessed as ;iu inh:ibilant. 11>' held the (lovernnient a[)[)ointment of Commissioner of Works, the ollico of which was kept in Fredericton. and was attended hy him sometimes for a numher of days in succession without returninj^ to his house in S. //'/-/, Tlnit he was not an '"inhahitant" of Fredericton, and that his heing at tho head of his di[)art- iiieiit of Hoard of Works was not " carrvin-' on husiuess " ill Fredericton, which sul)jected him to bo assessed uihUt tile Act "Ji) \'ic. cap. ;3j. Ilidnuvij v. ('uminiitj, () AIL IC.l. M-!\oii.rr>.i«l4'iit. A nun-resident carrying on Inisiness in a Furi.sh, is iuible to he assessed on his persi)nal estate under i UeV. Mat. e.ip. .33, sec. I'd. Ex parte McLiod, 1 I'uj. l'J7. ** I.aiKi l>aiiiaK«*<* lliKliUii><» i«>H4>%*iiii('iit, \% Im'II itiid li<*\\ iiiailc Warrant (oiiiiiiiHsiuiifi!* .New ap- piieatioii. Sfc iiighways 20. l>:nuit;;eH IIikIiu ayti. Set Highways 23. Vli) ASSESS^^ENT. 10 — liailuii) DaiiiiiKr^ \o»rs<.iii4>iif. In assessing (liinia^'c^^ for latul takrti Un- railway ]>nr- popcs uiitlcr tilt' .\"t '2M Vic, cap. I'i, tln^ jn'T' l>*'^i<^''fi the value t)f the land takiii for tin- track, may ^^ivl' datna^is for the ineonvoiiit'tico causod to the owner hy the severance of ont> j>art of his fanu from the oth'-r. Ghc'ur v. Frt'ilf'r- icfoii lh-ivi<|iiciif <1iiitliiK4>. Th<' fact that the plaintilT has been paid damai^es for an alteration of a course of a stn-am tlowini: throu;j;h hi.-. land done hv Pkailwav ('(Mnmis>^ioners under the aulhoritv of the Act lt> Vic, cap. 17, will not [)ri'Vtnt him from T'- cov»rin<4 danuigcs caused by the subsequent overflowiTit,' of his land in const qut-nce t»t tl tho alt> ration. MrLntd v. ( Eiiilif'Uf, 1 Ildii. 571. 'iinm ipropor construction "\ (.•isioiers E. d. X. .1, 1*2 l*ri\ ilt4> 4-OV4'liaill ll*» to 4-OIII|»4>ll«»!lli4>ll. Wlk-re a company was authori/.tjil by Act to i iittr nn private proi)frty, erect tlanis and reservoirs, and ovcrllow lantl fur thtj purpose of obtaining a supply of water on makin;^ compensation to the owners of tht: laml, and in cast.' they coulil not agree, the amount of compensation to be assessed bv a jurv in a manner directed bv the Act, ai:il the Comjtany retpiiring to overflow land, entered into a covenant with the owner to buibl a briilge, over the ovt r- llowage, and keep it in repair while the overllowing c on- tinuetl. //(■/(/, That the parties havi ng agrees I u poll tl It.' mode of compensation the statutory remedy by assessiiKut did nut a["ply. Ilifii Iaii4l l*i-4»\ isi«>ii«« f«>r 4'4»iii|M>ii*>alioii- .^('(■('fkotary 4'i id4'ii4-4* I»4*f4>r4> riKliI !<» i*>sii4> \t i it Au4'iit <>ivii4'r .>4»lif«>«>. 6V*«lll4*lll ^'4»llllll4>4>|- til\«'H. A New Brunswick volunteer, who enrolled un lo>r ol Vic. cap. 1, of the Parliament of Canada, is not ontitk-d tu ASSKSS^[I^NT. \'l] tli(> » xtMuption fnnn City, rounty and PariHli rates an I'axiilioii ill llir «'ll> ol l'i<'iiiU oil lMi«H.'' A cK'rk in tlu' rn)vin<'i:il S.-crt'tary's OiriC'' in FmU'rie- ton. wild rosiilcs outside the I'ity is not a " person csirryinL,' on l)nsiju'ss" within the nieanini,' of 'lit Vie. eap. X'», h« c. '20, so as to mai liironir iii> Ii-skIc. iii'of'f'soioii, or ralliiiu uilliiii IIm* I*i-<»\ iiirr, liiil not troiii itiiI or |M-i-soiisil |»ro|M>ri> Y|«'siiiiiiK ot \\oi-perty. and that it was hahh- to asst-ssment under -ti N'ic. cap. :?.'». 'V\\v in- come of u merchant or j^rocer derive 1 from his tra h-. pro- fession, or eahin^.'. is not income from real or personal pro- ])i rty intended hy the Lej^islature to he exempt. Stcrlin'j V. M'ljinr, ,(c., Citif nt' l''n'ihrirtiin, '1 Vmi. 1.").". 17 roiriuii liM'oi-i>oi-iil<>- orHHiiM'iil liiu \uriil. A Company estahlished ahroid, e irryin.? on hu'^ine^s in i'vidt rii'lon, from \vhi(di it derivt>s its income, is hahje to assessnunt. Ilifnie cr i> , '1 Vn>i. 1*2.'. It does not nnittcr that the head otlice of the Coinpanv is in another place in the province, and that the a^'ent niav la- under the directions of the su[)t'rintendent there, an 1 tolls are Sent to him. Ih. I«» I'oiriKEl < or|M»iiilioit Itiiiiirli llsiiik liiroiiir. A forrieii Hiiiikine Corporation having' a hranch in Saint John, received m the course of the year hy its hnsi- ness by such hranch $'2lt,t)(>0, but during' the same perio I .sustained losses in its business beyond that amoujit ; the 8 iil^ Ul ASSKSSMKNT. a^i'iit of tlif t'orporatioii Imvin^ disputitl liis liultility ti» 1)1' jiHHi-HHt »l on iiu'oiMf. on a smriiil I'lisf statctl foi opm- iou of Court. //. I'M. Ift < oi |M>i-iilioii ^lork I'ri'HoiiH siilt»riiliiiiu lor < oii- Irari l.iiil>ilil> lo ii«>*><*««siii('iif«« — ^MliocrilM-i' and ^lorklioltlri* %<'«T»<»ll> ioi- lliiilllx-iiilU ••lliil'co l)i|iialil> ^al«- l'iii-|li«>i- liaBiilil). Tilt' pliiiMtilVc'ompaMy wa» about iu'liif^ or^'aiii /-»'ktil to tako Htock in it, and Hubsrriln d his name to a paprr pr« purcil lor that purpose, a^'rcein;,' to take ton sliarts. //(/ therefore bad. 2nd. That tlu- Act JiO \u cap 1-J. w hifh authorized the directi>rs to restrict tin assessment to one- half of the stock sub.scribed, would not ju-tify the assess- ment altoj^H-ther exchhlin;^ any portion of the stock, but at most allowed them to maki' an e 1. and the lirst lujsessmeiit wits tlnrefore ille^jal. Nint- other assessments were tnade on defendant's stock. no:;e of which beiiii paid, a jiotice wat> given under the Act ;i2 \'ic., cap. al, wbi( h included nil the assessments, and a sale was made, after which defeiul- ant was sued for the residue of the calls. I hid, per Ititchi^ . ASSKSSMKNT. 12;) ('. .1., and AlNii, J., (Wililoti, .1., iliHMinifii'iitr) tlmt thu fact (if tilt liist HSHt'K.simnt licm« un«'t|ujil ai-ioli wlinc IuikI liro. I'.\ Act "J I \ic. cjiji. l'.>, it is providt'l thiit there shall ]»■ asscHHod and collerted annually the sum of ouu cont an acre (-n '^'ranted wilih'riiess land : hut it is also declared, that no iiwiKT ol' lands shrill lie taved inider thi' provisions of this Ai't on lands in the parish where he resides. Tho I Jiiv. Statutes cap. ."»;}, sec. r.», declares that, " for the pur- |p(iseH(if assessnit'nt, evi^ry person carrying on Inniness in nil} I uri>li shall he deemed an inhahitant thereof." //■/'/, That, us the Act 21 Vic. jxtintetl out tho mode of Kv\inL,'and assessin^^ the tax, the mo h^ of a^'sessment nro- vided hy the llevised Statutes was not int.'orporated in this Act, and that section l'.» had no application to it. Besides, llu hi^ishiture has used the word " liesident " in a sense dillennt from that of " Inliahitant," the furnier havin^^ reference to an actual and not a constructive residence. Ihe plainlitf bein-,; a non-resident, thou^^'h doin^ hufliness in the parish where his land lay, was therefore held net to he exempt from assessment. Mnrclti v. 77 - ^liarrliol4l« r t«i' rail*, \olir4' ol a.>H4><«<«iu«-iit HialiiU* r\ |>4>st l'a<'|i» <'oiiH|iii4ti«Mi «>t. liie Act ;{2 Vic, cai». .'>!. passed an auieuihaent of tho Act inciirporatin{< th,- Kuropean ami North American hadwuy Company for extennion from St. John westward, iillrr .i( clariji^' tluU it may he douhtful wiiether the aub- siiihers lor iock were liable, and whether any ussebsmentrt could hemade upon thorn by reaHon. 1st. Of the wholo s 1 I 1-21 ASSKSSMKNT. of the cMpitiil stock not liuviii<; been Hubscrilu'd for. •Jnd. Becnusc $;")(), 000 had not born jniid in at tlif tinif rciuirtd bv the Act. and 13rd. l^ccausc it was (b>ubtfijl wlutln r no- tiers of the calN or nsscssnu'nts liad btrii urivt n in the manner diroctcd by the Act of Incorjioration. mai'ts as foj- lows :-- l^t. That the subscribers shall be in Id liable ia the same m; nner and to same extent as if the necessary amounts had i>een subscribed and paid as rcpiircd, and us if all assessments made and notices {^iven were niad(^ and ^'ivrii acci^rdin^' to the terms of the Act '>f Incorporritiiii. and the n(ttic •f assessments which have been ui ■( 11 1 11 shall be held as having been rej^ularly itnd lawfully ^'iv in full accordance with the renuirements oi said Act. aihi the snbscribt rs to the capital stock shall be linlde to the assessments ant 1 call s made (tr b to 1 le made. Ill same man- ner and to same extent as if the necessary amount- hail been suliscribed for and paid in as reipiired. and as if the notice and notices of calls and assessments had been made and given as required by said Act of Incorporation. Tin •2nd section Ki^'alizes all acts done or «>rdered to lie deiu by the Company, their otVicrrs, etc.. in ext rcise of the powers given by the .\ct of Incorporation. The Mrd btc- tion declares, that to entitle the Company to recover .^gainst any subscriber or stockholder, a notice shall In given and piddished by the I'resideiit, which notice .-'hall t^pecify the amoimt of assessment, that is. whtther the whole or what part of the subscribed capital stock, and suall rupiire t'e- same to he paid to the treasurer ; and after such pubh ation the Company may recover in the same nuiniur as if the calls for assessments had heiii regularly made and ]>ublished or served in aceordaiH' with the rKjuirements of the Act of Incorporation. Un July lilHh. 1H(>'.>, the foll(>wing notice, signed by the Presi- dent of the' Company, was )iublished : — " I hereby give no- tice that the following calls for payment of the capital stock subscribed to the Kurf>pean and North American llailway from St. John westNvard, is herei-y made, vi/.. ii call of nine per cent, of such capital stock ; a further i-all of eleven j)er cent. ; a further call of ten per cent. ; a fur- ASSI'ISSMKNT. 125 tlii'V rail of till iifi" ciut. : .1 furtliiT call of trii ])"V c-fut ; ii lurtlicr I'lill "1' tell pt'i* ct-nt." ; a fiirtlifv call of tni \)vr ••.•nt, ; ft furtln'r call <»!' ten \)vv ('riit. : a fiirtiitr call of t.'ii iht C' at. : a further call of tm per cut. ; the said smv.t il p-r ot iit:igt'S injikiiif.; til'' whole aiiioiiiit of the sai I ca])ital slock 8ui>scrihecl to tiu> said Company. //• / ru uiaile hy the directors ; and that (lefeadant was not 1' ihlc. 77/. l-iurnji.ni nuil S. .'. litilirn/ ('i).,y. I>iinn, '.\ 'i'i lii«>ol\<'iir]t i:«>i>it«> of lii«>ol\ nit l.iiiliilily l4» la\>i - lion. The A'.'t :U Vic. cap. 'M\, makim,' assessments on real ostiite in th" city of St. John, a s[ie('ial lien on tht> property for two years, applies e«pially where the owner has made an assignment in ii-.solvency. and such lien continues for two years after the taxes accrued ; hut after the exi)iration of sucli i)eriod the corporation can only rink on the estate for the taxes the satne as ordinary creditors. The estate of an insi)Ivent in the hands of the assi<.^noe is liable to taxation. Th.- M t'j >,\ ,(• ., "'" St. Jnhn v. Mrl,,.l, Assi^ni'f, .I'.. 1 /'. ,1 y;. lL>:{. 'i'-\ lkelM>iiliii'«>s liifrrcHi on l*arl> olijiMtiiiu. A Town C\)uncil authorized hy law to assess for inter- est pavalde oii deliejitures issu.d hy the 1> t.ird of Sidjool TriHt"' -. ha- no power to maU" au asaesstuent for interest on tlehi-ntures — !•> he insii>;l il is the duty of a party o')iectinL,' to an assessment to nhvw liriiiiii f'ni'' that it is wrong. Er iiirt<: .\[.ih,r, 1 Ptri. 'i:>\. < oiiiiiii<,>.ii)iii'i-'>« ot H«*\\ n-o iliuiil to 3i«>sr«i*» )»ro|»ri«>toi-<» ol laniU. Svf Commissioners of Sewers. ■ I l-2() ASSKSSMENT, II. Vnocv.v.vi'soH. On l)4'f:iiill Iflidatil. S'(' Piuimgcs IV. Miil ol liiqiiii't. .SVf J^aningt's \ . I.iiiiii ItoiKl llsiiiiaK<'^- A«»^«>H*.iii4>iit. ,s. . i'.cnd :'. 1(», l."i. >i«>rvi(<' ol mil' loi- a<«««>H<«iiiK daiiiaur** II* la> iii See Tract ice VI. M. |_>otM «'-rari*>h ^>< liool \M \iiioiiiit. ^Vht'ro an aHsiHsmtnt is iiKuif undi r the ransli Solio*'! Act, the aBSi'Ssors must f:ivf iioticf thcrtof, in the saine manner as in casts of asscs.'^nnnt for County rates, under 1 llev. Stat. cap. i'>'^, sec. I'J. /•.> ;'7. *i— .\oliin V. 'I'lu M'lyorct'St.ffi'hn, H All. Ml. An asses.sment wliich does not exceed the sum ordered to be levied l»y more than lo percent, is not illegal, /'n/. 4 -4'iilliiiK ^l4'<'liiiK l>illl<'r<-iil ohJiMt**. An application to Trustees to divide a Parish into School districts, and to call a meeting of the inhahitants tn (letennine upon an asseshment under tiie I'arish School Act, 21 Vic. cap. (>. may he made at the same time ; andif, on the division of the parish, three or more of the appli- cants are found to be resident freeholders in the district 1)1 1 ASSESSMENT. 12' for wliich tilt' aHSCHsmcnt is r('<|uiro(], the trustees may eall the ineetiiiK without any lu-w application. /•> jhirtr ]'i-iat«>in4>nt*»-^^li\«*«l ii«»<»4>*>«»iii4>iii. A warrant directing' an assessment for several purjioses ; as. tortile poor; for C\)unty contini^encies ; and for schools ; may lie siitVieient — provided the amounts reipiired for efich (>lijtot are separately stated. Rut tlure must ))C separate assessments for each ohject, and if the whole are so hlended tom tilt r that this cannot he ascertained, the assessment is 1 ad. /■. ' p'irtr M( I>n rn>y, \ I'li'i. '1'17 . if ail assessment is ordered hy the Sessions the warrant may ho issued hy the Clerk of the Peace after the SossionB have adjourned. Il>i%siii«>iii \«.s<>s«.iii4>iit li«>t l»ari ilrlmive < riiioi-ari. W hrrc the assessments for scho(ds, and for the County purposes Were stateil in separate c'irt>' M^ilur, lid. T. ls7;l « < «*tiiiiiuii *«rliool An rrf'asiirrr - lloiid. It will not invalidate an assi-ssnient made under " The Connnon Schools' Act. 1H71," see. 12, that the County Treasurer his not j^'iven ah(md, as directed hy the Act, to account fo; '=c money paid to him as the County School Fund— that uart of the Act lM>in<^' directory only. K.i\ V'lrtr liinfmo,„l, Miili. l\ 1H72. 7~<;«'iH>nil iH*.4>«.miii«>iii *i4>v«'riiii«4> ni«.ii-i4t*>. A county assessment in aid of Schools, under the 12tli see. of ♦' The Common Schools' .Vet. IS? I," need not be separate from the general County assessment, provided the 12.S ASSKSSMKN r. stvoral anuniuts art' distiiitiuishahlc, nor is it uvc rssarv, in oil Ut to sui)ju>rt sui'li an assfssniont, to slu-w any division of Scliool (lictrii'ts. I:.r piutr ]i>n/m(nul, llil. i. 187}}. ^— <'4>iiiiii4>ii ^<'li<»4»l %cl ^<-Imm»I |»iir|»o<«4>«. ->o|il)tiiiu < oiiiH'il 4»1 anioiiiii i4-4|iiii«'«l. Bv Act 22 Vic. can. MT, tlic Mavor etc.. of St. John, were autliorizcd " u\\ or l)i'forc tiif 1st April in cacli vt ar," to assfss tiu- City for cirtain luiritt) mon IScluutls" Act. 1.^71," mc ScS. I The C oni- ivS, tlic Hoard of Trust CCS was autlioriztil to thtrrniinc anmnilly tin- amount ri(|uind for tlic support and nuiintt nanct of Schools, etc., in the l>istrict. and " prcMous to the ordi r for assessment fur general ( it\ purposes," ne)lify tlu' Common Council of the amount rKpnred. and the C<»uncil was to cause tiie same to Ik levied and collectnl at the tinn- of levyin^Mind collect- ing other Citv taxes. //«/'/. That the Act was ir.iperativc as to tht time of n(.>tif\in;; the Cummon Council of the amount re'juired for School purposes ; and therefore, where the {,'eneral City assessment was ordered ontheotii March, hut the Hoard of Tru>tees did not notify the Council of the amount required for Schools till the 2."*th April, an assess- ment made for the latter jiurj'ose was had. /•.'/ pirtr I'anili 1 /'»'/. 'I'l'l. U S«'llO«»l %<««.<-«>^lll«-ll| — \of i4-i' 'I'illH- %III4»IIIII. A School assessment muier the Art 21 \ ic.cap.l». .^ec. 1.'), is bad if thirty days have not ela}»sed hetween thr puhlica- tion of notice of the assessnunt. and tut ;{. sec. 12. Also, if the amoutil ordered for as.ses.-iius' hu i (OllectlUj; exceeds I;"* per ce*ut. (Ui the asiiessilleut. li'-jtn ' V. .hii'lini . o . 1//. •• !.'>. lO 4 4M'|M>i':tli<»ii \;^aiii»l \\ lioiii ^i«m'U iciiial % aliie. An as.«5eshment a;;ain?>t a .loint St )ck Corporation nni^i be made aj.;ainst the President or Manaj.;er of the Company. Kjl i> shduM 111' made ui>on tli«' actual value, aud not iipDU tiio par valur of tlio Stock of an incorpoi-at"(l (Jonipauy. //'//. < oiiiiM'lliiiK ii*>^<'*«*»iii4'>il ^rliool 'I'rii«*i4><>*i. S(i Maiulainu.s IH. I'.i jhirtf J huor. Ill MlSCKM-VNKOt S. .s. »• Joint Stock Company. I \lllOIIIII of 1ISS«>HhIII«>I||. All a.s.scrisuu'Ut which doi'S not txcrij the sum or.hu'od to he K'vicd hy IM p»'r cent, is n )t illcLjal. Srr /,' jm i v. Mninr o/St. Jnlni, W All. 'M)\ . '■i — An asst'«Min»-nt t' r poll ta\.it' not lived hy a pir- ticular statutt>, must ho onc-ri^'hth of tho aiuoun. ord uvd tu Ih' assessed accordiuf^ to I II'V. Stat. ca{>. .">'{, s-c. II. Ki jtitrtf Shiirhci/, Midi. I'. Im7J. :( < rrliorai'i to roiiiovr 'I'iiiir ol a|i|>li<-alioii. An application for a rirtl'ii-'iri tn r>'niov.' an asst'ssiueiit, should hi niadr promptly. Whorr a party had notice of an asstssnuiit in htfcnilicr, and his projurty was sold under txicut'jiii for iion-payniruary, an application iiiaiir ill I'.astcr term for a cc/-f/or.jri to re move tho proceed- inj;,> was refused, tlu)U;^h tite asseasuifut appeared to have i'liii improperly mad<-. Ivi jhnti dfroir, l All. 'itlll. •I <>«>ii4-ral ^«--.oioii*> -l*ou 4*1' t«» 4>ri-o l*i-i\al«' i-<» i«>siiiiiu wan ami l*i-4->«4'ii<-4* 4>f. Iho two Justices who issue the warrant for sunimonin}^ htiliuldt'rs to determine on the necessity of m private road umler thf Highway Act r)0 Geo. Ill, cap. (i. must ho present iit till' asseBsiQent of damai'es hv such freeholders. I'itt v. '(/( SM.t ,ii(,i (,tU, IS, C. Mit. •n ill 130 ASSKSSMLNT. tt-4'oniiiii*>sioii4>i-H' ii<*t*> not tixli^'ixl liiK'i't'**!* Tile Acts (if ('oinmissiniu'rs of S»\v.rs iijipoititctl undt r till' Act '2'1 Vic. cap. T);), arc not judicial acts ; thcn'forc it is no oltji'ction to tla-ir pnHU'cdings to assess the projirii- tors of land f(»r tlic purposes of the Act, that thev arc in- terested us owners of land in tiie district asseHsed. llitchie, J. (liKfti utii'ntf. F.r jhirtr ('iillii'iin, "i .1//. 45t. So Connnissioners, same case. 7— < oiili-sK-lor \4»tiiiu Iiil4'i-4>*>l. K.. a coimuisHionrr of sc\v<'rs for the (ierniantown Lukt J)iRtrict. ecaineconUa<^! ' •• tlie execution of certain work (xecutfd under tlu'ir vii.'. nd aftt rwards sat ami vntid with tlif otin r comnjissioners, wlun tiiey decided that tiio work had hcon satisfjir.J'ily performed, and onU'rcd an nssessmcnt nn the land own- . .j tn ,..»v for it. //'/'/. That the asstssment was had. Thr (,>»/»■// v. Tin' ('onuniKsiniii is <7 (it riiuitttoun I.iil.t', I Iltiii. 'AV,\. M— A*«<«<'«>«>iiit'ii( on |>«-r«»oii \« Ih» IijkI «-4iii% i'><'«I laiwl :is> ••«'*><»«-4l < liaiiU4> l>> 4 oiiiiiiiH*«ioii4'r*» ol iisiiiie ( n- lioiai'i 1 4>fii<»4'«l. An as.scssnunt was mad*' ujton .\. as a proprietor of hind in th.- district, it afterwards appearinj^ that ii • had convi'\t(l the land to 15. the connnissioners struck out As name and inserted Us : th.' Court in the exercisi' of it-^ discretion refused to ^'rant a cert orari to huy up tiie n- fiessment on lis application. Kx pirt< i 'o%% or oi'i ASSKSSMKNT. i:H 10 < oiiiiiii***>ioii<'rs l.ial»ilif> ->4'Kl4'<'tiiiK ><> ax«>4>»««. iiuui-t', Wlu'tlicr CniiiniiHsiont'rH of Sewcra would be liable to an jiction if tln'v nt'i^lectt'd to make aHHOSHinent rtquirttl l»y Act of Assoinbly. »S'<'(' I'ick v. iu/^//j.s"», "2 I\i rr i'>H7. 1 1- l>o\% rr ol 4 '4>iiiiiii«««>ioii<>i-s A;|(«>i-iiil \rt. riiib-r tin- |.o\v('i-rt ^ivcii to tlio CoininiHsioiicrs of Sowers by tb.' Act 'I'l Vic. cup. M, and 1 lU'V, Stut. cai). t;7. to as- sess for all cxpi-nscs of draining', dykein}^', etc., tlfv may asscsH for tbc I'Xpcnsc of imrchasin;.,' a mill, erecting' a dam aerosH a rivtr. making; surveys and for interest on money liorrowed — itlieSf beiii^ necessary for carrying' out the ob- jects of till' ;\ct I — and f(»r their own fees. I''..r ihirtc ( 'iiUumn^ r> All. bvi. I'i llri'or liilriilioii fo 4'orr'-\, unless the error bus been corrected, the certiorari will issue. /•.'; jhufr Mr. <"in\ nil. r. 1H7M. i:{— .liii-> ol liH|iiii> ><» rt'iiii-ii of paiH'l. SberilT not returninj^ any panel on the writ; dannises assessed by a jury summoned to try issues at the assizea no frood ^Tound for settin;^' aside assessment. Src Wlnrlrr V. (l"fr, 1 Kerr Mi). II— iteilor Ki'iits »l 4;| l.iahiiil> |4> \»%4">.siii<'iit. I nder the Act 'li\ Vic cap. ;{'>. which exempts from tax- ation the income of the inhaliitants of Fredericton, derived from real or personal property, the liector of the I'arish is n(»t Hable to be aBSessed upon the income derived from the lints of his (Hebe. Lr,- v. M^itfor of Frederu'ton, Kant. T. lS7;b l'i-ry iiof«> Kiv4'ii lor anioiiiii ora<»M>H*>iii«>iil. 'S'f liillH and Notes 1. U. 132 ASSRiNKK. liilt'i-fHl lii<*|]iliii«'iil ralK liil('r«'<»l iioi alltiu ril oil H*>«>i><««>iiiriil u lH'i-4> i<-| oilnil 3i<» to. .S( InUTist 2. .%<«H4's*.iii«'iii of llaiiiaK<'*>' .S( (' Jm»iuI. JliilKiiK'iK '».> «l<'liiHll l>aiiiac«>«> liiqiiii-} \riiiir ^ci- liiiK a<>i«l«' i«>s<>H»iii4'iii. iV< rnictist.- VI. .4»s4-iil \<»\ali4»ii. >. .\ssuiiii>^it 111. ."1. i«*M:i>». Si I Exicutcrs iUiil A(liiiiiiiNtr;iti)rs, 411 Jil«l^!ll<'lll ill<>i-ii4-> riaiiiiiiiu a^ snrli. .S'-' Atti.nirv ill. 7. :». at Itaiikriipl. >' ' lljiiikruitt. ('<■ iiolui !.">. 4>l l.iiiiil ItoiMl. .SV' Bond 2. Of 4 <»««'iiaMi itiiHiiiiu' \«.«.imi«-i-. SiC Covtiiunl 7. liiKliI^ ol Itrcai li ol uaiiaiil). •5t<" Coviiiitnt 1. Of l*oii« > ol Iii*«iii2iii« <> 4 oii«.iU«ialioii ii<«>. ii*»(>. Sfi' License or vioiiuau« Of l<«-|i|«>t ill .S" Inmd U Iri on <-o\<>i ClllifllMl liiiK' ii li N" Lundlor IC<>'■'• I't.fd 1\. Om-r Knissiyn •*^' Insolvent •ii iiiist-riT, •'^" lii.soJvcnt """ Licinh).'. '*> parol 'r„ ,| •''"' i^K'illSO. <>' I JtlUf. UilliJ ''^''''' -Vortj^ragel ASSKiNMKNT. IWd ii»i>. Srr Licc'iisi', '1, '•). or vioi-iuau«' i:i4'iii ii^'frnro. Ol ICcpIri ill ltoii«l l>< |iiil> l>4'liv<'r>. Scr houd 18. 4M l.raor %clioii l>y %<«siuii«*i> of a l.ra«t«> iiUJiiiisi i<'«(«>oi'H on ro\ (•iiaiil<« to |ia> lor iiii|iro\-4>iiiciil>, pixinliU niiidril lo iiiK'iTsi 4»ii aiiMMiiit ai»|»i-ai^4*4l ii-4>iii liiiH' it lM>4-aiii4' |ia>al>l4>. So' LancUonl and Ti.'iiunt \ 1. 2. i«»*»iT. I<^4'<>^liili(>ll 4>l 'l'liii-4l l*aii>. Srr t'llOsr ill Actioll. \4r(-|>lail4 4> 4>f' K4>ll|-|t4>4-4»miili4»ll 4»f isHiUII4>4' Si, Landlord and Tinant 1 1. H> l*aiiii(>r A«.l 4 4»-|»aMii4'i'. Srr \)vvd IV. 1. « OHri- |(>asvi;;ii Itoiia fi4l4». \4»fi4-c. >'< In.-olviiit Debtor ."). Ill I'nist -< i(>4lii4M-s. So liLsolveut Debtor u. to 4111 lillllM'l-. S'- Lict'iiHc. «> iMiioi lo tliii iiiiiu'iaU. ■*>'■'• License. <>M'ail4l, \titll4>||| 4|4l>|. •">■'''' ^L)rtgaK(■, 1, ± iH |»i Mlli*.4>S n4MlKaU4' 4l4>l>l Mort lai AbblGNMENT. 4»r ^loi luaur % roliiiK ol l*o%«ci- ol ^itlc lliulilo 4lfll«'4*4l 4'i-<>4lil«»i'H not piii'lirH lo Itoiiii liilt-. >M 1), ..1 111. 1. 'I'i-ii<»l<'r. al*»<» CiM'ditiir. S" IUihI 111. ». A«>*>if;iiiiirii| iiikIi'I- Iii«><»I\ 4■ llolul ill. Of l<>a*>«' — r.\4-<'|>lioii*» «>l>»irii4-liiiK liulil. Sec Actiini nil the ciisc 1\ . L I - 4>f 4;«>f<-aliiiK i:\r«-iifioii 4 oimiili'raiioii l><'li\ci'> aii«l \4-4-«'|»iaii<'<* i:« i4l<'ii«-4-. All iiMHi;.;iiiiitnt of j^'otxls is not ncci'ssiii-ily void, tiiou^'h tlif intfiit aiiil olTict i)f it may bi- to dolVat an oxcciitiou. if tiu !U>i^^niiU'nt l»c nnule Ihuki fiJf for tin- ln!iulit of otlni lijirticuhir er»iliu»rs, and tluTt.- In- a (k-liwry and acci[it- iincf of such fjoods uikKt tlu- assii^nrut-nt lioforo tin; c.vecu- tion is dtlivrri d to tlir Slu-ritf. (Jintrr, What acts will coiihtitutt !i delivery and acctptancf ? Kmicar v. H7((/t', '1 A. / /■ ii:5:>. It is a \:i^oKH\ coiK-^iiU'ratiuii for such as.sii^niiunt, th:il the assignees were liai)le as security for certain existing debts of the assignors, ;ind tiie goods were to be appro[>riatetl t" the payment of those debts. I'rottf of the actual piiyuuut of tlie debts i> not essential. U'lil. Whether the c»)nsideration and transfer be real or li'- titious, and wnetiier there have been an actual delivery and acceptance of tlie goods, are questions for the jury, on the whole evidence. //;«/.. \\ here part of the alk-getl consideration w as interest *i l'ii>\ioii% ASSK^NMKNT. i:jr> inmir} (liif on a boiiil to ii crt'ditor in Nova Siiotiiv, aiiil a l»ili of ( \clian;^'(' dniwii hy liiin on tlir plaiiititr was f^'ivttu in evitU'iico. //'/'/, That a contt-niporanoourt K-ttrr written l>y till' iMrditor wliii'li sjMH'ifh'd that the hill was drawn for such inttTt'st was adinissihlc in r.idfiu'f. Ihiil. 'i |>rr\ ioii*> l«>Hit;iiiiii-iil i:\mifioii Itoiia ti<'»,, y/,/c or not lH'in<; fairly left to the jury, who found for the i)laintitr, tho Court refused to disturh the verdict. h<>ilc v. .Inlm/itnii, hcchiratioMs of the son of P.. in wh'se possrssit)!! tlu) plaintitr had left the ^^oods. as to tiie circumstances of tho transfer, were held to have heeii properly rejected hy tho •lufi\ii> of INliiK- €'o« «>iiiiiit lti'\ ri'sioii ielioii ol 4 o« eiiaiil. Action of ro\enant hy assignee of lessee aj^ainst lessor cu n Kase made of land for eleven years, fnun 1st Feh- niary ls;{u, on the usual I'rovincial huildin^' coveinmt, for not appointing,' an aj>praiser to value tiie huildin^s after the expiration of the term, and ni>tice to the defendant on tho :h-il May, Ik la, that the plaintitV had chosen an appraiser "11 his part, and request then made to th.- defendant to ap- p"int an appraiser on his part. Tha, that the deh'ndant at and from thr end of the t. nn. vi/. 1st Fehruary, IsU, Was willinj^ and ready to appoint an appraiser until the 1st Ma\. isil, when the defendant granted, har^'ained and sold \'M\ ASsKlNMKNT. all liiK rij,'lit. title and inttrcst in tin' sui and ('. aftir ^\lli(■ll till' said l! and (' lu'canic and art' the only |itrsoii,s capaMf in law to prrfonn the covtiiantH, whereof tlic jdaintitT had notii-e ; and that |{ and (' had rver sinci' lieen r( ady and willing: to lu'rforni the cownant, hut that the jdaintitT had not applied to thcni to appoint an appnii-^i r. Hthi, 15ad on deinnrnr. there hi-inj^ nothing' <»n the recor.j to shew a!iy privity oi estate at the time of the assi,Mves no. tice thereof to the lesser, applicatiou should he made to tlie assi^Miee to Jippoint an apiaaiser. Annl'if v, I*>t<-ri<, '1 rr M. The hssor hy a haruMiin and sale of the land after t!u txpiratioii of the t* rni. do. s not incapacitate himsidf from the ptrformance of thf ei>vemint. as he may still \ni\' the appraisi'd value : if \iv were incapaeitattd, the har;4aiu aiui sale after the term and heforf appraiseuhiU woiiKI la a hreaeh i-«-4l l*io|>«'i I) |>aiiiK hy* The defi ndant had in liis possession as a pond kee[n r tinihcr helon;,'in^' to il. who, while it was in the defendant '^ iJOKsession, nuide a <:.( neral assi^nmen t of his property deed to the plaintilT. //-///. that this wa.s an aHsi{,'nnit iit of the jnoiji'rt!/ in the timlu r, and not merel}' of a clost' '" action, and that the plaintitT, after tenderinj^' the amouut of the defendant's lien on the timher, mi^'ht maiutair trover aj^jaiiist him. ./-/./, v. i'.tujle^ 2 .1//. Uo. •1>--Foli<-> of lii*>iiriiii<-«' lii\ ali«l ii*»siKiiiii<*iil. I'laintilT, whose stock of goods in his store was insured l>y ASSCMI'SIT. 137 .Icftiidiuits by 11 ))olicv under seal. hoM thnn t<» A., tiikinj? iiott'rf in itiiviiii'nt. Sul>'^«'([iiy his coiHtnt. lit' futlorscd on tln' polii'y t'liit 111' tlurohy iiHsi^^ni'il it to A., ImvinL? hoM him tlif i^oo.U. Tills assi^Minifnt \v;is cntcrt'd on tl.'tViidnnts' hooks, hut not 1 iindiT seal, and A wa-< not infonnt^d of it. Tho th-tit noit» hfin.; unpaid, pliiintitT, hy c )UHt'ut o'' \,.,to)k biii'k the goods, and possession of thf store. They Wer.> afterwards oonsuined hy lin-. Ifrl'l, That the aH^'/nment ell the policy was invahd. and that plaintitT e.rild recover luiiltr thn pohey for th'' loss. Wfldon, J., linmrnhi'nt'' ; Ki«her, '1.. 'r v. '/Vc- I'liii-nir [mnrnure ('.-., 2 Ihin. -it til. ri\4'riiloi MoiiuiiK*' laii«l ol I'rHliitoi-. An exoi'utor eannot assij^n the legal estate in land inert;^a;^ed in fee to his testator, unless the land is deviae I to hi' Without sueh devise, his assii^iuuont will only oper ■ a transfer of the nurt^^aj^u debt. An assimi- uu'ut of a niort^,'age hy an ox-'cutor is not adiuissihl.- in tvideuee without proof of the prohato. S<:e hoe v. Ilnnaim, W All. 1-27. 7 or AiliiiiiiiHtnilioii lloii«l. In :ui a[»[)lieation to put an administration bond in suit, the Court will not deti-rmino wh-'ther thm^ Uas been iv lircach of tlif bond. If the applicant makes out a }>riiii i t'u'ic cas(3 of breach, and that he is a [»ropt!r person to suo !'or it. ho is entitled to an assi;^nmi'nt. In re Hunter, I }lin. '1\\\\. "•-An assij^nment will not ho refused, thouj^h the boid varies from the form given by the .Vet,— the variance being A?*«l .^ll»«*IT. I. (iENKIlALLV, AKT1K8. 111. MosKY CorNxa. '( .\cc()ii?it Stated. '' Money llu.l and Received. 188 ASSUMPSIT. c Money Lent. d Quantum Moruit. c Indebitatus Assumpsit. Goods Bargained and Sold. 7 Money Paid. IV. MlSCKLI.ANEOrS. I. (Iknkiui.i.y, Artioii lly iiiid iiKiiiiiHi \«liuiii Tfaiiiiaiiiablf See Action at Law IX. Ki^lit to Anion. ,S'f ' Action at Law IV. I\»r uliaf Tlaiiilaiiiablc See Action at Law X. K«>*««'iiidiiiK 4 onirHCt.. .SV<' Action at Law V. K<'in«> ^»ii*>|»<'ii*»i(i>ii of. See Action at Law VI. A<'tioii t»<>ror«' IHpiratioii of <'r<*dll. Set' Action at Law VI L l'ur<>iKii JiidK»iriit AsHUiii|»««il flaiiitafuablt* upon. See Action at Law X. Tl3i)ri»-*rat<>'H 4 oiirt Jii«lK)n4*nt. See Action at Law X. rorm<>r R«*«ov«'r>". Ste Action at Law VIII. I Kr4>a4-I« of AKr«'<>in(>nt. By agreement betwe«'n tlio plaintiff and defendant, the latter undertook to manufacture and deliver to the phiiu- tiff by a certain time 21,}, Tiiat tho defendant was liable for breach of his aj^rcement, and that the plaintilT's remedy was not suspended until the dealH delivered were sold, hut that he mij^dit recover the amount of the private account and the surplus a, That any failure on the plaintiffs part in selling the deals did not affect the defendant's liability for Imach of his agreement. //>»'/. 'i~^loiiKiiK:<>ill4*iii4>iil of A<*(>oiiiit*i— Cove- iiiiiii I'xiHfiiiK. defendant being indebted to phiintitT for suppli«'S ad- vanced to build a ship, and recjuiring furthtT advances, mortgaged the ship to the iilainlitT in September, \H'u , for I'lO.OOO. and covenanted to pay tho amount due with in- terest in January, IHoH. In November, IHoT, the parties .M'ttled their accounts, when a balanct> of ,l'l),7 ID was found to be due the plaintiff on the advance:: for which the mort- ;.'agc was given. lIAd, that assumpsit could not b" main- tained for this balance, but that action should have beeu • 111 the covenant, .hirdiiw v. }[»|M'rial av4'riiM>iit*. I'ailiir*' in proof of K4>rov<>ry IIIMi4'|- < OIUIIIOII < Olllllo. The plaintiff and defendant entered into a contract, whereby the defendant agreed to supply the plaintitT with I'lovisions, etc., at stat*'d prices, for teams to be employed I'y the plaintiff in hauling logs during the winter ; the logs tht'll v. 'I'oild. '.\ h'l, 171. I'.\ idnirr iiiiili-r < oiiiiii4»ii 4 oiiiif^. S.r Infra III. II. Pautiks. I'iii'li4>*>. ^'< ' Action at Law. < oi-|HM-alioii Heal \u«-iil<»' %iillioi'il> i:%lo|>|>el. Sir Corporation I. 'I'niaiifH ill 4 oiiiiiioii. S>i' Actnui at Law. I'iirlirs ltcori<.Hioii l>> . iSVc Acti( il at Law. l*(«i-ti<-«> ii«>f ill otalii «|ii<». iSVi Infra '2\K III. MoNKV ("oCNTS. ,, AiCOCNTS STATF.n. I ^Il(ll4'iill«) of %4 kllO\%l«>«lKIII4'llt. l'jH)n an aj^reennnt nnide by i>. to purchase froiu C. !i (piantity of saw lo«,'s, which C iuid i>reviou-.ly houj^ht of .\, h agreed to pjiy A I'T.' from the proceeds of the lumUr when it got to ui;irket : soim time afterwi r Is. u))on an ASSrMPSlT. Ill aMplicntimi for njiymont, l>8ai(l " lie had cluirttrt'd a vessel, and that A \vonh\ have his pay, one-half in a fortiuLjht. an 1 the other lialf in two or three months." If' hi, Tliat A couM not recover the ill') on thf eonnt for an aceonni stated, altliou':;h more than thn^e months had elapsed hc- foic brin.u'inj^ this action. /.'<• v. Ifoirr, 1 K.rr, rtiV.). >2 Tile defendant liaving purchased from 1* a mill, tegetlii r with a ([uantity of lo;^s. which had heen sold by the plaintilT to V, accepted an order drawn hy 1* on him in t'le jilaintiif's favor for t'T;"), the pric" of the loijjs, payahh' wlieii the deals, into which the lo^s wvv to he saweil, were ^ttt to market and the proceeds rt-alized ; and some timt; after wlun the deals were at the market, the oriler bring presented to him for payment, the defendant said he liad cluirtered a vessel to take away the deals, and that he w.'uKl pay tlie plaiutilT one-half the amount of the onh'r in two or thre(> days and th'' remainder in two or three months. //./«,3 I . \u account containing debits and ereditri was presented by the plaintitT to the defemlant, who admitted It to be correct, but refused to sign it, alleging that there iiiiKlit he other credits to which lie was entitled, and for whkdi lie re.piirod time to consider. //./«/. Tlnit this did "ot prove an account state-d. Uariii v. (ioudiAloir, 1 112 ASSUMPSIT. ,1 Wlun A (U'livorod goods to !> upon tlio nndrr- staiulint; that J> sliouKl deliver otljor goods in oxchango, but sul)SO(iuently A nndertd an account to B of the samo wljich r> acknowledged to be correct and i)r(nni8ed to pay, A may recover therefor under an account stated, notwitli- standing his hill of particulars gives the iti'Uis as thy ground of his denuuul. (innit v. Aiken »V Sltnir, Her. i.')!* tt— l>«>iiiiiii«l (*oiiflii«>«l l») |>iirti«'iiliirH. The plaintitrhy his particulars confined his demand to damages for the breach of a special agreement which ho failed to ]irove. //» A/, That he could not give evidenci^ on the account stated of the acknowledgment of a sum duo independent of the special agreement, hut connecttd with the transaction to which it related, ./(tckiiidii v. Druuu, Mich. T. \m\. 7— Bill of I^X4'liiiiiK<' iidiiiilf«'fi iiiiili'i- iktoiiiiI sliiM'il l*l«>ii4liiiK> If a I>ill of Exchange is drawn for balance of account acknowh dged to be due to the plr.intifT from the drawer,- - who has no funds in the drawers' liands. — the plaintitl may recover on the count upon the account stated, if in consequence of not alleging the excuse for non-presentuunt, he is unable to recover uj^on the special count. Kmersou V. (iariUwr, 1 .1//. \')\. 8 The payee of a dishonored Hill of Exchange may recover the amount from the drawc-r in an action on tln' common counts, if no notice of dishonor has been given. JiiniiH V. McLean, 3 Alln 1G4. 9 'Pii>(M> uKtiiiiHi niak«'r l'% iciciK-r. In an action by the payee against tho maker of :i promissory note, although it is made payable at a particu- lar place, yet it is admissible evidence under the comuiou counts. Merritt v. \\\hhIh, Her. 'li\l. A |»roniif>k*>or> ii«>l4> mil) l»«' kIvi'ii in 4>vid«'ii«'«> iiiitler A«<-uuiii ^tal4'«l. See ateadman v. UoUteml, 3 Kerr 835. I*lll'«'lltl^4' III<>II4>> ill l>4'4'4l A«illli<**>i4lll 4»l. iiee Kbtjppel I. 17. ASSUMPSIT. 143 Slnliiitf irroiiiit l»y It4'rr«'«>w — AK<'iit*i ol FartioH— Wli«>n ! Sec rriiKipal and Agent 16. 10 A writing addrosaod to defendant, roquosting; him to pay plaintiff t''2;", half cash and half goods, is not a Bill of Exchange. After payment of part, halanco cannot be recovered as on an account stated. Sre Bills and Notes I. 14. II— A4*('«>|»taiM'oii4*«* ^ii*i|»4>ii«ti4»ii of 4lnini. The defendant heing indehted to the plaintiff, gave him three documents, intended to he acceptances of the defend- ant for $ too each, payahle, with current rate of exchange on New York, in five, seven, and ten months from date respectively. //»•/llt 4»f i4M-4»llllt«i l'vl4l4'll4-4* lt4M'4» V4'ry. On a settlement of accounts between the phiintilT and defendant who had been partners, the plaintiff wrote a prouiissory note in his own favor, which he read to tho defendant and recpiested liini to sign ; the defendant refused ; but admitted he owed the plaintiff the amount. Hdil, 1st. That evidence of the amount admitted by tlie defendant, was receivable without producing tho note. 2nd. That the amount acknowledged could be recovered as an amount stated, though there was no promise to pay. lliu V. J„nrs, 2 .1//. OIG. lib— Wriii4*n 4»r4l4>r Ar4><>ptanr4> of In'>»ufll4'i4>nc|r of Arkiiou l4>4l|nn4'iil. B being a creditor of A drew upon hira a certain order requesting him to pay K " the amount of my account fur- nished," and delivered it to K. On presentment of tho order to A, he wrote on it, " Correct, for say $75, " signing the -il Ill ASSIMTSIT. initials of liis luunc. Jlild, Tliat this was not ividcncc of an ai'ccunit stated. The ackninvltd^^nicnt to support ac- count statrd nnist be made witli rcfcrcnoo to an rxistini; (Irht iluf froui tho tU'ft'ndant to the plaintilT, and it must appear that cirtiiin olainis oxistcd ht'twi-cn the i)artie8 ciaici'ming which tli<' amount \vas .stattd and thi- hahinco agrei'il upon. K2. II r~ S4'i-4iir <'oiiirii4-( iiiir «>«>jil llxlra M 4»i'k. In assun:psit tlio defendant may shtw under a notice of 8et-otT for work and hiiiour, and on acccumt stated that lie di(] work for tlie jdaintiff under a contract umhr seal . that he did extra W(nk, and tliat after tlie comphtion of tlie work lie petth'd with the jihiintitT. that nnitual accounts were stated hetween tluin. and that a liahmce was found to bo due to defendant. Jlfhiira v. Hillin'is. a All. 'i:V2. //—Money ]I.u> ani» Hi:rEivKi>. hy and against whom action maintainable. ^iiik<'li«»l«l— liorHc rn(-4>. .s« ( Action at Law. Ilart>«>iii' lla*>i«'r iiohliii^ 4i\4>i- I'«m>*> of 4ftfli«'4'. Sec Appointment of Otlicer I. I'i Alt<»l'll<>> Tl4»ll<-> 4-ull('<-|«'«l il4>iiiaii«l. The defendant, an attornev, pivethe phiintitTs a rccei] t acknowledgin}.; to have received fn^m them several pronii>- eory notes for collection, one of the plaintilTs at the saiuo time by letter requesting the defendant to collect the noto. i/<7(/, I, That an action for nionev had and received was properly brought in the name of both phiintitTs, though llu- not»*8 Were in favour of one of tiiem only. (iilhtit v. J'almer, 1 All. 455. 13 A notire to an attorney demanding payment of n:oney received by him in his professiomil it<>rt lUi action for luoiiry lia«l ami rfccivt'd, tliouj^h the |)cr:r(>n who si^Micd the notice was iiftcrwards the attorney in the suit. Ilnl/niKon \. Pulnui, 1 All. '1'2'.\. 11~I<<-k:h'} l'a)iii<*iit io l^\4Miiioi- l»> |iiiii) lioldiiiir. II 1. (|Ueathe(l to the jtlaintitT duriiii^' her hfe. the ino.'its ut his stock and interest in tlie Saint Sti'phen's Ihmk, of which tlie hank liad Jiotice. Aftrr tlie death of II the hank (lt( hired a diviih iid on the stock, which was chiinied hy and jiaiil to Us executor. // for 4»ili4>r *»4'r« i«-<'*». Tlif iilaiiitiiThirrd the defendant hy the month to super- intt 11(1 (•( rtain work, and to devoto the wlnle of his time to it : (liuiii^ this «n;^'a;,'en)ent. and withont the plaintilT'H kiMwled;.^', the defendant workt'd for another i)er>on and received wa;,'es. IIi>initiriitc That the plaintilT couhl not maintain an action for money had and received a^'ainst the defendant for such wa^-s.and that tho only remedy aj^ainst him was an action fonhiina^os forhreach of his cojitract. Hchl, per llitchie, .1.1. That hy the aj^ree- nunt. the time and lahour of the defendant heoanie the projM rty of the plaintitT, and that the suhseipietit hirin*,' hy tlu' ilel'tiidant was a wron^ which plaintifTs mi|:;ht waive. niid r. cover the proceeds of the lahour in an action for money had and receive. I. '1. That the plaintitT mi^'ht tdect ti> consider the ihfendant as his ai^ent in such hirini,', adopt his contract, ani>4l*» *»al4' 4»l I arK4>. 1 he [(Jaintilf autl (mt- j' .shipped (>n hoaril (hfendant's Vessel at S:iint Stephen, a cari^'o of lumhcr ahout half of which was the 8ei>arate properly of the plaintitT, kept apart fMin tl le r. st in the vesstl. The luniher was to he carried m ! i 1 14« ASSI'MI'SIT. to tho West Tndios, and thorc sold bv tlio (Icft'ndant on tlu' separate account of the plaiiitifT and I', and Boparate bills of lading were given. It was proved tliat tho cargo had l)een sold hy tlie deft-ndant, and he admitted tliat he had received therefor $'i.(M)(). No account of sales or expenses was in evidence. The jury having found a verdict for the plaintitT for t,''2()0. on the count for uioiiuy had iind received, a rule nisi for a new trial was refused : the Court considering that then* was sutVicient evi(h'nco to suj^port tlie Verdict, although tlie «xact amount due thr plaintitT did not appear. lU'umni v. Luiniin,'! K'rr IIR. 17- Voliiniar) I*u)iii4aid it, and hrought this action to recover back the money paid on tlie lirst note ; and shewed circumstances in t vi- dence, upon which the jury found that the tirst note was ])aid without consicb-ration, or had been fraur l^\('(><^*>i«4' d4>inaiid. If timber is seized for having been cut on Crown land without license, and the Government instead of proceeding to condemnation, authorize the seizing t)llicer to release it upon paymeni the clainumt i for money Iuk anioiuit denial on granting 1 Km- 280. If>— riir4-lia»4 *iO Appropri S heing iiu the defeiidanfi debt, which till liecn a.scertaim this was an ap of it Iiy the de could niaintai Aiiili'ixiin v. 1/ ASSUMPSIT. ir upon piivnunt of ii oirtain Hum per ton, which is paid hy the olaiinant uiidtr protcHt ; lit- cannot maintain an action for money luul and received a,'ainst tho oflicer, hecanso tho amount demanded hy him exceeds tlio rate allowed hy law on granting licenses to cut timher. Tihlxtx v. Alhtti, 3 Km- 280. If>- l*iii'< liaHci- ll«'|»o*>lf. A })ur(}ias(r of land has a right to a title froo from in- cumbrances, and if the vendor is unahle to give such a title the j)urchaser nniy recover hack his deposit. Scott v. G(inirtt,2 All. (VI I. tlO~A|i|»i'o|»ri>ifioii or 'HoiM')'. S beitif^' iiidehted to the phiiiititT, and having money In the deftiidant's hands, directed him to pay the plaintiff's debt, which the defendant aj^'reed to do, the amount having:: been ascertaiui'd and known hy tho defendant. //-'A/, That this was an appropriation of tlu> money hy S and a receipt of it by tlu' difi'iidant to the plaintilfs nse, for which he could maintain an action for money had and received. AndnHon v. Allison, 3 .1//. ITU. 'il A having; consigned goods to the defendants to Sill, drew a bill for the amount in favour of U ; tho defend- lUits refused to accept the bill till the goods were sold, and it was protested for non-acceptance. Soon after drawing the bill, A assigned his property to tho plaintitT, who ilainud tlu' procet-ds of the goods from the defendants, but ufterwards wrote thtiu that he found the amoinit had been aiiiiroi)ruited by A to pay a debt to IJ, and that ho (plain- tillj had nothing to do with it. lidd, 1. That the plain, till hail rinounciil his claim, and could not recover tho procttds. li. That his Buhsetiuently claiming tho goods in oon8e(iuence of tho defendants' refusal to accept tho draft, aid not destroy the ertoct of his previous admission. ('".'// nvt V. Kinu,:ar, 1 AIL 251. *'** < oiiiriHi r4>««4iitfl. The defendant agreed to deliver lumber to the [)laint;tT lis ASSl'MrSlT. at II I'citain time, mid tin- plaintilT a^'"* id to inaKi' a imy- iiu nt ill advam-i', ami to my tlu' lialaiico on dclivirv of tlif luuil'ir; luitlu'r i»arty wa^ n'a«ly t() iurft)nn the t-ontnu't on tlu' (lay siifcilictl for tlir (Ulivrry of tin- IiihiIm r. llrM, Tliat till' oontrai't was rfsciiidtd, and tliat tlir ]ilaintitT uld rti'ovir tlu' adN allots under the co.iiit for iiionry linJ ind rii'tivt'd. Mt<' '2.1 4 oiifni«-l I'ailiiK' in |»riioi-iiiaiir«> Wl HYv llioiu \ lias 1 HCU net i\id li\' u iiuiiiufactiiriiii' <'oi poration under a parol a^'reeineiit to make i)ayiiient for tile same ill artiides of tliejr nianufafti.rt.', wliitdi they have failed to jierforni : an action of assumpsit lies to recover ha< k the moilev. I 'iiiiiinnd v. Thr Snint dcoi'/r l.iiiir ( nin- P'li'U. •2 K I rr ')',)~ 'il l*iii-rliti*>r iiioiic} ><» IiiiihI. Wluro hind has heeU sold and the deed » XeCUted. iind there is no fraud, the ['Urchaser c innot recover hack the Mirchase money in an action lor moin y had and received, althouj^h lie may have heeii e\icteil hy title jiaranioiiiit. Tlif rule of ('III -it I iHjitoi- apiiliis, and he >liouhi ha\e pru- tt'cted himself hv covt'iuiuts. liohinH'iii » V. Jiinis, Jill. I. *i') 'l'<>iiaiil^ III 4-oiiiiii<»ii lor oliai'i' of l*ro|»4*i'r) sold \t illi roii*><'iil. An action for numev hai- <>l loi-i 4-<»ll^4-||f. ^al«* (»l 'i%li<>l4' l*r«>|»<'ri) uiilioiil !f one tenant in ct)mmon of property, btdls the- whole, witliout authority from his c*. tenant, the latt< r may waive the tort and rt'cover his share of the price in an action for money hacl and received. 7 >--///. v. 'raj/hir, liir. liOl. *i7 l<4'iii«> aiMl I*r4>fils. One tenant in common cannot maintain an action for money jiad aiK more than his j>ri»perty, uiile,- ii'jret'd upon, t MS haihtr of th Ffiist et id v. /■ *i*i liif:iiit tv ItlllillHC l>elelldant I who were infa ai'kll()\vlrd<,'ed II I'hiintitl's, as th which In- had the correctness ■^inii from the i had and ri ci i a^'rced to, tile diet for that uii 'i{> I*aiti4*«. iMi The defend; I'hiiiitiirs. and "1 it. pnu'iired JMrtv to he m; ihcr ai,'l-ee,l th I remi.scs. the d, • ither hy fore( Act, so tliat one t" tile pro{)erty '■'■t^'i^tmvl, the i"!indcd the pu t le recovery of '"t'lit of the iiK '^'"•fof, the p;il ' K'reforo was n •10 l{4><'4'i|»| A receipt j^i ASSIMI'SIT 1 r,» nii'tii'V li!i(l uiiil r.c ivfd a^'iiinst liis co-tt'iiiiMt for ricriviiiL,' more tliiin lii^ sluiic of the rcntn iiiul protits of tlic joint proptTty, tiiilfss tluTt is iii» iicfount scttliil (mi«|»lilril iirroilill IliiliiiMr iiol ii;{i-«'<-r (hit- from thmi to thi' plaintiffs, as tht ir share of tlif rents of the joint property ivlii( had intilY rcoeivcd. llie plainiilfs j^narilian di-^pn ited the correctnoss of tlie jiieonnt. and chiiined a nuudi larpt-r sum from the defendant, //n rt al jiroptrty to tli plaintill's. and received their a<-eeptunee for the payment It. procured an assi^Miment of a mort-'ii'''' on tile pro- perty to he mach- an< «i|»i l*i»iiii«.4- I o a<-4*oiiiii. A receipt given hy the defendant to tiu- piaintitr f I r 150 ASSUMPSIT. certiiin ortlorn, istiitin;^ tlu> namoa of tlu' prrKons luul tli' jinuumt duo frum tuclii *' to bo accoimtoil in scttl-'intnt. " in not in itself sulVu'iont to Hiipport iin notion for nitntv liiiil and rociivod. Ltf v. I'lifctlnn, Jlil. T. IHMI. Wiit;ro tiiubtr wan delivered to tho defendant on an aj:recnient that lie hIiouM sell it and pay a certain part of tlio proceeds to the plaintiffs, an activ)n for money had uU'i receivt*d will not li«' uiilesn the timber has been sold. Scrih- 11' r V. li'ttM, llil. l\ 1HJJ;3. :pi~ iiiioiiiif |iiii«l till I'xmiiioii l.iiiid iioi liable lo ••4>i/.iir<'. l>efendant recovered judgnii nt as^ainHt tlu^ executors of S for a debt duo from their testator, on which execution was issued to levy ih' bouis t('Ht(ititrix, and the real estate of S sold by tho SherilT, anii purchased by tho plaintitT, who went into possession: the heirn of S afterwards ejected the l>laintilT — the real estate not beinj; lial'le to seizure undc the execution. //i<»|»iii<'<'in4'iit <>t i>nn>in v. Anth'rsnn, 5 All 'ilT). '.Hi >o acliial i-r4-«'i|»l ofiiioiii'). riaiutilT i'mployed defendant, an attorney, to collect a debt du(! to phiinlitT from A : the defendant did not actu- iilly receive the money, hut arranj^ed the deht, hy allowing the amount in tho transfer of a mort;^a^e from A to Ji, a creditor of the plaintitT. 11, hi, That as the defendant had not received money or money'H worth, an action for money Lai nn.l rfx^ived would not lie. Xetl v. 7.f roiiviTftioii M aivrr of Ion. I'efendu' ij^'reed to deliver deals to II on h(»ard a ship sen' for the purpose- half tho cargo to ho paid for in cash : tl. lieals were t-hipped, and H's agent paid tho defendant •t'"ii> un account. Ill "ame hankrui)t in England on tho loth June, and on tlu 17th June, information of tho hank- niptcy was roceiv< d in this country hy H's agent, who refused to make any further p.ayment to tho defendant, hut ^avo liim the hill of uUng of the cargo, which ho boM for liis own benelit. //-•///, That tho portion of tho cargo 1.32 ASSUMPSIT. sliippcil lu-fnrc tin' lOtli Tiiiic vt-stt'd in tlic assif^ncf of !! and tbiit the suK' llioivot' was a (•tjiivrrsioii for wliich tli»- a-isifjjiici- inij^lit maintain troviT, an(i that ho niit^'ht also uaivc the t>>rt and hrinj^ an ai'tion for inonry hii I a!ul rt'(,'( iv( (1. (\irriih v, Athin^nii, 5 .1//. /jIT). :tM l'4>4*«« of \%iiii4>H«. 4 i-iiiiiiiiil ii-ial. Thf f( amount. Mulli'iiin v. liaifix/onl, 2 I ['in. 1. :tf> — \4> i'<'4-4'i|»t ufiiioiir} oil «-lii>i-k. Defendant, at tin- reijueHt of the cashier, and for tlie benefit of a i^ank, hid in certain nhareH of the Hank-^tock. which Were advertised for sale. Tiie defeiiilant had no funds in the jiank, hut the cashier told him he could draw a chock for tlu' amount of the purchase money, whicii he did, and the amount was paid hy tlie cashier to the sell r of the shares, which were the!i transferred to the defendant. Tlie purchase of its sluires liy the iJank was contrary to the charter. l)efendant ofTereoi-aii«»ii ^oiii-> i-«'<-<'l\ ril l») t||i)or 4>lts«-i. ,S"«r Corporatiitn It). lO '4% ork :iti«l lalioiii- %Ki-miii'iil fo crcflit on n iil. riaintilf held land as tenant of «lefenilant under a leas- . and by an agreement outside of t!u,' Iea.se, he wast) do soim ditching on the hind, whicli was to be allowed him as apiV* nn:>nt on accc iiig the sujnii tress warrant [ireviously, w amount of th ledge of the { .mt any accoi means of cretl to the distres: to recover ha( I'n-t, 1 rioi. 2i to Wioiii;. |»iii«i o\ ( l>efiiidant loneiug to j)la ami plaintiiy, claimed. II, t of aiiother pi 1 action, would • action for moil action it was i laoiiey, that i: l-Jcived hy th tile plaimitT . infer that it rested his ca received the I'rincipal. ami I'laitititT; whil ^vrongful taivi; to the jury, y, tion, he was i Lit n eh v. K,r,/ *Vai\iii|^» loi-i. The right !ii- l»ro|»«'rl) *.<>I/.«mI iKriil — ^Ion««y I»simI o\i'|- to |>riiii-i|»iil- Il4'l4>ii«>4' 4»ii trial. Defendant wrongfully seized a quantity of shingles be- longing to plaintiff, claiming to hoM them for stum])age, and plaintitT, to olitain tht-ir release, paid the amount clainuti. Uil, lu drew a note for tln' iiinount in tlu/ pliiiutitT'.s favor and sent it to tlu' dcftiulant, who rt'ccivinl tlu' moiify from tin* jdain- titT ami gave lu-r tho note — eudorsing his own name tlurt- on. Tlio ))lainti)T swore that she lent the moni y on tlif bccurity of tho ilcfcmhini, T:)i'hfving at thi' time Hhe got thr note, that it was tlie joint note of tlie ilefrndant and ]'. //'/(/, That tli»> defrndant was liahie in an action for luouty lent. /'-(/«/.'./,>! V. lH-'il'iuw, 1 .1//. ll»7. d — OiANTrM Mkiuit. 14— ('<»iiira<-l- ■>«'% iaiioii<«— ii-qiiii'scrm-r. The plaintiff contracted to huiid a hridge for the d(.fend- ants according to a specilication, for a certain j)rico, but variid from the contract in many particular.s, of which tin- defendants were aware, Init made jiaynunts to the phiintitf while the \Nork was going on and very shortly hefore it.i completion : the hridge was carried away hy the ice, tlu- hiring after it was huilt. //«/!r%aiil Miihi* llii\<'r. The plaintill was employed as a dn\erby the proprietor of u stage coach. In an action against the mueter fer wageB, iu which the plaintilf was proved to have recciveii ASSUMl'SIT. IKK )iy luissii^'o iiumcy from pcu-sonH travelling by tho stai^'e, and wliicli tho defendant claimed to Hot-otT aj^ainnt the tth, :\ Kerr 1 Kl. Ifdil iiU(\ That money gi-- ito tho servant l)y the owutir of a horse, which was led behind the stage on one of its iri[)s, was a mere gratuity to the servant for his trouble in looking aftiT tho horse, and that the master had no right t ) it. ll'i'l. t.% llepairs of •>ilii|» — A(;<*nt l.iabilily. The difendant, having advanced money to D to build a ship, became the registered owner of tiiree-fourths of tho ship as a security for his advances, with an agreement tliat she should be pold in England and hi-< dtdU paid out of the proceeds of the sale. The ship being at Saint Jolin, and ro- (juiriu!^ repairs to enable her to go to England. 1) and the iiiasttr of the ship employed the plaintitT to do the work, (linotiiig him to charge it to tho owners. Tlie ship was sent to England and sold, and the defendant got the proceeds. //'/'/, That he was liable for the repairs. ll'HruiiUH v. II'. W, i .1//. ]]&>. Ilvlia Uoik. Sec Contract 10. Ki llii-iiiK llorsr. A person hiring a horse to perform a journey is not liable for the value of tho horse if he dies on the road without the fault of the rider. (Jiiufr, Whether, in such a case, the owner of tho horso is entitled to recover on tho Unantum meruit for tho time tlie defondant had the horso ? Sceinckir v. Cnmphell, C. Ms. 44. 17-Owii4>rslii|> ol Property l.iabiiity. Ihe owucrship of property alouo will uot render tho 15G ASSlMrSlT. owner liiiMe to pay for work prrfonntii upon it without his roquost, thougli ho rocoivos it knowiiifj; thut the work has hton porfonned. Ilurlhu v. Fixlicr, 1 ,1//, irA). 17 *> iii«*nsl>4'r«>. A*»«>oriiifi«»ii l.iahilit> of ^^h^rl' ci-rtaiii nunil)t'rs of an unincorporatcil associa- tion acttd unthr anil recoivcil the hint lit of ji constitution anil l»v-la\vs, framoil hv a person otniilovt'il bt-forr thi v ho- cnnio nicnihcrs, they Wito hdil liahh- in an action hrou;;ht for services performed in pnparinj; such constitution and hy-laws. K.r p.irtr Thcal ef ,il, 2 Pup. 810. 17 ''Adoption ol ^« <'oiiiiiiifl«M> lf<>|»oi-|. Plaintiff, a chrk in the olhce of tiie auditor of the city of St. John, was employed liy him with the Unowlt-dge of tile Mayor, to make up a list of ih faulters in payment of taxis for scvtral years. He })rt pared the list and sent it to the corporation, to^ither with an account for his ser- vices, which account was referred to a committee, who rr- portcd.|recomm<'ndingthat L* should he olTcred the plain- tifT in full. The Couunon Council adopted the rei)ort of thf committee, and filled in the hlank with $;5()0, declaring' that it was to he " without pr» judice." and not as an admisnion of anv indebtedness to the idaintifT. //«///, That as by liev. Stat. cap. 110, a corporation nuiy contract without its seal, thf defendant had adopted the contract made by the auditor, and that it was properly left to the jury to determine the value of the plaintilT's work. 'Unan v. M»|»<'«-ial 4 oiiliiK-t >oii-fiilfiliii4'ii| l>t-o|M'i-l> ii4»i «-apal»l4* of iK'iiiK i'<'liii'ii<'«l l°i\liii-«'s %%ai\rrl>} iisiiiK. In cttHcs of contract to furnish machinery, A:c., for cer- tain purposes, if jlaintilT, dihsatislied with same as not being according to contract, and the machinery, etc. phueJ in the plaintiffs l»uilding, the necessary using of same he- fore defects are discovered, cannot bo considered of itself, an acceptance and waiver of objection to defects ; it slioukl - ';!' ASSUMTSIT. 157 M 1)0 left to tlio jury to conwidoriill tho ciremnstances, huoU an lonj^tli of tiiiu! (Ifft'iidtint usimI tlio Hamo, tho complaints ho mado about it, etc., to infor whether a now oontrat't on plain- titT's jnirt to koop tho niaoliirrr\ was mado, and to pay what it was worth, though loss than contract price, and so to cntitlo I'arty to rocover on tlu' iinantum meruit. Thoro is a distinction hotwoon cases of taking possession of an onliiuiry chattel, and such other prop«>rty as machinery placed ill a building. Wittn-nna ft dl v- Morroir, 2 P. .(••/,'. 11. f— Indkhit.vtus Assumpsit. 4N — >>|»<>riiil < oiili'iKt <'OIIIII*«. l<4'rov«>i'> iiiidri' 4 oiiiiiiou Inilrhitv<'i-«*r. PlaintitT f^old defindant luniher, part of which was aftor- warils livied on undt-r oxtcution a<;ainst the plaintitT, Imt was givt n .ip to the defendant hy an arrangement with tlio judj^'nunt creditor, to which the plaintitT was no party, //'/s (ii««abliii|; llioiiisrlvi'«« from |i4'iToi-iiiaii('(* 4»l 4 oiiliart ■{(■•>4-i<>iartin goods ; the plaintiff furnished the luml)er for tho doors and Hashes, which the defendant made and sold afti-r the exjii- ration of tho time for completing the house. The plaintiff never put up the frame, llchl, That as^hoth jjarties had disabled themselves from performing it, tho contract wad rescinded, and the plaintiff could recover on the (luantum vwniit for goods delivered to the defemlant under the con- tract. Ihll iilio, That as the facts were not disputed, the rescission of the contract was properly decided hy the judge. MrAuUy v. (iediles, I All. T/iG. (/ — Money Paid. AS-Cunlrari 'I'raitHli'r I ii(liii«>li«>d \%ork. 1) having a contract with the defendant to do work ou •)l Ipplirsi ASSl'MPSIT. ir>\) a railway, transfcrri'il liis {'ontriict to tlif plaintiff at tlit; (1. f.ndant'H ro(iuost, on roccivin}^ a hfrnim of ono ponny p.-r yunl on tilt' work rcniainint: to bo done. Plaintiff f^'avo D jiis noto for tiic amount, on tlir undertaking^ of tlio defond- iuit that if the plaintiff was prev«nitod from completing the w.irk, the defendant would pay tlie ponny por yard for tlio amount unfinislu d. Tlio plaintitT performed part of the work, and left the rest JinfiniHlH'd, at the dffiiidant's ivipHst that he should work elHewhoro. The plaintitT liav- iii;:;pai(l the amount of the note to D — Ilrlil, That he could rtcover it from the defendant, as money paid to his use. Utakins v. Mclinm, 5 .1//. 209. -M Ippliratioii of iiion«>>'. The defendant hrin^' indebted to P in the sum of $1124, riipiested the plaintiff to pay the amount for him. The jilaiutiff dill not pay tlu- UKUiey to P, but, having had deal- iiu's with him, and havinf:j a demand a^^'ainnt him for $024, placed the $U2 1 to his (P'h) credit, int<>nding thor* by to ])ay his demand of $t>24. Part of the balance was paid to I' and part was apjdird by plaintiff in payment of some liabilities of P. The defi'udant had no knowlodgtJ of P'b indebtedness to the plaintiff, or of the mode in which the $1124 was ai>plied. Ilcld, That there waH not a novation of the ori[,nnal liability of the defendant, and no extinguish- ment of the debt due from the defendant to P ; therefore the plaintiff could not recover against the defendant for money paid to his use. Per Pitchie, C. J. : That if P had agreed to extinguish his debt against the defendant, and the de- fendant had notice of the arrangement betweiii the plaintitT and P, and had assented thereto, the action for money p;iid could have been maintained. Per Allen J. : That if the plaintiff, with the assent of I', had retained the $024, and j)aid P the balance of the §1124, he could have main- tauied the action — such retainer being eipiivalent to a pay- ment—and, in that case, no assent of the defendant was necessary. Harris v. UoberUon, 6 All. 400. 100 Assr^r^sIT. IV. MlSCKLL.VNKiH S. Sec Pjirtnt'iship 1. Sec Coiuiuissioner of Sowers. .'^•1 4°oll«M-l4M' 4»f Ta\4>*> lloiiil Kiv«*ii. Assumpsit Dii tlio account stated lii'sa;;ainst a collector of taxes for a balance ailmitted by him to l)o due to his ])rin('ii)al. t!u)ui;h he has ^ivcn a hond to the |)riiici|tal to account for moneys collected. 77/. .V.///or, iCc, nf St. Jolm V. li'ililu'in, ;} K' rr 177. .•Hi — IM llaiiiaK«'» Pai- In an action hrou(.;ht iji this Province for the value of goods sold and delivered in England, the plaintilTis entitled to recovi-r such a sum, currency, as would he (Miuiviilent to the deuumd in sterling, according t<< the rate of excluuigc hi'twtcn this Province and Kngland at the time of trial. Such an allowance may he recovered midcr the conunon counts, for goods sold and d» livered without any siiecifie averment that the dd in sterling money, or any allegation of the relative value of Hterling and cur- rency, this is matti r of ♦videnee. The jiarticulars mt covering such a specific charge wt-re held suHleifnt, being dated at Liverpool and made up in sterling money. Camp' hell v. Wilson, Ji'V. 2(\',. 57 — NpfM-ial 4'oiiiit«> I'arliiiilari* - lln C oiiiil«». AVhere a Declaration contains Special Counts, with a count for money had and received, and the particulars also apply to the hitter count, the plaintiff may give evidenco under the count for money had and received, though the counsel did not claim to recover on that count in opening the case. Carrick v. Atkinson 5 All. 51.5. Kiulil lo liiai ATTACIIAfKNT. i<;i Work siikI l.alioiii' i4-|ioii for >1 a|;r«> ii*» ^<-i-i-4'fiii-y ol 4 oiii|»aii) ICiTOKiiltioii of 4tfti4-ci- l*ii>iii«'ii| l»y roiiipiiii) of Kood*. oi-4l«>i-<'4l ti; |»laiiiti>l. Sec Evidence I. J t. A<«siiiii|»-it iiiaiiilaiiial»l4> f4»i- 'l'4>|» \%liaifaK«' Iiii4l4r \vt .% Vi4-. 4ai|». :if», «.4'4-. <( \4'4-4>ssai-y ill4'Kaii4>ii aii4l l*n»of. Sec Wluirfiij^u. I>«>iii»l 4>f l'Hi-tii4>i-Hlii|> Iii4lii4-iiiu: l)4>livr that I'diaiii |M'rs4>ii*i \%4>!-«> ill |iai'tii4-i-*>lii|». .SV' Evicloncu 1. ;{;{. Smith v. Geroir. A<»mnii|»sit on 4:i«>4>. Sec Action on tlio case. %^IM»l« 4I4' hoiiis as|M»iiali««. iSVf TrospaBS [. 11. 11, 15, ir>, 27. ATTA4 linilM'. l-lKaiiist wImiiii < 4>i-|Mii :iii4>ii<» -4 o-*t«i >ol Kraii(4<«i. An Httachniont i-iinnot he gninted jiguinst a Corpora- tion for non-piiynuiit of costs. Po. v, Craivfovd 3 .1//. 'im. '2 ^tlU'lifi .^I04l4' Oi l4»IIIM'l pru4-4'«>«liiiK* Until the general rule of the present t- rni (Hilary, \ ^lc.) the mode of proceeding nguinst a sheiitT whei out of ollice, for not hringing in the hody of a il.fendnut, was ly diitnn. nee the rule of King's 13ench, 1'riiiity term, 31 Geo. HI. llmrti x. Murphy, 1 Kerr '2U7. ir,2 ATTACIIMKNT. :t ^Ik'i iff Wlini not ^n'iiiiK'd auaiiiol nopiitiifioii h) rail 5. An attaclmioiit will n>/ (Unu- irHti-r, I)tr. 187. -% U itiir*.*.. An attiiclimont will not bo j^^rantcd for not obtning a Hubpona, wbcn tli<3 witness is in custody at tlir tiiih' of service. Ii';iin M'itiir«>s %%'ilfHl \li%«>iir<> 4 alliiiu <>ii Siit>|>>>,'\-. K, In order tn payment of co^ necessary that ^ulc is taken 01 l:t-<'oMs I III ^Vliere the ATTACIIMKNT. 1G3 tliou^'Ii ho mill another juTHon sworr, iis (•(mtraiUction to tlio party who stTVcd tho siil)|»(i'iia, that tho ori<;in:il writ Wiis not riliown to liim, and h«« also sworo that Ijo attondtMl thf court as a juror, and left in conHciiucnct' of ill htiiltli, with the intention of returning ; hin ahnencc appearinj^ to 1)1' wilful, .fdhimtui V. il'illidnm, 2 .1//. 171. M— \liliir<«* -ll«>fuMil to itiriiil I'oiKlrr ol I}\|m>ii*i4*«». Where a party is served with a Huhp Timr of ipplirafion \% iliirs**. All attaclinient a-^'ainst a witness for contempt must ho applied for at tho next term after tlie contempt committed. l)'iCil>iii. Ilout'Y. Mrdllri/, jlr. \'2,\, 10 To Fiiltiivi' Itiilc. Motion to fiilar^'e rule for an attachment against wit- ness for not oheyinK suhpcuna on the ground tluit he could not ho served with the rule, must ho made at the term in which ruK' n\xi is returnahle. Ahh.,t v. /•'/(/(/.. W K< iv WM. ICiilr. 1ki'4'<'Iii<'iiI lor <'oii«»4*iit A refusal to pay costs, taxed upon an n ivfewcnt for a eonsent ruh'. will not entitle the opposite party to an at- tiit'hiiK'ut for non-payment. The rule sliould ho first drawn lip. I>'»'\. KiiKj, a AV/7 178. l*2-roH|s Titxiii); iiii«l<>i* 4'oii«.(>iit Itiilr. In order to entitle a party t > an attachment for non- paymont of costs under tho terms of the consent rule, it is necessary that tho costs should h" taxed ,t/(rr the consent lulo is taken out. Due v. Kin. iJJ-roMs iiii|>io|>4>r laxaiioii ol" ^\ here the amount of a hill of costs, in which one item 164 ATTACHMENT. viiiA iinj)n)ju'rl.v tiixfil, Imd Ix « n »!• inuiulrtl. an iittarlmit nt was gnintctl fur the iMilaiu'e. i>oc d All. 143. 14 rOHt»-~^lll»*><' llK'IIMTfl. Tlu' drftutliuit, lifter u (li'iniunl of costs \niilii-|>iiMii<'iil III < o*.|H- I'ou <-r «>t illoi-ii«'> I'ourr of %lloi-ii«*> iMTcsHiii) lo iiiitlioi'i/.r (IniiiiiKl ol Tlu' attorney in a suit reforred l-y order of ni.r «>t Alloi'iii*) % nifiratioii. \Vhere the alhilavit of tlie due exei-ution of a power of attorney to demand costs under a rule of Court, was iiiiitk- in Nova Scotia hefore a .ludj^'e of the Supreme Court there. — fitil, Tluit the signature of tlio .ludj^'c must be verili«ii by an alVnhivit made her*-, in order to make tlr' demaiul under such power sutlicient to found an attachment, rrm-r V. U'trdimi, 2 Kti'I'M). %t—Hvr\itv of 40|») of i*o «%«•!• of %llorii4>). An attaclinient for non-payment of costs will not 1h* granted, when tlie costs are denuinded under a power n«-iiiiiii4l :tf CosIh out of l*i'«»\ iiiri' l*lii4-<* of *t**» iiiaiid. A (Iriniuid of costs in Nova Scotia is siilVicifiit to sup- I'lnt !in a[iphcation for attachnn-nt for non-payment. (I'lirkt r, .),, */»/»(//n*/<'.) Tho jijace wliero tho rlcmand was made should l)o stated in the atVuhivit on which tho motion is made, and a rule nisi only granted (per rarlcer, J). Ji':- (jiioi V. Ih'hnu'if, (i .1//. iMf). 'iO Time ol DniiaiMl. Tht' atlidavit of the di niand of money in oriUr to oh- tain an attacinuent must state the day on which the de- niiind was made. ('hrll v. 'I\»hl, 1 .1//. I'J'J. 'il— ( osts l>«'iiiaii«l ll> ulioiii iiitidv. An attaciujient will not he j^M-ant.d for nnn-paymont of costs, unless tho demand is nuide hy tho party entitled to receive the costs, or his attornt'y in the cause, or a person authorized under a letter of attornev. Marsh v. Ji'>s<\ ('. M>K lOo. *i'i ('oiis«>iii iiii«. iitsts ta\4>4l iiiMlcr. Ou motion for an attachment, for not payinj; costs taxed under a consent rule and a rule for ju.lKtnent as in case of a non-suit, it is unnecessary to shew that a l>(>fori> I'oiiri. A nilo for an Jittiu'hniciit aK'ainst a party for ii.it p.T- fonuiii^' an award, will not he j^rantrd unless tlu iwanl is brought btforo tlic Court. .V-j/As v. M<'«liii|i;» Huaiiisi ^lirrill I<«-iii oii .liKlmiicni not l.(»«»l \\ Im'ii '. S'l' lUric'hargc. '2-\ .lii(li;<'*«> «'<-Mi(i< ]it4> llint iIh-it \ia<» no i-r:isoii!il)l<< 4':iii<»4> t 4'oiii-| 4 aiiiioi Uv iiia«l< a Milr of < oiii-f lo foiiiid an illarliiisriu. Srt !f-!"<,r\. ('rn<)h:<}iiiiih, I .1//. ;{75. *i4> r.\liil»iliiitf Iiil<>rr4»;;ar"ri('s 'I'iiiK'. If the proHi'fUtor dots not cxiiibit intcrro^atorii^ against a dctiiulant in custody on aii attachment for coii- t( -apt. a rule n-ill he granted for his dischar^'e unless the interrogatories are tiled within four days. Jicjin't v. Snl- t.r, 4 J//..-)]. 'It ;vilai :-i<> ol frinstile after \n- (liii't in i:j' i inicnl Itfaehineni aKiiiiinf iii3irri«'nt !•> in natni'<> nf a 'V|«'«.ii«' l*i-of<>s«« V|i(>- ritl i:<«4-a|»«' l.ra^Mlil). An attachment for non-payment of costs is in tlie na- ture of a mesne process, and a ylierilT is not liable to an ac- tion for the escape of a person so imprisoned unles.s tbe plaintilT in the suit has sustained a(;t'..*l dannige or il< lay n consequence of the escap-'. Af'rinson \\ Mitchi'll,tj AIL Ji45. *if>— VJ<>rtioii l.au— -C'u*tfs itia4-linM>iit. \Vhere the Ju(lge who tries an (lection pttition iiuikij an order for costs under tlio &2nd sect, of the Act \V1 Vic. cap. iJ2, an attachment for non-payment of the costs shtiull be granted by the Judge and !iot by the Court. Kiy v, Uanitt'jUm, 1 lUoj: 8JU. ATTACHMENT. 1G< •.U> i:iiiiiru<'iii<'iit <>> SI nilr lor Attn* liiiiriif . A motion inailo to i-nlarj^.' a rule nini for an attachment upon atVulavit not very satisfactory, and a majority of tlio Court so coiiHidtring, yet, there i)ein{^' a minority in favour of i'nlar«;;in}^ rule the motion was -granted as if an attach- ment was necessary, it couhl only ^o with consent of all the jiul'^es. and actjuiescence in postponement therefore a('4uie,so«.(l in Jmirtt tt <:!. ^'. S miih, '1 I'ikj. l.'*. ;{l < (isfH— \% li<'iii«'i' iiiisK'liiiK'iii f4»r, uiil l»4> K*''**>t*'e])t Act, 'M Vic. cap. 7. (See however, uow, Con. Slat. cap. I'i.) It is a gcnt-ral rule that a statute bliall n(.t be so cunstruecl as to operate retrospectively, un- less it is exi)ressly made applicable to past transactions, or th.' words can have no meaning unless such > construc- tion is tulopted. Smith tt rs4>iii«>iif oil VViiiol %f.ta«-liiii«'iil— < oiit<*iii|>t. Tht' endorsement on writ is sullicient if it inform the party what the proceeding against him is for. liciiiiui v- tl-l'iliim Itiilr iur \na Oriicr \ii:i4 liiii<>iii %< I. Wluri' Attaclnnei.'t was issued durinj^ the pro^^rcss dfa cause on the order of a Jud;^'' under Attaehnu-nt Act :^7 Vic. cap. 7. see. ('»:), (Consol. Stat. cap. I'J. sec. fio.) I{*ol\ ('III %«-(. ""h( provision in the .Xttaelmient and abolition of Im- jirisonnunt for l)eht .\'. t U7 \ if. laj) 7, (Consol. Stat. c;iji. WS) providing that in case of an Assignment in insolvency or the issue of a writ of Attaehmt nt, any AttafliuK iit. A'\, >liall be dissolved upon order of (\)urt, if .Ttidge does nut apply when the property lias been restored to defendant on his giving ft bond. JJt\iffl \'. Ml' n >t elii> |>iH«>4»l\ inu \t- Ul4-Illll<>lll. //././, by Weldon, Fisher, and "Wefmore, J. J., lAlIic. (.'. .1., and l)uiT, .1., (/i««.) that the r>(ith section of liiai'tfi ■Pi, Consol. Stat., which proviues that in case the phiintiif delays for twenty days without the consent of the deftmi- ant, or the leave of the Court or -Uidge in taking any pro- ceeding in the cause, the Attacliment nuiy be ilissolvtd un- less good cause be shewn for the delay, applies, altljnu;:li the property attached has been rest(»red to the tlefendai:: on bio giving a bond. (A/u//./ v. .Hl>n, 1 /'. i />'. l'"- overruled). Smtsex Jiiuit .0 Shtu' ( li red II, 2 /'. .f /; Where an Attachment has been issued afiftinst the property of dtftndant under Uie Attachment Act 3: Vic. cap. 7. ' Consul. Stat. cap. m and a writ of Attachnui:! in Insolvency was subbequently issued against dtfetulau; Jil'torward'^ nni ATTACllMKNT. UVJ IhU, Tliiit as soon a;-t the irtsuf of a writ of AttiK^hmrnt in luBolv. lu'v w.'Vrt iiiiidt' to ai'i)''ar to a Jiil'^o, the latt^T wan hound imdir sec. .'» 1 of Act :57 \"u'. cai). 7. (Consol. Stat. cip. M8, s(.c. .■.."'») to (Usfiolvf tlit> Attaclnnciit. and tin* r.-j^u- hn-itv of tlif proooedini^s in Insolvency oould not lit) en- (I'lircd into. '. »*.. U> Wli.rt' an Aitaclimcnt ia issufd under Act :57 Vio. ('ill.. 7. iConsol. Stat. cap. IN' and tin- drft-ndant iiftonvards niaK'S an assignment in Insolvency, thr Attach- incti* \vi' V dissolved, without any reference ti» any ri<^ljtH or n lunlies which plaintilV may have with re^'ard to cost.^ under tlie Insnt Act. f,)//r, (V— Wii 'h plaintitT has, in such a case, any li.n for his cists, liullm k v. Himi, :\ Vinj. 'J.Vi. tl i:\eeiilioiii iit l.ieii of illaeliiiiriit iiiidei* :tM Vir. (■Sl|>. I >( '. . '.1'i, To ohtain an execution, in lieu of \ttachment under tho Act MH Vic. cap. 4. sec. '22. (Con. Stat. cap. HH, soc. 27) tho same facts must he shewn as were formerly necessary to procure an Attachment, ('"ttnn rt a!, v. Stack, :i Vui. -ill. 12 llela} ill \|i|»l}iiiu I'.vpltiiisilioii. On an apphcation unf .attach- ment, it appeareil that one rule ordering; th»' plaiititl's t'> pay the defendant costs, was made in Hilary i't rin, MS \ !'•., iiiid the oilier in Kaster Term, \\H Vi.-. ; that the plain- titTs had not heen in CAuuda since* the rules were made, and that the ctists had heen repeatedly demanded from the plumtitTs" aitorn»v. and from their ai'eiit •:! New Hruns- ^vit'k. //-/,/, That tho delay inappl>in.4 was siitUciently t^xitlaiiied ; that the ilefendant was entitled to apply for an Attachment, and the order U)T the issue of the writs of ji, ''I. was made accordingly, dfttmi ct ] 1. l=t I iia> «»o|h ol ih<> dii>. The Court will not make an order under Cotisjl. Stftt II 170 ATTACllMFAT. cup. 38. sec. 27, for an execution to issue ji^aiust an at- torne}' for cctsts wliicli be luis iui(l!i«'l»ls i|;ai iiUiKM* \«-| r«>r|tor:i(i on lUI'lil Ot \% lll'tlK'l- IIIOIK'} |-«-«'<>l\ <-4t iM.aail 1)4' lllarlird l>) <'r«>(lilor ot < «ii-|»<»i-alioii -llr|M>si| ol iiioii<'> I'lihlir 4>flir4'r*>. Mon.y reeeivcil hy an a^'iiit i>f a Corporation is lial !" to Attachment umicr the :\H Vic. cap. o i Consol. Stat. rap. 43.) hv a creditor of tor ('orporation. thou^li it was r- eeiveil bv such a>;t'nt in the course of his employment. :ui I held I'v him with the assent of t!ie Corjtoratiim. and iiotivi- versely. M. .\ssistant Superintendent of a liiiilway Co.. deposit- ed in his own name for safe Ueepin;; with I. A- Co.. phvato hankers, momy known to belong' to the Company. Iltln, 'I'init the relatK.ii of debtor and creditor existed between I. \- C aui J the llailwav Co., and tlie debt could !».• a: taehe(i bv a creditor of the latter. The Tost ntVu',- Ii .s[>ector held in hi.s handB a c heck received frnii the I'o-t M;ister C all«i ^loil;i;aK«' ^ale l^ai iii-»li' ■ A4-< Uvht «lii4' <•! 0\% t%ni' A iJuii.iing Society held a mortj^a'^*- aj^'ainst the proptriy of E. Default liaving been made in payment, the proper- ty was Sola under foreclusu/e "u *2tUli February, IH.''. 14 .■i!i(I l)id in b\ <•■ nf. (l,)\vn, t .'iiiil halaiiii' I "11 t!lc (lay of Socicfy $:,').{) e'l the (ifi'tl, ■"^'•(•iety, inclu "I'ler iijid. r t'l ' ! and strvt*i-ly entiti,. ^ 't'' to ])rnfedur "'' the title nf a- iln^t the gam ^" fin ai)i(ia\ '•■ '-^ he stat-'d •'"'«(-' todecid- ' "ttaohnient nj '^ ^\'>uld .subj,, r ■ 'i'^' -^tatenientl ''"'"'■(, 2 J: ,, J ATT.\(IlMi:\T. 171 ;in( 1 l)i.l in liy NF lor $5 l.*;. TIk^ torins of sale wore 10 per cut. down, to Ik' forfi itf.l if purclmsc was not eiirritil out, and haliinn' to he i);iu\ on dclivt rv of dcctl, Tli«^ purchaser on tht' dav of siilf ridtli Frhruary), paid the Holicitm- of the Society $.");■>. 00, and tlic 'kd of Mandi followin^j. hv ao<'rpt- «d thi' dt'i'ii. and paid the l>ahii:iM', Tho amount duf tlio Society, inchidin;; t'Xjunsis, wa-; $:U1.J7. An attaching' Older under tile (larnishee Act, 'AH Vic., cap. .". was ohtain- el and served on tlic Society. 1st Man h, at the iiistanc*- of F. a crciiitor of !•",. llilt or sum of UlOlli'V due I'l' iiwiu^ til !'. from the Societv, 1' was ivt entitled to iud,;ne'iit aj^ainst the }^'arnisl«ee. \>ii,< it , Win thei-, if th.' proci'eds of the sale Ini 1 hei-n ;et lally received hy tlo' iiiorlj.;a;.;ee Nslun the ord-r was 1. il Would liavi' heeii sr.hject to atlaclimeiit. I'ltnihT i>y i' . ei C. i'Mirr, \\ I'll' I. I Si; |(> iliitilhiiu \(ei«l:iiil lo «• i-i si>i <*iii-iiis|i4>(' Oi-<|«>r i :iii4| 4ri'Uiiiit> rr<|iiii-4*l he stated with .sutlieient particularity to inalde the 'nl^e to decide intelli''t-ntlv whether it i s a cas," in which utlaolunent mi'jht issue or not, aui 1 with 1 sueii certainty e* \vould suhject the plaintilT to an indictment for pt rjur tl 10 statement of it should he untrue. II' hi tt t'lllnie V, 'labrrt,'^ I', o /;. :}r.i, 17'J ATTAC'llMKNT. 17— < :iii»«> of irlion srf oiil ill \tlio,<\it \ ai'iaiirr. Till' plnintilTs. hy tlicir ii'^rocjnt'nt. li.i 1 i'')V.'n:iiitr ] v,),,] aproril to .!.>. for $'2. .'00. certain work for the (Icfondunt, who was umlt r contract witli S to hiiild a row of (lwclliii:>>, th<> work t'l I'c fini>hc(l hy a tlay tlit>r(>in lixtd, aiitl \v;t!i leave to the ilefrmlant in cane the work diil not ]iiogii>.s satisfactorily, to ( i!to(l that sin'h ent' rin,; and takiii'' po ssessii>n o f tl le Wi of, or as Mil Thi' work was not conijdeted at the time tixed, uii a fti r notice the d< ft ihlant tooli possession of the wor rk ai .1 continih il it. The plaintilTs had hcen paid in part, for) m. o f tl »(• anio unt of th» contract price the defendant li: li accf'jited order-, and the latter had ht en si rved with ,l;ui- nishfc orders hutVicicnt to cover any halani-o on accmiut 1 work done. The plaintiJYsapplii-d (or a garnishee or.h ru!> n an alVidavit in whi(di the eause of action wa^ set furtli ;is A sum of $>'1,'1'2'.\.')~ for work and lahoiir doiu' fol ows : — and perforp.ied. and materials provide. I hy the plaintilTs f.ir tht defendant, and at his re pu'st."' Tin* County C'min Jud -V' '^v,iu ted tl le or li r, an ( it was servei I upon S ati .1 the defendant's hanker. The d»'fendant claimed theiv \\.i> notliiuij; dui'. On an application t<) s^t aside or vary t it' q^arnishee order, it wh- II- 11, That under the facts tliscio-.4 the plaintitTs ciuihi not sustain an action of 'nuiiliitnt.ii l>»ili<>- \ plaintitf catniot i^'arnishee nion* ys not dw ahsohit to th. primary delitt>r, l>ut dept ndin^ upon a contiti^jii' in^,' order is li jiiii^'i'. and the in the matter, 1 form. When ti tijority lias hee pro(co(iin(,'s in file same inhert (leal with aii\- o •»0 < oiiiiolliii lile Court wi K'>0(i faith, and used for the pi I'liiDuiy credit. 1 sicuriiij; the dei> » ilMT. A (jijit due •■^'ia^'eiit and d> '"' i,Mniis!iee,l u >■'* ttl:ie|||||,.„, lU ( oiiiil) r«»iiri .liKiKe Jiim»4Ih tii»ii. When the amount Hwurntu in an aiVid.ivit for anatta ATTACHMKNT. ]1'.\ i'v order is hrvond tlir jurisdictioti of a County Court jii(l<.'t', and the iilVuhivit is HUtVuMrnt, ln' luis no discrc'tion in the matter, Imt must isHuc tlif ord( r in tip' [)r('He'ril)cd form. Wlii'ii tli(> ordrr has but n <.;riint«'d, liis spcciiil au- tiiority has l)('on sju'tit, aiul the orihr hrcoincH jtiirt of tin- pnuffchnf^s in the i-ourt liavin'4 jurisdiction, and thtv hav»' tilt' satnt' inhorcnt power to (h-al with it that tht-v h:ive to (kal with any other iiroeess or proofudiuj.; in the court. ///. ■'»0 < oniiolliiiu l*oi%4'i-iii <'4iiii'l to l*i-r\4-iil Viiiisr of I'rorrss. The Court will not allow its procss to he used against u'ootl I'aith. and when it appears that an attachin;^ or..er is u>eil for the purpos * of harassinj; or eniharrassin^ the [iritiiHry creditor, and not l»>, ft /!<{•', and for the purpoa.- of sicuriui^ the doitt, t'lo court will vary it or set it aside. Il>. •)l <>:iriii'«li I'oiM'iuii < Orpoi-atioii i};rii4-> in I't-o" A il.iit due from a foreij^n corporation, though having an iij^cnt and doiu}; husincss within this Trovince, cannot 1"' i,'ariiislieed under the Act US Vic. cap.r;, (Con.sol. Stat- cap. -t;).! Hiitw;/ V. M.uioir, 3 Pifj. "JTO. '*i llla< hiiK'iii toi- 4 «»Hfs (mmIcimmI t«> !»<> |>ai> iiiK ^iHl»^4i>iii« InsMfn«-i<«»n'y of I he fact of the parties to a cause havinL» agreed to •'•ttle, or having the Huit suhstantially settl.-.l hefore a wit- iitvs is called on his suhpiena, will not wave Ijini from lia- '"I'ty to atliichment for wilful disobedit-uce to the prucesn. '''"'dm. CmreUy. iSmitli, H 7V/. WS. 171 AriArilMKNl'. • > I M I'll of l*o»»«'«>^ioii |{r riili} Im l>rlrii(l:nil. Aft^r possession of iirt'iiiiscs rrcovirctl in rjcctni' iit 1ms boon tlclivt'i-fd to the owiit r liy tin- slu'rilT uml the writ nf possession is rt'turnnl, the jKjwcr oi* tlic conrt in the scit is at an t ntl. and an attachnnnt will not \>v j:;rantiMi a;^ainst l»nrty re-intt'rin^'. Jhn- ,l,iii Ct>iimnll\. Smidi, 2 /'//./. Ml. ^'^^^ ^4'iliiiK a*>i<|«> iifiirliiii4-iil l>«*l:i,> in %|»|>li4 alioii. An application to stt asidf an atta'-hmmt issued niidir M \ le. eap. 7, ^Con. Stiit. cap. I'J.i must l)i^ niadf liofoif ee liiihin ft ,il V. 'i>.. 1 /'. ,( /.'. 111"). au- l ol lliiid |>ai-n H«>iiiii;; up ol. The ri)j;lits oi u third to tlir property attaehed be Set u\i hy the defendant in an application nnide hy him to get aside tile attachment. KitJnii w ('Inithiim lirtinch Hi/. Co., 1 /' .. /;. -ji:.. carmiv. •17 4 Oi-|MM-illioil. Tlje property of a corporation is subject to attaching;! undir the Act :)7 Vic. cap. 7. Konsol. Stat. cap. I-.^ Kidhiii V. ( luirioim Jhiiiiil, llu. Co., 1 /'. ,\ />'. '1\'>. 'IM— K4><»ii';iiniim l^efiiKlaiil fioin liriiiKiiik' Action <>■■ Itoiid. The power to restrain def< ndant from hrin^in^' an uct |.iU on an attachment bund lulon^^s to a judge and not to Hh- court. M>iirhr tiiat iiiiiiiii. .SVc (.\)sts \'. \-lu SiHtt I \ liurL \na<-liiiii'iit l.a%% ifll4la\ ilH. .Set- Alliiiavit. K«'i-\ ir«' of urii on aK<'iit of <1ff<-ii |»4'1H«»II H«'i'\i4'4> H4't a»i4l4*. Sn I'racti^t W. *2:{. l',i)i<,t v. ilolmtx. C'osf 4>f A|»|M>ai fr4>in 4I44 ioioii 4»f .Iii4l;;4' in l'4|iiii.v If (■0% t'i-al>l4> i») alla4-liin4-iil not i»> 4*\4'4-iili4i Sec CoBts 7'.». 5ir General Itules i;}. II. ('•Jiirt. cannot h, nuuid iiiidrr i''.in *'n,' plaintill iin'>t!ifr attorney ATToiiNKV n.\m;isrKK rorxsKL. 175 ATToiiM'v n^niii*»Trn €oi\*jrr 1. A AMISSION. II. SnilKINC OFF IloI.L. 111. ruiVII,K(iKS. 1\'. rNCF.UTIFICATKD. \'. AlTlliUUIY. VI. hniKs. \'ll. I.IAHIMIV. VIII. 1^11,1. OF Costs. IX, Taxation of (!osts. X. M;s;-i:!.I.ANKOl"S. I. AHMISSION. l_.V,y General Pailes 15 to 25. N'V Ai'ts of Ass( nibly 'H) Vic. cap. 28, ;K) Vic. cjiji. 7, HI Vic. ciiji. '.\. II. STIUKIN(i OFF lioi.L. •2 Some roason .'^lioiihl he given for striking an attorno\' ol] tilt' roll, even on his own upplioation. /•> jxirte MrCiillii, Cent, one ifr., 1 K>rr 521. '■' An application to strike an attorney off the roll for miscoinliict, luust he foun(lerH,-, 2 AVrr 021. 'i V('iiii«>. ^it' plaintiff, an attorney of the Supremo Court, hy another attorney sued out a common ctipias against tiie 17( ('» ATTOliNKY— RMiniSTKIl ( OINSKL. tlt^ffiidimt, Mild laid tin- Vftnir in Vork ciumty, drscriliiiij,' liiiiisclf in tin- connncnc'iMnriit nf tlic drcluration uh an at- toriuy of tln' Snprrnic Court, and » ntitKd to liis iirivik-j^f as attorntv ; on tlie dt'ffndant obtaining an onbr to rliiinf:.' tlu' vcniir to till- County of (iloucfstt r. on tin- usual atli- iluvit tluit tlu' cause of ai'tion art'sc tlitrr, tin- |>laintitTin anotlicr order had the vmue brou-^dit luiik, on tin* ^nuiii'l that as an att; iiuy he is entitled to lay anil reta.n his vonue in York ; and on motion to reHcind tlie la.st onltr— JIiUl. That the laying,' or retainin;^ the venue in the eeunty where the court nits (vi/, in tlu- County of York,* is a pri. viloge inherent in the attorneys of the Supn-nir Court oi this rrovinc //('/rior ohjeclion to its regularity. J >ns. :i i.i«'ii. An attorney has a lien on a judgment ohtained hy him for his costs, as hetween attorney and client. Lintnii v. ll'ilsoti, 1 l\. rr ailO. 4 Wliero the court allowed a judgmint to he set-oti against another, it must he suhject to the attorney*.-^ liiii |:;euerally. and not merely to the extent of tiie taxtd r()>tb in the i)artic'*iuii<'4l> AttonifV liiis a ri^lit to receive tlu' taxed eostH of jinl^- mciit assif^nt'd. Sff (incit v. IfH, 1 .(/. i\\)H. M I'aiiii's «»«'liiiiiK xiiit. Tlic partit'S to a Huit liav*- arij^lit to settle it witliout tlio consent of til" attorney, ami he is not jiistitied after iiofit-e ef the setth inetit in imu'eedini^ witli tile suit to recover his rosts, unless the settlement was eollusive for the puriioso of dcfraudin},' him. I'.r pmti' Mnisc, ;i Kur '.U'ti't. The court will not compel iUi attorney, on a siinniiarv ap[)lic:itii\ i<«> of hill ii|Miii iiltoi-iH) slioiild, ill (jciH-ral, he |M>i'<>>«»iiiil s<'i-\ i4-4>. Scr Si(i/if \-. tiillirrt, '1 Kur, 'I'l'). 11 ItsirrixKT. A barrister has no Ux^ii] retnody to recover remunera- tion for his services. In re Ii iiDi) ivifiis«> to aillou 4 oiiii«>rl lo inidi !>•>.«. Jury. Sir Trial. < uiiiisri tvv OH arhilialioii. N 178 ATTORNEY— BARRISTER— COUNSEL. «- The proceedings in a suit by an attorney wlio has not taken out a certificate under the Act 22 Vic. cap. 28, are a nulHty ; and the objection is not waived by the defendant's attorney attending the trial of the cause, after knowledge of the omission. Ryan v. Mclntyre, H'tl. T. 1870. 3— ITiicci'tificated Attorney— County Court. An attorney of the Supreme Court may practice in the County Courts, though he may not have taken out a certi- licate under the Act 22 Vic. cap. 28, (Consol. Stat. cap. 34.) Voto V. Qiiiiisler, 2 Pun. 432. 4— Ati -ri f'y in cause not allowed fees as witness. An at^f^vney in the cause is not entitled to fees as a wit- ness, it }-vVi.: his duty to be in attendance on the trial of the caufc. . Junes et al v. Bohford, 1 P. dc B. 581. V. Authority. I— Written. The Act 12 Vic. cap. 40, sec. 15, requiring attorneys to have written authority to sue is not limited to summary actions. If payment has been obtained in a suit with knowledge of the client, it will be presumed in absence of evidence to the contrary, that the attorney had written authority. Either party may apply to stay proceedings in an action brought without authority. James v. McLean, 3 All. 164. 2- -Production of Authority. Counsel not required to produce his authority in making a motion before Court. See In re Hunter, 1 Han. 233. 3— Signing Cognovit. An attorney has no authority to sign a Cognovit in a suit without the authority of his client, but his client will be bound by a Cognovit given without his consent, if he makes no objection when informed of it. McNamee v. O'Brien, 4 All. 548. ATTORNEY— BARRISTEII— COUNSEL. 179 accept it. The plaintifl.s themselves making such an agreement would not be biuind by it. The Bank of Noid Scotia V. Morrow, 1 P. k B. 843. If an attorney enters into a compromise, although con- trary to the directions of his client, although the compro- mise would be idtra vives against thu client, it would be binding as between the parties, if made rensonably skilful See same case — judgment of Allen, C. J. and bonufde 180 ATTORNEY— BARRISTER— COUNSEL. S— 1Tiiaiitlioi'izc«1 persons cinployiiin^ Attorney to insti- tute procefMling^s— Settin^^ aside or. If persons unconnected with a companj', or its duly qnahfied officers, authorize on action in the name of the <5onipan3', the client will stay proceedings without costs. Deicelfe v. Albert Mining Co., 2 Pug. 260. VI. Duties. I — Implied understanding to pay over money collected, on demand. See Gilbert v. Palmer, 1 All. 455. 2— What is a sufficient demand 1 An intimation from a client to his attorney, who has collected money, that the client wishes it paid over, is a sufficient demand to support an action for money had and received. Gilbert v. Pulmer, 1 All. 667. It is not necessary that the demand should be made at the attorney's residence or place of business, unless he objects on that ground. Ibid. Duty to communicate to client offer of compromise of suit. See Supersedeas, Jones v. Steves. 3— Counsel. It is the duty of counsel to see that rules obtained by them are properly entered in the minutes of the Court. Ex parte Glass, 2 .411. 88. See Practice in Equity 21. 4— Attorney and Client— Right of Client to statement ol account and bill of costs. A client is entitled to a statement of account from the attorney who has collected money for him and of the attorney's bill of costs. In case of refusal of the attorney to deliver such state- ment and bill of costs, the court having authority over its own officers, will compel him to furnish them. Gitnterv. Sharp, 1 P. d- B. 286. AT K and he ford, 1 1 6 wi] —7 ATTORNEY— BARRISTER— COUNSEL. 181 5- -D'ltyof Attorney to attend court on trial of cjiiise, and he will not be allowed witness's fees. Jones v. Tints- fori], 1 P. <(n.581. 6 Duty of Attorney and counsel in a cause to attend court until cause is disposed of. Boires v. Siitlwr- land, 2 Kerr 1. VII. Liability. l-roi" SlUM-ili's Fees. Attorney liable, as well as plaintiff, for Sheriff's fees on executing writ of ca. sa. See Kavanagh v. McPhelini, 1 Kerr 472. 2 Not liable for poundage on execution unless he receives the amount from the defendant, though the defend- ant has escaped from the limits and his bail has paid the (lel)t and costs to attorney. Caldirell v. Bachjer, 2 All 516. Not filin;; pitpcrs— Forlciture of costs. Sci Practise VI. 48 a. 3— Improper Pleadiiij^. If an attorney, without any assignable reason and with- out any precedent, adopts a new and unusual mode of pleading, in consequence of which his client suffers loss, the attorney is answerable in an action for negligence. Carrlijini v. Andrews, 1 All. 485. l-lMsiiiiiK Void M lit. An attorney is liable over to a sheriff who sustains damages by proceeding under what purports to be a writ of the Court but is not, when the same is put into the sheriff's hands by him. Johnston v. Winslow, Ber. 53. VIII. Bill of Costs. l-Dcliverj of before action. It is not necessary for an attorney to deliver a taxed bill to his client before bringing an action. Jack v. Cleices,. 3AV/TG37. 182 ATTORNEY— BARRISTER— COUNSEL. *2 The Act of Parliament 3 Jac. I, cap. 7, requiring the delivery of an attorney's bill of costs before action broiiglit, extends to this Province, but the Act 2 Geo. II. cap. 23, requiring the delivery a month before action, is not in force here. James v. McLean, 3 All. 1G4. The Statute 3 Jac. I , cap. G, requiring attorneys to deliver signed bills of costs to their clients, extends to this Province, and is not affected by its repeal in England by th(! G and 7 Vic. cap. 73. Kerr v. Burns, 4 All. G04. 4 A general account, including the bill of costs delivered by an attorney to his client, though made out in the handwriting and headed in the name of the attorney, does not amount to a signing of the separate bills under the Statute. Ibid. IX. Taxation or Costs. 1 -Kovicw of— Rotaiiiiiig: ol iHoii«>y by Altoriioy. Tiie defendant, after a verdict against him, placed in hid attorney's hands 1*22, to be applied in pai't payment of the judgment ; the attorney retained the money, and made an application to review the taxation of costs, which was refused with costs, because the defendant had in the mean time paid the amount of debt and costs to the sheriff. The Court ordered the attorney to repay tlie defendant the t'2'2, but refused to compel him to pay the costs of dismissing the motion for review of taxation — not being satisfied that the defendant had instructed him not to take such proceed- ings. Belts v. Chapman, 2 All. 460. te-'Or«1eriiiK AttoriK'y to pny costs or«liMini<>«siii|; motion for review. Where on an application for a review of taxation of costs, it appeared that the bill was exorbitant, and the items dis- allowed by tlie clerk, with trifling exceptions, illegally charged, the attorney applying for the review was ordered to pay the costs of dismissing the motion. Doe v. Dobson, 2 All. 631. ATTORNEY— BARKISTER— COUNSEL. 183 ;i— Allow iiiM'<* of'roiiii»icll Fce«— CIorkN duty. In taxing costs between attorney and client, counsel fees may he allowed without the Jud^'e's fiat ; but it is the duty of the Clerk to decide on the authority to make the the payment, and the reasonableness of the charge. E.v parte, James, 3 All. 286. I- Outlays - Special Jiiry--Itctaiiiiii{f Coiiiiiitel. An attorney is entitled to recover from his client a sum 'laid for a special jury, where the cause has been so trird with the client's knowledge, but the Judge has refused to certify. Ex parte James, 3 All. 286. An attorney has no general authority to retain counsel in a cause at his client's expense, though such authority may be implied. If the attorney has an opportunity of con- ferring with his client, his consent should be obtained. Ibid. .t—Vonts ill liirriior roiirt— (icrk taxing. In an action on an attorney's bill of costs incurred in the inferior Court, the reasonableness of the charges may 1)0 enquired into. The Clerk of the Supreme Court may tax a bill of costs in the inferior Court as between attorney and client. James v. McLean, 3 All. 164. G— Taxable ('iiai'gfoiii— Srrvico!^ l»4>rr(»riii«Ml at i'rqu<><>«t of <:ii«>iit. In taxing cos-ts between attorney and client, the attor- ney is entitled to the taxable charges of drawing and copy- ing a declaration in a suit brought by the client, though lie is not the attorney in that suit; the service having been performed at the request of the client, and with the assent of the attorney in the suit. In re Bayard, 1 All. 571. "i—Qiucre, Whether an attorney can recover from his client money paid for counsel fees ? See Jack v. Clen-s, 3 Kerr 637. M— Rt'fovcry for ^icrvicosi other tlinn provided tor in the ordinance. In an action by an attorney to recover the amount of a ■l. ii 184 ATTORNEY- -BARRISTER— COUNSEL. bill of costs incurred in defending defendant against a criminal charge, the bill had been taxed by the clerk, who taxed only such items as the oi'dinance of fees provided for, and refused to recognize or touch the other items. Held, That the jury were bound by the clerk's taxation as to the taxable items, and as to the others they might find for the plaintiff for such services as were in the nature of the attorney's work, but that plaintiff could not recover for counsel fees. QiKcre, Whether if the clerk had followed the English practice and taxed the whole bill it would have been sus- tained ? Tfeck v. Tingley, 1 Han. 418. 9— Riilc di'0|>|»c«l— Fee of CouiiMCI upon nrgiiiiicnt. Where a rule for a new trial dropped by reason of the Court being equally divided, it was held by Fisher, Wet- raore and Duff, J. J., (Weldon, J. diss.) that the plaintill' was entitled to a counsel fee on the argument of the rule. N. B. Railway Co., v. Murray, 2 P. d- B. 412. X. Miscellaneous. 1— Aetioii r4»i-ii<>;?li^:eiieo— Preferriiiif of jiidiiifineiit. In an action against an attorney for negligence in con- ducting a suit for the plaintiff against M., it was proved that at the time the plaintiff' employed the defendant, he was informed the defend an<^^ had a judgment against M, which would have priority over the plaintiff's claim. Held, 1. That it was no breach of duty on the part of the defend- jint to proceed on his own judgment against M., and ex- haust his property before issuing execution on the plain- tiff's judgment. 2. That evidence could not be given that the amount for which the defendant's judgment was signed against M., was not really due. Alison v. Weldon, 4 All. G31. tt— Rc<'oi'»(liii^r— Action against. Where Bill filed in vacation, attorney must plead with- in twenty days from time of service of copy, and cannot wait till ensuing term. Sai/re v. Gilbert, 2 Kerr 225. 5— ifIi!«<'onfliict— cognizance of, by Court. Where a motion was made by thu defendant against the plaintiff's attorney, requiring him to refund costs ^'hich had been taxed for the plaintiff, on the ground that a payment had been made on the demand before action brought, reducing it within a Magistrate's jurisdiction, and that the attorney aware of it had incurred a large amount of costs, which the defendant had paid ; and the applica- tion was accompanied by a draft of the bill of costs, which was said by the attorney to be lost or mislaid, in which draft there were apparent overcharges ; the ground of ap- plication in regard to the payment was satisfactorily an- swered, but the Court considering that the attorney had not exercised sufficient forbearance towards the defendant, in going on with the suit when there was a very small sum due, ordered him to prepare a new bill to be taxed, to re- fund to the defendant the overplus, and pay the costs of the motion, although the attorney had offered before the application to refund a certain amount, or lo abide the tax- ation of the opposite attorney. Melanson v. White, 3 Kerr 501. 6-]?Ii$conduct. If an attorney of this Court is guilty of any misconduct in practising in an Inferior Court, this Court will take cog- nizance of it on a summary application. Gilbert v. Soney » 3 Kerr 679. 12 r^' 186 ATTORNEY— BARRISTER— COUNSEL. 7 The Court will investigate a complaint made against an attorney by his client, and make such order therein as justice requires. On such an investigation an attorney was ord'zred to refund money to his client and pay the costs of the aijplication. In re Lugrim, Trin. T. 1831. ProctH'fling: in uctioii ufler receipt |j:ivciit Sec Receipt, Moran v. Gallagher. Ordering; Attorney to file 'wviu See Execution IV. 7. 8— Ciianire or Attorneys— Attorney in contempt- Time or iippiicution* Where a Judge's order had been made to chanfje the attorney and file the papers in a cause, in ignorance of the original attorney being in contempt, a party wishing to take advantage thereof, should apply to rescind the Judge's order. Kerlin v. Baillie, 2 All. 115. It is too late to apply after receiving a copy of declara- tion. Ibid. 9— Proper person to make application— Reasons. An order for a change of attorney ought not to be made on the mere application of the attorney, on the ground that he is unable to proceed in the suit in consequence of non- payment of court fees. Kellif v. Dow, 4 All. 256. Where such an order had been made and acted upon, and it did not appear that the client was aware of the dis- ability of the attorney at the time he commenced the suit, the Court refused to set it aside. Ibid. 10— Talcing; l¥arrant ot Attorney— Items improperly included— Ig[norance of party. It is improper for an attorney to include in an account against his client, claims for money lent, with professional charges, in order to take security for the whole ,• nor should he take a warrant of attorney from his client with- out affording hiii? au opportunity of taking legal advice upon the nature of the demand and the security. Smilh V. Jones, 2 All. 176. ATTORNEY— BARRISTER— COUNSEL. 187 Whoro an attorney, without any fraudulent intention, took from his client a warrant of attorney for costs of suits and moiioy lent, etc., and for a settled account duo from a former ckcoased client, whom the defendant represented, the Court refused to set aside the security and a judgment signed thereon, after two executions had been issued and money levied thereunder without objection by the defen- dant. But sums overcharged were deducted from the judg- ment, though it had been assigned to a third person. Such assignments should not be made by attorneys, particularly when there is any question about the amount. Ibid. Semhle, That if the warrant of attorney had been taken for costs alone, the judgment would have been set aside. Ibid. II If any attorney, knowing that he is dealing with ignorant persons, takes from them on a settlement, a war- rant of attorney for debt and costs, in which there are ex- travagant charges, such settlement may be opened up and examined within a reasonable time. Gilbert v, Soiiey, 3 Kerr 679. I'i-Artioii oil Attoi'iicy^s Bill— Settlement of suit— I?Ia- tcrial question for Jury — Defence. Where the defence to an action on an attorney's bill is that the costs were incurred in a suit which the attorney had settled without the defendant's authority, it is a ma • terial question for the jury, in determining whether the de- fendant obtained any benefit from the plaintiff's services, to ascertain whether the previous suit was settled with his consent. Dibblee v. Wood, 1 Pug. 137. 13-€ounscl— Witness. Where a counsel in a cause is by consent allowed to go upon the stand to prove a particular fact, he becomes a witness in the cause generally, and may be cross-examined upon any fact in the cause. Gilbert v. Campbell, 2 // m. 55. Examination as Witness— Objectionable. See New Trial. Hi ■r-i 188 ATTOliNFA— BAEEISTEK-COUNSEL. II— A«l4li'4'MNiiiK Jury— OI»j4't'tioiinl>!«T obN«>rviitioiim. If a counKt'l in nddicBsiiig the jury makes remarks ^vhicll arc considered objeetionabL- by the opposing counsel, lio should call the attention of the Judge to it at the time ; if he does so, the Judge concurring will require the objec- tionable observations to be withdrawn. Gilbert \. CaiiiphcU, 2 Ilan. 55. I't— AdiiiiMKioiifi. 1 I Where in an action of covenant brought by the assignee in fee on a warranty of title, the declaration alleged, as part of the damages, that by reason v{ the defect in the title, the plaintiff had not been enabled to obtain so large a price for the land as he otherwise might, and would have obtained ; and the plaintiff's counsel stated, in his open- ing at the trial, that the plaintiff had before the commence- ment of the action sold and conveyed the land for an in- adequate consideration, in consequence of such defect in the title ; and afterwards put the deed in evidence. Held, That the defendant was entitled to the benefit of this ad- mission and proof, as defeating the plaintiff's action, al- though he could not have been permitted to give evidence of such conveyance under any of the pleas upon the record, ]l'ull(icc\. Vernon, 1 A'err 6. 16 Where in an action for negligence as a sur- geon, the defendant's counsel in addressing the jury relies ou his client's skill as a surgeon, he cannot afterwards ob- ject on a motion for a new trial that there was no evidence that he was a surgeon. Kelly v. Dow, 4 All. 435. €'oiiii<>tol not boiiiK able to nttond trial— Excuse on mo* tioii Tor Jii«lgiiieiit. See Judgment, as in case of Non-suit II. Actual sigrnatiirc of counsel not necessary to the cop; of plea delivered. See Oulton v. Palmer, 2 All. 364. IVotice to Counsel of Party. Qmere, Whether notice to counsel of a meeting of arbi- trators in a cause, which is referred, is notice to the party'.' See Broun v. Gurrief, 2 All. 124. ATTORNEY-GENERAL. IRD :\oii<-tiial n'oolpt oriiion««y by AttoriU'y— AiTaii»f<«iiioiit of l»l -A<;tloii of \*iMiiiii|»Mit will not lie Tor money llllll illUl l'd. See Assumpsit, 86. ATTORNEY'S LIEN. ;, See Set-off, 15, Ahcl v. TAijht. ATTOIt N E V-Cit E .\E K A L. l-l*riviU'KC«— €ost»«. In suits where the Qiioon is a party and entitled to costs, a retaining fee of 253. is allowed to the Attorney-General; and for all papers properly termed " pleadings," a ' r:;litjr rate per folio is allowed for drafting and copying, than in suits between subjects. Attoniey-Genchd v. Ttr nty C^ishu o/SpirltH, 3 All. 404. A seire fdcias at the instance of a private prosecutor, to repeal letters patent, can only issue on the fiat ot the Attorney-General, who may withhold his assent if no sufficient ground is shewn. A draft of the writ and a state- ment of the facts on which it is founded sliould be laid before the Attorney-General, and if he is disqualified from acting, the Solicitor-General, or a Crown lawyer should decide on the ai)plication. LeGall v. Diiff'y, 3 .4^/. 57. :t -Liability for SliorilTS Fees. The Attorney-General is liable in his personal capacity to a sheriff for such of the sheriff's fees of ollice on the execution of Crown processes, as are included in the Attorney-General's taxed bill of costs, and received by him from defendants in the several Crown suits, after demand made, where no ground is shewn for retaining them. White V. Peters, 2 Kerr 329. 4-Rt'niovnl of Cause. On an application to remove an action from an Inferior Court into this Court, on the ground that the revenues of tbe Crown would be affected by it, the statement of the Attorney- General to that effect is sufficient. Price v Bayard, 5 All, 284. 190 BAIL. AUTHORITY. or Attorney. See Attorney. Construction of written Authority. See Contract 9. AUTREFOIS AC41UIT. See Bastardy. See Justice of the Peace, V. 5. AVERITIE^T. See Pleading. AM^ARD. See Arbitration. BAIL. A Discharge. B Belief — Application for. C Limit Bond (Sureties.) D Render. A Discharge of. I — Plaintiff procuring absence of defendant. Special bail discharged, although indemnified, when prevented from surrendering defendant by plaintiff's pro- curing his absence from the Province. Pollock v. Short, Ber. 279. 2— Surprise— Representation of Piaintifl^s Attorney. Where the plaintiff's attorney induced the bail to sup- pose that execution would be issued against the property of the principal, proceedings against the bail were set aside on the ground of surprise. Haynes v. Chalmers, C. Ms. 1. BAIL. 191 3— Delay* Where special bail was entered in June, 1826, and decla- ration delivered in March, 1827, since which time no pro- ceedings were taken by the plaintiff, the bail were dis- charged on account of the delay. Ganet v. Mclntoshf C. Ms. 140. 4-Oinitting: to enter cause in time. When upon a summary writ returnable in Hilary term, 1842, special bail was regularly put in and notice given, but the cause was not entered by the plaintiff in that or the next succeeding term ; but an entry was irregularly made in Michaelmas, 1842, and final judgment signed in the April following ; the court stayed proceedings subsequently taken on the recognizance of bail, and ordered an cxo7iere- tiir to be entered on the bail piece, without costs. Mul- dooH V. Bever'uige, 2 Kerr 532. S— Proceedings stayed by defendant. Where the defendant obtained a stay of proceedings until security for costs was given, after sufficient time had elapsed, and no further proceedings in the cause taken by the plaintiff, the court ordered an exoneretur to be entered on the bail piece. Hill v. Rind, Ber. 281. 6-lVot g:iving; security for cosis after stay of pro- ceedings. Where the defendant in Hilary term, 1854 had obtained an order to stay proceedings until security for costs was given, and the plaintiff had not given the security, the Court discharged the bail in Michaelmas term, 1855. Ratch- ford V. Morris, 3 All. 246. t—No ca. sa. against principle. When no ca. sa. against the principal is found on file in the clerk's office, proceedings against the bail will be set aside. Menitt v. Lindsay, Hil. T. 1828. §-Affidavit not filed in time—Entry docket. It is no ground for setting aside pr*. eedings against bail, that the writ and affidavit to hold to bail have not been ^M 192 BAIL. filed within the time prescribed by rule of Court, provided the entry docket has been duly filed. Gilmourw. Simpson, Mich. T. 1861. d— Variance— Affidavit— Declaration. The cause of action stated in an affidavit to hold to bail, was the non-delivery of goods by the defendant as master of a vessel, according to a bill of lading. The con- tract set out in the declaration upon the bill of lading con- taineJ an exception of " the damages of the seas and break- age." Held, That there was a material variance between the declaration and affidavit, and that the bail were dis- charged. Holdcrncss v. McFarlane, 3 All. 152. Bankrupt— Right to liave bsiil bond cancelled See Bankrupt 5. 10— Affidavit to hold to bail— Filing;— Time— Vl^aiver. It is in general sufficient that affidavits to hold to bail be filed within thirty days after the term in which the writ is returnable, and as the defendant cannot object to the want of the affidavit being on file until he has entered special bail, such entry is not a waiver of the omission to file the affidavit. But pleading to the action after a term has intervened is a waiver, as the defendant might have searched the office and informed himself of the irregularity. If a defendant, being aware that the plaintiff has not filed hi's entry docket or declaration in the cause, appears at the trial and defends the action, he 'hereby waives the previous irregularity in the plaintiff's proceedings. Read V. McLellan, 1 All. 3. 11— Filing: affidavit. The affidavit to hold to bail should be filed within the time limited for entering the cause, and unless it is found on file at the expiration of that period, the defendant is entitled to be discharged on filing common bail, unless the neglect to file it is most satisfactorily accounted for. Palmer v. Densmore, 2 Pug. 160, BAIL. 193 12— No Statement of indemnity. On application to set aside proceedings for irregularity it is not necessary to state that the bail are not indem- nified, lb. 13— Doclaration— liVrong entitling of. An amendment of the declaration by entitling it specially if the last day of the term generally, where there is no vari- ance in the cause of action, does not discharge the bail, the entitling of the declaration being only a fiction. Cotter V. Browncil, 1 Pug. 356. 14— Applieation— L.atcncss in applyin;^: Tor exonerctur. It is not too late after being sued on their recognizance, for bail to apply to enter an exonerctur on the ground of a defect in the affidavit of debt. Lyons v. Ellison, 5 All. 367. Action by bail— Declaration «lisclosing no cause of Action— Return ot constable. See Pleading I. 70. Toivers v. Stephenson. 13— Writ— Affidavit— Irregularities in. The affidavit to hold to bail was objected to on the grounds, 1st. That it was not entitled in the court though sworn before a commissioner. 2nd. It stated defendant's indebtedness, both for goods sold and delivered, and in same amount for account sta ted, without stating positively it was the same debt. 3rd. That deponent was illiterate and there uas no certificate of the affidavit having been read over. Edd, That even if any irregularity in the affidavit or writ would be a ground for relieving bail (which ^/as not ad- mitted,) the objections taken to this affidavit were not suf- ticient. Cotter v. Brownell, 1 Pug. 366. 16— Principal having means to pay debt—Leaving limits— Knowledge of bail. The fact of the principal having means to pay the debt, and that the bail knew he had gone off the limits and did not communicate the fact to the plaintiff or his attorney, is 1 i i i \ I 194 BAIL. no ground for opposing an application by the bail for re- lief — there is no duty on bail to do this. Merrit, Assigyiee, d'c, V. Clancy et al 2 Pug. 476. 17— Delay— Not 8:iving particulars — Indemnity— Bail not required to neg^ative. "Where particulars of plaintiff's claim were demanded on October 13, 1874, and were not delivered until the 18th January, 1875, and no excuse was given for the delay, ex- cept forgetfulness of the attorney, the court held the bail were entitled to be discharged. It is not necessary for bail, in an application for relief on the ground of plaintiff's delay, to negative being indem- nified. Gray v. Vesey, 3 Pug. 349. B Relief — Application for. 18— Action on Recognizance— Render— Notice. Where an action was brought on a recognizance of bail after render of the principal, but before notice thereof to the plaintiff, the Court refused to stay the proceedings ex- cept on payment of costs. Duf\. Hunter, 1 Kerr 499. 19— Reference— Pleading. Bail cannot plead to an action on the recognizance, a reference of the original suit to arbitration. They should apply to the Court to have an exoncretur entered on the bail piece. Sharp v. Connell, 3 Kerr 125. 20— Special contract— Common affidavit— Verdict. Where a party is held to bail on the common affidavit for goods sold, and th^ declaration is framed with counts to recover a demand arising out of a special contract, to- gether with a common count for goods sold ; and on the trial a general verdict is given for the plaintiff on evidence however which only referred to the special contract. JlcUt That the bail were entitled to have an exoncretur entered on the bail piece, on motion, without first applying to have the verdict limited to the special counts, and that the affidavit did not include the demand arising out of the special con- tract and sounding in damages. Ford v. Ladcl, 3 Kerr 287. ¥t BAIL. 195 21— Cause not tried— Agreement te give Confession. Proceedings against bail were set aside on payment of costs, where notice of trial had been given for the sittings after Trinity term, 1858, but the cause was not tried in consequence of the defendants' agreement to give a confes- sion, and the confession, though dated 1st June, 1858, was not given till October, 1859, when judgment was signed, Boymond v. McMackin, 4 All. 524. 22— llisnonicr ot'Plaintiflf— Delay in amending. Where the defendant's attorney in entering special bail mistook the plaintiff's name, and was informed of the error by the plaintiff's attorney, but died soon after without having amended it, and the defendant employed another attorney, who made no application to amend the proceed- ings until it was too late to try the cause in the county where the venue was laid; the Court refused to set aside the proceedings on the bail bond and let the defendant in to defend, though the plaintiff's name was mis-stated in the entry docket; the defendant not having been misled thereby. Riorden v. Dunn, 3 All. 124. 23— Delay— Excuse. Where an action was brought in August, 1853, and notice of trial given for the January circuit following, which was countermanded, and no further step taken by the plaintiff: the Court refused in Trinity term, 1855, to relieve the bail on the ground of delay ; the plaintiff's attorney stating that the delay had been caused by the difficulty of obtaining evidence in a foreign country, an.l that he in- tended to proceed to trial at the next Circuit. Jarvis v. Hardy, 3 All. 242, 24— Condition to pay costs not (uifilled. In an action brought on a limit bond against the prin- cipal and sureties for an escape, it appeared that the plain- tilTlet tho defendant go, upon the understanding that the defendant should pay all the costs, the Court refused relief to the sureties under 6 Wm. IV., cap. 41, sec. 13, it not ap- ptaring that all costs had been paid. Robertson, assignee of Sheriff y. Cinrie ct al, Ber. 190. I ' 'I' 196 BAIL. 25— Attachment for costn in Equity T^iniit Bond given by prisoner— Application for relief. When an action is brought in the Supreme Court on a limit bond given by a prisoner in custody on an attach- ment for costs in Equity, application for relief by the sure- ties must be made to the Supreme Court. Bartlelt v. Glm- ijow, nil. T. 1871. 26— Sureties on limit bond— Order for ren^' him to gaol onder the Act 13 Vic. cap. 31, such relief will only be granted on condition of his being rendered to the gaol whence he escaped. Peters V. Perky, 2 All. 585. 33 — Kail bond— Action — Insolvency of principal Alii davit. An application by bail under the 1 Kevised Stat. cap. 124, to stay proceedings in an action on a limit bond, on account of the insolvency of the principal, was refused ; it appearing that the principal had property sufiScient to pay the debt. Bradford v. Fcnton, 3 All. 07. The affidavit to support such an application should state that it is made at the expense of the bail and without collusion with the principal. Ibid. QiKcre, Whether, after application for relief, the bail can defend on the merit ? See Rippey v. Austbiy 4 All. 77. 33 — Rccoirnixance — Pleadin^j^ to — Canse referred, !iiliould apply for an exoncretur. See Practise V. 22. 31— Bail for principal debtor— Application by other bail for relief— Same subject matter of suit — Both bail fixed— Payment of «1ebt by one. A., the maker, and B. the accommodation endorser of a note, were held to bail, and the bail in both cases fixed. B's bail settled the judgment on the understanding with the plaintifi''3 attorney that he should continue the pro- ceedings against A's bail for their (B's bail) benefit. On application by A's bail for relief on the ground that the debt had been paid — Held, That they, being bail for the principal debtor, were not entitled to relief at the expense of B's bail, especially as it did not appear that they were not indemnified. McFearon v. Callaghan, 5 All. 588. 198 BAIL. tin — Escape— JVo dniiingcs— ]Vo return of principal. Matters which merely tend to shew that the plaintiff has sustained no damage by the escape of a debtor from the limits, do not afford a ground for summary relief to his sureties under the Act 10 and 11 Geo. IV., cap. 30. The principal should have returned within the limits, or be pre- vented from doing so by inevitable accident before such au application will be granted. Bonnell v. Ackcrman, Mich. T. 1834. 36— Equitalilo ground«oiit from the Province— Absence before order nia«lc- Appliiration for relief. B. and F. became bail to the action for S. at the suit of A. At the time of signing judgment against S. he was absent from the Province and remained away for some time. During his absence an order was made allowing him to be absent until a time therein limited. B. and F. being sued for the breach of the recognizance prior to the making of the order, applied for relief under the Consoli- dated Statutes, chapter 37, sec. 81, and chapter 38, sec. 5. B. being sick at the time of the application, did not make BAIL. 199 any affidavit. From the affidavits of F. and S., who had returned to the Province, it appeared that neither B. nor S. was indemnified. A. in his affidavit in answer, charged B. and F. with heing confederate with S. in preventing him (A) from obtaining the fruits of his judgment, and in maintaining the nuisance, to recover damages for which the original action was brought, and alleged that S. had parted with his property shortly before judgment against him. These charges were not answered, and nothing was said aR to, at whose expense the application was made. S. bad never been rendered in discharge of his bail. J/cZJ, by Weldon and Fisher, J. J., that the Court had power to grant the relief asked for, and that the application of B. and F. ought to be granted upon their paying A. his costs up to that time and upon rendering the defendant into cus- tody. Hdd, by Wetmore and Duff, J. J., without expressing any o^jinion as to whether, under the statute, the Court could grant the relief asked for, that the defendants had not made out a case entitling them to the exercise of the equitable jurisdiction of the Court, and that their applica- tion should be refused. Scmhle, — An order of a Judge allowing a defendant who has put in special bail, to be absent from the Province, has no retro-active effect. Byron v. Batson and Flagg, 2 P. ti; B. 396. 3S— Interest on Judgnient against principal not al- lowed against baiS. Bail are only liable for the sum sworn to and costs, and the Court will not allow interest on the judgment against the principal in an action or other recognizance. Byron V. Flagg, 2 P & B. 396. C. Limit Bond — Sureties. 39-Rclicf-€onditions. Where an action had been commenced on a limit bond, the Court relieved the surety on his rendering the principal m 200 BAIL. and paying the costs of the action on the Hmit bond, to- gether with the costs of the application, within a period lixed by the Court. Mcintosh v. Allen, 3 Kerr 362. 40— Insiifllcicncy of aflldavit on application— Aiij^wor. In application for relief by the sureties in a limit bond, under the 1 Eev. Stat. cap. 124, the affidavit neither stated, when or at whose instance they became bail ; what pro- perty the principal had at the time, whether the bond was given on arrest upon mesne or final process or render ; or when the principal escaped. The affidavit in answer al- leged that the principal had stated that he would have paid the debt if the defendants had not become his bail; that he had put property into the hands of L. to secure the person who might become bail ; that the defendants be- came bail at the request of L. without his knowledge, and that L. had become insolvent and transferred the property to one of the bail. Held, That the sureties were not en- titled to relief. Smith v. Leary, 4 All. 162. 41— Defendant supersedablc before escape. The sureties on a limit bond entered into for a defend- ant in custody on mesne process, are entitled to be dis- charged, if the defendant before his escape had become supersedable. Gordon v. French, 2 Kerr 610. 42— Sureties not affected. An agreement between the parties that no advantage should be taken of the omission to charge in execution, cannot affect the sureties, unless made with their privity. Ihid. See Bond (Limit Bond.). D Bender. 43— Fictitious name. If two names appear on the bail piece as bail, it is sufficient for the purpose of render, though one of them is a fictitious person. Wetmore v. Elliot, 1 All. 720. BAIL BOND. 201 (jiiifir, Whotlior, in such a case, tlu; plaintiff mi'j;ht ex- cept to thu bail? fl'id. 1 1 Bail may ho ontoi'L'tl by ouo person only for the i)uri)Hi5ii of rendering the priuci[)al. Diiiiciin v. r>'iriu's. II. 1//. 17-2. |.) \(tioii on Limit Bond— KoikUm* anci't Thu render of tho principal after tin action brought for an escape on a limit bond, is not a ground for relieving the sureties. Sec Bond 8. Hi- \»iu'v of r<'ud«M' -Oini>i«ioii— Waivoi*. (Jiueri'. Whether a notice of render which omits to state tho lodgment of tho order for render with the gaoler, is sufficient ? Such an objection to a notice is waived by tLe plaintiff opposing the defendant's discharge out of custody under tho Insolvent Conlined Debtors' Act, and Ity iliscontinviing and receiving tlio costs of an action brought agiiiust the bail before render. J'iclcHon v. Black, 4 All. 70. A notice of render signed by the defendant's attoi'ne_\- is sufficient even after judgment, if he continue to act as attorney. Ihid. 17— Wlicii may !>«' iiia4l<\ Bail to the Sheriff may render the defendant l)efore the ' xpiration of the time for putting in special l)ail. Jmivs .-. ir//(7.', ().(//. 431. l§-Ex«'t'i>tioii— Ciitry. Exception to bail not necessary to bo entered in Judge's i)ook. Sir Porter v. Biirn>i, 1 .4//. 106. l9-Esca|K'— Oi'tlor foi- i*c'U«loi* aftor. An order to render may be made after an escape fro ii tie limits, and proceedings on the bond against the sureti s !)!• the escape will be stayed on payment of cost3. M - Mhin x.lMrrjen, 6 All. 313. BAIL (C0.1L1I0.\.) Sa: Practice. BAIL BOM>. ^o: Bond B. 13 202 BAILEE. BAILEE. 1— Pawii<><> iiiny iiinliitnlii replevin for pawned Kood» wronKfully taken. A pawnee may maintalD replevin against the pawnor for a wrongful taking of the goods pledged. Proof of such pawning is sufficient to enable the pawnee to recover in au issue joined upon the ordinary plea of property against the general owner. Gibson v. Boyd, 1 Ken 150. S— €on%'eyniiec to Trustees— BetnlnlnK part of goods. Defendant conveyed all his property to trustees for the benefit of his creditors — certain goods of which the trustees had no knowledge, remained in his possession. //(■/(/, That the general property in the goods passed to the trus- tees, and that defendant could not be considered as holding the goods as their bailee. Mcintosh v. Hastings, 6 /I//. 234, lTIi«»(eaMance— M'ant or privity— Losm of scow. The defendant was master of the " Francis Herbert," which had been chaiipred by C. McK. & Co., to carry a load of deals fiom St. John to Dublin. C. McK. & Co. purchased the deals from j. & B. and employed them to deliver the same alongside the vessel. C. McK. & Co. paid J. & B. for the scowage and *,hen charged the vessel with the amount so paid |for scowage. J. «& B. borrowed a scow from the plaintiffs which they left loaded with deals alongside the "Francis Herbert," and fastened to her as directed by the mate. The next morning the scow was missing. The plaintiffs did not offer any evidence to shew how the scow was lost, and there was no evidence of mis- feasance on the part of the defendant. Held, That the relation of bailor and bailee did not exist as between tlie plaintiff and defendant, and in the absence of any evidence of misfeasance on the part of the defendant, he was not liable to the plaintiff's for the loss of the scow. Wetmorc (t al V. McKenzie, 1 P. & B. 557. BAILIFF. Special— Appointment nt Request— Liability ol Sheriff See Sheriff 21. BAILMENT. 203 «$l»i>i-liil biiiliir ol plaiiillir nllowliig defviidaiit to vo ui liirtftN cauiiot rctuko on a new ca. sa. See E- ecution II. 6. BAILITIEKT. l-Arllou by Bailor for iieH^llneiicc to horse. The Court refused to set aside a verdict given tor tiie plaintitV iu an action l>y the bailor against the bailee of a hoi'st for negligence, although the jury were not able to agree whether the bailment was a commodatum or nmtaumy the injury being such as to make the defendant liable in either case. Ilainsbury v. Hues, 2 A'c/r 179. 'i-lllriiigliorsc— Death— Liability. A person hiring a horse to perform a journey, is not hable for the value of the horse, if ne dies on the road with- out the fault of the hirer. Qutere, V/hether, in such case, the owner of the horse is entitled to recover the hire on the (luantam meruit, for the time the defendant used the hoi'se ? Dickie v. Campbell, C. Ms. 44. S-iiooiU deposited in Warehouse— f§>|»ecial instruc- tions. Phxintiti' deposited goods in defendant's warehouse (which was also a bonding warehouse,) with directions not to ueliver thein except to his order. F., for whom the goods were intended, but to whom the defendant was di- I'tcted not to deliver them without payment, paid the duty , at the custom house, and obtained a permit to release the goods from the public warehouse, and then got possession of them from thu defendant's clerk. Held, That the de- Iftndautwas liable to the plaintiff for the goods. Gunnison [v. Thomas, East. T. 1861. BANK. l-Aiiilioiity to accept bills— Declarations directory. An incorporated Banking Company has authority to ^ccept bills of exchange as a necessary incident to the ftansaction of its business, and such acceptance need not be under the Corporate Seal. A bill of exchange was 204 BANK. drawn upon a bank payable in three equal instalmfnts. When tlu: lirst instalment became duo the holder presented it at the bank ; the cashier paid the tirst instalment and returned the bill to the holder with the following endorse- ment :— " Paid on the within $741.66., 12 August, 18G1. ' Held, An acceptance for the remaining instalments. The 20th section of the Act 4 \Vm. IV. cap. 44, incorporatiii;^ the Central Bank, which declares that every bond, luankbill or other instrument by which the Corporation may be held liable for the payment of money, shall declare in such form as the directors shall presenile, that payment should be made out of the joint funds of the Corporation is diroetorv only, and its non-observance does not render such instru- ment void. Qiuere, — Whether this section applies to any instruments except those issued by the bank? Berton v. Central Biud, 5 All. 493. 2— Cliarter of Incorporation— Directions as to pay- nient —Omission. By the Act incorporating the Central Bank, 4 "Wm. IV, cap. 44, sec. 20, every l)ond, bank bill, or other instrumeu; Ijy which the bank may be liable for the payment of money. shall declare in such form as the directors shall prescribe, j that paymunt shall be made out of tJie joint funds of tlir corporation. Qiucrc, Whether the omission of such decla-i ration would render a contract void ? But, llchl, Tliatj after a part performance of the contract, and receivr property under it, the bank could not set up this objecti ij in answer to a suit for s[)ecific performance of it. I'kh'A V. Centvdl Bank, 5 AU. 472. See Equitj' — same cas<.. 3— Savings bank— Directors— Tennr*' of ollico-l N bility. The Act 6 Geo. IV., cap. 4, relating to Savings Hwla declared that all moneys, etc., belonging to the institutio^ were vested in the trustees for the time being, for tlieii3| and benefit of the institution, and of the respective (kpoJ tors therein. By regulations made under the authority! the Act, the J" a ])residen annually, j chosbu Wi^i-Q I fj'Hied ill oilic having been c. I'iaiiUitf for j] ^H/'-'f, Be: 2ii iiiinkv,' nnlic, ■"^i'e Check l t^iiilnlUics Of , '^■^^' Joint Stc *«f «|>raiirc Of , See Check. '*«w«^^' to hina f '^'^'^' i^>auduien owner for th "-" '•• nc Cent -SV, Cr, "aiuaJ Li ' •«'»'*i».V as c See Lien. m "•'^'«' fi «... an, ^'-''' Arrest. BANK CASHIEIi. ".api-^ulent and eight ,h"t 1,, "'"«' ^""k ^'as vested cl.os«Mvere t>^ trustees unc e/ , '1 " "f '""■^"""-^ «o h"i«i m office after the ev, ,'!, ''""'' "'•■" "'ey eon l'«vi»S been cl,osen in h' nf '"" "' "'« ^■^'"■' "»e tl ers JP'iff for .none, dep'o e "rVr,'' "?" "^'"^ "' '^ *. kl..l,.r.,. •^'•■JointStoeii Company g. ' '^^'t' CijecJv. ■'"l™ud„,e„t;.I,sre„resentation. «e o,v„er,br the pnr lose 1 'T '^ " "'''''>- »^ «'« agent '^" ^nmiual Law IJ. 20. ■^" \^"ichng Up Act 5. '^'<'f Lien. •"efeo l«oin anesf. ^'■''■' Arrest. 206 BANKRUPT. Impeaching certificate for fraud— Caanot be sliewn on trial* See Evidence III., 18. Jndgment of non-suit, alttaough plaintiff* a bankrupt. See Judgment as in case of non-suit II. 11. Plaintiff executing writ — IVo knoivledge of bank* rupty— Trespass. See Sheriff 8. Rent Accruing due after issue of flat. See Harding v. Baker, 1 All. 576. Interest in case vesting in assignee. Ihid. Provisional assignee— Right to sue. See Beardslcy v. Stephenson, 1 All. 631. 1— Claim provable under flat— Liquidated damages. The defendant conveyed land to A., with a covenant for title, which was broken by the existence of a prior mort- gage, which A. was obliged to pay. Held, That the amount so paid was liquidated damages, and was a claim provable under a fiat in bankruptcy afterwards granted against the defendant, and was discharged by his certificate under the Bankrupt Act, 5 Vic. cap. 43. Cntininr/ham v. Scoidbu: i All. 385. 2— Fiat— Proof. A fiat in bankruptcy under the Acts of Assembly 5 Vic. cap. 43, and 6 Vic. cap. 4, may be proved by a certitied copy thereof without production of the Eoyal Gazette, ex- cept where title is to be shewn in the assignee. Ibid. 3— Privilege from arrest- Pleading certiflcate. A certificate under the present English Bankrupt Acts, , is a discharge of debt incurred in this Province, and may be pleaded in the Provincial courts, but Seinbk, The certi- ficate cannot be pleaded generally, as in England, but the proceedings on which it is founded must be set out. iSa L. E., 6 C. P. 228, Ellis v. McHcni-y.) Jonctt v. Lock wood, 2 Kerr 674. 3-Bail bond BAEEISTEE. 207 4 Where defendant was arrested for a debt due on a bond, and it appeared that after the debt was contracted he had become a bankrupt, and received his discharge under the " Bankruptcy (Scotland) Act of 1856," the Court ordered his discharge on his entering a common appear- ance. Gilberts. McLean, 2 Ha7i. 213. 3-Bail bond given— Right to have cancelled. A person, resident in this Province, who has been de- clared a bankrupt in England, under the English Bank- ruptcy Acts, and who has afterwards been arrested here for a debt incurred in this Province, is not entitled to have the bail bond which he has entered into upon such arrest, given up and cancelled upon atB davit that he was on his way to England to surrender himself to the commissioners at a day appointed by them when the arrest took place. Qucere, As to the liability of the defendant to arrest, and the mode of discharge ? The Court is unwilling +,o decide questions of such importance upon a summary application, particularly where the defendant is not in confinement. Mayor, d-c, St. John v. Lockivood, 2 Kerr 9. 6-Disciiargc from Custody. A defendant who was in custody on execution, at the suit of the plaintiff, at the time of the Bankruptcy Act, 5 ^ic. cap. 43, coming into operation, and who has since been declared a bankrupt under the Act, and duly sur- rendered, is entitled to his discharge from custody, under the Uth section. Reynolds v. Hanford, 2 Kerr 114. BARON AND FEIfUflE. See Husband and Wife. i : I: BARRISTER. See Attorney. BARRISTER'S DEED. See Deed 31. 41 208 BASTARDY. BARKISI'KR'S REPORT. €oiiiiiii«. roport witiiout ^^aitiiij^ for— Objection— IVo exccp- tion$4 tiled. Where the Court directed commissioners to divide certain lands, and referred the matter to a barrister to take an account of the rents and profits of the lands, it was held that the barrister might make his re^^ort without waiting for the commissioners to divide the laud, and that a change in the commissioners could not in auj' way efiVet the questions referred to him. Where the whole matter appears upon the face of the report, it may be open to object to a barrister's report being confirmed, although no exceptions have been filed to it. Fniscr v. Dciritt, 1 Pufi. 738. BASTARDY. t— StiM-born child— Or«el— Fi-aiul. Sec Shipping Law 6. Key:i««li'y of, iM'forc an a**«ari< to itK deli- very { Sec Insolvent Act 11. Piiiislci/ v. IIcliciifioii of net. Tlio Act ;37 Vic. Cap. 1-1, '.Consol. Stat. Cap. 7-"5,l which required tlio tiling of bills of sale made after the passing of the Act, did not come into force until the 1st of October, 1874, though it was passed on tlie 8th April [)recediug. Held, That after it came into force, its provision then npplied to all bills of sale made after the 8tli April. Ritrhic ct (d v. SheriJ^, 1 P. iO B, u9. I— (-'M'liliod <'0|>y— Evidi'iK'c. Certified copy of bill of sale not admissible in evidence luider 21 Vic. Cap. 3, sec. 7, (Consol. Stat. Cap. IG, sue. 7) without proof of the execution of the original. Lnvjoy v. McDinniiiil ctal, 1 P. tO B. 275. BILLS Ai\l> PKO.HISSOKV IVOTES. I. Eequisites — Foroi — Operation. II. Parties — Rights — Liability — AccErTANCE. III. PitESENTMENT 33eMA\D. IV. Notice of Dishonor. V. Defen'ce. VI. Miscellaneous. L Ebquisites — Form — Operation. l-Coiiliiiiiiii^' So<*urity— Tiiiio of payment not sixM'i- liiMi— DciiiaiKl. AYhero no time of payment is specified in a promissory note, it is payable on demand ; and where such note is on interest, it does not become over-due by mere lapse of time without demand of payment having been actually made. Thome v. Scovil, 2 Kt'rr 557. 'i— Blank Payee. A promissory note payable to or order, cannot Hi recovered by the person to whom it was given, either as I'ayee or bearer, without inserting his name in the blank as payee. Mutual Safety Insurance Conqmmj v. Porter, 2 All. m. i\\ ' I i : ■] 1 1 ill ! I i I 214 BILLS AND PROMISSORY NOTES. Any bona fide holder of such a note may insert bis name in the blank ad payee. Ibid. 3— Date coiitcniporancous with debt— Presuiiiptioii. There is no presumption that the date of a promissory note is contemporaneous with the debt which forms the consideration ; therefore a note given for liquor after the passing of the Act 15 Vic. Cap. 51, was ueld (R. Parker, J., dissenticnte,) not to be void without proof that the sale took place after the passing of the Act. McCann v. Be illy, 3 All. 154. 4— Current Rate of Exchange. A writing whereby the defendant promised to pay to his own order £42 3s. 9d, with current rate of exchange on Boston, is not a promissory note, either under the statute 3 and 4 Anne, Cap. 9, or the 1 Rev. Stat. Cap. 116. Nash V. Gihbo7i, 4 All. 479. Semble, That even if a declaration on such a note could be sustained, it should have averred what the rate of ex- change was, and what Boston was intended. Ibid. 5— Payable to maker's order. A note payable to the maker's own order is not a pro- missory note within the statute of Anne, or the 1 Rev. St.u. Cap. 116 ; but when such a note is endorsed in blank by the maker, it becomes a note payable to bearer. Ennis v. Hastings, 4 All. 482. It is no ground for motion in arrest of judgment that such an instrument has been declared on as a promissory note, and as having been endorsed to the plaintiff. Ibid. 6— Sum certain— Lex IVIercatoria. A bill of exchange must be drawn for payment of a sum certain ; therefore an instrument drawn by A. upon B., requesting him to pay to the order of A., five months after date, $400, with current rate of exchange on New York, is not a bill of exchange. Cazet v. Kirk, 4 All. 543. A custom between merchants in this Province and the United States, to draw bills of exchange in this form, is not part of the lex mercatoria. Cazet v. Kirk, 4 All. 543. BILLS AND PROMISSORY NOTES. 215 f--i\otc payable to A. or his heirs. Bight to recover vested in personal representatives. Scmhlc, Wliether the instrument is a promissory note. Set Doulc Adininiatrator, dc, v. liobinaon, 1 Han. 279. §-Principal and surety— Liability as makers- -Property as security misapplied by surety. One of the defendants in a joint and several note, signed it as a surety for the other ; the principal after- wards put property in the plaintiff's hands to sell and pay the note, but lie applied the proceeds to the payment of another debt due to him from the principal. Held, That this was no defence at law, both the makers of the note being principals. Moriimn v. Kyle, East. T. 1872. !)-.\o absolute transfer— Equities. A note payable on demand was endorsed to the plaintiff as security for a liability he had incurred for the payee ; tlie maker afterwards paid the amount of the note to the payee. Held, That the note not having been absolutely transferred to the plaintiff, he stood in the same position as the payee, and could not recover. Estahrooks v. Mc- Kmzlc, mi T. 1827. IO-.\otc held by creoitor takinij^ proceedings under iii<>>ulvent Debtors Act— Riglit not divested. The right to a promissory note held by a person who takes proceedings under the Insolvent Debtors Act, (21 Vic. call. 17) is not divested by the publication of the notice calling a meeting of creditors, and he may afterwards transfer the note, — neither is his right divested by a com- position with his creditors under the Act. Campho.U v. (riioi'/t 5 ^ii420. ll-Staiiips. Where no stamps are affixed to a promissory note at tlie time it is given, and no authority given to affix them, and only stamps of a single duty were upon it when pro- duced at the trial, the note is void under the Statute of Canada. 31 Vic. cap. 9. Travis v. Glazier, 2 Ha7i. 215. . 1 ?if i !:1 21G BILLS AND i'EOMISSOUY NOTES. I'i— <'ii«li oi' »immI*« \ot«' l*ii>iil»l<' ill. A note ])ayal)lu in ciihIi or ^oodscomos within tlio mean- ing ol' thu Act 1 Vic. cap. 4. Bm-nham v. U'-f^/s, 2 Ken- 377. l;i— K|>4'cin<' iirtirlo^t— l\otc for •■iiiin pnyahir in. A noto lor the paymoMt ol" a curtain sum in specific articles, becomes a money debt alter the time for dehveriu;; the articles has elajjst'cl ; and a set-oli' is admissiltlu in an action upon it, under tiie Act 1 Vic. cap. 4. iStcvcrs v. Ilnppa; 1 All. 894. (Jiuerv, "Whether the plain.,J'f could declare lor special damages for not delivering the articles ? If he could, the consideration on which the contract was made should bt stated. Ih'ul. Il-llsill 4'si*«li- Half 4>ioo4ls. A writing addressed to the defendant requesting him to pay the plaintiff 1*25, " half cash and half goods," is not a bill of exchange, nor ean the plaintilf (after acceptance and payment of l'l*3 10s. in cash) recover the balance as ou an account statid. MvlrUh' \. Beddl, Ilil. T. 1882. |.>— roi'oisH <'iiiT<'ii<'y. A note made in this province for a certain nuiiibu of dollars "payable in U. States currency" is a pro- missory note. Fisher J. diihitdnfe.) Saint Sti^plien Bhinci liailiray Co. v. ]!h(cL; 2 fLoi. 139. 10- Donatio— ilIoi'ti«> <'aii««a. A man in expectation of death endorsed a negotiaUi note specially to his wife and delivered it to her. ILM, That the wife acquired no riglit by the endorsement ami that it could not operate as a doiKifio mortis caaS't, the note not being transferable by delivery only. Sec M'ddoii v, U'ddon, 2 All. 590. 17 — .\Ot4M>ll «i('liiail«i. SciiMc — A note payable ou demand is, after demand ot payment and refusal, to be treated as over-due ; and a note whereof payment has actually been made when demanded. cannot stand on a better footing. See Donga n v. Small, i Kerr 89. BILLS ANT) PIlO^riSSOllY NOTES. •217 IN .Vli'iiioriiiidiiiii ;il foot of'iiolr. A nu'inoriuuluin put by an ondorsci" at the foot of a pnimifisory note without the maker's authority, (lechiriug it to be payable at a particular phico, does not afTcct the maker's Hability, it forniini^ no part of his contract. CiiHiird V. '/'(CfT, 2 Kerr SOij. 10-Afli\iiitf Ktaiii|»M. DtlVndaut was api)li('(l to by W. while travelling on tlie cars between St. John and l''redericton to insure liis life in a Conipany, of which W. was actiug as sul)-agi nt. i)ofoii(lant signed an ai)plication and gave to W. his note lor the i)r(iniinn, drawn in favor of the gtnieral agent of the Conipiniy, l)ut, having no stanii)s at tlu' time, he autiiorized W. to nftix tliem, whicli, the latter stated in evidence, in an action brought on the note, he did immediately after, either in St. John or Fredericton. On an ai)i)eal from the deci- sion of the County Court, where the plaintiff recovered in !>n action brought on the note, the Judge's re>Uu'n did not (lisolose wlicther or not there was any evidence to shew tlipt the stamp w'as put on the same day the note was given. /W,/, per Allen, C. J., and Fisher and Duff J. J., Tiiat tlii'V must assume that the stamp lun'ported to have b'tn cancelled on the same day the note bore date, aiitl that tbere was, therefore, jir'nii'i jarif evidence that it was stamped on that day which would be suf- liciint; but, per Weldon and Wetmore, J. J., That, as the note was issued when it was given to \V., the latter oouhl not attmwards render it valid by aflixing the stamp, Ml' at all events, the plaintiff was bound to shew clearly that it had been atlixed on the same day. Wriijlit v. Mur- iny,'i Pug. GBG. 'iO-Kno\vl«'dfft' oluaiit of Stamps— Atloi'ii«'y affixing:. On the trial of an action by endorsee against maker of a promissory note, it appeared on cross-examination of defendant that when the note was made, the parties had no stamps, and the maker gave the payee money to purchase the necessary stamps, and authorized him 14 i 1 1. 218 JilLLS AND PROMISSORY NOTES. to lit'lix them to the note. He did not do so until some montlis afterwards, when a son of the i-ayut alHxed stamps of the amount that should have been aliixed when the note was given. Subsequently the note was transferred to plaintiff for value. At this time it appeared to have been pro[)erly stamped, but no evidence was gi\('n to show whether ^r not plaintiff, who was not present at tlic trial, had any knowledge oi the notes not having l)een stamped when inade. The presidhig Judge allowed the attorney of the plniii- tiff to affix double duty stamps, and nerivi'd tiit' noti' ii. evidence. On motion for a new trial, Jlcid, per AVchi u. Fisher, and Wetmore, J. J., That as the Judge was satis- fied from all the evidence that neither plaintiff or his attorney had any luiowledge of the want of stamps until the fact was disclosed on the trial, he was right under sec. 1"2 of the Act '61 \'ic. cap. 47, in allowing the double duty to be paid, and that the attorney had implied authority to affix the stamps, but per Allen C. J., and l)ufi' J., That it having been shown that the notes were not stamped when made, the onus was cast on the plaintiff of proving clearly, by his own evidence, that he first knew of the defect on tlu trial : and also that an attorney cannot, without special instructions from his client, restore validity to a note by affixing double duty stamps. Leonard v. LoaJiay ct al o Pii'i. (U)2. *il — l>oiii»le duly— Aliixiii^ •»laiii|»« - Psii'iy— I»ayi-— Ori^^iiial pai-ty. The drawer of a bill of exchange is as much an origiuai party as tiie payee of a note, and cannot give validity to an unstamped instrument l)y i>aying double' duty. Kcnni'k V. Aihtins, 2 Vii;/. 102. BILLS AXJ) LT.OMISSOilY xXOTES. 219 'J^— Oiiii:^Hioii to «>ttsiiii|» o|»tsin<>(>. B., beinj^ a creditor of A., drew upon him a written order, it'ijuesting him to pay K. " the amount of my account fur- nishi'tl," and delivered it to K. On presentment of the ork'r to A., he wrote on "t, " Correct, for say $75" — sign- ing the initials of his name. ll<'l(l, Tliat this instrument was u )t a bill ol exchange, n )r could K. maintain an action against A. on an account stated. Kennedy v. Adnm, 2 ViKj. 162. 'J-)— A^:i'('4>iiieiit to |>iiy |>lujiitili' (oi' lliird party. Plaiutitf sued upon the following instrument : " 12 moutlis from the 2Gth June, 187B, I., (defendant,) will pay J. C, (^ulaintiff,) $Ul) for D. P., or otherwise settle the sum of S'.iU for him on a note that he says he gave J. C. for !5liiU." //(/(/, That this was nut a promissory note, pay- alik' to plaintili", neither even an agreement with plaintiff, liut with 1). P. Cochrane v. Cail, 8 Pu[i. 224. 'J(i <>ri' ii|M>ii tliii'^otial»l4; note— l!^ii<4'iii«'iit on l»a<-k ol'. 1. being desirous of borrowing a sum of money from plaintili, proposed defer -iant as security, and said he would -ivi iilaintiff their joint note for the amount. Going to iit-knilant's residence, the latter wrjte a note in form fol- "\ving: " Six mouths after date, for value received, I w 1 220 BILLS AND PllOMISSOEY NOTES. promise to pay (plaintiff) forty dollars. Y. signed at the bottom of his note, and defendant wrote his name across the back, stating at the same time that the note was " a joint note, or better than a joint note," and handed it to the i)laintiff. Jfeld, That the defendant was lialjle as maker, the circumstances clearly shewing he intended him- self to be liable as such. Piefs\. Ibdl, 2 P. d; IL 3-1. II. PaKTIES ElCiHTS LlABILI'JY— Iloldor — IVo 1>eiiefi«'inl iiitoroMt l»<>iii'<>r. Acceptance. — ]\'ot<' |»iiynl>i<> to Iloldtn" may maintain action although he has no bene- ficial interi'st in note, and holds it merely as agent. See AUisoii V. Central Bank, 4 All. 270. 2— Holder. Prima facie a person who has the possession of a note endorsed in blank is the legal holder. Per liitchie, .1. S'lc Howard v. Godard, -I All. 452. 3 — Endorsciiieut contrary to nKreeiiieiit — F:i.^iiiciif. Defendant gave a negotiable note to G., who agreed to hold it as security for a lial)ility he had incurred for the defendant ; G., in violation of this agreement, endorsed and transferred the note to C, in order to raise money for G.'s benefit ; C. got the note discounted at a bank, and was obliged to take it up at maturity, and two years afterwards, he transferred it to the piaintiii. G. never paid the money for the defendant, which formed the consideration for the note. Held, That unless C. knew the circumstances under which G. got the note, or was implicated in G.'s fraud, he would have hod a right, on taking up the note from the bank, to recover the amount from the defendant ; and that the plaintitf claimir.g under C, had the same rights. Hastings v. (y^fahuney, 4 All. 305. Semhle, That if C. had taken up the note with G,'3 money, it would have been extinguished, and he coiUd rot have recovered on it. Ibid. BILLS AND PROMISSOEY NOTES. 221 4— Eiidor$<>cr— Original liability— Participation in pay- ments* H. gave the defendant a promissory note for the price of goods purchased from him, which note the plaintiff dis- counted for the defendant, who received the proceeds ; when the note became due, it was renewed by H., and the new note endorsed by the defendant and held by the plahitiff. IfchJ, That this was onl}' an extension of the time for pay- ment, and did not alter the original liability of the defend- ant as endorser. The Commercial Bank v. Willistoii and nnotha; 1 Han. 283. Before the renewal of the note, H., who was largely in- clel)te(l to the plaintiff, as the drawer of a number of other notes, paid the plaintiff a sum of money without making any appropriation of it ; he soon afterwards asked the plain- til!' to give him credit for it, for the benefit of his endorsers ; but the evidence left it uncertain whether it was for the benefit of his accommodation endorsers only, or for his en- dorsers generally, and a verdict having been given for the plaintiff for the amount of the note, without any deduction on account of the money paid by H., a new trial was granted, in order to ascertain wlietlier the endorsers gener- ally were entitled to participate in the payment by H. It being the defendant's duty to establish this fact, the new trial was granted on payment of costs. Ibid. O-lllfSlllt. A person after he cornea of age is liable in assumpsit upon a note of hand made by him when an infant, it aiter coming of age he promise to pay it. Fislier v. Jetcett, et nl Ba: 35. <) itctiriii^ of oriKfiual note— Fraudulent substitution -Hi^lits of holder. Plaintiff was managing agent of the bank in which the defendant had discounted an endorsed note drawn by him- self. When the note fell due, the plaintiff agreed to renew it on payment of a certain sum, and getting another en- dorsed note for the difference. Defendant brought a renewal 222 BILLS AND PEOMISSORY NOTES. note to the plaintiff — who (believing it to be duly endoi-sed) gave up the original note ; but, soon afterwards discovering that tlie renewal note was not endorsed, he called on the de- fendant to rectify the error, which he refused to do. Hell, That the original note having been obtained by the defend- ant fraudulently, it was still constructively in the plaintiff's possession, and he could sue thefeon in his own name as holder. Grovrr v. Watson, Ci All. 384. 7 — Bona (i«lo lioldor — Failiiro oi' <'4»ii<>>iratioii be- t\«-ii ori;;iiial prrtio^. The defendant made a note in favour of S. for the amount of a bill of exchange. S. failed, and the bill was dishonored. efore the note came due, and before the failure of S., it was deposited by him with a number of other notes with the plaintiffs as collateral security for the payment of certain bills of exchange on which he was liable to the plaintiff's, the agreement being, that if the bills were not paid, the proceeds of the notes were to be applied in payment of the amount, but if the bills were paid, the plaintiff's were to collect the notes and place the amount to the credit of S. The amount of notes deposited by S. with the bank as collateral security never exceeded his indebted- ness, and at the time the note in question was endorsed to the plaintiff's, and when S. failed, there was a consider- able deficiency. Held, That the plaintiff's were J)())ii'atioii— Eqiiitio** a«i< a;;aiii«*t. A. made a promissory note payable to his own order, which he endorsed, and gave to his son-in-law B. as a gift by way of advancement to B's wife. After it was due, !!• transferred it to the plaintiff for valuable consideration. Held, That as the original consideration was not sufficient, it was subject to all the equities in the plaintiff's hands and he could not recover against the executors of A. Tho- mas v. McLeod, 1 Han. 588. BILLS AND PRO:\riSSORY NOTES. 223 <) Kiiilway <'oiii|»aiiy. The Saint Stephen Branch Railway Co. may take and recover on a promissory note p;iven for amount of assess- ments on calls cine by a stockholder on his shares. St. Stcphi'ii Branch Railiraij Co. v. W'trk, 2 II in. 130. lO-.loiiit liiability— ^iic|»ai'stto liit<>ro!>«t. The jury having found defendants, joint promissors on a promissory note. Held, That they were liable although the interest of each in the purchase of vessel might be separate. See Mai/nes v. Mulioiiej/ aiu] MrLiuoi, 2 Hiin. •23. II— F)iifloi'*«4>iii«>iit of iiaiiio— 'Vo <>ii4loi'>«4>iii«>iit by |>ay —Liability. A party not appearing on the face of a promissory note as a maker, does not by endorsing his natue thereon, ren- der himself liable to the payee as a maker of the note. Smith V. /////, 1 .1//. 213. ri-~\ot prodiK-iii^ oi' oftoriii^: to «l4>livei' iiot(>. The maker of a negotiable note is not bound to pay it miless the party demanding payment produces and offers to deliver it up. Jonhin v. Coates, 2 .1//. 107. IS— As:rnt- Aiitlioi'ity— liilVroiicc. The authority of an agent specially authorized to draw a liill of exchange for a i)articular purpose, ceases on the acceptance, and if the drawer is discharged by want of no- tice of dishonor, the agent cannot, without further express authority, revive the liability by agreeing to waive the legal (liscliaro;e. Mrdhie v. (Irilhert, 1 All. 285. II- The defendants gave a promissory note, which was endorsed in blank by the payee : after it was due it was in the hands of T., who demanded payment of the de- fendants, but refused to produce it, and a few days after- wards told the defendants' agent, who offered to pay the note, that they should not have it, and he would give them a bunt for it. The defendants afterwards tendered the amount of the note, when J. said he had sold it, but refused " \i 224 BILLS AND PROMISSORY NOTES. to tell who the holder was, sa3'ing the defendants might seek it. On the following day the suit was commenced, and the defendants immediately afterwards paid into the Justice's hands the amount of the note and costs. The l)laintiff was J's son, living in the house with him, and there was no proof of any actual transfer of the note by J. Held, That it might be inferred thai the plaintiff was only the agent of J., and therefore thni; the jury were justified in finding a verdict for the defendants. Jordan v. Cnutes^ 2 All. 107. 15— PcrMoiinl liability— $!>i$i;iiiii;; note siH agent. Dc*' -it as Commissioner of The New Brunswick and ( .n ".lailway Company, drew a bill of exchange on the company, to pay for work done on the railway, and sign I 1 it " J. J. Robinson, Commissioner." The drawee knew lor >',...it i;uj.pose the bill was drawn, and that the de- fendant was the agent of the company. Held, In an action by an endorse, that the defendant was personally liable. Pede V. liohinsoii, 4 All. 561. 10— Kgiiilion of aiitlioiity— Evidence. In an action on a bill of exchange expressed to be accept- ed " 2>('>' pi'ocuratioii" by the defendant's clerk, evidence was given of a conversation with the defendant in which he stated that A. (the drawer) had drawn a bill on him which the plaintiff held, and that A. ought to pay it, because it was drawn for his benefit. Held, Sufficient proof to leave to the jury of a recognition of the clerk's authority to accept. ]\I«nis<,ii V. S2)i()r, 3 All. 288. 17— I]ii>enient by i'eQHe!>it— KQnitie**. Where a person endorsed his name upon a note at the request of the payee, at the same time informing the payee that it did not render him liable, he is not liable to a party to whom the payee afterwards endorsed the note after it was due. McQitiiui v. Sorrcll, 2 All. 140. IS— Payee— Hecovery on Coinnioii €oniit«. The payee of a dishonored bill of exchange may re- BILLS AND PEOMISSOBY NOTES. 225 cover the amount from the drawer in an action on the common counts, if no notice of dishonour has been given. Jamrs V. McLean, 3 All. 1G4. 19— Wife— Donatio iiiortiM cnii*ta — As^iciit of Executor — EvMleiiec. A man in expectation of death, endorsed a negotiable note specially to his wife and delivered it to liev. llvhl. 1. That the wife acquired no right by the endorsement, and 2nd, That it could not operate as a doiititio mortis en una, the note not being transferable by delivery only. 3d. That the executor's allowing the widow to retain the note for two years and to receive legacies under her husband's will without demanding the note, was no evidence of his assent to her retaining it, he having demanded payment from the maker. Wcldon v. Weldou, 2 All 590. 'iO— Evidence of Acceptance— <^a»»liiei'—lnMalnieiit!>«. A bill of exchange was drawn payable in three instal- ments. When the first instalment became due, the holder presented it at the bank where it was payable ; the cashier paid the first instalment and returned the bill to the holder \\\i\\ the following endorsement, " Paid on the within $741.00, August 12, 1801." Held, An acceptance for the remaining instalments. Bcrton v. TIce Central Banic, 5 .4//. 40n. itaiikiii^ Company— JTIode of Acceptance. An incorporated banking company can accept bills as incident to their business, and such acceptance need not be muler their corporate seal. Berton v. Centntl Bank, 5 All. 493. InilialiiijLr off nlani<>lil<>4l accoiiiil iii4'lii«liii;f nolo- I^]vi4l<>ii<'<>. In an action on a i)romissorv note payable at a par- ticular i)lace, and a bill of exchange protested for non- acceptance, the only evidence to prove the presentment of the note and protest of the bill, was a settled account between the parties including the note and bill, and a charge for " protested exchange." llAd, Sufficient to dis- pense with the preliminary pi'oof of pretentment and pro- test, and that it might be inferred that the protested exchange mentioned in the account referred to the l)ill in question, it being of the same amount, and no other bill being shewn between the parties. Bulloch v. Biiincij, 1 All. 131. 3 — Pl*Ot<'!iit— l']vi«l<>ll4-4' of Pl'C!>i<'lltlll<>llt, Av.. In an action against the drawer of a foreign bill, the protest is evidence of an acceptance payable at a partic- ular place, and of due presentment at that place. Tnrratt V, JVilmot, 1 All. 353. 4 — SuflirioiK'y of Pi'OMoiitiiioiit— -KikIoi'M'i*. A letter written l)y the attornt^y of the endorsee to the maker, stating that the note in question, together with other notes, had been placed in his hands for coUectiou, and requiring him to pay the interest, and give new secur- itj' for the principal, is not such a j)resentment and demand of payment as would, upon notice thereof, make the endor- ser liable. Tiiis letter was sent on the 4th March, and not being attended to, the note was presented to the maker for payment on the 17th June following, and notice of dis- honour given to the defendant as endorser on the 18tb. Held, That the defendant was liable. Thome v. Scov'd, "2 Kerr 557. ■;l ' BILLS AND PliO:\[IHSORY NOTES. •1'27 .% I>ii<> ilili^«>ii<-(> -i<'^li<**i <>1 liiw iiiKl liK-l Jury. Whetlur tlue dilij^ence lias been used in tlie }iresent- m; lit of a bill of exchange to the drawee, is a mixed ques- tion of law and fact ; and where the question has been properly left to the jury, the Court will not interfere with their verdict unless it clearly appears that they have come to a wrong conclusion. Pcrlei/ v. IloiranJ, 2 Kerr 518. U-Wiiivci'— Mlioii tvt't t4» .liiry. Where the defendant, who was the endorser of a pro- missory note which had not been duly presented to the makers, ])roinised payment thereof, knowing that he had not received due notice of dishonour, and under circum- stances from which it might be inferred that he was aware of the non-presentment, and the case had been left to the jury on the point of waiver of both these defects, who found for the plaintiff: the Court refused to disturb the verdict. ]]'(itf<'rs v. Lanlh/, 2 Kerr IB. 7-Wsiivor. A subsequent promise by the endorser in ignorance of the defect in due presentment, though he was aware at the time that he was discharged for want of due notice, is a waiver only of the want of notice, not that of presentment. Xoirliii V. liOftrh, 2 Kerr 337. ^-Pr<'s<>iitiii<>iil -Promise— l^:iioriiii4><> of iioii-prcHoiit- iiK'iit— Wsiivei*. A bill of exchange was drawn by defendant on T. in Bangor, payable in Ijostoii, and accepted generally by T., wlio had no place of business in Boston. T. died before the hill was due There was no presentment in Boston, Imt presentment was made at T's place of business in Bangor, and answer given that there was no administra- tion and no person authorized to pay acceptances. About six weeks after the bill was due, the defendant wrote to the plaintiff (endorsed) regretting the non-payment, requesting time for payment, and to be dealt leniently with, and offering notes at four and six months, which the plaintiff refused. Held, That as it did not appear when defendant TT 228 BILLS AND PHOMISSOKY NOTES. made the oftVr, he was aware the bill had not beeu pre- sented in Boston, his i)roniiHe was no waiver of the pre- sentiuent. Ihiud v. Bradley, East T. 18G2. O— Wnivrr. In an action on a proinissory note, payable at a bank to order of maker, and indorsed bv him, thire was no proof of presentment. IlcUl, That ;* siibse(pient promise to pay made liy def"iidant udmitted that all hiul Ix-en done by i)laintitts to entitle them to recover. Snxnt Stcphai Branch llaihraij Conipanif v. Black, 2 Han. 12',>. 10— I*lil(>4>— l>\V4'llillK^ llOIIM<>— KtOrC 4>IOMO«l. The maker of a ])romissory note, who was a mercliant residing and carrying on business in the city of St. John, having, before the note became due, closed his store and absconded. Held, That presentment at his late dwelling house was suliicient without proof of presentment at the store, or that the store remained closed on the day the note fell due. lidhiiDion v. Tai/lor, 2 Kerr 198. II— A«lllli^'Mioll. The holder of a note swore that he went to the maker > store for the purpose of presenting it for payment, but finding the door locked made a formal presentment at tlio door. The maker of the note swore that he was at liis store at the time stated, and that no presentment was made. The Judge left the jury the question whether tlie holder had presented the note, and in answer to a question by the jury, told them that for the purposes of the suit such a presentment would be sutHcient, no objection on that ground having been made by the defendant, lldl That there was no misdirection, and that the jury couW not have been misled by the answer to their question. Heed V. KavaiuKjh, 4 All. 457. An admission by a defendant that he had receival notice of dishonour, in the absence of any proof that it was received too late, or any objection made to it, is eriil- ence of its sutiiciency. Ibid. BILLS AND PIlO^rTSSOllY NOTES. 229 I'i \«>('4'*>Nit.v of |»r<'*t<>iitiii4>iif ~ Noto 4lni\vii mid M>iy- sii»l<> ill lto*«l»ii. ijiiit'ir, \Vli and |>la4>4> <»!' |»i'4>H4'iitiii4'iil. Ill !in action against th(! endorser of a note, the [liain- iiiiist show that it was presented at a reasonal)le hour. /V//./'.svm V. Taplry, 4 All. 292. Where a note was payahk) at a " store," and the only rvidiiice was tiiat when the hohler went to present it, the stui'c! WHS closed ; and the defendant objected that the i)re- Miitmciit was not shown to hR"e been nuide at a reasonable iiuur. Held, Tliat in the absence of any evidence of the nature of the Ijusiness carried on at the store, it might be inferred that it was closed in the due course of business, ;ind therefore that the presentment was not made at a icaijonable time. Ihiil. Scmhlc, If no question is raised at the trial about the lioiu" of presentment, and it is proved to have been made on the day the note falls due, it might be presumed to have been made at a proper hour. Ibid. II— Presentment of a note at the maker's place of busiiu'ss is sufhcient, although there is no person there at tlio time. Ki)un<(r v. Goddard, 4 .1//. 559. Tlie maker of a note was proved to have occupied an I'tlice up to the 1st ^Nfay, after which, there was no direct ividence of occupation, but his desk remained there as before. Ihld, In the absence of any proof of his having changed his oilice, that presentment of a note there after the 1st May, was suflicient. Kiiincar v. Goddard, 4 All. ooO. l')~P:i.val»l<> at partif'iilar |»lar4^— Time of d4>iiiaiid. A demand of payment of a i)romisBory note made pay- m 123(» BILLS AND IMU)^[1SS()];V XOTKS. able nt a i)ai*ticulnr place, may not bo iniulo on tlic vcrv day it falls due to li\ the; maker, altlioujj;h thei'u muHt he u demand at the place ui)on or after the day, before briiigiiif: the action. Uatclijnrd v. driiiith, *2 Kerr 112. 1<> l*si.viil»l<' "at any Hank" I'larc of |»n*H«'iitiii4>iil. A promissory note drawn on JJoston, where hotl mal\er and payee resided, was made i)ayalde " at am bank."" //^«>il.v 4»1 prt'Ht'iiliiii'iil. in an action by the payee against tiie acceptor of a bili of exchange, [uiyable at a particuhir place, which Itecaine lUu on the 8rd of November, the [)hiintill" averred presemuieiii for payment on the 2nd. it appeared in evidence tliut tiii bill hiid been presented on the 2nil, and that on tho3r(l,tlK day it became due, the defendant expressly r( fused to i)a; it to the plaintiff's agent, who called again, but it diil >• appear that the note was again produced. Held, pi'duf of presentment on the Jird was admissible, aiici u.,>. the refusal to pay on the 8rd, rendered the actual present- ment of the bill on that day unnecessary. Chnndi:r v. BccLirilh, jScr. 2()H. 1'7 «> !\'«'coMHiiiiii<>iil — SiiMix'imioii of rciiKMiy — I'oiiiiiioii 4'4»lllll<<. Sii Vi. 12 (/. IM— l*l<>a<«<>iiliii^ 4liafl -l]li(Ml 4»l -I>ir4'4'li(>ii to .liiry l>y JiidK*^ Sic Evidence XII. I)nun v. Fred it. Booiii Co. Whether presentment and notice of dishonour must be stated in affidavit for an attachment against an endorser. Sec affidavit 111. 10. Xieltolson v. Noivliit. BILLS AND L'ilUMlSSOUV XOTKS. 281 TV. NoTK'K OF ])lSlI(»SOi:. Srr Bills aiifl NotoH TIL l-i;vi (Icfundiints in this Province, on Duncan Brothers, London, payabU' sixty days after sicjht, iind returned under protest for non-pnvment ; tiie declara- tion averred in the usual form a prcsentn ent to, and ac- ei'ptiuice by the drawees, presentment for piiynient, dis- honour. lU'otest and notice. There was no direct evidence of acce[)tance, but on the face of tlu; bill appeared the fol- lowing' words : " Accepted ITtli ^lay, iHli, at Mt.'ssrs. •lonus, Lnyd \- Co. — Duncan 15ro's.;" and the protest of the notary pu))lic stated that he went with the ori,L;inal afore copied bill of exchange to the house ol Messrs. -ToneB, Loyd \- Co., bankers, where the same drawn upon IMessrs. DunciUi Brothers is accepted payable, and demanded pay- ment thereof, and was referred to the acceptors, whereupon lie went with the bill to the counting-house of tin accep- tors and demanded payment, whereunto a clerk answered Hiat tli(> said bill cannot be paid. Due notice of the dis- honour was given to the defendants, and no ol)jection made ill rof^ard to the acceptance. Held, That there was suf- lieitiit evidence of the dishonour to make the defendants Hiihle. Irriit v. Croi>k)ihnHU, 2 Kerr 899. '.>-l'i'('siiiii|»iioii oi'. An action by the payee against the drawer of a dis- Imiioureil bill of exchange, was disc(.ntinued on terms of the acceptor paying tlie costs, and placing the amount of thf bill to the payee's credit with a person to whom he was indebted ; and on the representation of the acceptor that this had been done, the bill was given up to him. In trover against the acceptor for the bill (th* amount not hav- ing lioen placed to the payee's credit,) tlie jury were direc- ted tluit under the circumstances they might presume that the payee had given notice of dishonour to the drawee, and 232 BILLS AND PROMISSORY NOTES. that the plaintiff was entitled to damages to the amount of the value of the bill at the time of the conversion, which was the amount due on the face of the bill. Held, Thiit this direction was right. McDonald v. Everitt, 3 Kerr oC'.). 3— Siillici«'iiC'y of. A bill drawn in St. John was dishonored in London, on the 10th October, the plaintiff not then being the holder ; a mail left Liverpool for St. Jofm on the 19th October, by which the plaintiff could not have given notice of dishonor, but notice was given by the next mail on the 4th November, which was as soon as the defendant was entitled to it. Held,, That x^ri nut, fdcic the notice was suf- ficient and that the plaintiff was nofc hound to shew that he had received due notice from the holder of the bill at the time of the dishonor. Tarrnt v. Wihnot, 1 All. ;553. 4— By mJi4»iii. Notioe of the dishonor by the cashier of a bank at which a note has been left by the holder for collection is sufficient. Girron v. Price, 801) All 409. 5 Where a note endorsed in blank, is left at a bank for collection, notice of dishonor may be given by the bank, though it has no interest in the note. Hoicard v. (jo'.hinl, 4 AIL 452. Notice of dishonor to the defendant as endorser of a promissory note, put in the office at Saint John, and directed as follows : " Mr. D. ])., (the defendant) near Blake's mills, Nashwaak,"' is not sutticieni, without proof that a letter thus directed would probably reach the defendant in due course through the medium of the post office. Rohinsan v. Duf, 2 Kerr 20(5. -y In an action against the drawer of a bill of ex- change, dated at I\Ioncton — TIehl, That in the absence of any evidence of its locality, or the course of the post with regard to it, the mere putting the letter in the post office at Saint John, containing a notice of dishonour, directed a -" BILLS AND PKOMISSOEY NOTES. 233 ,j^2i^^^BJ'- to the defendant at Moncton, did not afford a reasonable presumption that the letter would reach its destination. Balhch V. Einney, 3 Kerr 440. Where by the copy of a notice of dishonor taken by a copying machine, it appeared to have been directed at the bottom to the defendant. Semble, That the letter put into the post office, containing the notice, will be presumed to be directed on the outsic'e the same way. Ibid. 8-mistake in date of note. Notice of dishonor to the endorser of a promissory note is not voided by a mistake in the description of the note, E. G., stating it as a note dated Ist January, 1841, whereas it was dated 1st January, 1840, the note being otherwise correctly described, and there being no other note to which the notice could have applied. Robinson v. Tay- lor, 2 Kerr 198. 9-Adinission. An admission by the defendant that he had received notice of dishonor, in the absence of any proof that it was received too late, or any objection made to it, is evidence of its sufficiency. Read v. Karanagh, 4 All. 457. lO-Place— Change of residence. Defendant had resided and carrit^d on business for several years at a place called Brandy Point, and was in the habit of receiving through the post office, letters ad- dresbsd to him there. Held, That a notice of dishonor addressed to him at Brandy Point was sufficient, though he bad changed his residence about that time — the plaintiff not being aware of such change, and having applied for infor- mation as to his residence, to the payee of the note, with whom the defendant was in the habit uf transacting li is business in St. John. The Bank of New Brmsnick v. Md- lifan, 4 All. 254. II -Service of notice— Entry in dorensed IVotary^s booic— Residence of party— Presumption. Where the endorser of a note (the defendant) and 15 234 BILLS AND PEOMISSOEY NOTES. several of his brothers lived with their mother, and the proof of service of notice of dishonor was an entry in a book by a deceased clerk of a notary, whose business it was to serve notices of dishonor and to make entries thereof in a book, and who had been directed to serve the notice at the residence of the defendant — " served on brother at residence." Field, hi the absence of evidence that any brother of the defe*^ dant had any other residence than at their mother's house, that it was a fair presumption that the notice had been served there, and that the Judge was warranted in leaving it to the jury to find whether it had been duly served. Ciinhi V. Wright, 1 Piu/. 191. la — Tiiiio— l¥aiver. Where a bill drawn on persons residing in Dublin, Ire- land, was protested for non-payment on tiie 3rd November. 1841, notice thereof to the endorsers, who resided at St. John, in this Province, (where the bill was drawn) on the 22nd December following, was held not to be in due time, it appearing the mails left Great Britain for this Province on the 4tli and on the 19th November, and that a notice sent by the mail of the 19th, would have reached St. John about the 4th December. Br coiiimon coiiiits, if no notice of (ti)!«lioiior given. Sec James v. McLean, 3 AIL 164. ltt-niKtai(e in name— Time of receivings notice— Id iiii*t<>iioii— Inference for Jury. A notice of dishonor sent through the post office, was ■I ' > ' 11 I'! '< 236 BILLS AND PKOMISSOEY NOTES. addressed to " Edward T. Price." The defendant, whose name was " Edward Price," admitted the receipt of the notice, but objected to pay because he was an accommoda- tion endorser. Held, That the jury might infer that he had received the notice in due time, and therefore that he was liable, notwithstanding the mistake in the name. Girviin v. Price, 3 All. 409. Woticc— Averment of. * See Pleading L, 72. Bank of Nova Scotia v. EsUt- brooks. V. Defence. 1— Fraud. Several of the creditors of the defendant entered into a composition agreement with him, whereby they engaged to accept payment of their debts at certain stated periods, and among the rest, the plaintiff agreed to grant three years for the payment of his debt. Held, That the plain- tiff could not, before the expiration of that period maintain an action on a promissory note, which he had afterwards induced the defendant to give him for the amount of bis debt, payable by annual instalments, but that such note was in fraud of the other creditors. Willard v. Kilhnan, 1 Kerr 105. 3— Fraud— Question for Jury. If in an action against the maker uf a promissory note, the defence is want of consideration, and that the note came into the plaintiff's possession by fraud, that question should be left to the jury. Smith v. Fleming, 2 Han. 147. 3 The endorsee of a bill of exchange, accepted by the defendant, for the accommodation of the payee, and of which there was some evidence of endorsement overdue, having received property from the payee for the purpose of satisfying this bill and others, admitted that he had sufii- cient property in his hands for that purpose, and promised the defendant to destroy the bill. Held, That there was BILLS AND PROMISSORY NOTES. 237 evidence of a good consideration for the promise, and that the Judge was right in leaving it to the jury to say whether the plaintifi had not, on such consideration, renounced his claim against the defendant on the bill. Watson v. Porter, 3 Kerr 137. 4— Consideration. The plaintiff agreed to sell the defendant all his right and title to the timber growing on a tract of land, which he had agreed to purchase from the Crown, and for which he had paid the ^^rincipal part of the purcha=e money, but had not obtained a grant. The defendant cut a portion of the timber for which the plaintiff paid the duties, but the Crown prevented the defendant from cutting the remainder. Hdd, In an action on a promissory note given by the de- fendant to the plaintiff for the right to the timber, that there was not such an entire failure of consideration as to prevent the plaintiff from recovering. Clark v. Ash, 3 Kerr 211. 5 Defendant gave the plaintiff a promissory note tor £150, because she thought a deceased brother (whose brother she inherited) would have left the plaintiff as much if he had made a will : a verdict for the plaintiff for A'20 was set aside, tliough there was evidence that the deceased owed the plaintiff about that amount, this debt being no part of the consideration of the note. McCarrol v. Rear- don, i All 261. 6-CoiiMdcratioii— Assent of part)'. Where the plaintiffs, who were an Insurance Company refused payment of a partial los.s to the assured in a marine poUcy. in consequence of the claims of W. P. & Co., to whom the amount of insurance was in case of loss made payable; but consented to advance the amount, upon the assured giving their promissory note endorsed by the de- fendant for the sum, which was to be paid at maturity un- less they procured the assent of VV. P. & Co. to their re- taining the money; which assent was refused. Held, That the defendant was liable on the note, and could not I .4 238 BILLS AND PROMISSOEY NOTES. defend himself on the ground of want of consideration, or that the plaintiffs were not justified in requiring the assent of W. P. & Co. to the payment of the money for which the note was given. New Briomvick Assurance Company v. Ansley, 2 Kerr 196. 7 — — Defendant gave his note payable at a future day, to the plaintiff, for a debt due from A. to the plaintifi", A. agreeing, in consideration thereof, to convey land to the defendant. A. afterwards refused to convey the land. Held, That the giving time for the payment of A's debt was a good consideration lor the defendant's promise, and that the plaintiff's knowledge at the time the note was given, of the agreement between the defendant and A., le specting the land, did not affect the plaintiff's right to re- cover on the note, he not being a party to such agreement. Mo fat V. Bnplissey, 1 Han. 21. 8— Note for ari'ear»$ of rent— ]%o authority to lease— IVote void. The Justices of York were empowered by Act 10 Vic, cap. 7, to lease certain lands by auction, but that no lease should be made unless the rent should have been fixed ly the Justices, or till the land should have been sold, or offered for sale at auction. The right of the Justices was transferred to the Corporation of Fredericton, who agreed to lease the land to A., but no lease was executed, and A. died, owing rent; the land was afterwards advertised at auction, but upon the sale, the defendant agreed to take a lease on the same terms that A. held the land, and pay the arrears of rent, for which he gave his note to the plaintiff. Held, That they had no authority to lease the land except by auction, and that the defendant was not liable on the note. City of Fredericton v. Lncas, 3 All. 583. 9— Composition— Siispensioii of action— Fraud. Several of the creditors of the defendant entered into a composition agreement with him, whereby they engaged to accept payment of their debts in certain stated periods, and among the rest the plaintiff agreed to grant three years for BILLS AND PROMISSORY NOTES. •280 the payment of his debt. Hdd, That tlie plaintitf couM not before the expiration of that period, maintain an ac- tion on a promissory note which he had afterwards induced the defendant to give him for the amount of his debt, pay- able by (tinuud instalments; but that such note was in fraud of the other creditors. Willnrd v. Kilhnan, 1 Kerr 105. 9a— CoiiKitloratioii— 4'oiii|»oKitioii — K«'losis('. The defendant assigned to a trustee a portion of his an- nual income, for the purpose of paying his creditors a com- position on the amount of their respective demands, and they covenanted that the payment of the composition should operate as a release of the original debts compound- ed for ; C, one of the creditors, refused to execute the com- position deed until the defendant gave him a note for ^200, which he did without the knowledge of the other creditors, and after which C. signed as a creditor for 4*723. Held, 1. That the sum stated in the deed must be taken to be the whole amount of C's debt, and therefore there was ])rmn fade no consideration for the note, and it was a proper question for the jury whether the alleged considera- tion was real or not. 2. That the note was a fraud upon the other creditors, and that the plaintiff having become endorsee after it was due could not recover on it, though it would not ali'ect that part of the defendant's income which was assigned for payment of his debts. McCalmont v. BnUlie, 1 All. 573. 10— Objortioii— LateiicsM of to consideration. The defendant having given a promissory note to the plaintiff, upon which the defendant's property was attached in the United States, gave a new note with security, in order to get the property released. Held, That it was too late to object that the consideration of this note was frau- dulent. T tittle V, Smith, 3 Kerr 648. ll-.\otc ovoi- due— Enclor$«cnient. Where a promissory note made in 1836 at Bangor in the United States, where the maker and payee both re- t I 240 BILLS AND PKOMISSORY NOTES. sided, payable on demand (without specifying interest), was endorsed about two years afterwards by the payee to the plaintiff at Saint John in this Province, in payment of a debt, and it appeared that the amount of the note had been paid by the maker to the payee at Bangor a few days after the date, but the note had not been given up because the payee then stated it was lost or mislaid ; an action having been brought by the endorsee against the maker, in which a verdict was found for the defendant ; the Court refused a new trial. Donrjan v. Small, 2 Kerr 89. Semble, A note payable on demand is, after demand of payment and refusal, to be treated as over-due ; and a note whereof paym nit has actually been made when demanded, cannot stand o.i a better footing. lb. IS— IVote over-due— Evidence -Endorser's tions. dcclara- In an action commenced in the autumn of 1840 by en- dorsee against C, the maker of a promissory note dated iu March, 1835, and payable in the November following, no evidence was given at the trial by the plaintiff of the time and circumstances of tlie transfer, but the defendant in order to shew that the note had been endorsed over-due, so as to let in evidence of the endorser's declarations, pro- duced a witness who stated that the endorser had in Au- gust, 1840, shewed him a note made by C. in his (the en- dorser's) favour, which he proposed to assign to him in payment of a debt ; which note witness believed to be the same as that now in suit, though he could not distinctly identify it ; the Judge having refused to admit evidence of the endorser's declarations, and a verdict being found for the plaintiff, the Court granted a new trial on the payment of costs, on account of the staleness of the demand, and the strong presumption that the note had not been endorsed over-due. Hammond v. Clarke, 2 Kerr 98. 13— Crivint; time to maker. The plaintiff, who was endorsee of certain promissory notes made by J. & H. K., and endorsed by the defendants, BILLS AND PEOMISSOKY NOTES. 241 which notes were given in payment of a bill of exchange drawn on persons in England, in the plaintiff's favour, and endorsed by him to J. & H. K., in anticipation of such bill coming back protested, entered into an agreement with J. & H. K. to hold over and return the promissory notes to them in case they took up the bill, with damaged and costs, when it came back ; the bill came back subsequent to the notes falling due, and the plainti£f was compelled to pay the amount to C. the then holder, J. & H. K. failing to per- form their agreement. Held, That the agreement amount- ed to a giving of time to the makers, and that the endoraers were discharged. Bedell v. Eaton. 2 Kerr 217. 14— Settlement of Note. In an action on a promissory note for .£30, made by J. B. to defendant, and by him endorsed to the plaintiff, the defence was that the note had been settled between the plaintiff and the maker, the plaintiff having received from him a new promissory note for .4*132, in which the 4*30 was included ; but it appearing to have been agreed between the parties that the t'30 was to stand — the amount when paid to be endorsed on the note : the Court set aside a ver- dict given for the defendant, and granted a new trial on payment of costs. Thurgar v. Berry, 2 Kerr 314. 13— Alteration— rVegfotiability. Where, upon a purchase of goods by C. from A., C. agreed to give a promissory note for the amount, endorsed by B., and a note was accordingly drawn and taken to B. who endorsed it ; but the words '' or order" had been unin- tentionally omitted, which were afterwards inserted by A. without B.'s privity. Held, That an action could not be maintained by A. against B. upon such note. Lnwton v. Umdije, 2 Kerr 520. 16— Identity. In an action by the endorsee of a promissory note against the maker, the hand- writing of the attesting witness to the maker's signature, together with the hand-writing of th§ endorser, were proved, but no evidence was given to idea- 242 BILLS AND PKOMISHORY NOTES. tify the defendant with the person named in th:; note, and the Judge at the trial, for want of sucli evidence, noii- suited tlie Dhiinlift"; on motion for a new trial — Held, That the evidence given at the trial was sufficient, and accordingly MvCuUnmih V. Sh'u'liU, :J K<:vv 391. a new trial was granted 17 -Sot oil— .4|>|»i'0|»i-iiitioii. Where the maker of a provnissory note delivered the payee a quantity of hay, without making any specific ap- propriation of the amount towards the paying of the note, and on a subsequent demand of payment claimed no deduc- tion on account of the hay. Ildd, In action on the note, that the value of the hay could only be considered as a set- oti", and that the plaintiff was entitled to costs, though the verdict was for less than t'5. lidvloir v. Clark, 3 Kerr 485. IM Pnyiiii'iit— Koccipt of rent. It is no defence to an action on a promissory note that the plaintiff had had possession of land belonging to the defendant, given as security for the note, and had an oi)[)Oi'' tunity of receiving therefrom rent more than sufficient to pay the note ; unless it is shewn that the plaintiff actuahy received such rent. Simottds v. TniviH, 2 //'(//. 14. 19— Security for psiyiiioiit. The defendant placed timber in the plaintift"s hands as security for the i)ayment of a promissory note, under an agreeraenj that the timber was not to he sold before 1st November without defendant's consent, but after that day, the plaintiff to be at liberty to sell, after giving the defend- ant fourteen days' notice : the plaintiff" sold the the timber after the 1st November, but without giving the notice. Hekl, (Ritchie, J., (hihitunte,) That though the defendant might be entitled to damages in an action of trover, or on the agreement for a wrongful sale of the timber, he was not entitled to credit as a payment, in an action on the note, for more than the proceeds of the sale, though that was less than the highest market value of the timber. Kiimearv. Ferguson,'^ All. 391. 'iO- Approp BILLS AND PROMISSORY NOTES. •243 •iO- AppropiiiUloii— Privity. It is no defence to an action brought by the plaintiff, a merchant in Liverpool, as endorsee of a bill of exchange drawn by the defendant on one J. W., at Liverpool, and remitted to the plaintiff by his agent at Saint John in pay- ing for moneys collected, that the bill was drawn against a ship and cargo, which the owners had consigned to the plaintiff instead of sending them to J. W., the defendant's agent, as had been originally intended ; the plaintiff' not having been [ rivy to the arrangement, and having in fact applied the jwoceeds of the ship and cargo to the payment oi' other demands which he had against the owner. Hniton V. Wniunt, 2 Ken 824. •21 - liii|»ro|M>i' di-Hwiiitt: — Forgery of wiKiialurt* — Es- tO|»|><>l. It is not competent for the endorser of a note to set up as a defence to an action upon it, that the signature of the maker is forged. McLeod v. Carman, 1 Han. 592. 'i'i— Eiidorsciiient by oiio of firm— Aiitlioi'ity— Fraiidii- l<>nt c'lKlorMciiient— Bona fide liol«lcr. Ill an action by iihona Jide holder against the endorsers of a note, it is no defence that the note was endorsed by one of the defendants (a firm) fraudulently, without the authority of the other defendants, and formatters not relat- ing to the business of the partnership. Ibid. Notice of such fraudulent endorsement given to the hiiim Jide holder of a note will not affect his right to recover, nor will it affect the right of his endorsee though the last endorsement was made after the note was due. Ihid. '23-R»ieaso, before maturity of note. The holder of a note may discharge the endorser by a general release before the note is due, and such release will oe a good defence to an action by a subsequent endorsee. ^hlcod V. Carman, 1 Han. 592. «4-Statute of limitations. To a plea of the statute of limitations in an action by ■!'? i 244 BILLS AND PROMISSORY NOTES. the endorsee against the maker of a promissory note, the plaintiff replied that when the cause of action accrued to him he was beyond seas, and that he exhibited his bill within six years after his return. Rejoinder, that at the time the supposed cause of action accrued to the plaintiff, he was not beyond seas. Hebl, That the action accrued to the plaintifif when the note was tra^^isferred to him, and this being more than six years after it was due, his absence he- yond seas was immaterial. BnuUmry v. liaillie, I All. 690. W hen the statute has begun to run, no subsequent en- dorsement to a person whether in or out of the Province, will stop it. Ibid. a.l To an action on a promissory note payable in four instalments, the defendant pleaded that he did not undertake or promise within six years. Replication — that the several causes of action, and each and every of them accrued to the plaintiff within six years, etc., on which issue was joined. Held, That though the plea might be bad on demurrer, the proof of the issue was on the plaintiff, and the cause of the action on the two first instalments having accrued more than six years before the action was broughti he could not recover them. Montgomery v. McXair, 2 All. 31. *I6 The plaintiff sued on two promissory notes, made by the defendants, while partners in trade more than six years before the commencement of the action ; certain payments having been made within six years by one [)art- ner after the dissolution of the firm, as also an account in writing stated and signed by him, acknovvled'j^ing •■ bahi which included what was still due on the nor [eUl, Suf- ficient to entitle tha plaintiff to a verdict aist such de- fendant, and if the respective payments \v actual'v made on the notes, iney would be sufficient to take the c- -.e out of the Statute of Limitations against both defendants, the Act of Assembly, 6 Wm. IV., cap. 51, having expressly left the effect of payments on the same footing that they were be- fore the passing of the Act. Sands v. Keator, 3 Kerr i)2l'. •iY-Ktiitutf> or BILLS AND PIIOMISSOKY NOTES. 246 •IT_«iitiitut« of llmitatloiiM. Assumpsit on three promissory notes ; plea, Statute of Limitations. The notes, with fleveral others, were given for land sold to the defendant by the plaintiff as executor of G., whose widow was entitled to the interest of the money for which the land was sold. The defendant, within six years before action brought, paid the widow .4'4 lOs., and directed her to tell the plaintiff to eudorsc it on the notes without mentioning any particular notes, and no notes being produced ; no endorsement was made on the notes and there was no positive evidence that the other notes had been paid ; but A'4 lOs. was the annual interest due on the three notes. The jury having found that the payment was made on the three notes — Held, That it was sufficient to take the case out of the Statute of Limitations. Vanuart V. Roberts, 8 Kerr 672. 'i§— Joint payees— Endorsement l»y one. A promissory note made to C. and D. jointly, was en- dorsed by C. alone to B., and by B. to A. Held, That B. was liable as endorser, and could not set up as a defence to an action by A. that D. had not joined in the endorse- ment. Thmjar v. Clarke, 2 Kerr. 370. Seiiihk, That A. could not have maintained an action against the maker of the note without proving that C. had authority to endorse. Ihid. *i9-ExtinKiifshnient of original claim— Oiving bill— Los*i of. Declaration in assumpsit on the common counts. Plea, admitting the sum of £526 128. 4d. to have been due to the plaintitf, averred that for that sum the defendant at Saint Andrews, in this Province, drew his bill of exchange on one C. M., payable to the plaintiff, which was delivered to plain- tiff, and by him received and accepted for and on account of the sum so due. Replication — that after the bill of ex- change as so received, and before it became due and pay- able, the plaintiff sent the same by a vessel, of which the 8ai i C. M. was master, addresied to the plaintiff's agent in 1 li 24G BILLS AND PKOMISSUKY NOTES. tlie West Indies, for the purpose of being presented on the said vessel's arrival, but that the vessel foundered at sea on the passage out, whereby the said C. M., the drawee, per- ished, and the bill was destroyed and lost, and the plaintiflf was unable to present the same, and the same remains wholly unpaid. Special demurrer, assigning for cmises that the plaintili''s remedy for the original debt was lost b) his taking the bill of exchange, and was not restored by tlie destruction and consequent non-i)ayment of the bill, as set out in the replication ; that the facts stated in the replica- tion were immaterial ; that alter the receipt of the l)ill the liability for the original debt was only a secondary liability, and the plaintiff's primary remedy was against the personal repre.-entative of the drawee, and that the remedy, if anv, was In equity only. Held, That the replication was not defective for any of the causes assigned, but afforded a suf- ficient answer to the plea. Boyd v. MvLauchlan, 1 Km 210. 30 Plaintiff' having an account against defendant and W. K., settled it by taking \V. K.'s notes, payable at future days in favor of plaintiff and his partner, and gave a receipt at the foot of the account, stating that he had received payment by the notes (describing them.) HeU, That the original debt was extinguished by the notes, Thompson v. Keith, 6 All. 83. 31— !*iuti!4l'uctioii of debt— TiiMiig; bill. Taking a bill of exchange is not j^rr se, a satisfaction of the debt, but operates only as a suspension of the plaintiff's right to recover on the consideration of the bill, until he has done all that is necessary to procure satisfaction by means of the bill. Enwrson v. Gardiner, 1 All. 451. 3.'l— .\o it'jjfa 3>e — EKtiiig;iii!>>liitii'iit of debt deed. Signing composition . The holder of a note, signing a composition deed, by which he agreed to receive a certain dividend in full dis- charge of his claim against the maker, extinguishes tbe BILLS AND PROMISSORY NOTES. 247 claim on the note, and he cannot maintain any action tliei'fon against the endorser. Thurgar v. Travis, 2 All. 272. 3S— ^o Ic'^al interest. D. agreed to purchase a vessel from the defendant, and to p«.y by r .'Heving him of outstanding Habilities, or in ap- proved payments on the transfer of the ship ; in order to carry out this contract, ]). obtained outstanding notes of the defendant's, by giving his own notes endorsed by W. in the phice of them, which notes he transferred to the plain- tiff ovtr-due, telling the plaintiff at the time that he had no interest in them, and that they belonged to W. The defendant never transferred the vessel. Held, That the jury were properly directed that W. never had possession of the notes, had no legal interest in them, and that the defendant was legally liable on the notes, notwithstanding the agreement about the vessel might have been broken by ]). liaiimond v. Wilmot, 2 ^//. 80. A promissory note of ,i;200, made by the defendant to one W. L., and endorsed to the plaintiff, which was affected by usury, was discounted at the Commercial Bank, and pay- ment thereof when due demanded by the bank. The makers paid the bank ii'25, and the plaintiff the remaining 4*175 : whereupon anew promissory note was given with the same parties as before for ^\li , on v/hich the present action was brought. The t'200 note was given up. Held, That it was oppn to the jury to consider the note for i'175 as a new :-ecarity not affected by the usury in the previous note : and they having found for the plaintiff, the Court refused to disturb the verdict. Imvis v. Chuhh, 2 Kerr 395. ;i4 lu an action by tlie endorsee against the maker of a promissory note, there was positive and uncontradicted tvidencu of usury ; but a verdict was nevertheless given for the plaintiff : the Court set aside the verdict, and granted a new ^rial on payment of costs. Ikivis v. Lcavitt, 2 i^(rr 397. 248 BILLS AND PROMISSORY NOTES. 36 The defendant joined with one H. in a promis- sory note to plaintiff for the price of goods sold to H. When the note became due, the defendant being calif '^ on for payment, gave a new note to the plaintiff, which was tainted with usury, and the old note was thereupon given up. Held, That the plaintiff failing on the second note oij the ground of usury, could not recover on the first note which had been so given up to the defendant. The usury being clearly proved, the Court set aside a verdict ^ven for the plaintiff on the second note, and granted a new trial on payment of costs. Turner v. Gilbert, 2 Kerr 464. 37 An agreement to discount a note on condition that the borrower would take part of the amount in bills of exchange, at a premium higher than the cash rate, is prima facie usurious ; but that alone will not amount to usury if the excess of premium can be ascribed to any real contingency, or was taken as a fair equivalent for any risk incurred by the lender. Bank of British North America V. Fisher, 2 All, 1. 3§ Defendant endorsed a note for the accommo- dation of S., who gave it to B. to raise money on it : B. applied to the plaintiff who discounted the note, deducting more than the legal interest. Held, That it was a loan by the plaintiff, and not a purchase of the note, and therefore the transaction was usurious. Peters v. Irish, 4 All. 326. 89 In an action by the endorsee against the en- dorser of an accommodation note, to which the defence was, that the plaintiff in discounting the note had taken usurious interest, the maker of the note proved that be gave to B., a broker, to get it discounted. B. could not identify the note as the one discounted for him by the plaintiff, but said if it was so, the transaction was usurious. A verdict having been found for the defendant, a new trial was refused — there being no evidence of any other note be- tween the parties, and the plaintiff failing to shew that he had not obtained it from B. Hastings v. Hennigar, 4 AU, 867. '•i-Evi(H>ii4>e BILLS AND PROMISSORY NOTES. 249 -The defendant made a note in favour of the 40 plaintiff, which lie endorsed in blank, and delivered to the defendant, who transferred it tu N., to whom the plaintiff was obliged to pay the amount. Held, That the plaintiff could recover on the note as payee, though there was usury in the transaction between the defendant and N., the plain- tiff being no party to that, and there being no usury in the inception of the note Ziciivrenco y. Hammond, 4 .4^^.613. See Act of Assemb '/ J2 Vic. cap. 21, modifying laws re- lating to usury, limitmg interest to 6 per cent., but con- tracts for more not void as to principal and legal interest. VI. Miscellaneous. 1— Diiiiiii|j[es. Semhlc, That the acceptor of a protested bill of exchange, drawn in this country and accepted payable in England, is not liable to 10 per cent, damages under Rev. Stat. cap. lit], in an action brought here. See Morrison v. Spiirr , 3 .1//. 288. 'J-Evi4i«>ii«><; -Declai'atioiiM of pi'incipnl. In an action against one of the makers of a joint and several promissory note, signed by him as surety tor the other maker, declarations of the latter made subsequent to giving the note are not evidence against the defendant. Pdmer v Wilson, 3 .1//. 443. !J-:V«io lor Liqiioi'iii. In an action on a note for the price of liquors sold, the plaintiff need not prove that he had license to sell. McAiiley V. Lmdor, 4 .1//. 600. i i^qiiitiem-Holder -Payee. h a promissory note is endorsed over as a security for advances only, the liolder is subject to the same equities as tlu payee. Kstahrooks v. McKenzie, C. Ms. 69. ^~ Check, if treated as an inland bill of exchange^ 'lie initialing by party's cashier does not amount to an ac- ceptance. See Check 2. 16 250 BILLS AND PROMISSOEY NOTES. 6— Forg^ery relied on as defence— Considerntion not required to be proved. In an action on a promissory note for ,i700 the defence was that the defendant's signature was forged for the plain- tiff, and in order to estabhsh this, evidence was given (inter alia) of a legacy of £5000, payable by the defend- ant to the plaintiff's wife, whi({h legacy had been paid inde- pendently of the note. The defendant's counsel relied up- on the absence of evidence of any other transaction between the parties out of which the note could have arisen, and therefore the apparent want of consideration, as an ingre- dient to establish the forgery. The Judge left the question of forgery to the jury, who found a verdict for the plaintiff. Held, That as the defendant had put his defence on the ground of forgery, the plaintiff was not called upon to prove the consideration, nor was tlie Judge to leave to the jury whether he had given any consideration for the note. {See Harvey v. Towers, 6 Exch. 656.) Mathiaret v. Ihmh Mich. T. 1833. 7— Alteration of note— Evidence when made. A joint note made by two persons appeared on its face to have been altered in the date. The note was delivered to the plaintiff by an agent of one of the makers (defend- ants) in its altered state ; the other defendant was called as a witness, and stated that he could not write, or read writing beyond his own name, and could not say that the note had been altered since he signed it. Held, Sufficient for the jury to infer that the alteration was made before the note was signed. Street v. Walsh, 5 All. 343. 8 -Interest rccoveriihlo from when. A promissory note dated th« 24th August, 1857, pa}' able with interest " from first August last," bears interest from the first August, 1856. Calhoun v. CollplttH, 5 M- 882. 9— Partnership— Variance— Proof. In an action against A. and B. carrying on business in partnership together with C, under the style of A. &Co., BILLS AND PROMISSORY NOTES. 251 on a promissory note signed by A. in the name of the firm, the declaration alleged that the note was made by A. and B. under the style and firr' of A. & Co. ; held no variance . The non-joinder of C. juld only be taken advantage of by plea in abatement. Helly v. Balloch, 2 Kerr 699. IQ In an action by the payees against the maker of a promissory note payable to A. B. C. and D., the de- claration alleged that the defendant promised to pay the plaintiffs by the name, style and firm of A. B. C. and D. HM, That it was not necessary to prove that the plaintiffs were partners, and that the words " name, style and firm " might have been struck out of the declaration. Allen v. McNaughton, 4 All. 234. ll_Avei'iiieiit— Proof— Special count— Recovery under coniMion count. If the holder of a bill of exchange relies upon there l)eing no funds in the hands of the drawee, as an excuse for not presenting the bill and giving notice of dishonour, that fact should be stated in the declaration : and if pre- sentment and notice are averred, they must be proved to enable the plaintiff to recover on the special count. If a bill of exchange is drawn for the balance of an account acknowledged to be due to the plaintiff from tho drawer wlio has no funds in the drawee's hands, the plaintiff may recover the amount upon the count on the account stated, if, in consequence of not alleging the excuse for present- ment and notice, he is unable to recover upon the special count. Emerson v. Gardner, 1 All. 451. 1'2-I»ayable at particular place— Common Counts. In an action by the payee against the maker, a pro- missory note is admissible in evidence under the common money counts, although it is in the body of it made pay- able at a particular place ; the right of recovery, however, is suspended until presentment be made at the place, on or after the time of payment. Merritt v. Woods, Ber. 2G1. •!J-ParticHlars referring to note— Evidence. Where the declaration contained a couut by the plain- -ii ' ! ■ : ! 252 BILLS AND PROMISSORY NOTES. tiff, as endorsee of a note drawn b}' D. B. in favour of the defendant, and by him endorsed to the plaintiff ; with the common money counts ; and a bill of particulars had been delivered stating that the action was brought to recover the amount of the note. Held, That the plaintiff' failing in proof on the count for the note, was not entitled to give evidence under the common cortnts of an admission hy the defendant that he had received funds from I). B. for the purpose of paying the note, and had afterwards promised to pay it. Tapley v. McIIenri/, 2 Kerr 57. 14— l><>ro€t !!)ii|»|»lioc1 l»y Favtit;iilai'oiiiit!>>. *SV(; Assumpsit. See also Supra 12. 16— fJoiiti'ibiition— Liability for— $!iatiwrartioii. See Consideration 8. lO*- Variance— Copy of 8iiiiiinoii« aii<1 iVote— Siiiiiiiiary procefiis— Variance in— Cannot 8>e taiccii advaii- tag:e of on trial if note correspon(l!i> with orig:iiial wiiicli is lh(> record. See SteadnuDi v. Uohiead, 3 Kerr 355. 18— Fsury, 22 Vic. cap. 21— Recovery of interest— No- tice of Set-oif— Recovery under. The consideration of a note given for a balance found to be due on settlement, where nothing would have been owing had lawful interest been only charged, wholly failed, and defendant is entitled to recover under notice of set-off everything paid above six per cent. Peters v. Horton,'! Pufi. 176. 19— Judicial notice— Foreign country. The Court will not take judicial notice that a note pay- able in Boston is payable in the United States. Cushin^ V. Gordon, 6 All. 624. 5( BOARDING HOUSE KEEPER. 253 Necesf^ary avcrineiit ol i-rc^iciitinciitliii affidavit. See Affidavit — same case. AuHi'd and satif»ia<'tion— Whether bill or note taiicii aiit Mieii ; a question for Juj'y. See Evidence XII. Dunn v. Fred. Boom Co. Lnciie*^ ill presenting «lrart— Creditor niaiiing «lel»t his own tiiereby. See Evidence XII. lb. Pnyiiiont of note to one administrator. See Executors, &c., 7. Trueman v. Dixon. Checks. See Check. Want ot consideration— Tiiird person. See Agreement 10. Earned preniinni— Agreement as to payment— Mon- niatiirity of note. See Insurance 42. BOARD OF HEALTH. Re^iilalioiis— 1%'ot imposing penalty— Omission not in- valiilating. See Criminal Law 19. BOARDINO HOUSE KEEPER. l-Lien. A boarding house keeper has no lien on the goods of a person occupying rooms in his house under an agreement, for uon-payment of his bill. Light v. Ahel, Tr'm. T. 1865. '2-liiarncter of iceeping left to Jury— Pleading. In replevin the defendant pleaded that she kept a public boarding and lodging house, with rooms, etc., for the recep- tion, pubhc entertainment, boarding and lodging of all guests, boarders, etc., who might come to her house willing- to pay an adequate price ; that the plaintiff was accepted as a guest and boarder in the house for certain reasonable reward, and as such guest brought the goods and chattels I 254 BOOM COMPANY. to the defendant's house, and that she kept and detained them for a hen thereon, to insure payment of an account due to her for lodging and entertainment provided for the plaintiff. Eeplication — de injuria. Held, That the replica- tion did not admit that defendant was an inn-keeper, that on the issue raised, it was i^roperly left to the jury to find whether the defendant was an inn-keeper or a lodging house keeijer, and whether the plaintiff 'Was received at her house as a traveller, or transient boarder, or as a boarder under a special agreement. Light v. Ahel, 6 All. 400. Bodily linrni. See Criminal Law. Boom €OI?IPA]WY. Pou'ci' to «>i'ci',t booms— ]\avig;atioii—Ob$tiiictioii of. The Southwest Boom Company was incorporated by 17 Vic. cap. 10, (Acts of New Brunswick,) for the purpose of erecting booms, &c., and of picking up, securing, and raft- ing timber and lumber floating down the "Miramicbi River. By the fourth section of the Act, it is enacted thac " the boom or booms shall be so constructed as to admit the pas- sage of rafts and boats, and to preserve the navigation of the river." The Act 17 Vic. cap. 10, was continued in force by 35 Vic. cap. 44, (Acts of New Brunswick,) and further powers were given the company by 37 Vic. cap. 107. At the place where the company erected its ])Oom, the river was about one-third of a mile in width, and of this the company appropriated about fifteen hundred feet for their boom, leaving a space of from one hundred to one hundred and fiftj^ feet on the northern side of the river for the pas- sage of rafts and boats. It does not appear that the river was ever obstructed prior to 1874, but in the spring of that year, in consequence of an unusually large quantity of lumber being in the river, and an extraordinary and sud- den rise of water, the whole river at and for a considerable distance above the boom became so blocked up with the lumber brought down bj the freshet, that it was impossible for any thing to get through, and the whole navigation of the river was for a time entirely closed. In consequence of BOOM COMPANY. 255 this, the plaintiff was prevented from getting his lumber to market until late in the summer, and from fulfilling a con- tract to deliver deals at Chatham, and consequently sustained damage. The company contracted with one B. to pick up the lumber coming down the river and put it into the boom, and the latter, for the purpose of facilitating his work, erected what was called a swing-boom, by which the whole open space between the company's boom and the northern shore was completely closed during the principal part of the time. On the trial, the jury were directed that if they came to the conclusion that the Boom Company had con- structed their booms in the manner required by the Act, and had left a suUicient space open, and the jam of lumber which obstructed the river was the result of inevitable acci- dent, and of some cause which the company could not con- trol, viz.. The sudden and unusual freshet which forced the principal drives down the river sooner than in ordinary seasons, and in such unusually hirgo quantities, that they could not be controlled by ordinary means — then the plain- tiff could not recover. Eegarding the swing-boom erected by B., the jury were directed that the company was liable for the effect of it. The jury found for the plaintiff. Held, that the Acts 35 Yic. cap. 44, and 37 Vic. cap. 107, are not ultra fires, that the right to authorize the erection of booms for securing lumber in the rivers of this Province belongs to the Local Legislature; and that the words "navigation" and " shipping" in the 91st section of " The British North America Act" are used in the sense in which they are used in the several Acts of the Imperial Parliament, relating to navigation and shipping, and in the Act of the Parliament of Canada, 81 Vic. cap. 58, viz., as giving the right to pre- scribe rules and regulations for vessels navigating the waters of the Dominion. Held, (by Allen, C. J., Wetmore and DutT, J. J.,) That the direction in regard to the boom erected by B. was correct, and that there was evidence on Avliich the .Jury could pro[)erly find the company liable for tlie obstruction thereby occasioned. Held, (by Allen, C. J., ^'eldon, Fisher, and Dufi", J. J.,) That the company were bound to protect the navigation of the river against the 256 BOND. effects of all ordinary Hoods and freshets that might Le ex- pected in that part of the country, but not against extraor- dinary and unforeseen floods and freshets, and that they were not liable for an obstruction to the navigation caused by the ris mtijor, and not through their own negligence and improper conduct. If eld, (by Wetmore, J.,) Tliat the Act of Incorporation should be construed as a contract on the part of the company, and that by this they had undertaken to preserve the navigation of the river, which they were bound to do at all hazards, and that they could not be ex- cused on account of the ris major. Held, (by Weldon and Fisher, J. J.,) That the finding of the jury was against the weight of evidence, and that there should be a new trial on payment of costs. McMillan v. SoutJiiccst Boom Co., 1 ?> d- B. 715. BooiviA<;i:. I^iability to Payment of. The Act 10 Vic. cap. 7'2, authorized The South Ij ly Boom Company, to erect booms and piers between certain points on the liiver St. John, for securing timber, logs, etc., and the 15th sect, authorized them to receive certain boom- age on all timber, logs, etc., which should be " carried or received, or which should enter into or within said i)iers or booms." Held, That the owner of a saw mill at the mouth of a stream within the bounds of the boom, and whose free access to the Eiver St. John was partially obstructed thereby, had no common law right as a reparian proprietor, to pass logs through the boom to his mill, without pay- ment of boomage ; and that as he came within tlie words of the Act, there was no imi)lied exemption from the charge imposed by the 15th sec. of the Act. South Bai/ Boom Co. V. Jcicctt, 5 AU. 2(57. BOND. I. Particular Bonds. 4. Limit Bond. B. Bail Bond. BOND. 267 C'. liEi'i-EviN Bond. D. Administration Bond. K. Auhitration Bond. r. Shkuiff's Bond. G. MiSCEIiLANEOUS. A. Limit Bond. 1— Limit Bond— D(>feiivt>— Action by Slieiiir. In au action of debt brought by a Sheritf upon a limit bond under 10 and 11 Geo. IV. cap. 30, it is a good defence to shew that the Sheriff had received the defendant again into close custody either on being rendered by his bail or by such defendant rendering himself in discharge of his bail, but non-daminfacatns is not a good plea except only where the bond is merely to indemnify. Campbell v. Hcnan (talBer. 72. a— Assimiee of. In an action by the assignee of a bond for the gaol limits, it is a fatal objection, even on motion for arrest of judgment after verdict, that it does not appear on the re- cord that the assignee was the plaintiff in the suit on which the bond was taken, there being nothing to render proof of that fact necessary on the trial of the issue. Semhle, The declaration should state the writ on which the defendant is in custody when the limit bond is taken. Cameron v. Biwihley, 2 Kerr 598. S-Dsiiiia^fcs— Ai««nicnt. In an action on a limit bond, the damages may be as. sessed by the jury ; and the i)ropci rule of damages when the bond has been taken from a person in custody under execution is the amount of such execution. McKenzie v. Uanh, 2 Kerr 629. [Sec Nos. 10, 15.) 4-Liniitis of Oaol— Prisoner M:oing: beyond. The Act 6 Wm. IV. cap. 41, authorized the Justices of 258 BOND. the Peace in the several counties to designate certain gaol limits, not to be less than 40 rods nor to exceed 1(50 rods from any gaol : the Justices of C. made an order that the gaol limits ot that county should extend to 160 rods from the gaol, and that thu sheriff should cause, the samn to be defined and designated by erecting posts at the extremi- ties. In pursuance of this order the sheriff marked out limits in 1837, which had been sine* acted upon. Ilrld, That a limit bond taken in reference thereto, was not for. feited, though the posts erected were afterwards found to be 174 rods distant from the gaol, and the prisoner had gone beyond the 160 rods, but not beyond the posts — it not appearing that he was aware of the excess. Boyd v. Kciu nedif, 1 All. 624. Persons entering into a limit bond are not required to make a measurement to ascertain that the limits marked out by the -Justices are in due conformity to the law. Ih'id. 5— Fayiiieiit of !§lini'ift^M f'oo upon— Taking. Payment of Sherift"s fee is necessary to the completion of limit bond, and the Sheriff is not bound to discharge de- fendant from gaol and give him the benefit of the limits without such fee being paid. See Caldwell v. Winsloiv, 2 All 203. 6— Vali«lity ot— Jfloro tliaii double amount— Won est fac- tum. A limit bond taken under the Act 6 Wm. IV. cap. 41, for more than double the sum for which the execution issued, is valid ; though if the penalty was unreasonable the obligor might be relieved by the Court. Forster v. Pim; 2 .1//. 215. 7— Defence— IVou est factum- DiHercnt Court. It is no defence under a plea of non est factum in an ac- tion on a limit bond, that it was brought in a different Court than that in which the original action was brought. Ibid. BOND. 259 §-Coiirt— iliilt. An action on a limit l)ond need not bo brought in the Court in which the suit in wbich the bond was t^'iviai waB brought. James v. lioach, 6 All. 28. 9— TiikiiiK: iiNMiKiiinoiit 4»rflrN( lioiid- ti(>M -TnkiiiK Me- M. being a priRoner on the Hmits, escapt^d without; the knowledge of the sheriff or tlio plaintiff, but returned again to the limits, and the sheriff l)eing dissatisfied with the sureties, took a new limit l)ond : the plaintiff afterwards* (knowing that the second bond had been given) took an as- signment of the first bond, brought an action thereon, and recovered a verdict for the del)t and costs in the original suit. Held, That he could not afterwards consider M. as remaining a prisoner on the execution, and take an assign- ment of the second bond and proceed thereon for the escape, even though the sureties in the lirst bond were in- sufficient. Goodwin v. Murray, 3 All. 595. Taking a second limit bond is no defence to an action for a previous escape, unless the plaintiff consents to waive such escape. Ih. 10— Action by ii««f«ig:nc('— i»€>snicnt ol dainiaKes. In an action by the assignee of a limit bond, to which )\m csf farttnn is pleaded, the common venire to try the issue, is sufficient ; and tlie plaintiff need not have dam- ages assessed, but may take a verdict for nominal damages, and issue execiition for the amount of his debt. McElroy V. Gctiji and another, impleaded witJt Ellis, 1 Tlan. 261. ll-A*iKi^:u«e— Action by— Proceedings to be set fortii. In an action by the assignee of a limit bond, it is ne- cessary to set forth in the declaration the proceedings in tlie original action in which the defendant was in custody. t'".'/e;' V. Sime, Hil. T. 1833. I'i-Dvrence— Action on a limit bond— Second arrest afltcr voluntarily allowing: to ^o at largo. If a judgment debtor arrested on a ca. sa. is voluntarily 260 BOND. allowed by the creditor to go at large, he cannot be arrest- ed again on a new ca. sa. ; and if he should be so arrested, and give bail for the limits, these ^acts will be a good answer to an action on the limit bond for an escape. An dreirsx. DcmMl, Tr'in. T. 1832. 13— Crdor lor diKcliai'ji^e not s^'i'vefl. An order for the discharge of an insolvent debtor iVom the limits, not served upon the sheriff, nor acted upon by him, is no answer to an action on the bond for the escape of the debtor. (Wilmot and Ritchie J. J., dissent ifnte.] James y. liodelt, G .1//. '28. 14— Esrap*'— F»iflii*rootroiiiity— .Iii» warrsEiit— Limit bond— Slieriff no i*i$j;:lit to take. A debtor in custody of the sheriff of Carleton on a ca. sa. escaped into the County of York, and was there arrest- ed under a Judge's warrant for the escape and committed to the custody of the sheriff of York who gave him the limits. Held, That the sheriff had no right to take a limit bond ; and the party being at large, the Court refused either to set aside the Judge's warrant, or to cancel the limit bond. E.v parte Haines, Jlil. T. 1862. See Bail. (Rehef.) lH- i:xl4>n!>iEon of iiinit!<> by Act 30 Vic. cap. *i§— Pre- vioH$« i'C|?niatioiiii<«. The Act 80 Vic. cap. 28, extending gaol Hmits to the whole County, repealed the regulations estabhshing gaol limits passed prior to that Act. Regiiia v. Fer(/uso)i, 1 1\ & B. 3. (Above Act was repealed before coming int^ operation). B Bail Bond. 16— Execntor of ai^^ig^n'^^ may maintain action— £i/i- dence— Eixecnt^on i»<»»uiii^:— Ainonnt. The executor of the assignee of a bail-bond may bring an action upor it. Scribner v. Gibbon, 4 All. 182. In an action by the assignee of a bail-bond where the only plea is non est factum, the plaintiff need not give any BOND. 261 evidenco|of the original cause of action; but on proof of the execution of the bond, he is entitled to a verdict with nominal damages, and if execution issues for more than the debt due and costs, the defendant may be relieved by application to the Court. Ibid. 17— Erasure in— Avoidance. ^vhere in an action on a bail bond there was an erasure in the condition, and the name of the plaintiff in the suit appeared to have been altered, and there was no evidence when the alteration was made. Held, That this avoided the bond. Wees v. Hall, Ifil. T. 1834. t>§— A<»Hi$;iiiiient of— l¥itiiesso»*— Cioiiiity <'OHrl \vX. Thf bail bond given to the Sheriff in the case of a capias issued out of the County Court, being assignable by virtue of the County Courts Act, the Statute of Ann, relating to the assignment of bail bonds, has no application, and it is not necessary that the assignment should be made in the presence of two credible witnesses. Smith et «Mig:nineiil — Form. A tenant replevied goods distrained for rent in Novem- Wr. 1858; the landlord appeared, and the cause was en- tered for trial at the Cu'cait in May, IbC^), but the plaintiff not appearing when it was called on, it was struck off" the docket. Held, That this was a breach of the condition of the replevin bond, to prosecute without delay. The breach of the bond is uecassarilv a damage. Stcenv. Hanson. 4 Ml. 459. 262 BOND. A replevin bond may be assigned on the request of the attorney of the defendant in the action of replevin, and may be given by the she: iff to his deputy to be delivererl to the assignee. Ibid. It is no ground for arresting the judgment in an action on a replevin bond, that the bond as staged in the declara- tion, Is not in the form prescribed by the Act, if the bond itself is correct. The variance might be amended even after notice of motion to arrest the judgment. Ibid. til— Pl4>n iki name. If a defcmUint in replevin claims property in partof tlif goods replevied, and the property is found in him on an in- quisition under a writ de proprietate probtnuhi, this con- stitutes a breach of the replevin bond, and entitles the de- fendant to an assignment of it, in order to recover the costs of the proceeding. Bern/ v. Mitchdl, 2 All. 880. BOND. 263 Qiuere, As to the disposition by >lie sheriff of the goods not claimed by the defendant. Ibid. Proi)erty replevied was claimed by the defendant in the name of " Barry" instead of "Berry:" the property was found to be in the claimant, and the bond was assigned to liim by his proper name. Held, That the mistake Avas im- material. Ibid. •i3_Wlioii bond csfiinot be nsfjiigfiicd to defendant. ^Vhen on a writ dc projmetate probanda, the finding is fni uie defendant, the replevin suit is terminated and the replevin bond cannot be assigned to the defendant. Pol- lock V. Gardiner, 2 Kerr 655. •21 One •.niely only— Objection cannot be taken by plaintiff. A replevin bond with one surety is sufHcient, and may be aF:igiioii. Though the sheriff might object to take such a lion.!. .1 the defendant in the replevin suit to take an as- signment of it, the plaintiff in the ouit cannot take the ob- jection. Taylor v. Burpee, 5 All. 191. '2.) -Handwriting: — Proof— Assignment— Reqnest— Dc- t'oiidantS attorney. In an action by the assignee, proof of the obligor's hand- rating is sufficient, without calling the subscribing wit- ness. The bond may be assigned at the request of the defendant's attorney. Ibid. '26 — Action on bond - Proseruto withont rocoediii$;<« -Pow4>i' of'.rii«l^c — Datlla^'<>s. The provision in the Act 4 Wm. IV. cap. 38, authorizing the Court to give rLlief in actions on replevin bonds, hav- ing been omitted from the Act. 13 Vic. cap. 53, which re- pealed the former Act, a -Tudge has no power, except under special circumstances, to stay the proceedings in such an action : where it is brought for the breach of the condition of the bond, to prosecute the replevin suit with- out delay, and the plaintiff's proceedings are regular, tlie Court will not enquire whether the defendant in the replevin suit has, or has not sustained damage by the breach of the bond. Betts v. McGowan, 1 Pixj. 155. SS—'I'liird pai'iy claiiiiiii;; |»i'0|><>rty— Eff(>ct of a!>i<>ii;;ii- iiieiit of l»<>ii«l aii«l i'<>eo%'4>i-y by. Qtuerc, Whe^lier in replevin, where a third party claims the property and his claim is found good, and he takes an assignment of the bond and recovers upon it, that satisfies the bond, or whether it can afterwards be assigned to de- fendant in the suit, in case he recovers judgment, or ii plaintiff fails to prosecute the action ? Ulieeler, (ihh'uiiu'c, cC-c, v. Steirayt, 3 Pii(i. 398. »S'ce Replevin 41. Vanwartw SJiejiherd. 39— AII«>|u;^atioii of dainaK:*' I'lcading^ to. Where a replevin bond is assigned to a claimant, incon- sequence of his claim of property being found good, and an action is brought on the bond, an allegation of special dam- age cannot be pleaded to, because plaintiff is entitled to recover nominal damages on proof of the finding in his favour, and damages are not the gist of the action— per Allen C. J., and Weldon, Fisher, and Duff, J. J.— Wet- more J., dvhitantc. Wheeler, assujiiee, v. Stewart, 3 Pu(i. 398. In an action on replevin bond, the property in the goods replevied cannot be put in issue ; neither can the validity of the inquisitic n of the Sheriff's Jury under a writ (/'' pro. proh., which becomes a quasi record, be tried in such an action. Ih. BOND. 265 30_Stiiyiii||? proceedings— Power of Court or .riidg:e. The provisions in the Act 4 Wni. IV, cap. 38, authoriz iiif' the Court to grant relief in actions on replevin bonds having boon omitted from the Act 13 Vic. cap. 53, which repealed the former Act, the Court or Judge has no power to stay proceedings in such an action where it is brought for the breach of the condition to prosecute the replevin suit without delay, and the plaintiff's proceedings are regu- lar. The Court cannot adjudicate in a summary way, as to say that no damages have resulted. The controlling power of the Court over proceedings in suits can only be exercised where special circumt;tances arise to warrant it. Bctts, assiijnee, cOc, v. McGowan et al, 1 Pug. 155. Sl—Several plniiitiflTs. Where there are several plaintiffs in replevin, it is not necessary that more than one should join in the bond to the Lheriff. Wheeler, assignee, d-c, v. Harding, 3 Pug. 398. 3>i— To whom bond assigrnablc. A replevin bond conditioned to prosecute the suit against C. D. — (the defendant named in the writ of replevin) — '' or some other person," cannot be assigned under the RepiCvin Act — per Allen, C. J ., and Wetmore and Duff, J. J. Wekloii and Fisher, diss. lb. D Administration Bond. 33— Application to pnt in suit. In an application to put an administration bond in suit , the Court will not determine whether there has been a breach of the bond. If the applicant make out a,})rima facie case of breach, and that he is a proper person to sue for it, he is entitled to an assignment. In re Hunter, 1 Han. 233. An assignment will not be refused though there is a variance between the bond and the form given by the Act. IhhJ. The counsel moving for the assignment is not bound to sIkw that he is autliorized to make the application. In re H/aifcr, 1 //(///. 238. 17 266 BOND. It is sufficient to shew the suhstance of the proceedings against the administrator in the Probate Court without pro- ducing a copy of them. Ibid. 34— Brcarli— IVon-payincnt of S'(,'t" Pleading I. 43. F Sheriff's Bond. 3§— Action on. In an action brought on bond given by sheriti umkr Bev. Stat. cap. 131, (Consol. Stat. cap. 125,) it is i30t necessary that it should appear on the face of the judgmeEt obtained against the sheriff that the action was brouglJt for a breach of the duties of his office ; and it is sufficient i such breach of duty is set out in the action on the Iiobc and proved. BOND. 267 Where a sheriff is directed to levy under a ./t fa a certain amount, and he seizes and sells for a greater sum, he is guilty of a breach of the duties of his office, and his sureties are liable on bond given under statute. Miller v. Weldon, 2 Pug. 227. G Miscellaneous. 39— Impeached for fraudulent representation- What defendant may prove. Whero a bond given for the purchase money of a lot of land, is impeached for fraud, on the ground that there was a fraudulent representation at the time of the bargain, and previous to the giving of the deed, as to a parcel of land in- cluded in the purchase, it must be affirmatively shewn as one of the requisites of such a defence, that the deed does not in fact contain the land bargained for. Sisson v. Meri- ihew, 3 Ken 284. 40 -Escrow— Non-execution by one of the obligors* The condition of a bond recited that five persons named as obligors, had agreed to secure the payment of a sum of money to the plaintiff ; one of the persons named did not • execute the bond. Held, That in the absence of any circum- stances attending the execution, beyond the mere fact of one of the parties named not having signed it, there was not buiiicient evidence to be left to the jury that the bond was delivered as an escrow. Held (dso, That it was the joint bond of the obligors, who executed it, and that the omission of one of ihe persons named in the bond to execute it, (lid not render it merely the several bond of each obligor who did. Keatory. Scovil, 3 Kerr 6-17. lI-< r»wn bond— Neg^lect to enforce payment— Sure- lii'M— 4ppli«Mtion for relief. One of the conditions ot a bond given to the Crown by a deputy pi-stmaster, required him to give thr^ monfhs' notice to the postmaster-','eneral of his intention to resign iiis office, and to pay ai' Bums of money chargeable against 268 BOUNDAKY LINE. him as postmaster. At the time of his resignation, a post- master was a defaulter, and died insolvent, about twenty- one months after. No proceedings were taken against him to enforce payment, though he was applied to several times, and promised payment, and no notice of his indebtedness was given to his sureties till after his death. Held, That his sureties were not entitled to be relieved from the bond under the 33 Hen. VI 11. cap. 39, sec. 79. The (Jnccu v. Hammond and another, 1 Han. 83. 4t2— Corporation— Bond to — Conilition — rVotice— Seal of conipstiiyinot necessary. See Principal and Surety 1, 43— Olili^ees— Action by one. A bond conditioned for the payment of money to A. or B., or either of them, cannot be sued on in the name of one of the obligees, unless the other is dead. See Ilazenv. Driimmond, 4 All. 267. BASTARDY BOIVD. Action on. See Action at Law X. 6. BOIVD AND ^¥ARRAIVT OF ATTORWEV. See Warrant of Attorney. BOUNDARY. See Crown Grant. BOUNDARY L,INES. 1— Ag-reenicnf as to— Binci'liiiiio(l iiinrk*<«— Controlling^ coni'scs. Where the side line of a grant to H. was described as north 107 chains, or to the northwesterly angle of A's grant, such angle being capable of being ascertained, con- trols the course and distance of the side line of H's grant. ILnmm v. Malioneij, 2 I Ian. 11. Dispute si» to boundary— titate. See Trespass 11. 2. BRIBER! AIVD CORRUPTION. Set Election Law. BRITISH IVORTHgAMERlCA ACT, l§67. 1 — Provincial Cegislatnres— Powers of— Insolvency. Insolvency being one of the subjects upon which the ex- clusive right to legislate is vested in the Parliament of Canada, the Legislature of New Brunswick has no right to BRITISH NORTH AMERICA ACT, 1807. 271 pasR an Act relating thereto, since the "British North America Act " came into force. Rag. v. Chandler, 1 Haii^ 548. 'j— liiipi'iMOiiiiK'iit for debt. Tho Act 33 Vic. cap. 22, relating to imprisonment for (kl)t, does not come within the prohibition of the Olst sec. of tilt' British North America Act, 18r)7, paragraph " Bank- ruptcy and Insolvency." Valentine v. Ilazleton. Equity 1870.' (.SVt- Practice in Equity 22. Same case.) 3-Ksiil\vayM. The Provincial Act 33 Vic. cap. 47, authorizing the issue of Debentures to the Ploulton Branch Railway Com- pany, to aid in the construction of a railway from Houlton, in the State of Maine to the New Brunswick and Canada Railway in this Province. IlehU To be beyond the powers of the local Legislature under the "British North America Act, 1867." Sec. 92. Sub sec. 10. Ex parte Marks, Hit. T. 1872. Si'c Infra 13. Regina v. Dow. I Plaintiffs were incorporated in 1851 by an Act of the Legislature of New Brunswick for the purpose of con- structing a railway from St. John to the boundary of the United States ; the stock not having been subscribed, nor the assessments on the stockholders made according to the conditions of the Act, and it being doubtful whether sub- scribers for stock were liable to pay the calls, another Act ^^i Vic. cap. 54) was passed to obviate the objections — de- claring mwhat manner the subscribers for stock should be Hable. IleU, That this Act was not beyond the powers of the local Legislature under " The British North America Act." See. 92. Sub Sec. 10. E. and N. American Rail- *(•".(/ Co. v. Thomas, Mil. T. 1872. •5-Biaiioli Pilots St. John— Re^jciilations— Authority to ■nakc. By Act 3 Vic. cap. 70, the Corporation of Saint John IMAGE EVALUATION TEST TARGET (MT-3) .V^ .if<^v 1.0 I.I 1.25 itt 1^ 1 2.2 ^ lis IIIIIM 1.8 14 111 L6 III vj ^ /a ^ -^ ^<^ % ^> '>/ > /A 'W '/ Photographic Sciences Corporation ,-\ <^ '^ :\ \ iV ^ V 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) S73-4503 *« 272 BRITISH NORTH AMERICA ACT, 1867. was authorized to make laws and ordinances for the regu- lation of the Branch Pilots of St. John. Under this autho- rity by-laws were made before the passing of " The Brit- ish North America Act, 1867." Afterwards, in 1869, the Corporation made another by-law relating to pilots. FL'ld That the regulation of pilotage belonged to the Parliament of Canada under the Gist section of the British North America Act, and (per Ritchie, C. J., Allen and Weldon, J. J. that after that Act came in force, the powers of the Corporation to make by-laws relating to pilotage ceased, and therefore the by-la\" of 1869 was ultra vires (per Fisher and Wetmore, J. ' jhat under the 129th Section of the British North Amerjoa Act, the power of the Corporation to make by-laws undei .i.r \ct 3 Vic. cap. 70, was continued until the Parli.-imr;^ of Canada legislate on the subject, and therefore the by -law was valid. Reri. v. Peters, Ilil. T. 1873. 6— Dischargee rrotn imprisonment— Insolvent Act- Trader. Defendant was in custody on the first of October, when the Act 37 Vic. cap. 7, abolishing imprisonment for debt came in force, and applied for his discharge under the Act. It was objected that the Act was ultni vires, but the Court held otherwise — limiting their decision, however, to the present case, in which it was shewn the defendant was not a trader and not subject to the Insolvent Act of 18G9. Armstrong v. McCutcken, 2 Pug. 381. 7— Act of Provincial Legislature altcrinv iraol limits. An Act of a Provincial Legislature altering the law es- tablishing gaol limits, does not so relate to insolvency as to be ultra vires under British N. A. Act. McAliaoii, (issi'inee, dc, V. Pine, 2 Pug. 44. S— Imposing: fines for selling liquor without license. An Act of the Local Legislature, passed since Confeder- ation, imposing fines and penalties for eelling liquor, is not ultra vires, and although there may be a question as to the BRITISH NORTH AMERICA ACT, 1867. 273 power of the Local Legislature to direct the manner in which the fines may be recovered, the excess only — that is, the mode of recovery would be void. Regina v. McMillan, 2 Piifh 110. 9— Liquor— Pi'ohibiliiiy; f«al«> of. A Local Legislature has no power since the British N. A. Act, 1867, to pass a law directly or indirectly prohibiting the manufacture or sale or limiting the use of spirituous liquors. Rcffina v. Juntices, dc, of Kinps Co. 2 Puf/. 535. 10— i§alc of spiritnoiif^ liquors. The Local Legislature has no power directly or indi- rectly to prohibit the sale of spirituous liquors, such power belonging exclusively to the Parliament of Canada. Ex parte Mansjiehl, 2 P. cO B. 56. II— Iniprisonniciit— Order of Ju.ommuni- cation therewith through a porch, and there was no other entrance to the dancing-room — Held, That it was a part of the house, and that the proprietor was liable to a iine under a by-law of the City of St. John, for allowing music to be played therein. Ex parte Harvey, 5 All, 264. BY-LAW. 279 7— License to sell fresh meat— St. lohii— Freemen. By section 8 of the by-law of the City of St. John, passed in July, 1876, it is provided that the Mayor may license freemen, tfec.,to sell fresh meats, &c., for which license the sum of $20 shall be paid to the City Chamberlain. The 9th section imposes penalties upon persons other than licensed butchers or persons licensed under the 8th section, who shall sell fresh meats, &c., in small quantities, either in the market or elsewhere in the city. M., a freeman of the city, was convicted of an offence against this by-law. Held, That the by-law in question was invalid as against freemen of the city, and that the conviction was bad. Ex parte Minnehan, I P. & B. 228. 8— Corporation of St. John— Punishment by imprison- ment—Invalidity of i»y-la\v. By 33 Vic. cap. 4, sec. 3, the Mayor of Saint John is authorized to license persons being natural born British subjects, and also such persons as shall become naturalized or be made denizens, and also aliens, the subjects of any country at peace with Great Britain, to use, &c., any art, trade, &c., or engage in any profession, &c., within the City of St. John, on payment of such sum of money as may be fixed by the Common Council. By the fourth section, the Common Council is empowered to fix the amounts so to be paid, by by-laws ordained for that purpose, and to im- pose penalties and forfeitures for any breach of the by-laws. By the filth section, all persons not being free citizens of the city are prohibited from using any art, trade, &c., in the said city, without being duly licensed thereto, as in the said Act provided. In May, 1871, the Common Council passed a by-law, under the authority of the said Act, by which the amounts to be paid for licenses to do business were fixed and determined, and by which it was ordained that any person who should use any art, trade, &c., or engage in any profession, &c., without being duly licensed, should forfeit and pay twenty dollars for each offence. The sum was to be sued for, prosecuted and recovered in the name of the Chamberlain of the city. It was further pro- fi 280 CANADIAN COURT. vided, that in default of payment of the penalty, the offen- der was to bo committed to the common gaol of the said city for the space of ten days. B. T. was tried before the Police Magistrate of St. John on the charge of practising as a physician without a license, contrary to this by-law. The suit was brought in the name of the Chamberlain. On the trial, the evidence of B. T. was offered and rejected- Held, That the l)y-law was bad, as it authorized uhe im- prisonment of the offender in default of the payment of the penalty, the power to punish breaches of the city by-laws by imprisonment not being given by the charter, nor in ex- jjress terms by 33 Vic cap. 47, and the by-law not being in accordance with 6 Vic. cap. 35, sec. 8, which authorizes imprisonment in case no goods or chattels can be found whereon to levy the penalty. A Municipal Corporation cannot enact a by-law subjecting a party to imprisonment, in default of payment of a penalty, without express author- ity from the Legislature. The proceeding for the recovery of the penalty was in the nature of a civil suit, and not of a criminal proceeding, and the evidence of B. T. was impro- perly rejected under 19 Vic. cap. 41, (Consol. Stat. cap. 46.) Ex parte Trask, 1 P. (O B. 277. CALLS. Sec Assessment. Winding up Act. IVotc may be grivcii for assessment due on calls. See Bills and Notes II. 9. Liability ol Equitable and beneficial owner of stock to repay calls. See Equity. Botsford v. Crane. CANADA. Jurisdiction— Seizure of timber. See Timber. CANADIAN COURT. See Judgment III. Sec Practice IV. CARRIER. 261 CAPIAS. initiiioiiipr. See Identity. WronK Nniiic— Pl«>aiiii.v— Uahility. The Commissioners of E. and N. American liailway, iu the absence of any regulations api)roved by the Governor in Council limiting their responsibility for the safe conveyance of goods and luggage, are subject to the same liabilities as common carriers. JVllUa v. Tlu' ('Dutin'tHHionrni of the Euro- 2)e(ui (Did North Americnn Railirdi/, 2 Ilan. 157. 5— Delivery to rarru'i*— Aeeeptniice for v<>iii'y not coiii|»let«'— LosiM. Plaintift" sent boards alongside of defendant's vessel to be shipped, but before being taken on board, they had to be surveyed and classified by the plaintiff, and before this was done they were stolen. Held, That until the survey and classification, they were not in defendant's possession, and be was not liable for their loss. Cmhimj v. Roberts, 5 All. 290. Y— K«>Kli|j:cn<>c of »»«>rvaiiti§>. A common carrier is liable for the negligence of his ser- vants in taking goods on board his vessel in his absence, though he may have directed them not to receive goods— the plaintifif having no notice of such instructions. Stmt V. Morrison, 5 All. 290. §— Moifli^eiice in acting ini|»i'o|>«i' K<^ai'. In putting fi large cask of brandy on board a vessel from CASUAL EJECTOR. 283 a wlmrl, a carrier used can-hooks. In lowering the cask from the wharf one of tlio chains (hy which the hooka held the cask) broke and tlie cask fell into the hold aua was destroyed. Held, That it was negligence to use can-hooks iusti'iid of slink's to lower the cask. Street v. Morrison , K^xt. r. 18(J'2. 0— Ciii'i'icrM— I^OM*) or l»iiKK»K<' '^'^■■■<*K<'^« The plaintiff being a passenger on the detondant'u rail- way, j;ave his baggage in charge of their servUi i^ The baf,'j,'ftgt^ having been lost, the plaintiff sued for the \ tlue of articles, and damage sustained in consequence of such loss, both in expense incurred therel)y and loss of une. Tlelrf, that the damage must be confined to reasonable exjnses of searciiii.^ for the baggage, snch as telegrapiiing, cab liiio in going to the defendant's office, and such like exijenses. Morrison v. The European d N. A. liif. Co., 2 10 In an action against a common carrier forthe loss of f^ou Is, !i jury is not justified in giving a verdict of greater damages than the value of goods actually proved to have ken contained in the case, and the maxim onmieal ^iviii being iiicorporuted in the St. John Police Act V2, Vic cap. 18. Ex parte Harleij, 5 AIL •2(54. 10— A><»nient— -Water C'oinini. See Commissioners. A'.r parte CdUiomt. II— Mioii or Fact. A certiorari will not in general be grante I, when the , case in the Court below depends on a mere question of fact. Lordv. Turner,^ Han. 13. I»2— Koinedy by Review. Where a mode of reviewing the judgment of an inferior Court is pointed out by statute, the Court will not grant a ci:rth>rr//ora;'i had been served only four days before the first day of the term at which it was returnable, the Court refused to mala the rule absolute, and enlarged it till the next term. Ex parte Lt/nns, 6 AU. 409. 7— Socui'ity for costs — S<>iiooi Act— Provisions ol" other Act— Application of. The provisions in the School Act 21 Vic. cap. 9, sec. 16, that the proceedings for levying and collecting assessments shall be the same as provided for County and Parish rates, applies to the mode, machinery and forms by which these rates are levied and collected, and does not require security to hi- giveu for costs before a certiorari is granted to remove the assessment, nor give an appeal to the Sessions, as pro- vided in the esist ol ( i inily rates by the Rev. Stat. cap. 53, sees. 0, 22. Ucij. V. Jt4>iit au:«*iit— Tnkiiiir out miiiiiiiiuiis — Oii«> Niiflicioiit f'oi- iitloiidnii«;e. See General Rules 9, 03. 4;ilATTEL. I iir4'W:i«*t<'r<>«l sliip — 'I'niiisfor — Rov4>fi>tiiig: proporly— liVidoiiro. See Shipping Law 6. Ti'c«>«< •<»«>vor(>(l ri'oiii laud. Sec Assumpsit 49. Iflanurc, a 4;liatt4>l. Sec Trover 15, 10. Buildiiijjf plac<>4l on land. See Fixture. €HE€K. 1 An unstamped check drawn upon a person, not being a chartered or licensed banker, or the manager of a savings bank, is void under the Canadian Statute 31 Vic. cap. 9, and cannot be received as evidence of payment. Gancly v. Staples, 1 Hau. 015. 2— Initialing: of by «>asliici'— Acceptance— Set-oft. In an action on a bill of exchange, the defendant claimed to set-ofi' the amount of a check payable to " bearer," drawn by one L. upon the plaintiffs, several years previously, upon which their cashier had written the initials of his name. In 1807, L. gave the check so initialed to G., who kept it till a few days before the trial of this cause (1871,) and then gave it to the defendant. Held, 1st. That if the check could be treated as an inland bill of exchange, the initialing of it did not operate as an acceptance within the statute. 2nd. That even if the initialing of the check could operate as an agreement by the plaintiffs to pay the amount o L., it was only a chose in action which the defendant could not avail himself of in this suit. Commercial Bank V. Fleming, 1 Pufi. 36. «^ CHURCH OF ENGLAND. 295 CHILD. See Illegitimate Child. €IIO!iiE IN AC'TIO\. Kr4;ov:iiiiition of am««iKiiiiioiit. B. agreed, by a note in writing, to pay A. t'20 in lum- ber, by a certain day, before wliioh time A. assigned the contract to C. TFdd, That B. wap r.ot bound to recognize the assignment, but might deliver the timber to A., which would be a good discharge. S<'c Green v. IVilliston, 3 Kerr 58. (iiiM'k o|M>rntiiiK n» an n^reciiicnt hy plaiiilifl to pay » Ml on lit. See Check 2. CHIFKC 11 OF F::VftLA!%D. 1— LaiKl K^i'nntcd uh a Olcb<> — Ti-opatioii of Kortor. Sec Election. Ex parte Beck. CIIURCJII COKPOKATION. See Church of England. €1IIJR€II l^ARDKNS. Sec Church of England. CITY COURT. Prnctico in jiKlKinoiit by «Icranlt. A practice in the City Court of St. John of awarding to the plaintitT on judgment hy dbfault, the amount claimed in his particulars of demand filed at that time, without any proof of the amount, or any copy of the particulars served on the defendant, is had, and. cannot he rendered valid hy the length of time the City Court has been in existence ; neitlier is this practice confirmed hy the Act 5 Wm. lY, cap. 45, sec. 7, never having been allowed by any superior legal tribunal before the passing of the Act. Allen V. M(tck(iy, 1 AIL 365. Juri$««li<;ti4»ii— K4>iii>o of i>sirti<>M oiitMidt^ tlie city. The City Court of St. John has jurisdiction in suits for the recovery of sums under X5, though the defendant may not reside in the city, but has baen served with pro- cess there. Ex parte Ligraham, 2 Pug. 306. CITY COUNClL,L.OR. EIr ii|».iii«lKiii4>iit. By the terms of a cognovit it was agreed that in default of payment of a certain sum on a particular day, with costs to be taxed, the plaintiff should be at liberty to enter up judgment and sue out execution for such sum and costn « //('/(/, That there war. no forfeiture of the cognovit until the costs were tpxed, and tlio amount made known to thi.; defendant. SiiodgniHs v. IViison, 1 All. 873. 3— Waivoi*. A cognovit may bo given before declaration filed, and it a waiver of any irregularity in the previous proceedings. McNamec v. (rBrieu, 4 All. 548. 9Iotioii to HvX si$«ide— DisimiK!!iitl— (Jo<>4t)«. See Costs 85. Costsi. Set' Costs 19. €OLLF.€TOK OF CUSTOMS. Liability lor accidental tire (l<;Mtroyiii{; y^ood^i detained after reqiiei^t. Sec Action on the Case I. 1. OfIii«:h\vays. See Justice of the Peace (Summary Conviction.) See Action at Law (Notice) XL 13, 14. Highways. Trespass V. 6. Of Insolvency— Affinity— Disquaiificiitioii. A commissioner appointed to examine confined debtors, 800 COMMISSIONER. was held disqualified from holding an examination in a case in which the plaintiff was a first cousin to his wife. Peck V. Barbarie, 1 Hap. 528. Comiiiissioncrs of European and IVorth American Railway— Duly of— Daniag^e to land— Prevention of— Rig^lit of Action against. See Damages 30. 1— Ot ScM ei's. The acts of Commissioners of Sewers appointed under the Act 22 Vic. cap. 53, are not judicial acts, therefore they are not disqualified from assessing the proprietors of land for the purposes of the Act, by reason of their being interested as owners of land in the district assessed. (Ritchie, J., (Ussentiente.) Ex parte Calhoun, 5 All. 454. 2 An owner of land in Germantown Lake District is disqualified from acting as a Commissioner of Sewers for that district, the duties of such Commissioners under the Act 22 Vic. cap. 53, being of a judicial character — per Ritchie, C. J., and Weldon, J. Per Allen, J., That the Court was bound by the decision in ex parte Calhoun that the Commissioners were not disqualified by reason of their interest. (But see Act 32 Vic. cap. 73.) licg. v. Commis- sioners of Germantown Lake, 1 Han. 343. A Commissioner of Sewers who is interested in 3 a contract for the performance of work done under the Com- missioners, is disqualified from acting with the other Com- missioners in the approval of the work : and if he does so, an assessment on the proprietors of land, in which an amount for payment of such work is included, is bad. Ihid. -The intention of the Act 32 Vic. cap. 73, being to remove the disqualification of Commissioners of Sewers, by reason of their being interested in the lands in the District to be assessed ; it necessarily includes the interest of a Commissioner arising from relationship to a proprietor of such lands. Ex parte Peck, Hil. T. 1871. COMMISSIONER. 301 5— Swearing in of— Astiessincnt without— EflToct. By 1 Rev. Stat. cap. 17, Commissioners of Sowers shall be sworn into office within one week after their elec- tion, or shall be deemed to have refused. Held, That the Act was imperative, and that a Commissioner elected on the 2nd August could not be legally sworn in on the 8th September — the office at that time being vacant ; and that his joining with the other Commissioners in making an as- sessment, rendered it void. Re;), v. Commissioners of Hope- well, 1 Pug. 161. 6 Seville, — That if an objection is made to a pro- posed assessment by the Commissioners of Sewers, and some of the proj)rietors of lands in the District give an un- dertaking to the Commissioners to indemnify them against all damages and costs in case they make the assessment, and they afterwards proceed with it, the assessment will be set aside. Ibid. 7— €oniQUission<>i'»> of Sew^crs— Appointment— Power of Court to Assent— Interest— Disqualification— As- •sessnient-Iflistake— Judicial Acts. I The Act 22 Vic. cap. 53, authorized the Governor in Council to appoint Commissioners of Sewers for the Germantown Lake District, in the County of Albert ; and gave power to the Commissioners to cut a canal to drain the lake and adjoining lands, to agree with the owners of any lands taken for the purpose, as to the damages, and to tax and assess the owners of lands in the district, to defray the expense of draining, dyking, &c. Under this Act, Commissioners were appointed, who owned lands within the district to be drained. Held, (Ritchie, J., dis- senting). 1. That even if the Commissioners from inter- est, as owners of land in the district, were disqualified from performing some of the duties of the office, they would be qualified to perform other duties ; and the Court had no power to annul their appointment. 2. That the making drains and dykes, apportioning assessments to pay the ex- penses, and agreeing with the owners of land as to dam- were not judicial acts. 3. That if the interest of the M!i 302 COMMISSIONER. Commissioners was a disqualification for the performance of any particular act, the proceedings arising from that act might be set aside. 4. That under the power given to the Commissioners by the Act, and by 1 Eev. Stat. cap. 67, and 33 Vic. cap. 14, they might assess to defray the ex- penses of purchasing a mill ; erecting a dam across a river; making surveys, and for interest on money borrowed by them (these being necessary for carrying out the objects of the Act), and for their own fees. Ex parte Calhoun, 5 All. 454. 2 The restrictions sections 5 and 10, of 1 Eev. Stat. cap. 67, as to the notice of executing works, and ob- taining the consent of the proprietors of land therefor, do not apply to Commissioners appointed under the Act 22 Vic. cap. 53, but only to those who derive their authority solely from the Rev. Statutes. Ibid. 3 A. was assessed as a proprietor of land in the Lake district, but it afterwards appearing that he had pre- viously conveyed his land to B., the Commissioners struck A.'s name out of the assessment, and substituted B.'s. A certiorari to bring up the assessment on this ground at the instance of A. was refused, it not appearing that he had been injured by the mistake, or that the Commissioners in- tended to enforce the assessment against him. A certiorari was also refused on the application of B. — as the alteration deprived him of no right which he was entitled to — his land being justly liable to the rate. The assessment of other proprietors of land in the district not being incieasedor altered by the substitution of B.'s name in the place of A.'s, that is no ground for interfering with the assessment on the application of such other proprietors. Ibid. Acting ill ciipacity of— taking: a«»sessineiit. See Will. Kiiapp v. King. Coiiiinijssionor to take aflidavit<« in Supreme Coiiit- Autliority to adiniiii^iter oatii««. Sec Criminal Law II. 21. lis COMMON SCHOOL ACT, 1871. 303 Commissioners of l¥atei' Company— Ovimer of land- Compensation — Assessment of Damages — :^ro- ceedings— Construction of Act "I \¥m, IV., cap. 36 — Application for ]flandamus— Failure— Re- newal of Motion,; See Mandamus 11. coiniinissioiw merchaivt. See Warranty 5. COHIMITMEWT. See Justice of the Peace. COMIflON CARRIER. See Carrier. COMMOIV COUNTS. See Assumpsit. Recovery under. See Assumpsit. Coiiii!«ei not claiming under common count in open- ing case— Right to recover under particulars. See Trial Carriek v. Atkinson. COMITIOIV SCHOOL ACT, I8T1. Ti-u*j>to(>!<< -Duty— Inspectors^ siui jority. It' a requisition is made to the Trustees of Schools by a majority of the ratepayers of a district, to call a special meeiing for a purpose authorized by " The Common School Act, 1801," it is tlieir duty to call the meeting under the 28 sec. of the Act ; and if they refuse, the Inspector ia authorized to appoint new Trustees, under the 37th sec. of the Act. Ex parte Gilbert, 1 Purf. 231. Inspector— Appointing trustees. The Inspector of Schools is authorized on a proper requisition made under the 37th sec. of " The Common 304 COMPOSITION DEED. School Act, 1871," to appoint a new Trustee, either where a Trustee elected declines to accept the office, or, where after the acceptance of it, he declines to do his duty. Ex parte Killrv, 1 Png. 219. Constitutionality — IVon-Ncctarian. The Parish School Act, (21 Vic. cap. 9,) conferred no legal right upon any class of persons, with respect to denomina- tional schools ; therefore, " The Common School Act, 1871," which declares, that the schools conducted under its pro- visions shall be non- sectarian, is not itltra vires, as being contrary to " The British North America Act, 1867," sec. 93. Ex parte lienaud, 1 Pug. 273. Regrulations— GfTect of. The constitutionality of " The Common School Act, 1871," cannot be affected by any Regulations of the Board of Education, made under its authority ; and, Seinblc, If the Board of Education have made regulations which they ought not to have made, or have not made regulations which they should have made — it is a case within sub-sec. 4 of " The British North America Act, 1867," sec. 93. Ibid. Appeal to Inspector. See Appeal 15. Assessment for school purposes. See Assessment II. €oitiPARiso]v OF ha:\dwkitiiv«. " Evidence XI. 16. Practice in Equity. COIflPETElVCY. ** Witness. COITIPOSITIOIV— AGBEElflENT. " Bills and Notes V. 9. €OI?IPOSlTION DEED. " Deed. Insolvent Debtor. CONDITION PRECEDENT. 305 eOITlPROIVIISE. Of suit by attorney. See Attorney V. 7. COIVIPVL.§ORY LIQUIDATION. Petition— Hearing of before Judge of County Court. See Insolvent Act of 1879. CONDITION. See Covenant 8. Deed I. 25. Pleading. Crown Grant II. Insurance. 1. CONDITION preci:dent. See Vendor and Purchaser. " Landlord and Tenant. 1— Loss payable after proof. The following clause in a marine policy of assurance, viz : " and in case of loss, such loss to be paid in sixty days after proof of loss and adjustment, and proof of inter- est in the said assured," has the operation of a condition precedent ; and the judgment was arrested in an action by the assured against the insurer for the want of any aver- ment in tbie declaration, that such preliminary proof had been furnished to or dispensed with by the defendant. Wat' son V. Siunmers, 2 Kerr 101. Arbitration before Action. See Action at Law II. 3-Tender of Deed. The defendant gave a bond to the plaintiff for the price of land, conditioned to pay £50 on the 1st June, 1849, and the remainder in three annual instalments ! and on mak- ing the first payment and receiving a deed from the plain- tiff, to give a mortgage for the balance. Held, That a I I > i1 ii' i : \ 306 CONSIDERATION. tender of a deed was not a condition precedent to the right to recover the first instalment. Dykeman v. Craig, 2 All. 266. 3 Where A, agreed to sell B. a piece of land, and B. agreed to pay dGlOO for the same on or before 1st May, on payment whereof A. agreed to give B. a deed free from all incumbrances. Held, That A. was entitled to recover against B. for non-payment of the money, without proof of tender of the deed on or before the Ist May. Han/ord v. Gidney, 1 Kerr 82. 4— Payment of costii -Insolvent Debtor. Payment of costs on failure of a previous application, not made a condition precedent to a second application. See McFarlane v. Gordon, 2 All. 201. Contract— Driving logs— Performance. See Pleading I. 23. Award— Concurrent Acts. See Arbitration V. 10. Cognovit— Taxing Costs— Forfeiture. See Cognovit. CONDITION IN RE^^TRAINT OF MARRIAGE. See Will 8. COIVFESSIOW. " Cognovit. Criminal Law. COIVFUSIOIV OF GOODS. •' Trover 9,6. Replevin 20. CORfSEMT Rl LE. '' Ejectment VII. CONSIDE RATION. " Assignment. Assumpsit. Bills and Notes. Contract. CONSIDERATION. 307 Declaration. Deed. Fraudulent Conveyance. Guarantee. Insurance. Pleading. Usury. 1— Executory promise— tJoinpeiisation for injury. An agreement, whereby B. who had permission to cut down a certain quantity of pine timber on public land be- longing to the Crown, assigns his right and interest to A. by way of compensation for an injury he had done to A., being entered into without the privity or assent of the Crown is illegal and void, and no action can be maintained by A. against B. for continuing to cut timber on such land contrary to his promise contained in such agreement. The assignment being void, the promise was no more than an executory accord, for the breach of which no action lies . Sharp v. McKeen, 2 Kerr 524. 2— Forbearance. On motion in arrest of judgment. Held, That the agreeing to forbear sending a substitute to exercise the plaintiff's rights in a schooner, of which he and defendant and others were possessed as part owners, is a good con- sideration to support a promise by the defendant to pay the plaintiff his proportion of the profits. Murray v. See- lyi:, '6 Kerr 312. 3-V.iliie— Equality. In order to constitute a valuable consideration to sup- port a conveyance, it is not necessary that the money paid should be of equal value with the property conveyed ; pro- vided the transaction is bona, fide. Payson v. Good, 3 Kerr 272. 4-Mutuality— want of. A. by deed poll agreed to make and haul all the timber he could find on B's permit, for which B. was to allow him : ' 808 CONSIDERATION. whatever the timher sold for, after deducting B's supply bill and expenses, and that all the timber got should be the property of B. Held, That there was no mutuality, and that B. acquired no property in the timber without a delivery. Coomhcs v. ILithciray, 3 Kerr 592. 9— lllei^nl foiilrn<;t— l§iil>qiiciit i*«>|*«>hI of Stutiite. A sale of liquor (not bj' a licensed 'nannfacturer or agent) being illegal by the Act 15 Vic. cap. 51, is not made good by a subsequent repeal of the Act. Dever v. Corcoran, 3 All. 338. The original contract being illegal, a promise to pay, made after the repeal of the Act, i8 void for want of a con- sideration. Ibid. Qiuere, If the liquor had been in the defendant's pos- session at the time of the subsequent promise, whether the plaintiff could have recovered ? Ibid. 6— Valuable coiiifiideration— Deed. To constitute a valuable consideration to support a deed, it is not necessary that it should be a money con- sideration: becoming bail for the grantor is sufficient. Crockford v. Eqidtahle Insurance Company, 5 All. 651. 7— Lien— Parting witli. Parting with property on which the plaintiff has a lien, may be a good consideration to support an express prom- ise, but not an implied one. See Hartley v. Fisher, 1 All 439. 8— Evidence— Explanatory of €on»iideration— Admis- sion of— Contribution. The plaintiff having purchased land from D. in May, 1845, took a deed thereof to himself, and gave a mort- gage thereon for the purchase money, as was stated by D. at the trial, and also the joint and several promissory notes of himself and the defendant, no stipulation having been made with D. for the security of the defendant. After the purchase, the defendant claimed and exercised a part-ownership on the land. Afterwards, in March, 1846, the plaintiff gave a conveyance of an undivided moiety of CONSIDERATION. 309 the laud to the defendant, expressed to be " in considera- tion of t'150 to tlie plaintiff in hand well and truly paid, the receipt whereof was thereby acknowledged." The sub- scribing witness was admitted to state that no money was paid at the time of the execution of the deed from tlie plaintiff to the defendant, but nothing whatever was then said about the purchase from DeVeber, or the defendant's joint liability on the notes. The plaintiff having after- wards paid the amount of one of the notes to D., brought an action for contribution on the ground that the purchase was made from D. for the joint interest of plaintiff and de- fendant, and the defendant was a principal and not a surety on the note. Held, (Parker, J., dissentiente,) That he was entitled to recover, and that it might be inferred from the circumstances that the original purchase was on joint account ; and that the plaintiff's acknowledgment of payment for the moiety in the deed might be explained by circumstances tending to shew that the condition was made up of the defendant's outstanding liability on the note, so as to leave it a question for the jury to say whether the consideration was so satisfied. Read v. McClelan, 1 All 81. 9— SlicrifIN sale of goods— Agreement as to bidding- Recovery of difference on re-sale* Defendant being an execution creditor of the plaintiff, agreed with him that two persons named, were to bid in certain articles at the sheriff's sale, and if they were not bid up to near their value, that these persons and the plaintiff were to sell them within a certain time, and the plaintiff was to have the benefit of any advance in the price over the sheriff's sale. The goods were bid in, and sales of them afterwards made under the agreement at an advance. Held, That there was a sufficient consideration for the agreement and that the plaintiff could recover the difference on the re-sale. Eraser v. Deshrisay, 6 All. 436. A promise by an execution creditor who has purchased part of the debtor's property at sheriff's sale to allow the debtor an additional sum beyond what he had bid for the property is nudum pactum. lb. 310 CONSTABLE. Repi'OMt'iititlioiiM iiiiidc by— liiiibility. See Warranty. See Action at Law (Notice of Action.) 1— ITIili'iiKCN Not entitled to, under Justice's Act, for each defendant, when more than one, unless he actually and necessarily travels twice to effect the ( rvice of summons. Jurdaii v. Coates, 2 All. 107. Certified Fees— Ki||i;iit to recover. See Criminal Law. 3— Refiisini? to Arrest— False Returii-Xinbility. A constable is liable in an Action on the Case at the suit of the bail in a cause in a Justice's Court for refusing to arrest the defendant on an execution issued by the Justice in that cause, and making a false return thereto, in consequence of which the bail were sued and compelled to pay the debt. Jower v. Stephenson, 5 All. 93. 3— Breakiii;; open Doors— l¥nrraiit. A constable has no right to break open the doors of a dwelling-house to execute a warrant issued against the owner of the house, on a conviction for selling spirituous liquors witbout license. Smith v. Burpee, Mich. T. 1872. 4— Arresting Debtor— Duty as to levy on goods first. A constable is liable in trespass, if h^ arrests a debtor under an execution issued out of the Justice's Court (1 Eev. Stat. cap. 137) before he has used reasonable dili- gence to find goods to levy on. Where the debtor points out property to the constable, it is his duty to seize it, unless he has reasonable grounds for believing that it does not belong to the debtor, and this question shall be left to the jury. Hunter v. Maddox, 1 Han 62. 9— Notice of Action. A constable appointed by the Sessions, under the Eev. Stat, cap, 56, and acting under the Justice's Act 1 Bev CONTEMPT. 311 Stat. cap. 137, is entitled to notice of action. Itohicheau V. Aritincau, East. T. 1804. Sec further Action at Law (Notice of Action.) When not ciitiUrtl to Notice. When executing process in which he is plaintiff. See Action at Law XL 12. 6— JiiMiification— Process— Rcinilnr on fnc<> ii Jnstiflea tion to ofiiccr. See Trespass V. 7. Carter v. Pnrrington. I A warrant of commitrncnt issued by a Jiistice of the Peace, which is good oii its face in a matter in which the Magistrate convicting had jurisdiction, is a justification to a constable to whom it is given to be exe- cuted, and a person resisting him is guilty of an assault. lictjina V. O'Leary, 3 Piuf. 264. §-Fees— Right to detain prisoner Tor. A constable has a right to his fees, on an execution, and to detain party until they are paid. Sea Trespass V. 13, Tatt V. Stronach. Direction of execution to any Constable. See Execution IV. 13. COlNTEIflPT. Coniniitinent for— Justices Court. See Nonsuit 11. See Attachment. Power of Justices to Commit for. Justices of the Peace acting judicially are judges of record, and have power to commit to prison orally without vrarrant, for contempt committed in the face of the Court. Armstrong v. McCaffrey, 1 Han. 617. They have no power to commit to lock-up house where tliat place is intended as a place merely of temporary security until prisoner can be taken to goal. Ibid. Witness in contempt. See Attachment. 312 CONTKACT. Retaking: possession aftei* service of i%'rit of posses- sion. See Ejectment V. Process of contempt— €onrt for trial of ITXatrimonial canses. See Court for trial of matrimonial causes. Continning: Security. See Warrant of Attorney. CO^TTIIVIIAWCES. Amending^ Roll by ]Gntry of. See Amendment III. After interlocutory judgment continuances may be en- tered at any time before final judgment. McDonald v. Upton, 3 Kerr 565. Of U'rit. See Practice IV. 12. CONTRACT. See Agreement. Parties disabling themselves from performing— Re- covery on common counts. See Assumpsit 52. Immediate right of action attaching. See Action at Law IV. Pc'scinding of— Can only be rescinded by the consent of all the parties contracting. See Action at Law IX. 15. Acquiescence — Deviation — Recovery on common counts. See Assumpsit 42. Fixtures— Effect of contract 'as to gas fittings. See Fixtures. Contract under seal— Partnership— Property— Liability of firm. See Partnership 5. Mi mt CONTEACT. 313 Contract unlth society supposed to be incorporated. See Equity 5. Corporation — Entering into contract under seal- Estoppel. See Corporation 12. 1— Sale— Vesting of propeity— SuflUcient delivery. Defendant agreed to purchase from plaintiff for $800 the machinery of a mill, which was partly covered with sand, and paid him earnest money to bind the bargain. About ten days afterwardK, the plaintiff signed a writing by which he guaranteed that certain Oi the machinery (specified) waB under the surface of the ground where the mill had stood, and agreed to deliver all the machienry belonging to the mill for $800, and acknowledged the receipt of $2 on account of the sale. He afterwards made a formal delivery of part of the machinery in the name of the whole, but the defendant refused to take it unless it was put on the surface of the ground. Held, That the title to the machinery vested in the defendant by the verbal agreement when the earnest money was paid, no act remaining to be done but that if by the writing any delivery was necessary, the plaintiff had made a sutidcient delivery, and was not bound to put the machinery on the surface of the ground. Allingham v. O'Mahoneij, 1 Pug. 326. 'i-Constrir»'tloii of — Usage— Evidence. Defendant having agreed to sell timber to the plaintiffs, made out and delivered to them an account, charging them with the timber, " to be delivered by J. A.," and crediting tliem with a promissory note for the price. J. A. had no timber helonging to the defendant, but he accepted an Older drawn l)y him for the delivery of the timber to the plp>mtiff;s, on the defendant's promise that it should be in bis iJ. A.'ri) bands at the ti le the plaintiffs required it. In enaction against the defendant for not delivering the tim- ber, iJ. A. never having received it,) the defendant gave C'vulenci of a j^eiioral usa<:;e in the timber trade by which tilt a eeptors of such orders were alone responsible to the 314 CONTEACT. purchasers ; and the plaintiffs gave evidence denying such usage. Held, 1st. That the defendant was liable to the plaintiffs on his contract fo^' not delivering the timber, and that the jury were properly directed that there was no such proof of usage as would discharge him from his liability. 2nd. That the acceptance was only a prospective delivery order, designating the medium through which the timber was to be delivered, and that unless J. A. received it for delivery to the plaintiff's, they could not maintain any ac- tion against him on his acceptance. 3rd. That the contract was contained in the account signed by the defendant, and no time for the delivery being therein specified, it was pro- perly declared on as a contract to deliver in a reasonable time. Ilankin v. Goclard, 4 All. 155. Plaintiffs in their prima facie case having proved only the contract to sell and the breach. Held, That they could give evidence to rebut the usage set up by the defendant. Ibid. 3— Custom not affecting' contract— Scowagc—Losidiiiji' ship. Where a contract was made to load a ship for $1. GO per standard by the lump, and part of the load was brought alongside in wood-boats, the contract was held not affected by a custom of the port of Saint John, that in such case the amount of the scowage went to the shipper. McNichol V. Peck. X Ha. 4'28. 4— Froporty, in whom hclon^in^'— Debiting; in Buuk<>. S., who was l)uilding a shi[) for plaintiffs, being in- debted to them, agreed to transfer the vessel to 11. , one of the plaintiffs, together with all the materials for construc- tion, then procured S. to finish the vessel at his own cost, and rig and equip her with rigging to be provided by i)laintitl'. The vessel, when finished, to be registered in the name of H. Canvas, cordage and wire were procured l)y L., at plaintiffs' store ; and while being prepared for the vessel where taken by the Sheriff under an execution against S., ?vhen $160 worth of labour had been expended upon them. :|X* CONTEACT. 315 Hchl, That under the agreement the property in the sails and rigging remained in plaintiffs, and that the fact of the articles being charged to S. in plaintiffs' books, was not conclusive to show a sale to S., but was a questioii for the jury. That the plaintiff was enticied to recover th.e value of the sails and rigging when taken. RanJdn et al v. M'lt- chdl, 1 Han. 495. 5— Oiiarantoc— Coiisi«lcrc«l as absolute contract. The defendants entered into a written contract with T., by wliich he vras to deliver them a quantity of lumber at a certain time. They afterwards agreed with the plaintiff to transfer to her the balance of lumber coming from T., for which they acknowledged to have received payment in full from the plaintiff', and guaranteed to see the lumber de- livered at the time specified m the agreement with T. Held, Tliat this was an absolute contract by the defendants to de- liver the lumber ; and not a guarantee that T. should de- liver it, and that le plaintiff" had nothing to do with T.'s contract exco))t to rfs^^rtaiu the time of delivery. Lindsay V. Rnsc, 3 Kerr 576. 6-Paitly written— Partly parol. When a contract is to be made out partly by written (locunK'nts, and partly by parol evidence, the whole becomes aquestion for the jury. MdcpJierson v. Frederkton Boom Companii, 1 ILin. 837. ?-iiii|>li(>rovisions. Plaintiff agreed to build a house for defendant for £3,250, and that no allowance beyond that sum should be CONTRACT. 317 made for extra work or alterations, unless orders th.refor in writing should be given by the architect in charge. During the progress of the work the plaintiff made altera- tions in the building by the verbal directions of the archi- tect. After the building was finished, the architect made a valuation of the additional work and of certain omis- sions, deducting the latter from the former, and certified the balance to be due .to the plaintiff. Held, That unless the defendant had dispensed with the proviso in the con- tract about the extra work, or had ordered the work to be done, or authorized the architect to do so, the plaintiff could not recover the amount. Small v. McCullough, 3 Ml. 484. Semble, Tha^ the defendant was not bound to pay the ^hole $3,250 unless the contract was fully performed, and that the value of any work left undone should have been deducted from the contract price, and the extra work stand on its own merits. Ihid. 11-Demand and refusal— Breach. The defendant for value received promised to deliver the plaintiff 30 chaldrons of coal on demand. The only demand on the defendant and the only refusal by him to dehver the coal, was a refusal to allow the plaintiff to put the coal on board a certain vessel of which defendant claimed to be the owner, though he offered to deliver the coal to the plaintiff who refused to receive it, unless he MS allowed to put it on board the vessel. Held, That as there was no contract about the vessel, the defendant's refusal was no breach of the agreement to deliver the coal. Qmre, Whether such an agreement is w'thin 1 Rev. Stat. cap. 116. Vavhuskirk v. Green, 1 Han. 25. 19-Prcsumptioii— Re-survey of lumber. Lumber sold and delivered subject to re-survey, — pre- sumed to be according to provisions of Statute. See Rankin v. Emery, Ber. 330. I'-l-Fiilfiiinent of— Accord and satisfaction — Settle- ment binding* Defendant agreed to deliver plaintiff 100 tons of timber, 318 CONTRACT. of a specified size and quality, at a certain time. He de- livered 101 tons, partly within the time, but not of the size and quality required. Disputes having arisen respect- ing it, and also as to the defendant's liability to pay the expense of putting the timber in sliipping order, it was agreed between them that if the defendant would pay this expense, the plaintiff would allow the timber at 89 tons at the contract price. In an action for non-delivery of the timber, it was left to the jury, wliether the plaintiff had agreed to receive the timber, and waive all claim for damaj^er " - breach of the contract ; and tlte jury having louii*.: ' ." ^urmative. Z/cW, No misdirection — and that the peiiormcince of the contract being in controversy be- tween the parties, such a settlement was binding— the defendimf; -^gr- mt to pay for trimming the timber being a sufficient .^oubidc'ration for the plaintiffs promis' Semhle, That what took place between the parties might be treated as an accord and satisfaction of the plaintiff's demand. Turner v. Kciver. 1 Han. 91. 14— Wlicii binding^ on partio!^— Eiiror(>«'Hl»lo in flqiiity — Slatntc of fViind!^ — l§iil»«ttitutcd conti-act— Flcad- iiig— Infant— PHi'ty to suit. C. (Plaintilf's mother) and M., daughters of S., were entitled to certain real estate in right of their mother, who died in 182G. S. married again, and subsequently, in 1841, made a will whereby he provided that C. and M. should each receive .ilOOO on their marriage, and that when his youngest son became of age, an equal share with his other children, of his property, should be invested for their benefit ; after the death of either, her share to be dividi J amongst her children, the child to represent the parent iu any division of property ; no share to be deemed to have vested until paid, with the proviso that C. and M. should not be entitled to any benefit under his will unless they ratified his acts relative to their mother's real estate. Iu 184'1, by deed in consideration of the legacies and po- visions made for them by the last will and testament of S. they conveyed to him their real estate. C. married CONTEACT. 319 in 1847, and died in 1851. In 1852. S. revoked the pro- visions in liis will in favor of C. bequeathini; tlu: plaintiff ilUUUon his coming of age. In 1858 S. died. Jlehl, 1st, That S. could not revoke the provisions in favor of his daughters in his first will, and that the transaction was a contract callable of being enforced in equity. 2nd, That there was a suiiiciently signed contract to satisfy the Statute of Frauds. 3rd, That the fact of C. having re- ceived certain advances from S., after her marriage, was no proof to establish a substituted contract. 1th, That dunii,;; coverture C. could not enter into a eoiiticU-t to abandon the rights she uequir'.M under t}ie will of S. oth, That the provisions in the will for the benefit of C. inured for the benefit of the plaintiff her son. Gth, That the plaintiff's infancy was no bar to his enforcing the contract, as he was entitled during infancy to the interest of his mother's share. 7th, That in equity a party who intends to rely on the Statute of Frauds must specially plead it or raise the objection in his answer. SAi, That under 17 Vic. cap. 18, it was not necessary for M. to be a party to the suit Gilpin v. Scovil, 1 II>-Witli I*:ti'tiior or pcrsoii:illy — Qnestion for jiii'y <»ii \%'liol(> ovidc'iicts ^Yhere A. brings assumpsit for money had and received, against li., who defends on the ground that he is answer- able to the representatives of A.'s deceased partner, and tlie testimony thereof is to be gathered from tlie entitling of accounts, the address of letters, as also from other cir- cumstances. Held, That is was properly left to the jury on the whole evidence to determine whether B. had con- h'acted with the firm, or personally with A. Rai/mund v. %, 1 Ken- 99. 16-Sianitc of Frauds— Opcriif ion of— Year. A contract, not in writing, entered into on the 2Gth May, for the supply of a regiment with groceries foi a year from tile 1st June following, subject to be sooner determined in case the regiment should leave the Province, is void under Statue of Frauds. Reed v. Harding, 2 Han. 137. 820 CONTRACT. 17— Bill or Lading— Entire contract. As a general rule the bill of lading, though containing different descriptions of goods belonging to the same per- son, is considered as an entire contract. Neill v. Rdcl, 4 All. 246. 18— Specific performance— Lapse of time. Though in equity, time is not always the essence of a contract : Scmhle, That after a delay of four years specific performance will not in general be decreed. Panes, V. Hume, 3 All. 299. (See Equity 2.) 19— Want of acquiescence in terminating^ contract. Where A. delivered timber to B., under an agreement that B. should ship as much as he could, and give A. credit for the amount, and B. having shipped what be thought fit, and given notice to A. to take away the re- mainder, and subsequent to such notice shipped a further quantity. Held, In the absence of any proof of acquies- cence in such notice by A., that B. was not liable iu an action of trover for the quantity shipped after the notice Hughes v. Sutherland, 1 Kerr 574. 20— Rescission ot contract— Evidence of Substitution of new contract— Liability— Question of Jury. Defendant agreed with the plaintiff in March, 1963, to carry deals from the plaintiff's mill at Fredericton, to St. John, during the whole of the coming season, at 23. 6(1. per thousand, and if plaintiff was obliged to give 2s. [Hi per thousand to others, he was to give that sum to the defendant. The plaintiff' had made contracts for the de- livery of deals in St. John, which he afterwards assigned to T. & P. (lumber merchants), together with the deleud- ant's contract ; and he also agreed to saw lumber by the thousand for T. & P. ; and did saw for them uuder such contract from the beginning of the season till October. At the opening of the season the defendant went with his boats to the plaintiff's mill, but no deals were offered to him, and he heard that the plaintiff" had sold his mill : in con- CONTRACT. 321 sequence of this, he agreed with T. & P. to carry their deals for 55 cents per thousand, and continued to carry them from the plaintiff's mill, where they were sawed, till the latter part of September, when the mill stopped. Held, per Fisher and Wetmore, J. J. (Weldon, J., dissentiente), That there was evidence of the rescission of the contract between the parties, and of the substitution of a new con- tract with T. & P., which ought to have been left to the jury ; and that the defendant was not liable on the con- tract for not carrying deals which the plaintiff cut on his own account after the 1st October. Morrison v. Oale, 1 Pug. 203. 31— Liability to insure ifoods— Completion of contract. Plaintiff applied to the agent of an Express Company in Fredericton, to forward a case of furs to Halifax, to be sent to London, stating that he wished to have them in- sured. The agent said that he could not get marine in- surance in Fredericton, but that if the plaintiff would write to S., the agent of the Company at St. .John, he had no doubt he would do it, as he had done so for others. On the following day, the agent of the Company at Frederic- ton received the furs from the plaintiff, and signed a re- ceipt stating that ^,hey were to be forwarded and delivered to the nearest connecting Express, — nothing being stated in the receipt about insurance. The furs were sent to S. at St. John, and were by him forwarded to Nova Scotia, and there taken charge of by another Company, who shipped them to London, and they were lost. At the time the plaintiff delivered the invoice of the furs to the agent at Fredericton, he also delivered him a letter addressed to S., in which the plaiiitilf stated that he wished S. to insure $600 on the furs, and to forward them to Halifax imme- diately, as he wished to have them in London at a parti- cular time. S- dil not insure. Held, In an action against the Company for neglecting to insure, that the contract was complete when the agent in Fredericton re- ceived the furs and gave the receipt, which contained the terms of the contract ; and that the letter to S. was only a 322 CONTKACT. request to inaiire, and formed no part of the contract foi' the transmission of the furs. McGoldrick v. Eastern Ex- press Compuny, 1 Pug. 188. tfti— ith shale, as to be comparatively valueless for the purpose lor which the plaintiff required it. SiJiirr V. Alhert Mutiiifi Co., East. T. 1871. In contracts of this nature, it is not so much a ques- tion whether there has been a warranty, as, whether the article delivered by the defendant fairly answers the de- scription of that which he agreed to sell. lb. 23— Coiiti'sict — Ropresciitatioii — Ackiio \vlciil by SK'IS. B.y an agreement between plaintiff and defendant, therein described as Province Trea^uirer, for and on be- half of the Queen, the plaintiff' agreed to procure — to be coined in England and delivered to the defendant — a cer- tain amount of copper coin for the use of the Province. The Crown having refused to authorize the coining, the plaintiff' made application to the Legislature for compensa- tion, and a grant of money was made to him " to reimburse him expenses incurred in endeavouring to execute a con- tract entered into with the Provincial Government for a supply of copper coin — the same to be in full." Hdd, in an action against the defendant for falsely representing that he had the authority of the Queen to make the con- tract — 1st, That the defendant, having acted under the di- rection of the Provincial Government which represented CONTRACT. 323 the Crown, had tho authority of tUe Queen ; 2n(l, Tliat by accepting the grant of money from the Legislature, the pliiintil'f hi aI acknowledged that the contract was made with the Provincial Government, and therefore that the defendant was not liable. Sears v. Robinson, 4 All. i5(jO. Qiicere, Whether the words of the agreement amounted to a representation that the defendant had the Queen's au- thority to make the contract. Ibid. •21— w 'i' 4>r loK^-tl.'iiltiii^ siikI hauling iM V4>ii4loi' |>si<>>s- 111^ ol' propciiy— liilciilioii. Wliether the property passes under an agreement re- specting the sale of goods is in every case a question of in- tention. H. agreed with G. to cut and haul for the latter from off the land of the former 2,000,000 ft. of spruce and pine logs, and to deliver the same in suitable rafts at a specified place as early the next season as the water would permit, for $7 per thousand, the logs to be marked in a particular manner (described in the agreement), and to be G's pro- perty from the stump. Held, That when the logs were cut and hauled and marked as [irovided for in the agree- ment, the title in the property vested in G., and if H. got out a greater quantity than the 2,000,000, and marked them all in the same way and mixed them together, it was an api»vopriation of whole quantity to G. until his contract was filled. Gibson v. McKean et al, 3 Pug. 299. 2o— Delivery— Appropriation ol" property. By a writing, signed by the parties, S. agreed with D. to cut, haul and deliver a certain quantity' of logs for D. Part of the logs were to be cut on lands licensed to D. by the State of Maine, and part on S.'s land. S. was to drive tlie lumber down the Aroostook river to Doyle's Landing, and 1). was to take it there. No logs smaller than ]5 feet lou;j; and 11 inches in diameter at the top end, and but few as small as that, were to be out. The logs were to be marked with D.'s mark. They were to be scaled by D.'s Ul. fii* 824 CONTRACT. scaler, whom S. was to board. S. was to pay the stump- age. D. agreed to make advances, on which he was to receive a commission of 10 per cent. A second agreement for cutting, hauling and delivering a further quantity was made between the parties. This agreement was me respects similar to the first one, but the place wui^ie the logs were to be cut was not mentioned. D. furnished th» supplies. The logs were cut, hauled and driven down to Doyle's Landing. They were got out for D., and marked with his mark. The evidence was contradictory as to an actual delivery of the logs to D. D. took possession of them and drove them. S. said he refused to deliver the logs until he was paid, and that he sent a nian down on the drive. The jury, in effect, found there was no actual delivery. Held, (by Allen, C. J., Weldon and Dufif, J. J., Fisher and Wetmore, J. J., dissentiente,) That, under the agreement, as the lumber was cut, hauled, and narked with D.'s mark, there was an appropriation of v S., which vested the property in D., without an actuai .^. ^evy ; that the word " deliver" in the agreement did not denote a transfer of title, nor show that S. retained the jns dis- pone ndi until he had made an actual delivery of the lum- ber to D. ; but rather, that it did indicate the time and place, when and where, S.'s connection with the lumber should cease ; and that even if there could be any doubt as to the property in the lumber so vesting in D., that when it was brought to D.'s landing, and D, took charge of it, it became his property l)y the terms of the agreement, with- out the formality of an actual delivery. Spragiie v. King, 1 P.dB. 241. 36 -Delivery of logs— What aiiioiints to— Damage's. On the 19th November, 1872, M. entered into the fol- lowing agreement withthe plaintiff: "This is to certify that I hereby acknowledge that I have conveyed to John J. West, Esq., of the Parish of Johnston, Queen's County, all the spruce and pine saw logs that I shall get from now until next spring, to be his from the time they are cut, so far as what I shall be in debt to him, the said logs to be marked with the mark A. M. Signed, Y/m. Marr. Dated 9th CONTRACT. 825 November, 1872." Under the agreement, M., in the fall ot 1872, went into the woods to cut logs for the plaintiff. In the early part of the season he hauled the logs which he cut into the Washdemoak lake ; in the latter part he hauled them into Jolly Brook. The precise time when ho com- menced to haul to the latter place was not shewn ; but McL., one of the defendants' witnesses, who hauled in the same neighbourhood, en id that it was about the beginning of February. And tne defendant, in his evidence, said that he continued to haal there until the latter end of March following. In the meantime, in the first week of March, the plaintiff went to see the logs on the Jolly Brook. He found five or six brows of logs there, contain- ing about one thousand trees, all of which were marked A. M. M., who was hauling to these brows at the time, came there whilst the plaintiff was inspecting the logs. The plaintiff enquired of him whether these were the logs which he had cut for him under the agreement, and M. replied that they were. He told the plaintiff that there were about one thousand trees there, and going over the brow with the plaintiff and shewing the logs, he asked the latter how he liked them, and tohl him they were his logs. The plaintiff proved that he made advances to M., under this agree- ment, amounting to $212.77, and he admitted having re- ceived the logs which had been hauled to the Washdemoak, from which he realized the sum of $77.17. M. subse- quently sold these logs to the defendant, E., and they came into the possession of the other defendants. The value of of the logs at the time the plaintiff was on the brow was stated at $400. The jury found for that amount. Held, (by Allen, C. J. Weldon, Fisher and Duff, J. J., Wetmore, J., dissenting,) That what took place between the plaintiff and M. in March amounted to a delivery, and that the pro- perty in the logs passed to the plaintiff". Held, (by Allen, C. J., Weldon and Duff', J. J., Fisher and Wetmore, J. J., dissenting,) That the measure of damages was the value of the logs at the time of delivery, and not the amount due from M. to the plaintiff. West v. lioutledgc, 1 P. d- B., 674. I !i' 326 CONTEACT. 27— Sale of timlicr to I»c liaiiicd- Pst«i or at same place. Held, 1. That under the agreement between H. and M. the property in any logs cut by the latter for the former under that agreement, and hauled to the yards or brows, would vest in H. without any delivery. 2. That under the agreement between C. and M. no property in any logs cut by the latter, would vest in the former without a delivery ; and that any logs hauled by M. after the agree- ment with H. and got under that agreement, vested in him, and could not be affected by any subsequent delivery to 0. llanninfiton v. Cennicr, 8 Pug. 212. 28— Pi"0|K'i"ly ill Limiln'r— l^«Mi-iJ ■lyiiif'iil of tlnift- foil- tiiiiiaiK'c of plaintiff S i'i;;;lil in property. The plaintiff company being owners in fee of certain lands granted to C. & S. a license to cut lumber on the lands. By the license it was agreed inter 'i- 'I'wo illi'iiiiiiiM^M— <.'oii!!»ti'ii4*tioii. "Where an instrument is susceptible of two meanings* one of which is reasonable and probable, and the otliM' CONTEAGT. 331 altogether impro'mble, it ought to be construed in the former sense, unless it is clear that the other construction was intended. J. agreed to del-ver to M. a quantity of lumber. At the time of entering into the contract, the former signed a writing as follows: — "When the season's shipments are over, if M. cannot turn out $8 for lumber, as paid Jones Jones, will take off 25 cents of each super- ficial, or the loss. If any." Held, That this meant that the deduction of 25 cents was intended to be a maximum sum, and that *\e words, "or the loss, if any," would only apply in the event of the loss being less than 25 cents per thousand. Jones v. Mcintosh, 2 Pu(j. 343. 4iiiliiv:uity in letter. Si'f Accord and Satisfaction. Weldon v. Vdufjhan. Mi K4>s«-iM>>«ion— Fraud— Adoption— Ktata quo. A person induced by fraud to enter into a contract, eannot, after he has acted under it so that the parties can 111) lougur be placed in statu quo, avoid the contract. IJiijld V. Union. Ins. Co., 2 J^nii. 498. U lo iioct>iit of sauio. >'(' 8ame case Pleading II. 57. M SuW l>y ascertained inea*tHreni4>iil — itli«stai4e. Wlu^'e parties enter into a contract in which there is viu iraurl shewn, the Court will not make a new contract tor them, nor rectify mistakes in it. Where a quantity of molasses was sold according to a certain gauge already marked on casks, defendant bound by that condition, al- tiioiiiih ([uantity fell short. Mrlctoi v. Jlolnnson, 2 P. <(; II. s;5. {* Overseers of tli<> poor IttTO^-nition of liability— '^iippurt of eJiild. I )n evidence it did not appear by whoso authority the ■ M was taken to the party supporting it ; but when the ^Hitir rendered his accounts to the overseers for sixteen ^" ^' support, they did not deny their liability, or raise fM r 882 CONTEACT. any objection whatever, but paid $4 on account of the de- mand, and in the trial before a Justice of the Peace, one of the overseers expressly admitted their liability for the whole sum. Held, That there was sufficient evidence from wLich a contract might be implied. Regina v. Archibald, 2 P. <& B. 250. 39- Parol contract— Dctci'niiiiation of— Easement. An easement cannot be created by parol, and a parol agreement of such would be determined by a conveyance to a third person from the party agreeing to give the ease- ment. Brewing v. Berryman, 2 Pug. 115. A person induced by frau parties can no long;er i»e piace<1 in statu quo, avoid the contract. Sec Pleading II. 57. Lloyd v. Union Inn. Co. Joint contract. Sale of vessel under certificate of sale. Action for proceeds of sale by three out of four owiurs. Contract held to be a joint one, and that all the owners should be joined in action against defendant. See Action at Law. Cami)hell v. Jones. Agreement to build house and make payiiieiil in specified time of certain amount— Condition pre* cedent— Necessary to aver in declaration. See Pleading I. 68. Driscoll v. Barker. Separate interest in contract. See Action at Law XIII. Damages on breach of contract. See Damages. Damages— Non-assignment ol judgments, etc.— Injury to business. See Damages I. 9. CONVICTION. 333 Fi<>i?lit— Payincnl of— Iiiii>lic«l contract. Scr Shipping Law 13. Fenimon v. Domvillc. Kailway Acts, ivlicii treated a»« contracts between incorporators and tlic pnblic. See Mandamus. Re N. B. d- G. Rjj. Co. 1l!i«itor and servant — f'ontinnance ot contract — *.^J of the corporation. Held, Therefore, In assumpsit brought for the recovery of the stipulated payment after the deliv- ery of the logs at the mills, that the corporation was not liable— per Chipmaa, C. J., Botsford, J., and Carter, J. The corporation was not liable on the contract, because there was no sufficient proof of the agent's authority, of a recognition of the contract by the corporation, of the mills being in the tenure of the corporation, or of the appoint- ment of officers under the act of incorporation to manage the business of the company — per Parker, J., the defend- ant, being sued as a corporation, and appearing and plead- ing as such in bar to the action, is estopped at the trial from disputing its existence as a body corporate, and its ability to contract in that capacity. Seelye v. Lancaster •>ri« Company, 1 Kerr 377. I . 1 ■•■■ t u r, '6'6i) CORPORATION. •1— A*»<>>iiiii|»Hil— Wli«>ii it Ii4>!!» aM:aiii!iit. Wliere money lias been received by a manufacturing cori)oration under a parol agreement to make payment for tbe same in articles of their manufacture, which they have failed to perform ; an action of assumpsit lies to recover back the money. Diamoixl v. The St. Georue Lime Com- jxtni/, 2 Ki'ir 537. <»— I^4'tt4>i'«i |»at4;iit— l*i'c>wuiii|»tioii of- Pro|»<>i' i^Miic or. Where a corporation is created by letters patent under the great seal of the Province, and under the signature of thf Lieut. -Governor, it will be presumed that such letters patent were properly issued. Doc dcin. Commcrc'ud Bank v. Mlilistoii, ii Kirr 101. 7 •Aii4'4' 4»f 4'4>i'|>«»i'ati4>ii by whsil. Giving a niortgjigc to a cor[)ovatioii, and entering into a cniisent rule in a'.i action of < jectment brought hy n oor- poration, am admissions of the cxistoncc oftlje corpoiatinn. Ihiiil lor 4-4»m|m. A corporation is not liable to an attachment for non- payment of costs ; therefore, where a perera})tory under- taking Was enlarged on the application of a corporation (plaintilfs,) the defendant was allowed to sign judjitments of lion- suit if the costs were not paid in a limited time. TriisfccH of (/frcnork CliKrcli v. Lore, 'ii Kerr 179 .Set' also Doe V. Crawford, 3 AU. 26(). 1I>- \4»ii-i>ayin4'iil 4>f iiaoiic.v by collector— Action by. Where an act authorized the corporation of a city to raise money by assessment, and directed that the person appointed by them to collect the money, should pay it over to the chamberlain of the city ; the chamberlain, ln'ing only a servant of the corporation, cannot sue tlie collector for not paying over the money ; the action must be brought by the corporation. Mayor, (Cc, of St. John v. Bcddwin, SKerr 477. CORPOKATION. 337 10— ii<^, vu:, Tliu Church Wardens and Vestry may exercise the liowtis t^ivon to the Rector, Church Wardens and Vestry, liy the Act 21) Geo. 111., cap. 1, as well where there never has been a Rector appointed, as where a vacancy is caused liy the death or absence of the Rector. JhbL I'i-C'oiili'Sicl iiii«lor Seal— Estoppel. A Municipal Corporation with certain defined powers, is not, by entering into a contract under seal, estopped from shewing its incapncity to make such a contract. ■Iiiiiur^dii V. Tlic Citi/ of Fri'dcruton, 2 .1//. 128. l:i— Aiillioi-ity by Stsitim' lo erect biiiltiiiig;— linplicd |M>\vei'. The Corporation of the City of Fredericton entered into a contract with the plaintiff for the erection of a building tor a market house. Held, That sufficient authority was siven them by the Act of Incorporation (11 Vic. cap. 61), and therefore that the contract was valid. Ibid. II — A power to establish Fairs, necessarily includes a i)(i\vei to establish Marktits. Ibid. !•>-< rowii ri^^lit -Settiiiii;: up same to invalidate €on- ll'HCt. (^'("')v, If the Corporation had no authority to establish a Market without license from the Crown, whether it could, after the performance of the contract, and in the absence ot any interference by the Crown, set up the Crown right to invalidate the contract ? and Scmble, That after the per- tovmanee of the contract, the corporation could not resist payment because of a defect in the title to the land on ^vhich the market-house was built — they retaining the pos- session of it. Ibid. 888 CORPORATION. 16— S(>nl— UoMOliitioii not under neal. Defendant, a tenant of the Corporation of St. John, claimed compensation for some alleged damage to the land leased, caused by the corporation ; and they passed a reso- lution, allowing him therefor, the amount of rent he would be liable to pay for the land for a certain time. Ilchl, That not being under seal, the resolution was not binding on the corporation, and that the defendant could not setoff the amount of rent so allowed, in an action by the corpor- ation to recover money in his hands belonging to them. Mayor, d-c, of St. John v. Wihnot, 2 All. 565. 17— British Statute— Restraint of- Leases. Qiuere, Whether the Stat. 13 Eliz. cap. 10, restrainiu},' ecclesiastical persons from making leases for a longer terra than 21 years, applies to Church Corporations in this Pro- vince. Bedell v. The Rector, iCc, of Fredericton, 3 All 217. 1 8— NeifiiKcnce— Liability for. A Municipal Corporation is liable to an action for neg- ligence in the discharge of any duty imposed on them bv their charter. Green v. The Mayor, dc., of St. 'John, I Han. 525. 19— Trespj's . - Vt-tiom l»> Corporation— IVo Hector. In the absence of proof of there being any Rector of a parish, an action of trespass for injury to the Parish Church may be brought in the name of the Church corpor- ation. Rector, etc., of St. Georr/e's Church v. Coiujlc, 1 Hm. 609. 30— Suinmoas— Requisite stateniesit o^ cause ot :ictioii. The summons issued against .poration ui 'ertlie Act 12 Vic. cap. 39, sec. 1(3, shou state the caubt of ac- tion truly : where the summons was to ai ^werin a plea of " debt," and the declaration was in covenant, an interlocu- tory judgment was set aside. Gilmore v. The Uveriml, dc, Assurance Company., Hil. T. 1871. An affidavit of the service ot a summons issued against a foreign Corporation, stated that the copy was .served CORPORATION. 339 ■por- upon E. A., ** the agent of the above named Company." Held, That as by the Act 12 Vic. cap. 39, sec. 16, service upon an agent was only good in a suit against a foreign Corporation, the afitidavit was insufficient, as it did not state that the defendant was a foreign Corporation. Ilnd. 31— Pnyincnt of money to n Society does not incoi'i ate. The mere grant by an Act of the Legislature of a sum of money to a Society for a particular purpose, does not constitute it a corporation. The Municipality of York was authorized by Act 23 Vic. cap. 4, to issue debentures in a certain sum, to be appropriated in assisting The York County Agricultural Society to raise funds for the erection of permanent buildings for the purpose of holding annual shows and fairs. Held, That this did not create " The York County Agricultural Society " a Corporation. Hndfic T. Mil, Mich. T. 1872. 22 Policies signed by president and countersigned by secretary as required by Act incorporating Insuranue Company, valid without seal of company. See Evidence VI. 5. Agent Accredited. Sfc Principal and Agent 23. *i3-Corporation of City of St. .folin. Are not bound by their charter as grantees of Crown to build or keep in repair wharves or sea walls for the protec- tion of the city lands from the sea. No such implied duty by charter. See Coram v. Mayor, dc, of St. John, 1 Han. 441. til-Power to change name. An incorporated Company has no power to change its corporate name without the authority of the Legislature. l^d V. E. B. N. A. Rwy. Co. et al, 2 P. &. B. 194. Conveyance to Company by corporate name before in- corporation does not pass property. See Bill of Sale. (Same case). Rse 340 CORPORATION, if •i.'S— Proof of Incorporation— PleiKling. In an action brought by plaintiffs in their corporate name against defendants as endorser of a promipsory note, the defendants pleaded no endorsement and want ot pre- sentment. Held, That mider these issues, the plaintiffs were not bound on the trial to prove their incorporation. Bank of K ova Scotia v. Mason., 2 Pufi. 460. *iC»— Incorporation not traverfscd— Proof. In an action against defendants in their corporate capacity as endorsers in a promissory note, the defendants pleaded no endorsement and want of presentment. Held, That under the Common Law Procedure Act 1873, the plaintiff's were not bound to prove their incorporation on the trial of cause, as by that Act whatever is not traversed is admitted. B<(nk of Xova Scotia /. Morrow, 2 Pkh. 460. •2T— Fowor of corporation— Ailo\vaii<><> 4»f walsn-y. Tlie directors of a Company passed a resolution allow- ing their president a salary of $1,200, for the year then current, and ordered that a certificate of indebtedness under the corporate seal should be issued to him in said sum, upon which the president caused the corporate seal to be attacheil to the certificate. There was no resolution of the stockholders voting the ])resident remuneration for his services ; nor was there ov,/ provision, either in the Acts of Incorporation, or the By-laws of the Company for such remuneration. Held, in an action brought on this certificate, That the president was not by law entitled to receive pay for his services ; that the boai'd of directors had no right to pass the resolution referred to ; that the act of affixing uhe corporate seal to the certificate was of no legal force, and it was open to the Company to resist payment in a Court of law. Fellows v. The Albert Minino Co., 3 Pufi. 203. IH -:%'niKanr<>— Ki^lit to rcniove~Hi|;ii anil lotv water niarii. The plaintiff was the owner of lot No. 1 in the City of St. John, granted nine months before the charter of the COKPORATION. 341 city, which lot was, by the terms of the grant, to extend to low water mark. He was in the act of erecting a pier on the land between high and low water mark, when he was interfered with by the defendant, acting under the authority Ox the corporation, who removed the pier as an obstruction and a nuisance. Trespass being brought, Held, (Weldon, J., diss.,) That the plaintiff's grant was subject to the jus publicum of passing and repassing be- tween high and low water mark, and that the corporation, who are by law the conservators of the harbour, were justified in removing the obstruction. Brown v. Reed et at, 2 Pug. 206. Action against Corporation— Allc;;atioii*« in declara- tion—Public liiti'cots under control of— Evidence. Sec i'leading I. 75, Gnrdou v. Maijor, ((!c., St. Jolni. Aiiicnt of Stock. See Assessment. Foreign ln!>«iirance Conipany— Illcji?nll.v carryinn: on biisiiic*« siiiltject to atfarli iiient. Sec Attachment 57. Foreign Corporation — Liability to Oarn:««liee — Pro- cess. See Attachment. CliKii'iiuiii-Pi-oof of being. .SVc Evidence XI. 53. Water t'onipany— Obligation to keep i^npply of water. Sec Water Company. Corporation of Saint John have no right to limit by I their power to make by-laws within their control ertbe charter. Sec By-Laws 5. Sec Joint Stock Company. 342 COSTS. CORPORATE NAITIE. Sec Church of England. See Corporation. illi«»descri|>tioii. Where the notices and orders upon which an action under the Winding Up Act was founded, were entitled, " The President, Directors and Company of the West- moreland Banii, in the County of Westmoreland,"— the corporate name being — " The President, Directors and Company of the Westmoreland Bank." Held, No misde- scription, the words being merely an addition of the local- ity. McKenzie. v. Wlsivell, 1 Han 503. €'OS'l'M. 1. PiECORD AND SuMMAKY (ALLOWANCE OR DISALLOWANCE OF Costs.) 11. Taxation c' Costs — (What allowed.) 111. Notice of Taxation. iV. liKViEW OF Taxation. \'. PaUTICULAIi rilOCEEDINGS — pAUIICULAll PeKSONS. VI. Seveual Defendants — Several Issues. VII. Security foii Costs. Vlll. DoriMJ'; Costs. IX. Offeu to SuFi'j::R Judgjient ry Default undeu Act 18 Vict. cap. 9. \. Miscellaneous. I. liECOlii) AND SUM.^IAIIY — ALLOWANCE OR DISALLOWANCE Of FULL Costs. I— K('4>ov4>i'.v iiiidor €>!t. Where plaintiti' recovered less than il'), in a case re- ferred at u/.sj prius, the original demand being also less than that amount, a suggestion will Ue. entered on the roll to deprive him of costs untlt.'r the Act .'50 Geo. III., cap. b- Fcnjiisoii V. Hohiu'-i, East. T. 1831. COSTS. 843 •2-Vi-ii Court in depriving plaiiitiir of co4ii:!<-iV'tid:iiit disputing: halaiice on ace.oniil rendered Where the verdict was for i;il, plaintiff was allowed iuU costs, though he had rendered an account to the de- idulaut before action brought, shewing credits and a bal- ance due of less than i"20 — the defendant having disputed till balance and thereby rend'^red it necessary for plaintiff til ^uc lor liis whole denuiud. Ddini! ■ \. JLinsoii, Ber. I'll () l)i«^<*rt'ti<»iiar) power. I'ci'cndant gave plaintiff a note for i;22, payable in tim- i'ti'; lie afterwards delivered him some timber and an ox, which he claimed lo have been received in satisfaction of tilt- uotu; plaintiff" recovered a verdict for t'14. Jleld, riiat he was entitled to full costs under the discretionary I'WiT given to the Court by the Act 1 Wm. IV. cap. 41. '/"'loi(/ V. Close, Ber. 844. ^ •iMi|>oiiiiiii ri;;!!!-^ involved Trover. ^Uicn important rights were involved in an action, the V''""titt was allowed full costs, though he recovered less 844 COSTS. than t'20, and the action might have been brought under the Summary Act (4 Wm. IV. cap. 41). Coombes v. Cald- iccll, 1 Kerr 127. 8— Kcf'erciicc to Arbitration— A^vard lcs« than dCS. Where a cause was referred to arbitration, the award to be entered as a verdict, and an award was made in fa- vour of the plaintiff for i'S, he was allowed summary costs, it appearing by affidavit that his account, as allowed by the arbitrators, was about i'20, and was reduced by the defendant's account, — notice of set-off having been given in the action, and it not being clearly shewn that the de- fendant's account was ii payment, rhnjlc v. Dowjim, 1 Kerr 161. 9— Assault and Battory ~Ver to land. The plaintiff' is entitled to costs under the Act 30 Vie, cap. 10 in an action for overflowing his land by means of ii mill-dam ; the defendant claiming his right to do so, bv permission of a former owner of the land, and going into evidence of that right, though he afterwards abandoned it. McLeod V. Murray, 2 Han. 193. 11— Title to land— Connty Court. Where the declaration contained counts for trespass, quare clansum /regit, for assault, and for slander ; but the plaintiff recovered lor the assault only — there being no dispute about the plaintifi"'s title to the land — a certificate for costs was refused under the Act 30 Vict, cap- 10, sec. 21 — the amount recovered, being within the jurisdiction of the County Court and the count for trespass to the land having been improperly included. Bradley v. Ferguson, East. T. 1871. ;l{«l COSTS. 345 12- ^ In trespass quare elausiim frcf/it, and for an as- sault, the defendant gave notices of defence, — liberiun tene- mentiun as to the tre& oass, and a justification of the as- sault in defence of his possession. The question of title was principally in dispute, and the plaintiff recovered on both counts. On motion for a new trial, the plaintiff aban- doned the count for trespass, and the verdict, which was confined to the count for the assault, was excessive. Held, That as the defendant justified the assault as the owner of the land, the title to land came in question in connexion with the assault, and therefore the plaintiff was entitled to a certificate for costs under the Act 30 Vic. cap. 10. Burke M. Niks, East. T. 1871. I*i(i— KtM'ovcry for a$«!>»aiilt only. Where in trespass qiiarc clausum /regit, and for as- sault, the plaintiff' recovers for the assault onlj' ; he is not entitled to the costs of the pleadings or evidence appli- cable exclusively to the issue, on which he was unsuccess- ful. Burke v. Niles, 1 Piuf. 361. 13— .liid^:o cci'tifyiii^ under Act 30 Vic. cap. 10. Where a cause is referred to arbitration by an order of nisi 2)rius, the presiding Judge has power to certify for costs under the Act 30 Vic. cap. 10, sec. 21, Patton v. UariUnij, East. T. ll-.issigiiee of ]\'otc lor liiiubor— Delivery after action. Where the assignor of a note payable in lumber ob- tained a verdict for nominal damages, in consequence of the debtor having delivered the lumber to the assignor alter action brought, the Court granted the plaintiff a cer- tificate for full costs. Green v. Wdliston. 3 Kerr 110. 15-Tiospass— Claim of Title— Certificate. ^^here the trespass is committed under a claim of title, or with the intent to oust the plaintiff from the possession of the laud, the Judge may certify under the Statute 22 and 23 Car. II. cap. 9, to entitle the plaintiff to full costs. yiorrimn v. McAlpin, 2 Kerr 36. 22 346 COSTS. 16— Certificate— Time for granting. Such certificate may be granted within a reasonable time after the trial, and an application therefor is not too late if made the day after the trial is over. Ibid, 17— Time of malting application tor Certificate. An application to the Judge who tried the cause for a certificate to deprive an acquitted defendant of costs, under the Act of Assembly 7 Wm. IV. cap. 14, sec. 24, is not too late if made before the judgment is signed, though nearly two months after the verdict. Craiie v. Cunanl, 3 Km 407. l§ The Statute 43 Ehz. cap. 6, authorizing a ^udge to certify to deprive a plaintiff of costs, is in force here. See British Statutes. ifl> -Cognovit— Damages laid at £50, conditioned for payment of .£17. Where A., an attorney, sued for a debt of £Yl in an ac- tion not summary, and the defendant gave a cognovit in which he confessed the damages laid in the declaration (iloO), but it was thereby stipulated that in case of default of payment of ^17 with costs, to be taxed by a certain day, the plaintiff should be at libeity to enter up judgment for the iil7. Held, That he was entitled to summary costs only. Harding v. Parker, 2 Kerr 7. '20— Defendant suffering Judgment over £5. When the defendant suffers the damages to be assessed and final judgment signed for a debt over .i'6, the Court will not entertain a motion to deprive the plaintiff of costs, on the ground that a payment had been made before action brought, whereby the debt was reduced below £5. Bcmtl V. Morse, 2 Kerr 624. '^l—^et-off— Appropriation. Where the maker of a promissory note delivered tlie payee a quantity of hay without making any specific ap- propriation of the amount towards the paying of the note, and on a subsequent demand of payment claimed no de- duction on account of the hay. Held, In action on tlie COSTS. 347 note, that the value of the hay could only he considered as a set-off, and that the plaintiff was entitled to costs, though ■;e verdict was for less than i'u. Barluir v. Clark, 3 A'err xJO. •i'i -l)iiin>iKO«« under CiSO AMSiiiiipsit. When the damages in assumpsit are under 4'20 the [jlaintift' is only entitled to summary costs though the de- fendant suffered judgment by default and took no steps to be present at the taxation and object to the costs. Street V. lite Saint Andrews Steam Mill Co., 1 All. 184. ■iS-Set-oir— Cioo«l!i« ftiriiislicd— Verdict below CS. If a defendant gives a notice and particulars of set-off which are principally made up of goods furnished the plaintiff', it shews prima facie that it was not intended as a payment, and the plaintiff is entitled to costs though the verdict is below i'5. White v. Dawson, 2 All. 51. *il— Special notice of «lcfeiicc— Effect of. The construction given in England to the Statute 22 and 23 Car. II. cap. 9, is part of the law of this Province, and is not affected by the Act of Assembly 18 Vic. cap. 32 ; therefore in trespass qiuere claiisum f regit, the plaintiff is entitled to full costs though the verdict is under forty shil- Hngs, if the defendant gives notice under the Act, of leave and Hcense, and relies solely on that defence. Marks v. Gllmour, 3 All. 170. 'i-5-('aii!i>e referred at IVisi Priii<>«- lull co^ts. -Order of .riidy^e for Where a cause is referred at Nisi Priiis, and judg- ment on the award is to be entered as a verdict, the Judge of the Court of Nisi Priiis may make an order for full costs, where the plaintiff's demand is reduced by set-oii ; and such order may be made ex parte. Seelye v. Styles, ■i All 246. '^6 .lustices €oiirt-No Jurisdiction-Contract. The Rev. Stat., cap. 137, sec. 43, depriving a plaintiff 01 costs where he does not recover more than i^5, only ap- 348 COSTS. plies to cases in which Justices of the Peace have jurisdic tion ; therefore in an action for non-performance of a con- tract to cleHver goods, the plaintiff is entitled to costs with- out a Judge's order, though he recovers less than that amount. liUleout v. Stevens, 1 Ihui. 28. 27— TciKlcr— Jii«l;;:iiiciit acrc|>U;d for amount witliiu County Oourt Jui-iwdictiou. Plaintiff brought an action in the Supreme Court against defendants as administrators, who tendered a judgment for §45.10, which was accepted. On a motion to review the taxation of costs on the ground that the plaintiff was deprived of costs by the County Court Act, 30 Vic. cap. 10, sec. 21, Consol. Stat. cap. 51, sec. 50, it was shown that plaintiff claimed about $G50, and that he accepted the amount tendered, because the estate was insolvent, and would not pay more than 10 cents on the dollar. Held, That under these circumstances, pLaiutill' was entitled to costs, his claim being for more than he could liave sued for in the County Court. Morricc v, WiUoH, 2 Pug. 225. '28— OH'ci- to sutTer .lu«l;;iiic>iit by (Iclaiilt. Where a plaintiff accepts an offer to suffer judgment by default under Consol. Stat.. cap. 37, sec. 127, he is entitled to sign judgment for the amount of the offer and the full costs. Where the offer is for a sum within the jurisdiction of the County Court, the plaintiff may shew by affidavit that the action was properly brought in the Supreme Couit Pc2)pcrs V. Johnston, 1 P. d- B. 502. See Infra IX. 29— Itccovci-y of amount within .juri4l- l'oiiiiiii<>> V4>r«li4'l— OII<>i' to I'onrcsM .jiKl^iiioiii- C'of^tM of lii'Mt trial -('oiiiiiiiMKioii. A verdict for plaintiff in an action on a policy of in- surance claiming for a total loss, was set aside for mis- direction : after notice given for a second trial, defendant offered to confess judgment for a sum amounting to a partial loss only, which the plaintiff' accepted. Field, Tl;at he was not entitled to the costs of the first trial. Wood v. Sti/mest, 5 ^1//. 429. 36 The expense of a Commission to examine wit- nesses taken before the first trial of a cause, but not used. will not be allowed to the plaintiff as a necessary prepara- tion for the second trial. Ibid. 37— Attendance ot 8oli<'itoi'— Fvideiicc not ii<»oi'«to party. It is sufficient, in order to obtain the taxation of wit- nesses fees, to shew by affidavit that they have attended during the period charged, and were material, without shewing the payment of their fees ; and it will he no answer that they were also subpa-ned and paid by the other party, unless he has given timely notice of such payment to the successful party. Mtii-ntij v. Jl'iUinton, 1 AIL 355. Affidavit should state l)elief that the witness 48 attended the number of days charged. See Taylor v. Tnim, 3 All. 505. 49— Evidence— Application to one count ol det'lain- tion— C'o^its confine<— C'laiiii by third paiiy. Qiuevr, Whether the plaintiff in replevin is entitled to recover against the defendant as part of the costs in the cause, the costs of the proceedings talvon under a writ ik proprietdtr probanda issued upon a claim of property put in by a third person under the 1 Eev. Stat. cap. 12G, sec. 12? Held, per Ritchie C. J., and Allen, J., That he i? ; N. Parker and AVilmot, J. J., contra. Goddard v. Tuck, All. 375. 56— Uifloi'ciit is«»ii(>««. In replevin, where some issues are found for the plain- tiff and some for the defendant, each party is entitled to costs on the issues found in his favour. Di-'ldnson v. Ketrlnnn, Ber. G3. 37 Where a defendant pleads non cepit, and pro- perty on which issues are joined, and Fucceeds on the fii?t issue only, he is entitled to the general costs of the causo, and is lial^le to pay the costs of the other issue. Stq^hciwm Millihen, 1 Kerr 5G. 5§— lii<|:iiMiti<»ii. When the verdict in for the defendant on an inquisition taken on a writ de proprictate probanda, undei the Act 4 "Wni. lY. cap. 38, the defendant is not entitled to the costs of the inquisition. Wilson v. Curry, IMicJi. T., 1884. 58«- K«'|»l<>viii l»oii«l <'oijiiH4>l f«M»s. The plaintiiTs attorney in an action on a replevin bonil. cannot add to the taxed costs, a sum paid by the defciuliuit for counsel fees. The costs mentioned in the condition oi a replevin bond mean taxable costs. Steen v. JLtuiii'i',^ All. 580. COSTS. 355 .59_<^|ioiitrS foes. Sheriff's fees, on executing a writ of replevin, being part of the general costs of the cause, are not taxable in the costs of opposing a rule to set aside the writ, as having been imm'operly issued. McGoiran v. Betti^, Mich. T., 1871. Koploviii— Wilnrsstis— Matjuiality. Sa No. 116. (>0— ItolVroii^-o of 4'aiis<> to arhitratioii— !Vo < v. (.'htpmnn, 3 Kcvr 192. (»1— (1i!ir;f<> of arbitrators- Taxo<1 costs. Where a cause was referred at nisi priiis the award to be entered as a verdict — " with costs to be taxed" — the charge of the arbitrators for their services cannot ^ • allowed in the costs. M.'Mthm V. Dihhh', Trhi. T., 1831. ft'2-Moti«ii for ji.Ml^iiK'iit. A counsel fee is taxable on a motion for judgment as in a case of a non-suit, though the motion is not opposed. Yi'rh Cmnttj MutiKil lusuniHce Co. v. Hartley, I^ant. T., 18G5. «;i-Knl<' liisi for now iriaD. ^\here a rule )tWi for a new trial is refused, a fee of Gs. M. i^ taxal)le to the opposite party for counsel attending to lifav the motion. A charge for brief for argument is not taxable until a rule nisi has been granted, e\en though notice of the motion has been given pursuant to the rule of ilicbaehnas Term, 1st Vic. U'riuht v. Merritheiv, 2 All. 520. 356 COSTS. OJ .lii«l;;ni<'iii l».v 4l<'(iiiilt-T:i\iil»l<' iioiiis oiilj alliM\ :il»l4>. On a judgment by (kfault on a smnmary action, i.'.- costs are taxable for items not specified in the table of fees in the Act 12 Vic. cap. 40. S>i(i(Jf'S — nii(l4»r««<>iii<'iil ol' slK'rifl' on writ, \\li<>tli<>r coii> i-lii*>iv«' siH lo f'ci's. See yheriff 5. <»<>— l'pearing on both motions, and it not being shewn that a second abbreviation had actually ijeen made. Jlcndrichu v. ILdlct, J ]Li}t. 170. <>8— Fi<|iiil.V :i|>|»4'iil. Where parties do not fairly state their cases, and their conduct does not appear to have boon Ixnm Jin, neither of them will be entitled to costs on an equity appeal. Ililh-d wl'iisslc, 5 AlH)5rj. <;9— '\o .jiii-is4li<'tioii P4»u(>r l«ii> ^i-aiit 4'oslC.) 70— A|>|»« :ii ill liquify S«>ii(> of <>ONt4l^:<> ol. A mortgagor was raado (lefondant in a foreclosure suit, a])peared thereto and answered, disclaiming any interest in tlio property. On motion to dismiss the bill as against the mortgagor — Held, That as the phiintilf cither knew or had the means of knowing, before commencing the suit, that thf' mortgagor had conveyed away his equity of redemj)- t" n\ in the j_iroperty, the mortgagor was entitled to his costs. Wihon. v. Honihrook and ic'i/e (Oid McKe.niKi, 1 ILiiL 107. 72— t'o tU-ti .ulaiits -Pi'arlice. In general, payment of costs between co-defendants is- not directly ordered, but the plaintiff is ordered to pay i\\( •;osi.-,u) the defendants to whom they are decreed, and to aiH •: m to the general costs in the cause, and recover tbein from the other defendants. Johnfifoii v. McCartney, 1 liui. •2'27. ?3- Traviiliiiy: Am's— C'aiiwo po^itpoiiod. The plaintilfs resided at Somerville, near Boston. The cause was called on for trial about 1 i .m., and the trial was pui off on the defendant's undertaking to pay the costs ,it' the day. The plaintiffs left Boston the n^^xt morn- ing to attend the trial. The clerk on taxation of costs allowed them their travelling fees. IlcJd, That while it was the duty of the plaintiffs' attorney to use all reason- able etforts to stop the plaintilfs from coming, he was not bound to telegraph unless the defendants requested liirn to 'lo so, and offered to pay the expense of telegraphing, and tluit the clerk was right in allowing the plaintiffs' travelling fees. Gihsnn and Wi/c v. XortL h. .O .1/. Ins. (%>., 1 i'. A- />. 57:3. »1-I.«'av« .to I'opI)— D<>iiiiiiTi>r aiict. Aiii4>ii4liiiriil Kciii Plaintiff got leave to reply and demur to several of Jtleiulants' pleas under the Common Lnw Procedure Act rmm 358 COSTS. 1873. Notice of trial was given and the cause entered in tlie docket at nisi prins, and made a reiuanet. On the argument of the demurrer, defendants applied for and ob- tained leave to amend the pleas demurred to, on payment of costs. Ilchl, That in taxing the costs the clerk was wrong in allowing for brief, notice of trial, subptena, Judgij's fee and iiini jn-iiiH record, these being costs in tbe cause. Lloyd v. Tlic Union Ins. Co., 3 Pitc/. 78. III. Notice of Taxation. Y4 In all cases, between opposing parties, where the proceedings are not by default, there must be notice of taxation of costs, and a judgment signed without notice will be set aside with costs. Tamer v. Crane, East, T. 1833. 75— Taxiki;? witlioiil i*oticc. Taxing costs and signing judgment without notice of taxation to the opposite party, is irregular ; but where the attorney had offered to re -tax the costs and deduct any improper charges, an application to set aside the judgment was refused, and an item improperly charged in the costs was ordered to be deducted from the amount to be levied under the execution. TJtomson v. Green, (5 All. 52. t6 An attorney having taxed costs and signed judgment without notice to the opposite attorney, contrary to an agreement made by his agent that notice should be given, and which was communicated to him — Held, That he was bound by the agreement of his agent, and that the judgment was irregular. Cornikk v. Wilson, 3 Kerr 110. 77—000*1 Friday. Taxation on that day is not irregular, (iibnorc v. Gilkrt, 2 All. 50. IV. Erview of Taxation. 7S— Time. Intended motion to ) oview taxation must be givou as soon after the taxation as circumstances will permit. &( Doe d. McCnlluin v. Roe, 2 AH. 143. COSTH. 359 ,yjj ^Wliere costs wern taxed 29tli October, and pay- ment demanded IStli November, an application to review tliu taxation made without notice, on the lirst day of the following term was refused, the plaintiff being prepared to move for an attachment for non-payment of costs. Ibid. 80-Waivc'i'. The defendant's attorney was served with a copy of a bill of costs, in which neither the names of the witnesses, nor the sum charged for their attendance was stated, but reference was made for those particulars to an ailidavit, no copy of which was served with the bill of costs ; the defendant's attorney, by his agent, attended the taxation of costs without making any objection to the want of the affidavit. Held, That he had thereby waived his right to object, though the ailidavit on which the witnesses' ex- penses were taxed, was afterwards contradicted in several particulars; and therefore, the taxation could not be re- viewed. Chase v. Fmvcett, 1 All. 566. The attendance of some of the witnesses having been de^ied, the amount charged and not paid by the plaintiff, was ordered to be deducted on a discharge being produced In- thu defendants, and the plaintiff before issuing execution was retjuired to state on oath what witnesses he had paid. SI Where a party has attended taxation of costs, after due notice, without making any objection to the wit- nesses charged for in the bill, he cannot afterwards apply for a review of taxation, on the discovery of facts which be might have known at the time; unless a fraud has been practised upon him, or he has been greatly misled. FLag- lor\. Richards, 1 All. 599. 8'2-Xcw Allidavtts. 'Jiuere, Whether, on an application for review of taxa- tion, new affidavits are receivable by the Court, or by the clerk, in ease a review is ordered. See Murray v. IViUiston, 1 AH. m. 360 COSTS. §3— €o!Sit»>» on i'cvi<>\v -ITIistakc of Clerk, The costs of a review of taxation are not allowed where it was occasioned by the mistake of the clerk. Snod- grass v. Jolniston, 2 All. 200. §4— €ti-oiiiitak<> in rntorinv: Rnlo. A mistake in entering a rule in the minutes is not a ground for reviewing taxation, it not appearing that the judgment was wrong, or the opposite party .nisled by it. Where there were mistakes on both sides, an application to set aside the judgment, and review taxation, was graiitcJ, without costs. CrooksJuDik v. McFdiianc, 3 All. 18. 85— Ovor-allowancc— IVitnessos. If a clear case of over-allowance for attendance of wit- nesses is made out, the Court will review taxation. Str Gaudiii V. McKilligan, 2 All. 477. §6— Dillcreiit ■•^•'iucs. If both parties are entitled to tax costs on ditferent issues, an appointment for taxation should be obtained from the clerk. Crookshank v. McFarlane, 3 All. 18. §7 — CoMtM of inf<'i'ioi' court. If an action is commenced in the Inferior Court, aud r.fterwards removed into this court, the cler^i of Supreme Court may tax the costs incurred in the court below, witli- out referring them to the officer of that court, yi'dim v, Stt/lcs, 3 Kerr 143. ^M- lYIakingr new motion— \Villidra\vin|j; aflidsivit§. If, on an application for an order to review taxation o* costs, the affidavits are insufricient, and the party intend? making a new motion on additional al'tidavitj, he ought t' withdraw the first motion ; if judgment is given upon it, lie is precluded from making another application. Scmble, That notice should be given to the opposite {larty before applying for a review. McLaiujhlan v. W'dm, 3 Kerr 177. COSTS. 861 §9-E<|iiily-Taxsitioii by .TukI^o. The taxation of costs by the Clerk in Equity, under the Act 17 Vic. cap. 18, may be reviewed by a Judge of the Coiut, and the application may be made by motion stating the objections to the taxation. Tiiii<>. The application is not too late if made at the next sit- ting of the Court after the costs are taxed, though they were taxed during the sitting of the Court. If the cleik, m taxing costs, acts on a wrong principle, the Court will review the taxation. Hendricks v. Hallet, 1 Han. 170. »0 Where plaintiffs were dismissed inconsequence of usury, the Court refused to interfere with discretion of Judge of Court in ordering that costs should follow the re- sult of suit. Jardinc v. McWilliams, 1 Han. 579. A|>i>eal<« not generally entertained in questions of costs. See Supreme Court in Equity. 91 Where an appeal from the decision of a Judge in Equity is dismissed with costs, the costs of the appeal are recoverable by attachment and not by execution under the Act 17 Vic. cap. 18. Smith v. Armstrong, Mich. T.y 1872. 9'i -Objections— Specific statement of. On av\ Hpjj^icntwu for review of taxation of costs, the oliJLctions should be stated specifically. Cudlip v. The lirchn; .{'c, St. Martins, 2 Puag:e and att<'ndance of \vitiie»<> ;i sdfedul.' annexed, and merely stated that " the an- ncx.d list contains a true statement of the names of the mtiKsspssubpoeaned, attending and examined at the trial," MS held insufficient, and where the clerk allowed theplain- ■23 ^ 3(i'2 COSTS. tiff on taxation of costs the mileagt) and attendance on such ai'tidavit, and also the costs of a jury of view on a former trial, which was granted at the plaintiff's expenst', the Court ordered a retaxaticni of costs, and Hrld, That tlie defendant was entitled to he indemnified for the costs thrown upon him ));, the plaintiff's act, and therefore or- dered the plaintiff to pay costs of tlu' ai)plication for re- view. SJiepluird V. ShepJiiiril, 2 I'ikj. 452. The (H)sts of review of taxation are cntii'cly in tlie ilis- crt'tio]! of the Court. IJiid. OJ — Itovii^w of ta\:ili4»ii — ni-rotiooim •ilalniK'ui of fart!^. Whcrc! an iitforney made itn itlMdavit on the statdmeiit of the jMasti'r, that certain items had heen allowed, and it appeared hy the taxed hill that they had been struck off, the rule for review of taxation was discharged with costs. J)()(' (Jon. Johnston v. Jdrdine, 2 I'lif/. 7. 9-1 -Taxation on «'I'B'oii4M>ii«>«ll <;iiai-^4>«< t'ov. When a party knows where deeds were quite recently, he ought to malu! sutlicient search l)efore making affiilavit that he did not know where originals were, and looseness in swearing without suliicient search, discouraged. Th'id. f>T - f 'o|>i4^$i) of ||»l«'i3<-lioiial»l<' itoiiiM. When the objectionable items in a bill of costs were vh;v small, the Court refused a rule nisi to review the taxation B(dl v. Mofi. Executors are liable to costs on a non-suit in an action winre in: iitiqttcs executor is pleaded. Mitvliell v. Loii(/, (J. HJ0 Where an executor declared, upon promises to liimsflf, and upon an account stated with him as executor, as well as upon promisen to the testatrix, and was non- biiited, the Court allowed the defendant her costs. E-reca- ijira of (iroscciiorx. Ajiiicir, Her. "29. H)l An administrator will not be relieved from his '.ability to the payment of costs under the Act 7 VVm, IV. vup. 1-1, sec. '28, where he moves, not on matters appearing it the trial, but upon affidavits which are sufficiently answered by the defendant. Snnlile, The Act extends only to cases in which execu tors or administrators were before that exempted from the payment of costs. Th<)iiij)S()ii v. AUansiiair, 1 Kerr, 209. IO'2-iiisolvoiit dohtoi'— A|>|>lic:itioiE. Costs will not be given on refusing the first a^jplication of au insolvent debtor except in aii extreme case ; but the ink' is otherwise on a second application, where the objec- tions made to the former one are not fully answered. McFiirhuie v. Gordon, 2 .1//. 1G2. I03-P;»jiiu'iit of roMtM— 4'w!irocccdiiigs ""•'' payment of costs. Defendant obtained judgment as in case of a non-sait, because plaintiff did not try his cause pursuant to a per- emptory undertaking ; plaintiff" having brought a secooJ action for the same cause, the Court stayed the proceeJ- ings until the costs of the ti^'st suit were paid, the lieteiiii- COSTS. 366 ant's atlidavit alleging his belief that the plaintiff was in- solvent, and the second action vexatious — though the plain- till stated he was prevented from trying his first action by the absence of a materiiJ witness. (But See Lhmvers v. }[(mjaii, 17 C. B., 530. Eatahrooks v. McKenzie, C. Ms. 41. Ill— XcM trial. Where a new trial is granted, " the costs to abide the evtut of the suit," and the same party succeeds on the second trial, he is not entitled to the costs of shewing couse against th^ rule for setting aside the first verdict. Nice v. Coiih; I HI. 7'., 1832. II.)— If the rule for a new trial is silent as to costs, the successful i)arty on the second trial is not entitled to the costs of setting aside the first verdict. IVeldon v. JFel- dull, -d All. US. 116— lloplcviii— l*iea— WitiicM<>ics— IVIatcriiility. Where, iu replevin, the substantial issue was the right to the property, which was found for the defendant, he is entitled to the costs of the witnesses called to support his plea, though their evidence may not have been exclusively applicable to that issue. Fearun v. Murray, 5 All. 173. ll?-:fl<)it;,':m:ec— Redoiiiptioii of iiioit^a^^^e. As a general rule, a mortgagee is entitled to his costs in a suit for the redemption of his mortgage ; but where he had been in possession of the property, and had not kept accurate account of the rents and profits, and claimed a considerably larger amount from the mortgagor than was ultimately found to be due, he was not allowed costs ; and lis the mortgagor had improperly disputed part of the afflonut claimed by the mortgagee, he was not allowed •^osts ; each party being ordered to pay his own costs of tlie suit. LiviiKjston v. Bank of New Brunswick, 6 All. 252. llS-Motioii for iiid;;?auviif 866 COSTS. aaa fill I cnrriod down to trial niid made a rriiKiiict, and the defend- ant's attornt y was ordered to pay tlio costs of rosistinf; the motion, on the j^round that tlie (h'fendant on the locord was only the nominal d( leiidant, and that the cause had been settled between the real i»arties, after the notice of trial, of which the attorney was aware, and he afterwards obtained a rule r.r ixtrtf for costs of the day, for the same default for which the motion for judf,'ment, as in case of a non-suit luid been refused, the Coiirt not beinj^ aware that it was the same cause. On a moti(-'i t(. set aside tliis rule, and f.>r the attorney to ans\v All. 217. 110 .^■ortu:ii(j:«>— roi-cfioi^iii-o i*isijiiitfr% i-i^^iu to <-om^ oC dofViidiiiff ••nil foi' i-<>4l4'iii|>tioii. in a suit for foreclosure of a mortgage, i>y which the mortgagor, in addition to other property conveyed, assifjned a mortgage given to him by M., the plaintilT is not entitinl to recover the costs incurred by him in defending a suit for redenrption brought against him l)y the assignee of the redemption of ^[., in which huit(ach party was ordered to pay his own costs. lian: N. B. v. Cronk ct l«'«'iii~ ^)<'V4>i'>il «-oiiiit«i. Where plaintiff inserted six counts in a declaration in rei)levin for the same i)roperty, no costs were allowed ex- cept for one count, llitiiiinitoii v. Girounl,^ Pun. J51. It{l--I^j(>4*tlll4'lll -rOIIH4>llt |-Ill<>. The table of fees established imder the C L. 1'. Act, 1878, ai)plies to actions of ejectment and taxahle umk consent rule. I)i>c il. Ilartt v. Jlnit/lcij, 8 rut/. lOH. ltt'i-l-:i«clioii IVtitioii Triiil. The costs of the trial of election jietitions should la taxed according to the same i>rinci[)le, as near as caiilH' COSTS. 367 as costs arc taxed under the C. L. P. Act, 1873, per Allan, C. J., and Wi'idoii and Fisher, J.J., Wetraore, J. diss., and Duff, J., (hthitdntr. Stevens v. Iloriers and Rijan, 1 P. dB. 64. Attaclinunt for costs should he granted hy Jud.i^e. See Attachment 29. See further Election Law, Ifihnt v. IIkh- ington. 123— \rl>lfr:ili«ii— C'oiinsol F«*r. IHd, by Allan, C. J., Fisher and Duff, J. J., That the expenses of counsel attending before an arbitrator must be considered a part of the costs of the reference, and not y.wi of the costs in the cause. Held, by AVeldon, .T., That it is in the disi'retion of the .Judge whether or not to allow a Counsel fee to the successful party where a cause is re- fc- ed to arbitration, and that the Court will not interfere \v:;li the exercise of that discretion. field, by Wetmore, J., That wluii a cause is referred to arl)itration, the suc- cessful party is entitled to a counsel fee which becomes part of the costs in the cause when the matter is referred. Milmoi-c V. Frersr, 1 /-*. ,('. />'. 705. l'21-rro»i»i l>(>iiiiin-or<<. Where there are cross demurrers, each party is entitled to the costs of the dennirrer on wliieh he succeeds. Whreln; axftiriHce, lOc, v. Steinirt, 3 Pitfi. 390. l*i'S-Aifiiiiii<>ii|— ||4>sii'iiiM:— <'oiiii*«c>IF4M>— Eqiiily <'oiii*t. \\ ill re motions ar(! made to the Court on the e(iuity i^idc supported by atlidavits, wliich are merely read by counsel, and tlierf is no opposition to the motion, they euiaiot he considered either as arguments of si)ccial mat- tors, or hearings, within the words of the Act 17 Vic. cap. 1^. iind in such case the Court has no discretion to tax oounsfl fees. Sh'wttrt v. Sfcirart, 3 Pii;/. nW. I'i0-\tf:u'|iiii(>iit — A|»|»|i4>alioii to <>iot awldo -K<'for«'Hec l>> .Iii«Ik:4> io <'oiiit. ^\\m\' an application to set aside au attachment, made toaJuilge at Chambers, was by him referred to the Court, wliie'i made an onler setting aside iho attachment with 868 COSTS. costs, the successful party was held to be entitled only to the costs of the application to the Court, and not to those incurred on the hearing before the Judge. Smith v. BuH-e, 3 Piuj. 599. 127--Rviiiaiict— Cost^i of tli«> day. Where a cause was several times entered on the docket at niai jyrius and made a remanet and again entered for trial at a subsequent circuit, but struck off by reason of the pliiintiflf not moving for trial, the defendant, on np- plication for costs of the day, including the costs of the previous circuits, was only allowed the costs of the circuit at which the cause was struck off. Doe d. Sherwoixl v. Stackhotise, 2 Pug. 298. l'.{§ — Kloction petition— f'oiiiiM«>l Fee -Sevntul fisil— Kiiie *iii('iit aw to 4>oM<«— ^ilici'ifrnialiinK iiiBaiillior- lae«l ciiai'K'e!!) — Witiif nm'm liL'«!s— CertitBcaic lor. A Judge may grant a second fiat for a counsel fee if, upon consideration, 1: Hiinks the first one granted in.sulii- cient. The petitionei opposed a motion to set usido a Judge's order to tax costs of an election petition according to the scale of fees under the Common Law Procedure Act, and the motion was refused. The rule was silent us to costs. Held, That the petitioner was not entitled to the costs of opposing the motion. Held, (per Allen, C. J., Wetmore and Duff, J. J., Weldon and Fisher, J.J., dissent- iiu/), Tluit a certificate or order is necessary for the taxa- tion of witnesses' fees on a trial upon an election petition under the Act 32 Vic. cap. 32, sec. 44 (Consol. Stat. cap. 5, sec. 47). Held, (per Allen, C. J., Wetmore and Duff, J.J.), where it appears by the sheriff's account that he had made charges not authorized by law, such charges should not be allowed on taxation of costs ; but (per Weldon and Fisher, J.J.) that, in the absence of any affidavit imiaign- ing the correctness of the sheriff's account, his return is conclusive. Stevens v. Ilyan et ai, 1 P. d- B. 547. 1)19— €ost!« of tiic day— Wlit'ii not costs taxaiilc as costs of the cause— Costs in not tryiiii; cause |Hir- suaut to unileitakiuK-Glisors, resisting a|»|>«»"'- nieiit of. If a rule for judgment as in case of a nonsuit, is diB» COSTS. 869 charged, on terms of giving a peremptorj' undertaking and paying the costs of the day, and tlie costs are not taxed, but the cause is afterwards tried, and a verdict obtained by the defondant, he cannot tax such costs as a part of the general costs of the cause. A plaintiff having failed to try his cause pursuant to a peremptory undertaking; de- fendant obtained a rule nisi for judgment, which was after- wards discharged by consent, and on the subsequent trial of the cause, the defendant obtained a verdict. Held, That he was entitled to recover, as part of the costs in the cause, the corits occasioned by the plaintiff's not trying pursuant to his undertaking ; and also the costs occasioned by the caiiSL' being made a remanet ; but not the costs of resist- ing an application by the plaintiff to appoint elisors. Styles v. Gilbert, 5 All. 166. 130.-DiMit$ii — 8nl>««eqnent ofler to snflfer Judgment. Where a Rule for a new trial is made, being silent as to coats, and before second trial had, defendani offers to suffer judgment by default under 18 Vic. cap. 9, (Consol. Stat. cap. 37, sec. 127,) and the offer is accepted, plaintiff 8 not entitled to costs of the first trial. Ryan v. Jamca, 2 Pu(j, 219. 870 COSTS. in;i— Ordoi' ol' AiiK'iidiiioiit. An indulgence granted to tlie plaintiff should not he granted at the expense of the other party. Where a party in the trial applied for leave to amend his declaration, and the application was granted and the trial put off, the costs ahide tiie suit. Held, That such an order was improper, that the costs should he paid hy the party getting the amendment. Smith v. Gcroir, 2 I'ikj. 425. 134— ]%«'\v enquiry on |>si viiK'til of 4'UMtM. "Where the Court grants a rule for a new encpiiry of damages on payment of costs, but the plaintiff does not comply with the terms of the rule, and pay the costs, the practice is to grant a rule to discharge the previous r-ile, unless the costs nre paid by a certain time. MrDomdd ci al V. CHmmiiKja, 2 Pikj. 378. AiiK'iidiiioiit or |»l4>a ~S<>V4'r:il ol>int allo\v4*d witliont |»ayin4>iit 4»f 4*4»««tM. S('v Pleading II. 51. Milncr v. M<-Kcii:ii'. <.'4»MiN :sll4»\v4'4l 4»iit 4»r 4'<<«iat4> (J4»nf4^«stati4>n 4»f' will. See Will. He If\ <'iai i^NH4>«i FlaintillN li^^lil t4» lia\'4' fin4liii;f on— <'OMtM. Sec I'raclice X.1V. 17. Smith v. Isolated Iiis. (Jo. Ini|»r4>|>4>r 4>iiti'y 4>r 4-an<>>4>— <'4»««tM ii4»t ailo\v4>d. See Ju \;ment as in cnse of non-suit I. 26. A** |4> all4»uaiir4> 4»l <-4»*il*« in si4>ti4>n«> ani^nin^t .InMticcs 4»1' l*4'ai'4». Ser .Justice of Peace IV. 18. Whittier v. Dihtde, VI. Si'.vKUAi, Dki'iCndants — Sf-veual Issues. 13«l— >>(>V4>i-ai 4l4'f 4>ii4lanf *i — A4>4|nittal. Where four defendants, sued in trespass, entered a joint defence, in which issues were joined in fact and in law, the COSTS. 371 plaintiff ol)tiiinc(l a verdict a{:;.ainst one, but the otlier three wfic iicqiiittfd on the trial, and judj^inent was ^iven for all tlio defendants on the issues in law, which did not <^'o to the whole eause of action ; after the lai>S(' of more than one vear from entering up the judgment, thr defendant's agent having attended the taxation of the plaintilf's costs, and matlc objections without making any claim of costs, and soon afterward the defendant against whom the verdict was found voluntarily paid to the plaintiff the damages and costs; and it not appearing in th s a[»plication that the (lefontlauts who were ac(j[uitted incurred any costs, or that the other defendant had incurred any further costs in the joint defence than if he had been sole defendant. Held, That it would require a strong a clear case to authorize the Court to interfere at such a distance of time. IlchI, also, That the issues in law not going to the whole cause of ac- tion, the defendants were not entitled to costs under the 7 Wm. IV. cap. 14, sec. 'if). McLnu/hliii v. Wilson, 'd Km 105. i:{(i-.4llooiitiir. By the Ordinance an allocatur is allowed to an acquitted defendant entitled to the judgment for his costs under 7 Wm. IV. cap. 14, sec. 24. Kileeii v. Burke, S Kerr 4 lit. 137— F.iitry of jii«l{;iii(>iif. Where, in an action of trespass agiiinst four defend;ints the plaintiff obtains a verdict against one upon which judg- ment is entered, and the other three are acquitted, the ac- quitted defendants cannot enter up a separate judgment for their costs, but the award of costs should be entered on the plaiutiTs judgment roll — same rule as to demurrer. MrLtiHiiJildu v.. Wilson, 2 Kerr G2G. 13S-S«'vernl Immiioj^— Dilli'i'cut fliidiiig^M In replevin, the defendant pleaded )toii ccpii, and pro- perty in himself; a verdict was found for the defendant on the th'st issue, and for the plaintift' on the other. Ilrld, ^st. That as the plea of non cepit v.'ent to the whole cause 372 COSTS. m^ 1 of action, the defendant was entitled to the general costs of the cause, but not to the costs of any evidence except such as was provided to support that issue. 2nd. That the j)laintiif was entitled to the costs of the other issue, and to have them deducted from the defendant's costs. Ilolderncss V. McKendrick, 2 All. 213. It must clearly appear that witnesses whose expenaes are claimed, were necessary to support the issues found for the party claiming. Ibid. 139 Where on an issue on a plea of property in re- plevin, the jury find the property iu part of the goods to be in the plahitiff, and the remainder in the defendant, the plaintiff is entitled to the costs of all the pleadings ; but each party is entitled to the costs of the evidimce arising on tliat part of the plea which is found for him. Read v. Botsfonl, 4 All. 476. Separate executions may be awarded ; or the Court may order the costs of one party to be deducted from those of the other, and execution to issue for the balance. Ihid. If, in such a case, the plaintiff neglocts to enter up judgment within a certain time, the defendant will be entitled to the posted. Ibid. 110-^i(>v<>ral counts. If the plaintiff obtains a verdict on one of several counts, and there is no finding on the other counts, he is only en- titled to costs on that count on which he obtains judgment* \V(dsh v. Fairweather, 2 All. 423. Taxitiioii of t>o!«ts on diirercnt issues. See Costs 8G. Ill— .\ollc pi'csvqui. Where plaintiff enters a nolle prosequi to one count of a declaration, the defendant cannot enter up judgment for his costs till the other counts are disposed of. Allison v. Smith, 4 All. 238. Eutry oa .iu(ljj:ninat roll— Application— Lateness. See Ibid, 3 Kerr 106. COSTS. 878 VII. Security for Costs. 1 A demand of jmrticulars is not such a step in the cause as to require the defendant to shew that at the time of making the demand, he did not know of the plaintiff's residence abroad. Johnson v. Glasier, Mil. T., 1828. tj A company incorporated in Canada, and having no property in this Province, required to give security for costs. Where security was dtmanded hefor*' [ileadinp;. and refused, defendant was allowed to apply, and obtain secu- rity at the next term, though he had pleaded in the mean- time. Quebec and Halifax Steam Navigation Co. v. ll'illis- ton, Mich. T., 1834. 3 A demand for security of cost sent by post, held sufficient. Abbot v. Ledden, Bert. 33. 4 Defendant must apply promptly after knowledge of the plaintiff's absence ; and if he allows a term to pass without applying, after he knows of the absence, security for costs will not be granted. Gibhs. v. De Veber, Bcr. 78. 3 Security foi* costs, without stay of proceedings, ordered by the Court after plea, and notice of trial, though the defendant might have applied sooner to a Judge at Chambers : the practise of making such applications at Chambers not being of long continuance in the Province. Vmcc V. Campbell, 1 Kerr, 163. 6 Where an application to a Judge at Chambers for security of costs has failed on the merits, a new appli- cation may be made to the Court on amended affidavits. Foster v. Amiraiw, 2 All. 541. VIII. Double Costs. If judc;ment is aftirmed after error assigned, the de- fendant in error is entitled to double costs under the Stat. 13 Car. 2, cap. 2, sec. 10. Qucere, Whether the defendant is entitled to such costs where the writ of error is non mssed. Gilbert v. Sayre, 2 All. 612. 874 COSTS. IX. I -OflVr Iil4'4l iiiHlor Art IH Vir. t'lip. », t<> ^iim>i' JikIk- iiK'iit l»y 4l<>raiilt. Where the defendant, before pleading, filed an olTer nnder the Act 18 Vic. cap. 9, to suffer judgment by dcfiuilt for $*250, which the plaintiff refused, and the defendant then plepded and gave notice of set-off, and the pliiintiff recovered a verdict for less tiian the sum offered, (ditVnd- ant'3 set-off l)eing allowed). J[i'I(/, That the oft'cr iiiiist he taken with rofi-ronce to the state of the pleadings at the time, and not having been renewed after the notice of set- off, that the plaintiff' was entitled to fall costs, and not merely to the costs up to the time of the offer. Milli'r v. Lake nut n, .1//. 510. *j Where a defendant after giving notice and par- ticulars oi" set-off, files an otter to confess judgment under the Act 18 Vie. caj). 9, without withdrawing the set-off or giving notice that tlu; otter is madt; without reference to it> it is prima Utnc, an admission that the sum ottered is the balance due after giving the defendant credit for his set- off. In such a ease, a plaintiff whose claim by his parti- culars exceeds i;20, does not, by accepting an otter for loss than that sum deprive himself of full costs by the Act \'l Vic. cap. 41). Turner v. ILtiniltoii. (> All. 150. 3 Defendant, in trover, about a month after the conversion, ottered to confess a judgment under the Act 18 Vic. cap. 9, for $18, which the plaintiff refused. On the trial (upwards of two years afterwards,) plaintiff re- covered a verdict of S19, — a part, $15 30, being found hy the jury as the value of the goods, and the balance as damages in the nature of interest since the conversion. Held, That as the amount tendered was more than the value of the goods and damages u[) to ihat time, the |.Itta)iiiK l*ro«*4'<>«liii|;M. Sir Bail ID. 4'ov'iiovil. St I' Cognovit. 4 <)il*i<>iil i-iilr. Si'f AiiiL'iuluient III. 7. ('oi-|»oralioii Siiiniiiai')' l*ror<'i-ali4»ii not lial>l«'lo atla«-liiii<>iit lor iioii-payiiioiil of C'0»it»tt Sac Attacliment 1. ('<'i-lili<-al<> of'.lii lor I'liii <'o>sl«>i. Si'c Judge (Certificate of Judge). Jury <'liall(>iip;c— ljat<>iic<>»lii« tlio oV4>nt of Miit \vlicr(> alHdavitiii did iioi riearly »tato liiat tli'fcndant had no kiiowltulgc of !!»iiit |»eiidiiig[. ■Set' Cameron v. Counell, 2 All. 398. (oiiviction. 8"e Justice of the Peace VII. iiVt 876 COSTS. WitncNMCs nttcndiiiice— Aflidtivit oT. See AlHdavit IV. lilt I'lioriitory l*roeer«llnK<>>i CowtH yrcncrnlly in dimcrp- lion of Court. See Supreme Court in Equity 3. Ai)poals not gonorally entertained in questions of costs. Ibid. E.i4>ctinent— Improperly ohtnining: Riiio to drfond- CoHtM alio writ L(;!. (See No. CO.) t'linll€iKy<> to nrray. Where the defendant cluillenges the array on the grouiul of affinity between himself and the Sheriff, and the challenge is sustained, the defendant is entitled to the co«t? of the day as a general rule. See Siroin v. Ilammimd, 1 linn. 332. Inquiry —Atteiiflniico—l%o Miifflcioiit ii*lice of couiiter- iiiHiifl— iJost»> nllo\V4>d. S.f Practice IX. 10, 11. New trial granted on payment < '• costs where the costs have been taxed and demanded of the attorney who ob- tained the rule, who was informed that unless the costs were paid an application would be made to discharge the rult ; the Court granted a rule for that purpose absolute, uoless the costs were paid in ten days after service. Sre Srrihncr v. McLnuchliu, 1 AIL 440. Penalty— By-lHw—Fredci'icton. Costs cannot be given for breach of by-law : the word " costs ■' in 81st section means costs of distress and sale. ^(c K.r parte Mo wry, 3 All. 276. Conviction sustained for penalty. Ihid. Applkatioii discliai'ired— Reasonable Krouiid!>« I'ur mnkiiii;— Costs refused to plaintifl. •b'fo Hardy v. Prince, 3 All. 264. Attorney-General— Retaining Fee— Costs. i't Attorney- General. EiecHtion foi;, in lieu of attacliment. Sfc Attachment. Cottoji v. Stack. Review from Ju«tiee*s Court. ''^''f Review. Wellinq ex parte. 24 378 COURTS. Fo\v«r or Siipi'oint' Court ov(>r rotilw laxrd by Jiid^c of County 4'o.ui-t oil :i review— <(ii»;i'i'. Set' Review. IVcUing ex pxi-tc. Kiilr to enter eaiiiMe. -SV'c Entry of Cause. Oidton v. Milmr. Ef^iate— c;oiite*^tatioii <»! uill. See Will, in re Hasen. Co!^tN a(;aiii««t .liistiee*« of the I'eaee. QiKere, Wlietliev tlie Dominion Act 32 unci 33 Vie. cap. 29, sec. 134, relating to coats in actions again.st Justices of the Peace is not iiltrn vires, the Federal Parliament. (I//(7- tier V. Ih'hhlr, 2 Piui. 243. liiQiiiry— l'ro<-ee(liiiKM taken tliroii|;li iiii««take of t.iu-1'itl — .\o co«»t*» alloued. See llduuKiiitn v. Cormier, 2 Pii(i. 45(K Attaeliiiient will be granted by Court for noii-p:i.v- nieiit of eo«tN. See Attachment 52. Bishop v. Mechan. Danla^cit*« of action. See Damages i. 34. I'cveher v. Roup. .JiiMiee of Feaee— Pow<'r to a%vard co«t*i on di*iiiiii*>siil of inforniatlon. See Justice of Peace Vll. 6. 4 Ol :N<'1LL0K!§. Koininntion of. See Election. cot KTS. See Admirality — City Court. County Court — Exchequer. Portland, (Town of.) Inferior Courts — Justice of the Peace. Probate Court. Supreme Court of Judicature. Supreme Court in Equity. Surrogate. Matrimonial C>»nses. ^ If COUNTY COURT. 379 4d(li'r«><>«iii$£ Jury— AioiiM by— E\iiiiiiiiiiti<>ii of— Scr Attorney X. Evidence I. COl .XTV C'OI KT. l-JiiriMdiclioii — .\o4*t>*»sai-y lliat |»i-o('«>«Mliii;;«i •«lioiild lH> tit'St <'<'|-tifi«Ml. The Supreme Court has no jarisiliction over a cause in the County Court until the Juilge has certitieil a copy of the proceedings, as directed by Acts 30 Vic. cap. 10, sec. 24, and 33 Vic. cap. 20, sec. -1 ; therefore, a party who has? rocovered a judgment in the County Court, against which proceedings for appeal had been taken, and notice of uppeal given, but the proceedings had not been certified by tile Judge, is not entitled to the costs of appearing to answer the appeal. 7v*//«« v. Jitmcs, Mich. T., 1870. 'i-lll<>^il>l4' 4'4>i'ti(i4>al4; 4)f |»i'<»4'eesiili ol .Iii4l^;e :irt4>i- ;;rniitiiitf rule iii*«i— Pr4>(>4^cii— <»if.M;t- KoralliiiK *^vi»l4'ii4'4'. ^Miere the plainiili' proved goods sold and delivered to tilt defendant, beyond the amount recoverable in the County Court, and also admitted the receipt of goods from and work ^^one by the defendant, which, if deducted from the plain- tifi's account, would have brought the amount within this J^nnliction ; but omitted to prove any agreement that such M ;i I ! I ! 360 COUNTY COURT. goods and work were to be taken as payment, whereupou the defendant moved for a non-suit. Held, That it was discretionary with the Judge to allow the plaintiff to be recalled to prove that there was such an agreement. Shnpsoii V. Glass, 1 Pun. 99. S— .liid}(o rorii«tinK lo licnr motion — .Iiiri^idiction. Where the Judge of the County Court refused a non- suit moved for on the ground that the case was beyond the jurisdiction of the Court, and the defendant moved for a new trial on the same ground before the successor of the Judge (who had died,) and he, being of opinion that the Court had no jurisdiction, and that he had consequently no power to grant a new trial, declined to make any order. Hiiil, That he should have ordered a non-suit to he en- tered ; and the cause was remitted to the County Court for that purpose. Boltenhouse v. Black, East. T., 1872. Ai'tioii l»i'oii|;lit ill iiiiipi'eiiip Court— Title to land in %'olvi'd— €ost«* allo\ve«l. Sec Costs, 10, 11, 12. O— Insolvont Act ol' I §69— Judge pi'opei* party to iicai petitiou— or uiisit rounty. The County Court Judge of the county in which tlic demand on the debtor to assign is made, is the proper party to hear the petition, although the debtor may reside and do business in another county. Ex parte 'Thomus, 2 Ilan. 163. 7— Taking examination of debtor— County. A Judge of the County Court may examine and make his order for the support or discharge of any debtor, in auy county within his district, even if the debtor has been ar- rested and is in gaol, or on the limits in another county in his district. Ev parte Jardine, 1 Han. 572 M— Sureties oil limit bond— Render. Judge may make order for render Of principal ; " ^^"'' in Act 12, cap. 39, sec. 14, includes sureties on limit hmi See Bail 18. COUNTY COURT. 381 9_l{iglit to stay in'oceediiiffs— C.'ity Coiii't— liit«>rlorii- tory oi*«lor— Appeal. The County Courts and the City Court of St. John, being botli courts of limited jurisdiction, and, in suits for the recovery of debts, of concurrent jurisdiction ; a Judge of the County Court has no power to stay the proceedings in a suit brought to recover a debt in that court, on payment of the del)t without costs, on the ground that the suit might have been brought in the City Court, where the costs are less than in the County Court. Haninfiton v. StciC'irt, Hil. 'L, 1873. (,/((rt'/v, Whether there is any appeal to the Supreme Court under the Act 30 Vic. cap. 10, from an interlocutory order oi a Judge of the County Court. But an order abso- lutely to stay the proceedings in a suit is a final decision, and may i)e appealed from. Ihid. 10— Uts relatiiiK to tit .lui-oi-^ in ri'iiiiinal matters. The Acts relating to the attendance of Grand and Petit Jurors at the County Courts are within the powers of the Local Legislature, under " The British North America Act, 18CT," sec. 92, as pertaining to the " Administration of Justice," and the " Constitution and organization of Pro- vincial Courts," and do not belong to the Parliament of Caniida under sec. 91, as " Procedure in Criminal Mat- ters. " Re/jiiKt V. Foley, East. T., 1873. II-JikIko inakiiiK ex pairte order Tor new trial. In an action in the County Court, the Jury having found a Verdict for the defendant, contrary to the Judge's direc- tion, lie made an ex parte order for a new trial. On ap- peal, the order was reversed, and the case sent back to the County Court, with directions to issue an order calling on the defendant to shew cause why a new trial should not be granted. Commercial Bank v. Price, 1 Pug. 97. l'«>ii4> of ^iiiiiiiiioii>>— l>iii'4>n'iit 4-oiiiil>. The Judge of the County Court of St. John and Kings, was called in hy the Judge of the Albert County Court, to try this case under the County Courts Act, and issued a summons lor a rew trial while sittmg at his chamlievs in St. John, but alterwards discharged it on the ground that he had n« power to act in St. John. IIclil, That he had power to issueja new summons in Albert, the first being a nullity. Sticrrs v. Lucas, 2 i'u;/. 70- iSce now, Consoi. Stat cap. ol sec. 51, allowing Judge to transact business at Chambers of his County for othn County.) 1 1 — lii^olvoiil At'l ot IMft» Oidrr of MiKljifc A County Court Judge acting under tlie Insolvent Act of i.S()l), havuig made an order that defendant, the assignee of the I state of H. L., pay to plaintiff, assignee of the estatt? of A. L., the [)roceeds of the sale of a lease which A. L. had assigned to if. L., and which defendant contended w; ■ void. Ilci'l, That the Judge had power under the oUtii section ol the Act to make such order, and that it was noi necessai-y to decide whether the Act gave him power to order the assignment to lie set asid<\ JlchJ, also, That au appeal lay from such order to the Supreme Court. Shiiiihi; iis^iimec, >S:c. v. McLcod, 2 I'nn. 131. ta — l*(>%V4'i' of'.fiKltfr to ;jriiiit i'«>li4>l lo Itail. A Couuty Court Judge sitting at Chambers, has tlif same pDWer to grant relief to boil to the limits, as the Supreme Court. Merritt, A-ssifjnn, dr. v. Cl'iuccij, 2 P"'h 47H. I<«— I.siikI -({iii'stioii^ l'4'liltill^ lo. There are many cases in the County Courts in whieli questions of the title to land must incidentially arise, but title to land may not be in question. Foivler v. Fovitr, 2 I'Uij. 488. COVENANT. 383 4|>|M'aK fioiii (homily 4'oiii-i. Sir Appeal. Powor ol Miulgo ill tfai'iiislioo |>i'04><>*«s. Sec Garnishee Process. Ko powor ill .111(1^4' to iiiuk<> oi-dor foi- $000 under iloiiH>*»l<>ad Act. .So Insolvent Act, Re ILirrison. <'oi:.\TV loiKT .iidoti<>4> of -Tiiii<> %vii«>ii u:ii'4'ii to «>av<* 4'o««tK. >Vr General Eules 77. >uli(-<' of iii4]|iiii'y to «>av4> 4-4>«>t*i> -Iii*>iiii1i«'i4>ii«-y «>f. .S(< Practice IX. 10. 11. i"ove:\4.\t. 1 -t'oii^lrtirlioii— lliitiial aii4l Iii4i<'|»('iiiit. TIk defendant covenanted with the plaintiff to teach him the trade of a blacksraitli, and the ]daintiff covenanted t ) serve the defendant faithfully for five years, and not to ai'M ut himself from the defendant's service without leave. //«//. That these covenants were mutual and independent, am! that the non-performance liy the plaintiff was no ( his I'lV.nant. Hmitry \. Gijl'm-'l, 1 .1//. 7iiv4'yaii4<'. ^\ here the assignee of a covenant running with the wiiT had parted with his estate therein previous to bring- lus the action. IliM, Tiiat he liad i)arted with his action also. Wnlhirr V. ]'cni()n. 1 Kor 5. • 884 COVENANT. -Action— Lessor with— Kent. against lessee— Reversion paiied An action of covenant for non-payment of rent does not lie by the lessor against the lessee, where the lessor has parted with his reversion in part of the property, since the lease ; the rent being entire and not apportionable- Hector, iic, ,ot' Sackville v. Bacon, 6 All. 134. Particnlar Covenants— .4 ssiicnee of Term— Improve* nienls. See Landlord and Tenant VI. 2. C— For qniet enjoyment— Dnni overflowing. The defendant by deed, containing the words '' grant, bargain and sell," conveyed to the plaiutiti" a mill und mill privilege, and afterwards erected a dam on his own laud further down the stream, by which the plaintiff's land was overflowed, and his mill prevented from working. Held, That this was a breach of the covenant for quiet enjoyment given by the Act 10 Vic. cap. 42. Wells v. Trenliolm, -2 All. 671. 7— Against £rections—Assignee— Estoppel. Plaintiffs being owners of land below low-water mark in the harbour of St. John, granted to H., the owner of a lot fronting thereon, the right to extend below low-water mark, a wharf built upon his lot, and H. covenanted for himself, his heirs and assigns, that he would not erect any buildings on the wharf so to be built. H. afterwards ex- tended his wharf beyond low-water mark and assigned to the defendant, who erected buildings on the wharf. Low- water mark had receded to the outer-end of the wharf since the grant was made. Held, That the covenant bound the assignee, and that he was estopped from denying that the wharf was built and occupied subject to the conditions of the grant, and from claiming a right to build, as owner of the land by accretion. Mayor, (C-e., oj St. John v. Smith, 'i All. 103. «—»^essee-Kiglits— Renewal ollease—ApprniscineiK- Pnynnent Tor improvements— Entoreiii^ valid covenants. A lease by a Church Corporation created by Act of As- COVENANT. 385 sembly 29 Geo. III., cap. 1, contained a covenant, that, if at the expiration of the term, the lessee should desire a new lease for twenty-one years he should be entitled to the preference ; and in case he should refuse to take such new lease on the terms required by the lessor, that the buildings then on the demised premises, erected by the lessee, should be appraised, and that the lessor jirst payiivj to the Imce the amount of such appraisement, should be entitled to enter upon the premises and have the improvements : and in case the lessor should not consider it expedient to pay the amount of the appraisement, that then the lessee should be entitled to receive " a new lease of the premises lor a further term of twenty-one years apon the snnw terms iii'h;iiiiUtio}is of this present lease." Held, on renewal of the lease, t'^at the lessee was entitled to the same coven- ants I'oi' pp^ment for improvements and for delivering up possession on receiving such paym-ent, as were contained in the former lease. Bedell v. Rector, cic., of Christ's Church, Fredcridon, 3 All 217. (ji('>'re, Whether by the words " tirst paying," etc. in tbe covenant, the lessor's right of re-entry at the end of the term, was suspended until the value of the buildings was paid to the lessee ; or whether the lessor would only be liable on the covenant if he re-entered without payment. Hid. A covenant to do one of two things at the option of the covenanter, one .-^ -vlricb is lawful and the other not, may •/; which is lawful. Thus a covenant in a oorporatioB to pay the lessee lor the jd at the end of the term, or grant him a new lease for a further term of twenty-one years on the same terms and conditions as the former lease, may be en- forcwi so far as relates to the payment of the buildings, though that part which relates to the renewal may be void imder the Stat. 13 Eliz. cap. 10. Ih. (.huere, Whether the Statute 13 Eliz. cap. 10, applies to Church Corporations in this Province. Hid. be enforced a: .• lease b^' a cij ' buildings on thi i'i hi' 886 COVENANT. n—iiootl titl<' ExiNtiiii; l4>ii«»4> — ^iiii-i'4*ii«tcr. The detendant demised land to M. tor a term of years, by lease under seal, and afterwards with the consent of M,, conveyed the same land, with an adjoining piece, to the plaintiff in lee, and covenanted that it was free from en- cumbrances. M. remained in possession of the land after the conveyance, but paid no rent. IL'hl, That this did not amount to a surrender of the lease by operation of the laW' and therefore that there was a breach of the coveuant. Bnhlut V. Coiriicrtlnntiti, '6 All. 254. The mere consent of the lessee to a conveyance by the owne>- of the land, of his interest in the reversion, will not constitute a surrender of the lease by the operation of law- He must be a party to some act done, the validity of which he is estopped from disiniting, and which would not he valid if tlie lease had continued to exist, [hid. lO— To k4>i-|» >li'iirlioii. Defendants being the owners of land through whidi ;i stream of water flowed, and across which they had built i dam connecting with a natural bank or point of land which formed part of the dam, leased tiie land adjoining; below the dam ti> the plaintitl's and P., (who afterwards assigned to the plaintiffs, and their assigns, and covenanted to main- tain and keep the dam in good re[)air at all times diu'iiii; the term : [irovibo, thnt if the sup[tly of water should he cut ot^' by the destruction or injury of tlie da-ui, the rent should bt- suspended. The bank was broken by an extra- ordniary tluod, which overflowed and injured the plaintiti'- property. Held, l^t. That the covenant to repair only ex- tended to the artificial dam built by the defendants, auil not to the natural bank. 2nd. That even if it did extend to the natural bank, the accident was no- breach ot tnc covenant, if the defendants repaired the dam within a rt:i- sonalde time. 3rd. That even if there was a breach of tlif covenant, the plaintiffs were not entitled to recover for the destruction of their property and suspension of their hu-^i- ness, as damages resulting from such breach. Philp^^' Thi St. John Wafer Compunii, 4 AIL 24. COVENANT. 387 The covenant to keep the clam in repair ia a covenant running with the land ; and ScnihU', That the damages re- eoveialile for breach of such a covenant, are confined to those sustained l>y tlie covenantee or his assigns, from the privation of the proper use ot the demised premises hy the 'iefault of the covenantor. //'/'/. S'liihlc. 'L'hat if the injury to the plaintiffs" property was cau^fil ly the negligence of the defendants in not keeping the (lam in repair, the plaintitis might recover the conse- qiK'ntial damages in an action on the case. Ih'nl. II I'oi- lilir to laiKl — K%'i<'tioii. Thf defendant conveyed land to A. in 1844, arid eove- naiunlthat he had full [lower and authority to sell ; A. put a tenant ill possession, who gave up the property to B., w!;ii claimed title to it as heir to his father. B."s father tooi. [lossession of the land in 1814, and died seized in 1824, ItuvinL! a widow, wlio a few years after conveyed her right and eavc up possession to a i)erson under whom the de- ttUiiitnt claimed. Held, 1. That B. had a good title against t\en- oi:e iait tilt Original grantee, and therefore had a ni;ht to enter and evict A. '2. That B.'s entry having lieen iiukIl- under his own title, uud not under that of A.'s ten- ant, it iunounted to an eviction, and that A. was not bound I'l lOie iiiinging an action on the covenant, to resume pos- session of the land, or to uiw notice to the defendant of B.'s claiiu. Bni, \. I)>irh>tr, 1 AIL 4()5. I'.i ItH'iicii— Pi«':t si«'tioii. fo an action of covenant upon the words " vrant, i»ar- gain and sell,"' in a conveyance of land, assigning as a U'tacL the existence of a prior mortgage, the defendant I'leiuieil that the mortgage was recorded in the public I'tcoi'cls, and that the plaintiff received the deed suiiject to such moi'tgai.;e : an issue thereon having been found for the Jtlc-uilunt, judgment was given for the plaintiff, ion <>}>• •^''I'lf' '' rcfUcto, the plea 1 eing no answer to the action. Hie covenant is broken immediately, and the plaintiff need "^'t wait until he is evicted before bringing his action. '' "' V. /-J,,/, 1 ,1//. G03. 388 COVENANT. 13 Brrnrh in lifd'tinie of «>ovoiiniilc«>— Action- By U'lioiii— Heir— Exceiilor. If a covenant for title is broken in the lifetime of the covenantee, no estate descends to the heir, and an action for the breach is properly brought by the executor. 7;,v/, v. Barlow, 1 .1/^ 465. 14 Where the breach of covenant for title, and the damage arising therefrom, both occurred in the lifetime of the testator, the action for such breach should be broiii^ht by the executor. CiinningJiiii«>iit ~ .\'ot iiiuior ^«'iil— ('o%'4>iiniil not iiisiiiitiiiiiiii»i4'. A policy of insurance on goods against loss by fire wns eti'eeted in the name of G. F. A: Co. ; the plaintiff H. F. having afterwards become the owner of the goods, tin agent of the company made and signed the following en- dorsement on the policy: "This insurance is herein- con- tinued in the name of H. F." Held, (assuming that tlie agent had power so to continue the assurance for the bene- fit of the plaintiff,) That the endorsement not beint; under the seal of the company, the plaintiff could not maintain covenant on the policy. Frost v. Liverpool, Loiniui >inil Globe Insurance Co., THl. T., 1871. lO— Covenant to reni'w— Specific perforniiiiice— <'ovfii> ant rnnninv; with the land. A. leased land to B. for twenty-one years, with a covenant for himself, his heirs, and assigns, that at the expiration of the lease, the b uildings on the demised pre- mises should be valued by disinterested persons, and A., his heirs, or assigns, would then either pay for them at such valuation, or continue the lease to a further term at the same annual rent, at the option of A., his heirs or as. signs. After the expiration of the lease, B. continued in possession without any new agreement, and paid tlie ground rent to A. up to the time of his death, a year and eight months after the expiration of the term ; and during part of this time. A., as a commissioner of police, leased a part of the premises from B., and paid rent to him. Alter COVENANT. 389 A.'s death, the deleudant, who was his devisee, negotiated with the plaintiff (the assignee of the lease), respecting a renewal, but nothing was agreed upon, and the defendant finally leased the land to a third person, whereupon the plaintiff filed a bill for the specific performance of the covenant to renew, and to restrain the defendant from leas- ing the property. Held, 1 . That A.'s covenant was not a mere personal or collateral covenant ; but related to and ran with the land, and bound A."s assignee. 2. That it was A.'s duty, on the expiration of the lease, to exercise big 01 tion of renewing, or paying for the buildings ; and that, by his acts, he had shewn his intention to continue the lease. 8. That a Court of Equity had jurisdiction to decree specific performance of the covenant to review. 4. Tl>it the covenant to review for a " further term " meant ii term of 21 years. The bill prayed s[.ecific performance vl an agreement to renew, made between the plaintiff and defendant, after the expiration of the lease. Helil, That though this agreement could not be enforced, either be- cause it was not proved, or because it was not in writing, the plaintiff was, nevertheless, entitled, under the Act 17 Vic. cap. 18, sec. 4, to specific performance of the coven- ant to renew. Irviii v. Simottds et o.l, 6 All. 190. I9-Pl«>iic(><^sity of iiicltiiii; out •^aiiit- in d<'rlar!itioii— <'oveiiniit not to •t«ell— Breach. Where the promise or covenant contains an exception ^x proviso qualifying the defendant's liability, the declara- tion must state the exception or proviso, and it will be ^I'ong to state the contract as an absolute one ; but if the covenant or clause in an agreement is absolute in itself, without any exception or proviso, or any reference to any, it may be declared on as an absolute contract, although, in a distinct part of the deed or instrument, there is a pro- viso defeating or qualifying it under certain circumstances, ^uch a proviso being in the nature of a defeasance, and to leset up on the other side. Hall v. Allan, 2 Pug. A covenant, not directly or indirectly to sell machines "1 certain counties, is not broken by an omission on the ^ iHf.: 800 COVENANT. covenanter's part, in selling the machines where he hud a right to sell them, to stipulate that the purchasers .should not re-sell in any of the counties w! re the covenantee had the exclusive right of sale. There might he a Ijriacli of the covenant, if it were shewn that the covenanter knew, when he sold the machines, that the intention of the pur- chaser was to re-sell them in a county where the covenan- ter had no right to sell. Ihid. IN— 4ii«><>*itoi' iiii«l lioir— A|»prai!K«>iii«>iit. Where the terms of a covenant specially provide tor its performance hy the heir, it is sulticient to l)ind the latter, though the ancestor may not covenant in the usual form '• for himself, his heirs, ^-c." Therefore, where ii lean* under seal contained the following covenant — " And it i? here])y mutually covenanted hy and hetween the parties to these presents, that at the end of the term all buildings then on the premises shall be valued and appraised In- two persons, one to be chosen by G. P., (the lessor,) his litirs, t*tc., the other by J. M., (the lessee,) his executors, c^-c, and it shall then be at the option and election of the said G. P.. his heirs, &c., to pay such appraised value or rent-w tlit lease."' This was held suthcient to bind the heir of tb lessor. In an action brought for breach of such a covr nant, it is necessary to allege a request and refusal to ap- point an appraisor, and this is the case, ; veu though th-? lessor was only a tenant for life and died before the expira- tion of the term, and the lessee was evicted by the reuiani- der-man In such a case the heir is bound by the covenant of his ancestor, even though by the latter's death the leas^- became void as to the term demised. Qiucre, Whether, where the heir is an infant, a retjuest made upon him to appoint an appraisor is sufficient. Woods V. Peters, 2 Puc;. 478. Proviso** or exceptions— Dcrinratioii — .Hoiileaxam'*' See Pleading I. Hall v. Allen, >:t iiiiiit. Si'c Equity 4. C llltlM'l V. ,S'm Witness. <'Ui:»iT. Ki>piiii«> ol>liiU- As«'iil. .Sm Absuiupiiit 45. S'l Action .it Law VII. '2. riivity- P<'i'<*oii"l K4'*<|»oimiltililjr. ,s,, New Trial II. '1± •Hillary of I»i«'ji«'Ih'I'— €"oiiiiiiill«'«'. The plainti^' was engaged at a certain salary as a pitiicher at !i meeting of the memljers of the church to whicli he belonged, and where a committee was api^ointed to collect bubscriptions to pay his salary. The defendants wti't deacons of the church preisent at the meeting, and thei'H was conflicting evidence whether they were the com- mittee ami whether they had made themselves liable to the lilaintift". Held, That it was properly left to the jury whe- ther the plaintiff had engaged on the personal rtsponsi- liilitv of the defendants, or whether he depended upon the voluntary subscriptions of the church. ijiuerc. Whether the mere nomination of a party on a committee renders him liable on contracts entered into by tilt other members, unless he has taken some part in the proceedings. Lawton v. Wilder, 2 All. 41 f>. liitoxicntiiiK Litiiioi-iii. The prohibition in the Act 17 "Vic. cap. 15, sec. 13, against selling Hquors on credit only applies to inn -keepers !«k1 tavern-keepers. See McAuley v. Lawlor, 4 All 600. iuqiiiiy-JiKmiiiciit by Default— Evidence. Alter judgment by default on common counts, defen- i^ant, on execution of writ of inquiry, may shew that he contracted merely as agent of third person to whom credit ^^as given. Sec Faids v. Sargent, 3 Kerr 248. 392 COVENANT. ('oiili-SK'f— Whether witli Firm or pergonal iiieiiilici- ol. See Contract 15. lnMiraiir«> Broker— Credil to— AKeiit. Sec Principal and Agent 1, 2. Work and Lahoiir— Av:re<'iiieiit to 4're«lit toward*) Rent, Se<' Assumi^sit 111. 40. l-]iitry oil hooks— <.'redit. See New Trial II. 45. Raipnond v. Cuunniiifi. Piiblie Aj;:«'iit. L. was a road-master, and employed C. to do certain work on a public road, the agreement between them being that the work w as to be paid for when L. collected the road moneys. L. went out of oftice before he collected the moneys, and in an action brought by C. against L. the court held that the credit was given to the fund and not to the personal liability of the road-master. Regina v. Tr^;)/'//, 3 Pag. 47. See also Clarke v. Toke, 2 Png. 880. <:UEDITOK. ^B tiue s See Insolvent Act of 1869. ^H Jiid|;uiciit Creditor— Remedy at L .au bel'or* — A|M)li(i«- ^B tioii in Equity. ^^B three See Equity G. ^H ^'^^Acl (JRIi^IINAL I. PROIKDURE AND PRACTICE. LAW. ■B of proc( II. Indictment. Prosecutor. Allegations. 1 Stealing. ^B i'&vised Place. ^H. tbo.se Smuggling. ^H '«'etiot Copies of Indictment. ^B The Embezzlement. ^H <^ftheB Different Counts — Separate Offences. ^H ^'Mto ^1 Hi CRIMINAL LAW. 393 Fraudulent Appropriation. Death — Cause of. Feloniously f-triking. Resisting Constable. Regulations — Breach — Misdemeanour. Forgery— Perjury. III. Evidence. IV. Miscellaneous. luminary Convic£ioii. See Justice of the Peace IV. I. Procedure and Practice. l-Revoime Act— Operation. The Revenue Act 15 Vic. cap. 28, sec, 68, enacted that any penalty or forfeiture inflicted under that Act should be recovered by action of debt or information ; section 7 '3 en- acted that if any person should assault any revenue offi- cer in the exercise of his office, he should, on conviction, pay a fine not exceeding iJlOO, nor less than .i'oO, which line should be paid to the Provincial Treasurer ; and in case of non-payment, the offender should be imprisoned for a term not exceeding twelve months, nor less i;han tln-ee months, at the discretion of the Court. Held, That tlie Act only limited the discretion of the Court as to the amount of fine and imprisonment on conviction for an as- sault under section 72, but did not alter the ordinaiy mode of proceeding by indictment. Reg. v. Wdlsh, 3 AIL 54. 4-Alionitiou by Statute— Effert ol. An offence committed before, though tried after the Uvised Statutes came in force, is not indictable under toose Statutes, though the words creating the offence we not altered thereby. Eeri. .^ MeLamihlan, 3 All. 150. The forms of indictment in the Schedule to Title XL. 0' tlie Revised Statutes are inapplicable to offences not re- f'«t(l to in that title. Eeo. v. McLanrjIilan, 3 ill 159. '25 • M 394 CEIMINAL LAW. 3— Necessary Allegation— Grievoii« Bodily Harm. An indictment under the Act 12 Vic. cap. 29, for caus- ing grievous bodily harm, must allege the oflfence to have been committed "maliciously" in the words of the Act. It is not included in the word " felonjiously." Reg. v. Jopc, 3 All. 161. 4 — Adjoiirniiient of Court. "Where a Circuit Court is adjourned to a future day, in consequence of unfinished civil business, the criminal juris- diction of the adjourned Court is not confined to the trial of offences committed before the adjournment. Reg. v. Den- nis, 3 All. 423. 3— Arrest of jiidi^iiieiit— Objections. Objections on motion to arrest judgment are confined to the questions in the case stated by the Judge under the Act. Sec Reg. v. Fenety, 3 All. 132. 6— Authority to find lesser ofTence—JTIode of procedure established. The Revised Statutes cap. 159, sec. 16, by which, on a trial for felony the jury is authorized to acquit of the felony and find a verdict of guilty of a misdemeanour, if the evid- ence warrants it, establishes a general mode of procedure in all criminal cases, and is not confined to felonies exist- ing at the time of the passing of the Statute; there- fore, on an indictment for a felonious assault under the Act 25 Vic. cap. 10, the prisoner may be found guilty of an assault only. Reg. v. Ryan, 1 Han. 116. 7— Jury reconiuiendin^r no bill— Termination. Where a bill of indictment laid before the Grand Jury was returned by them into Court with an endorsement " the Grand Jury recommend no bill," and no further pro- ceedings are taken against the party, it is a termination of the prosecution. AUvard v. Sharp, 1 Kan. 286. §— Assault— Revenue officer— Breaking open biiildins: —Justification. By the Revenue Act 11 Vic. cap. 2, a revenue officer is authorized to enter any building wherein he shall have CRIMINAL LAW. 395 cause to suspect smuggled goods to be concealed, provided that before entry, information on oath shall be given to a Justice of the Peace, that such officer has reasonable cause to suspect such goods are concealed therein, and that such Justice shall go with the officer to such building, and au- thorize him to enter and search for goods, and if the doors be closed and admission denied, then after first demanding to be admitted and declaring the purpose of the entry, it shall be lawful for the Justice to direct the officer to enter the building and search for goods. Held, That to justify the breaking open a building, there should l^have been, Ist, a written information on oath ; and 2nd, the actual presence of the Justice at the breaking ; his being near to the place is not sufficient. Reg. v. Walsh, 2 All. 387. Not opening a building after a proper demand, is a suflicient denial within the Act. Ibid. If the breaking open is unlawful the officer cannot jus- tify the seizure of smuggled goods found within the build- ing. Ibid. Semhlc, That an order to enter, given to a police officer present with the revenue officer, would be sufficient, and that he would be presumed to be acting in aid. Ibid. 9— Ititoriiiatioii to recover penalties— Breach of Reve- nue Law— Dutiable articles. By Act of Parliament 8 and 9 Vic. cap. 93, gunpowder is prohibited from being imported into the British posses- sions in America, except from the United Kingdom or some British possession. Held, 1st. That gunpowder coming fiom a foreign country, could not be proceeded against as a non- enumerated dutiable article, under the Provincial Revenue Act 11 Vic. cap. 1, for being imported into the Province at a place not a port of entry, contrary to the Act 11 Vic. cap. 2 sec. 21. But 2nd. That it was liable to seizure and forfeiture under the seventeenth section of that Act, for being landed without entry at the Treasury. The Attorney General v. four hundred kegs of Gunpowder, 2 All. 493. 896 CRIMINAL LAW. The Provincial Legislature has power to impose addi- tional grounds of forfeiture for breach of the revenue laws, on goods subject to forfeiture under an Act of Parliament. Ibid. 10— Valid panel. A sheriff had summoned twenty-four Grand Jurors, but in his list there was the name of B., whom he had intended to summon but did not, and he had omitted to add the name of C, who had been summoned, whose name was, however added to the list by the Clerk of the Court. Twenty- two jurors, including C, were sworn, all of whom had been duly summoned. Held, That the panel was valid. It is no ground for quashing an indictment that some of the Grand Jury were related to the officers who arrested the prisoner, neither is a sheriff disqualified from selecting and summoning the Grand Jury, because he directed the ar- rest. The inclusion of names of unqualified persons in the petit jury panel is not a ground of challenge to the array. Where the sheriff had summoned twenty-six persons as petit jurors, and the Judge struck off the last five names of the list — Held, That the summoning of the additional number did not vitiate the panel, and that the last live names were properly struck off.. Rcgina v. MaiUoux, 3 Pug. 493. 11— Dciinii'i'ci* to cliallcng'e- Witli«li'a\val of. On the trial of a criminal case, the Attorney-General de- murred to a challenge to the array, and the demurrer was overruled, whereupon the Judge allowed him to withdraw his demurrer and traverse ; Held, (Weldon, J., disscidienh',) That this was a matter in the discretion of the Judge, which ought not to be the subject of review, but, per Wel- don, J., That so soon as the demurrer was held bad, the panel was thereby quashed, and the whole should have been entered on the record. Ihid. 13— €liallcii{?c. On a criminal trial the Crown has a right to direct jurors called to stand aside, and is not bound to challenge 1' CRIMINAL LAW. 397 for cause until the whole panel is perused. It is a matter in the discretion of the presiding Judge, whether to require a challenge to the polls to be in writing. Expressiona used by a juryman are not a cause of challenge, unless they are to be referred to something of personal ill-will toward the party challenging ; and the juryman, himself, is not to be sworn when the cause of challenge tends to his dis- honour—as whether he has been convicted of felony, &c.^ or whether he has expressed a hostile opinion as to the guilt of the defendant, though he may be examined on tho voir dire as to his qualification or the leaning of his affec- tions. Regina v. Chasson, 3 Piig. 646. 13-lii«>>olveiit Act of 1 869— Offence under— Special or Common Jury. Defendant was tried in August, 1876, for certain of- fences against the provisions ofthe Insolvent Act of 1869, committed while that Act was in force. There was no evi- dence as to whether or not the proceedings were commenced before the Insolvent Act of 1875 came into operation. Section 148 of the Act of 1869 required that all offences under the Act should be tried by a special jury, but the Ulst section of the Act of 1875, providing for the trial of offences under the Act, omits the clause requiring a special jury. Defendant was tried by a common jury — Held, on a case reserved by Allen, C. J., and Fisher, Wetmore and Duff, J. J., Weldon, J., diss., That the summoning of the •Jury, being a matter of procedure, the provisions of the Act of 1869 were superceded by those of the Act of 1875. iiiMiiiK constable— rorm of Exoriiiioii. An execution issued by a Justice of the Peace is suffi- cient, if it substantially follows the form K in the schedule to the Eev. Stat. cap. 137 ; and any person resisting a con- stable in executing it is liable to indictment. liep. r. McJonaUl, 4 All. 440. lO-Rcfiilatfons— Penalty— iflisdcmcaiioiir. By Act Wm. IV., cap. 28, sec. 5, Boards of Health were authorized to make such rules and regulations for the pre- servation of the public health, and the pretention of infec- tious distempers, with such penalties and forfeitures for breach thereof, as they might deem necessary. By subse- quent sections of the Act they were authorized to enter buildings and cause the removal of anything injurious to health ; to close up streets, etc. ; to prevent intercourse with vessels, and order them to quarantine; and by sec. 11, whoever should violate any of the orders of the Board, or wilfully neglect to act in obedience thereto, or should resist or obstruct the lawful execution of any such orders, should, for every offence " be deemed guilty of, and punishable as for a misdemeanour." The Board made a regulation against the use of slaughter-honses within certain limits, bat attached no penalty to the breach of it. Held, Ist. That the omission of a penalty did not render the regula- tion void ; and that the defendant was liable to indictment for a breach of it either at common law or under the 11th section. 2nd. That the 11th section applied to the viola- tion of any regulation or order the Board was authorized to make, and was not limited to the orders authorized by the sections of the Act, subsequent to the fifth section. Refl- V. Hartt, Trin. T. 1833. 30-Forgery— Bank note— ^¥hat amounts to. Forgery, or uttering in this Province a writing purport- ing to be a bank note issued by a Banking Company in the State of Maine, amounts to the crime of forgery, though it « not proved that the Company had power by its charter to issue notes of that description. Req. v. Brown, 3 AM 13. 404 CKIMINAL LAW. '■i 41— Perjury— Power to administer oatii. A commissioner authorized to take affidavits in the Supreme Court, has no power to take an affidavit of the service of an order in case of review of the judgment of a Justice of the Peace, and the party swearing falsely in such an affidavit cannot be indicted for perjury. Rep v. Mcln- tQHh, 1 Ilan. 372. aa Semhle, Perjury may be assigned where the oath has been administered on the Common Prayer Book of the Church of England. .SV<' McAdant v. JVeKter, i Kerr 176. Sec Perjury. 23— Overseer!* of poor— Not aecoiintinif— Indictnicnt. An overseer of the poor of a parish is liable under the Acts of Assembly 26 Geo. III. caj). 28 and 48, and 33 Geo III. cap. 6, to an indictment for not accounting at the first General Sessions of the Peace in the year, for moneys re- ceived by him for the support of the poor during the pre- ceding year. It is not necessary that the indictment should be against all the overseers, nor that it should allege that they all neglected to account, if it charge the defend- ant specifically with the receipt of money for which he did not account. Reg. v. Matthew, 2 Kerr 543. 24— Use or word ^^reioiiiousiy*^— Instead of words in Act— Objection wlien to be taicen— 4inendinent. An indictment for doing grievous bodily harm, which alleged that the prisoner did — "feloniously stab, cut, and wound." &c., instead of alleging, in the terms of the 17tli section of 32 and 33 Vic. cap. 20, that he did " unlawfully and maliciously " stab, &c., is good. A defective indictment is amendable under 32 and 33 Vic. cap. 20, sec. 32, and any objection to it for any defect apparent on the face of it, must be taken by demurrer or motion to quash the indictment before the defendant has pleaded, and not afterwards. Regina v. Flynn, 2 P. d: B. 321. 35— Intent— Setting Are— Allegation. An indictment, charging a prisoner with having felon* cision was r CEIMINAL LAW. 405 iously and maliciously set tire to a barn containing hay, be according to the form contained in the schedule to the Act 32 and 33, Vic. cap. 29, (malicious injuries to pro- perty) is good, and it is not necessary to allege the intent to injure or defraud the prosecutor. Ilegina v. Sonde, 1 P. cC i?. 611. 46 AiiK'iidiiiK liKlictiiieiit— Tcriii^i. An indictment, framed under the 147th section of the Insolvent Act of 1869, omitted the words " with intent to defraud his creditors." Defendant pleaded to the indict* ment, but afterwards applied for leave to withdraw his plea and demur, but the Judge decided that, if he allowed this he should also permit the prosecutor to amend the indictment by inserting those words. Held, That his de- cision was right. Ilegina v. McLean, 1 P. cO />'. 377. III. Evidence. I Evidoiico— *siou ol Accoiiiplifo. In an action of trespass for false imprisonment, the defendant pleaded that a felony had been committed, and lie had reasonable grounds to suspect the plaintiff, and therefore arrested and detained him until he was taken before a magistrate. Held, That the confession of a third person that he, together with the plaintiff, committed the felony, was not admissible in evidence as proof of the felony. Blah- v. Hopkins, 1 Kerr 540. i-AVirc ol one of two parties on trial not competent wilness for eitiicr. A. and B. were tried together on a joint indictment for au assault on a peace officer, and the wife of A- was offered as a \Yitne8s to disprove the charge against B. Held, That her evidence was properly rejected, but had the husband not been ou his trial she would have been a competent 'fitness. The Queen v. Thompson and Conroy, 2 Han* 71. Idiin, (See The Queen v. Thompson and others, L. R. ^ol 1. Crown C. Reserved 377. mp 406 CBIMINALLAW. 3— Dec<>aseeiiibly— Coiivirtioii. It is no ground for quashing a conviction for unlawful assembly on one day, that evidence of an unlawful assem- bly on another day has been improperly received, if the latter charge was abandoned by the prosecuting counsel at the close of the case, and there was ample evidence to sus- tain the conviction. Reg. v. Mailloux, 3 Pug. 493. 6— Declaration of prisoner before being- charged with crime. A declaration made by a prisoner, tried on an indict- ment for larceny, before he was charged with the crime, in answer to a question asked him, where he got the property is evidence on hid behalf. On the trial of an indictment for larceny of a watch, the prisoner's counsel called a wit- ness W., who stated that the prisoner was drinking at a public house on the evening when the alleged offence was committed, and had the watch with him ; that W. went home with the prisoner, and they sat down in the house, that while they were sitting there, the prisoner fell upon the floor and the watch fell out of his pocket, and W. piciied it up and asked him where he got it. His answer to this question was rejected. The prisoner being con- victed, it was held by the Court on a case reserved, that tht evidence should have been received, and the conviction ^as quashed. Reg. v. Ferguson 3 Pug. 612. ^-Declarations— Prisoners— Depositions. ^\ here several persons were resisting constables who nought to arrest them, and M., one of the persons resisting, '^as killed by one of the constables, and G., one of the lattei was also killed by a shot fired by the other party ; on 408 CBIMINAL LAW. the trial of an indictment for the killing of the constable, a question put by defendant's counsel to another constable, on cross-examination, as to whether he had not boasted that he had shot M., was held to have been improperly re- jected. Questions relating to collateral facts may be put to a witness for the purpose of discrediting his testimony and shewing his interest, motives and prejudices. There- fore, on the trial of indictment for murder, the following questions put to a witness by the prisoner's counsel on cross-examination, viz. : Whether he had not declared that no Eoman Catholic should sit on the jury ; whether he had not been constantly advising with the Attorney-General, as to which of the jurors should be ordered to stand aside ; and whether it was not his desire, as a member of the Government, to procure a conviction, were held to have been improperly rejected. Where a number of persons, against whom warrants had been issued, were met to- gether, at a certain house, and on the officers of the law attempting to arrest them, one of the latter was killed by a, shot fired by some of the party, though it was not known by which, and all were indicted for murder. On the trial of one of them, it was held competent for the prisoners who were not on their trial, and were called as witnesses, to state the purpose for which they went to the house, in order to disprove the inference that they "were there for an unlawful purpose — (Wetmore, J., duhifantc ;) though de- clarations of tlif^ in-isoners would not be admissible, unless accompanying and explanatory of an act, and thereby be- coming part of tJ'.b res (jesto'. Evidence of one crime may be given to shew a Liotive for committing another ; and where several felonies ,ire all parts of the same transac- tion, evidence of all is admissible upon the trial of an in- dictment for any of them, but where a prisoner indicted for murder, committed while resisting constables about to ar- rest him, had, with others, behig guilty of riotous acts several days before, it is doubtful if evidence of such riot- ous conduct is admissible, even for the purpose of shtwiug the prisoner's knowledge that he was liable to be arrested, and therefore had a motive to resist the otiicers. I't^P"- CHLMINAL LAW. 409 siriop.s Miaile and signed by a [)avty at an inquest may be received in evidence to contradict him, whetlier the inquest was illegiilly taken or not, as being statements of tlie witness lufult' on a ijrevious occasion. Rcu'nui v, Cliasaoii/d Piu/. 546. n-StaH'iiieiil •»> |»ri«oii«i*<«i. Section 32 of the Act 32-88 Vic. cap. 30 is directory, and a i^tatelnent made l)y a jirisoner, as provided for by that Alt, may be used in evidence against him, although the Justice has not com[)lied witli the [trovisions of that sec- tiiia, if it appears that the prisoner was not induced to make tl.t statement by any promise or threat. Rcii. v. Sanrie, 1 /'. ,(• B. fill. 9-liioiolveiit Art -Evidence — I iiiiiisiN'nal nlleKatioii. On the trial of an indictment against an insolvent for iitmoug other alleged offences,) disposing of property which remained unpaid for, otherwise than in the ordinary course 01 business, it is competent for the defendant to give in fvidfii 'C the reasons for the transfers stated at the time. Viucreau indii/tment against an insolvent alleged that huv- iiKj iiKiilc an assignment uiuU-r the Insolvent Act, he muti- lated and altered one of bis books ; and the evidence was tliat the mutilation or alteration took [)lace about three months previous to the (iefendaut's assignment ; the jury fouud that the act was done with intent to defraud his creditors ; and on a case reserved, it was objected that the evidence did not support the indictment, but Held, That the allegation of Ituvin'j iiidde an assignment was imma- terial, and the conviction was sustained. If an insolvent lias book debts owing to him, however small, he is bound to insert them in his statement • and if he omits them with intent to defraud his creditor ^ 'le is guilty of a misde- meanour, and the fact of calUng ..uc- statement a schedule lu the indictment is not a misdiscriptiou. Reg. v. McLean, 1 i'- d- B. 377. IV. Miscellaneous. < «uMabH'-| ,M's— .liidjfe certifyiiiK. A Judge presiding at a Court of Oyer and Terminer has 410 CKDIINAL LAW. no power to make an order for the payment of constablf for attending the Court, or swearing the attendance of wit- nesses in a criminal trial. (But sec Acts of Assemlih- ;jo Vic. cap. 12) MiiU'ujd)! v. liainsfonJ, 2 Ilait. 1. Certified fees of a constahle may be recovered in an ac- tion hefore a Justice of the Peace, when sufficient liinds m County Treasurer's hands to pay them. lhi at Cini'.ity Co-irTs are N\itliiu powers nf 1( cal J,( jLii.-latmc. >(c (oniity Courts 1.0. 4«liill4>i'y .^l:ii'i-i<>)*«a lilt— Conviction Tor— On trial I'oi- It-loiiy L. was tried on an indictment under 32 and 88 \'ic. c,i;.. 20, containing four counts. The first charged tljat he nid unlawfully, ^.c, kick, strike, wound and do grievous lodily harm to W., with intent, &c., to maim ; the second cliarged the assault as in first with intent to dih^figure; the tiiird charged the intent to (Hsable ; the foui'tli charged the in- tent to do some grievous bodily harm. The [ risonei wiis found guilty of a common assault. Held, That L. \va< rightly convicted, section 51 of the Act 32 and 33 Vic. cap. 20 authorizing such conviction. licjiini v. Lackey,!}'-^ B. 198. illeiiK r<>a. If a man knowingly does acts which are unlawful, tlif presumption of law is that the inms rea exists; ignoraiiif of law will not excuse him, llcij. v. Maillou.r, 8 Pinj.V.'i Nollo prosequi— Power of 4'lerk ol" 4'ro\%ii to <'iiH'i- ^iecoiiil iii^dietinent for «llc prosequi, and then sent another bill before th(i Grand Jury, containing a count tor receiving the indictment on which the the conviction took place, and on the trial he consented that tiie prisoner should be acquitted of the charge accordingly — field, on a ease reserved, 1. That the CAerk of the Crown has authority to enter a nolle prosequi. 2. That a not. pros, being entered the prisoner could be again indicted f'^r the same offence. ■]. Even admitting that the Clerk of the Crown has no au- tliority to enter a iiol. pros., the conviction upon the count for receiving would be good, each count being a separate in- lictmeut in itself. Reuiiut v. Thornton, 2 P. i(; B. 140. CKI.IIIIXAI. l!%FOK:TIATIOi>i. — It the conduct of the prosecutor has been blame- 1 — aUo, tile Court will not grant a criminal information against a magistrate, at his instance ; but if the conduct of tlif magistrate is not justifiable, the rule will be discharged without costs. Rex v. Miuiro, Knst T. 1831. •i A rule for a criminal information will be dis- charged with costs, where the facts upon which it was ;;;ranted are disproved by the affidavit on shewing cause. litn.BaU's, Trin. T. 1832. €KO«S Al'TIO]^. ■Niv Damages 1 ] . <'ltO!!i»l) i:X4.11l.\4TIO.\. ^0 I'i^hi to lU'ovc jiistificatioii upon, hclore > to t'oiiti'iitn or writloii •stattMiioiil. ^''■e Evidence VIII. ^H\\K U\ CHUM- on land ii««4> All. 113. 3— Siiniiiisiry application for reilnef-^'^circ ftciait. "Where the Attorney-General had instituted a suit on behalf of the Crown by scire facias on a Treasury Bond, conditioned for the payment of duties, the Court refused upon a summary application on affidavits for relief under the Statute 33 Hen. VIII. cap. 39, to determine the ques tion as to the defendant's liability, the defendant not hav ing pleaded to the sci. fa., and the Attorney-General not as senting to the application. Regina v. Street, 1 Kerr 373 Sureties application tor relief under cap. 39, sec. 79. Sec Principal and Surety 7- CKO^VN ORANT. I. Construction. Boundaries. Evidence. Possession. Meaning of Words. Necessity of Inquest of Office. II. Eights. Mines and Minerals. Fishery. Glebe. 33 Hen. Vlil CROWN GRANT. 41$ Seizin. Ferry. Eight to Soil. III. Exceptions. Mines. Minerals. Coals. IV. Admission. Adverse i^ssession. Again f-t Crown. Extension of boundaries by. Subsequent Grant. I. Construction. 1 -Controlling line. Letters patent granted land described as extending from a certain point thirty-two chains, or to a certain road, and thence to run a certain distance " on said road :" the road was sixty-nine chains distant from the starting point. Held, That the words of the grant necessarily imported that tlie second alternative in the description should be the controlling one, and that the land was bounded by the voad. Rex v. Wilson, Bar. 1. 'i-Boimded by lake— illnvgin. A grant of land bounding on a lake, conveys the land to the margin only, and not to the centre of the lake. Miles v.Burka, 1 P»(/. 237. 3 -Dividing lines — Boundaries — Several graiit<«— Proli'ZM'tioii. In construing the description of boundaries in a grant, ascertiiin lines, in the nature of fixed o1 ejects, will con- trol courses and distances, when the course of a line is not expresst'il, protraction on tlie plan of the grant maybe resorted to as an element for ascertaining the course. The marks of the original survey arc to lie sought for iiuil ad- hered to in determining the boundaries of a grant. H7/W/(- /(/// V. LtiiiiiH, 2 Ivcrr 27'>. 5— Kiib*«(N|iiviit ;(r:iiits- Ki'fci'ciK'i' to. If the bounds of a lot of land are clearlj- ascertained bv the grant, it cannot be extended by subsequent grants; but if tiiere is any uncertainty as to the lines of a grant, subse- quent grants of the Crown to other persons of adjoiniuij lands on which the lines of the prior grant are described, may bf reierred to, in order to shew where the Crown con- sidered the lines of the prior grant to be. hoc n, 2 Kvrr B51. •1 'r— Adoplioii of liii(> hy <'ro\t ii— l><><«c>ri|»tioii in |ii'f> vioii«> ^i-sintft. Plaintiff claimed, under a grant issned in 1868, wliicli descril'ed his land as running to the rear or last line of tlit Penobscott Association Grant, and referred to the plan an- nexed, which laid down that last line ; but the plaintiff con- tended that the line so described on the plan was nottlit correct line of the old Penobscott grant, and that his land therefore would extend beyond that to where he conteuded the correct line was. The defendants shewed that by several other grants besides the one to the plaintift, tbt same line as laid down on the plaintiff's plan had been described on the plans as the said last line, ai.d the Court Held, That in that way the Crown had adopted that as the true line of the Penobscott grant, and that the jilainliff could only claim to it. Arwin v. McClure, East. L ISH- CROWN GRANT. 415 (i-«>«'(|ii<'iil ^raiit— Ei'idencc of |>OM*ie<»Mioii out ot <'i-o\vii. Whtie land granted by the Crown in 1830 was des- orilx'il as being in rear of a certain lot No. 33, and hetinrn th(><■ (leiii. PonstnnJ v. Vrnnm, 2 Kerr 351. 7-E\|>l:iii:itoi-.v. but not to nIttM- or vary* It there is any uncertainty as to the lines of a tract of land granted by the Crown, subsequent grants from the Crown to other persons in which the prior grant is referred to. may be looked to for the purpose of considering where till Crown considered the lines of the prior grant to be ; but not to vary its description, or alter its construction. i'l' '/'■;//. Carpenter v. Jones, 3 Kerr 155. ^-Kvulonrc— ltoiiii«l!». A grant from the Crown is not conclusive evidence as to the liounds of any grant referred to therein, further than -luh hounds affect the premises of the grant itself. Doe ih'iii. Citrpnilcr v. Jones, 3 Kerr 155. !M'oiir«>(>!>> and liii(>«« l»,v «loii>i*t'i|>tioii in ^l■allt. Tiitr true lines of a tract of land must be ascertained by v.,v courses and distances specified in the grant, and par- tiiularly delineated on the plan of survey annexed. When tlidv is no ambiguity in the description, and no proof of any actual survey contemporaneous with the grant, vary- lustroin the courses and distances therein specified. Doe hi- cribed as commencing at the south-east angle of the same lot No. 7, it was represented as being 15 chains wide. Held, That this could not interfere with the prior grant h the plaintiff. Rohimon v. Wilson, % Kerr 301. 11— LiiieM u|;re«rtif>iii|f «>i'i-or — Reasonable time. In ejectment, the lessor of the plaintiff for upwards ol twenty years before the defendant's occupation, was in pos- session of the locus in quo as part of lot 43, granted in IBOl), up to the rear of the boundary of that grant, ran by a Crown surveyor in 1828 ; and it appeared in defence tliat the line so run in 1828 was at the instance of the lessor, who took part in the survey and established the rear boundary, and this rear boundary was made the base line of a second tier of lots surveyed and returned to the laud office, upon which a grant of such lots afterwards came out and was predicated, and the defendant became the pur- chaser of lot 43 at Shsriff's sale, and went into possession of the locus in quo as part; of it about eighteen montiis be- fore the trial ; the lessor, in reply, shewed that alter such possession he, without the assent of the defendant, got another surveyor to run the rear line, who made it eight rods farther in than the Crown surveyor had done, and en- deavoured to shew by several witnesses a mistake in the first rear line, and that the lessor, by reason of his long possession, was entitled to the surplus as against the dt- fendant's deed of lot 43. The learned Judge however ruled at the trial, that, whether, a mistake or not, it could not be rectified after so long a period, but the first line having been agreed to at the time, and acted on by all parties in- terested, neither the Crown itself nor any person coming ii under it, could then dispute such line. On motion lor a CROWN GRANT. 417 new trial, on the grouiul of misdirection — Held, That such direction was right. Semhk, That sixteen years 'c not a reasonable time within which to rectify such an error. Dm' dm. Behlmj v. Ilallet, i) Kerr 359. 13-LiiioN Hi^ccrtaiiiotl by oniiior Ki-niit— Extt'iioi- Boiiii«liu'icM aii«l Interior Divi««ioiiH iiiroiii«i!^t«'iit — AcqiiiOMCtaicc. The plaintiff and defendant being proprietors of adjoin- ing tracts of land, the boundary between which tracts had not been ascertained by actual survey at the date of the "rant and was in dispute — the tract belonging to the plain- tiff being contained in a grant made by the Crown in 1809, and that of the defendant in a grant made in 1806. Held, That the true line must b(^ ascertained by the terms of the earlier grant, regard being lirst had to the natural boun'^- aries stated in the grant, and in subordination thereto, to the specified courses and distances — giving preference to the one or the other according to circumstances. Brevier V. Goran I/, 4 All. 144. The expression of (quantity in a grant is descriptive, and is not to be disregarded where the l)oundaries are doubtful. Ihid. The courses and distances of the exterior boundaries of a grant are rather adhered to, than those of the interior division of the tract into lots, where both cannot be recon- ciled, and the dispute relates to the exterior boundary. mi The running and marking of a line by one party, but not in accordance with the true line between adjoining grants, having only been assented to on the condition that the true line should be ascertained and run, cannot establish it as a conventional boundary luitil it is acquiesced in and acted upon by both parties. Brevier v. Ominy, 4 .1//. 144. l!t-Boiiiii«>niiM-<>*>— A«>r<>i'fiiiiH'«l Aiiixip. ^\'llt^e one of the lines of a grant was described as run- ning a certain number of chains, or tlie north-westerly angle of a grant to A., such angle being capable of ascer- tainment, controls the distances mentioned in the grant, whether it exceeds or falls short of the specified number of ehains. Jhtuxaii v. Mmrhniffi, 2 Ihiii. 11. ■ •'f— l^iiiid riiiiii|iro%-4>4l oi- riio«>(>ii|»i4Ml witliiii Twenty 1 4>III'^ — 1\<> A4lV«'l'«>«' l*0«<>M4*«iiWi4>ll. The grantee of tln' Crown, according to the ordinary modf of granting wild laiul in this Province, l)eing dfonieil ])r'niiii facie in possession of the land granted when tiurt is no adverse occujiant. it is sufficient for a plaintiff in ejectment, who claims under such a grant more than twenty years old, to shew that the land witliin that period remained in its natural state and unenclosed, hue ikin. iJis l)(inrs V. W'JtUc, 1 Kfvr 595. I<»— R4'4itsil«— I\4m-K4'g:i<>*lij — IH4mo«>.l. A grant of land from the Crown to A. in 1H()5 recited that a prior grant of the same land had been made to B. in 1705, under the great seal of Nova Scotia, and tiiut such grant had not been registered in this Province, as required by the Act of Assembly 26 Geo. Ill, cai). 2, and also recited that it had been represented to the Government of this Province that the land had been sold and conveyed by B. to A. llch], 1st. That the recitals must be taken together, and that in the a1)3ence oi any other evidence of the grant to B., and of the conveyance by him to A., the title of A., under the grant of 1805, was not disproved by the recital of the prior grant to B. 2nd. That the non-registry of the grant to B. under the Act 26 Geo. 3, cap. 2, need not be found by inquebt of ottice in order to enable the Crown to re-grant, at least, to the original grantee or his assigns. l>oe (km. Dt's Barres v. miitc. 1 Kerr 5^5. 17— ^)iil>oi<>qii4>iit CJi'aiit— K4>coKnition 4>f Llii4>Niiiii|»tioii 4»f' A4lo|>lioii by Crouii. A grant from the Crown to A. and others, was described as extending from the first bound 500 chains, or until it CllOWN GIJANT. 410 met the piolon^'ation of the rear lino of a i)rior <,a'avit. Tlie line of A'a. grant whs extf:Uiii'(l tiu- ^A)[) chains, and a rear liiK run at the end of that distance, upon which vear line till Crown alti'rwnrds hounded several Kif>nts of land hy , Tliat as hitweeu the owners of lots actual survey, m the giant to A., and the grantees in rear, that line must 1); considered as the i)oundary hetween the grants, though it appeared iiy a sulisequent surve\ that it was twenty chain!? too far t(» the re;ir. llrhl alxi), I'hat as the Crown, after discovering the error, took no steps to rectify it, it ini'.'lit lie pivsuuicd to have iidoi)ti ,1 it as the rear line. (i.ni.li,, v. MrKilliwiN, 2 .1//. 3«ioii— lii(|ii«'«>t ofOtliiT— Aiillioi-ily i» Kiv4> !\oti4'<'. The Crown iiy letters patent luider the great seal, '.'ranted tn the d'^fendant tie' right to occupy land for t\\>nty-one year' iless the same should sooner he re- ([uired l)y the Cr on notice of which the grant was to cirase and Im- void. Held, on an ioforniation for intrusion, alter notice and refusal to give up possession. That as the removal of the defendant was not founded on any hreacli of condition, nr forfeiture, no iii([nest of office was neces- sary to terminate his right. Tlit (Jncvit v. Ifrbcrt, 2 -1//. 427. Scmhlc, That a notice that the Clovernment required till laud, signed hv the Survevor-General of Crown Lands in Lis official character, was sutticient, without proof of ai.\ previous itutliority ironi the Crown to give the notice. 11,,; The Crown, hy subsequently laying out the land into lots and granting it, recognizes the authority of the Sur- veyor-General to give the notice. Ibid. lfl-\Vord>i •• hsiiik uv ♦'dtf«'." iiipsiiiin^: of— liSik*'— Kijflit t»««oil. \\here a grant from the Crown to B. was descrihed as "''esiuning at a stoke standing on the bank or edge of iioimd Lake, and (after describing other courses), thence south, etc., to a stake standing on the westerly bank or edge 420 CROWN GIJANT. of said liiko, and tlu'iice following the several courses of the said bank or edge, to the place of beginning." lldd^ That the words " hank or edge," were intended to exiirtss the margin, and made tlui water's edge the houndarv of A's grant. >s. received from the Crown a grant of Hound Lake .., n}■ a grant of an Island, " with all the contiguous small Islands tliat are joined to, or connected with tliesnid Island hy a beach or shoal dry at low water,' an Isliind that is connected with the principal one by a shoal wl.iili is only dry at extraordinary tides will not pass. /'«, dnii \. Hill, 2 All. 587. " Low water" means low water at ordinary tides. !l>i,L 11. IIUJHTS. 1.— iVIiiK'M iiii«l lliii<>rail<>» <'oii4lilioii - <'oiiMi'ii<'fi4'4'M««ity 4»f' lll4|ll4>St 4»r Olti4'4>. TIk' Crown granted by letters i)atent to B., liis exitu- tors, etc., the sole and exclusive right to make use of, work occupy and enjoy for his benefit and advantage for the term of twenty-five years, all mines and minerals whioli might then have been discovered, or which might, during the cc^ntinuance of the letters patent, be discovered within the Idunds of certain described lands, paying thi^'relbre (piarterly during the term to the use of the Quten, one shilling per chaldron for all coals which should be raised from the mines, and a duty of five per cent on the value of all other minerals which should be raised diiriijg the term. I'roriso, That if B., his executors, etc., should neglect to pay the rent or duty at the times s[)ecifie(l, or should not commence to work the mines effectually within two years, the letters patent should cease and be void, and it should be lawful for tlie Crown to enter. Held, 1st. CllOWN GUANT. 421 That until mines wcro discovered and entered upon, the instrument did not amount to a lease, l)ut operated either as a license to dig for minerals or as a grant of an in- corporeal riglit only ; and therefore that no in(iuest of oflioo was necessary to (liable the Crown to take advantage of a a l)reach of the condition. 2nd. Tliat the patent was not abioliiteiy void i'or hreaeh of th(3 condition, b'lt voidal)le onh- at the election of the Crown, and that the intention of the Crown to take advantage of the breach was suf- lici'-ntly manifested by the grant of a new patent to D. in- coasistent with the previous patent to B., without any riitry by the Crown. !iid. That if the patent to B. had o[)irateil as a lease of the mines, or granted a cor[)oreal ikiiHlitament, the Crown could n(jt have taken advantage of a forfeiture, so as to re-grant the mines, without incpieat ofotlice or .^rirc fiici'Oi. h' (ral \. Piilfij, 3 AIL 57. •i-risliory. By the Act 11 Vic. cap. 31, the Governor in Council was ■Uithorized to grant leases or lioens'-ss of occupation for Fishery Stations on the ungranted shores, beaches or islands of the Province. A grant was made to the plaintiff for the exclusive leave and license to occupy and enjoy as a tishing ground for the term of four years, a lot or beach aiaitted and described as follows, viz : " lot No. 4, on the outside of Portage Island ; with the full and exclusive privilege of using the said lot or station as a fishing sta- iioii." llelil, That this grant did not convey any right of lishing, liut merely a right to occupy a certain portion of tilt shore, and therefore that the defendant was not liable to an action for setting nets in front of the plaintiff's lot lelow low-water mark, and thereby preventing the fish from mtdingthe plaintiff's nets. Hierlihij v. Locmlr, 3 All. 204. A grant of land to the Rector, Church Wardens and ^tstryof aparish " for a glebe," sufficiently signifies it to ''^ for the use and benefit of the Rector, under Act 56 Geo. III. cap. 11. Urctor, dr., of Hampton v. Titus, 1 All. 278. 422 CROWN GEANT. 4— §<>i»iii— Po<>««ii«'<4Mioii— (Jiiocciipicd Land. A grant of land from the Crown under the great seal, conveys seisin to the grantee, and his possession will priiiin facie be deemed to continue, while the land remains un- occupied and unimproved. Doe dein. Kbnpsoii v. Crnft. l Kerr 540. "^ — A g)-antee of the Crown is deemed to be in possession while the land remains unoccupied and unimproved. />,/ V. ('hun; 8 All. 501. ^4>— I^o Ui|;lil lo ^oil. A grant from the Crown of a privilege to build mills in the bed of a river, does not convey any right to the :«oii, therefore the grantee cannot, before actual entry in the exercise of the privilege, maintain trespass against a per- son for building a mill upon the [)lace where the privilegi was granted. I'rink v. J till. Knst. T. 1831. M— raiit of Laud BctwiM'ii lliy:li aii«l Low-Wator.Maik — Jii«!t M*iil»li4>uiii. The plaintiff was the owner of lot No. 1 in the city oi St. John, granted nine months before the charter oi tlit city, which lot was, by the terms of the grant, to extend to low water mark. He was in the act of erecting a pier on the land between high and low water mark, when he was interfered with by the defendants, acting under the au- thority of the Corporation, who removed the pier as an obstruction and a nuisance. Trespass being brougbt. lidd, vWelden, J., dm.), that the plaintiff's grant was subject to thk) Jus publicum of passing and repassing between h# CROWN GKANT. 428 and low-water mark, and that the Corporation, who are by law the conservators of the harbour, were ju.stitied in re- moving the obstruction. Broini v. llectl, 2 Pa[i. 206. III. ExCliPTIONH. |-:Tlill«'« illKl lllilK'l-SllM. The Crown may grant land, and except the base mines ami minerals therein, McMahoit v. B<-rt<>ii, 2 All. 821. By a ji;rant from the Crown of a tract of land ' with the api urtenauces and hereditaments thereto belonging, and mines and minerals ; saving and reserving all mines of t^ohl, silver, cop[)er, lead, and coals ;" ccjal mines art' ex- cepted, though no other minerals have been discovered in the land. Such an exception, without reserving a right to enter and dig, will not, as a legal incident thereto, give a I'ight to do any act on the land which will injure the sur- face ; and Qii(crc, Whether a bare right of entry would be given as incident to such exception. Iliid. Sanhle, That if the mine had been opened and worked hy the Crown before the grant of the land, the rights inci- ilent to the exception would have been more extensive. Ihld. 'J— All <'»:ils— ('oiiMtriictioii —Injury to «»in"r{i<'t*— Lir«"ii«»«'. An exception in a Crown grant of " all coals, and all gold and silver and other mines and minerals" extenils to all carbonaeeous minerals ; and therefore a mineral, though not strictly coal, is excepted. Gesncr v. C'ninis, The construction of a Crown grant cannot be limited by the lioyal instructions, directing the G-overnor of the Pro- vince to reserve to the Crown certain minerals. Ibid. A license from the Crown to dig minerals in granted land where the mines are excepted out of the grant, will not juBiify an injury to the surface soil. [hid. 424 CROWN TIMBER. IV. Admission — Advekse Possession against Crown. 1 An admission in a grant from the Crown under the great seal of the Province, is evidence against the Crown. lic.v V. Wilson, Bcr. 1. *i— Adverse |»owMi>«>*!>>>ioii a|;niigM Croivii — Siilticiciicy. To prevent a Crown grant from taking efi'ect on tiie ground that the Crown had been out of [)08se8sion for twenty years before that grant issued, the adverse possession should be defined, continuous and unequivocal. Mere isolated acts of trespass, without visible limit, and merely lumbering on the wilderness land of the Crown, without clearly detined bounds, are not sufficient. Smith v. Morrow, 1 Piuj. 200. 3 — E\tt>lldill^: boiindarirw by 4;ro\vii aft<'i' ;;i'aiit. The Crown may by a subsequent grant extend the boundaries of former grant beyond the distance mentioned therein, so far as relates to the rights of the parties claiming under the respective grants, inter ac, though the Crown may not be estopped thereby as against the grantee in the first grant. Aiton v. Dcmill, 1 Pug. 164. <'KO\VI\ TIMBEU. 1— >lieiy.iii'o or iiiiib<>r— Place— Oiiii<^ probaiHli. Certain sticks of white pine timber having been seized by the proper otficers of the Crown, as forfeited under the Acts of Parliament 8 Geo. I, cap. 12, and 2 Geo. II. cap. 35 — Held, That upon the prosecution of such seizure, the onus hrohandi as to the place where the sticks were cut being private, and not Crown property lies upon the claim- ant. Ri'iurancc iu reference to. See Insurance 21. Scowagf-Loadinir ship. S't' Contract. 27 i; I 426 CUSTOM DUTIES. Cioods laden on board ship deck according to cus- tom of particular trade — Owner Is entitled to contribution in general average Tor a loss hy jettison. See Shipping Law 10. Pond keeper— Lien on timber. Sec Lien 7. Loss or logs by storm— Liability. See Pond Keeper. C STOM DITTIES. 1- British North America Act— Foreign goods— Onus probandi. \ Certain liquors manufactured in Ontario, prior to July, 1867, warehoused for exportation, and having paid no ex- cise duty, were exported to Portland, U. S., where they were landed and immediately exported to St. John, N.B., where they arrived after the British North America Act came in force, being under the control of the customs au- thorities during the whole period of transit until they left Portland. He\d, That by passing through tlie United States they did not become foreign goods, and were enti- tled to be admitted free of duty under the I'ilst soctiouof the British North AmericaAct. That coming from a foreign country they were prima facte foreign goods, and the bur- den of proving that they were not so, to the reasonable satisfaction of the Custom House authorities, was on the importer. Kinneav and anotltcr v. liohiiison, 1 Han. 5oi). !2—LuiHber- Defence in action for penalty. Where the proper steps have not been taken to obtain exemption ol the duty imposed by the Act of Assembly" Vic. cap. IH, on lumber shipped for exportation after the Ist May, 1844, it cannot be set up as a defence to an ac- tion for tile penalty imposed on shippers who omit to give the requisite bond for such duty, that the lumber would have been free from duty had the proper steps been taken to obtain (exemption. Watmn v. Marks, 2 Kar 091. .SVr \\ I I' 11 E III. Pi n- D, "i. Se n. E^ VJI. .Vl ' 'ni«„J toaial In iiii acti DAMAGES. 427 3-Forrcittire ot goods. An entry at the Custom House declared that the pack- ages contamed articles not subject to duty ; but some of them contained contraband goods. Held, That it was but one entry, and that being false as to some of the pack- ages, the goods were not duly entered, and the whole were forfeited under 1 Rev. Stat. cap. 27, sec. 10. Beg. v. SU bands of hams, 3 All. 387. COURTESY. Sue Tenant by Courtesy. DAiVI. See Mill Dam. Assumpsit. Covenant. Negligence. Damages. Waste. Action on the case. Ki'criioii of Dam in Stream Capable of Boiiig used as a lli{$li\vay— P(>i-MOii<>i I^ot Eiijiircd Have no Right to D<;>iti'oy Daiii-Injiinctioii to Restrain. Sec Water Course. DAillAOES. 1. VlilNCIPLES. EeCOVERY. n. Evidence. HI. Pleading. 'V. Default. V. Setting Aside Assessment. VI. Excessive. MI. HiSCELLANEOUH. II. PltlNClPLES — EeCOVEUY. ' ^'l*7'7*'>«'*^^«'**-Waste-DainageH Confined to "Uial iiiJuiy-Tenajit in 4'oninion-Fio|»oition. In an action on the case for waste by one tenant in com- 428 DAMAGES. mon iigainst his co-tenant, the damage must be confined to the actual injury done to the premises, and to such pro- tion thereof as the plaintiff's undivided share bears to the whole estate. Linton v. Wilton, 1 Kerr 223. 3--Erectioii or Dam— Ovcrflowiiii? Laud. A., the owner of land through which a river flows, is en- titled to recover damages in an action on the case from B., the owner of the land adjoining, situate lower down the stream, for erecting a mill-dam upon his own land, which caused the water to flow back upon A.'s land. Smith v. Scott, 1 Kerr 1. 3— Ohsti'uctiiig River— €oi'i'«'»i»poiic1iiig: A<1vaiitagcs. In an action for obstructing a river by erecting a mill- dam, it is not a proper question for the jury, whether the benefit derived by the public from the mill is sufficient to outweigh the inconveniences occasioned by the dam. Rowe V. Titus 1 All. 326. 4 — Sterling and Currency. In an action brought in this Province for the value of goods sold and delivered in England, the plain tiff is entitled to recover such a sum in currency as will be equivalent to the demand in Stirling money, according to the rate of ex- change at the time of trial. {See Currency and SterHng.) Campbell v. Wilson, Ber. 265. * Such allowance recoverable under Common Counts, without specific averment of contract in sterling money, or statement of relative value of money, this matter of evidence. Campbell v. Wilton, Ber. 265. 6— Trespass— Several Defendants. In trespass against several defendants, two of them left when forbidden by the plaintiff, and took no part in the subsequent acts of trespass ; the plaintiff's counsel elected to go against all the defendants for the trespass. Jii^^ That the damages were properly confined to such trespasses as were committed when all the defendants were upon tlie land. McMillan v. Fairley, Han. 325. DAMAGES. 429 7-Fuiliii'u oil Delivery— Fill! in i^Iurket Price. In an action for the wrongful detention of timber, the plaintiff is entitled to damages for a loss sustained by rea- son of a fall in the market, between time when the timber should have been delivered to him, and the time he received it. Godanl v. Frederkton Boom Co., 1 Han. 536. §-Dctcntion of Alcohol— IVIeasure ot Dainag^cs, In an action for wrongfully detaining a quantity of alcohol belonging to plaintiff from September, 1867, till May following, when it was delivered to plaintiff, short 408 gal- lons; the proper measure of damages is — interest on the value of the alcohol during its detention, the value of the 408 gallons short, with interest from September, 1867, and any depreciation in the value of the alcohol during its de- tention. Kinnedr v. Rolnnson, 2 Han. 73. 9-liiiiii-y t» Business— Ag:rceiiieiit to Assign Judg- iiioiits, etc. In an action for a breach of a contract to assign to the plaintiff certain judgments and mortgages upon his pro- perty, he cannot recover damages for injury done to his business and credit in consequence of the sale of his pro- perty under a decree in a suit for the foreclosure of the mortgage. Gilbert v. Campbell, 1 Han. 471. lO-Wiougfiil Taking of Goods— ITIeasure of Damages. Where the plaintiff has the immediate right to the possession of goods, the proper measure of damages in au action against the sheriff for wrongfully taking them is, the value of the goods at the time of the conversion, though they were taken under an execution against a person who liad performed labor upon them, and for which the plaintiff would be bound to account to such person. Rankin v. McUl, 1 Han. 495. n-Disabling from Performance— Deduction of ITIoney -Breach ot Agreement to Convey— Cross Action. In an action for breach of an agreement to convey property to the plaintiff on payment of a sum of money by 480 DAMAGES. instalments, and which agreement the defendant had dis- abled himself from performing before the last instalment was due ; the plaintiff not having paid the last instalment, cannot recover it as damages for breach of the agreement; being part of the same contract, the defendant is entitled to have the unpaid instalment deducted from the damages, and is not driven to bring a cross action for it. Gilbert v. Canqjbell, 2 Han. 55. 13— Escape — Fiiuil Pi'ocei«f>t — Debtor Returning to C'ii»ito«ne ProeeKisi— Sherriff not Arresting'. Sheriff' not liable for neglecting to arrest on mesne pro- cess, unless some damage sustained by his neglect. Cumin Beckwith, 3 All. 365. 14— Limit Bond— Rule or Damages— 12 xccution. Damages may be assessed by a jury, and the proper rule of damages where the bond has been taken from a person in custody under execution, is the amount of such execu- tion. {See Limit Bond.) McKenzie v. Marsh, 2 Kerr 629. 15 -:?Iaster anil Servant -Entire Contract. The defendant agreed to employ the plaintiff for three years at an annual salary, commencing on the Ist April, 1848, but dismissed him without sufficient cause before tlie end of the second year. Held, That the plaintiff had an immediate right of action for breach of the agreement, m DAMAGES. 431 which he was entitled to recover clamap:e8 for the loss sus- tained by the breach of the entire contract, and was not limited to the sum due at the time of his dismissal. Meade V. Dohcrty, 2 .1//. 195. 16— Tenant in Common— Sale of Goods. In case of sale of goods by one tenant, his co-tenant mny afSrm the contract and sue the former in assumpsit for his share; in such case the produce of sale would be the measure of damages. See Doyle v. Taylor, Ber. 201. lY -Replevin— Pica IVon Ccpit. The defendant in replevin is entitled to damages on a wnhct in his favor on the plea of non cepit if he gives such eviJi lice as would have supported an avowry under the furiuer law. See Pleading II. 28. l§-liitcrcst— Inslahiiciit— Act Silent as to. Interest not allowed on the instalment in assessment of damages. See Interest 2. 19-Illcgsil Exaction of Dnty— Interest not Recover- able on IVIoney Paid, as Damages. Sec Interest 1. 30 -Covenant to P.iy for Improvements— Appraised Amount— Interest Kecoveriible on. See Landlord and Tenant VI. 2. 31-\iiisance— 0%vner of House not in Actual Occupa- tion. Theownerof a house of which he is not in the actual occupation, may recover from a person who has placed an offensive nuisance on adjoining premises, damages for the iajury sustained in not being able to let the house ad- vantageously in consequence of the nuisance. An owner 18 liable if he let a building which required particular care to prevent the occupation from being a nuisance, and the nuisance occurs for want of such care on the part of the tenant. Smith v. Humbert, 2 Kerr 602. 432 DAMAGES. !iil— Trover lur Hill ol Uxcliuiigo— rVuii-riillilnioiii of AKrccniciit. An action by the payee against the drawer of a bill of exchange was discontinued on the terms of the acceptor placing ^ihe amount of the bill to the payee's credit with a third person; and on the acceptor's representation that this had been done, the bill was given up to him. Held, in an action of trover for the bill against the acceptor— (the amount not having been pliced to the payee's credit)— That it might be presumed, un 1 'r the circumstances, that the payee had given notice of dishonour to the drawer, and that the plaintiff was entitled us damages to the value of the bill at the time of the conv u'sion, which, pr'una facie, was the amount of the bill. McJhnld v. Everitt, 3 Kerr 569. 33— Revocation of Arbitration Bond— Award. Where arbitrators, after a revocation, make an award which is otherwise unimpeached, the amount awarded is a proper measure of damages in an action on the arbitra- tion bond. Hatheway v. Clif, 2 All. 267. 34— Iflcsiie Profits— Costs. As a general rule, the plaintiff, after judgment against casual ejector, is entitled to recover the costs thereof as part of the damages in an action for mesne profits. [See II. 7.) Doe V. Dobson, 2 All. 446. 35— Counsel Fees. The plaintiff in replevin cannot recover as part of Ms damages, an amount paid to counsel on the execution of a writ de prupnetate probanda issued on a claim to the pro- perty put in by the defendant. Davis v. Cnsh'mg, 5 All. 3?3, Neither can he recover a sum paid for boomage while the timber was in charge of a Boom Company where it was placed for survey and safe keeping. Ibid. •26 Substantial damages may be recovered in replevin, though no special damage is alleged in the de- claration. (Per N. Parker, J., special damage should be alleged.) Firth v. Fitzgerald, Hil. 2\, 1866. DAM/VGES. 488 •(7— Tort— Actiinl DnninKC -Jury not Limited to. In actions of tort, the jury are not limited to the actual damage sustained by the plaintiff; therefore, where the actual damage was only $2, and the jury gave a verdict for $10, it was held not excessive. Roue v. Bdym, 1 Jlaa. 109. 'ii— Bill ol Excliaiigo— Dainaijfcs. Scmble, That the acceptor of a protested hill of exchange drawn in this Province, and accepted payable in England, is not liable to 10 per cent, damages under 1 Rev. Stat, cap. 116, in an action brought here. Morrison v. Spurr, All 288. >i9-Veii(lor— Sum Ag:i'cc<1 to bo Paitl for Land by Vendee. In an action by a vendor, for breach of an agreement to purchase land, the plaintiff cannot recover as part of hia damages the siini whi^h the defend int had agreed to pay for the land. Par/slei/ v. GilU'spie, 1 Pag. 195. 30-SiibKeqiiciit iVcg^icct— Daiiiaj;e to Land. A stream diverted into a new channel by the Commis- sioners of the European and North American Railway, under 19 Vic. cap. 17, became obstructed in consequence of the new channel filling up and overflowing plaintiff's land, lldil, Ist. That the Commissioners were bound to keep the channel open, and were liable to an action for the damage to tlie plaintiff's land. 2nd. That the fact of the plaintiff having been paid by the Commissioners, land damages for the dversi A th-3 stream, was no bar to his lecoverinjz <" "^ for their subsequent neglect to keep tliechaL a. McLei y. Commissioners of E. and N. ■1. iiai/' I Han 574. 31-E\i>iiipliiiy D linages— IViiful Act — l¥ron|;fni In tent. In an action on the case for pulling down a house, and thereby preventing a Sheriff from executing a writ of resti- tution awarded under 1 Rev. Stat. cap. 126, the jury may give exemplary damages if the defer, ant has acted wil- 434 DAMAGES. fully, and with a determination to prevent the process of the law from being executed. See EmhUn v. Mijcrs, G //. lO N. 54. {Allenach v. Desbrisay, East. T. 1865. 3*2— Special Daniiigrc— Necessity or Statement in Dc> claration. In replevin for iron, the plaintiff cannot recover for loss sustained by not being able to get the iron at a certain time, for the purpose of manufacturing it, unless such special damage is alleged in the declaration, DomvUle v. Keevan, East. T. 1871. 33 — Carrier — lioss of bagg^ag^e. The plaintiff, being a paseonger on the defendant's rail- way, gave his baggage in charge of their servants. The baggage having been lost, the plaintiff sued for the value of the articles, and damage sustained in consequence of such loss, both in expense incurred thereby and loss of time. Held, That the damage must be confined to reasonable ex- penses of searching for the l)aggage, such as telegraphing, cab hire in going to the defendant's office, &c. Mormon V. E. cO N. A. Ry. Co., 2 Purj. 295. Action against: carrier Tor loss of j^oods— Daiiiag:c con* fined to proof of valne of goods actually proved to have been contained in the case of guodainages wiiich might have been rerovorod in P'"'"' vious action— Remoteness of damages. See Infra III. 2. SfS — Slander— Damages natural consequeiic- Allf gation. To maintain an action of slander of title, the words DAMAGES. 435 must be followed as a natural and legal consequence by a pecuniary damage to the plaintiff, which must be specially allef^ed and proved ; there must also be an express allega- tion of somo particular damag" riionlting to plaintiff from such slander. Gordon v. McOibhon, 3 Pug. 49. 36 -Safe keeping of property Replevin. Sheriff's expenses- Expenses paid to the Sheriff iu connection with the safe keeping of property replevied, are recoverable as d .m- ages. McGoivan v. Balls, 2 Png. 90. Two taiiings of property. In replevin, where the plaintiff complains only of the last taking, he cannot recover as he might in trespass, for damages consequent on a first taking, even when the first TOs illegal, or the defendant's subsequent conduct was such as would make him a trespasser ab initio. Ibid. 3?-BiTacii of agreenient— Ex!ra costs of iiands iind vkilled labour. In an action brought by plaintiff against defendant for breach of agreement, not to go into business for a certain timp, by reason of which breach, plaintiff claimed he had been compelled to pay a higher rate of wages, and p.lso that a number of his workmen had gone to the defendant, it was /Ml, That the plaintiff was entitled to recover rea- sonable damages for extra cose of hands and loss by skilled labour leaving plaintiff and going to defendant, and that $4(j9\vere not excessive damages. Whittakcr v. 'Velsk, 2 H 436. 'dt^-lllogal distress— Selling goop:ai proof of debt. In assessing damages under the Act after j lulgment by default, the plaintiff' must establish the amount of bis debt or damages by legal proof. Where the only evidence of the debt was an account shewing several sums of money due from the defendant to the plaintiff on various triinsaetious with an affidavit of the plaintiff that the " account was just and true," it was held insufficient, and tlie julgiueut was set aside. Mitchelly. Lawther, 1 Pu,(). 71). DAMAGES. 439 III. Pleading. l-§tatiitc of limitations— Limiting recovery. In an action on the case for overflowing plaintiff's land by a dam, erected more than six years before bringing the action— 7/('/f/, That the effect of the plea of the Statute of Limitations was not to bar the action, but to limit the re- covery of damages to six years. Conncrs v. McLaggan, 2 Kerr 446. 'J-D<'t<'iition of Inmber— Subsequent replevy toy piain- tifr-Damag;es too remote. In an action for wrongfully detaining the plaintiffs tim- ber, in which the declaration stated that, by reason of the detention, the plaintiff was prevented from mniiufacturing tbe himber, and lost the sale of it, and his siw-mill was kept idle ; it is no answer to the plaintiff's cluim for dam- ages that after the alleged detention the defendants had placed the lumber in the hands of T., from whom the plaintiff replevied it ; the damages claimed in this action being anterior to the time when the lumber was placed in T.'s hands. But the plaintiff is not entitled to damages for any depreciation in the value of the lumber subsequent to the delivery to T., as such damages might have been re- covered in the action against him ; nor to damages for the loss of the use of the mill, they being too remote and not a neiussary consequence of the detention of the lumber. Tliat P. having put in a claim of property when the lumber was replevied from J., and that claim having been found i^gainst him on a writ de. pvo)). proh., and afterwards on a pleaof property in tbe action of replevin, could not set up Property in tho lunil,er in this action. Godurd v. Fval. ^^""»i Co., G All. 448. IV. Default. ^(( Practice V. VI. \\ lieredamagcs had been assessed on an account by a Judge 440 DAMAGES. at Chambers, but the affidavit on which it was made did not support all the items of the account, the Court reduced the damages to the amount warranted by the affidavit. Scoullm V. Webb, 1 Kerr 520. See Judgment by Default. — Offer to suffer judgment. V. Setting Aside Assessment O'^ Damages. -It is no ground for setting aside the assessment on a writ of inquiry executed at the Assizes, that the Sheriff has not returned any panel on the writ, and the damages have been assessed by the jury summoned to try the issues at the Assizes. Wkeeeler v. Goss, 1 Kerr 580. 2 Where, on a writ of inquiry before a Sheriff's jury to assess damages for the wrongful detention of liquor from September, 1867, till May following, the plaintiff gave evidence of transactions respecting the liquor prior to September, and also the expense of warehousing, insurauce, and legal expenses, and no rule was laid down by the Sheriff for the guidance of the jury as to the measure of damages, the Court set aside the assessment, being unable to ascertain by the evidence how the jury arrived at the amount. Kinnear v. Robinson 2 Han. 73, VI. Excessive. See Supra I. 27. New Trial II. 34, III. 13, 14, 16, 17, 18. Malicious Arrest, etc. 7. Action of Tort. In actions of tort, the mere fact of the damages being high, and more than the Court would have given, is not a sutiicient ground for disturbing the verdict. Brewiwj v. Berry man, 2 Pag. 515. VII. Miscellaneous. Oood and Bad Counts— Evidence on Trial Api>licabl<' to Oood Counts, no Inference that Daiuagcis u;er|: Given on Bad Counts. See Amendment III. 6. DAMAGES. 441 Assiiiiipsit— Breach of Agreement— Nots-Siispciisiou of Action— Litiiiiflsitcd Damage. Sec Assumpsit 1. 1. Daiiisi;i;:e!ii too Remote. See Convenant 10. Bi'oacli of Covenant, an produced. Sec Ec parte Hehert, 3 All. 108. See Highways 20. liny not confined to value of land merely. Hee Highways 26. Maiidaiiiiis, requiring apiiraisers to a-sisess damages. .S'c'(; Mandamus 6. I'livaK' i*oal>ortioiiiiieut of damages -Trespass on two €lis- tiiict lots of laml. ^ee Trespass IV. 6. >«iiiiiial damages- question fairly left to jury. &v New Trial III. 18 a. >nti> payalHo in specific articles. ^hme Whether plaintiff can declare for special dam- is^t foniot (k'livering articles. S,'e P.ills and Notes I. 13. ''<|iiid damages-Claim for, provable nnder Bai»kni|>tcy. '^('t Bankruptcy. 442 DAMAGES. Writ of liijiii') AmmowmIiik diiiiiaKCM on Mocoiid mii li«'l«l r<>K:iil:ii- wjuei'i' jury gavvt no verdict, nnd uero «li!>»iiii*>*><>d. S<«ni4>nt by .liiry— Limit nond. Sec Venire — Assessment — Practice — Judgment by De- fault — Contract — Replevin. lnt«'r4'Ht— l'niiqiiidiit<'d «l»iiiii{(('»— .liidKinviit dt'lnycd In an action on the case for unliquidated damages, tlic jury included interest in the verdict. Ifdd, on an appli- cation for allowance of interest from time of verdict to judgment, That interest was improperly included, and the application was refused. Ihirjx'i' v. Carrill, 8 Pug. 235. U4>l>l4'viii— Dsini:i$s«>^ i'4>4>4>V4>ralii4> in H4>tion. Sei' Replevin. Jury n4»t Ii4)iin4l to |;:iv4> 4tiiniiii;4><>> nii4i4'r I Krv. $$tat. 4'SI|». 1*26, MM'. 10. Sec Replevin 25. Ilr4^3irli of 4>4>ntra4>t tor d4'iiv4>ry of Ioiks— ITIoiiMii'eof daina^^c>!^. Scr Contract 20. IJVs'f v. llutledffe. Trav4>r«!>in;f aii4>;;aiion<» of spo4>iai 4ianiag:4>->Vlicii ranuot l>4> 4ion4'. Sci' Bond C. M'hciicr v. Stctcarf. Det4'n4lant 4>iainiin{: t4> r4'4iuc4> 4laniagcs by rlainifoi ;(4>ii4'rai averag:c. See Shipping Law 17. Burpee v. Canill. Redu4ing: verdict— Party lia!!> noriglit to tix dauiages iiiiUKeit; but !sliouid apply to Court to ascertain amount. See Practice VI. 52. Steeves v. Wilson. I niiiurancr— Partial io»s— l«'ant of evidence as to loss See Insurance. IW^od v. Slyviest. DEBT. 44» Intrusion i^hKerc, Whothor damages can be recovered in an infor- mation for intrusion unless they are alleged in the infor- mation. U('!i. V. Taiilor, 5 All. 242. !Nrliool leaclHT— DiwiiiiwMitl of ir tfiiilty of iiiiMroii«liiclf but not l4'Kiilly illMiiiiKMc«l by IIm> Ii'iimIcc^m. Scmhk, That he could only recover nominal daraagiis. ,Sm i'linnovw Wujiyvin, 5 All. 185. AVI.cii n<'4-4'*«Miir.v to liUxtv (laiiiiiK:*' %vitli iiailiciilarity -EvideiM'c I'oiiliiictl to Mtatliv«'i' (CooflK — PriiK'ipal and a^cnt — Adoption of uris of a^i'iit — Liability of priuci- l»al for Jill 4»f |xoo«l*t or«l4;i'<>«l. N'V Principal and Agent 20. Liici) v. Donavan. (hiuK'r party— D4'iay in i4>a«lin;; V4^!sm4^I. Scr Shipping Law 18. Schojidd v. Gibson. DEBT. l-A<'iioii~^lH>iifi. A tion of dol)t will not lie by a sheriff on a limit bond, ^vl]L'U lie luul received the prisoner into close custody after taking the bond. See Campbell v. Jlenan Per. 73. Action of debt against a sheriff for an escape cannot be maintained in this Province under the Statute I llich. 11. tap. 12, which is not applicable to this Proviuci;. IVihon V. ■]"//«, 1 .ULG5B. '^-Li<;,'iU)~Ti>rininatioii 4>f trust— A4;tioii by ieg[atcc'. ^'t' Action at Law IX. 16. A legatee may maintain an action of debt against an txtcutor for a Certain legacy given by his testator. Ibid. *-Be«jiie!,t-D4ift'nce— Property uiii4l. A bequest by a debtor to his creditor of a legacy to the amount of the debt, payable out of the proceeds of certain pi'4'««y which remains unsold, is no defence to an action >y tilt creditor for his debt. See Bishop v. llobinson, 1 444 DEDICATION. DEBTOR. See Insolvent Debtor. Dischni'KC ol— Al »iiiit of <>\cc>iifor — Fci'noii^, hone ficinlly iiit(>r<>ii«ltiiit l»> oii«> ol ••iovoial plaiiiiilN, See Discharge. By roiiKciii of pltaiiiliri- K4>iii<>(iy on iii(l;fiii<>iit See Discharge. Refusal to iliscliar^e— Equitable isiati!i>fa<-iioii, See Action at Law IX. 1. D^t'K LOAD. I.OSS l»y jettison— C'oHtiibutioii— JLJa1>iiity oliiiiiMcrol ship for loss. /See,Shipping Law. DECEIT. See AVarranty. DEC EARATIO]\. Sec Pleading. Practice. DECREE. See Supreme Court in Equity. DEDK'ATIOIV. 1— Of liijij^liway— Pi'esiiiiiptioii. Dedication of a road to the public may be iiresiiiiirJ from long user and the expenditure of statute labour oii the road, and a party may be convicted under the Aeti Wm. IV. cap. 2, sec. IG, for encroaching on such aroaii^i-' well as upon highways duly laid out under the Act. w,'. V. Buchanan, 3 Kerr 674. 2 A public highway may be established in tl"' | country by dedication and user. See Highways 16. By Ci'OAvn— Prcsuin|»ti%'e evideiiee See Highways 30. I. 11 III IV. l-Re^isi A deec Geo. III. c time of th incumbran Brhhifs V. 'iioii, A deed "^''^^l not enui enable him actual adveil iiiim subsl "*'fiie plainly ^f ''ei'al year? Trin. T. m '•oil. dii A deed, J '' " remisel ^fii's and taindeseribei %dandre ^'^sagoodcl ^^^^ section ^^^'aniJe oj Tlie Statu DEED. 445 DEED. I. Deed. II. Voluntary Conveyance. III. Trust Deed. IV. Composition Deed. V. Miscellaneous. I. Deed. l-Registry— Kclution. A deed, when registered under the Act of Assembly 26 Geo. III. cap. 3, conveys the estate by relation from the time of the delivery of the deed, when there is no mesne incumbrance which has obtained a priority. Doe dem. Bmhm v. Quint, East. T., 1828. *i-Advei'sc po!>>scssioii— Regiisttry not giving posses- sion. A deed rcgistored under the Act 26 Geo. III. cap. 3, will not enure to give possession to the grantee, so as to enable liiin to maintain trespass against a person in the actual adverse possession of the land, and who took pos- session subsequent to the registry of the deed and the entry of the plaiutift' under it, and continued such possession for Several years before the alleged trespass. Dunham v. King^ Trin. T. 1831. 3-Woids " i'enii<>t(>, I'doa^o stnd quit claim"— Execu- tion, arknowlcdgnient and registry— Good deed. A deed, whereby the grantor, for valuable consideration, did •' remise, release and quit claim" to the grantee, his heirs and assigns, all his right, title and interest in cer- tain described lands, having been duly executed, acknow- ledged and registered, pursuant to the Act 26 Geo. III. cap. 'i'li a good conveyance of land, within the meaning of the lOth section of the Act. Doe dem. Wilt v. Jafdine, Bert. m. *-Siatute of Uses and Enrolments in force. The Statute of Uses, 27 Hen. VIII. cap. 10, and the 446 DEED. Statute of Enrolments, 27 Hen. VIII. cap. 16, extend to, and are in force in this Province ; therefore, a deed of bar- gain and sale, not enrolled according to the provisions of the latter Statute, nor registered according to the Provin- cial Act 20 Geo. III. cap. 3, does not pass any estate to the bargainee. J^oe dcm. ILinington v. McFaddeii, Beit, 153 A— Woi'dM, privileges and appiirtciiaiiceiii, etc.— Kif;ht to use stream. A deed by which a grantor conveys a certain piece of land, " together with the saw-mill thereon, with all and singular the privileges and appurtenances belonging there- to ; together with the mill-pond, mill-dam, and any other privilege connected with, or belonging to the said prem- ises," does not convey a right to use a stream dowing through the grantor's land, for the purpose of taking logs to and from the mill, though the grantor had used the stream for that purpose previous to the deed. LV/- /s v. Peck, Bert. 318. 6— Cirantor disseise«l— JVo et«tate passing. If, at the time of the execution of a conveyance of land, the grantor is actually disseised, no estate passes to the grantee. Doe dem. Thomsoii v. Barnes, Bert. 420. T— Deed destroyed— dvidenee—FeoflTnient. Where the only evidence of the contents of a deed des- troyed many years ago, and under which the plaiutiff claim- ed title, was that of witnesses who had read it, and heard it read ; and who stated that it was a deed of the land in dispute, from A. P., the grantee, to his daughter, R. E., (one of the lessors of the plaintiff,) of the land where she lived, either sixty or eighty rods; that the names of A. P. and his wife were signed to it ; that it bore date some time in the last century, and was to R. E., her heirs and assigns forever. Held, That sufficient did not appear to enable the Judge to direct the jury that it was a deed of feoffment, or to determine its legal operation. ^^'"' ''''"'• Edgett v. StUes, 1 Kerr 338. DEED. 447 §-Ex*cutloM— Proof of. The execution of a deed of conveyance is not proved by the magistrate's certificate of acknovvledgnaent indorsed, without the certificate of registry. JopUn v. .Johmon, 2 9-ldeiitity of lot. Where the description in a de. d designated the lot by number, and referred to an inventory, which was not pro- duced— //cW, That there being suflicient evidence from the other part of the description of the identity of the lot to go to the jury, the deed was suiiicient. McEachern v. F>'i- (imm, 3 Kerr 242. lO-^o iii(>iiioi'niiiii. Where a certified copy of a deed tendered in evidence under the Act 7 \Vm. IV. cap. 15, contained no memoran- dum by the Justice of the acknowledgment of the due exe- cution of the deed, according to the Act 26 Geo. III. cap. 3. JJiid, That the deed was not duly registered. Di^e dm. Ljimis v. Slavin, 3 Kerr 258. U-V»liiabl(; coii!!«i«lcratioii— Inequality of value. hi order to constitute a valuable consideration to sup- port a conveyance, it is not necessary that the money paid should be of equal value with the property conveyed, provided the transaction is bona Jidc. Paysoit v. Oooil, 3 K(n 272. I'i-Afknowledgineiit— Proof of pei'§oii takiii;;:, beiiii; a Justice of the Peace. ^\here the memorandum of acknowledgment, endorsed on a registered deed, was subscribed, " Josephus Moore, J. Peace," but did not state in the body of it, that he was a ■justice of the Peace for the county ; he was allowed to be called as a witness to prove that he was so. Robinson v. "'K3A'ot301. l3-Ackiiowie(lg:einnt before Deputy .llayoi*. A deed acknowledged before a Deputy Mayor of a wrough in Great Britain, with the common seal of the wrough aifixed, is a sufficient acknowledgment under the '^"i'iii Geo. III. cap. 20. ulair v. Armour, 3 Kerr 341. 448 DEED. 14— ^iib:ith of Inte2N— AckiioAvledgincnt in Oreat Rriti^in— Seal of Cor- poration. The acknowledgment of a deed in Great Britain was in the following form : " Be it remembered that on, etc., before me, T. G., "Mivor i the town of Southampton, in England, personally appeared, etc. Given under my hand and seal the day and year first above written," and signed by the Mayor, with a seal il' d having the words " Southampton Villa " inscribed around what appeared to be the City arms. Held, That it imported to be tho cor- porate seal of Southampton, «,nd not the private seal of the Mayor, snd therefore the ;; iknowledgment was suffi- cient under the J. Rev. Stat. cap. 112. De Veher v. Britain, 4 ,4//. 330. '29- Description— Whole lot pa<^!iiin;ff. A deed of conveyance described the land, as a piece of land, " being lot nuiiiher seven ' in the division of a certain propeity, and running from Crooked Creek, etc. Hehl, That the whole of lot No. 7 passed by the deed, though tbf line of the lot did not run from Crooked Creek. Stiles V. Khr,>r, 5 All. 285. :)0-D(>)«ii'iption in part inaccnrate— Effect. When part of the description is inaccurate, effect is to be given to the description first in order, :»ud to the name ; and a cumulative description, if it fails in point of accu- racy, will be rejected. Ihid. ll-BjuTlster's Deed— Sale -Immediate execntion. The Equity Act (17 Vic. cap. 18), directs that on sales by a Barrister, he shall execute a conveyance of the land "'mmnliatfli/ upon such sale." Held, That this meant without any improper delay ; and that three weeks after tliesale was not an unreasoKrlile time. Doe deni. Jardine ^•^'"M'-.V, 5/lW. 561. ••' 452 DEED. 32— Coiisidccation— Becouiiii};: bail. Becoming bail for the grantor, is a sufficiently valuable consideration to support a deed against a prior unregis- tered convej'ance. Crockford v. Equitable Insurance Co., 5 All. 651. 33— E<>iCi'ow— Delivery of deed. To make the delivery of a deed operate as an escrow, it must be delivered to a stranger, — not to the grantee. Haggarty v. O'Learif, 6 All. 360. 34— IVo declaration of use — Consideration — ivioney blank. Under the Eegistry Act (1 Rev. Stat. cap. 112) a deed from A. to B., expressed to be " for and in consideration *• of the sum of lawful money of the Province," habendum to B., his heirs an ' assigns, but without any declaration of the use, is a sufficient con' bvance of the land to B. Semble, That it sufficiently appeared that the considera- tion of the deed was money, and the amount of considera- tion being unimportant, that the deed might operate either ■^s a deed of bargain and sale or as a feoffment. Wortmon \ Ayles, 1 Han. 63. ".i-t -lainatic. The deed of a lunatic is not absolutely void, but void- aide, and can only be avoided by the grantor or his repie- S3nti;tives. Doe don. Hickman v. King, 1 Flan. 330. 36— Ds^te— SiierilfN deed— Affidavit dkfferinir* The date mentioned in a deed is not conclusive, and the actual date of the execution may be shewn. Where a sheriff's bore date in 1841, and the affidavit of the due advertising and sale was made in 1843 — Held, That evi- dence was admissible to prove that the deed was executed at the time the affidavit was sworn. Doe dein Connell, v. Diekerson, 1 Hau. 456. 37— SheriflN deed— Date of deed and affidavH-E**"' eutintf at same time. The affidavit of the sheriff under the Act 4 Wm. IV, cap. DEED. 453 22, of the duly signing and selling land taken in execution, must be made at the same time that the sheriff's deed is executed, and in the absence of evidence to the contrary, the deed must be presumed to have been executed on the (lay it bears date. Such an affidavit, purporting to have been sworn on the 2nd February, when the deed bore date on the 2nd January previous, is insufficient, there being no other proof of the time of the execution of the deed. Doc (h'ltt. BiiHtin V. Donclly, 3 Kerr 60. 3§— Fi'iiiKi— Want or coKMdi'i-iitioii— By wlioiii iiiiiy Ix' «•('! lip. Fraud or want of consideration for a deed, can only be setup by the grantor or those claiming under him. Hick- man V. Xorth Brii'mli Insurance Compantj, 2 Hdn. 235. ;]9— Dose Hptioii—Kfjert ion of part— 4'oii>tti'ii<-lioti. D. conveyed to his daughter a piece of land in Saint John, described as " a lot on the corner of St. James and Sydney Streets, now in the occupation of P. AI. and wife, (the defendants), subject to any char^'e or mortgage now afiainst the same." At the time of making this convey- ance, D., the grantor, owned parts of two lots, Nos. 1085 and 1080, adjoining uach other, and purchased at different times, No. 1080 was situated on the corner of St. James and Sydney Streets, and was occupied l)y the grantor's (laughter and her husband,' P. M. ; and was also subject to a moi't^ag: given by the grantor. No. 1085 was situated altogether on St. James Street, and was occupied by tenants of J)., who received the rents — his daughter only liaving the use of a wood-shed and out-house tlu-roon, in ••ommon with the other tenants. Held, per liitchie, C. J., Alkn and Wetmore, J. J., That no part of the descri[)tion in the deed could be rejected ; that the lot No. 108(5 exactly titttd and corres[)onded with the descripticni in the deed, and tlioixd'ore that lot only passed by the deed. Per Weldon and Fisher, J. ,J,, That the words of the deed, coupled ^ith the surrounding circumstances, shewed an intention to convey both lots to the defendant. Doc :Unn Ihniv/hac v..VcGut— C'fi'tifirate triii««ic Evideiico. of Rejfisli'y— Ex- A certified copy of deed recorded in 1835, was objected to on the ground that the acknowledgment, being taken before the Mayor of St. John, was insufficient, but the Court held that the i\[ayor, being viiiutc officii aJudge of the Common Pleas, had power to take acknowledgments ; and also that it was not necessary it should appear to have been taken within the cii>- or County of St. John. Held also, iu the same case, that the certificate of the Registrar was suiicient. even though he did not certify that he was the Regis-trar of the County in which the land lay, or that the flfi i was registered in such County, and that it could be shown by extrinsic evidence that he was the Registrar of tilt- County. JhH'dcm. McKmzif v. MoJier, 2 P«//. 355. >=i-A('kiioul<>iit by married Woman. A cei'titicat' of an acknowledgment by a married wo- man, stating that she "acknowledged that she signed, Sealed and delivered the deed for the purposes therein men- tioned; and being examined separate and apart from her liusband, ;;:aid that she did the same of her own free will aui' accord," is not sufficient to satisfy the requirements of tlKAct. 27 Cxeo. III., cap. 9. Allison \. Smith, 1 J^. d- B. 456 DEED. 199. (See Consol. Statutes cap. 74, sec. 9. — Sufficient to state that she was examined apart from her husband, and that she acknowledged she executed the conveyance freely.) 44— Deed l>y Lunatic — liitoxicntion— Avoidance Deed. of In order to avoid a deed made by a Lunatic, or a person in a state of intoxication, two things must be established. 1st. His incapacity to contract. 2nd. His equitable right to be relieved ; and where the incapacity to contract, as the result of dissipation, was established, and inade(|iiacy of consideration shewn, the Court granted relief. Jones and Wife V. Calkin, et al 3 Piuh 356. 45 — 4ekiio\vled^:iiieut— l*ea«'<'— .'Vaiiie. Acknowledgment taken while the Act 26 Geo. III. cap. 3, was in force, is good, although the place where the same was taken is not stated. Where an acknowledgment was taken before a person who signed his name " H. G. Clopper, Eegr. " and it was proved that Henry George Clopper was Registrar of Deeds for the County of York, at the time the deed purported to have been acknowledged, that he always signed his name " H. G. Clopper, '" that he registered the deed, and that \\v was the oliicer by whom that duty Would properly be per- formed, the acknowledgment was held to be good. It was held no objection to a deed that the grantor was described as " A. B. Sharp,'" where the acknowledgment stated that Adam 13. Sharp acdaiowledged the execution- and it was proved that the land was purchased from Adam B Sharp, and that he signed the deed. Bri'/fjs v. McBn'h, 1 P. <(• B. 603. 40— l^iil>siii^ Wiliies)!. -I'lool befoie Keyrisliy. The Act 26 Geo. III. cap. 3, sec. 6, required the execu- tion of deeds to be registered, to be proved by the subseiil)- ing witness, who should upon oath prove the "signing, sealing and delivery there-of." IL:l^h<'iillN D<>ed. \ voluntary conveyance of huid (without fraud) is good anaiaat a subsequent creditor chiiming under a Sheriflf's difd, since the 1 Rev. Stat. caj). 113. Doe dem. Roup v. Tiviit'WHkii, 5 .1//. (>3(). lu 1852, A., without valuable consideration, conveyed larul to B. in trust to hold for the benefit of A.'s wife for litV, auii after his J.'ixth to be divided among his children. b. 1855. the lessor of the plaintiff obtained judgment jmainst A. under which the land conveyed to B. waa levied ou by the Sheriff, ami purchased by the lessor of the plaintiff in 1859. The defendant claimed under a lease troui B. in 1857. Held, That the conveyance to B. was go<"', aad that nothing passed by the Sheriff's deed. Ibid. Ill Trust Deed. I-Fraiid— Execution of Deed— Intention. lu trover foi: timber seized by the defendant, as Sheriff of ^aint .John, under a/i. t'n., issued against P. at the suit of S. k B., which timber was claimed by the plaintiffs, as trustees under a deed of assignment made by i'. to them, expressed to be for the general benefit of the creditors, and executed just before the signing of a judgment in 8. & B.'s suit, and the intent of whicli was to prevent his property being taken under the execution upon such judgment, the case went to the jury upon the question of fraud in the s^isignment, who found for the defendant. A new trial waa granted on payment of costs, it appearing that P. was insolveut at the time of the assignment, that an actual de- livery of the timber had been made to the plaintiffs before >M>iingthey?. ;b., and the evidence being insufficient in IMAGE EVALUATION TEST TARGET (MT-3) /. / :/. v.. 1.0 I.I 1.25 2.5 Z2 2.0 \A. Ill 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ,\ iV ^^ \\ %^^ ^ ;^> ' ^^ ^ ^ 460 DEED. the opinion of the Court to shew that the deed was not in- tended to be for the benefit of the creditors as expressed on the face of it. Hayicard v. White, 2 Keir 304. The question in cases of this sort is whether the trans- action is bona fide, and really what it purports to be— for the benefit of creditors — or a mere pretext or cover in order to protect the property for the benefit of the debtor. Ihkl. A condition in the truBt deed that each trustee shall only be answerable for his own neglect or default, is not unupual or ir or'^per. lUd. It is not Cbttcntial to the validity of a trust assignment for the benefit » reditors, that the creditors should be parties to the d^t' 1. Ihid. 9— Bona Fides—i^uestion for Jury— Interference ol Court— InsufHcient evidence— Fraudulent clause. Although the bona fides of a trust deed, whereby the debtor's property is all assigned to trustees for the benefit, in the firni, instance, of certain preferred creditors, and afterwards for the benefit of all the creditors generally, is a question for the jury, and has been so left to them by the Judge, yet the Court will set aside the verdict, and grant a new trial, where the evidence does not appear sufficient to warrant the inference of fraud which the jury have drawn. Burnham v. White, 2 Kerr 571. The question upon which the validity of the deed de- pends is whether the assignment was really intended to operate, as it purports to operate, for the benefit of cred- itors, or was merely colorable, and made to protect the property for the use of the debtor. Ibid. A clause in the deed of assignment, whereby the trus- tees agree to become bail for the assignors in case they are arrested, or their security for the gaol limits, and are to be indemnified out of the trust property, is not frauiiulent; «uch clause, though the terms are general, will be neces- sarily confined to arrests for debts existing at the time of the assignment. Neither is a clause, whereby the re- sponsibility of each trustee is confined to his own acts or defaults, unusual or improper. Ibid. DEED. 4b: S-Appointmeiit of Tinistees in ca«e of death or dis- charge—Vesting of Estate. The Mayor, etc., of Saint John convoyed real estate to five persons, their heirs and assigns, upon certain trusts ; and the deed declared that in case either of the trustees should die or be desirous of being discharged from, or be- come incapable to act in the trusts, it should be the duty of the other trustees for the time being, to call a general meeting of the creditors of the said mayor, etc., and that it should be lawful for a majority of the creditors present to nominate, substitute, and appoint any other person to be trustee in the place or in addition to the trustees thereby appomted, with the like powers to such new trustee to act and perform the trusts as fully as if he had been originally a trustee. Held, That the nomination of S. by the creditors as a trustee in the place of M., one of the five trustees Lamed in the deed, vested no estate in the land in S., but that the legal estate vested in M. by the deed remained in him until he parted with it by a legal conveyance. Wright V. Robertson, 3 Kerr 78. 1-TriiKiro and Creditor also— Execution by— Ini- poarhiiient for Fraud. Where parties to a deed of assignment, in trust for the payment of creditors generally, were described as trustees of the second and creditors of the third part, and it ap- peared in evidence that when the deed was executed one of the trustees was also a creditor of the assignor. Held, That such trustee, in the absence of evidence to the con- trary, must be considered to have executed the deed both as creditor and trustee. Held also. That such trust deed could not he impeached for fraud and misrepresentation by the plaintiff, who claimed through a party whose demand ^as released by the deed— the same not having been re pudiated by the parties to it. Hammond v. Barker, 3 Kerr 5-Tiiisi dred executed under Power of Attorney— Howt'i- of appointment to otiier, in case of re- fusal of one Trustee to act, or deceased. A. being in tinancial difficulty, executed a power of attor- 462 DEED. ney to G. M. to convey all hie estate to J. M. and J. B. in trust, to pay his creditors, and in case either of them should die or refuse to act, to such person or persons as G. M. should appoint. J. B. refused to act, and G. M. conveyed to J. M. and A. B. J. M. died, and suhsequently A. B. Bold a parcel of the land to G. M., and conveyed it by a deed purporting to be made between J. M. and A. B., trustees of the one part, and G. M. of the other part. Held, That the conveyance under the power of attorney was good ; that the estate vested in A. B., the surviving trustee, that the deed from him to G. M. was good ; and that G. M.'s title was complete. Doe ikm. Moffat v. Thompson H al 1 P, IV. Composition Deed. 1 — Fanners— A«»»«»iil of— Proof of Execution bytruMefs. One of three partners asBigned to trustees for payment of the partnership debts, property which had originally be- longed to the firm, the deed reciting that the other partners had conveyed to him. Held, 1st. That such asBignment would be valid if assented to by the other partners. 2Dd. That such assent appearing, the recital of the conveyance from them did not make its production necessary for the construction of the subsequent assignment. And 3rd. That proof of the execution of the deed by the trustees was not necessary to enable them to recover the property assigned. McMillan v. Ritchie, 2 .4//. 242. 9— Schedule— Omission or. A compotsition deed recited that the grantor was indebt- ed to certain persons in the sums set opposite their names in a schedule annexed. HeUi, That the omisBion of a schedule did not vitiate the deed. Thurgar v. Tmh, 2 All. 272. DEED. 468 V. MlSCKLIiAKE0U8. I-Exchniige of lands— Agreement in wrllinpc— P«*«- <«e<« of rrgiwtry. The best evidence of the registry of a deed is tlie Registry Book. Where a deed, by the memorandum en- dorsed, appeared to have been acknowledged on the 6tb June, but the certificate of registry was dated the 5th, the Registry Book was admitted in evidence to shew that the deed was registered on the 5th June, and that the mem- orandum of acknowledgment was then upon it. Doe denu SimpsdH V. Falls, 5 All. 540. 14— Proof of deed— Foreign Country. A deed executed in a foreign country, may be proved in this Province by the subscribing witness.. The provision of the Registry Act as to the proof of deeds executed in a foreign country is permissive. Croekford v. Equitable In- iurance Company, 5 All. H51. IS— Deed Poll— 1¥ant of mutualiiy. A. by deed poll agreed to make and haul all the timber he could find on B.'s permit, for which B. was to allow him whatever the timber sold for, after deducting B.i DEED. 467 Rtipply bill and expenses, and that all the timber got should be the property of B. Held, That there Avas no mutuality, and that B. acquired no property in the timber without a delivery. Coombs v. Hathewny, 3 Kerr 692. Livery of Meisin— SulBciency of. S>>>' Livery of Seisin. McLardy v. Flaherty, 3 Kerr 655. Evidence of— Allowed on trial— Deed not acknow ledged. See Evidence VIII. 12a. Breach—Covenant for quiet <*nJoyment. See Covenant 6. Warranty- Breach ol. See Supra 3. Gesner v. Cairns. Trnstee— Riglit to pass estate. A person having the legal estate in land may by eon- Teyance at law pass such estate, though it vras given him in truBt. See Doe v. Oilbert, 1 All. 520. Delivery to, or assent oi ^antec necessary. See Evidence XI. 34tion. See Trespass II. 28. Deeiieat4'. Ser Insolvent Act. Parlee v. Affii. Ins. Co. 8nl>iiitJi witness. A conveyance of land does' not require a siibscribiu witness. Docdcm. Sherlock v. Powers, 6 All. 232. niarlisnian. See Will. Adniinislralor's deed iiiidi-i' li<-eiise to sell— Piirrliaxcr'^ title iljeetiiK'nl - l^videiiee to cut down dci'd- adinissibility of. See Licence 12. Doe dem. Bviren v. Hobcrtson. Alter aeqiiireti pioperty. .SVc Bill of Sale. Dower— Release oi— \ot aflerlin^ after aeqiiiroillillc ot wife. See Dower. />')'' dem. Btirns v. MeGowaii. DA.IIAOE FI:ASA\T. Wlieii rattle may be taken— Piaee. A field driver appointed under the Act to impound cattle going at large contrary to the Sessions regulations can only take them while at large in the parish for which bo n DEATH. 469 appointed. The place of taking is a question for the Jus- tices' decision, and unless it is clearly against evidence the Superior Court will not interfere. SterliiKj v. Jonex, 2 All. 522. Replevin lor— JiiHticc of tli4> Foiii'c— .liirimdirlioii. See Justice of the Peace II. 11, 12. DEATH. I-Of liiisbaiid— Abntciiieiil ol action. Action brought by husband and wife to recover money had and received to the use of the wife, does not abate by the death of the husband. Ihuiinyton \. McMiitKimin, 4 AIL o99. 'J-!^iiiiiiiini'y action. On death of one of several defendantw, before interlocu- tory judgment, suggestion should be made on memoran- dum of judgment. See Crane v. GooiUiic, 4 All. 371. Ibvroiiding debtor. ^Vt' Absconding Debtor 12. 3-Or (lofoiidaut pciidininr motion lor new trial. Where defendant died after verdict, and pending the determination of a motion for a new trial, the Court re- frained from granting a new trial until the plaintiff had an opportunity of applying to have terms imposed. Key v. Thomson, 2 Ilan. 224. D'ath of iiiteMato— Letters of administration— Evi- rt«'il«!€ of. 'S'c Evidence IV. 1. Affidiivit endorsed on deed of administrator, not evidence of deatii of intestate. 'SVf Deed I. 24. •-Equity ~Rc-s\vearing: — Answer — Deatli of one of •several detcndants. Where one of the persons named as defendant in a suit m 470 PKFAMATION. had died before the hiuuuious issued, the pleadings were amended by strikiui^ out his name, and tt.e answer wag re-sworn. liyern v. llamtfini, 1 Ilnv. 281. ft— .titer trial nnd tiet'orc .liidgment. Where jilaintiff dies after trial and before judgment, tlie Court will make such orders regarding entry of judgnxnt or new trial as will i)revent failure of justice. McMUhm T. *S'. ir. lionw Co., 1 r. ,(■ Ji. 715. •— .Htiitute of liiiiitutioii««— lu*ian« person. Under the 1 Rev. Stat. cap. 141, sec. 11, (Consol. Stat. cap. 84,) an action may he commenced against the per- sonal representatives of an insane person within the like period after the deatli of the insane person, as is allowed for bringing the action in ordinary cases — death being a removal of the disability. Fairweather v. McMona(ik, 6 AU. 297. DEFAMATION. Actionable Words. pRiviLEOED Communication. Actionable Writinq. Averments. Pleadings — Proof. Mitigation of Damages. 1— Actionable words- Rebel. The term Rebel is not actionable unless it is used in a treasonable sense, which must appear on the record, other- wise judgment will be arrested. See Beardsley v. Dxhhlt, 1 Kerr 24«. •—Slander. In an action of slander, the declaration alleged that the plaintiff was a clerk or servant at the store of J. Cunard & Co., at R., and that the defendant intending to injure the plaintiff, etc., and to cause him to be reputed a f^ishonest person and unfit to be employed as a clerk or DEFAMATION. 471 servant, spoke the following words to the plaintiff, " you waa turned out of Cunard's atore at R. for robbery — ^you are a ,j d parcel of robbers." ffeld, That the words being lotionable in themselves, proof of the particular employ- ment of the plaintiff as alleged, was not necessary. Hett v. M^'lii'oth, 2 Kerr 301. t Not libellous to write of a man that his outward iipearance is more like an assassin than an honest man. .S. • Lau() V. Gilbert, 4 All. 445. I Priviloffed comoinuiratioN. The declaration in an action of slander stated that the defendant spoke of the plaintiff as a clerk of H., the fol- lowing words : " That miserable follow C., (the plaintiff,) lid just rol)bed H., he u.l, taken money from liira, and put \\u hand in tho ohest. 1 could see it all along. C. is a rnl her. You don't know him, — he deceived my poor boy, sn.l has robbed H. of seventy pounds, and I can prove it ;" meaning that the defendant intended to charge the plain- ti:^" with theft. The defendant was H.'s father-in-law, and uuil the words to H.'h attorney. Held, 1st. That as the defendant had no interest in H.'s business, the communi- cation was not privileged, though it was made coniidentially to the attorney alone. 2nd. That though tlie words might amount to a charge of embezzlement, they were not in- tended to impute larceny. Carvil v. McLfod, 4 All. 332. t A written paper charging the plaintiff' with hav- ing wrongfully taken the defendant's logs, sawing them up iud selling the lumber, is libellous, without any averment or proof that larceny was thereby imputed. Connick y. Wilson, i Km 496. The charge in question was contained in a letter written ';y the defendant to McK., an intimate friend of his, who ni a near relative to the plaintiff, but in no way interested or concerned in business with either party, with the avowed object of the defendant availing himself of McK.'s influence Mid good offices in his controversies with the plaintiff, and to warn the plaintiff and his mother against the couse- 472 DEFAMATION. quences of law suits, and the alleged interested motives of his attorney. McK. being absent from the country, the letter was opened by his agents and relatives, and became public. Held, That this waR not a privileged communica- tion. Ibid. 6— Actionable n^ritiiiir. A writing which tends to vilify and degrade a person, is actionable, although no crime be imputed. Connick v. Wil- son, 2 Kerr 617. 7— Prefatory averments. In a declaration for a libel prefatory averments are not necessary, where the charge is apparent on the face of the paper, without reference to extrinsic facts. The question after verdict is, whether enough appears on the record to sustain the action. Ibid. S— Professional misconduct— Charge. A written paper charging the plaintiff (an attorney) with being governed entirely by a craving after his own gains, without regard to the interest of his clients, and reckless of bringing them to ruin, is libellous ; and if the jury find a verdict for the defendant, the Court will grant a new trial if they think the verdict is wrong, though the Judge left the question of libel to the jury, without expressing any opinion upon the writing. The charge in question was contained in a letter written by the defendant to McK., a friend of his, but who had no interest in the business, with the object of obtaining McK.'s influence in settling certain law suits in which the defendant was engaged. Held, That this was not a privileged communication. Held also, That the de- fendant, intending the letter to be confidential, would not justify him in casting injurious imputations on the plain- tiff's character. Andrews v. Wilson, 3 Kerr 86. 9— Forsu^earing allegiance— Charge— Proof of ••laii- derous matter. Libel, charging the plaintiff, an Englishman, with hav- ing forsworn his allegiance to his country by enlisting in DEFAMATION. 473 the Aiiu'iici'ii army, anu afterwards deeerting therefrom. Plea of iustification. Held, That an Englishman who en- lists in the array of a foreign country, and takes an oath of allef^iance thereto, forswears his allegiance to his native country ; and that the iilaintiflf's admission that he had en- listed in the American army and deserted, might as against liim be taken to be true, and therefore was evidence to prove the justification. 7^//' v. Ilopfi, 4 All. 108. lO-Pn'jiiry- '■■■l>"tstert, 4 All. 359. 13— Avcrnr'Mit. In calling a woman a whore, it is sufticiLiit toavirin declaration that the defendant intended to impute nnchas- tity. Mdrt'uuhde and icife v. Murphy (tnd irife. Bar. 85. 14— Proof of liiiiiiendocs. In an action for slander for charging the plaintiff with perjur}', some of the counts stated in the induceraent that the words were spoken of and concerning the phiintilf, ami ■of and concerning a certain affidavit, etc., the dofeiidant justified, setting out the affidavit, and alleging certain statements therein contained to be wilfully false. The affidavit referred to two pa pern which were annexed, but there was no postive proof that they were annexed when the affidavit was sworn to by the plaintiff. Held, that there was sufficient prbna facie to let in the whole of the affidavit, and that the admission of part to be read without the papers annexed was not correct, and the innu- endoes not sufficiently proved. Milnev v. (rUhert/d Ken; 617. The verdict being for plaintiff — Qtuerc, Whether this was a sufficient ground for a new trial ; the statement alleged by the defendant to be false, and on which he founded his charge of perjury, being contained in that part of the affidavit which was read, and the defendant bein); obliged to make use of it to support his plea. /^'''• In other counts the words were, " He perjured himsel/ in an affidavit in C.'s suit," without any inducement stat- ing the words to have been spoken of and concerning the affidavit. Held, That it was not necessary for the plain- tiff to prove any affidavit, but that the onus was on tli<; DEFAMATION. 475 (le fendiint in support of his pleas of justification to prove that the phiintiff had sworn wilfully false in an atiidavit in C.'s suit. Ihi'l. |.) -Proof ot words. It is not necessary in slander to prove all the words as laid in tbs declaration, if the words proved do not qualify those alleged. The words alleged were, " you perjured Yourself in the suit between Thomas and me before Law- loi'." The words proved were, " you perjured yourself in the suii between i/our brother Thomas and me," etc. Held, No variance. Vyc v. Newman, Hil. T. 1866. l(»-MitiK:itioii of «lainajj|;e— Evidence. In an action of slander for charging the plaintiff with i^tealing, evidence of the general bad character of the plain- tiff is not admissible in evidence in mitigation of damages. W'llMm V. Smith, 3 Kerr 443. 17 Liiiiitatioiiv Evidciir*'. Other action for Maine otfence- To a plea of the statute of limitations in an action on the case for slander, the plaintiff replied, under one of the txoeptions in the Statute, that another action was brought in this (!ourt within due time for the said identical grie- vances, in which a verdict was given for the plaintiff, but the judgment afterwards arrested /))'o«6f patct perrecor- 'Im, and that the present action was commenced within one year ; the defendant rejoined nul tiel record. Held, That the replication was sufficiently proved by the prodi;c- tiou of a record in which the declaration contained substan- tially the same actionable words, although the venue was 'hffevent, and material omissions in the innuendoes were i'uppliedin the new action. Bearddey v. Dihlec, 2 Kerr, ^^here the same evidence would be applicable to both actions, the identity of the grievances is a question of fact for the jury, although the additional allegations may make ■«tther proof necessary in the new action. Ibid. - 1 1 47() DEFA^fATION. 18— Pri%il<'K4'«l romiiiiiiiioatioii— When iiinilp in di^. 4'liiii'K<' or duty— Oflicial |»«'I'moii -Proof. A ploii in an action for slancU'i- must show that the words coini)hii]ied of were s|)okeii by defendant in the discharge ol his duty. Therefore where the plea alleged that the defendant was appointed by the Governor-General Chief Inspector of the Post Ollice Department in Canada, with authority over all Post Office Inspectors and then- respective districts ; and in cases where there were reports of money letters being missing, or money abstracted from letters, it was and is the duty of defendant to investigatt^ and inquire into the same, and if he deemed it advisahk and necessary, to proceed in person to the district in which it was reported such money letters were missing or money.-; abstracted ; and he was also authorized to suspend or dismiss any person employed in the Department, if, in the course of such investigation, he deemed it to the interest of the Department to do so. That plaintifl' and one W. win clerks in the Post Office at S., within a district over whicli defendant, as Chief Inspector, had authority, W. being above plaintiff, and defendant being their superior officer, and it having been reported to deferidant that money had been abstracted from registered letters, and that letters containing money were missing from the S. Post Office, it became defendant's duty to investigate the same, which he did, and in course of the inquiry he deemed it advisable to suspend plaintiff, and that he communicated the same to him and the said W., and thereupon, in his capacity as such Chief Inspector, and in the course of his duty in siicli investigation, and in making said communication, and be- cause it was necessary and incumbent on him as such Chief Inspector to do so, and as an act of duty and not other- wise defendent spoke and published the said words. Hell A bad plea, inasmuch as by "The Post Office Act, 1867, the duty of inquiring into complaints of losses of valuable letters is confided to Post Office Inspectors to be stationeii at certain places in Ctinada. That the Act recognizes no such officer as Chief Inspector, and that defendant u>, therefore, not the officer whose duty it was to make siicb enquiry. Watcrhury v. l>circ, 2 P. ((• B. 6. dp:famation. 477 19 - miiindt;!' — Privilc^:(;wiiiK siiithority in «lor4>ii«laiit to iiink<> niqiiii')' niKl to inako coniiiiiiiiiciitioiiM —Civil Servic*' employe*'— Superior ollieer. A plea to a ewe, 3 I'lifi. 670. l§lHii«l<'i' of titl«>— ]%«>4-i'!>>wHi'y to sill<>{?<> sppciul ^weni'iii;;:— IVo jiii'i»<«li4'tion to t»k(> oath. See Justice cf Peace IV. 23. Gancry v. Faivcett, DEFEASABff'E. See Warrant of Attorney. General Eules 27. DEFE!VC'R. See Evidence YIII. Notice of. See Pleading III. DEFEKDINO WARRANTED TITLE. Recovery of costs. Sec ^Yarranty. DE INJURIA. I)e injuria may be a good application in an action of assumpsit, and is not confined to actions of tort. In an action by the endorsee against the maker of a promisory note, the defendant pleaded that the note ms discounted by the plaintiff on a usurious contract. Re- plication — lie injuria, held good. Bank of British Sorth America v. Fisher, 1 All. GOO. DELAY. See Bail 14, 15. Certiorari II. Specific Performance. DELIVEllY. 479 W" Objcctiiit; to Partition. See Partition. Fiilai'Ki"? ■'**l<^ iii!$i delay satis- fnrtoriiy accoiiinto«l for. Ex jnirte Glass, 2 All. S8. DELIVERY. i-.'>iHffl<'i<'iicy of— Direction to Jury. Where A., the owner of a quantity of timlier, being largely indebted to the plaintiifa, who were to be paid by means of such timljer, directed his agent B., to take posses- sion of and hold it for the plaintiffs, and B. accordingly took possession, and put his mark upon the timber, and communi- tute(i this direction of A. to the plaintiffs, who assented thereto, although it did not appear that any absoln ■ delivery of the timber, or the survey bills thereof, had been taken by thei)laintiffs, nor any credit therefor given in the plaintiffs' books. Held, That the Judge was right in directing the jury that such acts and directions amounted to a delivery, ami that such timber could not be afterwards taken in exe- cution by the defendant against A., the original owner. Croolshaxk v. White, 1 Kerr 367. 2- Coii<)triiction of Contract— Necessity of delivery. A. agreed in writing to cut 100 M. feet of logs on land of which he had the permit, and deliver them to the plaintiff in the following spring, the logs to be the property of •he plaintif:'; and that plaintiff might at any time take possession of the logs and sell them, and after deducting from the price the amount of his supplies, and all expenses he might be put to with them, to pay the balance, if any, to A. Held, That without a delivery, or some act done by the plaintiff under the agreement, he had no property in the logs cut thereunder by A. Tompkins v. Tihbits, 1 Han. 317. 8-l«eccssary Acts-Actnal or Constructive. A., the owner of timber in possession of the Fredericton Boom Company, for the purpose of being rafted, agreed 480 DELIVERY. verbally to transfer it to tlio pln.intiff, to be sold to payer • tain creditors of A., and gave the plaintiff a written ord' r upon the agent of the Boom Company, to deliver to tln' plaintiff all the lumber in the boom belonging to A. of cer- tain marks. When the order was presented, the Secrotarv of the Company said it would be all right ; but no transfer was made in the books of the Comjjany, nor any delivery of the timber to the plaintiff, nor any dealing with it by him. Held, That no i)roperty i)assed to the plaintiflf, and that the timber was liable to an execution, 8ubse(iuently issued against A. Allen y. Fenjuson 'ind IVIute, 1 flun. 149. 4— Bulky Article. A symbolical delivery of a bulky article, such as timber, is sufficient to pass the property to the purchaser. There- fore, where A., the manufacturer of timber, which was hauled by B. on the shares, agreed to sell the plaintiff 5i)0 tons out of a larger quantity lying on the bank of the river, and sent his agent, with the plaintiff, to deliver this quan- tity to him, which the agent did by putting his hand on one stick in the name of the whole, B. being present and agree- ing that his men should assist the plaintiff's men in raft- ing the timber, which they did, and the plaintiif and B. each had separate rafts. Held, That there was a sufficient delivery to the plaintiff, as against a person claiming under an execution against B. ; that if B. had a lien on the timber for the hauling, he had lost it by parting with the posses- sion. Fiddes V. Henderson, C. Ms. 47. 5— Vcstiii;;: of property. A. having a license from the Crown to cut lumber, agreed with B. that he should go upon the land and cut, and deliver the lumber to A. at a certain place, and that on delivery A. would pay him 208. per M. for the himber: and he also agreed to furnish B. with supplies to get tins lumber. Held, That until delivery or some transfer by B. of the lumber cut, no property in it vested in A. Ilcyiwlih V. Ay res, 5 All. 333. Stiflicieucy of. !See Contract 27. Hanington v. Cormier. DEMAND OF PAIITICI'LAHS. 481 WlM'tli«>r property |>HwNO»i uii«lor iiii aKi'«*«>ni«>nf, ii qiic'fiitioii of iiilt'iitinii. ,SV<' Contract '24. (Hhsnn v. MrKcaii. Appropriation Deliver). Scf Contract 25. Spnitiiir v. Kiiifi. I'lopcrly ill IninlM'r — C'oiiwtriictioii of 4Kr«>4>iiifiit— lli^lit to M'Miiiiio poKM«>»«!>)ioii on non-ptiynicnt. N.r Contract 2H. A'. B. Itij. Co. v. McLeod. ilvidriicc ol delivery. ,S''' Contract 2G. ll'cst v. liiitJcdfie. .\%si^iiiii('iit— I'ona ff4le»»— Rxet'iition- Whut eonMitute<« delivery. ,SV<' Assignment 1. Delivery when not iii>ve!>«siii'y. Sec Trovtr o. K(>-dolivery of Mliip. Sic Shipping Law 6. ^iiillii'ieiiey of delivery. .SVc Contract 1. DELIVERY ORDER. r*agc— Aeceptanee. .Set' Contract 2. DE.lIA'ND OF PARTICl :LAR§. ^ot a Kt4'p in eau^ie. S>r Aftidasit IH. 6. >oi ii wiiiver of neeei^Mity of filing; plea before appear- mice iu suniniary action, nor a step in 4:ausc. Sue Audi etrs v. Hanson, 1 All. 509. iJefendaut demanding particulars of plaintifif's claim ^tays cause, and defendant cannot tlierefore move for judgment as in case of nonsuit. O'Brien v. Tate, 2 Pug. 4. 482 DEPUTY. DE.MilVD OF PAVnKXT. See Bills and Notes I. I, 17. HI. 15. DRIVIAWD OF FLFA. See I'/actice VII. 15. DE.1IA:\D of FO§<>»E!Sf>ilO.>[. E fleet of. See Partition. Tcriiiiiiatioii of Teiiniicy. See Tenant at Will 3. DE.1IAIVD Xfin REFU.'^AI^. See Trover. Contract 11. DElVirRREK. Sec Pleading — Practice — Amendment. DEMFRKER BOOKii». Demurrer bookM not delivered aeeordintir to rule o( Court— Appiieatioii to re-enter eaii«>e after Jiid^'- iiieiit. See Practice V. 38. Anderson v. Faa-cett. DEPARTirRE IN FLEADINO. See P"e-idiniiitiii<'iit- Ai'<' I'l'vniiK'! olHrci'M -Bond— <'4»iitiiiu- nii4'<> ill ofHr<' Ijiiibility. Deputy Treasurers, appointed under the revenue laws in this Province are substantive revenue officers of the Crown, although a[)i)ointed by the Province Treasurer, and tlie appointment does not terminate with the litt of the Province Treasurer from whom it has proceeded, and con- sequently the surety bond given to the Crown by the deputy Treasurer on this appointment continues in force, and the sureties are liable for misconduct or defalcation committed by the deputy during the time of a subsequent Province Treasurer, such de[uity continuing to act without any new appointment. The Qiueii v. Ken; 2 K<'rr 137. The surety bond extends to moneys received by the deputy under ordinary revenue acts passed subsequently thereto, and also to moneys collected for special [jurposes bv the deputy under acts in force at the time of the ap- poiutmeut, such as the sick and disabled seamen's fund, the emigrant fund, beacon and buoy money ; and also to the Governor's share of seizures made by sucdi deputy, but not to the surplus revenue received at the Customs under acts of the Imperial Parliament, whi'di is only properly payable to the Province Treasurer. Ihid. The deputy who may have received such surplus revenue in his ofticial capacity from the collector of the Customs is Hable therefor to the Crown, although his sureties may be exempt; and the Crown may apply the moneys levied under extent against the deputy, to any part of the demand for which the extent has issued, to which he is liable. Ihid. DERELICT I.AI\0. ^Miere a navigable river recedes gradually and imper- ceptibly, the derelict land belongs to the riparian pro[)rif- tors. See Burke v. Xilen 2 Han. 166. DESCRIPTIOIV. S'f Abuttal. Crown Grant. Deed. 484 DISCLAIMKK. 4>l'l»ai*li4>M aw ' xmitoi-M. Sei' Executors and Adininistnitors V. (5. Ill Jill action for injury to personal property i-outiiineJ in a building, iv was held not necessary to specify the pro- perty injured, and that the words " the propertv tlioivin," were sulhcient. Jiiriciii;! v. lierri/niau, '2 Pii(i. 515. i>i:s4i, Bar. 420. DKIASTAVIT. Allegation of devastavit without specific averment of value of goods wasted, is bad. Sec Tlicrlock v. McGcc, 1 .1//. 116. At'«'i'iii(>iit of iiMiii'y to «'»«tHt4'. Scr Bond (Administration Bond). Executors, &c. DEVIATIO'V. VoynKc. Sec Insurance 20, 34, 35. 4'oiitract. See Assnmpsit. l>EVI<>iE DR^ISEE. Src Will. DIES ]>'OM. Good Friday, though a public holiday, is not a dies non, and a taxation of costs on that day is not irregular. (iilinore v. Gilbert, 2 All 50. DIRECTOR. S(ui Corporation — Bank. DISABILITY. Sec Limitation of Actions. DISCLAIinER. T«>uaiicy iindei* wife— Refusal to pay rent to Husband, Defendant held as tenant from year to year under an agreement with plaintiff's wife, and with his consent, the DISCHAHGE. 486 rent to l)e piiul to the wife. ffcJd, That refusal to pay rent to the pliiintitTi', anu a denial of his right to the property, but at tlip snnie time, claiming to hold it under the lease from tilt' wife, did not amount to a disclaimor. Ihic ticm. Aiuhrirx v. Tdjilor, 5 All. 144. Clniiii »f ilKlii »" |»i'o|M'i'ty. H. let lan;l to the defendant as tenant from year to viar. and died leaving an infant heir. The guardian of ilie child demanded the rent and gave notice to (juit. The (iefeiKhmt rtl'ust'd to pay, saying she would have kept the laiiil and taken care of the child, if she had heen allowed, auil that she had as good a right to the property as any body else. After the time mentioned in the notice for giving up possession, the guardian again demanded it. Thti defendant refused to give up the property, and said shi' liail a better right to it than any one else. Jlcld, That altliongii it luiglit be doubtful whether the defendant's first refusal amounted to a disclaimer of the right of the heir ; the second refusal, being unequivocal, was a disclaimer, and entitled the heir to recover in ejectment. Reed v. Bromi, 2 .1//. 36('). DISCHARGE. See Arrest. Bankrupt. Insolvent Debtor. Bail. l-Atiioii by i:\coiitoi'— Kc>l<>a$ic by Dovi^iois The Court will not order the discharge of a debtor in custody at the suit of an executor, on the ground that the persons beneficially intei-ested under the will have agreed to release the debt, and have directed the executor to grant a discharge. Pereival v. McKcnzle, 1 Kerr 498. 'i-Pliiiiitirt diKchargiiig Debtor— Remedy on judg- ment. The plaintiff by proceeding against the Sheriff by attachment for not returning the execution, and afterwards fODsenting to discharge him on making the return and 480 DISCONTINUANCE. paying costs, does not 'ose liis remedy against the defeiul- ant on the judgment, unless from the circumstances attending the proceedings against the Sheriff, his consent to discharge the defendant can be implied. Caninn v. Mott, 8 Kerr 131. Ucriisiiig to «li*»cliai'{?o on Equitable Satiislartioii. S-f Action at Law IX. 1. 3— By oii«> of Mc vera I PlaiiitiliVi— §4>roiicl AiT4>*it. Wiiere a defendant was discharged by one of several plain tili's, he cannot be arrested a second time at the instance of a co-plaintiff, and a rule nisi obtained by con- sent of defendant's counsel in order to tile affidavit t3 get license of a Court to issue a second c<(. m. was discharged with costs. Executors of Andrc.rs v. Chirh', Bur. 3"2. Iiupropei- Discliarg^e of Debtor by JikI;;:^^ order— I><- siiiu^: ti. fa. before or(l<'i r<'*tciii«le«l. See Execution IV. 19. liiNiiflieieiit Aflidavit for oi'der to hol4l to Bail— Appli' eatioii to re^eiiid 4»r«ler. See Arrest 10. PlaiiitJif iiao%%'er to (liweoiitiiiiie hits suit beloir decree. See Gilbert v. Campbell, 1 Han. 471. Service of rule to «liMCoutiHue without payment orilio costs. Party entitlecl to i»ove for |u«lKnieiit a«i in case of nonsuit.. See White v. Burton, 1 Han. 1. Parol K^ift of land— Statute of Uniitations. Qu(cre, W' lether a party gives land to another by parol, and puts him in possession, this might not be considered a discontinuance of the donee's possession, and the Statute of Limitations begin to run at once, and not at the end of the year ? Doe deni. Vincent v. Murray, 2 Pup. 375. DISSEISIN. 487 <>l<'V<'i'nl drfd'iidniitM— KcltiiiK iiMido rule. Wlitre there were several defendants, and plaintiff obtained a verdict apamst one. but verdict was found in favour of the others, and a new trial was obtained, the rule beiiij^ silent as to costs, a side bar rule obtained by plaintiff to disccntinue the action was set aside by the Court, which, however, gave plaintiff leave to apply to discontinue on terms. In this case the rule for a new trial was taken out in general terms, tliouj^h obtained by the attorney of the defendant, against whom the verdict was, and it having been done through inadvertence of counsel, the Court set aside the side bar rule to discontinue, but without costs. //,(rm V. Mtn-tcr, 2 Pn(i 495. I>g«^< OVIIKI OF >I.W KVIDEIVCE. Src New Trial I. 8, II. 13, III. 9. UI8H0\01JK (WOTK'F. OF.) Si'/' Bills and Notes IV. DI8I>[ISSAL OF 4l'AlISi:. \«n-«'iilij' ol" €aii»i(>. Sea Practice V. 3. Dl^iMl^iSAL OF €Oi1II?IIS«>ilOIVERS. .S>'' Appointment of Otiicers of Servant. Master and Servant 6. »ISqiioiit Coiivoy- iiiuv, aiKl prior registry. A. conveyed land to the plaintiff, who entered into pos- session. A. afterwards conveyed the same land to B., who registered his deed before the plaintiff's deed, and subse- unently conveyed to C, who conveyed to the defendant. Jh'hl, That the possession of the land by the plaintiff, not being wrongful, would not prevent the operation of any of the deeds under which the defendant claimed title. P(iy- son V. Good, 3 Kerr 272. 6-roiitiiiiiaiicc in pos«>essioii as against rcgistcro«l deed. Where a party enters under an unregistered deed his continuance in possession, though wrongful as against a subsequent purchaser claiming under a registered deed, does not amount to disseisin. Ibid. DISTRESS. I-Krpleviii— Distress for rent— Averments— Surrender by operation of law— r at the time of removal. Hoyt v. Stockton, 2 Uan. t)U. * —The mere removal of goods by the tenant from the demised premises, when rent is in arrear, is not conclu- sive evidence of fraudulent intent to prevent the land- lord irorn distraining, although the effect of such removal iiiay be to prevent the landlord from thus recovering the rtnt. In order to justify the landlord in pursuing them, it 492 DISTEESS. must appear that they were removed with a view to elude the distress ; and it is a question for the jury whether the removal is fraudulent within the Act of Assembly 50 Geo. III. cap. 21. Martin v. Gilbert, 1 Kerr 202. 7— Di!i>ti'aiiinbl4^ iiitercs>t in g:oo*li«— ^Disputed ri^^ht lu goods— Wrong--o Fiv'tMl Rent— Tools of trade— OtIici'diMtraiiiable pi'oix'iiy. A distress is illegal when there is no fixed rent ; so also is a distress of the tools of tlie tenants' trade, when there are otiier goods on the premises which could be dis- trained o.i. R'Ul 11 V. McMiim, 2 Pwh 370. 10-Ci:iiiii of Propoi'ty— Replevin. The 1 Rev. Stat. cap. I2i), sec. 12, (Coiisol. Stat. cap. 37, sec. 20 5) allowing claim of propert}' to be put in an action of replevin, is not applicable to cases of distress for rent. Orkn-mul v. Morrhuy, 3 Pag. 140. Roiirke v. Parks, 1 P. il'. B. 513. (Same principle — See Renainl v. Ke-nviclc, 1 P.dB. 8.) Kent not 4liio-Pi'occcil« from oxeciition— liaiidlord no i'i^:litto retain. See Landlord and Tenant. Fisli ex parte. Ciiiiiiil»tive remedy. See Wharfage. Whoit' teiisiiit \\n.s a^Mi^iied under Insolvent Act— Pivl'creiitial Lictn. ■SVf Insolv.nit Act. McLcod v. McGiiirk. Gxenitinii — 4iiiiin for rent — Reasonable time for ^livritf to make enqniries. ■S^rLiUidlord auil Tenant If. 15. Daiiii^M' iFealevJ II -Justice of] the Peace may giant. ^(( Justicj of the Peace II. 11. ^on.|ijiy,ne,it of rent -Power ol re-cntrv snfHeient dis- iiiNs-Afiidavit. See Ejectment IV. 2, 3. 494 DISTRINGAS. Impoiiiitling; CaUlc. See Damage Feasant. IrVork and I^aboiir— Agreement to ei e«1it on I'eiii -Dis-. ti'e!«K— Payment— Action for money liad and vv. e<'ived. See Assumpsit III. 40. Exces!!>ivc diNtrc!!>M— Accessary Allegation. See Pleading I. .53. DISTRESS WARRANT. Di»itre<«!>* Warrant — Irregular procceding$«. Tlip Act 18 Vic. cap. 38, relating to Sewerage and Water Supply in St. .John, authorized two of the Commissioners to issue a distress warrant for a rate, but no warrant was to issue till thirty days after a demand in writing under the hands of the Commissioners or any two of them of the amount due : one of the Commissioners signed a warrant in blank without any proof of a demand made for tlie rate, and the other Commissioner afterwards filled it up and issued it. Held, That it was illegal. Noiiiin v. Sears, 6 All. 215. The 25th section of the Act declared that no proceedings should be taken for the recovery of any rate after the expiration of one year from the time of the assessment. Held, That a distress levied on the 17th July 18G2, based on an assessment made on the 11th July 1861, was bad, though the warrant was issued within the year— the distress being a "proceeding." Ibid. DISTRIItllTION. See Heir at Law. Surrogate Court. DISTRIIVOAS. A distringas is not the proper remedy against a Slierin in office, to compel him to sell goods levied on. Pliillips v. Dickenson, Trin. T. 1831. Prior to iiule of Court of Hil. T. 4th Vic, the mode of proceeding against a Sheriff when out of office, for not bringing in the body of a defendant, was by distringas, and not by attachment. Henry v. Murphy, 1 Kerr 207. DONATIO MORTIS CAUSA. 495 p t 1 1 DIVERSION OF STREAiTI. See Damages I. 30. DIVORCE. I-Oii gi'uiiiKl ofCruolty— iVcce»«sai'y ttctn of violence. To entitle a wife to a divorce a niensa et ihnro on the ground of cruelty, there must be acts of violence or ill treatment by the husband, by which her life or health is endangered ; or, there must be evidence of threats of such violence or ill treatment, under circumstances which lead to a conchision that there was an intention on his part of carrying the threats into execution. A slight blow, given without premeditation, and in consequence of very insulting remarks made to him by his wife, does not amount to cruelty. Hunter v. Hunter, 5 All. 593. *2-Do\vci' barred by .4<1iiltery— Alteration of «leeree so as to bar Dower— !V» iiotiee— IVife not iinving: ap- peared in suit. In a decree of divorce a vinculo matrimonii, on the ground of the wife's adultery, where the conduct of the husband has been free from blame, the wife should be barrel of her dower. L'emui v. Leeman, East. T. 1872. Where, in such a case, the decree of the Court of Divorce did not bar tlie dower, the Supreme Court, on appeal by the hus')Lii 1, ii 1 1 re tli ) A'jt 23 Vic. cap. 37, ordered tliedi^cree to be altoi-dd in thit respect, though no notice of the appeal had Usen given to the wife — she not having appeared to the snit. Ibid. Divorce obtained on false afiid.avits. •SV'' Judgment III. Regina v. Wright. DOCKETII^rO OF JUDOIVIE.\T. It is not necessary for a person claiming property by virtue of a Sherifit's sale under execution, to prove the teketing of the judgment by the Clerk uuder 8 Geo. IV, «ap.7. Docdem. B.irloio v. Ilatfield, 1 Kerr 417. DONATIO IVIORTIS CAUSA. A man in expectation of death, endorsed a negotiable note specially to his wife, and delivered it to her. Held, 496 DOWEH. Tlmttliis did not operato as a donatin mortis caii8((, the note not beinj:; transferableby delivery only. IVeldon v. HVWoh 2.1//. o9H. A., shortly before his death, gave his wife a box con- taining certain things under circumstances which would amount to a donatio mortis caiisd of the box and contents. In tlie Ijox was a deposit receipt for t300, which A. had in the bank. Held, That this record being only evidence of a debt, and not a document that could have been transferred so as to make the bank liable to a third party, this money did not pass to the wife as a donatio mortis causa. {Sfi' Aniss V. 11'///, 33 Bcav. G19, that money due on a banker's deposit note passes as a donatio mortis can sahy the delivery of the note.) Ex parte Gerow, 5 All. 512. DOWEK. 1— Vi«'\v- A<«itioii in Land. A window cannot maintain an action at law for dower inland in which her husband had only an equity of re- dem[)tion during the coverture ; even though the husband's right has been sold since his death, and purchased by the defendant expressly subject to the right of dower, or though the mortgage may have been paid, if it is not discharged on the records. Doe dem. McDonald v. Estabroolcs, i AIL 455. 3— Husband toiiaiit in eoininon. If the husband was seised as tenant in common, tb-' widow can only be endowed in common under the Act '21 Vic. cap. 25, and not by metes and bounds. Doe dem, John- ston v. Jardine East. T. 1873. DOWER. 497 4-Vi«'W— Pi"oeoc«llii|fs. Where an order for view is made in an action for dower under the Act 21 Vic. cap. 25, tlie proceedings should be the same substantially as under the writ of view under the Act 4 Anne cap. 1(5. Ibid. .■J— AiTcar** of Dowor. Scinblc, That arrears of dower cannot be recovered un- less the husband died seised of the land. Ibid. Objection to trial of Action for Dower by common jury. See Judgment as in case of Nonsuit III. 12. 6-Artioii for dou'cr— liiiMbniKl MciMod sim l<>iiaiit in COIIIIIIOII. Whore an order for view is made in an action for dower under the Act 21 Vic. aap. 25, the proceedings shoukl be the same substantially as under the writ of view under the Act 4 Anne, cap. 10. If the husband was seised as tenant in common, the widow can only be endowed in common under the Act 21 Vic. cap. 25, and not by metes and bounds. Scmbh', That arrears of dower cannot be recovered un- less the luisband died seised of the land. Hoc dcin. John- ston V. JdnVtne, 1 Pnii S'^S. ?-Siil>Meqiiciitly acquired Titlo. M., (one of the defendants ), owning an undivided third portion uf a lot of land, and being in possession, executed a mortgage of the whole lot .in favor of the lessor of the plaintiff, at the same time giving a bond. M.'s wife, though not named as a party to the mortgage, executed it, the testimonium clause stating that she did so for the pur- pose of releasing her right of dower in the land mortgaged. Subsequent to the mortgage the wife acquired a title to the other two-thirds. Held, That the lessor of the plaintiff was not entitled to recover the portion subsequently ac- quired by the wife. Doe dem Burns v. McGraic, 2 Pxff. 185. 498 EASEMENT. EASEIVIEMT. See Deed. Crown Grant III. 1. 1— Pi'ivil<>K<>M and A|»|»iii't«>iiniiocs— IVonK in n deed not rroiitiiiK a riKlit or way. See Iloffers v. Peck, licr. 818. *.{— WoniN ill D<>(m1— Wau>i' priviii'K*' -liit4M«>Mt. A (loecl {Tjranting all the right title, interest, etc., of A., in and to " the water privilege of a piece of land describ- ed," conveys only an easement, and no '"'iterest in the land itself ; therefore, the grantee cannot, by virtue of the deed, maintain trespass for an enti-y on the land. Wilson v. ,S';«. i-hiir, 8 All. 343. 3— E\ciiiwive ciiJoyiii<>iit— ArqiiiNitioii of ^i^ilt— ('es<«a- tioii oriiNe—EflTcct— Question for Jury. An easement to appropriate the water of a stream in a particular way ( as by a dam to tarn the water in a partic- ular direction ), may be acquired by an exclusive enjoy- ment for twenty years ; and where such a right is once cre- ated, it is parpetual, an I passes with the inliaritance. McLean v. Davis, 6 All. 266. 4 A short cessation of the use of the easenent, o;- casioned by the burning of a mill with which it was con- nected, will not affect the right, if there was an intention to rebuild the mill carried into effect within a reasonahle time. Ihid. '"i The removal, by a tenant, of a raill-dara by which an easement has been acquired, without the afssent of the owner of the inheritance, will not destroy tlie right ; and after the expiration of the tenancy, the own^^r of the freehold may restore the dam. Ihid. « In a case relating to the right to an easement of this description, it is a question for the jury to determine — Ist. Whether a right has been acquired by a diversion of the water for twenty years ; and 2nd. If so acquired, whether it has been relinquished or abandoned. Ihld. t -]?Iiii.pond-Soil. A deed of a piece of land, " together with the mill-pi'i- vilege, saw-mill, and erections belonging to the same ; and EJECTMENT. 499 also the poiul or flowagu above tlio said mill, " conveys no lii'lit to the soil of the mill-pond, hut only an easement to (lam tlio water and overflow the land for the purposes of the mill below. IfcrhrHon v. Caiin'ui'iliion, 1 /'/*.'/. 235. H -|)(>iiiis«' -('oii«itrii('tioii ol— Wlinrf. Pliiintitl" leased to defendant part of a wharf forty feet wide by one hundred feet in length, " together with a right of way or passage for foot passengers, horses, carts, etc., in, through, over and upon the wharf to the southward, westward and northward " of the part leased ( the eastern part fronting on a highway). Hdbendiiin, the demised premises " together with the privilege and enjoyment of tlie said wharf and the said right of way or passage here- liy demised," etc. The plaintiff covenanted to keep the wharf in good repair and fit for the transportation of goods and merchandise, and for the passage of horses etc., so that it may be used by the lessee, his executors, etc., "for all purposes of ingress, egress, etc., and as a highway, " etc. Held That the demise only extended to the portion of the wharf forty feet by one hundred feet, and that the lessee had only a right of way over the remainder of the wharf, and was liable to pay wharfage for landing goods upon it. L'lnion v. Ilecd, 1 Piiff. 329. (oiiveyaiirc or mill with privileKt^N and H|>i>iirt«'iistii- ci'N— Soil orpiliiig place not pasMiig. .SceDeedl. 21. Diiviii;; po%ver of Engine— A^rcciiicat for a>ic of. An agreement for the use of driving power of an en- gine is only an easement which cannot be created by pa- rol, and a parol agreement would be determined by a conveyance to a third party from the party agreeing to give the power. Brewiiuf \. Benijinan, 2 Piu/. 115. ECCLESIASTICAL CORP&itATIO.\. See Church of England. EJECTITIEMT. I. LeSSOU's TiTLlO. II. Bktwkkn Pauticular Peusons. Rkiht of Action and Defence. in. Practical Puocedure. 600 EJECTMENT. IV. Setting Aside, or Staying Proceedings. V. Miscellaneous. VI. Action for Mesne Profits. VII. Consent Rule. I. Lessor's Title. 1— Bai-j^^aiii ain«l Sale ^ Jtidjiriiicnt Lion— Kolsilioii of execution to prior jiid{|rincut. Ejectment was sustained by a lessor of the plaintiff under a deed of bargain and sale from A., against the defendant, who claimed under a purchase from the Sheriff by virtue of an execution issued upon a judgment which had been obtained upon a former judgment of the Court against A., which latter judgment was prior to the deed of bargain and sale to the lessor of the plaintiif, the Court holding that the execution could not have relation back to the first judgment. Doe dein. Peahody v. M. Kmylit, /it/, 370. «— Lessee, Estate for years— tVeccssity of actual t'lifi), The estate of a lessee for years is not complete without actual enti-y ; therefore, where a lessor ia ejectment made title undci a lease from D., without showing any entry under the ic'ase, and it appeared also that the defendant had been several years in possession. Held, That the lessor's title was incom )lete. Doc v. Miuiro, 1 AIL 92. 3— KeiiiaiiKlerinaii. The tenant of a devisee for life may, after the death of such devisee be ousted by the remainderman without any i e'jce to quit. Doe don. Fields v. McKay, 2 7v>/;' 435. Lot No. 8, containing two hundred acres, was granted by the Crown to one W. in 1787, but it did not appear that he ever used or improved it. The lot remained in a wilder- ness ^tate until 1811, when E. H. entered upon it, clearei and cultivated seven or eight acres, and resided there until her death in 181B. By her wiU in August 1813, she devised hfty acres of the lot to one S. for her life, with thi' remainder to G. F. and the heirs of his body. At the death of S. in 1842, the defendants were found in possession of the fifty acres ; and it appeared that they came on the lot 501 EJECTMENT. under S., and paid rent to her, though the particulars of the demise did not appear. They now set up an adverse possession against G. Y.—lldd, That they occupying as tenants of S., couid not set up title by adverse possession a"ainst G. F., the remaiuderman. Ibid. Held also, That under the circumstances, it was fairly to be prtsumed they held the whole fifty acres under S., and not merely the part actually improved by E. H., and that at the death of S., the devisee for life, G. F. or his assignees were entitled to recover possession of the fifty lUd. 'D acres. niiiiilaiiiiii^^Ejt'ctiiieiit withotit «1oiiiaii«l of ' possession. Sec Will 8. Il<>ir-Di»i«iaiinei'. Sec Disclaimer. l-Lo«>KorS Title— Rebuttal by adverse possession proved aiiuen, at the time of the execution of a deed of convey- 502 EJECTMENT. ance frcm A. to B. of certain lands, the grantor is disseised thereof, no estate pat-bes to B. All the facts wbicli con- stitute a disseisin must be clearly made out, and no pre- sumptions should be allowed in favor of a disseisin. The doctrine of descent cast enures only to the benefit of the heirs, and not to strangers. A demise in name of hushaiid and wife of the wife's property, laid previous to the mar- riage, is not good. J>oe deiii. Thomson and wife v. Bnnws, Ber. 426. 7— Prior poNfitosiiion. Prior possession is a suflticient title in ejectment against a mere wrong-doer. Doe dem . Doivli nr/ v. Pearson , 3 Kerr 135. § The plaintiff in ejectment claimed under a con- veyance from A. in 1847. A. had then been in possession of the land about six years, and continued to occupy till 1856, when he left the country and the defendant took possession. Held, Eitchie, J., dissentiente, That in the absence of any title in either party, the prior possession of the plaintiff (claiming through A.) was sufficient to enable him to recover against the defendant. Doe v. T}wmsoit,i. All. 461. Per Bitchie, J., That less than twenty years" possession in the plaintifi", was not evidence of title in ejectment, unless the defendant entered under the plaintiff, or the plaintiff was wrongfully deprived of possession by actual ouster, or by force or fraud. I hid. 9— Vstcnnt M!«or— ffJiiiitatioiis— Pnyiiit'iit oIitiiI. It is a sufficient defence in an action of ejectment, to prove title out of the lessor of the plaintiff. Doe ex (hi. AIcGowan v. McColgan 1 Han. 633. EJECTMENT. 503 Where the lessor of the plaintiff derives his title from his uncestor, acquired by the Statute of Limitations, it is sufficient to prove, for the defence, that such ancestor paid reut for the loctn; in qno, while the Statute was running. Ihxtl Sm lufra IV. 3. ll-Till«' ill lliird person— Wortsage. Defendant in ejectment may shew that at the time of the demise laid, the legal title was vested in a third per- son, to whom the lessor of the plaintiff had mortga^'ed the property, though the defendant does not claim under the mortgage, (But see 2 Wm. IV. cap. 23, sec. 4.) Due dem. Munvov. Hanson, Mich. T., 1831. Po<«so<>if>ion or widow— Continuance aftei* «leatii of hns- baiid— lloidini; for whom considered — iVIaking out title by adding possetiision. .SVt' Possession 4. 1*2- ^iHiTiod^wonian —Parol gift to— Possession by liii:iiid— DonorS i-iglit. Where a party gives land to another by parol, and donee enters, he is in under the donor, and the donee is in possession simply by permission of the donor — the title does not pass by such a gift. Where there was a parol gift of land to a married woman, and the property was actually occupied by the husband of the donee and worked by him— she residing with him as his wife — Heldy That the wife could assign no title by such possession, either as against the husband or the donor. Qmere, Where a party puts another in possession of land, and gives him a gift of sa me by parol, this might not be considered a dis- coutiui f ice of the owner's possession, and the Statute of Limitatio. _ '-gin to run at once, and not at end of a year when a teutincy at will would cease. Doe dem. Vincent v. ^kmiy, 2 I'tdj. 375. l:)-Wiii-|||||iosing condition— Heir— Demand ofPos- »ie*><>iioii. J' M., senior, devised land to J. M., and also provided 504 EJECTMENT. that J. ^[., junr. should have full possession and control of the property until J. M. should settle permanently thereon. J. M. died in ahout two years after the teFtator's dfcease without having made a permanent settlement. The heir of J. M. having brought ejectment against J. M., junr., Held That on J. M.'s death, the fee passed to his heirs ; also that the latter could bring ejectment without previous de- mand of possession. Doe deiii. Mnrmy v. Miu'vay, 2 l*ug. 861. inai-i-icfl woman— Release of dower — Property t^iib* st>«|iiciitly acquired. Si'ii Dower. Doe clem. Burns v. McGraic, 2 Png. 185. II. Between Particular Persons. 1--Tciiaut at will— Adverse possession— Statute of Limitations. Where B. being put into possession of premises by A. under an agreement for purchase, continued to hold such possession for upwards of twenty-one years, and receive the rents, profits, etc., the Court considering B. strictly a tenant at /r///, held in an action of ejectment brought by the heirs of A. against B.'s grantee, that the plaintiff's right of action was barred by the 7th section of the Act of Assembly of (j Wm. IV., cap. 43. Doe dem. Pnrdy, et nl V. Peters, Ber. 350. 2— ]W«'rBer of tenancy at will—Possession under agree- ment for sale. An agreement was made by A. and B. by mutual bonds, for the sale and conveyance of lands by A. to B. on pay- ment of a certain sum on or before the 1st of May, 1821), together icith laivfid interest for the first three i)et into possession of her land, and died ; her daughtoi, t-..x;.Aiag as heir, brought ejectment, and there was conflicting evidence of the death of the husband, upon which the jni; fou^ ' n favour of the life. Held, That as the husband had tl)e posaessory right as tenant by the courtesy, the verdict was properly given for the defendant. Held also, That though the defendant, having received pf uriession from the mother, might be estopped from dis- puting the right of the lessor of the plaintiff to inherit the land, he was not estopped from shewing that she had not the right to the immediate possession. Reed d. Burchelh. Broton, 2 All. 168. The heir's right of entry is suspended until the death of the tenant by the courtesy . Ihid. Lessee and JLessor— Defence by Lessor— Siineiidcr of lease— Facts for jury. See Surrender. 8— Persons beyond seas— Right of action. The right given by 1 Rev. Stat. cap. 139, -iec. 16, to persons beyond seas, to bring an action for the recovery oi land within ten years after the disability ceases, does not suspend the right of action during the person's absence. Doe dem, Fitzgerald v. Maxwell 6 All. 253. 9— No documentary or possessory title. Defendant let into possession under written agreement, necessary to produce it, or give secondary evidence alter notice to produce it. See Evidence VII. 23. EJECTMENT. 507 lO—Fraiidiileut conveyance— Resulting trust— Equit- able estate. R. N., the plaintiff's father, agreed to purchase land fromF., and paid for it; but being somewhat in debt, he requested F. to make the conveyance to the plaintiff — then about two years old — which was accordingly done, and R. N. took possession of the land. Upwards of a year after this, a judgment was obtained against B. N. and execution issued, under which the land was seized by the Sheriff and sold to the defendant. In ejectment by the son — Held, (Fisher, J., dissenting), That though the purchase by B. N.* iu the name of his son, might create a resulting trust in favour of the former, he would only have an equitable estate, and the defendant, claiming his right under the Sheriff's deed, had no defence against the legal title of the plaintiff under the deed from F. Nixon, v. Bomerville, Mich, T. 1871. Tenantof Mortgagee— If older of Equity of redemption. A tenant of a mortgagee has a right to set up the title of the latter as a defence to an ejectment brought by the person holding the equity of redemption. Doe dem. Smith V. Smin; 1 P. d' B. 56. Landlord and tenant— Re-entry— Clause from 1 Rev. Stat. cap. 136, sec. '14— Amount of Distress. -See Landlord and Tenant 25. Doe dem. Chipmanj. Roe. Summary ejectment by Landlord. See Landlord and Tenant VIII. III. Practical Pocedure. I-Service of Declaration. A service of declaration in ejectment on the tenant's son on the premises, is not sufficient without proof that it came to the tenant's knowledge. Doe dem. True v. Fen, 1 Ken '^~ Service of a declaration by reading it in a loud ^'^ice, and passing the copy and notice under the door of 508 EJECTMENT. the dwelling-house, the tenant being in the house at the time and refusing to open the door, or listen to the explana- tion of the service. Held sufficient. Doe dem. Beatty v. Roe, 2 Kerr 169. 3— Landlord— Affidavit— IVame ot tenant. In ejectment brought by the landlord for non-pay. ment of rent under Act 60 Geo. III., cap. 21, where half a year's rent is m arrear, and no sufficient distress found on the premise^^, the affidavit of service of declaration by affixing a copy to the door of the house, the possession being vacant, should state the name of the tenant from whom the rent is due. Doe dem. White v. Roe, 2 Kerr 360. 4 Service of a declaration in ejectment on a daughter of the tenant, on the premises, is not sufficient to obtain a rule for judgment against the casual ejector. Doe dem. Disbrow v. Fen, Ber. 347. a Service of a declaration in ejectment on the wife of the tenant, at his dwelling-house, is sufficient. Doe dem. Peabody v. Roe Ber. 347. 6 Where the tenant could not be found, and no person was in actual possession, and a copy of the declara- tion had been affixed on the most conspicuous part of tiie premises, a rule nisi for judgment was granted, to be served in the same manner as the declaration. Doe dem. Tmi- well V. Roe, 1 All. 685. 7— Rule Nisi— Statement— Name of tenant-91 umber of days for appearance. The rule nisi for judgment against the casual ejector, need not state the name of the tenant, nor the number of days allowed him to appear. Doe dem. Taybr v. Roe, 1 All. 1. Service of— \¥liere tenant could not be found. See Supra 1. §— I¥on-entry of rule— Excuse. Where the rule for judgment against the casual ejector was not entered at the term in which the notice directed EJECTMENT. 509 f the tenant to appear, in consequence of a proposition made by bim to settle the claim, and which he afterwards refused to carry out, a rule for judgment was allowed to be entered at the next term. Doe dem. N. B, and Nova Scotia Land Co. V. Roe, 5 All. 286. 9-Claini as landlord— Allowing: to defend as such. If the relation of landlord and tenant does not clearly exist, there should be a summons or rule nisi before a per- son claiming as landlord can be allowed to defend an action of ejectment in that character. Doe dem. Fauls v. Fen. 1 All. 685 and 683. lO-Judgmeni against casual ejector— Acknowledg- ment of service of declaration. An acknowledgment by the tenant before the day of appearance, that he had received the copy of a ayclaration in ejectment, is sufficient to entitle the plaintiff to judg- ment against the casual ejector. Doe dem Kirk v. Roe, 2 AU. 453. U-Objcctious as to proof ol ^ possession— JTIust be taken at trial. If the defendant in ejectment wishes to limit the plain- tiffs right to recover, to part of the land, in consequence of its being chiefly wilderness, and no actual possession proved, the objection must be taken at the trial Doe v, McGloyn, 4 All. 188. Premises nnder demise— Service ot declaration- Notice of Landlord— Essentials. See Landlord and Tenant 26. Orpwood v. Morrisey. IV. Setting aside or staying Proceedings. l-Judgment lagainst casual ejector-Non-FulAlment of agreement— Right to enter Judgment. Where by the terms of an agreement entered into by we parties pending an action of ejectment, that the tenant should give up possession of ten acres of the land in ques- 510 EJECTMENT. ■i -■ ', tion, situate along a certain shore, wherever the same might be selected, but that if the selection included the house where the tenant lived, he was to be allowed to hold it until the Ist May ensuing; and on failure to perform the stipula- tions of the agreement on the part of the tenant, the lessor was at liberty after the 1st May to sign judgment, etc. ; and it appearing that the selection along shore was to be such as to suit one W. C, and that he, with the lessor and a sur- veyor, went about 1st April following and made the selec- tion of the ten acres, which included the house where the tenant resided, and afterwards the tenant in possession being dissatisfied with the selection, without the assent of the lessor got another surveyor, who made a selection of the ten acres, which excluded the house; and upon the lessor and others on his behalf coming on the premises to ascertain whether there were any mistake in the first survey, the tenant refused to let them proceed, threatened to shoot them, and refused to give up the house on the Ist May ; whereupon the lessor of the plaintiff entered up judg- ment against the casual ejector, and sued out execution- Held, That the lessor was right in so doing. Doe dm. ScoviU V. Roe, 3 A'err511. 9— Vacant premises— Re-entry— Distress. Affidavit should state that the party had searclied for property on the demised premises on a particular day, and that none could be found — the bald statement that no suf- ficient distress was to be found, not sufficient. Doe dm. Gilbert v. Roe, 2 Han. 5. 3— Re-entry for non-payment of rent— lusufflcieiiryof distress to satisfy rent not sliewn— Lease -Re* nerval- Mecessity of realising: portion ot distress if any found, before bring^ing ejectment on rliiii<«e of forfeiture. A lease was made by A. to B., for fourteen years from 1st May, 1849, with a covenant by A. to pay for improve- ments, or renew the lease at the end of the term. A. con- veyed the reversion to the plaintiff in October, 1869, at which time it was alleged that $1,200 arrears of rent were due from B., who had left the country. In ejectment, foif SB ® s-r EJECTMENT. 511 loifeiture for non-payment of the rent, the plaintiff claimed the arrears, and $72 for a half ye-^i's rent, due since he became the owner of the reversion. The affidavit of the bailiff stated that when he served the declaration there was not sufficient distress on the premises to satisfy the arrears of rent stated to be due, and that the value of the goods on the premises at that time did not excaed $50 in his estima- tion. Held, Ist. That as this affidavit referred to the whole arrears of rent claimed by the plaintiff, it did not clearly shew that there was not sufficient c: stress on the premises to satisfy the half year's rent accruing due since the plaintiff became the owner. 2nd. That as it did not appear that the lease had been renewed, or that B. held over after the expiration of the lease, or that the tenant in possession held under B., there was nc*:hingto shew that a new tenancy was created, to which the proviso for re-entry in the lease would attach. If the goods on the demised premises are not sufficient to satisfy half a year's rent, the liudlord may bring ejectment on the clause of forfeiture, without realizing a part by distress. Doe dem. Boyd v. RoCy 2 //')«. 49. l-Jiidgiiieiit by default— Jflerits. When a judgment by default in ejectment had been signed, in consequence of the neglect of the attorney in- structed by the tenant to enter an appearance, the Court set it aside on an affidavit of merits, the writ of possession not having been executed. Doe dem. Thomson v. Roe, 2 All 2.59. ' 'i-Siayiiit; l»i*occed[iiijjr!>i until payment of costs of previous action. The lessor of the plaintiff claim ^.d uii ler a deed from A.. in 1S47, and the defendant under a subsequent deed from the assignee of A., who had becom:j bankrupt, under which deed the defendant brought ejectment against A. and ob- tained possession. The Court refused to stay proceedings in ejectment brought by the lessor of the plaintiff till the defendant's costs in his suit against A. were paid, though tbe lessor of the plaintiff had employed the attorney to de- fend that action. Do: v. Thomson, 4 AIL 596. (>12 EJECTMENT. ^—Second trial -Refusal to cuter into consent rule- Costs. Where a second ejectment was brought in consequence of the tenant's refusal to enter into a consent rule contain- ing a proper description of the premises, the Court refused to stay the proceedings until the costs of the first suit were paid. Doe dem. Morrice v. Roe 3 All. 84. 7— Ejectment for non-pnymeut of rent— Vacant prem- intes— (Service— Rule nisi— Irregularity. The lessor of the plaintiff having a right of re- entry, and there being a half year's rent due, brought an action of ejectment, and the premises being vacant, service was effect- ed by posting the declaration and notice on the door of the house. Motion having been made for judgment nisi, the court granted a rule nisi with directions for it to be served in the same manno- i ; <^^he declaration. The lessor of the plaintiff treated tlie ru is a rule for judgment nisi, and not receiving an appearance in the time allowed, signed final judgment against the casual ejector and issued a writ of habere facias, undt r which he was put into possession. On motion to set aside the judgraenc and writ, it was held, by Allen C. J. Weldon, Wetmore and Duff J. J. (Fisher J. iiiss.) that it was the duty of the plaintiff's attorney to see what rule was granted on his own application, and that the judgment was irregular and should be set aside. Semble, Under tli 38e circumstances the lessor of the plaintiff is entitled to a rule absolute for judgment nisi in the first instance. Doe dem. Step.'ienson v. True, 2 P. i B. 743. V. Miscellaneous. — Demise expired— Amendment. Where demise stated in a declaration had expired, the Court refused, after a delay of three years, to allow the plaintiff to amend by extending the demise, though it was suggested the defendant would set up the Statute of Limita- tions as a defence to a new action. Doe v. Todd, 1 All 601. EJECTMENT. 518 4— ConHPnt rule— LaiidH included by mistake. The defendant in ejectment entered into a general con* sent rule ; at the trial the Judge directed a verdict for the defendant for all but a small part of the land described, but the jury did not agree, and after the trial the defend- ant obtained an order to amend the consent rule by striking out that portion of the land, on the ground that it was in* eluded by mistake. Held, That as the plaintiff was en- titled to a verdict for that part of thj i-nd, and conse- quently to the general costs of the cause, th. amendment could only be made on payment of such costs by the de- fendant. Doe V. Day, 3 All. 440. 3— Special consent rule. The lessor of the plaintiff is not bound to enter into a special consent rule without the order of the Court or a Judge. A consent rule for part of the land is special. Ibid, Verdict against evidence— Statute of Limitations operating against second trial. See New Trial II. 18. Landlord and tenant— UTrit Right to bring eiectment. of restitution— Title- See Landlord and Tenant VII. 5. Ejectment for Dower. See Dower. 4-Terni of demise— Amendment— Wlien refused. An application to amend the term of the demise stated in a declaration in ejectment, so as to enable the lessor to issue execution, refused after the lapse of 15 years and after the death of the tenant. Doe dem. Fauls v. Fen, 6 AU. 328. * Verdict for whole premises described in consent nile, when defendant might be entitled to part. No ground for new trial. Doe dem. McKenzie v. Mather, 2 % 255. 614 EJECTMENT. 6— Several demises— General verdict. Where there-are several demises in a deckration in eject ment, and a general verdict for the plaintiff, the defendant cannot apply to confine the verdict to one count, he should move for a new trial, if there is no evidence to sustain the verdict on one of the counts. Do'' Jem. Spence v. Wel- ling, 6 All. 479. Re-entr)" after service of Mrrit of possession— Comt hai^ no poM'er to intefere. See Attachment 54. Doe dem. Cogswell v. Smith. Ouster— Evidence of. 89. Allison v. Smith. Brown v. See Evidence IV. Moore. VI. Mesne Profits. I—Evidence to sustain action. Where a declaration in ejectment had boen sewed on A. and B. aa tenants in joint possession, and upon A. ap- pearing to defend, the common consent rule was entered into with him alone, whereby he was declared to be in pos- session of the whole premises in question, and the plnintiif nevertheless in default of B.'s appearance proceeded to ou- ter up judgment against the casual ejector, and issue a writ of possession for the whole premises, under which a pro forma possession was delivered b} the Sheriti' to the lessor of the plaintiff, Held, That such judgment and possession were not suthcient to enable the casual ejector to maintain an action for mesne profits against B., the suit being still pending with A. ; and Semhle, The lessor of the plaintiff ought not to have executed an hnbere under judgment against the casual ejector, while the issue joined with A., involving the title to the whole premises, remained unde- termined. Doe V. Esterbrooks, 1 Kerr 119. a An action for mesne prolits against husband and wife alleging a joint trespass, is not supported by proof of a EJECTMENT. 515 judgment in ejectment against the wife before marriage, the marriage not beiug averred. Burnham v. Watts, 1 All. 89. 3 Qu.erp, Whether an action for mesne profits can be maintained without a judge ment in ejectment. See Doe y. Dnhmn, 2 ALL 446. Jiidgineiit receivable in evidence. &V( Evidence III. 5. 4— Costs— Damages. Plaintiff entitled to recover cost of judgment against casual ejector. See Damages I. 24. Actual payment of costs necessary before recovery as damages. '>(e Damages II. 7. VII. Consent Eule. Special — Plaintiff not bound to enter into vrithout order. See Supra V. 3. Aiuciidnient or. -S'cv Amendment III. 7. Lat<>iii •« ill application for extension ot demise. Sec Super a V. 1. Lateness of amendment. See New Trial III. 54. Lands included by mistaice. -SVc bupera V. 2. 1-Evidciice. Rules from the office of the Clerk of the Office of the Pleas, should be signed by the officer himself, and not by his clerk ; though a consent rule in the handwriting of Buch clerk is admissible in evidence before a sheriflf's jury on a writ of inquiry. Jarvia v. Edgett, 1 All. 264. ^16 ELECTION. '3— Effect of Consent Rule. The lessor of the plaintifif and another person, each named J. M., applied for different lots of land ; by mis- take, the grant intended for the lessor of the plaintiff, got into the possession of the other J. M., who conveyed to the defendant. In ejectment, the consent rule described the land as " granted to J. M. and by him conveyed to the de- fendant." Held, That the object of the consent rule was only to settle the local situation of the premises, and that the plaintiff was not estopped by the admission from giving proof of his title. Doe dem. Mallet v. Robicheau, 1 All 419. 3— Estoppel. Qiuere, Whether an estoppel which binds C'^'^ defendant will bind another because he has joined in the consent rule. Doe v. McDonald, 1 All. 673. 4— Corporation. Qiuere, As to the effect of a consent rule in an action brought by a Corporation. See Doe v. Guion, 1 All. 6. Production [or agreement for consent rule— Sufficient to require defendant to confess Rase, dec. See Practice XIV. 15. Doe dem. Johnstone v. Milne. EL.ECT10JV. Of Directors. See Joint Stock Company 4. Tenure of Office— Liability. See Bank 3. JfTembers of Assembly. See Election Law. 1— Polling— Completion— Equal number of votes- Double return. " Polling," under the Act 11 Vic. cap. 65, sec. 21, is complete when the elector declares the name of the candi* >date for whom he votes, and the officer enters such vote in ELECTION. 51T the poll-book; after which it is too late to require the elector to take the oath of qualification. Stiles v. Gilbert, i AIL 421. Per Parker, J., That where two candidates have an equal number of votes, the Sheriff should make a double return. Ibid. 3-Presiding officer— Right to vote. The presiding officer at an election under the Act to in- corporate the Town of Moncton, 18 Vic. cap. 66, has no right to vote, except to give the casting vote where the- numbers are equal. By acting as returing officer a person abandons his right to vote as a rate-payer. Ex parte Tuttle, 4 All. 615. 3-Parish officers— Place of meeting— Session^s duty. The Sessions of the County of St. John had, pursuant to Act of Assembly, appointed a certain school-house in the Parish of L. as the place of meeting for nomination of candidates for Parish Officers, but the Poll Clerk had given a notice for the meeting to be held at the house of one C» in the same settlement, not more than seventeen rods' distance from the school-house. The parishioners met at the place named in the notice and organized the meeting, and then adjourned to meet at the school-house, where the election afterwards took place. Held, That the foundation of the election being the meeting for nominations of candi- dates, as that was not held at the place appointed by law, their election was bad, that in point of law there was no election, and that it became the duty of the Sessions to appoint to the several offices. Ex parte Robinson, 3 Pun. 389. l-R€€tor-E lection of— Voters. ^^ here at an adjourned meeting held for the purpose of nominating a rector, only a portion of those who voted ^ere admitted to be qualified, there being a doubt as to tilt rest. Held, That if two-thirds of the qualified voters present voted for the candidate presented, the election is 518 ELECTION. good, though others who voted may not be qualilicjij Held, That in taking an open vote it is not necessary that the names be recorded, no one asking for it. Quaere, Whether a rector can be elected by ballot? Whether certiorari will lie to remove the proceeding in election? Also, whether payment of one dollar or up- wards at any time before the meeting will entitle a parishoner to vote. Ex part*' v. Beck, 2 Pug. 66. 9— Corporate Bodies— Right to Vote. At a meeting of rate-payers held, pursuant to Act 21, Vic. cap. 54, to consider the propriety of the County granting aid to the Albert Kail way, the President of an incorporated Company was present, and tendered the vote of the Company, which was refused, on the ground that the Act under which the meeting was called only gave ** persons " the right to vote, and not corporations. Held, That the Company's vote was improperly rejected, and the proceedings were quashed. It is no argument to say that had the vote been received the result would have been the same. The Shoriff having refused to allow the President of the Company to vote on the ground that a Corporation had not the right to vote, it cannot afterwards be set up that he produced no authority. Regina v. Reid, 2 Piuj. 26. 6— Confirmation of^clection of officers— illaiidaiiiu«i. Where a list of the parish officers elected at the parish meeting has been properly certified by the Chairman and attested by the Clerk, the Sessions are bound to confirm the election, unless some irregularity is shewn in the elec- tion. Ex parte Robinson, 1 Pug. 321. 7— Councillors— City iof St. Joim— Personal noiiiiiiatioii of t%vo persons. Under 16 Vic. cap. 37, sec. 11, Local and I'nvuie Statutes, N. B., it is necessary that two qualified okctors should personally appear and nominate a candidate for the office of Councillor. Otherwise the Clerk may refuse to receive the nomination. Ex parte O'Kcefe, 1 P i(; B. -i ELECTION LAW. 519 Incorporated company —Directors Projiy. Election of — At the annual meeting of the stockholders of the Albert Mining Co., held for the purpose of electing Directors, one of the stockholders moved that certain persons (naming them) be the Directors of the Company for the ensuing year. HjUI, ^bat in order to defeat their election, other parties must ^ nominated and elected by a majority of votes, and that it woulJ not be sufficient for the majority merely to vote against the persons nominated without voting for some one e^se. Held also, That to give a per- son the right to vote for another, he must distinctly put forward alb claim to do so, and must explicitly vote in the name and on behalf of the stockholder whose proxy he holds. Spnrn v- Albert Mining Co., 2 Pug. 260. insolvent Act of 1S69— Official assignee— Rights of in defect of election of creditor's assignee. See Insolvent Act of 1869. Marsh v. Siveeny, Disqualification. See City Councillors. Fredoiicton, (City of.) or counts in declaration. Ste Treripa,.s ". 8, 12, 13, 25. Ok I'ledit. See Principal and \gent 1, 2. 01 commissioner— Taking necessary oath of office. /See Commissionev 5. ELECTION ^L,A1¥. 1- Petitioner— Oua I ificsition. ' i»erson who lias been nominated as a candidate at an election for representatives for the Local Legislature, and las made the declaration of qualification required by the Act of Assembly 18 Vic. cap. 37, and whose name has been entered by the Sheriff as a candidate in the poll book, and M'^ contested the election and received votes as a candi- ■ i 1 \ i i 520 ELECTION LAW. date, is entitled to present a petition complaining of the due election and return of a member, under " The Bribery and Corruption and Election-Petition Act 1869 ;" and it is not competent for the respondent, on the trial of such a petition, to shew that the petitioner was not qualified as required by the Act 18 Vic. cap. 37. Hchert v. Hanington, 1 Pug. 169. 3— Bribery— KnoMTledge of Candidate— Re-election. The election of the defendant as a member of the Local Legislature was set aside under " The Bribery and Cor- ruption and Election-Petition Act 1869," for bribery and treating by his agents — the Judge certifying that the bri- bery was not committed by or with the knowledge or con- sent of the defendant. At an election held to fill the va- cancy, the defendant was again elected. Held, That he was not disqualified for re-election, the Act not having de- clared any such disqualification except where personal bribery had been committed ; and that the practice of the Imperial Parliament in such cases did not apply. Kay v. Hanington, 1 Pug. 26. 3— Costs— Taxation— Scale. The costs on the trial of an election petition are to be taxed, as near as may be, according to the scale of costs in actions at law, and no greater sum can be taxed for coun- sel fees than is allowed by the Ordinance of Fees. Hehert V. Hanington 1 Pug. 169. 4— False Return. By the Act 11 Vic. cap. 65, sec. 30, all false returns which shall be wilfully made of any member to serve in the Assembly of this Province, are prohibited and declared to be illegal ; and in case any person shall return any member to serve in the Assembly contrary to the right of election established by the Act, such return shall be ad- judged to be false, and the party aggrieved, to wit, every person that shall be elected to serve in such Assembly, by such false return, may sue the Sheriff or Returning Officer, ELECTION LAW. 521 and persons wilfully making and procuring such false re- turn, and recover the damages he shall sustain by reason tliiicof. lldil, That an action would not lie against a \ a Sheriff under this Act, for a false return to a writ of ekction, without proof of actual malice. Stiles v. Gilbert, 4 ML 421. Per N. Parker, M. E. Qiuere, Whether a person re- tuined by the Sheriff as a member, but who, upon a scru- tiuv before the Plouse of Assembly, fails to maintain his right to the seat, is a person " elected," and therefore en- titled to maintain an action under the Act as " the party iiggi'ievL'd ?"' Ibid. Per Parker, J. That a person having the majority of votes, and who ought to have been returned by the SheritI, did not lose his right of action for the false return by a decision of the House of Assembly against his peti- tion; though the qiuintuin of damages might be doubtful. IhuL >'i-('0!it»«— Attacliaiicnt. ^Vbere the Judge who tries an election petition, makes an order for costs, under the 62nd seetion of the Act 32 Vic. cap. 32, an attachment for non-payment of the costs slioukl be granted by the Judge and not by the Court. Kay T, Ikidiujtuii, 1 Pug, 331. 6-\o(icc— Publication. Publication of notice in a newspaper " for three con- stcutive days," under the 69th section of the Act 32 Vic. cap. 32, cannot be made in a weekly newspaper. Hcbert ^I'Mitijkn, 1 Pay. 32-1. (•>)>tor|uil>li<>i\v MtMl Corruption :iii<1 I^loctioii Pctiiioig Art The common law of Parliament, or in other wor.ls tlio Tarliamentary Law of Agency, is in force in thia Province. and is to he acted on in administering " The Bribery and Corruption and Election-Petition Act 1850." (FisliLT, T (Viss.) Diijf'y V. liijcn, 3 Fuf/. 110. S— A^oiit— A» by. A conversation with a witness, or the admission of an agent, had and made on the day of the election, immediately after the close of the polls, is admissible in evidence. Hi. 9 — 1^l<>ctioii— Dc'tei'iiiiiiHtioii of. An election is not over till the declaration of the poll is made. Ih'id. 10— CaiKlidate— Petitioner against return ol liUMulxM-. It is suflicient for a person petitioning undei- the Act ;-32 Vic. cap. 82-, against the return of a member elect, to show that the petitioner was a candidate dcfitdo. lliicrt V. TLimiKjion, OAIl. o3{). Insutiiei<>iit ffcoiiiKl I'or nii<4««in^ petition— liKlcmiii- fyin^' pt'titionei'. It is no ground for dismissing an election petition under the Act that the petitioner has been iudemnitied by his attorney against the costs and expenses. Ibid. Bettin;;' witii eleetor. A supporter of the respon lent at a previous election Imd made a bet with an elec^'.or tluu the respondent would poll a certain number of votes in a district. The respondent when informed of it, stated that he w'ould pay the bet it liis supporter lost it ; he did lose it, and shortly before tbe election petitioned against, respondent paid the bet. HdiL Under the circumstances, that this did not amount fi' bribery within the Act. Iliid. Entertainment— IVo previous nn(ler«staii4iin^:. Entertainment of some of respondent's friends at Ins ELISORS. 523 own house on the evening of the polUng day, without any previous understanding, is not treating within the Act. ///((/. A person authorized by a candidate to canvass for liiiiiduring the election, is his agent. The authority to act may be express or implied. Ibid. Bribery— I*i'rt«r-Coiitradi«'loi\v evi«l(>iic4>. Wliere proof of bribery rested on the evidence of the person to whom the bribe was alleged to have been offered, iUid was denied by the agent — the whole being only matter of conversation. JleliU That bribery was not proved. Ibid. Ti'ciiliii;;. Tlie amount of treating is immaterial, if it is done for the purpose of influencing voters. Though one act of treat- ing a few voters may not be sullicieut in itself to avoid an ■ lection, it will be so, if shewn to be part of a general sys- ttiii of treating at different polling places. Ibid. lliciit— KeK|>oii««il»ility ofcstiididato for a<'t of. If an agent gives money to a third person to be used in tii-ating voters, and it is so used, the candidate is responsi- V;e for it. Ihid. <>iviii(; iiioiipy lor coiivcyaiicos. Giving money to provide conveyances to bring voters to tlie polls, is bribery within the Act, being a " provision in Older to procure the electors to vote." Ibid. As a general rule the successful party is entitled to costs; but he will not be allowed the costs of parts of the pttition containing charges of which there is no proof; nor ot the particulars, if tiiey are unnecessarily long and do "« ^ive proper information. Ibid. K«"*iMins: ■i|>|>oiiinii<>iit ol. ■^'r costs V. 29. Stiles v. Gilbert. Elisor 'i Miiiiiiioiiiii^^ iiii>y-Iiiil>ai'fialily. •^''■'- Jury 14. ,S7 Su cuf^e ol iiou-»ilit, cannot itto ««igiio(l uutcss tlic Gsiiise lgn*« been dniy entered by the pi4iintili'm the cierkN olUce. Miller v. Weldon, 1 Ilan. 376. t^suiMC inipi'opeiiy entered— Attorney's duty cau'-e made A renianet cannot move lorJudguK'iit ii!!>in case ot non-suit. See Judgment IV. 2, 6. Motion tor judi^nncBK absointe a.y iai case oi iioii-siiit siiould not lie entered on motion paper. See Judgment as in case of Non-suit I. 26. Entry ot caiusc alter time limited— Keasoiis for nejflect— Costs. Plaintiff's attorney, through an oversight, omitted to enter the cause at the proper time, .and both parties pro- ceeded, believing it was properly entered, until defendant ENLARGING RULE. 525 ohtained judgment on a floranrrer, when it was dicovered no entry docket had been filed, and the clerk refused to enter up the judgment. In an interlocutory proceeding on the part of the plaintiffs, it was stated the cause was entered, by which the defendant's attorney was misled and (lid not search at the clerk's office. The Court (Weldon and ^Vetmore, J. J.,) on defendant's application, granted a rule for plaintiff's attorney to enter the cause. An application nmde in the same cause, to compel the plaintiff's attorney personally to pay the costs of defence, was refused; and this application having been embraced in the notice of motion, the rule granted to enter the cause was made with- out costs. niton y. Miliicr, ^Pikj. 221. EKOI.IS1I STATUTES. See British Statutes. E]VLAKOIi\0 RULE. I -Delay in Service. Where a rule to shew cause has not been served in time, it will not be enlarged unless the delay is satisfactorily ac- counted for. Ex parte Glass, 2 All. 88. 'i A rule nisi for quashing a conviction was granted ill Easter Term, returnable at the next term, the rule was not Starved upon the Prosecutor of Justice until the day preceding Trinity Term, the Court refused to enlarge the rule, no satisfactory reason being shown for the delay. l^kn V. Harshman, Trin. T. 1868. :»-lgHoiaiice of a'lacticc. "Where a rule for certiorari was made in Trinity Term, Ijut the writ was uot taken out, the Court refused in Michaelmas Term to enlarge the rule on an affidavit of the attorney that he was not aware that by the practice he ought to have taken out the writ before Michaelmas Term. Ikmi V. Harshman, Mich. T. 1872. Enlarging rule lor attticlimciit. See Practice VIII. 22. 620 EQUITY. ll<>lM>iiiiir4' IhiikI Kiiiluay 4'oiii|»aii> rndoiiiikiiif;- K4'i'/.iir4> ol'laiKl iiii4l<>i> fi. fa. The defendants, bcin;.; indebted to the plaintiff in tho sum of X'lOOO, executed a bond to him, dcchuin^' tliiit for the purpose of securing the debt and interest they granted to him {inter hI'ki) the undertaking of the Company, and all moneys to arise from the sale of their lauds, with a con- dition that on failure of payment on a certain day, tho plain- tiff might, upon giving three months' notice, enter upon the receipt of tliepr(K;eedH of the sales, tolls, etc., and upon tiie absolute possession of the railway', etc., androimburHcliini- self the amount due, provided that "nothing therein should be held to limit the powers of sale or appropriation by the Company, of an}- of their lands, nor constitute a charge upon the same." Held, That this did not constitute an equitable mortgage on the lands of tho Company, and that judgment creditors of tho Company, without notice of thu bond, could not bo restrained by injunction from selling the lands under execution. Wichluim v. The N. B. nud Ciiimhi Land Companij. [S. C. Law R. 1 P. C. (51.; .1//. 17.1. Qucerc, If an equitable mortgage was complete, how it would be affected by a subsequent judgment and execution, Ihid. Sec Trusts. Abisoliite docd iiitoiidcd to operate as a iiioil^;ii^c. See Trusts. E QUI TV. Sec Trust. Mortgage. Practice in Equity. 1— Bill filed l»y Adinliilstiator against executor loi an account of estate— Wfo complaint in liloliiiic o( Administrator of estate— IVot keeping sepsiiiHf accounts— Exceptional circHinstances-Kigl«t '" call for an account. W. C. was the administrator of the>state of W.H., and previous to the year 1824 sold a considerable portion of EQUITY. 527 tlh' estate for payraont of debts : in that year partition was iii:i(le among tlio lieira of W. II. (tlio mother of W. C. being one) of tlioroniain(U>r of the estate. At that time W. C.'s iKotlur was a widow, residing with her son, and having a cousidcniblo proi)erty, both in her own right as one of tliu heirs of her fatlior, and also under the will of her husband. W. C. also had an equal share with his mother under his fatlu i".s will, of which he was solo executor, and ho had tho entire management and control of his mother's property, antl was lior coufulential advisor in all matters of business. For sevi'val years, regidar and full accounts were nuido up annually of tho recoii)t3 and expenditure by W. C. on ac- count of his mother, though it did not appi>ar that those accounts had been rendered to her ; but about tho year 1830 he ceased to keep any separate accounts of her estate. At this time W. C. was in receipt of a large ollicial income, and kept up a well-appointed household, of all tho com- forts of which his mother partook equally with him. In 181!^ she made a will, bequeathing all her personal estate to W. C, and devising her real estate to another relative. W. C. died without issue in 1851, before his mother, and consequently the bequest to him by lier will lapsed. A MlU'as fded by her administrator against his executors for an account of tho estate of W. H., which had come to the hands of ^V. C. as administrator ; and also for an ac- count of all moneys received by him as agent of his mother up to the time of his death. Held, Isl. That as no com- plaint had ever been made during the lifetime of W. C, itmi;,'ht be presumed that the heirs of W. H. wore satisfied vith his administration of the estate, before they executed 'lie deed of partition in 1824, and therefore his estate was liable to account. '2nd. That though under ordinary circumstances the fact of a fiduciary agent or trustee not keepin;,' separate accounts of the trust-moneys would bo regarded with -ispicion in a Court of Equity; this, from tbe peeuUar relation of W. C. and his mother, and the terms of atlection and confidence in which they had lived together ^as an exceptional case; and that, in the absence of any evidence tha' idvantage had been taken by him of his posi- 528 EQUITY. tion, and of the confidence reposed in liini, or that lie had kept his mother in ignorance of what was necessary to be known for her ])rotection, or of an}' information which would be likelv to induce her to ab.stain from nierf^i-i" ]\m' income in his, tlie abandonment of the separate acuount.s in 183G, acted on up to the death of W, C, put au end to all right on the part of his mother or her representative to call for an account of her estate. Botsfonl v. IJazai,oAlL 28. 1 a— Fxeciitor's sirroiiitts-liiiix'achiii^^ !iifrof'»n>«t- tAi\7iiUty ns stiH'U.lu>Ulev—K.nowlPA\iiv «f jstrciit - Trus.'.('<» liolilcr of'«»tock, ciititlod to iiKlcmiiiiy, A. died in 1853, having appointed B. his executor. B. proceeded to collect the assets of the estate, and invrsted part of them in bank stock in his own name, as executor, the dividends of wliich were credited to the estate from time to time ; but before the estate was fully settled, and before he had rendered any account of his administration, he died, leaving C. his executor. After this, in 18(5;3, the widow of A. obtained adminintration dc J)0)ii>i non on his estate, aud left the Province, appointing C. her agent ; who managed the estate of A., collected the remaining assets, aud re- ceived tho dividends from the bank stock, and paid or credited the amounts to the widow. A full inventory of the estate of A., shewing the bank .'.>ck and other invest- ments, was made under the direction of C. and died in the Probate Court, and a copy sent to the widow, to which she made no objection. In 1866, the widow and residuary legatees of A. returned to the Province for the purpose of of having the estate settled : they claimed to be entitle! to an account of Jj.'s administration, which C. said he could not furnish, but offered to produce B.'s bool>s for tiieir ex- amination. C. claimed a considerable sum from the estate forB.'s services as executor of A., wh'cli the widow ami legatees refused to allow. After a good deal of negotiatieii, an agrofment was entered into between the widow uiui the legatees of A. of the one part, and C. as executor oi B, on the other part, reciting all the facts and the claims on botb sides; that no accounts had been rendered by B., or EQUITY. 529 livC. as his executor, since his death ; that legal ([uestions mi'^lit hereafter arise as to the liability of B. as executor, which all parties were desirous of avoiding ; and in order to arrive at an immediate settlement of all questions aris- iii" out u'i the i.dministeration of the estate it was agreed i('((/(')' (iU(i) that all money, deeds, notes, bank stock, se- curities, l)Ooks, etc., belonging to the estate of A. should be dclivereil up by C. to the widow of A. at a certahi time ; and that the estate of B. and his heir.-^, etc., should be released and discharged from all liability in connection with the ad- ministration of A.'s estate. In pursuance of this agree- meent, C. delivered to the widow all the securities, certi- li'Mtes of bank stock, l;ooks, etc., belonging to A.'s estate, and she afterwards received the dividends of the bank stock, though the stock was not transferred to her in the books of the hank. In 1867 the bank suspended, and iiroceedings linviim Imviug been taken to wind up its affairs, under the Act '27 Vic. cap. 44, C. (as the liolder of llie shares) was placed on the list of contributories and compelled to pay STOOD as an assessment on the shares. The widow and Iciiatees having refused to pay this sum to C. and to in- (Itmuify him against any fnrtii^r calls on his shares, a bill was filed to compel them to do so, and to obtain a decree that the agreement was valid and binding. On the hoiiviug, the (Icfen.lants claimed to shew that the agreement was i'rau In- Ifut; that they were compelled to enter into it in ordei- to ^!et possession of the assets of the estate, and because they I'Otilii not get any accounts of the administration. Held, 1st. That r>.'s accounts as executor were not in issue, nnd that if the defendants wished to im[)each the agreement, they shouhl have filed a cross bill. 2nd. That the widow "I A. had the means of knowing her liability as a stock- hfiKlrr in tlie Bank, and was bound by the knowledge of ''• '• agent. ;}rd. Th{i,t C. only held the Bank stock as a trustee tor the widow, and was entitled to be indeumiiied for :uiy calls nifide upon him as the holder of the stock, under till' Act 27 Vic. cai). 44, l>ecree made against th(^ defeiul- iints according to the prayer of the bill. Botsford v. Cnme, ^••"*'( T. 1873. 530 EQUITY. 2— RoiiU'tly iit law— Suit lor spt'cilic |»VB-ronii:iiic'(> not iiiiiBiitiaiii:il>l4>. The defendants D. F. & S., entered into piirtnership in 1SG(5, for purchasing and selling shingles and clanboui'tls, J), resided in Fredericton, and the other defendiuits in lio.s- ton. D. was to purchase the shingles, etc., and shiptluiu to F. and S., who were to control the sales, aiul the pro- ceeds were to come to them : the capital to he furnished equally hy the parties, and the profit and loss to he equahv divided. J), being unable to furnish his share of the caiii- ttil, applied to the plaintiff in February, 18t)G, who ugreed to make advances to him on condition that he should ship sliingles, etc., to the plaintiff to secure him, D. agreeing (with tho assent of F. and S.,) to ship every alternate cargo to him for that purpose. The plaintiff claimed that tho money was advanced to all the defendants; hut F. and S. denii (I this, alleging that it was made to D. aloue, and that they did not require it, having sufficient means to fur- nish iheir share of the capital ; they also claimed that the amount to be advanced by the plaintiff was limited to $20,000, and that the shipments to him by D. were suili- cient to cover that sum. Ilidd, That even if the amount was not limited, the agreement gave tlii^ [uaintitf no lien on the partnership lumber ; that if there was a breach of the agreement, the plaintiff had a remedy therefor at law, and therefore he could not maintain a suit for the specilic per- fornumce of it. F()>j[i \. DowUn' ill (>(|Hity for spocifi*" perlormjuur Adoption o( :i^i'4*eiiiciit — BSolatioii of triisU'c and cciiiitiil quo trii»tt rroatod. M. being indebted to the plaintiff' for logs and lumber, and to others in various amounts, and being also largely indebted to ttie defendants, gave them a warrant of attor- ney to confess judgment, subject to a defeazauee, statiiy that it was given to secure the defendants in the uuiouat due them from M., and in all sums which they might pay under a certain agreement then nnido between them, hy this agreement the defendants undertooL; and agreed to pay EQUITY. 531 [inter (did,) by three instalments, all balances duo by M. on lofs and timber delivered to liim since a certain day, the amounts to be fixed by orders drawn by him on the defendants : the defendants have power to issue execution on the judgnieut forthwith, and sell all the real and per- sonal estate of M., and after paying all expenses, to retain the proceeds till the purpo'-'os of the agreement were satis- tied, and if any surplus aaincd, to pay the same to M. The plaintiff and M. liaVxi^,' settled the amount due [)lain- tiil for lumber, M. drew an order on the defendants for the amount, which order was presented to the defendants, and the first instalment paid to the plaintiff, and endorsed on the order. When the second instalment came due, the d '- tkdants refused to pay, because M.'s property, sold und.i- the judgment, fell short of what ho had repre.senfco 1, aud was insulUv;ient to pay the several amounts iT«entioned in the agreement. Held, 1st. That the plaintiff having as- sented to, and acted upon the agreement between tlie de- fendants and M., the relation of trustee and cc-Uiu ([ue fn/sf was thereby created. 2nd. Tliat the defendants were absolutely bound by the agreement to pay the plaintiff the amount stated in the order; and 3rd. That the plaintiti's had a remedy in equity for a specific performance of the agreement. Pichtnl v. The Centnd Bank, 5 .1/^. 472. 3-Doposit of policy of iiiNiiraiicc— :TIoi-tK'av'<' riy^ht— l^qiiitiiblu claim i»<;i>foct(Ml. iJefendant mortgaged a house to A. to secure a debt, and covenanted to insure a certain sum on the house, and, if required, to assign the policy to A. Defendant insured the house, but afterwards becoming indebted to R., and being pressed for payment, deposited the policy of insu- rance with B. as collateral security. B. had no notice of A.'s mortgage. On the 5th March, a few days after the deposit of the policy with B., the house was burnt. On the following day A. gave notice to the Insuranc(> Company ot his mortgage, and claimed the amount of the insurance: he also applied to the defendant for an order to the Insur- ance Comi)any to pay the amount, but the defendant de- 582 EQUITY. clined to give it, stating that he liad already appropriated tlie raoney to the payment of his debt to B. On the 21st March, B. presented the defendant's order on the Insurance Company for the amount of the insurance, and claimed payment. Held, That A., by giving notice to the Company of his equitable claim under the mortgage, had perfected his right to the insurance money, and had priority overB. notwithstanding the deposit of the policy with him. The Queen Insurance Co. v. Macphcvson, East. T. 1868. 4— I»i-opcrty tali(>ii subject to covoiisiBit— liuouJcd^c of paity— llqiiitabii' liyrlits— Specific pcilbiniaiire — Kcstiaiaiiiij;? i»y iitjH"<'iioii until iit of covciiitiits— ISciiiicdy at Ian' oiot oiistin^^ jiiri«<(lir> tioDi of cs«nieiit not applicitbic If a party takes property, with knowledge that the per- son through whom he claims has covenanted to use it in a particular way, he takes it subject to the equity created by that party ; and a specific [)erformance of the agreement will be enforced against him. llijan v. Lochhart, 1 Pikj. 127. The St. John Water Company, under the authority of their Act of Incorporation, 2 Wm. IV. cap. 20, covenanted with the owner of land, which they required to overflow, that they would build a bridge over the overtlowaye to en- able him and his assigns, etc., to pass from one part of his farm to the other, and would keep the bridge in repair so long as the overflowage continued. The bridge was built and kept in repair until all the rights and pro[)erty of the Company, subject to the outstanding liabilities, were vested in Commissioners (the defendants) by Act 18 Vic. eap. 38; saving to every person all rights and remedies in law or equity, anil all actions or suits pending, or thereafter to be l)ronght against the Company for or by reason of any mal- feasjince or misfeasance, or any act dorie or committed, or by reason of aiiy contract or agreement theretofore miide, which rights and remedies should continue as if the Act had not been passed. The defendants continued tfie over- flowage, but refused to keep the bridge in re;)air. The plaintiff having become the owner of the land, filed ii bill EQUITY. 533 for specific performance of the covenant, and to restrain the (lefenciants from overflowing bis land. Held, 1st. That the defendants, having tali 'n the property of the Water Company subject to the outstanding liabilities, were bound bv the covenant to keep the l)ridge in repair. 2nd. Thn t the reservation in the Act of rights and remedies against the Company only applied to actions pending, and rights of action accrued before the passing of the Act ; and not to a keacli of contract, or wrong done, by the Commissioners, though such contract had been entered into by the Com- pany. 3rd. That the plaintiff had a remedy in equity against the Commissioners for a specific performance of the covenant, and that they should be restrained by injunction from ovfitiowing his land until the bridge was put in a proper state of repair. 4th. That though the plaintiti" might have a remedy at law on the covenant, that did not ou&t the jurisdiction of equity, oth. That the mode of compensation for the overiiow^age having been agreed upon between the Company and the owner of the land, the sta- tutory remedy of assessment by a jury did not api)ly. Ii>/ii|>|>o*>iOtl to il>c iiicovporaietl — Pei-soiial liability— I'jHtiiiiate of work mot an sni.ii-d -:%ot afrcoted l»y <'oiiHijl«>ratioai of'iiiaiK'rw not iTl'oiTcd— (JoHciirroiit IC<'iue(lii>|>jectiioii to jiiri>«nit> An allegation in the bill, that the plaintiff had p"i'- EQUIIY, 535 chased the rights of two of the hvlvn, aud obtained con- veyance tlicreof, shows a sntlicieiit interest in the subject matter of til" snit. Coi/ v. Coi/, 1 JJaii. 177. M-Foi'c('l<>^iii'<' oriiii(>rt^::iy:<> aftei' death ol'iiiortyn^^nc. hi a suit for foreclosure of a uiortga .',iii-«;9i:isiii^ property williotit Iravo to l>id :il '•.".lli*. The plaintiff in a foreclosure suit may purchase the pro- perty at a sale under the decree, without having obtained 1. aw to hid at the sale. The want of such leave is only an ii'r,'i:alarity. f/^js/'/// v. Phaviiv. Iiisiiniiiri' ('(>)npaii)j, 6 All. 1'2*J. 11- FoiTiiosiii-e — lIoi-»y;aa:«i' liaviiiff no interest — ri:iiiitiii% nej^loct o* kno\vIe«l;fc— Costs. A mortj:;agor was made defendant ''n a foreclosure suit, appeared thereto and answered, disclaiming any interest in the property. On motion to dismiss the bill as ai^ainst the mortgagor — Held, That as the plaintiff either bi"\v nr had the means of knowing before commencing the suit, that the mortgagor had conveyed away his equity of Mlemption in the property, the mortgagor was entitled to I'.i^i costs. Wilson V. Jlonihronk nnont, and the ap- propriation of the payment by A., would be sullieient to re- lease a particular part of the mortgaged lands, it woukl not bind C. who was no party to i*. 3rd. That the sub- sequent partition of the land between B. and C, in ignor- ance by the latter of the agreement by which the portion of the land allotted to B, was to be released from tho mortgage, was a fraud upon C, and that such agreement would not be carried out for B.'s benefit. John-ibn v. McCartnt'tj and others, 1 Ilan. 220. 13— Ti'iistoe niKl n-stiii ncc to liiipoadi AKr<*' liavo Equity iiiiiNi (l» Equity'^— Liability of Kquitabie aud Bcnoiicial Owucr or Stock, to sopay calls paid by L(>;,'iil Owner \\ hose uauit; is placed ou List of Con- tributories under tliv Wiiadiu^ I'P Act, (1^64). C. F. A. and J. F. A. were executors of W. C. C. F. A. died, having appointed J. F. A. and H. B. A. his executors; J. F. A. also died before the affairs of W. C's. estate were wound up, having appointed H. B. A. and M. A. his execu- tors. After the death of J. F. A., E. 0., widow of W. C, became administratrix, cum testamento anntxo of W. t^^- EQUITY. 537 estate, louring the joint management of the estate by C. F. A. and J. F. A., as well as during the sole management of J. F. A., large sums of mono}-, the property of the estate, were collected and invested. The sum of i'3,570 9s. 5d., representing 140 shares, was invested in AVestmorlaud Bank stock. This stock stood in the books of the bank in the name of C. F. A. and J. F. A., executors. It was always treated as part of W. C's. estate. It was enume- rated as assets of the estates in the inventory iiled in the Probate Court by 11. B. A., then acting as agent of admin- istratrix, the receipt of a copy of which inventory she duly acknowledged. While this stock was yet good and selling above par, the representatives of the estate of W. C, on the one side, and the representatives of the estate of C. F. A. and J. F. A., on the other side, (difficulties having arisen between them), entered into an agreement for the settle- ment of all disputes and the avoidhig of legal questions regarding the administration of the estate by C. F. A. and •1. F. A., by which, among other things, the estates of C. F. A. and J. F. A. were released from liability regarding the administration of the estate of W. C, and the repre- sentatives of the estate of C. F. A. and J. F. A. undercook to transfer to E . C. all the property of the estate then in tbeii' hands. The books of accounts and sccuritie:-: were banded over. Among the rest was this Bank of W^stmor- bind stock, of which the certificates were handed over to E. C's. af^ent, but the transfer was not made on the Bank books. E. C's. agent at one time applied to H. B. A. to bave the transfer made, but IT. B. A. refused, on the I'vound that the President was in England and the trans- itr could not be made. This was on the 17th of January, I'^ijT. On the 21th of the same month E. C's. agent, on an order signed by H. B. A., received the dividend due by *'''is stock and placed it to the credit of W. C's. estate. No "tiier or subsinpient demand was made to have the stock transferred. In Alarch following the bank suspended pay- '"wit. In May a curator was ai)pointed under the Winding up Act, (1861). The estates of C. F. A. and J. F. A. were placid upon the list of contributories and were obliged to 538 EQUITY. pay tho amount of a call of fifty per cent., (the amount l)eing $7000). The plaintiffs (tho representatives and par- ties interested in the estates of C. F. A. and J. F. A.,) called upon E. C, administratrix of W. C's. estate, and the other defendants as the parties interested in W. C's. estate to repay the $7000 and to indemnify them against further calls. The defendants refused, and this suit was brought. The defendants alleged, that the agreement was not vahd or binding, that there was no consideration for it, and that it was entered into under circumstances that rendered it fraudulent and void and of no effect, but did not file a cross bill to set it aside. On the hearing in the Court below, evidence regarding the administration of W. C's. estate by C. F. A. and J. F. A. that was offered for the purpose of impeaching the agreement, was received. Tlahl, (by Ritcnie, C. J., and Fisher, J., Westmore, J., (Jisscii- tiente,) reversing the judgment of the Court below, that tho agreement could not be impeached in this suit without filing a cross bill, and that the evidence regarding the administration of the estate was improperly received. That the rule that " he who would have equity must do equity," must be restricted to the matter in which tlie assistance of the Court is asked. That this agreement was valid and conclusive against the defendants in this suit, and that E. C, administratrix, &c., of W. C's. estate, being equitable and beneficial owmr of the stock in question, should repay the plaintitl's the sum so paid by them on account of the stock, and indem- nify them against further calls. Botsford et ai, v. Crm' et al., 1 P. d- B. 154. 1 1— Ansn''cr in Equity— Practice. An objection that a suit is defective for want of parties, cannot be taken on the argument of exceptions to the de- fendant's answer. Hendricks v. Tlallet, 1 Ilaii. 185. In answering interrogatories, the defendant must con- ^ess or traverse the substance of each charge in the bill. Particular charges must be answered particularly and pre- cisely, and not in a general manner. Ibid. m u EQUITY. 539 Wlici'' defendant is interrogated as to the receipt of particular sums of money, it is not sufficient to refer to an account annexed to his answer, as shewing what he had received, unless he states that it is the best account ho can give. Ibid. If he states that an account annexed to his answer, contains all the information he is able to give on a par- ticular question, it is sufficient; though it was his duty to have kept a more particular account. Und. Defendant is bound to answta- an interrogatory if it is pertinent to the case made by the bill, though it is not founded on any specific charge in the bill : and Semhle, That lie slinuld answer an interrogatory whether it is material or not. Il'ld. Defendant, filling the offices of trustee and executor, is bound to answer an interrogatory, whether his accounts distinguish the receipts and charges as trustee, from those as executor. It is not sufficient to refer the plaintiff to the accounts. Ibid. Defendant is bound to answer as to his own transac- tions, and, if necessary to obtain information to <3nable bim to do so; but he is not bound to seek information as to transactions not his own, and of matters equally acces- Mble to the plaintiff. Ibid. As a general rule, if defendant professes to answer, he must do so fully; and he cannot protect himself from tbe consequences of an insufficient ar.swer, by objecting tbat the interrogatory is not warranted by the bill, or that tbe plaintiff has no equity. Ibid. An answer which states a conclusion of law, is insuf- ticient. Ibid. When an answer denies or ignores a matter inquired fifter, it must be as to the defendant's knowledge, informa- tion or belief. Ibid. Defendant may be interrogated as to the contents of \vritings, decrees, etc. Ibid. 540 EQUITY OF KEDEMPTTON. Whoro the discovery woulil be material to tlio case made and tlio relief prayed l)y the bill, a defendant may lie intcrrof;ated as to the amount of his projuTty, and his ability to pay; but he is not bound to answer a uuto hypo- thetical intcrroijatory. Ihid. 15— TiiiK; allowed to an«i\voi*. A defendant is entitled to a month to answer after filiri" of the bill ; and notice of motion to take the bill pro con- feaso cannot i)e f^iven till the expiration of that tiaie, though a copy of the bill and interrogatories may have been served on the defendant more than a month before the notice. Gndfmj v. Ogh'shy, 1 JIan. 231. 16— AiiioiKliiicnt— Doittli of Dcfviidaiit. Where one o' the persons named as defendants in u suit had died before the summons issued, the pleadings were amended by striking out his name, and the answer was re-sworn. Bijei-s v. TLirrkon, 1 Jinn. 283. 17— Adding PluoiitiiK-Fiii'tlici' allowaai'i^c of time to AllMWt*!'. Where an amendment was made in a foreclosure suit, by adding plaintiffs after the liliug of the bill, tlie defentl- ant was allowed a month to answer after service of the order to amend, and of a coi)y of the amended bill. Wiiijk* V. EviuiHon, i l[i'M lfi(>r<>iT(><-f' of, by iTIoi'isfase— Etiect. See Mortgage 17. EllROll (WRIT OF. 5-41 AliMiliiK' <'oiiv<'yaiM'«»-S«'«'iirHy lor D«'l»i-S»l<' with 4>oii«<4>iit «r d4>l»tOI'. ■\Vliir>' a pGi-rton holds tho property of another by an ahsolutf conveyance, but really as security for a debt, and lio sells it with the const mt of the debtor, the latter cannot altenviUHU claim an equity of redemption against the pur- chaser, even though he was aware of the original trust. SiithcrhiiKl V. Miu'han, 3 I'mj. 289. EiccliiM-iil !>) Iiolder of IRqiiity of ItiMlciiiptioii— l>c- X'viu'v l>y Toiisiiit of i?Iort^stK<'(s See Ejectment II., 11. Doc dcni. Sinitlt v. Suarr. EKKOK (WUIT or). 1-lf il li<">« for not awarding jiKlj^iiieiit iioii obt^taiitc veroilicto. Ijiuerc, Whether a writ of error lies for not awarding judgment imn obstante rc/Tf/it'fo, particularly where the Court below mi.u'lit have awarded a rejdeader ; or whether the Court of Error may award such judgment noii o])S. veredicto ? Kiinirnr v. Galhujher, 1 Kerr 424. 'i -lliHtsik<> ill riili'y ol' wstiTaiit of Attorney on roll — Takiii^f advaiitag'c ol. A mistake in the entry of the warrant of attorney oa the roll, and in the Ineipitur of the judgment in stating the action to be '" trespass on the case," instead of "debt," cannot be taken advantage of on tho gjueral asrfiga.nent of errors. Ib'ul. 3-Ai>|>li<'iitioii to aiiicii«1, pending writ of error. Pending a writ of error, the Supreme Court may allow iippliciition to be made to the Court below to amend formal errors on the record, and may suspend judgment in the meantime. This was allowed where the award of the xmni and the day of trial were left blank in the record below. UM. 4 -Obji>(>tioii iiiu«^t be taken in Court out of which will i!»'S— Kui4> to :i««<^i^;ii errors ih a foiir day i-iil(>— Doiililc costs— D«'lay in assi^^iiiii^ eri The rule to the plaintiff in error to assign errors, is a four day rule — the English practice not having been aitere;! by rulf of this Court. G'llhcrt v. Sdi/rc, 2 jIU. 512. If judgment is alHrmed after error assigned, the d.- fendant in error is entitled to double costs, under the Stati;te 13 Car. 11. , cap. 2, sec. 10. Ibid. Qiucre, Whether the defendant is entitled to .such costs where the writ of error is non prosscd. Ihid. A plaintifl" in error not having assigned errors, the de- fendant, after the lapse of nearly nine years, issued iind served on the })laintiff in error scire facias qii. cccnifioncm non, and a rule to assign errors. The ]^]aintiff not liaving assigned errors, the defendant signed judgment i-n the. s'-cc facia?. Court refused to set aside this judgment after the expiration of a term, but granted a rule to shew cause why the plaintiff in error should not be allowed to assif^'ii errors in l)ar of judgment of )t()}i pros. Ihid. 6— From \% liat C'oiii't should issue. A writ of error to remove a cause from the Court of Common Ph as into this Court should issue out of the Court of Chancery ; and if issued out of this Court it is a nullity. Mills v. Vail, 4 .1^/. 239. 7— niiii;!^ of— Tiiiio. An assignment of errors cannot be filed till after the r?turn of the writ of error ; and a scire facias ad "idicndum err. ires issued before the retuvu of the writ of error will be set aside for irregularity. Wet more v. Lecii, 4 .1//. i'502. §— Oil jiid^iiKiit o( Interior <'OMrt— Matter «'\ i'o<'es>« — .llea!!«ni'e of Daniag'e:^. See Damages I. 12. 1 lti;;lit \v> i^Mte fi. fa. after eseajie. The recovery of judgment in an action against the Slieritl' for an escape, unless it produces satisfaction, does not destroy the plaintiff's remedy against the del)tor. After an escape from execution, the judgment creditor may issue nfi.fa, against the debtor's propertv. Kelly v. IVil- m, 2 .1//. 475. 'i-A|»|»li<'alioii (ly hail t4» render after eseape. If a debtor escapes from the limits, and his l)ail apply to be relieved on rendering him to jail, under the Act 13 Mc. cap. BO, such relief will only be granted on condition 01 his being rendered to the jail whence he escaped. Peters V. Perlcij, 2 All. 585. fl-Daiiiaji^e -Aitaeliuie^it Tor non-piiyiiient ol eosts is in tlie nature of mesne proeess. An attachment for non-payment of costs is in the nature of mesne process, and the Sheriff is not liable for tilt escape of a person in custody on such process, unless t'-e phuntiir has sustained actual damage or delay in con- se-iueuce of the escape. Atkinson v. Mitchell, 6 ill. 345. 544 ESTOPPEL. 4— Slif'i'iH— JTiifiiiflcatioii— Order for disclisir^'o. The production of ai: order of a Judge of a Coimtv Court, valid on its face for the discharge of a delator, uudr the 1 Piev. Stat. cap. 124, is a justification to the Sheriff in an action for the escape of the dehtor ; and he is not Ijouud to prove thereguhirity of the previous proceediuf's. Clcmentson v. CootnhcH, East. T. 1871. Pri^4>iDrs delivered over l»y old ^iierift lo now - 4;iisir;;eii)»le lor e.>ie:i|»e. See Sheriff 13. Debt -Action of, against Siierifl for escape, not uumi taiiiable. S'ic British Statutes 3. Action on limit ImmkI for esi'ape— Assignment of (ir«it bond— Taking sec<»nd bond. ,SV(' I3ond II. 9. Sec Deed I. 33. Sec Deed. Mortgage. Landlord and Teiinnt. Tenant at will. ESTOPPEL. I. By Acts — Conduct — Admissions. II. Ac'i.tUIESCEXCE. III. Opening up of Estoppel. IV. jMiscellaneous. I. By Acts — Conduct — Admissions. I -Leasin;; lueinises— Setting: np title in a tliini |)ci-*iOU utteruards. Ejectment. By indenture bearing datf 1st May, 182!1, the land in question was leased l>y the lessor of the plain- tiff to the defendant for two years, at the rent of £()\ the ESCUO'W. ESTATE. ESTOITEL. 545 (Ufdidant remained iu possession S( oral years after the txpiration of the lease, hut there was no proof of payment of rent, llchi, That notwithstanding this, and that the defendant had not heen actually let into possession hy the lessor of the plaintiff, yet he was estopped from denying liis I'ijjlit to lease, and from sotting up a title in a third lei'son ut the time of making the lease, under whom the defendant was entitled to claim, there being no proof of fniiidiilt'iit misrepresentation or concealment to mislead the ''' Mulant when he accepted the lease. Doc dcm. Sdiuls V. VhiHips, 1 Kerr 80. 2-Uiiiiiiiii^ hoiiiKlary liuo«« by Sui-veyoi* niiitiiaiiy iiioscti— Acqiiiesfciic*'. Where a boundary line has been run between adjoining [Toprietors of land by a surveyor, mutually employed by them, and acted upon for a numbtr of j^ears, and improve- ment; VA'i subsequent conveyances made according thereto. Hfhl, ilwx: <'he parties were bound by if, although it proved to have been run very incorrectly, a d to deviate materially from the description of the boundaries in the title deeds under which the parties were holding, and to give the defendant 150 instead of 100 acres of land. Doe dcm. C'urv.McCidlnch, 1 Kerr im. S-lfo<'i)ting l(>:it. Where B., being in possession of land, accepted a lease of the same from A., who claimed title thoreto. Held, That B., was thereby estopi)ed from denying A.'s right to the possession at the termination of the lease, no other person having interfered with B.'s holdin^^ under the lease, and no frnud or deception having been practised by A. in order to induce B. to accep: the same. Doe dcm. Souds V. PkilUps, 1 Kerr 533. l-A|rr(>oiii4'iii ami |»i<>af«'i/ V, Lmcaster Mill Company, 1 Kerr 377. 646 ESTOPPEL. 5— PayiiK'ul of Kent— Oiit§tuii<1iii;? title. The plaintiff being in possession oi land, a grant of it was made by the Crow)i to the Eector, Churchwardens and Vestry of W., of which the Piector informed tho plaintiff who agreed to hold the land from the Piector at an annual rent, and paid the rent t.vo or three years. Tlehl, That the i)laintiff could not dispute the Eector's title by shewing a previous grant oi the same land to B., through whom he did not profess to claim. IIiKjhcs v. Holmes, 1 .1//. 12. « After a conveyance of land made by a i)erson of unsomid mind, a tenant for years, of the land ))ai(l, rent to the grantee. Held, After tho death of the tenant that his widow was estopped by the payment of rent, from denyin" the title of the grantee. Doe don. Jl'ickmnii v. Kinff, 1 Han. 330. ?^— Af?reeiiient iiiidei- Seal— Pnyiiieiit— Evpluiialiuii ot delivery of tfoodM. B}' agreement,, under seal, between the plaintiff and B., the latter agreed to purchase a vessel, then building by the plaintiff, and to pay him a certain sum per ton when the vessel was launched, lii5l,-400 which had been advanced to the plaintiff, to be deducted from the purchase mouty. In an action on the agreement for the price of the vessel, the defendant under notice of set-off, claimed payment for goods delivered to the plaintiff, subsequent to the agree- ment. Held, That the plaintiff was not estopped by the agreement from showing, in answer to the set-off, that the goods were not delivered as an additional payment on account of the vessel, or as a sale, but on account of the $1,400, which sum was not paid at the date of tho agree- ment. BisJiap V. llohiiison und others, Evnitors of C.E. Bishop, I ][(in. 68. S— Fntei-iii^ into reeomiizairce— fJsinnot pleail IVmihIh* lent repreMeikiatioii as ti>. The sureties in a recognizance entered into under the Pev. Stat. cap. 98, " Of Controverted Elections," cauuot plead that they entered into it by a fnuidulciit representa- ESTOPPEL. 647 tion of the n.ature. of it, believing it to be tbe obligation of tlie principal only. Tlic Queen v. Sj^drrmv aiitl oihern, 1 //'(;(. 113. If the recognizance was obtained by fraud, the sureties slioulil apply to the Court to vacate it; but while it stands ag a record, they are estopped from denying the truth of it, Ihhl (»-FiiiTlisisin5f at Shoviirs s'.\\v. Whore property claimed by the plaintiff is seized by an txecntion against A., and the plaintiff forbids the sale, he is not, by purchasing at the Sheriff's sale, estopped from denying it was A.'s property. Pelton v. Temple, 1 llnu. 275. IO-It<'|)r<'seiitntioii«i— Psirty artiii^^ upon. Where a party makes a representation to another, with I'lforence to the title to lands, which induces him to alter liis previous position and advance upon them, he is ^•^toppLMl from denying the truth of such representation. So' No, 27. ll-Ado|»tioii of Devise Assenting to a devise and going into possession of land iiiler the will, estops parties from selting up a new title ill other party. Ihid. »'2-Giviii^ Dc<>4l-Titlo at timo. Ill ejectment against a mortgagor by a purchaser of the i'luity of redemption under a warranty deed, the defendant \i estopped from showin;; that he had no title when he giive thi' deed ; nor can he set up the title of the mortgagee ill I'ar of the action. Doe v. Potver, 1 .1//. 271. '•* In ejectment by mortgagee against mortgagor, tf»whom the land had been granted hy the Crown, the de- Imdant proposed to show that tlie land was ^v. id for by Ills son, who occupied it as owner till his death. Held, I't That the mortgagor was estopped by his deed from ; !}'ns that he had no title. 2nd. That such evidence was ''•'"Imissible on behalf of the son's widow, who defended '''fa-tion jointly with the mortgagor. Doe \. McJhnald, 1.1'U73. 648 ^.STOPPEL. Qiuere, Whether an estoppel which binds one flefeiulant will bind another, because he has joined in the con di* rule, Ihid. 14— Ai<>ii«ii not iiisifle in conntu'tioii wiiii iii:itt(>i' oi' action. Tlie admissions of a party made to a stranger to the suit, are not couclusive upon him as an e.^toppel. Thus where the [daintiff stated to R. that properly in liis pos- session bel mged to his brother, and thereupon issuedan execution ;;nd seized the property, for which the plaiiititf brought!! spass. //('/(/, That as the statements to R. were not made in connection with the subject of the action, thi^v were not conchisivo on the plaintiff. Murnni v. Johnstnii, 1 All. 409. 15— f'oi-pog'iifion entering' into conli-iict. A ]\[unicipal Corporation witli certain defmed powers, is not by entering into a contract under seal, estopped from shewing its incapacity to make such a contract, Jmiiicsoii V. Tlie Citij oj Frcdcricton, 2 All. VlS. 16— AMKvnt to nioi t^a^e of irattic. The plaintiffs, living with their father, assented to his mortgaging and delivering catth^ to the defendant, as security for a debt duf3 from him. Hell, in trover agaiust the defendant. That the plaintiffs were estopped from set- ting u^' title in the cattle. Li/on. v. Perkins, 2 .1/7. ^'5, IV— Fnrt'iiase money in deed— K«MH«ij>( of. Qncere, Whether one who has conveyed land and ac- knowledged in the deed the recei[)t of the purcliasi money, can recover a balance unpaid, on an admission by the pui'- chaser that he owes it. McAllister v, Duii, 4 ill. 37. IS— t"onvcyan«^e— Title after aeqnired. ' . conveyed to the defendant by deed poll of bargain and sale, land of which he had neither title norpossessiou. but he afterwards acquired a title, which was pur(diased by the plaintiff at Sherilfs sale, without notice of the prior ESTOPPEL. 549 convevanoo. llfl'l, 1st. That tho (lefendiint had no estate livestrppel. ^nd. That the phiintiff, not claiming under, orivi'oj^niziiiK the deed to the defendant, was not estopped as a privy in estate with S. from setting up the legal title ffliicli S. luul acquired since the conveyance to the de- fendant. Qiuerc, Whether a deed poll will create an estate by tstoppel. Doc w Wc'tniorc, SAIL 1-10. |f)-Lir«'iis<'— Dispuliuif lillr- S>iK|»i-oviii;; li<'<>ii<«o. lu trespass, the plaintitl" proved that the defendant had gone on the land by his permission, and afterwards dis- lutedliis title. Held, That the defendant was not estoi)[;y— Third party. hiejictment against A. and B., the plaintiff proved pos- =tssinuof the land inlB27 ; that in 1885 he had ejected A. ; tlat in 1848 B. had leased the land from him for a year and [iiidrent, and that A. re-took possession immediately after i'lhij:! ejected. 7/t'W, That B. was estopped by the lease irnn disiiuting the plaintiffs title, but that A. was not estopped, and might shew title in a third person. Doe v. Vmni, 3 .1//. 433. After foreclosaro, a stranger to the mortgage may dis- pute the titl(! of the mortgagor. IhhJ. il-laiidloid :umJ tciiaiil— ltopr(>s<>iitatioii of title. The (lefemlant obiained possession of land from the I'lamtitrs tenant, by representing that he had tlus title to u, and threatening to eject the tenant. Held, in an action ''f tjdtment by the landlord, That the defendant was "toppi-d from disputing his title, and setting up an ad- •'-rse title in himself. Ihw. v. FMcy, 3 All. AH\). -'^ >foii;j5jye till4. <„n«.^,s«r— lf;iioraiico o! prior iiiorl- ''lit' D. P. having mortgaged the premises in question 660 ESTOPPEL. to the lessor of the plaintiff, after which the Church cor- poration, claiming the premises by a Crown grant, brought ejectment against B. K., who, about being evicted, com- promised, and took a lease from the corporation, and tlun mortgaged such leasehold premises to one J. B., and J. B, mortgaged the same to the defendant, who entered ; and while so in possession of part of the premises admitted that he had gone in under D. P., but referred to his mortf'a','i. from J. B., without any apparent knowledge of the mort- gage from D. P. to the lessor. Held, Tliat he was not estopped from contesting the mortgage title of the lessor. Doc don. Eels v. Ganiett, 3 Kerr 535. 23— Coiiii«!i(>l a client's skill as a surgeon, he cannot afterwards object on a motion for a new trial, that there was no evidence tlmt he was a surgeon. Kelly v. Dow, 4 All. 435. tice Evidence I. (Admissions.) 24— A;,fi'4'eiiieiil to iiidoiiiiiify ii;;niii*4t los<»— Acqiii' csceiice of plaiiitill witli (loreiiclaiit. Plaintiff purchased timber from J., which was seizil under an execution issued b}' the defendant against J. An action having been brought by J. against the plaintitl, fur the price of the timber, it was agreed between the plaintiii' and def ndant that the latter should indemnify the formtr against all loss, in case J, recovered in the action agaiD:>t him, which was defended on the ground that the timber was rightfully seized under the execution. J. recovered iu the action, and the defendant paid the amount of the judg- ment. Held, That the plaintiff was estopped from after wards setting up a right to the timber against the defend- ant. Crocker v. Hutchison, 5 All. 139. 25— Adiiii<>i!>iioii of execution of bond. To a scire facais on a Crown bond, the defendant pleadtd nan estjactum. Held, That evidence of an admission by him that it was his bond was not an estoppel ; that lii ESTOPPEL. 551 mi"lit give evidence to prove that the supposed signature of one of the snhscril)ing witnesses was a forgery ; and tluit it wiis a (piestion for the jury upon tlie issue raised, whether tlie defendants had executed the bond or not. Ji(v/, V. Uiihcrstoii, (') All. 113. •i6-!»lH'rillN r4>tiiiii— Piii'tif'iilai' action. A Sheriff's return to an execution is only an estoppel in the particular action in which the execution issued. M'ilhrw IIVWo//,2 ILm. 188. ■.>7-U4>l>i-<>soiitatioii—Titl<;— Party Iciidiii^^ iiioiioy on fiiitli of r<'|>rc«i«ciitatioii. S. B. being in possession of a tract of 300 acres of land, made a will devising 150 acres thereof to his son Robert, and 75 acres to his sons William and Thomas exclusively : the will was proved, Robert being one of the executors, and the three sons divided the land according to the will. Thomas afterwards applied to one M. to borrow money on the seeyvity of his portion of the land, and the three brothers then pointed out to M. their respective portions of the land, telhng him that they held it under their father's will, and referring him to the County Records in order to see the will, and satisfy himself as to the title. In couse- 'liiuuce of this, M. examined the will, and finding the pro- perty devised as they had represented to him, lent money to Thomas on a mortgage of his 75 acres. Held, That Kobert and William, having acted under the will, and having by their representations induced M. to lend money to Thomas, were estopped from denying their father's title to the land, or that Thomas had a title under the will to the To acres ; and that they could not, in an action of (jectment by the assignee of M.'s mortgage, set up title in themselves under a deed from the heirs of a third per- son to whom the land had been granted. Doe dcm. Arm- ^fi''»iii\. Bridges, Mich. T. 18G9. {Sec 1 Han. 490.) <'iviii5f «on(t>ssioii— Costs. 'S't'e Cognovit 1. 5o-2 ESTOITEL. 'i§— .Iii(l;;iii4'iit— Fraud. J. S., exucutor of the estate of A. S., gave a confession of judgment in a suit In-onglit against liim by the trustues of hiiusolf as an absconding debtor. On an apphcution l)eing then made by hini to a Judge of Probates for a license to sell the real estate, the latter decided that the judgment was obtained l)y fraud, and refused to grant a license. Held, That the judgment was not conclusive, aiiil fraud being shewn, the judge rightly decided to refuse the aj)plication. Ex parte Simpson, 2 Prnj. l-i2. 20- IScplcviii— l)4>r<-iii-4>iit:ilioii. In replevin plaintiff may shew that defendant by liis acts is estopped from denying that the property in (jues- tion is the plaintiff's ; and if the alleged estoppel is in ji-z/v, it may be relied on in evidence without being pleaded. A mere representation of a hict will not amount to an estop[)el unless it was made with the intention of inducing another party to act upon it, and he does act upon it and alter his position. Ilcgan v. Fredericton Boom Co., 2 P. d' B. li',5. 30- dJf IVreiU'c to wi-itiii^'— Iiidt'iitiii'C. A\'iiere a a party joins in an indenture which refers to another instrument approving of it, and treating it as a valid writing, he is thereby estopped from afterwards dis- puting the validity of the instrument so referred to. Broun V. Moore, 2 Ptig. 407. Party accepting lease asitl entei'iai^ tinder it iiiid <:oii- tiiiiiiiiju;^ in s»o*s!sest4>i>|>eiUiii;: tiiat les«)Oi' had no title to lea!>»e. See "Will. K> app v. hliKj. Aj^i'tu'niejif nia«> oil bookM of'arcoiiiit. .S't't' Evidence V. 11, 12. Smith v. Andreics. Ihnjinond V. Cnmmhuj. twsv of levy by 8li<>i-ili. Sec Execution I. Brooks v. Ihdmer. Slieniii^^tille to Iniid. Sc6 Award. Olker v. Elliott. II. Acquiescence. l-Of .liumiiK'iit Debtor ill ^licrifl's sale — Titio by ofxtoppol not g;ivc>ii. The acquiescence of the judgment debtor in a Slierift's sale, and subsequent possession of the land by the pur- chaser short of twenty years, though presumptive evidence that all the necessary proceedings have been taken, will not give a title to the purchaser by estoppel. Doc v. Ili:m, 3 All. 87. 'I III snic ol l:ui«1 — Ag[i'cciiiciit as to division line. The plaintiff claimed fifty acres of land under a deed in fee from his father J. B. in 1822, of a tract of 400 acres, which deed was subject to a condition that J. B. should receive and enjoy all the profits and emoluments accruing from the land during his life. J. B., in order to pay a debt, about two years after the conveyance to the plaintiff, and with his consent, caused the fifty acres to be sold by the Sheriff ; the plaintiff bid at the sale, and after- wards agreed with the purchaser upon a division line between that and the remainder of the land. There was no proof of any judgment or execution against J. B., or of any advertisement by the Sheriff under which the land was sold. Held, That if the plaintiff had a present estate ii. ^He land at the time of the Sheriff's sale, his acquies- cence n such sale would not divest him of his estate. lJ'>c V. Baxter. 3 All. 232. Qmre, Whether the plaintiff took an estate in presenti IMAGE EVALUATION TEST TARGET (MT-3) /. i/.A ^ 1.0 ^1^ lif I.I ■ia £; us s«.l IL25 III 1.4 2.2 1.8 1.6 Photographic Sciences Corporation iV V ^^ <> S* ^\'^\ ■^>. 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 toppel by recor«l iiiiist be pleaded if liirre it. an opportunity or doing: so, otherwise tiio triiih may be sliewn. Weldon v. Wcldou, 2 Han. 188. !S!—An estoppel arising^ from an adniissioii in a coii« veyancc of land of the receipts of the piirclia«>(> money, is opened by a bond from the piircliai^ri- to the vendor conditioned to pay such •iiiii for the property as arbitrators should detcniiiiic, Coran v. Whcten, All. 293. IV. Miscellaneous. 1— Judgement against several— Non-service of |>ro<>(>*««> upon one— No knowledge of suit— JiidgeS order setting: aside arrest in reply to jiidpiiciii re- covered. A judgment was obtained against A. and two others, without service of process on A., or his having any knowl- edge of the suit. (An attorney retained by the other defendants having appeared for A. also.) He was after- wards arrested on a ca. sa. issued on the judgment, aud was discharged by a Judge's order on an affidavit denying knowledge of the suit and of any authority to the attorney to appear for him. Held, in an action for false imprison- ment against the plaintiff in that suit, That A. was not estopped by the judgment from denying his liability ; but that in reply to the plea of Judgment recovered, he might shew the Judge's order setting aside the arrest. Salis v. Ferguson, Hil. T. 1861, 5 All. 110. ».|ii« ESTOPPEL. 555 l-A pai'iy relj'ing on a Judginciit recovered as an e«»topi>ol i>*Miic .upon it. Where a judgment is not pleaded as an estoppel, but the tacts relied on are stated in a notice of defence given under the Act 13 Vic. cap. 32, it is open to the party to find the truth of the facts on which the plaintiff relies as an answer to the judgment and execution. Ibid. •i-Jii(lg:iiieiit on scire facias. A judgment on scin; facais in proceedings in bastardy, under 1 Itev. Stat. cap. 57, is conclusive while it stands, and the defendant cannot object that the amount of costs is excessive. Rifi. v. Cnrson, Hil. T. 1866. 3-Jiidf;iiieiit in deronded canse— FiiinK papers— notion to set aside— Defendant estopped from tiiiiiiiK advantai^e of papers not being liied.^ L''iwt V. Sedye, 1 All. 35. 4-Bail. Quo re, Whether an application by bail^for relief, under 1 Rev. Stat. cap. 124, estops them from afterwards apply- ing to defend on the merits. See liippey v. Austin, 4 AIL 77. •'S-Billioii-3 payable in five years, without security. Held, in an action brought by the plaintiff against a creditor of B., who had seized the property under an execution. That the value of the plaintiff's notes in the market, and his prob- able means of paying them, was relevant testimony to show that the transfer was fraudulent, and made to defraud B.'s creditors. Held, also, That entries in B.'s books, relative to the property, though made by his clerks, might be re- 560 EVIDENCE. ferred to by him on cross-examination, and by his clerks on examination in chief by the defendant, in order to shew the value of his property and the state of his business at the time of the transfer. Lawton v. Tarratt, 4 All. 1. In order to estabUsh fraud in the transfer, declarations and admissions by B., both before and after the transfer as to the general state of his business and the value of the property transferred, are admissible in evidence on the part of the defendant. Ilrid. The reasons for objecting to such evidence where its ad- missibility is doubtful, are much diminished by the Act 19 Vic. c. 41, allowing the parties to testify. Ibid. 13— liisiirnnce— Verbal declarations of owner or ves- sel as to part ownership. In an action upon a policy of insurance for the loss of a vessel, the verbal declarations of the plaintiff, the sole reg- istered owner, that another person a foreigner was part owner, are not sufficient to disprove the allegation of in- terest in the plaintiff, who had obtained the register upon his own declaration, and acted as owner in procuring the insurance, and in the other aflairs of the vessel. Watmi V. Summers, 2A'e/T62. 16— Ejectniciit— Examination in Bankrupt Coiirt-Ac- knowledirinent of title. Plaintiff in ejectment relied upon a declaration made by the defendant in his examination in the Bankrupt Court, that the land in dispute had belonged to C, who conveyed it to the plaintiff, with his (defendant's) consent. Udd, Not to be such an acknowledgment of title in the plaintiff as to prevent the operation of the Statute of Limitations. Doe V. Taylor, 4 All. 165. 17— Statements in bill in Equity. The statements in a bill in Equity, under oath are evidence against the party filing it, in an action at law. Doe dem Palmer v. Ross, 5 All. 346. (I EVIDENCE. 561 nblo by rircuiiistniirr**. .sv,' Consideration 8. l9-Tre*>|»n«t«t—Po»i«c«Mioii— Con vernation. The defendant in an action of trespass justified under A., and in order to show title in hira, offered evidence of a conversation between A. and B. — not made upon the land, but several miles distant from it — in which A. gave B. per- mission to build a mill on the land in dispute. B. built the mill more than twenty years before the action, but did not further recognise A's right to the land. Held, That this was not sufticient evidence of A', possession, and that the justification was not proved. White v. Smlta, 4 All. W 'iO-Declaration of iiiciiiber«« orCoininittcc— AKc>nts. In an action against the Corporation of St. John for negligence in constructing a sev/er, whereby plaintiff's land was overflowed, declarations of Aldermen, members of the Corporation, relative to the sewer are not evidence against the defendants; but declarations of members of a com- mittee appointed by the Corporation to superintend the con- struction of the sewer, made while the work was in pro- gress, and relative thereto, are evidence — being tlie decla- rations of an agent relative to a matter within his authority. Riky V. The Mayor, etc., of St. John, 6 All. 264. il-Boiiiidai'ies ot land— Declaration must be made while party in possession— Or ay^ainst interest— Or pri%'ity shewn. The declaration of a pexson as to the boundary of land is not evidence, unless it is made while he is in possession of the land, and is against his interest, or, unless there is privity between him and the person against whom his de- claration is otiered. Sartall v. Scott, 6 All. 166. 91 a-Boinidaries— Declarations by person in posses- sion. Declarations respecting the boundaries of land by a per- son in possession, and under whom the defendant claims^ m A ll li m M ■ li . £62 EVIDENCE. are evidence against him in an action in which the bound- aries of the same land are in dispute. Nilea v. Burke, 1 Piuj. 237. 92 While the Crown is the owner of land it may, by its declarations, explain or control a previous grant, and a party claiming under a grant, subsequent to such declarations may be bound thereby. Carter v. Saundm, 6 All. 147. See Crown Grant. 93— ActJoii aKniiiKt KhoriflT— Taking; goo«1*« on o\orii> tioii— Dcelarntioiis of third pei'<»on as to tniiitircr. In an action against a Sheriff for taking goods under an execution against P., which the plaintiff claimed under a previous assignment made to him by P. in payment of a debt, declarations of P.'s son, in whose possession the plaintiff had left the goods, as to the circumstances of the transfer, are not evidence against the plaintiff ; though the fact of such possession is proper for the consideration of the jury in determining the hoia fides of the transfer. Doak V. Johnson, 1 Kerr 319. 34— Action tor lVa{(cs— Evidence— Recognition ot piaiiititl^i^ right to give orders— Oiilcini chnracirr —Company. In an action for wages as Secretary of an incorporated Company, the plaintiff relied on the defendant's having used and paid for goods ordered by him, and having paid for work done for their benefit also by his direction- Before the goods were ordered, the defendants had notified the plaintiff that he was not the Secretary of the Company. Held, That the payment by the Company for the work and goods was not a recognition of the plaintiff's right to give the orders, or an acknowledgment that he was the Secre- tary of the Company. Ansley v. Albert Mining Company, 5 All. 391. 35— Declarations ol party having title to land— Adverse Possession. Declarations by a party having the documentary title to land, made after the lapse of sufficient time to give imother title by possession are not admissible to cut down EVIDENCE. 668 the latter'8 title. Declarations of a party adverse to his title, are admissible against a person claiming through him, if made while the title was in the party making the declarations. Jlaviilton v. Holder, 2 Pug. 222. BoiiiHlnry lines— Aurcenieiit as to— Acts, When a division line is in dispute between parties and thev agi'ee to establish a line and do so, and act upon it by putting up their fences, and by severally occupying the land on each side, they are bound by their agreement, whether the line is right or wrong, and cannot repudiate it, though they have not held under it for a period of twenty vears, so as to gain a title by adverse possession. Perry V. Patterson, 2 Pug. 367. (irniitor— Dcclnratioiis ns to boundary between date of delivery an«l registry ot i'«lii|» ol' VoMHOl. In an action for freight hy a ship owner, proof that plaintitY had for several years the management of the ves- sel and run her, taking charge of her when she arrived in port, and paying the captain and crew, is sufficient evidence for a jury of plaintiff's ownership. Ferguson v. IhnnvUk, 3 Piui. 288. *i9-<:a|>laiii of V«>k«cI— Bill of Lading— Stntoin4>nt ns to •«olliiiiir tfoo«l<>i nuclei'. In an action brought against the charterers of a vessel for non- delivery of goods shipped under a bill of lading signed by the captain, a declaration by the latter, while in charge of the vessel, that he had sold the goods, was held properly admitted in evidence. Burpee v. Carvill, 3 Pug. 141. 30— I ni' writers— Deelni'tttions by— AlUdiivitrcloircd to. In an action against the Secretary of the Society of Underwriters under the Act 21 Vic. cap. 61, the declara- tions of an underwriter on the policy relative to the subject matter, are evidence against the defendant ; and if such declarations refer to facts stated m an affidavit obtained by the plaintiff respecting the loss, such affidavit is also admissible. Duffy v. Styviert, 5 All. 197. 31— Agent— Action of tort against carrier. An admission by the freight agent of a company, who were common carriers, that a claim made against them by plaintiff for injury to goods carried by them, was all right, such admission being made two days after delivery, and iilf EVIDENCE. 565 aftor the agent liad examined the goods, was held to render it unnocesBary for plaintiff to prove by other evidence that the fooils were actually injured at the time of delivery. Uf,im V. Peters, 3 /'»//• 77. The plaintiff put in evidence the contents of a letter gent liy him to his son encloains a money order, and contain* in<' instructions as to the disposition to be made of the money. The letter being lost. — Held, That its contents were properly received in evidence as explaining the act of seuding the order, the letter formi.ig a part of the Act. Ckwser V. Samuel, 2 Pug. 58. 3S-Piiiiiit>i'««liip— liKliiriiip ttclivt in Oirprtioii of .lii«li;<> n«i to linbilii) Plaintiff was role contractor t\ ith the Corporation of St. John for the performance of certain work, and defendant was his surety, the consideration for which was that he was to receive a certain portion of the money. Defendant drew all the money from time to time. It appeared that one M. was entitled, as between plaintiff and the latter, to receive half the money, and did receive an equal portion of various payments made by defendant as plaintiff said by liis direction, but he denied that M. was a partner with him in the contract. Defence was — Ist. That plaintiff and (leldiilant were partners in the transaction. 2. That plain- til! and M. were partners. The learned Judge directed the jury that if they found for the defendant on either of these points, plaintiff' could not recover ; also that if plaintiff by bis statement or acts induced defendant to believe there n& a partnership between him (plaintiff) and M. by reason of which defendant treated the business as if plair?tiff and M. were in partnership, and thereby altered his position or '^as prejudiced in any way, plaintiff would be as much bound by it as if a partnership actually existed. Pleld, A proper direction. Smith v. Geroux, 2 Pug. 425. 34-Conver8ation conveying iiif or»<2ntion . 0. and his partner, being desirous of fitting out a ves- 566 EVIDENCE. sel which they were building, appUed to B. to furnish the materials for the i^ails, which he agreed to do, provided defendant, who was to make the sails, agreed to retain them until he (R) was paid. O.'s firm afterwards became insolvent, and plaintiff was appointed their assignee bv the creditors. After his appointment, plaintiff went to defend- -ant for the sails, when the latter told him that if plaintiff paid his bill he could have the sails, nothing being said of Pi.'s lien. Plaintiff paid defendant's bill, but when he went for the sails, defendant refused to let him have them, stat- ing that R. had a claim upon them. Plaintiff then re- plevied the sails, and R. put in a claim of property and be- came defendant in the suit, and finally succeeded in the action ; whereupon plaintiff brought the present action for defendant's breach of contract to deliver the sails, and, under the Judge's direction, recovered a verdict for the amount paid, with interest, and also his costs in the action of re- plevin. On the trial evidence was offered to show that before plaintiff was appointed assignee he had been in- formed by R. of his lien but the evidence was rejected. The court ordered a new trial, holding that this evidence was improperly rejected. Devehei', Assignee, d-c, v. Roop, 3 Piiq. 295. 33— GeiiM'al conversations— Iiidi«rtnieiit for riot. On the trial of an indictment for riot, evidence of general conversations between a witness and the person at whose house the prisoners were alleged to have committed the riot, were not allowed to be given. Regina v. Marlloux, et al., 3 Pug. 493. {Sec Criminal Law.) 36— Conduct ot prisoners previous to riot. On the trial of an indictment for riot and unlawful assembly on the 15th January, evidence was given on the part of the prosecution of the conduct of the prisoners on the day previous, for the purpose of shewing, as was alleged, that B., in whose office one act of riot was com- mited, had reason to be alarmed when the persons came to his office. The prisoner's counsel thereupon claimed the EVIDENCE. 66T right to shew that they had mot on the 14th to attend a school meeting, and claimed the right to give evidence of what took place at the school meeting, but the evidence was rejected, and Held, (per Allen, C. J., and Fisher and Duff, J. J., Weldou and Wetmore, J. J., diss.,) That the evidence was properly rejected, because the conduct of the prisoners on the 14th could not qualify or explain their conduct on the following day. Ibid. 3?-Pi*i§oiicr*s dcclarntion before cliarg^ed u'itli crime. A declaration made by a prisoner tried on an indict- ment for larceny, before he was charged with the crime, in answer to a question asked him where he got the property, is evidence on his behalf. Regina v. Ferguson, 3 Pug. 612. (Set' Criminal Law.) 3§-Pi'i<«oiier% statement before Ulag^istrate. A statement of prisoner before the magistrate is ad- missible when there is no evidence of promise or threat, although the provisions Statute 32 and 33 Vic. cap. 22, sec. 3, cap. 29, sec. 27, and cap. 30, sec. 32, may not have been strictly complied with. Regina v. Souci, 1 P. d- B. 611. [hec Criminal Law.) 39-E\«fiitor, de son tort— IVIeddling: with g:oods— Declarations of deceased. Any dealing with the goods of a deceased person, by which the party so dealing assumes to exercise a con- trol over the goods, is evidence against him as executor (ie mi tort. In action charging a person as executor de son tort by meddling with the goods of the deceased, a declaration of the decased, while in possession that the goods did not belong to him, is evidence for the defendant. Powell v. inutio, y All. 258. 40-Elcction law— Agent^s admission. A conversation with a witness, or the admission of an agent, had and made on the ''ay of the election, immediately after the close of the poUr, is admissible in evidence ^"/v. Ryan, 3 Pug. 110. {See Election Law.) li^yy^iiliai 568 EVIDENCE. 41— Insolvent— Statements by, on examination before Assignee. Statements of an insolvent on his examination before Assginee at creditors' meeting, are evidence against him on a criminal trial. Regina v. McLean, 1 P. d- B. 317. (.*,>(' Criminal Law.) Abscontlins: debtor— Ownership ot property— Snf. ficiency of admission. See Absconding Debtor 17. Cullcn v. Voss. 43— Conversations between person tin'oiigii tvlioiii defendant claimed title to let, anil tiie |ier<>.oii wiio owned house in which Avindows were oiiteiietl, relative to their opening', wiiieli eoii- versntion was had after the per«^oii tliroii;;h whom defendant claimed had parted Miili lii» title in the lot in question, are not a>ible. See Evidence VI. 15. King v Pugdey. 43— Declarations not within scope of ilntios. In an action against a Corporation, the declarations of the Mayor and Auditor respecting matters not within the scope of their duties, are not evidence for the plaintiff. Gervais v. Mayor, d-c., St. John. 6 All. 411. Fieri Facias— Delivery — Intention to have execiited- Letter to > ImumI. Sir Estoi^jiit'l III. 4^„ii«iAioii of party tliat l»oii«l \vii«> lii^— \ot 4*oiirlii«>ivc .S'V Estoiipcl I. 25. IjlH'l— JiiMliticatioii fVoiii adiiiiHKioii. Sec Defiiniatidii '.». <^iihM>Qii<'iii iu't li'-i aflcrtiii^' |»i'4>«ioii«> a(lii*i«»*!*ioii. .sVr Assumpsit III. 21. Olt• jiidtfiiK'Ul. Sec Judfiment II. 4. Fiijiiioiit of money into (Joiii't. i'M4>v Contract oS. Rr'tuhi v. ArchUnhl. 11. JimtiAL, Offr'(.\i.. .\nd othkr Dojumknts. i-VhXU -liViiUt. A [)!an produced by the heir of one of the grantees of tlif Crown, which had been in his possession for twenty- livt viars, and which had lieen seen in his father's posses- i^ionfor tifti-'u years bt'fort' that, and which was k.pt with til':; grant, was hekl to l)e suiHeiently authenticated as the plan referred to in the grant as " annexed," though the witness had n( ver seen it annexed to the grant. Rex v. Il''.-n//, Ihi: 1. 2-Mih«»4>qii<>iit tfiaiit* -ItflVrcnco-EITcct. Wlieri^ land in dispute was contained in a grant from tlK Crown to the defendant in 1827, but was claimed by '1" pliiintifi" as part of a grant made in 1784, to one D., uudtr whom lie made title, if there is any uncertainty as t' 570 EVIDENCE. to the rear line of the L'raiit to f)., sul)3equenc <,'vant« from the Crown to other persons, prior to the (ltfe'ul,ii;t\ grant, in which the 1). g'^ant is referred to, aie •'vid.-nc- for the purpose of ascertaining wliere the Crown eoiisiiir:-! the rear hue of the 1). grant to he ; i)ut not to \;tp ,;, description, nor alter its construction. Dar (hm C^ri,.'ii , V. Jciics, 8 Kerr 155. .J \Vh( re the h'Hsor of tlie hind in (jurstion as h"iiiL; part ot the Crown in 1781, and t le (h'l'eiid phiiiitil'f claiiiiul til ot No. v.], .L;;-;int-.l l,v tilt cliiiiiiiMi it a.^ a i i' in rear ol Xo. 8;{, granted in J 831); utlier giants of tin- Crown of adjoining hinds, made in 17BG, and between that date and 18:^1), may be referred to for the purpose of slaw- ing what the Crown considered to be the true rear line of lot No. 38 ; provided there is any uncertainty as to tli/ line. Doe d'm. PonHford v. Vcntoit, 2 Ken- B'-l. I Where land granted to the defemlant in ls:!;i, was described as being in rear of lot No. 83 igrantdl m 1784,) and lying between that lot and lot No. 3'.); suDse- (pient grants o'' adjoining lands in 178Gan(l 17'S7,in wlmii lot No. 88 was deseiibed as extending to, and bound-dnn lot No. 8*.J, are evidonee to slu'W the Crown out of posses- sion, for more than 20 years, of the land descrihed in tli' defendant's grant so as to prevent that grant from ooi ra- thig without a previous inquest of oilice. ////-/. /J Where the question in dispute is the dividiiii! line between two tracts of land granted by the Crown, a grant issued subsequent to l)oth these grants, is not evi- dence for the purpose of exi)laining any anibiguitv m either of them, and ascertaining where the Crown inten.ieii the line to be ; while the Ciown is the owner of the lami. it may by its declarations explain or control a previous grant, and a party claiming under a grant, subseijiiei.t to such declarations, may be bouml thereby. Cmtcr v. >/""• (hrs, 6 AU 147. ly, and the Surveyor being dead. l(V*////».s v. M.ioiii, 1 .1// <171. ^ - — A return of a survey in Crown land liled in the s stated in the return, although it is an ancient docuuieiit, and the Surveyor is dead. ]lniih'.-i v. J>(>iin, 3 All. 573. (t-Dcciec of |»ai litioii. A decree of partition is evidence in an action of eject- ffldit, to show that the land in dispute, formerly part of an miilivided (mmI, l»4'for4> rot'«'ivviiic<'. A. deed ap[)eared to have been executed in the presence '•ftwo witnesses, one of whom, a Justice of the Peace authorized k cake acknowledgment of deeds, was dead : no aceomit could be given of the other by persons who had the ''«t means of obtaining a knowledge of the inhabitants of iliq)lace whore the deed was executed, neld, That it was propedy received in evidence un proof of the handwriting '^fthe deceased witness. JJoc v. Ifc>loi'4^ proof. A deed offered as a registered conveyance, appeared In the certificate endorsed, to have been registered before it was proved. Held, That it could not operate as a sufiicient registry by relation, and that the deed was improperly ad- mitted in evidence. Doe v. Hideout, 3 All, 502. 13— Registry Book— I'wo deed!« \% rittcii on one sXxdvx- Oiic Ccrtificntc. Where two deeds were written on the same sheet of pa- per and registered at the same time, but only one certiti- cate of registry and one nu aber were endorsed— //W'l, That the Registry Book was properly admitted in evideuci' to shew that both deeds were registered. Doc. v. McCiilky, 3 All. 194. Qiuerc, Whether a proper certificate of registry could not have been endorsed at the trial. Ibid. 14— Pi'olmte or Will. The probate of a will, though registered, is not evideucu of a due execution to pass real estate. Hamilton s.Lnx, 2 Kerr 243. 15— .liidgiiieiit orForcl;;ii Court Is evidence only of debt, ^ee Fergus v. Wardlaic,SKcn 665. 10— ^(>al of Foreign .f iid;^iiiin.<.> . It is sufficient that the seal a,lf 1 to a foreign jiuigmeut is the seal used by the foreign Court, though it purports ou its face to be the seal of a different Court from that iu which the judgment was obtained. See Cijr v. Sanfmm, i All. 641. 17 —Foreign Jiidginent— Proof of. A judgment of the Court of King's Bench in England may be proved in this Province by an examined copy veri- EVIDENCE. 573 n«l by an affidavit sworn before the Lord Mayor of London, mnler the Act of Parliaments Geo. II, cap. 7 ; such affidavit livtheAct being tantamount to the viva voce testimony of tlie witness. Champion v. Long, Tlil. T. 183-4. IN-KH;ord of JiKl^mi'iit— Debt on BoikI— Date. Semhk, That the record of a judgment in an action on abend, is evidence of the date of the bond, in an action of fjtctment by a person claiming the title under the obligor, to shew that he was indebted at tlie time of the conveyance, ami tiiat it is therefore fraudulent. Doc v. Gilbert, 1 .1/7. 020. 19-\Viil-Exccutioii. An altered, /J. ^'f. is not receivable in evidence. Sue likmton v. Winsloir, Ih'V. 53. ■>0-Oii^'iiial (i. fa. not retiiriicd. In making tit'.e to land aider a Sheriff's deed, the orig- inal execution under which the land was sold when not re- turned and filed in Court, is admissible in evidence. Lin- '"H\. Wilson, 1 Kerr •2'23. •21 In an action against a Sheriff to recover money kkd by him under an execution, the original execution with the Sheriff's return thereon in the hands of the attor- ney is not evidence ; after being returned the execution is a iveord, and the lividence should come from the proper custO'iy. See Supra 20. Stuart v. Andrews, Tlil. r.,1827. i'i (oiitc'ui|»oiaiicoii«) Letter Where part of the alleged consideration for au assign- ment of goods was interest money due on a bond to a creditor in Nova Scotia, aod a bi'i of exchange drawn by him on tbe iiiaiutitrs was given in evidence. Field, That a con- tempov.ineons letter written by the creditor, which specified tbat the bill was drawn for such interest, was admissible 'nevileuce. Kinnear v. White, 2 Kerr 235. 13-Agiceiiieiit lor consent rule— .Tii4MII4>llt. In an action for obstructing a water ccuTse an ai;!Vt- ment between the pla-ntiff and defendant, wlieiviiv th- latter agreed to enlarge the water course, and did so, ami was paid b/ the plaintiff for it, is evidence for the plaintiff, and relevont to the matter in dispute. Pd'hii ■ v. Tunu':; 6 All. 290. 25— x\('\v<%|>a|><>r— Koporl not niitlioi'ixed. In an action against the Corporation of St. Joiin for negligence in the construction of a sewer, wherebvtheplai'i- titf's land was overflowed, a newspaper, purporting to con- tain a re])ort of the proceedings of a meeting of the Corporation at which the question of the sewev, and its effect on the plaintiff's p"operty were discussed, wpa \M iu evidence l)y the plaintiff. Ilckl, That in tu^ tiuotiiueof evidence tliat the report was authorized by the defendau; to be iniblishfd, it was not evidence ; and that as the state- ments in it had a material l)earing on the plaintiff's ca.'^e, and did i)robab]y influence tiie jury, a verdict for the plain- tiff was set aside. Ililcy y. The Mayor, etc., of St.Jiihn,i) All. 78. KewsiKiptT— .>"oti<'«'— Aiiilioi'iiy. See Joint Stock Company 3. a6-I%isi Piiiis Uocoid -Mcrsoi" of DofriKlain's flam. A judgment recovered hy the defendant against tlii' plaintiff after the commencement of the plaintiff's suit. ei!> not be phaded as a set-off, even though the verJi": hi which the judgment is founded was given before the com- fl EVIDENCE. 575 mt^ucement of such suit. Tlie defentlant's original cause 01 action being mei'j^ed in tbe jiulgmeut, the niii prlis ve- coni in the clel'endant's suit is not evidence of the plaintitf's intlei'tedness before the commencement of his suit. Hiim- m.inl\.Mc. v. lluii.m, 3 .1.7. 4'2S. A written receipt, signed by thi^ moitgagee, is not ad- missive i'l evidence to prove payment of rent to him. Ir'lhis.Jnhintun, 2 Kcrv 541. '29-Jiidv;iiM°4a. In an action on a Nova Scotia judgment signed, 7th Mi'.ch, 1855, in pi'rsuance of a Judge's order setting aside tilt d'iienciar.t's plea as fi.ivolous, the defendant pi'oduced a ctit'ficate from the Prothonotary of t'le Court, entitled in tbe same cause, stating that judgment of non pros, for want ulartpi'caiion was marked on the 11th December, 1854. Ilk!, That in the absence of ftny recovd of such judgment, ••r of nnv evidence to show that "mavkmg" was eqriva- Idit 10 ''s'u^'ig," there ^^as not scQie'ent evidence of a judgment cf non pros, to affect the vaUd.ty of the pla"nt'^"'s jiidguent. Dennison x. Taylor, 3 All. 313. (*«rm', \\ nether, in such case, farther evidence than the mere identity of name was not necessary, to identify tbtr ('e'endant with the defei:dant m the judgment sued on. S0-1FMuri(.»i of C oiil i o! Sf ^SK.ii. file ffauites of theConrii of General Sessions are evid- ence ni the saj3eCoi'vt of the facts therein stated, \Aithout apv othc-v pvoof that the matter thevein recorded took place ; tnort.o'e a recogiiisacce in a case of basta'-dy taken under tlit .^ct 2 Vic. cap. 42, is proved i)y tiie production of the ffiiniuesof the Sessions containing the entry. Ex parte ^'". '•.'/, 1 .4//. 424. 576 EVIDENCE. 31 — Fror of P(>ar<> iriiiriipd iq $$ii|»i-ciii<> Court. An information and other proceedings before a Justice of the Peace, returned to the Supreme Court with a tv)7,„. nirl and lile(] with the Clerk of the Crown, hecoiiu-s a re- cord, and may be [)roved by an examined cony, tiilan bdorfc the original was filed. Sein-ll v. Olin', 4 .1//. 394. 3a A coi)y of the Minutes of the Supreme Conn, stating the reversal of the judgment of a Justice oftlif Peace on certiorari, is not evidence of such reversal, it b-iivr of itself a judgment which sliould be made ui) ouoconlanil proved accordingly. Doiiiihis v. Ilinklri/, UiJ, 'j\ 1303 {Si'e ScweU. v. OUve, Sujira 31.) 33— .M«>iiiofi;il— liiciiiiil»riiiii;r. A registered memorial of a judgment against the vendor is evidence of an incumbrance on his land. Smtt v. (i.u: nctt, 2 ^1//. 621. 31— 4'o|>i«><> of |>roc«M>(liii^r>» in PorciK:!! Courts— Coi'iifj. 4>nt<>— Sopnrsitc iit<>>— Aflidavit. Where it is sought to put in evidence copies of thejUM- ceedings of a foreign court under the Act 10 Vic, cap. 41, sec. 0, (con. fitat.. cap. 46, see. 12), one certificate is sutii- cient, and each document need not be separately certilieil. The statement in the certificate that there are no otiid' papers on file in the cause, will not invalidate the certi.fi- cate, if good in other respects. Where on the trial of an indictment for bigamy, t'li^ defendant relied on a decree of divorce obtained in a foreign country, a certified co[)y of an atiidavit pin-portiug to have been made by the defendant in the cause in wiiili the divorce "was granted, is evidence against ]:im, without proof by viva voce evidence that he had sworn to tht- original, or bad used it in a cause in which he was a party. licgina v. Wright, 1 P. tt!- B. 363. S/S— Bill ot Saic-€ci'{ifiefl Copy. A certified copy of a bill of sale is not admissible iu evidence under 21 Vic, cap. 8, sec. 7. {Sec consol. stat., !< : JU 'V. m^ EVIDENCE. 577 e;ip. 4«), sec. 7), without proof of the execution of the original. Lnrcjoy v. McD'iarmid, 1 P. d- B. 275. :)((-:\i«ii Print* Korord— V<>r4li4;t. hi an action bvoui^ht atjainst .lefendant as owner of a hiiip, for damages for the alleged detention of a (Quantity of iron, the uhi pnnH record in a previous action hrought by tile now ilrl'endiint against the now plaintiff, wherein the fonnir soufjlit to recover freight from the latter for eiirry- iiiKtlii- iron in question, wa-! held admissil)le to [)rove that in that suit the now defendant claimed to be owner of the sliil' as l)oin<4 an admission by him that the master of the wssel was his servant, thereby connecting him with, and making him liable for the act of the master ; but evidence of thi' amovmt of the verdict recovered in that action, when no ju.lgmfnt had lieen obtained, was held inadmissai>le. IiimiriUc V. FtninsoH, I P. li P. U. :j?-.>oliro ol dclciicc A notice of defence given under the Act 13 Vic, cap. 3'2, in not part of the nisi prius record, which may therefore lit put in evidence without proving the notice, ur account- int,' for its absence. L'ln-inn v. AdnnH, 5 .1//. 274. :tM-('(>i'tili(>:itc of paynioiit— Sintutory title. The 1 Rev. Stat., cap. 90, sec. 1, declares that when the Governor shall have naid to the Mayor, ka., of St. John, aud the trustees of said corporation, and a certificate of Mich pavmeni shall have been executed under the seal of the cor[)oration, and tiie hand of the chairman of such trustees acknowledged or proved, and registered as in the case of deeds, a certain tract of land (described), shall be vest'i'd in the Queen lor the purposes of that chapter. This section is substantially a copy of the preamble and first section of the 12 Vic, cap. 28, which declares that on registry of the ^'rescribed certificate the land described in the Act shall be vested in the Queen without any further act or deed or convevance whatsoever. In an action for intrusion upon a part of the property ii( -liii{»<'n«*liMitf Haiii4'. A foreiga judf'nieai, whether in pi'is))i(iiit, of 'n rem, mny he inpeached ''n our couits by extiinsic evidence shjuing that the Coe"t which pionoimced it had no jpi-is- diciion. or that it was obiaincd bv irard. Therefo/e, a decree oi divorce oLta've.i in a foreif^u Copvl; on a fa'se afiddavit that thepn'.-ty see'-'ng it war, ai the t'liie of t'le suit, and liad b-^en <'or a }ea.- p^'eced^* ig, a refc.idfcnt of such fore'r/n count'.'', when in fact he was duoiag tUat t''ue a resident of this Province, is vole. Riijiaa v. IF'e/A.', 1 P- lO /:. 363. 41— .4'i.*4'4'iii<»iit l4> (»iif4'ii:isr— Fi4>4;(iii4>nU "Where the defendants in an action of ejectmoit went 'nto possession ondc-.r an a-rree'iient to pu;;chase from the person th'-ough wnom the lessor of lue plahiti!! clairaed title, it ^^as held that the agreement was I'roperlv received in evidence. Doe dem. Mo.fai v. Thompson ct ai, 1 P. if 42— ^4»ii as*aifll 4'«»mosiio — Koplicalioii — Evi4lciicc In an action of assault ami battery to wh'ch the defend- ant pleads the plea given by the Common Law Procedure Act (Coxisol. Stat. cap. 37, sciedule B. No. 41) "That the --;? I. ;•■ mmmm^. - m ■ EVIDENCE. 679 )>liiiiitirt" tivst ap ^iii'lti'tl the (k'f- .djiut, wlm tii('V('U[)on iitctssaii'v fonr.iiitU'd ilicMillof^od assault in liis own do- kwi\" tl'i'i'l.imt'ff may, under tlu- general form ol' replica- tion joi'iMis isrtne on the id'^a, (Consol. Stat. cap. 87, sec. ;.V find without repaying e -coss, s-hcw that aUhouf;li he (omiuitted the first assult. the del'ondant wan RUilty of e:;ci'S.s. Sitvi,(n'\. St-itJ:, 1 /'. <(• 1>. 004. f;(_!^lM>r'Mi'— .\4'iioii H;:.'ihi<«t— f*:>|^4'i' ^^ •'•(tni l».v drii'iid- mil \vl*il'«t inidcr uu'.'Mt. A p!i[>"r written hy a defendant under arrest, in the invseiice of the Deputv Sheriff who made the arrest, the coiutiits of which the Deputv may l)e presumed to have ki.'own. a'.d hy the Deputy forwai'ded to the prisoner's attorney, was hehl ([lev Fisher and 'vVetmore, J. J., Duff, J.. iVi.ti.,) to have heen pioperlv received in evidence in an aciioii agfi'nst the defendant, Sheiifl'. Jnna v. B(.f<^fi)'iJ , 1 /'. ,( /'. O'l. ll-UitlM'KS tO4P4-0uioii Cuiitit^. Sec Bills and notes VI. 12. Assmnpsit III. a. '•(-Dofiiiiinlioa-Aflidavil oe «l<>rt adaiit before luagi^t- lian -Halice hi an action for oral slander an affidavit made bv the 580 EVIDENCE. defendant before a magistrate as the foundation of a ciiminal proceeding against the plaintiff, which is still pending, is not admissible evidence to shew malice in the defendant. Ranklne v. Clarhc, Ber. 303. 3— <'iiiii-;;c> of St«ulill^:— Gvideiurc of s^viieral had cliai- nrtt^i' ot plaiiititr not adiiiis««il»l(> in iiiititfatioii or daiiiau:o«. WiUistini V. Smith, 3 Kerr 443. 1— AllogatioiiH— Allidaiits— Iiiiiii(>iidoc>. In an action of slander for charging the plaintiff with perjury, some of the counts stated in the inducement that the words were spoken of and concerning the plaintiff and of and concerning a certain affidavit, etc., the ilefendaut justified, setting out the affidavit, and alleging cirtaiu statements therein contained to he wilfully ftilse. The aftidavit referred to two papers which were annexed, Ijut there was nt positive proof that they were annexed when the aflidavit was sworn to by tlje planit'ff. Ilild, That there was suflicient prima facie evidence to let in the whole of the affidavit, and that the admission of part to he read without the papers annexed was not correct, au'l the innuen- does not sultlciently proved. Mihierx, Gilhert, 'd Krri)\l. 5— :^I«*sii«' profits— Jiid^iiH.'iit—A^rooiiKMit lor consoiit i*iilo. In trespass for mesne profits by A. against C, who claimed under B. for an alleged wrong by C. between the time of the demise to A. and his recovery against 13., a judgni^nt in ejectment by A. against the casual ejector (B. being the real defendant, and by C. his attorney, having entered into the usual agreement for a consent rule) was offeretl, together with the agreement for a consent rule, and admitted in evidence ; and it apj^eared that !'*'ter such judgment obtained, the plaintffi''s agent had taken posses- sion of the premises, though no habere faeias had heen executed. Held, That such judgment was rightfully re- ceived in evidence against C, he having come in under B. Held also, That the agreement for the 'consent rule was EVIDENCE. 581 admissible as a proceed^'ng iu the action of ejectment, which served to connect B. with the ejectment suit, as tenant in possession. Eraser v. Harding, 3 Kerr 94. 6-Iiispeotioii of Pickled Fish. Queer:', Whether any evidence is admissible of the bad quality of pickled fish inspected and marked under the Act of Assembly 5 Wm. IV, cap. 43, other than the re-inspection provided for in the thirteenth section of that Act ; or without such re-inspection having been made ? Sm ith v. Dunham, 2 Kerr 630. 7— §lit>ri(r— Action nj^aiiist lor false i-ctiii'ii-lllalice— Pn*>t Practice. In au action against the Sheriff of A. lor a false return to a writ of election, where the charge was, the unlaw- lully striking out the names of voters who had refused to take the oath of qualification after having polled, evidence of such a practice at elections in the county of W., of which A. was formerlv a part, is admissil)le on the ques- tion of malice. (Per Ritchie, J., Parker, J., (Jiihitant.) Stiks v. Gillxrt, 4 All. 421. ^-Li/iiiil itoiKl— Defence— Discliai-^e of debtor— Fraud. ^Vhere the defence to an action against the sureties on a limit bond is, '' at the debtor was discharged by the Jus- tices fo'- non-payment of the weekly allowance, evidence is uot admissible to show that the discharge was fraudulently obtained, by the debtor concealing iiimself to avoid the payment, unless the sureties are iuijilicated in the fraud. J"ns\. Fletcher, 4 All. 5i30. »-l';uiiiers— Proof. In an action by partners, brouplic alter the Act allowing parties in a cause to be witnesses, it is not necessarv to call the plaintiffs to prove the partnership — it may be proved by other evidence — in the usual way by parties lia\ing dealings with them as such, or by persons having means of knowing who composed the firm. R'liikin v. Uarleij, 1 Han. 271. 582 EVIDENCE. to «l4Jillt IX'I'SOII*.. In an action against the defendant for neglicrence as a sur.s'con, in his treatment of the plaintiff, whose han.ls ami feet Imd been ampntated in conseiiuence of his haviiia he, n frozen, it was proved by tlie plaintiff that wJieu the del'eiiil. ant first visit«i him, he said that the plaintiff would nm lose any of his liini)s. IfchJ, That a statement luibl.' i,v the defendant on the same occasion, to another person m the house where the plaiiitiff was, that he woold losi- liis hands and feet, was evidence tor the defeudant as i)art of the res ni'fstce, it ap['earin<^ tliat his practice was alwavs to encourage his patients, and prevent a dejiressioii of tijtiv spirits. Ki'ii V. Thomson, 1 ]hnu 21)7. When tht; plaintiff idves the evidence of medical men as to the proper treatment of cases of frozen U.iibs, the necessity of i'rei|uent visHs, and tiie'r practice in [)avticiilai' cases; the d«.d'enda!it may <;ive evidence of the ti'eatment of other cases of a siujilar cliaracter, an^l of the resiil.s, in order to rebiite the inference of negligence ansing honi the eviden iflc- vniir. In an action for not accepting timber according to agreement, ti)e plaintiff' gave evidence of the purchase oi timber by the defendant from C. and W. about t'le saiae time. //'.'/((, That although the defendant's contract witii C. and W. would otherwise have been irrelevant testimouy. the idahitiff" had tliereby made it material, and that it was open to the de'endant lO go into e\idence to explain tiii.- whole of the trausf.ction with C. and W., without ca'hng them as witnesses. CuiincU v. Siii'dh, 3 Ken 4S3. lit— Ti"ov«'f—< 'list out. iJy regulations of Government, no thnber was to be cut EVIDENCE. 583 on irrouii'l applied for until the license had issued. (JuaTc, Evi'leiice of a practice to the contrary is admissible. ('(inwJicsv. Hdtltcicdi/, 3 K'vr 592. I l-:>«';;liu<-ii4'0 or |»lii<«il4ll — KiMiiiciioii of 4 oiitriK't hi an action for work and lahonv hi rnloadin.ir a ship, tile (Icfepdiiiit cannot r've evidexice in reduction of the con- t'-.ut price, cf tile vahie of cevtii'n property in the slrp ln.'loi)j'!n'j; to a v\n-([ party, winch was destroyed l)v t'.!3 lil,i''itiQ"s ne^ii;j,eace in d'Scii;i!';^'n'4 the c;n-f;o, in conse- (jucnce of whicn ihe ddiendant wonhl i)e 1 able in damages to the owner of such propenv. WiJ^idii v. Ji:icii, 3 Kcir 1171. |.»-S|kmm:iI roim:n (— lt'-1:»f i«ii to p:i.-,iiiiii)sit I'or hu'ldhig a horye, ihe plain- tiff pioved tiie valro ot tl'c woi'k to l)e i'MO, in answer to which it was shown that the principal [)art of the worii was iloi'.e uudtr a s[>e('ial contiMct for t'55. Hchl, Tnat evid- iiicf oi a special contract w'lich I'eiated to i)art of the work only, w;is inadiiiisoihle in re[))','. Ilohcri-H'ii v. Milr.^, 1 .]//. ciir l(i-Kii''v ill books— It«iii(l—I*iiiicii>nl :iiifl Kiiretv. Ill a joint action a principal and surety on a bond con- (litioiifd for the Mdelity of the principal as a clerk, entries of lilt' receipt of sums of money made by the clerk in books lupt by him in the course of his duty, are evidence against the suveiy of the receipt of the mone_ - ; but Sciiihic, That an ontry by the clerk in the margin of the ciieck book of tile ih awing of a check, without showing that it has been imiil, is not evidence against the surety. Mcrluinics' M'lulc Fhliiwj t'oiupni:!/ v. Kirhij, 1 All. 223. By the condition of the bond the obligors agreed to iiiiike i./>od to tlie plr.iniitiS, a Corporation, any loss sus- tanied by the misconduct of K. as a c]evl., within three months afte'- due proof thereof e-tner by confession of K. or otherwise, and notice or warning the'/eof in writing given to the obligors. II, 1,1, That a notice from the Solicitor of 'Yr, r 584 EVIDENCE. the Company to the oblif?ors of the general nature of K's defauh, aocom]ianiecl by an account of entries made bv him in the Company's books, shewing the moneys received ami paid, and a notification that the books were open for the inspection of the obligors, was sufficient proof, and that a" atiidavit verifying the account was unnecessary. HdiJ also That neither the notice nor the Solicitor's appointment need be under the seal of the Company. Mecliantrs' 117/,;/, Fishinfi Companij v. Kirln), 1 .1// 223. IT— Foriiici" recovery— Admissible in replevin. A former recovery in replevin is admissible in evidence in a subsequent action between the same parties without being pleaded, where the matter in dispute is in sabstance the same, and relates to the title of the land from which the trees were cut and carried away. Stewart v. McFai- ''He, 1 All. 233. See Former Recovery. 18— Bankruptcy— Certificate— Fraud. Evidence that the bankrupcy was fraudulent and col- lusive, is inadmissible on a trial at Nisi Prius to impeach a bankrupt's certificate duly obtained from the Commis- sioner, and certified l)y the Court of Chancery under the Acts 5 Vic. cap. 43, and 6 Vic. cap. 4. M'»rison v. Alhcc, 2 All. 145. 19— Trespass— Laying^ out road— .fuslificalioii-Pliiiii- tiff's orig:inal case— Rebutting evitlence. The defendants in trespass justified enterinj:;, under tlif Act 13 Vic. cap. 4, as Commissioners of higliways to lay out a road through the land, and proved a return of the road sufficient upon its face. Held, That evidence of excess in laying out the road wider than the law allowed, must k given as part of the plaintiff's original case, and '.as not admiosible as rebutting evidence. Ihiirniiu) v. Gitint, i Ali 569. Qiucre, Whether evidence of a person not present fit the laying out, but who afterwards examined marks on the trees where the road was laid out, is admissible to prove excess ? Ibid. H'ii EVIDENCE. 685- •jO-Spt'fial «laiinig«'— C'ontracl. Evidence of special damage in not being anlt- to fulfil a eoiitiact for the delivery of logs, is not ailmissil)le where tht damage alleged in the declaration is that the [>laintift' \va> I'revented from getting the logs to market, and thereby lost tlif freight and sale thereof. Roirc v. 7'<7»-s', I AIL 826. ■2l-Keooi'ii«>e. hi a iiroseciition fov a penalty for selling liquor without license, proof that the sale was made by a person in the defiudant's shop in his absence, and without shewing any general or specia' employment of such person by the de- fendant in the sale of liquors, is sufficient primnfacifi evid- Hui- against him. Ex parte Pdrks, 3 .1//. 237. The prosecutor need not prove that the defendant had no license, Ihid. '^i A1— A<-tioii a^fsiiimt ^lu'i'itl— Proof of iiMl;fiii«>iii to wsirriiiit 4'\4'<-iitioii. In an action against a Sheriff, where he justilies uhiIh- an execution against a third person, he must give in rvid- ence the judgment on which the execution was fomi'iei. Cniiic V. Chirl.r, JliJ. T. 1S28. 20— 'l'r«'«»|»a<>>^i— Titi<' in foi'<'i^ii <'4»igiili'>. In an action of tri spass ilc Imni.-i nKjiari'ith, evidencr of titli! to land in a foreign country is aduiissiMe to provt- the plaintilf's right to the property taken. Muhh v. Lkmnli-- hiin, Jill T. 1828. 27— Action on Ciiinranlcc— .loint or sev«'rai iiiicrcsit.. Defendants gave a guarantee that the wages due W. K. and G. N. from J. II. for making timber, should lie[;iul when they Itrouglit the timber up. Jlrld, in an action <\\\ the guarantee by G. N., That evidence was adniissilik^ to shew that he and W. K. were separately employed by J. H,, and had separate wages, in ord'^r to shew that tlit-ir in- terests under the guarantee were several. A^/vV/V v. J^.^'/i/f, llil. T. 1832. 2M— Action on the ca<— Otlicr cvid 4>u4'c than «lania^e stated. The obji ct of stating 'eci;il damage in a declariitioii is that the delendant may be enabled to meet the cliar^'c il it is false ; and therefore where the law does not neeesijiuily imply that the plaintiff has sustained damages by the act complained of, it is essential to the validity of the (hclani- tion that the damage should be stated with paiticuiarity and accuracy. Thereioie where in an action on the case, the declaration stated that leaves from trees on defenduuts premises which had been allowed to grow and overhang plaintiff"s house, tilled up and obstructed the spouts for conveying water from the root of the house, by means EVIDENCE. 587 thereof plaintiff had been put to expense in clearing the IfiU'fS from the spouts, and the spouts had lieen greatly injiiml thereby. Held, That under this statt-uient of dam- age, evidence of the rain-water being discolored by the leaves and rendered unfit for use, was improperly admitted. }lnili, V. l!<>sr/d Pti;i. 884. •2!) Bi'Oiu-li oi |>roiiii. On the trial of an action for bi\:icli of promise of marriage, where plaintiff gave evidencK of lier soduetiou hy ileffiulant, the latter by his cross <:'xamination of i)laiiitiff, attempted to shew her uneliastity before her acquaintance with him. Held, That this gave her the riglit to repel the imputiition involved in such cross examination, not only l>y lier own evidence, but also to vindicate her character by otlier testimony. Held also, in such action, that the de- fendant cnuld not give evidence of the reputation of the lijaintitfs mother, though he might shew th(^ character of the house in which plaintiff lived. Burl.c v. ScrihtHr, ;J Pui/. :tO-^)('i(>iitoi'— Kiting: by doff. hi iui action to recover damages sust.inied by plamtiff U'oui a l)ite from defendant's dog, [)hiiiitiff will not br^ al- lowed to prove that sul)Se([iieut to the injurv- complruned uf the dug had bitten anotlnr pi-rson. In this case, which was tried in a County Court, such evidence was admitted of the biting oi one C, but in charg- iiii^the jiu-y the Judge told tlietn that the fact that the dog hit C. was no evitkmce, and did not shew that defendant knew of the mischievous character of the dog on the day lliiintiff was bitten ; the -Judge refused a new trial, and the defendant having appealed, it was held by Weldon, Fisher ;md Wetraore, J. J., that, th(nigh the evidence wa^ un- pi'operly admitted, there being evidence that defendant Miew, l)efore plaintilf was bitten, of the mischievuus dis- position of the dog, and the objectionable evidence having hmi withdrawn from the jury, the verdict should not be ^Unthti, hut by Allen, C. J., and J)uti', J., that the evid- 688 EVIDENCE. i ^, mm ence was inaclmissible, and as it was impossible to sav tliat it had no effects on the minds of the jury, or that without such evidence they would have found for plaintiff • that, thei'efore, there ought to be anew trial. It is necessary in an action for injury inflicted by a dog to allege and prove that defendant had knowledge of the animal's vicious propensity. But as soon as that know- ledge is shewn, the same responsibility attaches to his owner, to keep him from doing mischief, as the keeper of an animal naturally ferocious would be subjuct to; and there is no necessity for provhig negligence. "Where defendant's dog was left in a yard to watch the premises, and in charge of hif. family, during which time Y. was bitten by the dog, in presence of defendant's family. In an action brought for subsequent biting of plaiutff bv same dog, the biting of Y. was proved, and also the fact that Y. had told the defendant of it. Defendant ofTeied to prove th*' account his family had given him of the way iu which the dog came to bite Y., but the evidence was re- jected. //('/(/, That the evidence was properly rejected, Wihiwtx. Vauirart, 1 P. d- B. 450. 31— .Iii4l;tiii4'iit and e\<>('iilioii— Trover. Judgment and execution properly admitted under pleas of not guilty, and that proi etty was not the property of plaintiff in action of trover against Sheriff and judgment creditor. (>U'ii4-y of ft'ii«lniit as \v if iu'*ts— By-Law S\, .loliii— P«.>iiall.v— C'ivil prociuuliii^. Proceeding for the recovery of penalty when in nature of civil suit and not a criminal proceeding, evidence of de- fendant admissible. Sve By-Law 8. Er jntrte Tninli. 33 — Criminal I'roccodiii^. Prosecution tor recovery of fine for knowingly solemniz- ing marriage where either party is under twenty-one years of age, without consent of the father, under Eev. Stat. cap. 146, sec. 8, is a criminal proceeding, and defendant is not a competent witness under Act 19 Yic. cap. 41, (Conso! Stat. cap. 40). liegbiaw Gtdl/oit, 5 All. 115. EVIDENCE. 589 jl- Deceased person— EvideiM-.e n^ninst. When it is sought to fix the estate of a deceased person with a liahiUty, upon the uncorroborated evidence of an in- terestetl witness, the evidence ought to be very clear and free from suspicion. Er ]viyt<^ Simpson, 2 Puj. U2. :j.S-Bo|»levlii -Wi'it— Identifying properly. hi replevin it is not necessary to put the writ in evid- ence for the purpose of identifying the property seized with that described in the dechi.ration. Dnv'ulson v. Kinrj , 3 Pii'j. 398. 3fi-l* *Soii iis<»suilt deiiie<«ne— Kepliculion not neee«>«>ai'y — Tvideneo ol"«»\ce*»s. hi an action of assault and battery to which the de- fea.lant [iloads the plea given by the Common Law Proced- ure Act (Consol. Stat. cap. 37, schedule B, No. 41) " That the plaintiff first assaulted the defentlant, who thereupon necessarily committed the alleged assault in his own de^ ftii'e," the plaintiff may under the general ^'orin of replica- tion ;'iinin<^ issue on the plea (Consol. Stat. cap. 37, stc. "•T I and without replying excess, shew that although he cemniitted the first assault the defendant was guilty of excess. ,V(in/,7',' v. Ilarl-, 1 P. .r B. 004. Adioii for general average eonlrihution. I sage negativing claim to general average contribution ; tHuuou of proof on defendant. Sec Shipping Law 16. ('.!,./.-/v)H V. rhmvillc. lusiimiicv-Uicaeli of eertain eondilions in poiiey— ls joiiiea ilivron— Proof neees<»ary. St'c hisurance 44. Mitrtin v. Mntaal lus. Co. 690 EVIDENCE. Evidence of fraud can be given under plea. See Mi' Leuil, AasiiiiKX', i(:c. v. Mcdinri, 2 Pug. 238. lii^iii'iiii4-4' poliry Msil4>iii«>iit of ra4;tM. )<■( Insu nince i8. (iilison v. S. B. d- McrcantUe L Co. E.J4M-liii('iif— A«liiiiiii*«tralorN d«'<>4l iiiii- li4>«>ii«.o ns. to soil ion — l*4'filioii «>isiliii^ ii4M>i>Msjii-,v Ia4-t«« on iipiHicai f'OI- IU'4>IIH4'. Sfij License 12. Doc don. Boivcn v. liohcrt.inn. £.i«>4*iiii4'iil— i^lKM'itlN l>«>c>«l— §al4> iiii(l<>i- an alias llie original (>x«'('iilioii ii4M'«I not l>«; provoil. Set blierift's Deed (>. K4'|»l<'viii. Sill«> by iii4'oi-|»orat«'i'«> 4»l ai'4> 4'vi4loii<.'4> of Ilic InH'^klsiU'*** 4l4>aili. Si'f Scriliiicr v. (Ulihini, 4 .1//. 182. •.2— A4iniini<>|i'al4>i-*«> 4l4>4'4l— Afli4lavit — E%i4l4>n4'<' «»rulia(. The at'tidavit endorsed on a deed purportius to be ma'!. by an administrator under a license from the Probate Cmut, is not evidence of the death or granting of administration; but only that the laud has been duly advertised aiul sold. !)(><' V. Doiioi-dii, 4 All. 116. 3- ijiiarc, Whether the at'tidavit required to be en- dorsed by the Uev. Stat, cap. 13<), sec. 42, on an cxecutois deed, is evidence of any of the proceedings except tiie advertising and sale of the land. Doe v. Thompson 4 .4//. 483. EVIDENCE. 591 l-Auoiiry. Smhk, That the fact of agency may be proved by parol, tliougli the appointment was in writing. See Wahh v. Street, ;M//^2,n. A^Miil Arnt'diUMl. Si'e Corporation 4. .1- licasc— UiiitiiniK' ori^iiisil««— I'l'iiiiai'y 4>%'ii-4'liaiitablo quality— Evi— OiiMtci'— Kiillicl<>ii<*y of Rvi«l4'ii4><> «>f. The phiiuti'f claimed undca* deeds from the heirs uf [\ S., the defendant under a (K'cd from his mother, oin.' ot tlit heirs of P. S. The defendant stated in his evidenco that he cut the hay on the land in dispute to prevent tiif [ilain- tiff, (h* ; co-tc:nant), having tlie heiielit of it, suvl that !"• at the time denied the plaintiff had any ri<^ht to thr Jand whatsovi'r. Held, That this was sufficient ivnleiic" of an Ouster, and that the jury should have found for the plaintiff. L'ndor these circumstances the defendant's counsel had no rij^dit on cross-examination to ask the defendant the following and similar (juestions : — " When you went on the land (lid you go with any object except to get the henttit of your mother's right, whatever that was'?" And th'' answer to these questions should have been rejected. In tiio ques- tion of Oustei-, it is immaterial what the defendanc uiay have thought he had a right to do under the deed. The question is, what did he intend to do, and what did ii- lo, in reference to the pro.iuce and profit of the land ? AJii-fii'i v. Smith, 1 ;■. ,(• ;;. i '.•*». lO— .\v:i-«'< mouf ofiiiii't'liaso— Ti'iijsi u«•^.^^\l- tol■ll(>.v— A|>i>oiiili!a4>iil ioii4i«'i' <>(' ttiii'd i>iii'l.v Fraud— f^qiiitaitlf d<'l«'n«'«»— .\o ;nm\v«'r at Uiw. A. R. being in financial ditticulty executed a iiow-rof attorney to G. M., to convey all his estate to ■). M. and J. Pi. in trust to pay his creditors, and in case eitiier oirh-in should die or refuse to act to such person or i).-vsoiis as G. M. should appoint. J. Pi. refused t.i act, an(t (j. M. con- veyed to J. il. and A. 13- J. M. died, and sahs'quently A, B. sold a parcel of the land to G. M. and con\>'yed it liv a deed purporting to be made between J. M. and A. B., trus- tees, of the one part, and G. M. of the other part. // W, That the conveyance under the power ~f attorney was gjod, EVIDENCE. 5'J8 that tlie estate vested in A. 1*., the Kurviviiig truster ; that tlu' deed from him to G. M. was good, and that G. M."s titlo was complete. On the trial of this casu the (U'fenchint's poiinsel otTcrt'd evidence (1) of the amount to he paid for ,!. land in question ; (2) of the particuhirs of a purcliase l)vG. M. at ShcritT's sale, ot A. ll.'s [)i()ptrty, by which it was alle^'od that he h;ul fraudulently contriv-'d to get the lestofA. IL's real estate for a small con.sidtratioM, in eon- sequence of whieh A. li.'s creditors got nothing f)ut of the i-state ; Ul) that thedefendants had always Ik en ready to jiay tile iiurchrtsc money, hut had been unabh' to lind anyone autiiorized to receive it. Tho evidence was rejected by the learned Judge. Ihlil, That it was i>roperly rejeeted. Tlioii^li the Judges of the Supretne Court bave jurisdiction over cases in equity as well as in law, the [jrineiples and iiilis which govern the administration of justice in these Courts are as distinct as they were before the passing of the Act 17 Vic, c. 18. Sitting at Nisi I'rius and hearing an action of ejectment, tbe Judge has only to decide upoa the legal rights of the parties, and if the plainuir makes out a legal title to the pro[)erty, be is entitled to re'cover, even though the defendant may be entitled to relief in niuity. I>(ie. (h'm. M(>(l((t v. TliomjiHiiii, ct iii i I\ t(>i'. In an action by a (ras Company against a consumer of their gas, it was held (per Allen C. J. and DuiI- -Wetmore J. diss. ) that had it been shewn that the Company had placed in the defendant's premises a meter duly veriiied and stamped, the indication of it subject only to being teste:' and corrected in the manner pointed out hy the Legislature, would be conclusive upon tlu* jiarties ; i)nt that defendant was not bound by an unverilied meter. .^7. ■John Gas L'uihf Co. v. Ckrb\ 1 P. iV B., 307. I'2— LaiMl— Wlu'lln'r ifi-iiiiloil or not— (liciiei'Sii iiiidoi'- ^ hetlier hnids are granted or not cannot be proved by evidence as to what is generally known and reported in the place where the lands are situate. Davidson y. King, S Puil. 396. 594 EVIDENCE. !# 13— lli$^li\«'ay««— I^ayiii^: out of. The return of the Comraissiouers of Highway's properly made and filed, is evidence of the la3dng out of the street. Il-ima V. McGoiran, 1 P. cO B., 191. 11— llig:li\viiy<>>— C'oiriK!ii<>>«»ioiiciV Rotiirii. ; The return of the Commissioners of Higliways, properh- made and filed, is evidence of the laying out of the street. Ri'ljiii'i V. McGnn-'tii, 1 P. ,(,'■ B., 191. I'l — lii^iolV4'iit A<'l— Ti'ad<'r. In a case of compulsory liquidation, the juaginent of the County Court Judge adjudicating the party insolvent, is prima facie evidence of his heing a trader. McGnirk v. MrLeod, 2 Pnij. 323. E<<>to|>|>4;l— Wlioii may roly on >«aiiio in cviiitH> Willi- oiii |»l«>a«liiiK it. S"i' Estoppel 29. liio>oi\'-(>iiry— Doiiiaad of aMHiK^iiiiieiit iiiado i>y p;ii-ly. Si'c Insolvent Act. Mi-Tji'^'I v. DDinrill'. Aiion — Kvi«i«'inM« of Itoiiiy^ one. S'' ■' Alien. A]>|>(>',il — l']%i(ioii pi'odiKMMl — Evaiiiiii'.itioH licfoic ^laoK'i— (ouit not iMMind to h«*<» it— Wiieiii S'l Su[)reme Court in Eiiuity. I ii*>taini><>al>i(> l>y corlifiod copy. Sr> Biuikru[it 2. Bills oi «>\4Jianu:<'. .S'<(' liiils and Notes. Ify-Law-lliisl IM' prov4Mi. Si'i' By-Laws. Clialli'l-I nr«'ai«.lt'iod xiiip -i««'v<'«»JiHif ot posMsMoii. Sn Sliii>i)ing Law G. EVIDENCE. 595 c tiiv Court— .liio«iilioii d«' Deed IV. (rowii tfiHiil—BoiiiMlariosi— Linos. •Sfv Crown Cirant. < II0.IOIII duties— Ciioo(l-Ackiio\vl4>(l;fiii«>iit— Exenitioii. .s, r Deed I. DtM'd of llsi'^H'r ill C'liaiici'ry— Prima (sicie evidence ot |M'ooee>. Sn Deed I. 17. D<'c^l*>ti'y Itook— One registry ol two deed«> on ^im<- paper. .^'(Dei'd I. 28. Ptu'istrar may be called to prove day of registry and that certiticate of acknowledgment was upon deed at that tiuk. Iinr V. I'm, 5 .-1/^. 540. That party was Registrar of County where lands lie niayl.e -shewn hy extrinsic evidence. Sec Deed I. 4'2. Deed Registry Book best evidence of registry of deed. S-v Deed V. 1:5. ' D*'('(| ol>)|i<>i-iil— K<>eilal of 4»llieriiiduiiioiit««— Proof not iM'<'r«»!»ar>. ^"' Sheriff's Sale 1. Deed receivable in evidence as part of res iiestce without proof of judtrment or execution. Scr Doc v. Bdxtcr, 4 All. l>o(k«'i orjudtfinent. Not necessary to prove docketing of judgment, under claiu] by virtue of Sheriff's sale under execution. *SVt' Ihte 'hn.Bnrh,ic v. llitjU'hl, 1 KcnWl. «96 EVIDENCE. Foi'ci|?ii law— Written lau^ liow proved. See Foreign Law. Insiiraiicc— Prcliiiiiuary proof. Sec Insurance 38. Insurance— Waiver of prooTof iosiii;ue— l^vidence adinissihie to pr4»ve d<»iiblliil con- i>-act, but not to contradict one that i iilniii. Sr,/ Mfdircni V. Proviiieial Insiiruiiee C<>. I .1//. J4. Voliiittary 4'oiiveyaiice. Si'c ])eed II. V. Parol Explanations. I -<'ontent«» ol d<>e
  • iit— Refoieiire to arroiiut. I'tt'indant agreed, in writing, to deliver plaintiff a quan- tity ot logs, for which the plaintiff agreed to pay him, after payiiiu the amount of the defendant's account due the plaintiff, at the rate of sixteen shillings per thousand feet. llii'l in an action on this agreement, That parol evidence was admissible on the part of the defendant, to show what the account referred to in the agreement was, and to idHitity an account rendered to him by the plaintiff, as the account so referred to. Ih'sBrisaij v. Gleiirross, 1 Ilan. IOC. •^ W lilH'ii LcHKc— Lot to bo o(Cii|»i4>«l. ^Hkiv a written lease of a farm excepted a part of it, 598 EVIDENCE, ii|M, described as Lot No. 2, parol evidence is inadmissible to shew that it was agreed between the parties at the time of the bargain tliat the tenant should also occupy Lot Xo. 2. McElveny v. McKiUijinn, 1 Hfin. 322. 6— Sliorifl'sf>lti<>l■t in \vi-itiiim. Plaintiff and M. built a vessel, of which defendant it- canie master, purchasing a sixteenth from M.and a sixteenth Irom plaintiff', which he did not pay for. The vesst-l b-in^' in difficulties at Boston, U.S., and 81,240 due defendant fir wages, he, in consideration of S 1 ,000, by deed of sale transiei- red to plaintiff' all his right in the vess'.'l, an^l releasi^lnil claim on account of wages. Ilehl, in an action to recover tlie price of the sixteenth. That parol evidence was aihnissiUe to i>rove that plaintiff, at the timr of the .leed ii-iim executed by defendant, v- rbaily agreed to renounce all claim to the purchnse monev. IJuiiUji. v. Smith, i Ilmi. ,"),s'j, M— ^ali> of \Vlisii-t'ii;io— Written ('4»ii^:isti-iii-. A ctrtificate of the Registrar is sul'tieient, even though lie does not ceriify that he was the Registrar of the county in wliich the lands lie, or that the deed was registered in iuch county, and that it could be shewn by extrinsic evidence that he was the llegistrar of the County. l)"e ih}it }lfKt'n~'u: V. Mo.sJu'r, '2 /'/(//. ;J55. 10- I'oliry of Iii*«iii-aii4't>— \Vsii'i'iiiiti<><^— Vi'iltal .\;;i'«'*'- iiiciil <>siiiiiot vary. Defendants issued a Policy of Insurance to plaintiff, insuring his dwelling-house against lire. One of the con- ditions of the policy recjuired that " all apj)lications for insurance must be made in writing pre[)ared by an authorized agent of the Company, and signed by the apidicant, or by his authority; and all statements con- tained in the ap[)lications will be taken and deemed to be ^varranties on the part of the assured." In plaintiff''s ap- phcation for insurance he stated that the size -of his house Mas 'iSx^O feet; that it had been built only about six years, and that it was painted inside and outside. In fact, the »!Zrof the house was 24x29 feet; it had l)een built about tliirty yeara, and was only painted on the inside. The house, having been burnt, and an action brought on the policy, the Company pleaded these mis-statements of the 600 EVIDENCE. plaintiti' as an answer to the action. The plaintiff in reply to this, pleaded that the Company's agent applied to bim to insure, that he was absent from home at the time and did not know the exact size of the house, and so stated to the agent, who verbally agreed with him that the state- ment in the application should not be conridered a war- ranty of the size of the house, and that if it differed from the size stated in the ai»plication, it should not be con- sidered a mis-statement. There was a similar statement with regard to the length of time the house had been built with this addition, that jjlaintiff stated to the agent that he believed the house had been built twenty-five or twenty- six years, and also that he had stated to the agent that the house was painted on the inside only. Held, on de- murrer. That these were no answers to the defendants' pleas ; that by the conditions of the policy the statements of the age, size, &c., of the house were expressly made warranties, and that the written contract could not be varied by a mere verbal agreement. Dinger v Arincnltu)\d /»«. Co., c^T., 3 Pun. 80. See also Insurance 42, 44. — Martin v. Mutual Fire Ins. Co. — Biuifior /«.s. Co. V. McLeod. 11— Eiitri(;<<« in books ot accoiiiii. The fact that the plaintiff charged the goods in his books and made out his bills to the person who got them is not of itself conclusive, it could be shewn that the credit was given to another. Sniitli v. Andreirs, 1 P. d- B. o41. la Entries in books of account are not conclusive against the person making them, but may be explained. Raymond v. Cuniniiniis, 1 P. tC- B. 544. 13— Sale of laii«l— Ideiitifleatioii. Defendant by writing addressed to the plaintiff stated that he would "take property" and give his notes for a cer- tain sum — plaintiff wrote on the same paper that he could not sell" property" but would "re-deed to H" and take notes for a certain sum, specifying the time of payment; to which the defendant agreed. Plaintiff proved that II . EVIDENCE. 601 b;id coiivtyed to him the equity of redemption iii a certain htomty.— Held, That thissiil'ticiently indicated the proper- tvreferrtnl to in the agreement; though if necessary, parol tvidonce wps admissible to show what property the agree- ment related to. PiKjsleij V. Gillespie, 1 Piuj. 195. §ck>iitur« Offering to prove the account which defendant's family fave of way in which dog came to bite. See Evidence, 111.30. Wilmotv. Vanicart. Parol Evidence not :ill4>%v<'vidence ail»le to slicw what property ai;i'ec>nient related to. See Identity. Pucjsley v. Gillespie. VI. Presumptive Evidence. See Presumptions. l-!>>iirro^::ite— person aeting^ as such. It will be presumed that a person acting as Surrogate liastcakon the oath of office ; but if he has not, his acts will not be invalid if he has been appointed to the office. i'rookshank v. McFarlane, 2 All. 544. '.^-\('ci>*«>«:ii'y atlidavit— Court confirming;: Certificate. It will be presumed that the Court of Chancery in con- lirmiug a certificate, acted on a sufficient affidavit of the Ijaiikrupt, as required by the Act 6 Vic. cap. 4, sec. 25. Mui-mmt V. Alhee, 2 All. 145. :t-:flarria^:c— Commissioner's ActSi In an action for erim. con. the fact of the plaintiff's mar- nagt; may be proved by any person present at the ce>dmo- iiy, and if performed by the Commissioner under tlie Act of Asstmbly 8 Geo. IV, cap. 9, it will be presumed (at least in 38 602 EVIDENCE. the absence of proof to the contrary,) that ho was actiiv within his caiithority, and followed the requisition of the Acts as to the notification and form of the solemnization. Montgomery v. McLcod, Ber. 375. The original certificate of marriage filed with the Cltrk of the Peace, as directed by the Act 52 Geo. TI. cap. 21 may be given in evidence, without calling the subsciibin" witness. Mimtgomerij v. McLeod, Bo: 375. '1— Pi-iiiisi facie pi'ool of ^llarriage. The land in dispute in an action for trespass, was granted to A. The defendant claimed under a deed from B., and in order to prove that B. was a daughter of A. called a witness, who stated that he knew A. and his family — enumerating them — and including B. as one of the daughters : the witness was not cross-examined. Habl, Sufficient i>r?»(a/(orafioii— l*crc- retary» The Act 7 Wm. IV. cap. 54, incorporating the New Brunswick and Marine Assurance Company, required that policies should be subscribed by the president and counter- signed by the secretary. Held, That a policy so sigued was valid without the seal of the Company, and that evideni e of these persons having acted as president and secretai/ vfnaimma facie evidence of their appointment. Dimockw New Brunsivick (tnd Marine Assurance Company, 1 .1//. 398. O— Pcr«)Uii |»i'acti«>iiiig a<« $!>Hi-g'coii. Evidence that the defendant practised as a surgeon is sufficient proof that he was such, ^'ec Kdiy v. Doii:, 4 All. 435. 7— Rebuttal ot presuiiiptioii— Payniriit of debt— Oiiiis- )!>ioii ill Scliediiie of milarity of ProriMMls. S<:e Sheriff's Deed 2. §-Sliei'ilt%4lco4l more lliaii twenty years ol). Where the defendant knew all the circumstances, and might have been called as a witness to shew the exact ijuantity of the property in dispute which came to his pos- lession— 7i('/r/, That it was not a mis-direction to tell the jury they might infer that if the defendant had been called, bis evidence would not have benefitted his case, — an infer- ence, though slight, that the whole of the property in dis- pute came into the defendant's possession is much strength- ened by the fact that it was in his power to show the exact amount, and that he has not done so, and the jury are thereby warranted in adopting such inference. TuJ'U v. Hatheimj, 4 .1/^ 62. »0-Absence of evidence by defendant. hi »n action to recover the price of logs, the plaintiff, in order to prove the quantity received by the defendant, #i 604 EVIDENCE. shewed the averiige size aiul niimhor <"f logs put iu and driv- en down a stream, at the mouth of which defendant had a saw-mill, and that the defendant had sawn a portion of them. Held, in the absence of any evidence by the defend- ant of the quantity he had sawn, That the jury wore justi- fied in presuming he had received the whole quantity driven down the stream by the plaintiff. Leslie v. Uanson, 1 7/r//<.2()3. It— C'oii«lii(l ol |»:iiiy— liiipliiMi recognition. A recognition may be implied from the conduct of a party, as where knowing of a warrant of Attorney and judgment against him, he allows them to stand for three years without objection, and continues to deal with the plaintiff on the security of them. Ilutdiinson v. Johnston, 4 AIL 40. Vi—ltigUt oCwsiy— Pi-cfiiiiiiiptioii of deed. To sustain a plea of right of way by lost deed, no proof is requisite of such deed having actually existed, but the jury have a right to presume such deed from long and un- interrupted usage of a way exercised as a matter of right, and necessar^^ to the convenient enjoyment of the land to and from which the road leads. Jones v. Jones, 2 Kcn\%5. 13— M;i!slei- and «>4'rvaiit— I'ayiiieiit ot |»as<>iH^;v money lroiiitraveiiei'<«. No presumption that same was paid over in ordinary course of employment without proof that such was courst of dealing. See Ixae v. Melieath, 3 A'c>'/-44G. 14— Issue ot" IVi'il. In the absence of evidence of the actual time of issuinj,' a writ of nies)ie process, it will be presumed to have issued on the day it bears date. Pomeres v. P)vviiicial Ins C-IJ;fIit and air— rresniplion— I'ser Piesimiplioii of giant -Kno\vled;,M> of owner ol adjoiiiins '»'"• necessary. No grant is necessary to authorize a person to put EVIDENCE. GOo windows in a house on his own land, and if the owner o the adjoining land allows the light and air to pass into and through them uninterruptedly for a period of twenty years, it will be inferred from such non-ohstruction for that period of time, that the adjoining owner has consented to the en- joyment of such light and air, and for the purpose of quiet- ing the title, a grant of the right will ho presumed. How- ever, no such grant will be presumed unless the owner of the adjoining land, and those through whom he claims his title, ' .yew or had the means of knowing that the light and air were being so enjoyed. Rinri v. PtKjHleij, 2 P. lO B. 303. Sec Now Consol. Stat., cap. 81, providing that no right of user of light or air to be acquired by prescription or user. 16— ((iH'Htioii for .liid^c not jury* The question as to whether or not the grant is to be presumed, is one for the judge and not for the jury. Ibid. l?-i*r<"»iiiii|»ti4>ii iri'c*«i»(M>tivc of proof to the contrary The presumption of a grant is raised entirely from the fcK't ot uninterrupted possession of twenty years, unex- lilained and unrebutted, and will be raised although the owners of the adjoining lands testify that they never gave a grant, and although the records shew no grant. Ibid. l!<)— \o iH-osiiiiiption when owner cannot resist. When the owner of the adjoining land has no means of resisting the opening of the windows, or of obstructing tlitm afterwards, no presumption is raised against him. Ihid. HJ-C'oiivoisations— Evidence. The defendant, subject to objection, gave evidence of a conversation between Air. Burns, the person through whom lie claimed, and Mr. Adams, tlio person wlio owned the house in which the windows were opened, relative to their opening, which conversation took place after Burns had parted with his title to the lot in question. Held, That the conversation could not be admitted in evidence t ) atfect the case. Ibid. fiOC) EVIDENCE. i 1 20 -l>iiilillK<'H. In an action for obstructing tlio plaintiffs lights, a fair meusuro of damagcH is the cost of making such alterations on tho plaintiffs liouso as will be necessary to ubtiiiii tli.' same quantity of light and ' ■ as he had enjoyed before the ol)struction. Iliid. *il— .4fl«>i' ii('4|iii>'<'iiy- AhMroiKliii^ ilobtor. Proof that an absconding debtor had property subse- quent to the issuing of a warrant against him, does not raise a presumption that he owned it at tho time the warrant issued, ('alien v. P'o.s.s, 'J I'i((/. 101. tttt— illoiiM |{4>:i. If a man knowingly docs acts which are unlawful, the presumption of law is that the incits ren exits ; ignoraucf of the law will not excuse him. Hciiiud v. M lilloux, 3 /'///. 404. 23— Wilholdiii^ f:vi(l(>iicr "Where a ])arty has it in his power to give evidence of a particular fact and does not give tho best evidence witiiin his ruach, the presumption onghtto be against him. Ihi/jfix V. MrBride, 1 ]\ iC- B. CAV.]. Defendant entitled to benefit of doubt, where plaintiff leaves matter in doul)t. >SVc Absconding Debtor 17. Ctdkn V. I Ofss, '24~Ij«'tt<'r— liili'stal*'— <"l:iiiii lor Wa^cs. In an action for wages due the intestate as masti-v of a ship a letter written to him by the owner, offering; to employ liim at a certain rate, is evidence of tho rate of wages ; and it will be presumed that the offer was accepted and acted on by the master. DoniKtn v. Anderson, o .1'/. 215. 23 — IrVill— ■iit<>i-liiio:itioiiM iii. "Where interlineations appear in a will which are not noted, after a long lapse of time, a strong presum[ition may be raised that they were made l)efore or after the EVIDENCE. 007 execution of the will, according as tho possession, title, Sca.^ have run, and as the parties interested appear to have acted. Docihin. MrVctj V. Daniel, 2. Pun !)72. >itt Loss ol Vosixiol. A vessel insured from the lOtli March, 1808, to tlio 10th Marcl! IftOO, sailed from S. the last of Fehruary, 1809, on a voyage to C. The i)ilot left her at L. proceeding on her voya;;t', I'ut she did not arrive at her port of destination, am] iiuvt. was Heard from afterwards. About i\u^ same time she le;"i S. another vessel sailed from the same port on a like voyage to C, and on the 0th and 7tli of starch cnroiintcrrd an unusually severe gale, after which the weather moderated and continued so for the remainder of the voyage. Held, Evidence from which a jury might pre- sume the vessel msured was lost before the 10th March. Pomnrcs V. Miiias Marine Ins. Co., 3 Pn;/. 245. !{?-li.ii'4-tiii('iit— .liidjlfiaeiil, Ac, ill (oi'iiier Miiit— 'Wruii^- 111 an action of ejectment, the lessor of plaintiff put in evifionco a declaration and judgment by default in a former ejectment suit brought by him for recovery of the same premises against Richard Eoe, the now defendant being the tenant in possession, and showed the issue of a writ of khfirfiinas, and its execution by the Sheriff, and the turn- ing of defendant's wife and family out of possession. It was also proved that the lessor of the plaintiff thereupon leased the property to defendant's wife, and subsequently made with her an agreement to sell to her for a price named. She only paid some small amount, and the lessor of plain- tiff demanded possession from defendant's wife, and brought the inx'.sent action. No evidence was given to connect de- fendiint with the lease or agreement of purchase, nor was it sht'wn that he lived on the property, but it was proved that on one occasion defendant's wife told the lessor of plaintifi' that she and her husband did not live together. UiU, per Weldon, Fisher and Wetmore, J. J., That as the judgment and execution of hahcrc facias' in the former i 6C8 EVIDENCE. suit, and the lease to defendant's wife, and agreement for purcliase proved possession in the lessor of plaintiff, and as defendant, by the consent rule, admitted he was now in possession, he must be presumed to be wrongfully there, and that the lessor plaintiff was entitled to recover; but per Allen, C. J., and Duff, J., that defendant was not estopped by the lease to his wife, and the burthen was on the lessor of plaintiff to show that she was acting under her husband's authority. Doe clem. Beveridrjc v. Henderson, 2 Pug. 16. 588— LiCtlei— Aiiibis"ity. If language in a letter is ambiguous, it must bo con- strued most strongly against the writer. Sec Accord, etc. 2 Weldou V. Vaufiluoi. Doubt i-aisod l»y Evidoiii'c — [*ro«»iiiii|>tioii that iiotr was ;;^ivoii in nccordaiicc with a^i'C4*iii<'iit svt out in (ItM'iai'atioii. Sec Pleading I. 26. l\o AdcniiiistratioEH Roiid ~Pi'4>sii)ii|>tioii that no iul- ■iiiuistraticKi ^i'aiiteol. See Exei.'utors and Administrators IV. 1. Attoi'Bioy—AsitliofJty to i^iie Exet'iitioii. See Attorney V. 4. Ki'-siirvoy ofLuiiibcr— pref^iiined to he made accovdiiis to Act. Sec Ran kill v. Einerij, Ber. 330. IJiihiivlul Aet— Knowledjfo—Itlaster and owueiol SJii|». See Principal and Agent. 22. Letters I'sitent— Proper is>iiie o(. See Corporation 0. Pnhlieations in newspaper -Authority. See Joint Stock Company 3. Commission to examine witnesses— Presuiii|>lio» s'"'"' /See Infra IX. 2. EVIDENCE. 609 |>i(>>>iiiii|>ti<>ii tliat Payee ha<1 given iiotieeof <1isli»iioiii' ol bill. Sec Bills and Notes IV. 2. Oiiiiiia Pro<^iitiiiintiii' coiili-a Mpoliatoruiu. Sec Infra XL 45. Smith v. Lnnt. <^(>al o('C'oiiiinis§ioit<>i's taliiii;i: de|»0!>iitioiis. See Evidence IX. 11. Commissioners of sewers appointed under Act of Assem- bly acting in that capacity is prima facie evidence of being commi>^sioni']'s ;i;id of regularity of assessment. Sec Will. A'(/(/;)]) V, Kiuij. *»iiiiiiiiary conviction for iiiilaMTiii assaiilt-complaiu- Hiit atfcixiiii^ on i»rose:;ntioii— intendment tlint prayer to proceed ^^nniinarily \vaoe dem. (iilmouV v. Whitihy, Ikr. 339. 3-Lioeiise to sell Land— Copy. A license by the Governor in Council to an administra- 610 EVIDENCE. tor to sell laud, granted under the Act 2() Geo. III., can. 11, need not he under seal ; and it may bo proved Lya conv from the records of the Council, certilied hy the Clerk of the Executive Council, under the Act 21 Vic, cap. :j, soc. 7. C((ii;ilifij V. IniiKin, 5 All. !30*J. 4— Inventory— E\iiiiiiii4>;S «'o:y. An examined copy of an inventory, filed hy the iulniinis- tratur in the Kegistry of the Court of Prol)ates, piu'snant to the Act of Assemhly ;) Vic. cap. (U, is admissiblo in evi- dence, and the original need not h(> pn)d\icod. Cmilifj'r \, More!; 'iixf, 2 Kerr 811. f'S— Alii ilavil - l^xcuipliliriitioii. Ill an action ' v a malicious arrest upon a bailalilo capiat issued out of this Court, the al'lldavit upon which the writ issued having hei'u filed, may be proved by an cx- eni[)lilication under the seal of the Court ; and [)roor of the. defendant's signature to the original atlidavit is not neces- sary, if it appears that the arrest was made by his pr >- CiUTuuMil. W'cnfirortli v. I Lillet t, 2 Kerr otiO. «— Siiiroyalo s l»ook— I'rivalo oiitry. An entry of the grant of administration in a book kept by a surri>gate. which is stated to be a private book, is only secondary evidence, and thcrt'l'ore not adiuissildc without proof of search fm* the betters of ndministi'ii.tion. /^k'V. lie'ul, lAll.:n. "7— .linlyi'N \ol«>s. The Judge's notes of the testimony of a witness since deceased, arc evidence in a subsecpu'ut trial of the sa e cause to provi' that witness's testimony, thougii the secoiul trial is before aditferent Judge. /)<»>' v. Miimiii, 1 .1//. 'ibi » The evidence of a witness who has left the Fi'ov- iuce since a former trial between the parties, may he read from the Judge's notes. Abel v. Li'iJif, (5 All. 123. 9— :\olH r lo ProdiU'o— TiiiU' IttMOid liiipvoiMMlj held. In an acti)n of replevin, both parties fded M'^i /''"' recoi'ds. The cause was tried on the defendant's record, EVIDENCE. 611 and the plaintiff obtained a verdict. Tlio Clerk of the Circuit, by mistake, indorsed the i)()HU'.(t on the record filed IJV the plaintiff", and },'ave it to his attorney : the de- fcndant'H attorney afterwards f);ot tlu; other A/s/ Pnm Kconl. In an action of asauniijsit afterwiirds brouj^ht by the defendant in the replevin suit aj^ainst the plainlifT, it kciime necessary, in order to admit, from the Judge's notes, the testimony of a witness examined in the re[)levin suit, to prove that trial : notice to produce the .V/.s/ Pr'inH record wliich had been given l)y the Clerk to tin; dcfend- nnfs attorney ( the plaintiff's attorney in the present ac- tion) was served on him about seven o'clock in the < ven- ing previous to the trial, but he, objecting that the notice was too short, refused to produce it. Ilchi, in thti absence of any al'lidavit from the attorney explaining why Ik; took the record, or why he could not produce it, That the notice was sufficient — the record being improperly in his possession ; and that, under the circumstances, it was his duty tf) use more than ordinary exertions to rcsturn it to the; Clerk. Ms.Lvjhl, (\ All. 42B. 10 Quicrc, Whether a co[)y of a notice from the plaiutitrto defendant, complaining of delay in furnishing Certaiu materials for a bu'lding, was admissible in evidence without a notice to produce. SiikiU v. McCnlloiuiJi, 3 A U. 181. II ScDihlc, That a notice to produce " all papers, memoranda, receipts and accounts f^ettlcd relating to this suit,"' is not sniUcient to let in secondary evidence of an unsettled account. Sec JlnHc v. Li)is tr:iiis<-ril>4>«l <'4>iit4>iits of liO^s. Logs were measured as they were sawed 'u\ a mill, and their contents marked on a board by the persons who sfiwed them. At the end of each week, the figures on the board were transcribed into a book by a person who had luadi.' a part of tlic measurements, but who could not t(ll, from the character of the figures on the board, what p(U'- tion of them was made by either of the other jiarties. Held, That the book was not evidence to prove the (juanti- ty of lugs sawn, without calling all the persons who had measured the logs. Leslie v. Ilnit^nn, 1 II, in. 203. 612 EVIDENCE. : 1 m 13— Payment iiimIci* written a;j;^reenieut— Prodiictiuii of a^reeiiieiit iieecs)!«ai'y. One item in an acconnt of money paid by the plaiutilf for tlie defendant, appeared on cross-examination to have been paid under a written agreement by the dei'endaut to deliver goods to the plaintiff. Held, That without produc- tion of the agreement the plaintiff could not recover on this item. Ilarley v. Goodfelloic, 1 Ilan. 335. 11— Lows of *«tiiiioiiy of \vitiic— Proof of. Where the plaintiff had been examined as a witness on a former trial respecting the same subject, it is necessary, ill order to prove his testimony, that the witnesses should swear to the words used by him, and not merely to the ttleet of them, trascv v. Black, 2 All. 312. {Sec Infra. Vill. 17.) '■J'i-AbsoiHT ot'attostlu^ \\itiio$*«— Hand writ iii^. ^\iietlier due diligence has been used to discover an attesting witness must depend upon the circumstances of ^acli case. Cnuu v. Aijre, 2 All. 577. t 614 EVIDENCE. Where the attesting witness to a bond left the plaintilfs employment in the country fifteen years l^efore the trial and went to Saint John, and about two years afterwards told two persons of his acquaintance in the country that he was going to Australia, after which neither of them had ever seen him, though one of them had resided in Saint John for three years afterwards, and the other \\as there frequently, and there was no proof that the witness had been in the Province for thirteen years. HtM, SufScient presumptive proof of his absence to admit secondary evi- dence of his handwriting. Ibid. 23— Eiectiiiciit— Title iiiidci* a^^rcciiiciit— Piodiietioii necessary. Where a plaintiff in ejectment proves no documentary or possessory title, but relies iipon the estoppel arising from his having let the defendant into possession of the land, and it appears in the plaintiff's case that the defend- ant took possession under a written agreement; the plain- tiff cannot recover without producing the agreement or giving secondary evidence of it after notice to produce. Doc V. Blanche, 3 .4/^. 180. 21— Repelling: imputation. On the trial of an action for breach of promise of marriage, where plaintiff gave evidence of her seduction by defendant, the latter, by his cross-examination of plaintiff, attempted to shew her unchastity before her acquaintance with him. Held, That this gave her the right to repel the imputation involved in such cross-examination, not only by her own evidence, but also to vindicate her character by other testimony. Burke v. Scribner, 3 Pag. 052. 2'1— Insurance loss.— Copy report of. A report of the circumstances of a loss under policy of insurance, made to the defendants by their agent, a copy of which had been given to the plaintiff is not evidence without notice to produce ; and qiuere, Whether it would then be admissible ? Duify v. Stymart, 5 All. 197. T EVIDENCE. 615 ■J6-Witii««« !<«. The testimony of a witness, since deceased, given on a former trial between the same parties, may be received in ividence from the Judge's notes, though the suits are dif- ferent, provided the question in issue in each is substan- tially the same. Bennett v. Jones, 5 All. 342. i^intciiiciit of aflnii'«ii by (1<'litor to croditoi'— Copy iiiai'<>§eiic*c of debtor. Sec Supra I. 12. Lcase-Diiplicatc oi-igiiials— Primary evidence. See Evidence IV. 5. VIII. Examination of Witnesses and Evidence on Tkial. l-i<(>ltiitt:il ol Testimony. A witness for the plaintiff denied on cross-examination liaving made a statement in presence of L., who was after- wards called, by the defendant, and contradicted him. Held That the plaintiff might call evidence in reply to rebut L.'s testimony and confirm that of his own witness ; such evid- ence not being properly part of the plaintiff's case in the first instance. Whclplcy v. Riley, 2 All. i The defendants in trespass justified entering, under the Act 13 Vie. cap. 4, as Commissioners of Highways to lay out a road through the land, and proved a return of the road sufficient upon its face. Held, That evidence of txcess in laying out the road wider than the law allowed, must be given as part of the plaintift''s original case, and wag not admissible as rebutting evidence, Doicning v. Gault, iAlim. (jnierc, Whether evidence of a person not present at the laying out. but who afterwards examined marks on the trees where the road was laid out, is admissible to prore txcess ? Hid. 'l-*'alliiig witnesses in reply— Surprise. Plaintilf and defendant owned adjoining lots in the city ? 616 EVIDENCE. of St. John, the question was, whether a celhir wall runniiii' at right angles with the street on which the lots fronted was wholly within the bounds of the plaintiff's or the de- fendant's lot — the breadth of the wall being the land in dispute. The defendant's witness was asked on cross-ex- amination, whether after a fire which burnt the houses on both lots, B., under whom the defendant claimed, Iiad not employed F. to remove a stone wall adjoining that in dis- pute. //(,'/(/, That the Judge was right in allowing tlit plaintiff to call F. in reply to the defendant's case, and that the admission of his evidence was not such a surprise on the defendant as to entitle him to a new trial. Admns v. Fevjjuson, 4 All. 102. 4 Where a witness on cross-examination, denied ;!! having signed a paper, but which was not then shown to him, and the opposite party afterwards produced the paper, and gave evidence to prove the witness's signature to it; the witness may be re-called to disprove the signature. Tompkins v. Tibhits, 1 Han. 317. •'S— Rc-c>\iiiiiinatioii of witness as to statOBiioiits ron- ccriiiiijL; matter involving; poiinlty. Where a witness called to prove that the consideration of a note was usurious, declined to state what amount lie gave on discounting the note, because his answer might render him liable to a penalty, but on cross-examination said he gave what he thought it was worth. Ildd, That he was bound on re-examination to state what he gave. I'licn V. I)is]t, 4 All. 326. 6— Proving jHstilicatioii on cioss-exaiiiinalioii ol plaintiff's witnesses. The defendant has not a right on the cross-examination of the plaintiff's witness, and before the defence is open, to prove a justification of which he has given notice, and the aftirmative of which lies on him ; no question leading to it having been asked on the examination in chief. Atkinsox V. Smith. 4 All. 309. ! n T^ EVIDENCE. 617 : - FiiyiiK'Ht— Scl-oir. A defendant cannot prove his set-off in plaintiff's case, l)iit a payment rests on a different footing, and in the alisence of any evidence of appropriation, the law will l.nmdfdcic apply it tothepaynient of outstanding indebted- ness; and a defendant has a right to shew payment on cross-examination of plaintift"s witnesses. Frcdericton Pumm Co. V. McPliersnn, 2 TLiii. 9. •4-I'a|M>i- not ill ovi4lcii4; iiiipi'isoiiiiK'iit— Policeiiiitii iiitikiii^ ai*i>c«il— \skiiiK qHOii «iiai(>> iiieiit. It is discretionary with the Judge at Nisi Priiis, uiKlor the power given by the Act 11) Vic. cap. 41, sec. ]G, whether he will allow a witness to be cross-examined as to the con- tents of written statements made by him, without the writ- mg being produced. Lawton v. Chance, 4/1//. 411. 11 It is discretionary with a Judge at Xisi PniiH to receive evidence at any time during the trial. Stiles v. lirewster, 4 All. 414. {See New Trial III. 35.) |.2 May admit evidence even after the counsel has addressed the jury, and the Court will not interfere if the evidence is not in itself inadmissible, or no injustice has been done. Doc v. Connclli/, 3 All. 337. K«><;alliii;i: wUik'^m— l>i*>icrc'tioii»ry witli .liidjU'c. Sec County Court 4. 12 it — Livery ol^ei^tiii- l^vidciire after <-lo*«(' of'ciiNC. A deed was put in evidence without objection as a registered deed, but was afterwards discovered not to haw been duly acknowledged, whereupon the defendant's coim- sel objected, in his address to the jury, that it did not give livery of seisin. Semhlc, That the objection was not too late ; but that in such a case the judge might allow the opposite party to give evidence of livery of seisin. Scrihner v. McLaiichlan, 1 All 379. 1 3— %Vitli«lra\viiij; evidence'. It is discretionary w'ith the judge at the trial to allow the counsel to withdraw evidence. (Per iiitchie, C. J., where evidence is pressed in against the opinion ot the Judge, the counsel must stand by it.) I'clton v. Tciiqil; 1 Jlan. 275. EVIDENCE. 619 Il-{§ci(>iiti(i4' %vitiiCMs. A scientific witness cannot be asked questions, the answers to which are based upon previous evidence given liv otlier witnesses, and upon which conclusions are drawn which are for the jury to determine. Sec Key v. Tlioimoii, •2 Uan. '2-24. l.'i-Pjiiij to !«*iiit— Hostile iviliies**. Where one of the parties to a suit is called as a witness bv the other, it is discretionary with the Judge to allow him to be examined as a hostile witness, and to restrict his own counsel to the style of an examination in chief. The opposite party on the record is not necessarily a hostile witness, his conduct on the stand is the proper test. Atkn- sun V. Atkinson, 5 All. 271. Ki-Dilicreiit siateiiieMt— Proof of— Tender of evuleiice —Time. It is not competent to prove on the cross-examination iif a witness, that he has made a different statement rela- tive to the subject matter of the suit in his examination in iiaukruptcy in England, without producing the original proceedings in bankruptcy. Caniphelly. Gilbert, 5 All. 420. If, for the purpose of affecting the credibility of a wit- ness (a proper foundation having been laid) and shewing thai he had made a diflerent statement on a former occasion. Qiuere, Whether a duly certified copy of his lamination in bankruptcy would not be evidence '? If so, the evidence should have been distinctly tendered after tlie close of the case in which the evidence sought to be con- tradicted was given. Campbell v. Gilbert, 5 All. 420. :? -DUciTdiiiii^: WitiieiiiiS— Stuteiiients on former trial -Prool of. A plaintiff examined as a witness in his own cause mav 1 ' asked on cross-examination for the purpose of discredit- "M him, whether, in giving his evidence on a former trial 1' lating to the same matter, he had not made certain state- ""^^uts respecting it without proving by the record that a iA,A,L±j^Uttm 020 EVIDENCE. former trial took place. And where lie tlcnied makiurr tin. stiitemont, a person who lieard his cvidoiico on tho former trial, and took it down in writing, so far as ho wus abl.), may ho called to contradict him, if ho can speak positivilv as to tho statements denied hy the plaintiff, tliou),'h liu di,! not take down tho whole of his evidence. (See No. 21.1 Biijson V. Hamilton, East. T. 1873. I§— I'ai'ty |»i*oi'» wii croMH-oxaiiiinsili I'apers proved on cross-examination are to bo treated as the evidence of the party producing them. Cvuu' v. Clarke, Hill. T. 1828. If) — Itocalliii^ WitiicKx. Where on the tria) if an action against one of tlii. snretios in a hond given hy a Deputy TroiiHuror, ih' Treasurer was examined as a witness on the part ot tie Crown, and on cross-examination, proved a number of lettirs written by him to the Deputy, — partly relating to offi ;ial business, and partly to private transactions and land spec- ulations in which they had been engaged, and had suffen I losses, — from which it was intended to be argued by tL ' defendant that moneys received by the Treasurer tiiiintii' Deputy and carried to his private account, were iu fact Crown moneys, and should havo been so credited; a' 1 these letters were afterwards i>ut in evidence by the de- fendant. Held, That the Treasurer might be recalled by Crown, after tho close of tho defendant's case, to I'xp'ain the transaction, and to pr ' *hat all moneys remitted by the Deputy on n o' [ of the revenue, were duly credited. lleyinav. Ki .roiidaiif'f>i \ritii4'«>is— Contradicting by plaintiff t'oiiliriiiin;i^ pluiiitillS case. Evidence is admissible to contradict a statement of a fact made by a witness for the defendant, though the effect of such evidence may be to confirm the plaintiff's original case. The time at which evidence is admissible is in the discretion of the Judge. He.avii v. Odell, 5 All. 524. 2'^-('oiiu«*ol. Where a counsel in a cause is by consent allowed to go upon the stand to prove a particular fact, he becomes a witness in the cause generally, and may be cross-examined upon any fact ni the cause. G'dhert v. Campbell, 2 TLin . 55. 'i<>-L(>a<<«o— Production necessary* In an action of trespass for cutting down a mill-dam, tue plaintifl' relied on, and gave evidence of possession only. On cross-examination, he admitted that he held the pro- perty under a written lease from G., and stated that he m m f)22 EVIDENCE. was bound by the lease to keep the premises in repair. IMd, That the plaintiff was bound to produce the least, to enable the Judge properly to direct the jury as to the erteet of it, and as to the amount of damages which the plaintiff as tenant, would be entitled to recover. Betts v. Vcniindj, 1 Pufi. 267. 27— Examination of defendant— Recalling:. If the plaintiff calls and examines the defendant as a witness, he is not, when afterwards examined as a witness in his own case, to be treated as a recalled witness ; but his counsel has a right to examine him, and to prove his defence as fully as if the defendant had not been previously called as a witness by the plaintiff. Ibid. {See New trial IV. 11.) Defendant^jii Counsel ci'0!s>s-exaniining' ou iiinttcr— Ohjeciion made at opening: or case. See New Trial II. 15. 9§— Rcbnttal of immaterial statements- cvit<«cssioii o( — Ailiiiissi- bility of a«« ng;aiiist dcrciitlaiit or iii-^ partner— withdrawal from consideration j>f.inry— IVcgicct to do so. In an action brought by plaintiff against defendant fw breach of agreement not to go into business for a certain time, by reason of which breach plairtiif claimed he had been compelled to pay a higher rate of wages, &e., it was held that a paper purporting to be a scale of wages paid by defendant's firm, and found in plaintiff's work shop, and which was stated to be in the handwriting of defendant's partner, was properly admitted in evidence : and that the defendant not having previous to its admission called wit- nesses to prove that it was not written by defendant or his partner, and not having afterwards, when this was proved, moved to have the paper withdrawn from the consideration of the jury could not avail himself of its admission as a ground for a new trial. Whittaker v. Welsh, 2 Piaj. 43G. 3'i-Rcbiiltai orevi«1cncc. Held, also in same case that where defendant in crois- examination was asked if he had not made an admission to T. of his agreement the breach of which was complained of, and denied it, it was competent for plaintiff to n-but this evidence by shewing defendant had made the admission for the purpose of discrediting the defendant, even though it also affected plaintiff's case. Ibid. 3il-Witii(>sN called by party— Hostile testimony. If a witness called to prove a case unexpectt^dly gives evidence in opposition to it, the Judge may allow the party 624 EVIDENCE. calling such witness, to treat liim as hostile and to cross- examine i.um ; though the .feet of doing so may be to dis- credit his testimony. Daridsoii v. Arsinean, 6 .l/;280. 34— Fvi(l<*ii4'0 |»i'<>*<llltill^^ K'stiiiioiiy. The mere fact that evidence in reply may tend to support the plaintiff's original case, is no objection to its admission, provided it is given to contradict the statement made by a witness on the part of the defendant. Ifebutting evidence was put in by the plaintiff, not only to contradict the defendant as to his having continuous possession of the land in question, on the trial of an lUtion of trespass, but also to show that the land had been cleared by defendant's father, the possession had afterwards been abandoned by him, and had been taken and kept l)y the plaintiff. Held, That the evidence was properly received, although the plaintiff' might have given it in his privKi facie case. J^i'ifJiJS v. McBride, 1 P, iC- li. 6G8. 3Y— I^viiic<> iiiipi-opriiy ndiiiittod— Rtlcrt of ro-cxii- iiiiiisitioii upon. When evidence is improperly admitted on cross-exami- nation, if the other party re-examine upon it, he therelj waives the objection to it. S)in(h v. Gcrow, 2 Piifi. 425. 3S— Kcbiiltiii ori'vidc'iice a(l«lii«'c«l iii cro*>>x>-cxniiiiiiii- lioii. "Where the defendant on cros»-examiuation was asked if EVIDENCE. 625 he liiul tiot made an admission to T. of his agreement, the breach of which was complained of, and denied, it is comiif'tcnt for plaintiff to rehut this evidence hy showing defendant had made the admission — for the purpose of dis- crediting the defendant, even though it also affected plain- tifl"'s case. WhiWiler v. Welch, 2 Pug. 436. jjj)_- Evidence may be given to confirm plaintiff's case, not to add to it when the tendency of the evidence is to contradict a statement of defendant. Ibid. lO-i'ollatoral fa«'t«. Question relating to collateral facts may be put to a witness for the purpose of discrediting his testimony and shewing his interest, motives and prejudices. 6V(' Criminal Law, III. 7 Reri. v. Charnon. 4l-S«'vor:il riiiiirs. Evidence of one crime may be given to shew a motive for committing another. Ibid. 4'i— DepoisitioiiKat liiqiic««t— Kocoivabic as «ifat(>iiit>iits Depositions made and signed by a party at an inquest may he received in evidence to contradict him whether the inquest was illegally taken or not, as being statements made on a previous occasion. Ibid. IS -Pi-ovioii!>i •statciiicntiSt -VstriiMiee. A witness r.i,\v be asked on cross-examination, if he has not previously made a statement at variance with his evi- dence on the trial ; but in order to do this, the witness's attention must be called to the particular statement by which it is proposed to contradict him, and he cannot be asked generally to relate a conversation with another per- son in order to enable the cross-examining consel to dis- cover whether any of his statements vary from his evidence on the trial. Rcgiaa v. Mailloux, ct al. 3 Piuj. 493. Evidciu'o ill ci'OK«i>-exaiiiiiiHtioii iiiMcatl ot a«l»iitliii|{: nut gioiiiifl for nrw trial. Evidence put in on cross-examination by plaintiff of defendant's witness instead of rebutting testimony, not a ground for new trial. Godard v. Fred. Boom Co. 6 A II. 443. rri" .;':ff «26 EVIDENCE. IX. Commission — Interrogatories — Deposition. 1— De|>oijii^ lo C oMi*— SulHriciicj . The depositions of a witness taken dc bene esse under the Act 5 Wm. IV. cap. 34, sealed and up and -ndorsed "in the Supreme Court," with the title of the cause, the date and the commissioner's name are sufficiently addressed to the Court within the meaning of the Act, to be receivable in e\;dence. WaterJionsc v. Marine Aftsiirancr Co)iipany, 3 AV;t 639. N-Cooiiiii<>«>>ioii iKltli'^s^ted to several — JBxcciitJoii by l»:»i: -Waiver. Where a commission for the examination of witnesses abroad was issued directing the depositions to be taken before four Commissioners, one of whom, though notified, ('■d not attend, and the commission was executed by the other three, in the absence of any protest at the time, or suggestion that defendant had been injured by its execu- tion by three only, and where he had an opportunity of ap- plying at term to suppress the depositions, the Courl; held that the objection was waived, and it was too late to object to their reception in evidence at the trial. Gilbert v. Cam- hell I Ihn. 471. 9-Wroii;; entrllin^:- ITIi<«nouier. A commission issued out of the Supreme Court of this Province for the examination of a witness in Ireland, in which the plaintifts were named " Hugh James and Heatley U. his wife," the depositions returned with the commis- sion were entitled *• In the Supreme Court, Nova Scotia," and the plaintiff's wife was called " Heatley Ann " in the title of the cause. — Held, That the depositions could not be received in evidence. Doe dein. James v. Mr. Lauch- ''■«, 5 All 54. ' m 628 EVIDENCE. 10— Coiiiiiiissioii to two C'oiiiiiiA«(ion<>i!ii—0|>(>iiiu— Al»<>>ciicc of Witin'mscs Where a commission issues to two commissioners for the examination of witnesses, and some evidence is proper- ly taken before both, one commissioner may return the commission, and is not bound to wait an indefinite time to permit other witnesses to be examined. A Judge has no power, without consent of parties, to open the commission before the jury are sworn. It is not necessary before putting in depositions to prove that the witnesses are out of the Province, bavin" hem shewn to be out of the Province when their evidence was taken, it will be presumed they continued so, unless con- trai'v shewn. Plaintiff is not bound to read defendants evidence taken under comniisfiion, but only th ■ evidence which ho himself gave bei'orL' commissioners. Biirju'e v. Carrill et al Pmi. 141. 11— Sesil Oil <'oiiiiiiissioii<>r«<— |>i'CNiiiii|>tioii ns to. Where depositions taken under a commission are re- turned to the court enclosed in an envelope, addressed as directed by the Consol. Stat., cap. 37, sec. 13-1 and sealed up, it will be presumed that the seal is that of the Commis- sioner who took the deposition. Doc dcin. Hcatltivtc v. Hiuihes, 2 P cO B 296. 12— Absence of Witness- Sulflcieiiey of GvidciKO nt, Wliere a commission to examine witnesses in England had been prepared and sent liy the plaintiff's attorney, who had acted as the attorney for and corresponded for several years with one of the deponants examined, addressing let- ters to him at London, and receiving replies, and never knew him or the other deponents named in the commission to be in this province and knew nothing of the latter ex- cept from having seen their names on Tlocuments m las possession relating to this suit , llald, Sulilcient evidence of the several deponents being absent from the provinco to warrant their depositions being read in evidence. /W, EVIDENCE. 629 X. Admission fro:\i Plkading, l-AdiiiiKsioii l>y PliiiiitiliV <'oiiiim4>I. Defendant may avail Ijimself of a fact which is admitted by tlie plaintiff in his opening, and made part of the plain- tiff's case, although as the pleadings stood the defendant could not have given evidence of such fact. Wallace v. Virnon, 1 Kerr 5. •i-DUIrioiit Pli'as. Scmhh', An admission on one plea does not qualify the 'ssiie joined on another distinct plea, nor affect the recov- (I'v on the latter issue. Kinncar v. Gallagher, 1 Kerr 424. :(- Hcfrn'iirc to doscriptioii of lot in clt'clnrntioii — Plea-Plan. Description of lots in plan of city of St. John, plea not f,'iiilty in so far as relates to the said close described by iiumber, and as mentioned in declaration in specific count. IhU, TLat the reference in plea to the said close being >pecilicand plain, the plea incorporated the description as far as it related to the lot in question, and was an admis- sion of the identity of the lot on the face of the plea ; that further proof was unnecessary, and that reference to plan was surplusage. Mcrr'iit v. Coxetcr, 2 Kerr 885. See Trespass II. 19, same case. l-lnt<>statoN;;oo<1s— AII<>^:sition. An alleiiation in the assignment of a breach, that goods and chattels came to the hands of defendant as administra- tor, necessarily shows that they were the goods of the iirestate. Sherlock w.MeGec, I All.'MQ. ^ l^v<<<'Hliou ofLcai^e. In an action against the assignee of a lease made by tlieplaintifi to A., the defendant pleaded that it was not tlie deed of A. Held, That the execution of the lease by the I'lanitiff was admitted by the pleadings. New Brunswick "ndXora Seotia Land Co., v. Kirk, 1 All. 443. ir 630 EVIDENCE. 6— Kopl^'viii— R<>pli<'nti<"i< |»i'0|»«>i*ty in |»lsiiiilii|-p|,.., ii4liiiittiii|^ pi-oporty in ciiMody ot law. Sec Plecading 11. 30. 7— Corporation Miiod a<4 sucli— Appearing and plosulin^ — ilHtopptui from dispiilinK exisittcnco as body 4',orporat<'. See Estoppel I. 4. g—D4^iniirrcr— Pica— Leave to amend. Where a cause lias been set down for argument on demurrer to a plea, and the defendant obtau;s leave tu amend on payment of costs, he thereby admits the plea is bad. See Hoice v. Carson 3 Kerr 11 1. 9 Pa/nient of money into Conrt. Payment of money into Court generally, in a declara- tion containing a count on a promissory note, and t\w common counts does not prevent the defendant from dis- puting the consideration of the note. McCauny.RHcn,'^ 'ail 154. 10 Payment of money into Court in an action of iiiilehetdtus assampsit, only admits a cause of action to tli amount paid, but has no other effect. 3 AIL 173. II ^'■ Anderson v. Allison, In indebitatus assn)npsit on the summary side d. Mie Court, for goods sold and delivered, and for the hire o! a warp and buoy rope, the particulars to the writ were i'ln for a warp sold, and £2 for the hire of an anchor and ropi^ ; the defendant paid i'3 into Court generally, and the only contract proved on the trial was one for the hire of a wai]!. On verdict for the plaintiff for 1^7, and rule ///.s; to set it aside — Held, That the payment of money into Com't only amounted to an admission that the defendant was lialfle in respect to some contract to the amount of the money so paid in ; and that it was incumbent on the plaintitlto shew not only that a lai'ger sum was due, but that a coutrart existed in respect of which the defendant was liable be- yond the amount so paid into Court, and that the case ffiis iii!' EVIDENCE. 681 not altered by the Act of Assembly 4 Wm. IV, cap. 41, sec. 2 relating to particulars in summary actions, and a new trial was accordingly granted. Taylor v. Barker, 3 Kcrr^ 614, 12— The declaration stated that the defendant was indebted to the plaintiff in 4*1,000 forthe salvage of" a cer- tain ship," by the plaintiff's vessel before then saved, and delivered to the defendant ; and in the further sum of i'1,000 for work and labor of the plaintiff', done and per- formed with his steamer in and about the defendant's biismess, and at his request ; there was also a common count for work and labor. The defendant paid .415 into Court on the declaration generally. Held, That this did not admit any contract for salvage beyond the amount paid, as the contract set out in the declaration was not gpecitieally for salvage of any particular ship, but applied to more than one transaction. Where a specilic contract is declared on, payment of money into Court admits that contract ; but where a contract is set out which may apply- to more than one transaction, payment only admits a con- tract to the extent oi the amount paid. Walker v. Pendle- Um, 5 All. 4U3. Oltoi' to «'oii<°(>«<^ .Iiid^;iii4'iit. /SVe Judgment 11. 4. I3-S|>(>cisil Coiitrnot— .liKlg^iiieiit by fiiiil(. Where a special contract is set out in the declaration, and the plaintiff's obtain judgment by default, or on de- niiirrir, the contract is admitted as stated in the declaration, and evidence which would have been admissible under the general issue will not be received on an enquiry to assess tlitdamages. Mdhmald et(d. v. Cumminrjct al. 2 Pug. 2S2. XL Miscellaneous. > Aiitlioiiiy ol Oliicei— Fioot— Aflidsivit on «mieiiH% Doi'd by |>(>|»iity. ^Uiere the affidavit indorsed on a Sheriff"s deed of land sold luuler execution, as to the regularity of the proceed- 682 EVIDENCFn ings, pursuant to the Act 4 Wm. IV, cap. 2*2, appears to have boon raa'le by the J)eputy Sluritr — I Lid tliat the authority of such Deputy may be proved by evidence of Lis acting in that capacity, although his appointment was under a written deputation, which is not prodnced. Doe (Jem Barhnr v. llatjichl, 1 Kerr 417. tl— Siii-v«*yoi'-CiJcii«'r:il— lN'«tir— Authority. See Crown Grant I, 18. 3 Assignment of Mortgage by an Executor is not admissible in evidence without proof of Probate. See Dof V. Hansnv, 3 All. 427. 4— 4 'idiMidoratioii— l^^videiice to oxpiaiii. iSrc Consideration 8. .> -OII>icM;tioii al'tci' a(liiiis««ioii ot'evidciiee. A deed was put in evidence without objection as a registered deed, but was afterwards discovered not to have been duly acknowledged, whereupon the defendant's coun- sel objected in his address to the jury, that it did not give livery of seisin. Scmhle, That the oly'ection was not too late ; but that in such case the Judge might allow the 0[)posite party to give evidence of livery of seisin. Scrihii'-r V. McLai(;ihlut, 1 All. 379. 6— Teinler ol" Eviilciicc. The expression of wrong opinion of Judge on effect of evidence offered, upon which counsel withdraws it, is not a a ground for new trial, the evidence should be distinctly tendered. Unci v. McElrny, 3 All. 212. 7 Evidence offered to show a statement made by a deceased witness in giving evidence on a former trial ni the hearing of plaintiff in the present suit, rejected. Qiuerc, Whether other evidence than appears on Jiulgo s notes could be given ; if it could, it should be distinctly tendered on that ground. Prcscott v Walton, 2 Han. -3i). 'mmmwim EVIDENCE. cm ^. Evitk'nce rejected at a certain stage of cause, Imt not absolutely, and not again tendered, is no ground fonu'W trial. Tulh v. FLitlieirdi/, 4 All. (52. «- When evidence is tendered, the Judge has a right ti) ask the parti'iular purpose for which it is oft'ered, and if the counsel refuses to state it, he may reject it. A'^// v. ThnmHoii, ] Ilan. 207. 10 .IiKl^r sMiiiiittiii;;: cviilnicr at any tiiiif during trial. ,SV(' Supra VIII. il. 11 liii|»i-o|><>i* ailniiMCtion ol'ovidi'iK'c- Willi)'or— R4;fei'4'iicc to plan— LiO<>i>« of field iioteisi. A surveyor who had made a survey of land by direction of the Government, may refer to a plan of it made hy him- self shortly after the survey filed in the Crown Land office,, and upon which survey a grant of the land issued, for the imrpose of enabling him to state the courses and distances which he run, his iield notes of the survey having been lost. Mies V. Burke, 1 Pik/. 237. I'l-DchiN and rrodils -AcconntM t-onlaiiiin^. One side only of an account containing debits and credits cannot be given in evidence; but it is competent ti'r the party to whom the account has been rendered, to put it in evidence and disprove the debits. Palmer v. ''llkvt, 1 .1//. 505. 14 - Pi'oiiiiMKory Mote C'OlllltK. 'SV'' Bills and Notes, VI. 12 Assumpsit III. a, 89 Evidence nndcr CJoinnion m\ 634 EVIDENCE. I'l— F(>iKii<>4l l*«!»iii<'— Evi4l4>ii('«' iiiid4>r. Sec Practice XL I. 16 - IliiiKlwi'itiiiK l*n»<»t of <'oiii|»siri*i' cut witlioiil licoiiM'- <'ro\vii laiHl. Where timber is seized by the Crown as being liable to forfeiture under the Acts of Parliament 8 Geo. I, cap. 12, and 2 Geo. II. cap. 85, for being cut without license, and is claimed on the ground that it was not cut on the property of the Crown ; the onus of proving that it was cut on private property, is on the claimant. lu'ijiitn v. Becerhljc, 1 Kerr 58. 19— l§(>lliii^ Liquor. In a prosecution for a penalty for selling liijuor without license, proof that the sale was made by a person in the defendant's shop in his absence and without shewing any general or special employment of such person by the defendant in the sale of liquors, is sutticient prima Jane evidence against him. The prosecutor need not prove that the defendant had no license. Ex imrtc Parks, o All. 237. EVIDENCE. 035 •i« Oiiiio jnolmiidl. The o«//.s of proving,' that li(|iior wiis not intoiuleil tor «iile, in ordor to Have it I'roin foffoituri' uikUt section 15 of IS Vic. cap. 36, is thrown on tiie owner, /i-;/ v. Salter, 3 .1//. :)21. Ill anion of i'(>|>l('viii. Scf Replevin. Pleading 11. '27, 30. •il AlU>*«tiii;; \vifii«'««««- DiliK^<>iic4> in iCov4>i>iiitf. Whether dun tliligenc(; has been used in diseovering attesting witness must depend on thu circntnstanees of each case. Sec ('nine v. Ayrc, 2 All. 577. ■i'i-l<<>i<>v:iii('} 'Kill of Sale — 8iil»«<>iit hiii'iiiii^ of Where the question in issue was whether the plaintiff had fraudulently set fire to a house in which he lived, evidence that he had given a bill of sale of his furniture, and bul)sequentl.y insured it and claimed the insurance alter the lire, is relevant, being an act of the plaintiff tending to shew a motive for the destruction of the house. It7/W();( V. n'rtmorc, 3 All. 482. The hill of sale was altered in a material part after execution. Held, That it was not thereby void from the beginning, l)ut was admissible to prove that the plaintiff liud sold the furniture. Ibid. '2*i fi-Uaiii'ii;;<' of land— lri*oi<>viiiit qu«>< on udjoiiiMi^: M>il. Evidence of the injurious effects of mining coal u:i ether lands in the neigubourliood of the plaiiitift"s, i- inoperly received. Sec McMahon v. lierion, 2 .1//. 321. 2N— H'itiK'SM not i'<;in<'iiil>4>iin^' ^tateinoiits. "When a witness called by the plaintiff to prove a pay- ment, savs that he does not rememlier anv statement madt by the defendant at the time, explaining the payuit^nt. it is competent for tlie defendant to call evidence for tba: purpose. Fldijlor v. Ilich4■lill^^ priiiisi IsK'i*' <'iiM'-\oii pi-odiictioiD Contract partly written, |t:irtl.vor:il. Contract partly written and partly parol, the plaint'^ making out a prini't fdcie case of possession of iiiaiber, :' EVIDENCE. 687 is unnt'Cessar.y to produce an agreement in writing relating to matter of suit, but not affeeting the pyiDUi fucic case. When a contract is to be made out partly by written docu- liieiitn and partly by parol evidence, the whole becomes a (iiiestioii for the jury. Mucplicrson. v. Frcderictoii Boo)it ('imi)iiinj, 1 //"'/. 337. :(0-('(>eilli('tin^ sta1<'iU4Mit«i— A|»|>lic:ttioii to 4'oni|>o9l ISlM'i'ill t» |>!iy «v«'r Hioii4\v— -Xoii-prixHiirtioii ol i-clicatiou. niton v. Scovil, 1 ILiii, -498. :SI -WiiKliii;; lip act— .ludyoN or«l4>i'. A Judge's ' kr settling list of contributories, only prima fni'ir. eviii in-e of liabil'\v. See McKcnzie, Curator, '•k.^i. Seaman 1 Han, ()21. :J'i -l)»'3>ii Oil ISookM. Sa' Credit. *:i (iviJil roHlraitiiiw; »>• Agt'iit— JinlgaiM-iit by «!«■- ruiiHt SiMiMii'y. After judgment by default in an action on tlie common counts fur work and labour, etc., the defendant, on the execution of a writ of inquiry, may shew that he contracted merely as the agent of a third ))erson to whom the credit ns given. See Falls v. Sanjent, 3 Ki:rr 248. 638 f]VIDENCE. 31— ^ierviiiy: |>n|»(>i-— .^lakiii^: t^viilviirr. A party cannot make evidence for himself by serving an acconnt on the opposite party. See Gilbert v. Palmer 1 ILin. ()(J7. Nor by writing letters. Sec do., 1 Tlan. 471. 3 la— lloiSf isM'i'i'd <1iit ol jl^raiil<>4' iiiaist l><> mIicwii. To an action for the breach of a written ''onfract whereby V)., in consideration of I'SOO paid bv 'uni to A. n greed to convey to A. a mill and mill privilege at P. as soon as he obtained a grant thereof. B. pleaded — Ist. Xou (issitiiq)sit; 2ndly. That he executed and doliv(n-'nl a conveyance to A. ; and 3rdly, Th^t a conveyance was ten- dered and refused. At the trial a registered deed was offered in evidence under the pleas without proof bv the subscribing witness of the execution in the on' .i;uv vay; Held, That such evidence was properly rejecteu, i. not being com[)etent for the grantor to mal " a deed evidence by mere force of tlie registry and acknowledgment, with- out delivery to, or assent of the grantee. S)iiit]i v. }niHd(if, 2 Kn-r 408. 35— Sliou'in^ fraud in 4»l»taiiiiii;; .liKl^iiioiit. Evidence of fraud in obtaining a judgment by the plaintiff against A. is admissible it Nisi Prhis, where the plaintiff claimed title umJer a sale on execution issued on such judgment, and was party to the fraud; the defendant being also a judgment creditor of A., and having purchased under an execution issued after tht; i)laintiil['"s execution. McKcnj V. Crnchrr, 5 All. 20. 36 Plaintiff and defendant had both obtiuned judgments against A,, and issued extjcutions then. on, but the plaiutilf's execution Wiis first in the Sherilfs hands; the Sheriff sold under botli, and tlie plaintilf purchased under ^lefendant's protest, at the Bale on his ext'cution, and the defendant purchased the same property under the sale r,n Lis execution. Held, That tiie defendant liu I a right in EVIDENCE. 680 an action of ♦^rover brought against him by the plaintiff (tho propeity being in the defendant's possession) to shew fraud in the plaintitf in obtaining his judgment against A. Ibid. .■{f-Distiosiir*' ol Writiiiv:— Forinutioii of AKsocialioii. Defendants were the committee of an Association who imployed M. to publish a news[)aper under a written agree- ment which prohibited him from pledging the credit or creating any liability against them. Plaintiff acted as reporter for the paper, but proved an agreement with the members of the Association, having been referred by them t(i M. for the financial arrangements. In an action against till' Committee for work as Reporter, one of the defendants on cross-examination stated, that there was a writing umler which the x\ssociation was formed previous to the agreement with M. Held, That the writing was properly admitted in evidence on the part of the defendants, 1st. Bicause the plaintiff had shewn by the agreement he put in, that I'^e defendants represented an Association ; and -nd. Because he had shewn l)y the cross-examination that there was n writing previous to the agreement out of which it grew, and it was therefore competent for the defendants to shew the origin of the Association. Bcardslcy v. Sr.tvU, 'J.^//. 86. ^ Stiitoiiifiil ofbRlicr-Prcvioiis Statciiieiits-Elletk. On the trial of an indictment for burning a barn, a witness for the prosecution stated that he had examined foot tracks in the snow leading from the barn to the prison- er s house, Miat they were double tracks, and appeared as if the person had gone and returned on the same track. On 'TOris-exaralnation, he skated that it ap[)eared to be a doul)Ie track going and oomiiig, l>ut he could not state positively as the snov -vas mealy in tho bottom, Jind l-o couUl not sue listinc'tly; and on re-e\ainination he ^aid he believed the tracks cuch way were the same tracks. lIAd, That the jfatemeut of the witness' belief did not make his evidence "11 this point inadmissible, but that the effect of it was pr-iperlylefttothejury.— /i^v//«,f y. Foley, East T. 1878. 040 EYIJ)EiNCE. ;tf> l>aiii»^r -4ii4'ii4>i'al assci-tiosi iiisiifli4>i(>B>«. A plaintiff giving evidence on liis own Lelmlf cannot w allowed to state that he has sustained a certain amoiuit of damage by the act of the defendant : he should state the facts on which he relies to prove his damages, from wlii.'h the jury are to determine the amount. IkmvlUc v. AVcno, Kas^t. T. 1871, and llipni v. Juiiwh, \ Pinj. 12-2. 10— rcttn'i' -By whom u riiK'ii— Siiliirii^iicy <»( (>vir. C. iHn. that defendant refused to deliver to him a quantity of iruu claimed by plaintiff', to which an answer came to defendant and plaintiff' swore on the trial that either defendant i^r A. his clerk told him what the answer was ; that dtfeni'a'.it also told him that he was not bound to deliver the ireucu a telegram, and would not do so. A. denied lia\ in;,' told plaintiff the contents of the telegram. J hid, per Allen C.J. and Fisher J., Welden J. dissenting, That the conversation with defemlant was enough to identify him with tlie com- munication of the answer to plaintiff', and that iihiinhli^ eviduLce of the contents of the telegram was pro[)eiiy received. Lbld. 4'i— M'itii<>K<<% K'Miiiiony on provioiis nial idim*-'- l»ility of wlini loo ill to bo ii<'(> t<>ii4liiiu to iifl('«-l .\ol :i4liiii>«- siblc. Where molasbes were sold according to a certain gua;;e, iind no liability on party, defendant was siiewn to make I'ooil any deficiency, evidence to shew that the molasses fell short on re- sale was properly rejected. Me Lex n v. Ruhhisoii, 2 P. (L- ./>'. 83. 4I-Iriel«'vsuit t(>*«tiiiioiiy. Where evidence when offered is irrelevant and can only become material by the giving of subsequent testimony, it is discretionary with the Judge whether to receive it or not. l)(irt(h(>ii V. Kiini, 8 Pk;/. 39(3. 4>)-(jt('ii(>riil stiiti'int'iii of valiir ol ^oo*!^ I»y pliiiiilill — .\o \vitlilioliar(> of %iilii4> l»y «l«'t<>ii- (laiit. A statement of the plaintiff on the trial that she should judge that a case of goods contained from §4U0 to jioOO worth of goods from the knowledge of buying and selling like goods was held to be improperly admitted in evidence the defendants not keeping back any evidence in their power to produce. Smith v. Ijiutt, 2 Pii;i. 64. l(>-IiO«.H ot koaiiia^:<>*>. In an action against a common carrier for the loss of a case of goods, a jury is not justified in giving a verdict for greater damages than the value of goods actually proved to have been contained in the case, and the maxim, ^I'tmk presumuiifcr contni spoUdfaron will not apply unless 642 EVIDENCE. it is sliewu tliat the goods were in the defendant's posses- sion, and that they had an opportunity l)ut omitted to shew their vahic Ibid. 11— 0<'«'d— Wiliicws. A conveyance of land does not recjuire a witness. Ihjc (Irm. Sherlock v, Poicers, G .1//. 232. 49— Iiicorpoi'iitioii o/' (.'oinpsiiiy. In an action brought by plaintiffs in their corporate name against defendants as endorsers of a proraissMw note, tlie defendants pleaded no endorsement and want of presentment. Ifeld, That under these issues the plaintiffs were not bound on the trial to prove their incorporation. Bank of Xova Scotia v. Morroir, 2 Paf/. 4G0, 19— A<'tioii iiKsiiiiMt cliiii'td'crN of vo»i««el— Maiiisigc^— Kotliictioii. In an action against charterers of a vessel for nou- delivery of goods shipped under a l)ill of hiding, if defend- ant claims tliat the damages should be reduced by a claim for general average, the burthen is on him to establish tlie liability and shew the amount. Burpue v. CanHh', 3 Pnn. 141. ■'iO -C'oiii|ii:ii'i«>oii of Ciiarts— liiipi'opoi' adiiiisMioii of Evi4>i':itioii - Proof of bciii^^ «iiirli. Evidence thi^t a person communicated with a eorpora- tioii !is chairman of the trustees of the corporation, without .•ilit'wingin wliat way or how often he so communicated, is not Hut'licient proof of his heing such chairman. Ilciiitinv. SidUnui. '.) Puij. 404. .)|-r»iii]>l;i' 3' U('for«> .fiisticc— Stiit<'iiioiit*>t. Complainant's statements before Justice of Peace. Evidence may be given of what was said when the com- pliiintwas made. Giiliicij iiiul iv'ifcv. Dihhlc', 2 P.i /. 888. Ki>('<'i|il by .lii'^tioi'! 4»f'l*<':ir('— iiiMiifKcioiK'y of evidence of <<<>t(l<>iii<>iif to r4'ii
  • i- liiiii iDiiblc f'of mini paid. >v Justice of Peace III. 5. I'liblic l{<«>:i<'«' iB<»t l>oiiit«l to pi-odiire fli(> i-ord*t of ^(>M*i>ioii<>« upon :i Miiltpinia s tCCIIIII. Si'i: Justice of Peace, III. S. Wi'tmore v. llardinrj, Ircoiuit Stated— i^vidoiicc. 5ii in evidence in qiu'stioiis atrorliiijiii: iN'al property. i'l'' \M11, Knnpp v. Kiiuj, Hvidniro |>r<'««t' New Trial, III. 57. •"M'diiioii Ol Will - All<>^n'Miiiis>tioii nv^aiiist will hoariii^ M>ir-vidriit marks <>l iM'iii;; iiiifliii«^||(>d. ■>«Win. n,' GUba-t. 641 EVIDENCE. <'oi'}>oi:iti> iiiiiii(> I»rool »t iiiii>«Mali<»ii w Sun i,,^, I'cqiiii'cd. Sec Pleading, IV. 12. WsiiraiiO oriiliU's**«f |>i-('iiii*ii<>4»s<»^ ini(>,|(|4,,| Sec Warranty. I.vttoi-s i-4>(<'i-r<>(i lo ill 4l<>r<>ii>ilsiiir*« iiiiswrr in i:i]uijy VSV Ol «t:illi4'. See Insolvent Act. McLcad v. McLiinl. liUK'iit VoDiha^iiity — ■iileiitioii. See Ilelease. ■<4'l»loi uii— I*l<>ii iioii «-«>(»it l-^vi(ieii(-4' iDiidn . See 1 'leading U. 28. ri'oviiix jn'0|MM'f y. Sec Pleading 11. 21). Tret>*|>ass— Plarc not (troved— ^iifiicioiiry of'i'vidciicc to «'iititi4' plaiiititrto i-ocoi^ei' on aKportavil coiiiii iS't't' Trespass I. 25. Plar<'|H'o|><'rJy ori'<>s|>oii4l<>ii<-(> ill proof— ^E\ide9i3;L> orphiiiiii Ci<'i'k% ollico not c»*:>>ciitiai. See Mevritt V. Coxeter, 2 Keyr 385. ( .SVc Stame ease, Supra X. ;]. ) IVIcfsiK' profits— Action for— Hnsband and wile— .liid^'- iiM'iit a^aintst A%il<;— Action as^ainst l)ii««baiM! siihI witu' tor joint trcspa«><<( not supported by proolof .jiid;;iiiciit a^aiiiMt wife licloi'o inari'ia^e - ifliii* ria^'c not Itcin;^ averr<>d. See Ejectment VI. ContcsHions of third persons — Proof of felony. See Criminal Law. Res Ciesta'- Sheriff's in action ol ejorliiMiH' witiiont proof of .iudi;iiient or eveention to win* rant it. .S>.' Doc V. Baxtct', 4 ,1//. 131. EViJ)ENCE. ()4o XU. Ul KSTIONS OF VmI I'KOJ'Kll FOIl DIX'ISION Ul" JuilY. Jiisstisiii is a question of tact for the jury to decide ; ami it on a trial in ejectment a verdict is taken for the plidntit! by consent, subject to a motion for non-suit, on i\v ground that the party throiiob whom the phiintili" ikrives title was disseised at the time he conveyed to the plaintiff; the Court will not decide the question, hut send the case down to a jury. I foe dcin. Dotcliini v. Pearnon, 135. 4*'<'or\. i.i^lliei- bill taken »k f>iiu'iit Acqiiifsitioii K<>liii4|iii<«iiiii<>iit, ov doiiiiiriit. Sec Easement 6. riiiHd. Si'e New Trial III. 21). Fraud. • liaudiilciil HciiiovnI. Sec Distress, i'oreign Law See. Abnii- 64G EVIDENCE. Iiif'«>r<'ii4'<' from l'avl*>. iice Malicious Prosecution. I\'lli«lilll4'4'— I'lld'Ct of 4>l'<>4'tiOII of l):iiii. See Action on the case III. 1. I'tii'tii<'i'**«i01l (A«IVOI'<>«<'.) Sec Limitation of Actions. See Deed. Insurance Sec. PaiiicM— MiiiiK' ;\siiii<' — liilciitioii See Identity. Surrender See. lOiitoriii;; <»ii iaiKl— liiK'iilioii of |»ai'l.v. See Limitations (Stat, of) 12. <'i'«'tlit to wiioiii ;fiv<>ii. See New Trial II. 45. luijjnwnd v. Cumntiiiii. ifiuflifiriK'y of ('vi«l(>iM-4' as to aft<>i' a^'quiivd pt'opntK See Absconding Debtor 17. Callcit v. Voss. ^laii<-(> not a iiiicstioii for tli<' .liid;;^*' to «l<>l4>riiiiii<'. See Malicious Prosecution 11. XIII. Genkual Issue — Evidence undkk. 1— filK'iifi; Neglecting to execute process ma}- shew under general issue that debt was barred by Statute of Limitations. S>y Curren v. IJeekivith, 3 All. 305. EVIDENCE. G47 •t 4r<'(i>liiii4'r: |»ay:il»l«' li:ill 4-ai<>«li, lialf ^:oo4is 'l'<>ii«l('r 111 an action on an iiccoptanco, payable half in cash and liiilf in },'oo(ls, a tender of the goods cannot be given in evidence under the general issue. Turner v. Cntiie, m. T. 1H:V2. ;l-Tr('*>|Ki*«. l']siH<>iii4'iit. An easement or privilege granted by deed to turn the watir of a river for the use of mills, and to build niill- ilaiiis, (lous not convi-y the right of soil, and cannot be liiveii in evidence under the general issue in trespass. l|-,///,/rr V. Millil.rii, East. T. 1881. I-I.irnisc l>i^:KiiiK: IiiimI. In trespass for digging up the plaintiff's land, the ilefHuknt jiistitied his entry under a license froiL a forniir owner of the land to work the mines therein. Held, That evidence of such license was not admissable under the general issue, either to justify the defendant's entry or to shew a previous possession in him. (Jcaiter v. Cairns, 2 .11/, olio. ^-'l'iT«.|»a>.*» qiiHi-o cl. fr. The defendant may in trespass quarc clausitm fregif, imdi-r the general issue shew title in himself, or that he tuttred by direction or authority of the person having title. llmlinn V. Holder, -I Piaj. 222. >oii-i('iiiiii— i:vio under— Fraud uiay be «»lie\vu. N'c Landlord and Tenant MI. 7. McLcod v. McGuirk. IVm -Joint oeatiou ol. •Scv Lse and Occupation. liHorinatioii lor IntruHioii. So; Intrusion 1. idiiiUsibiiity «r evideiiee uii. S'v Supra XL 23. I'l'ii wlu'ii roii V '."is 1^>.^^^ 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (7)6) 872-4503 w o €fA '/. I 048 EXECUTION. E\<'i:i*TIO.\. Sec Bail. Practice. Error. Crown Grant. i]\<-i:«iiKivi: i>A:vii4,iE. Si'<' ])ama{j;es. Si'C IJ»i!^ti-t>««M X«He«*«*«i'y :ili4'{;stfioii in «l«Mliii-siiioii. See Pleading I. 53. K\^. ,f SUE. .4vi-(M>iii4>iil lor o«('liaiiy*' i>i( liHiKlm. See Deed V. 1. .4|;r<>«>iii4>iit for <>xcliaiiK<' ol' \VaH:K:oii«i Waifaiil) »l o'.\ nvi'Mliip. See Warranty 4. E\<'IIRQ1 EK. See (Supreme Court. 1 Where logs were seized as having been cut m Crown land witliout license, an order for their sale ;is " perishable articles" was refused ; the only ground allejied being the expense of their custody pending thf proceed- ings for condemnation. Rex. v. 720 Smr Lojis, Trin. T. 1833. ♦i A summary action, in which the rights of the Crown are involved, may be removed into the Court of Exchequer by an order. Wilson v. Briscoe, 2 AIL oSS. EXECilTIOm. 1. FiEHi Facias — Levy. II. Capias ad Satisfaciendum. III. Setting Aside and St.iyino. IV. Miscellaneous. EXECUTION. 649 I. Fieri Facias. K(M(*ival»l<' ill F.vi4loiie<> tlioii|;^li ii»l rctiiriied. ,S(v Evidence II. 20. l-Ki^lX to«i«'i/« Koods— Dill«»i'«iit County. Goods of a, judgment debtor wore sold and delivered to the plaintiti in the County of Carleton, and were afterwards brought into the County of York. I fell, That the Sheriff of tlie County of York could not seize them under an exe- cution subsequently issued against the debtor, though at the time of the delivery to the plaintiff there was an execu- tion agains^i the debtor in the same suit in the hands of the Sherift'of Carleton. Conncll v. MiWtr, 1 Kerr 802. 'i-Biiidiiig: LhikIm. \mii oi Jieri facias tie hnnis et terris, issued upon a judgment in ? summary action binds the lands from the time of the delivery thereof to the Sheriff to be executed, and it is not necessary that any prior memorial of the judgment should be registered in the County records to prevent a conveyance, made by the judgment debtor of the land after the delivery of the.//. A. to the Sheriff, taking precedence of the Sherift''s sale and conveyance. Doe dcin. Nesinitk V. WiUUtou, 2 Kerr 459. 3-Ah'aiiiKt o^itato of inortKnic^eo in fee. The estate of a mortgagee in fee who has not taken possession ot the land is not seizable in execution on a judgment against him. The fact of there being no bond or covtuant to pay the money does not affect the question. Ihc V. White, 4 All. 314. l-DclivcMy— Operation— Intention to levy. An execution put in the Sheriff's hands, with instruc- tions not to levy on it unless it should become necessary to prevent another execution from taking precedence will not I'indthe goods of the defendant, nor defeat a purchase of them before a seizure actually made under the execution. Crane v. Clark, Hil. T. 1828. 41 m 650 EXECUTION. .1 Where a .A'-'/'j' fxrida issues, and there is no evidence of intention beyond the mere deHvery of the writ to the Sheriff, it may be inferred that it was intended for immediate execution; but circumstances may be shewn which will negative this presumption, and tend to the in- ference that at the time the writ was delivered, it was not the intention of the judgment creditor that it should he executed without further instructions. A letter from the judgment creditor while an execution is in the Shoiili's hands, advising the debtor about the management of his business and the disposition of his property to raise money to pay his debts, is evidence of the intention of the creditor that the execution should not be put into immedi- ate force. Johnson v. Crocker, 4 All. 94. o Where a^fieri fanas was delivered to the Sheritf for the purpose of binding the debtor's lands, and not for the purpose of a sale, and the Sheriff informed the debtor that he had the execution and indorsed upon it that he had levied o)^ *he lands, but did no other act for more than live years, wlien he advertised the land for sale. The Court, doubting whether this amounted to a levy on the land, set it aside on the application of the debtor and a mortgagee of his land. Hmnilton v. Bryson, 1 Hun. 018. 7— Before jiidKiiiciit obtiiiiied. An execution placed in the Sheriff's hands l)efore jud;;- ment, will be treated as fraudulent, and will be set aside at the instance of a judgment creditor of the defendant. For the purpose of Justice, the Court will take notice of the particular time of a day when certain proceetlings took place. DeVehcr v. ColUn>j, Nil. T. 1834. JVIi«t'ulliiiK M'rit in MieriflN Deed. See Sheriff's Deed 1. lit— JLevy iiiidei*. Where an execution is correct in itself, though indorsed to levy more than the amount due, the Court will allow the levy to stand for the sum really due, if there is no fraud in the transaction. See Lunt v. Estabrooks, 3 Kerr 144. ■n EXECUTION. 651 9__ The Sherifif need not make an actual entry on the land to levy: the advertisement is proof of the levy. ,svc Doe V. Ilazen, 3 All. 87. IQ. An actual levy is not necessary. Where, after an execution had been delivered to the Sheriff, the defend- ant gave a written acknowledgment that a levy had been made on his property under the execution, and afterwards paid the amount to the Sheriff — Held, That tho Sheriff was entitled to poundage on the amount paid, under 1 Rev. Stat. cap. 103. Central Bank v. McKesn, 5 All. 529. ll-§Hle— .\o actual seixiire or overt act by Sli4>i'in. Tiie property of a judgment debtor in goods is not divested by a sale by the Sheriff, unless there has been some overt act of seizure by him, such as marking or taking possession of them or separating them from otliers. The sheriff must have done some act to enable him to deliver possession of the property to the purchaser, and he cannot by a general sale of all a debtor's goods, pass the title to property not in his view, and on which he has made no actual levy. Reynolds v. Ayrc, 5 A! . 333.. I'i-Kctaiiiiiig money— Other e\eciitioii. The Court will not order tiie Sheritf to retain in his hands money which he has levied on an execution at the suit of the plaintiff, in order to satisfy an execution against the plaintiff at the suit of one of the defendants in the Sheriff's hands at the same time. Bvndleii v. Ilopleif, Hil, T. 1828. I't-Sccoiid execution— Siiittisl'actioii out of |»rocee4 of lii*ti-!^lieritl\ riij^ht. It a second execution comes into the Sheriff's hands niter he has sold under a former one, he has no right to to apply any money remaining in his hands after satisfy- in;^ the lirst execution, towards the second one. Stevenson "!. Ihitghs, Ber. 281. H-Teste- Issue. An execution tested on the day it is issued in vacation ^ii 652 EXECUTION. upon a judgment entered up as of the prect'ding tum although irregular, is not a nullity sincu the Act 5 Win. IV. cap. 37. (Chipman, C. J., diilntaiitc.) Poirci v. Johnston, 2 Kerr 43. See Acts of Assembly 21 Vic. cap. 20. I'^— Slivfifl'N Kctiirii— Uiiecrtaiiity. A return of a Sheriff to a writ oi fi. /,(. that he had " taken from the defendant a horse claimed by the dofcud- ant's son, and placed it in charge of H., from whose cus- tody he said it was stolen ; and that nothing else was found with the defendant," is bad for uncertainty. Ketchm V. Museroll, 3 All. 347. Aiiieiidiiii; Ketiii'ii- -Wi'oiik Levy. See Amendment II. 10— Vsii'iaiicc b<>l\v«M!ii fl. fa. and flic jud^^iiioiit uiiioiiiil — Sal<' not aflvct4'«l tlici'oby. See Variance, Linton v. Uilson. 17— Irrc^^iilai'ity— l*iii'cliaMC>r. Any irregularity in issuing the reuditione cxponon will not affect a purchaser under the Slierift''s deed. See doe dem. Hazen v. Hazcn 3 All. 87. IS— Fit'i-i Facias may iM!>>>iic artci* c^caipc or debtor. See Kelly v. Wilson, 2 All. 475. 19— Alteration. An execution which has been in the hands of the Sheriff, and was by him returned to the plaintiff's attoruey, who altered it into an alias, and re-issued it, is void. •/"/("• stun, V. Wiusloic, Ber. 53. *iO— Levy, what ainoants to— E!>»top|M'l. P., Sheriff of (Queen's County, went to B.'s residence to execute a writ. B. gave him a description of the property on the place, and P. made a memorandum of it in B. s EXECUTION. 053 presence, and told B. that he (P.) had h'vicd upon the [iro- lertv, and B. then promised that iftho Shcrilf would loave tJjo pr(i[)crty in the place, it should he forthcoming when it was required to he sold. Held, (i)y Allen, C. J., and Weldon, -J.,) That B. was estopped by his conduct from saving tlu-re was no levy, as the Sherift' would certainly be istoppcd as against B. from saying there was no seizure. //,/(/, (!)}■ Fisher and Wetmore, J. J.,) That the writ had beon virtually executed, and that there was in substance an actual delivery. jJi-ooka luul n-ifa v. J'ulmer, 1 P. lO /)'. i;i5. •jl-Tiiiii' of «loliv«M'y of 4>\4>ciitioii— Fmrtioii of n day. A fraction of a day will not be considered with refer- ence to the time of the signing judgment and issuing exe- {.ution ; therefore, where an execution was delivered to the sliiiitl" before the judgment was actually signed, Init on the same day that it was signed, it was held regular. St. Strpkn Bank v. X. B. (C' Can. liy. <(!• Land Co. 5 All, 029. i>i' Sii[tra No. 7. Dcvchev v. Colli nj. II. Capias ad Satisfaciendum. l-l<>«iiiiiK HcroiKl ra. ««a. If no original execution issued within a year and a day after ju( gment is found on file, a second ca. sa. is not war- ranted, without a «('//•<' fdciaa to revive tiie judgment. Brmn v. Partelou; )] Kerr 32-1. {Sre Rev. Stat., extend- ing time, 12 Vic. cap. ;J<), sec. 35.) 'j-4iiM>ii(iiiioiii or. An apiilication to amend a ca. na. issued sixteen years ago will not be granted unless the writ is found on lile, or some record of it is produced. QiKcre, V.'hether such an amendment would be made after such a lapse of time, and after the defendant had been arrested on a second execu- tion, which was also irregular. Brotrn v. P-irtdow, 3 A'r'T 324. 654 EXECUTION. m 3— T4>««fiifiiiii. The want of an original ca. sa. in the County where the venue is laid, if not amended, is a valid ohjection to arrest under a iOHtatum ca. sa. Sewell v. Burpee, 3 Kerr'dC)^]. 4 — lri'4>Kiiliirity— Diir«'i'<>ii4>c l»et\v<>«>ii JiitlKiiiPiit. Ca. S(i. differing in amount only from the judgment upon which it is issued, is not void, but only irregular. S2)ence v. Stuxrt, Ber. 219. Biiil, pirntliiifc Hint no cii. mil iMwiiod n^nitiM priii- «*i|>al — Applirntioii to Court to M>t UKi«l« |iio* «*«>(Mliii|;w lor irri'^iilarity. See Bail 10. 5— DefViidniit poriiiittiMl to ^o nt lnriii:<' ttv ««|M>riHl bailiti of piniiitifl. If a defendant in custody upon a ca m. is permitted t» go at large by a special bailiff named by the plaintiff to execute the writ, and his servant and agent, for that pur- pose, he cannot afterwards be re-taken on a new ca *n. These facts will be a good defence to an action on tlie limit bond given on the second arrest. Audreus v. luvsilull, Trin. T. 1832. III. Setting aside Execution. 1— Siis|»cii sot HKide— Debt— Execution iu assunip^tit. See Practice VI. 3. 9— Se«rond execution for balanee— Recital* If a part of a debt has been levied, the execution should be returned and filed before a second execution issues tor the balance, and the latter execution should recite the former levy, or it will be set aside for irregularity. 6''«'f^' T. Jone*, 2 All. 176. EXECUTION. 655 -A Judge of Common Pleas has powci to set aside an execution irregularly issued, upon a judgment in that Court. Wihon, v. StrM, 8 .1//. 80. !«ii«i|iriiiiM'«ly. Sec Judgment. I_«ii:iyiii); 4>\4>riitioii— AiliiiiiiiNtrator— Estntc in«iolv- «'iit. The Court will stay an execution on a judgment duly obtained against an administrator for the full amount of a dflit due by his intestate, upon affidavits shewing the estate to l>e insolvent, and tliat the plaintiff will, if such Mfciition issues, ol)tain an undue share of the assets of tluMstiite. CiinlilFi' \. Morehoiistr, ^ Kerr Ml. IV. l\riSCEIiLANEOUS. l-l'iiMiti!«licx<>4*iiiioii— ItiKlit lo iMMiie for bnlnncc. Where a Sheriff, having a ca. sa. against a defendant, received from him a horse in full satisfaction of the execu- tion, without any authority from the plaintiff ; and several months afterwards sent the horse to the plaintiff, who sold it to the best advantage, though for much less than the value agreed upon between the Sheriff and defendant. //W(/, That the Sheriff had no authority by law to receive tiie horse, and tliat it was no satisfaction of the judgment, ahhough the horse might have produced enough to pay the amount due if the Sheriff had sold it at that time ; but that after crediting the amount produced by the sale, the plain- tiff could issue an execution for the balance. Cnrmnn v. MSA'en-, 131. 'i-l««iie or-Wli(>ii considered. An execution issued in the week which includes the third return day of the term, is deemed to be issued in term, and may be tested on the first day of term though tlie judgment on which it is founded is not signed until after the first day. Coffin v. Mursh, 3 Kerr 427. fioG EXECUTION. :i- A writ of execution is couHiderod ilulv issud witliin the mojininf^ of the Act 7 Vie. cap. ;i2, sec. 7, wIkh it, is Ht'iit l>y the attorney for tlie hoini jidc purpose ot its reachinj:; the hands of the sheriff in the uhuuI course lor the transmission of such documents. Liiut v. liitaJmiub 3 Kerr 291. <1— .liiHlifiratioii iiii«l«>i- 4>x(M-iitioii. A process, regular on its face, is a jastification to the otiiicer. Sa; Carter v. I'liriiKjtoii, 2 AIL 220. .Iii^iiifirnlioii iiii«lt>r warraiil ol' riMiiiiiiiiiioiii. Sec Justice of the Peace. licf/iiut v. O'lj'urji. .■5 An execution issued on a summary judgment is a justilication to the sheritf", or a person clothed with his authority, for any act done under it, without proof of tho filing of the bill of costs. J*a(iiiiiK: *>>i(l4' tit trial for iiT«>u;iilai'ity of «'\(><>ii- lioii. TIkj validity of a sale under an execution cannot be impeached on a trial at Xixi Priii>t, on the ground that the ticcution is irregular lor having issued on a judgment more than a year old without a aclre/ncinH. Dix' v. Widnon, 1 .1//. tiT'j. Viiriiiii<«' ia MM-ital of jikIk^iik'hI. Sit' Variance. ^iil<> li) siK'i'itr iiH4l<>r ail alia\4' |»I'4»V«>«I. Hce Sheriffs Deed G. 0-.lii«fi4oa4'<> -Siiniriciiry of (>\4>4-iili4»ii i«t- sii<>4l hy. An execution issued l)y a Justice of the Peace is sut'ti- oitnt, if it sul)stantially follows the form K in the Schedule to the Piev. Stat. cap. 187 ; and any person resisting aeon- stable executing it, is liable to an indictment. It is sutii- lient, if the execution is made returnable in a certain number of days from the date, so that it may be ascer- tained by calculation. lti'(i. V. McDonald, 4 All. 140. 10 -ilisi»» Wrif— Kxc4'*»siv4* aiii4»iiiit— Aitc^mi. If au execution issues upon a judgment in a Justices' Court within the time limited by the 1 ller. Stat. cap. l;i7, sec. 38, au ulias or pluries may afterwards issue, though more than three years have elasped since the judgment. Sanhk, That an execution issued by a Justice of the Peace for more than the amount of the judgment, is irregular only, and the mere arrest of the defendant under it, is not necessarily a wrong ; but otherwise, if he is imin-isoned un- der it for a greater number of days than is allowed b}' law according to the sum actually due. liijan v. James 1 Ptaf. 122. n-Ex4>riiii4>ii lor lc!>>s(>r aiii4>iiiit tliaiijiidg^iiieiit— T4'ii- (U>r— K4>riiKal— ■mpi'isoiiinciit. hefendant recovered judgment against the plaintiff in a 'm ()58 EXECUTION. 1 I- Justice's Court for I'JJ 7s.; tlip execution issued stated the amount to l)e tliirtif'Xi'ri'H HhilliiniH, which sum the plaintiff tendered to the defendant, who refused to receive it. //<■/(/ That the execution was not a nullity, and that trespass would not lie against the defendant and the constable for imprison infT the plaintiti" on the execution after the tender of the tliirty-seven shillings. Caruutti v. WUmtit, Tiin. T. 18(14. 14 -D«'l(toi- pointing: out |>ro|>t>i'ty lo <'oiiNtabl«>-Duly to M'i'/.<* it. Where the del)tor points out property to the C()nstal)K' to levy on it, it his duty to seize it, unless he has reason- ahle grounds for l)elievinf^ that it does not belong to the debtor. Hunter v. Mdtldo.c, 1 Ildii. 1(52. lit— Dii'«M-x4>4>iitioii to iiiiy <'oii««tiii>li'. The Act 22 Vie. cap. 27, authorising Constables to serve pi'o^ esses in any part ot the County in which they are appointed, an execution issued out of a Justice's Court, under 1 Kev. Stat. cap. 187, may he directed to any Con- stable iif tlic Coiintff. The deviation from the form pres- cribed l)y cap. 137, does not affect the substance of the exe- cution. Atliiii'iini V. Iti'suHniiJ, 5 All. 564. 14 -Property liable to Moi-/.iiro— Interest in Loi;<«. Plaintiff ol)tained a license to cut logs, and agreed with A. to cut and haul the logs, put the plaintiff's mark on them and take thera to the mouth of the Ororaocto for him ; plaintiff" to furnish the sup[)lies, pay the wages, aud sell the logs at Saint John ; and after deducting stumpage, freight, supplies, etc., pay A. any balance that might re- main. Hell, That A. had no interest in the logs that could be seized under execution. Pelton v. Temple, 1 Han. 275. 15— Husband and Wife— Separate property. Land was conveyed to a married woman, for life, for her separate use ; it was managed under her directions, EXECUTION. 65^ and tlif ial)our paid for by the produce of the land, thf liusl)aii(l not interfering except as lier agent. Tlehl, 1st. That under the Uev. Stat. cap. 114, the crop, when severed, did not Ix'conie the proi)erty of the hasl)and, and was not liabk' to seizure under an execution against him, 2nd. That an action for seizing the crop, under execution against the husband, was rightly brought in the name of the husband and wife. Ihtw auil wife v. l>\hblee 1 Jhiti. 55. 16 When a husband and wife reside on land of which the wife has the fee, the husband is tenant by the courtesy, and the crops raised by his labour and the labor of his servants and children, are his and liable to seizure for his debts, and the Sheriff may enter to make a levy, hi the absence of title, the possession is the possession of the husband, Pnnry'r and Wifev. Itinfmond, 1 ILtn. 512. \1 Real estate, in remainder or reversion, may be taken in execution, and sold at Sheriff's sale, under the Act 26 Geo. Ill, cap. 12 See l>oe v. Hazen, ^aU. 87. Eoliilo or illoi'tgn^c ill f'«>i>, not liublo. .SVc Supra I. 3. I§-Rt'nl i>MtHlc ortCMtntor. Land which belonged to a testator cannot be taken in execution on a judgment recovered against his executor for a debt due by the testator, either under the Act of Parlia- ment 5 Geo. II, cap. 7, or the Act of Assembly 26 Geo. Ill, cap. 12. Real estate descends to the heir. License to sell requisite before divested. l>oe dein. JIarex. MeCall, C. Ms. 90. 19-liiipropof difiicliarge or debtor bj^ Jiidge^H order— Nsiiing: fl. fa. One of two joint debtors in custody on execution, was imiiroperly discharged by a Judge's order ; the plaintiff's attorney, without applying to rescind the order, issued a fi'Jo, Held, That it was not absolutely necessary to re- scind the Judge's order before issuing the Ji,. fa., and it was allowed to stand— the plaintiff undertaking not to issue 660 EXECUTION. another cd. an. or take any proceedings against the dcfen- (lant's sureties in consequence of his discharge. Hiuinn v, Whitehead, Ilil. T. 1871. 40— Lo«<>i ol |>i'0|»(>i-(.v by KiKuili-Liiihility ol <'\4>ciiiioii criMlitor— diiiiii*ttiiiK Suitt ut Law. See Practice in Equity II. 4. I exociitiuii EXECUTORS AND ADMINISTRATORS. GGl Bi'jiK'viii— S*'!***'"**" Ext'Ciilioii. Sec Costs 139. Head v. Botn/ord. Iimolvcnt Debloi' ccoiid <>\(>ciitioii ii^ahiMt. Sir Insolvent Debtor 17. llciiiorisil— Priority ovoi- ^iil»«i>c(iiic>iit jiidgiiieiit and ('\<>Mlti4»ll. Sic Mr'Hiorial. Foiiii(l:i^<>. See Sheriff. ('o*>i*> of .4|>|><>al fVoni 4lcri!i«ioii of .IiKlgo in Equity n'<-ovci-ablo by atta<*liniciit, not by execution. See Costs 91. Si)iith v. Armstrong. EXEil TOKS A^D ADITII1VISTRATOK§. I. Actions by and against. II. IliOHTs AND Liabilities. III. Executor De Son Tort. IV. Administration — Grant of — Proof — Probate. V. Miscellaneous, I. Actions by and against. I-Dcbt loi- M|>crific lcg:aey. A legatee may maintain an action of debt against an executor for a certain legacy given by b.is testator. Living- stone \. pmvcll et. al., Executors of Poivdl, Ber. 225. {See Action at Law IX. 16.) 'i-^ii«^l>('ii»iiou of action. Actions against executors or administrators for tlie recovery of debts due from the testator or intestate, are not suspended for eighteen months under the Act 3 Vic. c:ip. 61 ; the thirty-tifth section has no such operation. (''"i/'//i' V. Mordunisc, 2 Kerr 311. 662 EXECUTORS AND ADMINISTRATORS. 3— Sot-oll— Bond— Penalty. In an action against an administrator on a promissorv note given by the intestate, he pleaded plciie adminiittrarit and gave notice under the Statute of a bond debt due and outstanding, and no assets idtm. Held, That the sum actually due on the bond, and not the penalty, was the amount which the defendant was entitled to set off affainst the assets in hand. Sherlock v. McGee, 2 Kerr 508. 4— .4<y ^c- <|U«'atiic« in iiand!!> ol tiiird— Venlicl lor dc- fendantN. In an action against three defendants, as executors, two of whom had fully administered, and the amount in the hands of the other defendant was very small, the Court refused to set aside the vi rdict in favour of all the defendants. The plaintiff might have had a verdict against the defendant shewn to have assets in his hands. Crookshank v. McFarlune, 2 All. 544. « Executor of the assignee of a bail bond may bring an action upon it. Scribner v. Oibhon, 4 All. 182. iPliil, iiy, .V EXECUTORS AND ADMLNISTRATORS. 663 T-Kxeiiiloi's nppoiiitcd by powei in will— Riiglit to •iiie. A testator named seven executors in his will, and directed that if any of them should die or renounce, the remaining executors should by writing appoint others in their place, so that the same number should always exist. Two of the executors named in the will died, and the survivors appointed two others, who were sworn as executors, and probate granted to them by the Judge of I'robates, after the original probate granted. Held, That these seven persons could sue as executors. Wrhjht v. St'irkhoHsc, 5 All. 450. h-t'ovt'iiaiit -Bi-cacli in life time of testator. Where breach of a covenant for title and the damage resulting therefrom, both occurred in the life-time of the testator, the action for such breach should be brought by the executor. Sec Covenant 14. « If covenant for title is broken in the life-time of the covenantee, no estate descends to the heir, and an action for the breach is properly brought by his executor. Set! Covenant 14. lO-Proviii^ promise. In an action by an administrator for work and labour of the intestate, and alleging only a promise to the admin- istrator, the plaintift' must prove the promise as laid. SkTcimn V. Perley, 3 Kerr 398. II. Rights and Liabilities. i- Executors of deceased aflniinistratoi*. The executors of a deceased administrator have no light to tile an account of his administration in the Pro- Ijate Court ; nor has the Judge of Probate any authority to pass such an account if filed. In re Frost, 1 Han. 127. '•* An administrator cum tcsiamaito annexo died without having tiled any accounts of his administration. ^^^Miliiliai 'I ()<;i EXECUTOllS AND ADMlNfSTliATOUS. Jlrlil, Tlmt the Trobato Court, on the .'ii)i)licatiou of tlu' roBidujiry logatcoH under the will, had no jurisdiction to pass accounts lilod by the executors of the deceased admini- strator ; an administrator da bonis iioii, cinn tcHtumculi, nn. ncxo, who would be bound to account, and to whom tho executor of the deceased administrator would liable in tlu- first instance. In rr I'.'i^i't'H estrdCyit All. 48'2. 3— U<-4'ii«><> lo M4>ll— I\o \vsiiv<>r ofriKlii to •■icli liy will. Executors obtaining license to sell from the Governor and Council, do not waive any right they have to soil un- di'r tlie will. Doc dcm. Pike v. Ticniei/, Hit. T. 1831. I— >li'iitoi'— Allo\vaii4'4>. A claim of an administrator against the estate for maintenance of the intestate may be included, in and allow- ed in his account passed by the Probate Court ; but Hit' claim must be limited to six years. E.r parte llothi 5 .1//. 400. * Where the Probate Court allowed the adminis- trator's claim for maintenance for ten years, but during the first four years of that period he had received the pro- ceeds of the intestate's farm, the amount of which he had a right to appropriate towards the payment of his cliargi? for maintenance, the Supreme Court, on appeal, ordered the difference between the two sums to be deducted from the administrator's account. Ibid. 6 — A|>|»licali4»ii 4»r a!!>!!>cti!i to payiiiciil 4»l Exenitur'^ claim. Where there is no fraud or collusion, an executor may apply the asuets of the testator in payment of his own debt ; though in case of a deficiency of assets to [lay debts or legacies, the alienee of the property (knowing that it belonged to the estate) may be liable in equity to credit- ors or legatees, or the next of kin. Allin(jham v. Danvi Trin, T. 1871. »— Wo right to pay d4;bts in preference, nor ictaiii. Where the Act 26 Geo. Ill, cap. 11, sec. 18, directiiiL- ,;ll EXECUTORS AND ADMINISTRATORS. 665 executors, where an estate is insolvent, " to divide it in due proportion to and among the creditors," — it is their dutv to pay debts accon^tng to the common law priority of classes, and pnri passu in each class, and they have no right to pay any one creditor in preference, nor to retain for the whole of their own debts of the same class. Joseph V. McLeod, TriH. T. 1883 %■ Co!itH-LiHbility to. If any executor declares on promises to himself, he is liaMe for costs. Executors of Grosvonor v. Agnew, Her. 29. 9 An administrator will not be relieved from hia liability to the payment of costs, under Act 7 Wm. IV, cap. 14, sec. 23, where he moves, not on matters appearing at the trial, but upon affidavits which are sufficiently answer- ed by the defendant. Semble, That Act extends only to cases in which executors or administrators were before that Act exempted from the payment of costs. Thompson Alkiishiiw, 1 Kerr 209. 10-Ab**(oiidiiig debtor holding property as adminis- trator—Trustees not entitled to. See Absconding Debtor 4. Il-Assigiiiiicnt of mortgaged land. An executor cannot assign the legal est^fte in land mortgaged m fee to his testator, unless the land is devised to him : without such devise, his assignment will operate only as a transfer of the mortgage debt. See Doc v. Han- son, 3 .4«. 427. I'2-Deposii or money by twro r arsons— Death ofone^ Right of administrator. A sum of money was deposited in a bank, for which a receipt was given in the following words : " Received from PC. and H. C, to be drawn by either of them, or the sur- vivor, $1400, for which we are accountable with interest, on receiving fifteen days notice." P. C. sent the receipt to the bank, and applied for the money, but the Manager not being satisfied that the person who brought the receipt ! 666 EXECUTORS AND ADMINISTRATORS. had authority to receive the money, dechned to pav it. P. C. died three days after this. Held, That on liis deatli the right to receive the money vested in H. C, and that P. C.'s administrators could not recover it from the bank. Condon v. Bankof B.N. America, Trin. T. 1870. 13— Bniik Stock iiiiclisposcd of— Snspen««ioii oi pay. niciit by bank— Liability ot (^xc>cutor<«. A testator died possessed of bank stock, which his ese- cutors allowed to remain undisposed of, and received the dividends. By the terms of the bank charter the Stock- holders were individually liable for the payment of the debts of the bank, in proportion to the stock they held. About two years after the death of the testator, the hank suspended payment, and was wound up under the Act 27 Vic. cap. 44, and a call made on the executors as contri- butories. Held, That they were liable therefor in their representative capacity, and that the payment of legacies under the will could not be allowed against their conting- ent liability to calls under the charter. McKenzie, Curator dc.Y. King, Mich. T. 1871. 14 — Liability of testator as executor — Invciitor)- Legacy charged on land- Gxecutor^s ac<-oiiiii«i. A liability of the testator as an executor, is a debt chargeable on the funds bequeathed by him for payment of his debts, though his liability may arise from a devas- tavit. Rent payable on a lease under seal executed by the testator, is also chargeable on funds, so bequeathed, though such rent does not accrue till after his death. Land was devised to an executor to sell, if necessary, to meet any deficiency of assets for payment of debts and legacies. After the execution of the will, the testator conveyed the land to the executor, who undertook to pay the piirciiase money, and charged himself with it in the inventory. H-hl, That he was liable for the amount, and that it formed part of the residuary estate. Wetmore ct (d v. lu'tchum, o All. 408. 15 When a legacy is charged on land devised, i* should not be included as a payment by the executor, m his account with the estate. Ibid. EXECUTORS AND ADMINISTRATORS. 667 III. Executor de son Tort. l-lVirc contiiiiiiiiir business nftrr the death of hus- band. The wife of a grocer and liquor seller, who continues after bis death to keep the house open and sell liquors left therein at his decease, is made thereby an executrix dc son tori; and cannot protect herself under the plea of ne mqiics executrix against a demand by a simple contract creditor of her husband, by shewing that there was an outstanding judgment against her husband for an amount exceeding all the assets of the estate. Keitli v. Perks, 2 Kerr oo2. 'i-Bi'otlicr of decenseil— Agi'ceiiieiit lo take property niid pay debts — Parties to agreement — Snb«*e- qiioiit disciiarge. The brother of a deceased person, at the request of bis creditors, made an agreement with them to take the property of the deceased and pay them a proportion of their respective claims on getting a discharge. The pro- perty was placed in the hands of a third person by the creditors till the agreement could be performed, but it was soon afterwards abandoned. Held, That all the parties to the agreement were liable as executors de son tort, but tbat they discharged themselves from liability by after- wards delivering the property to the administrator before action brought. Crookshank v. McFarlanc et uL, 2 All. 5^-': '^iiiieddliui; witii g[oods. v,.y dealing with the goods of a deceased person, uy 1 ihe party so dealing assumes to exercise a control over the goods, is evidence against him as executor de son tort. Powell v. Wathen, 5 All. 258. 4 In an action charging a person as executor de m tort by meddling with the goods of the deceased, a declaration of the deceased, while in possession, that the goods did not belong to him, is evidence for the defendant. m. 1' ) ■ 668 EXECUTORS AND ADMINISTRATORS. li IV. Administration — Grant of — Proof — Probate. 1— Aeling as Administrators— Entry in boolc. The plaintiff claimed under a deed from two persons as administrators, but there was no positive proof that letters of administration had been granted, and no admin- istration bond could be found or was known to have existed ; the Court refused to disturb a verdict for the defendant, finding that no letters of administration were granted, though the vendors had acted as administrators for several years, and though it appeared by an entry made at the time in a book kept by the Judge of Probates that administration was so granted : it being uncertain whether this entry was an official act — the case having been tried before — and the plaintiff's right to recover bemg doubtful on other points. Doe v. Read, 1 All. 68. Semite, Adiiiinistration, if granted, is not void for want of an administration bond ; but the absence of one is a strong fact to rebut a presumption that administration was granted. Ibid. 3— Remaining good until revoked— Seal— Surrogate's Acts. Administration irregularly granted (as to a creditor without citing the next of kin,) remains good till revoked by the proper Court. Letters of Administration must be under seal, but no particular impression is necessary. Any seal used by the Surrogate for the purpose is suffi- cient, till a particular seal is provided. It will be pre- sumed that a person acting as Surrogate has taken the oath of office ; but if he has not, his acts will not be invalid if he has been appointed to the office. CrooMank V. Giherson, 2 All. 644. 3 Affidavit endorsed on deed, not evidence of grant of administration, iiee Evidence IV. 2. Wiiat it is evidence of. See Evidence IV. 3. EXECUTORS AND ADMINISTRATORS. 669 4-Letters of Administration— Evidence of inte«tate*s dentil* See Scrihiier v. Gibbon, 4 All. 182. ^y Probate of Will, though registered, is not evi- dence of a due execution to pass real estate. See Hamilton V. Love, 2 Kerr 243. 6-Forcig:n Probate— Pleading. Probate of a Will in Nova Scotia gives no title in this Province ; nor will probate granted in this Province, after declaration and issue joined, support an action by the executor. Mitchell v. Long, C. Ms. 76. V. Miscellaneous. Assumpsit on Promises and Foreign Jndgmcnt.; See Pleading I. 19. Promises iaiHili of iiusbanci— Separate earnings ot| wife. Sfc Husband and Wife. ProinUsory note to A. or iieirs— Rig:lit to. Sec Bills and Notes I. 7. ^iirroj^ate €oin*t— Decision— Finality. See Surrogage Court. Discharge of Debtor by persons beneficially intwed sntn- clency of . ssets. See Coy v. Coy, 1 Han. 177. License to sell land— Irregularity of piocrcdiiiKs- Remedy. See Df:ed I. 40 EXOIWEKETIJR. See Bail. The Bail are entitled to have an exoneretur entered on the bail piece, although the defendant may have escaped between the time of render to the custody of the gaoler and notice thereof to the plaintiff's attorney, when such notice has been given in a reasonable time. Six days is not an unreasonable time for this purpose. Hatch t'ord v. Giles, 1 Kerr, 459. Double arrest. See Practice. VI. 26. EXPERTS. See Evidence VIII. 14, 30. Witness. EXPULSION. See Trespass. EXTINOUISHllIENT. See Suspension — Satisfaction. Bills and Notes V. 29, 30, 31. Mortgage 17. , . EXTRACTS. >S't't'\Evidei.ce. EXTRA «¥ORK. See Assumpsit III. Contract 10. FENCE VIEWER. 678 FALSB liUPRISONIVIEIVT. See Trespass. FALSE PLEA. See Pleading. FALSE KEPKESENTATIOI¥. See Warranty Fraudulent Representation. FALSE RETIIKIV. See Election Law. Action mufnin^it Shcrifl Tor. See Evidence III. 7. Constable iiinkiiiK. See Constable. FALSE state.iie:^t. See Insurance 28. FEES. See Attorney General — Attorney — Criminal Law- Costs — Sheriff. FElftMED ISSUE. See Practice XII. FELOM¥. Sec Criminal Law. Trover 3. FENCES. \Vilfully injuring a fence under the 1 Ect. Stat. cap. 153, sec. 11, is not punishable by summary conviction. — Sed qu(ere. See Justice of the Peace lY. 11. Duty ofCoiiiniissioiicrs of Highways to remove fence See Highway 16. Breaking into field under lawful fence. See Trespass II. 2. FENCE VIEWER. Person employed by— Iflay;niaintain action. See Action at Law IX. 8. 674 FIEES. FEOFFiHEWT. See Deed. FERRY. The Charter of Fredericton, 22 Vic. cap. 8, which gives the Corporation power to establish and regulate ferries within the limits of the City, does not take away the right to a ferry previously granted by the Crown, nor authorise interference with such pre-existing ferry. University of New Brunswick v. McClusky, 6 All. 186. The Crown granted a ferry across the river Miramichi between the parishes of C. and N., opposite the Court House of the County, and communicating with the hi"h* way on each side of the river ; the landing used on one side of the river was about two hundred yards above the Court House. Held, That it was an infringement of the grantee's right to establish another f jrry landing at the same place. Fraser v. Drr/nan, 4 All. 74. FERRY BOATS. The title of ferry boats running in the harbour of St John must be transferred according to the provisions of Merchants' Shipping Act. Lloyd v. E. tO N. A. Rallwaij Co., 2 P. d- B. 194. FIELD DRIVER. See Damage Feasant. See Execution. See Practice. FIERI FACIAS. FILIIVO PAPERS. FIMES. See Justice of the Peace (Conviction). FIRES. An action of debt will not lie to recover damages sus- tained in consequence of a fire kindled by the defendant, the remedy by action of debt, given by the Act 26 Geo. Ill, cap. 30, relating only to the recovery of the penalty thereby imposed, and not interfering with the coxmon law remedy. {See Wiley v. Crawford, 1 B. d- B. 253.) Himel T. Sdi- erland, C. Ms.\QO. FISHERY. 676 Watei- Company— Duty of keeping water to prevent See Water Company, Anion by Landlord— Preniit^es burnt by fire by alleged iicg:liH:ence ot tenamt. Src Action on the Case I. 2. ArcHlciilal Fire— Liability Tor. Sfc Action on the Case I. 1. FI8HERV. By the Act 14 Vic. cap. 31 , the Governor in Council was authorised to grant leases or licenses of occupation for Fisliery Stations on the ungranted shores, beaches or Islands of the Province. A grant was made to the plaintiff for the exclusive leave and license to occupy and enjoy as a Fishing ground for the t«,rm of four years, a lot or beach abutted and described as follows, viz : lot No. 4, on the outside of Potcage Island ; with the full and exclusive priv- ilege of using the said lot or station as a Fishing station. H(l(l, That this grant did not convey any right of fishing, but merely a right to occupy a certain portion of the shore, and therefore that the defendant was not liable to an action for setting nets in front of the plaintiff's lot below low water mark, and therefore preventing the fish from entering the plaintiff's nets. Hierlihy v. Logrjie, o AIL 204. '■*• The right of fishing in a public navigable river b'-longs to the public, and not to the owners of the lands bounded on the river. Rose v. Belyea, 1 Han. 109. si-Woii'-Eiection ot. No action can be maintained for erecting a fish weir between high and low water mark in an arm of the sea, wbtreby fish, which otherwise would have been caught in tbt plaiutln s weir, were caught by the defendant. Cheney "f-'M'fdilEfist. 7. 1871. 4-Ki|,'|it ill Dominion of Canada to grant exclusive liglit ot flsliing in rivers above flow of tide. Plaintiff" was lessee of a part of the South-west Mira- ir.iclii River, for the purpose of fly-fishing for salmon, by «76 FISHERY. ▼irtue of a lease granted to him by the Minister of Marine and Fisheries under authority of the Fisheries' Act 31 Vic. cap. 60, subject to certain conditions and provisors, amone •which was one providing that actual settlers should enjoy the privilege of fishing with a rod and line in front of their own properties, and the Minister also reserved the right of four rods. Defendants, being British subjects, entered upon a portion of the river leased to plaintiff, and fished for and caught salmon against the will of the plaintiff, for which plaintiff brought an action of trespass. That part of the river in which the alleged trespass was committed was above the ebb and flow of the tide (as in fact was the whole of that part of the river leased to plaintiff,) and was navigable for canoes and small boats to pass and repass thereon, and had been used since the earliest settlement of the country by the public as a highway for such canoes and small boats, and to float down loose timber and logs to market in very large quantities. The lands bordering on both sides of the river were granted by the Crown to the New Brunswick and Nova Scotia Land Company, who had conveyed a portion thereof to different persons ; the bed of the river was, however, in the grant expressly excepted therefrom and reserved. A case being stated by agreement of the parties, for the opinion of the Court. Held, iPer Allen, C.J., and "Weldon and Duff, J. J.; Fisher, J., dissent- ing,) That the Dominion of Canada, under "The British North America Act, 1867," and Fisheries' Act of Canada, had power to grant the lease in question. Semble, That in non-tidal rivers, when the bed of the river is reserved, and remains the property of the Crown, the public would have the same common right of fishery that they have in tidal rivers and arms of the sea. Semble, That where the land bordering on a non-tidal river is granted, without the bed of the river being reserved, and the grantee has, by law, the exclusive right of fishing in front of his own land, ad medium filium aqiue, the Fisheries' Act would not authorize the granting of a lease. Jtobertson v. Steadman, 3 Pug, 621. FOREIGN FISHING VESSEL. 677 FISHINO VESSEL. See Foreign Fishing Vessel. FIXTURES. 1-Lniidlord and tenant— Agreement. An agreement by a tenant of a shop, that if the land- lord would make certain improvements, the tenant would put in gas fittings and leave them there when the lease expired, is executory only, and vests no property in the gas fittings in the landlord unless they are left by tha tenant in the shop. If they are removed by the tenant before he leaves, the landlord cannot maintain trover for them. Dunn v. Gairett, 2 All. 218. *J-Biiilding: erected on land of another. Where a building is erected on the land of another, the fact as to whether or not it is a fixture, and capable of removal, depends in most cases upon the intention of the parties at the time of its erection, and not upon whether or not it is fastened to the soil. Fouier v. Fowler, 2 Pug. 488. 3-Biiilding merely resting on land. When a building is erected on land, but is no further attached to it than by its own weight, it will become part of the freehold if it is apparent it was erected with this intention. Domn v. Willard, 1 Pug. 358. FORECLOSURE. Sec Equity. Practice in Equity. Mortgage. FOREIGN CORPORATION. See Corporation. Iiisiirniice Company doing business in Province. See Insurance 61. 52. Allison v. Robertson. Jones v. Tai/ior. Whether debts due by, can be gnrnisliecd. See Attachment 61. Ranney v. Morrow. FOREIGN FISHING TESSEL. Defendant, an otilcer appointed by the Canadian Gov- 1! 678 FOREIGN LAW. eminent for the protection of the Fisheries, seized a vessel belonging to the plaintiff in the harbour of Gaspe, in the Province of Quebec, on the 18th August, for an alleged breach of the Act relating to fishing by Foreign Vessels (31 Vic. cap. 61,) and on the 22ncl August brought the vessel to the Port of Shediac, in the Province of New Brunswick, but did not deliver her to the Collsctor of Customs there. The Act directed that vessels seized should be '^forthwith delivered to the Collector or other principal officer of Customs at the port nearest the place ■where seized." There was a Collector of Customs at Gaspe, and at several other ports nearer than Shediac. No proceedings having been taken towards the condemna- tion of the vessel, the plaintiff replevied her on the oth Sept. Held, per Ritchie, C. J., Allen and Weldon, J. J., That by taking the vessel to Shediac and retaining her there in his own possession the defendant becarae a tres- passer ab initio, and that replevin would lie. Per Fisher and Wetmore, J. J., That by the seizure the vessel was in custody of the law, and therefore replevin would not lie. McGoican v. Beits, East. T. 1871. FOREIOIV GOODS. See Custom Duties. FOREIO^ .TlIDOiVIEx\T. See Judgment. FOREIO]\ LAW. I Plaintiff became surety for the defendant in au administration bond in Massachusetts. On passing thf defendant's accounts in the Probate Court there, a balauot belonging to the estate was found to be in his hand, which he neglected to pay, whereby the bond became forfeited ; the defendant then resigned the office of administrator, and the plaintiff was appointed administrator dc bonis wn. In an action in this Province, for money paid by the plain- tiff to the defendant's use, it was proved that by the law of Massachusetts the amount for which the plaintilf was liable as surety in the administration bond was considered pp^"^ FORMEK RECOVERY. 679 as paid by liim by operation of law on his appointment as administrator — he being thereby made liable for the amount— and that he could therefore maintain an action against bis principal for money paid. Held, That such being the foreign law, the action was maintainable her*-. Videntine v. Hazelton, 1 Han. 110. 2 Foreign law is a question of fact, to l)e found by the jury, and not to be determined by the Judge ; therefore, when the plaintiffs, in order to prove their right to sue, as Receivers of a Foreign Corporation, put in evidence the Statutes of New York, providing for the winding up of Insolvent Corporations and the appoint- ment of Receivers by the Court of Chancery ; and also proved l)y the evidence of a witness, that Insolvent Cor- porations were wound up, and Receivers appointed by the Supreme Couvt of the State, without any explanation to shew that the Statute had been altered, and the jurisdic- tion taken away from the Court of Chancery ; and no question was left to the jury as to what the foreign law was ; a verdict for the plaintiff was set aside. Osgood v. Hatch, Mick T. 1872. a The written law of a foreign country may be proved by a skilled witness, without the production of the law itself; but where it can be produced, it is more satisfactory than verbal testimony. Osgood v. Hatch^ Mich. T. 1872. FOR£ION PROBATE. See Executors and Administrators. FORFEITIRE. Sec Crown Grant. Custom House Entry. Justice of Peace (Conviction). FORGERY. Sec Criminal Law. FORMER RECOVERl . See Action at Law VIII. 3. Evidence III. 17. Justice of the Peace V. 5. Landlord and Tenant VII. 5. 680 FRAUD. P A verdict recovered without judgment signed cannot be pleaded in bar to an action between the same parties. Gilbert v. Graham, East. T. 1873. When admissible in evidence in Replevin without being pleaded. Sec Evidence III. 17. FOKIflGB DECISION. Kcvei'sai. Where it appeared to the Court that a former decision was inconsistent with the right application of a clear and well established principle of law, it reversed the former decision without the intervention of a Court of Appeal. Allen, J., without differing from the rest of the Court as to the principle of law, thought that the Court having, in Calhoun's case, decided that persons were not disqualified from acting as commissioners by reason of being land owners, the Court was bound by that decision until reversed by a Court of Appeal — Regina v. Commissioners of Sewm, Germantoicn Lake, 1 Han. 343. FARIflS. See Justice of the Peace IV. V. Bond C. FOUR DAY RULE. See Error 5. Judgment signed in term, 20 days having elapsed since verdict, not necessary to enter four day rule. Jones ?, Betsford, 3 Pug. 489. Fraction of a day. Sec Execution I. 7 21. FRAITD. ^^i^ Ijffaiinent or goods— Defeating execution — Bona Fides. Sec Assignment 1. Goods claimed under previous assignment— Taking on execution bona fldes. See Assignment 2. FKAUDS ^STATUTE OF), 681 tMnif coil* <'ye«l *»»• «i'«ii«lMl«?"t piirpo^o - Ti'n$ite<' boiiiHl to «-ou%'ey— Avoi«lJiiie<' by iiiraiil 4'OMtiii qiif triiM— FrniKl a qiK'Mtion roi-jiii-y. See Infant 5. Jiidgiii«nt Oil awJiMi— St'lliiis a^ido lur liaiid. Sec Practice VI. 5. I, ,„^(._Conti'a volition ol'agroeiiicnt— CogiilasaiK'*'. Sec Landlord and Tenant VI. 1. K4>lvsi»<<'— ^"■'^■^'**'^ plaiiitill ttottiiig a»«ide for fraud. Sec Practice VI. 1. False Declaration— 0*viicrHlii|» of Siiip. See Shipping Law G. Tiiistdccd-C'roditois— Fraud. See Deed III. Warrant of Attorney— letting: asido for fraud. See Warrant of Attorney. Contesting receipt on ground of fraud— Attorney pro-^ cecdiiig to trial after receipt given. See Eeceipt. FUAIJDS (STATFTE OF). Sec Contract — Agreement — Guarantee. I liitcre§l 111 land— Licen^ie to cut tiinl»er. A license to cut a quantity of timber within certain iirescribed limits, diid to remore the same, does not convey liny interest in lands under the Statute of Frauds, or give any property in the standing trees. Kerr v. Connell, Ber. 133. 'i Delivery of goodw - Acceptance. A mere delivery of goods by the vendor without an iutual acceptance by the vendee of some part thereof, is not sufticient witliin the Statute of Frauds. Doley v. yUrh, Ber. U(S. The receipt of goods by a common carrier from the voador, without any specific direction or authority from the vendee, will not amount to an acceptance by the vendee within the Statute. Ihid. 48 (582 l'i;AU])ULENT CONVEYANCE. 3— Jii»>ti«-<'% 4'oiirt. The Statute of Frauds is equally applicable to ca.-,! ,s brought in the Justice's Courts, as to actious brou"ht in other Courts. McKecn v. Broun, KnHt. T. 1831. 4— Debt of lliii-d party. B. applied to i)laintiif to hire a horse and was refuscil, defendant then said to plaintiff " Let him have the hoisc and I'll be responsible if anything goes wrong." Plaiutili' thereupon let 13. have the horse and he injured him. Held That such promise was within the Statute of Frauds, and not being in writing, defendant was not liable. Ilaimn v, McAfee, 5 All 886. •S— L<>H*se loi- tlii'cv y<>sii-K fi-oiii f'litiirf tiiii<>— Tciiniu;.v, A verbal agreement to lease premises for three years from a future time is void under the Statute of Frauds, and although by entry and payment of rent to the mort- gagor in possession, the party would become a tenant from year to year, as to him, he would be nothing more tlian <>iii('iit to I'ciiiaiii out of l>iiMiti«'!!>M for n year. An agreement stated in the declaration, that defendant would remain out of business for a period of nine ninntli>, from tlie liiue when plaintiff siicuhi hegin business, wliiiii is alleged to have been three montbs after the making ot the agreement, is substantially proved by an agreement that defendant would remain out of business for a year, and such an agreement is not within the Statute ol Frauds. Whittaker v. IVdch, 2 rinj. 4:i6. 7- C'oiilrart not in \%i-:ii:>{; <'oii«litioH tiilfilll LIv\T K&::i'l{L:*iii::\TATIO\. See Warranty. L., rL'Biding in St. John, drew bills of oxchangu on plaintiff at Liverpeol, which he accepted for the acconimo- ilatiou of the defendants, who agreed to guarantee the payment of them at maturity : these bills would fall due on the '2nd Sept. 1808, on the 11th August L. drew other liills on the plaintiff, also for the defendants" acc(jmmoda- tioii. The plaintiff received L.'s letter advising the ilrawiug of these bills, on the •24th August, and not having at that time received funds from the defendants to take up the Ijills falling due on the •2nd Sept., telegraphed to L. that unless those funds were sent he would not accept the hills drawn on the lltli August. At this time L. had become insolvent and left the Province, having assigned his property to trustees for the benefit of his creditors. The trustees received the plaintiff's telegram, and took it to the cashier of the Bank who knew that L. had absconded, and an answer was sent to the plaintiff by eahle, in the name of L., stating that funds had been sent by the last mail, which was the fact. In consequence of this answer the plaintiff" accepted the bills drawn on the nth August, and was obliged to pay them, L. not having -hipped cargoes of lumber as he had agreed. The telo- L;i'am sent to the plaintiff was in the handwriting of one of L.'s trustees, but was sent to the telegrapli olH(!e by the cashier of the liank, and the cost of transmitting it charged to L. in the Bank books. The cashier swore that it WIS sent by direction of the President of the Bank, but lie, and also the Directors, denied all knowledge ot it till several months afterwards, and after the cashier had hecouie a defaulter and absconded. Held, in an action against the liank for falsely representing by the telegram that L. was in St. John, whereby plaintiff' was induced to ii"cept the bills, (per Allen and Fisher, J. J., Weldon, .J., ^lisucnticiiti',) That answering the telegram addressed to L. - ■»"***« » '^ 684 FEEDERICTON (CITY OF). ili ; ft was not within the scope of the cashier's duties, and therefore that it shouhl have hoen left to the jury to find whether the answer was sent hy the authority of the Directors : and qiueve, whether the Stockholders would be liable even if the Directors had autliorized it. Per Weldon, J., That as the telegram to L. related to he payment of the bills of exchange in which the hank waij interested, the cashier had authority to answer it, and tlie defendants were liable for his false representation. McKuji V. The Commercial Bank, 1 Vug. 1. Kcvci'fiiod oil a|>|>(>Hl to Privy f'oiiiiril. See L. R. 5 Privy Council Appeals, page 81t4. FRAUDtrLEn^T TKAliSFER. See Evidence I. 14. FREDEBICTOW (€ITV OF). See By-Laws — Corporation* — Coats — Justice of the Peace. I— Offleiiccs— Trial— .luMlice ofPeaco of Coiinly not an Alderman— IVo riKlit to f^it with Mayor. Under the Act 20 Vic. cap. 38, which requires all of- fences committed in Fredericton, and punishable by sum- mary conviction, to be tried before the Ma3'or and an Alderman ; a Justice of the Peace for the Couuty, who is not an Alderman, has no jurisdiction to sit with the ifayor and try an assault. Ex parte Huylicy, 6 All. 59. !2— Mayor— .liirisdiclioii. The jurisdiction of the Mayor of Fredericton as a Jus- tice of the Peace, under the Act 22 Vic. cap. 8, sec. 82, is limited to matters arising within the liuiits of the CiU : therefore, he has no riglit to sit in the Seosious of thf County of York on the trial of a bastardy case arising out- side of the city, lieif. v Carson, G All. 138. :t— Right to vot<'— Asisessment in each Ward. A person assessed on property in several Wards of tlie City of Fredericton, has a right to vote in each Ward iu which he is assesed, under the Act 22 Vic. cap. 8, sec. 17. The election for each Ward is a different election. Ex parte Grieves, 6 All. 56. FREDERICTON (CITY OF). 68;j l-roiiti'iH'tor— liit<>i'«'-<'oui|>lsiiiit— Pi'OM«>4>iitioii tor eiiK^atfiii^: in occupa- tion witlioiit iicciiMC — liitoi'iiiatioii. A oomphiint against a party, under 20 Yic. cap. 38, sec. 2 for engaging in an occupation in the City of Frederic- ton, not l)eing a rate-payer of the City or County, or licensed, should be prosecuted in the name of the City Tieasaier. For the recovery of all tines and penalties under any Act relating to the municipal affairs of the City of Fredericton, the information should be laid by the I'ity Treasurer, or by his authority : and a conviction therefor, founded on the information of a common infor- mer, cannot be sustained. Ex pirte Eni/lus, 2 Haii, 51. (i-.Yfsiyof a uiiiiistcrial otiiccr— Rcruifial to ttwcai* in |M'i>oii pro|>(;iiy i-vtai-iKMl. The Mayor of Fredericton, in swearing in an Alderman elect, under the Act 22 Vic. cap. 8, is merely a ministerial otiicer, and has no power to refuse to swear in a person properly returned by the presiding officer as duly elected ; ou the ground that he was (_in the opinion of the Mayor) ilisqualitied by law from being elected. Ex parte Richards, i Han. 181. 'Quo Warranto— Di««ci'ctioii ol Court in gi-antiiiK— .Haywr-Cloiiection of nioney»t by. The granting a quo warranto being discretionary, it was refuse], withoat costs, on an application against the mf 080 FIlKDKiaCTON ^CJT^ OF). l\fa\()r of Frt'dcnctoii, on the jj;v()uih1 tlint he was (lis(|iiuli. lied I'roin holdiiif^ t]\v otTico, by reason of his luiviiiir iju. I'vopcrly litld iiioiicy in IiIh hands hoIon,nin;j; to the ('itv • 110 cornqjt motive being charged against him, the iimount lieing small, and tlu' object of the relator in maluii<; in making the ap[)lication, not fre(> from sus[)ieion. F.rparf,' Torrriix, 2 Haii. ^\n\. Scnihlc, That the Hth seotion of the '22 Vic. cap. H, and the '2nd section of !V2 Vic. cap. 87, do not apply to inoiicvs collected i)y the ]\rayor as fines imposed for ..olation oftlu City bye-laws. Ihid. N— Viil4> of ri;:lif to (-ollort iiisirkvl tolN, A sale by the Corporation of i*'redericton of tlic ri;;lit to collect market tolls for a year, is not illegal uiuIt the City Charter, 22 Vic. cap. 8 ; and a bond given to the City by the purchasi'r for the amonnt of the purchase inonev may be enforced. Such sale, being a demise of the tolls, may be by parol, though tolls are incorporeal hereditaments (Ivitchie, J., ilitini'iifiniti'). Cifi/ of bicdciicfdu v. MnWuinn, r> All. 571. O— Ilj<'-I:i«>. -Aiillioiity -l*ul»lir liSiiidin^^o — Wir.irfiii- ^^rr— KoimI. The charter of F'redericton authorizes the Corporation to make bye-laws, to regulate the public landings in tlu' City, though the title to the land is held by the Justici'S of the Couiily. K.r innit Maviy, a All. 276. A vessel lying at a jirivate wharf in Frederictou. 'ait extending beyond it, and partly across a public laniliDi;. is subject to the orders of tlu' wliarlhiger of the City, luiii the master of the vessel is liable under the City bye-laws for disobeying smdi orders. Ihid. By the 48th section of the Charter of Fredericton, ''No person shall be capable of acting as wliarfinger until l.i shall have entered into a bond to the City, with two su,;.- cient sureties to be approved of b}* the City Conni'il, in such form as the Mayor shall approve," &c. A Wljarfin- ger was appointed in April, and gave a bond wliicli was approved by the Mayor : Hiid, in a prosecution for dis- FHEDEU1CT0N (CITY OF.) G87 olipvinjj tlio orders of tho Wliarfmj:; 'r, Tlifit having por- formotl tilt! (liitioa of tho otlicc for two inontliH without ohji'otion, tho approval of the hond by tho City Council nii'^ht Ix; impllfd. /'"'/. QiKrir, Wliotlier the giving or approval of a hond were ii(cHS!irv [trc'liininarit's to any legal act by the Wharl'iu- f^fi'. ///(''/. The otlii-c of Wharlingor being annual, the liability of liis sureties ceases at the end of the year for which he was iilipoiiittMl, ;ui:l is not revived by his re-ai)[>ointment. Plr l,.irtr Moirrii, '.) All. '27(1 IO-li«'Sl*«ill^ IuikI 4-iviiiu: \<>\«' Lo{iM4>— iiiclioii. The Act 10 \'ic. ca[). 7, empowering the Justices of Vi)rk to lease certain lands at auction, provided that no Imse biioiiul be made unless the upset price or rent should liiive been [)reviou8ly fixed by the Justices, and after such liiud should luive been sold, or once offered for sale at pub- lic auction, after ten days notice. The right of the Justices having been transferred to the Corporation of Fredericton, they agreed to lease to A. who died before executing the lease owing rent ; the land w'as afterwards advertised to lease bv auction, but before the sale the defendant agreed to take a lease on the saiLe terms that A. held it, and pay the arrears of rent, t\)r whieh he gave his promissory note. Ih'hl, That tht! Corporation had no authority to lease the laud except by auction, and that the defendant was not liable on the note. Citi/ of Fredericton - y. Lur(\s, 8, All 583. HmUe, iper Parker, J., That though the land had been once leased by -luction, on the expiration of that lease the Corporation was bound to offer it again at public auetinn before giving a new lease. IhhJ. I'owcr to i'oiitiart for hiiildiiiiJi: llsuk4>l lloii<«(>. Str Cor[joration 18. LiceiiM'-Ki^^lit to »:i-:iiit. The Act. 38, cap. 89, authorising the Mayor of Fred- ericton to grant to any person 5'ishing to engage in any 088 GIFT. trade, profession occupation or calling in the city, a license to engage therein is not idtni vires as being an interference with trade and commerce. A commercial traveller is en- gaged in an "Occupation," or "calling" and therefore comes within tlie Act. Kx parte Fdirbairns, 1 p. ^C- B. 4. See Lien. Shipping Law. Fi'<;(;li4»lfl. See Fixtures. FKIiOLOlS DCHIRKEK. P4»u'<'r ill C^oiii't to set a^idc. See Petiy v. llammond, 3 Kerr 684. Stntiito of ]VIaiiio— Horse raciiig^. Sec Statute (3. Bailey v. McDnfee. OAKI\l!!illRE PROCESS. See Attachment. C4Ex\EKAL ASSEIIBLI. Election (»t :vi4>aiil>c>r<^— Kotiirii of. See Election Law. Powevs— Privileges. See Arrest. OE.XEBAL AVEKACiE. See I . urance. OE.\EltAL ISSUE. See Pleading IL 24, Evidence XIIL WEB.lIAIVT^W^ LAKE. *SV(' Commissioners. <;ii a. See Donatio Mortis Caustt. Parol Kilt ol laii«l-.TIarrie«l u oiiiaii— Disroiiliiiiiaiirr. Where there was a parol gift of land to a uifuried GRIEVOUS BODILY HARM. 689 woman, and the property was actually occu[)ied by the hus- band of the doiiuD and worked by him — she resiij.ug with liim as liip wife— //^'W, That the wife could acquire no title l)v such a possession either against her liusband or the ,l,),ior— the title acquired by such would be the title of the husband. Qiucfc, Whether a party gives land to another by parol and puts him in possession, this might not be considered a iliscontinuance of the owner's possession, and the statute of limitations l)egiu to run at once and not at the end of the vcav. I>')f 'h'lii. Vbiomt v. Miirraij, 2 Pit;/. 375. ciii<>iit. Srr Pleading I. (\. 1— Coii»«id4>ratioiiiiot iiir4>iT<>rin<»ol K:iiin':nit<>c. Tlie plaintiff agreed to advance money to I >. T., to ciiiibk' him to get logs, on receiving security for tlu' delivery of tli-' logs: the defendant having agreed to become security, nu agreement for the delivery of the logs by D. 1'.. and pav- ment thereof by the plaintiff was signed by them, ami th- defendant then wrote upon the agreement and signed tlif following memorandum: "I guarantee the perforiviiice of this contrict on the part of D. T.:" andthj agreemjut Win then delivered to the plaintiff, llebl, Tliat no considi'ntion for the defendant's promise could be inferred from tli- terms of the guarantee; and that the same rule w.uiM apply, whether the guarantee was written on tlie same paper with the agreement, or on a separate paper ret'ernui^ to it. .4/^)/; V. BxIJorh, t .1//. 8-21. a An agreement in writing was made l)et\voen the plciiuuiff and one D,, whereby the plaintiff was to dilivcr 600,000 feet merchantable spruce logs, at certain times and places, for a certain specified price per thousand; th.-- kys to be surveyed by one W.A., by Emery's table; and at tlie foot of tiie agreement was the following niemoranduiii, Bigned by the defendant at thn same time that I\ signed it: " I guarantee the above i)aynients to -Tohu S. Taylor' (the plaintiff"). Held, That there was a sutliciont consider- ation expressed by reference to the agreement. Tr\. ILtrria, 2 Kcvv 843. Hdd also, That the whole of the ()00,000 iVet not hav- ing been delivered, and the survey of pa.rt of the loj.'S Wiiich ^^AMMikM ■pill I,., I'- GUARANTEE. 691 wert (lelivi'i't'd not having been made by W. A., the defeml- aut was not hable on his guarantee. A suret}' is entitleil to a strict performance of the contract which he guarantees, and anv deviation made without his assent discharges him. IhuL 3 A writing by defendant in the following words : "We guarantee that the wages due W. K. and G. N., from .1. H.. for making timber shall be satisfied when they l)ring the timbtr iq), according to their own arrangements," shews a siitlioieiit consideration of forl)earance by W. K. a :d G. N. to sue for their wages till the timber was brought u'). t ^er Act '23 Vie. cap. 31.^ XeviUe v. Josrph, Hi I. T. 1832. I The rights of W. K. and G.N. for wages. l)eing separate anil distinct — Ilchi, That each might sue seiiarately on the £;uarantee. IJ)i(L -A guarantee in the following words 'We hereby guarantee to you the pa\-ment of i'oO, by J. G., in tare years from this date," shews a sulficient (consideration (111 the faee of it. Johnaft)!! v. I'ni^cr, M'ich. T. 18:-5"2. II. Opeu.\tion of Statvtio of Frauds. 1 Where a bill of sale, by way of mortgage of cer- tain eatrle, Wad given by B. to A., which were to be deliv- ered on a future day in case B. failed in payment of a promissory note, and a written coHateral guarantee given by the defemlant to A., to secure such deliverv : llchl. That suih guarantee not stating the consideration on which the sanii was made, is invalid under the statut(! of frauds. MnU V. Svoit, 2 Ken- 038. uV Act23 V\t. cap. 31.) 'i C. was g. ''"g timber for defendant under a con- tract, and being in ■ vant of hay, sent a message to him to tliat eiiect. Defendant said to the messenger "You can tell C, or any one that will supply him with hay, that I wll accept C.'s order payable in the s[)ring." This mes- ^itge was communicated to the plaintiff", who afterwards supplied C. with hay. Held, in nn action for goods sold 692 GUARANTEE. and delivered, That the defendant's undertalving was,. ither collateral, to answer for C.'s debt, or an af,ac'euitiit to accept an order from C. for the value of the hay; and in either case the plaintiff could not recover. Scmldi; That it was a guarantee. Cohrell v. Uatjuld, Tiin. T. 1831. III. COXSTIIUCTION >IL'ST 1!K STRICTLY I'URKIED. ■Where the defendant undertook, in writing, that if the plaintiff would advance to one T. H. C. to the amount of i'lOOO, he would guarantee that T. H. C. [laid the jilaiu- tiff MoOO in the month of July next ; and the plaintitf ad- vanced i'281, and was ready to advance the remainder if T. H. C. would have received it. Held, That the defendant was not liable to any extent on his guarantee, as lie onh- agreed to be responsible if the advances amounted to t'luUO. The contract of guarantee must bf^ strictly constniL-d. Titanic V. Caniian, 2 Kerr, 381. 2 -WIk'ii an AI><<»oliilc Contract. The defendants entered into a written contract with T., by which he was to deliver them a quantity of lumber at a certain time. They afterwards agreed with t!ie phiintitF tu transfer to her the l)alance of lumber coming from T., for which they acknowledged to have received payment in fill! from the plaintiff, and guaranteed to see the lumber deliver- ed at the time specilied in the agreement with T. IhU, That this was an absolute contract by tlie defendants to deliver the lumber, and not a guarantee that T. slioiild deliver it, and that the plaintiff had nothing to do with T.'s contract except to ascertain the time of delivery. Lindsay v. Rose, 3 Kerr 576. 3-<':):itract-D«livory of Sliiii^rl(;<«— Hiialit) -Lialiilil). in March 1871, P. agreed to sell and deliver to idaiutitl all the sawed cedar shingles his mill manufactured diiriug that season, to be paid for on delivery, at certain rates, according to quality. The plaintiff at the same time made an advance of $500 to P. on the contract, and the defend- ant agreed as follows : (all being written on the same GUN POWDER. 69a Diiper.) "I guarantee to D. G. (plaintift,) that on or before the lOtli Mav next, P. will deliver to him sufficient sawed cedar sliingli'S at the rate specified in the within contract, to make jiood to liiin the above advance of $500 ; he failing to do so, I herel)y hold myself liable to said D. G. for the sum of !?500, or such portion of said advance as may be due, it being understood that I am to get credit for what- ever portion of shingles may be delivered by said P., sup- posing the amount does not come to $500." P. delivered a quantity of shingles, some under the contract, (but not to the amount of $500) and some of a different description und under a separate contract of which the defendant had DO knowledge. Held, in an action on the guarantee. That the defendant was only enti.tled to credit for such shingles as P. had delivered of the description and quality described iuhis contract with the plaintiff, and not for (ill the shingles dilivered; and that the plaintiff was not bound to give notice to the defendant that P. was not fulfilling his con- tract. G(vriiKwioii tor heir. .bff Possession 4. «irEST. See Boarding House Keepei . iilTk POWDEK. See Revenue Act. 0tJ4 HEIK. HABEAS ('ORI*L!S. PfotuMMliiiy^M i^^iilsii'ily in wril ol •jivitiii;; ushIc pro. e4>ediiiK«. .Sec Practice M. 4(). HALF KI.OOD. The hall' brothers and sisters of a person who dies intestate and without children, are not entittk'd to the whole real estate, under the Act ot Assembly "2(5 Geo. III. cap. xl ; but as " the next ol' kin,"" they are eutitied to the remainder of the estate after the portion of the heir at law is diduc* ^)oe v. 'rrou/ihtoii, 8 .1//. 414. If no heir v can be found, qiuerc, in whom will this portion of the estate vest '? Ih'ul. The person ontJ^^ed as V'ur by the common law, is not excluded under the Act, tlioudi he is not one of the next of kin to the intestate ; neither are the next of kin pre- vented liom taking the rciiuiiuder because they are not in ei^ual dv gree with the heir, but nearer in degree. Ibid. l^tte.f'AiiH' leaving ^iHtci'M ol' the wliolc blood siiul ii M!>.t<>r of hair blood. The iialf sister of a person who dies intestate and without issue, is entitled to an equal share of the real estate of the intestate with the sisters of the whole blood under the Act "21 Vic. cap. 26, (Consol. Stat. cap. 78. i J)oe deiii S]umno)i v. Fortune, 3 Pug. 259. HAUBOIK .^1A§'I EK. AppoiiiliiK'iit ol. See Appointment of Otiicer 1. Keeovt'i'y ol F*!*!*. bee, Assumpsit III. 6'd. HEIK. See Half Blood. Widow holding t'***' iivAv. See Possession 4. UiKltl ol eiitry !!!>ii«i|u>iid<'d niilii dtsilli of Iciisiiit >>) the Coiii'teMy* See Reed v. BarehlU, 2 .1//. 168. I IE III AT LAW. 0!)5 xioii. ,SV(' Ejectment l;i. !>(><' dcin. Mitinii/ v. Murray. Ill: IK AT LAW. I liir<'«»lal<' willioiK rliil$;l(>fi of Commissioners to file ri'tnrn— Layiny^ out uot invalid tiiereby. The laying out of a public highway by Commissioners, under the Act 5 Wm. IV, cap. 2, does not become invalid by the neglect of the Commissioners to file a return of the laying out with the Clerk of the Peace, as directed by the Act. Brown v. McKed, 1 Kerr 311. H-Ti'ospsisK— Justification— l¥idtii of road. The defendant in trespass pleaded that the lonia in quo •bad been laid out and recorded as a Public road, three rods wide. Held, No justification ; the Act recjuiring that no public highway should be laid out of less width than four rods. Paiec v. Dihhlec, 1 Kerr, 514. <)-('oiivi(tiou— Obstruction— Place. A conviction for obstructing a highway, is bad, unless it appears on the face of it that the place where the alleged obstruction took place was a highway. lieu v. Brittahi, 2 AV)T 614. lO-( riiaiuly of description— Layin;? out. The record of a road laid out by Commissioners under tlie Act 5 Wm. IV, cap. 2, should so describe the road tbat a person going on the land with the return, may be able to ascertani and trace the road ; and if the return does not point out the width of the road, or if it does not 44 ■*'• ■■<-r "»■ !»■ m M 698 HIGHWAYS. appear whether the line described is to be the centn- or the side of the road, it is defective. BoyniiKjton v. Iloliiwn 3, Kerr 74. IScmhle, That making one hne on the ground may he a sufficient laying out, if it appears how the width of tin road is to be formed in reference to such line. Il)id. II— Iiit«'nclc«l alteration— Objcctiii;;^ Pai'ti<'»ii«>Mni4'iil ol «liiiiiiiKCN— WIh'ii iiiado liisiaiin' of OWIKT. The assessment ol" damages to a person throui^'li whose improved land a public road is laid out under tlic Act 18 Vic. cap. 4, need not be made concurrently with the layiii" out, but may be subsequent to it. If made before the road is laid out, it is a nullity. It should be made at the in- stance of the owner of the land, and not of a person a[)[)ly. ing for the road. Ka; parte Hebcrt, 8 All. 108. 21— Wnrrniit lo miiihiiioii .iiiry— Direclioii—Dolivory. The warrant to summon a jury should either he dirccttd to a particular constable, or, if generally, " to any constablt, ' should be delivered by the .Justice who issues it to soiiih particular constable to execute, and not left with the party applying for the jury to s(>lect a constable. Unil. 23— AsM4'«Niii<>iil on vidv. The jury may assess the damages on view of the land, without examining witnesses, if none are produced. IIM. 33— l^evy <»! Diiiiin|;<>!^. The Sesf-ions cannot order the damages assessed hy the jury to be loviuil upon the inhabitants of part of a Parish unless the Commissioners recommend it. If the Com- missioners recommend the assessment to be levied on a certain district, under sec. 9 of the Act, they must name the persons to be assessed, and must uiclude all the resi- dent rateable inhabitants within the district. //"'/. 34— Rotiii'ii to l§>OM5— A!!>!s<>*«iit s<>l a!!«i!s<~V:ilii<> of Land— Keopiiis: ii|» •«»*<*"*• In assessing damages under the Highway A.ct, to the owner of improved land in consequence of a public road HIGHWAYS. 701 being laid out through it, the jury are not confined to the value of the land, but may take into consideration the ex- ijenses of keeping up fences. Iir;i. v. Jit.sticeH of Kent, a Ml. 118. •if-ExccNNive DnnitiKOK— Rerii*>»l to •■•ct n»iiN*>iioiis— Levy— DuiiiugvM. Where the jury recommended that the damages should In levied upon a certain part of the Parish in which the road was, and the Commissioners sent the assessment to tlie Sessions, requesting that it might be " dealt with ac- cording to law," but not stating their opinion that the road ,vas only for the convenience of a portion of the Parish : lldd, That the Sessions were warranted in ordering the amount to be levied on the whole Parish. Ibid. 'iO-KecoHiinciKlatioiis of Coiniiii!«!i>ioii<;i'!i> not binding on .liisticcjii. The Justices are not bound by a recommendation of the Commissioners that the damages should be assessed upon a certain district. If they disagree with the Com- missioners, qiucrc, whether they have power to assess the whole Parish. An order of the Justices to assess the amount of damages awarded by a jury, is a sufficient order for the payment. Ibid. :tO-De(licatioii of Crown. To establish a highway by dedication of the Crown, the particular land must be expressly reserved in a grant from the Crown, or be defined in the plan of a grant containing 11 reservation of roads. Cole v. Maxwell, 3 .4^/. 183. In the absence of any evidence of a plan attached to an ancieut grant of land " with allowance for roads,'' by which a particular part of the land is dedicated as a highway, and 702 HIGHWAYS. without any use of such road by the public, a dedication by ti:e Crown will not be presumed, though several of the old proprietors of lots in the grant spoke of a pla)tn(:d roiidoxtn the land, and one of them caused the lines of the 8ui)|ioHed road CO be marked on his land about 40 years before the trial. Iliid. The declaration of the owner of the land that there was a road through it, without any proof of use or of tlielocahty of the road, does not amount to a dedication of it to the public. Ibid. In trespass to land and ploughing up the soil, defend- ant pleaded that there was a public highway over the land, by reason whereof he entered. Held, That if it was a high- way, ploughing up the soil was not justified. Ihid. 31— K<>«'oi'(iiii^ as lfii«l out— C'oiiiiiii»Mioii<>rS duty. When Coujuii-sioners of Highways have laid out a road It is their duty to record it as laid out. They have no ri},'ht to abandon a part of it, and make a return of the other part. Er parte Weadc, 3 All. 807. 3ti— >>liiiltiii^: ii|» rosKi ]V<'<-4>«<)Mai'> return bof'oro. To justify the shutting up a highway under the 1 Et v. Stat. cap. GO, the return of the Commissioners must shtwi either expressly or by necessary implication, that the road is not required for the convenience of the inhabitants of the parish. The words "not required for the inhabitants," and "not required for the convenience of the inhaliitants" are not identical in meaning. Oidton v. Carier, 4 .1//. Ki'.*. Kiv4>r— ObKtrii<*tiii^ uk«> of sin lli^ll\vay. (S'c Action on the Case IV. 1. Ercrtiou ofdain iu public am—DeMru«'tioii ot«ianH> by p4>r»«ouM not iniur(>«l- lujunrliou to r<>*>tiaiii. .Set' Water Course. Layin^'out or HiKli\vn>!S KiKlitiii of Puhllt-Evidoim' —.noil user. It is not necessary for the Commissioners of Highways in laying out a street under oth Wm. lY. cap. '2, to put up HOMESTEAD. 703 -Evidoiire fences or grade the road. It is enough if a man can go upon the ground with their return and plan and discover where the street is, its course, length and width. The street having been laid out and recorded the public acquires a right in the whole extent of it, whether it is opened and used or not, and they cannot by non user release their rights over it. The return of the Commission ?r8 of Highways properly made and filed, is evidence of the laying out of the street* Retiina v. McGowan, 1 P. d- ^.191. IIIRINCi. A person who hires a horse to perform a journey, is not liable for the value of the horse if he dies on the road, without the fault of the hirer ; and qiuere, whether in such case, where the hiring was not by the day, the owner of the horse could recover on the quantiun meruit for the time the defendant used the horse. Dickie v. C'e Practise IV. 29. HOilIICIDE. See Criminal Law. IIOIVEESTEAD. Qiuen\ Whether the Homestead Act, is valid as to traders, and if so whether there is the requisite machinery for carrying it into effect when the debtor assigns under the Insolvent Act. Qiuerc, Whether a homestead can be set off when the land is under mortgage. /// re. Ifarrison, 2, Pug. 11. See Insolvent Act. Same case. *i«k' of wliolf laii«I<>> iiiidoi* execution. Application must be made by the debtor or his wife to have homestead set off, otherwise Sheriff justified in spelling whole lands. Pourrier v. Harding, 2 Pug. 120. lu«olveiiti9. Qu(cre, Whether provisions of Homestead Act apply to the real estate of insolvents under the Insolvent Act. Doe o|>osit. See Action at Law I. 3. A deposit of money with a stakeholder in this Province to abide the result of a horse race in Nova Scotica, is not an illegal transaction under the Revised Statutes, and mav be recovered back, if the race is not run. See Kenncij v. Stvhhs, 4 All. 120. Betting on— ^tntnle of JVIainc See Statutes 6. HOUSE OF ASSEITIBLV. See General ^Assembly — Arrest (privilege from). mijsba:nd ajvd wife. I. Actions by /vnd against. n. Necessabies. HI. Separate Property of Wife. (Liability of, to Execution). lY. Miscellaneous. L Actions by and against. 1 — Release of iirtiou by hasbnnd. Ihe husband may release an action brought iu tlie name of himself and his wife, to recover a debt due to the wife before marriage, though she is living separate from him, and the action is brought for her benefit, and no consideration was paid for release, McLcllau v. Couiik, 4 All. 237. 2— Abatement of Action— Death of IlHMbaii«l. An action brought by husband and wife to recover money had and received to the use of the wife, does not abate by the death of the husband. HarriiKjton v. Mc- Manamin, 4 All. 699. HUSBAND AND WIFE. 705 3-Action by wife alone— Husband insane. A married woman, whose husband is insane and con- tiiied in a Lunatic Asylum, and who is compelled to support herself by keeping a boarding house, may sue and recover in her own name, the amount due from a boarder lodging in the house after her husband's insanity, under tlie Kev. Stat. cap. 114, sec. 3. The amount due from a boarder under such circum- stances, vests in the wife as her separate property, and will not pass to the husband's representatives on his death. Ahell V. Light, 1 Han. 97. I -Legfaey— Husband maintaining^ action as I'eprc- sentative of wife. If a legacy is bequeathed to a married woman, who dies before any act done by her husband to reduce it into possession, he can only maintain an action for it as the representative of his wife, though he may be beneficially entitled to it. Collins v. Cahir, 2 All. 103. 5-Rpiit— Tenant «Iying^, leaving: a widow— Continu- ance of possession by second husband— IVon- .ioiiidcr of wife. A tenant died in possession of premises, leaving a widow. Held, That the defendant, who had married the widow and continued in the occupation of the premises, was liable for rent dHring his occupancy, and that the wife need not be joined in the action as a co-defendant. Matlhcw V. Chittick, 2 Kerr 696. (i-Aftioii lor Dower. A widow cannot maintain an action at law for dower in land, in which her husband had only an equit}' of redemption during the coverture, oven though the hus- band's right has been sold since his death, and purchased I'j' the defendant, expressly subject to the right of dower ; or, though the mortgage may have been paid, if it is not discharged on the records. Doe v. Estabrooks, 4 All. 455. 11. Necessauiks. 'Liability of husband lor. The defendant turned away his wife without cause, and 706 HUSBAND AND WIFE. afterwards offered to take her back and provide for hor but she refused to return. The jury were directed that this offer did not relieve the defendant from Hability to a third person, who had afterwards supplied the wife with necessaries. Held, per Wilmot, J., and Kitchie J., (Parker, J., dinscntiente), A misdirection ; and that the question for the jury should have been whether the defendant made a bona fide request to his wife to return, and if so, wliethei" she had refused on a well-founded belief that his ill-treat- ment to her would be renewed. Held also, That the liability of the husband depended upon the implied authority of the wife, as his agent, to bind hira ; and that when the necessity for the authority ceased, her riglit to bind him ceased also. Held, per N. Parker, M.H., That a husband who wrongfully turns away his wife, continues liable at law for her support, except in case of her mis- conduct ; and that the question whether she was bound to return to his home on his offer to take her back, could only h(' determined in the Spiritual Court, in a suit for the restitutution of conjugal rights. Bennett v. Jones, 4 All. 397. S— nilocc^^iitrics— Wile living' npai't. A husband is liable for furniture sold to his wife while living apart from him for sufficient cause, but not for money lent. Gray v. Vesey, 1 P. cO B. 276. III. Separate Property of Wife. ■9 Land was conveyed to a married woman, for life, for her separate use ; it was managed under her directionsi and the labor paid for by the produce of the land, the hus- band not interfering except as her agent. Held, 1st. That under the Rev. Stat. cap. 114, the crop, when severed, did not become the property of the husband, and was not liable to seizure under an execution against him. 2nd. That an action for seizing the crop, under execution against the husband, was rightly brought in the name of husband ano wife. Doiv and Wife v. Dibblee, 1 Han. 55. HUSBAND AND WIFE. 707 10- When a husband and wife reside on land of ffhicli the wife has the fee, the husl)and is tenant by the courtesy, and the crops raised by his labour and the labour of his servants and children, are his and liable to seizure tor bis debts, and the Sheriff may enter to make a levy. In the absence of title, the possession is the possession of the husbatifl. Pourrier and /rife v. Raymond, 1 Han. 512. IV. Miscellaneous. Inhiiit ttiibscqiit'iitly iiisii-ricd— Right ot entry of lius- band. See Limitation of Actions IV. 16. llr^tiio profits— J iKlg'iiieiit si^:aiii<)— Attavlinient against iiiarrie«l woman. See Attachment 27. Derd—JoiiKler by wife. See Deed I. 27. Piii'titioii— liifaney— Long acqnie«cence. See Partition. Docieo barring rigiit ot si!«§ing to iini- ol a JiKlge under provisions ol flonsoi. Stat. eap. 3S, sees. !8S-36, not ultra vires. See British N. America Act 11. Ex parte Ellis. lmpii»ioiiiiient for deiault of payment of penalty ul tia vires. See By-Law 8, Ex parte Trash. Insolvent Act— Party not a trader. See B.N. A., Act 0. iiflPOlJiVDLXO CATTLE. Under the 1 liev. Stat. cap. 61, sec. 20, (Consol Stat. cap. 110), authorizing all cattle impounded to be sold !it public auction after fourteen days' public notice — unless all charges and expenses incurred on account thereof be paid— a pound-keeper is not authorized to sell all the cattle he may have in pound, but only sufficient to meet the charges and expenses already incurred. Dickie v. Law- m, 2 Pug. 46. 710 INFANT. Pow4>i' to niak<> r4'Kiilali»ii>*~A|>|»oiiitiiioiit ol oltivn^ and iiiipoxiiiiu: tvvn. See Statute 2, same case. ■NCiriTlBKAlVCJE. Rc^fistered 1?I<>nioi-ial ofJudKiiK'nt ag^stiiiMi vendor i<« <;viiitilli>d to land Tree from iunini- braiico. See Vendor and Purchaser. K<'^i!>itiy of IVIortKagc not a notice ol anJnrunibi'anrc to a subsequent purchaser. See Doe v. Power, 1 All. 271. INDKlfllVITV. IVIaster an«l owner of ship— Risks— Implied roiitraet to indemnify— IVeg:li^ence. See Principal and Agent 22. IMDICTIVIEKT. See Criminal Law. ll\DOR!!»EI?lEn[T. See Bills and Notes. INDirCTIOIV. See Trespass, I. 8. IWFARIT. t— Promissory Note. The promissory note of an infant is voidable only, and lie may confirm it after he comes of age. Fisher v. Jeivdt Her. 35. tS— Deed— Voidable. The deed of an infant is voidable only ; and the infanc} cannot be given in evidence to invalidate the deed, in a suit between third partieb. Donohoc v. Hallett, Trin. T. 1828. :$— Avoidance by heirs. The conveyance of an infant is voidable only, and ina\ be confirmed after he comes of age ; but if be dies soon after coming of age, having done no act to confirm the deed, his heirs may avoid it. Doe dem. Foster v. /^cf- Mich. T. 1871. INFANT. 711 i-Covcnaiit not to iriKlc. A covenant by an infant in an indenture of apprentice- ship, that he will not carry on a trade within certain limits, is not binding on him. Itcri. v. ILtrris, 1 All. 100. .'t'Convoyanoc to iiit'aiit — Frniidiilent intent— ^iil>«><>- qiioiit eoiivoyaiicT by g:rnntor and intnnt. Land was conveyed to an infant by direction of liis liither for the purpose of defrauding the father's creditors, the father having afterwards been arrested by the credi- tors, he and his son joined in a mortgage of the land to secure the debt. HrJd, That the mortgage was good ; that the inlant being only a trustee for his father, was bound to convey the land as he directed ; and that neither of tht m could set up the infancy to defeat the mortgage. Doc dcm. Uifjiit V. Shiipsoii, 3 K<'rr 194. O-^iriiT rai'iafi) on .iiid|;^iiient— Infant not f>ioi-v4>d. Judgment by default was signed against A. and B., on a joint and several promissory note. B. was not served with process, and on a scire facias against him, under the Act 26 Geo. 3, cap. 24, to obtain execution on judgment, proceediogs were stayed — it appearing that at the date of the note he was an infant, and had not authorized A. to bign the note for him, and had no knowledge before the iiidgment of its having been done. Neither the fact of the uote having been given for a balance due the plaintiff on a himber transaction, in which A. and B. were] jointly^ con- cirned ; nor of B's having offered after coming of age to compromise and pay a portion of the debt, will deprive him ol his right to relief. Mitchell v. Astle, 2 Kerr 8G. UiKlil of entry at-fruin^ to female inlant— ]?lari'ia{g:e —Action uot l»rong:lit ivitliin time. Sec Limitation of Actions IV. 16. inlaiuy no bur to ent'oreiniji: contract. Sec Contract 14. ••liiuil appit>iiti«e- Conviction. See Apprentice. 712 INFOBMATION. ■t. INFERIOR COURTS. TnxiiiK Co»iti« by Olcrk <>r 8ii|»i'(>iiie C'Ourt* See Costs 75. ]nnii. See Mandamus 2. ]Vlaii«lniiiiiM r<>riit«(ul to coinpfl Ooiirt ot Coiniiion Plcn« to award co»il»i. See Mandamus 7. ITIaii(1ainii$i rernsed to coiii|><>l 3Ia;;i<>»trntc to proceed in a criminal can<>)e at •*iiit of private prosecii. tor. See Mandamus. Proiiiltition to rcstniin action brought agaiiiMt Clerk ot the Circuits for recovery ot tine imposed. See Prohibition. Removal ot €au<>>e— IsMie ol' %Vrit ot Error. See Error (Writ of.) The Inferior Courts of Common Pleas have no power to grant new trials, and a mandamus will issue to compel them to enter judgment for a party in whose favor a ver- dict has been given in that Court. Bex v. Justices ot Northumherlaml, Hil. T. 182G. The Inferior Courts of Common Pleas are Courts of Pie- cord in regard to summary actions, as well as other ac- tions. Wheeler v. Grant M'leh. T. 1832. Ju«lgnient of not conclu»>ive. See Judgment 1-8, WrujUt \v. Parlee. V. 9 Jaekson v/XDonnell. Removal of cause. See Attorney-General. ■ MFOR3I.4TIO]>l.. See Justice of the Peace— Criminal Law— Crown Grant I. 18 — Quo warranto. 1 An information of debt, tiled by the Attorney- General, is sufficient, though it is stated to be on the rela- HP INSOLVENT ACT 18()!> AND 1875. lis tion of the Deputy Treasurer : if such allegation is un- necessary, it might be rejected as surplusage. Attonirif- limnd V. hittcrson, East. T. 182(). ,,. An inforiuation, allegin<^ the ott'cnce to be the importing goods^ into the Province from the United States, contrary to tlie Acts of Assembl}', does not state any of- ftnce against the Act G Wm. IV, cap. 4, which declares a forfeiture of all gooda landed before they are reported at tlie Treasurer's office, and a permit obtained. The"}m- mrtiiig" goods and " landini/" them, are distinct acts. At- tmey-Gciicrnl v. 250 Barroh of Fish, Her, 419. INITIALS. Sir Name. ir¥Jir«i<;Tio\. Set: Practice in Equity — Equity. ■IVNKEEPeR. Proliibilion a<« to Mcllini? liquor on credit. The prohibition in the Act 17 Vic. cap. 15, sec. 18, against selling liquor on credit, onlv applies to innkeepers and tavern kespers. McAidey v. Lawlor, 4 All. 600. See Boarding House Keeper. li\NUENDO. See Defamation — Pleading. HVqilEST OF OFFICE. S'T Crown Grant I. 18, — License — Intrusion. lAKiUIKV il¥HIT OF.) See Practice X. INKOL.L.ITIENT. Mtiitiitc of liiroiiinents is in Torre in tlii<>« Provinee. See British Statutes. INSOLVENT ACT 1§69 AND 1875. l-(oiiiit} Court Judg:e— Hearintr petition. The County Court Judge of the County in which the emand on the debtor to assign is made, is the proper , Jitv to hear the petition, although the debtor may reside nd do business in another County. See Ex parte Thomas, - Han. 163. 45 714 INSOLVENT ACT OF 18G9 AND 1875. Removal of pro4'4>(>«liii|;K lia«l lM>toi-(> JiiiIkc of Coiniiv Court not nllo\vo«l. See Certiorari I. 5. *2- Creditor- l>«>bt not matured. A creditor whose debt has not matured may take pin- ceedings to subject the estate of his debtor to corapulsorv liquidation under the Act, section 20. In ro Perks, 2 Htm, 121. 3— Property— Third party— Claim -AttaiJniient. If property claimed by a third person has been attach- ed as the property of an insolvent, under a warrant issued under the 20th section of " The Insolvent Act of 18G9, ' such person has no right to apply, under section 50, to sd aside the attachment, or to have the property restored to him by the assignee : he must resort to his common law remedy. ClemevtHov v. Hammond, East. T. 1871. A tliird party cannot object to the regularity of the pro- ceedings taken against a debtor under the Insolvent Act of 1869. Ihid. 4— Gxcrution— Setting aMide— Ki|;lit of liimoivoiit. Plaintiflf,.a judgment creditor of defendant, proved his claim before the assignee under the Insolvent Act ; after- wards, and before defendant obtained his discharge, the plaintiff issued execution on his judgment, and levied upon property which the insolvent had not included in his sched- ule of assets. Ih'.hl, That whether the property belonged to the defendant at the time of his insolvency, or was the property of a third person, he had no right to apply tn set aside the execution, as in either case, he could Imv. right to it. Jones v. DcsBrisay, Trin. T. 1871. 5 Where proceedings for compulsory liqu. lou are taken under " The Insolvent Act of 1869," and an at- tachment is issued, money which has been levied by the Sheriff under an execution against the debtor, but which has not been paid over to the Judgment creditor, passes to the assignee, under the 59th section of the Act. Bidkn V. Harding, Mich. T. 1871. INSOLVENT ACT OF 1809 AND 1875. 715 « roiii|nil«*ory llqiilditlloii IVo petition |»i'OM<>iited— prorciMliiiKM. M., a creditor of defendant, made a demand upon him to iissii^n his estate, for the benefit of his creditors, under tlie 14tli section of " The Insolvent Act of 1869." No nttition against this demand was presented within five (lays, as required by the Act, but after that time the defend- ant settled his debt with M., who took no further pro- otedings. Held, That the estate of the defendant was nevertheless subject to compulsory liquidation, and that the demand of M., enured to the benefit of the other credit- ors of the defendant. I h'rer V. Morris, 1 Piui. 270. 7-§(>(tioiiK 9*2 and 03— ro- visions of the latter part of the 86th section of the said Act. Wetmore, J. was of opinion that the case was not within the provisions of the 86th section. Held, (by Allen, C. -T., and Weldon, J., Wetmore, h, i{i>iscnticiiti;^ That neither the previous promise of B o give security, nor the pressure brought to bear on him l)y T.. (W.',< agent) made the transfer good. Hdil, The transfer \v!i.« not protested by the 81st section of the Merchant Siiiii- jiing Act of 1854. • An Act of the Parliament of Canada must be nonstriu-d according to its terms, and not by the provision of Engbsh Acts, though in many respects similar. The words in the 80tli section of the Insolvent Act of 1869, " In contemplation of insolvency. "" are to be con- strued by the quo uniino of the grantor. The words " unjust i)reference "' in the same sectidii are equivalent to the wcu'ds " fraudulent prefer. nee ni INSOLVENT ACT OF 1869 AND 1875. 717 the English Bcankrupt Act of 1869. By Weldon J., The word " unjust " should be construed in its natural sense, ami an " unjust preference " is one that prevents an equal distribution of the insolvent's property among all his creditors. By We* more, J., The 89th section of the hisolvent Act 1869, is ultra vires so far as it operates upon property lawfully acquired by persons not insolvent. Where certain letters were referred to in defendant's answer, the Judge in Equity required the defendant to produce them for the plaintiff's inspection, and certain of them were put ill evidence on the hearing, and the Judge made use of them in arriving at his judgment. By Weldon, J., That the ruling of the Judge in Equity was correct. By Wet- more, J., That at least it was no ground for appeal. If the order of the Judge in Equity was improperly made, it should have been appealed from at the time. McLcod, .Imjnci;, d'c. v. Wright, 1 P. tt B. 68. Wright, Appellant, and McLeod, Uespondent. 10 — Frsiiiiliil4>iit |»i-4'l<'i'ciice — iHoi't^a^se ^iv<'ii live iiioiitli«> hcl'oiv isMiK^ oriittachiiieiit. Where a mortgage to secure an antecedent debt was given by a trader more than live months before the issue • 'gainst him of a writ of attachment, under the Insolvent Act of 1869, the Court lliid, That as the burthen of prov- ing that the mortgage was given in contemplation of insolv- ency was upon the assignee of the estate, in which he had wholly failed, and as fraud was not to be presumed unless the conveyance was made within thirty days of the issuing of the attachment, the mortgage was therefore not void under sec. 89 of the Act, as being a fraudulent preference. Kip/;/-; Jones, lie Raymond, 2 P. d' B. 136. Il-Coiit«>iii|»isitioii ol insolvency— Bill ol •■lale of all KoodM to tiiM'iii'o |»a<>tt 4l(>l»t -Kill of Mtilc r<*i;iri>ct -Kelation to delivery. C, a trader, being insolvent, gave to H. a bill of sale transferring all Ins stock in trade, goods and chattels of tvery description contained in his two stores, and all thai "t might subsequently place thereni, as a security for a 718 INSOLVENT ACT OF 1869 AND mi past debt. C. shortly afterwards made an assiimient under the Insolvent Act of 1SG9. Helu, That the bill of sale was void, as it must be taken to have been made in contemplation ol insolvency. Qmcre, Whether where a bill of sale is registered before an assignment in insolvency by the grantor, it relatos liaek to its delivery. Piujslerj, Assifjnee, ((■<•., v. Tlefiav, 2 /'. d- B.l. 12— Fraiidiilciil prererciice— CoiiteiHplatiuii ol iiiioolv- ciicy— Oflii'ial H<<>Kig^ii<>c. A transfer of goods by a party afterwards becoming insolvent to a creditor in payment of his claim, is a fraud ulent preference and void, if the necessary result of the transfer is to cause the debtor to close up his business and prevent him from paying his other creditors : and the words of the Insolvent Act, " in contemplation of insol- vency," do not necessarily mean contemplation of assign- ment under the Act. When an official assignee becomes the assignee of the creditors, in case there should be any defect in election, he may rely on his position of assign -re by operation of law. Manh Assinec, dr., v. Sicccny, 2 Piislatioii ot creditoi-N c-laiiii. In resisting a claim filed against an insolvents estate on checks drawn by the insolvent and unpaid for want of funds, on the ground of want of presentment and notice, it is necessary to allege and shew that, by reason of want of notice, the insolvent or his estate had sustained loss or injury. Ju; Oidtoii Brothers, 2 Pug. 833. 14— Ki'plpviii aj;aiii»«t a!«isi|{ii«M'— K«'iiK'«l.v-Tin- Evideiit't' of party liciiiK. The holder of a mortgage on personal [iroperty belong- ing to an insolvent, having replevied it from the assigne., it was Th'hl That tlie remedy by action was taken away by sec. 50 of the Insolvent Act, and that he should have applied to the Judge for an order under tliat section. INSOLVENT ACT OF 1869 AND 1875. 719 In case of compulsory liquidation, the judgment of the County Court Judge adjudicating the ] arty insolvent, is prima fade evidence of his being a trader. McQuirk v. McLeod, 2 Fug. 323. t>)— Arrest after assigiinieiit— Di!>>cliai'g:c. Where an insolvent has been arrested after assignment by a creditor who has filed h - claim under the Act and taken part in the proceedings, tl e Court will not set aside the writ and discharge the defendant out of custody, but will leave hira to his relief under the 145th sec. of the Act, by application to County Court Judge. Her/an v. Jones, ■Jones V. Jones, Dnmio v. Jones, 2 Pug, 290. 16-Order fbi* support— Confined Debtors^ Act. A debtor who assigns under the Insolvent Act of 1860, cannot, if in custody, obtain an order for support unuev Hk' Insolvent Confined Debtors' Act, and can receive his dis- charge only in the manner pointed out by the former Act. Ex Parte BrjCHK, 2 Piiy. 200. 17— .Memorial— Kc'g^iMry prior to asMig[nnicnt— Efloct of. Ajudgment, a memorial of which has been registered, is a charge upon the real estate of the debtor, who after- wards becomes insolvent and makes an assignment under the Insolvent Act, and can be enforced against the real estate which belonged to the debtor, and was transferred to the assignee by the assignment under the Act. -• ^nvcher, v. ■h%\h\ Assignee, dc, 3 Pug. 65. IS- Wagi's— Privileged Creditor. C. assigned under the Insolvent Act of 1869 on the 14th Nov. 1872, being indebted at the time to N. in the sum of •'?!)45. Part of this sum was for wages due the claimant as a shipwright in the employ of the Insolvent at daily wages. The whole was settled with the Insolvent on the 28th of October, 1872, the claimant taking four notes payable in 1, 3, 6 and 9 months respectively. The last work done by the claimant was on the 8tli of August, 1872, after which time he continued boarding the Insolvent's men up to the -Uh October. The claimant swore that the sole reason he 720 INSOLVENT ACT OF 1869 AND 18 75. left his employ was because he would not pay him. Jkhl That, in the position the claimant placed himself he could not be considered in the employ of the Insolvent, and was not entitled to be preferred as a privileged creditor under the 67th sec. of the Act. Ex parte Napier, 2 Piui. 300. ■9— ScrvstiitS WaKCis— Pi'ivilctf^c. A servant who left his master's employ three months before the assignment of the latter under the Insolvent Act of 1869, is not entitled to be privileged under sec. 67 of the Act, even though he was obliged to leave the emplov because he could not get his pay. Ex parte Napier, 3 Pan. 134. *JO— Sct-oH— PiiiM-liase of claim lor |»iii-|»o'>«(' ul— Kiiow- lodj^e oriiiM»lv<'ii<*y — Evidence of. Where a claim against an Insolvent is purchased by a debtor for the purpose of set-oti", it is his knowledge of the Insolvents being unable to meet his engagementb, and his intention in purchasing — not that of the seller— which prevents the set-off from boing available. The 91st section of the Insolvent Act of 1869, relating to set-olf, applies to the transfer of any debt sought to be set-oflf, whether it was actually payable or not at the time of the assignment. In an action brought by the assignee of the Insolvent, where the defendant souclit to set-off a note purchased bv them prior to the assignment, a demand of assignment made on tha Insolvent by tlie holder of the note prior to the transfer, was held properly admitted to shew the insol- vency of the debtor at the time. McLeod Ansigiiecy. iJom- rille et at. 2 Pag. 422. ♦21 -Altidavit— Holder of note not prosecuted— Allsuii- inent- Fads necesMary to toe stated— Filiusordrr. Troceedings in insolvency by attachment may he taken by the holder of a jtromissory note payable at a particular place, tliou;^h the note has not beuu presented; but even if the want of allegation of presentment in the atlidavitK should be any ground for f etting aside attiichmeut, the statement of a promise to pay would make the ol)jectionot no avail. INSOLVENT ACT OF 1869 AND 1875. 721 The affidavit must state facts shewing tliat the defend- ants' estate has become subject to compulsory litjuidation ; mere lieiU'say is not sufficient. It is not necessary that the judge's order for ji.ttachment should be filed before the writ of attachment issues. It is not necessary tc state defendant's residence and description in the body of the affidavit — it is tnough if it inpear in the title of the cause in affidavit for attachment. Cohrell V. RohrrtHoti, 1 P. <{• 7^. 481. All application to set aside an attaL-hniLMit for defect in the affidavit on which it is granted must be by petition under the 18 sec. of the Insolvent Act of 1875 as amended by the ii9 vie. C, 30 sec. M. Ibid. •23— Service l>y piibiifatioii — .4|»|>(>sii'aii«'4*. Where a writ of attachment cannot be served person- ally, and an order is made for service by [)ublication in Giudtc for one week, it seems the defendant has that week during which he may appear. Ibid. 'i4 Falsi' piTteiieo— Soc. 0!t— .4|»|>li4-atioii of. An allegation that defendants having funds in their bands belonj.-ing to S. for goods sold on Ins 'iccounl^had accepted a bill of exchange drawn by S. for the amount in favor of plaintiffs at sight, that vhen plaintiffs presented the bill to defendants on the 9th September, they falsely pretended in order to obtain a further term of credit for ;>ayinent of the bill that the said goods against proceeds of which said bill had been drawn, had not yet been sold, and that plaintiffs on the strength of this representation ex- tended the payment till October Ist: that defendants at that time knew they were unable to meet their engagements, bat concealed from plaintiffs their inaljility to do so with intent to detVaud plaintiff's, was held not to shew a fraud within the term of section 02 of Insolvent Act of 1860, and that a plea of discharge of defendants undi'r the Act was iin answer to an action brought on said bill of exchange. ■'wi!H\.][aitj,)rd, 2 ;■*/(//. 467. m\ 722 INSOLVENT ACT OF 1869 AND 1875. 33— County Court .iui!>r been in duplicate, and that, not having been executed in duplicate nor registered, or livery of seisin given the title remained hi the debtor. Per Weldon, J., Whether the official assignee could or could not have taken possession under such a deed, he not doing so, and the debtor remaining in possession, the latter had such an insurable INSOLVENT ACT OF T860 AND 1875. 723 interest as would enable him to recover upon a policy of fire insurance. Pnrhev. Affi'icidturdl Insurance Com pan)/, 3 I'wj. 476. '28-Loasoliohl proixM-tj— l'ii«\pii"c«l tci'iii— Vo'^tiiiij;' ol — Boiil— Lial»ilit.v of A«iig:iieo— Croditor. Ill February, 1873, plaintiff leaaed a wharf and ware- bouse to S., for tlie term of five years, from the Ist Janimry, 1873, at annual rent of $4,800, payal^le quarterly on the tirst days of April, July, October, and January. The lease contained a covenant, that the lessee would not assign, underlet, or part with the demised premises by his own act or deed, or by act or operation of law, without the lessor's written consent ; and there was a provisio for re- entry in case of non-payment of rent, or failure to keep any of the covenants in the lease. The lessee entered under lease and occupied till October 12th, 187o, when he became insolvent, and assigned under the Insolvent Act of 1875, to the defendant as official assignee. At the time of assignment the sum of $1,800 was due plaintiff fiom S. for rtnt due on the 1st October preceding. The property was of less value than the rent reserved. Defendant, as assignee, collected wharfage for the use of the demised premises from 13th October, 1875, to January 2i)th, 1876, toa.^ount of $483.00, which was all the property yielded during that time. This was the onl3- act defendant did iu reference to the property, except giving notice to plaint; tf on December 24th, 1875, by directions of the Inspectorb, that they (the inspectors) intended to retain the property only up to the end of the then current year 1875, and that onI)eceml)er 31st, the lease would be surrendered, and tlw posstssiou of the property given up to him. Plaintiff refused to accept the surrender at the time notitied, but did so on 1st April, 1876. On January 2Uth, 1870, defend- ant sold the estate of the Insolvent eit bloc to H., and eiecuted to him a deed on that day, which conveyed to H. "all the estate and effects, both real and personal, of fcvery nature and kind whatsoever of the Insolvent, which came to the possession of the said M. (defendant) as 724 IN SOLVE iNT ACT, OF 1869 AX J) 1875. assignee," etc. Held, 1st. That the unexpired term in t}.ie base vested in the defendant, l»y the assignment under the Insolvent Act. "ind. That plaintiff was only entitkd to rank as a creditor on the estate of the Insolvent, for the amount of rent due at the time of the assignment on the 12th October. 3rd. Per Allen, C. J., and Wetmore, J., That plaintiff" was entitled to recover from defendant the quarter's rent due Ist January, 1876 ; but not for the period between that and the 27th January, when he assigned to H., because the current quarter's rent cannot be apportioned. But, per Weldon and Fisher, .J. J,, That the defendant did not incur any personal lial)ility to l)ay the rent. 4th. Per Allen, C. J., and Fishtr and Wetmore, J. J., That H. was liable to plaintiff for the quarter's rent due on the Ist April, 1876, at which time H. was Assignee of the Tenu. But, per Weldon, J., That H. was not personally liable to pay rent, unless he did some act to recognize the tenancy, or take possession of the property contained in the lease. RohcrtsDH v. MrLcod, Aaaignce, X-c. Robertson v. Haley, 1 P. (('• 7). 15. *29— Trial of otI'tMK'eM— !S)|>c«;isil or coiuiiioii.iiiry. An indictment for off'ence under Act of 18(];), ifter the Act of 1875 came in force, a special jury is not reijuisite, the Act of 1H75 supersedes Act of 1869, and sununon'iig of Jury is matter of procedure under Act of 1S75, which does not require a special jury to be summoned, lleg'm \. McLean 1 P.^(:B. 377. 30— Book «I«bts— Xorossai-y to iiisiiert in MaK'Hieiil of iiiMoivciit. If an Insolvent has book debts owing to hiui, however small, he is bound to insert them in his statement, and if ht) omits to do so with intent to defraud his creditors, he is guilty of a misdemeanour. Re(jina v. McLean P. d- B. '611 . 31— Enforcing? claim auaiiii^t Assignee— t'omily dnni JiitlgeN power as to— eiaiiii must be in iiatineof a debt. The provisions of sec. 125 of the Insolvent Act of 1875, only apply to the enforcement of a claim against the INSOLVENT ACT OF 1869 AND 1875. 725 ^^^^^gggSSO^- - assignee in tin* nature of a debt, for whicli the creditor holds some of the securities mentioned in the section ; therefore a County Court Judge has no power to determine that a deed to the Insolvent which is absolute on its face, was intended as a mortgage, and to order the assignee to reconvev on being paid the amount due. The grantor's only remedy is in equity. Ex purie DunriUe — Re Travis 1 /'. ,(■ B. 83 7. :t'i-HoiiK'!>>t<>a«l— A|>pli<*ntioii to •^ct-oflf «>iaiiie— Power ot <'.<'. Jiidee — Land under inort^fag^o— intra vire^. By an Act passed by the Legislature of New Brunswick, lil Vic. cap. '2^), it is provided that the family homestead of (•very liead of a family to value of $600, shall be exempt from levy or sale under execution and provision is made for setting-otf the homestead in case of a. /?../'«olv4>iit not ki't'piiip:. A trader who does not keep a cash book is not entitled to !i discharge under the Insolvent Act of 1875. Gilbert Amfin'''', i(t. v. Ginmurd, 2 P. (0 B. 148. 1(6 -FiniKl rliairH:<>(l in |>lvviii <»oo4lM «liMli'niiie«l for n'lil. Assignee of insolvent ma\' shew fraud in convevfiuce of premises hy insolvent to defendant, and that relation i)f landlord and tenant did not consequently exist. Srr Land- lord and Tenant. McLeod v. Mcfridrk. 'I'a\iiti4»ii -AM<>«iK:iiiiieiit — Li4>n. The estate of an insolvent in the hands of the assigiite is hable to taxation. See Assessment 22. May,>v of st. John V. McLeod. l>iM*liHi*i;<> iinil4'r Act iiiuM l><^ pleaded. .SV' Pleading II. 56. Grattan v. Girvan. Ti'ov4'i' >»li4'i'itt jUMtifyiii;; under »i<*iiarg:e — Legal payment — Certioraii.- Cost«i'-mi>)cellaneou!«. See Insolvent Act of 1869. I— Application for relief— Acconiitint; Tor propcrt). An affidavit for relief under 1 Wm. IV. cap. 4:5, must account for all the property the defendant may appear to have possessed. Applications for relief may be made iu the suit, or may be considered as distinct judicial pro- ceedings. JVilmot V. Cornwell and Babitic, Ber. 31. INSOLVENT CONFINED J)EJVrOPw 721) To entitle m ikl'tor to u disclmrf^i' <»u the j^round ot hiiviiig btcn fdiilhud tor a year, it must t'X[ilicitly tii>[)enr that he 1ms Ik* n in confinement for the whole tinif^ in the suit in wlii<.'h tli( application refers. I\ r juirlc Ifiintiiiar, II !-. 'id'.t. :t-A('<'oiiiiliiiK ><*■' |H'0|»<>i'ty Voliiiilaii-.t «li«>|M>«>iiioii. A coniiiied delator, applying; to l>e discharged under the Act (i Win. iV. cap. 41, «ec. 4, must account lairly and fully for any property of which he may have been in pos- ixssion at the time of commencing the action, and relic f will not be granted il hi« inability to discharge the del)t iiiisHs from a voluntary disposition of his proi)erty made li'inliug the action, the value of wnich is not properly accounted for. ll'ii( r v. Go.ss, 1 Kerr lU'S. I 4s«.i(.iiiii4'ii{ «»t propci-ty— l>(>o«l— Pi'odiiction. Where a peincn who has assigned his property t(^ trustees for the hemtit of his creditors, applies for dis- cliitrj,'e under the In.solvent Debtors' Act, a copy of the trust deed must It- l-rought before the Court. Mil-'nrlam V. (iunhiH, '1 AIL 1(12. »-AsHi^iiiii(>iii Otti'i — \oticc. Where u cuutined; debtor, possessed of property, hfis iiotoileredto assign it to the plaintiff's, at whose suit I i^ in custody, in the manner directed by the Act 13 \'i ^q>. 31, he must ck-arly shew that such deviation has L-t Wen made with any unfair object, before he can claim the •assistance of the Court. An assigment of property by u '"tin.l debtor to a third party, without notice to the ■ ^eciition creditor, in trust for the benefit of such of his •'«litois as .hail execute the trust deed, within two 'Hontlis trom it. date and release him, is an undue pre- l''.nce within th. meaning of the Act. Charlotfo Count, lldhains, 2 All. 183. Aa assignment by an insolvent confined in trust tor the benefit of such of his creditors as '-.execute the deed within a limited tiuKv and release 780 INSOLVENT CONFIXKl) DKJVrOH. him from his (lel)ts, is jiriiiid incif an oUjcction to bis being discharged from confinement under tli<^ tenth section of the Act 13 Vic, cap. 31 ; but where a debtor had no means of paying his debts, nor any interest in the pro- perty assigned, and had been a prisoner twenty months, the Court discharged him. (linrhxtc CoKnfj^ B,inl; v. IVilUnms, 2 All. 258. <>— Var:aii<'«' - D«U'd— <;'oiisid«M'atioii. W'liore an insolvent debtor having been conllned moif than a year, apphed to the Court for rehef, and in settui^' forth the sum he had received for a lot of land, tlieic appeared a variance c( t'uO between the price allej^'ed bv him and the consideration expressed in the deed of cmi- veyance. IfchI, That this circumstance, une.\])huneil, \vii.> a suf'ticient ground for refusing the application. K.r pmh (losn, 1 Kerr 1(J4. ■J— <'OIIV<'JSIIH'<' to Soil. I^etween the signing of the judgment and issuing; the execution, the defendant conveyed his hind to hisson.wbo gave a ])()nd to sup])ort the defendant for life : the Cmn refused to discjiarge liim under th" Insolvent Debtoi i Act, tliough he had been in custody over twelve n^ontiis, and though the land had since been sold by the Sherii)' under an execution against the defendant ; it not a[i- l)earing that the son had lost the possession of tli- land, or tliat the ])ond was not still in force, /v'//// v. Wilson, 1 .1//. 375, M Where an insolvent iLotor had conveyed lii? l)roperty to trustees for the be nelit of such of his creduors a'i should execute tlje :x months under the Insolvent Ccmfined l)(d)tors" Act (1 Ko'. mm ^Wiyi.mi I, Ji insolyp:nt confined dejbtor. 731 Stilt. Clip. 1'2-i), that he lias the means of supporting him- self: that is a ground for suspending the order for supjioi't, under thu 18th section of the Act. Dcslii''y.iii/ v. }[ii'iii''!i, '> .ilh 1. H) J)efendant having been arrested on y/i-.s/;- pro- ■(■ss, applied for support uader the Insolvent ContJned Debtors" Act '^ J lev. Stat. cap. 124), and was refused : he afterwards entered special hail, and judgment having been si'jneil in the suit, and a <-ii. aa. issued, he was again lutestcd, and remained on the limits for upwards of six months. Ih'ld, That an application to two .Justices for -apport '.vas necessary after the second arrest, before t}}e Court (-'oul;l relieve him under the 9th section of the Act. By Act '2(1 Vic. cap. 10, appUcation is to be made to a JikIw i)f the Supreme Court. ^ Walldrc v. ('i)lcinaii, 5 .1//. lit. II B'owci- ill <'oiiii lo «liM<>li:ir{;;o— <'oiiliii4iit lor ,v<'af. llie Court is empowered to discharge an insolvent con- liut^d debtor after lu? has been a year in prison, although he may not have applied for weekly support. An objection to the discharge, on the ground that such an ajiplication has not been made, must come from the creditor : other- wise the Court will not. notice it. l-'nirlxnil.H \ Polhy, "2 K' ir 80. \'i Discirtioiiary |io\\ <'r l*i-<>r«'i'4'ii«-«> \\illi<»iil tViiiid. The Supreme Couit has n discretionary jiower to dis- 'hiuvc an insolvent delitin- under the Act (5 Wm. IV, ca^). II. and will exercise such discretion wiiere tlu' debtor -las liiis not iicted fraudulently, though he has given a pref'-r- HWe to creditors which would prevent bis discharge i>y two Justices under the second section of the ^'^i. l\'ri.>i- V. yw.s, 1 .1//. 72:}. l''(~Qll:l«.llil|^; <»i'(i<>i- ol" .lii^t {<><><•>. \\hiri- .Justices make an order for support under the hisolvent |te])tor"s Act— (1 Rev. Stat. cap. 121,)— and it itpfHars hy thr <-.\ainination of the delator that he has 732 INSOLVENT CONFINED DEJJTOR. given an uuduo preference tc one of liis creditors— tliii< Court has power to quash the nrder. Mclhiinild v. W'ntt 1 fhv). -24. II County Court .Tud;j;e has [)o\V( r to discluirfc dehtor in any county within his district, or to llrill^ del-tor from any county within his district, and possesses same power as Supreme Court Judge to discharge. /■,./■ pnrir J/irdiiti , 1 IIiiii. o7"2. I>> -Oi-i-~ .liiMli«'<>H niM<*li:if;;^4> f'oi- ii4»ii-|>:i> iii«>iu. An order for discharge" for non-payuitut of wteklv allowance, under the Insolvent Dehtors' Act, 1 llev. Stat. cap. 124, need not be made by the same Ju'-stici-s that made the order for support. Parker, J., and Richard -T., ilh-H'u- I'ljitihiis, J(i)ii'>t V. Fletcher, 4 All. 5o(). 16 -* olif*' of ordci-. Where tlie creditor's attorney was in Court, and heard tlie or(Ur for support made, notice of it is not required, Kx parte -/(trdiiie, 1 Ildii. 57'J. I? -Fi\(>4-iilioii al'H'i' li:ii'^<>. Wliere an insolvent Debtor has been disciiarged under the 1 ikcv. Stat. cap. 124, the Covu't refused to allow a ne\\ execution t( issue against him, though tb.; weekly allnw- ance had been tendered to the gaoler ol th" comity U[ion the limits of which hi' was coniiued, and at tlu lionse where he lodged. 1 >(>e v. lfi>litieH, 4 Ki rr i>5~. Srmlil(\ That if the order for discharge had been irreguhirly obtained, it should be set aside before any proceedings an- taken against the Debtor. Ihiil. '■r Act of Assemblv 21) Vic. can. 2S. authorizing pay- « A. ' i. I ment to gaoler at ga( 1. IM- L4>f;sil |>:i.viiM>iit. I'avHiiMit of th" weekly allowauce to a confined do])ti'r may be made in coins which are nf»t a legal tender, i! ii^f ol)iected to. llittJnini/i v. Jiaii, 4 .1//. ')!•"), If>— C<>i-li4>i-iii-i. A certiorari lies to renio\t into Supreme Court tlie proceedings before .liistices i.nib-r Insolvent Confineti J)el«tors" Act. U'hitr v. (',,!< inni,, 1 .1//. 030. MMi mw- INSOLVENT CONFINED DEBTOR. 733 •JO -<'o»it«i. Cost -i will not Ix' given on refusing tliu lii-rft application (if 111! insolvent debtor, except in an extreme case, but the rule is otherwise on a second application where tlie objec- tion- iniide at the former, are not fully answered. See ,\lrl-',irl'iin' V. (iordnit, '1 Ml 1()2. •il Where an application to discharge an int^olvent (l(btor Wiis rt'fiH'd with costs, the Court refused to make tile y\\\\\\ of the costs a condition precedent to anothtir Ui'i';. auuii. Se( ^l'^J•'ll|■Ii'll|>l*«'ill<> < oiiii fu :;i'iiiit 4iis<>li:ii-K^«'. Wlierf an oider for support under the Insolvent Con- lined I'ehtors" Act, 1 llev. Stat. cap. 124, is made; by a Judge of the County Court, a Judge of the Supreme Court has ^'(. ii.iJsdiction to order his discharge for :iion- li:iyuient 01 '■.:u weekly allowance, (jtithnc v. Sudliiaj, 1 Vnij. 3(30. '2;t -^loti - I'l-aiidiilciil i-|y. A ijn)tion for discharge under the Insolvent Con- lined Delitorri" Act, was dismissed with costs, it apjH';a"ing tliiit defei)(laut had been guilty of fraudulently uuiking iiwiiy with his i)ro])erty, and had refused to pa.y plaintiff, although he had ample means after the comniencenieui, of the action. Merritt v. (rodfreif, 5 AIL 101. 'il~l«.siu;iiill<>iil iiii4l<>i- liiiit 4«l ol IN<>!>. f'ebter making assignment under Insolvent Act of lyti'J, eiuuiot makf ;ippli«>%tion for relief under Insolvent Conlined Debtors' Act. /.'<• Hcnenn, 2 Pikj. 200. 'l^ Kcliisal ol by .IiiiiH'ii8. On a luotiiju for discharge under tiie Insolvent Couliued I'l'btors Act, 1 Rev. Stat. cap. 124, sec. U, the uftidavit must state the reason why the application to the justicos was refused. It is not sutilicient to swear in the words of tlie Act tha' the former ap[)li«'ation was made " without success." llii„ih,^ v. ILnnilton. 5 All. 12. 734 IXSUiUXCE. 'i<»— liiipi'iwoiiiiK'nl iiiidci- |»i-4MM>>.>. Ironi <'oiii-t of (Gov- ernor and C.'oiiiicil. A person imin-isoned uiitler a writ dr coiitiniir,, nin\. cudo issued out of tlie Court of (lovernor and Council under the Act 4 Win. 1\', cap. 30 will not be disc barged umUTtlie provisions of the Insolvent Confined .Debtors' Act. Ex pnrte Chase, 6 All. 8'J8. IVoii-siiii— l>«'r<>iiilaiit iMTOtiiiiii^ iii«iit. See .Jiidguient., as in case of Non-suit 11. 0. 11. I'ai'tlK-i'— 1*<>\\ 4>l' lO <'OIM|»OIIlll>t. Set' Partnershi[) 8. A>*4-ci'tsiiiiiii;; iii^ol v<>ii<-.v« Src Pleading il. 36. Fl4-a€liii^ 4li»i4* K4>|»li4-atiuii fraiut. Sfr. Pleading 11. ;■. ^ili4'rjir«« i>4>iiii4lau4' 4> 1 C'a.?!)a.- I>(>bn>i' (>t)iiiiiiiii:i: dis- 4*ltai'^:4'. See Sheriff 1(3. A|>|»li4'ali4>ai for <'4'i'li4»rar9 t4» Ctriii^ up iiro«'<'C4liii;'k IH'r4H'4' Jll^>ti4'4'*<.> Sci ( 'crtio'dri 1. 1. il\SI'Kiuraii4-4> 4»ii li4Hi«>»4?— Titl4'— Inl4'r4'*t.^ Plaintiff being in [)tssessiou of a house effected insur- ance upon it as owner. The property on which tlif liou-t- stood was leasehold, and the legal title prior to the ins;u« ance was in W., under whom plaintift' claimed h\ a writing (said to have been burned,) not under seal, ami stating no consideration. It appeared that W. Lad. beloif the insurance, assigned the lease to 15. by deed duly iv[- istered. Held, That the title was in B. by the regi^stn of the assignment, without any entry, and that plaintiff ni'i INSURANCE. 735 no insurable interest. Crockfhrd v. London and Liverpool Insumiu-c Co., o All. 152. S. P. — Cvocl:*oyil v. Equitable JiisunvK'i' Co, -J -1^^. 051, •2-Derlsiration«» -l-vi«l<'n«M'. In an action af)[ainst the Secretary of the Society of liidcrwriters. under the Act '21 Vic. cap. ()1, the declara- tions ')t' an underwriter on the policy, relative to the sub- i(et matter, are evidence against defendant. /'".//!(/ v» SUjmAt. 5 .1//, 107. ;t TraiKl I'iit3<'<' ciMilrsifl. I'laintitr insured ^wo buildings, and the merchandise in one of them. a.gainst loss by fire. One ot tlie eonditions (if the [lolii-y ilechired that if there should he any fraud, ovci'L'hargr or false swearing, the claimant should forfeit all cliiiiii under the policy. One ground of defence to an action lirought on the policy was, that the plaintiff' nuide a false ileclaration as to the value of the goods lost by the tiiv. Hrbl, That the contract was entire ; and if the (ilaintift' was guilty of fraud or false statement in reference to tilt' goods, he could not recover any part of the insurance. i'li.'ihmini V. Lonihni niid L'lrei'pool Inn. Co., Jfil. T. 1862. I <><>iu'ral av<'i-:i^<'— Kiilc. A vessel sailed from Shields, G. B., bound for Provi- dence. Iiliode Island, and was obliged to put into Cowes aiul ('ork to refit. A jettison occurred durring the voyage, and on her arrival at Providence, a general average was made up, aecordhig to the rule of that port, which included an allowance for seamen's wagt'S and maintenance Udd, Tbat the rule prevailing at the port of destination was to be adopted in making up the adjustment of general average cliar;^.s; and not the rule in England, whore such charges 'voiild i)e excluded. Mcdircrn v. Stiinicst, 5 ,1//. ;j20. V K(>|>siir«. \oi «.4M>kiii;: iii*>ti-iirti<»iis-Xsii<' «l vi'^sel — l.isil»ilil} lot- total loy the same tire whieli destroyed the plaintiff's property, he was distpialitied from certifying under the words of the condition, " concerned in the loss as a creditor, or otlwnrise.'" Qiuerr, \\ hether the fact of the neari'st magistratf being a creditor of the insured disqualified him from certi- fying. Si'inhle, No. Gntionij v. 77/'.' .Ktnn Im. Cd., <'iii'il,v — liiti'iilioii. Where a bill of sale of a ship has been e>:ecuted, it may be shown that the transfer, though absolute in its terim, was intended only as a security, and that the transtVrroi has an equity of redemption. MiHi'hic v. Stfhmxt, (J ,1//. 104. M— I\otii*<' of HbHiKloiiiiiciit iiiiiMt Ix' trivrii l».v It'h'"' owner— INolirr hj cqiiitalile o\\in*r Kerovei). Notice of abandonment must l)e giv»u by the legal INHUIIAXCE. 787 (iwiur of a vessel. Where such notice was ^iven by an ,i|iiitiible owner, and a verdict recovered against the under- wiiti'i's as for a constructive total loss, the verdict was set aside: the plaintitl" only being entitled, as e(|uital)le owner, to recover for partial loss. Ihi .1//. 311. 10 < oiix-umtiv*' lolsil lo****. An insurance on fish was declared in the [)o!icy to be •against total loss.'' firld, That a. constnu-tive total loss •anie within the words of the policy. (>'Li'ii>i v. Stiimesf, 11 < laiin lor <-«*> -Evitli'iicc of l»:irfi:il lo««>< — \o 4>viii<'<' of aiiioiiiit of i-(>|>aii-««— Daiiia^OM. Plaintiff claimed for a constructive total loss, but the evidence showed a partial loss only — the vessel having been repaired and sailed again. No evidence was given as to the amount of repairs, and the plaintiff was non-suited. //'/(/, That the non-suit was wrong ; and that plaintiff was entitled to a verdict for nominal danniges at all events. MWuhjr V. Stiiiiicst, K('— For<>rloHiir<> Snlv l:^\till^^lli^«lllll(>||t ol' iiitnTMt. i'l.iintiff insured his interest in a house as mortgagee ; the mortgage was afterwards foreclosed, and the property sold under tile decree, and purcliased l)y the plaiiitilf. ^I'^'l That his mortgage inter*-st was extinguished by the '■ ilosure and sale, anil that he could not recover for a loss happening afterwards. (rK-ikin v. 'J'h< Phn:uU Ihh. Co., 6 AIL 42y. ■'3 ^oriusic<>(>— lii l»y l>4>l»l |»ai(l. Vrni re a mortgagee insures, solel\ on his own account, 738 IXSIJHAXCE. it is only an inMivancc of iiis (lel)t : ami if tla-deht is after- wards paid, or tlir mortgage diKchargi'd. tli(^ [nyWey ciascs to liave any operation. Ih'aJ. I'l— t'4»lltilll1illl4-OOri'oli4'> 4MI 4itOsil — <'ov4'iiaiif not iiiaiiitiiiiiiiliU'. A policy iif insurance on goods, against luss Itv live, was affected in the name of (I. F. .t Co., H. F.. the plaintiff. having afterwards hecome the owner of the goods, the agent of the Company made and signed the following indoi'semi-nt on the policy : '" This insurance is herehy eontiuued in tin name ol' H. V." I hid, (assuming that the ag^nt had powtr so to continue the ass;;r mce for the henefit of the plain- tifl',) That the indorsement not being under the seal of the Company, the plaintiff could not maintain covenant on the ])oiic3'. 1' nist V. Tlir Lircrpn)!, Lnuhni d- (jbihr lii-<.C'i., mi. T. 1871. I'l — liiMui-ati «' Valii<>— KtM-ovci'}. Plaintiff insun^il ST). 000 on his intereit as mortgagee, in the undivided half of a mill and machinery. Tlie mill was bnrnt, and the i)laintit!' furnished the ageut of tlie Company with the preliminary proof required by the [lolicy, which he considered sulUcient, and agreed to pay the loss, but requested the plaintiff to allow the Company sixty days to pay it, to which he assented ; and the agent then gave the plaintift' a letter, stating that he had examined phiin- tiff's claim : that the loss appeared satisfactory, and that he agreed to pay it within sixty days from that date. Soon after ihis, one (i. wrote to the agent, stating that he mwA half the mill property, and claimed half the amount insnred, as the mill was insured to its full value. I'he agent thereupon wrote again to the plaintiff, and after re- ferring to a i.roposal by G. that the Company slioull re-build the mill, stated til it undei" any circumstances tlie Company were bomul t) protect hiui troiu loss, and tluit they held themselves to indemnify him hdly. Iher.- \v:i> evidence that the mill was not worth more than half thv amount insured upon it. In an action on the p iliey. tla defendant ])aid 82,r)0() into court, and pleaded that the IXSUIiANCE. 1 89 plaintiff's interest did not excoed that sum. The jnvy were directed that thi' phiintifY coiihl only recover the actual \;i!iU' of his interest in the mill ; that if the defendants a^ent, with l illl(>l'4>Hi -A^'I'4'<>III4>III r4>l' l'4'-4'4>liV4>.VailC4'. Plaintiti' being a mortgagor in possession of a uiill, eon- veyeu it away by a deed, absolute on its face, taking hu agreement for a re-conveyance on payment of a certain suuMvhich he owed the grantee. //r/(/, That this was in ciiect a mortgage, and that the jdaintift' had an insurahle iuteit:,t. KiHji v. '/'//(' Lircrpdol, [joiulmi ,(■ (ilnhc Inn. ('<>., liii. T. 1.^71. 17 OllK'i' iiisiii-:iii4-4'^ :iV4>i4liii^^ |M»li4-,v iVl4>aiiiii;; 4>r <'0ii(Uli4>u. One of the conditions of a policy declared that 't should I't void in case any other insurance was made on the prop- •I'ty, unless notice thereof was given to the Company. JlrJd, lliat this only referred to other insurances made hy the assured, or with his knowledge or consent ; and not to nn insurance made bv his mortgagee, without his knowledge. llwi 1« Polioy < oimliiKtioii 'riiii4* rUU. A jolio \ (I insurfince on a vts^i If r lour c alendar 740 liNSUUAXCK. months on a lisliia^^ voyage, l)0,L;innin'^ the adwntiii'e from th(! 11th Jinie instant, and to continue until the Siiiil exi)iration of four months,"' without stating where tli.M-f.s. sel was to sail from, or whither she was to return, is a time risk, and is not terminated hy tlie vessel returning from a tishing voyage within that period. />;///.,./,• v. .V,„' llniu'iir'ich Miirine .l^><>irinicc Coinjniiiii, i] Kerr ();"i4. 19— FiiT polic} lii('i-<'si*>«^ ot ri<>ik. A policy of insurance againat lire upon a dwelliii" house, contained a condition that if, after the insuniuee was effected, tljt; risk was increased hy any means within the control of the assured, or if the huiiding should, with- out the assent of the assured, be occupied in anv wav so as to render the risk more hazardous than at tiie time of insuring, the insurance should hv void. Il'-lil. That the assured afterwards ceasing to occupy the house witliout any fraudulent intent, was not an increase of the risk with- in the meaning of tlie condition, unless it was proved that under the circumstances and situation of the l)uil(hnt,' in- sured, its destruction hy fire was more [)robal)!e wlien un- occupied, than if the assured had continued to reside in it. /-->.// V. Tlw .Kfini fii.vi. Co., 3 All. 21). •JO >iiuiiiiiu ■»>' :ir('i'<>(lil4'4l A^i'iit — Valiility - I'liiiia f3ic-i4> |»i-o<>l ('oi'|>4»rat<^ s<>sil. A policy of insurance of a Foreign Coni[)any declai'iJ that it should not he valid until countersigned hy \\. the agent at Saint John. In action on the [lolicy, ]u'.)ot' that it was signed hy W. and that he acted as the agent of the CvKiipany at Saint John, and had paid a loss on a siiiiiiar policy, is suftieient under the Act l;} \'ic. eii|i. :!7. it nu- concradicted, to shew that he was the accreilited aj^ent ot the Company, and to dispense with proof of their eoi[)oi'- ate seal. Uohcrtnoii v. Tlie Prarincidl Mufii'd incl (jeiu'ml In.sii I'll lice Co., 8 All. 375). *2l >o Pitteiit Ainhi^iiity— l'!><:i^:<' of 'I'ladc. A policy of insura)ice on a vessel, described the voyage to he from '• St. John to a port of call and discharge and loading in the West Indies." Jleld, That there was no INS [TRANCE. 741 patent ambl^^uity, and Unit the words of tlio imlicy meant one port I'Otli for dlHcliiirj:(o and loading : and not two .,(ij.f(._on(' for discharge, and another for loading. Me- liifrr)! V. Th( I'l'orincidJ Iiisaniuce Compdiiii, -4 All. 64. ihiiir< Whether, if it had appeared by the usage of tiaile. that a pecuHar meaning was attar-hed to the words "a port (if call and discharge and loading." the policy uiiplit not have been construed according to such usage. Ijut also, Sniililr, That such usage and construction should Ic- averred in tiie declaration. Ihid. 'li 'Usno ol P<>licy— Time— IVoti*'*' l<» Itrokoi-. ■flit- liusiiuss of an insurance company was nnmaged liv an iif^ent residing in St. John, to whom application for iusurancf- in other parts of the province were made through Irnkers. //'/'/. i[)er Ritchie, .J.) That a policy was is- Hied when the agent forwarded it to the broker for delivery. Notice of a prior insurance to an insurance broker, is not notice to tlif company. McL((chl>(n v. .Ktun Lmurance I'n.AAIL 17;-5. 'i't -liitoro^t of si«>siir4Ml -Doflaratioii^i. hi !Ui action upon a policy of insurance for the loss of ii vessel, the verbal declarations of the plaintiti', the sole ivgistered owner, that another [lerson, a i'oreigner, was lun't owner, are not sufficient to disprove the allegation of interest in the plaintiff, who bad ol»tained the register n[iouhiirown declaration, and acted as owner in procuring the insurance, and in the other affairs of the vessel. IVat- '■'II V. SiDninrra, '2 Kerr (52. 'il-Pi'(>liiiiiiisii'> pi-ooi- -i'oiiditioii^ l>r(H-<>doiit. hi an action on a policy of insurance containing a pro- ving that the loss was to be paid within sixty days after li'oof of loHs and adjustment, and proof of interest in the l'i'o[)erty such preliminary proof is a condition precedent i'tuf ijliiintitl's right to recover, unleSN there is an aver- iii'nt that it has been waived. HihiitHi>n v. Tlic New I'lmirid Marine In.'iiirauo' Ciniqiauy, '6 All. ?M'S. '"'i-Itloi'i^M^for— liM-iiiiil>i-anc(>— Oi*>>rlo>>iii-c. A luortgagoi may insure to the value of his property ^..^.^KtiJMilKlf^ ■^j'\^,\\l>'* A/ 1 #.Yr'^: :,.;,^^^-vv::.w-(.'.W:i IMAGE EVALUATION TEST TARGET (MT-3) % A %^ y. I/. ^ x? 1.0 Si^ I I.I 11.25 25 •« -. II 2.2 11^ t lis llilio 11^ JA IIIIIM ^a c*^ / % y /^ Photographic Sciences Corporation 23 WEST MMN STREET WEBSTER, NY. 14580 (716) S72-4S03 ^ iV V •s? \\ '<^>^ \ ■^ ^ % i/. 74-2 INSUIJANCH. without tlisclosiug the incumbrance, unlt3.s8 there is a sti- pulation in the poUcy re(iuiring it. PnLn- v. Equifahl, Lis. Co., 4 .4//. 5H2. *«— .4l»sni«loiiiii«>iil Kol'in^al to :i«>i-4>|»t !Niai«> ol ijin^ ^:ov<>i'iiiiiK^ i'«'covci'y. A vessel was driven on shore, and lieing supposed to W a total loss, notice of abandonment was given to the under- writers. They refused to accept the abandonment, got the vessel off, brought her to St. John, her port ol destination, in a piace of safety, before action brought, and rf.iiiii(,-.l the owner to take charge of her. The cost o repairing lar after - " waj brought to St. John l)y the uuderwriteis, would be V?s than hur value when rc^paired. //.;/ •>l»li>iii<'iit*> --^I»t<>iii4>iit<^ ill altiiiavil \r roiiiit ol° lo*>«.— D<>liv4'ry of. A condition (»!' a pohcy of insura)ice on clothing. |)i'o- visions, etc., in St. John, i'e(juired that i)ers()ns su^itainiiu loss should forthwith give notice tiiereof to the Company, and within fourteen days thereafter deliver in as pavtimilai' an account of the loss as the nature and circumstances oi the case would admit of, and make pro.)! of the same, itc, and if there appeared any fraud or false statement, or that the lire happened l)y the wilful means, or connivanLu ot the insur'.-d, he should be e.'ccluded from all Uiwiw under the policy. The plaintiff's affidavit lurnisiied to the Company under this condition, claiming a loss ol turs, clothing and bedding by fire, stated that he wa8 iii tiit County of Sunbury at the time of the lire, and was nnahle mm L\srr>AN( i:. 741 to ascertain in \Yliat nianncr it originattHl. In hitj tvi- (leiK'e on tlio trial, tlie [)laintiff swore that he left St. Juhu aliout 7 o'clock \). ni., on his way to the County of Snnbury, wliw ill' arrived the following moriiinf; : the tire broke out al !t o'floek, at wliieh time the iilaintilV wouM have been in tlie County of Kings, on hiswav to Sunbuvy, and only a ffw miles from 8t. John. The iiouse was locked when the tiiv was discovered, and on being broken open it wns found to be in a room iji which there was neither tire-place nor stove, ami no appearance of any clothing or bedding; a oaiidlestick was found in a barrel in this room, containing straw itartly consumed. IfchJ, That it was the duty of tilt' t'laintirt' to stute in his attidavit that tlii> house was Inokci.l at the time of the tire, the circumstances connected with liis leaving, and where he was at the time, and that i)i^ statement that he was in the County of Sunl)ury, was iifal.v' statement and avoided the policy. //«>viiili<>ii Iiil4'iiti«>ii 4'liaiiu:(' <»!' ri«>k — l>i>n'iitioii -Jii«>li(i:il»l4' 4l<>lti> a 4|ii4>*>iioii of l:i\% K('a«>4»ii- able a qii4'<»lioii forjiify. A ship was insured for a voyage from Liverpool to (arditl', thence to Aden, and from thence to India or liurmali. She was chartered for and set sail from Ciirditl' to Aden, with the intention of proct>eding from Aden to ( hindia, instead of India or Burmah, and was lost before 1' aching Ailm. Ifehl, No deviation, and that the under- wnU'Y \\n> hable. ncnl nnd anothi'v v. U'eldoit, 1 Han. 458. A ship was insured for a voyage from Dundee to St. •lolm. N. 1j., thence to a port of discharge in the United Kingdom. She started on her voynge ami ari'ived at St. •I'llni. where she was put on the blocks, detain-'d 17 days, I'paircd and re-elassed. llrhl. That this changed the risk, \\rtso,luivalent to a deviaticm, and avoided the policy. JhiiL ^Mietlier delay in a voyage is unjustiliabh,' or not, is a ^^^yX^y^l^ Ill 741 INSURANCE. question of law for the Judge : hut wlietlur iuirea>f.naM. or not, i« n ([uestion for the jury. Uml. 30 i^ot <'oiiiiiiiiiii4*iiliiiK^ iiii|»oi'taiit larl*>. I'laintifl's ai)[»hed to defendants on Nov. I'Jtli to insiin- their vessel on a time policy for six months, beyinniu}; un the !»th Sept. previous, the day on which she left Swansia for St. Thomas, where she was then overdut . In tin writt-jn application in reply to the question ' wluit IkuukI, ' the i»laintirt"s reply was "a port in the \Ve.-5t Indies." Tla- news of a hurricane having occurred at St. Thomas lia 1 het n luihlished in the newspaper.s that morning, and \\,i« knnwn to [tlaintirt's hut not to defendants. Ilihl, in an action to recover for a total loss, That the det^tination nf the vessel and the fact of there being a liurricane at liti port of destination, should have been corumuuicatcd to di- fendants, and this not having been done, the plaintiffs wtn non-suited. Mdlnun/i v. 77/r ]'f>riiiri(il ///s. Cn., 1 //. ,, G2'2. :tl- K>>-liiKiirHia<-4'— Kclalioii of |»4»lic.v. Plaintifi"s premises were insured in The London aiid Liverpool Company, from "ind October, l^^l.". tn 'iiid October, 18<)0. Before the term expired he reueivnl nutin from W., the agent at Newcastle, that the London ai. i Liverpool Company would renew the i olicy on the sainr terms, and accordingly he paid '\V. the premium nioiu; and got his recei[it. A., the general agent at St. Join:, declined to renew the policy, and paid the premiuras- U> defendants, who issued a policy ^taking the description (t the premisi'S from the London and Liverpool hook^' dattl the Kith October, 1H()0, but insuring from the ind Octol'ii. 1860, to 2nd Octol>er, 1807. The premkses were destroua by lire on the 13tli October, before the policy issued: I'i.t the plaintiff did not know that he was insured hy dtleii- dantfi until he received the policy from W., who al?u actui for them. Ilffil, That this amounted to a re-insuraiur. and there being no fraud, plaintifi' was entitled to recovei ; that the policy related back to the 2nd Octolier, and that the condition in the policy, that all facts relating to tl.' INSURANCE. 745 :i> insure- state of the premises must he disclosed, must he taken to relate to the time from which the policy ti)ol; effect, (lif- ,;„v/ V. Til'' (Jii''''n Tint. Co., 1 //'///. -i:V2. 3'2-liiMii'Hblr iiiH'i'OHl— Willow. A widow h.aving continued, for four years after her liusbaiuVs death, in possession of a lioiise l)uilt on land of wliich he was the lessee for years, and paid the gronnd rent, insured the house in her own name. No administra- tion was taken out on the husband's estate. JJdd, That jlie had an insurable interest — 1st. As the presum])tive owniT of the house; 'ind. As executrix '/c aon turf; 'Anl. As tin; widow under the Statute of Distriliution. l.i'vthii V. Thi' (Jiirrii [lis. Co., 1 Ilan. 280. :til Pi-oiiii«><' by riiilci'Wi'itoi* to pay -KiKiulrdv of riici«>. Where is was proved on the trial of a ease a;:?ainst an tinili'rwriter, on a policy of insuranct> for a loss, that the tlifendiiut had promised to empiire as to the particulars of tlieloss, and if correct, pay it ; and that after several days 111 (lid promise to jay, the '.ourt refused to disturh a TL'Vilict for the plaintill', although there was evidence of a ikviation, which otherwise would have avoided the policj. Ilnlv. MuLiiifiJiliii, 2 I fan. 128. '\i ■( Waivor ol* proof of lo*.**. I'laiiititl", whose stock of goods in his store was insured by defendants by a policy mider seal, sold them to A., takin};; notes in payment. Subsequently, at the office of defendants" agent, and by his consent, he indorsed on the policy that he hereby assigned it to A., having sold him the goods. This assignment was entered on defendants' books, hut not made under seal, and A. was not informed of it. The tirst note being unpaid, plaintiff, by consent of A., took back the goods, and possession of the store. Tliey were afterwards consumed by tire. Held, That the assignment on the policy was invalid, and that plaintiff could recover under the policy for the loss. Weldon, J., rv— C'oiili'ihiitioii. Where the owner of a ship if* also tlie owner of part of tilt cargo, which was thrown overl)oar(l for tlie preservation of the ship in the course of the voyage, on wliicli insurance was effected. IfeU, That such owner might recover from the insurer on the ship the average proportion which the bhip would be liable to contribute to the loss sustained by such jettison of the cargo. Marks v. Wdtnon, 2 Krrr 211. Whf'e the goods are laden on deck according to the custom of a particular trade, the owner thereof is entitled to contribution in general average for a loss by jettison. ihuL •i1- Delciifo— Previous iiiMiirniict; — For<;iKii luiv. One of the conditions of a policy of insurance was, that if tie assured should have any other insurance on the property, not notified to the insurers and indorsed on the policy, the insurance should be roid. At tlie time of insur- ing his house with the defendants, the plaintiff had an iusurance thereon in the name of M,, in an office in the State of Maine. I [eld, Tnat as by the law of this eouutry, neither the plaintiff nor M. could recover on that policy, the defendants, in order to avoid their policy for want of notice of the previous insurance, should have sliown that by tlie law of Maine the plaintiff could recover oil the policy effected by M. McLachhni v. The Mtnu hmancf Company, 4 All. 17H. :t*t-R(>qiii!i«it<> |»i'ooi— Prnliiiiiiiitry proor— Affidavit— natciiality of dcKcHptioii. One of the conditions of a policy of insurance recjuir- ttl that all persons sustaining loss should give notice to the agent through whom insured, and within one month Hfter the loss, deliver in as particular an account thereof as the nature of the case would admit, and, if required, make proof of the same by their oath or affirmation, and ly the production of their books of account, etc., and should, if required, procure a certificate under the hands oi three of the nearest householders, etc. The plaintiff liaving sustained a loss, furnished an affidavit and certifi- 1 748 INSURANCE. cate in the terras of the condition, witliout bein^ iciuircd to 'do so. In an action on the pohcy, one of the noticts of defence was that the proof and certificate re(iuir(.'(l by the condition were not given by the plaintifH' after tiio jilL-jjed loss; but the defence on the trial was. concoalnient ut tiie time of elf«cfiing the policy. J hid, 1. That tln' atlilavit and certificate were admissible as part of the prcliu inarv proof. 2. l^utif not strictly admissible, it was iimiDir, rial evidence, and therefore no ground for a new trial. pril.mK V. The Kqititdhlc Iiisnrduce Co., 4 .1^/. 502. The plaintifif in his application to insure a Iniildiiii:, stated that it was owned by himself and P., and worked l)v them as a mill. At that time the mill was in tit- ]>q<. session of a tenant under a lease for live yoar-. vi^ iMMit- gaged to its full value, and a line of railw ;\ hml been laid out through tlie laud, for wbich the iilaintitf claimed damages, alleging that it destroyed tl/e mill There being nothing in the policy requiring sucli iiiatter- to be described, it was left to the jury, and they fouini, that the non-disclosure was not material. //'■//, Tiiat these questions were properly left. IhhL 39— Aniswci's to questions— Wni-rniity. An Insurance Company required application for insur- ance to be made on printed forms containing certain ques- tions which were to be minutely answered, and were tie- clared to firm the basis of the insurance. One of the tjuis- tions was : "Is the property involved in law, or mortj,'ai;- ed ; if the latter, to whom, and for what amount ?' The answer was : " There is a mortgage on the house tor t';300" — which was untrue. This application was referred to in the polic}', one of the conditions of which was, that if the buildings were described otherwise than they really were, the insured should not be entitled to any bentlit under the policy. Held, 1. That the answer to this fus- tion amount to a warranty, and being untrue, rendered the policy void. 2. That being an essential part of the contract, its materiality was not a question for the j iiy. Marshall v. The Times Fire Ins. Co., 4 .1//. 018. INSURANCE. 749 40 ilontlio wril. <'oiiiiii<'ii4'oiii«'iit of iictioii Im««iic or A policy of insurance is a mercantile instrument ; tlicrefore the term "^ronths" used therein, limiting the time ii^v 1 'ringing an action for a loss, means calendar mnntli.^. /''H//'n'..s' v. Pmcinrial InsitniiKui Co., Ifil. T. IHTI^ Wiiiit. Dili' (il tlie conditions of a policy declared that no actimi should hv l)rought thereon, unless within 1*2 months after tilt' loss; it will he iiresutned, in the absence of evid- cuoHoftlic time the writ actually issued, that it issued on thr (lay i^' hears date. Ihid. |l-l. l4» |»lsijiitill icfioii - 4:oii«liloii«<» - i*:ii'li:il Lo«<«> — I'i'oliiiiiiiai'v proof D«'viatioii — ^ii«|ii<>ioii<« rii'4>iiiii*i>tau«><>!>»— Ffaii«l Ivtt to .liiry. Wlune the plaintiff procures an insurance on a vessel lilonging to M., and by the terms of the policy the loss is to bfc [laid to the plaintiff, he may maintain an action tlii-reon in his own name. Dimnc.k v. Thi' Xair nnuiHirirk M'lriiir Aii.'iiirincc dnnpani), 1 .1//. 398. by the conditions of a poUcy the insurers agreed to pay within sixty .lays after proof of loss, etc., but that no par- tial loss sliduld l)e paid for unless it exceeded five per cent. Till' plaintit^' delivered the master's protest describing the loss, and the certificate of a ship carpenter that the vessel was not worth repairing. Tldd, 1. That there was suthcient preliminary proof to enable the plaintiff to recover for a partial los,-, and that a certificate from the custom house that tilt- register of the vessel had been deposited there as acondeined vessel, was not necessary. 2. That the plain- titi' might recover for a partial loss, though he claimed a total loss ; and that in the absence of any evidence by the dtltndant of the extent of the injury, there was sufficient evidtuce to sustain a verdict for a partial loss, though the vessel was afterwards partially repaired, and the value of tilt repairs was not shewn. D'unock v. The New Bnmsinrk Mniih' A^miraiur Compnnfi, 1 All. 398. Whether going to Saint Stephen on the River Saint troix was a deviation, or in prosecution of the necessary i'.i w ' M' 750 INSURANCE. purposes of a lishing voyage, upon a time policy, wns con- sidered a question proper for the jury upon the tvifltnci. Ibid. Though the circumstances of a loss are sus))icioiis. if there is some evidence of its heing accidental, wliich ib un- contradicted, and the (piestion of fraud has been fiillv kft to the jury, who find for the plaintiff, the verdict wili not he disturbed. Ihid. 4tt PiTiiiiiiiii <*ai>ii«'y rniicrlhMl Fiviniiiiu iiot<'M not iiiiitiiivd— Au:r«'<'iii4'iil Defendant effected insurance on a vessel in several offices, for all of which ]{. was agent S5,0()0 heini,' in plain- tiff's office. Subsequently defendant desiring to send the vessel to a port prohibited by the policy obtained fiom ];. permission to do so on payment of an extra |ir( iniuni, f per cent to be returned if the vessel left on or before the 25th November, 187-1. 11. at the same time told hnn, he might insure the vessel elsewhere if he could, anil lie would cancel the i)olicy upon payment of the earned pre- mium. Shortly after this, defendant effected insuranee in another office and sent the other policies to I{. reqiiestinj,' a return of ij per cent, premium, claiming the vessel had been covered before 'iSth November. K. returned the ;| pt;r cent, premium and received from defendant's clerk a r«- ceipt for this amount which also stated that the policy was cancelled from the 25th November. Shortly afterwards, R. sent defendant a statement of the amount which he required defendant to pay before cancelling the Poheie!), and insisted (m its payment in cash. Defendant eiainied that he was not entitled to pay anything until the pre- mium notes matured. ]Ield, That the i)ayment of the earned premuinis and cancellation of the policies were intended to be contem- poraneous acts. Biuuior Lis. Co., v. McLeod. Sn-nntii his. (U)., v. Saiiic. 2 Piiti. •!7. 43 AKviit. "Where the plaintiff's have expressly excepted themselves from payment of a general average loss for jettison of deck T*v INSURANCE. 751 car^o, till' agent could not impose upon the plaintiffs a liability which the defendant had warranted them to be free from, and whether he promised to pay the loss or not is immaterial. IJtid. ||-<'oiiditioii!^ — Pl«>ti«liiitf l*ro4»f' ol i»»Mii4' joiiird — i(;<'iil*« ««tntoin«>iit«i— lM<>>ii<>miiiit<'riiil, iiii«l iiuina- terinl. Defendants, to an action on a policy of insurance, pleaded (inter alia) the hreach of certain conditions of the policy, " whereby the policy was rendered void. Plaintiff joined issue. Ilchl, That on this issue, it was sut'ticient for defendants to prove the alleged breach of conditions, and that plaintiff could not show a waiver, nor was it open to him to show that at the time of making his written ap- plication for insurance, the agent of the company wrong- fully inserted in the application a statement different from that made to him by the applicant. Where defendant pleaded four pleas, two of which were an answer in law, to plaintiff's action, and he was non- suited. Held, on motion to set aside the non-suit, that he was not entitled to have finding of the jury on the other issues — they being immaterial. Martin v. Mutual Fire Ins. Co. 3 Piui. 157. 4.i-Poliry — <'oii<1ilioiiM — i:ntir<> contract — False •iwi'miiiK- n^ to part ol |>i'0|»ci'ty iiifmire*!. hi a policy of insurance on buildings and merchandise, one of the conditions of the policy declared that if there should be any fraud, overcharge or false swearing, the claimant should forfeit all claim under the policy ; Held, That the contract was entire, and that if plaintiff was guilty of false swearing in reference to the goods, he could not recover any part of the insurance. Cashniaii v. Lonlon 'imf Liverpool Fire Ins. Co., 5 All. 216. 16-Proliiiiiiiary proof— Di««|>oiiNiii^: witli— :\'o waiver of ohjcciioii. The mere fact that defendants did not require further preliminary proof as they might under the policy have done will not prevent them availing themselves of the ob- jection that there had been false swearing. Ibid. / 752 INSURANCE. 47— D4>U>ii4l»iir«> .\^4>lll Kiviiitf <'vi4l4'iMM> US lo oriKin of llri*— Wjilv«'r -l\o |>r4>(MMl4*iit - Av4>riii<>iii«« rioadiiiK vkiiiv«>i- -K4>(li-«>>»^ iiii«l4'r <'oiiiiiioii l^iiw l*MM>tMliin> A4't— liiipi'0|»«'r roiKliit't ol iii«tiii-4.>«l. In an action on a pohcy of insurance, the declaration, afti r s ttmg out policy and conditions, alleged {inter (ilia) that ])laintiff gave all notices, and made all proofs, and had perforLied all things on his part to be performed to cJaiin till- losi;, and did all things necessary to entitle him to recover, " and that defendants waived any notice or proof of the loss as required by the policy.'' The sixth condition of the policy was, that on the happening of any loss, the insured should forthwith give notice in writing, and within fifteen days furnish proof of the loss under oath. Tin tenth condition declared that, "if the claim be in any respect fraudulent, or if any false declaration, affidavit, oath or affirmation l)e made in support thereof," all bent- tit under the policy should be forfeited. Defendants pleaded — 1. No waiver of notice and proof of loss. 2. The documents rendered as and for the proof of loss were false and fraudulent. 8. After commencement of the lire, the plaintiffs wilfully and wrongfully prevented it from bting extinguished. The Court Jlchl, on general demm-rer. That all the pleas were good ; that as the declaration wonid be insensible if notice had been given, it was sufticieut for de- fendants to accept the issue of waiver of notice and lu-oof ; and that, however, as to the second plea, plaintiti" might have the right to apply to a judge under sec. 91 of the Common Law Procedure Act, to obtain a more explieit statement of the facts, (rihson v. .V. British >(■ McirmitHi' Im. ('«'., 3 Piiii.So. 49— lii«.iirnl»ic iiitCM'Nt— Advance** to build veswl- iio traiiMlor. Plaintiff", in 187*2, commenced supplying B. with ad- vances for building a vessel, under a verbal arrangement INSURANCE. 76a that lu- was to 8upi)ly J), to build tlie vessel, and hold her aisecuritv for his advunces. llv was to dispose of her in jhaitB, or in the whole, as he saw ])roi)rr, and when the vi:-«el was disposed of, whatever was rrmaining after he cot his pav, was to go to B. When she was well advanced, iu August. IHT-I. plaintiff eti'ected insurance on her in his own name. He. however, never had possession of the vessel, nor held any bill of sale or transfer of her. //»/'/, In an action on the policy, That plaintiff had no insurable inten-st, ard could not recover. Chnl.c y. ScnftisJi hiijriidl. b,.<. r„.,2 /'. <(■ n. '24(1. .50-<'ri'titi(-sit«> of lo«><« l»y lllil^:iM||'af(> -Kiilli4-ioii4'.v of ~ ^talciiK'iil of aiiioiiiil 4»f loMM ii<'«>(>«>««ai'y. In an action on a policy of insurance, by one condition of which the plaintiif WiiS bound to produce as part of his i)roof of loai, a "frtificate of a maj^istrate or notary public most contiguous to the place of lire, not concerned in the loss, iVc. that ho was acquainted with the character and cir- cumstances of the assured, and had made diligent inquiry into the fact set forth in his statement, and that he knew or vtrilv believed that the insured reallv and by misfor- tunt, and without fraudulent practice, had sustained by siieii tire, loss and damage to the amount therein men- tioned, it was Held, That a certiiicatc which did not state the auiouut of the loss, but only that the insured had sus- tiiinid by the fire the "total loss of his two-stor}^ framed building therein mentioned" — was not a sutHcient com- pliance with the condition, and that the setting forth of the amount of the loss in the certificate was a condition precedent to the right to recover. Borden v. Pnnincial Ins, (V, 2/'. ,(■ ]i. 3H1. 31 - Foreign lii<>«iiraii«*(> (Joiiipaiiy — C'oiii|»lotioii of policy— A{j;<>ii«;y in .liow Bi-iiiiMWU-k— lll«>^ality. A policy of insurance, issued in New York and de- livered in Boston to a broker, by whom it was sent to St. John, to his agent, and by him. handed to the defendants, who gave in return a premium note was held not to have been complete, until actually delivered, and the transac- "i 754 INSURANCE. tion was illegal under Act of Assembly 19 Vic, cap. 45. which prohibits any foreign insurance company from doing business in the Province without first filing a certiticate in the Provincial Secretary's office. Allison v. Ildhcrtsmi, 2 Png. 103. 93— Foreii^ii liiMiiraiK'o Company— 4 'al■l'yill^: on biisi. ■I(!MS ill Pl'OVillC4S A. held himself out as the agent in St. John of the Columbian Insurance Company, whose head office was in New York. His course of business was to receive appli- cations for insurance addressed to the company, which he would forward to B., an insurance broker in Boston. The latter would send the application to the company, when, if it was accepted, a policy would be delivered to him, and the premium charged against him at the time. The policy was then forwarded by B. to A., who would de- liver it to the assured, taking the premium note direct to himself, and sending to B. bis own note for nine-tenths of the amount, (the balance being kept for commissions.) Hdd, That this was an indirect carrying on of insurance business in this Province by the company, contrary to the Act 01 Assembly 10 Vic. cap 45, and that a premium note given to A. could not be collected ; and also that the fact of the note being made to A., in no way distinguished this case from Allison v. Robinson. Jones v. Tai/lor, ll'' Oultnn, 2 Pmf. 891. Wari'aiitioN— t'oiMlitioii tliat all mt>iilM ioiitniii(' \vai'raiiii(><« on the pai-l ol tli<> a^tsurcd— Verbal a^rociiK'nt 4'aiinot altf'i'. .Set' Evidence V. 10. Dinyec v. A(jricultiiralln>i. Co. liOss of ve«$4Cl— Fi'4»l»al>ility ol lo«s— PresHinptivr rvid- <>n<'e. See Evidence VI. 20. Ponuircs v. Minas Ins. C". liiMii'iible interest— fiiiilflcicney of. See Insolvent Act 27. Parlee v. Agricultural Jn'<. (',>. Wlisrepreseiitalion a!.- to valuation — Abaiidoniin'in and acceptance of— Pleadinift See Pleading II. 27. Lloyd v. Vnion Ins. Co. INSURANCE BROKER. •55 Coiiiinon CHi'i'iei'K— l.iial»ility of, to injure Kood«i. See Contract. Mvdohliick v. Eastern Express C<>. DepoMit ol Policy of liiMiiniiice — iflortgaK*' litflit— Eqiiiliible 4!laliii. Sir Equity 3. Action oil Policy—rii'o liisiiraiict'— liitorest— ('oiidi- tioiiM— Pi'<>lliiiiiiHi'y Proof— PI<>Hi'ui«'iit*« -Waiv«*r. .S« Pleading I. ;}7. A•>•ti^lllll4>llt of Poli4>y — <'on*>ii(l4>i'atioii to »«ii|»port liroiiiiNL' l>y liiwHi'4>i- to A«»»ti|fii<'<'. Sec Pleading I. 81). Dclipiief' - D<>|»o!ilt of oiili'ai'y t4» Pi'ovi*«o«iit ground than want of pi-<>liiiiiiiary proof— ll'aivcr. See Waiver. ^oalort'oiiipaiiy \vli«>ii not iK'f'f'wwary— Pr<>*<«id(>iit and N'cr<'lai',v — Frinia Fa4'i<> <>vld«'ii(M' of appoint- iiieiit. Ser Evidence VI. ~). l.liMil :itA:\<'E BliOKEK. Action Ity-KoiiiMuranc*^- .floiK'y paid — Kvidoncr. Policies of insurance effected by a broker, declared that preliminary proof and evidence of the loss were to be given to the broker, and payment of losses to be made within sixty days thereafter. The practice of the broker was to receive the premiums in money or notes, crediting the underwriters with the amount, whether actually paid or not, the assured being liable to him alone for the premium. Proofs of lories were furnished to the broker from time to time, and on being satisfied of their correct- ness, he paid the amounts, and the policies were cancelled. Half-yearly accounts were furnished by the broker to the underwriter, containing full particulars i ' all the risks, premiums, losses and charges, to which he made no objec- tion until the accounts were rendered shewing the balance ^^Ul^^MM % 75G INTEREST. claimed in this action. Ilrhl, in an action against the underwriter to recover the amount paid by the broker for losses, That the jury were warranted in inferring that the defendant had authorized the broker to decide unon the proof of loss in each case, and had assented to his decision. Held also, That the plaintiff could recover from the defendant the amount of premium of a re-iiisuvance effected for him without proof of actual payment to the underwriter. lianucy v. (rrciii)ri/, 1 Tlan. 1.5"2. II\TEKE««T. <'ov4>iiaiit to |»siy (oi iiiiprovoiiMMitM— l*lsiiiifii| ciitiiicd to iiit<>i'(>*»t oil aiiioiiiil a|»|»i'iM'4l.. Scr Landlord and Tenant \l. 2. I Interest is not recoverable in the natuiv of damages in an action for money had and received, l)rou^'ht to recover an amount of duty illegally exacted at the Treasury. Ilninmond v. liobiiixoii, 1 Kerr 21)5. •2 Interest cannot be recovered on a bond given to secun till- [)ayment of instalments of stock in a Joint Stock Company, under the Act o Wm. IV, ca}i. 48, though the bond is in a penal sum conditioned to secure tlie pay- ment of a lesser sum at a certain day. Si. John Ur'uhji C(im)>iuni V. \]'(iit(iir(trM«ii%'4> Ciaiiii lVIoi'tK»K4' Payiiioiit - illoitgaRor all4>\V4>d illt4>l'4>Kt. See Mortgage 14. INTEREOGATORIES. 757 tt oiilillctt .V- WlH'll iiliHl JlKlKIIK'Ht 4l«>l»yf>«1. The plaintiffs obtained a verdict which was set aside and a new trial ordered. The decision was then appealed from to the Trivy Council, who allowed the appeal. The iilaintiffs having applied for interest since the verdict under the 12 \'ic. cap. 89, sec. 2d (Consol. Stat. ^ap. 37, sec. 120^ till' application was refused. McKny v. (">>iii- iiiciriiil B(iiil,\ '1 I'll!/. 324. n In an action on the case for unliquidated damages, the jury included interest in the verdict. I hi, J, on an application for allowance of interest from time of vii'dict to jud^^nient, that interest was improperly included and tile application was refused. Burpee v. ('(irril, 3 I'liii. '235. : Interest on judgment against principal not allowed on entering up judgment against bail. See Bail ;!S. Bfinin v. Fhiini. n In an action of trover the Court will not allow niterest on the verdict where the signing of judgm-iit is . llnUicdji Ciiiii/unn/ y. ?Jiinay, 2 P. <('• 7)'. 412. Iiiti>i'(>«it from M'lsitioii^tliip. ,S'('(,' Judge. I \'l' F iU O I.O\ I A I. U.4 1 1.U .4 V. Puucr lo 4'iiK'i- oil |>iiviit«> laiHiN- <'oiilia<>tni'«. The Act 31 Vic. cap. 13, sec. 8 gives no power to per- sons who have contracted to supply sleepers to be used on the Intercolonial Railway, to enter on private lauds, with- out the owner's permission, and cut timber for the pur- pose of supplying such sleepers. JMrulHon v. Kiiifi, 2 Puy. 526. 1 1\ 'I' K K LO€ • I TORI .1 IT D«. Sec Justice of the Peace. (Summary Conviction.) I^TO\l(i\. \Vli4>ii g:i-oiiii4l for avoi«liii|; «lc«ul. Sr, Deed 1. 44. Jones v. Ctilhin. |]\TRlSIO]%. 1 If on the trial of an information for intrusion on Crown land, it appears that the Crown has been out of possession for twenty years, the defendant is entitled to a verdict on the general issue, under the Stat. 21, .Jac. 1 cap. 14. Rev v. WatHon, Ilil. T. 1828. 4 The Crown granted to the defendant the right to occupy land for twenty-one years, unless the same should be sooner required by the Crown, on notice of which the grant was to cease and be void. Held, In an information for intrusion, after notice to the defendant. and refusal to give up possession, that no inquest of otSce was necessary to terminate his right, his removal not being founded on any breach of condition or forfeiture. AV//. V. I[rhert2AnA27. 3 — Srmblc, That a notice to the defendant that the Government required the hind, signed by the Surveyor- (xeneral of Crown Land, in liis ofticial chiaucter. was sufficient, without proof of any previous authority from the Government to give the notice. By subseijueutly lay- ing out the land into lots and granting it. the Governuitnt recognized the authority of the Surveyor-General to give the notice. Iltid. 4 The right to the soil between high and low water mark in a navigable river being in the Crown, it has also the constructive possession, and may maintain trespass and intrusion against a person for erecting a building thereon : and the defendant cannot set up as a defenc* the public right of navigation over the place, his building not having been placed there in the exercise of any such right, lirti. v. Taylor, Ilil. T. 1862. JOINT INDICTMENT. 759 n Qmerc, Whether damages can he recovered, un- kss they are alleged in the information. Ibid. Evidonre oi title liaviiiK veMtcd in tPic €ro\vn. .s'(( Evidence II. 38. Retina v. SuUiroii. IKRE Accretion. Kc$nii>*'i**"'^ rc>»i»octiiiK: «'atti<> on i»>iand. .s'(v Statute. ISSI'E (XO PLEA.) ,sVr Practice YII. Of writ. 5<. Sec Scire Facias. Eiititliiijijr iiotict' of trial, \vlicr<> one only sei'ved. Sec Practice IX. 14. .IOI!\DER or PARTI E!Si. Src Action at Lan' XIII. or Counts. .Sec Pleadmg IV. JOIMT EIABILITV. .V'' Contract 9. All not served u itii |>roce!i>)!>. Scr Practice VII. 8.— Practice IV. 5, 0. Iiifsiiit not served— .Indvnient t^eire faeiais. Sec Infant (5. .lOINT I!VDlCJTltIEl%T. ■^'''' Criminal Law. ^m^m 760 JOINT STOCK COMPANY. ^fff m JOI.\T 'rE.\4\C'l. (Joiivryancc of land. by ^raiitoi' to liiiii|| aiut otlM-is. See Deed I. 26 f'littiiiK^ tiiiilM'i— Ouii<'i>«lii|>. If one joint owner of land cuts timlter on it aviverselv to his co-tenant, they become joint owners of the timber. The wrongful !u-; of cutting does not divest the tenant of his interest in the i)roperty. Godurd v. Tnch, \\ Ml. 370. The law of State of ]\Iaine, relating to waste comniitted by one joint owner of land, considered. Had. .IOI!\T TltKSP.4«fi^ II. \), 10. Sc>|>sir:il<> si«'i VI»stiiiif. Hcc do. II. «, I'i, 13, 25. Joint i'oiiv4>i'si<>ii. See Trover 24. .lOI.XT MT4M K <'O^II'4\V. See Assessment — Corporation. 1— Call!>i~La|>«t4' of tiiiir -Iiistaliii4'iit«>. The Act 5 Wm. IV, cap. 48, incorporating the St. I'lhn Ih'idgo (j)mpany, reipiired thirty days' notice to be .i;ivtn of the calls for the payment of each instalment ot tlu capital stock, and that no greater amount than ten i-r cent, should be called in at any one time, lidd (Chiiirnan. C. J., dia.scntirnfe), That the full time of thirty days must elapse between the time appointed for the payment of eac'i instalment, and that it was not sufficient, in one nuti'^ call for payment of several instalments at interval;' o: -: than thirty days. Held also {per totam rnri.int), fi" though one call could not be enforced for want of siifticient notice, it did not vitiate other calls in the same notice where the full time was given. St. John Bridje ('". v. Wood ir (I id, 1 Kevr 29. *2— Kij^lit to siti^ for call*»- lly-Laws. An Act incorporating a Joint Stock Company, (lirected that the stock should be divided into two hundred shares I ■M^^iUM ^T) JOINT STOCK COMPANY. 7r,i , dirtctel k1 Bharcs f to be secured in such manner as the by-laws of the Com- pany should direct, and should be paid in such sums, and at such times as the Directors should appoint. Held, That it was not essential to the right of the Company to sue for calls of stock, that by-laws for securing tlie same should be made, provided the Directors who made the calls Were duly appointed. Portland und LancnsUv Steam l-Wni C". \. Pratt, 2 .]//. 17. :{-\oti«'<'— !N'«'W«|»a|M'r— Time. The Act ot Incorporation recjuired the tirut meeting of the Company to be called by A., by giving notice in one or more of the newspapers published in St. John, " for not less than three consecutive weeks immediately before the (lay appointed." Held — 1st. That a newspaper containing sucii a notice, and having the name of A. thereto, was evidence of the notice, and that A. ha\ ig attended the meeting, it would be presumed that the notice was pub- lished by his authority ; 2nd. That it was not necessary that three weeks should elapse between the publication of the iivst notice and the day of meeting ; but that a publica- tion in the newspaper for three consecutive weeks was suffi- cient; 8rd. That it would not be presumed that the news- paper was published more than once a week — that fact (if material) should have been shewn affirraatively. P/id. l-Aiiiiiial Meotini; hold(>i-<«. Election— Pi-<'<<««'ii4-4' of *»tock- \Vheio an Act of Incorporation required that an annual meeting for the choice of Directors should be held at such time " as by the laws and regulations of the corporation sliould be appointed," an election made at a meeting held under an order of the Directors, at which meeting all the stockholders were not present, is invalid. The law regu- lating the annual meeting should be made by the stock- holders, and not by the Directors merely. Semble, That in the absence of any by-law on the subject, an election at a meeting so called, at which all the stockholders were pre- sent, and voted, would not be void. Ihid. 48 • ■ ■ '*y^»^'- :|' 762 JOINT STUCK COMPANY. Slit A person named in the act of incorporation and iii the list of subscribers, who never authorized his name to be nsed. or held any shares in the Company, ceases to be a me.:, her thereof after the first meeting to organize tlio Company, and '<] therefore not disqualified as a juror in au action brought by them. Jhiiiiedi!il Act. The plaintift's were incorporated by Provincial Act, 27 Yic, cap. 43, for the purpose of constructing a railway from St. John to the boundary of the United States— the capital stock to be two millions of dollars, and the Com- pany to proceed to locate and complete the road as soon as $50,000 of the stock were paid in. The Directors were authorized to make equal assessments on the shares from time to time, as they might deem necessary, to be paid to the Treasurer, and in case any subscriber for stock neglect- ed to pay the assessment on his shares for thirty days after notice, the Directors might order his shares to be sold at auction, and in case of any deficiency, he should be accountable to the Company for the balance. By Act 32 m-l ^If .,; JOINT STOCK COMl'ANV. 768 Vic. cap. oi, to amend t)ie act of incorporation, after re- citing that it was doubtful wliether the subscribers for shiiies wt-re legally liable to pay assessments unless the wliole amount of the capital stock has been subscribed for, and the !?.')0,000 paid in, and also, whether the notices of asstssiiients had been given in accordance witli the act of incorporation, — it was enacted, 1. That the subscribers for stock should be liable in the same manner and to the smut extent as if the whole capital stock had been fully subBcrihed, and as if the $50,000 had been paid in, in the manner directed by the act of incorporation, and as if all a'^casments on the shares and the notices given thereof, had heen made and given according to the said act. 2. That to entitle the Company to recover against any stock- holder, two months' notice of the assessment should be published in a newspaper, and after the expiration of that time, the Company should be entitled " to sue for, recover, and receive from any stockholder the amount due for un- paid subscribed stock ill the same manner as if the calls for assessment had been regularly made "" in accordance with the requirements of the act of incorporation. Ifehl, 1. That the Act 32 Vic. cap. 54, was not ultra rircs, under the "British North America Act, 18G7," sec. 92, sub-section 10; 'ind. (per Ritchie, C. J., Allen and Weldon, -1. .1., Fisher, .]., duhUaiitc) That an action of debt could not be maintained under the Act of Incorporation, for the assess- ments on stock : but that the proceeding by sale of the shares must be ado])ted ; 3rd. (Fishur, J., disscntientc) That the preamble of the Act 32 Vic. cap. 54, shewed that the object of the Legislature was, not to alter the remedy given by the Act of Incorporation for the recovery of assess- ments, but to remove other difficulties ; and that the words of section 2 did not give the Company a right to sue for assessments. I'jinopcan and North American liailivay Co. V. Thomas, 1 Piuj. 42. ft-^torklioldeiM of Bank— Liability. The stockholders of the Westmorland Bank, by their ^-barter, in addition to the liability of tlie stock held by ■?'-f! 764 JOINT STOCK COMPANY. them for paympnt of the dehts of tlie bank, ar<' lial>le in their private and individual capacity for an amount (.qual lo the sum of their stock. McKeuzic, Cnrato, >>/ WcstiiKu-. land Bauh v. Whirell, 1 Hn)i. 503. 10— Excciitoi-K iiivvNtiiiK in Bunk ^itork in thcii- own naniCK— liiability— K4>Ki*tioi-. The executors of the estate of C. invested a portion of its funds in bank stock in their own names, hut for the benefit of the estate, by which the dividends were receivd. After their death their representative, by writing, agretfl to transfer the stock to the widow of C, who had taken miu letters of administration cum tcstdmcnto annexo d- bonis /"ni. The stock certificates were handed over to her and ■•iif afterwards received the dividends, but no transfer Wiis made on the books of the bank as required by its ciiard r and by-laws. The bank suspended, iind che estates of the executors were placed by the Judge on the list of cni- tributories for the stock standing in their names on tlu- register. Held, That they heing prima facie legally liail'. the Judge was right in not altering the r<>^'ister hy sub- stituting the party equitably entitled totu; to k 7" > President, d-c, ]]'estm()rhind Bank ; — Kr parte AIUkoh. 1 Han. 506. 11— Ju--^i|;;naturc oi Jnd^e. A Judge at Nisi Prim is bound to take judical notice of Ui JOINT STOCK COMPANY. 705 ifir nun thr siijiiatKiv of ;inotlier JaX'^e of the Court, to an order mule uiult-r the Wiudius-up Act. Ih'ul. Il-T»kinu I*i'oiiii«*««4»i'y Note fi-oiii Mlorklioldvi* f'oi* j|HM*'<««llieilt. A Joint Stock Company may take a promissory note from a stockholder for an amount due by him on an aasess- miiit on his stock, — there being nothing in the act of in- coiporatiou to prohibit it. St. Stephrn's r'nndi IiKiltvii/ f, .V. Bind. '2 llan. 1:57. |.*i l*i'ovixi4»ii«> lor U!>«M!!SMiii(>iil of 4lsiiiiii;;<>|»oiiit- iiioni orai'l»iti'atoi'M-Pi-o4*<'«liiro to%VHi*«l!!> a4- niMil— AKciit— Kciil— UiKl>t>> of |»ai'tiCM l^cfsMtM* for j<'!ir«»— Owii«'r<«*. Th. All'trt Afining Company Act, (15 Vic. cap. 87, sec. s,i declared that if the Company deemed it necessary to enter on the private property of any person for the purpose of carrying on their mining operations, they should allow the owners of such land such compensation by way of rent or otherwise, as might be agreed on, for the damages such owner might sustain by reason thereof, and if they should not be alile to agree with the owners of the soil as to the amount of compensation, then the amount should be de- termined by three arbitrators, one to be chosen by the Company and one by the owner of the land, which arbitra- tors should choose a third ; and if the owner of the land should decline making such agreement, or appointing an arbitrator, then the Company should make application to the Supreme Court or a Judge, stating the grounds of such iipphcatiou. and such Court or Judge was thereby required from time to time on such application to issue a writ to the Sheriff of the County, commanding him to summon a jury to assess the sum of money or annual rent to be paid as compensation to the owner of the land. Hehl, 1. That in Older to justify the issuing of a writ, it must be shewn to tlie Judge by legal evidence, that an application for an af^reement and arbitration had been made by the Company to the owner of the land and declined ; and that an atttdavit of such an application sworn before a British Consul in a foreign country, was not legal evidence. 2. That the lij-. wmm\ 1 ■ •iJ,' 70l> J 11 )(.!•: authority of an agent dI tlio Conii)any to make tlu a"iee- mont with tlio owner of the hind and appoint an arbitrator need not I under the Company's seal. '}. Tiiat the word " owner" applied to a lessee for yearn of the land. 1. Tlmt the jury in assessing the damage, might eithtr award a sum in gross or an annual rent. 5. That if the prohiuin. ary notices to the owner of the land were proved, tht writ might issue without o summons to the owner to shew cause. K.f purtc The .Illicit Miniini iUntipamj, W All. ;}'.). The 10th section of the act declared that nothing; in tin i.,ct contained should interfere with the riglits of tht- respi c- tive i)arties between whom suits were pending for anytliiii;' which had happened or been committed befme the passing' of the act. Held. That an owner of land who liad a suit l)euding for treepass by mining operations on iiis land at the passing of the a^t, was not thereby excluded from the operations of the 8tii section. Ihid. Aiillioritj' to 4-iit «lo\vii HiMM't. See iiailway Company. Koiitli Buy Booiii€Joiii|iuiiy— Kitfht to rP4;4>iv(' booinner. »S(?t' Boom age. Ke«|iiif>iit4' iioti«-4' ol' aK<«(>K*»iii«>iit to 4>iifi(lt> suit to be broii^:lit. Sec Assessment, 21. K. i( N. A. Uailuunj Co. v. Dunn. JUDOE. I. Reviewing Decision of. II. PoA\ BR AT Chambers. III. 13I^;0RETI0NARY PoWER AT TrIAL. IV. Certificate of Judge. V. Miscellaneous. I. Eeviewing Decision of. {Sec Trial.) 1 The Court will not review the decision of a Judge refusing an amendment at nisi prius, unless satisliea that injustice has deen done by his refusal. Sec McAllht^r V. Day, 4 All. 37. JUDGE. II. 767 I'oWKIt AT CfIAMIIRUS. ,j — A .ludge at Clhambers has power to pjrant I'urther time to plead in abatomont. Str Udhh v. Ifntinnoiol, 3 AV)rt;;{i. 3_- -Wlici'C iliunagcs wtro assessed Ijy Judge ai Chiunbcrs in a default cause on an insut'ticient affidavit as to some items, the Court reduced tlie assessment to amount warranted Ijy allidavit. Sntnlhir v. WrhJi, 1 Krvr ,V2t». riMiliiiiiiilion of wi'il— .4i'riiioiiiii-y poxter a«* to iT4-o|itioii of <>vi*^ at li'iiil. -S'-' Evidence VI 1 1 — Nisi J'rinn — Trial. Poui'r lo |>n'V4>iit <'oiiiim4'I a4lilf«>K<^iiiK .liirj'. . .S'.r Trial. Po\v<>r ill .Iii4lp;r to iiiiik«' siii oi'«l<'f foi* fiili 4>o*>r<<» to pliiiiitiH \vli4>ii v<'rdi4*l t'oi* l4'«>!^ tiinii sum itltort'd. Sn' Judgment II. 10. iiut\iv has no |»oAV«>r to l plaiiitifi t4» n'|>ly to ploa at trial. See Ileplevin 12. IV. Cl-mTIFICATK OF Jt'DGE. i-Piiinlity of 4l«M'iwioii. When a Judge having a discretionary power, grants an order to the plaintiff' on the trial of a cause for full costs, his decision is final. /S7«/7.-.s v. MnlroJm, 3 Kerr 581. •t-Tiiiio-Appliratioii. An application to the Judge who tried the cause for a certificate to deprive an acquitted defendant of costs u)jder aSkMitt^ p ■ ^'i 768 JUDGE'S OEDERS. ii ■ Act of Assembly 7 V/m. IV. cap. 14, sec. 24, is not too late if made before the judgment is signed, tbough nearly two months after the verdict. Crane v. Cuiianl, 8 Knr 117. 6 When a trespass is committed under a claim of tide, or with the intent to oust the plaintift' from the \m- session of the land, the Judge may certify under the Statute 22 and 23 Chas. II., cap. 9, to entitle the plaintiff to full costs. Morrhdit v. McAlpin, 2 Kiir 30. Statute 43 Eliz. cap. G, in force in this Pro^ince. Sec British Statutes. Fnro on Entry of 4 'huso. Srr ])or V. Christopher, 2 All 420. 7— 4':«nnot he made ii i-iilt* of Coiii-t. A Judge's certificate that there was no reasoniilde cause for bringing action in Supreme Court, cannot be made a rule of Court. 1 lor tier v. Croohshanh, 4 All. 375. V. ^IrSCELLANEOUS. Relation<^lii|» Dif^tqcsalifioation. A remote relationship of a Judge to one of the parties to a suit does not disqualify him from hearing the cause. Coiton V. Stael;, 3 Vikj. 424. .It uii:'S KOTKS. See Evidence VII. 7. .11 l)Ciir<>i OKI>F.RK. A|»E>li4-a1ioii to r4*iM><' of (l(Ti'iikll4»l4l<>l'. .S (' Joint Stociv Comi)iiny 11 and 12. Finality of oi'4i4M' ^l■alllili^: i4>av4> t4> a|i|»4>ai. .S" J'ractice \ . o n, 1%4'rr^xity i*i' i'4>N4*iii4lliii^ .ln4l{j|:4'N 4»i'4i4'r for 4li«»f Joint 4l4'l»t4»i- li4'f4»i-4' iM*«niiiK 4'\4>4>ntioiii See Execution IV. 10. JUDGE'S ORDERS. 769 )vmce. .SVf lialiilily •*" Order lor 4li««chai-{;(> of «l<>bloi'. I'vdiluctioii of an ordtr of Judc,'e of County Court, vali'l on ita face, a sufficient justification to Sherift'. See Eseai'f i. InMitlicit'iit iiltiiiavit for order to lioljii«l JikI^o'm order — FrevioiiM appli- calioii iM'iidiiiK^ on other matter. ,s',. An-fst 10. I Jiulb'e -.^ioii FriiiK— Order for trial of eaiiMes—Aiitii- oi'ity to make— <'oiiii«>ier*4 Duty. A Judge at A'/-s/ Priux has authority to make such order at the time of trial of the causes as to him may sef-m requisite for the effectual despatch of the business of the Court, and it is the duty of the Attorney and Counsel in a cause to attend until the case is disposed of. It is no pound for -netting aside a verdict on the score of irregu- larity that a cause has been tried out of its order in eiiiisequence of several causes standing on the docket liifore it having been put oil" by consent to a future day. ]liiir.:i V. Siith('rLi)i(l, 2 Kerr 1. .Iiidut' lia<<> HO po\«'er on trial in repl<'viii to i-ompei l>l!iiiiliir to re|>ly to plea addeil. Srr liepleviii VI. '2 Onici- pnintin^: leave to pier and demur and di- rortiiiw; i««Nue in law to ■»<' tried tIrMt —Wiietlierean be made e\ parte. A Judge at Chambers made an <:r jKtrfc order allowing dtfendiint to plead and demur to declaration, and directing tliat tlu- issue in law should be Jirst disposed of. On applica- tion being made to the Court to rescind this order. Tfchl, per Allen, C. J., and Dufif. J., That that portion of the order which directed that the issue in law should be first dis[)osed of, should uot iiave been granted without a summons ; but that a judge might in many instances where the case was dear, niaki- an order r.c purtr for leave to plead and demur, «nd his doing so or not should be governed by the circum- stances of each case. Hut per Wetmore, J., that no portion of the order should have been made without giving ■■iMiUMiBi 770 JUDICIAL NOTICE. the other side an opportunity of being heard. W.Moii, J. was of oi)inion that the whole order was rightlv ma'le -r jyartc. Bell v. Mojnit, 2 P. <(■ li. 151. 3~Altacliinciit— .liiil^c^ order for— Filing;. It is not necessary that the Judge's order for attacli- ment should he tiled l)>fore attachment issues. Cnlarllx. llohrrfsoii, 1 /'. ,(• ]'>. J SI. Koii-i-(>>N oi"*«i»ily of ol>i:iiiiiii^'. Sec Practice VI. 41). Mitchell v, Lmcther. 4- l]\ |»sii'l4> oi-(l(>i'— ^4>ttiiiK siMitlo ol. Where a Judge makes an ex parte order, an application should be made to him to set it aside before applying to the Court. Jiirvin v. Jiidns, 8 Pii/j. 327. ,/| II is jiot necessary to serve a Judge's order and demand costs before moving to make it a rule of Cmul Bell V. MoflUt, 2 P. ,(• ;;. 406. 6— AttSK'liiiK'iit— Ki'ttiiiK^ :i««i«l4* of oi'4l<>r. Whore attachment was issued during the progress of a cause, on the order of a Judge. Held, That tlu' Judge's order must be rescinded before the attachment could be set aside. McLellnn v. Milmore, 1 P. lO B. 291. 7 Kiiti'y ol «'siiiM% or(l4>r— Ktiiliit4^ of liiniiii* tiOIIM. e A writ was issued in this cause in May, 1872, returnabl in the following Trinity Term. The process was issuoil in order to save the Statute of Limitations, and was returned mill eat. About the 6th of August then next, the writ was filed with the clerk, but no entry docket was tiled. At a subsequent stage in the cause the plaintiff obtained from a Judge at Chambers, an order t'or leave to tile the entry docket as of Trinity Term, 1872, A motion being made to the Court to set aside this order, the application wns refused. Tai/lor v. dennv, 2 /*«//. 864. .lUDIi'lAL A< T§. See University of New BrunswicK — Commissiontrs. .ri'DIC'IAI. I%OTIC'E. 1— Pluco. The Court cannot take judicial notice that a vessel i^i^wU JUDICIAL NOTICE. 771 Iviiiff "near the mouth of liichibucto Harbor" is in the County of ]\ent. I>esBnH((y v. The Comininnioiicrs oj the K. ,\ S. A. lidiliniy, 1 Han. 48. •2 — It will not be judicially intended that a deed inirportinj,' to have been made at Birmingham, was made at Jjiimingliam, England. ILislncI, v. Mr Master, ('. Ms. 4. ;{— It cannot be judicially noticed that an Hob4 is a place for selling liquors. Sec Justice of the Peace lY. 15. I -IVl'MMI. The Court cannot take judicial notice that the person who signs a certificate of registry, endorsed upon a deed, WHS not tlio Registrar at the time the deed was recorded : iiiul in tlio absence of any such proof, it must be presumed that the liegistrar rightly certified. A certificate dated in lsi'i6, stated that the deed had been registered the 'iOth Apiil, f880. Qiuerc, Whether the certificate should not have been made at the time the deed was registered. Doe ml thr ilriiiii^r itf llohinson v. Clidsseij, 1 I Ian. 50. ■^ Where the certificate of proof of the execution of a deed was subscribed " Geo. J). Ludlow,'" without any (Kseription of his official chfvacter, either contained in the ctrtificate, or annexed to the signature. Held, (per Chip- man, C. J. and Parker, J., Carter, J.,disseiitieiitr,) That the Court should take judicial notice that a person named (i(!o. 1'. Ludlow was Chief Justice of the Provmce at the time the ilied appeared to have been executed. Ji'atson v. //-(//, :] Knr 559. t> Oidoi- of .liKlK^c iiiKltM' Wiu«liiiK:*u|» Act. AJiulge at n'tni jiriii-s is bound to take judicial notice of til-' si),Miature of another Judge of the Court. MeKen:i>-, '''"■"^"•, >(■<:, V. Scovil, 2 If'ui. «). ^ Jiiiimiioiit Roll. V""''"'', Wliether the Court could judicially notire an en- dorsement on a judgment roll of a rule setting aside the jiitigment. Sec Ullsn,, v. Aitdreirs, 1 All. 715. •"••blM- I'iiw— Authority to i(>|>Hir Ktr«'<'t«. ■^'''<' Pleading I, 02. 772 JUDGMENT. ti — rVotf i»ayal»l«> in IIONtoii. The court will not take judicial notice that a note pav- able in Boston is payable in the United States, ('imhiuiiv (inrih'/i, () All. O'M. .11 IXftllR.M'. I. CrKNKUATiLY. II. Ol'TKIt TO SUFKEll JllXIMKNT l!Y DEFACI.T. III. -TuiXiMKNT (FoitKKiX.) I\'. -luiunrKNT AS IS C.VSH OI' XON-sni'. \. Jl'IXiMKNT i;v Dkkaui/i'. I. (TENKIiAriLY. PliiiiititfN i-<>iiie4lv on, not lo*«t by |»i■o<■4'<'4iill^; a^aiiisi Mliei'ift. .SV<' 1 •ischargc 2. I -^:iii*>t:i,(>tioii 4»f— Wlisit iinioiintf^ to. Whei'f the defendant, after judgment, endorsed a nott- of a tliird party to the plaintiff, to be collected by liim, and the proceeds applied in payment of the judgment, accom- panied also by a retpiest that the plaintiff would carrv on the suit against such tliird party in his own name; and on the plaintiff's suing such third party, the suit was settled between them by the plaintiff receiving a sum of money on account, and taking a new note in his own name for the balance, of which he informed the defendant. Hdil, That tliis was a satisfaction of the original judgniuut. Scnu'li V. Bvrjicc, 8 Kerr 3(33. •J — Miis|><>iiMi4»ii ot I't'iiiedy on - - Takinu iie^otiiii>l<> not«'. Where a negotiable note is given as collateral security for a debt secured by a judgment on a warrant of attoiiuy, the remedy on the judgment is suspended until the mat- urity of the note ; and where the creditor had transfcnxd the note, and it had ))een mislaid, the execution on tic judgment was suspended until the defendant was indemu- tied against his liability on the note. Ilnvdy v. Price, 'A All. 2()4. ;i— l.>i4Mi. A judgment is not such a lion on land as to prevent JUDGMENT. t (' It; av'siiiist [he judgment debtor from conveying the legal estate and seisin to a third person. {Sec Act 8 Geo. IV. cap. 87.) jhu'dem. i'eahodii v. McKnifihf, Bcr. 37<). l-Kllf'OITillK^ jll«lKIHCIlt— KOMUI't to (>4|llit.V. A, jufl,i,'ment creditor cannot file a bill in e(|uity to tn- force his judgment against the lands of his debtor, until he lias taken all necessary proceedings to enforce his judg- ment at law, and is unable there to obtain the relief to which he is entitled. JUack v. TLci'ii, Ifil. T. 1871. .')-<^iibM*(iii«'iit crcMlitor— KiKlitM— .\o fi'siiid. A subsequent judgment creditor of the defendant has no right to complain of an irregularity in the plaintitfs jiulgment, as that it was signed too soon. It is only in case of fraud that a subsequent ciouitor can apply to set aside juilgment. Itohinson v. N. B. ami Cdiuida Railiciiij (Hid Land Co., 5 All. 630. — C'on4litiou<»> iin|»oM«'4l. On setting aside an irregular judgment and execution, it was made a condition that defendant should not bring an action of trespass for the levy, the plaintitf's attorney having proceeded under a mistake of the practice. Flam- ni'jwShuf, C. Ms. 117. ^ liilcrior court's— Jud^iiK'nt not — rnnid. J. S., executor of the estate of H. S., gave a confession of judgment in a suit brought against him by the trustees of himself, as an absconding debtor. On an application being then made by him to a Judge of Probates for a li- cense to sell the real estate, the latter decided that the judg- ment was obtained by fraud, and refusd to grant a license. Held, That the judgment was not conclusive, and fraud being shewn, the judge rightly decided to refuse the appli- cation. Kx parte Siin}m)n, '2 Piif/. 14'2. 10 -.■iidK^iiieiit iiii|»i'o|»4'i-|y ol»t»iii4> All. 152. II— Si^^iiiii^: .iiKl^riucat— Vucutioii— C. I*. L. Act. Section 50 of C. L. P. Act of 1873, providing a vacation (line repealed,) applied as well to actions begun before as after the passing of the Act, and where a verdict in a suit commenced before the Act was rendered, after the 20th August, it was held, that the time for signing judgment did not begin to run till the 1st October. Jones v. BoU/ord, 3 Pug. 489. JUDGMENT. 775- ? rincnt oi Settintr oil .iii«lguioiit!>« of «litt'4>r<>iit notice. Sir Set-oft'. !>lottiim A«.i«>t of jIMlKIIK'Ut. Sec Practice XIII. Jiulcinoiil 4»ii lioiKl iiiid xi Hi-i'siiit of attoriicjr. See Warrant of Attorney. Kcrortl ol .jiidu^iiK'Ht— 1i^viii4'<> sim to date of bond. ,sV(' Evidence II. 18. Jiidtsiiit'iit— At'tioii on «>%-idoii4.'(> -Identity. Sec Evidence II. 29. A iiid(;iii<'iit elian^e«i the natnie of a d'cbt. Sec Set-oft 1). A iii(l|:iii('ut l».v veistitntion iin«lei- I Kev. Ktat. cap* ri6, !^e«:. 30, no bar to action. Sre Landlord and Tenant VII. 5. Coiiipclliii^ a<^eM. See costs. IX. .5 The plaintiff, by tiling an acceptance of an offer to confess judgment, signed by the defenc^ 's attorney, and taxing the costs, up to that timr, dc )t waive the objection to the want of defendant's siguatuxo to the offer; but may afterwards treat the offer as a nullity und proceed to trial Wilson Maxicdl, G All. 211). 25l), v.;' tio plaintiff' did not accept, and the defendant then pleaded to the action and gave notice of set-off", and the plaintiff recovered a verdict, (after allow- ing an amount for the defendant's set-off,^ for less than the sum tendered. Held, That the tender must be taken with reference to the state of the pleadings at the time, and, cot having been renewed afier the notice of set-off, that the plaintiff' was entitled to full costs. Miller v. Lakman, 6 All. 510. 7 Defendant in trover, about a month alter the conversion, offered to confess a judgment under the Act l^i Vic. cap. 9, for $18, which the plaintiff did not accept. On the trial, (upwards of two years afterwards,) plaintiff recovered a verdict for $19, a part— i$15.8() l)eing I'-nnd by the jury as the value of the goods, and the balance tor damages, in the nature of interest. Hrhl, That as the amount tendered was more than the value of the goods and interest up to that time, the plaintiff was only entitled to •* * ' ,UDGWENT 777 costs ny to the time of the offer, aucl that the defendant was entitled to the subseciuent costs. Behjea v. Stephenson, Mich. r. 1866. Offer to sufier judgment in suit brought under 92nd and 'MtA suctions of lusoK fiit Act of 1869. See Insolvent Act of 1869. 8. M-OfTer to Miifler JudfoiK^nt by default— Costiii. Where a plaintiff accepts an offer to suffer judgment by default under Con. Stat. cap. 37, sec. 127, he is entitled to sign judgment for the amount of the offer and the full costs. Where the offer is for a sum within the jurisdiction of the County Court, the plaintiff may shew by affidavit that the action was properly brought in the Supreme Court.. peppers V. Johnston y 1 P. iC B. 502. 9 Where a new trial is made being silent as to costs, and before second trial defendant offers to suffer judgment by default under 18 Vic. cap. 9, and the offer is accepted, plaintiff is not entitled to costs of the first trial. Ryan v. James, 2 Piu/. 219. 10 Where, after a tender of judgment under the Act 18 Vic. cap. 9, the plaintiff recovers a verdict for less than the amount offered, the judge who tried the cause has power to make an order allowing the plaintiff full costs. McLeod v. DesBrisay, 6 All. 517. See Costs IX. III. Judgment (Foreign). l-lVoi debt of record. A foreign judgment is not a debt of record, but only evidence of a debt : and the simple contract on which it is founded, is not merged in it. F^crrjus v. fVardlaw, 3 Kerr 665. i-Plcadiiig: in Bar. The judgment of the Canadian Court in a suit between the hired men and the plaintiff relative to timber, is no l>ai' to an action against the defendant for a tort commit- 49 778 JUJJGMENT. ted by him before the timber came within the jurisdiction of Canada. McMillan v. Jlifrhw, 2 All. 242. If the proceedings in a foreign Court do not operate as an estoppel, this Court may inquire into the j,'roun(]s of the judgment. Ihid. The whole of the proceedings in a suit in a loroign Court should be produced to prove the judgment. Ihhi :i— Action on— K<>al~ Proof- .1iirim«li<-iioii. No action will lie in this country on a foreign jncl"meiit if the defendants were not resident within the jurisdictidn of the foreign Courrt, and had no property or agent tlieif, and were neither served with process in the foreign coimti v, nor defended the suit; though they were served in this country with notice of the pendency of the suit, and tlic judgment may have been ol)taint'd according to the praetiie of the foreign Court in similar cases. Ci/r v. Sanj'anm, i All. 641. Tt is sufficient that the seal affixed to a foreign judg- ment is the seal used by the foreign Court, though it pur- ports on its face to be the seal of a ditierent Court iroui t.hat in which the judgment was obtained. Ihid. See Schibslnj v. Wcstcnholz ct al, 6 (J. B. Wo L. 11. 4~Authenticatioii of. The judgment of a foreign Court is not sufficiently authenticated by a copy certified to be correct by the clerk, although the clerk's signature and authority are veritied by a certificate annexed thereto under the hand of the Judge and the seal of the Court ; the copy of the judg- ment itself should be authenticated under the seal of the Court. Pool V. Hill, -2 Kerr 184. Jiidt^ment of Court of Kiiig^s Bciicli in Eii^laud- Proof ot. kee Evidence II. 17. 5— linpeacliiug: of. A foreign judgment, whether in personam or in "'", may be impeached in our Courts by extrinsic evidence shewing that the Court which Pronounced it had no juris- JOi JUDGMENT. 779 diction, or that it was obtained by fraud. Tliereforo a decree of divorce obtained in a foreign Court on a false affidavit that the party seeking it was, at the time of tlie suit, ami had been for n year preceding, ii resident of !jiicli foreign country, when in fact he was during that time a resident of this province, is void. Urijiii'i v. IVr'ufht, 1 P. ,(• />'. ^Mi'ii. IV. .11 iM^ni^.^T AS iiM <;ask or \o.\-si it. 1. Mattkus Eelating to Practice. II. Answers — Excuse — Sufficiency — Insufficiency. III. DisciiAiuiiNG Rule on Pere^iptouy Undertaking — Answers — Enlarging IIule. I. Matters Relating to Practice. l-Ciitci'tainin); ]VIotioii — roiii|»liaii<;(> witli Kiile of Court. The Court will not entertain motions for judgment as in case of non-suit unless the requisites of the rule of Hilary Term Wm. IV. have been complied with. Ilar- risv. Bcmiiont, 2 Kerr 172. U-Ueiuaii(?t. Where a cause has been entered for trial, and made a remanet, the defendant cannot move for judgment as in ease of a non-suit for a subsequent default. Emhrei' v. llitheinuj, Trin. T. 1827. i«— Where a cause has been taken down to trial and made a remanet, either by special order of the Judge or for want of time to try all the causes ^on the docket, the defendant cannot obtain judgment as in case of a non-8uit for a subsequent default. Mills v. Leach, 4 M 355. b— Where a cause has been entered for trial at one circuit and made a remanet by order of the Court— judgment as in case of a non-suit cannot be signed for not proceeding to trial at a subsequent circuit pursuant to notice. McIJA- km\ V. Masson, 2 Pug. 3. 780 JUDGMENT. t*~€iiii««> iiii|»ro|>4>iiy 4'iit<>r4>4l - I?Ia«l4> ii r4>iiiiiii<>i. A cause being improperly entered on the docket at nisi 2>riiis, the defendant's attorney should take steps to have it struck off as soon as it comes to his knowledge, otherwise he cannot move for judgment as in case of non- suit, for not proceeding to trial pursuant to notice, if the cause 1ms been made a remanet. McLclland v. Mmmn^ 2 PiKj. 50. 3— Not pi-ot'i>CMliiig to M«>eoii«l ti'inl. Where a cause has been triod, ana the verdict set aside, judgment, as in a case of a non-suit, cannot be granted for not proceeding to a second trial. Tnmer v. Cmne, Trbi. T. 1831. 4— ^ulisi'qiK^nt iiotico aftci* rciiiaiict. Where a plaintiff has once taken down his cause to the assizes, and it has been made a remanet, the defendant cannot obtain judgment as in case of a non-suit, though the plaintiff may have given a subsequent notice of trial, on which he has made default. Bennett v. Stockt'ord. 1 Ki:n 300. 5— Fi'c^li default. A cause was entered for trial at the Circuit, in 1865, and struck off, and the plaintiff' paid the costs ot the day. No notice of trial was given for the next circuit. Held, That this was a fresh default, and that the defendant was entitled to judgment as in case of a non-suit. TJwmson V. Keith, G All 509. 6— Tinu>. There is no limit of time for a defendant to move lor judgment as in a case of a non-suit, nor is a term's notice necessary where four terms have elapsed without any pro- ceedings. ScouUar v. Paijson, Trin. T. 1833. 7— Causf postponed with ai^^ient of defendant. If a j)laintift' has once taken his cause down to trial, and the trial be postponed to the next circuit with the assent of the defendant, the defendant is not entitled to judgment as in a case of a non-suit for not then proceeding to trial. Gilbert v. Dunliain 2 Kerr 361. JUDGMENT. 781 M-Two dcfendaiitN -ScttlciiK^iit with one. ^Vliere two defendants appeared by the same attorney and pleaded jointly, and afterwards one of them settled with and paid the plaintiff, tlu' other defendant cannot move for judgment as incase of a non-suit. Mi'Ghin v. t'droncr, 5 All. 103. »'Tiinl l»y i*onoi'4t-!Voti4'<' Xtiitiitc not apiklirtihlc. Where the plaintiff has given notice of trial by tlio record, but failed to bring the cause on for trial, the de- fendant canr.ot obtain judgment as in a case of a non- suit. The Statute only applies where the plaintiff could benon-auited on the trial. K(dl}j v. ('owjhhoi, 3 Kerr 104. 10 >)iiiiiiuoiiiiiK .liiry— Kiiinbi'i'. A ccmrc, to summon 12 jurors to try a cause is correct, but as the number stated is not for the officer's guide in summoning, he should summon 24. If he only summons 12, and for that reason the cause is not tried, the ijlaintiff is not liable for costs of the day, or to judgment as in case of a non-suit. Ihinn v. Brj/son, 2 .4/^,. .580. ll-M('rvic<> oi' notice A notice of motion for judgment, as in case of non- suit, must be P(>rved on the plaintiff's authority. Service on the plaintiff is insufficient. Marphy v. Cloaey ;3 .4^/. 83. II II What will be deemed a sufficient service of notice of motion, for judgment as in case of non-suit, on the plaintiff's attorney who has left the Province. See Wliadock V. Alden, 2 Kerr 172. i'i-ofl(>i' to <i' ,jii«i{jriiioiit. A rejected ott'er to suft'er judgment by default, under the Act 18 Vic. cap. 9, does not prevent the defendant from obtaining judgment as in case of a non-suit. Thoinas v. hiiiill, !] M, 407. i:i Replevin— IVot grrnntaliie in. •Tudgment as in a case of a non-suit cannot be granted in replevin. McGechan v. Ilah; 3 All. 507. ^Vhere such a judgment was inadvertently granted, the natuie of the action not having been stated, the Court set 782 JUDGMENT. it aside, notwithstanding the omission of the plaintiff's counsel to take the objection on the motion for the judg. ment. Ihbl. 14— l>4'inui'r«'i' pf'iiding:. A party is not in a condition to move for judgment, as in case of a non-suit, for not proceeding to trial pursuant to notice, where a demurrer is pending to one part of the cause of action. In such cases the motion may be for costs occasioned by not proceeding to trial pursuant to notice ; but this cannot be done in a proceeding of which fourteen days notice has been given to move for judi;nient as in case of a non-suit. Kvmonr v. Watia, 3 Kerr 800. 1.5— Vfiiuo— Aflidavil. The atiidavit to found a motion for judgment, as in case of a non-suit, for not proceeding to trial according to the practice of the €ourt, must state where the vmnc is laid. Voc V. Wnj, 2 All. 311. 16— Doiil»l<' motion— €o»tM of day. Where a motion for judgment, as in case of a non-suit, was pending, the Court discharged with costs, a motion for costs of the day for the same default. Stevens v. Hum- ilton, 1 Han. 335. 17— DcfLU't ill aflidavit. The Court refused without costs, a rule for judgment quad non-suit, for not proceeding to trial pursuant to notice. Avhere the name of the Commissioners was omitted from tiie jurat in the copy of the aihdavit stating the plaintit^'s default, served on plaintiff's attorney. Beliira V. Ilo'iiini. 2 lla)i. 2G. IP— .loiiid<'i' of iMiKue— Afli«lavit. An at'tidavit stating that issue was joined as of Michael- mas term last past is prim<( facie suthcient to support a motion tor judgment, as in case of a non-suit. Imiu']i\, Siddol, 3 Kerr 283. Ill- T(>rni*» 4>lap»>iuK< There is no arbitrary rule that two terms or two assizes should pass after issue joined in order to sustain JUDGMENT. 783 a inotiou for judgment as in case of a non-suit for not proceeding to trial, according to the practice of the Court, but the {ihiintitf is bound to proceed to trial at the first nisi prhiii held next after the term immediately succeeding that in which issue is joined, provided there is: sufticient time to give notice of trial. [S^c next cases.) Sprarfiie v. ]I„nhrn-s, Ihr. 48a. •iO A. plaintiff is bound to tr\' Ins cause at the first Circuit after issue joined, unless issue be joined of tbe tonii immediateh" preceding. SmnurJ v. McAndreu's, Ikr. -lib. 'it Where issue is joined in vacation, it refers to the next subsequent and not the preceding term, although jdiued a? of the preceding term ; in such case therefore judgment as in case of a non-suit cannot be moved for until two terms have elapse I after issue joined. McDomild V. lljidcr, 2 Kor 645. 'i'i Where issue is joined in vacation, two subse- (|Ui lit terms must elapse l)efore judgment, as in case of a non-suit lor not proceeding to trial pursuant to the practice of the Court, can be obtained. McClchm v. McCldan, 3 Km -m. a!{ After a review of all the cases — Held, That where two circuits or sittings have passed after issue joined, at either of which the plaintiff might have tried the cause, the defendant may move for judgmet as in case of a non-suit for not proceeding to trial according to the pmetice of the Court. O/'/vr v. Camphdl, Mil. T. 1871. ^1 Limit of time Un- iii4»tioii -ToriiiS iiuti(>«s There is no limit of time for a defendont to move for ,iiuli,'niint as in case of a non-suit ; nor is a term's notice necissarv where four terms have elapsed without any pro- c'teilings. Scnidliir v. L'mimn, Trin. T. 1838. 'i4-Elltl> of CHIIO'V. ■Tudgnient as in case of a non-suit cannot be signed unless the cause has been duly ( nterod by the plaintiff in the Clerk's office. Milln- v. ]reLdon, 1 Ilan. 370. See '■utry of Cause. Oidton v. }[Hn('r. 784 JUlXiMENT. 26— i?lol ion — E iitvy. A motion for judgment absolute as in case of a non- suit, for not proceeding to trial pursuant to a peremptory undertaking, should not be entered on the motion paper ; and if this course be adopted, the costs occasioned thereby will not be allowed. (yiUgan v. llohiitsou, 3 Kirr 224. 37— Psii'ticiilars bciiiK demanded. After notice of trial given, the defendant's attorney demanded the particulars of the plaintiffs claim. None were given, and the plaintiff taking no further steps, a motion for judgment as in case of a non-suit for not pro- ceeding to trial was refused. The demand of particulars being a complete stay of proceedings by Act of Assembly. O'Brien v. Tate, 2 Piuf. 4. 28 Fourteen days' notice of motion must be given and cause entered on motion paper. Jiuiu's v. McLeod, i P. d- B. 300. Costs on Motion. Sex Costs V. II. Answers — Exci sk. ■— l^iilKcieucy. An athdavit of the plaintiff, str.ting that the record was withdrawn at the trial " because he was advised by counsel that the testimony of one W. B. was material and neces- sary, and that the said W. B. now resides in Boston in the United States, and the plaintiff hopes to be able to pro- cure his testimony at the next circuit. ITdd, A sutticient excuse on the first default. Dcamotid v. Ycomam, ;) Kerr 71. 2 The absence of material documentary evidence, which belonged to a person who was willing to produce it, but could not then procure it in time for trial, is a surii- cient excuse in opposing a rule jor judgment as in case ol a non-suit. l>oe lUnn. Scott v. Kituj, 3 Kerr 72. 3 The evidence of a material witness in a distant part of the Province, who was unable to attend without serious loss and inconvenience, greatly disproportioned to JUDGMENT. 785 the amount in controversy, is a sufficient excuse for the plaintiff not taking his cause to trial at the first assizes, S, MdhmiU, 3 Kt'.rr 220. J In answer to a motion for judgment as in case of a non-suit, the affidavit of the plaintiff's attorney stated that a commission had been issued to examine witnesses on the part of the plaintiff, at W. in the United States ; that one of the plaintiffs residing at W. had written to the other plaintiff residing in this Province, that the commis- sion had been received, and would be executed ; in con- sequence of which he gave notice of trial, but was obliged to countermand the same, the commission not having been returned; that the plaintiff' residing at \V. had since written to the other plaintiff*, assigning as a reason for not executing the commission, his necessary absence on press- ing buHJuess, and the residence of one of the required witnesses at a distance from the place where the commis- sioners resided ; and stating that the commission should be executed and returned. Htidy A sufficient excuse. Doe l-n. McTacish v. Roidstiii, 3 Kerr 221. 6 It is a sufficient excuse for not proceeding to trial, that tin; defendant has since the commencement of the action taken the benefit of the Insolvent Debtors' Act ; and in such case, a motion for judgment as in easy of a non-suit will be dismissed with (;osts, imless the defendant consents to u .s^7 i>rnn'.,s,i.i4>iii',v. Judgment as in case of a nonsuit, for not proceeding to trial pursuant to notice, will be granted, although the plaintiii" became bankrupt, and an assignee appointed. l[(immonri«ft record to the circuit for entry, kt when he arrived there discovered it had not been re- ceived, without stating wiien or how it was sent, is not suliicient to discharge, on a peremptory undertaking, a rule for judgment as in case of a non-suit, for not proceed- ing to trial at such circuit pursuant to notice. Kiniicar v. W'nttx, ;'. K'l-r 440. 11 An affidavit stating that the deponent was in- formed and believed that the defendant had run to the [nited States without leaving any property in this country, is no answer to a motion for judgment as in case of a non- suit. MrOarrkjIc v. Smith, 1 AIL ,")0i). 1.) Where the plaintifi" did not try his cause in 184i'. iu consequence of the absence of a witness, it is no excuse for not going to trial at the circuit in the following year: tliat during the summer of 1849 the defendant ex- pressed a wish to the plaintiff's attorney to settle the suit amioably— the plaintiff not appearing to have assented thereto, and not stating any intention to go to trial. Wet- mr, V. Wood, 1 All. 10'i^. i« It is no answer to a motion for judgment as in case of a non-suit, that the plaintiff' instructed his attor- ney to send his subpuuas for his witnesses, after the open- ing of Court at which the cause was entered for trial, and that in consequence of not receiving the subpamas, he was unal'le to get the necessary witnesses. Currun v. Gilmoiir, 2.1(7. ST. Ii a sufficient e.\cuse is offered, it is admissible in a fi, tiiiii action as well as in any other; but in judging of till- excuse, the Court will not altogether Jose sight of the nature of the action. Ihiil. 788 JUDGMENT. 17 Notice of trial was given for the circuit in 1850 and countermanded in consequence of discovering that a material witness was in England ; notice of trial was "iven for the circuit in IBCl, but the cause was not triid, a com- mission which had issued to examine the witness in Euo- land not having been returned. It was not stated that the •ommission had issued in time to be returned before the circuit. Hehl, That the defendant was entitled to judc- ment as in case of a non-suit. Ritchie v. Porter, i All 860. It is no excuse for not proceeding to trial ac- ts -cm din '^ eng.:;: -lotice, that the plaintiff's attorney was so much .' -^ House of Assembly as to be unable to attend the liiax, ajKi that the counsel spoken to on the previous day to try the cause, was occupied in another Court— it not appea- ^gt-i . the counsel was prevented attending by any unforeseeia cause, or that no other sullicient coun- sel could be prociured. Kstabrooks v. Tapln/, i All. iiji. 19 An affidavit stating that the reason for not going to trial was the absence of a witness who resided in Calais ; without alleging that he was a material witness, or that any etfort had been made to procure his attendance or his evidence, is not a sufficient answer to a motion for judgment as in case of a non-suit. Nicholson v. M'irh, ■] All. -21. ^Q — , Service of a rule to discontinue, without pay- ment of the costs, will not prevent the defendant from obtaining judgment as in case of a non-suit. White v. Barton, 1 JiGxMENT. 789 [II. lil3('IlAi;(iING PiULE ON l-'KltKMl"l'ORY IjNDKRTAKINii — AnSWERS- Enlargino Eulk. I An application for judgment as in case of a non- suit for not proceeding to trial pursuant to notice, i& sufficiently answered by shewing that the plaintiff was ready and desirous to proceed to trial, but was prevented from doing so by the defendant's attorney objecting to the insufficiency of the notice of trial. And in making such application, if it appear that the default really was for not proceeding to trial according to the practice of the Court, the motion will not succeed. McDonald v. Ryder, 3 Kerr 218. A mistake in reference to an almanac in giving the notice of trial, which was defective, the plaintiff being ready at the Court with counsel and witnesses to try the cause* and the refusal of the defendant's attorney to waive the objection to the notice, is a sufficient excuse on a first de- fault for enlarging a rule, on a peremptory undertaking. 2 Where in an action against the Sheriff, the plaintiff's attorney issued the venire to a Coroner who was connected with the plaintiff (but of which the attorney was ignorant) in consequence of which the defendant challenged the array and the cause was not tried ; the Court dis- charged a rule for judgment as in case of a non-suit, on the plaintiff's giving a peremptory undertaking and paying costs. Stiles V. Gilbert, 3 All. 262. 3 It is a sufficient answer to an application for judgment as in case of a non-suit in an action of trespass '!« o/../rt'/7i/, that the plaintift"s attorney had by mistake laid the venue in the wrong county — the plaintiff ofi'ering a peremptory undertaking and paying costs. Peters v. hrawijer, 3 All. 432. * Issue was joined in 1854, and by the consent of defendant's attorney the cause was not tried during the following year : no further proceedings have been taken, the Court, in Hilary Term 1858, dismissed a motion for 790 JUDGMENT. judgment as in case of a non-suit, on the plaintiii's j^ivin" a peremptory undertaking to try the cause— it appearin-'' that he had a good cause of action, and the defendant not stating any defence. Jhw v. Sentill, 4 All. 58. .5 Where two defendants had appeared and pleaded by separate attorneys in two suits brought by tlie gunic plaintiff, and notice of trial had lieen given in one suit for the Sittings after Hilary term 1851), but it was not tried, in consequence of one of the defendants having comproraistd the suits, the Court refused a rule for judgment as in caf-e of a non-suit on application of the other defendant, on tiit plaintiff entering a stet imKesaus and defraying tlie costs of the application in both cases, and the costs of the day id the suit in which notice of trial had been given. Ranlni V. Anderson, 4 All. 635. 6 It is sufticient ground for enlarging a ))er<3mptory undertaking, that the plaintiff, who claimed under a will, was unable to discover the residence of the subscribinfj witness. Council v. IJoleij, 4 All. 636. ■7 Where the plaintiff countermanded notice of trial twice, first, because the presiding Judge at the Court was incapable from interest from trying the cause, and secondly, in consequence of the absence of the plaintit) s counsel from the country, a rule for judgment as in case of a non-suit was discharged on a peremptory undertaking. Shepherd v. TLdktt, 1 Han. 43. »i In answer to an application for judgment as in case of a non-suit, where the cause had not been tried in consequence of a challenge to the array, the plaintiii's attorney stated, that he did not issue a r>jidr>: to the Coroner, in consequence of a statement of the defendant's attorney, leading him to believe that there was no rela- tionship between the Sheriff and the defendant, the Court ordered the application to stand over, in order that the defendant's attorney might answer the affidavit. Hoyt v. Stockton, 1 Han. 329. 9 An aftidavit stating the temporary mental de- rangement of a witness, and his subsequent recovery, is "^v T JUDGMENT. 7!)1 sullicient to discharge a rule for judgment as in oase of a non-suit, upon giving a peremptory undertaking and pay- ing costs. Sdiimel V. Saiutders, Bcr. 278. ,y. An atJddavit of the plaintiff stating that he left the country on important business expecting to return in time for the trial, but was unable to do so, is not a suffi • cient answer to a motion for judgment, as in case of a non-suit. 'I'lie affidavit should state all the circumstances wbicli prevented the plaintiff's return, in order that the Court might judge whether his conclusion of inability to ii'turn was justified. Deshrimy v. Liriixjston, 5 All. 240. II- There is a distinction between cases where the iL'Cord is withdrawn in consequence of the absence of the plaintirt', and where it is caused by the absence of a third [larty. Ihiil. I'i An action of Dower, under the A.ct 21 Vic. cap. ib, was not tried, because the defendant's counsel objected, and the .Judge thought it could not be tried by the common jury, nor until an order for a view had been made, as directed by the Act : a motion for judgment, as in case of a non-suit, was refused without costs. Doe dem. McCnl hniijh V. Dowd, 3 All. 381. i:t-P<>i'€>iii|»toi*y iiiKlei'taking:. A peremptory undertaking will not be discharged on an affidavit stating that the defendant had left the Province, and iiad stated that he did not intend to return. Lesli'^ v. Itae, Bcr. 32. 14 A peremptory undertaking will not be enlarged merely on the ground that when the cause was called on tor trial, a witness who resided in town, was not in Court, and therefore the record was withdrawn. Doe dem K'tnueur Wiswell, Bert. 127. 15^ The Court will enlarge a peremptory under- taking to go to trial, where suspicion attaches on the defendant that he has been instrumental in keeping material witnesses out of the way of being served with subpoena. Robertson v. Crandall, 1 Kerr 56. 702 JUJXarENT. I« Wluiv tlio di'fondimfc had given notice of trial by proviso, jind lui(i afterwards coimtormandod it when it was too late for tlio plaintilV to give notice ; the Court enlarged a peremptory undertaking, the plaintiff appearing to have been misled liy the defendant's notice, (lilhn-t v Gordon, 2 Kerr S74. 17 A peremptory undertaking will not be enlarged unless the plaintiff shew that he has used all veasonable and ordinary moans to fullil it. Mrhonnhf y. Thompann '2 Km- 700. 1^ Affidavit of the plaintiff's attorney stated that he did not go to trial at the Court at W. because he understood that an objection had been sustained to the legality of the jury by the Court at Saint John, in conse- quence of the Sheriff' not having filed a list of persons qualilied to serve as jurors ; and knowing that tiie SlieriiT of \V. had not tiled any list, he expected a similar objec- tion would be taken by the defendant. Held, A sufficient ground for enlarging a peremptory midertaking. Sidcll v. licst, ',\ Kerr OiO. The plaintiff' being in contempt for non-payment of the costs incurred by his first default, it was made a condition of enlarging the rule that those costs, the costs of the day on the second default, and the costs of the motion, should be paid within a month. Sidell v. Best, 8 Kerr G40. 19 A rule absolute for not proceeding to trial accord- ing to peremptory undertaking, cannot be moved for until the term succeeding the sittings in which plaintiff' under- took to bring on the cause, notwithstanding time has gone by for giving notice of trial. The plaintiff may move for enlarging the undertaking during the term. The con- dition is not broken until time for trial is past. Groven v. Sisson, 1 Kerr 102. •iO A peremptory undertaking will not be enlarged on the ground that the plaintiff's counsel advised on the first day of the Circuit, that the declaration must be amended — in consequence of which, the cause was not tried. Marshall v. Winslow, Mich T. 1833. JUDGMENT. 75»;J jiiD4i li'«'af('«l ii*» a nullity. In a summary action on a promissory note, tlie de- Uiidant pleadcnl as to part, that the phiintilT liad sustained (Inmate l)y tlie non-port'ormanco of the promises to the umount of 1'7 '.>k. wliich he confessed and was ready to pav; and as to the residue non-assumnsit. Tlie plaintiff treated the plea as a nullity, and signru judgment. ll<'lil, That the jiuigment was regular, it not being shewn that the plea was iiled in time. Sdijn; v. Smith., 2 .1//. 101. QiKor, Wheth(ir such a plea was good in a summary action? But if pleaded in time, it should not have been treated as a nullity. Ihld. Scmhk, That being accompanied by a notice of set- off, the plaintiff could not have signed judgment for the sum confessed. Ibid. '2-SottiiiK a^idr— Costs. In Hilary term an interlocutory judgment was set aside nil payment of costs, and on terms of the defendant paying Ci 9s. into Court within ten days after taxing costs, and if defendant would not accede to thesn terras, thf) m^jtion to be dismissed without costs. The rale entered by the clerk of the Court and served on the defendant was uucon- 'litional, "that the motion be dismissed without costs." The defendant afterwards paid part of the amount, and ai^reed to pay the defendant the balance in two months. The defendant afterwards discovered that the rule had been improperly entered, and in Trinity term applied to set aside the judgment. The Court considering that the defendant's attorney might have ascertained the decision of the Court, refused the application. Snyre v. Smith, 2 All. 363. 3-roi' want ot pica— Picas and notice ol defence. Judgment by default for want of a plea cannot be signed alter the plea is filed and a copy delivered to the plaintiff's attorney, though the filing and delivery were after the time Iw pleading had expired. Oulton v. Palmer, 2 All. 3t54. 50 i 794 JUDGMENT. If two pleas- arc ideadcd, and a notice of otlu i- inatttix of defence give^n under the Act. IB Vic. cap. 32, the plain- tifV is not justified in treating them as a nullity ; but sliould apply to a Judge to set them aside. Ibid. The actual signature of counsel is not necessary to the copy of plea delivered. Ibid. 4— SiljfiiiiiK; too Soon. By the Act. 12 \'ic. cap. 40, a defendant in a sumraarv action has thirty days to plead from the last day of tht term exclusively, though the writ may have been retuni able on the first day of the term ; therefore where the term ended on the 20th October, judgment by default signed on the 19th November, was too soon. Glass v. Coniqan, 3 All. 295. 5— Siiniiiiai'y Co^(«». The defendant allowed judgment by default to be signed against him for a sum above t'20, though the amount due plaintiff was under that sum ; the Court refused, after final judgment signed, to stay the proceedings on payment of the sum due, and summary costs. CoIUhh v. McArtkij, 8 All. 504. 6— letting' a<\4'ciitioii of writ of iiiqiiii-}'. A judgment by default in an action of tort, set aside on payment of costs after the execution of a writ of inquiry, on an aliidavit of merits, and that the omission to appear was through ignorance and mistake — no trial having been lost. Burrcll v. James, 3 All. 599. ■7— EHeet :i^ ovidciic*'. In an action of covenant on a deed purporting to have been executed at Birmingham, judgment by default admits the deed as declared on, and no proof of it is necessary on an inquiry of damages. Ilasliick v. McMaster, Mich- 'I- 1825. S— .rndgniciit l>y default— Assc»tistinciit— Afiidavii. In assessing damages under the net after judgment by default, the plaintifi' must establish the amount of his debt or damages by legal proof. Where the only evidenced JLl>aMENT. 795 matters 10 plain - it sliouW ,rv to the summary ay of thi en return - e tlie term signed on 'U)rri(jaii, '6 be signed amount due [, after final payment of McArthij, 3 iiKiiiiiy* Iset aside on of inquiry, ,n to appear lliaving been ting to bavt Ifault admits [necessary on ]er, Mich. T- Ulavii. bv [judgment it of bis debt evidence ol the delit was an account shewing several sums of money due from the defendant to the plaintitf on various trans- action*, with an affidavit of tlie plaintiff, that "the account was ju-t and true;" it was held insufficient, and the judg- ment was set aside. Scr Pructi.'e N'l. ")(). *> .liifuiilt ill FflaKiNii-at«>% 4:oiii*t. The defendant, O'Donnell, obtained judgment by default against the [daintiff in a justice's coni'i, oa an account for "Sundries." The judgment was signed Without an afii- (liivit of the debt, and an execution was issued under which the plaintift s cow was seized and sold — an action of tres- pass l)eiug brought. IIcM, The judgment and execution no justitication, as judgment not signed in accordance with >tatutory requirements and particulars insufficientlv des- cribed as " Sundries." Jackson v. O'Donnell, 2 P'l;/, (JO. lO-AdiiiiMMioii ol Coiitrnrl— Evidences Where a special contract is set out in the declaration, and the plaintiff obtains judgment by default on demurrer, the contract is admitted as stated in the declaration, and (vidence which would have been admissible under the {general issue, will not be received on an inquiry to assess the damages. McDonald v. Cummimj, 2 Pwj. 282. Jii<>li€<>'» CJoiiit. A Justice of the Peace has no power to sign a judgment ly default unless plaintiff or agent appears. Sec Supra ■ludgment I. WrUiht v. Varlee. Fraud cliai|;c«l a^:aiii*»t an ■ii'^oivcnt. Court will not pronounce judgment on the fraud where judgment by default against insolvent. Sec Insolvent Act. ^hm V. Kirkpatrick. JiidgiiUMit by dol'aiiit in eioi'tinenl— Sotting^ iiKidc— Sre Ejectment IV. 4. ^liiiiiary action— Filing plea before appearance— Letting dcleiidant in to defend. ^cc Andrews v. Hanson, 1 All. 509. What not a waiver of irregularity in si^ning^. ^'■( Practice VII. 11, 12. 796 JURORS. JVDOIVIENT (INTERLOCI TOKV). See Judgment by Default. JTIotions and Applications to ««et a«i(l<'. S«e Practice V. 30, 31. Settings aside of. See Practice VI. 15, 10, 17, 18. Regularity or Irreinilarity of. See Practice VII. 10, 11, 12. Revival of— Scire facias. See Practice X. 2. Aion-rcsiflent— i^ecessily ol obtaiiiin^^ judges order i* procee«l in cause. See Practice VI. 49. jrriOiiiE^T wuMc PRO tukc. Makings up new record. See Judgment. JUDOITIENT J^Oi^ OBSTANTE VEREDICTO Covenant— I iiiniateria I Plea. See Covenant 12. Replevin— PlealtJTiOi\. See Bastardy— Justice of the Peace— Courts— Criminai Law— Writ of Error— Foreign Judgment— Fredeiicton (City of) - Replevin— Costs I. 26— British N. A. Act. JURORS. Aflidavitsiof. See New Trial II. 41. Affidavit IV. JURY. 797 Conduct o!. See New Trial 11. III. Fees ai* witness— Right to ri*cov«M'. See Costs II. 37. JIBY qiichtion^i loi— On trial. See Evidence XII. l-§iimnioninie of— Highway. Where the proceedings of Commissioners in altering a, road under the Act 5 Win. IV. cap. 2, were objected to, where- upon the inhabitants appUed to two Justices to obtain a warrant for a jury. Held, That it was not necessary that the jury should be summoned from anotner parish. liey. T. Ciiiniuissioncrs of Hifihirnys for Pai'ish of Johnston, S Kerr 583. a— Vi'iiire. A reiiire to summon twelve jurors to try a cause is cor- rect, but as the number stated is not for the officer's guide in summoning, he should summon twenty- four. Huzcn v. Ihij^nn, -2 All 580. i^jkcre, "Whether thirty jurors ought not to be summoned under the Act 13 Vic, cap. 43. Ih'id. [See Venire.) '(-((iialitipntion of. A person named in the Act of Incorporation and in the libt of subscribers, who never authorized his name to be used or held any shares in the Company, ceases to be a member thereof after the first meeting to organize the Comijaiiv, and is therefore not disqualified as a juror, in an action brought by them. Portland hcrry C»)iq)anij v. I'rntt, 2 All 17. I~< Iuill4>ii|;e of. It is not a ground of challenge to the array, that soniu of the jurors named in the Sheriff's panel are not on tho list of persons qualified to serve as jurors, filed under the Act 18 Vic. cap. 24. Ihvc and Wife v. hvnf'c, 1 llan. 't^. \See Criminal Law.) 798 JURY. a It is no ground of challenge to the array, that the action is based upon a lease made by the Mayor, etc. of St. John to the lessor of the plaintiff ; that the Mavor, etc., had, or claimed to have, a reversionary interest in the land in dispute ; and that the Sheriff who summoned the jury, and the jurors, were Corporators of St. John— ;* not being alleged that the Corporation of St. John had any interest in the suit. Doe <}rm. Gi'diitv. Boyin', 1 n,iii. 481. It is no ground of challenge to a juror in an action brought by a Corporation, that he is in the employ of one of the stockholders in the Company. Fmlrridon JUkjiii Co. V. MrKphertioii, 2 Ilan. 8. 6 Where the Sheriff and Coroner had married sisters, it is a good ground of challenge .j the array, that the jury have been returned by the Coroner in a cause wliere the Sheriff" is defendant ; and the death of the wife of the latter without issue does not destroy the at'tinity. (hiltr>ie, 2 Kerr 77. The objection, however, not having been taken by tlie defendant until the cause was called on for trial, at a late day of the Court, the costs of the day for not proceeding to trial pursuant to notice were refused. Ibid. 7 It is no principal cause of challenge to the array, that the Sheriff' by whom the jury were returned was iiiar- ried to a sister of the person who was security for the costs, and who had aided the plaintiff with money to carry on the suit ; but the Court would in such case, on application by the defendant, award the cciurc. to the Coroner. Minrhisitu V. Miirsh, 2 Kerr «308. § The defendant uiay challenge tlie array if affinity exists between the Sheriff who summoned the .jury and himself. Wettnore v. Levi, 5 AU. 180. O— lllii<>«i<>t ot— Trial— %Vsiiv4>r. If one of the jury is taken ill during a trial, the Jiiiise cannot, without consent of the parties, swear another juror in his place, and continue the trial. The objection is not waived by the defendant's counsel afterwards addressing he jury. Nobh: v. JjiUinjn, 8 AU. 85. JURY. 799 10-DiK4ii(iiifi<^ntioii. The fact of a man being in the employment of Ji stock- holder of an Incorporated Company, does not disqualify him from serving as a special juryman in the trial of a case to which the Company is a party. Freikrirton Boom Co. v. MPhemn, 2 Han. 8. A challenge for cause to a special juryman must be supported by affidavits. (Per Weldon, J. at Xisi Prius.) II -NiiiiiiiiOiiiiiR ot Jury— Veiiiro— TiiiK* of service- Availability of objection. In this case the jury were summoned by a Coroner, the plaintiff's attorney issued the venire, but only placed it in the officer's hands two or three days before the opening of the Court. Sixteen jurors attended and a jury was struck from them. Defendant's counsel challenged the array on the ground that by the Act the jury should be summoned iit least six. days before they are required to appear. The diaileuge was overruled, and plaintiff having had a verdict, anile nisi for a new trial was thereupon obtained. Ilrhl, iperWeklon and Dnfi, J. J.,) that defendant was entitled as a matter of right to a venire de novo ; but, (per Fisher and Wetmore, J. J.,) that as no injustice had been done by the verdict, and the Court had the power to refuse a new trial in the exercise of its discretion the rule should be iliscliarged. The Court being equally divided the rule drop- ped. X. B. n. Railwaii Co. v. Murray, 2 P. i(: B. 43. I'i iiiryiiiaii iiiKlcr ii^c— Insiitticieiit altldavit -Delay. Where a party to suit in a Justice's Court after the ex- pirntion of thirty days obtained a rule niu for a certiorari to rnnove the judgment on an affidavit, simply stating that I" was informed and believed one of the jurymen was under itge, the rule was held improperly granted and was dis- tliarged. Reje4-tioii when should he taken ^ See New Trial III. 51. Olive v. Belyea. Kelatioiisliip and affinity of .luror. See New Trial III. 36. Bishop v. Gotf. New Trial IV. 5. Tuck v. Hardin;!. Treat ini;^ .liirors. Sec New Trial II. 44. Fcrrjnson v. Trocp. Keceivin;; rel'resiiineiit. See New Trial II. 80. McNeil v. Monre. Jurors lodging with plaintiff. See New Trial III. 46. Spence v. Trenliohn. Conversing with jurors by defeu«lant. See New Trial II. 20. Trefcthen v. CurmnH. Fe<'s as witness— Kigiit to recover. See Costs II. 46. Murray v. Jl illiston. Finding of Jury as to property in replevin. See Replevin 36. Gibson v. McKean. Special Jury— Talesmen. Talesmen may be sworn on special jury. Scr llmkiu V. Guilani, 4 All. 155. Striliing Panel— Ahandonment of rule. See Practice Vll. 1. Jury of view —Neither party should be preseiii iii tbt vieM. Bennett v. Smith, 1 P. a' B. 27. l.i, • ■ !■ JUSTICE OF THE PEACE. 801 iliruer and plaintitf— Improper conduct. See New Trial II. 43. Bennett v. Sinitlt. inry of view in actions of Dowei*. Sec Dower. Jniy separating after Judg^e's ciiarge. See New Trial III. 45. Lynibimi v. Devcher. (tiie^lions on trial proper for consideration of .fnry.- Set Evidence aII. Fiiiiol— Snninioninjf— Relationsiiip of ^^Sieriti. See Critniiiu,! Law. Itefi'ma v. Moleaiix. Deniiii'rer of ciialieii|j[e— Witii in qiicMion, A Justice of the Peace has no jurisdiction to try an action of trespass to land under the Act 4 Win. IV., cap, 15, where the defendant claims an interest in, or a liijlit to the use of the land ; as where the question was whether there was a puhlic highway over the land. Slnaii v. Ihiris •2 All. 503. •2 \ Justice of the Peace has no jurisdiction under the Act 5G Geo. III., cap. 17, to try an action where the title to land comes in question, and if the defendant in an action of trespass justifies entering on the land, as beinj; a highway, the jurisdiction of the Justice is ousted. rsiiii4>ii% wa^t'fs. By the Act of Parliament 7 and 8 Vic. cap. 11"2, sec. 15, in all cases of wages not exceeding t"20 which shall be due and payable to any seamen, it shall be lawful for any Justice of the Peace in and for any part of her Majt-sty s Dominion where, or near to the place where the ship shall have ended her voyage, &c., to make an order for payment of the wages. TFeld, 1. That any Justice in the county where the voyage e;aded, had jurisdiction. '1. That if there had been a deviation from the voyage agreed upon, or the ship was unseaworthy, the seamen had a riglit to determine the contract, and to recover wages to the time of leaving the ship. 3. That the jurisdiction of Justices under sec. 15 extended to all cases where wages were due and payable, and not merely to the case specified in sec. .lUSTICK OF TIIH VKXCK. 803 ii«*<«lioii. 11. i. That the order of the -lustice need not Jix any time for the payment of the wajjcs. Ileninti v. MlimU'it, 3 Ml -m. l-llAiioy d<'inaii4l— lti>vi(>\v from J ii<>it !<*<>% I'oiii'l. Where the particuhirs of the plaintifl'"s demand in a Magistrate's Court, were ;Jd. over I'o, thouj^di the; amount stated in the summons was for L';">, and thi; dcuumd proved, which had not heen reduced by actual payment, was less than I'o, and the verdict for '2h Od. Ifrhl, That tlie magistrate had no jurisdiction. Jh-aper v. Miiiirar, S !vrr-m. .V Wsiiviii^^ ltsilsiiM*4>. A Justice of the Peace has no jurisdiction uudi r the Act i Wm. IV., cap. 4.5, in cases of debt where the amount exceeds 15, unless reduced to that sum by actual pay- ments. A creditor has not the power of bringing,' such a debt within the jurisdiction of a Justice, by waiving the balance of his claim so as to bring the demand within the sum to which the Justices' Courts are limited. 117///,; v. Miidrni, 1 Km- 94. iVt'l^evised Statutes (Justice's Act) allowing abandon- ment. « An objection, that a defendant was a com • missioner for laying out public money, and as such con- tracted with the plaintiff, and is not therefore personally HiiUe, cannot be set up upon review of the Justices" jud;:- Hint, where it was not made at the trial before the liistices. The in-oceedings in Magistrates' Courts are !';j;ulated by the same general rule as in other Courts. '"'•"uVrv. Tih'uhau, 1 iu'rr 299. 1 In the case of a review from a Justice's Court, it is not a sufficient ground for reversing the judgment tliat the evidence to support the verdict is slight nnd contradicted by that on the other side, if the whole ease lit such as the Justice was warranted in submitting to the m I'or their decision. Jaw, v. Bvccii, 2 Ken- 323. * On review from a Justice's Court, the defendant against whom judgment had been rendered did not deny 804 JUSTICE OF THE PEACE. his liability, but contended that he was jointly liable with another person, and that although the action had been commenced against both, judgment had been rendered against him alone. It appearing on the Justice's return that he was the only defendant who had been served with summons and appeared, and that the judgment had been so entered at his request ; the Court affir . ed the judg- ment. The Court refused to receive affidavits to falsify the return. Buchstaffv. Doten, 2 Ken- 366. » On review of the judgment illegally rendered for a defendant in a Justice's Court, the same may not only be reversed, but judgment will be awarded for the plaintiff for the amount sought to be recovered, where the right is clear and the facts undisputed. Watson v. Mdrb, 2 Ken- 694. 10 The Court is very reluctant to disturb a Jus- tice's judgment- on a strict rule of law, where the substan- tial justice of the case is in favour of the verdict. Jonkii V. Coatcs, 'lAU: 10 r. 11— Replevin. A Justice of the Peace may grant replevin for cattle impounded, for breach of regulations of Justices in Sessions made under the Act 13 Yic. cap. 30, it being iu the nature of a distress damage feasant. See SterliiKj w Jones, 2 All. 522. £»2 A Justice has jurisdiction, though the value ol the cattle impounded exceeds £5, if the amount required to obtain their release does not exceed that sum. Ibid 13— Oraiitiiig new U'ial. A Justice of the Peace has no power to grant a new trial in an action tried before him under the Act 50 Geo. HI, cap, 17. Rose v. Marsh, Trin. T. 1B27. 14— Proceeding: witii trini— Diflevent .Instice. Where a Justice of the Peace commences the trial of a civil suit, but is unable to proceed because he is requii'ed as a witness, and another Justice is called upon to try the cause under 1 Rev. Stal>. cap. 137, sec. 28, he must con- «jaCT7" "I'm. . JUSTICE OF THE PEACE. 805 tinue the proceedings to the end of the suit, the first Jus- tice has no further jurisdiction. Siiiniier y. McMoikkjIc, 6 ,11/. 203. l,}-('oiiiiui*i>'io"« A new Commission of the Peace, in which the name of one of the former Justice is omitted, does not determine his lUitlioiity until he has express or implied notice of the new Comuiissiou. Tnnier v. Doyle, Triii. T. 1833. |6-!\'('ai'(>!^t .liiMtico— 3I«'aiiiiig°. An Act directed that the damages caused hy an altera- tion of a road, should be assessed by five freeholders, to be iippointed by " the nearest Justice of the Peace." Held, That this necessarily meant the nearest disinterested Jus- tice, llcr V. Ileaviside Ilil. T. 1883. 17-.\o jurisdiction— Issuing: execution— Liability. The judgment of an Inferior Court, involving a ques- tion of jurisdiction, is not conclusive ; therefore, a Justice of the Peace is liable in an action of trespass for issuing an execution on a judgment recovered before him, in a casein wiiich he had no jurisdiction because the title to land came in question, though the judgment remains unreversed. .?v Plrkettv. Perkins, 1 Ilaii. 131. IsMiiii;.'' execution— R4>g:iiini> if in Statutory t'oi'in. .SV<' Execution IV, 9. Protx>cdiiiij;:!>i loi* lircaiiinK^ into fieiit uikIlm- lawful (once. See Trespass II. 2. 1§-Pai'i§ii Court— Jurisdiction iuu»>t appear on face of pioccedingtii— Residence of plaintifl or defen- dant— Place. In an action in a parish Civil Court, it should appear on the face of the proceedings, either by evidence or by the admission of the parties, that the case is v/ithin the limits of the Commissioner's jurisdiction. And in an application for review where it did not appear from the proceedings tliat the plaintiff or defendant resided or the cause of action arose within the Parish for which the Commissioner was n 800 JUSTICE OF THE PEACE. appointed, it was held by Allen, C. J., and Weldon and Duff, J. J., that the judgment should be set aside, and also that the facts necessary to give jurisdiction could not be shewn by afltidavit : Wetmore, J., dissenting Corhrtt McCrmken, 2 P. <(■ B. 157. 19— K«'vi«iw — Point not rniMeU ai trial -•tiiib^taniiai .Ill!>iti4't' 4iOIIC. Whore the Court can see that substantial Justice has been done in the proceedings before the Justice, the deci- sion will not be reversed on a ground which the parties themselves did not raise at the trial. Reaina v. Archlbuld 2 P. iC- B. 250. A* to Kiifficieiiry of K<^^iivi'ni objcfrtioii tak<'n hi iho ti'ini. *SV(' Koiuetly v. Ttinibull, 2 Piu/. 378. JiidKiiiciit l>y «icraiiit— Sig^iiing: of— No party a|>|»<>ai'iiiK tor piaiiitiii'. See Judgment I. 8, JVrifiht v. Parke, No proper proof ol account nor particulars fiicrvcd. Sec Judgment V. 9. Case*!! of contract. See Infra Vll. Hideout v. Stevens. — Review. III. Duties — Liability — Protection. I— Paying: over money. A Justice of the Peace, to whom money is paid on a judgment recovered before him, is bound to pay it over to the plaintiff in the suit, and if he does so, and the judg- ment is afterwards reversed on appeal, he is not liable to repay the defendant, though he promised to retain tlu money till the appeal was decided. Wilson v. Bond, 2 All. 537. Qucere, Whether a justice is entitled to a notice of ac- tion for money had and received in such a case. Ibid 3— Refusing to proceed in cause. Where a magistrate commenced the examination of a party on a criminal charge, and after hearing a portion JUSTICE OF THE PEACE. 807 iiliMHiiiini k<'ii ill the sii»|M>ai'ii^ of the evidence refused to proceed with it further, the Court refused to grant a mandamus at the instance of a wivate prosecutor to compel him to do so. The Queen v. Inmiiiey, 1 Tfaii. 511. :i- Liability oi— Ti'««|»aiMM ~l»tMiiiii|( excciitioii. A Justice of the Peace is not liable to an action of tres- pass for issuing a second execution for a balance due upon a jiulgineut recovered under the Act 4, Wm. IV., cap. 4;"), Ijfrt'oie the first execution is returned the matter being within the justice's jurisdiction. Sttucart v. TLizeu 2 .1//. 254. Such an execution may be irregular, but is not void. llm. l-Dcf'i'Ctive conviction— Prior iietn. Where a Justice of the Peace has jurisdiction to try a complaint, and there has been a regular information, but the conviction and warrant of commitment are defective, he is not liable in trespass for anything done prior to the convictiou. See Seivcl v. Olive, 4 All. 394. 5-H<'<'ei|>t of iiioiicy by justice— Liability. Defendant, a Justice of the Peace, acting without juris- diction, issued a warrant for the arrest of the female plain- tiff, but when the parties were brought before the justice, he recommended them to settle the matter, and she paid an amomit to the constable and was discharged. Held, That the receipt by the justice of the part of the amount as his fees, was not such a recognition of the settlement as to render him liable for the sum paid. Gidncy and irijc v. Lxhhli', Pug. 388. 6 When a justice, on receiving notice of action, makes a tender which is not paid into court, and the jury timl the tender sutlicient, the plaintiff is not entitled to have a verdict entered for the amount tendered. Ibid. 7-Fi'otcction ofjiiMlcciii— li'rcg:iiiai'ity in pi'occcdinjus. Plaintili'j having been convicted before defendants, two •Uistiees of the Peace, of selling spirituous liquors without hcense, was fined a certain sum, to be levied by distress, 808 JUSTICE t)F THE PEACE. and if not paid within a limited time, plaintiff to Lo im- prisoned. At tile expiration of the timn limited for pay- ment, defendants issued a warrant of commitment, witli- •out previous issue of distress warrant. Held, in an action for false imprisonment. That as plaintiff was guilty of the offence of which she was convicted, and her imprisonmont did not exceed that assigned l)y law to the offence, defeud- ants were entitled to the protection of section 11 of tlie Rev. Stat. cap. ]2i), and to have the verdict reduced to twu pence. Smith v. Siinntons, 2 Pii[i. 203. Sec also Tres- pass V. 3. Armstrong v. MrCctff'rcy. >^~Vi\\HV iiiipriMOiiiiK'iit— (Joiniiiittiiis C'Icrk ol IViicc for i'efii»>iiiK: lo |»i-o«lii<>4' recoi-dis. A Clerk of the Peace is not bound to produce tlio records of the sessions in his i)Ossossion as such clerk, in com- pliance with a snhpn'na duces tecum, and where a Clerk of the Peace was imprisoned for refusing to produce such records when so required, it was Held, That the justice was liable to an action for false imprisonment. It was proper for the plaintiff, on the trial of thenction, to shew that while he was impvisoiied, he had been n- quested to perform certain judicial duties as Judge of Pro- bates, and had been prevented from complying with such request by reason of his imprisonment. ]Vetnw)y v. ILir'l- iiiH, 2 P. iC- B. 338. O— Coiiipclliii^ |)or(oi-iiisiiic<; of otiicial act§. In case a Justice of the Peace refuses to perform an ofiicial act, the Court, or a Judge thereof, may b- nilt order compel him to perform it. The issuing . -a is an official act, within the meaning of cha^. , stc. .i. of the Consol. Stat. Waterhury v. Xixon, 2 P. ii J'. ^73. 10— Coiiipclliii;;. Justice of Peace to peifonii a jiidif iai act. The power given to the Supreme Court by the Rev. Stat. cap. 129, sec. 5, (Consol. Stat. cap. 90,) to compel a Justice of the Peace to perform an official act, does not .lUSTICE OF THE PEACE. 809 apply to the proceedings before justices in civil suits umler cap. 1-57 i K'lrr 074. *2-Proc«>ediii|ir>t taken in F(»reiKn country. A Magistrate has no jurisdiction to administer an oath and take examination within the limits of a Foreign country, and a commitment founded on such proceedings ig void, and affords no justification in an action of trespass against the Magistrate. Nary v. Oivni, Bei: 377. :t-A«» sictiii^^— Aiitliority to one. An authority given to one Justice to recover penaltiesi may be exercised by two. E.v [xirtc DkhIoj), 3 AU. 281. liK— SiiiiiiiioiiM— Wai'raiit — Authority. Complaint under oath of an assault was made before a Justice, on which he issued a summons : the defendant not appearing, the Justice, on proof of service of the summons, 'ssued the warrant (B) under the Summary Convictions Act of Canada, 32 and 33 Vie, cap. 31, upon which the de- fendant was arrested, brought before the Justice ar.d con- victed, — protesting against the proceedings. Held, That as there was a comiilaint under oath, the .lustice hiul authority to issue a warrant in the first instance, ami that having used the form (B) instead of (C) did not make the arrest illegal, and that he had power to convict, though Ihi summons served was defective in not stating the day tht defendant was to appear. J !('(/. v. /'('/•/,//< s. 'I'liu. '('. 1^71 !>— OiiiiNfKioii ol Woi'-i\o olt.ici'tioii Conviction. Where the jurisdiction of the Justices appeared uiiuii the conviction. Avhich was in form prescribed by 1 licv. Stat. cap. 138, and the place of sale spoken of at the trial appeared to be known by all parties, and no objection was then made that it was not within the jurisdiction ot tlie Justices. Ilrld, That the jurisdiction sufficiently appearnl. K.v l>artr Jiiinhq), 3 All. 281. jusTicr: OF the peace. 811 II Iniiii-iiiK: i*'!**"*'. Tilt offence of wilfully injuring a fence under cap. 153 1 llev. Stat, is not ])un'shal>lo i)y saniraarv conviction. Ill- piirt'' Miillicroii, 4 All. '25S>. I'i -.loint sirtiiitf: Liiiisitir -A|»|»i'<'li4>iiwi4>ii ol. Uefore two justices can issue a warrant for the appre- hension of a person charged with being a dangerous lunatic wmV'Y the 1 llev. Stat. cap. 89, (Consol. Stat. cap. 22), the evidence reciuired by the statue must be given before them , both acting together, and it is not sufficient that an affi- davit be made before one and shewn to the other. McGnerk V. llirluird, 2 Piiii. 240. |:i 'l'i'i>«|>a'>««> -Want ol .■iiri>i(li('tioii— KosiKOiisiblc and |ii'obnl»l«' caiiHo I'o^tH a^-aiiifiit .jiiMtii^OM. The defendant, a Justice of the peace, issued a warrant to iiiivst the female plaintiff" on an information stating that shi did " unlawfully take and carry away from liis (the in- foimaiifsi protection, her daughter S. W." The Justice pre- fdTdl to act under the Dominion Statutes 82 and '6'6 Vic. cap 'ill, sec. 5(). Held, in an action for assanlt and false inipvibonuient. that the defendant had no jurisdiction to i?siK a warrant on this information, and was liable to an iK'tion of tres[)ass, and that the question of reasonable and inoliable cause can only arise where the Justice has jurisdic tiijii over the matter. Shies v. Jhrifati'r. (4 All. 414 dis- missed. 1 ','""/'. Whether the J)ominion Act ;J2 and 38 Vic. cap. '-■'. Mc. l:)!, relating to costs in actions against Justices is uut iitni circH the Federal Parliament. WJuttier mid icife V. hil'hh, 2 /'////. 248. II < oiiiiiiiiinciii to otli4>r |>la4'4> tliaii 4-4»iiiiii4»ii H:aol— Vnbal 4»i-4l4>i- -'l'i-4;<^|>a<»M. I'hiiutiff was (;onvicted before two of the defendants" •lusticeb of the peace for King's County, of " selling liquor without licence," and ordered to i)ay twenty dollars and Wiits, otherwise a distress warrant to issue, and in default •^t good, to be imprisoned in the common gaol at Kingston, l^iiigft County, for 50 days, unless the penalty and costs, '1' 812 JUSTICE OP THE PEACE. together with costs of distress and commitment and of con- veying plaintiff to gaol, shouM be sooner paid. At this time an act had been passed to provide for the removal of the Shiretown from Kingston to Hampton, and, in the meantime, making the gaols of St. John and Westmorland, the common gaol of King's, the ofHcer executing any pro- cess having the option of taking the prisoner either to St. John or Westmorland. The constable not being able to tind any goods to levy on, the justices issued a warrant of com- mitment, directing the plaintiff to be taken to Kingston and there imprisoned for 50 days, unless the penalty and costs (including costs of distress-warrant and of conveying plain- tiff to gaol) be sooner paid. The Justices verbally directed the constable to take plaintiff to St. John, and the fees were made up for taking him there. Plaintiff was only confined a few days, when he was discharged by Judges order. Held, In an action brought against the Justices and constable for fahe imprisonment : 1. That the warrant of commitment was illegal, both as to amount and place of imprisonment, and that thf Justices had no authority, verbally, to direct the constable to take the plaintiff to SL. John. 2. That, in section 11 of the 1 Pie v. Stat. cap. 129, the word "or" should be read "and," and that the provisions of the section did not apply in this case so as to protect the Justices. Qiuerc, Whether an offence is sutiiciently stated in a conviction for selling "liquor'" without license. Cainpln'H V. FkweUing et al, 2 Piui. 403. tJ}— TreM|>ii«s to lauds— Bona fi persons unknown to the informa'^t — provided the ividtnoe proves a sale to a particular individual, and no objiction \Nas taken i)y the defendant at the trial to the variance I'ttween the information and proof, and it does not ap[)car that he was in any way misled by it. lieg. v. f/i/rx// )»('///, 1 l'ii(i. 317. m On an information for selling spirituous, liquors without license contrary to the by-laws of the Town c f Monc- ton, the illegal sale was proved, but there was no evidence of the by-laws, and the Justices convicted the defendaiit of selling contrary to the Statute to i.egulate the sale of siiirituous liquors (17 ^'ic. cap. 15). Jlchi, That as it did not ;\p[iear that the defendant was misled, or had any de- fiiieo un the merits, the variance between the information aiitl tla- conviction was not fatal since the llev. Stat. cap. l:is, see. 1. Kr puiir, l>intl 3 All. 281. l!» A warrant to search for liquors in a dwelling liousi in which a family resides, and no part of which is used us a shop or place for the sale of liquors cannot issue under the Act ly Vict, cap, 30, witliout tli c oath of three persons stating their reasons for believing that liquors have been sohl. or art' kept in such dwelling house for illegal f'iiiu A'-w. V. ^■,(/^■r, 3 AIL 321. ;Hr 814 JUSTICE Oi<^ THE L'KACi;. Proof that tlie house in wliich the li(iiu)r was sti/cd wus kept Jis an hotel, will not justify a search-warrant on the inforniationof one person as it cannot bo judiciallv noticed that an hotel is a place for sale of licpior. I hid Where liquor legally imi)ortecl is condemned lunl. r sec- tion I;"), as being kept for illegal sale, the Justice lias no power to order the casks containing the liipior to \k- ilo- stroyed. I hid. Tlu! ()///(.s of proving thiit the liquor was not inti.-inlod ^or sale in ordc^r to save it from forfeiture under section 15, is thrown on the owner ; but to sul)ject him to the j)rniiltv under section IC), it must be proved that he intended the liquor for illegal sale. Ihid. An information under the Act need not state that thy informer is a reputable person. Ihid. *iO- Ki;;li( of'|»arly to know ■iiroi-iii«>i-. In a proceeding under Act 18 Vjc. cap. ;5('), soc. 15. the person summoned to shew why the liquors seizeii should not be forfeited has a right before going into his [iroof to be infornu'd who the complainant is, and wliiit lie has sworn to in the information. I\.v purtf Stfrciixon, ;» AII.-\[)\. *iOa— i\o ooiiiplaiiit on osifli— I'tirly iippoariiitf. Where power is given by an Act to a Justice of the Peace to issue a summons upon complaint made on oath, and tile party to be sunnnoued up appears and defduls the suit without any summons being issued, he cannot alter- wards object that there was no complaint on oath— this being only a preliminary step to authorize the sinninoii- to issue. Ex jxnic Wnnd, 1.1//. 4ti'2. 41— liiloi'iiiatioii— lii<|iior .4rt-»«'ai«li Waiiuiit A warrant cannot issue under the Act IH, \ii'. :{ti, to search liquors in a dwelling-house, in whicli a fa mily n'- sides, without the information of three persons, tliough there may be a slio[) or place in the house for the sale of liquors. An information stating that intoxicating liquors are kept for illegal sale by A. " in his house or shoi) or on the jjremises where he now dwells, in the County of 0.,' is not ■HNS WlOf^ .lUSTJCE OF THE PEACE. 815 sufficiontly (jortain to imtbori/e tin; search of a dwelHng- liouse uiKkii" the said Act. Such an information will not iustity ii search warrrnt, stating that there was a place in tliedwclling-lionso for the sale of liquors. /•.'./■ purh' ('lliii$( liqiKM- willioiil lict^nco— StutciiH'iit ot time A conviction for selling li(iUor without licence " on a certain day between the 31st July and 1st Sfptemljer in same year, to wit on the 1st day of August" is sutlicient, and it is not necessary to have fixed the exact day of sale. \Uiei-c a party is sought to ])e convicted under the Act 86 Wc.cap. 10, sec. 11, (Consol Statcap. 105) of sdlingli.juor without license, as for a second offence, he must he charged 111 tlie information with the commission of a second offence, and it must also he proved that at the time of the informa- tion he had been previously convicted, {lu'iiiihi V. Fniuh, distinguished). I,'(;itii'i v. .limt'icH <>/ (jncni's, -1 Jhuj. A>^r,. 816 JUSTICE OV THE PEACE. *i.'S— Helliiii; liquor contrary to i-«?Kiilalioii«s— Convirtion beroi-4' Olio .jii««ti4'i'~-Evi«lenc(>. A regulation of the General Sessions of the City and Couutv of St. John, made in September, 185G, required every tavern-keeper to put up, Sec, over his door, a si"n- Ijoard with his name at full length, and the words " Li- censed Tavern" legibly painted thereon, under a penalty of forty shillings. This regulation was made under the authority of the Act 17 Vic. cap. 15, see 7. which directed tliat the penalties should be recovered before t'vo Justices of the Peace. McG. was tried before one justice, and con- victed under this regulation " for selling liquoi without a sign-board. ■■ The conviction did not shew that McG. was a licensed tavern-keeper. Jlcld, That the conviction was bad for two reasons. (1.) Pn-cause one justice had no jurisdiction to try the offence ; and (2.) because the convic- tion did not state that McG. was a licensed tavern-keeiier, to whom only the regulations applied. Mcdilrcrij y. (ianli. 1 P. d B. ()41. 26— ^iiiiiiiisii-.v <'oiivi('tioii for stMMsiiill— Priiyin;; lo i>ro« r«'(>(l •Niiiiiniuril.v — Korvict.' of vn\ty nf iiiiiiutc ol coiivirtioii— .lii«4titic*atloii lo coiistablo an'oMiii^- Di^tiiK-tioii ItctAvooii order aii«l eoiivirlion. A Justice of the Peace has no jurisdiction to try an assault summarily, unless it is given him by Statute, and he must strictly pursue the authority given, and in order to give him jurisdiction under the Statute of Canada, H'2 and 33 Vic. cap. 20, sec. 13, it is necessary that the com- plainant sboukl request him to proceed summarily, and this request should be made at the time of the complaint. Where the proceedings did not shew whether such request was nimk' or not, Ijut it was proved that the complainant was present at the return of the summons, and gave evi- dence against the defendant, if any^ intendment could be made, it might be pi-esumed complainant had made such reijuest. If a warrant of commitment issued by a Justice of the Peace is good on its face, and the magistrate liad jurisdiction in the case, it is a justification to a constabk to whom it is given to be executed, and a person resistinj: JUSTICF OF THE PEACE. 817 oiiviction him. if? guilty of an assault ; and where the warrant was based on a conviction for an unlawful assault, it is not neees&ary. in order to make the warrant legal and a justi- ticatiou to the constable, that it should be stated in the conviction and warrant that the complainant had requested the uuigistrate to proceed summarily. Qiiirvc, Whether it is necessary to state in the warrant and conviction that the complainant had requested the magistrate to proceed summarily. Where the form given by the schedule of the Act has been pursued, and the offence is one over which the magistrate had jurisdiction, if requested to proceed, and he has proceeded and convicted on the evidence, and in the pii-stnce of the prosecutor, the Court was inclined to sus- tain the conviction and warrant. The warrant reciting the Conviction, and being good on its face, under such circum- stances, was a sufficient justification to the constable. A conviction for an unlawful assault may adjudge defendant to bf imprisoned in the first instance, under sec. 43 of the* 32 and 83 Wo,, cap. '20. It is not necessary, before a de- tVuilant, convicted of an assault, is imprisoned, that he shouid be served with a copy of the minute of conviction. The ")'2nd section of the Act 82 and 33 Vic. cap. 31, which mi[;ht require this to be done before a warrant of commit- ment could issue, applies to orders made by justices, and woiio cciirictii lit s. A party duly convicted of an ofi'ence, is bound to take notice of the terms of the conviction at his pi-vil. Ilrriiiiit V. (yLnir/j, 3 Piiii. 2(54. C. ritOCEEUINCiS FOR PkNALTIES. 'i7->«iiiiiiiioii<^-^<>i-vi(!4>— Moiling: liqiioi-. A proceeding for a penalty under the Act 1;") \'ic. cap. 51 for stliing intoxicating liquors is not a civil suit within the Justice's Act 4 \Vm. 1\'., requiring six days service of sum- mons. Sonhlc, Such an objection to the summons would be cured by the appearance of the defendant. /•.'/ jxirti' ^''>li. All. 48. SZAil>t— ('iiiiiiilati%<' i-oiiK'dy. Tlie action of debt given by Act 15 ^'ic. cap. 51, is a cnmu- I; 818 JUSTICE OF THE PEACE. lative remedy, and does not take away the mode of proctod- iijg prescribed by the Summary Convictions Act 12 Vic. cap. :U. Ex parte Tin )-tt,S AIL 1^2. •i9— K«'(>ii<>i<>— 'rowii of UootU Mork K«»co%'«»i'y imdor Art— Pro«i«'<',iiloi'. A penalty for selling liquor without license in the town of Woodstock, is recoverable under the Act 17 Vic. cap. ly, which regulates the sale of spirituous liquors, and nut hy tlie provisions of the Act incorporating tlie town of Wood- stock. Where no other mode is provided a prosecution to re- cover a penalty may be in the name of the Queen. The common law mode of proceeding for penalties is not taken away by 1 Kev. Stat. cap. KJl, sec. 32. 7i"////" v. Arniairoiui, 6 All. 81. 3'i- Sol<'iiiiiisjii;; iiiai'i'lat^;*'. The line imposed by Eev. Stat. cap. 140, sec. :{ for know- ingly solemnising a marriage where either party is under twenty-one years of age without consent of father, may be recovered before two Justices of the Peace under Rev. Stat. cap. 161, sec. 32. The proceedings need not be in the name of the Queen. liecjiiui V. GaUdiit, '> AIL 115. JUSTICE OF THE PEACE. 819 V. CoNVlCl'lONS. |-l^('lliii^ liquor— !\o day Hiii^i-iliiMl. A conviction for selling spii-ituons litjuor without license is had, if it does not specify the day on which tlic offence was eomiuitted. (But .sec '2:5 \'ic. cup. :];5.i 'Ilia (Jihm v. Frriirh, '1 Kerr 121. !l-K\C'<'|»tiOH»*. In a conviction under the Act lo \'io. cap. 51, which l)i'oiiil)its the sale of intoxicating liquors, except beer, ale, porter ai;d cider, it is insufficient to allege that the sale was "contrary to the Act of Assembly." The conviction slionid negative the exceptions in the Act. Kr [inrtu CMonI, :i .1//. 1(). 3 -P<'i'M>ii»« •««^lliiiK U«M'ii<>i4>~Oiiiis |»i-ol»siii(li. hi a i)rosecution for a penalty for selling li(|Uor without license, proof that the sale was made by a person in the defendant's shop in his alisence, and without shewing any general or special employment of such person by the defendant in the sale of liquors, is suttifient jtiimn "i<-ie evidence against him. A'c ])a'-fe Pdrl.-.i, :{ .1//. 287. The prosecutor need not prove that the defendant liad no license. Hiid. The penalty is incurred by the sale of any of the kinds of liquor mentioned in the Act 17 \'ic. cap. 15. Il)'"l. l-Foi*iii, A conviction under the Prohibitory Liquor Act IS \ic. cap. 8(), must follow the form prescribed in the schedule of the Act, and not the form in the Sumniary Conviction Act. K.v parte Breeze, 8 All. 895. The I'erni of conviction given, stated that in default of payment of the line and costs of prosecution, the defendant should Ik imprisoned for three months " unless the said several sums be sooner paid." Ilchl, That a conviction under the Act, which in addition to those sums, required the costs of distress and commitment to he paid, was bad. Ibid. e 820 JUSTICE OF THE PEACE. *— Adiiii*iJ*ion of Miile- Difl'oi'oiii •lii!>«ti<(>— picadiim rerov«'i'.v. A prosecution for selling ]i(|uor without license was instituted I jforo A., a Justice of the Peace who, on the return of the summons, adjourned the trial. The defend- ant then went before another Justice, and admitted tlie sale, whereupon such Justice imposed a fine upon him. At the adjourned hearing before A., the defendant pleaded this conviction in bar, but A., notwithstanding, proceeded with the case, and convicted the defendant. Held, That his conviction was good. Jlen. v. Roberts, 5 All. 231. 0—Hif:h\vays. A conviction for obstructing a highway is bad, unless it appear on the face of it that the place was u [mblic highway. lli'[i. v. liriftdi)/, 2 Kerr (114. 7 Dedication of a road to the public may be pre- sumed from long user and the expenditure of statute labour on the road, and a party may be convicted under the Stat. ') \Vm. IV., cap. 2, sec. 16, for encroaching ui)on such a road, as well as upon highways duly laid out and recorded. Jlcii. v. JtiicJidiuuiii, 3 Kerr G7-1. M— OwiKT of liiiKl iiol |>iiiii«»liabl4> for iiol i-ciiiovin^' fciici'— Duty of 4'oiiiiiiiwMioiioi- to i- penalty tliaii |»r<>K(>ril>4>«l l».v Act. AN'lien an Act of Legislature prescribes a detiuitt penalty for an ofifence, the imposition of a penalty othtr than the one prescribed is irregular, and thy conviction will be set aside. Kr parte Wilson, 1 P. t(- Jl. 274. lO — .lii<«ti<-<> aiit — Poiisiltv »»^ I'o^tts— roMM of coniinitiiK'iit. A conviction under the Act 38 Vic. cap. 23, for selling liquor without license is bad, if in addition to costs of prosecution allowed by the Act, the parties adjudge the defendant in default of payment, to be committed to goal for a certain time, unless the penalty and costs, toijcthry icitli the easts of coiinnitment and conveifintj him to 3'i iiiid 33 Vic. cap. 'iO, «tve. 13— Doiiiinioii Jiiuttiite AMMiiult. Wliert! the conviction awards the costs of conveying the party to goal not authorised by the Statute, the Judge on hearing of appeal has power to amend the conviction, and to rectify the mistake of the Justice convicting, and to strike out that part which relates to the cost of conveying the party to gaol. The Amended Section 65, shall be read in connection with Section 68, and the conviction aa amended to be enforcod. Opinions of Judges on case suIj- mitted October 1878. §i>lliiiK iiK'Ut witliom licence— 4'oiivi<>l ion under By- Law, St. Joiin. See By-Law 7. Kx inirte MiuncliaH. By-Lan M. Joiiii—Fiiiiiwliineiit hy iiii|»i'iNoiiiiieut lor brcucii of. .bet' By-Law 8. E.v parte Trash. VL Generally. 1-Void for lTncert»iiity. Where the information in a conviction charged the de- fendant with measuring or surveying lumber intended for exportation in violation of the Act of Assembly 8 Vic. cap. 81, and the evidence referred to three distinct Acta, but it did not appear for which of them the defendant had been convicted. Held, That the conviction was bad for uncer- tainty. Held also, That the Court had no power to allow costs on the quashing of a conviction. Regina v. Stevens, 3 Kerr 356. 'i~ A conviction adjudging the defendant to be im- prisoned for twenty days or pay i;5 and costs, is bad. Rt'EACK. 1 AllK'IKlillV llll|»l'0|»0«il*«. ^VlK^l• costs had been inproperly included in n convic- tion for brencli of l)y-law of City of Fi-cderieton, tin amount was deducted, and the conviction Hustained for the penalty. /•-'/■ jxirtc Moirri/, 8 .1//. 270. .5 X conviction for a penalty, wherelty dofeiuliuit was ordired to pay the fine " forthwith within thirty days," is sufficient under Jiev. Stat. cap. li\H, Form L. Ilni. y, M<(l,iini)i, r. .1//. (■>!.. <» AiljiidKiiitf roiiiiiiitiiK'iit- 4:4'i'tiiiiil.v. A|»|»liratioM <»! loiiii*.- A conviction under the Act 55:5 Yic. cap. 83, for soiling li(jUor without license, is had, if in addition to the costs of prosecution allowed hy the Act, the Justices adjudf^e tlio defendant in default of payment to be committed to gaol for a certain time unless the penalty and costs, foticthrr irilli flic cost>i of roiiniiitinent (iml conrci/iuri hi)ii hnidoJ, be sooner paid. Ucii. v. JIfir>f}iiii(tii, /v^s/ T. 187J5. The form of conviction (L. ) in 1 Itev. Stat. cap. 1:58 specify- ing the costs of commitment and conveying the dcfeudiuit to gaol is not applicable to all cases, but only whore tlit Act und(.'r which the penalty is imposed, authorixos tin Justice's to award such costs. Ihid. A conviction for selling liquor without license, stated the sale to have been contrary to the Acts of Asseinbh (stating the titles of the Acts), (ffld, That it was sufii- ciently certain, and that the conviction was substantially good under both Acts, the hrst, (17 Vic. cap. 15,) making tlu sale of liquor without license illegal, and the second, (;5o Yic. cap. i)'2,) imposing the penalty for such sale. //'/4liii|f |>o\V4'r-Cisi4»l~-liii|»i-iN4»iiiiieiit. The Act ;54 Vic. cap. 12, enacted. That during the erection of a new gaol for King's County, the Sheriff of the County was authorised to imprison any person arrested by him, iu either of the gaols of the counties of St. John orWestmore- hind, as such Sherifi' should think lit. Held, That a con- viction which adjudged a person to be imprisoned in tlit JL'STICK OF THK I'MACK. 828 couunon |j;iiol of King's County, at Kingston, was bad — the opti"!! of till) i)lace of iniprisonnicnt being in the Shui'ifif by till Act. lirfi.x. I't'iLliiH, Trill. T. 187'2. M Ciilai'KiiiK Kiil4> lor qiia*>>liiiiK 4'oii%'i4'li4»ii-.4|»|»li4'ii- tiOII— rxril^4> fOI ll4>ll-N4>l'Vi4'4>. A nilt' iiWt for quashing a conviction was granted in Easter Term, returnabk' at the next term. The rule was not served upon the prosecutor or justice, until the day pi'tctding Trinity Term. The Court refused to enlarge the vuk,— no satisfactory rtason being stated for the delay. fl,,i. V. IlarHliiiiiiii, Trill. T. I8(i8. Alioii riiibiiity for la\. Si I Alien. liMionU'd A|»|»i>('iili4'4' — liilaiit— 4'4>iivi4-li<>ii. Sn. Aiiprcntice. Itcmovtil ol |»l'o<>4><■4lill^:<>>. Sic Certiorari. Older of .lustices to coudi'iun li(|Uor with packages, etc., is iiiiiivisible and if bad in part is bad in toto. Hcc E.r pnikllircir,)] All. 390. VII. Costs. ' Costs cannot be given on a conviction for a ptualty for breach of a by-law of the City of Fredericton. The word " costs'' in the 81st section means the costs of distress and sale E.r parte Moiiry, 8 . ill. 270. '- -Costs not allowed on quashing conviction. Sac lo':i. V. Stnriis, 3 Krrr 350. '^ —Justices" Summary Conviction Act 12 Vic. cap. '^l gives no general po.vers to award costs on convictions. (■■'■I"n1e Clifford, 8 .1//. 10. '~ Where Juptice& ha\^ power to award costs on a summary conviction, they must specify the amount, /v' l"">( Ha lit, 3 All. 122. ■'* If the prosecutor appears at the trial of a com- I'laint, and the Justice, after hearing, dismisses it, he has no 824 JUSTIFICATION. p iwer to award costs against the prosecutor under the Summar}' Conviction Act, 1 Kev. .Stat. cap. 138, sec. 11. (But see Form P.) Kx parte Bcatt'w, 5 .1//. 377. 6— Co<^t!s— Pouci- to im'ai-41— liiloi-iiisitioii «1isini*)SC(i. A justice of the peace has power to grant costs on dis- missing an information heard before him under tlie Sum- mary Conviction Act, (Consol Stat. cap. 02, sec. 16). {Kx parte Beattie Mich. T. 1863, overruled). Ex purt>: livas, 2 P. ,f n. 337. VIII. Notice of Action. See Action at Law (Notice of Action >. Quf^re, As to notice of action where money not paid over. Sec Supra iVilson v. Boyd, III. 1. SIS TEKTll. Sec Carrier 3— Trover 20. .11 STIFIC'ATIOIV. Proof of— Oil ci'OMK-cxa'Jiiiiatioii of plaiii'JttS \vktiic»^. See Evidence VIII. 6. Privil(>K<' ol'lloiiMC ofAMseiiibly. See Arrest. Defaniatioii— Ociiei'al l»»*)tic'. Sec Defamation. MaUei' not allowinl iiiidcr ij^cneral i^Mic. Sec Evidence XIII. Jii!>)tifyiii|f iiiidcv third |)arty. See Trespass II. 5, (J, 11. Uiidor !»rocc!t)!4. Sec Exe'3ution IV. 4 — Justice of Peace IV. 20— Evi- dence III, 25. Acts whicli would have been waste, if done by the tenant, cannot be justified by any person acting under his authority. Sec Landlord and tenant VII. 3. AdinisMibility v'»r «vidcii«M' under ;f«>ii4'ral i«i«»u«'— OU- J(M!tion not made in tiiuLOi:!) AND TENAN'l'. 825 Birnkiii^ iiii«l 4'iit4'i'iii^ <-lo*«<' -Delii'iKliiiil Hvtiiig rm ^ci't'siiit of 4'oii**lal>l<> Cm4'ii<>i':iI is4'lr4'l 4»l - Trospaj*!*. In tnspjiss l)_v cattle, if the defendant justify the entry of the cattle tlirougli defect of fences, it must be specially l^i uded. (iiinroltl v. UuUct, Mich. '1 . 1834. US w iiiK"^. 1.44 IIE». \(>y[lM'iit 4lriill. .S'v Evidence XL!. /'////// v. FrcdcrirtiDi Boom Co. ^V(■ Crown (irant I. )\^. Sec Assessment — Damages — Mandamus. LANDLORD A1M> Tf:.\A\T. ■Sc' J'istress. I. Li;.vsi',s — Agi{p:i:mi;nts— CoNsiijucTioN — Operation. II. Tenancy — Notick to (^)uit. III. liENT. i\ . Hk.HTS III' LaMU-OKD. V. DKri'.NcK i!Y I'knant. VI. Leases. VII. MlSCELLANKOUS. VIII. 8uMM.Mi\ E.TKCTMKNT. I. Leades — A(iUj;K.MKNT — Constriction .\ni) Opkuation. I MVMM Ol |-4>V4>|-Ki4>MI — T4>liail4y 4l4>t4>l'lllill4>iC!>«sioii— Liability f'oi' wm. The plaintiff agroed to let a shop to the defendant in the same state that the tenant then in possession ]iaa it : the tenant on quitting removed some gas fittings which formed part of the shop, in consequence of which the de- fendant refused to take possession. Held, ihat he was not liable for the ront. Didui v. Tloicard, 1 .1//. t>15. 3— AKTccHK'iit for new lonse — Conditional. The lessee of a building lease containing a covenant bv the landlord to pay for improvements, being indebted to the landlord at the end of the term, surrendered all his in- terest in the lease, in order to secure the debt, and the landlord released the arrears of rent nnd agreed to renew the lease on payment of the debt within a year. //-W, on a bill filed for s])ecifi(' jierformance of this agreement after the expiration of the 3^ear, That it was a conditional agree- ment for a new lease, and not a mortgage. Piirr;>i v. Hnmi, 3 All. 299. 3 a— AKi'eonif'Ut to lea*i<«;— I'oiKlitioii tor |»iir*iiii*^<>. Defendant agreed to lease ungronted land from tin plaintiffs, the rent to be paid on the 1st Oetober, and it l)eforG that day she should agree to purchase the plaiiititlV interest in tlic hand, the rent to form part of the pmxdiase money; but if she should determine not to partdiase, and notify the pluintifTs thereof, the payment of rent wa? to be postponed till the 1st April, when the lease was i;o ter- minate. The defendant gave no notice of intention not to purchase, but continued to pay rent for two years after the 1st April. Held, That the agreement was not absolute, uiul that the defendant was not liable in an action for refusiuu' to purchase, nor for land bargained and sold. Mii^'dbn''"' V. ]}UtU;nll, 4 All. 200. After the termination of the plaintiffs' lease, the defend- ant leased the land from the Crown with the plaintirt- consent. Held, That the relation of landlord and teniHii having ceased, the defendant was liable to the plaiiiiiii^ for use and occupation. Ibid. LANDLOED AND TENANT. 827 |-FeiTy-f$<'n<>>on— Tei'iiiiiiiitioii. The owner of a ferry leased it to the defendant in May "lor tlie season of 1855."' Heh^, That this was not a lease lor a year, but that it terminated either at the closing of the river by ice, or on the Slst December, 1855. Frascr v. /);7/,/(/H, 4 .1//. 7-4. ,V-.4pro<'iiit'iit— llaseiiioiil. An agreement for tlie use of driving power of an engine i\ly an easement which cannot be created by parol, and a parol agreement would be determined by a convt:^yance to a tijid person from the party agreeing to give the powers Jinwimj v. Beri/iinni, 2 J^u;;. 115. «-P!ir«l lvi%%v for flir«»« years fr4»ii: Iiitiir4> rtate— H«rl- v;»;;for in poKKesMoii— Fayiiiciit of rout to— Toiiaiit at will to iiiorti^stg'ce. A verbal agreement to lease premises for three years liorn ,:. future date is void under the Statute of Frauds, and although by entry and payn ant of rent to the mortga- gor in possession, the party would become a tenant from i-ar to year as to him, he would be nothing more than a finant at will to the mortgagee, or a person claiming 'iirouj,'h liim, Ihul. ^-iloUliiiK^ over by tenant. A contract for a new tenancy for a year cannot be im- lied from the mere fact of the tenant holding over, no act iiiingdone from which an agreement for a new U nancy can :'!-• iuterreil. Lciiihton v. Vdmnirf, 1 P. ,(■ />'. 181;. fliiiiititl niiiiiimiiiv lariii- TenaiM'y. Se,'. No. 8. Vumulvr of l<>a<»4> What aiiiouii««. to. 'S'C Covenant 1). Tenancy — Notick to Quit. •*"" Where A. went into possession of premises as teoant to B., and had occupied for several years, without !i" terms of holding being agreed upon, and never j>aid 'uy rent, hut built a barn and made other improvements 82M LANDIiOKD AND TENANT. on the promises, tim\ on being applied to for payment ot rent after B.'s death, stated that his iraprovcinentB weit worth niore than the rent, llrld. That it enured as a tenancy from year to year, and that the tenant could not l)i' ejected without a notice to quit. Doc (km. Mncqwcn v. Hunter, 1 Kerr 518. O— AKI'4*(>lll<'lllt lO llOl«l on IK'U' tOI'lll!^— £vi«l4>IIC4>. Plaintiff, in tlie occupation of property as tenant from year to year of tlie defendant and two others, who owned the pro[)erty in equal shares as tenants in couunon, on heing applied to by the defendant shortly before the expira- tion of his year, stated that he wished to continue in possession another year ; defendant then gave liini notici' that ho shoiild expect .t'lOO per annum, for his share of tin propo 'ty, to which the plaintiff made no objection, but continued in posse, ssion. Defendant afterwards distrained for a (juarter" ; rent. JIahl, That there was siit'iicicnt evi- dence for a jUry to infer that the plaintiif had agreed to hold as tenant to the defendant upon tlie new terms. ISturdci V. Mi-nitt, 'A Kerr 041. IO~ $ii«>.v ot T«>iiHiir.v- AVoi-kiii^: Fsiiiii. A person working a farm on the shares and occiqninf,' part of the house jointly with the ow^ner ot ilie farm, iia-^ not such a tenancy as to prevent the owner from maintain- ing trespass to the land. Ji\'st v. Stlin-toii, 2 All, 053. II— %%orkiii^^ Fai'iii— l*4»MNr 4!> J t'aiiy— Admission— LotU'i'. The plaintiff leased land to A. for two years, from tlu LANDLOKI) AND TENANT. H29 1st May, 1848, with an agnjemont to renew tlu' lease or pay for the improvements. A. assigned to B., who remained in i)()88t!Ssioii till August 1851, and then assign(;d to tlie de- fendant, subject to the payment ol' tiie rent (hie. Before taking the assignment, the deten(hint wrote to tlie plain- titT, enijuiriiig ahout his title to the land, and wliether 111' (deiendant) would he saf(! in paying tlie rent to J]. The plaintift" answered, that he thought ho had a right to look to the de'endant for the rent ; to which the defendant re- plied, admitting his liahility for the rent, and that the plaintiff was the owner of the land. Ufhl, That the letter admitted a tenancy froju year to year, at the r(!nt r(;s<;rved in the lea-(i to A., and that it was properly left to the jury to tind whether such a tenancy (existed. h<>c v. Prlh'ii,'i-, I All 83. i3-A^i-<'(>iii«>iil l^4>liiii;; into |»OH*v<«ioii iiiir. An a^neement was made between A. and B. in 1821, l)y wliiili A. agreed to convey land to 13. on payment of a cer- tain sum of money on or before the 1st May lS2i), together with tlio interest on the purchase niontiy lor the lirst three wars, iuul eight per cent, for the last two years, as a eon- sidoratiou for the use of the land. B, was let into tiie possession under the agreement. Itdd, That this agiee- menti-nated a tenancy for years, expiring on the 1st May 1821), and not a mere tenancy at will. / '"(■ di'iit. CiijJ v. i'niiHiiint/j^ lU'y. iiS'I. II AKrcciiinit to |»iir«liii«t«' not liillillcd rriiaiK-y. A. became tenant from year to year to B., at a certain ivnt in 185H. In 18()U, A. agreed to i)urchase the land, and niive his note for the price, taking a hood for a deed Irom B. on payment of the note. The agreement to piir- iliiise was never carried out, no payment having be.ai ma le »\' A., and by consent of the [)arties th(3 agreement was Itstroyed, and A. remained in po-^session without any new agi'efment. IhhJ, That the tenancy was not determined by the agriement to purchase, and that B. could distrain for the subsequent rent. Also, that whether the tenancy contiiiaud or not was a (juestion of law. (.'n»;iyill v. IVort- '»"«, .1//. (',48. 830 LANDLOED AND TENANT. 15— Holding over— Xotice to quit— Kjcetinent. Where a tenant, under a parol lease for seven years, holds over after the expiration of the term, no notice to quit is necessary, before bringing an action of ejectment Doc dem. Parkinson v. Ilaubtman, Ber. 431. against him III. Rent. IG- Payment— ITIode-C'iiMtoiii. In replevin, the defendant proved an occupation by tlie plaintiff at annual rent from Ist May, and also by several witnesses, tbat rent was generally paid quarterly, and that on a general letting they thought the custom was to pay quarterly. Hehl (Chipman, C. J., dnhitante), Tbat the Judge was right in directing tlie jury to find for thi.' plain- till', because there was not sufficient evideuce of an agreement to pay the rent ([uarterly. Smith v. Mid hen, 1 All. 210. QiKMre, If the evidence of custom was admissible. Ihid. 1?— Acceptance of rent— Recognition of person. QiKcre, Wliether the accept'^ xe of ground rent, by the lessor from a person in possession, is a sufficient recoijiii- tion of such person as assignee of a term. Anslcy v. Peters, 1 All 839. 18— Claim liy landlord— l§iierili~F\ecntioii. Where a landlord makes a claim for rent to h dc'diieted out of the proceeds of an execution, under the Act 12 Vic. cap. 39, the Sheriff is entitled to a reasonable time to t-ii- quire into the demand ; and where the tenant bad denioJ that any rent was due, and the landlord refused to allo^v the Sherifi' time to make the inquirr, the Court refusal the cost of an application to compel the Sberitf to pa the rent. Xoiclin v. Anderson, 1 AIL 497. 19— 4'onveyaiii-<' to third party Kent payahlc io Prima Ia4-i<' ca<«<*. The defendant went into possession of property under an agreement with A. for three years ; before the expira- tion of the term. A., convesed the property in fee to tin LANDLORD AND TENANT. 831 plaintiff, and told the defendant that the last quarter's rent must be paid to the plaintiff : the defendant paid the rent accordingly, and remained in possession after the expira- tion of the term, but refused to recogni>5e the plaintiff as lamllord. Held, in an action for use and occupation, That the phiiiitit^' had made out a pr'inin fa-^'ic case, and was im- properly uon-suited, though the defendant had no notice of the conveyance, and though A. admitted he had no title to the Land, and went there by permission of P., who was the owner. CoimeU v. Hammond 'Z All, 120. llc]i} al?o. That such evidence of title in P. should not hiive been received. Ibid. 'iO A^nciiit'iit witli wifii'— A^foiK'y. l)e eiulant held land as tenant from year to year under an agreement with the plaintiff' ?:• wife and with his consent, liywhieli agreement the rent was to be paid to the wife. llehl That the wife, in making the lease, must be pre- sumed to have l)eeu actin,' as her iuisband's agent, and that the navment of rent to her would be sufttcient unless her husbr-id notified the tenuil; not t) do so. />'.- D^'in. .l(/'//vw V. Taiihii-, 5 .1//. U4. 'il-DNi>laJiiit>i*— Wliiit tXocs laot uaiioiiiil to. A refusal to pay rent to the plaintiff, and a denial of liis light to the property, bat at the same time claiming to hold it under the lease from the wife does not amount to a iliselaimev. Ih'id. *2'i-K<'ui not — liidp^cN oidor r« pay rt'itt. Before an order can be made on a Sheriff to pay rent out itf the proceeds of goods sold by him under execution, and taken from leased premises, it must be shewn that the mit is actually due. Ri't--l*refVr<>iitMil li<>ii. Si'i; Insolvent Act HI. .1. Lrod v. McGuirk. 832 LANJ)LORJ) AND TENANT B Kent charir<>nblo on f iiiid** b<>queiitli4Ml. See Executors, Sec, 14, Wctnuiir v. Kctchmn. IV. UiGHT3 OF Landlord. tl3— (jiootiM «««'i'/;(>4l by Kberifl— Koiit not due. When the goods of a tenant have been seized liv tlii' sheriff under a,//. ./((., and taken away from the demised pre- mises l)efore any rent became due, tho hmdlord is not .-n- titled to receive any part of the proceeds of such i^o^dsfro n the sheriff, under the Act 7 Wm. IV, cap. Id, s.-c. ]], Street V. (jIhsh, 1 Kevr lOo. *24— Doiibit' U<>iif — liimittirioiit siiii'. It is no answer to an action for the recovery ot doiibii^ the yearly vakie of premises held over after notice to ijuit, that subsequent to the notice and while the tenant rciaaiii- ed in possession, an agreement was made between hiiiiiiiHl the landlord to refer to arbitration a claim nuule by tln^ tenant tor improvements on the premises during th-' ten- ancy. JliitJtetctiif \'. McMdhoii, 2 Kijrr 209. 25— K(>-4>iiii'>' loi- iioii-psiyiiK'iil of i-4>iit lviiiidlor:iii(lloi'(r« satisfy a half year's rent, and tliiit as in tliis case thorc was moie than suliticient Un that purpose', thi; rule should UP refiist'd. DiHuh'm. ChipiiKin v. llnr, )] Piiij. 170. •JO- !>^(>rvic<' or4l«'cliii'utioii on 'IV'iisiiil -Ifotu'i' to Lstiid- lord— Wlic'tlioi' Bicri'MMUi'y. Where ejectment is brought for rci-ovcry of premises wliicli lire under a demise at the time of the commence- ment of the fiction, if the landlord has notice of the service o! the declaration on the tenant, and of tlic nature and iffect of it. Ik; is hound hy the judfjjment recovered: l)nt unless the liindlord has such notice tind understood the imturc of the ])roceedii)g and the eti'ect of it, he will not be liDiuul l)y the judgment; and whether he did so understand it is ,1 (|',iestion for the jury — per Allen, C. J., and Weidon and Diil'f. J. J. ; but, Jldd, per Wetmore, J., tiiat notice of the proccediu'T in ejectment to the landlord is not neces- s;ii'y, the ,.3rvice of the declaration on the tenant being suftifiieut to conclude the landlord by the judgment, so as to prevent hirn questioning its obligation otherwise than In action of ejectment. Upirood v. Morrlsi^ci/, 3 Pfift. olO. '27— Kiulit t<» one ycsii'N I'ciit — It4>iil not 4lii<>. Where the rent is not due the landlord is not entitled liy virtue of 1 llev. Stat. cap. I'it), acc. H (Consol. Stat, cap. 83, sec. 8), to be paidrent from proceeds of the sale under an execution . Si'iiil)l(', It is doubtful if this section applies to cases of goods taken under a writ of attachmcmt. Kx parte Fi.sh, 1 /'. ,(■ /;. 'ITS. V. Dkfenoe ry Tknant. 'iN-Thii(| |M>r**oii diK|>iitiii$f tlio ii};lit of FlaiiititI'. Where tlie defendant entered into possession as tenant to F.. under a yearly rent, she cannot set up \>y way of iletence to an action brought by the legal assignee of F. for tlie rent accrued subsequent to the assignment, that a third person disputes the right of the plaintif/, claiming tdso as assignee of l'\ AiihIcij v. Lomimire, i Kerr ;i21. !Ma 884 LANDLORD AND TENANT. A tenant cannot during hia continuance of the posses- sion dispute the title of the landlord under which he came into possession. Jhid. 39— HIort^iraKt' by LiiiMllord. A tenant cannot set up as a bar to the demand of his land- lord for rent, hat the landlord, or one under whom the land- lord claimed, had previous to the demise mortgaged tiie premises in fee to a third person, unless the tenant has been evicted by the mortgagee, or paid the rent to the mortgagee under notice, and to avoid eviction. Jnprnt v. Johnson, '1 Kor 541. :{0-Dis|>iiliii^ titl<>. The plaintiff ])eing in possession of land, a grant of it was made by the Crown to the rector, church wardens, and vestry of W., of wdiich the rector informed the plaintiff, who agreed to hold the laud from the rector at an annual rent, and paid the rent two or three years. Hrhl, That the plaintiff could not dispute the rector's title by shewing a previous grant of the same land to B., through whom be did not profess to claim. Ifnfiltr>i v. Holnies, 1 .1//. 12. (6' titlo. Src Ejectment 11. G. :$l-l'*«' and ocrdipalion— Tt'iiaiicy— EviflriMO. In an action for use and occupation, where it appeared that the defendant had given the plaintiff notice he would (juit tlie plaintiflf'o premises at the end of the term; and after the expiration thereof the plaiutift""s agent demanded the premises, which the defendant refused to give up ; and at a subsequent period, before the end of the first (juarter, the defendant tendered the keys to the plaintiff's agent, whicli he refused to receive, stating he considered the de- fendant tenant for another year, and liable to pay double rent; the defendant paid the first quarter's rent, after which it not appear that he was in possession. //''/'/, 'i'l'iit the circumstances were not sufficient to create or continue a tenancy after the first quarter, and the verdict for tht plaintiff was set aside, lioionun v. Avery, 3 /v'/r 'iOb. LANDLORD AND TENANT. 885 ;jj^ A tenant having given notice of his intention tu (jiiit at the end of his term, afterwards refused to give up |iO!)St'Ssion. but before the expiration of the first quarter offered the keys to the landlord's agent, which he refused to receive, stating that he should hold the tenant liable for (louliie rent ; the tenant then ceased to occupy the premises, and afterwards paid tlie first (juarter's rent, and pending an action for the next half year's rent, paid the last ([uartcr's rent, after judgment by default. Held, These circuiustauces were not suiheient to constitute a tenancy, aiil that tlif landlord could not recover for the interme- diate quarters in an action for use and occupation. Bair- mn v. Avrvji, 8 Kerr 587. 3;)-roi'iii(>i' I'ecovci'y— Ei'<»«'lioii— <;iaiiii ol' roiliictioii. of I'MII. •SVr Action at Law (Former Keeovery) Unarkc v. il/c- :il-Elltii'<>l> «>l' I'fllt ('OII%4'.VSIII4'4' <>r l'4>%'4>l'<<>ioil — (;uv('iiinil. Till- iiluintifl's leased land to the defendant for a term ol years at the rent of t*30, and afterwards during the term, conveyed away the reversion in part of the land. Ikhi Tliat the rent being entire, the plaintiff could not apportion it, and maintain covenant against the lessee for non-iiavment. Rector dr., of SaehcUU v. Jhieon, G All. 134. U-%Uevin. lleasonable time allowed for sheriti" to enquire into claim 01 rent. See No. 15. 36-Tou}mt ol" ITIoi-t;;ag^<>e— ^cttiii;; up title ol illoit- A tenant c_ a mortgagee lifis a right to set up the title ol the latter as a defence to an action of ejectment brought l^y the person holding the e(|uity of redemption. iJoe dcin.. ^nuth v. Stuirr, 1 P. a- Ji. 5(3. VL Leases. i-Ev<>fiiiioii of— Po<>»s(>s V ». 6^ ^^^^ rv '^ i ' ( li S36 LANDLORD AND TENANT. Ill, ('ap. 3, sec. 18, it is not necessary that the execution of the lease and the possession of the land should he exactly conciirrent acts. A lease from A. to C. for two vears made at a place 30 miles distant, on the 14th July, and possession taken under it on the 18th or 19th July, and continued thereafter, will not he avoided by a de^d of liar- gain and sale to B., duly acknowledged and registered on the 3rd August ; such lease to C, though made in oontrn- vention of an agreement for sale to B., will not l)e void on the ground of fraud, unless C. were cognizant of the agree- ment ; and fraud will not be inferred. Sufhrrlmi'l v. ll'-//- ter, 1 Kerr 141. 9 AsNiffiKM' ol' term — Prot«'i-t— H<>eoy:iiilioii — liitfirM l'«>(>4>V<'l'nl»l4>. A party suing as assignee of a term, on a covtiiant con- tained in the lease, and alleging and making profert of an assignment by fleed is hound to prove i*- ; and if s< '.vral assignments are allegerl, a traverse tiiat the pbiintit!" iii'urae entitled imxlo ct forinu, puts the whole of them in issue. AiiHlcy V. Peters, 1 All. 331). (jHifir, Whether, if an assignment i)y deed had not Inen alleged, the acceptance of ground rent by the lessnr from n person in possession, was a sul'licient recognitioi of .su.li person as assignee. ////'/. In an action by the assignet; of a lease against tin- lessor, on a covenant to pay for improvements accordin;,' to valuation, the plaintiff i^f entitled to interest on the amount appraised, from the time it beconifs payable. If tli*.' Itssor refuse to appoint an appraiser, the jury may allow intertst on the value of the improvements as part of the damages. Aush'i/ v. Pderit, 1 .1//. 339. :t l^«>a^r— F.\«'liiI4'. lor 4'oiil- F4'rioii4-y. By an instrument under seal, A. agreed to lease tu ij. the exclusive right to search for, dig, and carry away coal found in and undci- property thereinafter dedcrilied : that such exclusive privilege of the right to search should extend over a period of four years from the date, in order that H. LANDLOED AND Ti naNT. 837 hliould liavf ample time to complete such search. It then descrilied the hind over which the right of search extended ; and reserved to the le.'^sor one shilUng and three pence per diiildron. in the event of coal being discovered, sufficient to warrant working, and t'o per annum for the right of searching ; and it was further agreed that A. did thereby lease to ]]., his heirs and assigns, for ninety-nine years, such all 1 •jo uiuny acres, not to exceed four, which might be re- ijiiiied ill connection with the working of the said mines, ami that such privilege should extend to and be made available in entering on the said lands for the purpose of uiiiiing, etc., in connection with such mining operations. //. W, That the lease for ninety-nine years was contingent iil'iin the discovery of' mines ; and if none were discovered within the term of four years, the lease for ninety-nine years did not come into existence. Caledonia Miniini ('nmjuini/ V. BH'iht, ») AIL 1»6. 1 -Appoitioiiiiic'iit of pi'i'j^oiiM HM Valiintoi'!ii. A building lease ccmtained the following covenant: — 'The lessor, for himself hib heirs, and assigns, doth cove- iiiint and agree to and with the suid lessee his heirs and assigns, that at the oxi>iration of this lease the buildings on the demised premises shall be valued by disinterepted per- s(iU8. and he will then either pay for them at such valua- tion or continue the lease to a further term at the same auiiual rent at the option of the said lessor. Ilald, that as the valuation provided for was not an arbitration iu.t a mere appraisement — the lessor could himself appoint the valuators, as long as they were disinterested. Gilbert \.Sunth,-ll'. ,(■ n. 211. t^tUiiiM' ol ljt>s««>o airaiiiM L('««*»4»i- — C'ovciihiiIm. >S(r Assignment B. l*oH«'i' Of Altoriit>y— Aiitlioiit} l« 4>\«;riit(' lea*.*'** wilii COV«liilUt!!i. 'V( Power of Attorney. <'oveiiaiit>>— ANNi|rii4>4' 4»f Lewsc4> atfaiawt l.4>«tsor— Plea4liuf(. 'S>' Pleading II. 25 838 LANDLORD AND TENANT. i 1. LesNor'ii title— .4ctiiHl Entry. See Ejectment L 2. Covenant)!! for new leiiM' — Fnyinent ol 4|>|>i>iiih<>nioui- Condition*4. See Covenant 8. Authority to lenM>— .Hod*'. See Fredericton (City of). Ejectment by ILesMee aK>iiiiMl Ee^f^or— SMn-rsKlci- hr Ee<«M>e relied on— 2 Scinhle, That tlie Act 13 Vic. cap. 53, sec. iJ'J, s land- Rinrlit of property in — .1 notification hy third party. If a tenant cuts down trees lor tlie purpose of clearing wilderness land, they belung to hini, and the cutting is not waste ; but the oiikh lies on him to shew that they were cut for that purpose : and per Clhpman, C. J., Carter, J. and m LANDLORD AND TENANT. 830 iimriit- I'ciKli'i- by i-ovt'cdiiiv'^ I'aiker, J., tliey should be cut with a present intention of ckarinf,' the land. But, per Street, J., if the tenant in- ttiuled to clear the lan.l at any time during the term, it \V!i8 not wa.ste. Jiirtor ,C-c. of Hampton v. Tit us, 1 aU. 278. Acts which would have been waste if done by the ten- ant, cannot be justified by any person acting under his au- thority. Iliiil. i Tlule iiixi or summons should issue to allow partj' to defend as landlord in action of ejectment, when relation of landlord and tenant does not clearly exist. Sfi' Dm v. F„i,ls, 1 .1//. 080, (138. .^-LaiKlloi-il siii«l K'liaiit— Writ <»f roMtiliitioii - Titl«> The defendant, claiming to be the owner of a house of wliicli the plaintiff was in possession, induced him to at- torn, and aj?ree to give up possession on a certain day. The jilaintift", having afterwards discovered that the defen- dant had no title to the property, refused to give it up, whereupon the defendant tuok proceedings against him un- der 1 Rev. Stat. cap. 126, sec. 27, and obtained judgment, under v",ich he was put in jiossession of the house. This judgment was reversed on appeal, and a writ of restitution awarded to the plaintiff; but before the writ could be exe- cuted by the Sheriff, the defendaiit pulled down the house, and thereby prevented the plaintiff from getting the benefit "I his writ. The plaintifit had recovered a judgment under the 30th section of Act, for damages and costs, on account ot the proceedings against him. Held, In an action on the ciiMj for preventing the Sheriff' from executing the writ of itstitution— let. That though the defendant might be the owui-r of the property, having got into possesion by process of law, which was afterwards set aside, he could not avail himself of his title, as an answer to the writ of restitution, and that tiie plaintiff had a right to be put in the same liosition as jje was before the proceedings taken by the de- fendant to disposses him ; 2nd. That the judgment ob- tained under the 30th section of the Statute was no bar to the present action ; that plaintiii' was, at all events, entitled 0] 840 LAi\J>LOIU) AND TENANT. to uoninal damages, and Scnihlc, That the amount of damnges was dei)endent upon the plaintiff's interest in tiio property, and whether tlie defendant, as owner of the luo- perty, couUi have immediately ejected him, after possession had heen given under the writ of restitution. AlUnach \. hciJirisny, Kunt T. 1865, Trin. T. 1866. O— Writ of K«'Mtitiitioii iiiKiHK nud Immiip. A wrist of restitution awarded under 1 Kev. Stat. cap. 126, sec. 80, should he signed and issued hy the clerk, un- der the Seal of the Court, and not hy the Ji ,ge who awards it. Ibid. 7 — Replevin — Pl4>}t iioii tcniiit — Evidence ol fraud under. It is competent l\>v an assignee of an Insolvent in lui action brought tc -eplevy goods distrained for rent to shew under the plea Oi nim-ti;mdt that the premises occupied l»y the Insolvent and for which the defendant claims rent, were conveyed hy the Insolvent to defendant to defraud liis creditors, and such fraud heing shewn, the relation of Landlord and Tenant would not exist between them so as to give eifect to his conveyance as against creditors. McLcod Assifpiec i(r., v. McGnirk, 2 Pmi. 238. l^eHMeiioid property— Wiietiier it paf^weM to A^MigiK^r under itKSiKnnient in insolvency— Kent— Liabiliijr of A<4siKii<^e (or. Si'c Insolvent Act 28. Robertson v. McLeod. Disclaimer— Evidence ol. Sec l)i8claimer. Fire— 4ileg[cd negligence ot tenant. See Action on the Cuse I. 2. Fixtures— Agreement as to. See Fixtures. 4'ovenant for improvements New lease. See Covenant 8, 9. Absconding debtor— Property seized tor rent. Sec Absconding Debtor 6. LEASE. 841 !C Oi fl'RII«l Bailifl— Liability of inndlord lor Act of. Sec Distress 3. Teiiaiit*j« KOO construed most strictly against tlir wi'itcr. See Accord and satisfaction. LETTERS OF ADMINISTRATION. See Executors and administrators. LETTERS PATENT. See Crown Grant II. 1. — Corporation 0. Scire Farias to re^ieal. See Practice IV. 4. LEW. See Execution. LIBEL. Sec Defamation- LICENSE. See Pleading — Trespass. Operation and Effkc t. 1-7. To cut Timber. 8. To dig Minerals. 9-14. To sell Land. 15. To sell Liquor. 16. to erect Mill Dam. 17. Fisher}-. LICENSE. 848 l-To cut liint><>r. A license to cut timber and remove it from lands does not enure as a grant of the trees until cut under the license. Kerr v. Cmtnell, Her. 133. >i-!Vot nNMiKiiHblts A license from the Crown to A. to cut and take away a certain quantity of timber on a certain land is not assign- able. Sharp V. McKccn, 2 Kerr 524. 3-ConveyiiiK no iiitcre»il in land— 4sKiy;iiiil»lc. A deed granting license for five years in consideration of an annual rent, to enter upon lands of the grantor, and the exclusive permission to cut and haul away any ([uan- tity of trees growing thereon fit for saw logs and timber, is a mere license, and conveys no interest in the land to the grantee, nor any property in the standing trees. Xm- llmmwick of'lieenwcc. A license in the name and under the signature of the (jovernor of the Province, and sealed with the official seal used for public documents, gives the licensee a right to cut and take away timber from Crown lands described in the license : the right of the Governor to issue such licenses being recognized by Acts of Assembly. Beckwith v. McPlie- |''"i, 2 All. 501. Qu(ere, Whether by common law a license afiecting Crown lands should not be in the name of the Queen and m 844 LICENSE. iii I under the great seal of the Province, or some other authority to the Governor shewn under the great seal for issiiinf^ it. Ibid. A licensee of crown land, with authority to cut and take away timher therefrom may maintain an action on the cube against a person who wrongfully enters tliereon and cuts the timher, in consequence of which the licensee sustaiiis damage. Beckirith v. McPIielim, 2 All. 501. 6. I^ic«>iiKc i;ruiit<>riiiii«'iit or <'niiadii— Lin- bility or tiiiibci' to M^ixiir<^ in Province of Svw BriinMU'ick— DiNpiifed t«>i'i'itory. See Crown Timber. Ti'ctipnMM— Exlcnt of Li«;fnM>. See Piescott v. Wcdton, 2 Han. 230. I'—Usage- -Evidence. Regulations providing that no timber to be cut without license from the Government, first issued. Qtuerc, Whether evidence could be given of usage to the contrary. See Coomhea v. Hutliewnij, 3 Kerv 592. 8 -To dlK niinernis— EHtnte— HiKlitM. A license from the Crown to dig minerals in granted land where the mines are excepted out of the grant, will not justify an injury to the surface soil. Genner v. Ca'mis, 2. All 695. Qiuere, Whether such a hcense, though liable to for- feiture for non-performance of the conditions, is actually forfeited without inquest of office. Ibid. A parol license from the owner of the land in which the mines are excepted, to the grantee of the mines to enter and dig them, vests no estate in the licensee, and is re- voked by a conveyance of the land to a third person. Hid- Such a license is no breach of the implied warranty iu a deed of bargain and sale, and the grantor is a competent witness for the plaintiff claiming under the grantee, in an action of trespass brought against the licensee. Ibid. LICENSE. 845 A parol asaignraent of such ii license, (thoiigli unre- voked) gives no right of entry to the assignee. Ihid. See Crown Grant, Leifell v. r}ufy. 9_To sril Iniid— Probate Court— Conclusiveness. A license to sell land granted by a Probate Court is not conclusive upon the parties whose rights are affected by it ; but it may be shewn, in an action of ejectment for the land, brought by a person claiming title under the license, that it was obtained by fraud, or without complying with the provisions of the Act which authorizes the Probate Court to grant such licenses. Jioe v. Thompson, 4 All. 483. Objection to |»roceedinij:!!i in Probate Court. See Deed I. 40. lO-Prooroi License. A license by the Governor and Council to an adminis- trator to sell land, made under the Act 26 Geo. Ill, cap. 11, need not bo under seal ; and it may be proved by a copy from tbe records of the Council, certified by the Clerk of the Executive Council under the Act 21 Vic. cap. 3. Caufihc!) V. Inman, 5 All 399. ll-:Votice— Snieot Land. A notice by executors to sell land under a license from the Governor in Council under the Act 26 Geo. Ill, cap. 11, sec. 18, must be given thirty days exclusive of the day of sale, both by posting up notices and by publication in the newspapers; but it is not necessary to prove that the notices continued up till the day of sale. Dnc dem. Pike v. Tierney, Hil. T. 1831. I'i-Livcnse to sell— Administrator^ deed— Title uii. dci— Evidence inipnK:ninfr. Where a petition to the Probate Court for a license to sell land for payment of debts contains the statements required by the Act, and due notice has boen given to th j parties interested, the Court has jurisdiction over the mat- ter ; and if a license is granted and a sale of land takes place the title of the purchaser cannot be impugned in an action of ejectment, by evidence that no debts were due by i §i'! & U-fA:W'' ' 84<> LICEN8K. i|ii tri. «l n'oiii tiiliiiiiilMli'iilor iiiKler |li<'<'iiN4> to m>II-R«>. ViNfry. A deed from an administrator under liconBo to sell for pnyment of dehts, h'.'ld good against a lioini Jidr purclinscr from the heir, though the deed of the letter was first regis- t( red and the application for license was not made till nine years after the death of the ancestor.! Senihl<\ That a purchase from the heir takes the land subject to the debts of the ancestor. Iliiil. IN'lllioii for Niilr— Noli«'«> of iiiipliriilioii. QiK/rc, Whether it could be shewn in answer to deed that no notice had been given of the application to ^adj of probates. Ibid. 13— !!ii|i:iiiiiiir«> of JiKlgc not iKMrcwNtii-y. A licenso to sell real estate need not be signed by the .Judgf of Probates : Being a judicial act, it is sullicientif it is signed by the Registrar, as the act of the Court. Dof (lem. Si7np8on v. Falls 5 ^1//. 540. 14— PInintilt cannot slicw lic«'nM<> iinpropoiiy granted b«>fan«(^ of jkinfnci4>n«*y of pci'soiinl property. In ejectment by a devisee against a purchaser from the executor under a license from the Probate Court, tbe plaintiff cannot shew, for the purpose of defeating the deed, that the license was improperly granted, because the testator left sufficient personal property to pay his debts, which had been wasted and improperly expended by the executor in unnecessary proceedings in the Probate Court, of which the purchaser (being the attorney of the iKccutor in the Probate Court) was aware : there being no want of jurisdiction shewn on the face of the petition, and such ob- jections to the license being a ground of appeal from the decree of the Probate Court. Doe clem. Sullivan v. Curry, 1 Pug. 175. LIEN. 8'17 O M'll-R«>« |.f-To M'll liquor. License need not be proved in action on note given for price of liquor. S<:c McAalcji v. Laivlor, 2 All. OOO. Prima fnvic evidence of sellin;; without license — ohuh of proof on (I'fnndant. iS'^r Evidence III. 23. IC-To <>i'4>4i «liiiii. Evidence of license. See action on the Case III. 1. ir- FIslM'ry. Sec Fishery. hiiiilM>r ciii without limiNC— License MUbNcqiiently obtained. Sev. Trover 30. LimiMT of'Crrown iii'il ob'-.d'iirjir;; I'oud — .\ot liaiile to tn'KpiiNNoi' OH ianii. Su Action at Law, IX. 33. Lif/hton v. Bohmi. M€EfV^lt:i> TAVEKN. Hec By-law. Where a building used as a dancing-room was builf, separate from a house licensed as a tavern, l)ut had com- munication therewith through a porch, and there was no other entrance to the dancing-room ; Held, That it was a part of the house, and that the proprietor was liable to a fine under a By-law of the City of St. John for allowing music to be played therein. Kx parte Ilarley, 5 All. 204. LIEN. I. Principles — Operation. II. Particulah Persons. I. Principles — Operation. 1 Where the Court allows one judgment to be set off against another, it must be subject to the attorney's lien generally, and not merely to the extent of the taxed costs in the particular suit. Rogers v. Sedden, 2 Kerr 59« /itoriieyS Lien. See set oft" 15. Abel v. Liffht. §iP- LIEN. 817 l.f-To M>ll liquor. License nood not bo proved in action on noto given for price of litiuor. So.v McAaUuf v. Lawlnr, 2 All. <»0(). Prima fneic evidence of Helling; without license — onnn of proof on (l"fnndant. -SVr Evidence III. 23. |«-To vvvvi diiiii. Evidence of license. See action on the Case III. 1. 1?- FlslM'i-y. See Fishery. Ijinibor cut without liri'iiMC— Li«roiis<> Mub«oqii4>ntly obtaiiK'd. So,,: Trover 30. Lic«>iiM'0 ofC'rowii l>i>'>>.ti'iiriiiiiifi roiid— .\ot liaiil« to tl'4'!k>|»ll<^NOI* oil ^siiid. .SVc Action at Law, IX. 38. Lif/hton v. linhnn. MCEfV^i:» TAVCKIV. See By-law. Where a building used as a dancing-room was builf separate from a housij licensed as a tavern, but had com- munication therewith through a porch, and there was no otlier entrance to the dancing-room ; Held, That it was a part of the house, and that the proprietor was liable to a line under a By-law of the City of St. .John for allowing music to be played therein. Kx parte Harley, 5 All. 204. LIEN. I. Principles — Operation. 11. Particular Persons. I. Principles — Operation. I^ Where the Court allows one judgment to l)e set off against another, it must be subject to the attorney's lien generally, and not merely to the extent of the taxed costs in the particular suit. Rogers v. Sedden, 2 Kerr 59« Xlorney's Lien. See set oft' 15. Abel v. TAght. i I 848 LIEN. St't off* of JiidBiiient in niiotlier Coiii't- B<>ii<>ficiiii hi* tcrest. See Practice XIV. 3. 2 -Consideration— Partini; \%itii lien— Pi'oinis4>. Parting with property on which the plaintiff has a lien, maj' be a good consideration for an express promise, but will not support an implied one. Hartley v. Fisher, 1 AH, 459. 3 A judgment is not such a lien upon lands, as to prevent the defendant conveying the legal title and seisin to a third person. Doe dcm. Peahody v. MeKn'ujht, Ber. ;}76. 4— !\'o claim of ii«'n -Oiticr to dciivci' UtgH. It is no objection to an offer to deliver logs that they are in possession of the owner's agent, a surveyor of lumber, who might have a lien on them, but who had not claimed any lien. Pulley v. Watcrhouse, 3 All. 291. a — Mcnioria 1. By the Eev. Stat. cap. 113, a registered memorial of a judgment has priority as a charge on the land of the debtor, over a subsequent judgment and execution ; and a sale bv the Sheriff under such execution is subject to the charge of the prior registered judgment. Mills v. Mills, 4 .4//. 45. A registered memorial is a charge "pon the real estate of debtor, who afterwards becomes insolvent and makes assignment under Insolvent Act. iSee Insolvent Act 17. Ik Vcber v. Austin. nstnU.ers lien. Qiuere, Whether such exists in this Province. See Pkading 11. 54. Allen v. Bank of New Bnutstdd. A!»!«C!>t4>|»er. See LIEUTENANT GOVERNOR. 849 toiiofirial ill- II. By Particular Person. 6-Altonioy. An attorney has a lien on a judgment by him for his costs as between attorney and cHent. Linton v. ]Vilson, 1 Kerr, 300. T-Poiid-kce|»«*i*. The legal obUgation of a pond-keeper is the same as that of a warehouse-keeper ; and in the absence of an agreement or general usage of trade establishing a general lien, he has only a special lien on timber in his possession, for his reasonable charges for the care of it. Jack v. Eagles, 2 All. 95. l-Ship-owner— Freight. A ship-owner's lien for freight extends to every part of the goods belonging to each consignee ; and the consignee cannot maintain trover for a part of the goods, which have been landed, on tendering the freight thereon, though the amount due on each package of goods may be ascertained from the bill of lading. Neill v. Rekl, 4 All. 246. Hired iiK'ii. .Sec Timber. Paiiiiiin: u'itli |>uss(>*i«ioii— Lien ioM. Sec Delivery 4. Agrecinciit g:iviii^: no lien on i>ai'tiiei*<«iiip property. See Equity 2. Application to ««et ofT judf^nient agninwt daniag:eM in other nuit — Power in <'onrt to ;(rnnt nppiieation subject to attorney's lien. See Set off 8. LIGIJTENAIVT OOVEK^OK, Right to i»!'esent to Rectory. Sec Church of England 11. License granted by, to sell land. See License 10. Salary oi— Assessment on. Sec Assessment I. 6. 850 LIMITATION OF ACTIONS— STATUTE OF. LIFE ESTATE. See Will 3, 4, 5. LIGHTS. Obslriictioii or. See Action on the Case IV. 4. See Damages I. 39. LI.YIITATIOM OF ACTIONS— STATUTE OF. I General Operation. II. Acknowledgments — Part Payment. III. Personal Actions, and Procbedinos. IV. Real Actions — Adverse Possession. .4. Right of Entry. B. Tenancy at Will. C. Tenants in Common. I. General Operation. I— Re4!ovory of ability> When the Statute of Limitations has once begun to run against a person, no subsequent disability in any one claiming under him will stop it ; thus where A. discon- LIMITATION OF ACTIONS— STATUTE OF. 851 linued possehsion in 1820, and died in 1826, having a son under age. flrlfl, That if the Statute began to run against A., his son had not ten yeuis after coming of age in which to brin^' ejectment. Doe dem. Thompson v. Marks, 3 Kerr t)o9. I —When Statute has begun to run, no subsequent in lorsement to a person whether in or out of the Province, will stop it. Bradbury v. Bailie, 1 All. 690. 5 Coverture ceasing — Action brought within ten vears after and within forty years after right accrued, tliougli not within twenty years after coming of age. Qium, Whether right barred. See Partition. (i-noi'ttfa^or and IVIortgaKon. Tlie Act 5 Wm. IV. cap. 43, sec. 2 does not apply to the case of mortgagor and mortgagee ; therefore the right of the mortgagee to maintain ejectment is not barred, tlioiigh the mortgagor has been in possession over twenty years, since the execution of the mortgage. Doe v. Dc ']\her, 3 AU. 23. tii-Riglit entry— ItEort8:age against assignee of mort" gaKor. The doctrine of Doe v. De Veher, 3 All. 28, loes not apply where the action is brought by the mort- gagee against the assignee of the mortgagor, in which case twenty years' possession will bar the right of the mortgagee. Plaintiff purchased land in 1836 which was chargeable ^itli the payment of a legacy, and took a mortgage from A, to indemnify himself against the legacy. In 1840 A. sMd the mortgaged land to the defendart who went into P'ssession and continued to occupy. In 1860 the plaintiff liiiving been compelled to pay the legacy, brought eject- W'lit on the mortgage ; Held, That his right of entry ac- crued on the execution of the mortgage and not on the l)ivach of the condition ; and that as the defendant had lieen in possession more than twenty years before action '"•ought the plaintiff's right was barred. (Doe v. De Veber •'All. 23 distinguished.) Doe dem. Falls v. Jones, 5 All. M 252. :m 852 LIMITATION OF ACTIONS— STArUTE OF. 7— AM»'igiii>o of iiioi'tgageo in pos<>«(>«<«ioii. The assignee of a mortgagee in possession in ly set up the mortgage as a defence to an action of ejectment bv the assignee of an equity of reilemption, though tlie mortgage is more than twenty years old, and the right to recover thereon is barred by the Statute of Limitation. Doe v. Hanson, 3 All. 427. S— Di!«Hbiliiy— liiwaiio person— Death. Under the 1 Eev. Stat. cap. 141, sec. 11, (Con3ol Stat. cap. 84,) an action may be commenced against the person- al representative of an insane person, within the like period after the death of the insane person as is allowed forbrinf. ing the action in ordinary cases — death being a removal of the disability. Inirivcather v. McMonaijle, 6 All. 297. 9- Persons beyond seas— Kig:lit of action. The right given by 1 Eev. Stat. cap. 139, sec. IG, to persons beyond seas to bring an action for the recovery of land within ten years after the disability ceases, does not suspend the right of action during the person's absence. Doe clem. Fitzgerald v. Maxwell, 6 All. 233. II. Acknowledgments — Part Payment. See x\cknowledgraents. 1— No promise to pay— Acknouiedgnicnt iH<>>iilii(>i('iit. A mere acknowledgment of a debt by an administrator is not sutlicient to take the case out of the Statute of Limi- tations ; there must im an express promise to pay; and, if there is more than one administrator. Senihle, That the promise should be by all of them. Gibbs v. Seicell, Trin. T. 1833. tl— Afilrniative evideiiee of payment neco»««ar). Where part payment is relied on to take a case out of the Statute of Limitations, it is the duty of the [daintiflftn give artirmative evidence of such payment, and if the evi- dence is doubtful and the jury find against the piaiiitifTtlie verdict will not be disturbed. Charlotte Co. Ihtnk v. Iknii, 5 All. 520. LIMITATION OF ACTIONS— STATUTE OF. 853 3-Title— Stntement in petition. A statement in a petition by defendant to the Probate Court for letters of administration, that certain land in his possession belonged to the intestate, on which petition letters of administration were granted to the defendant, is a sufficient acknowledgment of title to the heir of the in- testate, to prevent the operation of the Statute of Limita- tions. Doe (km. Speiice v. Wellinf/, 6 All. 470. (fkiiou l('«l|U!;iiiciit of iioldinK laud. See No. IV. 19. 4-Beroi'c Extingiiisiiinent of riff ht. An acknowledgment under section 13, 6 Wm. IV, cap. 43, to |jrevent the operation of the Statute of Limitations, must be made before the plaintifif's right is extinguished by t'le '2nd and 27th sections of the Act. Doe v. DeVeher, 3 Mi 23. Payment on account. Sa' Bills and Notes V. 24—27. ^-Verbal oltor to Lease— Bidding: at sale. A verbal offer by a person in adverse possession of land ti) lease it from the owner, or bidding for the land at an auction of it by the owner, is not an acknowledgment of title, within the Statute of Limitations. Doe v. Hassan, 3 Ml 451. <> Piiyincnt by iiiortKagoi — Sale oi Equity of Redemp- tion. S. mortgaged land to the lessor of the plaintiff in 1837 m\ made payments on account from time to time, the last payment being in October, 1843. In 1812 the equity of redemption of S. was sold at Sheriff's sale by a judgment ''editor, and the defendant claimed under the purchaser. ^/'W, That notwithstanding the sale of the equity of re- lemption, the payments by S. kept the mortgage alive for twenty years from the time of that payment by 1 Eev. ''tat. cap. 131), sec. 30, and that the mortgagee could re- ^'^ver the possession. [See Ckinnery v. Evans, 10 Jur. N. ■^•«55.i ]joe dcin. Fox v. Wright, 6 All. 241. m lliltl 854 LIMITATION OF ACTIONS -STATUTE OF. 7— Lictter— Ackiiou'lcdifnient— InMiltlrieiiry. A letter written by the maker of a note (against wliicli the statute had run), to the payee, in answer to an appli- cation for payment stating that it was not in his power then to do anything in the way of payment, is not sufficient to take the case out of the Statute of Limitations. Chm- lotte Co. Bank v. Uoss, 5 A U. 627. III. Peusonal Actions and Proceedings. Constables— Railway Act— Time in \vlii Entry Dork«>t—Wi'it issued in time to snvo ^tntiitv— Leiti'c Kiveii to die Entry Docket iihik' pro tunc. See Practice III. 4, Taylor v. Geroic. IV. Real Actions — Adverse Possession. Rebuttal of plaintiff's title. Sec Ejectment I. 4. I-Qiiestion or Tact of adverse possession should be left to Jury— Previous Act of Assembly. Where A., Oi/eiiie sole was, previous to her marriage, in the actual occupation, jointly with her brother, of lands which descended t( hem from their father, and upon her marriage, left the possession in her brother, who occupied more than forty years, paying during that period, all taxes iind charges thereon, and receiving all the rents and profits. lldd, hi ejectment brought by the heirs of A., that under the Act G Wm. IV, cap. 43, sec. 14, which provides — that if at the time of the Act coming into operation, the possession IS not adverse, the right of entry should not be barred for live years, — the question of adverse possession should be left to the jury to determine, and that it should be decided according to the law as it stood when the Act came into operation. J)oe dein. Cole v. Harper, Ber. 289. <-€onlinc4l to what!— Evidence ot Possession— Unini provcn' -m. 856 LIMITATION OF ACTIONS— STATUTE OF. If repeated acts of trespass on wilderness laud will con- stitute a possession of the land, it is necessary in order to make out such adverse possession of twenty years as will bar the right of the owner under the Statute of Limitations, to shew a sufficient number of such acts before the com- mencement of the twenty years. Ibid. The grantee of the Crown, according to the ordinary mode of granting the wild lands in this Province, being deemed ;;/• J wa ./ac J c in possession of the land granted when there is no adverse occupant, it is sufficient for a plaintiff in ejectment, who claims under a grant to his lessor more than twenty years old, to shew that the land within that period remained in its natural state and uninclosed. Ihhl. 3 A being seized of a lot of land, died intestate in the year 1811, leaving five children. B. his second son, took possession of the land, and exercised acts of ownership over the whole of it until 1824, when he conveyed it to the defendant, who afterwards occupied it. Held, that B.s possession was riot limited to his undivided share, but ex- tended over the whole lot, and that after twenty years the right of the heirs of A.'s eldest son was barred by the Statute of Limitations. Doe v. Allen, 2 All. 191. 4— Continuous possession. The plaintiff's father conveyed him a farm, on an agreement that fifty acres of it should go to pay a debt of the father. The debt not having been paid, the fifty acres were sold by the Sheriff with the plaintiff's consent in 1824, and purchased by C, who had the boundaries mark- ed with the plaintiff's assistance. C. several years after sold to the defendant, who held up to the same line until 1851, without objection by the plaintiff. Held, That there was a continuous possession of the whole fifty acres for up- wards of twenty years in C. and the defendant, which gave the latter title to the land. Doe v. Baxter, 2 All. 377. ♦5— Necessary facts to constitute adverse possession. In order to constitute an adverse possession of land, it must be exclusive, continuous, and clearly defined : there LIMITATrON OF ACTIONS— STATUTE OF. 857 must be something to shew the person having the legal title, that a possession has been taken of some definite portion of the land hostile to his title. Doc clem. Mayor dr. of St. John V. Littlchale 5 All. 121. Where the land above high water was granted to one peMon, and the beach in front, between high and low water mark, to another, the merely passiu^^ r ver the shore with boats at high water, or the landing boats on the shore at low water by the proprietors of the land above high water mark, and passing to and fro over the beach for a period of twenty years, does not amount to a possession ; there being nothing to define a possession of any particular portion of the land, and the acts being consistent with the exercise of a public right of passage when the beech was covered with water, and, with an easement in the proprietor of the ad- joining laud when the beach was uncovered. Ibid. 6-Posscssioii— Survey. An entry or survey of land by the owner is not such a possession as will prevent the operation of the Statute of Limitations, 6 Wm. IV., cap. 43, or divest the possession of one holding the land adversely at tlie time of the entry. Dwv. Hiisaon, 3 All. 451. 7-E\teiit ol' |>o!d i'«>iiiaiii«lci'. A. being indebted, conveyed land (pai'tly wil lerness) to the plaintiff in 1822, and two years afterwards, in order to pay the debt, caused fifty acres of the land to be sold at auction by the sheriff, with the plaiutitf's consent, and B. purchased it : the plaintiff bid at the sale, signed the Sheriff's deed as a witness, and assisted B. in running the division line between the fifty acres and the remainder of the land towards the rear of the lot ; B. sold to the defend- ant in 1835, and the plaintiff then continued the division line to the rear ; and occupied up to it for several years. W(W, That as B." entry was not wrongful, his actual possession of a part (there being no other possession of thf remainder) extended to the whole of the land described in the deed, and that the plaintiff's right was barred at 54 Sf , If f^ll' •!■ 'uH 858 LIMITATION OF ACTIONS— STATUTE OF. the expiration of twenty years after B.'s entry. Held also That the Sheriff's deed was properly received in evidence as part of the res (/estre, without proof of any judgraeut or execution to warrant it. Doe v. Baxter, 4 All. 131. 8 The vendor of part of a tract of land sent a sur- veyor to lay it off for the purchaser (defendant). The sur- veyor pointed out a tree to the purchaser as his boundary, up to which he took possession, and occupied upwards of twenty years. Held, That he had acquired a title by posses- sion up to that tree, though it did not correspond with the description in his deed, which deed was prepared from a plan of the survey made by the surveyor after he laid off the land and the principal part of the land was wilderness, the jury having found that the defendant's possession was up to the tree. Doe dem. Robinson v. Chase, East T. 1864, 9— Acts— IVIr »tliei' ot possession or tresimsm—QiicMioii le&t to jury* In trespass for taking grass, plaintiff proved that she and her deceased husband had cut the grass on the \orm in quo, (a wild meadow — the grass being wild and natural,) for upwards of twenty years : there was no fence on the land, or any ocher act of possession shewn. The defendant had the legal title to the land and lived on the front of the lot, — about four miles from the locus in quo, — occasionally cutting lumber on the rear of it near the meadow, and browing his lumber thereon. It was left to the jury to say whether the several acts of cutting the grass hy the plaintiff were acts of possession, — claiming it as a right,- or mere act of trespass ; and the jury found in favor of thi defendant. Held, No misdirection. Poiver v. Howie, Mick. T. 18C4. 10— Continuance or possession— Cliui-actei* of lioldiii^' — Oi'iginni claim— Rebuttal ol presumption. Defendant went mto possession of land under an agree- ment to purchase^' from his brother. W. the plaintiffs father, paid the purchase money, built a house and occu- pied the land. After the death of W., the plaintiti', then an infant, 5 years old, went to live with the defendant on iss-Qiu'slion LIMITATION OF ACTIONS— STATUTE OF. 85» tiie laiul, and was maintained by him for a number of vtars. Jlcl'l, (N. Parker and Wilmot, J. J., disientienti- Mw That the presumption was that the defendant con- tinued in possession under his original claim of right, and that tht plaintiff's living with him on the land, did not necessarily destroy that right ; but that such presumption at right might be rebutted ; and, that it was a question for the jury wbetij.^r certain acts of the defendant after W.'s death, shewed th»',t he was holding the property as his own. or lor the benefit of the heirs. Per. N. Parker and Wilmot, J. J. — That the plaintiff's occupation on the land must he presumed to have been in his character as heir of W., and that it was not a question for the jury. Doe dem. Upoary. Welling, d All. 470. (oiiiiiiiiiiiice of possc»»sioii by widow alter death ol liiiMmiid— For whom h«><giMered deed— Acts ol possession necessary— Entry under deed or as trespasser. There is a distinction in the character of the possession where a person enter on land under a registered deed, and wliere he enters without any claim of right. It should be left to the jury to say whether the entry was made with the intention of taking possession under his deed, or as a mere trespasser. The mere fact of a party having a regis- tered deed of land, does not operate to give him possession 01 the land therein described, without shewing acts of possession. The Madras Board v. Ryan Mich. T. 1864. 14-Dofiiicd boundaries— Possession ol part— Inten- tion-Title to wiiole. It a person enters on land under a registered deed, with detiued hoimdaries, with the intention of taking po^jession as owner, and not as a mere trespasser, he may be con- sidered as taking possession of the whole lot described in the deed, and not merely of that part actually occupied or enclosed; and such possession, if continued for twenty yeav«, will eive a title. It is a question for the jury, with 860 LIMITATION OF ACTIONS— STATUTE OF. what intention a party enters on land. (Per Piirkt^r, Wilmot and Ritchie, J. J., Carter, C. J., and N. Parker, M. R., disaenticntihus.) llvmphries v. Helms, 5 All. 59. IS—Actti <1oii« by |»4>rM»iiK rIaliiiiiiK tlllc. Acts which in the case of a person who enters on land without claim of title, may be treated as mere acts of trt «• pass, may, when done by a person under claim of title, he considered acts of ownership. Ihid. PoMscissioii of pliiiiitiflf— Wlivllicr HinoiiiiiiiiK «• il<>nt «>viiiec nw to i>o«M(><«Kion— Vi^i-din ot Jury for nil liiit iHi|»rov«Ml land. Ser New Trial III. 49. 14— Possession of part or lot— Construct! vc possco^ion or wiioie— Adverse possession. The constructive possession which a grantee in pos.-es- sion of a part under a registered deed describing a lot ot land by metes and bounds has of the whole lot, is not sutti- cient to give him the title to any portion against one wlio has had for a lengthened period the active and continuous possession. /><>(' dent. Van Buskiik v. Corncy, 2 Pikj. i'i'i. IfS— l%'o Documentary or otiier title— Possession- riiid- iug of Jury not interfertMl witii. As between parties without title, each seeking to make a title for himself, the court will not interfere with tlif finding of a jury unless clearly and unequivocally wrong, Eastchroohs v. Brain, 2 Pug. 304. 16— Husband and wife— Parol gift to wifc-Po*-**- sion under— Title In wiioni. Where there was a parol gift of land to a marrif.l woman, and the property was actually occupied by tut husband of the donee and worked by him, she residing witii him as his wife. Thhl, That the wife could acquire no title by such a possession either against her husband or the donor — the title so acquired would be the title of tbel)usbami. Qiuere, Whether where a party gives land to another by parol and puts him in possession, this might not be considered J! ' 1 iiiliiiK to n— Vcnllri ol ivc |»osst'>»xi»ii %vite-Po«i«'«'*' LIMITATION OF ACTIONS— STATUTE OF. 861 a discontinuance of the owner's poHsettsion, and the Statute of Limitations begin to run at or-^e, and not at the end cf the year. />"' dem. Vincent v. Miirniif, 2 Pu{/. 375. A. Right of Entry. l7-.4iri'<'ciii('nt— Tciiniiey nl Mill— Hcii'M. A. the owner of land, put B., in possession in 17S)1> iimltr an a^nvmeut to purchase. In 18'2(>, the heirs of A. iliiuaDilcil possession of the hind from B. who refiist.'d to give it up. Held, That by entry under tlie agreement, B. lieeame tenant at will to A.; that under the Statute of Limitations 6 Wm. IV. ca^i. 43, such tenancy terminated at tile end of one year after B. went into possession ; and tiiiit the action not having been l»rou<^ht within twenty }vai5 tlu-reafter, the right of the [uavh was barred l)y tlio Statute- l>i>e dein. I'tirdif v. Pttcrn. Her. 3.">(). 1^ Entry of ou'iK'i' Willi <-oii*>«'iil of K'liaiil. Dt't'endant went into possession of land as tenant at will to plaintiif, an(i remained in p^issession upwards of twenty years. Held, That such tennncy whh not deter- mined by (in entry of the owner within twenty years with tilt- 1 oii.st'iit of the tenant for thi- [)urpose of running the liiiH iR'tween his possession and the adjoining land, and tliei'tfore that the plaintitf's right ot entry was l)arred by the Statute of Limitations. I)h' ■I-.h. llit^f'nrl w Till, 6 Ml m. l!)-Psi)iiiciil oil at'4'oiiiit ol' iiioi-tKa^:c>— I'lii-clitiMcr ol Equity of Ke«loiii|»tioii— Artioii br<»ii;|jfiit witlii.. twenty ycai-!» of payaiK'iit. S. mortgaged land to the lessor of the plaintiff in 1837, ami made payments to him on account from time to time -the last payment being in Octoi)er IH-fS. In 184-2, the siuity of redemption of S. was sold at Sheriff's sale, and tile defendant claimed under the purchaser from the Sheriff. i'd'L That the mortgagee could maintain ejectment for the laud within twenty years after the last payment by S. I^"C'k,n.Fo.c\'. (Fn////^(j 4//. 241. ?3 862 LIMITATION OF ACTIONS -STATUTE OF. 120— Female infant — IVIaiiiaKe — Hnsbnnd bound to brinif action within twenty years after lipiu of entry of infant. A right of entry accrued to a female infant in 1820, and in 1830, a few months before her infancy ceased, she mar- ried the plaintiff, who brought action to recover the land in 1848. Held, That he being under no disability, was hound to bring his action within twenty years after her right of entry accrued, and therefore that his ri^ht was barred. Starkie v. Parkes, 1 All. 556. Semhle, That though the husband's right was liarred by the Statute of Limitations, that of the wife was oulv suspended during her disability. Ihkl, 31— Devise to widow for life— Children^ right of ciiti}, A testator, after directing that so much of his estate as was necessary should be sold for payment of his debi<'«>«>ioii. A grant of land from the Crown, under the yreat s^tal, with a plan of survey annexed, conveys seisin to tlif graiDtee, and his possession will prima facie be deemed to continue while the land remains unoccupied and unim- proved. Held, therefore. That an adverse possession of ten years in the defendant would not bar the entrv of tl)e lessors of the phiintiff, who claimed as heirs of the grantee under a grant made in 1785, the land being shewn to re- main unoccupied until the time of the defendant's posses- sion. Doe dem. Kimpson and icife v. Craft, 1 Kerr 546, 23— Kiifneicncy of adverse [possession — Ackiioivlrd- nient of iioldiug. Where land was granted by the Crown to L. S.. who LIMITATION OF ACTIONS— STATUTE OF. 863 let F. into possession over forty years ago, and F. had ac- toowledged that the land was held by him under L. S. and his heirs, and had paid rent to the widow of L. S., and had also in 1822 agreed with one of the sons of L. S. to hold the land until it was called for by the owners, and had shortly after died in possession. Held, That the defen- dant who had come in under B., -^ho obtained possession from the widow and family of F., had not such an adverse possession as to bar the entry of the heirs of of L. S. Doe (Jem. Straufiery. Thompson, 1. Kerr 564. Coverture ceasing, action brought within ten years and within forty years after right accrued, though not within twenty years after coming of age. Qiuere, If sufficient. See Partition. B. Tenancy at Will. i4-Detei'iniiiation of tenancy. In ejectment, the defendant, by virtue of the Act of Limitations 6 Wm. IV., cap. 43, sec. 7, relied on a tenancy at will, created more than twenty years before the com- mencement of the action. Held, That cutting down and carrying away wood from the premises in quesdon, and making surveys upon it, and any such entry without the consent of the tenant at will, would operate as a determin- aiion of the tenancy. Doe den. Lifoii v. Slmn, 3 Kerr 'M A person taking possession of land under an agreement to purchase, which specified no time for the continuance of the possession in the event of the pur- chase not being completed, becomes a tenant at will; and such tenancy must be terminated by some act of the par- ties before he can be ejected on non-completion ot' thi purchase. Doe v. Denny, 3 All 50. The Act 6 Wm. IV., cap. 43, sec. 7, does uot ap[)ly to such a case ; but only to questions arising under the Statute of Limitations. Ibid. 26^ T. p. put C. in possession of land to hold for Hm and keep trespassers off, with liberty to cut the i^rass and fire-wood upon it: C. held it until his death in 1821 864 LIMITATION OF ACTIONS— STATUTE OF. (nearly thirty years), but never claimed it as his own ; on the death of C, his son D. succeeded to the possession and continued to hold the land as his father had done till T. P.'s death, and afterwards for W. P., the son, and one of the heirs of T. P., until 1844, when he conveyed it to C. P., a son of W. P., under whom the plaintitf claimed by a deed dated in 1856. The defendant claimed under J. P., a grandson and one of the heirs of T. P., who entered on the land after the conveyance to C. P. in 1844. Ilch], — 1st. That C. was not a tenant lor years to T. P., sulyect to a rent service, but at most a tenant at will, and that such a tenancy terminated at his death in 1821; 2nd. That the holding by I), created a new tenancy at will between him and the heirs of T. P., which terminated in 1823, and that at tlie expiration of twenty years thertfroui the right of T. P.'s heirs was barred, and D. had the tie simple — the five years allowed by the 14th section of the Statute of Limitations, 6 Wm. IV., cap. 43, having expired on the 1st January 1842 ; 3rd. That as the plaintiff, being the heir of C. -P, might claim by descent, the Judge was right in refusing to leave to the jury, whether at the time C. P. conveyed to the plaintiff, he was not disseised by the entry and possesssion of J. P. Doc v. McOloyn, 4 .1//. 189, See Supra I. 2. *27— Ari'Siii^4'iii4>iit Willi party iiiiikiii^: liiiii tcitaiit at will— Owner eiiK'riii^^ — ExrliiNivf |»o<»f»$»ioii of parti Where a party was allowed to enter on a lot of wilder- ness land, with the privilege of clearing and cliojiping a portion of it, but under such an arrangement as to the remaining portion as would make him a tenant at will of the whole ; but the owner also entered from time to time and cut and dis[)osed of the timber. The Statute ot Limitations was" Jn'Jd not to run in favor of the tenant except as to the part exclusively occcupied by him. Dik dcm. McKeiizic v. Mn'^her, 2 Piu/. 355. tIS— D«>t4>riiiiiiiiiK t<>iiaii4'.v. Any act upon the laud by the person having title for LIVERY OF SEISIN. 865 9 own ; on Tfliich he would be otherwise liable as a trespasser araounta to a termination of a tenancy at will. Doe clem. Botsford V. Tidd, 5 ^iL 569. C. Tenants in Common. As between tenants in common, the right of •iO- one tenant to bring ejectment within five years of the Act of Limitations (6 Wra. IV., cap 43) oaking effect, is saved u> tiie sixteenth section, where the possession was not adverse according to the law existing at the time when the Act took effect. Doe deni. Williams v. Learitt, 2 Kerr, 83. 30 A., being in possession of land as tenant in common with his brother and sister, went away from the property in 1820, leaving his mother, brother and sister in possession ; the defendant married the sister and bought the brother's share in 1824, but tbo brother remained in pos-ession until 1881, receiving the whole of the profits tor the purpose of supporting his mother — to which all the family considtred themselves bound to contribute. A. died m 1S2G, leaving a son, the lessor of the plaintifi', under agr, wiio brought ejectmeut in 1840. lli'ld, That up to l8:31. there was no exclusive possession in an)' one of the teiuuits ui comuion to bring the case within the Act 6 Wi... IV., cap. 43, sec. 12 ; that tlie statute did not begin to run against A. in his life-time ; and that the right of tl'-' lessor of the plaintili' was not buircil. ])nc dem 'rifiitjiHon v. Mariis, 3 Kirr (iol). >'■'' Bonds — Bail- ie I ill IT BOKD. —Practice. LIQIOUS. Sail' ol-^RcMi-aiiiiii^^ of. Sic 13. N. A. Act. 4 oiivictioii f'oi' »(>lliii^ willioiit Ii<-«>ii«i4> Sfv Justice of Peace. LIV£HV Ol !«CISI'^ !«. <*t'i!*iii. See Crown Grant II. 4. 866 LUNATIC. Allowing party to g[ivc i^vidence or »»«i$iii. See Evidence VIII. 12 a. Party in possession— Presumption of livery of sei«iiii, See Deed I. 20. Fact ot Seisin— Circumstances. In order to shew livery of seisin under an unregistered deed, the prantee shewed that after the deed was delivered he and the grantor were passing by the land, when the latter said to him, " Here is your estate, it don't belong to me — I have deeded it to you," and that the grantee took hold of a part of a building on the land, and said he thought he would repair it, and put tenants in ; and that he after- wards exercised ownership over it. The grantee afterwards became insolvent, and in the schedule of his property, tiled pursuant to the Act 7 Vic. cap. 32, this property was omitted. Held, That the jury -were warranted in coming to the conclusion that livery of seisin had been given. McLardy v. Flaherty, 3 Kerr 455. liocal Legislature. See B. N. A. Act. LOCVS J^TAMDI. Right to have— Contesting title. ^, See Practice in Equity K. 4. ^^s»;i, LOI§T It E CORD. See Judgment I. 6. LIJJ\ATIC. Setting aside proceedings against. See Practice VI. 15. Dee«l of. Src Dred 1. 35. Disability. See Limitations — Statute of, L 8 — Fairweathcr v. .Uc- Mond'ile. Lunatic^s estate— Committee ol— When action ngiiinoi not sustainable. Set Action at Law IX. MALICIOUS AREEST AND PROSECUTION. 867 1IAOISTR.4TE. See Justice of the Peace. iviALiri:. False return ot iVIciiibcr— Prooi of actual malice necessary to sustain action against Sli«>rin for milking. Sue Election Law. Practice of striking out names of persons retnsiiig to take oath admissible in qnestion of mali<;<>. See Evidence III. 7. Reiristrnr refusing to register. See Pleading I. 56. Proof of— When nnneccssary in qnestion of negii- genre- See Action on the Case II. influence of malice. See Criminal Law II. i — Malicious Arrest. &c. .1IALi€10US ARUEST AlVD PROSECUTION. Reasonable and Probable Cause. Arrest. Proof of signature of defendant to affidavit unneccssai-y, if arrest made by his procurement. See Evidence VII. 5. Excessive damage— IVc%v trial not granted iinl«>s« damages outrageous. See New trial III. 11. Malicious Prosecution. I-Evidence— Copy of indictment. A copy of an indictment certified by the proper officer, though improperly obtained, is admissible in evidence in an action for malicious prosecution. Heaiiy v. Li/nn, Bir. 27. 2-Prosecutor. Defendant charged the plaintiff with stealing, on which lie was indicted at the Sessions, and acquitted. The pro- secution was conducted by the Clerk of the Peace ; out the Qefendant consulted with him, and procured the attendance fHJ 868 MALICIOUS ARREST AND PROSECUTION. of the witnesses. Held, Sufficient evidence that the de- fendant was the prosecutor. Burgoync v. Moffat, 5 All. 13. 3— i^lotivc. Any motive for a prosecution, other than that of wish- ing to hring a guilty party to justice is evidence of malice. Retaining the Clerk of the Peace to prosecute an indict- ment against the plaintift', before the Sessions, together with the conduct of tlie prosecutor before and after, an proper matters to be left to the jury on the question of malice. Alward v. Shavp, 1 Han. 286. 4 Any motive for a prosecution, other than that of bringing a guilty party to justice, is a malicious motive. ^lalice may be inferred from the want of probable cause; and the inference is strengthened where the defendant does not come forward as a witness to rebut it. Biir v. Moffat, o All. 13. 5— Froci'cdiii^^ a^:aiiiMl paity l>y ^iiiiiiiioiim iilKcu>iit without wai-fiiiit. It is not essential to the maintenance ot an action for malicious prosecution for a crime, that a warrant should have been issued against the plaintiff and that he should have been arrested. It is sutticient tluit he has been [iru- ceedeil against by suunnous uu the defendant's cumplaint. Where the declaration alleged tliat a warrant had beeu issued against the plaintiff, auil that he had been arrested on the charge, an amendment was allowed, substituting therefor, that a summons had lieen issued by a Justice of the Peace and served upon the plaintiff, and that he at- tended before the Justice in obedience thereto. Vbici'iitx. Wrst, 1 Han. 290. (i— Dctaiiiiiif^: debtor, after payment ot debt. An action will not lie for maliciously, and without pro- bable cause, detaining the plaintiff in prison after payuicut ot the del)t for whicli lie was arrested, unh^ss a legal detL-r- mination of the suit is shewn; or the plaintitt' had berii ordered to be discharged by the Court. McPhdiin v. II W don, 5 All. 358. iScc Action at Law. MALICIOUS AKREST AND PROSECUTION. 869 it» <>>iiflici<'iit Reasonable and Probable Cause. f — Pi'ocee is conflicting, the Judge cannot determine the question of " reasonable and probable cause." Vineent v. Went, 1 Han. 290. lO— Verdict— tliicertaiiity as to g^roiiiids ot fiiidin;;' Where the evidence of want of probable cause was such, that it should have been decided by the Judge against the defendant ; but he left both that and the question of mahce MANDAMUS. 871 to the jury, who found for the defendant, a new trial was amnted ; as it could not be known whether the verdict was criveu on the ground that there was probable cause (which would bave been contrary to law) or that there was no malice. Hiifihson v. Keith, 5 All. 59, Policeman— ActiiiK in bona fide bcliel of duty. Sec Action at Law XL ll-nalicions prosecution — Termination of proceed- iufts. Defendant made complaint before a magistrate that the plaintiff had threatened to shoot him, whereupon a warrant was issued and the plaintiff arrested and brought before the magistrate, who, after hearing the parties, dismissed the complaint. Held, in an action for malicious prosecu- tion, That there was evidence of the termination of the proceedings before the magistrate. Malice is not a ques- tion for the Judge to determine. IVassoii v. Taylor, 1 Han. 102. liOdtfiiij; complaint before .luMice. See Trespass V. 14, Broirn v. Moore. ITIALI€IOiri§ lIVJURIESIj Sec Criminal Law. "^l/i % ITIAi%DAIfIlJ!!i. A. When Granted. To Inferior Coilrts— Corporation— To enforce Contract —Alternative Mandamus. B. When Refused. To Inferior Courts — Corporation — General Sessions — Tustice of Peace — Foundation for Application — Affidavit entitling of— Return to — Other Remedy — Mandamus Retused. C. Miscellaneous. A. When Granted. '-To inferior Courts— To enter Judgineiif. A mandamus will issue to compel the Court of Common 872 :>iANDAMUS. II '1i^llll[ ^'iil^H^^H Pleas to enter up judgment on a verdict, the Court havinfT no power to grant a new trial. Ilex v. Justices of Northian- herland, C. Ms. 8. a— To try <*aiise. Where the presiding Justices of the Common Pleas, who were also Justices of the Peace, refused to try a cause because from * .leir position and knowledge as Justices of the Peace, they believed that the defendants ^who weiv a committee of the Justices) had contracted with the ijlain- tiff in their public capacity for the performance of pulilic work; the Court granted a mandamus to the Justices )f the Common Pleas generally, to try the cause. Ex jiu-u Leonard, 1 All. 2(59. 3— To perfect jiKl^j^iiiciit. The lu'ovisions of the Act 35 Geo. III. cap. 2, are im- perative as to tile time within which a defendant may a[i- pear in the Inferior. Court in a suit, and if he does not aii- pear within such time, he cannot afterwards be let in to defend, and the plaintiff is entitled to a mandamus to per- fect his judgment. Ilex v. Justices of York, Hit. T. 1831, 4— Corporiitioii. A mandamus lies to the Corporation of St. .John to com[)el thrni to collect a moiety of the amount assossei an^l apportioned by the Commissioners on the parti-s benetitte.. by the extension of a street, under the x\et i^ Vit;. can. 44. /•. /■ parte Jmn s, 5 All. ^H'^. •l— To <'iiroi-<-«' coiili-nct — Fiililic work. x\ mandamus lies to enforce a contract entered into liv a person with public othcers for the performance of p.r'iie work, on which he has the legal right to the money, bat nu legal remedy by action, though a third party was secivtly interested with him in the performance of the work, ;iii 1 claims the money under an arbitration to which they :niil submitted their disputes. Re'. When Refused. 7-lDlerJoi' CJourt— Entering: Judgment. The Court will not grant a mandamus to the Justices of an Inferior Court of Common Pleas, requiring them to enter up judgment for the plaintiff in an action of recog- nizance of bail in that Court ; when such Justices had in the exeicise of their discretion set aside the plaintiff's judgment and allowed a render of the principal. Sedden V. Russel, Ber. 217. X-lnrerior Court— To award Costs. A mandamus was refused to compel the Court of Common Pleas to award costs to a plaintiff in an action on a bond after a verdict in his favour — it being a summary action, and the pleadings subsequent to the declaration being special and not according to the summary Act 12 Vic. cap. 40. Ex parte Gnffith, 2 All. 93. Qv(ere, Whether the jury had power to try such an issue. Ibid. ^-(Corporation— To issue notes. The Act 18 Vic. cap. 6, authorized Commissioners to 5S 874 MANDAMUS. convey water into the Town of Carleton from certain lakes and for that purpose to purchase the water rights, a por- tion of the lands round the lakes, and the lond necessary for laying down water pipes, to distribute the water in the town and carry otl" waste water ; and in order to pav for the water rights and lands taken, and for the construction of all necessary works and all incident expenses, the Corporation of Saint John were authorized and required on the requisition of the Commissioners, to issue from time to time, notes or certificates of debt to an amount not exceeding 4'25,000. The Commissioners entered into a .ontract for laying down the pipes and conveying the water from the lake into the town for t'23,0()0, and required the Corporation to issue notes for that amount, which they refused. Held, That as it was not shewn that the Commissioners had not made any arrangements for carrying out the other provisions of the Act, or tiiat the balance of the sum limited would be sulMcient for that purpose, the issuing of the notes was discretionary with the Corporation, and that a mandamus would not be granted. Ex parte Coster, 3 All. 349. lO— Oeiieral Sc!^$»ioiis— To pay Toi* work— Shorifl. A mandamus was refused to compel the General Sessions of St. John to pay for work done at the gaol by direction of the Sheriff, it not appearing that they had authorized the Sheriff to have it done. Ex parte Thomus, 5 All. 366. 10 a Mandamus refused to compel Magistrate to proceed in a criminal cause at suit of private prosecutor. See Regina v. Ducaney, 1 Han. 571. See No. 14. Il<>-Coiuiiiissoiiers of Sewers— Damage— Foundation for application against— Compliance' with Art- Powers under— Request— Demand. The Act 2 Wm. IV., cap. 26, incorporating the St. John Water Company, authorized them to draw water from, erect reservoirs on, and carry pipes through private property, provided that no such water should be drawn, MANDAMUS. 876 etc., without compensation being paid for the use of the same, and for any damage sustained l)y the operations of the Company, and in case of disagreement between the Company and the owners of the land, the com- pensation to be determined by arbitration ; and if the owner of the property should decline to appoint an arbi- trator, the Supreme Court, on application of the Company, should issue a warrant to the Sheriff to summon a jury to aHsess the amount to be paid. By Act 12 Vic. cap. 51, further powers were given to the Company to enter on private property, erect dams, and draw water from any stream, on paying compensation to the owners — tlie amount to be determined as by the Act 2 Wm. IV., cap. 26. After the passing of this Act, the Water Com- pany erected a dam upon a stream flowing through private property, laid down pipes and diverted the water from its natural channel, without the consent of the owners. By Act 18 Vic. cap. 38, all the property, rights, powers and privileges of the Water Company were vested in Commis- sioners appointed under this Act, saving to all parties all rights, remedies and actions, for any act done, or for any contract theretofore made, and giving the Commissioners power to lay down pipet, etc., for extending a supply of water; and providing that in case of damage done in tlie execution of the works, the Commissioners should pay the party sustaining the same, such compensation as should be agreed upon, and in case they could not agree, the Com- missioners should, on request of such party, apply to a -Tus- tice of the Peace for a warrant to the Sheriff to summon a jury to assess the damages. The Commissioners continued the obstruction placed on the stream by the Water Com- pany, and laid down additional pipes, drawing off a much larger quantity of water. A., claiming as one of the heirs of the former owner, then gave notice to the Commissioners that he claimed damages under the Act 2, Wm. IV, cap. 26, and the several Acts in amendment and incident there- to, for abstraction of the water by the Commissioners, and requested them to take the necessary steps for summoning a jury to assess such damages. The Commissioners de- m 876 MANDAMUS. clined to take any steps, and A. gave them a further notice, stating that they had refused to agree upon the amount of compensation for obstructing the stream and diverting the water, and requiring them to take the necessary and legal steps pointed oii<; by the Acts 2 Wm. IV. cap. 26, 12 Vic. cap. 38, or any of them, for determining the amount of compensation to be paid for all or any damage which he was entitled to receive in his own right or in behalf of the other heii's, as well for the acts of the St. John Water Company as of said Commissioners. The Commissioners declined to take any proceedings on this application, stat- ing that they were not aware that any damage had been done to A. by their operations. Held, on application by A. for a mandamus — 1st. That the Commissioners were right in refusing to act on the first notice — the mode of proceeding under the Acts 2 Wm. IV. cap. 26 and 12 Vic. cap. 51, being by arbitration, and not by a jmy ; 2nd. That the Commissioners had no power to act under the 2 Wm. IV. cap. 2G, even if they had been requested to take the proceedings pointed out by that Act ; 3rd. That as all rights and remedies against the Water Company were pre- served by the 18 Vic. cap. 38, the Commissioners were not bound to apply for a jury to assess damages for the acts of the Water Company, as required by the second notice ; 4th. That without showing who the other owners of the property were, and how A. was entitled to claim on their behalf, a mandamus could not be issued to assess the damages due to them, but must be confined to A.'s interest in the land; 5th. That it was sufficient for A. to show by his affidavits a prima facie case of title to the land, and that he need not produce his deeds ; 6th. That the allegation of the with- drawal from its natural course of a large quantity of water from a stream flowing through A.'s land, showed a prm facie case of damage to him ; 7th. That a demand in the alternative, to do one of two things, and a general refusal, was sufficient to found an application for a mandamus, if the applicant was entitled to part of what he claimed; 8tb. That a request to a public officer, to take the necessary and legal steps pointed out by an Act of Assembly, to MANDAMUS. 877 assess damages for the injury done to the applicant's pro- perty under the authority of the Act. was sutnciently spe- cific ; 9th. That an objection that there had been no saf- ficient demand could not be taken after the merits of the application had been discussed ; 10th. That where an ap- plication for a mandamus fails, because there was no de- mand and refusal, it cannot, as a general rule, be renewed after a demand ; though there may be circumstances war- ranting a departure from this rule. Recjina v. Coiiimssion- m of Sewers St. John, 1 Han. 3. I'j-AtHdavit— Entitling^ ot. Irregular if entitled in a cause in moving for a rule nisi —discharged without costs. See Regina v. Justices of York, 1 .1//. 90. 13-Kctiii'ii to— iflayoi'— KtjsisoiiSjtoi* i*ctii*>»iiiK: to swear pni'ly— ■nsiiliicicncy ot. The Mayor of Fredericton is merely a ministerial otli- cer, and has no judicial functions to authorise him tore- fuse to swear in an alderman elect on the ground of dis- qualification, if properly returned by the presiding orticer. Semble, That an information in nature of a quo icun-'in- to might lie to try the right of a person to exercise the office ; but it would be an insufficient return to a manda- mus to the mayor to swear in a person returned as duly elected by the proper officer — to say that he was not duly elected. Ex parte Richards. 2 flin. 181. Tiding i'ig[lit to exercise office. See quo warranto. Soroiid Application. ^''V Practice V. 17. tl-Other remedy — iVIniiiiicdy bj Action. By the Act 36 vie. cap. 37, sec. 13, the New Brunswick and Canada Railway Co. are required "to provide and run all trains necessary for the carrying of passengers and freight," and to " run at least one daily train each way over the said main line and branches, (Sundays excepted,) unless prevented by weather, accident or some other unavoidable cause, other than from want of Railway Stock, or from keeping the road or its appliances in good running order." Held, That the fact that there was no profit derived from running a daily train between St. Andrews and Watt Junc- tion, (one of the branches of the road,) was not one of the *' unavoidable causes " that would justify the Company in not running a daily train. Railway Acts, ard those of that description which are obtained on the appJ cation of their promoters are treated as contracts betwet- he incorpora- tors and the pubhc. The language of the Acts is therefore considered as the language of the promoters, and where doubts arise as to the construction of that language, the benefit of the doubt is to be given to those who might be prejudiced by the exercise of the powers given by the Act. Where the remedv bv action is not so efficacious as MANDAMUS. 879 that by mandamus, the right of the latter is not taken away. Re New Brunswick d- Canada Railway Go. Ex pnrfe Attorney General, 1 P. <& B. 667. 17-I?Iunicipal aid to Railway Company— No autiiority to take Stock— Ultra vires. A municipality authorized by the Legislature to take Stock in a Company incorporated for the construction of a line of railway particularly defined by the Act, is not bound to issue debentures to a Company not incorporated to con- struct that specific line, and not being such a line of rail- way as the municipality is authorised to take Stock in by the Act 34 vie. cap. 44, the appointment of a director by the County Council and the subscription of the Stock list by the Warden is of no avail, and being in excess of their powers they would have no right to assess for payment of interest on debentures nor for payment of principal. Ex parte The New Brunswick Railway Co., 2 Pikj. 78. ID- Coiiipeiliiig: A«i<^ey<>i'. See Evidence VL 3. Sol<>iiiuisiiiK OI— Party iiii«l€r uk;<'- Penalty. See Justice of Peace IV. :]2. liiijina v. Gnllaiit. Breach oi promise of Ser Evidence 111. 29. Biirkc ((■ Srrihner. Av«'rineiit ol- Action lor iiie«>iie profits. See Ejectment VI. 2. Proof ol'inarriaife. See Evidence VI. 4. ITIARRIED l^OillAlV. See Husband and Wife. Le((acy to— Action after deceaise of. See Action at Law IX. 13. Coverture ceaiiiinK— Infant— Kij^lit of entry. See Partition. Parol gift of lanil to wife- Title. See Limitations (Stat, of) IV. 10. Application by married woman to hvX aside pro^erd- ingfs in snit aurainiiit husband. St:e Practise VI. 56. Buirhell v. Poor. IVIASTER Ai\D l§EKVANT. Dismissal from EMPLOYftiENT. 1— Justification— Knowingly bearer of cliHllen||[(>. To have been knowingly the bearer of a challenge to fight a duel, is such an oftence as will justify a mercbant m asi sa MASTER AND SERVANT. 881 iiside pioceeil in the immediate dismibBal of a clerk from his employ- ment. Dolly V. Kinuea:, 1 K \vaKe*« — i^uantiiui ineriiit — Previous receipt. Upon the quantum meruit for three years' service as clerk and book keeper, the defence set up was that the plaintiff had taken goods from the defendant's store which he had not charged himself with in the books, that the defendant having discovered this, threatened to proceed crimmaily against the plaintiff, but the matter was arranged by the plaintiff's giving to tlie defendant a receipt in full of all demands, and the plaintiff's -juitting the defendant's service. The plaintiff notwithstanding brought this action, and the case was left to the jury as to the value of the plaintiff''8 services, and the amount he had received. The jury having found a verdict for the plaintifi' for M'li, the Court refused to disturb it. l>mver V. Bradley, 2 Ken 110. ''5-.TIastcr of vessel —liejjiigeuce. The registered owner of a vessel is not liable for the negligence of the master, unless he has been appointed by such owner, or is acting for him as his servant or a^eut in the navigation of the vessel. Seichnry v. Younq, 1 Pug. U8. 882 MATRIMONIAL CAUSE. t ¥ -m ^■,' SlaiKc Driver— PrcjitUinptioii uw to payint; over pas> ^tctijircr money. See Assumpsit III. 44. Action by blaster for Servants earninifs from other parties durinif cngnKenient. See AEBumpsit III. 15. NeK^iigence of Servant— Liability of ITInster. Se<' Carrier 7 — Negligence. Relation— Selling Lnniber — Approval. See Trespass III. G. Duty of [Vlaisiter to\var«lK workmen. See Negligence 0. Cniici v. Cliislmh)! 6— Contract of liirinfj'-DiMniiKsal— Grounds of. Declaration tset out contract of hiring from 9th April, 1874. The evidence was that plaintiff had been in defendant's employ for previous year, which commenced on the 9th April, 1873. On 10th April, 1874, plaintiff not having yet left defendant's employ, the latter told him to continue on as before. Held, That the contract for the second year would begin on the 9th April, and that there was no variance. It is no part of an ordinary contract of hiring that the servant has not been guilty of misconduct in any previous employment, and he is not bound to disclose such mis- conduct in the absence of enquiries made of him by the employer, and unless the servant has made some false representation, the discovery of such misconduct is no ground of dismissal. Grove v. Domville, 1 P. d: B. 48. rriASTER IN CHAmCERY. Deed from— Evidence of proceedings) rightly done. See Deed I. 17. Pnrcha*>er under— Recovery in trespass. .s^'( Trespass I. 11. MATRADriONlAL CAUSES. Court tor trial ol. The Court for the trial of Matrimonial Causes at the passing of the Act 23 Vic. cap. 37, consisted of a Judge of MERITS. 883 5 over pa$> rroin other the Supreme Court as Vice-president, and two members of the Executive Council. Ex farte Chase, 6 All. 394. By the Act 4 Wm. IV., cap. 30, all the members of the Executive Council were ex-officio Judges of the Court. Ilml. An order for Alimony was made by the Vice-president of tlie Court and two members of the Council. Held, That process of contempt for disobedience of the order might be made by a Court consisting of the Vice-presi- dent and two other members of Council. Ibid. MAYOR. i ministerial ofiiccr. St'c. Mandamus 13 — Justice of the Peace — Corporation — Fredericton (City of). iwi:dic'ai. act. Ser Pleading I. 50. !VIEI?IOKIAL. Evideiire or inciiiiibrstiice on laud —Binding land. See Lien 5 — Evidence II. 38 — Execution I. 2. !?rEK€HANT$ SHIPPINO ACT. See Shipping Law. MERCiEK. Oracroinit** between |>ai'tie*i. See Assumpsit III. 50. Jiidgiiieiit obtained— Oi'isinnI cause of action merged in. &ee Set off 9. Judgment changes nature of debt. See do. Tenancy at will— Life estate. See Ejectment II. 2. DWESNE PROFITS. See Ejectment VI. Setting aside Judgment on affidavit of merits. See Judgment by Default. 884 MISJOINDER. K ill I LE AGE. See Costs II. 32, 33. MILITIA. See Alien. MILL DAin. See Dam — Action on the Case — Covenant — Damages 1. 2, 3, 4 — Limitations of Actions — Water Course. ifloi'tKaKor and ITIortgaKCC— JVoii-liability ot ^'Vlortgagee for erection of Dam* See Action on the Case III. 2. Use of Dam— Question left to Jury. See Action on the Case III. 3. Sluice-way— Iflnnicipaiity. The power given to the Sessions by 1 Rev, Stat. cap. 63, to order sluice-ways to be made in dams, is vested in the municipalities in incorporated counties by cap. 45. Qiuere, Whether it is necessary to prove any of the proceed- ings prior to the order of the municipality to coastniet a Bluice-way. McLean v. Davis, 6 All. 266. MINES AND MINERALS. See Crown Grant III. 1, 2. License to Aig, See License — Pleading II. 18. MINISTERIAL OFFICER. ]!Iayor. See Mandamus 13. Justice of tlie Peace— Oliiciai Act. See Action at Law XL 6. iMISDESCRIPTION. See Bills and Notes IV. 8, VI. 10. MISFEASANCE. See Bailment. MISJOINDER. Neither want of parties nor misjoinder is a ground of demurrer under the Equity Act 17 Vic. cap. 18, sections 8 and 24 Consol, Stat. cap. 49. See Practice in Equity 37. MISTAKE. 885 Ot pjirtie*. in EQiiity. Sei' Appeal 12. Of C'ountti in declaration. Ser Pleading IV. 11. or <'au«>r»» of action. Sec Action at Law XII. »c Identity — Name — Initials. No ground of iion-Muit. Misnomer of plaintiff is not a ground of non-suit, if it be shown that defendant has not been deceived, and knows the action was brought by the person who actually sues, and that in such case an amendment is not necessary. Per Wetmore, J — Coj)}) v. Head, 3 Pittf. 527. A defendant may be sued under a name he is commonly known liy, though it is not his proper name. Davidson v. KwQ, 2 Piifi. 5. MISTAKE. Oiniion in liM of D('bt«>. See Evidence VI. 7. .1li)itHke ill l§tatntc. See New Trial III. 55. Wiines«> giving^ evidence. See New Trial II. 11, 12. t'laini in Replevin. See Replevin 21. Kevi«.ed Statiite«i. The power given to correct mistakes in the arrange- ment of titles, etc., of Revised Statutes, ceases when the text of the Act is printed, See Reg. v. McLaughlin, 3 All. nistnke in name. See Name. Mistake in running lines. See Crown Grant I. 11. 886 MORTGAGE— MORTGAGOR & MORTGAGEE. i ' IVIlXTtJKE OF GOODS. See Replevin 20 ; Trover 26. ivionicTO'V. See Justice of Peace IV. 10 — Election 2. IVIOMEV LEJVT. See Assumpsit III. 41. Money paid into Court on appeal— Rcrunilint; oi. See Appeal 21. ITIOMTHS. A policy of insurance is a mercantile instrument, there- fore the term " months " used therein, Umiting the time for bringing an action for loss, means calendar months. Pomares v. Provincial Insurance Co,, Hill. T. 1873. Sk Insurance 40. IVIORTOAGE— ITIORTOAOOR AND iTIORTCi ACJEE. See Equitable Mortgage. 1— Extent of Contract— Confined to absolute e««tat(>. A. by deed reciting that he was seized of hinds and hereditaments in fee simple, and being indebted to B. had agreed to transfer and convey to him the hereditaments thereinafter mentioned for securing the debt; ijrunteil, har- gained, sold, released and confirmed to B. all the lands, Ac, and hereditaments situate in the Province of New Bruns- wick, of which A. was seized in fee, or any other estate of freehold or inheritance. Held, That the deed was coutined to absolute estates, and that as there was no assigument of debts, land which A. was entitled to as mortgagee did not pass. Doe don. HoUlerness v. Dunnelli/, 3 Ki'rr 238. 18— Accessory to debt. In ejectment, to recover certain premises which had been mortgaged to J. K. and H. G. K. for securing a bond debt, a deed of assignment was put in evidence from J. K. and H. G. K. to the lessors of the- plaintiff, creditors of J. K. and H. G. K., and trustees for all the creditors, reciting among other things " that the assignors proposed to assign all their joint and separate estate and effects, real and per- «onal, except as thereinafter excepted," and, after designat- MOKTGAGE— MOKTGAGOR & MORTGAGEE. 887 indiiit: oi. >RT«A«EE. ing certain real and personal estate, assigned all and singular (certain property named in the deed,) and also "debt and debts, sura and sums of money, bonds, bills, notes, securities, vouchers for or affecting the payment of money," and all the estate and effects of whatever nature and kind soever, etc., wearing apparel excepted ; upon motion to enter a nonsuit on the ground that the deed of assignment having described other real estate, but omitted to describe or allude to the mortgaged premises, the same were not assigned by the deed. Held, That as the deed ex- pressly mentioned debts, bonds and securities for money, the ^^ 'id debt which the mortgage was given to secure passed to the lessors, and carried with it as accessory thereto the land contained in the mortgage. Doe dem. Burnhain v. IVatts, 3 Kerr 346. 3-Present l«*gal ostiite— JVIoi'tKage debt. The plaintiff in ejectment claimed under a deed con- taining the following exception : " subject to an incum- brance of a certain mortgage now in possession and in favor of H." (the defendant.) Held, That these words did not necessarily show that a present legal estate in posses- sion did not pass to the plaintiff by the deed, or that the mortgage referred to, gave the defendant an immediate es- tate in possession, which he was entitled to set up to bar the plaintiff's claim. Doe v. Hanson, 3 All. 427. An executor cannot assign the legal estate in land mortgaged in fee to his testator, unless the land is devised to him. Without such devise, his assignment will only operate as a transfer of the mortgage debt. Ibid. 4-Liability of virhole land to niortg^age— Verbal ag:ree- nient— Subsequent pai'titi in ignorance by the latter of the agreement, by which the portion of the land allotted to B. was to be released 'rom the mortgage, was a fraud upon C, and that such agreement would not be carried out for B.'s benefit. jDluiston \. McCartney and others, 1 Han. 220. H — Operation oi iiio) c — Ko notice — Rents and pi'Ofit»>— Gl'lll^K. Where the mortgagee has not given any notice of in- tention to take the rents and profits of land in possession of the mortgagor, grass growing on the land will be deemed to be the property of the mortgagor, with the assent of the mortgagee. Baxter v. Johnson, 5 .4//. 350. 6— Deed absolute in foriu— 9loi*tga8:e. A deed absolute in form decreed to be only a mortgage on satisfactory evidence that such was the intention, and a subsequent deed from the grantor to a third person vitli notice of the prior deed, though registered first decreed to stand subordinate thereto, and the grantee in the second deed allowed to redeem the mortgage. In default of doing so, his deed declared fraudulent and void, as against the first deed. Hillock v. Fnzzle, 5 All. 656. V— Enrolment ot Registry— Proviso for redemption. The estate of a mortgage in fee of land, cannot pass by deed of bargain and sale without enrolment or registry, nor MOKTGAGK—NrOUTGAGOU & MORT(iAi.LK. 889 by feoffment without livery or soiBiu, Dov licm. Ihirnhum V. \yatts,2Krrr HI. The proviso for redemption will not operate as a re- demise to the mortgagor so as to entitle him to the posses- sion of the land until default made, unless there be a stipulation to that effect. Ibid. N-Failurc or condition— imc<;liii<>nt -IVotiec. Wiiere a mortgage deed is given to secure the payment of a certain annual sum on a particular day, and the deed conta'ao'i a clause that until default the mortgagor may cciidnue in possession. Held, That if the annuity is not paid on the day stipulated the mortgagee may eject the mortgagor without notice to quit or demand of possession. hnedevi. Bryant v. CuiKird, 2 Kerr 193. A-Dctence— lTIortKU((ee— Aj^sig^ncc— Stntute oi Limita- tionfii. Assignee of mortgagee in possession may set up the mortgage as a defence to an action of ejectment by the HSfiignee of the equity of redemption, though the mortgage is more than twenty years old, and the right to recover thereon is barred by the Statute of Limitations. See Doe V. Hanson, 3 AIL 427. 10 Stsitiite of LiuiitatioiiM— Payment by mortgagor— Sale of Equity of Redemption. S. mortgaged land to the lessor of the plaintiff in 1837 and made payment ou account from time to time, the last payment being in October 1843. In 1842 the equity of re- demption of S. was sold at Sheriff's sale by a judgment creditor, and the defendants claimed under the purchaser. /M, That notwithstanding the sale of the equity of re- Itmption the payment by S. kept the mortgage alive for twenty years from the time of that payment, by 1 Rev. Stat. cap. 139, sec. 30, and that the mortgagee could recover the possession. [Sec Chinnery v. Evans, 10 Jur. •V. .S'. 855.1 Do,' dem. Fox v. Wright, 6 All. 241. Il-Possessiou by verbal permission of mortgagee. A person who goes into the possession of land by the 56 iiiffi 890 MOETGAGE -:>IORTGAGOR I't ^fOBTGAGEE. verbal permission of the mortgagee, cannot be put out of possession by the mortgagor, or any one claimino under kim. Doe dem. Harding v. Hanson, 6 All. 340. lit— Entry by coiiienand oi iiiortf^a^cc -D<^ff>ncc. A verbal command by a mortgar ee to a third person, to enter on land in possession of tlu' mortgagor, and cut and carry away timber, is a defence to an action of tres- pass by the mortgagor against such person. Carsop v, Oriffin, (> All. 244. 13— Several inoitffagcs—Pow*"!' or Male— AsMgnmonts - Di^icliarge on records— Claim on payment. M. gave three several mortgages to A., 13. and C. Tbe mortgage to C. contained a power of sale to him and his assigns in default of payment of the amount due on his mortgage ; or, in case he or his assigns should pay any part of the moneys payable on the mortgages to A. and B. respectively. C. paid off 13. 's mortgage, satisfaction of which was entered on the records, — and the mortgages of A. and C. were afterwards assigned to the defendant, Held, That by the assignment, the power of sale given to C. in the event of his paying B.'s mortgage, vested in the defendants, and was not affected by the discharge on the records ; and that in a suit to redeem, the defendants were entitled to claim the amount paid by C. to discharge B.'s mortgage, though that mortgage had not been assigned to them. Livingston v. Bank of New Brnnswick, 6 All. '2o'2, 14— Excessive claim— Payment — Interest allowed. In order to prevent the exercise of a power of sale by the mortgagee, the mortgagor paid the amount claimed under protest : in a suit for redemption of the mortgagi the amount claimed by the mortgagee having been heW excessive, the mortgagor was allowed interest on tlu excess. Ihid. 15— Estate of mortgagee— ExiM'ution aKaiii*«t. The estate of a mortgagee in fee who has not takea posBession of the land, is not seizable in execution on al judgment against him. See Execution I. 3. IGAGEE. t be put out of claimino; under 340. , a third person, rtgugor, and cut Q action of tres- fson. Carm v. -Assignments [»ayment. ..,B.andC. Tk e to liim and bis mount due on bis ,s should pay any .gages to X. and B. ige, satisfaction ot [id the mortgages oi to the defendant. ,er of sale given to •gase, vested in tb. e discharge on tbe the defendants yjeie 3 to discharge B.« ,ot been assigned to torest allowed. f a power of sale by Ue amount claimed ;on of the mortgage ,ee having been beU] led interest on t^ in «««»«'**• , [e who Ua» »ot H Lin exoev>t>»° ""'I MORTGAGE— MORTGAGOR &, MORTGAGEE. 891 le-iTlortgagoi- and mortgagee. Non-application of Act 6 Wm. IV., cap. 43, sec. 2. See Limitations of Actions I. 6 a. 17— ExtinKHisl>Hi<^iif of debt— Purcliafiic. If the mortgagee purchases the equity of redemption at Sheriff's sale, the mortgage debt is extinguished. McPhelim V, Weldon, Trin. T. 1862. In re Brckwith, M. RolU, Aiigmt, 1845, 6 All. 368. l§-Grectioii of Wlill Dam by ]VrortKag:or-- Liability ot .llortgagce. See Action on the Case III. 2. 19 Mortgage paid but not cancelled, — mortgagee has no beneficial interest in the property. Doe v. Baiter, lAiisn. 90-Evidf'nce— Exeirutor. An assignment of a mortgage by an executor is not admissible in evidence without proof of probate. Doe v. ^iiimn, 3 All. 427. >il -Uitiipiiting tit'e ot mortgagor. After foreclosure, a stranger to a mortgage may dispute the title with the mortgagor. Doe v. Brown, 3 All. 439. 3'2-Iiisiirance. A mortgagor has a right to insure to the value of his property, without disclosing the incumbrance, unless stipulation in policy to the contrary. See Insurance 25. iS-^ortgage — Fraudulent or not — Sufficiency of— Coiisidcration. The plaintiflf claimed title under a mortgage from P., stating as consideration a debt of i'300 — but there was no proof of any debt beyond ii*25 ; the defendant claimed wider a Sheriff's deed founded on a judgment recovered against P. since the mortgage, and gave evidence to shew tbat the mortgage was fraudulent. The Jury were directed tliat if there was a debt from P. and the mortgage was ?iven horn fide for the purpose of securing it, it would be T&lid. UM, That this direction was right, and that it was not enough to shew a consideration to the extent of i*25. ^'<'«v.(itlfcert, 1 All. 520. .if;.: 892 MORTGAGE— MORTGAGOR & MORTGAGEE. 24— Exting:ui! race. See Statute 6. Bailey v. McDuffee. 25— Declaration— Description of niortgngor««. A mortr'agor in possession of property, is properly described in ihe declaration as being " seized and pos- sessed " thereof. Breiclng v. Berryman, 2 Pug. 515. ITIortgage rigiit— Equitable claim. See Equity 3. Foreclosure. See Equity — Practise iu. Liability of land mortgage• ulol't^a$[e- iu Bjcctineni. Estoppel— Action agaiust jVIortgagor by purchaser of Equity of Redemption. Sfe Estoppel I. 12. nortinragee against Mortgagor. Sci', Estoppel I. 13. Assent of Plaintilfs to mortgage ot personal property. See Estoppel I. 16. Asportavit Purciiaser of Deed from JTIaster in Ciiancery. See Trespass I. 11. Registry -IVotice. The registry of a mortgage is not notice of an incum> brance to subsequent purchaser. Doe v. Power, 1 All. 271. Pnrchaiiier ot Ship— IVotice ot prior unregistered mort- gfage— Injunction to restrain sale. Sec Shipping Law 3. PliiintiflTs right to costs of defending suit for redemp- tion. See Costs 119. Payment of rent to mortgagors in possession— Ten- ancy. See Frauds, (Statute of.) 6. is to right of devisee of mortgaged property to have mortgage paid out of personal estate. See Will. Absolute conveyance— ^mortgage form— Claim. See Equity of Redemption. Sutherland v. Meehan. .MOTHER. See Heir at Law. inOTIOIV PAPER. See Practice V. 1VIUI.TIFAR10USNESS IN BILL. See Practice in Equity. MUNICIPALITY. See Mandamus. 894 NAME. WIUTUALilTl'. Agreement to roler stif^ned by one party, wli<>tlicr bad for want of niutnality. See Therrian v. Therrian 4 All. 48. Deed bad for want ofinntnality. Sec Deed. NAMK. See Identity — Misnomer. False lni|»ri$>ioiiniont— Mot sbeit ii ihut pluintitt knows by one name i\s well as another. See Pleading II. 20. Jndgnieiit— Avermttiit or f^anie ix'rwon. See Pleading I. 58. Identity ol' person. See Pleading 1. 57. Afiidavit— Certainty a<<« to name. See Affidavit III. 5. Ju dKment— No va|8cotia . Whether further evidence than mere identity of nami was not necessary to identify the defendant with the de- fendant in the judgment sued on. See Evidence II. 29. Corporate name— Suflleiency. See r!orporate Name. Replevin— Claim by wrong^ name— AiiKnnient of bond in right name. See Replevin 21. Parties— Same name- Snrveyors— Question letttojurf to And who was intended. See Identity. AlHdBvit for attachment - Necessity of settinffout one ol defendant^ Christian'names. See Affidavit III. 8. MeLelland v. Mihion. Acknowledgnie,i«e Damages I. 27. Fishrry. The right of fishing in a public navigable river belongs to the public, and not to the owners of land bounded on the river. Rose v. Belyea, 1 Han. 109. CommoD blghway— Obstrueting navigation ot— Daia> age. See Action on the Case IV. 1, 2. IVAVIOATION. Injuring plaintiff's nets. Allegation ot cause ot ii^iury. See Action on the Case II. Abstriictiiig river. See Boom Co. See Action on the Case. Attorney negligently eondueting ncition— Pleading. See Pleading II. 22. ,SV Attorney VII. 3. !iarKeoii-:Vegligenee -DeclarafifMi. See Action on the Case If. 3. Sec Evidence III. 10. 896 KEGLIGENOE. Penalty— .'Veirlitfcntly kiiidlinic flro. See Fires. Water company— Daiiia;(e by fire— Duty a«i to keeping Mupply oi water. See Water Company. JBscape. See Sheritf. Fire— iVei^ligfence of tenant. See Action on the Case I. 2. Owner and master of steamboat— Collision— DainiiK*;, See Principal and Agent 16. Weglig[cnee of servants. See Carrier 7. Using improper gear. See Carrier 8. Negligence of master of ship. See Shipping Law. Jflunicipal corporation liable for negligcnre in di*» charge ol duty imposed on them by their (■liartei'. See Corporation 18. 1— Contributory negligence. In an action for running down a vessel, if there was negligflnce on both sides, and the plaintiif, by hia own negligence, has contributed to the injury sustained by his vessel, he cannot recover. Day v. fJathcway, 5 All. 388, 1Z— Question not raised at trial. If in an action for running down a vessel, the defendani did not raise any question of contributory negligence on the part of 'he plaintiff, and the case went to the jury on the points taken by the defendant's counsel, he cannot object, on a motion for a new trial, that the Judge should have left the question of contributory negligence to th? jury. Marvin v. Butterwell, Trin .T. 1867. 3— Legal right— Obligation. The defendants, having authority by law to lay out and open streets in the City of St. John, laid out a street througli NEGLIGENCE. 897 us to keeping ision— Damage. an unenclosed and hilly piece of ground. Several houses were built on the line of this street, but the land in the vicinity remained unenclosed, and people were accustomed to pass over it as they pleased, in various directions, though there was no right of way, except by the street. The de- fendants, having determined to level and improve the street, made cuttinpjs through the hill for that purpose — several feet deep in some places. The plaintiff had formerly lived in the neighbourhood of the street, and had been in the habit of crossing the open space ; and after the street was levelled, she was crossing the open space in the night, and not being aware of the cutting, fell into the street and was injured. HcUl, per Allen, J. (Fisher, J., contra), That the plaintiff had no legal right, as against the defendants, to cross over the land ; that there was therefore no legal obligation on the defendants to light the street, or to fence the sides of it against persons using the adjoining lands ; and therefore they were not liable for the plaintiff's injury. Henderson v. The Mayor, dc. of Saint John, 1 Pvg. 72. 4-Killing rstttlc— Rnilway Train— Evidence. In an action against a Railway Company for running over and killing cattle on the track, the evidence of negli- gence relied on, was that at the time the cattle were killed, the train was being run with the engine behind, which was alleged to be less safe than running in the ordinary way, with the engine at tlie head of the train : it appeared, how- ever, that the train was not a long one ; that a man was stationed on the front car to look out for obstructions on the road, and to signal to the engine driver ; that the train was going round a curve at the time, at a slow rate of speed ; that every precaution was taken to prevent accidents ; and that the train was stopped as soon as it could have been if the engine had been in front. Held, That there was not iufficient evidence of negligence to leave to the jury. Fal- coner V. European and North Amerkan liailway Company. 1 Pug. 109. The fact that an accident has occurred, is not of itself evidence of negligence : tlie plaintiff must give affirmative 898 NEGLIGENCE. evidence of negligence on the part of the Railway Company, and if the fact of negligence is left doubtful, the defendants are entitled to a verdict. Thid. •1— Boom breaking— Obligation. By Act 10 Vic Cap. 72, amended by 11 Vic. cap. 49, and 16 Vic. cap. 52, the South Bay Boom Company was authorised to erect jners and a boom between certain poiots on the River St. .lohn, for the purpose of securing timber and lumber brought within the boom or fastened on the outside thereof. Held, that though the Company had the general control and direction of all lumber within the boom, it was under the immediate charge of the owners thereof ; and therefore the Company was not liable to a proprietor of land within the limits of the boom, for damage done by lumber in the boom breaking adrift, and floating upon his land — there being no duty imposed upon the Company, by the Acts, to prevent lumber deposited in the boom, from drifting on the adjoining shores : and no evid- ence of negligence on the part of the Company, or, of their omitting to use all proper precautions in the erection of their piers and booms. Dever v. South Bay Boom Compmty, IPufj. 109. 6— IVIaster and servant— FelloMr servant— Liability. An agent or servant is not liable for iiijuricb uauoeJ o) the negligence of a fellow servant, though such fellow servant was employed by him as agent for another, and was under his authority and control, it not appearing that the injury was caused by an obedience to the direct and express orders of the defendant. Craig v. Chisholm ; Nevin V. Chhhohn, 1 7'. d- B. 218. Y— Oovernni4>nt Railway— Contractorsii. The contractors engaged in the construction of a Government railway are not liable under the Slst Vic. cap. 08, sec. 11, (Canada Act) for damages caused bv a npn-eompliance with the provisions of the said section. Ihid. H— Dcr4>ctiv<> iiiatvrialM in work— IiUury caused there from— KnowlrdK*^ of d«!f(>ndant> A master is bound to take proper and reasonable pre- T^^r 899 NEW ASSIGNMENT. cautions for the safety of his workmen. Therefore, where declaration alleged, 1st. That plaintiff was retained by defendant to work on construction of a ship on a scaffold- ing in defendant's shipyard, and defendant look so little care in furnishing materials, that he wholly failed to pro- vide adequate materials, and negligently permitted said scaffolding to be erected of improper materials, so that it gave way while plaintiff was working on it, and he was injured ; and, 2nd. That defendant took so little care in the selection and employment of a foreman, that by reason of his negligence he employed one F., an unfit person to superintend erection of said scaffolding, so that by reason of defendant's negligence and F.'s unfitness, and neglect of defendant's duty in that behalf, said scaffolding fell, whereby plaintiff was injured. Held, Sufficient on de- murrer, and that it was not necessary to charge expressly that defendant had knowledge of the defective materials or the incompetency of the foreman. McDonald v. McFii\ 8Pm^. 159. Duty of Chief Engineer of Fire Depurtnient— UeM- pondeat superior. See Action on the Case II. Harris v. Master. Repairing: public street in St. John— Allegation— Kvid*< encc of sCiTcctt being under contract of Corpora- tion. See Pleading I. 75. Gordon v. Moifor, d-c, St. John. improper use of hooks in lowering casks. St;e Carrier 8. Street v. Morrison. iVglifence of servants oi carrier. See Carrier. Ibid. Loiis of goods— Delivery not complete. See Carrier 6. NE1¥ ASSIONITIENT. Assault. 5ee Pleading I. 12. License. u<,;i,>i,,:. "Jw Pleading II. 17. ■ ' 1' :rj|flf'[!f n '' 900 NEW TBIAL. §M\ Iv I 'Seisin. See Pleading II. 18. MCW KNqUlKV. See Practice VIII. NEW MATTER. I^CHVC to file itftldavits in aii^twcr to. See Affidavit VI. 8. MEWSPAPEK. Publication in— Presumption. Sec Joint Stock Company 3. Publication of notice for tliree consecutive day«i. See Costs 34 b. Wotiee in. See License 11. MEW TRIAL. I. Motion — Affidavits — Practice. II. For What Cause Granted — Sufficiency. III. Refusal — Insufficiency of Reason. IV. Miscellaneous. I. Motion — Affidavits — Practice. 1— Issue sent doum by equity side of Court. When an issue is sent down for trial by the equity side of the Court under 17 Vic. cap. 18, sec. 18, 2 Rev. Stat., page 80, a motion for a new trial must be made before a Judge in equity. Hodge v. Reid, 1 Han. 89. 3— iWotice. Notice of an intended motion for a new trial, must be given to the Judge who tried the cause, though points have been reserved at the trial. Flaherty v. Sayrs, Ber. 83. 3— Yorli. Sittings. Under the rule of Court, Mich. 1 Vic, thirty days' notice must be given of a motion for a new crial from the York Sittings, although points have been reserved at tbe trial. Turner v. Hammond, 2 Kerr 636. NEW TRIAL. 901 4-Alfldrtvit»»— Jurors— l¥ItM<»ss<»s-P»rfy. Affidavits of jurors stating that they have received evidence after retiring from the bar, cannot be received to impeach their verdict and obtain a new trial. Attorney General \. Uot/er, C. Ms. 7H. See Infra II. 41-43. J- On a motion for a new trial, an affidavit stating that one of tho jurymen had informed the deponent that the verdict was decided by lot, will not be received. \ki{mn V. Carr, 3 Kerr 499. e- The Court refused to receive affidavits of the jurors stating that they found the defendant was not in a proper state of mind to understand the deed, and intended til assign that as the reason for their verdict. Bahhit v. Cnu'perthwaitc, 3 All. 373. r-Witncs«(o«>— A fliduvits— Discovery of new cvldcnce- To support an application for a new trial in oonse- (juence of tlie discovery of new evidence, the affidavits of the witnesses should be produced ; or if they refuse to make affidavits, the applicant should state what they can prove. Coy v. Gardiner, 2 All. 91. N-Discovery of new evidence. In applying for a new trial in consequence of the dip- covery of new evidence, it should appear that the evidence was unknown to all the defendants at the former trial. Smith V. Neill, 4 All. 105. !)-Eiitry on Jiidgfc^s notes. Where a new trial is to be moved for on the ground of improper reception of evidence, counsel should take care that the question is correctly entered on the Judge's notes. Broicn v. Taijlor, Ber. 343, IO-atli— InipowiiiK Termti. Where the defendant died after a rule nisi (ox a new trial for improper admission of evidence had been granted on his application, the rule was made absolute on the following conditions : 1st. That the defendant's represen- tatives should enter into an agreement that the verdict should stand as security for the result of the new trial, provided the plaintiff obtained the verdict. 2nd. Thai such verdict should be entered as of the assizes, when the cause was previously tried. 3rd. An undertaking that the defendant's death should not be assigned as error. 4th. That notice of trial should be served on the defendant's representatives and on the attorney on the record. OVel- don J., dissentiente — that a new trial was grantable w debito justicue and therefore no terms could be imposeJ, Key V. TlumMon, East T. 1871. Rule nisi— Remodelling: ot. See Practice VIII. 19. 13— Day ol moving tor. After the first Saturday in the term, no motion for a new trial can be made, unless the cause has been men- tioned in the Court on that day. Orpwood v. Monimi 1 P. ci B. 3. 14— Wilderness land -^'o title by doeunient or other' wise but bv r'^'^^'-ssion, flndiiij;; of Jury will not be inter* -red \«lih. Se< ations of Actions IV. 15. Estabmb v. Br can. 15— AfUuii vit oii«'liiMioii or Jury. If tho Court is satisfied tlmt tint jur.y havo come to a wrong conclusion upon the evidence, a new trial will be mnted, though it was a question involving the considera- tion of fraud, and was left to tho jury on that ground, and on the credibility of a witness. I)<»' v. fl'itrh, 1 All. 200. 9-FiirtlK'r iuv«!MtiKHtioii requisite. In an action of trespass involving a question of bound- ary, where the surveys made had not satisfactorily aseer- tiiined the bounds of a grant, and the case appeared to re- quire further investigation, the Court granted a new trial on payment of costs. Scribuer v. McLatighlin, 1 ^1//. 370. 3 Vrrdii't aKaiu^iliaw aud evidence. Where a verdict given for the defendant in an action of fjtitment was clearly against law and evidence, the Court wanted a new trial, the costs to abide the event of the rtiiit. Doc T. Watson^ 1 All, 675. 4 -The Court is very reluctant to send a cause ilown to a third trial ; but will do so, on payment of costs, when the verdict is clearly against law and evidence. ITart- h^. Fisher, I All. 694. ^-Improper reception ot evidence. Where evidence has been improperly received, a new triiil will be granted, unless the court is satisfied that the jury were not iutluenced by the evidence. McMillan v. Fniscc, 2 AH. OlS. ^ Where evidence has been improperly received, a new trial will be granted ; and the Court will not enter into an inquiry whether there is proof enough to support the verdict without the objectionable evidence. Girvan v. Mayor of St. .Johny G All. 411. See Key v. Thomson, 2 //'IK. 224. )-iiuproper reception orevideii«*<>— Possible influence oil jury. Where a deed oflfered to shew the defendant's title to the land in dispute was improperly received in evidence, a 904 NEW TRIAL. verdict for tae defendant was set aside, though it im-at have been sustained without the deed ; it not beiiif^ clear that the jury were not influenced by it. Maynas v. Ihlnn 3 All. 573. i^— Absence of Counsel— Terms of rule. Where a cause was tried as undefended in the abseuce of the defendant's attorney, who was accidentally out of Court in expectation that the case which stood before it would occupy the whole day, the Court granted a rule imi to set aside the verdict on payment of costs, and on condi- tion that the defendant paid the amount of the verdict into Court ; the plaintift" to be at liberty to consent to the rule being made absolute and to go trial at the first Circuit. McLean v. McDonald, Trin, T. 1864. 9— Pei'verse verdict. Where the verdict is perverse, a new trial will be grant- ed without argument of the questions involved in the case. {See Hawkins v. Alder, 18 C. B. 640.) Allison v. Robinson, Mich. T. 1871. 10--Verdict— Point not submitted. Where the only question left to the jury was the mental capacity of the defendant to execute the deed on whiclithe action was brought, and a verdict was given for the de- fe-'iiant, one of the jurors stating at the time that it was " from the defendant's not being fully acquainted with the contents of the deed," the Court granted a new trial ; the defendant's ignorance of the contents not being sufficient to warrant the verdict, if he was competent to execute tlh deed. Babbit v. Cowpcrthwaite, 3 All. 373. II— IVIistnke of witness. A new trial may be granted in consequence of a mistakt made by a svitness in giving his evidence, but the practice must be exercised with much caution. No general rule can be laid down on the subject. Doe v. Albct, 3 All. 375. 13-^IVIi8take of witness— Immaterial as to result It is uo ground for a new trial, that a witness for thi defendant made a mistake in giving his evidence as to the w^. NEW TiUAL. 905 lence of a mistafo contents of a letter, wliich mistake he wished to correct ; the Court being satisfied that the evidence as corrected to- ('tther with that given by defendant wouhl be no answer ta tii'3 plaintiff s case. MrGrr v. IVrtmorc, 5 AV. 230. |:J -DiM'Overy of iii'vv <'vifloii«M'— Siirpriiito. riaiiitiff in ejectment relied on an adverse possession of loiirteen years in A., her father, and possession in herself after his death in i8B2, making together twenty years. The (lel'unilant held under a lease from the Corporation of Saint John, the grantees of the land. After a verdict for the plaintiff, the defendant's attorney in consequence of the evidence of one of the plaintifFs witnesses, searched the rteoiils and found a conveyance from A. of his interests in the lands to U. dated in 1821, describing it as " corporation ground ;" he also upon enquiry of B. (referred to by the plaintilf's witness), ascertained that B. had held the land under a lease from the Corporation of Saint John, which liiul since expired, and let A. in as his tenant in 1818, and that he held as such until his death. Held that this evid- ence was material, and there being no reason to suppose that the defendant was before aware of its existence, a new trial was granted on payment of costs. Doc v. Baker, B ,4//. 591. fl— Vci'dicl iiicoiii*iil witli 4;vitleii4>o— Unices terms UHsciiU'd to, now ti'isil ^i'alltV-Vsii'iaiic(!— D4'*>4^ri|»tioii »t' |»r4>|>ci'ty -OI»i4Mrti4»ii. Where the .V/s-/ Prixfi reciord in an action of trespass varied from the declaration delivcd'ed, in the description of the property taken, and the [)laintitf' s counstd, in hisoixm- iii!,, claimed for property of which the defendant had no IHivious knowledge, a verdict for the plaintift' was set asiile, though the defendant's counsel had cross-examined 57 906 NEW TlilAL. iFi tiivT plaintiff U: refer ice to such propert}' — the varianco having been objected to at the opening of the case. Bm- cJiraii V. Drsbrinaj/, -4 All. 122. lO— Vc>rviil4>ii<'i>» The defendants claimed title to certain premises iindtr a deed sworn to have been made in 18],') or IBliI, Imt never recorded, and alleged to have been destroyed. It was testified by a witness, whose evidence was somewhat shaken, that in 1815 or 1816 he j'lirchased tlie premises from the grantee for l'4(), and gave one 0. as security for the purchase money ; that on paying tlie purchase be got a deed of the premises, which was witnessed by A. 8., and that afterwards he made a deed of the same premise? to (i. and C, which deed was copied from the lirst nientioiutl deed ; and this statement was confirmed by 0. as to the bargain for the premises and payment of the [lurchaHi' money ; and by S., that he had been called on to witness such a deed ; and by the deed to G. and ('. wliicli releiri I to the first deed : a verdict against such first deed was hi t aside as against evidence, and a new trial ordered. .1/ • Kiichern v. F(>,ri'«li(;t a;;»iii!>>l <>\ i ^iatiilo of lyiiiiiliition« dcfoatin^; artioii. Where the verdict is against evidence in an action nt ejectment, and the Statute of Limitations nuiy defnit the plaintiiy before Ik; can bring a s(x*ond action, tiit- Court will grant a m^w trial. Ihtr ilnii. I'^ntdhrnnl,.^ v. Jhniiplirrii. 1 Ilan. 101. lit lH<roiHi':ir> to ,lii point not •«Hl»iiiill<>4l lo .ini\v< hi an action by the assignee of a demand, sued in the iiitiiiu of tlh; assignor, certain receipts and admission liy till; iLSsiguor were given in evidence to prove pjiyment in 9{»8 NEW TRIAL. full to him by the defendant, which it ceipts and admis- sions however were accepted to be impeached as having been made in fraud of the assignee. Ilild, That the question for the jury was not whether payment had been made before or after the assignment of the demand, vov whether such payment was in fraud of the assignee ; but simply, whether the payment had been actually made ; and this precise point not having been submitted bv tli( learned Judge to the jury, who found against the reLti[)ts and admissions, a new trial was awarded, iin^x wMcssunti, 8 Kerr 201. 124--A«lvc'i'«i««> (l lo. Where a party, against whom a verdict is rendered, is aware before the trial of a juror expressing a determina- tion to give a verdict against him, and does not object to such juror on his being sworn, the Court will not disturb the verdict. S<'rll)ner \. McLaufihlut, 1 ,1//. 371J. ^5— ('Oiii|iroiiiiM' — V<*i'«liel, result o(. Where the verdict for the plaintiff was evidently the rei^ult of compromise, and the weight of evidence was in favour of the defendant, the Court set it a-ide. A't//.s v. I'lynn, Bcr. 125. 'Hi— ¥a i-i4l«'iie4; iiii<»utif>>ractoi'y. Where the evidence was multifarious and contradictory, producing no satisfactory result, the Court ordered a new trial on payment of costs. Mcritheic v. Sisi^oii, o K'.rr olo. '!i'7-Suv\vy—ljiiiV! doiilitfiil ii|»oii tlKt 4>vi.w. One of the defendants' counsel, after having been examined as a witness for them, addressed the jury on NEW TRIAL. 909 their behalf, and a verdict was returned for the defendants ; on a rule nisi for a new trial, llchl, That examining a party's counsel as a witness lor him, was an improper practice, and accordingly the rule for a new trial was made absolute. iSltiehh v. McGrath. ct. al., )) Kerr 398. •i9-Jiii'.V' Taiiiitcriii^: uitli by di'loiKlaiit. Where after the jury retired from the bar, the defend- ant conversed with tlnnn respecting the cause, and supplied them with victuals and drink, the verdict was set aside. Trefetlicn v. Canium, Triit. T. 1831. ;tO— .fiii'v rocoiviii;; ri'fi-oslitnciits from ii4l:iiit. The jury after viewing the land in dispute went to the liouse of one of the defendant's and had refreshments ; no ixplanation of the charge was given by the jurors or the officer in charge of them. Held, per Ritchie, C. J., Allen and Weldon, J. J., That a verdict for the defendant ought to be set aside; per Fisher and Wetmore, J. J., That the plaintiff being aware of the fact before the trial, should have applied to the Judge to discharge the jury ; and that the objection was too late after verdict. McNeill v, Moore, 1 Pitij. 234. Sec Infra No. 44. bergiison v. Troop. See III. 4t). Spence v. Trcnholm. :il- Verdict contrary to evidence as to identity ol land. A new trial was granted in ejectment where the verdict was found for the defendant, contrary to evidence, as to the identity of the land described in a lease to the defend- ant. Doe ilcm. SaiidH v. Pliillips, 1 Kerr 533. SU-Vcrdict incoiiMiMtenl witii evidence and not in ac- cordance witii .lnd;(e% ciiar^e. The jury having, upon the second trial of an action of trespass against the Sheriff for taking timber, found a ver- dict for the plaintiff for i^200, the value of the timber being over i;90l), and having been directed to find for the plain- titi' for the value of the timber as being his property, or for the defeii'lant, as being D.'s property, under an execution against whom defendant had seized and sold the timber ; tlie Court, on the application of the plaintiff, set aside the verdict and granted a new trial on payment of costs. Con- "t'dv. A/i//er,2 A:e/TllG. tm ! 010 NEW TRIAL. The circumstance that the amount of the verdict was about the same as had been paid by the plaintiff to relieve the timber from the claims of the Crown, etc., and that this sum must have been paid whether the plaintilTor D. was the true owner, was not considered sufHcient to sustain the verdict, as this was not stated as the ground of the verdict, and was inconsistent with the position of either party. [Iiiil. 33— Vcr«li«'t not confined to proper !>i. In trespass, where a boundary was the prominent (|ues- tion in dispute, and the plaintiff in addition to his evidence of the line which he sought to establish, and the trespasses committed within it, proved a trespass of cutting forty trees on his side of the line claimed by the defendant. The learned Judge, on the evidence of both sides, left the questions of the lines to the jury, telling them that the line proved by the defendant was the more correct one, but that they might find for the plaintiff for the value of the trees, and the jury, in returning a verdict for the phiintiff, stated that they found the line claimed to by the plaintff to be the correct line ; a new trial was granted, it not ap- pearing to the Court that on such finding the jury had con- fined their damages to the trespass for cutting the trees. Lyons v. Merritt, 1 AU. S>1. 34— Excc$»siV4> 4lHiiiai;i:<>. In an action against a surgeon for negligence in treat- ing a patient, whereby it was alleged that he lost his hands and feet, a verdict was given for the plaintiff for §"25,000. Held, That the damages were excessive, the jury having found, that, without any negligence, the plaintiff would have lost a portion of his hands. In such a case, the Court ordered a new trial, though the plaintiff was willing to assent to reduce the amount of the verdict. Ken "*'• Thomson, 1 Jlaii. 297. S3— Evidence obscnrc. A new trial will be granted on payment of costs, where the evidence is obscure, and the case requires further inves- tigation to ascertain whether justice has been done, i'w- de>i V. llotdcrson, C. Ms. 47. NEW TJIIAL. 911 :tO— i'j<'*'ti»<'i>t— Rviii4'4>('oiilli4'tiii;;— Pr«>l»oii4l4'i':in<*e. A new trial will be granted in an action of ejectment, Wiiere the verdict for the plaintiff would change the posses- sion, the evidence being conflicting and preponderating in Favour f the d(^fcndant. J>oc dcni. Tliompson v. Dewar ini. 7'.1H27. .SV(! Supra I. 11. :)7-Mlir|M'l«>4- <'SI1IW4' llll4>\|»4M-t4Mlly Call4'(l 4»ll. The .Iiulge at Ni:-ii I'riii>i stated on Wednesday that he would not continue the Court beyond the following Satur- day night, except for the purpose of finishing a cause then on trial, in consequence of which, a material witness for the (lefen(la)it in one of the causes on the docket left the county on Friday morning by the consent of the attorney (there being then no prospect of the cau^e in which he was a wit- ness being reached that week) ; on Saturday evening the* Judge stated he would finish the cause then on trial that night, and call on the next case, being the case in which the witness had left the county, on Monday morning ; and the cause was tried accordingly on Monday under a pro" test by the defendant's counsel, against the cause being tried in the absence of his witness, and a verdict given fo*^ the phiintiff. Ifcld, That the defendant was entitled to a new trial on the ground of surprise ; and that his right was not waived by his counsel attending at the trial, and making the best defence he could under the circumstances. Meehan v. Sawttin; Kant. T. 1871. ;tN-V4>r4li4-l 4-4>iiti':ii-y t4> Jii4l|^4'% 4'lisii'tir4> --lnii»4>i'tniit pi'iii4;i|»l4> iiivolvc^d— Tlioii^li «laiiiaK4>!>i •>«niall. Where a verdict is contrary to the Judge's charge, a iKw trial will be granted, though the amount of damages which the plaintiff would be entitled to recover is small, the principle involved in the case being important. French V. Ilihh/ni, Trin. T. 1833. '•W-ri4':ir |»4>iiii 4>i law. On a clear point of law, the Court will set aside the ver- dict t'ltlea iiiKtt'u-H where there is an improper timling by tlie jury. FMahrool.H v. Orncr, 1 Krrr 57. 1 <)Ii NEW TRIAL. iitiii 'IO-<'nii«>4> ti'io«l a« iiii«l«>f'4'ii«l4>«l— I^als4' *>lal«>iii4>iii. "Where a cause was tried out of its order, and in tin; absence of the defendant's attorney, on the stattMiunt of the plaintili's counsel that it was undefended, the verdict was set aside on an affidavit of merits, and tliat dolciulant had intended to defend it. Sai/re v. Sfcci's, ') /dl. 8(1. 41 -PInii ii««t>4l by Jury witlioiil 4*OKiiiKniic4; 4»r.1ii(iKoor l»aiiy— Alli4lavil 4>l'iHi'4»i' r4>rHMC4l. In an action of trespass to try a disputed boundiiry one of tlie witnesses, during the progress of the trial, made a phin of the hand and gave it to one of the jurors, explain- ing to him what the phiintiff claimed : this plan was used by the jurors without the knowledge of the Judge, or of the defendant's counsel, a verdict for the plaintiff was set aside on this ground, without any examination into the merits of the case, the Court refusing to hear airidavits from tin; jurors that they were not influenced by the plan. <)uh'>ii V. Bowser, East. T. 1873. -SV^- Infra 48. 1*2— K4'.i4>4;tioiiof 4>vi4l4>ii4-4' R<')»l<'viii — Pl4>a iioii loiiiiil — ICiKlitt4> mIi4'\v fi'au4i iiii4l4>i'l«>a. The plaintiff has a right under the plea of iio)i tcnitit,\o shew a conveyance fraudulent. It is therefore competent for an assignee of an insolvent in an action brought to replevy goods distrained for rent, to shew under such plea that the premises occupied by the insolvent, and for which the defendant claims rent, were conveyed by the iusolveiit to the defendant to defraud his creditors, and such fraud being shewn the relation of landlord and tenant would not exist between them so as to give effect to the conveyance as against creditors — the evidence offered to shew this con- veyance fraudulent having been rejected, a new trial was orderi'il. McTjCoiI, ((xaifint', ,('r. v. M((,)tdrh-, 2 Puij. 238. 43 — Sli4;\v4>i- .lury ol vi4>\«-— Flaiiififf |>4»iiitiii;;»iii|>liu'«' 4»ii laii«l. In trespass qitare clausumj'reipt, a view was ordered. While the jury were viewing the premises, one of them asked for information about the removal of a fence which had stood on one side of the road, the right of way over nr-csc. NEW TUIAL. '.11:3 iK'iliciil. r, and in tliu statt'iiKnt ol' (1, the v.rdict iliat defi'iulant 5 /ill m. V. of.liKlKoor ttnl bouiuliiry, ;lie trial, made urors, oxpliiin- l^lan was usod "lulge, or of till, ff was set aside ;o the merits of ivits from tlu; plan. ()uJl"ii vi\ iioii triiiiil l«'SI. nnii lenuit,\o 'oro competent on brought tu ndor such plea and for wliicli ,• the insolvent nd such fraud ant would not conveyance as shew this con- new trial was •2 ph'i. m. liBiiKMiil|tl:i«'*> was ordered. , one of thfin a fence whicli t of way over vliieh was tlio (juestion in dispute, wishing to know where ;t originally stood. The shower replied that lie could not inform liini, and the juror then told hiin to usk the phiin- tilf; he (lid so, and the plaintifl' in view and hearing of the juror, pointed to a place on the land, and said, " here," ;ind the shewer then pointed out this place to the jurors, they, or one of them, at all events, having heard the (pies- tion asked of plaintitl", and heard his answer ;^iveu, and si.en him [)oint out the place on the land. ffcJd, That this amounted to the plaintiff giving evidence totlic jury ; that tlicre was a clear violation of the duty of the shewer as well as of the plaintiff, and the verdict being for the plaiu- titf, a new trial was ordered. Tldd, also. That neither party to the cause should be present at the view. Smhh', That the affidavit of a dissenting juryman as to a conversation between himself and another juryman, is not admissible on motion for a new trial. Bcnnci v. Smitli, 1 P. <(• 7>\ 27. Il-<»ivill^: l'<>fl'4'Mlltll<>lltS lO illl'€)l>- iiiiiiilcsitioii. llll|>l'0|»t>l' 4'OIII- ll Where there has been any improper communication by tlie successful party with the jurors, a new trial will be ^n'anted, even though the probable result of a second trial will bo tli,e same as the first, the defendant having taken the jmy to his house and giving them lunch when there existed no necessity for so doing, and being the act of the party, and not of the officer in charge of the jury of view, distinguished the case from that of Spencr v. Tyenkolm, 1 Unn. 7S. Feriiiisoii v. Troop, "2 Picj. 183. Sec iufnt 111. 46 SpoHT V. Tronhohn. I'^-Vcnlirf coiiti'ary l<» <*vid<'i»»'«' <'i' (HU'stion as to whom the orcdik was iTiven wiiH properly li'ft to the jury, hut that their lindiri" was agiiinwt the riglii of (^videiu'c, and th(>re should bo a iu\v trial. EntrioH in books ol" n.iM;ount are not concdusivc; against the ])orson niaicin 'I'l-ijil lM>foi-<> K|i«>i-iil' l*i-ivil<'K4> lo <'n>««!>>-«>\siiiiiiit' llll|»l'4»|>4>r «>Vi4l«>ll4'4> |»l'4'«»«i4'«l ill. Where in ;in en(iuiry before a sIk^mIV undei' a writ '^ jiroji. proh. till' defendant's counsel was iillowed to juit n paper in eviilonc(\ without the [)laintiirs couuscil bciiiij previously permitted to cross-examine upon it, tlio inquiHi- tion was set asiiU'. Ilainiiniitoii v, Cormier, 2 Pikj. 450, '17— 4':iii*.4> ti'i«'4l :i*« iiiilo ll4>^li;;4>llrl> in 4l4>l4'll4l:iilt. Where a cause was regularly tried as an undot'endeil cause, but defendant was not guilty of negligence in not being present, a new trial was granted on terms of pay- ment c' costs of the trial, and of resisting the application (excepting costs of atlidavits), and on defendant paying' into court the amount of the verdict or giving Heciu'ity, plaintilf to have liberty to change venue if he please. Ircemaii v. Wood, 2 I\ ,(■ I>. 'ill). 4M— K<>iii:irk>. 4»ii i4'. A new trial is never granted on the point of a Judge making or omitting to make a remark as to the cliaracttr of testimony. Per C. J. Ritchie in McLcoJ, .issifincc, v. McGuirk, i Pmj. 238. 4$>— Dninaj^cs t4»4> •^iiiall. A new trial will sometimes be granted if it appears clear to the court that the damages are too small, or that the smallness of the damages has arisen from some mistake ol the Judge. Privc v. Krh, 1 P. ,C' B. 708. NKW TIMAJi. <»15 mi due for the t WiiH i^ivoii toC. onnlit was j^ivon licir lindini; was bhoiiUl 1)0 a lU'W )iK'.lusiv(( against iiined. RiujmiHul > (■i'o««<^-«>\aiiiiiit> lY under a writ '/• i nllowc'd to put a fs counsel bcin^ )on it, the imiuisi- hi}; 2 Piiii. 450. i» iK'Ulip'iirc ill as an uudofendeil negligence in not on terms of pay- ng the application delVndant paying; )r giving security. nuo if lie pleasi. . iiiakiiiK •» point of a Mi' iH to the cliavacttr 'Lroil, .Uiihjnec, v. \ if it appears clear small, or that tliv m some mistake o! 8. ,^0 liii|>i-<>|M'r iKliiii^^ioii ol 4'vi4l4'iir«> Mtiiliiif; 4ii:iii I'O^sihlr illlllK'114'4' Oll.jlll-) 4lf' |-4>4-4'|»liOII oi illl|tl'0- |M>i- rvid<'ii4*4'. Wlitre a sailing cluirt was put in lividoncc and a witncHS asked, on (.'roHH-oxaniination, ni wliut respect it difT( red IVoiu aniitlior on board tlu! del'riidant'.s veHH(d. Ih'dl, 'I'lnit the evidence was inipioporly admitted. Where improper evidc^mH! is put in by counscd contrary to the opinion ol' tlu; -ludge presiding, the court will not undertake to say it had no inliuence with the jury, and will jiiiut a new trial, ■furk.soii v. MrLtlhai, 2 7'/-\v:i.v, Ac. Declaration iilleged right ol' way in pi'iintilY for horses cattle, and carriages, and obsti'uction to same, and on the trial this was tiie only claim set up. The Judge, liowev(!r, in charging the jury, told them that if they should lind a rij;htofway for carriages, cattle, or foot i)asst'ngers, plain- tit! should have a verdict. Held, An erroneous direction, and a new trial ordered. McRoherfu v. Mr Bride, 3 /^ff/. 48, Vi liii|H'o|><>r n>.i|»oi't
      rius has no authority to refuse it if offered and a new trial ordered where evidence was rejected. Ban-c of B. N. A . v. McElmy, 2 hnj 402. Iiijpropor i-<>c4'|»iioii of K\i«leiicc— Subsequent with- drauni by Jud;;<;. S«e Evidence III. 30. Wilmot v. Vanwart. n i)Ui NKW TRIAL. *iii' ('oii«itnl»l«^— Ai'i'<»«t aiMl ro*i<'iio Voi'«ll«| iitiain<>t ivi. 4l4'll<*4'. Si'f Trespass. V. 1:3. 'I'd/ v. Stroinirh, ^IIIJiriNl'— I'II<'\|»lll4'|ltM. Sec I'lvidenco I. 27. I'liiljm v. Tviwiimn. lil. Uefuhal — Inscfi'iciency or IIk.vson'. I \ot takiiiK: si of sivtiil:il>l<' cviilciifo. Where plaintifr iu trespass q. c.j. had it iu his powi-r to shew (letiuite bounds, but relied on the uiufrtaia linw oj' another grant, and the jury found againt hun, the Court refused to disturb the verdict. Bates v. Ijijou., licr. (J3. 2— lJii«;oiiM4;iuiial»l(> (U^lciice— Ueleasc. Tiie Court will not set aside a verdict obtaiued in an undefended cause, to enable the defendant to sot up a re- lease given by the plaintitf before trial, where it appeared that he was living out of the country, separated from his wife, and that the action was brought by her for wages Jue from the defendant, after her husband had abandonud her, Cark V. liohin-snu, licr. 8(). 3— liiia^iiisii-y «laiiia(i;<'»i. A new trial will not be granted for imaginary damages, Wison V. Kllis, Ber. 825. 4- -Point not "'aiciC'' on ii*ial -l\oiiiinal dsiniag:c Knr IHl. 1 CiiiiM' lri4>4l its iiiMl<>f<'iulil4*r not r«*4Ti\ 4'«l ill tiiii<>. An ap['litiitiun lor a new trial, on the ground that the cimse was tried at Woodstock as undefended on the *27th Siptembtr, the second day of thc' Court, owing to a letter ot the (kt'endunt's attorney, giving instructions for the de- fence, not having h(,'en delivered at the post-ottice in Wood- stock, when inijuired for on the morning of the '27th, ;iltlioui;li it liad been received at the ol'tice on the previous tvoning. was refused; it appe iring that the letter was not iiispatciied from Saint John, whore the attorney resided, i;Qtil the lU'th, and could not roach Woodstock until the I veiling of the day the Court opened. Sinilcii v. Ulnsioir, i K(ir 34!i. *-l)lH' (liliV4>IIC4' IH»t IIMfMl— T4'rillM 4»i IM'W tHul. A cause was called on in regular course, and tried in tiie abstnce of the defendant and his counsel on the first t!ay of tlic Court. A new trial was refused, except on the terms of paying money into Court or giving secuiity, it npptarins that although the defendant's absence was acci- dental, he Lad not used due diligence either in [ireparing ior trial, or getting to the Court, (iibhs v. iitcaihiiaii, 2 Km- DiM:ov4'i> 4»r Ii4'\v i>vi«li;ii<:(^ trials. Afli«lsi%'il — S4'V4'i'ul The Court refused to set aside a verdict for the plain - till, and grant a new trial, on the ground of discovery of m evidence, upon the aftidavit of G. that he knew of facts which were very material to the defence ; that he was present at the last trial, but did not mention the circum- stance until after it was concluded. The facts were par- ticularly set out in G.'s affidavit, which was however ex- pressly contradicted by other affidavits ; and there were of six respectable persons, that G. was a man of character and utterly unworthy of credit. The cause 018 NEW TRIAL. wns of large amount, had been three times tried, and oc- cupied several days each time, ('miiidl v. MiUer, 2 Ken 48:5. 10 - >4l>«i(>ii<'<> of 4l«>fii>ii*< not 4»iitr:iK^i>4»ii*«. A new trial will not be granted in an action for a mali- cious arrest, on the ground of excessive damages, unless tht damf.ges are outrageous. W'ruti, Dili v. UMiioii loi'.jiify. In an action for trespass, the amount of damages is entirely for tJie consideration of the jury, and the Comt wiU not in general disturb the verdict. Ifaddni v. Whii'. 2 Kerr (i'So. l:<— l)stiii:iK^4>*<~4'oiitr:ir.v lo 4lii-4'«-lioii of .Iii4l;,'4> \oi in trespass for taking goods under an execution wliidi was afterwards ^et aside as illegal, the plaintitf piW' 1 that on the levy, and without the goods having l)e>ii taken from his possession, he [)aid the Sherili' I'l'. the amount of the execution : the Judge told the jury that tbe anu)unt paid by the plaintiJf was a fair uieasun of damages, but they gave a verdict of l'2i), //«/(/, Tliitt the damages were not so excessive as to justify the Com: in granting a new trial, ll'iliimi v. Sinri. '■> All. 251. 14' l>aiiiiiv:<'*> l.:ii-U4> 4>««.4>s<*«'<'i'l.v. Where the jury d(^ not api)ear tt) Inive assesseti thf (hiuniges on a wrong princi[)le or acted under the inHuencL- of in)proper motives or 1)ias. the Court will not distuili their linJing e\en if the damages are Inrger than t'"}' miglit have l)een disposed to give as jurors, (ioihi'lw ilw Frt'dcricUm Jiooiti Conifxiiii/, i linn. .">;}♦'». NEW TJIIAL. '.»!'.) es tried, and oe- . Milkr, 2 Kfn; »lll <'«HII't. i, in conseiiut'iid: lourt when it ww iougli the amtiunt swore that be luil fed to arise out oi wliicli rcinaini'l 1. action tor a mail- images, unless the Iidlvtt, 'IKcrr'M lunt of damages is iiry, and the Comt IfadActi V. ir/'"'. II ol .lu as J» IIM?aSHI'C <>♦. Where i^ action to rocovor insnranco, tlio defendant's witness contradicted the plaintiff as to the value of jLjoods lost by fire, hut the jury n'ore properly directed as to the mtastu'e of damages, the Court refused to disturh their verdict, even though they might have given less as jurors. Civdi'i'V. the Phanilx InHumncc ('(Diipxiii/, 'I Ilsti4»n of. The question of damages having heen left open to the :iirv, and the verdict being for plaintiff, the Court refused ;i new trial on the ground of excessive damages, although it appeared that the depreciation of the mill property since till: date of agreement in ijuestion was much greater than tilt; diti'erence between the consideration paid and the iimnunt of the verdict. Smith v. MiU((ge, 2 Kerr 408. 17 Dniiia^;(>s 4>\<'o*«sJV4> C'oiillii'liii;; «'vid<>ii<'c'. Where in trespass there was conflicting evidence as to t ([nantity and value of trees taken from [)laintifi"s iaud, till,' (lourt refused to disturb the finding of the jury, • ven though the damages appeared large. Vrcseoit v. \\''« wlioii not <'4»iisi«l4>i'ssivc. Nc l)iiii 'OS \. 'iT.— ^.rr-licious Arrest. A.r. 7. — Infra 1^- i>siiii:im^(>«i <>x<'<>ssiv4' \«»r. A new trial on the ground of exeebsive ihimages ( t'2;J0) wasrefnst'd in an action for assault and battery, defendant '■ing a public ollicer, anputt' hi'tween them relative to nuitters coniiected with iltiendaut'h ol'hee. Wihoii v. Smunlrr^, lid. J. 1882. 1^ \oiiiiii:ii 4laiiia;;4'v. A new trial refused to the phiintilf in an action against ii'lustice for false imprisonment where the verdict >vas for nominal damages, though the conviction and warrant of 'omuiitiiiuut Were illegal, the case having be(;n lairly hd't "Jthf jury. ,s,7",(// v. 01 u--; 4. All. :MM. 920 NKW THIAI,. If* Iiiiiii:il4>i'iiil 4'% i«l4>iitiii:illii4>s.s oiiuiioiim In ciu action a^^'ainsfc three defendants as i.'xcciitors, twn of whoui had fully administered, and the auioiuit in 'in- hands of the other defendant was ver\- small, the Cn.iit refused to set aside a verdict in favor ■■ all llie (Icfcndaiits. <')■()< >/,, slid III: V, MrJuirhnif, 2 All. .»l'i. :2l--^ui-|>i-i>4>- I>4'l4>ii«l:iiil% kii4>li4irii I>4'r4'ii4l:iiil ii<»t Itciiii: «-:ill4'enefited his case. Tuffs \. il(tthll4l4'l'. Evidence rejected at a certain stage of cause, but not subsequently tendered, is no ground for a new trial it it las not been al)solutely rejected. IhuL *J-1 i:\|M'4'*>Moil 4»f 4>|»iiii<»ii 4>i .lii«l|;4' <»ii vtU'vX ol <■^i• 4l4*ll4r4' — I']vi4l4>lir4> II4»I |4'II4|4'I'4>«I. The expression of a wrong opinion by the .Judge oa tli' efftct of evidence otiered, upon which the council witn draws it, is not a ground for a new trial. The evideiv •should be distinctly tendered. Uiwl v. Mci'Jroti. :$ All. -I'- iws" M'.W TlilAL. 921 on n; \4i4>ii<*i-:ilil> ol' S«M-4»ii4l:ii'3 <'vi- MMlioiii III liial. Il sicondai'v cvidtJUM' ol' u |i;i|i!r is iKl.inittcd \vitli(iiit iiliiiction from tile piti'ty oi\ wlinm n notice to [trodiicc lias iniii served, In- cannot :it'(ii'\v;ii'ds on motion (fV n. now trial object tluit tli" notice to inodnci: was too .ucntral. /,'«' V. Lindx'ifL •> Kirr (il."). '11 Ill«illlliri«'ll4'> 4»t <-\ i(l«'IIM'4' fl-illKl. [n trover tor timber seized l)y tiie del'endiiut, as Slierit'f 1 Saint .lolm. iind(r a //. /'^, issued agiiinst I', at the suit • t S. I)., which timber was claimed l)y tho })hiintit't', as trustees under a deed of assij^nment iua(h' by !'. to them, i.\|)resHed to b',' for the j^^'neral beneiit of thi' (•reih'tora, and txiciited just hcd'ore the signing of a judgment in S. and I > suit, mill the intent of wliicli was to [)revent liis pm- [ity lieiug taken under the execution u])()n such judg- iiiiiit. the case went to the jury upon the (juestion of fraud iut'it iissigmuent, who found for tlie (h'fendant. Anew trial Wiis granted on payment of costs, it appearing tliat 1'. was insolvent at the time of tlie assignment, tliat an actual iklivery of the timber had been ma(h' to the phiintitVs l)(,fore the issuing of the,//. /(^, and the evidence being insufticient ill till o[iinio>i of the ('tjurt to shew that the deed was not intended to i;e for the beuiilit of tlie credit(»rs as e\[)ressed (11 the face (if it. Uiniirmd v. WliUc, '1 Krrr :{()l. 'i*- Although tile IxiiKi liih'H of a trust deed, where - I'vtlie drbtor's property is all assigned to trustees for the Wiielit, ii; the lirst instance, of certain preferred creditors, ami !'ftei\\;u'ds for tin benefit of all the creditors generally, I- :i iiuestiou for the jury, an.l luss been so left to them by till .ludge. yet the Court will set asidi' th( ve.'dict, ami -".ant a new trial, where the evidence d.ocs not appexr leient to warrant the, inference of fraud wliicli the iurv iitV' drawn, I',iiruli,(ii, v. Uliiir, 2 Km oTI. •'■* I'llMMl s|ioil loi- .|MI'.V. "n a i|Ue8tion, whether the sale of a horse was fraudu- "iit or not, the jury having decided in the negative, the ' Hin refuHtdto disturb the verdict: the (lurHtion having 58 np:av trial. been left broadly to the jury upon evidence wliidi wn.s r,.. eoncilable with either view of th(> case. Lifth' v. .Jn]i,i.s,i,i 1 Ken-im. :tO .4(liiiiiioii ol irn|ii-o|>4>i- <>\ idciic*' imdi'i- |»l('ii Wsiiitol ol»iecfi4»ii. AVhere a matter ol' defence, which should liave been pleaded e.specially, and on which the decision of the case mainly depended, was ur<,'ed to the jury without objection. and the case was fully tried, a new trial was refused on tlif }j;round of improper admission of evider^jc^ of such defeiict' under the general issue. Broioi v. Cniund, 'iS All. :}](;. ■:il in trespass for impounding cactle, the defend - aiit pleaded "not guilty," and at the trial his counsel opened a defence, justifying tlie impounding the cattle (hniuujt' fcimnnt and examined several witnesses to prow it, the plaintiff's counsel then objected that the evidence wa^ not admissible under the plea; but further evideiict was received, and the defendant obtained a verdict, i'ht Com" refused a new trial on the ground of tlie nupro] admission of the evidence, the damage, if ;uiy, 1)o:l very small. Qutcrc, whether the plaintiff had not waived the (il)i' jection, by not taking it liefore the defendant <:;iive any evidence of justification. Cinnphcll w Whci'i'f, I llan.'l'n'.y Wl l'A('<'<<>»^«9. :t;t AllcKSilioii] of siu> l:ik4>ii Cii«>toiii in- viili'23 •(■ wllR'll \V!IH IV- 'AttJi' V. .JohlOi'iii) iiidev i»U'JH»iua* liould have been icision of the cas<' without ohiection, was rehised on tlii' ^•0 of such defence' ; eactlc, the deleUil- c trial his couus.-l ounaiuj; the cattl- vituesaes to V'l'ovc it, ,uit the evidence v,;i- turtlier evidenc* nv;- , verdict. Vlu Cour u\ of the improiM uia-c, if any- ^>^"■^- not Nvaived the obje. aolondaut pive ='«:> ,r/.vr.-, !//'<"■ -'^'■'• , .listreBS, the law «a- uud a verdict for iL. ,al, thou};h theyj.^ davaaROS only ; ''J >^' ^ n. only grantuW'^ '^> ru iuk«'W lUioto"' ill- ;uritour aB tlie fouU'' lofondant took lie, * Itoui pv tboplaintit^-;^' no] ov* ,d 18 luva; riie objection should l)o taki')i by dcmurroi- (M* luotion in arrest of judgment. J}iy''u v. y-.'//,-///, 1 All. 187. hi an action \>y a surviving partner, a v ;rdiot was given tor the defendant, on proof of a deed of assignment from him to llio plaintiff and V. in trust for the benefit of credi- tors, wliieh liad been executed by the deceased partner, in tile name of the fa-m, and released the debt due from tlie ijefendant. A new trial on the ground of surprise was I'e- i'lisi'd, though the plaintiff was absent from the country at the time the deed was executed, and knew nothing of it till it was produced at the trial, and the deceased partner was nhown to be in a weak state of mind at the time it was executed. 'J'Udalc v, Jlartl, -1 All. 257. :{.V .hi(l|L::e i'iviii^^ ('vitioiicc :ttt4'i' 4-ltsii';;r lo jury. It is discretionary with the presiding Judge at what time he will receive evidence on a trial; and where he rj- ceived evidence on the part of the plaintiif, after summing up tilt jury; and after tiie defendant's counsel had consent- iil to a verdict, subject to a motion for a non-suit, a new trill! 'vas refused. Oidfoii v. Reel, (! All. -IH)]. >•.■ Infra r>8. iU JiiKM— S€t'l:ilioii. Tlie fact that a juryman who was open to challenge on tlu: ground of rolatiousliip to the defendant lias served on till' jury is not pur .na a ground for a new trial, there being noi'vidciieo of mis-conduct in the juror and the verdict nut 'tli.rwise objected to, and the defendant and the juror both jWi-aring that they wore not aware of the relationship at till' time of the trial — oven though the |)laintilf wps not aware of it either. Bislntp v. '■'>//, .1//. :$Hlt. "^'■f Infra IV. 5. '■'* Ki'ph'viii >iiiiullii4><«!4 of r«'t'ov<'i-y. Ill an action for replevin for logs the plaintiff' was en- titled to recover a small portion — about (},()()0 feet — but 'ht jury found for the defendant, a new trial was refasud ^s it could only have been granted on payment of co.sts. 'i'mpkm V Tibbds, 1 J In, I. 317. ^^ <«?* 924 Ni'lW Tl;iAi.. UN— ICcplox ill Siil»>«laiiti:il 4|ii4-xli4-ii. It is no grouuil for a now truil in l!([iit vi)i tliattl. juw liave not distinctly f'onnd on the sevtval issues, it hnuf, understood tbat tlic substantial (juestion avus to wIkhh tli. l)roperty in dis[)ut<; belonged; and that tlie Court ini^lit enter the verdict on the several issues accordinj:;!!}-. imn: V. Mxirrtiji, r> All. 1 1. :SO— Fi-siikI iiiK-oiili-adirtrd— ^ii^|>i4'i4>ii«>4-ii'<'iiiii*«f:iiM'<'> In an action on a poJicy of insurance, tliuuilily of witiK'SM. Where a case depended upon the testimony one •\vitiu->. wliose credibility was properly left to the jury and tiny found a verdict against his evidence, the Court rcfuscil fi Hew \hl W'nrtiiiiiii V. M>trf<:)\ :) AU. :{0'.i. I I !\o 4ti>«|MM<'iiil of lau I'laiid fiir.. i'lrililHl- it> oT \vilii<>M<>> '<'iiiiiiil:itiv4' <'vi4l(>ii4-4>. \Miere there is no disputed point oi law. but tin re- turns on a (piestion of fraud, and depends u})on the oivil- iliility of conflicting testimony, tho Court is reluctant (■ grant a third trial on the ground that the verdict is again-* the weight of t videnee. Smith v. Scill, 1 .1//. 10"). Neither cumulative evidence, nor evidence lueixly i discredit a witness, is sui'lJcient to obtaiu a new trials the ground of discovery of now evidence. Ih'ul. 'I*i -i\4'\t l> «ii«>cov'4'r4'4l «'\ i4U>iii-4 4'iiiiiiilaliv4-. Where the estate of the plaintiti, claiming undri will, was subject to a condition sabseqiient, and tin fendant endeavored on tin trial to shew a i'e([U(?st ii refusal to perforin the condition, in order to defeat t' plaintiff's estate; and newly discovered evidence hwain- on that point is cunndative, and is no ground for a w^"' trial. iUh' d'lh. Mtiirx \. liahii t'lai, ('» All. S*,t. NEW TRIAL. <)'iri xiililliiiC'ill'l"""'- lit liii|M'(>p'<'>' rtioii of'cviiU'iici' liiiiii-.itri'iul T<><<- tiiiioiiy. Where the (question in an action was the true dividing line Ijotwoon two Crown grants, and a subseciatnit grant from the Crown was improperly received in evidence, a n,v trial on tlio ground of the improper recej)tion of this , \ 'flfnice was refused : it being evident that it had no bear- i:v^- on the ijuestion in dispute, nor any inliuenco on the niestioii left to tlie jury. Carffr v. SniDtilrr.'i, (5 AU. 1 1^7. 11 l!ii|M'<>|><'>' :i(iiiiissioii <>r ('vi Witlidi'a \v:il. Tliongh iuiiir()[)cr evidence of damage; has been given, if > h[9 lieen expressly withdrawn by the judge from tlio con- -iileration of tLj jury, and by subsequent evidence in thti ause, it becoms immaterial, the Court will not disturb the '■'i'liict oil the ground of its improper admission. Spun- v. i/'Vr/ Miiiiii'i Co., K'lHt T. 1S71. i.'> Jiii'.v >«<>|>:irr.tiii^: afloi- fli4> .l::fli;<>N <'li:ii'm^<>. Tlif Jury se])arating after the Judge's charge, and uelore verdict, will not invalidate the verdict, if there has l)(?'.'n no tanijiering with tliem. Lyiiihiirv \. Ih-\'rhiu\ llil. 7". 1S28. U>-.liii'> lodifiiiu :iimI lko:ii-4liii^' :il |»l:iiiiliir% lioiis(> — \«>('4's»iiy— \o iiii|»r<>|»<>i' 4'oiilaintitf's house after completing the view — Ifeparatiiig ; and there was jio complaint that tlio ■ Viliot vvas au'ainst the evidence. .Sy* ■//■•.■ v. Ticnholin, 1 ■^'" ^iipra 11. :50. I< t'Liiiitili nitillcd 4>iil.v to iioiiiiii;il daiiia^^cs. \\\i< I ■ till' Judge improperly ilirected tiie jury to find for rmi^^ <<'^(i NMW TKIAL. tlic plaintilY with nominal dauiiigcK : but they fouml foi- dofen.innt — the Court refused a new trial— it boing an action iv^'ainst the SlieriiF for an escape, in wliichtlu' plain- titt CO aid, at iiiost, have recovered nominal dauiai:;(>. AtL'niHoii V. Mih-hcll, C. All '.][,'>. 4N— Ko.irial dr K. Iinlid (■(,. V. I'unl, 7 Moores P. C. 101). ) 4!> -l']viii4'(> iiiroiiMisioiif -I'otif^cssioii. The defendant claimed a lot of land by ii.lverse posses- sion, stating that he had been jvut in possession by the owner (since deceased i more than twenty years before tk action. The land wa^.; principally wilderness; and tlit jury having found a" verdict for the plaintiff for all except the improved land, the Court refustd a new trial— tlio defendant's evidence of having been put into possession being inconsistent with other facts of the case. V')c v. (iiiimii/, 4 .1//. (!0i2. •lO IVoiiiiiial 4liiiii:i;;<>s. The Court will not send a case down to a new trial to recover merely nominal damages. Sec Bdijca v. Um, i Tlan. 27. i-')I-ini*.4'oii«liiii oljiiroi' OI».ie< in. A inistiike in tlin jiiratfi of a ///x/ pr'nis vooord is not a around t'of a tirw trial, pithin r v. (lilhrrf, 1 All. aO."). .):t-Vsii'ianr4' l>4>«'lai-ali<»ii siiid iwcortl. A variance hctwccii tin; copy of doclavation delivevt;;! and tliu nisi j)riiis record, wliicli did not appear to have mis- |i il the defendant and eonld not reasonably do so, is not a .KHiud for a new trial. If diseov(ir.'d before tlie trial, it !:li^'llt 1)(! amended on motion. Portland b'errif Co. v. Pratt, ■1 Ui 17. '^1 -illlCIKllllCIII lial4'll4>KM Ol — 4Utll««4>llt I'llIC A consent rule was entered intc by mistaki,', for more lud than the defendant claimed. The day btdbre the Cii'ciiit Court he obtained a Judge's ordir to amend the r):is(.'nt rule by conlining it tt) the land in dispute ; the I'iaiiitilf entered the cause tlie Ih'st for trial, and a verdiet was given for the defendant, field, Tluit the lateness of theaniendnient was no ground for disturbing the verdict, and tluit if it was likely to prejudice the plaintiff it sli')uld have 1) '611 urged before the. Judge. !)(}<' v. Baxter, 2 .1//. iiTT. ')•'> -Point iM»t diNtiii«>il,v r4>s<>i'%'iMl :vii«.tak<; in Htatiitf* <';>i'rt'ctioii. By the accidental omission of the word "not" in the lliv. Stat. (Jap. Vli't, the action for use and occupation wa.i !^iveu on a demise by deed. In assumpsit for use and occu- pation on a verbal agreement, the Statute was not brought to the Judge's notice, ])ut it was objected generally that the 'laiiititf could not recover. On a verdict for the phiintiff till- court refused a new trial — the mistake in the Statute bviug been rectified. Seerii v. P>rayle}i, 3 All. 815. In such a case the defendant should have tendered a 1)111 of exceptions, and not appealed to the disci'ctiou oi the Court. Pad. »« IriX'U'vaul tosliiaioiiy-Xot •il to jaiy. A now trial will not be granted though evidence has I'tun improperly received, if such evidence is altogether "'relevant to the issue, and was not submitted to the jury. II NKW Ah. !t--N utiil tlicir verdict wiis cxpi'osHly <,MVcn od ^'rounds fntir-lv il)ii4T |»n'H<«<>i 4»|iiiiioii oi .liiiluv. Where evideiuu' in reply is pressed in ajj;iiinst tin; opju. ion oi' tlie ,iu(i-'j;c! a new trial may hi' p;ranti'd, hut \vli(!tlier it will iie ^'ranted or not, must depend uixm tiKicircunistniiCis of the case. Mrhoiiald V. Cininiiili;i, '1 l'ii;i. 'IH'I. •"(M -Tiiiii' ol* ■'<'4'4'i\'iiiK: <'vi4l4'iM'«>. A new trial will not ite j^ranted on the ground that evi- dence otherwise iidmissihle has Ix'en received at tlu' wroiii,' time- no injustici' heinj^ shewn to Jiave heeii done liy its admission. lln.-). .»!» Iii4-4»ir4'4-| 4>\ i4i<'ii(-<> \4» :i |>|»l i4-si I ioii l«» li:iv«- ii •>lrii4'k 4>iil. I'Mper writing- admitted in evidence, defendant not ciili- in^^ witnesses to prove it was not written hy him. ami win n tliis was proved, not having moved to have painr with- drawn fi'om consideration of the jury,. defendant could iint avail himself of its admission as a ui'ound for new tii.il. MhittiiLrr v. Wclih, 2 Vinj. f d.j. 1»0 Iiiii!isit4*ri:il 4>\ i4l4>iir<> Siil>s|:iiiii:il <|ii(>k,|i4»ii. When the suhstantial (jui-stion in the case was wJU'tiki' a sum of money was paid as a. settlement of accounts, tlif Court refused a new trial moved for on the ground of mis- direction in the Judge leaving to the jury whether a dratt for the amount was a settlement, iio draft heingin eviddiL't — it hcing quite immaterial whether the money was yM \)\ means of a (h'aft or not. ■Ioiu'k v. Mc1iiU\>;]i, •! /'//(/. ;14:I, (»1 — DiS4'4»V4'ry 4>i 4>VI4i4'll4-4> <'4»II||-Sl4li4'l4>|-.V SlliillSI Vifs Oil •«li4'\viiiK^ 4':iim4'. When the defendant on the trial swore to a linal stttlr- ment and an i)rder given plaintiff for the halancc tli>' Court refused to grant the plaintiff a new trial on ;ii! affidavit stating the paper sworn to as having heen an onlw had been found since the trial and tliat it was not an onler but a statement of an aecount with anothtn- party, lln' m:\v ti;i \i,. ii'iij II lo li-.ivc ii iilaiiitit't' should have i-cldittcd the tcstiiiioiiy its fo the jrttlfiiK lit ainl order iiud ,i;iveii sccoiidiU'v ovidonco of tho eiiiifcnts of till! i)iip('r lii'st proving its loss. Tln' iiirxliivit used oil siicwin^f cause a.^ainst tlic niic ('iintradiL'tcd llic [jlii'iitilf's alTulavit. Ciir v. limit, i2 /'»'/. 71. li'i ,llll I'tlt'l**. It is not a fj;fomid lor a new (riiil thai tlic •hid;'!' lias N|ir('ss('d nil ojiiiiioii to the jury upon a (|iiestioii of I'act^ |irnvi(lr(l he dill not witlidi aw flic c(Uisid'i'iil ion el' the (lUlStinll iVoin tllelU.e\eU tllOUcJi t||f opiliinM e\[)l'CSSe(l WaS incorrect. /''"' (Irni. I-'iiini ( Ihcr v. Xniis -J /'■'/. ill I. «ii; III "11 action of ejectinelit, where the del'cndailt ^^^laiiiicd title liy possession, and relied on the; i'act that, the ililVndinit'p father had cut woixl on two occasions spoken of ;iii(l lu^ had i)asturcd his cattle tln're, it was held not impn^lier for the iud<^e to express the stron<,' opinion which lie iiitcrtiiiiicd that the acts relii^d on were, under the .■iivuiiistiinces of the case, mere acts of trespass, and not aits of [)ossossil l^iitry into lM»ii*i<' l>y i-i;;liHliil <»u iicr — l>ii-li4»ii of .iiMl;;<> — !*l»(ioii of 4>viiM-<' Niit»<»4'(i«iMif u illi-;sessi'>n in the niaiiner 'latvil ill the plea. The [)h'a. stated that at tin; time of the alk^eil trespass, the defendant was possessed of a dwelling limise wherein the plaintiff, Margaret X;t|)i( r. was trespas- ■^iiiA anil uiakiug a noise, that tlu; deteiuinnf re(pu.>t< d her IMAGE EVALUATION TEST TARGET (MT-3) I/.. V ^ 1.0 I.I 11.25 |50 ""^ WS^ t MS UIO U 11.6 Hiotographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, NY. MSRO (716) 873-4S03 ;>^ '^ V \\ 4 ^ <1> J A 930 NEW TlilAL. to leave tlio liousf whicli slic refused to do, and tlareiipou he gently laid liis hands upon her in order to remove her from the house, doinfr no more than was necobsary for that purpose, which were the alleged trespasses. Held, (bv Weldon, Fisher and Wetiuore, J. J.,) That as the case turned upon the evccss of force used in the expulsion, and this was fairly left to the jury, the use of the word "peace- ably" in that connection was not misdirection, and that defendant was not entitled to a new trial : hut (hv Allen. C. J. and Dufi', J., (Unsentinn,) that it was not clear that the j' y had not been influenced by the the word " peace- ably,' nor that they had not given damages for the forcible entry a-: ,(M na for the excess of force used in tin; expul- sion. . :'. Vt, (by Weldon, Fisher and \Vetnii»ro. .1. .1.,' That Rh ■lie question as to whether or not the fcuiah' pLiiu- tiff contril)ated to the injuries received while being expelkd from the defendant's house by her resistance, or by her exertions on the subsequent day was involved in the ques- tion of excess submitted to the jury, the want ot morf sptcific and particular direction on this point was not ground U>v a new trial: (by Allen, C. -T.. and i)utT, J.. tUsnt'iitinti,) that it was material that the attention of the jury should have l)een drawn particularly to the question whether her own struggling and resistance had, or liml not in any degree contributed to the injuries couii)laineil of, this being a matter which might materially aft'ect the damages. The defendant's counsel requested the judge to lea.ve several questions to the jury, the substance of which was cimtained in the questions submitted to them, and the request was refused. Hcltl, Properly so. K., a former owner of the property in question, stated in his direct ex- amination that he made no agreement with N., that she was to receive whatever sum the property sold tor, over $1390.(10, or any sum whatever. The plaintitfs couu- sel, oncros-examination, holding a letter in his hand and reading it, asked K. if he had not authoriz:ed one S. to write a letter to N. making such an agreement. The jury were directed that the evidence on that point did not affect the case, and it was substantially v;ithdrawn from their consideration. NEW TlilAL. 93^ //,/(/, I'liiit tlio cvidfjicc was proporty received, \nit that even if it v.aH not admissible, its reception was not ground tor a new trial, as it had been \\ithilriiwii from the con- sideration of the jury. Xapiriy. Firiiuaon, '2 V. (("/». 415. ft.)-i]\r4**t*>iv4> «ltlltlll^<>«•. The plaintiff, travelling on the Intercolonial llailway on a through ticket from Picton, Nova Scotia, to St. John, was riMjuested by the defendant, a conductor, to give it up and accept a conductor's check instead, in accordance with his instructions received from the superintendent of tlie road. On his refusal, the defendant stopped the train and put the plaintiff oft', using no unnctcessary force. For this the jury gave the verdict for §500 damages. On amotion for a new trial, the Court (Wetmore, J., dh^cti- tknte) refused to disturb the verdict on the ground of I'X- ctssive damages, though admitting them to be larger than tlicy would have given under the circumstances, Morfo;,, V. I'nirtktt, 2 I'aii. 215. «« Ton. in actions of tort, the mere fact of the damages being iiigh and more than the Court would have given, is not a Mitlicient ground for disturbing the verdict. Urt'iriti;/ v. I>>rrymmi. 2 Pii;/. 515. <>7-Ej(>ctiii4'iit -|<4>«>»v«'i'y 4»1 |>n'iiii«»4><« in 4'Oii*«4>iif rule nieiitioii4'«l— D4>l4>ii4laiit 4>iilitl4>«l t4» |>iirt. When the })laintift" in ejectment recovered a verdict for tlif whole of the premises described in the consent rule, tli( Court refused to grant a new trial, even though the flttVndant might be entitled to a small portion of the I'lviuises. ])ar (Inn. Mrhcinie v. }[o>ihfi\ 2 /V/. nnr>. <>^-Olije4>tfl4»ii \vlii4*li llli^llt li)iV4> l»4>4'ii Iiik4'n 4»ii trisil - Want ol All4^Kali4»ii in rliiritti4»ii. When the declaration did not oblige any usuage to carry deck loads in the trade between New York and St. •'olin, and both parties gave evidence in regard to such "suage. the one to establish and the other to negative any sii'li usage. It was held. That an objection on that ground tiiken on motion for n new trial was made too late, and If 082 NKVV TRIAL. »iii that tlit^ Court )ni,!:;lit allow iho plaintitV to nui. n,l th,.. (loclaration. or aild a ii'W count, ('niiifrnn v. h'.iiirill. 1 /'. ,( /;. <;i7. 4if> \ <'i-ii<-<' .liiry iiiily coiii'l Jiiilpi' \ <>i-4li4-l ill liiiiiioii :iu:iiii«t «'%'iil«'nr4'. Win re the County Court -Judge who tried tlie cause and who had the advantage of judging of the manner in wiiieli the witnesses gave their testimony has after judgiiieiit uml deliberation come to the conclusion that the verdict is against the evidence, the judgnnsnt will not be revi-rscd uii slight grounds. SinitJi v. Andrews. 1 /'. ,i /.'. ."dl. 71 Bft4'l<>:iN<' y:i\4'ii I'laiiilill iioftvillislsiii4liii:;^|ti-04'<>«'(l iii^ l4» li'isil l'l'4>|>4*r 4*4»lir«>4> |4> a«l4»|»l. Wlu're after notice of trial, the parties agreed to settle the suit, and a release was given, but the i)Iaintiff witlidivw any further notice to the defendant and bis attorney aivi in their absence tried the cause and obtaine(l ii verdict, tin (^onrt refused to set aside the verdict and entii' a discii- tinnance — the proper remedy being to move for a new trial vu the grouiul of surprise and then to [jjead the release I'liifi ilitrr, i'(HiliHi'<|ii4>Ml— Kiil><«4'4iii('iil niolioii. When a plaintiff was non- suited at his own reijuest, in conseciuence of certain evidence given by the defendant, he cannot move to set aside the non suit on the ground tliat such evidence was improperly admitted. //'*/«'•■>' •'. jmiiim r> All. -i^'J. -r*-.' NKW TKIAl,. 933 «li-«'nMlilinu l>iiiioii auaiiiM inliiim»n»<'''<'«' ?:)-Ti'isil ol Iiiiil4'f4'ii4l4' iilloi'iir.* . W'lufi ;i rausc w.as tried in its order Jis unik-l'ended, in till' abseiift {tf the defendant's attorney who was prevented fi'm ilhiess I'roni leaving his lioiise, and n() application was iimdc fur tiuit- when thr (;;uise was called on : a rule n'mi to vt iLsiue the verdict was refused, it !i[)itearing that ttu attonu'V had Iieen in Court a few days huhtre the trial and li;i(l iiiiide arrangements that another cause in whieh lu was tlie attorney and which stood hi'^her on the doida't than this causi. should stand over in conseqnenei' of hi- illness. iSo/inry. i'.htou. ;"» .1//. 1(11. /I V(>rii l»y roii*><>iil witli l(>at <> l«> iii4»\'4' tor ii«>\\ li-i:il <>l»i«>cli4»ii iiol liikt'M :it trial. Wilt r( a verdict was taken for tiie plaintiff l)y consent, with leave to the defendant to move to enter a non-suit »>n points reserved, and with leave to move for a new trial on the ,t,'round of improper reception of evidence the defendant cannot move for a new trial on an<>ther and difTevc iit '.riuiid not taken at tlu! trial. />"< iltm. Ih'athmtr v. ii"jhi-^'i /'. i(- Ji. '2'm;. M-V<>r(ii<-i on is<.ii4> on inci-il^ Tintliiiu on wi-onu Wlnic- ill ii'iJevin the defendant was entitUd to a vnliet fiu the merits on one of the issues, but the jury fnmd for jiim on an issue which should have luen found till' thf plaintitV, the Court refused a new trial giving the ]iaintift' leave to amend the verdict hy entering it on the i^'-iU' whiuii should have heeii found for the defendant. /'■"■'■/• v. Jnhnxtou o .(//. :)")(!. ^<> ^iiiMinaiy action. A uew trial cannot he granted in a sunnnary action under the Act 12 A'ic, cap. 4(), tliongit the evidence ma> Imve been im])roperly rejected, or the jury may have been luisdirtcted. Cn/ v. Tenman, o .1//. 257. .v 4l«'iiiiiii(|, In u money demand, the sniallncsH of the verdict is a ground for refusing a new trial, ('ulthrcll v. Krith, ."> .1//. m li.iiM'tinciit — V<'i*4li<>l :i;;iiiii*>t 4>vi«l«'iinc il-m. Ilnrhf v. Ilnclir, l> Piiii. ;i48. ^O I'oiiit not i'stiM4'(l sti tritil— Nrltiii^ sisi«l«> iioiiimiii. \\'h«'ri' counsel in moving to set aside a uouHuit sou^^ht ti) raioe an objection not taken at the trial, the Court refuBed to consider the point. />'"' ilcni. McVeti v. Ihni'hl^ •2 J*U!i. :}72. Ml -Ord«;r iiii|>i'o|»<'iiy liiiKic uiicii iiol a ground lor a iK'w trial. Where a pa.ty on the trial applied for leave to iaiitii>l the declaration and the n,pplii:ation \s as granted and tk trial put otT — the costs to abide the event of the suit -snob ordnr though improperly made was not a gnnuid for a ikw trial. SmUh v. (iit-oir, 2 Puij. 425. M*> Paltry iiiatti'r ~4'oiii|»<'ii««atM»ii r4'4'»%c>i'Hl>l(' in .lii'>- tiC4>N 4'ourt. PlaintilY sued defendant for tiH'S[)ass to his land iy cutting a tree, the value of which was only a few shillings- Defendant neither acted wilfully nor claimed title to tk land, and the judge who tried the cause thought the action should never have been iu-ought. The jury rottirnid verdict for defendant ; and on motion for new triid. ti: Court held that, though in [)oint of law, defendant nii> guilty of trespass, yet plaiutitf should have sued iu i Justice's Court, if at all, and reluseil a rule for a new trial. Sinclair v. Spencc, 3 Ptuj. 2651. M:t -Title to Inuci Fart 4»l' KaiiiiiiK i»o»s('«.<«i4>it. As between parties without title, each seeking to man a title for himself, the Court will not interfere with tL linding of the jui-y unless clearly and unequivocally wroiii'. Kffstbrookif. v. Brean, 2 Puq. ;i04. NKW Tlil \L. ua5 , .'round I"'- -.« «l I siiitf silMdiit il*> iiiskIc oil |>i'«*\ioiis :i|>|»li4-Hlioii t» hr uitlioiit |ii'4'.iii4liiainst the SlieritV for escape. Ilfld, "!i;it this was not ground for a new trial, hut the propriety of iisiii}; them was (juestioned. Jniicx v. Ilninionl^ \ p. ,c /;. .ll ••>'(( 'siii>»<' li-i«' |»lil ill 4>ll 4-|'4>.4'\Slllli4i:itiOII ill^f4':i4l 4»t' :i«> rchiitliiiK:. r evidonci' whicJi wouhl havi' i)een receivable as rel)ut- tiu;,' evidence, is put in hy the plaintifii during the cross- ■xamination of defendant's witness, it is not a ground for a new trial, (uulard v. FvaVn. Jionm Co. All. 448. n<>l«'ll4lilll| l-4'imiillf ili<>. rttSV 4»ll SI Kl'OIIII«l Illll4'llill»l4'— Jll4lU4> II4»I i4>2l«'ill^: 4>lll4'i' I:i4>t*>> I4».illi'y. >"' As-;iinipsit fll. 40 a. Ltiiirli v. 1o'fiiiiiK:M;i'4>iiii4i 4MI u iii4*li riii4> iii«»i \va*< ui'siiit4'€l TiikiiiK «litl<>i'oiit Kr4>iiii4l. hi an action hy a Church Corporation, the defendant <'litained a rule uhi for entaring a non-suit on the ground that the induction of the Rector was not proved. IhUl, riiat he could not afterwards ahandon tiiat ground, and admit the induction, in order to defeat the action on a ditf.-reiit y;round. Ddc v. Str<,')i,'ii, 1 .1//. 4ir». |i li'lji"!'! i>:li; M:\V TillAL. tf— Allouiiiu I «-i-l:iiiil l<»i' iioiniiisil ». li. iif^roi'd li_v a note ill \vritiii<4 to pay A. f-iii in IuhiImi l»y a certain day. hofdi'c wliicli time A. assiiiiuul tin contract to C. Ifrld, Tliat J>. was not bound to rccoguixi tliu assijfiimout. Imt iniji;lit deliver the timla-r to A., which would ))(> a. good diHcliargc. (irocit v. W'illistnn, :i Ken "s, The delivery, however, not liaving been made until aftt r the conimeneAiiient ol' the iiction. ii verdii-t whicJilmd l.iiii ;4iven for tlie plaintitV was allowed to >tiiii(l lor iiomiii;il (larna<^fes. fh'nl. 5t— Wroii:^ \rf4lirl. I'll n if the jury lind a verdict I'or ihe del'iidiiut in an net of lihel, the Court will grant a new trial, if they tliinl; t verdict is wrong, though the -ludgc loft the ijiiestioii nf lihel to th(f jury witliout i^xpressing any opitiion upon f!i> writing. Amli-ftr^ y. W'ilxitii, '■> /\'rr/- KC). I 'l'i'4'<i l\«4». (^hi(/rc, Wliether where the two dei'eiulants arc cle.irlv liable, the evidence of the trespass by the three is gi'iiiiml for a. new trial. Sec AtLinsmi y. Mr.liilc/i, I .(//. •1\:\. a -.liir.viiiiiii \liiiiil> The fact of a juryman, who is open to chalknge, hiivini; served on the jury, is not, per ■•ui*t divi4l4*(l Kiil4> iiimi ^^raiit4'^.. It is discretionary with the Court on grantiiij;' :> i!<" NEW TlilAL. im^ ,.f,U«» -.ri:!""*' trial, to iXMiuii'o tlit; payinoiit of costs ; hut if tlu; verdict was coiitnin" to law or to tin; Judge's charge, it is usually lirautfd without costs, llir lluuk of I>. S. A. v. TrmiH, '2 Mi :m. » CoKitH Kill*! Mileiil si«> l». It' the rule for a uew trial is silent as to costs, the suc- cisslul party on the new trial is not entitled to the costs of setting aside the lirst verdict, ll'rhioii v. ]l'elSIIIM4>. A iicw trial having Iteen granted on payment of costs, an iilliinitiir allowed for shewing cause was taxed against tilt' party who ohtained the new trial. IfnU, That such taxation was wrong, and the costs accordingly entitled to liL'dediictod. MclldrJu'fu v, Ft'r(fiisoii,i] Kerr 'A')'). IO~<'«(«tl<>>— <'oiicli|ioii .>'oii l*iiyiii«'iit. Where a new trial has been granted on payment of costs, ami the costs have been taxed and demanded of the attorney of the nai'ty who obtained the rule, who was informed that unless the costs were paid, an application would be made to iliseharLjo the rule ; the Court granted a rule for that pur- pose absolute, unless the costs were paid in ten days after sLTvifjo. ScrihiKU' X. MvLaii'ildln, 1 All. 44(1. r()«t«> lo alu(l<> 4>v«'iit of •oiiit >iiiiii4^ |>ai'l,v siiri-crdiii^ - <'0<<«lM Of'MllCU iii^ 4-SIII*<«<>. •V' Costs 95. When verdict against Judge's charge, new trial granted without costs. Ihiv. ilciii. lilair v. (V/.mc, ;J All o()2. ll-Sovoi-sil 4'oiiiit!)«— V<'r4lict <>tii<>il:iiii:il»l4> on oik' -K*'- jcciioii ol u-itii«'!K»>— <:fow<>i-4'\:iiiicii:itioii -Evi4l(>iii>(>. In trespass qii vl. fren'it and for cutting down a mill dam. tile ilefoiidauts justified the cutting under a license from ■iieplaintifl' and as Inspector of Fisheries under the act 81 \ii;. La[). GO. Evidence of the alleged license was given on tlie cross^'xaminatiou of one of the plaintiff's witnesses, ^vlio was afterwards called as a witness by the defendant, iiiid his evidence rejected on the ground that ho had been iiaeady examined. The jury negatived the license and ol) ;.i!s ■ t' <)88 NEXT OF KIN. 'Vi gave a verdict for the plaintiff for $80 on tho count for breaking the cloBe, and $2000 on the count for cutting tln' dam on the ground that the plaintiff bein^^ a tfuaut wan bound to repair it. The verdict not beiuf^ sustainable ou the latter count, — Held (per Allen and Wetmore, J. J.) That the trespass being entirely unjustified, the i)liuntilT wan entitled to retain his verdict on the first '^ount, the evident of the license having been fully gone into, and the evidence rejected not affecting iliis part of the case. Per Weldoii and Fisher, J. J., That the evidence having been improperly rejected, the defendant was entitled to a new trial. Bdt$ v. Venning, East. T. 1873. Itl— Coutrudictory iiiid uiiMittiMfiM;toi>y«>vi«l«iK-4' Juditr satisfied with verdict. Held, (per Fisher and Wetmore, J. J.) that where tlit evidence was contradictory, and the judge who tried tht cause was satisfied with the verdict, a new trial should nut be granted : but per Allen, C. J. and Weldon J., that tLi evidence on which the jury found, being in their opinion very unsatisfactory, the cause should be submitted to tiie consideration of another jury. The Court being equally divided the rule dropped. Doane v. Doane, I P. (i li. 339. i:t— Ketu»»in|j[ to allow dei'eiitlniitS eoiiiiNcI to iiddre«>« jury— JiidK*' direvtiiiKJiiry to finti %'erdifl. Where in an action of ejectment, the judge who tritd the cause came to the conclusion that the le&uor of tln' plaintiff had made out his title, and the defendants had ci ;:a8e to be submitted to the jury, he was right in refusiii;; to allow the defendants' counsel to address the jury m\ urge them to give a verdict contrary to his direction. In an action of ejectment, where the plaintiffs case is wholly unanswered, it is the duty of the jury to find for the plaintiff, and it is proper for the judge to so direct them. Qiuere, Whether, when a jury find contrary to tlic judge's charge and direction, the verdict will be set asiili sib ji perverse verdict without argument, or whether t!if correctness of the direction will be examined into by ti: Court. Due dein, Moffat v. 'J'liompson, 1 P. d- B. 61(). NON PROS. 1>31» idMU«' Juclnivuioii niid Record. See New Trial III. 53.— General Rules 70, 130, 131. When not evidence. See Set-off ti. Entr} of PoMteii on, \vli«>i'«> diflvreiil iMMiic!^. See Replevin 4. :\OI.LE PROSEQUI. EniciinK iip.jii«lKin«>iit for «'ok|m. See Costs VI. 104. Failure of evidciirv. On the trial of an information for intrusion, a nolle imeind may be entered if the evidence fails to make out tlie case ; and it may be entered by the Solicitor General in the name of the Attorney General. Reef. v. Sti(.r>jes, 5 All 532. NONFEASAKrE. >^ee Pleading I. 67, Hill v . Alkiu. MON PROS. Judgment of Xon Pros cannot be signed in a bailable Mtion, unless the bail piece is on file, pursuant to the rule of Hilary Term, 2 Wra. IV. Wiggins v. Dihhlee, Trin. T. 1834. J!J- W- P DID NoxsriT. Cannot Ik? Hifrncd until the (lifcndiint lin.i filed an a]- JK ai'iUKic ; notice of iippcanuKM' is not sutHciont. CiiHliiihi V. dnnlo},, Mirh. T. 1872. ^«>tf iiiK ii<>ii«l4> lor ii'ri'Kiilid'il.v Hrliiy. Scv I'riictico VI. H. !>. r.vi4l4>iir«' 4»l .lii«l|fiii<'iil 4»r !>'»ll l''l'4>». ,SVi' Evidence II. 'ill. i\o:%.Ki>ii>i::\'i>. l*i-04'«'o«liiiK^ ill l-Iqiiity. Srr (ionoriil rules Hi), 111. %VIm'ii |»n»4T4>«liiiK:«> «'iiiiii<>l Im' laki'ii iiH:siiii«if. The phiintitt' remitted hills of exchange from tli!> I'rovince to 1!. in Kngland. Before the hills became dii', II. was declared hankru[)t in England, and the defemlct!.' as hia otHcinl assignee, received the proceeds of the liil!- Ilfld, (assuminf( the defendant to he liahle to the plninti"- for money had and received.) That the non-paymdit i the money was not a hn'ach of " a contract made wiuillv r in part" within this Province, and therefore that piocf i- ings could not he taken against the defendant undtr tl Act 18 Vic. cap. '25. Cnnic v. Cnzcnovc, 4 .1//. 578. I\«'C<><>iMit.v «»r 4»l»l»iiiiiiH: JlidK<'N oi-«l<'i' to iinMccd mj rtxusv. Sec practise VI. 11). NO^-Sl IT. l--<>l>if>clioii ii|»|»sii'4'iit oil r<>(*oi'(l. Where a plain tiiV has no right in law to rocovi nonsuit will he ordered, though the objection appears the next record. .SVc Next Cases 2, 3, (•. Fixlur v./ '^ nn: 35. •2 If the defendant takes issues upon tlu !:ia alleged in the declaration, and they are proved, tiu' I'iiii^ii cannot be non-suited on the ground that tlies-o facts doJ disclose a canse of action ; but the defendant must ::;J in arrest of judgment. Xcw Brinimrirl, hikJ A LamI Co. V. Kirk, 1 .1//. 443. ()/■(/ NONSUIT. !>ll :t (aiisr ol'iii'lioii |in»%'«>il a*« iiII«>K4'e noii-suitt-d on the ground tliiit till! facts chai'jj[od do not disclose a cause of .tction, Ciiwnnt V. Ih'Miihhuj, '1 Kerr ;")i)H. I Voliiiiiiii'iiy l»(M-oiiiiiiK ■ioii-*»iiit. Where a party voluntarily l)ocome9 non-suit, he cannot iiturwards move to set it aside, and ol)tain a now trial on layiiient of costs, 'riionic v. licilcU, ;) A'<'/t8;11). Ill When a plaintifY was non-suited at his own ivquest ill conseijuence of certain evidence givi n by the kfdnlant, he cannot move to set aside the non-suit on the >,'ioimil that such evidence was impropo'-ly admitted . llhmw nHliniM, o All. '1)V2. ^ Di*'<'»» ;«»•«:<' ofj II r.v -.\i» vorilirl -l*4»iiitM i'««»Mi «•«!. Wiien no verdict has been jj[iven, in consequence of the iisohargeof tho jury, a non-suit will not be granted ciiai)oint ivs-rvetl at the trial, hoc, deiii. Ihiiican v. OirintopJun', lin: 83. *> MsiK'riiil Allo};alioii -F}iiliii'4> in proof. Tliough the declaration does not set out a good cause of (Ktion, and was therefore demurrable ; if the alleged cause "faction is not proved, the defendant is entitled to a non- suit. Thus, in an action by overseers of the poor against t!k' (Itfendant, for bringing paupers into the parish, who iiecame chargeable — alleging that the plaintill's, as overseers "1 the poor, were compelled to provide for the paupers ; if it appears that the plaintili's were not overseers at the time tln' paupers were brought into the parish, they fail in proving a material allegation. (lilleapie y. Phillip.'i, 5 All. •221. *~0|>jiiiuii of .liifl^'c o\|»iM'N«»4'r(1irt by 4'oii«>oiit. \Uiere, at the trial, a non-suit was moved for, and upon litiiriug the opinion of the .Judge, a verdict was taken by consent of counsel, the question cannot afterwards be raised as to whether the case should have been submitted to the j'lry. ner.lv. Wel'loii, 1 Han. 458. NON-SUIT. :)il :l -riMi<«4* oliirlioii |»rov«>il a^ till«'K4'«»iiii. Where a party voluntarily l)oconios non-suit, he canm^t jitkrwards move to set it aside, and obtain a new trial on liayiuent of costs. Tlionic v. Jlcdcll, :) KcrrS'M). 1,1 When a plaintiff was non-suited at liis own ivijiiest in coiisiMjuence of certain evidence K'-'" 'O" the ikfiiiilant, lie cannot move to set aside the non-suit on the jjrouml that such evidence was improp^'^ly admitted. lUmcHW iminijH, o All. 282. ■\ Dhvhw.rnv or,iiir.v -!%«» vi'i'ilirl l*oiiil<>t i'osm v cd. When no verdict has been given, in conseijuence of the Lvihargo of the jury, a non-suit will not be granted on a point ivsvrved at the trial. Poc YlaK'riiil AIIOKati«»ii -Failiin* in proof. Though the declaration does not set out a good cause of aition, and was therefore demurrable ; if the alleged cause of action is not proved, the defendant is entitled to a non- suit. Thus, in an action by overseers of the poor against '111' (lufendant, for bringing paupers into the parish, who iiecame chargeable — alleging that the plaintiffs, as overseers "I the poor, were compelled to provide for the paupers ; if it appears that the plaintiffs were not overseers at the time tlu' paupers were brought into the parish, they fail in proving a material allegation. diUe-ytif v. Phillij)^, 6 All. 221. )-0|)iiiiuii ol .lii(|)M> 4>\|»r«>N<'«l -Verdict l»y 4'oii«ii>iit. Where, at the trial, a non-suit was moved for, and upon litiinug the opinion of the Judge, a verdict was taken by consent of counsel, the question cannot afterwards be raised its to whether the case should have been submitted to the jwy. lieed V. Wel'loit, 1 Han. 458. ; f^* ')¥ "' ' ^'ff' --rr-^^mm 942 NON-SUIT. §— AflTei' verdict but boroi'o recordiiiir. Qiucre, Whether a plaintii!' can elect to be non-suited after the jury have given a verdict, but before it is recorded. Sre Law ton v. Chance, 4 All 411. 9— Subsequent absent after argument. Where, at the trial, the Judge ruled that the plaintiff could not recover, an application to have a non-suit entered at the close of his argument on a rule nisi for a new trial, was held to be too late. Travis et ah v. Glazier, 2 Hm, 215. la Qiuere, If a non-suit is moved for on two grounds, the one tenable and the other untenable, and it is granted on the latter, whether the former is available for defendant on argument for setting aside non-suit. RnAo^ dem. Conncl v. Dickinson, 1 Tlan. 456. • {See Noble v. Ward, 1 Ex. 117 L. li.) II— Nominal «iainay:es— Refusal to aceede to voi'dici for. In trespass for false imprisonment against Justices of the Peace, where the Justices had exceeded their powers in committing the prisoner to an improper place of imprison- ment for contempt, but where the plaintiff had received uo greater punishment than he was entitled to by law, the Judge offered to direct the jury to find a ver.iict for the plaintiff with nominal damages. The plaintiff refused to accede and claimed substantial damages, whereupon the Judge non-suited him, and the Court refused to set the non- suit aside. Armstromf v. McCaffrey et al., 1 Han. 517. 13— Several pleas — Immaterial issues on sonic— Df fendant not entitled to have tindinfir of jury on. Where defendant pleaded four pleas, two of which were an answer in law to plaintiff's action, and he was non-suited, Held, on motion to set aside non-suit, that he was not entitled to have finding of the jury on the other issues, they being immaterial. Martin v. Mutual Fire Ins. Co. 3 Pn'J- 155. See Insurance 44. 13- Misnomer not a ground of non-suit if it be shewD NOTICE. 943 accede to voidin -,cs on soiiic-Df iidliig ol jury on. two of which were an the was non-suitetl, [it, that he was not he other issues, they nrc Ins. Co. 8 PiH- tliat defendant has not heen deceived and knows that the action was brought by the person who actually sues. Copp V, Read, 3 Pug. 527. l|-OniiK*tion ot material averment. Though the averments in the declaration are proved of A material averment, essential to the maintenance of the action, is omitted, the defendant will he entitled to a non- snit, though he might have demurred. MrVhd'un v. mim, All. 368. «>('vcral issues— PlniiitifT failing: in one iroinpr to cause of action— right to have finding of jury on other See Practise XIV. 17. Point not i'ai$ie«l at trial— not available on argument for new trial. ,^! Assessment. liMtiilnieiit -Notice for payment of. See Joint Stock Company 1. I'aiatioii ot coMt!4— Re view -Notice. See Costs. ««<:im c;iiaracter. ■Vf Crown Grant I 18. *'*'*''"""*'"« debtor's act— ertect of notice in "«ay.ette" »•* to jH'operty. |J ^V Absconding Debtor 10, 12. ' ^ ^!W' 1)44 NOTICE OF SET-OFr. Registry of mortgage not notice of iiifunibnuut to a subsequent purchaser. Itoa v. Poiifr 1 All. '271. .\ofic4> to ««<>ll Iniid iiiidei' Ii4'4>ii«i>4'— l*o«^lill^' iiiKl :idv(>i'. tiMii^:. Si'c Executors and Administrators V. 2. 1— PiirJ<4li School net— A<<»«C!«M>rM. Where assessment is made under the Parish St-lioo Act, the Assessors must give notice tliereof in the same manner as in cases of assessment for county rates iindtr Rev. Stat. cap. 5:J, sec. 1'2. Kv p((vU Stnrf, 1 Jlmi. Ki; •2 -IiiMolvoiit tlobtoi'— Order Coi* <>>ii|»|ioi-l. Where the creditor's attorney was in Court, and heard the order for pupport made, it is not required to ^ivo hira other notice. K-r jiarte Janline, 1 llan. ;"57*2. Publication of notice for "three consecutive (hiys' cannot be made in weekly newspai)er. .Sec Costs :>4 //. NOTI«'i: OF ARA:M>0\HE.\'r. Sci' Insurance 20. \OTIC'f: OF 44 TlO.'^i. " Action at law. IVOTKK or APFFAI.. *' Practice \ . ;i. NOTK'i: OF OFI F.\<'E. " Pleading 111. .\OTI4 i: OF l>l^illO.\OFIt. " Bills and Notes. \OTI4 i: III«II WAV>>»— \l/rFK %TIO^. " Highways 11. \OTKFOF :VIOTI0?V. " New Trial 1 — Piactice V. 1\ — Judgment as iiuas.- of non-suit 1. 28. -^OTK E OF *>ii:T-OFF. Sec. Set off. NUISANCE. 946 liiiv: siikI ii4iiHi:\T. Evidence of. Sec. Evidence IL 20. NOVATIOX " Assumpsit in. 54. .\i i«a.\ijui')'— .iHi'lMdictioii to adiiiiiiijiitri' oath Hce Criminal Law II. 21 — Perjury No complaint on oath. See Justice of the Peace IV. 16 «. Preiiiiiniption of liavins; taken oath. See Evidence VI. 1, 2. Information on oath— IV<>como%'«*. Sec Water Course. Corporation — Right to remove. o€f rp.4'rio:%'. Sec Use and Occupation. 01 PiTinixPN. Sec Insurance 19. PoKi^cKnion conflii4>«I to occii|»niion— Wi'oiiKliil rntry. See Possession 2 — Trespass I. 24. Oflor to suffer JudKnienf hy d4>funlt. ,SV(' Judgment II. OFFieE. See Appointment to Office. A|tpoiutnicnt to— Without liiiiitalioii, an nppoiutment lor life. ■loplin V. Davidson, Der, 308. TiiiMces-Fiiiiui? ofiirc iiiidci* net of Incorporation of Bank— Liability— Trnnre ot ofli«>o. Sec Bink 3. Trying: rii^ht to exercise ofiico. Sec Quo Warranto — Mandamus. ^w(>nrin{; into otticr— Proscribed tiino. SVt Commissioner 5. OFFICER. Sec Government Officer — Action at Law IX. Pi'oolol bring:— ArtinK a<* khcIi. 'S'r Evidence VI. 01HIS PKOBA^'DI. a. ,SV(' Defamation 14. .Siiiiiiiiai'y <'.K'Cliii<>ii(— KiilKciciicy ol |»rot>l Ity IsiiulhM'd. Siw Landlord and Tenant VIII. IttMliK'lioii orelaiiii by }>i-ool'of' K<>ii4M'al iivorsi^e. Sir J'lvidence XI. 49. Burpee v. CnrcUl. Fi'4»viiiK |>fo|»4>i'l.v lo l»<> ill the f.'i'owii in action ot n>. plcviii iii'M OH tlie il orders. See Privy Council. An order under the Act 19 Vic. cap. 42 requiring the gaoler to return the cause of a prisoner being dotaiiio.l in custody, must he made by a Judge, and not by the Court. Chnse Ex. parte, C All. 398. OrSTEB. Evi4l4>iic<> ol. Sec Evidence IV. 8. Broirii, v. Moore — 9 AUisnii v. Smith. OVRUn^OWIiVCi LA\D. See Action on the Case. III. OVEKSEKKf^ or POOK. ]N4»l a«>4'ouiitiiiK i'o*' iiioiiey. ,S'( (' Criminal Law II. 23. I_:\(>ec»><>tity of i^liewiii^: tlio taklii;; oat!i< .•'■ a ; ' -• Premises in the occupation of a tenant wevr >virietl to the Overseers of the Poor of the City of Saint John, for the nse of the poor. Held, in an action brought for the rent by the persons who were the duly appointed Overseers at the date of the will and death of the testator, aiul so continued until after the time of bringing the action, That it was not necessary to shew they had taken the oath ot oflice iis Overseers. Mnttheir v. Chittiek, 2 Kerr G'JO. PAIUSII SCHOOLS. 1»4(> by laiulloril. ivorii^t*. I iK'iioii »l n>' Wi^niiw Smith. 'i-Poi»oiiiil Ii:il»ilit3. \Vhere supplies were furnished to the defendant, an Overseer of the Poor, for the use of the poor of the Parish of Saint John, on orders from time to time sent by him as such Overseer to the plaintiff. Field, That he was person- ally liable for the payment of such supplies. Gdnlii'cr v. Mitttiieif, B Ken- (tOl. ;t -Biiii^iiinr paiiiK'i'K into pai-iMli— Action. Tlie Overseers of the poor, not having any corporate liglits, cannot maintain an action against a person who l)iinfi;s paupers in the Parish, who ])ecome chargeable thereon— such act being no injury to the Overseers indi- vidually, (lillespie V. PhiUips, 5 All. 221. Ovcrorcr^ iiiciirriii^ liability— Ka««tsii'|>oiiitiiient or<>oniniiKHioii<>i- of~.\ot ultra vir4>«>. S(e B. N. A. Act. PARISH OFFICER. 'V( Appointment of OHicer. PARISH SCHOOLS. See Assessment IL Tiii%t(>(>H divi«linK Parif^ili —Calling; ln4>(>tin^ l>oiil>i4> l>ur|M> •>•<'. A majority of the Trustees of Schools have power to divide a Parish into School Districts. K.e parte YeaU. 4 .1//. m\. An application to Trustees to divide a Parish into School districts, and to call a raeethig of the inhabitants m^^^^ffWf 960 PARTICULARS. to determine upon an assessment under the Parish School Act 21 Vic. cap. 9, may be made at the same time ; and if, on the division of the parish, three or more of the appli- cants are found to be resident freeholders in the district for which the assessment is required, the trustees may call the meeting without any new application. Ibid. A poll-tax may be levied under the Parish School Act. IhUl. Ser Common School Act. DiNiiii!t>«iiiff Teacher. See School Teacher. Parol aKrecnit^iit. See Agreement— Contract, PAROL EVIDG!V€E. See Evidence. Pai'ol gitu See Gift. PAKTieiJLAKS. Siiliiciriicy of bill. A VIll of particulars which gives substantial inior::^''- tion of the plaintiff's demand and does not confine the claim to any particular count, or mislead the defendant, i« sufficient to let in evidence under any count to which the same may be applicable. Grant v. AiHn, Ber. 259. The plaintiff's bill of particulars was dated at Liver- pool, England, and made up in sterling money. IkU, That without an affidavit of the defendant, that he was mis- led by it, it was sufficient to warrant the jury giving a sum sufficient to cover the difference of exchange. Campbell v. Wilson, Ber. 265. I>elect •supplied by. See Bills and Notes VI 14. Particular^! of itciii$> in Justices €ouit. See Judgment by default, 9, Jackson v. O'DonndL Demand of— Not a step in caus«>. Johnston v. Glazier, C. Ms. 141. Andrews v.IIouson, I All. 509. PARTNERSHIP. 051 «i|{iiiiiK.iii 4'ity Court. S'-e City Court. Ri>40vei'y iiiidci* Coiiinioii l^oiiiit— I'OiiN^el not claim- ing nn«1ci% in opening ciikv. Set' Trial. PARTIES. See Action at Law — Husband and wife — Partnership 5. PARTITION. A., B. and C, owned lands as tenants in common ; A. be- ing under age ber father made a partition with B. and C. in 1810 ; in 1814 A. married, still being under age, and her husband occupied the share allotted to her until his death in 1842, and six years after she objected to the par- tition, demanded possession of B., and brought ejectment. Hdd, That the partition having been fair she was bound by it, unless she objected within a reasonable time after her coverture ceased, and that under the circumstances six years was not a reasonable time. Qiuerc, AVhether a demand of possession upon B. with- out any offer by A. to relinquish any part of what she was in possession of, was a sufficient notice of her dissent to the partition. Qiui'i-e also, "Whether A.'s right was barred by the Sta- tute of Limitations 6 Wm. IV. cap. 43, she having brought her action within ten years after her coverture ceased, and within forty years after her right accrued, though not with- in twenty years after she became of age. Doe dem. East- kooks V. Harris, 2 All. 42. PARTJVERSHIP. Wht'tliei- contract |>er»iOunl or ivitii firm— Qucistion loft to Jury. Sue Contract 16. l-WtiHt constitutes |»nrtncrMliii»— Proof. \Yhere J. and N. B., who carried on business as general partners, had certain mill property and transactions rela- tive thereto, in the direction and management of which H. appeared to be taking a part, though tire nature of his m t^'ttt T^ ' If r <).V2 iwirrxKiiSHii'. agreement with -T. and N. B., or his interest in tlie mill, was not shewn ; and the phimtift', who had extensive tin i-. actions with the hnn of J. and N. B., stated an accuuiit with then), whereby they admitted a balance due the plain- tiff. Held, That H. was not jointly liabUi therefor, it n 't appearing,' that he was a partner in fact, or iield liims.J! out as such, and that his connection with J. and X. ];., being at the most a special partnership in regard to tljr Diills, would not make him liable for the general eii^iirr, . ments of the firm of J. and N. B., but only for such ;i> related to the special partnership. Circumstances wliieli are equally applicable to a projected company, or seciiritv for past advances, are not sufficient of themselves to niist a ])resumption of i)artnership so as to create a joint liability in two persons where the credit has boon given to one. Mcpherson mid (diothrr v. Ifonldii^ mid otlicr-'f, 1 Kor 430. 2 As to the sufficiency of proof of partnership this may vary according to the nature of the demand ami residence of the parties. Pollori; \ „ Cmuird, '1 A'c/y 'iiM . '* Under law allowing parties to be witnesses, it i- not necessary to call plaintiff to prove partnership, i-.* Kvidence III. 0. 4 Evidence of a witness who had dealt with all th. plaintiffs as paitners and purchased goods and sottleil accounts with the firm for several j^ears held snllicieiit t" prove partnership. Rankin ct al v. Harley, 1 Han. -71. •> -C'oiiti':«<'l— PartirM- lasibility. W. R., one member of a firm entered into u eontnu-: under seal, in his own name, with P., for building a veh.s i. which was, in fact, to be the property of the firm. Altci the vessel was finished, a settlement in writing of account- took place between the plaintiff (acting onbehalf of P.'aiui the firm, in which a balance was found due to P., wliic!' ^\. R., requested the plaintift" to pay. Held, in an actioi againsithe firm for the money paid to P., Ttiat, as it \v;i' not founded on the original agreement for the building o! J'AliTNEltSHIl'. 9oS the vessel, but under a separate agreement with the firm, — that thev were Hable. HurriH v, Itohcrtmn, 6 .1//. 19(5. .t ii-Artion!« by mid aiCiiiiiMt. A promise to one member of the firm to pay him for work connected with the partnership business, performed bv him for tlie defendant, enures to the benefit of the firm ; and the partner to whom the promise was made cannot sue alone. Hartlei/ v. Fisher, 1 .ill. G94. (i-e. A f^uarantee by one partner in the name of the firm for ii matter not relating to the partnership business, will not bind the firm. Marks v. Wriijht, Hil. T. 1828. PlendiiiK—Alleii^atioiis— Proof— Vuriniico. iVc Bill and Notes VI. 10, 11. ' Non-joinder of partner can on' be taken advantage of by plea in abatement. Kelly v. Bulloch, 2 Km- 699. «-Po\v«i'«« and iii«>iiibci'<<. One partner has power to compound a partnership debt, and may appoint an agent to accept a composition of such debt offered by an insolvent debtor. Rai/inondv. McMahou, \AU.5'2-L n-\ote ;j:i%'cii a«>> ^[iiaraiitcc— Aiitliority to bind Co- partner. It is not incident to the general authority of a partner to biad his co-partners by giving guarantees for payment of the debts of third persons, it is therefore necessary for a person taking the note of a firm as a guarantee to prove tliat the partner who gave the note had authority to bind tlif firm in that way. Stewart v. Parker and Fox, 2 P. a/)'. 223. lO-LiabJIit) of partner tor wrongrful acts. A partner is responsible for the wrongful acts of his copartner in a matter connected with the partnership I'lisiness done for the joint benefit, though he himself per- sonally had nothing to do with the tortuous acts. Brewing T. Berryman, 2 puq. 515. 61 If'' m 11 If! m: <)54 PATENT. 11— IJtiliility ot |»niiii4>rN -C;iT«lit of firm. V. iSc S. D. and ]]. entered into a partnei-Hliiii for Mic buying and selling of shingles. F. \- S. 1). to liirnlHli tlio capital and B. to purchase shingles ; i)rotits to ho ('(jnallv divided. The shingles to be shipped to F. A: S. at iJostoii and money provided by drafts drawn by D. upon tlioin ; tin business in New Brunswick being done under the name of M. t\: D. Plaintiff sold goods to 1). on the credit of the jjartnership and took his notes in payment. llrU, That the gootls being proper for the business of the lirm ami sold on the credit of the firm, the other partners wori liable, and that as regards contracts with third paities it was of no consequence whether D. had ndvanced bis proper share of the capital or not. Jones v. FaHdv i'Mliip— ^iiai4>iii4>iil iii«lii4-iiiu Itcliil. See Evidence. >«liitiit<' of LiiiiitsilioiiM— Fayiii4>iit l»y oiu' itaiiiior. See Bills and Notes V. 26. i]\4>culioii of 4l4><>«1 by |>ai'tii4>i-— lKiioi-an4-4' ni vn partner. See New Trial ITI. 34. Ke4'0|;iiitioii 4»f l¥arratit of Attorii4>y. Sec Warrant of Attorney 8 — P. 416. Plaintiff having reasonable grounds for believing that certain persons alone composed the firm. See Pleadinj,' McDonald v. Cnmminlll — llll4'|-4>ll4-4' rr4»lll ■'4'4':Ci|lt. Debt on a recognizance of bail — ^.judgment against the lirincipal, for l"2;] ; the defendant pleaded payment by the piiucipal, and gave in evidence a receipt from the plaintiff to him for 111, " in full discharge" of the judgment. Held, That it could not be inferred from the receipt that this bum was a balance of the judgment after a previous payment, but that it was taken in satisfaction of the whole, and tbeieforo the plea was not proved, (rnrcelon v. Eaton, :i M.m. i'iiyiiu'iil l»y liill AKoiit aiitlioi'if>i4>4l to vveitive. Sen Principal and Agent 8. .4<>«>iKiiiii«>iit— Acliml |»ayiii4>iit. Srr Now Trial II. 28. Payment 4»t rent. See Landlord and Tenant. I'uyiiu'iit taking ettae out ofStatiito 4»f' Limitations. See Limitation of Actions II. Kchiittal.'orprcsiiniption ol paynicnt. Sec Evidence YI. 7. Hoiioy pai4i under Miii^tniiit<«— AII<;Kaiioii<>»— :vioiioy. In an a;;tion to recover in this Province for goods sold and delivered in England, it is not necessary to aver in the declaration that the debt was contracted in sterling money, or the relative value of sterling and currency ; and the 958 PLEADING, m% difference of exchange ma}' be recovered under the com- mon counts. Campbdl v. JVilson, Ber. 265. 2— Part Pcrfoi'iiiiiiief>— DoiiiaiKl— Avoi'inoiit ol !siir|>|ii. sage. In an action of assumpsit the plaintiff' averred part per- formance by the defendant and demand as to the residue, which was not necessary, and failed in proving both. Hdd, That both avermnts were surplusage. Ih-oirn v. Frink, Ber. 363. 3— liiMifiieiciit Alle;;atioii— liitoriiiatioii. The allegation that the goods were imported into this Province from the United States, contrary to the Acts of General Assembly, in such case made and provided, is not a sufficient allegation of an offence under 6 Wm. lY. cap. 4, sec. 4, which imposes a forfeiture of all goods which shall be landed before thej' are reported at the Treasurer's Office and a permit obtained, etc, and a judgment obtained on an .information by the Attorney General was arrested thereon. Aitorneii General v. 250 Barrels of Fish, Ber. 419. 41— Demise. A demise in a declaration of ejectment, in the name of husband and wife, of the wife's property, laid previous to the marriage, is bad. Doe dem. Thomson and Wife v. Bar- nes, Ber. 426. 5— Speeial daiiiag^e. Allegation of lose and time and expense in regaining property taken under execution, evidence of expenses in proving the plaintiff's right before a Sheriff's jury, is not admissible. Qu— Assiiiiipsit on i^iiai-aiitee— CJoiisiiilti- rieiitly appeariii;^. The defendant guaranteed the performance of the fol- lowing agreement between the plaintiff and I)., dated 10th November 1849 : " Whereas B. (the plaintiff) has for some years past been acting as the attorney and agent in this Province for D. of London, in the general management of PLEADING. 951^ der the com- It Ol *i«ll)lH- in reaaining the Lancaster Mills ; and whereas the said D. has seen tit, by letter of attorney bearing date the 19th September iiist, to appoint G. (the defendant) his attorney and general agent in this Province, and has thereby revoked all powi'r and authority heretofore given to the said B. : and where- as ail action of trover has been commenced and is now pending against the said B. at the suit of W. and C. for the value of a quantity of logs which they allege to have been converted at the Lancaster Mills, for the value of which logs (if any) the said B. should not be held personally hable ; in consideration of the foregoing premises, it is agreed by the said I), to indemnify and keep harmless the said B. from all damages, costs and charges that may be awarded against him, or that he may be put to in his de- fence of the said action." Declaration thereon, stating that whereas before making the defendant's promise, to wit, on etc., the plaintiti" was the general agent of D. in this Province, in the management of the Tjancaster Mills, that an action of trover had beencommencd and was [)end- ing at the suit of W. and C. for the value of a quantity of logs which had been taken by the plaintiff as the agent, and acting under the directions of D., and in the belief that they w^ere his property, and that D. had requested the plaintiff to defend said action ; and whereas D. was desir- ous of revoking the power of the plaintiff as his agent, iind of appointing the defendant and the defendant was desirous of succeeding the plaintiff in such agency; that the plaintiti' agreed with D. to de- tend said action, and retire from the agency and allow thi defendant to succeed him therein, in consideration of leeuiving the agreement of D. to indemnify the plaintiff iigainst all damages, costs and charges he might be put to in the defence of the action of W. and C. ; and also in con- sideration of receiving the guarantee of the defendant for tlie due performance by D. of his agreement ; that D. did, on the loth November 1849, agree to give such undertak- ing, and thereupon in consideration of the premises, and tliat the plaintiff would accept the agreement of D. and act t'lion the .same, and would defend the said action, and w. m ri- [iin 960 PLEADING. would retire from the said agency and permit the defen- dant to assume the duties thereof, the defendant undertook and guaranteed to the plaintiff the performance of D's agreement. Held, That the consideration did not suttici- ently appear by the agreement, to suppert the declaration. Beattle v. Garbntt, 3 All. 1. 7 — Pi'oect^diiigs of i'ccoi'«1 — |i»laii«l«M'-.4llegatioii of iioco««- sary lacts. Where, to an action of slander, the defendant pleaded the Statute of Limitations, and the plaintiff replied that a previous action was brought within due time for the same slander, in which he had obtained a verdict, and the Court had ordered the judgment to be arrested, (setting out the proceedings of the Coutt as matters in pais, without any prout patct per recordum,) and that the same action was brought within a year of such arrest of judgment, conclud- ing a verification in the ordinary form. Rejoinder, That there is not any record of the several proceedings (setting them out seriatim) ; sur-rejoinder, a mere repetition of the replication ; upon demurrrer thereto', the Court were of opinion that the proceedings in the former action and arrest of judgment must be entered of record and pleaded as such, with a 2>f'o^i'i patet, and that the replication was therefore bad, but under the circumstances permitted the plaintiff to amend on payment of costs. Beardsky v. Ihh- hlee, 1 Kerr, 642. 8— Limit bond— A!>»siKiii>c— Aiieijratioii. Summary action of debt by assignee of a limit bond ; on demurrer — Held, Ist. That nil debet might be pleaded under the Act of Assembly as the general issue; 2nd. kn averment, that the assignee is the plaintiff in the original Buit in which the limit bond was given is not essential ; 3rd. A breach of the condition of the bond is sutiicieMtly alleged by the words " of which the said J. K." ithe principal in the bond) made default. Maxwell v. iiV,'i Kerr 69. 9— At^siKiivv of limit bond— Piaiiitifi in orlKiu**' **"''' .llust be apparent on the record. In an action by the assignee of a bond ftr the gaol PLEAJ)ING. 961 ation of iiccrs- limits, it is a fatal objection, even on motion for arrest of judgmeDt after verdict, that it does not appear on the record that the assignee was the pUxintiff in the suit on which the bond was taken, there being nothing to render proof of that fact necessary on the trial of the issue. Seinblc, The declaration should state the writ on which the defen- dant is in custody when the limit bound is taken. Camer- on V. Bcnrdsleij, 2 Kerr, 598. 10— A«vsii' on boiKl— Cloi'k— !Voii-«l:iiiiiiifi4-:Uiis. The by-laws of a banldiig company reqiiii-cd tliat tin directors should inspect the vaults and take an account of the cash, etc., once a month : in an action agiiinst the sureties on a bond given for the good conduct of a ckil; in the bank, the defendant pleaded that the bond ^va^ executed upon the faith that the plaintiffs would faithfullv observe the by-laws, and averved that they had neglectdl to do so. IlihJ, bad. lldd also. That non-ihtiinii/icatus was not a good pjea to an action on such bond. Jhink m New liniitsivick v. Wigrjins, 2 Kerr 47H. 14— D(>bt for penalty— I'lKU'i-f SI iiity. To a declaration in debt for the penalty of a boinl entered into by the defendants, K. and W., to the plaintili- (a company incorporated l>y the Act of Assembly 5 Win, IV., 2nd session, cap. 10), conditioned for the faithf;;! performance of K.'s duty as secretary to the compaiiv without embezzling, etc., and for due accounting upon notice so to do, or making satisfaction for any loss within three months after proof thereof aud notice. The defend- ant W., after setting out the condition of the bond on ovir pleaded 1st. nan c^if factum. 2nd. That if K. did not faithfully perform his duty or failed to account, notici thereof was not duly given three months before the com- mencement of tlie suit. 3rdly. That if the plaintitls weii- damnitied it was of their own wrong. 4thly. After settiuj^ out a clause in the Act of Incorporation ])rohil)iting tlic company from trading in gold and silver coins, etc., tlit plea alleged generally that the company did after the act of incorporation and the execution of the said bond, timk in gold and silver coins, etc., and employ their secretary K. therein, whereby K.'s responsibility was increaseil. Held, on demurrer, That the 2nd 3rd, and 4th pleas wdv all bad ; the 2nd, as hypothetical, neither traversing oi confessing anything ; the 3rd, being in the nature of /"" damniticatas, and not alleging performance of the condi- tion, could not be pleaded to a bond of this sort ; and the 4th, as not pleaded with sufficient certainty, nor answeriu? PLEADING. 963 iiificsitiis. Ity, nor answerin? all the breaches which might have been assigned, if the defLiidants had pleaded performance, ^[e<^ha)lics' Uluilc FtMiHi Compniiji V. Kirhji, 2 Kcrv 046. 15 K. and W. entered into a bond to the pUiintififs coniitioned that if K. shouhl at all times faithfully serve the plaintiffs Avhile he continued in their employ as their secretary, without consuming, wasting, embezzling, etc., their moneys, goods, etc. ; and should at any time while secretary neglect or -efuse to account with the plaintifYw wlieu required by reasonable notice in writing ; and if K. iu,d W., or either of them, should within three months after due proof thereof, either by confession of K. or otherwise, and notice thereof in writing given to K. and W., or either of them, make satisfaction and payment to the plaintiffs for the moneys, goods, etc., so wasted, etc., aud also for all such loss or damage as the plaintiffs might sustain by reason of K.'s neglect or refusal to account, then the obligation to be void. ThM, That the clause pro- viding for proof and notice restrained the preceding clause, and that the defendants were not chargeable on the bond in any case mitil after proof and notice. llfH also. That to make out a breach for not accounting, notice to account should have been given to K. while he was secretary. lUrhinks Whale Fishhuj Company v. Whitney, 3 Kerr lid. To an action on this bond, the defendants pleaded a gtucral performance ; the plaintiff's replied, assigning as a breach that K. while secretary embezzled and unlawfully made away with large sums of money of the plaintiffs, and that proof was made thereof, and notice given to W. : tlie defendants rejoined that no due proof of the embezzling, etc. was made, and no due notice given to W. llrld, bad, as a departure from the plea : and that the want of proof and notice were matters for seperate pleas. Ibid. A further breach assigned was, that K. while secretary, made false enteries and fraudulent charges in the plaintiffs' Ijooks, whereby they sustained loss. Held, That this was Dot a breach of duty within the terms of the bond, unless ID consequence the plaintiffs' moneys were wasted etc., ^liich should have been alleged. Ibid. m iliiili t)64 PLEADING. WM Hi To an action on a surety bond, conditionej inter alia for the faithful performance of the principal as secretary to the plaintiiTs, and the making of satisfaction for any losses, efc, within three months after due proof thereof and notice — the surety in his fourth plea avem-il l)orfoimance up to a certain period, and as an excuse for tlie subsequent non-performance alleged a dealing by th'; plaintiffs in gold and silver coins contrary to law, wiiicli increased the risk, whereby the surety was discharged ; aiul in his fifth plea alleged that no due proof was made thin' months before the action ; and the plaintiffs in their repli- cation to the fourth plea traversed the dealing in gold ami silver, and then assigned several breaches on divers days between periods which embraced not only that time in the pleas covered by the performance, but also that during which the breach was admitted ; and in the replication to the fifth plea took issue thereon in the words of the plea. On demurrer to each of these replications and joinders therein, with objections to the adverse pleading in refer- ence to form — Held, That the replication to the fourth plmi should not have assigned, but suggested breaches, and confined them to the period for which the surety had pleaded performance, and should have concluded the traverse of the surety's excuse of non-performance with an issue to the country, and that consequently this replication was ill. Helil also, that the replication to the fifth plea, taking issue thereon in the words of the plea, was sutficient, Held also, that where one party demurs to any pleading, the only objection which the other party can make to the former pleadings are those which go to the substance, not the form of such pleadings. Mcch((nics' ]Vh(de FisJmi Compami v. Wldfney, 3 Kerr 812. 17— Contract— Variance — Condition precedent. Where part of the contract stated in the declaration was in consideiation that the plaintiff would sell and deliver to the defendant, certain supplies which he might from time to time require to enable him to get logs, and tins was succeeded by an averment that the plaintiff sold and wy '" ':: PLEADING. 965 delivered to the defendant such supplies as he from time to time required, and demanded of the plaintiff, and it appeared in evidence that the agreement was for supplying only particular articles, which were specified, and that on application by the defendant to the plaintiff for some of the articles, he was unable to furnish them. On motion for a non-suit on the ground of variance, Held, That there was a clear variance between the agreement alleged and ilie one proved. Held also. That under the agreement it was a condition precedent that the plaintiff' should supply to the defendant the articles agreed for, and the defendant having made default in so doing was not entitled to recover. Ikiide V. Ashe, W Kerr 327. I§— .4sMiiiip$>it l»y ii4liiiiiii««li'iito)'— Pi'oiiii*<><^««. In a summary action of assumpsit by an administra- tor for the work and labour of the intestate, the promise was laid to the plaintiff as administrator only, but no proof thereof given at the trial ; on the point reserved for a non- suit, verdict for the plaintiff, and rule insi. Held. That the promise was material and in issue, and not having been proved, a non-suit should be entered. StepJienson v. Perley a Kerr 308. 19-Proiiii«!iC'*>i by te»«tator— Foreign jiii»i4'oiiliiiiiiii|K ^iiiit. A plea to an action on a jail bond, that before the re- turn and filing of the writ and entry of the cause, if anv such filing and entry was made, the plaintiff discontinued his suit, is bad : Ist. Because the discontinuance should have been alleged as the judgment of the Court, ami the manner of making it stated ; and '2nd. Because the liliiii,' of the writ being stated hypothetlcally, did not confiss and avoid the effect of it. Bdcon v. Johns, 1 All. 257. '21— A^^i-coiiK'iit— Bi'(>aicli— Seroiid iiK^i'<'«>iii<>iit-A««K(>iil. The defendant made an agreement to deliver plaintilfs at S. a cargo of deals for a vessel, which he failed in per- forming ; he afterwards agreed to pay the plaintilfs I'OOfor the loss sustained in not having the cargo of deals ready for the vessel at S. The second agreement was not si2;ned by the plaintiffs, but was in their possession. Held, That the plaintiii"'s possession of the agreement was prima Uvie evi- dence of their assent to it, and that upon a count setting out the first agreement and the breach thereof by the defend- ant, and the agreement to pay i."00 sterling in satisfaction of the damage occasioned by such breach, the plaintift's were entitled to recover the .t'GO. Jloldiriioi^iy. McGliic, I All 429. 2'i— Tre!!»|»u<>»s— Lic<»nse. In trespass for breaking the plaintiffs close, subvertiu;,' the soil, covering the surface with dirt, etc., and digging and carrying away coal ; the defendant pleaded. Ist Not guilty: 2nd. That the Queen being seized in fee of all mines of gold, silver, copper, lead and coals, in the close, with the iqipurtenances, granted a license to defendant to make use of, and dispose of the produce of all the said mines which he might discover and commence the working of : under which acts he justified the acts complained of, as necessary to getting the coal — doing no more damage to the close than was absolutely necessary to the effectual PLEADING. OCT 1. Ilahl also, ;0 plead lie had iff'tt(\enmncl,to 3 Kerr Oiio. t before tlio re- le cause, if any iff (Uscontinuod inuance should Court, and the Luse the liliiij; of lot conft'HS and a. 257. lU'iit- A*«HeiU. deliver \)laintitl'» lie failed in per- plaintifts iCiO for 3f deals ready for as not signed by Held, That the i prima f^rie evi- count setting out f by the defond- g in satisfaction jch, the idaintift's [close, subvertiui; Itc, and digf^ing keaded. ist Not [ized in fee of all jals, in the close, to defendant to B of all the said fence tbe working Ijomplained of, as more damage to to the effectual wDiking of the mine. Iteplication, traversing the (^)ueen'fl si'isiu of the minus with the appurtenances, iinxlo d hniiui }[(hl, Ist. That by the term uppurUnuinvvn, could not be intended such a seisin as would enable tlio Crown to grant a license to the defendant to use the mine in the manner ])lead('(l.lmt only such rights as were necessarily incident to till' suisin of the mines ; but the <»)aeen being seized of the mines, the finding on this issue must be for the defendant. I'liit, "ind, That as the plea confessed the acts complained of, and contained no legal justification, the plaintiff was en- titled to judgment on the whole record, )inn olDifante , .licto. McMahon v. BcrUm, '1 All 8-21. '.*;{ \^*«iiiii|»<>tit— Au:i'('(>iii<>iit— l*4'i'foriiiaii4u> <'oii«lilioii |>r4>4*(Ml<'iit. D4;vi:itioii B. agreed in 188G, to survey at the landing and take iilivery of all the spruce and pine logs the plaintiff might cut and haul to the landings at Taxis river, and pay him a certain sum per thousand for all the merchantable logs as soon as he had driven them past the mouth of Clear- water brook, (a tributary of Taxis river). After some of the logs had been driven, B. made an examination of the nmainder then lying in the river, sawed some of them into deals, and made an estimate therefrom of the con- tents of the whole, taking the statements of the parties who cut them as to the quantity, without making any measurement. A partial settlement was made, upon which ilie plaintiff brought an action against B. on the agree- ment, and in 1838, while the suit was pending and while a luantity of the logs still remained undriven, the defendants agreed in consideration of the plaintiff's discontinuing the suit, " to pay him the balance that might be due him from B. on account of logs to be furnished by him to B. as per agreement and settlement, wlien the wdiole of the spruce and pine logs then remaining in Hovey brook and Taxis liver were driven down past the mouth of Clearwater l)rook." The plaintiff did not drive all the logs, but in a settlement between him and B. in 1843, in which the former estimate of the quantity of logs were taken. B. made H""' V if ill i mm 908 i'LKADlNCI. ;«iHin!l(| . , lit iiilif I a deduction from the plaintltY's account of about 2(1 ^f. k-vtui lo;j;8, a supposed (pumtity still lying in Taxis ri\ir, iiiul struck a balance; in favour of the plaintilV of I'Hly, iiiciud- ing t' 18 interest ; this balance was demanded from Hr. defendants. In an action on the second ugreomont the declaration averred (iiitfr (did) that on the Ist July, 188(1, the 8[)ruce and pine logs, which at the time of the af^ici. ment were remaining on Hovey brook and Taxis river, were driven down past the mouth of Clearwater brook, agreeably to the spirit and effect, true intent and meaning; of the agreement : and that afterward by an accoinit stated between the plaintilf and B. there was a balanee of i'315 due from li. to the plaintiff on account of the log!>, of which the defendants afterwards had notice. Held, 1st. That as the settlement referred to was a future oiu, the agreement between the plaintiff and B. should have been set out in the declaration, in order to shew that n settlement was subsequently made between them, and that it was such as to be binding on the defendants accordiug to their agreement with the plaintiff ; or if the defendants were liable without such settlement, to shew how tliev became liable. 2nd. That the driving the whole of the logs past Clearwater brook was a condition precedent to the plaintiff's right to recover, performance of which should have been proved, or a sufficient excuse shewn for the non-performance. 3rd. That the averment of driving the logs according to the spirit and effect, etc. of tin agreement, was an averment of performance. 4tli. That as the plaintiff' and B. had deviated from the mode agreed upon for ascertaining the quantity of logs, the defendant.^ would not be bound by the settlement unless they had notice of the deviation before they entered into the agree- ment, or subsequently assented to it. 5th. That admitting the quantity of logs to have been properly ascertained, thf defendants could not be liable for interest until default made in paying the principal ; and they were not liable for the principal because the correct balance was never de- manded. Sutherland v. Gilmour, 2 All. 481. Application of the maxim de minimis non cit rat lax. IM, PLEADING. 061) 'JI-AMNiiiii|><iit~Av4'i'ili<>iil .4 III «> II dill ('II I. In an action for not delivoring deals according to con- tract, the declaration stated that the defendant was in the possession or occupation of a saw-mill at W. and engaged in the manufa-lure of lumber at such mill, and had agreed to deliver the plaintiff a quantity of deals a>^ they came from the mill, and that if any accident happened to the riaid mill so that the deals could not be cut the contract was to be void ; averment that no accident happened to the said mill. The contract did not specify any particular mill, and the only mill in the defendant's possession was injured and prevented from sawing. Ilehl, That the aver- ment was material, and that the plaintiff could not shew that another mill, not in the defendant's possession, was the one intended by the contract. Holdcrness v. WelUnu, '1 All. 572. Held also. That if the declaration was amendable as to the description of the mill, the amendment could only be made at the trial. Ibid. *J3-Debtfoi' lo^ncy— IVo nllcy[ntioii of receipt or money* Declaration stated that A. bequeathed to the plaintiff oae-i'ourth of .i'200, which would be due from B. after A's death, according to an obligation held by A. at such time and to such persons as he should appoint by will for pay- ment thereof ; that A. by his will directed that B. should pay ^50 pound per annum for four years to A.'s executor, until the ^200 was paid ; that he appointed the defendant liis executor, and that more than four years had elapsed since the death of A. Held. Bad for not averring that the defendant had received the money from B. Brown v. IlaV' 'H 3 All. 249. Quarc, Whether, if the defendant had received the money, he would be liable in his representative character Ihid. ''iO-A$Mlllll>!^it— Warranty— Payment by note. In action for breach of warranty on the sale of goods, the declaration stated that payment was to be made by a note at three mouths from the plaintiff to one of the de- 62 '\WT ii 970 PLEADING. fendants, but the evidence did not shew whether the note given was drawn in favor of one or both defendants. Held 1st. That being left doubtful by the evidence, it might be presumed that the note was given in accordance with the agreement as stated in the declaration ; 2n(l. That if it had appeared that the note was to be given to both de- fendants, the declaration might have been amended. lAjmuK V. Cain, 3 All. 259. 47— Covt'iimit- Avci'iiiciit—K4>a«liiii>!ii<>.— Ability. In an action on an agreement whereby the plaintiff was to deliver the defendant, on or before the 1st December 1854, at such landing place at Saint John as the detendant might direct, 500 M. feet of deals, to be paid for on deliven , the declaration alleged that on the 30th November 18.j1. the plaintiff was ready and willing, and offered to (leli\ir the deals at such landing place at Saint John as the dt- fendant might direct ; but that the defendant refused to accept the deals or to appoint any landing place whtn they might be delivered, or to pay the plaintiff for them ;it the price agreed. Held, That under the averment of readi- ness and willingness, the plaintiff" was bound to prove his ability to deliver the deals, though the defendant had brnkHi the agreement by refusing to take any deals but such ii» were sawn at a particular mill, and by neglecting to a[t- pomt a place for the delivery. Taijlor v. Tnd^is, I) .1/ . 445. See Nos. ()7--68. >i8— Contract ii.n«1 prool— Vari»iic4>. Declaration stated that defendant sold plaintiff ')00 )l. feet of pine logs, to be delivered at such reasonable tiiui thereafter as the plaintiff' should require ; breach— that though a reasonable time had elapsed, the defendant had refused to deliver the logs to plaintiff' on request. The con- tract proved was for the sale of 500 M. feet of logs in the defendant's boom at Union Point, marked 13., to be selected and scaled by (1. when required by plaintiff", and to be de- livered in the spring following the date of the agreement. ]{eld, That there was a variance between the contract set out and the proof. Ciishing v. Goddard, 3 ^1//. 595. PLEADING, 971 •j9-Do«>ei'i|»tion of plaiiitifl— R(>i>ri'N<>iitati\'r 4-liiii'ii4-l4>r Plaintiffs, assignees of L., F. i)c Co., under a trust deed 01 assignment, sued on a contract made by the defendant with L., ¥. & Co., the declaration stated that " J. M. and A. F., assignees of the estate of L., F. & Co., complain,'' fctc. Hdd — (Parker, J., dusentiente) That the declaration did not set out a right of action accruing to the plaintiffs in their representative character, and that the words " asign- ees," etc., were mere surplusage. McMillan v. Chamber- ht'ui, i All. 137. 30 Plaintiffs not being clothed with any official character as trustees, should not declare in that capacity^ but allege i' as matter of description. Burnham\. Watt>i, i Km- 877. ;tl-§pccial counts— Pi'oof. Holder of bill of exchange, relying on no funds in hands of drawee as an excuse for not presenting bill, and giving notice, such fact should be stated in the declaration ; aver- ments must be proved to entitle plaintiff to recover on special counts. See Bills and Notes VI. 12. 3*2-Obligor»— Bond to A. or B. or cither. A bond conditioned for the payment of money to A. and B., or either of them, cannot be sued in the name of one of one of the obligees, unless the other is dead. Hazen w lirmmond, 4 All. 267. •<:< -Policy of iii*i:nt— Want ot averment. The following clause in a marine policy of assurance, viz.: "and in case of loss, such loss to be paid in sixty days after proci of loss and adjustment, and proof of inter- est in the said assured," has the operation of a condition precedent ; ant. the judgment was arrested in an action by the assured against the insurer for the want of any averment ill the declaration, that such preliminary proof had been furnished to or dispensed with by the defendant. IFatsnn V. Summert, 2 Kerr 101. I 972 PLEADING. 34— Corresponding; proof— Dcjiicription. Where in replevin the place of taking is described not l)y name but by abuttals — Held, That it is not necessavv on the plea of non cepit that the place should be proved to be in one occupation, and that the calling it a " dose,' where different parts of the land within the abuttals are held by several parties, is not material, the defendants not having been mislead by the generality of the description. Mills V. IMvitt, 1 Kerr 486. 33— .4«liiiiiiistratioii boai«1 -TVce4>s«ary Statoincnt. In an action on an administration bond under the Act 3 Vic. cap. 61, assigning as a breach a devastavit by the administrator, it must be stated that the estate of tlu' intestate has sustained injury thereby to a certain amount. Sherlock v. McGee, 1 All. 346. An allegation in the assignment of a breach that goods and chattels came to the hands of the defendant as admin- istrator, necessarily shews that they were the goods of the intestate. Ihid. 3<(— Iiiforior Court— Claim arising 'witliin .jurisdiction —Proceedings. In declaring in the inferior Court of Common Pleas, it is not necessary to allege that the demand arose within the jurisdiction of the Court. Stephenson v. McLelland, 1 All. 19. In an action on a judgment obtained in the Court of Common Pleas, it is sufficient to state the recovery of the judgment, without setting forth the prior proceedings. Ihid. 37— Policy-Insurance— Con<1itiou!Si— Averments. In a fire policy, the insurers by an endorsement thereon, consented that the loss should be payable to the order of W. Held, Sufficient in a declaration in covenant on the policy to allege that the loss was not paid to the plaintiff nor to W. ; and that as such indorsement gave W. no legal interest in the property, it did not preclude the assured from maintaining an action in his own name ; nor was it necessary to aver any order from W. in favor of the assured. Ketchum v. The Protection Insuranee Co., 1 All. 186. raBSBHBHMM PLEADING. 973 II jiiriiiidictioii By the tenth condition attached to the policy, it was stipulated " that in the event of a loss the assured should deliver to the insurers a particular account in writing, signed with his own hand, and verified by his oath, and that he should also declare on his oath whether any or what other insurance had been made on the property insured, and in what general manner (as to trade, manu- factory, merchandise, or otherwise) the building containing the property insured, and the several parts thereof, were occupied at the time of the loss, who were the occupants of such buildings, and when and how the fire originated, as far as he knew or believed, and that the assured should procure a certificate under the hand and seal of a inagis trate or notary public (most contiguous to the place of the tire, and not concerned in the loss as a creditor, or otherwise related to the assured), that he had made due enquiry into the cause and origin of the fire, and also of the property destroyed, and was acquainted with the character and circumstances of the assured, and did verily believe that assured really and by misfortune, and without fraud or evil practice, sustained by such fire loss or damage to the amount specified." The declaration stated the fire '' ^ have happened on the 29th July 1845, and that the compliance with this condition, in respect of notice of the fire, took place on the same day; as to the delivery of a particular account in writing, on the 20th August 1845 ; and in I'Lspect to the declaration on oath, the 27th March 1846. Held, Sufficient, the respective times having been laid under a videlicet ; the performance of these acts, whether in due season or not, being matter of evidence. Held, also, That as W. had no legal interest, it was not necessary to state tl.at he was not related to the notary. Ibid. By the fifteenth condition annexed to the policy, it was declared " that no suit or action of any claim under the policy, should be sustained in any Court of law or Chancery, unless such suit should be commenced within the term of twelve months next after the cause of action accrued," etc. ^kld, That this was a condition subsequent — the subject o{ a plea. Ildd also. That an allegation in a count upon a •, fp 974 PLEADING. policy containing this condition, that the insurers had no mayor, president, etc., upon whom process could be served (introduced to anticipate a probable objection that the action was not brought within the twelve months,) was mere surplusage. Ketckum v. The Protection Insiirauce Co., 1 All. 136. The preliminary proof required by the tenth condition may be waived, and being a question of fact, the mode of waiver need not be tested. The fifteenth condition being the subject of a plea, an averment in the declaration that the insurers had waived it, would not be traversable; therefore it might be passed by without notice. Hdd also. That it could not be v/aived — the lapse of time extinguished the liability of the insurers, which could not be revived by waiver ; but Scmble, That they might dis- pense with the condition by deed, and if a deed could avail as a dispensation it should be replied to a plea of the condition. Hehl also, That the fifteenth condition was valid in law, and operated as an effectual bar everywhere ; therefore a plea of the fifteenth condition to a count con- taining an averment of waiver of this condition is pro- perly pleaded. A replication to such a plea, that the defendants were a foreign corporation, and that no action could have been sustained within the twelve months, unless they had voluntarily appeared, and there was no means of compelling their appearance, although the plain- tiff was willing to prosecute within the twelve months, is bad, as it neither confesses nor avoids anything material, for the plaintiff might have sued out process within the twelve months, or the defendants might have been sued in the country where they are incorporated, and they are not estopped by voluntarily appearing, from setting up the lapse of time as a defence. Ibid. A plea, embodying the tenth condition, which stated that; after the fire, to wit, on the 2Gth August, 1845, the plaintiff was required by the defendants to deliver an account in writing under his hand, verified by his oath and by his books of accounts, etc., and permit extracts, PLEADING. 976 €tc., to be taken respecting the loss, etc., and the plaintiff refused, is not double, as they all go to establish one point —the non-performance by the plaintiff of that part of the tenth condition. Kctchum v. The Protection Insurance Co.^ 1 .1//. 136. A traverse in a plea that the plaintiff was not interested in the goods insured to the whole amount of their valne, is too large ; for if he was interested in any part, he is entitled to recover pro tanfo. Ibid. To a declaration, which averred performance by the plaintiff of all the acts required by the tenth condition to be performed by him, a plea traversing the performance of all these acts, is good, according to the rules of pleading at common law. Ibid. A plea which first traverses an allegation in the declaration of the delivering an account of loss according to the tenth condition, and secondly, sets up fraud, is unob- jectionable. The refusal to deliver an account in such case is indicatory of fraud, and is consistent with the general charge of fraud subsequently made. Ibid. A plea alleging false swearing in a statement, A. annexed to the declaration of loss made by the plaintiff, is bad, for not averring that any such statement was annexed, and for not shewing when and before whom the oath was made, or in what particular the statement was false. 3N— Claim lor totnl los<^— Ri||;lit to recover lor pitriial lo^s— Deviation — Right lo recover where io«s payable to piaiiitilT. See Insurance 41. 39 The assignee of a policy of insurance and of tbe property insured, does not by such assignment, acquire any right of action against the insurer of the original contract, though the assignment is made with his consent, and in accordance with one of the conditions of the policy ; but a new promise by the insurer, supported by a valid consideiation, to give the assignee the benefit of the insur- ance, will support an action. The declaration in an action B I "TT^ h I- 976 PLEADING. by the assignee of a policy of insurance made by the defendant with A., after setting out the policy, the pay- ment of the premium by A., and his assignment to tiie plaintiff -with the defendant's consent according to one of the condiiions of the policy, whereby the defendant was released from liability to A., stated, that in consideration that the plaintiff, at the request of the defendant, had undertaken and promised the defendant to perform all things in the policy contained on the plaintift''s part to be performed in pursuance of the consent to assign, and in consideration of the assignment of the property from A. \> the plaintiff, and the release thereby of all liability of ■,xjc defendant to A., and of the assignment of the policy with the defendant's consent, and in consideration of the paym' • *■■ of the premium so received as aforesaid, the defender t piomised the plaintiff' to be the insurer to him, etc. Held, That there was not a sufficient consideration shewn to support the defendant's promise. iJcmill v. The Jiartford Insunince Company, 4 All. 841. The receipt of a renewal premium on the poHcy by the insurer from the assignee, is a sufficient consideration for a new promise by the insurer to the assignee. Ibid. One of the conditions of a policy declared that if the insured should thereafter make any other insurance on the property, and should not, with all reasonable diligence, give notice thereof to the insurer, and have the same en- dorsed on the policy or otherwise acknowledged in writing, the policy should cease and be of no further effect; and if any subsequent insurance should be made, which with the sum already insured, should in the opinion of the insurer amount to an over-insurance, he should have the right of cancelling the policy by paying to the insured the unexpired premium pro rata. In an action on a policy where there was a subsequent insurance, the declaration averred that notice thereof was forthwith given to the in- surer (the defendant), and it thereby became his duty to indorse such subsequent insurance on the policy, or to ac- knowledge the same in writing, but that he neglected and PLEADING. 977 ired that if the asurance on the tiable diligence, e the same en- ged in writing, further eti'ect; le made, which 3 opinion of the hould have the the insured the on on a policy the declaration iven to the in- me his duty to olicy, or to ac- neglected aud refused so to do. Held, on demurrer, That the declara- tion was sufficient, and that a tender of the policy to the insurer for indorsement, or a request to him to indorse or acknowledge it in writing, was not necessary. Demill v. The Hartford Insurance Company, 4 All. 341. Qua) e, Whether the defendant could be charged with a breach of duty in not indorsing the subsequent insurance, unless the policy was tendered to him for that purpose ; but Held, That the averment that it was the defendant's duty to indorse it, might be treated as surplusage. Ibid. 40-CoiisidPi'ntioii iiioviiig from plnintifT. A declaration in assumpsit upon an agreement or note, whereby the defendant " in consideration of value received from the estate of J. & H. K. promise to pay the plaintiffs , trustees of the said estate, i'936 in cash or sole leather on or before 1st May, 1843," is not bad on general demurrer, on the ground that the consideration did not move from the plaintiff, or that no demand of payment was averred specially. Bnrnhamy. Watts, 'i Kerr 377. 11— Averment of coiisideralioii— Proof. In an action on a written memorandum, whereby " A. for value received promises to pay B. $759 in current bank bills," it is not sufhcient to allege the consideration in the general terms of the memorandum, but the plaintiff must state in what the value consisted as the coDsideration for the promise. Whitney v. Marks, 1 Kerr 187. 42 It is necessary also not only to allege the ac- tual consideration, but the proof must correspond with the allegation. In this case the plaintiff alleged that the con- sideration consisted of certain standing trees, goods, wares, and merchandise, and stutnpage ; the evidence shewed the consideration to consist of stumpage alone. A verdict having been taken for the plaintiff, subject to a motion for a non-suit, the Court allowed the plaintiff to amend on payment of all costs, and made the rule absolute for a new trial instead of a non-suit, on the condition of the payment of such costs. Whitney v. MarKs, I Kerr 17d. " 'irnv, 978 PLEADING. 43— Debt oil bond— Award— Breach. In an action on a bond conditioned for the peil'ormauco of an award, the particular breach relied on must be stated in the decliration : it is not sufficient to state generally that the defendant refused to comply with the award, and would not perform the acts on his part to be performed ac- cording to the directions of the award. Burijoijac v. Ihir- Itot/ne C, M>i. 120. 14— Aswiiinpsit on note— Partnership. In an action by the payees against the maker of a pio* missorynote payable to A., B., C. and D., the declaration alleged that the defendant promis3d to pay the plaintiffs, by the name, style and firm of A., B., C. and D. Held, That it was not necessary to prove that the plaintiffs were partners, and that the words " name, style and firm" might have been struck out of the declaration. Allen v. McNau^iU- ton, 4 AIL 234. 45 Averment of rate of exchange and place. .Siv Bills and Notes I, 4. 40— CoiiMideratioii— Averment— Aider by verdict. The declaration stated, that whereas the plaintiff had the custody of certain timber of the defendant, and the de- fendant had bargained with one J. M, to sell and deliver to him a certain quantity of timber, and thereupon in consid- eration that the plaintiff at the request of defendant would agree to deliver to J. M. 573 tons of timber, averaging in size 13f inches, the defendant promised the plaintiff tha' his timber in the plaintiff's custody should be of sufficient size to enable the plaintiff thereof to deliver J. M. the said 573 tons of the average size aforesaid ; but if the timber should prove of insufficient size, he (the defendant) would pay the plaintiff such loss as he might sustain by reason of the timber being of insufficient size, to enable the plaintiff thereof to comply with his agreement with J. M. The de- claration then proceeded to aver that although the plaintiff did on, etc., at etc., agree to deliver J. M. 573 tons of timber of the average size of 13f inches, and although the defend- ant's timber in the plaintiflf' s custody did not average 13t PLEADING. 97'.> inches, but only 13r} inches, and the plaintiff had by reason thereof sustained great loss, aud was forced and obliged to pay J. M. a large sum, viz : the difference in value between timber of 13^| and timber of 13| inches average ; yet the de- fendant, although requested, had not paid the plaintiff the amount of the loss, etc. Held, on motion in arrest of judg- ment, That there was a sufficient consideration alleged, and that it was not necessary for the plaintiff to aver that he had performed the contract made by defendant with J. M. by delivering timber of the average size specified, the agree- ineut by jjlaintiff to deliver and not the delivery itself form- ing the consideration for the defendant's promise to indem- nify. Ciniiiard v. Pluinmer, 2 Kerr 418. //( Id also. That after verdict neither the mode of alleg- ing the consideration, nor the want of averment of notice to the defendant of J. M.'s demand on the plaintiff, could be objected to. Ibid. 47 Insurance policy — Meaning of words by usage of trade. Held, that such usage and construction should Iw averred in the declaration. See Insurance 21. I«*-Llb«l— Preljitory avci'iiieiit!^— When iicce.skiitry. | In a declaration for a libel, prefatory averments are not necessary, where the charge is apparent on the face of the paper without reference to extrinsic facts. The question after verdict is whether enough appears on the record to sustain the action. Connick v. Wilson, 2 Kerr 617. 49-Assigiicc of term. A party signing as assignee of a term on a covenant contained in the lease and alleging and making profert of an assignment by deed is bound to prove it, and if several assignments are alleged, a traverse that the plaintiff became ^titled modo et forma, puts the whole of them in issue. Mey V.Peters, 1 All. 339. JO-ra$e-::Viii«iiiice — Erectiiii? steam mill — Siirplus- age. In an action on the case for a nuisance for erecting a mill on land adjacent to plaintiff's dwelling house, tiie evidence of persons living in other adjoining premises 1 it '" .'1 I ml t <<< - KxpiilNioii. Expulsion froir part of the close is suilicient to sustain the count for expulsion, (icsner v. Cairns, 2 ^1//. 595. ,Vt— E\<'<'Nhiv4> «liNti'eMK— ni4U^«'MMai'y iill«>K>itioii. The declaration in an action for excessive distress, alleged that the plaintiff hold land as tenant to defendant lit a certain rent ; that the defendant wrongfully seized goods on the promises as a distress lor arrears of rent alleged to be due, viz : $311, and sold the same for the said alleged arrears, wL'.veas a small part only of the said alleged rent, viz : $70, was in arrear. There was no alle" gatinn that more goods were taken or sold than were necessary to produce the rent actually due. Held, That the declaration disclosed no cause of action ; that some rent being due, the distress itself was not a wrong, and that the mere distraining and selling on a claim of more than was due, was not actionable. Preston v. Simonds, 1 //((». 44. J4-.l[aiTiait— Allcg:atioii. A declaration alleging that the plaintiff was a married woman, living separate and apart from her husband, and compelled to support herself, and that the defendant con- tracted with her while she was such married woman and compelled to support herself, sufficiently shows the plain- tift's right to sue in her own name under the Act. Abel v. Lhjk, 1 Han. 97. •^S-Special asMiinpsit — C'oii$iiidoratioii for pronii<4c— AlloKntiou— Aiiibiy^iiity. The first count of a declaration stated that on t'-e let November 1865, in consideration ot the assignment of license No. 84, made to defendant by plaintiff, at de- fendant's request, defendant undertook and promised tliat F. should deliver to plaintiff whatever quantity, say, not to exceed 105,000 feet of logs by the 10th •Wythen next. Averment, that although the time for the Mvery of the logs had elapsed, and the plaintiff was fcady and willing to receive them, yet F. did not deliver tliem, whereby, etc. The fourth count stated that on the •will ji T- n ' ' I 'I Iflll iililif pi !f 982 PLEADING, (lay and year aforebaid, in consideration of the a8Hij,'iinunt by the plaintiff to the defendant of a certain liceiis( . tlun and there agreed upon between them, defendant uudirtook and promised that F. should deliver plaintiff, wliattvci quantity of logs said F. had before the" agreed to dclivfr plaintiff' in the year 18(56, not to exce 35,0(10 feot. In the 10th July then next. Averment, that F. had iigreod tn deliver plaintiff 13o,C00 feet in 18()t). Breach that V. did not dehver the logs, Held, Ist. That a HulliciLnt consi- deration for defendant's promise, was alleged, but tliat the promise, as stated in tlie hrst count, wa;- uncertain and unintelligible ; 2nd. That the words, "on the day and year aforesaid," in the fourth count, did not necessarily refer to the 10th July 1860 (tlu last day mentioned in the preceding count,), but might refer to the 1st November 1865 ; and being only an am- biguity, the objection could not be taken on general d murrer. Dclhimy v. McLeod, I Han. ^, •16— tJaf^c— R«>f'iiMiiiK to I'cgiMtci* iiiiu, icdiral A«i. By the Act 22 Vic. cap. 18, sec. 11, every person in the Province possessed of a medical degree or diploma to practice medicine or surgery, from any college in (ircat Britain, Ireland, Canada, France, or the United States, authorized to grant the same, shall on payment, etc., ht entitled to be registered under the Act, and by sec. 12, no qualification shall be entered on the register, unless the liegistrar is satisfied by the [)roper evidence, that thi person is entitled to it. Held, in an action against the Registrar for refusing to register the plaintiff", 1st. That the defendant was not liable unless he acted maliciously : and that an averment in the declaration that he irronufidhj and injwnonsly refused to register the plaintiff, was insuffi- cient. 2nd. That the mere production of a diploma to the Registrar, was not sufficient evidence of the authority of the college to grant it : the declaration should liave averred that proper evidence of the plaintiff's title to registry was tendered to the defendant. Peterson v. Handing, 4 .4^/, 583. PLEADING. 98;] ,n-li>tit.v ill iiaiiio— Proof. The plaintilV doscribed himself in tlic declination "J. Keri'iken, othevwiae called J. Carvigan," and in support of the action produced an acknowledgment signed I»v the defendant, of a balance due from him to .1. Kerriken. Hi Id, That it was necessary for the plaintiff to identify himself witli the paity mentioned in the acknowledgment, ;iiul without proof that the J. Kerriken there mentioned was also called J. Ci^i *gan, the action could not be main- taiued. Ki'irikcii v. Capdnud, 8 K'lr oG7. lM-JiidKiii«>iit— \aiH<>— Aiei'iiKMil. In an action on a judgment signed against J. H. W. by the name of J. W. W., it is sufficient to aver that the defendant and J. W. AV. are the same person. I'oini;/ v. Wiindcocl:, 3 Kerr 554. •19 -Dctniiiatioii. In an action of defamation for calling a woman a whore, it is sufficient to aver in the declaration that the defendant intended to impute unchastity. Miu'tindale and Wife V. Miirphif and, Wife, Ber. 85. 60-As$)iiiiipMit— Attorney— NcKliiffciict'. Declaration stated that in consideration that the plain- tit^' at the request of the defendant had retained him as an attorney for certain fees, to prosecute an action at the suit of the plaintift' against C. for money owing to him from C, the defendant promised the plaintiff to prosecute the action in a skilful and diligent manner, and accepted the retainer, and afterwards as the plaintiff's attorney, com- menced an action against C. at the suit of the plaintiff for t lie locovery of the money, and it thereby became the duty of the defendant faithfully and diligently to act as the attorney for the plaintiff ; yet the defendant not regarding his duty etc. did not faithfully prosecute the action, but on the contrary prosecuted the same to trial in so unskilful and negligent a manner that the plaintiff" was non-suited^ aud was not only prevented from recovering the money from C, but was obliged to pay tl7 for the costs ol the 984 PLEADING. costs of the suit, etc. Hdil, That this was a declaration in immmpslt and not in case, and that it disclosed a sufficient cause of action. Carrigan v. Andrews, 1 All. 485. 4*1 -Award— Action on— Couciirvciit Acts. An award directed that th.? defendant should pay the plaintiff a sum of money on a certain day, and that on such payment heing made the defendant should be entitled to receive, and the plaintiff should deliver him two parcels of sleepers then lying at L. Held, That they were not concurrent acts, and in an action on the award for the money, it was not necessary for the plaintift' to aver a readiness to deliver the sleepers. Haskell v. ]\iUon, 1 All. 618. 63— IVci;lig:cncc in repairing: street— Alle{j:atioie. The Corporation of St. John heing hound by law to lav out, alter and repair the streets in the city ; it is sufficient in an action against them for negligence in repairing a street, to allege that it was the duty of the defendants in 80 repairing etc., to use due and proper care etc.— without stating any facts to shew their liability — their authority to repair etc. being matter of public law, of which the Coint was bound to take notice. Henderson v. The Mayor etc. i>j >>t. John, 1 Pug. 197. 4i3— Alleviation of special iivn, 4 All. 284. 06 — PleaUiiiK— D<'<^lm'iitioii~€oiiiiiioii l>n>:icli. The declaration contained a special count setting out an agreement made by the defendant to pay the plaintiii" I'l^ 1.5s., which was due by A. to the plaintiff' on the 1st May then next, in consideration of his giving time to A. until tin said 1st May ; or that A. should then deliver to the plain- tiff" a yoke of oxen and a colt in good working condition; and averring that A. did not pay or deliver, etc., of wbicli the defendant had notice ; to this were subjoined the com- mon counts : Held That the usual breach at the conclu- sion of the declaration sufficiently alleged the non-paynitut by the defendant of the sum mentioned in the special counts. Marks v. Scott, 2 Kerr 379. ftY—tJoveiisiiil— Proviso— Mecemmity of M'ttiiig out in<><" claratioii. Where the promise or covenant contains an exception or proviso qualifying the defendant's liability, the declara- tion must state the exception or proviso, and it svilH" wrong to state the contract as an absolute one ; but if tli- covenant or clause in an agreement is absolute in itsell without any exception or proviso or any reference to any PLEADING. 987 came of no valut,' ige to the amount ;ion and sell tlio not having prior- lat the defendant was not recorded, could not be sold s recorded. Vei- at as the declara- leutation was tlif 1 the contract, but ment of the jiulg- 3 plaintiff), and as the consideration value of the jiulg- 1 not be sustained. II. 284. I bl>4>SICll. lunt setting out an the plaintiff i:!'^ 'i on the 1st May imeto A. until tlu' liver to the plain- ■orking condition; ver, etc., of wliid' iub joined the com- ach at the conclu- the non-payuitut \ in the specia' ains an exception oility, the declara- 30, and it ^villli' Iteone; butiftlK- [absolute in itseli reference to any ,v it may be declared on as an absolute contract,although,in a direct part of the duel or Instrament, there is a proviso defecting or qualifying it under certain circumstances. Such a proviso being in the nature of a defeasance and to be setup on the other side. IlalJ v. Allen, 2 Piuj. 192. Oi-Coiiditioii |»rec<;il«>iit— Avei-mciit of pciToi-iiiaiirc necessary - Payment of money — Contra rt lor biiildin;; lioiisc. By iiu agreement dated July 24 187o, the defendant agreed to build a house for the plaintiff and furnish it by April 1st 1876, and the plaintiff agreed to pay the defendant S400 on the 15th August then next, and to make other pay- ments as the work progressed. No payment after the $400 to exceed the amount of work done. In an action against the defendant for breach of the agreement in not finishing the house by April 1st 1876, it was held that the payment of the $400 was a condition precedent to the plaintiffs right to recover, and that the declaration was bad because there was no averment in it of the payment of that sum. driscollY. Barkor, 2 l\ .C- B. 407. ♦»9-SpecifyinB; property injured— Tort. In an action for injury to personal property contained in a building, it was held not necessary to specify the pro- perty injured, and that the words " the property therein" were sutHcient. Bviiwhig v. Bcrrymaii,'! Pk;/. 515. nortsjra^oi' in pfiMNCssion— Description. A mortgagor in possession of property is properly des- cribed as being " seised and possessed" thereof. Ibid. TO-Biiil Ueciarntion diMciosin^ no raiise ol action. The declarotion alleged the issue of a rapian out of a •fustice's Court against A. at the suit of ]\[. ; that the plain- tift became bail for A. ; this judgment was recovered and execution issued and delivered to defendant a constable ; that A. had sufficient goods and chattels which were pointed «ut to the defendant, and out of which he could have "'vied the execution ; but that he refused to levy on the goods and falsely returned on the execution that he could not find any goods or chattels or the body of A., whereby tlie plaintiff as bail was compelled to pay the debt. Held 988 PLEADING. per Carter, C. J., N. Parker and Wilmofc, J. J., (Parker J. diss.,) that the declaration disclosed no cause of action ; the undertaking of the bail being that they should be answerable for the debt, or that A. the defendant should be rendered into custody unless he pointed out property to satisfy the execution, and the declaration did not shew that the bail had done all that their undertaking required Toivers v. Stephenson, 5 All. 93. 71— Necessity of setting^ out ju<1giiient appealed liom- Order ot privy council. A declaration alleged that at a Court held at Winsor Cas- tle before the Queen and her Privy Council, a report was read from the Judicial Committee. The report was then set out, the substance of which was that the Queen had referred to the Judicial Committee the matter of an appeal from the Supreme Court of New Brunswick between plaintiffs.assess- ors of rates for S., and defendants ; that a petition by plaintiffs was presented, setting forth the issuing of a war- rant of assesment to them by the Sessions commanding them to assess the sum of $958 upon the town of S. ; that they had assessed defendants among others ; that a certm- ari was obtained by defendants to remove the said assess- ment into the Supreme Court, and that, on the 23rd Feb- ruary, 1873,the assessment was quashed ; that plaintiffs ap- plied for leave to appeal to her Majesty from the order of | the Court ; that such leave was granted, and the proceed- ings transmitted to Her Majesty with a petition of appeal praying for reversal of the judgment ; that the Judicial I Committee, in obedience to Her Majesty's order, had takeo the matter into consideration and heard counsel, and had j reported to Her Majenty, as their opinion, that the judg- ment ought to be reversed with costs, and in case Her Ma.J jesty should approve of their report and reverse said judg-J ment, that the respondents (defendants) should pay to tliej appellants (plaintiffs) the sum of A*278 19s. 6d. stg., fortliej cost of the appeal. It further alleged, that thereupon Her^ Majesty took said report into consideration and was pleasel by and witli the advice of her Privy Council, to appiov^ PLEADING. 989 appealed tiom- tbereof, and to order, and it was thereby ordered, that said judgment be reversed with costs, and that said judgment was in full force and unsatisfied. On demurrer, Held, per WeldoD, Fisher and Wetmore J. J., That the declaration was sufficient, that plaintiffs were entitled to judgment ; but, per Allen, G. J., and Duffs, J., That it was insufficient because it did not allege the existence of a judgment in the Supreme Cv>urt which had been appealed from and re- versed. SeCx^^d count alleged, "That at a Court held before the Queen and Her Privy Council at Westminster, being a Court of Great Britain duly holden and having jurisdiction in that behalf, in a suit therein pending between the now plaintiffs and the now defendants, the now plaintiffs recov- ered against the now defendants by the judgment of the tbe said Court, the sum of £279 19s. 6d. On demurrer, Held, per Allen, C. J, and Weldon and Duffs, J. J., (Fisher and Wetmore, J. J., dissenting). That this count was bad, as there was no court of original juris- diction before the Queen and Her Privy Council, such as was described in it, and if the judgment were intended to be that of an appellate tribunal, it should have been shewn that it was given on appeal from an inferior Court. Dow (tal V. Black et al, 3 Piig. 432. TS-Promissory note— Necessary Avernieiits— Equivo- cal words— Construction apfainst party pleadinn. In an action against the endorser of a promissory note, the declaration, which after stating presentment, contained the averment that the maker did not pay ; but neglected and refused so to do, of which defendant had notice, was kid bad on general demurrer. Notice of presentment as Tell as non-payment should be alleged, an averment that the note was duly presented for payment and was dishon- I onred, whereof the defendant had notice, would be suflfi- j dent under the shortened form given in the Common Law I Procedure Act. I In pleading, if the words are equivocal, and two mean. ^ present tbemselves, that construction shall be adopted iWO PLEADING. which is most unfavourahlo to the party pkiuliu of Nova Scoti<( v. Estahroohs, 3 Pai!irillS boiiil. In an action brought on bond given by sheriff iiudor Rev. Stat. cup. 181, (Consol. Stat, cap, 25) it is not neces- sary that it should appear on the face of the judgment obtained against the sheriff that the action was In-ouglit for a breach of the duties of his office ; and it is sufficient if such breach of duty is set out in the action on the bond and proved. Miller v. Wchhm, 2 riKj. 227. 71— R<'|>aii'iii^ piihlir ^«ti'<>ots— Diitj' ot ^'orpomtioii- .41- h'^atioii of sli'oet liciiij; iiiidev roiitiol of C'oi'iiora- tioii- lV«?r«'ssity of— E%'id«'H<*e. In an action on the case brought by the administratrix of G., against the Corporation of St. John, the declaration alleged that defendants had the care, control nnd man- agement of the public streets, which it was their duty to keep in a safe and i)roper condition, and that a certain public street in said City ran over ground covered at time^ with water, and at low tides the roadway is high above tlk bed of the water below ; and it was defendants' duty to have placed a guard or fence along the side of said street to prevent persons passing alons from accidentally step- ping over the side and falling- on the rocks below ; but that defendants, not regarding their duty, negligently, illegally and improperly left said street without any proper fence or guard, and plaintiff, while lawfully walking in the night time along said street, without any fault of his own fell from said street upon the earth and rocks below and was killed. On demurrer it was objected that, as there were in St. John some public streets over which the Corporation had ao control, because they were not established and PLEAinNG. 901 1 liy slioriff mdor 5) it is not nects- I of the juclgraGnt 3tion was brought and it is suftlciiut ,ction on the boud 27. the administratrix m, the decbxration control and man- was their duty to Lnd that a certain id covered at time;^ y is high above the efendants' duty to side of said street accidentally step- Us below ; but that egligently, illegally any proper I'euct alking in the night ult of his own fell cks below and was .at, as there were. ich the Corporation ot established and adopted as provided by the Charter, the declaration was bad in not alleging that this was an adopted street ;• but, Jklil, That the declaration was sufficient, and that it would lie a matter of evidence to show that this street was a public street under the control of the (Jorporation. Gordon K.yiujor, tOc, SL John. 3 jnif/ 220. ilii<«f(>i' stii«l Soi'vaiit— .^c^^liK^'iicc of IVlHKtnr A%iif. Not necessary to charge expressly that defendants had kiiowiodge of defective materials or incompetently of las kiniiin. Sec Negligence 8 McDonald v. MrFrr. «|H'ciiil (lsiiiisiK<>— .'N'lM'CM'^ity of iillegiii;; iiiiiir.v from Inivo fsiliiiiw: oil li4»iiKe. StY Evidence 111. 28 Mnllis v. Rose. ^ Am-fMor uiiil ii(>ii'— Cov4^iiitiil. A|»|»oiiitiii*« of Action. Sec Practice I. 4. .loiiHlcr of ArlioiiM. Sec Action at Law. ' ' ■ MiiK'i'iiii AII('K:atioii— Faiiiii-4> in |»roof'— .\oii-»iiit al- tlioii^li drclai-aiioii dciiiiii'i-alilo. St:c Non-suit. Replevin Goods not «'Jaini4'. Stmnrie. v. Bell, Bur. 287. ■ !*; i -, 1 !|T!! '^Hi w§ •992 PLEADING. 9— Debt. Nil debit is a good plea in a summary action of debt on ft record, under the Act 12 Vic, cap, 40. IVetmore v. Proven, 4 All. 442. 3— Assumpsit— Discharge of debtor— Order— Fraud- Replication. Defendant pleaded in assumpsit, that he was discharged from the debt by the order of a Judge under the Insolvent Debtors' Act 21 Vic. cap. 17. Replication — that the order was obtained by fraud and concealment, and by giving undue preference to certain creditors. Held, That the plaintiff should have opposed the defendant's discharge before the Judge under section 14, and therefore the repli- cation was bad. Collins v. Boyle, 4 AIL 582. Semble, That fraud in the proceedings before the Judge might vitiate the order. Ilnd. 4— Covenant— Policy ol insurance— Settlement anil adiustment of claim— Aider after verdict. In an action on a policy of insurance for $4000, alleging that the plaintiff had sustained damage to that amount,the defendant pleaded that the loss and damage sustained by the plaintiff, and the amount which he was entitled to receive by virtue of the policy, was settled and adjusted between the plaintiff and defendant at $3,500, and that the defendant paid and satisfied that sum to the plaintiff in full for his loss and damage, and for any claim against the defendant under the policy. Beplieation — that the de- fendant did not pay and satisfy to the plaintiff the said sum of $3,500, in manner and form, etc. On a verdict for the defendant on this issue — Held, That even if the plea was bad on demurrer, for not traversing the allegation, that the plaintiff had sustained damage to the amount of $4,000; it was sufficient after verdict, and therefore the plaintiff was not entitled to judgment non obstante veredicto : and Semhle, That the plea would be good on demurrer. McLeun V. Phoenix Insurance Company, 2 Han. 179. 4— Debt— Policy of guarantee— IVon esttactam. In an action of debt on a policy of guarantee under i -f^ PLEADING. 993 >i'der— Fraud- wbich had been renewed agreeably to its terms of payment of the premium and the giving of a renewal receipt, the defendant pleaded non estjactum. Held, That this merely traversed the making of the policy, and not the renewal receipt. In an action on a policy of guarantee, the declara- tion averred general performance, and the defendant in ad- dition to a plea of noii est factum, gave a notice of defence which set forth that plaintiff did not well and truly perform and fulfil all things contained in the said policy of guaran- tee and the conditions thereon indorsed, on their part to be performed. Held, That this notice being a traverse of a general averment of performance, was bad. Commercial Bunk V. European Assurance Society, 2 Han. 219. 6-Debt— Insurance— Fraud— Lunatic— Deed. To an action on a policy of insurance against fire, the the defendant, pleaded that the plantiff's deed of the premi- 868 insured was obtained by fraud and without consideration from one Coll, who was a lunatic, and so continued until bis death, and that the plantiff had no insurable interest. Held, That the plea was bad. The defence that a deed was obtained from a lunatic in fraud, can only be raised by the party defrauded or his representatives. Uickman v. The North British and Mercantile Insurance Company, 2 Han. 235 7-4ward. To debt on a bond conditioned to perform an award, it is a good plea in bar, that part of one entire sum awarded by the arbitrators, arose out of a matter not included in the submission. HUl v. Coy, 1 Kerr 187. r a Any facts which vitiate an award (except mis- conduct of the arbitrators)may be pleaded in bar to an action on the arbitration bond or on the award, though such facts do not appear on the face of the award. Rideout v. Stickney, 1 All 360. 8-Bail. Bail cannot plead to an action on the recognizance, a reference of the original suit to arbitration. They should apply to the Court to have an exoneretur entered on the bail piece. Sharp v. ConneU, 3 Kerr 126. fT^TJIP 1 — =- WHPIl J I TT 1)94 PLEADING. ^I'^Pl! O— Holii'y of iiiNiii'itiice — 4.'oii:i«>li. Wlieie by the coniHtioriH subjoined and reforred to in u policy of insurance upon goods against lire, it is dcolaiecl " that if theru should at any tiiuo be more than twciity- five pounds weight of gunpowder on the premises insiu'eil, or wher6 any goods are insured, such insurance should be void, and no benefit derived therefrom," the deposit of gun- powder over the above mentioned weight, though for a temporary purpose, will vacate the policy. To a plea alleging such a breach of the conditions of the policy, u replication averring that the powder had been put on the premises without the plaintiff's privity, because a vessel in which it was intended to ship it to Windsor had sailed without it, and the plaintitlf had used every exertion to tind another conveyance without success, in consequence ol which it remained on the premises until a fire broke out, which eventually consumed the plaintiff's premises, but that before it reached those premises, the gunpowder was removed, and thrown into the harbour, and no loss or dam- age occasioned thereby to the goods insured, was held bad on demurrer. Faulkner v. Centnd Inre Insnrancc Coinpnuy, 1 Kerr 279. lO—«;ovciiaiit--Bi*cacli— Title— Aiiswor. To an action of covenant upon the words "grant, bar- gain and sell," in a conveyance of land, assigning as a breach tlie existence of a prior mortgage, the defeiidant pleaded tliat the mortgage was recorded in the public records, and that the plaintiff' received the deed subject tn such mortgage : an issue thereon having been found for the defendant, judgment was given for the plaintiff, »-'// obstante rercdicto, the plea being no answer to the action. The covenant is broken immediately, and the plaintiii' need not wait until he is evicted before bringing his action. Good V. End, 1 All. G03. 11— Covenant— ]^Iiitiial and independent. • The defendant covenanted with the plaintiff' to teach him the trade of a blacksmith, and the p'.iiintift' covenanted to serve the defendant faithfully for five years, and not tQ PLEAJ)ING. 995 ff his action. ab?ent liimself from the defendants service without leave. Jlehl, that these covenants were nuitnal and independent, and that the non-performance hy tlie phiintifi' was no defence to an action against the defendant for hreach of his covenant. Ihtntcrv. (lifonl, I .1//. 701. {•t-Aj^t-tiiiiip^it- Uc injuria. De iujiirid may he a good replication in an action of as- sumpsit, and is not confined to actions of tort. li'ink of llntialt Xnrtli Amcricd v. Fisher, 1 All. (506. In an action hy the indorsee against the maker of a promissory note, the defendant pleaded that the note was discounted by the plaintiff on a usurious contract. Repli- cation (it; ////(ni(/, held good. Ibid. I»-Dii|)licity. A plea which averred that a bill of exchange was ac- ceptofl and received by the plaintiff in full satisfaction and discharge of the sum due, and that afterwards the drawee on sight accepted the said bill of exchange, and became liable to pay the same according to his acceptance, was held bad upon special demurrer for duplicity, as alleging two separate and distinct grounds of defence admitting of differ- ent replies. Boijd v. McLaiujldtiii, I Kerr 210. II— Rccog'iii'/iSiiicc— Sureties, The sureties in a recognizance entered into under the liev. Stat. cap. 98, "Of Controverted Elections," cannot plead, that they entered into it by a fraudulent representa- tion of the nature of it, believing it to be the obligation of the principal only. Tlte Queen v. Sjiarroic »siic— TVoticc of Iciitlcr. It is irregular to ; •- ead the general issue to the whole declaration, and give notice, under the Act 13 Vic. cap. 32, of a tender as to part of the demand ; and where, on such pleadings, a verdict was found for the defendant, it was set aside and entered for the plaintiff for nominal damages. Conlan v. Campbell, 3 All. 348. 45— A««iK»*^^ ot leasee agaiiDsl l<>!!><>tor— CJoveiisiiil<». In covenant, by the assignee of lessee against lessor ou a lease of land from 1st February 1830, for eleven years, with covenants that at tho expiratior of the lease the lessee and defendant should each appoint an appraiser to appraise the value of the improvements, etc. and that the defendant should then declare his option to pay for the improvements or continue the lease for a further time, with a clause of forfeiture if the rent should be in arrear. Breach, that at PLEADING. !}99 the expiration of the term the plaintitf (assignee) appointed iiu appraiser, notitied the defendant, and requested him to choose one ; but he did not, nor pay for the improvements, nor grant a further lease. Second plea, that the defendant was alw9ys ready and willing to continue the lease, etc., but the plaintiff never tendered one for his execution. Fourth plea, that before the expiration of the lease a (juar- tei's rent was in arrear, and the defendant demanded it on a day in the followinfi quarter and took possession as of his former estate. Fifth plea, that the defendant ^ is al- ways ready and willing to continue the lease for a i urther time, imder the like covenants contained in the original one; that the plaintiff continued in possession as tenant from year to year for a long time after the expiration of the lease, when the defendant assigned the reversion to B. and C. ; that the plaintiff did not, before such assignment to B. and C, nominate an appraiser, and give notice thereof, etc., nor request tlie defendant to clioose one, nor did he af- ter the assignment request B. and C. to choose an ap- praiser, etc. On general demurrer to these pleas — Jlrhl, That the second plea was bad, the averment of readiness and willingness therein not being sufticient for the perfor- mance of the defendant's covenant, and that he was bound to have made his option, and declared it to the plaintiff. IMd also. That the fourth plea was defective, as it showed no sufticient demand to work a forfeiture. Held also. That the fifth plea was bad for the same reason as the second. A iisleif v. Peters, 3 Kerr 543. 'in :i— Dcfi'iKM" nifdiiif^t i'<>iit. Sec Former llecovery. Src Action at Law VIII. 'i6 :\iii>isiii eive it, and to deliver the goods to the plaintiff. Rejoinder, That the plaintiff' had no auth- ority to receive the goods, or to make a tender of the freight ; wherefore the defendant refused to accept the tender or to deliver the goods to the plaintiff'. Held, That the rejoinder was bad, as being a departure from the plea. Doiiivilk v. Kn-an, 2 Thnt. 33. '^!>-K<>p|(>viii— Oiiii<$ prohsiiidi. When I' defendant m rei)levin pleads property in liimself or a third person, and issue is taken thereon, the "'ws of proving property is on the defendant, and if he !»ils in doing so, the plaintiff is entitled to recover. t at^ide. Sec Practice \I. 40. ;{;j— Ti'o*»|>as«— DiMress lor rent. It is a good plea to a declaration in trespass for taking goods, that the goods were distrained for rent and not being replevied within five days were appraised, and after such appraisement kept and detained in satisfaction of the rent ; although the defendant should have proceeded to sell the goods, yet the omission to do so will not enable the owner to maintain trespass, the original taking being lawful. The option granted by the Act 50 Geo. Ill, cap. ■21, sec. 7, to bring trespass or case, is to be understood according to the subject matter of the grievance, and not the mere election of the party. Rogers v. Biintin, 2 Kerr 2;]0. [Set; Action at Law IIL) :U-Tri'«l»asK— Breaking' pIsiintift'S close. To trespass for breaking the plaintiff's close, cutting down the trees there growing, and carrying away and converting the same : the defendant pleaded in the same plea that the close in which, etc., was-' his soil and freehold, and that he took and carried away the trees because they Wire incumbering the close. On special demurrer to the plea— //<'/r(\ That the plea was not bad either on the Siound of not sufficiently answering the declaration or as nuiomitiug to the general issue, and that any objection on the ground of duplicity must be specially assigned. Mc- L'lrhldu V. M'ihoii, 2 Kerr 368. •l''>-.>oii UainnilicaluM— "H lien ^oo«l. -SVc Bond L — Supra L 13. 'i(*~-.4(*lioii ag^ainKl 4>\eeutor~lnM»lveiiey. Where in assumpsit hy A. against 13., as executor of C.,. l! pleaded that the estate of C. was insolvent, and only i^iitiicieiit to pa\ Is. (id. in the pound, and that A.'s rateable I'loportion thereof was so much, which was acknowledged on the plea to be still due him ; on demurrer — Held, That the k'' M »pwff^ w 'Ml ■11 ^ ' 1] ^myswM kk i9H 1004 PLEADING. plea containing no allegation that the defendant had takdi proceedings under the Act to have the insolvency ascer- tained and the assets duly distributed was bad. It is only under the Act of Assembly 25 Geo. Ill, cap. 11, that such defence can be made available in a Court of law. Smith v. Egan, 1 Kerr 43. 3Y— Bill of Exchange given tor t, and the plaintiff" was uaable to present the same, and the same remains wholly unpaid; Special demurrer, assigmug for causes that the plaintiff''s remedy for the original debt was lost by his taking the bill of exchange, and was ctt restored by the destruction and consequent non-payment thereof, as set out in the replication ; that the facts statd in the replication were immaterial ; that after the receipt A the bill the liability for the original debt was only a secondary liability, and the plaintiff's primary remedy was against the personal representative of the drawee; and that the remedy, if any, against the defendant was in equity only. Held, That the replication was not defective for any •of. die causes assigned, but afforded a sufficient answer t^i the plea. Boyd v. McL'iitchlan 1 Kerr 210. ^8— Siierin— Escape— Justification. To an action on the case against a Sheriff for an escape. the defendant justified uuder an order of two Jubuices,maiie PLEADING. lC05. pursuant to the Insolvent Confined Debtors' Act, directing liim to (lis(;lmvn;c the prisoner in conse(j[uence of failure on the part of the piaintitf to pay the weekly support allowed under the Act to the defendant. Held, That the plea was bad as not averring that an order was duly made for pay- ment of a weekly support, and that the plaintiff had failed in paymant thereof ; the mere recital of these steps in the order of discharge not being sufficient. Poirer v. Johnson, 1 Ken 492. 39-Tn'S|»:iss— Cattle. Ill trespass by cattle, if the defendant justify the entry of the cattle through defect of fences, it must be specially pleaded, (iriswald v. llallet, Mich. T. 1834. 40-BiTiikiii;;:iii4l ciitcriii;;^ clo*>to— Taking property— .lii««tili(;<3tioii--€)i(>iier:il iiil not t^iKiiPd, A verdict recovered without judgment signed cannot be pleaded in bar to an action between the same parties. nt— Ocncral i<«Mi4>— Also |>l4>a in iibat«>- iiii'iit— Latter pica not available. In an action upon an alleged warranty of owneishii) ujjon the exchange of waggons, the defendant pleaded the general issue, and also in abatement the pendency of an- other suit for the same cause of action. Held, That he could not avail himself of the latter plea. Mercer v. Cnsiiian, 2 Han. 240. 43— !\'oii-ioin5— Flea in eonf'ession and avoidance— Formal Ktal<>- iiK'iit of iidmission not necessary if inferabio- Practise ulien not so. . It is not necessary that a plea in confession and avoid- ance be framed with a general confession and admissioi; It is sufhcient if the confession be distinctly imphed in, or inferable from the matter of the pleading. When a plea of this class is defective by reason of the confession or admission not being distinctly implied in ii' inferable from the matter of the pleadings, the party object- ing should apply to the Court or a Judge under chapter 87' See. 93 of Consol. Stat, to amend or strike out the plea. Driscoll V. Ihirkcr, 2 P. <(.'• B. 407. PLEADING. 1007 a ill :ibai4?- sikcii ailvaii ('oiii('!>>Mioii and avoirtaiiro— Travel- ^hi'j only t1iP in- (lii<>«'iii(>nt ill Count— lnH«t*<<>« only an!!>\%ered. A plea professing to answer one tresspass, where several are alleged, is bad. Ihid. 51— Ohjeetion lo pleam on ««evei'al ^i'onnd!!>— Flaiiilifl Mieeeeas«»o<* i, where several ►ice- Avcriiiciit ouis Act 40 Vic. ,)4-Joiii«lt>r ot C'ouiitiii— Dofeiidniit reliiNiiiit: to driivor note— ('oll«'«'.tiii||r money mid iipplyiiitcit to Mh own ii«ie -lieplieatioii— Ke\'oc»tioii or detena«linK. Joining counts in detinue and assumpsit is a misjoinder, iiiid is a ground of general demurrer. Qitivrt'., Whether such a defect is cured by pleading over. A count stated that plaintili' delivered to defendants a promissory note for the special purpose that defendants should procure payment at maturity on behalf of jjlaintiff, aud if they should not so procure payment, they should re-deliver the same to plaintiff on ri'quest ; that defendants recdved the note on these terms ; that they did not procure payment at maturity ; and that after maturity and before payment, plaintiff requested defendants to redeliver the note to him ; yet defendants had refused to do so ; and after such request wrongfully collected the money and ap- plied the same to their own use. Held, to be a count in assumpsit and not in tort. Defendants pleaded to above count that the note was delivered to them as bankers in the usual course of their business to collect and on payment to deliver the note to the maker : that the maker of the note [)aid the amount of it to defendants when it became due, aud that they gave the note up to him as he required. Plaintiffs replication alleged that while the note was in defendant's hands, and litiore payment, he revoked defendants' authority to collect, and requei^ted defendants to redeliver the note to him which they refused to do. Rejoinder, That before the plaintiff revoked the authority to collect, he became indebted to de- fendants in a larger sum than the amount of the note, which he refused to pay, whereupon they refused to deliver the note to him. IMd, a departure from the plea. Allen V. Bank of New Biunsuick, 1 P. & B. 41(5. Qiitcrc — Whether there is a banker's lien in this province; if such a lien exists the person against whom it is sought to enforse it must, it would seem be a Customer of the Bank. lb. IF 7'-7 TI' "ni mW iiii .1/ f 1010 PLEADINn. 54— Abateiiivnt— l\oii.ioiii«l<>i' ol pnrty— Partii(>illipOMill|j|: fll'lll. Tho plaintiffs contracted with C. C. & Co. to do certain work. An action having been brought against C. C. and A. S. and W. S. to recover for work done on the contra(?t nnd damages for broach of it by the defendants, the latter pkiaded in abatement the nonjoinder of W. who they allef; M composed the "Co." with A. S. and W. S. Held that tlie phiintili's having had reasona])le grounds for beUeviug tiiat tlie three defendants alone composed the firm of '' C. C. iV Co." it was sufficient to join them as defendants. McDonald v. Cnmminfi et. d. 2 Vniit Act — DiKf;liai'ice iiiidei' iiiu*tt Ix' |»U'!i«l4>«i -]>lo aiiiiwei' to |»i'ocoeiii pi'cvioiiNly obtaiiic«l \vlit>i-4> «li!^4■Jlal■!|;[<' not pl«>adc«l. The defendant having recovered a judgment against the plaintilfjissued an execution and levied on the hitter's goods. This judgment was set aside and the plaintiff brouglit ,in action for trespass for breaking and entering his house and securing his goods. The defendant justified niider the judgment. The plaintiff replied that before the first action was brought he had been discharged under the Insolvent Act. Held, that the discharge under the Insolvent Act should have been pleaded in the first action, and could not be set up in reply to the defendants' plea justifying under the judgment. Grattan v. Givan, 1 /'. it B. 711. 57— Insurance policy— Acceptance ot al>an«loniii(>iil- Fratid— IVece««!Siary averment oi defeiKlaiitN want of knoMic«l^<> or f rautl. A person induced by fraud to enter into a contract can- not after he has acted under it so that the parties can no longer be placed in statu quo, avoid the contract. There- fore where a party sued upon a policy of Marine Insurance, and the declaration alleged damage to the goods insured, and abandonment to the insurers, and acceptance of the abandonment and sale, a plea stating that the plaintitf at the time of effecting the insurance falsely represented the value of the property, without averring that the defendants l'LEAJ)ING. 1011 wro not aware of tbo fraud when they accepted the iibandonment, and tendered back the proceeds an soon as tliuv became aware of it, was held bad. IJojiil v. I'nion Ini Co. 2 Pi(f/. 408. .^M-Kopl<>viii— Noil 4'4>|»it— Otli4>r |>I(>iim— Oiiiin oI proof. Lumber was replevied out of the possession of the de- teiiilant who appeared to the action and pk'a(bd 1st .Vom n'pH — 2nd property in the defendant — iJrd property in W. E., and 4th property in the Crown. Held, 1st. that the pita of iKiii, cepit only put in issue the taking, and it was sufficient for the plaintiff to entitle him to recover to prove that the defendant had the goods in the place in which, ka, and that the onus of proving property out of the plaintift' \vas on the defendant ; and that this was equally the case ^vllere there was a plea of property in the crown. Oydcn V, linnjcoiii, 2 P/fry. 8G5. •w In Replevin where the defendant pleads Non o'pit or ccpit ill, alio loco the plaintiff must have a verdict if he prove that the defendant had the goods in the place men- tioned in the declaration, although the first taking was in another place. Mcdoican v. Belts, 2 Piui. 1)0. 60-Rt>|>leviii— OoooN«>4;NNioii or third i»arty— rioa Hint lU'lciKlant tooii. tlK^iii on 4^x4>ciitioii. Where in a declaration in replevin, plaintiflf alleged that defendant took and unjustly detained plaintiff's ))roperty, it is no answer for defendant to plead that the goods were in possession of C. and that defendant took them under an txeeution against him ; or under an attachment issued under the Insolvent Act, such a plea neither traversing nor confessing and avoiding the plaintiff's allegation. Bamnnton v. Giromrd, 3 Pm). 151. 6I-Rci»leviii— 'l'raver«c. In replevin a plea alleging that at the time of issuing and service of the writ, the goods were not in the possession of defendant, without traversing the wrongful taking, is bad. Ikmhon V. King, 2 Pug. 526. ^i~Plea non-tcnnit— Evidence of Traiid iiiny b<> ^iven iiiKier. McLeod V. MeGuirk, 2 Pug. 238. I» 1012 PLEADING. ill Jii§t':<;c<« I'ouit— Ti'o«|»ass— ^I'lioio jiid^iiiciit aiitl exe- cution HO jiifmificntioii to tlio jii4l;;in<>iit plaiiiiifl. See Judgment by default 9. 'J<(rl,fion v. O'honnrll. Special daiiiuK^c— Ti-avcri^iii;;: altc>;;atioii» of 4luiii:i^;(> not rouMlitntiiM; ;;i'^t of action. Pica niuMt be an an*4wci' to tlic action and n(»t to special dam">"j only. See Bond (Replevin bond ) Wlieelcr v. Stewart. Slantlcr — Pi'ivilc^:<'d coniniiiiiicatioiiH iiecc«ervi<-<> employee a^ain<>tt liis t!»npei'ior otticer. See Defamation. Waterbnrij v. De.ive. Insnraiice|— Policy— tJonditionM pi-4>cedent— Averiiioiit of performance— Waiver fraud. Preveiiliii;; exiiii- ;i;ni!4iiinent of five— Application for more explicit Ktateineni o( fa<-is. See Insurance 4S. (.iih.inn v. Xortk, />. .r .1/. Iitti. Co. Slierift making: h'vy on ;;ood.s of piiiinlill prior to a>>i !>»iv:nm<'nt l>y piiiintiti niMl<'r Insolvi'iit A«'l. caiiiio'' justiiy under a^>sijjnni« iit. Sec Tiov.a- n. Ilani-s V. I'ail. Award — Party noi <'ompellaB»le to pl4>ad aivard iMuiioii to stay action. See Arbitration 17. • FilinK pl*i»* A plea should be filed as well served and the Couiiuon Law Pro. Act (consul, stat. cap. 87,) does not alter the practice in ihat respect. Si Practice Vil. 17. Dcrcr v, [V'dey. Plene aiiministravit. On an issue of pleite (i(l)niiiistrarit, real estate of an in- testate unsold is not assets in the hands §of his aduiiuistra- tor for payment oi debts. See Executors, Sec, V. 0. Son assault S>eniesne— Evidence niider. See Evidence III. 38. Pejisned issue. See Practice S.IL. 'J^-J PLEADING. 1018 ;iwsir«li^lotioii 1)e Injuria. See De Injuria. Foriiinr recovery. See Action at Law — Former Recovery. 11ii<«l>nii«l and Wife. See. III. Notice of Defence. I A special plea cannot operate as a notice under the Act 13 \'ic. cap. 32. ltohiim>n v. Pdlmer, 2 All. 223. !i Proof of the ;. atter alleged in a notice of defence under the Act 18 Vie. cap. 32, will not en 'tie the defendant to a verdict, unless it amounts to a legal defence. Whelplcy V. Riley, 2 AIL 275. U A notice given under the Act 13 Vic. cap. 32 may be set aside with costs, if the matter stated is no defence to the action. JJo/din;/ v. Tritcs 2 .1//. 520. 4; A notice of defence under the Act 13 Vic. 82, whicli would have been bad as a special plea, will be set aside with costs. Wilson v. Street, 2 AIL 029. .) Notices under the Act 18 Vic. cap. 32 should state the grounds of defence with reasonable certainty, and siiew in substance, th. the matter e r;^ed would have been pleadable in bar. LcOal v. />/'//../, o All. 57. 4-I\otiee cannot be {;^iven oT inattei' notipleaii<>i'ality ot'I\'olicc. A notice of defence in an action of Hbel stating that tht allegations contained in the writing complained of are true; is sulHeient under the Act 13 Vic. cap. 32, there beiii"no atiidavit of the plaintiff that he was misled by the generalitv of the nc^tice. Tjoiih v. Gilbert, 4 All. 359. O— Evid4>iir<> iiiidor Ci>eiici'al l!i4«iic— IVot coii(4>^*iii;j and slvoiiit in i to plead several iiiattei'»t. Though it is not usual to require a rule to [dead several matters to be taken out, if insisted on, it must be done. I[')7.s'''// v. Atkinso.i, 3 Kerr 474. •>-^(>rvi<-4> — Time for |>l<>ai iiiinimi-'i )io)i curat Ic r — Application of ^laxim. See Supra I. 28. Want of necessary averment.; — Iiecovery under common lounts. See Bills and Notes VI. Counts of declaration are considend as distinct causes !•' 'oti(m. CruH-lcns. Wilson, 1 .1//. 7t)4. *> OtM-laratioii— Elltitlill^ Caune oraetioii Time, It is not a ground hv '-wrest of judgment that the de- tliiration is entitled generally of a term, and the cause o! actum appears to have arisen on a subsequent day in tlu- tiriii. W'llUstnii V. Pierre, 2 ,i//. 1()2. ? liiil>iu:iiily ill pU'adiii^f— ('on«>friietM»ii amaiiisj |»aiiy |»lea«liiiK. In pleading, if the words are equivocal, and two menn. ings [Tisent themselves, that construction sluiU be adoi^tcd 1016 PLEADING. which is most unfavorable to the party pleading. Se( Supra I. Bank of Nova Scot'ut v. Kstabrooks. ^S— KoplyiiiH; an— Joiiiiii;^ issue on |>I(>h— Siidici- «>u<*y ol proof ~Wai vol' cannot be siieuii. Sec Bame case. 11— Count— Assumpsit set out and trespass— lutrodiK" lory pari of count may be rc.iecteliis:iK<' aiKl become <'ount in trespass u'itli other counts in deciaratioLB. One count of a declaration set out in minute detail the terms of an agreement of letting a farm, and thou alleged that defeiitUint wrongfully and improperly without tlu' ■license of plaintiff and against his will and contrary to defendant's said agreement, broke and entered in and U[)on tlu; priimises leased, asid seized, took and carried away certain goods and chattels and converted and disiwsed thereof to his own use, there were other counts in tort and it being objected that there was a misjoinder ; //cW, That all the introductory part of this count could be rejected as surplusage, and it would then be a count in trespass. Clarke v. Hardiiu/,]! P. .(• B. 41)5. .loini' of actioii$«. ,S't'(' Action at Law XII. <'Hii«io rfiforred lo Ai-l»iti'jit:oii— Award made— !Vo re- vocation of antliority— Defendant not compelled to plead a ward— Court will stay on motion i^ubf^ie- qiienl aelion. 5'.r Arbitration 17, Miiner v. Brydcies. |'i-.\o lrav<'rM'. The principle of the Common Law Procedure Act, is that, whatever is not traversed is admitted. Bank of Stn-a Scotia v. Morrow, 2 Par/. 460. Corporation. In an action brought by plaintiffs in their separate name against defendants as endorsers of a promissory note, the defendants pleaded no endorsement and want of pre- sentment. Jlehl, That under these issues, plaintiff not linund to prove their incorporation. Ihid. i:stop|M-i— when not iieceN<>«ary to l»e pleaded but relj- iiij^ on Maine in eviclenee. .S'v Esto])pel I. 20. niu'ii jiidK:nieiit not pleaded iM e!sr being: over-ruled. Sec Criniinal Law I. 11. Reri v. Maillovx. Iiiim:it«-i'isii issues— When del4>ndant not Entitled lo liHvc tindinu^of'jiiry upon. •Sn' Nou suit 12. Martin v. M. Fire Iks. Co. *on iiNNault demesne— Kviileiic*' under -K«'plication not iiec4>ssary. ■S'cr Evidence III. 88. Sara;ie v. Stack PI.EIXK ADIVriNISTRAVIT. ^"■'■r I'.xecutors and Administrators. 05 wr 1018 POKTLAND CIVIL COURT. r! See Action at Law. (Notice.) POLICl OF OIARAINTEE. See Pleading II. 5. POLKY OF I]\S1TRA]\< K. See Insurance. POND-KFEPFK. See Lien — Contract 2, l>isil»ility- <'ii!>*toiii. The defendant, a poiid-kee})cr, agreed t') receive in charge all the plaintiffs loys, and to providi suiiicieut \\ar|;)sto secure thewi, and to deliver them at the plaintiff's mill, at the rate of one shilling per tliousand siiperlicial feet ; but if ho allowed the rafts to be broken up, so tbiy would have to be re-rafted, only nine pence per thousand was to be paid. It was proved that there was no custom in the lumber trade making a pond-keeper liable as an in- surer. Held, That the defendant was not liable oitin-r under the terms of the contract, or construed by the usage of the trade, for logs lost by a storm, and without any want of care on his part. Broun v. Cunnnl, ;5 , //. ;U(). PflOMt, OVFUfliFFKfili OF. See Overseers of I'oor. POR'rF.4I%», TOW\ OF. Civil Court— Town of Portluiid. The proceeding by review according to 1 lie^\ Stat. cap. 137, does not apply to a judgment of the Civil Court of thf Town of Portland, ui?der the Act 34 Vic. cap. 11, sec. 9'J Ex parte Moore, 1 Piuf. 333. PORTLAND <'IVIF COURT. Civil Court in Portland as jurisdit tion in actions t'n sums over $20 when the .lebtor resides in the Town of Portland or in the Parishes of Simonds and ljancaster,evHi though the debt was contracted elsewhere. Qiicere. Whether in actions in said Court forsu'ns umiir $20 it is not necessary that either plaintitf or defendant should res'de in Portland. Kx piirte Shephrrn«es $20. As tlie Police \. ngistrate of the Town of Portland when trying civil Causes n actions of debt under twenty dollars, acts by virtue of his commission as a justice of the peace, a judgment obtained before him in such a case is subject to review before a •' udiie. /vr jxa-tc Linton, 2 Pii;!. 412. ( ii*>c)^ over }f»*20. The proceeding by review according to I Piev. Stat. cap. l:i7, (Conaol. Stat. (Uip. (50,) does not apply to a judgment ill the Civil Court of the Town of Portland under tlie Act :', I, Vie. cap. 11, sec. 99, where the amount is over $20, I'Jx irirtf Muora, 1 Piiij. ;:i83. (.Sc? New Consol. Stat. cap. 00, srC. 59.) ( OIllilieilK'llt of P0S>i0ll. Sec Limitation of Actions IV. 2, 4. — Crown Grant. — Ejectment. ri't'ispiiMM— Siifilcieiit i»o»*»ioii lo iiiiiiiitiuit ii(;tion. See Trespass I. 10, 22, 23. TH'spa^is— Gl«'be |>ro|>(u-ty. See Trespass L 8. l'0K»te*«>tioii ciikiriii;; V\* lieiit^fit ot lieii'M. See Trespass II. 28. h'ioi- |H»MM(>Mi— Fo!S«»C!!i!>>ioii— Sei/.iirolkyCiowH— Titl«> u${;iiiii>>>t otiici- i»ai'liei<>i<;!i<<>>loii. ^V'' Ejectment II. 7. \\ il(lcill«>»i»« iSllMl, No fixed principle of title by possession of wilderness iiuul to govern all cases. Coates v. McAiileij, 4 All. 521. ><>'e Trover 22, same case. I^nilillld of |»OKM(><«M!OII. «l(>t«'|-||lillKII^^<><ics!i>ion. See Ejectment. 1~-Title by prior poftiACSiiiioii — Di.'>Uon foi .iiiry* The lessor of the plaintiff claimed under a deed from P. in 1838, and shewed a documentary title and actual possession in those under whom he claimed, as far back as 1820. The defendant claimed under a deed from S. in 1828. and proved actual possession since that timo. S. did not appear to have had any right, and the defendant since the conveyance from S. had applied to P. to purchase the land. Held, That the lessor of the plaintiff had shewn a imvia fdiic iii\e hy ^xiox possession; and the question of disseisin having been left to the jury, the Court refused to disturb a verdict for the plaintiff. Doc v. Hathcwaii, i All. 69. *2— Oraiiteo of Crown— IVatiire of po^scf^^ioii. A grantee from the Crown is deemed to be in possession while the land remains unimproved and unoccupied. Ih,i V. ClKiee, 3 All. 501. The pob^ession of one who enters upon land wrongfulh is confined to that ))art of which he has the actual ami exclusive occupation. Ibid. ^ Plaintiff and defendant occupied adjoining lo for twenty years by a line and fence extending from tlit front through the cleared land. Semhle, That in the abseuct of any actual possession beyond the clearing, it must b; con:;idered that the possession from thence to the rear o the lot, was intended to be a continuation of the line in tin front. Belyea v. lielyea, 3 All. 588. 4— Po«ioii of widow after doalli of iinsbsuid— I'oi whom holding. A. having been in possession of land fourteen year? died leaving a widow and one child, (the lessor of the plain tiff who was married and not living with her father;) tlit widow remained in possession about eight years, when tin POSTEA. 1021 I ot possession. seisin* «lii, :^tion lor j8 upon land wrongfully le has the actual m\ occupied adjoining lots nee extending trora tii. hW^, That in the absence Uie clearing, it must be [n thence to the rear ot .uatiouofthohneinth. [oalh of luisl»;uHl-l «' defendant entered. Held, in the ahsence of evidence for whose benefit the widow was holding, That it could not be presumed that she was holding for the heir, and therefore that her possession could not he added to that of A. to make out title in the lessor of the plaintiff. Doe v. Wixvl- uvrth, 3 All. 577. Qiueii', Whether, if the heir had been an infant, the widow might not he presumed to hold as guardian in socage. Ibid. $-§iitiieieiicy of possession— Crown grant. Where title is claimed under a Crown grant, vhich is resisted on the ground that the Crown was out of possession at the time the grant issued, and there is evidence of con- tinuous acts of prior possession of trie land, adverse to the Crown, for twenty years, such evidence should be left to the jury ; hut, in order to prevent a Crown grant from taking efi'ect, on that ground, the possession should be de- fined, actual, and continuous : mere acts of lumbering on Crown land from year to year, without any apparent bouhds, are not sufficient. Smith v. Morrow, 1 Pinj. '200. SufBciciiey of poss<>sHioii — Unregistered deed. Sec Tresnass I. 3. See further — Deed, Ejectment, Limitation of Actions, Trespass. Possession niider ITIoilgagee good us against .^lort- gagee and any person claiming nii«ler him. See Mortgage. Doe d. Hardbu/ v. Hanson. 6-iVo documentary or otiier title— Finding of .Inry. As between parties without documentary title or other title but possession, each party seeking to make out a title for himself, the Court will not interfere with the finding of Jury unless clearly and uriequivocally wrong. Estahrooks v. Brean 2 Pug. 304. POSTEA. 'S'v Amendment III. 5. — Keplevin 4. When aposteahas been stayed by a Judge's order, the clerk of the circuits should not deliver it out to either party ,' f\ m 1022 POWEli OF ATTOENEY. lif witliout a rule of Court or Judges order. Stecves wWihon, 2 Pufj. 492. I'<»KTIVIA^«TEU. I^M'iiiplioii IVoiii lii;;li\%'>iy Inhoiii-, Sec Commissioner of TJiglncai/s v. Plidii; Ber. 371. rOSX' OFFICE. Fr4>Miiii|>lioii of'l<>tl('i' I'osK-liiiiK 4l4>Nliiiatioii. Sec Bills and Notes IV. 7. l>OLI>DAC]ii:. See Sheriff. FOI !>ll>-liFFFFK. See Impounding. POWEK OF ATTORNEY. E^K'iit of'aiitlioiity. A power "to make and executt any note, bond or bonds or other instruments, or contract, and to make, execute and acknowledge all contracts, orders, deeds, writ- ings, assurances and instruments which may be requisite or proper to effectuate all or any of the premises," will not jpniHd faeie authorize the attorney to accept and execute leases of real estate containing burthensome covenants on the part of the lessees. Mayor of M. Join: v. Lockirood,i Kerr 443. Ag:oiir*> Autlioiity. See Principal and Agent G, 7. Fxcoufioii of— Affi«la%'it. See Attachment 10. Proof of. See Deed I. 14. ni'iiisiiid ol roMt*«— Powoi' of iittoriioy. See Attachment. Po\v<>r to «><>ll by will. See Will 32. McLeod v. Frith. <'oiiv<'y;iii«M> by «I(> iiiidor power «l attorney. N«v Deed 111. '>. PRA.GT1CE. 102» Dolcuaiory of powers. ;;('(• KxofMitni's, A',c. I. 7. rOWEKS OF LROIKI. ITL'Iti:. Si'c Le^ialative Acts. — British North America Act. PRACTICK. 1. DECIiAFlATTON. 11. Venur. HI. Entry Docket. IW Process — Scire ^Acrvs — Sio'ivrci". oc Pvi'i;i{s. ^tc. V. Motions and Applications. VI. StaYINO and setting A-JIDE PuOCBEDlNiiS, SVIIKN Granted or IIkkused. VII. lllRKOT'IiARITY. Yin. Rules. IN.. NOTK^ES. X. [N(iUIRY (writ of). \I. Demuruer. XII. Feignkp [ssue. XUI. Arrest OF Judgment. \IV. Incidental Procerdinos. I. DEC.TiARATlON. l-FiliiiK A declaration may be tileil dc bene cane, within thirty (lays after the last return day of the terra at which the writ is returnable. Pearson v. Kierafead, Mirlt. T. 1865. 'i Under the rule of East T. 25 Geo. 3, a declara- tion must be filed in all cases ; and the time for pleading does not begin to run until it is filed. Therefore, where a copy of the declaration was delivered to the defendant's attorney on the 26th July, but the declaration was not tiled till the 80tli, a demand of plea cannot be made till after the expiration of twenty days from the day of filiiif,'. Cass- 'iiore V. Tnruey, C. 3/s. 103. 3-Eiititliii;;. Entitling a declaration generally of Trinity terra, where tlie writ is returnable on the last day of the term, and the Quse trit'd in vacation before the next terra, is only an IMAGE EVALUATION TEST TARGET (MT-3) Z ^ .d> © 1.0 I.I 25 hi, 928 1.8 i , • 1.25 1 1.4 1.6 = : „ ^/' ► V] <^ A ^c^ ^ V''^ ^^* / /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 I/. i9 Z W: -; ill 1024 PRACTICE. irregularity, which is waived by pleading and going to trial though strictly, the vetiire would not be returnable till Michaelmas term. Woodward v. McRae, Mich. T. 1834. 4— Counts— Distinct Causes. The several counts of a declaration are considered as a distinct cause of action ; and if only one count is demurred to, the Court cannot notice any defects in the other counts. Crmvleyx. Wilson, 1 All. 704. See Pleading I. «'(--Copy 4lcliv(;red— Correctness— Presumption. It is presi-.'oed that the copy of the declaration delivered is a true tran^- ft of the declaration on lile, and the defendant's at?, rai;. is not bound to make a comparison. Brocheaa v. Dt . 'irisay, 4 All. 122. II. Venue. 1— Riyfiit to lay venue— Ciinn||[e ol— Itesforiiif;. The Court will not change the venue from one county to another, where the cause of action accrued partially out of the Province. Dempster v. Stewart, 1 Kerr 103. *2 The venue in a cause was laid in the county of Y., issue was joined and notice of trial given for thatcoauty, and afterwards countermanded ; an a[)plicatiou on the part plaintiff to change the venue from the county of Y. to the county of N,, on affidavit that one material witness to prove the plaintiif's case resided in the county of ii., and two others in N., was refused with costs, no other special reason being stated. Commercial Bank v. Wiiliston, i Kerr 607. 3 The venue may be changed upon the ordinary affidavit, in an action on a written agreement in the nature of a guarantee. Howell v. Emmerson, 2 All. 455. Where, after a cause of action has arisen, the county is divided, and an action is brought in a different county, ibe affidavit to support a motion to change the venue should state in which division of the county the cause of action arose. Ibid. "T" PRACTICE. 10*a' 4^ The venue in a cause was laid in Northumber- land, but the presiding Judge at the Circuit being connected with the plaintiff, declined to try it. The phiintiffthen ap- plied to change the venue to Kent, and obtained an order to do Ro, with leave reserved to the defendant to apply to bring it back to Northumberland. Defendant tlien obtained an order on the common affidavit to restore the venue to Northumberland. Held, That as this was the first op- portunity defendant had of applying to change the venue tiie order was|properly made. Rankine v. Letsncc— Ex- pt'iiKe. Where on an application to change the venue, it ap- peared that the change would be a convenience to the defendant, whose witnesses all resided in the Countv to which the venue was proposed to be changed, but that it would be less expensive to the plaintiff to try the cause in the County where he had laid the venue the Court refused to interfere. Cariill v. St. John, Ins. Co. 3 /dl. 431. ■ h i i : ■V i ! ■■'(f 5" ■ ' ■ i'' 1 '*: i. ' ■ . t< T ■ 1 tHi If { ^ 1 1026 PRACTICE. 9— <'oiniiioii afflduvil — JiKiKO oi'dcriiiiK venu<> to br rhaiii^ed to otlioi* county tliiin one Nought loi*. Where an application is made to change the venue on the common affidavit, and the phiintiff in answer to the summon?, shows that the cause of action did not arise in the county to which the venue is sought to be changed, the Judge has no right on that application to ordf r it to be changed to a different county, even though tlie plaintiff's atMdavit disclosed that the oau'^e of action arose there. Crnifi V. Glazh'r, 1 /*. .C /.'. I. lO Whore party has previously been allowed to come in and defend on terms of taking short notice of trial. Application for chan;^'e of venue only a short time before circuit not granted. .S'^v lind v. Lvoiiiivd, 2 Pikj. 8.'). 11 Application to change venue hIioiiM bj mule a: Chambers befin-e Jmli^c. Vrnvt ri'l'ii-c 1 to fntcrtaiii motion. Fiiirrvtt V. Ml'ii, -1 I'll;/. :Uil. III. Kniuy Dock III'. I -Allowing' flliiiu: ol writ. Where a writ was returnable in ATichaelmas term, but the cause was not entered, in consequence, as the plaintiff alleged, of his being unable to obtain the affidavit of the service of the writ, and the defendant appeared within thirty days after the return of the writ, and negotiated with the plaintiff for a settlement, which was not effected, the Court refused, after the lapse of two terras, to allow the plaintiff to file the writ and entry docket. Wetmon' v. BriiniH, 4 All. 590. *i— Entry of cniiM<'— Excuiite for non-entry. A writ was returnable in Trinity Term 1858, but the cause was not entered. The suit was defended and a ver- dict given for the plaintiff, which was affirmed in Easter Term 18«0, after a motion for a new trial. The Court re- fused in the following term to allow the cause to be entered and the judgment signed, though the plaintiff's attorney swon- that the omission to enter th" cause wa-i an over- sight, and not from any intention of violating the rule of Court. Mi-Aiil'n V. GiiliU'H, 4 .1//. jV.U T^'' PR.*CTICE. 1027 i|{ venuo to be 'i HOiim^lit for. ige the veuiie on in answer to the ri did not arise in bo be changed, the to ordf.r it to be agh dlie plaintiffs 5tian arose there. V been allowed to lort notice of trial. , short time before r,I, 2 Pun. «r,. should 1)^! male a: entertain motion. t-lniiiifllrient exriise. The Court refused after trial and verdict for the plain- tiffs, to allow a cause to be entered, though the deiendant's attorney consented ; the only excuse alleged for not enter- ing it at the return of the writ, being that the plaintifiPs at- torney expected it would have been settled. Dohcrty v. Mc- Gratii, Tin. T. 1860. 4-JuiIkc allowing: entry docket to be filed iiHofpre- vioii»i term. A writ was issued in this cause in May 1872 returnable in the following Trinity Term. The process was icsued in order to save the Statute of Liinitations and was returned non est. About the Gth of August then next, the writ was filed with the clerk but no entry e«iiieiit werviee - .risdve% order to file writK, Ae. A Judge's order was obtained on July 13, 18(53, to hold ilelVndant to bail in which a vapina issued returnable in Michaelmas Term following, but which was not served. Subsequently alius and pltiriix riipiases issued, but the de- Ifudant was not arrested. The affidavit on which the order for bail was made was not filed and could not be found. No entry was made of the cause until July 19, 1872, when an entry docket and the writs were filed as of Michaelmas Term 18{)5, under a judge's order. A third plitrirs rap'ni.'f was issued on July 1'-. 1872, on which defendant was arrested and gave bail. An application being made to rescind tho latter order, aiiil also to enter an exoneretur on the bail piece and dis- tl'arge the defendant out of custody. Hchl Ist. That pro- fess having issued within a year after the swearing of the ftWdavit, the arrest being made on a writ which was a con- PR.*CTICE. 1027 t-lne filed as of pre- vioii»i term. A writ was issued in this cause in May 1872 returnable in the following Trinity Term. The process was icsued in order to save the Statute of Liaiitations and was returned non est. About the Gth of August then next, the writ was filed with the clerk but no entry docket was filed. At a subsequent stage in the cause the plaintiff obtained from a judge at chambers an order for leave to file the entry docket as of Trinity Term 1872. A motion being made to the Court to set aside this order, the applic- ation was refused. Ttiylor v Gerow, 2 Pti i y 1; . ;. _ iig^bi 1 IL uy^ 1028 PKACTICE. tinuance of the first was good, though it took place several years afterwards, 'ind. That, though the first writ should have been returned aud the cause entered in Michaelmas Term 1865, the Judge had power to order the cause to be entered nunc pro tunc and the Court refused to set it aside. Palmer v. Dinsniore, Pug. 150. Cause Mi'uck off special papers— Re-entry of. See Infra XIV. Milner v. Bridges. Ki'fiisal to allow entry of cause— lnsufll«*ieut excuse lor new entry. See Entry of cause. IV. Process. Scire Facias. Service of Papfub, vVc. Process — Scire Facias. 1- Ac Etiain— Omission. If a bailable writ states no cause of action in the ac etiam clause it is an irregularity for which the bail boud may be set aside, but the irregularity is waived by the party putting in special bail. Camphdl v. Lou-den, 1 AU. 43Ji. 1 a— Summons issued against a corporation under the Act 12 Vic. cap. 39, sec. 16, should state cause of action truly. See Corporation 20. "4 A en. sa. differing in the amount only from the judgment upon which it is issued, is not void, but ouly irregular. Spence v. Stewart, Ber. 219. 3— Scire Facias— S^iiiit of Crown. The writ of scire facim issued at the suit of the Crowu^ is not a prerogative writ ; and therefore the Act 2 Wm. IV, c. 20, abolishing the proceedings by two nihiU, andsubflti- tuting a service of the writ instead, applies to suits of the Crown. Reg v. Hnmmond, 3 Kerr 181. Semhle, That in a writ of scire facias issued upon an inquisition taken upon a bond given to the Board of Ordnance, it is sutticient briefly to recite the proceedings on the inquisition, and set out the penalty of the bond, with- out assigning breaches ; also, that the boud being in ell'ect PRACTICE. 1029 mltl«'i«H> «'\cuse )F Vapfrs, iiC. U V. Loicden, 1 All joint and several, each obligor may be proceeded against separately. Ihid. 4-§rii'e Facias—To repeal Letters Patent— A vemients» A Hcire facias at the instance of a private prosecutor, to repeal letters patent, can only issue on the fiat of the At- torney General, who may withhold his assent if no sufficient ground is shewn. A draft of the writ and a statement of the facts on which it is founded should be laid before the Attorney GeLaral, and if he is disqualified from acting, the Solicitor General or a Crown lawyer should decide on the application. LKhd v. Dm//'j/ 3 All. 57. Letters patent were granted to B. in 1841, subject to forfeiture if he or his assigns aid not commence effectual ininiug operations within two years ; in 1852, B. assigned to the plaintifi", who sued out a scire facias to repeal a grant of the same rights made to D. in 1850. Held, That the mre facias should aver that the conditions of the first grant bad been performed, or that the Crown had dispensed with, or waived such performance. Held also. That the defend- ant might traverse such averments by pleas. Ibid. The Act 18 Wc. cap. 32, (if applicable to such a case) does not take away the right of pleading. Ibid. •'i-Scirr Farias— I\eces»iai*y Stateinciits— Joint Debtors —Pleading. Every writ of Hcirc facias should state the particular circumstances which entitle the party to the remedy sought, 80 that in the case of an ordinary scire facias under the Statute of Westminster the party would not be entitled to an execution against a joint debtor not brought into Court in the original action or under the Act of Assembly, 2G ('fo.III, cap. 24, and nothing whichmight have beenjpleaded to the original action can be pleaded to such ordinary scire fiic'Vfs. Johnston v Tihbetts, et al., Ber. 356. <>-To revive judginent—Joint debtors. A mre facias, in the ordinary form of that writ to revive a judgment against two defendants, where no execution has issued within a year and a day, is a sufficient scire facias under the Act 26 Geo. Ill, cap. 24, to obtain execution against Wi „ M--i^..^ r;! 111: tf^iJ ii t-/ l> ^i ' 1 ! 1080 PRACTICE. the separate property of one of tlidin, who lia I ii. l-^a«'i»»i— JiiS 4»i'4l4'r. If the service of a writ of ttclre Jtidas is not personal. there must he a Judge's order to perfect it. Wetmurr v. Levi, 5 AIL 55. fK-Scirc FaciaN a«l aii«li«>nlii'«>i'y— CeitifieuU' or Attorney. Where a writ was made out and tested on the Uth Juui' and remained in the Attorney's Ollice until the 25th, when he served it on the defendant. Held, that it was not issued until the 25th, and the attorney having taken out his cer- tificate before that day, though after ohe writ was made out, the writ was vaiiil. S'^eli/^ v. lilisn, 1 /-'. d; B. 58. II— Capiat uiir (JuiimoI. !!itat. 4'a|). 3M, ••<'('. I-Cn- dorMciiieiit. It is not necessary that a capias issued under Act 88, Vic. cap. 4, see. 2. (Consol. Stat. 38, sec. 1.) Should be eudorsed with a statement of the cause of action in addition to the amount due. Mcintosh v. Burnett 2 Pay. 258. 12— CoiitiHuatioii ot Writ— Arrest. Process issued within a year after the swearing of the affidavit, arrest made on a writ which was a continuation of the first writ, good. Judge no power to order tilini; nunc pro tunc. Palmer v. iJinsmore, 2 Pug. 150. ' ) I'KACTICE. 1031 ,.|.y-€eitiftt!U«' o( illi'red Writ— l>iiy orall<'niti4»ii ronmi4l«^r4>«l tli«> i>»*»iiiiiy of writ See Limitation ot Actions lU. I, 2. :^i>crNMity ot'K«;-M«'iiiiii|;. iSVr for |»4>rf°t'«'tiii|t: Mcrvico— M«>iliiiK or r«'tus iiig[ to net u«i4l«>. See Practice VI. Skrvick ok Prockss — Notices — Kules — Declauation. i;t When service not personal, tlie affidavit shonl I itiite the name of the person served. Sandall v. Godsoc, 1 .I/U41. Il-Wlicii not per!>iOiiHi— JiKlKeS ortirr. Where a writ was not served personally, and no Judge's order was obtained to perfect the service according to the Act 7 Wm. IV., cap. 14, sec. 1, and the defendant iltnied any knowledge of the suit, a judgment and execution Were Bet aside for irregularity, though the defendant's affidavit of ignorance of the suit was contradicted by his admission since his arrest. James v. Dapres, 1 AU. 506. ^- I-)— Ag«>iit of attorii<>y. Under the practice of the Court, service cannot 'oe made of papers on the Fredericton agent of an attorney, resident in Saint John, unless the agent be specially authorized to receive such service — the rule of Court ru- 'luiring att orueys, not resident at Fredericton or Saint John, to have agents at either place, may be considered obBolete. Hatch v. Scoullar, 1 Kerr u7l. 16— Service ot rule iiiiiii. Irregularity waived by entering cause on special paper aud appearing by counsel. BarUnv v. O'Donncl, 1 All. 443. 17-§nmnioiiM —Service of— JVIiiitin. A summons from a captain of militia in a proceeding to remove a fine for non-attendance, under Act 6 Geo. IV, cap. 18, sec. 12, is not well served if left at the dwelling house of the party in his absence, and not received by him in time. Ex parte Ritchie, 2 Kerr 75. i mi i i ' II i ■ i'.'i ■ ■-,>: . i^jUki^' 1032 riiACTlCii. On foreign Corporation— Aflidnvil. See Corporation 20. Sbrvioh of NoTicEf — Rules — Declarations. Service on a clerk is insufficient, unless at the 18 office or dwelling house of the attorney. Mo'dton v. Dih. blc, Her. 128. See General Rules, 106, 108. Deeiarnlion— fUectinent. See Ejectment. 19-Aflidnvit ofMi'i'vice. Where the affidavit stated service of motion to have been on B. W. H. without stating that he was the party's attorney. Held, insufficient. Brown v. Bartlet, 3 Ken 309. 90— Excufiie Tor not serving. Where a rule nisi has not been served some reasoi must be shewn for the omission to induce the court to enlarge it — and the application should be made in the term in which it is returnable. Donoghne v. Todd, 1 All. 598. 91— Bill against attorney. In general the service of copy of bill on attorney should be personal ; service on a clerk at his office, without his authority to receive, it, and refusal to accept service, the attorney being absent from county is not good. Sayre V. Gilbert, 2 Kerr 225. Acceptance by authority— Delay in application to set aside proceedings. See Infra VI. 28. 99— Notice of motion. In cases of motion requiring 14 days' notice before the term at which the motion is intended to be made, the day of service is considered as one of the days. Jai-vis v. Pech, 2 Kerr 607. Setting aside proceedings for defect or irregularity. in service. See Infra Vi. tmmm T^l PRACTICE. 1033 ipplicntion to m or iiiegul«rity '» {Service or iioticr on Stiidoiit— RoqiiUito aflidavll. Affidavit of service of a notice of motion " on a student iu the oiilice of plaintiff's attorney " not sntlicient, it not stating that the service was at the o!Uce. licr. 3 12. j3--§<>i vic4> on iiifontol «lofonilnni llvi:9^: ont ol'lhc pro- vince— Pliiintift anol Mtnt. Kec 9. Tho plaintiff was the agent of the defendant who lived out of the province. The plaintiff caused writs of summons and attachment to be issued against the defendant and to be served upon himself as agent for the defendant under section nine of chapter 37 of the consolidated statutes, and thereupon communicated to the defendant the fact of the issue of the writs and of the service thereof. Jfeld, That the service was bad, as it would be contrary to reason and natural justice to apply the section to a case where the agent was himself the plaintiff to the suit. Held, by Allen, C. J. Weldon, Wetmore, and Duff, 7. J., (Fisher diss) that the service was not a mere irregularity, but was wholly defective, and that the case ought not to be governed by the ordinary rules relating to waiver of irregularity. Pmot V. Rohcrts, 2 P. d- B. 388. 'il—Pi'ccess— Service on company. In an action against incorporated company, if the ser- vice of process was on, or the attorney entering appearance was authorised by, other than the duly qualified officers of the company proceedings will be stayed without payment ofcosts. Spurr v. Albert Mining Co., 2 Pug. 260. 'iS-Suinmary conviction— Service of snninion$«. An endorsement on summons to appear before sessions to answer charge of selling liquors without license "notice to appear was served on defendant," held not sufficient but that the clerk should have entered how the service was proved and when and how it was made. Regina v. Golding, 'iS-Conviction— Service of, not necessary. It is not necessary, before a defendant, convicted of an 66 1084 PRACTICE. , i :,. i ('! m iluf hi* *::i; H' : ;':i ir- assault, is imprisoned, that he should be served with a copy of the minute of conviction. Reginn v. O'Lmrii, 3 Pu(i. 231. !i7 -Ser%ie«> ol IVotif;i> on iiitiidcnl- iii<*iit. ■iiNiiniripiil MiaU'- Affidavit of service of a notice of motion " on a student in the office of plaintiff's attorney " not sufficient, it not stating that the service was at the office. Carliff v. Ilokrt- son, Ber. 342. 98— JndnreN order. It is not necessary to serve a Judge's order and demand costs before moving to make it a rule of court. Bell v. Moffat, 2 P. tt- B. 406. 99— Public Holiday— isicrvirc of pnporoiiQiiceim* Biiili day. The service of a paper upon an attorney on the Queen's Birth day is good. Upton v. Phelan, 2 P. d- B. 192. V. Motions and Applications. 1— Entry on motion paper- Obtainint; costM. Where a notice of motion has been given pursuant to a rule of Hil. T. 6 Wm. IV, and the party giving it does not enter the case on the motion paper ; the opposite party, in order to obtain the costs of preparing to resist the motiou, must apply to the Court for leave to enter the cause, on the second day of the term for which the notice was giveu. Seelye v. Willunns, 1 All. 442. il ^Whcre a cause has not been entered on tlie motion paper according to notice, the party to whom such notice was given may apply to the Court for leave to enter it, in order to obtain costs, immediately after the naotion paper is finished. Jones v. Snodgrass, 1 All. 608. 3— Notice of appeal— No entry— Costs. Where notice of appeal from the judgment of a Judge in Equity is given, and the case is not entered on the appeal paper, the opposite party may move to have it entered and dismissed with costs. Duncan v. Reynolds, 2 Han. 187. I'KACTICE. lOBfi I be served with a ina V. O'Lcdciy, 3 iiMiiin4*ieiil «itiiU>- lion " on a student )t Bufticient, it not .. Carlijf' V. Uol«:n- '8 order and demand B of court. BHl V. r on Queens' Blrtli )rney on the Queen's P. ti- B. 192. IONS. ig cost*' given pursuant to :ty giving it does not te opposite party, in :o resist the motion, iter the cause, on the the notice was given. |een entered on the mrty to whom such rt for leave to enter fely after the motion 1 All. 603. Cgment of a Judge Inot entered on the ly move to have it Xican V. -ReJ/noMs, 2 l-Riiiry <'oiiiiM'IN duty. It is tlic duty of counsel to me that rules obtained by them arc properly entered in the minutes of the Court. Kv jHirb- (il'tsii, 2 .1//. 88. .t-To I'l'NciiKl JiidKeN ordor— D(>lny. An application to the Court to rescind a Judge's order the lifth ti'rin after it was made, in the interim tliere having been several proceedings between the parties in relation to the case, was held too late, though the same objection might not apply to an application to amend the consent rule. Dot' (Icm Hill v. Todd, 3 Kerr 295. .til— JiidKo% oi'doi' KrniitiiiK Icnve to appeal— riiialily of. The order of a Judge made in vacation, granting leave to appeal to the Queen 'n Council, and settling the terras on which the appeal will be granted id final, and cannot be revised or rescinded by the Court. Allen J., dnhitantc. Ikmvilk V. Kevan, 2 Ilan. 175. 9 b-Applyiiiic to Mot order aside. Where a Judge makes an Ex parte order an application should be made to him to set it aside before applying to the Court. Jarvis v. Banist, 3 Piuf. 327. ()~Rcli«>r— Crown bond— Scire facias. Where the Attorney General had instituted a suit on behalf of the Crown, by scire facias, on a treasury bond, conditioned for the payment of duties, the Court refused, upon a summary application on affidavits for relief under the Statute 33 Hen. VIII. cap. 39, to determine the ques- tion as to the defendant's liability, the defendant not having pleaded to the set. fa., and the Attorney General not assent- ing to the application. Regina v. Street, 1 Kerr 373. ' — Relief of Insolvent confined debtor, notice and copies of affidavits being served, rule absolute. See Wilinot V. Babino et. al, Ber. 62. *■ Counsel making motion in Court is bound to state on whose behalf he moves. See Gillespie v. Fogarty, 1 Kerr 162. '-Application for attacliinent— Time. Attachment against witness for not attending on sub- "T ., 'UACTICE. Knif) l-Eiili'>' roiiii««>l*M «liity. It if? the duty of counsel to see that rules obtained by them are properly entered in the minutes of the Court. I'!v IHirU' aixxs, 2 .1//. 88. .f-To n'NCiiKl Jii«Ik<*% order— D«>lay. An application to the Court to rescind a Judge's order the liftli term after it was made, in the interim there havinj; been several [)roceedinf];s between the parties in relation to the case, was held too late, though the same objection might not apply to an application to amend the consent rule. Ihir dem Hill v. Toihl, 3 Kerr 296. •I n— JiiiIh:<>% or«l<>r KraiitiiiK leave to appeal— Fiiialily ol. The order of a Judge made in vacation, granting leave toappeal to the Queen in Council, and settUng the terras on which the appeal will be granted id final, and cannot be revised or rescinded by the Court. Allen J., dnhitantc. Ikmv'dk V. Kevan, 2 Ilan. 175. i b-Api»lyinff to set order aside. Where a Judge makes an Ex parte order an application should be made to him to set it aside before applying to the Court. Jan-is v. Barm, 3 Ptu/. 327. «-Rclier— Crown bond— Scire facias. Where the Attorney General had instituted a suit on behalf of the Crown, by scire facias, on a treasury bond, conditioned for the payment of duties, the Court refused, upon a summary application on affidavits for relief under the Statute 33 Hen. VIII. cap. 39, to determine the ques- tion as to the defendant's liability, the defendant not having pleaded to the sci. fa., and the Attorney General not assent- ing to the application. Regina v. Street, 1 Kerr 373. ' — —* — Relief of Insolvent confined debtor, notice and copies of affidavits being served, rule absolute. See Wilmot V. Bahino et. al, Bcr. 62. "■ Counsel making motion in Court is bound to I state on whose behalf he moves. See Gillespie v. Foffarty, U'err 162. ^^-Application tor attacliinent— Time. Attachment against witness for not attending on sub- 1036 PRACTICE. poena must bo applied for at the next term after the contempt is committed. See Attachment 9. lO— To enlarge rule— Time. Application to enlarge a rule should be made at the term in which it is returnable. See Donogliue v. Todd, 1 All. 598. See Enlarging Rule. II Motion to enlarge rule nisi for attachment against a witness for not obeying a subcena on the ground that he could not be served with the rule, must be made at the term in which the rule nisi is returnable. Sc Ahhut v. French, 3 Kerr 368. 12— For new trial. See New Trial. 13— Equity «»ide. Where an issue is sent down for trial by the Equity side of the Court, under 17 Vic. cap. 18. sec. 18, (2 R. S., p. 8n,) a motion for a new trial must be made before a Judge in Equity. Tlodye v. Reid, 1 Jfaii. Sd. 14— Venire 4le novo. Motion for may be made in the same manner as for a new trial. See Pelton v. Temple, 1 llan. '21 A loS- Arrest oljudgnient— Criuiiual trial. Objections on motion are confined to the questions in the case stated by the Judge under the Act 1 Rev. Stat. cap. 160, sees. 22, 23. Reg v. Feniidy, 3 All. 132. 16— JVIsindamus— Affidavits— GntiiMng. Attidavits used on motion for a rule nisi for a mandamus are irregular if entitled in a cause ; but the rule will be dis- charged without costs. Reg. v. Justices of Ycrrk, 1 All. '.'<). 17 — Second appilcatioii loi* iiiaiiidainus. Where an application for a mandamus failed beeauiM there was no sufficient demand to perform the act, whicli the applicant claimed to have done, it cannot as a general rule be renewed after a sutricient demand though there may be circumstances warranting a departure from this ruK. Regina v. Coiiiinisioncrs o/Setcers, St. John, 1 Han. 3. ^PM^nqm ?.r' PRACTICE. 1037 1§— Several caii«iic«»— ^iii;;l<> stfti«l:ivit. Where the same rule is to be moved for in several causes, the motion may be made on a single affidavit entitled ill all the causes. Brown v. Trcnholiii, 2, All. 515. , l9-.4ttoi'aey. Some reason should be given for striking an attorney off the roll even on his own application. Kx parte Mc- Cnlhj, 1 Kerr 521. •iO— Cost§— Dcprivia^JT plaiatiff— Derault ca<>i<>. Where the defendant suffers damages to be assessed ;:iid tinal judgment signed for a debt over 4*5, the Court will not entertain a motion to deprive the plaintiff of costs, on tlir ground that a payment had been made before action brought whereby the debt was reduced below i'"). lUmd V. Morse, '2 Kerr (524. 'il— Attoi'ncy— T4» |>:ty over procvcdK of jii«1g:aieal. The Court willnot, on summary application, compel iiii attorney to pay over the proceeds of a judgment to a person claiming as assignee, unless his right is clear, Mumtij V, Johnston, 1 All. 097. 'i'i-Bnil. Bail ("iirmot plead to an action on recognizance, a re- ference of the original suit to arbitration, — they should apply to have an exoneretur entered on the bail piece. Shfirp v. Gonnell, 3 Kerr 125. n Entitled to have exoneretur entered when vari- ance between affidavit and cause of action. See Bail 12. 4I-Baii— After pIcatliuK— Affidavit. Bail cannot, after pleading that no ca. sti. duly issued acjainst the princijial, and while that plea stands, appl}'' to tliu Court to set aside the proceedings for irregularity, on the ground that the execution did not remain in the Sheriff's ollice four days. Fulton v. Andrews, 2 All. 359. After failure of such an application, a motion to with- draw the plea and set aside the execution f^" the same irregularity, was refused. Ibid. — In an application to discharge the bail in a I'-: ■ M . 1038 PRACTICE. suit, on the ground of delay in the plaintiff's proceedings, it must be sworn that the application is made on behalf of the bail. Ritchie v. Porter, 2 All. 360. ** Qiuei'e, ^heihei it is too late for bail to object to the sufficiency of an affidavit, after the time for putting m bail has expired, if they did not see it before that time. Simonds v. Siinonds. 2 All. 468. 27— Equitable jiiri^tdiction -To set aside receipt. The Court will not entertain an application to its equit- able jurisdiction, by an assignee of a chose in action, to set aside as fraudulent a mere matter of evidence, such as a receipt, which has not been pleaded to the action. Gossx. Messinett, 3 Kerr 226. a§- Time— Service of notice. In cases of motion requiring fourteen days' notice before the term at which the motion is intended to be made, the day of service is considered as one of the days. Janis v. Peck, 3 Kerr 507. ■..eavc to uitlidrnw plea— Discoiitiniiiiig: replevin suit. See Eeplevin. teO— Attaciinient lor costs in Equity— Application hy sureties. Where action is brought in Supreme Court on a limit bond given by a prisoner in custody on an attachment for costs in Equity, application lor relief by the ir-ureties must be made to the Supreme Court. Burtlctt v. Glasgow, Hil. T. 1871. 39— Interlocutory Judgment— IVIotion to set aside- Keu^iilarity. The plaintiff having demurred to the defendant's plea, delivered a copy of his demurrer to the defend ants attor- ney, received from him a joinder in demurrer with objec- tions, and gave him notice of setting down the case for argument, whereupon the demurrer book of the defendant was made up and delivered ; but the plaintiff, discovering that the defendant's papers in the cause were not on file, signed interlocutory judgment ; subsequent to which ih attorney of the defendant who had been in default for iion- PRACTICE. 1039 [f's proceedings, ide on behalf of : bail to object to le for putting ui sfore that time. c nMrcipt. ation to its equit- B in action, to set lence, such as a action. Gossw ays' notice before t to be made, the ) days. Jarcis v. II g re pi (!V ill !«uil- Ai>|>li<'»(ioH l>> Court on a limit Q attachment for the i-ureties must V. Glasgow, H(7. to set asidc- defendant's plea, iofeudanfb attoi- Lirrer with objoc- )wn the case for of the defendant intiff, disfovering were not on lilt. .ent to Nvbich tlii' .n default for non- payment of Court fees, purged his contempt by paying up the fees, and procured a Judge's order to the clerk to re- ceive his papers. On motion to set aside the interlocutory judgment for irregularity, so signed after the several steps taken. Held, That the signing of the interlocutory judg- ment was regular, the contempt of the attorney being no excuse for the wrong. Held also, per Street, J., that the subsequent steps did not amount to a waiver of the irregu- larity, the plaintiff having been in the dark as to the cir- cumstances afterwards discovered. Partelow v. Smith, 3 Km 349. 31-Dclay. Where a defendant delayed until the last day of the third term before making application to set aside an inter- locutory judgment, and prior to the application the inter- mediate steps had been taken, of which his attorney had notice respectively, and upon which final judgment waa signed. Held, That the application was too late either to set aside the interlocutory judgment and subsequent pro- ceedings for irregularity, or to let the defendant in upon the merits. Kelly v. Wilson, 3 Kerr 471. Ii'2-To t^ct aside award— Time* A motion to set aside an award under a submission, with a clause of consent to make it a rule of Court, must be made before the last day of the term next after the award is pubUshed. Nugent v. Brown, 2 All. 621. 33-t'flrtiorari. On application to a Judge at Chambers for a certiorari, tilers should be a summons or rule nisi in the first insta'ice. Ex parte Howell, 1 All. 684. 34-4ppiicatioii to eotirt pending application to Where a defendant has applied to a Judge at Chambers to set aside an arrest on the ground that there is no dc t'fi""/ clause in the writ, he may afterwards, and while that application is pending, apply to the Court to rescind a Judge's order for bail in the case, on the ground that the artidavit to hold to bail is defective (Fisher, J., dissentieate) ^(ms V. Cole, Hil. T. 1871. xiV i< B»ni i'^ilii mm ! ., 1040 s/s- PEACTICE. -Quo IrVai'i'aiito— Application for— Witlidiawiiig facts. Where a party applying for a Quo IVarmnto improperly withheld material facts, which ought to have been stated in his affidavit, the rule was discharged with costs. Ex parte Gilbert, 1 Piuj. 231. 36— l¥Hi'raiit of Attorney— Licavo to enter up. On motion in banc for leave to enter up judgment on an old warrant of attorney, it must be shewn that the defend- ant was alive within the term at which the motion is made. Wiley V. TIaslijJ, 1 Kerr 1. 37— Entry of ITlofion. A motion for Judgment absolute as in case of a non- suit for not proceeding to trial pursuant to a peremptory undertaking should not be entered on the ^lotion paper, and if entered, the cost occasioned thereby will not be allowed. O'ltcijan v. Robinson, 3 Kerr 224. 3S— Deninrrer booicii not delivered -IVon (*oiii|>linii€e witii rnles of court— Application to restore casr to special paper after .iud|;^nient ilelivercd- Kefnsal. Where judgment had been given for the plaintiff on de- murrer for failure of the defendant to deliver demurrer books as required by the rules of Court, the majority of the Court (Fisher J. diss) refused to allow the cause to be re-entered on the special paper for argument on demurrer, Jaltljough the defendant's Counsel made affidavit that he thought the books had been forwarded to his agent for delivery ; that matters that could not well be neglected had kept him from attending court during the term in which judgment was given ; that he had obtained the consent of the plaintiff's Attorney to the cause standing over; aud that the plaintiff's Attorney was willing to allow the cause to be re-entered it the court would permit. Anderson v. Faivcett, 2 P. <(!• B. 374. 39 Verdict— Iflotion to increase, vihere previous jiids- nieiit ifiven in case— Pa«'ty tlissatisfied should appeal. Where the Court had previously given judgment in the ii ;;■;]- V-i HH 1 PRACTICE. 1041 r— l¥Uli«1i'awiiig; 'rranto improperly have been stated with costs. Kx liter up. up judgment on an n that the defend- he motion is made. s in case of a noii- ,nt to !i peremptory the Motion paper, hereby will not be 224. -Moit complin"*''' on to restore cat^f iiciit delivcrcd- f the plaintiff on de- deUver demurrer Lit, the majority of low the cause to be 'ument on demurrer, fde affidavit that he id to his agent for •ell be neglected had the term iu which jned the consent of standing over; aud igto allow the cause lermit. Anderson v. Iicre previous jinlg- lilissntisfied showld iven judgment in the case, they refused motion to increase the verdict, stating that if the party moving was advised that the judgment was erroneous he should appeal. Banf/or Ins. Co. v. }kLe(»1, 2 P. (£• B. 336. 10— Rule iig[ain$>>t Slierifl- Entry on motion papei'. A rule for a Sheriflf to pay over money in hia hands, cannot be entered on the motion paper and moved on four- teen days notice. Ex parte Graham, 6 All. 209. i|otiou«i to Amend. See Amendment. notlou<>i lo set aside Assessment. Sec Judgment by default. 11— i^Iotion tor.lndgmcnt as in case of non-suit— Four- teen days notice must be given. The Court refused to hear an application for a rule nisi for judgment as in case of a non-suit, without the fourteen days notice of motion being previously given aud cause entered on the motion paper. James v. McLeod, 2 P. d- B. 300. notions for judv^ment as in case of iion suit — To en- large peremptory un«1ertai within wiiicii motion to set aside au'ard under submission. See Arbitration IV. 13, 14, 15. ^oil-suit at parlyS request. See Non-suit. ** Attachment under 37 Vic. cap. 7, (Consol. Stat. cap. 42.) Motion to set same aside must be made before aiipearance. Robin v. Taylor 1 P. & B. 208. The Court is unwiiiing^ to «1ecide questions of import- ance upon summary application. See Bankrupt 5. VI. Staving amd se'jting aside Proceedings, when Granted OR Eefused. l-Release. Tlie Court will not set aside a release given by a sur- ';!' If I 1 1042 PEACTICE. viving plaintiff, on the ground of fraud on the releasor, be- cause that question may be tried between the parties. Eeed v Wilson, 1 Kerr 365. * Where a release is pleaded pain darrein continu- ance, the plaintiff cannot apply at the same time to set aside both the plea and the release — the first as being too late, and the latter as being fraudulent. McLcllan v. Cniigle, 4 All. 237. execution— IVo return of, first issued. Sec Execution III. 2. 3— Execution — Not warranted by judgment. An execution requiring the Sheriff to take the defend- ant, to satisfy the sum of iil50, which the plaintiff liad re- covered against him for his debt, which he had sustainoc' as well on the occasion of the non-performance of certain jyromises and undertakings lately made by the defendant to the plaintiff, as for his costs and charges, etc., is not war- ranted by a judgment in debt on a bond and warrant of attorney, and will be set aside. Willard v. Lodge, 2 .1//. 160. 4— Bond and warrant of attorney- Absence ol attor- ney. It is no ground for setting aside a bond and -warrant of attorney, tliat they were executed by the defendant, with- out the presence of an attorney, in pursuance of a promise and arrangement made while he was under arrest, lie hav- ing been actually discharged from the arrest before execut- ing them, and not being in the gaol or other place of ccp.- linement. Scollar v Grass, 1 Kerr 627. 5— Jutlgnient— Fraud. The plaintiff and defendant referred certain disputes to arbitration, and signed mutual promissory notes for i"20, on the same piece of paper, with a condition undorwritten that if the award was performed the notes should be void : an award was made in favor of the plaintiff for t'l 98., which the defendant refused to pay, whereupon the plain- tiff tore off the lower part of the papei containing his note PRACTICE. 1043 to the defendant, and the condition, and brought an action against the defendant on the note, in which judgment was signed for the whole amount of the note. The Court set the judgment aside for fraud. McLoon v.LotccU, C. Ms. G7. 0-Jiid;;iuciit— Arrest ol» It is not a good ground for arrest of judgment that the ileclaration is entitled generally of a term, and the cause of action appears to have accrued on a subsequent day in the term. JVilliston v Pierce, 2 All. 162. 7-lii$»olveiit debtor—Order. If an order oi discharge is irregularly obtained it si ould 1)6 set aside before any proceedings are taken against the debtor. Doe v Holmes, 4 All. 557. l-^'oii-|»ro— Delay in applicutioii to set asi«l«'. A judgment of non pros, irregularly signed, will not be set aside on summary motion, where there is an unreason- able delay in coming to the Court for that purpose. If the jttdgmeut in such case be erroneous, the plaintiff must resort to his writ of error coram nobis. Ledden v. Rogers, 2/\:ot326. 9 The Court refused to set aside a judgment of 'It'll \mH, upon a summary application, for irregularity, where ten months had expired before any application for that purpose was made, and the plaintiff's attorney had fftly after the judgment been served with a copy of the of costs, and an execution for the costs had been exe- ■:' . le(i sDme time before the last Trinity Term, the delay i^ 'A\:\)< ing satisfactorily accounted for. Louchcster v. Murray, ;,:'^cn- 334. : IO-T\vo writs for the same eaiise of ai-tioii. Two writs for the same cause of Action were simul- taneously issued to different counties, and tlie defendant irrested on both, and bail entered. The plaintiff's attor- »■ itmuediately notified the defendant's attorney that were was but one cause of action, and that he intended to j tiiscoiitinue on the second writ: only one declaration was i-i MK r I ' • t!u' U ; r l\:\ i H 1044 PEACTICE. filed. Held, That the defendant could not sign juflgment of nonpros in the other suit. Johnston v. Bmnsfidd, Bcr, 7o. II The Bail piece must be on file before judgment of non pros can be signed in a bailable action, pursuant t > rule of Hilary- Term, 2 Wm. lY. Wiijijins v. Dihhlcj!, Trin. T. 1872. |.j Judgment oinonpros can not be signed until the defendant has filed an appearance; notice of appearance is not sufficient, dishing v. Gordon, Mich. T. 1872. 13— Iiiqiii<«itioii— Oiviiig: v«r«1ict for iit — No pt'i-Moiial f^ervire- Liiiiatic. Where a suit had been commenced and judgment bv default signed against a person of unsound mind whili he was confined in a lunatic asylum, and the writ had not been served personally on him, and no notice of executing' the writ of inquiry given ; the Court set aside the inter- locutory judgment and subsequent proceedings. Sdmhl' V. Godsoe, 1 All. 441. 16 ^ Where a writ was not served personally, awl no Judj?;e's order was obtained to perfect the service ac- cording to the Act 7 Wm. IV, cap. 14, sec. 1, and the de- fendant denied any knowledge of the suit, a judgment aud , T^:; PRACTICE. 1045 pc'iv^onal scivifo id and jiidgineiitbv ansound mind wliili and the writ had not notice of executing' set aside the inter- 'oceedings. 'S'"i('''i'' jrved personally, ami erfect the service acj 4, sec. 1, andthede-j mit, a judgment aud execution were set aside for irregularity, though the defend- ant's aliSdavit of ignorance of the suit was contradicted hy liis admission since his arrest. Jamoa v. Dupra, 1 All. 506. ir Interlocutory judgment signed for want of a plea, set aside on affidavit of merits and payment of costs ; though a demand of plea had heen sent to a student in theolHce of the defendant's attorney, and was admitted to have been received in his office before the judgment was signed. Esteij v. Neiucomh, Bcr. 343. Ejcctiiieiit— letting: aside jiidgiiK^iii by dcf'niilt. Sec Ejectment IV. 4. IM-Cor|ioriuioii—ISiiiiiinoiis—Dcclni'alioii— Variance. Where a summons issued against a corporation under the Act 12 Vic. cap. 39, sec. 16, described the cause of action to be " debt," and the declaration was in covenant, an interlocutory judgment signed thereon was set aside for irregularity. Gilmorc v. The Liveriwol and London .hsunmce Co., Hil. T. 1871. Setting: a§id(; aftci' execution of wi-it <»l inquiry See Judgment by Default. Oilidi- caii!Kes. See do. I»-Vei'di«;t— l\'olice of trial not given— C'ounM'l. Where no notice of trial was given by plaintiff, and a counsel who had been retained for defendant in a former trial in ignorance of this fact appeared without authority, defendant being absent, and defended, a verdict for the plaintiff was set aside. Doherty v. Deslhi^ny, 1 Han. 404. Where on a writ of inquiry before a Sheriff's jury to assess damages for detention of liquor from September 1867 till May following, the plaintiff gave evidence of transactions relative to the liquor prior to September, and fue expense of warehousing and insurance on the liquor, and legal expenses, and no rule was laid down by the «^i i Hi; i r (,: ' Jf ' ili ' If ■■ m ]',{!■ 1 ■■■- it-: i : ,1 Eir fif . 1 ^ 1 - 1 fllJSt'^'' ' n 1 ■ i '■ 1 ■i^:' i: fjM««^™^^2wj2jif . i I iti 1046 PRACTICE Sheriff for the guidance of the jury as to the measure of damages, the Court set aside the assessment, being unal)lf to t\8certain by the evidence how the jury had arrived at the amount. Kinnair v. Rnlnnsnn, 2 TLui. 73. "11 It is no ground for setting aside the assessment on a writ of inquiry of damages under the Statutes 8 and 9 Wm. 111. cap. 11, executed at the assizes,that the Sheriff' had not returned any panel on the writ, and the damaps have been assessed by the jury summoned to try the issu ,- at the assizes. UlK-eler v. Gove, 1 Kerr 580. •24 On judgment by default against three defenil- ants jointly, the attendance of one of them at the execution of the writ of inquiry is not a waiver of an irregularity in the previous proceeding against a defendant who did not attend ; and the damages being joint, the inquiiition was set aside. Mcdonald \. Upton, 3 Kerr 565. 33— Bail— Pi-occediiiK^ ag:aiiist. Proceedings against bail were set aside on payment of costs, where notice of trial had been given for the Sittings after Trinity Term 1858, but the cause was not tried in consequence of the defendant's agreement to give a confes- sion, and the confession, though dated 1st June, 1858, was not given till October, 1859, when judgment was signed, Raymond v. McMackin, 4 All. 524. '24 After proceedings taken against the two bail upon a recognizance, to which they have jointly pleaded three several pleas, the Court refused to sustain a sum- mary motion made on behalf of one of the bail for relicl on grounds inconsistent with two of the pleas, and involv- ing the same point put in issue by the third. O'Connor v. Matt, 2 Kerr 509. »25 When upon a summary writ returnable in Hil- ary Term 1842, special bail was regularly put in and noticf given, but the cause was not entered by the plaintiff in that or the next succeeding term; but an entry was irregularly made in Michaelmas 1842, and final judgment signed in the April following — the Court stayed proceedings subsequeu.lv taken on the recognizance of bail, and ordered an exonere- T PRACTICE. 1047 tur to be entered on the bail piece, without costs. Mul- ioon V. Bcverklge, 2 Keir 532. 20- Exoneretur ordered to be entered on bail last given where defendant arrested in two suits in two counties for saiue cause of action. Johnston v. Briinsfidd, Ber. 78. Affidavit not flle«l in tini4>— Entry dock<>t. Sec Bail 8. •il-JiHlfsment. A judgment after verdict signed before the expiration of the four day rulo is irregular. See Infra VII. 14. >j§ It is not Bufdcient to set aside a judgment for irregularity, that the defendant was not personally served with process, it appearing that the service was accepted by a person who while in the defendant's employ, had author- ity to accept service of process for him, though -at the time of accepting service, he had left the defendant's employ, the defendant not having expressly denied his authority, and not having taken steps to set aside the proceedings promptl}'* after knowledge of the irregularity. Farley v. Philipa, Ber. 347. 'i9-Jii(lgrnieiit— Dcniurrer books— merits. Where the defendant's attorney had by mistake delivered demurrer books to the senior Judges, in consequence of which the plaintiff got judgment without argument, under tile rule of Mich. T. 9 Vic ; the Court refused to set aside the judgment without an affidavit of merits, it appearing that there was an issue in fact to be tried, in which substan- tially the same question was involved as that raised by the demurrer. Collins v. McDonnell, 2 All. 158. itO-Scttl«>nient ol cause— Trial after. Where after notice of trial the plaintiff and defendant settled the suit, but the plaintiff neglected to inform his at- torney who carried the cause down to trial, and obtained a verdict as in an undefended suit, the Court set aside the judgment with costs. Mytton v. Parlee. East. T. 1864. 31— Service— No Judi^e's order — DilendantS knou- ledgfe. Although it is an irregularity to proceed in a suit where pi hi ■ w I'll kill ii !t' ill 1048 PRACTICE. tlio Burvico of process is not personal, without having ob- tained a Judge's order to perfect the service, yet where the defendant wat -\vare that the suit was goin£» on, and after filial judgment, gave security for the amount, payable at a future day ; the Court refused to set aside the judgment. (y Regan v. licnymonnt, 1 Kerr 167. Sit Where process has come to the defendant's knowledge, the Court refused to set aside a judgment for irregularity, though there was no Judge's order to perfect the service of the writ. O'Leary v. Orahatn, 5 All. 105. 3;i— Ju«lKiii(>iit and execution. Plaintiff and defendant referred certain disputes to ar- bitration, and signed mutual promissory notes for i''20. written on the same paper, with a condition underwritten, that if the award was performed the notes should be void ; an award was made in favour of the plaintiff for ^1 9s. Od, which the defendant refused to pay ; whereupon tl: plaintiff tore oft' the lower part of the paper, containing h'b note in favour of the defendant and the condition, ari' brought an action against the defendant on the note, and signed judgment by dofault, and issued execution for the whole amount of the note and costs. After the action was brought, the defendant had offered to pay the amount ot the award and the costs of the suit on the note. The Court set aside the judgment and execution with costs. McLoon V. Lowell, C. Ms. 1827. 34— Iiilorination— JiKlgment. Judgment was arrested on an information where the offence was not sufficiently alleged. Attorney-Genend \. 250 barrels of Fish, Ber. 419. 33— Execution upon iudgment— Trial by i>i'ovi!«o. An action of trespass qu. cl. Jr. was instituted in the name of W. by persons to whom W. had agreed to sell the land. W. did not appear to have expressly authorized the i action, but he had received the purchase money, althougl) he had not executed a conveyance, and had deUvered the title deeds of the land to the attorney of the vendees, ^\ii ' was also the plaintiff's attorney on the record, before the I 1 PRACTICE. 1049 lout having o\)- B, yet wliere tk itT on, and after int, payable at a e the judgment. the defendant's e a judgment for 3 order to perfect am, 5 All 105. ,in disputes to ar- ry notes for .i:'20, tion underwritten, B8 should be void ; .ntiff for^l93.0d., J- vvliereuyon tV iper, containing V.u the condition, av.'} it on the note, and A execution for the fter the action was \niy the amount of oil the note. The ecution with costs. n-mation where tbe Attorney-GenemU. las instituted in tlie ad agreed to selti;^' lessly authorized tk Ise money, althouf Qd had delivered tk of the vendees, 'wk 'Ue record, before tk ! commencement of the action. The cause had been twice taken down to trial by the plaintifif s attorney, but remained untried, when at a third assizes the defendant gave notice of trial by proviso, and the plaintiff not appearing when the cause was called on was non-suited, and the defendant had since taxed his costs and signed judgment. The plain- tiff had seen this bill of costs, and promised it should be paid. Under these circustances the Court refused to set aside and execution and levy made thereon on W. for the costs. Wetmore v. Reed, 2 Kerr 430. L. and G. appeared as attorneys of the defendant on the record ; the notice of trial by proviso had been by L. alone. Held, That the plaintiff was too late to take ad- vantage of the irregularity, if such, after the taxation of costs, of which due notice had been given, and judgment had been signed. Und. 36-Moininal pinintill— A«;tioii, Where application was made by the defendant to set aside proceedings because the action was brought in the name of the plaintiff for the benefit of a thu'd person, with- out the plaintiff's authority. The Court refused to inter- fere without an affidavit of the nominal plaintiff. Qlen- cms V. Wark, 6 All. 201. 3T-Jiidgiiiciit of iioii-Miiit— Replevin. A judgment of non-suit in replevin inadvertently given was set aside, notwithstanding the omission of plaintiff's counsel to take the objection on motion. McGeeh>iu v. UaU, 3 All. 507. 3§-f;apin««— Debt instead of trespass. The proceedings in a cause will not be set aside for ir- regularity because the capias ad respondendum was to answer the plaintiff in a plea of debt instead of trespass. Campbell v. Mossop, C. Ms. 154. 39- Second action. Proceedings will be stayed until costs of prior action paid, where conduct negligent or vexatious. See Second Action. 67 npipw 1050 PKACTICE. 40— Piii. Where a new trial has been granted in order that the jm-v might find whether actual payments had been made, agreeably to certain receipts produced in evidence on a former trial between the parties ; if the defendant defeat that object by pleading a release jfnis darrein contiuiiancc, the Court will set aside the plea with costs ; but has no authority to order the release to be given up to be can- celled. Cross V. MesHuictt, 1 ^4//. 104. 40a A plea 2>/fts darreiu continuance regularly pleaded and verified by affidavit, cannot be set aside as false. If the facts stated in the plea are denied, the plain- tift' should take issue on it. Gilbert v. Graham, 1 Pikj. 202. ** Bill of Exceptions — Setting aside before return to writ of error, hce Bill of Exceptions. i'J— Prcci|M'. Qiuere, Whether proceedings will be set aside for want of a precipe — Entering an appearance is a waiver of the objection. Kirlin v. Baillie, 2 All. 115. 43— Second Ejectiiicnf— Ucfiisal to cntei- into consent rule. Where a second ejectment was brought in coiiaequence of the tenant's refusal to enter into a consent rule contain- ing a proper description of the premises, the Court refused to stay the proceedings until the costs of the first suit were paid. Doe a. Morrice v. Roe, 3 All. 84. 41— Several actions— Same 4>an««4'. Four actions of trespass for taking goods were brought by the same plaintifi' against several defendants, one of which was tried and a rule nisi granted to set aside the verdict, the Court refused to stay the proceedings in the other three actions until the determination of the first suit, though it was sworn that the defences were the same in all the cases, and the defendants believed that they were all brought for taking the same goods. Laivton v. Onty, !] All. 570. I'l— Tryinur cans*; as undefended— No Plea. It is irregular to try a caupe without a formal plea ou PRACTICE. 1051 in order that the 3 had been made, in evidence on a } defendant defeat arrcin continmncet costs ; but lias no given up to be can- itbiuancc regularly lot be set aside as :e denied, the plain- h-aham, 1 Pnil- '-^O'^- ; aside before return iS. >e set aside for want e is a waiver of the icnlci- into consent uglit in couseiiuenct jonsent rule contain- ,8, the Court refused of the first suit weix' 14. goods were brought [ defendants, one of ated to set aside the I proceedings in the lation of the first suit, 1 were the same m all [d that they were all L(m-toii V. Gray, '^ lOut a formal plea ou which issue can be joined ; therefore where a cause was tried as undefe^^^ed, the Court set aside the verdict on ap- plication of the defendant (an attorney) stating that he had not given any plea, and did not consider the cause at issue, for want of particulars which he had demanded, though he had written to the plaintiff's attorney that the plea would be the general issue, — it being doubtful whether lie had received notice of trial. Cameron x. Coniwll, SAIL 898. Writ- ITIi!«iioinei-— Affidavit. See affidavit III. 5. Levy— §45ttiii;; a^itio. See Execution I. 7. 46— ProceilOiido. A writ of procedendo was issued after a habeas corpus to remove the cause was filed, as also common bail, but it appeared that there had been a previous irregularity in the writ of habeas corpus by which the cause had been removed, aud the writ afterwards was amended by the defendant's attorney, who availed himBelf of the writ so improperly amended to defeat the plaintiff's right of action, by refusing to receive a declaration ; both partif having been guilty of irregularity, the Court set aside the writ of procedendo on the condition that the defendant should receive a declaration in the course of the term of which it had been offered to the defendant's attorney. Wilson v. Atkinson, 'i Kerr 343. If-Sii^lX'iitling^ proceeding!!)— Aiiiciidiiient. Pending a writ of error, the Supreme Court may in its discretion allow an application to be made to the Court be- low to amend formal errors on the record, and may suspend judgment in the mean time. Such proceeding allowed where the award of the venire and the day of trial were left Wank on the record of the Court belov;. Kinnear v. (JaUagher, 1 Kerr 424. 18 -Rcilt't from judinHcnt— Infant — Scire facias. Where a judgment by default was entered against two defendants, B. and C. (B. alone being served with process) !!■ ;r 1052 PBACTICE. iu 1834, upon a joint and several promissory note, purport- ing to be signed by B., for himself and also for C, and a scire facias was now issued whereon to found an execution against C. Held, upon a motion supported by affidavits stating that C. at the date of the note was an infant, did not authorize B. to sign the note for him, and that the note was made wholly without his consent or knowledge, That C. was entitled to be relieved against the judgment ; and that neither the fact of the note having been given for a balance due the plaintiff on lumbering transactions in which B. and C. were jointly concerned, nor the fact of C.'s having offered to compromise since coming of age by paying a third of the debt, was sufficient to deprive him of his right to relief. Mitchell v. Aatle, 2 Kerr 86. i§ a— Jii4ig:ineiit— IVon-filing: of i>a|>ei's— Estoppel. After judgment in a case which had been defended, a motion was made to set aside the judgment j^./«. levy, and all other proceedings, on the grounds that there were no papers or documents on the plaintiff's side of the cause on the files of the Court except the judgment roll, which omis- sion had only very lately come to defendant's knowledge ; that he had a good defence on the merits, and that the Ji. fa. differed in amount from the judgment — whereupon a cross application was made to amend the fi. fa. that it might correspond with the judgment. Held, That the de- fendant was estopped, by his proceedings in the action, from taking anvantage of the not filing of the plaintift''s papers, etc., and that the latter might amend the ft. fa. on payment of costs. Held,Q>\80 That the plaintiff's attorney, by his neglect, had forfeited his costs of suit. Lynott v. Sechjc, 1 All. 35. 49— IWoii-re^iideiit— JiidKcN order —.'Vccessity of obttihi- iiiK order. A writ, issued for service beyond the limits of the Pro- vince, under the Act 18 Vie, cap. 25, was served on the de- fendant iu Ireland on the 19th Septemper 1870, requiring him to appear within sixty days. On the 17th November following, the plaintiff filed an entry docket in the cause; PRACTICE. 1063 aud on the 12th December obtained a Judge's order auth- oi'ising him to enter the cause as of Michaelmas Term then last, to enter a rule to plead on filing a declaration, and, in case the defendant did not plead by the first day of Hilary Term, the plaintiff to be at liberty to sign interlocutory judgment, and to proceed according to the ordinary prac- tice, the declaration was filed on the 19th December ; inter- locutory judgment by default was signed on the 8th Feb- ruary 1871 ; and final judgment on the 19fch May. Held, (Fisher and Wetmore, J. J., dubitantibus) That the plain- tilt' had no right to proceed in the cause after service of the writ without a Judge's order ; that the order of 12th De- cember did not relate back to the previous entry of the cause; and that the cause not having been entered in pur- suance of the Judge's order, the interlocutory judgment was a nullity. Mitchell v, Lawiher, 1 Piig. 79. 40— IVecessity of Icgnl proor. In assessing damages under the Act after julgaiant by default, the plaintifif must establish the amount of his debt 01- damages by legal proof. Where the only evidence of tiie debt was an account shewing several sums of money due from the defendant to the plaintiff on various transactions, with an affidavit of the plaintiff that the " account was just and true," — it was held insufficient, and the judgment was set aside. Ihid. •SI— Snpai'ute^ action— Payment of debt and costs- Judgment roll. Separate actions having been brought against three joint and several makers of a promissory note, the defend- ants offered to pay the debt and costs to the plaintiff's at- torney, but, there being a dispute about the amount of costs, a Judge's summons was obtained for the plaintiff's attorney to shew cause why the proceedings should not be stayed on payment of the debt and costs. The summons was served on the plaintiff's attorney at Eichibucto on the 12th December ; the damages were assessed and judgment signed on the following day ; the agent of the plain- tiff's attorney having no notice of the summons. The / J I ' ; ■ I'i i' ) ^N^ ■ mr I'll ^ 1 m I ■'I 1;:: 1064 PRACTICE. Court set aside the judgment, and ordered the luoceedinis in the three suits to bo stayed, on payment of the debt and costs up to the 12th December, — not being satisfied that the judgment rolls had been made up until after the defen- dant had offered to the plaintiff's attorney to pay the amounts due. Mclnerney v. Chandler, 5 All. 430. In ordinary cases, the plaintiff's attorney is not justi- fied in making up the judgment roll, in order to charge the defendant with the costs of it, till the damages arc assessed, IhiiL •'(2— Mew trial oi'deriMl iiiiIonk parly conwont lo n'dnrc verdict— Parly fixing;: ilaiiia^eM iiiiiiMell'— Fompsi- Deleiii«. In replevin for a quantity of deals the Court ordered a new trial unless defendant consented to reduce verdict to the value of eighteen pieces. Defendant elected to reduce, but gave no notice to plaintiff's attorney, and afterwards obtained postea from the clerk of the circuits instructing him to enter as damages an amount proportioned as dam- ages found by the jury in his favour for 314 pieces. A mo' tion being made to set aside postea and sta^," proceedings. If eld. 1. That when a postea has been stayed by a Judge's order, the clerk of the circuits should not deliver it out to either party without a rule of Court or Judge's order, i. That the defendant had no right to fix the damages him- self, luit should have applied to the Court to ascertain amount. 3. That he was entitled to have verdict entered in his favour for nominal damages. Steeiws v. ]Vihoii,'2Piiii. 492. Diiiicoiiliiiiiaiicc -Side bar rule obtained liy plaiiilill- SettiiiH- •i«ame a»>ide. See Discontinuance. Jlarris v, Mnrter. >f 3— lf<-i»leviii -f!iiii4>riir interested — Setting aside writ. PJaintiff us assignee of the estate of H., an Insolvent, brought replevin, the writ being directed to and served by the sheriff who was also an inspector of the estate. //fW, That the sberitf as inspector was interested in the suit and the writ of re[deviu was set aside. I'ninceiitlier Ass. dr. v. Nevers, 2 Puy. 524. -T PIUCTICE. 1055 IKMl l»J |>l"«"«"" jl— Inquisition— €roMsc\Riiiinatioii— Rcf II f^al to allow. Where in an enquiry i)efore a sheriff under a writ >hi prop proh the defendant's counsel was allowed to put a paper in evidence, without the plaintiff's counsel heinf^ pre- viously permitted to cross examine upon it, the inquisition was set aside. TLiniiifjtoii v. Connier, 2 Pii/i. 450. .I.S-Siayiui; |>roceitK of foi'iiici- action toi' Maine cause paid —When in(»tion will not be granted. Whore judgment quasi nonsuit was signed against plaintiffs for not proceeding to trial pursuant to notice, and be afterwards hrought a second action for the same cause, it appearing that the plaintiff's conduct was not vexatious or negligent, but that he was proventci* .rom proceeding to trial under circumstances which would, if shewn to the Court, have been sutlicient to have prevented the granting of the motion for nonsuit, the Court refused an applica- tion to stay proceedings in the second action until payment of the costs of the former suit. Wetniora v. Bdxtcr, :3 Pu'j. 235. ')6-^i(>ttin|Uf asicic service or siiininons— Application i»y wife of «lefendant— Delay. Judgment was signed against the defendant, in August, 1876, and execution issued, under which his property was levied on and advertised for sale on the lOth February, 1877. In Hilary Term, 1877, application was made by the defendant's wife to set aside the judgment, and execu- tion, and all previous proceedings, on the ground that there liad been no service of tho process, the defendant being out of the Province at the time, and, never having roturni'd or bad any notice of the suit. Ifdd, That if the a[)plication could he made by the wife, it must be made within a rea- sonable time after she had knowledge of the proceedings, and that this application was too late. Qiuere, Whether a married woman can apply to set aside proceedings in a suit ngiiinst her husband, without sb.owing that the appli- cation is made by his authority ? Biirchell v. Pcir, 1 A<('/^. 151. ill 1066 PEACTICE. is: ': 3!- ' lis HI: l^^fN \i:m ■; 57— Delay in applyiiiy: to set aside bail bon«l— Waiver — Judire^s order. Defendant was arrested and gave bail on November 14th, 1876, in an action in the County Court, and an at- taching order was issued at the same time, under the Act 38 Vic. cap. 5. Plaintiff neglected to file the affidavit to hold to bail, but defendant made no application to set aside bail bond until the 3rd June following. On April 15th, he obtained a summons calling on plaintiff to shew cause why the Attaching Order should not be set aside, on the ground that such order could not issue in a suit commenced by capias, and where defendant had been arrested ; and while that question was pending before the Judge, he applied to set aside the bail bond. The County Court Judge refused the application. Held, on appeal, that the Judge was right, as the application to set aside the Attaching Order was a waiver of any objection to the bail bond, even if it was not waived by the previous delay. Held also. That in a matter of this kind, where it did not appear that the appellant had suffered any wrong by the affidavit not being on file, and the Judge had ordered it to be filed, the Court should not be disposed to interfere with his order. Leui^ v. Weldon, 2 P. d- B. 145. I epicvin o will not stay proceedings in action upon, nniess under very special circuni* stances. See Bond 6. Betts v. McGowan. .1§-Misnonier— Initials— Writ. Where plaintiff is described in a writ by the initial letter of his Christian name, the defendant's proper remedy is to apply to a Judge to compel him to amend, and the writ will not be set aside for irregularity on this ground. McMonagle v. Grant, 3 Pug. 231. Semhle, That a consonant may be the Christian name of a party. Ibid. 59 A party may be sued under a name he is com* monly known by though it is not his proper name. D«"''' Bon^ V. Ring, 2 Pug. 5. PRACTICE. 1017 ^ 1 bond— Waiver the Clu-istian name ier a name he is com* i 60-Misi Prills order. Before an order at nisi prim can be set aside it must be made a rule of Court. Smith v. Gerotv, 2 Pu(j. 425. 61— Amending tlAcate — IVolice not a proceeding in Courts motion refused. See Action at Law — Notice. Wetinore v. Harding. Jndpncnt signed— Breach of agreement concerning suit. See Attorney, V. 7. Service of writ In replevin Sheriff interested as In- spector of estate. See Sheriff 31. Crown servant— Action ot trespass. Affidavit of alleged trespass committed by defendant as Ii ]i' ' >^HR^H il, ^ Ii: WK 1058 PRACTICE. employee of Government. Summary application to stay proceedings refused. Defendant ought to resist action ])y plea in ordinary way. Sec Action at Law IX. 30. Milrcr v. Brydges. VII. Irregularity. I— Sp(>ciiil. jury— §trikiiiff— Trial by comiiioiijiiry. The plaintiff obtained a rule for a special jury, which was struck, and reduced to twenty-four by the defendant at the request of the plaintiff's attorney. The plaintiff's attorney then took the list to examine it, and kept it with- out making any objection, but afterwards, without notice of his intention to abandon the special jury, tried the cause by the common jury as undefended, the defendant refusing to appear. Held, That the trial was irregular. Bradhimi V. Baillie, 1 .1/^ 427. Qtuere, Whether a party, after obtaining a rule for a special jury, has a right to abandon it ? Ibid. *2—Sv!t'vir.e of rulv nisi, ■ Irregularity waived by entering cause on special paiM and appearing bye ounsel. Barlow v. O'lJoiincll, 1 All. 433. 3 Taxation of costs on Good Friday not irregular. Oilman; v. Gilbert, 2 All. 50. 3 (t— Afli<1avit to liolU to bail— Filing^— Time— Waiver. It is in general sufficient that affidavits to hold to bail be filed within thirty days after the terra in which the writ is returnable, and as the defendant cannot object to the want of the affidavit being on tile until he has entered special bail, such entry is not a waiver of the omission to file the afiidavic, but pleading to the action afti^r a term has intervened is a waiver as the defendant might have searched the office and informed himself of the irregularity. If a defendant being aware that the plaintiff has not filed the entry docket or declaration in a cause, appears at the trial and defends the action, he thereby waives the previous irregularity in the plaintiff's proceedings. Read v. McLclhm, 1 All. 3. PKACTICE. 1059 III moil Jury* _)ecial jury, which t by the defendant y. The plaintiff's , and kept it with- els, without notice ury, tried the cause defendant refusing i-egular. Bnulhmi -Time— Waiver. tvits to hold to bail n in which the writ lannot object to tlie itil he has entered of the omission to action after a term indant might have f of the irregularity, laintiff has not filed ise, appears at tlio waives the previous ,. Rcadv.McLclUn, 4-4lfl4l»vit to hold to bnil. Irregularity waived by pleading to the action. McPhelim \: Larson, 1 All. 71. {-Bail. Qmere, Whether an application for relief under 1 Rev. Stat. cap. 124, estops bail from applying to defend on the merits? liii^pey v. Austin, 4 All. 77. Di«li'CN»<— Bi-cakiiig Door. See Distress. 6-WniTaiitol attorney —Absence of attorney. Where a defendant is substantially in custody at the suit of plaintiff, a bond and warrant of attorney executed to the plaintiff in the absence of an attorney, are irregular. The defendant was within the gaol, and had not actually been discharged therefrom, although he was told he might leave it. Lcddeii v. Hanson, 1 Kcrv 90. )-Veii«1itioiii Exponas. Irregularity in issuing will not affect a purchaser under t)herift''s deed. See Doe d. Hazen v. llazen, 3 All. 87. «-Joiiit debtors— Service— Venire. In an action f gainst joint debtors, where all are served with process, and the plaintiff proceeds under the Act 26 Geo. Ill, cap. 24, it is irregular in making up the record to allege that the defendants not served sat/ nothimi in bar etc., as in a judgment by default; nor should the award of the mm be to assess damages against such defendants, as well as to try the issue joined between the plaintiff and a de- fendant who has pleaded. McIjaHghlin v. Ratchford, 3 S-Eiitiy of Canse-Baii. See Supra VI. 25. I iO-liiioiiociitory jiidg^inent— Nigniiipf. An interlocutory judgment signed by the plaintiff, after Nemand of plea, where the defendant had liled the general issue but neglected to give a copy of it to the plaintiff's attorney, was held to be irregular. Locku-ood v. Broicn, 2 W82. If 1 1 , miiiii ^-i ^1 .'j.^ 1(H)0 PRACTICE. 11 The plaintiff liaviDg demurred to the defeiulant's plea, delivered a copy of his demurrer to the defendant's attorney, received from him a joinder in demurrer with ob- jections, and gave him notice of setting down the case for argument, whereupon the demurrer book of the defendant was made up and delivered ; but the plaintiff, discovering that the defendant's papers in the cause were not on file, signed interlocutory judgment ; subsequent to which the attorney of the defendant who had been in default for non- payment of Court fees, purged his contempt by paying up the fees, and procured a Judge's order to the clerk ti receive j his papers. On motion to set aside the interlocutory judg ment for irregularity, so signed after the several steps] taken — Held, That the signing of the interlocutory judg- ment was regular, the contempt of the attorney being noj excuse for the wrong. Held also, per Street, J., That the subsequent steps did not amount to a waiver of the irregu- larity, the plaintiff having been in the dark as to the cir- cumstances afterwards discovered. Partelow v. Smith, 3] Kerr 349. 12— Judgment b}' default— Common R>nil. A judgment by default, signed by the plaintiff before j common bail is filed, or appearance entered for the defeiul- ant, is irregular, and such irregularity will not be consider-! ed waived by the mere delivery of a notice of appeaiancej by an attorney for the defendant, if the plaintiff's attorney,! after receiving such notice, has neglected to deliver a copyj of declaration according to the practice of the Court. -M"! stall V. Cornwall, 1 Kerr 197. 13— Judgment— Signing— Time. It is no ground for setting aside a judgment, entered up on a verdict recovered at the assizes, for irregularityJ that it was signed on the same day that the rule for judg-J ment is actually entered ; more than four days haviu^ elapsed since the commencement of the term. Thisruleil considered as entered on the first day of tlij term, though not actually done until afterwards. FM' Piatt, 1 Kerr 656. PRACTICE. 1061 jntered for the defend- ;y will not be consider-! notice of appearancej lie plaintiff's attorney| icted to deliver a copv^ ce of the Court. UA U. A judgment having been signed on 16th Octo- ber, the rule nisi being entered on 13th, was set aside as irregular, the four days' rule not having expired. Hatton T, Flnhcrty, Ber. 129. |}-Deiiiniid of pica. The rules of Easter Term 25 Geo. III,reiiuire, in all cases, a declaration to be filed ; therefore, if the plaintiff demands a plea twenty days after delivery of a copy of declaration to tbe defendant's attorney, but before twenty days after tiling the declaration have expired, such demand is irregu- lar. Passvtore v. Turner, G. Ms. 103. l6-R<><'OKHi'/'nncc roll— Bnil piece. It is irregular to make up and file a recognizance roll until the special bail piece be on file to warrant it. 0' Con- won. Mott, 2 Kerr 609. I}-Filiii{jr pica— Irrcgulnrit}— Wiiivci'— KnowlcilKC ol' irrcKHlarity. A plea should be filed as well as served, and the Com- mon Law Procedure Act (Consol. 8tat. cap. 37) does not alter the practice in that respect. The failure to file a plea where it has been served on the plaintiff's attorney is an irregularity and not a nullity, and may be wnivocl. The ttst of the defendant's knowledge of an irregularity is not when he knows of it, but when he has first the means of knowing of it. Dever v. Wiley. 1 P. & B. 507. Cjcdiiioiit for lion payment ol rent— Rule nisi. Misapprehension on part of leesor of plaintiff as to nature of rule obtained on his own application — Judgment irregularly signed. See Ejectment IV. 7. Doe et Ste2)heii>i v. True. Bailable writ- No cause oi action •stated in ac eliain clause an irregularity. Scf; Supra IV. 1. Affidavits used in moving tor rule nisi tor niandaniiis are irregular, ifintitled in a cause. See Mandamus. See Affidavit II. 3. I Eiecutioii— Part levy— Return— Non* recital. See Execution III. 2. T;< }; m I' ' ■ ■' m ! 1062 PRACTICE. i Kci'vicc ol |>i'o«'(!MH. See Supra IN'. l%o p«^rM»iiiil*«<'i'vi4>4>iioi'.lii«lKo% order. See Supra VI. 531, 32. AttoriK'y^M iinin<> on rvroi'd. Irregular for more than one attorney's name to a[)peai' on record. Sec Oiliiiore v. Ball, 1 Keir 94. 'I'ryiiiK; riliiMi' without ioi'inal |>len on which iNMipraii h4vioiii<>«i, in iiTCKiilHi'. See Supra V'l. 4;"). ^ettiiiK ii««i |»i'o«;ect1iiiK« foi* iri'e(;iti»i'it.v. See Supra VI. VIII. Rules. 1— Cnsiiitl t'jcetor. A rule nisi for judgment against the casual ejector need not state the name of the tenant, nor the number of days allowed hira to appear. Doe d. Taylor v. lloe, 1 All. 1, !Sl— ClHiiiiing^ to dereiid as iniidiord. If the relation of landlord and tenant does not clearly exist, there should be a summons or a rule nisi, before a person claiming as landlord can be allowed |to defend an action of ejectment in that character. Doe d. Fauls v. Fen, 1 All, 585, 633. 3 Rule for judgment considered as entered on the tirst day of term, though not actually done until afterward^ Frink v. Piatt, 1 Kerr 666. 4— Oi'dci- of Nisi Prltis. There must be a motion in Court to make an order of nisi prias a rule of Court. Underwood v. McHeury, 2 All. 94. 3— Rule for body. A rule for sheriflf to bring in the body of the defendant may be taken out in term without motion in Court. Port' / Y. Burns, 1 All. 106. Quare, If the usual rule for body be entered in tin- wliit'li iHMiiv riiii PRACTICE. 1068 ilocket agreeably to the practice, it may not be taken out in vacation. Ibid. ft-rostM— i'VIot'iiiK rule with «>ONt8. A rule dischargeable without costs, il moved with costH ffill be discharged with costs. Porter v. IhtrnH, 1 All. 106. 7 If a rule for setting aside proceedings with coats is discharged on shewing cause, the costs of opposing it do not follow as of course. The successful party should apply for costs at the time of discharging the rule. Kelly V, Wilson, 1 All. 19^. % Where a rule nisi for a certiorai to remove a con- viction is discharged, the successful party is not entitled to the costs of opposing the rule. Ex pa.te Daley, 1 All. 435. It Where a new trial has been granted on payment of costs, and they have been taxed and demanded of the at- torney who obtained the rule who was informed that unless they were paid an application would be made to discharge the rule. The Court granted a rule for that purpose abso- lute, unless the costs were paid in ten days after service. Stribner v McLaiicihl'in, 1 All. 440. See Further — Costs. IU-Co»«iN— Atlacliinent— Reqtii^iites. liefusal to pay costs taxed upon an agreement for con- sent rule— the rule must be drawn up before motion for attachment. Doc v. King, 3 Kerr 178. II To enable party to obtain rule for attachment for non-payment of costs, the costs should be taxed after consent rule is taken out. Doe v. King 3 Kerr 296. I'i Rule for attachment for non-performance of award, the award must be before the Court. Marks v. ^liirks, 3 Kerr 486. I3-Deinandiiig coints. Copy of power of attorney should be served on party when costs demanded. Doe v. King 3 Kerr 492. U — A^davit of demand of money must state the ^ay of demand. Campbell v. Todd, 3 Kerr 199. I" W,«, .,'■ ."I I-., I ^ 1064 PRACTICE. ■I ■ I •> -Attiicliiiicnt — l¥itness. Clear case of contempt must be shewn. Not necessary to shew that witness was called on subpoena if it appears that he did not attend — the materiality of his testimony not taken into consideration. Maloneij v, Morrissnn, 1 All. 240. 16— ITIaiKlaiuns— Rule discliai'i^ed— Costs not allowctl — Afiiflavits beiiitf improperly entitled. See Affidavit II. 3. Rule Tor certiorari. See Certiorari. 17 liule nisi for new trial granted, and on argu- ment, Court equally divided in opinion, judgment follows on the verdict. Gaudin v. McKilli()nn, 2 Kerr 477. IS— Refusal to amend rule. Where a rule has been obtained in a former term for setting aside a judgment for irregularity with costs, the Court refused to amend the rule by ordering the plaintiff's attorney to pay the costs. Hasluck v. Watson, 2 Kerr 362. 19- Rule nisi— RemoclelliuK of rule. Where a rule nisi has been granted to enter a non-suit pursuant to leave reserved at the trial the Court may re- model the rule, and order a new trial on payment of costs by the plaintiff. Doe dem. Bryson v. /• leet, 1 Pug. 343. Discharging rule for peremptory iindertnkinif En- larging; rule. See Judgment as in case of Non-suit. ttO— licave to amend— Duty ol party. It is the duty of a party who has obtained leave to amend his pleadings to take out the rule and serve it on the opposite party, and if he omits to do so, he cannot set up his ignorance of the terms of the rule as an answer to a proceeding taken by the opposite party in consequence of the conditions of the rule not having been complied with. A party who obtains leave to amend his pleadings on pay- ment of costs, is bound to pay the costs within a reason- able time after taxation. Patterson v. Patterson, 1 .1". 400. w^- PRACTICE. 1066 iwa. Not necessary jpoBua if it appears by of his testimony leji V. Morrisson, 1 ■Costs not «llow«''■!' i-i|Mi i 1068 PRACTICE. •Iiited, the notice of trial will be sufficient if the defenlinl is not misled by it. Sears v. CohiU and KiUanet ^P.iB. 301. Notice ot meeting of arbitrators. iSiee Arbitration lY. Notire of appeal. See Supra V. 8. See further — Notice, etc. Demnrrer— Setting down cause for argaaieat. See Infra XI. 8. X. Inquiry (Writ of). t— Defence— Credit— Agent. After judgment by default on common oountf for work and labour, etc., the defendant may shew on the execution of writ of inquiry that he contracted merely as agent of the person to whom the credit was given. FalU r. Sar^mt, i Kerr 248. tl— Interlocutory fudgment— Revival. It is not necessary to issue a scire facias to reTire an in- terlocutory judgment more than a year old before isiuinga writ of inquiry. Ibid. 3— Term's notice. If four terms have elapsed since signing in^erlooatory judgment, a term's notice ot executing a writ of enquiry is necessary, McDonald v. Upton, 3 Kerr 566. 4— Writ— Direction— Judge— Return. Where a writ of enquiry is ordered to be executed be- fore a Judge at nisi prius the Judge sits only as an sssist- ant to the Sheriff. The writ should be directed and the in- quisition returned as in ordinary cases. A writ direotod to the Sheriff and Judge, and an inquisition returned under j the seal of the Judge is a nullity and is not waived by the defendant's attending and taking part in the inquiiition. Fowlie V. Stronach, Ber. 67. 9— Setting out declaration in ivrit. Quare, Whether whole declaration should be let ou PRACTICE. 1069 in writ, where, on a special case, the Court held that pli*in- tiff was entitled to recover only on some of the counts. If n, writ may be amended. Kinnear v. Itobitison, 2 Han. 78. 4-0rdei*eK parte— Judi^c— Vacation. Ad order for executing a writ of inquiry before a Judge «t /uf i prim, obtained ex parte irom a Judge in vacation, iB inegular, and the inquisition will be set aside. Cunard v. Fmer, Mich. T. 1834. T-No verdict—Mecond writ. If the jury summoned on a writ of inquiry are unable to igiee and are discharged, a new writ may be issued with* out applying to the Court. Ward v. Dow, Ber. 21. ftttiiiK aside proceedings on writ of inquiry. See Supra VI. 20-22— Judgment by default. Caunteraiand of notice. See Supra IX, 10, 11. XI. Demurrbb. See Amendment — Pleading. I Court has no power to set aside a demurrer ai frivolous. Petty v. Hamnumd, 3 Kerr 686. i Objections of form to a summary writ cannot be *^; and he cannot afterwards, by refusing to pay the ^* be allowed to at^ue in support of it. The plaintiff u>'Kwb ease is entitled to judgment on demurrer. Home h-Carwrt, 3 A>rr 111. |K t-.i n p 1 ii m iMif: i ' , '1 M ^ • ■ ' 1 1 ly L; ]:■.;;, 1070 PRACTICE. Y— Objections— Former pleading. Where one party demurs to any pleading, the only ob- jections which the other party can make to the former pleadings are those which go to the substance, not the form of such former pleadings. Mechanics' Whnlfi Finking Cmn- pany v. ^^kitney, 3 Kerr 312. ft— ConrJusion— Snfliciencsr. A demurrer is sufficient in form though it does not con- clude with a prayer of judgment. Tower v Cox, 1 Pvfj. S23. XII. Feionkd Issue. 1— Dou;»trni raci»<. Wher* ac -e o * : material facts necessary to be ex- plained in opposing a motion to set aside a judgment on a warrant of attorney, were left doubtful by the affidavits, the Court ordered feigned issues to determine those facts. Lunt T. Estabrooks, 3 Kerr 144. 4— Evidence under. On a feigned issue, directed to try whether by the agree* men t and intent of the parties a certain judgment had been fully satisfied by a settlement made between them in Jul; 1843, a levy on all the defendant's property on the 9th October, 1843, appeared in evidence. Held, That under the terms of the issue the defendant could not avail him- self of such levy as any satisfaction of the judgment. Lmi V. Ettahrooks, 3 Kerr 291. S— Bond and warrant oi attorney— Transactions. On a motion to set aside a judgment entered upon a bond and warrajit of attorney, where the transaction which led to the giving of the bond and warrant is not satisfactorily explained, and it is questionable whether the debt for which the security was taken, was not satisfied before the entry of judgment, the Court may in its discretion order an iesue to be tried, in order that the facts may be ascer- tained before a jury, and will direct the proceedings on the motion in the mean time to be stayed. Oilmore v. Dmna, 1 J t PRACTICE. 1071 XIII. Arrest op Judgement. I- In an action for slander, the defendant pleaded the Statute of Limitations : plaintiff replied, that a pre- vious action was brought for the same slander in due time, in which he had obtained a verdict and judgment had been arrested (setting out the proceedings in the action as mat- ter in pais, without any averment prout patet per rec); and that the present action was brought within a year after sach arrest of judgment. Bejoinder, That there is not any record of the several proceedings (setting them out seriatim.) Sur-rejoinder, A repetition of the replication. Held, on demurrer, That the arrest of judgment should have been entered of record, and pleaded as such. Beardsley t. nmiee, 1 Kerr 642. i Where the cause of action, as laid in the declara- tion, is proved, the plaintiff cannot be non-suited on the ground that the facts proved do not make out a cause of tction : he must move in arrest of judgment. Cameron t» Btardsley, 2 Kerr 598. (See Non-suit.) i If the defendant takes issue upon the facto illeged in the declaration, and they are proved, thft plaintiff cannot I)e non-suited on the ground that those facts do not disclose a cause of action ; but the defendant mudt moTe in arrest of judgment. New Brunswick vnd Nova Scotia Land Company v. Kirk, 1 All. 443. I It is not a ground for arrest of judgment thai the declaration is entitled generally of a term, and that the oanie of action appears to have accrued on a subsequent day in the term. Williston v. Pierce, 2 All. 162. * Where the declaration alleged a custom as'the {oundation of the cause of action, and the defendant took issue thereon, which was found in favor of the plaintiff, it i' no ground for a new trial that the custom proved is in* valid. The objection should be taken by demurrer or mo« tion in arrest of judgment. Breen v. Elkin, 4 All. 187. ' -It is no ground for arresting the judgment in an action on a replevin bond, that the bond, as stated in the rf li i> : I: 1; m4:i ii 1072 PRACTICE. declaration, is not in the form prescribed by the Act, if tli« bond itself is eorrect. The variance might be amended cyen after notice of motion in arrest of judgment. Steett T. Hanson, 4 All. 459. See Bills and Notes I. o. XIV. Incidental PROOESPmas. I— Kevlew Irwas Jastice^s Court. Court will not receive affidavits to falsify return ot Justice. See Justice of the Peace. 9. Party obtaining order for review has the riglit to begin. Bmtin v. Howell, I All. 596. 8-r8et*ofl[— jr«4vaieats— jLien. When the Court allows one judgment to be set olf against another, it must be subject to the attorney's lieu generally, and not merely to the extent of the taxed coett) in the particular suit. Rogers v. Ledden, 2 Kerr 59. * Semhle, The Court will allow a judgement of the Inferior Court of Common Pleas to be set off against a judgment obtained in this Court, although the action in the Common Pleas may have been brought in the name of another per- son ; the defendant in this Court having the sole beneficial interest therein. Ibid. 4— Verdict— JlMdve— Power on trial. At the trial of a cause a Judge has not power, without the eonsent of parties, to direct a verdict to be given for the plaintiff, subject to be set aside, and verdict entered for the defendant upon points reserved. This can only be effected by the jury finding a special verdict where no eonsent ii given. Hughes v. Sutherland, 1 Kerr 574. «-9imUiter. ^ By the practice of the Court a cause is at issue thougli mo. similiter has been added. Doe v. Smith, 1 All, 580. •— PleadlBV SBd notice ot defence. If two pleas are pleaded and a notice of other matters «{ defence. are given, under iheAotlS Vic. cap. 82, i\» i ■ MM PRACTICE. 1078 plaintiff is not justified in treating them ai ft nullity : but ihould apply to a Judge to set them aside. OiUton v. l>almr, 2 All. 364. T Continuances may be entered at any time be- fore final judgment. McDonald v. UpUm, 3 Kerr 366. l-Co«ts— Acquitted defendant— Certiflcate of Jadvc— Gmntiuit— SepnrHte JudKinenfit. See Costfi 1)7. I-Concarrent writ«— Arrettt. Where two writs for the same cause of action were siiimltaneously issued to two counties, and the defendant was arrested on both, application should be made to the Court for relief. Johnston v. BrantJi.eM, Ber. 78. lO-Particular practice must be strfctlF foiiovred— Leltian in to defend. Wbore any particular practice has been prescribed by Btatate, it must be strictly followed. Hdd, therefore, That the Act of Assembly requiring defendants in summary ac- tiooB to plead within thirty days after the return of the writ, is imperative, and that the plaintiff is not bound to receive the plea after the thirty days, although it be tender- «(1 before the interlocutory judgment and at the same time with the entry of special bail. The defendant, however, liter interlocutory judgment, may under the Act be let in to plead upon the usual terms. Lingley y. Hue$ti*, 2 Ktrr 4. ll-Time for pleading— Demand of plea. Under the practice of the Court a defendant who has ippeared, has twenty days to plead from the time of service oU copy of the declaration ; and a demand of plea eannot be made before the expiration of such twenty day^, althoagh the rule to plead, entered at the time of filing the decUura* tioD, may have sooner expired. Fawcett v. Nethery, 2 Km 81. It-Record entitiins. A Record is properly entitled of the term in which iesue ii joined, though the judgment is not signed until a subse* term. McLean v. llitbbely 3 Kerr 686. t: l:i- - II 1074 FUACTICE. 18*-€fiiimc striic^k oft spcnitil piipri*— K<>-4'iiti'y ursume. A clause being struck out of special paper may be entered again at a subsequent term witboit special per- mission of Court, if the entry is made at proper time. After the time prescribed by rule of Court for making entries in the different papers, no cause can be entered at that time without license of the Court. Milncr v. lirydgen, 2 P. f. A decree will not be made for the sale of land bound b; a memorial of judgment, unless the judgment creditori PRACTICE IN EQUITY. 1081 Y. »t been filed within plaintiff may Uke .Court ▼. AfcCartfcj/, -Meanini; wt tern seven trustees, and ie, or refuse to take or become incapaci- ould appoint. Held, ft personal incapacity ) of the trustees did 111 his place. In rt new trustee in such ,e Trustee Act, 1850," as trustee. d from being appoint- objectionable; and ,d, notice of the appli- le persons interested Iment creditor miidf [e in deerce-No 4«f prtgage, a subsequent [with a registered me- lin the decree of fore- id no day was given ! ire absolute was re- 1 the money by tli^j Icliards V. Short, 0(>< ledlngs at l»w «'*' ulty Court. L [sale of land bound by! ae judgment creditor! shews some reason why he could not have obtained the fruits of his judgment by an execution. Where a judgment creditor has a legal charge, he must take all necessary proceedings at law to enforce his claim, before he can ask the assistance of a Court of Equity. Robertson v. Arm- strong, Allen. J., November 1870. l6-.^Isiiiitciiaii('c of iiilaiilH — FathcrN «1iity— R(<^t<^rcnce for further inquiries. During the lifetime of a father, maintenance for his children will not, as a general rule, be ordered out of their property — it being his duty to support them, if able. Where children were of the respective ages of five, seven and ten years, with a joint income of $1000 per annum, and the barrister reported that this sum would be sufficient to sup- port and educate them during their minority, and recom- mended that it should be so appropriated ; the case was referred back for further inquiries as to the amount neces- sary for the maintenance and education t;f these children — 1st, till twelve years of age ; 2nd, from twelve to sixteen years ; and 3rd, from sixteen till their majority. Ex jiarte Htymest, Allen, J., Now. 1870. 17-Iiijiinetion— Titi<<« to »«ustaiii— Prima facie riKht— Conflicting; affidavits— Restraint in meantime— —Ground for injunction— Continuous injury. "Where the plaintiff is in possession of land, and shews 9, prima facie right to it, and it is not clear that there is any honafide dispute about the boundaries, he has sufficient title to sustain an injunction to prevent the overflowing of the land. Weeks v. Dodds, Allen, J., Angnst 1869. Where the affidavits were conflicting as to the effect of a mill-dam in overflowing the plaintiffs land — the defend- ants affidavits denying that it had ever done so — and an action at law was pending to try the rights of the parties, the defendants were restrained from repairing the dam in such a manner as to overflow the plaintiffs land in the meantime. Ibid. If the fact of overflowing land by means of a mill-dam 18 established, and it would be a continuous injury to the 69 »,.•'(',*>'<) (Si iSkfiSUj-.l'" '■'" ph: iir m : |H f';' ' '.If; 1082 PEACTICE IN EQUITY. plaintiff's land, and deprive him of the use of part of it it is a ground for an injunction. Ihid. 18 — Objection — Bill not filed — Defendant having answered, too late to object. It is too late, after the defendant has answered, to object that the bill was not filed within the time required by the Act 17 Vic, cap. 18, sec. 4. Hallett v. Hodgens, Allen. J., August 1869. 19— Order pro confcs»o— Filings bill— PlaintifTwiicn en- titled. Where an order is made for the appearance of an absent defendant, the plaintiff is not entitled to file his bill and obtain an order pro confesso, till the expiration of forty days after the time limited by the order for the defendant's ap- pearance, under the Act 17 Vic. cap. 18, sec. 4. McLml T. Perry, Allen, J., Aug. 1869. 'i#— Costs— Deinnrr<>r to part of bill— Pleailiiig; to ri>- niaindei*— Settinjr down dennirrer only lor argii- inent. The defendant demurred to part of a bill, and pleaded to and answered the remainder. The plaintiff set the de- murrer only down for argument, whereupon the defendant applied for the costs of the plea. Tlt'ld, That according to the 14th order of August 1842, the plaintiff should have set the plea down for argument at the same time a,s the de- murrer, and was not justified in waiting till the decision of the demurrer. Defendant allowed th*^ costs of the plea, un- less the plaintiff replied thereto in seven days. Buchanm T. Peters, Allen, J., March 1871. SI— Answer not filed in time— motion to take ofTflk- Time of operation of order— Duty of party apply- ing— Practice of Clerk. A demurrer to part of a bill was overruled on the 8tli March, and the defendant allowed seven days to answer. The defendant's solicitor was not aware that the order was made till the 21st March, when he took out the order,served a copy on the plamtiff 's solicitor, and filed his answer. On i motion by the plaintiff to take this answer off tile, as not being filed within the time allowed by the order — the answer j PRACTICE IN EQUITY. 1083 i of part of it, it •ndanl liaving iswered, to object e required by the odgens, Allen. J., aiiitiffwhcnen- fance of an absent 3 file his bill and ation of forty days le defendant's ap- ;, sec. 4. Mcleod -Plea«U»»S l« '■*'• rev only lor argii- a bill, and pleaded jlaintiff set the de- ipon the defendant 'd, That according [aintiff should Imve anetime as the de- till the decision of ^stsoftheplea.un- n days. Buchamn In to take off UK" Ity ot party aPP"^- LrruledontheStli }en days to answer. Uhat the order was [outtheorder.servedl lied his answer. On i Lweroff me.asnok [e order-tbe answer was allowed to stand, on payment of the costs of the mo- tion, it not being clear from the minute of the order, whether the time for answering began to run till after service of the order. Buchanan v. Peters, Allen, J., June 1871. As a general rule, an order operates from the time it is pronounced, and not from the time it is drawn up. It is the duty of a party applying to the Court, to ascertain the result of his application, and see that the order is properly entered. Ibid. It is not the practice for the clerk to submit to the so- licitorB the minutes of interlocutory orders, before drawing them up. Ibid. tt-Iiijiinction standing;— Obedienco—Iiegislativc Act. As a general rule, while an injunction stands, it must be obeyed, though it may have been improperly granted, and would be dissolved on application. Valentine v. Hazel- 'm, Allen, J., December 1870. An injunction was granted, directing a sheriff not to discharge a debtor in his custody on execution, under any Act of the Local Legislature, passed or to be passed. ijubsequently, an Act of the Local Legislature (33 Vic. cap. 22) was passed, declaring that no person should be held imprisoned in any civil suit longer than two years ; and that when any person should be so confined, the Sherifif should forthwith discharge him, and should not k' liable for an escape, or in any other suit in consequence lliiereoi. The defendant having been confined in a civil upwardSjOf two years, demanded and obtained his Uscharge from the Sherift'. Held, That the Act released tl'e Sheriff from obeying the injunction ; and therefore an jtttachment against him was refused. Ibid. The Act 33 Vic. cap. 22, relating to imprisonment for liebt, does not come within the prohibition of the 91st section of " The British North America Act, 1867," par. jil, " Bankruptcy and Insolvency." Ibid. |it~Appearance of Defendants— Allowance of— Afll- ttavlt tor appeacance of absent defendant— Nec- esKarjr statenients|to obtain order. An order for the appearance of two of the defendants, h: Ih : ' 'plili III :h li.: ijf'l lil i' ( T m 1084 PKACTICE IN EQUITY. reeiding in England, bad been publisbed in tbe Gaeetk according to tbe Act 17 Vic. cap. 18, sec. 3, and an order made to take tbe bill pro confesso against tbem at tht bearing. Afterwards, before tbe bearing of the cause, tbese defendants were allowed to appear on payment ot costs, tbougb tbey were aware, several months before, that tbe cause was pending, and might have appeared before tbe order to take tbe bill j^^'o <'onfcsso. Putnam v. Caaco Bay Copper Co., Allen, J., Dec. 1871, Where application is made for an order for the appear- ance of an absent defendant, tbe affidavit should state (if within tbe plaintiff's knowledge), whether such defendant has a known place of residence abroad, or, should shew that tbe plaintiff has no means of ascertaining the defend- ant's residence. See General rule, Trin. T. 1856. Ibid. *i'i- -Demurrer overruled — Aii!$\%'er allowed— E\'<.-?|>- tions— Costs. A defendant declined to answer part of a bill, and de- murred thereto : tbe demurrer [was overruled, and defen- dant was allowed to answer within a certain time, l)ut hav- ing neglected to do so, tbe plaintiff filed exceptions to the j existing answer because it left part of the bill unanswered. . A sufficient answer having been afterwards put in,— Hell, That tbe plaintiff was entitled to tbe costs of the eicep-j tions, as it was tbe defendant's duty to ascertain the result j of bis application and to file his answer in time. Buehf nan v. Peters, Allen, J., May 1872. 2-5— Costs— Abbreviations— Same counsel— Inlerioifa- tories—IiTclevant matter— Part transaetion§-Ao i svrer by defendants <',oncerned in. Where tbe same counsel appears at tiie original lieai-j ing and on appeal, two copies of the abbreviation of the pleadings will not be allowed in tbe costs. Frye v. Prei ^<;ott, Allen, J., March 1869. Where a bill was filed, principally for specific performj anceof an agreement, by one of tbe defendants to assign i mortgage, and to redeem tbe mortgage as against aiiothe defendant ; but it also embraced other matters relatini; tdj partnership, etc., with whicb some of the defendants ha (3 Ml'' Rpr* PRACTICE IN EQUITY. 1085 no connection, the plaintiff (though entitled to the general costs in the cause) was not allowed the costs of interroga- toriea respecting matters enterily irrelevant, of interro- gatories to defendants, upon matters which the plaintiff knew to be entirely within the knowledge of the defen- dants. Ibid. i^l Where some of the defendants are concerned only in parts of the transactions set forth in the bill, they should only be required to answer such of the interrogatories a» relate to those transactions, according to the orders of Au!?U8t 1842. Ibul. •16-Bill—liUunctioii— Application to di««ioive~^o an- swer to blii—SufHciency of futtatenicnt— Original application granted. A bill was filed for dissolution of a partnership and for the appointment of a receiver. An injunction was obtained on the statements in the bill, (which was sworn to,) res- training the defendant from interfering with the property, which injunction he applied to dissolve, without success and afterwards professed to answer the bill, though no answer was, in fact, filed. The facts stated in the bill were sufficient to entitle the plaintiff to a dissolution. ,\ receiver was appointed, on notice, upon the statements in the Bill. Barlett v. Styinest, Allen, J., January 1868. 37-Fillng bill-Tmie. The words " within three months therefrom," in the Act 17 Vic. cap. 18, sec. 4, relate as well ^to cases where there has been appearance, as to cases where the defen- dant has appeared : therefore, in cases of non-appearance, the three months allowed for filing a bill, begin to run at the expiration of forty days after service of the summons. Giodfrey v. Reardon, Allen, J., November 1868. i§«Biil tor foreclosure— Parties— Interest. A bill for foreclosure of a mortgage, against three defendants, stated that one of them was mortgagor, and that the others claimed a lien on the property ; but omitted to state what interest they had, or anything to shew that they were necessary parties ; a decree of foreclosure wai Chipman v. Tuck, Allen, J., April 1868. It ^:= 1086 PIUCTICE IN EQUITY. S9— Probate Court— Appeal froiu lUiit^t be made lo Court. An appeal from the Probate Court must be made to the Suprette Court in term, and not to Judge sitting in Equity : and where such an appeal is made to a Judge, his proper course is to decline to hear it, (havina no jur- isdiction,) and not to dismiss the appeal. Ex parte Roach, Allen, J,, June 1871. 80— Disputed Haii«lwritiiis:— (^oinpariNon by Ju«l|;e. If on a viva voce hearing before a Judge in Equity, there is conflicting evidence of the handwriting of a witness, the Judge has a right to compare the disputed writing with an admitted signature of the witness, in order to de- termine whether it is his signature. Havinfjton v. Harshmnn, I HI. r.l873. 31— Supplemental an»«\vcr— Allowance of— Omission of statement of lact»»— Right of parties interested to be lieard ag'aiust allou'nnee — Adding^ parties. Where a defendant omitted to state certain facts in his answer, on the advice of bis solicitor that such statement was unnecessary, and that evidence of the facts would be admissible without it, he was allowed to file a supplement- al answer on the affidavit of his solicitor stating these cir- cumstances, and on payment of the costs occasioned to the other parties by bis application. McLeod v. Firth, Allen, J,, January, 1873. On a bill filed by an executor and trustee for the pur- pose of obtaining a declaration of the trusts of the will, one of tbe defendants and devisees claimed that a mortgage given by him for part of the purchase money of property, which he afterwards conveyed to the testator, should be paid out of the estate, on the ground that the purchase was made by him as agent of the testator. On application by this defendant to file supplemental answer in order to give evidence of this fact, — Held, That other defendants, inter- ested as residuary legatees under the will, were entitled to be heard against filing the supplemental answer, aud to their costs occasioned by the application, on the ground [TY. PRACTICE IN EQUITY. 1087 must be made tu rt must be made to to Judge sitting in is made to a Judge, X it, (havina no jur- ,al. Ex parte Roach, >nri«on by StiAiie. > a Judge in Equity, ndwriting of a witness, the disputed writing itness, in order to de- ature. Hamnfiton v. wane*' ol-Oiiiissioii oi paities interested ,e4>— Adding parties. tate certain facts in his that such statement of the facts would be A to hie a supplement- licitor stating these civ- costs occasioned to the rLcod V. Firih, Alkn, [d trustee for the pm- the trusts of the will, plairaed that a mortgage ise money of property, the testator, should be Id that the purchase waB L-. On application by [answer in order to give lother defendants, iut*;r-^ Ihe will, were entitled to Imental answer, and to lucation, on the ground that this claim, if sustained, would reduce the residuary estates in which they were interested. Ibid. Scmhlc, That where land is devised to A. for life, in trust to apply the rents and profits for the benefit of his children ; and after his decease, the property is devised to to his children in fee ; they are necessary parties to a suit by the executor for declaring the trusts under the will. Where the objection of want of parties was apparent on the bill, which might therefore have been demurred to ; but was not taken till the cause had been partly heard, and then, in connexion with the defendant's application for leave to file a supplemenal answer, the plaintiff was allowed to amend by adding the necessary parties, without payment of costs. Ibid. 32-AnK\vci> on flic— Bill cannot be taken pro conresso. If there is an answer on file, the bill cannot be taken pro confisso, whether the fact appears by the admission of the plaintifif's counsel or otherwise. Lockhart v. Sancton, Mien, J., JaniMnj\1870. U -.4ppeal~<(ucstions ot fact— .rudg^nieiit of Court be- low— :VIi«>>joinder— Failure of proof of allcg[ationN in l>iil—]TInitifariouMnes!«— Where parties cannot be placed in statu quo— Deed— Consideration- Intoxication— Incapacity or contracting. Where the Judge of the Court below, whose judgment is appealed from, has had the witnesses before him, and heard their testimony, an appellate tribunal will never interfere with his decision upon a question of fact, unless for an error in it which is overwhelming. An objection that a party was improperly joined as co- plaintiff in a suit in equity cannot be raised as a ground »f appeal from the decision of the Judge below at the hear- ing of the cause, but must be disposed of under the 17 and 18 Vic. cap. 18, sub-chap 2, sec. 24. (Consol. Stat. cap. I <9, sec. 50). The failure of plaintiff at the hearing, to prove one or more allegations in his Bill is not a ground for dismissing : li 'W.i:' w li ;f, : ! 1 1 W ~1 ^!5j r M ff^^^^^' (| , IP '.'( uH^ 1 ^ i 1. : 1 ^ 4 iwm ji '1 i.ji ' ' ■ ' K' fvM I ■ ■ WKmiMimM^mi: %\'''t:) 1088 PRACTICE IN EQUITY. the Bill, if be has proved other allegations which will entitle him to the relief prayed for. In order to avoid a deed made by a lunatic, or person in a state of intoxication, two things must be established 1st. His incapacity to contract ; 2nd. His equitable right to be relieved ; and where the incapacity to contract, as the result of dissipation, was established, and inadequacy of consideration shewn, the Court granted relief. If a Bill does not pray tor multifarious relief, it cannot be objected to on the ground of multifariousness, though the facts stated would justify a prayer for multifarious re- lief. At all events, a defendant cannot raise such an ob- jection at the hearing, although the Court might mi tpoute. Where a deed, executed by a person incapable of con- tracting, as the result of dissipation, might be avoided by reason of the inadequacy of consideration, and the grantor was at times sober and capable of managing his business, he must have been fully informed of his rights, and capable of acting on his own behalf, in order that his not repudiat- ing the deed during his lucid intervals shall amount to acquiescence in it. As a general rule equity will not interfere with a trans- action where all th^ parties cannot be reinstated, the reason being, not merely the change in the legal title to property, but because new equities have supervened, which would have to be displaced in order to afford the relief sought for ; and it will not refuse to administer an equity and to afford relief, so long as a prior equity is not inter- posed which would render it inequitable to do so; and where a person is claiming equitable relief against a wrong- doer, the devisee of the latter can be in no better position than the wrong-doer himself. Where a deed was given by a person incapable, as tli» result of intoxication, of contracting, and a part of the consideration was that the grantor was to occupy the premises for a stated period, which had elapsed before a Buit to set aside the deed, and to have it treated a^a mort- PRACTICE IN EQUITY. 1089 fhich will entitle natic, or person k be established, B equitable right ,' to contract, as and inadequacy I relief. 8 relief, it cannot riousness, though r multifaiiouB re- mise such an ob- Court might sm incapable of con- igbt be avoided by ,n, and the grantor ftging bis business, righti, and capable at his not repudiat- [8 shall amount to [erferewitb a trans- be reinstated, the in the legal title to s supervened, whicb to afford the relief iminister an equity ■ equity is not inter- ble to do so ; and lief against a wrong- L no better position in ineapable, as tb« 1 and a part of tbe Las to occupy the Ld elapsed heforea , fit treated a^ a Dio'^' gage, was brought. Held, That is was not neceBsary for plaintiff to set forth the agreement in the Bill, and pray to have it set aside, both because the agreement had expired by lapse of time, and because, being a part consideration for the deed, when that was disposed of the agreement went with it. Janes v. Calkin, et al. 3 Pvg. 356. 13— Appeal— Dccre<> not entered up. An appeal docB not lie from an opinion of a Judge in Equity, the decree not being regularly entered up. Hodge ?. Reid, 2 Pug. 26. Appeal from order or Judge— When <«anie $ihould be made. See Insolvent Act of 1 869. McLeod v. McLeod. SC— Dissolution of an order of iuJUHetion— Equity ap- peal—New ««tateof tacts— Judge^s power. An ex parte order of injunction was obtained from a Judge at Chambers to restrain injury to land and an action at law was commenced shortly after. The injunction hav* iiig been dissolved and the decree of dissolution appealed trom. Hehl, That where a new state of facts is pre- sented the power of an Equity Judge to dissolve an injunc- tion is not affected by there being an action at law pending to try the title. Smith v. Morrow, 2 Pug. 24. SY-Wantof parties— Misjoinder- Want ot interest in party— Disclai nier. Neither want of parties, nor misjoinder is a ground of demurrer under the Equity Act 17 Vio. cap. 18 sec. 8 and 24. (Consol. Stat. cap. 49, 35, S. S. 44, and 50.) If a defendant in an Equity suit has no interest his jMroper course is to disclaim by answer. Cotton v. Stack 3 Pu^. 424. Foreclosure— Parties in suit— Debt secured by mort- gage— Holder of legal estate. Where a debt secured by mortgage on land belongs to one person, and the legal estate in the land is vested in another, both must be parties in a suit for forecloBure. m. ! , 1 li' !'!i M ;•;.![ I i U till f I" i m '!i I ''{\'\\ I fi 1 e i ' I! * 1090 PRACTICE IN EQUITY. 3PI— Lettei'N rcferretl to in dcfRiidant^s ntiHWcr— Judge requiring production ol sninc for inMpcction- Appcni— Time. "Where certain letters were referred to in defendant's answer, the Judge in Equity required the defendant to pro- duce them for the plaintiff's inspection, and certain of them were put in evidence on the hearing and the Judge made use of them in arriving at his judgment. Held by Weldon, J., That the ruling of the Judge in Equity was correct; by Wetmore, J., That at least it was no ground for appeal. If the order of the Judge in Equity was improperly made, it should have been appealed from at the time. McLeod umynee, &c., v. Wright. Wright, appellant, v. McLeod, Re- sjHmdent, 1 P. & B. 68. Bill ordcretl tu l»c taiicii oil' Men of Court — Action brougiit againsit Coiiiinitine of Liunatic^s estate without leave of Court. See Action at Law, IX. 32. CofiitM in Equity. Sec Costs 57 to 62, 77, 70. Inip<'acliin(? agreement— Meces$i>ity of filing ctohh bill. See Equity 13. Kent and profits— Barrister] taking; account of before Commissioners i— PrivHK; I'ig^htM affcctod— Keini'dy at law—Delny. The Act 2 Wm. IV. cap. 26, incorporating the St. John Water Company: authorized them to draw water from, erect reseivoirs on, and carry ])ipe8 through private pro- perty, as they might think necessary, on paying compen- sation to the owners for any damage sustained thereby. ilieAet 12 Vic. cap. 51, authorized the Company, in order tr vopnre a more efiicient supply of water, to enter on pri- vatu property, and " build dams or embankments on any wook, s am, lake or pond, for the purpose of creating wtificiu jiouds or reservoirs, and by such dams or embank- I ments to (;ause the flowage of such private property, and to continue such flowage as long as they should see fit ;'* I tint that no such d us, etc., should be built, or ponds or teservoirs made, or pipes laid down, without compensation ho the owner of the land for any damage sustained thereby (pointing out how the damages were to be ascertained in wsethe parties co Id not agree). By the Act 18 Vic. cap- [JWnr IV.' ' 1092 PP.ACTICE IN EQUITY. m M: 2h, all the rights and powers of the Company were vested in Commissioners. Sec. 7 declared that it should be tlit duty of the Commissioners "to extend the prcaent water supply as far as they may deem it practicfl,ble or expeclient, by carrying a sufficient main or mains to Latimers's Lake and Loch Lomond, or either of them," etc. A dam was erected by the Company over a stream called " Little River," the property of the plaintiff's mother, and a reser- voir constructed. After her death, in 1856, the dam was continued, and pipes laid down to convey the water there- from, of which her husband, the tenant by the courtesy, was aware, but took no proceedings to prevent it. The plaintiff, who was the owner of the fee in remainder, filed a bill in 1863, for an injunction to restrain the Commis- sioners from continuing the dam. Held, Ist. That the Company had a right to appropriate the water of any stream that could be made available for the purposes contemplated by the Act. 2nd. That the 7th sec. of the Act 18 Vic. cap. 3;"), authorizing the Commissioners to take water from Liitimers Lake, did not abridge any rights previously granted, or impliedly restrict the Commissioners from using the water of Little River. 3rd. That if the making com- peiisation to the owner of the land was a condition prece- dent to the entry and construction of the works by the Company, or the Commissi ; .ers, their entry was illegal, and the person v>'hose right was affected had a remedy at law. 4th. That it did not appear that irreparable injurv would be done to ♦he property of the plaintiff by the opera- tions of the Commissioners ; and that after so much delay wiih knowledge, or the means of knowledge of the works of the Commissioners, it was too late to interfere by injunc- tion. Botsford V. Sears, 6 All. 116. S— Re««ti'aiiiin|( Adiniiiltjitratoi' from selling n«tset8 (• pay debtK— fV» NiilUciciit {'!«gs%vei'— Iniunction not dissolved. Where an injunction had been granted ex parte, tore- strain an administrator from selling land under a license | granted by the Probate Court, on the ground that he h; sold property Under a former license under value, and hi ^^^Z, PEACTICE IN EQUITY. 1095 pany were vested t it should be tli» the prcseat vfater [cable or expedient, ;o Latimera's Lake 'etc. A. dam m?, am called " Little lother, and a reser- 1856, the dam was ey the water there- iiit by the courtesy, to prevent it. The in remainder, filed istrain the Commib- HeU, Ist. That the J water of any stream irposes contemplated f the Act 18 Vic. cap. to take water from ny rights previously aiissioners from using ; if the making com- as a condition precc- of the works by the Bir entry was illegal, ;ted had a remedy at at irreparable injury plaintiff by the opera- it after so much delay owledge of the works to interfere by injunc- m selling as^^et* tt minted c.r ])aT(«, to re- ig land under a license I he ground that he "•" J under value, and sufficient property in his hands to pay the debts, an ap- plication to dissolve the injunction was refused till the defendant had answered, it not being clearly shewn by his affidavits tJiat he had not a portion of the estate in bis poBBession which belonged to the heirs. Coy v. Coy, 1 Han. 177. 4— Kisht of judg^iiieiU creditor to sell under eKeeiitioii —Restraining: sale. A judgment creditor has a right to sell under execution an alleged right that his debtor has in certain land ; and a party in possession, and claiming the land, cannot restrain tlie creditor Irom selling, and thereby acquiring a locnf stdudl to contest the title. Case v. Palmer, 2 Han. 183. .*> Judgment debtor having no interest— Defence at iau'. If the judgment debtor has no interest in the land levied on, the Sherift's deed conveys nothing, and the party in possession will have a good defence at law, and therefore does not require the assistance of a Court of Equity. IhuL 6-Kestrainiiig Company Irom overflowing land until con«litious fulfilled. The St. .John Water Company, in consideration of being allowed to overflow a part of the plaintiff's land, agreed to build a bridge over the overfiowage, for the convenience of the plaintiff, and to keep the same in repair as long as the ovfcfllowage continued ; in accordance with this agreement, they built the bridge. By Act ] 8 Vie. cap. 38, all the rights and powers of the Company, subject to their outstanding liabihties, were vested in the defendants, who allowed the Widge to get out of repair, though they continued the ovei- llowage; an injunction was granted to restrain them from coutinuing to overflow the plaintiff's land till the bridge was put in proper state of repair, and also to restrain them from allowing the bridge to remain out of repair while th5y continued to overflow the land. Iti/aii v. Lu< hhart et al., 1 Pug. 127 7--Appiivation ex parte— Party applying must state all important facts. Where a party applies for an e^- parte injunetiou, he in Isf If'" WW \ ' ■ ■ ' ■ :i: il , 1 1094 PKESUMPTIONS. bound to state all the facts which are important to be .ou"ht before the Court, and which might influence it in determin- ing upon the application ; and if important facts within the knowledge of the party, are omitted, the injunction will be dissolved without regard to the merits. Thus, where an injunction was granted to restrain the defendant from building a wharf beyond the line of high water mark in the harbour of St. John — the plaintffs claiming by their charter the soil of the harbour, and the space between high and low water mark ; but the defendant held, under a prior j'rant from the Crown, extending to low water mark, and claimed the right to extend his wharf, as the owner of the land, which facts were known to the plaintiffs, but were wholly omitted from the bill — the injunction was dissolved on this ground alone. Maijor d-c. of St. John. v. Brown, 1 J'liff. 100 1 iirogiMfcrcd iiioi t^ii^4' of Mliip— Ajkplicatioii i'<>lii*tO(l to rc!!»ti-aiii |>Hrclia!«<>r fVoiii 'iliMiiOMiiiK- of sliip. See Shipping Law 3. Eroctioii of dam in |>iil>lic •^ti'i^aiii— Re^traiiiiHg^ des ti'iiclioii of'daiii l»y |:->rsoiif>i not ob^iti'iictod. See Water Course. PRECIPE. Set; Practice VI. 42. pki]»extiiik:\t. See Bills and Notes. PUESIDinrO OFFICER. RiH:ht to vote— Return by. See Election Law. PRESIDEIVT. Remuneration. See Corporation 27. PRGSUJVrPTIO.\§. See Evidence VI. PoHSCMNion of land— Contiuuanee. See Limitation of Action IV. 18. PBINCIPAL AND AGENT. 1095 Right ol i%ay— L.ost «l€'c«1 See Evidence VI. VI. Payment over of money. See Assumpsit III. 14. Nhei'ifl'>« procecdin^^— Regularity. Sec Sheriflf's Deed ,. Deedot master in €L r ncery. See Deed I. 17. Newspaper— Publication. Sec Joint Stock Company 3. Authority of officer. Sec Evidence VI. 1, 2, 5. Surrogate— Oalli. See do. 1. pitirvriPAL AND AOi:.NT. l-Crc(^it— Vo whom given. Whero a purchase is made by an agent, who discloses the name of his principal, it is a question for the jury to determine to whom the credit was given ; and wliere the evidence is conflicting, the Court will not disturb tho ver- dict. Sc0tt V. Curry, Hil. T. 1834. ! E., a broker, eft'ected insurance with the plain- tiff on account of the defendant; the pi ij'^y was issued in the name of E., on account of "whom it may concern;" but plaintiff knew at the time, that the insurance was for the defendant's benefit, and that E. was only acting as his agent. The premium was not paid, and it did not appear that tlie plaintiff had charged it either to the defendant or R., though all the entries relating to the transaction in the plaintiff's books were in E.'s name. No claim was made aponthe defendant till ab>ut a year after the insurance. "cH, That the jury were properly directed that if the plain- tiff, knowing that E. was on)v acting as agent for the de- fendant, gave the credit to E., he could not afterwards look to the defendant for the premium. Stymest v. Soloman, €t •'., 2 Han, G, 'Hi'li i' 1 . . 1 .' i i ■ ■ 1 1 :l!iv . ii k. '1 ■', 5 1096 PEINCIPAL AND AGENT. d— Subscribers for slock appointing person for specU fie purpose— Agent— Claim— Commission. A person appointed by a number of subscribers for stock in a proposed Joint Stock Company, to receive and remit their subscriptions to the head office of the Company, is not the agent of the latter, and has no claim against the Company for his services. Quebec and Halifax Steam Nav- igation Co, V. Ciiiianl, Ber. 47. 4 The right of an agent to retain money for agency and commission is exercisable only upon the specific money on account of which the charge is made. Ihid. «1— Agreement— Sluicing o( by agent— Estoppel. In trover for timber, plaintiffs claimed under an agree- ment made between D. of the one part, and S. (under whom defendant claimed) of the other, whereby D. granted license to S. to cut timber on certain land, — the timber to remain the property of D. till the stumpage was paid. The agreement was signed by D. " for the proprietors, by J. B." It was proved by D. that the plaintiffs were the j)roprietors of the land, for whom he acted as agent when he made the agreement. Heldy Ist. That it appeared by the agreement that it was made byD. as agent for the plaintiffs, and that they could take the benefit of it, (Ritchie, J., dubitante). 2nd. That the de- fendant, claiming under S., could not dispute that the plaintiff's were the proprietors of the land. Ilersaij v. Ih- thewny, 6 AIL "237. 6— Aulliority to app4>ar and defend suitN. Defendant being about to leave the Province, gave a Power of Attorney to an agent, authorizing him to appear to and defend any action that might be brought against the defendant during his absence. A suit was commenced, and a copy of the writ sent to the agent, who declined to j appear. Held, That the agent was not bound to appear, and that interlocutery judgment signed for want of appear] ance, was irregular. Harris v. Mitchell, 1 Han. 2. Y— Pouers and authority. Under a power given by the Tobique Mill Company (wl)ol f "' PKINCIPAL AND AGENT. 1097 rson for speci- Hsion. sub8criberB for ', to receive and of the Company, jlaitn against the ilifax Steam Nau- money for agency he specific money Ihkl iMtoppcl. d under an agree- ndS. (under whom ereby D. granted I land,— the timber tumpage was paid. the proprietors, by - plaintiffs were the ae acted aa agent M, l8t. That it t was made byD. they could take the .2nd. That the de- >t dispute that the ,ud. Ttcrsay v. //'■ Ithe rrovincfc, gave a V-izing him to appear! 1 be brought agamst ^ LuitNvaa commenced, i Unt, who declined to Lot bound to appear. Ldforvvantofavpew- Mill Company were incorporated by Act nf Assembly) to their agent, "to manufacture logs into lumber at the millrf, and transport them to market, and sell and dispose thereof for the com- pany's benefit." fL^hl, That the agent was not authorized to deliver over the lumber at the mills, without the know- ledge of the directors, in payment of securities given by him on behalf of the company, tor debts contracted in the course of his agency. Such delivery vests no property in the creditor. Lombard v. Winslnw, 1 Kerr 327. Qucere, Whether the Tobique Mill Company could give authority to their agent to make promissory notes, and if lie could make them in his own favor. Ibid. § "Where an agent is authorized to receive money only, payment to him by a bill of exchange will not dis- charge the debtor, although the debtor was ready to have paid his debt in money at the time, and delivered the bill of exchange in lieu of money at the request of the agent. Crane v. Boltenhouse , 2 Kerr, 581, But payment to such agent by the promissory note of a third person, indorsed by the debtor for the purpose of being immediately discounted, at a bank, and which is so discount- td, and the money therefor received by the agent for his principal, without any liability on the note attaching to the principal, may be considered as a money payment by the debtor. Crane v. Boltenhonse, 2 Kerr 581. ' The plaintiff entered into a written agreement with B, to supply him with a quantity of logs ; B. trans- ferred his right to the logs to the defendants, who entered into the following agreement with the plaintiff : " We agree to pay S. (the plaintiff) the balance that may be due him by B. on account of logs to be furnished by said S. to sfiid B. as per agreement and settlement, when the whole of the logs now remaining on Hovey brook, etc., are driven W past the mouth of Clearwater brook." The plaintiff and E. afterwards made a settlement without the knowledge cfthe defendants, on which a balance was struck in favor of the plaintiff. HeU, That B. was not the agent of the defendant for the purpose of this settlement ; and that in 70 !■'.( 1098 PRINCIPAL AND AGENT. an action for the balance, it was necessary for the plaintiff to give in evidence the agreement between himself and B., in order to ascertain whether the settlement was made in accordance therewith. Sutherland v. Gilmoitr, 3 Kerr 165. *• The authority of an agent specially authorized to draw a bill of exchange for a particular purpose, ceases on the acceptance, and if the drawer is discharged by want of notice of dishonor, the agent cannot, without further ex- press authority, revive the liability by agreeing to waive the legal discharged. McGhie v. Gilbert, 1 All. 285. II— Liability ol'a;?ciit. An agent with power to raise money, whose principal re- sides abroad, is personally liable to an attorney retained by him to carry on suits for the principal, unless he limits iiis liability at the time. Jack v. Clewes, 3 Kerr 637. 13— Public a;j|^eiits. The defendants, under the Act 7 Wm. IV. cap. 28, were by the General Sessions of the Peace for the County of York appointed a committee of management for the erection of a new gaol ; and in that capacity contracted with the plaintiff, binding themselves and their successors as sucii, on behalf of the said county, and subscribing their names " a committee on behalf of the county." Jleld, That they were mere agents for the public, and not personally liable on the contract. Jilair v. Robinson, 3 Kerr 487. 13— Referees -l¥lieii a{j:eiits ol parties. Plaintiff being lessee of land, assigned one half of it to the defendant, who entered into a bond to pay the plaintiff I for half the buildings, such sum as two arbitrators shoulJ [ determine before a certain day ; the arbitrators not haviug 1 been appointed under the bond, the parties afterwards! agreed verbally to refer the valuation to arbitrators, who made an award of the value. Helcl, That the referees were! the agents of the parties to Settle the value, and that tliel plaintiff might recover the amount awarded by them, as an! account stated. Coram v. IVheten, 4 All. 293. 11— Policy— Issue -Notice. A policy of insurance is considered as issued when tli« T. PRINCIPAL AND AGENT. 1099 y for the plaintiff n himself and B., lent was made in moi/r, 3 Kerr 165. ecially authorized ir purpose, ceases iischarged by want vithout farther ex- ajTvecing to waive t,\ All 235. whose principal le- attorney retained !))• unless he limits lus Kerr 637. m. IV. cap. -28, were . for the County of ^ent for the erection -ontracted with tiie successors as such, [scribing their names Held, That they ,ot personally Kerr 4B7. Ined one half of it to Id to pay the plamUfi [o arbitrators should rbitrators not haviu^ parties afterwar b to arbitrators, m that the referees vf ere value, and that the larded by them, as an j {All 293. as issued when til"! agent forwards it to the brokers for delivery. (Per Ritchie, J.) McLaughlin v. ^^tna Ins. Co., '^ All. 173. 15. Notice of a prior insurance to an insurance broker, is not notice to the Company. Ibid. 16-Liability of principal lo iiidoiiiiiity agent— linpli<;d contract* The defendant being the owner of a steamboat of which the plaintiff was master, sent him to the Bend to tow a ship to Saint John : the ship in launching lost her rudder, and was towed in that state to Saint John, and while going iato the harbour in the night came in collision with and sunk a schooner, the owner of which recovered damages against the plaintift for negligence. In an action by the plaintiff against the defendant for indemnity, the declara- lion alleged, and it was proved, that towing vessels was a dangerous business, and that the danger was much in- creased by the loss of the rudder : it was also proved that the plaintift might have replaced the rudder, and need not liave entered the harbour in the night. Held, (Street, J. 'kmitiente), That the plaintiff must be presumed to have known that he was doing an unlawful act, and therefore there was no implied contract by the defendant to indemni- fy him against loss; and per Parker, J., even if there had Deen an express contract to indemnify against such risks, i would be void as being contrary to public policy ; and per Wilmot, J., that the plaintiff was estopped by the |]iidgment recovered against him by the owner of the schooner, from disproving his own negligence. Leavitt v. Ms, 2 All. 282. Held, also, That the plaintift''s conduct being unlawful I M subsequent ratification oi his acts by the defendant 1 Mid make him liable. Ibid , lidd, per Street J., That to destroy the implied liability 'a principal to indemnify, the acts of the agent must be clearly illegal, to his knowledge, and that towing the ship jlder the circumstances was not so ; and therefore if the jprincipal either authorised or approved of the agent's ax«cuti( See Attorney V. 4. Husband and wife-Implied authority of wif«'. See Husband and Wife. Agent binding attorney. See Costs 64. Entry on land by permission of agent. See Trespass II. 34. Acknowledgment by agent. See Evidence I. Election law— Agency. See Election Law. PRIIVCIPAI.. AND SURETY. Bond (or faithful service of oflieer— Proof and noli See Pleading I. 13. Sheriff— Deputy. See Sheriff. 1—Boud— Conduct of clerk— Notice. By the condition of a bond the obligors agreed to nii good to the plaintiffs, a Corporation, any loss sustained V.]o n'-cn'Tu'^t <^'' ^■' . n'^ i '^'ov'". v,-;t!i:"! firro rnon^b'' n! PRINCIPAL AND SURETY. 1103 ■Liability of rcKlMere* lority to issue €'x«cu!lonJ iitliority ol wif*'* SIJBETY. fei-Proof aiMl nom due proof thereof either by confession of K. or otherwise, and notice or warning thereof in writing given to the obli- gors. Held, That a notice from the solicitor of tho com- pany to the obligors, of the general nature of K.'s default, accompanied by an account of entries made by him in the company's books, shewing the moneys received and paid^ and a notification that the books were open for the inspec- tion of the obligors, v/as sufficient proof, and that an affi- davit verifying the accounts was unnecessary. Held also. That neither the notice nor the solicitor's appointment need be under the seal of the company. Mechanics' Whale Fishinfi Company v. Kirby, 1 All. 223. tt-Riirht of surety to recover— Liability of principal. A surety who has been damnified, by giving a security for the original debt which was accepted by the creditor in batisfaction thereof, may recover according to his loss from the principal, upon a declaration stating the circumstances specially, though he has not actually paid the money : as, where he had become liable for the principal on a promis- Bory note, and being sued and unable to pay the amount, gave a bond and mortgage, which the creditor accepted in satisfaction of the note. Trites v. Kelly, Trin. T. 1833. J The principal is liable for the costs of a suit , brought against the surety on his original liability ; pro- vided he has not unnecessarily incurred expense in defend- ing the suit. Ibid. 1 4-Contract under seal— Parol variation. B. entered into a contract under seal, to build a lio.ise for the plaintifif according to a plan and specification and the defendant became security for the performance of the contract. The plan of the house was changed in some particulars, by verbal agreement between the plaintiff and B. without the defendant's consent. B. failed to perform jihe contract in respect to parts of the building in which jthere had been no alteration. Held, in an action against jihe surety. That the contract being under seal, he was not Ifeharged at law by the parol variation of it, though it [would have been otherwise if the contract had not been I;' lUlINCIPAL AND 8UKETY. under seal Sa; Parker v. Wntson, H Ex. 404. Petcn v, Jirymn, (> All. 489. A -Shciifl*))) bond— Niiri;ti<>N— D«>f <'iic<>. The sureties in a Slieriff's bond pjivt-n under 1 Uev, Stat. cap. 131, are not liable lor a breach of duty com- mitted by the Sheriff alter the Slat March in the year for which they became sureties, though the Sheriff is continued in office alter that time. Jicrton v. Ticrney, G All. 202. 6 Where the alleged breach of duty by the Sheriff was the not paying over money levied under an execution, the sureties, in an action against them on their bond, may sliew that the money was received by the Sheriff after the Slst March in the year for which they became sureties. Ibid. V— PoMtiiiai§itei'— BoikI to €ro\vii— RelicI orisiirciicN. One of the conditions of a Bond given to the Crown by a Deputy Postmaster, required him to give three months notice to the Postmaster General of his intention to resign his office, and to pay all sums of money chargeable against him as Postmaster. At the time of his resignation, a Post master was a defaulter, and died insolvent, about twenty one months utter. No proceedings were taken against to enforce payment, though he was applied to several times and promised payment, and no notice of his indebtednc was given to his sureties till after his death. Held, Tha his sureties were not entitled to be relieved from the Bom under the 8IJ Hen. VIII. cap. 39, sec. 79. The Queen Hammond and another, 1 Han. 33. 8— Incorporated Coin|iiiny— Order not wurranled b) Act or By-la%VM— Liability on bond. An order of the directors of a company not warr;iute( by the Act of Incorporation, or by the by-laws, will not re lieve the surety of an officer of the company from his lia bility on a bond given to the company conditioned amou other things that the officer should keep and obey the by laws ; neither, would an order or direction of the director with respect to the funds of the company, unless within th legitimate authority of the board be any justification totli nm lETY. PRIVY COUNCIL. 1105 Ex. 404. I'etcn v. Riven under 1 Rev. )reach of duty com- davch in the year for 10 Sheriff is continued of duty by the Sheriff d under an execution, m on their bond, may y the Sherilf after the they became sureties. tolici of siuii'lic!*' given to the Crown by °to give three months his intention to resign )ney chargeable against his resignation, a Post- cibolvent. about twenty- were taken against him ipplied to several times, tice of his indebtednes? his death. Hc^'h '^^''^^ •elieved from tlu; Bond .ec. 79. The Queen v. vv not waiianl*"* h) bond. ompany not warranted the by-laws, will "ot re- i company from bis ha- my conditioned among "d keep and obey the by -irection of the directorB npany, unless within te e any justification to tlie treasurer, for committing a breach of this bond with refer- ence to the disposition of the funds, by acting in direct violation of the by-laws, or relieve his surety from liability. Spring Hill Mining Co. v. Sharp, 3 Pwf. 603. f-4lteratlou in contract without consent of Nurety. A surety may be discharged from liability if he has been prejudiced by an alteration without his consent, in a con- tract for the performance of which he has consented to be bound. Driscoll v. liarker, 2 P. & H. 407. Action HKainist Niircty— Principal McttlinK demand- Costs not paid by surety— Jii«lKia4>iit cnt«rrcd up lor nominal damaKCN. Sec BUikslee v. Niclifrson, I Kerr 523. Deputy TreaMnr<;r— T«;rni of appointment— friability. See Deputy Treasurer, Alteration ol position of surety by subsequent agree ment. See Surety. Public Auent— Personal liability— <.'redit. See Credit. PRIVATE KOAD. See Highway. PRIVILEGE FROM ARRE8T. See Arrest. PRIVILEGE OF PARLIAMEiXT, See Arrest. PRIVILEGED COifflWUNICATION. See Defamation 4, 5, 8. [Attorney and Client. See Evidence VIII. 23, PRIVITV OF ESTATE. See Covenant. PRIVY COUiVCIL. *Weal to— Time. An appeal to the Queen in Council, under the order of r^ mm I i i h I'! ' 1106 PROHIBITION. November 1852, from a judgment of this Court affirming a decree in equity, may be applied for within fourteen daya after the minutes of the decree are settled, the ugh more than fourteen days have elapsed since the judgment was pronounced. Brookfield v. The St. Andrews and Quebec Railway Co., i All 496. Judge's order— JLcave to appeal. The order of a Judge made in vacation granting leave to appeal to the Queen in Council, and settling the terma on which the appeal will be granted is final, and cannot be revised or rescinded by the Court (Allen J., dubitante.) iJomville v. Kevan, 2 Ha)i. 175. Orders in Council. See 4 All. page 497, being orders passed 27th November 1862, at the Court at Windsor, and referred to in above case of Brookfield v. the St. Andrews and Quebec Railway Co., and appended to said case. Action on order— Necessity ot setting out judifinent sip- pealed trom. See Pleading I. 71. Dow v. Black. PROBA ^E (COURT.) See Executors and Administrators — Surrogate Court. PR0CEEDIi\O$« (SETTI]^0 Ai>ilDE.) See Practice VI. PROCEDEl^DO. See Practice VI. 46. PROCE!i»S. See Pi-acoice IV. Regular <»ii face, a.iu»>tifieation to officer. See Trespass V. 7. PROHIBITION. Prohibition to re<«train •«uit. The Supreme Court will grant a probibition to restrain the Court of Common Pleas from proceeding in an action brought against the Clerk of the Circuits to recover money paid to him aa a fine imposed on the plaintiff by a Judge PUBLIC OFFICERS. 1107 iigontjudifraeiitsip- Iprobibition to restrain loceeding in an action Icuits to recover money lie plaintiff by a Judge at Nisi Prim for a contempt committed in the Niai Prim Court. Ex parte Allen, 2 All. 424. PROITIISSORl' IVOTES. See Bills and Notes. FKOPF.RTY. See Delivery. Vetiting of— Hired incii— Claim. See Timber 2. PROTEST. See Bills and Notes — Insurance. PUBI.IC AGERITS. See Principal and Agent — Government officer. PIJBL.I4J OFFICERS. Liability— Coiniiiissioiici'M of K«;w«r«<. Commissioners of sewers are not liable to actions for work and labor upon the completion of the work, at the suit of'persons employed by such commissioners in their pnblic capacity, unless they personally bind themselves to make payment. Peck v. Robinson, 2 Kerr 687. Prima facie persons doing work under contracts with commissioners of sewers, are presumed to look to the mode of payment provided by the Act '' Assembly 10 ^nd 11 Geo. IV., cap. 29. Ihid. Qiuere, Whether commissioners of sewers would be liable to an action if they neglected to make the assoHS- ment required by the Act ? Ihid. Qiuerc, Whether a supervisor of great roads is person- ally liable upon contracts made in that capacity. See Wlieeler v. Haymird, 1 Kerr 657. Elllorcill^' coiiti'itct -'iVitli piiblir oflircrs. Sec Mandamus 5. Trying right to <>\4>r oliirr. See Quo Warranto. Clerk of Hoiino of AisM^iiibly liability Tor contract* f^cp A-ssnmpsit ITT. 4B. n ' ' 1 1 1 V ■ 1108 ()U0 WARRANTO. PUIS DAI?:REIIV CONTIINIIAIVCE. See Plejiding II. 3., :52— Practice VI. 40, 40fl. PI RCHASE. AjBri'cenicnt to piircliaMC Itiiid. See Tenant at Will. For i^nle and conveyance. See Tenant for Years. PirKf^HA^iER. See Vendor and Purchaser — Slieritf' s Sale. €ou<>iidcration. See Deed. Bona fide |»Hi'cliawer or fillip. See Shipping Law 8. Of Equity of Kedeniption l»y ITIort^'aHfee. See Mortgage 17. Ill rial lai't^. Where a party apphng for a quo uarranto, improperly withheld material facts, which ought to have been etateJ in his atVidavit, the rule was discharged with costs. Ex ^ parte Gilhert, 1 Pii'j. 231. RAILWAY COMPANY. 1109 40, 40a. Sale. il^fC' II IT EB. :^T loancUlor Uaa entered laon,arr«H(o is the pro- E:c parte Cameron, \ L ,rarmnto. improF^n L to have been .ta^ ■^rgod with coBts. t^l Private corporation— Right of €ro\vii or public not af> fcctcd. An information in the nature of a quo warranto will not lie against a person for usurping an office in a private cor- poration, the rights of the Crown or the public being in no way affecter^. Ex parte Gilbert. Re Albert Mining Co., 2 Pug. 29. Aiisessing: value oi land. See Assessment, Mandamus 6 a. I'oinnioii < iivi-ier. See Carriers. Sfl<' T)!iraago8 — Assessment. ' Jo 'it Stock Comp!in\-. RAILWAY CO.ILPAIVY. Authority to cut down tlie level of •■itreet -Plaintifl''s acquiescence. The Act 83 Vic. cap. 89, incorporating the " Carleton Branch Railway Company," authorised tl em to locate and construct a railway from deep water in Carleton to the E. i N.American Railway, investing them with all the powers and privileges necessary for the purpose ; among others, the right to purchase, take arfd hold as much land us might beneceBsary for the location and construction of tiie rail- way; providedtbat in all cases they should pay for the land, taken and used. The I2tb section of the Act authorised the company " to run their line of railway through and up- on any of the streets, wharves, places or Bfj'jnres," as also tlirougu all unleased lands belonging to the City of St. ^ohn. In making the railway, a contractor under the com- pany, cut down a street in Carhton, on which the plaintiff's I house fronted, to a depth of about twelve feet, rendering the [approach to his house diflicult, and materially injuring the ^ value of his property. The plaintiff hr.d been employed as i labourer by the contractor, and worked on a part of the [Etreet so cut down. Held. 1st. That the I'ith section of h;: i. ■i 1110 EEAL ESTATE. the Act gave the company no authority to cut down, or alter, the level of the street ; 2nd. That the plaintiff, by having worked on the street, was not estopped from maintaining an action for the injury to his property, — the work having been done by the defendants under a claim of right, and not in consequence of any consent or authority given by the plaintiff. Wood v. The Carlcton Branch Railway Companyi Ilil. T. 1873. Killiiij; cattle— Liability. See Negligence 4. Kuiiiiiiig: daily train— Duty. The fact that there was no profit derived from running a daily train does not constitute one of the " unavoidable causi 3" that would justify a company in not running a daily train when r vUiired by act to do so. Sec Manramus. Interi'oloiiiial Kailway—Powor to ciit<>i- on pi-ivalc land. The Act 31 Vic. cap. 13 sec. 8, gives no power to per- sons who have contracted to supply sleejiers to be usedou the International Itailway, to enter on private lands wit out the owners' permission, and cut timber for the purpose of supplying such sleepers. Davidson v. King, 2 I^ag. t)M KATE. See Assessment. flATi: FAVEK. See Bastardy — Vote. KATIFK;ATIOrV. See Crown Grant i. 18 — Principal and Agent — ^\arriiut of Attorney. KEAl>l\E!!iM AKD WILLINONESM. AvcriiK'iit -Pi'ool. See Pleading 1. 27. KEAL ESTATE. See Heir at Law. Execution— Testator. See Execution IV. IH. uu RECEIPT. cut down, or alter, )lamtiff , by baving from maintaining —the work having jlaim of right, and .thority given by tbe k Railway Compmp derived from runmng of the " unavoidable ny in not ranuing a 80. dves no power to per- Sleepers to be used ou Ion private lands Nvith- timber for the purpose K. TE. REASOJWABf^E AlVD PROBABLE CAUSE. See Malicious Prosecution — Trespass V. 10 — Criminal Law I. 8. Justice of Pcuvc— Ti'<>!i»pH»»!ii— Want ot Jurisdiction. The question of reasonable and probable cause can only arise when the Justice has jurisdiction over the mutter. See Justice of peace IV. 13. Whittier v. Dibble. REAS^OIVABLE TIITIE. Di8M>n: -Partition. See Partition. REBUTTli\0 EVIDENCE. See Evidence. RECEIPT. Application to Mct a«^idc. See Practice VI. 40. Written receipt signed bj'' mortgagee is not admissible in evidence to prove pa^'ment of rent to him as against the mortgagor. Joplin v. Johnston, 2 Kerr 541. Utoi'iK'y |ii'04;eedin|jr iit action after receipt j^iven - Conte*«ting facts. Where a motion was made to set aside the verdict and iroceedings for fraud and irregularity, and requiring the ilaintiifa attorney to answer, on the grounds that the action had been proceeded in and the verdict obtained after tiie plaintilf and defendant had settled, and that the i)hiiu- tiff had given a receipt iu full, and had notified his attorney to discontinue the action ; and the motion was resisted by jaiHdavits, controverting those in support of the motion, nd among other things stating that the costs remained Dpaid, as also £14 19s. of the debt, that the defendant procured the receipt by fraud in making the plaintilf 4oxicated, us appeared by two witnesses ; and upon these ouuds the attorney of the plaintiif, by his directions, had titled the defendant's attorney he would proceed to trial. M, That there was no misconduct imputable to the plaiu- 8 attorney in proceeding in the action, as the plaintiff I right to contest the disputed facts before a jury, «'iu( V. Gidlmjher, 1 AIL 24. ^imr^ 1112 Kj^ICOGNIZANCE. Receipt by Justice of Peace not a recognition of settlement. See Justice of Peace III. 5. RECITAL.. " Registry — Crown Grant. RECORD* " Pleading II. 23. Courts of. See Justice of the Peace I. Dfcbt ot record— Foreign judgment not. See Judgment. Evidence. See Evidence II. 18. Variance— Amendment. See Amendment III. Rule of Court not a record. See Pleading II. 15. Entitling. See Practice XIV. 12. Highway— Record ot— Neces«ini-y Htatement. See Highway 18, 31. Clerk of peacc>iot bound to produce i't>coi-ds of "liChHioa. See Justice of Ptace III. 8. KECOCiiMIKAKCE. See Bastardy. Irrfgnhu- to make atnl tile a recognizance roll until special hail piece be on file to warrant it. O'Connors. Mntt, 2 Kerr 5(){». Ret>o^iit-#.:iiir4> for pi'0<>><>cntioii ot election pctitiou no* a record. A recognizance entered into for the prosecution cf an election petition before the House of Assembly, under the Rev. Stat. cap. 1J8, and certified to the Supreme Court hs the Speaker aH forteited, is not a record ; and m scire fuci^if on such a recognizance with an averment prout patet p(^ recordum, to which the defendant pleaded nal tiel recorii «■•• '"^y — ', REGISTRY. 1113 recognition of ,t.cortlsol<*»'ssioii. erticr »,<'tisioii the production of the recognizance so certified from the files of the Court does not prove the issue. The Qiteeii v. Sparrow et al., 1 Han. 239. Iiilcre$it on jndg'nieiii a^::tiiii<«t principal, not allowed in entering: np.judii:nient on rccoj^nixnnce of bail. See Bail 38. KEC;OOIVIZAI^f€F R}ISTRV. ><>ii-reg:iKti-y ol ^'ova Scotia tfi'aiit. See Crown Grant 110. Oldred— \voidaiice of leaKC. Scfi Landlord and Tenant VI. 1. liiieKJKlcrcd !>»liip. See Shipping Law H. 'loilKajfcc in fee. Estate cannot pass without enrohn'^n! or registry. See i'^'fl Bnniham v. Watts, 2 KerrM]. il :<: m REGISTEEED OWNER. Registry and ackno\vledg:incnt without delivery. Set' Evidence II. 9. Certificate of aciinowledgnient witliout reg^istry. See Evidence II. 11. Orniortgag:«s not notice of incumbrance to subseqiieai purclia»«er. See Doe v. Poiver 1 All. 271. Unregistered conveyance, operating as release. See Deed I. 20. IVIeinorial of .iuna to prove registry. See General Rules 126. Registry under Medical Act- See Pleading I. 56. Affidavit of witnesses under 36 Geo. III. sec. 6— In- sufficiency of proof to entitle to registry. See Deed I. 46. Administrators deed under license to sell. A deed from an administrator under license to sell for payment of debts, held good against a bona fide purchaser from the heir, though the deed of the latter was first regis- tered. iSee License 12. Doe dem. Bowen v. Robertson. REOIST£RED O^ITNER. Liability. See Assumpsit III. 45. liliLATION. 1115 KECS1»!$TKAK. See Judicial Notice. KEOIJLATIOWI^. See Statute. KKLATION. l—<;onvfyaMc«—R«tfislry— Delivery ol deed. A conveyance of land, registered under the Act 2G Geo. III. cap. 3, conveys the estate, by relation, from the time of the delivery of the deed, unless in the mean time another conveyance has obtained priority. Doe dem. Bridrfes v. Quint, East. T. 18-28. 'i— Judgment— Sigiiin^r -Intermediate Conveyance. The title conveyed by a Sheriff's deed, to land sold under an execution issued upon a judgment recovered in an action brought on a former judgment in the same Court does not relate back to the time of signing the first judg- ment, so as to defeat a conveyance made by the judgment debtor V)etween the times of signing the first and second, judgments. Doe dem. Peabody v. McKnight, Ber. 376. 3— Kegistry before prool. A conveyance of land, appearing by the certificate in- dorsed, to have been registered before it was proved by the subscribing witness, does not operate as a registered deed by relation from the time of the proof. Doe dem. Blair v. Rxdeoiit, 3 AV. 502. . 4— Grantor and grantee— Delivery ot Deed— Third party. As between the grantor and grantee, the registry of the deed transfers the title and possession by relation from the delivery of the deed , but it will not affect the intermediate rights of third parties, not privy to the deed. Patterson v. Tingley, 5 All. 553. iiioi'iiil—KeKistry. A judgment was recovered against C. and a memorial thereof registered in January ISt};} ; in April 1863, land was conveyed to C, which lie conveyed to the defendant on the same day ; in ISi'}'), an execution was issued on the judgment against C, under which the land so conveyed to him, was levied on and sold by the Sheriff, llehi, That the execution had relation hack to the registry of the mem- orial, and defeated the conveyanct; to the defendant. Doc dem Solamon v. Graham. Doc dent. Kerr v. Jamieson, Trin. T. 1871. 'Trespa»i«>— Po!«sos!«ioii -Siibseqiioiit deed. See Trespass II. 15. Qiuere, Whether, where a bill of sale is registered before 4in assignment in insolvency by the grantor it relates back to its delivery. See Insolvent Act 11. Piiysley v. flegan, Qiuiere, Whether registry of a deed does not so relate back to the date of delivery as to prevent acts and declara- tions of the grantor after delivery but before registry, Irom hinding the grantee. See Evidence I. 27. J'li'dipx v, Traeinan. RELATIONSHIP. See Judge. RELEASE. Fraud— SoUiiiK HMinse l»y parties beneflciaily in* tereste€l-Di!>tciiur|Bre of debtor. See Discharge 1 . Pleading Puis darrein rontinuaiicc— Setting; uMidc. See Practice VI. 40, 40 a. Release pleaded -Application to set aside plea uihI release. See Practice VI. 40. REMAINDER. 1117 title bv rtliition . Jamleson, Tr'ni. b4;n<'flci»*'y in- BeleRMV by hiiMbnii«l. Sea Husbanti and Wife — Bills and Notes V. 23. Rel<'a««<' 4'\4>riii<'«l poiidinic trini of ciiiiM(> iniiwt be pleaded. See Pleading II. 32 C. Rrl. .^. V^V.^"^' IMAGE EVALUATION TEST TARGET {MT-3) 1.0 I.I 1^ 1 2^ 1 2.5 m 1.25 111.4 1 1.6 « 6" ► V] <^ /}. f ^l '> > c? ^. / ^, Photographic Sciences Corporation \ #> V '^ :\ \ lV o^^ ^. '^^^ 23 WEST MAIN STREET WEBSTER, N.Y. U5S0 (716) 872-4503 y*7^ f/j ilP' m fm if'' M ' "'IIHW ■ ' i :P; Mill I i 13 ! :# *fm ni III ^I'ir i : r - » V 1 Ik t t I 1 1 ljlllllll , i ' f 1 i f 1 1 1 » i| I ( I I J {I'f util \ t ) I ll L i ■i. :!3 ', ii'". ii^'i:' 1118 REPLEVIN. and after her death or marriage, then to be divided among the testator's children. Held, that the purposes of the trust did not require the estate of the executors to extend beyond the life of the widow ; that at her death their estate terminated, and the testator's children took the estate in remainder. Doe v. DriscoU, 4 All. 176. REIVIAIRrDERniAN. The tenant of a devisee for life may, after the death of such devisee, be ousted by the remainderman without any notice to r it Doe d. Fields v. McKay, 2 Kerr 435. Setting? up ;^dverse pasiicssion ag^ainst. Sec'Etjeci jp 1.3. KEIVIEDV. See Action a^Law. SaspvnMion of— Taking security. See Judgment I. 2, REMOVAL OF CAUSE. See Attorney General. RENDER. See Bail — Exoneretur. RENEIVAL See Covenant 8 — Landlord and Tenant I. 3. RENT. See Landlord and Tenant. REPAIRS OF VESSEL. Detention— Deviation. See Insurance 34. lability for. See Shipping Law. REPLEADER. See Error (Writ of). REPLEVIN. 1— Action— Owner of land— Timber cut. Replevin lies by the owner of land, for timber cat upon, and taken away from it ; and the proceedings will not be REPLEVIN. ai9 get aside, although the party takiag the timi)er claims title to the land on which it was cut ; and, Semble, That reple- vin can be maintained whenever trespass will lie for taking chattels. Lyons v. Goram, Mich. T. 1831. i— Actual or constructive taker. If replevin is brought against one, who is not actively or constructively the ta'cer of the goods, the writ will be set aside. (But see 1 Rev. Stat. cap. 126, sec. 9.) Groves v. Griffiith, Trin. T. 1833. S— PoNM4>Nsioii of goods. The goods mentioned in a writ of replevin cannot be taken by the Sheriff unless they are in the possession of the defendant named in the writ. Wiggins v. Garrison, Ber. 17. 4— Issues— Separate findliigs— Postea. In replevin, where some of the issues are found for the plaintiff, and others for the defendant, each party is entitled to the costs of the issues found in his favor. The postea was ordered to be given to the plaintiff for a certain time to enter the judgment ; and in case of his neglecting to do 80, then to the defendants for the like purpose. Dickenson ^.Ketchum, Ber. 63. 9 Outstanding mortgage— Answer. Though in replevin both parties are actors, the plaintiff is not prevented by 1 Rev. Stat. cap. 112, sec. 17, <'rom setting up an outstanding mortgage given by the person under whom the defendant claims, in answer to a plea of property in the land on which the grass replevied was cut. Baxter v. Johnson. 5 All. 36U. Where the mortgagor is in possession, and the mortga- gee has not given any notice of intention to take the rents and profits of the land, grass growing on the land will be deemed to belong to the mortgagor with the assent of the mortgagee. Therefore in replevin for the grass where the defendant pleaded property in it in himself and the plain- tiff as tenants in common; on which the plaintiff took iBBue, an outstanding mortgagee of the land on which the grass was cut, is not available to disprove the plea. Ibid. ' I' < ''I'', I jti ! -t't' \ ijlii'.., [fl;. I !!ii!.;l!llrli *A |! r i 1120 REPLEVIN. Amending verdi«;t— Merits. Where in replevin the defendant was entitled to a ver- dict on the merits on one of the issues, but the jury found for him on an issue which should have been found for the plaintiff, the Court refused a new trial, giving the plamdff leave to amend the verdict by entering it on the issue on which it should have been found for the defendant. Ibid. 6— Damagres— Counsel fees The plaintiff in replevin cannot recover as a park cf his damages an amount paid to the counsel attending on the execution of a writ de pi'opiietate probanda, issued on a claim put in by the defendant ; the payment of counsel fetii being deemed voluntary. Davis v. Cashing, 5 All 383. 9— Pleading:— Waiver. Defendant in replevin pleaded non cepit, and gave no- tice that the goods were the property of A., no objectioa was made that this defence was not pleaded, as required by the Act 13 Vic. cap. 32, and both parties went into evidence of pro^»erty. On verdict for the defendant — Held, That the plaintiff had a right to waive the pleading of the defence ; and not having taken the objection at the trial, the Court refused to set aside the verdict. Wilbur v. JYitei, 5 All 633. 8— Issne ol writ dc proprietate probanda— Regularity. A writ of replevin was returned by the Slieriff to the plaintttf's attorney with a claim of property; the attorney's clerk, in his absence, issued a writ de proprietate probanda. The attorney gave notice to the Sheriff that this writ was issued without his authority, and that he should not pro- ceed on it, but the Sheriff, notwithstanding, held the in- quisition. JIdil, on an application to set aside the inquisi- tion, that the writ de proprietate probanda was lightly issued, and if the plaintiff was not prepared for the trial of the in- quisition, he should have applied to the Sheriff to postpone it. t'ones v. Caie, 5 All 638. 9— Pleading— Special Property. In replevin for a pair oxen, defendant pleaded— Ist. Property in himself ; 2nd. Property in A. Plaintiff re- REPLEVIN. 1121 entitled to a ver- )ut the jury fovmd »eeii found for the jiving the plain^ff it on the issue on defendant. Ibid. rer as a park of his attending on tlie handa, issued on a aent of counsel fetn king, 5 All 383. epit, and gave no- if A., no objecUoa leaded, as required parties went into ;ie defendant— HcW, the pleading of the lection at the trial, ;t. Wilbur V. IVitM. the Sheriif to the |)erty; the attorney's rtroprietate probanda. I that this writ was [he should not pro- Iding, held the in- let aside the inquisi- [a was lightly issued, . the trial of the in- i Sheriff to postpone [dant pleaded— iBt. A. Plaintiff re- plied that the oxen were not the property of A., but of him- self. Before the taking, the plaintiff had mortgaged the ox- en to A., who agreed that he should keep possession of them till the mortgage was due. Held, That the special property of the plaintiff was sufficient to maintain replevin; and that the replication did not necessarily mean that the plaintiff had the absolute property. Elston v. Vance. 5 All 634. 10 In replevi*^ for a vessel, defendant pleaded — Ist. Property in himself; 2nd. Property in D. ; 3rd. Property in B. The defendant and D. each swore that he was not the owner of the vessel. D. endeavored to shew that it was the defendant's property ; and the defendant swore that it belonged to B., who was not called as a wit- ness. The Judge directed the jury that the plaintiff was entitled to recover, unless the defendant had satisfied them that the property was in one of the persons named in the pleas. The jury having found for the plaintiff, the Court refased a new trial, though the plaintiff had no title. (hirkev. Carey, Q All 187. II Defendant in replevin pleaded property in him- self. He had assigned all his property to trustees for the btneiit of his creditors, but kept possession of the goods in question, and the trustees did not know of their existence. Hid, That the general property in the goods passed to the trustees : and, as there was no plea of property in them, the plaintiff was entitled to recover. Mcintosh v. TListings, 6 All n. I'i-Plcadliiir— Proof. In replevin, the defendant pleaded property in himself , wdP., (without any plea of nan cepit.) The property was owDea by the plaintiff and P. as tenants in common, and 1 the defendant held under P. Held, That the plea was not I proved ; that, to entitle the defendant to a verdict, it must j t>e shewn that there was no property in the plaintiff. God- \iriy. Tuck, 6 All. 870. An application at the trial to add a plea alleging that i plaintiff and P. were tenants in common of the goods^ .,ll REPLEVIN. 1121 plied that tho oxen were not the property of A., but of him- self. Before the taking, the plaintiff had mortgaged the ox- en to A., who agreed that he should keep possession of them till the mortgage was due. Held, That the special property of the plaintiff was sufficient to maintain replevin; and that the replication did not necessarily mean that the plaintiff had the absolute property. Elston v. Vance. 5 All 634. 10 In replevi" for a vessel, defendant pleaded — Ist. Property in himself; 2nd. Property in D. : 3rd. Property in B. The defendant and D. each swore that he was not the owner of the vessel. D. endeavored to shew that it was the defendant's property ; and the defendant swore that it belonged to B., who was not called as a wit- ness. The Judge directed the jury that the plaintiff was entitled to recover, unless the defendant had satisfied them that the property was in one of the persons named in the pleas. The jury having found for the plaintiff, the Court rtfased a new trial, though the plaintiff had no title. Chirkev. Carey, 6 All 187. II Defendant in replevin pleaded property in him- self. He had assigned all his property to trustees for the benefit of his creditors, but kept possession of the goods in (juestion, and the trustees did not know of their existence. Md, That the general property in the goods passed to the trustees : and, as there was no plea of property in them, the plaintiff was entitled to recover. Mcintosh v. f Listings, 6 All m. I'i-Plcadliig— Proof. In replevin, the defendant pleaded property in himself, wd P., (without any plea of nou cepit.) The property was I ownea by the plaintiff and P. as tenants in common, and the defendant held under P. Held, That the plea was not ^ proved ; that, to entitle the defendant to a verdict, it must i shewn that there was no property in the plaintiff. God- ^wiy.Tiick, 6 All. 370. An application at the trial to add a plea alleging that ' plaintiff and P. were tenants in common of the goods^ I" b I 1 ii ' [| !;i : J r t kkj 1122 REPLEVIN. and that the defendant at the time of the replevin held the goods for and on behalf of P., was refused, field, That the refusal was right ; and that the Judge had no power to compel the plaintiff to reply to the plea at the trial. Ihid. 1 H — DainagCN. Substantial damages may be recovered in replevin, though no special damages is alleged in the declaration. Per N. Parker, J., That special damage must be alleged. Firth V. Fitzpatrtck, 6 All 348. 14— Pleading;— Issue. Lumber, seized as having been cut without license, was replevied out of the possession of the seizing officer within fourteen days ; he appeared to the action, and plead- ed — 1. Property in the Crown ; 2m' That the lumber was lawfuly in his possession by the seizure. Held. That he could not, on the trial of the issues, raise the question whether replevin would lie for lumber so seized ; and that unless the pleas were proved, the plaintiff must recover. Also that the burthen of proving the property to be in the Crown was on the defendant as in ordinary cases of replevin. Desbrisay v. Little, 6 All. 392. If replevin is improperly used, an application should be made to set aside the writ. Ibid. IS— Proceedings— Trespasser ab initio. Defendant, an officer appointed by the Canadian Gov- ernment for the protection of the fisheries, seized a vessel! belonging to the plaintifif iu the harbour of Gaspe, in the Province of Quebec, on the 18th August, for an allegedj breach of the Act relating to fishing by foreign vessels, (31 j Vic. cap. 61) and on the 22nd August brought the vessel toj the port of Shediac, in the Province of New Brauswick, bafc did not deliver her to the collector of customs there. Tba Act directed, that vessels seized, should be *' forthwith de-j livered to the collector, or other principal officer of the cq3H toms at the port nearest the place where seized." TherJ was a collector of customs at Gaspe, and at several otbej ports nearer than Shediac. No proceedings having beef f^ IlEPLEVIN. 1123 taken towards the condemnation of the vessel, the plaintifif d her on the 5th September, field, per Ritchie, G. J., Allen and Weldon, J. J., That by taking the vessel to Shediac, and retaining her there in his own possession, the I defendant became a trespasser ub initio, and that replevin koaldlie. Per Fisher and Wetmore, J. J., That l)y the seizure, the vessel was in the custody of the law. and there- fore replevin would not lie. McGoivan v. Hett», East T. \\m. * I ll-§eitinir anide writ— !!)iinimary motion. The Court will not set aside a writ of replevin, on a hnramary motion unless in a clear case. Where there was iome proof of property and possession in the plaintiff, and to connect the defendant with the taking, the Court refused to interfere. Cliff v. Ountcr, 2 Kerr 493. |n-Termination of suit— Assiffriincnt of bond. Where on a writ de proprietate probanda, the finding is llor the defendant, the reple'^in suit is terminated, and the litjlevin bond cannot be assigned to the defendant. \Mh)ck V. (jardner, 2 Kerr 655. |li-Plra— Won ccpit. In replevin on the plea of nan cepit proof that the de- llendant had the goods at the place alleged is sufficient to Iflititie the plaintiff to recover. McLeod v. McMillan, .3 hn 64. I^PI«adin{(— iVIistakc— lieuv<> to witiidraw plea. A defendant in replevin, claiming the goods under a laleand delivery from A. an alleged partner of the plain- pleaded by mistake, that at the time of the taking, the intiff had no property in the goods except jointly with ; leave was given to withdraw the plea and plead property Hmself, on payment of the costs occasioned by his mis- e: the Court rejecting a motion made on behalf of the tiflf for leave to discontinue the replevin suit without ijment of costs, and to order the replevin bond to be celled. Rourke v. Keogh, 1 All. 370. Plaintia^sriKlit—Propeity— mixtures ^he plaintiff being the licensee of Crown land, agreed m 1124 UETLEVIN. 4 to allow A. to cut lo^s thereon to \h> inamil.ictiirfd Mito dcjiln, ami to furnish him supphcs to carry on hiH hiinliir in^', which wore to hi- paid for in »h'als of a spocitiod (juality, (lelivtn'd to thf plaintifV at Kit'hil)U('to. Ileil, i Street. J. dixHcutitntc,) 'i'hat no property in the deals when cut, vested in A. until it waw ascertained what portion of tht'incamr within the description the plaintilT was to retain, and tiien- fore that the plaintiff mi^'ht replevy the whole of the deals from the defendant, to whoin A. had delivered tliein before they arrived at liichihucto. Htld also, That the detVndaut having mixed with thcHc deals others heion^in^^ to Imasdt. wliich he refuH«'(l to point out aiid which cduld not other wifte he distinmiished, did not deprive th(> plaiiititT of his ri^ht to replevy. /''>>■ Hrixay v. Mooiwt/,'! All. ');! IleUI, per Street. .1.. That under the iij^r. emt nt. the property in the UhuIm r was in A. until d.liviTfd to the plaintitV. and that the dud-.' ouj^'ht s.. lo have dir.'eted the jury ; and that the [dainJiA was n.)t eiititlfd under the .'ir cumslanees to repievv the lunilier fnmi the d-ltndaiu. />«n liri.'iiii/ V. Motniiif. '1 All. .">;{. 41 Kr«'a«'li ol boiKl <'liiiiii «>f u«hmI*> \aiii«'. If a inopiirtatr pn'lhiinii, this constitutes a hreaeh of the replevin hond. and . ntitle^ the d.'fendant to an assi^niii.-nt of it. in order to recover the c--»tH of the proceedin-:. /^•^•'/ v. .MitrlnlL '1 All. :;8ll. i^iune, art to the uisposition hy the Sherilf of th.' -'uhU B'. claimed by the dehndant. Ihid. Property replevied was claimed hy the defendant in the name of "Barry" mstead of " Berry f the proporly wus found to he in tlie clannant. and the bond was assigned to him hy his proper name. //WJ. I'hat the mistake was im- material. Il'id. •J«— PI«*"«iliiK E*'id«'iir«' iiii«l<>r pl«'a iioii r«'|»il. Whatever mi-ht formerly have heeu pleaded to an avowry, may, since the Uev. Stat. cai-. I'i.J, In- j^iven m etidence at the trial in answer to th.' .lofence and t tlie plea of mm cei>it. M;iir» v. Smith, \ AH. '101. HKPLEVIN. 1 125 lirojx'rty in pur: )t bond was absigned lo the mistako was im- The defendant in replevin is entitled to damages on a verdict in his favor on the pica of imii repit, if he givea such evidence aw would have supported an avowry under the former law. ll>in\ 1 .1//. .'57:}. '■*• Defendant i:i replevin pleaded property in M., and a seizure as SherilT umler execution against M. Uepli- I'ation — property in the plaintitf. On the trial the defend- ant failed to prove property in M., and a v 'rdict was given tor the plaintiff. Ilthl, That tht; ileft-ndant was hound to prove the whole plea, and was not entitled to judgment i/o/i itJuitdutf. rrredicto, on the ground that the replica*;ion had admitted that tlu; [)roperty was in custody of the law and therefore not repleviahle. (truhiiin v. ll'rtinore, 4 .1//. :i77. <'i-ouii 4'aiiiiol iiiaiiiiaiii iM'|»l«>viii iiimIci- in l:t Vir* 4-»|i. .t:!. S,r llni. \'. MrMuh<„i,\^ All Vl'>. 'i'l^-DaiiiaK*'** •■■■■'y >■<»( l»oiiii«l lo tfiV4'. If in action of replevin, the jury find for ilefendant, oa the pli-a of property, they are not hound to give iiim dam- Hj,'e8, under 1 Uev. Stat, cap 12.liirv not fiii«liiitf oil M4'V4'i-al i«««»ii«'«>i. It is no ground for a new trial in replevin, that the jury have not distinctly found on the several issues, — it being understood that the substantial tpiestion was, to whom the property in dispute l)elonged ; and that the Court might <'nter the verdict on the several issues, acordingly. Ibid. 'i7 -Goods not r«*|»Ievied— Drrlarntloii — Evid«'iic«— DamnKeM. A declartion in replevin charged defendant with taking r 11 ii2t; KEPLKVIN. and d.!tjiininK 500 pim>8 of (K-hIh. -id lutt.K'ks.aiid'in sliip. knees, on tlir Int SfptcmWor \iH\l. PU'a -as to nil ex.vpt !UI jtieceB of the deals /j/./kv/*,/ .• and as to thctn-pio- I>«'rty in defcMidant. Under the writ of rcplovm, the ShcrifT took a railway car load of deals, coiitainint^ ;UI pitas, The piaintitT claimed HI pieces as havin^^ bi'cn taken from liiin by th** defendant, hut only piv.- evidence of 18 pieces in thi' load, as hcin^' his prop.'ity. No futtocks or knees were found or replevied -they havint,' lieen taken l»y the defendant in lHi\r>. It was doubtful. lUKbr the fvidince, whether the Sluritf had delivj'red to the piaintitT the 81 pieces of deals, or only IH pirces ; and also, what hiid be- come of the remainder of the load. Verdict for the plain- tiflf for the value of the futtocks or knees ; and for the de- fendant, on the plea of property, for tlie value of the load of deals. //('/*/ — Ist. That the futtocks or knees, not bavin<; been repl- vied, ouj^ht not to have been ineludoil in the declaration, and that the plaintitV could aot recover tor them ; '2nd. That the defendant had a ri^lit to shew at the trial, that the futtocks, etc., had not been replevied: 8ri, That the defendant was only entitled to (lainai,'e.s for tiic value of the deals replevied autl delivered i)y tho Shuriif to the plaintitT, and not for the whole load: and that it should have been left to tlie jury to determine what portion ot them was so delivered. StiuTi'ti v. Wilson, I /'/(■/. iH'>. «H Id«'iitiArnti<»ii ol |»ro|>4>ri> %% rit i:%-i«l<'ii<<>. It is not necessary to put tho writ m evidence tor the purpose of identifying the pro|)erty seized with that des- cribed in the declaration, h-wiils m v. /v//( /, ;{ /''"/• •^'"^' 49 DuinnK«'M< Where defendant cut lumber on plaiutitT's land without his pyrmission, and replevin was i»roui,'!it niider which plaintiff got possession of the timber cut. //./(/, Hint hi was also entitled to recover sui)stantial dania^' s heyoiiJ the actual loss sustained, if the jury choose to allow them. Ibid. SO— ExpeoMeM caklnir cnrv oi |food«* l>aiiuiK»"«* •" * flnt takinv— C^omplalul only u» to Ihki takiDK* Expenses paid to the Sheriff in connection with the f Itll ' KEPLKVIN. 1127 ki'it i:vid«'iM«*' Bttle keepint^ of property ropleviod are recoverable au dain- agcs. In replevin, wlier* tlu' plaintiff complainw only of the Inst taking', he cannot recover as he mif;ht in treHpass, for damages conseciuent on a first taking, even when the first was iilt'^'al, or the defendant's suhsequent conduct was such as would make him a trespasser initio. McGouuiu V. lidU, 2 Piuj. IH). :tl Kutire of anion -Fi*ih(>i*i«>«« Art :il Vir. rnp. 61. Tile section of the Act 81 Vic. cap. 61, ((Canada Act) requiring notice of action does not apply to replevin, and a plea of want of notice could neither avail as a har to the action nor to affret the action. Ih'id. 3tt— Pl«>u noil 4*4'pif V«>r«li4't upon. In replevin where the defendant pleads non ceplt or cepitin alio /oco the plaintiff' must have a verdict if he prove that tlie defendant had the goods in the place mentioned in the declaration, althougli the first taking was in another place. Ihid. 33- I'oiiiiM'l f4><>M -BooinuK'' UsiniaK**'** The plaintiff in replevin cannot recovt-r as part of his damages an amount paid to counsel attending c i the execution of a writ
    • . pn>. issued on a claim put in by defendant; nor a sum paid lor boomage where the timber rt ph'vied was in (diarge of a boom company, where it was placed for safe keeping, that being a charge, which he as owner, would be liable for at all events. Davi>i v. Cnshimi, 5 AIL 042. DaviH v. CitxhiiHi, o .1//. IW:}. 31— Fl(>udiii{{: Oiiii!>» ol proof. Lumber was replevied out of the possession of the defendant who appeared to the action and pleaded, 1st. Non fcpit. 2nd, Property in the defendant. 3rd. property in W. E., and 4th. propt rty m the Crown. Held, 1st. That the plea of non cepit only put in issue the taking, and it was sufficient for the plaintiff to entitle him to recover, to prove that the defendant had the goods in the place in which, etc., and that the onus of proving property out of the plaintiff was on the defendant ; and 2nd. That tbis was equally the 1128 KKIM.KVIN. i':|.!| 1 '\ caHf whtTP tluTc was u nlt-u of iir.ptrtv in the Crown. Oijili'v V. H'Uiriii'oiM, '1 Pii'i. ;{(»."». 11.1 l>«'lik> ill i*i*>iiiiitf ««rll «l« |iro|». |m'oI». Onlcr of Jiultfr M4>% «>riil «>liiliii«. Pari) niiiiltMl to rliiim. I'lKltT It writ of roi»lfvin isHm-d aiiinst (K'li-niluiit. tlio ShrrilV rtci/.twj two rafts of Io«^s in tlic iiosscssion of II,, an I one in tlif i>osh» ssion of S. Sriiaratt; daiius of propcrtv wore put in to tlu* whole of tlic loys Ity IF.. S, and M.. n - Mpcctivcly. Plaintitf diii tiol i.ssuf ;i writ '/«/);•«»/). /i/m/i. : ami aftir a ('onsiii('ral)l»' time liad er Allen, ('. •!., and Wetniore and DutV. -I. .1.. W'cddon. .1.. ilixi«'i|ii<>iitly broiiKlK* In an a iion of replevin the defendant put in a chiiiu oi <)roperty, and plaint ilV is>iied the writ '/<■ />'"/'. /""''•• '"i which the Sheritrs jury found the property in the claimant, i'laintiff thereupon discontinue.i. and hrou^'ht trover a),Mnist the defendant in the replevin suit, and another person. It was ohjected that plaintilV could not recov.'r, us In was bound to proceed in the action of replevin; but, //'/'. l>f- That the findiuR of the Sheriffs jury in favor of defen lant aid not divest plaintiff of his property in the lo^'s. but siin)dy determined the right to the i>088es.',ion, and was uotonHii- IIKPLKVIN. 1121> » ■!'*■ tv in the Crown. ;ui W put into pro- hut the on* out of l|,v till' Shi'i-irt" can ol jiin iiilnvoHi' |it put in ;i claim oi •tA-iutlu'i^lii'i»i""'- inotht'i' pt'isoii. lf!iv<)r ol ti jthe loj^s. l)ut sunp siv( as to tlio property, 'iiul. (per .MUn, C. J., and Wel- il.m and Finhor, J. J., Wetmorc, J., (Jlimnitifiitf), That tlioii^lli by tln' Uov. Stat. (Mip. 1*20, In; mi'^lit have proocedod witli th»' replevin suit, and declarod in air\ form as lio . liosc. tlif Act did not take away his coninioji law rij^'lit to iirii)f; trover for tin- eonverHion of his property after the in- quisition, (tilmoii V. MrKion tunl JiinuUdph, 8 Pidj. '21MI. :IT- Movri'iil «*liiliiiHiit*t - Mlicrlfl'w rotiirii Kivnini; of clHiiii l»> iilloi'ii4>y of rlnlitjaiil. Ill a replevin suit, where the Sheriff retu»"ned the writ, with an endorsement that three persoh (naming them > I'laiined propertv in the ^oods replevied, an application was made to the Court, hased on atti'' ivits. shewin^ that -.eiuirate claims had been put in 1»\ the jiarti^'s named. ■wA the Court was asked to set aside all . \cept the first claim tiled, hut as the SheritTs return sht'we(\ oulyoneia joint > claim, and he had not asked to aniMid his return, tlif iipplicatioTi WHS refused -no opinion heinj; exoresaed upon the point as to whether several elainis of property can be received by the SheritT, or whetiier, as soon as one claim is tiled with him. he is bound to rc^turu tie- writ. Sriiililf, That a claim of property si'»ned by the attor- luy of the claimant is suthcient. l\IHx, AxHiiiiier, .(*•<•. v. Murniitii'ii. 8 /'»'/. T) 12. :tM l*l4Mi«liii|c fNio|»|»«>l K«>|»i'«><«<>nfalioii. In ie|)leviii. phiintitV mav shew, the same as he mi^lit in trovor — that defendant by his acts is estopped from •Unyinj^ that tin- property in question is the plaintitfs, ;ui(l if the alleged estoj)pel is /// jmix. it may be relied on iuividtuee without beijii; pleaded. A mere representat'ou "t a fact will not amount to an estoppel unless it was made with the intention of inducin}; another partv to jut I I'on it. and he does act upon it and alter his position. UiUmi v. Fn-derirtoii lioom Co., 2 /'. .(• li. 165. :(A V<>rdi4*i tor |»oiiloii of propt'i'ty FiiidiiiK of Jury lor |>iirt. I'laintitT declared for the allefjed unlawful taking by ilefeiulaut of (JOO logs; but the jury only found the plain- 1 i n^o UK ILK VI N. tiff entitl. <1 to I")!). //*•/ii on <>\«M'iilioii <'ltiiiii ol' |ii'o|»4>riy. Wlicrt; plaint ill" replevied from defendant ;^u()ds wlijcji the latter had levied nmler an execution for taxes issueil a^iainst plaintiff, and defendant put in a oliuni of siKcial propertv. upon whieli a \vrit of ' ( 'oint set aside the in(niihiti(iii. iioldiu;,; thai, the cluini o( |ir.)[)erty and writ '/- /""/'. jiroh. Wert' not a})plical)le to such a case. lirunii,! \ KranirL. I /'. .( /;. ;i. •II 4 III i HI ol |»ro|M'i'l>— Piii'iy 4>iilill<'4l lo cisiiiii. IMaintitf as as.si;^Miee of the estate of an iiisolveiit, replevied certain <^oods, lirhl, that while the sheriff still Inni posKession of the property, and hefore its deliverv to tiie sherilT, sec. \'l') nfthe Insolvent Act would not prevoiii a claim of pro[ierty hein« put in under the lieplevin Act. No person hut the defendant ithr person out of wluse poBsewsion the ;,'oo(ls have heen taken' can put in a cl.iiiii i»l property in replevin \''niii. \ H 22.-,. 'I'liird iMirly rliiimiiiK iMopril} %-Mvvl of :i*.«.iuiiiMeiil of lloiid iiimI i'4>«-o« 4>i'y. Ser Jiond C. 2H. W'Inrlcr v. Stncirf. 11 l*ro|»«*i'l) no! r(>|>l«>viiil»l4'— Pni<*li«'«>- Where (lefendant in repl-vin wishes to rais. tlit <[nv^- turn that the property replesied was in custody of the law and thertdore not repleviahje he should apply to set asidt the writ instead of plead in^ it as a lUdenee. //«/'(//;/'"" V. ( riiniiiinl. H /'",'/. l;")!. l:t ln«tiilH4'i4'ii4')' 4>l |>l4'ii. Where in a declaration in replevin plaintiff alleH that UHPLEVIN. 1131 jhiintilT's caiisr nl . (It'tVntlmt was 4'iilioii 4i»iiH ol ViKiant ;;uihIs wliit-li tion tor taxps issiu'«l in a (.-luiui of siucial ,,j). jinili. issiud, ami i-,)l..i-ly ill '1'*' *'l"'i"- asiilf til.' uHiuiMtioii. a writ '/' pi"!'. /"•"'-• llrit'tiiil V Krunii'l. 4>«l to <-lai**i- ate of an insolvent, vhilf thr sheriff" still l.rtort' its a.'livery to a would not prevent It the i;.'pl«'vin Aet. ,M.rson out of wlhise ,, c-an put uiaehiiia |s,sw,(.r ,(<■., N.>/"i'- <«.••/. h'IH'«'- lios to rais. tlu '[W^- i„ eustoay of the laNV nia apply to set aside aefen.e. //.."<«:/'"" L laaintitTalU-^eathat tilt' (lelemlant took ana unjustly detainoa plaintiffs proper- ty, it is no answer for aefendant to pleaa that the ;,'ooa8 nere in jioHsession of C. and that defonaant took them imaer an execution aj:(ainst him ; or undor an attachment issued under tlie Insolvi nt Act. Such a pha neither traversinR, nor confessing' ami avoidinj.; the plaintiffs ; llepation. IIi'kI. Sfiiihli', that the lindin^,' of a jury under a writ 'Ic prop jiiiih. in I'avor of tin* claiuiant is iu)t ronclusive, and plain- tiff may issue second writ. Hi. 4'o«»l*« liiMM'tiiit; iiiiii«'4'4'H«.iir> «'oiiiii%, <-4»«>ts ii4»i illl4»\V4'4l. Si'c costs 120. III. II l*l4>a iilaiii- liir«> aK«'iil. Defendant jturchased lumher Irom !>., who claimed to ill' the owner. In replevin hy the plaintitT, who owned the huuber, the defendant cannot set U[» as a ilefence that I). Iiad authority from the plaintilf to sell the lumber for a cer- tain price ; the defenaant in ])urchasin^ having aeaii with I), as the owner of the lumber, and not as the plaintiffs iif^ent. IhdiH V. ('iixJt'nui, r> All. :J8;{. Hi -Kivlil to b<'Kiii ^«'ltiiiu: a««i4l4> iii4|iii<«ili«»ii. On the trial of a claim of property in replevin under writ (/'• iim, j)ro, the claimant is the person entitleil to liej^in. The Court has power to set aside an lUiiuisiticni in re- I'lcvin, found under a writ -/'■ pro. pro. Ii\ •i i'. .(• /)'. 'H\, ll |ir4'«>i:. OmiH of provin;^ property as stated in tlie pleas is ou the defendant, and he is bound to begin, (iriddim v. Wi't- iiitirr, [ All, ;\''i\, 17 Wroii»;l'iil takiiiK -'rriivri-*»4' 'il, iMMTo^aty. In rtipleviii a plea alleging that at the time of issuing and 8(frvice of the writ the go )ds were not in ilefendant's possession, without trav»!rsing the wnmgful taking, is bad. UMli RErLKVIN. i 4tl- Dihir<>*.<« lor n>ikt-<'liiiin by liiiMlloril. Tlif 1 H»v. Stat. cap. 12(), sec. 12, allowing claims of pro- l>trty to hv put in in an aotion of rt'i)levin, is not applicable to casts of distress for rtnt. .SV<' Distress. liourk v. •IW .'VIoiioii lo «•«'! ii«»i4l«> ui-il— .lliiitorol'ilrfViKr should b*' pl«>ii«l4*«l. Tilt' defendants heinj; (iovernnient contractors for cou- Htruttin«4 a portion of the Intercolonial Railway, employed 8nl)-contractors to cut railway sleepers for them. The sub- contractors went on plaintiff's land without his permission and cut timher for the defendants. An action of replevin bein^; hrouf^ht the dtfendants moved to set aside the writ on the following grounds: Ist. Defendants had right as (lovernmtnt contiactors to cut timher anywhere for rail- way i>urposes. 2nd Misnomer of one of the defendants. .Srd. Defendants not the proper persons to he served, not heing in possession. lit hi, That the 1st and ih'd objections would he defences to he set up hy plea, and that the writ could not he set aside on these grounds. ///7r/. also. That a ftfendant may he stied under a name he is commonlv known by, thcmgh it is not his proper ruime. Ihirhlxoii v. Kiti'i, 2 /'»'/. T). .10- »b«>rin*o iiirv. 4'oiiiii> 4'oiirl. In r.'pleviii m the County Court seven is the propel number of jur.MUeii under a writ dc pro. /*;.». (ireiiort) \. Mri,>ii>i,h , Al'ihi. 1. ^.S,v now Cousol. Stat. cap. to. sec. 15.) !>»«'rvl««' of uiil b) Kh4>iill liiK'ivsl »* lii«*p«'«lor ol 4*«»|HI«' Writ «*4>1 llMi4l4>. See Sheriff :n. l\i\nvcather \. S'firrx. l\4»ii I4*iiull rraii4l iiiii> b4' ttivvu in 4'vi4l«'n«e midfi pl4>a of. N.V Landlord and 'I'euant VII. 7 MrL'odw .U.^uic/.. f>r4*«.<.l%4> fln4liiiK of |ur> :*4-w liiiil oiU« liiinM'll-KiKlil to ha%«- vridlcl loi ii4»uiiiial 4laiuaK4>*» Po*»l4>a. See I'ractice VI. ryl. SWevex v. iniaon. UKSIDUE AND llESIDUAUY LEGATEE. 1133 ol «lt'IVn«e slioiild I. Slat. cai). -45. Bee. 4.vi(l(n<« •«"«>*'' « have v..dU«'«' ,4|»|>li<'sili4»ii to ii«la on trial— J ii dye hns no |»owei' to 4'osiipcl plaintitrto i'4>|»By at trial. S';- Siii>ni 12. Dviivoiy ori;ooH<>«ioii— Plea — Keplieatioa. Str Pleading II. 28. Pawnee may maintain replrvin aKaintst pawnor. Sec Jiailee Former recovery— Evidenee in former action. Sci' I'iVidence 111.17. JuwtiecX I'oiirt -Kemo% xil ot proceeding** in replevin nol by review, but by certiorari. S«). KEPLI]VI.\ BOND. See Bond I. ('. KKPItl^It^E'VTATIO^. " Warranty. " Deed — Higliway. REM^IKDimC.! COVrKA< T. *' Action at Law — Statu. Quo, KESIDiri: A:%D Ki:«ilDI'iKV LEIiATEE. *• Will. M ii;u REVENUE ACT. ill^ Ki:MI>0!VI»i:AT Ml FKKIOIt. .S**'*' Action at haw \\. Kf:V| ITITIO^. WRIT or " Landlonl and Tenant VII. '>. <;. — 4>l VOO«l*». Sec Criminal Law. Ki:««TK%I^T or TIIAIMv " Contract :{:;. Kr*«iiliinK Trii*>i. Si'f Trutst. iti:T4i:M:K. " Attorney. iti.TI KW. f% riu -K\<><-iilif>ii«». Si< ExecutioJi — I'ractice. KEVK'M i:. " Attorney General--Cu8toni Outits— Ciiminiil I/iw II. lU. itF%i:.^i i: A4 T. See Criminal Law 1. I). I'nder lilt' Provincial lievcniU' Act 'S Vic. cap. 1, nun not he in j^' of the jiroot of tw^nty-Bix by the InibMc is not liable to tin- hiitcitic duty tlu.'rt-by imposed ; the words of the .\ct licin;^ unambij^'iiouH, tln' knovn intent of the Lv\:(\^- lature to imjiose tin- duty cannot be regarded. Ilitminoinl V. llnhinxnu. '2 K,rr 21»r>. By the Aort ol entry in the I'rovince, shall be seized and forfeited*" etc. ILU, That spirits iu casks less tlian one iiujidred gallons were liable to forloiture, ■i W'W. 1 iiH liEVIEW iiBr>. I OK. Ol' \i>r. itics — Criminal Lnw t a Vic. cap. I. nun ty the l)ul)liK' is iwt )()8cil ; the words of intout of the Li'i^i^* tardea. //'('"""""' npirits shall be im- si/.t' than to con- thim (lecko'l vessels aiul all spirits im- he Act, or that ma,\ lan thirty tons rt-i>- ouehunilred gallons u the Trovince, shall 'iittt spirits in casks " liahle to forfeiture, though the ve8h«l in which they were imported was ovi r thirty tons register. AtUniieii Gcucnd v '20 Cntiha Sjiiritx, •2 All. 457. KEVC:>iirE OFFK^EK. Sec Criminal Law I. 8. KEVFKIJi: LAWS. A vessel fraudulently land in «» rroods hv means of hoats. shall he legally intended to have come into port under the revenue laws. Statutes relating to the revenue are not to he construed as Penal Acts in proceedings against persona for smuggling goods into the Province. Attnrne}/ General V. I'attif^nn, ('. Ms. 16. KEVFRJiilOlfAKV i:\TEKE^T. PlaintitT leased cattle to T. for ten years, at the end of which time T. was to give up the cattle or others in their stead, in as good condition as at the date of the lease. Ihld, That the plaintitl' had no ahsolute reversionary interest in the cattle, and could not maintain an action on the case against the SheritT for selling them under an exe- cution against T. during the term, (ioixl v. ]f'iiisl(>i(\ 4 .1//. 241. K K V i: yi'r I .\ U F KO I* K H'V V. See Shipping Law (I. KKVIIIW Sie .Justice of the Peace II. Where the general ground of ohjection is taken in Court hclow and yet the true reason, in support of the oh- jection is not advanced, the Counsel on review should not he prevented from urging other reasons an I principles. Ki'iniiilif V. Tunihidl, 2 Pi(iri<>.li <'oiirt fiiaiiio riKlH of r<«vl ol. On review, hefore a ('ounty Court Judge, of a judgment fWH ': :•;? 'H! 113« REVOCATION, «I)taiiU'(] in a .luHtioe's Court, several alH.lavit^ w.r.' pro- retnrn and tin; alhdavit provided lor in section H. Qi(,< If, Whether the Snprenie Court has unv control over costs taxed hy a .Judj,'e of a Connty Court in a rtvitA- i-ase /',■./ iiiiitf ll'rUiu^, ;J 1*11^. 'IIH. K<>|>l<'viii. The proceedini.;s in replevin hefore a .lusticc of the I'eace nndi r the Act 1 \\m. IV, cap. 0. cannot he removed into Supreme Court hy an order for ri-view as j)rovi(i"d in the Justices' Act 4 \\w. l\ , <'ap.4o. Tiie mode ol n iiiovul is hy iirtioitin. Tlie jurisdiction hy review cannot lie ex- tended to ca.ses not named in the Act i Wni. [\, cqi, I"). A'istiH V. Hi,irtll, I All. r)\H). 4 4»*>l«» \%li4'r4' no fiiil*»di«-ii4»ii ■S«( ( ost.« X , same case. fail) 4»biaiiiiiitf oril*'!- fur r4>vi4>\v lias llie ritflil lo >><> Kill Hi ili4' li«'ai'iiiK. Same case. l*ro4-«>4>tliiiK'* >»> r4'vi4*\% iioia|>|»li«'al»l<*io <'iv'if •■■ ''»i To%% II ol Porilaiid. .s<.' Tortland (Town of.) H«>%l<'\% ol JudK*''****!'*!*'!'' .Set' I'ractice V. a -/. Taxation ol 4'oMh. Sff Coats. KK%'0<\4TI0>. Sir ExetntovB and Administrators. " Arhitration. JiE VOCATION, 1J:}7 iH ili«' litfhi I" •»<- Ol proviMioii*> in u ill. See ('ontract 14. TriiNfcr— Kcvoralion of niitliority ot. F. died in the latter part of .\u};nst, 1S7(I, intcstat.-, having liislife insured in tliesuuiolsoooo. "to In- paid to M. (tlie plaintiff) his wife, if she should siu-viv.; him: if not, t.) the children of the assun'd. or their Ic ,'iil ic a-.'sciita- tives." On the UUh SeptfiniitT followiiiL;. |>!:iinti t .'five defendant, in writing, authority lo i-ollc-t llie insurance and use it for the |)ur[)o.st' of |>i.\ 1114 the d iifs of her hiis- hand. SuhsiMpiently. on the Kl'ii St'|iU'iiil»cr, ilchMidant not heins satisfied witii the previous authority, procured a deed poll, whereby the plaintiff assigned the i)olicit'S to him in trust for i)ayraent of the remainder to plaintiff. Two creditors were ahout taking steps to attach the policies in tliu United States, when hei-ig informed by the defendant of the assignment, they, at his reipiest. took no further pro- ceedings. On the :J()th March, IST'i, and before defendant had paid over any money in i)ursuiin('t; of the deed, plain- tiff signed a revocation, and through her solicitor, made a i>«M'«l < OII«>||||4-|ioil. S,r Drcl V. I. ICK^IIT TO lli:4,il\ K<>|»l«>viii. OntiH of provinj,' pro.crtv as statt'd in tliu pk-isisonth.' drffiidant and li ■ i-^ luiiiml t.i hi'^^in. (ir.tlnun v. \Vdm<>r,\ I Ml. 878. On trial of claim of itro|irrtv iiudtu- writ '/• en*. /)/".— tlu claimant is tiic pj^rson cntith- to Ix-fjiin. Stw Hcplrvin 1"). l*ro<«>r«liiiK*« <»ii r4>«i«>t\ troiii .Iii«>ii4*4>s* 4'oiirt. .S''< i'nitiir XIV. '1. Kiptiriiiii |»ro|>ri4>|oi- KiKliio of. \ riparian propri«>tor whosr land is iKunidcil liy hi;.;!) V iter mark lian tin- ri^lif to an unohstnictt'd iicccs.s Iroiii li land to till' navi^al>lt' wntcrs of tli'- arm of tlie se;i whni tl. ti«U- is 111), '^"'' fl»oii^'h tlu' tilK' to the shore is iti thf f. wn, he ha8 th»' ri^iit to ihr unoh.strticted access from hi.^ laiul on the short; to th' navi;^ai)le witt-rs of tlieiiniMf the sea wlu-n tin- tide is out, and ran recover dam ige fro. a any person who intcrferts with or injuriously affects that right or the exercise of it. S. erected a smoke hoiHc 1' twet-n high and low ^^•aters nnirk, opposite 13's hind, an I near lis store. The smoke and olTluvia from the smoki- liouse injured B"s j^oods and int-rfereil with his husiiitss. Held, That 13. had a good eau-t.t of action .i^'ainst S. for th injury .so inflicted. Iii/r<>'i v. ,S7r,'//»s- ot, I /' ,C- B ()'><• Kivfr:ii. IligliitHy -ObMirii«-iiiiK- DHiiiuvt'. iSVf Action on the Case 1\'. SAINT JOHN (CITY OF). IUV.> tli< amount"- \y,\u\ <. Ih. 1^ II tho pK' H is on the ir.ihiiiii V. Wdmorr, ■ writ '/•• ;»/•". /"•"• — •l^in. I'*,' <"o ouii- is houua.a i.v hii^ii •ucti'il acofss li'Oiit anil of tlu' sfii wlun n- slior.; is m tli.> nic'tfa access from \v,iti-i-s of thoiinuof L'cover (lam igt; fi'on riously affects that a smoke liouso 1' - ositt' B"s liin.l, aui via from the smoke with his hiisiness. )u .L^'aiust S. for tli I /' .t- /> cii;. Ornnt bound<>d by riv^rroiivi'yM no title briow iiiKli watrr iiiiirk. Srr Crown Grant I, IJ). Whiirl built on iia^'iytibli' river. iSVr Action on the Caso IV. 8. Erection of'diiin KiKlit to de«>tro>. iSV<' VVattr Coinst'. KOAD. " Ili'-hwav. KOAD MAKTilK. •* Credit. KovAi. i:\STitr4;Tio:\fii. •' Crown Grant HI. 2. KIMl r4»lt BOI>l. '• Practice VIII. o. ki'm: or <'oi kt. Rule of Court not a recoril. H^f^s■» neeeM to make a rule ol ('ourt before it ean be jitet a*>ip. S»r City Court. l*«»u«>r lo iniik4> PilwliiK** K«'KiilHlioim. .S«'«' I'ilotHRf. ^'orporalioii of Mitliii Joliii l.iiiiiiliiK pounio iiiiikr hy-ltiu«i >io riKhl lo do wo. .S«y IJy-Law .'>. I^i<>i>ii4'«' i<» M'll lr<>«»li iiioiil <'oiivi4*iioii aK»in««i Ircc^ iniiii of 4'iiy. *S'«r By-Law. Uiibllif) 4»f 4'4»ininiil4>4> t4»r «*aliiry 4»f pr4>ii K4'V4*«»iiiiK 4»f |»ro|>4>i'iy. .SV«' Shipping; Law ('». Aftr4>4'iii4>Ml tor ••Hl4> 4»f •»iniii4l4>«l •>lii|) >o |»r4»p<'i'iy pn*t«tiiiK. See Sliippin<^ Law 7. lVotl4'4> of'«iai4' Ity p4>*>t4-i'«» aii4l a4i%4>riis4'iii<>iit. Set; Executors aud Adiniiiistrators V. li. J*laiiiiifl pui'4*lia*»iaK al a •»al4' aii4l4>i- 4l«'4-r4'4>. Sfc Etjuity 10. A*urrhaMlnK 4>qiiily 4>f r4>4l4>iii|»ii4»ii. See Mortgaf^i' 17. Arlual n<'llv4>i'y. See Dtlivery — Contract. Pou'4*r 4»f *>i%iv ill M4»i'itfaK4>~.4H*>iuain<'ii( Si'e Mort},'a{.;o 1:{. Mal4> of WliarfaK«* Wiiii4>ii 4*4»adition«— V4'ii»al ••laK'- Hi4'iil by <'l«'rk«». See Evidence V. H. -fiair of vcNMofl by Joint 4»\%'ii4>r!>i— Joiii4i('r ia tirfioii for kliure of |>ro4*4*edM. See Action at Law \11L -fW- SCIIIK FACIAS. tur 'root Piiif'iliT. K |»o%«(>r lo miikr lion a)(iiiii*>i ln>«>< »lii|» !No iinMM'ilj is4'lll«>llt. ,ii«,_Vcrt»al ".lulo- il4>r in anion lor i^alr of SliHr«'%. >V( AsSt'SHlllfllt I{*. " Sliii)[»inn Law. " Siispdisioii — Accord and Siitisl'action. Kniry of. of JiiclHin4'iil. Sre Sheriffs Hiile '1. JndKHioiit aKuiii*»l Mis«'i'ifl. Si'r Trespass III. ;'>. TaiiinK l>iii of «'\<*liaiiK«> for «l4'tii. S,r Bills and Notes V. 2!». HO, lil. " .ludgment 1. 1,2. Wiiotli*'!' i>iil oi* iioi«' lak4>ii H!* A qii«olioii loi'lhi'jnry. St-e Kvidenee \I1. After on<> JiidRinciii *>ali*>fie4l, it i*> i4»4» ial4> lo b4' «>4'l 4»lt aKaiii«>>i another. S)'r Set-off 7. >«'Ii:ntkk. " Evidence III. ;Wi. " I'ractice IV. H— 9, VI. 48. Every writ ot xrire hiritts should state the particular tinuuistance which entitle the party to the remedy sought to lit (ihtained. .\ny matter which mi^hthave heen pleaded ill tlif original action caimot he pleaded to an ordinary xrirr hu-iiis under the Statute of Westminster. A party can oulv have judgment prayed for in his sriir/dCKiH, and such .ludgnient will not he avaihihle to give him an e.>iecution against a joint dehtor not brought into Court in the origi- nal action, or under the .\ct of Assembly 2G Geo. III. sec. 24. Semble, Tluit the pleading to a mire /ncias, under any Act of Assembly, would be governed by the same rules as under the Statute of Westminster. Johmton v. TibhitH, l'>n: 855. w ; ! 11 \1 .SKtOND ACTION. Sit' \Vitn»'8H. M II4MM.W. " I'arisli Scliools- ('(Nnmon Scliool Act. " AsSt'MHlIlt lit II. ^'oiiiikf'lliiiu ti«»<»«'^^iii<'iii l<> «>tili«kl> .lii«l|riiiriii. S' . Mimdmmis IH. *i< iiooi. i>«i>i*i:rioii. " ('ninnu)ii School Act. ^rii4M»i. rr.iriii.ii. I>i«»iiii«.«.iil 'l'iii«»i«T<» liiliiiliiiiiiiiH l.iiihilil). A licensed school t»'Hciit'r ciiiplovcil hy tin* iiiliaiutiiiits i>l' II school (IJHirict, with the as.scnt ol" the trurttccs. iiiidor the provisions ol the l'an.>>h School .Vet, d Ucv. Stiit. cii[). V,)) can i»nl\ he iliNimsseil (luring' his torin ot eni.,'a'.,'t'iiiLiit. hy the trustees ; uuil il' th- mhahilanls e.V(;hiiit' liiiu hoia the school, wiierehy he is prevcntt'(l from obtainiiij,' the provincial allowanc- uiiiler the Act. liiov arc liaUf ia an action t)n the case, ('omtoi v. \\'ii:\ri:. .St> iividence \ I I . •«i:4 oM» %4 ri4»>. •• .\ctioii at La >v \lli. l''oiiii r li'i'i'iiviiy. ^lii) iiiK i»k'o«*4'4'4liii|i:«« ill. i'rocee.lin^^s in second action for saiuo cans.' will be stayed until the costs of the Hrst action are paid, wborc the plaintiffs conduct has heen negligent or vexatious. /vV"- hvththit V. Mi'Kenzi>\ <'. Ms. 41. ^tiiyiiiir pro«'f«'«liiiK**ii»i'"i''iii <»<<'<>*«(*•<»* |»n>vioii<> aciioii. See I'ractice VI. Hi. Ejectment IV. ">. Where judgment quoni non-suit was sigued a'^'ainst SKAUCH. 1148 ol r««*t». ol iMTvioii* was si^'iitnl a'^iiiii^C jiIaiiililVH for iM.t pi-ocMMulin^ t<» trial pm-siw't to notice, and lif iilttrwjirds Itmiii^lit a Hccond action for tlio same causu, it appearing,' tluit i\ir plaintitVs conduct was not vi'^catious or ncj^dif^i^nt, l)nt that In* was provontcd tVoni procutMliuir to trial under circumstances which would if shewn to the (oiM't havMhoen sulhcient to have i)reventijd the ^'rantinj^ of the motion of non-suit, the Court refused an application to stay i)roct'e. itl'IIIOVill <»l |M-4M'«'4>«lilltf«. .SV' Ceitiornri I. I. %r.\ ««iioi. 9 iiii«l<'i' M<>iil. .Sec Principal and Surety 1. l'on>i|{ll ill«lKIII4>lll M4'ill 4ll <'4»llli — l*l'4M»l. ><(■ .ludgnient 111. l.t'iU'i*. ol adiiiiiiiMralioii iiim'U not Im' iiiMh'i- |iiirli4-iilai* *>(>al. •SVr Kx'jcutors. etc., IV. '2. J'i<'4'UM' to 4*111 liinbi'i'— :\4M'o«»*«il> ol*i«'al. ^'ct' License o. 4'orp4»ral4' 4>i' |>rivat<> •«4>ul 4iii aekM4»\vl4'4li;4>iii4>Hi <»! 4Ml ill 4iii'4'al Brifiiiii. Sue Deed I. '28. mi:akc:ii. Eor |>ap«>rN. .SVf Kvidence VII. 15, 10, 17. —For \vitii«>Mw. Sec Evidence Vll. 'i'i. l^B^ f«^« I II n SKl'AHVTK IM'vOl'KirrV. Srr Justici' of tlu' I'lJU'O. Ki'i'piiiK in i'<*|>iiii' Uabllity. >>,- ('.triioration '2:i. " Insurancf. l>«>ti»lioii ill voyiiK:*'— Kiylil to <«ii4>-l.iahilit.v ol p:* <»\t ii<>i- of v<>«i*>4'l f4»i' Jiii-i«»di4'iioii of'.limti«'<> old l*«'a«'«". N'*' vSiiijipin^ Law !t --Justice of the !'( aee li. :{. <'li>iiitf4> 111 o\%ii<>r«ilii|» 4>f vi'«»*>4>l l^iabiliiy tor \vsiur«. >* . Shipping Liiw IT). Ni:^ 4»:\il> %l*l*l.l< ATIO'%. Cerfiorari Aiii«'ii<1<'«l altifiavil*>. .s«'t Crrtioran 111. i;{. [Vlati(laiiiii*>. Set I'rartici \'. 17. *»i:<'l KITV. Pier priiit-ipal aii«l mir*'!) ~«all«.la4lion «ii«.p«'n*.ioii < r<*iH«*ii:4 I KIT! I'4»K rOM'l>i. " CorttH. Mi:e>i 4 I' 10%. An action cannot bi- maiiitaiued bv a father tor tl ht-auction of bin iluU|.btiT while she is hired by the moni in tlje service of another person ; thouf^h the father noeivt lier wa«e8. and was oblij^tid to maintain her in conse(iiu'ni of her pregnancy. (Uitchie, J., hegitante.) Simpson Heed, 4 ML 52. ^iKFAKATf: PKOPKKTV. Set- HuBbanii and Wife. ServHilS -M«*l|llKen«'««. See Master and Servant. SET-OFK. 1145 lion »»ii*.p<"''»«" "• led hv a father, tor til- ls iiin-a by the month ■K.iitrhthr father ri'oeivol litain her in conseiiuenf- h.'sitiuit,'.) Ni"'P"' '• S«>l Vi«'4' Ol |»il|»«M'<>i, «'l4-. Sfi' I'nicticc 1\ . Ity |iiil»li«*ali4>ii. ,V<7' liisoivt lit Act '2:5. ^r/r-<>ri\ Knliirtioii I'ayiiK'iil or •«4*t-otr. >V(' Costs 1. H, I Aki'«m'III4*iiI I<» h«>i 4»fl' .lii4lKiii4>iit as«>i^ii4>d. A party taKiuj; an assitrmnent ot' a jinl^ineiit afler notioc that the assi„Mior had ajJireed with the dofi'udant to Bet (»lT the amount a^'ain-^t a judf^meut recovered hy the (lefi'iuhmt a}.:;ainst the assignor, is hound hy that agreement ; ani V. I httJh'trdii, 'i\ Kerr tiU'i. *i-lti;ilil 4»l ««4>l-oll \4liiii«i««il»iliiy— A«liiiiiii<ili-:iti4»M I»4»ii4l. in an action nf di'l)t for th(> pcnaltx of an arl)itration bond, in whiidi tii<' phiintifV assigns as the only hreach the iu)n-piiyni('nt of a certain liquidated sunt awarded hy the arbitrators to he paid fo him hy the (hd'-ndant. a set-otT niiiy he [)leitued ; and sn(di s.t-otT is pleadahle to the sum BO awarded, and not to the i)'nalty of the bond. Shinf v. Wihnii, ,t ,(/., i:,r. :!!ln. 4 In assumpsit for supplies ami advances; the de- ftiiilant in order to meet tlu- amount })roved hy the plain- tills and to claim a balance, gave in evidence a (piantity of lois delivered by the defendant in 18-10, to B. v'v Co., with the assent of the phiintitfs, t > pay a debt due from the phiintitls. to 1>. \ Co. ; in reply the plaintitl's shewed an a^rreinent between tlu' defendant and li. & Co., stii)ulating tliiit tin- logs were delivered to B. & Co. by defendant, 73 n It; SKT-OFF. n. \ Co. to j^'ivr the (l.f, n.iiint *2()s per tllotlHMnd. the dr- t'cndunt to |ia_v tli( plaiji'itl's tliroiu'i 1',. \- (',,. ;,iiv amount justly tin.' l.\ tl.tcn.lant to pliiiiititfs. ,iiil -nim|iii},'t' t'> !>• A- (\k, ini-l :iii\ l)al;mrr ,iu,. .-il'tfi- ' iiccoiiiit. liui not t.t idaini a lialiincc in the w,i\ of sr|-..tV. // //. Tli.ir tin' diivclinn was ri^'nt. \l'ii>i>.',, 1 .1//. n*M. a .Iii«Ikiii<>iiI < «»iiiiii4-iic<>iii«>ii| oI suit. A .Iud;.;inint r< eovrn d liy the d. I. iidunt against the |ilaintity after th.' coniuu nc.un- nt o\' thr nlaintiirs suit ciui- not l»f pl.a.ietl as a s-'t-oif. .•\tn tnoiij^h the vcr.hci on wlii(di the iud>,Mncnt is loinnl-d was ^^iviui bciorc tli'- coin- nn'ni'«'int'iit of >ncdi ,>nit. I lsiii-4i. It IS to.) latf to si-l olf one .)ud;^iiiiiit au'/iiust aiititl:ci'. alter an execution is.^ii. d upon oiif of them I)uh licua .^atis lied. llr.i.llni v. Ih-i>l,;i, ('. Ms. I 17. H .Iii«luiii4-iil ii«il a4-|iiail> HiuiM'd iAvii defendant liad rrcovereil a judgment a-^'anist tiie jilaiii titV ill r.jd.Mn. an.i issuid execution, hut nothiii'-' was rea- lized on a : tli. plaintnf alterwarils ohtained a v. nliii a<;uinsi the d< i.-ndant in assumpsit, and cutiticd tn si>;ii judgment. ////./— 1st. Tlmt the delendant hfiii a ri^;lit to set-otf liis judgment n;;uinHt the (hnua^'cs recovered by the phiiulitV. tliou^;h the plaintiffH judgmnit was not actiiallv si:t-okk. 1147 h \). k Cn. :uiy ilTs. .ml -iiuui>iii:o ftt-r (Ir.iu.'tiim ill'' ,._ 1'.. \- (',1. WtVc \n 1,1 111.' jury ihnt till' l,,r til-' lt»:_;s m tin- m\\\W ari'iMinl. Inil „■!-.. tV. //■/', 'rii:"' . .V;,,.». 1 L'/. '.IT. ■ ;, c, rtaii. >iini in ,t alt. r till' ti'ii- li"- sol-otY IS a lini'>iiil' Vu-.cai). I. ^1' ''>''■' nil. triiaant a..'a'nst tli.' XV pliiiutilT's snil'';ni- >u-li tiir vn-ai.-t on vrn Ix'U'i-'' 'I'"' '■*"^^' a ,1. til irl.niaiit's ,n,l.;.tr.liu.s l.doiv „,,t iiL-iinst aii>'li:';i'' 1 thrill luiH I't'^'" ^'^'^''' l.irii |,,atii-uiuslllKM'l^^'"- hut nothiii'-' wasivu- ohtaiiK'a a vn-au'l an.l oulilUHl to si^ii Inaaiithaa a ni^l'l <^ L,^,, reoov.iva l.y the Lui was not aolually fiil^iu'd. 'ind. That the (lofomliint was not precluilci] from applyiiif]; to sot-otV his jiidi^iiKiut, hy haviiif^ plead" I it as a set-otf in tlir action ol' assiiinpsit ; — his Jiidj^iiiciU iM)t haviiif^ been sij^niod at the time the action of assuuipstt was I'oiiiMunced, and thoreforc, not heinj^ the subject of set- otV. :lrd. That, thotijjjh tht- defendant's rule did not, in (■ nus, ask to havo liis jinlj^'incnt s^'t-ot!" subject t') tiie lien oi' tiie plaintilT's attonu'y for costs, it was in the power of th ■ ('ourt to ,!.M'aiU the apphcation siihjr -t to tlie lion. Ahrll V. i.iiihf. Trill, r. 1S«;7. 1) ^Irr^ri' ol iiol«' i^i iiiiiiissory nott- made l>y the idaintitf and i'n(h)rHed to the defendant. At the time notice of st^t-otV was j^iven. an action was peiidinjj; on thi' note, and before the trial of this action jud^^nneiit was oi>taini>d against the plaintitf on the note; but tiu^ jiul,i^in<*nt wa-; unsatislif 1. Ilchl. Thatth." note was in 'r^f■ d iu the judgment and could iMt he ,L,MVeu in evidence undcf the notice of set-olT. Atl.iiixoii v. Kntli, ,") III. :}()."). Snuhle, That the only relief for the defendant in sucii a case would he an ap[ihcati(in to the Court to hi' alloW'' I tosft-olV his judj^nieiit ai^jiiust the idaintitfs judjjituent. In. The pendt'n'y of a suit, or even a, verdi -t doe- uit change till' n.atiir.' of a d 'ht. litit a ju Uiu lU d.) s. //"'7. 10 \ol 4>ii«loi'*>('(| 'I'iiiir. A jih'a of 8et-()lT stat-'d — '"that lietore an 1 at the ti ne of ' xhihiriim the i)iir" tlie piaintitV was indiatted to the dc- teudant, etc. The declaration was entitled lieiierally . 11 \oli4*4> \% hat iii:i> l»<> •*ii4'\vii iiii All 'l:\-2. I*i K«>|.otl rriinii fii«>i«> 4>vid«>ii«<' of |»a>m<'iii. \% hrii • If ft d*'ffi)(lant }j;ivt's a notice and I'nrtienlars ol set-oti", whidi nrr prineipiillv niii(h> up of tj;oodH funiislied tlie I'hiintitt". it shews ]>rinia Uun- tliat ii was not intended as a l>avnuiit, and the jdaintit^' is « ntithd to costf. tliouj^li the Vtrdict is under IT). Wliit, v. Ihnrsnn, 2 .1//. ."jl. i:t JikIkiik'iii «.iil»j4'4-i to anorii4>y% Ii4'ii. WluTc thr Cdurt allows one judj^uitnt to he set olT a^ainHt anotlu r. it inu>-t he Hulijcet to the attorni ys lieu fjenerally, and not niert 1\ to the txtent of the taxed costs in the i-articuhir suit. //<"/< /s v. LkUIih, '2 A«;> ;V.i. II JlMlKIII4>llt ill Illf4*n4»l' 4'4»lll'f It4'll4>li4ial iill4M'«'*>t. S'Vihii , 'I'lic ( ourt will allow a judj^nient of the Inferior Coui-t of Common I'leas to he set olT against ;i jud;:intiit ohtnin* d in tiiis Court : although thr action in tin Coinmon I'ieaH may liavc hem hrought in the name of anotih r pt rson: the defmdant in this Court havin;^ the sol- luneficiid inter* st tlwr* in. y/-/'/. Hi Jii4l|:iii4*iil— I>ifl4>r4-iii iialiii'4- 4>l a4-li4>ii« l.ieii ol .4ll4M'll4-> 4>r4l4T •>lll»i4'4-| |4> Ii4'll. I)efendant had r< ((tvcrrd ajudi^nunt a^'ain^t the [ihun- tiff in rrjdcvin and issutd e.\<'Cution. i)ut imtliitiM wns realiwi (1 o\\ it. The plaintiff afterwards ohtai.e d ,i v-iihVt aj.;ainst the d«-fendant in aHsumpsit. and wa^ i.ntitltMl to hi^'U jud^MU. lit. //<■/'/. that tile (hfendant h;id :i ri^'lit to Bt't off hih jud^'nitiit aj^ainst the dan)a<,'e8 recovered liy tiic plaintitT, thouj,'h tin- plaintitl's judj^Mueiit was not actuidh hi^;n(d. 2nd. 'i'hat the (hhndant was not prt'iduded from appl\ inj.; to Hi t off Iuh judj.^ment hy having; pNiKh-d it as a Ket otf in the action of assumpHit ; hiH jud«iment not liaviiit: heen Binned at the tim» thf action of assiniijisit was coiu- nienced, and therefon- not heing the suhject of u ^^ct ofl. ard. That though the defendant's rule did not in t.rnisask to have his judgment bet off Huhject to the lien of tin jilain- tiff's attorney for costs, it wus iu the power of the court to SEVERAL ISSUES. 1140 mutual accomits iwv was found to f) All iU-i. liyilH'llt. \% h<*ll ! ticulurs ot brt-ot\', ids furnii^lied the not intoiulftl as a coslb. tliouj;li the 2 .1//. .")l. I'll. UTt to h(- HOt otT [\iv attonuy's hni of tlu> tnxinl coi-tK i4>rK iiil iiiK'f'"*- ncut ot tlM- liif''ri">' aa»ill^t ;i jua-uuiU tionin th. Coiumon u.ofannilHriHVHOir. thr >.)!• l.fiieticml ,t a-aiu^t thr vhiii!- but iinthin^ was ohtai.i-1 ;i v.rai.t La wa^ '-"''tl''^' ^*' aant baa a li^l'^ to |.„sn.covtrfahytho ^nt Nvas not actually ,. not l.n-KuUa (rota Linui'l''^'!''^^'^''' Ijua^ni.ntnothavm^ il^sunll.slt was com- subi^et of a sot off. ,\u\ not in t.rni> a.K tlu'licnofth.rl'un- ,ower of the court to grant t lie application subject to such lion. Ahrlv. L'ujht, 6 All. olH. 16— I'jNiiry— K4>4'4»v«>ry of <>\4-<'«»«.i\'«' iiit(>r4>««i iiiii- or«l4>l»t iiisKlf' tor |»iir|»ON<> ol «>i>t oft. The !)lst sec. of the Insolvent Act of 181)9 relating to Hot off ai)plies to the transfer of any debt sought to be set otf , whether it was ac*' Uy payable or not at tlie time o the assignment. McLroil AsHijtK'c (fr. v. J hinrilU:, '1 Pit'). 422. 4>ooi*4'4l U Ik'IIk'I' psiymt'iit oi- «»<'t oil. .S'-' Costs ;Vi. Little v. Cair. Fi-iiK'ipal and \t;<>iii Kif^lit oi h<'I oil. >■'■<• l'rinci[)al and Ag;Uit 21. Kiniwdf^ v. TnrnhalL 4'Oi-poi'alioii— Koiil. Srr Cor[)oration 1«». Ko appi'opi'ialioii toward*) |>ayiii«'iit. .S'<(' J3ills and Notes V. 17. D<>t<>iidaiit raiiiKit |»r4»v«' lii*^ *i<'i-oti in piaiiititl's ca^tic— Oili«>ru'is4> witli |»ayiii«*iil. .SVf Evidence Vlll. 7. Ko «4»ii4-<> ol «»«'t-oll'. Si-,' Assum])sit 111. ')0. l§et-otl, att4>r otirr to •«iill«'r iiidKiiK'iii by d<'l<>iidaiit 4'o*tt«i. .bVc .Judgment 11. »'». «>. Sec Practice 1. 4. — Pleading IV. Si'e Costs 74, 101. BSSS^sw" urA) tsilKltll'l-. I*4»*>l4>ll 4111. Srr Ht'|)l»'vin 1. %*i*i4*«t«tlll4>lll 4»ll -!\4»l4> |4M-, lliay Il4' Ki\4'll. N'v Bills and Notes II. :•. *«iii:ifii i\ I .i|»|»4»iiiiiii4'iil <'4»iiiiiinaii4-4' in 4»lli«<>. The iijaiiititl wiiH aj>ii()iiitt'tl Slu'ritV of \\ . in M;i\ 1810, and ri'fi'ivt'd a coimiiission ;4iviii^' liim tlu' olticc iiiilil tin tirst Tut'sday in April thin next, "and Iroin tlmt tiiiie till another lit person shoiild he appointed and ^worn into suid otVu'e." r|on liin api)ointnient hr apjiointt d II. his drputy, taking; ii hoiid with snr»'ties to indemnify him against iUiy niisoonduct of II. durinjj; the time he mit^dit continue such d«'}»nty. The plaintitV was continnetl in ottici till March IS;")!;, liis appointment heinj; notilied annnally in the Iloji'd (r)i:>ttf and new I'onds ;.;iven, as ri ipiirtd hy the Aci t; Win. 1\ . eap. I. hut n(^ new einnmission wat^ issued to hnii. I'lu' ajipointinent of II. as deputy was notilud in the (lii:ittr annually, till .Ianuar\ ls:.(», when he was disnnssed hjr nusoonduet. //-/,/. That the plaintilV's tenure of otlice did ntd exidre in Ai>ril Is.'o. hut that in continurd to hold Uhdi r the eonnnission. iKitwithstandin;; the annual untili- eation m the (i,i:-tt' ; that the di putation to II., n. ini,' limited hv his hond to any i artieular time, ahso coiituuiui till hi.-, dismissal; ami that his sureties were also iiahlo. ItntXti'liI V. ll> iitlrmou . I I//. ")l(i. •i 'I'iiiil4>l iivlil«»l |»i4i|M'i-t> \nt iii4li<':il «liil3 l»e|Mil). The .lutv of tiie Sheidf on tin Iruil ot a ehiuii and i a writ ({• pinjiih t'lti ji\nl„utiin, is a judicial tiiUy, niM miiy th.refon' he performed hy the heptity Sh.rilT. d'lic nIl rill' nniy eon.luct two in(|uiries at the sann- tune h\ lu^ dejait;' s. (idiii V. AiliiiiiK, 1 .1//, "•'.•. 3 — i.,4*%> 't'Wtt 4'\4'4llli4»ll*« i*4> laK<'. Whore the Sheritr levies under tvo eXe.-Utloiis. Im!! ihf salt' does not produce euou-h to satisfy hotli, he is only en- titled to poundage on the second .xecution accordinj^ to the amount applicahlu to it after satistyin^' the tirst. H V. lh>iHri>iiUj, 4 .1//. iW. , tiHiiri' TiTn SlIEKIFF 1 1 .■; I lilr li\ III-' iif|'ll'!''-« I — Rxmitioii «litoi- iiiirrliiiHin^ ;;o»il<>». Wlierc an lixccutioii creditor piirchasi-.s floods at Sheriff's silo, with the kno\vlo(l<,'t' of the Sheriff that the piircluise is made in order to Hatisly h'lH exociitioii, and the iil oil will i:\i4lriM-4' ro«4mIiiik Sli4>rill I{iil4-. A //. ht. was i)ut into a Sheriffs hands, under which he levied on r al estate, wiiich was sold in April 1850. The Sheriff Went out of ollice a few days l)ef()re the sale. A rule calliuf^ upon him to hand over the li.Jii. to the present Sheriff, moved more than Kiir \[L 7„ '|\vo executions tor I'ti^ittO each, against the f^ame defendant, — one at tlie suii of the [)resent defendiint individually, — the other, at his suit a-> executor of S.— were dtdivired lo the Sheriff on tluj same dav, with direc- tions that the tlrst-natned exe 'utioii was to be first satisfied. The Sheriff levied under the executions and was afterwards directed by the attorney to a >.i ulon the levies, and return the executions imlld Ixm i : whicdi he did, indorsing theroti mm titii 1162 SllKHlFF. his fo«'S for poiitidii^'t' and fxpiMis.'. In an urtiiMi by tlm SlicritT to ircov.r pouinlii .:<' on i'a(M)(>. ii^ the ainoiint of a C()iii|>r(»niist' of tin* second rxccntion u\:v\v \>y liif judL^ineiit croditor witli Ins (Itd)tor, tlnrc was nodi-ttincf cvidt'tict' of suih :i I'oniproinis*' : Imt. on tlir Shcrilf :i|>|)lyii.<^ for piiv- mont of his fees, tlu' dcfctKhtnt (tht; juli^inint (tn ditori strttt'il that hi- was iibont TnakiiiL,' an iirran^nntnt with tlii- d(d)ti'r. p.nd as soon as it was done, ht- would si'tllo llio plain. ti'T's hill ; on another occasion, Im statt'erty levied on iia 1 been sold hy the SherilT, it w.iuld not have produced that sum. \\'>tiui>r>' \. McLciid, T) .1.7. oiM. ^ I, Defendant tendered tie- phiitititT the amount due on a judf^meut, which he refused to take, ml is-^u.'d exiH-uli*'n, nnder \vhi(di the SheritT levied on defendant's property ; the aid ihih amount to the Sh. rilV. who leturn-d the execution Hatished. //-/'/. That the SaerilT was entitled to relani out ^^f the- aunount so pai.l to him, his p.Hiiida^e and execution feeH. Caitnil Hank v. Mr Km, ', All r,±). S,'t' infra Hh IT. M IJabllil) l>iM-liarK«* in l»aiikni|ii<'.v. A <,h,-n\\ ^■Kv<-MU\vj^:iteHt.(tu'u ji. f'l. '»'> tie- ;^oo Is and chattels of the plaintitr,-who had (ditamed Ins ccrtiticate — witiiout notice of the proceedin-s in haukru .toy, was held not lial)le m trespass, though the del,t tor which the tc^tu- turn li. ui. wan issued had heen proved before the eoni- misBiouer under the hat. lioilet, v. //t-v". =< /v'./r llo. SI IK I! IFF. 1153 I ;m iiftioii by tlm as tile iiiiioiint uf ;l iiili! I'V lilt' juil'^ini'iit (li:^tiMct. (Aidfiu'*' of tl jiinilyiL^ tor piiy- juJ^iiii'Mt m't (iitori ■riin tor the latter, an;i' as ui;h it was )>rolt;il)le, V levied on iiiid been ■ jiroduoi'd that sum. daiiititT the auituiit to take, and is-iU-'d vied on d.'f. ii.lanfs d a Judu'"'""^ owl'T^ iinount teiiderel. ihd /• and t'.iat satis- tie.' defendant ilii.ro- ^\ll,) leinrn ■! the rritV was entitled to n. his poundaio ana ,„. .-, .I//.Vi'J. ,, .)M the ;^oo Is and iiiiir.l his certiticate, ;,,,ikrn >lcy, was held i.,r whicdi the tc-^td- •,.d hefore the co;n- it ^li<>rin'«« I'itflit to tvvs *<4>ivi4<4> of %vrit*i liy otiior l»arly. Where an application was made niuler the Act of Assemi)ly (> Wm. IV, cap. I, sees. 11, 12. hy a Sherill" against an attorney, to eompid him to pay the Shorilfs fees in certain suits in which the writ-< had not l)een sia-ved hv the Sheritl". I'lil'L Tli;U t-n- ('oni't eould not order ni uev to he paid to the complain I nt lor whiidi he had [)-'rt'ormed no service. hnnii v. limn, d .1//. .")HS. 10— 1li*>r4»ii4lii«l -Mli4>iitr^ ofli<«>r-liM|iiiiy iii|». A chariri' against a Sin ritVs ol'ticer (d miscondnct in selliii)^' property nnder execution, cannot hv examiiu'd in an iiit|dication to set aside t h- judj^nieiit. Il'inli/ v. I'rincc, 3 :{ I//. 'iC.I II Liiihiliiy !\oii ari'«>*>l l>:iiii:iu<'. A Sherih" is not lialde to an action for neglectine; to ar- rest a party on nic.'Oii' process, nnless the plaintitl' has sus- tained some (linna,t,'e hy his neglect. CiirraH v. licrkirith, ;{ All. )W>. If the debt for \vlii(di the jirocess issued is harred by the Statute of Limitatituis. the Sheriff is not liable for ne- ^lectin;j[ to execute ; and he may i^ive such a defence in evidence under the general issue. Ihiil. I'i— l>iit) Itrliiiii of writ. A Sheriff is bound to return a writ dc pinprictntr />/'»- huiidn, though executed b\ his (le[>uty without his ex[)ress authority. Arm^itvinm \. jlmini.'^ All. o!)!>. i:t i*i'i<>ioiM>i-«» I>(>liv4'i-.v ^4>\t ^iH'iill Li:il»ility. U' the prisoners he delivered over hy the old Sheriff to the new within the goal, with the writs under which they are detained, and the new Sheriff does not require an in- denture, he shall be chargeable in case of an escape after such delivery. I'oircr v. ■loliii'uni, 2 A'e/v 48. An execution bi'aring ti'^tc on the day it is issued in va- cation, upon a judgment eiiti-red up as of the proceeding term, although irregular, is not, since the Act o Wm. IV, «ap. 37, see. H) and 11, a nullity. Held, therefore, That 1 1 :. I SlIKIilKK. til" SlicritT was linhlc for the escii|)(' of ii prisoner who Im^ Inen Jirri-stud on n r,i. x-/. so t»>st.iMl. ('liipman. ('. .[., 'Ink tiintiW Ili'iil. -Olll MlMTill Itl'CoVCI) I I — ^<>rvir«>«. \« iiiiilioiil> tio L'lidrr tlir Ai't of Assomhty it Win. IV, oi]). 1 src. n.. IHTson Hirvijit,' !»roo<'HS('H direct il to tlif Sli.ritT. hut witl' out rtiiy luitlioiitv from liim. is prcclinlrl fi'oui miiintainiii! Jiny action fur his srrviccs. Ilrnlihitni v, L'hiiiii, 1 Idi: I>1 l'ro4>4M'>**« liiiliilily. \\ here a dffcnilant was ancstrd on a r-i. s'^.. ;m.i 'hs (diurf,'<'(l nn(h'r the Insolv-nt ('.inlinr;! iJclitor^' Act. witli out uJiy part of the money h. in^' ]iaid, the Sh^ rilf is no entitled to poundac;e on the am unit of the execution, undo the ordiniinco of fees ; hut he is eiitith'd to his fccs for Ox ecutins the writ, and hoth ihf plainitVand his attorney an lluldo therefor Kir.iniili V. l'hil>ii, I K' rr 17-. If ThephiintilVsattorne\ is not ha!»h' tetih' Shmt foi ounduf^eon an exocntitni. mihss he receive -^ the aiuoun fro. I th.'def.-nihint. thon ,'h the d.feii.lant han e.scapcl froii the limits, and his hail hav.' juiid the dd.t and costs to th( attorney. < ''il|ioii~l'oiiii l<«-liisiiiu ilehloi- llH' limit*- CaHc. ami not trespass, is the proper renu'dy apiainst n Sheriir for refusing to ^ive a eontuied dehtor the hdictit o the gaol limits. CnldioU v. \Vni>iln,i\ -1 I//. -•>;'• 19 I'arliiiK ^villi »4mmI>» If4'iii<'«l.> • Jf the Sheritr has parted with ^'oods whijh he iial h'viec on uu
      m;in. ('. ■!., 'Inln- ^iH'i'ill ll«'rov«'i'> nl 11. IV, cap. 1 si'c. II, !t > tilt' SliriitT. l)iit witli- iii mI on :i r,i. s./., aii'l Ah- nr.l l).'l)tol'-' Ai't, witli- ai.l, till' Sh'rilT is not ,f til.' .■x.ciition.'itiiitr tird to his frrs for ox- ir and lii^ attonu'V are . 1 K'lr 17.:. nut lial.lototih'Shrrii^ l„,nri'iv.>tlu'aiaoiiut l;uil luH .•..•ap-a from . a.'l.t and iMirits to t!ie :.iti. oper rruu'.ly aj^ainst a (mI a.'hti)!- till' iH'ii'tit of „■ '1 Ml. -iO^- 111 „is\vln:-lilHl'=^"""*''^ , ,.,U1,hIoii tos.'lluai-r ■ ain^t liii.i IS l.y :u-tum. •iO Artioii 4»l ili'hi dot's not lie iiKiiiiisi ji slinill lor an ,sVr BritiHli StiitutcH. 'It M|MM-ial hailill ippoiiiiiiinii al ■■<'qiir**|. If tilt' SliiTitV ai)itoints a Hprcial bailill' to execute a writ, at tile rrtiuest of tlif j)laiiititT, who hinistlf takes charge of tilt' writ and ilrpiitation. wliitdi do not aj^ain come to the SlurilT's iijinds in the rtf^nlar i;')urrir, tlu' plaintifT cannot riilf the sii»'ril}' tti return thr writ. Kiiifintini v. (yyJioi, 1 .1//. (mH. If a siilf liar nili to r-turn the writ is taken out under such eircniiistani^t's. it may hu set aside with costs ; hut if not st't asido, no attaehiiKiit will hr u'rantetl aj^ainst the ShcritV for disohryiii'^ if. //"'/. 'i'i llct'i'iM'c .Inslifit-alion l{r|»l«'\ in. A Shcritf cannot justify th.' takiiii^ of <;oods mentioned in a writ of rt-plcviti if he tnk-' them from a third pfrHOu who is not nanif I in tiic writ. W'iii'iinx v. (iiini^tni khiI W'^nl, n,r. 17. *i» All«'M'«l Ii4*ri faria*.. In an action of trtspass against a ShcritV for taking Kuoils, he cannot justify under n lirri hn-inx rc-issiifd as an 'iliiix. Jiilinstoii V. Wiiislnir, lirr. 't'.\, 'i-'i IC4>iu<>dv atfaiiisi atl4M'ii«>>. A shi'ritV who siisii.iii.-^ daiiiagf l»y i)i-occedinfi; inider an improper writ givcli tt> him hy an attorney, has his remedy tvcr a«.i4»ii |4» a(lv4'rli««4> aiKl *>«>||. If a Sheritl' levies on nal estate autl omits to advertise it. mill returns on the execution, that "the lanils remain unsolii for want of Imvers" —this is a hreach of his duty, and a false return. It is the Sh riff's duty to ;idverfis:- and sell under ilw ji. fa. and not to wait for a iciKlihuiti cxjioiiiis. ■I'lrrixy. MHIrr, 11, i 11)1. '•iO ^iii|>lii«. fr4»iii salt' l*r4M-4'«'4lH A|»|>i'4>|»iialioii. A Shirift" has no right to a[)i>ly any surplus remaining in his hands from a sale under a prior execution to one re- ceived after sucli Hale. Steveniioit v. Doiuilas, lUr. 281. /?[ 1156 SIIKIUI'F. HT Till' Court will not or.U-r ii Slu-ritl" to rfiai liiH hiinds moiu'v wliicli lie has h-vicd for A on iin .j tion ill ordt-r to satirtfy itti execution in his hands , iff A. lini>ll,if V. llopin/, ('. Mh. 147. *iH ll«*iiiaii«l lor ri>iii. Sliirill t'litillrd to a rcasoimhli' tituo to maki; iiiini ns to ri'iitdiiiiandfd. .S'.c Landlord and 'IV-naiit III. 1 'i» F.\<«'*>si««* !«>%> — IJiiliiliiy of siirrii4>s on ImmmI. WhiTf a Slit-rill is diroctfd to luvy uudt-r a //. n. a tain amount an-.i iu- Ht'iKcs and sells lor a ;j;rL'ati'r sun If. |.;uilly of a hreaeli of his duties ol' ollice and his triis are liahlc on their hoinl. St;- houd ;]H. MUln- v. W'd M liiil <-oii*tiitiilcs II !«'%«. Sif JAeeution. IVIakiiiK l«'vy prior lo ii«»<»iHiiiii«>iii iiiiil«>r liisohciii >» . I iii\( r. //.//■/ (s V. I 'III. :io i ol. A ruh' I'tir a SheritT to j)a_\ ovir money in his ii;ii cannot he entered on the motion paper and uiovc I on li teen days notice. K.r purte (hiili'im, 'i All. -ii)',). Ul M«*r%'i<'4* **t %«ril ^iK'rifl iiil4'r«'tlc«l lii»|M'riur 4>*»tUt«*. I'laintiil' as nssignee of the estate of II. an lusoi hroui^lit re|d«'Vin, the writ heim,' directed to and scrvei the Slu-nlf, who was also an Irispector of tlie f.st; Hil'l that the SherilV, as Inspector, was inten'stwl iii suit anil the writ of r.pleviu was set aside. /•'/(/■/(•' (if. V. XcrrrA, 2 /'/«/. ^yii. |Jiiiiilit> of %lioi-iir> 4a«>ii<*nii tor ^lu'iifl's tvv^. ,s.. Alt )rney (ieut ral >\. i:M*H|»«' l.ialiiiity niiiiinK«'^> .s. ( Ksciipe — l)ama}.;is I. 12. Kt'iiK'dy ol «'r4Mlitor til'i4>r |>ru«>«'4Mliii;t*» lakcii iiu:*i< •NiM'rill. ^t'c discharge 2 — K8cai>e 1. SIIHRIFF'S DKKI). 1157 mf^ 'III iiiiil«'r liisolvnil M' )Vt'r inoiu'v in liis iiiimls, impcr iuitl inovf'l on tnui- ,tm, is[)('i'li)r of the I'staU'. ,1)1-. Willi intoivstinl iutlic > set iisiiU-. /•'((/•/(■.■(''' r l(»r ••ilM'iiir- •«•<"'• «<> fiik4>ii oiil in Trriii without iiiolioii. S,r I'luetiiT VI II. f). roi'oiM'i' Jury |»ro4'4'*»w. (jiio'if, Wilt tljtr it itt lU'Cfssary to direct iinv otluT Imt jiin jiroc't'sH to a Coroner, whvu tlic only oi)jt ctioii to tlio Slifiitr is, tliat hi' is ri'latt-d to defciuiant. SinrtiHoii v. I)n,i;il(is, llrr. 2Hl. %\\\v WroiiKfiil «M»iiT4>i**«ioii l»y Miu'rili'. >(. TrovM r 'il?. riiaiilli»i'iM>. Sc' r.ond F. ^iii:i. 1— Allidiivii iVliM«>iilliiiK «>K4>4-iiiioii. Tilt attidavit of tlu' SlitritV imdcr tlif Act 4 Win. IV. cap. -'2. as to till' i»r(diniinary stcjis Imvinj,' lit'fH duly taken be- fore the salt' of real tstatc S( izcd in execution, must ho made at the same time iis tlu' dt cd of oonveyanoe ; and as a (Itfd must in the ahsc iicc of < vidi-noe to the contrary, he presumed to liiive lecn t'Xt cntcd on tin- day it hears date, all iitlldiivit imrportinj^' to have lucii sworn on the 'lm\ February, when the ditd horc date the 'i'ind January pre- vioii.-, and no other jiroof of the time was otlVrKl, was h(dd insiitru'itnt. I )(»•(!. liustiii v. 1 ><'iiiii Ihf, ;i Kai <>(). The miscallinfj; an execution a trxtttdmi jii ri facias in the Sheriirs deed, whereas it was in fact a fieri /*«iiiii|>lioii. A. i)urchaHed lands at SherilV's sale in 18;U, and took possession with the assent of the judgment debtor, who iiever disputed A.'s right or the regularity of the proceed- ings. Held, in an action of trespass against A. by a per- son who shewed no title, and had only recently obtained pOBsession, hut did not claim under the judgment debtor^ 1 1 .'iS SIIKKIKI'S Dl'.iJ). tli.u If wniiM \u- i.rcsum.d tli;it the Slirritrs procee W'lT rf^^'uhn-, though tlitTr w;is no .vidrn.-- of anv c til. II issiU'd i>r a(tv<'rtisriiunt dl the pi\)|Mrtv ; im,l tli; SIh'rirt's (1I..ii<»lraiiiiiiu "^iilr lninii«f ion. >• < i'liu-ticf ill I'".i|iiit\ 1 1 . I. :i— 1:\4 ciitioii ol dri'd l*:ii-ol t'\ idriM «'. \\ ii. IT a .Slicnil'h (ice, I and 111- ailitlavit oldiic ixm- and ^a!f I'rar iiil)< n jit date-, parci fvidrnrt- i> admii t.) |.lMVf '.hat tiit} Wflf i\rciit(d .1,! tllf ^alll^ (|;iv. / ('•iliiiill V. I >irh>ii ^,,11 , I II III. ['>>\. 4fli :il s:iiiir liiiir ilial drid is «•> It'd 1*1 «-»iiiii|Mioii si^ if» iiiii<>. s.. '>..■! I. ;;;. %flid:i\ il l»> l»«|Mil> ^iu'iill on 4le4>d l*i-oolo{ miiiIhi >. . I!vid. llr: \ i. 1. I ^ah' l'oriii4>i' induinriii Kclalioii. llic titli- t'i>ii\._\.d ii\ A siuril! s di-fd, :.; laiiil tniili'r c-Mciit lull i>>ii' d ii|Mii; a juduiiu lit rroovtrcd i action lii'itii^lit on a loinit i- iial^ninnt of tins saiiir (' 'U'< T^ not I't late Iko 1\ tc tlif tunc i j unr.'.. ."-o a- lo al'hrt a cinN rvaiicc made \>\ the judj drhlor lif!\vttii tlif Iiuum of tiif M^MUU;^ lilt lirst aiid .-c jud'_'nu'iit. />'!',/. I'riilinilt/ V. Mi'Kiii-ilit , /)' /. :!7''. ^ .lii4l;i:iM<-uf lilarliinu of llxrrniioii l<<-l:ilioii- i-iiat not « ni laiiiiiu tli«- uraiitmu paii. A Slu-ritT's d and trnriiK nts." At 'lu' of i-i'e[iHt«'nn^ thf nu'iiMrial. tin di I'tia- iiad im titlf t( htnd, but it was aftcrwanhs f^ninttd to hnii. and ih' VfVtMl it to tin- ( flVudaiit hcloro tluM'.vccutioii isMnd. ' 1st. That tin- juiloiuriit attai jud upon the land 'aIh ■was {.;iaut('(l to tln^ ih lt!oi- ; ami that win n tlio cxtci WiH&WiSi )K!:i). SHKUIFFS SALE. Hot) ;li(' SlicntV's i>rAUU ilay. /'-■ I. "(. liiiic Uisil «lvr«l is t\«'«ii- iiiK*. 4lc<'4l I'rooloi aiillioril). tclalioii. ri-itfs ili-f.l. ;.; lan.l Ni;>i U'lmii' lit vtcoviTi'l 111 ;iii ria.nt of this .-am. ('tin', lit' ^i;^liill.U til'' li!">' jil"-- IT iiui'ir l>y the ja.ljiiwil Uf^nint^ thf lii'st aiul >vrM\'\ I.Kiii'iht, II i. :!7i''. :\riiiiioii l«:H'f. t tii«- Slua-ilf lia.l Mi/."iall ,.,,i,Mt .l('l)t.u- iiii'i inaf'i- ;it till' tinu' <'l r*'4i-^t.ni- .^raiiiiii'; part"! tli<' 'I'l' I trJlrUnlltS." At Jlntll".' .l..l,t..rha.l imtitlnotlK mtr.l t«. Inin. and i>'' *'""■ tlH'rXft'Utioll issuni. '/'''• ,1 upon thr land ul.Hi i' lltluit wluu tl,.' ■•x- '•"""" issued, it iv'lutcd liack to tlir ngistry of the memorial, and (ItU-atcd the convcvaiu'c to the dcleiidaiit ; "iiid. That the i^nuitiniJ! part of the dt cd was not eontrolk'd by the recital; lait couvfved all thr hiiid desci'ilx'd in tiu' (Ucd. />or deni. I\irr \. ■Ii , ii'iii' I- I'^Tl. «» \ :i|-iSIIM-«' lMt\t 4'4'll 4>\4'4llll4»ll :ill4l iH4l^:lll4'llt liVf'CII- Ii4»ll Aliil*> l*|-4Mll 4»l 4M-i^illill IMIf ll4'4-4>««<>«Siry. hi t ji't'tiiiiMit, i-hsiiniiij^ ".unit r a Shii-ilfs (iced, the exe- ('utioi! niidtr which thf sale took i»lacc. recited a judgment lor i'lld.") lis (iilii. and l,") lis. ciots: the judgment was for I'lld'j 11>. ill till' wliol. . //'/./. Tliat, the variance was uiiiy an ii-re;^iiiarit\ , wiiich con! i uol hi' taken advantage 111 at the trial. //<"/, also -the .sale heiiig under ;in ((//r/.s, ihf (irii^inal < \. ution n^n d im; \n- jrovrd. hucd. \]\iliili V. I h, Hull, C. All. ;5.s7. *^ih:kii'I''« s vi.c. I Uliai iiia> Im> lak<'ii in 4>\4>«iiti»ii '\4»ti44> l..<>\'y— i4lV4'rli«>4'IU«'lll i:\ i4l<'n4<> I*|-4>s||||||»|i4»ll - K4>- riiaU. ileal estate ill reiuaiinU'r nr rewrsion may he taken in 'Xeciitiun and sidd at Sheritf's sale, under the Act 'H\ (hjo. 111. cai*. 12. 1)".' V. Iln:,,i, :5 .1//. s;. The "six months"' notice of sale rciiuiied hy the Act ;in: liinai' months. Il>iil. The SherilV need not make an ac'inil entry (ui tlu' land lo levy. The adveitisiineiit i> proof of a levy, ih'nl. An adverlist lueiit in whndi tlie iinmlnr of the lot of land '0 he sold 18 K'lt hlaiik, is sullicieiil. l>i,t v. Hii:, n. '6 All. •s7. The recital in a Sheriff's dei d of other jiidgnieiits heaides tliat under wliieh the sale took place, does not atVect the (lucd, or reuih'r [iroof of such judgment necessary. //(/'(/. In niak .i- tiile under a Siieriffs deed more than twenty yc'iirs old, where the lale was under a d iiilitiniii r.rpoiKis, iiiul the laud had heen advertised in the (i(i:iit('. field, (iu the ahsenee of evidence to the contrary) that it might he presumed — Ist. Tliat a legal levy had heen nnide under 'i. "•./'' ; '2nd, That no newspaper was puhlished in the '. m i i 1 i i 1 m^^ IHM) SUEKIFFS SALK. County; :\rA, Tlmt tlir otlitT uoticfs niiuirt d l)v tlif Act had lu'tMi j^ivt'U ; mid Itli. That the sale took i)laci' iluiini? tile hours prescrilnvl by hiw. //*?(/. Aii\ iii-fi4iil;irit\ in issiiiii)^' thr rnistlill^ ol t'^lailc l*iii'«'liii*>4' \o 4'oiiv«'>aii4'(>. A., a juilgnicnt creditor, jxjinted out land to the Hlitrifl as tlie jiropiTty oi !'>. his debtor, which the SheritT U'viwl upon and sold, and A. becanie tlu' purchast r. with a know- ledf**' that a third perHon claimed tln' title. A. afterwards timlir.^,' that B. had no titlr rcfust'd to complete the pur- chaHf, and no ret'irn was nuidt upon the execution. Ih'l'L Tinit the mere purchase, without any conveyance from the SheritT. Vested no estate in A , ami was no satisfaction of the iud;;ment. and theretore that A. had still a riul't to issui' a (•'/. x<»■ V, W'^iUoii, 1 .1//. (17o. I idv«>ili«>iii(; l*liH'«-o. Lands seized by the SherilV under execution, must be atlverlise-i at the Court House ; at the oftice of the liegistrar of l)eedH ; ami in the other places mentioned in the 1 U' v. Stat. cap. li:<. sec. H; as well as in the local newspup'r. I)urr ail «li«'riir«* «ai«' Oporulloii of «i«t. 'it K"'' cup. 4. See Deed U. 2, 3. Purc>huN«> of <>qully of reil«*niplion l»y mori|{aK«'<'- i:fl«>«l. tjee Mortgage 17. SHIPPING LAW. 1161 xeeiition. in sfimrjitc ,1-8 nanira m lii.' Ac^ i-r rxecution, must I'l onti()n«'il in tlu' 1 li' >'. .lloii ol Mai. i? K»*' kion l»y moii»t«»K« Jiid^iiK'iil «'r«Mliioi-— \«'«M'*i«*itj ol •itali' iiii4l<'r 4>X4>4'iili<»n I»4>l4»l'4> 4-4»llt4>S|illK titl4>— L4M>n<>« ^i|:ill4li. Set' Practico in E(|uity II. 1. Person claiming i)n)i)erty under SlierilVs sule under ex- ecution, not necessary to prove the docketing of judgment. Sic !>(><' (Inn. Hnrinr v. Jhif/ifhl, 1 Kerr 117. Nil 1 1*. riisiiiu<' <»l 4»\%'ii4'r>«)ii|» 4liifiiiu: \'o.vii^4> Liiiliility to .Ha«»t4»l'— V4'«»S4'I l4»«|*l\44 LAW. I l<«>^:i«t4>l'4Ml 4»uii4'i- K4'|»iiii'<« Uahiliiy. The registered owner of a vessel is not lial)le for tlie ex- pense of repairs put upon her, unless the work was done u|)on liis credit, ami by his authority nxpross or iin[)lied. 'rhniiiii.-ioii V. IIiu/lics, HiJ. T. ih:m. •i '11, e defendant having advanced money to 1). to luiild a ship, became the registered owner of three-fourths of the sliip as a security for his advances, witli an agree- ment that she should be sold in I'ingland. and his debt paid out of the proceeds of the sab-. Tlie shi[) being at St. John, and requiring repairs to enable her to go to Lugland. D. and the nuister of the ship employed the [jlaintiti' to do the work, directing him to charge it to the owners. The sliip was sent to I^ngland and sdd. ;ind the ilefendaiit got the pioi-eeds. Ill III, That he was bable for riie icp;iirs. Wmnm. v. Wood, \ All. 'MVl. •i Itoiisi Ii4l4> |»iir('liii*>>4'i' h4>^:il lilli' l*i'ior iiiii'<-^is t4'i'4'4l iii4»rlu;aK4' -!>i4>ti4'4'. The hoiiii fiilr i)urcha8er of a ship, with a legjil title ac- cording to the provisions of " The Merchant Shipping Act, 1854," is not bound by notice of a i)rior unregistered mort- gage ; therefore, an injunction was refused, on the applica- tion of an unregister.'d mortgagee, to restrain the pur- chaser of a ship at Sherias sale, and who, as such pur- chaser, had l)(>come the registered owner, from disposing ol the ship until the mortgage was satisfied, tliough he purchased witli notice of the mortgage. i Ritchie. J., iliihifiint,'.) Drll'iilh' V, C\'rr;7/, ♦> .1//. 'IW. 74 1102 >III1'1"IN(. LAW rl I ^«-KliK4'ii<'<' <>l iii]i*.f4'i- l.iiiliilil.v ot owiK'iol \rsM>| Tlir n'p;i!*tort (1 owiut of a vobhoI is not liable for <'(ii)(li loBt hy tilt' fraud ov nc^lij^Mnce of the inaHttr during a voy ai;t', imlfHs tlic nmstir is miployod by or acting,' tor luiu Tlurcforc, where debndant iiiadc advances to A. to tiiahh liiui to liuild a vessid, and took the re<^istr\- in 'lis owr name to Hcoure bin dt bt ; but the vessel was sailoil by A. and tlie defendant had no interest in her earniuj^'s, ami did not eniidoy the master- //-/'/, That he was not liaMf for goods lost throu<;h the nei^ligence of the master. Ni'whurii V. )'()i(ii,i, 1 I'mi. 14H. «l- 4'«*rlifif-iiH> of r«>Ki^t*'> IC4-lii*>al t<» ilclivei- up. A }>er8on who had been part owner of a ship, and a;( Hucii had I'Ossession of the certificate of rej^'istry, and wlm refuses to deliver it up to a purchaser of the ship at Sheritln sale, is not liable to tije penalty inipo8e/. 198. a I iir4-Ki<«l«>M>«l %«>•»*>«'! « luilK'l Ti-iHi«.ler -ICe veoliiiK ol |»r«»|i«'i-|) -— 11% i4l«>ii4'4*. The property in an unregistered ship nnty hv trans- ferred bv parol like anv other personal chattel. A ri.L,'!strv proeureci by fraud on the true owner, by a pt-rson who liaa obtainetl possession of the builder's certiticate. and made a false declaration oi owtiersiiip at the Custom House, is null and void, and will be considered at law as well as m equity not to afTect tlie property and right of possession as a^auist the owner and his lawful assign.'C. The cancellinu and giving up of a bill of sale, and at the same time of a lull of .•xchaiige given for the consideration money, upon an agree- ment to annul the sale, is sullicieiit prinui /(ten' evidence of revebting the projierty, although there be no actual re- delivery of tlie poBsession. McLcm v. (innit, 1 Ken 50. i\ ' : Silll'riN(i LAW IKi:^ Ol 0\\ IK'I' Ol \t'«.M>l. s not liiil)le for ^uoilg iniiHttr tlurin}; a M'.v- )y or iU'tin^' tor luiii- t-jirn-i'H to A. to cniiljlf ' r«'}^istry in his own ssel was sailod by A., luT ciirnini^H, aim did he was not liaMc tor th.- miistfi-. Ni-whiint to «l(>liv«'i- ii|>< lu'i- of a sliii>, and as > of rej^istry. and win* ■of tlu'shipat SheritVs )0Sfa by the r)Otli set- ct, IH.VI," sufli ccrtiti- ;luiser for '• tiif lawful l)lf him to [uTtVct Ins ship indorsi'd upou it. »-'vidence of Ihere be no actual re- y. Grant,! /vVr 50. 7 >l— A^^4>4>lll4•lll f4M* ••.iil4>-.\4» pi'oporty The owmr of a vessel ly'mp, strundcd on the shore, and iiliaiidoned by her crew, a^'reed with A. by a memorandum ni writing', to sell him the vessel, for a curtain sum, for which promissory notus were ^iveu payablo at future days, iind if. was .stipulated that a bill of sale a.t)d re^^ister would ito ;^dven U\ H. wliou the notes Wi-ro [)ai'l. Upon this ;i}j;rtement beinj^ made, li. authorized A. to take nossession, iiiid A. accord intj;ly took [)osscssion of the vessel, repaired iinil litted her out for sea, and was emi)Ioyed in navigating iier, when 13. forcibly resumed the possossion. flttld, That no property luiving passed under such agreement, B. still remained the legal owner, and that A could not maintain trespas8 against IJ. for such taking, lirmni v. Nicker>tim, n >i4'aiiiaii'«> \viiK4>*»— liability <»! psirl owikm-. A part owner of a vessel is liable to !)•' sued for sea- man's wages under the Act <> Wm. IV., cap. 44. Er. purte \V D4>viafi4»ii ill V4»)'aK4* KiKlit t4» mii4> for waK4>K. Win re a seaman shipped at Liverpool, England, and -ignt'd articles which thus described the voyage: "To lonie out to Saint John in a ship called tiie Portland, to lie under the comnumd of the nuister of the Portland until her arrival in St. John, New Brunswick, there to leave the I'orthtiid, and to go in a new ship commanded by the master, and to continue by her until her arrival, at her port of discharge in the United Kingdom." Held, That iin avowed intention to go to Savaniuih, in Georgia, pre- vious to her return to Great Britain, was an intended de- parture sutVicient to justify the seaman leaving the ship 5ind suing for wages. Uaijuuird v. Midnc, 1 Kerr 2i)'2. I><>viati4>»— Kiiclil ■■> «4>ain<«ii t4» d4>t4>riiiiii«> 4>oiitract— .!iiri<44li4'ii«»ii ill .lii*«li4-4> to iiiuko oi'4l4'r tor pay- Ill4>llt. Sea Justice of the I'eace IL ;}. 10— L4»M«t hvi4>lli««oii €:oiiti'ibutiuii-Cii»t4»iii. Where the owutjr of a ship is also the owner of part of atasm lit) I SHiri'LNC, LAW. tlif CHr^o. whic'li wan tliiowu ovrrlio.ir.l lor tlic pr* s.iva- tioii iif the sliip ill (lie coiirsc of the voyimi, on wliich Mssuniiu't' was tlTtcttd- -//(■/\ crlftiKliiiU \«*<«»<'l 4 oii«>4>iil ol o\\ ii«>r of u«mmI«i Hill '' arritr \. '1. II ^lii|i «»\%iM'i- ICiulit ol o\%ii«'i- ol tfooiU lo (leiiiiiiHl "^('iii: ' iaiidiiiK .v. vihl, , '! lu'.t the owner of "ioodH has a right to donuinii tlh'in from i\ut sliip owner as tin v arc land-'d. on jiaynicnt of the fr('i<_jht due. I>. r. A Co.. nn rclianth of London, forward* d to I'.at St. .John, a ijuaiitity of iron on hoard didVndaiit's ship, tin master of which <;av.' |). (\ vV Co.. a hill of ladin.;to .Miwr tin- good's to them on tlnir ordir. 1>. C. A ( o. oMiitt'ti to indor.se th«' hill of hidiiif.;. and (hh-ndaiit r.tusid to dtlivcr th.- (.joods to l». Ihl'l, \ur. .Ml. 11. C. -I . and FisluT. .1., That 1>. hciou' "wnti- of tin- -^'oods was tiilitl.d to n'tn-iw tliem. and that ih-h*ndant was liahh lor tie- wnaiglul doteii- tioil. Piirisrill'- \. /''iniiti^iiii , 1 /'. A />'. I'L i'i Itlli ol ItKliiih' itfMTiiM'iil ol u 4>iKlil u iili i|ii:iiilil.V ItiKlil **t o\\ ii«'r lo »<»4rrlaiii W h.-re a hill of hnUn^ contaiui-d the words •' wei<,'lit and eontents unknown" it was ht-ld \n-r .\lhn, C. •!.. ii'id \\'l- don, J., that the owner of tlu' ^oods .-ovt-nd hy it had no rit^'ht to re.juir.- th.ni to he wei<,'lu(l to asctrtiiin if the \\.dght a^reo with the .|uantity stated in the hill of l.uli"^'. Jhid. i:i OuiMiHliin ««ulll« i«>iil proolof K«m lipl of wood- BUI ol la«liiiK lin|»ll«'«l couinMl l« !»»> "«''«"'' In an action for frei^'ht hy a shipowner, proof that SHIPPING LAW. 1105 »> IH'I- «»l «»«»«••» **'" ,1 ««o'»«l )n. t'()rwiiriJ •'•'* plaintitl' Liid for several years the maiui.^oiiiout of tlii:! ves- sel, and run her, taking' charge of iier when she arrived in port and paviuj; th' captain and crew, is siilticieiit (evidence for a jury of plaiiitilf's ownership. D. cV Co., merchants, (loin^ Imsiness in London, shipped from that port a (piantity of iron beloiit^ing to defendant on board plaintilfs vewsel, to he delivered at the port of St. John. By the hill of ladinjj; the property was deliverable to J ). iV Co. or their assigns, hut the hill was not indorsed by 1). it Co.. and when the vesstd arrived at St. John plaintiff refused to delivt'r the iron to defeudiinl. tliounh he deman- dcil it as his property and made a tender of the freight. I )e- fendant then replevied the iron, and so oljtaineil possession of it. IMaintitf thereupon sued for amount of the freight, and on the trial the jury wt-re directed that if defendant re. ceived the iron under the hill of lading, he was liable for the freight on tlu- hill. Ilild, an erroneous direction. That as the bill of hiding was not endorsed, defendant could not claim tlif <^oods undi'r it : and that, if any contiact to pay the freight could l)e implit d from defendants taking the propcrt\, this was a (pK'sti of o\%ii4>i'<«lii|» of ««'«>*»4>l 'l'<>riiiiiisilioii of «oiiira<*l -I'iaii <»f «iiiit— Voiitai «'oiitra('t. Where a seauuin agreed by articles to perform a voyage fiom (ireat Britain to America and tlience back again to the United Kingdom, and the contract was terminated bv reason of |a change of ownership having taken place, the Court held he was not in a ])osition to sue in this Province for wages due him up to the time of transfer under sec. 190 of then a. seaman and the master for the former to go to FiUgland, is illegal under the Act. and the seainun has the right to terminate SSB ^^n^t™ r ] I 11 lit; SIIII'I'IX., i,\\\ 5wH if|| It at iinv tunc, iiiid r.ciivtT lor his scrviic lor t'lc time lir wns ;ictu!llly •■mplovt il. Hxinm v. I'ltn s. '1 I'mi. ll.Vj. 1.^ Ilii<«t4>i*s uiitf<>«i V4>*.»i>l lo%t s('l then was. ami to take chai-' ol lar as niastrr, l'ro< lin'_; to New ^ drk he saihd m ht r on Sci)t. *Jl.st. On Oct. Dth she \vm> ahandoncd at xa in ;i sinkiui; condition. I'hiintilT and new w. rr savrd. ;ind itltirilis- ohjir;,Mn^i tlic crtw. thr ma.-^tt r iir(n-c( dcti to L. an.i r. i oitrd himself to the slii|."s aj^onts. On ;ird Octohci' the \rs a]))ioiiiti (U'Vt- ditor's assign* e. and the jiro|erty in this ve^s^l hu-auif vt'hted in him as such assignee. I'laintitf now siml .ieftii- (hint for his wa;.'es from S( ptemhei- lind. nil Oetohri- '.itli. when the vosel wa.s ahandoiied at si a, als i lor inoin y |i:ii i l»y )iim for his |iassa^e to New \ t»rk, also for hoai'l and eN {u nses thi-rc inilil the vess^d saili tl, and for hoarii ani e.\- JteHHts subsequent to the lo-s of the ship. //<■/f plaintitf scl liin: but. jM r W't Moll and l''i>ii( r, .1. J., that, ln' was liaiile lor waji;« K from Hrd to '.tiii (>i-iol»er. Siiiii>snii \. I) rrlin-. 1 /'■ Itt neck loii«l lariMTiil avriiiKr roiilriliiilioii \4 lion l4ii> (i4K i<>lii«>1 tnido, th'- rule of the maritime law as to ^^eii' ral avera^'e cuiiti-ilni- tion apidit-H, and ail the intere.sta in jeopardy are lioinid ti contribute for any portion of carj^'o jettisoned tor tlair pre8er\utioii, an of o\viirr*i. «'HS«'I. t ni] li'vt (I jiliiin- I jirticrrd id Ni w \vr\\. iKr cli;!);-! ot lu ]• ns SMllt inalilf to :[{]'< <■' ;in ;ir. nitly went into m-oi\- 111 \\ii> n]iiioiiittil ci'i • II tins vt>sil l)(c;t!ii< iiit ilT lU'W sihil 'ittVii- •iiid. Ii'l CK'toiiri- iHli. I, hIho lor ni''ih > |i:ii 1 iilso for lioai'ii iiii'l tA tiid for lioanl an i iN- 'nip. or.'. iMilf. .1. -l-.i Tiii'' .11 of pliiuititT-ii'iiiin; ;ii ][■■ \v;is liiil'i-' !"!■ 'l>.-i rrli'i'. I /'■ null ilMilioii Itlioii inu of r:iV',y "11 l''''^ US;iu'<' of fl'il'^''- ^''' •111 ;.v.r:iiM' f"iitl"i'"l- •oj.iir.lv ;ii-t' l">'i'"' '' jettisoiu"! fitr tlifir , (•ontriliUtitm wliidi ,.,1 or (lispliici'il by ;i 1„, cUwn to such •■nil trilmtion, the burthen of «'.st,iil)lishin<:; which is upon the (UltHKliint. An action for jjjoods jettison. d will lie }ilthouj:;li tha master has sijJinod clear hills of ladinj^ for them and should not have stowed tiieiii on deck, (''tiinnin v. DoinrilJc, 1 /'. ,(• /;. ()i7. 17 -i*|»ro. t<'iii HuhIit .4v:<>iit. Where a vesH(d is chartered for a voyage, the charterer is conHiderod the owner /'/" tempore, and the master, wlietlier a))])ointered as hia arl:i.v in loadiiiu: nrlViiilaiil not supplying r:ii-u:o 'riTin '•r«>«»|M»ii«iil»ilify." \ cliarter i)arty containod the following clauses: — " It is agrei'd that as this charter [)arty is entered iul>) by the I'luirterer for account of another [)arty, his responsibility ceases as soon as the (^argo is ^m board, the vessel holding a lien on the cargo for freight and demnrrag>' ; the usual custom of each jtort is t(i be observed by I'ach i)arty m cases were not specially exprisssed ; cargo to be delivered at St. John as fast as rcHpiiri^d, cargo to be delivered along- side vessel at ^t. -lohn, at shiiipcr's risk and expense, and twelvt' running days for disidiarging cargo; demurrage at the rate of 1*10 sterling a d;iy, if longer detaiu'-d." The -Ini) was maiK' ready to receive cargo, and the deteudaut was duly notilied of this. The ship was loaded and bills of lading signed according to the charter party. There was delay in loading owing to the defendant not supplying cargo if^ fast as required. Ilehl, Pliat the defendant was liable for danuiges for the delay caused by bis not delivering the cargo as fast as recjuired, and that the clauses for lien and exemption did not apply to damages for delay in loading at the i)urt of loading. T'hat, the defendant having once bad notice that the vessid was r.Nidy to receive cargo, he was bound to furnish it without further deunind or request as fast as it was required for loading, and so that the ship should uot be delayed for want of it. w I. IHiH HrKClAL JLlii. (,'»«'/'. Wlutlitr tlic tcriii " roHponsihility " in tlii clinrttT I'jirty iw t(|iiiviil«iit to tlir W\n\ "lijiltility.'" .SV/;o fiehl V. (iihsi'ii. (iihucii .Ij'prlhint v. Srlinjiihl, { V. .t U. til'J 19 r«>rr) l>oail*» Tniii««li>i- of. Till' titlt t<» li rry lnnith runninp; in tlic Imrboiir of St .lolin, must \h' trjinsf( irod uccordiiijj; to the i)r()vi8ions the M» reliant Sliipiiinf:; Act. Lloyd v. l.. i(- A'. A. Hailwn Cn., '2 /• ,( /;. I'M. ^Hl%ii|{4>- 4 liiiiii lor •tiiltiiKi' H4'ivi4'4'k> A4li4»ii ill law iiiiiiii|]iiiiiibl4>. >M Action at liHw. 1\., '». ("I'j' v. Ii',iil. ^til4>4»f «4»«»4'l iiii4l4>r 4-t'rtili4'al4> 4>f «>]||4' A«-iioii lor pro 4-4*4'«l*> 4>f *»iil4' hy ilii-4>4' 411' l4»iir 4»u ii4>r«> : 4oiilrsu- %%illi 4l4'f4'ii4laiit II ioiiil 4-4»iitrii4l aiMl all the own 4'i«> ««li4Mil4l Ii4* i4»iii4'4l ill IIm' a4lioii aKiiiiiM tlit 4l4>f4*ll4laill. See Action at J. aw. Mil., '1. ('(imphcU v. Jkiuh. ««iioKi:. 4«raiii I>4»iiii4l4'4l l») . >((■ Crown (inint I. 1:5. ItlKhl ol riparian |>r4»|>ri4>l4»r. Sif llijiarian |>ro|iri- Keveniie Law. M»l ^l> %\l> DlMM»»l^4i .lll>l>. Si, Will." M»l Til n\\ B€M>1i 4 01ilV4M. KiKlil<» mMl*'!' ^«alMi«* l«» r«**«'iV4' UooiiiaK<'* Sn l)oonu»j;e. Ml*f:4'l.%l. Jl Kl. .S(« .lurv. 0i«ir STA'ITTKS. 11(59 iivv<* \rlioii ill liiu iiHjihrU V. Joins. iMilitcr 18 iuUloJ. l>oe Ni»i:riAi. i*4i>i:it. Sfc Prartiec— Waiver — (Icncriil Itult'S 122, I'iJi. ««i. .SV<; Bill of Sale 2. N'rAiii:ii4»Li>i:u. Sec Action at jjaw I. :{. Sec Bills and Notes 1. i'iiMliiiiip«>4l €;ii«M-k. Src Check 1. «^'i iTi mo. Sir Practise in Kquity 84. " Assumpsit III. 21». STAI'lTi:*. See British Statutes— Foreign Law. Iji 1170 STATl TKS I l.iiiiilM>r in i:\|»lniiioii ol old \vi l.iiihiin) im iii'M . Ilr to ID Tlio l,\iinl)«r Act 1 Win. I\. i-iip. 1.1. uuikiii^ t |>tiroliiist'r nt' till' ImiuIxt. utter tlir surv(\. liiiM. tlit> survrvor's IVch. Imviii^; cxpirt'il hcfurf acfidii inii, — liilil, Tliat till- lial)ility of tlii' (U'f<>n(la 't'|Mniliiij such Act, (li apply to Services j » rfornicd iimlcr tlir oM Act Cmi //./»;/ v. l'ntloi' (o :i|»|ioiiil 4»llim-*» lo nifoi-rr n-i;iil:iiioii llll|»li«'4l |M»\t <'|-*>— llll|»oilll«liilU rafilr Iri-x. ]\\ 1 lii\. St'it. ila!ids." atid to " apjtoint iM»uiidd\(t|H r- ,i oilier otVicers to enforce smdi re!:;uliiti()iis. //■ '/. 11 nnder this sectioi tin proprii'tors had t' ii^lit te inn orders for the iinpoundiii;/ (d cattle I'onii n tin lii!i| contrary to sindi rej^nlations. this |M.wer lieinf; iim > >siiri implied in the ri^ht exjtressly «;iveii to ••apjiiiiii |'oun keepers and (dher (dlicers to .iifon-e the rci:iil;itiiHi '■ The Court \v( re also (d' opinion that tlie ri«j;lit to imp" reasonaide \\ < s to the olVicers appointed to •nt'ercf tl reuulations. is also necessarily implied in the power appoint such olVicers, their authority to take fci'^ I't'ii piven hy Statute. Qurtn, Wluther 1 K.v. Slal. cap. H'l. eiw lii' j"' prietors itow.r to mak<' a i-c;;uhitions dirccrin;_; tln' -al' ' cattle impounded. Sutdi a regulation, however, thoii-li rni-ht l-e had as against strangers, would he f^on.i ; ag»in-t a part\ present when it was unide and iss' ntii to it. lt'ul;i' V. /. iiiniiii, •! I'll I. It".. '.\ IC4>lro*>|>r4 ii\4' 4>|»4>r]ili4tii. It is a general nde that a statute shah not I.e ron!^trlk to ..[.orate retrospectively, unless it is expressly ma. applicahle to past transactions, or the words can Ikivc \ meaning unless such a constniction is adopt, d. >""" liurli, :J Vwi. VM\. sr\Tni:s. IITI «)). IT), iimkini^ tlir tirat ■ siirvr\ . lialil" to |iay 1 Ix'fori' action iivnii^lu 'f<>n lint tlir oM Act Cituuinn- fiiloirc i'r:;iil:ilMMi^- liiiU ralllr \'i'v>. I>ri>pi'irs nf i^liuuls in ilally ainl niMlt r^ '.Mil;!- :. aiiil lutttr liii^iamlrv oint |i()miil-kc»'|iiT> aiil ^;ulati()n>^. //•''• 'I'liut luul t' i.L^lit to in;iki foun n till liiuii. ).o\vcr 111 iiif; iiMissarilv .ji to '• api nint jxniiiil- iforn- tlif I'cUulMtiollS- lilt the n hviwg cap. li'l. 141 vc ill' I'l"- is .lin-ctin.L' tli.' -al ' "f ti,,n. iioui'V. r. tliuii-ii It Ol-h. WOlllil I'c ^ooii lis as uia.l. ami :iss.ntiir: shall 11. )t 1" it is cxpi' CSSl •oiii'true-l lilivie no WOll U can li:ive no Il iri a( lopto'i. >/;n //( V. I Ui'tVk ;IM-4> to r4>|MMll4'4l %«| to llill ill COIIotl'IIVliOII ill siili»4'4|ii«>iit \vi 'l'4>4iiiii«'iil iii«>aiiiiiu. .\ctH rc'latin;^ to tin- same Hiibjcct tliim;^'li i'(|ioali il may l)c rt'tcrrod to for the purpose of ^'ivin;^ a construction to aiujilar words in tho Huhscipioit Art. Where the Leo;ishitnre h\ Heveral statutes passed at ilillVroul tinit's authorized a Citv ('iiunfii to make or repair " pavenienl-^ of stone, di al or phiiik."' and to assoas tliu ownors of pro[)erty l)enelitted therei>y lur tin' expennes till reof, and suhsc jr.ontly liyaii Art npealin^' tlio [ireviona onactinents, Olive po\V( r to tnak(> or r. pair any " Ihiooin;? or paveniiiit," (oinittin,' words of desr-ription) and to iiiuiit; UMsessnicnts. \-c., it was held hy the ConrL that the word '' pavement " was not to he understood in its tecdi- iiical sense, hut in the sense which had heen applied to it liy the Lr^^ihhiture in llir pi'ovious Acts, and that it includi'd eitlier stone, deal m plank. Krpititr Lnifrhi, '.\ I'll!!. i'2r). ■\ l>in'4-lor> Itiiiiii rliarloi-— ll4'4-ltii'iiiK in loi-iii l«» l»c |M'('««rril»i'«i. Till' -itlth stv'tion ()! the Aet d Win. I\'.. eap. It, iiicor[)oratino; the Central iSank whicdi deidares that (ivery liond, hank hill or other instrument l»y which the Cor[)oration may he held liahle for the payment of money, shall declare in such form as thi; |)irectors shall prescril>e, that payment shoidd he made out of tho joint funds of the Corporation, is directory only ; and its non-ol.srrvanci! does not rt;nder such instrument void. Unlmi \. (\iitr.il I'^iiik. ;"> .1//. !!>:{. uiv4'ii ill .HsiiiK' !<» ocfisi-t' ili'lM in iM'lliiiy: on iior*»4' ra4'4>- \o 4>%'i4i4>ii4'4> ol iiii'^ality. (^)uestion as to leu[i,r, '1 /'. A- /;. -iC. 7 |]iiliy l4>«>*> f4kr jiii-4»i'<» A4l i'4>«>|»4>4liiiu:< not r4'fro«>|»4'4-- liv<» Held by AlUn, C. .1., Weldou, l-'sher and l>utf. .1. -1.^ T^?^f 1172 STATl'TKS. (Wetnuuv. J., ilixx.) Tliiit the Act 10 Vic cai). I hic. l.(i •sol. Stilt, cap. I") sec .S5h wliicli providos tlmt on the c of iinv ciiuso lor trial at any Circuit Court, the party ci ing hliall (It'posit in tho Inuuis of the cl«.»rk of the circuit Bum of seven dollars to l»f applied towards the paymei: l>etit jurors, «'tc., is not rt-trosja-ctive and does not appl eases standinj^ as rmianets wlim that Act came into f( May 1st 1S77. /'<" ,1. .liiliuxmi v. Mihir, -j. /•. \: ;;, h7 Where a Statute say> a tiling ;/(-(// he done whicli i^ tlie puhlic benetil, ii shall be construed that it must hodi the word iikii/ is lu hi to he imperative, ddhirt <:r ptifi I'wi. 2:;i. 9 . The operation of the 'AH Vic. cap. 4, Consol. ^ cap. 12) is not contined to causesof action whicii liav.^ ar since the passing ii iM'iiiil 4 oiisii'iii'lioii ol ,S, . hl;-.(il\ ' l.t \it. ./../,,••< \. Ililulnlil. lO ltr|M-»l ^lil»««4>«|liilil iugnancy such tliat the two Acts c not he reconciled. 1\ r jiiirtr liiini' , 2 I'li'i. 1'J."i. 4 l>ll->|lll«-|iOII of ^llllllM' «\ IM'II il4»lll>lllll. iM'IM'fil ol (loi |4> lM> ui%4'ii lo llio«<< u lio iiiiKlil >>•' |>i-«>iii«li«'('(l llii' 4':(4>i'4'i«>«> «»i iIm* |M)u«>I'» Kiieii l»> llic U-t. Sit Mandamus h». Hie Act 2»> eria! Statute 2'>'«'■ Wills. lii«tolv«'iit %4l Ol iMUn I iiiii«*l |»i-<-f<'n'ii««'. Sre Insolvent Act. Mi Lead v. MrLvixl. liuiU%a> iiu«*«l>. .N.. Wuarhige 1. — Justicu of I'eace l\. 2H. TTiT' STATUTORY FORM. 1173 l() Vic I'rtp. I SIC. 1. (Con- •ovidt'H tlmt 011 the ontry it Court, the party t'utt'i- he eh-rk of tlie circuit, tin- towards the payment of \\v and dors not apply to tliiit Act canif into force, , MiIii.,-1 /'. .^ ;;. )]">. //(-/// \n: doui' wilich is tor ,riU'd tiuit it iniixt ho done. atiVf. ( all" It i:r ihtft'. 1 s Vic. cap. t, ConsoL Stilt. )f action which hav" arifitu {fill Iniil. rt'Pfal of a pricHKnt ,ttt r lu-crssarily iiiiphfs a h that tlir t\vi» Acts can- . '1 Pii'i. I-"'- iii»tliil-l»«'"«'<*< "I *'""'*' iiiwn U} llM' *<••• 10 thr cxeculion of wilU [.(•rial Statnlf '2') Geo. U. ttvtvivtuv. Mrl.iud. ...icr IV. 'IH. .S|»4*4*ti4»ll 4lf fi^li. Si'f I'lviih'MC'.c 1 1 1. (■). U'Im'i-4' iiii; |»iirti<'iiltii' |»r:i<-ii«-4' lia*« I»4m>ii i>r<>K4'ribrd I»)k MliifiiK*, it iiiiixi !»<> siii4il> follo\v<>4l. Sec Lhiijhii V. Ilinslis, 2 Krir \. I«II4>UII illM'lll 4liH|-4*U:i|-4l4'4l W Il«-Il \%0|-4l<> 4>i VitSlllll4> llll aiiihitfii4>ii«». >Vr la'Vi'UU*' Art. K<>Vis4'4l NlSlllll4><« l*4»\\ 4>l' |4» SIIII4!ll4l iiiisl:ik<'*« ill. .SV( MistaKt'S. itiu:iii*« iiii«l4>i- Mi3iitiii4'. Scr Doonia^c. *•'!' iri Ti: oi^ I ic ii D^. " ('ontract 11 I'lauds (Statute of. i •«iTi'ii'ir. ov i.ini'i A'rK^iiN. " Limitation of .\ctions «>i'l All I i: LiltOK. " rostniaster, l*l'0*««>Cilli4»ll. In H prost'cution un(hr tho Act 5 Wni. iV., cap. "2, for non-perfornnincf (d' statute hihor, it must he [)roved that the party had hitn notilh'd hy the overseer, of tlie time and place of nu'etinj^ to perform the wcu'k ; and where the •itiiilavits, in answer to an application for a rrrtiornri to re- move the proceeciin^s in such a prosecution, stated that the party had heen '//./// notififd, the Court nnide the rule ahso lute, in order to aseertain what the notice really was — the itp|)licaut havinfj; in his atlidavit denied notice. Ivr p'trtr l'n-(iu)ioii, 1 .1//. (}{)i\. Semhh\ That it is not essential to notify the party to l'rin<,' any imiilement to perform the work; and unless he i"* so notified, he need not hrinj]; any. Ihid. J«i'rATI'TORV FOK^I. Sec Bond (lU'[)h'vin Rond.) ^T%'H TORI Tllij;. >'< < l-^vidfiKM' 1 1. ;{s. viiiix; i>Korr.i:i>i>4j!^. '■ riat'tiif \ I. .luilf^iiunt MS ill (US. ut Noil — lilt II. (*,. ^Ti:vi:iHHci:. !^o iiii|>lir«l «-oiiirii4f to |»ii> 4>\|M'iih<>«.. >ii ( oDtnict 7. l.iiiliHiiy |4> l>4' iak«*ii<>ii «'\«>4-iiiioii. Sn K.\« cuticin 1 \ . 'I',V l.iahilii) to a*>H4>*>*»in<>iii |»> |»<'i'«.4»ik.. Jilisi-rihhitf for. S< r AKhCHSlIUllt lit. I.iiil»ilily foi-fiiii*. ^liiii-4>liol«l«'i-*>. >»« AKKt'ssnu'iit 'l'.\. NTori4iioi.i>rii. " Corporutidii loiiif Stock ('oiii[>an.\ -Hunk Wind- ing-up Act. .SV« 'i'nner H. K4'««foriiiK K4»«mI«« 4lr«l4'r4»f .IikIv*-. >*■/• ( riminal Liiw I!. r». ^ri in:>T. ^lii«l«'iil ai la\t 4>ra. To eiititk' u studi-nt at law to tin- lieiittit of the n'lii' tioii of the term of Htudy ullowcd to gra Vic. caj). lilJ, lit- inuht bo a graduate at the time of tciiij inducing liin study. Ex parte Trurix, 1 llan. 'Ml Ml B|>4i:%.l. Sf* Attttclmu'iit ♦), 7, H. *«l BM hiiii'm; \«it\i>m. ^>e WitnoHB. Ml HMi:4|l f^.'XT 4 Kf:iMTOiC. Prior JiidKiu«>iit uKaiiiNt y%|»plirall4»ii I4» >>vt usidv. See Judgrafliit 1. liobinHnn v. S.li. a- Canada Ratlimn < <\ SIMMAIIY ACTION 1175 . nl»M riliiiiK lor. \[\niM} -Hunk - Wiiul- . i.tMlflil ot tlii' iv.liu- Voliiiifui'> <>oiiv«>>iiii«<' ol liiiKl ^:4mmI siKsiiiiMt •>iiib %4;ki:f::vii]^t. " Contract 1 I— A^Tocnu'iit '1. KIVTITIAKV A4"riO]%. '• .lu(igiiu;nt by Del'ault— Costs ')i). I <'oiiiiiif>iir4'iii4'iit ol anion. Tlic (liiy of the issuing of a summary writ, and not the day of tlu' teste, is consiilered tlie commencement of the action; thirefor* a i)rocess sued out on a demand which accrueil subseiiuiiit to tlie teste i)ut before the issuing, was held sulHcient. StiimrnHint \. McLcUnn, 1 .1//. 19. >i— I'|4'hE»<'Ioi'4> }i|»|»«'araii4-4>— W:iivc>i-. Under the summary Act i \Vm. IV., cap. 41, (12 Vic. eaf). 10,^ a \Av\.\ tiled before an appearance entered, is a nullity ; and it is doubtful whether it can be waived. If it can, a demand of partii-ulars of set-otTis not a waiver of i<". Andrars v. Iliitmini, I .1//. 'A)\K A dimand of particulars is not a step in the cause. Ibid, :t-V<>i-4li4l riiialil> It4>l4»\\ C'iO. The rulf tliai tlic verdict is iinal in summary actions, will l)f ai)i)lied to otlnr actions for mere money demands, where tlie verdict is for the drfeudant. and tlu' only amount which the plaintitV could have recovered is less than i'20. McMlixtrr V. Ih,„, [ AIL \M . i-Sv\v»'nt «l4'f4>ii4laiil*> l>eaili— l§iiK:K:4'^lioii. If one of several defendants in a summary action dies I'ofore interlocutory judgment, the phiintitT should make a suggestion of the death in the memorandum of judgment and subsequent proceedings, or the judgment will be set aside for irregularity. Where such suggestion was omit- ted, the plaintitl' was allowed to amend on payment of costs. Crane v. Goodiuc »:t (iL, i All. 871. 1170 SLTKllSHDHAS. ft- IMl'll \il «I«'I»4M. \il ilelu't is 11 .u'oo.l plfii III a .Muiiaiary action of debt on a r. cord, iiu.h r thr At-t 12 Vie. caj). jii. Wrtmurc v. PrnniH. I .1//. 11-J. «-.lMIJ. Tile liiidiii;,' of a jury, imiiroix'rly .summoned, in a fiummnry action, is not final under the Art I'i Vic. ciqi. 10. l\ , tiiini; V. /,. m, \ 1,7. .MO. 7 ^l4'llllM'l' Ol %«.S4>|||h|>. .\ niemltt r of thr (i,iui-;il As.^cuiKly .-anuot he su.d hy a sumnnuT writ. und. r tli. Act 12 Vic. cai). 10. hrxlirmn V. st,-,i,i)),fin, I .1//. ."):i7. ^r.^i.viiKi rowK "rio:\. Sti- .lustier of I'l-aee. *»i :»i:»i iitv r,.ii:« T^ii:\T. •S'" Landlord and tenant. ^«'i'\ !«•«' i>f. .SV*' Practice IV. I*:ii'l> :i|i|M'>ii-iiiK« N < llistice ol til.' 1\ ace I \'. hi w. I 7. TIciiiIm'I'h ol lloii«.4> 4»| %H< iiiiisl Im' •«ii(mI I») hillj S'> Arr» n! :{. ^«-iiiiiU a«i4l<' iti. Sif Practise \'i. If i.«i pitimi: < 4»i KT i\ i:peal fro '11 a decree in E(iuity under the Act 17 Vie. cap. 18, sec. 82, may hi- made within twenty days fUter the minutes of the decree have heen settled hy the Ckrk. I'roxt V. \irhn[s. :\ AH. 297. For the purpose of ap[>eal, tlie decision of the cause is not the pronouncing the decree hy the Judge, hut the for- mal entry of it hy the Clerk, when perfected. Ibid. '■* —An appeal to the (j)ueen in Council, uiifler the •uder of Novembur Irl.VJ. from a judgment of this Court afliriiiin;j; a decree in i(piit\ , may he applied for within fourteen days afti-r tin luinules of the decree are settled, though more than fourteen tlays have elapsed since the jiidgiuunt was [ironounced. ISrodLjicId v. '/V/c .S7. Awlrcii--^ mill (JkcIxc Iviilicat/ Cojup iiiij, 1 .1//. !'.••;. •'\ 4'ost%. Costs ol interlocutory proceedings being generally iu tue discretion of the Court before which the proceedings are liad, a Court of Appeal will not interfere unless it is tvident that injustice ha> Iteeu done. .{Hen v. 'rr'iikolin, :i.l//. 121. As a general rule, a[>pe;ils aie not entertained in ipies- tions of costs. Ibid. ' Appeal doe?, not lie fiom mere opinion of Judge, f" - ( i> ' 'ill 1178 SUPKENfK COURT IN EQUITY I! ii(i '^t^w~m^m:^^ thorr muKt bo an ordor or dvcroe. Iloiht' v. licid, 2 P 26. Sfr further as to ApiH alH — Appoals. i 4'oHls IC«>vorKiil of order of JiidK«>. WluTt' an orcl( r of a .Tud^^o in Kquity is roversed on apjH a), tlio Court of Appeal lias power to order that tli? cr.sts of the proceeding's in the Court holow l)c allowed to the applicant. ]f'i'/'//;<.s v. Ifnnhirks, Ilil. 7'. 1M78, tt llvid<*ii('«> l>i*»ri-4>ii<>ii ii^ to nnv of. On a reference in !i suit in ('(|uity to taki an tioconiit. the liarrihter nccivtil evidence of a claim 1»> tht plaintitf in a matttT not mtntion^d in tlw reference, Imt made li^' report upon the validit}' of tin claim. At the hearing of the cause, this evidt-nce was not used, and a ilccree wn-> made witiiout noticing: this claim. //'/'/. on a) I'tal from this decree, Tliat tliinmli uiidci' tli<' V'-t 17 \ic.<-i]>. l-*^. :t wan pr\« by 4 oim .liidur uisiiiiiii;: l«>:ivr to :ii»]><'nl- St'e I'ractic* \ . .) «'r% iHi«>ii ol |>io<'<>4'diiiK<<> 4»f iriiHlrr^. St-mhlt', 'i'hat th( Court of Kquity has powcitosup.i vifne the procec din;;.- <•! Trustees of aljscondin^Mlchtors ai pointe.i und.rthe 1 I;. \. Stat. cup. I if), and to oinMi a;; examine accounts adjust- u l»y them ; l>ut it will not inti fere where there is nt) fraud, and the proceediuf^s ol '■ Trustee have been regular and no special ground is Htnft Outhiiuxt' V. Ilirkmnn ami nilurs, 1 llr of < oinl to siiiii'iid iilciidiii;;^ itt :< raiitc pnrto %in«'ii«lui<*iii«>. Set' Auiendnient 1. ■■"frrumS: IQlllTY SUIMIKMK COUUT OF JUDICATUIU:. 1179 ]oonmit. claim by tlH- plaintiff ferrncc, but made no n. .\t the boariiiKot ,,a, ana a dceree vn^^ /,,/,/, „u ai iH'al fron \,.t 17 Vir.'Hl'. 1«. ''^ , iM.fc.r. ibr Court oi to U8.' It. /''•'•''^'••^"' . l,.;iv«- to :M»I»«'"'' tvluus power to Hura- ;i.c.main^a.btor«ur- 1 2r», and to oi'eii aiM n but It will not int. I- tlu,. proeoediD-HoMa. ,,e,al ground h Btar.l. linn. '^^■ n iliiiVtA iM a * aii4«' i:x- Nl l'Ki:>|i: 4'(»| KT OF .11 l>l< ATlJIi:. 1— Juri«»«lirti«»ii. Tlio Ruprenio Court of this Province has no power to declare an .Vet of the Provincial Lo<^islature to he invalid ; either on the ground that it interferes with private rights, and is tlua-ei'ore unconstitutional, or, that under the Royal Instructions to the (rovernor, the Act ought not to have been parsed without a suspending clause. But see PiCg. r. ('handler, 1 ]Ian. 518 — diuce the passing of " The British North Amorica Act. 18G7."] Il'H. v. Kerr, Bn: ;}67. Sf,' British North America .Vet.) ♦2 Tilt' Supri'me Court, by virtue of the Commission under which it was constituted, may exurcise the same jurisdiction in regard to the discharge of estreated recog- nizances in this Province, as the Court of Exche(juer does in England under the Stat. :J;J Ibn. Vlll. cap. 'W ; and has a general discretionary power, under that Statute to e.\amine into the sulliciency of the reasons alleged inexcus ■, and to discharge a recognizance forfeited bv not appeariiii; for trial at a Court of Oyer and Terminer, and to stay pv •- ceedings on such recognizance. Iv' lo III' ti-icd. N'v I'racticT MI. l*o%%<'i' lo <|iia«>li'oi',>rt undd- tlif Insolvent l>(l)tors" Art -i 1 llev. Stut. cai-. !•_' I.)— iimi it ainteHrs. I»y the e\!iiiiination of tho dehtor that iio has ;4iveii an undue prefereiiee to one of his i-reditors. - flii> Court has lujwcr to tiuiish the order. Mrl ),•>(. ihl v. II ff. 4 row II IioikI \|>|iiir:ilioii loi- r4>li4'f ^iiiiiiiiar) appli «*iilloii. .SfV I'rac-tict' \ . (l. See ('oiit'i(h'rati(in >>. -I'rincipal and Siu'tx. ill4>i'aitioii ol |»o<«ilioii, l»> siil»<««>4|ii<*iil :iurr«-iiM>iir. NS ith li. a.s suret\. tntri-d into a i/Dinl lo t) |e hi.l; lilt', c-oiulitioned that \. >hould iiiaintaiu the i)laintitlMiiriii:. Iiis life ; iiv a .suhst'i|uent a;j;reeuie!it uiidt r >eal. l)et>V(rii the jilaintitV and A., without 15. '.s consent, they hmmdl theuist Ivcs to refer all liii it4a:o>. %<-tfliK4-||4-4*. Sir Action en A4liiiK SIS SI14I1. the ( line See Kviilenci \ I. •>. SUUlJOCiATK con IT. 1181 »i iiiHol\«'Hl drhlor. u' s\ii)i) >it limit r tin 'I *»iiiiiiii:i*'> :i|M>l< Kri«A4;i:. Sir,' Action on tlir Ca.sc II. :'>, II I. .■).— Ploading I. -2,29, :)7, ;{'.>. '>(). l{<-i4>|-4>ll4-|' to I'laii. Set; Trespass II. 1<). Ni i{i*Ki!si:. ,sV/' Ni'W Trial. — Evidenco VUI. :{. ^1 KKi:\i>i:i<. 01 Icasr l*iii|»o^4' \4'\v ti'ial. In ejectment by a lessee against his lessor, a surrender of a lease for twenty-one years was relied on by the latter, who resumed possession at the request of the lessee in a little more than a year after the commencement of the terra^ paid the lessee for a fence he had erected, and aftersvards huilt upon the land and re mained in possession for about fifteen years without any claim made by the lessee : a ver- dict for the plaintitf on the ground that the possession was ouly given up for a tem[)orary [)urpose, was set aside, in order that it might be again submitted to a jury, it ap- pearing that the luu'pose for which it was alleged to have been given uj) had ceased in a short time, that the lessor had other property which could have been used therefor, and that between the time of his resuming possession, and thf tenant's re-ilcuiand of it, the land had much increased in value. Ih>r v. JncL, 1 .1//. 17<>. Si'r Covenant \). SI UtlOiiVrt] 4 Ol KT. St'i- Executors and Administrators. I The decision of the Surrogate Courton all matters, properly within its cognizancis under the Act of Asesmbly ;J -'ic. cap. 01, as relates to the executor's accounts, is tinal and conclusive, subject to the api)eal to the Court o'" Chan- cery, except where otherwise provided by the Act ; and such decision will be binding on the Courts of Law where the amount of assets comes in tpiestion, in actions brought by creditors against the executor, liirri^on v. MonlinH'i,-, 2 Kerr 581. 1182 SlIIKOdATK col in ?r 9 ■*r«»luif4* 4 4MII-I 4;itiiiliiiK %4liiiiiiis|i}iii«ii j»,is «li i;niiit atlmin ihii-atioii without :i c'itiitimi on an . stat* of U\ juim)! • Uiii^ in ilif rrovincr. on tlip |Mtitioii of a itcrson allc-iiif liiniHrlf to hv a creditor of the (U'Ci-aHid, and that lie dii-d witliout K'Mvin^' any n. xt of kin. If a(liniju>tiiiti()ii is ir- It Kularly Kmntrd. application hIiomM hv nnidctn the I'rol.iito < ourt to revoke it /'..*• ,1. „i Slmir V. (ic,ti;.n, \ ll,ni. 111. -i %«lvaiM-fiiM>iM l*>is«.iim arroiiiils Ippcnl Mo or«l4>r f4»i- 4li^liilMili«>ii l*)iili«>s m ctviiiu tli(>ii hIiiii'i- I:s|o|»|m>I. ^\ litre the intestate, in his lifetime, p;MVe his tlaii},'iiter XI, 000, tilt .sanie \va> lielil to he ail iitlvain i iiient wliioh ouf.;ht to have ht tn taken into account in niakiiij^ a iii- trihution t>f the estate. The aecounts of tin estate w. iv pas^etl helore the .luil^^i of I'roliales, and the .liuli,'t' iiia'K- liib decree as follows: "I do t lier"fttre ihcrei' that tin ri' are assets \n the hamls <)( the >;iid John l''ord and Ihiriut Auu'usta K» attu*. to the amount tif ei^ht thousand tliit't' hiU'iirtd imd thirty-li\t) tlollars auil sevt nty ci nts, tn i"- distnhutetl anit)n;4 the 1m irs ami next of kin id the s.nd .lohn r. l-'ord, accortlin{.j to law." The apiitdiiints. hy tli' ir guardian, received their shar<' ()f this siiiii. ////, Th.it the jiaiHiii}.; of the accounts was not a distriimtion, and the decree was not conclusive a{.;ainst the apjudlants. In the passinej ami allowance of the adniiniHtratei accounts, the .ludj^'e of ProhateK has nothing' to do \\it any sum advancul to any of the next of kin. Iccaii.-' i] does not form any p^it'-'n of the assets of the dtiti»>«.i which have come into the hands of the adniiiiistratni^| It 18 not until he comes to make the distrihution that ;tii.^ (|«OHtion of tlu advauvt nieiit can arise. (^uu)', Whetlitr the api>ellant8 were estt)piied I'j receiving ' eir share of the money in the hands of th administrators -.' hi /- /""/'/ 1 /'. .(' />• •"''.')1. Price et. 'il\ AppcUnntH, V. I\>nl. Fraud- JiKlKf'ivfii^iiiK »|i|»li«iiliuii to sill nni e-i:ii(| See Estoppel I. 28. Er jmrlr Siinpsou. SUSPENSION' (CLAIM.) 118JJ iiiiiislnilioii Jiii'i^- ion *.o ^i';int iuliiiin- tstiiti' of 'a juiMm of II jicrson iillo^ius ( tl. and that lie <.\\v<\ adiiiiiiUtiiitioii i^ ii- » iiiailf til tlic rrolniti' ( l<)iri"i, 1 H'lii. 1 1 1. iiiifx \|»|nal - :>io ir^ irt civiii'.' tti<>ir The principles ol' iMiuity afe not excluded from the proceedingH in the Surrogate Court in tlit* settlement of estutcH. IliH. lrr<'Kul»i*ity <*1 |»i*or«M>«liiiu^s K<>iii(l on trial. .SVy Deed I. H). Ml KVF.Y. " Crown i^rant. Krtiii'ii of *«iii'v<>.v ill Miii't'4>.voi' CsciK'nilN ofHr<' is ad- ■iiiMsiblc to 4'\|>l:iiii aiiil>iw:iiitv in ^I'ltiit. Sr>' \Wu\oi\co II. ♦'). ^iir\<>> ii<»l <»:«list:irtoril.v a*«<-(>ii:iin4Ml. Str Niw Trial II. '1, '27. >oii<'c siKiK'd Ity ««iii'i4*>oi- i'ai in olHoial rhar- a('(4*r ^iitilricn4*>. Sir C'lMwn ' iraiit I. Is. si>»i*i::\Mi4»\ ,4 1..4IH.) '■ SatistiU'lion. A('t'**ptan ;;iv<'ii. Sef .\88umpHit III. 11- -Satisfaction—Action at Law VL I'akiiiK: bill for debt. See Bills and Notes V. ;U. Av:i'<'riii4>iil us t4» siisprnsioii ol i-i'iiK'dy. Si'r Distress 2. Persons beyond si>as. Sff I'jjrctnitiu LL s, l>ol«' payabh' at paitiiiilai- plarr -\«'e«'ssity o< P^^^. s4>ntni<'iit b('for4> re4'ov4*i'y. .SV,' Bills and Not. s VI. I'i >i. <'oiiip4»siti<>n ^ot4' ;;iV4'ii. S'Y do. V. «>--Jud-iuent I. 2. Bank siisp4>ii4liiiu: payni4>iit \Vin4liiiv^ up— l-iabiiity of 4>X4>4'llt4>i*S. iSVf Executors and Administrators IL 13. s: i \it\. I H lis I TKNANTS IN ( t)MM()N, I' i , ii I 1 I ivi:i<\ ki:i;i'i:k. ^rllliiK li4|iior oil ri 4-«li|. Srr JiilU ai„l NntrH \ 1. a~-('ic(lit. .sVf Costs. 'IM\I>. .S««' AshCHSllU'Ilt. ' WlM-ivpfi-Hoiis jointly iimiinfiu-tur, tiiiil., r.wLi, || is to l)f dividtd iK'twtrn tluin, tlicy un- lud inutiurs, liit tcnantH in <(»ninjon, jind . ucli lias u ii;;lit t(Mlivp„se only of liiH own slmr*'. ll'i;i;finH v. 117///, , />,;•. U7. * (,hinr,, Wlu'tlur an\. ami wimt acts. >ii.)rt ,>( thr (Icstriu-tion of tlu- joint propiTty, will (^iiiiiilc one tonmit in common to sustain trcbpuss u-^ainst liis cof.-iiimt. //,/,/. » If ouv tenant in conisnon. with tlu' coiistnt of his ri»-liH]mt, sells moic tlian liisown sliarnol' the foianxni jtroperty, lie will he dt-emtMl to huvo acted as the a^'eiit in r< ;*p, et thereof. iMid an artion for money liml and ivceivtl n.ay I'e 'Maintaiii' il a.'ai:.>t him I'V his lO-tcuiint. Slim •:. (innit, Jur. IIO. 4 Where two persons ent and haul tiinhcr. iiiiii'i an ajjrvement that the timh.r is to he " ^ot on thelialvfs. they are t< nants in eoinmon. A'- ;•/• v. Cinin,U, lin. 18;: .1 Oil,, tenant in eonnnon cannot iccover in ii> Hnmj)8it against his co-te-natit. for his share ol the conimoiil propifty, nnlesH a sale by tlie c(j-teiuint he proved. /''H//''| V. Toitlor, lirr. 'itM. H The saws, water- wh' el. ■ * a luiu, tli prop* rty of tenants in common, a at of the ii 'li tance, the danuii^m;:; or takin;^ awa\ which, e.vcciu Aitij intent to repair or replace them, is in tli- n; ure of wastt. for which one tenant will he ans>verahle to iiis co-teiiaiit| lAuUm V. WiUitu, 1 Kor '2'2M. Arliuii l»>, iiioii4>> liail jiimI re4ci\e«l |{<>ii4i<-riii»; :>< j <>UUIII. One tenant in common cannot maintain an action loii money had and received a^Miiust his co-tenant, tor r< eeivinj T i:\.\NT loi; Mi'i:. 1 1 8n il'iii-tinr tiiiil't r.wlii.'h ii-f not iiiirtmrs, I'lit li^iit tu ili-[u>^t' (iiily U,r. !>7. wliut acts, >li(>rt 'il will cualiU'onf tenant it his cotcnant. /''/•/• 1, with till' constnt of I Hhiirn 1)1 tlu' commcii uotfil as thr a^'eiit in iiu-y hiiil and ivceivnl is <-(i-tt'n:int. Siniif V. nd haul tinihcr. undn- J '• jTc^t on tlu'liaivi'S,' r V. Coll III II. lin. \^'-'>- cannot ircovir in ab- i shar»' oi tlu- coininoti „vnt U- i-rovr,!. /'"'//'' maintain an action ioi eo-leuant.lornceivm^ iiiMif than h's share of the rents and profits of the joint property, unless thorr is an acu'oimt settled and halance a^'roed upon, rvi'ii thou^^h the d«if(!ndant may have ueted as hailiiV of the other co-tenants in receivin*,' the rents, l-'rii.'isliriiir, 1 Il.in. 7U. Defendant l»ein;4 a tiimnt in tiojiinion with the plaiu- titVs, who were infants, i . ndrrid in an arcount, in which he arknowh'du'id a ctrtain siun to l»r dur from him to the pliiiitilVs. as their share "f the rmts of the joint pro[)erty which lie had received: the i>!aintil"l's' guardian disputed the correctness of the account, anil claimed a much larger buui from till! defendant. Ilihl, in an action for money hail and received. That such balance not having lieeii Hj^recd to, th" plaintilis were n(>t entitled to retain a \erdict for that amount. //'/'/. I.iiiiilalioiis - A«lvri«»<' |»o«»*«'«»«.ioii. .S'-r Limitation of .\etions IV. '2;{, 24. I.:iii(ll4»i-4l l«>ii:iiil ill 4-oikiiM4»ii Il<»l4liii;; as iniaiit oil II4'\\ t<>l'lll*>. ,s'.v J landlord ami Tenant II. <« pass .liistifyiiiu; a*> Iciiaiil in (>«>iiiiiio 11. Sfc Trespass II. -iii < oiiv('>aii<'4' l» ;;i-aiiloi' Opci-alinii. .S'(V Deed I. -liK OiisUT l»v 4'<»-i«>iiaiil i:\i«l4>ii4-«> <»l. .VltliMlce 1\ ri:\iM' U\ 4 OI KTI>1. l*osM>«.o.ioii ol hiishaiMi :i«> t4>iiiiiil Il4>ir'<* riKlH ol <>iitry. Sec I'jjectmeut 11. 7. Wilt' 14'iiaiit ill ivv ot laiul IliisbaiidS i«*M«lt'iir«'— ('ro|»s rais4><| l>> liiishaiiil liiubility to •.ri/.iirc. /SV(.' Execution I \ . D». VV.y i'ST I'Olt I.IFC. The tenant ol a devisee for life may after the death of 1180 TKNANT AT Wli.i.. 8iicli (K'vis.r. 1),. ousti il bv til • risnuinilcniiiiii without a notic',' to (|uit. l)<>, .Imi. i'uhls v. .!/< K'Hi, '2 Kiii lo piirrliiist' ro<«s4>ss.ioii iiiuicr. \ {)or-^on Irt into po.ssr^^ion oi huiil >>}' t'lc own mult r an aj^rifuicnt to jiurchaKc has only tlif tstatc o: tenant at will, unless iIrti. ih tioni" a^ncuunt i\.spt'oti thi' occupation of tlu- lantl bifori' tln' sale is coinpltt Pitt ili'tn. CU/f V. ('tmnaiiini, II- r. ;5S-i. S l>*^trriiiiiiiiiK iriiiiiK*} \oli«-<* lli'iiiuiid. A. entered into a bond to convey land to 11. I.i.^ he «>r aMsij.jns on payni' nt of a certain sum in live yi.ii l)efort' \\\i' day of puynit nt. A. died, liaviu;.; devised t land to his wife Uw lifi . aiul aft. r her dcatii, to 1 children, ithe lessors of the plaintitV. i I'-. assiLjiU'il interest f.> the plaintiif. wiin paid tiie pur> ha-, nioiu v tin- widow, anil recei\ed from her a deed o! ii.ir^ain .sail-. After the (lath id tlie widow. A.'s diildr/u hroii ejoctment. //.A/. That tin d-ed fr.)in the nidiw to ih.f, ji hint t rminated any ' .lan } at will that ini.i^dit L rxisted. and that no Jiotii < to .piit, or demand of pos.- sion w s neceB-ary before hrinj^in^ -he action. /'"'/. ^ L. luivinj.; been in jiossession of lanil upwa of twt nty \ears, made a written a-j^reenunt to l)uy it ti the lehs r of the plaintiif, hnt before the time of payin w.nt away loavii);; the defendant in poss-sMoa. // That under this a^'reement I., b.-cauie l. iiant at will that Hucdi tenaney was termijiated by a demand of po- sion ina.le on the defendant wl o claisned nnder h., the such d. nnmd was not nnide on the hind. /'' v. IMV. All. r>.-s. 4 A person taking' posset»Hion oi land uiid'i agrt'eintiit to purchase, which specitied no tnuc for continuance ol th.( iK»«MeHhion in the event of tlu purcl TKNANT AT WILL. 1187 Dot Ix'in^' completed, l)Pcoiur8 a t( imnt at will ; and sncb ttuaiicy niUHt he t( riniiiiited in- some act of the parties. I'cfore he can he ejected on tion -completion of the pnr- ciiase. Ihw V. Di'Hitii, )\ Ml. ;"(). The Act fi Wni. I\'.. cap. l:!, sec. 7. does not apply to >i]ch a case; hut only to (nustions arisinpf under the Statutes of Limitations. Ih,,- \. hcinii/, a All. ^A). « -DrtrrminHtioii of K'liniu}. A tena)ic.v at will is <1et. rmin* d l.y the entry of land- lord upon the land and ruttiiiefendant went into ]iossession of land a« tenant at will to the h ssor of the plaintiff, and remained in upwards of twi iity yiars. fItliJ, That the t(nanc_\ was nut determined h\ an entry of the owner within twenty years, with consent ot the tenant, to run the lin( hetween tha* anni. S>e l)eo(l V. i>. I'iinithiion of action A|»|>ii('»ti4Mi. 8; St'c Limitation of Actions I. 2. 10 A tenant at will cannot maintain an action against his landlord for c nterinj; upon the pr( miscs and imlling down a chimney, such an act merely determininfr tlie will, lirewiwj v. Hrrpmiiii, 2 Pun 118. Act will uot he deemed wrongful if it can he referred to H right to do what Ik has dont . //'/(/. HHi B99H ^[^^^^^^^^^^^^^^^^^^^^^ 1 m T '1 ^■■i'SSjjjjjjl , www i - \ 11H8 TI-.liMS NO'lU'K. |M>s«.<><«^ioii Wli:u iii:i> 4-UII<.is a*.. Str Jiiindlord and Trnunt 11. .">. T«'iiaii(-) liilniiioii. An a},M-cinu'nt was niadr l»y \. and 1'.. l.y tnutual hoii for the 8uk' and oonvt'vancc ol lamls hv A. to 15 on [Ii nicnt of a cirtain sum on or Ixfon* the jst of May l,s2!). jjrtluT with lawful inltTcst for thr lirst tlinv yours, mi t'ij^lit i»i-r ft-nt. for tlic last two yrars ah a (•oiisidorationf tlu- ust' of tla- land. //.',/. That B. who was let into pi 8»'8.sion und. r this a^'itt-inent was tenant for years un tlie Ist May \6±). I >>>,,{. Clij}' v. Cothurnij, Un\Ul. %1 urkiiiK Isii'iii oil sliar«-s. Stl i*<*ii4' and l4>ii4li'r to |»art ol' riaiiii. .Stv I'leading \\.'i\. Whtri' a justice on reeuivin;; notice of action niaki- triider wliii'h is not paid into Court, and tln' jury (in 1 ' tender sulhcient, the plaintitf is not entitled to haw a vi 4-4>\4'r) 4»l iii4>ii4'> \tilli4>iii |»r«>4»f «>l IcimIoi' oi iin| So Condition I'recedcnt :{. Ti:itvi. %l»pli« siii4>ii |4» aiii4*ii4l HTiii ill il«'4-laraiioii in e|e| IIM'III. ,S«. lijictUKUt \ . I. 'i'i:itM«% '«<>i'i« i;. I'lail'liiro Iilt4*llli4>ll 141 |M4M 4'4-4i III 4 aH^e. ,^' IVuctice 1\. .">, ."» (I. KK'fUtiikK v%ril of iM«|iiir>. .So I'ruclicfc IX. \'2. TlMHKl;. 1180 i T- ^i n»;-7r . ffiir i H B njWi *.«>i«»ii Wli:il in:i> be Ti:i«;7ii\%'rio> oi^ i*|{ !>[<;«< iiul l'>. iiy mutual Iniiils Is by A. to B. on pav- the I St of May is-i'.l.t')- • first thri't? yoars. aiil •s Uh a consideration fm- . wlio was let into |)0->" tt'iiiuit I'or years until ( 'oiiiitniif, Her. 882. «l«'i- to purl of olsiiiii. lotico oi' action makt> a irt. aU'l till- jury I'm Iti.t ,t eiititluil to luivi' a vtr- •,.,l. (iHn>!i V. /)(/'/"' .'i loot «l i«'IhI«i "• «••'*••• , drilaralioii in st:tiii4>iiliii'y ('ti|>:Mil.v. S,:e Will. ^(•r KN'^^'ltioll. 'l'i:«^TATI II. IT.NTi: (SVf Executio!!. Sec Crown (iraiit. ii>i: TiiiBi:i<. Liability l« N«*i/.inr. ll timber is cut u[)Oii erown lands, over which this Province has exercised and continues to exerdise jurisdic- tion, it is lial)le to seizure her(\ thoui:;h the territory where it is cut is claimed by the (jovernment of Canada as being I'art of that Provincf, and license to cut timber has been ^rantt'(l by that (luvrrnnient. 77///'(7.s v. Alhni, ;"5 Krrr •im. I'loprrly ill u lioiii. A. beuig inouds ; and that as A. was only cniitloycd to manutacture the tiniber for the |)laintitr at a certain rat> p: f ton, he vsaci not to charge A. with the tt)nnage oi' t'\|K)it duty, as wiiB usual where lumberers brought timber to market on f. //./(/, That A. was only the servant uieir own aci-oun t'l the plaintiff, and had no right in the tiniber. -the pro- perty in Nthich vested in the phiintifV as soon it was cut : 1100 TOYS WlIAUFAriK, i! » ami that tlu' mvn cinploytHl by A. in i,'t'ttinf; th<' tiinbi hiitl no lien for tlieir wages, ('nmr v. UiUrhinxoii, :{ AV 6Vt' Liconsf — Trovor — lieploviu, rmi: (< omi*i imtio^ of.i I'iir tlay ol" service ol' tiu- ruU' to plead is tobei compiiU one of tlu; twenty days allowed for pleading. Cli'ira Sroulhir, '1 Kerr t»'27. Motion** \vh4>n U* !><■ iii:mI<' llajs st'i-virr -IXviirfs. Sir rractice 1\'. \'. Word** "ul l«'ai«.l." See Practice \\. :]. for piii'|»o<«c% ol .lii*«ti<-«-. t oiiri uill tak<' ii«*(i<-<*ol lira ot dii) wli«'ii |»i-or4>«-4liiiKH had. Ser Kxocution I. 7, '11. I'h«' «%<>iHl'< '* Within tlir<'<' iiioiitlis tli4>r4'rrom"r«'lato;i w<>li to 4-a»»4's uli4>r4- flirr<> lia's b<><'U ii» apiicm ttnc4s a«i to «-as«'s \% Imtc 4l<>f nidaiit hits iipprart'^ See Practice in E(iuity I. '27. '■'iiU4' lor app4'ariiiii'4- in < omit) <'aiirl. See County Court. " AtUdavit 11. TiTi.i: ro i.A\i>. " Limitation of Ac«ioub -lijeeiiaeirt -Dowor ritl4' to land in 4|u<**iti4»ii 4>n trial 4»l°<-au<»e. .s>e County Court — -JuHtice of Peace. *4tuiiitory lllie. See Evidence 11. 3H. T04ftL««. " l)ibtreUB. TOVM Wll %KF4<*K. '• Wharf. TUESPASS. uyi in j^fttinri; tlii" limbur, ■ V. Ihdrhinmni, ',] AVi/ 'io:> oF.i « •.«*i-vlr«' -!V«ti)TN. Waivvr ol. Ser Assumppit III. 'H\, 27, II — Use and Occupation, 4. Wroimrlnl .rt ol lulfiiiK >iinl»<><*4k«iii4><>i.ioiiii prop4>rt>. S*:e Joint Tenancy. Ti{A\!^ri:K. " Cl-Mittel — Delivcn -Sliipping Law, (J. TKi:\«>i| KER. " Deputy Treasurer. %vuv Faf'isi«i-Niiiiiiii:ii> :ippli<:itioii for ri^licl. See Practice \'. (5, 'rKi]iTi\4;. ■' IKNCK. III. PkKSONAL PUOI'KUTV. IV. Damagks, V. AH8Al't,T AND 1''a1,SK 1 \| I'l.TSON \| KNT. VI. MlSt'KLLANKOUS. I. HkAL PuOI'.lltTV — I{lGHT 10 M\ IN IAIN AOTION — SUFPIOIENCY OF TlTLK — PaKTY. 1 Priv«'loy:»' l^iiiry ii«'«'i»s>jiry. A fjjraut from the Crown oi' ;i privilege to build millb in the 1)0(1 of a river does not t-onvey any riglit in the soil ; therefore the grantee cannot l)(>fore actual entry in the ex- ercise of the privilege, maintain trespass agiunst a person for building a mill upon the place where the privilege was grant, d. Frink v. /////. K>ist. I'. 1831. tt— K«>KiHt<>r4'«l il<'4'tl Acliiiil :i po!»N4><>t«»ioii ol dt>- If'iidant. A deed registered under the Act 26 Geo. 111. cap. '^ !--vl 11 '..-J I i;Lsi'.\^>. will not ciHirt to '^i\<' |.()ss(hsioii to tli- -raiiti ,•. nm as to i alili him to iii;iii>t;iiii tr>i'ii^> ;i";ii'i^t ;i pcisi^n in i iicfuiil iidvt rs.- ].(.->cs>i,.ii o: tjir hnij. ;iii,l uim took 1,0 session >uli-.t iiiunl to tiu' ll•;4i^ll•.v ot tlir (IkiI iiinl the rut of tile plamtilV un.il r it. aiim>.ii>i (><| <|«-<(|. An ui;i c ;;i>,u 1 ( (I (if! il tjaii>t( r.-> 110 jiro|M ii\. aii'i ■.i\ nori;;lit to .iitn on isnui. l''itt,'i-.-«,,i \. l',,i;ih i/, :> All.'):): 1 lam > u iilioiit lilli- I'liiid p:iil> ^iiOiriciic ) ol |io H4'<»sioii .lii«l;;4' .liii). An intry hy a piiMtn witljoul title, on land in t icuctiu occupation of anotlin- dot-.s not ^'ivt hitii a jMri.Ti'S;>ioii t • 'nividc him to nniintain tiTspass cvfii anaiiist a tliirilpi .^OU. M< nut V. i^htiiit'ui. Hit. 'JO!*. .y riaintilV under a (dann of rij^dil. l)Ut witli.mt uii title, eiitert d on land in ilie actual i>ortst'rision nf !l aiul witiiout ^..■.^ authority — .surveyed a [lart of tin lai-.l ami \'\\ \\\> a fence tiuTt (»n ; tin ft net' was pulled down and stroyt'd hy t he (K-f' ndant. //«''/. i iiat the phiintitf liiui any pOBhtB.-iiou o! tin- hind to cnah!>' him to inaihtaiii tr. jtaSH, thoui,di no connexion \va> ^h. \vn helwe. n the d' !t ant and \'>. Mtrru!:;ci( nt jioHbe.-i« i<>i«Mi liii«- I'iirol :i;;i-4-<>iiii'iil. W ill re the rt.^peetivt owners ol aiijoiniu{^' lots, u^to purol to a diviHion lini . it is hmdnig upon thrui. tliniij. muy diller from the line to which they had pr. viuUHlywi pi»d, and t»nu ujji\ maintair trcspar-s aj^ainsl the otliu an entry v»n a part of the land, which hefore the divi- iiad h.-.ii 111 the defendant's [lossussion. lAinri iu<' \'. ■ H 4il«'li4* < liiirrli 4 or|M»i alioii Iti-rtoi. Where lui.d K- granted to a C'hurch Corporatio . ;: ^^lehe, and a liector has he- 11 iliily inducted, lui li:;'^ TURSPASS. ll'J:i \r ;^r:ilit< < . >" :is to rh- linst ii 1 ( i.-^oii in l! I'i, uiul v\li'> took l.i'.«- the ill 1 il iiml iliL' I'lUi) ,('(l such [)()SM'«sioi'. tor ;iss. / iiiiiJi'iiii V. hiiKi, 11(1 juoi'i ity. aiM -H'- i( V . I'lii'ii' :i, ■> Ml. <")')o. i> *»iii1i«icii5 .vofpo".- \v, oil hliul ill t KMrtlUll VI liini :i p.is.-r.-'^ioii t'- ■vn a^iiiiirft a tliii^l ['i'- I' 1 i}^hl. l)Ut witliout :ui\ luissesBioii 111" !' Mh^- j.;u-l t)l'llii' laii>laud['ui as i»ulltHl down iiiul iK- ■iuittlu'pl'iintil^'l''^'*"^'^ [, hiiii to iiuiiiitiiiii trtP- ■wii bolw.H u tli> (I !fiul- /•. -21 m. fssLii IM ^ lit 111'' ^"'"^" ■III. I luijoiuiii^ loi>. !it:>''' ''.^ u^ iipoii lh« in. tlK'U^l' It tluylmaiu-.vioUBlyufcu- ar.>a«uiMslil'^'^^l'^''^''' s>i()n. Lannniy v. 3/ • I Krrr i))]". *.t ('iiiii-4'li (orpoi'atioii. An action of trespass for damages done to a Parish Church may he hrougiit in thr name of tlie Church Cor[)ora- tion, in the absence of proof of there being any Hector. I lector it'c. oi' St. (iconjc's Church v. Coni/lc, 1 Ilait. 020. 10 -Va<'iiiit liiiKl— Pos«io«i«iioii— \% roiiu «loi'r -Oiisli'r A Crown surveyer in IHM laid nfV a lot of land for .... in rear of land granted to plaintitV, intending that one lot should abut on the other ; in ls:5:J, thr plaintitl' had the sidi- lijii'S of his lot run out, and niarkud up to A."s lot, under the belief that it was the rear line of his grant, and exercised acts of possession over the land, but in fact the plaintitVs grant did not exti-nd to .V,"s grant, but lift a piece of vacant Crown landln'tween them, — defendant afterwards built a camp on this piece of Crown laml, whicli the plain- tiff pullrd down. In trespass for a second entry on the land and cutting trees —11 -hU That tliougli the plaintiff had no title to the land when' the trees were cut (it being outside the bounds of his grant), he had sulHcieut posses- sion to maintain trespass against a wrong doer, and that the erection of the camp by the defendant was not an ouster of the ijlaintitfs possession. Morri>ioit v. McAlp'm, 1 Knr (>5(). II— :via^l4>i'«« (l(M>4l llort»:siv:oi- l><' l»oiii«> :is|M>i't:ili«>. The purchaser of land under a sale by a master in Chancery in a foreclosure suit, whose deed is duly regis- tered, may before entry, maintain trespass do honix ((upor- t'ltk, for trees cut on the premises and carried away by a person elaimint' under the mortgagor. -Lirrix v. Fjihvtt, 1.1//. (>♦). I'i — i'liii-y l>«>fiii4Ml lioiiiidtirirs l*oss4'«<*tioii. If a party enters on land, under a registered deed with ilelmed boundaries, with the intention of taking possession 7t) IIIM TIIESI'ASS. Hs (nviur, aiul not as a mere tr liumh-cl ;ii. forty acres, was ^'rantid to H. in ls(i:>, soon alter wiiic hf h^ft tho eountry. In ISI'J. li's lather, without ;ti! authority eonveyed the land to I',,, who eouv.vtd to l\. ii IH'I'k K. took ixissossion of the land, cut fiiulxr upon it ran out one of tin- side lines, and in is-js cdiniyt d it \n I who also (mtert'd and lunihtrrd ujxin it, and cnuvi vtd i to till plaintilV in 1h:M. Tht several coiivr\aii(( s wit registered. The plaintilV cleared ahout an acr( of tin land, which was the lirst improvement, and louuiuiici luiiiline a liouse in ls;io. when the defendant, the In II., entered and forhaiie him : the house was not linisli ftnd was burnt soon afterwards, and the land rciiuii unoccupied till Is.'iO. when the [ilaintilV huilt auotir r iieii after wliicii the defeiidant a;j;ain enteral, and <'u\ tr upon the land, for whi(di trispass was hroui^dit. // /'/ {•er I'arker, Wilmot and Kitchie, .1. .1., Carter, C. •!.. ; N. I'arker. M. II..
    • . II ■>«' lioiii*> \*.|M»iiiili*>. Though plaintilV is not in possession i^'i laud, it in r '1 r ,11 'IIKSI'ASS. 11! 15 isor, lu' inuy bo con- •holi' lot lU'scribO'l m actually (M'cui'iod or )ntiinu'(l for twvnty ,i()n for tlif jury with thr Iniul. (P'ri'iiv- ,.i-, ('. .1.. aii.l N. Tar- ,,x V. Ilrhn.-!. //'•'. 7. in;; twii liuiulrc'l ;Uii iSD'.l, soon ufti-r wliifl: ^ latlu'r. without tiny who couv.yiMl t'l K. Ill 1,1. cut tiuil)tr ui>(in it. IS-JK couvt y. (1 it to I . ^)on it, an.l cnnv.vttl it .•ral ^'ouvt■^anl■.^ wcrr al)OUt all acrt <'f t''- tn..'nt. ana coiauuiia'l .IrtVuilant. thclifir"!" lousc was not [mAn'l ,ul tlir lana rrUiaiiiMl litVlmiltanotlrriiou.. : ..iitorc'l. an.l <'ut trr^s Nvas hrou.-jht. /''•'•-' .,- Curt.r. C.'l.-">'^ . Jriiat iIh' I'liT ''''' intitY. ana thos. uiuhr ■ej^islrrra a.rds NVltll 'I- ou of taking inissession , uierc trcsi.asscrs witii- ,„, ,onsiacr(Hi as liftvm^' ana not niorrly of that 'such possession, if ^on- ,,thc.atacnaanfsnglit. ,.siou of laua. :f ^ ^^' till' title 111' iiiay, since the Act '21 Vic. cap. 'in. sec. .'), mainlain trespass ilf hmiix nxpnrditi-i for carrying' away trees from it. HivL 15 1loi-lu:iKr<> llxonilioii :i;;:iiiis| iii(»riu:iy:or li4Mii*< :i«<|»oi*l:ilis. Dr A niort^aj^'ee in iVe of huul, who is not in possession cannot maintain trespass -/< hmiiH asportiilis, a;^'ainst the Slierill' for sei/in;,', lUhler an e\('LMition aj.; linst the niort- e;|i.;or, lo^8 cut I'y hiui with the mortgagee's [termission, — no (li'livery of the logs htiving hceii made to the uiort^'agee. Ih'^lhis.iii V. MrPhrUiii, ,- ,1//. :{'27. lU .l4»iiil li:il>iiit.v <'<»iiiiiioii l*iir|>o««<' ^cvrral drfoiiil- aiil«> ^i'|>:iral4' fi'cspasscs. In trt'Sjiass aijainst several defenaants if they go u|)oa tlie land with a coninioii purpose they are jointly liahle though the acts of trespass are separate and are committed ou diU'ereiit parts of the land. /•V/■////.^■u// v. Savoji, 4 .1//. 2t]3. 17 <'i-o\Mi i-IkIiI INrliral IC<>asoiiaM«> ii<»<> oi' wator— A., hy will executed in 1821, devised lot No. 11 to his s(ju (i., except one hundred acres, which he gave to other rliildren, and he likewise gave to his son I), the privilege iif kee[)ing a saw-mill where it tijeii stood, with a log and lumber yard, without molestation or hindrance; hut not to dispose of the said mill privilege to any person except his lauther G., or his liberty ; and all the remainder of said lot No. 11, to remain and to he to his son (t., with the above I iceiition. ( i. died in IS 111, having devised all his property to his sons, one of whom was the plaintitV. The plaintiffs I'loperty was e.scheated in IS52, and partition made be- tween the Crown and the other heirs of G., by which the t«a\v-mill, with the log and lumber yard adjoining and the privilege of water for the use of the mill, were awarded to 1"., to hold according to the will of A. The Crown after- wards granted its portion of the land to plaintiff, excepting the saw-mill with the log and lumber yard adjoining, and the use of the water for the mill, as awarded to D. in the 11 'k; ruHSP.vss .1 jmrtitioii. I>. ditul in ISIU. auil dovisod the saw-mill iiii.l lirivch'Ki' to the (It'l'iudunt. TIic pluintitT had ii fiilliiifj-uull on 'lit' liiiiil ;^rant.»'d to hini liy tin' Crown. Tin tiilliii;^-iiiill and tin saw -mill w»ri' Hn[»|)lii'd with water IVoiu the siiui' jit|Uoduct. I'oth mills could not hi' worlunl at thr siiav timr, and wht n tin- Inllinfj-niill was in operation, tlit'uut.i was divrrf' (1 from tli. >aw mill 1»\ an ti|M niii;^ in tln' a^K- duft. JIIJ, in trcpass tor taking possession uf tiie saw- mill, injurinj; tlic gates and divertinj; thi water from tli' fnllin{.;-niill --Ist, That if the will of A. ^ave l». .mly a lil. c'Htutt' »n the sawmill, th-' plaintitT had no riu'ht, iH aiiv int< rest he mi. -lit lia\e iiad a.-. lUH' i»t the heii> of A., \";i" i'soln'ated to the 1 'row II, and ' xeepted out of the ^nuit (i him. '2nd. That in such case the defendant, as (tuc ol' t!i( In'irs of A., would have an undivided interest in tlif .saw mill with the Crowi:,and not with the plaintitl'. :5vT T!ia' if, in diverting th. -\ater fr^un th- fulling-inili. the (lefcinl ftnt did no morei'ian was n^fcssarv for the reasonalil' use of the water for tli. -aw-mill, the plaintitT oould in't i' cover for that act. and that su.di -pieslion s!i"uM liavcli.n leftto the jur.v. /'-,//-// V. I'l.h'tt. 1 //-/». l.*(l. 1% l'.\|»iil*>ioii I'ail ol 4lo<»4'. Expulsion of plaintitT from part of the (dose is sutlioi' to sustain th.' cMunt for .-xitulsion. (ifswi v. ('•((;/<>, .1//. »;.-,;{. |1» .loiiil 'i. To niamtain trespas... tlie plaintitrs possession slmu have the clmraeteristics of tin; possessu)n of a poriiiane owner, shewn by ads done with the apparent object ot ta inKiK)SBessu)naHowner,-^nn-re casual acts of a tiau-sie or temi>orarv nature few in number and oecurrni^ at lu| intervals, are n.)t sulUcient. -l"''H v. />'"/'>• l^"' lh«l'2. TIIKSPASS. 1197 of thf i;losc is surtk'ii lit 11. iii'sici V. C'liV/'S - l:ii III <»•» •»lisi'''"" If ^luiresaiiaurcuiniKU owni'i- of the fiirm, Iw^ . own.r fi'oai niiuiituin- l//„.,/,„,,2.1//. 'l'"i^' iititVs vosstHrtion 'il 'I'lii' /""< ".1 '" '/»" was a siiiiill uiiLMiliiviitcd island iiud tlic acts of possession rrlicd on wtro fasf.ttniii;^ plaintiffs ntt to a trt;c on the island annually lor about twenty years ; collecting' drift wood upon it, and once [mttinj^ a calf there to pasture- -//'7(/ iiisMt'licit iit. Ihid. •i'i r.iid'.v liiK'iilioii D«*<'4| Xvf* of'|>o«ii*ios*>iioii. There is a distinction in the cluiracter of the possession wiiere a iiersnii cntirs on land under a registi-red deed, and where he ;^oeH in without any claim at all. It should be left to the jury to say whether a person entered on land with tlie intention of taking jjossession under his deed, or, as a mere trespasser —the mere fact of a i)erson having a registered deed of land, does not give him possession of the hind described, without shewing acts of possession. (i.,r- riiinr, ctf., ot' tlw Mn'h-ii-i lliitiid V. lii/'iu, Mich. r. IMOI. *i:t i*o«>H«>«>«>ioii >iiilliri4'iiry ol. The Incite ill (jiio was the rear [jart of a lot of wilderness i.uul granted to A. in IT'.'l', in a grant containing a number (if other lots severally, each described by particular l)ounds iind lines. !t was proved that the plaintiffs father was in [)osseSbion of llie front of the lot in 1821, that he built upon and improved it. and that in I8;i8 he had the dividing line bcrween that and th.' adjoining lot mariied nearly to the rear, that his right was never dis[)uted, and that he died in possession, and devised all his property to the plaintill", who rentinued the same })ossession. No conveyance was sliewu from v., or that he had ever been in possession of the lot, (11- what boeanu' ot him. Ilehl, per Carter, C. T., and Wil- mot, J.. That the plaintill" had not shewn a sufficient pos- session, either actual or constructive, of the rear of the lot, to maintain trespass even against a wrong doer, and that II eonvevauce from A. to the plaintiffs fath.r could not be presumed, (i'liidiii v. McKillinan, - All, ;}'.»2. JIdil, per I'arker. .1., and Street,-)., That in the absence of eviden. e of a wrongful entry, it might be presumed that the plaintiffs father entered by permission of the grantee, and, thvw being no tidverse poss.ssion, bis poss.^sion would be presumed to extend over the whole lot, as one un- ' w llli.s 'n;i;si'Ass. • lividrd clnsc. Urhl alh(». Tliut as the (IcIVudunt did ni ehiiiii till' land under aiiv li^^ht di lived lioiii tlic ^runtu I'ljt as luiii^ part of another nvaui in nnr. and tlic .|Ur; lion was the lomnhjry linr h. twt'en the two ;,'niiit.s. Ikw; not .ntitlrd to put the phiintilV to proof of a docununtiu title. //♦7^/ al>;». Th;it thr rniininj^ the Hiir in ls;;S\viisii act of possession of the \vh(de h)t. (imidin v. MrKiHi'imi, Ml. MD'i. *^l I'l ioi- |M»sH4>«.Hioii riilr. A |ii rson takinj; pMssessioii of land witLuiu titK eunnot nniintain tn-spass aj^ainst t)ne wiio li,i> u luiu l»OBS(b.-ion of the hind uiuhr a Crown ;^r:nii, and wit lines run aecordinj^ to tiic ;;rant : e\en llioiijj;h it coim-y no tit), in constiiuenee of the land havin<,' Im . n iiitvioiisl gini'tid. Cirihii'i V. II liijiitl, , :i .1//. '2~'A. A defendant in possession under siudi ciriMiin-laiicis, i Hot I'ound U) i>rove a titlr iniiler his j^rant. a- tin idaintii acquires no possession. //>/tllfli('ii>iil lillc lo i-erover iipoii iMil4«'. hi trtspass for hreakin;,' and entering a cIum ;ii euttine the ^'rass. the plaintitV failed to pr"\( any jiaii' in which the Inrux in ifiKi was situated. //'/''. Tliat imi in poHsession. lie hud nevertheless sutVici' nt titN to ^rass t»t enahle him to recovei ^n l\iv «.t»l4' .\'>t|M»iiavil. Tlic ownor of land, subject to an estate for life, may main- tain trespass '/c />«;///.< uxiinriuiiH f )r carryinj^ away trei'S which have heen wron^^fiilly cut upon the land. Alcrni'l'i- V. ii>irtt, I riiii. ir.i. A licnsc ;^ranted hy the government to cut timber on Crown land, gives the licensee no interest in the land ; thert'fori; he cannot maintain trespass under the Rev. Stat, cap. l:};'), against a person for entering on the land, and cutting down and taking away the trees, l>rrcLcitrid>i'- v. U'ooilii,;; ;} All. ;{():j. '29 (iii-iiii|4'4>— \%'>il<'i' |»i-ivil«>K4> i^si«>(>iii<>iit. A dcnl granting all the right, title, interest, I'tc. of A. in and to the " watrr privilege '" of a i>ii'ee of land, con- veys only an easement in the land, and no interest in the land itself ; therefore the grantee cannot by virtue of the deed maintain tn-spass for an entry on the land. WiI^od V. Sinrhiir, :\ All. )M)]. In trespass by \V. Iteing in possession, claiming under the det^d, the jury were directed that he was in possession of the land by virtue of the deed, lld'l, a misdirection. Ibid. Qmnr, Whether if the case had been left to the jury on the question of possession alone, and they had found for the pliiintitf, the Couit would have interfered. Ibid. 30 Iii«.iifliri4'iit |»o««M'*i<«ioii -l-:vi«li>iir«>. * The plaintiff in trespass claimed under a registered deed from K., who had been in possession of the land, but was not actually so at the time of giving the deed, and it was not shewn bow he got possession, or how long he held 12(MI 'inKSl'ASS. it ; tilt iami iiad Inn: unrtiict d loi Hcvcriil ytur.s lit and tlic |iliuiititV had lu vir oi-cuiiiid it, or laki ii pos sioi). //.o/. 'liiat li'.' iiad lu iiiur tin- actual or iiii..miiu l><)sHi8Mi'ii. aiid iiiultl not nuuntaiu tlu- uctiuu. Cml V. .\tl.iiisnn, :; .1/7. i.'.o. :tl 4 oloi of liilr I'ohsi sojoii :iu:iiii«.t \\ s on;: (|«h r. Ill trrsjiiss ijiiiii' cldiisniii ncfiit, it api'taiMl tliiit iaiid wliicli was i)rinci|tall> \vil(lcnif>>, had h((ii ^'rai to a I'tisoii \\]n> It siiU d out t>f thf coiintn : tl!;it oii^ oi- his af^nit liad a charfj;!' of tho hiiid to pit vt iit ticspii on if and also had a power of attoni<_v authorisiii',' hii M 11 it, and that. alt» r tin dcatiiofth. ^lanti . , T. hjlu ll nt the anthority rontiiMud, convtud tin hiiui to plaintitl wiio had the lint s t)f it run ttiit 1a a siirvtvor • xtToiscil acts ttf owntrsliij) ovt r thf laiitl h, cut ti)nl'«r. //\ ii\> dfcti, \\v went in undt i colour ol t and had siit'ticii nf [lossrssion to cntitlf hiiii to roct aj^ainst a nurt wnm^ tUar who tntt nd on tin.' luiul cut timia-r uUir llit jdaintili took poi-st .-siiui aini rai tia- lints. Xii'init \. /'' '/,v, c. .1//. :{!<1. >" hnuiiati At^tions. II- 1*1 I i.\( I. I'l i:\niNo- KmI'I mi:. I |{i;^lii ol soil Kit 4-1' I'.iisriliciil. An fiisi nit nt or priviicff ;.;runti'd 1>\ dtcd, to tun watt r of i\ rivi r lor thf um id' inilJH, atu' to huild uiill- (iotH jMit toiivtv til*' ri^lit of stul, and cnnnot \n '^\\< kvidmc. iindfr tic f;tn( ral isiiif in tivspass. H'.f//' Milhk, /, l..t^t. v. ls:n. •i — I'ciKi' lie- -iitkfaK ralilr t'liti-riiiu. lU! lulaiit ihnw ilowi; u ftncf ami t ntirttl on la tht piuintilfh puBHtshioii * hiiuiint; it lu ht a lii^liwa} in coiibtt'Utnt-f ttt thf tdiffc lifin}4 thrown liowii.tlu >. liad i»t t II ^'rai:tt'l lir (•(iiiiiiry ; tli;it I'lv 1. md lo |>r( vriit trtspaBSCs orncy iuitliorisin^ iiim fu tlu ■;niiitc.'. 'I'. Iii'liiviiif; niVrUtl tin' liliul to til' nil out Ity a -iiiviynr aiiil •,.r thf laiitl li.. cuttm-' pliiintitV aiM"'i"f'^ "^^ ^'^'^ in uiidi 1 colour of tith, n cutitlf liiui to rtcov.r t-ntvrfd oil lla.' himl ant V |i(ih.»t-.->li'ii aiiu lai i'"t n •.\\)\. >«- lainitutii 11 .■! IM-lll. lilted ''\ d< rd. tp turn ti- ls, and {n liiiild iiiill-iiiUiiN 1, and coiuiot 1h ^iviii 111 1,. in tn-i>a.-s. Il'-i/''!" \' if, and, .nil ltd ou laiui m „^ ,t n, l.i- a lugliway. :uul .. tliroNMl do\MI,tlUiKfc"'l aintitrn ticdd. UM.W a ludd uiul.r lawful ftna' liiit u-ln«tKH .'f tin I'^'ii^'^ had no jurisdiction to proceed a'j;iiiust the duftindaiit in trospaHs under the Act I Win. l\'. ca[i. '.), soc. ('». Cnhccll \. t 1(1(11/, T T irt.)i :t idiilissioii -liilliiiu^ o\ roiisoiil. An iidniirision h\ thi^ dufendi.i IIU tilt it , , 1,,, 1 1 :ii 1 ilV,. illlVl 11 IIK 1.1 il IL plaintiirs ox and ou^ht to pay hir it, will not support an action of trespiihs tor taking the ox, there being some evi- dence that tile o\ had i)een vorked hy the detendant. 1)\- const'iit of tile idaintitf"^ a^^ent. Hr'Hisiicld v, His'lmj,, / »'■/•, S'.l. I lliilr} to i'«>tiioir liiiil»4'i- \«T<»»«iSir> 4>vi«l(>iM-<-. A nmn cannot justify an entry on the land of another lor the purpose of taking his own property, unless he shews fliHi/ it was upon the land without any fault u- neglect on his part ; therefore in trespass (///rnv <•/. frvijit, aplea justi- fyhig the entry tor the puriiose of removing thedelcndaufs tiiiilier wliitdi hail lieeii carried theve by a oiidden rise of wattr in the river in whicii it was heing floated to market, is bad, "oecause it (l(»es not shew that the defendant was not in fault, liy endeavouring to jireveiit the timber from float- Ul'' o n the plaintitfs land. /.V-rrJ v. Siui'h, Ihr. I t •>. ^~ I'.iiti') <'oiiiiii:iii in a, third person, Iroin whoip, 1 agreed to purchase it. and under which agri ihk n hich ■ natl went into po88.' ssion. S,i Itobiuson / . Vaughton, s C. and 1' 2iJi.) P'trriit v. CoiinilisDn, lUi. 'IX^. in tr esjpii ss ./ .(/■(' ( 7. //•(■////, if defendant justifies the cntrv on the land iiiiiUr a third person he must shew that he entered by the ioiiiiikiikI and under the (iiitliorify oi such p'.n-son, not merely that he allowed the defendant to enter. K( III V SniiHoiir, Hit. '/'. 18(>l. ■J l-iili) on siioiiiHl o|»|»o«.4'«l to liH«' a*. iiioilijsiKOO— K(•llill^ ii|» iii<»iiiiiiK«'. In trespass, where the (;;;)stiun in dispute was the 1 nvi TRHSIWSS. m 1111 01 HOI (It'tVinlajit, am tiig other j^romitls ot dcftMiet'. rilii 1 a nj<>rt;,'ant.> ;j;ivi'n to liini hy tli" plaintitT hrUn-v tlic n]]t% trosj>a>s u|>nn the lot occupied by the plaiiititT. //W./.Tlia MS tlir dff.ndant had ctitiTcd on thf laii'l uihui n '^n^in oppiisfd tit his title as iiMi't<4a<,'rc, it alTin.lid no justifica tioii ol" ill- trespass. Mmitlinf v. .S'/s.siw, :i ICir '■)':]. ^ .loiiii ir<'«>|»siss«>r«» -^<'|»ai'al«' li-e«.|>:iH«.«'>. \\ her thric ai"<' a nuuiher ot" dt Im hints in ;in :irtioi of trespass, and plaintilT proves an aet of trespass a^aiiis Honie and n >t a;.ainst till, ami then iiois >m in |ir.Ht' iin other ai't at^aiiist others of defeiulants not implicated in tli lirst aet prov« d. h< must he taken to havr ahandeiit'd tli tirst aet and he confined to the liii«laiil«> .loiiii liability. In trespass a^juinsi s»'Veral drl'riidants. if tliey ,i;(i iiitoi the land with a I'oinninn piirpnse they are jointly lial)l th()ni;h tl( acts of trtspass are separate and are coiniuitt on dilT. ,. nt pal•t^' «tf thr land. I'riyn.-i'ni v. .s'.//"//, I ! 'liVA. -If two persons enter on land wroni^fully an •• cut fh»v.ii tn es Separately, hut mite in tukiue tiieiu a\\: by rene'Viiij; ohstrnclions in tin' rnatls. they artjoii." lialdc l.'i the taKiK-; ai:d carrying away, i^ia nul lor t! euttiu'.'. /\'(// \ ^»//(/(.'"r. ('» ill. II. II %«ii»al « oiiiiiiaiid l»> iiioi l;.'auii v. on r> I//, ill. I'i Joint lr«-*|»n*«. *^4|»iiial«- ibaiKloiim'"'- In a joint aet ..f tres])ass. if the plHuititV wishes t«) ' on a -parate act uf trespass by one of the -ItlV.tdai he nm-* al'and->n the joint tr<'spa»*s : he eantvit n^k jury to tmd in the nlternative, LnivUm v. h.''*W'S 5 •J''-- (II rilKSPASS. 1208 ati'l ill t'liidiiut's laml of ilitVlUM', Vi'lirl 1111 ntiO' l)rfoiv tin' iilli'j:;o(l plimititT. //Wii V. S'lri'H. I •!/'• ,11 laii'l wriin-rully ami t(. in taking tlu'in away, ,-oii.ls. th.'v aiv jointly ; away. i;;u nut forth? I I. l^VV IIOl III |M»«.«.«'«--««»"- cHnynif; uwiiy tnrs "'l a.'lVii.liint nmy jnstitv mil iMit. given by amort- J»;,,MiollllHM!ll* e ,,lHii»litV ^vishr.s toivlv ,v ,.iu' of the .Icft'.iilant.. .'.<^ : hv ciWvM n>*l< ♦J'" i:l Al>:iii4laiiiii<'iil .lii«lu<> l>is«-i'<'ti on. In an action against several defendants, the plaintiff proved acts of tres[)asn on the Otli Jnne, in which all the de- ftndanth wwv concerned, and another act of trespass on the lOth, in which only one of the defendants present on the ()th took part; the plaintiff then eloctid to proceed for tli<' first trespass proved. Held, That this was a matter in the discretion of the Judge : and that thejilaintiff hy giving ■ vidciice of the tres[)as8 on the 10th Juno, had not aban- doned the previous one proved. ArJtc v. Alcinndre, All. .Vi'i. (Sir 8. '^5). II- lliili-) lo i-<>liik<> «>:ittl<> \\ i'Oii;;liill) liikrii. In trespass for breaking and entering [daintift's harn, defendant justiliod on tlu' ground that his eattk; had been wrongfully taken by tho plaintiff, who locked thcni u[) in ills l)arn, and refused to give then. up. //(/'/, Sulficient, and that defendant had a right to take his cattle from the plaintiff, who was a wrong doer See Bhid es /■ II igg^. ' lur. \. S. i'isili, (IrdJi'iin V. (ire. It, ~) AH. ;5i50. !•> l>iM>4l ICr;;isli-> l<4>lalioii. In trespass iiii.iif <■!. I'r nit for cutting grass on the ;Ust onlv ; the defendant r.i.\. ■Inly, the plaintiff proved i <)SMession justified as o\vi;ei- of tlu- hind under a deed dated tiie 1") •Inly, but not ngi-tered till the l^tAugust. //c/i, o I//. 5.%n. Sii- lltdation 4. Ki IJI»I>I||||1 |«-|I4-|||« Mllllli I'l-OOl <'IOM'. In tnspass '/'/.nv «/. iiiiut describing the close by abuttals, the def.-ndaut itleaded lilirrnm tntfun iilmn. Nrld, I'liut und-r this plea, he was boutul to prove that that part of the close described hv abuttals on wdiich In i ntered, was iiis soil and fri'ehoM. un( 1 that, having latl li to p rovi title to a small niece of the land so described, on which [lart of tliclres[)ass was connnitted, the plaintiff was entitled to a ^'■rdict. ! )>sjin>f>(ii \. I /n iihistonc, (» AH. 1('1<. l-io-i 'I'llKSlWSS. I< 4 io%t II ui:iiii |>i>ssr^<«ioii I^IK -.lion tor jcry. i)( ft iiilaiit in tr«'S[iiis.s chiimd thi' /'!(•//.>• /// ijn,, miilfi- ;;r;int from the ('rowTi, t,!i'> jilni-'t'tT ;:;•1^■l■ n\-i, ),.»,,•.. ,,f'..,.f^. poss'.'ssion <>r the liiuil for twinty vcars [)ritir totlic^ra liy wliifli 111' .•liiiinnl that thr Cimwii was oiif .4' tlic iiosst sion. aii'l co-.iM not-^'nint witliuut oll'icc fomiii. Ilrll, Tli i\i\> rviihnci' ul" JH)riSc'Ssit»ll lUi^ijL Lo h.lVr lie u u ft to li jury. Siiiitl/ v. MonixDii, 1 pn^i. "iOO. 1^ 4 liiiri'li •'or|»i»i-:ii ion ^IriiilHTs' riuhis. Ill trrsnass for iiDariliiii; up the doors and window.- of parish cimrch. th.' di'ft'n.hints jiustili.'d as churcli wardtii and that tiny had (dosed th." tdiundi for ic|)air,-, hut tl eviilt'iu'o slifWi.l (liat th.y lial idoscd it to prt'Vcnt a derg man who (daini-'d tn lif rn'tor. from otliciatin^'. //''/-/, I tlif ahsnuf of jinxd" that th .re was any l'\L,';iIly anpoiiitc r»'Otor. That t' c (hfi'iuhiuts hail no rij^dit t^ ilismatit thtf cljurch as a'^ainst the (diurch corporation, cv -ii tlioiii^ tliey wrr' tht'instdw-^ lU' iiiImts of It. lurt,>r ^ir, ,,i' S d'^orif' j> ' hiirili V. i'lui-il.. ] iliii. (lii'.l. |f>- %.'liiii<««.ioii by pint I'laii Lot. Ill tr. spass the tlfchiration (h'seribed the prr'niisr.s ; ft)ur cl •• -; in tiic rity of St. John, fron tin.; on I'dlioi I!o an! Known and ilistin^^nishi'd om thf map or idan of t {•itv on lih- ill the Common Ch-ik's Oth.-o an lots Nos. 'il'l •2U'», '-".>•;. -i'.lT -i)h'a not tjuilty " so far as rfdatesto • Haiti «dos(' No. 'l\i') in thf doolaratioii m ;i* m. 1 "--I'l I t(» thf otli.r idos.'.s. payment of noii.'y into (' lurt. // That th. pitaadmittfd the ith'utity oftli" lot. aiid thtn' evidt-n"' of t!i" plm '1' • 1 in t'l ' I'onini m ('ltirk"s lIlHl was UiiMfcossary .S'. /'//*/- . That as tin- nninln'r of tlu' correHiMndfil with tlu- ii,riV\'L of tlu; lots, wliifh was in doncf, til-' nd'tTi-ncf to th<- [ilain was surplusaj^i-. 1/' V. Co I l(fi\ '2. Kfn WH'i. 'Hi r> .i|Mi-i.> «|4-Iit <*i«*l lo a\<»lil <'\(M-iilioii. In ti-fspass tor talin;^ hay. which plaintitT cLiini have hifii d(divi-ri'(i to him hv dcfcntlant in payment deht. //•■/'/, That i vidtnct was admissildf on tii> pai| \\\u di ftiidaiil, to show that tlu hay was ib livii'd to [ H!JJlJUiB.,^lMJl-HU.'JWZl.ftl.CUU'* WU*,mUiWHi >i . TllKSJ'ASH. l-2()5 i4-->li4>ii tor jci y, r-l \-|' (>\'iili'MI •' ""tc of i;irH prior to \\\v. .;r;int 1 WHS out of tile jiOSSeS- u'v fouuil. //(//, 'I'luit ) h,i\ !■ 1h' 11 IV ll t'> lln »n. l-s' i-iulils. loors iiii'l wiu.lttwo iifu 1,(1 as cliiiri-li wardens, •c-li I'ur I'cpiliis. but till" (I it to pri'Vi'iit a I'lerj^y- oin otViciatiuL; //''''. In H any l('}^ally appointed I no i-i^;!it i" ilismaiitlr M-[)oration, rVfii [hi^h f it. R'-rhn- rtr. at St. «():». icrib.'! I'"\v, tlu' mail 01- ';liui of tlu; i OW'uw as lots Nos. •i'.H, " s(^ fur us rt'lutostUli.' 1)11 in •ntiiufil — i" ' '^■'' moy into Court. /W-'- ^- ol'th-' lot. aud thm-fore (•n,rii):i (.'Icrk'riOtlicv tilt' nuinlnr of the lots e lots, which w.i;* i" ^'^■'• vvas surplusage. •^^''■'•'''' I rxrtiilioii. hich plaintilT duim 1 1" ffouilant in puyui.'Ut ot a a.hnissil.l.-mtli. partoi ty was lU-livrr-a L' I'l.'^i"- tifYin onlvr to pnvent its being seized on execution uf^ainst (lefeiulant, and that no [iropurty was intended to pass to the [)laintitlf. Kiimrh'.^ v. Admin:, T) AH. 115. *il I iii-<>;;is|4>ic4l ilcrii— (oiniiiaiMl r.iilry In trespass dehndant pleadcl freehold in I', hy whos<' coniand Ik entered. IlrhJ, Tliut an unre[;i,-.t(red deed of release frtei'ed de( d transfered no pro[>erty, and ''ives no riLiht to enter on hind. I'dlteraon v. T'lnnU'ii, .j .1//. .).') '^. 'i'i l>isl<-4'iil. it is a ;.^oiid pl( a lor a declaration in tresi)ass for taking j.;o()d8, that the goods were restrained for rent and not being replevied witliiii live diiys Were ai)praisec;, and a'ter such api)raiset|ieiit kejit ami detained in satisfaction of the rent; although tile defendant shouM have |n'oceeded to sell the goods, yet till' onii^sit'U to do so will not enable the owner to niaintuin trespass, the original taking being lawful. The opuiiu granted Iiy toe Aet ."iO Ci<'o. Ill -'p. "il, sec. 7, to i>ring trt'S[tass or ease, is to be understood according to the subject nnilter ol the grievance, and not the mere election of the Juirty. lu'iicrs v. llmitni, '1 Kiir'l'M). 'iW 'l'«>iisiiir> KiKlit lo 4>ro|»s. In tre>p;i,ss for taking hay and grain, it was [irov^ that til-' lainl on whieh the^" grew belonged to tlu plaintiff s fiillier. who, four Ncars before the trial, ave it up to tl le plaintitV on eoiulition that he should sui»port his hither r.nd family ; that the father continued to live on the land, but that the plaintitV took the nianagenu'nt of the farm and sowed the grain and cut the grass. Hi ill 4|iio lliftliuiiy. I an action of trespass 7/"//'' ciniHinn jroj lit, the defend- ant pleadeil tljat the lociDi in (fiio had l»een laid out and re- corded as a road tlueu rods wide. //•/oii the I'iict ot iIt [ilacc liriii- a |,ul,l lii^li\V!i\ . lii. \(>t of Ass.'inMy ic |iuriiiL; that no puhl liigiiway ^lioiihl \«- laid out of a 1. -^s width Mian tour md I'. 1 1, It V. Ihlll , . 1 A. /r :.l 1. '21 ^«|wii:il«- tr«'|i:i«.s4'. i:\iil«>iHi- \l>:iiidoiiiiii'a>>- aj:am>( tlir.' dtlriidants f.T takiii;^' iiw; \o^>, wliicii taking (u-cujiit d r>(\ rral succi's^iNtda . s, thfjilaii tiff proved a joint tn'S|ia>s against all tlii (l<:on(ian:s duiir tlif tirst two days, altt r wliicli oiir of the ddVndants wci away; a vt-rdict having; lucn loinnl aj^'aiiist the otln r tw Hi hi, riiat till trt'itasSfh wrn imt so .-ci'aratf und(li?;tiii as to r«'i|uirr the plaiutitTto aliandni tlir joint fr.siiassb^ lore j^ivin;^ rvidciUT of the trf^pass l)y fit. two d> !• luliiiit Atkin!''>ii V. Mr.lulrii, I .1//. ill:'.. Sn s.c. 12. l:i. (^tii«r< , Wlii'thrr will i-f tilt two doffiulaiits air clrar lijil)l< . tli<' cvult'in'u of til' tff.Npa^s 1». the tliri'". i.-i ^'I'oini fi>r u 111 w trial. //'/-/. '2*i l>«'iii:il ol iHli- -< laiiii .Iii-li(i<:iii4»ii l'\ idrinr Oil a \rrdic-t 111 trt spass for tlif plaiiitilV, claiiuiii;; tit liy ih'sjct'iit from hi- tatlitT, tlu- C'ourt refused a tiiw tri III »vrd lor oil tilt' 'ground tlrit S.. one of the d'-ftiid iiit-. th>' phiiiitilT's l-roili.r and thrr- fon- iustit'ual in - nl^rin a toiuint m foinmoji with tiif plaintitt": the dtf' ini' at trial l>fm«,' a d-uial of tin* fatlnr's title, and a t'laiai ai a .lilTcrrMt rii^ht. >V.fr,- v. /'./////./•, ;{ .1// KKi. Qh,h- . Wlii'thi-r it till- father's title had not \»<\\ ih thu v«'rdi<-i woulil have iift;u good against tiio otlitr Jrl rml?< ivjectt'd. //'"/. •21 Vw^vH^iitu Iii<«iilli4-i<-iil <-\ i4lrii«'<-. The iSiilion l)et\vi'iii A. iuid 15., -not nuKlo iipou the land, hut several Juih■^^ distant I'roni it, — in which A. gave ]>. licriniHsion to luiild ;i inill on the hind in dis[)ute. 15, liuilt till' mill more than twi'iit}' years hefore the action, hut did I ot I'urthcr nrou:ni/.e A."s ri^ht to the land. Ilchi, That this was not suHlcirnt evidence of A.'s possession, and that tlio justilication was not proved. White v. Smitli, i •i«— I'.XK'Hl Ol' |M>S««<>«.sioil^— I ll|■<>^ist<>|■(•4l diMMl |]vi- «|4>II4'4>. The acts of a near relative and personal representative ot a deceased person, done in hehalf ol" his minor children and iitirs npoii and in regard to land which was claimed l*y the deceased, hut under a detective title, will enure to the benetit of such heirs, to shew possession in them, as agai:'st a mere wronfj; doer, and the title deed, though not sutlioient to convey the land for want of due registry or hvery of seisin, nuiy be used to shew the extent of the (hum of possession. Hodden v. White, 2 Kerr G;M. 'i*,i ItoiiiKlsiry \<'<-4's«>sii'y 4'vi4l('ii<'<>. In trespass, the plaintilV claimed title under a grant and survi y nuide in is-i.); the defendant (daimed the same land under a prior grant to 1)., and conveyance from \\ to 1']., and from 11. to hintMlt, made in 1S;U, under wdiich he en- tered. Held, That though no couveyancj was shewn from !»., the original grantee, the defendant was not a mere wil- ful trespasser, lu.ii that the plaintill" could not recover on his possession alone, hut was bound to prove that the line coutendi-d for by hiin was the true boundary between his Ki'unt and thf grant to |)., and that the qu'^stion of bound- ary should have Ix en submitted to the jury. Ihddirin v. Ilrniihiu, :> Kerr Hi'.). :iO ||i;>|iu:i> rion;;liiiiu soil. In ires[)uss t'> hind, and ploughing up the soil, the de- fendant pleaded that there was a i>ublie highway over the file hind, by reason whereof hv entered. If eld, TIie* if it was a highway the ilefeiidant was not justill-d in plouLjb. iiiy; lip tlif Hoil. Cull V. MirniilKo III. IW-I. l-JOH TKKSl'ASS. :|| < :iftlr l><(t of l4>iu'«>«». In fr.s|.HHs l.y ciittlt , if the .l.lVndimt justify tlii' .iiti "f ;li. .'iltl.- tlirotif^h (Iffcct of fences, if imist be spfnai ph-adt'l. (irixirnhl V. I loll, i, Mirh. J'. \H:]\. S*i \(l»|»lioik of arts l*i-<>Hiiiii|itioii. \U \y tlicui, and at tlit ir risk; tlierefon' the Coinjiai is not lialde in trespass where rafts are fasti ned to tntsc thi' Hhon- of lantl within the limits of the Ilooni. unliss ti act was done hy the Company or their servants, er m\ tlit'ir knowledj.;.' and consent ; or, if done hy other [insoii — unless the (\)nipany has adopted the act. Tin iiui fact that the Company is entitled to hoomai,'" on all liiml)i eoniin^ with tlie hoom, does not raise any pit'sinii|iti()ii tli; till' luniher was fasten* d in a particular place hy the direction ; nor is tiio receipt of hoorna;4e an adopti.ui ot tl act of the owners of lumher in histenin;^ it to the laml of riparian proi)rietor. hmr ,. S>'ith Hm llxnn (' l'n>i. !(•!». :i:t l'oiii|»aii> (oiili-ucloi-^ iiiKln- l.isihiliiy. Tlu' defeiichints, a I'wiilway Company, htin^ autimii hy Act of Assembly to construct a line of railwav, ciitc; into a contract with A. ami H. for that purpose. The c tractors, in order to <^et ballast to com})lete tiie roiid, down a track across the plaintitrs lanHJ. leading to a ,i,'r;i pit, and used it for tli«^ trans[iortatii>n of {^'ravol to railway. //«/-/. Tiiat the l»y p«Tiiiisoion of aK«'*it < iiiiin;: liim'*^'- Defendant had a license from the Crown to cut inni u rear of land granted to the phiintiifs. Die iilain TlUCSl'ASS. \'H\i> ^ iiliint j'.iJ^til'y the fiitry I's, it must be siui'ially r. ih:vi. oil. m^; tlif South r.iiy ISooin , and 17 Vic nxy. .*)•-', liooms is UMilir tli" ' (.\)ini>any, it is under vvs, to hv fasti'iK d nil 1 tlH-n-fori' tlu' Coini'any art' t'iisti IK il 111 ti'ison if tiif I'.ooin, imlfss tiir • thrir srrvaiit>, or 'vitli [■ (iouc liv (tttu'i" [H r>'iu-, ,.,1 the ;irt. 'I'll'' ""■>■'■ . !)0(mmL;" on all ImnlM' ^c iUiv prtsumiitioii that iirtii'ular pliu-f l>y tluir na;^t' ail adopti.ta ol tli" nin}» it to tlu' himl of ;i ■'III I rill /»'"<"" <"•> ' II l.ial>ilii>- upaiiy, iMiuKautli.m/."! I 11 m' of railway, catfiv. I that imrposc TIk' con- [, foinplftf thv nniii, hul lunei. Ira.lingtoa-ravcl itic.n of ^'nivol t.) til.' i,a> w.iv nut HabK' tor ...pa^s l.avm- Im'oh com- a indug iiu-'i-ely ci'lhit.nil ,,1 witl. A. ana 15. to l"^i- III « .Hiiimi"'"'"'' tl.o Crown t.. c-iit hnal) •>• •laiutitrH. Tl..'i'!'""^"^'^ rt ii;,r,,nt and manager in cdiar^^c of tludr laud pointed out to tho delViuhuit a lino as the boundary of the phuntiff's land, and direc.tf'd liiui not to cut over it. The defendant cut lund)er uj) to this line, hdievin}^' it to Ije correct; but it was shewn by another survey that tiie Hne ho pointed out to the defendant wa-< incorrect, and that part of the lumber was cut u|).'ii the plalntilfs laud. Ifrhl, That tlu- defeudant iiiiviii^' •nlered on tiie plaintiffs laud and cut the timber bv p( rnjis>ion ol their arjent, wa^. not liaide in trespass for the euttinj^f, thou;.;ii the a^^ent had no authority to a^ree to a boundary aife(^tin^ the i)laiutill's' title to the laud. Venum Miniii;i Co. v. I'rrscott, Knxt. 7'. 1871. ;l'» Foi-4il»l<' <>iilry by 4»\vii4'i' l'oi^««('!>»Nion -I*lea--Jiiw- liii<':ilioii. Where the defendant was the owner, and entitled to the immediate possession of a dwellinj.,' house occupied by the i)laintilf"s wife, who detained it, after demand, by lefusinj^ to .i^ive it u^) and locking the doors against the defendants entry. //(•/(/, by a majority of the Court, (Allen, C. •!., Fisher and Wetmore, J. J., Weldon and Duff, .). .1., dissenting,) That the defendant was justified in torcin},' open the door so locked, —entering and taking iiossession of the house, and had therel)y obtained such a lawful possession of it, as proved the allegation in his plea of justification, viz. : " That he was in possession of the- dwelling house." Napirr v. I-'cr(jn.siiaiil ill roniinoii. QiK&rc, Whether any and what acts short of the (1( struction of the joint property, will enable one ti- iil» initio. WlnTi' a person liiivinK uiitliority by a Statiitr, ulmso such antliority by soiiu' jMiHitivf act contra vcniii;,' tli HRinc, bt' will \h' liable as a trcspaHMrr nl' initm. CiUii \ Wilson, II, r. 7!». I iKi'*'<'ni<'ii( % ioltifioii. \\ htTu |>^•^^ulla! jtr.i|M ii\ ot the (b'f.nilant i- in llir urtiiii poPHthsion (ij tbc jilaintitl uiidtr an af^nciiunt In twee tlu ru. tlu- latter may sustain trospasH at^aiii^t tlie forni- for takiii}^ it away. Ilolnns v. ('huh, li,r. s7. •I- Wtilinfiulioii JikIkiim-iii ^liriifl. riaujtill lM-nu;,lit all artii.n a«;aiiLsl the Sli.iilT I'e taking; bis t^oods on an • xeeiition a;4ainst A. and ifcovnf jiid^inent, but not to tbe lull extent of bis ehiini. the jiir baving found that part of tbc floods did not bcloim to tli plaintitT and wen- consecjuentlv liable to seizure uiidirth « xceiition. I'laintilf aft« rwards lnougbt trespass aj^aiii- the defendant who bail iinb innitied tbe Sb All. 274. 4> 'V|imi«>i' iiikI Hri-% mil ll<>lsitioii. Plaintift' waB Cbuuiiiaii of the I'.oard of A.^ricultuir superintend tbe erect ion of a I'ntvincial Mxhihiti'H plaint itT bad contracted to erect tbe building, but faiKii complete it in time, and tbe committee took possession it in ( rder to finish it. lb; left some boards on the •irciii which it was nec«'ssar\ Joreinove beforetbeopciiin^ oi thf 1 bibiiion. ! uo da\s Im lore that tune, one W. sold tin hoa; and tbev w. re taken awav W mforniei I the delVllil ^t til that he bad sold tbe boards, who said it was tbc i)c to do. Ilrhl, That the jury were justiticd in tuidini.' tl the relation of nnister am 1 servant existed iHtwccii •ommittee am I W an< 1 that tiie salt- of the hoaras wa^ act (ione bv \\ . in tbe course \. Jiotttfnld, .'» .1//. .").*»«». of his eiiiployuKut. 3/' TUESrASS. 1211 TV. |)A.M \(iK.S. I >i|»ori:il illi'Kiilioii lApcii^tC ol inquiry. In ti'-Hpasb tor takiii}^ ^'oixls iindi-r an cxtcutiou tin- ilt'claration alleged as bpeeial damage, loss of time and oxpciiilitiu'c ol" money in recovering the [JOSHession. //''A/, That under this alh'i^'ation, i)hiintiir could not recover the expense of an inijuiry held i)y the Sheritl' for his own information as to the right to the goods, and ijiia-rr, whether su.'di damage could he recovered in any case. Wilaoii v. r/tlU, Hi'r. :{2r). 'i— Jii 4lii'4M'tiiiu lot' siiisill <» t\*v |»l:iiiititl - V«>i*«lii-t f'oi' «l«>r<'ii4liiiil yvw li'isil. In trespass timirf cl./'nuif th'' main (|aestion was the dividing line hctwt'en the parties, on whieh the evidem-e was clearly in favour of the defendant : but lie had driven ;i few stak'S on plaintiff's land, for which the -fudge 'lirected a verdict for the smallest amount of (himages ; the jiuy. however, found for the defendant, and the Court refused a iifW trial. O' I-'lithcrtii v. I>rtili(r:it<> D;tiii- in tr.'-^pass against several defendants, the plaintiff ha 1 forbidden thorn from going on his land, and again, after actfi of trespass had been committed, notified them to de- sist, whereupon two of them did so. At the trial plaintiff' 'lected to proceed against all the defendants, and, under the -hidg.i's direction, only recovered for the trespass com- mitted before the two defendants left, amounting to $2. Ildd, That plaintitr was entitled to the certificate of the •bulge; that the trespass was "wilful and malicious.' ^IrMUhi'i V. /•;//'/// >'t 'iL, 1 Ifnn. r)0(). I- Daiiiuh«'«« •vlini lu'ld not «'\r<'s*ii%'«'. In trespass for cutting a not with which the plaintiff was fishing in a public navigable river, where the defend- int claimed an exclusive right to fish, as owner of the ad- joiaing land, the jury gave a verdict for .$40. Held, That file damages were not excessive, though the plaintiff stated IMAGE EVALUATION TEST TARGET (MT-3) Ai^ 1.0 I.I 1^128 |2.5 ■^ IM 12.2 1.25 1.4 ||||i/s ■< 6" ► <5> /> / 7 Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. USSO (716) 872-4503 '>>^ > I/. ^o W' \l\'l TRESPASS. 11 tin actual (lamiiRi to the ni't did not exceed $2. I!n»f v. Jlvlym, 1 ] 1,1 II. I Oil. -"i O'onfltrlInK «'%'idriir«>. Where in trespass there was conflicting evidence as to the (luantity antl vahie of trees taken from phiintift's land, the Court refused to disturh the finding of the jury, even though the damages appeared large. I'rrnrotf v. Wnltoii, in «l«>f«'ii«lHiiii ^o appor- fionin«>ni ol daiiinitr^. v. li«ir»j in an action for trespass on two distinct lots ef land, t vie of which the defendant proved title, the jury gave K t noict for the plaintitT without any apportiouiiii'iit of the damages, the Court ordered a new trial, unless the jdaintiiT consented to accept nominal damages. iyhite\. Smith, J MI. M'i. 7 MpliiiiiiK i-liiiiii. A party cannot split up his claim lor diimages, iiud proceed for a ])art of the trespass at one time, and part at one time, and part at another. Sfc Supra III. f). H -f$periHl duniaii:*' linliii for— !%<»li«*«' of ni'lion. See Action at Law \1. '> (/. Artioii HKUiHol Jiiotir** of fli«> P«*ii4-4> ^oiiiin:il dMin See New Trial 111. 18 . l*rot«'rtioii of Ju»ji4'<**» Ftil*>«* lin|ii'i«*oiimrnt 'Imo p<>nrr duiuiiKi'*** See Justice of IVacr III. 7. V. Aks.\ii,t \sh Falhk Imphikon.mknt. I Ai»«MUll and bulK'ry -F«*loii]r. Where, in an action for assault and hattery, thf plnin- tilT proves that the injury caused grievous bodily harm, iiii'l therefore amounted to a felony under I Kev. Stat. cap. 1 1''- TRESPASS. 12i:j 'ctl $*2. lii^xf V. ilaiii !*o ii|>p«r- «.— :\oiiiinsil dnm i-iitoninent T*»o sec, 15, the plaintiff will bo non-suted unless it appears tlmt proceedings have h'jon tak«'n aj^ainst the defendant for tliti criminal offence. (But see Wells /". Abrahama 7 L. II. g. B. 5ol.) Srknhl V. K'lif, 5 .1//. in. See Criminal Law. .4«»«iaulc OH I*iibll4- Ofn4'4>r 'DniiiiiKc** Ii«'l4l not exc<>«>**iv«s ■SV. New Trial HI. 18. tl-JuHii(*<> ol'tiK* P4'U4'«* -l*r4»re4*4linK*» .liiri««le in au action lor false imprisonintut if he commits a person for trial who is hroui^ht before him on a criminal charge, without takin«^ iin examination nspc cting the charge, as re«juired by law. Au examination taken beyond the jurisdiction of the Pro- vinoc is a nullity. V*/;// v. Ouen, Hev. 877. 3— <'oiniaiini4>Ml Pla4>4*— l>uiniiK4*M, 111 trespass for false imprisonment against .Justices of liic I'ciice who had exceeded tiieir power in committing the pliiintifT for contempt to an improper place of imprisonment, liut who othtTwise had received no greater punishment tlian he was lialde to by law, the .ludge offered to direct a v.'rdic't for nominal damages, which the plaintiff refused, ilaiiuiu^' substantial damages — whereupon the .ludge ordered a non-suit — the Court refused to set the non-suit aside. Armntronif v. Mr< 'itfi'irif, I FIih. .117. •S'tv also .Justice of P«'ace III. 7. Sinith v. SamimTs. 4~liiloruiiitioii-Oiiii**«*i4>ii 4>r 4'lii'i^iiiiii iiaiii4' Miib«»4>- 4U4>ni inM'riloM. An information was sworn befor»' the defendant, a •lustice of the Peace, of the commission of an alleged offence ^y Carrison (the Christian name being omitted); the defendant afterwards tilled in the plaintiff's Christian name, and iHBued a warrant against him, on which ho was arrest- ed. Ilclil. That the warrant was void, and the defendant liable in trespass. darrlAnn v. lldrdimj, 1 Puij. IGC. .V Daiuiitf4>M~E\4't>«i«ti%'e fliit* -liU|>Hi»oiiiuout. In trespass against .Justices of the Peace for false iui- prisoument, it appeared that the plaintiff, having commit- ! 1214 TllKSPASS. : tt'd an assault, was ronvictrd l>_v the tlcfcndaiils uiidtrtlif 1 llov Stat. cap. ITiW ncr. '27. and tin<'(l I'S. uiid. in doftiult (»f payment, sintt-nccd to a month's imprisoniiiiiit. iind tliat, liavinj.; n-Hisod to pay the tino, lie had Ixcn itnpri^onod for a montli. ihlntith«d to r»'(M)ver tiro jnnr, Aamw^r^ under 1 Hev. Stat. cjip. lii'd. sco. 11, tliouj^h the fine was j^'rc-atcr tlian the Justicos had powrr to impose hy tht* Act. Ihirit V. i:>n,mou>l, f) .1//. •Ml. A Publir olHrt'i' l<\4>4-iitioii- n«>li\ 4>i ). A commissiom r of highways, who. in tlic dis(diar;,'c of his duty, prtu'un s th<' eonvicti»)U of a person lor urj^ltctiii^' to perform statute lalu)r, does not malu- himself a trispasser hy deliverinj^ an txicution. issueil hy the .Iu>tiiH*, to a con- Htahle. and telhng him that if the d»'fendanf was arnrftiil he thouf^ht hi' wouhl [)ay. - the d»-fen(hint ht in>^ allerwards arrrstrd under the execution, which was (U'Irctivi'. Cnii V. (tiUriHnu, 2 .1//. 207. 7 I'lirty ^iiiiiK out |»r«»4'4>«>*> I>ii-«'fli4»ii» ^tiliiliii on lii«'«' Jii*«lltf4'afioii. A party who men ly sues out a [)roct'Hs and dt livers it to an otticer t<) e\eeuti'. is not liable as a trcijpasstr, though hr may ho liahlf to an action on the case if there are not pri\ious procet-dinj^H io wirraut the process. i' «»l lh«' l'4*ll«'«*— N4>r4>ll«l 4'\4'4'lltiOII. A Justice of the Peace is not liable to an acti«)ii ot tn^- pass for issuing a second execution for a balance due upou a judgment recovered under the Act 4 Wni. IV. cap. I'. before the first execution is returned — the matter beiuK 'I'l» UKSl'ASS. 1-215 loii<* Viili on within tilt' .luHtice's jiiriHilictioii. Sti iiiirt v. I!ii:rn, 2 .1//. •2.-. I. SiKjIi an oxociition may Itt* irn j^nihir. \nii is not void. [hid. 9 Df'OM-livr (*oii«i«-tioii hikI Uiirriiiil. Whort' a liiHticf of the I'fjitM' Ima jurisdicrtion to try ;» coiiipliiini, juid tliere has be(.'ii a rcfjjular information, l)ut tlio conviction and warrant it" comniitmont aro dtf»*ctiv«,', lie is not liable in tnspaHS for anytliinj^ doiu; prior to the conviction. SnLwU v. ()'ir> , | .1//. ;};M. 10 Jii«itifl«'iiiion~K4*ii«toiiial»l«' and |»robitbl«> rnii«>c. Application having; l»('<'n madf to tlu* defendant, a Tnstice of tlif Peace, for a warrant to snmin'tii jurv to determine oil til.' necessity i)f n private road tlironj^h the plaintitY's land, he iHsm-d a warrant under which a jnry was sum- iiiont'il, hii Win- iinalde to agree upon the amount ofdam- :i^'-s to the plain clff. Another ai)plieation was made, aud another warrant i8snere the defen(hint that the plaintitT 'luul molested the jury" in the distdiarj^e of their duty ; wli»n up«)n the defendant issueil a warrant a,l<> Uut) -KviTHtiOII. \ constable is lia'ile in ir j-jpa-*-», if he arioats a debtor iiuilor an e'xecution issieil oul of a lustice'H iJourk, (,1 Rev. ^tat., cip. l:)7) i)efore lie his used roasoiia'do dili.?e'ioe to lind goodH to levy on. Hunter v. Mi' lldinv liuprKoMin<>nt ill«'KHl* Procurinj^, (ioramanding, aiding or assisting in a tros- ^it (•" llilti IKKSFASS. pash maki w a prinon ii trtspaHsor ; nnd it alTords no (Icfem.- to one \vl)() luiH 1h'«'H inHtruincutftl in prociirinf^ or protnot- ing tlu' impriwonment of anotlu^r, under a warrant of i niagistratf, tliat In- waH inorcly the legal ailviscr of tln' luagistratt'. tlic inlpri^x)nment itHflf l>uing illr;4al. Thoiiij'- sou V. Iliitrh. *2 AVrr 126. 13 4'«n«»iabl«> /i«»*»iiiili niriiiiist mid ri>N«u«'. 'P.. II I'onstaMi'. iinving urn sti-d L.. tlu- latt» r paid tlif amount of till' fxecntion. less tin' (•(>nHtal)U'"s fees. T. <]( . nian. for assault and rescii' . that T. ha(i a rij.'ht to g" iiito ii.e oiljee to ewcutr the pri- eess ; that he was lUtitlcd to ills ffes, and to the custotly ^t the prisoner until they wt re paid ; and that the di.sturl»auc' having bet ii cause*! by Ls wrongful act, and not by anv improper act of T., iS. and I), were not justified in inter- fering and putting T. out of the huilding. .\ verdict having hi en found for S. and l>. a new trial was granted on the ground that it was against evidt i «'*•. 7'tr<)n magistrate, liniun v. Mourr 2 /'"// 407. Juwtir<> ol lh«> p«'iir<* .4rli<»ii lur IuImv iiii|>ri*»ouui<>iil~ K«*UMOiiabl«> and probal>l«' «'aiiM>. Sec Justice of peace, 111. l.i. Jiii»lii*«' ol p('a4*«> 4-oiniiiiliiUK «'l«*rk ol p«'a«'«> lu kmoI loi* not produriiiK ri'rord ol h«'m*»Ioiim. S't Justice of peace, III. H. W'etmore v. liiriinnj. i'VllNnoin«*r--Pi<*a .'%«'r«*ikMtr> a % t*i'ni<'Ut« .S><; Pleading II. 20. JuKliflrnllon-Flt'Mdinii:. See Pleading II. ID, lU. rilMsl'ASS. 1J17 ^f K |iiipii«»««"»*'"' R«>nM»niil>l<' and |»i'«»hiil>l4* «*tiii«»«>. .S«'«' Action lit liJiw \ I. VI. MlHrKM.AM.iil S. liiipoiiiidiiiK <'Htll4* fi«id«*ii4*«> -4»«'ii«'ral ls««ii«*. V. New Tnal HI. ;M. Auorii«>> 4iitlioril> l«» io«>ii4* 4'\«MiMioii. ,S'.>' Attornoy V. i. PIciuliiiK Jii««tifl«'aiioii 4 «»iiiiiii*»««ioii«>i'<« ol lliicliwayo i:\<*('*i*> in la>intf out road Plniniifl*«t «*a*»o. •SVf Evid.'iuM- III. 11). DiKK'iiK l'*"i* liiadnii«it- •«ibl«> (]%'ld<'nr«' und«>r (■«>n4>ral Iw«in4>. S'r Kvi(k*iic(' XIII. 1. Jii<>titi«'ati4»n— '<»|»4>4'ial %«<«iKiiui4*nt Dupliriiy. Sir Plead inj». LicriiM' D<' Iriinria. .s'»'<' I'ltadin^:; II. 17. -4'4>i-iili4'iii4* -^4'|»ai'ai4> iud d<*- t4'ndani— W|»«'4'ial n4»ii4>4' «»l 4l4>f4'nr4>. '^''' Costa. Tciiiiiit atf:iiii«»t I.iin4ll4>i-4l l^trait^r adiii4li4>ali4»n. >" Action lit Liiw \ III. ;i. Jiii'i»di«>ii4»ii .lM<»ii4-4' 4»l lli4> I*«'a4e lo try a«>ti4»n of ireM* pasH fo Ian4l. Set .fuBtiec of th«* lVa<'o. ixrf><'in4>nt fiM' ^tah' 4»l *tlrnn«l4*«l *ihip. Sir Shipping Law 7. Tiiii«>— iiiofrailon 4»t— linniHl«*rial. It is of no I'onHequemH' tlint tin* time when a tivspaes in alleged to liavo been committed is subseiiiieut to the ' "mnionct'mtnt of tho action, the allegation of time in tres- l':i'<8 being immaterial. Clarke v. Harding, I /*. cf B, 405. < lulm \,y Ar«*r<*llon. •SVf Accretion. it 121H I'lllAL. ij ; ' i| t! a 4'oiilra4'i4»r«> of Itiiilwiiy \o |»4i\« : i- to «>iit«>r on privtiir laud*!. Sff liiiilw.'iv. Jhuiilmui v. Khuj. .loiiil ir4**«|»»*»««rr I*»rti4'i|»ill«»ii in \r\. T<> inakr ii (ltf«'ii(lant liiil*!*' as a cotrispasscr it rnu8t apiK-ar, t-itlit r that tlie tri'^iiass was cor.iiiiittrd \)\ hin direct ion, «»r that it was (lone for liis hendit and that lie adoptrd tli«' Aft. Unlthr v. Mi( i>uri;ilf, 2 /'//ii4'i>'*» 4'oiii*l Voi«l liidtfiiK'iK -M«>i*>iiitf kiioiK on o\« 4>«*iiiioii. >■»•'• -lutl^mont V. 9 .hiri.mm V. o\«n wrouKlnl H«-f« l^»«*«'«»*»i%-«> diiinaK<'*«* S,r N.w Trial III. Sfi noil immiiill d«>iiii'^ii«' l<4'|ili4'>ilioii I^viii\i4iioii lor an a»<»aiilt >rt'rssil) lor pi*a>4'i- 14> |»r4»4-4>4>4l siiiiiiiiaril) . iSV/' .lustictMtl PtNK^e IV. *J(J. Ai'r4'«(i 4»ii 4*\4>4>iiiioii Oil in4l|fiii4'iii *«4'i a»i4l4'. Sf. I',stt)jt|i( I IV. 1. 'I'«>iid4*r 4>| ani4*ii4l*». S>i .liisiicc of P"a^'t' III. •». TKIAI.. Abaiid4»iiiii4>iii 4>ii Trial ol4'aii*>«*. Se<- i'rfBpass II. 12, 18, 'ir^. Caiiiiri oil trial, iin|H'iiiii vjilidity of salf . on }j;r<)iiii i tli:it execution irt uTfj^ular. /'", v. W^itson, (J .(//. 17">. ▼ iiriaii4-4* b4>tM4>«*n |udKiii4>iii and r4M'itai in ^>lH-ritt'o d4*4>«l-4'anii4>i be Ink4'n Rdvaula|r<* »l al iri:il. .SVv Hh^jritrs lh>vd 6. VarlRii4-4* ill IIOI4' and d4'*»4>ri|itiuii in t >«uiii- niary arilon. Sef Variance. TenderliiK 4'vid4>iiv(> ui irini. See Kvidence XI. 0. ::|| "f ..U ' TUIAL. 1219 4>iil«» II ^uiiiiHO"'' ^•^•"■ |HH<'rf*lioii ill .Iii«Ik4* !•*• I» i'r«*4'|»iioii ot «>vi«l«>nr(> -lit* cnlliiiK \« i)ii<>«»«t«>*». N.v Kvi(lon((> VIII.— New Triiil 111. ;Jo. Krtmioii of «>vi. .s\v Kvidtnco VI n. 4iiirii«liiM'iil «»ii ti'i:il. Srr .Vnu'iidnu-nt I\ . I *i|MTial roiiiii** I'lii-fiiiiliiiH K<>4'ov«'ry iiii<1«>r roiii* moil 4-oMii(*i 4'oiiii«««*l 4»|»«>iiiiitf ra*«r. Wlicit' II (lochiration contaiiis spcciiil countH, with a lount for nioiu'V lunl anil rcccivcil. and the particulars also apply to the hitter count, the plaintitV may give evidence uiultr the count lor nion^y had and received, though his (ounsil (lid not claim to recover on that count in opening tilt; case. (! All. ol'). Ohi«-«liiitf*« in I'robnK' I'oiirt — lt«*iiiedy b} a|»|»«'ai lrl'^^lllal'il.v 4-aiiiiol l»r ol>i4M-i4'«l to on ii-iai. N" \)vv,\ 1. 40. IM«'ii4laiii «vi«tliiiiK i4» liiiiii |>laiiififl'«> i'i^lll t4» r4'rov4'r Iaii4t OI>j4>4Mi4»ii inii*>i l»4> iak4'ii at trial. >■'■ Kjectment III. 11. ltaiikrii|»i«-> I'raiHl in 4»l»taiiiiiiK 4-4'iiitl4at4' 4-aiin4»t Im> <*li4*\«ii «»ii trial. So- Kvid«nce IN. IH. loHs ol 4l4»4iiiii4>iit I*r4*liiiiiiiiiry |»r4»4>l' l4» aclniit o4'4-4)ii4l. nvy 4'\ i4l4>ii4>4>. «»iiltl4'i4'iif y 4»l. a 4|ii4»<>tioii l4»r .liidV4> to 4l4*i4*riniii4'. .St< Evidence Vil. 14. l>iMiiiH<«al ot M'rvaiil TakiiiK a4' a« i rr4'4l. 'S'V Master and Servant. •2 Tower of Judge on trial to direct verdict for plain- Uff, subject to be set aside and verdict to he entered for de- 'ndiint upon points reserved. This can only he affected iy the jmy linding a special verdict, when no consent is siiven. llmihes v. Suth>'rlanl4>M In replevin No power in JudK«> lo roui|»4>l plaliillH to ixply. iW- llephivin 12. ]'1'H) Till A 1,. JuMlrr of thf Priirr Tiitil l»> diltVrciit .liimi4<«>H. .S'< .IllHtii't' of the IN'JUT I\ . I. Wheilirr pinlnlifl hn*> mud<> out u *>ii(nri4>ni |M>!^«.<>ii,sioH to riiiiil4> liini lo tfo to tlir iiiry. ii qiioHiioii for Ju. St>' Tr»'sj)a»8 I. <». Ordrr lor irini of «'iiii«ii<'«» .4i«lliorii.> in JiidKi* lo iiiiik«'. .SV<' .hiil^t'S Order. I'iid«'t«>iid«>«l <*HiiM> Tli4>i'«* iiiiioi !»«> II |»|«>H on wliiili i*»*»ii4' 4-iiii !»«• Join«'d. Scf rnictisc VI. If). Kiiclil of |»liiiiilill lo liai«'4> liiidinv ol imy on nil i««««ii«><. .SV«' I'ractisf \1V. 17. ^ Whert' (Iffendant pleaded /our pleas two (if whicli \v< re an answer in law to plaintitl's aetion aud li. NvaB nonsuited, held on motion to set aside the non-stiit that he was not entitled to have lindiup ot juryon thcotljei issues, tliey bein^' immaterial. Martin v. Mutual bin Jus, Co., 3 />/. ir>7 •1- Fntiid .\o f'i'idt'ur*' uf— MtiiK'iui'ni 4»l uiln«>«t*> ini- f'oiilriidirird !Vol n«><'o*twiiry lo i«>iiV4> qu«'-Miion ol fraud lo Jury. 1 iinmnn v. Ihzon,2 /'. ,(■ li. i\)\. Mail«*fii4*ilou ol d«*l»i Wli«>ili4'r ii4»t«' or bill !«• tiik<'ii a«> di^«littrK*' ofdt'bi. u qu«'*»tioii lor Jury. Si'< iividence \II. 5 Entries in '>ooks of aecouut not conclusive a^iainsf party. Credihility of witnesses, a (piestiou for jury, Manner of giving testimony, jiulge trying cause con- cliidin;4 that verdict ngainst evidence, judjJiment will not he reversed on ali;,'ht grounds. Smith v. Andrews, 1 I'. >i Ii. r.4i. 4'ri'dll lo uhifHi iriv«*u -Knlri«'ot iu l»ook«t-<|u(>Mti«« l«'!: to Jury. »SV#' Evidence XII. Itutfinoiul v. Cnmtninij. •- l*oiui not ralM«>d at Irlnl. Where Counsel in moving to set aside a non-suit sought to raitii an objection not taken at the trial the court re- HIT • 'l'l> ritiAh. 1221 It .IllHtilM'H. Ill .liidK«> to iiiakc. a |>I«>H on uliii'k i«ii-y oil all i*>Hii«'«. jiuisinent will rioi V. Andreivs, 1 /'• •' , i»ook«*-Quc»»»i«" ftiflod to ••on>i>, ihm. MrViiiv. Ihniiil. •J /'//'/. :172. ) !K|M'«'iHl Do«'k4't !\i*«i l*rlii«»- D«*f«>nr«> PlMm'tloii of Jiidir«' UH to bonti Il«l4> holi«>rot d«'rrnd»nf ^Irik- liiK raiiM* oil M|»<>4*lal llork«*l. It niuHt, to a ^rt-at «'\t»'nt. ho in the (liHcrt'tion of tb»' liulj,'*' |irt'Hiiling at Nisi I'lins. wlhitlier dofcmlant hi ma fid <• iicliews he has a defence ; or whothor phMis an- pleade*! morely for dehiv, and without any (!Xpt'ctation of hein«^ iiblc to prove them, rhiintitf, tlierefore, takes the risk of ntcrinj,' his case on the special docket; and if, as the trial proceeds, tin- Jiid^^e is satisfied that defendant did really m\^\ homt jUc intend to defend it, he would he justi- licd in dischavKiuK the jury, and strikinj^ the cause otT th*- fpocial docket. LUiffil v. . I //<•//, 2 /*. .(' li. 2aiK I.MU and iiqiiit>. I'rincipks distinct, tlieroforo a Judge setting at nixi rnus rind hearing an action of ejectment has only to decide upon the legal rights of the parties and if the plaintiff iiakes out a legal tith> to the propurty he is entitled to re- ovor, even though the defendant may be entitled to relief a t'liuity. A Judge may refuse to allow Counsel to address the ury and urge them to give a verdict contrary to his lirection. /'<»<■ ol Jiid|{<' !>io objt'<*lioii rniMc^d by 4'oun««el— \o qu«>*»iloii «>uuKht to be l<>lt to iiiry. In trespass for assault on plaintiff, while in the act ot tiriving off a highway into defendant's land, the highway I'tiug blocked by snow, defendant's counsel asked the 'udge what direction he should give the jury, and on tin 'udge stating bow he would direct, no objection was take u to the proposed charge, nor was the Judge asked to loav any question to the jury, and the counsel did not addres tilt' jury : IleUl, that defendant's counsel was preehuU I iroin afterwardrt objecting that certain (pie.>«l h) Jiidtf«>> II lb 111)1 ti groiitiii tor A iK'W trial tliat tin- .)ii(i^i' liu> «\|»rr.>>8i'(l liu opinion ti» tln! jury iipoii a (juostion of fitt. |ti'uviiic(l liu liiU witlidraw liic roiiriidiratiouof tlu* (|Ui'>ti(iii Iroiu iht'in I'Vfii tliou^li tlio oniiiion expressed was incorrect. .s»v Ntw Trial Ul. &2 JiidK*' iiiiikiiiK or <»iiiIiiIiik t** iiiiili«> ii ii'iiiiiik si<« lo Ili4* 4'liaru«*l«>i' ol i«'*kltiiioir}. iioi ii Kroiiiid lor im'u I till I. S*, Ni'W Trial II. IH. TUIII. Ill Ki:i'OKU. .SV. ri.a-iing iV. TKOVr.K. I T<'lllllll ill «'Ulilill4MI — Joiiii UU'llri'. Quirit, Wlirtlh'r any, and what acts ot a t« luiiit iin diu- iiiou or joint <)\vn»r of a chattid, other than a d.slimttioii '•! th»' projHrty will tnahh* liisco-tfimnt to maintain trover • li^ain.st iiini. H'tntjina v. ]\'liitf, liir. !>7. *i l.i««'ii'*«'«> 4'ro\«ii land %% i'4»iiK doi'i*. A pcrtJon having a license fr<»in the ( lown to rut tun I'or on Crown land, cannot maintain trover against ti wroii^ ''' ( ontra— White r. Spettigue l:J M. and W. 6()'J. Sn- fur- tlior — Judge bound to try issue on the record. WcIIh'. .Vhraham. 7 L. H., Q. B. .'>54.» Pt\r.ii. \'l'l:) conclusive cvidineo of ft'lony, l>ut |iro|Kr for tlio considerution of a jury, tlu' .{iieHtion of ftloiiy cuiinot )>«' left to tlicin in an action of trover,- it in the iluty of tlie .linl^^t' to dtti rniiiu' wlietlier then' in suUicirnt priinn fnrii- tviilcnce of felony to render a iroKfcution neceHsary. //'*'/. \ I.i4-|-Il^4>l> Tlllll»«*l* %% l-Olltfllll *ttll«>. I'liii'itiif having a lici-nse frtun tin- ow m i of hiiid to cur t ml)i r tlieieon, c»)ntracted with A. t«» manufacture tlie iiiulur anil raft it for tli. plaintilT. // ^ 4'«>liit'; 4»l |»r»|»i>rly. Tlic truHteen of an ahsconilin;,' d' '.or duly appointed iiiiler the Act *J»» (ieo. III. cap. \">, luay uiaintain trover ;'>r tlic value of j^ocxIh of tin dehtor wronefully converte«l i'\ the defentlant hi-fore i>roceedinjj;i« taken ui'ler tin- Act ; >uch rif^ht ol action l)ein^ tran.^^ferred from the dehtor to '\u' trusteeH liy operation of lh» Act. liililur v. Iiii4'«* %4'4sulPKrciir«>. A. delivered timher to \l. un by <'ri>\« II l*r4M-4>4'«liiiK!*> *•>**> <'d l*i'4»|»4'i-f> — '^libM'qut'Ml lukiiiK by uroiift do<'i'. i'iniber, cut by plaintitt* witiiout licence, was seized hy Hi otiicer for the Crown, and marked ; no proceediu{:;s We taken towardH condemnation ; the officer kept no l-osseasion of it, and was afterwards ordered by the (roveni- ■iient not to proceed to condemnation, but there was no "-'t of the Government by which tbe constructive posse.ssion 1 -J 24 TKOVKI:. '#|t was reve '.U'd in tlio pluiiititV. nor any actual posH.'SHion nt tlif {ilaintilV siihsiMjiunt to tin; sfiziirc'. Hrld, Tlmt tlic lilnintilV had no propi-rty in tlii' tinil)(.'r to inal'lf lii?ii to MiaintHin trover aj^ainst a jxrson wIjo took it wrotifrfulh. Mil»st'(|iU'nt tc ♦111- .M(i/.ur»' In tlir Crown. 'rnl>iii \. Uiitrhuixnii, :{ /v,t;- 'li\i\. !l l*i-«>%'ioiiM «>«>i'iiur4'- l*o«i<««>«>«»i(»ii 'l'iih>. Tiif possession o\ tiniher which inid hecii pirviousiy >eize(l \)\ the (,'rown for havin<^ l.een cut witJiout hcensc. i« a sutlicient title aj^ainst all i>' rnons «'Xi*ept the Crown, and the p«rson so in pobsession may inaiiitain trover agaiust a >lran;;ei- lor takinj^ it. ('Dinulu-A \. Jldtluiniii, '.\ Knr ^t^'l. lO— Cliiii'i-li 4'or|>or2ilioii-~'l'r«>«>«» «»4'v«'r4'4l. The propert}' in treeh {^aowuiR onuj^h-he ihintlieChurcli ( orporation, as the owners ot the inheritiuce ; and thi y may nniintain trover for them U wronf^fully severed, :i;.^iuu~t a tenant of the litctor, or any person acting und* r tin tenant's authority, livvtur itr. ot ILunittou v. 7'//' ^. 1 AU. •J7H. II — .44-4-4*pi4>4l order r4»r Iiinh4'r n4*8iv4'r)— l'«taK:4*. li. drew an order on defendant, a pi)nd keeiior. in taver of W. for live liundred tons of pine timher, which thi
    • «»iKHin<*nt hy «|4'4>«I l*rop4'rf) |»»«>*.iiiK. l)efendant had in his possession aH a p(»nd keeiur. timber helonginK to H., who, whiie ii was in defemhuit ^ |K)B8eBBion, made ageu&ral aBsiginneut by deed of his ino- perty to tlie plaintitT. llelil. That this was an assignnunt of the property in the timber, and not merely of a chose in action, ami that the plaintiff, after tendering the amount ol the plaintitT's lien on the timber, might maintain trovt-r agaioHt liim. -l. TROVER. 1225 -^ u'tuiil possosBion lit I. IlrU, That tlu- T to I'luiliU' liini w took it wron{:!fulh. I'rowii. 'iolini \. itl4>. 11(1 bi'on previously t witliout liconsf, is •cpt the Crown, ami lin trover against :i ithrinni, :? Kerr .V.)'l ^h'l.r isiiitlioChvuvli jiritAUce; and th«y iiilly si'Vi.'nil,agaiu4 u acting nntUr tin tptitU V. V'/.Ni-i. I .t/(. v4>ry-l>»iiK«'> ond keeper, in tavfr iihir, which thi- ih ■ IV tiinl)er ill aeooun'. rtv t*) the phiiut:*!. tU- to tlie timl)tr lu ofendant, or of any cucli acceptances, ttcceptance in an} nd that the action •,,hrr. I .1//. •'^l-'- ii.s a ponil keeper. was ill defonihint - by deed of his I'lo- , was an assignnunt merely of a chose in iiidering the aiuouut igbt mahitam trov.i 13 — liiiiKllord — Tciinnt - ISiiM-fittiiiKn - E^fciitory An agreement by a tenant of a shop that if the land- lord would make certain improvements, the tenant would put in gas fittings, and leave them there when the lease expired is executory only, and vests no property in the gas fittings in the landlord, unless they are left by the tenant in the sliop. If they are removed by the tenant before he leaves, the landlord cannot maintain trover for them. 1)11 nil v. (iiinrt, 2 AIL 218. ll-Tiikinfe liiiib<>r~ <'oiiv<>r«*ioii. Timber belonging to the plaintitT in this Province, being in the jjossession of the men who niamifactured it, and who claimed a lien on it for their wages, was sold by them to the defendant, and taken into Canada at his reipiest, where he caused it to be attached and sold for paym(»nt of the wages. Ih'hl, That the taking the timber into Canada was a conversion, and that the plaintiff was entitled to re- cover the value of it, without deducting what the defendant had paid the men. McMiiHhh v. liitchle, 2 .1//. 242. I't-ITIaiiiire -Kot iiicid<>iil to IhimI— 4'oiiv4>rMioii. Manure in heaps on land (not the prodace thereof) does not pass to the purchaser of the equity of redemption under a decree of sale, as an incident to the land ; and if he uses it, it is a conversion, for which the mortgagor may recover in trover without a demand. Thomson v. Wnlsh, 2 .1//. 8b9. 1« -.1laiiiir<*— l^niidlurd -Teiiaiil. Manure lying in heaps in a barn-yard, is a chattel which may be taken away by the out-going tenant, even after his tenancy has expired, and trover will lie for it, if held or taken away by the landlord. Foslutyv. linrncs, 1 flan. 450. I? -UoodM ut t<>iinnl— Reliiwul by MiKTCPdiiiK Ifiiaiit. Where goods belonging to the plaintiff were left on a farm of which ho had been Nnant, and the defendant who succeeded him as tenant, ref jsed to deliver them up with- out the consent of the landlord ; but there was no evidence that the landlord had any claim to the goods, or had given 78 1226 TROVER. 4Ji the defendant possession, or that be was holding tbum ax the servant of the landlord — the Court refused to set aHide a verdict for the plaintiff, on the ground that the refuHal did not amount to a conversion. line! v. McKlmy, i\ All. 212. m Though a refusal by a servant to give up pro- perty in his |>088e8sion, until he can obtain directions from his master, may not amount to a conversion ; he has no right to insist on the owner of the property obtaining the master's consent to the delivery. Ihiil. 19— Holding dorumpnlN lor bofh parlie«. A. executed a bill of sale to the plaintiff, and delivered it to the defendant, who agreed to hold it as the agent of both parties. Ilrld, That the defendant's refusal to deliver the bill of sale to the plaintiff, without the consent of A., WHS not a conversion, and that trover could not be main- tained. Iteverw Mythnill, 3 All. 354. «0— Netting np rifiht in third party— Drtcrtivo claim. Plaintiff having cut timber without license on Crown land in Canada, brought it into this Province, and put it in possession of the defendants to be rafted for him ; the defendants delivered it to M., who claimed it as having been cut on land licensed to him, but in fact his license had expired at the time the timber was cut. lldd, in trover for the timber, That the defendants could not set up a right either in M. or in the Canada Government —M. having no legal right to the timber, and the Government not having made any claim to it. Le lid yi.Fredernton liooin Company, 4 AU. 19S. )il— Aliefration of on«> couversion— Evidence. In trover for several articles, the plaintiff may give evi- dence of acts of conversion on several days, though there is but one count in the declaration alleging one conversion. Ultican v. Moffat, 4 AU. 298. )l)l— Mnflirlrncy ol pomiesslon. In trover for timber cut by the defendant on wilderness land, described in a registered deed from B. to the plaintiff, TROVEH. 1227 loldiug them as ised to set aside that the refusal V. McElrny, H I to give up pro- 1 directions from Bion ; he has no rty obtaining the ;ifT, and doUvered t as the agent of refusal to deUvir the consent of A., 3uUl not be maiu- >Hrrtivo claim. license on Crown ■ovince, and put it nfti'd for him ; tlie imed it as having fact his Ucenw it. Held, in trover not set up a right ,nt— M. having no iment not having ,. limm Cominw!^^ brldence. Intiff may give evi- lys, though there is |ng one conversiou. iftnt on wilderness B. to the plaintiff. it was proved that for more than twenty years plaintiff had occasionally exercised acta of ownership over the land, by cutting timber and wild grass upon it, and that five years before the action, he had made a survey of it and marked the exterior lines ; no grant of the land was proved, and no possession shewn in B. Held, That the plaintiff had suf- ficient possession to entitle him to recover against a p.rsou shewing no title. Coatca v. McAuley, 4 AIL 521. 93 Bill of Nnl«*— Condition -Demand— :¥oii-di*icio«iare ol lilic— <'onv<*r«lon. A. gave B. a bill of sale of a pair of oxen to secure a debt, with a condition that A. should keep possession of the oxen, but if he undertook to sell them, or allow them to be taken in execution the bill of sale was to be absolute. A. after- wards sold the nxon to the defendant, and 13. assigned his interest under the bill of :^>ilo to the plaintiff, who demanded the oxen of the defendant without informing him of the assignment of the bill of sale. Held, That the defendant's refusal to give up the oxen was no conversion as against the phiintiff. Sh(trp v. Lawreni-f, Mich. T. 1865. 44— Joint <^onv<>rNlon-- Evidence. Logs were wrongfully cut on the plaintiff's land by P., one of the defendants, who afterwards sold them to T. the other defendant ; plaintiff demanded the logs from T., who refused to give them up and denied the plaintiff's right to them. JleLi, That this was evidence of a joint conversion by the defendants at the time of the sale by P. to T. Umlricka v. Tttu^i, 2 Ilun 77. tlA-Tennnl In eoniinon -IVllxlitiir of property. Sawing up logs of which the defendant is a tenant in common, and mixing the deals with others so that they can- not be distinguished, is evidence of conversion by one ten- ant in common against the other. McKay v. Crocker, 6 Ml. 20. ^t-jfiiiinn property— Pinintifl^ii wronir. Plaintiff cut timber, part on land belonging to the *l«;fendant, and part on other land, and wrongfully mixed it with other timber belonging to the defendant, so that it 11 IWl 1228 TROVEH. could not be distiufjuislKjd from the defonilant's timlxT. Held, That as the mixing of the tiniluT was the wronf^ful act of the ])laintitT the (iefeiuhint liad a ri^ht to the whole of the timber, and hiH takinj^ it waa not conversion, 'itu-hn V. Muirhi'dil, it All -120. 97— AppropHiilion—ANMriil — Property. Plaintiff claimed timl)er under a letter written to liim by A., the maker of the timber, Htatinij; that part of a iiuan- tity of timber in the river ^which part was diHtin<^'iiishod l)y a i articular mark) was for the plaintiff, and r('(|iif8tin^ liim to send money and provisions to A. to enable him to diivo the timber; plaintiff st-nt the money and provisions to A., and furnished the marks of the timber to the def^.'nd!lnt^ (a company incorporated for the purpose of picking up timber in the river and rafting' it, when the marks were furnished), and afterwards obtained a portion of the timber from them. Ilrld, That the letter was an approi)riatioiioi the timber by A. to the plaintiff, and that his suhseiiiient acts were an assent to such appropriation, and vested the property in him. Marphertiou v. Frrdrricton lianin ('».,\ linn. 387. tiM- l«>iiwrr— Tiinb«>r ml lM>for<' li«>iiM«'. A license to cut and earry uway lumber from Crown land sjives the licensee no property in timber cut on the land before the license issued, thouf^h on the hind at that time, and the licensee cannot maintain trover for taking away the timber. Carmnn v. Mcl.rod, 2 linn. <)G- 49~Nh<>rifl lmprop«*r «»ulf>-Exo<*iilioii r«'«>^. A. issued an execution against B. under which a lew was made of li'e goods Imt no sale, the execution heinj,' withdrawn. A scond execution uuder another jiul^'ment was issued by A. against H., and the Sheriff after selling goods to satisfy that execution proceeded to sell otiier goods of B. to satisfy him for fees on the first execution, flrli, That such sale by the Sheriff was a wrongful conversion and that trover would lie. Miller v. Wehion, 2 Hnn. IBM. 30— Lumber cut wHlioiil license -LUu'iim' snbM'queni- \y obtained. Plaintiff cut timber on Crown land without license. ^r TH()VF<:|{. 122J> without license. Bofore the timber was taken away, tho defendant obtained a liconar from tlio Crown to cut tiinlnT on the same land, and afterwards took posHespion of tho timber and hauled it away. Held, that under tlje l*ev. Stat. cap. 1;13, sec. 6, the right to the tiinl»er vested in the defendant, [jfighton V. Uohm, 6 All 140. »l Prop<>rly in iiliiiiitifl'tic lim<*orroiiv<'r«>ioii— Shcrifl iiitiliOiiiK: iiii«lri'ii*iMiKiinicnl iiiidrr InHolvont Act Bill of Will*' nrl4>n«lanl*« iiiMtiryiiiK iiiid<>r JudK- iii4>iit »ii«l «*\«>«*iiii»ii |]vid<>ii<'<>. A. CI. l\. on July liHth 1875 |:;ave his hrotiier a l)ill of sale of certain horses. Tliis was done on the occasion of A. (r. H. and the plaintiff j^iving a new note for an indebt- edness of .\. (1. H. for which plaintiff was liabla. Formal delivery of the horses were made l)ut they remained in the possession of A. (1, IT. On August 21st 1875 the de- fendant, Vail, levied on the horses in A. G. H.'s stables. Ou August HOth 1875 A. (i. II. Assi^'ned under the Insol- vent Act, the plaintiff brought an action of trover against the Sheriff Vail and Uotnaill the .Judgment creditors, the defendants pleaded Ist not guilty, and 2nd that the horses were not the jdaintiff's property. They put in evidence the judgment and execution under which the levy was made and the assignment to the otlicial assignee under th Insolvent Act. There was nothing to shew that the a88ij.,iiee mider the Insolvent Act had done anything to dispute the validity of the bill of saK', and the defendants did not claim under him. It was not sought to impugn the bill of sale under tlu' Statute of Hli/abeth. Held, that tiif kleudants couhl not justily under the assignment to the official assignee : and as the property at the time of the seisure, and even down to the trial was in tho plaintiff", the Sheritf was a wrong do-T, and tliat tho judgment and execution were properly a Imitted in evidence undrr lue plea^. Ifnnis ▼. I'nil, rri> . H. wrongfully sold logs the pro[>erty of (r. to li. who buwt'd them up into slalts. Held, that a joint action of troTer wouhi lie against holh U. and K. Gihson v. McKean •*»(/ iiandolph, 5J I'liij. 2!»i». 'Ht 1280 TIUSTS. I(! . ■ih Lnadlord iiii«l Tniniit Alcrvt'ineiii »•» to fixtMr(>«. Set Fixtures. Principnl iind .%k«'h(* .S <•*• DnmH|{«*!» Kill of r.\( liaiycr. >><• Bills tind Notts IV. iJ. Sellinn ^«>«-iiril> b«'lni-r linir. .S>r Bills jind Notes V. V.l. RMnkrii|>l«>) of piarly— l*rop«>rly %<d. .SV.' AsHiiini>sit I !1. ;{7. TKI •«Ti:i: .4.\|> 4 ll^Tl I inont l'nd«>rltikinK 4'oHditioii« l*iirl> -Con- Iran. The St. Andri'WK and (,)uel>ee Kailroaii ('(Mn|>iinv and rlass A. shareholders in the same Company, wcri* incor- porated hy Act of Assenihly (> Wni. IV. ea}). 'H, and by Act of Parliament, for the purposf of constnictin^' a rail- road fronj St. Andrews to I.ower Canada; hut heiu}.!; unai)li' to complete the road, they won- suhseijin ntly empowerod by Act II) Vic. cap. 70, to agree with any company author- ip(,d to accept the same, for a transfer of thr undt rtakinj,', and of all their lands, property, etc. I'nd' r v^)- ..uhority of this Act, an agreement was entered into 1/f ' ' the St. Andrews and (^ueh«c Hailway Company, the i'Wi^ \ fcharo- holders, and the defendants, the N. H. anil ( .uidda Hail- way and Land Company, (a company incorporated under the Joint Stock Companies' Act,) wh.rehy the former agreed to convey to the latter (called the Transfirer Com- pany,) the undertaking of the St. .\ndnws \ Quel)- e Hail- road Co., and of class A. sharehohh rs, and the control and management thereof, and all the land.^, rights and proper- ty therrof, subject to certain comlitions: iiiitrr iiha. that the Transferee Company should complete the railroad, and TRUSTS. 1231 » IlKlHrc*. ^ in as*>icii<>4v lion loi* iiioii4>/ riti «T. d Comi'iinv ami V, svcrt' incor- i\\). 'U. and by stnu'tiii^^ ii niil- tut lu-in.^; unulili- itly t'lnpoworod mipiuiy iiulhor- 1,. uiidt rtakin^', .J- rh. .U'i.ovity ,. .,■■ • tlieSt. ,. ».,u> \ s-imro- d ( nwddH Hail- •rporat.'d under rhy the former riiinsferee Coni- ,V Queh'O liiiil- 1 the (MMitrol and ;hts and proper- {intfi- <(/««,) tliat ■ he railroad, and flhould furthwith discharge the liabilities of the St. An- drews and Quebec Railroad Company and class A. share- holders, specified in the schedule to the a«;reement. Among the liabilities specitied in the schedule, was the following — •* Liability, (if any) to the contractors in New Brunswick." The Aet declared that when the agreement of transfer was executed, all the undertaking of the St. Andrews \- (Quebec Hailroad Company and the control and management there- of, and all their lands, property, rights and effects, and all their duties, obligations and liabilities, should he absolute- ly vested in. and im[)08t'd on the Transferee Company. The plaint in had contracted with the St. Andrews it Que- bec llaihctad Company to build a portion of their road, and before the agreement of transfer was executed, had com- menced a suit against tlu'm, vhich was pending at that time, and a decree was subsequently made in favor of the plaintiff. After the trai. fer, the St. Stephen's Bank ad- vanced money to the Transferee Company, and obtained judf^nient against them, and issued execution, under which tilt lauiU transferred to them by the agreement, were levied on. ///•///, That the plaintiff not being a party to the agree- ment, no trust in his favor for the amount due him, was created thereby, and that he had no lien on the lands which verited in the Transferee Company under the agreement ; imt that the Transferee Company merely stood in the place of the St. Andrews it Queixe liailroad Company and under- took the diseharge of their indebtt'dness out ot the general funds of the Company. Ilrhl also. That the word " con- tiition" in the agreement was to be read as a term of the •ontract, and not as a contingency, which, in case of failure ef jjerforraance, would work a forfeiture of the estate grant- ed to the Transferee Company. lUoohiieU v. The X. H. k ('(niiul.41 lutiluay (Dili L>ind i^ompmifi, Triii. T. 1871. Rt'HUlliiiK iruHl AI»*ioliil<' «l«>4>«l iiit<>ii«l4>d to 4»|»4>rul4' »• iii«»rlKUK«'— AKr4*«'iii<*iit to i-4M>4»V4>ry .4k<'"*'>* VV. held a certain property of S., under an absolute deed, but which was really given as security. S. being desirous of having the property purchased by a friend, who would convey to him as soon as he was able to pay the 1232 TUUSTEES. Buiount t)f the purcliasi' moiu'v, Hpokc to M., an intimate fritnd. rt(iuo8tin;^' him to purdiasr, which the hitter did; but no agreement was made that ^^ Hliouhi purchase for S., or hold tht' property hy way of mortgage. Before W. consent* d to sell at the price agreed upon, he required and ohtaintd from S. security for tlie halanco of his claim against him, which S. afterwards paid, hut this formed no part of thf purchase money. Ilrld, That, in the absence of satisfactory cvidenci- of an agreement hy 'SI. to reconvey to S. in case he should aftrrwards he able to pay for it, he was not hound to reconvey, ivin although then- was strong ground lor susitceting that M., at the time of purclmsf, in- tended S. to ht'lii'V(! that he would do so. IIi Id, also, That ^1. could not ht' considered the agent of S. to purchase, in tin absence of an agreement to that eft'ect ; nor was there a resulting trust to S., no part of the purchase money hav- ing been paid In him. ^ Fisher, J., d'is»enUcnti .) Sudtci- l,iud V. Mr,h(,u, 3 Pini. 23<). D«'>iM'«> of rr*>idu«* of «>M(nl«> in triiHt -4'oiisli-iitiiuii ol uill. S>'r Will 5. D«>vi*i«> ill Tru<>»i. Sn W ill. liifaiiljoiiiiiiK ill <«iiii (|H4' lrii««(. S>r Infant. Titi^Ti:i:N. J Sie .■\h8conding J)ebtor. Trii*>i4>4'«> i«-iiiaiiiiiiK in otti«-«>. J[.Sr< liank. <'oiiv«>ynii«-(> lo irn«»i«'«««» l*rovi««ioii for ollu'i' Iru".!****"* I>«>in|i iioiniiial«"«l aiid L«'K»I <'*>("**'• .SV,' Deed 111. 3. <'onv4>ji«ii«'«* i>). A person iiaving the legal estate in land may, by fOD. veyance at law, pass such estate, tliough it was giv^n to him in trust. JJofv. (iilhnt, 1 .1//. r>2U. D«>%Im> lo two p<>r«»on»» in iruM -< on veyiui<«' by «"«- Kfleci.. ' ; See Will 12. UNIVERSITY OF NEW BKLJNSVV.CK Ii3i I'oiiMiiiclioii vl eyiua<'«' *>r one- guprrviAlon of proceedinKH of tru«toef». See Supreme Court in Equity. RelHlioii ol iruNiec niid reNiiii quo triint created. See Equity 2 f/. Rrvof'iillon ol niiihority. See Revocation. TKl'NT DKKD. See Deed. I l/rKi VIKKN. See Britisli North Anierica Act IHOT. I wi>i:ri:^i>i:i> taimi:. iVIiiM l»«> a |»loi» oil %vlii4'li i«»*»ii4' run li«>.ioiii4>d. See I'ractist' VI. 15. l!\Di:K%VltlTi:U. See Insurancf. .\oi<' |»H>abl4' ill. See Bills and Nott'8 I. 15. — See .Tudicial NoticL' -S. I :MVf:itMiTv or \t:\\ itui wkwkk. §«'uat4>- l*o\% ri'H ol. By the Act 22 Vic. cap. «>:l, 8«3C. 8, the Senate of the rnivorsity of New BrunHwick has ai)Holute power, subject to tilt' approval of the (lovernor in Council to remove any of tlif pniftsaorH. \c., without any formal proceeding in the niiturt' of II trial, anil wuch nuioval not lieing a judicial act, tile Suprenu- Court lias no power by certiorari to remove the procut'dings and cuiiuirc into it. I'!.r jnirtr Jihohs, .1//. 153. Thf powt-r of tlie Senate to remoye is not limited to ortkers appointed by them, but extends to othcers apiiointed uiKt.r thf Charter of Kinj^'s ColUgL', and who continur to act uiitit'i the corporation <'stftl)lislu'd i'ytheAct2'i Vic. cap. The general supervision of the atiairs ol the University is vested in tiie Lieutenant Governor of the Province as visitor, and an appeal lies to hlui from any Act of the Senate. «'l!' 1234 rSK AND OCCUPATION. Tho fact that, the Governor in Council apiJrovinj? ot an Act of the Senate, iheinj^ done hy the advice of tlio Kxccu- live Council,) does not incapacitate him as viHJtor from afterwards inverttlKating the matter, and Riving ji deciKJon tliereon founded on his Hole reMponHibiiity. In f^ivin^ a deoiHion hh viwitor the Lieutenant (fovernor acts in a judicial character. Tlu' ix)\ver to appoint a PreHideiit of the Tniversity is Tested hv the Act in the (iovernor in Council. /'»/'/, 1 M^€iiK or TK4l>f:. Si'i Custom and I'sage of Trade. " Contract. I :%4'KKTiri€\4Tf:D ATTOK^KV. .SVc Attorney. rsr. \^n o< cipitio^. OofpiKlunI niiirryiiiK uidou ol K'liiiiit l^iiibilily for rnii. .SV<' ilushand and Wife l.T). Sn' Landlord and TriKUit. Whnrf biiili uiilioiii iiiiiliorily- V«'*>s«>l lyiiiK* Sec Action on tlu' Case IV. ;{. I AKr4'<>iii«>iil l«» **4>ll K«>4-i«»«»ioii of. The piuintill recovered jud^jment in cjcctnitiit H^^s'.insi the diftndant, hut before isKuiU}^ a writ of poHscssion, agreed to hi 11 him the land, which a^^iceiiicnt the ditVnd- ant allerwards refused to compK le. //iiiiM* by Ut>4'«l. See New Trial 111. . 55. S— Pew— D«>r(Pii4*<>— Joint o4Tupatioii. Assumpsit lies for the use and occupation of a pew,aud it ib no defence under the general issue that others ocou- VAIUANCK. 1285 itenant (iovcrnor ut-l'iubility lor pit'd tlio p» w jointly with tlic defendant. VniHteeit of St. AniirewH Chntrli v. Feniunoii, 1 Iftin. 273. i -HoldiiiK l>y ixTiniMMloii .XiM'^MMlty oi 4>vid4'iirr ol. To uiaintuin un action for use and occupation, tbore imiHt \h' Homi> evidence of a holdinj^ by perniisHion of the laintitV: tiierefore, whert; there is no evichtnce of any con- tiact or nejj;otiatioii, and it appears that at an interview between the partieH ah.^nt the property, tlie defendant re- vised to make any arr)UJ}:;<'nu'nt, and chiitiicd the titU*, it was hehl tliat tlie action would not \\v. MrCullif v. H'urd, ;'> All. .'>()/). * The ri^ht to waive a tort, and bring an action (./ coiithKiu, applies only to actions Un- money IukI and re- ceived. Ihi'l. !«■:>» (vr4Ti '■'■ oi'.t I'he '17 lien. VIII. cap. 10, Statute of I'ses is in lorce n this I'rovince. Ihmd. llnnniiniton v. MrFudilvn, Brr. loS. INI KV. Sir Jiills and Notes V. 'M. MorttfiiK4> Broli<>i'. Where a mortpij^e on real estate was ;^iven by A. to P.. for the purpose of beinj.,' sold, and iifttrwards assigned to ('. who took it at a discount of U) pt-T cent., li., who acted merelv as broker in the transaction receivin;» one per cent, lli'lil, in a suit for foreclosure aj^ainst the purchaser of the ••'luity of redemption. That the transaction was usurious, iiml tbat even if defendant was only the colorable purchaser It would not atfe(!t the case. Jiirdi-n iind ntln'r.H v. Mc- H'diinmii, 1 Ifun. o71). ^«le tfiv«>ii tor ill<*Kiil iiil«'i«'«»l— :\ol r«'ro%«'n»l»l«* -l>«- londaiit «>iilitl«'«l to *>vt oil' %vliiil \va*« paid over H per cent. Si:c Bills and Notes \T. 18. Piters \. Horton. Vil.ltATOKN. See Landlord and Tenant VI. 4. VAKiA!V<:E. See Amendment — Bail — liond — Bills and Notes — Con Action — Criminal Law — Pleading — Record. viiU) VAIUANCK. ? I I ■ i - l*rool— AllriiHllon. In iin fiction on a written raeniomndum, wlinohy the defcTKliint, for " valiW' r(>ct'ivo(l, |>roiniH«>d to pay the plain tiff a certain Huni in current hank billH, " it is necessary not only to allef^e the actual couHideration, hut the proof rnuBt correHpond with the allugatiouB. Whitney v. Marku, 1 AVrr 17!>. SI Ei<>ciilioii Judvinriil— Mul«v A //. hi. was for L'I7 'is. \h\., and the judj^ment upon which it was founded for il«» lis. l»d. only. //. A varianct hi tween a promissory note proved, and that set out in the copy of a summary process served on the di'ftndant, canuot l»e taken advantage of on the trial, if the note correspond with the orij»inal.wliich is the record ateiuinuin v. Hnlsttnil, 'A Kirr 'SIj5. 4— Av<>rin«'iil - Frool. \Vhere the dtchiration averred that tht- plaintitT indorsed and delivered a certain order of A. to the dctfudants, and the evidt-nce was that the plaintitT indorsed and delivend the order to a tirm com)>os«'d of one of the di'teiuiimts and other individuals, lait in which the other tU fi'udaut had no interest, in |)art payment of a deht du" to such tirm. Ill III, A variaiuT. Uuitmi v. Til>hi'tt.'<, I .1//. HI. 4 >%or«|o* Tniii^itottiiioii ol— l>('M'i-i|>lioii. The declaration in an action for false representatini' in the sale of goods, dtscrihed the article " Imperial I'uU ytdlow (JlaH^ow boa|i,'" and set out the price und. r a videlicet ; the evidenei was that it was calied " Innierial Glasgow pale y. How soai)." Ilild, That the transposition of the words was immaterial, and that the exact price n.ed not ho stated. Mivjet v. Street, 1 .1//. 212. L] ^vW' '^ VAHIANCK. 1287 m, wliurohy tho to pay tilt' plain t Ih necessary not ut the proof ninst »<•!/ V. Markn, 1 ' jiidf^ment upon .niy. //'/ of on the trial, lich is the record phiiutitTindortitd dclt'ndants, and icd and delivered ic defendants and (>r ,h fi'n, and that the defendantH, in consideration kiuvt t)ie phiintitT wouhl forbear and give time to J. G. for payment, promised that the defendants would pay. Held, That this d«'claration was not supported by a guarantee of tlie defendants that J. G. should pay. Johnston v. I'nitiert Mich. I\ 185J2. t The declaration in an action on ajudKment of the ('ourt of Common I'leas, stated it to havf been rccover- nl for the nonp-rformance of certain promises and under- tnkings. IIi hi, mi mil tirl rrroril pleaded, That this declara- tion was not proved by a copy from the minutes of the Court of Common Pleas, which did not state the cause of action for wliich judgment was recovered. M'heeler v. a rant, Mich. T. 183 2. li-Jlllll i]\t*(*lllioil. In an action against bail, in which the judgment set out against the principal was for l*5t)G 17s. the defendant l>leaded, that no cu. hu. was duly sued out against the principal ; replication, — that a at. m. was sued out upon the said judgment (setting out a co. hu, for t'81 lOs. lOd.) as ai)pears by the record thereof, licjoimlcr, That there is not any record of the said writ of nt. sa. IlchI, after judi-Muent for the i)laintirt' on this issue, That the variance between the amount of the judgment and the execution, was no fjround for arresting the judgment. Sjh'hcc v. Stewart^ B>'r. 211). — JiidKiiinit— K4>4-it»l. In ejectment, claiming under a Sheritl's deed, the exe- cution under which the sale took place recited a judgment for 4)1105 Us., debt, and £5 lis., costs: the judgment was for 4.1105 lie., in the whole. Jleld, That the variance was only an irregularity, which could not be taken advan- tage of at the trial. IJoedem. WaUk v. Dulton, All. 387. Prool ol wordH— D<>lnmntloii. See Defamation 15. 1288 VENDOll AND PUUCHASKU. Irrrirulnriti' hi— PiirrhiiHor not Hflortfd by. rN riKhl to yood title. A p'.ircbaser of land han a ri^ht to a title freo from iu- cumhrances, and if the vendor is unable to give such a title, the purchaser may recover back his deposit. Srott v. Garnett, 2 AIL «24.. A notice to the vendor from the purchaser that the land sold does not answer the description, and that he will not complete the sale, is not a waiver of objections to the title. UtuL )l~AdniiNP»ioii ol receipt of inoiie>'. Qiuerc, Whether one who has conveyed land, and acknowledged in the deed the receipt of the purchase money, can recover a balance unpaid, on an admission by the pur- chaser that he owes it. McAllutcr v. Ihii/, 4 All. 37. S-Word **M>il"— irienninir Depend<»iit promi*ie. Plaintiff agreed to sell land to the defendant for Mi), and the defendant agreed to pav the money on a certain day, for the consideration above named. //»/sweeuy v. liodurd, 4 .4//. 400. 4— Party Nellinn ttitould prepare roiiveyaiice— Wife ftiiould l»<* a parly. It is the duty of the seller of land to prepare the con- yeyftnce, and if he has a wife who would have a right of dovv«r ill the land in case she survived him, she should bo a puriy to the coDveyaoce. Ihid. ft — Vendor and Vendee - Breach ol ayreemeat - DamaiieK. In an action against the vendee for breach of an agree- ^^ VENIRE. 1239 breach of an agree- ment to purcliase land, the plaintiff cannot recover the amount of the purchase money agreed to be paid for the laml : but only such damages as he has sustained by the breach of tlit) agreement. Piiuslei/ v, (iillespie, Mich. T. 1872. .4Kr<'«'i>>rnt Itcf'iiMHl to parchnMe. .SV'' Landlord and Tenant. I. 3 (/. A*> to recovery of depoHit on failure ot title. See Assumpsit Hi. 19, 24. VENIRE. ^■ce Error (Writ of) S—See Jury. Sheriff intere*ited. Where the Sheriff is interested, the jury process must be directed to the Coroners of the county, if more than one; and though it may be executed by one Coroner, the retam must be in the name of the whole of them. Xoble v. Temple ((■ PdUm V. Ti-mpU', 1 Ilan. 274. .\ venire directed to one of the Coroners of a county is bad, unless the others are interested. Vnd, Coroner - Interest. in an action for calls on stock, the coroner who sum- moned the jury was a stockholder, but, before receiving the itnirc, transferred Iw^ stock, which was not all paid up, to the president of the company. The Act of Incorporation declared that no sharfholder should be entitled to transfer bis stock, unless all calls were paid. In summoning the jury, the Coroner (piestioned them as to their views in regard to railways, and was guided in his selection by their answers. //./nire, when NUfHeient—Limit Bond. In an action by the r.ssignee of a limit bond to which n'meHtfactnm is pleaded the common venire to try the issue iH sufficient ; and the plaintiff need not have damage* aBsesLdd, but may take a verdict for nominal damages, and 1240 VIS MAJOR. iBBue execution for the amount of his dobt. MrElroi/ v. Oetty, 1 Han. 2(51. Motion for rcititr dr novo may be madr in the same manner as a motion for a new trial. .S><' Pclton v. XoJde, 1 Han. 271. VKIM E. .SV^ Practise II. VEKDK T. ]Vloti«»ii l«» iiiri'<>itNr v«'rdirl %%-|i4>ii vnnv ilis|>o«40vioii«« JiiliiH<>d. See Practice V. 8i>. Jiamior Jus. Co. v. McLeod. lnroiiip«>i<>iit for pliiiiitifl to fix r4> puny «>iilifl(Ml to nominal «laniaK<'««. .SVc Practice V. 52. StcviH v. WiUon. K4>pl«>vin — rindinti: of .Inry for part of prop<>rt), plain- tifl'«'ntitl<>d to lia«<* v«>r«tirt lor amount louud. Si'r l»e|)ii'vin 81). Ilounuujtou v, Ciirmivr. Defrndaui «>ntitl4>d to v«*rdi«-t on merits on onr i«»siio- TindinK ol Jnr> lor drrt^ndant in an i«i*iH<> \vlii(*h •*lionld liavo h<>i*n found lor plainiiti Vi'rdirl allourd to b<> ain4>nd«>d. Si'i' iU'pKvin .'». Baxter v. .foliimton. Practice— New Trial. Evidrnrr ol amount «»l orlKinni debt. Srr .Mrllhdiotf V. \l'iHinll, lii'r. 1)7. PoHtoa «»n. See Replevin 1. JudKni<>nt not ««iKii<'d, %<>rdi<-t rannot h«' plciidcd in bar bft%v<'<*n %ani«* partir<>»* See Pleading II. 41. VE3K4TIOI M FK- El roil ▼• l«'s»«»«*<» *" VOM :\TAKV «'0!VVKVAI%4'K. Sre Deed. " Election. VOTK. VOYApoNit of monry— llorMO riicr. See Action at Law L 8. Action for. See AsHunipsit — Shipping Law. An underwriter may waive the production of pre- liminary proof of interest in the assured by objecting to jMV tlie losH on a different {ground. Dimock v. Neir liriinx- nick Marinv AHfuirnno' d)., ',i Krir (i54. See Insurance 9. \Vniv4>r of |»ri»of of loot's. Srr Insurance 83 rivil4'K4' Witii4>*«*«. Sr,' Arrest 5. Wiiiv4'r 4»t T4»rt. .sVc Assumpsit III. L"). 'Id, 'M — Use and Occupation 4. WHiv4*r of '\4iii4*4> 4»f lli*tli4>iioiii' aii»i4>iiliu<>nt. .S'.v Bills and Not-s III. «J. 7, 8, 9. Miiiv4'r4>f I.it4'h4><» Wliiit ii4»t a waiver. sVe' Bills and Notes IV. 1*2. Wtiiv4>r of Irr4*)ruiarity in Attidavit to hold to bail. sv. Biiil 10. iU). 79 ■Hi: 1212 WAIVKII. H iilv«>r oi Bnllnblr <'npinH ««fiitiii|r no 4*tiii«v of iu-iioii. S<'f i'raotice IV. 1. 1% iiivri* of >ioli«'«> of K«'ii4l«'r. Sei' Bail Jlo. %% iiivrr c»f obJ«M>iioii l4» 4'oiiiiiii*ihioii ii«l«li-4>^*«4>«l lu four p«>r*>oii*». Ix'iiiK 4'\4'riil«Ml 4»iii> hy ilii'4>4>. See Kvidt'iH't' 1\. ><. M uiv4'r 4»f 4»l»j4Mii4»ii I4» 4'vi«l4>n4-4' 4»f in^liti«-iiii4Mi iiiMlcr I»t4*a 4»f ii4»l KiiilO- >.. Kvi.lencr XI. 'l\l ^ itiv4'i- 4»f i-i(;lil l4» «>4'li r4'iil 4'siiii4' iiii4i4'r \t ill liiiciisr. See Kxecutors, etc., II. ;i. \% aiv4>i' 4»f irr4'tfiiliii'il> in |>i'4>4-4'Vif. See Cognovit :{. \% :iiv4>r 4»f •»4>i-% i4-4' 4»fl «iuinni4>ii*». See Jwbtice of tin I'taoe IV. U» u, 1". %% iiiv4>r 4»f \«aiii 4»f 9>»iKn>tfni'4* 4»f 4l4'f4'ii4laui I4i ittli'i- to 4-4>llf4'«»«> ill4lKIII4'nl. See .liul^^liit 111 i I. .'). \%'ai%4>i' 4»f ii-i'4>Kniai'ily in •»4>i-« i4'4' of rulr <'4»iiii*t4'l a|>|»4'ariiiu. Sei- rruclKt \11. '1. %%'ai«4'r 4>f uiiiii 4>f' |»i'«'4'i|»4> %|»|»4>araii4*4'. ^V<' Iracticf \ 1. 12. \% aiv4*i* 4>f \%aiil 4»f atti4la%il 'l'a\ali«Mi of <'4>«»|h Ai- l4*ii4lan4-4'. Sit LublH [\ . OS. \%ai%4>r 4»f ii'r4-Kniarii> liilillinK 4l4>«*laraiion — l*i4*a4ltnK« Sr, I'laclice I. li, VII. :{ (. .liiror iak4'ii ill ^%«4'ariiiK aii4>th4'r in iii«> si4>a4i l>«'- f4'ii4laiil'«t 4MMin*>4'i a€l \o waiver ot irr4'Kiilarily. Set Jury II. 4 4>uu«*4'l niukinK 4l4'f4'ii4'4> t'auM> 4*all4>cl on li) •«ur|>rio<'. See NtW liial 11. :i7. warn WAUliANT OF ATTOKN'liiY. I'liH II^V ol iK'liOII. liCtlliOII UII4l4'i liiiil to "•I'"'" *** diMlai »»•"»> oil l»> •»M«I»»'*''' fllKiiiiiK iiif«*iioriiloi'>' liidtftiiviii— l>(>f«'iiilaiic%iiitorii<>)r ill 4-«»iit«>iii|>t -lK(*<>*'i>H*'<' *>f fan by plainiifl. See Practice Vll. 11. lrreKiilarit> iii ••itfiiiiiu iii«lKHi<>iii %%'liaf iioi a uaivri* of. .S*v Pnictice VII 1-2. Oel4*ii«laiil iiof filiiiK «l«'aiiii'r4'i- -l*laiiiii)l*« «|»liiiK 4-«»|»>, ii4> \vai%'<>r. Si'c I'raclice in I'j(iuity I. h>. Ocl«'ii«'«* iiol |»l4'a4l(|Hii'4'4l by A<-| l:t Viv. rap. '.I*i— ICiulil »t |>laiiiiifl to \vaiv4' plradiiitf. Srr Itupleviii 7. Waivn* of «l4'f«M'l in atil«la%-il. Sec Allidavit ".'. ir>. M< Intanli v. Burnett. U'aivi'i' by ii*»«' of |»i'0|»«>rty. See AHsiiinpHit III. 47 '". iyid<> bail bond «»ii a4'<-oiiiil of atHdavif not i»«'in)( lli<>d. Si'r Practice VI. ')7. Lririn v. W chhni. Uf-cxaniiniiiK uitiif^s on «'vid4'iir<* iin|kro|»4Miy ad- niitt«>d. Srr Kvidoiict- VIII. 'M . Smith v. (h-r.nr. Iii<»nranr4' JoiniiiK i****!!*' on |»l4>a %Vb<'n plaiiititi cannot obi'W a \%ai% «'■'. Srr Insiirancf 11. M. I'ilinK |»l<'a Onii^*>ioii lo do ^o in ii r«'valarity uhi<>ii may b«* \vaiv«*«l. Srr Practice Vll. 17. /><■/•.»<■ v. Wiln/. W4iti:iioi ««i:n\ii. i'iabilily for |cood*> d<'|»o«»itod, Kiv4>n np rontrary to iii«i MiriKlion*!. See Bailment ll. H AIt— ■'<'>> v*'. .SVf Practice V. SO. 1244 WARIIANT OF ATTOKNKV 1— ronNiderniloii N<'«-«'i*iil»lo MrfliiiK H«iid«'. If part of the coiihideration for n i)ond and warrant of attornoy is ^ood and Bcvcralde from tlio had ; tlie Court; will only destroy the etfect of the had j)art. ticcord v. Gr,rn, 1 .1//. 11. \Vhere in answer to an ai)plication to set aside a war- rant of attorney and judgment theron for fraud, the plain- tiff shewed a good consideration for part of the demnnd. though the remainder was not satisfactorily explained, hut no collusion appeared, the Court dismissed the api)lication without costs, the plaintiff consenting to reduce his deiruind to the sum proved. Utid. It is not a sutVicient ground for setting aside a warrant of attorney founded on a good consideration, that it was executed hy the iit 4»ld uarriiiii NrtliiiK a««i«l(>. A judgment signed under a Judge's order upon a war- rant'of attorney more than a year old, will not he set aside, unless it apj)ejirH that injustice has heen done, tliouyli the alTuiavit, on which the order was made, may not have bet n strictly sufticient ; particularly when the defendant's affidavit supplies the alleged defect. Smith v. L .%ii«»%«4>r. It is no answer to an apj>licati(>n by a creditor of the defendant to set aside a judgment on a hond and warrant of attorney given by him to the plaintiff, on the ground of fraud and want of consideration, for the plaintiff to state that the hond was given for the amount of a proinissorv note given by the defendant, of which the plaintiff was tlir bolder, without stating in what character, under what 'ir* curostances, or at what time he became the holder, mid wliat consideration be gave for it. liacon v. Uixir, 1 All. Ot>4. 4— C'oiifinuiuK Mcruriiy. The defendant owed the plaintiff about i'200, and n - WARRANT OF ATTORNEY. 1245 ' I i ([uiring further advances from time to time, applied to tlio plaintiff, who agreed to make them on receiving sulficient security; the defendant thereupon gave the plaintiff a bond and warrant of attorney for 1'1855, conditioned for payment of 1*927 Hs., on whicli judgment was entered up. HeU. That the judgment was valid as a continuing secnrity, and could bo enforced for the amount really duo on a final Hcttlement between the parties, and although, at some period of their dealings, the balance might have been in favor oi the defendant, the judgment was not thereby satisfied, if such WHS not the intention of the parties. //7, when plaintiff was indebted to him, and that the Bond, etc., was not given as a continuing security. The plaintitl" alleged it to be a continuing flocurity, and denied tiiat there had been any settlement. From December 18tj;> to December J18G8, the plaintiff and defendant had transactions to the extent of over $30,000. Held, per Weldon and Fisher, .1. J., That it not being clear that there had been any settlement, and there being iio- tliiiig in the defeasance to prevent it being a continuing Htcurity, the plaintitT was entitled to his judgment. KaUm ?. Ij'iirrencc, 2 J Ian. 85. « Creditor itikiiiK tor lartfi'i- •»iiiii tlinn dii«. A Bond and Warrant of Attorney, taken by a creditor for a larger sum than is due to him, are void as against 121(1 WAlUlAiNT OF CTTOliNEV. other creditors, under the Stat. 18 Eliz. ohji. :., and will, togt'tlur witli the judgnient tljorc.oii. hv net aside on tho np|>licatioii|()l another Jcrcditor, whose debt may he dt'ffat- id thtnhy.J />'/////s v. Im<}U'», Triu. i. IHiM. 7— JVItirliiiiK liiiltiilH 4>nites notfrender void a jud^nK nt »i<»nt'd on such confession. l.rvi V. MicnM. )\ All. ".••H. K -\4>4'«l IIOl UV tUUU'V ^Vltl ltl'4-4»Ullili4»ll r.4|llili4*!^. A warrant of attorney to confesn jiid^nieiit need not he under Mi\].J/f Ilntcltinson v. ./dhnHtini, I .1//. 1(1. A liond and warrant of attorney under Heal, were exe- cuted hy A., in tlie name of himself and H,. with ;t deftji- Banee ntatinp that tin warrant ol attonie\ was i^iven to Becure the jiJaintity for advances made and to he made to A. and !>.. in earryin^( on their sliiphuildin^ operations, nnd that tlie plaintifl' nii^dit sij^n judrliiK i«»Mii4> I4> b4' ii-i«'d -Doiibliul liiet* .SVc Practice XII. Drfoiiduiit ill «'n!^lod). See Practice VU. G. WAIUIANTV. 1217 T^ %ltorii<*y lukiiitf %«umiiit of attorii**). Ser Attornov \. 10. ^IIM|>«>n*liOII 4»l° I'4'III4'«1> . Src Judf^'iiunt. JlldKIHI'lll oil M«'(lill^ tl*ii(l4' -<'o*»to». 6Vr CostH \. //rnv/;/ v. I'rinre, W ill. HVl. lluiiiiiK:*"* r<%'iii< 4' ill i'4'4lii4-ii4»ii. Src h.'iniiif^'ts II. '1. Iinpli4>4l \%iii-niiily -Kr4>ii4li 4»f. Ser J)ee(i \ . H. Ili*«linill4>4> All*t\«4'|-«» t4» qil4><%llOllM. Sir Insurance ;ll>. 1 ^Illli4*i4'lll 4'Vi 4»f. In an action on the warranty of liorses a conversation just ht'tort! the delivery between the parties, when the lihiintitT said. " Von say these horses are sonnd," etc., and the defendant replied, *' Yes, they are ;" coupled with a >uhse(inent refusal of the defendant to take back the horses, "becaust- thev were as he warranted them," are sutticient tvidence from which the jurv mav infer t*>at a warrantv WHS <4iven at the time of the sale, no witness ai)pearinR to liave bei n present at the sale, Lihlnf v. \vxhif, 1 Keir 'MV2. 'i -ltr|»r«>«><«iitHtioii— 4lii4>«iti(>ii f4»r jury. Where at the time of a barfi;ain between the parties for thf sale of timber, the (piantity of which could not be then ascertained, the defendant stated that he " know the timber to be good, and would make it <];ood — that there had been an opportunity of examining it as it lay on the brow," shortly after which the plaintiff took the timber, which turned out mostly rotten and worthless, and the defendant had afterwards said that he had sold 101 tons for I' 100, which appeared to be the full price for good timber, fields That it was a question for the jury, whether the repre«»en- tation amounted to warranty, and that they might infer 1S48 WAinjANI'V that a Hulc t«)ok place at the time of siu'h representation Inine v. (hxluni, 1 Ken Ml. * WluTo at the time of making a verbal contract for the sale of 12r)() tons of pine timber, then in ehart^e of ('., a pond ki'e|ier. B., the vendor, repreHonted to A., the vendee, " that the timber wan of f^ood quality and unrom- mon lon^; lengtliH ;" upon which A., who wanted timber of that descripticm for shipment, waH induced to give inoro than the ordinary price ; and A. had also Been the timber afloat in the raft, and afterwards received an order from ]>. ujK)n C. to deliver A. twelve hundred and tifty tons mer- ♦^hantable white pine timber, averaging seventeen inches square, which C. accepted. //(•/(/, That it was a im)\HY question for the jury, whether under all the circumstances. the representation amounted to a warranty. 'I'lsihili \. Covmll. I Knr MM. •t K«*|»r«'M'iitiifioii— 4'oiilrii«'i l*lniit4>iitHtioii Tlllo to land Word *' |iiirrha««4'.'* An agreement hy whicli tlie (k;fen(hint a^'rcrd to stll to the phiintirt' — " all his right, title and intt-nst to the timber growing on a certain Mock of land, heing the same tract which he (defendant) purcluised from the crown " — does not amount to a repr<'8t!ntation that the defendant im3 a title to the land, the term " purchase" does not Ut- ctssarily imply a conveyance of land Imt may he under- stood to signify a bargain or agreement for it. lull v, I'litrkf, ;l Kirr 1H7. 7 Landlord and K'nant -Fitne***^ ol |ir(>niE*t4*«i ior pur- po9it<'M lo !><> n««<>d for 'f:%'in4*«>. Where there is no express warranty of litness of lireuiises for purposes desired, the representations of htness should be clear and direct, and evidence must be suthcit nt to leave to the jury of defendant's liabilitv on such repre- sentation — one of the plaintitTs ai)plied to one of the tU- fciuhints to hire two compartments in defendant's building tilt! latter referred the plaintitTs to Mr. llolden as the person who had the li;asing of the premises on behalf of the owners - -the plaintitfs saw him and told him what thi'V wanted und enquired of him, if it was capable of storing 200 tons of salt, to which enquiry he replied that Mr. Melish not long before that had had these compartments both tilled with salt — held not sutlicient evidence of warranty, there being no evidence that such statement was untrue. When reference is made to an agent for leasing the property, plaintiffs might reasonably assume that he was invested i 12:.() WATKK roi'HSK with jiiitliority to iinHWcr a n put to liiin, and tli. priiioipiil in ^jcnrial Ixiuiitl tlurtl»\. Tui/lnr v. lUfil, •_' /'. .f />■. :.s. I II «tii I'll II 1*4' u iirriiiiii4>*> N«r Insinuncc. *■ Ai'tioi) till till' Case I. i». 4>bliK:ifl<»ii |4» k4M>)> «»ii|i]»li 4»t usilri-. Tilt' ilcft'iidiints were in('.t>rp<)nitt'(l hy tin- Act '2 \Vm. IV, cap. '2»l. lor tlie juirpost' of supplying Saint .lolin with wat' r, and wcrt' riMjuirt'd to niakf in ((Vi-rv stroft throii<^h wliicii tlitir i)ip-s wore laid, vt'nts for Hiipplyin<; wattr whencvi'' fircrt hIiouM liappon in tho city. Tho \) Vic. cap. Oi, m:ii|y all iMiildings frontiiii: on Btrt-fts throuj;;li which pijies w»rt' laiil. sulijt'ct to an annual ratf lor the hcni-lit of tlif Com- pany, ami retiuirt'il tlifin durinj.; the continuum^' of the Act, to t'stahlish lirr pliiL;8 for supplyinj^ water wlionevtr fin-H .shtmld liappt-n, and to kfop the aaniu in j,'()od and BUthfic-nt serviccahk' onlt-r. I hi, I, That tht'dutiuH inipDSnl u{'on tli«' Comjmny couM not he carriod hoyond tli-^ fiiiriin- pt)it of the ttTiUH used hy the Li'f^islaturi' ; and thtrifoii- that thty wero not hound to keep a HU|)ply of water all tlir tinu', hy day and nitrlit. in thf pipes, so as to he inadeliabk* for rlie daniag*' sustaim il hy lirecatchiu}^' to a hiiihlinf,' own- ed 1/ one of tho rato-payers, which mij^ht have heeu savol had thf water heen iinmediatoly availahle for < xtiu- gui-hin}^' the lire. li/nLsU;- v. Suiut John Water ('oniimnii, 1 .1//. G3'.). %% %TK:ii 4;oi KMi:. Ser lOascment. Ditm- f'r4>rsion «»l I>«>t«iriirli4»ii of b) |>«t»»oii« iiol ol»- Mriirled— liUiiiK'fioii. Though a dam erectetl in a stream, which is capable of heing used as a highway for floating lumher, may be a nuisance as regards the puhlic, and the owner of the dam may consequently he liahle to a prosecution for erecting it> 7 WlIAKFAdK. lial no i)t'r8o» wlio lian not \wvi\ tlu'r««l)v ol)Htructetl in tlie ext-r- ( of liiH public ri)^lit to uhc the HtrtMini, in juHtiticd iii (iffltroying the dam. Thus, wlurc tlio plaintiff and defcn- (liintH owned niillH on the opposite sides of such a Htrejim, iind th'' I hiintirt' had erected n win^-dnni. extending from his mill 111 a (ha^onal direction to the centre of the stream, for tile [mrpose of increusiii},' the supply of water to his mill, iind the (h'fciuhints also inaintuined a (hiiii acrr)S!H tht- Htreiiiii to supply thi'ir mill : tht y were ruHtained hy injune- tion from destroying the pluintitlt s dam, thoUf^h they clrtimcd the rij^ht to do ho, heiiause it oUstructed them in tloiitiii;; lof^H down tlii- stream to their mill. Dtirin v. //'//• den, M. Uolls, ./iniimrif, iHili. iKrf*«>iii<>iil to «>iiliii'K«* u'lilcr <-4»iirsr l']vid<'ii4-4*. S,'i- Fividouce II. 21. WAV. ObHfriK'tioiiH. .SV.' Action at Law I.V. '.V.\. " Action on the ease IV. RiKlil ol fool uiiy not iii4'lii(l in I'itfht <»! riirriair^ See New Trial II. 51. MrIiohrrl.-< v. Mclirulr. " Insolvent Confined Dehtor. WIIAKI\ IpproiK'li to— Ob*«lrii4'liiitf. SrniiiK ^ hart. In order to rocover top wharfage, the plaintilT must avei and prove aniriiiatively that tlie wharf was " properlj planked or timbered on the Hiirface," and this is not provor by ovidonce that the wliarf was in good order. Ihid. S— ff'harf l><>loiv low u'ai«>r mark. PlaintilT and defendants, owners of lots which exteiultn side by side from St. Jolin street to low water mark, in tin harbor of St. John, by deed made a common passage wa' twelve feet wide along the length of each lot, on which (^aci was bound to build and keep in repair a wharf, and eacl conveying to the other tiie right of way over the wharf, th( pl.iintitrs right of wharfage on the north side of the stree being reserved. Afterwards the plaintiff obtained from tin Corporation of St. John tlie right to erect a wharf bevom low water mark, extending from the end of said passaj^i way for the public use, in tiie same manner as the par already built. Subsequently an Act was passed allowing the owners of wharves to collect top wharfage on good: landed on them. Ural, That defendants were entitled tf puy plaintilT top wharfage on goods landed l»y them on tb( wharf l)uilt by plaintilT bulow low watermark. Collins \. If, ill i( Fainn'atlur, 2 Ihtn. WO. lAabilil) l<» pay %%-harla||;«'> See Easement 8. %«ll.4KFI!\«-i:K. VrM«el<»M>«««*ion. >)i f I'ossi'swion 4. K<>«iraiiii ol' marriage. Sfe Will H. Dow«*r— KiKhl .4ftloii. Sfr Dower. *• Husband and Wife. WILL. 126a Wife of on<; prlwoiier oflorcd nw witneHN lor another. See Witness. Dower barred by adultery. See Divorce 2. WII.Di:i; 1 rauds — (i'arker J., dtssentientc.) Hamiltov v. Lox-e, '1 Knr 22n. i < oimii'iiction 'I'eriu ui'aMd'«oiii. Till- testator devised property to his wife for liff, anil ;tt her d ath to his grandson lUifiis ; he also gave property t" his son and daughters, deserihmg each of them hy their tiiiistiai and surnames. At the date of the will tlu- i<>tator had a legitimate grandson Uiuued Uufus living iu ii ioreign country, who, it appeared, In* had only seen once when a child, ahout six years hrfore making the will, and W118 never heard to speak of afterwards ; In Jalso had an illeg- itiomte grandson living with him. hrought up and educated I15i WILL. bv him. rt'co^'iiized as liis frrandson. and calltd Kufus. H. A testator, after lu (|Ueathiiig to his wife all his personal property, gave to iier ail the ri-nts and profits th;it shouM b© derived from the lands at (i. or elHewheic, that he should be possessed of at the time of his death. lie then gave to his tirotiier -L all the lands that should WUnv^ to him at his (hath, situated at (I. or elsewhere, an i in the evt-nt of surviving his brother J. he gave all the lauds tliat should b.dong to him to his nieces. //'/./, That the words of the devise gave .1. only an estatt' for life, and that no intention could be g.ithered from the will to extend it to aa estate in fee. /><>< v. a rem, 2 .1//. :J14. I Testator being seized in fee of tlu land after mention, d. (U'vised (before the .\et 1 Vic. cap. !>) as follows : "1 give and beepieath to my wife tlie income of all ray real estate during her life, and alter hor decea.se 1 give an(i becpieath to my son Benjamin F., my son -lauies G., and my son Isaac i\ ray two lots of lands ami the buildings thereon in Dock Street, to be eepially divided between them." Held, That the .ions only took life estates in the two lots after the death of the wife: lh>c v. Staut»u, 2 AU. 0:l2. WILL. 1255 iml culK'd lUifus. e was notbiiiR on tutor iutf-ndoil tho )(>!' V, Tinilor, 1 .1//. tho whole context 18," tiik'-n in their y to tho It'i^itiuiate lee to the i^xti-inaic )nrt nii'jlit look to lis were sensible if nd. That the words 3f the instructions shew which of the le intention \\a^ a wife all his per.-onal profits th;it should idsewhere, that he lis death, lie then t should helung to e where, and in the ,-e all the lands that ,/./, That the words r lil\-. and that no ill to extend it to an le of the land after 1 Vic. cap. to a^ wife the income of alter her decease 1 F,, my son James IS of lands ami the bf e.iually divided >„ly took life estates life: Poc V. Stautnii, ^-llrvi^o ill ti'ii*»t for %%-il'(p— €onditioiiM— KeniRiiidor. A testator after directing that so much of his estate as was necessary, should he sold for payment of his debts, devised all the residue of his estate to his executors, in trust to hold for the separate use and benefit of his wile during her life or widowhood, and pay to her the income thereof : and after her death or marria^'e, then to be divided anion;.; the testator's childr. n. If^'ld, That tbo purposes of the trust did not require the estate of the e.\ecutor8 to extend beyond the life of the widow ; that at her death, their estate terminated, and the testator's children took the estate in remainder. P'lr v. I>nscnll, i All. 170. 6 K*»liit4> lor lifV liiildr«'ii. A testator devised as follows: •' Also, I give to my son S. 11. (i. tho use of my farm ulescriljing it), also to bis lawful cbihlren, and in ease of bis death without cliildren, then to bo equally divided betwe-eii my live daughters 'muning them) and their heirs for ever." When the testator dieii, S. 11. (1. had no child born; but bis wife was then fnneiitr, and a son was born shortly afterwards. .S. 11. G., at bis death, left this sou and iour younger children surviving him. Held, I'bat S. IL G., by this iKvise, took an I'state for life, and at bis death, all bis children then living, an estate in fee. (innrlcy et nl. v. ('nllx'vt et 4>«>r K S., her heirs and assigns, by 125G WILL. way of iidviinct'inont, Hubject ae in the dood thereof is mentioned, all that farm or tract of land situate, etc, formerly purchased by ine from 13., with all I)uilding8, etc., to hold to her, my said daughter, her heirs and assij^ns, I do not make further mention of her, ray naid daughtir. in this my will." Held — Ist. That the testator's daughtir took no estate under the will by implication ; 'ind. That under the deed, she took the whole farm after the death of A. MilcH V. Coii (tmi FrdHcr, K.recninrH if:c. of John Ilardxmj, 1 Uau. 174. H— C^ondition — KcMfrnliil or inuri'inK<*— Wi«lo\v*s «'siut«' — K«'inaind(>rinnn. A testator devised all his real and personal estate to his wife during her liff of widowhood ; but in case slie married again, he willed that she should have only his personal property with his farm at (^., which she might sell at her discretion ; he then (1» vised to ctTtain of bin relatives the whole of his n-al property, of whatt;ver naturr and wherevt-r situated, exc(>pt the farm in Q. //'//. That this condition was not void as l)ein;,' in rfstraint ol matrimony, and that tin widow's estate in the Jjind tiicrt fore ceased on her marriage. hof dem. Ijirimistnue v. ( 'orrii', 3 Kerr 150. Ufld also. That ej< ctnu nt might be maintanied l'> tlie remaindermen against the person who married the widow without any demand ol possession. //»»♦/. The will contained a clause that any two oi tlu devisees in remainder (some of whom wert iuul( r au ' should have a right to purchase the land at a valuntion to be made by the executors. !!rl,l, That this did not pr - vent those devisees who were of age from disjMtsing ol their shares to a strang-tr, who might thereupon maintain ejectment against a i)erson wrongfully in posBessioii. //"'/ tt-Mlock .^«*unlHK ol word. A testator devised a farm to his son, and by m codicil to his will, directed tliat the horses, stock, and farming utensils on the farm should remain thereon for tli*; b«netit of the farm ; adding the words, ** which 1 do gi\t and w iii.., deed thereof is ind Bituate, etc., ill buildings, etc., nrs and aBsiRUs, ay rtiiid dauglitir. jstator's daughter ition ; "ind. That after the death of org itc. of -^"'"i -Widows ««».luU' nernonal estate to ; but in case she uld have only iiis , which she might to tt'rtuin of bin ei-ty. of whatever :! farm in Q. //''''• n" in restraint ol ill tht' land thert- h-iu. Ltviinixtniie V. !i.|Ueath '.vith fh'' said firm," IIrls l>r(|iiviilli<*»««<*«iii4>i|l iiiiluiiiciiis. Bank stocu and iiro;ni>sMry iMtfs w r- hi'.|iicatht'd to an t'KCcutor, wi'h a direction that lif Hlioahl pay thereout Mil the testator- just ihihts. Ih'twnii the time of oxecu- tiug the will and his death, the ti-stator reeoviied jud^'- iii..Mits v)n soni i.f t:ii notes. ,'/ A/, That .such Ju l^meit- (li i not na.'-'s to tln^ executor un^ler the l.e(jue.->t, Imu forme. i jiart of the r« siduary estat* lO !>(>% i*«r ill ti-ii«>t f'li:ir;i<> fayiiiriil of iil<>t»t«>. IlnJ. A t( .statoi' direeti"! that th» \u sid ui ot' hi^ and ] ler -onal estate >honld h. dividid ir.to nine » (|uai j'arts, and u;ivo one-ninth to his executor.-, in trust to api'ly the rents and income thereof, for the suii[>ort and eilucation of his irandson, M. W., till he came of a^t , and tht n to convey tile same to him ahsolutely : i)tit in case his grandson lied before lie came of a,L,'e. then such ninth part to he iiivideti amon^ the testator's .diildreii, share and share iiiike. i>v a codicil to his will, the testator declared that >ach devise in lru^t for his grandson, was lo be held suh- j. c-t to the iiaymeiit of a mortgage giw-n to the testator l>y his deceased son W. If. 15. (the father of M. l).i. and to the n;her ileht> dii. from the estate of W. II. I'.. After the i,;Ortj.;age wa>> {.dvi n to the testator. \\ . II l'> conveytHl the i;;nd on which it wa- s I'ln'ed to a trustee in trust to sell. ad, in ihe (irst [ilace, pay all his deht>^. and apply the 1 alance to the use ot his wih- and S(Mi. M. Ih, tlu- testa- t>r's fjrandson. died hefore comine; of a^e. ILId, That the t 'Stator's children, to whom the ninth was devised in case f the ileath of M. !!., took it subject to the [)ayment of the • le'iits of W. \{. H., and not mendy as au auxiliary fund in case the property conveyt'd hv \V. II. H., in trust for [)a\- lUcnt of his debts, should prow msuthcient. liotxtonl v. lii>!>,ron(, (i .1//. 458. no i-jr.s WILL. ! If :■;■ .'V ;s s II n<-\i<»4' V4'*»|4>«l 4'H|II|4' I.illlit.l|i4>ll 4»V4'|-. A tt'stiitor devised to P.. his sc-oiid wife, otn -li;ili of l)i- real and personal ostate. and dirceted that the children nl his second wil'o shoidd remain with her and enjov nil liis real and jtersonal < state till thev wen- ot n^v : ath r vhicli. the other half of lis estate slionM he e<|uallv divi- ded between the children of his lirst wife : that the chiidrt u <»f his first wife should assist his wife P.. nnd her ('liildrtii. in all the work necessary to he done on his real ;ind pt i sonal estate, till the ( hildren - tator's land, after I'.'s (djildren came of nu.^\ dependent en t!ie performance <>f tin condition : *2nd. Thiit the conditidu to assist r. auil her ciiildren was a condition Hiihsefpici;*. innl that hefore the estate of the children hy the thst wi:- eould he forfeited hy niuj-performanci' of this ccuiditieii. i' was necessary to slit w ji retpiest tor assistance hy I', aiii her chililren. /'"< -/. Mifiis v. I'mliimmi, li .1//, sit. (Jioerr, Whether the limitation (»ver, in case of iicu )•• r orinance of the condition, was not void for unct rtaint_\. I*i ll«>vi<»4* l«» l\%o |M'l>«>lls III IliiHl lo s«ll r4»il\«->>lll«e l»> 4III4'. W here the devise was to two persons in trii-t to st-.i. an*l only one convened to the tlefeudant, the other lel'isin^: to act, that conveyance passeF at least an tnidiviiled moiciy ■ 'f the estate, so a8 to justify the entry of the vendee. V"«''''', \\ hether the oral ilisclaimer of a 'evisid estiitr is sutlicient. Jlniuiltnii v. Lmr, 2 K' n li.i. i:t l!ofsii4' ii4»i-iKaK«> ill ii>4>. \'>\ the dexine of an vstate, which the testator harj pre- viously inort;^'a;.;ed in fe. , nothing* passes at law. Ihl'nr V. Amllt n H, '1 Kill (i(> I. ^^\VIIJ.. 1251) ItifriitioJl ' Rvi' iff. oiit -liiill "I iiattlio c'hiMrm • jui'l cnjnv iill •(' oi 'A^iv : attt V lu' rquiiUv ilivi- luit thf ciiiUrni 1,1 \nv cliiUi'fii. S Will i\\u\ l>«i- ', should \>v ill 1< l,lrt'U 1)1" liis lii'^' • i- chililvcu, tlh\ should !••' ^'^"' 1 licr c'liilth-fu ill ' (lonf on Ills I"' ;•' ir .•Initlrtu of llK ,!• in half thf ti^- iijro, il('l'»'niU'Ut oil 'luit tlh condition litiou huhsfiiufi.t. 1 hy the lirst wii" thiB condition, i' istanro hv 1'. iUM u ML N'.'- n .•1181- of nou-i'^r- |,i lor uncoi-liiintv. ,,.|| « oil* «>»•"•• li,. m tiu>t to M-. the otlioi ivtusiii>: J „„dividid inoi^iy |l thr Vt ndic. ,,f ji ..ii-it.v (li'iicr. Whor-' a will was coiit-nti^l by the liiur-at-lii\v, on th« ;^ronn(l (»r utKhi" iiitlucuc"' hy the dcvist'o with tho testator, l)iit no cviih'Ufo tlunvof was ^'ivcn, thf .rud;^'o should ;not j(!avp such a (jucstiou to the jury. /'"'■ rr dmi. L'-ri v. Sunmel, I II nt. •!*)'}, Ltttters writtt'U hy u testator to his relatives before inakinj^ his will, stating his intention to leavL> iiis property to them. iir<' not admissible in evidence to defeat a will dis- posing; ot his |iro|Mrty to another person ; thouf^h the will •s attacked nn the ground of the testator's incapacity, as beinri V. S'imiiil, 1 //-(//. 'lit't. 'l'r«*o|»:is*. I,if«' «'h|]i|4> in «>.:i%v mill. Sf, Trespass 1.17. I-) i^viih'iK-c rri'iilii'd 4-«»|>y ol %vill. Senilil'-, That a cta'titiel co[)y of a will cannot be givea '// V. •iititi i\\ evideno' uud'r the 1 U v. .S'.at. ca[). 1 l"i. ( //»i'iiloi-*« l.iiibilil) ii*«-Raiik Stock iiii»l>oo<>4l ol l*:i.viii«>iif ol I4'usi4'i4'*> iiii4i<>r Will not iillo\v«>«l iiKiiigi^i tiirii- 4'oiitiii;;4'iil liability to ralK. Src Winding-ui) .\ct. 17 l.<*;jai«'<' %4-tioii r4>i-taiii h'Kai'y. A legatee may maintain an action of d bt against an executor for a certain legacy given l)y his testator, [jirittj- sloitr V. / "/(• //. / ;. /. 11'} iw I>4>%'i ««iil»|4'(-t lo |»ayiii4>iit V4'ti4»ii. Where a devine of hind is made to U., subject to tiie iniyment of a sum of money to A., and li. acce[)ts the devise. ii li4'|»i'rH4>iiiiiiiv<> \r(iou. If a Itgacy is Ix limutlud to a inunit'il worn, m, who (lies licfort- any act done l>y husbatiil to rt'ilucf it into lujssossioii, In cnii »)iily maintain an action for it aH tin- r-'prtstntativc ol his wife, though lie nniy he hunelicially entitled t.) it. (\J!;,i.lil«> of llaiik ^l4M-k l*ii) iiK'iil lu tmm iil«»i \riioii >><«' Assumii^it 111.11. l*l«-a«liiiK \<> :i\ miii'iit <»! i'4'4'4'i|»l of iiiom<>>. >>»•' rieadiu'j 1. 2"). *iO --l<4'f'ri'4-ii<'4> liKiiiii'v into r<>«*4>i|>|s. The jdaintin' and defendant were executor.s of A., wlio 1 e(|ueathed a le;4ai'y of l'r>(> to tlu; plaintitfs wife, eliari^id w^ton land devised hy the will to the defendant. On a hill liled for i)ayniiiit of this legacy, it appeared that the plaiii- tilf, as executor, had received assets lelon^^iu;^ to A. 's estate, which he had not accounted for, and that the defendant had in cuusKjUence l.een ohligeil to charge the real f .-t;ite devised to him, to raise laoney to pay the testator's del)t. At the hearing a reference was directed to intphre what moneys belonging to the estate liad been received h> tlu plaintili, undlmw he had applieal hytlu l;jaintilT from this order - //»'/(/, That the in.iuir,\ was pro- 1^ i ; and that if the plaintitY had caused the iiuul troni wiiicli the legacy was to be paid, to be used for the payuiciil of the testator's deht.^, the ilefendant should hold that fuii'l di.-^charged from th' legacy, or so much thereof as tli- phiintilT had viituallji received from t!ie as-^ets in hi> hand- J>, I'tber v. AtolreuH, 3 All. WS'.i. •it ('|-«-«lilO|- IS4>«ill«'s| |4> A4|i4»ll. A btques* by a debtov to his creditor of a legacy to tin uu.ount of the debt, payable out of the proceeds of certain [•roperty which renniins unsold, is no defence to an actioii l.\ the creditor for his deiU. Jiislmii v. liuhin^on, 1 //""• •J!'J» -I.4'na4> Bill I4> i«-4'o\4'i- IViHoiial 4'«.laH' I"-"'- ti4*i4'll4>. Qiuere, Whether, if in a fcuit to obtain i ayuient ol a Wllih. i-if;i iilor \«lioii l»"4iic.y, tilt' I. ill hIu'Ws tin: pi-rsonal estate iuHuriicient t'n* isaynu'iit of the dchts, it must not also hIicw that tho legacy was oharj^rd on the land, if ilie plaintilT seoks payment tlienfroiu. \l'>llhirr V. \\'n,„h, ] J[,ii>. 2M0. *i;t -l]\«>lon' I Vir. 4si|». 1>. A will made in I.S;{i">, before the new Wills Act. 1 Vic. i-ip. '.), was held snlVici(>ntly oxcciitod though the testator neither signed nor actually acknowledged the samo in pre- sence of the witnt'83 ; tho witness being called for the pur- pose of witnessing the testator's will and signed his name as a witness in the t"stator's presence; the circurastanct's amounting to an acknowledgt'uient. It was also h(dd that the '!{], (reo. 111. ridating to the execution of wills must be read subject to the [inperial statute :*.') (ieo. ll.ca[). •>. h »■ ih'iit. Mr\'i'u \\ Innicl,'! 'i I ~lnt4'iliii4>:iiioiiH. Wlhi'e interlineations a;)pear in a will which are not nc.trd, after long lapse of time a strong presumption may be raiseil that they wcvc madj before or att -r tho e-cecution of thf will aceording as tin; i)assessi.)a, title, .'^c. h ive run, and as the partiifS iutereste 1 have acted. Ihiil. '£'1 Allrxlaiioii ll:irk*>iii<>ii Idoiililiesitioii <»!' will. Where three persons witnessed tlui execution of a will, two of whom .signtMJ by their marks and w.-re unable to identify the will produced, but the third did so and also proved the marks of (hr .others. Ifchl, That this proof was sutUcieiu to entitle the will to pr.-bate. It is no objection to an attestation by a mavksnnm that his hand or pen wasguidtid by another. 77/ ■;;/ is llinil'in, in /•«• irlll i>f\ 1 lUuf. UM5. 'iU \«>(*«>s<«ii> <»!' te^lator ?M>iii|; ahh' l<» «•<><> \vitii<>«>*> MiKii .^l4'iitail 4:i|»aril) -Onus <»! |»i'oul. It is not HUtlicient that a testator be in the same room with the witnesses when they are subscribing their names to the will, but he must be both able to see them sign, and also m<;itally capable of understanding what is being done. iL»r.2 WIIJ.. To coiis.titut«' )i somid (llsjoBiiif; mind, a t.stator niu.st have I'ai'fii'ity to coniprt'liciid imd deal witli ^iihjccts re- <|iiiriiiv' tli(Mi;^lit, rctli'C'tioii. niciuorv and jiid^^miii*. Tlif proof (if tliodiif execution of u will tinincntly !it^s ou liini wl.ti Sets it ui', and it is more fatal to liiiii tiian his advvr- f»Y\ if 1m' IruvcK ditVu'ultifs • ntiirly without < xjilauatio; . /'' ' il'iu. ] ioltttc V. 'riiiirinn, 1 /'.a /.'. ;iSl». 'J* l*ii|M-r iiif4>ii«l4'«l its Mill I iifliiislud '<.fat«- \lio|iiii(; i4>*.iiiiiii'iii:ir3 «':i|i2iril> . Tlu' pri'Kunij'tion is alwax s a^;aint^t tin validity of will which hiura stdf t-vidt nt inarl\H of its luin;^ unliuidicd. and it l'« Imovfs those who assert its teHtanieiitary rliarai'tcr to hh( w di.>>tinttly that tlii' dect used intended tht i>a|'er in its lutunl condition to opt-rattt as his will. The testator wihhinj^ to make Iiis will, 1 ad a paper drawn up for that purpose hut did net compiete it. It t ndt'tl witli the word " fourthly " ajid it w.is elear that 1"j inten.ied to add soniethin<^ else. Afterwards, and >hort!y Ix'fort' his «4tath, lii-^ nephew who had written (he paper brouf^ht it to the testator wlm exeeuted it, the testator was vuywtak hut the t vidence was contradictory as to lii> testamentary capacity. //(/-/, i per Allen. < ". .1.. Wetmorc and J'iitV, .1. .1.. I- islar, •!., iliss.\ li.at a^ the will was e\i- cuttd iu an untiiiished staite and was iirotiLjht to him for execution without any previous re(pnst proceed ni^^ from him, his testan;entarv caiacitv nnist he most clearlv esta- blislietl, and that as this hali'iM-tioii I.if4' 4>*>itii4' I «>ti*>iii;: |>ro|M-i-i\ <'o\ 4'liiiiil r.«>l4t|i|»« I oil I. •'*>«.«•«* Keiiiiiiiidei i)i:hi <-aii>iiiK iiiiii) liiot iiil4*i-«*»l -l*aii) I4i suit. !l. devised as follows: " I <^ive to my dt ar wift, M. the iosfct^sicn, uj-e and occupation of my moiety of the lu UM' in wliirh I now reside, and al.'ro my moiety ot the upland nnirsli * * * and also all the i)late. linen. ^codB, cliHtttIs and eliVcts, together with all tiic household fniiiiturt ( 1 M Licit 1 sLall he possesBed at the time oi my dictat-fc ; afc alto tie rtnts and profits of all my othu per- 1 1 WIM,. •ifiiJ . -rir>. i'o|M>i-fy < o\ iiaiiKiri ' i)i:iii > -nil. tit ;ir wi tV, M. niuiitv of tlu- iiK'it'ty Ol'thr I' pliitt'. lilliU. tilt' lunisrliolil \v time of my niv otliii' !>er- >i>iml and ical estate wliatfioevcr, wlietlicr consistiuj.^ of liiiid. tenements, jjoods, chattels, dehts, moneys, or clioHes in aetv>n, including; all tlnit I may own in tho world at the finu'ol" my death for the siqiport and maintenance of ii-rself and such of my youn^'er children an sliall he livinf^ with licr and still nnnuirried. • It is further m\ w.ll that if the rents and profits of my real and jier-^onal i -tatr iip not snthciont for the imiintenanco and support of ray -aid wife and youn^^'er children, she may from time to tini^ iiiiploy such '•'' the principal as may i)e necessary lor that purpose. Ir, IS also my will, and 1 herehy direct that what- ever o\ my riiii or persomil estate ma>' reiniiin iiftcr th" (Itatli ot my said wife, and which has not been previously otherwise dis' o><(l of in this will, shall he etpially divided, sli.M'' ai) i sh.ire alike, Ixtwi «n my children. After the testator's death. M. le'ised a portion of tlio property to the defendant, under a demise containing various covi mints, for a term which extendi'd hryond Nf.'s life. M. having died, the deftnidant refused to perform iiis tovenants, alleging that the lease was determim-d hy her (leiith. Ill an action hrought hy the children of 15., the lemaind' rmaii named in the will, it was Hrl,l. 1st. That M. only took a life estate under the will. •iml. That she had a power of sale hoth of the real an(i persomil estate, and, as inelndetl in this, also the power to lease. ;U'd, That while it was oja-n to the defendant to sliew that M. had I'uly a life estate, hy accepting tlie leasts from her. and tntering under it. and c(tntinuing in possession of the firoperty. h.' was estojiped from dis^^ ^ing that slif had tit!'' to lease, either iM^Miuse the will did no! authori/.e a 1 ase under any circumstances, or hecause tin- power was only to he exercised in case t!ie rents and profits of the property were insutVicient for the maintenance of the taniily. Itli. Tliat in an action for rent w!:i -h a •cru"! due. or for any cause of action which arose after one of the renuiindermen conveyed away his inter-st, lie should not lie a party. Kvidcnce of Commissioners of sewers appointed under I'Jf.l WILL. li i' Ai't of Asst'iiiMy, iirtin-; in tliiit caitarity \s inini'i hiri' SlltVu'irtit Kihijip V. K'tnii, '* I'lh'. 'MV.l I'.ll4*4'l Ol «l4*lllll 4»l 4l4*% i4>. •L M. senior iltvihtd liind to T. M., ' also provule"! Muit -L M. junior hIkhiM Imvr full |Misi»'. . ,ii iin|||III4III)II) 4>ll|»il« il> i:<-4-4'll|li4ili4's. The t« niperanieiit of a testator ni;iy ''e Uirvous and liitihty. liis conduct may Im- Jriv.dous ai ipricioiis, mid luay alhO be e\eitiii»!« itii.j iuipid.-.i\t , \'U< . iliese def-cts \\ ill riot destroy his testamentary oapacity ; and the tini( t«at of unsoundness of mind, wliieh .in almost e.ery cas'' will be fouiul sutVu'ient, is, Was the testator lal)orint,' luidti- delusion a! the time thr will was madt '? Wiiere a .Iud;;() «»t Pmhatis rtdused l*r diate of a Will, on tilt- ground that the t« stamentaiy lapat'ity ot tli' doccased, thou;;h her normal statu of mind was sutlicieiitly sound to f.;ive testamentary capacity when uctiiii^ at its liest. was ai tiuiis temporarily tiestr txed on account of th<' latent morhiil state oi the hiculties oi the diceased. leadui;,' at timch to eccentricities, and at other times t*> insane action, and that the will in question was txecuted under tiie inllueiice of these morbid manifestations or some ot them; and on api»eal Uiis decision was reversed, and the will ordered to be admitt •! to Pndiate, the costs ul the routestuut of the will in tlio Louit beKuv and on appeal were allowed out of tho e.vitate, lU' iviU 0/ ILmn, Wl'nih 'iS'l\^- :ll-^»l4M-k «l4'vis4'4l ill liiiol *^tiiir<>« :ili4>ll«'(il^— •• l»ivi4l4'iiilo liileir-i :iii) \\<>rC lltTVOUS ;lUil ipricious. jintl I llc.ir \\i\- t'ts V : !ii)(l the tnii liiiiist «'.iry ciia«' 11* hilioriiig uudt'i- -liiiU' ol' a Will. :l|)lli'ity ol til'- was ^tiiVicifiitly .1 •ictiiii,' at \i< 1 ifcoiinl of til'' tccast'd, U'luliiij,' tiiius to iiisaiK* ixt'outoil under HIS or soiiU' ol vtrs( il, and th<' ;iit' costs of tli<' (jii iiiijx-'al wor-' lltlMl tl-OIII SM- H'ir-1 aii4i Aii- kt oi'ds. ()08S(.'Sried of (*>•' >liaivs of fiK cuidtiil stock of tlu' Dank of Nrw Hiun-^wick, d< visotl tlif siiiui; iwitli Watn hrixMitiiri-s, l).)ii Is and inorf.- ^a},'('H, iV'c.) to tlu' (It'fciidimt.s, his oveciitoi-s a,ii 1 tni-itoes, to [»ay jiiinMally to (I. W. u (M-rtain siuii : and to pav an I apply to tlic pla'ntiir Irom time to tinir, tlif whole remain- iii" *' divid'-ndM intfi'i'st and annual product' of th,. said "t vcral trust, luoncys. stocks, bonds, ;:{. In Do^t-tn- h. r, 18tJ!>, tlio SI u-LdioldtTH of the Hank, at a incutini^M'all- ••(1 for that purpos" in pursuance of the [)rovisions ot i;ii Act of the Parliament of Canada {'-i'l and -W Vic. ca[). /^T), dt(dared it expedient to increase the Capital Stock of the Mank by the sum of .'?;{lH),(K)i) from the accuniuiat mI [irolits, and that the I)iroi-tor3 allot to oacdi of tin- pr.'sen!; share- judders one share for each two now Indd l)y sutd: sliaro- liolder. //(/./, that the plainti/T was not entitled to receive fin additional shares so allotte I, ahsolutelv, as bein^ a part el the •' dividiMul-. interest, and annual [)r)luce" of the -hares so he»|Ueathed. l\'iiiitti v. iSci>r< I, '2 l'i. 'M, ■I'i ICral :iii>nil4* Tli»ri;;:iU4>4l |»r4»}M>rlv— ItiKlii 4>f 4l4'\i*>4'4' |4» lisi\4> iii4»iiu:a^4> |»ai4l «>lll 4»f |»4*|-SOIial 4>*«|il|4' W Iietll4>|-Sl|4*ll sIm»I||4| I»4> 4l4»lll' l»4'- l4»i-4* |»a>iii<'iit 4>f' l4'K>i4-i4'«— <'liar;;hm: i-4>«.i4liiai'> 4<<>tal<* u illi |»a.viiieiil 4»l 4l4*lil»— ^iillii-ieii4-> 4»l \v4M-4K — l*4>U4*i' |4I *i4*ll. A testator by his will devised certain pro^)erty, I»otI] real and perstnial, to his executors in trust to sell the same and invest the proceeds in good serurilius to form part of his resiiluury estate ; an.! In* provided that, aft ; r payment of liis debts, funeral and testamentary exiienses and ciu'tain icj.'acies, such residuary estate sh )uld hi diviil. d amonjij the le>^atees in jjroportion to the amounts of rluir respec- tive le;.;acies as pr vionsly specilicd. Another jiortion of his real estate wasd»vised to F. in trust to api)ly the rents and profits to the heinlit of his wife and chihiren, givinjj; iiiiu no power of alienation and restrictin;^' the ceriuo of leases to be j^iven by him to one year ; this devise was also •in condition that F. should, out of the rents and prolits. i-iHy to tilt' sistir of thf ttMtator an aiitiuity ol" iT") «liiriu.; Imt lifttiiiV'. Till- property so ilovisrdto I'\ was mort^'aj^od: //*'/'/. Tliat F. WHS I'lititlt'd lo havt' tli»- luort^auc paid liv tilt' t'\i cutors out of Ww rcsiihiary <'statt'. A testator, with re^r.jril to tli"' disposition of )ii< r<'siilii!U\ (stuti , usod tlio followiiin; words: " .Vs to all tiie rest, resi- (luo aivl rt'inaind'-r of my nal and personal ehi/Hio and ftfects wliatso(>v.r. which shall remain after payment of my just (lel)t.-. funeral and tt'stauiontary oxpcn.;c:;, and tlu several l«'}:jacie.-> or sums in ;4ross, iioreinheforc mentioned itnd directed to he paid. I ^:;ivf. dfvis' and iu'ipicMtli tlit same." \c. //»/-/. 'I'liat the.se words were sntlicient to char.i,'! the residuary real estate wiiii liie paymeiii of ilu (Kd)th and legacies, and that the executor had powi r to sell. MiL>'>.l V. l-'i;!h. 'A Pnn. |.-,:j. 4 4'rfifi«'«l r«>|»} of uill caiiiiol !»<> uivcii in i'\ iili'iuc in aMioti alltM'iinu ri'sil |»i-o|»4'i-t> . Kiitipii V. Kiii'i, '1 I'lt'i. ;un>. U IMM\4^-l I* i4 T. I .lii«lu<'*'« «>i°ilii>. Tho St u-kh dders of the Westmorland Hank, hy their chart ii:i> , rm- itnr •' Wcntinorbind linnl, v. ll'ixiiill, I lliin. flOlJ. I— f:\friiior<« l.ialiilii) l<4>Ki*»t4>i*. The executon* of the estate of C. invested a pm'tion ol whnkss. I'ifM II ill r\ Mlnm- in vidnirr liulu*"' vftttt-a II portion ol its funds in liank stock in tlirir own nani' s but for the lioncfit of tile cstiite, l)y wliich the dividciids were received. After their (hath their represeiitativcs, hy writinu'. a^n cil t) transfer the stock to the widow of ('., w'«'^ had takm Kill ittttTH of a(huiuistration < mn h shi nn iiln iniih in ih Imiil'i iii'ii. The stock certificates were lianih'd over to her, and she ufterwar(hs received tlie dividends, hut no transfer was iii;ide on the hooks of the hank as reiiuired hy its (diarter iuui h\r-hius. Till' hank suspt!i(h'd, and tie' i states of tht executors were phiced hy the .IudL,'e on the hst of coiitrilnitorivs for th.c stock r'.t;ru>!i:'.;; in thiir names, on the reeistt r. Ill hi, That they heinj^ priiihi t'urir h'<^ally hahk\ the .)nd;4e was rij^ht '\\\ not alterin<^ the rej^ister l)y suhsti- tiitin<^ thi' name of the i)arty eijuitahlv entitled to the stock- III If I'ri'Hiilt'tit iir. \l'rslini>rl'inil r>4-iiloi-s -Ualiilily. A testator died possessed of Hank Stock. \vhi>'li his executors allowi'd to rf;,iain inidisposed n\, and received till dividends. !5y the terms of the ilank Charter the (stockholders were individually liahle for the [•ayment of the ihi)ts «»f th«' ihmk, in |)n^porti()n to the stock thty Inld. Ahout twi» \ears aftei liie death of tiie testat()r, Uie Uank sus[iended p lyment, and was wound up undt-r the Act '17 Vic. cap. 1 1, and a call nnide on the executors as contrilm- tories. Hi hi. That they were liahle tlu retor in their ic|>rehentati\i' capacity, and iluit the paynnnt of h';j;acies under the will could not he allowed a^'ainst their contingent liul)ility tv) calls under tin charter. MrK''u:ic, ('iirutur 't<\ v. Kiioi, Mull. i. IMTI. \VI>I»<>%\*«. N'v Lights. %%iT\i:*»*«>. I Srioiililir %%'iliM'OH 4tii4>*ilioii*>. A scientitic witness cannot Ih' asked (piestions, the iinswefs to which are hased upon previous evidence }:;ivou I'y other witiu'sses, and ui)on which conclusions are drawn which are for the jury to determine, /v'c// v. ThnniKon, 2 «.! RIM VS: 1 J.t\H VViTNI'lSS. 4 Joint iii«li<-|iii<>iil \%'if(i> 4»l oii<> |ti-i««oiM'r oiirrnl a, uiiiK'Hs for aiiollMT. A. iind 1). wore tried to^ctlu^r on a joint iiidictinciit for assiiult on a pcaei' olVicor, and tliewitf oi \. wusc i r.las.i witnoss to disprove tho oliarijo nc^ain^-f, 1^). Ifrl'J, Th it li. r (videnc'o wan properly rejected, i)ut li:id the liusli uul mf It.M n on his trial, she would have hoen a compt'tent witiirs.-. 77j'* (Jiuch v. Tli'iiiison iiiul (\}iir<)if, 2 If'tn. 71. ■ ^'''( alsi' 'I'hr (Jill I'll V ■I'liiii'.'i Vhinnaon rt i!., Ij. II. ('. ('. vo!. 1 j'a^e ;177. :t n:i^«-4l wiliM'so* l^vi4l<>ii4-<- on loriiirr iri;il. Where the evidence of a witness taken on a fonntr trial in ihe same eanse and since deceased, was reul umiu tin .Iudt;<'"s notes, tin* defendant's counsel olforcd eviil'iioe to 8\n\\ a statcini-nt made hy the witness whil.' .uiiviui; his evi- dt'uee in the i)rrsence of the plaintitl". Il-hl, Tiiat tii'' f\idene.' was pr(>perly rejected. Pr'.dil»ilil> of -4'iiii<««' It'll l4» Jill) n|ioii. Where the maker of a promissory iMle set up infinn' as a dcftnre aj^Jiinst the imlorstv', autl the oidy witiK-ss to prove thf infancy was the payee of the note, who was a Itiother of the maker, and who had hims. If indor-^nl it t<» th'- plaintitT : t\u' Court n-fused to disturh a vi rdict in favur ol the indorsee, although tlu; witness was not contradicted or otluTwise diK('rrdile In *«iiit> Whore a witness under e.xauiination de hem' i v.yc before a .Iud|j;o had ht Id et,>iiiniunieation n dative to the suit with one of the parties during an adjournment of the examina- tion, notwithstanding a eaution to th • contrary -iveu liiia WlTiNEbS. 1200 \(t}ii luil no'. ?(>in|)i'tont witmss. /.ni. 71. f ^V*' illso L. 11. (,'. C. vol. 1 11 on ;i foniui* trial was road UMtu the otr»'iV(l t'vid'nee to •liilt; f^iviui; his ovi- r. //•■/'/, Tliat ill.' .irott V. Wiltitli, -1 |i<»ii. ll'» il to sot up infancy he luily witnuds to .' note, who was a S' It' imltu'si'd it to » a vtrdict in favur as not contradicted xive cirounistauces, ry upon the credit /\ /•/•/• r»i. If terttimo'iy of on-- , It to the j'lry.anl ■, tiie Court refused ,•,-, ;{ .1//. :UM). ly ill siiil. ,/,' /;.•//.' (••-<'' before ;t' to the huit witii lit of the exaniina- ;ontrary given him hy tile .Jiid^o, it was iudd not n sullieiciit .L'vouihi for i.!ii])pre8siii<,f tho i'xnniinatiiui. Ifoc don. Ihnttji v. Ki'iUov, '1 Km- r.lii. 7 4'Ollt4-lll|»t Alt4-|lll:ili4|ll4>ill \l>'^4'n4-4>. A 8nltp' was tried, was .served on the 11th Septeinher, and the witness attended for several days, and knew the cause was not tritd : Hrhl, That lit was Ruilty of a edntenipt in snhse(|uently ahsentinj:^ him- self. Joinmtnn V. U'iliston, 2 . 1//. 171. VHifr-- a witness acee[)ied tlu- conduct money, and lit with the [lerson wiio Forved liini with the suhpa^nn, I remained at the Court several da\s, an attacliinei t \\t ini< was prjiiitt d aj^ainst hin^ for .suhse(|uently ahsenting him- ■-( If. th' I'.Ljh he and another j-.trson swore, in contradiction lio served the snhiiena, that the (uiuiniil to tilt party w writ was imt shewn to him, and he also swor<' that he Htt.ndf'd tlie Court as a juror, and left in conge{[Uence of ill health, witli the intention of returnin<*4'4-iili4>ii l4»r ^ohiiini/.iii;; tl:iiri:iU4' <'i iiiiiiis:! |ll'4M-4>4>4lilltfS. A prosecution to recover a fiiii uuil r I K-v. Sta'. cap. 1 Iti, ti solemni7,in<^ marria^'e h.twitu iiiinor> without tonsiiit of their [)arents is a " criuiiual [aocff.liu^,'" and therefore the defendant is not a coinpttent witness under the Act l'.> Vi''. cap, 1.'. /•;/■ y». llastuiily ii«>t ii criininal procta'din^; — party i;li ii:i'i, a conipeli'iit witness. l\.r pntc Cnnk, 1 .1//. 50(;. KiTsilliii;; \tiliio*>*> .S" l',vi(i.-iuH' VI 11. ^l l>iliK«-iir«* ill 4li«>4-o% criiiK' WlM'tlicr ilui' (liligt'rife has hcoii usfd t() discover an atttstin{4 witiu'ss must dipnid mi tlir circiimstauces ul the case. Ciioir v. Ci/r, '1 All. ")77. Ii ^iibxciiliiiiK uilii4>«>*> A«><«iKiiiii4>iii 4»l iii4i;:iii 4 :ill4>4l l»> |»iiii>, |>r4»viiiK lio«>til4'. If a NVitiuss called to prove a case unexpectedly gives evidenc" in oi)position to it, the .lud^e may allow Hk party calling: -^lU'li wituebs to treat him as hoKtile and crosa- ixamii.e him, lliou^h the elTect of doing so may lir td discredit his testimony. ihuitUoii v. AiHt'nnui, 5 ,1//. •is'l. 11 ll>-liiu. 4'oi|»4»mti4»ii 4tl ^iiiiii .i<'l4'll«hllll a 4-4MII|M'l4lll \\illl4'S«». The proceeding for tlie recovery of the penally lieiii-; in nature of a civil suit and not a crimnial proceeding, the evidence of defendant is admissihle under ll» Vic. cap. 11, ^Consol. Slat. cap. Hli, l\i luni' 'I'l'isi, I /'. a /•'. 277. I.t- lll«'K*ill> «»4»l4>iiiiii/.iii|{ iiitii-i-iiiK«' riii4' Il4'r4'ii4l:iiil ll«»l U 4-4»lll|M'l4*lll «« illl«*«t«>. The prosecution for the r(;covery of the tine impostl by the Ilcv. Stat. cap. 1 1»'», sec. .'{, (Consol. Stat., )Higi lOHiJ) being a criminal proceeding the defendant is not a couipfclent witness under the .Vet ll» Vic. caj). II, iCunsol. Stat. cai). UtA lUij. V. H*» i:«.|i||4* 4»l 4l4'4-4>:i»««'4l IM'l-oOII ~ illl«*OI'l'Ul>4>|-»l«'4l I«'*«lilll4»ll>. Wlien it is sought to fix the estate of a deceased per-oii with a liability upon the uncorroberated evidence of an in- terested witness, the evidence ought to be very clear md free from suspicion. Ex paite Simpson, 2 I'n'j 14(1. WITNKSS. 1-271 -l>:ifty oh uv^'rl. a 1. 500. ■d to (liscovt'i ail (•ircumstan>'t's ot I of iiKlKiiinil. H'ssary iutorf at- L'tls of a jud^iU'nt nni V. •Jnhit--l> ol \\ ilin's«». • i.tiialiy I'fiii!^ in il proffiHlin^', till' V 11> Vic. cap. 11, I /'. A r.. '1". I'iiH* l»rr«'iHl:iiil till' tint' iinposfl oiisol. Stat., ))U^;c t-lVndaiit is not a cap. 11, i Consul. 1 a (k'ftaseil person iviilt'nci' of an in- he vcrv dear :intl ,,'1 Pn4>«> AlloriM'y in 4-aii«>4>. Attorney in eanse not allowetl fees as witness it btin^ liis duty to attend the trial of cause. Jomx v. JiotHj'nnl, 1 |M 4'r«'«liliilit> of uitii<>*»s a 4|iM>^iioii toi* iiiry. The crediltility of witnesses is altogetlu'r a ijuestion for the jury, hut a ditVereiit rule i)revails where there are writings which tt nd to eonlirni the testimonv of one side or other. Smith V \ii l*«'i-*«oii si|»|M*iii'iiiK as piocloi toraiiollu'i*. It is not a valid ohjection to a witness in the }»robate Court that he appeared as proctor for another person in- terested in the estate. //'■ Sturl.hin l-'.r j,mt'- H-iiirh,! I'li-i. ^iil»s«-i'il»iii^ \\ ifiK'ss lo 4i«>4>4l lii<«iitiiri«'iii } «»i |>r«>4»f' h.>. toi- |>iir|»o*>4>«» of r<'ui«>ii->. Srr (U'.mI 1. I<>. I'll, ilriii. ( 'l tlhii H.' V. 'I'licuhiill . I*fi% if«*K<'« Sff .Xrrest. 11 \|>t'll*«4'««. Witness attending trial as a juroi- )i- too ranch intt'\ii'a te(l to hf e\;tUlillt d, callllot reeovei- lii> ! eer) .S. <• C.ists II. :17 'l'a\al»t«> r\|»<>iis(>s f'aiisr |iiii oti on |>a}iii<'Ml. Sff Costs II. :?."». Mii4-aK«-. ' .SV.' Costs II. vial«'iiatil.<» «H \» ilin's*. S.r Costs 11. %tti«ia\ii*» of ati«'iMiaii«-«' snfti* iciM-y. M C Costs 11. :;•.». I'.xaiiiiiiatioii 4 loxo <'\aiiiiiialioii. Kvid elice Vlll, f as4'*k as t4l 4-OIII|»4 ti'iicv oi> iii<'4»iii|»«'t«>ii<'y of \vitii«>*»«> troiii iiif<'i-«><«i, iK'for*' Aitatlouiiiu afl iMiriir- lo !»«' 4*&aiiiiii«'«l ill 4>ivii 4*aH*>4*<*: I'linur V. KlUnt, I ten It I V. y unniKf, Jhr. 1 A' 1 1 i II I mn I'j:.' \\(ii:i>s ,Mi;.\NiN(i, coNsriircrioN /i'- h'liimin \ . 'r.iii'nr, \■ \ . I ilUult, Will I J, ! I If V. Hilcif, Ihtf V. li'i.rtrr, hi I a ton V .H'ihlcr, I hi, V. Mi Cotthi'l'lf, Ihh' V. lliurix, II'Ui II V. IhlfHlitl, •2 /v'/r/- li's. Ji AV// (.1 :{ A'7l: I .1//. ;(-• 1 1/7. :;7^. 1 .1//. :.ii(> 2 .1//. -JT.-. 2 .1//. :i77 2 .1//. lie. 2 AIL ir.i. 2.1//. 12. :l .1//. 1(11. 4'oii% i« lion for sclliiiu liqiKii — I'lormliii;;^ iiiidci' \%liai \*t. >< . .Iu.-jUcc Ml rr;irr I \'. cap. 21. woHi>s iii:%\i><; < o\^rui < Tio\.) " \«li:ii'<>iil iiiKl aisiiiM-|ioii. .S*< I)i-.il 1. iM. • \t Ira*.!" <'i-\ ire. Sr. riactice IX. :?. •> ICaiik oi' f(lu4'>" Sir Cit'wu Gran I 1. ll». *- Itail" ill 4 oiiiil> < oiiil %« lo iii4 liHir^ •.iirriir'^ on i iiiiiil IioikI. .Set Bail IS. •' Itii'akiiiK liiio fi<'lr lawful Iriirt" U iial iiiiiii ** To k4'4*|i ii|»*' a mill 4laiii. See Covenant 2. '> 4 4»iiiit;ii4Mi^ *iiiall iHlaii«l<»" ♦• l,4>»» »\al4r iiiaii* " .SV*' Crown (nant !. 20. ii -I- WOKI^S (MEANlN(i, CONSTUUCTION). 1278 4><>ed. Sre Ihed L n, '21— Easement 1. '* Water privilcKe.** See Easement '2. '* lmmedlat«>ly upon such sale** execntion of deed. Ste Deed I. Jil. ** Sell** necessarily meaninK to convey. See Vendor and Purchaser. ** Slock** not confined to live stock. See Will 9. 81 1274 WIUT. \i I; *' Wuo Tor** and " rerovrr** Indlrni** a prorrpdIiiK tn p<*rf»onuni. iS>^ \V liar fa go I. *^ Heal aad prrwonal pr<»p«'rty** in ImI M>«'tlon ol Art :I3 %'ir. rap. 16, ar«' JinaiK'd aad «'KplaiH<'d hy >iee AsHt'Bbnient I. 5. Tradr pi'ult*f«f AHHi'snictit 1. (> Inhabitant." *'2!^'<>ar«>««t Jn«>li«'4> <»t (li«- ■*«'»«■«'" ni«'nn*> n<*ar4*«»t («lis- int«'i4>*»i«'ii4-4'. iSVc JuHtiee of tln' PtHCf II. If). ** Pr«»p4'rl> pliink4'4l 4»r Iinih4*i*4>d 4»ii tli4> «inrfn4>4>*' ii««i pr4>v4'4l hy 4*% i4l4>n4-4* thai uhai'l %%aM in K<>»d 4>rd4>i'. See ^Vlml•lat^e 2. 'l'ianMp4»i«iiion 4>f wordit- Varian4'4*. .S'.r Vuriancc r>. *> l*ur4iniM>" do4'<« nut n4>r<'MHariiy imply a 4M>nv<>yan4'4'. See Warranty (1. Atth v. Clark. *' <:4>inmcrriai •ra«'«>ii4>r*' iN trnKnK«d in an " o4'4>u|Mi- lion" or '• railinK**^ Sec liritish North America Act 12. F'lirlniim ex parte, '* I>ivid4*nd«». int4>r4'*«t an4i aintMal pr4»dn4-4>." See Will 31. \\ Kjifinii v. Scoril. '• rrrKoufi/' It'tfai int4'rpr«*iation 4>l thai \»4>rd in Ai'U ol l^4*Ki^lntur4* inrlnd4*h hodi4>M <*4»i-poral4<. See K lection .5 Retiina v. Heed. ♦*JFav4*ni4'nt." See Statute I. '* KcMponteihiiliy** and *' liability**. See Bhipping Law 18. •« !?lay** coHMtrurd ^VmuNt** in Hialufe. See 8ttttutfc 8. *■ Prmon rarryini: on bniiineB«i.** See AHsessment 16. Smith ex parte. WBIT. " Amendment — Practice — Bheriff. WRIT I)E PROPRIBTATE PROBANDA. 1276 rorrodliiff In k. iirar«'*l l«''*»- y u «oMvry«ii««'» II uii •' orciipa- iltered A. fn. A roturnod.^. fa. having been altered and reissued l)y tlin evidence in an action of trespass against the SherliT for faking goods under it. Johnson v. Ulnsloir, Ber. 53. Mistake in endorsement by Sheriff may be amended. //'. Return by Sheriff " (u-pi eorpun" on (vi;)ta« issued against two defendants, applicabb^ to both. Rex v. Sheriff of Qlou- o'Hter, Ber. 187. lM..tac of. In the abscnco of ovideneo of the actual time of issuinj^ a writ of nwHnr process, it will bo presumed to have been issued on tlie day it boars ilate. Poniiircs v. Provincial Insn- r.ince Co., Uil. T. 1873. Alteration made in the return day of writ, though before it is rt'tiirniible, vitiates it, unless it is rusoalod. Andrr/rx x.McKrmic I All. 'Mi. Wiien writ not sorved personally, the affidavit should state the name of the person upon whom it is served. .S'(i/»- diiU v. Godsor, 1 .1//. It. Writ not *«i'rv4>d |»rr«(OiiHll> -!V» JiidxeN order to per- lei'l «*«'rvlct*. Srr Practice VI U\. CJoiiiinuance. .S'» '• Judges Order 7. — Practise IV. 12. WiMMi coiitidrriMl U«iiiffl— f7iM'tilir:it«> of Atlorii<\v. Where a writ was made out and tested on the 11th Jiiiif, and remained in tlie Attoriioy's o;hc-e until the 25th, wluMi lie stu-v^d it on tli-; doferidant. IFd I, th:it it it was not i-'. 63. WKIT OF EKKOU. .S'*;f Error (Writ of.) WKIT DK PKOPRIETATK PROBANDA. *' ll.plevin— Sheriff. 1276 WOUNDING, ■•ttur hj Hitorne|r*M rierk. See Kcpleyin H. WKIT or IN^lr|KV. " rrnctise VI. WRIT or KKNTITUTION. Landlord and IVnant Vil. 5, 6. WOKK A.'«D LABOUR. " AsBiunpeit. WOiriVDINia. '• Criminal Law. (. i; ADDENDA. INDKX OF TITLES CONTAINED IN THE ADDENDA. PAUK Abanilonmont — Buparatu TreHpaHH K lotion of I'iTH ' Acceptanuo of QmxlH. See j AnHHinpHit ia8» j Action at Law — Splitting up Claiind— ArrtiHt. .SVr Arrtmt I'iH'i , Aotion on thu CaHe 127H ' Affidavit 12H| Apical S2H2 Arrent Assawtment Aiiaumpiit 128H ; Attaohment " ' Attaohmeiit -Law Attnrnuv " I 1 »Anu [nforinatioii . InHolvent Act of IHTrj . . . ... 1293 • • • Joint Owneni 1293 •ItiHtioo of Peace " •I iiHtiiioation — ProcuHH gtxMl on fitce 12(liKonce. sV«' Action '>n the Case 1278 N.«w Trial 1291 Pleading 1296 Portland (Town of) 1297 Practice -In Kpnrnli' iM'kpnM^fM, iiu nliiiii«loii. nariii ol Jolni irrNpiiMM. • Sf New Trial, (iiujmm v. ( 'ha pin an, tt al. 1 /'. ,i /.'. 411). Kl^rlloii of trrnpufkM. ilmr for. In Jiidfr<>*M dlMi-riion. Ibid. Acceptnnre of irood*> t>iit>*>rqu«'iil lo(llni«' iiKrtM'd u|ioii for di'liv«'ry. Set AHmirapHit, i.hldi udti). Mofat v. Lnnt. A('TI<»^ AT LAW. flplltfing up; ol rlHin Hbolr nniouiii dU4> iii limp. »f flrsl.»ull - KubM'qnrnt kult nnd arrenl. See Arri'Bt, (Addeuda.) ?^'atii)nal Park Bank v. A7/«.>. Af^TION ON THE VAHK. I— Adlolnlng Innd <»Mn«*r«- Drf« ndant allow iiifr rrlltir fo rciiiain afirr biilldliiK d<'i»iroy4'd— 11 iitvr < ol- l<*rf Inir . and rnnnlnu iifialii*>l plalnilfl^M %%nll- Plalnilfi*!^ drflauli When anion not niaininin- abU*. The ordinary and legiiiniato use of one's own land will not conHtitute an ininry for which an action on tlu' chbc for damage 8 will lie, nor for default of defendant in not doing what he is not hy law required to do. Therefore where defendants owned a town lot on which there Lad bten a house with a cellar underneath it, and the bouse being destroyed by lire, the cellar was allowed to rtoaain uncovered, and plaintiffs erer'ed a dine on the adjoining lot and sank their '' ..lon walls tu a lower depth than defendant's cellar, y at water co' ting in tLt^ cellar flowed to and against plu itiff's wall and damaged it. Held, That defendants were not liable. Trmtee* nf St.John't Young men » Christian AMUociatioii v. Hutchiuto'^, et al 2 P. d B. 628. t~Torl~Dnlr faHMinvoni of com ract of employment Traverftinn ilie enpioynieal, ihe proper mode ol denylBK the «%iiilenre ol Ihe duty to use due dili- Hencc. The first and second cotmts of the decliuration stated an Addt'fuln,] ACTION AT LAW. Vli^ , no nhiiiidoii. If ii||r«><'d u|ioii aratioD stated ft& employment of thf (lof«Milai»t by thn pl'iintlff uml oclior owners of the vtHBol — tho dofentlant hhiH<«lf boinj? a joint owner — to launch the vchhc^I for a reward to ho paid therefor, and that thereupon it hocani* and wau the duty of the de- fendant to U8(! due Hkill, can* and dili^^oncc for the purpoHe aforesaid, yet the defendant did not usi- dm oti'u and Mkill, kc. Ilfld on demurrer to pleas denying the cuiploymont an alleged that it waH in respect of the alleged employment of the defendant that the Hupposed duty to take due can;, Hkill and diligence arose ; and without such an averment the declaration in tort would have been bad, and that a traverse of Huch employment was the proper mode of denying the exiHtonce of the allej^ed duty. Ptwiville v. (rnrien, 1 1'. ,f It. artO. Joint ouiirrw in vMM4*l- Anion by ownt'i'utCHinNt Joint ownrr lor tniiinK ve*tM«>l and ItiunriiinK tier in a nf>irli|i<>nt manner— Joint owncrHliip no aii«t«v<*r to anion. To a count alleging that the defendant took the plain- tifl^H property in a certain vessel, and so negligently launched and managed the uaid vessel that she was dam- aged, and the plaintitT's property in h'3r was lessened in value to him, the defendant pleaded in answer, the joint ownership of the plaintiff and himself of the property in question. field, That the plea was no answer to the action. — As long as tenancy in common exists, one tenant in common eannot maintain trover against the other ; but when negli- gence of an active nature amounting to misfeasance is shewn, one tenant in common is liable for the misuse of the property, it is a wrong for which there should be a remedy, ibid. 3-~Corporatlon Saint John City— power to raise level or the Mireets— Evidnire of exercisinK powers carelenHly — wilhdrawinK evidence ol same from Jary— Settingr awide non>suit. By the charter of the city of St. John the Corporation were given power to alter amend and repair streets there* 1380 ACTION AT LAW. ..iihirnda. tofore laid out, or thereafter to be laid out. The chiirter is contirraed hv '20 (Jeo. III. cap. U), and theriglitto alter the leveU of Htreets is recognized by 1) Geo. IV., cap. 4. Church Btreet was not one of the streets original';, designated by the plan of the City. It wan raade a public street in !Hll, on pe- tition of the owners of the land through which it passes, who gave the land for the '*tr»'et. In 1874 the Corporation raised Church street, below Canterbury street, filling it in to within four or live leet of the plaintitT's house and shop. On th<' em))ankm(nt so made in front of the plain- tiff's house and shop, the Corporation erected a fence. By i-eason of this, the plaintilT had no access from his house uud shop to the street, hut reached them by the narrow passage left next the house and shop running easterly to- ward Canterbury street and westerly toward Prince William Btreet. An action having been brought against the Mavor, &c., of the City for the damage sustained by the plaintiff by reason of so tilling in the street and erecting the fence, in which the plaintiff was ncmsuited. on a motion to set aside the non-suit, it was //<•/nt thitt wniii«> wan obialn«*«l %» ronK'ully and inulirioiiNly, Ar. No action will lie for obtaining an cj- parte injunction order from a Judge, even although it was done maliciously, unleBB the Judge was induced to grant it by false represen- tations. Quarf, Whether an aliogation that defendant falsely procured the injunction order to be made would be sufficient on demurrer. (JoIUhm v. Everett, 2 P. ii li. 4G9. Aildrnda. Addtnda.^ AFFIDAVIT. 1281 The charter is ?litto alter the jap. 4. (yliurch ^iKiiatt'd hy the in ! 811, on pe- i it passes, who le Corporation ,reet, filling it tT's house and it o( tile plain- d a fence. By from his house by the narrow ng easterly to- Prince William nst the Mavor, Dy the plaintiff sting the fence, L motion to set 1, Fisher, and lisaenting) that e street in the u' ft-nce on the anil shop, and loti had tilled was of itself and without deration of this ury. l*ntu»on It »iniiM* was \rU' injunction le maliciously, Ifalsu represen- that defendant lade would be P. ,i li. 469. ]*Iaiit<>r nnd Hrrvaiit— Injury to «»<>rvani -Drnih of IVIti*tier Survi%'al of anion. Sir Master and Servant, (.hhieuda,) Connolly \. Shives. AFFIDAVIT. I— FoK-itfn Company .%ilH4*liinK ordfr- KiKlif to mii«; by uiimr* or Hh in<'oi|>ornlion, niUNi he Kliewn by Ihr allif1a\if. In an action brought by a non resident Company, an attaching order was obtained under can. 48, Con. Statutes but the allidavit on which it was granted did not shew that the plaintilTs were incorporated, or had any iight to sue bv that name. Iltld, that the affidavit was l)ad and the attaching order was set aside, .iron Stone Co. v. Ihinhani, 2 P. d B. M)0. AtlarhluK ordvr. Affidavit for procuring same need not negative the fact of claim being secured or deny the intention to vex and liarrass the defendant as provided for in cases of writ of attachment. Ibid. *i— Afta«*hsn«>nt l^at%'— OmiitinKto Ntat** in affidavit that piainiin^H I'iaini in not Me<'iir4>d. Where a writ ot attachment was issued upon an affida- vit, in which it was not stated that the claim was not secured by a mortgage, pledge or lien, vfcc, as required bv Consol. Stat. cap. 4'2. sec. 8, it was held that the failure to comply in that respect with the statute was not a mere irregularity, but that the writ was a nullity, liurke v. Clarkr, 2 /'. .<• li. (\&L Writ of attachment if good on its face is a sufficient justification to Sheriff although actually void. The Sheriff is not bound to examine the affidavit attached to the writ. Ibid. S- No MtairnM'nl ol total amount MiatvuK'nt^in dctnii — Mlui«'m<>nt ol no aKr«>«m<'nt that attachment Hhouid not iMMUf DeNrription ol pariiruiarN of demand. It is no oitjection to an affidavit for attachment that it does not state the total amount for which attachment is to isHue, provided it states in detail the several sums in vhich defendant is indebted to plaintiff. 1282 ASSI<:SSMENT. [.iddrmii. It iH Burticii-nt for plaintiff to state that no agreement was enttTid into by him or by cny ) /Hon on hiH behiilf whereby no attaehmont should isnue &c. It is correct to (U'wcribo the particubirH for which attiicli- meut iwHUos iiH tht — " particuhirs of phiintiff's (hinaiul in this action." Cohill v. C>ihill, '1 /'. A- />'. i:\H. APPFil.. Equity 4 <»Mrt 4|ii«>*ilioii ol rn*i|*» Wli«>lli«'r i|»|M*nl will Sec Co8t8, (Atlil'H'l'i.) S.ii/rr V. Iftirrix. \HUKHT, ArreHl- Pr«*%'iou*> }irr«>*»t loi* si«iii«> <'iiiii«€'liarKo from iiiMtudy MpliiiliiK up rlHini*» l%'hol«> iini«MiHf tUtv at tiiii*' ol ar«»t MUit. A suit or prcK'ecdint; mas not relate to re» tuljudicata and yet it may be vexatious and there in no necessary con- nection between tiie vexatious character of a proceedin}; and the fact that the subject of it luid, «)r had not, been previously adjudicated upon. Therefore where plaintiff arrested defendant for $<>3.000 for money had and receivtti and proceeded to judgment, and Hub8e({Uently arrested de- fendant in this suit for $'2().()(M) which it was shewn was du< at the time of the commencement of the first action but WH-' not included in it : //»/// that the defendant was en- titled to be discharged from cusUidy. Satiotutl Park Bank y. EIUm, 2 /'. & n. 547. JleUl by Wt'ldon, ./., that an arrest for an amount— " United States currency' — without a Judge's order is bad. Ibid. The right to arrest in actions of tort is not taken away by the Consolidated Statutes. Afnllin v. Front, /'. it fi. 4t>8. AffMEHMMKNT. fllal«>en«*uf->AnblKUouw and un«'«>rtaln -K«>qul«»ito In* lormallon not lurnUh«*d KlKht ol A*>he%*orn lo Where Assessors under authority of Act 31 Vic. "ftp. 86, sec. 4, required the manager of a hank to furnish them Addenda A ATTORNEY. itisa lli«>r i|i|M*nl will " a true and correct statement in writing — under oath — setting foffVi the whole amount of income received for such bank within the city of St. John for a fiscal year preceding Ist May 1877," and the Manager rendered a statement as follows " not profits or income derived from business done within the city — NiW Held that as he had treated the t um " Income" and " Net profits" as synonymous tho £ n- 3ment waH uncertain and ambiguous and that the assessors were justified in ignoring it and assessing the manager according to the best of their judgment. Laider* Et jHirte, 2 P. |icnncc of itoodM HiibN<^qiieiif t<» time nKr<*<'d upon for deliv4'ry— f'niiiiot be MCt up hm a d«'f«'Hr«>, or in i«>durtion ordamuKeM. Where it is agreed that goods shall be delivered at a certain time and the defendant subsequently to the time agreed upon with a full knowledge of all the facts, thinks proper to accept delivery of the goods, he cannot set up the non delivery at the specified time as a defence to the action, or in reduction of the value of the goods. Moffat V. Lnnt, 2 P. it B. «78. ATT.MIl.TIEfMT. C'ontt'Hipt ot 4'ouri -Injunriion order— UiHobedience not uilfUI. Where a Judge sitting in Eijuity being satisfied that a breach of an Injunction order by the defendant was not wilful, declined to make an order for his imprisonment, the Court on Appeal refused to disturb the judgment of the Court bolow. Sayvi' v. IJnrrin, 2 /'. «l- B. 077. ATTA4 lliTIElMT LAW. Ntatemeut ot amount in altidavit— Statement ot no agreement Ha; Parlirnlar««. .SV. ArtidHvit. [Adilrnd.,.) CohiU v. ( nhiV, 2 P. .^t- /?. 138. KeqniMlieKi of attldavit. See Allidavit, {Addendii.) ATTOK!«UY. t'ollerllnit mone>. Although an Attorn»'y who hss collected money may he 1284 HILLS AND NOTES. Addenda, made to account therefor in a civil action tlu^ Court will compel him to do summary justice without putting the client to the necessity of hrin^inK an action. Ex parte Kerr & Thortie, 2 /'. vt H. (Vin. Application made by name of firm of Attorneys. Ibid. Agency of Mtudrnt nt law in ofllirr of principal -C'on* tlnunnrr orAffency— :t|onc>- pnid to Student alter becoming attorney- Oeeupyiuff MUine otHee. See Principal and Agent, {Addenda.) Easter:. Township Bank v. Ilanningtnn. BII.I.M A!%D NOTKM. Peruninry intere*it— ietlon by penton having; none- e placed in shed or warehouse, pending coiiiiuuniciition with con- signees, at owner's risk ; and chut the deundjints will not be responsible for any loss or damage to goods so sent, nor for any delay which happens beyond their line. The fjoods arrived a*. Portland, the terminus of defendants' railway, and were stored in their warehouse there, and were destroyed by Dre on 9th August, without any negligence on part of defendants. In an action on the case tu recover damages for loss of the goods : Hrld, Tliat de- fendants' liability as common earrit rs endeil at l'(»rtland; and that the agreeun ut to torwarjl the goods td their destination as opportunity might oHer, did not render them subject to the common law liability of carriers. Where plaintilfs ui;ent bad the means of knowledge of conditions endorsed on a way bill, plaiutiM" is lound by ibem. .\ carrier clearly has a right to stip\ilate against a lial)ility for loss by accident. Annntrotiu v. 'J'lu drmtd TruJil: Ilnihriiif i'mnpnuii, *2 7*. <( /)'. 'IIT). < i:kti4»kaki. 4'«>P) 4»f |»r«»4'«*4'«liiiK'* l'i-o«lii«'lioii — \«>«*<>*»<«it) of. i^hn'Ti, Whether a party aj'plying lor a • jmrti' Alxi, '1 /'. d' l^- H4M>. DlMOb«>di«'nrc nuc uilliil. Stic Attachment, {Addtudi.) Stitir* v. Uarri*. Addenda . i CRIMINAL LAW. 1287 4'ONTKA4'T. Arrppiikiici' of k<>oqii«^iit to tiiiit; iiKi*<-<'ry Wlii'ii raniiol b<' m*I ii|» nn u «l«>fl4>ii«*e or ill r«*dii4'lloii of dnniHK<'*>* Ser Aabumpsit, ilddcndn.) Moffat v. Ijiint. riifioii <»t liiiiiii Joliii lo fill in direct mid 4>rC'4-t f«>IIC4*. • See Action on Cjihc — Nei^lii^cncc, {AddM4'r lo |>ii*>«», ««iiiii4*4'tiiiK i>4>r«»4 *i«t t4> iin» I»ri*t4»iiiii4'iil. Srr liy-LjlW, iAddtfidii.) ForriKii 4'4»r|>4>riilioii— !%4>4-4>«i*>if> of <»li4>\«iiiK I'iKfit fo Miir, 4ir iii4>4»ri»4»rtnloii. Sfr AfVulHvit, \Aiideuda,) Anm Stonr Co. v. Dunham. Rri«4'rviiiK qii«'*»f ton 4»f aii4>\«mi4*«> of 4'0*itH— Appeal. \Vli»r(? H .Iiulm' in Kquity reserved the quedtion of costs oD refuHinj? to niiike um order for imprisonment for breach of an injunetion order, it was Iltld, That the Court on appeal could make no order concerninR the costs in the Court heh)\v. Qu(rrt\ Wetmorr. .1., whether nn appeal from the Equity Court will lu' allowi'd oti a ([Uistion of imwIh, except under very peculiar circumstances. Safjrr v. IlarriH,'! P. &, li. (177. 4:KIHi:>iAL LA%%. indiriiii4>iii- OiiiiH*ti4»ii of word ** f4>ioiii4»iiwiy ^*— Etf4>4*t 4»f— H(*M4>rviiiK qii4'tid4>ralioii of C4iiirt -W4>rd!« '" diiriiiK trial'' in K4'V. Nial. 4'ap. I-IO. «»4»c. 4i. An indictment charged that "the prisoner did steal, take and carry away, &e., without charging that it was done feloniously. Before pleading, the prisoner's counsel moved to quash the indictment. After argument, the pre- siding Judge allowed the indictment to be amended under 82 & 83 Vic. cap. 21), sec. 32, by adding the word " feloni- ously." The prisoner was found guilty] upon the amended indictment. Held, uu a case reserved that the indictment 1288 DEKI). [Addenda, without the word fclotiiouslj waH had. FLld, (by Allen. C. J., Weldon. Fishor and OiifT, J. J., Wetraore, J., dm.) That although the objection to the indictment in this case waa taken before plea pleaded, and that technically the trial does not begin till after the prisoner han plealed to the indictment, and the jury are being called and sworn; yet that such a liberal construction should be put upon the words— " durijg the trial" — in Rev. Stat. cap. 159, sec, 22. Oonsol Stat. p. 1088, that the provisions of this chapter relating to reserving q iestions for the consideration of the Supreme Court should be held to apply to any of the pro- ceedings in the Court below after the indictment has been found. lietfind v. Morrison, 2 /*. & B. 682. D4:VI4UES. Wh«*n doubtful am to wlint treMpuMM dninitKc*^ hnv(> b«rn Kivrn by Jury. See New '\!r\Q\, {Addcnd'i.) Gr«t— Drfcndnut not Ailing up eel lar — Plalutin**' dclaull — When delrndant ooi llabh*. See Action at Law, {Addenda.) Tnutte.es St. John Young Men's Christinn AsHoHation v. Hutchinson et. nl. Acceptance or ||<*oH oi.. nt miiii'x up (^<^i d(>f<*n«l»nt not Vnuitees St. John chinHon et. ct8, and uotifyinfi Morrow v. Thf ■ Bona rtHoH o! — i^nrroundlnif ■rmtniiiK mntt^^^'' nale lessor of the T phiintiflf against C. \\. N., liu conveyed ail his real estate to his son, W. P. N. The consideration expressed in the deed was $1,200, but then; was no evidence to show that that auui or any sum had i)een paid, and the fair inference from the age, powition and cireumstances of W. P. N., was tliat hi' never had any such sum with which to pay for the prop- erty, and there were other circumstances connected with the conveyance which were calculated to throw suspicions upon its being honafidf. The property was sold under execution and bought by the fiMuale lessor, who brought ejectment, rhe jury found that the conveyance was voluntary and fraudulent and made for the purpose of defeating the judg- ment of the lessor of tlie plaintiff. On motion for new trial on the ground of verdict being Hgainst evidence, it was Ifdd, That the jury were justified in so finding. No certain rule vim be laid down as to what is an liouest transaction, or the opposite. Every case must stand on its own footing, and the Court or jury must consider whether, having regard to all the circumstances, the transaction was a fair one, and was intended to pass tho property for a good anil valuable consideration. />'>' drm. ■Jonei and Wife v. ;V«t<»>, 2 V. <(! B. r)27. Dt:i.ivi:KV. Ilfrlivt'ry and it4'<*«>pf:in4'4> ol Kood>« *iiib«t<'QU4>iil to tiiii«' UKiTi'd upon toi- d«>li%'«>ry WIm'ii «'aniioll»4' «««>! up U*» d«>fCII4-4' 411' ill r4>dll4*ti4»ll 4)1' 4l]tlliaK4'*>. See Assumpsit, {Addenda.) Mojiit v. fjtnt. Ol abandonnirnt 4»t ir4'*>pa*t*>. See Abandonment. l^ettei'M and ronvoi-««ati4»ii pi'<>vi4»iiM to l4>tt<>i'rontaiiiiii)r 4>oiilra4't Iiupr4»p4>i' i'4>c4>ptioii in 4>vid<*ii<*(> -War- miity 4»r r4>pi'4>«»4'iilati4»ii. Defendants who were mamifactuiers of steam engines and mill machinery, sent plaiutitf a pamphlet containing drawings of engines and mill machinery manuluctured by ]'2\)o F.VIDKM'K. r/I(W fiian. them, with tlic prices, and nnd of rivfulnr ^oiws f(»r whidi they were agt uIh. At foot of prico hst of tlnir rnginos it ua» Htatrd. "Our t'ligincs aro all wjirrantcd to work up let tho |io\vii .stilted, and to give cutiri buLnf.ioti.Mi if pi(.|,, ,K n)nna'4« r power cut-otV engines with tuhuhir hoiler. iron smoke pn)f and all irons complete, Jfcc, (stating pric« and conditio. ts as to payment and dtdivery,) to which defendants assriitil. The engine and nuiehinery having proved, as plain! ill alleged, defective, he brought an action to recover danui^^t s. and gave evidence of the letters of March and heceiiil t r 1S71. and (»f the convers;ition in tlu' summer (tf that yeai^ //./(M>. I(>r Il«'l4'ii«laiii<* iiHioii oi bi'iiiK •*ii4'li< a«liiii<»*>il»|«' aKsiii***t liiiii. Set' Justice of I'eace, {AiUlfiula.} iiirniinijluim I-!x}':irt\ rurchasers of liquor competent witnesses to prove sell- ing. Ihi'l. .4«.«.aullb>- liiiHbniMl on \%ir«>— Wifo a 4oni|M't4>iii imt-oii to iiiak<> iti<* roinplaiut. See Husband and \Vife, (^Addendu.) Ex imrtf Alfl. «'orporali<>ii 4»l %t. J4>liii FlllinK l>i «tre«>t an4l 4'i-tM'iiiiu f4'ii4-«> f:%idc*n<'e ol u«'||li|t<*N«'4' »>li<»iil«l l»4' l4'n lo Jury. .SVg Action on the Case, (Addaidn.) l*(itU»on v. Mmjor, (jtc, St. John. Aihlindii. FISHKlilHS. l.ii>l icir rnniiios it to work up to ion if pioi'i kly lintitT receiv'il ipt ot ii litt< r unts as to the [80 wrote liiiu ivv rt'Cfivt'd i.v I also, pliiintitY tn, in which tlu ill would cut a ,f(U'fi nthint> lis ' vour 10 hoist' on smukt! pipi anil comlitic.is tlants assfuttil. h\, as plaint it! icovor (lania}4t s. and l>t'Ci'nil't'V er of that ytai . in i'vid*'nc( :is Hi contract w.i-^ T'i, and (U'ftiid- lo warranty "i itilmi'oHioii ol lii<»iiiill) ol lMoili«>r ol l«>Niaiii\ T4««liiiii4>iiiiii-y lipOK'lll |M'l«.OH •I jumI rir<'iiiitf >oiil«l »»«' •<" '" tttHon V. iVi CJiinrh,2 P. <<; B. ITIK 'I'l <*|Hf».s .loiiii :iii4| ««4>\4>iiil ti«'«.|»si*.«.4><'. in» :il>:iiiiloiuii(>iir of joint i;«s. |»il*.«. |»|-OV«'«l, Si.r Now Trial, A lorl> \o r4>iiio«al Ol ionrliiim ol uoo4l«i Nominal «>ai4' i:it4'4i of. >'<•■ Trovrr, \.\'il )ili.\ Stiiitli 'iihl irilr V. 117///.'. Krualalioii an*! |»i ot«tf ioa ol l'i«.U<>ii<>«. i*ro\in<-ial ii:;lil i'*>. Tht! ^i-neral p jwcr of rc^ulatin;^ and protecting the liaheries in tins Province is in tin- Parliament of Canada, hut a licens<- h\- fh'- ^^inist.■l• of Marine and Fislieries to ti-^h in fresh water rivers, wiiich are not the property of the hotninioii. or in whi(di the soil is not in the Dominion, i-< illi 1,'al. \\ Ih re the lands on fresh water rivers have heen grant- ed, lie .xclusivf ritiht of fishing is in the riparian owner, :m I wh'-re they havi not heen granted, (with the exceptitui t land owned hy the Pominion (Joverninent) the right is . 1 tli erown for the lii-nefit of th" people ,)f Xow Rrunswi-k. The right ol" iishcry does not depend upon the owner- ship of the bed of the river, hu' i; the hank ; it depends u)Mni the lateral and not tho vertical contact of the water of the river. The titU; to the h 'd and waters of the North West Mirainichi where it rnns through lands granted lotlu; Nova Scotia and New Brunswick Laud (.-onipany, is in that 1292 .irSTlCE OK 1'1:A( K. ^.li/i/i Ihlil. Coinpaiiy with tlic oxct'ption of tlioHr phut'H vfhvrv tlio lands on tlu' river lia«l Ikcii previoQtl^- Kruutod. >/<.ff/ma» v. iCthntanh, ft (il., Haiisint v. li"lnrtMini, if roMVfyaiK'r lloiir^ly or imiiMnction. ,S>'r I>ct»d, (Aihltnda.) hnv ,lcm. Jomn v, \nerH. €'liarK«> **t Iriiiid iiiid«>r liiMiUeiii 4«-l. Sff Insolvent Act, [Aildrmhi.) Ill ?>»KA.\D k\n Mii'i:. An HHsault is none the lessla broiich of the peace because it is committed l»y the husband upon the person of bis own wife — and the wife is a compt'tent person to make the complaint. lU imrtf Ahrl ,-t ,»/.. 2 I', .f li. GOO. I.^FOKiVIATIOK. Wil«> x\ «-oinp«*l«'iii prrwon to iiiHk*' ii roiiiplHiiii agiaia«>t liin«tbMii«l for broach orih«' p«>a«'«*. .SV« Husband and Wife, [A or under t»e need not allege that tlie defendants have i^one into insolvency : Qiufr<\ Whether that bection is restricted in its application to per- sons whose estates are being admiuistored in Insolvency. hurry v. Uiuj„n, 2 l\ d Ii. Hi.'). JOIKT 0%V.'«KKM. IViiHUM* ol proprri> b) oii«* ioiiii o%vii4*r Whrn a<'ii«Mi maiuiaiiiablo. See Action at Law- — Negligence, lAddnida.) Dunrill' T. O'Jjiun. firllinii i»pirliuoMf* liquors on Kanday- -IJceniied tavrrit keeper— .lircvMNiiy ol proof of beinv— Adinin^ions of defendant Purr bawerw ol liquor ronip<'t«>Ht M iinetite lo prove «elllni:. In proceedings for the recovery of a penalty for selling' AiliUnda. MASTKU AND SiaiVANT. 12im iiplHiiil AgKiaM li(|Uor8 on Suiiduv contrary to thf provisions of HH Vic. ca^ . 71, it luuHt lie luadi! tu appear that tin- defendant is a licensed tavern keeper ; and where the defendant pleaded not guilty, hut admitted that he was a licensed tavern Iveeper, and the only other evidence of his being a licensed tavern kee|)er was that of a witness who stated that he knew where defendants licensed tavern was, itwas/a7(i, that this was sutlicient evidence of the tuct ; and that it was not improper for the magistrate to tak.' the defendant's iidmission as evidence ngainst him. The persons who pur- chase the li(|iior are competent witnesses to prove the sell- ing. Er jhirtf liiiinintjhiiiii, '2 /*. ((' li. 504. InliM'iiiiiiioii— Wil«' a 4>uiiip4'i«>iii |i«>i'*«oii to luiikr «>.whi- Iklaiiil ill 4*a«*«' ol a)»*iUiilt h> liii*il>aii(l ou her. Srf Hushand and Wife, {A(li«>nt iiiMifl- 4'Uli4»ii lo «»lli<*ri'. Sir Athdiivit, < Ailihiuhi.) lliirkr v. Chnkf. .11 IM-frr^t OUDf:K. % Jii«Ik«'**« «m«I«'|- can li«' mail*' a inl<* ol 4'uiii'l on pro- diM'liuii ol tlH' or«l4>i- \t itii 4'4»iiiiM'i% «>i|irnatiir<^, but 4»iiiy iliii'iiiK icrin* MrLer:! V. Joinrs, '1 /'. X- />'. VM. rif::\. ^4»t a|»pii4>al»l4> an ph'ii in trovor. Sec IMeadiut;. \'rrii(s v. Schojidd. ^4MTEK AND fiKKVAIMT. Injury to w«>r%'aiit Di'ulliol ina*»l4>r !!iiirvivnl «rR4!ii«»H — D4'4'laraii4»ii ali4>vinK 4!4»uira4'l. A declaration against executors of S., alleged that plaintifl' entered into the service of testator as a workman in his mill upon the terms and conditions, amongst others, that he ^(S.) should take proper means and precautions to prevent damage happening to him, and not to expose him to unreasonable and unnecessary risk or danger; that rj'M NKW TRIAL. A! fort, did no* -survive agaiusl the ioprus«ntaUv«.s wf dcC(.a">»d. //»/./, hy Wctniorc and DulV. 1. .1.. W . Mmi, .1.. ,/,>,s'. f.utinii), that as the declaration allfgrd in terras a contruo; and hrcach of it, it showed a cause n\ action whicii sur- vived aj^ainst the defi'iidants. ( 'inmllij v. Shirr.s ,i .il.^ fji'ditoii III ll'illi'iiii Shirm, dfctjascd. - /'. A /#'. I'tilfi. 1IOKI II %l>. Sit I-riti.-h Statutes, (Adl'inhn. \i:4;M4il\<' tiM iii:ill«'i-<> lu |iir.> ItiiKliii;; rlliMi \\ iit-n both (lait.jfj on t,h«' trial of a cause. !)y their ooui»sel agreed thnf the claims which thfy urru putting forward on imth sides should all Wh left to thf» jury witlioiit iinv »d)jecti()n h<'i'i^ ma do a-^ to tlu h'tj;al lialnlity upDii tiuch ilaims. and the jury lound for plaintitT: //-/', Thai ih fendant ctuild not afterwards movi- for a new trial on rii» ;.;round th.ut plaintiff failed to shew nnv cause of a'-tieii. l-ancll V. Snnth. '1 /'. .V //. \MK I'ri "•|»si«»o .8<»i:im:i'.iiaueo iiol |»l:iiiil) :i|>|><>:ii'iiiu («> hi i oii- liiH'<' H> «iiM' at I III li 4">|»i'<«<* |;« i<|i'iii'«- ol •ke|iai:ile ir«'*)iti>»» ILlh-cl t»l 'I'liiii- of «-l«'(.-|i4>ii — .liitt.'* « in\ey and riiii- naif^ the lines, after whicli sevenil distinct trespas-.c> W'l'e Atlth'iido.] NKW TUIAL. 1295 r> ItiiKiiiiU <>lifM i coinmitted l)y tlic otlu r (IcfiMidantH. in wliicli liowevor C. took no part. riaintilT Ixinf^ Ix'in^' rcijiiircMl to elect, stated fliiit li( would go lor the trespass ot entering on tlie land and running the lines, and th> eonscquences which w^uld follow Iheref'roni : and in addressing the jury he urged that (ht'endant ('. was liahlc tor the necessary eonseiiuences ot his Burvey, and tluit laintiff's land had h< tn (himagfd to the extent of l"iOU. The jury found a verdict for plaintilY for .S"25(i. {)n motion frr a new trial, the court granted the application, not heiug Hatisfied that the jury had confined the damages to the one act of t-nttring on the land and running the hnt s, or that they had not taken into consideration the suhseipient acts of tlic other defend,' nts cutting down the wood &c. — ini[>osing howi ver on defendant terma of pay- ment of costs. //«/«/ alstJ, that plaintitY hy giving evidence of separate IreypasHj's by some or one of defendants did not thereby abandon the joint trespass previously ])roved against all. It must be in the judge's discretion whether he will re- <|uire plaintiff's Counsel to ehct at close of his case, or at a later period of the trial, (iatinon v. Chapman, >'t ah, 2 y. .^ II. MO. Opinion «'\|ii-4><tl to jury. in ;iu action whire the queintion being tried is the com- I'etrucy of the testatrix to make a will, it is no misdiriction for tile judge to state as his opinion that the party contest- ing tlu' will has failed to establish that the testatrix was subject to del isions, [trovided the evidence relied on as sLewiug (itdugions, and the (piestion of sanity or insanity are left to the jurv lh>f d. llamn v. L'frtnr ,(■<•. St. Jaiiifn Chnnh, '1 P. .(• /;. 47'J. < iiiis<> lii«'«l oiil of il«« l«>i-iii <'<»«>l««. Wlure u C'uisf was tried out of its order in the absence i)f the tbfendant, on the statt-ment of the plaintitY's counsel that it was undefended, the Court granted a new trial with- out costs, on an altidavit of the defindant's attorney, that the iUfendant had a gc^^ i defence and intended to defend 1200 Pf.EADIN(;. Athlrinhi. til- act'or.. flrl.J hy W rtmorc and PutV, J. J.. Wddon. .]., dissentins. M-luti>nh v. Ifnniilton, *2 /'. \- /;, ('i.ll. Motion for a new tn,il on ii feigned issue lent down hy Supn lue Court m Kcjuity must l)o mmle l»efore a .hulge in F'Oiitv. f'inii-frrp V. }f inns' Mmhir fva. f'n. '2 /'. \- p, ^flfiiK*'!!*'**- >i4>l l4>ii«'iii|t «'%-iii<-4> 4*1 <'4»i-|>(»r:iiioH 4>v4>r4i*«iiiK |M»««4'i*«> 4-nr4'l4>*>««ly. >>' Action in the Case. (.!iiV4'yaii4'4> 4|ii4»»fioii f°4>i' jiii-> ]|*> l4> Ir»u*>a4-li«»ii h4>iiBtf l»4»ii» fl«l4* Kiulil 4il iiir> to find ti4-«-4»iuiidiiiK 4-ii4iiiii«>liiii4r^. Sft l>et'd, { .i'lihnifri,) Ihh' (Irm. Joiux v. AV/t/s. Trovri- <'lHiiii 4»l lit'ii for 4otunii*>*«i«»ii 4-liarK4>«., Ac. I*l<>n n4il fi'>i«4>i-HinK rlKht ni properly F«id4>ii«-<> of Ii4>ii M lien iiia> b4> Ki\'«>ii and lit what pl4'ji !i|»- I»li4-abl«-. To Ii declunition " for that deTendanta ponvertt-d to their own nse. or wron^iully deprived plaintilTs of the use and poK^erision of plaintitT's eorn." defendants pleadt (i that they were hrokers and couiiuisHion merchants, and that said corn was placed in their hands as such hrokt is and commission merchants hy plaintiffs for sale or retuin. ami defendants had necesHarily incurred •osts charges and exjtens* s in th<^ storing and safe custodj thereof whilst so in tiieir hands ; wherefore they claimed a Hen upon tht corn th' refor until such li»'n should he satistled, and that defenihinth refused to return said corn untit such costs. charges and expenses were paid which was Be gri* vance complained of; IIiUl, That tlie plea was cU-a^y had ; that it was applicahle to an action of detinue only, and was no answer to an action for wrongful conversion. AVrjiw v. Schnfuld, 2 /'. ii H. 485. ln«»oU4'nt %4<( <»l \nl^ f'harviOK rraii4l under ><*•■ i:iA Not uecessary to allege that def0nti«»nts have gout into insolvt-ncy. lUrrtf V. IhirtH, 2 /'. A Ii. 4r»5. hilrnl'i rUINCIPAL AN'I) A(iFAr T.. Wcldon. J.. je sent down by 'fore a .hi(lp;(' in Cn. '2 /'. A- P I 4'oi-|>or:ili4>u itdanii V. M«.tioii lor |iii> i> RiKlil of jiir> ■ii'4-iiiii^liiii<'r'». riir I V, \. *t;s. s 4-|lill'K***'< *<• ►rrl) K*ld«'iur . whtil pI«'J» J»l»- it8 converted to intiffh of tilt' use nts i»leadt(l tliat lants, and that \U'\\ l>rok< rs and e or return, antl U. charges ami hereof whilst so a Hen upon tli« itistH-d, and that ntit- Hindi I'osts. vas Ihe grivvan<« 1 ailv bad ; that .nly, and was no iHion. Xf'ruw V. il iindei- see l!i*^ ti^ have K'*)ne into liiiiiMelioii oMler \lleK"lioii lli>*( defi'iidiiiit l]il*.<>li |iro4iir4'«l Haiiit' -«vli4>tli4'r siifti4i4>iil. Srr Action (111 the case, {Aihlfinht.i C'llliiisv. Krert'tt, ■1 I>. .V /'. »•;<» '■'nil l>lM> lllisilljL; 4Mlf 4»l 4-4»ll(ra4l of 4'lll|»l4»> III4>lll l*r4>|M'l in4>4l4> 4»l 4leil>ill|; |||4> 4'«i««l4'll4 4' 4»f |||4> |4» u<*v l»} li-av4'i-*>ii»); Ih4* 4'iii|»l4»} 1114*111. N.' .\ctioii on case-- Nej^ii^ence, \Atlu ii4*r<>.lii|i ii4> aiisu 4>i- 10 a«-li,tii f4ir iiii«if4'a«tai«4-«> and iiii<>»ii«i«' 4»f'pi-o|»4'riy. Sff Action on cabe---Negli^ence, [Aii\ i4-tioii l»4>for4* 4'4'riiorui'i iHk4>n a\%Hy l*ro4'<'4>dinM'M 4»ii r4'vi4'u . Where there is a proper inlormation upon oath, before the I'olice maj^iHtrate of the Town of Portland, charging; an offence w.tliin his jurisdiction, the party desiring to impu^Mi the "orrectness of the magistrate's decision must proceed under 11 Vic. cap. 1*2, sec. 'M , lAcls of New ii'k. and 83 Vic. cap. 88, i.Xcts of Canada), the remedy by 't'ttiornri being taken away. Ex partr Abel et al., '2. 1\ .f /)'. GOO. FH44'TI< F. JiidK4>'M order 'VlakiiiK •>taiii4> a rnlc 4»f 4>4»iirl. A Judge's onk'r can be made a rule u( court on produc- tion of the order with counsel's signature, but only during ferm. Mcl.i'od V. Jamet, 2 /'. d H. iiVJ. pka<.'ti4;k t\ rr^qriTY, <'«»«f«t .4|>p4*nl Iroin Fquity <*4»urt- 1% Ii«*ili4>r «>aair nliould li«'. See Costs, (A(H^»dn.) Satfre v. Ilarrm. Motion lor tiew trial on a feigned issue sent down by Supreme Court in Equity must be made before a Judge in Equity. l\imnre» v. Minn* /;<«.('«., 1 I* <(• H. 054. PKI.'««'IPAI. A.>ll» A4ifr:>T. The question of agency is for the jury. When W, u student ttt law, was in the hab.t «)f receiving, whilst u student in the office of defendant, letters for def^ndan* 83 I -lUH TIIKSPASS. I A (III r II I, I . tiom thf noHt-otVu'o, liis ftgency after lie in adinittt-il an attorney is not necoHsarily rontinu(>(l, altliouf^h hv oociipic- liy pcriiiission of dofendant a portion of his otlicf, aiM had at'CosB to the defonchvnt's post-otlice box wlifucver ]i> wrishod — it l)oing no lonj^or hin duty to hrinp; to dofondan' his lottt-ra, and W. never having; iial |»iailltill llH% illtf IIK'IIIIK Ol kl|4!)U l4Mlti<' «>l c<»ii4lilioii<» 4>ii«t«»i-<»4>4l oil it \\i\y bill, plaiiilill boiiiitl h) lii«>iii. Sre Carrier, ^Aiidcmitt.' Arnnifronff v. nthcient justit'u-ution to olVn't-r. and he is not hound tf « \aniine the alVidavit atlaclu'«i to thi- writ. Ihirk' v. *»r. Joii\ « onvtov < 4»i \rii.. §*«»«% IT 1«» |»ii«»«> li) lii%% •»iil»|«*«'liiiK |»«>i-«*oii«» tl ill «'<«•»«> K4» r:kiiit<»l Im* l«*\i«'auaaK<'*» Joini mud •.«'%rral irr«.|»a«.». %% lu'wdoiiimiil a«> i(» Mlial lr«'Hpa«*«» ii atfiiiiiHt iiu<»t»aiii4Miiiii:il Mul«« i:il«>ct ol. Src Trover. {AdiUn,in.\ Smith uui l\if> v. \\'hit>\ [Addcii'io. Ailtlcnda,] UATIFICATION. 1299 iidinitt"*! ail ;)i iio oocupii's is orticf. luiil L wluMii'Vcr ln' p; to (U'fi'udani ■ authority to opeiUMl tln'iii mnot he nv,v\f ,ion of ii note, endant. r a C(>nv»'r8ioi) I\iinfn}> Tr.irn- kll4!)Ul4'«IU<* •»( bill. |»l:iiiilitl (i. /'. liiiilifiii. I its fact- is ;t s not Wound t" hrit. liiiik' V II.. |«» lo iiii|»i'i»oii- iiii<»l Im* I<'\i4-'tii 'I '''• il«*'«. inojHrn Lu \4MIIMial V. n'hit'' TKI40.. ISiKliI t«» houlii KiKlil of r«'|»l) M:j4>rlmeiil| by li(>ir«i-»t liaw A«liiiiNwloii ol ■i«>ii'sliip iiii«l anroKtor h4>iii|c »»«*i«<4'«l. On tlu' trial of an action of Kjcctment brought by the ln'ir at biw, whore defendant's Counsel admits th'^ heirship of the lessor of tlie plaintiff, and that liis ancestor died seised of the property souj^ht to be recovered, but set up a will in his (defendant's) favor, defendant is entitled to begin, and to have the general reply. Doe u of ;tr4>«»|»a«t<>« tim4> lor, ill «ii«»4*r4^t^on 4)1 Jii«l);4'. See New Trial, i .ld(h'tid(i.) Gaijuotiy. (Chapman. l.oTy an4J *>al4> 4»l \%if4>'«i |>r««|>4>rfy iin(l<>i- 4>X4>riitioii aiKiiiii*.! iiii*>l»aii«t "Sn t4Mi4*liiiiK 4>r r4'iii4»vai of K4»u«i«» from plaint iii'«t poM«»4><>tNioii. Where a SherilV having in his hands an execution agains' S. made a levy ui>on goods belotiging tt) the wife ol S. and wtMit through till' form of a sale, but took no possession of the property, which was neither removed or touched, the husband and wife afterwards brought an action ol trespass and trover against tlie Sheritf; Held that as th< goods were the wife's, the levy and sale did not affect her property, and as they were neither removed or touched there was neither trespass nor conversion. Smith and wit*- v. n'hitr, .S/a-n/A r. 2 /'. d />', 413. I.i4>n — I*l4'a 4»f'. See Pleading, (.Iddendn.) .\trinn v. Sckofiehi iiHJiir TO iii:4;ix, Wli4'r4> (l4>t4'ii4tiii4>iii Iik-k ritfltt lo b4*ffin°nu. <,('(• 'I'rml, i.ldd'Hd.i.) I toe d. lliuev v. Hector, &< sf, J (UWH Ch nir KiriFK'ATIOIV. Writ i%*>ii4'4i uitlMMit aiiiliority— MubMe4|U4>ui adoption aiiil ratifi4-ali4>ii. Sec Writ, {Adueadu.} Alhcrt Mininy Co., v. Spurr. .■1!(' ]'M)n winr. [Aiifltthlii rilii<*«»s 4»t nrllrl«* loi |>iirpo«»«' iriH'iiili>i|. \Vlitr«> a party onlcrn an asoortaiiiHl article, thcro is no im|tli»'(l warranty tliat it \h fit for tlic piTpuHc for which Ik* onltTcd it. The ruh' how«'V«>r is otherwise where tk«' artich' is not ascertftined ; and wh« r«' jihiinfifY ordered inaci inery from defendants; N'ld. I hat tlie hitter wer*- hound to supply such machinery as was r< as(niahlv tit for the jiurpose for which they knew it was intended. Momnr V. 77/» \V,it,Tnn* I''ti(iinfi ('.»., 1 /', ,( />'. .')()!•. WIT^I>«*. ^4-dl4'til %% iliir%H MiatliiK roii<*lii%i«>ii*t. \ medical witnosB may state the conclusions he han arrived at as to the capiwity oi tc-itiitriv to transact husi- nesB, and to runke an intellij^ent disposition of her property, from the circumstances known to him, without lirst statinj:; the facts upon which he hases his conclusions; per Fialer J., hut contra, per Weldon J., who held that all the facts and cirenraBtanceB must lirst he j^iven hy ihe witiit ss hefore he can state the conclusion he has drawn from tin ni so that the iury haviu}^ the facts hefore them can themselves «iu<> ol MllhoiiC uuihorli)' t oiillriiiatif»n li.> l»Mrf> huviaiK >io iiulhorliy tit limr ol I%»>iiIiik ««'>■ but hNvliiK MUbi»«>qu4'nl uuihorlfy. On an application made to aet aside the writ of sum mon8 in a cause on the ground that it had heen issued without authority, when the- act wan afterwards adopt* d and ratified by the parties tln^n ha\ .ig authority to do se but who hatT Juhtiticatiou, iA'ldtuilti.) TABLK OF CASKS. A. Abbot V. AblK)t, 4 All 87 108 Abbot V. l-'riiik U Ker 368 IfiS Abbot V. Lwlilfu Ber 33 37a Abfl V. I.i^iht G Alh'u i'2A .'.IH »(lu 1147 Abel V. Li»|.iirr " P (V » GO'. 1300 Vlbert ^liniij^; Co. In i»- K\ {'iirti^ (iill^ut 2 Pu>{ 29 1 hV, Ahsou V. Weidou 4 All 031 184 Allen V. Hank of N, Pk I I' ^ B 440 I00i> Alk'n E?. j.arto 2 All 424 1107 Allen V. FerjiUMon 1 1 Ian H'.l 480 Allen V. McKay I AH 30r. 298 Allen V. McNannhtou 1 .Vll 231 229 251 All.n V. Troubolm i All 121 1 177 Alleuaoh v. DesHniiay East T. 18«:, [M H40 Alexaudor v. Hartl 1 Iliin 101 1199 AlliuKham V Daniel Triii T 1871 004 AlliiiKliaui V. () .Malioiiey 1 I'li^ ;{20 313 AlliHon V. Kobiusou 2 I Ian 101 55 AlliHon V. Hobi::<^un 2 Vnu. Itl3 328 7o4 Allison V. HobiuHon Muli T 1871 904 AUiHon V. Smith t All 238 372 Alli»ou V. Smith I 1* A- 15 199 455 592 Alhfion V. C;entral Bank 4 All 270 205 Alward v. Hhaip 1 Han 2H0 391 808 870 Ames V. Carman East T 1H71 23 An.l^rson v. Allmon 3 AH 173 147 630 Andernon v. Faweett..... 2 P A B371 1040 Andren v. Dowdall Tnu T 1832 260 654 .VndrewH, Executon* of. v Clarke. . Ber 32 114 468 .\ndrewH, E..ocutorH of, \ HaiiHon . . 1 .\ll r)(n> 1175 AudrewH, Exeouton* oi \ McKfn/.ie..l All 204 75 AndreWH, Execut.jrM of, v. \VilMon..3 Kerr 86 127 863 472 930 Anslev V. Albert M.min« Co 5 All 391 r)G2 IMVl I'AI'.LK OF CASKS. ■ 'ftpp'- ■I .\iislt\ V. Loii^iirt> "i Kfir .'t'21 s:;.; AtiHlt'V V. lVt«TH -2 Korr 59:< IHf. 9«1 995» Aiish-y V. r«'t.-iH I All ;<.s» 8;M> h:\6 An-l)iliiiM. K\ pttrtr _' Ilhii M) ]2 Anusti-.'n>,' V. Hnnvu M All .iOS H.'i.'* AimHtioii^ V. Urmiil Tnmk Ry. ("....J I' a H tl5 \2Hi\ Ariiistr.)ii>< \. McC.ifTrey 1 Hum 617 Ml 'M'2 AiiHHtroiij; V. MoCutcliin 2 Pu« 'JSl -JT'J Arwm V. McChiri' KhsI T 1n71 Ill Ash V. Clurkc :» Kt«rr 187 12 m AtkiiiHon V. AtkitiMiu .'. All 271 t'.iy Atkiiim)ii \. DeMuoii,! '> All '(ej ♦'•5H liKi:» Alkjuh..! V. IJ.itli 5 All :»(•:. 1117 Atkiiihoii V, MfAtiliy I AH 213 5'<»> 11')! IJdti Atkinw)ii V. Mit<-h.ll (\ All ;»4'> 16ti l.ti» U'Jii Atkiuw.u V. I'ottH :. All 26 -J 1(12 AtkiiiKoii V. Siiiitli I All H<'9 til 6 AU'y.Gt^ii. V. HaiUii l Ki-n n;t 117'.' AU'y.-(}«'n. V. Hoyt-r (' Mh 7** 'HH AU"y.-(l«ii. V. -JO CHsks ^|llnt.s •_» All 157 1 1^*'' Att'y.-lteii V, 2<)iahk'* s| mth .i All KH 18& AU'y.-Gfii. V. 2.*M» l.l.lh Fish Her l\'J 71S ',•'.« lo|s Atty.-Gou. \. 1(H> kiiih p<.\vd«T 2 AH »»:< •«»•' Att'y.rifi'. Kx ruUtioru- Front v. Nicliuls :\ All 2»7 1177 Att'y. -Gt'ii V. I'fttUirHon C Mm 16 3() 7i;t ll.ip Avou Stout' Co. V Diitilmin 2 1' A' \i I6ti 1281 Ayre v. Main 6 All 516 '>'■' II. Habl.it . CowjHjrthwHitu H All '251 :\Ti «:< H8(> 'Jol inu backhouiM.' V. I'Hliuer Mil T 1828 '>»^- Hacoij V. M-mr 1 All fi«)4 l-Ml liaiU-y V. Bailey v. Ual.lvMi. liaiilvuii Ball'xh % JuhuH 1 AH 267 96ti Hazeu ;« Kerr 4 1H Ho'-' Mfl)uir«c 2 P A » 2«i I l.il 1171 V Briivdi'ii ;j Ki-rr l«y :-<•' V Hitchco. k 1 ll.iii aitJ 2^" . Biuu«.-y .t Kerr 440 -':»:: Hallocli V. limucy 1 All i:U -'i^'' Bant-nr Iiih C^) v. McLt'.ni 2 P A 11 37 «» T.'RI lo 1 1 Jlaiik .,f Hntmli N A v. Fislier I All «n'« '^"^ ^»"' Haukof Bntmh N A v. Fihhtti 2 All I -'"* Bank of Biiti4i N A v . McKlruv 2 I'uK lt>2 •'- ' '•*'•' bank ..f Hntmh N A v. Travih 2 A u :,4.\ " '" Bank Cbarlolt*.- lo v. WiUiaiui* 2 All 183 •.».'>« '^-1' Bunk of New BruiiHWtvk v. Crunk. . 1 Uau 228 '^^'' Bank of New BruuhMick Ex jiail*,'. . 1 Pu»{ 2«>."< '- 1 1 TAHLK OF CASKS. :U):\ \M\ WA '.*'■»!» 8;mi x:ib !•-' ll.vt I'iSI". ;lU '.U-J -JT-J Ill 12 HI c.iy ,., »'.5H liHi'i iin ,. ,A\:\t\ ]\i>\ 1J<'»; IGf. i.iit y-jr, 10-.' r>l») 117'.' ',H)l ". US'. _ 18SI 71H y-'i* i*"" 8»1» 1177 _, 7i;i u:io ' _ 1-281 '_ 7'.' ^ ....♦>;< H8(; 'Jol u*" f)8f. ^^^]^^^ 1:24 4 966 " ''." 1152 ■"/'".' .....UHl 1171 •.•207 * '' aai' -JlXA "Jit. " «y 7:»(i l'>" ITS i»«5 Jltt t.21 'Jlj u:<7 1^ '"" V2V H6»> ....!■.' Hunk i)t Ntnv liniiiH\vi»:k v. Kik'nvIi i; ;!'.» Hunk nf Niw HrniiHwick v. !\Iillican..4 All "i')! IImiiK lit Ncv\ Ilrni I. i->\\ t( W i>,'»;iiiN. •-' K«ii- tTfl II N<)ks.,:i I'ni; 71 .234 . 'MV> 900 liiink "f Novii Scoliii v. M<>ir< H.iiik 'it N'livii Si-otiii V. !Mu'k< n> 1 Man .W. 764 7:n I Ml 7-J'_' ,;{ K«'rr l«r) -2 12 .147 Hailovv V Cjiirkf Hnrlow V. Kmnfiii 2 Kerr 94 Ki (:{<< i'l'MS Hiirlnw V, Donnell 1 All \X\ Tiill s.s -^.-ij \0:\] Biiitl.tl V. (il(isj><.w Hit T 1H71 I'.k; Hiirtlftl V. Styinf?.t Iiimiiiry iHCiM lOHB liH 14'. Heiira-*1.\ V. Dibble 1 Kerr 24t'. 'i J-2 17U WW H.'iii «lslf\ V. Dibl.lf 2 K t>IT il .47^ Hfur.l-l'V V. Scovil . All «<; OS* HftinlsU-v V. SUipluMiHon 1 All ti;}] 20r) Hritttif Ex part.. '» All H77 H24 H, iitti.' V. (Jdibiit :{ All 1 '.HiO H.'ok r. Hiirluw 1 All 4ti.-. ;{87 :iHH Heck Ex ptii tr 2 Vim (>»'. 29:5 ")1H Boiikwith V. M.-Ph.liiu 2 Ail .'.01 A\> HiS lUvkwilli In If 5 All .3.'.H H»l \U;UA Katon 2 Kerr 217 241 Hf.bfll V. R.itur. .V,-. ,ii lr.',lfiu ton. ;< All '217 270 '2W> AM Mb l5.)oau In re 2 I'u^j 200 71'.> lU'll \ MotVat 2 P iV H l.'.l 770 H.ll V .MitV.it 2 r .V n 4(i(; ;!(;2 770 H. 11 Kx piirt.- I F A- n 8")". 841 lU-lv.-ii ▼ H.-lvt.a :< All 5MS 1020 H.-U.,i v iiaintn 2 Ilan 2ti 27 SO 7H2 92t) St.'phfnson ti .Ml '.l;} 374 .l..nfs .4 All H'.i7 70f. .I.iiu'.t T) All :U2 GI."> Moi->t" 2 Kt-rr t)24 17S 3,U Smith I P & 13 27 fU '••02 IM :! Peck -'Pun .110 ;{2y lltly.ii V H. T HiiUliiiimm G All M'i* 'jlb Kfm V Mitoli. 11 2 All AHO 2«'2 1124 HiTlt.ii V Bniwn Triu T 1«H1 uvm) lU'rU>n V. Cciitrai Bauk 6 All -193 -jin 1171 IV'rt.in V. Tifrui-y C, All '2iiiitn 2 All »."4) 1H2 BfttH ▼. Johnhtiui Triu T 1«.H2 l(»3() IU»tt8 ▼. McCtowau 1 Vim l-'i-'i 'M4 '26o H«-ttH T. Vi'iuiiiiK 1 Vxm 2«17 (122 H«'ttH V. V«'iiniiJ« Ka^t T 1H7:» r.iH Bi^jM \ . KiHjh'H Triu T 1h;{4 iju; Iliroh V. I'.TkiiiK 'i Vim :I27 S«'e Krrata Biriiiinf:lmin Kx jiartc 'i P A H '»«.') 12".<.1 IliHliop V. Cioff fi All ;W.( iMi a r it B .T2H 17.S Bihhoj) V. UohinHoii 1 Hhii M ll.t :>\u I2Ho Black ft al ▼. Kish Bit Hi ;»4;( BlH*k V Ha/tn Hil T IH71 vu BlfuknltH' V. Nick«rH<.n | K«-it r>'2.i 11(5 BliM kMl«i' V. Ht .Idhu Wat«'r Co . . 1 All «',3'.> TJ.'.O Blair V. AlUf .« All «.» IT Blair V. Ariuour ;{ Kt-rr .'Ml -117 Bl»ir V. HopkiiiH 1 K«rr .'«4() H:5 Blair v. H(il>iiiH<>ii M Ki-rr is? 2 U BoltoiiliouM' V. Bla«>k Kasi T I^T'J :<'<<■■ Boltonlioiu*- III vi' Kv ptiiti- Miluttr . . 'A Vim 'M\ ill BolU'iihotiM- V. Miliu'i :j l*ii>> C,\iO Ill Bfmneli V Ai-kwriiiaii Mioh T 1H.HI l*" Borihii V. Pn.Tiiuia! Iiih Co 2 V S: U AA\ 7.'..< BotMfnnl V. B«(thfr>nl 6 All l.'>8 1257 Botnford ▼. Crane Eaht T 1873 Vi'.t BotHford ?. Crane I I' A » 1.-.4 • ''S^ rt<)thfi>r .Ml -iH 52H ButHfonl V. H.ii.kMi^ni I All olfi H-'^' B-.thford T. «i'»n« fi AH 1 1« '"S- »owf« T 8ntlurlai)d *2 Kerr 1 I Hi 7f)'J Or. 'XVJ Bowman v. Atoiv 3 Ki-n LM>6 587 "3^ IJowniaii \ . Kt-nufdy I All &11 -f"* Bowman \. McLauKhliu 1 K.ur 21U 240 W5 10(>! Boyoe v. Pittafield 4 All 441! '^^'■^ Boyuf T. ElhU'U 5 All ItiJ ^3.) Bn»{tou V. IIoluieH 3 Ki^r 74 Cy'^ Briulbury v. Bail^t* 1 AU 427 690 2^4 851 l••* T.W 1257 .Vi'J ;.3H 52H 1 l.V> 1(I9-.' iHi 7tv.t y:i:> '.•;<'.» M34 26'* ..'240 wr. lO)J 33 y33 '"'. 6y« . ..244 S5l l"58 56 1^7 " \ 344 ..... •••J^l 1'"^ ( ( 77 .77 Uratiiifii V. I.favitt 1 All TM) HraiiDcii T. WilluiuiM 1 All'J'Jl nr.iiitlcld r. Hih1i(.|. uiul othon* .. . . Bor H'.» 1201 Hn>ckciiri(l>,'f v Wo^lnur 3 All 303 H43 Mrwii V. Klkiii 4 Ail H7 '.V23 Hn'wiiij{ V. Borryniai) '2 V\\^ lir> r.ir, HrtM'Zf Ex partt- 3 .Ml 3'.l() Xi:,. Mr»'i.7,t< T. Stoikfi.itl 3 All .tj HrrTier t. (Jaiionn 4 All l*nt;j;s \ . Mi'Hndf 1 I* . |{r3 ■own V. Hi Brown ▼. I Hrown \ . ( Brown V. 1 Biiiwii \ . Brown V. B rowii V, row II V B Hrown \. Brown v. T B rown V '1 Brown V. T rvhon V B Buoh aimn Bui'kHtatT Bn^{l)« L'avlor ? "Iioiujmoii 'reiiholin .... 4 -1 Iliiinilton h V l'fvt»'rM 1^ k . I )ottn 'J McDonald 2 Cnadv 2 litti'din^ S KlIlL' ... - H . P.M.r . . .1 Bui'i^oyue Motlitt . . . .5 |« ilen •i \'ilt-« 1 s 1 leH I- 'larke 2 'ribncr 3 utherlaud 1 «-. Watts . . 2 .•. Wutti* . ..1 All All it-r 1 44 -209 41 V B 6ii3 .... 1 •.".' l.'.n I'.Otl 0'-^ '.t(»G 102 t B fil'i Dij liHi IB r IH71 123 ir 369 « Hit') '••'•> 101 lOH - 3»'.3 Jl •270 9.' Oti SI All 121 l"'.' 1(W IMH All '249 3.-)] 10.1 ion •J7<> '.MV.t Kerr 311 ti97 Bun 42 •"" • ••■''•- 59-2 'tl.'. r21tl K. IG7 Kcir ;i'24 , I'liC >W Bvr 3 13 All All la^ S(»l r til .... 2.'>2 IJ6H r •2^J8 '.X)H T lf<71 ... 714 2.VJ B l-")l Ifi9 30i 1055 r20 13 101 109 97H 808 ICiG . .120 .!«:{ 3tU ;J4.^ T 1H71 34.'i B 652 l^iSl 6.'i2 587 614 1- l(5C, , 114 r 377 ^9 2l(; 971 97C 707 IMAGE EVALUATION TEST TARGET (MT-3) ^ 1.0 I.I lis tii ■** 1,22 „ Hi « ... I 11-25 i u 1.6 fi" /; ^ / Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 873-4503 iV iV L1>^ <^ lV 6"^ I/.. <^ i8or, r\IU.F, OF (ASKS. Bunilitini V. \Vl>iU' 'i Kerr .*>7 1 iJid \\'>\ llui 11^ V. BnniH 4 All 22'.' IM'.t HiiniH \. ('liiipiiiiKi :» K«Ti 192 :{."i*i Mur|>«tt V Ctirviil A Pn,: 1 1 1 ,.'.t;i .-.TS CJR i;j'.' 1 Hi; BurjM'K \ . Citrvill H I'm: iW, J »"2 T".? Hiirn'll V. .Ihiiii's ;< All '>'.•'• Tftl lluBtcn \'.\ imrlf •_' A ir,M 1 'll't 'if^l liuhU'ii V. Howill I All r.«m :<77 107.' llHf, B»Ht.'ii V Klhh r, All •.'; 47(1 llynii' K* |>»rti- . . . .• 2 Pu« I*.'.* 121 1 17J Bvroii V. StiinpHoii 1 I* A H iVAl 1 V> Byr«>n v BhIhou u FUtfu •? P A K .VM\ IW <•. CahlU V ( jthill 2 P A H VAX 12HJ ('»iaw..il V. IJudil'T 2 All r,lt; 181 ("ajawfll K.x parte H All 3'.M "^l"- Cal.iw*.!! V. W imhIow 2 All 'AYA 20 -i:.^ . Al.lwt.ll V. K.Mtlj .•) All .V.H) y:« 1117 ral.iiuiiiiiii Miiiiinj Co. T. niit{ht. . . .r. AU '.M'l h:i7 CanK.Mn Kx «.Hrt.- i All 4.".4 lH«t i:n •«»<• ■"'-' <'«.l..in'i \. (•..IpHtK ' All ;W2 2Vi CailifT V KolxTtHiiii HtT 342 'iT Chiliff V WiU.,„ Brr l\i 12l(' Caniplx-ll \ FlfwolUuK 2 I'in{ 403 *V' Citm|.».ell V (iilU'rt .^ All I2<> 21 •. f.l'.t C'»ni|iU-ll V Hf.'.Hn H.T 72 2.'>7 4»:i Campb.U n Joiu-h I I' A H «.">« '• t;»m|>l"ll N Lnwileii 1 All VA"^ >'»■-''< ( *>n|.»H-ll \ M.mm.p ( Ms 1.V4 2HI ll>»'.« CampU'll V. T.mI.1 H Ktrr 171 '-'» "" iaiiipU-ll V. T.Kia I AU IW I'l'' Cani|.lK.ll V. WhffUr 1 Una Jfi'J •';*•"• •'•'■- (•»rn|.»K.ll V WilHon Her HM KW J«M> J2H 'frfi (•|tii..rr..i> V. li.-urUlev 2 Kt-rr .V.W 267 'Ul '.itW ( ;iiiu»T..n X C..1IIK-11 .4 All »'JH "'■'' < ■am.-ion v . Duinvill,. 1 P A B 647 «;« '•:'-' 1 "'' ( -anLTo.. Kx pHrt.- 1 Hhm HmC, 2'.tN tW L'aiii<ii \ Ktt\t« -4 All III (aiiby V. Wii^ht 1 P A- 1' l''» ('aniiaii v McI.chkI 2 lUii M\ Cttriiuiii X Mutt ;j K»'ti 1.41 l!ariiiMii V WiIhoii ... I'mi T IH«4 Carnck v Atkiuiwn .1 All .'41 5 I" l'^ ^i^^ Carrick v McL©.kI 5 All .Vi7 '"'' {•arrival. %. Andrew. 1 All Ih5 "*' '••*' Ca«»o.. . «ii'lii' 6Alii44 cJyO liOJ 4.i<> 2;u 122H .4H« (»o «.Vi "MM TAI5LE OK ( ASES. 1807 ♦»i«i '.fji '.ii'.i .... ■I'l ' :."« tvifi fiiv il'W 1 1-2 T.'.T 7{»1 'i?.'. •i'.t'i :n7 107-' n:i''- HO*.! H.-) 470 l-.'l 117-.> . . n> iw r.>HL' IHl Hi.-, 'M -J.^H «t;u HIT ..H:t7 . ..iH«» i;m :mxi :mi-' -JV' " «7 riln 'V. .' Hl-J '21.'. fil'.i -rH t»:i .17 102N 'JHl UVt'.i ' 'il IU> \ If.:. c,M\ \r2-i .lo;> nu> i-.'H '.t'Mi 257 '.»-*l '"■'' l(i.-,l H3 5W2 lli'T 'i\m tw.' " ] " " " l.'.r.2 .<70 <.(2.j ('arviUe v. McLeo.! i All .H.'Pi 171 CarvilK v. St. .loliit In;,. ('.. ;i All VM 1025 ( 'urviili 1-; X jiitrto 1 I'u^ j2",' 12H l.'anc- In w Kx parti' NHpior 2 Vu^ MM) .... 72it ViiMi V. I'aliner 2 Hun 1h:1 1U<»3 Cawl V Kirk » All r,r.i 214 Caujjlit V \ . liiiiiiiti .'» .\11 ;{'.i'.i GIO H45 I'outral Mitiik v .McKuiu ."i .Vll :{-.>l» 651 ('atii|>i.>ii V L.inK Mil T \»M £73 (IiiiikIUm \ IJeikwith |l.i '2M 230 (.'liamlk'i K\ part*' !{«• Taylur 1 I'unit.M 2'.t7 Charh.ttf C... Hank \ . lUiiv .'.All .ViU Str.2 ■. All f.27 8.14 .•_' .\11 IKH 2'.« 72'.t f. All :{'JH 7:>l W3 '.tjN . I All .-.tw; .t.V.l , Eiiht T 1H7I t;7.'. ('liarluttf ( ' 11 City of Fr«'»U'rict.)ii v. Milliiiun .') .Vll •">71 *'<>**'> (Jity of Krtdfru.tou v. Liu-uh .< All 5H ; 23M f.H7 ( larko V. Ahh 3 Kerr 211 237 Clarke v. The Si'ottihh Imperial Iii-«. Co J P A B 2 K) 7o3 Clarke v. Laureuci* t Kerr I'rl '.('.>7 Clarke v. Rohiunon Her >«> '.»1K Clarke v.Caiiey »i All H7 11*21 Clarke v HaixlinK I I' A H I'.t.l 10(17 1(»1H 1217 ( 'lark.' V. I.ake -* l'u« 3ho 31(2 CleineutHOM V. ("o()i:.l)eH Kant '1' 1^71 o44 CleiuentHt.n V. ('oo|M r Uict inl.er IHC.M l(l7H Clemen tH<.n v. Ilaniinoiitl Kant T 1H71 711 ( litT V. (.aunter -' Kerr »'.t3 1 123 Clifford K.\ parte 3 All HI «H' Clowun V. StouUar i Kerr «27 101.3 ( "lowmr V. Saiiaiel - l'n»4 "ix ">♦>■"> ( -luff K\ parUi Mich T HI*". -'W Coaten V. .MeAullay 1 All 521 lOl'.t 1227 Coburn V. Taylor 2 Kerr 120 %1 ('oftin V . Mai>h 3 Kerr 427 ">4 1 6.-).-| Cockraue v. Caie 3 V»^ 224 73 211) Cole K\ parte ".i All .Vl'.i «3,s Col*. V. Maxwell 3 All 1H3 701 ( ouw.ll V I'miU i'nu T 1^3l HOJ 1201 1B08 TABLE OF CASES. * I CollE^ paite » Ail 48 80y HIT (.'olhuii V. (3KrmiobMtl May 186« ur,H I oU»u« V. Buylw 4 All oH'i 'j'jj (^olliUh V. (alur U All 103 'i4a ColhuH \ LNwntt 2 P A B A(>\) Vinu Colbiih \ ilikll tk Fairwf»th»i 'i liau yO 12V> I'-olUuK V. KirWu 4 All 506 1(H>7 I'oUiiiH \ McCartiiy 3 All o iV H 481 o'l (il tlH 7Jl tV)luiut)i»u Ian. ik>. K\ |><»rto Ilil T 1871 li (.'uniiiifu'iul Blink \ .ttiii» Iu«i Co. .."> All Ul H'i ^ uiuuittictiil U»iik V Kurupoan Aim*. Co i ll»ii ilw '.nt.i C'oiuuierviirJ Itauk v KarIUU>cioih1 Itmik \ KleiuiUK 1 I*u^ ail. . . -"'J Coiutueix-iftl httuk \ I'ncf llawt T 1871 \ii'i Coinmen-ml Hauk %. Pncf 1 I'ujj '.»? 381 ('•iiiiiiu-rciiii Bank v. SU'|>lu;ii«x.ii. Hi! T 1872 15-' " -Miu.tTcial lUnk v. Willistoii 2 Kirr .'•(»" lO'JI ^^mutfrcial bank \ Williatou 1 llaii 2h;1 2'.M Uoudell V. I'ruc 1 Haii ASA i - Coml.-ii \. liaiik of B N. A Tim T 1870 24b I ouuvU . . Half) 4 Ail 6.(0 Wnt I'jo Couucll V . lUiuiiiouii 2 .Vll 120 8-<' 1 ltH)<'> (Hiuuell \. Hmith .* Kerr 483 W-i Cuuuor V. Wny17 171 172 '.t7'.t (ouuuk V. Wilmm .'« Kerr llO ;<> CounoUy V. Shivea 2 I' A B tW> IJ'ti Cuuiiorn V. McLiu;>rau 2 Ki-rr I U*> l-'' '•*'• C*iok E.X |.aru- 4 All .'KXi '^W I'^'O Couiiit>*«;< 844 1224 CooiuU*«t V. Hiillieway i» Kt«rr iV.i'2 lU-' Copi* V. lU^-wl a P»K 527 27 88:) '.MM Coram >. Wheteu 4 All 2y.< lO'.t .Vi4 Cor»ui V. Mayor, Ac. 8t. Johu 1 Hau 441 »**'•• Corbet V. McCrackeu 2 F & B 137 "<* Cormier v. Thibid«»au i Kerr 297 ■*"■' Coater Ex parte 3 AH 3411 '*71 (k>thr«u T. Kiuuear 4 All 261 '*' Cotter V. BrowueU 1 Pu« 366 156 l'J3 l\.ttert.U V. UatUeld Thu T 1831 •'•'-' TAHI.K OF CASKS. IHOl^ (KW Hl7 luTrt 'i'il -iU I'iMn vm l(M'>T 7'J» 23 liU7 . :,i til dS 721 l-^ 82 "J'.Ci 7ii»» •."•» m 152 1021 221 .l-t / 24b WW TiK) tiM GV.t '.lO'.l 'Jl" l(H)t> ".. :)82 UA 171 472 '.t7'.« H> l.x.ti 46 »;v.t '.. '»rj 1270 " 3U m i«7 rm H4t 1224 1U.'> ' -j; rtrtf) •.»!:< lO*.! .V>4 " ' ' ;w',« " " " hO* -MVi ■■"_\\\".'". 874 ■""'.' 147 '"""/ ......166 l'J3 ....ti'.l2 (Ji>l toil V, Stack 2 I'lit; lljl 5^ Cotton V. Stiu-k :! Tug 211 121 , If.'.t tH'.{ V. Chi»holm 1 Puk218 898 Crai>{ V. (Jlazier I P A- B I 1026 ( raiK V. GlazitT 1 P A- B .IP.' 1008 CraiK V. ( JiUtrHon 2 All 207 1214 CraiH- V. AdainH 4 All 'i^ lloO (•ran.- v. Ayro 2 All .')77 «11.{ G35 Craiu' V. HolteiilioUHo 2 Kerr "iMl 1097 (JraiH- V. Cazeiiovu 4 All ,')78 '>A »40 CraiJi' V. Clarke HilT 1H2H SHti tVjn G49 Craiir \, CiiiiHrii .< Kurr 407 Mlt) 7»»8 Crane V. HutcluiiHou A Kt-rr 461 1190 Crnne v. (JoiKliiu- 4 All ;S71 1175 Criiue V. Tavlor 2 Kerr 171 1(J66 t rawford v Willox 1 All ti;U 671 Trawley v. WjIkod 1 All 704 718 998 1024 Cr.iuuer v. Whipple ."» All 27.J 1198 Cn.-lmau v. AtkiUHou ;{ All l.'.o 1200 Cntker V. IlwtchiuKou ■'» All 1H9 550^ CrockfonI \. Kqnitablf Iiih. <...'. All 6.')1 :;tiM j.-.j Hi'. U>t> 7;{5 Oi'ckfonl \. London, Ac , in'^ < <>. .'> All IVJ. . 725 Cr.okNliank v. McFarlane »t iil. ..2AII VII rtol »i02 f.fi? »>rt8 920 Ci..okBhank \. McFailane H at < All 18 :r»l 3»>0 CnokHliank V. \Vhit«« 1 K.rr 367 179 CriNtkill V. Wortnian ■"•All ♦".48 829 Cr.'-cur V. Pli.nux Ins. Co 2 IlHn 2iK» 1S7 716 919 Ciidlift V. Church St MartiiiK 2Pu»{8... 361362 Cnllfn V. VtwH 2 Pu« Ull 13 ( -unari % . Fra/...r Mich T 18.. I 1069 ('•Mu.r,l \ To/.r 2 Kori 36«-> 217 .610 661 655 979 . ...117C ( unhlTi V. Morrhouw 2 Kerr 311 CiinlitTe V. MorthoUHC' 2 Kerr 347 Cunnard n. Pluuiu.or 2 Korr 418 l^iuininnhain ^ i'olhx'k I Kerr ;{24 Cunningham v. ScoiiUar 4 All IWo 206 388 Curraii v. H«ek\vith •» All ItOa 11.J3 Curran v. (Iilnior 2 All 87 787 (.•urran v. Morgan 3 "»K' * Currh r v. Crt>Hhv 1 P A II 4C.» .V.** lino MILK OF CASKS. (iiriA Orr AtiniiniKtrntorH »!U5.. v. llil'J*r«l Bit 1H« mr, ( 'iirry % . I.HWMiti :i Vim '^^^ liiCi <'nhliii>n V. (kxlilanl M All .iH') l.'iH OTO ("iihlimii \. Ooniuii Mu'li T IM?',^ ".»»(► CiihIiiiiii: v. (]i All '>'iA Ct'2 2'''2 Cushnm V. lU)lH'rtit *. AH ITM* -.'^'J ('iihIiiiihu v. Ii4iiulou (1 Liv<>r)KMi| Iiih. Co .'• All ■-'Ml 7;t.'. 7-.1 (?yr V. Ilnrtt i Vu^ 71 'fju C'yr V. SaulHooii 2 All Ml -.'7 IT^i Dull* > K.v i.«rt^' 1 All J24 .*i7'> UnV.f 1 All t:<6 i^.tl 3(14 ' V. MarkH I»«r :M»i U 2^2 «>n1 Diilt. I V, lifinultoii niati l',»*i lUKV I )teiii> ^ Hr«.iiiv r. All 'i-ja i-iH Daiiu i V. JoutK 2 I'li^' •i'.HI 7r» Dam ill*' Ex pmt.- 1 P A B H'il l-ify l>avi i-oii V. AisiiH Hii .'» All 'i8i» ('i2l I )(»vi Im.ii > Kiu>{ 2 l'u>» .". 5'it;.. 27 1 7.'.7 "*,<;, (ul I 1 1 :i2 IJm\ i.i-..ii \ , hi!i« A Vim :{iX» ■'»^'' •*••'•' •»•' • 11 J'>- DHVjdHiiu V. OConiiell 2 I'ujr «>8» ■»< Vi Dhm- v. ("IiuM> 2 Kt-rr :V.tr. 217 I)ii\i- V. Lt'HVitt 2 KftT .■n»7 -.'17 l)liM^ V CuhIiiiiK :> All ;WH «i»2 432 1111 D^lVl^ V. HKVilf i» M Hollh. .Iiiii IWM 12M Diivi^ V. Uiiwuouj « All ;U7 12U I )it\ V. U.itlu'w»y . . ". All :iHH '«'.♦«) Hi-avcr V Hradl.y i K»rr UO HSrt l)rinill V »-« will V. ilarttiinl luxurHncr ( u, . . 4 All .t tl 97. mpi*t4 r V St< w»rt 1 K. rr 103 U»i4 I).,, dcm Fwil* V. Fob lAll'.H'.. '-'•I* Dm- dein 1 nub v. K*n 1 All tiH.J :nr< I>«Minii««m V r*>lor it All ai.'t f)7'' iMnbriiMty v llalilwiu S Kc-rr 37'.' I7<; Ihttbriiuiv V (. «iimuiMMU>U( TD t>f K. iV N. A. \{'y J llmi 4H 771 I)fMl)riMty \ (il» iKTiMMi 1 llati 106 . . '•'•'7 |>.'»l.ri.'*y V Liltli- 6 All IVja 1132 i)f>HbriHay V hivinKetouf .'. All 241) 81 7.tl 12(it I),-Hl.ri»«y V MiMkiiy I IIhu l.-W 1/7 Di'HhviMay v. M. I.umI I llan 122 '"<2 IK-Klrinay v. M« I'h. liu All Ml n»''' l>.K».rin»y V. M«xMny 2 \U 't3 Il'i4 :)fhl*ri«ay V. Mooiiey ■'» All I 7:U t! t TAliLE or CASES. IHIt in:. v^-i l.'iS <.»T(> '.MO tl'2 -JVi -JM-J .7;r. 7M ^ _ '.»•»♦ 27 ■i7'i ru"' n»>;< .x.tl 3C.4 U 2X'2 IV^I lUKV a-iH 7i"» 7'if> ('.24 7:,7 H.4.1 iwll II'--' .,>•• :»'.t:t Ml 111') ".4 .'V 217 -.'17 ii'i U •■! , IVi.'.l 1-211 H'Mi HM\ '.to:. »7li wn .".irt I * • • • • • • 54 r.< 67'' 171. 771 •V.t7 uaa . ..Hi I'M 13(tl 1*7 '.Wl \\9:> .1124 7:n '•t«l.iiMi> V, Stoiuliiiiui I Vll 5'J7 , 117»» >eHiih)ii,l V. V.MiiniiUH :; Kerr 71 iHi »«vfl.«.r V. Austin ;» Puu ,>5 7l'J )fv.l)ei V. Aii.lrt'^s ■_' Kt^rrftOJ 1258 I2'«'.t 12»>0 )«'VfiKT V, Aii.lrows :; All :W3 t»7(» Vnolmr v. Ainlrown j Vll (12(» IITH )«»v.lior V. Brittaiii » All AM) 451 >evfl.«M V. (\)llini. 11,1 T IHM rt'iO )uv»(ber v. Oultou 2 l* A- B :U;J 'i-'> ) velmr V. Piiliiifi- 2 l*n« 2t»7 '■U'< f).5V«fl)or V. H.M)p. A |»iij. 2Uri . . .434 oCti >over V. Corcoran :i Vll 338 30^ '••vfr V. Morn- I Vun 270 71"» ).>vec V. Myishiiill 3 All 3.'il '>•')« 122f. ).'Tti3 3i'>4 lll'.> )ioki.- \. (iiuplK'll .....CMnU 1V-, 203 7o:J >i«"ki>' \. LawHou 2 Piii; hi 70'.» ll7't )i'-k^.iii K\ pftito 3 Pui; 327 116 >ein.»ck V. Manno Atw. Co 3 Ken (i.)4 740 1241 )«iii.K;k V. Mariiio Ass Co I All 3'.W Mi 7tl) '.)2l )iu»^lf \ AKr'l [«H. Co .....3 Pun 80 ♦'•Oti )inKl«' \ .Sti.kuoy Mu-h T 1830 114." )oane v, Doam. 1 P .V B 339 '■»38 )(>ck V JohiiHtori 2 K.ur 3l'.>. 12 ■.(52 )ock V R.-tuuHou 1 Hrtu 27'.» 2(»5 ^w V. Cahill 2 All «.'»0 417 >••" V l)<)h»ou 2 All I IC. 45«) 531. 182 361 132 lOll )•«• V. Kstabrooks 1 Ki rr ll'.> 514 O.H. .Itiin AUtiu V. Blanche -i All ISO 43!> lOu 27« " •' Vndrews v. Hotilye 3 K«rr 134 ... 86 " •• AiuhvwH V. Taylor r, All HJ 4H.-. 831 •' '■ AmiHlronn v. Brid^eH. ... 1 llaii l'.»0 551 '• Barlow v. HattieKI 1 Korr 117 4'.»5 5M 632 • • Barlow v. flatfiel.l 2 Kerr 122 457 •• •• Baxter v. Baxter 2 All 377 8*6 8'Jl •»27 Bi«t«r V.Baxter ! .Vll 332 -50 464 5.-)3 •' •• Bikxter V. Daxier 3 .Vll 306 '.H»7 •' ' Baxter V. Baxter I All 131 450 5i».-> 858 • " B.atty V. K6ill.»r 2 Kerr 613 1269 H.^ilty V. Itof 2 Kerr 107 508 It.ldinjj V. B.l.liiii; 2 Kerr 531 8.50 1812 TAHLi: OF (ASKS. ' *■ i ..'if DcM'dtm IMdun: v. n«lli>tt .1 Ki-rr 35M n; H« vi»riil»{.' V HiMul«(rH.>ii . .'J I'm; l»5 f^j^ •• ■ Ulair V ("liiioi' 3 All '.(H 4'i'J M7 10'203 4M :,T> •' • BlinH V. Knti-y r« All l«.t .-,!» ft7i •• •' Botufoni V. Tj Miui >'.» :.U •' •• B )v».'ii \ HiitxTtHon .*> All IHI slf, •• •• ltndt{.-, V (^iiint Kaxt T H2H 44;, •■ " Hr)-Mnt V. ( 'iiniini J Korr U»3 HKt> " " Ityrnon V Kl...t . . 1 I'ti^; :.».{ KtTit •' •• Hunihaiu V WiittH 'J K.-n Ml 4»r. ftfia " • hiirDhati) \ Wi-ttH :{Kt-.' rt'JS " " <;.i0 . . . ."id." 86;i llf7 •■ ' • < ule V. IIiir|H)r .iiul wifi< . . IJi-r ■-'89 K.V» • •• < r*ny V. W'r>' *i All 3 11 "fJ I »iuin V. Pitt 1 .\11 <8.'j X9 557 " • l>tfh HarruK \ White I Km :.»'> 4lM Ml "'•J •• •• l»ev«U.r V. Mruwn .1 All 4;i'J :>i9 H'M " *• i>«4ve)M-r V. DivoIkt 2 Vim JI7 ••'^ " •• l>oii»t{l><>^ ^ Ml (iiirrit'lw . . 1 I'uK "i"" 1 '•' ' " •■ l>jffne V. Himimijii :i Korr 191 5tj6 711 •• " I hahrow V. F»'U H«-rr 2H4 *"^ •• •• IKjwhijn V. Poarnon 3 Kerr 1.H5 4h» «(.. '• •• Duncan \ Chriatopher. . . . I'err 83 911 " • Dauu V. Fitt 1 All .JH.') »4-< •• •• Katou V. Thorn i)H.)0 4 All 461 •'•>*■' " " Katun V. Thompaon i All oM '• ' • •• •■ K.lnet V. D.iwney 1 Pu*} 3J1 *^- •• " KdK.t V. rttllea 1 Kurr ;J3H 44*' ^•'" •* •• Kt.U \ . Oaruet J Kerr .»35 . . S'*'^ • •• Blatou V, TLompa«>n 4 All 483 464 5«J<) 84;. *« •• lU«Ul>i.H)ka V. Hbrria .. ..'i All 4'i .»:.i II ' TAliLK Oh' CASKS. 1818 417 6CM i'i'2 '.mi 102(i ViO :.7J .J19 f)71 Hfil HiVi 11 M7 :.n , H4t. ...14."» ssy 1(>6I I»r, 8fla HhT lit: 8M 8C ll.-.T II.'. 5711 Jtil' 54 . »57 851 8:.:< 8;u .449 571 li»-.'U o(t:. rt'Ji" 17 » 17;! :m, n-2 . I.VJ .VJX 91.' .."lO." 8t);i ii"? H.V> 7i-.' f<9 557 ..41H 'lOl x'.j :.19 H'.tl Iti7 I.Vl 5o6 711 a'»« 1H» 6 1.. 911 »4-< :,&i 511 902 440 5'J7 S.'K) ..1A4 59<) 84 o 9:.i IK>« .1)111 KahUbiookM v. Hum P*"'«^'y« I Han 104 906 I' •• i^ .Ills V. F.'u 6 All :m H-l -,13 I' .lb V. I'vn I vii ,-,H-, GH3 rm F\,i1m v. Jnii,.N Ti All 252 H51 "'" ^^ •'■•"••H Mich T 186i 8| . rwtiitlitT V. Ntjvi.rs.. . ..I I'lin »114 :>T.) '.»2'.( I • I ri> T (;ili>eit 1 All ',10 :,h:, -191 r.'.Ti ' h i,.|.lh V. McKhj 2 K.-rr 4:4') ..fM) y|5 *' • Kitf.«.-niM V. Mhnw,,1I . . .; \ll -2:13 SIKJ 8:)2 KoHtff V. !,,.«. viich T IH71 710 Ion \ Wnuiit H All -J 11 S.",:; >4»11 > V. I liil •_' All .-,m7 j-.xi ' 'itll ^ Ml l.u.l •_. l>„^ 1 ;(,;._) i» 'ixlHo.' V . ,lH«k 1 All i;«) f.l.'{ llsj <.ia> \ Siuitli 1 \|| .-.(IS U)7'_' *'''*»t ^ Imivih' 1 Hail i:!i 7 I'ny ;iih .»^ .u;h MtW. n»niiii^. \. Hanwiu r. Ml 3tl» !^'.«i Mart' V McC'dII (' Ms ;«) 6'.'.t "nt.-li >. Alhof :i All .■(7.". 904 *■ •• lUtluujiv V Hiiijm)ii i All 127 K52 XH7 Hs<.t llatli. \v.i\ \. Hiitrli ! Kerr IJM7 .")(l") ■• ■' Ili4tli.wii> \ Hatch .... I All 20<) '.ii>:! ■' llHth.wdy V. Muiiii. 1 All 1»2 .i(H» ■' •• llathtvv.iv \. Hmi.,.,„ .Mall r isnu 6;'7. . . f.i uit :>.y.i 6i»;< i>.'»l ilV.t '■ " ilajiHoll V. St. .I;|lll('^' 'hiiich .'I'A 1! I7'.i... 12H.". l-ild I'J'.i.". llJOu ll»"athcoU' V. HujilHB . . ._' I' A H 2'J»1 tV^fi '.)Xi lljckiuan v. Kiiin I jidn AM 127 ">«»> •• •• Kill V Tdtia :; K,.,r 2'.tj 103.". "• •• Hill N I'odd 1 All tiOI so ./IJ •-' All 2()1 17 119 :..".7 ■i Kerr 238 8nu .4 .4 t. HolJcriU'-iH \ M()lii,.ru«'Hs \ Litllt'. . . All IS llHii Hown V. M«ally lUi 121 UJ.t Hubbard v. I'ower 1 .\ll 271 •>47 710 944 HiitchiuHHj V. Franer . . . . 3 All 417 .V)8 •IrtiUbM V .McLrni^jliliii . . ...» All .J4 ()27 Jaidinc V. ( 'oiKlt'y ."» All 501 A,-)! •Ui vis V. Read 1 All 31 «so 6l() t)6« •I'linutoue V. .lardiuf .... 1 Vim 170 •( IH 4116 4y7 •lohuHtunu V. .lardiiie . . . .2 I'lig 7 ;>62 36P inn TAIU.K OF (WSKS. t I m m 1 1 1^ iJtM* dem ■lnhii»«U)iio v. Milmt a P .1 H ST5 1074 1 172 •lohiiHtniu' V. H<»i' S K»Ti HK» ft(i •• " .loiM'H V. lUk.T 3 All r.'.M 'lo:, • •' .loniw V. NovtTH '2? Js H ll'iT ViHV " " l.iutm V. Woxlworth H All S77 KnJl '• •• K«rr V .Uiuiiitoii Tnii T IM7I llH5n:,i» '• ■• K«irr V .Iittnii'HtHj Mich T 1H«9 . \U'a) KiTr V. McCiiily .« All I'.M I.V* !> \-;i " •• K.Tr V. McCully S All /VoH 4.V.) ■ • K«'rr V W<>tni»r«> A Ml 1 10 .Vl'.t •' •• Kiiij|>H.ui V. ('»ft 1 K.'ir Sir. fiV >*«a " " KmiH'Kr V. Wu'Wi'll Hit I'JT . 7'Jl •• •• Kirkv UiK« •.' Ail tr.H ."MC.t •• •• l.u« V. Tr.nightnii « All 111 li'U •• Levi V. ShiiiuuI 1 Hmi 'ii">.'i l2.Vj I .iviiitfHUmf V. (/orri»« A Kt-rr 450 I'J.'iC I.<)iicIu«hUt V. MiiriHy S K«Tr H.'l.') 't'll l/mi'heHUir V. MiirtMN I Ml "iHJ 61" •• • l.)..n V. Hlaviii .{ Korr 'J.W 447 H6H I Ih7 •• •• NlHC<{iie*>n V. HudUt 1 Kerr 51 H «-'« •• •• tltihoiiuy V. CrMtif "1 Ki rr 'i'iH C.S'i •' •• Mallfltv Itobicheau 1 All 111* ■>\>> " •' >l«yor. itc., St. Joliu % IIiMimm 3 All l'»l \n Sft:i >:.7 Mayor. Ac. St. Joliu v. I.ittlobale :> All IJl 57 •• •' MrCulIounh V. l)ow«l ?> AJl »«l 7»l •• '• Mi( ulluni \ UiM- 'i All n.H IGI i'^ " •• W. I>.m*ld V Ki»U«brtK)k»». 4 All 155 -Jk; 4% '.o; " " ^IcEaohrrHU v. Tuylor . 1 All 525 :S7 I i". I •' •• McChiwkii V. Mo('ol({iiii. .1 Mmii .'i:i:i M'.' " '• \IiK»y s AII.'U 2 All l;tl 44'.« > .« •• •• V|cK.ii/.i. V. M.mliBr 2 Pun «55 155 5i:< 5W Htil y.H • •• McMakin V iMviu.. 1 Ken II! -Ol •• •• McTavinh \ HoiiUtiii 3M:.ii22I 7M.', • •• MtV»> V. DKiiici 2 Vim 572 «ii»7 i«3l liHl ■ •• Mttwl.uru V. Mo(J-.urtj I All «il2 li' • •• >f<)fTiit V Th.)iiii»H«)ii I 1' .V n 5lfi 4«-i 57k 59.S y38 •' *• Momce V. Roe 3 All H4 512 105Ic.\lpin 2 K» it 467 415 .') *' •• .Munrn V. HauHoii Mich T l^li 51W " •' Murriiy v. Murray 2 !*--^ ;{«1 5o4 I2«M •• •• Myen* t. Babiiumii 6 All H«i U2» IJ'>M " •• Viwinitli V WilliHUm 2 Kt*rr 159 ^'>*'J " •• New B A .N.8. Land Co V. It.* t, vii 'lari 5.« •• '* i)d«U V. Taylor :i AU 4;n "<» " •• (tdell V.Taylor I All 1«5 5H0 - •• Ow«?u V. Hiithoway HU T lt.'7 '^■' IMJLE OF CASKS. iai5 . H»74 M7-.> m I'iHtt 1021 ...inn ii.'.a ii«> .4.'i<> r.M -u-i 4;VJ .'»4«.t T'Jl .."^Ct (i'.»4 rj.vj 12.".(. .m7 61" 447 H«:< 11 H? &2X r*:. .Mf. .■\: 7l»l 101 I'H ..•24c 4'.M-. ;«|-, .-.97 li.''l 44'.t ■> ■« .■.i;» 5W H»u a.13 10.>t> 41;'. .■!<>•-' .MM I.JM H'21 I •-'•■»« tuy :..ii I Hft ."»«(► -i?.') !»<•.• .1.1. I'n.l.i.K-k V ciin'ii 'J All :a4 1*254 • l'i«liii.-r V. R..SH .') All 816 .'.6<) " •■ I'lirkiiiM'ii \. ilHtil'Miiiiiii. . Hur i:i4 .'iOfj H.'M» •• • IVhInhIv v. .McKmulit Ht-r W.. .'itK) 77;{ 1115 I'.hUhIn v. H
      {y 4 All M>'j '.cj* .. 1 All IH'I ew H«4 ..4 All:^:i H2'j . . Hil T IHHl r.«i4 rt»)'.t H45 ..2 K.iT :r.l tit II.'. 570 ..BeiH.Vt .'Mil 861 . 363 I'i'Urtt V. Mo(flo>i). . IVten* V. PelhtitT... I'ikf r. Tit'tTity I'oiiHfonl V. VrrtiDU. . I'linly \ !'«tt iH K^tor Ac. of All StiiiitH Clnm-li \ ('ni\vle\ ;» Ki it '_".•«. U'ltni Ac of HatliiirHt V. Swi'eiuj 1 All lUi. . I; ■i't.ii Ac. of St. ({♦•ormu'r' Churi-li \ CoiinU' •-' Hum ;i.i7 .".16 Ui.lmnls V I)ii\ ;t All no H7 '>li KohiiiMiii \ CliaN. Ka.st T l«tU ^58 l{' l.iuHon V. ('li»HH«!> I lliui .■>() 771 H..U-it.i V. \V,itH»>ii 1 All (hI. 6.'»7 '.•••;! ll»>0 H.oiii V. Hiowi. A Kt-rr .121 18 HoUjiH V. Trviitt.WHkN '» All t\M 459 ShiuIh v. I'iiiliips 1 K»'iT 8j'i 545 SiiuiU \. riiillipM I Knr 5 r.\ 900 *>iir^e»iit T. S.uxt'iiiit 6 All d" I«i6 •vjott V. Kiiiu :i KfiT :•_' 784 '^rott V. Km>; 3 Ktrr 7s -.MX) 492 Itl.l 16.". Siovil V. K<.f H K.ri- .11 ".10 Hiovil V. Siintill 4 All 58 790 S, ed.<4 V. Couni-lly 3 All 337 tlLS Sliiiiiiion V. l-'ortuiio 3 l*ii>,' •i"9 tlol Sliwrewtxxl v. StatkhouHi'. .2 l'\in 208 :u\s «ilieri«lock v. Power-, 6 All 2«2 «'.12 026 Shore V. (Jearoii 1 H.iii 1 H 1 182 Slion- \ S;iuii.lfrs 2 Kfir is «'iO."» ^mion.l- \. .M.-C..r,knry.. ..2 All »tW l'.'T2 SimptM.ii V. Doijovtm 4 All 116 4'>0 50O 8 10 SinijtfM.ii V. FttulH ."> All 540 466 :>9.', Slammv. Hanm.ii 3 All 127 137 575 632 6i;". Smith ▼. Siiarr 1 1' & H ".<'. 607 703 b».'» Siwiic.' V. Wflhujj 6 All 4T0 18 514 853 8,-.0 Solomon V. llraham Triu T 1H71 1116 Stepht'uwjii V. True 1 P & P 7 13 512 Stewart v. McDonald I All 673 516 547 61.1 nun TAhiJ-: or CASKS. ♦ • -I Do« ilom Slranne v. Th«iin|»H<.u . . 1 Kiir 5M 4HH Nj;i " •• Hiiliivnii V. furry 1 Vxm 17.'> 4M 9\>, •' " Tnylor V. lto«' IAIN 'a» " '• ThompHou V. All«t)Hhaw. . . 1 Ki«rr M4 '.'3 3.VI (i'Jb '• •• Th.>iu|>M()ii V. Dfwar Hil T IM/T '.HI •• " Thoiu)>M<>ii \ MHrks .'< Kiir <'>ft<.i 861 KC.6 " " Tlii>in|>H4>ii A' wife >. liNriifM. Hit rjri 446 I hn ">»':' •' •' Tliiini{>min v. Hah- '.» All 'i-Vi .'ill •• •• Tn'iiaw..II V. U4H- 1 All r,H-, .-Mtti '■ •• Trid«T \. MrliiUmli I Hun MYi fli:; • •• Triiler \. N«Iiit<>Hh Kaxt I 1M71 r.l •• '• Tmh- V. Km 1 K. n •'►M ...r»()7 VaiiltuHkirk \. CariifN . , . .'_' I'li^'i.!;! ««• V«Mi..ii \ McPi.nmll . . ..HiITIhim llH? • * Vrrunii V. Wliiu- t Ail .11 1 6i'J " •■ ViolftU- r. '1 li«.rri» 1 P A H :iM» ViM '• " Viiii.'iit V. Murray 2 V\i^ HT". iHti .'•O.'J (m Htll •' • WaUh \, DalUn ti .VII :iH7 ll.V.» V2M •• •• WliiU- V. K.K- 2 K.'M ;»«'i»» •• • \N liilu«> V. HUuituu i .\ll *\:i'2 12>4 " ■ WilliHiiiH V. DnHcoU I All 17«". W.',' IIIH l'2:>i " " WilliHiui, V. Li'» itt '.' K«>rr Ki hW •• •• Will ». Janlinc Hor 1 1'i 1 15 Dt.lurty V. DvHHriMiy 1 lUu I'.U 17'.> i.><.luTly V. lldKan 'i Kirr »'.»2 '.Mh Dohi-rty v. McOratb 6 .VII KIH .Vil Dolby V. Kiuueur I Ki-rr IHJt W.I ^>*] Dollanl V. FotU 6 All 4i:< 71 HW iK.iiiville V. FerguMti 1 P A H hi .".77 640 1161 1). mvil U> v.lU^van 2 llmu :«;« UKU IHHi Di.mvillf V. lU't-'vau 'J MiiU 17.' l<';i'> DomviUe v. ll«'.van Kant T 1H71 Vil t.4U Donjville v. uHncii 21' A li Mk) U'7't Douahuo V. Todd 1 All r,w 10.».' l»oualiue V. Hallutt Thu T iM'iH 7ln 1 >uuavMi Kx parte 2 Fu*; ;iH9 • I -' 1 >oraii V. Willarxl I I'uk SoH 677 Durman v. Audenton .^ All 21.'t 161 6 » Duuglawt V. Iliuoklj llil T 1828 67t. I)uuKli^'*>* V. Hmiim>u BcT 121 !M-' l>ow V. Bl«©ch « I'uK 432 W Dow V. Dibble 1 Hau .'>6 659 706 7tt7 Dow Ex p«te 2 P A- B 302 777 DowUng V. Tritei. 2 All 520 lOM U0WD6M V. Gordon 6 All 174 i^*' DuwuioK V Oault 2 All 669 684 61 • Doyle ▼. DooKMi 1 Kerr 161 »*» TM5LK OF CASKS. l:U7 4H8 »"»•* 4M »l'. Vt-' 3.'.:i ♦•'•5 tflt 861 Hi'.6 . ..446 iHH :.r.' :in .'. til;; tvi rAr, M»M' 11M7 6V.i l'i»VJ vwi .'>o;i 6Hy wii iisy I'.'n 67 :><»» 12:>4 ..mi 1118 I'^'-i- 865 [ US JT'.t '.UK .VJI 2y3 ^'^1 71 l»'-'7 . . ...-,77 6 to 1H'>« M)\ ll"«i l(U.'» ..ru f'^u "'" I'.'T' \". I0:ij "'" 71" lij 677 161 6<«. 'iltt iJ^" " l.>t [ 67t. "'"* :n;i UM'.I ... 659 706 7'JT 777 "' [ lOM 46«1 .......... 6«4 61 •• 341 Doyli" V. Tiivlor Ht-r '_'(il 7 '.my \(W>,: \\i\r, Driiry v. H<.w»- .{ Kerr 'tHn -,.'■, n -,.1 Puff V. Huiittr 1 Kerr 45i',i nd Duffy V. Styriu'Ht .'» .Ml 107 661 611 Duffy V. U>»ii M Pii^ 110 ryj-i Duiu-aii V H.iriifM 6 .Ml 172 m.h Duncan v. Unvni'ldH 2 tUn 1H7 I(t.l4 Dunham v. Kin>,' Trin T 1h:!1 u.', iMinlop K\ i>urt« a .Ml 281 SJii xi:j Dunn V. Ciirrtt 2 All 21H 677 Dull uuil utliorM V. Krtuleriutun Hodtu <'<> I I'. iV B .'J.'! 645 Dunn V. Howard 2 All 61.'> 8;>r, Dunpliy V William* 2 Pu« ;W0 16 Dunphy Kx j).. !.. 1 P A: li J-. \l:\r, Dyk« man v. Craij: -' .Ml '26'> ;!i)6 R. EaKi«'-* Ev part*' 2 Hun ."il 685 Ka>jlfH V. Mi-rritt 2 All r».>0 47 Enrlo V. Dttvfhfr 1 Kerr .^H .334 Ka^tahrooks v. Brt'an 'i Pii« 'MH '.t34 KuNtern TownMhipH Bank v. Hau- iiiKtou 2 P A 11 631 12i»i> Katun V. La\vr«>nce 2 H in 8.* 1245 K.lMiunhon V. TfUiplt' 1 V A U HCH '.M2 KUi-i E\ parte .» All 601 28.'. Kllia Ex parte 1 I' A B .•>93 273 KlliB V. Nt;wtou Her 77 66 KlIiH V .M..ro«.n«'y :< I'liu 512 112<» ElliH AuHij^nft) A^-. T. .Mi>r.j.>iu-y 1 I' A B 7 1 1 .'8 Elstun V Vance T. All 631 1121 E.ul.re V. Hathowa \ Trin T 1827 771> Kuunernnn v. Gardiiu-r 1 All ir>l 112 246 2.11 Emmrt V. Noill :t All 438 ln4 EnuiH V. HaHtuiKH I All 4H2 214 E:*<.u V. Dunn -■) All 417 98 Ettaon V. McMa-stor I K. rr5ttl 4o E.to! rookB E/ parte I All 273 309 E»til.nM)kH V. Brean 2 Pt g 3^1 86L> Eati.brooka v. McKunzie C Ms 41 215 24i» 365 Ealebrook-s T. 'J'apley 2 All 4.>4 788 EMtt'brooka v. Ormr 1 Kerr 57 911 Ehtt^y V. Brown 2 Ail 527 87 EaU'V V. Newcoml.o Ber 343 1045 83 m-i^' 1318 TAIJLK OF CASES. ■ : B AN. A. Hwj. C\». Kx j>iirU' Mid, T 1H71 HR K A N. A. Rwy. Co. ▼ . Duuu ;< Vu^ 3'2U I'tf, E. A N. A. lUy. Co. v. Thoruan I I»u« JJ .271 7^3 E. A N. A. Uwy. Co. v. McLeotl S I'u^ 3 12,1 H2W CGO Ewui« V. Scott Tnn T IKU 1,44 Exet;uU)ni of Au.lr«»rt.- J I* A IJ 4 273 6H8 Kairtmiikh V. Doiliy 2 Kerr HO yjn Fairwi-athfr v. NtTtrn 2 Tun 5'i4 737 Fai TVS jat Iter v. .Mc.MonagU' Adiiun- ihtrat.ir iic fi All •-,".t7 170 s.'.'i Fakx.ntr v. E. A N. A. Hwy 1 I'u« 17'.t h'J7 FallH V. SarKiiit 3 Kt-rr "ilM 3<,i qh'j FarU'V v. i'hiiips n,.r 317 loi7 FarnKT v. Kllict- .i l\m 4h<; 171 Faulkner v. Cviitral Firn Akh. Co. . 1 Kerr 27".» yy4 K.iWctlt V. Nftlit-ry 2 Kt-rr HI 1073 Fawo«'U T. Allan. 2 l'ii|^ M'J lir>{\ Fcarou V. Murray .I All 11 173 3fi."> Vt2 1 1 1'-'5 Fellowa T. An>ert Milling Co 3 Puj{ 2i)3 ;U0 Fcniu'ty ▼. HiihuiuuiIh ft All .VI7 71 FerjjUH T, Mc I tiUmh B.r 91 .iVJ FiTKUH V. Wanilaw ;{ Korr G6.'» '27 ,'i7'J Kfrt{»h V. Wanllaw ;j Kerr IkW 777 ',t(»G Ft-rxuMin V Doiuville -j 1'uk "JHH "jfrt 1 icr> FVrKum>n E v jiarte I / 11 (MVS a'J'2 1 1 73 Fi'r>^u»<)u T. li.iliiivM East T 1831 31J Forj;ui»«)ii v. M .iirhua3 H2H 1 llto F« rt;u«»oii T. TriHip 3 TuK lH3 ."i-IO '.(13 Fuldfh V. HeudertMjij Chi|> Ma 47 -iHO FithimiiioDB V. Juuea 3 Kerr '»%. . . liSli Fla,;lor ▼. UichanU 1 All 514 5M U2 KogK ▼• l»owliuK Tnn T 1H70 530 Fole\ T. Tu< kt r 1 llan 52 ;iO Gl« ForU-H V. Ilollz. 4 All 611 'i^'i PorlM-a T. Lord C Ma 00 104 Foni V. 8*a.t. . . . 8 Kerr 287 1»4 rordii. ID re EaUt«.of 1 P A B 551 IIM Forreat T. McIU«.* 2 Kerr ITI U 70'J eesss TABLK OF CASES. JH19 118 Vih ....'271 76a i2;i -yi^ <")W) :U4 4»6 ra 6H8 731 727 170 Hr,2 h'j7 3'.il 6:i7 ion 171 \m l(»7J Hr>i\ :vio " 71 :»:.o ."....'i7 r.7-; 777 '.tC.G r>frt 110.') vi'j-2 UT:i iiiJ «»y 101 106 ' H-2K iiyj ' _, yi:i 4H0 yio Ha:t . , ..'i-21 710 '.»»>» C.iili ][ HOC y.» 'J^ 7H7 ■'"'///.. yi "**'* &ao i»'i '"[[[] 104 m "■"/.. ....iiw ' .24 7 154 FoHtor ▼ Mrown 1 Kerr 2(V> 209 F»Ht«r V, Dowliiitr Aiintist iHfis 1079 FowltT V. Dowlitiji I Ki-rr '>A\ 114 Kowlor V Fowler 2 Putf 4HH 3S2 (177 KnwlJM V. KiiiiK-ar Hor 2«) lo.> F-.wlit' T. Stroiiiick Bur .".? lOfiR Foy V. .t:tnu Ins. Co 3 Airi'.i 7 10 FoxwclU" V. Smith 2 I' A P 139 1294 K..v»' K\ parte KiiHt T 1H73 2H5 Fr.'isor V. Hjack 2 All :il2 r.l3 iVn Fri»Mor V. D.m HriHtiy i\ All V.W 309 FriiMor ▼. Dewitt 2 P & B 73S 37 208 FruHor v. Oryinaii 4 All 7 i 422 fi71 H27 FiHHcr V. !!ariliii« 2 K.-rr 290 1 ")3 If.l .")H1 Fras.r v. HiinUn« 2 Kerr 375 106G Fnu«««r V. Iliinlin^ 3 Kt-rrSl .^74 Fif>li'rii;toii noiiin d). v. McPIkt Hon 2 Hitn H r>l 7 798 Fi .^Kihctoii, ( 'ity of v. Lucim 3 All 583 23H Fr.-«lericton, City of v. Mulligan . . .', All 671 «186 Fr.ncli \ IIo.ii.son Triii T 1H.S3 911 l-'mik s I'hitt 3 KiTr fiV) I WO I0(;3 Frink V llill Kast T 1H31 422 Frith % . lMl/,!,'urald Hil T IStJfi 432 Fritli s. Fit/.patrick •: Ml 318 1122 Frost V. 1 »iHl.r.AV 1 Hun 73 1 »9 118". FroHt V. Korr 2 Pu« 338 1138 Front, in iv Kstat«- of I Han 127 «<'3 Fi-oKt. in rv .statu of <» AH 182 l)h-. V. l)ou>{las «') AH ■'>'' (iti$;nun v. Chapman 2 P «.t B 140 (;an(iy v. Htaplea 1 I--" •51'> ( ;anoi)« V Baylcy 1 P iV B 324 ,\4i i\ * \:\H) lAHLK OF CAbKS. >n v. Hnrilmn I l»u>j Uirt 12n (IftHkon V. riui-nix Int.. Co 6 All 129 S:^) 7:<7 iJumliii \. Ml KiliiKiui -2 All :;» Sfio 41'.i '.«a«i 1197 «;Muit V. MciiitM^h c Ms no I'.to (J««ir>{o V. UrHvl.-y Hil T 1S7:< 6i.l H rtf .'» A 11 ."> 1 2 4'.»« iM-hii.T V. CiiriiH 2 All .'»"• 42a UVA 017 H17 '.'n1 (ijbbn V. Sfwall Trill T IHH.J 17 G70 ^VJ (iihbt. V. l)..vi-l.c>r Bit 78 :''7:t JJibhn \. Stvd'liimn 2 Kt-rr KM",... 917 (•ibnon \. ntttiMiiHii 4 All '>W l'-' ■<;il.Huri V. Uuy 1 1 K.-rr i:.0 20'.' {ii\>m'U \ . McK..!Ui a Vuu 299 a2a 1 129 122'.« hh G4a silT Uuii.t y V. lUtfH .-.All a9.> 1 !''« <;!lT«rd V. Qu'vu luM. Co I Haii ia2 Tla (iilb.rt V. Citi.ipb.ll '.All »»0 Uiib.rt V. Cyr Muh T 1h7U U.lb.rl V. Dui.lmm 2 K-rr 9, aOll 7mi OillKsrl V. (}if.'U*ra 2 1' .V M 1 1^ 727 fit; It'll (fjlluTt V. O kmI.iH 2 HHI2 l"Vt KiiHtT H7a tm urn; .'4 Han 2ia H'^ ■.'ti7 •2 Ken flta 11' .1 .Ml j.r. t,i\i Ill i-n •;;" 2 Kerr a'.Ki *5» .2 All -.12 27fi a;a Mi 18 N,t7 1K7 . '.120 107(; (iillMrt \. Smith •iPiVl»2H ckU.ii I •'»" •"»« OillHTt K\ I'urtf »ai»uar> IHCJ Oilb.rt Kx iKirt.- 1 I'uH i^ «17 aua lOKl 1 172 OillM-rl Kx piirU' r.- AlU-rt Miiiinn Co.'i Vuu 29 ' •"•' G.lb,rt I n re 1 1» .t B .V25 12«'^ Uilclihht V. WiKt-r Ac. IiuhUjch .v»- . . Bt-r 219 '-*•'' Gilk-apif >. Philiim 5 All 221 '-'»♦' »'J Giil..Hpi.- V Fo^arty I K«ir (>«;2 na loari (iilriiau V. I'lielau 2 T A B aM) 10«»« U'.H rtJ? St" '.'sl 17 G70 s V2 :'.7:t VM 77.-. 'iO-' 7.V2 170 :!'.7 lltlN f.4S sttT 11% 7lri I U-.;< 1K7 IHW -'7tt ..'>H', »H(1 f,l-J I'.-.'T \W2 i:l(i :iMi llU 7H0 1-il .... ;••-' UHtJ li'Vi »;h(i mkm". . .Ill' -"7 li:i Ill i"*4i '1;^ 559 •J70 373 '.13 N;i7 IH . IK7 '••JO lU7ti (17 :»(>:•. 10 to 117-J Il0v,ou 5 .Ml "ilH 192 (tiliiiojir V. Tim Liveqiool Imh. Co. . Hil T 1871 :VM lOir, Clilinour v. Hull 1 Korr Ul Hi Giliiioiir V. DnwneH 1 Korr HA 1070 Oilpin V. Scovil 1 H.iii :t7;» lU'.t Oirvin v. Mayor &c. of St, J.^hti fi .\11 411 l.'.G .'»()8 '.10:! Oirvin v. Prior 3 All 10'.» •2.S2 'iH6 01(i«i# 794 OhwH K.\ parte 2 All HM IHO 479 .'>25 rtloncrosc V. Wark «i All 201 1049 0.)(l»r.l V. Frci \'-\0 C2.'i 93'i 100:{ rmliinl V. Kri'tlfiictoti H(viru Vn ... 1 Hhii liO 129 91>^ Onlanl V. Tuck »; All .iH :{.>1 7t')0 1121 0(Hlf roy V. < )ul.«Kl)y 1 Hun 22;» 540 Godfroy V. Ri.inliiii NovtinlKT I86^ . . 108.') Gnlilinj^ V. Wiitfrh()iiH«! .'{ Vim :!l;{ .",H 219 [)', .-,»> 2.")9 Gordon (Hon A. II.) E\ part.; C. All 1 119 Gordon v. Frtuich 2 Idrr Rid 2(M> G(.rd.>n \. M ivor Ac uf .|..hn ;{ l'ui< 22f) 'J91 O.irdoii V. .Mt;(iihl)<)n ;{ Ptitj 49 2H i:\r, 47H (Vms K\ parto 1 Korr HVl 7M0 (;o IHW WM GoH-^ V. 'Mt-ssiii.tt 1 All 101 l().->(i Gotirloy V. (hibort 1 H.m 81 12"..' itov.- Vlx parti- H.t ls7 ; 9 G ivi riior of Madras Boanl '.. Uyaii..Mi(li T 1"I>1 1197 <;ndiain Kx pfirti- »', All 20'.t 1011 (irahair. v. Gilh.Tt 1 I*u« 2:19 l.'.:5 <;rahani v. Crrvn '• All aao 120;< Graham V. \V.-tnion» 4 All :{7:{ :577 1(m:i 1125 MM iiiaham v. Wi-tiuoro ."i All 217 3ti6 (iraut T. Aiki-n Her 2.V.) 142 96 ) <;rattan f. divan 1 P .V H 71 1 1007 1010 <;iay Kx partt< 1 All US S7a ( ; ray v . .Mcoran 1 I' A- H .")5.'» ( iray v. VVtH.y 3 i'n« 2 ll> (;ray v. Vosoy 1 P .t B 271) Green v. H.MidrickH 1 All f,»-l 177 (iroou V. Kfiuai 3 Korr 491 49<> ,'ory v. M.-yimde :i Pii« 1 1*3 7'J'.t Greenock (Hiurcb v. Lote .3 Kerr 170 'WO <}rioves Kx parte 6 All .'« fi84 Griffith Kx part«» 3 .Vll 08 S7» .50 194 706 tf'f "'■' 322 TAliLE OF CASKS. (Jrihw.ild V. IlHllftt Mich T 1H3I S'J.') lO)-) (JniHvenon* K mt«. of. v. A|{n«w Dt-r VW .'Jti;^ Grove V. DomviUe 1 PA li 18 882 On)V( r V. Watmni f. All ;»«4 -J'ja On.\eH V. (IriflUh Trin T IHIW 111'.) GrovoM V. Sjoaan 1 K»rr If)^ 792 GruiiiMe v. Pcrlcy 1 All :»76 372 1(M)2 lOfif. OUUI11K..M V. Thoiiia* .'> All 118 203 O iiiUt v. Slian' 1 V Jn H 286 IWi OunUr V. Hlauhti.'Id 1 T A «({ lO'J 180 Onthrif v. Suelliu^ 1 Tiiji MiO 733 t I n. IlnihMi V. Wliitr 2 K»«rr CM yiH 1207 HaineH ¥.\ part*- ft All 2.M 200 HHirf.iM.v V. (>'f..Hry « All ;«><» 1'3 Hall N. Allfti 2 Van l'.'2 :WJ '.'hT Hall.t V HolgfiiH Aiit'ii^t 18r>'.» 1(»82 Maiiultoii V. n.urv'.oiK :\ ?A,i 2:12 92 722 Han>ilt<>ii V Hr\t%i>ti 1 iltiii r>H t'l.'iO Hiiiinltoij V. HdI.Kt 2 Vn^ 222 563 6»7 6-'-' llHinilt n V. Love 2 Ki it 243 r)72 12:)3 12.'.'' Hiiinilton V. McL»-aii Hil T 1828 12(i'.t Haiuiltoti V. ThdnipKoij H I't^; 237 ••'- n unm V. M<-A(T.<«. :, All 3Hr. ()H2 11 iiiiiiiinii) V. Hiirker 3 Kt-rr 831 4«il MmiinmiKl V.Clark 2 K.-rr 'J8 210 lUnimniid v. .lohiiKton 3 Kt-rr Irtl M) IImiiiiiioiuI V Mott 3 All JJi'i '>75 Haiunjoiiil \. R .l.iUHon 2 Ken- 2<.t.'i 7.')6 1134 HainiiKiiid V. \Vluol<;r 2 K»Tr .'.tV.* 7Sf. Jl»ini>H')i> ▼ Al'»H)it 1 K«rr l'.»0 '.W>* Haiiford V. Oidiu'V 1 Kt-rr «2 * >♦• Hauloii. Ill r.' will ..f j Puj. 13C l-.'<>' HaiiiiiKt^.ti V. r<.ru»i«-r 2 Pu« l'>0 622 !M » 1 1:!0 Maiiint^tou v. Coriiiifr 3 Puj^ 212 320 IlaniiiK'ton v. (Wro.i.d 3 Pii>i 1 'd 36(i UHl lt'16 1130 llanintflon v. H trnhmau 1 Pti^; 217 232 13 ''56 lUiiiriK't-.n V. Harhliman IIil T 1873 •<«•» IlHiiiiiKtoi. V. McMhiiaiuiu 1 All .VJO »•>'■• 7(^ !Ianiii»{t«m v. Hu»wait I l*u« 242 91 381 Hauwju V. (;ov.' r> All 133 78« HaiiHon V, Mawli..n.y 2 Man II 269 Uh HaiiH«m V. ItohtrtHim 2 P A M ft8() l'^»-' Harding V. Barkt-r 1 All 576 aiH) HarditiK v. I^^ddcu 2 Kt-rr 173 lOH Ilanliiijf V. Mt-Manimin I All 599 < 100.1 :iw HH'i -n-i iii'.t 792 wri iof>r> '203 IHO lO'J IHO 733 91H 1207 '2r.o IVi :wj '."f*' 1(W2 017 622 ..r>72 i2:.3 12.-.^ rjii'.i «>2 ^ ()H2 4»W -210 t'.K) .')75 ir>i\ U'M ' IHC, ' 91»»* SK". 12(>I .,V.>2 ^»1» H:iO :i2f. »r,(i ion ioi« n:»« 13 :'.56 lHHt) itv.t ?(►» 92 :Wl " 786 269 IIH "'" l'i»-' '""... 206 IWJ "'"" 4fiy 84« Hartly v. rriaoit :5 All 2f) » H77 772 11 ')3 IIiii'kiiiH V. Johnston 1 All 70 1*272 Ilaih-y V. (;o()»lfill<(W 1 Htiii ».'>") 141 tjl2 Hnrloy Ex parte 5 All '. • I 28G H47 IlHipur V. AUixaiultT 8 All 185 107 HmriH v. Iteauinout 2 Korr 172 77, tij 1 150 Hi 8 'JO.l 953 llarlt Ex partu 3 All 122 HIS 82;; Haivoy Ex parte 5 All 261 278 Harvey v. Marshall 6 Ali .92 30 H.iHluck V. McMasttr C .Ms 4 771 794 llanluck V. Watwou 2 Kerr ;i62 1064 HikMSi-l V. Wilson 1 All 018 109 HartlinnH V. lleniiijjar 4 All .357 218 Hastings v. O'Mahonfy 4 All .'{05 220 Hatch V. Taylor 1 P i*^ 39 32 Hatch V. Sconllar 1 Korr 511 1051 Hatheway v. Cliff 2 All 2(,T -..99 266 432 ILitlu'way v. C'uminiui; •> Ail 161 119 llath«way v. Dav 4 All .Vj5 732 Hatheway v. McMahou 2 Kerr 2(9 832 Uattou V. Flaherty U r 129 lOGl Hrttton V. VVilniot 2 Korr 3 J4 243 HawkinH v. McBean 5 All 209 159 Hay wan! v. Maine 1 Korr 292 1 163 Hiiywanl v. White 2 Kerr 3)1 160 921 Harris v. Uoheitson 6 All 496 159 HayneH v. Chaliuiis C Mh 1 190 Hazen v. Urjboii 2 All 5 U) 781 797 Hazon V. IJrjsou 3 All iDl r»49 Hazisn V. In re will of 3 Pin 3 !9 1264 Hazeu v. Urninmonil 1 All 267. . 24c Ilea V. .loneH 2 All 61i> 143 Ue« V. MeB-ath 2 Kerr 301 471 Heaney v. Lynn B.-r 27 400 h«7 Ueavey v. Oilell 5 A I 52 1 621 HolH-rt Ex parte 3 AH 108 700 Hehert V. l?auin){tou 6 All 530 522 Hexau V. Jonert 2 Pu« 2.10 719 Ht>;Mn V. The Fredericton D»x)m (Jo.. 2 P -v It il.6 5.52 Hendernou V. Mayor Ac St. John. . 1 Pu^ 197 ««y7 984 HeudrickM V. Hallott I Haii 70. 185 3:i ;{i>l i;t24 TAliLK Oh CA8K8. ■!-;! 11< uilntkx \. Titim 'i Ilaii 77 rj27 Hi tiui^nr K\ parU> li«r "JOV ;'2\i lioni\ V . Murphy 1 Kun "iu? ICl itf-t Hi-rlu'soii \. (.'luiuiuKliHJu I I* iV H '2li'> lyy lUrlurt \. lUi.iu^tou 1 I'ug Uli* 324 ;J61 ;fi;{ 62() H.'ilit'it Ex j>arlv a All lO.s 'JH7 Hi'rkKTtitou V. C'uuuiiiKliaui 1 Pu^ '-^SA W.) Hfrriin:t< 11 V. Lu^riD 1 Kerr K)y 27 Hon**') V. lUthfway ll All TM I'.i lOyti IlickiuKii V Norih IJ. Idh. Co 2 llaii '2M> 4..;j 9J;J llieilihy V. L<.»{>{ie 3 All 204 4..'l 671 HiK'piiH V. Ilaiiiilti n i". All 1 2 "JXi Hill V. Coy I Kerr 187 ItX) *Mi Hill V. Hi»w{ 4 All lOH 473 Hill V. Kind Buir 2«l I'jl liill V. t^t. St«ph.!i Dank 3 All 1-.6 140 Hilt V. Weia.u 3 Korr 1 IIV HillaD.l V. Hanim 1 1' A iJ 2H'J 'i H.Hlg.' V. Ut^id Mich T 1h71 .W4 H -Ig.. V lUid Mich T 187J 7a :i3y H.HlKH.in V. larr 3 Kerr 4ytf 63 yoi liyU H..gau V. \VhiU.h(*d Hii T lh71 660 ilolder Kx |»art« 6 All 338 WW H'.'l H.-Mer V. McUarri^le 2 Pug 6J I'ilh HoldcriuM V. MiFarlane 3 All 1.V2 1»J Hol.u-rnf»H V. McGhu) I All 4i;li» %« H.)lderuts» V. McKuuinok '2 All 'il." '6T^ Hold, rutki. V. WelliUK 2 All oT2 "«y Holland V. C'loac Uer 344 ;«4a Holity i:x |.art4j 5 All 40C M>-\ Holujt'H V. iiiUiii^i. o All 2:j*J 144 '.>:*•: Hol^ne^ T. Clarko llor 87 I-M » Hoiuf r V. C'riMikfchauk 4 All 375 166 768 H..rton ». Tibbitts 1 All 61 P-'H'.. Howard V. Ooddard 4 All 4.V2 2J0 23J Howe V, Caraoii 3 Kwrr 111 Itt6y Howfl Kx parto 1 All '.81 2'J-' Uoyt V. Htockum 1 Haii 3'iy ?'.«» Hoyt V. Ht xkUMi i Hail 6u 4'Jl » iT Hngbea \. Hijliiiea 3 Kerr 141 I'iTa Hugh, h V. litiluiuN 1 All 12 540 834 liuKiiv> V Sulhvrlaud 1 Kerr .W4 820 lu7;^ Hughcy Kx l»iirte 6 All 6y 684 Hugii-'ii V. K«»lh 6 All aiy 871 Hugh».)U V. W liito Eaat 1 1831 lO« Huiuplmya v. Utduui 6 All 5» WO TABLE OF CASKS. i'li 1J27 '.i'J . ...ICl l»l iVCJ a6i ;t:)a <>-iu '287 4VJ 27 ....7:1 lO'JO .. ..4^.3 0.t.i Ail 67c IM M) W.'> 473 lyi 146 IVi ua 366 «^H yuc 'JU 584 7a ;wu 660 809 821 ' r^iH i»j yor» \\ STi '[ •'«'.« " ;»4;» t;-b4 144 y.vi ' i-ii' lt»«i 76H IV'3'.. y, 'IM 23J lutv.t "' T.il 7',Ht ....4'Jl »'" ■" \'i:i Mo 834 820 107U 6H4 *"' m71 106 860 Hnntor v Hunter fi All 55)3 .T > 405 Hunter V. Miillox Trin T 186'. 3;} Ilmit-i V. MaiHox 1 Flan KVJ :ilo ii*)8 Hiiiitor V. Oiffanl 1 All 701 W8 Hunter In ro 1 Han -'.'{.'< HuMHPy ▼. Fer>{ii«on 6 All . '7 . . Huttiliitifton V. JohuHtou 4 All 40. . . 1-7 * 2t»r> 107 eu 1 ;18 lnrh«m v, Fcfui 3 Han 149 816 Int^rahain Ex parto 2 Pu>{ 306 208 Innuranc'o Mutual Co. v Porter 2 All 230 213 Irvin V. ( 'rook.shauk 2 Kt-rr 309 231 Irvjn Vs\ parte 2 All '.16 519 64 201 202 S:?H Irvin V. Goddard I Kerr 36 » 124x Irvin r Simondii ti All 100 389 J. Jack V. Clewea 3 Kerr 637 .. . Jack V. Eagle* 2 All 05.. .. Jackman v. Browu Midi T 1§31 Jackaon v. Black 4 All 79 181 IBS 1098 136 849 142 201 1176 Jackbon v. O'Douuell 2 Pug 60 79S Jftckuon V. MoLellan ...2 Vug 83 64*2 015 Jaoc.b« Ex parte .'. All 153 286 1233 Jame» v. Roach 6 All 23 259 260 Jamci T. White 6 All 431 201 Jame« v. Dupres 1 All 506 1031 James Ex parte 3 All 286 1S3 Jamen V. MoLeau 3 All 161 142 178 182 183 277 JiiineH V. McLfod 2 P A B 300 7S4 J'*m»v'W)n v.. City f Fredericton 2 .Vll 128 337 5 18 J*rdine E\ pArte 1 Hun 572 380 732 041 Jurdine v. McWillianw I Hun 570 361 123,-. Jardiiio V. McCauley 5 All 372 130 Jurvi* V. lUuuh 3 Pu^ ;527 770 J*rviH V Kdgett 1 All 66 261 US 515 1103 JamsT. Haniy •! All 212 19.=> JarTiB V. Miller Bor 191 1165 Jarvib V. Pook 3 Kerr 50 T 65 1032 Jarvirt Ex parte Hil T 1861 l-'dO Jenkins v, McFee 3 P1iu!hU)i ^ WilliHtuii JAUlTl u;-j V2r.:i JohiiHUui \ . WiiihIow It< I .(.i ,,,.,.. 181 '>7:\ t".'.-.' .Iciil'>. V. Hlj..all .1 \'\m Xii 71., •t'.|jt«« V H«'iHfi»nl .\ I'tnj H'.4 timi 774 l(»fi'. •Iiilivh % . Unlnfoixl. . . . ■ I I* A Ji tij. 'iHl I 7>< I H| ',~,t 'IH.. •loiiCH V, Cau« . . .> A 11 «').'iN . . . U Jn ■I'ii«t« V. I 'alKMi :t Piij" :i..(i . I'.i •.••.» i.m; kin'.i ■loiii^ (Kx |>HrU) R« HHyiiioii«l, aii itiMihciit •-' I' ,v H IMi 717 .loij.h \. lAnHnHMV Tnii T lK7i , 714 .lon.-H K\ |it»rtt .". Vll \HA m7v» .1 .ut« V. I'k'tohtjr 1 AJl .)iiO '>H| 7;^.? •Kim« V. FohUt 1 Hiiti 'tWi 'Jft4 I .li-H \ .Ii.iM « '.' I'll. .".Ml . 7J;» •Imduh t. .Iohcm 'J Kt-rr 'MS (W4 .lnj«« V. Hanfonl '.' Putf »«7 Ti\ .loiitM \ . Ml iijiiwh „' Ptij; ua an '••."< •loues \. Siiiith 'I \'tn> !.'».. U»7 JuUtfK V Su<*iKritn« I Vll ♦JUS 10S4 luiKi* V. StMVt^n 1 llitu 26(t 1177 J..Uf» ^ laylur •.' I'li^ ;{'»l [i-rj 7.M JupllU V. D»M(lsoll . Mil .HW l.>l) •lophn V .J..Iiu-»t4H» J K. IT .'.41 447 '.75 834 l.,ra..ii V . CoiiUh •_' A II IU7 ri:i •«4 :ilO H«M I -s, pli \. Mcl^<.xi Trill r [HUA »V..". .I.Mutl V l^Hkw.H..l „' Kerr <")74 i Ifi AHi .lu.lkiun ^. I'ark. 1 C .M» Lil J51 .(iiKticvtt of NortlMiiiilMtrlniiil V KiiH- Hfll J Fun '**-'» ><^' Kalhftm v. Hn^kf-n 1 Kerr ")25 7% Kiiv»u»4{;, \. I'heJou 1 Kt^rr472 181 276 1154 Kay V. H anuiKUiu I Pug 26 831 166 iWO Kenloi^ ScoTil 3 K.Mi f,l7 267 UH Kttff Ex |>»rte I P .\ Bo 06 Kt-cn V. Heymour 6 AIM* 1201 12<>i K«itb T. iAirey 1 P A B 400 4« K..ith V. I'erki* 2 Kerr .'..W 667 K. nil V. i^Kiiiiivi 1 Han ;>H4 '^O PAHLK Ol" L'.VSKS. 1 827 Kollrv V. <"oii','lilHti ...,.,,, 3 Khii lOt 7^1 Kolloy V. Hiill.K^k _' Kii r r,'.»«» v,,! Koll.'v V. Dow » All IT. ts |«r, i«w tiO-J K.llx V .l,.i„- J Ali H; . »7;t •^7t) iM\ l.tH .--,K KiOlv V Livri|Mh.| Ills. (.'.. Mil r l^n 7;{'.i K«!llv N \ViN..ii :; K.'ii i; "> i\y* |ti:!',» l\» All »7."> :,\:i Kciin. .iy V. \.l.tii,s •_» puj,' KiJ Ml l(i2 ItiS Keiui«>>ly Kx part*- t> All Xi.'i vMh lk< iiiK>04 | 7(; nj Ki'ii V. L'oiiuoll tier l:<:< tWI si;[ [\h\ i„'j> K.-ir V. Kimioii .:j Km- 112 loi i K. rr V. MoiTHoh 1 All 378 Ki'if V S<'..vil •_' IIhii |»; 12 K«rr K\ | ':i rt«> J I'li^ ((2 •'>•! Ktjrr au'l Tliorn.- K\ |.Mit.' 2 P .V H 62.'. IJ^I KtrnkfU v. Cip. I in.l .;; Ki.-v .■>H7 '.•.-.:'. K>t< liiini s. (i|i>< I son IKfiT iSW* •'^•'i Ki'tilium V. Muiriv ' 2 All '.»» 7>'. Kt'tcliiini V Mil/' M.ll A VII :!47 6.V2 Ki'U^l'um V. 'Vhv F'i..t..,ti.iii Ins. ( 'm..I All 136 '••T'.' K.toli.iiu V. Now llr'k UHiiway C... . Ilil T H7;) li>2:, Kelt;.- Kx [>urtn 5 All Ml 11 K.VH V. ThoiufHi'.ii 1 Han 2y7 ."»'<2 ■.' KitvH \ \ 1\ 11(1 iUir 12'> '.•(•n Kiiliv i:. |mrl«' 1 I'utJ 2ly MH Killo. u V. Murk.- ;l Korr U'.> -'.Tl K.iiight<*u V. 1 1 ^ii. !i 1 All »)7rt i'i2 1 1 "."• Kinm-ar v Collioiin .Ylieh T l«7l 37'.t Kinncrir v. KorjjiiM'ri I All •■I'Jl 212 Kiiin. ii- V. fMKl.ip a » All .ir.y 22'.> KuiiHir V. t.ttllaj^ln-r I Korr 424 .'>41 '»2i) 1">'.I Kjiin.Hr V. HobiiiHuii I Han 559 12t; liilt; Kinmir v. Uobinsoii 2 Hau 73 ««> nm Kiun. ir v W.atn 3 Korr 300 440 1H2 787 Kiim. if V. VVhitf 2 Kerr 235 134 573 Kinuf V V. StubbH 4 All 126 19 704 Kirk V AnHley 1 Kerr Ml 58 Kirk \ . I'ayuo 1 Korr 525 7.-«i Ivuk V rfmitli -' Kerr 187 3h Kilohiii V. rhathiiui Branch Hy ( '.. I !Vt B 215 174 Knap,. V. Kiu>; 'v! l»uu 30'.) 24c 1204 Kiiapp V. MoFurlaae J£ Di)iiiliftl Uiiiii; ▼. i;iu»*A*t , liHiH ▼ OiIIk Ik I.tlU(I«l) ' ^ p«i to I jiiwl»T I '. \ pi«rt«' Law lor * r«»lt«r Lhw roiioo \. Ilitntnond l.tXW M 11 < T M l)o\v»ll La^toii T Ailiiina I.uwtnn V ( hiutcv Lnwfoii V, OiMv . . I.RWtoii T Milli I.MWton « Uful Lawtoii V. THri*Htt Lawion \ \\ Till r L«>»r> \ . Aiiifiions L«avitt V. PrtikH LeB< 11 \ Tii<> Fi«>.lrnct«xM..n \ . II »ii»i>n Loiiik'ii V H' ^ers Laddon v. Uu>«m'1 L*c V Bret ii Lee V. Howi- , !>♦ V llowv . . . L«-e . Mxy i . i Frftlencton . Ln* V F»'lfu LffOitn V Lcrinaii . I,."!,'.'.!! V Dulfy Leiiflttnn \ . ifrthati Lt-t);i-.ii V. Vh II wart 1,*' .11.1.1 E> \"UUs |,<>oi).ird ▼ V<".Ui;{ LcHrd T. Koiibii} LMiiKT HHii^..!i Laali^ T i; .. Iif^i V . JduMiru Lfv V ▼. Lhwsod L«vria V. W<>ldon Libby V. Ndsbit L's?lit V. Abel Mfiht V, Abel Tiiiidaav V. Roae Liii(i{lv V. Hu«Hiti« T-iiij?ley v. Smith ranorley v. The Q jeen Ina. Go Linton V Wilaou I Puk' •'*■><• 101 J •J Vnn llVi :» K.rr 'J.J3 7^2 4 All sau I AH Tm 171 173 J7» a All \:\:> hta ;« P vV B ,vi(t I'iH.i 1 Han MH 4r, 1 All 613 •>|i) H.«r 2s:j 70 20s All 274 577 l*2«»a I2l(i •I All 411 »US fiai W^ ■■', All r,H) lOfio •.' Ki'iT ViO 2«1 1 Pui; :V2'.» i'.» 122*» 1 P* Ii 4«9 827 . 1 All 2G'J 8<2 4 All 111 383 m 2 Fuji 662 218 1 IIhii 263 167 604 611 Ber 32 -TVl a AU 698 .124^ 4 All 501 1151 2P*B 145 1056 1 Kerr 302 l-'-lT 6 All 406 350 EaatT 1865 627 3 Korr .')76 »'''• 'J Kerr 4 107;i 1 Han 689 '>"8 I Hail 880 732 Tf. 1 Kerr 223 »<» 428 '»73 123*1 TM'.LK OF CAHlkS. I3«2fl Liiilou ▼ WiUon 1 K«it ;J< » 17fi linton Kx parte 2 Pn« JIJ ini'.» Lip«ett V. Mi-Lat;»{aii 5 All 509 3K LittU V. t 'ill,- 'A Pun .'JM 9H H I'.i Little V. .I.>liiihl"iif 1 Korr VM\ (il2 9"J-' LiviiiK>«ti)iie ▼. pDwvll it III, Admin- iMtnitur. At- Hor 'JJ.'> '24b Ml l-ivirifisioiu- V. Hituk of Ntw Uihiih- wick 6 All 2 jVJ 366 «'.»(» Uoy 3Pu>'. V-*.. J.'»ft 107.. Lloyil V. Allon I I' .^ H ' Vj . . lt)8 i2v!l LloyJ V IIoHkinn 1 Kerr i'M 100 101 Lloyd V. Knri>|>ftiin A N. A. UaihvA> '■•• J 1' ,v U i'M •JIJ :}.19 tlTJ L'lck V. ( l«.\».lanil I All I Hi n? Ltxjk V. I'll rill" u -J \ii:?{ 13'.' liookliart V. Sancton Ikmii iry !'<7" 1087 Lo«kw> Loiiil>iird \ . WinniDW 1 Kerr 3'..'7 '.\M L«)ucli«-Htwr V. JLiri-HV y K«rr .'UU OOrt KU.f Long V. Oilberi I All 3.')» 101 1 L( ;i»;maid v. McNicbol ;J All 4'J7. ... l7 Loid V. Turn.-r 2 Han 1; ..287 .:9-> Lovejoy V. .Mi'DiHinid i Pu)« 2T.'> 2l!J 577 Lowell V. .Mc Adam 1Puk33:.. : fM Lmy V Don.. van :'. Pn^ IJ> 1101 Luiirin K\ partt) Triu T 1- Jl 16G LuKrju In m 3 P«k 1-'5 1171 Lunt V. Eftittftl»m 54'< Lyona v. Elliaon 6 All 36' 64 19:! L>CD»* V. Coram Mi.-h T isHl Up. Lyoat V. Merritt 1 All Ul 910 Lyona E\ parte All 40. 291 M. MackintoHh % All.n 3 Kerr 3t ■» 200 MaoMonH>;li- v. (tiant 3 Puj} 2'M 80r) Mucplieii.m v. Krcileruton livinrinl Iiin. <«•.... I llitn li'J'.*. M.tlotiov V I'unloti ... :» K»ri .il."! .Malnijuv \ MtMii«Mii I .VII •_•?<» . . Mhiiii V I lininix rlitiii Ilil r |H'J8. M:iii-«. lit rt). . M iik» V llilm' • W'trkn V Mark- vl >i'ka \. H(N>n -• I' .V II .•.(. . Hil I l->-.N.. iiii r is7'.v. i All 170.. . . _' K.Tr iHfi. . •J K«M Mtimh > . H>v«H'n's . MaibhAJI V Tiuii'n i-iu Iiitt ( II \l:»IH'lKti V. Winolivw . . M trtiu V l'uti M.iitiii \ OnUrt Martin V. .Miilu.ti I .- In- t' . .y .trtin»l»U« V Mm phy. . M)«rvin t. I)utt<*rwi'll. I ' .Ms lO^i .' I'tiK I". I. I .VII rtH Mi.h T H;i.j ..«. All .21. I K.rr -Jll-.' .1 l'ii« i:.T.. . . . U.r K.', .Tr.n T Hf.T . Vliutom V. Stubb*. » .VII 4*.;i Muiiht'W V. Chittn k J K«rr «')'.Mi. . . .M*lh»*v.>t V Hitch.' Mich T lMa;i. .MiiXW.l. V K.M1 J KtTi- »)'J :kl»3Ut»H V D.ilau :* All 573 MayufH -. Mab >ii»y niitl McLt .iii. J IIhii '23.. . Mit\ur itc. of St. J>.li > \ nr«t»i»... .1 I'u^ im Mhsof ito. of M. Inliii V iiMMwiii. . .:t K«oii..i Ktrr '.«. 44H. M ivyi Ai. <.f Ht. Idlin V McU,mI. I MA H l-M . Ma\'ii .tc. of rit. Joitu V. Siiiitli .. .■' \m103.. MiiNoi >V«- of Mt. Joli'i V Wilrii.t ...2 .\U ail.'i M( A.liuu V. Woaver '2 Kerr 17« . \l.-AlliHi,.r V. Day 4 .Ml H7 ilcAultv V. UtHUoH 4 All .VJl McAulov s. La vlor I All iRK) MoCallum V. PerkiUH a I'uk IM M.-.Uin .u V Pujo 2 Van tl. . MiCalmoDt v. Bailliu I All :.73 McCalmout v. MuUmll 4 All •-'•H) McCanu v. KerUn S All .Ur. M>auiu V. Ril«y » AH I'.J M. Carroll v. Biuniaii 4 All '.'Gl MtCArtl.y lu ft- 1 Pug I'ja . . . . iltCaulcy V. 0«»ad « 4 All i".^; McCauley > Lawlttr ....4 AlKUlO JK«t Mill V. Mw( KiUiy :)w., l»6**. . 1-J7 7H 44H A ^ I'JU'J It.'.' ."i»r. .•.•r;t '.I '.t.'is . .:u; 'iti ittt> 'll '.IHI, .. 747 . I <;.". 7M ; ix . 7 •.'•-' IOC..*. . vr> .1 'U.' I "^l . M'.M. '.IIM .116 HH . wo I(»V»4 ,0 :iM 102.' . . I •-'.'. .3HI . . AM s 117. .1026 tl St: . ..tXi . . -J 7-: . iS'.t . . "<2r. . . I4H t «i.(0 ..2:17 .lltl-' . , .Jl ..24!) . lO.-'j lU ' lABLK OF (ASKS. in:il l'J7 711 44H .•> ■ l-'ttJ It.J ."i-C. 'iV.\ t »H '.»:.:{ .... ..^71 ;uT irt n.t. . . . . ■ ti '•''<' 717 I ti:- ; I •* ■. I'' . 7 •.'•-' 10 f.:. •'.»•.' V.l ••».' ■{ '"<.', »v»t> -'J.. I.'. '.MM -irA) 'J<) 27-' 'i3a «3« .li" -ia; I Hi-.' ii 24!l i<»,'.i .MoCai' iknd v. Towom 1 Vim Vjr, lo.i MflClr .11 V Mr( IwIhii .'{ Kt rr 'iS.! 7m.h MoCiil iti:!! V <'..||iiin I .Ml mt |oi,-, Morii! WiiU V. .•ihifln 3 K«ti .■<'.tl 'H2 MoCm V. CiuvKrl 'J Ktir l:M jiii Mi^Cul » W ir.l 6 VII Mr. |-j3.«i MoCiil Kx piirti) I Kon VJl 175 MoDr. v. P..toni Mu'li r IH71 90 MoDor iiott V Hnll •,' Korr M\H I<1 V. (\.tliof 3 KfiT :uu oo's MoUui l>l V, Ciirnminn •_» Pun '>h2, ;i7'4. ;i7i» f.-.M H.i| '.ciH lolo MoDnii i|«| V. Kv«Titt :« Kt-i r 't<\9 -iwi i:\> M>-n I U V McAfof . .:« Pm{ l.V.» 8'»*.» M«!l>oi 111 V. Mrlntvrfl lior •JHU ^Hf^ M'-I)ui Ui V. Il\,||.r ,' K,'i rtir. 78;5 Mi I).)i I.I V. Ilyilcr ;i K.-ii -JIH .. 7h;» McDiii. till V. riioniiiMiii 'J KoiT 7(K) 7'.»2 M-|)oi 1(1 V. IIpt.,11 ;< Korr .->«.'. 313 lOtfi 1067 M.>L>ni l.i \. WnttM I Hull 'J I 732 MoEtc .ran v. K. rnuhon ;{ Kerr 'Jl'J. 3i5 363 447 906 M<"Klr V. (Wttty 1 lUn "J*".! ,369 MfKK. lev V. MrKillifjfiii Mian JJ.' .Wh McFwH in \. ('Hlliij.'liiiiiti .'1 .\ll fiHH 1:17 Mi-Kiu III- V. (tdrtlun 1 All UiJ. inl .-^ofi .'. |-i»ri«' . Mil T lM7;i 131 MoOar' v-lo >. Siiutli i AH .■.<•'.» 787 Mr(ie«' K\ part»> Mc(to. \V.tmnr«< ."> All 2;)(> 906 .\Io(}»'., Ml V. Hale a All 507 781 104fl .Mc(ihi. V «{i|l...rt I All'23.> 223 .McCJih v\ y. (inult I P .V B till 35 816 McGiv. 11 \. riu- I'li.vl. lus. Co ...» All 311 746 .M.-Giv. !i s. lljr I'n.vl. IiiH. Co. . lAlliil .")% 741 Mi(iiv. 11 ^ St_^ ii,t«i ,'< \U .i'Jtt ;>»!) S.'.O 73,"> .\U 01\ 1 , \ . riilcoiuT '• All 103 781 McCiul. Ilk V. KH«tt 1 11 1; v|irtH8 ( " . I I'ui^ 1;1M iivi2 Mc-<;.nv 11 V. lU'ttH J I'lin'.Ml 3.i 435 KM I MlG.ivs u V . BetU- KttHt T A: Mich T 1871 3.'>5 ()7S McCiui V. MoUhkI 2 PUK' 323 ft'.H .McU-o.: V UiclmrtlH : 2 1^11^240 643 811 McIlhK .y V. WiswiiU Ht84 18S2 TAHLK OF CASKS. .\IcK*y V I I mimrciii; Bk. •( ':.U. V Tuk :'"-'» 7.'i7 McK«y V rrrvk.r 8 AH 30 6.io U.. ^loK•«'n V. ha)wii KrtutT lrt.11 iK; MrKevn v. I. iHlaliriKjU*. H Kerr 'Mi'J Hm McKt'iulriok \. I'lirfl.'n 2 All 2h .ji;:. Mf Ken/.if v. M ai-hIi 2 Korr ('(.'ft a/i? i;Jo .M. Keni-,u« \ Kini; Micii T. 1K71 fifif, 12ti7 MoKsn^ic V. ScoTil 2 ILtn (i 76-1 771 920 12r>f". MoK«»uzi« V. LenniAU 1 H»n 6il 637 764 McKenzif v Wi!,.v««ll ... 1 \Uii :,Q3 .M'i 761 126« Mi'Lwd) %. ?lah. rly •< K-ri t.5i> H66 ll.iH McLauRhluj .. .Ktuii iiiw. • » VJl 17.1 741 717 MfLaoghlin \ . K:.toh« rd 3 Kerr 4'il :av.> NI.L«arr .'M> » 116? Mrl.«»»u N. Itibiuhm.. 2 P ^V B S;! .1.11 (',11 McI^eUn v. ( uukIo 4 Vll 2:i7 704 1042 McI.,eUu V. .Milvre 1 P A B 2Ul 68 168 McLellat.il v M«i*Hon 2 Pug .I'.Q 77« llcl.«o«i V. Carman 1 liau 5\J>'i 2U .McLeod\. Cuiuu iMiiciien> K. AN. A. BaiU «> C( tuppiiy 1 Han ."Jl I'.'O 4X< McL«)d V. Doi»hrbt»y 6 .\ll 517 777 .Mcl>«od V D .iiiviile 'iPmUi 72U MoLeod V. Futh J Pu({ 4.J3 I22t; McLeod V Kutli Inuuary 1873 108G McLeod V J»ti.«h 2 Pit B4:j'.i 1297 McI.«oiJ V M Millau HK..rr«l ll",'.* MoL«o.l V M. Qui, k. . 2 Puk' -''W 2IM 72m H{1> 'Jl-' M. IxsiKi V M irniy 2 ll.iii ^'.IH 31* .M.Lood Ks , »rt« 1 Pu^ 2*f6 H!* M. Leod s Pi I ry AuK'Uhl {-^€,9 !()«" McLood V. Th-mm-^ Ka-.t T IH71 'M MoL«od AMtxut<« Ac. V. Warrick Sloi niia M.L«xl V Wright 1 Pt B68 717 101»(» McLdod V. VtitU 6 All !6S 1^51 McLoon V. Lowell C M« 67 l^^*-^ ifoMkbon V, iierton 1 All 706 y'-t7 Ml Mabon t. Ki-rtm 2 All 3Jl «»6 SM57 McMab' II V. iJil.hi.- Tria T IH31 •)•■•" MrMaoai* ▼. .Ktua Ih<^ (Jo « AU 814 7^^" MMiUaii V J lmmlH»ri*iij 4 All 1.17 '•*'''■ FABLE OF CASES. 1388 7:i7 btia l_'«. 6HA 8h -It'.,'. •i;u lit* r>6fi rit)7 764 771 920 I'Jftfi 637 764 . ..HI2 76 J Vim M66 lloH 741 717 :o,v> lOOH ;»7i mt 4»S 834 904 Ut7S M'J 116? . .:!.T1 »\\ 7(H 1042 68 169 77tf 21i ii'o 4;w 777 720 rj26 1086 1997 \Vi:i 72M H|(» 'J1-' ;i»« Il'l 10«-' 91 717 ICWO U51 , l(M3 y'.)7 636 y67 :)r.6 [[,, 7;i: 1171 MoMillau V. FttuLy .1 Hun 3J.'. ",()ii 12H I'Jll McMillan v. Fr»Bt Ptjji ?,2;j 719 Mcllao \ . MoUtath 3 Kerr 116 155 McKobfrt.i T. MclJnao 3 Put; \f< 915 Mua\l>{«h "J I' it B f<7 IK) l(i7i Miluor V. Hry>l»{oH -J I' V M lU 2-lii Miltier V. Lutt roll 'i P vt H ><7 107 j Milner. lu w ..»,. ;{ Fn^' W Ill Miltier V. (;ill)crt .H Kurr i'Al 174 580 K7 '.t80 Milnor V. Gilbert 1 All .U H7 Miluor V. Mftrte I P .t B 22S "J?'.* MiUMicll V. AHtlffr 'J Keir H« 711 Mitolu'll V. ('ij|>iijt+'«' ]\vT 'ill 7.">"' MiU>lu-ll V. I^awth.T ... I Pu»{ 7'.» »>.$ \.i^ 10.>:< MitchoU V. I.awthor Mich T IH71 »17 .MiUlull V. Loui: (' Mh 70 MYA GIj'.i MiUhcIl V McM.clmfl 1 P a B 5H 5k Millt'ii V. I'arlf.- t". All 152 77 « MutfU V. I'arlfo Ka.>,t T 1 H»V1 lo J7 Molfttl V. I)iijlin(H.'> I Han 21 J-'i" MolT.il V. hunt 2 I' A H67;« 12S.4 MoiJl^jiUierv K.\ purte 3 .Ml 149 l>^f> M(JUt|{i>uiery ». McLeml B.-r 'Al^ lUW Muiit»{oinery v. .McNair 2 All .'U 24 « Mix>re V. ^)^|(^eu 1 K«rr 27n 'tU- Moort" \:\ parU- H K.»rr .lOr. fit HMh Morau v. (Jalla^liM- 1 All 21 Ill I Muraii V. Laird •> Kerr lO.J 7"> 1 P."^ Morricf v. \Vil»,»ij 2 Pn^ 226 -^'^ Morriftoii V. A1I..-0 J All 14.» •'W4 il(il MornvHj Kx parte 1 All 'MS OW Morrjtv.u v. E. A N A. lUy c... .' Pll^: 2'JJ •i''-' 4:U Mornin>ii v. Gale 1 Pu^; iJ'.J ;t2l Mornwjii v. Kyle Kaal T lH72 21 '« Morriaou v MjAliwu 1 Kerr 0.i<» \V3A MorriBoii 1 . .McAlj'iu 2 Ki-rr 'A6 ;U."» 7(iH MorriiKjn v. Spurr li All 'iM 221 2!;» »;«:> Morrow V. lliwuiltou Hil I \>*Vi «<> Morrv.w v. W at«ruuf Kuk'iuo Co. . .2 P ,t li SOJ l2tM* l-nH» 1300 Monw Kx parlo 3 Korr 3n6 177 Morton V. Banl.-tt 2 I'uK 215 '••31 MoMV. Kukpatnok 2 P * B 220 727 Moultou V. Dibble Bur 128 1032 Mowry tx parto 3 All 376 377 686 822 Mairhoa.1 v. Arlw 3 Puk 283 60 174 MolJi^on V. B«v.rid({« 2 Kerr 632 l»l Malhorou tx parto 4 AU 267 288 8 n Mulligan Kx paiu 2 .VJi .'.8;i 'J77 T\HLE VV CASKS. 1B3.". .Mullijiuu E\. [lartc .*, All 381 277 ilulli^jau Kx part«' 'i \\l oS:t 277 \Iiilli«aii V. Haiiisforil '2 Han 1 152 41(1 Mulh'ii V. FroHt 2 I' ,t B M,a i^S'i M»lli>', V. Ktmt) 3 I'Uk;3HJ 587 Miinliii' V. Parish of Cant4.rbiiry '2 I'ii^Ihh i23 Munliisdii \. >[arMli. . -j K.^ir »'.(».s 798 Murphy V. ( lum- ;', All s;j 781 Murphy V. Kilh i;,mt T 1H71 :\r> US Murray v. (Jilh.trt 1 Han '>i'> 157 Murray V .lulniHtou I All HKMV.I,- 177 r)t8 1270 Mnrrtiv \. Sci'ly«» J Ki-rr 21 '2 307 Murray v. WilliHtou I All •»'.»-> H.'i'i H59 Mutual Ins. ("o. v Porti-r 2 All TM) 213 My<'rN V Smith ■» All 'iHH 207 191 1000 Myt'i-H V. St. Audrews hmiI Qurhcc Railway Co '> All .^>77 ,20 MyerN v. Smith 2 All 20;< 491 Myitrs V. f^inith .t Murray •» All 2<>7 1000 \apiir Et parte '^ Pun KM N'api.-r In n- Cast- 2 Vn^, 300 Napier v. l''«T>,'us<>n 2 P A H 2-';."i ll't. N'uy V. < »wt'u Bi«r 377 NhmIi v. D.vor ♦') .Vll 10 J 720 720 .•)23 931 1209 809 15 Naah v. <;ihl).)n I All 17;) 214 Sfwon K.X parte Kint T 1833 12 65 National fark Hank v. Klli>. 2 P .V B r.l7 1282 N.'il V. Jack ;', All 237 1.51 .Vein V. Keiil 4 A1124»; :!20 849 \«'8hitt V. Mi'Lcau 2 K«'rr."»(M ?<• .N'ovin V. CluHhoim 1 P .V H 218 898 X.uinH V Schoetli'M 2 P .V B 13,-. 1296 NoverM V. Diufy 3 Put- 13»', 319 Neveni v. rraverH K i.t T 1831 101>.5 Neville v .ToHeph Hii T 1832 74 r>H('. Ml Sevens V. Cole llil T IH7I lU 11". 1039 Now Brunrt wu'k .\8h. < u. v. .Xusley . . 2 Kerr IIH> ... 23H New Bruuswiek A Canada Railway and Land ('oinpauy H.\ parte . I AH 37fi 118 Nuw BruuHwiik iV Canada Railway and Land Cniupany In ro 1 P A' B 0G7 879 New Bnui>*wirk A N. S. Laud Co v. Kirk 1 AH 443 629 843 940 N. w lativ K.\ parte ' ".^ Puu 78 879 New BruuHV.-iok P.HJlway Couipnuy v. MeLeod I PiV B2J7 327 n 1836 TAHLK OF CASES. New Rrutuwick Railway Coropaoj V. Murray il P .1 l» 43 . . New BriuMwiok llailwav Company V. MurrHv '^ P .t B Hi . Nt'wbnry ». Younj; 1 P .t U UM . N>ch»l»«>ii V. MHrk<4 ,\ All '21 NJcliulHon V, Nywliu :\ I»nj{ 'ilO . . Nice V. Coyle Mil T. \H:\i . . NiloH V. Burko 1 I'n^; 2M .... Nixon T. UotuHvillo Mich T 1S71 SohU' V. HilliuK- .1 All Hf, .799 .'H IH4 707 llOl 80 881 788 68 id:, 413 »A .'.07 7SI8 NobUt V. Teruple I Han 274 123y Nowhn V. Anaernon 1 All IU7 830 Nowlm Ei parU' All 141 28C Nowlin V. Uuach '2 K»«rr -VM '2'i(> '221 Nowlm ▼. Si.ttra tl All 'ii:> i'J\ Na>j«ijl V. lUrron '2 All (VJl 9'J H".-. NaKonl v I'arkn. fi All MH \'2^)^) O. 1 i ■' ■ O Hriuri v T*t« '2 V\xn I H"*! 7h4 OHrieii V. Wottuore I All .V.t4 IM O'Couuer V. [.and Co I Ki'rr 2:C, :i;U O'Conuer %■ Molt -' K.-rr .Vm I'M*') liHll «rFlahony V. D.-vme 1 All 13 1 1211 «>K.-f.' Kx p*rt.. I Pit !l I SI'* On-ien V. Il..ur»;.wn '2 !»U){ 3G.'» I'U 1 O'Uary V. Graham :. All 10.'. KMs K )'Ii4'nry s . Slyiiit7 OlivB V. HrlyJa J Ml 46*J .U2H DliTer V. Campbell Hil T. 1871 78.1 OliTT V. Klhoi '. All -Mfi lti<; ()'Itui{ai) \. Berry mout 1 Kerr 167 lOix 0•I^,^all Kx j)art« :« Ml 2tn '^87 C'Regaii V Uohinaou :< Kerr 2.3 » 781 Orpwixxl V. MorriMey 1 I'utj 1 i" •'»-".» Orpwfxxi V. MornMty I PA B .'< 0^ooi\ V. Hatch. . Mich T 1872 Oulluti V. H« 333 Oulton V ('art«r 4 All 169 Oaltoii V. H«w».m <> All 180 Oulton V. Miluer 3 VuK 'i'*^ Oaltou V. Monie *i Kerr 77 Oult-.u V. Palm«r 2All:J»>l 188 793 lUH Oultoo V. He.d fi All 28.S 9^ 1 Han rjH 63'^ .90'.' .079 .9P.' .718 .702 .114 .523 .798 Oalton V Scovil (UithouiM«v Hirkmaa ' H«" •»'* .Il7'< TABI.E OF CASES. 1887 I'aliru'i- \. DiiiHiDon* 'J Piii; l.'.O iy'2 707 \(yin I'uluuT Kx (larto 'J All '.38 175 I'aluiiT V. lionm Berr 122 -JJc 74 Palmer v (liUuTt 1 All r.nr. (333 9*27 raliiifr V. Turner .'1 All 'i'Jll 574 Palmer v. Wilhiu :< All 443 •J4'.t 'VJ CH4 I'airnt t. CoiiioIjhom Bcr '2.1.J 120.". F'ark.T v. Kiikjlan.J :i All :un 12M1 I'arkH Hx partf :i All 237 .'.sr. S13 Hli) Parkliill v. W.ml J P ,^ B 2J1 1221 Parloc V. Aijn.Milf mill hm. Cn ;< I'mj 476 723 Parr.'tt v. He, at 2 Pii>; 434 414 i'ariitl V. UoliortM 2 P A- B 3HM 1033 I'artflow V. S-riith :j Korr 349 103y PasHmon< v. Tiirti«>r . C Ms 103 1023 lOGl I'altoii V. Iliir.liiii; flast T lH7l 34r. PatttTHon V. Pattcraoii 1 All I'.tO 1004 PatterHOu v. TupL-y » All 292 .".•-".t 229 23r. Patt«M-Hon V. Tiii«l.'y '. All r.:.3 482 ('.56 1115 1205 PaltorHoii V. i;il».s K-ist T 1831 634 Pattison V. Mayor Af. of St J.diii .2 !' ,^ H t)3»; 1280 Payiio V. Frtnluri.-t .11 |{a, . I "o . . . Mu-li T IHTl 12(W Paynou v. ( ;oo.l 3 K.rr 7'.' 307 4 17 {><'.* 557 IVarnon v. Kui^stoal Mi.li T iMf,-. 1023 PeaHe v. Mc Alooii I K.>rr 111 1222 Peck Kx paru< ... Hil T 1871 300 IVok \. Hurlit.iio 1 Han 51 -, 300 Pfck V. Kol.uHou 2 Kfrr6><7 lol 1107 Peck V. Tiugley J I Imi 4 1 s 184 P«H»lt! V. Kobiiirtou I Vll '.1)1 224 Pi'lton V. Toiiiplo I Han 27 J . '>17 lUS 6.58 10.36 P.«pp««i>t V. JohiiHtou 1 P & H 502 ;US Porcival v. MeK.M»-:ic I Knr »9H 485 Perkins v. Th» K iuit»t-l ■ In- 1 > . . 1 All 562 742 71M IVrloy V. Dii.hlo I Korr 511 ti'.t7 Petrli'v V. i lowanl 2 Korr 5 1 h 227 Perk« lu re 2 Hau 121 711 I*erry v. PattorMOU '- Put' 367 72 56.! Ptit«n* V. Urysou 6 All I8:t UOJ I'wtorH V. Drawyor 3 All 4;v2 7^6 Peters v. Hort(.u 2 Vim 176 252 Peters V. Irl^h » Ml 326 248 616 PeU-ra ▼. I'orley -' -Vll W5 197 Petemon v. HardiuK i .VU 583 39 982 Peliy V. Hammoud 3 Kurr 6d6 10«)9 rhjlips V. Diokeuaou Trin T 1831 1154 Pl.iUph V. M. John W:»t»(r Co 1 All 21 16 386 IMMH TAIU.K OK CVSKS, I'hilpH V l"riu'm»n A I'un ayl i(Ji I'l.-kfknl V r.-titral Hunk '. All 17*^ «04 5S1 I'lck-n V iN'tkuiH 1 Hull l.U 31 BO:. Pick.'tt V. Piokotl 1 Ilaii l.'.O. . uyc. l*iil»;ivm V. Miilli)i;»!i Put* v. I [till Pinutfc \ \VHt-*iiHf rrm T 1H71 19,; . •-' P<\t H ar. 22n ;! K' IT jr.i Ma Niiil.fr IHt'iM i((7«*,! -Jfia P.illook % Uitohi.' Poll.H-k \ Sliort . . Pi>iuiir«'s V. ProMiK'iul IiiH. ('Tn;*rf>H \ MiiiHs In-. <'ii ... V>»A V. Hill '.' K.i-r I'^l PorttT V liuniH I .\11 im. . . :< Krrr :?'.I :\:,\ Bit '.'T".! I'lo Hil r \H7:i r.(H 7»'.t HM»', .:< Pu^2ir. n(t7 .'-> p.v n »v-.i 12% 77S 201 ,164 P i Vwii II . . l*->urnfi \. ilanliti^ . J Put{ 12(). . I*i»arri6r v. Unymoii't .1 Hmi M'i. P.-well V. WathoM . .-.All r,^ . . , P2. PoWtT \ .lollllhtoil I'uWtT V Hlii iiMiii Pratt V. Ti»|»l.v Proscott V \V«ltti 7*;i 7'.»7 927 72»', I.".", t'ltin 70.J . .»;■.'.» 707 ... :aM 667 \m:, .2 K.-rr W U;-|2 Wo.K .6 Ml 21(t (HYl H5S .;i Pun U\.\ XM\ .2 !Imi 2;M •■..«.' Mil '.tl'.i pifiS .1 Hiiu 44 'HI ..-. All -'.iJ l-^'.' . 1 P.t H 71 UH.' Vttv.A'iy V. (iilleHpif 1 P .t n ly.-. I «H 601 • '. V ficViui ...2P.V:B1 7:x r- ,t -4iuu. 3 All 2".t'J :»20 826 li', *; . Cmmi) B»y ('tH:«iiul>*«r 1H7I \W\ rifi ! i .. QuttUtc iiiir>2 Kiiiikiu V. Lrtson 1 Hau 2".i 102.') Ilankm v. Mitrlu'll 1 Han 10.'. ' 315 121t Kunkin v. WoMon ti All 220 920 R'niiioy V. (Irc-'ory I Hiiii IV.* 756 Haiiiivy V. Moriiiw H Pui,' 270 17H Kfitvlifonl V. Oih'H 1 Kt'rr Ij'.t •572 Hiitchfonl V. (intlitli 2 Korr 112 2:{0 Uiitclifunl V. Murrih .< AH 215 1'Jl Hay V. i)tBri«a\ Midi T iHCitl 05 Uayiuoitil V. Caldwtll B All .Vi 55 U»yinonii2 :»0'.i Il«»d V. Smith Uor 17:5 097 1201 lUiotor. \i- of HtiniptMU V. Tilu^ .1 All 27H 296 121 H.S9 122 1 IvtH'tor, Ac. i>f St Ann's (huri'li V. Haoon 6 All IM ;Wi '^'-^'^ livclor, Jiic of St. dt'iirj,'*! ('h\ rcli \ Coiijjlo 1 lUi. 609 296 33H 1204 itoctor, Ac. of 8t. Sum'Ik.ii \. linte h.tt 1 Kon- 5;57 -9i> Ueed V. llulHfonl I All 476 •■<72 Ret-d doni, Hurciioll v. Browu 2 All 168 866 4«5 50() Hood V. Uardin>< 2 Han 1:57 319 Reod V. Kavaua|{h I All 457 32H Heed V. r.oonard 2 I'li^ 85 1026 Keed v. MoI.aUf;hlau 2 Hau 12S 74A Hoed V. rhilips 2 Han 172 746 K««d V. Wtldon 1 Han 458 941 UM)d V. WiUon 1 Kon;i6o 1042 1.H40 TABLE OF CASES. ■ 1 1 ■ : i Rt»Kiu» V. AlU>u 2 AH 436 blB Rttgiii A V. A pplobv Hnr 307 JTfi Rt»Kiu»i V. ArcliihHl(i 2 PA B JSO 2H 33'.' Kofi i{«<)){iUH V AnuHlroin{ . . C> All 81 H18 K«*):iim \. A>'»«*t»H.nn.)l r»i«H iif Fr«J- ericton 6 All I 11'.* Rtyitm V AwM-wMn-x KhijjJi Co 1 Ilaii 'i20 l'2n» V Brown 3 All 13 -103 U««K>iiit V UnchniiHii 3 K«rr f>H 114 QW 8 6.W Htjpua V. {.aiwiuly J All ♦■t'J3 i(M) UeK»"* ^ ("liHtiilUT 1 Han "•IH. ... 271 RoKina v. CliAMiton 3 Vim .■>46 117 3y7 JO'J R<-t;iuH V. CommiMiouerH of Gcr- m.iiiU>wu Laku 1 llaii 3t:t. . 118 130 30 680 lU*t{tua V. ('(mnniMtioui«.J tt'.»N Ht'>{in» V. ConinuHMiont'iK of Sowi fh for Hopcw«ll 1 I' 161 301 ** V. ComnuHJiionerfl of Kower a^o St. John 1 Ilau 3 877 •• V Cormier Mich T 1865 lO'J V. Crcfjut 1 Han 30 U'jy V. Canard Hur 326 3. Dow 1 l'n« 300 '^74 " V. Duvatiuv 1 Han .'Jl 8o7 877 " V. Kyre. . ." 1 l" A in«H 4lo •• V. Elatou iAUiJ 3»« •• % . Kv«letU o All 'JOl, ;i-.»5 398 •• V. Feuuul) 3 All 13'J 394 40'i 103C • V. Fer^uiiuu 8 PugfirJ 407 5G7 •• V Fer«u«ou 1 P A- B 3 i60 '• V. Fl«well)U« « All no -«'J •• V. Flynn 2 1* A H 3*21 «>1 .. V. Foley Eo-t T M.i 381 639 •• v.Freucb 2 Kerr IJl 819 •• V. OalUul 3 All 11& 588 589 818 •• v.Gerow 6 A 11233 "13 •• V.Gilbert 2 P A H 619 »286 " T Gokiiug 2PUU385 M '^80 lOSJi •• V. Ilaiuinoud I Kerr IBl 1028 1H>* T\RLE OF CASKS. l;141 iN'UiiiH V. iiiiiniiioiul 1 Ha V. n(»r|..T '2 Al ii "riis 1 All lIlU-slllllHII T nil V. llHrKliiiiiiii 1 I'll \ llHr-^liiiiHii ;>[ici ^- HHitt Trill \. ilatlii'WHV i; All V. Hi>rlv«ri -J Al N Hill :. Al .Unl nil' V.J. I" N .ln«*tic«'s (if K< lit ( 'omitv V. .FiiNticf". (if Kii All All Al >c- .-.• V V. Jii«tirrM (It .NditliiiiiiU- litlld . . . . .( M V. .Iiistioes (if (.tiitifiio '.» P \. FiiHtii-es (if Wi >tm()rl»ind.. 1 Ha V. .IiistiiH uul\ (■) >i. 1 U'V ... ! mix iiiiii luw .... >t)i •rx ;j •1 AIJ r 1 i:t:< . l»>- 1 1(M» ..W 711 T l«(is r,-2: i« ••U7 .(»(•.. . .. 1 T 1M7'J SICJ •iM3 v.'.' T l.s;i;i U>'. 1 .iMJ . . .. MH 1 fJ7 U'.» 7.> 1 I'l.'Sd . .'V.t'. 1 lit.'i {•>H '2'tl 1 IC.l 3'.» 1 1 llK 7(H " ."ri.'i ■'7H s ■» M7-. il l"^-! «il.- «ii tr>H . . ."JO'. 1 '.Ml •.'7;: ;iti7 ...V. 11 M mil Hi -2 . . . 117'. rr i:<7 . 4H:i iVJfl XV, . . .-lU \ H JSK .lis it;7 V 15 I'.M ti( i Vnn vx\ .«»♦) 1(17 tid .■.r.fi r,-j \. .Miivor (if St. .fohii :'. Al V. .Mc.\\it\ III -Mitiiitliv.l Fu V M.Donalil 1 All -.' AH •; All MaifOf tOWHIl. V. McGoWHIl 1 P \. M.-Iiit.-li 1 Hi V. .Mc[.Hii»;liiaii .1 All V. MoL»'Hii 1 I' M.Maliuii ;j AH . .Mf.Mill.ui •> Vn \. .Millar -. All V. Morrimiii 2 F V . .Mnr|>h> 1 Kt OF t fir\ ■A V \. Onltoii 1 All V. IVrkiiis Trill ',» I'll 2 Vu 3Pu Hil' lVrl.> Pftrrv P..toiH Pttfi- V. Rt-i J V \. Rol».>its ."i All I'rr ;)».t 1 M'A 12»1 lU' I'M. 1 1 4il ill.'! « in. 1 ti-t ^ lit B I'll .."•111 ' \{i M'l ,-.:■? r.7 I l.">'.t ;{!t;; ," V H .{77 :!'.I7 4tia 409 .' 1 12.'> 11 i" 1 10 "7:t > H- V H »W2 .... 1 •. rr .'.24 '- n '2U I .Ml H 1 269 '-i T 1872 HIO 6 o I4i» < ji a-i2 11 u 77 1 T 1S7H H i>; 2»'. ' 5:U H 404 1 .".t 111-.' MNi H22 7o:{ to4 ,S8.-| ■>CH i;t,-. 4«M'> 2H,S '0« 291 82:i ■119 i»5." 1211 184: TABLK OF CASKS. V. \. V. X. M.gii.a V RoU'i-Uou ft AlllllS 412 661 " ^- »<>»«' 1 lUn UC 894 " » ^*'t«'' M AllH'Jl 635 HIS 5^»>t«'»^ 4X1151 IGC '^'*"« f. All 08 87H SinillK.HH 1 Ph^ 15y .»,,;{ j^oy ^l**'" 3. MI l'2M 4W \. HimpHoii 1 IU„ a-j •J09 " V. Six HMt. lUiiiH 3 All :W7 427 X. riiHTh <.f TmiU'i Uer 110 51 ^- Hiimll o K.rr IH. . HlH ■* * H«>M«n- 1 r A B 61 1 10.-, ID'J .-,4-,7 V. H|.»iT..w .1 Hr„ 1 13 2.HT r.lT '.i<|- 1113 T SU'Hiliuaii i llai, ;t66 ;jfi 1 K21 V. Ktrift I K«'rr .473 4 J2 l(>;i.'i V. Rttirjit-fji 5 All .'»32 '.isy ♦ . fitilliTan 3 I'lij^. |,i;, .17H 64a \. '1'h|i|»-\ 3 I'lij- 17 3".»2 V. Taylor .*, All 'J l-» U3 75H • V. Tliomimon 'i lUn 71 40A V. Thoriitin 2 T ik F I to 411 V. Vajl .".All Hi.", 21MJ V . WrIhIi •.' All 3H7 3«« V. Walnh :t All ;>4 3UM v.Watt.rM C. Ai: 109 '292 \ . \v.').».t«r 1 All 5H» ayy V. W«'ttnor«j ber '244 16*2 \. Wh.lt'ii 3 All 'if.'.* 90H V. WiUiMton -'I'.vUU'i H3I V. W.-rtman . . 4 All 7;J a77 H'21 •• V. Wright IPAU 3IP \>\ 576 :,7H H*-M \. lUrdinjj 2 Han 137 ;Jiy 1{»mI1> v. »ud et al Kx part-i> I 1'uk •i73 804 K< iiaml ft ai K\ parte A Vnu 17."» SMi lUiiaad N. Keswick 1 P A M 3 . 493 1130 H«uiii« T. FUukiuc 1 All iVA) 113 Rex V. Brntea Trin T 1832 411 • V. B«nn«tt Mich T 1825 696 • V. HaaviNiJe Ilil T 1H33 286 805 *• %. .luaticth of NorthuinU'ilaud.C Ma 8 712 872 - V. Justice., of York Hii T 1831 9Ti •• V. Mayor of 8t. Johu HilT 1828 3^8 •• V. McLaughliu Mich T 1836 276 412 "• ». Mor»e C Mi 2H 117^ •' V. Munro Eaat T IP'U 411 •' T. Shwitt ot Olooeau-r U«'r 187 1275 TABLE OF CASES. 1848 R«x ▼. StirliDK Ber 2*2 «97 •' V. 726 Saw lof;H Triu T 1833 648 " V. 162 piecosof TimlxT Bor 110 61 '• V. Vail Mich T 1826 69C " ▼. WatHou Hil T 1828 7')8 •• T. White KiiHt T 1831 697 • V. WiltKii Ber 1 113 424 56y Beyuolda v. AyruH 5 All 3M3 481 651 ReyuolJn Ex parto 1 Pu^ 776 12 UoyuoldH V. HaiiforU 2 Kerr 111 110 Ki'\uoldB V. VttU^hau 2 Fu« ir>'.t 21S RjchardH Ex parUj 2 Hau 131 685 877 Kichards Ex |mrt»' 2 Pun 6 287 IlichardH v. Short Novembur lH7t> 108(» Hideout V. St«iv«nH 1 Hun '2m 348 Uid.Miul V. StickiH-y 1 All 3.">n lO'J 'J'X\ lifil.\ V. Mayor itc. of St. Joiiii. . . .ti All 78 ^M 561 574 HiuK \ . Pii>{HU;y 2 P A B 303 13(; Rionlmi \. Dunn 3 All 121 66 l'.t5 UipiK'v V. Austin I All 77 56 r.»7 Uitcln.' V Boyd 1 Ki-rr 261 10 Uitchif Ex partr 2 Iveii" 75 1031 Bitchif V. Portfi- 2 Ail 360 1% 7hh Bitchie V. Shfhtf I P A H 5'.l 21:! Itoach Ex part*' Mich T 1871 '.(O Roach Ev paitr HUT. 1872 'Jl iloach Ex part.- \U Stockton 1 l*u^^ 1 12 Roach Ex partr lunt- 1871 10M(. RobertH V. Wathuu 1 All 2«M 7h 656 RobertH v. Wat»ou 3 lUr ill 1151 Roborth T. White Trin T 1H31 354 Robertson v. Ai itistrouj; Nov 1870 1081 {tobtirtbou AhHijiiicf lor. ... 'J K«'rr i'.w •.»•.»« -.m.! ll<>l>iti.«M>ii N Till' Ncxs Hr«iiiHWi('k CitiiKiU |{miIw»> a I.Mii'l l\i ..'>AII«i;u» 77,; Klibiiimiii V. Wilsuu :i Kerr .'MM lir, U7 K<.>{«'t> % ntiiitin 'J Ki-rr 'j:»'> um lU>t{vm \ L.«> a K..I r »'..'. I ).l I '.♦•^l Rom* ». Mnrnli 'rnii T lM'i7 >MA H«»Ms \. Ilaiiiiniiutl '.\ Kerr •l.M 7G7 KoHH Kx |»art4' "i P A H 'Ml H'J i l:..urKi' ▼ Kf-.^li 1 Ail a7n ir.»;! Hoiirko \. Mi.-( iilloinjli I All :iGl •.'•J Hourki- \ . Park^ . 1 P .V M :. l;i »'.»:; KowHii V. Hurri*«>ii ... .'J P»n ."MM 7'J»') KowHii V. Turiu'r 'J I'iik ''''^t 7'i»'» |^.^%^• V. TilnH I All ;i2(i V.» »2H 1.17 r.sr, Howell V. Kiiif rmiti J All l.V. loj l Kufl V. H.f r ;i All H«i'.» '.»22 Uuel V. HiiiiUi I I?»ii tUH". 121 Kuel V. Mi Klr.-x .« All JIJ «>;VJ Vdn 12-J». HufI \. K A N A K y f. i ru»{ Hi 17u KuHs«i V. KiitlH-rlHUil (■ Ms '^O (til U\aii V. .Uiuts 1 I' li--' tMo j;.";? K\*ii \ . Jniiu-s J I'xm Jl'.t .H«J!* HvMi \. .litriieN .Midi T M7o ■«7'.» H>an s. Keitli .JuiniHry Im«Vm U»77 Uywi V. L..I khart 1 I'uk' l-'T I-.*" ••TJ KC.i;! Uvaii ^. Miliitvrt- Ilii T IH70 178 n. ..I'j.v. Hi. .\uiiii \v'^ Cluii> ti ». l'cii,'UH..ii. , I ll.tii ■.'7 > .•^t. » Clnircii v. C'(nik{i«'. ... I llitii •Wnt '2'M\ Kt. .lulili liri(l(;(' Cn.. \ \V. V. CUrk*-. .11' A ti ;}(»7 »«3 Ht. John MiihiK-usifu Brul»{e Co. \',\ imrtv ;{ Alll'.Mi IIH 7fia Si J..I.I1 \S liter Co. Ki j.itrl.-. . . . . li«r \2H I'M> M. St«'i>lH II Uaiik V. N H iV I' K'y tiUii land Co ■> All »•>•-'•.» •^'J ' St. Stopluii lUiUay Co. V . Klotk . . -' llnu i:v.» iUi JJ^ SJ" Smijufl V. S«uu,lifH ti.r-21'< 7«:« 791 Saudttll \. G.k1^.h> I All 111 ft? iM.il KMJ 8aua» V. ltc«t«r •'< Kwrr a'i*.* -i^ < Snrtull V. Scott •'• All IM "'♦'l H»N«*{c V. .Stiu;k I 1' A 11 f.«M «7» 689 TABLE OF CASES. 134". , 1 1.. 177 l*)|;( . •-»'.»« 77.'l .III-. 117 . i<.);i I7»i lo7'j It* l*.«H '.tit. i;t;i »"(t.*i till '1^*1 m.\ 707 H'2\ M'M • * • . . . •-»•-' I'l:; • • * • .7'i»'. I'.t IVtt" I i;«7 ."»H.', Iir'l .T22 I'ixl . . ••»•_• irio 17(1 J'w 1 .•>i(i »l.'>7 .Hl'i«l :i7<» 1077 ,i-.n» .-.:»•.» I7H I'JS.'. .a9<> . 7o»5 76«» .593 llf^ 7»i.' I.U) .♦v»:« ..■_'l»i trA 3-> .7m:< 791 .»17 io:n 104-t . v> 1 1 .-ifil .579 689 Sttva^jf V. Sic .Savn- \. (iill K« M» H III Shmo v. Sun SiiMT V. Siiii SH.vrii V. Htet Schdlil V. Kt Sc-hotioM V. ( Scott V. Cliii Kuott V. (,'iui Scott V. (iiiiii ScuIIki n. r SciiiiUmi \. ( Kcoiilliir \. W Sccivil \ . I'.nl Soriluu r \ It ScrilnHT V. (i ScrihiuT V. .^ S«-HiH K\ |iur Sj'hI" \ . Ciilii S»!»rh V, PhIii HOHTH V. KilIti Ki't'tinl \ . Ore S»«cMint\ lii>. 8«ely SwJ S.»,l Seel I' V, W V Uli Kfll njit a ■rJM th -J til : l.VU*» •*> IV ■' (f il)t«iii 1 ki- '1 \ \ ii'tt *.' Il\ H iVil, Sowitll V. Hur|K-i Sowull V. Oliv.-. Slittrk)'\ K\ |)iirt«' M Slunj. \ . Coiiiu'll -i \ Hli ar|. Mlitir Ltiwiuijcf McKt'Hii. . M Sliar)) V (iriiiil. Sli arp WiIhoii . . .B( HlitHldeii V. Smith V Hliepi'cTtl K\ parti' V.' I Slu.p|.iril V lliilltlt 1 Slitippfril N . SlinnHjnl i I Shurlo<.k v McCictj Hliurlock V. MclJtf 1 A 8hitltl« V. .Mc(Jrath IJ SidUul V. IJ.^l 3 Siiuuuch V. Siiuoinl> 2 HiiuuudH V. Travib 2 1 I'.V II 150 101 1 K.ri •.>•,».'. ; 1» A in-,77 ! All nji ...177 115 lo;f. l',»H;t VJH- 7.! All 11 1214 I' A B :{7 750 1' A It 5:j .. KMO 127'. ill T MJ7 loi Ken M"! . . .:i:{5 515 .Ml -Jiti loH :{47 Ml n'j 1031 Ml ;il5 . . . '.'27 Korr I.T.' Ki-rr 3().'t I22;t . . t>5 1 772 AlUt'.il .il i;tH 57t'> •*<»7 '.11'.' t"9 KiiT 125 icli T l.s(i5 I'.M 1227 Kerr 5'i I j|. 110 .2 1.' 71 .(07 8I.< 21 US .T ;t'.io Mh IHti. . . . . 1115 773 I'liu 171 1018 Ilau ly r-.m 1117 i'lig 15:;' . . . .* Kerr 5(Ih 61 ;{62 662 1)72 Ml 116 :t46 430.. Korr ;iy8 .78 266 184 f.2U [HYJ Kerr 610 7U2 Ml 168 .. •• .")6 I'.iti 304 IJau U 212 1846 TABLE OF CASES. SimpBOu V. DevfU-r I I' x B aHi Uft6 Simp««u Ex i>art<' 2 |»uff HJ :,-,2 oH'.i 1270 Simpton V. OJas-n I I'u^ y«» 330 Simpwu V. UcHil I All d'i IU4 Sinclair v. Sjhmuv 2 Vn^ 263 U J4 SimiH V. Ilaininoiiil 1 llau 332 377 S innoii N . MrrrithfW 3 Kerr 2H 1 2«7 SkiuiuT V. McLiHxi 2 Vutl 131 9i 382 Ti'i 8loau V. Dhvih 2 All f>i»3 80:1 8Ioot V. Kennott Mich T HJ7 Mich T 1872 270 31ii Smith V. Duuimm 2 Kerr •'>:«» I3»» ,'>«! Smith V. Puriuii 1 All 2r.3 UKi't Smith V. Kri;hii 1 K; 12.'. . . H'.t 37(» .'.r*.'. t',21 'Xl\ 'XA'j Smith V. Hill 1 All 213 223 Smith V. Hutulxjrt 2 K.rr «Vt>2 131 Smith V. IiM>lat4'tt Uitik an4 283 « 11 'Jl.> Smith V. Ia; BurKue 1 All 2t'.6 1244 Smith \. Millar 6 All :W6 263 Smith V MilliiVe 2 Korr J()H »36 6:iH OVJ Smith V. M "ttu 1 All 210 h:H) Smith V. Morriwou 1 Pun 2 SnodgraM V. .lohmitoiie 2 AllMO 356 8«0 SnodnraiM. » . Wilbon 1 All 373 'i*.>9 South Bay Co. v. Jewott ■. AH 2i7 9M Hymou v. Stewart U«r ll.i 'ill). . . .664 101 1 1098 1237 TAIJLE OF CASES. 1847 iifif, 552 5H'.» rj7() 380 1U4 'JJ4 3?" 267 94 :»82 722 802 'M> an i,n ".tlT IKXI y32 1271 til aci 167 36H 1170 270 :ilii I3fi r>Hl KMV." UNM •.>:(!. 121 rti .'.i;.'. I'.'-M 'XM ".tn'.t 22a 131 h)7i> 186 »w: » 200 •_'8:« i'Al 'Jl.i 12H -.'ti.t . . . „ i.Vj 6:w iU'j HM V,f^i J24 lO-.'l lltH'.t \*i\\ .r.'4 7i;< >i »JH 8urt m M rjytf 1080 3S6 ;<>>o "/.ta "]] 3a6 W4 lOU 1098 1237 Sp.'iicf V. Trt'uhohii 1 flan 77 y.^i Hpia»;nf v. Kni« 1 P .t R 241 324 Hjuajrue v. MatlicwH Ror {Xi 78a Sjiriiij; Hill MiiiJUK <'» v. Sharp «t nl 3 Vnn 003 1 10:, Spur V. Allwrt Yininj: Co Kast T 1H71 322 JiU «33 y2.'i Spur V Albort Miuinc ('<> 2 Vim 26<» IHO r,\'A 1033 Spur V. Allirton 3 All I.". 1 ill i2r. Htatnt V. Athertoii :j Tug HniHii \. Kt.lxrtH. ,11 2 1' vV: H .")S(i 12'.)2 Sti'fii V. HaiiK..ri I All I.VJ, 589 -.'ill .(.'. » 1072 StrfVew V. lIopptT 1 All 3!U 21ti St<»'V«h V. l.ticH.H "2 Ptif< 70. . . 382 Stm-v.s V. Wilw.ii 1 Puu 18.) 112K St«'fV..M \ . \VilH9 moI St:ve»M V. Hamilton 1 Han 3.*>."). . . . • 370 Stt^M'iiH V. Kl»^{l'^^ 1 I* vV H ■)! 367 HteveUM V. Hyan et al 1 1' A li .'. 17 368 Stevt-DHoii F,x partf 3 All 391 si 1 St.wart V. .McDonaM 1 Kerr 52 95 Sfvvvait V MrKarlaiu- I All 233 584 St.wart N . i'Mrkii 2 P A: H 223 953 Sttwart V. St«wari 3 Fu»{ 59H 367 Stilea V. Rrtwstt-r t All 414 19 618 Mil 1215 StiUih V. (iill..rt 3 All 262 7H9 800 StilBH V. f}j|l..-rt 4 All 421 517 521 681 Stil. H V. Oilhoi-t 5 All 166 369 Stili-M V. K.iv«?r 5 All 285. . .- 451 Stookton Ex partw. Muh T 1871 356 Stockton iu r«. Ex part« R<>»ch....vl Fi»k 1 »2 91 '271 Stranr V. ReU Rer 287 82 9M RtrMt K* parte I Uau 107 126 SiM^ V. GlahM.. \ Kerr 165 88J 1348 T.VHLK OF CASKS. Stni't V MnrriHoii ;, \\\ •_»<»(', •j'^V Stn^'t V . gnintoii J 1' A I< .'if): I'J^r, I All l:u :MT striH't V WmIhIi :, \ii :u:t 'i-'o Stunrt \ \ii•* :j Pu^! -jaM .-|.ii I •-»:<•.> 1 K.Tr m »•;:« \r,] ]-j:\h I'Hit Mr..UH«li I r vV H '.'-iiJ 1-M»i r%\^U^ \. M. H.iirx J K««n .17 'rHrint \ WiitiKil 1 All ;i."i.» I'hx Inr \ itarkt t . 3 K> n lil I ■l:t\l<.r \ HiMj.«M . .". Ml I'.M iMvlor \. (m-P.W 'i l»||;r Mil Inyim \ Harrio 2 Kirr M'.i I'hv 1i>i \ . Sihitli Tuxlor \ . Trnvi!" riif .•• t . \ pnrt« . Tlu'inHU V TluTriNii 'riioinitf « lU'iiiill TitmiinN K\ imiie rimniMs K.\ |>Mil< i*li<>inft* ▼. ^!rl.«-<«l l'iii>ii)|iiMiii V VUmiihIihu . I Ktii«pM.ii \. IIhU'Ii 'i Kfi> 4'i."» . Thoinpt-iii V. liu|{ltiMiti Mil T. Ih:;i rh>iiii|»t*ni V. K<*iiii »i AH h;i .7m •.*•-'•■. -'it-J tVM •.'•k5 ..■;70 lo27 »'»•«• I .•.' I* A li Ah r.M'.t .1 Hitii l-.M Hi t All n.'. .V).*. tui '.»70 •J I'liK' ;n!t •'»•'• .4 All »H lU-i .:i All »«»7 7M| i Hkii 111! •-''*■'• S''* .*• All ;r.»i «74 I [Uri ".H« •.".'•.' ;«"►:< \iW 121« IIHI Jit) Thnmptirtu >. Keith AJl 1R3 Iitia lh..in|»~.ii \. K.'itl. r. All 780 Th<>iii|MM>n V »)vi«li V AllllH i? Th^mp^.n ▼. lU.«vl u All 7 «J6 i; iil>:i 2H2 I'is.n .MT '2Mi 57:1 H'iH 7(;7 IlKt.) I'J'J :.vi :;i >'M.", •-'Ul IfW 1IH.I8 '.»»>.s . ..'ill rj:i'_' . . . »»;:• H:m . i:.i l'.';w i-.'Hi '.'.v.' *>M -.'IkI -.770 lM'J7 li'.MI 7 »".• . r.:i »»70 I .'.♦; lo-j 7H| ..wr> 2 Hi niA -t't'j ;«»H MH I21M lliil ju; .... htia 780 •»7 •i2«i 'I'ABI.K OF CASKS. 1840 Th()iu[i.Hcti T. Tlio IiivtV,'. Iiih. Co Hil T 1871 TA'Jt ThompHou V. WalHh •» All ;{(I0 1225 Thonif V. H<>(l"li ;} K«»rr a3",t 941 Thiiriu- V. Caiuiivn 2 Korr .'581 i][)2 Tli<>rnt< V. Scovil 3 Korr .J57 213 226 Tliurjjixr v. Berry 2 Ktirr 31 1 241 ThurKar v. CUrko 2 Kerr 370 21'. Thurj^n' \. TriiviH 2 All 272 217 It'i2 "I'il.l.it- V. AIIhm .3 Kt-rr 2H0 1 1? 121 'riHilalt' V. CoiinoU 1 Kt-rr 401 12H TiHiUh' V. ll.trtt 1 AH 2;">7 '.»23 'l'..t)iii V Unt.liiiiHon 3 Kerr 233 1224 Tobin V. La> tt.ii 2 AH 584, 622 108 164 Tompkins V. Til>bits 1 Han 317 479 616 '.»23 Torr.-riH Kx parte I llan 1% 686 T..\v»'r V. (,'()x I Puji 323 li»70 TuwtT \ . Ht..pheuw)n 5 All 93 310 988 T../or V. HiilcliiiiHOU 1 Hun 540 621 H81 Trunk K\ parti' 1 V \ B 277 280 1270 TraTih Hx part«« 1 Hau 30 1 174 TravjM. Ill Ti> 1 P& B 337 725 Travis V. iMa/.ier 2 Haii 265 215 942 Trt'f. th.-n V. Carinaii Trm T 1831 909 Tntos V. Kt>ll\ Trill T 1833 1103 True aiul StairM v. Athertuii 3 I'ti^,' \H) 37 Trufinaii v. Dixou 2 1' A B 33 671 Truoman v. \Vo 1278 TrUHtueM Ht. Audriwx l.'hiiixh v Ker^jUHoii 1 llau 273 1235 Tuok V. Ilanlin;" Tnii T 1867 9.36 Tucker V. Muirhliead 6 Ail 420 1228 TuftH V. llatheway 4 All 62 603 633 920 Turuor r. Craue Kast T 1833 .358 617 780 lurnor v. Doyle Triii T 1833 805 Turner v. Elliott Ber 117 l-'72 Turner v. (lilbirt 2 Kerr 46 1 248 Turu«r v. Ilamiltou 6 AH 156 374 776 TiiriitT V. Haiumoiul 2 Kerr 536 900 Taruur In re, Ex. parto ( 'handler.. . . 1 l'uf» 351 297 Turner V. K.iver 1 Han 91 318 TuUUKx parte 4 All 616 517 TuUle V. Smith 3 Kerr 643 231^ \'.m) YXhlA'. OF (ASKS. IT. lUtiran v. Moffritt 1 All 2'.W 1-226 tTntl««rwii V. rinvrrtM" 2 All lHr> jg Tpttnn 1 Hmh I lO (',79 Val'iilitH- V. Mji/U'toii D.mciuImt IH70 lUH.'l Vaiihu!.kirk v. lir.>«ii 1 Hau 2.1 315 V»iu.- V. ( ■ftinpl.«'n 1 K*6H I07H Verii.Tj Miniiij,' ('<>. v. Prf>k« »70 Vitttim V St«v«uH 2 lUu 215 . U)tW V.)t<» ». guinxler 2 I'lij; 112 178 \ye\ \. wman »} All :{H8 475 Wnu Kx parU- I Kt-rr 17'. lO NVulk.r V. Mayor. Ac. St. John .... I Vnu. H'» '^7^ Walki-r V. PeudU-Uiii 5 All 102 631 WaJlac« V. i oUm»n 5 All Ii» 7»1 Wallacx; V. MiUiki-n Triii T IHHl 1H33 20 10 rti? Wallsce T. Scott I All 2f.l HMI7 Wttllac- V V.niulJ I Ktrr :. 1H« liWJ .'.-"J Walliice V. W.xhIh 1 Man JW 533 P261 Walnh V. Fairw..Rthir 2 All 423 372 Wanl V P»rkhill 2 P & IJ 221 Pi21 Ward V. Dviw It. r 21 U2 I06i» WarU V. McNiihol 3 All VJ'.i 315 WwiHuu V. Taylur 1 Hau 1P2 HTl WiiUrliiiry «. !)vw«; 3 Pujj 070 »"'• \Nat«-r».ur> \. Uewtj 2 P .V H •! 47« W.Url.ury v Nixon . .2 P A li 3?3 54 «08 Wal«rbi.UH4- V. Marino lua Co 3 Ki'rr 039 fiJI? Wat^n.un \. Morrow 2 P .V li 11 1 "m Wathi.ii Kx part«j 3 Win W^ ♦'''U 1 lalt-y 1 K..rr 124 76 Hay 3 Kerr 559 44« MarkH 2 K«rr 094 , 426 801 I'orter 3 K«»rr 187 '^•'»7 lfc)b«rta :» K.Tr rm H 39 \Ui\mrtn 1 All HW WO WaiMou \. WatMou V. WatiMtii V. Watwm V Wataou V. WatHon V Wat*.ii V Bumtuemi 2 K«rr 02 101 3(V. 5W T4BLE OF CASES. lUf)! 1-226 u.jy f.74 19 io:n H»a r,79 iU8:i 316 MH -Jlft . . . ii;«i I<>7M 1 *2«)9 . . . . H«)« m7o . URW 17H 476 10 278 631 7»1 ..20 10 ft 17 1067 IKti) ;i88 ti.'ll . .588 VMl 372 1221 ..112 106;» 315 8T1 »7H 476 54 «0« 627 ir.7 879 76 44S 426 804 2.'«7 liau yyfi ....30f. 560 WatHon V. Rinclair 3 All . 143 VVattorH V. Lonlly 2 K«rr 13. . . W«H 937 W.l.ion V. Wolilon 2 Hiui 18H .Wi W.'lliiiK K\ parte 3 I'li;; 217 CM 113B \\<41s V. Tr.nlioliu 2 All 371 384 Wi'iitwDrth V. llaUftt 2 K.mt ".tU) 6ltl '.US WtHt V. .Uhflrton 2 All tr>3 33 828 W«.Kl V Uutl.ilt;.- 3 !• .V H t)74 325 W.-stmort'lHiiii Hunk In n-... I H;iii '.0«i 764 1-J67 Wi-tnion- V. Bfi\tt r :'. I'ut; -'3.". 1U')5 Wtitnion; V. HiH4;,'s \ AH .V.)0 I02fi Wotjuorc! V. D. Hhrisay t All 199 -.iryC, 77."> I l.'.O W.aui.tr.' % . lUliotl I All 7-JO -MO W.tn>oro V I laniinx I \' A U 5»'6 35 W.amoro V. Iliinlin« 2 P .V B 338 MOH W.'tmor.' V. Kftchuin 5 All 408 666 12:)7 Wiitniori' V Wwtinori! V Wi'tMi'trc V. Mi-Ktii/ii Wetniort' V, Mi'Iifcl. , Wuluiort! V W«?tUiorf V. Ufud. . Wftniiirr V. Wc'tinoi i,..v> 4 All .'j02 510 •.12 543 T'JH 1241 l„.vy 5 All 5.-. 180 643 1030 1 FiS: l{.->57 '20i :. All .".31 1152 I'p.van I AH 4 12 '.t'J'i 2 Korr 130 1049 2 Vnn 113 .t)9tt Wt-tniorr V W.xkI 1 All 703 787 Wlu-'olttJi V Wolmor.' 3 All 482 •"'35 Wlu-«" Whet-l.T V. .Stewart 3 I'u^- 31)8 ii^i '-iW 3ti; Wh»'el.K-k V. Aia.ii 3 Kerr 172 781 Wh.lpley V. Lyons 2 Kerr 37r. 41 i Whelpl«y V. liiloy 2 All 2/5 Whi»e V. Barton. 1 llan I .015 1013 . . 18t) 788 White V. Bolliv.au 3 l>u« 109. White V. ('oleinau. . . 349 t AlH)30 .' '-iS^ Whitt V. Dawsoii 2 .Vll 51 . . White T. Macklin 1 K< •r94, White V. McUtinaia 3 Kerr 2i^ W hilo V. !»ot«rM 2 K. rr Whit« V. Smith. 347 . 81)3 .785 .189 4 AU335 r.6i 1212 Whitney V. MarkH 1 Kerr 139 179 82 976 Whittaker v. W olnh 2 Pu^; 436 435 623 625 928 Whittemore v. IIerh«rt 2 P & 1» 361 I' 1 WhittierT. Dibleo 2 Pu^ 243 374 8U 1111 iao2 TA15LK Ol- CASKS. Wi< hliun \. N B «ud C»u \{'y and liiiiiiCo 6 All 176 .V2« Wijii^nn V, Nixon I All 17 1 Uft Wnj»{iUH V. Dibble Triti T IH34 '.I.W VVi;;«ui.^ V. Kl.>v;irnih V. (iarriMxi Ber 17 lll'.» \Viia;inH V HvialnckM. . . . 1 Pu^ l.'.'J H.H 117M WiL'j,Mii» V. McLeMi 1 All f>7l 571 Wiu^iiih V. Hci vjl '2 Vun M iaO.'» \S intlitx* V. \Vhit«< Bit y7 2i 1 1M4 Wilbur V. TnU-n .'> All fi33 WJO Wibs ». \ltuiU\> . . 1 K.-rr I lO-lO Wi.h I V. KtliiiMi 1 Kerr 1 (>.'). "ilje '2:U» Wiliitra V. 1,rvi' 2 All Hl'i 1015 WiUjul.in V. Hiurth 3 Kirr I t.H 437 475 Wilhstoo V. Walhb '2 K.-rr IHI 917 Wiimot V. Babm»- and ('^irnwell litd 2 All ->M H06 Wilwin T. BriiK).- 2 All .'..$:> 64H 1179 WiIhou v. Cain«rii V. Killb' Bi-r .Tin 437 916 W.Lv.i. Kx lartr 1 I' A B 27 » 2H7 H20 \VilM>n Kv paru- 2 Hau 61 6H5 NViliM.n Kx parU. Triii T 1871 3.H4 Wilw.n % Hornbnxik and wife .... 1 Han 167 357 636 WilRou V JackH 2 All 535 64H Wilmm V. .larvih » Kerr 671 437 Wiltu,D V. Junt-n 1 All 65s 275 443 Wil-K.n V. Kerr Hal Bcr •2m 10» WiU.n V. Maxwell 6 All 219 Hfi Wili«>n V. McBrino 2 Kerr a3.-. 10 Wilaon ». 8»inuler» HjI T 18;W 919 W»!«.n V. Sihdair 3 All 34:i 49H 1199 WJlaimv. Htret't 2 All 629 1013 llOO V/iimm V. Street 3 All MO 215 2ftl j |^^ jj} Jfg Wolhanpter v. Foley 4 All 90 167 48 Wood Ex parte I AU 422 814 I16» W . . ..88 117M 571 13ti.'> ....■i4 UH4 U-JO HMO 'i:j6 2:w IM'i 262 ir.5 1 1 S(> 282 lOlf. .... 437 47f) 'J17 64 TiH 626 f.H» .79 771 '.n»6 . ..ioir> ior>i H06 ....64H 1175» 82 354 437 916 2H7 H20 684 3.H4 357 535 MH 437 275 443 KiH 77ft 10 yiu 498 1199 ...1013 llOO 1 179 '.91 655 I ....907 91» 48 814 116a 850 73ft TAl'.IJ': OF C.VSK.S. I :\r>A Woixl V. 'I'll.- Ciirlitoii Bmiich I'uiil wiiy ('.)nij.iiiiy 1 |»iij,' -J H 1 1 ](, WoikIh v. IMtTM 2 I'li^^ J7m •{,,(, Wcodstock KiiilwH) Co. V. 'ruppir. . 1 I Ian l'>i 7(;-j i2;{'» Woodwtinl V. McUim Midi '|' ),s:n i,,.>^ W()')^lit V Miiirtiy ;{ Pn^ C.-.r. 217 Wri^lit V. I'liilco n l>„j, ;jHl 773 Wright V. Hohortm.n 3 Kt«rr ~H 4,^,1 Wn^jlit \. MtackhoiiH.' .f, All l.">() (]);;> Wycr V (;.)HM 1 KfiT ]>M 7._>(| Y. YfutH K\ part.- -l All 3H1 127 <).i!» Yt'oiniuiH V McMaiiiiH .'I Kerr (5] 1272 York County Mutual IriH. Co. v Hart I. y Eant T ISfi.". 3r)5 Youn^ V Wooil .x-k :t K.rr .".'.1 27 MOl '.is.'t